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+This appeal was heard by this Panel on 10 and 11 February 2010.
+On 14 April 2010, while we were still considering our decision upon it, we were asked to consider applications for permission to appeal in two other cases in which foreign national prisoners had been detained pending their deportation after completing their sentences of imprisonment.
+Walumba Lumba, a citizen of the Democratic Republic of Congo, sought permission to appeal from a decision of the Court of Appeal [2010] EWCA Civ 111, [2010] 1 WLR 2168, dismissing his appeal from a decision of Collins J [2008] EWHC 2090 (Admin) on his claim for judicial review to refuse him a declaration that his detention by the Secretary of State for the Home Department was unlawful, for a mandatory order for his release and for damages.
+Mr Lumba together with Kadian Mighty, a citizen of Jamaica, also sought permission to appeal against the Court of Appeals decision dismissing their appeals from a decision of Davis J [2008] EWHC 3166 (Admin) to dismiss their claims for judicial review of the Secretary of States decision to detain them prior to their deportation and for damages for unlawful detention.
+We decided to give permission to appeal in both cases, and a direction was given that the appeals should be heard by a panel of nine Justices.
+As there was plainly a close relationship between the issues raised in those cases and this, we decided to withhold delivery of our judgments in this case until after the decision of nine Justices in the cases of Mr Lumba and Mr Mighty had been given.
+Following the delivery of the judgment of their cases in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2011] 2 WLR 671 on 11 March 2011 the parties were invited to make written submissions in light of that judgment.
+Having received and considered their submissions, we are now in a position to give our judgment in this case.
+The appellant is a national of Zimbabwe.
+He entered the United Kingdom with leave as a visitor and was then given leave to remain for one year as a student.
+But he overstayed his leave and, following his conviction for several criminal offences, he was sentenced to a period of imprisonment.
+The Secretary of State decided that he should be deported.
+On 8 March 2006 he was detained pending the making of a deportation order.
+He remained in detention for 27 months until 13 June 2008 when he was released on bail by the Asylum and Immigration Tribunal.
+On 12 November 2007 while still detained he sought judicial review by means of a mandatory order for his immediate release, a declaration that he was unlawfully detained and damages.
+On 25 January 2008 Munby J granted a declaration that the appellant had been detained unlawfully for various distinct periods amounting to about 19 months and he gave directions for the assessment of damages: [2008] EWHC 98 (Admin).
+But he declined to make an order for his release.
+The Secretary of State appealed against the declaration.
+The appellant appealed against the refusal of an order for his release, but he was later granted bail and that appeal was not proceeded with.
+On 6 November 2008 the Court of Appeal (Laws, Keene and Longmore LJJ) allowed the Secretary of States appeal, holding that the appellants detention had been lawful throughout.
+It remitted a new point which had been raised about the legality of the appellants detention during periods when Munby J held that he was lawfully detained for determination by the High Court: [2008] EWCA Civ 1204, [2009] 1 WLR 1527.
+The appellant now appeals to this court against the decision by the Court of Appeal that he is not entitled to damages for false imprisonment.
+Anonymity
+The appellant has been referred to hitherto in these proceedings as SK (Zimbabwe).
+Mr Tam QC for the respondent invited the court to maintain the order for the appellants anonymity in accordance with the practice for asylum cases recognised by the Court of Appeal.
+He suggested that references in the appellants application for asylum might expose him to risk if he were to be returned to Zimbabwe.
+Mr Husain for the appellant on the other hand did not ask for the order to be maintained.
+He did not suggest that there were any reasons for concern in his case.
+He said that he adopted a position of neutrality on this issue.
+There is no doubt that the court has power to make an anonymity order to restrain publication of a person named in its proceedings.
+In an extreme case, where he or his family are in peril of their lives or safety, this may help to secure his rights under articles 2 and 3 of the European Convention on Human Rights: In re Guardian News and Media Ltd [2010] UKSC 1, [2010] 2 WLR 325, para 26.
+Those are the rights that are most likely to be relevant if he is seeking asylum.
+It may also be made to secure that other persons, such as the press, show respect for his private and family life under article 8 of the Convention.
+But in such cases the persons article 8 rights must be balanced against the article 10 rights of the press and the general public interest in his being identified: In re Guardian News and Media Ltd, para 76.
+As the decision in that case shows, however, much will depend on the circumstances of each case.
+It is no longer the case that all asylum seekers as a class are entitled to anonymity in this Court.
+The making of such an order has to be justified.
+I am not persuaded that an order for the appellants anonymity is justified in this case.
+It must be recognised, of course, that lifting the order for his anonymity is not entirely without risk.
+It is rarely possible to predict with complete confidence what risks a failed asylum seeker will face when he is returned to his home country.
+But the position that the asylum seeker himself adopts will always be an important factor.
+He is likely to be in the best position to assess the risks and to say whether or not he needs anonymity for his protection.
+His counsel, Mr Husain, is very experienced in these matters and well able to form a sound judgment as to whether this is necessary or desirable.
+I would have expected him to inform the court if there were any grounds at all for wishing to preserve the appellants anonymity.
+Had he done so I would, of course, have given a good deal of weight to his submissions.
+As it is, in view of the position that he has adopted on the appellants behalf, I am not persuaded that there is anything to prevent his being identified in this case.
+I would set aside the anonymity order, and name the appellant as Shepherd Masimba Kambadzi.
+The appellants case
+The context for the appellants claim of damages for false imprisonment is provided by the provisions for the regulation of entry and stay in the United Kingdom which are set out in Part 1 of the Immigration Act 1971, as amended.
+His case, put very simply, is that the discretionary power to detain that is vested in the Secretary of State by paragraphs 2(2) and (3) of Schedule 3 to the 1971 Act was not exercised throughout his period of detention in the way it should have been according to the published policy, that for periods when his detention was not reviewed in accordance with the policy it was not authorised and that he is entitled to damages for false imprisonment because his continued detention was unlawful during those periods.
+A description of the statutory background and the system which, according to his own policy, the Secretary of State had undertaken to operate provides the starting point for an examination of this argument.
+The facts of this case are best understood in the light of that background.
+The statutory background
+Section 4 of the 1971 Act provides that the power to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers and that the power to give leave to remain in the United Kingdom, or to vary any leave, shall be exercised by the Secretary of State.
+Section 3(5) renders a person who is not a British citizen liable to deportation if the Secretary of State deems his deportation to be conducive to the public good.
+Section 4 gives effect to Schedule 2, paragraph 1(3) of which provides: In the exercise of their functions under this Act immigration officers shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given them by the Secretary of State.
+Section 5(3) of the 1971 Act gives effect to Schedule 3 with respect to the removal from the United Kingdom of persons against whom deportation orders are in force and the detention and control of persons in connection with deportation.
+Paragraph 2 of Schedule 3 appears under the heading Detention or control pending deportation.
+It provides in subparagraphs (2) and (3): (2) Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not a detained person in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order. (3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom and if already detained by virtue of sub paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise. [emphasis added]
+At first sight, the effect of paragraph 2(3) of the Schedule is that, once notice has been given of a decision to make a deportation order against him, the person may lawfully be detained until he is removed or departs.
+But, as Munby J observed in para 9 of his judgment, the powers conferred by those paragraphs are not unfettered.
+In R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704, 706 Woolf J said: Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations.
+First of all, it can only authorise detention if the individual is being detained pending his removal.
+It cannot be used for any other purpose.
+Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose.
+The period which is reasonable will depend upon the circumstances of the particular case.
+What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to exercise his power of detention.
+In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time.
+This statement was referred to with approval in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97.
+Lord Browne Wilkinson said of the power to detain pending removal in the Hong Kong Ordinance at p 111A D: Their Lordships have no doubt that in conferring such a power to interfere with individual liberty, the legislature intended that such power could only be exercised reasonably and that accordingly it was implicitly so limited.
+The principles enunciated by Woolf J in the Hardial Singh case [1984] 1 WLR 704 are statements of the limitations on a statutory power of detention pending removal.
+In the absence of contrary indications in the statute which confers the power to detain pending removal their Lordships agree with the principles stated by Woolf J.
+In A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68, para 8 Lord Bingham of Cornhill said that Woolf Js guidance in Hardial Singh had never been questioned.
+In R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, [2003] INLR 196, para 46, Dyson LJ said that counsel had correctly submitted that the following four principles (the Hardial Singh principles) emerge from it: (i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose; (ii) The deportee may only be detained for a period that is reasonable in all the circumstances; (iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention; (iv) The Secretary of State should act with reasonable diligence and expedition to effect removal.
+It was common ground in R (Lumba) v Secretary of State for the Home Department [2011] 2 WLR 671 that in this passage the effect of Woolf Js judgment was correctly summarised and it was approved as an accurate statement of the relevant principles: see, eg, paras 171 174.
+As Lady Hale said at para 199, the detention must be for the statutory purposes of making or implementing a deportation order and for no other purpose.
+The cases were reviewed by Lord Brown of Eaton under Heywood in R (Khadir) v Secretary of State for the Home Department [2005] UKHL 39, [2006] 1 AC 207, where the power to detain was exercised under Schedule 2 in the context of removing those refused leave to enter.
+Lord Brown said that, while it went without saying that the longer the delay in effecting someones removal the more difficult it becomes to justify the continued detention meanwhile, that was by no means to say that he does not remain liable to detention: para 31.
+In para 33 he said: To my mind the Hardial Singh line of cases says everything about the exercise of the power to detain (when it properly can be exercised and when it cannot); nothing about its existence.
+This case is about the way in which the power to detain can properly be exercised, but it raises issues about the existence of the power too.
+Does the Secretary of States failure to comply with his published policy for regular reviews to monitor changing circumstances deprive him of his executive power to continue to detain the detainee? Or does his power continue until a review shows that continued detention is no longer appropriate? I think that an examination of the Hardial Singh principles may help to resolve these questions, as they give rise to the need for these reviews.
+But it is clear that the appellant cannot succeed in his claim by relying solely on those principles.
+Mr Husain for the appellant submits that, while the Secretary of States decision to detain was lawful at its inception, it could become unlawful with the passage of time.
+There was no challenge to the judges findings that throughout the period that the appellant was detained the Hardial Singh principles were complied with.
+In the Court of Appeal Laws LJ said that the judge was entitled to be so satisfied: [2009] 1 WLR 1527, para 36.
+But Mr Husains case is that the matter does not rest there.
+He says that the Secretary of States published policy also regulates the existence of the power to continue detention, and that it must be followed in the absence of good reason not to do so.
+The published policy
+Before I come to the published policy I should mention that the Secretary of State was given power by the Immigration and Asylum Act 1999 to make rules for the regulation and management of detention centres.
+Rule 9 of the Detention Centre Rules 2001 (SI 2001/238) provides: (1) Every detained person will be provided, by the Secretary of State, with written reasons for his detention at the time of his initial decision, and thereafter monthly. (2) The Secretary of State shall, within a reasonable time following any request to do so by a detained person, provide that person with an update on the progress of any relevant matter relating to him.
+Rule 9(3) sets out a list of relevant matters for the purposes of that paragraph.
+In the Court of Appeal, para 45, Keene LJ said that it was clearly implicit in the rule that the Secretary of State has to reconsider the justification for detention, month by month, in the light of changing circumstances.
+At para 46 he said: The need for such regular reviews stems from the necessity for the Secretary of State to monitor changing circumstances in a given case lest his power to detain, on the principles set out in Ex p Hardial Singh [1984] 1 WLR 704, no longer exists.
+Even if the power still exists, he has a discretion to exercise which he must also keep under review.
+The importance of the detainee receiving regular statements of the reason why he is still detained is self evident: he needs to be in a position to know whether he can properly challenge the Secretary of States decision in the courts by way of an application for habeas corpus or judicial review or whether he can apply for bail on a meaningful basis.
+So the requirements imposed by rule 9 cannot be treated lightly, especially when one is dealing with administrative detention which deprives a person of his liberty without a court order.
+I agree with these observations, but I would prefer to apply them to the system of review that is set out in the policy rather than to the system required by rule 9(1).
+This is because it seems to me that the 2001 Rules are concerned with the regulation and management of detention centres, not with the way the discretion to detain is exercised.
+This is what the explanatory note says, and I think that Keene LJ was right to conclude in para 47 that rule 9(1) is not concerned with limiting the Secretary of States power to detain.
+In any event the appellant was detained in prison conditions to which the Rules do not apply for the first 14 months of the period of his detention.
+It was not until April 2007 that he was moved to a detention centre and the Rules applied to his case.
+I come then to the Secretary of States policy.
+It is to be found in a document issued by the Home Office called the Operations Enforcement Manual.
+Various versions of this manual have been existence since at least 2001.
+Mr Tam informed the Court that it was safe to proceed on the basis that the version used in these proceedings, which was downloaded in 2007, was the one that was in circulation while the appellant was being held in detention.
+Chapter 38 of the manual is entitled Detention and Temporary Release.
+It is here that the published policies regulating the exercise of the Secretary of States discretion, in accordance with the Hardial Singh principles, are set out.
+Paragraph 38.1, headed Policy refers to the 1998 White Paper Fairer, Faster and Firmer: a Modern Approach to Immigration and Asylum (1998) (Cm 4018) in which it was said there was a presumption in favour of temporary admission or release and that detention would most usually be appropriate to effect removal, initially to establish a persons identity or basis of claim or where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release.
+It refers also to the 2002 White Paper Secure Borders, Safe Haven: Integration with Diversity in Modern Britain (2002) (Cm 5687) in which the principles stated in the 1998 White Paper were reiterated.
+These criteria are said to represent the Governments stated policy on the use of detention.
+There then follows this important acknowledgement of the significance of the policy in public law: To be lawful, detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but must also accord with this stated policy. [emphasis added] Under the sub heading Use of Detention these words appear: In all cases detention must be used sparingly, and for the shortest period necessary.
+Paragraph 38.3 is headed Factors influencing a decision to detain (excluding pre decision fast track cases).
+It contains the following instructions: 1.
+There is a presumption in favour of temporary admission or temporary release. 2.
+There must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified. 3.
+All reasonable alternatives to detention must be considered before detention is authorised. 4.
+Once detention has been authorised it must be kept under close review to ensure that it continues to be justified. 5.
+Each case must be considered on its individual merits.
+Various factors which must be taken into account when considering the need for initial or continued detention are then set out.
+They include, among other things, the likelihood of the person being removed and, if so, after what timescale; whether there is any history of previous absconding or of failure to comply with conditions of temporary release or bail; and whether there is a previous history of complying with the requirements of immigration control.
+Paragraph 38.5 is headed Levels of authority for detention.
+It states: Although the power in law to detain an illegal entrant rests with the [immigration officer], or the relevant non warranted immigration caseworker under the authority of the Secretary of State, in practice, an officer of at least [Chief Immigration Officer] rank, or a senior caseworker, must give authority.
+Detention must then be reviewed at regular intervals (see 38.8).
+Paragraph 38.5.2 states that the decision as to whether a person subject to deportation action should be detained under Immigration Act powers is taken by a senior caseworker in the Criminal Casework Directorate.
+Paragraph 38.6 is headed Detention Forms.
+The opening sentence states: The Government stated in the 1998 White Paper that written reasons for detention should be given in all cases at the time of detention and thereafter at monthly intervals. [emphasis in the original] The authority to detain is known as Form IS91.
+Paragraph 38.6.1, which is headed Form IS91RA Risk Assessment, states: Once it has been identified that the person is one who should be detained, consideration should be given as to what, if any, level of risk that person may present whilst in detention. [Immigration officers] should undertake the checks detailed on form IS91RA part A Risk Factors (in advance, as far as possible, in a planned operation/visit when it is anticipated detention will be required.
+Paragraph 38.6.2, which is headed Form IS9I Authority to Detain, states that once the Detainee Escorting and Population Management Unit has decided on the location for detention they will forward a form to the detaining office detailing the detention location and the assessment of risk, which is attached to form IS91 and served on the detaining agent.
+If there is an alteration in risk factors a new form IS91 is issued.
+Paragraph 38.8 is headed Detention Reviews.
+It is on its provisions that the appellants argument that from time to time during the period of his detention he was detained unlawfully depends.
+It identifies the grade of officer by whom initial detention must be authorised.
+It then states: Continued detention in all cases of persons in sole detention under Immigration Act powers must be subject to administrative review at regular intervals.
+At each review robust and formally documented consideration should be given to the removability of the detainee.
+A formal and documented review of detention should be made after 24 hours by an Inspector and thereafter, as directed, at the 7, 14, 21 and 28 day points.
+At the 14 day stage, or if circumstances change between weekly reviews an Inspector must conduct the review.
+In [the Criminal Casework Directorate] an [higher executive officer] reviews detention up to 2 months. [A senior executive officer/Her Majestys inspector] reviews detention up to 4 months, the Assistant Director/Grade 7 up to 8 months, the Deputy Director up to 11 months and the Director up to 12 months and over. [emphasis in the original]
+The facts
+The appellant arrived in this country on 30 October 2002 as a visitor with six months leave to enter.
+On 9 May 2003 he applied for leave to remain for two years as a student.
+He was granted leave for one year until 30 April 2004.
+After that date he remained here without leave.
+On 9 December 2005 he was convicted on two counts of common assault and one count of sexual assault on a female.
+He was sentenced to 12 months imprisonment and ordered to be registered as a sex offender for five years.
+The judge did not recommend deportation.
+But on 7 March 2006, the day before he was due to be released from prison after serving six months of his sentence including time spent on remand, the Secretary of State decided to make a deportation order against him.
+He was detained under paragraph 2(2) of Schedule 3 to the 1971 Act and remained in custody at HMP Woodhill.
+On 24 March 2006 the appellant claimed asylum.
+On 11 April 2006 he asked the Secretary of State to move him from the prison to a detention centre, but his request was ignored.
+On 18 April 2006 the Citizens Advice Bureau wrote two letters to the Secretary of State on his behalf.
+In one it requested his urgent transfer to a detention centre.
+In the other it appealed against the notice of decision to make a deportation order.
+On 20 April 2006 and again on 3 May 2006 the Citizens Advice Bureau wrote to the Secretary of State on the appellants behalf contending that his continued detention was unlawful.
+Munby J said in para 19(xvi) that these letters were clearly relying upon the Hardial Singh principles, but they went unanswered.
+On 17 May 2006 the appellant, who had now been moved to HMP Lincoln, applied for bail.
+His application was refused on 19 May 2006.
+He applied for bail again on 15 September 2006.
+On 19 September 2006 the Secretary of State refused his application for asylum.
+Two days later, on 21 September 2006, the Asylum and Immigration Appeals Tribunal heard his appeals against the decision to deport, the refusal of asylum and a refusal to grant him relief on human rights grounds.
+The tribunal refused bail, having noted that he had previously committed an offence under the Bail Act 1976.
+On 4 October 2006 the Tribunal issued its decision dismissing all three appeals.
+It stated that the appellant, believing that he had a poor case in resisting deportation, had sought to bolster his prospects of success by inventing a false claim and that the Secretary of State was right to conclude that his deportation was necessary as the offences which he had committed were serious and he had been assessed as presenting a medium risk of sexual or violent offending upon his release.
+On 4 May 2007 he was moved from HMP Lincoln to Campsfield Immigration Removal Centre.
+On 6 July 2007, following a hearing for the reconsideration of his appeals that had been ordered in January 2007, the tribunal refused his appeals following reconsideration.
+On 24 August 2007 a deportation order was made and served on the appellant.
+As the appellant is a national of Zimbabwe, it is to Zimbabwe that the Secretary of State proposes to deport him.
+But two years previously on 4 August 2005 Collins J ordered by consent that removal of 30 Zimbabweans be suspended pending resolution of the issue in a test case, and the enforced return of failed Zimbabwean asylum seekers was suspended by the Secretary of State.
+The position as at the date of the hearing of this appeal was that no enforced returns of Zimbabwean failed asylum seekers had taken place since that date.
+By a letter dated 8 March 2006 the appellant was informed that he was to be detained and that his detention would be reviewed on a regular basis.
+If the reviews had been carried out in accordance with the policy set out in paragraph 38.8 of the manual they would have occurred on 10 March 2006 (after 24 hours), 16 March 2006 (7 days), 23 March 2006 (14 days), 30 March 2006 (21 days) and 6 April 2006 (28 days).
+They would have been carried out thereafter at monthly intervals.
+As to the monthly reviews, the paragraph 38.8 provides that the first two monthly reviews must be carried out by a Higher Executive Officer, the next two by a Senior Executive Officer or one of Her Majestys Inspectors, the next four by an Assistant Director or Grade 7 civil servant, the next three by a Deputy Director and, in the case of the monthly reviews in the second year of detention, by a Director.
+By the date of the hearing before Munby J the appellant had been entitled to 22 monthly reviews of the lawfulness of his detention in addition to the initial five reviews in the first month.
+In the event he had had only 10 reviews up to the date of the hearing.
+Of these, only six were conducted by officials of the required seniority.
+Of these, two were disavowed by the Secretary of State as flawed by material errors of fact.
+The details of the Secretary of States failure to carry out reviews at the required frequency and by the appropriate persons are set in the judgment of Munby J at paras 43 51 and 124 127 and in paras 11 13 of the judgment of the Court of Appeal.
+The judge described the picture that emerged from his analysis of the Secretary of States file as deeply disturbing and profoundly shocking.
+The Secretary of State has acknowledged that reviews should have been carried out.
+He has not sought to justify or excuse in any way their absence in the appellants case.
+He also accepts that these failures cannot be extenuated by the appellants own bad character or his previous conduct.
+It is now known, following disclosures that were made prior to the hearing of R (WL) Congo v Secretary of State for the Home Department [2010] EWCA Civ 111, [2010] 1 WLR 2168 by the Court of Appeal, that from April 2006 to September 2008 the Home Office applied an unpublished detention policy to all foreign national prisoners following the completion of their prison sentences pending their deportation.
+This followed the revelation on 25 April 2006 that during the past seven years over 1,000 such prisoners had been released from prison on completion of their sentences without being considered for deportation or deported.
+Illegal migrants and paedophiles, a toxic mix.
+The tabloids will go bananas.
+The words of a contemporary diarist, Chris Mullin, Decline and Fall (2010), p 94, capture the atmosphere of disaster that was engendered among ministers by this announcement.
+A few days later Charles Clarke was removed from his post and was replaced on 4 May 2006 as Home Secretary by Dr John Reid.
+A practice of blanket detention was then instituted with a ruthless determination that precluded consideration of the merits of any individual case and was wholly at odds with the presumption in the published policy in favour of temporary admission or temporary release.
+It remained in place until November 2007 when it was replaced by another unpublished policy which permitted release only in exceptional circumstances.
+It was not until 9 September 2008 that a revised detention policy was published.
+This course of events may explain the Secretary of States failure to carry out reviews at the required frequency and by the appropriate persons in the appellants case.
+But his case has been conducted throughout so far on the basis that the policy that was being applied to him was the published policy.
+The new issues that he has raised in light of these disclosures are presently stayed for determination by the High Court: see Laws LJ [2009] 1 WLR 1527, paras 42 44.
+The issues
+Munby J held that the appellant was unlawfully detained for the periods which he specified by reason of the Secretary of States failures to carry out the reviews required by rule 9(1) and the manual.
+The basis for that finding is to be found in the following passage in his judgment [2008] EWHC 98 (Admin), para 68: Integral to the scheme endorsed by Parliament in its approval of rule 9(1) of the Detention Centre Rules 2001, and integral to the policy laid down by the Secretary of State in paragraph 38.8 of the Operations Enforcement Manual, is the principle that someone is not to be detained beyond a certain period without there being a review undertaken at regular intervals and moreover, as required by the Secretary of States policy, a review undertaken at increasing high levels of seniority within the Home Office as the period of detention grows.
+Those reviews are fundamental to the propriety of the continuing detention, they are required in order to ensure that the continuing detention can still be justified in the light of current, and perhaps, changed circumstances, and they are, in my judgment, a necessary prerequisite to the continuing legality of the detention.
+In para 122 he said that, to the extent that the appellants detention had been unlawful as a matter of domestic law it had also, by parity of reasoning, been unlawful by virtue of section 6 of the Human Rights Act 1998, and that there was nothing in the circumstances of his case to give him a remedy under section 6 where there would not be a remedy under domestic law.
+So in practical terms the claim under article 5 of the Convention added nothing.
+In the Court of Appeal Laws LJ said that the issue was one of statutory construction: [2009] 1 WLR 1527, para 21.
+Ex p Hardial Singh showed that paragraph 2(2) of Schedule 3 to the 1971 Act was subject to implied limitations.
+The question, as he saw it, was whether a further limitation was to be found such that on a proper construction of paragraph 2(2) the power was subject to compliance with the rule and the manual: para 23.
+Summarising his conclusions, with which the other members of the court agreed, he said that compliance with the rules and the manual as such was not a condition precedent to a lawful decision pursuant to paragraph 2(2): para 25.
+The statute did not make it so, nor did the common law or the Convention.
+The Hardial Singh principles had to be complied with, but this was subject to control by the courts, principally by way of judicial review.
+In that event the particular context would be the vindication of those principles, but in this case it was plain that the appellant was held in compliance with them throughout the period of his detention.
+Mr Husain accepted that the Hardial Singh principles had throughout been complied with.
+On the other hand there had been repeated failures to comply with the system of review set out in the manual.
+Paragraph 38.8 of the manual states that continued detention in all cases under Immigration Act powers must be subject to administrative review at regular intervals.
+These reviews were essential to the continued legality of the exercise by the Secretary of State of his discretion to detain.
+He accepted that not all public law errors or policy defaults will render detention unlawful.
+The question will always be whether the error is sufficiently linked to the decision to detain or to continue detention.
+In this case the reviews required by the policy must be seen as the authority on which continued legality of the detention rests.
+He accepted that if his case were to succeed at common law his case under article 5 would not add anything.
+But in case it were necessary to address this argument he submitted that the appellant was entitled to the implied protections prescribed by article 5(1)(f).
+There had been a clear breach of national procedural rules because the Secretary of State had failed to comply with the rules and with the published policy, which he was required to follow unless there were good reasons not to do so.
+This was irrespective of whether the requirements that had been breached were conditions precedent to the exercise of the power to detain.
+As to the effect of the decision in Lumba, Mr Husain submitted that it was now clear that it was not a defence for the Secretary of State to show that the detention complied with the Hardial Singh principles and the requirements of the statute.
+Nor was it a defence for him to show that had the public law error not been committed the detainee would have been detained in any event.
+The serial failure to conduct the proper detention reviews was a material public law error, as it was essential to the legality of a temporarily unlimited and otherwise unchecked power to continue detention.
+The initial detention authority by the Secretary of States executive order was to be contrasted with orders to detain by a court.
+The reviews were an important safeguard.
+The failure to conduct them amounted, on the facts of this case, to an abuse of the power to detain.
+For the Secretary of State Mr Tam accepted that the Hardial Singh principles imposed implied limits on the exercise of the powers of detention that were set out in the statute.
+But he submitted that there was no provision or rule that limited the Secretary of States authority to detain in any other way.
+Things had not been done, probably in violation of his duty in public law, for which legal remedies might have been available.
+But the claim in this case was a very specific one.
+The question was not whether there had been a breach of the law.
+The appellant was seeking damages for false imprisonment.
+There was no basis for such a claim, as the detention was at all times within the original authority to detain under the powers that were to be found in the statute.
+That would have been plain from the documents that were available in his case had his continued detention had been challenged by judicial review.
+In the light of the judgments in Lumba, the central question for the court was whether each relevant breach of the procedural requirement to review detention was material in public law terms, that is to say whether it bore on and was relevant to the decision to detain.
+There was a difference between a requirement that was procedural only and a failure to apply a substantive rule which was capable of affecting the decision to detain or not to detain.
+A pure omission to review detention at the times specified by the policy was not material, at least in a case such as this where, had the review been carried out, the application of the substantive rules would have resulted in a decision to continue detention.
+But he accepted that if that submission was rejected, an omission to make a new decision by way of a detention review which was material in the Lumba sense must inevitably have the effect that the next period of detention was not authorised and the tort of false imprisonment was made out.
+The common law remedy
+The issue as to whether the appellant is entitled to damages, as focussed by these arguments, is a narrow one.
+It is common ground that the appellant was lawfully detained at the outset, as his detention was with a view to the making of a deportation order.
+There was a serious breakdown thereafter in the system of reviews mandated by the manual.
+But it is also common ground, as the judge found, that the Hardial Singh principles were complied with throughout the entire period.
+As Mr Tam points out, the continued detention could at all times have been justified by the Secretary of State had he been faced with an application for judicial review.
+Until 24 August 2007, when the deportation order was made and served on the appellant, the appellant was being detained under paragraph 2(2) pending the making of a deportation order.
+From that date onwards he was being detained under paragraph 2(3) because he had not been released on bail and the Secretary of State had not directed otherwise.
+On the other hand Mr Tam accepts that the breakdown in the system was a breach of a duty owed by the Secretary of State to the appellant in public law.
+The appellant could have obtained a mandatory order at any time requiring the reviews to be carried out if he had asked for this.
+The focus of attention therefore is on the authority to detain.
+Is the review essential to the legality of the continued detention? Or is it a sufficient answer to the claim for damages for the Secretary of State to say that, unless and until he directed otherwise, the authority to detain is there throughout in terms of the statute? I have not found this an easy question to answer.
+I do not accept the Court of Appeals view that the question is one of statutory construction.
+We are dealing in this case with what the Secretary of State agrees are public law duties which are not set out in the statute.
+Of course it is for the courts, not the Secretary of State, to say what the effect of the statements in the manual actually is.
+But there is a substantial body of authority to the effect that under domestic public law the Secretary of State is generally obliged to follow his published detention policy.
+In R (Saadi) v Secretary of State for the Home Department [2001] EWCA Civ 1512, [2002] 1 WLR 356, para 7, Lord Phillips of Worth Matravers MR, delivering the judgment of the court, said that lawful exercise of statutory powers can be restricted, according to established principles of public law, by government policy and the legitimate expectation to which such policy gives rise.
+In Nadarajah v Secretary of State for the Home Department [2003] EWCA Civ 1768, [2004] INLR 139, para 54 the Master of the Rolls, again delivering the judgment of the court, said: Our domestic law comprehends both the provisions of Schedule 2 to the Immigration Act 1971 and the Secretary of States published policy, which, under principles of public law, he is obliged to follow.
+In D v Home Office (Bail for Immigration Detainees intervening) [2005] EWCA Civ 38, [2006] 1 WLR 1003, para 132 Brooke LJ said that what the law requires is that the policies for administrative detention are published and that immigration officers do not stray outside the four corners of those policies when taking decisions in individual cases.
+Wade and Forsyth, Administrative Law 10th ed, (2009), pp 315 316 states that the principle that policy must be consistently applied is not in doubt and that the courts now expect government departments to honour their statements of policy.
+Policy is not law, so it may be departed from if a good reason can be shown.
+But it has not been suggested that there was a good reason for the failure of officials of the required seniority to review the detention in this case and to do so in accordance with the prescribed timetable.
+Mr Husain submitted that the effect of the statements in the manual was not just to create a legitimate expectation that the reviews would be carried out.
+He said that, as the discretion to detain under the statute had to be exercised reasonably according to the Hardial Singh principles, the authority for continued detention was dependent on decisions taken each time it was reviewed.
+Moreover an unlawful detention was not rendered lawful because there were circumstances that might have made it lawful.
+He sought support for that proposition in Clarke LJs observation in Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662, 666, that the detention in that case was unlawful because it was not reviewed until some event occurred to make it lawful.
+But that was a case where the plaintiff was detained under the Police and Criminal Evidence Act 1984, section 34(1) of which provided that a person arrested for an offence shall not be kept in detention except in accordance with the provisions of Part IV of the Act.
+Section 40, which was in Part IV, required reviews of the detention of person police custody at stated intervals.
+It was clear, as Clarke LJ said in the passage at p 666 that Mr Husain referred to, that the plaintiff was not being detained in accordance with the relevant provisions of the Act.
+As Mr Husain pointed out, the Secretary of State accepts that where the authorising statute provides that a particular procedural step is a precondition to the legality of the detention a failure to carry out the required step means that the detention is unlawful and entitles the detainee to damages for false imprisonment.
+That is what was decided in Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662.
+But that case, as Mr Tam put it, was all about the statute.
+The situation in this case is quite different, as there is no mention of the need for reviews in relevant paragraphs in the authorising statute.
+I agree with both Laws LJ in the Court of Appeal, para 25, and Lord Brown (see para 100, below), that Roberts provides little, if any, assistance on the effect of the Secretary of States failure to comply with his published policy.
+On the other hand the appellants argument that where the published policy is departed from the detention is unlawful finds some support in Nadarajah v Secretary of State for the Home Department [2004] INLR 139.
+Two appeals were before the court in that case.
+The appellants had both been detained on the ground that their removal from the United Kingdom was imminent.
+The Secretary of States published policy was not to treat removal as imminent once proceedings which challenged the right to remove had been initiated.
+It was also the policy of the immigration service when considering the imminence of removal to disregard information from those acting for asylum seekers that proceedings were about to be initiated.
+But this policy had not been made public and it was held that the Secretary of State could not rely on it.
+In para 54 the Master of the Rolls, Lord Phillips of Worth Matravers, said that he was obliged to follow his published policy.
+Asking itself the question whether the appellants detention had been lawful, the court held that it was not.
+In para 68, referring to Nadarajahs case, Lord Phillips said: The only basis upon which the Immigration Service could treat his removal as imminent was by applying that aspect of the Secretary of States policy which had not been made public, namely that no regard would be paid to an intimation that judicial review proceedings would be instituted.
+The Secretary of State cannot rely upon this aspect of his policy as rendering lawful that which was, on the face of it, at odds with his policy, as made public.
+In other words, it was unlawful for him to depart from his published policy unless there were good reasons for doing so.
+In para 72, referring to the case of the other appellant, he said that his detention was unlawful for the same reason as Nadarajahs detention was unlawful.
+In consequence of that decision he was entitled to damages: see para 15.
+In Mohammed Holgate v Duke [1984] AC 437, 443, Lord Diplock said that the Wednesbury principles are applicable not only in proceedings for judicial review but also for the purpose of founding a cause of action at common law for trespass by false imprisonment.
+It may be that not every public law error will justify resort to the common law remedy in every case.
+But I do not think that it is necessary to show that there was bad faith or that the discretion was exercised for an improper purpose in the present context.
+Where there is an executive discretion to detain someone without limit of time, the right to liberty demands that the cause of action should be available if the discretion has not been lawfully exercised.
+In R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58 Lord Bridge of Harwich said that the tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it.
+The requirements of the 1971 Act and Hardial Singh principles are not the only applicable law with which the Secretary of State must comply.
+Nadarajahs case shows that lawful authority for an executive power of detention may also be absent when there is a departure from the executives published policy.
+As Lord Brown points out, the published policy in Nadarajahs case entitled the detainee to release because it narrowed the grounds on which the power of detention was exercisable: para 107, below.
+In this case the policy was different because it was concerned not with the grounds for detention but with procedure.
+All it did was to provide that the detention would be reviewed by designated officers at regular intervals.
+Of course I agree with him that the policies are different.
+But I do not think that this difference means that Nadarajah offers no assistance in this case.
+On the contrary, it seems to me to indicate that a failure by the executive to adhere to its published policy without good reason can amount to an abuse of power which renders the detention itself unlawful.
+I use this expression to describe a breach of public law which bears directly on the discretionary power that the executive is purporting to exercise.
+The importance of the principle that the executive must act within the law was emphasised by Lord Bingham in his seminal Sir David Williams lecture, The Rule of Law [2007] CLJ 67, 72, when he said: The broader and more loosely textured a discretion is, whether conferred on an official or a judge, the greater the scope for subjectivity and hence for arbitrariness, which is the antithesis of the rule of law.
+This sub rule requires that a discretion should ordinarily be narrowly defined and its exercise capable of reasoned justification.
+That is a proposition which can be applied to this case.
+The published policy narrowed the power of executive detention by requiring that it be reviewed regularly.
+This was necessary to meet the objection that, unless it was implemented in accordance with a published policy, the power of executive detention was being applied in a manner that was arbitrary.
+So it was an abuse of the power for the detainee to be detained without his detention being reviewed at regular intervals.
+Applying the test proposed by Lord Dyson in Lumba, it was an error which bore on and was relevant to the decision to detain throughout the period when the reviews should have been carried out: [2011] 2 WLR 671, para 68.
+The authorities relied on by the Secretary of State
+Mr Tam referred to a series of cases where detention was held not to be unlawful despite errors of public law.
+In R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58 the appellant Hague had been segregated under a procedure which was not lawful which it was claimed amounted to false imprisonment, and another prisoner named Weldon claimed that he had been falsely imprisoned and battered by certain prison officers.
+Those claims were rejected, in short because the sentence of imprisonment provided lawful authority for the prisoners detention, that this could not be read as subject to any implied term with respect to the prison rules and that an otherwise lawful detention was not rendered unlawful by the conditions of detention.
+Mr Tam said that it was authority for the view that a public law error made in relation to a persons detention may entitle the person to seek judicial review but does not necessarily give rise to a remedy in damages.
+I would not quarrel with that proposition, but it begs the question whether the present case is one where a remedy in damages is available.
+Cullen v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 39, [2003] 1 WLR 1763 was a case about the right of access to a solicitor.
+The appellant was arrested under section 14(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1982.
+He asked to see a solicitor but his right to do so was deferred while he was in police custody.
+In contravention of the relevant statute the deferral was made before the appellant requested access and he was not given the reasons for delaying access.
+He claimed damages for false imprisonment.
+Lord Hutton said in para 48 that he saw no substance in this submission as he had been lawfully arrested and after his arrest was lawfully detained under the provisions of the statute.
+The premature authorisation and the breach of the requirement for reasons to be given did not render the detention unlawful.
+Lord Millett said in para 61 that compliance was not a condition of lawful detention.
+This decision indicates that the critical question is likely to be whether breaches of this kind undermine the lawful authority for the detention.
+On the view that was taken of the statute that applied in that case, they did not.
+The facts of this case, which concerns the Secretary of States discretion to maintain detention in accordance with his published policy, are quite different.
+In R (Saadi) v Secretary of State for the Home Department [2002] UKHL 41, [2002] 1 WLR 3131, which was concerned with the lawfulness of detention under paragraphs 2(1) and 16(1) of Schedule 2 to the 1971 Act, Lord Slynn of Hadley said at para 48 that the Secretary of States giving of no or wrong reasons did not affect the legality of the detention.
+Mr Tam said that no hint was given in that case that this failure gave rise to a problem as to its legality.
+But Collins J said that it was not argued in that case that the muddle about reasons rendered the decision to detain unlawful: [2001] EWCA Civ 1512, [2002] 1 WLR 356, para 16.
+Nor was the effect of a failure to review in issue.
+In R (Munjaz) v Mersey Care NHS Trust [2003] EWCA Civ 1036, [2004] QB 395 two psychiatric patients challenged the lawfulness of the policy on seclusion that was applied in their respective hospitals.
+Referring to what was decided in R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58, Hale LJ said that a person who had been deprived of his liberty in pursuance of a lawful power to detain cannot through the medium of a tort of false imprisonment complain about the conditions in which he is detained, at least by those who are lawfully detaining him: para 49.
+There had been a breach of the statutory code of practice, but this did not amount to false imprisonment: para 82.
+Mr Tam said that these observations supported his argument.
+But he accepts that Hague, Cullen and Munjaz were not concerned with the question whether the person concerned should be detained at all, but only with the conditions of detention (Hague and Munjaz) or the ancillary matter of legal advice while in detention (Cullen).
+It should also be noted that in Munjaz, para 77, Hale LJ said that if an individual decision has been taken unlawfully in public law terms and results in actions which are tortious if taken without lawful excuse, then tortious remedies will be available.
+The context is different, of course.
+And the claim for a remedy under the tort of false imprisonment was rejected.
+But her observation is entirely consistent with what was said in Nadarajah v Secretary of State for the Home Department: see para 39, above.
+The question as to the lawfulness of continued detention was directly in issue in R (Walker) v Secretary of State for Justice (Parole Board intervening) [2009] UKHL 22, [2010] 1 AC 553.
+That case arose out of the Secretary of States failure to provide the systems and resources that prisoners serving indeterminate sentences for public protection needed to demonstrate to the Parole Board by the time of the expiry of their tariff periods that it was not longer necessary for the protection of the public for them to remain in detention.
+There was a breach of the Secretary of States public law duty to provide these facilities.
+But, as I noted in para 5, counsel for the prisoners accepted that they were unable to challenge the legality of the warrant which authorised their continued detention.
+That provides the context for the passage in the speech of Lord Brown of Eaton under Heywood in paras 36 and 37 on which Mr Tam relies, where he said: 36.
+It is one thing to say as indeed is now undisputed that the Secretary of State was in breach (even systemic breach) of his public law duty to provide such courses as would enable IPP prisoners to demonstrate their safety for release and, to some extent at least, course enabling them to reduce the risk they pose, duties inherent in the legislation (the legislations underlying premise as Laws LJ described it [2008] 1 All ER 138, paras 24, 50); quite another to say that such breach of duty results in detention being unlawful.
+I respectfully agree with the Court of Appeal that it does not. 37.
+The remedy for such breach of public law duty indeed the only remedy, inadequate in certain respects it may be is declaratory relief condemning the Secretary of States failures and indicating that he is obliged to do more Past failures do not sound in
+damages
+In my own speech in Walker, para 6, I said that in terms of the statute the detention was lawful until the Parole board gave a direction for the prisoners release.
+The default position was that until the direction was given the protection of the public required that the prisoner should be confined.
+I do not think that Lord Browns observations can be applied to the different statutory regime that we are concerned with it this case.
+I agree with him that Walker is no more helpful to the respondents case than Roberts is to the appellant: para 104, below.
+For the same reason I do not think that the decision in Dunn v Parole Board [2008] EWCA Civ 374, [2009] 1 WLR 728, where the Court of Appeal applied the same approach where the Parole Board had failed to conduct a timely review and the appellant remained in detention as authorised by the statute, is of any assistance in this case.
+Discussion
+I cannot find in these authorities anything that requires us to hold that the claim for damages for false imprisonment is untenable or which points conclusively in the other direction.
+I would start therefore with principle that must lie at the heart of any discussion as to whether a persons detention can be justified.
+The liberty of the subject can be interfered with only upon grounds that the court will uphold as lawful: R v Governor of Brockhill Prison, Ex p Evans (No 2) [2001] 2 AC 19, 35; see also Tam Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97, per Lord Browne Wilkinson at p 111B.
+In Ex p Evans (No 2), p 42, Lord Hobhouse of Woodborough said: Imprisonment involves the infringement of a legally protected right and therefore must be justified.
+If it cannot be lawfully justified, it is no defence for the defendant to say that he believed that he could justify it.
+We are dealing in this case with the power of executive detention under the 1971 Act.
+It depends on the exercise of a discretion, not on a warrant for detention issued by any court.
+That is why the manner of its exercise was so carefully qualified by Woolf J in Hardial Singh.
+The power to detain must be exercised reasonably and in a manner which is not arbitrary.
+If it is not, the detention cannot be lawfully justified.
+The initial decision to detain will be held to be lawful if it is made under the authority of the Secretary of State pending the making of a deportation order.
+But it cannot be asserted, in the light of what was said in Hardial Singh, that the initial decision renders continued and indefinite detention lawful until the deportation order is made whatever the circumstances.
+Nor can it be said that it has that effect after the deportation order is made pending the persons removal from the United Kingdom when the person is being detained under paragraph 2(3).
+The authority that stems from the initial decision is not unqualified.
+The question then is what is to be made of the Secretary of States public law duty to give effect to his published policy.
+In my opinion the answer to that question will always be fact sensitive.
+In this case we are dealing with an executive act which interferes with personal liberty.
+So one must ask whether the published policy is sufficiently closely related to the authority to detain to provide a further qualification of the discretion that he has under the statute.
+Unlike the 2001 Rules, chapter 38 of the manual is concerned with the lawfulness of the detention.
+That is made clear in the opening paragraphs: see para 18, above.
+It has been designed to give practical effect to the Hardial Singh principles to meet the requirement that, to be lawful, the measures taken must be transparent and not arbitrary.
+It contains a set of instructions with which officials are expected to comply: see Schedule 2 to the 1971 Act, para 1(3).
+As I see it, the principles and the instructions in the manual go hand in hand.
+As Munby J said in para 68, the reviews are fundamental to the propriety of continued detention.
+The instructions are the means by which, in accordance with his published policy, the Secretary of State gives effect to the principles.
+They are not only commendable; they are necessary.
+The relationship of the review to the exercise of the authority is very close.
+They too go hand in hand.
+If the system works as it should, authorisation for continued detention is to be found in the decision taken at each review.
+References to the authority to detain in the forms that were issued in the appellants case illustrate this point.
+Form IS 151F, which is headed Monthly Progress Report to Detainees, concludes at the top of page 3 of 3 with the words Authority to maintain detention given, on which the officers comments are invited and beneath which his decision is recorded.
+The discretion to continue detention must, of course, be exercised in accordance with the principles.
+But it must also be exercised in accordance with the policy stated in the manual.
+The timetable which paragraph 38.8 sets out is an essential part of the process.
+These are limitations on the way the discretion may be exercised.
+Following the guidance that Nadarajah v Secretary of State for the Home Department [2004] INLR 139 provides (see paras 39 and 40, above), I would hold that if they are breached without good reason continued detention is unlawful.
+In principle it must follow that tortious remedies will be available, including the remedy of damages.
+There remains however the question of causation: what if the Secretary of State is able to show that, despite the failure to give effect to the policy, continued detention was nevertheless compatible with the Hardial Singh principles? Is it an answer for the Secretary of State to say that, as he could have authorised continued detention had lawful procedures been followed, no tort was committed? Is there room in such a situation for an award of damages?
+These questions are brought into sharp focus in this case.
+Mr Husain accepts that the Secretary of State would have been able to justify the need for the appellants detention under the Hardial Singh principles at all times had he been required to do so.
+But in Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662, 667, Clarke LJ said that it was nothing to the point to say that the detention would have been lawful if a review had been carried out or that there were grounds which would have justified detention.
+The statutory requirement with which he was dealing in that case existed in order to ensure that members of the public were not detained except in certain defined circumstances.
+In all other circumstances, he said, every member of the public is entitled to his liberty.
+I would apply that reasoning to this case.
+It is true that the reviews were not required by the statute.
+But there was a public law duty to give effect to the provisions about reviews in the manual.
+If the reviews were not carried out unless for good reason, which is not suggested in this case continued detention was not authorised by the initial decision to detain.
+It is no defence for the Secretary of State to say that there were good grounds for detaining the appellant anyway.
+Unless the authority to detain was renewed under the powers conferred by the statute he was entitled to his liberty.
+The decision in Lumba leads inevitably to this conclusion.
+As for the question of damages, the decision on this point in Lumba was that the appellants were entitled to no more than nominal damages as their detention was at all times justifiable.
+But this cannot be assumed to be so in every case, and in this case the facts have still to be established.
+So I would not foreclose entirely the possibility that the appellant in this case is entitled to more than a purely nominal award.
+The public law duty exists for the protection of everyone, from the most undeserving to the most vulnerable.
+The detention of children, those suffering from physical or mental illness and those who have been traumatised by torture are perhaps the most obvious examples.
+Paragraph 38.8 states that children are reviewed on a regular basis to ensure that the decision to detain is based on the current circumstances of the case and that detention remains appropriate.
+This sentence makes explicit in the case of children what must be taken to be the purpose of the reviews in all cases.
+The difference is that the system provides for more frequent reviews in the case of children.
+In any event, false imprisonment is a trespass against the person which is actionable without proof of special damage: Murray v Ministry of Defence [1988] 1 WLR 692, 701 702, per Lord Griffiths; Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662, 666 669, per Lord Clarke.
+There may well be issues as to quantum in cases of that kind.
+As Smith LJ said in Iqbal v Prison Officers Association [2009] EWCA Civ 1312, [2010] QB 732, para 83, an award of damages for false imprisonment is based on normal compensatory principles: see also Langley v Liverpool City Council [2005] EWCA Civ 1173, [2006] 1 WLR 375, para 70.
+It may be that the conclusion in this case will be that an award of nominal damages is all that is needed to recognise that the appellants fundamental rights have been breached.
+But that does not affect the issue of principle.
+I would hold therefore that the appellant is entitled to the remedy he seeks at common law.
+There will, of course, have to be an inquiry as to the quantum of damages if the amount is not agreed.
+Article 5
+The appellants alternative claim is that he has an enforceable right to compensation under article 5(5) of the Convention.
+He maintains that his detention did not satisfy the requirements of article 5(1)(f).
+It was not lawful, and it was not in accordance with a procedure prescribed by law.
+He relies on what the Grand Chamber said in Saadi v United Kingdom (2008) 47 EHRR 17, para 74, and in A v United Kingdom (2009) 49 EHRR 29; Application No 3455/05, 19 February 2009, para 164 as to what was needed to avoid the detention being branded as arbitrary.
+The protections referred to in these passages are, as Mr Husain points out, redolent of the Hardial Singh principles.
+It is agreed on both sides that the article 5 claim adds nothing to the claim at common law if that claim succeeds: see R (I) v Secretary of State for the Home Department [2003] INLR 196, per Simon Brown LJ at para 8; R (Munjaz) v Mersey Care NHS Trust [2004] 2 QB 395, per Hale LJ at para 70.
+Indeed there are reasons for thinking that the Hardial Singh principles are in some respects more favourable to detainees than Strasbourg requires, as Lord Brown indicates: see para 94, below; Chahal v United Kingdom (1996) 23 EHRR 413, para 112; Saadi v United Kingdom, para 72.
+So, as I would hold that the appellant succeeds on his common law claim, I propose to say no more about this alternative, except to note that article 5(5) gives a right to compensation where there has been a contravention of any of the provisions of the article.
+This would have provided the appellant with a remedy if, although there was a breach of the public law duty to conduct reviews, he was not entitled to claim damages at common law for false imprisonment.
+As it is, for the reasons I have given, I consider that he is entitled to that remedy and at least to nominal damages.
+Conclusion
+For these reasons, and for those given by Lady Hale and Lord Kerr with which I am in full agreement, I would allow the appeal.
+I would restore the declaration that was made by Munby J that the appellants detention by the Secretary of State was unlawful for the periods stated by him, except for a period of one month beginning on 6 December 2007 when the only defect in the decision to continue detention was that the review was carried out by an official of the wrong grade: see R (Lumba v Secretary of State for the Home Department [2011] 2 WLR 671, para 68 per Lord Dyson.
+I would also restore his orders as to the assessment, if the parties are not agreed, of the quantum of damages.
+LADY HALE
+Mr Shepherd Kambadzi may not be a very nice person.
+He is certainly not a very good person.
+He has overstayed his welcome in this country for many years.
+He has abused our hospitality by committing assaults and sexual assault.
+It is not surprising that the Home Secretary wishes to deport him.
+But in R (Roberts) v Parole Board [2005] UKHL 45, [2005] 2 AC 738, para 84, Lord Steyn quoted the well known remark of Justice Frankfurter in United States v Rabinowitz (1950) 339 US 56, p 69, that It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.
+Lord Steyn continued: Even the most wicked of men are entitled to justice at the hands of the state.
+And I doubt whether Mr Kambadzi is the most wicked of men.
+He had come to the end of the time he was due to serve as a result of his crimes.
+He may even have been expecting to be released from prison on 8 March 2006.
+If so, it must have come as a cruel shock when he was kept in prison (indeed for many months in the same prison where he had been serving his sentence), because the Home Secretary had decided to make a deportation order against him and at the same time to exercise the power to authorise his detention under paragraph 2(2) of Schedule 3 to the Immigration Act 1971.
+This gives the Secretary of State an apparently open ended power to authorise the detention of a person who has been served with a notice of intention to deport pending the making of the deportation order.
+The order was in fact made more than a year later, after which Mr Kambadzi was detained under paragraph 2(3) of the Schedule, which again gives an apparently open ended power to authorise detention pending his removal or departure from the United Kingdom.
+No court had ordered or authorised or approved this detention.
+The trial judge who sentenced Mr Kambadzi for his crimes had not even recommended it.
+A Government official decided to lock him up, on the face of it until a Government official decided to take the next step.
+But no one suggests that paragraph 2 of Schedule 3 gives the Government an unlimited power to authorise a persons indefinite detention without trial.
+Everyone knows that there are limits.
+Everyone also knows that if those limits are exceeded, the detention becomes unlawful.
+Everyone also knows that a person who is unlawfully detained is entitled, not only to be released, but to claim compensation for having been unlawfully detained.
+The person responsible for the unlawful detention is liable even if he acted in good faith and without any negligence: see R v Governor of Brockhill Prison, Ex p Evans (No 2) [2001] 2 AC 19 (compare the statutory protection given to those who detain mentally disordered or incapacitated people under the Mental Health Act 1983 or the Mental Capacity Act 2005: see s 139(1) and Schedule A1, para 3 respectively).
+All this is Hornbook law.
+The only question, therefore, is what the limits are to the Home Secretarys powers.
+In particular, are there procedural as well as substantive limits? The substantive limits were established as long ago as 1983, in the powerful extempore judgment of Woolf J in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704, and approved by the Privy Council in Tan Te Lam v Superintendent of the Tai A Chau Detention Centre [1997] AC 97.
+The detention has to be pending the deportation order or the removal, as the case may be, and cannot therefore be imposed for any other purpose.
+If it becomes clear that the purpose cannot be carried out, the detention becomes unlawful.
+In Tan Te Lam, above, the detention of these particular Vietnamese boat people became unlawful once it was clear that the Vietnamese Government did not regard them as Vietnamese nationals and would not have them back.
+It was also held in Hardial Singh that the Secretary of State cannot detain a person for longer than is reasonable in all the circumstances.
+This can depend upon the reasons for the delay.
+The Secretary of State has to exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time: Hardial Singh, at p 706F.
+If the Secretary of State is dragging his feet, then the period may become unreasonable.
+But if the detainee is unjustifiably stringing things out, for example by launching an obviously bogus asylum claim, it will not.
+In this case, Munby J held that the Home Secretary did indeed intend to deport Mr Kambadzi and that this was still a possibility.
+He had been detained for a very long time (22 months by the time that Munby J decided the case in January 2008).
+But for most of that time he had been pursuing a claim for asylum, which was clearly bogus, through all possible appellate routes.
+Thereafter he could not be deported because the Home Secretary had temporarily suspended removals to Zimbabwe.
+But there remained some prospect of achieving this.
+Hence the detention was substantively justified in accordance with the Hardial Singh principles.
+But Munby J held that the detention had, for much of those 22 months, been unlawful because of the failure of the Secretary of States officials to conduct the regular reviews laid down in his own Operations Enforcement Manual.
+No one doubts that the failure to conduct these reviews was unlawful, and that the Secretary of State could have been obliged by judicial review proceedings to comply with his stated policy, unless he had a good reason not to do so in the individual case: see the Court of Appeals judgment in this case at [2009] EWCA Civ 1204, [2009] 1 WLR 1527, para 25.
+The issue is whether that unlawful failure has also rendered the detention unlawful.
+The Manual seemed to think that it did.
+It stated that the purpose of the reviews was to ensure that the detention continued to be justified: see para 38.3.4.
+Further than that, it declared, at para 38.1: To be lawful, detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but must also accord with this stated policy.
+The Court of Appeal took the same view in Nadarajah v Secretary of State for the Home Department [2003] EWCA Civ 1768, [2004] INLR 139.
+At para 54, Lord Phillips stated that: Our domestic law comprehends both the provisions of Schedule 2 to the Immigration Act 1971 and the Secretary of States published policy, which, under principles of public law, he is obliged to follow.
+The failure to follow that published policy rendered the detentions unlawful in that case.
+The policy which was in question there related to the considerations that the Secretary of State would take into account in deciding to detain.
+It went further than the bare bones of the Hardial Singh principles.
+Nadarajah was a case principally brought under article 5 of the European Convention on Human Rights.
+The question, therefore, was whether the detention was lawful in the sense that it complied with the Convention standards of legality.
+It is not surprising that the Court held that, to be lawful, a decision to detain had to comply, not only with the statute, but also with the Secretary of States published policy.
+But it is also not surprising that the majority of this Court has now held, in R (Lumba and Mighty) v Secretary of State for the Home Department [2011] UKSC 12; [2011] 2 WLR 671, that a failure to comply with the Secretary of States published policy may also render detention unlawful for the purpose of the tort of false imprisonment.
+While accepting that not every failure to comply with a published policy will render the detention unlawful, I remain of the view that the breach of public law duty must be material to the decision to detain and not to some other aspect of the detention and it must be capable of affecting the result which is not the same as saying that the result would have been different had there been no breach (see the Lumba case, para 207).
+The question remains, however, whether a material breach of a public law duty to conduct regular reviews that is, a procedural obligation has the same consequence as a material breach of a public law duty to detain only if certain criteria are fulfilled.
+For the sake of the argument before this Court, we have to assume that the case falls into the former category breach of a procedural obligation even though the co incidence of timing and the evidence of the secret policy which emerged in Lumba might suggest that the real reason why the reviews were not conducted as required by the policy was that they would be a waste of time all these people were going to be detained under the new and secret criteria in any event.
+But might there be a distinction between the substantive limitations on the power to detain and the procedural requirements for exercising it?
+Sometimes a statute puts the effect of a failure to follow procedural requirements beyond doubt.
+The Police and Criminal Evidence Act 1984, section 34(1), states that A person . shall not be kept in police detention except in accordance with the provisions of this Part of this Act; those provisions require regular reviews; failure to conduct those reviews on time renders detention beyond the time when they should have been conducted unlawful: see Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662, CA.
+Sometimes a statute does not say in so many words that failing to comply with one of its procedural requirements will render the resulting detention unlawful, but the courts will construe the statute to mean that it does.
+An example is the prohibition in the Mental Health Act 1983, section 11(4)(a), of making an application for compulsory admission to hospital if the patients nearest relative objects: Re S C (Mental Patient: Habeas Corpus) [1996] QB 599, CA.
+In these cases, it is irrelevant that the person concerned could have been lawfully detained had the correct procedures been followed.
+Sometimes, however, the court will conclude that the lawfulness of detention does not depend upon the fulfilment of a particular statutory requirement.
+For example, in R (D) v Secretary of State for the Home Department [2006] EWHC 980 (Admin), it was common ground that failing to comply with the requirement in the (Immigration) Detention Centre Rules 2001 SI 2001/238 that immigration detainees be given a medical examination within 24 hours of arrival did not render the detention unlawful unless the detainees could show that it would have led to their earlier release.
+In short, there are some procedural requirements, failure to comply with which renders the detention unlawful irrespective of whether or not the substantive grounds for detention exist, and some procedural requirements, failure to follow which does not have this effect.
+If the requirement is laid down in legislation, it will be a matter of statutory construction into which category it falls.
+A clear distinction can be drawn between a requirement which goes to whether or not a person is detained and a requirement which goes to the conditions under which a person is detained.
+If the grounds exist for detaining a person in a mental hospital, for example, and the procedures have been properly followed, it is not unlawful to detain him in conditions of greater security than are in fact required by the nature and degree of his mental disorder.
+The same analysis applies to requirements which are imposed, not by statute, but by the common law.
+There are some procedural requirements which go to the legality of the detention itself and some which do not.
+The common law imposed a requirement that an arrested person be told, at the time, the real reason why he was being arrested.
+It did so for the very good reason that the arrested person had to know whether or not he was entitled to resist arrest.
+Mr Leachinsky was told that he was being arrested under the Liverpool Corporation Act 1921, but this Act gave the police officers no power to arrest him without a warrant.
+They did have power to arrest him on reasonable suspicion of having committed a felony.
+But, as they had not told him this, his detention was unlawful and he was entitled to damages for false imprisonment: see Christie v Leachinsky [1947] AC 573.
+As Lord Simonds put it, at p 592, if a man is to be deprived of his freedom he is entitled to know the reason why.
+It is not statute, but the common law, indeed the rule of law itself, which imposes upon the Secretary of State the duty to comply with his own stated policy, unless he has a good reason to depart from it in the particular case at the particular time.
+Some parts of the policy in question are not directly concerned with the justification and procedure for the detention and have more to do with its quality or conditions.
+But the whole point of the regular reviews is to ensure that the detention is lawful.
+That is not surprising.
+It was held in Tan Te Lam, above, that the substantive limits on the power to detain were jurisdictional facts, so the Secretary of State has to be in a position to prove these if need be.
+He will not be able to do so unless he has kept the case under review.
+He himself has decided how often this needs to be done.
+Unless and until he changes his mind, the detainees are entitled to hold him to that.
+Just as Mr Leachinskys detention was unlawful even though there were in fact good grounds for arresting him, the detainees detention is unlawful during the periods when it has not been reviewed in accordance with the policy, irrespective of whether or not the review would have led to their release.
+In my view, Munby J was right to hold that the reviews were fundamental to the propriety of the continuing detention and a necessary prerequisite to the continuing legality of the detention: see [2008] EWHC 98 (Admin), para 68.
+It follows also, from the decision in Lumba, that the fact if it be a fact that had the requisite reviews been held, the decision would have been the same makes no difference.
+However, the result of any review, had it been held, cannot be irrelevant to the quantum of damages to which the detainee may be entitled.
+False imprisonment is a trespass to the person and therefore actionable per se, without proof of loss or damage.
+But that does not affect the principle that the defendant is only liable to pay substantial damages for the loss and damage which his wrongful act has caused.
+The amount of compensation to which a person is entitled must be affected by whether he would have suffered the loss and damage had things been done as they should have been done.
+A differently constituted majority in Lumba has now clearly rejected the view, taken by some members of the Court, that deliberate breaches of constitutional rights might attract a conventional sum in vindicatory damages even if the officials conduct were not so egregious as to attract exemplary or punitive damages.
+That view has, of course, to be respected.
+I have reached these conclusions without reference to the Strasbourg case law under article 5 of the European Convention on Human Rights.
+I did initially think that article 5 might supply the answer to what, on any view, is not an easy question.
+Article 5 lays down an exhaustive list of the circumstances in which a person may be deprived of his liberty.
+These include, in article 5(1)(f), the lawful arrest or detention of a person against whom action is being taken with a view to deportation or extradition.
+The requirement of lawfulness is not limited to complying with the substantive and procedural provisions of the domestic law.
+The Convention itself imports extra requirements in order to ensure that the detention is not arbitrary.
+Some of these are procedural.
+Thus the detention of persons of unsound mind under article 5(1)(e), even if formally authorised, must be regularly reviewed in order to ensure that the criteria for detention still exist: see X v United Kingdom (1982) 4 EHRR 118.
+A principle of domestic law which allows people to be de facto detained without any formality at all contravenes article 5(1)(e) (as well as article 5(4)) even though the criteria for detention do exist: see HL v United Kingdom (2005) 40 EHRR 761.
+The Strasbourg court has not yet (so far as we are aware) addressed the procedural protection which may be required in order to prevent detention by the executive under article 5(1)(f) becoming arbitrary.
+The notion of arbitrariness for the purpose of article 5(1)(f) is, however, different from the notion of arbitrariness for the purpose of article 5(1)(b), (d) and (e).
+It does not require that the detention be necessary in order to achieve the stated aim: see Chahal v United Kingdom (1997) 23 EHRR 413; Saadi v United Kingdom (2008) 47 EHRR 427.
+But in Chahal, the Court did endorse the Hardial Singh principles, which incorporate a reasonable time limit on the detention.
+It is not impossible, therefore, that the Court would also impose a requirement for regular reviews.
+But it cannot be assumed that it would do so, or that it would expect these to be as rigorous as those which the Secretary of State has imposed upon himself.
+Thus, while the article 5 jurisprudence does not detract from the conclusions reached on domestic law, it does not add anything to them.
+For those reasons, I would allow the appeal and make the order proposed by Lord Hope, although I would not hold out much hope that Mr Kambadzi will be entitled to more than a nominal sum in damages.
+My reasons for reaching this conclusion are, I believe, no different from those of Lord Hope and Lord Kerr.
+But because the Court is so narrowly divided, I thought it necessary to reason the matter through for myself.
+The decision in Lumba has confirmed and strengthened me in these conclusions, although I acknowledge that, as this case was presented to us, the departure from published departmental policy was of a different kind from the departure in that case.
+Nevertheless, it was so obvious and so persistent and so directly related to the decision to continue to detain that it was clearly material in the Lumba sense.
+Whether in reality it was a Lumba case is not for this Court to decide.
+LORD KERR
+I agree with Lord Hope that this appeal should be allowed for the reasons that he has given.
+I also agree that the anonymity order should be set aside.
+As Lord Hope has said, it may be safely assumed that an asylum seeker will be alive to the risks that disclosure of his identity will entail and his stance on the question of anonymity, especially if he expresses no desire that it be maintained, will be of importance in striking the balance between avoiding unnecessary risks to the asylum seekers safety and the principle of open justice.
+The critical question in this appeal is whether compliance with the duty to review underpins the legality of the detention.
+It is accepted that there is a duty to review.
+It is further accepted that this duty had not been complied with.
+Does that make the detention unlawful? The respondent says that it does not, arguing that the situation encountered here is not comparable to that which demands compliance with a statutory obligation on which the condition of lawfulness of the detention depends.
+It is suggested that a failure to observe a public law duty should not render unlawful a hitherto lawful detention because there can be no sufficient nexus between such a failure and the lawfulness of the detention.
+One can acknowledge the initial appeal of the respondents argument.
+If a statute prescribes certain conditions that must be met in order that a person may be lawfully held in detention, where one of those conditions remains unfulfilled, the detention may be regarded as automatically unlawful.
+By contrast, the failure to fulfil a duty owed at public law will not necessarily render invalid a detention made on foot of a valid authorisation.
+The essential question must be whether there is an adequate connection between compliance with the duty and the lawfulness of the detention.
+The respondents argument proceeds on the premise that there can never be such a close link.
+The appellants case is that it depends on the circumstances some public law duties are so closely linked to the continued legality of the detention that a failure to comply with them transforms it from a condition of lawfulness to one which is unlawful.
+The case can be approached in a relatively simplistic way.
+The appellant has a legal entitlement to have the justification for his detention reviewed.
+This is not disputed.
+Likewise it is not challenged that where there has been a violation of that right, the appellant must have a remedy.
+Is that remedy to be confined to a declaration and/or an injunction? And if he is entitled to these forms of relief, why should he not be entitled to maintain an action for damages for false imprisonment? Given that what is at stake is the appellants liberty; that there is a presumption in favour of his release; that scrupulous adherence to the review standards is clearly contemplated in the language of the policy document; and that, plainly, these are considered to be vital safeguards of the detainees interests, I can discern no reason in principle to restrict the availability of all remedies that the law will conventionally afford for unlawful detention.
+On the contrary, it appears to me that access to the full panoply of such remedies is required in order that those fundamental interests are afforded proper protection.
+Another way of approaching the questions that arise on the appeal is to ask whether the initial authority to detain could be regarded as comprehensive of the issues which are germane to the continued lawfulness of detention.
+Quite clearly, detention which is lawful initially can be transformed to a condition of illegality see R v Governor of Durham Prison Ex p Hardial Singh [1984] 1 WLR 704.
+In his argument to this court on behalf of the Secretary of State, Mr Tam QC has asserted that where the detention is initially lawful, it cannot become unlawful, absent an undermining of the initial authority to detain.
+But there was no undermining of the initial authority in that sense in Hardial Singh yet the initially lawful detention became unlawful.
+That transformation occurred by a means other than by operation of an express statutory pre condition or by the extinction of the initial authority to detain.
+In Hardial Singh it was held that there were implicit limitations on the statutory power to continue to detain.
+If, for instance, the original purpose of detention viz to deport became incapable of fulfilment, the detainee could no longer be lawfully held.
+Why should implicit limitations in the form of an effective review of the continuing justification for detention not be recognised in the present case? Where someone is detained beyond the immediate post detention period, there may be two aspects to the question whether his detention is lawful.
+First there must be an initial valid authorisation; secondly, there must be compliance with such public law duties as touch directly on the question of whether he should continue to be detained.
+That proposition can perhaps be best exemplified in the context of a review of the justification of the reasons for continued detention by considering the purpose of that review.
+One starts with the unexceptionable proposition that it would be indisputably unlawful to hold someone in detention if there was no justification for it.
+Since, self evidently, an original justification for detention may prove, in light of events and circumstances that occur subsequently, to no longer obtain, periodic review of the justification for continued detention is required.
+The purpose of the review is to determine whether there are still good grounds to continue to hold the person in detention.
+If the review discloses that there are no such grounds, continued detention is unquestionably illegal.
+A person detained after it had been shown that there was no good reason for his continued detention would undoubtedly have the right to claim compensation for false imprisonment.
+As Lord Hope has said, support for the proposition that a departure from published policy as to detention will render it unlawful is to be found in R (Nadarajah) v Secretary of State for the Home Department [2004] INLR 139.
+Lord Brown has sought to distinguish that case from the present appeal on the basis that in Nadarajah the grounds on which the power of executive detention could be exercised had been narrowed but that no such narrowing of powers occurred here.
+But if the published policy in Nadarajah narrowed the grounds on which someone could be lawfully detained, why should the same consequence not accrue in the present case? In Nadarajah the stated policy was to release those whose removal was not imminent.
+Here it is to the effect that persons will only be detained if there is continuing justification for it, as verified by a prescribed system of review.
+Lord Brown suggests that in Nadarajah the detainee was entitled to release and in the present case that the appellant was entitled 'merely' to be reviewed for release.
+I respectfully disagree that such a distinction can be drawn.
+The essence of the appellant's entitlement was that he would be released unless continued justification for his detention existed.
+The review was the means by which the existence of the justification was to be established.
+It is not comprehensive of the detainee's entitlement.
+As in Nadarajah the appellant in the present case is entitled to be released in accordance with the terms of the relevant policy, if justification for his continued detention no longer obtains.
+What if no review takes place? If it is illegal to hold a person in detention where it has been established that there are no good grounds for doing so, can it be lawful to hold someone without examining whether such grounds continue to exist? In my view it cannot.
+Since it has been recognised that, in cases such as the appellants, periodic review is necessary in order to vouch the continued justification for detention, where that review does not take place, the detention can no longer be considered justified.
+The justification for continued detention cannot be said to exist and, absent such justification, the detention is unlawful.
+Likewise, in my opinion, where the review does take place but does not partake of the quality or character required to justify the continuance of detention, it becomes unlawful and gives rise to a right to claim false imprisonment.
+I believe that Munby J was right in his characterisation of the system of review as being integral to the lawfulness of the detention (para 68 of his judgment).
+It was not only so stated in the policy document, this concept pervades the entire approach of government to this type of detention.
+I accept, of course, that the Executive cannot make law and that the policy document should not be construed as a statute but it is not irrelevant that the Home Secretary made an unequivocal statement that failure to comply with the policy would be a breach of the law.
+This surely provides the foundation for a finding that the requirement of review is intimately connected to the continuing lawfulness of the detention and that it therefore constitutes an implicit limitation on the statutory power to detain.
+The majority in R (Lumba and Mighty) v Secretary of State for the Home Department [2011] UKSC 12; [2011] 2 WLR 671, has held that causation is not a necessary ingredient for liability.
+In that case the argument on behalf of the detained persons was put in this way: a public law error that bears directly on the decision to detain will mean that the authority for detention is ultra vires and unlawful, and will sound in false imprisonment.
+That argument was accepted by the majority of the court in Lumba.
+The public law error in the present case bore directly on the decision to detain in that it was made without the necessary review of the justification for detention.
+As the majority in Lumba also held, however, causation is relevant to the question of the recoverability of damages.
+For the reasons that I gave in my judgment in that case, I consider that if it can be shown that the claimant would not have been released if a proper review had been carried out, this must have an impact on the quantum of compensation and that nominal damages only will be recoverable.
+LORD BROWN (with whom Lord Rodger agrees)
+Does a failure to comply with a published policy periodically to review the exercise of a statutory power of executive detention constitute not merely the breach of a public law duty but in addition the tort of false imprisonment? Does it, in other words, undermine the lawfulness of continuing detention? That essentially is the issue before the Court on this appeal.
+Lord Hopes judgment contains a very full account of the facts, the arguments and the authorities relevant to this appeal so that my own judgment can be correspondingly short.
+The Immigration Act 1971, as amended, (the 1971 Act) provides (by paragraphs 2(2) and (3) of Schedule 3) that, in a case like this, once notice of intention to deport has been given, the Secretary of State may detain the person pending the making of the deportation order (paragraph 2(2)) and, once the deportation order has been made, the detainee shall continue to be detained [pending his removal or departure] unless he is released on bail or the Secretary of State directs otherwise (paragraph 2(3)).
+One suspects that when these provisions were enacted nearly 40 years ago Parliament envisaged the deportation process taking place within a comparatively short timescale, perhaps months at most.
+As it is, however, the process regularly stretches to years and not infrequently the position arises where, for one reason or another, it proves impossible for a considerable time to deport anyone to a particular country because of conditions there.
+In the past this has been true at various times of Somalia, of Afghanistan, of Iraq, and of Kosovo.
+Since 2005 it has also been true of Zimbabwe which is why this appellant, although given notice of an intention to deport him on 8 March 2006, and made subject to a deportation order on 24 August 2007, remains in this country to this day.
+More particularly, this is the background to his detention under Schedule 3 to the 1971 Act (following completion of a prison sentence) from 8 March 2006 to 13 June 2008 when, after 27 months of Schedule 3 detention, he was finally released on bail.
+That the Secretary of States power to detain people under paragraph 2 of Schedule 3 (the paragraph 2 power as for convenience I shall call it) is not unlimited is plain and undisputed.
+This was first established by Woolf J in R v Governor of Durham Prison Ex p Hardial Singh [1984] 1 WLR 704, approved by the Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 and subsequently distilled by Dyson LJ in R (I) v Secretary of State for the Home Department) [2003] INLR 196, para 46 into four propositions (which, again for convenience, I shall call the Hardial Singh principles), as follows: (i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose. (ii) The deportee may only be detained for a period that is reasonable in all the circumstances. (iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention. (iv) The Secretary of State should act with reasonable diligence and expedition to effect removal.
+Although suggested by the appellant to be broadly similar to the protections implied by the ECtHR into article 5(1)(f) of the Convention to ensure proportionality and guard against arbitrariness, to my mind the Hardial Singh principles, certainly as applied in a succession of later cases, are in fact more favourable to detainees than Strasbourg requires.
+In particular Strasbourg has consistently stated that there is no requirement that the detention be reasonably considered necessary, for example to prevent the person concerned from committing an offence or fleeing (para 72 of the Grand Chambers judgment in Saadi v UK (2008) 47 EHRR 427, following Chahal v UK (1996) 23 EHRR 413, para 112).
+Domestic case law, by contrast, holds that with regard to the second Hardial Singh principle the deportee may only be detained for a period that is reasonable in all circumstances [t]he likelihood or otherwise of the detainee absconding and/or re offending [is] an obviously relevant circumstance (my judgment in I at para 29, echoed by Dyson LJ at paras 48 and 49).
+I may note at this point that, notwithstanding that the full width of the Hardial Singh principles was clearly recognised by Munby J in the present case (paras 79 120), his conclusion was that none of them had been breached at any time, a conclusion unchallenged in the Court of Appeal.
+It follows that not merely was the appellant in a formal sense a person liable to be detained under the third Schedule (in the same way that the unsuccessful appellant in R (Khadir) v Secretary of State for the Home Department [2006] 1 AC 207 was held liable to detention and thus eligible for temporary admission under the second Schedule even though it might well have been unreasonable and in breach of the Hardial Singh principles actually to have detained him); here the appellant was liable to be detained in the fuller sense that throughout the period of his detention it would have been a lawful and reasonable exercise of the paragraph 2 power actually to detain him.
+On what basis, then, is it said that the appellants detention was unlawful so as to give rise to a claim for damages for false imprisonment? The argument revolves around the Secretary of States published policy: chapter 38 of the Departments Operations Enforcement Manual (the OEM) under the heading Detention and Temporary Release.
+The policy (at 38.3) includes a presumption in favour of temporary admission or temporary release, provides that [t]here must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified and that [a]ll reasonable alternatives to detention must be considered before detention is authorised, and dictates that [o]nce detention has been authorised, it must be kept under close review to ensure that it continues to be justified.
+Paragraph 38.8 then specifies how both the initial detention and any continued detention thereafter are to be authorised and kept under review, expressly providing both for the frequency and for the level of seniority of the reviews required.
+In the event, as Munby J recorded (para 48), although entitled (by the date of the first instance hearing) to no fewer than 22 monthly reviews of the lawfulness of his detention, the appellant had had the benefit of only ten reviews, of which only six were conducted by officials of the requisite seniority, and of those six, two had had to be disavowed as fatally flawed.
+Paragraph 38.1 of the policy, headed General, states: To be lawful, detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but must also accord with this stated policy.
+In a sense the question now before us is quite simply: is that statement accurate? Munby J in effect held that it was, not only as to the substantive requirements to justify continuing detention but as to the review requirements also.
+At para 68 of his judgment, having referred to rule 9(1) of the Detention Centre Rules (which, like Lord Hope, I think to be of only peripheral relevance) he continued: [I]ntegral to the policy laid down by the Secretary of State in paragraph 38.8 of the Operations Enforcement Manual, is the principle that someone is not to be detained beyond a certain period without there being a review undertaken at regular intervals and moreover, as required by the Secretary of States policy, a review undertaken at increasingly high levels of seniority within the Home Office as the period of detention grows longer.
+Those reviews are fundamental to the propriety of the continuing detention, they are required in order to ensure that the continuing detention can still be justified in the light of current, and perhaps changed, circumstances, and they are, in my judgment, a necessary prerequisite to the continuing legality of the detention.
+That paragraph identifies the critical question: is the holding of the reviews required by the OEM a necessary prerequisite to the continuing legality of the detention? In addressing this question it is convenient first to distinguish the present case from certain other authorities strongly relied upon by the respective parties.
+The appellant (supported by the Intervener) seeks to pray in aid the Court of Appeals decision in Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662.
+The case turned on the proper construction of Part IV of the Police and Criminal Evidence Act 1984 (the Part containing each of the sections to which I now refer).
+The detainee, following arrest, was initially kept in police detention pursuant to section 37.
+Section 40(1) provided that: Reviews of the detention of each person in police detention in connection with the investigation of an offence shall be carried out periodically in accordance with the following provisions of this section.
+Section 40(3)(a) provided that the first review shall be not later than six hours after the detention was first authorised.
+Central to the decision that, no such review within six hours having taken place, the detainees continued detention (until the point two hours, twenty minutes later when his detention was reviewed) had been unlawful (notwithstanding that had he been reviewed at the six hour point he clearly would still have been detained), was section 34(1) which provided that: A person arrested for an offence shall not be kept in police detention except in accordance with the provisions of this Part of this Act.
+Munby J appears to have thought Roberts strongly supportive of the appellants case.
+Laws LJ, giving the leading judgment in the Court of Appeal, thought otherwise.
+As he pointed out ([2009] 1 WLR 1527, para 25): [T]he requirement of periodic review, on the proper construction of the statute, had to be satisfied as a condition precedent to the legality of the suspects detention.
+It was made so by the express terms of section 34(1).
+But there is no analogue to section 34(1) of PACE to be found in paragraph 2(2) of Schedule 3 to the Immigration Act 1971.
+There is no reference in the sub paragraph, express or implied, to the Rules or the manual or to any Rules that might be made under powers in the Immigration Act or to any manual, or instructions, that might be issued by the Secretary of State.
+I cannot see how compliance with the letter of the Rules or manual could be said to be a sine qua non of a lawful exercise of the power to detain unless paragraph 2(2) (or other main legislation) made it so.
+But it does not.
+I agree with Laws LJ that Roberts provides little if any assistance to the appellant here.
+The respondent for his part seeks to rely on R (Walker) v Secretary of State for Justice (Parole Board intervening) [2010] 1 AC 553 in support of his argument that a failure in the review process does not undermine the legality of (the unreviewed) continuing detention.
+Walker was concerned with a number of appeals by IPP prisoners justifiably complaining of the Secretary of States systemic failures to provide the necessary resources and systems to enable such prisoners to demonstrate to the Parole Board that they could safely be released.
+The Divisional Court held in one of the cases, R (Wells) Parole Board [2008] 1 All ER 138, para 47: To the extent that the prisoner remains incarcerated after tariff expiry without any current and effective assessment of the danger he does or does not pose, his detention cannot in reason be justified.
+It is therefore unlawful.
+The Court of Appeal and the House of Lords disagreed.
+As I put it (at paras 36 37): It is one thing to say as, indeed, is now undisputed that the Secretary of State was in breach (even systemic breach) of his public law duty to provide such courses as would enable IPP prisoners to demonstrate their safety for release and, to some extent at least, courses enabling them to reduce the risk they pose, duties inherent in the legislation (the legislations underlying premise [as it was described in the court below]); quite another to say that such breach of duty results in detention being unlawful.
+I respectfully agree with the Court of Appeal that it does not.
+The remedy for such breach of public law duty indeed the only remedy, inadequate though in certain respects it may be is declaratory relief condemning the Secretary of States failures and indicating that he is obliged to do more.
+By the same token, submits Mr Tam QC, the undisputed (and here too systemic) breaches of the Secretary of States public law duty to review, consistently with his published policy, the justifiability of the appellants (and doubtless very many other detainees) continuing detention, although (as in Walker) deeply to be regretted and strongly to be condemned, does not result in the unreviewed detention being unlawful.
+To my mind, however, Walker is no more helpful to the respondents case than Roberts is to the appellants.
+Again, as in Walker, the primary legislation made the position clear: IPP prisoners were expressly made subject to the statutory requirement (under section 28 of the Crime (Sentences) Act 1997) that they were not to be released until the Parole Board was satisfied that their continuing confinement was no longer necessary for the protection of the public.
+In the same way that Schedule 3 to the 1971 Act contains no analogue to section 34(1) of PACE, so too it contains no analogue to section 28 of the 1997 Act.
+Laws LJ below identified (at para 21) the essential question here to be: What is the reach [of the paragraph 2 power] and characterised it as a question of statutory construction.
+At paragraph 35 he summarised his conclusions upon the question as follows: (i) Compliance with the Rules and manual as such is not a condition precedent to a lawful detention pursuant to paragraph 2(2).
+Statute does not make it so (contrast section 34(1) of PACE, and the Roberts case [1999] 1 WLR 662).
+Nor does the common law, or the law of the Convention. (ii) Avoidance of the vice of arbitrary detention by use of the power conferred by paragraph 2(2) requires that in every case the Hardial Singh principles should be complied with. (iii) It is elementary that the power exercised, being an act of the executive, is subject to the control of the courts, principally by way of judicial review.
+So much is also required by Convention article 5(4).
+The focus of judicial supervision in the particular context is upon the vindication of the Hardial Singh principles. (iv) In the event of a legal challenge to any particular case the Secretary of State must be in a position to demonstrate by evidence that those principles have been and are being fulfilled.
+However the law does not prescribe the form of such evidence.
+Compliance with the Rules and the manual would be an effective and practical means of doing so.
+It is anyway the Secretary of States duty so to comply.
+It is firmly to be expected that hereafter that will be conscientiously done.
+Mr Raza Husains attack upon that paragraph centres upon the proposition that, following the initial exercise of the paragraph 2 power, the Secretary of State has a continuing discretion whether to maintain the detention and is under a duty to exercise that discretion regularly in accordance with the published policy.
+So much Mr Tam accepts and, indeed, he further accepts that every failure to review a detention by the specified time or by the specified level of decision maker constitutes a breach of the Secretary of States public law duty.
+Of course, as Mr Husain recognises, not all breaches of public law duties arising in the context of detention would render its continuation unlawful see, for example, Cullen v Chief Constable of the Royal Ulster Constabulary [2003] 1 WLR 1763.
+The key question, he submits, is whether the breach is sufficiently closely linked to the detention decision.
+Here, he contends, it plainly was.
+The authority (Roberts aside) upon which Mr Husain principally relies is the decision of the Court of Appeal in R (Nadarajah) v Secretary of State for the Home Department [2004] INLR 139 (a report dealing also with Amirthanathans appeal I shall call them respectively N and A).
+That case too concerned the Secretary of States detention policy under chapter 38 of the OEM but not, as here, the review provisions rather the statement that one of the reasons for detaining an asylum seeker is that his removal from the UK is imminent.
+What was not part of the published policy and so was not publicly known was the Departments further policy, when considering the imminence of removal, to disregard information from those acting for asylum seekers that proceedings were about to be instituted, however credible that information might be.
+Ns solicitors had given notice of his intention to seek judicial review of the Secretary of States decision to certify his case as manifestly unfounded.
+As solicitors similarly had notified his intention to exercise his right of appeal against the Secretary of States rejection of his Human Rights Act claim to remain.
+The detentions of both on the ground that their removal was imminent were held unlawful.
+It was, said the Court of Appeal (at para 68), at odds with [the Secretary of States] policy, as made public.
+Additionally, in As case, it was clear that he had in fact been kept detained so as to facilitate the obtaining of the documentation needed for his removal.
+This too was at odds with the Secretary of States policy, as made public (para 72).
+I confess that for a time I was persuaded by the appellants argument and thought it supported by the authority of Nadarajah.
+In the end, however, I have reached the contrary view.
+Nadarajah now seems to me clearly distinguishable.
+Not because, as the Court of Appeal noted in that case at para 69, had Ns solicitor been aware of the Secretary of States unpublished policy she would have instituted judicial review proceedings earlier, so that the departure from the published policy was in fact causative of Ns continued detention.
+Rather Nadarajah is distinguishable because it is one thing, as there, to adopt a published policy which in substance narrows the grounds on which an executive power of detention is exercisable (the stated policy there being to release those whose removal was not imminent); quite another, as here, to have a policy and programme for review which dictates only the procedure whereby detention will regularly be reviewed.
+In the former case, under the published policy the detainee was entitled to release; in the latter case, he was not he was entitled merely to be reviewed for release.
+Naturally, upon the intended reviews, the detainee would be released if, as a matter of substance, his continuing detention were found no longer justifiable according to the published policy.
+The difference, however, seems to me crucial.
+In the one case a breach of policy renders continuing detention unlawful.
+In the other it does not.
+Lady Hale, at para 72 of her judgment, suggests an analogy between the present case and Christie v Leachinsky [1947] AC 573 which established the common law requirement that an arrested person be told, at the time, the reason for his arrest.
+For my part I find the suggestion unpersuasive.
+As Lady Hale herself observes, the requirement was imposed for the very good reason that the arrested person had to know whether or not he was entitled to resist arrest.
+Lord Simonds put it thus (p591): it is the corollary of the right of every citizen to be thus free from arrest [unless, that is, someone has the right to arrest him] that he should be entitled to resist arrest unless that arrest is lawful.
+How can these rights be reconciled with the proposition that he may be arrested without knowing why he is arrested? and a little later (p.592): . the subject is entitled to know why he is deprived of his freedom, if only in order that he may, without a moments delay, take such steps as will enable him to regain it.
+No such consideration arises or could arise in the present content.
+Their Lordships in Christie v Leachinsky would, I think, be astonished at the suggestion that any failure to give effect to a self imposed requirement for periodic review of the continuing detention of those awaiting deportation similarly renders that detention unlawful.
+I fear that they would be scarcely less surprised by the further suggestion (at para 77 of Lady Hales judgment) that, assuming such detention to be unlawful, it is to be compensated by no more than a nominal sum in damages.
+Indeed it seems to me that that very suggestion illustrates the ineptness of the proposed analogy between the two cases in the first place.
+The majoritys proposed solution to this case would quite simply devalue the whole concept of false imprisonment.
+Nothing that I have said should be taken to depreciate the desirability and importance of reviews under chapter 38 nor to excuse the Departments lamentable failures to conduct them, certainly in the appellants case and very probably in a host of others.
+As the courts below rightly observed, these matters go to the liberty of the subject and the picture which emerges is deeply disturbing, indeed profoundly shocking (Munby J, para 137).
+One obvious consequence of such serial failures is that it creates a substantially greater risk of detainees bringing successful proceedings for breach of the Hardial Singh principles (or, indeed, assuming they are still more favourable to detainees, the Secretary of States published policy statements going to the substantive criteria for release, as in Nadarajah itself) principles and statements to which the reviews are intended and likely to give effect.
+And, of course, as the Hardial Singh line of authority (and, indeed, Nadarajah) clearly establishes, a successful claim on these grounds carries with it a right to damages for false imprisonment, a right to damages, moreover, which, unlike that arising upon a failure to review such as envisaged by the majority (and, indeed, such as arose in Roberts see p669H), would naturally be untroubled by any question of causation.
+I recognise, of course, that, on this approach, it is only in cases where the detainee can show that he should have been released that the respondent will be required to pay, financially, for failures in the review process.
+Where, as here, all that can be shown is a series of public law breaches failures to comply with his own published policy as to reviews the only remedy, as in Walker, is by way of declaratory relief.
+Unsatisfactory though in one way this is, to treat a failure in the review process (perhaps merely a review held a day late or by someone of insufficient seniority and perhaps in respect of an obviously dangerous detainee) as of itself giving rise (as in Roberts) to a claim for false imprisonment would to my mind be unsatisfactory too.
+There may well be altogether too many people (above all children and other likewise vulnerable people) locked up awaiting deportation.
+Plainly a wise Secretary of State would instigate and operate a practicable and robust system for minimising the use made of the paragraph 2 power.
+As it is, like any other public body failing to comply with their published policy, he commits a breach of his public law duty, always a regrettable state of affairs.
+That said, however, a detainee, once properly detained, in my opinion remains lawfully imprisoned unless and until released on bail or by the Secretary of States direction or he establishes an entitlement to release pursuant to the Hardial Singh principles or other substantive policy statements governing how the Secretary of State will exercise his paragraph 2 power.
+This appellant could establish no such entitlement.
+In my judgment he remained lawfully imprisoned until he was bailed.
+It will be noted that I have not hitherto referred to article 5(1)(f) of the Convention save only to observe (at para 94) that domestic law is in fact more favourable to detainees awaiting deportation than Strasbourg requires.
+Since it now appears that this is to be a minority judgment, I need say no more than that there is nothing in the existing Strasbourg jurisprudence which would warrant a conclusion that a failure to give effect to the Secretary of States self imposed requirement for detention reviews would result in unlawful detention under the Convention irrespective of whether it constitutes false imprisonment under the common law. (I do not think I am in disagreement with the majority as to this see, for example, para 76 of Lady Hales judgment.) Nor, of course, is there any question here of a breach of article 5(4) of the Convention: the requirements of that provision are amply satisfied by the detainees right to seek bail or, indeed, judicial review.
+I would dismiss this appeal.
+The above (paras 90 113) is the judgment I wrote before an enlarged court of nine of us in November 2010 heard, and subsequently, on 23 March 2011, gave judgment in, R (Lumba and Mighty) v Secretary of State for the Home Department [2011] UKSC 12; [2011] 2 WLR 671 (Lumba).
+Given that a majority of the court (6:3) held that the particular public law breaches committed by the Secretary of State there resulted in the appellants being falsely imprisoned albeit a differently constituted majority (also 6:3) held that they can recover no more than nominal damages should I (must I) now change my judgment and agree with the majority that Mr Kambadzi too was falsely imprisoned?
+I have concluded not: it by no means follows from the majority view on liability in Lumba that there is liability here too and to my mind it would be still more undesirable to find liability established here than the minority of us thought it to be in Lumba itself.
+That the two cases are different is plain enough.
+As Lord Dyson observed in para 61 of his lead judgment: A somewhat similar problem arose in R (SK Zimbabwe) v Secretary of State for the Home Department In that case the unlawfulness lay in the failure of the Secretary of State to comply with her policy which prescribed the procedural requirements for reviews of FNPs who are already in detention.
+The present case concerns the substantive requirements for the initial detention of FNPs as well as their continued detention.
+Lady Hale too (para 198) recognised that on the issue of liability Lumba is a stronger case than is still before the court in SK (Zimbabwe) because the illegality alleged (and now admitted) went to the criteria for detention rather than to the procedure for authorising it.
+Although, obviously, the court in Lumba was not required to consider the consequences in terms of liability of a public law failure to comply with the Secretary of States self imposed requirements for the review of continuing detention, there appear to me a number of passages in the judgments of those holding liability to be established there, strongly suggesting that they might well have taken a very different view in the present case.
+This is perhaps plainest at paras 193 and 194 of Lord Walkers judgment: It is a big step to extend the [Anisminic] principle to a claim for damages for false imprisonment, where a defendant may have his professional reputation at stake and may not enjoy the procedural protections which attend judicial review (strict time limits, and the discretionary nature of the remedy granted).
+I would prefer a more demanding test, that in a case where an extant statutory power to detain has been wrongly used there would be a private law claim only if the misuse amounted to an abuse of power (including but not limited to cases of misfeasance or other conscious misuse of power). 194 However, it is in my opinion unnecessary to decide the point in these appeals because the conduct of officials, including some senior officials, of the Home Office between April 2006 and September 2008 amounted to a serious abuse of power.
+Lord Dyson SCJ has . described in restrained language how senior officials were well aware of the risk (indeed the likelihood) of challenge and decided to run the risk, (including the proposal to let immigration judges take any hit), and how further damaging facts were disclosed by stages, some before Davis J, some before the Court of Appeal and some only in this court.
+Wherever the line is to be drawn (if, as I think, a line does need to be drawn between public law errors in detention policies which do or do not give rise to an action for false imprisonment) these appeals must in my view fall on the wrong side of the line from the Secretary of States point of view.
+Given that a line is to be drawn between public law errors amounting to the sort of serious misconduct which Lord Walker was clearly intending to denote by his use of the expression abuse of power and other public law errors which do not give rise to actions for false imprisonment, it is very far from obvious that Lord Walker would regard the failures in the review process here as an abuse of power.
+Lord Collins too, having referred (at para 220) to the Home Offices deliberate decision . to continue an unlawful policy and to the cynical nature of its approach generally in these cases, expressed himself (at para 221) satisfied that the serious breach of public law in this case has the result that the detention of the appellants was unlawful (emphasis added).
+Even Lord Dyson (para 68) expressly accepted that: It is not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment.
+In the present context, the breach of public law must bear on and be relevant to the decision to detain.
+Thus, for example, the decision to detain made by an official of a different grade from that specified in a detention policy would not found a claim in false imprisonment.
+It seems clear, therefore, that Lord Dyson would have rejected Mr Kambadzis case at least in respect of the four monthly reviews carried out by officials of the wrong grade although, I acknowledge, it is unclear what conclusion he would have reached with regard to the twelve omitted reviews.
+Of course, the three of us who dissented on liability in Lumba would by definition conclude that Mr Kambadzi must fail on liability in the present case.
+As for why, liability in Lumba notwithstanding, it would be wrong to find false imprisonment established here too, let me illustrate what seems to me the absurdity of such conclusion by the example I gave (at para 357) in Lumba: it would result in a detainee whose detention is reviewed every second month instead of monthly as the published policy dictates, alternat[ing] yo yo like between lawful detention and false imprisonment.
+To hold that false imprisonment is the consequence of a failure to comply with the substantive requirements for the initial detention of FNPs as well as their continued detention (Lord Dyson at para 61, quoted above) is one thing; to hold that the same consequence follows a failure to comply with the procedural requirements for reviews of FNPs who are already in detention (ibid) is quite another and to my mind a step altogether too far.
+I therefore remain of the view, the authority of Lumba notwithstanding, that this appeal should be dismissed.
+On the issue of anonymity I agree with Lord Hope.
+As was recently established by the Courts comprehensive and authoritative judgment given by Lord Rodger in In re Guardian News and Media Ltd [2010] 2 AC 697, the general rule is that parties to proceedings are named and that an anonymity order has to be justified.
+In my opinion there is no justification for such an order here and, indeed, Mr Husain on behalf of the appellant suggests none and seeks no such order.
+There may, of course, be good reason in certain asylum cases for maintaining the asylum seekers anonymity notwithstanding that his claim fails: the very fact of his having made a claim, albeit unsuccessful, could on occasion tip the balance and give rise to a genuine fear of persecution or article 3 ill treatment where previously none existed.
+Doubtless in any such case counsel, certainly counsel as expert and experienced as Mr Husain, would duly seek the necessary anonymity order.
+Given, however, that this appellants asylum claim was clearly bogus, it is unsurprising that no such application was made here and it is to my mind inconceivable that the appellants known involvement in these proceedings could give rise to any bona fide further asylum claim.
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+Each of the appellants has been convicted on indictment of a serious criminal offence.
+Each has had an appeal against conviction dismissed by the Court of Appeal.
+Each appeals on the ground that he did not receive a fair trial, contrary to article 6 of the European Convention on Human Rights (article 6) (The Convention).
+The appeal of each is based on the fact that there was placed before the jury the statement of a witness who was not called to give evidence.
+In each case the witness was the victim of the alleged offence.
+Mr Horncastle and Mr Blackmore were convicted of causing grievous bodily harm, with intent, to Mr Peter Rice.
+Mr Rice made a witness statement to the police about what had happened to him.
+He died before the trial of causes not attributable to the injuries that had been inflicted upon him.
+His statement was read at the trial.
+Although there was other evidence that supported it, the Court of Appeal concluded that the statement was to a decisive degree the basis upon which the appellants were convicted.
+Mr Marquis and Mr Graham were convicted of kidnapping a young woman called Hannah Miles.
+She made a witness statement to the police in which she described what happened to her.
+The day before the appellants trial she ran away because she was too frightened to give evidence.
+Her statement was read to the jury.
+A considerable body of oral evidence was also given at the trial.
+The Court of Appeal held that the appellants convictions did not rest on the evidence of Miss Miles to a decisive extent.
+The appellants challenge that finding.
+Mr Rices witness statement was admitted pursuant to section 116(1) and (2)(a) of the Criminal Justice Act 2003 (the CJA 2003), which makes admissible, subject to conditions, the statement of a witness who cannot give evidence because he has died.
+Miss Miles witness statement was admitted pursuant to section 116(1) and (2)(e) of the CJA 2003, which makes admissible, subject to conditions, the statement of a witness who is unavailable to give evidence because of fear.
+The principal issue raised by these appeals is whether a conviction based solely or to a decisive extent on the statement of a witness whom the defendant has had no chance of cross examining necessarily infringes the defendants right to a fair trial under articles 6(1) and 6(3)(d) which provide: (1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. (3) Everyone charged with a criminal offence has the following minimum rights: . to examine or have examined witnesses (d) against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.
+The appellants submit that an affirmative answer must be given to this principal
+issue.
+In each case it is submitted that the trial judge should have refused to admit the statement on the ground that it was a decisive element in the case against the appellants.
+This the judge could have done, either by reading down the relevant provisions of the 2003 Act so as to preclude the admission of hearsay evidence in such circumstances or by excluding it under section 78 of the Police and Criminal Evidence Act 1984 (PACE).
+In so submitting the appellants rely on a line of Strasbourg cases, culminating in the decision of the Fourth Section of the European Court of Human Rights (the Chamber), delivered on 20 January 2009, in the cases of Al Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1.
+In each of those applications statements had been admitted in evidence at a criminal trial of a witness who was not called to give evidence.
+The Strasbourg Court held that, in each case, the statement was the sole or, at least, the decisive basis for the applicants conviction.
+The Court reviewed its own jurisprudence and concluded that this established that the rights of each applicant under articles 6(1) and 6(3)(d) had not been respected.
+The Court took as its starting point the following statement in Luc v Italy (2001) 36 EHRR 807 at paragraph 40: where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by article 6.
+I shall call the test of fairness that this statement appears to require the sole or decisive rule.
+The Court of Appeal did not accept that the decision in Al Khawaja was
+determinative of the results of these appeals.
+It held that, in the circumstances of each of the appeals, the appellants had received a fair trial and dismissed the appeals.
+The approach to this appeal
+Article 43(1) of the Convention provides that within a period of three months from the date of judgment of the Chamber any party may, in an exceptional case, request that the case be referred to the Grand Chamber.
+Article 43(2) provides that a Panel of 5 judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance.
+On 16 April 2009 the United Kingdom requested that the decision of the Chamber in Al Khawaja be referred to the Grand Chamber.
+On 5 June 2009 the Panel of the Grand Chamber adjourned consideration of that request pending our judgment in the present case.
+Mr Tim Owen QC, for Mr Horncastle and Mr Blackmore, submitted that we should treat the judgment of the Chamber in Al Khawaja as determinative of the success of these appeals.
+He submitted that this was the appropriate response to the requirement of section 2(1) of the Human Rights Act 1998 that requires a court to take into account any judgment of the European Court of Human Rights in determining any question to which such judgment is relevant.
+He submitted that the decision of the House of Lords in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28; [2009] 3 WLR 74 exemplified the correct approach to a decision of the European Court.
+In that case the Committee held itself bound to apply a clear statement of principle by the Grand Chamber in respect of the precise issue that was before the Committee.
+Mr Owen submitted that we should adopt precisely the same approach to the decision of the Chamber in Al Khawaja.
+I do not accept that submission.
+The requirement to take into account the Strasbourg jurisprudence will normally result in this Court applying principles that are clearly established by the Strasbourg Court.
+There will, however, be rare occasions where this court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process.
+In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course.
+This is likely to give the Strasbourg Court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg Court.
+This is such a case.
+The decision of the Court of Appeal
+In recognition of the importance of these appeals for English criminal procedure
+the Criminal Division of the Court of Appeal sat five strong in a composition that included the Vice President and other senior judges with extensive experience of the criminal process.
+The court was thus particularly well qualified to consider the questions at the heart of these appeals.
+These questions are: (i) whether the regime enacted by Parliament in relation to the admission of the evidence of an absent witness at a criminal trial will result in an unfair trial and, if not, (2) whether the Strasbourg jurisprudence none the less requires the court to apply that regime in a manner contrary to the intention of Parliament.
+The Court of Appeal carried out an extensive survey of both domestic and Strasbourg jurisprudence.
+They concluded that the statutory regime produced a fair trial and that the Strasbourg jurisprudence did not require the court to apply that regime in a manner contrary to Parliaments intention.
+I endorse those conclusions and almost all the reasoning that led to them.
+I commend the Court of Appeals judgment and shall, in places, borrow from it.
+This judgment should be read as complementary to that of the Court of Appeal, not as a substitute for it.
+A summary of my conclusions
+The following are the conclusions that I have reached for reasons that I shall develop: (1) Long before 1953 when the Convention came into force the common law had, by the hearsay rule, addressed that aspect of a fair trial that article 6(3)(d) was designed to ensure. (2) Parliament has since enacted exceptions to the hearsay rule that are required in the interests of justice.
+Those exceptions are not subject to the sole or decisive rule.
+The regime enacted by Parliament contains safeguards that render the sole or decisive rule unnecessary.
+The continental procedure had not addressed that aspect of a fair trial (3) that article 6(3)(d) was designed to ensure.
+The Strasbourg Court has recognised that exceptions to article 6(3)(d) (4) are required in the interests of justice.
+The manner in which the Strasbourg Court has approved those (5) exceptions has resulted in a jurisprudence that lacks clarity.
+The sole or decisive rule has been introduced into the Strasbourg (6) jurisprudence without discussion of the principle underlying it or full consideration of whether there was justification for imposing the rule as an overriding principle applicable equally to the continental and common law jurisdictions. (7) Although English law does not include the sole or decisive rule it would, in almost all cases, have reached the same result in those cases where the Strasbourg Court has invoked the rule. (8) The sole or decisive rule would create severe practical difficulties if applied to English criminal procedure.
+Al Khawaja does not establish that it is necessary to apply the sole or (9) decisive rule in this jurisdiction.
+The common law approach to a fair trial
+The United Kingdom was the first country to ratify the Convention in 1951 and the Convention came into force in 1953.
+Since then the Strasbourg Court has repeatedly had to grapple in judgments relating to article 6 with the requirements of a fair trial.
+During the same period England and Wales and the Commonwealth countries that apply the common law have been involved in the same exercise, largely by means of legislation, as have the civil law jurisdictions which, in 1953, had a very different approach to the criminal process.
+The English criminal process is adversarial.
+Its focal point is the trial, which is the judicial part of the process.
+The investigation into a crime is carried out by the executive, in the form of the police.
+The police under the supervision of the independent Crown Prosecution Service, which is responsible for ensuring the fairness, impartiality and integrity of the process, charge the defendant with the offence, prepare the case against him and seek to prove it at the trial.
+Rules have been laid down to protect the defendant against unfair treatment during the investigation and preparation for trial.
+These include the caution and the right of silence, the entitlement to legal representation, rules governing questioning by the police, an embargo on questioning a defendant after he has been charged and an entitlement to know the case against him.
+Two underlying themes have marked the common law approach to a fair criminal trial.
+The first has been that the determination of guilt or innocence should be entrusted to a lay tribunal the jury in the case of the more serious offences and the magistrates in most cases of less serious offences.
+The second has been a reluctance to trust the lay tribunal to attach the appropriate weight to the evidence placed before them.
+These themes have been reflected in the rules governing the trial process.
+There are two principal objectives of a fair criminal trial.
+The first is that a defendant who is innocent should be acquitted.
+The second is that a defendant who is guilty should be convicted.
+The first objective is in the interests of the individual; the second is in the interests of the victim in particular and society in general.
+The two objectives are sometimes in tension and, where they are, the first carries more weight than the second.
+English law has different kinds of rules that are designed to ensure a fair trial.
+Some relate to the procedure itself, such as the right of the defendant to be informed of the case against him, to be given any information available to the prosecution that is relevant to that case, to have legal assistance, to decline to answer questions, to be exempt from further questioning once charged with a crime, to be tried in public at a single continuous trial at which all the evidence has to be adduced, to be present at that trial to confront and cross examine the witnesses who are called to give evidence, and to be informed of the identity of those witnesses.
+Other rules relate to the evidence that can be placed before the tribunal, be it magistrates or a jury, which is to rule on the defendants guilt.
+These are rules of admissibility.
+Jury trials are presided over by a judge who acts as gatekeeper as to what is and what is not permitted to be placed before the jury as evidence.
+This is an important safeguard for the defendant.
+The basic principle is that only the best evidence is placed before the jury, that is, the evidence that is most likely to be reliable.
+In 1953 this principle rendered inadmissible almost all hearsay evidence.
+Hearsay evidence is any statement of fact other than one made, of his own knowledge, by a witness in the course of oral testimony.
+Hearsay evidence was inadmissible even if it was a past statement made by someone who was called to give oral evidence and who could be cross examined about it.
+Furthermore, hearsay evidence was inadmissible, whether it assisted the prosecution or the defence.
+There were two principal reasons for excluding hearsay evidence.
+The first was that it was potentially unreliable.
+It might even be fabricated by the witness giving evidence of what he alleged he had been told by another.
+Quite apart from this, the weight to be given to such evidence was less easy to appraise than that of evidence delivered by a witness face to face with the defendant and subject to testing by cross examination.
+The admissibility of some categories of evidence was excluded because, although the evidence was probative, it was thought that the jury could not be trusted not to give the evidence more weight than it deserved.
+Its probative value was outweighed by its potentially prejudicial effect.
+Such evidence included evidence of a defendants previous bad character or criminal record and psychiatric evidence that suggested that the defendant might have a propensity to commit an offence of the type charged.
+Rules governing the admissibility of evidence are important aspects of both criminal and civil procedure.
+They have generated lengthy text books on the law of evidence. [I am not aware that the civil law systems have a comparable body of jurisprudence].
+A third category of rules related to the reasoning permissible in arriving at a conclusion of guilt.
+Of these the most fundamental were, and are, first that a defendant is deemed to be innocent until proved to be guilty.
+The jury cannot convict simply upon suspicion of guilt.
+More fundamentally, a jury cannot convict even if they consider it more likely than not that the defendant is guilty.
+They can only convict if they are sure, or satisfied beyond reasonable doubt that the defendant is guilty.
+But there were many more directions that a judge was required to give to a jury in relation to the process of reasoning that was permitted, or not permitted, in reaching their verdict.
+These sometimes required the jury to disregard evidence that was probative of guilt in order to guard against the risk that the jury would attach too much weight to such evidence.
+Thus the trial judge had to tell the jury that no adverse inference could be drawn from the fact that a defendant had elected not to go into the witness box and, in the exceptional case where the jury learnt that a defendant was a man of bad character, they had to be instructed that this made it no more likely that he was guilty of the crime charged.
+There were some circumstances in which common law or statute required the jury to be told either that they could not convict on the evidence of one witness alone unless this was corroborated, or that it would be dangerous for them to do so.
+This again reflected the perceived danger that a jury would give too much weight to certain categories of evidence.
+While some of these rules were designed to guard against the risk of an innocent man being convicted, others also met the requirement of fairness that called for equality of arms in a procedure that was adversarial.
+Exceptions to the rules
+Over the past half century it was recognised that the application, without exception, of some of these rules placed an obstacle in arriving at the truth that could not be justified.
+Witness statements were prepared close to the time of the crime that contained detail that the witness might not remember when called to give evidence months later.
+In such cases the hearsay rule might be evaded by permitting the witness to refresh his memory from the statement.
+Sometimes the rule operated in a way that was prejudicial to the defendant.
+Thus the fact that another man had confessed to the crime of which the defendant was charged was inadmissible.
+In other circumstances the rule excluded evidence that was plainly more reliable than the oral testimony of the witness.
+While the best evidence rule might justify the hearsay rule in relation to a witness who was available to give evidence, if, for some reason such as death or illness, the witness was not able to give oral evidence, a statement made by that witness might be the best evidence available of what had occurred.
+Sometimes the application of the rules resulted in the acquittal of defendants who were manifestly guilty see Myers v Director of Public Prosecutions [1965] AC 1001.
+Over the years a host of exceptions were created by the judges or by statute to these rules, and particularly to the hearsay rule, aimed at addressing these problems.
+In relation to civil proceedings the hearsay rule was effectively abolished by the Civil Evidence Act 1968.
+In relation to the criminal law, less far reaching changes were made by the Criminal Evidence Act 1965 and the Police and Criminal Evidence Act 1984.
+But these also included the very important general safeguard in section 78(1) of the latter statute, which remains in force.
+This provides: In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
+More significant changes were made to the hearsay rule in criminal proceedings by the Criminal Justice Act 1988, but these have been replaced by provisions of the CJA 2003.
+These provisions largely implemented the recommendations of the Report of the Law Commission dated 4 April 1997 (Law Com No 245) on Evidence in Criminal Proceedings: Hearsay and Related Topics.
+In 1995 the Law Commission had published a Consultation Paper on these topics, in response to a recommendation as to the need for reform made by a Royal Commission on Criminal Justice in 1993.
+As the Court of Appeal observed at paragraph 10, the consultation embraced judges, practitioners, academic lawyers and other experts and the code enacted pursuant to the Report was: informed by experience accumulated over generations and represents the product of concentrated consideration by experts of how the balance should be struck between the many competing interests affected.
+It also represents democratically enacted legislation substantially endorsing the conclusions of the expert consideration.
+The relevant provisions of the CJA 2003 have been summarised by the Court of Appeal at paragraphs 11 to 16 and I shall adopt that summary, subject to a small addition.
+Hearsay is not made generally admissible by this statutory code.
+The scheme of the code is as follows: It preserves certain specified common law categories of admissible (i) evidence (ss.114(1)(b) and 118). (ii) It makes specific provision for a limited number of categories of hearsay where there is special reason to make it admissible (ss.114(1)(a) and (c), 116 117, 119 120 and 127 129).
+It provides for a limited residual power to admit hearsay if the interests of (iii) justice require it (s.114(1)(d) and 114(2)). (iv) It establishes special stipulations to which hearsay evidence is subject (ss.121 126).
+Among the provisions of Part 11, Chapter 2 of the CJA 2003 in the second group are the following: (i) by s.116(1) and (2)(a) the statement of a witness who is unavailable because he is dead is, subject to conditions, made admissible; similar provisions apply to a witness who is medically unfit, absent overseas and cannot be brought to the UK, or cannot despite all practicable efforts be found; by s.116(1) and (2)(e) the statement of a witness who is unavailable (ii) because he does not give evidence through fear is, subject to conditions, made admissible; (iii) by s.116(3) fear is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss. (This is the addition I have made to the Court of Appeals summary); (iv) by s.117 the contents of business records maintained by those who can be expected to have had personal knowledge of the matters recorded are, subject to conditions, made admissible.
+In relation to a witness who is unavailable because he is dead (or unavailable for medical reasons or because he is abroad or missing), the conditions for admissibility are as follows: the evidence must be such as would be admissible if the witness were (i) present to give it orally (s.116(1)(a)); and the witness must be identified to the satisfaction of the court (s.116(1)(b)). (ii)
+Those same conditions apply also to the case of a witness who does not give evidence through fear.
+In that case an important additional condition must be satisfied.
+The court must be persuaded to admit the evidence and it must do so only when satisfied that it ought to be admitted in the interests of justice.
+In deciding whether or not this is so, the court must have regard to all relevant circumstances, but in particular to: (a) the contents of the statement; (b) any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement in the absence of the maker); (c) the possibility of alternative special measures for the protection of the witness, such as screens or video transmitted evidence.
+The statements of witnesses who are dead, ill, missing, or absent through fear are examples of hearsay made admissible because the evidence is otherwise unavailable.
+Other categories of hearsay are made admissible because, in the ordinary way, they are likely to be reliable.
+Business records are made admissible (by s.117 or, where a machine is involved, s.129) because, in the ordinary way, they are compiled by persons who are disinterested and, in the ordinary course of events, such statements are likely to be accurate; they are therefore admissible as evidence because prima facie they are reliable.
+So, to be admissible, it must be demonstrated that they are the product of information gathered by someone with personal knowledge of the matters recorded, and that anyone through whose hands they have passed has acted in the course of trade, business, profession or office (s.117(2)), and the court is not to admit them if there is doubt about their reliability (ss.117(6) and (7) and 129(1)).
+If the record was compiled for the purpose of the criminal proceedings, rather than simply in the usual course of business, there is an additional requirement that the source of the information be absent or will have no recollection of the material (s.117(5)): that is designed to ensure that if he can attend to give first hand evidence he does so.
+S.127 (preparatory work done by the assistants to experts) is a further example of hearsay evidence which is prima facie reliable and which is admissible for either party; its admission is hedged with a similar safeguard providing for non admission if the interests of justice point against it.
+S.128 (confessions by co accused) is another example of hearsay made admissible (at the suit of the defendant) in the interests of fairness to the accused and because a confession is prima facie, in the absence of reason to the contrary, likely to be true; the CJA 2003 preserves a balance between the competing interests of co accused by providing for exclusion unless it be shown that the confession was not obtained by oppression or anything else likely to render it unreliable.
+It follows that both in the case of unavailable witnesses, and in the case of
+apparently reliable hearsay, the CJA 2003 contains a crafted code intended to ensure that evidence is admitted only when it is fair that it should be.
+The CJA 2003 goes on, in the fourth group of its provisions, to lay down special stipulations applicable to all hearsay, designed to further the same end.
+They are as follows: (i) S.124 makes special provision for the admissibility of any material which it is contended challenges the credibility of an absent witness.
+The opposing party is enabled to put in evidence anything which he could have put in if the witness had been present, but he may also put in material which, if the witness had been present, could only have been asked of him in cross examination in circumstances where his answers would have been final; this puts the challenger to that extent in a better position than if the witness is present, and is designed to help to counterbalance the absence of cross examination of the witness in person.
+In most cases also, in addition to the statutory rules, a defendant who is faced with hearsay evidence will be entitled to ask the court to call upon the Crown to investigate the credibility of any absent witness and to disclose anything capable of challenging it.
+That exercise will ordinarily require the Crown to go considerably beyond what would otherwise be the duty simply to disclose what is already in its possession and capable of undermining its case; it will require active investigation of the bona fides, associates and credibility of the witness, so as to provide the defendant with, in addition to anything he already knows, everything capable of being found which can be used to test the reliability of the absentee. (ii) By s.125 the judge is required to stop any case depending wholly or partly on hearsay evidence if that evidence is unconvincing to the point where conviction would, in the judges opinion, be unsafe; this is an important exception to the usual rule of the law of England and Wales that the assessment of the weight of evidence is exclusively for the jury (see R v Galbraith (1981) 1 WLR 1039). (iii) S.126 preserves the general power of the judge (which existed at common law and is enshrined in s.78 of the Police and Criminal Evidence Act 1984) to exclude any evidence relied upon by the Crown (but not by a defendant) if its admission would have such an adverse effect on the fairness of the trial that it ought not to be admitted; the section adds a further obligation upon the judge to exclude hearsay evidence if its admission would generate satellite disputes which would cause an undue waste of time such as to outweigh the case for admitting it.
+It is significant, as the Court of Appeal has pointed out, that the Law Commission gave special consideration to whether there should be a requirement that hearsay should not be capable of proving an essential element of an offence unless supported by other evidence.
+The Commission was persuaded by the responses to consultation that this would not be desirable.
+It would require a complex direction to the jury of a type that had proved unsatisfactory in relation to other circumstances where the jury used to be directed to look for corroboration of evidence.
+The Commission concluded that the danger of a defendant being unfairly convicted on the basis of hearsay evidence alone would be met by the safeguards that it proposed, in particular that which was subsequently adopted as section 125 of the CJA 2003.
+The principal safeguards designed to protect a defendant against unfair prejudice as a result of the admission of hearsay evidence, seen in the context of the more general safeguards that apply to every jury trial, can be summarised as follows: i) The trial judge acts as gatekeeper and has a duty to prevent the jury from receiving evidence that will have such an adverse effect on the fairness of the proceedings that it should not be received. ii) Hearsay evidence is only admissible in strictly defined circumstances.
+In essence the judge has to be satisfied beyond reasonable doubt that the prosecution is not able to adduce the evidence by calling the witness. iii) Once the prosecution case is closed, the judge must withdraw the case from the jury if it is based wholly or partly on hearsay evidence and that evidence is so unconvincing that, considering its importance, the defendants conviction would be unsafe. iv) The judge has to direct the jury on the dangers of relying on hearsay evidence.
+The jury has to be satisfied of the defendants guilt beyond reasonable v) doubt. vi) The defendant can apply for permission to appeal against his conviction, which will be granted where reasonable grounds for appeal are demonstrated.
+A failure to comply with the safeguards outlined above, and in particular the admission of hearsay evidence contrary to the rules on its admissibility, will constitute such grounds.
+Where the Court of Appeal finds that there has been such a failure, the appeal will be allowed unless the court is satisfied that, despite the shortcoming, the conviction is safe.
+As the Court of Appeal observed at paragraphs 77 78, the CJA 2003 has now been in force for a number of years and it is clear that the admissibility of hearsay evidence is being cautiously approached by the courts see the passages quoted from R v Y [2008] 1 WLR 1683.
+Sir Robin Auld in his Review of the Criminal Courts of England and Wales (2001) into the workings of the criminal courts expressed the view, supported by a body of academic opinion, that the recommendations of the Law Commission did not go far enough.
+He recommended at paragraph 104 that hearsay should be generally admissible, subject to an obligation to adduce the best evidence, rather than generally inadmissible subject to specified exceptions as proposed by the Law Commission.
+But in the event (as indicated in para 29 above), it was upon the Law Commissions recommendations that the 2003 Act was essentially based.
+Hearsay exceptions in other Commonwealth Jurisdictions
+Other established common law jurisdictions, namely Canada, Australia and New Zealand have, by both common law and statutory development, recognised hearsay evidence as potentially admissible, under defined conditions, in circumstances where it is not possible to call the witness to give evidence, even where the evidence is critical to the prosecution case.
+An analysis of the position in those jurisdictions, prepared by Lord Mance, is annexed to this judgment as Annexe 1.
+This demonstrates that, under the common law and statutory exceptions to the hearsay rule recognised in those jurisdictions there is no rigid rule excluding evidence if it is or would be either the sole or decisive evidence, however those words may be understood or applied.
+Instead, the common law and legislature in these countries have, on a principled basis, carefully developed and defined conditions under which hearsay evidence may be admitted, in the interests of justice and on a basis ensuring that defendants receive a fair trial.
+Under the common law system of jury trial, the conditions relating to the admissibility of evidence combine, to this end, with the trial judges role as gatekeeper in applying them and his general residual discretion to exclude prejudicial or unfair evidence from going before the jury.
+Hearsay in the United States
+The position in the United States differs markedly from that in this jurisdiction and in the Commonwealth jurisdictions to which I have referred.
+In the United States, the Sixth Amendment to the Constitution provides that: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favour, and to have the Assistance of Counsel for his defence.
+The right under the Sixth Amendment to be confronted with the witnesses against him has recently been interpreted in an absolute sense by the majority of the Supreme Court in Crawford v Washington 124 S.Ct. 1354 (2004), reversing its previous decision in Ohio v Roberts 448 U.S. 56; 100 S.Ct 2531 (1980), and in Melendez Diaz v Massachusetts 25 June 2009.
+The majority in the Supreme Court in reaching these decisions took an originalist approach to the Constitution, relying on its view of the common law position in the late 17th century.
+The result of these United States decisions is to exclude any testimonial evidence whatever in respect of which there has been or can be no cross examination.
+Testimonial evidence is not precisely defined in these authorities, but includes police interrogations or prior testimony at a preliminary hearing or former trial (Crawford p.1374) and, in the light of Melendez Diaz, certificates of state laboratory analysts stating that material seized by police and alleged by the prosecution to be connected to a defendant was a prohibited drug.
+Business records or statements in furtherance of a conspiracy were, in contrast, identified in Crawford at p.1367 as by their naturenot testimonial.
+Crawford also recognised one possible exception to the principle requiring confrontation in respect of testimonial evidence, that is dying declarations (footnote 6, p.1367).
+Article 6(3)(d) has not been interpreted by the Strasbourg Court in the same way that the US Supreme Court has now interpreted the Sixth Amendment.
+The Strasbourg Court has accepted that there are circumstances that justify the admission of statements of witnesses who have not been subject to confrontation with the defendant.
+The possibility remains, however, that by propounding the sole or decisive test the Strasbourg Court has condemned as rendering a trial unfair the admission of hearsay evidence in circumstances where the legislature and courts of this jurisdiction and of other important Commonwealth jurisdictions (Canada, Australia and New Zealand) have determined that the evidence can fairly be received.
+This is a startling proposition and one that calls for careful analysis of the Strasbourg jurisprudence.
+Special measures and anonymity
+I referred earlier to the recognition at common law of the defendants right to
+know the identity of the witnesses to be called by the prosecution.
+This, coupled with the right of a defendant to know the case to be advanced against him, ensured that he could make proper preparations to examine the witnesses called at his trial.
+The right to know the witnesses identities was thus an important element in the right of confrontation.
+Where a witness is not prepared through fear to be seen to give evidence against a defendant there are two ways in which his evidence may none the less be placed before the court.
+If he has previously made a witness statement that statement can be read as evidence.
+Alternatively he may be persuaded to give evidence anonymously if special measures are taken to ensure that he cannot be recognised by the defendant.
+Similar issues can arise in respect of each method of adducing evidence and the Strasbourg jurisprudence sometimes does not draw a distinction between the two.
+In Al Khawaja 49 EHRR 1 the Court held that the sole or decisive rule applied equally in the case of each.
+Mr Perry QC for the Crown urged that we should not consider anonymous witnesses but should confine ourselves to the circumstances of these appeals which concern the reading of statements of absent witnesses.
+This was the course followed by the Court of Appeal, who suggested that the Strasbourg jurisdiction dealing with anonymous witnesses did not necessarily apply to absent witnesses.
+There is a difference of principle between a witness who cannot be called to give evidence because, for instance, he is dead or untraceable, and a witness who is able and available to give evidence but not willing to do so.
+It might be argued that, where a witness is in a position to give evidence, fairness demands that his evidence should not be used if he is not prepared to face the defendant in court without anonymity.
+But, as I shall show, both the Strasbourg Court and the United Kingdom Parliament and, indeed, the Ministers of the Council of Europe have recognised that in some circumstances it is permissible to allow witnesses to give their evidence anonymously.
+So far as a sole or decisive rule is concerned, I am not persuaded that there is a difference in principle between its existence in relation to absent witnesses and its existence in relation to anonymous witnesses.
+Each situation results in a potential disadvantage for the defendant.
+The extent of that disadvantage will depend on the facts of the particular case.
+I cannot see why a sole or decisive test should apply in the case of anonymous evidence but not in the case of a witness statement.
+The critical question is whether, in either case, the demands of a fair trial require that a sole or decisive test should apply regardless of the particular circumstances and, in particular, regardless of the cogency of the evidence.
+Accordingly, I propose to set out the approach of English law to anonymity.
+Some witnesses in criminal proceedings are intimidated by giving evidence or by the prospect of so doing.
+This is especially true of children and those who are mentally or physically disabled, but it can also be the case of victims who fear being confronted by the defendant, particularly in cases of sexual offences.
+Section 16 of the Youth Justice and Criminal Evidence Act 1999 makes those who are under 17 or incapacitated eligible for special measures when giving evidence.
+Section 17 does the same in the case of any witness if the court is satisfied that the quality of his or her evidence is likely to be diminished by fear or distress when testifying.
+Special measures include giving evidence screened from the defendant or by video link.
+Over the last 20 years judges purported to exercise a common law power to permit witnesses to give evidence anonymously, sometimes resorting to special measures in order to conceal their identities, where this was considered necessary in the interests of justice.
+In some cases permission was given because of the desirability of not disclosing the identity of undercover police agents; in others because of fear on the part of the witness of retaliation by or on behalf of defendants.
+In R v Davis [2008] UKHL 36; [2008] AC 1128 this practice was challenged before the House of Lords.
+The appellant had been convicted of murdering two men by shooting them at a party.
+He was identified as the murderer by three witnesses who had been permitted to give evidence anonymously, from behind screens, because they had refused, out of fear, to testify should their identities be disclosed.
+It was submitted on behalf of the appellant that this procedure was contrary both to the common law right of a defendant to be confronted by his accusers and to article 6(3)(d) of the Convention.
+Both limbs of this argument were accepted unanimously by the House.
+Lord Bingham of Cornhill at paragraph 5 of his opinion set out the history of the long established principle of the English common law that, subject to certain exceptions and statutory qualifications, the defendant in a criminal trial should be confronted by his accusers in order that he may cross examine them and challenge their evidence.
+He observed at paragraph 20 that the statutory exceptions to calling a witness in the CJA 2003 did not permit the adducing of a statement by any witness whose name and identity was not disclosed to the defendant and that the safeguards provided by that Act would be denied to a defendant who did not know the identity of the witness.
+Their Lordships held that it was not open to a judge to depart from the common law rule by allowing a witness to remain anonymous.
+While there might well be a need for such a measure in order to combat the intimidation of witnesses, it was for Parliament not the courts to change the law.
+In the course of his concurring judgment Lord Mance carried out an analysis of
+the relevant Strasbourg case law.
+At paragraph 25 Lord Bingham adopted this analysis and summarised its effect as follows: It is that no conviction should be based solely or to a decisive extent upon the statements or testimony of anonymous witnesses.
+The reason is that such a conviction results from a trial which cannot be regarded as fair.
+This is the view traditionally taken by the common law of England.
+In fact, as I shall show, Lord Bingham slightly overstated Lord Mances conclusion.
+As a result of this decision Parliament amended the common law.
+The Criminal Evidence (Witness Anonymity) Act 2008 gave the court the power to make a witness anonymity order in the circumstances and subject to the conditions prescribed by the Act.
+Such an order enables a witness to give evidence subject to special measures designed to protect the identity of the witness being known.
+Section 4 sets out the conditions for making such an order: (1) This section applies where an application is made for a witness anonymity order to be made in relation to a witness in criminal proceedings. (2) The court may make such an order only if it is satisfied that Conditions A to C below are met. (3) Condition A is that the measures to be specified in the order are necessary (a) in order to protect the safety of the witness or another person or to prevent any serious damage to property, or (b) in order to prevent real harm to the public interest (whether affecting the carrying on of any activities in the public interest or the safety of a person involved in carrying on such activities, or otherwise). (4) Condition B is that, having regard to all the circumstances, the taking of those measures would be consistent with the defendant receiving a fair trial. (5) Condition C is that it is necessary to make the order in the interests of justice by reason of the fact that it appears to the court that (a) it is important that the witness should testify, and (b) the witness would not testify if the order were not made. (6) In determining whether the measures to be specified in the order are necessary for the purpose mentioned in subsection (3)(a), the court must have regard (in particular) to any reasonable fear on the part of the witness (a) that the witness or another person would suffer death or injury, or (b) that there would be serious damage to property, if the witness were to be identified.
+Section 5 sets out the matters to be taken into consideration when deciding whether the considerations in section 4 are satisfied: (1) When deciding whether Conditions A to C in section 4 are met in the case of an application for a witness anonymity order, the court must have regard to (a) the considerations mentioned in subsection (2) below, and (b) such other matters as the court considers relevant. (2) The considerations are (a) the general right of a defendant in criminal proceedings to know the identity of a witness in the proceedings; (b) the extent to which the credibility of the witness concerned would be a relevant factor when the weight of his or her evidence comes to be assessed; (c) whether evidence given by the witness might be the sole or decisive evidence implicating the defendant; (d) whether the witnesss evidence could be properly tested (whether on grounds of credibility or otherwise) without his or her identity being disclosed; (e) whether there is any reason to believe that the witness (i) has a tendency to be dishonest, or (ii) has any motive to be dishonest in the circumstances of the case, having regard (in particular) to any previous convictions of the witness and to any relationship between the witness and the defendant or any associates of the defendant; (f) whether it would be reasonably practicable to protect the witnesss identity by any means other than by making a witness anonymity order specifying the measures that are under consideration by the court.
+Thus Parliament has decreed that the question of whether evidence is or is likely to be sole or decisive is relevant to the question of whether the court should permit it to be given anonymously but there is no mandatory rule prohibiting the admission of such evidence.
+Criminal procedure in the civil law jurisdictions
+paragraphs 10 and 11 Lord Rodger stated: In R(D) v Camberwell Green Youth Court [2005] UKHL 4; [2005] 1 WLR 393 at the introduction of article 6(3)(d) will not have added anything of significance to any requirements of English law for witnesses to give their evidence in the presence of the accused.
+An examination of the case law of the European Court of Human Rights tends to confirm that much of the impact of article 6(3)(d) has been on the procedures of continental systems which previously allowed an accused person to be convicted on the basis of evidence from witnesses whom he had not had an opportunity to challenge.
+We have not been referred to the travaux preparatoires to the Convention or to the reason why paragraph (3)(d) was included in article 6.
+The continental systems to which Lord Rodger referred are best exemplified by the French Criminal Procedure, upon which many others were based.
+This, together with other continental systems has undergone marked changes over the last fifty years, and is still facing proposed radical change.
+The marked difference between that system and the English system in 1953 was the importance of the inquisitorial phase of the French process, which, in the case of a serious offence, was the second of the three stages of the procedure.
+The first stage was a police investigation, under the supervision of the public prosecutor (ministre public), that ascertained that a crime had been committed and identified a suspect.
+The second stage was a judicial inquiry aimed at ascertaining the facts and determining whether there was a case against the suspect fit for trial (the instruction).
+This stage was inquisitorial, classically conducted by a juge dinstruction, an examining judge.
+The third stage was the trial itself.
+The instruction was conducted in private episodically, often over many months, during which time the suspect might be held in detention.
+It included repeated interrogations of the suspect, who seldom exercised his right to remain silent.
+It included examination of witnesses in the absence of the suspect and his lawyer, unless the examining judge chose to arrange a confrontation with the suspect.
+Interrogations or examinations were not recorded verbatim, but in the form of a summary of the evidence given, dictated by the examining judge and recorded by a greffier.
+In this way a dossier was built up.
+This dossier formed the basis of the conduct of the trial by the judge presiding.
+The reports of the Strasbourg cases show that evidence given during the instruction by witnesses whom the defendant had had no chance to question was frequently used at the trial.
+There was no bar to the reception of hearsay evidence nor rules of admissibility designed to prevent the tribunal at the trial from receiving evidence on the ground that its prejudicial effect outweighed its probative value.
+Generally speaking the instruction was the most significant stage of the criminal process all the more so because the guilty plea procedure was unknown.
+In this jurisdiction a defendant may decide to plead guilty at any stage between being charged and the trial.
+If he takes this course there will be no trial.
+Well over 80% of criminal prosecutions are resolved by a plea of guilty.
+If a trial takes place, this is because the defendant contests his guilt.
+Under the civil law system there is no such procedure.
+Guilt must always be proved at the trial.
+But if the defendant has confessed his guilt in one of the earlier stages of the procedure and does not retract that confession at his trial, the trial will be very much a formality.
+In this jurisdiction there is no judicial investigation, in the course of which a confrontation can take place between witnesses and the suspect.
+The investigation into a crime is carried out by the police, who do not act as judicial officers, although they act under the supervision of the independent Crown Prosecution Service (para 16 above).
+If the police obtain sufficient evidence to justify a prosecution, the defendant must then be charged.
+Thereafter he is immune from further questioning unless and until he chooses to give evidence at his trial.
+The Strasbourg jurisprudence prior to Al Khawaja
+The wording of article 6(3)(d) suggests that it required a procedure similar to that which followed from the application in this jurisdiction of the hearsay rule.
+It appears to require the witness to give his or her evidence live at the trial and thus to be subject to examination by or on behalf of the defendant.
+Some of the early jurisprudence supports this approach.
+Thus the Court held that the paragraph (3)(d) rights applied at the trial and not when a witness was being questioned by the police X v Germany (1979) 17 DR 231 or by the investigating judge Ferrari Bravo v Italy (1984) 37 DR 15.
+But, just as in this jurisdiction it was found that, in some circumstances, justice required exceptions to the hearsay rule, the Strasbourg Court came to accept that some exceptions had to be made to the strict application of article 6(3)(d).
+The Strasbourg jurisprudence deals with the two situations that raise similar issues of principle: the admission of evidence of a witness who is anonymous and the admission of evidence in the form of a statement made by a witness who is not called to testify.
+The Strasbourg jurisprudence in relation to article 6, and article 6(3)(d) in particular, has received detailed consideration by courts in this country on a number of occasions prior to this case.
+The conclusions reached, prior to the decision of the Strasbourg Court in Al Khawaja, were summarised by Lord Bingham in Grant v The Queen [2006] UKPC 2; [2007] 1 AC 1 at paragraph 17 (Strasbourg references omitted): The Strasbourg court has time and again insisted that the admissibility of evidence is governed by national law and that its sole concern is to assess the overall fairness of the criminal proceedings in question .
+The Strasbourg court has been astute to avoid treating the specific rights set out in article 6 as laying down rules from which no derogation or deviation is possible in any circumstances.
+What matters is the fairness of the proceedings as a whole. the Strasbourg court has recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, and has described the search for that balance as inherent in the whole ConventionThus the rights of the individual must be safeguarded, but the interests of the community and the victims of crime must also be respected.
+An example, not based on the present facts, illustrates the point.
+In Jamaica, as in England and Wales, as already noted, the statement of a witness may be adduced in evidence if he is shown to have absented himself through fear of the consequences to him if he gives evidence.
+In the case of a prosecution witness, such fear is likely to have been induced by or on behalf of a defendant wishing to prevent adverse evidence being given.
+As observed by Potter LJ in R v M (KJ) [2003] 2 Cr App R 322, para 59, echoed by Waller LJ in R v Sellick [2005] I WLR 3257, paras 36, 52 53, it would be intolerable if a defendant shown to have acted in such a way could rely on his human rights under article 6 (or section 20) to prevent the admission of hearsay evidence.
+Where a witness is unavailable to give evidence in person because he is dead, or too ill to attend, or abroad, or cannot be traced, the argument for admitting hearsay evidence is less irresistible, but there may still be a compelling argument for admitting it, provided always that its admission does not place the defendant at an unfair disadvantage.
+While, therefore, the Strasbourg jurisprudence very strongly favours the calling of live witnesses, available for cross examination by the defence, the focus of its inquiry in any given case is not on whether there has been a deviation from the strict letter of article 6(3) but on whether any deviation there may have been has operated unfairly to the defendant in the context of the proceedings as a whole.
+This calls for consideration of the extent to which the legitimate interests of the defendant have been safeguarded.
+This is, I believe, a fair and accurate summary of a difficult area of Strasbourg jurisprudence.
+Article 6(3)(d) is concerned with the fairness of the trial procedure.
+It recognises that a fair procedure should entitle the defendant to have examined the witnesses against him and to obtain the attendance and examination of witnesses on his behalf.
+What the article does not deal with is the procedure that is appropriate where it is simply not possible to comply with article 6(3)(d); where, for instance, after making a statement, the witness for the prosecution or defence has died.
+Fairness does not require that in such circumstances the evidence of the witness should not be admitted at the trial.
+On the contrary it may well require that it should be admitted.
+The Strasbourg Court has recognised this.
+As the Court of Appeal in the present case pointed out in paragraph 37 of its judgment examples of the admission of statements in such circumstances include death: Ferrantelli and Santangelo v Italy (1996) 23 EHRR 288; illness: Trivedi v United Kingdom (1997) 89 A DR 136 and impossibility of tracing the witness: Artner v Austria (Application No 13161/87), 25 June 1992.
+Thus where a statement has been read of an absent witness, or evidence has been given anonymously, the Strasbourg Court first considers whether there was justification for this course.
+When considering justification the Strasbourg Court properly has regard to the human rights of witnesses and victims.
+In Doorson v The Netherlands (1996) 22 EHRR 330 the Court observed: It is true that article 6 does not explicitly require the interests of witnesses in general, and those of victims called upon to testify in particular, to be taken into consideration.
+However, their life, liberty or security of person may be at stake, as may interests coming generally within the ambit of article 8 of the Convention.
+Such interests of witnesses and victims are in principle protected by other, substantive provisions of the Convention, which imply that Contracting States should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled.
+Against this background, principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify.
+One situation where Strasbourg has recognised that there is justification for not calling a witness to give evidence at the trial, or for permitting the witness to give that evidence anonymously, is where the witness is so frightened of the personal consequences if he gives evidence under his own name that he is not prepared to do so.
+If the defendant is responsible for the fear, then fairness demands that he should not profit from its consequences.
+Even if he is not, the reality may be that the prosecution are simply not in a position to prevail on the witness to give evidence.
+In such circumstances, having due regard for the human rights of the witness or the victim, as well as those of the defendant, fairness may well justify reading the statement of the witness or permitting him to testify anonymously.
+Claims of justification on such grounds have to be rigorously examined see Doorson v The Netherlands (1996) 22 EHRR 330 at paragraph 71, Kok v The Netherlands (Application No 43149/98), Reports of Judgments and Decisions 2000 VI, p 597; Visser v The Netherlands (Application No 26668/95), 14 February 2002 at paragraph 47; Krasniki v Czech Republic (Application No 51277/99), 28 February 2006 at paragraphs 80 81; Luc v Italy (2001) 36 EHRR 807 at paragraph 40: As the Court has stated on a number of occasions, it may prove necessary in certain circumstances to refer to depositions made during the investigative stage (in particular, where a witness refuses to repeat his deposition in public owing to fears for his safety, a not infrequent occurrence in trials concerning Mafia type organisations).
+Where the court has found justification for the admission of a statement from a witness not called, or for a witness giving evidence anonymously, the Court has been concerned with whether the process as a whole has been such as to involve the danger of a miscarriage of justice.
+The exercise has been similar to that conducted by the English Court of Appeal when considering whether, notwithstanding the breach of a rule relating to admissibility, the conviction is safe.
+There is, of course, an overlap between considering whether procedure has been fair and whether a verdict is safe, and it is sometimes difficult to distinguish between the two questions.
+Doorson v The Netherlands is a particularly informative example of the approach of the Strasbourg Court to a situation where there was justification both for admitting the statement of a witness who was not called to give evidence and for hearing the evidence of two anonymous witnesses whose evidence was not given in the presence of the defendant.
+The applicant was convicted of drug trafficking.
+The justification for admitting the statement of the witness who was not called was that he had absconded and it was thus impossible to call him to give evidence.
+The justification for permitting the two witnesses to give evidence anonymously and without the defendant being present was that it was reasonable for them to fear reprisals from the applicant if he discovered that they had given evidence against him, albeit that there was no evidence that they had ever been threatened by the applicant.
+Both the opinion of the Commission and the judgment of the Court suggest that the primary concern of each when considering whether the admission of the evidence had rendered the trial unfair was whether the evidence was reliable.
+So far as the witness who had absconded was concerned, the Commission held that it could not be regarded as unfair if the courts took into account the statement that he had made to the police (paragraph 78).
+The Court held that it had been permissible for the court to have regard to the statement especially since it could consider that statement to be corroborated by other evidence before it (paragraph 80).
+So far as the anonymous witnesses were concerned, the Court of Appeal had ordered them to be examined by an investigating judge in the presence of the defendants counsel, though not of the defendant.
+She knew the identity of the witnesses.
+She reported that she had the impression that both witnesses knew whom they were talking about and that her impression had been that the witnesses themselves believed their statements to be true (paragraph 32).
+The Court concluded that: in the circumstances the counterbalancing procedure followed by the judicial authorities in obtaining the evidence of witnesses Y15 and Y16 must be considered sufficient to have enabled the defence to challenge the evidence of the anonymous witnesses and attempt to cast doubt on the reliability of their statements, which it did in open court by, amongst other things, drawing attention to the fact that both were drug addicts.
+Although, as I have shown, the Strasbourg Court has accepted that in exceptional cases failure to comply with the strict requirements of article 6(3)(d) will not invalidate the fairness of the trial, the Court has not acknowledged this in terms.
+The Court might have said, in terms, that paragraph (3)(d) has no application where it is impossible to call a witness at the trial, but it did not.
+The Court might have said, in terms, that in exceptional circumstances a failure to comply with paragraph (3)(d) will not render the trial unfair, but it did not.
+Rather the Court has used language that has tended to obscure the fact that it is, in reality and in special circumstances, countenancing a failure to comply with the requirements of paragraph (3)(d).
+I shall take Kostovski v The Netherlands (1989) 12 EHRR 434 as an example of the language used.
+The phraseology is almost standard form in cases dealing with article 6(3)(d).
+The recital of the relevant legal principles begins with this statement: It has to be recalled at the outset that the admissibility of evidence is primarily a matter for regulation by national law.
+Again, as a general rule it is for the national courts to assess the evidence before them.
+In the light of these principles the Court sees its task in the present case as being not to express a view as to whether the statements in question were correctly admitted and assessed but rather to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair.
+This being the basic issue, and also because the guarantees in article 6(3) are specific aspects of the right to a fair trial set forth in paragraph (1), the Court will consider the applicants complaints from the angle of paragraphs (3)(d) and (1) taken together.
+This passage indicates that the fairness of a trial has to be assessed on a case by case basis, viewing each trial as a whole, and that an inability on the part of a defendant to cross examine the maker of a statement that is admitted in evidence will not necessarily render the trial unfair.
+The Court in Kostovski went on to say this: In principle, all the evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument.
+This does not mean, however, that in order to be used as evidence statements of witnesses should always be made at a public hearing in court: to use as evidence such statements obtained at the pre trial stage is not in itself inconsistent with paragraphs (3)(d) and (1) of article 6, provided the rights of the defence have been respected.
+As a rule, these rights require that an accused should be given an adequate and proper opportunity to challenge and question a witness against him, either at the time the witness was making his statement or at some later stage of the proceedings.
+There are two points to make in respect of this passage.
+The first is that the phrases in principle and as a rule reflect the fact that the Strasbourg Court has recognised that the requirements of article 6(3)(d) are not absolute or inflexible.
+The second point is that the proposition that an accused should be given an adequate and proper opportunity to challenge and question a witness against him, either at the time the witness was making his statement or at some later stage of the proceedings (emphasis mine) reflects Strasbourg jurisprudence which appears to dilute the protection that article 6(3)(d) would otherwise supply.
+One of the objects of the right of a defendant to cross examine witnesses is to give the trial court the chance of observing their demeanour under questioning and thus forming its own impression of their reliability see Kostovski at paragraph 43.
+The aim is adversarial argument at a public hearing see Kostovski at paragraph 41.
+These objects will not be achieved by granting the defendant or his lawyers an opportunity to confront or question witnesses in the course of the inquisitorial investigation by the investigating judge.
+The words that I have emphasised, repeated again and again in the Strasbourg jurisprudence, appear to suggest that a right to challenge a witness at the investigatory stage of the criminal process will be enough to satisfy article 6(3)(d).
+This exemplifies the danger that repeated repetition of a principle may lead to its being applied automatically without consideration of whether, having regard to the particular facts of the case, its application is appropriate.
+The true position is, I suggest, that where possible the defendant should be entitled to examine witnesses at the trial but that, where this proves impossible, the fact that the defendant had a right to challenge the witness at the investigatory stage is a relevant factor when considering whether it is fair to rely on the witness deposition as evidence at the trial see, for instance, Luc v Italy (2001) 36 EHRR 807.
+The sole or decisive rule
+The sole or decisive rule entered the Strasbourg jurisprudence in Doorson v The Netherlands where, having found justification for admitting the statement of an absent witness and for the anonymity of two witnesses, the Court added: Finally, it should be recalled that, even when counterbalancing procedures are found to compensate sufficiently the handicaps under which the defence labours, a conviction should not be based either solely or to a decisive extent on anonymous statements.
+The seeds of the sole or decisive rule would seem to be found in a series of earlier cases, details of which are set out in Annexe 2 to this judgment.
+In most of these cases there had been a failure to comply with the requirements of article 6(3)(d) for which there was no justification.
+The Court none the less considered it relevant to consider the impact of the evidence in question on the applicants conviction when deciding whether this had rendered the trial unfair in violation of article 6(1).
+The inference was that if the evidence had not had a significant effect on the outcome of the trial, there would be no violation of article 6(1).
+The sole or decisive test propounded in Doorson went a significant step further.
+It stated that, even where there was justification for not calling a witness, basing a conviction solely or decisively on the evidence of that witness would be unfair.
+In 1997 the Committee of Ministers of the Council of Europe published Recommendation No R (97) 13 concerning Intimidation of Witnesses and the Rights of the Defence.
+This included measures to be taken in relation to organised crime.
+The measures dealt with different methods of protecting witnesses from the risk of reprisals, or accommodating their fear of such reprisals.
+These included admitting evidence of pre trial statements made before a judicial authority and preserving the anonymity of witnesses.
+In relation to anonymity, the Ministers recommended When anonymity has been granted the conviction shall not be based solely or to a decisive extent on the evidence of such persons.
+The recommendation would seem to have been derived from the Strasbourg jurisprudence, for the preamble to the Recommendation recites: Bearing in mind the provisions of the European Convention on Human Rights and the case law of its organs, which recognise the rights of the defence to examine the witness and to challenge his/her testimony but do not provide for a face to face confrontation between the witness and the alleged offender;
+In his review of the Strasbourg jurisprudence in Grant v The Queen Lord Bingham did not address the question of whether the admission of hearsay evidence was subject to the sole or decisive test.
+That question was considered by the Court of Appeal in R v Sellick [2005] EWCA Crim 651; [2005] 1 WLR 3257.
+In that case the trial judge had permitted the statements of witnesses to be read pursuant to sections 23 and 26 of the 1988 Act on the ground that they had not given evidence through fear.
+Waller LJ reviewed the Strasbourg authorities and summarised the position as follows: 50.
+What appears from the above authorities are the following propositions. (i) The admissibility of evidence is primarily for the national law. (ii) Evidence must normally be produced at a public hearing and as a general rule article 6(1) and (3)(d) of the Convention require a defendant to be given a proper and adequate opportunity to challenge and question witnesses. (iii) It is not necessarily incompatible with article 6(1) and (3)(d) of the Convention for depositions to be read and that can be so even if there has been no opportunity to question the witness at any stage of the proceedings.
+Article 6(3)(d) is simply an illustration of matters to be taken into account in considering whether a fair trial has been held.
+The reasons for the court holding it necessary that statements should be read and the procedures to counterbalance any handicap to the defence will all be relevant to the issue, whether, where statements have been read, the trial was fair. (iv) The quality of the evidence and its inherent reliability, plus the degree of caution exercised in relation to reliance on it, will also be relevant to the question whether the trial was fair. 51.
+The question is whether there is a fifth proposition to the effect that where the circumstances would otherwise justify the reading of the statement where the defendant has had no opportunity to question the witness at any stage of the trial process, the statement must not be allowed to be read if it is the sole or decisive evidence against the defendant.
+Certainly at first sight para 40 of Luc v Italy 36 EHRR 807 seems to suggest that in whatever circumstances and whatever counterbalancing factors are present if statements are read then there will be a breach of article 6 of the Convention, if the statements are the sole or decisive evidence.
+Furthermore there is some support for that position in the previous authorities.
+But neither Luc v Italy nor any of the other authorities were concerned with a case where a witness, whose identity was well known to a defendant, was being kept away by fear, although we must accept that the reference to Mafia type organisations and the trials thereof in para 40 of Luc v Italy shows that the court had extreme circumstances in mind. 52.
+The question we have posed to ourselves is as follows.
+If the European court were faced with the case of an identified witness, well known to a defendant, who was the sole witness of a murder, where the national court could be sure that that witness had been kept away by the defendant, or by persons acting for him, is it conceivable that it would hold that there were no counterbalancing measures the court could take which would allow that statement to be read.
+If care had been taken to see that the quality of the evidence was compelling, if firm steps were taken to draw the jurys attention to aspects of that witnesss credibility and if a clear direction was given to the jury to exercise caution, we cannot think that the European court would nevertheless hold that a defendants article 6 rights had been infringed.
+In such a case, as it seems to us, it is the defendant who has denied himself the opportunity of examining the witnesses, so that he could not complain of an infringement of article 6(3)(d), and the precautions would ensure compliance and fairness in compliance with article 6(1).
+We for our part see no difficulty in such a clear case. 53.
+More difficulty arises in cases where it is not quite so clear cut, but the court believes, to a high degree of probability, that identified witnesses are being intimidated for and on behalf of the defence, and where the court is sure to the criminal standard of proof that witnesses cannot be traced and brought before the court (Butterfield Js state of mind on Lee in the instant case).
+In our view, having regard to the rights of victims, their families, the safety of the public in general, it still cannot be right for there to be some absolute rule that, where compelling evidence is the sole or decisive evidence, an admission in evidence of a statement must then automatically lead to a defendants article 6 rights being infringed.
+That would lead to a situation in which the more successful the intimidation of the witnesses, the stronger the argument becomes that the statements cannot be read.
+If the decisive witnesses can be got at the case must collapse.
+The more subtle and less easily established intimidation provides defendants with the opportunity of excluding the most material evidence against them.
+Such an absolute rule cannot have been intended by the European court in Strasbourg.
+In R v Davis Lord Mance analysed the Strasbourg jurisprudence in relation to anonymous witnesses and summarised his conclusions as follows: 89.
+In his submissions for the Crown Mr Perry suggested that any requirement that anonymous evidence should not be the sole or decisive basis for conviction derived from the authorities on pretrial statements by (identified) witnesses who were not called for cross examination at trial.
+That submission derives possible support from the citation in Kok, Visser and Krasniki of authorities which deal with that subject matter, rather than with anonymous witnesses.
+But it does not mean that a similar principle is inappropriate in relation to anonymous witnesses who are available for such cross examination as is possible at trial.
+Whatever its origin, the requirement has been deployed without drawing this distinction, which is probably less real in those civil law countries with procedures involving use of an investigating magistrate than it is in the United Kingdom.
+Further, in Krasniki the requirement was applied to one anonymous witness who was called at trial.
+It is considerably less certain, for the reasons I have mentioned in paras 84 86 above, that there is an absolute requirement that anonymous testimony should not be the sole or decisive evidence, or whether the extent to which such testimony is decisive may be no more than a very important factor to balance in the scales.
+I doubt whether the Strasbourg court has said the last word about this.
+The Court in Doorson v The Netherlands gave no explanation for the sole or decisive rule.
+It was not a rule that was relevant on the facts of that case, so an English jurist might suggest that it was mere obiter dicta which need not be afforded much weight.
+But the rule was propounded repeatedly in subsequent cases, and it is necessary to consider these in order to attempt to deduce the principle underlying the rule.
+I have set out a brief analysis of a number of the decisions in an attempt to identify the governing principle.
+This forms Annexe 3 to this judgment.
+It is clear from these cases that a failure to comply with article 6(3)(d), even if there is no justification for this, does not automatically result in a violation of article 6(1).
+It is necessary to consider whether the failure has affected the result.
+If it has not, no question of a violation of article 6(1) arises see X v United Kingdom (1992) 15 EHRR CD 113; Craxi v Italy (Application No 34896197), 5 December 2002.
+Where there has been a failure to comply with article 6(3)(d) for which there is no justification, the Court has found a violation of article 6(1) where the evidence may have contributed to the applicants conviction Ldi v Switzerland (1992) 15 EHRR 173; Taxquet v Belgium (Application No 926105), 13 January 2009.
+In the majority of cases there has been a failure to comply with article 6(3)(d) which has not been justified and the evidence in question has been the sole or decisive basis of the applicants conviction.
+A violation of article 6(1) has naturally been found in such cases.
+Where there is justification for a failure to comply with the requirements of article 6(3)(d) because, for instance, it is impossible in fact or law to procure the presence of the witness for cross examination, the Court has been concerned with the reliability of the evidence in question.
+In two cases which preceded Doorson, no violation of article 6(1) was found where the evidence in question was the principal evidence, but where it was supported by other evidence: Asch v Austria (Application No 12398/86), 29 April 1991 and Artner v Austria (Application No 13161/87), 25 June 1992.
+Ferrantelli and Santangelo v Italy 23 EHRR 288 was a case decided soon after Doorson.
+The sole or decisive test was not mentioned.
+The applicants were convicted of being party to the murder of two police officers committed by V. The principal evidence against them consisted of statements made by V. There was no confrontation between V and the applicants.
+V committed suicide before the trial.
+In these circumstances there was justification for reading his statements.
+The Court found that the applicants had had a fair trial and that there had been no violation of articles 6(1) and article 6(3)(d).
+In so finding it had regard to the fact that the trial court had conducted detailed analysis of the statements and found them to be corroborated.
+In Doorson itself, which was primarily an anonymity case, the Court found that it had been acceptable to have regard to a statement of a witness whose attendance could not be procured especially since it could consider that statement to be corroborated by other evidence before it.
+No explanation was given in Doorson in respect of the principle underlying the sole or decisive test first propounded by the Court in that case, and, so far as I am aware, the Strasbourg Court has not subsequently explained why a conviction based in part on the evidence of a witness who was not called, or who was anonymous, need not offend article 6(1) and (3)(d), while, on the contrary, if the evidence is sole or decisive the article will be violated.
+I have concluded, however, that the Strasbourg Court has drawn the distinction on the premise that a conviction based solely or decisively upon the evidence of a witness whose identity has not been disclosed, or who has not been subjected to cross examination, or both, will not be safe.
+I have reached this conclusion for a number of reasons.
+First because there is nothing intrinsically objectionable or unfair in having regard to the statement of a witness where it is simply not possible to call that witness to give the evidence in question.
+Secondly because of the general emphasis that the Strasbourg Court understandably places on the reliability of evidence.
+Thirdly because the approach evidenced by the passage quoted from Kok in Annexe 3 seems to treat reliability as being the relevant factor and finally because I have not been able to identify any convincing alternative rationale for the sole or decisive test.
+Practicality
+One of the reasons why the Court of Appeal was not prepared to accept that the
+sole or decisive rule applied to English criminal law was the fact that the application of that rule would give rise to severe practical difficulties under our system.
+Two questions arise in relation to practicability. (1) How easy is it for the trial court itself to apply the sole or decisive test? (2) How easy is it for an appeal court, or for the Strasbourg Court, to determine whether the test has been properly applied? The Strasbourg Court has repeatedly emphasised that it is not its task to rule on admissibility but to consider whether the trial as a whole has been fair.
+When considering articles 6(1) and 6(3)(d) Strasbourg is concerned not with whether a statement ought to have been admitted in evidence by the trial court but with the use the trial court has made of the evidence.
+The sole or decisive test permits a court to take the evidence into account but not to base a conviction solely or decisively upon it.
+In a dissenting opinion in Van Mechelen v The Netherlands (1997) 25 EHRR 647
+Judge van Dijk expressed the view that the sole or decisive test is difficult to apply, because if the testimony of anonymous witnesses is used by the court as part of the evidence, that will always be because the court considers it a decisive part of that evidence.
+This comment raises the question of what is meant by decisive.
+Under English procedure no evidence should be admitted unless it is potentially probative.
+In theory any item of probative evidence may make all the difference between conviction and acquittal.
+It may be the vital piece of evidence which tilts the scales enough to satisfy the tribunal beyond reasonable doubt that the defendant is guilty.
+Is such a piece of evidence to be treated as decisive? In Al Khawaja at paragraph 39 the Court relied, as indicating that a statement was decisive, on the statement of the Court of Appeal in Tahery that it was both important and probative of a major issue in the case.
+Had it not been admitted the prospect of a conviction would have receded and that of an acquittal advanced.
+Whatever be the precise definition of decisive, the duty not to treat a particular piece of evidence as decisive is hard enough for a professional judge to discharge.
+In theory he can direct himself that he must not convict if the relevant statement is decisive, and state in a reasoned judgment that he has complied with that direction.
+In practice such a course will often not be easy.
+As for the Court of Appeal or the Strasbourg Court, it will often be impossible to decide whether a particular statement was the sole or decisive basis of a conviction.
+In the case of a jury trial, a direction to the jury that they can have regard to a witness statement as supporting evidence but not as decisive evidence would involve them in mental gymnastics that few would be equipped to perform.
+If the sole or decisive test is to be applied in the context of a jury trial, the only practical way to apply it will be a rule of admissibility.
+The judge will have to rule inadmissible any witness statement capable of proving decisive.
+This will be no easy task see the judgment of the Court of Appeal at paragraphs 68 to 70.
+If decisive means capable of making the difference between a finding of guilt and innocence, then all hearsay evidence will have to be excluded.
+In Trechsels lengthy analysis of this area of the law in Human Rights in Criminal Proceedings the author advances precisely this proposition at p 298.
+Discussion
+The sole or decisive test produces a paradox.
+It permits the court to have regard to evidence if the support that it gives to the prosecution case is peripheral, but not where it is decisive.
+The more cogent the evidence the less it can be relied upon.
+There will be many cases where the statement of a witness who cannot be called to testify will not be safe or satisfactory as the basis for a conviction.
+There will, however, be some cases where the evidence in question is demonstrably reliable.
+The Court of Appeal has given a number of examples.
+I will just give one, which is a variant of one of theirs.
+A visitor to London witnesses a hit and run road accident in which a cyclist is killed.
+He memorises the number of the car, and makes a statement to the police in which he includes not merely the number, but the make and colour of the car and the fact that the driver was a man with a beard.
+He then returns to his own country, where he is himself killed in a road accident.
+The police find that the car with the registration number that he provided is the make and colour that he reported and that it is owned by a man with a beard.
+The owner declines to answer questions as to his whereabouts at the time of the accident.
+It seems hard to justify a rule that would preclude the conviction of the owner of the car on the basis of the statement of the deceased witness, yet that is the effect of the sole or decisive test.
+As I have suggested earlier, the justification for the sole or decisive test would appear to be that the risk of an unsafe conviction based solely or decisively on anonymous or hearsay evidence is so great that such a conviction can never be permitted.
+Parliament has concluded that there are alternative ways of protecting against that risk that are less draconian, as set out in the 1988 and 2003 Acts (and now, with regard to anonymous witnesses, the 2008 Act).
+When the Strasbourg decisions are analysed it is apparent that these alternative safeguards would have precluded convictions in most of the cases where a violation of article 6(1) and (3)(d) was found.
+In particular the legislation does not permit the admission of the statement of a witness who is neither present nor identified.
+Where the witness is unavailable but identified, or present but anonymous, the respective Acts provide the safeguards to which I have referred earlier against the risk that the use of the witness evidence will render the verdict unsafe and the trial unfair.
+Lord Judge has subjected many of the Strasbourg decisions to which I have referred, together with a number of others, to a detailed analysis.
+He has, for the most part chosen cases in which the Strasbourg Court held that article 6(1) taken together with article 6(3)(d) had been violated.
+Under our domestic principles of admissibility in almost all of these cases the relevant evidence would have been ruled inadmissible and the defendant would not have been convicted.
+The cases suggest that in general our rules of admissibility provide the defendant with at least equal protection to that provided under the continental system.
+Lord Judges analysis is annexed to this judgment as Annexe 4.
+Before Al Khawaja, while the Strasbourg Court had repeatedly recited the sole or decisive test, there had, as the Court of Appeal observed, been no case where that test had been applied so as to produce a finding of a violation of article 6(1) and (3)(d) in a case where there had been justification for not calling a witness and where the evidence was demonstrably reliable.
+Nor had the sole or decisive rule ever been applied or cited in an application in relation to the criminal process in this jurisdiction.
+Thus no consideration had been given as to whether it was necessary or appropriate to apply that rule having regard to the safeguards inherent in our system.
+It is time to turn to consider Al Khawaja.
+Al Khawaja
+In Al Khawaja 49 EHRR 1 the Court heard two applications together.
+Mr Al Khawaja had been convicted on two counts of indecent assault on female patients.
+The first had made a statement to the police providing details of the assault, but subsequently committed suicide for reasons unconnected to the assault.
+Her statement was admitted under the 1988 Act.
+Mr Tahery was convicted of wounding with intent.
+An Iranian had been stabbed in the back in a brawl.
+Another Iranian made a statement to the police saying that he had seen Mr Tahery inflict the wound.
+He subsequently refused to give evidence because of fear.
+The judge gave permission for his statement to be read pursuant to section 116(2)(e) of the 2003 Act.
+Appeals by each applicant were dismissed by the Court of Appeal.
+Each applicant complained to the Strasbourg Court that his rights under article 6(3)(d) had been violated.
+out general principles applicable to both cases.
+This section began: In the section of its judgment dealing with the merits the Court began by setting Article 6(3)(d) is an aspect of the right to fair trial guaranteed by article 6(1), which, in principle, requires that all evidence must be produced in the presence of the accused in a public hearing with a view to adversarial argument (Krasniki v Czech Republic (Application No 51277/99), 28 February 2006, para 75).
+As with the other elements of article 6(3), it is one of the minimum rights which must be accorded to anyone who is charged with a criminal offence.
+As minimum rights, the provisions of article 6(3) constitute express guarantees and cannot be read, as it was by the Court of Appeal in Sellick (see para [25] above), as illustrations of matters to be taken into account when considering whether a fair trial has been held (see Barber v Spain (1987) 9 EHRR CD101, paras 67 and 68; Kostovski v The Netherlands, (1989) 12 EHRR 434, para 39).
+I find it impossible to reconcile this paragraph with statements of principle that the Strasbourg Court has regularly made in respect of the interrelationship between articles 6(1) and 6(3)(d), as quoted from Kostovski at paragraph 75 (above).
+These statements indicate that the fairness of a trial has to be assessed on a case by case basis, viewing each trial as a whole, and that an inability on the part of a defendant to examine the maker of a statement that is admitted in evidence will not necessarily render the trial unfair.
+The statement of principle in the opening passage in Kostovski is notably absent from the judgment in Al Khawaja.
+That which replaces it is at odds with the approach in the individual Strasbourg cases to which I have referred.
+The Court went on to add: Equally, even where those minimum rights have been respected, the general right to a fair trial guaranteed by article 6(1) requires that the Court ascertain whether the proceedings as a whole were fair.
+This proposition is unexceptionable.
+What is puzzling is that the Court should cite Unterpertinger v Austria in support of it, for that was a case where the Court found that both articles 6(1) and 6(3)(d) had not been satisfied.
+said: I now come to the crucial passages in Al Khawajia.
+At paragraph 36 the Court Whatever the reason for the defendants inability to examine a witness, whether absence, anonymity or both, the starting point for the Courts assessment of whether there is a breach of article 6(1) and (3)(d) is set out in Luc at para 40: If the defendant has been given an adequate and proper opportunity to challenge the depositions either when made or at a later stage, their admission in evidence will not in itself contravene article 6(1) and (3(d).
+The corollary of that, however, is that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by article 6 [references omitted].
+The first point to be made about this citation from Luc is that neither of the propositions that it contains is axiomatic.
+For reasons that I have already given, an opportunity to challenge a deposition when made, whether the opportunity is taken or not, will not necessarily render it fair at the trial simply to read the deposition if the maker can be called to give evidence.
+The second proposition incorporates the sole or decisive test.
+That test is not the corollary of the first proposition.
+It is not to be found in article 6(3)(d).
+It has, as I have shown, been developed in the jurisprudence of the Strasbourg Court.
+In both Al Khawaja and Tahery the statements admitted in evidence were central to the prosecution case but were, in each case, supported by other evidence.
+The Court of Appeal had held, in each case, that there was no reason to doubt the safety of the conviction.
+In Al Khawaja, the Court of Appeal, citing Sellick, had held that the Strasbourg case law did not require the conclusion that, in the circumstances of that case, the trial would be unfair.
+The Strasbourg Courts response appears in paragraph 37 of its judgment: The Court notes that in the present cases the Government relying on the Court of Appeals judgment in Sellick (see paragraph 25 above), argue that this Courts statement in Luc and in other similar cases is not to be read as laying down an absolute rule, prohibiting the use of statements if they are the sole or decisive evidence, whatever counterbalancing factors might be present.
+However, the Court observes that the Court of Appeal in Sellick was concerned with identified witnesses and the trial judge allowed their statements to be read to the jury because he was satisfied that they were being kept from giving evidence through fear induced by the defendants.
+That is not the case in either of the present applications and, in the absence of such special circumstances, the Court doubts whether any counterbalancing factors would be sufficient to justify the introduction in evidence of an untested statement which was the sole or decisive basis for the conviction of an applicant.
+While it is true that the Court has often examined whether the procedures followed in the domestic courts were such as to counterbalance the difficulties caused to the defence, this has been principally in cases of anonymous witnesses whose evidence has not been regarded as decisive and who have been subjected to an examination in some form or other.
+There are two points to be made about this passage.
+The first is that the Court appears to have accepted that the sole or decisive rule does not apply so as to preclude the reliance on the statement of a witness who refuses to testify because of fear induced by the defendant.
+The second is that the Court did not completely close the door to the possibility of counterbalancing factors being sufficient to justify the introduction of a statement as sole or decisive evidence in other circumstances.
+The Court made it quite plain, however, that compliance with the statutory regime under which the statements in the two appeals had been admitted carried limited weight paragraph 40.
+The Court must surely have been correct to recognise that the sole or decisive rule does not apply where a defendant has induced such fear in a witness that the witness refuses to testify.
+A defendant can never be heard to complain of the absence of a witness if he has been responsible for that absence.
+It is, however, notoriously difficult for a court to be certain that a defendant has threatened a witness, for if the threat is effective the witness is likely to be too frightened to testify to it.
+The Strasbourg Court has recognised that anonymity can be justified where a witness is too frightened to be identified, even where the defendant has not himself induced the fear Doorson, Kok and Visser.
+There are strong reasons of policy why the evidence of such a witness should be received, subject to adequate safeguards, and this is recognised by section 116 of the 2003 Act.
+The sole or decisive rule was first propounded in Doorson as an obiter observation, without explanation or qualification.
+It has since frequently been repeated, usually in circumstances where there has been justification for finding breaches of article 6(1) and (3)(d) without reliance on the test.
+If applied rigorously it will in some cases result in the acquittal, or failure to prosecute, defendants where there is cogent evidence of their guilt.
+This will be to the detriment of their victims and will result in defendants being left free to add to the number of those victims.
+The Court of Appeal in this case, comprising five senior judges with great experience of the criminal jurisdiction, referred to the manner in which the 2003 Act is working in practice and concluded that provided its provisions are observed there will be no breach of article 6 and, in particular, article 6(3)(d), if a conviction is based solely or decisively on hearsay evidence paragraph 81.
+The court thus differed from the doubt expressed in Al Khawaja as to whether there could be any counterbalancing factors sufficient to justify the introduction of an untested statement which was the sole or decisive basis for a conviction.
+I concur in these conclusions reached by the Court of Appeal and the reasons for those conclusions so clearly and compellingly expressed.
+The jurisprudence of the Strasbourg Court in relation to article 6(3)(d) has developed largely in cases relating to civil law rather than common law jurisdictions and this is particularly true of the sole or decisive rule.
+In the course of the hearing in Al Khawaja, Sir Nicolas Bratza observed that both parties had accepted the sole or decisive test which appears in Luc and other cases as an accurate summary of the Courts case law.
+He asked whether there was any authority of the Court which gave any scope for counterbalancing factors in a sole or decisive case.
+Mr Perry for the Government conceded that he was not aware of any direct authority on the point.
+The Court then applied the sole or decisive rule in reliance on the pre existing case law.
+But as I have shown that case law appears to have developed without full consideration of the safeguards against an unfair trial that exist under the common law procedure.
+Nor, I suspect, can the Strasbourg Court have given detailed consideration to the English law of admissibility of evidence, and the changes made to that law, after consideration by the Law Commission, intended to ensure that English law complies with the requirements of article 6(1) and (3)(d).
+In these circumstances I have decided that it would not be right for this court to hold that the sole or decisive test should have been applied rather than the provisions of the 2003 Act, interpreted in accordance with their natural meaning.
+I believe that those provisions strike the right balance between the imperative that a trial must be fair and the interests of victims in particular and society in general that a criminal should not be immune from conviction where a witness, who has given critical evidence in a statement that can be shown to be reliable, dies or cannot be called to give evidence for some other reason.
+In so concluding I have taken careful account of the Strasbourg jurisprudence.
+I hope that in due course the Strasbourg Court may also take account of the reasons that have led me not to apply the sole or decisive test in this case.
+The individual appeals
+Although the principal ground of appeal was that the sole or decisive rule had not been applied, counsel for the appellants in each appeal also argued that, quite apart from this rule, the relevant statements should not have been admitted.
+In the case of Horncastle and Blackmore the argument was that the deceased victims statement was inherently unreliable.
+In the case of Marquis and Graham it was argued that the fear that had led to Miss Miles running away because she was too frightened to give evidence had been induced, not by the defendants, but by alarmist warnings given by the police and that, in these circumstances, it was unjust to put her statement in evidence.
+These points received careful consideration by the Court of Appeal.
+I have found no basis for differing from the courts conclusion that they were without merit.
+Accordingly I propose simply to rely upon the reasoning of the Court of Appeal in dismissing these grounds of appeal.
+For the reasons that I have given I would dismiss these appeals.
+ANNEXE 1 (Prepared by Lord Mance see paragraph 41). 1.
+In Canada, the Supreme Court addressed the question of the admission of hearsay evidence on three occasions, in R v Khan [1990] 2 SCR 531; R v Smith [1992] 2 SCR 915 and R v Rockey [1996] 3 SCR 829.
+It noted that the purpose and reason of the Hearsay rule is the key to the exceptions to it, drawing in this connection on the well known American text, Wigmore on Evidence (2nd ed. 1923).
+Wigmore went on to point out that the theory of the hearsay rule was that the many possible sources of inaccuracy and untrustworthiness which may lie underneath the bare untested assertion of a witness can best be brought to light and exposed, if they exist, by the test of cross examination, but that, in circumstances in which a statement is free from this risk or in which cross examination is impossible, it may be possible under certain conditions to contemplate its use without cross examination.
+The Supreme Court of Canada in R v Smith, at p 930, referred to the approach 2. along these lines first adopted in R v Khan as the triumph of a principled analysis over a set of ossified judicially created categories.
+It held that, in addition to the basic requirement of relevance, hearsay evidence might be admitted if there was sufficient necessity and its reliability could be sufficiently verified by the judge before it was put before the jury.
+In R v Khan evidence was thus admitted of an infant complainants description to her mother shortly after the event of a sexual assault upon her, in circumstances where the infant was not permitted to testify at trial.
+In R v Smith these tests were satisfied in relation to the contents of two of the 3. critical three telephone calls made by the deceased to her mother shortly before death.
+However, in relation to the third call, although there was no problem about satisfying the test of necessity in view of her death, a careful review by the Court of the circumstances surrounding the call gave rise to apprehensions about its reliability, and a possibility that what had been said might have been mistaken or intended to deceive the mother.
+The contents of this call could not therefore safely be admitted in the absence of cross examination.
+The conviction was set aside and a fresh trial ordered.
+R v Rockey was another case, like R v Khan, where the accused was charged with sexual assault on an infant (aged two and a half), who had made a number of statements about the incident.
+The Court was, after examination of the circumstances, satisfied that the requirements of both necessity and reliability were met.
+It found, with regard to necessity, that the infant though by now aged five, could not have given evidence in any meaningful sense, and would anyway have been traumatised by doing so.
+Reliability was not an issue on the appeal.
+If (which the Court did not decide) there was any error in the judges directions to the jury, it was immaterial.
+It is right to add that, in this case (in contrast to R v Khan and R v Smith), there was also strong surrounding evidence inculpating the accused. 4.
+In Australia in the case of Bannon v The Queen (1995) 185 CLR 1, the High Court of Australia noted the Canadian decisions.
+Brennan CJ at p 12 expressed the view (obiter) that the approach they took should not be adopted in Australia.
+The other judges, Deane J at pp 12 13, Dawson, Toohey and Gummow JJ at pp 24 25 and 28 and McHugh J at pp 40 41 said that it was unnecessary to decide whether it should be adopted, although McHugh J also went further and said that Adoption of the Canadian principle would undoubtedly have beneficial effects on the law of evidence.
+The case was actually decided on the basis that the evidence in question could not on any view be regarded as reliable and was rightly excluded from being put before the jury. 5.
+As McHugh J also noted, the federal Australian Parliament had enacted the Evidence Act 1995, and New South Wales had adopted comparable legislation.
+The federal Evidence Act 1995 contains a careful set of provisions regulating the admission of hearsay evidence.
+The starting point under s.59(1) is that hearsay evidence is generally excluded: 59(1).
+Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. (2) Such a fact is in this Part referred to as an asserted fact.
+There follow a number of specific exceptions, including: 65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation: (a) was made under a duty to make that representation or to make representations of that kind; or (b) was made when or shortly after the asserted fact occurred and in circumstances that made it unlikely that the representation is a fabrication; or (c) was made in circumstances that make it highly probably that the representation is reliable; or (d) was: (i) against the interests of the person who made it at the time it was made; and (ii) made in circumstances that make it likely that the representation is reliable. 66 Exception: criminal proceedings if maker available (1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact. (2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by: (a) that person; or (b) a person who saw, heard or otherwise perceived the representation being made; if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.
+The scheme of the Australian statute is both nuanced and circumscribed, with a view to ensuring the overall fairness of the proceedings.
+The admissibility of hearsay evidence has also been addressed in New Zealand.
+In 6. 1980 the legislature enacted the Evidence Amendment Act (No.2) 1980.
+S.3 enabled the admission of out of court statements made by a maker with personal knowledge of the contents who is unavailable to give evidence, provided that the statement was not made in contemplation of criminal proceedings (and would not otherwise be inadmissible therein).
+S.18 gave the trial judge a discretion to exclude any such statement from the jury, and s.19 enabled an appellate court to exercise an independent discretion on any appeal to it on the issue of admissibility.
+The operation of these statutory provisions was considered by the Court of Appeal in R v Hovell [1987] 1 NZLR 610.
+In that case, an 82 year old woman gave to a detective shortly after the event a detailed written account of indecencies perpetrated on her by a disguised intruder whom she was unable to describe in any detail.
+There was medical and scientific evidence corroborating recent sexual activity.
+The next year, before the defendants arrest, she died.
+Her statement was admitted in evidence.
+On appeal, it was submitted that it should have been excluded under s.18, in that it would be contrary to the interests of justice not to exclude a statement dealing with facts of such central importance to the case (p.612).
+The Court of Appeal dismissed the appeal, holding that there was no basis for limiting the admission of such statements to less serious cases or to peripheral evidence, that the Act had its own safeguards for an accused, that it could not seriously be suggested that the complainants account was a fabrication, or that a woman of that age in those circumstances would complain of rape and the other sexual indignities if she had in fact consented, that the trial judge had rightly concluded that the identity of the assailant was the only issue for the jury and that the trial would be fought around the alibi claimed by the accused.
+The appeal was thus dismissed. 7.
+R v Baker [1989] 1 NZLR 738 concerned the common law principle whereby evidence of out of court statements may be admitted to show the makers state of mind, where this is a relevant issue.
+The defendant was accused of having raped and then shot his estranged wife before attempting to commit suicide.
+His explanation was that she had invited him around to shoot stray cats, and that, after inviting him to consensual sex, she had then taken his gun and shot first him, then herself.
+To rebut this account, the prosecution wished to adduce evidence from several witnesses of statements made by the deceased in the previous month and as late as the afternoon before her death as to her extreme fear of the accused which made it implausible to suggest that she would have invited him round to shoot stray cats or invited him to have sex.
+The trial judge refused to admit the statements, and the prosecution appealed.
+Giving the main judgment in the Court of Appeal allowing the appeal, Cooke P said (at p.741) that At least in a case such as the present it may be more helpful to go straight to basics and ask whether in the particular circumstances it is reasonably safe and of sufficient relevance to admit the evidence notwithstanding the dangers against which the hearsay rule guards. 8.
+R v Baker and the later case of R v Bain [1996] 1 NZLR 129 were considered in R v Manase [2001] 2 NZLR 197, as were also the Canadian and Australian cases to which I have already referred.
+This was another case of an infant (aged three and a half) who was the alleged victim of sexual violation by rape and otherwise.
+She had made statements to her mother and a receptionist, which she could not now remember having made, as well as making certain drawings in the receptionists presence.
+The trial judge had admitted evidence from the mother and receptionist about these statements and drawings.
+The Court of Appeal, reviewing the Canadian authorities, concluded that they had in practice diluted too far the concept of necessity (p.202).
+It noted certain recognised categories of exception to the hearsay rule, such as dying declarations and statements made as part of the res gestae.
+In other cases, the Court said, it was necessary to develop criteria for identifying when the rule might be displaced.
+I note, in parenthesis, that this is also the approach adopted by the federal Australian Evidence Act 1995 (above).
+The criteria which the Court developed involved three distinct requirements: 9. under the three distinct headings of relevance (although, as the Court noted, this is an affirmation and a reminder of the overriding criterion for the admissibility of all and any evidence), inability (which the Court indicated should be approached strictly) and reliability.
+In relation to this last criterion, the Court said: 30.
+The hearsay evidence must have sufficient apparent reliability, either inherent or circumstantial, or both, to justify its admission in spite of the dangers against which the hearsay rule is designed to guard.
+We use the expression apparent reliability to signify that the judge is the gatekeeper and decides whether to admit the evidence or not.
+If the evidence is admitted, the jury or judge, as trier of fact, must decide how reliable the evidence is and therefore what weight should be placed on it.
+If a sufficient threshold level of apparent reliability is not reached, the hearsay evidence should not be admitted.
+The inability of a primary witness to give evidence is not good reason to admit unreliable hearsay evidence. 31.
+As a final check, as with all evidence admitted before a jury, the Court must consider whether hearsay evidence which otherwise might qualify for admission should nevertheless be excluded because its probative value is outweighed by its illegitimate prejudicial effect.
+Reviewing the facts of R v Manase, the Court of Appeal concluded that there was a lack of sufficient apparent reliability in the primary utterances and drawings to qualify them for admission as hearsay.
+The appeal was therefore allowed.
+ANNEXE 2 (See paragraph 77) 1.
+In Unterpertinger v Austria (1986) 13 EHRR 175 at paragraph 33 the Court held that there had been a breach of article 6(1), taken together with the principles inherent in paragraph (3)(d) where the conviction was based mainly on statements of two witnesses that had been read.
+The witnesses had exercised a legal right, as members of the applicants family, to refuse to testify against him. 2.
+In Bricmont v Belgium (1989) 12 EHRR 217 at paragraph 82 the Court held that it was necessary to determine to what extent convictions had been based on accusations made by a witness whom the applicant had been unable to cross examine, where the Court had not found justification for this. 3.
+In Kostovski v The Netherlands (1989) 12 EHRR 434 in finding a violation of article 6 the Court remarked at paragraph 44 that the Government accepted that the applicants conviction was based to a decisive extent on the anonymous statements.
+The Court did not find justification for the procedures adopted, albeit that it recognised that the growth in organised crime doubtless demands the introduction of appropriate measures paragraph 44. 4.
+In Windisch v Austria (1990) 13 EHRR 281 the Court held that there had been a violation of paragraph (3)(d) taken together with paragraph (1) of article 6 where the court had relied to a large extent on identification evidence in the form of statements to the police of two anonymous witnesses.
+They had been promised anonymity by the police because of fear of reprisals. 5.
+In Delta v France (1990 16 EHRR 574 at paragraph 37 the Court found that there had been a breach of paragraph (3)(d) taken together with paragraph (1) of article 6 where statements of two witnesses had been taken into accountdecisivelyas the file contained no other evidence.
+There was no justification for the failure to procure the attendance of the witnesses. 6.
+In X v United Kingdom (1992) 15 EHRR CD 113 the Commission found that a complaint under article 6(1) and (3)(d) was manifestly ill founded where it related to evidence given by anonymous witnesses where far from being the only item of evidence on which the trial court based its decision to convict, the evidence in question did not implicate the applicant at all.
+The identity of the witnesses had been concealed because of fear of reprisals.
+In Ldi v Switzerland (1992) 15 EHRR 173 the Court found a violation of 7. paragraph (3)(d) in conjunction with paragraph (1) of article 6.
+The applicant had been convicted of drug trafficking.
+The evidence admitted at the trial had included reports made by an anonymous undercover police agent.
+While the Court found that there was justification for anonymity it ruled that this need not have precluded a procedure that permitted the witness to be questioned.
+The Swiss Government had argued that there had been no breach of article 6(1) and (3)(d) because the conviction had not been based to a decisive extent on the agents evidence.
+The Court observed at paragraph 47 that, while the Swiss courts did not reach their decisions solely on the basis of the agents statements, these played a part in establishing the facts which led to the conviction. 8.
+In Sadi v France (1993) 17 EHRR 251 the Court found that there had been a violation of article 6(1) and (3)(d).
+The applicant was convicted of drug dealing on the sole evidence of statements made to the police by three of his customers, who were identified.
+The Court did not find that there was any justification for failing to call them.
+ANNEXE 3 (See paragraph 80) 1.
+In Van Mechelen v The Netherlands (1997) 25 EHRR 647 the applicants had been convicted of attempted manslaughter and murder, where the only evidence of positive identification was supplied by anonymous police officers whose evidence was not taken in the presence of the applicants or their counsel.
+The Court did not find that the procedure adopted was justified but, having cited the sole or decisive test as set out in Doorson, added at paragraph 63 that the conviction of the defendants was based to a decisive extent on the evidence of the police officers. 2.
+In Craxi v Italy (Application No 34896/97), 5 December 2002 the applicant was convicted solely on the basis of statements of co defendants who exercised their rights not to give evidence.
+The Court held that there had been a violation of article 6(1) and (3)(d).
+Statements of one witness were read on the ground that he was untraceable.
+The Court held that these statements had not contributed to the applicants conviction, so there was no need to consider his complaint that their admission had violated article 6(3)(d). 3.
+In Kok v The Netherlands (Application No 43149/98), Reports of Judgments and Decisions 2000 VI, p 597 the Court found the applicants complaint of a violation of article 6(1) and (3)(d) to be manifestly ill founded.
+The evidence placed before the court included a statement made by an informer.
+His identity was not disclosed in order to protect him from reprisals and the Strasbourg Court held that there was justification for this.
+In applying the sole or decisive test, the Court said this: The Court therefore concludes that in the present case the applicants conviction was not based exclusively or to a decisive extent on the evidence of the anonymous witness.
+In the Courts view, in assessing whether the procedures involved in the questioning of the anonymous witness were sufficient to counterbalance the difficulties caused to the defence due weight must be given to the above conclusion that the anonymous testimony was not in any respect decisive for the conviction of the applicant.
+The defence was thus handicapped to a much lesser degree.
+In Luc v Italy 36 EHRR 807 the applicant had been convicted on the sole basis of 4. a statement of a co accused, who had exercised his right not to give oral evidence and whom neither the applicant nor his counsel had had the right to question.
+The Court held that there had been a violation of articles 6(1) and 6(3)(d). 5.
+In PS v Germany (2001) 36 EHRR 1139 the applicant had been convicted of sexual assault on an 8 year old girl on the basis of statements that she had made which were the only direct evidence of his guilt, so that the conviction was based on the statements to a decisive extent.
+She was not called to give evidence and the Court found that there were shortcomings in the procedure that had been used.
+The Court held that there had been a violation of paragraph (3)(d) taken in conjunction with paragraph (1) of article 6. 6.
+In Visser v The Netherlands (Application No 26668/95), 14 February 2002 the applicants conviction had been based to a decisive extent on the statement of an anonymous witness who was not called to give evidence.
+The Court held that justification for this had not been demonstrated and that there had been a violation of articles 6(1) and 6(3)(d).
+The court recited the sole or decisive test.
+It also recited the passage from Kok, which I have quoted above. 7.
+In Birutis and others v Lithuania (Application Nos 47698/99 and 48115/99), 28 March 2002 the applicants had been convicted of taking part in a prison riot.
+A number of anonymous statements were admitted in evidence.
+The Court held that there was justification for the anonymity, but found a failure to take steps that were available to check the reliability of the statements.
+The Court found that one of the applicants had been convicted solely on the basis of such statement evidence, but that in the case of the other two such evidence had not been sole or decisive, but that the anonymous statements were among the grounds upon which their convictions were based paragraph 32.
+A violation of article 6(1) and (3)(d) was found in the case of each applicant.
+In Krasniki v Czech Republic (Application No 51277/99), 28 February 2006 the 8. applicant was convicted of drug offences on the basis of the statement of an anonymous witness.
+The Court found a violation of article 6(1) and (3)(d) taken together.
+The Court was not satisfied that the anonymity was justified and also held that the applicant had been convicted solely or at least to a decisive extent on the anonymous evidence.
+Once again the Court recited the passage that I have cited from Kok: paragraph 79. 9.
+In Taxquet v Belgium (Application No 926/05), 13 January 2009 the applicant had been convicted of murder and attempted murder at a trial where the statement of an anonymous witness had been admitted.
+The Court was not satisfied that anonymity was justified.
+The Court was unable to determine whether the conviction was based on objective evidence, or solely on the information supplied by the anonymous witness, orsolely on the statement by one of the co defendants accusing him.
+The Court found a violation of articles 6(1) and 6(3)(d).
+ANNEXE 4 (Prepared by Lord Judge see paragraph 93) 1.
+In this annexe references to the Domestic Position refer to the position in England and Wales.
+With one or two exceptions, this document only addresses cases cited to the House in which the ECtHR found the European Convention on Human Rights (the Convention) to have been violated.
+In relation to the non violation cases, the purpose behind their inclusion is that they illustrate that the absence of a violation of article 6 entitlements may nevertheless produce a conviction which would be regarded domestically as unsafe. 2 6 10 14 17 21 26 31 41 46 55 60 65 70 76 82 86 91 Contents Reference (1986) 13 EHRR 175 (1989) 12 EHRR 217 (1989) 12 EHRR 434 (1990) 13 EHRR 281 (1990) 16 EHRR 574 (1992) 15 EHRR173 (1993) 17 EHRR 251 (1996) 22 EHRR 330 (1996) 23 EHRR 288 (1997) 25 EHRR 647 (1999) (Application No 37019/97) (2001) 36 EHRR 807 (2001) 36 EHRR 1139 (2002) (Application No 26668/95) (2002) (Application Nos 47698/99 and 48115/99) (2003) 36 EHRR 431 (2006) (Application No 51277/99) (2009) (Application No 926/05) Category of Witness Paragraph Absent, identified Absent, identified Absent, anonymous Absent, anonymous Absent, identified Absent, anonymous Absent, identified Combination Absent, identified Anonymous present Absent identified Absent identified Absent Identified Anonymous, present in part Anonymous, absent Absent, identified Anonymous, absent, present Absent, anonymous Case Unterpertinger v Austria Bricmont v Belgium Kostovski v The Netherlands Windisch v Austria Delta v France Ldi v Switzerland Sadi v France Doorson v The Netherlands Ferrantelli and Santangelo v Italy Van Mechelen and others v The Netherlands AM v Italy Luc v Italy PS v Germany Visser v The Netherlands Birutis and others v Lithuania Sadak and others v Turkey Krasniki v Czech Republic Taxquet v Belgium Unterpertinger v Austria (1986) 13 EHRR 175 2.
+This case involves known, absent witnesses; the applicant was convicted of causing actual bodily harm to his step daughter on 14 August 1979 and grievous bodily harm (a fractured thumb) on 9 September 1979.
+During the first incident the applicant himself received injuries.
+The police were informed by a neighbour.
+His wife was questioned as a suspect, and his step daughter as a person involved.
+They made statements about the incident.
+Shortly afterwards the second incident occurred.
+The applicants wife received treatment for her injuries.
+The injury and incident were reported to the police by the hospital.
+In due course statements from the applicant and his wife were supplied by the hospital to the police.
+A judicial investigation into both incidents took place.
+During the investigation the wife gave an account of both incidents.
+She was later acquitted of criminal involvement in the first incident.
+When the wife and step daughter were informed by the trial court of their right to refuse to testify against the applicant, they did so.
+This meant that their oral testimony was not available at trial, and indeed the interview conducted with the wife during the judicial investigation was also excluded.
+The prosecution adduced the earlier statements to the police by the wife and step daughter.
+Evidence which was said to undermine their credibility was not admitted, although the statements in relation to the first incident had been obtained when they were questioned as a suspect and a person involved respectively. 3.
+Following a finding by the Commission that there was no violation, the ECtHR held that the applicants rights under articles 6(1) and 6(3)(d) were breached.
+The applicant was convicted on the basis of testimony in respect of which his defence rights were appreciably restricted (para 33).
+Domestic Position 4. would be quashed. 5.
+The oral testimony of both the wife and the step daughter is admissible.
+Both were available to give evidence, and they should have been called.
+Neither fell within the admissibility provisions in section 116.
+Any attempt to use the section 114(1)(d) route would have failed the interests of justice test.
+The statements before the trial court from the wife were incomplete, because her account to the investigating judge was not available.
+Yet every pre trial statement of any witness should be available for cross examination purposes.
+In any event, however, the applicant was prevented from challenging the credibility of the witnesses, or calling evidence to undermine it.
+No measures whatever were available or could be or were taken to protect the applicants position.
+A conviction on the basis of the evidence admitted in this case would be unsafe: in reality there would have been no trial.
+Bricmont v Belgium (1989) 12 EHRR 217 This trial would simply not proceed on this basis, and if it did, any conviction The ECtHR held that in relation to the charges which had not been subject to the 6.
+This conviction involved a known absent witness, the Prince of Belgium.
+He could not be summoned as a witness in the absence of a specific Royal decree.
+The trial court found that there was a clear and inexplicable want of diligence in seeking the truth (para 28) and noted that the persons best placed to provide information had been neither summoned nor examined as witnesses (para 28(a)).
+The applicant was acquitted of criminal charges brought against him on the basis of financial mismanagement. 7.
+The acquittal was appealed by the prosecution.
+The Court considered regrettable that evidence had been taken from the Prince in an unusual manner nevertheless, by allowing the prosecution to use the written statement of the alleged victim of the fraud without producing him for cross examination because he was old and ill, the applicant was convicted. 8. confrontation, there had been a violation of article 6(1) and (3)(d) taken together.
+Domestic Position 9.
+Ignoring the complicating factor that in Belgium the victims status as a member of the Royal Family gave him special privileges in the proceedings, which would not have been the case here, the admission of his untested evidence would have been highly unusual.
+The prosecution would have had to persuade the court that his written statement should be admitted under section 116(2)(b).
+In practical reality such an application would have been very surprising, and if made, would have failed the interests of justice test.
+There was no sufficient explanation for the inability of the witness to give oral testimony, and the trial court itself had serious reservations about the reliability of the evidence adduced from the complainant.
+If the Court of Appeal concluded that there had been a want of diligence in seeking the truth which was inexplicable or that the judge misdirected himself in relation to the interests of justice any conviction would be quashed as unsafe.
+Kostovski v The Netherlands 12 EHRR 434 10.
+This case concerned absent, anonymous witnesses.
+The applicant was convicted by the District Court, and, later, the Amsterdam Court of Appeal of conducting an armed robbery.
+The applicants conviction was based to a decisive extent on the statements of anonymous witnesses.
+Anonymous statements were made to the police and examining magistrates.
+The examining magistrate invited questions for him to put to the witness; of the 14 questions submitted by the applicants lawyers, only 2 were answered, on the basis that the remaining 12 may have breached the anonymity of the witness.
+The witnesses were not examined at trial.
+The witnesses identities were not known either to the examining magistrates or to the trial courts.
+The magistrates testified that, on the basis of their assessments, the anonymous witnesses were not unreliable and completely reliable. 11.
+The ECtHR held there had been a violation of articles 6(1) and 6(3)(d) taken together.
+At paragraphs 41 and 42, the Court noted that the use of statements acquired at the pre trial investigative stage was not in itself inconsistent with paragraphs (3)(d) and (1) of article 6 providing the defence had the opportunity to challenge and question a witness, but that, on this occasion, the nature and scope of the questions it could put [via the examining magistrates earlier in the proceedings] was considerably restricted by reason of the decision that the anonymity of the authors of the statements should be preserved.
+It is significant that the Court ascribed the problems associated with anonymous witnesses to the decision to render the witnesses anonymous; this suggests that the process by which the court arrived at the decision to grant anonymity was flawed, rather than the fact of anonymity per se. 12.
+The Court recognised the policy in favour of the use of anonymous evidence (para 44) but held that the general problems of anonymity were compounded by the absence of the anonymous witnesses at trial, and the subsequent admission of their evidence as hearsay see para 43.
+However, in concluding that paragraphs (1) and (3)(d) of article 6 of the Convention had been breached, it is significant that the Court noted that the right to a fair administration of justice. cannot be sacrificed to expediency(emphasis added); by contrast, the relevant considerations for the granting of anonymity, in section 5 of the 2008 Act, would not, on any reading, permit the granting of an order for reasons of expediency.
+Domestic Position 13.
+This case would not come to trial.
+If it did, it would be stopped.
+This evidence was anonymous hearsay.
+The relaxation of some of the rules against the use of anonymous witnesses under the Criminal Evidence (Witness Anonymity) Act 2008 does not extend to witnesses who are not only anonymous but also absent.
+In R v Mayers [2008] EWCA Crim 2989; [2009] 1 Cr App R 403, para 113, the Court of Appeal (Criminal Division) addressed an application by the Crown that a written statement by an anonymous absent witness should be admitted in evidence and read to the jury, and summarised the principle: we are being invited to re write the [Criminal Evidence (Witness Anonymity) Act 2008] by extending anonymous witness orders to permit anonymous hearsay evidence to be read to the jury.
+We cannot do so.
+Neither the common law, nor the [Criminal Justice Act 2003], nor the 2008 Act, permits it.
+In short, such evidence is inadmissible.
+Windisch v Austria (1990) 13 EHRR 281 14.
+The applicant was convicted of burglary on the basis of the anonymous, absent, testimony of two witnesses who had seen him in the vicinity of the area of the burglary, although they did not witness the crime itself.
+The witnesses were assured of anonymity by the police at the investigative stage, and their identity was kept from the Regional Court and the Supreme Court.
+On appeal, the Supreme Court refused the applicants request to have the witnesses summoned, on the basis that he had not established how the witnesses would be identified sufficiently to allow the summonses to be served. 15.
+The ECtHR noted, at para 31, that although the anonymous absent witnesses had not witnessed the crime itself, their testimony became the central issue during the investigation and at the hearing, and that the trial court relied, to a large extent on their testimony.
+Earlier in the judgment, at para 28, the Court stated that being unaware of their identity, the defence was confronted with an almost insurmountable handicap: it was deprived of the necessary information permitting it to test the witnesses reliability or cast doubt on their credibility.
+As such, the evidence involved such limitations on the rights of the defence that there had been a violation of para (3)(d), taken together with para (1), of article 6.
+Domestic Position 16.
+See paragraph 13 (above): the evidence would not be admissible.
+Delta v France (1990) 16 EHRR 574 17.
+This matter concerned an absent, identified witness.
+The applicant was convicted at the Paris Criminal Court, and, subsequently, at the Paris Court of Appeal and the Court of Cassation of the robbery of jewellery from two identified teenage girls.
+Upon being searched following his arrest, nothing incriminating was found on the applicant.
+The victims were the only witnesses, and, having provided statements to the police, failed to respond to court summons to attend as witnesses at the applicants trial.
+No reasons were given for their failure to do so.
+At the trial of first instance, the trainee barristers representing the applicant made no submissions in relation to the absent witnesses. 18.
+In upholding the conviction, the Paris Court of Appeal held that the absent witnesses statements satisf[ied] the Court that the defendant was guilty of the offences charged and [made] the requested examination of the witnesses unnecessary (para 20).
+The Court of Cassation refused to intervene in the appeal courts final assessment of all the evidence adduced and dismissed the appeal. 19.
+The ECtHR noted, at para 37, that neither the applicant nor his counsel ever had an adequate opportunity to examine witnesses whose evidence was taken into account decisively at first instance and on appeal, as the file contained no other evidence.
+They were therefore unable to test the witnesses reliability or cast doubt on their credibility The Court concluded that there had been a breach of article 6(3)(d) taken together with para (1).
+Domestic Position 20.
+The absence of the crucial witnesses for the prosecution was unexplained and unjustified.
+No attempt was made to trace them or compel their attendance, or to justify the reading of their statements.
+No countervailing measures to protect the interests of the defendant were or could be taken.
+An application for this evidence to be read would have failed the interests of justice test.
+Therefore if the case had proceeded to trial it would have been stopped, but if that safeguard had failed, and the case had resulted in a conviction, the conviction would have been quashed.
+Ldi v Switzerland (1992) 15 EHRR 173 21.
+This case concerned an anonymous, absent witness.
+The applicant was convicted of drug trafficking offences on the basis of the evidence of an absent and unidentified undercover police officer, operating with requisite official authorisation.
+The undercover officer initiated a series of meetings with the applicant in which, the officer testified, the applicant offered to sell large quantities of cocaine.
+The applicant was convicted by the District Court and, subsequently, by the Bern Court of Appeal and the Federal Court.
+In order to preserve his anonymity, the undercover officer was not called at trial; the court considered that telephone intercept records and the reports of the undercover agent were sufficient to establish the applicants criminality. 22.
+The Commission stated (at para 87) that the applicant did not have the opportunity to challenge and question the undercover officer, and noted that, while the applicant was convicted partly on the basis of his own admissions, those admissions were made when the applicant was confronted with intercept evidence by the undercover officer which he was unable to challenge in the trial proceedings.
+The Commission concluded that there was a breach of article 6(3)(d) taken together with article 6(1). 23.
+The ECtHR noted the operational requirement of law enforcement agencies to undertake intrusive and covert surveillance, but found that it would have been possible to preserve the anonymity of the undercover officer while simultaneously affording the applicant the opportunity to question him, or cast doubt on his credibility (para 49).
+This failure constituted a breach of article 6.
+Domestic Position 24.
+See paragraph 13 (above): the evidence would not be admissible. 25.
+In this particular case it is possible to go a little further: there was no reason to conceal the appearance of the undercover police officer from the applicant who had met him under his assumed identity on a number of occasions.
+So a witness anonymity order to preserve the true identity of the officer would nevertheless not prevent him from testifying in court, and therefore cross examined and challenged on the applicants behalf.
+It has already been recognised that: In relation to police officers the normal problem is not quite the same as that envisaged by orders for witness anonymity which were considered at the trial of Davis.
+These witnesses may well be known to the defendant by a false identity, or are using a false identity.
+Knowledge of their true identities can rarely be of any importance to the defendant, who can advance whatever criticisms of the evidence, or indeed the conduct of the officers, while they continue to be known by their false identities (R v Mayers [2009] 1 Cr App R 403, para 31).
+Effectively, the approach domestically and in Strasbourg would have been identical.
+It is unnecessary to address the admissibility of the telephone tap evidence: it is, to put it no higher, extremely unlikely that this evidence would have been admissible.
+Sadi v France (1993) 17 EHRR 251 26.
+This case involved identified, absent witnesses.
+The applicant was convicted in the Nice Criminal Court and, later, the Court of Appeal and Court of Cassation of the involuntary homicide of a fellow drug user, who died following the administration of drugs provided by the applicant.
+During the judicial investigation for that and other drugs related charges, the applicant was remanded in custody; one of the reasons for the detention at the time was the need to arrange witness confrontations.
+During his detention, the applicant was identified through a two way mirror by suspects detained by the police on other charges relating to drugs (see para 10) as the person responsible for providing them and the deceased with drugs.
+At trial and before the Court of Appeal, the applicant was convicted on the basis of statements made by these witnesses, who were absent from the trial.
+There was no positive attempt to conceal their identity nor to discuss the possibility of using other special measures, and on appeal no specific request was made for a confrontation.
+Nevertheless, stress was laid on Sadis behalf on the inadequacy of the investigation and the absence of any confrontation between him and his accusers.
+The Court of Cassation refused to interfere with the verdicts below. 27.
+The Commission noted (at para 44), that the applicant had been accused by his habitual [drug] clients and by the very persons who carried out some of his deliveries.
+It also noted that the applicant was found guilty on the sole basis of the statements of his accusers, and continued, the applicant should have been given the opportunity of being confronted with his accusers and thus enabled to put his own questions and comments about their statements.
+It concluded that there had been a violation of article 6. 28.
+Before the ECtHR, France argued that oral testimony was not required because (i) the file against the applicant was complete and confrontations would have served little purpose; and (ii) of the general difficulty of obtaining testimony from drug addicts, who may be fearful of reprisals arising from their cooperation with the authorities, made organising confrontations a sensitive matter.
+However no specific assertion was advanced that any of the witnesses was in fear of the applicant, or indeed his colleagues. 29.
+The ECtHR found (at para 44) that the convicting courts referred to no evidence other than the statements obtained prior to trial after the two way mirror identification.
+It also noted that the convicting courts themselves highlighted the relationship the witnesses bore to the applicant, namely that they were some of his regular customers and were those responsible for delivering consignments of drugs to other users.
+The failure to enable the applicant to examine the witnesses either at the investigative stage or at trial constituted a breach of article 6(1) and (3)(d).
+Domestic Position 30.
+This evidence would not be admitted.
+There was no good reason why the key witnesses could not be called and cross examined.
+Many witnesses in this class of case are reluctant to give evidence, but that does not constitute a sufficient basis for allowing hearsay evidence and disabling the defendant from challenging the evidence.
+In these cases witnesses are expected to give evidence: witness reluctance does not provide a sufficient basis for their absence, and in any event many of the concerns expressed by witnesses can be addressed by special measures.
+The crucial point is that the evidence of these witnesses was in issue, they were closely involved in the same drugs related question, and the circumstances in which their purported identifications took place required close examination.
+No countervailing measures offering appropriate protection to the applicants interests were available.
+The interests of justice required their oral testimony or the exclusion of their evidence.
+Doorson v The Netherlands (1996) 22 EHRR 330 31.
+This case concerned a combination of absent, identified, and anonymous witnesses.
+The applicant was convicted before the Amsterdam Regional Court and, later, by the Court of Appeal and the Supreme Court of drug trafficking.
+The applicant was identified from a photograph as a drug dealer by a number of witnesses who were known to be drug users. 32.
+Six of the witnesses who identified the applicant remained anonymous; the identity of a further two was disclosed.
+At first instance trial, the defence applied unsuccessfully for the court to summon the anonymous witnesses.
+Of the two identified witnesses, only one appeared at trial, initially testifying that he did not recognise the applicant.
+The witness subsequently purported to recognise the applicant when presented with the photograph from which he originally recognised him, though later admitted that he could not be sure, and that the reason he identified him to the police was in order to be reunited with his confiscated drugs.
+The evidence of a second absent but identified witness was read.
+The defence also questioned the failure of the prosecution to disclose details arising from identification of the applicant from photographs.
+The applicant was convicted. 33.
+The Court of Appeal requested the investigatory judge (who had been a member of the court in an earlier constitution of the Regional Court) to re examine the need for the witnesses continued anonymity and to question them on the applicants behalf.
+Two of the six anonymous witnesses attended the hearing before the investigatory judge.
+Their anonymity was upheld.
+They were questioned extensively by the judge and the applicants lawyer.
+They re identified the applicant from photographs put to them.
+In view of this questioning, and the fact it was not possible to secure the attendance of the remaining witnesses, the investigatory judge and Court of Appeal refused the applicants request to re summon all anonymous witnesses.
+The Court of Appeal and, later, the Supreme Court, upheld the conviction. 34.
+The Commission found by a majority there had been no breach of the Convention. 35.
+In summary, the conviction was based on (a) the oral evidence of one prosecution witness who deposed at trial, and retracted his statement to the police: (b) two anonymous witnesses who deposed orally and whom the defence could cross examine: (c) one witness who made a statement to the police and then disappeared. 36.
+The ECtHR found there was no breach of article 6(1) and (3)(d).
+In relation to anonymous witnesses, it articulated the following doctrine, at para 76, it should be recalled that, even when counterbalancing procedures are found to compensate sufficiently the handicaps under which the defence labours, a conviction should not be based either solely or to a decisive extent on anonymous statements 37.
+The Court continued that evidence obtained from witnesses, at para 76, under conditions in which the rights of the defence cannot be secured to the extent normally required by the Convention should be treated with extreme care.
+The Court is satisfied that this was done in the criminal proceedings leading to the applicants conviction, as is reflected in the express declaration of the Court of Appeal that it had treated [the anonymous testimony] with the necessary caution and circumspection.
+The Court held that the testimony from the absent but identified witness caused the applicant no unfairness because it was impossible to trace the witness, and the evidence was corroborated by other evidence before the court (para 80).
+In conclusion, therefore, the Court considered, None of the alleged shortcomings considered on their own lead the Court to conclude that the applicant did not receive a fair trial.
+Moreover, it cannot find, even if the alleged shortcomings are considered together, that the proceedings as a whole were unfair.
+Domestic Position 38.
+See paragraph 13: the anonymous witnesses did not give oral testimony at trial.
+Their evidence would not be admissible.
+The evidence of the witness who retracted his statement would have been judged by the jury.
+Given that the statement he made incriminating the applicant was rejected, the reliability of his allegations against the applicant would have been in serious doubt. 39.
+In relation to the identified witness who disappeared his written statement might have been admitted under section 116(2)(d) of the 2003 Act if the court had been satisfied all reasonably practicable steps had been taken to find him.
+However given that the witness was a known drug user, and the allegation against the applicant was drug trafficking, the absence of any opportunity for the defence to challenge the evidence would probably have led the court to exclude it. 40.
+A conviction would be most unlikely: and the case would probably be stopped.
+Ferrantelli and Santangelo v Italy (1996) 23 EHRR 288 41.
+This matter involved an absent, identified witness.
+The applicants, who were aged 17 and 18 at the time of the offence, were convicted of the murder of two police officers following statements provided to the police by a co accused.
+The co accused died before trial and before the applicants had the opportunity to examine him.
+During police questioning, the applicants admitted involvement in the attacks, but gave conflicting accounts and later claimed ill treatment.
+Three trials took place.
+The applicants were convicted 16 years following their initial arrest. 42.
+The Commission upheld the applicants complaints that there was excessive delay, in breach of article 6(1), and that the reliance on the statements of the deceased co accused was objectionable.
+The Commission held that the admission of the deceaseds statements was not per se objectionable, but that, at para 51, given the confession evidence taken with the evidence of the deceased co accused constituted the fundamental grounds for their conviction, there was a breach of article 6(1) of the Convention. 43.
+The ECtHR held that the delay amounted to a breach of article 6, in relation to the length of the proceedings, but that the reliance on the statement of the deceased co accused was compatible with the right to a fair trial contained in paragraphs (1) and (3)(d) of article 6.
+The reasoning for the latter conclusion appears to be because the Government could not be held responsible for the deceaseds death, and the fact that his evidence was corroborated by the applicants admissions to the police, other circumstantial evidence, and the lack of an alibi for either of them (see para 52).
+Domestic Position 44.
+Although this is a non violation case, it is worth noting that domestically, a trial taking place 16 years after the initial arrest of the defendants would almost certainly lead to an abuse of process argument, reinforced by the fact of prejudice to the defendants from their inability to cross examine a co accused whose statements to the police were relied on in support of the allegation against them. 45.
+For the same reason, given the absence of any opportunity for the defendants to test the accounts of the deceased co accused, although section 116(2)(a) provides that the statement of an identified, absent witness may be admitted as hearsay evidence where the witness is dead, admission in these circumstances would be likely to fail the interests of justice test under the 2003 Act and the fairness test under section 78(1) of the 1984 Act.
+In practice therefore the outcome of this case would have coincided with the decision of the Commission rather than the ECtHR itself.
+Van Mechelen and others v The Netherlands (1997) 25 EHRR 647 46.
+This case involved anonymous absent witnesses.
+The applicants were convicted of armed robbery and attempted murder on the basis of anonymous statements from police officers.
+The police officers were questioned by the investigatory judge in the shielded presence of the applicants and their lawyers who could hear but not see them.
+The officers did not testify at trial. 47.
+The Commission held by a majority that there had been no violation of article 6(1) and (3)(d), noting, at para 77, that article 6 does not grant the accused an unlimited right to secure the appearance of witnesses in court and, at para 79, that the applicants were suspected of having committed serious offences of violence. 48.
+Although anonymous testimony was received by an investigatory judge, it had been possible to challenge that evidence, (para 82) the Commission concluded that the applicants convictions did not solely rest on the statements by these unidentified witnesses, and continued to outline corroborative evidence, including tapped telephone conversations (para 84). 49.
+The ECtHR noted that special considerations apply where witnesses seeking anonymity were members of the police force of the State.
+The Court stated at para 60 that it had not been explained to the Courts satisfaction why it was necessary to resort to what it termed such extreme limitations and why less far reaching measures were not considered.
+The Court implied that it was not opposed to anonymous police testimony per se but that under the circumstances of the case, it had not been persuaded it was necessary; in the absence of further information, the Court cannot find that the operational needs of the police provide sufficient justification [for anonymity]. 50.
+The alleged threat of reprisals arising from testimony had not been assessed properly; anonymity was granted simply on the basis of the seriousness of the crime committed (para 61).
+Accordingly, the Court found that the convictions of the applicants were based to a decisive extent on anonymous statements and concluded that the proceedings taken as a whole were not fair (paragraphs 63 and 65), and there was a breach of article 6(1) taken together with article 6(3)(d).
+Domestic Position 51.
+Before considering whether it would be legally possible to apply for mass police anonymity, it is useful to consider whether such an application would actually be made, and whether those responsible for the application would deem such an application to be reasonable.
+In August 2008, the Director of Public Prosecutions issued Guidance on Witness Anonymity1 which states, under the section titled Considering whether to make an application, 1 http://www.cps.gov.uk/publications/directors_guidance/witness_anonymity.html#_08 Prosecutors must also be able to show that any fear expressed by the witness that they, or any other person, would suffer death or injury, or that there would be serious damage to property, if they were identified to the defendant, is reasonable (emphasis added).
+In this case it is open to very serious question whether an application for police anonymity would be made at all. 52.
+The Criminal Evidence (Witness Anonymity) Act 2008 contains no specific statutory provision relating to the anonymity of police officers: see para 25 (above) for further comment. 53.
+In the result, the conditions which would permit consideration to be given to the making of witness anonymity orders in this case were not established.
+Even on the basis that the justification for anonymity could be justified, the witnesses would nevertheless have been required to give oral testimony at trial, probably with the protection of special measures for them, which kept open the possibility of cross examination and challenge on behalf of the defendant.
+Incidentally, the views of the investigating judge about the credibility of the witnesses would be irrelevant and inadmissible: all decisions on credibility are the exclusive function of the jury on the basis of the evidence before them. 54.
+In reality, from the point of view of a trial before the jury, the way in which the evidence in the present case was actually presented that is, critical evidence from anonymous witnesses who were not present at trial would, even if permitted, have resulted in the quashing of any conviction.
+In effect, see paragraph 13: the evidence would not be admissible.
+AM v Italy (Application No 37019/97), 14 December 1999 55.
+The applicant was convicted of sexually assaulting G during a school trip G made to Italy.
+On his return to the United States G provided a detailed account of what took place to a US police officer.
+His father confirmed in interview that the child had made the complaint.
+Gs mother and Gs psychotherapist provided written statements confirming that G had recited to them the allegations against the applicant.
+The record of the account given by G and the other statements were used in evidence against the applicant.
+This case involved absent but identified witnesses.
+The international rogatory letter issued by the authorities in Italy explicitly asked the authorities in the USA to arrange for the witnesses to be questioned without a defence lawyer being present. 56.
+The ECtHR concluded, at para 26, in convicting the applicant the domestic courts relied solely on the statements made in the United States before trial and the applicant was at no stage in the proceedings confronted with his accusers 57.
+There was a breach of article 6(1) taken together with article 6(3).
+Domestic Position 58.
+Section 116(2)(c) of the CJA 2003 permits the admission of hearsay evidence where the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance.
+Before evidence can be introduced in this way it is necessary to show (a) that all reasonable steps have been taken to secure the presence of the witness; and (b) why those steps have failed.
+Moreover, assuming that this hurdle is cleared, it would then be necessary for the prosecution to show why other methods by which the evidence could be given, such as by means of a live link, would be impracticable. 59.
+Assuming that none of these steps to enable the jury to see the witness, or to enable the witness to be confronted by the defence could be taken, the starting point is that the statements of the father, mother and psychotherapist all constitute multiple hearsay obtained in circumstances where the investigating authorities expressly sought to arrange for the absence of a defence lawyer.
+In the circumstances of this case, that would have been likely to produce a decision under section 78 of the Police and Criminal Evidence Act 1984 excluding the evidence.
+But, if such an order were not made on the basis that the defendants lawyer did not press sufficiently for the opportunity to be present, the admission of the evidence would have been questioned as a step inconsistent with the interests of justice and section 78 would also have been engaged in the context of the adverse effect on the fairness of proceedings resulting from the admission of this evidence.
+The reality is that (a) the defendant could not defend himself against the allegations and (b) the jury would have no basis for making any assessment about the credibility and reliability of the makers of the statement.
+If the judge admitted the evidence he would have had to give the jury such clear directions about the dangers of convicting on the basis of such remote and untested evidence, that either (a) an acquittal would have been inevitable or (b) the Court of Appeal would quash the conviction on the basis, first, that the evidence should never have been admitted and, second, because the consequent conviction was unsafe.
+Luc v Italy (2001) 36 EHRR 807 60.
+This case involved an absent, but identified, witness.
+The applicant was convicted of drugs offences by the Locri Criminal Court and, later, the Court of Appeal and the Court of Cassation.
+An acquaintance of the applicant from the drugs world, N, made statements to the police, whilst detained as a suspect himself, which implicated the applicant.
+Italian law deemed N to be a person accused in connected proceedings against the applicant and, accordingly, N was permitted to refuse to testify.
+Further domestic provisions, triggered by Ns testimonial immunity, allowed the prosecution to read Ns statement to the Court. 61.
+Before the ECtHR the Italian Government argued that the domestic provisions highlighted the tension between the right of a co accused to remain silent, the right of the accused to question a witness against him, and the right of the judicial authority not to be deprived of evidence obtained during the investigation.
+In its summary of the facts, the ECtHR, at para 14, stated as a result [of the testimonial immunity provisions], the accused was deprived of any opportunity of examining [N] or of having him examined.
+It was irrelevant that the statements had been made by a co accused rather than a 62. witness; this illustrates the principle, found in many judgments relating to article 6(3)(d), that the term witness has an autonomous meaning within the Convention system.
+N, a co accused, was therefore a witness for these purposes.
+Accordingly, the Court was not satisfied that the applicant was given an adequate and proper opportunity to contest the statements on which his conviction was based and there had been a breach of article 6(1) and (3)(d).
+Domestic Position 63.
+Although described as a co accused, it appears from the judgment that the witness was an accused in a related but separate case.
+That said, he was entitled to and would have been warned that he was not obliged to give evidence which might incriminate him in any offence.
+Assuming that he elected not to give evidence, any oral statement he made during the police investigation would not have been admissible.
+An application could have been made for any written statement, taken in proper form, to be read to the jury.
+The evidence would not have been admissible under section 116, but the prosecution might have argued for its admissibility under section 114(1)(d). 64.
+In exercising his discretion whether to admit the evidence, the judge would have been alert to the dangers of admitting a statement made by a suspect who had exercised his right not to incriminate himself, and thus avoiding any challenge or cross examination.
+That consideration would then bear on issues of the potential unreliability of the maker of the statement, and the difficulties faced by the defendant, unable to meet the allegation head on, and the prejudice which would be likely to be occasioned to him.
+All these would provide overwhelming reasons against permitting the statement of the witness to be read.
+If nevertheless admitted, the judge would have been required to give the clearest possible warnings against the jury relying on this evidence, but if the jury had convicted, the Court of Appeal could almost certainly question whether (a) the decision to admit the evidence was correct: (b) whether the warnings to the jury were in sufficiently clear terms: and (c) whether the conviction was nevertheless a safe one.
+In short, a conviction might in theory have been open: in reality there would have been none, and the prosecution would almost certainly have failed to persuade the court to admit the evidence in the first place, and any conviction would be regarded as unsafe.
+PS v Germany (2001) 36 EHRR 1139 65.
+This case involved an absent, identified witness.
+The applicant was convicted of a sexual offence against an 8 year old girl, section The applicant was her private music teacher.
+Her father reported to the police that the applicant had abused her during a music lesson.
+S and her mother were questioned at the police station.
+S confirmed her fathers allegation.
+Her mother stated that S had been very disturbed after her music lesson and that she had later confided in her mother, presumably that she had been assaulted.
+At trial a request on the applicants behalf for a psychological expert opinion regarding the credibility of Ss complaints was rejected.
+The court believed that it was not reasonable to hear the evidence from the complainant herself, on the basis that her recollection had been repressed and if she were reminded of it, or required to remember it, her personal development would be seriously impaired. 66.
+The Regional Court dismissed an appeal against conviction.
+The applicants guilt was established on the basis of the statements made by the complainants mother and the police officer as well as a psychological expert opinion on Ss credibility which was prepared for the appeal process.
+There was medical evidence before the Regional Court confirming the likely deterioration of Ss health if she gave evidence of the assault. 67.
+Following the alleged sexual assault, S and her mother were questioned at a police station.
+The parents of S provided statements to the police as to her condition and state immediately following the assault, but did not allow her to testify at trial on account of the distress that it would cause her to recount the events in court.
+The trial court refused the applicants request to appoint an expert to determine the credibility of Ss statements, holding that its own professional experience in evaluating statements made by children was sufficient.
+The trial court also noted that if S were to be examined as a witness, rather than contributing to a further clarification of the facts, it would, by contrast, seriously impair her personal development. 68.
+The ECtHR concluded that a conviction based on this evidence involved such limitations on the rights of the defence that the trial was unfair.
+No counterbalancing measures could be taken to address the limitations on the rights of the defence, and the decision of the District Court to refuse to hear the oral testimony of the child or to appoint the expert requested by the defence were rather vague and speculative.
+There was, accordingly, a violation of article 6(1) and (3)(d).
+Domestic Position 69.
+This conviction of a sexual offence against a child was based on the hearsay evidence of her mother, a police officer, and a psychological expert, who all reported what the child had said.
+There was no evidence to suggest that the child could not have been called, subject to special protective measures, as a prosecution witness.
+Therefore, apart from the mothers evidence of her daughters condition on her return home after the music lesson, none of the material on which this conviction was based would be admitted.
+The childs accounts to the police and her mother and the expert were hearsay.
+The evidence of the expert about the childs credibility would also have been inadmissible; in effect such evidence would usurp the responsibility of the jury.
+Visser v The Netherlands (Application No 26668/95), 14 February 2002 70.
+This case involved a conviction for kidnapping, based to a decisive extent on the evidence of an anonymous witness who was not called to give evidence on the basis of his/her fear of reprisals from the applicants co accused.
+Six years after the offence was committed, as the case progressed through the system, the anonymous witness was questioned before an investigatory judge, and his counsel was given a limited opportunity to provide questions for the judge to put to the witness. 71.
+The ECtHR found, para 47, that the investigatory judge did not show how he assessed the reasonableness of the personal fear of the witness either as this had existed when the witness was heard by police or when s/he was heard by the investigating judge nearly six years later.
+Moreover an examination into the seriousness and well foundedness of the reasons for the anonymity of the witness when it decided to use the statement before the investigating judge in evidence was not carried out. 72.
+The ECtHR did not appear to object to the use of anonymous witnesses per se; rather it was the case that, at para 48, In these circumstances the Court is not satisfied that the interest of the witness in remaining anonymous could justify limiting the rights of the defence to the extent that they were limited (emphasis added).
+In short, for this evidence to be admitted the judge would have had to make a Domestic Position 73.
+See paragraph 13: the evidence of any absent anonymous witness would not be admissible.
+The evidence of a witness who gives oral testimony at trial may be given anonymously.
+Before such evidence can be admitted at all, a robust analysis of the need for his or her anonymity is required by the Criminal Evidence (Witness Anonymity) Act 2008.
+The prosecutor must, unless the court directs otherwise, inform the court of the identity of the witness (section 3(2)).
+The court must be satisfied that the measures proposed are necessary: that if adopted they would be consistent with the defendant receiving a fair trial: and that without an anonymity order, the witness would not testify (section 4).
+The court must examine the credibility of the witness, and whether and if so how it could be properly tested without disclosure of his or her identity (section 5).
+Thereafter, even with the use of special measures, such as screening, the defence would be enabled to challenge the evidence. 74. reasoned finding that the necessary conditions were satisfied. 75.
+It is highly unlikely that a domestic court would find that the necessary conditions were satisfied, but in any event in accordance with the reasoning of the ECtHR, if a proper examination of the facts or a reasoned decision about whether to admit this evidence were lacking, the conviction would be unsafe.
+Birutis and others v Lithuania (Application Nos 47698/99 and 48115/99), 28 March 2002 76.
+This case involves the use of anonymous, absent witnesses resulting in the conviction of three applicants, A, B, and C, for taking part in a prison riot.
+The evidence against A and B included testimony given by other co accused, circumstantial evidence, in addition to the statements of a variety of anonymous witnesses, believed to be fellow inmates at the prison.
+The Regional Court referred to the statements of 17 and 19 anonymous witnesses when convicting A and B respectively.
+When convicting C, the Regional Court referred solely to the statements by six anonymous witnesses recorded by the prosecution during the pre trial investigation. 77.
+The ECtHR noted that anonymous evidence may be appropriate in some cases, especially in the instant cases, where prisoners may fear testifying against fellow detainees.
+However, it noted, at para 30, that this circumstance, as such, could not justify any choice of means by the authorities in handling the anonymous evidence.
+At para 31 the ECtHR noted that applicant C was convicted solely on the basis of anonymous evidence; although he had been permitted to question three other witnesses in open court during the trial, the domestic courts did not base his conviction on any evidence given by those witnesses. 78.
+The Court noted that the convictions of applicants A and B were not based solely, or to a decisive extent, on the anonymous evidence but that because there were a high number of anonymous statements, the trial court effectively demonstrated that the statements in question were among the grounds upon which the first and second applicants conviction was based (para 32).
+As such, the Court looked for counterbalancing measures to offset the handicap suffered by the defence; it did not find adequate measures. 79.
+The Court noted at paragraphs 33 and 34 that A and B had alleged that there were inconsistencies in the anonymous statements.
+There was a basis to suspect the authorities had collaborated with the makers of the statements to implicate the applicants; this was evidenced by the fact that the witnesses who did testify at trial sought to retract their original statements implicating the applicants, claiming they had been made under pressure from the prison authorities.
+In fact, the trial courts held that their original testimony was more reliable, and discarded the revised testimony.
+Despite these genuine concerns as to the credibility of the anonymous witnesses, A and B were not permitted to question them.
+The domestic courts did not avail themselves of their statutory power to question the witnesses.
+In addition, there was no scrutiny by the courts of the decision to grant anonymity.
+As such, the handicaps on the first and second applicants defence rights were not counterbalanced by the procedures followed by the domestic judicial authorities There was a breach of article 6.
+Domestic Position 80.
+The prosecution case against some defendants depended exclusively on anonymous hearsay evidence, and against others, largely of anonymous hearsay, that is anonymous absent witnesses.
+See paragraph 13: the evidence would not be admissible. 81.
+Assuming that any individual witness were available to be called at trial, an application for his anonymity would have required the process identified in paragraph 73 (above) to be engaged.
+It was essential that the defendant should have the opportunity of challenging this evidence, not least because, by definition, they would almost certainly (as prisoners, unless individuals of good previous character on remand) have had previous criminal convictions, which the defendant might have wished to explore before the jury.
+Assuming that this case had proceeded before the jury on the basis of the process before the regional court in Lithuania, even if the judge had admitted any of this evidence, he would have been required to give the jury a most solemn warning about the dangers of relying on evidence which the defendant could not test, and assuming that the jury disregarded his warnings, the overwhelming likelihood is that without any further evidence (and as far as we can see there was none which the jury could have relied on) the convictions would be unsafe.
+Sadak and others v Turkey (2003) 36 EHRR 431 82.
+The applicants were former Turkish parliamentarians convicted of membership of an armed gang, on account of their involvement in the Peoples Democratic Party, which the domestic courts held to be separatist activity linked to a paramilitary campaign for the creation of a separate Kurdish state (para 17).
+Legal argument took place as to the classification of their offences under terrorism or treason provisions; different charges were brought in the course of the proceedings.
+The applicants were acquitted of treason charges, which attracted the death penalty. 83.
+At trial, the prosecution had refused to call some witnesses on account of their fear of sectarian violence; others were not requested by the applicants at trial.
+The case therefore involved known, absent witnesses.
+Argument before the ECtHR addressed, inter alia, whether the absence of those witnesses breached article 6(3)(d). 84.
+The ECtHR noted that in some circumstances, the judicial authorities may find it necessary to use statements obtained at the preparatory investigation stageprovided the accused has had an adequate and sufficient opportunity to challenge the statements at the time they were made or at a later date However, the Court stated that the domestic court gave a determining weight to certain statements made by witnesses which the applicants were not able to examine or challenge.
+Domestic Position 85.
+Assuming that it was established that the witnesses were fearful of giving evidence within the context of section 116(2)(e) of the 2003 Act, the additional admissibility criteria in section 116(4) would have to be addressed.
+The application to adduce this evidence would fail, first, because there had been no adequate investigation into the reasons why the witnesses attendance at court to give oral testimony, if necessary using special measures available for fearful witnesses, was justified, and, second, because the admission of this evidence, given the difficulty faced by the defendant seeking to challenge it, would be likely to produce an unfair trial.
+Krasniki v Czech Republic (Application No 51277/99), 28 February 2006 86.
+This case concerns anonymous witnesses, one present and one absent from trial.
+The applicant was convicted of drugs offences.
+During the pre trial judicial investigation, two anonymous witnesses, both of whom were drug users, were questioned.
+The applicants lawyer was permitted to ask questions relating to, amongst other matters, why the witnesses sought anonymity.
+In reply they stated they were in fear of reprisals for speaking to the authorities, and one of them owed money for drugs.
+One of the anonymous witnesses testified at trial, but, because the other could not be located, her testimony was read to the court.
+The testimony alleged that drugs had been purchased from the applicant. 87.
+Before the ECtHR, the applicant argued that the need for anonymity had not been tested properly and the authorities should have made greater efforts to assess the witnesses fear of reprisals.
+The applicant also challenged the prosecutions failure to disclose the criminal record of one of the anonymous witnesses who was, it emerged, being held in the same prison as the applicant.
+He also highlighted discrepancies between some aspects of the testimony of the witnesses that should have led to the prosecution assessing the witnesses credibility in further depth. 88.
+The Court held that there had been a breach of article 6(1) and (3)(d), and noted, at para 81, that the authorities had attempted to approach the anonymous testimony with some caution, but that it was not clear how the investigating officer and the trial judge assessed the reasonableness of the personal fear of the witnesses in relation to the applicant.
+The conclusion at para 83 was that, the Court is not satisfied that the interest of the witnesses in remaining anonymous could justify limiting the rights of the applicant to such an extent Domestic Position 89.
+See paragraph 13: the evidence of an anonymous absent witness would not be admissible. 90.
+In any event, so far as the witness who gave oral evidence, but anonymously, no proper foundation for his anonymity was established.
+The strict conditions in the 2008 Act were not met: his evidence, too, would therefore not have been admitted.
+Taxquet v Belgium (Application No 926/05), 13 January 2009 91.
+This case concerns an absent, anonymous witness.
+The applicant was convicted of being a principal party to the 1991 murder and attempted murder of a Belgian government minister and his partner respectively.
+An anonymous informant, whose identity was known only to the police, provided detailed information implicating several of the 8 people who would be the co defendants in the case.
+Only one aspect of the information implicated the applicant. 92.
+At trial before the Assize Court, the applicant unsuccessfully applied for an investigating judge to question the original anonymous witness.
+In refusing the request, the Assize Court held that the information had no probative value as such.
+In the present case it simply constituted information capable of giving fresh impetus or a new slant to the investigation and leading to the independent gathering of lawful evidence.
+The Assize Court also stated that the court was unaware of the identity of the witness in any event and regardless of the grounds [for maintaining anonymity] relied upon by the investigating authorities it does not appear useful for establishing the truth and would delay the proceedings needlessly (para 12). 93.
+Before the Chamber, the applicant complained that his article 6 rights had been breached in relation to: (i) the inadequate reasoning given by the jury; and (ii) the reliance on anonymous witnesses.
+It appears that this is the first reported instance at Strasbourg of the sole or decisive test being linked to the extent to which the jury are obliged to give reasons for their conclusions.
+In holding that the applicants article 6 rights were breached, the Chamber appears to have considered the issues being interrelated.
+It may be helpful to quote the summary of the applicants position in full, taken from para 55, testimony The applicant contended that the question of the anonymous witness took on particular significance in his case as it was linked to the preceding complaint concerning the lack of reasoning in the Assize Courts judgment.
+In order to be able to find that a witness statement had played a decisive role in a persons conviction, it was necessary to know the reasons for the decision, but in the present case none had been given.
+If the reasoning had been known, it might have been possible to identify the information received anonymously as having been a decisive factor, or the sole factor, in establishing his guilt. 94.
+The ECtHR did not rule out the use of anonymous statements per se, rather, it stipulated the process by which the informants anonymity should be granted.
+No such process was followed in the instant case.
+At para 64 the Court stated, anonymous statements should be examined by a judge who knows of the identity of the witness, has verified the reasons for granting anonymity and is able to express an opinion on the witnesss credibility in order to establish whether there is any animosity between the witness and the accused. (Emphasis added).
+In relation to whether the evidence of the anonymous informant was sole or 95. decisive, the Court stated that the Government had not produced anything to show that the finding of the applicants guilt was based on other real evidence, on inferences drawn from the examination of other witnesses or on other undisputed facts (para 66).
+It concluded that the applicants misgivings in relation to the use of the anonymous witness were justified, and accordingly, there was a violation of article 6(1) and (3)(d) of the Convention.
+Domestic Position 96.
+See paragraph 13: the statement of an absent anonymous witness would not be admissible.
+Even if present, anonymity is only permitted under strict conditions and subject to countervailing safeguards for the defendant.
+In any event, on the basis of this evidence, this case would not have proceeded to trial.
+Any conviction would have been unsafe.
+LORD BROWN
+add a few paragraphs of my own.
+I am in full agreement with the judgment of Lord Phillips.
+I wish, however, to
+These appeals are of the utmost importance.
+If the Strasbourg case law does indeed establish an inflexible, unqualified principle that any conviction based solely or decisively on evidence adduced from an absent or anonymous witness is necessarily to be condemned as unfair and set aside as contrary to articles 6(1) and 6(3)(d) of the Convention, then the whole domestic scheme for ensuring fair trials the scheme now enshrined (as to hearsay evidence) in the Criminal Justice Act 2003 and (as to anonymous evidence) in the Criminal Evidence (Witness Anonymity) Act 2008 cannot stand and many guilty defendants will have to go free.
+It is difficult to suppose that the Strasbourg Court has in fact laid down so absolute a principle as this and, indeed, one exception to it, at least, appears to be acknowledged: the fairness of admitting hearsay evidence from a witness absent as a result of the defendants own intimidation.
+But if this is recognised (and, as others have pointed out, this exception itself involves difficulties of proof) why not recognise other exceptions too provided only and always that the procedures honour the ultimate imperative of a fair trial? That, after all, is the overarching principle for which the great bulk of Strasbourg jurisprudence on article 6 stands.
+Given, moreover, the recognition of even one exception, what justification can there be for an otherwise absolute principle? It cannot then be said to be mandated simply by the language of article 6(3)(d).
+Nor, indeed, do I understand the Strasbourg Court ever to have suggested this.
+Nor can Strasbourg readily be supposed to have intended the sort of practical
+problems and anomalies identified by the Court of Appeal (paragraphs 61 63 and 68 71) that must inevitably flow from any absolute principle of the kind here contended for.
+Obviously, the more crucial the evidence is to the proof of guilt, the more scrupulous must the Court be to ensure that it can be fairly adduced and is likely to be reliable.
+In this connection there can be no harm in using the concept of sole or decisive so long as it is used broadly as it is in the 2008 Act with regard to anonymous witnesses and, indeed, in the control order context where it relates rather to the allegations made against the suspect than the evidence adduced in support.
+Understood and applied inflexibly, however, the concept would involve insoluble problems of detailed interpretation and application.
+The better view may therefore be that no such absolute principle emerges from the Strasbourg Courts judgment in Al Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1.
+In this event the stuffing falls out of these appeals and they must fail: the domestic legislation on hearsay evidence was faithfully followed in the courts below; there was nothing unfair about admitting the relevant statements and the convictions can be seen to be perfectly safe.
+I recognise, however, the distinct possibility that the Strasbourg Court in Al Khawaja really did intend to lay down an absolute principle along the lines here contended for and it may be, indeed, that the outcome of that very case itself tends to support such a view.
+In this event the question then arises: what should this Court do? Should we accept and apply this absolute principle with the inevitable result that these appeals must be allowed or should we instead decline to follow the Strasbourg decision in Al Khawaja and in effect join with the United Kingdom Government in inviting the Grand Chamber to overrule it (the Grand Chamber panel having adjourned the UKs request for such a reference until the pronouncement of our decision on these appeals)?
+I have not the least doubt that the latter course is to be preferred.
+This case seems to me a very far cry from Secretary of State for the Home Department v AF (No 3) [2009] 3 WLR 74 where the House of Lords was faced with a definitive judgment of the Grand Chamber in A v United Kingdom (2009) 49 EHRR 625 on the very point at issue and where each member of the Committee felt no alternative but to apply it.
+Lord Rodger put it most succinctly (at para 98): Argentoratum locutum, iudicium finitum Strasbourg has spoken, the case is closed.
+Moreover not merely was the Strasbourg ruling in A clear and authoritative but,
+whatever view individual members of the Committee may have taken about it (and it is evident that, whilst many agreed with it, others did not), it expressed an entirely coherent view.
+The contrasts with the present situation are striking.
+In the first place, we are faced here not with a Grand Chamber decision but rather with the possible need for one.
+Moreover, not merely is the Courts ruling in Al Khawaja not as authoritative as a Grand Chamber decision, but it is altogether less clear than was the decision in A. Indeed, as I have already suggested, it is far from certain that Al Khawaja stands for any absolute principle of the sort here contended for.
+I would reject the appellants argument that not merely is the Courts judgment in Al Khawaja clear but, unlike the position in A, it is supported by a whole stream of consistent earlier Strasbourg case law and consequently more, rather than less, authoritative than the ruling in A.
+For the reasons fully elaborated by the Court of Appeal and now by Lord Phillips, I cannot accept that the earlier cases support, still less compel, an absolute principle such as Al Khawaja is now said to stand for.
+Accordingly, in agreement both with Lord Phillips and with the judgment of the Court of Appeal, I too would dismiss these appeals and express the hope that the Grand Chamber will clarify the law upon hearsay evidence and recognise that our domestic legislation is compatible with article 6.
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+The seventh chapter of Deuteronomy records the following instructions given by Moses to the people of Israel, after delivering the Ten Commandments at Mount Sinai: 1.
+When the Lord thy God shall bring thee into the land whither thou goest to possess it, and hath cast out many nations before thee, the Hittites, and the Girgashites, and the Amorites, and the Canaanites, and the Perizzites, and the Hivites, and the Jebusites, seven nations greater and mightier than thou; 2 And when the Lord thy God shall deliver them before thee; thou shalt smite them, and utterly destroy them; thou shalt make no covenant with them, nor show mercy unto them: 3.
+Neither shalt thou make marriages with them; thy daughter thou shalt not give unto his son, nor his daughter shalt thou take unto thy son. 4.
+For they will turn away thy son from following me, that they may serve other gods: so will the anger of the Lord be kindled against you, and destroy thee suddenly.
+The third and fourth verses appear to be a clear commandment against intermarriage lest, at least in the case of a Jewish man, the foreign bride persuade her husband to worship false gods.
+It is a fundamental tenet of Judaism, or the Jewish religion, that the covenant at Sinai was made with all the Jewish people, both those then alive and future generations.
+It is also a fundamental tenet of the Jewish religion, derived from the third and fourth verses that I have quoted, that the child of a Jewish mother is automatically and inalienably Jewish.
+I shall describe this as the matrilineal test.
+It is the primary test applied by those who practise or believe in the Jewish religion for deciding whether someone is Jewish.
+They have always recognised, however, an alternative way in which someone can become Jewish, which is by conversion.
+Statistics adduced in evidence from the Institute for Jewish Policy Research (the Institute) show that in the first half of the 20th century over 97% of the Jews who worshipped in this country did so in Orthodox synagogues.
+Since then there has been a diversification into other denominations, and a minority of Jews now worship in Masorti, Reform and Progressive synagogues.
+The Institute records a significant decline in the estimated Jewish population in the United Kingdom, which now numbers under 300,000, of which about 70% are formally linked to a synagogue and 30% unaffiliated.
+Those who convert to Orthodox Judaism in this country number only 30 or 40 a year.
+The requirements for conversion of the recently formed denominations are less exacting than those of Orthodox Jews.
+Lord Jonathan Sacks, Chief Rabbi of the United Hebrew Congregation of the Commonwealth and leader of the Orthodox Jews in this country, issued a paper about conversion, through his office (the OCR) on 8 July 2005.
+In it he stated that conversion was irreducibly religious.
+He commented: Converting to Judaism is a serious undertaking, because Judaism is not a mere creed.
+It involves a distinctive, detailed way of life.
+When people ask me why conversion to Judaism takes so long, I ask them to consider other cases of changed identity.
+How long does it take for a Briton to become an Italian, not just legally but linguistically, culturally, behaviourally? It takes time.
+A Jew by conversion is a Jew for all purposes.
+Thus descent by the maternal line from a woman who has become a Jew by conversion will satisfy the matrilineal test.
+JFS is an outstanding school.
+For many years far more children have wished to go there than there have been places in the school.
+In these circumstances it has been the policy of the school to give preference to those whose status as Jews is recognised by the OCR.
+That is to children whose mothers satisfy the matrilineal test or who are Jews by conversion by Orthodox standards.
+The issue raised by this appeal is whether this policy has resulted in an infringement of section 1 of the Race Relations Act 1976 (the 1976 Act).
+These proceedings were brought on the application of E in relation to M, his 13 year old son.
+E wished to send M to JFS and M wished to go there.
+He was refused admission because he was not recognised as a Jew by the OCR.
+His father is recognised as such but the OCR does not regard that as relevant.
+What matters is whether his mother was a Jew at the time of his birth.
+She is Italian by birth.
+As she was not born of a Jewish mother she could only have been recognised by the OCR as a Jew and as capable of conferring Jewish status on M if she had converted to Judaism before M was born.
+She had undergone a course of conversion to Judaism before Ms birth under the auspices of a non Orthodox Synagogue, not in accordance with the requirements of Orthodox Jews.
+The result is that, while her conversion is recognised by Masorti, Reform and Progressive Jews, it is not recognised by the OCR.
+E and his wife are divorced.
+They practise the Jewish faith and worship at a Masorti synagogue.
+E failed in these judicial review proceedings in which he challenged the admissions policy of JFS before Munby J, but succeeded on an appeal to the Court of Appeal.
+The question of Ms admission has already been resolved between the parties, but the Governing Body of JFS is concerned at the finding of the Court of Appeal that the schools admissions policy infringes the 1976 Act, as are the United Synagogue and the Secretary of State for Children, Schools and Families.
+Indeed this case must be of concern to all Jewish faith schools which have admissions policies that give preference to Jews.
+While the court has appreciated the high standard of the advocacy addressed to it, it has not welcomed being required to resolve this dispute.
+The dissatisfaction of E and M has not been with the policy of JFS in giving preference in admission to Jews, but with the application of Orthodox standards of conversion which has led to the OCR declining to recognise M as a Jew.
+Yet this appeal necessarily raises the broader issue of whether, by giving preference to those with Jewish status, JFS is, and for many years has been, in breach of section 1 of the 1976 Act.
+The implications of that question extend to other Jewish faith schools and the resolution of the bone of contention between the parties risks upsetting a policy of admission to Jewish schools that, over many years, has not been considered to be open to objection.
+This demonstrates that there may well be a defect in our law of discrimination.
+In contrast to the law in many countries, where English law forbids direct discrimination it provides no defence of justification.
+It is not easy to envisage justification for discriminating against a minority racial group.
+Such discrimination is almost inevitably the result of irrational prejudice or ill will.
+But it is possible to envisage circumstances where giving preference to a minority racial group will be justified.
+Giving preference to cater for the special needs of a minority will not normally involve any prejudice or ill will towards the majority.
+Yet a policy which directly favours one racial group will be held to constitute racial discrimination against all who are not members of that group see, for instance, Orphanos v Queen Mary College [1985] AC 761 at p. 771.
+Nothing that I say in this judgment should be read as giving rise to criticism on moral grounds of the admissions policy of JFS in particular or the policies of Jewish faith schools in general, let alone as suggesting that these policies are racist as that word is generally understood.
+Direct discrimination
+I propose in the first instance to consider whether the admissions policy of the JFS has led it to discriminate directly against M on racial grounds.
+The relevant provisions of the 1976 Act are as follows.
+Racial discrimination (1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if (a) On racial grounds he treats the other less favourably than he treats or would treat other persons 3.
+Meaning of racial grounds (1) In this Act, unless the context otherwise requires racial grounds means any of the following grounds, namely colour, race, nationality or ethnic or national origins; racial group means a group of persons defined by reference to colour, race, nationality, or ethnic or national origins; (2) The fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group for the purposes of this Act.
+Section 17 deals with educational establishments and provides that it is unlawful for the governors of a maintained school, such as JFS, to discriminate against a person in the terms on which it offers to admit him to the establishment as a pupil.
+It is common ground that JFS discriminated against M in relation to its terms of admission to the school.
+The issue of whether this amounted to unlawful direct discrimination on racial grounds depends on the answer to two questions: (1) What are the grounds upon which M was refused entry? (2) Are those grounds racial?
+Grounds
+In the phrase grounds for discrimination, the word grounds is ambiguous.
+It can mean the motive for taking the decision or the factual criteria applied by the discriminator in reaching his decision.
+In the context of the 1976 Act grounds has the latter meaning.
+In deciding what were the grounds for discrimination it is necessary to address simply the question of the factual criteria that determined the decision made by the discriminator.
+This approach has been well established by high authority.
+In R v Birmingham City Council, Ex p Equal Opportunities Commission [1989] AC 1155 the entry criteria applied by the Council for admission to selective single sex grammar schools was in issue.
+More places were available in boys schools than in girls schools.
+The result was that girls had to obtain higher marks in the entry examination than boys.
+The motive for the disparity was, no doubt, that this was necessary to ensure that entry to the schools was determined on merit.
+The House of Lords held, none the less, that the disparity constituted unlawful discrimination contrary to the Sex Discrimination Act 1975 which prohibited discrimination against a woman on the ground of her sex.
+Lord Goff of Chieveley, with whom the other members of the Committee agreed, said at p. 1194: There is discrimination under the statute if there is less favourable treatment on the ground of sex, in other words if the relevant girl or girls would have received the same treatment as the boys but for their sex.
+The intention or motive of the defendant to discriminate, though it may be relevant so far as remedies are concerned (see section 66(3) of the Act of 1975), is not a necessary condition of liability; it is perfectly possible to envisage cases where the defendant had no such motive, and yet did in fact discriminate on the ground of sex.
+Indeed, as Mr. Lester pointed out in the course of his argument, if the councils submission were correct it would be a good defence for an employer to show that he discriminated against women not because he intended to do so but (for example) because of customer preference, or to save money, or even to avoid controversy.
+In the present case, whatever may have been the intention or motive of the council, nevertheless it is because of their sex that the girls in question receive less favourable treatment than the boys, and so are the subject of discrimination under the Act of 1975.
+The difference between the motive for discrimination and the factual criteria applied by the discriminator as the test for discrimination lay at the heart of the division between the majority and the minority of the House of Lords in James v Eastleigh Borough Council [1990] 2 AC 751, another case where sex discrimination was in issue.
+The Council discriminated between men and women, aged between 60 and 65, in relation to the terms on which they were admitted to swim in a leisure centre run by the Council.
+Women in this age band were admitted free whereas men had to pay an entry charge.
+The motive for this discrimination could perhaps be inferred by the manner in which this rule was expressed, namely that those of pensionable age were to be admitted free of charge; women became of pensionable age when they were 60, men when they were 65.
+Counsel for the Council explained at p. 758 that the councils reason for giving free access to those of pensionable age was that their resources were likely to have been reduced by retirement.
+The Court of Appeal had treated this motive as being the relevant ground for discriminating in favour of women and against men rather than the factual criterion for discrimination, which was plainly the sex of the person seeking admission to the centre.
+Lord Bridge, delivering the first opinion of the majority, held that the reasoning of the Court of Appeal was fallacious and that the Councils policy discriminated on the ground of sex.
+At p. 764 he said of their judgment: The Court of Appeals attempt to escape from these conclusions lies in construing the phrase on the ground of her sex in section 1(1)(a) as referring subjectively to the alleged discriminators reason for doing the act complained of.
+As already noted, the judgment had earlier identified the councils reason as to give benefits to those whose resources would be likely to have been reduced by retirement and to aid the needy, whether male or female.
+But to construe the phrase, on the ground of her sex as referring to the alleged discriminators reason in this sense is directly contrary to a long line of authority confirmed by your Lordships House in Reg. vs Birmingham City Council, Ex parte Equal Opportunities Commission.
+Having cited the passage from Lord Goffs judgment that I have set out at paragraph 12 above, he commented, at p 765: Lord Goffs test, it will be observed, is not subjective, but objective.
+Adopting it here the question becomes: Would the plaintiff, a man of 61, have received the same treatment as his wife but for his sex? An affirmative answer is inescapable.
+This but for test was another way of identifying the factual criterion that was applied by the Council as the basis for their discrimination, but it is not one that I find helpful.
+It is better simply to ask what were the facts that the discriminator considered to be determinative when making the relevant decision.
+Lord Ackner, concurring, remarked at pp. 769 770: There might have been many reasons which had persuaded the council to adopt this policy.
+The Court of Appeal have inferred that the councils reason for giving free swimming to those of pensionable age was to give benefits to those whose resources would be likely to have been reduced by retirement: per Sir Nicolas Browne Wilkinson V. C. [1990] 1 Q.B. 61, 73D. I am quite prepared to make a similar assumption, but the councils motive for this discrimination is nothing to the point: see the decision of this House in Reg. vs Birmingham City Council, Ex parte Equal Opportunities Commission [1989] AC 1155.
+Lord Griffiths, giving the first of the minority opinion, took a different view.
+He said at p. 768: The question in this case is did the council refuse to give free swimming to the plaintiff because he was a man, to which I would answer, no, they refused because he was not an old age pensioner and therefore could presumably afford to pay 75p to swim.
+In a lengthy opinion Lord Lowry concurred with Lord Griffiths.
+The essence of
+his reasoning appears in the following passage at pp. 775 776: section 1(1)(a) refers to the activities of the discriminator: the words on the ground of his sex provide the link between the alleged discriminator and his less favourable treatment of another.
+They introduce a subjective element into the analysis and pose here the question Was the sex of the appellant a consideration in the councils decision? Putting it another way, a ground is a reason, in ordinary speech, for which a person takes a certain course.
+He knows what he is doing and why he has decided to do it.
+In the context of section 1(1)(a) the discriminator knows that he is treating the victim less favourably and he also knows the ground on which he is doing so.
+In no case are the discriminators thought processes immaterial.
+The contrast between the reasoning of the majority and of the minority in this case is, I believe, clear.
+I find the reasoning of the majority compelling.
+Whether there has been discrimination on the ground of sex or race depends upon whether sex or race was the criterion applied as the basis for discrimination.
+The motive for discriminating according to that criterion is not relevant.
+The observations of Lord Nicholls in Nagarajan v London Regional Transport [2000] 1 AC 501 and Chief Constable of West Yorkshire Police v Khan [2001] 1 WLR 1947, cited by Lord Hope at paragraphs 193 and 194 of his judgment, throw no doubt on these principles.
+Those observations address the situation where the factual criteria which influenced the discriminator to act as he did are not plain.
+In those circumstances it is necessary to explore the mental processes of the discriminator in order to discover what facts led him to discriminate.
+This can be illustrated by a simple example.
+A fat black man goes into a shop to make a purchase.
+The shop keeper says I do not serve people like you.
+To appraise his conduct it is necessary to know what was the fact that determined his refusal.
+Was it the fact that the man was fat or the fact that he was black? In the former case the ground of his refusal was not racial; in the latter it was.
+The reason why the particular fact triggered his reaction is not relevant to the question of the ground upon which he discriminated.
+In Nagarajan, Lord Nicholls approved the reasoning in both the Birmingham City Council case and the Eastleigh Borough Council case.
+At p. 511 he identified two separate questions.
+The first was the question of the factual basis of the discrimination.
+Was it because of race or was it because of lack of qualification? He then pointed out that there was a second and different question.
+If the discriminator discriminated on the ground of race, what was his motive for so doing? That question was irrelevant.
+When, at para 29 in Khan, Lord Nicholls spoke of a subjective test he was speaking of the exercise of determining the facts that operated on the mind of the discriminator, not his motive for discriminating.
+The subjective test, described by Lord Nicholls, is only necessary as a seminal step where there is doubt as to the factual criteria that have caused the discriminator to discriminate.
+There is no need for that step in this case, for the factual criteria that governed the refusal to admit M to JFS are clear.
+The JFS Admissions Policy
+The admissions policy published by JFS for the 2007/8 academic year began as follows: 1.1 It is JFS (the School) policy to admit up to the standard admissions number children who are recognised as being Jewish by the Office of the Chief Rabbi of the United Hebrew Congregation of the Commonwealth (OCR) or who have already enrolled upon or who have undertaken, with the consent of their parents, to follow any course of conversion to Judaism under the approval of the OCR.
+The passage that I have placed in italics was introduced in the 2007/8 year for the first time.
+No candidate has yet satisfied that criterion, and for present purposes it can be disregarded.
+In recent years there have been more applicants for entry to JFS who were recognised as Jewish by the OCR than there were places in the school.
+The admissions policy, somewhat confusingly, describes this as a situation where the school is oversubscribed.
+Further criteria are laid down for establishing priority in this situation.
+Here also there has recently been a significant change.
+Children in care and children with a sibling in the school were and are given priority; the change comes at the next stage.
+Up to the 2007/8 year priority was next given to applicants who had attended a Jewish primary school.
+This has now been changed so that these are pro rated with children who have attended a non Jewish primary school.
+The former criterion would have been likely to favour Jewish children who were being brought up in the Jewish faith.
+We were not told the reason for this change, and it has no direct bearing on the issues raised by this appeal.
+The criteria whose application debarred M from entry to JFS are readily identified.
+They are the criteria recognised by the OCR as conferring the status of a Jew.
+The child will be a Jew if at the time of his birth his mother was a Jew.
+His mother will be a Jew if her mother was a Jew or if she has converted to Judaism in a manner that satisfies the requirements of the Orthodox religion.
+M does not satisfy those criteria because of his matrilineal descent.
+His mother was not born of a Jewish mother and had not at the time of his birth complied with the requirements for conversion, as laid down by the OCR.
+Accordingly M does not satisfy the Orthodox test of Jewish status.
+Are the grounds racial?
+In answering this question it is important to distinguish between two different, albeit not wholly independent, considerations.
+The first is the reason or motive that leads the OCR to impose these criteria.
+The second is the question of whether or not the criteria are characteristics of race.
+The reason why the OCR has imposed the criteria is that the OCR believes that these are the criteria of Jewish status under Jewish religious law, established at and recognised from the time of Moses.
+This is not the end of the enquiry.
+The critical question is whether these requirements of Jewish law are racial, as defined by section 3 of the 1976 Act.
+Do the characteristics define those who have them by reference to colour, race, nationality or ethnic or national origins?
+The JFS case
+I shall summarise the case advanced by Lord Pannick QC for JFS in my own words.
+There exists a Jewish ethnic group.
+Discrimination on the ground of membership of this group is racial discrimination.
+The criteria of membership of this group are those identified by Lord Fraser of Tullybelton in Mandla v Dowell Lee [1983] 2 AC 548.
+In that case a declaration was sought that refusing admission to a school of a Sikh wearing a turban was indirect racial discrimination.
+The critical question was whether Sikhs comprised a racial group for the purposes of the 1976 Act.
+It was common ground that they were not a group defined by reference to colour, race, nationality or national origins.
+It was contended, however, that they were a group defined by ethnic origins.
+In considering the meaning of this phrase, Lord Fraser at pp 561 562 referred to a meaning of ethnic given by the Supplement to the Oxford English Dictionary (1972): pertaining to or having common racial, cultural, religious, or linguistic characteristics, esp. designating a racial or other group within a larger system.
+His comments in relation to this definition have been set out in full by Lord Mance at paragraph 83 of his judgment and as Lord Mance remarked they merit reading in full.
+It suffices, however, to cite the passage at p. 562 where Lord Fraser set out the seven characteristics, some of which he held would be shared by, and would be the touchstone of, members of an ethnic group: The conditions which appear to me to be essential are these: (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive; (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance.
+In addition two essential characteristics the following characteristics are, in my opinion, relevant; (3) either a common geographical origin, those to or descent from a small number of common ancestors; (4) a common language, not necessarily peculiar to the group; (5) a common literature peculiar to the group; (6) a common religion different from that of neighbouring groups or from the general community surrounding it; (7) being a minority or being an oppressed or a dominant group within a larger community, for example a conquered people (say, the inhabitants of England shortly after the Norman conquest) and their conquerors might both be ethnic groups.
+A group defined by reference to enough of these characteristics would be capable of including converts, for example, persons who marry into the group, and of excluding apostates.
+Provided a person who joins the group feels himself or herself to be a member of it, and is accepted by other members, then he is, for the purposes of the Act, a member.
+The Orthodox test of who is a Jew focuses on matrilineal descent.
+Discrimination on the basis of descent simpliciter is not necessarily discrimination on racial grounds.
+To discriminate against someone because he is not the son of a peer, or the son of a member of the SOGAT printing union, is not racial discrimination.
+Under the Orthodox test the Jewish woman at the head of the maternal line may be a convert of any nationality and from any ethnic background.
+Furthermore, because the Orthodox test focuses exclusively on the female line, any Jewish national or ethnic blood can become diluted, generation after generation, by the blood of fathers who have no Jewish characteristics of any kind.
+This is likely to happen if a Jewish woman marries out of and abandons the Jewish faith.
+It is possible today to identify two different cohorts, one by the Mandla criteria and one by the Orthodox criteria.
+The cohort identified by the Mandla criteria forms the Jewish ethnic group.
+They no longer have a common geographical origin or descent from a small number of common ancestors, but they share what Lord Fraser regarded as the essentials, a long shared history, of which the group is conscious as distinguishing it from other groups and the memory of which it keeps alive and a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance.
+The man in the street would recognise a member of this group as a Jew, and discrimination on the ground of membership of the group as racial discrimination.
+The Mandla group will include many who are in the cohort identified by the Orthodox criteria, for many of them will satisfy the matrilineal test.
+But there will be some who do not.
+So far as the cohort identified by the Orthodox test is concerned, many of these will also fall within the Mandla group.
+But there will be some, indeed many, who do not.
+Most of these will be descendants from Jewish women who married out of and abandoned the Jewish faith.
+They will not satisfy the two vital criteria identified by Lord Fraser.
+Indeed, they may be unaware of the genetic link that renders them Jewish according to the Orthodox test.
+Thus, in Lord Pannicks submissions the Orthodox test is not one that necessarily identifies members of the Jewish ethnic group.
+It is a test founded on religious dogma and discrimination on the basis of that test is religious discrimination, not racial discrimination.
+Discussion
+Initially I found Lord Pannicks argument persuasive, but on reflection I have concluded that it is fallacious.
+The fallacy lies in treating current membership of a Mandla ethnic group as the exclusive ground of racial discrimination.
+It ignores the fact that the definition of racial grounds in section 3 of the 1976 Act includes ethnic or national origins (my emphasis).
+Origins require one to focus on descent.
+Lord Pannick is correct to submit that descent simpliciter is not a ground of racial discrimination.
+It will only be such a ground if the descent in question is one which traces racial or ethnic origin.
+This leads me to a further argument advanced on behalf of JFS, which found favour with Munby J and is accepted by Lord Hope.
+This is that the matrilineal test is a religious test and that discrimination on the basis of that test is religious, not racial.
+This argument falls into two parts: (i) the matrilineal test is a test laid down by Jewish religious law; (ii) the matrilineal test is not a test of ethnic origin or ethnic status but a test of religious origin and religious status.
+The first part of this argument focuses, as has Lord Hope, on the reason why the matrilineal test is applied.
+The reason is that the JFS and the OCR apply the test for determining who is a Jew laid down by Orthodox Jewish religious law.
+What subjectively motivates them is compliance with religious law, not the ethnicity of the candidates who wish to enter the school.
+My reaction to this argument will already be clear.
+It is invalid because it focuses on a matter that is irrelevant the motive of the discriminator for applying the discriminatory criteria.
+A person who discriminates on the ground of race, as defined by the Act, cannot pray in aid the fact that the ground of discrimination is one mandated by his religion.
+The second argument requires more detailed analysis.
+It is that the criteria applied by the matrilineal test are religious criteria.
+They identify the religious status of the woman at the head of the maternal line and the religious status of the child at the end of the line.
+They have nothing to do with ethnicity.
+Lord Hope suggests that the validity of this argument can be demonstrated by contrasting the position of a person descended from a woman converted a century ago in an Orthodox synagogue with the position of a person descended from a woman converted a century ago in a non Orthodox synagogue.
+JFS would recognise the former as having Jewish status, but not the latter but the discrimination would result from the application of religious criteria.
+This example illustrates the fact that today, although not a century ago, in the very small number of cases where the question of whether someone is Jewish depends upon conversion, there is a possibility that different denominations will, as a result of differences between the criteria that they require for conversion, differentiate between them.
+If so, identifiable sub groups of Jews may develop, distinguished by religious criteria.
+This does not, however, help to determine whether the sub groups are sub groups of those who share the Jewish religion or sub groups of those who share Jewish ethnicity, or indeed both.
+Conversion has, for millennia, been accepted by all Jews as one of the ways in which a person can become a Jew, and the evidence that we have seen does not suggest that different tests of conversion have been applied until recent times.
+One of the difficulties in this case lies in distinguishing between religious and ethnic status.
+One of the criteria of ethnicity identified by Lord Fraser is a shared religion.
+In the case of Jews, this is the dominant criterion.
+In their case it is almost impossible to distinguish between ethnic status and religious status.
+The two are virtually co extensive.
+A woman who converts to Judaism thereby acquires both Jewish religious status and Jewish ethnic status.
+In the Chief Rabbis paper about conversion that I quoted at the beginning of this judgment he says: What is conversion? People often refer to the case of Ruth the Moabite, whose story is told with such beauty in the book that bears her name.
+It is from Ruths reply to her mother in law Naomi that the basic principles of conversion are derived.
+She said: Where you go, I will go.
+Where you stay, I will stay.
+Your people will be my people, and your God my God.
+That last sentence a mere four words in Hebrew defines the dual nature of conversion to this day.
+The first element is an identification with the Jewish people and its fate (Your people will be my people).
+The second is the embrace of a religious destiny, the covenant between Israel and God and its commands (Your God will be my God).
+I also found helpful in this context a passage in the response to a request for information from the Treasury Solicitor by Rabbi Dr Tony Bayfield, the head of the movement for Reform Judaism.
+It is headed Background Information and I do not believe it to be controversial: I believe that you are correct in your understanding of the OCRs criteria for determining whether a child is Jewish.
+This definition is, in essence, shared by the entire Jewish world both in Britain and globally.
+There are nuances the most significant of which is that the Liberal Movement (Liberal Judaism) in Britain regards as Jewish a child either of whose parents is Jewish (Liberal Judaism represents about 8% of synagogue affiliations; the other 92% of affiliations are to groupings which follow the tradition of the maternal line).
+However, all Jewish institutions worldwide as far as I know would say that Jewish identity is determined by either descent or conversion.
+There is a verse in the Book of Deuteronomy (Ch 29 v14) which describes the covenant between God and the Jewish people made at Sinai as being made both with those who stood there [at the foot of Sinai on] that day and also with those who were not there that day.
+Tradition defines those who were not there as descendants and converts.
+Conversion has been a feature of Jewish life for thousands of years.
+It has been most prolific when Jews have lived in tolerant, open societies and least prolific when Jews have been persecuted and state law has prohibited conversion to Judaism.
+But it has always taken place and means that Jews exhibit a range of facial features any visit to Israel will reveal Jews of different skin colours and appearance.
+Jews are not a race within any accepted or acceptable definition of the word.
+The phrase ethnic group is sometimes suggested but since ethnic can mean either cultural or racial or a mixture of the two, it is not very helpful.
+The best definition or description that I know is that Jews are a people bound together by ties of history and culture.
+Which brings us back to the verse from Deuteronomy.
+Jews are a people defined by the Sinai myth (not a pejorative term) of descent, of a continuous chain made up of descendants and converts, the latter becoming parts of the chain, indistinguishable from those who are Jewish by descent, inheriting the history, the culture (at core a religious culture) and at once becoming part of it.
+So, the OCRs definition of Jewish status is, in its essence, universal descent or conversion.
+This passage demonstrates a number of matters.
+First that the test of descent is not restricted to Orthodox Jewry but is a universal test applied by those who consider themselves to be Jews.
+Secondly that, whatever their racial, national and ethnic background, conversion unquestionably brings the convert within the Mandla definition of Jewish ethnicity.
+She becomes a member of the Jewish people.
+See also the comparison made by the Chief Rabbi between conversion and changing nationality in my earlier quotation.
+Thirdly the passage demonstrates that the religious test of matrilineal descent does not apply an idiosyncratic criterion that has no connection to race.
+It is a test which focuses on the race or ethnicity of the woman from whom the individual is descended.
+Where a Jew is descended by the maternal line from a woman who has converted to Judaism, the matrilineal link is with an ethnic Jew.
+There is this further important point.
+Focusing on conversion ignores the fact that the matrilineal test is not restricted to descent from Jews by conversion.
+The Jews to whom Moses spoke at Mount Sinai would have shared all seven of the characteristics of ethnic identity itemised by Lord Fraser in Mandla.
+The passage in Deuteronomy to which Jews look as the basis of the matrilineal test plainly focuses on race.
+Many Jews are highly conscious of their particular geographical and national roots.
+We had evidence of Cohens who trace their ancestry back to the servants at the Temple and who, for that reason, are prohibited from marrying a convert.
+For these reasons it is plain that the relevant characteristics of the relative to whom the maternal line leads are not simply religious.
+The origin to which the line leads can be racial and is, in any event, ethnic.
+Thus we are not here dealing with descent from a peer, or from a member of SOGAT, but a woman whose race, possibly, and her ethnicity, certainly, as well as her religion, are Jewish.
+David Frei, the Registrar of the London Beth Din, states in his witness statement that matrilineal descent is a criterion of Jewish identity, that being Jewish is a matter of religious status under Jewish religious law and that in orthodoxy, Jewish status is solely and irreducibly a religious issue.
+I take these statements to mean that the test of Jewish status is a test laid down exclusively by religion.
+It would not be right to read them as meaning that the only thing that matrilineal descent does is to identify religious status, whether of the ancestor at the head of the line or of the descendant at the other.
+This would not be consistent with the first element of the dual nature of conversion, as described by the Chief Rabbi.
+Nor would it be consistent with the fact that the matrilineal test embraces racial origin.
+To the Jew the matrilineal descendant is a member of the Jewish family and a member of the Jewish religion.
+The two are inextricably intertwined.
+The descendant will not necessarily be a member of a Mandla Jewish ethnic group; that is the group that has the essential criteria identified by Lord Fraser.
+He may, indeed, have none of the seven criteria in the list.
+The gentile in the street would not identify such a person as a Jew.
+Equally, he would not identify such a person as a member of the Jewish religion.
+Membership of a religion or faith normally indicates some degree of conscious affiliation with the religion or faith on the part of the member.
+The question of the status of the matrilineal descendant may thus depend upon whether one is applying the subjective viewpoint of a Jew or the objective Mandla test.
+But one thing is clear about the matrilineal test; it is a test of ethnic origin.
+By definition, discrimination that is based upon that test is discrimination on racial grounds under the Act.
+Lord Pannick is correct to say that it is possible to identify two different cohorts, or groups, with an overlapping membership, those who are descended by the maternal line from a Jew, and those who are currently members of the Jewish ethnic group.
+Discrimination against a person on the grounds that he or she is, or is not, a member of either group is racial discrimination.
+JFS discriminates in its admission requirements on the sole basis of genetic descent by the maternal line from a woman who is Jewish, in the Mandla as well as the religious sense.
+I can see no escape from the conclusion that this is direct racial discrimination.
+The consequences of the majority decision.
+The website of the JFS states that Whilst two thirds or more of our students have attended Jewish primary schools, a significant number of our year 7 intake has not attended Jewish schools and some enter the school with little or no Jewish education.
+Many come from families who are totally committed to Judaism and Israel; others are unaware of Jewish belief and practice.
+Initially this gave me the impression that successful candidates for entry to JFS included a significant number who had no connection with Judaism other than a matrilineal link with a Jewish woman, so that they fell outside the Mandla ethnic Jewish group.
+On reflection I found this an unlikely scenario.
+Any parents who apply to send their children to JFS relying on matrilineal Jewish descent must, at least, have an awareness of that link with Judaism.
+Evidence from the JFS suggests rather more than this.
+The schools information sheet which is sent to prospective teaching staff states: The modern JFS serves almost the whole breadth of the Anglo Jewish community in Greater London.
+About 85% of its students come from Barnet, Harrow, Brent and Hertsmereour students come from the widest possible range of social, economic and religious backgrounds.
+Our parents represent a very broad range of society.
+They all, however, share two things in common; a strong sense of Jewish identity and, in almost all cases, a keen sense of ambition for their children (emphasis added).
+This suggests that those who decide to send their children to JFS satisfy the Mandla criteria for belonging to an ethnic group, even though some of them do not attend a synagogue.
+They live in the same part of London, they are conscious of the wifes Jewish descent, and they have a strong sense of Jewish identity.
+This is likely to include an appreciation of Jewish history and culture.
+If this is correct, then the reality is that the JFS, in common with other Jewish faith schools, is in practice discriminating in favour of a sub group of Mandla ethnic Jews, who also satisfy the matrilineal requirement.
+The fact that the JFS conditions of admission would give precedence to candidates who satisfy the descent requirement but do not satisfy the Mandla test of Jewish ethnicity is of no practical significance.
+This appeal has been concerned with what has, in practice, been only the threshold test for admission to the JFS; matrilineal descent.
+For at least the last ten years the JFS has been oversubscribed with candidates for admission who satisfy this test.
+The problem has been how to choose between them.
+The evidence does not suggest that anyone has challenged the matrilineal test in principle.
+It is, after all, a test that has general acceptance as the criterion of being a Jew.
+Apart from Ms challenge, evidence has been given of two others, but each of these was a challenge on the ground of a failure to recognise the mothers conversion, not a challenge against the admission criteria themselves.
+Concern has been expressed that the majority decision will compel Jewish faith schools to admit children whom the Jewish religion does not recognise as being Jewish, that is children who are not descended from Jews by the maternal line.
+It is not clear that this is so.
+As a result of the decision of the Court of Appeal the JFS has published a new admission policy for admission in September 2010.
+This applies a test of religious practice, including synagogue attendance, Jewish education and/or family communal activity.
+As matrilineal descent or conversion is the requirement for membership of the Jewish faith according to the law of that faith, those who satisfy a practice test are likely to satisfy this requirement.
+Thus, instead of applying the matrilineal descent test by way of direct discrimination, the school will be applying a test that will indirectly discriminate in favour of those who satisfy the matrilineal descent test.
+It is not clear that the school will now be faced with applications from those who do not satisfy the test.
+Indirect discrimination
+Having decided that there has been in this case direct racial discrimination, it would be possible to go on to consider the hypothetical question of whether, if JFSs admissions policy had constituted indirect discrimination, it would have been justifiable.
+I do not propose to embark on that exercise, which would involve, among other considerations, an analysis of the policy underlying the exception made for faith schools in relation to religious discrimination by section 50 of the Equality Act 2006.
+I have not found it necessary to consider the provisions of that Act, for they have no bearing on the issue of direct racial discrimination.
+For the reasons that I have given I would dismiss the substantive appeal.
+The United Synagogue has appealed against the order for Costs made by the Court of Appeal.
+I concur in the basis upon which Lord Hope has held that this appeal should be allowed.
+Submissions in writing as to the appropriate order in respect of the costs of both appeals to the Supreme Court should be submitted within 14 days.
+LADY HALE
+No one in this case is accusing JFS (as the Jews Free School is now named) or the Office of the Chief Rabbi of discrimination on grounds of race as such.
+Any suggestion or implication that they are racist in the popular sense of that term can be dismissed.
+However, the Race Relations Act 1976 caters also for discrimination on grounds of colour, nationality or ethnic or national origins: see s 3(1).
+This case is concerned with discrimination on account of ethnic origins.
+And the main issue is what that means specifically, do the criteria used by JFS to select pupils for the school treat people differently because of their ethnic origins?
+My answer to that question is the same as that given by Lord Phillips, Lord Mance, Lord Kerr and Lord Clarke and for the same reasons.
+That we have each written separate opinions underlines the fact that we have each reached the same conclusion through a process of independent research and reasoning.
+It is only because the debate before us and between us has called in question some fundamental principles of discrimination law that I feel it necessary to underline them yet again.
+First, the Race Relations Act 1976 creates two different statutory torts, direct and indirect discrimination.
+It also creates two different forms of indirect discrimination, the original form provided for in section 1(1)(b) and the later form derived from the European Directive (2000/43 EC), provided for in section 1(1A).
+The later form applies to the discrimination prohibited by section 17, in admission to educational establishments, which is the context here: see s 1(1B)(b).
+If the later form applies, the original form does not: see s 1(1C).
+The basic difference between direct and indirect discrimination is plain: see Mummery LJ in R (Elias) v Secretary of State for Defence [2006] EWCA 1293, [2006] 1 WLR 3213, para 119.
+The rule against direct discrimination aims to achieve formal equality of treatment: there must be no less favourable treatment between otherwise similarly situated people on grounds of colour, race, nationality or ethnic or national origins.
+Indirect discrimination looks beyond formal equality towards a more substantive equality of results: criteria which appear neutral on their face may have a disproportionately adverse impact upon people of a particular colour, race, nationality or ethnic or national origins.
+Direct and indirect discrimination are mutually exclusive.
+You cannot have both at once.
+As Mummery LJ explained in Elias, at para 117, The conditions of liability, the available defences to liability and the available defences to remedies differ.
+The main difference between them is that direct discrimination cannot be justified.
+Indirect discrimination can be justified if it is a proportionate means of achieving a legitimate aim.
+But it is significant that section 57(3) provides that, in respect of the earlier form of indirect discrimination under section 1(1)(b), no award of damages shall be made if the respondent proves that the requirement or condition in question was not applied with the intention of treating the claimant unfavourably on racial grounds.
+We are concerned with the later form of indirect discrimination, under section 1(1A), to which section 57(3) does not apply, but the fact that this exception to the available remedies was made suggests that Parliament did not consider that an intention to discriminate on racial grounds was a necessary component of either direct or indirect discrimination.
+One can act in a discriminatory manner without meaning to do so or realising that one is.
+Long standing authority at the highest level confirms this important principle.
+The leading case on direct discrimination is R v Birmingham City Council, ex p Equal Opportunities Commission [1989] 1 AC 1155.
+So far as I am aware, it has never previously been suggested that it set the law on the wrong track: quite the reverse.
+As is well known, there were more grammar school places for boys than for girls in Birmingham with the result that girls had to do better than boys in the entrance examination in order to secure a place.
+The council did not mean to discriminate.
+It bore the girls no ill will.
+It had simply failed to correct a historical imbalance in the places available.
+It was nevertheless guilty of direct discrimination on grounds of sex.
+Lord Goff of Chieveley said this, at p 1194A: There is discrimination under the statute if there is less favourable treatment on the ground of sex, in other words if the relevant girl or girls would have received the same treatment as the boys but for their sex.
+The intention or motive of the defendant to discriminate, although it may be relevant so far as remedies are concerned . is not a necessary condition of liability; it is perfectly possible to envisage cases where the defendant had no such motive, and yet did in fact discriminate on the ground of sex.
+Indeed, . if the councils submission were correct it would be a good defence for an employer to show that he discriminated against women not because he intended to do so but (for example) because of customer preference, or to save money, or even to avoid controversy.
+In the present case, whatever may have been the intention or motive of the council, nevertheless it is because of their sex that the girls in question receive less favourable treatment than the boys, and so are the subject of discrimination under the Act of 1975.
+He went on to point out that this was well established in a long line of authority, citing Jenkins v Kingsgate (Clothing Productions) Ltd [1981] 1 WLR 1485, 1494, per Browne Wilkinson J; R v Secretary of State for Education and Science, Ex parte Keating (1985) 84 LGR 469, 475, per Taylor J; and Ministry of Defence v Jeremiah [1980] QB 87, 98, per Lord Denning MR.
+The but for test was endorsed again by the House in the rather more controversial case of James v Eastleigh Borough Council [1990] 2 AC 751.
+Again, the facts are well known.
+A husband and wife, both aged 61, went to their local swimming pool.
+The husband was charged 75 pence and the wife was let in free.
+Once again the council had the best of motives.
+People who had reached pensionable age were let in free.
+But pensionable age directly discriminated between men and women on grounds of their sex.
+It followed that the swimming pool admission charges did so too.
+As Lord Bridge of Harwich said, at pp 765 6, the purity of the discriminators subjective motive, intention or reason for discriminating cannot save the criterion applied from the objective taint of discrimination on the ground of sex.
+Lord Ackner was to the same effect, at p 769: The policy itself was crystal clear if you were a male you had, vis vis a female, a five year handicap.
+The reason why this policy was adopted can in no way affect or alter the fact that the council had decided to implement and had implemented a policy by virtue of which men were to be treated less favourably than women, and were to be so treated on the ground of, i.e. because of, their sex.
+Lord Goff of Chieveley amplified what he had said in Birmingham, at p 774: Whether or not the treatment is less favourable in the relevant sense, i.e. on the ground of sex, may derive either from the application of a gender based criterion to the complainant, or from selection by the defendant of the complainant because of his or her sex; but, in either event, it is not saved from constituting unlawful discrimination by the fact that the defendant acted from a benign motive.
+However, in the majority of cases, I doubt if it is necessary to focus upon the intention or motive of the defendant in this way.
+This is because, as I see it, cases of direct discrimination under section 1(1)(a) can be considered by asking the simple question: would the complainant have received the same treatment from the defendant but for his or her sex.
+Although this decision was clearly on all fours with the Birmingham case, it was reached only by a majority.
+Lord Lowry preferred a subjective rather than an objective approach to on grounds of sex.
+Lord Griffiths, interestingly, pointed out that to impose a retirement age of 60 on women and 65 on men was discriminatory on the grounds of sex.
+It would result in women being less well off than men at 60.
+But what I do not accept is that an attempt to redress the result of that unfair act of discrimination by offering free facilities to those disadvantaged by the earlier act of discrimination is, itself, necessarily discriminatory on grounds of sex (p 768).
+Lord Griffiths was there challenging the concept of symmetrical formal equality: that it is just as discriminatory to treat a man less favourably than a woman, even though the object is to redress the impact of previous less favourable treatment of a woman.
+But there can be no doubt that the original sex and race discrimination legislation intended, through the mechanism of direct discrimination, to achieve symmetrical formal equality between men and women, black and white, rather than to redress any historic disadvantage of one against the other.
+Attempts to do so, for example by quotas or all women shortlists, are still highly controversial.
+Despite this difference of opinion, the decisions in Birmingham and James have been applied time and time again.
+They were affirmed by the House of Lords in the victimisation case of Nagarajan v London Regional Transport [2000] 1 AC 501.
+As Lord Nicholls of Birkenhead said, at p 511: Racial discrimination is not negatived by the discriminators motive or intention or reason or purpose (the words are interchangeable in this context) in treating another person less favourably on racial grounds.
+In particular, if the reason why the alleged discriminator rejected the complainants job application was racial, it matters not that his intention may have been benign.
+However, Lord Nicholls had earlier pointed out that there are in truth two different sorts of why question, one relevant and one irrelevant.
+The irrelevant one is the discriminators motive, intention, reason or purpose.
+The relevant one is what caused him to act as he did.
+In some cases, this is absolutely plain.
+The facts are not in dispute.
+The girls in Birmingham were denied grammar school places, when the boys with the same marks got them, simply because they were girls.
+The husband in James was charged admission to the pool, when his wife was not, simply because he was a man.
+This is what Lord Goff was referring to as the application of a gender based criterion.
+But, as Lord Goff pointed out, there are also cases where a choice has been made because of the applicants sex or race.
+As Lord Nicholls put it in Nagarajan, in every case it is necessary to inquire why the complainant received less favourable treatment.
+This is the crucial question.
+Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator (pp 510 511).
+In James, Lord Bridge was not to be taken as saying that the discriminators state of mind is irrelevant when answering the crucial, anterior question: why did the complainant receive less favourable treatment?
+The distinction between the two types of why question is plain enough: one is what caused the treatment in question and one is its motive or purpose.
+The former is important and the latter is not.
+But the difference between the two types of anterior enquiry, into what caused the treatment in question, is also plain.
+It is that which is also explained by Lord Phillips, Lord Kerr and Lord Clarke.
+There are obvious cases, where there is no dispute at all about why the complainant received the less favourable treatment.
+The criterion applied was not in doubt.
+If it was based on a prohibited ground, that is the end of the matter.
+There are other cases in which the ostensible criterion is something else usually, in job applications, that elusive quality known as merit.
+But nevertheless the discriminator may consciously or unconsciously be making his selections on the basis of race or sex.
+He may not realise that he is doing so, but that is what he is in fact doing.
+As Lord Nicholls went on to say in Nagarajan, An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicants race.
+After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did .
+Conduct of this nature by an employer, when the inference is legitimately drawn, falls squarely within the language of section 1(1)(a) (p 512).
+This case is not in that category.
+There is absolutely no doubt about why the school acted as it did.
+We do not have to ask whether they were consciously or unconsciously treating some people who saw themselves as Jewish less favourably than others.
+Everything was totally conscious and totally transparent.
+M was rejected because he was not considered to be Jewish according to the criteria adopted by the Office of the Chief Rabbi.
+We do not need to look into the mind of the Chief Rabbi to know why he acted as he did.
+If the criterion he adopted was, as in Birmingham or James, in reality ethnicity based, it matters not whether he was adopting it because of a sincerely held religious belief.
+No one doubts that he is honestly and sincerely trying to do what he believes that his religion demands of him.
+But that is his motive for applying the criterion which he applies and that is irrelevant.
+The question is whether his criterion is ethnically based.
+So at long last I arrive at what, in my view, is the only question in this case.
+Is the criterion adopted by the Chief Rabbi, and thus without question by the school, based upon the childs ethnic origins? In my view, it clearly is.
+M was rejected because of his mothers ethnic origins, which were Italian and Roman Catholic.
+The fact that the Office of the Chief Rabbi would have over looked his mothers Italian origins, had she converted to Judaism in a procedure which they would recognise, makes no difference to this fundamental fact.
+M was rejected, not because of who he is, but because of who his mother is.
+That in itself is not enough.
+If M had been rejected because his mother shopped in Waitrose rather than Marks and Spencer, that would not have been because of her or his ethnicity.
+But it was because his mother was not descended in the matrilineal line from the original Jewish people that he was rejected.
+This was because of his lack of descent from a particular ethnic group.
+In this respect, there can be no doubt that his ethnic origins were different from those of the pupils who were admitted.
+It was not because of his religious beliefs.
+The school was completely indifferent to these.
+They admit pupils who practise all denominations of Judaism, or none at all, or even other religions entirely, as long as they are halachically Jewish, descended from the original Jewish people in the matrilineal line.
+There is no doubt that the Jewish people are an ethnic group within the meaning of the Race Relations Act 1976.
+No Parliament, passing legislation to protect against racial discrimination in the second half of the twentieth century, could possibly have failed to protect the Jewish people, who had suffered so unspeakably before, during and after the Holocaust.
+If Parliament had adopted a different model of protection, we would not be here today.
+Parliament might have adopted a model of substantive equality, allowing distinctions which brought historically disadvantaged groups up to the level of historically advantaged groups.
+But it did not do so.
+It adopted a model of formal equality, which allows only carefully defined distinctions and otherwise expects symmetry.
+A man must be treated as favourably as a woman, an Anglo Saxon as favourably as an African Caribbean, a non Jew as favourably as a Jew.
+Any differentiation between them, even if it is to redress historic disadvantage, must be authorised by legislation.
+This means that it is just as unlawful to treat one person more favourably on the ground of his ethnic origin as it is to treat another person less favourably.
+There can be no doubt that, if an employer were to take exactly the same criterion as that used by the Office of the Chief Rabbi and refuse to employ a person because the Chief Rabbi would regard him as halachically Jewish, the employer would be treating that person less favourably on grounds of his ethnic origin.
+As Lord Kerr explains, there can be no logical distinction between treating a person less favourably because he does have a particular ethnic origin and treating him less favourably because he does not.
+Some may feel that discrimination law should modify its rigid adherence to formal symmetry and recognise a greater range of justified departures than it does at present.
+There may or may not be a good case for allowing Jewish schools to adopt criteria which they believe to be required by religious law even if these are ethnically based.
+As far as we know, no other faith schools in this country adopt descent based criteria for admission.
+Other religions allow infants to be admitted as a result of their parents decision.
+But they do not apply an ethnic criterion to those parents.
+The Christian Church will admit children regardless of who their parents are.
+Yet the Jewish law has enabled the Jewish people and the Jewish religion to survive throughout centuries of discrimination and persecution.
+The world would undoubtedly be a poorer place if they had not.
+Perhaps they should be allowed to continue to follow that law.
+But if such allowance is to be made, it should be made by Parliament and not by the courts departing from the long established principles of the anti discrimination legislation.
+The vehicle exists in the Equality Bill, which completed its committee stage in the House of Commons in the 2008 09 session and will be carried over into the 2009 10 session.
+The arguments for and against such a departure from the general principles of the legislation could then be thoroughly debated.
+The precise scope of any exception could also be explored.
+We know from the helpful intervention of the Board of Deputies of British Jews that the Masorti, Reform and Liberal denominations of Judaism have welcomed the result, if not the reasoning, of the decision of the Court of Appeal and would not wish for the restoration of the previous admission criteria.
+That is a debate which should not be resolved in court but by Parliament.
+We must not allow our reluctance to enter into that debate, or to be seen to be imposing our will upon a well meaning religious body, to distort the well settled principles of our discrimination law.
+That is to allow the result to dictate the reasoning.
+This was, in my view, a clear case of direct discrimination on grounds of ethnic origin.
+It follows that, however justifiable it might have been, however benign the motives of the people involved, the law admits of no defence.
+It also follows that it cannot be a case of indirect discrimination.
+There is indeed some difficulty in fitting this case into the model of indirect discrimination.
+The discriminator has to apply to the complainant a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as [the complainant].
+But if the criterion we are talking about is being halachically Jewish, then it is not applied equally between those who are and those who are not.
+And there is no question of those who are not being at a particular disadvantage when compared with others persons in the sense that more of the others can comply than they can.
+None of the non halachically Jewish can comply, while all of the halachically Jewish can do so.
+There is an exact correspondence between compliance and the criterion, just as there was in the Birmingham and James cases.
+This too suggests, although it does not prove, that the criterion is itself ethnically based.
+If not, I would agree with Lord Mance on this issue.
+I have tried only to explain how the long established principles of discrimination law apply in this case.
+In agreement with the more ample reasoning of Lord Phillips, Lord Mance, Lord Kerr and Lord Clarke on the facts of the case, I would dismiss the appeal of JFS on the main issue.
+On the United Synagogues costs appeal, I agree with the reasoning and conclusions of Lord Hope.
+LORD MANCE
+Introduction
+Two issues arise: whether the admissions policy adopted by JFS for 2007/08 involved direct discrimination, and, if not, whether it involved indirect discrimination, in each case against M, represented by his respondent father, E. M applied for admission to year 7 at JFS commencing in September 2007.
+The school was over subscribed and by letter dated 13 April 2007 it refused, because the school has not received evidence of [Ms] Jewish status, to consider M for a place unless and until all those applicants whose Jewish status has been confirmed have been offered places.
+An appeal to the independent admission appeal panel for JFS failed on 11 June 2007.
+The schools admissions policy (determined by its governing body pursuant to the School Standards and Framework Act 1998, ss.88 and 88C) treated an applicant in Ms position less favourably than other persons.
+The policy was to admit children recognised as being Jewish by the Office of the Chief Rabbi of the United Hebrew Congregation of the Commonwealth (OCR) or who have already enrolled upon or who have undertaken, with the consent of their parents, to follow any course of conversion to Judaism under the approval of the OCR.
+In the event of oversubscription, only children satisfying this test were to be considered for admission, in the following order: looked after children, those with one or more siblings attending JFS and then other applicants (the last category on a pro rata basis within each ability band according to the numbers of applicants attending respectively Jewish and non Jewish primary schools).
+The OCR, applying the Orthodox Jewish test, recognises as Jewish children who can show an Orthodox Jewish mother or ancestress in the matrilineal line.
+The mother or matrilineal ancestress can be Orthodox Jewish by birth or by conversion prior to the birth of her relevant child.
+The respondent is unable to show such descent, because his mother was a non Jewish Italian by birth and converted to Judaism before Ms birth not in the Orthodox tradition, but with the assistance of a non Orthodox Rabbi.
+The respondent and his father, with whom he now lives, practise Masorti Judaism, and M is recognised as Jewish by Reform and Masorti synagogues. (Before the late eighteenth century, the Court was told, these distinctions in Jewish observance did not exist.)
+The first question is whether the respondents less favourable treatment was on the grounds of his ethnic origins within s.1(1)(a) of the Race Relations Act 1976.
+JFS supported by the United Synagogue and the Secretary of State for Children, Schools and Families as interveners submit that M was treated as he was not on ethnic, but on purely religious grounds, while E and M, supported by the Equality and Human Rights Commission and the British Humanist Association as interveners submit that, although the schools motivation was and is religious, the treatment derived from a test which was, or was substantially, based on inherently ethnic grounds.
+JFS is a school designated as having a religious (Jewish) character under the School Standards and Framework Act 1998, s.69(3), and is accordingly exempted by the Equality Act 2006, s.50(1) from the prohibition against discrimination on the grounds of religion or belief which would otherwise apply under ss.45 and 47 of that Act.
+But this exemption does not affect the pre existing prohibition of discrimination on the grounds of ethnic origin, under the 1976 Act.
+The difficulty of the present case is that the word Jewish may refer to a people, race or ethnic group and/or to membership of a religion.
+In the case of JFS, JFS submits that it refers only to the latter.
+Munby J found that common to all Jewish denominations is a belief that being Jewish is a matter of status, defined in terms of descent or conversion, and not a matter of creed or religious observance (para. 21).
+However, JFS exists as an Orthodox Jewish institution, and (while Judaism is not a proselytising religion those who are not Jews can still earn salvation) Education about the Jewish faith is considered by Orthodox Jews to be a fundamental religious obligation on all Jews .
+An understanding and appreciation of the Jewish faith takes many years .
+This is one of the primary purposes of schools such as JFS, which seek to help those who are Jewish (or who are undergoing conversion) understand, learn about and follow their faith (the words come from a statement of Dayan Gelley dated 26 February 2008 approved by the Chief Rabbi, and were quoted by Munby J in para. 13).
+JFSs Instrument of Government, with which its governing body, when determining its admissions policy, was obliged to comply under Education Act 2002 s.21(4), records the schools ethos as being to preserve and develop its religious character in accordance with the principles of Orthodox Judaism, under the guidance of the Chief Rabbi of the United Hebrew Congregations .
+JFS has further explained in answers dated 17 December 2007 (to questions put by Ms solicitors in a letter dated 17 August 2007 written pursuant to the judicial review protocol and s.65(2) of the Race Relations Act) that JFSs admission criteria seek to maintain the schools religious ethos.
+In his statement dated 8 February 2008, para. 27, the chair of JFSs admissions committee described the admissions policy as pursuing a legitimate aim because it is developing the religious character of JFS in accordance with the principles of Orthodox Judaism.
+The same aim was reflected in para. 14 of a determination dated 27 November 2007, made by an Adjudicator appointed under the School Standards and Framework Act 1998 to consider Es objection to JFSs admissions policy.
+The Adjudicator added the further explanation that the legitimate aim being pursued is seeking to ensure that those children who are Jewish (applying Orthodox Jewish principles) are admitted to the school.
+While many who are eligible for and obtain admission to JFS as Orthodox Jews do not practise and may profess no or a different religious faith, the schools aim is to inculcate the ethos and, so far as possible, encourage the practice and observance of Orthodox Judaism in and by all who attend.
+In formulating the schools admissions policy, it was also the governing bodys duty under s.84(3) of that Act to act in accordance with the relevant provisions of the code for school admissions prepared under s.84(1) by the Secretary of State.
+The Secretary of States Schools Admissions Code for 2003 stated that schools like JFS designated as having a religious character might give preference in their admission arrangements to members of a particular faith or denomination , providing this does not conflict with other legislation, such as race relations legislation (para. 3.9), and that, where they do, their admissions arrangements should make clear whether a statement of religious affiliation or commitment would be sufficient, or whether it is to be tested and if so how and what if any references from a religious leader will be required.
+The Code for 2007 permits priority in case of over subscription to children who are members of, or who practise, their faith or denomination (para. 2.41) and states that It is primarily for the relevant faith provider group or religious authority to decide how membership or practice is to be demonstrated (para 2.43).
+Quite apart from the fact that they are subject to the application of the Race Relations Act 1976, the references to membership in the Codes do not specifically address descent based membership which may exist in the eyes of the faith provider or religious authority, while not doing so in the eyes of the child or his or her parents.
+Direct discrimination
+Direct discrimination can arise in one of two ways: because a decision or action was taken on a ground which was, however worthy or benign the motive, inherently racial within the meaning of s.1(1)(a), or because it was taken or undertaken for a reason which was subjectively racial: R v Birmingham City Council, ex p Equal Opportunities Commission [1989] AC 1155, 1194C D per Lord Goff of Chieveley, James v Eastleigh Borough Council [1990] 2 AC 751, 772B G per Lord Goff, and Nagarajan v London Regional Transport [2000] 1 AC 501, 511A per Lord Nicholls of Birkenhead and 520H 521B per Lord Steyn.
+In the Birmingham City Council case, girls were required to achieve a higher standard than boys for grammar school entry because of a disparity in the number of grammar school places available for boys and girls.
+Whatever may have been the intention or motive of the council, nevertheless it [was] because of their sex that the girls in question receive[d] less favourable treatment than the boys, and so [were] the subject of discrimination: per Lord Goff at p.1194C D.
+It was for the council to find some way of avoiding this, e.g. by balancing the places available.
+In James the motive for adopting as the test for free entry to the swimming pool to people who had reached state pension age was no doubt benign (it was probably because they were perceived as more likely to be needy).
+But being of pensionable age is not to be equated with ceasing to work or being in receipt of a pension, and the difference between the ages (65 and 60 respectively) at which men and women became of pensionable age made the test inherently discriminatory on the ground of sex.
+In Nagarajan at p.511A Lord Nicholls noted that Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator, while Lord Steyn at pp.520H 521B approved the statements in the Birmingham City Council and James cases.
+The allegation in the present case is that a decision or action was taken on inherently ethnic grounds within s.1(1)(a), although the schools subjective motivation was its purely religious convictions.
+I appreciate that even the first part of this allegation involves what may be described as a subjective element a question of fact in Lord Nicholls words in Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48, [2001] 1 WLR 1947, para, 29 in so far as it requires an answer to the question: why in fact was M refused a place? But there is here no room for doubt about the answer.
+He was refused a place by reason of the application of the admissions policy set out in para 74 above.
+With that answer, the next, relevant question is simply whether that policy, religiously motivated as it was, involved grounds for admission or refusal of admission which were in their nature inherently ethnic.
+Lord Pannick submits that, taking the test of an ethnic group recognised by the House of Lords in Mandla v Dowell Lee [1983] 2 AC 548, Jews constitute an ethnic group, but a group which embraces, on the one hand, a wide spectrum of Jewish observance (including that practised by the respondent) and excludes, on the other hand, many individuals who would, on Orthodox Jewish principles, be regarded as Jewish (e.g. a lapsed Jew who had converted to Catholicism or an atheist with a matrilineal Orthodox Jewish ancestress).
+There is thus no complete identity between a Jew in the sense suggested by that test and an Orthodox Jew according to Orthodox Jewish principles.
+He relies upon this as reinforcing his submission that JFSs admissions policy is based, and based solely, on religious grounds.
+I do not, however, consider that this submission resolves the issue.
+First, Mandla was a case of alleged indirect discrimination under s.1(1)(b) of the Act, which addresses differential treatment between persons of different racial groups.
+The test under s.1(1)(a) is whether a person has treated another person less favourably on racial grounds, defined by s.3 as meaning on any of the following grounds, namely colour, race, nationality or ethnic or national origins.
+This test is not expressed to be limited by reference to a need to identify a difference in treatment of persons currently members of different ethnic groups.
+Further, subsequent to the enactment by the European Community of Council Directive 2000/43/EC of 29th June 2000, which addresses both direct and indirect discrimination without using the concept of racial group in either connection, and since the consequent introduction of s.1(1A) of the Race Relations Act 1976 which equally omits any such concept, it seems to me inappropriate to read s.1(1)(a) as importing any such concept.
+All that is required is discrimination on grounds of a persons ethnic origins.
+A second, point, based on the international legal background and of possible relevance to the construction of s.1(1)(a), derives from the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), in force since 1969, to which the United Kingdom is party and to which Directive 2000/43/EC recites that it was intended to give effect.
+Article 1(1) of CERD defines racial discrimination to mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
+The reference to descent (although not explicitly repeated after the general prohibition on racial discrimination in article 5) is, on its face, very pertinent in the present case.
+However, it is suggested that, having been introduced on a proposal by India, the word descent is limited to caste, but India itself disputes this, and it has been forcefully suggested that the background to its introduction indicates that it was not concerned with caste at all: Caste based Discrimination in International Human Rights Law, David Keane (Brunel University, Ashgate Publishing Ltd., 2007, chap. 5).
+Nevertheless, the Committee established to monitor implementation of CERD under article 8 has itself treated descent as including caste in its General Recommendation XXIX A/57/18 (2002) 111, where it recommended, in para 1, that states take steps to identify those descent based communities under their jurisdiction who suffer from discrimination, especially on the basis of caste and analogous systems of inherited status.
+Whether or not descent embraces caste, the concepts of inherited status and a descent based community both appear wide enough to cover the present situation.
+That in turn tends to argue for a wide understanding of the concept of discrimination on grounds of ethnic origins, although the point is a marginal one.
+Thirdly, and in any event, the Mandla test is broad, flexible and judgmental.
+It was adopted in order to embrace a group such as the Sikhs, of whom it could not be said that they were a different race in any narrow sense.
+There is some irony in the fact that, prior to the decision of the House in Mandla, there would have been little doubt that a narrow test based on birth or descent would have been regarded as required in order for there to be discrimination on the ground of ethnic origins.
+That was the gist of the judgments in the early case of Ealing London Borough Council v Race Relations Board [1972] AC 342.
+Unlike Mandla, the Ealing case was a case of alleged direct discrimination under s.1(1)(a), and in it statements were made to the effect that discrimination on account of race, or ethnic or national origins involved consideration of a persons antecedents (per Viscount Dilhorne at p.359E), that Origin, in its ordinary sense, signifies a source, someone or something from which someone or something has descended (per Lord Simon of Glaisdale at p.363H) and that national origins normally indicated a connection arising because the parents or one of the parents are or is identified by descent with the nation in question, but it may also sometimes arise because the parents have made their home among the people in question (per Lord Cross of Chelsea at p.365E F).
+The Court of Appeal in Mandla [1983] QB 1 picked up this approach in relation to indirect discrimination.
+It identified an ethnic group as one with common ancestral origins, however remote (see per Lord Denning MR at p.10A B and p.11B, expressly instancing Jews as an ethnic group, and per Kerr LJ at p.22B E), and on that basis excluded Sikhs on the ground that they constituted essentially a religious and cultural group.
+The House disagreed and developed the wider test, but there may still, in my view, be discrimination on grounds of ethnic origin in the narrower and more traditional sense, even under s.1(1)(b), let alone under the differently worded s.1(1)(a).
+The following passage in which Lord Fraser of Tullybelton developed the test in Mandla [1983] 2 AC 548, 561 563 is also worth quoting in full: I turn, therefore, to the third and wider meaning which is given in the Supplement to the Oxford English Dictionary (1972).
+It is as follows: 'pertaining to or having common racial, cultural, religious, or linguistic characteristics, esp. designating a racial or other group within a larger system . ' Mr Irvine, for the appellants, while not accepting the third (1972) meaning as directly applicable for the present purpose, relied on it to this extent, that it introduces a reference to cultural and other characteristics, and is not limited to racial characteristics.
+The 1972 meaning is, in my opinion, too loose and vague to be accepted as it stands.
+It is capable of being read as implying that any one of the adjectives, 'racial, cultural, religious or linguistic', would be enough to constitute an ethnic group.
+That cannot be the sense in which 'ethnic' is used in the Act of 1976, as that Act is not concerned at all with discrimination on religious grounds.
+Similarly, it cannot have been used to mean simply any 'racial or other group'.
+If that were the meaning of 'ethnic', it would add nothing to the word group, and would lead to a result which would be unacceptably wide.
+But in seeking for the true meaning of 'ethnic' in the statute, we are not tied to the precise definition in any dictionary.
+The value of the 1972 definition is, in my view, that it shows that ethnic has come to be commonly used in a sense appreciably wider than the strictly racial or biological.
+That appears to me to be consistent with the ordinary experience of those who read newspapers at the present day.
+In my opinion, the word 'ethnic' still retains a racial flavour but it is used nowadays in an extended sense to include other characteristics which may be commonly thought of as being associated with common racial origin.
+For a group to constitute an ethnic group in the sense of the Act of 1976, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics.
+Some of these characteristics are essential; others are not essential but one or more of them will commonly be found and will help to distinguish the group from the surrounding community.
+The conditions which appear to me to be essential are these: (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance.
+In addition to those two essential characteristics the following characteristics are, in my opinion, relevant; (3) either a common geographical origin, or descent from a small number of common ancestors (4) a common language, not necessarily peculiar to the group (5) a common literature peculiar to the group (6) a common religion different from that of neighbouring groups or from the general community surrounding it (7) being a minority or being an oppressed or a dominant group within a larger community, for example a conquered people (say, the inhabitants of England shortly after the Norman conquest) and their conquerors might both be ethnic groups.
+A group defined by reference to enough of these characteristics would be capable of including converts, for example, persons who marry into the group, and of excluding apostates.
+Provided a person who joins the group feels himself or herself to be a member of it, and is accepted by other members, then he is, for the purposes of the Act, a member.
+That appears to be consistent with the words at the end of section 3(1) 'references to a person's racial group refer to any racial group into which he falls.' In my opinion, it is possible for a person to fall into a particular racial group either by birth or by adherence, and it makes no difference, so far as the Act of 1976 is concerned, by which route he finds his way into the group.
+This view does not involve creating any inconsistency between direct discrimination under paragraph (a) and indirect discrimination under paragraph (b).
+A person may treat another relatively unfavourably 'on racial grounds' because he regards that other as being of a particular race, or belonging to a particular racial group, even if his belief is, from a scientific point of view, completely erroneous.
+This passage makes clear that Lord Fraser was not excluding the relevance of descent from a small number of common ancestors.
+It was one among a number of factors which included, he considered essentially, a long shared history distinguishing a group from other factors and a shared cultural tradition, but which could also include a common geographical origin, language and/or religion and a status as a minority group.
+The whole passage emphasises the flexibility of the test adopted, and it is consistent with this that its application should depend on the context.
+A fourth, important point appears from the final sentence in the passage quoted from Lord Frasers speech: A person may treat another relatively unfavourably 'on racial grounds' because he regards that other as being of a particular race, or belonging to a particular racial group, even if his belief is, from a scientific point of view, completely erroneous.
+Lord Fraser probably had in mind a situation such as that where A, who dislikes Sikhs, discriminates against B in the (in fact erroneous) belief that B is a Sikh.
+Whether the victim actually has the sexual orientation or racial origins on the ground of which he or she is treated less favourably is irrelevant: English v Thomas Sanderson Blinds Ltd. [2008] EWCA Civ 1421; [2009] ICR 543 (where the majority also held it to be irrelevant whether the discriminator believed the victim to have, or whether the victim thought that the discriminator believed the victim to have, the relevant sexual orientation on the ground of which he was harassed).
+If A, applying his own view of the relative significance of the various factors mentioned by the House in Mandla, identifies a particular group of people as an ethnic group and discriminates against them on that ground that would, in my view (and as Lord Pannick accepted, with the proviso that there would have to be some basis in the Mandla criteria) be embraced by s.1(1)(a) of the Act.
+Any definition of an ethnic group applying the Mandla criteria is on this basis also flexible, whether the definition is undertaken for religious, charitable or educational purposes or, as happened only too terribly in Nazi Europe, for entirely malign purposes.
+In the present case, many of Lord Frasers factors could be seen as pointing without more to a conclusion that Orthodox Judaism should be regarded as a separate ethnic group or sub group including the sharing of a long history distinguishing themselves from other groups, a shared cultural tradition, a common religion and a separate status within any wider Jewish community.
+Others, such as a common geographical origin and a common language, they share with that wider community.
+Munby Js reasons for rejecting any suggestion that Orthodox Jews could be regarded as a separate ethnic group or sub group were that there was no evidence that they had separate ethnic origins from other, or most other, Jews.
+That may be said to focus purely on ethnic origins in a way which the Mandla test was intended to discourage.
+But, assuming that Orthodox Jews are not a separate ethnic group or sub group for the purposes of indirect discrimination (the relevant subsection for that purpose being now s.1(1A), rather than s.1(1)(b)), I consider that the Orthodox Jewish test of descent in the matrilineal line must still be regarded as a test based on ethnic origins, for the purposes of direct discrimination under s.1(1)(a) of the Act.
+On the evidence, it is at its core a test by which Orthodox Judaism identifies those to be regarded today as the descendants of a particular people, enlarged from time to time by the assimilation of converts, that is the Jewish people whose ancestor was the patriarch Jacob (Israel) and with whom the covenant of Mount Sinai was made through Moses upon the Exodus from Egypt.
+That the Jewish people was from its outset also defined by its religion does not lead to a different conclusion.
+A test of membership of a religion that focuses on descent from a particular people is a test based on ethnic origins.
+Whether matrilineal descent was originally chosen because it was an easy and secure way of identifying ancestry or because some other special significance was attached to womens role is not relevant.
+Other tests identifying a people by drawing on descent or ancestry can of course exist, for example, a test based on patrilineal origins, or on the origins of both parents.
+Some other Jewish denominations, the Court was told, have other tests, e.g. looking, or looking also, at the patrilineal line.
+But all such tests look, in one way or another, at ethnic origins.
+They merely take different views as to the form of descent or birth link by reference to which a persons origins in a particular (here biblical) people can be defined.
+I find instructive in this connection and generally the Background Information provided by Rabbi Dr Tony Bayfield which Lord Phillips quotes in paragraph 40.
+If a school admissions policy identifying Jews by descent is inadmissible, this will be the case in relation to any denomination of Jewish school applying such a policy, however the relevant descent is identified.
+This case cannot therefore be viewed as a mere disagreement between different Jewish denominations, for example about the criteria for conversion.
+It turns, more fundamentally, on whether it is permissible for any school to treat one child less favourably than another because the child does not have whatever ancestry is required, in the schools view, to make the child Jewish.
+Fifthly, there is, not surprisingly in the circumstances, also material tending positively to confirm that there is in the eyes of JFS no distinction between Jewishness in the religious sense and Jewishness on account of ethnic origins.
+The Agreed Statement of Facts records that M was refused admission for the year 2007 8, on the ground that he was not recognised as being Jewish by the Office of the Chief Rabbi .
+The same answer (that this child cannot be recognised as Jewish) was given by the OCR in relation to the child of the marriage of a Cohen (member of the Jewish priestly class) and an English woman who had undertaken conversion with an Orthodox Jewish Beth Din in Israel, on the ground that she had intended to marry her future husband at the time of her conversion, contrary to a prohibition on the marriage of Cohens with converts, with the consequence that her conversion could not have been sincere and was accordingly invalid in the eyes of the OCR.
+By their letter dated 17 August 2007 Ms solicitors asked JFS, with reference to the time when children applied and/or when a decision on admission was taken, how many children were Jewish on account of their race and/or ethnic origins and how many were not.
+The schools answer given through its solicitors on 17 December 2007 was that Those children confirmed as Halakhically Jewish were treated as Jewish by the school and those not so confirmed were treated as not Jewish.
+M set out this answer in his further response dated 19 December 2007 to the appellants notice of acknowledgement of service, in support of a plea that the appellants now belatedly, but rightly, accept that Halakhical Jewish status is synonymous with membership of a racial group for the purposes of section 3 of the Act a plea to which there was no response before the matter came to court.
+Further, according to a statement quoted in the respondents case, which JFS has not challenged or controverted, the Chair of JFSs Governors responded to fears about the opening in future of new Jewish schools (including or consisting of non Orthodox Jewish schools), by saying: If we are going to be able to maintain the three [existing Orthodox Jewish] schools, we are going to need to supply children out of thin air.
+The only way to fill all of those places would be to open the doors to children who are not Jewish by ethnicity or not at all.
+The inference is that the school recognises no distinction even today between Jewishness in a religious and in an ethnic sense.
+The one dictates the other.
+When Lord Pannick said on behalf of JFS that JFS does not dispute that there are thousands with Jewish ethnic claims in the Mandla sense who fail the test for a religious reason, that may be the effect of the Mandla test, applied objectively; if so, it is a conclusion about English law which no one could sensibly gainsay.
+But it does not follow that JFS or the Chief Rabbi themselves concur with or take the view of ethnicity which would follow from applying the Mandla test and the passages which I have quoted indicate that they do not (quite apart from the fact that the Mandla test was not directed to the present issue of less favourable treatment on the ground of ethnic origins).
+Apart from descent a person may become an Orthodox Jew by conversion.
+Conversion, in accordance with the principles of Orthodox Judaism, is recognised by Orthodox Judaism as making a person an Orthodox Jew.
+Some of the greatest figures in Jewish history have been converts, starting with Ruth the Moabite, great grandmother of King David, and Onkelos, Rabbi Akiva and other sages.
+From conversion, a convert is treated as an Orthodox Jew, and so too is any child of a female convert born after the completion of the mothers conversion (although some distinction exists between converts and other Orthodox Jews: witness the prohibition on the former marrying a Cohen, to which reference is made above).
+The Chief Rabbi has in 2005 compared conversion with acquiring a changed, foreign identity, while adding that the analogy is imperfect: Converting to Judaism is a serious undertaking, because Judaism is not a mere creed.
+It involves a distinctive, detailed way of life.
+When people ask me why conversion to Judaism takes so long, I ask them to consider other cases of changed identity.
+How long does it take for a Briton to become an Italian, not just legally but linguistically, culturally, behaviourally? It takes time.
+The analogy is imperfect, but it helps to explain the most puzzling aspect of conversion today the sometimes different standards between rabbinical courts in Israel and Britain.
+Several decades ago an Israeli Chief Rabbi argued that Israeli rabbinical courts should be more lenient than their counterparts in the Diaspora.
+His reasons were technical, but they make sense.
+It is easier to learn Italian if you are living in Italy.
+In Israel, many aspects of Jewish identity are reinforced by the surrounding culture.
+Its language is the language of the Bible.
+Its landscape is saturated by Jewish history.
+Shabbat is the day of rest.
+The calendar is Jewish.
+The reason for Ms ineligibility can be said to be that his mother converted to Judaism under a procedure and principles other than those accepted by Orthodox Jews.
+However, M remains at a disadvantage because of his descent, and, speaking generally, the test for admission of any child to JFS is for practical purposes one of descent.
+The possibility of a child applying to JFS being him or herself a convert, or even in the course of converting, appears negligible.
+JFS in its answers dated 17 December 2007 believed there never to have been any such child in the three years preceding the answers.
+Further, discrimination may be on an ethnic ground, even though this is not the sole ground for the decision, so long as an ethnic ground was a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor: Nagarajan, per Lord Nicholls at pp.512H 512B.
+As Miss Rose QC for E pointed out, an organisation which admitted all men but only women graduates would be engaged in direct discrimination on the grounds of sex.
+Similar reasoning would apply here to any suggestion that the possibility of conversion eliminated any possibility of direct discrimination on ethnic grounds.
+Finally, I also consider it to be consistent with the underlying policy of s.1(1)(a) of the Act that it should apply in the present circumstances.
+The policy is that individuals should be treated as individuals, and not assumed to be like other members of a group: R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2005] 2 AC 1, paras 82 and 90, per Baroness Hale of Richmond and R (Gillan) v Commissioner of Police for the Metropolis [2006] 2 AC 307, paras. 44 and 90 per Lords Hope of Craighead and Brown of Eaton under Heywood.
+To treat individual applicants to a school less favourably than others, because of the happenstance of their respective ancestries, is not to treat them as individuals, but as members in a group defined in a manner unrelated to their individual attributes.
+JFS, supported on this point by the British Board of Deputies, argue that respect for religious freedom under article 9(1) of the European Convention on Human Rights and the importance attaching to the autonomous existence of religious communities (emphasised for example in Lffelmann v Austria (Application no. 42967/98, 12 March 2009, para 47) militate in favour of a conclusion upholding JFSs admissions policy.
+But freedom to manifest one's religion or beliefs is, under article 9(2) of the Convention, subject to such limitations as are prescribed by law and are necessary in a democratic society for the protection of the rights and freedoms of others.
+Under the United Nations Convention on the Rights of the Child 1989, article 3, it is the best interests of the child which the United Kingdom is obliged to treat as a primary consideration.
+Under Protocol 1, article 2 to the European Convention on Human Rights, it is the right of parents to ensure education and teaching in conformity with their own religions and philosophical convictions that the state must ensure in the exercise of any functions which it assumes in relation to education and to teaching. (I note in parenthesis that this has, since the hearing before the Supreme Court, been emphasised by the second section of the European Court of Human Rights in its judgment in Affaire Lautsi c. Italie (Requte no. 30814/06, 3 November 2009, paras. 47(b) and (c)).
+I express no further view on the reasoning or decision in that case, which may well go to the Grand Chamber.
+To treat as determinative the view of others, which an applicant may not share, that a child is not Jewish by reason of his ancestry is to give effect not to the individuality or interests of the applicant, but to the viewpoint, religiously and deeply held though it be, of the school applying the less favourable treatment.
+That does not seem to me either consistent with the scheme or appropriate in the context of legislation designed to protect individuals from discrimination.
+I accept that parental responsibility and choice relating to a child can determine the extent to which children are treated as having certain attributes, e.g. membership of a particular religion in the case of Christian baptism.
+But neither parental birth nor the fact that a mother has not converted to Orthodox Judaism at a time prior to a childs birth can be regarded as within the concept of parental responsibility and choice.
+Emphasis was put in submissions on difficulties which Orthodox or indeed other Jewish schools face in adopting any admissions policy other than that based on Jewish status.
+It was not, and could not, be suggested that these present any absolute legal answer to Ms case, but rather that they should cause any court to think very hard about whether the legislation can really require the result for which E and M contend and which the Court of Appeal accepted.
+How far such difficulties exist is contentious.
+Just before the hearing in the Supreme Court, statements were tendered by two interveners, in the case of the British Board of Deputies a statement dated 15 October 2009 from its chief executive, Mr Jon Benjamin, and in the case of the United Synagogue a statement dated 18 October 2009 from its chief executive, Mr Jeremy Jacobs.
+These came too late for proper investigation or answer and their contents are in issue, though there is evidence of Orthodox Jewish schools which in addition to a test based on Orthodox Jewish descent also apply tests based on religious observance.
+What can be said is that, since the Court of Appeals judgment, JFS and other Orthodox Jewish schools have instituted admissions policies based, in one way or another, on religious observance, but they have done so very reluctantly, and submit that its introduction is inconsistent with such schools missions to all Orthodox Jews.
+However, as I have said, such considerations cannot be decisive either way.
+For the reasons I have given, the Court of Appeal in my view reached the correct conclusion, when it held that as a matter of law the admissions policy followed by JFS was inherently discriminatory, contrary to s.1(1)(a) of the 1976 Act, although the policy was adopted by the school for the most benign, religious motives.
+On that basis, the issue of indirect discrimination cannot arise.
+However, I will address some words to it.
+This must, necessarily, be on the hypothesis that a different answer is given on the issue of direct discrimination to that which I have given.
+Indirect discrimination
+The relevant statutory provision governing indirect discrimination is s.1(1A).
+This was introduced into the 1976 Act by the Race Relations Act 1976 (Amendment) Regulations (SI 2003/1626), in order to implement in Great Britain Council Directive 2000/43/EC of 29th June 2000 (which contains a number of references showing its intended application to education).
+Subsequent Regulations (SI 2008/3008) have added the presently immaterial words or would put in s.1(1A)(b).
+The first question arising under s.1(1A) is whether JFSs admissions policy involved a provision, criterion or practice which puts persons of the same race or ethnic origins at a particular disadvantage when compared with other persons.
+Lord Pannick submits not.
+He accepts that the policy had the effect of putting at a disadvantage applicants with no ethnic link with Judaism.
+But, in his submission, it did not discriminate against M, because both M and those eligible for admission had the same Jewish ethnic origin, and the distinction drawn between them by the policy was on the basis of their religious, not ethnic status.
+Here too, the Mandla test of ethnicity is relied upon to assimilate M and those eligible for admission.
+As I have pointed out, Mandla was decided under s.1(1)(b) of the Race Relations Act 1976.
+Since the introduction of s.1(1A) to give effect to Council Directive 2000/43/EC of 29th June 2000, Lord Pannick accepts that any allegation of indirect discrimination falls to be considered primarily (and in reality, despite s.1(1C), almost certainly only) under s.1(1A).
+Assuming, contrary to my view, that the Mandla test of ethnic grouping controls the question whether there has been direct discrimination on ethnic grounds within s.1(1)(a), I do not consider that it can do so under s.1(1A).
+I see no reason under Community law to suppose that the Directive is limited to discrimination against ethnic groups in the Mandla sense, and s.1(1A) should, so far as possible, be construed consistently with the Directive.
+The language of s.1(1A) is general (although in one respect, the effect if any of which I need not consider, it adopts less exhaustive terminology than s.1(1)(a) and (b), in so far as it omits express reference to colour and nationality).
+On any ordinary understanding, Ms ethnic origins differed from those of most Orthodox Jews, because he had a non Jewish Italian mother.
+As Munby J said (para. 34), M is in Es eyes, and doubtless in the eyes of many who would consider themselves Jews, of mixed Jewish and (through the maternal line) Italian ethnic origins.
+True, some Orthodox Jews become such by conversion rather than birth, and some children of non Jewish Italian mothers can be Orthodox Jews by virtue of their mothers conversion according to Orthodox Jewish principles before their birth.
+But, both in general terms and in the case of M in particular, his mothers non Jewish Italian birth and so his ethnic origins led to M being at a particular disadvantage when compared with persons recognised as Orthodox Jews by JFS and by Orthodox Jewish authorities.
+The next question is whether JFS has shown that the disadvantage at which M was put was a proportionate means of achieving a legitimate end.
+Munby J in para. 192 of his judgment summarised the aim or objective of JFS as spelled out in the materials before him (and indicated out in paragraph 76 above) as being: to educate those who, in the eyes of the [Office of the Chief Rabbi] are Jewish, irrespective of their religious beliefs, practices or observances, in a school whose culture and ethos is that of Orthodox Judaism.
+The Court of Appeals reasoning on indirect discrimination appears to have been influenced by this characterisation.
+The Court of Appeal thought, with some justification, that the aim or objective as so advanced was circular.
+Sedley LJ, in paras. 45 47, described the schools admissions criteria as explicitly related to ethnicity and as having an ethnic component in character and said that an aim of which the purpose or inevitable effect is to make and enforce distinctions based on race or ethnicity cannot be legitimate.
+That is no doubt so.
+But, on the evidence, the truth which Munby Js characterisation can be read as omitting or perhaps obscuring is that, in Orthodox Jewish belief, anyone who is regarded by Orthodox Judaism as a Jew by birth is also regarded as being under a religious duty to educate him or herself about and to observe the tenets of Orthodox Judaism: see the statement of Dayan Gelley dated 26 February 2008 referred to in paragraph 76 above, and also that of Registrar Frei of the London Beth Din dated 6 February 2008.
+JFSs mission was to encourage and assist children regarded by Orthodox Judaism as being Jews to do this as far as possible.
+For that reason, the admission to the school of a range of pupils, who are Orthodox Jewish in the schools eyes, but who do not actually practise Orthodox Judaism or necessarily any religion at all, was and would still be regarded as a very positive feature, even if their or their parents actual motivation for seeking their admission to the school were to have been its excellent academic record.
+On the basis of this explanation of the thinking underlying the schools policy, it is possible to identify a legitimate aim, founded in the schools Orthodox Jewish character and the religious convictions of those responsible for its admissions policy; and the circularity which the Court of Appeal thought existed no longer does.
+The question thus arises, which the Court of Appeal thought it unnecessary to address, whether JFS as the alleged discriminator can show the differential treatment to be a proportionate means of achieving a legitimate aim: s.1(1A)(c).
+JFS accepts that its admissions policy treated the schools religious aim as an over riding absolute.
+Prior to the Court of Appeals decision, it had not considered or sought to weigh the practical implications or effect of adopting either it or any alternative policy, though it was aware both that the school included many non observing pupils and that there were many ineligible pupils who were intensely religious.
+No information is in these circumstance available as to the extent to which children admitted to the school were or became interested in learning to observe Orthodox Judaism, or to which the schools policy excluded other children who would be deprived of Jewish based schooling which they were keen for religious reasons to pursue.
+Munby J recorded (para. 8) that until the 1940s over 97% of synagogue membership was of Orthodox (United Synagogue) synagogues, but that by 2000, according to a report A Community of Communities, published under the auspices of the Institute for Jewish Policy Research, current membership of Jews affiliated to a synagogue consisted of 60.7% Orthodox, 10.5% Strictly Orthodox (Haredi), 27.3% Progressive (Reform and |Liberal), and 1.5% Masorti (Conservative), while 30% of all Jews were not affiliated to any synagogue at all.
+There has been and is a paucity of available and accessible Jewish schools other than Orthodox Jewish schools it appears that 29 of the total of 36 Jewish schools in England are Orthodox Jewish and applied a similar admissions policy to JFSs.
+JFS also regarded as irrelevant when formulating the admissions policy whether it might lead to unhappiness in relations between adherents to different Jewish denominations.
+The standard set in s.1(1A)(c) is a high one, adopting the more exacting EC test of proportionality: R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213, para. 151, per Mummery LJ.
+The Directive also provides, in article 2(2)(b) that any indirectly discriminatory provision, criterion or practice is only justifiable if it is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, but it refers to the European Convention on Human Rights and the language used equates with the test of proportionality which appears in s.1(1A)(c) of the 1976 Act.
+An ex post facto justification for a measure which is prima facie indirectly discriminatory can prove difficult to show: Elias, para.129 per Mummery LJ.
+It is for the school to show, in the circumstances, that its aim or objective corresponds to a real need and that the means used are appropriate and necessary to achieving that aim, and any decision on these points must weigh the need against the seriousness of the detriment to the disadvantaged group: Elias, para. 151 per Mummery LJ.
+The interests of society must also be considered: Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167, para. 19, per Lord Bingham of Cornhill.
+In the case of JFS, as an educational establishment maintained by a local education authority, its general duty was supplemented by specific duties under s.71 of the 1976 Act, according to which it was incumbent on its governing body in carrying out its functions, [to] have due regard to the need (a) to eliminate unlawful racial discrimination; and (b) to promote equality of opportunity and good relations between persons of different racial groups.
+Munby J held that the school had, despite the good intentions and work which had gone into its race equality policy, failed to comply in full with s.71 of the 1976 Act.
+The schools race equality policy, which indicated that the school would disregard considerations based upon colour, disability, ethnic or racial origins, gender, marital status, nationality or religion except as provided for in the Schools authorised Admissions Policy, showed that it had in a general sense considered matters of racial discrimination.
+But it had not specifically considered either of the goals mentioned in s.71(1)(a) and (b) or, more particularly, specific ways in which these goals might be achieved (Munby J, para. 213).
+Nonetheless, Munby J considered that the schools policy satisfied the requirements of s.1(1A)(c), saying at paras. 199 202, first, that JFSs admissions policy was not, properly analysed, materially different from that which gives preference in admission to a Muslim school to those who were born Muslim or preference in admission to a Catholic school to those who have been baptised and, secondly, that some alternative admissions policy based on such factors as adherence or commitment to Judaism (even assuming that such a concept has any meaning for this purpose in Jewish religious law) would not be a means of achieving JFSs aims and objectives; on the contrary it would produce a different school ethos.
+JFS exists as a school for Orthodox Jews.
+If it is to remain a school for Orthodox Jews it must retain its existing admissions policy; if it does not, it will cease to be a school for Orthodox Jews.
+On that basis, Munby J held that the policy constituted a proportionate means of achieving a legitimate aim, and that the claim of indirect discrimination failed.
+Munby J also thought it quite idle to imagine that the fullest and most conscientious compliance with s.71 would have led to any difference either in the crucial part of JFSs admissions policy or in its application in Ms case (para. 214).
+On the evidence before the Court, and in the absence of any actual consideration or weighing of the need [to pursue the schools aim] against the seriousness of the detriment to the disadvantaged group (see Elias [2006] 1 WLR 3213, para 151), I find it impossible to reach the same conclusion.
+There is, as I have indicated, no information about the extent to which the school succeeds in its stated aim of inculcating Orthodox Judaism in the minds and habits not only of those who already practise it, but also of those pupils who gain admission as Orthodox Jews in the eyes of Orthodox Judaism.
+The latter may not on entry practise or have any interest in practising Orthodox Judaism.
+They or their parents may adhere in religious observance to a Jewish denomination other than the Orthodox Jewish and be concerned that their children receive a, rather than no, Jewish education; or they or their parents may be seeking entry for reasons associated with the schools acknowledged educational excellence, and may be themselves agnostic or atheist.
+The schools policy was formulated without considering the extent to which others professing the Jewish faith, but not in the Orthodox Jewish tradition, were separated by it from friends and from the general Jewish community by the schools admissions policy, or about the extent to which this might cause grief and bitterness in inter or intra community relations matters about which some evidence was tendered before the Court.
+It would, in parenthesis, also appear difficult to regard a school not considering such matters as complying with the School Admissions Code 2007, para. 2.48, which requires that admission authorities for faith schools should consider how their particular admission arrangements impact on the communities in which they are physically based and those faith communities which they serve.
+It was submitted that the school would become less diverse in a practising religious sense, if it admitted pupils only by reference to a test of Jewish religious observance.
+This could be so, but no consideration has been given to any possibility of ensuring continuing diversity on a structured basis, rather than simply excluding, by reference essentially to birth link criteria, all those not regarded by Orthodox Judaism as Orthodox Jews.
+Paragraph 1.4 of the schools existing admissions policy already provides that The School recruits from the whole range of ability, and this policy has the objective of securing a balanced, comprehensive, co educational intake.
+The schools Information Sheet for staff describes the modern JFS as serving almost the whole breadth of the Anglo Jewish community in Greater London and its admissions policy (not further detailed in this connection) as reflect[ing] positive selection to ensure a truly comprehensive ability intake.
+It continues: We aim to achieve a balanced intake across four ability bands.
+In addition to a thoroughly comprehensive spread of ability, our students come from the widest possible range of social, economic and religious backgrounds.
+On the information available, it is not shown that inability to select on the basis of birth link criteria will prevent the school from serving the wider community and achieving diversity in accordance with these stated aims.
+I would also not be as confident as Munby J was with regard to s.71.
+But, in any event, the test is not what the school would have done in the past if it had fully and properly considered its obligations under s.71.
+The test is whether objectively it can justify its present policy under s.1(1A)(c), once the test set by that subsection is fully and properly addressed.
+Munby Js comparison in para. 200 with the position of Catholic or Muslim children would, if exact, be no more than another way of stating the issue, but in reality it is not exact, at least if one takes the parental choice to baptise.
+His other reason echoes the schools case that its policy of giving preference to those regarded as Orthodox Jews by Orthodox Jews must, in case of over subscription, prevail over all other considerations, with which I have already dealt.
+It must, furthermore, be an exaggeration to say that the school would cease (or, presumably, with the introduction of its new policy after the Court of Appeals decision, has ceased) to be a school for Orthodox Jews (para. 214).
+If and when the number of places exceeds the number of those applying who are regarded by the school as Orthodox Jews, the school is anyway obliged under the legislation and paragraph 1.3 of its own admissions policy to admit other pupils.
+Until the matter came before the Adjudicator, Appendix A to its admissions policy in fact indicated that the remaining places would be filled according to the following criteria in this order: (1) looked after children, (2) children with one Jewish parent, (3) children with one or more Jewish grandparents and, finally, (4) all other applicants. (The Adjudicator by his Determination of 27 November 2007 held that criteria (2) and (3) involved indirect ethnic discrimination by reference to ancestry, which could not be justified by any presumption that children with one Jewish parent or one or more Jewish grandparents were more likely to be receptive or sympathetic to the schools Jewish Orthodox ethos than children of other parentage or grand parentage, and required the deletion of those two criteria on that basis.
+He rejected a suggestion that criteria (2) and (3) involved direct discrimination on the ground that they were based on religious grounds not racial grounds, despite the absence of any apparent basis in Orthodox Judaism for attaching any significance to fatherhood or grand parentage, except in the matrilineal line.
+Miss Rose QC for E submits, correctly in my view as I have already indicated, that the Adjudicator should logically have gone further by recognising criteria (2) and (3) as involving direct discrimination).
+In my view and (I emphasise) on the material before the Court, JFS has not and could not have justified its admissions policy.
+Accordingly, had the matter arisen for decision, I would have held that its admissions policy discriminated against M in a way which was not justified under s.1(1A), and was invalid accordingly.
+However, for reasons given earlier, I conclude that the policy was directly discriminatory, because it depended on birth link criteria which led to M being less favourably treated on ethnic grounds within s.1(1)(a) and 3(1) of the 1976 Act, and invalid on that basis.
+I would therefore dismiss the schools appeal.
+On the United Synagogues appeal in respect of costs, I agree with the reasoning and conclusions of Lord Hope.
+LORD KERR
+This case gives rise to perplexing issues of law.
+It involves an examination of the interface between religion and legal principle.
+It requires a close scrutiny of the statutory definition of racial discrimination.
+At its heart, however, lies the simple issue of a young boys desire to attend a particular school; his familys earnest wish that he be educated there; and the reasons that he was refused admission.
+That JFS is the school of choice for very many Jewish families is not in the least surprising.
+As well as achieving excellent academic results for its pupils, it promotes indeed embodies the values that most, if not all, practising Jews regard as central to their faith.
+It is therefore inevitably and regularly oversubscribed, that is to say, it attracts many more applicants for places than it can accommodate.
+The criteria for admission to the school are of intense interest to aspiring pupils and their parents.
+Those who devise and apply those criteria have a formidable, not to say daunting, responsibility.
+This situation is by no means unique.
+All over the United Kingdom and, no doubt, in many other parts of the world, every year, conscientious parents, anxious for their childrens continuing education at secondary level, pore over the entrance requirements for schools that they hope their sons and daughters will attend and strive to bring their childrens circumstances and in many instances, their own within the stipulated standards.
+Where JFS is unique, however, is in its imposition of a criterion that can only be achieved by an accident of birth or by conversion to the Orthodox Jewish faith.
+Apart from conversion, a child who wishes to be educated at JFS must be born of an Orthodox Jewish mother or have a female antecedent who is recognised as an Orthodox Jew by the Office of the Chief Rabbi (OCR).
+That condition of Orthodox Jewishness is normally acquired by the female by reason of the circumstances in which she herself was born; less commonly, it arises by her conversion to Judaism before the childs birth.
+In the latter case the circumstances of her conversion must be such as to satisfy the requirements of the OCR.
+Common to both situations, however, is the unalterable requirement that, at the moment of birth, the child must be a Jew as the Chief Rabbi, in his application of what he considers to be the requirements of Jewish law, defines that status.
+Central to the question of direct discrimination in this case is the breadth of meaning to be given to the phrase ethnic origins.
+The conventional meaning of origin is something from which anything arises or is derived.
+It also means ancestry, parentage, or extraction.
+Although ethnic is normally used as pertaining to or characteristic of a people or a group, clearly there can be mixed ethnic origins that do not fall neatly into one group or category.
+Thus, in this case, it is undeniable that M has mixed ethnic origins.
+He has derived these, as everyone derives their ethnicity, from his parents.
+At the moment of birth we are all endowed with characteristics that are as inalienable as they are inevitable.
+Our DNA is inescapable.
+Our parentage and the ancestry that it brings are likewise fixed and irreversible.
+These are part and parcel of our ethnic origins.
+M is not simply a Jew.
+His ethnic origins comprehend much more than his Jewishness.
+He is born of an Italian.
+He is, in the colloquial, half Italian.
+He would be recognised indeed, no doubt, claimed as such by his mothers family.
+He cannot disavow his mothers former Catholicism.
+That is as much part of his undeniable ethnic make up as is his fathers Masorti Jewishness and Englishness.
+M is, therefore, half English and half Italian; he is a Masorti Jew with an Italian mother who was once Catholic.
+All of these are aspects of his ethnic origins.
+And those origins are defined as much by what they do not contain as they are by what they include.
+What, of course, Ms ethnic origins do not and can never include is a matrilineal connection to Orthodox Jewry.
+That is an unchangeable aspect of his parentage, of his origins and of his ethnicity.
+He cannot be categorised as and can never claim to be born of an Orthodox Jewish mother as recognised by OCR.
+That this forms part of his ethnic origins can perhaps best be illustrated by comparing his situation with that of someone whose mother is recognised by OCR as Jewish.
+An assertion by such a person that this matrilineal feature formed part of his ethnic origins could surely not be challenged.
+Logically, therefore, the absence of such a feature from Ms heritage cannot be denied, and must be accepted, as a defining characteristic of his ethnicity.
+Direct discrimination
+The basic question that arises on the issue of direct discrimination can be simply stated.
+It is, Was M treated less favourably on racial grounds? Racial grounds being defined (in section 3 (1) of the Race Relations Act 1976) as including ethnic origins, and there being no dispute between the parties that he was treated less favourably than those who, by reason of their matrilineal connection to an Orthodox Jewish mother, were admitted to the school, the basic question can be refined to the following formulation, Was M refused admission to the school on grounds of his ethnic origins?
+It has been strongly asserted that the Chief Rabbi was not remotely interested in Ms ethnic origins for other than religious reasons.
+This is no doubt true, but the decision to refuse M entry to the school was unquestionably bound up with those origins.
+It was because of what was missing from Ms ethnic origins; because they did not include the indispensable matrilineal connection to Orthodox Judaism that the less favourable treatment occurred.
+Does this mean that he was discriminated against on ethnic grounds? Or does the fact that the refusal to admit him to the school was based on a decision on a religious issue remove the case from the sphere of racial discrimination altogether?
+These questions focus attention on the problematical issue of what is meant by discrimination on racial grounds.
+As Lord Hope has observed, the opinions in cases such as R v Birmingham City Council, Ex p Equal Opportunities Commission [1989] AC 1155 and James v Eastleigh Borough Council [1990] 2 AC 751 tended to dismiss as irrelevant any consideration of the subjective reasons for the alleged discriminator having acted as he did unless it was clear that the racial or sex discrimination was overt.
+A benign motivation on the part of the person alleged to have been guilty of discrimination did not divest the less favourable treatment of its discriminatory character if he was acting on prohibited grounds.
+Later cases have recognised that where the reasons for the less favourable treatment are not immediately apparent, an examination of why the discriminator acted as he did may be appropriate.
+In Nagarajan v London Transport [2000] 1 AC 501, 511A, Lord Nicholls of Birkenhead, having identified the crucial question as why did the complainant receive less favourable treatment, said this: Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator.
+It is, I believe, important to determine which mental processes Lord Nicholls had in mind in making this statement.
+It appears to me that he was referring to those mental processes that are engaged when the discriminator decides to treat an individual less favourably for a particular reason or on a particular basis.
+That reason or the basis for acting may be one that is consciously formed or it may operate on the discriminators subconscious.
+In my opinion Lord Nicholls was not referring to the mental processes involved in the alleged discriminator deciding to act as he did.
+This much, I believe, is clear from a later passage of his opinion, at p 511B where he said: The crucial question just mentioned is to be distinguished sharply from a second and different question: if the discriminator treated the complainant less favourably on racial grounds, why did he do so? The latter question is strictly beside the point when deciding whether an act of racial discrimination occurred.
+This latter passage points clearly to the need to recognise the distinction between, on the one hand, the grounds for the decision (what was the basis on which it was taken) and on the other, what motivated the decision maker to make that decision.
+The need for segregation of these two aspects, vital to a proper identification of the grounds on which the decision was made, is well illustrated, in my view, by the circumstances of this case.
+The school refused entry to M because an essential part of the required ethnic make up was missing in his case.
+The reason that they took the decision on those grounds was a religious one OCR had said that M was not a Jew.
+But the reason that he was not a Jew was because of his ethnic origins, or more pertinently, his lack of the requisite ethnic origins.
+The basis for the decision, therefore, or the grounds on which it was taken, was Ms lack of Jewishness.
+What motivated the school to approach the question of admission in this way was, no doubt, its desire to attract students who were recognised as Jewish by OCR and that may properly be characterised as a religious aspiration but I am firmly of the view that the basis that underlay it (in other words, the grounds on which it was taken) was that M did not have the necessary matrilineal connection in his ethnic origin.
+This conclusion appears to me to be inescapable from Lord Nicholls analysis of the two aspects of decision making and to chime well with a later passage in his speech where he said: Racial discrimination the is not negatived by discriminators motive or intention or reason or purpose (the words are interchangeable in this context) in treating another person less favourably on racial grounds.
+In particular, if the reason why the alleged discriminator rejected the complainants job application was racial, it matters not that his intention may have been benign.
+In the present case, the reason why the school refused M admission was, if not benign, at least perfectly understandable in the religious context.
+But that says nothing to the point.
+The decision was made on grounds which the 1976 Act has decreed are racial.
+The recognition of Jewishness a religious question?
+As Lord Brown has pointed out, all Jews define membership of their religion by reference to descent or conversion.
+It is therefore quite logical to describe the decision, taken as a matter of Jewish law, as to whether one is or is not a Jew, as a religious one.
+Descent is employed as a means of determining an essentially religious question.
+But, when the answer to that religious question has consequences in the civil law sphere, its legality falls to be examined.
+If the decision has consequences that are not permitted under the law, the fact that it was taken for a religious purpose will not save it from the condition of illegality.
+In this case the OCR decision that M was not a Jew had profound consequences for him since he was denied admission to an educational establishment that he wished to attend.
+The fact that the decision not to admit him was based on the determination of a religious issue cannot, of itself, insulate it from the charge of discrimination on racial grounds.
+Once it is recognised that Ms ethnic origins underpinned the conclusion on the religious issue, it becomes plain that it cannot be characterised as an exclusively religious question.
+The terminus for OCR was a decision on a matter of religion but the route to that terminus was one of ethnic origin.
+Ethnic groups
+It is unquestionably true that Jews, whether they be Orthodox, Masorti, Liberal or Progressive, constitute an ethnic group.
+It is also undoubtedly the case that M belongs to that ethnic group.
+He is an ethnic Jew.
+But, belonging to that group is not comprehensive of his ethnicity.
+As I have said (at 109 above) Ms ethnic origins extend well beyond the fact that he is a Jew.
+The circumstance that he is an ethnic Jew in the Mandla [Mandla v Dowell Lee [1983] 2 AC 548] sense does not assist, in my opinion, in determining whether he has been discriminated against on racial grounds.
+Although those who receive the more favourable treatment (in being admitted to the school) belong to the same racial or ethnic group as M, this does not, of itself, preclude a finding that he has been treated less favourably on account of his ethnic origins.
+This might be so if his ethnic origins were confined to his Jewishness.
+They are not.
+It is because of his lack of the requisite feature of Jewishness that he has received less favourable treatment.
+That perceived deficiency is as much part of his ethnic make up as is the fact that he is an ethnic Jew in the Mandla sense.
+Indirect discrimination
+Since I have reached the conclusion that this is a case of direct discrimination, it is unnecessary to say anything about the alternative case made on Ms behalf on indirect discrimination, particularly in light of Lord Mances discussion of that subject.
+I find myself in complete agreement with all that he has had to say on that issue and, incidentally, with all that he has had to say on the issue of direct discrimination.
+Conclusion
+One can have sympathy with the school authorities in their wish to pursue what must have seemed to them an entirely legitimate religious objective.
+It is plain that the Chief Rabbi and the governors of JFS are entirely free from any moral blame.
+That they have fallen foul of the 1976 Act does not involve any reprehensible conduct on their part for it is accepted on all sides that they acted on sincerely and conscientiously held beliefs.
+Their motives are unimpeachable.
+The breach of the legislation arises because of the breadth of its reach.
+The grounds on which the rejection of M was made may well be considered perfectly reasonable in the religious context but it is because they amount to ethnic grounds under the legislation that a finding against the school became, in my opinion, inescapable.
+I would dismiss the appeal.
+LORD CLARKE
+The division of opinion in this court and in the courts below demonstrates that this appeal raises issues which are difficult to resolve.
+The issues have been discussed in detail in all the above judgments.
+I have reached the same conclusion as Lord Phillips, Lady Hale, Lord Mance and Lord Kerr, essentially for the reasons they have given.
+Rather against my general principle, which is that there should be fewer judgments in the Supreme Court and not more, I add a judgment of my own in order to explain my own reasons for agreeing that the appeal should be dismissed.
+Direct discrimination
+The facts have been fully set out by others.
+I therefore refer only to those facts which seem to me to be critical.
+The policy of JFS, when oversubscribed, was to admit children who are recognised as being Jewish by the Office of the Chief Rabbi (OCR) or who have already enrolled upon or undertaken, with the consent of their parents, to follow a course of conversion to Orthodox Judaism under the approval of the OCR.
+As I understand it, nobody has ever been enrolled at JFS under the second head.
+Leaving adopted children on one side, children recognised by the OCR as being Orthodox Jewish are only those with a biological mother who is either Orthodox Jewish by birth or who has converted to Orthodox Judaism before the birth of the child by a process approved by the OCR.
+As I see it, the sole question for decision is whether those criteria offend section 1(1)(a) of the 1976 Act (as amended) by discriminating against some children (here M) on racial grounds, which, by section 3, include ethnic origin.
+On the facts of this case I prefer to ask whether the criteria offend against some children on the ground of their ethnic origin.
+To my mind the answer to that question does not depend upon the subjective state of mind of the Chief Rabbi or anyone else.
+Moreover, I do not think that the correct question to ask is whether OCRs guidance was given either on grounds of ethnic origin or on grounds of religion.
+That is because, so formulated, the test suggests that, if the guidance was given on the grounds of religion, it was not given on the grounds of ethnic origin.
+So formulated, the question could have only one answer because I entirely accept that the guidance was given on grounds of religion.
+That is clear from the guidance itself and indeed from a wealth of evidence before the court.
+Moreover, I fully understand that it can in one sense be said that those not recognised by the criteria as Orthodox Jews are, as Lord Brown puts it, being treated less favourably, not because of their ethnic origins, which he says are a matter of total indifference to the OCR, but rather because of their religion because they are not members of the Orthodox Jewish religion.
+However, again as Lord Brown puts it, the reason they are not members of the Orthodox Jewish religion is that their forbears in the matrilineal line were not recognised as Jewish by Orthodox Jews and in this sense their less favourable treatment is determined by their descent.
+Thus the ground upon which the OCR criteria defined those children to be admitted was that their forbears in the matrilineal line must be recognised as Jewish by Orthodox Jews.
+As I see it, in agreement with Lord Phillips, Lady Hale, Lord Mance and Lord Kerr, that is an ethnic ground, so that the discrimination was on both ethnic grounds and religious grounds.
+It is, in my opinion, wrong in principle to treat the question as an either/or question because that excludes the possibility that there were two grounds for the decision to exclude M, one religious and the other ethnic.
+If the religious ground was itself based upon an ethnic ground, then in my opinion the question asked by section 1(1)(a) of the 1976 Act, namely, whether M was discriminated against on ethnic grounds must be answered in the affirmative.
+It would be too narrow a construction of section 1(1)(a) to hold that that was not to discriminate on ethnic grounds.
+M was excluded because his mother was not Orthodox Jewish, whether by birth or conversion.
+That conclusion does not depend upon the state of mind of the OCR, but follows from an examination of the criteria laid down by the OCR.
+The question is not whether the guidance was given on religious grounds but whether the admitted discrimination was on ethnic grounds.
+In my opinion the answer is that the discrimination was on both religious and ethnic grounds because the criteria were arrived at on religious grounds but, since those religious grounds involved discrimination on ethnic grounds, it follows that the admissions policy of JFS was contrary to section 1(1)(a) because it discriminated against M and others on racial grounds.
+To hold that there were two grounds for the discrimination, both religious and ethnic, is not in my opinion to reduce, as Lord Rodger suggests, the religious element to the status of a mere motive.
+It is to recognise that the ethnic element is an essential feature of the religious ground.
+If Ms mother had been born a Masorti Jew (because someone in her matrilineal line been converted to Masorti Judaism) and had not been converted to Orthodox Judaism before Ms birth, Ms application would have been rejected because his mother was not, in the relevant sense, Jewish by birth.
+As I see it, for the reasons given in much more detail by others (and in particular Lord Mance) that would be discrimination on the ground of his ethnicity.
+To my mind the same is true on the facts of this case since at the time of Ms birth his mother was not, in the relevant sense, Jewish because she had not been converted to Orthodox Judaism in the manner accepted by the OCR.
+In both cases, as Lord Kerr puts it, the problem would be that M does not have the necessary matrilineal connection in his ethnic origin.
+Again as Lord Kerr puts it, the terminus for the OCR was a decision on a matter of religion but the route to that terminus was one of ethnic origin.
+In my opinion the state of mind of JFS, the Chief Rabbi and the OCR are all irrelevant to the determination of the critical question under section 1(1)(a).
+I agree with Lord Mance that there are two ways in which direct discrimination can be established.
+The first is where, whatever the motive and whatever the state of mind of the alleged discriminator, the decision or action was taken on a ground that was inherently racial and the second is where the decision or action was taken on a ground that was subjectively racial.
+Until now this distinction has not perhaps been as clearly identified in the authorities as it should be.
+The first class of case was established by R v Birmingham County Council ex p Equal Opportunities Commission [1989] AC 1155, where (as Lord Mance puts it) girls were required to achieve a higher standard than boys for grammar school entry because of a disparity in the number of grammar school places for boys and girls.
+Lord Goff, with whom the other members of the appellate committee agreed, made it clear at page 1194B that the question was simply whether there was less favourable treatment on the ground of sex, in other words if the relevant girl or girls would have received the same treatment as the boys but for their sex.
+The intention or motive of the council was not a necessary condition of liability.
+That was a question of fact and it was held by Lord Goff in the passage quoted by Lord Mance from page 1194C D that whatever may have been the intention or motive of the council, nevertheless it is because of their sex that the girls in question receive less favourable treatment than the boys, and so are the subject of discrimination under the Act of 1975.
+In James v Eastleigh Borough Council [1990] 2 AC 751, the swimming pool case, it was held that the test for free entry to the swimming pool at pensionable age unlawfully discriminated against men because men did not reach pensionable age until 65 whereas women reached it at 60.
+It is true that the House of Lords divided three to two but that seems to me to be irrelevant.
+The simple question was again a question of fact, namely whether men and women were treated differently.
+It was held that they were, even though, as Lord Mance has suggested, the test was probably adopted because it was thought that those of pensionable age would be more needy.
+Lord Goff said much the same as he had said in the Birmingham case.
+He put it thus at page 772B G: I turn to that part of the Vice Chancellor's reasoning which is based upon the wording of section 1(1)(a).
+The problem in the present case can be reduced to the simple question did the defendant council, on the ground of sex, treat the plaintiff less favourably than it treated or would treat a woman? As a matter of impression, it seems to me that, without doing any violence to the words used in the subsection, it can properly be said that, by applying to the plaintiff a gender based criterion, unfavourable to men, which it has adopted as the basis for a concession of free entry to its swimming pool, it did on the ground of sex treat him less favourably than it treated women of the same age and in particular Mrs. James.
+In other words, I do not read the words on the ground of sex as necessarily referring only to the reason why the defendant acted as he did, but as embracing cases in which a gender based criterion is the basis upon which the complainant has been selected for the relevant treatment.
+Of course, there may be cases where the defendant's reason for his action may bring the case within the subsection, as when the defendant is motivated by an animus against persons of the complainant's sex, or otherwise selects the complainant for the relevant treatment because of his or her sex.
+But it does not follow that the words on the ground of sex refer only to case where the defendants reason for his action is the sex of the complainant; and, in my opinion, the application by the defendant to the complainant of a gender based criterion which favours the opposite sex is just as much a case of unfavourable treatment on the ground of sex.
+Such a conclusion seems to me to be consistent with the policy of the Act, which is the active promotion of equal treatment of men and women.
+Indeed, the present case is no different from one in which the defendant adopts a criterion which favours widows as against widowers, on the basis that the former are likely to be less well off; or indeed, as my noble and learned friend, Lord Bridge of Harwich has pointed out, a criterion which favours women between the ages of 60 and 65, as against men between the same ages on the same basis.
+It is plain to me that, in those cases, a man in either category who was so treated could properly say that he was treated less favourably on the ground of sex, and that the fact that the defendant had so treated him for a benign motive (to help women in the same category, because they are likely to be less well off) was irrelevant.
+Lord Bridge and Lord Ackner said much the same.
+For example, Lord Bridge said at page 763H that the use of the statutory criterion for pensionable age, being fixed at 60 for women and 65 for men, was to use a criterion which directly discriminated between men and women.
+See also per Lord Bridge at page 765G.
+Lord Ackner said at page 769F H that the formula used was inherently discriminatory.
+He noted that no evidence had been given in the county court as to why the council had decided on the policy.
+He said that such evidence would have been irrelevant because, as he put it, the policy was crystal clear.
+If you were a woman you could swim at 60 without payment whereas if you were a man you had to wait until you were 65.
+The reason why the policy was adopted could in no way affect or alter the fact that the council had decided to implement a policy by virtue of which men were to be treated less favourably than women and were to be treated on the ground of, ie by reason of, their sex.
+In my opinion that analysis applies here.
+Just as in that case the admissions criteria were gender based and thus discriminatory on the ground of sex contrary to section 1(1)(a) of the Sex Discrimination Act 1975, so here the JFS admissions criteria were based on ethnicity and thus discriminatory on racial grounds as defined in section 1(1)(a) of the 1976 Act.
+For my part I do not accept that more recent decisions of the House of Lords call for a more nuanced approach than that stated in the Birmingham and Eastleigh cases.
+As I read the later cases, they simply accept, as Lord Goff accepted in the passage from his speech in the Eastleigh case quoted above, that there may be cases where the defendant's reason for his action may bring the case within the subsection, as when the defendant is motivated by an animus against persons of the complainant's sex, or otherwise selects the complainant for the relevant treatment because of his or her sex or (I am sure he would have added) because of his or her race or ethnicity.
+As I see it, this is a separate basis on which direct discrimination can be established.
+It does not involve any alteration to the principle stated by Lord Goff, Lord Bridge and Lord Ackner and set out above.
+In Nagarajan v London Regional Transport [2000] 1 AC 501 the House of Lords was concerned with an allegation of alleged unlawful victimisation under section 2 of the 1976 Act.
+It applied the same principles as those applicable under section 1(1)(a).
+The leading speech was given by Lord Nicholls, Lord Steyn made a concurring speech, Lord Hutton and Lord Hobhouse agreed with Lord Nicholls and Lord Steyn, and Lord Browne Wilkinson dissented.
+Lord Steyn said at page 520H that the Birmingham and Eastleigh cases established the principle that conscious motivation is not required for direct discrimination.
+In these circumstances it is inherently unlikely that there is any distinction between the principles established by those cases and the reasoning in Nagarajan.
+In my opinion there is not.
+Reliance was placed on part of the speech of Lord Nicholls.
+Read in context, the relevant passage is in these terms at pages 510H 511E: The first point raised is whether conscious motivation is a prerequisite for victimisation under section 2 of the Act.
+Section 2 should be read in the context of section 1.
+Section 1(1)(a) is concerned with direct discrimination, to use the accepted terminology.
+To be within section 1(1)(a) the less favourable treatment must be on racial grounds.
+Thus, in every case it is necessary to inquire why the complainant received less favourable treatment.
+This is the crucial question.
+Was it on grounds of race? Or was it for some other reason, for instance because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator.
+Treatment, favourable or unfavourable, is a consequence which follows from a decision.
+Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming.
+Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.
+The crucial question just mentioned is to be distinguished sharply from a second and different question: if the discriminator treated the complainant less favourably on racial grounds, why did he do so? The latter question is strictly beside the point when deciding whether an act of racial discrimination occurred.
+For the purposes of direct discrimination under section 1(1)(a), as distinct from indirect discrimination under section 1(1)(b), the reason why the alleged discriminator acted on racial grounds is irrelevant.
+Racial discrimination is not negatived by the discriminator's motive or intention or reason or purpose (the words are interchangeable in this context) in treating another person less favourably on racial grounds.
+In particular, if the reason why the alleged discriminator rejected the complainant's job application was racial, it matters not that his intention may have been benign.
+For instance, he may have believed that the applicant would not fit in, or that other employees might make the applicant's life a misery.
+If racial grounds were the reason for the less favourable treatment, direct discrimination under section 1(1)(a) is established. (My emphasis)
+Lord Nicholls then added at page 511E H that this law, which is well established was confirmed by the House of Lords in the Birmingham and Eastleigh cases as described above.
+He said that in the Birmingham case the answer to the crucial question was plain because, as a matter of fact, girls received less favourable treatment than boys.
+It followed that there was direct sex discrimination and the reason for it was irrelevant.
+The same was true in Eastleigh because the reduction in swimming pool charges was geared to a criterion which was itself gender based.
+It is true that Lord Nicholls added this: Lord Bridge of Harwich, at p 765, described Lord Goff's test in the Birmingham case as objective and not subjective.
+In stating this he was excluding as irrelevant the (subjective) reason why the council discriminated directly between men and women.
+He is not to be taken as saying that the discriminator's state of mind is irrelevant when answering the crucial, anterior question: why did the complainant receive less favourable treatment?
+The essence of Lord Nicholls view can be seen in the italicised passages in the quotation at para 139 above.
+If, viewed objectively, the discriminator discriminated against the claimant on racial grounds the reason why he did so is irrelevant.
+Thus in Birmingham and Eastleigh the sex discrimination was objectively plain from the criteria adopted.
+Once that was established, the state of mind of the discriminator was, as Lord Nicholls put it, strictly beside the point.
+That, as I see it, is this case.
+This is a plain or obvious case of the kind Lord Nicholls had in mind because the position is clear from the OCRs criteria.
+When he said in the first of the italicised passages that, save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator, he had in mind, not this kind of case, which he would have regarded as obvious, but the kind of case he had just mentioned namely where the claimant was discriminated against but it was not clear whether that was because of unlawful discrimination on the ground of, say, race or sex, or for some other reason, for instance, because the complainant was not so well qualified for the job.
+This is not such a case.
+In this connection I cannot agree with Lord Hopes analysis of the passage quoted at para 194 from page 512 of Lord Nicholls speech in Nagarajan.
+Lord Nicholls was there considering the question of unconscious motivation.
+He was doing so because that was not a case of discrimination inherent in the relevant rules such as existed in Birmingham, Eastleigh and this case.
+In these circumstances it is not, in my opinion, possible to draw from that passage in Lord Nicholls speech the proposition that if, after careful and thorough investigation, the tribunal were to conclude that the employers actions were not racially motivated, in the sense that race was not the reason why he acted as he did, it would be entitled to draw the inference that the complainant was not treated less favourably on racial grounds.
+It would not be so entitled for the reasons given in Birmingham and Eastleigh, namely that this is a case of inherent discrimination.
+Equally, when Lord Nicholls said in Chief Constable of West Yorkshire Police v Khan [2001] 1 WLR 1947, para 29 that the question was why the discriminator acted as he did or, put another way, what consciously or unconsciously was his reason, Lord Nicholls was not considering this kind of case.
+For the same reason I do not think that the decision in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, [2003] ICR 337, is of any assistance in this kind of case.
+In these circumstances I agree with Lord Hope at para 195 that at the initial stage, when the question is whether or not the discrimination was on racial grounds, the alleged discriminators motivation may not only be relevant but also necessary, in order to reach an informed decision as to whether or not this was a case of racial discrimination.
+However, I emphasize the word may because, for the reasons I have already given, the discriminators motivation or subjective reasoning is not in my opinion relevant in every case.
+The authorities, namely Birmingham, Eastleigh and Nagarajan show that it is not relevant where the criteria adopted or (in Lord Ackners words) the formula used are or is inherently discriminatory on ethnic grounds.
+Lord Nicholls has however shown that it is relevant in other cases where, without investigating the state of mind of the alleged discriminator, it is not possible to say whether the discrimination was on ethnic grounds or not.
+The question arises what considerations are relevant in answering the question whether the criteria were inherently racial.
+I entirely accept (and there is indeed no dispute) that JFS, the Chief Rabbi and the OCR are, as Lord Hope puts it at para 201, thoughtful, well intentioned and articulate and that, as Lord Pannick submitted, the Chief Rabbi was not in the least interested in Ms ethnicity.
+It is true that, if the Chief Rabbi were asked why he acted as he did, he would say that his reason was that this was what was required of him by fundamental Orthodox Jewish religious law.
+Again as Lord Hope puts it, Jewishness based on matrilineal descent from Jewish ancestors has been the Orthodox religious rule for many thousands of years, subject only to the exception for conversion.
+I agree so far.
+However, I do not agree that to say that his ground was a racial one is to confuse the effect of the treatment with the ground itself.
+The reason I disagree with Lord Hope (or perhaps the ground on which I do so) is that his opinion depends upon the state of mind of the Chief Rabbi.
+Thus in the passage in Lord Nicholls speech to which Lord Hope refers Lord Nicholls was considering the kind of case in which it is necessary to consider the mental processes of the alleged discriminator.
+Lord Hope makes it clear at para 201 that to categorise the criteria as based on racial grounds might be justified if there were reasons for doubting the Chief Rabbis frankness or good faith.
+However, to my mind it does not follow that the criteria were not based on racial grounds because neither the Chief Rabbi nor the OCR thought that they were.
+If the religious grounds were themselves based on racial (or ethnic) grounds then one of the grounds upon which there was discrimination based on the criteria was ethnic.
+This appears from both the Birmingham and the Eastleigh cases.
+I have already expressed the view that the principles in those cases apply here.
+Lord Rodger however says that they do not come into the picture.
+As I see it, that could only be on the basis that the issue is resolved by the subjective state of mind of the Chief Rabbi, the OCR and the governors of JFS.
+It is said that the governors were not asked to consider and, did not actually consider, Ms ethnic origins and, if they had done so, that they would have regarded them as irrelevant.
+However, they considered the criteria which Orthodox Judaism had applied for very many years and, although I entirely accept that they did so for religious reasons, I do not accept they were not considering Ms ethnic origins or making a decision on ethnic grounds.
+Such a view would be to take too narrow a view of the concept of ethnic origins or of the meaning of ethnic origin in sections 1(1)(a) and 3 of the 1976 Act.
+As I see it, once it is accepted (as Lord Brown does) that the reason M is not a member of the Jewish religion is that his forbears in the matrilineal line were not Orthodox Jews and that, in that sense his less favourable treatment is determined by his descent, it follows that he is discriminated against on ethnic grounds.
+It makes no difference whether the reason M is not acceptable is that neither his mother nor anyone in his matrilineal line was born Jewish or that his mother was not converted to Orthodox Judaism.
+The question is, in my opinion, not that espoused by Lord Rodger, but whether it is discrimination on ethnic grounds to discriminate against all those who are not descended from Jewish women.
+In my opinion it is.
+Lord Phillips, Lady Hale, Lord Mance and Lord Kerr have explained in detail why in their view the criteria were indeed discriminatory on ethnic and therefore racial grounds.
+I agree with their reasoning and do not wish further to add to it.
+In short, it is not in dispute that the decision in Ms case was taken on the basis of the criteria laid down by the OCR and followed by JFS.
+It follows that, if the criteria involved discrimination based on ethnic grounds, the decision was taken on a ground that was inherently racial and there was direct discrimination within section 1(1)(a) of the 1976 Act.
+If that is so, as I see it, the fact that the discrimination was also on religious grounds is irrelevant, as are both the fact that the religious grounds have been adopted for thousands of years and the fact that the Chief Rabbi and the OCR (and therefore JFS) concentrated wholly on the religious questions.
+In the Court of Appeal at para 30 Sedley LJ, with whom Smith LJ and Rimer LJ agreed, expressed the view that if that were not so, a person who honestly believed, as the Dutch Reformed Church of South Africa until recently believed, that God had made black people inferior and had destined them to live separately from whites, would be able to discriminate openly against them without breaking the law.
+I agree.
+It is to my mind no answer to say that the discrimination invited by the belief, on the grounds of colour, was overtly racist.
+It is true that such discrimination would be overtly on racial grounds but that is because the criteria were inherently based on racial grounds and not because of the subjective state of mind of the members of the Dutch Reformed Church or because of some principle of public policy.
+However, the 1976 Act banning direct discrimination is an application of public policy, rather like the decision of the of the United States Supreme Court in Bob Jones University v United States 461 US 574 (1983).
+I would however add that if, contrary to the views I have expressed, the state of mind of the Chief Rabbi and the OCR are relevant they must surely have subjectively intended to discriminate against applicants like M on the grounds set out in the criteria so that, again, if the criteria are based on ethnic grounds contrary to section 1(1)(a), they must surely have subjectively intended that result, however much the reason they did so was, as they saw it, religious.
+Finally, under the heading of direct discrimination, I would like to identify some of the aspects of the argument that I regard as irrelevant to the resolution of the single question whether the OCR criteria discriminate against applicants who do not meet the criteria on ethnic, and thus racial, grounds contrary to section 1(1)(a) of the 1976 Act.
+They include the following. i) It is suggested that the 1976 Act does not outlaw discrimination by an ethnic group against the same ethnic group.
+However, as I see it, the question is simply whether the discrimination is on ethnic grounds.
+The discrimination is not in dispute.
+I do not see that the identity of the discriminator is of any real relevance to the answer to the question.
+There is certainly nothing in the language or the context of section 1 of the Act or in its statutory purpose to limit the section in that way. ii) Like any statutory provision, the language of section 1(1)(a) should be construed in its context and having regard to its statutory purpose.
+Parliament decided to distinguish between direct and indirect discrimination.
+Adopting that approach, I am not persuaded that it is appropriate to construe section 1(1)(a) narrowly because it is not possible to justify the discrimination outlawed by it.
+Parliament could, like the European Convention on Human Rights, have permitted justification but, for policy reasons, chose not to. iii) For whatever reason, the question of construction of section 1(1)(a) has not arisen before.
+I do not, however, think that it can be relevant to that question that, if the respondents argument is correct, JFS has been acting unlawfully for more than thirty years.
+The question is the same now as it would have been if it had been raised thirty years ago.
+The provisions of the Equality Act 2006 are irrelevant for the same reasons.
+I accept that this case is curious in that both M and E are Masorti Jews who, like Orthodox Jews, recognise those whose mothers or others in the matrilineal line were Jews by descent or conversion.
+The real complaint is that the OCR does not accept conversion as practised by Masorti Jews because otherwise M would have qualified.
+I take Lord Browns point at para 248, (a) that E is not really seeking to prevent JFS from adopting oversubscription criteria which give priority to Jews but rather for JFS to define Jews more expansively than Orthodox Jews in fact do, and (b) that on the respondents argument it is strictly immaterial that E is Jewish or that Ms mother converted to Judaism, so that the policy could by struck down by anyone excluded by the application of the criteria.
+I recognise that there is an irony here but I do not see that that fact is relevant in answering the question posed by the statute, namely whether the discrimination is on ethnic grounds.
+I do not regard the consequences of the conclusion that the OCR criteria discriminate on ethnic grounds as relevant to the question whether they do or not.
+I am in any event not persuaded that they are anything like as serious as was suggested in argument. iv) v)
+It follows that I too would dismiss the appeal.
+Indirect discrimination
+Like Lord Kerr, I entirely agree with the reasoning and conclusion of Lord Mance on this issue, although if the appeal is dismissed on the direct discrimination issue, the issue of indirect discrimination does not arise.
+I agree with Lord Hopes reasoning and conclusions on costs.
+Postscript
+I wish to stress that nothing in the reasoning which has led me (or I believe others) to the conclusion that the criteria adopted by JFS discriminated against applicants on ethnic grounds is based on the view that the Chief Rabbi, the OCR or JFS acted in a racist way.
+In this regard I entirely agree with Lord Phillips and Lady Hale that any suggestion that they acted in a racist way in the popular sense of that term must be dismissed.
+Finally I direct the reader to the final paragraph in the judgment of Lord Kerr, at para 124 above, with which I am in complete agreement.
+The Minority Judgments
+LORD HOPE
+It has long been understood that it is not the business of the courts to intervene in matters of religion.
+In R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, ex p Wachmann [1992] 1 WLR 1036, 1042 1043, Simon Brown J observed that the court was hardly in a position to regulate what was essentially a religious function in that case, the determination whether someone was morally and religiously fit to carry out the spiritual and pastoral duties of his office.
+As he put it, the court must inevitably be wary of entering so self evidently sensitive an area, straying across the well recognised divide between church and state.
+This too is the approach of the legislature, as Hoffmann LJ said in R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 1 WLR 909, 932: religion is something to be encouraged but it is not the business of government.
+It is just as well understood, however, that the divide is crossed when the parties to the dispute have deliberately left the sphere of matters spiritual over which the religious body has exclusive jurisdiction and engaged in matters that are regulated by the civil courts.
+In Percy v Board of National Mission of the Church of Scotland [2005] UKHL 73, [2006] 2 AC 28, for example, the appellant was employed by the Board of Mission under a contract personally to execute work within the meaning of section 82(1) of the Sex Discrimination Act 1975.
+The articles declaratory of the constitution of the Church of Scotland set forth in the Schedule to the Church of Scotland Act 1921 contain an assertion that the civil authority has no right of interference in the proceedings and judgments of the Church within the sphere of its spiritual government and jurisdiction.
+But it was held that by entering into a contract binding under the civil law the parties had put themselves within the jurisdiction of the civil courts and that the appellants claim of sex discrimination could not be regarded as a spiritual matter.
+The same approach to arguments based on religious doctrine has been adopted by the Supreme Court of Israel.
+In No'ar K'halacha v The Ministry of Education, HCJ 1067/08, 6 August 2009 the Court held that, although religious affiliation as a basis for treating students differently was recognised by Israeli law, it was not an absolute claim and could not prevail over the overarching right to equality.
+The school in question had established a two tier, ethnically segregated system by which students of Ashkenazi descent were automatically assigned to one group and those of Sephardi descent were assigned to another.
+Although this was purportedly on religious grounds, the thinly disguised subtext was that the Ashkenazi group were superior to the Sephardi and that, as they were the elite, their education should be organised accordingly.
+The Supreme Court rejected the schools argument that this was due to religious considerations, holding that they were a camouflage for discrimination cloaked in cultural disparity.
+It ordered the school to end all discriminatory practices against students who were of Sephardi ethnic origin.
+It is accepted on all sides in this case that it is entirely a matter for the Chief Rabbi to adjudicate on the principles of Orthodox Judaism.
+But the sphere within which those principles are being applied is that of an educational establishment whose activities are regulated by the law that the civil courts must administer.
+Underlying the case is a fundamental difference of opinion among members of the Jewish community about the propriety of the criteria that the Office of the Chief Rabbi of the United Hebrew Congregation of the Commonwealth (the OCR) applies to determine whether a person is or is not Jewish.
+It is not for the court to adjudicate on the merits of that dispute.
+But the discrimination issue is an entirely different matter.
+However distasteful or offensive this may appear to be to some, it is an issue in an area regulated by a statute that must be faced up to.
+It must be resolved by applying the law laid down by Parliament according to the principles that have been developed by the civil courts.
+By far the most important issue in the appeals which are before this court is whether it is unlawful direct or indirect race discrimination for a faith school to adopt oversubscription criteria which give priority to children who are recognised by the OCR to be Jewish according to Orthodox Jewish principles.
+There is also an appeal by the United Synagogue in relation to a costs order made against it by the Court of Appeal, which I shall deal with briefly at the end of this opinion.
+Almost everything that I wish to say will be devoted to the main issue.
+I should make it clear at the outset that I agree with everything that Lord Rodger and Lord Brown say on the issue of direct discrimination.
+With much regret, I differ from them on the indirect discrimination issue.
+But I differ from them only when I reach the final step in that part of the argument.
+On both issues I agree entirely with Lord Walker.
+As for the facts, I have dealt with them more fully than would normally be appropriate in a minority judgment.
+I hope that, by doing so, I will have made it easier for all other members of the court to concentrate on the issues of law that arise in this case.
+The facts
+JFS, formerly the Jewish Free School, is a voluntary aided comprehensive secondary school which is maintained by the local authority, the London Borough of Brent.
+It has a long and distinguished history which can be traced back to 1732.
+It has over 2000 pupils, and for more than the past 10 years it has been over subscribed.
+It regularly has twice the number of applicants for the places that are available.
+Clause 8 of its Instrument of Government dated 18 October 2005 provides: Statement of School Ethos Recognising its historic foundation, JFS will preserve and develop its religious character in accordance with the principles of orthodox Judaism, under the guidance of the Chief Rabbi of the United Hebrew Congregations of the Commonwealth.
+The School aims to serve its community by providing education of the highest quality within the context of Jewish belief and practice.
+It encourages the understanding of the meaning of the significance of faith and promotes Jewish values for the experience of all its pupils.
+Further information is given by the school on its website, which states: The outlook and practice of the School is Orthodox.
+One of our aims is to ensure that Jewish values permeate the School.
+Our students reflect the very wide range of the religious spectrum of British Jewry.
+Whilst two thirds or more of our students have attended Jewish primary schools, a significant number of our Year 7 intake has not attended Jewish schools and some enter the School with little or no Jewish education.
+Many come from families who are totally committed to Judaism and Israel; others are unaware of Jewish belief and practice.
+We welcome this diversity and embrace the opportunity to have such a broad range of young people developing Jewish values together.
+The culture and ethos of the school is Orthodox Judaism.
+But there are many children at JFS whose families have no Jewish faith or practice at all.
+Prior to the decision of the Court of Appeal in this case the principal admissions criterion of JFS was that, unless undersubscribed, it would admit only children who were recognised as being Jewish by the OCR.
+Its policy for the year 2008/09, which can be taken to be the same as that for the year in question in this case, was as follows: It is JFS (the School) policy to admit up to the standard admissions number children who are recognised as being Jewish by the Office of the Chief Rabbi of the United Hebrew Congregation of the Commonwealth (OCR) or who have already enrolled upon or who have undertaken, with the consent of their parents, to follow any course of conversion to Judaism under the approval of the OCR.
+The Chief Rabbi is the head of the largest groups of Orthodox synagogues in the United Kingdom.
+But he does not represent all Orthodox communities, nor does he represent the Masorti, Reform and Progressive Jewish communities.
+In accordance with Jewish law, the OCR recognises as Jewish any child who is descended from a Jewish mother.
+The mother herself must be descended from a Jewish mother or must have been converted to Judaism before the birth of the child in a manner recognised as valid by the OCR.
+Such a child is recognised by the OCR as Jewish regardless of the form of Judaism practised by the family (Orthodox, Masorti, Reform or Progressive).
+He is so recognised even if the entire family has no Jewish faith or observance at all.
+A family may be entirely secular in its life and outlook.
+Its members may be atheists or even be practising Christians or practising Muslims.
+Yet, if the child was himself born of a Jewish mother, he will be recognised as Jewish by the OCR and eligible for a place at JFS.
+These proceedings have been brought in relation to a child, M on the application of his father, E. Ms father is of Jewish ethnic origin.
+Ms mother is Italian by birth and ethnic origin.
+Before she married E she converted to Judaism under the auspices of a non Orthodox synagogue.
+Her conversion is recognised as valid by the Masorti, Reform and Progressive Synagogues.
+But it was undertaken in a manner that is not recognised by the OCR.
+She and E are now divorced and M lives mainly with his father.
+He and his father practise Judaism, and they are both members of the Masorti New London Synagogue.
+M practices his own Jewish faith, prays in Hebrew, attends synagogue and is a member of a Jewish Youth Group.
+But the OCR does not recognise him as of Jewish descent in the maternal line.
+His mother is not recognised as Jewish by the OCR and he has not undergone, or undertaken to follow, a course of approved Orthodox conversion.
+Consequently he was unable to meet the schools criterion for admission.
+In April 2007 he was refused a place at JFS for year 7 in the academic year 2007 2008.
+The effect of this decision on M and his family was profound and it was distressing.
+There was no other Jewish secondary school in London to which he could be admitted.
+So he was denied the opportunity of obtaining a Jewish secondary education in accordance with the familys religious beliefs and preference.
+On 15 April 2007 E notified JFSs Admission Appeals Panel that he wished to appeal.
+After a hearing on 5 June 2007, the Appeal Panel dismissed his appeal.
+In its decision letter of 11 June 2007 the Appeal Panel said that a challenge to the admissions criteria was outside its remit.
+On 2 July 2007 E referred his objection to the Schools Adjudicator, challenging JFSs admissions criteria for both under subscription and oversubscription.
+On 27 November 2007 the Schools Adjudicator upheld his complaint about the under subscriptions criteria, but he dismissed it in relation to the oversubscription criteria with which this case is concerned.
+E then raised proceedings for judicial review of JFSs decision to refuse M a place at the school and of the decision of the Appeal Panel to dismiss his appeal.
+In separate proceedings he sought judicial review of the decision of the Schools Adjudicator.
+On 3 July 2008 Munby J dismissed both claims for judicial review, except for Es claim that the Governing Body of JFS was in breach of its duty under section 71 of the Race Relations Act 1976 to have due regard to the need to eliminate racial discrimination and to promote equality of opportunity and good race relations: [2008] EWHC 1535 (Admin); [2008] ELR 445.
+He rejected Es argument that there had been direct discrimination on the grounds of race or ethnic origins, holding that it was based on religion: para 174.
+He also rejected his argument that there was indirect race discrimination, holding that, as JFS exists as a school for Orthodox Jews, its admissions policy of giving preference to children who were Jewish by reference to Orthodox Jewish principles was a proportionate means of achieving a legitimate aim within the meaning of section 1(1A)(c) of the 1976 Act: paras 201 202.
+He made a declaration to the effect that JFS was in breach of section 71.
+But in para 214 of his judgment he said that even the fullest and most conscientious compliance with that section would not have led to any difference in the crucial part of the admissions policy or its application in Ms case.
+On 25 June 2009 the Court of Appeal (Sedley, Smith and Rimer LJJ) allowed the appeal by E in both sets of proceedings: [2009] EWCA Civ 626; [2009] 4 ALL ER 375.
+Sedley LJ said that the courts essential difference with Munby J was that what he characterised as religious grounds were, in its judgment, racial grounds notwithstanding their theological motivation: para 48.
+As that observation indicates, the point at issue in this case is how the grounds are to be characterised.
+It is, in the end, a very narrow one.
+But it is by no means a simple one to resolve, as the division of opinion in this court indicates.
+The Race Relations Act 1976
+Section 1 of the Race Relations Act 1976 defines race discrimination.
+It was amended by the Race Relations Act 1976 (Amendment) Regulations 2003 (SI 2003/1626) which, implementing Council Directive 2000/43 EC of 29 June 2000, rewrote in European terms the concept of indirect discrimination.
+So far as material it provides as follows: (1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if (a) on racial grounds he treats that other less favourably than he treats or would treat other persons (1A) A person also discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in subsection (1B), he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but (a) which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons, (b) which puts or would put that other at that disadvantage, and (c) which he cannot show to be a proportionate means of achieving a legitimate aim. (1B) The provisions mentioned in subsection (1A) are (b) section 17;
+(c) section 19B
+Section 3 of the 1976 Act provides: (1) In this Act, unless the context otherwise requires racial grounds means any of the following grounds, namely colour, race, nationality or ethnic or national origins; racial group means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a persons racial group refer to any racial group into which he falls. (2) The fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group for the purposes of this Act. (4) A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) or (1A) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.
+Section 17 makes it unlawful for the governing body of a maintained school to discriminate against a person in the terms that it offers to admit him to the establishment as a pupil, or by refusing or deliberately omitting to accept an application for his admission to the establishment as a pupil.
+Section 19B(1) provides that it is unlawful for a public authority in carrying out any functions of the authority to do any act which constitutes discrimination.
+These provisions make it clear that the sphere within which the OCR was providing guidance to JFS was firmly within the jurisdiction of the civil courts.
+The admission arrangements
+The context in which JFSs admissions criteria must be examined is provided by statute.
+The functioning of publicly funded schools is governed by the School Standards and Framework Act 1998 (the 1998 Act).
+Schools maintained by local authorities are referred to as maintained schools.
+They include voluntary aided schools such as JFS: section 20(1)(c).
+Section 20(1) of the Education Act 2002 provides that for every maintained school there shall be an instrument of government which determines the constitution of the governing body and other matters relating to the school.
+Section 69 of the 1998 Act imposes duties in regard to the provision of religious education in community, foundation and voluntary schools.
+Section 69(3) provides that a foundation or voluntary school has a religious character if it is designated as a school having such a character by an order made by the Secretary of State.
+Section 69(4) requires such an order to state the religion or religious denomination in accordance with whose tenets religious education is, or may be, required to be provided at the school.
+Under the Religious Character of Schools (Designation Procedure) Regulations 1998 (SI 1998/2535) the Secretary of State is required to designate the religion or religious denomination he considers relevant, following consultation with the schools governing body.
+By the Designation of Schools Having a Religious Character (England) Order 1999 (SI 1999/2432) the Secretary of State designated JFS as having a religious character which is Jewish.
+Some other schools have been designated as Orthodox Jewish.
+By the Designation of Schools Having a Religious Character (Independent Schools) (England) (No 2) Order 2003 (SI 2003/3284) two schools were designated under this description.
+Part 2 of the Equality Act 2006 introduced a prohibition on discrimination on grounds of religion or belief in the provision of goods and services.
+Section 49 provides that it is unlawful for the responsible body of, among others, a school maintained by a local education authority to discriminate against any person by, among other things, refusing to accept an application to admit him as a pupil.
+Section 50 contains a list of exceptions to section 49, among which is one in favour of a school designated under 69(3) of the 1998 Act.
+As Munby J pointed out, this provision does no more than immunise the school from liability for religious discrimination under the 2006 Act: para 137.
+It does not immunise it from any liability for racial discrimination that it may have under the Race Relations Act 1976.
+Section 84 of the 1998 Act provides that the Secretary of State shall issue, and may from time to time revise, a code of practice for the discharge of their functions under Chapter 1 of Part III of the Act by, among others, the governing bodies of maintained schools and that the governing bodies must act in accordance with the code.
+Paragraphs 2.41 2.43 of the School Admissions Code for 2007 deals with faith based oversubscription criteria.
+Paragraph 2.41 states that schools designated by the Secretary of State as having a religious character (faith schools) are permitted by section 50 of the Equality Act 2006 to use faith based oversubscription criteria in order to give priority in admission to children who are members of, or who practise, their faith or denomination.
+It also states that faith based criteria must be framed so as not to conflict with other legislation such as equality and race relations legislation.
+Paragraph 2.43 of the 2007 Code states: It is primarily for the relevant faith provider group or religious authority to decide how membership or practice is to be demonstrated, and, accordingly, in determining faith based oversubscription criteria, admission authorities for faith schools should only use the methods and definitions agreed by their faith provider group or religious authority.
+Paragraph 2.47 states: Religious authorities may provide guidance for the admission authorities of schools of their faith that sets out what objective processes and criteria may be used to establish whether a child is a member of, or whether they practise, the faith.
+The admission authorities of faith schools that propose to give priority on the basis of membership or practice of their faith should have regard to such guidance, to the extent that the guidance is consistent with the mandatory provisions and guidelines of this Code.
+Section 88C(2) and (3) of the 1998 Act provides that Regulations may prescribe who should be consulted by the admission authority about admission arrangements.
+Regulation 12 of and Schedule 2 to the School Admissions (Admission Arrangements) (England) Regulations 2008 (SI 2008/3089) provide that the person that the governing body of JFS must consult about the admission arrangements for JFS for the academic year 2010 2011 is the Chief Rabbi.
+The regulations that were in force in 2007 when M was seeking admission to JFS were the Education (Determination of Admission Arrangements) Regulations 1999 (SI 1999/126) as amended which, by Regulation 5ZA and the Schedule, introduced provisions similar to those in the 2008 Regulations.
+The Chief Rabbi was the person to be consulted at the time when Ms application for admission was being considered.
+Provision has been made under section 88H (formerly section 90) of the 1998 Act for parents of a child of primary school age to refer an objection to a schools admission arrangements to the Schools Adjudicator.
+The procedure for determining admission arrangements is governed by section 88C of the 1998 Act, formerly (as regards England) section 89.
+It states that the admission arrangements are to be determined by the admission authority.
+For a voluntary aided school the governing body is the admission authority: see section 88(1).
+The governing body of JFS adopted an admissions policy which set out the schools over subscription criteria.
+The policy that was in force in 2007 stated: 1.1 It is JFS (the School) policy to admit up to the standard admissions number children who are recognised as being Jewish by the Office of the Chief Rabbi of the United Hebrew Congregation of the Commonwealth (OCR) or who have already enrolled upon or who have undertaken, with the consent of their parents, to follow any course of conversion to Judaism under the approval of the OCR. 1.2 In the event that the School is oversubscribed then only children who satisfy the provisions of paragraph 1.1 above will be considered for admission, in accordance with the oversubscription criteria set out in Section 2 below.
+JFS cannot be criticised for basing its oversubscription criteria on the guidance that it received from the OCR.
+But this does not excuse it from liability for racial discrimination under the Race Relations Act 1976 if the guidance that it received was itself racially discriminatory.
+The OCR's guidance
+In connection with JFSs admissions for the year 2009 an application form, Application for Confirmation of Jewish Status, was issued by the OCR.
+Parents were required to select from the following options: (a) I confirm that the childs biological mother is Jewish by birth. (b) I confirm that the childs biological mother has converted to Judaism. (c) I confirm that the child is adopted [in which case the childs Jewish status must be separately verified].
+The guidance notes to the application form state: Jewish status is not dependent on synagogue affiliation per se, though Jewish status will not be confirmed if the child, or any of his/her maternal antecedents, converted to Judaism under non orthodox auspices.
+If the childs parents were not married under orthodox auspices, further investigation will be necessary before confirmation of Jewish status is issued.
+This usually entails obtaining additional documentary evidence down the maternal line.
+If the childs mother was not herself born to a Jewish mother but converted to Judaism before the birth of the child, further inquiries are undertaken by the OCR before it is prepared to recognise the child as Jewish.
+The OCR does not recognise the validity of conversions carried out by non Orthodox authorities, as they do not require converts to subscribe fully to the tenets of Orthodox Judaism.
+The exacting process that is indicated by the wording of the application form is firmly rooted in Orthodox Jewish religious law.
+Religious status is not dependent on belief, religious practice or on attendance at a synagogue.
+It is entirely dependent upon descent or conversion.
+It depends on establishing that the person was born to a Jewish mother or has undergone a valid conversion to Judaism.
+That is a universal rule that applies throughout all Orthodox Judaism.
+Ms ineligibility for admission to JFS was due to the fact that different standards are applied by the Chief Rabbi from those applied by the Masorti, Reform and Progressive communities in the determining of a persons religious status.
+Nothing that I say in this opinion is to be taken as calling into question the right of the OCR to define Jewish identity in the way it does.
+I agree with Lord Brown that no court would ever dictate who, as a matter of Orthodox religious law, is to be regarded as Jewish.
+Nor is it in doubt that the OCRs guidance as to the effect of Orthodox Jewish religious law was given in the utmost good faith.
+The question that must now be faced is a different question.
+It is whether it discriminates on racial grounds against persons who are not recognised by the OCR as Jewish.
+The Jewish race and ethnicity
+It is common ground that for the purposes of the Race Relations Act 1976 Jews can be regarded as belonging to a group with common ethnic origins.
+As Lord Brown says (see paras [245] and [250]), it is possible (leaving aside those with no connection with Judiasm at all) to regard those who are being treated less favourably and those being treated more favourably by JFSs admissions policy as being all in the same ethnic group since they are all Jews.
+Lord Mance says (see paras 79, 80 and 86) that Orthodox Jews according to Orthodox Jewish principles and Jews who are not Orthodox should be regarded as forming separate ethnic groups or subgroups for present purposes.
+But the evidence in this case shows that it all depends on the context.
+Out on the shop floor, for example, all Jews are Jews and an employer who discriminates against them because they are Jews will be in breach of the Act.
+The problem in this case is that the Chief Rabbi does not recognise as a Jew anyone who is not a Jew according to Orthodox Jewish principles.
+So far as he is concerned and his concern is only with the Jewish religion there is no division of Jews into separate ethnic groups.
+I agree with Lord Brown that the difficulty in this case arises because of the overlap between the concepts of religious and racial discrimination and, in the case of Jews, the overlap between ethnic Jews and Jews recognised as members of the Jewish religion.
+The case does not fit easily into the legislative pattern.
+It was designed to deal with obvious cases of discrimination on racial grounds.
+Of course, as we are dealing in this case with faith schools, the religious test has come under scrutiny in the educational context.
+But the test that is employed is nevertheless a religious one, as that is what faith schools are expected to do.
+An approach to this case which assumes that Jews are being divided into separate subgroups on the grounds of ethnicity is an artificial construct which Jewish law, whether Orthodox or otherwise, does not recognise.
+The Act invites this approach, as it is clear that M was being treated less favourably than other persons and this raises the question whether this was on racial grounds.
+But it must be handled with very great care.
+As both Lord Phillips in para 9 and Lady Hale in para 54 have emphasised, no one in this case is suggesting that the policy that JFS has adopted is racist.
+The choice of words is important, and I too would wish to avoid that appalling accusation.
+The use of the word racial is inevitable, however, although the discrimination that is perceived in this case is on grounds of ethnicity.
+In DH v Czech Republic (2007) 47 EHRR 59, para 176, the European Court said: Discrimination on account of, inter alia, a persons ethnic origin is a form of racial discrimination.
+Racial discrimination is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction.
+It is for this reason that the authorities must use all available means to combat racism, thereby reinforcing democracys vision of a society in which diversity is not perceived as a threat but as a source of enrichment.
+One has to ask whether, on the facts of this case, we really are in that territory.
+The problem is that section 1(1) of the 1976 Act which prescribes direct discrimination does not distinguish between discrimination which is invidious and discrimination which is benign.
+A defence of justification is not available.
+In Mandla v Dowell Lee [1983] 2 AC 548 Lord Fraser of Tullybelton discussed the meaning of the word ethnic in the context of the refusal by a private school to admit a Sikh pupil whose religion and culture would not permit him to comply with the schools rules on uniform.
+At p 562 he said: For a group to constitute an ethnic group in the sense of the 1976 Act, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics.
+Some of these characteristics are essential; others are not essential but one or more of them will commonly be found and will help to distinguish the group from the surrounding community.
+The conditions which appeared to him to be essential were (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive; (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance.
+At p 564 he quoted with approval a passage from the judgment of Richardson J in King Ansell v Police [1979] 2 NZLR 531, 543, where he said: a group is identifiable in terms of its ethnic origins if it is a segment of the population distinguishable from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms is a common racial stock.
+It is that combination which gives them an historically determined social identity in their own eyes and in the eyes of those outside the group.
+They have a distinct social identity based not simply on group cohesion and solidarity but also on their belief as to their historical antecedents.
+It is not disputed that the group or groups to which Jews belong are ethnic according to this analysis.
+They have a shared history which extends back for over three thousand years.
+Their traditions and practices are maintained with much devotion and attention to detail, in a manner that is designed to keep the memory of that shared history alive.
+Less favourable treatment of a person because he is, or is thought to be Jewish may therefore be regarded as discrimination against him on racial grounds: see, for example, Seide v Gillette Industries Ltd [1980] IRLR 427, paras 21 22, per Slynn J.
+In that case the Employment Appeal Tribunal upheld the tribunals decision that the anti semitic comments that were made by Mr Seides fellow worker were made because he was a member of the Jewish race, not because of his religion.
+The same would be true if he were to be discriminated against because he is, or is thought to be, of a particular Jewish ethnic origin.
+In Mandla v Dowell Lee at p 562 Lord Fraser said that the 1976 Act is not concerned at all with discrimination on religious grounds.
+But a finding that a person was treated less favourably on religious grounds does not exclude the possibility that he was treated in that way on racial grounds also.
+I agree with Lord Clarke that it would be wrong in principle to treat this as an either/or question.
+Direct discrimination
+At one level there is no dispute about the reason why M was denied admission to JFS.
+The schools admissions policy was based on the guidance which it received from the OCR.
+Thus far the mental processes of the alleged discriminator do not need to be examined to discover why he acted as he did.
+The dispute between the parties is essentially one of categorisation: was the OCRs guidance given on grounds of race, albeit for a religious reason, or was it solely on religious grounds? For JFS, Lord Pannick QC submits that M failed only because JFS was giving priority to members of the Jewish faith as defined by the religious authority of that faith, which was a religious criterion.
+That was the ground of the decision.
+The Court of Appeal was wrong to hold that the ground was that M was not regarded as of Jewish ethnic origin, and that the theological reasons for taking this view was the motive for adopting the criterion: para 29.
+For E, Ms Rose submits that Lord Pannicks submissions confused the ground for the decision with its motive.
+The ground spoke for itself.
+It was that M was not regarded according to Orthodox Jewish principles as Jewish.
+This meant that he was being discriminated against on grounds relating to his ethnicity.
+This was racial discrimination within the meaning of the statute.
+These contradictory assertions must now be resolved.
+I wish to stress again that the issue is not simply whether M is a member of a separate ethnic group from those who are advantaged by JFSs admissions policy.
+That is not where the argument in this case stops.
+I agree with Lord Rodger that the decision of the majority which, as it respectfully seems to me, does indeed stop there leads to extraordinary results.
+As he puts it in para 226, one cannot help feeling that something has gone wrong.
+Lord Brown makes the same point when, in para 247 he stresses the importance of not expanding the scope of direct discrimination and thereby placing preferential treatment which could be regarded as no more than indirectly discriminatory beyond the reach of possible justification.
+The crucial question is whether M was being treated differently on grounds of that ethnicity.
+The phrase racial grounds in section 1(1)(a) of the 1976 Act requires us to consider what those words really mean whether the grounds that are revealed by the facts of this case can properly be described as racial.
+Only if we are satisfied that this is so would it be right for this Court to hold that this was discrimination on racial grounds.
+The development of the case law in this area has not been entirely straightforward.
+The problem is that, in a new and difficult field, the need for the court to clarify one issue may result in a principle being stated too broadly.
+This may make it more difficult for it to resolve other different but interlocking issues when they arise at a later date.
+In Ealing London Borough Council v Race Relations Board [1972] AC 342 the House of Lords considered the phrase on the ground of colour, race or ethnic or national origins in section 1(1) of the Race Relations Act 1968 in the context of an application for housing by a Polish national It held (Lord Kilbrandon dissenting) that national origins meant something different from nationality and that it did not include it since, as Viscount Dilhorne put it at p 358, the word national in national origins means national in the sense of race and not citizenship.
+There was no discussion of the meaning of the word ethnic.
+Lady Hale has commented that Lord Simon of Glaisdales speech at p 364 is an interesting example of stereotyping which might raise judicial eyebrows today: The Judicial House of Lords (2009), p 578, fn 32.
+The House of Lords returned to this topic in Mandla v Dowell Lee [1983] 2 AC 548.
+By then nationality had been included in the definition of racial grounds in section 3(1) of the Race Relations Act 1976.
+There was still no statutory prohibition of discrimination on religious grounds.
+A Sikh schoolboy had been refused a place at a private school because he would not agree to cut his hair and stop wearing a turban.
+The question was whether this was discrimination on grounds of race as defined in section 3(1).
+The essential issue was how wide a meaning should be given to ethnic origins.
+Lord Fraser, with the agreement of the other members of the Appellate Committee, gave these words a wide meaning: see para 185, above.
+The next important case, which as this case shows may have sent the laws development off in the wrong direction, was R v Birmingham City Council, Ex p Equal Opportunities Commission [1989] AC 1155.
+The council had three grammar schools for girls and five grammar schools for boys.
+This was a historical fact, and it was not the councils policy to discriminate.
+But the House held that it was unlawful for it to provide fewer grammar school places for girls than for boys.
+The decision was plainly right.
+But the reasons given by Lord Goff of Chieveley, with whom the other members of the Appellate Committee agreed, have led to difficulty in other cases.
+At p 1194 he said: The intention or motive of the defendant to discriminate, though it may be relevant so far as remedies are concerned is not a necessary condition of liability; it is perfectly possible to envisage cases where the defendant had no such motive, and yet did in fact discriminate on the ground of sex.
+That decision was applied in James v Eastleigh Borough Council [1990] 2 AC 751.
+This was a case about a municipal swimming pool where there was free swimming for children under three years of age and for persons who had reached the state pension age, which was then 65 for men and 60 for women.
+Mr James and his wife, who were both aged 61, went swimming and he alone was charged a sum of money for doing so.
+He complained of sex discrimination.
+The House of Lords, by a majority of three to two, reversed the Court of Appeal and upheld his complaint.
+It held that the Court of Appeal had been wrong to treat this as a case of indirect discrimination since the councils policy was, as Lord Ackner put it at p 769, inherently discriminatory.
+Lord Goff in James deprecated the use, in the present context, of words such as intention, motive, reason and purpose: p 773.
+He added, at pp 773 774, that: taking the case of direct discrimination under section 1(1)(a) of the Act, I incline to the opinion that, if it were necessary to identify the requisite intention of the defendant, that intention is simply an intention to perform the relevant act of less favourable treatment.
+Whether or not the treatment is less favourable in the relevant sense, ie on the ground of sex, may derive either from the application of a gender based criterion to the complainant, or from selection by the defendant of the complainant because of his or her sex; but in either event, it is not saved from constituting unlawful discrimination by the fact that the defendant acted from a benign motive.
+More recent decisions of the House of Lords show, however, that where the facts are not so clear cut a more nuanced approach may be called for.
+The need to establish an objective link between the conduct of the alleged discriminator and the unequal treatment complained of does not exclude the need to explore why the alleged discriminator acted as he did.
+As the division of Jews into separate subgroups is in itself such an artificial concept (see paras 183 and 184 above), that seems to me to be the real issue in this case.
+In Nagarajan v London Regional Transport [2000] 1 AC 501, 510 511 Lord Nicholls of Birkenhead made an important statement of principle which has often been cited and applied: Thus, in every case it is necessary to inquire why the complainant received less favourable treatment.
+This is the crucial question.
+Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator.
+Treatment, favourable or unfavourable, is a consequence which follows from a decision.
+Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming.
+Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.
+Having thus identified the ground of the decision the reason why as the crucial question, he went on to deal with the question of motive: The crucial question just mentioned is to be distinguished sharply from a second and different question: if the discriminator treated the complainant less favourably on racial grounds, why did he do so? The latter question is strictly beside the point when deciding whether an act of racial discrimination occurred.
+For the purposes of direct discrimination under section 1(1)(a), as distinct from indirect discrimination under section 1(1)(b), the reason why the alleged discriminator acted on racial grounds is irrelevant.
+Racial discrimination is not negatived by the discriminators motive or intention or reason or purpose (the words are interchangeable in this context) in treating another person less favourably on racial grounds.
+In particular, if the reason why the alleged discriminator rejected the complainants job application was racial, it matters not that his intention may have been benign.
+As for Lord Goffs test in Birmingham, which Lord Bridge had described as objective and not subjective, Lord Nicholls said however that: He is not to be taken as saying that the discriminators state of mind is irrelevant when answering the crucial, anterior question: why did the complainant receive less favourable treatment? [my emphasis] Developing the same point in Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48, 1 WLR 1947, para 29, Lord Nicholls said that the question was: [W]hy did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test.
+At p 512 in Nagarajan Lord Nicholls, considering the question of subconscious motivation, added these words: Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated.
+An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicants race.
+After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did.
+Conduct of this nature by an employer, when the inference is legitimately drawn, falls squarely within the language of section 1(1)(a).
+The employer treated the complainant less favourably on racial grounds.
+I would draw from this passage the proposition that if, after careful and thorough investigation, the tribunal were to conclude that the employers actions were not racially motivated that race was not the reason why he acted as he did it would be entitled to draw the inference that the complainant was not treated less favourably on racial grounds.
+The use of the words motivated and reason in the passage which I have just quoted appears at first sight not to be in harmony with the passage which I have quoted from p 511 where he said that racial discrimination is not negatived by the discriminators motive or intention or reason or purpose (the words are interchangeable in this context) in treating another person less favourably on racial grounds.
+But I do not think that, if these passages taken together are properly analysed, there is any inconsistency.
+The point that he was making on p 512 was that an examination of the employers motivation, or the reason why he acted as he did, may be highly relevant to a determination of the crucial question: was this discrimination on racial grounds.
+On the other hand, once that conclusion has been reached, the fact that there may have been a benign reason for the discrimination is beside the point.
+In other words, the statutory ground of discrimination, once it has been established, is unaffected by the underlying motive for it.
+This may be misguided benevolence as in James, or passive inertia as in Birmingham or racial hatred as in Seide.
+In the Birmingham case neither the reason nor the underlying motive left much room for argument.
+It was enough that the council was responsible for the continuation of the discriminatory system of grammar school education.
+In James there was a worthy underlying motive but, as the sole criterion that had been chosen was the unequal pension ages for men and women, the reason was clearly gender based.
+But where the complaint is that a black or female employee has not been selected for promotion, or has been taken off some particular duty, there will usually be a disputed issue as to the reason.
+This will require the tribunal to inquire more closely into the mind of the alleged discriminator.
+This is illustrated by Nagarajan and also by Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, [2003] ICR 337.
+I would hold therefore that Lord Goffs rejection of a subjective approach was expressed too broadly.
+The proposition that the alleged discriminators motive, or reason, is irrelevant needs therefore to be reformulated.
+It all depends on the stage of the enquiry at which these words are being used.
+At the initial stage, when the question is whether or not this was discrimination on racial grounds, an examination of the alleged discriminators motivation may be not only relevant but also necessary, to reach an informed decision as to whether this was a case of racial discrimination.
+As the issue is a subjective one, his mental processes will, as Lord Nicholls said at p 511, call for some consideration.
+Everything that may have passed through his mind that bears on the decision, or on why he acted as he did, will be open to consideration.
+But once it has been determined that this was a case of racial discrimination, that is an end of the matter.
+The treatment cannot be excused by looking beyond it to why he decided to act in that way.
+I regret the fact that Lord Clarke does not agree with this analysis.
+As I understand his position, he prefers a test which makes the state of mind of the alleged discriminator irrelevant where the criteria he adopts are inherently discriminatory: see paras 127, 132.
+The question which divides us is whether his approach is supported by Lord Nicholls statements in Nagarajan and later in Khan.
+Lord Clarkes reading of the passage in Nagarajan which he has highlighted in para 139 of his opinion is that in the obvious cases, where discrimination is inherent, there is a prohibition on looking at the motivation of the alleged discriminator: see also his para 142.
+But Lord Nicholls does not say this.
+He makes no mention of any such prohibition.
+It may be that the tribunal will not need to look at the alleged discriminators mental processes in obvious cases, as his mental state is indeed obvious.
+But he does not say that the tribunal is precluded from doing so.
+Lord Steyn said in Nagarajan at pp 520H 521A that conscious motivation is not required.
+But, as he made clear, this does not mean that the alleged discriminators state of mind is always irrelevant.
+Confirmation that this is not Lord Nicholls approach is to be found in the last full paragraph on p 511 of Nagarajan, where he explains Lord Bridges description of the test which Lord Goff adopted in Birmingham.
+Lord Bridge described it as objective.
+But Lord Nicholls said that he is not to be taken as saying that there is no investigation into the mind of the alleged discriminator.
+He does not draw any distinctions here between cases like Birmingham and James, which Lord Clarke describes as cases of inherent discrimination (see para 142, above), and other types of cases.
+The point that he is making is that even in obvious cases such as Birmingham the tribunal is not precluded from looking at the state of mind of the discriminator.
+The passage from his speech in Khan to which I refer in para 193 supports this conclusion.
+He describes the test as a subjective one.
+Here again he does not distinguish between different types of cases.
+I believe therefore that an accurate reading of what Lord Nicholls actually said, and did not say, supports my analysis.
+There are few reported cases in which the tribunal has had to decide as between two prohibited reasons, such as race and gender or (since 2006) race and religion or belief.
+The only authority referred to by the parties was Seide v Gillette Industries Ltd [1980] IRLR 427.
+The appeal turned on the question of causation relating to the aftermath of a series of incidents of anti Semitic abuse of Mr Seide by a fellow worker.
+The report does not give any details of the content of the abuse.
+The only relevant passage in the judgment is at paras 21 22, recording that it was common ground that Jewish could refer to a member of an ethnic group or to a member of a religious faith, and that the tribunals decision, which it was entitled to reach on the facts, was that Mr Seide was subjected to anti Semitic abuse because of his Jewish origin.
+It is reasonable to infer that it would have been open to the members of the tribunal to conclude that the abuse was as much on the ground of ethnicity as on the ground of religion and that that was enough to constitute discrimination on a prohibited ground.
+This would be consistent with the principle that this is not an either/or question.
+As for this case, it is as different from Seide as it is possible to imagine.
+This was not a case of foul mouthed anti Semitic abuse.
+Those who are said to have been responsible for the discrimination, whether at the level of the school authorities, the OCR or the Chief Rabbi himself, are thoughtful, well intentioned and articulate.
+I would accept Lord Pannicks submission that the Chief Rabbi was not in the least interested in Ms ethnicity.
+The OCR has left us in no doubt as to why it was acting as it did.
+If the Chief Rabbi were to be asked the question that was framed by Lord Nicholls, he would say his reason was that this was what was required of him by fundamental Orthodox Jewish religious law.
+The question whether or not M was Jewish in the secular sense was of no interest to him at all.
+His advice was based simply and solely on his understanding of Jewish law.
+Jewishness based on matrilineal descent from Jewish ancestors has been the Orthodox religious rule for many thousands of years, subject only to the exception for conversion.
+To say that his ground was a racial one is to confuse the effect of the treatment with the ground itself.
+It does have the effect of putting M into an ethnic Jewish group which is different from that which the Chief Rabbi recognises as Jewish.
+So he has been discriminated against.
+But it is a complete misconception, in my opinion, to categorise the ground as a racial one.
+There is nothing in the way the OCR handled the case or its reasoning that justifies that conclusion.
+It might have been justified if there were reasons for doubting the Chief Rabbis frankness or his good faith.
+But no one has suggested that he did not mean what he said.
+As Lord Rodger points out, to reduce the religious element to the status of a mere motive is to misrepresent what he is doing.
+This case is quite different too from the example of the Dutch Reformed Church that was referred to by Sedley LJ in the Court of Appeal, para 30, and referred to again during the argument in this court.
+The discrimination that its belief invited, on grounds of colour, was overtly racist.
+A court would have no difficulty in dismissing the religious belief as providing no justification for it at all; see also Bob Jones University v United States, 461 US 574 (1983), where the US Supreme Court upheld the decision of the Inland Revenue Service to revoke the Universitys tax exempt status because, while permitting unmarried people who were black to enrol as students, it had adopted a racially discriminatory policy of denying admission to applicants engaged in an interracial marriage or known to advocate interracial marriage or dating although it had been based on sincerely held religious beliefs.
+Beliefs of that kind are not worthy of respect in a democratic society or compatible with human dignity: Campbell and Cosans v United Kingdom (1982) 4 EHRR 293, para 36.
+Here the discrimination between those who are, and those who are not, recognised as Jewish was firmly and inextricably rooted in Orthodox Jewish religious law which it is the duty of the Chief Rabbi to interpret and apply.
+The Chief Rabbis total concentration on the religious issue, to the exclusion of any consideration of ethnicity, can be illustrated by two contrasting examples.
+Several similar examples were referred to in the course of argument.
+A is the child of parents, and the grandchild of grandparents, all of whom led wholly secular lives similar to those of their largely secular neighbours.
+They never observed Jewish religious law or joined in the social or cultural life of the Jewish communities where they lived, but there is unimpeachable documentary evidence that more than a century ago the mother of As maternal grandmother was converted in an Orthodox synagogue.
+To the OCR A is Jewish, despite his complete lack of Jewish ethnicity.
+By contrast B is the child of parents, and the grandchild of grandparents, all of whom have faithfully observed Jewish religious practices and joined actively in the social and cultural life of the Jewish community, but there is unimpeachable documentary evidence that more than a century ago the mother of Bs maternal grandmother was converted in a non Orthodox synagogue.
+To the OCR B is not Jewish, despite his obvious Jewish ethnicity.
+Descent is only necessary because of the need, in these examples, to go back three generations.
+But having gone back three generations, the OCR applies a wholly religious test to what has been identified as the critical event.
+For the reasons given by Lord Rodger, the part that conversion plays in this process is crucial to a proper understanding of its true nature.
+It cannot be disregarded, as Lady Hale suggests in para 66, as making no difference.
+It shows that the inquiry is about a religious event to be decided according to religious law.
+For these reasons I would hold that the decision that was taken in Ms case was on religious grounds only.
+This was not a case of direct discrimination on racial grounds.
+On this issue, in respectful agreement with Lord Rodger, Lord Walker and Lord Brown, I would set aside the decision reached by the Court of Appeal.
+Indirect discrimination
+An examination of the question whether the application of the oversubscription policy to M amounted to indirect discrimination within the meaning of section 1(1A) of the Race Relations Act 1976 falls into two parts: (1) did the policy put persons of the same race or ethnic or national origins as M at a particular disadvantage when compared with other persons: section 1(1A)(a) and (b); and, if so, (2) can JFS show that the policy was a proportionate means of achieving a legitimate aim: section 1(1A)(c).
+Lord Pannick did not seek to argue that the first question should be answered in the negative.
+I think that he was right not to do so, as it is clear that M and all other children who are not of Jewish ethnic origin in the maternal line, together with those whose ethnic origin is entirely non Jewish, were placed at a disadvantage by the oversubscriptions policy when compared with those who are of Jewish ethnic origin in the maternal line.
+They may in theory gain entry to the school by undergoing a process of conversion that is approved by the OCR, but this in itself is a severe disadvantage.
+It appears that no child has ever been admitted to JFS on this basis.
+The issue on this branch of the case, therefore, is whether JFS can show that the policy had a legitimate aim and whether the way it was applied was a proportionate way of achieving it.
+The burden is on JFS to prove that this was so: R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293, [2006] 1 WLR 3213, per Mummery LJ at paras 131 132.
+The Court of Appeal accepted the submission that the admission criteria were explicitly related to ethnicity and so incapable of constituting or forming part of a legitimate aim and that it was not possible to justify indirect discrimination by reliance on the very thing that made the test discriminatory: para 45.
+But I think that is to misapply the test that the Act lays down.
+I agree with Lord Brown that there was a failure by the Court to address the questions of legitimate aim and proportionality on the assumption that the admissions policy was not directly discriminatory.
+For E, Ms Rose submitted that if the aim pursued was itself related to the ethnic origins of the pupils it was not capable of being a legitimate aim.
+This was how Lord Fraser put it in Mandla v Dowell Lee [1983] 2 AC 548, 566; see also Orphanos v Queen Mary College [1985] AC 761, 772.
+Those were indirect discrimination cases, but they were decided under section 1(1)(b) of the 1976 Act which has now been superseded by section 1(1A): see para [170], above.
+An aim which is itself discriminatory in character cannot be legitimate for the purposes of sections 1(1A).
+So the assumption on which the argument about indirect discrimination proceeds is that, for the reasons I have given, JFSs admission criteria did not discriminate on grounds of ethnicity.
+The question is whether, given that persons of given ethnic origins were at a particular disadvantage when compared with other persons, the school nevertheless had an aim which was legitimate.
+That is a different question.
+In the Administrative Court Munby J said that the aim was to educate those who, in the eyes of the OCR, are Jewish, irrespective of their religious beliefs, practices or observances, in a school whose culture and ethos is that of Orthodox Judaism: para 192.
+Developing this argument, Lord Pannick submitted that it was legitimate for a faith school to give preference to those children who are members of the faith as recognised by the OCR.
+If children in Ms position were admitted to the school there would inevitably be fewer places for those recognised as Jewish by the OCR.
+The policy of the government was to allow schools to give priority to those of the religion for which they have been designated.
+It was open to the school, under the 2007 Code, to adopt criteria based on membership or practice.
+As its ethos was that of Orthodox Judaism, which the Chief Rabbi seeks to promote, membership was a legitimate criterion.
+If that criterion was not adopted it would open the door to children who were not recognised as Jewish and virtually exclude those who were.
+As against this, Ms Rose submitted that it was impossible to ignore the close relationship between the criterion of membership and the ethnic origins of the children.
+This made it impossible for JFS to justify the criterion as legitimate.
+In my opinion, however, it is necessary to look at all the circumstances to test the issue of legitimacy.
+The assumption on which section 1(1A)(c) proceeds it that the treatment is open to the objection that it puts a person at a disadvantage in comparison with persons not of his race or ethnic or national origins.
+The question is whether treatment which has that effect can nevertheless be shown to have a legitimate aim.
+Questions about the motive and aims of the alleged discriminator come in at this stage.
+An aim may be held to be legitimate even though it discriminates in the ways referred to in section 1(1A)(a) and (b).
+In my opinion, for the reasons that Lord Brown gives in paras 252 253, JFS has shown that its aim is a legitimate one.
+The essential point is that a faith school is entitled to pursue a policy which promotes the religious principles that underpin its faith.
+It is entitled to formulate its oversubscriptions criteria to give preference to those children whose presence in the school will make it possible for it to pursue that policy.
+The legitimacy of the policy is reinforced by the statutory background.
+It has not emerged out of nowhere.
+It has been developed in accordance with the Code which permits faith schools to define their conditions for admission by reference either to membership of the faith or to practice.
+The justification for the Code lies exclusively in a belief that those who practise the faith or are members of it will best promote the religious ethos of the school.
+In Orphanos v Queen Mary College [1985] AC 761, 772 773 Lord Fraser said that a typical example of a requirement which could be justified without regard to the nationality or race of the person to whom it was applied was Panesar v Nestl Co Ltd (Note) [1980] ICR 144, where it was held that a rule forbidding the wearing of beards in the respondents chocolate factory was justifiable on hygienic grounds notwithstanding that the proportion of Sikhs who could conscientiously comply with it was considerably smaller than the proportion of non Sikhs who could comply with it.
+It was, he said, purely a matter of public health and nothing whatever to do with racial grounds.
+I would apply the same reasoning to this case.
+This leaves, however, the question of proportionality.
+The Court of Appeal, having concluded that the criterion did not have an aim that was legitimate, did not attempt to examine this issue: para 47.
+Before Munby J it was submitted by Ms Rose that JFSs admissions policy did not properly balance the impact of the policy on those like M adversely affected by it and the needs of the school: para 199.
+He rejected this argument for two reasons.
+One was that the kind of policy that is in question in this case is not materially different from that which gives preference in admission to a Muslim school to those who were born Muslim or preference in admission to a Catholic school to those who have been baptised.
+The other was that an alternative admissions policy based on such factors as adherence or commitment to Judaism would not be a means of achieving JFSs aims and objectives: paras 200 201.
+In my opinion these reasons miss the point to which Ms Roses submission was directed.
+The question is whether putting M at a disadvantage was a proportionate means of achieving the aim of the policy.
+It was for JFS to show that they had taken account of the effect of the policy on him and balanced its effects against what was needed to achieve the aim of the policy.
+As Peter Gibson LJ noted in Barry v Midland Bank plc [1999] ICR 319, 335 336 the means adopted must be appropriate and necessary to achieving the objective.
+I do not think that JFS have shown that this was so.
+Lord Pannick submitted that there was no other way of giving effect to the policy.
+If the school were to admit M, this would be to deny a place to a child who was regarded as Jewish by the OCR.
+This was inevitable as the school was oversubscribed.
+But what is missing is any sign that the schools governing body addressed their minds to the impact that applying the policy would have on M and comparing it with the impact on the school.
+As Ms Rose pointed out, the disparate impact of the policy on children in Ms position was very severe.
+They are wholly excluded from the very significant benefit of state funded education in accordance with their parents religious convictions, whereas there are alternatives for children recognised by the OCR although many in the advantaged group do not share the schools faith based reason for giving them priority.
+The school claimed to serve the whole community.
+But the way the policy was applied deprived members of the community such as M, who wished to develop his Jewish identity, of secondary Jewish education in the only school that is available.
+There is no evidence that the governing body gave thought to the question whether less discriminatory means could be adopted which would not undermine the religious ethos of the school.
+Consideration might have been given, for example, to the possibility of admitting children recognised as Jewish by any of the branches of Judaism, including those who were Masorti, Reform or Liberal.
+Consideration might have been given to the relative balance in composition of the schools intake from time to time between those recognised as Jewish by the OCR who were committed to the Jewish religion and those who were not, and as to whether in the light of it there was room for the admission of a limited number of those committed to the Jewish religion who were recognised as Jewish by one of the other branches.
+Ms Rose said that the adverse impact would be much less if a different criterion were to be adopted.
+But the same might be true if the criterion were to be applied less rigidly.
+There may perhaps be reasons, as Lord Brown indicates (see para 258), why solutions of that kind might give rise to difficulty.
+But, as JFS have not addressed them, it is not entitled to a finding that the means that it adopted were proportionate.
+There are cases, of which R(SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100 and Belfast City Council v Miss Behavin Ltd [2007] UKHL 19, [2007] 1 WLR 1420 are the best examples, where it can be said in the human rights context that the fact that the public authority had applied its mind to the issue is immaterial.
+This is because in that context the issue is one of substance, not procedure.
+Lord Hoffmann in Governors of Denbigh High School, para 68, gave this explanation: In domestic judicial review, the court is usually concerned with whether the decision maker reached his decision in the right way rather than whether he got what the court might think to be the right answer.
+But article 9 [of the European Convention on Human Rights] is concerned with substance, not procedure.
+It confers no right to have a decision made in any particular way.
+What matters is the result: was the right to manifest a religious belief restricted in a way which is not justified under article 9(2)?
+The problem that JFS faces in this case is a different one, as the context is different.
+Under section 1(1A)(c) of the Race Relations Act 1976 the onus is on it to show that the way the admissions policy was applied in Ms case was proportionate.
+It is not for the court to search for a justification for it: see Mummery LJs valuable and instructive judgment in R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213, paras 131 133.
+JFS failed to discharge its duty under section 71 of the Act to have regard to the need to eliminate discrimination.
+It is having to justify something that it did not even consider required justification.
+The question, as to which there is no obvious answer either way, was simply not addressed.
+As a result the court does not have the statistical or other evidence that it would need to decide whether or not the application of the policy in Ms case was proportionate.
+It may well be, as Lord Brown indicates, that devising a new oversubscriptions policy that is consistent with the schools legitimate aim would be fraught with difficulty.
+But it was for JFS to explore this problem and, having done so, to demonstrate that whatever policy it came up with was proportionate.
+So, although I do not arrive at this conclusion by the same route as Lord Mance, I agree with him that on the material before the Court the admissions policy cannot be held to have been justified.
+I would hold that, by applying the oversubscription criteria to M in a way that put him at a particular disadvantage when compared with others not of the same ethnicity by reason of matrilineal descent, JFS discriminated against him in breach of section 1(1A) of the Race Relations Act 1976, and that E is entitled to a declaration to that effect.
+The appeals on costs
+In its order for costs the Court of Appeal directed that the United Synagogue and the Secretary of State must each pay 20% of Es costs in the Court of Appeal and below, and that the Schools Adjudicator must pay 10% of those costs.
+The United Synagogue and the Secretary of State have both appealed, the United Synagogue formally and the Secretary of State informally, against that order to this court.
+I did not understand Mr Linden QC, who appeared for the Secretary of State, to press his informal appeal and, as it has no merit, I would dismiss it.
+But Mr Jaffey for the United Synagogue did make submissions in support of its appeal.
+His point was that the United Synagogue had intervened in the Administrative Court on the express basis that it would not be found liable in costs which was not challenged by any other party, and that the basis for its intervention had been endorsed by Munby J when he allowed it to intervene.
+He submitted that his client ought not to have been found liable by the Court of Appeal for the costs incurred at first instance, nor should it have been found liable for costs in the Court of Appeal as there was no appeal against the basis on which it had been permitted to intervene.
+The situation is more complicated than that brief summary might suggest.
+The nature of the United Synagogues intervention was transformed when the case reached the Court of Appeal.
+Lord Pannick QC, who had not appeared below, was instructed on its behalf and assumed much responsibility for presenting the case on behalf of JFS so much so, that when the case reached this court, he appeared for JFS and not for the United Synagogue.
+In that situation, as it had assumed a role that went well beyond that of an intervener, the Court of Appeal cannot be faulted for finding it liable for a share of the costs in that court.
+But I do not think that what happened in the Court of Appeal should deprive the United Synagogue of the protection against an order for costs that it sought and was granted in the Administrative Court.
+So I would recall that part of the Court of Appeals order.
+I would replace it by a finding that the United Synagogue must pay 20% of Es costs in the Court of Appeal but not below, and that 20% of Es costs at first instance must be borne by JFS in addition to the 50% that it has already been ordered to pay.
+Conclusion
+I would allow the appeal by JFS against the Court of Appeals finding that the Chief Rabbis criteria discriminated directly against M on racial grounds.
+I would however dismiss its appeal against the Court of Appeals finding that this was a case of indirect discrimination, although on different grounds.
+I would allow the appeal by the United Synagogue against the Court of Appeals order for costs to the extent that I have indicated.
+I would dismiss the Secretary of States appeal.
+LORD RODGER
+The claimant, E, is Jewish by matrilineal descent.
+By conviction, he is a Masorti Jew.
+Masorti Judaism differs in certain respects from what is generally called Orthodox Judaism.
+Masorti Jews adhere to a set of beliefs and practices which have their origins in Orthodox Judaism but which are not now the same.
+In particular, while both Masorti and Orthodox Judaism believe that the written and oral Torah (from which the halakhah is derived) are unchangeable and bind Jews today, they differ in their interpretation of some parts of the halakah.
+Es wife converted to Judaism in an independent synagogue.
+At the risk of some slight imprecision, her conversion can be described as having taken place under non Orthodox auspices.
+Since the requirements for Orthodox conversion reflect Orthodox rather than Progressive or Masorti teachings and practices, her conversion is recognised by the Masorti authorities, but is not recognised by the Office of the (Orthodox) Chief Rabbi.
+Therefore, while the Masorti authorities recognise her son, M, as Jewish, the Office of the Chief Rabbi does not.
+But, of course, both E and M consider that M is Jewish, on the basis that his mother was Jewish when he was born.
+JFS is designated by the Secretary of State under the School Standards and Framework Act 1998 as having a Jewish religious character.
+The relevant regulations provide that the Schools governing body (the governors) must consult the Chief Rabbi about its admission arrangements.
+Having done so, the governors adopted an admissions policy which provided that, if the School were oversubscribed, then only children who were recognised as being Jewish by the Office of the Chief Rabbi would be considered for admission.
+E wanted to get M into the School.
+It has an excellent reputation and has been oversubscribed for many years.
+So, when E applied to have M admitted, hardly surprisingly, his application was rejected because the Office of the Chief Rabbi would not have recognised M as being Jewish.
+Indeed the point was so clear that E did not apply to the London Beth Din for a determination of Ms status in Orthodox Jewish law.
+In theory, the School would have considered admitting him if he had undertaken to convert under Orthodox auspices.
+But the process would have taken several years and have involved M adhering to a set of beliefs that are materially different from those of Masorti Judaism.
+E and M decided not to pursue that option.
+The purpose of designating schools as having a religious character is not, of course, to ensure that there will be a school where Jewish or Roman Catholic children, for example, can be segregated off to receive good teaching in French or physics.
+That would be religious discrimination of the worst kind which Parliament would not have authorised.
+Rather, the whole point of such schools is their religious character.
+So the whole point of designating the Jewish Free School as having a Jewish character is that it should provide general education within a Jewish religious framework.
+More particularly, the education is to be provided within an Orthodox religious framework.
+Hence the oversubscription admission criteria adopted after consulting the Chief Rabbi.
+The Schools policy is to give priority to children whom the Orthodox Chief Rabbi recognises as Jewish.
+From the standpoint of Orthodoxy, no other policy would make sense.
+This is because, in its eyes, irrespective of whether they adhere to Orthodox, Masorti, Progressive or Liberal Judaism, or are not in any way believing or observant, these are the children and the only children who are bound by the Jewish law and practices which, it is hoped, they will absorb at the School and then observe throughout their lives.
+Whether they will actually do so is, of course, a different matter.
+The dispute can be summarised in this way.
+E, who is himself a Masorti Jew, wants his son, whom he regards as Jewish, to be admitted to the School as a Jewish child.
+He complains because the School, whose admission criteria provide that only children recognised as Jewish by the Office of the (Orthodox) Chief Rabbi are to be considered for admission, will not consider admitting his son, who is recognised as Jewish by the Masorti authorities but not by the Chief Rabbi.
+If anything, this looks like a dispute between two rival religious authorities, the Office of the Chief Rabbi and the Masorti authorities, as to who is Jewish.
+But E claims and this Court will now declare that, when the governors refused to consider M for admission, they were actually treating him less favourably than they would have treated a child recognised as Jewish by the Office of the Chief Rabbi on racial grounds: Race Relations Act 1976, section 1(1)(a).
+The decision of the majority means that there can in future be no Jewish faith schools which give preference to children because they are Jewish according to Jewish religious law and belief.
+If the majority are right, expressions of sympathy for the governors of the School seem rather out of place since they are doing exactly what the Race Relations Act exists to forbid: they are refusing to admit children to their school on racial grounds.
+That is what the Courts decision means.
+And, if that decision is correct, why should Parliament amend the Race Relations Act to allow them to do so? Instead, Jewish schools will be forced to apply a concocted test for deciding who is to be admitted.
+That test might appeal to this secular court but it has no basis whatsoever in 3,500 years of Jewish law and teaching.
+The majoritys decision leads to such extraordinary results, and produces such manifest discrimination against Jewish schools in comparison with other faith schools, that one cant help feeling that something has gone wrong.
+The crux of the matter is whether, as the majority hold, the governors actually treated M less favourably on grounds of his ethnic origins.
+They say the governors did so, but for a bona fide religious motive.
+If that is really the position, then, as Lord Pannick QC was the first to accept on their behalf, what the governors did was unlawful and their bona fide religious motive could not make the slightest difference.
+But to reduce the religious element in the actions of those concerned to the status of a mere motive is to misrepresent what they were doing.
+The reality is that the Office of the Chief Rabbi, when deciding whether or not to confirm that someone is of Jewish status, gives its ruling on religious grounds.
+Similarly, so far as the oversubscription criteria are concerned, the governors consider or refuse to consider children for admission on the same religious grounds.
+The only question is whether, when they do so, they are ipso facto considering or refusing to consider children for admission on racial grounds.
+Lady Hale says that M was rejected because of his mothers ethnic origins which were Italian and Roman Catholic.
+I respectfully disagree.
+His mother could have been as Italian in origin as Sophia Loren and as Roman Catholic as the Pope for all that the governors cared: the only thing that mattered was that she had not converted to Judaism under Orthodox auspices.
+It was her resulting non Jewish religious status in the Chief Rabbis eyes, not the fact that her ethnic origins were Italian and Roman Catholic, which meant that M was not considered for admission.
+The governors automatically rejected M because he was descended from a woman whose religious status as a Jew was not recognised by the Orthodox Chief Rabbi; they did not reject him because he was descended from a woman whose ethnic origins were Italian and Roman Catholic.
+As in any complaint of racial discrimination, the point can be tested by reference to the appropriate comparator.
+The starting point is that both E and M believe M to be Jewish by descent.
+So E applied to the School to admit M on the basis that he was Jewish because his Italian Catholic mother had converted to Judaism before he was born.
+The mothers Jewish status as a result of her conversion was accordingly the only issue which the governors were asked to consider or did consider.
+They refused Es application because her conversion had been under non Orthodox auspices.
+Therefore the appropriate comparator is a boy with an Italian Catholic mother whom the governors would have considered for admission.
+He could only be a boy whose mother had converted under Orthodox auspices.
+The question then is: did the governors treat M, whose mother was an Italian Catholic who had converted under non Orthodox auspices, less favourably than they would have treated a boy, whose mother was an Italian Catholic who had converted under Orthodox auspices, on grounds of his ethnic origins? Plainly, the answer is: no.
+The ethnic origins of the two boys are exactly the same, but the stance of the governors varies, depending on the auspices under which the mothers conversion took place.
+Faced with a boy whose mother had converted under Orthodox auspices, the governors would have considered him for admission without pausing for a single second to enquire whether he or his mother came from Rome, Brooklyn, Siberia or Buenos Aires, whether she had once been a Roman Catholic or a Muslim, or whether he or she came from a close knit Jewish community or had chosen to assimilate and disappear into secular society.
+In other words, the ethnic origins of the child or his mother in the Mandla v Dowell Lee [1983] 2 AC 548 sense would not have played any part in the governors decision to admit him.
+All that would have mattered was that his mother had converted under Orthodox auspices.
+Equally, in Ms case, the governors did not refuse to consider admitting him on grounds of his Mandla ethnic origins.
+Even supposing that the governors knew about his origins, they were quite irrelevant and played no part in their decision.
+The governors were simply asked to consider admitting him as the son of a Jewish mother.
+They declined to do so because his mother had not converted under Orthodox auspices.
+It was her non Orthodox conversion that was crucial.
+In other words, the only ground for treating M less favourably than the comparator is the difference in their respective mothers conversions a religious, not a racial, ground.
+Since, therefore, when applying the religious test, the governors were not asked to consider, and did not actually consider, Ms ethnic origins, James v Eastleigh Borough Council [1990] 2 AC 751 and all the other cases to which the majority refer simply do not come into the picture.
+For these reasons, which are essentially those set out so clearly in the judgment of Munby J, and in agreement with the opinion of Lord Brown, I would hold that the governors did not discriminate against M directly on racial grounds.
+So far as indirect discrimination is concerned, again I agree with Lord Brown and indeed with Munby J.
+The aim of the School, to instil Jewish values into children who are Jewish in the eyes of Orthodoxy, is legitimate.
+And, from the standpoint of an Orthodox school, instilling Jewish values into children whom Orthodoxy does not regard as Jewish, at the expense of children whom Orthodoxy does regard as Jewish, would make no sense.
+That is plainly why the Schools oversubscription policy allows only for the admission of children recognised as Jewish by the Office of the Chief Rabbi.
+I cannot see how a court could hold that this policy is a disproportionate means of achieving the Schools legitimate aim.
+I would accordingly allow the Governing Bodys appeal and restore the order of Munby J.
+On the United Synagogues costs appeal, I agree with Lord Hope.
+LORD WALKER
+I respectfully agree with Lord Hope that this was a case of indirect, but not direct discrimination on grounds of ethnic origins contrary to section 1 of the Race Relations Act 1976 as amended.
+I do not wish to make any addition or qualification to the reasons set out in Lord Hopes judgment.
+But I do wish to express my respectful agreement with much of Lady Hales judgment, although we reach different conclusions.
+In particular I agree with her references to the conspicuously clear and thoughtful judgment of Mummery LJ in R (Elias) vs Secretary of State for Defence [2006] 1 WLR 3213.
+Lord Hope has rightly referred to Mummery LJs treatment (at paras 128 to 133, in the context of justification of indirect discrimination) of the significance of a failure to address the issue of potential discrimination, especially when section 71 of the Race Relations Act 1976 applies.
+But the whole of Mummery LJs discussion of the boundary between direct and indirect discrimination (paras 60 to 123) merits close attention.
+The division of opinion in this Court illustrates that the separateness and mutual exclusivity of direct and indirect discrimination, although immovably established as part of the law (for all the reasons given by Mummery LJ at paras 114 to 122), is sometimes elusive in practice.
+In consequence the sharp distinction between the impossibility of justifying direct discrimination in any circumstances, and the possibility of justifying indirect discrimination, sometimes seems a little arbitrary.
+LORD BROWN
+Jews of all denominations define membership of the Jewish religion by reference to descent or conversion.
+The question is one of status: you are a Jew if, whether by descent or conversion, your mother (or anyone else up the matrilineal line) was a Jew or if you yourself convert to Judaism.
+Orthodox Jews require that the conversion be recognised by the Office of the Chief Rabbi (OCR).
+Other denominations of Jewry (Masorti, Reform and Liberal) apply less exacting criteria for conversion.
+It is that which has given rise to the underlying dispute between the parties in this case.
+JFSs oversubscription admissions policy gives priority to those recognised by the OCR as Jewish.
+M, because his mother converted to Judaism under the auspices of a non Orthodox rabbi and not an orthodox rabbi, is not so recognised.
+There is much debate within the Jewish community about the proper standards to apply to conversion and many would like JFS to include within their admissions policy anyone recognised as Jewish by any of the denominations.
+Ms real complaint here is that in deciding who is a Jew the OCRs approach to conversion is misguided.
+That, however, is not an issue which is, or ever could be, before the Court.
+No court would ever intervene on such a question or dictate who, as a matter of orthodox religious law, is to be regarded as Jewish.
+Thus it is that this legal challenge has nothing to do with the standards of conversion to Judaism and who shall be recognised under religious law as Jews but instead, somewhat surprisingly at first blush, invites the Court to decide questions of racial discrimination.
+Is JFSs policy of giving priority in admissions to those recognised by the OCR as Jewish to be characterised and outlawed as direct racial discrimination contrary to section 1(1)(a) of the Race Relations Act 1976? Is the school on racial grounds (defined by section 3 of the Act to include the ground of ethnic origins) treating others less favourably? That is the central issue before the Court.
+Ms father (E), supported by the Equality and Human Rights Commission and the British Humanist Society, submits that those not recognised by JFS as Jews are being treated less favourably than those recognised as Jews (so much is obvious) on the ground of the ethnic origins of those not recognised i.e. because no one in their matrilineal line is recognised as Jewish.
+Integral to the argument is that any definition of Jewish status based on descent is necessarily dependent on ethnic origin and therefore to be regarded as racially discriminatory.
+In this case the argument arises in the context of an orthodox Jewish school and at the suit of a child who would be regarded as Jewish according to all other Jewish denominations.
+But the same argument could arise equally in the context of schools giving priority to children recognised as Jews by any other Jewish denomination.
+I repeat, all Jews define membership of their religion by reference to descent (or conversion).
+The contrary argument, advanced by JFS, United Synagogue, the Secretary of State for Children, Schools and Families, and the Board of Deputies of British Jews, is that those not recognised by the school as Jews are being treated less favourably not because of their ethnic origins a matter of total indifference to the OCR but rather because of their religion: they are not members of the Jewish religion whereas those preferred are.
+Of course, the reason they are not members of the Jewish religion is that their forebears in the matrilineal line (or, in the case of Liberal Jews, either ancestral line) were not Jews and in this sense their less favourable treatment is determined by their descent.
+The ground for their less favourable treatment, however, is religion, not race.
+Both arguments are to my mind entirely coherent and entirely respectable.
+Only one, however, can be correct.
+The difficulty in the case arises because of the obvious overlap here between the concepts respectively of religious and racial discrimination.
+If the ground for discrimination is racial, it is unlawful.
+If however the ground (and not merely the motive) is religious, that is lawful.
+The Equality Act 2006 for the first time outlawed religious discrimination inter alia with regard to school admissions but not in the case of oversubscribed designated faith schools like JFS.
+Plainly the 2006 Act cannot operate to legitimise what would otherwise be racial discrimination under the 1976 Act.
+One may note, however, that if Ms argument is correct, JFS (and all other Jewish schools, whether maintained or independent, whose admissions criteria similarly depend upon the child being recognised under religious law as Jewish) have been operating an unlawful directly racially discriminatory policy for upwards of 30 years.
+There can be no doubt that Jews, including those who have converted to Judaism, are an ethnic group.
+That, since the decision of the House of Lords in Mandla v Dowell Lee [1983] 2 AC 548, is indisputable.
+And it is plain too why the courts have given a wide definition to the phrase ethnic origins so as to provide comprehensive protection to those suffering discrimination on racial grounds.
+Manifestly Jews and those perceived by discriminators to be Jews have welcomed such an approach and benefit from it.
+It by no means follows, however, that to discriminate against a person on the ground that he or someone else either is or is not Jewish is therefore to discriminate against him on racial grounds (as the Court of Appeal concluded at paragraph 32 of its judgment).
+That to my mind is a considerable over simplification of an altogether more difficult problem.
+This is perhaps best illustrated by reference to Ms position relative to those benefited under JFSs admissions policy.
+True, M was refused admission because his mother, and therefore he himself, although plainly both ethnically Jewish in the Mandla sense, were not recognised by the OCR as Jewish.
+But those granted admission under the policy were admitted for the very reason that they were recognised as Jewish.
+Does the 1976 Act really outlaw discrimination in favour of the self same racial group as are said to be being discriminated against? I can find no suggestion of that in any of the many authorities put before us.
+Nor can I see a parallel between the present case and the example apparently thought indistinguishable by the Court of Appeal of the Dutch Reformed Church of South Africa who until recently honestly believed that God had made black people inferior and had destined them to live separately from whites.
+The discrimination there was plainly against blacks and in favour of whites self evidently, therefore, on the ground of race and irredeemable by reference to the Churchs underlying religious motive.
+Ethnic Jews and Jews recognised as members of the religion, distinguishable as groups though they are, clearly overlap.
+Not so blacks and whites.
+What I am suggesting here is that it is quite unrealistic, given that those being treated less favourably and those being treated more favourably by JFSs policy are all (save, of course, for those who have no connection with Judaism whatsoever) in the same ethnic group, to regard the policy as discriminatory on racial rather than religious grounds.
+I recognise, of course, that under section 3(2) of the 1976 Act a particular racial group within a wider racial group still enjoys protection under the Act.
+The point I am making, however, is that the differential treatment between Jews recognised by the OCR and those not so recognised within the wider group of ethnic Jews (no less obviously than the differential treatment between the former and those with no connection whatever to Judaism) is plainly on the ground of religion rather than race.
+Still less does it seem to me that this case is covered by the House of Lords decision in James v Eastleigh Borough Council [1990] 2 AC 751.
+Once it was recognised that the Council there might just as well have said that entry to its swimming pools was free to women, but not men, in the 60 65 age group, the direct discrimination against men became indisputable.
+The condition of pensionability was itself patently gender based.
+The position would surely have been different had the policy been instead to admit free, say, those who were in fact retired.
+That would not have involved direct discrimination and, if challenged as indirect discrimination, would surely have been capable of justification, certainly if free admittance was granted not only to those retired but also if the applicant could otherwise establish that he or she was of limited means.
+Mandatory retirement age and sex were there precisely coterminous.
+Even then, the case was decided only by the narrowest majority of the House overturning a unanimous Court of Appeal.
+The 1976 Act, unlike, for example, article 14 of the European Convention on Human Rights, draws a distinction between direct and indirect discrimination, only the latter being capable of justification.
+It therefore seems to me of the greatest importance not to expand the scope of direct discrimination and thereby place preferential treatment which could well be regarded as no more than indirectly discriminatory beyond the reach of possible justification.
+This is especially so where, as here, no one doubts the Chief Rabbis utmost good faith and that the manifest purpose of his policy is to give effect to the principles of Orthodox Judaism as universally recognised for millennia past.
+There is not the same exact correlation between membership of the Jewish religion and membership of the group regarded on the Mandla approach as being of Jewish ethnicity as there was between retirement age and sex in James v Eastleigh and I for my part would regard the Court of Appeals judgment as going further than that decision and as impermissibly expanding the scope of direct discrimination beyond its proper limits.
+As I have already indicated, E is not really seeking to prevent JFS from adopting oversubscription criteria which give priority to Jews but rather is asking for JFS to define Jews more expansively than Orthodox Jews in fact do.
+But it is, of course, the logic of his argument that JFSs policy must be regarded as racially discriminatory not merely because it rules out ethnic Jews like M who are not recognised as Jews by the OCR but also because it rules out all other racial groups whether or not they have any connection with Judaism at all.
+On this argument, it is strictly immaterial that E is Jewish or that Ms mother converted to Judaism.
+This policy could as well have been struck down at the suit of anyone desiring admission to the school.
+If the argument succeeds it follows that Jewish religious law as to who is a Jew (and as to what forms of conversion should be recognised) must henceforth be treated as irrelevant.
+Jewish schools in future, if oversubscribed, must decide on preference by reference only to outward manifestations of religious practice.
+The Court of Appeals judgment insists on a non Jewish definition of who is Jewish.
+Jewish schools, designated as such by the Minister and intended to foster a religion which for over 3000 years has defined membership largely by reference to descent, will be unable henceforth even to inquire whether one or both of the applicant childs parents are Jewish. (Yet is that so very different from a Catholic school asking if the child has been baptised? It is hardly likely to have been unless one at least of its parents was a Christian).
+The root question for the Court is simply this: can a Jewish faith school ever give preference to those who are members of the Jewish religion under Jewish law.
+I would answer: yes, it can.
+To hold the contrary would be to stigmatise Judaism as a directly racially discriminating religion.
+I would respectfully disagree with that conclusion.
+Indeed I would greatly regret it.
+On this issue of direct discrimination my views coincide entirely with those of Lord Rodger.
+I turn to the question of indirect discrimination.
+As already noted, it is obvious
+that JFSs policy involves those not recognised by the OCR as Jews being treated less favourably than those who are so recognised.
+It is rather less obvious, however, that this policy puts persons of the same race or ethnic or national origins as [M] at a particular disadvantage when compared with other persons and that it puts [M] at that disadvantage (section 1(1A)(a) and (b) of the 1976 Act).
+After all, as already observed, M is himself, although personally disadvantaged by the policy, a member of the very same ethnic group as the policy advantages.
+The view could, therefore, be taken that M is disadvantaged not by his ethnic origins but by his inability to satisfy the Orthodox religious test.
+Put that aside, however, and suppose that section 1(1A) is here engaged and that JFS must establish that its policy is a proportionate means of achieving a legitimate aim pursuant to section 1(1A)(c) as certainly they would need to do were this challenge brought, as theoretically it could have been, at the suit of a child in no way of Jewish ethnic origin.
+The legitimacy of JFSs aim is surely clear.
+Here is a designated faith school, understandably concerned to give preference to those children it recognises to be members of its religion, but so oversubscribed as to be unable to admit even all of these.
+The School Admissions Code expressly allows admission criteria based either on membership of a religion or on practice.
+JFS have chosen the former.
+Orthodox Jews regard education about the Jewish faith as a fundamental religious obligation.
+Unlike proselytising faiths, however, they believe that the duty to teach and learn applies only to members of the religion, because the obligations in question bind only them.
+JFSs purpose is to develop in those recognised by the OCR as Jewish an understanding and practice of the faith.
+The fact that many of those admitted do not practise the Jewish faith on their admission is intended and, indeed, welcomed.
+Such children are admitted and taught alongside children already committed to the Orthodox Jewish faith so as to enhance their level of religious knowledge and observance and in the hope and expectation that they may come to practise it.
+In short, to impose a religious practice test, besides being felt by many to be invasive, difficult to measure and open to abuse, would be contrary to the positive desire of schools like JFS to admit non observant as well as observant Jewish children.
+Ironically, moreover, to impose such a test would narrow, rather than widen, the character of the schools intake so as to make it appear more, rather than less, discriminatory.
+As the Court of Appeal itself noted (at para 44), those presently admitted come from a wide disparity of religious and cultural family backgrounds . even . from atheist or Catholic or Moslem families.
+Inevitably too, it would require the school to educate those not recognised as Jewish by Orthodox Jewish law at the expense of those who are.
+The Court of Appeals conclusion that the aim of JFSs admissions policy is illegitimate was based on its view that its purpose or inevitable effect is to make and enforce distinctions based on race or ethnicity (para 46), essentially a repetition of its earlier finding of direct race discrimination.
+In truth the Court of Appeal never addressed the questions of legitimate aim and proportionality on the assumption (the only basis on which indirect discrimination would fall to be considered) that the policy is not directly discriminatory.
+I turn finally, then, to the question of proportionality.
+Given JFSs legitimate aim of educating children recognised to be Jewish, is their policy of invariably giving preference to these children over those not so recognised a proportionate means of achieving that aim? Answering that question in the affirmative, Munby J, in the course of a lengthy, impressive and to my mind convincing judgment, said this: 200.
+Two quite separate considerations drive me to this conclusion.
+In the first place, the kind of admissions policy in question here is not, properly analysed, materially different from that which gives preference in admission to a Moslem school to those who were born Moslem or preference in admission to a Catholic school to those who have been baptised.
+But no one suggests that such policies, whatever their differential impact on different applicants, are other than a proportionate and lawful means of achieving a legitimate end.
+Why, [counsel] asks rhetorically, should it be any different in the case of Orthodox Jews? .
+I agree.
+Indeed, the point goes even wider than the two examples I have given for, as [counsel] submits, if Es case on this point is successful then it will probably render unlawful the admission arrangements in a very large number of faith schools of many different faiths and denominations. 201.
+The other point is that made both by the Schools Adjudicator and by [counsel for JFS].
+Adopting some alternative admissions policy based on such factors as adherence or commitment to Judaism (even assuming that such a concept has any meaning for this purpose in Jewish religious law) would not be a means of achieving JFSs aims and objectives; on the contrary it would produce a different school ethos.
+If JFSs existing aims and objectives are legitimate, as they are, then a policy of giving preference to children who are Jewish applying Orthodox Jewish principles is, they say, necessary and proportionate indeed, as it seems to me, essential to achieve those aims .
+JFS exists as a school for Orthodox Jews.
+If it is to remain a school for Orthodox Jews it must retain its existing admissions policy; if it does not, it will cease to be a school for Orthodox Jews. Precisely.
+To this argument there is, and can be, no satisfactory answer.
+I find myself in full agreement with all of that.
+To ask why JFS should give preference to a Jewish child with little or no interest in Judaism whilst rejecting a committed child like M is to misunderstand the essential aim of an Orthodox Jewish school.
+This, as I have explained, is to fulfil its core religious duty: the education of members of its religion in the Orthodox faith, whether or not they practise it or will ever come to do so.
+It can no more be disproportionate to give priority to a Jewish child over that of a child, however sincere and committed, not recognised as Jewish than it would be to refuse to admit a boy to an oversubscribed all girls school.
+Whilst I respectfully agree with Lord Hopes judgment on the direct discrimination issue, I regretfully find myself differing from his conclusion on indirect discrimination.
+For my part I would have allowed JFSs appeal in its entirety.
+I understand Lord Hope to conclude that JFS have never addressed the question of
+proportionality and must now do so and devise a fresh policy allowing applications for admission by those not recognised as Jewish to be considered on an individual basis.
+Quite apart from the fact that this approach to my mind runs counter to the schools central aim, it seems to me fraught with difficulty.
+Quite how such a policy will be formulated and applied on a consistent basis is not easy to discern.
+That said, I regard it as altogether preferable to the new policy presently dictated by the Court of Appeals judgment: the imposition of a test for admission to an Orthodox Jewish school which is not Judaisms own test and which requires a focus (as Christianity does) on outward acts of religious practice and declarations of faith, ignoring whether the child is or is not Jewish as defined by Orthodox Jewish law.
+That outcome I could not contemplate with equanimity.
+JUDGMENT R (on the application of E) (Respondent) v Governing Body of JFS and the Admissions Appeal Panel of JFS (Appellants) and others R (on the application of E) (Respondent) v Governing Body of JFS and the Admissions Appeal Panel of JFS (United Synagogue) and others (Appellants) before LADY HALE LORD BROWN LORD HOPE, Deputy President JUDGMENT GIVEN ON 14th October 2009 Heard on 1st October 2009 Appellant (United Synagogue) Christopher McCrudden (Instructed by Farrer & Co) Ben Jaffey Appellant (Governing Body of JFS and Admissions) Lord Pannick QC Peter Oldham (Instructed by Stone King Sewell LLP) Appellant (Legal Services Commission) David Hart QC Sarah Lambert Commission) (Instructed by Legal Services Respondent (E) Dinah Rose QC Helen Mountfield (Instructed by Bindmans LLP) R (on the application of E) (Respondent) v Governing Body of JFS and the Admissions Appeal Panel of JFS (Appellants) and others R (on the application of E) (Respondent) v Governing Body of JFS and the Admissions Appeal Panel of JFS and others (United Synagogue) (Appellants) [2009] UKSC 1 LORD HOPE, DEPUTY PRESIDENT 1.
+This is a procedural application under rule 30 of the Supreme Court Rules 2009 (SI 2009/1603).
+The respondent (E) seeks an order that, whatever the outcome of the appeal, the appellants (JFS and the United Synagogue) shall not be entitled to seek the payment of any costs from himself or from the Legal Services Commission.
+Having heard argument at its first sitting on 1 October 2009, the Court decided to refuse Es application for a protective costs order for reasons to be given later.
+The following are our reasons for this decision.
+Background 2.
+JFS is a voluntary aided maintained comprehensive school in the London Borough of Brent.
+The first and second appellants are the Governing Body of JFS (the Governing Body) and its independent admission appeal panel (the Panel).
+The third appellant, the United Synagogue, is an association of Orthodox synagogues and the foundation body of JFS.
+E is the father of M, who is now aged 13.
+E is Jewish by descent and Ms mother, who is of Italian national and ethnic origin, has converted to Judaism.
+But her conversion is not recognised by the Orthodox Jewish community.
+M was refused admission to JFS for the year 2007/2008 on the grounds that he was not recognised as being Jewish by the Office of the Chief Rabbi of the United Hebrew Congregations of the Commonwealth and that its admission criteria gave priority, in the event of oversubscription, to Orthodox Jewish children.
+E sought judicial review of the Governing Bodys refusal to offer M a place at the school, of the Panels decision to uphold the refusal and against them both for failing to comply with the duty imposed on public authorities under section 71 of the Race Relations Act 1976 and against the rejection of his objection by the Schools Adjudicator.
+On 3 July 2008 Munby J found the school to have been in breach of its duty under section 71 of the 1976 Act, but otherwise rejected the claims: [2008] EWHC 1535/1536 (Admin).
+The finding of a breach of 3 section 71 was not the subject of any appeal, but Munby J granted leave to appeal on the substantive discrimination issues. 3.
+On 25 June 2009 the Court of Appeal allowed Es appeal, finding that JFSs oversubscription criteria were unlawful as they amounted to direct, or alternatively indirect, discrimination as defined in section 1 of the Race Relations Act 1976: [2009] EWCA Civ 626; [2009] PTSR 1442.
+The Governing Bodys refusal to admit M and the dismissal of his appeal by the Panel were both quashed.
+JFS was directed to reconsider Ms admission in accordance with its admissions policy but without regard to the criteria held by the judgment of the court to be unlawful.
+Other issues arising in the appeal were adjourned and have yet to be determined.
+That part of the order directing JFS to reconsider Ms admission was stayed for 14 days and, if a petition for leave to appeal were to be lodged, until the determination of that petition.
+As to costs, the Court of Appeal ordered that Es costs in that court and before Munby J be paid in the following proportions: 50% from JFS, 20% from the United Synagogue, which had participated in the case as an intervener in support of JFS, and as to the remaining 30% from other parties who are not concerned with this procedural application.
+Permission to appeal to the House of Lords was refused. 4.
+On 28 July 2008 an appeal committee of the House of Lords gave leave to the Governing Body and the Panel to appeal to the Supreme Court on the substantive discrimination issues and to the United Synagogue to appeal against the costs order that was made against it.
+On 31 July 2009 the House of Lords refused an application by the Governing Body and the Panel for a continuation of the stay of that part of the order of the Court of Appeal directing JFS to reconsider Ms admission, with the result that the decision originally challenged in this claim has effectively been superseded. 5.
+E has had the benefit in the proceedings below, and in the proceedings to date both in the House of Lords and this Court, of funding from the Legal Services Commission.
+He seeks the benefit of public funding for the substantive hearing of the appeal.
+But the Legal Services Commission was minded not to provide him with this benefit unless he takes steps to protect it against an order in the appellants favour for the costs of the appeal.
+On 18 September 2009 Mr David Reddin, a Senior Case Manager in the Legal Services Commission, wrote to his solicitors in these terms: I refer to your letter dated 15 September our telephone conversation of yesterday evening and your email of todays date.
+For the avoidance of doubt it is correct to say that I am minded to refuse your application for funding [E] as a respondent in the Supreme Court unless the other side is prepared to: 4 (a) Allow the cost [sic] order made in the Court of Appeal to stand in any event (b) Agree an undertaking that there will be no costs order in the Supreme Court with both sides bearing their own costs.
+If that is not acceptable we would expect an application to be made to the Court to seek an order along those lines failing which funding would not be provided.
+Our reasoning behind this decision stems from the Funding Code which in the circumstances of this case allows the refusal of funding unless the likely costs are proportionate to the likely benefits of proceedings having regard to the prospects of success and all other circumstances. 6.
+Mr Reddin then set out a series of factors which he said were clearly relevant to the determination of proportionality.
+In summary, they were as follows: (1) that E had effectively succeeded in the primary purpose of the litigation and his situation would not change whatever the outcome of the proceedings, (2) the likely consequences for the Community Legal Service Fund if costs were to be awarded to the other side on an inter partes basis in the Court of Appeal and in this Court, (3) that it was not unreasonable to expect the appellants to pay for the case, as the real interest in overturning the decision of the Court of Appeal lay with them and (4) that, although the case was of some public interest, the number of people who were likely to benefit as being in a similar position to M was relatively small. 7.
+The terms proposed by Mr Reddin on the Legal Services Commissions behalf were not acceptable to the other parties.
+E wishes to maintain his opposition to the appeals, but he is not in a position to fund the legal representation that he requires himself.
+The result of the predicament in which he finds himself is that he has been left with no alternative but to apply to the Court for a protective costs order.
+JFS and the United Synagogue have opposed his application.
+The issues 8.
+The order that E seeks is that the Appellants shall not be entitled to seek the payment of any costs from the Legal Services Commission or the Respondent.
+As Ms Dinah Rose QC in her carefully worded submissions 5 made clear, the real purpose of this application is to ensure that E continues to have the benefit of public funding in this Court.
+Taking her application at its face value, however, it raises the question whether E and the Legal Services Commission should be protected against orders for costs in three distinct respects: (1) an order in favour of JFS for the costs of its appeal to this Court on the discrimination issues; (2) an order in favour of the United Synagogue for the costs of its appeal on the costs issue; and (3) an order in favour of either or both of these parties for their costs in the Court of Appeal, should they be successful in their appeals to this Court.
+Mr Reddin also asked in his letter of 18 September 2009 that an order should be sought that both sides should bear their own costs in any event.
+But Ms Rose did not seek an order in these terms.
+She said that it would have serious implications for access to justice and that it would be wrong in principle.
+We will comment briefly below on her reasons for not doing so. 9.
+Mr Hart QC for the Legal Services Commission very properly conceded at the outset of his submissions that the Commission would not insist as a condition of extending funding to E on his obtaining protection against an order in favour of the United Synagogue for the costs of its appeal to this Court on the costs issue.
+Nor would it insist on his obtaining protection against an award in favour of JFS or the United Synagogue of their costs in the Court of Appeal in the event of either or both of them being successful in their appeals to this court.
+Had he not made these concessions we would have had no hesitation in refusing to make orders to either effect.
+In both cases Es exposure to the risk of these awards is a direct result of the fact that the Legal Services Commission provided funding to E in the Court of Appeal.
+Having decided to do so, it must be taken to have assumed the risk that any orders as to costs that were made in Es favour in that court would be reversed on appeal by the Supreme Court.
+E had a legitimate expectation that the funding that was afforded to him in the Court of Appeal would extend to the consequences of any such order.
+Furthermore, as Mr Jaffey for the United Synagogue pointed out, an order protecting E and the Legal Services Commission against the payment to the United Synagogue of any costs would render its appeal on the costs issue pointless.
+It does not appear from Mr Reddins letter of 18 September 2009 that he had applied his mind to the issue that the United Synagogue wishes to pursue.
+It is entirely separate from the discrimination issues raised by JFS.
+The costs issue raises no question of general public interest.
+A protective costs order in Es favour in regard to these costs would be entirely inappropriate. 10.
+The sole remaining issue relates to the costs that will be incurred by JFS in this court.
+The question is whether the Legal Services Commission is entitled to insist as a condition of extending funding to E to enable him to oppose JFSs appeal that he must obtain a protective order in his favour against these costs.
+Mr Hart confirmed that funding for this purpose would not be extended to E if an order was not made in his favour to this effect.
+He submitted that the relevant principles were identified by the Court of Appeal in 6 R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, [2005] 1 WLR 2600, para 74, and that they applied by analogy to this case: (1) the issues raised by JFS are of general public importance, (2) the public interest requires that those issues should be resolved, (3) E does not have a private interest in the outcome, (4) having regard to the financial resources of the parties and to the amount of costs that are likely to be involved it is fair and just to make the order and (5) if the order is not made, E will probably discontinue the proceedings and will act reasonably in so doing.
+That was a case where the party who was seeking the order would discontinue the proceedings if it was not made.
+In this case, as in Weaver v London Quadrant Housing Trust [2009] EWCA Civ 235, it is the other party who is in control of the appeal.
+But it was held in Weaver that it was nevertheless appropriate for a protective costs order to be made in the respondents favour to ensure that there was proper representation for both sides before the court: para 7. 11.
+Funding services as part of the Community Legal Service is available only to individuals: Access to Justice Act 1999, s 7.
+So the principles that were identified in R (Corner House Research) v Secretary of State for Trade and Industry, where the claimant was a non governmental organisation of limited means and not eligible for public funding, do not provide a complete answer to the question which has been raised by this application.
+As in Weaver v London Quadrant Housing Trust, the prime mover behind the application in this case is the Legal Services Commission.
+It is not willing to fund Es legal representation except on its own terms.
+The question is whether the attitude which it has taken in this case is compatible with the scheme which has been laid down by the statute and in particular with the Code that has been prepared under section 8 of the 1999 Act.
+Ms Rose said that Mr Reddins letter was hard to reconcile with the Code.
+Lord Pannick QC for JFS, whose arguments Ms Rose said she was content to follow, went further.
+He submitted that in the circumstances of this case to withdraw public funding from E at this stage would be unlawful.
+The statutory framework 12.
+The basic rule that provides protection for individuals against an award of costs against them personally in cases that are publicly funded is set out in section 11(1) of the 1999 Act, which provides that, except in prescribed circumstances, costs ordered against an individual in relation to any proceedings funded for him shall not exceed the amount (if any) which is a reasonable one for him to pay having regard to all the circumstances, including the financial resources of all the parties to the proceedings, and their conduct in connection with the dispute to which the proceedings relate.
+Section 11(3) provides that regulations may make provision about costs in relation to proceedings in which services are funded by the Legal Services Commission for any of the parties as part of the Community Legal Service.
+Section 11(4) 7 sets out various matters with regard to which such regulations may make provision.
+Regulation 5 of the Community Legal Service (Cost Protection) Regulations 2000 (SI 2000/824) provides cost protection for the Legal Services Commission in cases where funded services are provided to a client in relation to proceedings, those proceedings are finally decided in favour of a non funded party and the limit on costs set out in section 11(1) of the Act applies.
+In such cases the court may only make an order for payment by the Legal Services Commission to the non funded party of the whole or part of the costs incurred by him in the proceedings in an appellate court if it is satisfied that it is just and equitable in the circumstances that provision for the costs should be made out of public funds: regulation 5(3)(d).
+The Governing Body is a charity supported by limited funds.
+Lord Pannick said that the Legal Services Commission was, in effect, seeking to deny it the benefit of this regulation.
+Mr Hart did not suggest that anything else was to be found in the Community Legal Service (Cost Protection) Regulations 2000 that bears on the issue that has been raised in this case. 13.
+Section 8(1) of the 1999 Act provides that the Legal Services Commission shall prepare a code setting out the criteria according to which it is to decide whether to fund (or continue to fund) services as part of the Community Legal Service for an individual for whom they may be so funded and, if so, what services are to be funded for him.
+As E was funded in the courts below his case can be taken then to have met all the relevant criteria, including those relating to financial eligibility.
+Our attention was drawn to a number of provisions in the Funding Code which might be relevant to the consideration of his case at this stage, faced as he is with an appeal by a party who seeks to reverse orders that were made in his favour in the court below.
+Part A of the Code sets out the general criteria for funding.
+Section 7 of this Part sets out the criteria for judicial review.
+Para 7.5.2 provides: 7.5.2 The Presumption of Funding If the case has a significant wider public interest, is of overwhelming importance to the client or raises significant human rights issues, then, provided the standard criteria in Section 4 and Section 5.4 are satisfied, funding shall be granted save where, in light of information which was not before the court at the permission stage or has subsequently come to light, it appears unreasonable for Legal Representation to be granted.
+There has been no change to Es financial position or to the merits of the discrimination issues which are the subject of the appeal to this Court.
+The only change is that, as a result of the lifting of the stay, the decision originally challenged has been superseded. 8 14.
+Part C of the Funding Code provides guidance about decision making.
+Para 13.5 of this Part provides: 13.5 Discharge on the Merits 3.
+The importance of a case to the client must always be considered in decisions to discharge, especially if discharge is being considered at a very late stage in the proceedings.
+The clients rights under ECHR Article 6 must be considered in such circumstances.
+Para 13.7 provides: 13.7 Claims Not Subject to cost Benefit Ratios 1.
+This guidance applies to: . (c) certificates for Full Representation or Litigation Support in proceedings which have a significant wider public interest. 2.
+The starting point in deciding whether such a certificate should continue or should be discharged is to reapply the relevant Criteria for the Level of Service in question, taking into account the latest available information. 3.
+If, when prospects of success and cost benefit Criteria are applied to the certificate as interpreted in the way described above, those Criteria are satisfied, funding will continue and the certificate will not be discharged.
+If those Criteria are not satisfied, the certificate will normally be discharged, but the Commission will retain a discretion to continue funding.
+This discretion will generally be approached in the following way: (a) funding will be continued if there is a significant wider public interest in doing so (d) if proceedings are at a late stage the clients Article 6 rights must be considered. (e) otherwise the issue for the Commission is whether it is in the interests of the Community Legal Service Fund for funding to 9 continue.
+The certificate should be continued if it is in the Funds interest to do so, but discharged if it is not 15.
+The guidance that is given in Part C of the Funding Code appears to be directed primarily to the decisions that need to be taken at the outset of proceedings and about the discharge of certificates while proceedings are still at first instance.
+Mr Hart admitted that this was the first occasion that the Legal Services Commission had insisted upon a protective costs order as a condition of providing funding for an appeal against orders made in its clients favour by the court below for which the House of Lords had given leave.
+He was unable point to anything in the Code that provided direct support for the reasons that the Legal Services Commission has given in this case for refusing funding in these circumstances.
+So far as it goes, however, Part C of the Code suggests that the following considerations are relevant at this stage of the proceedings: (a) the Commission is entitled to consider whether it is in the interests of the Community Legal Service Fund for funding to be continued: para 13.7.3(e); but (b) where the case is of significant wider public interest, the presumption is that funding that has been granted under Part A, para 7.5.2 should continue: para 13.7.3(a); (c) the clients interests must also be considered: para 13.5.3; and (d) especially if proceedings are at a late stage, his Article 6 rights must be considered too: paras 13.5.3 and 13.7.3(d).
+Discussion 16.
+It is clear that E would not have made this application had he not been forced to do so by the Legal Services Commission.
+It is also clear that without the support of public funding he will not be able, as he wishes to do, to continue to resist this appeal.
+As in Weaver v London Quadrant Housing Trust [2009] EWCA Civ 235, it is essential that there should be representation for both sides before the Court.
+The case raises issues of considerable public importance, and it is plainly in the public interest that both sides of the argument should be properly presented.
+The date for the hearing of the appeal, which in view of the importance of the issues has been expedited, has already been fixed.
+The hearing is to take place at the end of this month.
+Time is now too short for effective alternative arrangements to be made for the Court to be provided with an amicus to argue the case in Es place.
+So the real issue that must be addressed is not whether the case is suitable for a protective costs order under the Corner House Research case principles, but whether the decision of the Legal Services Commission to refuse funding in this case unless it has the benefit of a protective costs order is compatible with the Funding Code and open to attack on traditional Wednesbury grounds. 17.
+The Legal Services Commission seeks protection from the ordinary consequences of the statutory scheme under which public funding is provided.
+It wishes to eliminate the risk of an order being made against it in favour of JFS under regulation 5(3)(d) of the 2000 Regulations.
+In Weaver v London 10 Quadrant Housing Trust [2009] EWCA Civ 235, where the applicant was publicly funded, an order was made that the Trust could not recover its costs against the applicant or the Legal Services Commission.
+That case shows that it cannot be said that an order in such terms will never be appropriate where the applicant is publicly funded.
+But, as Toulson LJ said in para 16, the background to the application in that case was highly unusual.
+The appeal had been brought by the Trust, which was a registered social landlord.
+It was brought to establish a point of general importance, namely whether a registered social landlord was to be regarded as a public authority for the purposes of section 6(3)(b) of the Human Rights Act 1998.
+The applicant no longer had any interest in the proceedings.
+The court had dismissed her challenge to the possession order that was made against her on the facts.
+So, as Elias LJ pointed out in para 12, the possession order against her would stand come what may.
+Any personal interest that she might derive and it hard to see what this could have been was no greater than that which would accrue to the benefit of all tenants in the same position that she had been before the order was made against her. 18.
+This case is significantly different, in various respects.
+In the first place, in Weaver it was inconceivable that, had the Legal Services Commission withdrawn their support and the Trust then succeed in their appeal, any costs order would have been made against the tenant.
+Here, by contrast, were his certificate to be discharged and the appeal to succeed, there is a real risk that E would be saddled with a very substantial liability for future costs.
+Furthermore, E maintains that he still has a personal interest in the outcome of this appeal.
+As he has made clear throughout, he feels strongly that other children should not be denied a school place on the same racially discriminatory basis as the Court of Appeal has held happened in Ms case.
+The private law claim by M on whose behalf the application for judicial review was brought is still unresolved, and its outcome is dependent upon the result of these proceedings.
+Moreover the public interest in the substantive discrimination issues which JFS wishes to argue is much greater than Mr Reddin appears to have envisaged.
+Far from the number of people who are likely to benefit as being in a similar position to M being relatively small, as he said in his letter of 18 September 2009, those who are likely to benefit extend across the widest possible spectrum of children who are exposed to discrimination on racial grounds.
+The issue is not confined to the Jewish community or even to children who wish to be educated in religious schools.
+So the case for insisting that JFS should be denied the benefit of regulation 5(3)(d) of the 2000 Regulations by the making of a protective costs order against it is much weaker than it was in Weavers case. 19.
+Then there is the stage at which this issue has been raised.
+Leave to appeal was given on 28 July 2009.
+On 31 July 2009 the House of Lords refused to make a protective costs order in Es favour.
+He was invited to renew his application if his financial circumstances changed so that his eligibility for 11 public funding came into question.
+There has been no change in his financial position or in the circumstances that affect the merits of the discrimination issues.
+All that has changed is the removal of the stay and Ms admission to the school.
+The prospects of success remain the same as they were in the courts below.
+It was in these circumstances that immediately after the hearing on 31 July 2009 Es solicitors contacted the Legal Services Commission about the funding for the appeal to this Court.
+Having attempted without success to obtain funding from another source, they made an application for further funding from the Legal Services Commission on 8 September 2009.
+Mr Reddins letter of 18 September 2009 was the result. 20.
+Mr Reddin cannot be criticised for delay.
+But his refusal to provide funding to enable E to resist JFSs appeal without a protective costs order ignores the consequences of that refusal for access to justice.
+As Ms Rose pointed out, it would mean that publicly funded litigants would have to be warned that they might be exposed to personal liability for the other sides costs on appeal even if they were entirely successful in the courts below.
+Many litigants would be unable to face that risk, with the result that they would be shut out of court.
+In consequence of JFSs appeal against the decision in his favour by the Court of Appeal, for which he was publicly funded, E would be exposed to the risk of having to pay costs incurred after public funding has been withdrawn from him even if he takes no further part in these proceedings.
+Conversely, the case has only reached this court because E had the benefit of public funding in the Court of Appeal.
+He had a legitimate expectation that, as he was provided with public funding in the Court of Appeal he would be provided with public funding to enable him to resist this appeal. 21.
+We take full account of the points made by Mr Reddin in his witness statement of 29 September 2009, and in particular the risk to the Legal Services Commission of an adverse costs order if JFS is successful in its appeal.
+We take account too of the fact that JFS would not be entitled to recover costs against an amicus were one to be appointed: see Weaver v London Quadrant Housing Trust [2009] EWCA Civ 235, para 7.
+But the position which Mr Reddin has adopted on the Commissions behalf cannot be reconciled with the statutory scheme.
+In his letter of 18 September 2009 he said that the Funding Code in the circumstances of this case allows the refusal of funding unless the likely costs are proportionate to the likely benefits of the proceedings and all other circumstances.
+This takes no account of the stage in the proceedings at which the client is in need of funding.
+Compelling reasons would have to be shown for withdrawing public funding from a litigant who was publicly funded in the court below, was successful in that court and wished to resist an appeal to a higher court by the unsuccessful party.
+No such reasons have been demonstrated in this case. 22.
+It should be understood, as a principle of general application, that if the Legal Services Commission decide to fund a litigant whether by way of claim 12 or a defence who is successful in his cause, that decision must ordinarily be seen to carry with it something close to an assurance that the Commission will continue to support him in any subsequent appeal by the unsuccessful party whilst he remains financially eligible.
+This will particularly be so where (a) the withdrawal of support would expose the publicly funded litigant to a substantial risk for future costs, (b) he retains a significant interest, quite apart from his interest in resisting any future costs liability, in maintaining his success in the litigation and (c) the issues raised on the appeal are of general public importance which it is in the public interest to resolve and his case on these issues is unlikely to be properly argued unless he continues to be funded by the Legal Services Commission.
+All three of these circumstances prevail in this case.
+It should be noted too that in Weaver the Court of Appeal, in making the protective costs order, expressly recognised that, were funding to be withdrawn, the necessary representation would have to be provided either by the Equality and Human Rights Commission or by appointing an amicus, against whom the Trust would not be able to recover its costs: [2009] EWCA Civ 235, paras 7 and 17.
+Those alternatives are not available here.
+Although the Equality and Human Rights Commission are intervening in the appeal, they propose to advance different arguments from those which E wishes to advance.
+As we have said, it is too late for the effective appointment of an amicus.
+The decision to refuse public funding at this stage appeared to us in all the circumstances to be so unreasonable as to be unlawful. 23.
+It was suggested that, if the Legal Services Commission adhered to this position despite a finding to that effect, the matter could be taken to judicial review.
+But time is short.
+No advantage is to be gained by going through that procedure, and the delay and expense of doing so is best avoided.
+We concluded that E is entitled to an immediate declaration in these proceedings that the only reasonable decision open to the Legal Services Commission is to continue to provide him with public funding for this appeal.
+No costs orders 24.
+As has already been noted, Ms Rose declined to seek an order that each side should be liable for its own costs in any event on the ground that to do so would be wrong in principle.
+As Scott Baker J observed in R (Boxall) v Waltham Forest London Borough Council (2001) 4 CCLR 258, para 12, the failure of a legally aided litigant to obtain a costs order against another party may have serious consequences.
+This is because, among other things, the level of remuneration for the lawyers is different between a legal aid and an inter partes determination of costs.
+This disadvantage is all the greater in a case such as this.
+It is a high costs case, for which lawyers representing publicly funded parties are required to enter a high costs case plan with the Legal Services Commission.
+It is a common feature of these plans that they limit the number of hours to an artificially low level and the rates at which solicitors and counsel are paid to rates that are markedly lower than those that are usual in the 13 public sector.
+Mr Reddin has indicated that, as they are defending a win, Es solicitors would not be expected to be paid at risk rates.
+Nevertheless the rate of remuneration that is likely to be agreed for this appeal will be considerably lower than that which would be reasonable if costs were to be determined inter partes. 25.
+It is one thing for solicitors who do a substantial amount of publicly funded work, and who have to fund the substantial overheads that sustaining a legal practice involves, to take the risk of being paid at lower rates if a publicly funded case turns out to be unsuccessful.
+It is quite another for them to be unable to recover remuneration at inter partes rates in the event that their case is successful.
+If that were to become the practice, their businesses would very soon become financially unsustainable.
+The system of public funding would be gravely disadvantaged in its turn, as it depends upon there being a pool of reputable solicitors who are willing to undertake this work.
+In R (Boxall) v Waltham Forest London Borough Council Scott Baker J said that the fact that the claimants were legally aided was immaterial when deciding what, if any, costs order to make between the parties in a case where they were successful and he declined to order that each side should bear its own costs.
+It is, of course, true that legally aided litigants should not be treated differently from those who are not.
+But the consequences for solicitors who do publicly funded work is a factor which must be taken into account.
+A court should be very slow to impose an order that each side must be liable for its own costs in a high costs case where either or both sides are publicly funded.
+Had such an order been asked for in this case we would have refused to make it.
+Conclusion 26.
+For these reasons we refused Es application for a protective costs order.
+We declared that the only reasonable decision open to the Legal Services Commission in the circumstances was to continue public funding without a protective costs order.
+The Legal Services Commission must pay to E, JFS and the United Synagogue the costs of this application.
+Nothing is to be published which may tend to identify the child who is concerned in these appeals. 14 On the United Synagogues costs appeal I agree entirely with Lord Hope.
+MICHAELMAS TERM [2009] UKSC 1 On appeal from: [2009] EWCA Civ 626 [2009] EWCA Civ 681
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+On 7 July 2002 the oil rig supply vessel Far Service (the vessel) was damaged by fire while berthed in Peterhead harbour.
+She was owned by the pursuer, Farstad Supply AS (the owner), and was under charter to the third party, Asco UK Limited (Asco).
+Asco had engaged the defender Enviroco Limited (Enviroco) to clean out some of the tanks on board the vessel.
+Enviroco was carrying out the work.
+On Ascos instructions the master of the vessel started up the engines, preparatory to moving to another berth.
+At the same time an employee of Enviroco inadvertently opened a valve which released oil into the engine room near hot machinery.
+The oil ignited and caused the fire.
+The claims
+The owner sued Enviroco for damages in negligence.
+Enviroco denies liability but for the purposes of the appeal it is to be assumed that it is liable.
+Enviroco says that the fire was materially contributed to by the contributory negligence of both the owner and Asco.
+Those allegations are denied but for the purposes of the appeal it is to be assumed that Asco would be liable in negligence to the owner for the consequences of the fire but for any defence Asco might have under the terms of the charterparty.
+Although there is a contract between Enviroco and Asco, the terms of that contract are not before the Court and, so far as I am aware, Enviroco has not alleged any breach of that contract against Asco.
+Envirocos claim is solely for contribution.
+It says that, if it is liable to the owner, it is entitled to a contribution from Asco under section 3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 (the 1940 Act).
+If it is entitled to such a contribution, it is agreed that Asco will (at the least) be entitled to an indemnity from the owner under clause 33(5) of the charterparty.
+Asco has played no part in the debate at any stage.
+That is no doubt because, whatever the result, it will not ultimately be liable.
+It either has a defence to Envirocos claim for contribution or it is entitled to an indemnity from the owner under the terms of the charterparty.
+The owner accepts that that is the case and has accordingly made the submissions which Asco would have made.
+After a debate on the assumed facts, on 23 April 2008, the Lord Ordinary, Lord Hodge, held that Enviroco was not entitled to a contribution from Asco: see 2008 SLT 703.
+Enviroco enrolled a reclaiming motion and on 1 May 2009 an Extra Division allowed the reclaiming motion by a majority, comprising Lady Paton and Lord Carloway, with Lord Osborne dissenting: see 2009 SC 489.
+With the judicial score being two all, the owner appeals to this Court in order to restore the interlocutor of the Lord Ordinary.
+The issues
+As set out in the agreed Statement of Facts and Issues the issues in this appeal are these: i) What is the meaning and effect of section 3(2) of the 1940 Act? ii) In particular, can a defence provided by a pre existing contract such as the charterparty be taken into account in determining whether a person if sued, might also have been held liable for the purposes of section 3(2)? iii) If the answer to question ii) is yes, does clause 33(5) of the charterparty have the effect that Asco is not a person who, if sued, might also have been held liable to the appellants for the purposes of section 3(2)?
+The 1940 Act
+It is convenient to consider the first two questions together because they both involve the construction of the 1940 Act.
+It is common ground that at common law the position in Scotland (unlike in England) was that, where more than one wrongdoer was jointly and severally liable to pay damages in respect of any loss or damage, and where that wrongdoer had paid more than his pro rata share, each such wrongdoer was liable inter se to pay a pro rata share of the damages.
+Thus if there were two such wrongdoers, A and B, the contribution of each would be 50 per cent and, if A paid, say, 75 per cent of the damages, he was entitled to recover the 25 per cent excess from B.
+That was so, whether or not a claim had been made by the pursuer against B. The common law position is explained by Lord Keith of Kinkel in Comex Houlder Diving Ltd v Colne Fishing Co Ltd 1987 SC (HL) 85 at 120 1.
+The 1940 Act was enacted to reform the common law position.
+Section 3 is entitled Contribution among joint wrongdoers and provides, so far as relevant, as follows: (1) Where in any action of damages in respect of loss or damage arising from any wrongful acts or negligent acts or omissions two or more persons are, in pursuance of the verdict of a jury or the judgment of a court found jointly and severally liable in damages or expenses, they shall be liable inter se to contribute to such damages or expenses in such proportions as the jury or the court, as the case may be, may deem just: Provided that nothing in this subsection shall affect the right of the person to whom such damages or expenses have been awarded to obtain a joint and several decree therefor against the persons so found liable. (2) Where any person has paid any damages or expenses in which he has been found liable in any such action as aforesaid, he shall be entitled to recover from any other person who, if sued, might also have been held liable in respect of the loss or damage on which the action was founded, such contribution, if any, as the court may deem just. (3) Nothing in this section shall . (b) affect any contractual or other right of relief or indemnity or render enforceable any agreement or indemnity which could not have been enforced if this section had not been enacted.
+The essential purpose of the section was to replace the common law pro rata rule with a flexible rule of apportionment according to the courts view of what was just.
+In the instant case the claim for contribution is made under section 3(2) but in my opinion section 3(2) must be construed in the context of the section as a whole and, in particular, subsection (1).
+Subsection (1) deals with the case where the pursuer (here the owner) proceeds against two defenders in respect of loss or damage caused by both and a judgment is given against both, so that they are both found jointly and severally liable in damages or expenses.
+This might have been the case here if the owner had sued both Enviroco and Asco and had obtained a decree against Enviroco and Asco in respect of loss and damage arising out of the fire.
+The effect of subsection (1) would then have been that Enviroco and Asco would have been liable to contribute to such damages and expenses in such proportions as the court deemed just.
+It is important to appreciate that in such an action, in order for the owner to obtain a decree against Asco, it would have had to establish that Asco was liable to it in damages.
+That would have involved establishing that Asco was liable for damages for breach of duty, which in turn would have involved the court considering whether Asco had a defence under the charterparty.
+That is so whether the alleged duty was a contractual duty or a duty of care at common law.
+Although the Statement of Facts and Issues says that, for the purposes of this appeal, it is to be assumed that Asco would have been liable to the owner in negligence jointly and severally with Enviroco but for any defence arising from the terms of the charterparty, that assumption would not have carried the owner far enough.
+That is because the right to contribution under section 3(1) depends upon there being a decree that Enviroco and Asco were jointly and severally liable in damages and the owner could not have obtained such a decree against Asco if Asco had a contractual defence, whether the source of the alleged liability was in contract or delict.
+The relations between the owner and Asco were governed by the charterparty and I can see no basis upon which Asco could have been liable to the owner in negligence, and thus in delict without reference to the terms of the charterparty.
+The question in a case to which section 3(1) applied would be whether Asco had a defence under the charterparty to the owners claim.
+I turn to section 3(2).
+It applies to a claim for contribution by a person who has been held liable in any such action as aforesaid.
+The reference to any such action is a reference to the action identified in subsection (1) and is thus a reference to an action by a pursuer against a defender in respect of loss or damage arising from any wrongful acts or negligent acts or omissions by the defender.
+If a defender, as such a wrongdoer, has been held liable to pay damages or expenses to a pursuer and if he pays the damages he has a right to recover such contribution, if any, as the court may deem just from any other person who, if sued, might also have been held liable in respect of the loss or damage on which the action was founded.
+As I see it, the subsection is specifically intended to deal with the position where there are two actions.
+In the first action a wrongdoer A is held liable in damages or expenses to the pursuer and A then pays the pursuer and begins a separate action against a second person B who, if sued in the first action, might have been held liable to the pursuer in the first action.
+However, no one suggested that the subsection was limited to such a case.
+It was not suggested that the claim for contribution could not be made by third party proceedings in the same action, even though no liability for contribution can arise until A has paid the pursuer.
+In the instant case A is Enviroco and is assumed to be liable in delict to the owner in respect of loss and damage caused by the fire.
+Let it also be assumed that it has paid the pursuer the amount of damages awarded against it.
+Enviroco is entitled under subsection (2) to recover a contribution to its liability from Asco if it shows that Asco is a person who, if sued, might also have been held liable in respect of the same loss.
+It is clear that the expression if sued means if sued by the owner.
+So the question is whether, if Asco had been sued by the owner, it might have been held liable to the owner in respect of the loss or damage caused by the fire.
+There has been some consideration of the expression if sued in the cases.
+For example, in Dormer v Melville Dundas & Whitson Ltd 1989 SC 288 at 298, the Inner House followed earlier dicta of Lord Keith in Central SMT Co Ltd v Lanarkshire CC 1949 SC 450 at 461 to the effect that those words assume that the person in Ascos position had been relevantly, competently and timeously sued; in other words, that all the essential preliminaries to a determination of the other partys liability on the merits have been satisfied.
+In that sentence the other party in this case is Asco.
+It is not suggested that all such preliminaries had not been satisfied on the facts of this case.
+So it is not necessary to consider possible problems which might arise on the facts of specific cases, some of which are considered by Lord Hodge in his clear and concise analysis at paras 8 to 19 of his judgment.
+It follows that the question under section 3(2) is whether, if Asco had been sued by the owner, it would have been liable to the owner.
+The answer to that question is thus the same as it would have been if the owner had sued both Enviroco and Asco and the case had fallen within section 3(1) and not section 3(2).
+For the reasons already given, however the duty is formulated, that depends upon whether Asco would have had a defence to the owners claim for damages arising out of the fire.
+It follows therefore that, in my opinion, the outcome of this appeal depends upon the true construction of the charterparty.
+In this regard I entirely agree with the conclusions and reasoning of Lord Mance.
+In particular I agree with him that, if Asco is not liable to the owner because it has a contractual defence under the charterparty, Enviroco will not be entitled to contribution from Asco and that the reason for that cannot be described as the result of a whim on the part of the owner but is the result of deliberate contractual arrangements apportioning risk between them as owner and charterer under the charterparty.
+I make two points by way of postscript on this part of the case.
+The first is that it is submitted on behalf of Enviroco that it would be unjust to allow Asco to rely upon a contractual defence of which Enviroco was unaware.
+I would not accept that submission.
+For the reasons I have explained, the whole basis of the right to contribution under subsections (1) and (2) of section 3 is that both Enviroco, as the defender, and Asco, as second defender or third party as the case may be, are liable to the owner.
+If Asco is not liable to the owner, the whole basis of its liability to contribution is removed.
+I see nothing unjust in such a result.
+In this regard too I agree with Lord Mance.
+Enviroco carried out its work pursuant to a contract with Asco and must have known that there was a charterparty governing the relationship between the owner and Asco.
+It could of course have refused to contract with Asco without obtaining and considering the terms of the charterparty.
+Moreover, if Enviroco wished to recover a contribution or indemnity on facts such as these, the way to do it was to make provision for it in its contract with Asco.
+The second point is related.
+It is that the case pleaded against Asco is put in negligence.
+As Lord Hodge put it at para 2, Enviroco alleged that Asco failed in its duty as charterer and base operator to direct and supervise the operations carried out on the vessel while the vessel was in port.
+He added that, although it is not expressly averred, the pleadings imply that Asco failed in its duty to the owner to take reasonable care to avoid causing physical damage to the vessel.
+As stated above, however the duty is framed, the question whether Asco would have been liable to the owner depends upon whether it has a defence to the claim by reason of the terms of the charterparty.
+I turn to that question.
+The charterparty
+The charterparty is dated 4 February 1994.
+By clause 48, it is governed by English law and the parties agreed that the High Court in London should have exclusive jurisdiction over any dispute arising out of it.
+It was between Asco as charterer and Farstad Shipping A/S as owner, but it was agreed in the Statement of Facts and Issues that Farstad Supply AS was and is to be treated as the owner under the charterparty.
+In the light of that agreement it is not necessary for me to trace the route to that conclusion.
+The charterparty was for an original period of five years but was subsequently extended by agreement.
+By clause 18 the owner was to provide and/or pay for all requirements, costs or expenses of whatsoever nature relating to the Vessel and Owners personnel .
+The critical provisions of the charterparty for present purposes are to be found in clause 33, which is set out in full in the Appendix to this judgment.
+The owner submits that on the true construction of clause 33.5 the parties agreed that Asco was not to be liable in respect of loss or damage to the vessel even if caused by its negligence.
+Alternatively the owner submits that, if clause 33.5 is not an exclusion clause but is, as Enviroco submits, an indemnity clause (without being an exclusion clause), the owner would not have obtained a decree to the effect that Asco was liable to it within the meaning of section 3(1) because of what has been described as the Scottish brocard frustra petis quod mox es restiturus (which is the same principle as the English law defence of circuity of action) and therefore Enviroco cannot establish that, if sued, Asco might have been liable in respect of the loss or damage caused by the fire.
+All depends upon the true construction of the charterparty.
+Like any other term in a contract, clause 33.5 must be construed in its context as part of clause 33 as a whole, which must in turn be set in its context as part of the charterparty, which in its own turn must be considered against the relevant surrounding circumstances or factual matrix.
+The vessel was chartered for work in the oil rig supply industry and was a comparatively long term contract.
+Clause 33 contains a division of responsibility between the owner and charterer of a type which has become familiar.
+However, that fact is no more than part of the factual matrix.
+Ultimately all depends upon the true construction of the language of the particular clause in its context.
+The features of clause 33 which are of particular importance seem to me to be these.
+Clause 33 as a whole is entitled EXCEPTIONS/INDEMNITIES and clause 33.1 expressly provides that specific clauses are to be unaffected by the exceptions and indemnities set out in clause 33.
+With that introduction one would expect the clause to contain both exceptions and indemnities.
+Each of the clauses except clauses 33.7 and 33.10 provides that the owner or charterer as the case may be shall defend, indemnify and hold harmless the other against various events.
+The critical clause is clause 33.5, which provides: Subject to Clause 33.1, the Owner shall defend, indemnify and hold harmless the Charterer, its Affiliates and Customers from and against any and all claims, demands, liabilities, proceedings and causes of action resulting from loss or damage in relation to the Vessel (including total loss) or property of the Owner, including personal property of Owners Personnel or of anyone for whom the Owner may be responsible on the Vessel, irrespective of the cause of loss or damage, including where such loss or damage is caused by, or contributed to, by the negligence of the Charterer, its Affiliates or Customers.
+The question is whether clause 33.5 excludes the charterers liability to the owner in respect of damage to the vessel caused by the charterers negligence.
+In my opinion it plainly does.
+As appears below, the word indemnify is capable of having a wide meaning but, even assuming that by itself it might (depending upon the context) have a narrow meaning, it does not stand alone in the clause.
+The owner must defend . and hold harmless the charterer, not only against liabilities and causes of action, but also against all claims, demands and proceedings.
+The natural meaning of that expression is that, since the owner must hold Asco harmless from a claim by the owner in respect of damage to the vessel caused by Ascos negligence, Asco cannot be liable to the owner in respect of such damage.
+The Lord Ordinary analysed this point with admirable clarity and brevity at paras 24 to 27 of his judgment, to which I would like to pay particular tribute.
+I entirely agree with him that, as he put it at para 27, the obligation to hold harmless goes further than the obligation to reimburse because they are words of exception.
+In some contexts the words indemnify and hold harmless have the same meaning.
+So, for example, in the second edition of the Oxford English Dictionary 1989, indemnify is given three meanings, two of which are these: 1. trans.
+To preserve, protect, or keep free from, secure against (any hurt, harm, or loss); to secure against legal responsibility for past or future actions or future actions or events; to give an indemnity to. 2.
+To compensate (a person etc) for loss suffered, expenses incurred, etc) It is of interest to note that one of the sources quoted, dated 1651, gives the definition of indemnify as Save harmless and keep indemnified.
+See also the discussion by the Lord Ordinary of the position in the United States at paras 24 and 25.
+The word indemnify can sometimes mean indemnify a third party.
+As ever, all will depend upon the context.
+Here the context is plain.
+The expression defend, indemnify and hold harmless is used in both senses and is wide enough to include the exclusion of liability for loss incurred by the owner or charterer as the case may be.
+This is plain from clause 33.11(a), which, as appears in the Appendix, provides that the Owner shall defend, indemnify and hold harmless Charterer from any consequential or indirect losses that Vessel Owner may suffer as a result of the performance of the Charter.
+Clause 33.11(b) is a mirror of clause 33.11(a) but provides for the charterer to defend, indemnify and hold harmless the owner in respect of consequential or indirect losses.
+The significance of clauses 33.11(a) and (b) for present purposes is that they each plainly operate as an exceptions clause against liability for loss and that the language used is the same as in clause 33.5.
+They thus show that in this charterparty the expression defend, indemnify and hold harmless is wide enough both to provide a defence for one party to claims made by the other party and to provide an indemnity in respect of the claims of third parties.
+Further, as can plainly be seen from the Appendix, the same expression, namely defend, indemnify and hold harmless, is used throughout clause 33, whether for the protection of the owner or the charterer.
+Clause 33 as a whole represents a carefully considered balance between the interests of the owner on the one hand and those of the charterer on the other.
+I entirely agree with Lord Mances analysis of the clause and was particularly struck by his point at para 58 below that Envirocos submissions can be tested by looking at the opposite sides of the coin.
+In all the circumstances, I would hold that the effect of clause 33.5 is inter alia to exclude the charterers liability in respect of damage to the vessel caused by its own negligence.
+It follows that, on the assumed facts, Enviroco is not entitled to contribution from Asco under section 3(2) of the 1940 Act because it cannot establish that if sued Asco might have been liable to the owner in respect of damage to the vessel (and other losses) caused by the fire: Asco would have had a defence to the owners claim because any such liability was excluded by clause 33.5 of the charterparty.
+The conclusion that Asco would have such a defence makes the remaining question which formed part of the argument irrelevant.
+That question was whether, if clause 33.5 is not an exclusion clause but only an indemnity clause, the position would be different.
+The argument, accepted by the majority in the Inner House, was that in such a case the owner would have been entitled to judgment against Asco because clause 33.5 did not afford it a defence but would have been liable to indemnify Asco against that liability under the clause.
+It was said that in those circumstances, if the action had been brought by the owner against both Enviroco and Asco, as contemplated in section 3(1) of the 1940 Act, it would have been entitled to a joint and several decree against both and thus both would have been found jointly and severally liable in damages within the meaning of section 3(1).
+Again I agree with Lord Mance that that argument cannot be accepted.
+The charterparty is governed by English law and such a claim by the owner would be met by the defence of circuity of action and judgment would be given, not for the owner, but for Asco.
+There would thus be no order of the court that Asco pay damages to the owner.
+I agree with Lord Mance that that would be a matter for English law as the proper law of the charterparty.
+However, if it were a matter of Scots law, the position would be the same.
+It has been held, at any rate in England, that the principle encapsulated in the phrase frustra petis quod mox es restiturus is the same as the English doctrine of circuity of action: see eg Post Office v Hampshire [1980] QB 124 per Geoffrey Lane LJ at page 134.
+The principle is clear from the example of its application given by Lord Normand in Workington Harbour and Dock Board v Towerfield (Owners) [1951] AC 112 at 148, where he said: But if the shipowner might have recovered as damages in an action in negligence the sum paid to the harbour authority under section 74, the decision would be saved frustra petis quod mox es restiturus.
+In French Marine v Compagnie Napolitaine dEclairage et de Chauffage par le Gaz [1921] 2 AC 494 at 510 Lord Dunedin described the principle as a brocard of the civil law and held that judgment for the full charter hire should not be given where, although the hire had been due, it could be shown that it would be repayable in part, because, as Lord Dunedin put it, it would be useless to give judgment for the respondents for more than the sum which was not repayable.
+That principle would apply here if, contrary to the view expressed above, clause 33.5 was no more than a narrow indemnity clause.
+Even if Asco was in principle liable to the owner, it would be entitled to be immediately indemnified by the owner, which would be bound the repay the amount of the liability.
+In these circumstances it would, as Lord Dunedin put it, be useless to give judgment for the owner against Asco.
+Accordingly, if Asco had been sued by the owner, no such judgment would have been given for damages against it.
+It follows that for these reasons, which are the same as those given by Lord Mance, clause 33.5 protects Asco against the possibility of a judgment being given against it, whether it is construed as an exceptions clause or as a narrow indemnity clause.
+CONCLUSION
+For the reasons I have given I would construe the 1940 Act as set out above.
+I would reject the submission that the terms of the charterparty between the owner and Asco are irrelevant and would hold that, whether Enviroco is entitled to a contribution in respect of any liability it would, if sued, have had to the owner arising out of the fire depends upon whether Asco would have had a defence under the charterparty.
+The answer to that question depends upon the true construction of the charterparty.
+As to the construction of the charterparty, I would hold that any liability of Asco to the owner in negligence, or based on its negligence, is excluded by clause 33.5.
+If, contrary to that view, clause 33.5 is not an exclusions clause but a narrow indemnity clause, I would hold that Asco would not, if sued, have been liable to the owner because it would have had a defence of circuity of action or of frustra petis quod mox es restiturus.
+It follows that I would allow the appeal, recall the interlocutor of the Inner House dated 1 May 2009 and restore the interlocutor of the Lord Ordinary dated 23 April 2008 and remit the cause to the Lord Ordinary to proceed as accords.
+APPENDIX 33 EXCEPTIONS/INDEMNITIES 33.1 Clauses 4, 6, 7, 18, 19 and 20 and any provisions for the cessation of hire under any Charter shall be unaffected by the exceptions and indemnities set out in this Clauses 33. 33.2 Subject to Clause 33.1, the Charterer shall defend, indemnify and hold harmless the Owner from and against any and all claims, demands, liabilities, proceedings and causes of action resulting from the loss of or damage to cargo irrespective of the cause of such loss or damage, including where such loss or damage is caused, or contributed to, by the negligence of the Owner. 33.3 Subject to Clause 33.1 the Owner shall defend, indemnify and hold harmless the Charterer, its Affiliates and Customers from and against any and all claims, demands, proceedings and causes of action resulting from the death or illness of, or injury to, any Owners Personnel or anyone for whom the Owner may be responsible on the Vessel, irrespective of the cause of such death, illness, or injury including where such death, illness or injury is caused by, or contributed to, by the negligence of the Charterer, its Affiliates or customers. 33.4 Subject to Clause 33.1, the Charterer shall defend, indemnify and hold harmless the Owner from and against any and all liability, and against any and all claims, demands, proceedings and causes of action resulting from the death or illness of, or injury to, any of the Charterers and its Affiliates and Customers officers and employees. 33.5 Subject to Clause 33.1, the Owner shall defend, indemnify and hold harmless the Charterer, its Affiliates and Customers from and against any and all claims, demands, liabilities, proceedings and causes of action resulting from loss or damage in relation to the Vessel (including total loss) or property of the Owner, including personal property of Owners Personnel or of anyone for whom the Owner may be responsible on the Vessel, irrespective of the cause of loss or damage, including where such loss or damage is caused by, or contributed to, by the negligence of the Charterer, its Affiliates or Customers. 33.6 Subject to Clause 33.1, the Charterer shall defend, indemnify and hold harmless the Owner from and against any and all claims, demands, liabilities, proceedings and causes of action resulting from the loss of or damage to the property of the Charterer, its Affiliates and Customers.
+Immediately on execution of the Charter, and prior to commencement of Services, the Owner undertakes to exchange mutual hold harmless indemnities in respect of property and personnel with the owner of any Offshore Installation providing services under contract to any Customer and to which the Vessel may be ordered by the Charterer. 33.8 Without prejudice to the provisions of Clauses 33.2, 33.4 and 33.6 hereof, and 33.7 subject to Clause 33.1 above, in order that Owners are effectively indemnified pursuant to said clauses 33.2, 33.4 and 33.6 hereof: a) Charterer as agent on behalf of Customers shall indemnify and hold Owners free and harmless from and against any and all claims, demands, liabilities, proceedings and causes of action or costs thereof arising out of or in connection with; i) Loss of or damage to cargo carried on behalf of Customers irrespective of the cause of such loss or damage including where such loss or damage is caused, or contributed to by the negligence of the Owners. ii) Death or illness of, or injury to any of Customers officers and employees. iii) Loss of or damage to the property of the Customers. 33.9 Without prejudice to the provisions of Clauses 33.3 and 33.5 hereof and subject to Clause 33.1, in order that Customers are effectively indemnified pursuant to sub clauses 33.3 and 33.5 hereof: a) Owners shall defend indemnify and hold harmless Charterer as agent on behalf of Customers from and against any and all claims, demands, liabilities, proceedings and causes of action or costs thereof, whether arising in contract, tort or in any other way out of or in connection with: i) Death or illness of, or injury to any Owners Personnel or anyone for whom the Owner may be responsible on the vessel, irrespective of the cause of such death, illness or injury including where such death, illness or injury is caused by, or contributed to by the negligence of the Charterer, its Affiliates or Customers. ii) Loss or damage in relation to the Vessel (including total loss) or property of the Owner, including personal property of Owners Personnel, or of anyone for whom the Owner may be responsible on the vessel, irrespective of the cause of loss or damage, including where such loss or damage is caused or contributed to by the negligence of Charterer, its Affiliates or Customers. 33.10 Charterer confirms and owner accepts that it is empowered to act as agent on behalf of Customers only for the purpose of giving, receiving and when necessary enforcing indemnities pursuant to sub clause 33.8 and 33.9 and confirms that in all other respects and for all other purposes of this Charter Party, it is acting as principal. 33.11 Notwithstanding any other provision of this Clause 33 or any other provision of this Charter: a) Owner shall defend, indemnify and hold harmless Charterer from any consequential or indirect losses that Vessel Owner may suffer as a result of the performance of the Charter. b) Charterer shall defend, indemnify and hold harmless Vessel Owner from any consequential or indirect losses that Charterer may suffer as a result of the performance of the Charter. c) The expression consequential or indirect losses includes by way of example but is not limited to loss of anticipated profits, loss of use, loss of production and business interruption whether or not foreseeable at the date hereof and irrespective of the cause of such loss or damage, including amongst other things where such loss or damage is caused by or contributed to by the negligence on the part of either Vessel Owner or Charterer. d) For the avoidance of doubt, the provisions of this Sub Clause 33.11 shall remain in full force and effect notwithstanding any breach of, or termination of, this Charter on any grounds whatsoever.
+LORD HOPE
+I agree with Lord Clarke and Lord Mance, for the reasons they give, that the appeal must be allowed and I too would restore the interlocutor of the Lord Ordinary.
+The meaning to be given to the words if sued in section 3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 has puzzled generations of Scots lawyers ever since that provision was enacted.
+No doubt the draftsman saw no need to elaborate.
+He must have assumed that section 3(1) and section 3(2) would be read together, and it is obvious that the second subsection takes its meaning from the first.
+Although section 3(2) does not say this in so many words, the phrase found liable in any such action as aforesaid is a sufficient indication.
+It must refer back to the phrase in any action of damages in section 3(1).
+So the situation that is contemplated in both cases is one where the party who seeks the relief has been sued to judgment.
+If sued in section 3(2) must therefore mean, in regard to the third party, that it is to be assumed that he has been sued to judgment also.
+But this approach to the meaning of these words still leaves some questions unanswered.
+It is normal practice for the third party procedure to be used, as it has been in this case, by a defender to claim relief under section 3(2) from a party whom the pursuer has not called as a defender in the same action.
+This procedure cannot have been in contemplation in 1940, as it had only recently been abolished by an Act of Sederunt of 25 May 1937 (SR&O 1937/180).
+The reasons for this are obscure, as the procedure which was first introduced only a short time previously by rule 20(d) of the Rules of the Court of Session 1934 (SR&O 1934/772) had been found to work well.
+It has been suggested that it was unpopular with the judges, perhaps because they found it difficult to retain control of an enquiry into the facts where the interests involved were many and varied: see Third Party Notice, 1937 SLT (News) 98.
+However that may be, the procedure was re introduced by rule 85(c) of the Rules of Court of Session 1965 (SI 1965/321): see now chapter 26 of the Rules of the Court of Session 1994 (SI 1994/1443).
+It is also available in the sheriff court under the Ordinary Cause Rules 1993 (SI 1993/1956), chapter 20.
+This procedure enables questions arising out of one matter including claims by a defender for relief against a third party to be dealt with in one action, thus saving time and expense, even if this deprives a pursuer of his right to jury trial: Beedie v Norrie 1966 SC 207.
+As Lord Clarke points out, section 3(2) contemplates that no liability for contribution can arise until the defender has paid the pursuer.
+But that is not how the third party procedure works in practice.
+It is not necessary for the defender first to be found liable and then to pay the pursuer before making his claim for contribution in the same action.
+As the Lord Ordinary has shown in his admirably succinct opinion, several points arising from the phrase if sued have been settled by judicial decision.
+First, as if sued means if sued to judgment, the defender is not deprived of his right of relief if the pursuer, having originally sued the third party as well, abandons his action against the third party so that he is released from the process without having a judgment pronounced in his favour: Singer v Gray Tool Co (Europe) Ltd 1984 SLT 149.
+As Lord President Emslie described this situation in that case at p 151, the third party has merely been the beneficiary of a formal order pronounced as a result of the pursuers decision to prosecute the action against him no further.
+Secondly, the defender is not disabled from seeking relief against the third party by reason of the fact that the pursuers claim against him has been held to have been, or would be, time barred: Dormer v Melville Dundas & Whitson Ltd 1989 SC 288.
+This is because the words if sued assume that the third party has been relevantly, competently and timeously sued by the pursuer in other words, that all the essential preliminaries to a determination of the other partys liability have been satisfied: Central SMT Co Ltd v Lanarkshire County Council 1949 SC 450, 460, per Lord Keith; see also Singer v Gray Tool Co (Europe) Ltd 1984 SLT 149, 151; Comex Houlder Diving Ltd v Colne Fishing Co Ltd 1987 SLT 13, 19; Taft v Clyde Marine Motoring Co Ltd 1990 SLT 170, 175, per Lord Dervaird.
+The question whether the third party has been sued relevantly, competently and timeously falls to be tested at the date when the pursuer sued the person who is seeking relief.
+It is enough that he could have sued the third party at that date: George Wimpey & Co Ltd v British Overseas Airways Corporation [1955] AC 169, 186, per Lord Reid; Dormer v Melville Dundas & Whitson Ltd, pp 299 300.
+The question which has arisen in this case was not resolved by these decisions.
+Cross indemnities of the kind seen in this charterparty are no doubt commonplace in the oil and gas industry.
+But they are not usually met with in the situations that have given rise to most claims for damages for personal injury in the Court of Session.
+So that court has not had occasion until now to consider the effect of a contract between the pursuer and the party from whom a contribution is sought which provides that party with a defence to the pursuers claim or entitles him to an indemnity from the pursuer under the contract.
+Difficulty has however been caused by Lord President Emslies observation in Singer v Gray Tool Co (Europe) Ltd 1984 SLT 149, 150, that section 3(2) does not put into the hands of the pursuer at his whim to defeat the rights of a person to obtain relief against a joint wrongdoer.
+Lord Robertson had made a comment to the opposite effect in Travers v Neilson 1967 SC 155, 160 where, having held that as the pursuer had abandoned his action against the third party the defenders claim for a contribution by way of a third party notice was incompetent, he expressed regret at the fact that the right to a contribution was capable of being defeated at the pursuers whim.
+The Lord Presidents statement in Singer disapproving what Lord Robertson had said was repeated by Lord Allanbridge when he was delivering the opinion of the First Division in Dormer v Melville Dundas & Whitson Ltd. At p 300 he said that it was never within the power or whim of an injured party to determine by his own actings whether or not one joint wrongdoer would be liable to relieve another in respect of damages payable to the injured party.
+These rather sweeping observations were taken by Lord Carloway in the Inner House in this case to mean that the pursuer cannot exclude the right of relief by a contract which he enters into with the third party before the accident.
+In para 53 he said that the decisions which had analysed section 3 had all emphasised that the relevant right of relief was not capable of being discharged or extinguished by the actings of others, notably the victim of the wrongdoing.
+Referring to Lord President Emslies statement in Singer v Gray Tool Co (Europe) Ltd 1984 SLT 149, 150 he said: Although it could be said that entering into a contract prior to an accident forming the subject matter of a dispute ought not to be categorised as a whim, nevertheless the point is well made that a victim ought not, standing the existence of a general right of relief, to be able to extinguish that right by a private arrangement with other potential wrongdoers, whether that arrangement is made before or after the accident.
+There is nothing in the language of section 3 that supports this approach.
+There is no indication in either section 3(1) or section 3(2) that the ordinary rules by which parties are free to enter into a contract which apportions the risk of loss or damage between them are suspended.
+In this situation the words found liable are to be given their ordinary meaning, which places no restriction on the grounds on which the third party may be found not liable.
+Mr Howie QC for the respondent, Enviroco, had to accept that if the owner, Farstad, had adopted Envirocos case against Asco, with the result that Envirocos claim for a contribution from Asco would have been brought under section 3(1) of the 1940 Act, an exclusion clause in its contract with the owner would have provided Asco with a complete defence to the owners claim.
+Asco would have been found not liable to the owner in that action.
+The owners claim for damages would have been excluded by the exclusion clause.
+It follows from this concession, which I think he could not have withheld, that an exclusion clause in a contract between the third party and the pursuer will defeat the defenders claim for a contribution from the third party under section 3(2) too.
+This is because the third party, if he had been sued to judgment by the pursuer, would have been held not liable.
+The pre requisite for a successful claim under section 3(2) would be incapable of being met.
+I respectfully agree with Lord Clarke that the effect of clause 33.5 of the charterparty is to exclude any liability of Asco to the owner in negligence.
+That being so, Envirocos claim for a contribution from Asco must be held to be irrelevant.
+I would have reached the same conclusion if, on a proper construction of the charterparty, the clause was to be regarded as providing Asco with an indemnity.
+The fact that the indemnity was provided for under a private contractual arrangement between the injured party and one of the alleged joint wrongdoers does not, for the reasons already given, provide a ground for disregarding its effect.
+The defence of circuity of action is not, in so many words, known to Scots law.
+But the underlying principle certainly is, though it was overlooked by the majority in the Inner House.
+Among the various examples of references to the brocard frustra petis quod mox es restiturus that could be mentioned is Lord Camerons observation in Nordic Travel Ltd v Scotprint Ltd 1980 SC 1, 26, that the pursuers counsel, Mr Bruce, did not suggest that a successful argument could be made founding upon it to defeat the defenders case that, as it was in control of his own assets, it was entitled to pay on demand the debt which was due.
+Ascos right to an indemnity from the owner for the losses claimed for would be sufficient to defeat the owners claim upon the application of this principle.
+The result is that, for the purposes of section 3(2), Asco would, if sued, be found not liable to it in respect of the loss and damages on which the action against Enviroco is founded.
+LORD RODGER
+I am in complete agreement with the judgments of Lord Clarke and Lord Mance.
+This footnote simply indicates that the Courts construction of section 3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 (the 1940 Act) is in line with the established case law of the courts in New Zealand and Canada on similar provisions.
+In Herrick v Leonard and Dingley Ltd [1975] 2 NZLR 566 the plaintiffs car was irreparably damaged while stevedores were unloading it from a ship.
+The plaintiff sued the stevedores, who were found liable in negligence.
+They blamed the first third party, the charterers of the ship, and the second third party, the agents of its owner.
+The third parties argued that the defendant stevedores were not entitled to any contribution from them because there were exclusion clauses in the contract of carriage which exempted them from liability to the plaintiff for loss or damage to his car.
+McMullin J held that the third parties had not been negligent.
+But he went on to consider the position if they had been.
+Under section 17(1)(c) of the Law Reform Act 1936, as amended by section 35(2) of the Limitation Act 1950, a tortfeasor may recover contribution from any other tortfeasor who is, or would if sued in time have been, liable in respect of the same damage.
+His Honour observed, at p 572, lines 42 51: Before a claim under that subsection can succeed, the person from whom the contribution is sought must be a tortfeasor vis vis the plaintiff and, if sued, have been liable in respect of the same damage for which the other tortfeasor is held liable.
+Had the plaintiff sued either of the third parties, he would have been met by conditions 1, 2 and 7 of the contract.
+Consequently, the defendant would not have been able to succeed against either of the third parties for contribution, even if negligence or breach of an implied term had been proved.
+Moving on to Canada, in Giffels Associates Ltd v Eastern Construction Co Ltd [1978] 2 SCR 1346, engineers who had been found liable in damages for the plaintiffs loss arising from a defective roof, sought contribution from the main contractor, Eastern Construction.
+Under a term in the plaintiffs contract with Eastern, the plaintiffs could not sue Eastern for faulty materials or workmanship which appeared more than a year after the date of substantial completion.
+It was agreed that the period had elapsed several years before the problem with the roof emerged.
+Section 2(1) of the Negligence Act, RSO 1970, c 296 was in comparable terms to section 3(1) of the 1940 Act.
+The Supreme Court of Canada held that Giffels claim for contribution from Eastern must fail.
+Laskin CJ said, at pp 1355 1356: I am prepared to assume, for the purposes of this case, that where there are two contractors, each of which has a separate contract with a plaintiff who suffers the same damage from concurrent breaches of those contracts, it would be inequitable that one of the contractors bear the entire brunt of the plaintiffs loss, even where the plaintiff chooses to sue only that one and not both as in this case.
+It is, however, open to any contractor (unless precluded by law) to protect itself from liability under its contract by a term thereof, and it does not then lie in the mouth of the other to claim contribution in such a case.
+The contractor which has so protected itself cannot be said to have contributed to any actionable loss by the plaintiff.
+This result must follow whether the claim for contribution is based on a liability to the plaintiff in tort for negligence or on contractual liability.
+In either case there is a contractual shield which forecloses the plaintiff against the protected contractor, and the other contractor cannot assert a right to go behind it to compel the former to share the burden of compensating the plaintiff for its loss.
+What we have here is a case where the immunity of Eastern from liability did not arise from some independent transaction or settlement made after an actionable breach of contract or duty, but rather it arose under the very instrument by which Easterns relationship with the plaintiff was established.
+Giffels had no cross contractual relationship with Eastern upon which to base a claim for contribution; and once it was clear, as it was here, that Eastern could not be held accountable to the plaintiff for the latters loss, any ground upon which Giffels could seek to burden Eastern with a share of that loss disappeared.
+That approach was applied by Iacobucci J, on behalf of the majority of the Supreme Court, in Bow Valley Husky (Bermuda) Ltd v Saint John Shipbuilding Ltd [1997] 3 SCR 1210, at para 123, and by Finch JA, giving the judgment of the British Columbia Court of Appeal, in Laing Property Corporation v All Seasons Display Inc (2000) 190 DLR (4th) 1, 16 20.
+There is no doctrine or principle of Scots Law which would dictate, or even suggest, that a different approach should be applied to section 3 of the 1940 Act.
+On the contrary, the policy which underlies the decisions in these cases is equally applicable in Scots Law.
+LORD MANCE
+I agree with the judgment of Lord Clarke, as well as with his endorsement of the lucid and compelling judgment given by the Lord Ordinary ([2008] CSOH 63; 2008 SLT 703).
+Were it not for the opposite result reached by the majority in the Inner House, I would have thought it unnecessary for anything more to be said.
+Enviroco is being sued in Scotland in delict for the damage to Farstads oil supply vessel, MV Far Service.
+The issue before us is whether, assuming that Enviroco is held liable to pay and pays Farstad damages in this action, ASCO as charterer of MV Far Service is a person who, if sued, might also have been held liable in respect of the [same] damage within section 3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940.
+That issue breaks down into two questions: (a) can Asco fall within section 3(2) if it was, under the terms of its charter of the vessel from Farstad, never under any liability to Farstad for such damage? (b) if the answer is negative, did the terms of the charterparty mean that Asco never had any such liability? The first question is one of Scots law.
+The second is one of English law, to which the charterparty was expressly subject (clause 48).
+Before the Lord Ordinary, Enviroco conceded that the answer to question (a) was in the negative.
+But in the Inner House 2009 SC 489 Lord Carloway regarded the concession as misplaced.
+He said that The fact that a party, had he been sued by the victim, had such a defence to the action, including one based on a contractual indemnity, or even an exclusion of liability clause, is irrelevant (paragraph 54).
+He cited statements in the case law that, where a victim (A) obtains judgment against one wrongdoer (B), that wrongdoer may obtain contribution from any other wrongdoer (C) liable in respect of the same damage, even though any claim by (A) against (C) was barred by limitation before the date when (A) sued (B) (Central S.M.T. Co. v Lanarkshire C.C. 1949 S.C. 450, 461 per Lord Keith) and even though (B) has obtained a decree of absolvitor as the result of the abandonment by A of proceedings against him, or such proceedings have been struck out for want of prosecution (Singer v Gray Tool Co. (Europe) Ltd. 1984 S.L.T. 149, 150 151 per Lord Emslie).
+These statements were based on the view that Section 3(2) does not put it into the hands of the pursuer at his whim to defeat the rights of a person to obtain relief against a joint wrongdoer and that the words if sued assume that the other party has been relevantly, competently and timeously sued (Central S.M.T., p. 461; Singer, 150).
+That view could be justified if the words if sued in section 3(2) could be read as referring to hypothetical proceedings brought against (C) immediately after the wrongdoing, rather than at the same time as (As) actual proceedings against (B).
+It is unnecessary to consider the correctness or otherwise of either the statements or this possible justification on this appeal.
+Whether correct or not, they have nothing to do with the situation where (C) could never have been sued successfully by (A); and where the reason for this could never be described as being the result of a whim on the part of (A), but was the result of deliberate contractual arrangements apportioning risk between (A) and (C).
+Subsections (1) and (2) of section 3 were on their face designed to dovetail with each other.
+The first deals with the situation where (B) and (C) are sued to judgment in one action; the second with the situation where only (B) is sued to judgment, but (C) if sued, might also have been held liable.
+They cover only limited situations, leaving uncovered, for example, that where (B) recognising his liability to (A) pays up without judgment ever being given against him (although a formal decree giving effect to an agreed settlement was held sufficient for the purposes of subsection (2) in Comex Houlder Diving Ltd. v Colne Fishing Co. Ltd. 1987 S.C. (H.L.) 85).
+If (B) and (C) are sued in one action, and (C) defeats the claim by reference to a contractual exceptions clause, there can be no question of (B) claiming contribution from (C) under subsection (1).
+There is neither logic nor plausibility in an analysis whereby (B) is in a better, and (C) in a worse position, as regards contribution, if (A) never sues (C), perhaps because (A) appreciates, realistically, that such a suit would inevitably fail.
+The word might is used in subsection (2) because (C) has not in fact been sued, and not because it is sufficient that, in some parallel universe, (C) might have been party to some different contractual arrangement under which he might have undertaken a contractual responsibility which it can be shown in fact that he never had.
+Lord Carloway also considered that the view which he took of the scope of section 3(2) avoided an inequitable result (paragraph 55), in that it might lead, as the Lord Ordinary had said (paragraph 31), to a party who has only a minor responsibility for causing an accident having to bear the entire financial loss.
+But no wrongdoer has a right to assume that there will be other wrongdoers available to contribute to the liability which he incurs; and there are also many reasons, legal and factual, why any expectation which he may unwisely hold to that effect may be frustrated.
+In the present case, the consequence of giving effect to Lord Carloways view would be to ignore the actual legal position between (A) and (C) and to introduce by the back door a liability which was barred at the front door.
+Lady Patons view that the result achieved by the majority decision was broadly equitable (paragraph 43) was based on the consideration (which is common ground) that ASCO would, under the charterparty, be able to call upon Farstad to indemnify it in respect of any liability which Asco might have to make by way of contribution to Enviroco, so that Farstad would receive reduced damages.
+But the existence of such an indemnity is a special circumstance, which in many contexts would not be replicated with the result that a person in (Cs) position would indirectly bear a liability for which it never contracted.
+I turn to the construction of the charterparty, and of clause 33.5 in particular.
+It is argued that clause 33.5 does no more than require Farstad to indemnify Asco in respect of third party liabilities, such as, here, any contribution claim that Enviroco may have against Asco.
+The majority in the Inner House accepted this (Lady Paton and Lord Carloway, paragraphs 40 and 58).
+However, clause 33 is headed Exceptions/Indemnities and clause 33.1 provides that various other charterparty clauses are unaffected by the exceptions and indemnities set out in this Clause 33.
+No distinction appears between exceptions and indemnities in any part or sub clause of clause 33.
+Under each of sub clauses 33.2 to 33.6, 33.9 and 33.11, either Farstad, as the owner, or Asco, as the charterer, agrees to defend, indemnify and hold harmless the other, from and against any and all claims, demands, liabilities, proceedings and causes of action (sub clauses 33.2, 33.5, 33.6, 33.8 and 33.9) or from and against the same risks except for liabilities (sub clauses 33.3 and 33.4), though it is hard to think that this could make any difference.
+Clause 33.8 provides that, in order that Owners are effectively indemnified pursuant to . clauses 33.2, 33.4 and 33.6 Asco as agent on behalf of Customers shall indemnify and hold Owners free and harmless.
+In the case of sub clause 33.11, Farstads agreement is to defend, indemnify and hold harmless Charterer from any consequential or indirect losses that Vessel Owner may suffer as a result of the performance of the Charter.
+Farstad was the vessels owner and this sub clause indicates that the phrase defend, indemnify and hold harmless is used in a sense wide enough to embrace agreement to exclude the other contracting party from responsibility.
+That to my mind is anyway the sense in which it is used in all these clauses.
+Both the words hold harmless and indeed indemnify alone can have that sense.
+On Envirocos construction, the parties provided that Asco should be indemnified against third party claims, demands and liabilities it incurred resulting from loss or damage in relation to the Vessel (including total loss) or property of the Owner [Farstad], but made no provision at all for claims, demands, etc. by Farstad itself, so leaving Farstad free to make any claims and demands and to establish any liability it wished as against Asco for damage to Farstads own vessel.
+That makes no sense as a contractual scheme.
+Lady Paton thought that, on the basis of Farstads case, words such as arising from a claim made by any party other than Farstad would have to be implied after the word liabilities in clause 33.5 for if they were not implied, liabilities would prima facie include a liability to Farstad arising from negligence on the part of Asco causing loss or damage in relation to the vessel (para 39).
+But this is precisely what the parties intended to exclude with the obvious concomitant that Farstad should insure against all risk of loss to their property, and that of their personnel and others for whom they were responsible (while Asco would insure against all such risks to their own as well as their affiliates and customers property: clause 33.6).
+The point can be tested by looking at the opposite side of the coin claims from Ascos side against Farstad.
+Clauses 33.2, 33.6 and 33.8 relate to claims arising from loss or damage to cargo or other property, including that of Ascos customers.
+On Envirocos case, the parties were careful to provide Farstad with an indemnity in relation to any exposure it might incur towards third parties on that score, but entirely content to leave Farstad open to claims or demands from or liabilities towards Asco itself.
+Again, that makes no sense of the language.
+The language therefore operates as a series of indemnities against third party exposure combined with exclusions of direct exposure to the other contracting party.
+This is both what the heading of clause 33 and what common commercial sense would lead one to expect under a scheme clearly intended to divide risk between the contracting parties.
+It is unnecessary to consider the position on the unreal hypothesis that clause 33.5 operates as a pure indemnity, enabling Farstad to make any claims or demands and to assert any liability it liked as against Asco in respect of loss or damage suffered by Farstad, but requiring Farstad to indemnify Asco for the claims and demands so made and any liabilities so established.
+The consequence of this hypothesis would seem to me probably a matter for English law, as the law governing the charterparty, rather than Scottish law.
+But, under both English and Scottish law, the action would clearly fail, whether for circuity of action in English terminology or pursuant to the Scots maxim frustra petis quod mox es restiturus: see for example Workington Harbour and Dock Board v Towerfield (Owners) [1951] AC 112, 148, per Lord Normand and 152 per Lord Oaksey; Post Office v Hampshire County Council [1980] QB 124; and Rover International Ltd. v Cannon Film Sales Ltd. [1989] 1 WLR 912, especially at 936C F per Dillon LJ.
+On that basis, too, it could not be said that Asco was a person, who, if sued, might also have been held liable in respect of the loss or damage to the MV Far Service.
+I would allow the appeal, recall the Inner Houses interlocutor dated 1 May 2009, restore the Lord Ordinarys interlocutor dated 23 April 2008 and remit the cause to the Lord Ordinary to proceed as accords.
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+The Scottish Parliament was established by section 1 of the Scotland Act 1998.
+It was opened on 1 July 1999.
+Section 29(1) of the Act provides: An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.
+This provision lies at the heart of the scheme of devolution to which the Act gives effect.
+Section 29 has to be read together with Schedule 4 which protects certain enactments from modification, and then with section 30 and Schedule 5 which defines reserved matters.
+These are matters reserved to the UK Parliament, and which are therefore excluded from the legislative competence of the Scottish Parliament.
+The area of competence that is identified by this group of provisions forms the basis for a series of sections that are designed to ensure that the Scottish Parliament confines itself to the defined areas of competence: section 31 (scrutiny of Bills before introduction), section 32 (the responsibility of the Presiding Officer), section 33 (reference of Bills to the Judicial Committee now the UK Supreme Court for scrutiny), section 35 (the power of the Secretary of State to intervene in certain cases) and sections 98 to 103 and Schedule 6 (post enactment adjudication of issues about legislative competence by the courts).
+The White Paper, Scotlands Parliament, Cm 3658 (1997), para 4.3, contrasted this scheme of devolution with that which had been laid down by the Scotland Act 1978, which was repealed because less than 40 per cent of the persons entitled to vote in the referendum which was required by section 85 of that Act voted in favour of it.
+Under that Act legislative competence was to be transferred to the Scottish Assembly in specifically defined particular groups, further defined by reference to a long list of existing statutes.
+That scheme, which would have required frequent updating by the UK Parliament, was seen to be incompatible with the aim that the White Paper expressed of ensuring maximum clarity and stability.
+While the scheme in the 1998 Act may not strike one as a model of clarity, it does appear so far to have achieved the aim of stability.
+Of course, harmony between the governments at Westminster and Holyrood until the May 2007 elections to the Scottish Parliament contributed to this process, as did frequent use of legislative consent motions (also known as Sewel motions, named after Lord Sewel, Parliamentary Under Secretary of State for Scotland during the passage of the Scotland Act 1998) passed by the Scottish Parliament agreeing that the UK Parliament might pass legislation on a devolved issue extending to Scotland.
+But it is a remarkable fact that the myriad of devolution issues that have come before the courts for determination since May 1999 have been devoted almost exclusively to the exercise of functions in criminal cases by the Lord Advocate.
+Logan v Harrower [2008] HCJAC 61, 2008 SLT 1049 was the first case that brought the extent of the legislative competence of the Scottish Parliament under judicial scrutiny on grounds other than compliance with Convention rights.
+As in the case of the appeals that are now before this court, it arose of out of a prosecution for contraventions of section 103(1)(b) of the Road Traffic Act 1988.
+There was no appeal against the appeal courts determination to the Judicial Committee.
+The question whether an Act of the Scottish Parliament is within the legislative competence of the Parliament is a devolution issue: Schedule 6, para 1(a).
+So it is for the courts to decide whether an Act which is challenged is within or outside competence.
+But the judicial function in this regard has been carefully structured.
+It is not for the judges to say whether legislation on any particular issue is better made by the Scottish Parliament at Holyrood or by the UK Parliament at Westminster.
+How that issue is to be determined has already been addressed by the legislators.
+It must be decided according to particular rules that the Scotland Act 1998 has laid down.
+But those rules, just like any other rules, have to be interpreted.
+That is the courts function.
+It is for the court to say what the rules mean and how, in a case such as this, they must be applied in order to resolve the issue whether the measure in question was within competence.
+These proceedings
+Section 33 of and Part I of Schedule 2 to the Road Traffic Offenders Act 1988 provide that the offence of driving while disqualified under section 103(1)(b) of the Road Traffic Act 1988 may be prosecuted in Scotland either summarily or on indictment.
+As originally enacted, the maximum punishment for that offence if prosecuted summarily in Scotland was six months or the statutory maximum fine or both.
+If it was prosecuted on indictment in Scotland the maximum sentence was twelve months or a fine or both.
+By section 45 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007, the provisions of which I shall examine in more detail later, the Scottish Parliament increased to twelve months the maximum sentence that might be imposed for this offence under the 1998 Act by the sheriff sitting summarily.
+That section came into force on 10 December 2007: the Criminal Proceedings etc (Reform) (Scotland) Act 2007 (Commencement No 2 and Transitional Provisions and Savings) Order 2007 (SSI 2007/479).
+Sean Martin was charged on summary complaint at Oban with a co accused named Rodney Cuthill.
+The complaint contained fourteen charges, of which charges 1, 2, 8 and 9 were directed against Martin.
+In charges 1 and 8 it was alleged that he drove a motor vehicle on a road while disqualified, contrary to section 103(1)(b) of the Road Traffic Act 1988, and that he committed those offences while on bail.
+On 14 December 2007 he pled guilty to charges 1 and 8 and to the other two charges.
+On 17 December 2007 he was sentenced to 12 months imprisonment on charges 1 and 8, of which four months was attributed to the fact that he committed the offences while on bail.
+On 12 March 2008 he presented a Bill of Suspension to the High Court of Justiciary in which he sought suspension of the sentence of imprisonment on the ground that the relevant provisions of the Criminal Proceedings etc (Reform) (Scotland) Act 2007 were beyond the legislative competence of the Scottish Parliament.
+On 28 March 2008 he was granted interim liberation pending the determination of his Bill of Suspension.
+Ross Miller was charged on summary complaint at Stirling.
+The complaint contained three charges.
+In charge 1 it was alleged that he drove a motor vehicle on a road while disqualified, contrary to section 103(1)(b) of the Road Traffic Act 1988.
+On 24 April 2008 he pled guilty to charge 1 and to one of the other charges and was remanded in custody.
+On 14 May 2008 he was sentenced to seven months imprisonment on charge 1, back dated to 24 April 2008.
+On 20 June 2008 he presented a Bill of Suspension to the High Court of Justiciary in which he sought suspension of the sentence of imprisonment on the same grounds as Martin.
+He applied for interim liberation, but on 3 July 2008 he withdrew that application.
+Unlike Martin, he has now served his sentence.
+The two Bills of Suspension came before the appeal court for a hearing on 6 January 2009.
+Devolution minutes identifying the devolution issue in these proceedings had also been lodged.
+The court saw no reason for distinguishing these cases from its previous decision in Logan v Harrower, in which it held that the increase in the sentencing power of the sheriff sitting summarily by section 45 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007 was within the legislative competence of the Scottish Parliament.
+As nothing had been said to suggest that that decision was wrong, it refused to pass the Bills.
+It also refused the devolution minutes.
+On 30 January and 24 February 2009 respectively it granted the appellants leave to appeal to this court.
+As this narrative shows, the only reasoned decision on this issue by the appeal court is to be found in Logan v Harrower.
+In para 24 of that case, Lord Nimmo Smith, delivering the opinion of the court, said: We agree with the advocate depute that, in the present case, the purpose of the provision is to make Scots criminal law with regard to penalties, procedure and jurisdiction in the sheriff court apply consistently to both common law offences and statutory offences.
+As provided by para 3 in part I of Schedule 4 to the Scotland Act, the modifications made by section 45 of the 2007 Act to the reading of Part I of Schedule 2 to the Road Traffic Offenders Act 1988 are merely incidental to, or consequential on, the more general aspect of the provision, which relates generally to the powers of the sheriff in relation to statutory offences, whatever their origin; and the modifications do not have a greater effect upon reserved matters than is necessary to give effect to the purpose of the provision in section 45.
+The legislative competence rules
+The scheme of devolution of legislative power which the Scotland Act 1998 sets out recognises that it was not possible, if a workable system was to be created, for reserved and devolved areas to be divided into precisely defined, watertight compartments.
+Some degree of overlap was inevitable, for the reasons explained by Lord Rodger in his discussion of the division of responsibility on matters of policy; see paras [73] and [74].
+This is a familiar phenomenon in the case of federal systems such as those in Canada and Australia, where legislative competence is divided between the Dominion and the Provinces or the Commonwealth and the States.
+In Prafulla Kumar Mukherjee v Bank of Commerce Ltd, Khulna (1947) LR 74 Indian Appeals 23 the Judicial Committee rejected the argument that the principles which obtain in Canada and Australia had no application in India.
+Lord Porter gave this explanation at p 42: It is not possible to make so clean a cut between the powers of various legislatures: they are bound to overlap from time to time.
+The rule that was evolved by the Judicial Committee was to examine the statute that was impugned to ascertain its pith and substance, or its true nature and character, to determine whether it was legislation with respect to matters that were in the prohibited or permitted sphere.
+The phrase pith and substance was first used by Lord Watson in Union Colliery Co of British Columbia Ltd v Bryden [1899] AC 580, 587.
+The phrase true nature and character was first used in Russell v The Queen (1882) 7 App Cas 829, 839 840.
+The principles that these phrases embody are sometimes referred to, by a word that went out of fashion in mediaeval times, as the respection doctrine.
+In Prafulla Kumar Mukherjee v Bank of Commerce Ltd, Khulna having referred to the rule and found that it applied to Indian as well as Dominion legislation, Lord Porter went on to say this at p 43: No doubt experience of past difficulties has made the provisions of the Indian Act more exact in some particulars .
+But the overlapping of subject matter is not avoided by substituting three lists for two, or even by arranging for a hierarchy of jurisdictions.
+Subjects must still overlap, and where they do the question must be asked what in pith and substance is the effect of the enactment of which complaint is made, and in what list is its true nature and character to be found.
+If these questions could not be asked, much beneficent legislation would be stifled at birth, and many of the subjects entrusted to provincial legislation could never effectively be dealt with.
+The same point had already been made by Lord Atkin in Gallagher v Lynn [1937] AC 863, which was an appeal from Northern Ireland.
+Section 4 of the Government of Ireland Act 1920 provided that the Parliament of Northern Ireland had power to make laws for the peace, order and good government of Northern Ireland, but not to make laws in respect of, among other things, trade with any place out of Northern Ireland.
+He held that an Act regulating the supply of milk in Northern Ireland which imposed controls on every person who within Northern Ireland sold or exposed for sale milk, whether produced within or without the territory of Northern Ireland, was a law for the peace, order and good government of Northern Ireland in respect of precautions taken to secured the health of its inhabitants, not a law in respect of trade.
+At p 870, explaining what was meant by the pith and substance doctrine, he said: If, on the view of the statute as a whole, you find that the substance of the legislation is within the express powers, then it is not invalidated if incidentally it affects matters which are outside the authorized field.
+The legislation must not under the guise of dealing with one matter in fact encroach upon the forbidden field.
+Nor are you to look only at the object of the legislator.
+An Act may have a perfectly lawful object, eg to promote the health of the inhabitants, but may seek to achieve that object by invalid methods, eg a direct prohibition of any trade with a foreign country.
+The rule that was evolved and applied in these cases, among others, provides the background to the scheme that is now to be found in the Scotland Act.
+It was referred to at the committee stage in the House of Lords by Lord Sewel: Hansard HL Debates (21 July 1998), vol 592, col 818 et seq.
+The scheme seeks to give effect to the rule.
+Lord Sewel, recognising that a degree of trespass into reserved areas was inevitable, said that it was intended that any argument as to whether a provision in an Act of the Scottish Parliament relates to a reserved matter must be decided by reference to its pith and substance or its purpose and if its purpose is a devolved one it is not to be outside legislative competence merely because it affects a reserved matter: col 819.
+The question whether that aim has been achieved must be determined by examining the provisions of the Scotland Act in which the scheme is laid out.
+While the phrase pith and substance was used while these provisions were being debated, it does not appear in any of them.
+The idea has informed the statutory language, and the rules to which the court must give effect are those laid down by the statute.
+As to what they mean, the Scotland Act provides its own dictionary.
+Section 29, which must now be quoted in full, provides as follows: (1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. (2) A provision is outside that competence so far as any of the following paragraphs apply (a) it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland, (b) it relates to reserved matters, (c) it is in breach of the restrictions in Schedule 4, (d) it is incompatible with any of the Convention rights or with Community law, (e) it would remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths in Scotland. (3) For the purposes of this section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (4), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances. (4) A provision which (a) would otherwise not relate to reserved matters, but (b) makes modifications of Scots private law, or Scots criminal law, as it applies to reserved matters, is to be treated as relating to reserved matters unless the purpose of the provision is to make the law in question apply consistently to reserved matters and otherwise.
+The paragraphs of section 29(2) that require to be examined in this case are paras (b) and (c).
+The first question is whether section 45 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007 relates to a reserved matter.
+Reserved matters are the matters reserved to Westminster by section 30(1) of the Scotland Act, which gives effect to the list of matters in Schedule 5.
+Para 1 of Part II of Schedule 5 provides that the matters to which any of the sections in the Part apply are reserved matters for the purposes of the Act.
+Head E Transport lists among the subject matter of section E1, which applies to Road Transport, the following: (d) the Road Traffic Act 1988 and the Road Traffic Offenders Act 1988.
+Section 45 of the 2007 Act does not refer expressly to any of the provisions of the Road Traffic Act 1988 or the Road Traffic Offenders Act 1988.
+But, as it applies to offences under enactments passed before the 2007 Act generally, it must be taken to refer to them by implication.
+Their subject matter is a reserved matter.
+The question whether a provision relates to a reserved matter in terms of section 29(2)(b) is to be determined by reference to the purpose of the provision, applying the rule set out in section 29(3).
+This rule lays down the primary test of what is meant by purpose.
+But it is necessary to have regard also to section 29(4) which deals with a special category of overlap between reserved matters and matters which are not reserved that is in point in this case.
+This is because section 126(5) of the Scotland Act provides that references in the Act to Scots criminal law include criminal offences, jurisdiction, evidence, procedure and penalties and the treatment of offenders, and because section 45 of the 2007 Act deals with what the head note to Part 3 of that Act refers to as penalties.
+The list of reserved matters has been drawn up by reference to different aspects of executive or governmental responsibility.
+But the spheres of activity embraced by Scots private law and Scots criminal law, which are not reserved, do not respect those boundaries.
+They extend across all of them.
+The regulation of both devolved matters and reserved matters within Scotland is likely to involve questions of Scots private law and Scots criminal law.
+Section 29(4) does not apply if, applying the test laid down by section 29(2), the provision in question has already been found otherwise to relate to a reserved matter.
+That is the effect of para (a) of this subsection.
+It does apply, however, if it makes modifications of Scots private law or Scots criminal law as it applies to reserved matters: para (b).
+Here too the boundary between what is reserved and what is not reserved is to be determined by applying a purpose test.
+The key word here is consistently.
+If the purpose is to make the relevant rule of Scots criminal law apply consistently to reserved matters and otherwise, it will pass the test.
+The provision will not then fall to be treated as relating to a reserved matter, and thus outside the legislative competence, because it is caught by section 29(2)(b).
+The question whether the provision is in breach of any of the restrictions in Schedule 4 must also be addressed in this case.
+The paragraphs in that Schedule that need to be considered are paras 2 and 3, which so far as relevant provide as follows: 2 (1) An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, the law on reserved matters. (2) In this paragraph, the law on reserved matters means (a) any enactment the subject matter of which is a reserved matter and which is comprised in an Act of Parliament or subordinate legislation under an Act of Parliament, and (b) any rule of law which is not contained in an enactment and the subject matter of which is a reserved matter, and in this sub paragraph Act of Parliament does not include this Act. (3) Sub paragraph (1) applies in relation to a rule of Scots private law or Scots criminal law (whether or not contained in an enactment) only to the extent to that the rule in question is special to a reserved matter 3 (1) Paragraph 2 does not apply to modifications which (a) are incidental to, or consequential on, provision made (whether by virtue of the Act in question or another enactment) which does not relate to reserved matters, and (b) do not have a greater effect on reserved matters than is necessary to give effect to the purpose of the provision. (2) In determining for the purposes of sub paragraph (1)(b) what is necessary to give effect to the purpose of a provision, any power to make laws other than the power of the Parliament is to be disregarded.
+There is obviously some duplication between section 29 and the provisions of this Schedule.
+At first sight, paragraph 2(1) declares what the reader already knows, having studied section 29(4).
+But, in contrast to section 29(4) which deals with the question whether a provision relates to a reserved matter, para 2(1) refers to the law on reserved matters.
+The meaning of this expression is set out in para 2(2)(a).
+The starting point is that the law on reserved matters as a whole is protected from modification by the Scottish Parliament.
+This appears to withdraw the protection that is given by section 29(4) to modifications of a rule of Scots private law or Scots criminal law as it applies to reserved matters whose purpose was to make the law apply consistently to reserved matters and otherwise.
+But paragraph 2(1) is itself qualified by the opening words of paragraph 2(3).
+The words is special to a reserved matter are the key words in this subparagraph.
+The contrast which they suggest is between a rule of Scots criminal law which is special to a reserved matter on the one hand and one which is general in its application on the other because it extends to both reserved matters and matters which have not been reserved.
+There is a strong family likeness between the two tests, as Lord Walker says: see para [54].
+But a modification which survives the test in section 29(4) will have to pass the tests in Schedule 4: section 29(2)(c).
+If it passes the test in paragraph 2(3), paragraph 2(1) will not apply.
+It will have no need of the protection that is given by paragraph 3 to modifications that fall within the scope of that paragraph.
+This analysis shows that the questions which lie at the heart of this case are: (1) whether the purpose of section 45 was to make a modification to Scots criminal law as defined in section 126(5); (2) if so, whether its purpose was to make the law apply consistently to reserved matters and otherwise; and (3) if it passes those tests, whether the rule that it sought to modify was special to a reserved matter within the meaning of paragraph 2(3) of Schedule 4.
+Section 45 of the 2007 Act
+Section 45 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007 is one of a group of sections dealing with sentencing powers which appear in Part 3 of the Act under the heading Penalties.
+Two sections require to be noticed in addition to section 45.
+First there is section 43, which deals with common law offences.
+It amends section 5 of the Criminal Procedure (Scotland) Act 1995, which deals with the sheriffs summary jurisdiction and powers, in two respects: in section 5(2)(d), the power to impose imprisonment is raised from any period not exceeding three months to twelve; and section 5(3) is repealed.
+Secondly, there is section 44, which increases the maximum sentence of imprisonment for a list of particular summary only statutory offences which had attracted a maximum sentence in excess of the previous common law maximum but were below the new maximum of twelve months for offences dealt with summarily.
+Section 45 is headed Other statutory offences.
+It is not necessary for the purposes of this case to quote it in full.
+The provisions that are relevant provide as follows: (1) The maximum term of imprisonment to which a person is liable on summary conviction of a relevant offence is, by virtue of this subsection, 12 months. (2) Accordingly, the specification of a maximum period of imprisonment in every relevant penalty provision is, in relation to any relevant offence to which it applies, to be read subject to subsection (1). (3) Without prejudice to subsections (1) and (2), the Scottish Ministers may by order amend the specification of a maximum term of imprisonment in a relevant penalty provision so as to specify, in relation to the relevant offence to which it applies, that the maximum term of imprisonment to which a person is liable on summary conviction is 12 months. (6) In this section, a relevant offence is an offence under a relevant enactment or instrument which is (a) triable either on indictment or summary complaint, and (b) punishable on summary conviction with a maximum term of imprisonment of less than 12 months. (7) In this section a relevant enactment is an Act passed before this Act It is common ground that the Road Traffic Offenders Act 1988 is a relevant enactment and that a contravention of section 103(1)(b) of the Road Traffic Act 1988 is a relevant offence for the purposes of this section.
+What was the purpose of section 45?
+Section 29(3) of the Scotland Act provides that, when consideration is being given to the purpose of the provision, regard is to be had to its effect in all the circumstances.
+One of the circumstances to which it is proper to have regard is the situation before the provision was enacted, which it was designed to address.
+Reports to and papers issued by the Scottish Ministers prior to the introduction of the Bill, explanatory notes to the Bill, the policy memorandum that accompanied it and statements by Ministers during the proceedings in the Scottish Parliament may all be taken into account in this assessment.
+The sentencing powers of the sheriff, sitting as a court of summary jurisdiction, are regulated by statute.
+Section 7(5) of the Criminal Procedure (Scotland) Act 1995 provides that a stipendiary magistrate shall have the summary criminal jurisdiction and powers of a sheriff.
+Prior to the commencement of the Criminal Proceedings etc (Reform) (Scotland) Act 2007, section 5(2) of the 1995 Act provided inter alia as follows: The sheriff shall, without prejudice to any other or wider powers conferred by statute, have power on convicting any person of a common law offence . (d) to impose imprisonment, for any period not exceeding three months.
+Section 5(3) of the 1995 Act provided that the maximum sentence for a second or subsequent offence involving violence or dishonesty was six months.
+The effect of these provisions was that the power of the sheriff or stipendiary magistrate to impose a sentence of imprisonment was limited to a maximum of three months in the case of common law crimes (except in the case of certain types of repeat offences) and, in the case of statutory offences, to the maximum laid down by the relevant statute.
+In the case of a contravention of section 103(1)(b) of the Road Traffic Act 1988, section 33 of and Part I of Schedule 2 to the Road Traffic Offenders Act 1988 provided that the maximum if the offence was prosecuted summarily in Scotland was six months.
+In November 2001 the Minister of Justice appointed a committee under Sheriff Principal John McInnes QC to review the provision of summary justice in Scotland, including the structures and procedures of the sheriff courts and the district courts as they related to summary business and the inter relation between the two levels of court, and to make recommendations for the more efficient and effective delivery of summary justice in Scotland.
+In the report which it presented to Ministers in January 2004 the Summary Justice Review Committee identified a need to relieve pressure on the higher courts.
+This implied a need to move cases from the High Court of Justiciary to the sheriff and jury court, and in turn a need to move cases from the sheriff and jury court to summary procedure.
+In para 7.87 of its report it recommended that, to equip summary judges with the disposals that would be necessary to deal with cases that would be heard summarily in the future, the criminal jurisdiction of judges sitting summarily should be increased to a maximum of twelve months detention or imprisonment or a 20,000 fine.
+Having consulted on this recommendation among other proposals, the Scottish Ministers decided to accept it.
+In March 2005 the Minister for Justice published Smarter Justice, Safer Communities Summary Justice Reform Next Steps (Scottish Executive, March 2005).
+In para 4.10 reference was made to the recommendations that the Committee had made which were designed to promote case handling at a more appropriate level: Recognising the pressures on the solemn system, the Committee recommended that the sentencing powers of a sheriff sitting without a jury should be raised to one year in custody or a fine of 20,000, enabling the transfer of the least serious solemn business to the summary courts In para 4.50 it was stated that it was proposed to implement the reports recommendations in relation to the custodial sentencing powers of sheriffs sitting summarily.
+The Criminal Proceedings etc (Reform) (Scotland) Bill was introduced into the Scottish Parliament in February 2006.
+In para 186 of the explanatory notes to the Bill it was said of section 35 (which became section 45 when the Bill was passed) that it brought the maximum summary prison sentences for certain statutory offences into line with the new maximum sentence for common law offences set out in what is now section 43 of the Act.
+In the Policy Memorandum which accompanied the Bill it was stated in para 6 that the Bill made provision in eight main policy areas, including: increases in the criminal sentencing powers of the summary courts, ensuring that those courts can deal with an appropriate range of cases in terms of both severity and caseload, and do so more quickly than is currently the case.
+In para 206 it was stated that the Executive believed that professional sheriffs should be able to deal with a wider range of cases under summary procedure than they were currently entitled to, including some that would attract a higher penalty.
+The theme that is apparent from these earlier documents was picked up by the Justice 1 Committee in its report on the general principles of the Bill: Justice 1, 10th Report 2006, Stage 1 Report on Criminal Proceedings etc (Reform) (Scotland) Bill, 5th July 2006.
+In para 293 of its report the Committee said that one of the principal drivers for the reforms proposed by the Bill was that justice should be dispensed at the appropriate level and that this meant, among other things, the granting of significantly increased sentencing powers to sheriffs sitting without a jury.
+In para 294 it said that it broadly accepted that there was merit in some cases being dealt with at lower levels of the judicial system than was the case at present.
+Introducing the stage 1 debate in the Parliament on 14 September 2006, the Minister for Justice said that the Bill made a number of changes to the detailed law of criminal procedure, that each of these changes played its part in speeding up the system as a whole, that the Bill would ensure that increased sentencing powers for sheriffs would ease the pressure on the higher courts and that the bill was to be regarded as part of the executives wider work to reform the summary justice system: Scottish Parliament Official Report, cols 27664 6.
+In my opinion this material shows conclusively that the purpose of section
+45 of the 2007 Act was to contribute to the reform of the summary justice system by reducing pressure on the higher courts.
+An increase in the sentencing powers of sheriffs when they were dealing with statutory offences was seen as a necessary of this process.
+The jurisdiction of the sheriff sitting summarily is defined by reference to the penalties that the sheriff can impose.
+These are pre eminently matters of Scots criminal law: see section 126(5).
+As it was to a rule of Scots criminal law that the provision was directed, I would hold that it does not relate to a reserved matter within the meaning of section 29(2)(b).
+Was it to make the law apply consistently?
+Section 45 of the 2007 Act forms part of a group of sections, all directed to a reform or modification of the sentencing powers of the sheriff sitting summarily.
+The leading provision is section 43, which increased the maximum sentence for common law offences from three (or, in the case of some repeat offences, six) months to twelve months.
+It is obvious however that to have left the matter there would have led to an imbalance in the system between how common law offences were to be dealt with on the one hand and how statutory offences were to be dealt with on the other.
+The reform that this would have achieved would have been incomplete and confusing.
+To achieve its object it had to be extended across the board to statutory offences as well.
+To draw a line between statutory offences relating to reserved matters and those relating to matters that were not reserved would have been even more confusing.
+When they were dealing with an offence created by a United Kingdom statute, prosecutors and sheriffs would have had to check in each case whether they were on the right side of the line.
+Statutory offences of all kind form a large part of the diet of the summary courts.
+To achieve a complete and worthwhile reform of the summary justice system a modification of the sentencing power across the whole range of statutory offences was required.
+In my opinion the purpose of the modification in section 45 must be taken to have been to make the law relating to the increased sentencing power of the sheriff sitting summarily apply consistently to reserved matters and otherwise.
+I would hold that section 45 is not to be treated as relating to a reserved matter under section 29(4).
+Is the rule special to a reserved matter?
+The question that must now be addressed is that set out in para 2(3) of Schedule 4: is the rule of Scots criminal law that the Act seeks to modify special to a reserved matter? To answer it, one must first identify the rule of Scots criminal law that is being modified.
+Then one must ask whether that rule is special to a reserved matter.
+Identifying the rule is a crucial step towards reaching the right answer to the question whether the modification that is proposed is within the competence of the Scottish Parliament or must be dealt with at Westminster.
+I agree with Lord Rodger that, unlike section 29(3) and (4), para 2 of the Schedule concentrates on the rule of law that is being modified by the enactment and makes no mention of the purpose of the modification: see para [122].
+But the purpose of the enactment may nevertheless be referred to in order to identify the rule of law that is being modified.
+I think that it is clear that any modification of the maximum punishment
+that can be imposed for the offences that the road traffic legislation has created must be held to be a matter for the United Kingdom Parliament at Westminster.
+The rule of Scots law as to the maximum term of imprisonment that can be imposed would fall to be treated as a rule that was special to a reserved matter.
+So would any other limits on the extent of the penalties or as to the scope of offences that the Road Traffic legislation lays down.
+The Calman Report, Serving Scotland Better: Scotland and the United Kingdom in the 21st Century, June 2009, considered in paras 5.167 181 certain aspects of road traffic regulation including drink driving limits and speed limits.
+As the authors of the report were right to recognise, under the current legislation any alteration to those limits that might be thought to be acceptable in Scotland would not be within the legislative competence of the Scottish Parliament.
+Some concern was expressed during the progress of the Bill as to whether this reform might lead to what was referred to as sentence drift a tendency on the part of sheriffs to impose higher sentences for these offences than they would previously have regarded as appropriate.
+But it is plain that this was not what the reform was intended to do, and there is no evidence that this has in fact happened.
+So I do not think that it would right to say that the purpose of section 45 was to achieve an overall increase in the sentences that sheriffs were imposing.
+Had that been the purpose, it would have gone some way to identifying the rule of law that was being modified.
+As it is, the rule cannot be identified by that route.
+Section 33 of and Part I of Schedule 2 to the Road Traffic Offenders Act 1988 provide that the maximum sentence of imprisonment for the offence under section 103(1)(b) of the Road Traffic Act 1988 if prosecuted summarily in Scotland is six months and that it is twelve months if prosecuted in Scotland on indictment.
+They contain, in effect, two rules of Scots criminal law.
+One is a rule as to the overall maximum sentence, which is twelve months imprisonment.
+That, plainly, is a rule which is special to the Road Traffic Acts and it is a reserved matter.
+The other is a rule about Scots criminal jurisdiction and procedure, which is not reserved.
+It is that rule which determines the procedure under which the maximum sentence can be imposed.
+The purpose of the modification that section 45 makes is to enable more statutory offences to be prosecuted summarily.
+The maximum sentence of imprisonment for the offence if prosecuted in Scotland remains twelve months.
+The modification relates to the procedure which determines whether the sheriff has jurisdiction to impose the maximum sentence.
+It extends the power that is given to him when he is sitting summarily.
+It seems to me therefore that the rule of Scots law that is being modified is the rule of procedure, not the rule of Scots law as to the maximum sentence for the offence.
+The rule of procedure is a rule that applies generally to the way cases are dealt with in the sheriff court.
+It is not special to the Road Traffic Offenders Act 1988.
+The purpose of para 2(3) of Schedule 4 to the 1998 Act, as I understand it, is to avoid the fragmentation of rules of Scots criminal law which are of general application into some parts which are within the Scottish Parliaments competence and some parts which are not.
+It is, of course, the case that the difference between the maximum sentence that could be imposed by a sheriff sitting summarily and that which could be imposed by him in solemn proceedings was prescribed in Schedule 2 to the Road Traffic Offenders Act 1988.
+But in doing so the Schedule was basing itself on a distinction between two forms of Scots criminal procedure which apply generally.
+I think that it was within the competence of the Scottish Parliament to extend its general reform of that procedure to the forms of procedure referred in this and other statutes that deal with reserved matters, otherwise fragmentation would occur.
+I am not confident that it helps to reason by way of examples.
+Each case must be taken on its own merits.
+In case of doubt, the words to the extent only suggest that a generous application of para 2(3) which favours competence is to be preferred, as opposed to one which applies it narrowly.
+And the key to the decision in this case lies in identifying the rule in question, which is achieved by examining the purpose of the provision which is under scrutiny.
+One could, of course, say that Schedule 2 contains two maximum sentences, one for summary proceedings and the other for proceedings on indictment, and that as both are reserved matters it was not open to the Scottish Parliament to alter either of them.
+But that, in my opinion, would be to carry the process of analysis too far.
+The word special indicates that, in cases such as this where the decision depends on the exercise of judgment, the purpose of the provision may be the best guide.
+So, in agreement with Lord Walker and Lord Brown and respectful disagreement with Lord Rodger and Lord Kerr, I would hold that section 45 was not directed to a rule which was special to a reserved matter within the meaning of para 2(3) of Schedule 4, that para 2(1) of the Schedule does not apply, that it survives scrutiny under section 29(2)(c) and there is no need to refer to para 3.
+Had it been necessary to refer to para 3, I would have held that section 45 of the 2007 Act was not saved by it.
+On this point I disagree with the appeal court in Logan v Harrower.
+A decision as to the procedure under which a sentence of more than six months could be imposed was not a modification of an incidental or consequential nature.
+It was an important change in the procedure which one would expect to see set out in the body of the enactment, not in a schedule of the kind that generally deals with matters that are merely incidental or consequential on provisions found elsewhere in the enactment.
+Section 104 of the Scotland Act enables Her Majesty in Council or a Minister of the Crown, with the consent of both Houses of the United Kingdom Parliament, to make such provision as is considered necessary or expedient in consequence of any provision made by or under any Act of the Scottish Parliament.
+As the explanatory notes to that section point out, the power to make provision consequential on legislation under paragraph 3 of Schedule 4 is very limited.
+Among other things, it does not enable the Scottish Parliament to legislate otherwise than as a matter of Scots law.
+It does not have power under that provision to make any consequential provisions that require to take effect elsewhere in the United Kingdom.
+Examples of the use that is made of the power under section 104 are to be found in the Adults with Incapacity (Scotland) Act 2000 (Consequential Modifications) (England, Wales and Northern Ireland) Order 2005 (SI 2005/1790) and the Police, Public Order and Criminal Justice (Scotland) Act 2006 (Consequential Provisions and Modifications) Order 2007 (SI 2007/1098).
+There are many others.
+Lord Rodger in para [81] has mentioned some of them.
+The use of section 104 is not confined to cross border matters.
+The power was used in connection with the reforms introduced by the 2007 Act to make the powers to impose sanctions under the Road Traffic Offenders Act 1988 available in the justice of the peace courts that were to be established under the 2007 Act, and to make the same powers available in the district courts during the phased introduction of the justice of the peace courts: see the Criminal Proceedings etc (Reform) (Scotland) Act 2007 (Powers of District and JP Courts) Order 2007 (SI 2007/3480).
+I agree with Lord Rodger that the scheme for adjusting the sheriffs summary criminal jurisdiction in relation to statutory offences could have been dealt with in this way, had this been thought to be necessary.
+But the modification that was required in their case was to a procedural route that was already available for dealing with these offences in the sheriff court.
+For the reasons that I have given I consider that the judgment that was made that the modification was within the legislative competence of the Scottish Parliament was correct, and that the use of the section 104 power was not necessary.
+Conclusion
+The result of this analysis is that section 45 of the 2007 Act survives scrutiny.
+Endorsing what the appeal court decided in Logan v Harrower but differing from it as to the reason why the section is not in breach of the restrictions in Schedule 4, I would hold that the provision is within the legislative competence of the Scottish Parliament.
+I would therefore dismiss these appeals.
+Bearing in mind that the appellant Martin who is on interim liberation has not yet served the sentence that the sheriff imposed on him, I would remit both cases to the appeal court for any further orders that may be required.
+Had I been in favour of allowing the appeals I would have made an order under section 102(2)(a) of the 1998 Act removing the retrospective effect of the decision that, so far as it purports to modify the penalty provision for a contravention of section 103(1)(b) of the Road Traffic Act 1988 in Part I of Schedule 2 to the Road Traffic Offenders Act 1988, section 45(2) of the Criminal Proceedings etc (Reform) (Scotland) Act 2007 is outside the competence of the Scottish Parliament.
+I would also have made an order under section 103(2)(b) suspending its effect for two months to allow the defect to be corrected as it seems to me that, in a case of this kind, these two orders go hand in hand.
+LORD WALKER
+The Scotland Act 1998 is on any view a monumental piece of constitutional legislation.
+Parliament established the Scottish Parliament and the Scottish Executive and undertook the challenging task of defining the legislative competence of the Scottish Parliament, while itself continuing as the sovereign legislature of the United Kingdom.
+That task is different from defining the division of legislative power between one federal legislature and several provincial or state legislatures (as in Canada or Australia, whose constitutional difficulties the Judicial Committee of the Privy Council used to wrestle with, often to the dissatisfaction of those dominions).
+The doctrine of pith and substance mentioned by Lord Hope in his judgment is probably more apt to apply to the construction of constitutions of that type.
+But both have to face the difficulty of defining (necessarily in fairly general and abstract terms) permitted or prohibited areas of legislative activity.
+The difficulties (viewed from the perspective of Northern Ireland) are discussed in Harry Calverts Constitutional Law in Northern Ireland, which, though written as long ago as 1968, still provides a very helpful commentary.
+It shows how different forms of words have come to be recognised as indicating a more or less proximate (or direct, or crucial) connection between a proposed enactment and an area of legislative activity.
+Calvert quotes (from an unidentified source), at pp 180 181, the argument of the Attorney General for Northern Ireland when Lynn v Gallagher [1937] AC 863 was before the House of Lords: The crux of this whole legislation lies in three words, the words in respect of used in section 4(1) of the Government of Ireland Act, 1920.
+These three words are the apt words to indicate the true subject matter of an enactment but they are not, we submit, the apt words to indicate merely the results of an enactment.
+They are possibly rather stronger than a word such as concerning, and than the phrase in relation to, but they certainly must have a different meaning, unless they may be construed contrary to the general use of language, from the word affecting.
+In the British North America Act the words used are in relation to and these words in respect of do not occur in it.
+We submit that these words in respect of are no weaker than the words there used.
+Calvert also quotes, at p 179, Higgins J in McArthur Ltd v Queensland (1920) 28 CLR 530, 565: We have to determine in each case what is the subject of the legislation what subject is the Act with respect to what it effects not what things or operations it may indirectly affect.
+These background matters must have been in the mind of those who undertook the drafting of the Scotland Act (and in particular the provisions directly relevant to these appeals).
+But in the Scotland Act Parliament has gone further, and has used more finely modulated language, in trying to explain its legislative purpose as regards reserved matters.
+The Court has to consider two groups of provisions, each of which has a particular nexus with reserved matters as defined in Schedule 5 of the Act.
+The first group of provisions consists of section 29(2)(b) as explained and qualified by subsections (3) and (4).
+The second group consists of section 29(2)(c) and Schedule 4, paras 2 and 3.
+All these provisions are set out in Lord Hopes judgment (paras 16 and 20) and I need not repeat them.
+But it is worth considering the manner in which reserved matters are defined in Schedule 5 (to which both groups of provisions are linked).
+Schedule 5, Part I, contains general reservations: the constitution, political parties, foreign affairs, public service, defence and treason.
+Part II then contains specific reservations under eleven heads (themselves elaborately subdivided and made subject to exceptions).
+Although termed specific, some of these are expressed in general terms.
+For instance, Head A1, Fiscal, economic and monetary policy, is as follows: Fiscal, economic and monetary policy, including the issue and circulation of money, taxes and excise duties, government borrowing and lending, control over United Kingdom public expenditure, the exchange rate and the Bank of England.
+Exception Local taxes to fund local authority expenditure (for example, council tax and non domestic rates).
+Many of the specific reservations in Part II are expressed as the subject matter of a particular statute (or part of a statute).
+For example Head E.1, Road Transport, includes The subject matter of . (d) the Road Traffic Act 1988 and the Road Traffic Offenders Act 1988 (subject to an exception for a few sections of the Road Traffic Act 1988).
+The use of the expression subject matter has been described (in an unsigned editorial in (1998) 19 Statute Law Review v) as an elegant drafting device but as having potential difficulties.
+So I come back to the first group of provisions, consisting of subsection (2)(b) of section 29 as explained and qualified by subsections (3) and (4).
+Its structure appears reasonably straightforward.
+Section 29(2)(b) prohibits legislation by the Scottish Parliament which relates to reserved matters.
+That is an expression which is familiar in this sort of context, indicating more than a loose or consequential connection, and the language of section 29(3), referring to a provisions purpose and effect, reinforces that.
+Section 29(4) adds to the reach of section 29(2) (as is clear from section 29(4)(a)) as regards modifications of Scots private law, or Scots criminal law, as it applies to reserved matters.
+Scots private law and Scots criminal law are widely defined in section 126 (4) and (5).
+Paragraph 29(4)s default position is restrictive: the modification is to be treated as relating to reserved matters unless the purpose of the provision is to make the law in question apply consistently to reserved matters and otherwise.
+Here the law in question must mean the relevant rule of Scots private law or Scots criminal law.
+The second group of provisions consists of section 29(2)(c) and Schedule 4, paras 2 and 3.
+Para 2(1) contains a general prohibition on modification (including amendment or repeal) of the law on reserved matters, that composite expression being defined in sub paragraph (2) by reference to the subject matter of an enactment or non statutory rule.
+So reading Schedule 4, para 2(1) and (2) together with Schedule 5, Part II, Head E1(d), we see that (if those provisions stood alone) an Act of the Scottish Parliament could not modify the Road Traffic Offenders Act 1988, because the subject matter of that Act is a reserved matter.
+As I understand it the Court is agreed (although not for identical reasons) that the legislation now in point, section 45 of the Criminal Proceedings etc (Reform)(Scotland) Act 2007, does not infringe section 29(2)(b) of the Scotland Act.
+The Court is however divided as to the effect of section 29(2)(c).
+Lord Rodger and Lord Kerr take the view that section 45 of the 2007 Act infringes section 29(2)(c) and Schedule 4, para 2 (being special to a reserved matter for the purposes of para 2(3) and not being saved by para 3, relating to incidental or consequential modifications).
+I agree that para 3 is not in point.
+The crucial provision is para 2(3).
+But it is important, in my view, to try and see it as part of a rational and coherent scheme defining the legislative competence of the Scottish Parliament.
+That is easier said than done, as the division within the Court indicates.
+When I first studied this second group of provisions I got the impression that they replicated, but in different language, the effect of what I have called the first group of provisions, and that it was hard to discern the legislative scheme or purpose underlying this.
+I still have difficulty with this.
+But I think the answer may be that section 29(2) is dealing comprehensively with the scope of any new legislation enacted by the Scottish Parliament, whereas Schedule 4 is (as its heading indicates) concerned with the protection of some existing legislation (or some non statutory rule of law) which has a reserved matter as its subject matter.
+However the statute book is already so heavily burdened that almost any new legislation is likely to modify existing legislation, and in Scotland a lot of new legislation will have the effect of modifying Scots private law or Scots criminal law.
+So in most cases both groups of provisions will be in point.
+Section 29(4) is concerned with a provision which makes a modification to Scots private law or Scots criminal law as it applies to reserved matters; in that case it is necessary to enquire whether its purpose is to make the law in question apply consistently to reserved matters and otherwise (that is, to non reserved matters).
+Schedule 4, para 2(3) is concerned with the modification of a rule of Scots private law or Scots criminal law to the extent that the rule in question is special to a reserved matter.
+There is to my mind an obvious degree of affinity between these two enactments, in that a provision intended to produce consistency in a rules application across the board (that is, to reserved matters and non reserved matters alike) is unlikely to apply to a rule which is special to a reserved matter.
+Special is to be contrasted with general and a measure intended to produce consistency across the board is general by its very nature.
+The two statutory tests are not identical (if Parliament had intended them to be identical it would no doubt have used the same words in each).
+Nevertheless they have a strong family likeness, and it would be rather surprising if a provision came within the legislative competence of the Scottish Parliament under section 29(4) but failed on the test in Schedule 4, paragraph 2(3).
+In applying each test it is necessary to identify the rule of Scots criminal law which is to be modified.
+It is to be found in sections 9 and 33 of, and Schedule 2 to, the Road Traffic Offenders Act 1988, so far as they apply to an either way offence under section 103(1)(b) of the Road Traffic Act 1988 committed in Scotland.
+These provisions are part of Scots criminal law, and they relate (almost by definition, having regard to the wording of Head E1(d)) to a reserved matter.
+It is also necessary to identify the purpose of the provision which makes the modification, that is section 45 of the 2007 Act.
+Its purpose was (as Lord Hope says in his judgment, para [31]) to contribute to the reform of the summary justice system by reducing pressure on the higher courts.
+An increase in the sentencing powers of sheriffs when they were dealing with statutory offences was seen as a necessary of this process.
+Similarly in Lord Rodgers view (para [105]) it was to introduce a novel, general, provision for determining the maximum term which a sheriff, sitting as a court of summary jurisdiction, could impose by way of imprisonment in respect of either way statutory offences which had previously attracted a maximum sentence of less than 12 months imprisonment.
+Lord Rodger gives a very similar explanation of the purpose of section 45 in para [113] of his judgment.
+In my opinion this statutory purpose includes achieving consistency in the sheriffs sentencing powers, on summary conviction, as between reserved and non reserved matters.
+Lord Rodger accepts this in para [116] of his judgment, but reaches a different conclusion on the similar point (not, I accept, exactly the same point) arising under Schedule 4, paragraph 2(3).
+I would accept that on my interpretation both section 29(4) and Schedule 4, para 2(3) may produce some difficult borderline cases, and some results which might appear anomalous.
+Perhaps they would do so on any interpretation, since in the Scotland Act Parliament was attempting to define legislative competence across the whole broad expanse of what are now regarded as the concerns of government.
+But (with great respect to the contrary views of Lord Rodger and Lord Kerr) I do not see this as a difficult borderline case.
+The relevant rule of Scots criminal law to be modified is not that driving while disqualified is a criminal offence, nor that it is a criminal offence punishable by imprisonment, nor that the maximum term of imprisonment is 12 months.
+All that has been enacted by the Westminster Parliament, and is left untouched.
+The rule to be modified is whether (and if so to what degree) the option of summary trial before the sheriff should reduce the maximum sentence that can be passed.
+That is to my mind a general matter relating to the Scottish system of criminal justice, and is not something special to the reserved matter of road transport.
+For these reasons, and for the fuller reasons in the judgment of Lord Hope, while respecting the closely argued contrary views of the minority, I agree with Lord Hope and Lord Brown that the appeals should be dismissed and the cases remitted to the Appeal Court for any further orders that may be required.
+LORD BROWN
+Section 33 of and Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988 (the RTOA), as originally enacted, provided that the offence of driving while disqualified (the offence) under section 103(1)(b) of the Road Traffic Act 1988 (the RTA) could be prosecuted in Scotland either summarily or on indictment; if summarily, the maximum punishment was six months imprisonment (and/or a fine); if on indictment, twelve months (and/or a fine).
+The RTOA and the RTA are reserved matters.
+By section 45 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007 (the 2007 Act) the Scottish Parliament purported to increase from six months to twelve months the maximum sentence that could be imposed for the offence by the sheriff sitting summarily. (Although immaterial to this appeal, it may be noted that in England and Wales the offence was, and remains, triable summarily only and subject to a maximum sentence of six months imprisonment.)
+The sole issue for determination on this devolution appeal is whether section 45 of the 2007 Act was within the Scottish Parliaments legislative competence within the meaning of section 29 of the Scotland Act 1998 (the 1998 Act).
+Section 29 has already been set out in full by other members of the Court and I need not repeat it.
+So too the relevant paragraphs of Schedule 4 to the 1998 Act (referred to in section 29(2)(c)).
+Before coming to the single point on which the Court is divided it is worth noting the following basic matters.
+First, that section 45 of the 2007 Act, the enactment impugned, did not increase the maximum penalty available for the offence in Scotland: that remained at twelve months imprisonment; what changed was that the sheriff could impose this maximum sentence no less when sitting as a court of summary jurisdiction than as a court of solemn jurisdiction.
+Secondly, that the essential purpose of section 45 (indeed, of sections 43 to 49 of the 2007 Act as a whole) was not to increase the penalties imposed by the Scottish courts but rather, by enlarging the sheriffs summary sentencing powers, to reallocate business within the court system to have more cases tried summarily instead of by a jury, summary trials generally being simpler, faster and cheaper than jury trials.
+Thirdly, that had the 2007 Act, directed as it was to reallocating court business in this way and to standardising the sheriffs summary sentencing powers for the future, not included within its provisions modification of the RTOA and the RTA in the way described, it would have created a striking contrast between the sheriffs summary powers when dealing with reserved matters and those available to him in other cases.
+Of course, as Lord Rodger points out, any such anomaly or inconsistency could if necessary be cured by resort to section 104 of the 1998 Act.
+But was that the only lawful means of achieving the desired consistency in this case? That is the question.
+I understand all of us to agree that section 45 does not fall foul of section 29(2)(b) of the 1998 Act.
+It does not relate to a reserved matter having regard to section 29(3) and is not to be deemed to relate to reserved matters by virtue of section 29(4).
+On this latter point, in common with Lord Hope, I regard section 45 as making modifications of Scots criminal law as it applies to reserved matters but as doing so for the purpose of making Scots criminal law (as to the allocation of court business) apply consistently.
+What critically divides the Court is the question raised under section 29(2)(c): as to whether section 45 is in breach of the restrictions in Schedule 4.
+I do not pretend to find paragraphs 2 and 3 of Schedule 4 entirely easy to follow and naturally I recognise the force of Lord Rodgers reasoning.
+For my part, however, I remain unpersuaded that section 45 modifies the law on reserved matters within the meaning of paragraph 2(1), given that (by virtue of paragraph 2(3)) paragraph 2(1) applies in relation to a rule of Scots criminal law only to the extent that the rule is special to a reserved matter (which I do not regard the unamended 6 months limits of the sheriffs summary jurisdiction to be).
+Even, however, were I persuaded that section 45 is to be regarded as modifying the law on reserved matters within the meaning of paragraph 2, I would conclude here that paragraph 2 is then disapplied by paragraph 3 since such modification is to be seen merely as incidental to a provision being made (for reallocation of court business and the standardisation of the sheriffs summary sentencing powers) in relation to unreserved matters and has no greater effect on reserved matters than is necessary to give effect to such purpose.
+Given that the Scottish Parliament is plainly intended to regulate the Scottish legal system I am disinclined to find a construction of Schedule 4 which would require the Scottish Parliament, when modifying that system, to invoke Westminsters help to do no more than dot the is and cross the ts of the necessary consequences.
+I too, therefore, would dismiss these appeals.
+LORD RODGER
+Does an enactment of the Scottish Parliament relate to reserved matters? Does it modify a rule of Scots criminal law that is special to a reserved matter? These are the key questions in the present appeals.
+The answers depend on the interpretation of section 29(2)(b) and (c) of the Scotland Act 1998 (the 1998 Act), along with paras 2 and 3 of Part I of Schedule 4 to the Act.
+Viewed in isolation, para 2, in particular, can appear to use impenetrable language to erect an arbitrary restriction on the Parliaments powers.
+Matters become clearer, however, when the provisions are seen in their setting in life.
+A useful starting point is the situation before 1999.
+Policy responsibility before devolution
+Until devolution took effect, leaving aside the fluctuating position of Northern Ireland, the central government of the United Kingdom was carried on by a single executive and a single Parliament.
+The executive was responsible for, and could determine, all areas of policy for the entire United Kingdom.
+Similarly, Parliament could legislate to give effect to the chosen policy in all parts of the United Kingdom.
+In practice, Parliament did not always insist on the law being uniform
+throughout the United Kingdom.
+To take only the most obvious example, Parliament did not intervene to impose uniformity on the private or criminal laws of England and Scotland.
+Instead, when legislation was to apply in both jurisdictions, where necessary, it included provisions that were tailored to fit the underlying law of both systems.
+So, for instance, the Rehabilitation of Offenders Act 1974 had to take account of differences in the two systems of criminal procedure.
+Sometimes, even if Parliament was legislating for England and Wales only, for example, the legislation could not be effective unless some provisions were made to extend to Scotland and vice versa.
+To take another obvious example, aspects of the legislation on detained patients in the Mental Health Act 1983 and the Mental Health (Scotland) Act 1984 had a cross border dimension and would have been unworkable if various provisions of the English Act had not extended to Scotland and various provisions of the Scottish Act had not extended to England.
+When the legislation was being prepared, officials and, if necessary, ministers in the various departments, including the Scottish Office, would discuss the proposals and try to iron out any difficulties.
+Even where there was no particular cross border dimension, legislation proposed by one department might have an impact on matters for which another department was responsible.
+Proposed legislation on, say, education might have an impact on employment; legislation on care in the community might raise law and order questions; legislation on transport might affect the environment; legislation on planning might affect trade and industry.
+And so on.
+More particularly, to be effective, legislation on a matter for which one department had responsibility might require that a piece of legislation falling within another departments sphere of responsibility should be amended.
+So, when a policy was being worked up and incorporated into a Bill, while one department would take the lead, very frequently officials and ministers from a number of departments would be involved.
+Suppose, for instance, the Home Office and the Scottish Office had proposed legislation to adjust the jurisdiction of the courts by increasing the sentencing powers of summary courts in both England and Wales and in Scotland.
+Suppose also that, in order to be effective, the reforming legislation would have had to modify the penalty provisions for offences in various Acts, such as the Road Traffic Offenders Act 1988 (the RTOA).
+In that event, officials of the lead departments would have consulted officials and ministers from all the departments, including the Department of Transport, having responsibility for the Acts which it was proposed should be modified.
+Sometimes the impact of the proposed legislation on a different area would be relatively insignificant perhaps involving little more than updating statutory references or bringing the language of existing legislation into conformity with the language of the proposed legislation.
+In such cases the main task of the other departments might well be to help the lead department and the Bill team by identifying provisions that would require to be modified in this way.
+But sometimes the impact would be more significant and would trench on issues of policy.
+Then there could well be differences of opinion among the departments concerned as to the best way forward.
+If officials could not resolve them, the disputed issues could be taken for decision to the appropriate cabinet committee and ultimately, if necessary, to the full cabinet or to the Prime Minister.
+The result would be a Bill which made all the necessary amendments, whatever the subject matter of the legislation being amended and irrespective of the department which had responsibility for that subject.
+Policy responsibility after devolution
+In the 1998 Act and the corresponding Acts for Wales and Northern Ireland, Parliament devolved legislative and executive authority in varying degrees.
+The powers of the Scottish Parliament are to be found in sections 28 and 29 of the 1998 Act.
+Section 28(1) of the 1998 Act provides that, subject to section 29, the Scottish Parliament may make laws.
+In terms of section 29(1), an Act of the Scottish Parliament is not law so far as any of its provisions is outside the legislative competence of the Parliament.
+Under section 29(2) a provision is outside that competence in various circumstances in particular, if, (b), it relates to reserved matters or, (c), it is in breach of the restrictions in Schedule 4.
+Leaving aside certain matters where powers are shared (section 56), it is immediately obvious that the overall scheme was to devolve power to the Scottish Executive and Scottish Parliament, but to except certain reserved matters, which are identified in Schedule 5 to the 1998 Act.
+All other matters are devolved matters although that term is not used since the Act concentrates on identifying the matters lying outside the competence of the Scottish Parliament and Scottish Executive.
+So far as these reserved matters are concerned, policy responsibility in respect of Scotland remains with the United Kingdom government and the United Kingdom Parliament retains the sole responsibility for legislating on them.
+The purpose of a provision and its validity
+It is convenient at this stage to notice that, under section 29(3) of the 1998 Act, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter and so is outside the competence of the Parliament under section 29(2)(b) is to be determined by reference to the purpose of the provision.
+Sometimes the clearest indication of the purpose of a provision will be found in a report which gave rise to the legislation or in a report of one of the committees of the Parliament.
+But very often the purpose of a provision will be clear from its context in the Act in question.
+For example, the subject matter of the Carriage of Goods by Sea Act 1992 is a reserved matter: para 1 and Section E3 of Part II of Schedule 5 to the 1998 Act.
+Obviously, therefore, if the Scottish Parliament purported to pass a Carriage of Goods by Sea (Scotland) Act with the sole purpose of repealing the 1992 Act in Scots law, its purpose would relate to a reserved matter and so its provisions would be outside the competence of the Parliament by virtue of section 29(2)(b).
+In practice, such a clear example would be unlikely to get past the legal advisers to the Scottish Parliament.
+In real life the problem is likely to arise in more complex situations.
+But assume, for example, that the purpose of an Act is to increase the sentencing powers of the lower courts in Scotland so as to allow them to deal with more serious cases.
+The purpose of the Act plainly relates to a devolved, rather than a reserved, matter.
+So its provisions will not be outside the competence of the Scottish Parliament by reason of section 29(2)(b).
+Does it follow that all of its provisions are automatically within the competence of the Scottish Parliament? By no means.
+For example, any provision which was incompatible with rights under the European Convention on Human Rights or with Community law would be outside competence by reason of section 29(2)(d) even if that provision was designed to help achieve the purpose of increasing the sentencing powers of the lower courts in Scotland.
+Similarly, any provision which was in breach of the restrictions in Schedule 4 to the 1998 Act would be outside competence again, even though the provision was designed to help achieve the purpose of increasing the sentencing powers of the lower courts in Scotland.
+Quite simply, therefore, even if the purpose of an Act is within the competence of the Scottish Parliament in terms of section 29(2)(b) of the 1998 Act, the Parliament cannot achieve that purpose by enacting provisions which are beyond its competence for one of the reasons listed in the other paragraphs of that subsection.
+As Lord Atkin put it in Gallagher v Lynn [1937] AC 863, 870, an Act may have a perfectly lawful object but may seek to achieve that object by invalid methods.
+In other words, the fact that a provision may have a lawful (devolved) purpose does not validate the provision if, for some other reason, it is outside the competence of the Parliament.
+So, in particular, the mere fact that the purpose of a provision is to increase the sentencing powers of the sheriff, sitting as a court of summary jurisdiction, will not validate it if the provision is outside the competence of the Parliament because it purports to modify a rule of Scots criminal law that is special to a reserved matter: section 29(2)(c) of, and para 2 of Part I of Schedule 4 to, the 1998 Act.
+Section 104 orders
+The fact that the powers of the Scottish Parliament are subject to these limitations means that there is now a stark contrast between the position in England and Scotland.
+For England, one executive and one Parliament continue to have the necessary powers to determine policy in all subject areas and to put it into effect by legislation.
+For Scotland, however, the necessary powers are divided between two executives and two legislatures.
+Even though the legislative arrangements for Scotland have changed in this way, the nature of the problems to be tackled by legislation has not changed.
+So, for example, some measures, like mental health legislation, which are devolved matters, still have a cross border dimension.
+Similarly, proposed legislation in one field, which happens now to be devolved, may require substantial amendment to legislation in another field, which happens now to be reserved.
+In these situations the Scottish Parliament will not have all the powers that are needed to make a fully effective reform.
+So its legislation can take the matter only so far.
+If it is to be fully effective, the legislation passed by the Scottish Parliament will require to be topped up by legislation of the United Kingdom Parliament dealing with any aspects which are beyond its competence.
+The need to provide for such situations was foreseen by those who drafted the 1998 Act.
+Section 104, which is designed to be used when they arise, is therefore a key element of the scheme for devolution.
+It contains a tailor made mechanism for using the powers of the United Kingdom Parliament to supplement legislation of the Scottish Parliament, without the need for full scale legislation by Parliament: (1) Subordinate legislation may make such provision as the person making the legislation considers necessary or expedient in consequence of any provision made by or under any Act of the Scottish Parliament or made by legislation mentioned in subsection (2). (2) The legislation is subordinate legislation under an Act of Parliament made by a member of the Scottish Executive, a Scottish public authority with mixed functions or no reserved functions, or any other person (not being a Minister of the Crown) if the function of making the legislation is exercisable within devolved competence.
+Of course, the Scottish Parliament and Scottish Executive cannot compel a Minister of the Crown to exercise the power under section 104.
+The intention underlying section 104 and indeed the whole scheme of devolution is, however, that the redistribution of powers should not impair but improve the government of the United Kingdom as a whole.
+It proceeds on the basis that both administrations can be expected to co operate appropriately.
+In particular, it presupposes that the United Kingdom ministers and Parliament will not be indifferent to the effectiveness of legislation passed by the Scottish Parliament.
+Not surprisingly, therefore, since devolution, ministers have made more than 40 orders under section 104.
+Some of the section 104 orders have concerned matters with a cross border aspect.
+When legislating for England and Wales, Parliament can, of course, still include any provisions which require to extend to Scotland in order to make the legislation effective though, doubtless, only after discussion with the Scottish Executive and their officials.
+But, as already noted, it is outside the competence of the Scottish Parliament to make any provision that would form part of the law of England and Wales: section 29(1) and (2)(a) of the 1998 Act.
+So the Scottish Parliament cannot make any changes to English law which may be needed in order to make its legislation on the devolved matter effective.
+Section 104 comes to the rescue.
+For instance, following the enactment of the Mental Health (Care and Treatment) (Scotland) Act 2003 by the Scottish Parliament, a Scotland Office minister used his power under section 104 of the 1998 Act to make the Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005 (No 2078; S 9), amending the law of, inter alia, England and Wales in order to facilitate the removal of detained patients from Scotland to England or Wales.
+But section 104 may also be needed in cases where proposed changes in the law on one subject require changes in the law on another subject.
+Given the large measure of devolution in matters such as justice, education and health, many of the subjects that are likely to be affected by legislation of the Scottish Parliament will fall within the sphere of responsibility of the Scottish Executive.
+If the proposed amendments to existing legislation are uncontroversial, then officials can deal with them.
+If there are disputes on significant matters of policy between, say, the education and criminal justice directorates, it will be for the Scottish Ministers and their officials to thrash them out and incorporate the agreed policy into legislation for the consideration of the Parliament.
+Again, whatever the principal subject matter of an Act may be, it can be expected to include the necessary amendments to all the relevant legislation on other devolved matters.
+After, as before, devolution, however, legislation on a subject which is now a reserved matter is liable to have an impact on a subject which is now devolved.
+For example, legislation on asylum seekers (a reserved matter) might have an impact on the legislation relating to accommodation for homeless persons (a devolved matter).
+Given the continuing power of Parliament to legislate for Scotland (section 28(7)), there would be no difficulty in incorporating all the necessary changes into the legislation on asylum seekers presumably, after the Home Office had discussed the proposals with the Scottish Executive, just as, formerly, the Home Office would have discussed them with the Scottish Office.
+The converse situation is where the Scottish Executive and Parliament wish to legislate on a matter which has implications for what is now a reserved matter.
+If, in the days before devolution, effective legislation could often only be prepared and introduced once policy issues in a number of discrete areas had been hammered out, the position must be the same after devolution.
+Likewise, if different departments were the guardians of policy on different matters before devolution, the same must apply after devolution the difference being that the Scottish Ministers and their directorates are now responsible for policy on devolved matters, the United Kingdom government and its departments for policy on the other (reserved) matters.
+Under section 54 of the 1998 Act, the competence of Scottish ministers is, of course, modelled on the competence of the Scottish Parliament.
+Suppose, for instance, that the Scottish Executive wanted to introduce legislation changing the system of accommodation for homeless persons in Scotland, but the reform would involve modifying provisions in a (reserved) Act on asylum seekers.
+If similar legislation had been proposed by the Scottish Office before devolution, the Scottish Office and the Home Office would have discussed the relevant policy issues.
+Eventually, the government as a whole would have reached a view on them and this view would have been reflected in the resulting legislation if any.
+Obviously, after devolution, exactly the same policy issues would present themselves.
+By devolving power over Scottish housing policy to the Scottish Executive and the Scottish Parliament, Parliament cannot have intended to remove from the United Kingdom government the power to take all the necessary decisions on asylum matters.
+So, in principle, the position after devolution must remain the same as before.
+If the Home Office and the United Kingdom Parliament were content with
+the proposed changes to the legislation on asylum seekers, there would be no difficulty: they could be made by order under section 104 of the 1998 Act.
+One example of such an order dealing with a reserved matter is the Housing (Scotland) Act 2006 (Consequential Provisions) Order 2008 (No 1889), article 6 of which amends the list of disqualifying offices in Part 3 of Schedule 1 to the House of Commons Disqualification Act 1975.
+Another example is more immediately relevant to the Criminal Proceedings etc (Reform) (Scotland) Act 2007 (the 2007 Act) which gives rise to these appeals.
+The Criminal Proceedings etc (Reform) (Scotland) Act 2007 (Powers of District and JP Courts) Order 2007 (No 3480; S 7) repeals or amends provisions of the RTOA.
+I return to this order briefly at para 151 below.
+On the other hand, if agreement could not be reached and proposed Scottish housing legislation would involve changes to legislation on asylum seekers which the United Kingdom government regarded as unacceptable, it would have to be either dropped or modified.
+This would not be to single out Scottish housing legislation exactly the same would apply to any similar proposal from the ministry with responsibility for housing in England.
+The only difference is that, for England, the dispute would have to be settled by ministers and departments within the United Kingdom government, whereas, for Scotland, it would have to be settled between a minister and department in Westminster and a minister and directorate in Edinburgh or, ultimately, between the United Kingdom government and the Scottish Executive.
+If, therefore, the Scottish Parliament persisted in legislating on the matter, despite the United Kingdom governments opposition, one would expect to find that the relevant provisions affecting asylum seekers would be outside its competence and so not law.
+By no means all encroachments by the Scottish Parliament into the territory of reserved matters are going to be dramatic or unacceptable.
+As already explained, legislation on a devolved matter is quite likely to entail some change in a reserved matter.
+Section 29(2)(c) recognises this reality.
+It proceeds on the basis that, even when the legislation of the Scottish Parliament does not relate to a reserved matter and so must relate to a devolved matter the legislative package, as a whole, may require to have some impact on the law on reserved matters, if it is to be effective.
+Section 29(2)(c) and Schedule 4 are designed to show how far, in this respect, the Scottish Parliament can go by itself.
+Consistently with the general structure of the Act, these provisions prescribe what modifications of the law on reserved matters lie outside the competence of the Scottish Parliament since they would truly be a matter for the consideration of the United Kingdom government and Parliament.
+If a proposed reform includes aspects which fall outside the competence of the Scottish Parliament in this way, that does not mean that the reform cannot go ahead: if the United Kingdom government and Parliament are content, these aspects can be addressed by an appropriate order under section 104.
+Incidental or consequential modifications
+I shall have to look at paras 2 and 3 of Part I of Schedule 4 to the 1998 Act in more detail in due course, but it is convenient to notice one aspect at this stage.
+As in pre devolution days, a piece of legislation on what is now a devolved matter may require essentially minor and technical modifications to the law on what are now reserved matters.
+Obviously, the Scottish Parliament should be able to make these modifications for itself.
+And para 3(1) of Part I of Schedule 4 makes it clear that it can provided that the modifications do not go further than is necessary.
+Referring back to the restriction imposed by para 2, para 3(1) provides: Paragraph 2 does not apply to modifications which (a) are incidental to, or consequential on, provision made (whether by virtue of the Act in question or another enactment) which does not relate to reserved matters, and (b) do not have a greater effect on reserved matters than is necessary to give effect to the purpose of the provision.
+The paragraph refers to modifications which are incidental to, or consequential on, provision made . which does not relate to reserved matters.
+The adjectives suggest the kinds of relatively minor modifications which are often to be found in schedules, rather than cluttering up the body of a traditional United Kingdom statute.
+The wording of a form to be used in making an application or carrying out a transaction is an example of the kind of incidental matter which is usually consigned to a schedule.
+As mentioned already at para 72 above, typical consequential amendments are concerned to modernise the language of an existing provision or to update legislative references.
+Amendments of this kind are also usually found in a schedule to an Act.
+Precisely because they raise no separate issue of principle, amendments of these kinds can be safely stowed away in a schedule, which is unlikely to be debated in any detail, if at all.
+If the legislature approves the main provisions, then it must equally approve these technical and mechanical changes which are needed to give effect to the main provisions.
+Similarly, it is easy to see that a modification of that kind to the law on a reserved matter, following on from legislation on a devolved matter, would be unlikely to raise any issue of principle to which the relevant United Kingdom minister or Parliament would object.
+So the Scottish Parliament can deal with it.
+That is what para 3(1) provides.
+In the unlikely event that a problem arose, the Secretary of State could make an order under section 35(1)(b) of the 1998 Act prohibiting the Presiding Officer from submitting the Bill for Royal Assent.
+With that rather lengthy introduction, I can now turn to examine the particular problem which gives rise to these appeals.
+The problem in these appeals
+Put briefly, section 45 of the 2007 Act purports to provide inter alia that a person convicted on summary complaint of a contravention of section 103(1)(b) of the Road Traffic Act 1988 (the RTA) is liable to a maximum term of imprisonment of 12 months rather than of 6 months, as originally provided in section 33 of, and Part I of Schedule 2 to, the RTOA.
+The effect of para 1 and Section E1 of Part II of Schedule 5 to the 1998 Act is that the RTOA is a reserved matter.
+So the enactment that comprises section 33 of, and Part I of Schedule 2 to, that Act is the law on a reserved matter.
+The appellants maintain that, to the extent that it purported to modify the maximum term of imprisonment on summary conviction laid down by the RTOA, section 45 was special to this reserved matter and so outside the competence of the Scottish Parliament by reason of section 29(2)(c) of, and para 2 of Part I of Schedule 4 to, the 1998 Act.
+It is therefore not law.
+It follows, they say, that the maximum term of imprisonment on summary conviction of a contravention of section 103(1)(b) of the RTA remains 6 months.
+If so, the terms of imprisonment, of over 6 months, imposed on the appellants for their respective contraventions of section 103(1)(b) of the RTA, were incompetent and the bills of suspension must be passed and the sentences quashed.
+The same point came before the criminal appeal court (Lord Nimmo Smith, Lord Eassie and Lord Wheatley) in Logan v Harrower 2008 SLT 1049.
+The court held that section 45 of the 2007 Act was within the competence of the Parliament.
+In the present cases the appeal court simply followed that decision and, without issuing any written judgment, refused to pass the bills of suspension.
+Summary jurisdiction before the 2007 Act
+Before looking in detail at the provisions of the 1998 Act, it is necessary to examine the position on summary jurisdiction before section 45 of the 2007 Act was brought into force on 10 December 2007.
+Following the enactment of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act), the only provision dealing with the summary jurisdiction and powers of the sheriff to impose a sentence of imprisonment was section 5 of that Act.
+By section 5(1) the sheriff, sitting as a court of summary jurisdiction, was to continue to have all the jurisdiction and powers exercisable by him at the commencement of the Act.
+Section 5(2) then provided that, without prejudice to any other or wider powers conferred by statute, on convicting any person of a common law offence, the sheriff was to have power, (d), to impose imprisonment, for any term not exceeding 3 months.
+By subsection (3), in the case of a second or subsequent conviction of an offence inferring dishonest appropriation of property (or attempt) or of an offence inferring personal violence, the sheriff was to have power to impose a term of imprisonment not exceeding 6 months.
+Since this was the only general provision dealing with the extent of the sheriffs summary powers of imprisonment, under the 1995 Act there was no general provision of any kind in Scottish criminal procedure which prescribed the maximum term of imprisonment which a sheriff, sitting as a court of summary jurisdiction, could impose where someone was convicted of a statutory offence.
+The limit depended on what the legislature had provided for the particular offence.
+So, if you wanted, for example, to know the maximum sentence of imprisonment available on a conviction, on summary complaint, under the Knives Act 1997 you would look at sections 1(5)(a) and 2(2)(a) of that Act.
+Similarly, for a summary conviction of a contravention of section 103(1)(b) of the RTA, you would look in Part I of Schedule 2 to the RTOA.
+Often you would find that the maximum penalty on summary conviction was 3 or 6 months.
+But, even as long ago as 1871, section 7 of the Prevention of Crime Act permitted the sheriff to impose 12 months imprisonment on summary conviction of an offence against the Act.
+And, if you looked at section 25 of, and Schedule 4 to, the Misuse of Drugs Act 1971 today, you would see that the maximum sentence on summary conviction of various offences is 12 months imprisonment.
+In 2004 the Summary Justice Review Committee chaired by Sheriff Principal McInnes QC recommended that, in order to relieve pressure on the courts of solemn jurisdiction, the criminal jurisdiction of judges sitting summarily should be increased: they should be able to impose a maximum sentence of 12 months imprisonment or detention and a maximum fine of 20,000.
+The first group of sections in Part 3 of the 2007 Act (sections 43 to 49) was designed to give effect to a slightly modified version of the Committees recommendation.
+Sections 43 to 45 dealt with the recommendation on imprisonment for the sheriff court.
+Section 46 dealt with the justice of the peace court, while sections 47 and 48 were designed to increase the maximum available fine to 10,000, rather than 20,000, as contemplated by the Committee.
+Section 49 dealt with compensation orders.
+The intention behind the relevant provisions of the 2007 Act therefore was that sheriffs sitting as a court of summary jurisdiction should be able to deal with more serious contraventions of the common law and statute law not that they should impose higher sentences for the same conduct.
+The anticipated benefits of the reform were thought to outweigh the admitted risk that the effect of increasing the sentences which the summary courts could impose would be an undesirable upward drift in the level of sentences.
+The appeal court has the necessary powers to check any such tendency in an appropriate case.
+The reform as carried out by the 2007 Act
+So far as imprisonment is concerned, the reform was effected by three separate provisions.
+The first, section 43, dealt with the power of imprisonment for common law offences.
+Most common law offences, such as assault, are triable either on summary complaint or on indictment.
+For these cases the reform was effected simply by substituting 12 months for 3 months in section 5(2)(d) of the 1995 Act.
+So now the maximum penalty for all common law offences is 12 months.
+Section 5(3), being no longer needed, was repealed.
+No common law offence falls within the area of reserved matters and so no issue as to legislative competence arises.
+The second provision was in section 44, which deals with certain specified offences that can be tried only on summary complaint.
+Again, the maximum term of imprisonment is increased to 12 months.
+The reform was effected by amending the penalty provisions in the individual statutes creating the offences.
+Since none of the offences falls within the area of reserved matters, again no issue as to legislative competence arises.
+Section 45 completed the scheme by dealing with statutory offences which are triable either on indictment or on summary complaint (either way offences) and which are punishable on summary conviction with a maximum term of imprisonment of less than 12 months (subsection (6)).
+Section 45(1) and (2) provide: (1) The maximum term of imprisonment to which a person is liable on summary conviction of a relevant offence is, by virtue of this subsection, 12 months. (2) Accordingly, the specification of a maximum period of imprisonment in every relevant penalty provision is, in relation to any relevant offence to which it applies, to be read subject to subsection (1).
+By section 45(2) the specification of a maximum period of imprisonment in any relevant penalty provision in any Act passed before the 2007 Act is to be read subject to section 45(1).
+In short, section 45 was intended to introduce a novel, general, provision for determining the maximum term which a sheriff, sitting as a court of summary jurisdiction, could impose by way of imprisonment in respect of either way statutory offences which had previously attracted a maximum sentence of less than 12 months imprisonment.
+In all such cases the sheriff is now to be able to impose a maximum sentence of 12 months imprisonment.
+In order to achieve its purpose, section 45 had to do two things.
+First, it had to make provision for the maximum term of imprisonment to which a person is liable on summary conviction of a relevant offence to be 12 months.
+That is what subsection (1) does.
+But, by itself, that provision would not have worked or, at the very least, would have left the position unclear.
+By the very terms of subsection (6)(b), section 45 applies only to offences where the statutory maximum term of imprisonment on summary complaint has already been fixed at less than 12 months.
+In other words, if it is to work, section 45 must also, secondly, increase the previous maximum term of imprisonment for the offences in question when tried on summary complaint.
+So the new rule in section 45(1) has to be made to prevail over, and to supersede, any penalty provision providing for a lower maximum term of imprisonment on summary conviction of any either way offence in any relevant enactment.
+That is what subsection (2) is designed to do.
+The present case shows subsection (2) in action.
+Section 33 of the RTOA provides: (1) Where a person is convicted of an offence against a provision of the Traffic Acts specified in column 1 of Part I of Schedule 2 to this Act or regulations made under any such provision, the maximum punishment by way of fine or imprisonment which may be imposed on him is that shown in column 4 against the offence and (where appropriate) the circumstances or the mode of trial there specified. (2) Any reference in column 4 of that Part to a period of years or months is to be construed as a reference to a term of imprisonment of that duration. (6) (5) (b) Summarily, in Scotland. (c) On indictment, in Scotland. (7) (4) Punishment Disqualification Endorsement Penalty points The table below sets out the entry relating to contraventions of section 103(1)(b) of the RTA in Part I of Schedule 2 to the RTOA: (3) (2) (1) Provision General Mode of creating nature of prosecution offence offence Offences under the Road Traffic Act 1988 RTA Driving (a) Summarily, (a) 6 months Discretionary. Obligatory. 6 in England and or level 5 on section while 103(1)(b) disqualified. Wales. the standard scale or both. (b) 6 months or the statutory maximum or both. (c) 12 months or a fine or both.
+Taking section 33 and the table together leaving the 2007 Act on one side on a summary conviction of a contravention of section 103(1)(b) of the RTA in Scotland, the maximum punishment by way of imprisonment which may be imposed on the offender is 6 months.
+A contravention of section 103(1)(b) of the RTA is a relevant offence in terms of section 45(6) of the 2007 Act.
+Similarly, section 33 of, and Part I of Schedule 2 to, the RTOA constitute a relevant penalty provision in terms of section 45(7) of the 2007 Act.
+So, by virtue of section 45(2), the specification of a maximum period of imprisonment of 6 months on summary conviction in column 4 of Part I of Schedule 2 is to be read subject to section 45(1) of the 2007 Act.
+In other words, the relevant entry in column 4 of the Schedule is to be read subject to the requirement that the maximum term of imprisonment on summary conviction of any relevant offence (including a contravention of section 103(1)(b) of the RTA) is to be 12 months.
+Section 45(3) of the 2007 Act gives the Scottish Ministers power by order actually to amend the specification of a maximum term of imprisonment in a relevant penalty provision.
+But the Court was told that the Ministers had not exercised that power in respect of Part I of Schedule 2 to the RTOA.
+An order amending the figure in column 4 of the Schedule from 6 to 12 would make the position clearer for anyone consulting it.
+But it would not change the substance.
+If section 45 was within the competence of the Scottish Parliament in this regard, section 45(1) prevails over the Schedule and provides that the maximum term of imprisonment for someone convicted on summary complaint of a contravention of section 103(1)(b) of the RTA is 12 months.
+Therefore, even if section 45 does not technically amend the figure in column 4 of the Schedule, it certainly purports to supersede, and thereby modify, the law comprising section 33 of the RTOA and the relevant entry in the Schedule.
+Similarly, it purports to supersede and modify all the other comparable penalty provisions which prescribe the maximum term of imprisonment that can be imposed, on summary conviction, for either way offences in statutes dealing with reserved matters.
+In short, section 45 purports to modify, inter alia, the maximum term of imprisonment to which someone is liable on summary conviction of a contravention of section 103(1)(b) of the RTA by increasing it from 6 months to 12 months.
+The issue in the appeals is whether, in so far as it purports to make this modification of the provisions of the RTOA, section 45 of the 2007 Act is outside the competence of the Scottish Parliament in any of the ways specified in section 29(2) of the 1998 Act.
+In fact, the parties are agreed that the only relevant limits are those in section 29(2)(b) and (c).
+Therefore, the Court has to decide whether section 45 of the 2007 Act falls foul of the limits in section 29(2)(b) and (c) and para 2 of Part I of Schedule 4.
+It is convenient to start with section 29(2)(b).
+Is section 45 beyond the competence of the Scottish Parliament because it relates to a reserved matter?
+In para 75 above, I have given a hypothetical example of an Act of the Scottish Parliament whose purpose would obviously relate to a reserved matter.
+The Act would therefore be outside its competence.
+Sometimes, of course, the purpose of a provision may be obscure.
+And, even when it is not obscure, people may describe the purpose in slightly different ways.
+But, having regard to its background and its context, I would identify the purpose of section 45 of the 2007 Act as being to adjust the jurisdiction of the Scottish courts by making 12 months the maximum term of imprisonment to which a person is liable on summary conviction of any either way statutory offence.
+For the sake of brevity, I shall refer to this purpose as being to increase the sheriffs summary sentencing powers.
+The jurisdiction and sentencing powers of the Scottish courts are not reserved matters.
+So the purpose of the section can on no view be said to relate to reserved matters.
+This is so, even though, in order to achieve its purpose, as part of the scheme for adjusting the jurisdiction of the Scottish courts, the section does undoubtedly purport to affect reserved matters, viz, by modifying the relevant penalty provision in the RTOA and, as the advocate depute accepted, by modifying penalty provisions for either way offences in any other statutes falling within the scope of the reserved matters in Schedule 5 to the 1998 Act.
+An example would be the maximum term of imprisonment on summary conviction of a corrupt practice under section 168(1)(b) of the Representation of the People Act 1983.
+Section 29(4) of the 1998 Act has also to be considered, however, since it contemplates the possibility that a provision whose purpose does not otherwise relate to a reserved matter may nevertheless be treated as relating to a reserved matter and so fall outside the competence of the Scottish Parliament.
+Subsection (4) applies to a provision which makes modifications of Scots private law, or Scots criminal law, as it applies to reserved matters.
+So the subsection would apply only if section 45 could be said to make a modification to Scots criminal law as it applies to reserved matters.
+The advocate depute argued that subsection (4) did not apply to a case like the present because it was restricted to cases where the provision in question applied only to reserved matters.
+Although no such qualification appears in the wording, he submitted that it was implicit since, if a provision applied to both reserved and devolved matters, its purpose would, inevitably, be to make the law apply consistently to reserved matters and otherwise.
+I accept that, where a provision applies to both reserved and devolved matters, its effect may be to make the law apply consistently to both.
+But its purpose may be different.
+It is possible, for example, to conceive of a situation where the purpose of a provision was actually to make a modification in relation to the criminal law applying to a particular reserved matter, but the provision was made to apply, incidentally, to devolved matters.
+Section 29(4) must be apt to catch a case of that kind.
+That said, I am very doubtful whether subsection (4) applies in this case.
+The words of the subsection obviously cover a case where some general provision of Scots private or criminal law applies to reserved matters.
+For example, it would cover modifications to the general law on limitation as it applied to actions relating to some reserved matter; or modifications to, say, the general law of criminal procedure as it applied to an accuseds trial, on summary complaint or on indictment, for some offence constituting a reserved matter.
+In such cases the provision modifies the law applying to the reserved matter; it does not modify the reserved matter itself.
+But Parliament provides that, subject to the unless clause, it is none the less to be treated as relating to the reserved matter.
+In the present case, by contrast, section 45 actually modifies the reserved matter or, rather, the law on the reserved matter viz, the penal provision in Part I of Schedule 2 to the RTOA.
+In my view section 29(4) is not designed to cover a provision of this kind.
+Therefore, as far as section 29(2)(b) is concerned, the position is regulated by section 29(3).
+Even if this were considered to be too narrow a construction of section 29(4) of the 1998 Act, section 45 of the 2007 Act would still not fall to be treated as relating to the reserved matter of the RTOA.
+A provision which makes modifications of Scots criminal law, as it applies to reserved matters, is to be treated as relating to reserved matters unless the purpose of the provision is to make the law apply consistently to reserved matters and otherwise.
+The phrase, the purpose of the provision, must refer to the same purpose in both subsection (3) and subsection (4).
+Part of the purpose of section 45 as described in para 112 above is indeed to make the law on the sheriffs power to imprison apply consistently to all either way statutory offences, whether constituting reserved matters in terms of Schedule 5 or not.
+So section 45 is not to be treated as relating to a reserved matter under section 29(4).
+In effect, the unless clause in section 29(4) allows the Scottish Parliament to make a general reform of Scottish private or criminal law, even though it modifies the law which applies to reserved matters.
+Again, this is not surprising since the United Kingdom Parliaments legislation on particular topics has always been framed and operated against the background of the general private and criminal law as it applies in the various jurisdictions from time to time.
+Equally, any reform of the general law has to take account of all the matters to which it actually applies.
+In agreement with all of your Lordships, I am therefore satisfied that section 45 of the 2007 Act is not outside the competence of the Scottish Parliament by reason of relating to a reserved matter.
+The question then arises: even though the purpose of section 45 is one that the Scottish Parliament can legitimately pursue, is the section nevertheless to some extent outside its competence because it is in breach of a restriction in para 2 of Part I of Schedule 4 to the 1998 Act? This question has to be addressed in stages.
+Does section 45 modify the law on a reserved matter?
+As already explained, under section 29(2)(c) of the 1998 Act, section 45 will be outside the competence of the Scottish Parliament so far as it breaches any of the restrictions in Schedule 4 to the 1998 Act.
+The relevant paragraphs for present purposes are paras 2 and 3.
+Paragraph 2 provides: (1) An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, the law on reserved matters. (2) In this paragraph, the law on reserved matters means (a) any enactment the subject matter of which is a reserved matter and which is comprised in an Act of Parliament or subordinate legislation under an Act of Parliament, and (b) any rule of law which is not contained in an enactment and the subject matter of which is a reserved matter, and in this sub paragraph Act of Parliament does not include this Act. (3) Sub paragraph (1) applies in relation to a rule of Scots private law or Scots criminal law (whether or not contained in an enactment) only to the extent that the rule in question is special to a reserved matter or the subject matter of the rule is (a) interest on sums due in respect of taxes or excise duties and refunds of such taxes or duties, or (b) the obligations, in relation to occupational or personal pension schemes, of the trustees or managers.
+At first sight, para 2(1) appears to impose a very drastic limit on the competence of the Scottish Parliament: an Act of the Parliament cannot modify (which includes amending or repealing section 126(1)) the law on reserved matters.
+If that were all that para 2 said, then it would prevent the Scottish Parliament from ever touching legislation on reserved matters even if the purpose of the provision related to a devolved matter.
+In effect, it would make section 29(2)(b) superfluous.
+But para 2(1) is actually qualified by para 2(3) and does not apply to modifications falling within the scope of para 3.
+Section 29(3) and (4) focus on the provision which is being enacted and on its purpose.
+By contrast, para 2 of Part I of Schedule 4 focuses on the rule of law that is being modified by the enactment and makes no mention whatever of the purpose of the modification.
+Paragraph 2(2)(a) defines the law on reserved matters as any enactment the subject matter of which is a reserved matter and which is comprised in an Act of Parliament or subordinate legislation under an Act of Parliament.
+As explained in para 95 above, the effect of para 1 and Section E1 of Part II of Schedule 5 to the 1998 Act is that the subject matter of the RTOA is a reserved matter.
+So the enactment comprising section 33 of, and the relevant entry in Part I of Schedule 2 to, that Act is part of the law on this reserved matter.
+This conclusion supports my earlier conclusion that these provisions are not provisions of Scots criminal law, as it applies to reserved matters in terms of section 29(4)(b).
+A provision cannot be both the law on a reserved matter and the law as it applies to the self same reserved matter.
+As I have already explained at para 110 above, section 45 of the 2007 Act undoubtedly purports to supersede and modify the enactment in section 33 of, and the relevant entry in Part I of Schedule 2 to, the RTOA.
+Therefore the power of the Scottish Parliament to enact section 45 for reserved statutes depends on whether the restriction in para 2(1) of Part I of Schedule 4 to the 1998 Act applies to the modification made by section 45.
+Does section 45 fall within para 3(1) of Part I of Schedule 4?
+In Logan v Harrower 2008 SLT 1049, 1054, at para 24, giving the opinion of the appeal court, Lord Nimmo Smith said this: While we were not fully addressed on the extent to which recourse may legitimately be had to extra statutory materials as an aid to the construction of a statutory provision such as section 45, in order to discover whether its purpose is such as to bring it within the proviso to section 29(4), it appears to us to be legitimate to have regard to the passages in the Policy Memorandum and Explanatory Notes, quoted above, which contain express statements about its purpose.
+From these it may be taken, as the advocate depute submitted, that the purpose and of the provision in section 45 of the 2007 Act is to increase generally the criminal sentencing powers of the sheriff, sitting as a court of summary jurisdiction, and that the provision, construed in this light, fulfils this purpose.
+We agree with the advocate depute that, in the present case, the purpose of the provision is to make Scots criminal law with regard to penalties, procedure and jurisdiction in the sheriff court apply consistently to both common law offences and statutory offences.
+As provided by paragraph 3 in Part I of Schedule 4 to the Scotland Act, the modifications made by section 45 of the 2007 Act to the reading of Part I of Schedule 2 to RTOA 1988 are merely incidental to, or consequential on, the more general aspect of the provision, which relates generally to the powers of the sheriff in relation to statutory offences, whatever their origin; and the modifications do not have a greater effect upon reserved matters than is necessary to give effect to the purpose of the provision in section 45.
+Lord Nimmo Smith had already explained, at para 22 of the courts opinion, that the argument before the court had centred on section 29(4) of the 1998 Act.
+And para 23 and the first three sentences of para 24 contain the reasoning by which the court concluded that section 45 of the 2007 Act was not to be treated as relating to reserved matters by reason of section 29(4).
+In the final sentence of para 24 the appeal court moved on to consider whether, nevertheless, section 45 was in breach of the restriction in para 2(1) of Part I of Schedule 4 to the 1998 Act.
+The court held that it was not on the view that the modifications made by section 45 of the 2007 Act to the reading of Part I of Schedule 2 to the RTOA are merely incidental to, or consequential on, the more general aspect of the provision, which relates generally to the powers of the sheriff in relation to statutory offences, whatever their origin.
+The appeal court had in mind para 3(1) of Part I of Schedule 4 which is set out in para 91 above.
+In other words, the court held that the modifications made by section 45 were incidental to, or consequential on, provision made which did not relate to reserved matters.
+So the prohibition in para 2(1) did not apply to those modifications.
+In my view the reasoning is unsound.
+I have already indicated, at paras 91 93 above, that para 3(1) appears to be intended to cover the kinds of minor modifications which are obviously necessary to give effect to a piece of devolved legislation, but which raise no separate issue of principle.
+Indeed the amendments to the RTOA replacing references to the district court with references to the justice of the peace court in para 7 of the Schedule to the 2007 Act are as good an example as any of minor consequential amendments to the law on reserved matters which para 3(1) of Part I of Schedule 4 to the 1998 Act permits the Scottish Parliament to make.
+In fact, para 444 of the Explanatory Notes says that Paragraph 7 is consequential upon the establishment of JP courts and inserts references to that court in place of the district court.
+But the modifications made by section 45 of the 2007 Act are of a completely different character and the draftsman clearly thought so, since they are effected not in the Schedule but by a separate section in the body of the Act.
+Section 45 is one of three sections (the others being 43 and 44) which combine to alter the jurisdiction of the sheriff sitting as a court of summary jurisdiction.
+None of the sections can be regarded as incidental to, or consequential on, another: they are all independent and deal with distinct aspects of the situation.
+Needless to say, the relevant paragraphs of the Explanatory Notes do not suggest that section 45 is to be regarded as merely consequential or incidental.
+Moreover, section 45 applies to any penalty provision in a relevant enactment which, by subsection (7), covers any Act passed before the 2007 Act.
+These are the words which bring in, for example, the RTOA.
+So the modifications of the law on reserved matters made by section 45 are effected by exactly the same words as the modifications of the law on devolved matters.
+Both sets of modifications play an equivalent part in the overall scheme the modifications to reserved penalty provisions are of no less importance than the modifications to devolved penalty provisions.
+Neither can be regarded as incidental to, or consequential on, the other.
+Despite this, in Logan v Harrower the appeal court considered that the modifications to the law in Part I of Schedule 2 to the RTOA were merely incidental to, or consequential on, the more general aspect of the provision, which relates generally to the powers of the sheriff in relation to statutory offences, whatever their origin.
+The reasoning is not easy to follow.
+It is enough, however, to observe that neither section 45 nor any other provision in the 2007 Act actually has any separate more general aspect relating generally to the powers of the sheriff in relation to statutory offences.
+So there is no separate devolved provision of that kind and, more particularly, no separate provision made which does not relate to reserved matters in relation to which the modifications to the RTOA made by section 45 could ever be regarded as incidental or consequential.
+For these reasons, like Lord Hope, I am satisfied that para 3(1) of Part I of Schedule 4 to the 1998 Act does not have the effect of preventing para 2 from applying to section 45 of the 2007 Act.
+It is therefore necessary to look at the qualification to para 2(1) which is to be found in para 2(3), and which the appeal court did not consider in Logan v Harrower because of their conclusion on para 3(1).
+Is the rule of law in the RTOA special to a reserved matter under para 2(3)?
+Unquestionably, section 33 of the RTOA and the relevant entry in Part I of Schedule 2 comprise a rule of Scots criminal law to the effect that, on a summary conviction of a contravention of section 103(1)(b) of the RTA, the maximum punishment by way of imprisonment which may be imposed on the offender is 6 months.
+That is the rule which section 45 purports to modify.
+Paragraph 2(1) of Part I of Schedule 4 prevents the Scottish Parliament from modifying a rule of Scots criminal law only to the extent that the rule is special to a reserved matter.
+So the Court has to decide whether this rule is special to a reserved matter.
+The advocate depute argued that the rule is not special to this reserved matter or indeed to any other reserved matter: the rule simply prescribes a maximum penalty of 6 months imprisonment for a conviction on summary complaint and that is a penalty that is found in many statutes, on both reserved and devolved matters.
+To be special, the penalty would have to be one that was not prescribed for an infringement of any statute dealing with a devolved matter.
+In theory, for instance, it would have applied if the unique penalty for an infringement of section 103(1)(b) of the RTA had been per impossibile say, whipping.
+Then, because that was a penalty which was found only within the sphere of reserved matters, the Scottish Parliament would be prevented from modifying it.
+It is fair, however, to say that the advocate depute was unable to point to any actual rule of Scottish criminal law or procedure to which, on his preferred construction, para 2(1) would apply.
+Although I was initially attracted by the advocate deputes argument, it cannot be right, since, on his construction, the limit makes no sense whatever.
+Why should the Scottish Parliaments power to modify an enactment whose subject matter is a reserved matter depend on whether there happens to be some comparable enactment dealing with a completely different devolved matter? More particularly, why should the Scottish Parliament be entitled to modify the maximum term of 6 months imprisonment on summary conviction of a contravention of section 103(1)(b) of the RTA in Part I of Schedule 2 to the RTOA simply because there happen to be a number of either way offences in the devolved area where the maximum term of imprisonment on summary conviction is also 6 months? Of course, the Parliament can alter the penalty provision for those offences because it is its business to make such amendments where appropriate.
+But that is, of itself, no reason why it should become the Scottish Parliaments business for whatever purpose to modify the penalty provision which Parliament has deliberately chosen to enact for a specific offence for which Parliament retains responsibility.
+The general point can be illustrated by reference to limitation periods.
+As Mr Johnston QC points out, in Prescription and Limitation (1999), Appendix II, p 371, the Prescription and Limitation (Scotland) Act 1973 (the 1973 Act) does not say that its provisions are not to apply where other enactments establish a prescriptive or limitation period for specific rights or remedies.
+Nevertheless, as he goes on to say, on general principles of statutory construction, it can be assumed that an enactment of a special nature takes precedence over an enactment of a general nature: the 1973 Act is therefore displaced by more specific provision in other enactments.
+Mr Johnston then gives a useful table listing a range of enactments which contain their own specific limitation periods.
+By contrast, there are many statutes which provide for civil liability but do not contain any separate, specific, provision on limitation of proceedings brought for their breach.
+For example, a breach of a duty under the Provision and Use of Work Equipment Regulations 1998 (No 2306) is actionable: section 42 of the Health and Safety Act 1974.
+But there is no special rule of law on the limitation of proceedings for such a breach: the general rule of law in the 1973 Act applies.
+Therefore, if the Scottish Parliament chose to alter that general rule in the 1973 Act, it could do so and the new period would apply to actions for breach of the Regulations.
+This is so, even though Part I of the Health and Safety Act is a reserved matter: para 1 and Section H2 of Part II of Schedule 5 to the 1998 Act.
+Many statutes do make special provision on limitation, however.
+For example, under section 568(5) of the Companies Act 2006, an action for loss suffered because of a contravention of the pre emption provision in a companys articles must be brought within 2 years.
+That is unquestionably the law on a reserved matter as defined in para 2(2) of Part I of Schedule 4 to the 1998 Act.
+It is surely unthinkable that, even as part of an exercise to tidy up the Scots law of limitation of actions, the Scottish Parliament would be able to alter that period, which is special in the sense that, instead of relying on the general law of limitation, Parliament has deliberately selected 2 years as being appropriate for proceedings of that particular kind.
+Leaving aside any other possible difficulties, if the Scottish Parliament could change the period, the result would be to introduce a difference between English and Scots law in an area where Parliament, legislating after devolution, must have considered that the same special rule should continue to apply in both jurisdictions.
+Equally surely, the power of the Scottish Parliament to alter the period in section 568(5) of the Companies Act could not be affected because, if you rooted around in the statute book, you could find that, under section 5 of the Limitations of Actions and Costs Act 1842, the limitation period for actions brought under local and personal Acts (which would, usually at least, concern devolved matters) happened also to be 2 years.
+Likewise, it would be irrational to conclude that, if the Scottish Parliament were to repeal or amend section 5 of the 1842 Act so that it no longer provided for a period of 2 years, this would somehow simultaneously remove a power which the Parliament had hitherto enjoyed to amend the limitation period under section 568(5) of the Companies Act 2006.
+Quite simply, the two enactments have nothing to do with one another.
+Conversely and reverting to penalties it would be absurd to hold that the Scottish Parliament could not modify a penalty provision so long as it was special to, in the sense of unique to, a reserved matter, but could give itself the power to do so by enacting the same penalty for a devolved matter.
+Besides being absurd, this would offend against the principle that the limits on the competence of the Scottish Parliament are fixed by the 1998 Act and cannot be altered except by new legislation by Parliament or by Order in Council under section 30(2).
+What, then, do the critical words mean? In my view, a statutory rule of law is special to a reserved matter if it has been specially, specifically, enacted to apply to the reserved matter in question as opposed to being a general rule of Scots private or criminal law which applies to, inter alia, a reserved matter.
+Only general rules whose subject matter is listed in sub paras (a) to (e) of para 2(3), as amended, are protected from modification.
+If interpreted in this way, para 2(3) means that para 2(1) prevents the Scottish Parliament from modifying any enactment which must be taken to reflect the conscious choice of Parliament to make special provision for the particular circumstances, rather than to rely on some general provision of Scottish private or criminal law.
+Whether or not to modify such an enactment involves questions of policy which must be left for the consideration of the United Kingdom government and Parliament which are responsible for the matter.
+On this interpretation, paras 2(1) and (3) place a comprehensible limit on what the Scottish Parliament can do.
+I return to the particular problem in these appeals.
+Suppose that, instead of increasing the maximum term of imprisonment available on summary conviction of a contravention of section 103(1)(b) of the RTA from 6 to 12 months, the Scottish Parliament had chosen to reduce it to 3 months perhaps as part of a general package of reductions in sentences designed to save money by cutting expenditure on criminal justice.
+The purpose of the legislation would plainly relate to a devolved matter.
+Nevertheless, the Scottish Parliament could not achieve that purpose by modifying the RTOA in that way because the maximum term of imprisonment on summary conviction of the offence had been specially chosen by Parliament.
+The modification would therefore be outside the competence of the Scottish Parliament by virtue of para 2 of Part I of Schedule 4.
+And it would rightly be outside competence because it would inevitably involve significant road traffic policy issues which, under the 1998 Act, it would be for the United Kingdom government (more particularly, the Secretary of State for Transport) and Parliament to evaluate.
+For instance, would it be acceptable if the average sentence for driving while disqualified fell because prosecutors were reluctant to mount the more complicated and time consuming sheriff and jury trials necessary to attract a prison sentence of more than 3 months? Would the potential cost cutting advantages of the policy outweigh this possible disadvantage? Mutatis mutandis, the Secretary of State for Transport and the United Kingdom government as a whole would have to consider these issues if the Ministry of Justice made an equivalent proposal for England and Wales.
+If they ultimately agreed, Parliament would be asked to legislate to amend the RTOA.
+In the case of Scotland, if the United Kingdom government and Parliament were content, the necessary changes could be made by a section 104 order.
+If a reduction in the maximum term of imprisonment on summary conviction would be outside the competence of the Scottish Parliament in this way, the same must apply to an increase.
+For these reasons I conclude that the rule of Scots criminal law prescribing the maximum term of imprisonment for a summary conviction of a contravention of section 103(1)(b) of the RTA, in Part I of Schedule 2 to the RTOA, is special to that reserved matter, in the sense that Parliament has chosen it specifically for that offence.
+So, by virtue of para 2(1) of Part I of Schedule 4 to the 1998 Act, the Scottish Parliament has no power to modify it.
+A majority of your Lordships have reached the opposite view.
+At para 34 of his judgment, Lord Hope accepts that, when considering para 2 of Part I of Schedule 4, the starting point is identifying the rule of Scots criminal law that is being modified.
+Then one must ask whether that rule is special to a reserved matter.
+Naturally, I agree.
+Lord Hope takes the view that the purpose of the enactment may be referred to in order to identify the rule of law that is being modified.
+I see no room for that approach in this case.
+Here, the purpose of the enactment is clear and undisputed: to increase the sheriffs summary sentencing powers.
+If, however, you want to know which rules of Scottish criminal law the enactment is modifying in order to achieve that purpose, you simply have to look at the perfectly clear terms of section 45 and apply them to the penal provisions in question.
+I agree with Lord Hope when he says, at paras 35 and 37, that the rule of Scots law as to the maximum term of imprisonment that can be imposed i e the maximum period of 12 months on indictment, set out in the relevant part of column 4 of the Schedule falls to be treated as a rule that is special to a reserved matter.
+I have explained my reasons for taking that view.
+These cannot, of course, be Lord Hopes reasons.
+But he gives no explanation for his view beyond the assertion that it plainly, is a rule which is special to the Road Traffic Acts and it is a reserved matter.
+In para 39 Lord Hope considers that it would be to carry the process of analysis too far to say that the Schedule contains two maximum sentences, one for summary proceedings and the other for proceedings on indictment.
+But that is precisely what Parliament does say in section 33(1) of the RTOA read together with the relevant entry in the Schedule (referring to the maximum punishment by way of imprisonment and giving different figures depending on the mode of trial).
+Lord Hope also thinks that it would be carrying the process of analysis too far to say that both of these maximum sentences are special.
+Apparently this is because such a decision depends on an exercise of judgment in which the purpose of the provision (here, section 45) may be the best guide.
+But, as the cross headings show, para 2 of Part I of Schedule 4 is designed to protect the law on reserved matters from modification.
+It is therefore necessary to identify which rules of Scots criminal law are to be regarded as special to a reserved matter in terms of para 2(3) and so protected from modification.
+Since, ex hypothesi, these rules cannot be modified, they cannot be identified by reference to the purpose of a provision which purports to modify them.
+In the end, therefore, all we know is that, for some unstated reason, the maximum sentence which can be imposed on conviction of a contravention of section 103(1)(b) of the RTA in a prosecution on indictment is a rule which is special to the Road Traffic Acts, but the maximum sentence which can be imposed for the same offence in a summary prosecution is not.
+In para 59 of his judgment Lord Walker identifies what the relevant rule of Scots criminal law to be modified is not: it is not that driving while disqualified is a criminal offence (agreed), nor that it is a criminal offence punishable by imprisonment (agreed), nor that the maximum term of imprisonment is 12 months (also agreed, since, again, this must be a reference to the maximum term of imprisonment in a prosecution on indictment).
+The inference seems to be that these rules might indeed be special to a reserved matter and beyond the reach of the Scottish Parliament.
+As Lord Walker says, however, all these rules have been left untouched.
+You then eagerly wait to hear about the rule that has not been left untouched: that the maximum term of imprisonment is 6 months in a summary prosecution.
+But you wait in vain.
+Instead, the rule to be modified turns out to be whether (and if so to what degree) the option of summary trial before the sheriff should reduce the maximum sentence that can be passed.
+With great respect, that does not really look much like a rule of Scots criminal law.
+But, whatever the description, it is actually the product of the two specific rules of Scots criminal law as to the maximum term of imprisonment for a contravention of section 103(1)(b) of the RTA in summary and indictment proceedings respectively.
+That product can itself be modified only by modifying either or both of these specific rules.
+By enacting section 45, the Scottish Parliament purported to modify the rule that the maximum term of imprisonment for this offence in summary proceedings is 6 months.
+The unavoidable question is whether that rule is special to a reserved matter in terms of para 2(3) of Part I of Schedule 4 to the 1998 Act.
+But that question is neither posed nor answered.
+Having bowed politely in the general direction of the argument, Lord Brown rests his conclusion on simple assertion.
+Until now, judges, lawyers and law students have had to try to work out what Parliament meant by a rule of Scots criminal law that is special to a reserved matter.
+That is, on any view, a difficult enough problem.
+Now, however, they must also try to work out what the Supreme Court means by these words.
+It is a new and intriguing mystery.
+Conclusion
+In my view, so far as it relates to the penalty provision in the RTOA relating to contraventions of section 103(1)(b) of the RTA, section 45 was outside the competence of the Scottish Parliament.
+There was, of course, nothing to prevent the Scottish Parliament from increasing the maximum term of imprisonment which a sheriff, sitting as a court of summary jurisdiction, could impose.
+That is what section 45(1) does and, by itself, the provision is unobjectionable since it merely deals with the jurisdiction of the sheriff.
+But any increase in jurisdiction brought about by section 45(1) would remain subject to all the penalty provisions in statutes which stipulate a lower maximum term of imprisonment on summary conviction.
+So subsection (2) was introduced in order to modify all those provisions.
+Modification of penal provisions in statutes falling within the devolved sphere causes no difficulty.
+But, for the reasons I have explained, modifying a specific penal provision in a statute within the reserved area is outside competence essentially, because it involves making a significant change to law which Parliament has decided is to be its own responsibility.
+Of course, it is true that the purpose of section 45 is to increase the sheriffs summary sentencing powers.
+That is why section 45 does not relate to reserved matters and so is not beyond the competence of the Scottish Parliament by virtue of section 29(2)(b).
+But a purpose of increasing the summary sentencing powers of sheriffs or other lower court judges is not a passport that entitles the Scottish Parliament to disregard the prohibitions in the other paragraphs of section 29(2) and to sweep aside any provision of the RTOA which stands in its way.
+The competent end does not justify the use of means which are beyond competence.
+If evidence to support that simple proposition were needed, it is to be found in the Criminal Proceedings etc (Reform) (Scotland) Act 2007 (Powers of District and JP Courts) Order 2007, which was made under section 104 of the 1998 Act shortly before the 2007 Act came into force.
+The order was not mentioned by counsel on either side.
+Its purpose was, first, to repeal the provisions of the RTOA which prevented the district court (and its successor, the justice of the peace court) from imposing the penalty of disqualification for traffic offences, and then to amend section 34 so as to include the district court (and, hence, the justice of the peace court) among the courts with the power to impose that penalty for such offences.
+Even though these changes were clearly part of the overall scheme in the 2007 Act, to allow the lower courts to hear more serious cases by increasing their sentencing powers, it was recognised that the section 104 order was needed to carry out this particular aspect of the scheme.
+By contrast, the minor consequential amendment to section 248C(1) of the 1995 Act, relating to the disqualification power for other offences, was made by section 80 of, and para 26 of the Schedule to, the 2007 Act.
+In order to achieve another part of the scheme to adjust the jurisdiction of the Scottish courts by increasing the sentencing powers of the lower courts, section 45 of the 2007 Act purports to modify, inter alia, the enactment relating to contraventions of section 103(1)(b) of the RTA in Part I of Schedule 2 to the (reserved) RTOA.
+As a result, the maximum term of imprisonment that can be imposed for that offence by a court of summary jurisdiction in Scotland is intended to be twice what can be imposed by the equivalent court in England.
+Of course, it is not essential that the two jurisdictions should march exactly in step on this matter as is plain from the availability of indictment proceedings with a maximum sentence of 12 months imprisonment in Scotland, but not in England.
+But that is a disparity which Parliament chose to introduce.
+Whether a further disparity between the jurisdictions should indeed be introduced is precisely the kind of issue like the issue as to whether the district court or justice of the peace court, rather than just the sheriff court, should have power to disqualify for road traffic offences which the 1998 Act intends that Parliament should decide.
+This need cause no difficulty for the Scottish Executives scheme to adjust the jurisdiction of the Scottish courts by increasing the sentencing powers of sheriffs in summary cases if the United Kingdom government and Parliament are content that the maximum available term of imprisonment for this offence on summary conviction should be increased in this way.
+Provided the draft is approved by both Houses of Parliament, the appropriate order can be made under section 104 of the 1998 Act: sections 114 and 115 and paras 2 and 3 of Schedule 7.
+This is indeed precisely the kind of situation for which section 104 was designed.
+Applying section 101 of the 1998 Act, I would therefore hold that the definition of relevant penalty provision in section 45(7) of the Criminal Proceedings etc (Reform) (Scotland) Act 2007 does not include a provision of a relevant enactment or instrument which is special to a reserved matter within the meaning of para 2(3) of Part I of Schedule 4 to the Scotland Act 1998.
+It follows that section 45 does not modify the maximum term of imprisonment of 6 months on summary conviction of a contravention of section 103(1)(b) of the Road Traffic Act 1988 in column 4 of Part I of Schedule 2 to the Road Traffic Offenders Act 1988.
+I would accordingly allow the appeals, pass the bills of suspension, quash the sentence imposed by the sheriff court in each case for the contravention of section 103(1)(b) of the Road Traffic Act 1988 and remit to the appeal court to proceed as accords.
+LORD KERR
+The legislative competence of the Scottish Parliament is self evidently a subject of fundamental importance.
+As the appeals in these cases amply demonstrate, however, it is impossible to devise a comprehensive charter which, for every conceivable situation, infallibly prescribes the limits of that legislatures enacting power.
+This, it seems to me, is the inevitable consequence of the transfer by the United Kingdom government of some or even many powers to a devolved administration while retaining or, as it is more usually put, reserving, certain other matters to Parliament in Westminster.
+Whether a particular Act of the Scottish Parliament falls within its legislative competence will, for the most part therefore, depend on a consideration of the particular provisions of the enactment in question.
+The quest will usually begin with section 29 of the Scotland Act 1998.
+It stipulates (in subsection (1)) that any provision of an Act of the Scottish Parliament is not law so far as it is outside the legislative competence of the Parliament.
+Subsection (2) (b) states that a provision is outside the competence of the Scottish Parliament if it relates to reserved matters.
+The issue as to whether a provision does so relate is to be determined in accordance with subsection (3) which, so far as is material, provides: the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (4), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.
+Subsection (3) has a number of component parts, each of which deserves careful consideration.
+The first is that which specifies that it is subject to subsection (4).
+This latter subsection (to which I shall turn presently) is a deeming provision designed to expand the category of cases in which a change in the law is to be considered to relate to reserved matters because it modifies Scots private or criminal law as it applies to reserved matters.
+The need to enlarge the group in this way appears to me to clearly indicate that the construction to be placed on the expression relates to reserved matters must be suitably restrained.
+If, in every instance where a provision of the Scottish Parliament touched on a reserved matter, it was to be considered to relate to a reserved matter, subsection (4) would not be needed.
+The phrase needs a more careful and restricted application, therefore.
+Guidance as to the extent of the restriction is provided by the next component part of section 29 (3).
+The resolution of the question whether a particular provision relates to a reserved matter is to be determined by reference to the purpose of the provision.
+One is immediately thereby drawn to an examination of the objective of the legislation and of the particular provision within it.
+Before dealing with the result of that examination, it is useful to note the next component part of subsection (3).
+It is to the effect that the determination (by reference to its purpose) whether an Act of the Scottish Parliament relates to a reserved matter is to be conducted having regard to (among other things) its effect in all the circumstances.
+It seems to me obvious that the way in which the subsection is structured signifies that the effect of the provision is subordinate to its purpose in the inquiry as to whether it relates to a reserved matter.
+Indeed, the assessment of the effect of the provision is directly linked to the search for its purpose.
+This is unsurprising.
+As Lord Brown pointed out in the course of argument, one will customarily expect that the purpose of a particular provision is to bring about a desired effect.
+The other things, apart from the effect of the provision, which are to be taken into account in ascertaining its purpose are not specified in subsection (3).
+Mr Brown on behalf of the appellant, Mr Miller, accepted (sensibly and correctly, in my view) that these would include statements by those responsible for the legislation which purported to identify the reasons for its enactment.
+The genesis of the legislation under challenge here is the report of the Committee appointed in November 2001 to review summary justice in Scotland under the chairmanship of Sheriff Principal John McInnes QC.
+The formal remit of the Committee was stated to be: To review the provision of summary justice in Scotland, including the structures and procedures of the sheriff courts and district courts as they relate to summary business and the inter relation between the two levels of court, and to make recommendations for the more efficient and effective delivery of summary justice in Scotland.
+In paragraph 9 of its summary of recommendations the Committee recorded its proposal that the criminal jurisdiction for judges in summary cases should be a maximum 12 months detention or imprisonment and a 20,000 fine.
+The reasons for this particular recommendation are discussed throughout the report.
+In paragraph 7.72 on page 78 at paragraph (iv) it is explained that the view of the majority of the Committee was that there was a need to relieve pressure on the higher courts.
+This required the lower courts to take on more serious cases.
+Consequently, some increase in sentencing powers for the judges in those courts was required.
+The Committee recognised that recommending an increase in the sentencing powers of the courts of summary jurisdiction could give rise to what is described in the report as sentence drift, that is a tendency to increase the normal sentencing range because of the availability of the increase in the statutory maxima.
+It made clear its express disavowal of any intention to bring about sentence drift in paragraph 7.89 of the report where the following appears: In proposing an increase in sentencing powers, we are clear that we do not intend any uplift of the going rate for all offences, but rather we wish to extend the range of offences that can appropriately be dealt with in the summary courts.
+The Ministerial response to the McInnes recommendations was contained in a report entitled, Smarter Justice, Safer Communities Summary Justice Reform published in March 2005.
+In paragraph 4.10 the Scottish Executive signalled its acceptance of the proposal that there be an increase in the sentencing powers of a sheriff sitting without a jury in summary proceedings, stating that this form of proceeding was generally simpler and faster than trials in a solemn court.
+The report also acknowledged the concern that there might be upward sentence drift but recorded the Committees finding that there was no evidence that this was linked to an increase of sentencing powers in summary proceedings (para 4.51).
+The Bill which was to give effect to the recommendations of the McInnes Committee (among other matters), the Criminal Proceedings etc. (Reform) (Scotland) Bill, was introduced to the Scottish Parliament on 27 February 2006.
+Clause 35, which became section 45 of the enacted legislation, dealt with certain statutory offences (including driving whilst disqualified) and provided for a new maximum term of imprisonment of twelve months to which a person summarily convicted of such an offence would be liable.
+The Bill was considered by the Justice 1 Committee of the Scottish Parliament on 19 April 2006.
+In answer to a question from a member of the Justice Committee concerning the possibility of an increase in the prison population because of the enlarged sentencing powers of the sheriff courts in summary proceedings, Noel Rehfisch of the Scottish Executive Justice Department said this, at Scottish Parliament Official Report, cols 2838 2839: it is clear that the intention of the changes is not to be more punitive in respect of any particular offence.
+For example, for any statutory offence that can be tried only summarily at present, the sentencing limit will not change.
+The increase to 12 months is about providing headroom in the summary system to deal with slightly more serious cases that, in the view of the McInnes Committee which ministers accepted could relevantly, competently and capably be dealt with in the sheriff summary court.
+On two occasions in recent years there have been increases in the maximum sentencing level in the sheriff solemn courts.
+The same sheriffs, albeit with a jury, are responsible for determining sentences in those cases.
+To date, there is no evidence that those increases have led to what might popularly be described as sentence drift.
+We are confident that the judiciary will continue to consider individual cases on their merits.
+The measures are about having the appropriate level of business in certain sectors of the system.
+These comments were reflected in the 10th report of the Justice 1 Committee published on 5 July 2006.
+At paragraph 135 of the report the following appears: In oral evidence Executive officials stated that these provisions are about seeking some form of business redistribution to ensure that every level of the system deals with the business that it ought to deal with and managing that as effectively as possible.
+Indeed, in the Policy Memorandum [containing the Executives comments on the provisions of the Bill], the Executive refers to its policy of creating a flexible court capacity to ensure that cases can be dealt with quickly and at the appropriate level. and at paragraph 136: The Executives expectation is that this redistribution of cases would represent a downward shift of around 500 to 550 cases per year from sheriff and jury to sheriff summary procedure.
+The Executive has also stated that the provisions in the Bill are not designed to be more punitive in relation to any particular offences.
+The Scottish Prison Service referred in oral evidence to its view that it does not expect the Bill to have a significant impact on the prison population.
+It appears to me from all this material that the purpose of section 45 of the 2007 Act is unmistakably clear.
+As the advocate depute submitted, it is to effect a reallocation of business within the court structure.
+The means by which this is achieved is an increase in the sentencing powers available to sheriffs sitting in their summary jurisdiction.
+The greater maximum penalty is not an end in itself nor is it intended that that the going rate for relevant offences should be increased.
+This is merely the mechanism by which the quite different purpose of providing for a more expeditious dispatch of business can be achieved.
+This conclusion is reinforced by the consideration that defendants charged with relevant offences are not exposed to a greater penalty in the summary proceedings than they formerly faced if prosecuted for the same offences on indictment.
+In this context, I should say that I consider that the analogy which the appellants sought to draw with the decision of the Divisional Court in Northern Ireland in the case of Reg (Hume) v Londonderry Justices [1972] N. I. 91 is misconceived.
+In that case the Parliament of Northern Ireland, in exercise of its powers under section 4 of the Government of Ireland Act 1920 to make laws for the peace, order and good government of Northern Ireland, had purported (by a regulation made in a statutory rule and order by the Minister of Home Affairs) to authorise certain members of Her Majestys forces to require an assembly of persons to disperse if a breach of the peace was apprehended.
+The Divisional Court held that the regulation was made in breach of section 4 (3) of the 1920 Act which forbade the making of laws by the Northern Ireland Parliament in respect of Her Majestys forces.
+It had been argued on behalf of the respondent that the pith and substance of the regulation was the peace, order and good government of Northern Ireland and that the conferring of powers on members of the armed forces was merely incidental.
+This argument was rejected, Lowry LCJ observing (at page 111) that both the object and the method of achieving it must be valid.
+Since the method in that case had been expressly forbidden, the regulation could not be rescued from its invalidity because it was for a permitted object.
+By contrast, in the present case the method (enlargement of the sentencing powers in sheriff summary proceedings) of achieving the object (the more efficient and expeditious prosecution of offences) is not expressly forbidden.
+For these reasons, and for the reasons more fully given by Lord Hope and Lord Rodger, I am therefore satisfied that section 45 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007 does not relate to reserved matters within the meaning to be ascribed to that condition in section 29 (2) (b) of the Scotland Act 1998.
+I turn to briefly consider section 29 (4).
+It provides: (4) A provision which (a) would otherwise not relate to reserved matters, but (b) makes modifications of Scots private law, or Scots criminal law, as it applies to reserved matters, is to be treated as relating to reserved matters unless the purpose of the provision is to make the law in question apply consistently to reserved matters and otherwise.
+As I have already observed, this is a deeming provision which expands the category of cases in which a change in the law is to be considered to relate to reserved matters, although not so relating for the purposes of section 29 (3).
+Modifications of Scots private or criminal law are to be treated as relating to reserved matters subject to two important qualifications.
+The first of these is that such modifications are confined to the law as it applies to reserved matters.
+The advocate depute argued that section 45 of the 2007 Act modified Scots criminal law generally and on that account could not be said to apply solely to reserved matters.
+It appears to me, however, that this first qualification is not designed to exclude from the ambit of section 29 (4) modifications that relate to both reserved and devolved matters.
+It was suggested in argument that the purpose of the provision was to prevent the Scottish legislature from targeting reserved matters.
+This may well be correct but that objective is likely to be severely curtailed if a measure of the Scottish Parliament applying to reserved and devolved measures which were unrelated to each other was exempt from the reach of section 29 (4) and it appears to me that this must be the logical conclusion of the advocate deputes argument.
+A final determination of this issue is not, in my opinion, strictly necessary, however, because it is quite clear that the impugned legislation comes squarely within the second qualification in section 29 (4).
+A provision, the purpose of which is to make the law apply consistently to reserved matters and otherwise, is not caught by the subsection.
+It is unquestionably clear that section 45 of the 2007 Act has that precise purpose and for that reason it does not come within section 29 (4).
+The final and, to my mind, most troubling issue arises from section 29 (2) (c) of the 1998 Act.
+It states that a provision is outside the competence of the Scottish Parliament if it is in breach of the restrictions in Schedule 4 to the Act.
+Paragraph 2 of that Schedule contains the following material provisions: (1) An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, the law on reserved matters. (2) In this paragraph, the law on reserved matters means (a) any enactment the subject matter of which is a reserved matter and which is comprised in an Act of Parliament or subordinate legislation under an Act of Parliament, and (b) any rule of law which is not contained in an enactment and the subject matter of which is a reserved matter, and in this sub paragraph Act of Parliament does not include this Act. (3) Sub paragraph (1) applies in relation to a rule of Scots private law or Scots criminal law (whether or not contained in an enactment) only to the extent that the rule in question is special to a reserved matter .
+Section 45 of the 2007 Act self evidently relates to a rule of Scottish criminal law.
+Is the rule special to a reserved matter? Lord Hope has concluded that the rule is not special to a reserved matter because it does not increase the penalty that can be imposed in respect of the offence but has merely changed the procedural route by which the enlarged penalty can be imposed.
+It is concerned with a rule of procedure that applies generally to prosecutions for offences in the sheriff court.
+On this analysis, section 45 is not to be regarded as directed to a rule which is special to a reserved matter.
+By contrast, Lord Rodger considers that a statutory rule is special to a reserved matter if it has been enacted in order to apply specifically to the rule in question.
+I have not found it easy to reach a view as to which of these competing and persuasively argued positions is to be preferred.
+It is clear that paragraph 2 (3) contemplates an ambit or scope of application for a particular rule beyond its possible impact on reserved matters.
+It is only on the extent to which the application of the rule is special to reserved matters that the denial of legislative competence is engaged.
+In this context, special to may be regarded as connoting having a specific effect on reserved matters.
+Where an act of the Scottish Parliament seeks to modify a rule of Scots law which has an effect on reserved matters that act will be outside the legislative competence of the Scottish Parliament.
+But where the rule of Scots law being modified is not special to reserved matters, Parliaments legislative power remains intact.
+Viewing the effect of the provision in this way, I have concluded that where an act of the Scottish Parliament modifies a statutory rule which has a specific effect on a reserved matter it comes within the prohibition contained in paragraph 2 (1) of Schedule 4 to the 1998 Act.
+I therefore agree with Lord Rodger that section 45 is caught by that paragraph.
+The question then arises whether the section can be saved by recourse to paragraph 3 of Schedule 4 to the 1998 Act which provides: (1) Paragraph 2 does not apply to modifications which are incidental to, or consequential on, provision made (whether by virtue of the Act in question or another enactment) which does not relate to reserved matters, and do not have greater effect on reserved matters than is necessary to give effect to the purpose of the provision.
+Both Lord Hope and Lord Rodger have concluded that a statutory provision that alters the sentencing power of the sheriff court sitting in its summary jurisdiction cannot be regarded as coming within this provision.
+Although I was initially attracted by the notion that the increase in sentencing powers was incidental to a provision being made for the reallocation of court business, I have come to the view that this cannot be right.
+The increase in sentencing powers is the provision concerned.
+It is not incidental to another permissible statutory rule.
+It cannot be saved by paragraph 3, therefore.
+In the result, I agree with Lord Rodger that this appeal should be allowed.
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+The Scottish Parliament was established by section 1 of the Scotland Act 1998.
+It was opened on 1 July 1999.
+Section 29(1) of the Act provides: An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.
+This provision lies at the heart of the scheme of devolution to which the Act gives effect.
+Section 29 has to be read together with Schedule 4 which protects certain enactments from modification, and then with section 30 and Schedule 5 which defines reserved matters.
+These are matters reserved to the UK Parliament, and which are therefore excluded from the legislative competence of the Scottish Parliament.
+The area of competence that is identified by this group of provisions forms the basis for a series of sections that are designed to ensure that the Scottish Parliament confines itself to the defined areas of competence: section 31 (scrutiny of Bills before introduction), section 32 (the responsibility of the Presiding Officer), section 33 (reference of Bills to the Judicial Committee now the UK Supreme Court for scrutiny), section 35 (the power of the Secretary of State to intervene in certain cases) and sections 98 to 103 and Schedule 6 (post enactment adjudication of issues about legislative competence by the courts).
+The White Paper, Scotlands Parliament, Cm 3658 (1997), para 4.3, contrasted this scheme of devolution with that which had been laid down by the Scotland Act 1978, which was repealed because less than 40 per cent of the persons entitled to vote in the referendum which was required by section 85 of that Act voted in favour of it.
+Under that Act legislative competence was to be transferred to the Scottish Assembly in specifically defined particular groups, further defined by reference to a long list of existing statutes.
+That scheme, which would have required frequent updating by the UK Parliament, was seen to be incompatible with the aim that the White Paper expressed of ensuring maximum clarity and stability.
+While the scheme in the 1998 Act may not strike one as a model of clarity, it does appear so far to have achieved the aim of stability.
+Of course, harmony between the governments at Westminster and Holyrood until the May 2007 elections to the Scottish Parliament contributed to this process, as did frequent use of legislative consent motions (also known as Sewel motions, named after Lord Sewel, Parliamentary Under Secretary of State for Scotland during the passage of the Scotland Act 1998) passed by the Scottish Parliament agreeing that the UK Parliament might pass legislation on a devolved issue extending to Scotland.
+But it is a remarkable fact that the myriad of devolution issues that have come before the courts for determination since May 1999 have been devoted almost exclusively to the exercise of functions in criminal cases by the Lord Advocate.
+Logan v Harrower [2008] HCJAC 61, 2008 SLT 1049 was the first case that brought the extent of the legislative competence of the Scottish Parliament under judicial scrutiny on grounds other than compliance with Convention rights.
+As in the case of the appeals that are now before this court, it arose of out of a prosecution for contraventions of section 103(1)(b) of the Road Traffic Act 1988.
+There was no appeal against the appeal courts determination to the Judicial Committee.
+The question whether an Act of the Scottish Parliament is within the legislative competence of the Parliament is a devolution issue: Schedule 6, para 1(a).
+So it is for the courts to decide whether an Act which is challenged is within or outside competence.
+But the judicial function in this regard has been carefully structured.
+It is not for the judges to say whether legislation on any particular issue is better made by the Scottish Parliament at Holyrood or by the UK Parliament at Westminster.
+How that issue is to be determined has already been addressed by the legislators.
+It must be decided according to particular rules that the Scotland Act 1998 has laid down.
+But those rules, just like any other rules, have to be interpreted.
+That is the courts function.
+It is for the court to say what the rules mean and how, in a case such as this, they must be applied in order to resolve the issue whether the measure in question was within competence.
+These proceedings
+Section 33 of and Part I of Schedule 2 to the Road Traffic Offenders Act 1988 provide that the offence of driving while disqualified under section 103(1)(b) of the Road Traffic Act 1988 may be prosecuted in Scotland either summarily or on indictment.
+As originally enacted, the maximum punishment for that offence if prosecuted summarily in Scotland was six months or the statutory maximum fine or both.
+If it was prosecuted on indictment in Scotland the maximum sentence was twelve months or a fine or both.
+By section 45 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007, the provisions of which I shall examine in more detail later, the Scottish Parliament increased to twelve months the maximum sentence that might be imposed for this offence under the 1998 Act by the sheriff sitting summarily.
+That section came into force on 10 December 2007: the Criminal Proceedings etc (Reform) (Scotland) Act 2007 (Commencement No 2 and Transitional Provisions and Savings) Order 2007 (SSI 2007/479).
+Sean Martin was charged on summary complaint at Oban with a co accused named Rodney Cuthill.
+The complaint contained fourteen charges, of which charges 1, 2, 8 and 9 were directed against Martin.
+In charges 1 and 8 it was alleged that he drove a motor vehicle on a road while disqualified, contrary to section 103(1)(b) of the Road Traffic Act 1988, and that he committed those offences while on bail.
+On 14 December 2007 he pled guilty to charges 1 and 8 and to the other two charges.
+On 17 December 2007 he was sentenced to 12 months imprisonment on charges 1 and 8, of which four months was attributed to the fact that he committed the offences while on bail.
+On 12 March 2008 he presented a Bill of Suspension to the High Court of Justiciary in which he sought suspension of the sentence of imprisonment on the ground that the relevant provisions of the Criminal Proceedings etc (Reform) (Scotland) Act 2007 were beyond the legislative competence of the Scottish Parliament.
+On 28 March 2008 he was granted interim liberation pending the determination of his Bill of Suspension.
+Ross Miller was charged on summary complaint at Stirling.
+The complaint contained three charges.
+In charge 1 it was alleged that he drove a motor vehicle on a road while disqualified, contrary to section 103(1)(b) of the Road Traffic Act 1988.
+On 24 April 2008 he pled guilty to charge 1 and to one of the other charges and was remanded in custody.
+On 14 May 2008 he was sentenced to seven months imprisonment on charge 1, back dated to 24 April 2008.
+On 20 June 2008 he presented a Bill of Suspension to the High Court of Justiciary in which he sought suspension of the sentence of imprisonment on the same grounds as Martin.
+He applied for interim liberation, but on 3 July 2008 he withdrew that application.
+Unlike Martin, he has now served his sentence.
+The two Bills of Suspension came before the appeal court for a hearing on 6 January 2009.
+Devolution minutes identifying the devolution issue in these proceedings had also been lodged.
+The court saw no reason for distinguishing these cases from its previous decision in Logan v Harrower, in which it held that the increase in the sentencing power of the sheriff sitting summarily by section 45 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007 was within the legislative competence of the Scottish Parliament.
+As nothing had been said to suggest that that decision was wrong, it refused to pass the Bills.
+It also refused the devolution minutes.
+On 30 January and 24 February 2009 respectively it granted the appellants leave to appeal to this court.
+As this narrative shows, the only reasoned decision on this issue by the appeal court is to be found in Logan v Harrower.
+In para 24 of that case, Lord Nimmo Smith, delivering the opinion of the court, said: We agree with the advocate depute that, in the present case, the purpose of the provision is to make Scots criminal law with regard to penalties, procedure and jurisdiction in the sheriff court apply consistently to both common law offences and statutory offences.
+As provided by para 3 in part I of Schedule 4 to the Scotland Act, the modifications made by section 45 of the 2007 Act to the reading of Part I of Schedule 2 to the Road Traffic Offenders Act 1988 are merely incidental to, or consequential on, the more general aspect of the provision, which relates generally to the powers of the sheriff in relation to statutory offences, whatever their origin; and the modifications do not have a greater effect upon reserved matters than is necessary to give effect to the purpose of the provision in section 45.
+The legislative competence rules
+The scheme of devolution of legislative power which the Scotland Act 1998 sets out recognises that it was not possible, if a workable system was to be created, for reserved and devolved areas to be divided into precisely defined, watertight compartments.
+Some degree of overlap was inevitable, for the reasons explained by Lord Rodger in his discussion of the division of responsibility on matters of policy; see paras [73] and [74].
+This is a familiar phenomenon in the case of federal systems such as those in Canada and Australia, where legislative competence is divided between the Dominion and the Provinces or the Commonwealth and the States.
+In Prafulla Kumar Mukherjee v Bank of Commerce Ltd, Khulna (1947) LR 74 Indian Appeals 23 the Judicial Committee rejected the argument that the principles which obtain in Canada and Australia had no application in India.
+Lord Porter gave this explanation at p 42: It is not possible to make so clean a cut between the powers of various legislatures: they are bound to overlap from time to time.
+The rule that was evolved by the Judicial Committee was to examine the statute that was impugned to ascertain its pith and substance, or its true nature and character, to determine whether it was legislation with respect to matters that were in the prohibited or permitted sphere.
+The phrase pith and substance was first used by Lord Watson in Union Colliery Co of British Columbia Ltd v Bryden [1899] AC 580, 587.
+The phrase true nature and character was first used in Russell v The Queen (1882) 7 App Cas 829, 839 840.
+The principles that these phrases embody are sometimes referred to, by a word that went out of fashion in mediaeval times, as the respection doctrine.
+In Prafulla Kumar Mukherjee v Bank of Commerce Ltd, Khulna having referred to the rule and found that it applied to Indian as well as Dominion legislation, Lord Porter went on to say this at p 43: No doubt experience of past difficulties has made the provisions of the Indian Act more exact in some particulars .
+But the overlapping of subject matter is not avoided by substituting three lists for two, or even by arranging for a hierarchy of jurisdictions.
+Subjects must still overlap, and where they do the question must be asked what in pith and substance is the effect of the enactment of which complaint is made, and in what list is its true nature and character to be found.
+If these questions could not be asked, much beneficent legislation would be stifled at birth, and many of the subjects entrusted to provincial legislation could never effectively be dealt with.
+The same point had already been made by Lord Atkin in Gallagher v Lynn [1937] AC 863, which was an appeal from Northern Ireland.
+Section 4 of the Government of Ireland Act 1920 provided that the Parliament of Northern Ireland had power to make laws for the peace, order and good government of Northern Ireland, but not to make laws in respect of, among other things, trade with any place out of Northern Ireland.
+He held that an Act regulating the supply of milk in Northern Ireland which imposed controls on every person who within Northern Ireland sold or exposed for sale milk, whether produced within or without the territory of Northern Ireland, was a law for the peace, order and good government of Northern Ireland in respect of precautions taken to secured the health of its inhabitants, not a law in respect of trade.
+At p 870, explaining what was meant by the pith and substance doctrine, he said: If, on the view of the statute as a whole, you find that the substance of the legislation is within the express powers, then it is not invalidated if incidentally it affects matters which are outside the authorized field.
+The legislation must not under the guise of dealing with one matter in fact encroach upon the forbidden field.
+Nor are you to look only at the object of the legislator.
+An Act may have a perfectly lawful object, eg to promote the health of the inhabitants, but may seek to achieve that object by invalid methods, eg a direct prohibition of any trade with a foreign country.
+The rule that was evolved and applied in these cases, among others, provides the background to the scheme that is now to be found in the Scotland Act.
+It was referred to at the committee stage in the House of Lords by Lord Sewel: Hansard HL Debates (21 July 1998), vol 592, col 818 et seq.
+The scheme seeks to give effect to the rule.
+Lord Sewel, recognising that a degree of trespass into reserved areas was inevitable, said that it was intended that any argument as to whether a provision in an Act of the Scottish Parliament relates to a reserved matter must be decided by reference to its pith and substance or its purpose and if its purpose is a devolved one it is not to be outside legislative competence merely because it affects a reserved matter: col 819.
+The question whether that aim has been achieved must be determined by examining the provisions of the Scotland Act in which the scheme is laid out.
+While the phrase pith and substance was used while these provisions were being debated, it does not appear in any of them.
+The idea has informed the statutory language, and the rules to which the court must give effect are those laid down by the statute.
+As to what they mean, the Scotland Act provides its own dictionary.
+Section 29, which must now be quoted in full, provides as follows: (1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. (2) A provision is outside that competence so far as any of the following paragraphs apply (a) it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland, (b) it relates to reserved matters, (c) it is in breach of the restrictions in Schedule 4, (d) it is incompatible with any of the Convention rights or with Community law, (e) it would remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths in Scotland. (3) For the purposes of this section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (4), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances. (4) A provision which (a) would otherwise not relate to reserved matters, but (b) makes modifications of Scots private law, or Scots criminal law, as it applies to reserved matters, is to be treated as relating to reserved matters unless the purpose of the provision is to make the law in question apply consistently to reserved matters and otherwise.
+The paragraphs of section 29(2) that require to be examined in this case are paras (b) and (c).
+The first question is whether section 45 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007 relates to a reserved matter.
+Reserved matters are the matters reserved to Westminster by section 30(1) of the Scotland Act, which gives effect to the list of matters in Schedule 5.
+Para 1 of Part II of Schedule 5 provides that the matters to which any of the sections in the Part apply are reserved matters for the purposes of the Act.
+Head E Transport lists among the subject matter of section E1, which applies to Road Transport, the following: (d) the Road Traffic Act 1988 and the Road Traffic Offenders Act 1988.
+Section 45 of the 2007 Act does not refer expressly to any of the provisions of the Road Traffic Act 1988 or the Road Traffic Offenders Act 1988.
+But, as it applies to offences under enactments passed before the 2007 Act generally, it must be taken to refer to them by implication.
+Their subject matter is a reserved matter.
+The question whether a provision relates to a reserved matter in terms of section 29(2)(b) is to be determined by reference to the purpose of the provision, applying the rule set out in section 29(3).
+This rule lays down the primary test of what is meant by purpose.
+But it is necessary to have regard also to section 29(4) which deals with a special category of overlap between reserved matters and matters which are not reserved that is in point in this case.
+This is because section 126(5) of the Scotland Act provides that references in the Act to Scots criminal law include criminal offences, jurisdiction, evidence, procedure and penalties and the treatment of offenders, and because section 45 of the 2007 Act deals with what the head note to Part 3 of that Act refers to as penalties.
+The list of reserved matters has been drawn up by reference to different aspects of executive or governmental responsibility.
+But the spheres of activity embraced by Scots private law and Scots criminal law, which are not reserved, do not respect those boundaries.
+They extend across all of them.
+The regulation of both devolved matters and reserved matters within Scotland is likely to involve questions of Scots private law and Scots criminal law.
+Section 29(4) does not apply if, applying the test laid down by section 29(2), the provision in question has already been found otherwise to relate to a reserved matter.
+That is the effect of para (a) of this subsection.
+It does apply, however, if it makes modifications of Scots private law or Scots criminal law as it applies to reserved matters: para (b).
+Here too the boundary between what is reserved and what is not reserved is to be determined by applying a purpose test.
+The key word here is consistently.
+If the purpose is to make the relevant rule of Scots criminal law apply consistently to reserved matters and otherwise, it will pass the test.
+The provision will not then fall to be treated as relating to a reserved matter, and thus outside the legislative competence, because it is caught by section 29(2)(b).
+The question whether the provision is in breach of any of the restrictions in Schedule 4 must also be addressed in this case.
+The paragraphs in that Schedule that need to be considered are paras 2 and 3, which so far as relevant provide as follows: 2 (1) An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, the law on reserved matters. (2) In this paragraph, the law on reserved matters means (a) any enactment the subject matter of which is a reserved matter and which is comprised in an Act of Parliament or subordinate legislation under an Act of Parliament, and (b) any rule of law which is not contained in an enactment and the subject matter of which is a reserved matter, and in this sub paragraph Act of Parliament does not include this Act. (3) Sub paragraph (1) applies in relation to a rule of Scots private law or Scots criminal law (whether or not contained in an enactment) only to the extent to that the rule in question is special to a reserved matter 3 (1) Paragraph 2 does not apply to modifications which (a) are incidental to, or consequential on, provision made (whether by virtue of the Act in question or another enactment) which does not relate to reserved matters, and (b) do not have a greater effect on reserved matters than is necessary to give effect to the purpose of the provision. (2) In determining for the purposes of sub paragraph (1)(b) what is necessary to give effect to the purpose of a provision, any power to make laws other than the power of the Parliament is to be disregarded.
+There is obviously some duplication between section 29 and the provisions of this Schedule.
+At first sight, paragraph 2(1) declares what the reader already knows, having studied section 29(4).
+But, in contrast to section 29(4) which deals with the question whether a provision relates to a reserved matter, para 2(1) refers to the law on reserved matters.
+The meaning of this expression is set out in para 2(2)(a).
+The starting point is that the law on reserved matters as a whole is protected from modification by the Scottish Parliament.
+This appears to withdraw the protection that is given by section 29(4) to modifications of a rule of Scots private law or Scots criminal law as it applies to reserved matters whose purpose was to make the law apply consistently to reserved matters and otherwise.
+But paragraph 2(1) is itself qualified by the opening words of paragraph 2(3).
+The words is special to a reserved matter are the key words in this subparagraph.
+The contrast which they suggest is between a rule of Scots criminal law which is special to a reserved matter on the one hand and one which is general in its application on the other because it extends to both reserved matters and matters which have not been reserved.
+There is a strong family likeness between the two tests, as Lord Walker says: see para [54].
+But a modification which survives the test in section 29(4) will have to pass the tests in Schedule 4: section 29(2)(c).
+If it passes the test in paragraph 2(3), paragraph 2(1) will not apply.
+It will have no need of the protection that is given by paragraph 3 to modifications that fall within the scope of that paragraph.
+This analysis shows that the questions which lie at the heart of this case are: (1) whether the purpose of section 45 was to make a modification to Scots criminal law as defined in section 126(5); (2) if so, whether its purpose was to make the law apply consistently to reserved matters and otherwise; and (3) if it passes those tests, whether the rule that it sought to modify was special to a reserved matter within the meaning of paragraph 2(3) of Schedule 4.
+Section 45 of the 2007 Act
+Section 45 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007 is one of a group of sections dealing with sentencing powers which appear in Part 3 of the Act under the heading Penalties.
+Two sections require to be noticed in addition to section 45.
+First there is section 43, which deals with common law offences.
+It amends section 5 of the Criminal Procedure (Scotland) Act 1995, which deals with the sheriffs summary jurisdiction and powers, in two respects: in section 5(2)(d), the power to impose imprisonment is raised from any period not exceeding three months to twelve; and section 5(3) is repealed.
+Secondly, there is section 44, which increases the maximum sentence of imprisonment for a list of particular summary only statutory offences which had attracted a maximum sentence in excess of the previous common law maximum but were below the new maximum of twelve months for offences dealt with summarily.
+Section 45 is headed Other statutory offences.
+It is not necessary for the purposes of this case to quote it in full.
+The provisions that are relevant provide as follows: (1) The maximum term of imprisonment to which a person is liable on summary conviction of a relevant offence is, by virtue of this subsection, 12 months. (2) Accordingly, the specification of a maximum period of imprisonment in every relevant penalty provision is, in relation to any relevant offence to which it applies, to be read subject to subsection (1). (3) Without prejudice to subsections (1) and (2), the Scottish Ministers may by order amend the specification of a maximum term of imprisonment in a relevant penalty provision so as to specify, in relation to the relevant offence to which it applies, that the maximum term of imprisonment to which a person is liable on summary conviction is 12 months. (6) In this section, a relevant offence is an offence under a relevant enactment or instrument which is (a) triable either on indictment or summary complaint, and (b) punishable on summary conviction with a maximum term of imprisonment of less than 12 months. (7) In this section a relevant enactment is an Act passed before this Act It is common ground that the Road Traffic Offenders Act 1988 is a relevant enactment and that a contravention of section 103(1)(b) of the Road Traffic Act 1988 is a relevant offence for the purposes of this section.
+What was the purpose of section 45?
+Section 29(3) of the Scotland Act provides that, when consideration is being given to the purpose of the provision, regard is to be had to its effect in all the circumstances.
+One of the circumstances to which it is proper to have regard is the situation before the provision was enacted, which it was designed to address.
+Reports to and papers issued by the Scottish Ministers prior to the introduction of the Bill, explanatory notes to the Bill, the policy memorandum that accompanied it and statements by Ministers during the proceedings in the Scottish Parliament may all be taken into account in this assessment.
+The sentencing powers of the sheriff, sitting as a court of summary jurisdiction, are regulated by statute.
+Section 7(5) of the Criminal Procedure (Scotland) Act 1995 provides that a stipendiary magistrate shall have the summary criminal jurisdiction and powers of a sheriff.
+Prior to the commencement of the Criminal Proceedings etc (Reform) (Scotland) Act 2007, section 5(2) of the 1995 Act provided inter alia as follows: The sheriff shall, without prejudice to any other or wider powers conferred by statute, have power on convicting any person of a common law offence . (d) to impose imprisonment, for any period not exceeding three months.
+Section 5(3) of the 1995 Act provided that the maximum sentence for a second or subsequent offence involving violence or dishonesty was six months.
+The effect of these provisions was that the power of the sheriff or stipendiary magistrate to impose a sentence of imprisonment was limited to a maximum of three months in the case of common law crimes (except in the case of certain types of repeat offences) and, in the case of statutory offences, to the maximum laid down by the relevant statute.
+In the case of a contravention of section 103(1)(b) of the Road Traffic Act 1988, section 33 of and Part I of Schedule 2 to the Road Traffic Offenders Act 1988 provided that the maximum if the offence was prosecuted summarily in Scotland was six months.
+In November 2001 the Minister of Justice appointed a committee under Sheriff Principal John McInnes QC to review the provision of summary justice in Scotland, including the structures and procedures of the sheriff courts and the district courts as they related to summary business and the inter relation between the two levels of court, and to make recommendations for the more efficient and effective delivery of summary justice in Scotland.
+In the report which it presented to Ministers in January 2004 the Summary Justice Review Committee identified a need to relieve pressure on the higher courts.
+This implied a need to move cases from the High Court of Justiciary to the sheriff and jury court, and in turn a need to move cases from the sheriff and jury court to summary procedure.
+In para 7.87 of its report it recommended that, to equip summary judges with the disposals that would be necessary to deal with cases that would be heard summarily in the future, the criminal jurisdiction of judges sitting summarily should be increased to a maximum of twelve months detention or imprisonment or a 20,000 fine.
+Having consulted on this recommendation among other proposals, the Scottish Ministers decided to accept it.
+In March 2005 the Minister for Justice published Smarter Justice, Safer Communities Summary Justice Reform Next Steps (Scottish Executive, March 2005).
+In para 4.10 reference was made to the recommendations that the Committee had made which were designed to promote case handling at a more appropriate level: Recognising the pressures on the solemn system, the Committee recommended that the sentencing powers of a sheriff sitting without a jury should be raised to one year in custody or a fine of 20,000, enabling the transfer of the least serious solemn business to the summary courts In para 4.50 it was stated that it was proposed to implement the reports recommendations in relation to the custodial sentencing powers of sheriffs sitting summarily.
+The Criminal Proceedings etc (Reform) (Scotland) Bill was introduced into the Scottish Parliament in February 2006.
+In para 186 of the explanatory notes to the Bill it was said of section 35 (which became section 45 when the Bill was passed) that it brought the maximum summary prison sentences for certain statutory offences into line with the new maximum sentence for common law offences set out in what is now section 43 of the Act.
+In the Policy Memorandum which accompanied the Bill it was stated in para 6 that the Bill made provision in eight main policy areas, including: increases in the criminal sentencing powers of the summary courts, ensuring that those courts can deal with an appropriate range of cases in terms of both severity and caseload, and do so more quickly than is currently the case.
+In para 206 it was stated that the Executive believed that professional sheriffs should be able to deal with a wider range of cases under summary procedure than they were currently entitled to, including some that would attract a higher penalty.
+The theme that is apparent from these earlier documents was picked up by the Justice 1 Committee in its report on the general principles of the Bill: Justice 1, 10th Report 2006, Stage 1 Report on Criminal Proceedings etc (Reform) (Scotland) Bill, 5th July 2006.
+In para 293 of its report the Committee said that one of the principal drivers for the reforms proposed by the Bill was that justice should be dispensed at the appropriate level and that this meant, among other things, the granting of significantly increased sentencing powers to sheriffs sitting without a jury.
+In para 294 it said that it broadly accepted that there was merit in some cases being dealt with at lower levels of the judicial system than was the case at present.
+Introducing the stage 1 debate in the Parliament on 14 September 2006, the Minister for Justice said that the Bill made a number of changes to the detailed law of criminal procedure, that each of these changes played its part in speeding up the system as a whole, that the Bill would ensure that increased sentencing powers for sheriffs would ease the pressure on the higher courts and that the bill was to be regarded as part of the executives wider work to reform the summary justice system: Scottish Parliament Official Report, cols 27664 6.
+In my opinion this material shows conclusively that the purpose of section
+45 of the 2007 Act was to contribute to the reform of the summary justice system by reducing pressure on the higher courts.
+An increase in the sentencing powers of sheriffs when they were dealing with statutory offences was seen as a necessary of this process.
+The jurisdiction of the sheriff sitting summarily is defined by reference to the penalties that the sheriff can impose.
+These are pre eminently matters of Scots criminal law: see section 126(5).
+As it was to a rule of Scots criminal law that the provision was directed, I would hold that it does not relate to a reserved matter within the meaning of section 29(2)(b).
+Was it to make the law apply consistently?
+Section 45 of the 2007 Act forms part of a group of sections, all directed to a reform or modification of the sentencing powers of the sheriff sitting summarily.
+The leading provision is section 43, which increased the maximum sentence for common law offences from three (or, in the case of some repeat offences, six) months to twelve months.
+It is obvious however that to have left the matter there would have led to an imbalance in the system between how common law offences were to be dealt with on the one hand and how statutory offences were to be dealt with on the other.
+The reform that this would have achieved would have been incomplete and confusing.
+To achieve its object it had to be extended across the board to statutory offences as well.
+To draw a line between statutory offences relating to reserved matters and those relating to matters that were not reserved would have been even more confusing.
+When they were dealing with an offence created by a United Kingdom statute, prosecutors and sheriffs would have had to check in each case whether they were on the right side of the line.
+Statutory offences of all kind form a large part of the diet of the summary courts.
+To achieve a complete and worthwhile reform of the summary justice system a modification of the sentencing power across the whole range of statutory offences was required.
+In my opinion the purpose of the modification in section 45 must be taken to have been to make the law relating to the increased sentencing power of the sheriff sitting summarily apply consistently to reserved matters and otherwise.
+I would hold that section 45 is not to be treated as relating to a reserved matter under section 29(4).
+Is the rule special to a reserved matter?
+The question that must now be addressed is that set out in para 2(3) of Schedule 4: is the rule of Scots criminal law that the Act seeks to modify special to a reserved matter? To answer it, one must first identify the rule of Scots criminal law that is being modified.
+Then one must ask whether that rule is special to a reserved matter.
+Identifying the rule is a crucial step towards reaching the right answer to the question whether the modification that is proposed is within the competence of the Scottish Parliament or must be dealt with at Westminster.
+I agree with Lord Rodger that, unlike section 29(3) and (4), para 2 of the Schedule concentrates on the rule of law that is being modified by the enactment and makes no mention of the purpose of the modification: see para [122].
+But the purpose of the enactment may nevertheless be referred to in order to identify the rule of law that is being modified.
+I think that it is clear that any modification of the maximum punishment
+that can be imposed for the offences that the road traffic legislation has created must be held to be a matter for the United Kingdom Parliament at Westminster.
+The rule of Scots law as to the maximum term of imprisonment that can be imposed would fall to be treated as a rule that was special to a reserved matter.
+So would any other limits on the extent of the penalties or as to the scope of offences that the Road Traffic legislation lays down.
+The Calman Report, Serving Scotland Better: Scotland and the United Kingdom in the 21st Century, June 2009, considered in paras 5.167 181 certain aspects of road traffic regulation including drink driving limits and speed limits.
+As the authors of the report were right to recognise, under the current legislation any alteration to those limits that might be thought to be acceptable in Scotland would not be within the legislative competence of the Scottish Parliament.
+Some concern was expressed during the progress of the Bill as to whether this reform might lead to what was referred to as sentence drift a tendency on the part of sheriffs to impose higher sentences for these offences than they would previously have regarded as appropriate.
+But it is plain that this was not what the reform was intended to do, and there is no evidence that this has in fact happened.
+So I do not think that it would right to say that the purpose of section 45 was to achieve an overall increase in the sentences that sheriffs were imposing.
+Had that been the purpose, it would have gone some way to identifying the rule of law that was being modified.
+As it is, the rule cannot be identified by that route.
+Section 33 of and Part I of Schedule 2 to the Road Traffic Offenders Act 1988 provide that the maximum sentence of imprisonment for the offence under section 103(1)(b) of the Road Traffic Act 1988 if prosecuted summarily in Scotland is six months and that it is twelve months if prosecuted in Scotland on indictment.
+They contain, in effect, two rules of Scots criminal law.
+One is a rule as to the overall maximum sentence, which is twelve months imprisonment.
+That, plainly, is a rule which is special to the Road Traffic Acts and it is a reserved matter.
+The other is a rule about Scots criminal jurisdiction and procedure, which is not reserved.
+It is that rule which determines the procedure under which the maximum sentence can be imposed.
+The purpose of the modification that section 45 makes is to enable more statutory offences to be prosecuted summarily.
+The maximum sentence of imprisonment for the offence if prosecuted in Scotland remains twelve months.
+The modification relates to the procedure which determines whether the sheriff has jurisdiction to impose the maximum sentence.
+It extends the power that is given to him when he is sitting summarily.
+It seems to me therefore that the rule of Scots law that is being modified is the rule of procedure, not the rule of Scots law as to the maximum sentence for the offence.
+The rule of procedure is a rule that applies generally to the way cases are dealt with in the sheriff court.
+It is not special to the Road Traffic Offenders Act 1988.
+The purpose of para 2(3) of Schedule 4 to the 1998 Act, as I understand it, is to avoid the fragmentation of rules of Scots criminal law which are of general application into some parts which are within the Scottish Parliaments competence and some parts which are not.
+It is, of course, the case that the difference between the maximum sentence that could be imposed by a sheriff sitting summarily and that which could be imposed by him in solemn proceedings was prescribed in Schedule 2 to the Road Traffic Offenders Act 1988.
+But in doing so the Schedule was basing itself on a distinction between two forms of Scots criminal procedure which apply generally.
+I think that it was within the competence of the Scottish Parliament to extend its general reform of that procedure to the forms of procedure referred in this and other statutes that deal with reserved matters, otherwise fragmentation would occur.
+I am not confident that it helps to reason by way of examples.
+Each case must be taken on its own merits.
+In case of doubt, the words to the extent only suggest that a generous application of para 2(3) which favours competence is to be preferred, as opposed to one which applies it narrowly.
+And the key to the decision in this case lies in identifying the rule in question, which is achieved by examining the purpose of the provision which is under scrutiny.
+One could, of course, say that Schedule 2 contains two maximum sentences, one for summary proceedings and the other for proceedings on indictment, and that as both are reserved matters it was not open to the Scottish Parliament to alter either of them.
+But that, in my opinion, would be to carry the process of analysis too far.
+The word special indicates that, in cases such as this where the decision depends on the exercise of judgment, the purpose of the provision may be the best guide.
+So, in agreement with Lord Walker and Lord Brown and respectful disagreement with Lord Rodger and Lord Kerr, I would hold that section 45 was not directed to a rule which was special to a reserved matter within the meaning of para 2(3) of Schedule 4, that para 2(1) of the Schedule does not apply, that it survives scrutiny under section 29(2)(c) and there is no need to refer to para 3.
+Had it been necessary to refer to para 3, I would have held that section 45 of the 2007 Act was not saved by it.
+On this point I disagree with the appeal court in Logan v Harrower.
+A decision as to the procedure under which a sentence of more than six months could be imposed was not a modification of an incidental or consequential nature.
+It was an important change in the procedure which one would expect to see set out in the body of the enactment, not in a schedule of the kind that generally deals with matters that are merely incidental or consequential on provisions found elsewhere in the enactment.
+Section 104 of the Scotland Act enables Her Majesty in Council or a Minister of the Crown, with the consent of both Houses of the United Kingdom Parliament, to make such provision as is considered necessary or expedient in consequence of any provision made by or under any Act of the Scottish Parliament.
+As the explanatory notes to that section point out, the power to make provision consequential on legislation under paragraph 3 of Schedule 4 is very limited.
+Among other things, it does not enable the Scottish Parliament to legislate otherwise than as a matter of Scots law.
+It does not have power under that provision to make any consequential provisions that require to take effect elsewhere in the United Kingdom.
+Examples of the use that is made of the power under section 104 are to be found in the Adults with Incapacity (Scotland) Act 2000 (Consequential Modifications) (England, Wales and Northern Ireland) Order 2005 (SI 2005/1790) and the Police, Public Order and Criminal Justice (Scotland) Act 2006 (Consequential Provisions and Modifications) Order 2007 (SI 2007/1098).
+There are many others.
+Lord Rodger in para [81] has mentioned some of them.
+The use of section 104 is not confined to cross border matters.
+The power was used in connection with the reforms introduced by the 2007 Act to make the powers to impose sanctions under the Road Traffic Offenders Act 1988 available in the justice of the peace courts that were to be established under the 2007 Act, and to make the same powers available in the district courts during the phased introduction of the justice of the peace courts: see the Criminal Proceedings etc (Reform) (Scotland) Act 2007 (Powers of District and JP Courts) Order 2007 (SI 2007/3480).
+I agree with Lord Rodger that the scheme for adjusting the sheriffs summary criminal jurisdiction in relation to statutory offences could have been dealt with in this way, had this been thought to be necessary.
+But the modification that was required in their case was to a procedural route that was already available for dealing with these offences in the sheriff court.
+For the reasons that I have given I consider that the judgment that was made that the modification was within the legislative competence of the Scottish Parliament was correct, and that the use of the section 104 power was not necessary.
+Conclusion
+The result of this analysis is that section 45 of the 2007 Act survives scrutiny.
+Endorsing what the appeal court decided in Logan v Harrower but differing from it as to the reason why the section is not in breach of the restrictions in Schedule 4, I would hold that the provision is within the legislative competence of the Scottish Parliament.
+I would therefore dismiss these appeals.
+Bearing in mind that the appellant Martin who is on interim liberation has not yet served the sentence that the sheriff imposed on him, I would remit both cases to the appeal court for any further orders that may be required.
+Had I been in favour of allowing the appeals I would have made an order under section 102(2)(a) of the 1998 Act removing the retrospective effect of the decision that, so far as it purports to modify the penalty provision for a contravention of section 103(1)(b) of the Road Traffic Act 1988 in Part I of Schedule 2 to the Road Traffic Offenders Act 1988, section 45(2) of the Criminal Proceedings etc (Reform) (Scotland) Act 2007 is outside the competence of the Scottish Parliament.
+I would also have made an order under section 103(2)(b) suspending its effect for two months to allow the defect to be corrected as it seems to me that, in a case of this kind, these two orders go hand in hand.
+LORD WALKER
+The Scotland Act 1998 is on any view a monumental piece of constitutional legislation.
+Parliament established the Scottish Parliament and the Scottish Executive and undertook the challenging task of defining the legislative competence of the Scottish Parliament, while itself continuing as the sovereign legislature of the United Kingdom.
+That task is different from defining the division of legislative power between one federal legislature and several provincial or state legislatures (as in Canada or Australia, whose constitutional difficulties the Judicial Committee of the Privy Council used to wrestle with, often to the dissatisfaction of those dominions).
+The doctrine of pith and substance mentioned by Lord Hope in his judgment is probably more apt to apply to the construction of constitutions of that type.
+But both have to face the difficulty of defining (necessarily in fairly general and abstract terms) permitted or prohibited areas of legislative activity.
+The difficulties (viewed from the perspective of Northern Ireland) are discussed in Harry Calverts Constitutional Law in Northern Ireland, which, though written as long ago as 1968, still provides a very helpful commentary.
+It shows how different forms of words have come to be recognised as indicating a more or less proximate (or direct, or crucial) connection between a proposed enactment and an area of legislative activity.
+Calvert quotes (from an unidentified source), at pp 180 181, the argument of the Attorney General for Northern Ireland when Lynn v Gallagher [1937] AC 863 was before the House of Lords: The crux of this whole legislation lies in three words, the words in respect of used in section 4(1) of the Government of Ireland Act, 1920.
+These three words are the apt words to indicate the true subject matter of an enactment but they are not, we submit, the apt words to indicate merely the results of an enactment.
+They are possibly rather stronger than a word such as concerning, and than the phrase in relation to, but they certainly must have a different meaning, unless they may be construed contrary to the general use of language, from the word affecting.
+In the British North America Act the words used are in relation to and these words in respect of do not occur in it.
+We submit that these words in respect of are no weaker than the words there used.
+Calvert also quotes, at p 179, Higgins J in McArthur Ltd v Queensland (1920) 28 CLR 530, 565: We have to determine in each case what is the subject of the legislation what subject is the Act with respect to what it effects not what things or operations it may indirectly affect.
+These background matters must have been in the mind of those who undertook the drafting of the Scotland Act (and in particular the provisions directly relevant to these appeals).
+But in the Scotland Act Parliament has gone further, and has used more finely modulated language, in trying to explain its legislative purpose as regards reserved matters.
+The Court has to consider two groups of provisions, each of which has a particular nexus with reserved matters as defined in Schedule 5 of the Act.
+The first group of provisions consists of section 29(2)(b) as explained and qualified by subsections (3) and (4).
+The second group consists of section 29(2)(c) and Schedule 4, paras 2 and 3.
+All these provisions are set out in Lord Hopes judgment (paras 16 and 20) and I need not repeat them.
+But it is worth considering the manner in which reserved matters are defined in Schedule 5 (to which both groups of provisions are linked).
+Schedule 5, Part I, contains general reservations: the constitution, political parties, foreign affairs, public service, defence and treason.
+Part II then contains specific reservations under eleven heads (themselves elaborately subdivided and made subject to exceptions).
+Although termed specific, some of these are expressed in general terms.
+For instance, Head A1, Fiscal, economic and monetary policy, is as follows: Fiscal, economic and monetary policy, including the issue and circulation of money, taxes and excise duties, government borrowing and lending, control over United Kingdom public expenditure, the exchange rate and the Bank of England.
+Exception Local taxes to fund local authority expenditure (for example, council tax and non domestic rates).
+Many of the specific reservations in Part II are expressed as the subject matter of a particular statute (or part of a statute).
+For example Head E.1, Road Transport, includes The subject matter of . (d) the Road Traffic Act 1988 and the Road Traffic Offenders Act 1988 (subject to an exception for a few sections of the Road Traffic Act 1988).
+The use of the expression subject matter has been described (in an unsigned editorial in (1998) 19 Statute Law Review v) as an elegant drafting device but as having potential difficulties.
+So I come back to the first group of provisions, consisting of subsection (2)(b) of section 29 as explained and qualified by subsections (3) and (4).
+Its structure appears reasonably straightforward.
+Section 29(2)(b) prohibits legislation by the Scottish Parliament which relates to reserved matters.
+That is an expression which is familiar in this sort of context, indicating more than a loose or consequential connection, and the language of section 29(3), referring to a provisions purpose and effect, reinforces that.
+Section 29(4) adds to the reach of section 29(2) (as is clear from section 29(4)(a)) as regards modifications of Scots private law, or Scots criminal law, as it applies to reserved matters.
+Scots private law and Scots criminal law are widely defined in section 126 (4) and (5).
+Paragraph 29(4)s default position is restrictive: the modification is to be treated as relating to reserved matters unless the purpose of the provision is to make the law in question apply consistently to reserved matters and otherwise.
+Here the law in question must mean the relevant rule of Scots private law or Scots criminal law.
+The second group of provisions consists of section 29(2)(c) and Schedule 4, paras 2 and 3.
+Para 2(1) contains a general prohibition on modification (including amendment or repeal) of the law on reserved matters, that composite expression being defined in sub paragraph (2) by reference to the subject matter of an enactment or non statutory rule.
+So reading Schedule 4, para 2(1) and (2) together with Schedule 5, Part II, Head E1(d), we see that (if those provisions stood alone) an Act of the Scottish Parliament could not modify the Road Traffic Offenders Act 1988, because the subject matter of that Act is a reserved matter.
+As I understand it the Court is agreed (although not for identical reasons) that the legislation now in point, section 45 of the Criminal Proceedings etc (Reform)(Scotland) Act 2007, does not infringe section 29(2)(b) of the Scotland Act.
+The Court is however divided as to the effect of section 29(2)(c).
+Lord Rodger and Lord Kerr take the view that section 45 of the 2007 Act infringes section 29(2)(c) and Schedule 4, para 2 (being special to a reserved matter for the purposes of para 2(3) and not being saved by para 3, relating to incidental or consequential modifications).
+I agree that para 3 is not in point.
+The crucial provision is para 2(3).
+But it is important, in my view, to try and see it as part of a rational and coherent scheme defining the legislative competence of the Scottish Parliament.
+That is easier said than done, as the division within the Court indicates.
+When I first studied this second group of provisions I got the impression that they replicated, but in different language, the effect of what I have called the first group of provisions, and that it was hard to discern the legislative scheme or purpose underlying this.
+I still have difficulty with this.
+But I think the answer may be that section 29(2) is dealing comprehensively with the scope of any new legislation enacted by the Scottish Parliament, whereas Schedule 4 is (as its heading indicates) concerned with the protection of some existing legislation (or some non statutory rule of law) which has a reserved matter as its subject matter.
+However the statute book is already so heavily burdened that almost any new legislation is likely to modify existing legislation, and in Scotland a lot of new legislation will have the effect of modifying Scots private law or Scots criminal law.
+So in most cases both groups of provisions will be in point.
+Section 29(4) is concerned with a provision which makes a modification to Scots private law or Scots criminal law as it applies to reserved matters; in that case it is necessary to enquire whether its purpose is to make the law in question apply consistently to reserved matters and otherwise (that is, to non reserved matters).
+Schedule 4, para 2(3) is concerned with the modification of a rule of Scots private law or Scots criminal law to the extent that the rule in question is special to a reserved matter.
+There is to my mind an obvious degree of affinity between these two enactments, in that a provision intended to produce consistency in a rules application across the board (that is, to reserved matters and non reserved matters alike) is unlikely to apply to a rule which is special to a reserved matter.
+Special is to be contrasted with general and a measure intended to produce consistency across the board is general by its very nature.
+The two statutory tests are not identical (if Parliament had intended them to be identical it would no doubt have used the same words in each).
+Nevertheless they have a strong family likeness, and it would be rather surprising if a provision came within the legislative competence of the Scottish Parliament under section 29(4) but failed on the test in Schedule 4, paragraph 2(3).
+In applying each test it is necessary to identify the rule of Scots criminal law which is to be modified.
+It is to be found in sections 9 and 33 of, and Schedule 2 to, the Road Traffic Offenders Act 1988, so far as they apply to an either way offence under section 103(1)(b) of the Road Traffic Act 1988 committed in Scotland.
+These provisions are part of Scots criminal law, and they relate (almost by definition, having regard to the wording of Head E1(d)) to a reserved matter.
+It is also necessary to identify the purpose of the provision which makes the modification, that is section 45 of the 2007 Act.
+Its purpose was (as Lord Hope says in his judgment, para [31]) to contribute to the reform of the summary justice system by reducing pressure on the higher courts.
+An increase in the sentencing powers of sheriffs when they were dealing with statutory offences was seen as a necessary of this process.
+Similarly in Lord Rodgers view (para [105]) it was to introduce a novel, general, provision for determining the maximum term which a sheriff, sitting as a court of summary jurisdiction, could impose by way of imprisonment in respect of either way statutory offences which had previously attracted a maximum sentence of less than 12 months imprisonment.
+Lord Rodger gives a very similar explanation of the purpose of section 45 in para [113] of his judgment.
+In my opinion this statutory purpose includes achieving consistency in the sheriffs sentencing powers, on summary conviction, as between reserved and non reserved matters.
+Lord Rodger accepts this in para [116] of his judgment, but reaches a different conclusion on the similar point (not, I accept, exactly the same point) arising under Schedule 4, paragraph 2(3).
+I would accept that on my interpretation both section 29(4) and Schedule 4, para 2(3) may produce some difficult borderline cases, and some results which might appear anomalous.
+Perhaps they would do so on any interpretation, since in the Scotland Act Parliament was attempting to define legislative competence across the whole broad expanse of what are now regarded as the concerns of government.
+But (with great respect to the contrary views of Lord Rodger and Lord Kerr) I do not see this as a difficult borderline case.
+The relevant rule of Scots criminal law to be modified is not that driving while disqualified is a criminal offence, nor that it is a criminal offence punishable by imprisonment, nor that the maximum term of imprisonment is 12 months.
+All that has been enacted by the Westminster Parliament, and is left untouched.
+The rule to be modified is whether (and if so to what degree) the option of summary trial before the sheriff should reduce the maximum sentence that can be passed.
+That is to my mind a general matter relating to the Scottish system of criminal justice, and is not something special to the reserved matter of road transport.
+For these reasons, and for the fuller reasons in the judgment of Lord Hope, while respecting the closely argued contrary views of the minority, I agree with Lord Hope and Lord Brown that the appeals should be dismissed and the cases remitted to the Appeal Court for any further orders that may be required.
+LORD BROWN
+Section 33 of and Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988 (the RTOA), as originally enacted, provided that the offence of driving while disqualified (the offence) under section 103(1)(b) of the Road Traffic Act 1988 (the RTA) could be prosecuted in Scotland either summarily or on indictment; if summarily, the maximum punishment was six months imprisonment (and/or a fine); if on indictment, twelve months (and/or a fine).
+The RTOA and the RTA are reserved matters.
+By section 45 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007 (the 2007 Act) the Scottish Parliament purported to increase from six months to twelve months the maximum sentence that could be imposed for the offence by the sheriff sitting summarily. (Although immaterial to this appeal, it may be noted that in England and Wales the offence was, and remains, triable summarily only and subject to a maximum sentence of six months imprisonment.)
+The sole issue for determination on this devolution appeal is whether section 45 of the 2007 Act was within the Scottish Parliaments legislative competence within the meaning of section 29 of the Scotland Act 1998 (the 1998 Act).
+Section 29 has already been set out in full by other members of the Court and I need not repeat it.
+So too the relevant paragraphs of Schedule 4 to the 1998 Act (referred to in section 29(2)(c)).
+Before coming to the single point on which the Court is divided it is worth noting the following basic matters.
+First, that section 45 of the 2007 Act, the enactment impugned, did not increase the maximum penalty available for the offence in Scotland: that remained at twelve months imprisonment; what changed was that the sheriff could impose this maximum sentence no less when sitting as a court of summary jurisdiction than as a court of solemn jurisdiction.
+Secondly, that the essential purpose of section 45 (indeed, of sections 43 to 49 of the 2007 Act as a whole) was not to increase the penalties imposed by the Scottish courts but rather, by enlarging the sheriffs summary sentencing powers, to reallocate business within the court system to have more cases tried summarily instead of by a jury, summary trials generally being simpler, faster and cheaper than jury trials.
+Thirdly, that had the 2007 Act, directed as it was to reallocating court business in this way and to standardising the sheriffs summary sentencing powers for the future, not included within its provisions modification of the RTOA and the RTA in the way described, it would have created a striking contrast between the sheriffs summary powers when dealing with reserved matters and those available to him in other cases.
+Of course, as Lord Rodger points out, any such anomaly or inconsistency could if necessary be cured by resort to section 104 of the 1998 Act.
+But was that the only lawful means of achieving the desired consistency in this case? That is the question.
+I understand all of us to agree that section 45 does not fall foul of section 29(2)(b) of the 1998 Act.
+It does not relate to a reserved matter having regard to section 29(3) and is not to be deemed to relate to reserved matters by virtue of section 29(4).
+On this latter point, in common with Lord Hope, I regard section 45 as making modifications of Scots criminal law as it applies to reserved matters but as doing so for the purpose of making Scots criminal law (as to the allocation of court business) apply consistently.
+What critically divides the Court is the question raised under section 29(2)(c): as to whether section 45 is in breach of the restrictions in Schedule 4.
+I do not pretend to find paragraphs 2 and 3 of Schedule 4 entirely easy to follow and naturally I recognise the force of Lord Rodgers reasoning.
+For my part, however, I remain unpersuaded that section 45 modifies the law on reserved matters within the meaning of paragraph 2(1), given that (by virtue of paragraph 2(3)) paragraph 2(1) applies in relation to a rule of Scots criminal law only to the extent that the rule is special to a reserved matter (which I do not regard the unamended 6 months limits of the sheriffs summary jurisdiction to be).
+Even, however, were I persuaded that section 45 is to be regarded as modifying the law on reserved matters within the meaning of paragraph 2, I would conclude here that paragraph 2 is then disapplied by paragraph 3 since such modification is to be seen merely as incidental to a provision being made (for reallocation of court business and the standardisation of the sheriffs summary sentencing powers) in relation to unreserved matters and has no greater effect on reserved matters than is necessary to give effect to such purpose.
+Given that the Scottish Parliament is plainly intended to regulate the Scottish legal system I am disinclined to find a construction of Schedule 4 which would require the Scottish Parliament, when modifying that system, to invoke Westminsters help to do no more than dot the is and cross the ts of the necessary consequences.
+I too, therefore, would dismiss these appeals.
+LORD RODGER
+Does an enactment of the Scottish Parliament relate to reserved matters? Does it modify a rule of Scots criminal law that is special to a reserved matter? These are the key questions in the present appeals.
+The answers depend on the interpretation of section 29(2)(b) and (c) of the Scotland Act 1998 (the 1998 Act), along with paras 2 and 3 of Part I of Schedule 4 to the Act.
+Viewed in isolation, para 2, in particular, can appear to use impenetrable language to erect an arbitrary restriction on the Parliaments powers.
+Matters become clearer, however, when the provisions are seen in their setting in life.
+A useful starting point is the situation before 1999.
+Policy responsibility before devolution
+Until devolution took effect, leaving aside the fluctuating position of Northern Ireland, the central government of the United Kingdom was carried on by a single executive and a single Parliament.
+The executive was responsible for, and could determine, all areas of policy for the entire United Kingdom.
+Similarly, Parliament could legislate to give effect to the chosen policy in all parts of the United Kingdom.
+In practice, Parliament did not always insist on the law being uniform
+throughout the United Kingdom.
+To take only the most obvious example, Parliament did not intervene to impose uniformity on the private or criminal laws of England and Scotland.
+Instead, when legislation was to apply in both jurisdictions, where necessary, it included provisions that were tailored to fit the underlying law of both systems.
+So, for instance, the Rehabilitation of Offenders Act 1974 had to take account of differences in the two systems of criminal procedure.
+Sometimes, even if Parliament was legislating for England and Wales only, for example, the legislation could not be effective unless some provisions were made to extend to Scotland and vice versa.
+To take another obvious example, aspects of the legislation on detained patients in the Mental Health Act 1983 and the Mental Health (Scotland) Act 1984 had a cross border dimension and would have been unworkable if various provisions of the English Act had not extended to Scotland and various provisions of the Scottish Act had not extended to England.
+When the legislation was being prepared, officials and, if necessary, ministers in the various departments, including the Scottish Office, would discuss the proposals and try to iron out any difficulties.
+Even where there was no particular cross border dimension, legislation proposed by one department might have an impact on matters for which another department was responsible.
+Proposed legislation on, say, education might have an impact on employment; legislation on care in the community might raise law and order questions; legislation on transport might affect the environment; legislation on planning might affect trade and industry.
+And so on.
+More particularly, to be effective, legislation on a matter for which one department had responsibility might require that a piece of legislation falling within another departments sphere of responsibility should be amended.
+So, when a policy was being worked up and incorporated into a Bill, while one department would take the lead, very frequently officials and ministers from a number of departments would be involved.
+Suppose, for instance, the Home Office and the Scottish Office had proposed legislation to adjust the jurisdiction of the courts by increasing the sentencing powers of summary courts in both England and Wales and in Scotland.
+Suppose also that, in order to be effective, the reforming legislation would have had to modify the penalty provisions for offences in various Acts, such as the Road Traffic Offenders Act 1988 (the RTOA).
+In that event, officials of the lead departments would have consulted officials and ministers from all the departments, including the Department of Transport, having responsibility for the Acts which it was proposed should be modified.
+Sometimes the impact of the proposed legislation on a different area would be relatively insignificant perhaps involving little more than updating statutory references or bringing the language of existing legislation into conformity with the language of the proposed legislation.
+In such cases the main task of the other departments might well be to help the lead department and the Bill team by identifying provisions that would require to be modified in this way.
+But sometimes the impact would be more significant and would trench on issues of policy.
+Then there could well be differences of opinion among the departments concerned as to the best way forward.
+If officials could not resolve them, the disputed issues could be taken for decision to the appropriate cabinet committee and ultimately, if necessary, to the full cabinet or to the Prime Minister.
+The result would be a Bill which made all the necessary amendments, whatever the subject matter of the legislation being amended and irrespective of the department which had responsibility for that subject.
+Policy responsibility after devolution
+In the 1998 Act and the corresponding Acts for Wales and Northern Ireland, Parliament devolved legislative and executive authority in varying degrees.
+The powers of the Scottish Parliament are to be found in sections 28 and 29 of the 1998 Act.
+Section 28(1) of the 1998 Act provides that, subject to section 29, the Scottish Parliament may make laws.
+In terms of section 29(1), an Act of the Scottish Parliament is not law so far as any of its provisions is outside the legislative competence of the Parliament.
+Under section 29(2) a provision is outside that competence in various circumstances in particular, if, (b), it relates to reserved matters or, (c), it is in breach of the restrictions in Schedule 4.
+Leaving aside certain matters where powers are shared (section 56), it is immediately obvious that the overall scheme was to devolve power to the Scottish Executive and Scottish Parliament, but to except certain reserved matters, which are identified in Schedule 5 to the 1998 Act.
+All other matters are devolved matters although that term is not used since the Act concentrates on identifying the matters lying outside the competence of the Scottish Parliament and Scottish Executive.
+So far as these reserved matters are concerned, policy responsibility in respect of Scotland remains with the United Kingdom government and the United Kingdom Parliament retains the sole responsibility for legislating on them.
+The purpose of a provision and its validity
+It is convenient at this stage to notice that, under section 29(3) of the 1998 Act, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter and so is outside the competence of the Parliament under section 29(2)(b) is to be determined by reference to the purpose of the provision.
+Sometimes the clearest indication of the purpose of a provision will be found in a report which gave rise to the legislation or in a report of one of the committees of the Parliament.
+But very often the purpose of a provision will be clear from its context in the Act in question.
+For example, the subject matter of the Carriage of Goods by Sea Act 1992 is a reserved matter: para 1 and Section E3 of Part II of Schedule 5 to the 1998 Act.
+Obviously, therefore, if the Scottish Parliament purported to pass a Carriage of Goods by Sea (Scotland) Act with the sole purpose of repealing the 1992 Act in Scots law, its purpose would relate to a reserved matter and so its provisions would be outside the competence of the Parliament by virtue of section 29(2)(b).
+In practice, such a clear example would be unlikely to get past the legal advisers to the Scottish Parliament.
+In real life the problem is likely to arise in more complex situations.
+But assume, for example, that the purpose of an Act is to increase the sentencing powers of the lower courts in Scotland so as to allow them to deal with more serious cases.
+The purpose of the Act plainly relates to a devolved, rather than a reserved, matter.
+So its provisions will not be outside the competence of the Scottish Parliament by reason of section 29(2)(b).
+Does it follow that all of its provisions are automatically within the competence of the Scottish Parliament? By no means.
+For example, any provision which was incompatible with rights under the European Convention on Human Rights or with Community law would be outside competence by reason of section 29(2)(d) even if that provision was designed to help achieve the purpose of increasing the sentencing powers of the lower courts in Scotland.
+Similarly, any provision which was in breach of the restrictions in Schedule 4 to the 1998 Act would be outside competence again, even though the provision was designed to help achieve the purpose of increasing the sentencing powers of the lower courts in Scotland.
+Quite simply, therefore, even if the purpose of an Act is within the competence of the Scottish Parliament in terms of section 29(2)(b) of the 1998 Act, the Parliament cannot achieve that purpose by enacting provisions which are beyond its competence for one of the reasons listed in the other paragraphs of that subsection.
+As Lord Atkin put it in Gallagher v Lynn [1937] AC 863, 870, an Act may have a perfectly lawful object but may seek to achieve that object by invalid methods.
+In other words, the fact that a provision may have a lawful (devolved) purpose does not validate the provision if, for some other reason, it is outside the competence of the Parliament.
+So, in particular, the mere fact that the purpose of a provision is to increase the sentencing powers of the sheriff, sitting as a court of summary jurisdiction, will not validate it if the provision is outside the competence of the Parliament because it purports to modify a rule of Scots criminal law that is special to a reserved matter: section 29(2)(c) of, and para 2 of Part I of Schedule 4 to, the 1998 Act.
+Section 104 orders
+The fact that the powers of the Scottish Parliament are subject to these limitations means that there is now a stark contrast between the position in England and Scotland.
+For England, one executive and one Parliament continue to have the necessary powers to determine policy in all subject areas and to put it into effect by legislation.
+For Scotland, however, the necessary powers are divided between two executives and two legislatures.
+Even though the legislative arrangements for Scotland have changed in this way, the nature of the problems to be tackled by legislation has not changed.
+So, for example, some measures, like mental health legislation, which are devolved matters, still have a cross border dimension.
+Similarly, proposed legislation in one field, which happens now to be devolved, may require substantial amendment to legislation in another field, which happens now to be reserved.
+In these situations the Scottish Parliament will not have all the powers that are needed to make a fully effective reform.
+So its legislation can take the matter only so far.
+If it is to be fully effective, the legislation passed by the Scottish Parliament will require to be topped up by legislation of the United Kingdom Parliament dealing with any aspects which are beyond its competence.
+The need to provide for such situations was foreseen by those who drafted the 1998 Act.
+Section 104, which is designed to be used when they arise, is therefore a key element of the scheme for devolution.
+It contains a tailor made mechanism for using the powers of the United Kingdom Parliament to supplement legislation of the Scottish Parliament, without the need for full scale legislation by Parliament: (1) Subordinate legislation may make such provision as the person making the legislation considers necessary or expedient in consequence of any provision made by or under any Act of the Scottish Parliament or made by legislation mentioned in subsection (2). (2) The legislation is subordinate legislation under an Act of Parliament made by a member of the Scottish Executive, a Scottish public authority with mixed functions or no reserved functions, or any other person (not being a Minister of the Crown) if the function of making the legislation is exercisable within devolved competence.
+Of course, the Scottish Parliament and Scottish Executive cannot compel a Minister of the Crown to exercise the power under section 104.
+The intention underlying section 104 and indeed the whole scheme of devolution is, however, that the redistribution of powers should not impair but improve the government of the United Kingdom as a whole.
+It proceeds on the basis that both administrations can be expected to co operate appropriately.
+In particular, it presupposes that the United Kingdom ministers and Parliament will not be indifferent to the effectiveness of legislation passed by the Scottish Parliament.
+Not surprisingly, therefore, since devolution, ministers have made more than 40 orders under section 104.
+Some of the section 104 orders have concerned matters with a cross border aspect.
+When legislating for England and Wales, Parliament can, of course, still include any provisions which require to extend to Scotland in order to make the legislation effective though, doubtless, only after discussion with the Scottish Executive and their officials.
+But, as already noted, it is outside the competence of the Scottish Parliament to make any provision that would form part of the law of England and Wales: section 29(1) and (2)(a) of the 1998 Act.
+So the Scottish Parliament cannot make any changes to English law which may be needed in order to make its legislation on the devolved matter effective.
+Section 104 comes to the rescue.
+For instance, following the enactment of the Mental Health (Care and Treatment) (Scotland) Act 2003 by the Scottish Parliament, a Scotland Office minister used his power under section 104 of the 1998 Act to make the Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005 (No 2078; S 9), amending the law of, inter alia, England and Wales in order to facilitate the removal of detained patients from Scotland to England or Wales.
+But section 104 may also be needed in cases where proposed changes in the law on one subject require changes in the law on another subject.
+Given the large measure of devolution in matters such as justice, education and health, many of the subjects that are likely to be affected by legislation of the Scottish Parliament will fall within the sphere of responsibility of the Scottish Executive.
+If the proposed amendments to existing legislation are uncontroversial, then officials can deal with them.
+If there are disputes on significant matters of policy between, say, the education and criminal justice directorates, it will be for the Scottish Ministers and their officials to thrash them out and incorporate the agreed policy into legislation for the consideration of the Parliament.
+Again, whatever the principal subject matter of an Act may be, it can be expected to include the necessary amendments to all the relevant legislation on other devolved matters.
+After, as before, devolution, however, legislation on a subject which is now a reserved matter is liable to have an impact on a subject which is now devolved.
+For example, legislation on asylum seekers (a reserved matter) might have an impact on the legislation relating to accommodation for homeless persons (a devolved matter).
+Given the continuing power of Parliament to legislate for Scotland (section 28(7)), there would be no difficulty in incorporating all the necessary changes into the legislation on asylum seekers presumably, after the Home Office had discussed the proposals with the Scottish Executive, just as, formerly, the Home Office would have discussed them with the Scottish Office.
+The converse situation is where the Scottish Executive and Parliament wish to legislate on a matter which has implications for what is now a reserved matter.
+If, in the days before devolution, effective legislation could often only be prepared and introduced once policy issues in a number of discrete areas had been hammered out, the position must be the same after devolution.
+Likewise, if different departments were the guardians of policy on different matters before devolution, the same must apply after devolution the difference being that the Scottish Ministers and their directorates are now responsible for policy on devolved matters, the United Kingdom government and its departments for policy on the other (reserved) matters.
+Under section 54 of the 1998 Act, the competence of Scottish ministers is, of course, modelled on the competence of the Scottish Parliament.
+Suppose, for instance, that the Scottish Executive wanted to introduce legislation changing the system of accommodation for homeless persons in Scotland, but the reform would involve modifying provisions in a (reserved) Act on asylum seekers.
+If similar legislation had been proposed by the Scottish Office before devolution, the Scottish Office and the Home Office would have discussed the relevant policy issues.
+Eventually, the government as a whole would have reached a view on them and this view would have been reflected in the resulting legislation if any.
+Obviously, after devolution, exactly the same policy issues would present themselves.
+By devolving power over Scottish housing policy to the Scottish Executive and the Scottish Parliament, Parliament cannot have intended to remove from the United Kingdom government the power to take all the necessary decisions on asylum matters.
+So, in principle, the position after devolution must remain the same as before.
+If the Home Office and the United Kingdom Parliament were content with
+the proposed changes to the legislation on asylum seekers, there would be no difficulty: they could be made by order under section 104 of the 1998 Act.
+One example of such an order dealing with a reserved matter is the Housing (Scotland) Act 2006 (Consequential Provisions) Order 2008 (No 1889), article 6 of which amends the list of disqualifying offices in Part 3 of Schedule 1 to the House of Commons Disqualification Act 1975.
+Another example is more immediately relevant to the Criminal Proceedings etc (Reform) (Scotland) Act 2007 (the 2007 Act) which gives rise to these appeals.
+The Criminal Proceedings etc (Reform) (Scotland) Act 2007 (Powers of District and JP Courts) Order 2007 (No 3480; S 7) repeals or amends provisions of the RTOA.
+I return to this order briefly at para 151 below.
+On the other hand, if agreement could not be reached and proposed Scottish housing legislation would involve changes to legislation on asylum seekers which the United Kingdom government regarded as unacceptable, it would have to be either dropped or modified.
+This would not be to single out Scottish housing legislation exactly the same would apply to any similar proposal from the ministry with responsibility for housing in England.
+The only difference is that, for England, the dispute would have to be settled by ministers and departments within the United Kingdom government, whereas, for Scotland, it would have to be settled between a minister and department in Westminster and a minister and directorate in Edinburgh or, ultimately, between the United Kingdom government and the Scottish Executive.
+If, therefore, the Scottish Parliament persisted in legislating on the matter, despite the United Kingdom governments opposition, one would expect to find that the relevant provisions affecting asylum seekers would be outside its competence and so not law.
+By no means all encroachments by the Scottish Parliament into the territory of reserved matters are going to be dramatic or unacceptable.
+As already explained, legislation on a devolved matter is quite likely to entail some change in a reserved matter.
+Section 29(2)(c) recognises this reality.
+It proceeds on the basis that, even when the legislation of the Scottish Parliament does not relate to a reserved matter and so must relate to a devolved matter the legislative package, as a whole, may require to have some impact on the law on reserved matters, if it is to be effective.
+Section 29(2)(c) and Schedule 4 are designed to show how far, in this respect, the Scottish Parliament can go by itself.
+Consistently with the general structure of the Act, these provisions prescribe what modifications of the law on reserved matters lie outside the competence of the Scottish Parliament since they would truly be a matter for the consideration of the United Kingdom government and Parliament.
+If a proposed reform includes aspects which fall outside the competence of the Scottish Parliament in this way, that does not mean that the reform cannot go ahead: if the United Kingdom government and Parliament are content, these aspects can be addressed by an appropriate order under section 104.
+Incidental or consequential modifications
+I shall have to look at paras 2 and 3 of Part I of Schedule 4 to the 1998 Act in more detail in due course, but it is convenient to notice one aspect at this stage.
+As in pre devolution days, a piece of legislation on what is now a devolved matter may require essentially minor and technical modifications to the law on what are now reserved matters.
+Obviously, the Scottish Parliament should be able to make these modifications for itself.
+And para 3(1) of Part I of Schedule 4 makes it clear that it can provided that the modifications do not go further than is necessary.
+Referring back to the restriction imposed by para 2, para 3(1) provides: Paragraph 2 does not apply to modifications which (a) are incidental to, or consequential on, provision made (whether by virtue of the Act in question or another enactment) which does not relate to reserved matters, and (b) do not have a greater effect on reserved matters than is necessary to give effect to the purpose of the provision.
+The paragraph refers to modifications which are incidental to, or consequential on, provision made . which does not relate to reserved matters.
+The adjectives suggest the kinds of relatively minor modifications which are often to be found in schedules, rather than cluttering up the body of a traditional United Kingdom statute.
+The wording of a form to be used in making an application or carrying out a transaction is an example of the kind of incidental matter which is usually consigned to a schedule.
+As mentioned already at para 72 above, typical consequential amendments are concerned to modernise the language of an existing provision or to update legislative references.
+Amendments of this kind are also usually found in a schedule to an Act.
+Precisely because they raise no separate issue of principle, amendments of these kinds can be safely stowed away in a schedule, which is unlikely to be debated in any detail, if at all.
+If the legislature approves the main provisions, then it must equally approve these technical and mechanical changes which are needed to give effect to the main provisions.
+Similarly, it is easy to see that a modification of that kind to the law on a reserved matter, following on from legislation on a devolved matter, would be unlikely to raise any issue of principle to which the relevant United Kingdom minister or Parliament would object.
+So the Scottish Parliament can deal with it.
+That is what para 3(1) provides.
+In the unlikely event that a problem arose, the Secretary of State could make an order under section 35(1)(b) of the 1998 Act prohibiting the Presiding Officer from submitting the Bill for Royal Assent.
+With that rather lengthy introduction, I can now turn to examine the particular problem which gives rise to these appeals.
+The problem in these appeals
+Put briefly, section 45 of the 2007 Act purports to provide inter alia that a person convicted on summary complaint of a contravention of section 103(1)(b) of the Road Traffic Act 1988 (the RTA) is liable to a maximum term of imprisonment of 12 months rather than of 6 months, as originally provided in section 33 of, and Part I of Schedule 2 to, the RTOA.
+The effect of para 1 and Section E1 of Part II of Schedule 5 to the 1998 Act is that the RTOA is a reserved matter.
+So the enactment that comprises section 33 of, and Part I of Schedule 2 to, that Act is the law on a reserved matter.
+The appellants maintain that, to the extent that it purported to modify the maximum term of imprisonment on summary conviction laid down by the RTOA, section 45 was special to this reserved matter and so outside the competence of the Scottish Parliament by reason of section 29(2)(c) of, and para 2 of Part I of Schedule 4 to, the 1998 Act.
+It is therefore not law.
+It follows, they say, that the maximum term of imprisonment on summary conviction of a contravention of section 103(1)(b) of the RTA remains 6 months.
+If so, the terms of imprisonment, of over 6 months, imposed on the appellants for their respective contraventions of section 103(1)(b) of the RTA, were incompetent and the bills of suspension must be passed and the sentences quashed.
+The same point came before the criminal appeal court (Lord Nimmo Smith, Lord Eassie and Lord Wheatley) in Logan v Harrower 2008 SLT 1049.
+The court held that section 45 of the 2007 Act was within the competence of the Parliament.
+In the present cases the appeal court simply followed that decision and, without issuing any written judgment, refused to pass the bills of suspension.
+Summary jurisdiction before the 2007 Act
+Before looking in detail at the provisions of the 1998 Act, it is necessary to examine the position on summary jurisdiction before section 45 of the 2007 Act was brought into force on 10 December 2007.
+Following the enactment of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act), the only provision dealing with the summary jurisdiction and powers of the sheriff to impose a sentence of imprisonment was section 5 of that Act.
+By section 5(1) the sheriff, sitting as a court of summary jurisdiction, was to continue to have all the jurisdiction and powers exercisable by him at the commencement of the Act.
+Section 5(2) then provided that, without prejudice to any other or wider powers conferred by statute, on convicting any person of a common law offence, the sheriff was to have power, (d), to impose imprisonment, for any term not exceeding 3 months.
+By subsection (3), in the case of a second or subsequent conviction of an offence inferring dishonest appropriation of property (or attempt) or of an offence inferring personal violence, the sheriff was to have power to impose a term of imprisonment not exceeding 6 months.
+Since this was the only general provision dealing with the extent of the sheriffs summary powers of imprisonment, under the 1995 Act there was no general provision of any kind in Scottish criminal procedure which prescribed the maximum term of imprisonment which a sheriff, sitting as a court of summary jurisdiction, could impose where someone was convicted of a statutory offence.
+The limit depended on what the legislature had provided for the particular offence.
+So, if you wanted, for example, to know the maximum sentence of imprisonment available on a conviction, on summary complaint, under the Knives Act 1997 you would look at sections 1(5)(a) and 2(2)(a) of that Act.
+Similarly, for a summary conviction of a contravention of section 103(1)(b) of the RTA, you would look in Part I of Schedule 2 to the RTOA.
+Often you would find that the maximum penalty on summary conviction was 3 or 6 months.
+But, even as long ago as 1871, section 7 of the Prevention of Crime Act permitted the sheriff to impose 12 months imprisonment on summary conviction of an offence against the Act.
+And, if you looked at section 25 of, and Schedule 4 to, the Misuse of Drugs Act 1971 today, you would see that the maximum sentence on summary conviction of various offences is 12 months imprisonment.
+In 2004 the Summary Justice Review Committee chaired by Sheriff Principal McInnes QC recommended that, in order to relieve pressure on the courts of solemn jurisdiction, the criminal jurisdiction of judges sitting summarily should be increased: they should be able to impose a maximum sentence of 12 months imprisonment or detention and a maximum fine of 20,000.
+The first group of sections in Part 3 of the 2007 Act (sections 43 to 49) was designed to give effect to a slightly modified version of the Committees recommendation.
+Sections 43 to 45 dealt with the recommendation on imprisonment for the sheriff court.
+Section 46 dealt with the justice of the peace court, while sections 47 and 48 were designed to increase the maximum available fine to 10,000, rather than 20,000, as contemplated by the Committee.
+Section 49 dealt with compensation orders.
+The intention behind the relevant provisions of the 2007 Act therefore was that sheriffs sitting as a court of summary jurisdiction should be able to deal with more serious contraventions of the common law and statute law not that they should impose higher sentences for the same conduct.
+The anticipated benefits of the reform were thought to outweigh the admitted risk that the effect of increasing the sentences which the summary courts could impose would be an undesirable upward drift in the level of sentences.
+The appeal court has the necessary powers to check any such tendency in an appropriate case.
+The reform as carried out by the 2007 Act
+So far as imprisonment is concerned, the reform was effected by three separate provisions.
+The first, section 43, dealt with the power of imprisonment for common law offences.
+Most common law offences, such as assault, are triable either on summary complaint or on indictment.
+For these cases the reform was effected simply by substituting 12 months for 3 months in section 5(2)(d) of the 1995 Act.
+So now the maximum penalty for all common law offences is 12 months.
+Section 5(3), being no longer needed, was repealed.
+No common law offence falls within the area of reserved matters and so no issue as to legislative competence arises.
+The second provision was in section 44, which deals with certain specified offences that can be tried only on summary complaint.
+Again, the maximum term of imprisonment is increased to 12 months.
+The reform was effected by amending the penalty provisions in the individual statutes creating the offences.
+Since none of the offences falls within the area of reserved matters, again no issue as to legislative competence arises.
+Section 45 completed the scheme by dealing with statutory offences which are triable either on indictment or on summary complaint (either way offences) and which are punishable on summary conviction with a maximum term of imprisonment of less than 12 months (subsection (6)).
+Section 45(1) and (2) provide: (1) The maximum term of imprisonment to which a person is liable on summary conviction of a relevant offence is, by virtue of this subsection, 12 months. (2) Accordingly, the specification of a maximum period of imprisonment in every relevant penalty provision is, in relation to any relevant offence to which it applies, to be read subject to subsection (1).
+By section 45(2) the specification of a maximum period of imprisonment in any relevant penalty provision in any Act passed before the 2007 Act is to be read subject to section 45(1).
+In short, section 45 was intended to introduce a novel, general, provision for determining the maximum term which a sheriff, sitting as a court of summary jurisdiction, could impose by way of imprisonment in respect of either way statutory offences which had previously attracted a maximum sentence of less than 12 months imprisonment.
+In all such cases the sheriff is now to be able to impose a maximum sentence of 12 months imprisonment.
+In order to achieve its purpose, section 45 had to do two things.
+First, it had to make provision for the maximum term of imprisonment to which a person is liable on summary conviction of a relevant offence to be 12 months.
+That is what subsection (1) does.
+But, by itself, that provision would not have worked or, at the very least, would have left the position unclear.
+By the very terms of subsection (6)(b), section 45 applies only to offences where the statutory maximum term of imprisonment on summary complaint has already been fixed at less than 12 months.
+In other words, if it is to work, section 45 must also, secondly, increase the previous maximum term of imprisonment for the offences in question when tried on summary complaint.
+So the new rule in section 45(1) has to be made to prevail over, and to supersede, any penalty provision providing for a lower maximum term of imprisonment on summary conviction of any either way offence in any relevant enactment.
+That is what subsection (2) is designed to do.
+The present case shows subsection (2) in action.
+Section 33 of the RTOA provides: (1) Where a person is convicted of an offence against a provision of the Traffic Acts specified in column 1 of Part I of Schedule 2 to this Act or regulations made under any such provision, the maximum punishment by way of fine or imprisonment which may be imposed on him is that shown in column 4 against the offence and (where appropriate) the circumstances or the mode of trial there specified. (2) Any reference in column 4 of that Part to a period of years or months is to be construed as a reference to a term of imprisonment of that duration. (6) (5) (b) Summarily, in Scotland. (c) On indictment, in Scotland. (7) (4) Punishment Disqualification Endorsement Penalty points The table below sets out the entry relating to contraventions of section 103(1)(b) of the RTA in Part I of Schedule 2 to the RTOA: (3) (2) (1) Provision General Mode of creating nature of prosecution offence offence Offences under the Road Traffic Act 1988 RTA Driving (a) Summarily, (a) 6 months Discretionary. Obligatory. 6 in England and or level 5 on section while 103(1)(b) disqualified. Wales. the standard scale or both. (b) 6 months or the statutory maximum or both. (c) 12 months or a fine or both.
+Taking section 33 and the table together leaving the 2007 Act on one side on a summary conviction of a contravention of section 103(1)(b) of the RTA in Scotland, the maximum punishment by way of imprisonment which may be imposed on the offender is 6 months.
+A contravention of section 103(1)(b) of the RTA is a relevant offence in terms of section 45(6) of the 2007 Act.
+Similarly, section 33 of, and Part I of Schedule 2 to, the RTOA constitute a relevant penalty provision in terms of section 45(7) of the 2007 Act.
+So, by virtue of section 45(2), the specification of a maximum period of imprisonment of 6 months on summary conviction in column 4 of Part I of Schedule 2 is to be read subject to section 45(1) of the 2007 Act.
+In other words, the relevant entry in column 4 of the Schedule is to be read subject to the requirement that the maximum term of imprisonment on summary conviction of any relevant offence (including a contravention of section 103(1)(b) of the RTA) is to be 12 months.
+Section 45(3) of the 2007 Act gives the Scottish Ministers power by order actually to amend the specification of a maximum term of imprisonment in a relevant penalty provision.
+But the Court was told that the Ministers had not exercised that power in respect of Part I of Schedule 2 to the RTOA.
+An order amending the figure in column 4 of the Schedule from 6 to 12 would make the position clearer for anyone consulting it.
+But it would not change the substance.
+If section 45 was within the competence of the Scottish Parliament in this regard, section 45(1) prevails over the Schedule and provides that the maximum term of imprisonment for someone convicted on summary complaint of a contravention of section 103(1)(b) of the RTA is 12 months.
+Therefore, even if section 45 does not technically amend the figure in column 4 of the Schedule, it certainly purports to supersede, and thereby modify, the law comprising section 33 of the RTOA and the relevant entry in the Schedule.
+Similarly, it purports to supersede and modify all the other comparable penalty provisions which prescribe the maximum term of imprisonment that can be imposed, on summary conviction, for either way offences in statutes dealing with reserved matters.
+In short, section 45 purports to modify, inter alia, the maximum term of imprisonment to which someone is liable on summary conviction of a contravention of section 103(1)(b) of the RTA by increasing it from 6 months to 12 months.
+The issue in the appeals is whether, in so far as it purports to make this modification of the provisions of the RTOA, section 45 of the 2007 Act is outside the competence of the Scottish Parliament in any of the ways specified in section 29(2) of the 1998 Act.
+In fact, the parties are agreed that the only relevant limits are those in section 29(2)(b) and (c).
+Therefore, the Court has to decide whether section 45 of the 2007 Act falls foul of the limits in section 29(2)(b) and (c) and para 2 of Part I of Schedule 4.
+It is convenient to start with section 29(2)(b).
+Is section 45 beyond the competence of the Scottish Parliament because it relates to a reserved matter?
+In para 75 above, I have given a hypothetical example of an Act of the Scottish Parliament whose purpose would obviously relate to a reserved matter.
+The Act would therefore be outside its competence.
+Sometimes, of course, the purpose of a provision may be obscure.
+And, even when it is not obscure, people may describe the purpose in slightly different ways.
+But, having regard to its background and its context, I would identify the purpose of section 45 of the 2007 Act as being to adjust the jurisdiction of the Scottish courts by making 12 months the maximum term of imprisonment to which a person is liable on summary conviction of any either way statutory offence.
+For the sake of brevity, I shall refer to this purpose as being to increase the sheriffs summary sentencing powers.
+The jurisdiction and sentencing powers of the Scottish courts are not reserved matters.
+So the purpose of the section can on no view be said to relate to reserved matters.
+This is so, even though, in order to achieve its purpose, as part of the scheme for adjusting the jurisdiction of the Scottish courts, the section does undoubtedly purport to affect reserved matters, viz, by modifying the relevant penalty provision in the RTOA and, as the advocate depute accepted, by modifying penalty provisions for either way offences in any other statutes falling within the scope of the reserved matters in Schedule 5 to the 1998 Act.
+An example would be the maximum term of imprisonment on summary conviction of a corrupt practice under section 168(1)(b) of the Representation of the People Act 1983.
+Section 29(4) of the 1998 Act has also to be considered, however, since it contemplates the possibility that a provision whose purpose does not otherwise relate to a reserved matter may nevertheless be treated as relating to a reserved matter and so fall outside the competence of the Scottish Parliament.
+Subsection (4) applies to a provision which makes modifications of Scots private law, or Scots criminal law, as it applies to reserved matters.
+So the subsection would apply only if section 45 could be said to make a modification to Scots criminal law as it applies to reserved matters.
+The advocate depute argued that subsection (4) did not apply to a case like the present because it was restricted to cases where the provision in question applied only to reserved matters.
+Although no such qualification appears in the wording, he submitted that it was implicit since, if a provision applied to both reserved and devolved matters, its purpose would, inevitably, be to make the law apply consistently to reserved matters and otherwise.
+I accept that, where a provision applies to both reserved and devolved matters, its effect may be to make the law apply consistently to both.
+But its purpose may be different.
+It is possible, for example, to conceive of a situation where the purpose of a provision was actually to make a modification in relation to the criminal law applying to a particular reserved matter, but the provision was made to apply, incidentally, to devolved matters.
+Section 29(4) must be apt to catch a case of that kind.
+That said, I am very doubtful whether subsection (4) applies in this case.
+The words of the subsection obviously cover a case where some general provision of Scots private or criminal law applies to reserved matters.
+For example, it would cover modifications to the general law on limitation as it applied to actions relating to some reserved matter; or modifications to, say, the general law of criminal procedure as it applied to an accuseds trial, on summary complaint or on indictment, for some offence constituting a reserved matter.
+In such cases the provision modifies the law applying to the reserved matter; it does not modify the reserved matter itself.
+But Parliament provides that, subject to the unless clause, it is none the less to be treated as relating to the reserved matter.
+In the present case, by contrast, section 45 actually modifies the reserved matter or, rather, the law on the reserved matter viz, the penal provision in Part I of Schedule 2 to the RTOA.
+In my view section 29(4) is not designed to cover a provision of this kind.
+Therefore, as far as section 29(2)(b) is concerned, the position is regulated by section 29(3).
+Even if this were considered to be too narrow a construction of section 29(4) of the 1998 Act, section 45 of the 2007 Act would still not fall to be treated as relating to the reserved matter of the RTOA.
+A provision which makes modifications of Scots criminal law, as it applies to reserved matters, is to be treated as relating to reserved matters unless the purpose of the provision is to make the law apply consistently to reserved matters and otherwise.
+The phrase, the purpose of the provision, must refer to the same purpose in both subsection (3) and subsection (4).
+Part of the purpose of section 45 as described in para 112 above is indeed to make the law on the sheriffs power to imprison apply consistently to all either way statutory offences, whether constituting reserved matters in terms of Schedule 5 or not.
+So section 45 is not to be treated as relating to a reserved matter under section 29(4).
+In effect, the unless clause in section 29(4) allows the Scottish Parliament to make a general reform of Scottish private or criminal law, even though it modifies the law which applies to reserved matters.
+Again, this is not surprising since the United Kingdom Parliaments legislation on particular topics has always been framed and operated against the background of the general private and criminal law as it applies in the various jurisdictions from time to time.
+Equally, any reform of the general law has to take account of all the matters to which it actually applies.
+In agreement with all of your Lordships, I am therefore satisfied that section 45 of the 2007 Act is not outside the competence of the Scottish Parliament by reason of relating to a reserved matter.
+The question then arises: even though the purpose of section 45 is one that the Scottish Parliament can legitimately pursue, is the section nevertheless to some extent outside its competence because it is in breach of a restriction in para 2 of Part I of Schedule 4 to the 1998 Act? This question has to be addressed in stages.
+Does section 45 modify the law on a reserved matter?
+As already explained, under section 29(2)(c) of the 1998 Act, section 45 will be outside the competence of the Scottish Parliament so far as it breaches any of the restrictions in Schedule 4 to the 1998 Act.
+The relevant paragraphs for present purposes are paras 2 and 3.
+Paragraph 2 provides: (1) An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, the law on reserved matters. (2) In this paragraph, the law on reserved matters means (a) any enactment the subject matter of which is a reserved matter and which is comprised in an Act of Parliament or subordinate legislation under an Act of Parliament, and (b) any rule of law which is not contained in an enactment and the subject matter of which is a reserved matter, and in this sub paragraph Act of Parliament does not include this Act. (3) Sub paragraph (1) applies in relation to a rule of Scots private law or Scots criminal law (whether or not contained in an enactment) only to the extent that the rule in question is special to a reserved matter or the subject matter of the rule is (a) interest on sums due in respect of taxes or excise duties and refunds of such taxes or duties, or (b) the obligations, in relation to occupational or personal pension schemes, of the trustees or managers.
+At first sight, para 2(1) appears to impose a very drastic limit on the competence of the Scottish Parliament: an Act of the Parliament cannot modify (which includes amending or repealing section 126(1)) the law on reserved matters.
+If that were all that para 2 said, then it would prevent the Scottish Parliament from ever touching legislation on reserved matters even if the purpose of the provision related to a devolved matter.
+In effect, it would make section 29(2)(b) superfluous.
+But para 2(1) is actually qualified by para 2(3) and does not apply to modifications falling within the scope of para 3.
+Section 29(3) and (4) focus on the provision which is being enacted and on its purpose.
+By contrast, para 2 of Part I of Schedule 4 focuses on the rule of law that is being modified by the enactment and makes no mention whatever of the purpose of the modification.
+Paragraph 2(2)(a) defines the law on reserved matters as any enactment the subject matter of which is a reserved matter and which is comprised in an Act of Parliament or subordinate legislation under an Act of Parliament.
+As explained in para 95 above, the effect of para 1 and Section E1 of Part II of Schedule 5 to the 1998 Act is that the subject matter of the RTOA is a reserved matter.
+So the enactment comprising section 33 of, and the relevant entry in Part I of Schedule 2 to, that Act is part of the law on this reserved matter.
+This conclusion supports my earlier conclusion that these provisions are not provisions of Scots criminal law, as it applies to reserved matters in terms of section 29(4)(b).
+A provision cannot be both the law on a reserved matter and the law as it applies to the self same reserved matter.
+As I have already explained at para 110 above, section 45 of the 2007 Act undoubtedly purports to supersede and modify the enactment in section 33 of, and the relevant entry in Part I of Schedule 2 to, the RTOA.
+Therefore the power of the Scottish Parliament to enact section 45 for reserved statutes depends on whether the restriction in para 2(1) of Part I of Schedule 4 to the 1998 Act applies to the modification made by section 45.
+Does section 45 fall within para 3(1) of Part I of Schedule 4?
+In Logan v Harrower 2008 SLT 1049, 1054, at para 24, giving the opinion of the appeal court, Lord Nimmo Smith said this: While we were not fully addressed on the extent to which recourse may legitimately be had to extra statutory materials as an aid to the construction of a statutory provision such as section 45, in order to discover whether its purpose is such as to bring it within the proviso to section 29(4), it appears to us to be legitimate to have regard to the passages in the Policy Memorandum and Explanatory Notes, quoted above, which contain express statements about its purpose.
+From these it may be taken, as the advocate depute submitted, that the purpose and of the provision in section 45 of the 2007 Act is to increase generally the criminal sentencing powers of the sheriff, sitting as a court of summary jurisdiction, and that the provision, construed in this light, fulfils this purpose.
+We agree with the advocate depute that, in the present case, the purpose of the provision is to make Scots criminal law with regard to penalties, procedure and jurisdiction in the sheriff court apply consistently to both common law offences and statutory offences.
+As provided by paragraph 3 in Part I of Schedule 4 to the Scotland Act, the modifications made by section 45 of the 2007 Act to the reading of Part I of Schedule 2 to RTOA 1988 are merely incidental to, or consequential on, the more general aspect of the provision, which relates generally to the powers of the sheriff in relation to statutory offences, whatever their origin; and the modifications do not have a greater effect upon reserved matters than is necessary to give effect to the purpose of the provision in section 45.
+Lord Nimmo Smith had already explained, at para 22 of the courts opinion, that the argument before the court had centred on section 29(4) of the 1998 Act.
+And para 23 and the first three sentences of para 24 contain the reasoning by which the court concluded that section 45 of the 2007 Act was not to be treated as relating to reserved matters by reason of section 29(4).
+In the final sentence of para 24 the appeal court moved on to consider whether, nevertheless, section 45 was in breach of the restriction in para 2(1) of Part I of Schedule 4 to the 1998 Act.
+The court held that it was not on the view that the modifications made by section 45 of the 2007 Act to the reading of Part I of Schedule 2 to the RTOA are merely incidental to, or consequential on, the more general aspect of the provision, which relates generally to the powers of the sheriff in relation to statutory offences, whatever their origin.
+The appeal court had in mind para 3(1) of Part I of Schedule 4 which is set out in para 91 above.
+In other words, the court held that the modifications made by section 45 were incidental to, or consequential on, provision made which did not relate to reserved matters.
+So the prohibition in para 2(1) did not apply to those modifications.
+In my view the reasoning is unsound.
+I have already indicated, at paras 91 93 above, that para 3(1) appears to be intended to cover the kinds of minor modifications which are obviously necessary to give effect to a piece of devolved legislation, but which raise no separate issue of principle.
+Indeed the amendments to the RTOA replacing references to the district court with references to the justice of the peace court in para 7 of the Schedule to the 2007 Act are as good an example as any of minor consequential amendments to the law on reserved matters which para 3(1) of Part I of Schedule 4 to the 1998 Act permits the Scottish Parliament to make.
+In fact, para 444 of the Explanatory Notes says that Paragraph 7 is consequential upon the establishment of JP courts and inserts references to that court in place of the district court.
+But the modifications made by section 45 of the 2007 Act are of a completely different character and the draftsman clearly thought so, since they are effected not in the Schedule but by a separate section in the body of the Act.
+Section 45 is one of three sections (the others being 43 and 44) which combine to alter the jurisdiction of the sheriff sitting as a court of summary jurisdiction.
+None of the sections can be regarded as incidental to, or consequential on, another: they are all independent and deal with distinct aspects of the situation.
+Needless to say, the relevant paragraphs of the Explanatory Notes do not suggest that section 45 is to be regarded as merely consequential or incidental.
+Moreover, section 45 applies to any penalty provision in a relevant enactment which, by subsection (7), covers any Act passed before the 2007 Act.
+These are the words which bring in, for example, the RTOA.
+So the modifications of the law on reserved matters made by section 45 are effected by exactly the same words as the modifications of the law on devolved matters.
+Both sets of modifications play an equivalent part in the overall scheme the modifications to reserved penalty provisions are of no less importance than the modifications to devolved penalty provisions.
+Neither can be regarded as incidental to, or consequential on, the other.
+Despite this, in Logan v Harrower the appeal court considered that the modifications to the law in Part I of Schedule 2 to the RTOA were merely incidental to, or consequential on, the more general aspect of the provision, which relates generally to the powers of the sheriff in relation to statutory offences, whatever their origin.
+The reasoning is not easy to follow.
+It is enough, however, to observe that neither section 45 nor any other provision in the 2007 Act actually has any separate more general aspect relating generally to the powers of the sheriff in relation to statutory offences.
+So there is no separate devolved provision of that kind and, more particularly, no separate provision made which does not relate to reserved matters in relation to which the modifications to the RTOA made by section 45 could ever be regarded as incidental or consequential.
+For these reasons, like Lord Hope, I am satisfied that para 3(1) of Part I of Schedule 4 to the 1998 Act does not have the effect of preventing para 2 from applying to section 45 of the 2007 Act.
+It is therefore necessary to look at the qualification to para 2(1) which is to be found in para 2(3), and which the appeal court did not consider in Logan v Harrower because of their conclusion on para 3(1).
+Is the rule of law in the RTOA special to a reserved matter under para 2(3)?
+Unquestionably, section 33 of the RTOA and the relevant entry in Part I of Schedule 2 comprise a rule of Scots criminal law to the effect that, on a summary conviction of a contravention of section 103(1)(b) of the RTA, the maximum punishment by way of imprisonment which may be imposed on the offender is 6 months.
+That is the rule which section 45 purports to modify.
+Paragraph 2(1) of Part I of Schedule 4 prevents the Scottish Parliament from modifying a rule of Scots criminal law only to the extent that the rule is special to a reserved matter.
+So the Court has to decide whether this rule is special to a reserved matter.
+The advocate depute argued that the rule is not special to this reserved matter or indeed to any other reserved matter: the rule simply prescribes a maximum penalty of 6 months imprisonment for a conviction on summary complaint and that is a penalty that is found in many statutes, on both reserved and devolved matters.
+To be special, the penalty would have to be one that was not prescribed for an infringement of any statute dealing with a devolved matter.
+In theory, for instance, it would have applied if the unique penalty for an infringement of section 103(1)(b) of the RTA had been per impossibile say, whipping.
+Then, because that was a penalty which was found only within the sphere of reserved matters, the Scottish Parliament would be prevented from modifying it.
+It is fair, however, to say that the advocate depute was unable to point to any actual rule of Scottish criminal law or procedure to which, on his preferred construction, para 2(1) would apply.
+Although I was initially attracted by the advocate deputes argument, it cannot be right, since, on his construction, the limit makes no sense whatever.
+Why should the Scottish Parliaments power to modify an enactment whose subject matter is a reserved matter depend on whether there happens to be some comparable enactment dealing with a completely different devolved matter? More particularly, why should the Scottish Parliament be entitled to modify the maximum term of 6 months imprisonment on summary conviction of a contravention of section 103(1)(b) of the RTA in Part I of Schedule 2 to the RTOA simply because there happen to be a number of either way offences in the devolved area where the maximum term of imprisonment on summary conviction is also 6 months? Of course, the Parliament can alter the penalty provision for those offences because it is its business to make such amendments where appropriate.
+But that is, of itself, no reason why it should become the Scottish Parliaments business for whatever purpose to modify the penalty provision which Parliament has deliberately chosen to enact for a specific offence for which Parliament retains responsibility.
+The general point can be illustrated by reference to limitation periods.
+As Mr Johnston QC points out, in Prescription and Limitation (1999), Appendix II, p 371, the Prescription and Limitation (Scotland) Act 1973 (the 1973 Act) does not say that its provisions are not to apply where other enactments establish a prescriptive or limitation period for specific rights or remedies.
+Nevertheless, as he goes on to say, on general principles of statutory construction, it can be assumed that an enactment of a special nature takes precedence over an enactment of a general nature: the 1973 Act is therefore displaced by more specific provision in other enactments.
+Mr Johnston then gives a useful table listing a range of enactments which contain their own specific limitation periods.
+By contrast, there are many statutes which provide for civil liability but do not contain any separate, specific, provision on limitation of proceedings brought for their breach.
+For example, a breach of a duty under the Provision and Use of Work Equipment Regulations 1998 (No 2306) is actionable: section 42 of the Health and Safety Act 1974.
+But there is no special rule of law on the limitation of proceedings for such a breach: the general rule of law in the 1973 Act applies.
+Therefore, if the Scottish Parliament chose to alter that general rule in the 1973 Act, it could do so and the new period would apply to actions for breach of the Regulations.
+This is so, even though Part I of the Health and Safety Act is a reserved matter: para 1 and Section H2 of Part II of Schedule 5 to the 1998 Act.
+Many statutes do make special provision on limitation, however.
+For example, under section 568(5) of the Companies Act 2006, an action for loss suffered because of a contravention of the pre emption provision in a companys articles must be brought within 2 years.
+That is unquestionably the law on a reserved matter as defined in para 2(2) of Part I of Schedule 4 to the 1998 Act.
+It is surely unthinkable that, even as part of an exercise to tidy up the Scots law of limitation of actions, the Scottish Parliament would be able to alter that period, which is special in the sense that, instead of relying on the general law of limitation, Parliament has deliberately selected 2 years as being appropriate for proceedings of that particular kind.
+Leaving aside any other possible difficulties, if the Scottish Parliament could change the period, the result would be to introduce a difference between English and Scots law in an area where Parliament, legislating after devolution, must have considered that the same special rule should continue to apply in both jurisdictions.
+Equally surely, the power of the Scottish Parliament to alter the period in section 568(5) of the Companies Act could not be affected because, if you rooted around in the statute book, you could find that, under section 5 of the Limitations of Actions and Costs Act 1842, the limitation period for actions brought under local and personal Acts (which would, usually at least, concern devolved matters) happened also to be 2 years.
+Likewise, it would be irrational to conclude that, if the Scottish Parliament were to repeal or amend section 5 of the 1842 Act so that it no longer provided for a period of 2 years, this would somehow simultaneously remove a power which the Parliament had hitherto enjoyed to amend the limitation period under section 568(5) of the Companies Act 2006.
+Quite simply, the two enactments have nothing to do with one another.
+Conversely and reverting to penalties it would be absurd to hold that the Scottish Parliament could not modify a penalty provision so long as it was special to, in the sense of unique to, a reserved matter, but could give itself the power to do so by enacting the same penalty for a devolved matter.
+Besides being absurd, this would offend against the principle that the limits on the competence of the Scottish Parliament are fixed by the 1998 Act and cannot be altered except by new legislation by Parliament or by Order in Council under section 30(2).
+What, then, do the critical words mean? In my view, a statutory rule of law is special to a reserved matter if it has been specially, specifically, enacted to apply to the reserved matter in question as opposed to being a general rule of Scots private or criminal law which applies to, inter alia, a reserved matter.
+Only general rules whose subject matter is listed in sub paras (a) to (e) of para 2(3), as amended, are protected from modification.
+If interpreted in this way, para 2(3) means that para 2(1) prevents the Scottish Parliament from modifying any enactment which must be taken to reflect the conscious choice of Parliament to make special provision for the particular circumstances, rather than to rely on some general provision of Scottish private or criminal law.
+Whether or not to modify such an enactment involves questions of policy which must be left for the consideration of the United Kingdom government and Parliament which are responsible for the matter.
+On this interpretation, paras 2(1) and (3) place a comprehensible limit on what the Scottish Parliament can do.
+I return to the particular problem in these appeals.
+Suppose that, instead of increasing the maximum term of imprisonment available on summary conviction of a contravention of section 103(1)(b) of the RTA from 6 to 12 months, the Scottish Parliament had chosen to reduce it to 3 months perhaps as part of a general package of reductions in sentences designed to save money by cutting expenditure on criminal justice.
+The purpose of the legislation would plainly relate to a devolved matter.
+Nevertheless, the Scottish Parliament could not achieve that purpose by modifying the RTOA in that way because the maximum term of imprisonment on summary conviction of the offence had been specially chosen by Parliament.
+The modification would therefore be outside the competence of the Scottish Parliament by virtue of para 2 of Part I of Schedule 4.
+And it would rightly be outside competence because it would inevitably involve significant road traffic policy issues which, under the 1998 Act, it would be for the United Kingdom government (more particularly, the Secretary of State for Transport) and Parliament to evaluate.
+For instance, would it be acceptable if the average sentence for driving while disqualified fell because prosecutors were reluctant to mount the more complicated and time consuming sheriff and jury trials necessary to attract a prison sentence of more than 3 months? Would the potential cost cutting advantages of the policy outweigh this possible disadvantage? Mutatis mutandis, the Secretary of State for Transport and the United Kingdom government as a whole would have to consider these issues if the Ministry of Justice made an equivalent proposal for England and Wales.
+If they ultimately agreed, Parliament would be asked to legislate to amend the RTOA.
+In the case of Scotland, if the United Kingdom government and Parliament were content, the necessary changes could be made by a section 104 order.
+If a reduction in the maximum term of imprisonment on summary conviction would be outside the competence of the Scottish Parliament in this way, the same must apply to an increase.
+For these reasons I conclude that the rule of Scots criminal law prescribing the maximum term of imprisonment for a summary conviction of a contravention of section 103(1)(b) of the RTA, in Part I of Schedule 2 to the RTOA, is special to that reserved matter, in the sense that Parliament has chosen it specifically for that offence.
+So, by virtue of para 2(1) of Part I of Schedule 4 to the 1998 Act, the Scottish Parliament has no power to modify it.
+A majority of your Lordships have reached the opposite view.
+At para 34 of his judgment, Lord Hope accepts that, when considering para 2 of Part I of Schedule 4, the starting point is identifying the rule of Scots criminal law that is being modified.
+Then one must ask whether that rule is special to a reserved matter.
+Naturally, I agree.
+Lord Hope takes the view that the purpose of the enactment may be referred to in order to identify the rule of law that is being modified.
+I see no room for that approach in this case.
+Here, the purpose of the enactment is clear and undisputed: to increase the sheriffs summary sentencing powers.
+If, however, you want to know which rules of Scottish criminal law the enactment is modifying in order to achieve that purpose, you simply have to look at the perfectly clear terms of section 45 and apply them to the penal provisions in question.
+I agree with Lord Hope when he says, at paras 35 and 37, that the rule of Scots law as to the maximum term of imprisonment that can be imposed i e the maximum period of 12 months on indictment, set out in the relevant part of column 4 of the Schedule falls to be treated as a rule that is special to a reserved matter.
+I have explained my reasons for taking that view.
+These cannot, of course, be Lord Hopes reasons.
+But he gives no explanation for his view beyond the assertion that it plainly, is a rule which is special to the Road Traffic Acts and it is a reserved matter.
+In para 39 Lord Hope considers that it would be to carry the process of analysis too far to say that the Schedule contains two maximum sentences, one for summary proceedings and the other for proceedings on indictment.
+But that is precisely what Parliament does say in section 33(1) of the RTOA read together with the relevant entry in the Schedule (referring to the maximum punishment by way of imprisonment and giving different figures depending on the mode of trial).
+Lord Hope also thinks that it would be carrying the process of analysis too far to say that both of these maximum sentences are special.
+Apparently this is because such a decision depends on an exercise of judgment in which the purpose of the provision (here, section 45) may be the best guide.
+But, as the cross headings show, para 2 of Part I of Schedule 4 is designed to protect the law on reserved matters from modification.
+It is therefore necessary to identify which rules of Scots criminal law are to be regarded as special to a reserved matter in terms of para 2(3) and so protected from modification.
+Since, ex hypothesi, these rules cannot be modified, they cannot be identified by reference to the purpose of a provision which purports to modify them.
+In the end, therefore, all we know is that, for some unstated reason, the maximum sentence which can be imposed on conviction of a contravention of section 103(1)(b) of the RTA in a prosecution on indictment is a rule which is special to the Road Traffic Acts, but the maximum sentence which can be imposed for the same offence in a summary prosecution is not.
+In para 59 of his judgment Lord Walker identifies what the relevant rule of Scots criminal law to be modified is not: it is not that driving while disqualified is a criminal offence (agreed), nor that it is a criminal offence punishable by imprisonment (agreed), nor that the maximum term of imprisonment is 12 months (also agreed, since, again, this must be a reference to the maximum term of imprisonment in a prosecution on indictment).
+The inference seems to be that these rules might indeed be special to a reserved matter and beyond the reach of the Scottish Parliament.
+As Lord Walker says, however, all these rules have been left untouched.
+You then eagerly wait to hear about the rule that has not been left untouched: that the maximum term of imprisonment is 6 months in a summary prosecution.
+But you wait in vain.
+Instead, the rule to be modified turns out to be whether (and if so to what degree) the option of summary trial before the sheriff should reduce the maximum sentence that can be passed.
+With great respect, that does not really look much like a rule of Scots criminal law.
+But, whatever the description, it is actually the product of the two specific rules of Scots criminal law as to the maximum term of imprisonment for a contravention of section 103(1)(b) of the RTA in summary and indictment proceedings respectively.
+That product can itself be modified only by modifying either or both of these specific rules.
+By enacting section 45, the Scottish Parliament purported to modify the rule that the maximum term of imprisonment for this offence in summary proceedings is 6 months.
+The unavoidable question is whether that rule is special to a reserved matter in terms of para 2(3) of Part I of Schedule 4 to the 1998 Act.
+But that question is neither posed nor answered.
+Having bowed politely in the general direction of the argument, Lord Brown rests his conclusion on simple assertion.
+Until now, judges, lawyers and law students have had to try to work out what Parliament meant by a rule of Scots criminal law that is special to a reserved matter.
+That is, on any view, a difficult enough problem.
+Now, however, they must also try to work out what the Supreme Court means by these words.
+It is a new and intriguing mystery.
+Conclusion
+In my view, so far as it relates to the penalty provision in the RTOA relating to contraventions of section 103(1)(b) of the RTA, section 45 was outside the competence of the Scottish Parliament.
+There was, of course, nothing to prevent the Scottish Parliament from increasing the maximum term of imprisonment which a sheriff, sitting as a court of summary jurisdiction, could impose.
+That is what section 45(1) does and, by itself, the provision is unobjectionable since it merely deals with the jurisdiction of the sheriff.
+But any increase in jurisdiction brought about by section 45(1) would remain subject to all the penalty provisions in statutes which stipulate a lower maximum term of imprisonment on summary conviction.
+So subsection (2) was introduced in order to modify all those provisions.
+Modification of penal provisions in statutes falling within the devolved sphere causes no difficulty.
+But, for the reasons I have explained, modifying a specific penal provision in a statute within the reserved area is outside competence essentially, because it involves making a significant change to law which Parliament has decided is to be its own responsibility.
+Of course, it is true that the purpose of section 45 is to increase the sheriffs summary sentencing powers.
+That is why section 45 does not relate to reserved matters and so is not beyond the competence of the Scottish Parliament by virtue of section 29(2)(b).
+But a purpose of increasing the summary sentencing powers of sheriffs or other lower court judges is not a passport that entitles the Scottish Parliament to disregard the prohibitions in the other paragraphs of section 29(2) and to sweep aside any provision of the RTOA which stands in its way.
+The competent end does not justify the use of means which are beyond competence.
+If evidence to support that simple proposition were needed, it is to be found in the Criminal Proceedings etc (Reform) (Scotland) Act 2007 (Powers of District and JP Courts) Order 2007, which was made under section 104 of the 1998 Act shortly before the 2007 Act came into force.
+The order was not mentioned by counsel on either side.
+Its purpose was, first, to repeal the provisions of the RTOA which prevented the district court (and its successor, the justice of the peace court) from imposing the penalty of disqualification for traffic offences, and then to amend section 34 so as to include the district court (and, hence, the justice of the peace court) among the courts with the power to impose that penalty for such offences.
+Even though these changes were clearly part of the overall scheme in the 2007 Act, to allow the lower courts to hear more serious cases by increasing their sentencing powers, it was recognised that the section 104 order was needed to carry out this particular aspect of the scheme.
+By contrast, the minor consequential amendment to section 248C(1) of the 1995 Act, relating to the disqualification power for other offences, was made by section 80 of, and para 26 of the Schedule to, the 2007 Act.
+In order to achieve another part of the scheme to adjust the jurisdiction of the Scottish courts by increasing the sentencing powers of the lower courts, section 45 of the 2007 Act purports to modify, inter alia, the enactment relating to contraventions of section 103(1)(b) of the RTA in Part I of Schedule 2 to the (reserved) RTOA.
+As a result, the maximum term of imprisonment that can be imposed for that offence by a court of summary jurisdiction in Scotland is intended to be twice what can be imposed by the equivalent court in England.
+Of course, it is not essential that the two jurisdictions should march exactly in step on this matter as is plain from the availability of indictment proceedings with a maximum sentence of 12 months imprisonment in Scotland, but not in England.
+But that is a disparity which Parliament chose to introduce.
+Whether a further disparity between the jurisdictions should indeed be introduced is precisely the kind of issue like the issue as to whether the district court or justice of the peace court, rather than just the sheriff court, should have power to disqualify for road traffic offences which the 1998 Act intends that Parliament should decide.
+This need cause no difficulty for the Scottish Executives scheme to adjust the jurisdiction of the Scottish courts by increasing the sentencing powers of sheriffs in summary cases if the United Kingdom government and Parliament are content that the maximum available term of imprisonment for this offence on summary conviction should be increased in this way.
+Provided the draft is approved by both Houses of Parliament, the appropriate order can be made under section 104 of the 1998 Act: sections 114 and 115 and paras 2 and 3 of Schedule 7.
+This is indeed precisely the kind of situation for which section 104 was designed.
+Applying section 101 of the 1998 Act, I would therefore hold that the definition of relevant penalty provision in section 45(7) of the Criminal Proceedings etc (Reform) (Scotland) Act 2007 does not include a provision of a relevant enactment or instrument which is special to a reserved matter within the meaning of para 2(3) of Part I of Schedule 4 to the Scotland Act 1998.
+It follows that section 45 does not modify the maximum term of imprisonment of 6 months on summary conviction of a contravention of section 103(1)(b) of the Road Traffic Act 1988 in column 4 of Part I of Schedule 2 to the Road Traffic Offenders Act 1988.
+I would accordingly allow the appeals, pass the bills of suspension, quash the sentence imposed by the sheriff court in each case for the contravention of section 103(1)(b) of the Road Traffic Act 1988 and remit to the appeal court to proceed as accords.
+LORD KERR
+The legislative competence of the Scottish Parliament is self evidently a subject of fundamental importance.
+As the appeals in these cases amply demonstrate, however, it is impossible to devise a comprehensive charter which, for every conceivable situation, infallibly prescribes the limits of that legislatures enacting power.
+This, it seems to me, is the inevitable consequence of the transfer by the United Kingdom government of some or even many powers to a devolved administration while retaining or, as it is more usually put, reserving, certain other matters to Parliament in Westminster.
+Whether a particular Act of the Scottish Parliament falls within its legislative competence will, for the most part therefore, depend on a consideration of the particular provisions of the enactment in question.
+The quest will usually begin with section 29 of the Scotland Act 1998.
+It stipulates (in subsection (1)) that any provision of an Act of the Scottish Parliament is not law so far as it is outside the legislative competence of the Parliament.
+Subsection (2) (b) states that a provision is outside the competence of the Scottish Parliament if it relates to reserved matters.
+The issue as to whether a provision does so relate is to be determined in accordance with subsection (3) which, so far as is material, provides: the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (4), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.
+Subsection (3) has a number of component parts, each of which deserves careful consideration.
+The first is that which specifies that it is subject to subsection (4).
+This latter subsection (to which I shall turn presently) is a deeming provision designed to expand the category of cases in which a change in the law is to be considered to relate to reserved matters because it modifies Scots private or criminal law as it applies to reserved matters.
+The need to enlarge the group in this way appears to me to clearly indicate that the construction to be placed on the expression relates to reserved matters must be suitably restrained.
+If, in every instance where a provision of the Scottish Parliament touched on a reserved matter, it was to be considered to relate to a reserved matter, subsection (4) would not be needed.
+The phrase needs a more careful and restricted application, therefore.
+Guidance as to the extent of the restriction is provided by the next component part of section 29 (3).
+The resolution of the question whether a particular provision relates to a reserved matter is to be determined by reference to the purpose of the provision.
+One is immediately thereby drawn to an examination of the objective of the legislation and of the particular provision within it.
+Before dealing with the result of that examination, it is useful to note the next component part of subsection (3).
+It is to the effect that the determination (by reference to its purpose) whether an Act of the Scottish Parliament relates to a reserved matter is to be conducted having regard to (among other things) its effect in all the circumstances.
+It seems to me obvious that the way in which the subsection is structured signifies that the effect of the provision is subordinate to its purpose in the inquiry as to whether it relates to a reserved matter.
+Indeed, the assessment of the effect of the provision is directly linked to the search for its purpose.
+This is unsurprising.
+As Lord Brown pointed out in the course of argument, one will customarily expect that the purpose of a particular provision is to bring about a desired effect.
+The other things, apart from the effect of the provision, which are to be taken into account in ascertaining its purpose are not specified in subsection (3).
+Mr Brown on behalf of the appellant, Mr Miller, accepted (sensibly and correctly, in my view) that these would include statements by those responsible for the legislation which purported to identify the reasons for its enactment.
+The genesis of the legislation under challenge here is the report of the Committee appointed in November 2001 to review summary justice in Scotland under the chairmanship of Sheriff Principal John McInnes QC.
+The formal remit of the Committee was stated to be: To review the provision of summary justice in Scotland, including the structures and procedures of the sheriff courts and district courts as they relate to summary business and the inter relation between the two levels of court, and to make recommendations for the more efficient and effective delivery of summary justice in Scotland.
+In paragraph 9 of its summary of recommendations the Committee recorded its proposal that the criminal jurisdiction for judges in summary cases should be a maximum 12 months detention or imprisonment and a 20,000 fine.
+The reasons for this particular recommendation are discussed throughout the report.
+In paragraph 7.72 on page 78 at paragraph (iv) it is explained that the view of the majority of the Committee was that there was a need to relieve pressure on the higher courts.
+This required the lower courts to take on more serious cases.
+Consequently, some increase in sentencing powers for the judges in those courts was required.
+The Committee recognised that recommending an increase in the sentencing powers of the courts of summary jurisdiction could give rise to what is described in the report as sentence drift, that is a tendency to increase the normal sentencing range because of the availability of the increase in the statutory maxima.
+It made clear its express disavowal of any intention to bring about sentence drift in paragraph 7.89 of the report where the following appears: In proposing an increase in sentencing powers, we are clear that we do not intend any uplift of the going rate for all offences, but rather we wish to extend the range of offences that can appropriately be dealt with in the summary courts.
+The Ministerial response to the McInnes recommendations was contained in a report entitled, Smarter Justice, Safer Communities Summary Justice Reform published in March 2005.
+In paragraph 4.10 the Scottish Executive signalled its acceptance of the proposal that there be an increase in the sentencing powers of a sheriff sitting without a jury in summary proceedings, stating that this form of proceeding was generally simpler and faster than trials in a solemn court.
+The report also acknowledged the concern that there might be upward sentence drift but recorded the Committees finding that there was no evidence that this was linked to an increase of sentencing powers in summary proceedings (para 4.51).
+The Bill which was to give effect to the recommendations of the McInnes Committee (among other matters), the Criminal Proceedings etc. (Reform) (Scotland) Bill, was introduced to the Scottish Parliament on 27 February 2006.
+Clause 35, which became section 45 of the enacted legislation, dealt with certain statutory offences (including driving whilst disqualified) and provided for a new maximum term of imprisonment of twelve months to which a person summarily convicted of such an offence would be liable.
+The Bill was considered by the Justice 1 Committee of the Scottish Parliament on 19 April 2006.
+In answer to a question from a member of the Justice Committee concerning the possibility of an increase in the prison population because of the enlarged sentencing powers of the sheriff courts in summary proceedings, Noel Rehfisch of the Scottish Executive Justice Department said this, at Scottish Parliament Official Report, cols 2838 2839: it is clear that the intention of the changes is not to be more punitive in respect of any particular offence.
+For example, for any statutory offence that can be tried only summarily at present, the sentencing limit will not change.
+The increase to 12 months is about providing headroom in the summary system to deal with slightly more serious cases that, in the view of the McInnes Committee which ministers accepted could relevantly, competently and capably be dealt with in the sheriff summary court.
+On two occasions in recent years there have been increases in the maximum sentencing level in the sheriff solemn courts.
+The same sheriffs, albeit with a jury, are responsible for determining sentences in those cases.
+To date, there is no evidence that those increases have led to what might popularly be described as sentence drift.
+We are confident that the judiciary will continue to consider individual cases on their merits.
+The measures are about having the appropriate level of business in certain sectors of the system.
+These comments were reflected in the 10th report of the Justice 1 Committee published on 5 July 2006.
+At paragraph 135 of the report the following appears: In oral evidence Executive officials stated that these provisions are about seeking some form of business redistribution to ensure that every level of the system deals with the business that it ought to deal with and managing that as effectively as possible.
+Indeed, in the Policy Memorandum [containing the Executives comments on the provisions of the Bill], the Executive refers to its policy of creating a flexible court capacity to ensure that cases can be dealt with quickly and at the appropriate level. and at paragraph 136: The Executives expectation is that this redistribution of cases would represent a downward shift of around 500 to 550 cases per year from sheriff and jury to sheriff summary procedure.
+The Executive has also stated that the provisions in the Bill are not designed to be more punitive in relation to any particular offences.
+The Scottish Prison Service referred in oral evidence to its view that it does not expect the Bill to have a significant impact on the prison population.
+It appears to me from all this material that the purpose of section 45 of the 2007 Act is unmistakably clear.
+As the advocate depute submitted, it is to effect a reallocation of business within the court structure.
+The means by which this is achieved is an increase in the sentencing powers available to sheriffs sitting in their summary jurisdiction.
+The greater maximum penalty is not an end in itself nor is it intended that that the going rate for relevant offences should be increased.
+This is merely the mechanism by which the quite different purpose of providing for a more expeditious dispatch of business can be achieved.
+This conclusion is reinforced by the consideration that defendants charged with relevant offences are not exposed to a greater penalty in the summary proceedings than they formerly faced if prosecuted for the same offences on indictment.
+In this context, I should say that I consider that the analogy which the appellants sought to draw with the decision of the Divisional Court in Northern Ireland in the case of Reg (Hume) v Londonderry Justices [1972] N. I. 91 is misconceived.
+In that case the Parliament of Northern Ireland, in exercise of its powers under section 4 of the Government of Ireland Act 1920 to make laws for the peace, order and good government of Northern Ireland, had purported (by a regulation made in a statutory rule and order by the Minister of Home Affairs) to authorise certain members of Her Majestys forces to require an assembly of persons to disperse if a breach of the peace was apprehended.
+The Divisional Court held that the regulation was made in breach of section 4 (3) of the 1920 Act which forbade the making of laws by the Northern Ireland Parliament in respect of Her Majestys forces.
+It had been argued on behalf of the respondent that the pith and substance of the regulation was the peace, order and good government of Northern Ireland and that the conferring of powers on members of the armed forces was merely incidental.
+This argument was rejected, Lowry LCJ observing (at page 111) that both the object and the method of achieving it must be valid.
+Since the method in that case had been expressly forbidden, the regulation could not be rescued from its invalidity because it was for a permitted object.
+By contrast, in the present case the method (enlargement of the sentencing powers in sheriff summary proceedings) of achieving the object (the more efficient and expeditious prosecution of offences) is not expressly forbidden.
+For these reasons, and for the reasons more fully given by Lord Hope and Lord Rodger, I am therefore satisfied that section 45 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007 does not relate to reserved matters within the meaning to be ascribed to that condition in section 29 (2) (b) of the Scotland Act 1998.
+I turn to briefly consider section 29 (4).
+It provides: (4) A provision which (a) would otherwise not relate to reserved matters, but (b) makes modifications of Scots private law, or Scots criminal law, as it applies to reserved matters, is to be treated as relating to reserved matters unless the purpose of the provision is to make the law in question apply consistently to reserved matters and otherwise.
+As I have already observed, this is a deeming provision which expands the category of cases in which a change in the law is to be considered to relate to reserved matters, although not so relating for the purposes of section 29 (3).
+Modifications of Scots private or criminal law are to be treated as relating to reserved matters subject to two important qualifications.
+The first of these is that such modifications are confined to the law as it applies to reserved matters.
+The advocate depute argued that section 45 of the 2007 Act modified Scots criminal law generally and on that account could not be said to apply solely to reserved matters.
+It appears to me, however, that this first qualification is not designed to exclude from the ambit of section 29 (4) modifications that relate to both reserved and devolved matters.
+It was suggested in argument that the purpose of the provision was to prevent the Scottish legislature from targeting reserved matters.
+This may well be correct but that objective is likely to be severely curtailed if a measure of the Scottish Parliament applying to reserved and devolved measures which were unrelated to each other was exempt from the reach of section 29 (4) and it appears to me that this must be the logical conclusion of the advocate deputes argument.
+A final determination of this issue is not, in my opinion, strictly necessary, however, because it is quite clear that the impugned legislation comes squarely within the second qualification in section 29 (4).
+A provision, the purpose of which is to make the law apply consistently to reserved matters and otherwise, is not caught by the subsection.
+It is unquestionably clear that section 45 of the 2007 Act has that precise purpose and for that reason it does not come within section 29 (4).
+The final and, to my mind, most troubling issue arises from section 29 (2) (c) of the 1998 Act.
+It states that a provision is outside the competence of the Scottish Parliament if it is in breach of the restrictions in Schedule 4 to the Act.
+Paragraph 2 of that Schedule contains the following material provisions: (1) An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, the law on reserved matters. (2) In this paragraph, the law on reserved matters means (a) any enactment the subject matter of which is a reserved matter and which is comprised in an Act of Parliament or subordinate legislation under an Act of Parliament, and (b) any rule of law which is not contained in an enactment and the subject matter of which is a reserved matter, and in this sub paragraph Act of Parliament does not include this Act. (3) Sub paragraph (1) applies in relation to a rule of Scots private law or Scots criminal law (whether or not contained in an enactment) only to the extent that the rule in question is special to a reserved matter .
+Section 45 of the 2007 Act self evidently relates to a rule of Scottish criminal law.
+Is the rule special to a reserved matter? Lord Hope has concluded that the rule is not special to a reserved matter because it does not increase the penalty that can be imposed in respect of the offence but has merely changed the procedural route by which the enlarged penalty can be imposed.
+It is concerned with a rule of procedure that applies generally to prosecutions for offences in the sheriff court.
+On this analysis, section 45 is not to be regarded as directed to a rule which is special to a reserved matter.
+By contrast, Lord Rodger considers that a statutory rule is special to a reserved matter if it has been enacted in order to apply specifically to the rule in question.
+I have not found it easy to reach a view as to which of these competing and persuasively argued positions is to be preferred.
+It is clear that paragraph 2 (3) contemplates an ambit or scope of application for a particular rule beyond its possible impact on reserved matters.
+It is only on the extent to which the application of the rule is special to reserved matters that the denial of legislative competence is engaged.
+In this context, special to may be regarded as connoting having a specific effect on reserved matters.
+Where an act of the Scottish Parliament seeks to modify a rule of Scots law which has an effect on reserved matters that act will be outside the legislative competence of the Scottish Parliament.
+But where the rule of Scots law being modified is not special to reserved matters, Parliaments legislative power remains intact.
+Viewing the effect of the provision in this way, I have concluded that where an act of the Scottish Parliament modifies a statutory rule which has a specific effect on a reserved matter it comes within the prohibition contained in paragraph 2 (1) of Schedule 4 to the 1998 Act.
+I therefore agree with Lord Rodger that section 45 is caught by that paragraph.
+The question then arises whether the section can be saved by recourse to paragraph 3 of Schedule 4 to the 1998 Act which provides: (1) Paragraph 2 does not apply to modifications which are incidental to, or consequential on, provision made (whether by virtue of the Act in question or another enactment) which does not relate to reserved matters, and do not have greater effect on reserved matters than is necessary to give effect to the purpose of the provision.
+Both Lord Hope and Lord Rodger have concluded that a statutory provision that alters the sentencing power of the sheriff court sitting in its summary jurisdiction cannot be regarded as coming within this provision.
+Although I was initially attracted by the notion that the increase in sentencing powers was incidental to a provision being made for the reallocation of court business, I have come to the view that this cannot be right.
+The increase in sentencing powers is the provision concerned.
+It is not incidental to another permissible statutory rule.
+It cannot be saved by paragraph 3, therefore.
+In the result, I agree with Lord Rodger that this appeal should be allowed.
diff --git a/UK-Abs/test-data/judgement/uksc-2009-0129.txt b/UK-Abs/test-data/judgement/uksc-2009-0129.txt
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+On 9 September 2004 the appellant, Steven Allison, was convicted after trial in the High Court at Glasgow of four contraventions of section 4(3)(b) of the Misuse of Drugs Act 1971.
+In effect, he was found guilty of being concerned in the supplying of cocaine and three other controlled drugs at his home in Cumbernauld, at an address in Falkirk and elsewhere in the United Kingdom, between 12 November and 3 December 2003.
+The trial judge, Lord Bracadale, sentenced him to 8 years imprisonment.
+The appellant appealed against both his conviction and sentence.
+On 7 November 2008 the appeal court (Lord Osborne, Lady Paton and Lord Philip) refused his appeal against conviction, leaving his appeal against sentence to be heard on a date to be fixed.
+Among his grounds of appeal against conviction was one which was first advanced in an additional Note of Appeal.
+It relates to the record of a police interview of a John Stronach.
+Mr Stronach had died before the trial and the Crown introduced the interview into evidence in accordance with the procedure in section 259(5) of the Criminal Procedure (Scotland) Act 1995.
+Neither before nor during the trial did the Crown disclose to the defence that Mr Stronach had a number of previous convictions and outstanding charges.
+In particular, he had convictions for reset, theft by opening lockfast places, assault and robbery and assault and breach of the peace.
+He also had a number of outstanding charges, including two alleged contraventions of the Misuse of Drugs Act 1971, an alleged theft by housebreaking and several alleged contraventions of the Road Traffic Act 1988.
+One of the outstanding cases under the Misuse of Drugs Act related to events covered by the trial and was known to the appellants legal advisers.
+The Crown disclosed the previous convictions and the other outstanding charges only while the appellants appeal was pending before the appeal court.
+This prompted the appellant to lodge his additional ground of appeal: The failure on the part of the Crown to disclose to the defence the existence of all the previous convictions and outstanding charges resulted in the defence being unable to prepare and properly conduct their defence and the result was that the appellant did not receive a fair trial, as guaranteed by article 6(1) of the European Convention on Human Rights.
+Following the dismissal of his appeal by the appeal court, the appellant applied for leave to appeal to the Privy Council in relation to the additional ground of appeal.
+On 6 March 2009 the appeal court (Lord Osborne, Lady Paton and Lord Mackay of Drumadoon) refused the application as incompetent, on the ground that no intimation of a devolution issue had been given to the Advocate General as required by para 5 of Schedule 6 to the Scotland Act 1998.
+The court went on to indicate that, if it had been open to them to grant or refuse leave, they would not have granted leave.
+The appellant subsequently applied to the Privy Council for special leave to appeal.
+The Board granted special leave.
+Although the statement of facts and issues included an issue relating to the competency of the appeal courts decision to refuse leave, neither the advocate depute nor the Advocate General advanced any argument on the point at the hearing of the appeal.
+Undoubtedly, when the appeal court determined that the Lord Advocate was not under an obligation by virtue of article 6(1) of the European Convention to disclose the outstanding charges against Mr Stronach, they were in substance determining a devolution issue in terms of para 1(d) or (e) of Part I of Schedule 6 to the Scotland Act 1998 irrespective of whether all the relevant procedural steps had been followed.
+It follows, as was held in McDonald v HM Advocate 2008 SLT 993, 1002, paras 48 and 49, that an appeal on that point lies to this Court under para 13(a) of Part II of that Schedule.
+Of course, the late Mr Stronachs name was never included in the list of Crown witnesses appended to the indictment for the appellants trial which may help to explain why the need to disclose his criminal antecedents was overlooked.
+But, when dismissing the appellants appeal, the appeal court rightly accepted, under reference to Holland v HM Advocate 2005 1 SC (PC) 3, 24, para 72, that the failure by the Crown to disclose Mr Stronachs previous convictions had been incompatible with the appellants article 6(1) Convention rights.
+Despite the further conclusion of the Privy Council in Holland, at pp 24 25, paras 73 74, that the Crown were also under an obligation to disclose material outstanding charges of which they were aware, the appeal court in the present case drew a distinction between Mr Stronachs previous convictions and his outstanding cases at the time of the trial by which the court obviously meant the charges against him which had been outstanding at the time of his death.
+The court continued: We consider that, in this context, a distinction has to be made between previous convictions and outstanding cases.
+While, in appropriate circumstances, the existence of previous convictions may be of importance in connection with the preparation of a defence and to the challenge that may be mounted to the credibility of a witness, we do not consider that the same may be said of outstanding cases.
+Where an individual is charged with crime, he or she is presumed to be innocent until proved guilty.
+If a case is outstanding, necessarily no verdict has been reached in it.
+In these circumstances we have insuperable difficulty in understanding how information relating to those matters could be properly deployed in the conduct of a defence.
+Previous generations of Scots lawyers and judges do not appear to have
+experienced the same insuperable difficulty as the appeal court.
+It is, of course, trite that an individual charged with crime is presumed to be innocent until proved guilty.
+But that is not to say that he has to be treated in all respects as if he were an innocent person against whom no charge had been brought.
+Most obviously, in an appropriate case, he can be remanded in custody pending trial or granted bail subject to appropriate conditions.
+Similarly, depending on the offence and the terms of his contract of employment, he may be suspended from his employment.
+More generally, if you know that someone has been charged with, say, fraud, you will be less inclined to enter into a commercial transaction with him; if you know that someone has been charged with sexual abuse, you will think twice before entrusting your children to her care; if you know that someone has been charged with theft, you will be less inclined to trust anything which he tells you, unless it can be confirmed from other sources.
+The Privy Councils decision in Holland, that the Crown should disclose outstanding charges of Crown witnesses of which they were aware, simply reflected the common sense position that just as in everyday life judges or jurors who have to assess the credibility of a witness may properly take into account not only the fact that the witness has been convicted of various offences, but also the fact that he has been charged with others.
+To judge from the passage quoted in para 7 above, the appeal court seem to have thought that this was an unprincipled and incoherent innovation.
+It is noteworthy that they did not refer to any authority.
+In reality, the approach of the Privy Council, in so far as it proceeds on the basis that outstanding charges may have a bearing on a witnesss credibility, merely reflects what appears to have been recognised as the proper practice in Scottish courts for more than 170 years.
+At one time, in Scots law anyone convicted of serious crimes became technically infamous (infamis) and was thereafter unable to give evidence at any trial.
+By the early nineteenth century this rule was proving self defeating for the authorities: all too often it was a gift to the defence since it prevented the only material witnesses to crimes from giving evidence.
+So the rule was first relaxed and then eventually abolished.
+The only explicit authority relating to a witness with outstanding charges comes from that era.
+At a High Court trial at Dumfries, when leading a Crown witness, William Higgins, the advocate depute began by establishing that he was due to be tried at the same circuit on a charge of theft by housebreaking, aggravated by his having been previously convicted of theft and being a thief by habit and repute.
+See John Hannah and Hugh Higgins, 17 September 1836, Bells Notes, p 256, in the Supplement to Humes Commentaries on the Law of Scotland respecting Crimes (1844 edition), vol 2.
+Since the court ruled on the admissibility of the advocate deputes line of questioning, the defence must have objected that the Crown were, in effect, leading a witness who, if convicted of the crime in question at his trial later in the sitting, would then be unable to testify.
+The court rejected the argument and allowed the question.
+As the author of the Notes, Sheriff Bell, comments, The court, however, in allowing the question, must have thought it relevant to affect the credit of the witness.
+The potential relevance of outstanding charges to the credibility of a witness appears to have been settled in the nineteenth century.
+See, for instance, Dicksons Treatise on the Law of Evidence in Scotland (revised edition, 1887) vol 2, para 1619.
+Most significantly, Macdonalds Criminal Law of Scotland (3rd edition, 1894), p 462, says: Nor may [a witness] refuse to say whether he has been convicted of or stands indicted for a crime.
+This passage appears in virtually the same words in the fifth and final edition (1948), pp 297 298.
+The passage could never have stood unchallenged in successive editions of the traditional vademecum of Scottish criminal practitioners and judges if it had not reflected practice in the courts.
+Not surprisingly, therefore, neither the advocate depute nor the Advocate General supported the approach of the appeal court in the present case.
+In Holland v HM Advocate 2005 1 SC (PC) 3 the appellant was convicted of a charge of assault and robbery at a house in Rutherglen.
+The Crown failed to disclose that there were outstanding charges against the complainers, relating to drug dealing at the house in question.
+The Privy Council held, at p 25, para 75, that information about these charges would have helped to complete the picture both of the complainers and of their milieu.
+In other words, it would have had the potential to weaken the Crown case and so it should have been disclosed.
+In his written submissions in the present appeal, the advocate depute gave examples of other situations where an outstanding charge against a Crown witness might materially weaken the Crown case or strengthen the defence case: if the witness denied he had ever been in trouble with the police, an outstanding charge could legitimately be put to him; similarly an outstanding charge might provide a potential motive for the witness giving untrue information in an attempt to curry favour with the authorities.
+It is unnecessary to prolong the discussion since the Crown did not deny that the outstanding charges against Mr Stronach might have weakened the Crown case by casting doubt on his character or credibility.
+It follows that, in accordance with Holland v HM Advocate 2005 1 SC (PC) 3 and HM Advocate v Murtagh 2009 SLT 1060, the failure of the Crown to disclose the outstanding charges to the defence was indeed incompatible with the appellants article 6(1) Convention rights.
+At the hearing of the appeal, all this really went without saying and the only live issue was the actual significance, in the whole circumstances of the case, of the Crowns failure to disclose the charges.
+The appeal court did not consider that matter, but they did, of course, consider the effect of the Crowns failure to disclose his previous convictions.
+Having considered the circumstances, the appeal court were not persuaded that the failure of the Crown to disclose the previous convictions of Stronach to the appellants advisers resulted in an unfair trial and hence a miscarriage of justice.
+They accordingly rejected the appellants appeal, so far as based on the Crowns failure to disclose Mr Stronachs previous convictions.
+Standing that decision, at the hearing before this Court, Mr Jackson QC, who appeared for the appellant, had to argue that the failure to disclose Mr Stronachs outstanding charges made a significant difference.
+In other words, the Court should conclude that there would have been a real possibility of a different outcome if the jury had been made aware, not only of Mr Stronachs previous convictions, but of the outstanding charges against him: in that event, the jury might reasonably have come to a different view as to whether the appellant was concerned in the supplying of the various drugs during the relevant period.
+The case against the appellant was circumstantial.
+It comprised, for the most part, evidence of observations by police officers who had conducted a surveillance operation over several weeks.
+The evidence relating to Mr Stronachs statement concerned events of 24 November 2003.
+DS Duncan Smith was not otherwise involved in the relevant events.
+He gave evidence that, at about 12.45 pm on 24 November, when checking an address, he saw a blue Peugeot, registration number M810 UEW, parked at the appellants home at 58 Whitelees Road, Cumbernauld.
+At 9.32 pm Mr Stronach was seen driving the Peugeot to a service station at Kilmarnock where he met up with a Ford Orion.
+The two cars drove in convoy to Logan, near Cumnock.
+There, in the car park of the Logangate Arms, the driver of the Orion spoke to Mr Stronach who did not leave his car.
+Mr Stronach then drove up to Glasgow and on to the M8 where he was stopped by two police officers.
+A Farm Foods bag, found in the glove compartment of the Peugeot, contained cocaine worth at least 30,000.
+The police interviewed Mr Stronach on tape in the early hours of 25 November.
+This is the interview which is the subject of the additional ground of appeal.
+The tape recording of the entire interview was played to the jury during the evidence of DC McFadden.
+In the course of the interview Mr Stronach said that he had been sent by a man called Stevie from Abronhill to sell the car.
+The appellants first name is Steven and his home was in the Abronhill district of Cumbernauld.
+The description of Stevie given by Mr Stronach fitted the appellant.
+On 27 November the appellant left his home and drove to the house of Mr Stronachs girlfriend in Denny.
+He then took Mr Stronachs passport to Airdrie Sheriff Court where it was used in connexion with his application for bail.
+A receipt for the passport from the court dated 27 November was recovered from the appellants home.
+Defence counsel took DC McFadden through the transcript of the interview in detail and was able to show that Mr Stronach had told many lies.
+When he came to address the jury, the advocate depute accepted that he had clearly lied about his movements and about his involvement in drugs.
+But the advocate depute suggested to the jury that it would be easier to accept those parts of the interview which were supported by other acceptable evidence.
+In particular, he pointed to the evidence of DS Smith, who was not otherwise involved in the investigation, that the Peugeot which Mr Stronach was driving when stopped by the police had been parked outside the appellants house earlier the same day.
+The advocate depute also referred to the evidence about the appellant collecting Mr Stronachs passport from his girlfriends house and taking it to Airdrie Sheriff Court in connexion with his application for bail on the drugs charges arising out of the recovery of the cocaine from the Peugeot.
+The advocate depute argued that it would be a spectacular coincidence if this did not indicate that the appellant knew of Mr Stronachs involvement with drugs.
+summarised the position in this way: In his supplementary report to the appeal court, Lord Bracadale, Taking into account the analysis of the interview of Mr Stronach carried out by [defence counsel] and the concessions made as to his credibility by the advocate depute, the jury would have been most likely to conclude that Mr Stronach did indeed tell many lies in the course of the interview.
+They would, however, have been entitled to be selective in their view of the evidence of Mr Stronach.
+Lord Bracadale then referred to Mr Stronachs previous convictions and added: In the circumstances outlined above it is difficult to see how the canvassing of the previous convictions of Mr Stronach before the jury would have bolstered the already largely successful attack on his credibility.
+It is also difficult to see why knowledge of the previous convictions would have discouraged the jury from being selective in the approach to the contents of the interview of Mr Stronach.
+Against that background, the appeal court were not persuaded that the failure of the Crown to disclose Mr Stronachs previous convictions resulted in an unfair trial and hence a miscarriage of justice.
+For exactly the same reasons, I am not persuaded that, if defence counsel had been able to deploy Mr Stronachs outstanding charges as well as his previous convictions, this would have made any material difference.
+More especially, it would not have affected the fact that the jury, who must have been well aware of the defects in Mr Stronachs statements, could still, with equal plausibility, have accepted those elements, and only those elements, in Mr Stronachs account which were corroborated by other acceptable evidence.
+I am accordingly satisfied that there is no real possibility that the jury would have come to a different verdict on the four charges against the appellant if they had been made aware, not only of Mr Stronachs previous convictions, but of the outstanding charges against him as well.
+There has therefore been no miscarriage of justice.
+I would accordingly dismiss Mr Allisons appeal and remit the case to the appeal court to proceed as accords.
+LORD HOPE
+make the same order as he proposes.
+The point of principle which this case raises is whether a failure to disclose outstanding charges against a Crown witness is incompatible with the accuseds article 6(1) Convention rights.
+Had it not been for the passage in the opinion of the appeal court which Lord Rodger has quoted in para 7 of his judgment, I would not have thought that there was now any room for dispute on the point.
+In McDonald v HM Advocate [2008] UKPC 46. 2008 SLT 993, para 51 Lord Rodger said that the decisions of the Board in Holland v HM Advocate [2005] UKPC D 1, 2005 SC (PC) 3 and Sinclair v HM Advocate [2005] UKPC D 2, 2005 SC (PC) 28 had answered this question.
+Included within the general description of disclosable material are two classes of material, namely police statements of any witnesses on the Crown list and the previous convictions and outstanding charges relating to those witnesses.
+I agree with Lord Rodger that the appeal must be dismissed, and I would
+The rule of law on which that classification is based is that of fairness.
+In McLeod v HM Advocate (No 2) 1998 JC 67, Lord Justice General Rodger said that our system of criminal procedure proceeds on the basis that the Crown have a duty at any time to disclose to the defence information which would tend to exculpate the accused.
+In Sinclair v HM Advocate, para 33 I said that the prosecution is under a duty to disclose to the defence all material evidence in its possession for or against the accused, and that for this purpose any evidence which would tend to undermine the prosecution case or to assist the case for the defence is to be taken as material.
+Sometimes the proposition is worded differently.
+In HM Advocate v McDonald [2008] UKPC 46, 2008 SLT 993, para 50 Lord Rodger said: Put shortly, the Crown must disclose any statement of other material of which it is aware and which either materially weakens the Crown case or materially strengthens the defence case (disclosable material) Lord Bingham of Cornhill used the same formula when describing the golden rule in R v H and others [2004] UKHL 3, [2004] 2 AC 134, para 14 when he said: Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence.
+In HM Advocate v Murtagh [2009] UKPC 36, 2009 SLT 1060, para 11, I said, under reference to McLeod, Holland, Sinclair and McDonald, that it was well settled that the Crown must disclose any statements or other material of which it is aware which either materially weakens the Crown case or materially strengthens the case for the defence: see also Lord Rodger, para 48.
+These formulations should however be regarded as expressing what has been described as the golden rule in shorthand.
+After all, they are describing a decision about disclosure which must normally be taken before the trial.
+It is a decision which will be based on an assumption as to what may happen in the future.
+So the question the Crown must ask itself is what the possible effect would be likely to be if the material were to be disclosed.
+As I said in R v Brown (Winston) [1998] AC 367, 374, it would be contrary to the principle of fairness for the prosecution to withhold from the defendant material which might undermine their case against him or which might assist his defence.
+Lord Collins, referring to what I said in that case, also used the word might" in Murtagh, para 75.
+That is the way Lord Rodger has expressed the position that the Crown has adopted in this case in para 14, above, and I respectfully agree with it.
+As for the point that troubled the appeal court, it is true that a distinction can be drawn between previous convictions and outstanding charges.
+But that does not mean that it can be assumed that information about outstanding charges of Crown witnesses can never affect their credibility.
+It is enough, for the disclosure rule to apply to them as a class, that they might do so.
+Of course the person concerned is presumed to be innocent until proved guilty.
+But if he is asked the question whether he has ever been in trouble with the police, he must answer it.
+A false or evasive answer might well be thought by a jury to undermine his credibility.
+Other circumstances may be envisaged where the fact that charges have been brought against the witness may have that effect.
+The application of the rule to outstanding charges, as the Crown accepts, is really just based on common sense and every day experience.
+No one should now be in any doubt that the disclosure rule applies to them, or as to the reasons why this is so.
+LORD WALKER
+that he gives I would dismiss this appeal.
+I am in full agreement with the judgment of Lord Rodger.
+For the reasons I agree with the judgment of Lord Rodger and, for the reasons that he gives, I agree with the judgment of Lord Rodger and, for the reasons that he gives,
+LORD BROWN
+I too would dismiss this appeal.
+LORD KERR
+I too would dismiss this appeal.
diff --git a/UK-Abs/test-data/judgement/uksc-2009-0152.txt b/UK-Abs/test-data/judgement/uksc-2009-0152.txt
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@@ -0,0 +1,175 @@
+The claimant, Declan OByrne, was vaccinated on 3 November 1992 with an HIB vaccine (the Product).
+He alleges that the Product was defective and that it caused him brain damage.
+The vaccine in question was manufactured in France by a French company, now known as Aventis Pasteur SA (APSA).
+On 18 September 1992 APSA sent a consignment of the vaccine, including the Product, to a company, now known as Aventis Pasteur MSD Ltd (APMSD), in England.
+At all relevant times in 1992 APMSD was a wholly owned subsidiary of APSA and acted as a United Kingdom distributor for APSAs products.
+APMSD received the consignment on 22 September.
+On an unknown date, probably in late September or early October, APMSD sold part of the consignment, including the Product, to the Department of Health, which in turn supplied it to the medical practice which used it to vaccinate the claimant.
+On 1 August 2001 the claimant began proceedings for damages against APMSD, alleging that he had suffered damage caused by a defect in the Product which APMSD had manufactured and/or produced and so it was liable under section 2 of the Consumer Protection Act 1987.
+In its defence, served in November 2001, APMSD pointed out that it was not the manufacturer, but merely the distributor, of the Product.
+In response to a further request, in April 2002 APMSD identified APSA as the manufacturer of the Product.
+On 16 October 2002 the claimant issued separate proceedings against APSA, also under section 2 of the Consumer Protection Act, alleging that APSA was the producer of the Product and claiming damages against it.
+APSA defended the action on the basis, inter alia, that it had put the Product into circulation either on 18 September 1992, when it sent the Product to APMSD, or on 22 September 1992 when APMSD received it.
+APSA contended that, in these circumstances, the claimants action against it was time barred since it had been raised more than 10 years after APSA had put the Product into circulation.
+In advancing this defence, APSA relied on section 11A(3) of the Limitation Act 1980 and Article 11 of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (OJ 1985 L210, p 29) (the Directive), which provides: Member States shall provide in their legislation that the rights conferred upon the injured person pursuant to this Directive shall be extinguished upon the expiry of a period of ten years from the date on which the producer put into circulation the actual product which caused the damage, unless the injured person has in the meantime instituted proceedings against the producer.
+Faced with this defence in his action against APSA, in his action against APMSD with which this appeal is concerned the claimant applied on 10 March 2003 for an order that APSA be substituted as defendant in place of APMSD.
+The application was based on section 35(5)(b) and (6)(a) of the Limitation Act 1980 and rule 19.5(3)(a) of the CPR.
+It is, of course, common ground that the application was made after the expiry of the ten year time limit under Article 11 for initiating proceedings against the producer of the Product.
+In these circumstances APSA contended that, in so far as English law might permit APSA to be substituted after the expiry of the time limit, it was inconsistent with Article 11.
+By contrast, the claimant contended that provisions of domestic law permitting this substitution would not be inconsistent with Article 11.
+In November 2003, at the request of both parties, the High Court made a preliminary reference to the European Court of Justice.
+The European Court answered three questions: OByrne v Sanofi Pasteur MSD Ltd (formerly Aventis Pasteur MSD Ltd) (Case C 127/04) [2006] 1 WLR 1606.
+One of the questions concerned the point in time at which a product was put into circulation for purposes of Article 11 in a situation where the producer which manufactured it then transferred it to a distribution subsidiary.
+I quote and discuss the European Courts ruling on this point at paras 20 23 below.
+concerned, the European Court held, [2006] 1 WLR 1606, 1622: So far as the power to substitute one producer for another as defendant was When an action is brought against a company mistakenly considered to be the producer of a product whereas, in reality, it was manufactured by another company, it is as a rule for national law to determine the conditions in accordance with which one party may be substituted for another in the context of such an action.
+A national court examining the conditions governing such a substitution must, however, ensure that due regard is had to the personal scope of Directive 85/374, as established by Articles 1 and 3 thereof.
+In the light of this answer, Teare J allowed the claimants application for substitution of APSA in place of APSMD, pursuant to section 35(5)(b) and (6)(a) of the Limitation Act 1980 and rule 19.5(3)(a) of the CPR, on the ground that the claimant had named APMSD as the defendant in mistake for APSA: OByrne v Aventis Pasteur MSD Ltd [2007] 1 WLR 757.
+APSA appealed, but the Court of Appeal (Sir Anthony Clarke MR, Arden and Moore Bick LJJ) [2008] 1 WLR 1188 dismissed its appeal.
+The House of Lords granted APSA leave to appeal.
+At the hearing of the appeal a majority of the appellate committee considered that it was clear that the European Court was saying that, in some circumstances, proceedings, which are obviously intended to be proceedings against the producer but which use the wrong name, can properly be treated by national procedural law as having been proceedings against the producer.
+The majority considered that this would have been the proper approach in the circumstances in the present case and so they would have dismissed APSAs appeal.
+But, because this was not the unanimous view of the appellate committee as to the effect of the judgment of the European Court, the House of Lords referred the case to Luxembourg for a second time: [2008] 4 All ER 881.
+The decision on this reference was given by the Grand Chamber: Aventis Pasteur SA v OB (Case C 358/08) (unreported) given 2 December 2009.
+The answer returned by the European Court in response to the second reference is not in line with either of the interpretations of its judgment on the first reference which had been advanced before the appellate committee.
+Happily, however, this time the core answer could not be clearer: Article 11 of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products must be interpreted as precluding national legislation, which allows the substitution of one defendant for another during proceedings, from being applied in a way which permits a producer, within the meaning of Article 3 of that directive, to be sued, after the expiry of the period prescribed by that article, as defendant in proceedings brought within that period against another person.
+Putting the point shortly and subject to the important qualification which I must address in a moment the Court of Justice holds that, once ten years have passed since a producer put a product into circulation, that producer cannot be sued, unless proceedings have been taken against it within the ten year period.
+As the Court explains, at para 38 of its judgment, Article 11: provides for a uniform 10 year period after which those rights are extinguished.
+It fixes, in a binding manner, the starting point of that period as the date on which the producer put into circulation the product which caused the damage.
+It specifies the institution of proceedings against that producer as the only reason for that period to be interrupted.
+It follows, as the Court says at para 44, that a rule of national law which allows the substitution of one defendant for another during proceedings cannot, under Directive 85/374, be applied in a way which permits such a producer to be sued, after the expiry of that period, as defendant in proceedings brought within that period against another person.
+As it explained in paras 41 43 of its judgment, the Court adopted this approach because, in its view, it gave effect to the balance which the Community legislator had intended to achieve between the interests of consumers and producers: 41.
+Pursuant to the 11th recital in the preamble to Directive 85/374, the latter seeks, second, to limit, at Community level, the liability of the producer to a reasonable length of time, having regard to the gradual ageing of products, the increasing strictness of safety standards and the constant progressions in the state of science and technology. 42.
+As is stated by the Advocate General in points 49 and 50 of her Opinion, the Community legislatures intention to limit in time the no fault liability established by Directive 85/374 is also intended to take account of the fact that that liability represents, for the producer, a greater burden than under a traditional system of liability, so as not to restrict technical progress and to maintain the possibility of insuring against risks connected with that specific liability (see, to that effect, paragraph 3.2.4 of the Report from the Commission of 31 January 2001 on the Application of Directive 85/374 on Liability for Defective Products, COM (2000) 893 final). 43.
+It follows that, without prejudice to the possible application of the rules on contractual or non contractual liability or a special liability system existing at the moment when Directive 85/374 was notified, the application of which is not prejudiced by the latter, as is apparent from Article 13 thereof and the 13th recital in the preamble thereto, the producer, as defined in Article 3 of that directive, is, under Article 11 of that directive, relieved of his liability under that article upon the expiry of a period of 10 years from the putting into circulation of the product in question, unless, in the meantime, proceedings have been instituted against him.
+The European Court also went out of its way, at para 48, to emphasise that it made no difference if the failure to sue a particular producer within the relevant ten year period had been due to some mistake on the claimants part.
+Even in that event what mattered was that the ten years had expired without that producer having been sued.
+So it could not be substituted as defendant after the ten years were up: 48.
+It should also be added that subjective elements deriving, for example, from the wrongful attribution, by the injured person, of the status of manufacturer of the allegedly defective product to a company which is not the manufacturer, or from the injured persons genuine intention to proceed against that manufacturer by way of its action against such other company, cannot, without infringing the objective dimension of the harmonisation rules laid down by Directive 85/374, justify the substitution, after the expiry of the 10 year period set out in Article 11 thereof, of that manufacturer in proceedings initiated during that period against another person (see, to that effect, OByrne, paragraph 26 and, by analogy, Case C 51/05 P Commission v Cantina sociale di Dolianova and Others [2008] ECR I 5341, paragraphs 59 to 63).
+In these circumstances the claimant now accepts that he cannot use section 35 of the Limitation Act 1980 as a basis for substituting APSA for APMSD as the defendant in the present proceedings.
+The claimant submits, however, that, even though he cannot make the substitution on the basis of his mistake, the European Court indicated in its judgment a different basis on which he can actually make the desired substitution.
+For this purpose he relies on the second answer which the Court of Justice gave on the second reference: However, first, Article 11 must be interpreted as not precluding a national court from holding that, in the proceedings instituted within the period prescribed by that article against the wholly owned subsidiary of the producer, within the meaning of Article 3(1) of Directive 85/374, that producer can be substituted for that subsidiary if that court finds that the putting into circulation of the product in question was, in fact, determined by that producer.
+In short, the claimant submits that the position falls within the terms of this qualification to the European Courts core answer on the effect of Article 11 and so there is nothing to prevent him from substituting APSA for APMSD on this basis.
+APSA contends, however, that this passage in the Courts judgment has to be interpreted in the context of the judgment as a whole and in the light of the Opinion of Advocate General Trstenjak, 8 September 2009, unreported, which preceded it.
+When that is done, APSA says, it can be seen that the qualification should be given a narrower interpretation, which would not allow substitution in this case.
+As will become apparent, in a case like the present, the possibility of substitution depends, to some extent, on various matters of fact concerning the relationship between the two entities.
+At the hearing before this Court, however, on the basis of what he now knows about the facts, the claimants counsel, Mr Maskrey QC, accepted that, if the Court were to conclude that APSAs interpretation of the European Courts judgment was correct, then its appeal against its substitution for APMSD should be allowed.
+The dispute between the parties turns, therefore, on the interpretation of paras 49 53 of the judgment of the European Court on the second reference: 49.
+In light of the foregoing, Article 11 of Directive 85/374 must be interpreted as precluding national legislation which allows the substitution of one defendant for another during proceedings from being applied in a way which permits a producer, within the meaning of Article 3 of that directive, to be sued, after the expiry of the period prescribed by that article, as defendant in proceedings brought within that period against another person. 50.
+However, the Court, giving a preliminary ruling on a reference, has jurisdiction, in the light of the information in the case file, to give clarifications to guide the referring court in giving judgment in the main proceedings (see, to that effect, Case C 366/98 Geffroy [2000] ECR I 6579, paragraph 20, and Case C 446/07 Severi [2009] ECR I 0000, paragraph 60). 51.
+It should be noted in that regard, first, that it is apparent from the reference for a preliminary ruling that APMSD (formerly Mrieux UK), which in 1992 supplied the vaccine which was administered to OB to the United Kingdom Department of Health, was, at that time, a wholly owned subsidiary of APSA (formerly Pasteur Mrieux). 52.
+In such a context, it is for the national court, in accordance with the applicable rules of national law on matters of proof, to assess whether the putting into circulation of the product in question was, in fact, determined by the parent company which manufactured it. 53.
+Where the national court notes that fact, Article 11 of Directive 85/374 does not preclude that court from holding that, in the proceedings instigated within the period prescribed by that article against the subsidiary under the system of liability laid down by that directive, the parent company, producer within the meaning of Article 3(1) of that directive, can be substituted for that subsidiary.
+Under reference to its reasoning in paras 34 48, in para 49 the European Court gave its core ruling on the construction of Article 11, which I have already discussed.
+The Court then went on, in the subsequent paragraphs, to give some additional guidance which it considered might be helpful to any domestic judges who were going to be dealing with this particular case.
+There is nothing, however, to suggest that, in these paragraphs, the Court was intending to depart from the principled approach which it had just been at such pains to develop and finally to formulate in para 49.
+What the Court says in paras 50 54 must therefore be read in the light of that core decision.
+In other words, the Court is explaining how that decision may fall to be applied, depending on the domestic courts assessment of the practical relationship between the manufacturer, APSA, and the distributor, APMSD.
+In venturing to give this additional assistance the European Court was following the lead of the Advocate General.
+Although the structure of her Opinion makes for repetition, it is clear that she, too, had concluded that only the bringing of proceedings against the particular producer could stop the Article 11 time bar from taking effect ten years after the producer had put the relevant product into circulation.
+See, in particular, paras 61 and 69 78 of her Opinion.
+So, in reaching its conclusion in para 49 of its judgment, the Court was following this aspect of the Advocate Generals reasoning.
+The Advocate General went on to hold, at para 68, that a substitution of the producer as a defendant when he has been released by the expiry of the ten year limitation period is equally incompatible with the Directive.
+She gave her reasoning for this conclusion at para 79, where she said that to allow the substitution of a producer against which proceedings had not been taken within the ten year period in place of a producer against which they had been taken would de facto be capable of also interrupting the limitation period in relation to producers.
+The upper temporal limit of liability for producers in Article 11 would thereby be broken through, and that is excluded in the light of the complete harmonisation of the field which is the aim of Directive 85/374.
+So, when reaching the comparable conclusion at paras 44 47 of its judgment, the European Court was, again, following the Advocate Generals approach.
+The Advocate General also gave some thought to how Article 11, thus interpreted, should be applied in a case, like the present, where the parent manufacturing producer (APSA) transferred the Product to a distributor (APMSD) which was its wholly owned subsidiary.
+In this connexion the Advocate General referred back to the judgment of the European Court on the first reference: OByrne v Sanofi Pasteur MSD Ltd (formerly Aventis Pasteur MSD Ltd) [2006] 1 WLR 1606.
+The first ruling in that judgment, at p 1622, had been in these terms: Article 11 of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products is to be interpreted as meaning that a product is put into circulation when it is taken out of the manufacturing process operated by the producer and enters a marketing process in the form in which it is offered to the public in order to be used or consumed.
+This conclusion reflects what the Court says in para 27 of its judgment, which is, in turn, based on its reasoning in the preceding paras 20 26.
+Paragraphs 27 32, [2006] 1 WLR 1606, 1620 1621, are of importance in the present context: 27.
+In light of those considerations, a product must be considered as having been put into circulation, within the meaning of Article 11 of the Directive, when it leaves the production process operated by the producer and enters a marketing process in the form in which it is offered to the public in order to be used or consumed. 28.
+Generally, it is not important in that regard that the product is sold directly by the producer to the user or to the consumer or that that sale is carried out as part of a distribution process involving one or more operators, such as that envisaged in Article 3(3) of the Directive. 29.
+When one of the links in the distribution chain is closely connected to the producer, for example, in the case of a wholly owned subsidiary of the latter, it is necessary to establish whether it is a consequence of that link that that entity is in reality involved in the manufacturing process of the product concerned. 30.
+The examination of such a close relationship must not be influenced by the question whether or not distinct legal persons are involved.
+On the other hand it is of relevance whether those are companies carrying out different production activities or are, on the contrary, companies one of which, ie the subsidiary company, acts simply as a distributor or depository for the product manufactured by the parent company.
+It is for the national courts to establish, having regard to the circumstances of each case and the factual situation of the matter before them, whether the links between the producer and another entity are so close that the concept of producer within the meaning of Articles 7 and 11 of the Directive also includes that latter entity and that the transfer of the product from one to the other of those entities does not amount to putting it into circulation within the meaning of those provisions. 31.
+In any case, contrary to what is maintained by the defendants, the fact that the products are invoiced to a subsidiary company and that the latter, like any purchaser, pays the price, is not conclusive.
+The same applies to the question of knowing which entity is to be considered as owner of the products. 32.
+Therefore the reply to the first question must be that Article 11 of the Directive is to be interpreted as meaning that a product is put into circulation when it is taken out of the manufacturing process operated by the producer and enters a marketing process in the form in which it is offered to the public in order to be used or consumed.
+As can be seen from para 31 of the European Courts judgment, in the first reference APSA which naturally wanted to push the starting date for the ten year period back as far as possible was arguing that it had put the Product into circulation when it transferred the consignment containing the Product to APMSD in the period of 18 to 22 September 1992.
+In support of that argument APSA was pointing to the fact that APMSD had been invoiced for the consignment and had paid for it.
+The claimants counsel, who was, of course, contending for as late a date as possible for the Product being put into circulation, was contending that this had not happened until APMSD supplied it to the Department of Health.
+The European Court rejected any approach that was based on the formal legal relationship between the parent manufacturing producer and the subsidiary distributor.
+In particular, the Court emphasised, at para 30, that the fact that the manufacturer and the distributor were distinct legal entities was irrelevant.
+The national court had to look at all the links between the two entities and decide on that basis whether they were so close that, for the purposes of Article 11, the concept of the manufacturing producer (which would apply to APSA) really included the distributor (in this case, APMSD).
+In that event, even if the Product were transferred from one to the other, this would not mean that it had been taken out of the manufacturing process operated by the producer.
+So, applying the test in para 27 of that judgment, for the purposes of Article 11 the Product would not have been put into circulation by the manufacturing producer when it transferred it to the distributor.
+Obviously, the Courts concern was that, unless this were indeed the position, at least in the case of products with a long shelf life, by the time they were eventually put on the market by the distributor, a significant part of the ten year period for proceedings against the manufacturing producer might have elapsed.
+This would upset the balance which the Directive sought to maintain between the interests of the consumer and the producer.
+In paras 83 90 of her Opinion on the second reference, the Advocate General did indeed make use of this part of the Courts analysis in the first reference when considering how the domestic court might determine the date at which the Product was put into circulation.
+But she also used it for the rather different purpose of showing when a distribution subsidiary could be so closely involved with the parent producer that they could, in effect, be regarded as one for the purposes of Article 11.
+In that event, suing the subsidiary would be tantamount to suing the parent.
+In concrete terms, if that were the position in this case, by suing APMSD within the ten year period, the claimant would also have sued APSA within that period.
+So the Article 11 time bar would not bite and the claimant could, if he wished, substitute APSA for APMSD as defendant in the present action or, indeed, simply proceed with his (second) action against APSA.
+The Advocate Generals reasoning and conclusions on these matters are to be found in paras 109 113 of her Opinion: 109.
+If, by contrast, the national courts were to reach the conclusion in the main proceedings that a supplier such as APMSD was, because of its involvement in the manufacturing process operated by APSA, to be regarded together with APSA as a producer within the meaning of the first half of Article 3(1) of Directive 85/374, the bringing of proceedings in due time against APMSD would indeed have the effect of interrupting the limitation period in relation to APSA. 110.
+The decisive point here is the fact that a supplier who is sufficiently closely involved in the manufacturing process operated by the producer is to be classified together with the producer as a producer within the meaning of the first half of Article 3(1) of the directive.
+Because those two entities are to be regarded, in the light of the functional interpretation of the concept of producer, as one producer within the meaning of the first half of Article 3(1), the limitation period must also run in the same way for both entities. 111.
+In this connection the Court in OByrne, after carefully weighing up the interests of consumers and producers, synchronised the starting point of the 10 year limitation period under Article 11 of Directive 85/374 for the producer stricto sensu and the supplier who forms part of the manufacturing process by reference to the date on which the supplier puts the product into circulation.
+In the context of the same balancing of interests, the running of the limitation period must also be uniform. 112.
+Since the running of the limitation period under Article 11 of the directive is interrupted only by the bringing of proceedings, a uniform limitation period for the producer and supplier who are to be regarded together as a producer within the meaning of the first half of Article 3(1) presupposes that the bringing of proceedings against the supplier interrupts the running of the 10 year limitation period not only in relation to that supplier but also in relation to the producer in whose manufacturing process the supplier is involved. 113.
+Accordingly, my conclusion is that classification to be assessed by the national courts of the supplier of a product as its producer has the consequence that that supplier is liable under Article 1 of the directive for the damage caused by a defect in the product, regardless of whether he is classified as a producer within the meaning of Article 3(1) or a producer within the meaning of Article 3(3) of the directive.
+Classification of a supplier as a producer within the meaning of the first half of Article 3(1) of the directive has the further consequence that the 10 year limitation period for the producer in whose manufacturing process the supplier is involved does not start to run until the time when the supplier puts the product into circulation.
+At the same time, proceedings brought against that supplier will in that case interrupt the running of the limitation period under Article 11 of the directive in relation also to the producer in whose manufacturing process the supplier is involved.
+In the summary which she gives in para 115, the Advocate General repeats the conclusion which she reaches in para 113.
+Two points stand out.
+First, the Advocate Generals conclusion in paras 113 and 115 involves no departure from the principle that the Article 11 time bar can only be interrupted by bringing proceedings against the producer concerned.
+Secondly, when she contemplates the domestic court classifying a supplier as a producer within the meaning of Article 3(1), she contemplates the domestic court applying the approach of the European Court in its judgment on the first reference: OByrne v Sanofi Pasteur MSD Ltd (formerly Aventis Pasteur MSD Ltd) [2006] 1 WLR 1606.
+And as the Advocate General recalls at paras 111 and 113 according to that judgment, where the supplier forms part of the manufacturing process, the starting point of the ten year limitation period under Article 11 is fixed by reference to the date on which the supplier puts the product into circulation.
+Indeed, in the proceedings on the first reference, the claimant fought successfully to establish exactly that point.
+With this background in mind, it is appropriate to return to paras 51 and 52 of the European Courts judgment on the second reference: 51.
+It should be noted in that regard, first, that it is apparent from the reference for a preliminary ruling that APMSD (formerly Mrieux UK), which in 1992 supplied the vaccine which was administered to OB to the United Kingdom Department of Health, was, at that time, a wholly owned subsidiary of APSA (formerly Pasteur Mrieux). 52.
+In such a context, it is for the national court, in accordance with the applicable rules of national law on matters of proof, to assess whether the putting into circulation of the product in question was, in fact, determined by the parent company which manufactured it.
+It is correct to say that, unlike the Advocate General, the European Court does not actually refer to its answer to the first question on the first reference.
+But there is nothing whatever to suggest that it intended to depart in any way from that analysis.
+The assumption must therefore be that it falls to be applied where appropriate.
+Certainly, the Court supplies no alternative or additional theoretical analysis which could displace or supplement it.
+The European Court is concerned to show how the principle which it has just laid down would apply in relation to the substitution of APSA for APMSD.
+Certainly, to judge by the Advocate Generals analysis and there is no rival the only way in which that principle could be maintained and yet APSA could be substituted for APMSD, would be if, by suing APMSD, the claimant had, in effect, sued APSA.
+So the Court must be pointing the domestic court to the way in which it should approach that issue.
+Mr Maskrey argued, however, that the position was really much simpler.
+As the European Court noted, at para 51, APMSD was a wholly owned subsidiary of APSA.
+Secondly, APSA had determined that the Product should be put into circulation by transferring it to its wholly owned subsidiary, APMSD, and it had then in fact transferred the product to the subsidiary.
+So the requirements of paras 51 and 52 were fulfilled and the substitution could be made.
+I would reject that argument.
+As counsel freely admitted, this argument runs completely counter to the one which the claimant advanced on the first reference.
+That is, of course, merely a forensic point.
+More significantly, the argument is internally incoherent as well as being inconsistent with the reasoning of the Court of Justice.
+If, as counsel now contends, APSA put the Product into circulation when it supplied it to APMSD, then, consistently with the Courts ruling on the first reference, this can only be because the two companies are to be regarded as having operated quite distinctly so that the Product was taken out of the manufacturing process operated by APSA when it was transferred to APMSD.
+But the fact that APMSD was a wholly owned subsidiary of APSA, which the Court began by noting in para 51, could not be a pointer towards that conclusion.
+If anything, it would point against it.
+So, on this interpretation, the European Court could have had no reason to draw attention to the status of APMSD.
+Yet it did.
+Mr Maskrey criticised APSAs interpretation of para 52 on the specific ground that it involved reading in three words: whether the putting into circulation of the product in question by the supplier, was, in fact, determined by the parent company which manufactured it.
+Mr Leggatt QC accepted that this was, in effect, how he contended that the sentence should be interpreted.
+In my view, that is indeed the correct interpretation.
+The European Courts reference to APMSD being a wholly owned subsidiary of APSA is only consistent with it directing attention to factors which may point to a close connexion between the two companies.
+Given the context of the discussion (seeing whether proceedings against APMSD count as proceedings against APSA), that is precisely what we would expect.
+For the reasons already given, we should also expect the focus to be on the time when the Product was supplied by APMSD to the Department of Health, since, if APMSD was, in effect, tied into the manufacturing process of APSA, the Product would only be put into circulation when it was supplied by APMSD.
+And that is what we find in para 51 where the European Court refers to APMSDs status as a wholly owned subsidiary at the time when it supplied the Product to the Department of Health.
+Therefore, in para 52 the Court must indeed be referring to the Product being put into circulation by the supplier at the behest of its parent.
+That interpretation is also consistent, of course, with what the Advocate General says in paras 111 and 113 of her Opinion on the second reference (quoted at para 24 above).
+This interpretation of para 52 is also consistent with its language, both in the English version and in the original French (si la mise en circulation du produit concern a t dtermine en fait par la socit mre qui la fabriqu).
+The European Court is plainly contemplating a situation where, to all outward appearances, a supplier has decided to put a product into circulation.
+The domestic court must look at the circumstances to see whether, despite appearances, in fact, it was the manufacturing parent company which had determined that the product should be put into circulation.
+If, by contrast, the European Court had meant what Mr Maskrey suggested, it would have had no reason to use this language: all it would have required to say was that the national court was to assess whether the parent company, which manufactured the product, transferred it to its wholly owned subsidiary, the distributor.
+The further difficulty with that interpretation is, of course, that everyone agrees that APSA sent the consignment containing the Product to APMSD on 18 September and that APMSD received it on 22 September.
+There would therefore be nothing for the domestic court to assess.
+The European Court was therefore indicating, in para 52, that the domestic court was to consider, in accordance with domestic rules of proof, whether the manufacturer, APSA, was in fact controlling APMSD and determining when it put the Product into circulation.
+There is nothing in the judgment of the European Court on either reference to suggest that the fact that APMSD was a wholly owned subsidiary of APSA could somehow, of itself, be a reason for allowing APSA to be substituted after the expiry of the ten year period.
+Indeed, that would be inconsistent with the two companies being distinct entities.
+Rather, the fact that APMSD was a wholly owned subsidiary was simply one by no means decisive factor to be taken into account by the domestic court when assessing how closely the subsidiary was involved with its parents business as an Article 3(1) producer.
+All the circumstances would have to be taken into account.
+If APSA was indeed in a position to decide when the Product was to be distributed, then APMSD would be integrated into the manufacturing process and so tightly controlled by APSA that proceedings against APMSD could properly be regarded as proceedings against the parent company, APSA.
+Hence, as the European Court goes on to hold in para 53, the manufacturing parent company could be substituted for the subsidiary APSA for APMSD.
+Mr Maskrey submitted that, if the European Courts judgment were interpreted in this way, then it would allow substitution of the parent producer only where the supplier could, in any event, itself be sued as a producer falling within the definition in Article 3(1).
+But that is, of course, precisely what the Advocate General does say in paras 113 and 115 of her Opinion.
+Moreover, the criticism seems a little ungenerous.
+It is, after all, the claimant who, for what must presumably appear to him to be good reasons, wishes to substitute APSA for APMSD as the defendant.
+The Advocate General and the Court are merely responding to that situation by pointing to circumstances where it might indeed be possible for the claimant to do so.
+It is, of course, the case that, in any such circumstances, the claimant will also be able to sue the supplier as a producer within the terms of Article 3(1).
+But that is not a criticism of the approach taken by the Advocate General or the Court.
+If a claimant will gain nothing by suing the manufacturer in substitution for the supplier, he will presumably not try to do so.
+But such a course might have advantages if, say, the supplier were insolvent.
+The Advocate General and the European Court were entitled to assume that, in this case, the claimant had what he regarded as good reasons for wishing to make the substitution.
+For these reasons, I would allow the appeal and set aside paragraph 1 of the order of Teare J dated 20 October 2006 substituting Aventis Pasteur SA for Aventis Pasteur MSD in the present action, HQ02X00848.
diff --git a/UK-Abs/test-data/judgement/uksc-2009-0167.txt b/UK-Abs/test-data/judgement/uksc-2009-0167.txt
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+provides as follows: 15.
+Registration of Greens Section 15 of the Commons Act 2006, so far as relevant to this appeal, (1) Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsection (2), (3) or (4) applies. (2) This subsection applies where (a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; and (b) they continue to do so at the time of the application. (4) This subsection applies (subject to subsection (5)) where (a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; (b) they ceased to do so before the commencement of this section; and (c) the application is made within the period of five years beginning with the cessation referred to in paragraph (b). (7) For the purposes of subsection (2)(b) in a case where the condition in subsection (2)(a) is satisfied (a) where persons indulge as of right in lawful sports and pastimes immediately before access to the land is prohibited as specified in subsection (6), those persons are to be regarded as continuing so to indulge; and (b) where permission is granted in respect of use of the land for the purposes of lawful sports and pastimes, the permission is to be disregarded in determining whether persons continue to indulge in lawful sports and pastimes on the land as of right.
+The application relevant to this appeal was expressed to be made under section 15(4).
+It was suggested in argument that (because of the deeming provision in subsection (7)) it was also, or alternatively, made under subsection (2).
+In any case it was a valid application, and neither subsection (5) nor subsection (6) is in point.
+The issue
+The general issue for the Court is whether a piece of open land next to the sea in Redcar ought to have been registered as a town green under section 15.
+For at least 80 years before 2002 the land in question (the disputed land) formed part of a golf course in regular use by members of the Cleveland Golf Club, whose trustees were tenants of the course.
+The inspector who held a public inquiry found as a fact that when local residents using the disputed land for recreation encountered members of the golf club playing golf, the former deferred to the latter.
+In these circumstances the legal issue for the Court can be more particularly stated as whether the legal consequence of this deference was that the local residents were not indulging in recreation as of right within the meaning of the Commons Act 2006.
+During the last decade there have been three important decisions of the House of Lords dealing with different aspects of the law (as it stood before the Commons Act 2006) as to town and village greens: R v Oxfordshire County Council Ex p Sunningwell Parish Council [2000] 1 AC 335 (Sunningwell); R(Beresford) v Sunderland City Council [2003] UKHL 60, [2004] 1 AC 889 (Beresford); and Oxfordshire County Council v Oxford City Council [2006] UKHL 25, [2006] 2 AC 674 (Oxfordshire).
+In none of these appeals did the House of Lords have to decide the point now at issue, although both sides have placed reliance on some passages in their Lordships opinions.
+The Commons Act 2006 (which is still not fully in force) makes important changes in the law, but does not directly affect the issue of deference.
+The facts
+The appellant, Mr Kevin Lewis, is one of five local residents who made the application for registration of the disputed land under section 15 of the Commons Act 2006.
+The first respondent, Redcar and Cleveland Borough Council, has a dual capacity, being both the registration authority and the freehold owner of the disputed land.
+The second respondent, Persimmon Homes (Teesside) Ltd is an interested party.
+It has since 2003 been the Borough Councils development partner in the Coatham Links coastal regeneration project.
+The project is for a mixed development for residential and leisure purposes on a site extending to 14 hectares.
+The disputed land forms an important, and possibly indispensable, part of the development site.
+The appeal is therefore of great importance to the parties, as well as raising a point of law of general public interest.
+Redcar is on the south side of the Tees estuary.
+The disputed land is part of an area known as Coatham Common or Coatham Links (Coatham was originally a separate village but is now part of Redcar).
+On the south (landward) side of the disputed land there is a mainly residential area.
+To the east is the site of the former club house and a leisure centre (the club house site is not included in the disputed land but was included in the earlier application mentioned below).
+To the west is more open land still used as a golf course.
+To the north is the beach and the North Sea.
+The disputed land formerly included the tees, fairways and greens of the first and eighteenth holes, and a small practice area.
+The inspectors report dated 14 March 2006 described the boundaries in more detail and contained (paras 6 and 7) this further description of the disputed land (referred to as the Report Land): The character of the Report Land is typical of coastal sand dunes, with irregular sand hills covered in rough grass.
+The dunes are noticeably higher on the northern side.
+There is a flatter area along the southern side, particularly west of the Church Street access.
+The former tees, greens and fairways of the golf course are no longer obvious.
+The Report Land is crossed by numerous informal paths of which the most well used run alongside and close to the southern and northern boundaries.
+A number of photographs show the general nature of the land.
+There are some fairly new signs erected by [the Borough Council] on the Report Land.
+The gist of the signs is that they give the public temporary permission to use the Report Land for recreation pending its redevelopment.
+I call these signs the permissive signs.
+The footpath near the southern boundary is a public footpath.
+Mr Lewis and his fellow applicants applied for registration of the disputed land on 8 June 2007, soon after section 15 of the Commons Act 2006 had come into force on 5 April 2007.
+It was not the first application that had been made in respect of the disputed land.
+An earlier application had been made by another group of local residents on 1 March 2005.
+It was therefore considered under the earlier law, that is the Commons Registration Act 1965 as amended by the Countryside and Rights of Way Act 2000.
+This earlier application was the subject of a public inquiry held by Mr Vivian Chapman QC as an inspector appointed by the Borough Council as registration authority.
+The inquiry was held over several days in December 2005 and January 2006.
+Mr Chapman produced a lengthy report dated 14 March 2006 recommending that the application should be refused, and the Borough Council accepted his recommendation.
+An application for leave for judicial review of that decision was refused on the papers by Collins J on 22 August 2006 and was not renewed.
+When the second application was made in 2007 it was rightly thought that it was unnecessary, and would be a waste of time and money, to hold a second public inquiry, since it would be directed to the same factual issues.
+Mr Chapman did however (in connection with the first application) make a second report dated 9 June 2006 addressing the decision of the House of Lords in Oxfordshire (he advised that it made no difference to his conclusions, and that in any case it was not open to the Borough Council to reopen its decision).
+The relevant findings of fact are therefore in Mr Chapmans report dated 14 March 2006 on the first application.
+The crucial findings are in paras 171, 172, and 175.
+These paragraphs are set out in full in the judgment of Dyson LJ in the Court of Appeal [2009] EWCA Civ 3, [2009] 1 WLR 1461, but they are of such central importance that they need to be set out again.
+Para 171 dealt with use of the disputed land by golfers: 171.
+I find that, from as far back as living memory goes (at least as far back as the 1920s), the Report Land was continuously used as part of the Cleveland Golf Club links.
+The only exception is that the golfing was suspended during World War II.
+Golfing use ceased in 2002.
+I find that the club was a popular one and that the golf links were well used nearly every day of the year.
+In the years before 2002, the Report Land was used for the club house, the first and eighteenth holes and for a practice ground.
+There is some evidence that the precise configuration of the course changed somewhat over the years.
+The club house, tees, fairways, greens and practice ground did not, however, take up the whole of the Report Land and there were substantial areas of rough ground beside and between these features.
+Para 172 dealt with use by non golfers (that is, local residents): I find that from as far back as living memory goes, the open parts of the Report Land have also been extensively used by non golfers for informal recreation such as dog walking and childrens play.
+Some of the walking has been linear walking in transit.
+Thus the informal paths running east west have been used by caravan residents to get access to the centre of Redcar with its shops and public houses.
+Also, there is evidence of people taking a short cut south north from Church Street to the gap in the fence in Majuba Road.
+However I am satisfied that the open parts of the Report Land have been extensively used by non golfers for general recreational activities apart from linear walking.
+I prefer the evidence on this point of the applicants witnesses and of Mr Fletcher to the evidence of the objectors other witnesses that such use was occasional and infrequent.
+Paras 173 and 174 concluded that the local people who used the land for informal recreation came primarily from the Coatham area of Redcar.
+Then para 175 dealt with the relationship between the two types of use: I find that the relationship between the golfers and the local recreational users was generally cordial.
+There was evidence of only a few disputes.
+Only Squadron Leader Kime seems to have caused problems by actively asserting a right to use the Report Land and the golf club appears to have tried to avoid any formal dispute with him.
+In my judgment, the reason why the golfers and the local people generally got on so well was because the local people (with the exception of Squadron Leader Kime) did not materially interfere with the use of the land for playing golf.
+Many of the applicants witnesses emphasised that they would not walk on the playing areas when play was in progress.
+They would wait until the play had passed or until they were waved across by the golfers.
+Where local people did inadvertently impede play, a shout of fore would be enough to warn them to clear the course.
+I find that recreational use of the Report Land by local people overwhelmingly deferred to golfing use.
+Para 221 (in the part of the report applying the law to the facts as found) referred to the decisions of Sullivan J in R (Laing Homes Ltd) v Buckinghamshire County Council [2003] EWHC 1578 (Admin), [2004] 1 P&CR 573 (Laing Homes) and His Honour Judge Howarth in Humphreys v Rochdale MBC unreported, 18 June 2004: Leaving aside the public footpath, I consider that the reasoning in Laing Homes Ltd and Humphreys squarely applies to the Report Land in the present case.
+Use of the Report Land as a golf course by the Cleveland Golf Club would have been in breach of Inclosure Act 1857 section 12 and Commons Act 1876 section 29 if the Report Land had been a town or village green.
+It was a use which conflicted with the use of the Report Land as a place for informal recreation by local people.
+It was not a use which was with a better view to the enjoyment of the Report Land as a town or village green.
+The overwhelming evidence was that informal recreational use of the Report Land deferred to its extensive use as a golf course by the Cleveland Golf Club.
+Accordingly, use of the Report Land by local people was not as of right until use as a golf course ceased in 2002.
+Mr Chapman concluded (para 223) that (apart from use of the public footpath) recreational user of the disputed land was not as of right before 2002 because it deferred to extensive use of the land by the golf club, and that user as of right was not continuing because of the permissive signs erected in 2003.
+It is convenient, at this point, to dispose of the matter of the signs.
+They were contentious earlier but are no longer a live issue.
+There were two sets of signs: warning signs erected by the golf club in 1998 and the permissive signs erected by the Borough Council in 2003.
+The warning signs read Cleveland Golf Club. Warning.
+It is dangerous to trespass on the golf course.
+The inspector found (para 176): Although these were vandalised several times after which the golf club gave up trying to maintain them, I am satisfied that they were in place long enough for regular users of the report land to know of them.
+Indeed it seems that they caused a stir locally because of the implication that local people using Coatham Common were trespassers.
+The inspector treated them as material to the outcome of both applications, but on judicial review of the second application Sullivan J ([2008] EWHC 1813 (Admin), paras 11 to 23) held that the wording was too ambiguous to alter the character of the residents use of the land, and that conclusion has not been challenged by the respondents.
+The permissive signs erected in 2003 were fatal to the first application but not to the second application, because of the change in the law made by s.15 of the Commons Act 2006.
+The course of the second application
+Mr Chapman advised the Borough Council in an opinion dated 12 June 2007 that the application made on 6 June 2007 was bound to fail on two of the same grounds on which the first application failed, that is the deference issue and the 1998 warning notices.
+He recommended that the application should be summarily dismissed, subject to any new points raised by the applicants.
+Various points were raised but in three further opinions dated 29 July, 13 October and 18 October 2007 Mr Chapman maintained his advice that the application should be rejected.
+On 19 October 2007 the Borough Council, by its General Purposes and Village Greens Committee, accepted Mr Chapmans advice and resolved to reject the application for registration.
+On 18 July 2008 Sullivan J, at a rolled up hearing, granted the applicants permission to apply for judicial review of the Borough Councils decision, but dismissed the substantive application.
+He did so on the ground that the local residents deference to the golfers had prevented their user being as of right before 2002.
+He relied on para 82 of his own judgment in Laing Homes [2004] 1 P & CR 573, and on para 57 of Lord Hoffmanns opinion in Oxfordshire [2006] 2 AC 674.
+He granted leave to appeal, commenting, deference is judge made law, judge made by me.
+The Court of Appeal (Laws, Rix and Dyson LJJ) unanimously dismissed the appeal in reserved judgments handed down on 15 January 2009: [2009] 1 WLR 1461.
+Dyson LJ gave the principal judgment, and Rix LJ added a concurring judgment.
+Both judgments put the decision squarely on the ground of deference excluding user as of right (although Dyson LJ denied that there was any principle of deference).
+The provisions of two Victorian statutes relating to greens (section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876) which had formed part of the grounds of decision in Laing Homes, were not relied on in the Court of Appeal.
+In short, all the subsidiary issues have disappeared and this Court is faced with the single issue of deference.
+It is not however a simple issue.
+As of right
+The concept of user as of right is found (either in precisely those words or in similar terms) in various statutory provisions dealing with the acquisition by prescription of public or private rights.
+Section 5 of the Prescription Act 1832 makes it sufficient to plead enjoyment as of right (while section 2 refers to a way actually enjoyed by any person claiming right thereto without interruption for the full period of 20 years).
+Section 31 of the Highways Act 1980 refers to use of a way being actually enjoyed by the public as of right and without interruption for the full period of 20 years.
+Section 22(1A) of the Commons Registration Act 1965, as substituted by the Countryside and Rights of Way Act 2000, refers simply to inhabitants indulging in lawful sports and pastimes as of right for at least 20 years.
+Both Sunningwell [2000] 1 AC 335 and Beresford [2004] 1 AC 889 were concerned with the meaning of as of right in the Commons Registration Act 1965.
+In Sunningwell Lord Hoffmann discussed the rather unprincipled development of the English law of prescription.
+He explained that by the middle of the 19th century the emphasis shifted from fictions (pp350 351): to the quality of the 20 year user which would justify recognition of a prescriptive right or customary right.
+It became established that such user had to be, in the Latin phrase, nec vi, nec clam, nec precario: not by force, nor stealth, nor the licence of the owner. (For this requirement in the case of custom, see Mills v Colchester Corporation (1867) LR 2 CP 476, 486.) The unifying element in these three vitiating circumstances was that each constituted a reason why it would not have been reasonable to expect the owner to resist the exercise of the right in the first case, because rights should not be acquired by the use of force, in the second, because the owner would not have known of the user and in the third, because he had consented to the user, but for a limited period.
+Lord Hoffmann pointed out that for the creation of a highway, there was an additional requirement that an intention to dedicate it must be evinced or inferred (as to that aspect see R(Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs [2007] UKHL 28; [2008] AC 221).
+In Sunningwell the villagers had used about ten acres of glebe land for dog walking, childrens games, and similar activities.
+This use seems to have coincided with the land being let for grazing by horses, but the report gives little detail about this.
+The inspector (as it happens, Mr Chapman) advised against acceptance of the registration because although the witnesses had said that they thought they had the right to use the glebe, they did not say that they thought the right was confined to villagers (as opposed to the general public).
+Lord Hoffmann held (and the rest of the Appellate Committee agreed) that this was an error.
+The decision of the Court of Appeal in R v Suffolk County Council Ex p Steed (1996) 75 P & CR 102 was overruled.
+That was the context in which Lord Hoffmann stated in a passage (at pp352 353) relied on by the respondents: My Lords, I pause to observe that Lord Blackburn [in Mann v Brodie (1885) 10 App Cas 378, 386, as to dedication of a highway] does not say that there must have been evidence that individual members of the public using the way believed there had been a dedication.
+He is concerning himself, as the English theory required, with how the matter would have appeared to the owner of the land.
+The user by the public must have been, as Parke B said in relation to private rights of way in Bright v Walker 1 CM & R 211, 219, openly and in the manner that a person rightfully entitled would have used it.
+The presumption arises, as Fry J said of prescription generally in Dalton v Angus & Co 6 App Cas 740, 773, from acquiescence.
+The proposition that as of right is sufficiently described by the tripartite test nec vi, nec clam, nec precario (not by force, nor stealth, nor the licence of the owner) is established by high authority.
+The decision of the House of Lords in Gardner v Hodgsons Kingston Brewery Co. [1903] AC 229 is one of the clearest: see Lord Davey at p238 and Lord Lindley at p239.
+Other citations are collected in Gale on Easements, 18th ed. (2008) paras 4 80 and 4 81.
+The proposition was described as clear law by Lord Bingham of Cornhill in Beresford [2004] 1 AC 889, para 3.
+The opinion of Lord Rodger of Earlsferry (para 55) is to the same effect.
+So is that of Lord Scott of Foscote (para 34), though with a cautionary note as to the difference between the acquisition of public and private rights.
+Laing Homes
+The respondents case is that although Sullivan J, in his judgment in Laing Homes [2004] 1 P & CR 573, was indeed the first judge to speak in terms of deference shown by local residents, he was not striding into entirely unknown and uncharted territory.
+Earlier authorities (including those mentioned in the passage of Lord Hoffmanns opinion in Sunningwell quoted in para [19] above) suggest that although the local residents private beliefs as to their rights are irrelevant, the same is not true of their outward behaviour on the land in question, as it would appear to a reasonable owner of the land.
+It is relevant, on this argument, to look at what might today be called the residents attitude or body language (this thought is elaborated in an imaginary example given by JG Riddall, Miss Tomkins and the Law of Village Greens [2009] Conveyancer and Property Lawyer 326).
+I propose to look next at Laing Homes itself, and then to consider how far the respondents can claim much more long established roots for the doctrine of deference which Laing Homes articulates.
+Laing Homes was concerned with three adjoining fields (the application area), extending in all to 38 acres, on the edge of Widmer End in Buckinghamshire.
+This land, together with three smaller fields not affected by the application for registration, had been acquired by Laing Homes, a house builder, and held in its land bank since 1963.
+The land was subject to a grazing licence from 1973 to 1979, when the farmer stopped using it for grazing because of repeated troubles with trespassers.
+In the course of time footpaths were established round the three fields in the application area (cutting some corners) and these were officially recognised as public footpaths in June 2000.
+An application for registration of the application area was made in August 2000.
+The registration authoritys decision to register the land as a village green was challenged by way of judicial review on various grounds (including human rights grounds on which Sullivan J did not find it necessary to rule).
+In his judgment Sullivan J listed, in para 50, the four main grounds on which Laing Homes was attacking the inspectors report (and the registration based on it).
+The first ground was that there was insufficient evidence of the use of the whole of the application area for lawful sports and games over the 20 year period.
+The second was the inspectors conclusion that the use of the fields for an annual hay crop (from about 1980 until the early 1990s) was not incompatible with the establishment of village green rights.
+Sullivan J considered the second ground first.
+He discussed it at some length and differed from the inspector.
+He did so primarily on the view he took of the perception of a reasonable landowner, although he was also influenced by the point (no longer relied on) as to the Victorian statutes (para 86): Like the Inspector, I have not found this an easy question.
+Section 12 [of the Inclosure Act 1857] acknowledges that animals may be grazed on a village green.
+Rough grazing is not necessarily incompatible with the use of land for recreational purposes: see Sunningwell.
+If the statutory framework within which section 22(1) [of the Commons Registration Act 1965] was enacted had made provision for low level agricultural activities to coexist with village green type uses, rather than effectively preventing them once such a use has become established, it would have been easier to adopt the Inspectors approach, but it did not.
+I do not consider that using the three fields for recreation in such a manner as not to interfere with [the farmers] taking of an annual hay crop for over half of the 20 year period, should have suggested to Laings that those using the fields believed that they were exercising a public right, which it would have been reasonable to expect Laings to resist.
+I have to say that I am rather puzzled by Sullivan Js summary of the evidence about hay making, and the discussion of it (both by the inspector at paras 56 and 57, and by the judge himself at paras 59 63).
+There is a detailed description of the local residents keeping off the fields for a few days in spring when they were harrowed, rolled and fertilized, and again for a few days during hay making.
+But there are only the most passing references by the judge (in paras 59 and 111) to the further need for people to keep off the fields for many weeks while the crop was growing, if it was to be worth the farmers while to get it in.
+The length of this period would vary with the quality of the land and the seasonal weather, but would usually, I imagine, be of the order of three months.
+The evidence was that the farmer generally got well over 2,000 bales of hay from the application area.
+So it seems that the local residents must, in general, have respected the hay crop.
+The puzzle is partly explained by Sullivan Js consideration of the first ground (evidence of use of the whole application area) which follows at paras 88 111.
+In para 111 the judge commented that there was an overlap between the two grounds, because the existence of public footpaths round the three fields (cutting some corners) provided an alternative explanation of the local residents use of the fields.
+It seems likely that they used the perimeter paths and kept off the hay while it was growing, although their dogs may not have done, as the judge discussed at some length (paras 103 to 110).
+There are some dicta about Laing Homes in Lord Hoffmanns opinion in Oxfordshire [2006] 2 AC 674.
+Lord Rodger and I expressed general agreement with Lord Hoffmann, but did not comment on this point.
+Lord Hoffmann observed (para 57): No doubt the use of the land by the owner may be relevant to the question of whether he would have regarded persons using it for sports and pastimes as doing so as of right.
+But, with respect to the judge, I do not agree that the low level agricultural activities must be regarded as having been inconsistent with use for sports and pastimes for the purposes of section 22 if in practice they were not.
+There was some discussion in the course of argument of what Lord Hoffmann meant by the first sentence of this passage.
+In the Court of Appeal (para 45) Dyson LJ took it to mean inconsistency between competing uses manifested where the recreational users adjust their behaviour to accommodate the competing activities of the owner (or his lessees or licensees).
+I am rather doubtful about that.
+I think it just as likely that Lord Hoffmann had in mind, not concurrent competing uses of a piece of land, but successive periods during which recreational users are first excluded and then tolerated as the owner decides.
+An example would be a fenced field used for intensive grazing for nine months of the year, but left open for three months when the animals were indoors for the worst of the winter.
+Whether that is correct or not, I see great force in the second sentence of the passage quoted.
+Taking a single hay crop from a meadow is a low level agricultural activity compatible with recreational use for the late summer and from then until next spring.
+Fitch v Fitch (1797) 2 Esp 543 is venerable authority for that.
+That is not to say that Laing Homes was wrongly decided, although I see it as finely balanced.
+The residents of Widmer End had gone to battle on two fronts, with the village green inquiry in 2001 following a footpaths inquiry two or three years earlier, and some of the evidence about their intensive use of the footpaths seems to have weakened their case as to sufficient use of the rest of the application area.
+The earlier authorities
+I have already referred to Fitch v Fitch, the case about cricket and hay making at Steeple Bumpstead in Essex.
+The report is brief, but what Heath J is reported as having said is a forthright declaration of the need for coexistence between concurrent rights: The inhabitants have a right to take their amusement in a lawful way.
+It is supposed, that because they have such a right, the plaintiff should not allow the grass to grow.
+There is no foundation in law for such a position.
+The rights of both parties are distinct, and may exist together.
+If the inhabitants come in an unlawful way, or not fairly, to exercise the right they claim of amusing themselves, or to use it in an improper way, they are not justified under the custom pleaded, which is a right to come into the close to use it in the exercise of any lawful games or pastimes, and are thereby trespassers.
+Against that Mr Laurence QC relied on the general proposition that if the public (or a section of the public) is to acquire a right by prescription, they must by their conduct bring home to the landowner that a right is being asserted against him, so that the landowner has to choose between warning the trespassers off, or eventually finding that they have established the asserted right against him.
+That was in line with what Lord Hoffmann (in Sunningwell [2000] 1 AC 335, 350 351, quoted at para [18] above) called the unifying element in the tripartite test: why it would not have been reasonable to expect the owner to resist the exercise of the right.
+The first of the old authorities relied on by Mr Laurence was Bright v Walker (1834) 1 CM & R 211, 219, a case on a private right of way, in which Parke B spoke of use of a way openly and in the manner that a person rightfully entitled would have used it.
+I read that reference to the manner of use as emphasising the importance of open use, rather than as prescribing an additional requirement.
+On its facts the case raised as much of an issue as to vi as to clam since gates had been erected and broken down during the relevant period.
+The point of law in the case turned on the peculiarity that the freehold owner of the servient tenement was a corporation sole.
+The next case relied on (another case about a claim to a private way) was Hollins v Verney (1884) 13 QBD 304 (there is a fuller statement of the facts in the first instance report (1883) 11 QBD 715).
+Lindley LJ (giving the judgment of the Court of Appeal) observed at p315: No user can be sufficient which does not raise a reasonable inference of such a continuous enjoyment.
+Moreover, as the enjoyment which is pointed out by the statute is an enjoyment which is open as well as of right, it seems to follow that no actual user can be sufficient to satisfy the statute, unless during the whole of the statutory term (whether acts of user be proved in each year or not) the user is enough at any rate to carry to the mind of a reasonable person who is in possession of the servient tenement, the fact that a continuous right to enjoyment is being asserted, and ought to be resisted if such right is not recognised, and if resistance to it is intended.
+Can a user which is confined to the rare occasions on which the alleged right is supposed in this instance to have been exercised, satisfy even this test? It seems to us that it cannot: that it is not, and could not reasonably be treated as the assertion of a continuous right to enjoy; and when there is no assertion by conduct of a continuous right to enjoy, it appears to us that there cannot be an actual enjoyment within the meaning of the statute.
+The second sentence of this passage begins with Moreover, suggesting that Lindley LJ was adding to the requirement that the use should be continuous.
+But the passage as a whole seems to be emphasising that the use must be openly (or obviously) continuous (the latter word being used three more times in the passage).
+The emphasis on continuity is understandable since the weight of the evidence was that the way was not used between 1853 and 1866, or between 1868 and 1881.
+It was used exclusively, or almost exclusively, for carting timber and underwood which was cut on a 15 year rotational system.
+The use relied on was too sparse for any jury to find section 2 of the Prescription Act 1832 satisfied.
+In Bridle v Ruby [1989] QB 169 the plaintiff established a right of way by prescription despite his personal belief that he had such a right by grant.
+Ralph Gibson LJ said at p178: The requirement that user be as of right means that the owner of the land, over which the right is exercised, is given sufficient opportunity of knowing that the claimant by his conduct is asserting the right to do what he is doing without the owners permission.
+If the owner is not going to submit to the claim, he has the opportunity to take advice and to decide whether to question the asserted right.
+The fact that the claimant mistakenly thinks that he derived the right, which he is openly asserting, from a particular source, such as the conveyance to him of his property, does not by itself show that the nature of the user was materially different or would be seen by the owner of the land as other than user as of right.
+That the claimants private beliefs are generally irrelevant, in the prescription of either private or public rights, was finally confirmed by the House of Lords in Sunningwell (see paras [18] and [19] above).
+The last authority calling for mention on this point is Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd [1992] SLT 1035 (Court of Session), 1993 SC (HL) 44 (House of Lords).
+In the Court of Session the Lord President (Lord Hope), after considering several authorities, observed (at p1041): The significance of these passages for present purposes is that, where the user is of such amount and in such manner as would reasonably be regarded as being the assertion of a public right, the owner cannot stand by and ask that his inaction be ascribed to his good nature or to tolerance.
+Lord Hopes reference to the manner of use must, I think, be related to the unusual facts of the case (set out in detail at pp1037 1038).
+The issue was whether there was a public right of way over an extensive walkway in a new town, designed to separate pedestrian from vehicular traffic.
+It gave access to the town centre where there were numerous shops (whose tenants no doubt had private rights of way for themselves and their customers).
+But the walk was also used for access to public places such as the railway station, the church, a health centre and a swimming pool.
+It was held that the use of the way had the character of general public use of a town centre pedestrian thoroughfare (p1042).
+The House of Lords upheld this decision.
+It is worth noting that Lord Jauncey of Tullichettle stated, at p47, There is no principle of law which requires that there be conflict between the interest of users and those of a proprietor.
+Deference or civility?
+In the light of these and other authorities relied on by Mr Laurence I have no difficulty in accepting that Lord Hoffmann was absolutely right, in Sunningwell [2000] 1 AC 335, to say that the English theory of prescription is concerned with how the matter would have appeared to the owner of the land (or if there was an absentee owner, to a reasonable owner who was on the spot).
+But I have great difficulty in seeing how a reasonable owner would have concluded that the residents were not asserting a right to take recreation on the disputed land, simply because they normally showed civility (or, in the inspectors word, deference) towards members of the golf club who were out playing golf.
+It is not as if the residents took to their heels and vacated the land whenever they saw a golfer.
+They simply acted (as all the members of the Court agree, in much the same terms) with courtesy and common sense.
+But courteous and sensible though they were (with occasional exceptions) the fact remains that they were regularly, in large numbers, crossing the fairways as well as walking on the rough, and often (it seems) failing to clear up after their dogs when they defecated.
+A reasonably alert owner of the land could not have failed to recognise that this user was the assertion of a right and would mature into an established right unless the owner took action to stop it (as the golf club tried to do, ineffectually, with the notices erected in 1998).
+There is in my opinion a significant difference, on this point, between the acquisition of private and public rights.
+As between neighbours living in close proximity, what I have referred to as body language may be relevant.
+In a Canadian case of that sort, Henderson v Volk (1982) 35 OR (2d) 379, 384, Cory JA (delivering the judgment of the Court of Appeal of Ontario) observed: It is different when a party seeks to establish a right of way for pedestrians over a sidewalk.
+In those circumstances the user sought to be established may not even be known to the owner of the servient tenement.
+In addition, the neighbourly acquiescence to its use during inclement weather or in times of emergency such as a last minute attempt to catch a bus, should not too readily be accepted as evidence of submission to the use.
+It is right and proper for the courts to proceed with caution before finding that title by prescription or by the doctrine of lost modern grant was established in a case such as this.
+It tends to subject a property owner to a burden without compensation.
+Its ready invocation may discourage acts of kindness and good neighbourliness; it may punish the kind and thoughtful and reward the aggressor.
+That is, if I may say so, obviously good sense.
+But I do not think it has any application to a situation, such as the Court now faces, in which open land owned by a local authority is regularly used, for various different forms of recreation, by a large number of local residents.
+The inspectors assessment did in my opinion amount to an error of law.
+He misdirected himself as to the significance of perfectly natural behaviour by the local residents.
+Rights after registration
+Mr Laurence made some forceful submissions as to what the position would have been on a double hypothesis: that the disputed land had been registered as a town green, and that it had continued to be let to the golf club after its registration.
+In those circumstances, he said, the fortunes of the golfers and the local residents would be dramatically reversed: instead of being all give by the residents it would be all take, to the point at which the golf club would no longer be able to function at all.
+There was, he said, a massive mismatch between what the residents would have done in order to gain the rights, and what they would be in a position to do after the green had been registered.
+This lack of symmetry was a reason, he argued, for doubting the soundness of the reasoning on which the appellants case rested.
+These submissions raise two distinct questions.
+The first is a question of law about the effect of registration of a green.
+The second is a speculative question of predicting the behaviour of a group of people in an eventuality which cannot now arise.
+I would spend little time on the second question.
+Like other members of the Court, I am sceptical about the notion that the local residents attitude towards the golfers, if the green were to be registered in circumstances where it was still being used by the golf club, would suddenly turn from friendly civility to vindictive triumphalism.
+Many of them must have friends or neighbours who are members of the golf club; some are even members themselves.
+But I would accept that the question of law needs to be considered on the footing that it is at least possible that relations between the two groups might become rather more strained.
+Here it is necessary to come back to Oxfordshire [2006] 2 AC 674.
+The proceedings in that case were not judicial review proceedings.
+They were initiated by the registration authority, by a claim form under CPR Part 8, for guidance on a pending application for registration (the first instance judgment is reported at [2004] Ch 253).
+In the House of Lords both Lord Scott of Foscote and Baroness Hale of Richmond regarded some of the questions raised as unnecessary, academic and inappropriate (see Lord Scott at paras 91 103 and Baroness Hale at paras 131 137).
+The questions to which they most strongly objected were (i) whether, when a green was registered, the relevant inhabitants had legal rights to take recreation on it; and (ii) whether land registered as a green fell within the scope of what had been referred to as the Victorian statutes.
+Lord Hoffmann, while recognising these concerns, thought that it would be appropriate to answer the questions, because Oxford City Council had a real interest in the question (para 45): But the interest of the city council in these questions is concrete in the most literal sense.
+They wish to build houses on the land.
+If registration creates no rights and the land does not fall within the Victorian statutes, they will be able to do so.
+So Lord Hoffmann proceeded to answer them, and Lord Rodger and I expressed general agreement with his opinion.
+Lord Hoffmann noted (para 46) that registration is conclusive evidence of the matters registered, but In the case of a town or village green, the registration states simply that the land is a green.
+No other information is prescribed.
+The position under the Commons Act 2006 will be similar once it has come fully into force.
+The only rights specifically registrable in respect of a town or village green will be rights of common: see section 2(2) and section 3(4).
+But section 3(5) enables regulations to be made requiring or permitting other information to be included in the register.
+Regulations have been made (The Commons Registration (England) Regulations 2008 S.I.2008/1961) but they do not require or permit specific rights of recreation to be registered.
+The extensive management provisions in Part 2 of the Act apply to town or village greens only if they are subject to rights of common, and deal with the regulation of rights of common.
+This seems to be in line with what Lord Hoffmann said in Oxfordshire [2006] 2 AC 674, para 48, that although the Commons Registration Act 1965 was intended to be followed by further legislation in relation to the management of commons, it was by no means clear that Parliament contemplated further legislation as to rights over greens.
+I must set out at some length what Lord Hoffmann said about rights after registration (paras 49 to 51): So one has to look at the provisions about greens in the 1965 Act like those of any other legislation, assuming that Parliament legislated for some practical purpose and was not sending commons commissioners round the country on a useless exercise.
+If the Act conferred no rights, then the registration would have been useless, except perhaps to geographers, because anyone asserting rights of recreation would still have to prove them in court.
+There would have been no point in the conclusive presumption in section 10.
+Another possibility is that registration conferred such rights as had been proved to support the registration but no more.
+So, for example, if land had been registered on the strength of a custom to have a bonfire on Guy Fawkes Day, registration would confer the right to have a bonfire but no other rights.
+But this too would make the registration virtually useless.
+Although the Act provides for the registration of rights of common, it makes no provision for the registration of rights of recreation.
+One cannot tell from the register whether the village green was registered on the basis of an annual bonfire, a weekly cricket match or daily football and rounders.
+So the establishment of an actual right to use a village green would require the inhabitants to go behind the registration and prove whatever had once satisfied the Commons Commissioner that the land should be registered.
+In my view, the rational construction of section 10 is that land registered as a town or village green can be used generally for sports and pastimes.
+It seems to me that Parliament must have thought that if the land had to be kept available for one form of recreation, it would not matter a great deal to the owner whether it was used for others as well.
+This would be in accordance with the common law, under which proof of a custom to play one kind of game gave rise to a right to use the land for other games: see the Sunningwell case [2000] 1 AC 335, 357A C.
+This does not mean that the owner is altogether excluded from the land.
+He still has the right to use it in any way which does not interfere with the recreational rights of the inhabitants.
+There has to be give and take on both sides.
+Lord Hoffmann then (paras 54 to 57) dealt with the Victorian statutes as I have already mentioned.
+Lord Scott (thinking it right to express a limited view on this issue) disagreed (para 105): But I do not agree that registration can authorise local inhabitants to enjoy recreative user of the land that is different in kind from the 20 years user that has satisfied the statutory criteria for registration or that would diminish the ability of the landowner to continue to use the land in the manner in which he has been able to use the land during that 20 year period.
+I do not accept that a tolerant landowner who has allowed the local inhabitants to use his grass field for an annual 5 November bonfire for upwards of 20 years must, after registration, suffer his field to be used throughout the year for all or any lawful sports and pastimes with the consequential loss of any meaningful residual use that he could continue to make of the field.
+Having reconsidered the general agreement that I expressed in Oxfordshire, I find that I agree with almost all that Lord Hoffmann said in the paragraphs that I have quoted.
+He had already, in Sunningwell [2000] 1 AC 335, 357, explained that sport or pastime denotes a single composite class, and recognised that dog walking and playing with children [are], in modern life, the sort of informal recreation which may be the main function of a village green.
+The only point on which I differ from Lord Hoffmann is the point which Lord Scott picked up in para 105: the notion that a custom to have an annual bonfire on Guy Fawkes Day could be a sufficient basis for registration of a green.
+Such a right might have been established as a stand alone custom, but would to my mind be far too sporadic to amount to continuous use for lawful sports and pastimes (quite apart from the fact that most bonfires are now illegal on environmental grounds).
+Once that special case is eliminated, I see little danger, in normal circumstances, of registration of a green leading to a sudden diversification or intensification of use by local residents.
+The alleged asymmetry between use before and after registration will in most cases prove to be exaggerated.
+Golfers and local residents can co exist without much friction even when the latter have established legal rights.
+Conclusion
+Disparaging references are sometimes made to the village green industry and to applications for registration being used as a weapon of guerrilla warfare against development of open land.
+The House of Lords has (both in Beresford and Oxfordshire) expressed some doubt about the extension of town or village green protection to land very different (both in size and appearance) from a traditional village green.
+However, in the Commons Act 2006 Parliament has made it easier, rather than more difficult, to register a green.
+There is also the prospect (as Lord Hope mentions in para 56 of his judgment) of further legislation, which might possibly make provision for the management of greens on lines comparable to those proposed for commons in Part 2 of the Commons Act 2006.
+As it is, district councils have power under section 1 of the Commons Act 1899 to make by laws for the preservation of order on commons, which are defined (in section 15) as including town and village greens.
+Even without such regulation, conflicts over competing uses (whether as between the owner and the local residents, or between different interest groups among the local residents) are capable of resolution by the constant refrain in the law of easements that between neighbours there must be give as well as take (Gray and Gray, Elements of Land Law, 5th ed. (2009) para 5.2.72, citing Megarry J in Costagliola v English (1969) 210 EG 1425, 1431).
+For these reasons I would allow the appeal and order that the Borough Council should register the disputed land as a town green under section 1 of the Commons Act 2006 (if then in force in Redcar and Cleveland) or under the applicable transitional provisions.
+LORD HOPE
+This appeal relates to an application by Kevin Paul Lewis for judicial review of a decision of the General Purposes and Village Greens Committee of Redcar and Cleveland Borough Council on 19 October 2007 to reject an application to register part of the land in Redcar known as Coatham Common as a town or village green under the Commons Act 2006 (the 2006 Act).
+On 18 July 2008 Sullivan J dismissed the application but granted permission to appeal: [2008] EWHC 1813 (Admin).
+On 15 January 2009 the Court of Appeal (Laws, Rix and Dyson LJJ) dismissed the appeal: [2009] EWCA Civ 3; [2009] 1 WLR 1461.
+The applicant now appeals to this court.
+The interested party, Persimmon Homes (Teesside) Ltd., seeks to develop the land for housing and leisure activities.
+It supports the case for the local authority, as it did in the courts below.
+As Lord Walker has explained, the land is owned by the local authority.
+Until 2002 it was part of the land that formed the links of the Cleveland Golf Club.
+It comprised the first and eighteenth holes of the golf course and a practice ground.
+There were also substantial areas of rough ground beside and between these features.
+It was also used by the local inhabitants for informal recreation such as walking their dogs, childrens games and picnics.
+They did not interfere with or interrupt play by the golfers.
+They would wait until the play had passed or until they were waved through by the golfers.
+The relationship between the golfers and the local inhabitants was cordial.
+The two activities appear to have co existed quite happily during this period.
+The details are set out in the report by Mr Vivian Chapman QC (the Inspector).
+He was appointed by the local authority to hold an inquiry following an application by Mr Lewis and a number of other local inhabitants to register an area of land which included the club house as a town or village green under the Commons Registration Act 1965 (the 1965 Act).
+He was asked to provide a further report following a second application to register the area with which this case is concerned which was made after the 2006 Act came into force.
+His comments in a series of further opinions on the relationship between the golfers and the local inhabitants confirmed his earlier conclusions that the local inhabitants deferred to the golfers, and that the deferral to golfing use precluded use of the land by the local inhabitants as of right for recreational purposes.
+The relevant findings have been quoted in full by Lord Walker: see paras 9 11, above.
+On 18 January 2008 these judicial review proceedings were commenced.
+Sullivan J agreed with Mr Chapmans conclusion that the recreational use of the land was not as of right because it deferred to the use of the land by the golf club.
+Asking himself how the matter would have appeared to the golf club, he said that it would not be reasonable to expect the club to resist the recreational use of the land by local users if their use of the land did not in practice interfere with its use by the golf club: para 41.
+The Court of Appeal agreed with that approach: [2009] 1WLR 1461, Dyson LJ, para 54; Rix LJ, paras 64 65.
+Rix LJ said that, if it were otherwise, there would be no way of resolving questions that would subsequently arise, given that registration does not confer qualified or limited rights but the unqualified right to use the land generally for sports and pastimes.
+He envisaged questions as to whether, if a right of registration were to be assumed, the local inhabitants had a right of walking on the golf greens themselves during play or of playing golf as though they were members of the club itself.
+The issues
+As Lord Walker has explained, the question is whether the land ought to have been registered.
+In an attempt to focus their arguments more precisely, the parties were agreed that it raised the following issues: (1) Where land has been extensively used for lawful sports and pastimes nec vi, nec clam, nec precario for 20 years by the local inhabitants, is it necessary under section 15(4) of the 2006 Act to ask the further question whether it would have appeared to a reasonable landowner that users were asserting a right to use the land for the lawful sports and pastimes in which they were indulging? (2) If the answer to (1) is yes, does the mere fact that local inhabitants did not prevent the playing of golf by walking in front of the ball (or seeking to prevent the playing of strokes by golfers) preclude the use from being as of right under section 15(4)? (3) If the answer to (2) is no, did the local authority (and the Inspector) err in law in concluding that the inhabitants use was not as of right, given what the Inspector described as overwhelming evidence that recreational use of the land by local people deferred to the golfing use?
+This presentation was not, as it turned out, particularly helpful.
+As counsel recognised, issues (2) and (3) fall to be taken together, as they are both directed to the question of deference.
+And I agree with Lord Brown that the critical question, which none of these issues addresses, is what are the respective rights of the local inhabitants and the owner of the land once it has been registered.
+It is a remarkable fact that the statute gives no guidance at all on this issue.
+In R (Laing Homes Ltd) v Buckinghamshire County Council [2003] EWHC 1578 (Admin), [2004] 1 P & C R 573, paras 27 29, referring to what Carnwath J said in R v Suffolk County Council, Ex p Steed (1995) 70 P & C R 487, Sullivan J said that this was not the original intention.
+The 1965 Act was intended to be a two stage legislative process.
+As a first step the registers would establish the facts and provide a definitive record of what land was, and was not, common land or a town or village green.
+In the second stage Parliament would deal with the consequences of registration by defining what rights the public had over the land that had been registered.
+In New Windsor Corporation v Mellor [1975] Ch 380, 392, Lord Denning MR said that he hoped that the second stage legislation would not be long delayed.
+But here we are, 45 years after the passing of the 1965 Act.
+Parliament has still not said what these rights are.
+In Oxfordshire County Council v Oxford City Council [2006] 2 AC 674, para 48 Lord Hoffmann said that, while there were indications that further legislation about rights over common land was in prospect, it was by no means clear that Parliament contemplated further legislation about rights over village greens.
+It has been left to the courts to try to work this out for themselves.
+As Lord Hoffmann put in para 49, one has to look at the provisions about greens like those of any other legislation and assume that Parliament legislated for some practical purpose.
+I think that one must assume too that it was Parliaments intention that practical common sense would be the best guide to the way the public right was to be exercised once the land had entered the register.
+In answer to a series of written questions by Lord Greaves, the Parliamentary Under Secretary of State for the Department for the Environment, Food and Rural Affairs, Lord Davies of Oldham, said that the Government proposes to consult in the spring of 2010 as to whether changes are needed to the existing framework: Hansard (HL) Written Questions, 15 January 2010, Qs 961 964.
+This initiative appears to have been prompted by a research report which was received by DEFRA into the registration of new town and village greens, which has identified particular concerns as to its use in relation to land which is subject to proposals for residential development.
+I hope that the opportunity will be taken to look at the consequences of registration as revealed by the developing case law as well as how the registration system itself is working.
+Previous authority
+I agree with Lord Walker that in none of the three decisions of the House of Lords to which he refers (see para 3, above) was it necessary for the House to address the question of deference which lies at the heart of this case.
+Reg v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335 was concerned with the registration of a glebe which was used predominantly by the villagers for informal recreation.
+The diocesan board had obtained planning permission to build two houses on part of the glebe, and it objected to registration.
+But the inspector found that it had been tolerant of harmless public use of the land for informal recreation.
+In R (Beresford) v Sunderland City Council [2004] 1 AC 889 the land was an open, flat area of grass which was used by the local inhabitants for ball games and other lawful pastimes.
+The council cut the grass from time to time, but it did not use it in any other way that might have interfered with its use by the locals.
+In Oxfordshire County Council v Oxford City Council, para 125 the land was described by Lord Walker as an overgrown, rubble strewn, semi submerged area, sandwiched between the canal and the railway in north west Oxford hardly the ideal site to focus close attention on the critical issue that is before us in this case.
+The only passages in these three cases that might be taken as suggesting that the rights acquired by the local inhabitants would be enlarged over those of the owner once the land had been registered, as Rix LJ assumed would happen in this case, are to be found in Lord Hoffmanns speech in Oxfordshire.
+In para 51 he said of the effect of registration: This does not mean that the owner is altogether excluded from the land.
+He still has the right to use it in any way which does not interfere with the recreational rights of the inhabitants.
+In para 59, where he distinguished Oxfordshire from the decision of the European Court of Human Rights in J A Pye (Oxford) Ltd v United Kingdom [2005] 3 EGLR 1, there is a subtle change of language.
+He said: In the present case, first, the owner retains his title to the land and his right to use it in any way which does not prevent its use by the inhabitants for recreation and, secondly, the system of registration under the 1965 Act was introduced to preserve open spaces in the public interest.
+I think that the first passage, in which Lord Hoffmann uses the words interfere with, goes some way to supporting the idea that after registration the rights of the local inhabitants predominate.
+The second passage, on the other hand, does not.
+Preventing the use of the land for recreation would, of course, defeat the point of registration completely.
+Lord Scott of Foscote was obviously very troubled in Oxfordshire by the idea that the public would acquire much broader, more intrusive rights over the land after registration and the management problems that this might give rise to: para 85.
+But his objections were, as I read them, based on an assumption as to the effect of the registration as a town or village green on places such as a dense wood in which people wandered to pick bluebells or look for mushrooms: para 76.
+His dissent casts some light on what he thought was at issue in that case.
+But I do not think that it can be used to elevate what Lord Hoffmann said in para 51 to a ruling on the point which, on the facts of that case, did not arise.
+The only case which directly addresses the question of deference is R (Laing Homes Ltd) v Buckinghamshire County Council [2004] 1 P & CR 573, in which Sullivan J quashed the resolution that the land should be registered.
+As Dyson LJ observed in the Court of Appeal, [2009] 1 WLR 1461, para 30, the concept of deference as a bar to the creation of a new town or village green is Sullivan Js creation.
+The land in that case consisted of three adjacent fields which Laing Homes Ltd held as part of its land bank.
+It granted a grazing licence to a farmer, Mr Pennington, who for a few years at the start of the 20 year period kept cattle on the fields until he had to give this up because of problems with members of the public, whose use of the perimeters of the fields resulted in the paths that they had established there being registered as public footpaths.
+For over half of that period Mr Pennington used the land for taking an annual crop of hay.
+The question was whether this use of the land, or the growing of any other crop, was inconsistent with the right to use the land for recreation that was contended for by the local inhabitants.
+After referring to passages in Lord Hoffmanns speech in Sunningwell about the extent of the user by the public that was needed to establish that the land was being used by them as of right, Sullivan J said in para 82: If the starting point is, how would the matter have appeared to Laings? it would not be reasonable to expect Laings to resist the recreational use of their fields so long as such use did not interfere with their licensee, Mr Penningtons, use of them for taking an annual hay crop.
+In para 84 he said that, so long as the local inhabitants recreational activities did not interfere with the way in which the owner had chosen to use his land, there would be no suggestion to him that they were exercising or asserting a public right to use it for lawful sports and pastimes.
+In para 85 he said: I do not believe that Parliament could have intended that such a user for sports or pastimes would be as of right for the purposes of section 22 [of the 1965 Act].
+It would not be as of right, not because of interruption or discontinuity, which might be very slight in terms of numbers of days per year, but because the local inhabitants would have appeared to the landowner to be deferring to his right to use his land (even if he chose to do so for only a few days in the year) for his own purposes.
+In para 86 he added these words: Like the Inspector, I have not found this an easy question.
+Section 12 acknowledges that animals may be grazed on a village green.
+Rough grazing is not necessarily incompatible with the use of the land for recreational purposes: see Sunningwell.
+If the statutory framework within which section 22(1) was enacted had made provision for low level activities to co exist with village green type uses, rather than effectively preventing them once such a use has become established, it would have been easier to adopt the Inspectors approach, but it did not.
+I do not consider that using the
+three fields for recreation in such a manner as not to interfere with
+Mr Penningtons taking of an annual hay crop for over half the 20 year period, should have suggested to Laings that those using the fields believed that they were exercising a public right, which it would have been reasonable to expect Laings to resist.
+This passage suggests that Sullivan J was approaching the case on the assumption that registration was inconsistent with the continued use of the land by Mr Pennington for taking the annual hay crop.
+In other words, registration would bring non interference to an end.
+The public right to use the fields for recreational purposes would make it impossible for them to be used for growing hay.
+His approach has also been taken as indicating that in cases where the land has been used by a significant number of inhabitants for 20 years for recreational purposes nec vi, nec clam, nec precario, there is an additional question that must be addressed: would it have appeared to a reasonable landowner that the inhabitants were asserting a right to use the land for the recreational activities in which they were indulging? I am not sure that Sullivan J was really saying that there was an additional question that had to be addressed.
+But if he was, I would respectfully disagree with him on both points.
+The section 15 questions
+The application in this case was made under section 15(4) of the 2006 Act, which provides that a person may apply for registration of land as a town or village green where a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years if they ceased to do so before the commencement of that subsection, so long as the application is made within a period of five years beginning with the date of the cessation.
+The words that I have set out in quotation marks appear in each of subsections (2), (3) and (4) of section 15.
+The definition of the phrase town or village green in section 22(1) of the 1965 Act, as amended by section 98 of the Countryside and Rights of Way Act 2000, has been repeated throughout this section, with the addition of the words a significant number.
+The theory on which these provisions are based is known to the common law as prescription: see Lord Hoffmanns explanation in Sunningwell, [2000] 1 AC 335, 349 351, of the background to the definition of town or village green in section 22(1) of the 1965 Act.
+As the law developed in relation to private rights, the emphasis was on the quality of the user for the 20 year period which would justify recognition of a prescriptive right: It became established that such user had to be, in the Latin phrase, nec vi, nec clam, nec precario: not by force, nor stealth, nor the licence of the owner.
+The unifying element in these three vitiating circumstances was that each constituted a reason why it would not have been reasonable to expect the owner to resist the exercise of the right in the first case, because rights should not be acquired by the use of force, in the second, because the owner would not have known of the user and in the third, because he had consented to the use, but for a limited period.
+So in Dalton v Angus (1881) 6 App Cas 740, 773 Fry J (advising the House of Lords) was able to rationalise the law of prescription as follows: the whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rest upon acquiescence.
+Section 2 of the Prescription Act 1832 made it clear that what mattered was the quality of the user during the 20 year period.
+It had to be by a person claiming right thereto.
+It must have been enjoyed openly and in the manner that a person rightfully entitled would have used it, and not by stealth or by licence: Bright v Walker (1834) 1 CM & R 211, 219 per Parke B.
+In Gardner v Hodgson's Kingston Brewery Co Ltd [1903] AC 229, 239 Lord Lindley said that the words as of right were intended to have the same meaning as the older expression nec vi, nec clam, nec precario.
+Referring then to section 1(1) of the Rights of Way Act 1932, Lord Hoffmann said in Sunningwell at p 353: The words actually enjoyed by the public as of right and without interruption for a full period of 20 years are clearly an echo of the words actually enjoyed by any person claiming right thereto without interruption for the full period of 20 years in section 2 of the Act of 1832.
+Introducing the Bill into the House of Lords (HL Debates), 7 June 1932, col 637, Lord Buckmaster said that the purpose was to assimilate the law of public rights of way to that of private rights of way.
+It therefore seems safe to assume that as of right in the Act of 1932 was intended to have the same meaning as those words in section 5 of the Act of 1832 and the words claiming right thereto in section 2 of that Act.
+He concluded at p 354 that there was no reason to believe that as of right in section 22(1) of the 1965 Act was intended to mean anything different from what those words meant in the Acts of 1832 and 1932.
+The same can be said of the meaning of those words in section 15 of the 2006 Act.
+In the light of that description it is, I think, possible to analyse the structure of section 15(4) in this way.
+The first question to be addressed is the quality of the user during the 20 year period.
+It must have been by a significant number of the inhabitants.
+They must have been indulging in lawful sports and pastimes on the land.
+The word lawful indicates that they must not be such as will be likely to cause injury or damage to the owners property: see Fitch v Fitch (1797) 2 Esp 543.
+And they must have been doing so as of right: that is to say, openly and in the manner that a person rightfully entitled would have used it.
+If the user for at least 20 years was of such amount and in such manner as would reasonably be regarded as being the assertion of a public right (see R (Beresford) v Sunderland City Council [2004] 1 AC 889, paras 6 and 77), the owner will be taken to have acquiesced in it unless he can claim that one of the three vitiating circumstances applied in his case.
+If he does, the second question is whether that claim can be made out.
+Once the second question is out of the way either because it has not been asked, or because it has been answered against the owner that is an end of the matter.
+There is no third question.
+The answer to the first issue (see para [4], above) is: no.
+Mr Charles George QC for the appellants said that there was only one simple test: was the use caught by any of the three vitiating circumstances? Mr George Laurence QC confirmed that it was common ground that the use of the land for recreation in this case was nec vi, nec clam, nec precario, but he said that this did not exhaust the issue.
+The unifying principle was one of reasonableness.
+He said that, if it was not reasonable to expect the owner to resist what the users were doing, no harm could come to the owner from his omission to resist or complain.
+In this case, as the Inspector held, the local inhabitants overwhelmingly deferred to the golfers.
+As Dyson LJ said in the Court of Appeal, the user of the local inhabitants was extensive and frequent, but so too was the use by the golfers: the greater the degree of deference, the less likely it was that it would appear to the reasonable owner that the locals were asserting any right to use the land [2009] 1 WLR 1461, paras 48 49.
+I agree with Mr George that all the authorities show that there are only three vitiating circumstances: Gardner v Hodgson's Kingston Brewery Co Ltd [1903] AC 229, 238 per Lord Davey, p 239 per Lord Lindley; Sunningwell [2000] 1 AC 335, p 350, per Lord Hoffmann; Beresford [2004] 1 AC 889, para 3 per Lord Bingham of Cornhill, para 16 per Lord Scott of Foscote, para 55 per Lord Rodger of Earlsferry; Riddall and Trevelyan, Rights of Way, 4th ed (2007) pp 41, 47.
+There is no support there for the proposition that there is an additional requirement.
+But that does not answer Mr Laurences point, which was really and quite properly directed to the first question as to the quality of the user that is relied on.
+That, as has been said, is the critical question in this case.
+Deference
+In para 175 of his report the Inspector said that he found that the relationship between the golfers and the local recreational users was generally cordial.
+This was because local people (with the exception of Squadron Leader Kime) did not materially interfere with the use of the land for playing golf.
+They would wait until the play had passed or until they had been waved on by the golfers.
+When local people did inadvertently impede play, the golfers shout of fore was enough to warn them to clear the course.
+The Inspector asked himself whether this indicated deference to the golfers.
+Following what Sullivan J said in Laing [2004] P & CR 573, para 85, he understood that the use would not be as of right if the local inhabitants would have appeared to the owner to be deferring to his right to use his land for his own purposes.
+That approach is based on the judges assumption, which the Court of Appeal endorsed, that the effect of registration would be to enlarge the right of the local inhabitants in a way that would effectively prevent the golfers from using the land for their own purposes.
+I do not find anything in the words used in section 15(4) of the 2006 Act that supports that approach.
+On the contrary, the theme that runs right through all of the law on private and public rights of way and other similar rights is that of an equivalence between the user that is relied on to establish the right on the one hand and the way the right may be exercised once it has been established on the other.
+In Dalton v Henry Angus & Co (1881) 6 App Cas 740, 774 Fry J, having stated at p 773 that the whole law of prescription rests upon acquiescence, said that it involved among other things the abstinence by the owner from any interference with the act relied on for such a length of time as renders it reasonable for the Courts to say that he shall not afterwards interfere to stop the act being done. [my emphasis] In other words, one looks to the acts that have been acquiesced in.
+It is those acts, and not their enlargement in a way that makes them more intrusive and objectionable, that he afterwards cannot interfere to stop.
+This is the basis for the familiar rule that a person who has established by prescriptive use a right to use a way as a footpath cannot, without more, use it as a bridleway or for the passage of vehicles.
+In White v Taylor (No 2) [1969] 1 Ch 160, 192 Buckley LJ said that the user must be shown to have been of such a character, degree and frequency as to indicate an assertion by the claimant of a continuous right, and of a right of the measure of the right claimed. [again, my emphasis] That was a case in which it was claimed, among other things, that sheep rights had been established by prescription at common law.
+But I think that this observation is consistent with the approach that is taken to prescriptive rights generally.
+It has to be recognised, of course, that once the right to use the land for lawful sports and pastimes is established and the land has been registered its use by the local inhabitants for those purposes is not restricted to the sports or pastimes that were indulged in during the 20 year period.
+Lord Hoffmann said in Oxfordshire [2006] 2 AC 674, para 50, that the rational construction of section 10 of the 1965 Act, which did not require the rights of recreation as such to be registered, was that land registered as a town or village green can be used generally for sports and pastimes: It seems to me that Parliament must have thought that if the land had to be kept available for one form of recreation, it would not matter a great deal to the owner whether it was used for others as well.
+This would be in accordance with the common law, under which proof of a custom to play one kind of game gave rise to a right to use the land for other games: see the Sunningwell case [2000] 1 AC 335, 357A C.
+As he put in the passage referred to in Sunningwell, as long as the activity can properly be called a sport or pastime, it falls within the composite class.
+This approach indicates that, while the principle of equivalence tells one in general terms what the land may be used for, there may be some asymmetry as to the manner of its use for that purpose before and after it has been registered.
+But it does not follow that, where the use for recreation has co existed with the owners use of the land during the 20 year period, the relationship of co existence is ended when registration takes place.
+In Fitch v Fitch 2 Esp 543, where the inhabitants had the right to play lawful games and pastimes on the plaintiffs close which he used for growing grass for hay, the jury were told that the rights of both parties were distinct and might co exist together.
+But the inhabitants could not use the close in the exercise of their right in a way that was not fair or was improper.
+Referring to that case in Oxfordshire [2006] 2 AC 674, para 51, Lord Hoffmann said that there had to be give and take on both sides.
+Mr Stewart Smith, following Mr Laurence QC, did not agree.
+He said that it was fundamental to his argument that the concept of give and take had no place in rights of the kind that were established by registration under the 2006 Act.
+He submitted that these rights were unqualified and unlimited.
+He said that Fitch v Fitch did not support the idea of give and take, and he sought to contrast rights of the kind that follow registration with those of the kind discussed in Mercer v Woodgate (1869) LR 5 QB 26, where there was dedication of the right of way to the public subject to the owners right to plough the soil in the due course of husbandry.
+Cockburn CJ said at p 30 that there would be great injustice and hardship to hold that there had been an absolute dedication where the owner had clearly only intended a limited dedication.
+Blackburn J said at p 31 that he could see no objection in law to such a partial dedication.
+I agree that care needs to be taken in drawing conclusions from cases about the creation of a right of way by dedication.
+But the concepts of partial dedication and the co existence of rights on both sides appear to me to be capable of being applied generally.
+Lord Hoffmann would not have mentioned give and take in the Oxfordshire case [2006] 2 AC 674 if he had thought that it had no application to town and village greens.
+If it were otherwise it would in practice be very difficult, if not impossible, to obtain registration in cases where the owner is putting his land to some use other than, perhaps, growing and cutting grass for hay or silage.
+There being no indication in the statute to the contrary, I would apply these concepts to the rights created by registration as a town or village green too.
+Where then does this leave deference? Its origin lies in the idea that, once registration takes place, the landowner cannot prevent use of the land in the exercise of the public right which interferes with his use of it: Laing [2004] P & CR 573, para 86.
+So it would be reasonable to expect him to resist use of his land by the local inhabitants if there was reason to believe that his continued use of the land would be interfered with when the right was established.
+Deference to his use of it during the 20 year period would indicate to the reasonable landowner that there was no reason to resist or object to what was taking place.
+But once one accepts, as I would do, that the rights on either side can co exist after registration subject to give and take on both sides, the part that deference has to play in determining whether the local inhabitants indulged in lawful sports or pastimes as of right takes on an entirely different aspect.
+The question is whether the user by the public was of such amount and in such manner as would reasonably be regarded as being the assertion of a public right.
+Deference by the public to what the owner does on his land may be taken as an indication that the two uses can in practice co exist.
+Of course, the position may be that the two uses cannot sensibly co exist at all.
+But it would be wrong to assume, as the Inspector did in this case, that deference to the owners activities, even if it is as he put it overwhelming, is inconsistent with the assertion by the public to use of the land as of right for lawful sports and pastimes.
+It is simply attributable to an acceptance that where two or more rights co exist over the same land there may be occasions when they cannot practically be enjoyed simultaneously: Rowena Meager, Deference & user as of right: an unholy alliance, Rights of Way Law Review, October 2009, 147, 152.
+If any of the local inhabitants were to exercise their rights by way of all take and no give in a way to which legitimate objection could be taken by the landowner they could, no doubt, be restrained by an injunction: Philip Petchey, R (Lewis) v Redcar and Cleveland B C, Rights of Way Law Review, March 2009, 139, 143.
+In my opinion the Inspector misdirected himself on this point.
+The question then is whether the Councils decision which was based on his recommendation can be allowed to stand if the facts are approached in the right way.
+The facts of this case, as described by the Inspector, show that the local inhabitants (except for Squadron Leader Kime) were behaving when they were using the land for sports and pastimes in the way people normally behave when they are exercising public rights over land that is also used as a golf course.
+They recognise that golfers have as much right to use the land for playing golf as they do for their sports and pastimes.
+Courtesy and common sense dictates that they interfere with the golfers progress over the course as little as possible.
+There will be periods of the day, such as early in the morning or late in the evening, when the golfers are not yet out or have all gone home.
+During such periods the locals can go where they like without causing inconvenience to golfers.
+When golf is being played gaps between one group of players and another provide ample opportunities for crossing the fairway while jogging or dog walking.
+Periods of waiting for the opportunity are usually short and rarely inconvenience the casual walker, rambler or bird watcher.
+I cannot find anything in the Inspectors description of what happened in this case that was out of the ordinary.
+Nor do I find anything that was inconsistent with the use of the land as of right for lawful sports and pastimes.
+Conclusion
+For these reasons, and those given by everyone else with which I agree, I would allow the appeal and make the order that has been proposed by Lord Walker.
+LORD RODGER
+issue, I add some observations of my own.
+As Lord Walker has explained, until 2002 an area of land (the disputed land) in the Coatham district of Redcar formed part of a golf course on which members of the Cleveland Golf Club played.
+The club were tenants of the Council, which owned the land.
+Then, in 2002, the course was reconfigured and the club gave up its tenancy of the disputed land.
+The following year, the Council entered into an agreement with Persimmon Homes (Teesside) Ltd for a mixed residential I agree with the judgment of Lord Walker.
+In view of the importance of the and leisure development on an area of land of which the disputed land formed an important part.
+In March 2005 a group of residents applied to have the disputed land registered as a village green.
+In March 2006 the inspector recommended against registration.
+In June 2007 Mr Lewis and his fellow applicants put in a fresh application under section 15 of the Commons Act 2006.
+Again the inspector recommended against registration and the matter has now led to the present appeal.
+This sequence a proposal to develop an area of open land, followed by an application to register the land as a village green in order to stop the development is very familiar.
+The House of Lords dealt with three such cases in the space of a few years and newspaper articles refer to many other examples.
+But the fact that the disputed land was used by the golf club during the period of 20 years which the applicants rely on to justify its registration as a village green has prompted much heart searching as to what the position would have been if the land had been registered as a village green while the club was still in occupation and its members were still wanting to play on the land.
+Would registration have enabled the dog walkers of Redcar to take over and, in effect, extinguish the rights of the golfers to play on that part of their course?
+However interesting the point of law may be, in a case like this the issue is more than just a little unreal.
+The fact of the matter is that, if the golf club had remained as tenants after 2002, the golfers would have continued to hack their way over the disputed area and the dog walkers would have continued to make their way across the course.
+It is a fair bet that in that happy state of affairs no one would have dreamed of applying to have the land registered as a village green.
+It was only the prospect of the development on this open space, when the golf club was no longer using it, which prompted the application for registration with a view to stopping the development in its tracks.
+So, in the real world, the dog walkers and golfers will never actually have to co exist on the disputed land if it is registered as a village green.
+If, however, in some imaginary parallel universe, the two groups had been required to co exist after registration, then, like Lord Walker, I find it hard to imagine that there would, in practice, have been many problems.
+The pre existing situation suited the local inhabitants well enough: doubtless, some of them were themselves members of the club and played on the land; in any event, the golf club must have kept the grass cut and the area looking presentable.
+If the inhabitants had previously shown no inclination to break out the croquet hoops, or to set up butts or cricket stumps or to dance around a maypole on the disputed land, it seems unlikely that registration would have suddenly brought on the urge.
+Indeed, too many developments of these kinds would probably have upset the dog walkers almost as much as the golfers.
+In all likelihood, therefore, things would have gone on much as before, with a bit of give and take on both sides.
+I would therefore particularly associate myself with what Lord Walker says in para 47 of his judgment.
+Under section 15 of the Commons Act 2006 registration of land as a village green requires that a significant number of the inhabitants of any locality, or of any neighbourhood in a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years.
+Since R v Oxfordshire County Council Ex p Sunningwell Parish Council [2000] 1 AC 335 it has been settled law that dog walking and playing with children count as lawful sports and pastimes.
+Since both activities can and do take place on almost any and every open space near centres of population, the scope for applying to register land as a village green is correspondingly wide.
+Owners of land are taken to be aware of this chapter of the law and of the need to take appropriate preventive steps if they see a risk of circumstances arising in which an application could be made and their land become registered as a village green.
+If they fail to do so, they are treated as having acquiesced in the inhabitants indulging in sports and pastimes on their land as of right.
+Here the evidence shows that, as far back as living memory goes, many local inhabitants used the disputed land for informal recreation such as dog walking and childrens play.
+But the courts below have held that they were not doing so as of right.
+The basic meaning of that phrase is not in doubt.
+In R v Oxfordshire County Council Ex p Sunningwell Parish Council [2000] 1 AC 335 Lord Hoffmann showed that the expression as of right in the Commons Registration Act 1965 was to be construed as meaning nec vi, nec clam, nec precario.
+The parties agree that the position must be the same under the Commons Act 2006.
+The Latin words need to be interpreted, however.
+Their sense is perhaps best captured by putting the point more positively: the user must be peaceable, open and not based on any licence from the owner of the land.
+The opposite of peaceable user is user which is, to use the Latin expression, vi.
+But it would be wrong to suppose that user is vi only where it is gained by employing some kind of physical force against the owner.
+In Roman law, where the expression originated, in the relevant contexts vis was certainly not confined to physical force.
+It was enough if the person concerned had done something which he was not entitled to do after the owner had told him not to do it.
+In those circumstances what he did was done vi.
+See, for instance, D.43.24.1.5 9, Ulpian 70 ad edictum, commenting on the word as used in the interdict quod vi aut clam.
+English law has interpreted the expression in much the same way.
+For instance, in Sturges v Bridgman (1879) 11 Ch D 852, 863, where the defendant claimed to have established an easement to make noise and vibration, Thesiger LJ said: Consent or acquiescence of the owner of the servient tenement lies at the root of prescription, and of the fiction of a lost grant, and hence the acts or user, which go to the proof of either the one or the other, must be, in the language of the civil law, nec vi nec clam nec precario: for a man cannot, as a general rule, be said to consent to or acquiesce in the acquisition by his neighbour of an easement through an enjoyment of which he has no knowledge, actual or constructive, or which he contests and endeavours to interrupt, or which he temporarily licenses (emphasis added).
+In short, as Gale on Easements 18th ed, (2008), para 4 84, suggests, user is If the use continues despite the neighbours protests and attempts to interrupt it, it is treated as being vi and so does not give rise to any right against him.
+Similarly, in Dalton v Henry Angus & Co (1881) 6 App Cas 740, 786, Bowen J equated user nec vi with peaceable user and commented that a neighbour, without actual interruption of the user, ought perhaps, on principle, to be enabled by continuous and unmistakeable protests to destroy its peaceable character, and so to annul one of the conditions upon which the presumption of right is raised: Eaton v Swansea Waterworks Co (1851) 17 QB 267.
+The contrary view, that the only manner in which enjoyment of window lights could be defeated before the Prescription Act was by physical obstruction of the light, was not the doctrine of the civil law, nor the interpretation which it placed upon the term non vi.
+only peaceable (nec vi) if it is neither violent nor contentious.
+In R v Oxfordshire County Council ex p Sunningwell Parish Council [2000] 1 AC 335, 350 351, Lord Hoffmann found that the unifying element in the three vitiating circumstances was that each constituted a reason why it would not have been reasonable to expect the owner to resist the exercise of the right.
+In the case of nec vi he said this was because rights should not be acquired by the use of force.
+If, by force, Lord Hoffmann meant only physical force, then I would respectfully disagree.
+Moreover, some resistance by the owner is an aspect of many cases where use is vi.
+Assuming, therefore, that there can be vis where the use is contentious, a perfectly adequate unifying element in the three vitiating circumstances is that they are all situations where it would be unacceptable for someone to acquire rights against the owner.
+If, then, the inhabitants use of land is to give rise to the possibility of an application being made for registration of a village green, it must have been peaceable and non contentious.
+This is at least part of the reason why, as Lord Jauncey observed, in the context of a claim to a public right of way, in Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd 1993 SC (HL) 44, 47, There is no principle of law which requires that there be conflict between the interest of users and those of a proprietor.
+In this case the local inhabitants use of the disputed land for recreation was peaceable, open and not based on any licence from the Council or the golf club.
+So, prima facie, the inhabitants did everything that was necessary to bring home to the Council, if they were reasonably alert, that the inhabitants were using the land for recreation as of right.
+But the Council argue that, since there were competing interests, the inhabitants use of the land was peaceable only because they overwhelmingly deferred to the golfers simultaneous use of the same land.
+Had they not done so, it would have become contentious.
+But, because they routinely deferred to the golfers, the inhabitants did not do sufficient to bring home to the reasonable owner of the application site that they were asserting a right to use it.
+Cf Dyson LJ, [2009] 1 WLR 1461, para 49.
+In other words, the reasonable owner of the disputed land would have inferred from the behaviour of the inhabitants that they were not asserting a right over the land and so would have seen no need to take any steps to prevent such a right accruing.
+On closer examination, the starting point for this argument must be that the owner of the land is entitled to infer from the inhabitants behaviour in deferring to the golfers that they are aware of the legal position.
+But that starting point is inherently implausible.
+To adapt what Lord Sands said in connexion with a public right of way in Rhins District Committee of Wigtownshire County Council v Cuninghame 1917 2 SLT 169, 172, people walk their dogs or play with their children on the disputed land because they have been accustomed to see others doing so without objection.
+The great majority know nothing about the legal character of their right to do so and never address their minds to the matter.
+Moreover, to draw an inference based on the premise that the inhabitants are aware of the legal position is hard to reconcile with the decision in R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335, 355 356, that the subjective views of the inhabitants as to their right to indulge in sports and pastimes on the land are irrelevant.
+It would therefore have been far from reasonable for the Council to infer that the inhabitants behaviour towards the golfers was based on some understanding of the legal position.
+It would have been equally unreasonable for the Council to go further and conclude that the inhabitants were deferring to the golfers because of a conscious decision on their part to respect what they perceived to be the superior rights of the owners of the land.
+Such a conclusion might, just conceivably, have been plausible and legitimate if there had been no other explanation for the inhabitants behaviour.
+But that is far from so.
+The local inhabitants may well have deferred to the golfers because they enjoyed watching the occasional skilful shot or were amused by the more frequent duff shots, or simply because they were polite and did not wish to disturb the golfers who experience shows almost invariably take their game very seriously indeed.
+A reasonable landowner would realise that any of these motives was a more plausible explanation for the inhabitants deference to the golfers than some supposed unwillingness to go against a legal right which they acknowledged to be superior.
+In my view the inspector misdirected himself on this aspect of the case.
+I would accordingly allow the appeal and make the order proposed by Lord Walker.
+I confess that I view the outcome with little enthusiasm.
+The idea that this land should be classified and registered as a village green, when it was really just an open space that formed part of a golf course, is unattractive, to say the least.
+It is hard to imagine that those who devised the registration system ever contemplated that it would produce such a result.
+But, given the established case law and given also that Parliament has not amended the law despite the known problems, the result is unavoidable.
+LORD BROWN
+I would formulate the critical question for the Courts determination on this appeal very differently from any of those identified in the statement of facts and issues.
+The critical question to my mind is what are the respective rights of the landowner (the owner) and the local inhabitants (the locals) over land once it is registered as a town or village green?
+Take the facts of this case, as already sufficiently recounted by other members of the Court, but assume that the land here in question, instead of becoming vacant in 2002 and subject now to development proposals, remained in use by the owner (as for convenience I shall call the Redcar & Cleveland Golf Club, the actual owners licensee) as the first and 18th holes (and practice green) of their golf course.
+Suppose then that the local inhabitants, having themselves made such use of the land as the Inspector records, deferring to the golfers in the way he describes, successfully applied for its registration as a town green, what then would be the consequences with regard to the owners own continuing rights? Would the owner remain entitled to use the land for golf with the locals continuing to defer to the golfers? Or would the balance shift entirely, the locals rights being substantially enlarged by registration, the owners effectively extinguished?
+So far from this question begging that as to the right to registration (the ultimate question at issue here), it seems to me one which necessarily should be resolved before it can sensibly be decided what must be established in order to have the land registered.
+Indeed, I may as well say at once that, were it the law that, upon registration, the owners continuing right to use his land as he has been doing becomes subordinated to the locals rights to use the entirety of the land for whatever lawful sports and pastimes they wish, however incompatibly with the owner continuing in his, I would hold that more is required to be established by the locals merely than use of the land for the stipulated period nec vi nec clam nec precario.
+If, however, as I would prefer to conclude, the effect of registration is rather to entrench the previously assumed rights of the locals, precluding the owner from thereafter diminishing or eliminating such rights but not at the expense of the owners own continuing entitlement to use the land as he has been doing, then I would hold that no more is needed to justify registration than what, by common consent, is agreed to have been established by the locals in the present case.
+This is not merely because in my opinion no other approach would meet the merits of the case.
+Also it is because, to my mind, on the proper construction of section 15 of the Commons Act 2006, the only consequence of registration of land as a green is that the locals gain the legal right to continue to indulge in lawful sports and pastimes upon it (which previously they have done merely as if of right) no more and no less.
+To the extent that the owners own previous use of the land prevented their indulgence in such activities in the past, they remain restricted in their future use of the land.
+The owners previous use ex hypothesi would not have been such as to have prevented the locals from satisfying the requirements for registration of the land as a green.
+No more should the continuance of the owners use be regarded as incompatible with the lands future use as a green.
+Of course, in so far as future use by the locals would not be incompatible with the owner continuing in his previous use of the land, the locals can change, or indeed increase, their use of the land; they are not confined to the same lawful sports and pastimes, the same recreational use as they had previously enjoyed.
+But they cannot disturb the owner so long as he wishes only to continue in his own use of the land.
+Is there, then, anything in the case law which precludes our deciding, as I have already indicated I would prefer to decide, that registration does not carry with it a right in future to use the land inconsistently with such use as the owner himself has been making and wishes to continue making of it? The respondents here urge that the decision of the House of Lords in Oxfordshire County Council v Oxford City Council [2006] 2 AC 674 is just such a case.
+They so submit notwithstanding that the land there was disused scrubland of which the owner made no use whatever so that no question arose there as to possibly conflicting uses or the respective rights of owners and locals following registration.
+For my part I simply cannot regard Oxfordshire as having decided the particular question I am addressing here.
+The respondents rely on passages in Lord Hoffmanns speech such as that, following registration, [The owner] still has the right to use it in any way which does not interfere with the recreational rights of the inhabitants (para 51) and [T]he owner retains his title to the land and his right to use it in any way which does not prevent its use by the inhabitants for recreation (para 59).
+To my mind, however, these are not inconsistent with the position which I have suggested arises on registration and, indeed, (also at para 51) Lord Hoffmann states: There has to be give and take on both sides.
+True it is that, in a partially dissenting opinion, Lord Scott (at para 105) himself appears to have understood the other members of the Committee to have decided that registration of land as a green bring[s] about a diminution of the landowners property rights, not simply by establishing the local inhabitants right to go on doing what they had been doing for the last 20 years but by depriving the landowner of the right to go on doing what he has been doing for the last 20 years.
+Lord Scott did not agree [inferentially, with the majority view] that registration can authorise local inhabitants to enjoy recreative user of the land that is different in kind from the 20 years user that has satisfied the statutory criteria for registration or that would diminish the ability of the landowner to continue to use the land in the manner in which he had been able to use the land during that 20 year period . [or] that a tolerant landowner who has allowed the local inhabitants to use his grass field for an annual 5 November bonfire for upwards of 20 years must, after registration, suffer his field to be used throughout the year for all or any lawful sports and pastimes with the consequential loss of any meaningful residual use that he could continue to make of the field.
+That, however, was in the context of Lord Scotts view (para 106) that registration of the land there in question would (or at least should) entitle the locals only to recreative rights of user . commensurate with the nature of the user that had led to that result and would not necessarily extend to the right to use the land for all or any lawful sports or pastimes [for instance, clay pigeon shooting or archery contests].
+It is important to note, moreover, that all of this was concerned with the first of the ten issues before the House as to which it was held (per the headnote) that: registration gave rise to rights for the relevant inhabitants to indulge in lawful sports and pastimes, such rights extending (Lord Scott of Foscote dissenting) to sports and pastimes generally and not merely that use which had been the basis for registration, the landowner retaining the right to use the land in any way which did not interfere with those rights.
+I repeat, the position arising on registration at a time when both the owner and the locals are using land in theoretically conflicting ways but in fact harmoniously simply did not arise in Oxfordshire and I for my part would decline to treat that case as if it has decided how such an issue should be resolved.
+I would, therefore, hold that in this different situation the owner remains entitled to continue his use of the land as before.
+If, of course, as in Oxfordshire itself, he has done nothing with his land, he cannot complain that upon registration the locals gain full and unqualified recreational rights over it.
+But that is not the position I am considering here.
+In short, on the facts of this case, had the use of the land as part of a golf course continued, the locals would in my opinion have had to continue deferring to the golfers.
+By this I understand the Inspector to have meant no more than that the locals (with the single exception of Squadron Leader Kime) recognised the golfers rights to play (in this sense only the locals overwhelmingly deferred to golfing use), both locals and golfers sensibly respecting the use being made of the land by the other, neither being seriously inconvenienced by the other, sometimes the locals waiting for the golfers to play before themselves crossing, sometimes the golfers waiting for the walkers to cross before playing.
+It is not unique for golf courses to embrace at least some common land and there are innumerable courses crossed by public footpaths.
+Both walkers and golfers are generally sensible and civilised people and common courtesy dictates how to behave.
+Harmonious coexistence is in practice easily achievable.
+For my part, and in the light of my own experience both as a golfer and a walker for over six decades, I do not read the Inspectors findings as indicating (to quote Sullivan J) [2008] EWHC 1813 (Admin) para 40 that there was overwhelmingly give on the part of the local users and take on the part of the golfers.
+This being so I see no good reason whatever to superimpose upon the conventional tripartite test for the registration of land which has been extensively used by local inhabitants for recreational purposes a further requirement that it would appear to a reasonable landowner that the users were asserting a right to use the land for the lawful sports and pastimes in which they were indulging.
+As Lord Walker has explained, there is nothing in the extensive jurisprudence on this subject to compel the imposition of any such additional test.
+Rather, as Lord Hope, Lord Walker and Lord Kerr make plain, the focus must always be on the way the land has been used by the locals and, above all, the quality of that user.
+I too, therefore, would allow this appeal.
+LORD KERR
+For the reasons given by Lord Hope, Lord Rodger, Lord Walker and Lord Brown with all of which I agree, I too consider that this appeal should be allowed.
+I venture to offer a few words of my own because my conclusion that the appeal should be allowed represents a change from the view that I initially held and because I can well understand why the Court of Appeal and Sullivan J dismissed the application for judicial review.
+The critical question in this case centres on the meaning to be given to the words as of right in section 15 of the Commons Act 2006.
+It is not possible to give a literal interpretation to the words since, clearly, the right cannot vest in the local inhabitants until the period of twenty years has elapsed.
+They cannot be considered to have indulged in sports and pastimes by dint of a right until the right has come to fruition see Lord Bingham in R(Beresford) v Sunderland City Council [2003] UKHL 60 [2004] 1 AC 889, para 3.
+It is also clear that they do not need to believe that they have a right see below.
+As Lord Walker said in Beresford at paragraph 72 it has sometimes been suggested that the meaning of the statutory formula is closer to as if of right: see, for instance, Lord Cowie in Cumbernauld & Kilsyth District Council v Dollar Land (Cumbernauld) Ltd 1992 SLT 1035, 1043.
+Using this formulation, the question is what does as if of right mean.
+Does it simply mean openly indulging in the pastimes etc without force or under licence or does it connote something more? Clearly, it cannot be construed to mean as if they believed they had the right.
+The House of Lords so held in R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335.
+Does it mean that they acted as if they had the right? If so, how is that to be judged? Does it mean that they gave every indication that they had the right to indulge in the pastimes and sports? According to Mr George QC, the only exception to the tripartite test arises where the users expressly represent that they are not asserting any right at all.
+In those circumstances, according to him, they are either benefitting from the implied permission of the owner or they are covertly allowing the necessary period to elapse in which case they fall foul of the requirement that the use of the lands should not be secret.
+The question that has troubled me is, What if the inhabitants engagement in the pastimes and sports is not on foot of an express representation that they are not asserting a right but on the basis of an unspoken understanding by all concerned that they are not doing so? Is there a reason why, as a matter of principle, there should be any different legal outcome? It appears to me that there is none.
+If the owner of the lands and those who recreate on them share the appreciation that no right is being asserted, then no right is acquired.
+Therefore, as Lord Hope has said (in para 19 of his judgment), one must focus on the manner in which the local inhabitants have used the land or, as he has put it, the quality of the user relied on.
+The use of the word deferring in the context of the inhabitants use of lands is potentially misleading.
+In common parlance deferring to an owners use of his lands can easily be understood to mean no more than the ordinary courteous and civilised acknowledgement of the entitlement of the owner to make use of the lands.
+Such civility does not necessarily import an acceptance of any lack of entitlement on the part of the users to continue to indulge their recreations with a view to the acquisition of a right under section 15.
+But if deference takes the form of acceptance that the users are not embarked on a process of accumulating the necessary number of years of use of the lands or if it evinces an intention not to embark on such a process, this must surely have significance in relation to the question whether the inhabitants have indulged in the activities as of right.
+It is for this reason in particular that I am in emphatic agreement with Lord Hope in his view that one must focus on the way in which the lands have been used by the inhabitants.
+Have they used them as if they had the right to use them? This question does not require any examination of whether they believed that they had the right.
+That is irrelevant.
+The question is whether they acted in a way that was comparable to the exercise of an existing right? Posed in that way, one can understand why the Court of Appeal considered that the examination of the relevant question partook of an inquiry as to the outward appearance created by the use of the lands by the inhabitants.
+On that basis also one can recognise the force of Mr Laurence QCs argument that it was necessary to show not only that the lands had been used nec vi, nec clam, nec precario but also that it was reasonable to expect the landowner to resist the use of the land by the local inhabitants.
+The essential underpinning of both these assertions, however, was the view that the registration of the lands as a village or town green had the inexorable effect of enlargement of the inhabitants rights and the commensurate diminution of the right of the owner to maintain his pre registration level of use, if that interfered with the inhabitants extended use of the lands.
+For the reasons that Lord Hope and Lord Walker have given, the view that this was the effect of the relevant authorities in this area may now be discounted.
+For my part, I find it unsurprising that this view formerly held sway.
+Mr Laurence (without direct demur from Mr George) informed us that it was the universal opinion of all who practised in this field that the inevitable consequence of the decision in Oxfordshire County Council v Oxford City Council [2006] 2 AC 674 was that local inhabitants acquired unrestricted rights of recreation after registration.
+Passages from the speech of Lord Hoffmann in that case particularly at para 51 appeared to lend support for the notion that general, unrestricted rights of recreation over the entire extent of the lands followed upon registration.
+And the speech of Lord Scott of Foscote certainly seemed to imply that he apprehended that this was the outcome of the decision by the majority.
+Whatever may have been the position previously, however, it is now clear that, where it is feasible, co operative, mutually respecting uses will endure after the registration of the green.
+Where the lands have been used by both the inhabitants and the owner over the pre registration period, the breadth of the historical user will be, if not exactly equivalent to, at least approximate to that which will accrue after registration.
+On that basis, I am content to accept and agree with the judgments of Lord Hope, Lord Walker and Lord Brown that no overarching requirement concerning the outward appearance of the manner in which the local inhabitants used the land is to be imported into the tripartite test.
+The inhabitants must have used it as if of right but that requirement is satisfied if the use has been open in the sense that they have used it as one would expect those who had the right to do so would have used it; that the use of the lands did not take place in secret; and that it was not on foot of permission from the owner.
+If the use of the lands has taken place in such circumstances, it is unnecessary to inquire further as to whether it would be reasonable for the owner to resist the local inhabitants use of the lands.
+Put simply, if confronted by such use over a period of twenty years, it is ipso facto reasonable to expect an owner to resist or restrict the use if he wishes to avoid the possibility of registration.
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+This is the judgment of the Court, to which all members have contributed.
+The principal questions in this appeal are (a) whether article 8 of the European Convention on Human Rights (the Convention) requires a court, which is being asked to make an order for possession under section 143D(2) of the Housing Act 1996 (the 1996 Act) against a person occupying premises under a demoted tenancy, to have the power to consider whether the order would be necessary in a democratic society and (b) if so, whether section 143D(2) is compatible with article 8 of the Convention (article 8).
+In the result, the Court answers both questions in the affirmative, the first at paras 22 54, the second at paras 65 107 below.
+The appeal concerns a tenancy granted by a local authority, but observations relating to local authority landlords in this judgment apply equally to other social landlords to the extent that they are public authorities under the Human Rights Act 1998 (HRA).
+On the other hand, we should emphasise at the outset that nothing in this judgment is intended to bear on cases where the person seeking the order for possession is a private landowner.
+We briefly explain why at para 50 below.
+The background to the appeal: secure and demoted tenancies
+Most residential occupiers of houses and flats owned by local authorities are secure tenants under Part IV of the Housing Act 1985 (the 1985 Act).
+By virtue of section 84 of the 1985 Act, a secure tenant cannot be evicted unless the landlord establishes to the satisfaction of the court (a) that one of the grounds specified in schedule 2 to the 1985 Act (e g, non payment of rent or nuisance to neighbours) exists, and (b), except in some specified categories of case where suitable alternative accommodation is available, that it is reasonable to make an order for possession against the tenant.
+Even where the landlord establishes that these two requirements are satisfied, the court has a wide discretion under section 85 of the 1985 Act as to what order to make.
+It may refuse to make any order, it may adjourn the proceedings, it may make an outright possession order which takes effect on a specific day, or it may make a suspended possession order which will not take effect so long as, for instance, the tenant pays the rent or creates no nuisance.
+The secure tenancy regime was originally introduced by the Housing Act 1980 (the 1980 Act), but its provisions were consolidated in by Part IV of the 1985 Act.
+Certain types of tenancy are excluded from this regime, and they are set out in schedule 1 to the 1985 Act.
+Subsequently, amendments were made to the regime, most relevantly for present purposes by the 1996 Act and the Anti social Behaviour Act 2003 (the 2003 Act).
+The 2003 Act inserted a new section 82A into the 1985 Act (section 82A).
+This section gives the court the power to make a demotion order in respect of a secure tenancy.
+A demotion order results in a tenancy ceasing to be a secure tenancy and becoming, instead, a demoted tenancy.
+Section 82A(4) states that such an order may only be made if (a) the tenant (or someone living with him) has engaged, or has threatened to engage, in (i) housing related anti social conduct (as defined in section 153A of the 1996 Act) or (ii) conduct which consists of or involves using the premises for unlawful purposes (as explained in section 153B of the 1996 Act), and (b) it is reasonable to make the order.
+Section 82A makes it clear that the demoted tenancy is a new tenancy.
+The terms of the previous tenancy as to rent are carried across into the new tenancy, but the demotion results in much reduced rights of security of tenure for the tenant.
+Somewhat confusingly, the provisions dealing with the operation of the demoted tenancy regime were inserted as Chapter 1A of Part V of the 1996 Act.
+Subsection (1) of section 143B of that Act (section 143B) explains that, if a tenancy is demoted, the demotion will last for a year, unless the landlord brings possession proceedings within that year.
+If such proceedings are brought within the year and are not determined before the years end, the demoted tenancy continues until the proceedings are determined.
+If such proceedings are brought within the year and an order for possession is made, the tenancy ends.
+If no such proceedings are brought, or they are brought and they fail, then, at the end of the year, the demoted tenancy will become a secure tenancy.
+Subsection (1) of section 143D of the 1996 Act (section 143D) states that a landlord can only bring a demoted tenancy to an end by obtaining an order for possession from the court.
+Since it is central to the present appeal, section 143D(2) must be quoted in full: The court must make an order for possession unless it thinks that the procedure under sections 143E and 143F has not been followed.
+The effect of section 143E of the 1996 Act (section 143E) is that, before issuing possession proceedings against a demoted tenant, a local authority landlord must serve a notice (a Notice) informing him of (a) the fact that it has decided to seek possession, (b) the reasons why, (c) the date after which the proceedings will be issued, (d) the tenants right to request a review of the landlords decision (a Review), and (e) where to get legal advice.
+Section 143F of the 1996 Act (section 143F) entitles the tenant, within fourteen days of the Notice, to request a Review, in which case the local authority landlord is obliged to carry out a Review which complies with regulations made by the Secretary of State under section 143F(3) and (4), and then to inform the tenant of the outcome.
+Such regulations have been made in the Demoted Tenancies (Review of Decisions) (England) Regulations 2004 (SI 2004/1679).
+Section 143N of the 1996 Act states that the County Court has jurisdiction to determine questions arising, and to entertain proceedings brought, under, inter alia, sections 143B 143F, even if the only relief sought is a declaration.
+The procedures of the demoted tenancy regime are closely based on those of a regime first introduced by Chapter 1 of Part V of the 1996 Act.
+It enabled a local authority to grant a tenancy under which a new tenant had a one year probationary period before becoming a secure tenant.
+During that first year the tenancy is an introductory tenancy.
+The procedure governing the landlords right to claim possession during that probationary period is contained in sections 127, 128, and 129 of the 1996 Act, whose provisions are, mutatis mutandis, virtually identical to sections 143D, 143E, and 143F respectively.
+The procedural background to the appeal
+In November 1978 Manchester City Council (the Council) granted Cleveland Pinnock a tenancy of a house at 65 Meldon Road, Longsight (the property), where he has lived ever since with his partner, Christine Walker, and, from time to time, with all or some of their five children.
+In March 2005 the Council applied to the Manchester County Court for an order for possession of the property, or in the alternative a demotion order in respect of Mr Pinnocks secure tenancy.
+Each of these claims was based on the contention that all of Mr Pinnocks children and Ms Walker (but not Mr Pinnock) had been guilty of serious anti social behaviour, in breach of the covenants in Mr Pinnocks tenancy.
+The proceedings came before Recorder Scott Donovan, who heard considerable evidence and argument over a total of six days.
+In part, the length of the proceedings was due to the Council amending its case in relation to the relief it was seeking.
+The Recorder gave a full judgment on 8 June 2007.
+He concluded that a large number of serious allegations against Ms Walker and Mr Pinnocks children were well founded.
+He nevertheless decided that it would be truly draconian to make an order for possession, bearing in mind the length of the tenancy and Mr Pinnocks blameless life looked at from his own lack of direct involvement in criminal activity.
+However, he went on to say that [a]pplying the criteria of reasonableness, I am satisfied that a demotion of tenancy order is the most appropriate order and that compliance with the order is entirely within Mr Pinnocks and Christine Walkers own hands.
+The demotion order therefore took effect from 8 June 2007.
+On 6 June 2008, the day before the order would effectively have lapsed, the Council served a Notice under section 143E, which indicated that possession would be sought.
+The Notice had the effect pursuant to section 143B of prolonging the demoted tenancy, and of initiating the procedure envisaged in sections 143D, 143E and 143F.
+The Notice sought to justify the projected possession proceedings on the ground of further alleged incidents of anti social behaviour in the vicinity of the property involving two of Mr Pinnocks sons.
+Mr Pinnock exercised his right to seek a Review, which duly took place before a panel appointed by the Council (the Panel).
+In its decision of 3 July 2008, the Panel effectively upheld the Notice.
+The Council then issued a claim for possession which came before His Honour Judge Holman in the Manchester County Court.
+After a two day hearing, the Judge gave a full judgment on 22 December 2008.
+The upshot of his decision was that he made an outright order for possession of the property.
+Mr Pinnock appealed to the Court of Appeal, who dismissed his appeal: [2009] EWCA Civ 852.
+Mr Pinnock now appeals to this Court.
+The issues which arise on this appeal
+That simple description of the present proceedings rather masks the important and difficult issues to which they give rise.
+Those issues are apparent from the clear and careful judgments of Judge Holman, in the County Court, and of Stanley Burnton LJ (with whom Mummery and Lloyd LJJ agreed) in the Court of Appeal.
+Mr Pinnock wished to challenge the factual basis on which the Council had decided to seek possession and the Panel had decided to uphold the decision.
+He also contended that the making of an order for possession would violate his article 8 Convention rights.
+Judge Holman concluded that his role in this case was, as he put it, at para 60, limited to conducting a conventional judicial review of the Councils decision to bring the possession proceedings, and that his remit did not extend to resolv[ing] factual disputes.
+In particular, he could not entertain any argument based on article 8.
+Having accepted that he could review the Councils decision to bring and maintain the possession claim on normal judicial review principles, the Judge concluded that the Councils decision to prosecute the claim was rational.
+He accordingly made an outright order for possession.
+Stanley Burnton LJ agreed in the result, but, while largely agreeing with Judge Holmans analysis, he thought that the County Courts role was even more limited.
+He said this, [2009] EWCA Civ 852, at para 50: Section 143D of the 1996 Act restricts the county court to considering whether the procedure under sections 143E and 143F has been followed.
+If the court concludes the procedure has not been followed, it will not make an order for possession.
+If it has been followed, it must make the order.
+I emphasise the word procedure.
+The courts review is limited to matters of procedure, and the county court cannot review the substance or rationality of the landlords decision, or whether or not it is consistent with the tenants or other occupiers Convention rights.
+Stanley Burnton LJ nonetheless went on, helpfully, to consider whether he would have agreed with the Judges conclusion that the Councils decision to maintain a claim for possession was rational.
+He concluded that it was; indeed he thought that the Judge had taken rather a restrictive view of the relevant evidence which the Council could have taken into account.
+This appeal gives rise to four main issues, of increasing specificity.
+The first is whether the jurisprudence of the European Court of Human Rights (EurCtHR) requires that, before making an order for possession of property which consists of a persons home pursuant to a claim made by a local authority (or other public authority), a domestic court should be able to consider the proportionality of evicting that person from his home under article 8, and, in the process of doing so, to resolve any relevant factual disputes between the parties.
+We deal with that question in paras 22 54 below and answer it in the affirmative.
+The second issue (paras 55 64 below) is what this conclusion means in practice in relation to claims for possession, and related claims, in relation to residential property.
+The third issue (paras 65 107 below) is whether the demoted tenancy regime in the 1985, 1996 and 2003 Acts can properly be interpreted so as to comply with the requirements of article 8, or whether at least some aspects of that regime are incompatible with the occupiers article 8 Convention rights.
+The fourth issue (paras 108 132 below), which requires a fuller consideration of the facts of this case, is how the appeal should be disposed of in the light of the answers on the first three issues.
+First issue: what does the Convention require of the courts?
+The nature of the issue
+So far as relevant, article 8 of the Convention provides: 1.
+Everyone has the right to respect for his home . 2.
+There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of the economic well being of the country, for the prevention of disorder or crime, or for the protection of the rights of others.
+It is also appropriate to refer to article 6, which, so far as relevant, provides: In the determination of his civil rights and obligations everyone is entitled to a fair hearing by an independent and impartial tribunal established by law.
+The argument on behalf of Mr Pinnock is as follows. (a) At any rate where the person seeking possession is a public authority, a court invited to make an order for possession of a persons home must be satisfied that article 8 is complied with. (b) Accordingly, in the present proceedings, Judge Holman had to satisfy himself that the order for possession which he was being invited to make complied with article 8. (c) Article 8, when read together with article 6, required the Judge, as the relevant independent tribunal, to be satisfied that the order for possession (i) would be in accordance with the law, and (ii) would be necessary in a democratic society i e, that it would be proportionate. (d) The order for possession was in accordance with the law since it was made pursuant to the provisions relating to demoted tenancies in the 1985 and 1996 Acts, which are in principle unobjectionable under article 8. (e) However, Mr Pinnock was not given the opportunity to raise with the court the question whether the order for possession was, in all the circumstances of this case, proportionate.
+Therefore article 8 was violated. (f) Further, in order to determine proportionality, the court should have had power to resolve for itself any issues of fact between the Council and Mr Pinnock, and to form its own view of proportionality, rather than adopting the traditional judicial review approach taken by the Judge. (g) Either the legislation should be interpreted to have the effect contended for in points (e) and (f), or this court should make a declaration of incompatibility.
+The issues identified in the argument for Mr Pinnock are by no means novel.
+It is therefore necessary for the Court to look briefly at the decisions of the House of Lords which deal with them and then, in a little more detail, at the relevant decisions of the EurCtHR.
+The House of Lords Cases
+In three relatively recent cases the House of Lords held that it was not open to a residential occupier, against whom possession was being sought by a local authority, to raise a proportionality argument under article 8.
+In other words, the House rejected points (e) and (f) in the outline of the argument for Mr Pinnock in para 23 above.
+Point (g) therefore did not arise.
+For this reason, the Court of Appeal and Judge Holman were bound to come to the conclusions which we have summarised in paras 19 and 20 above.
+The three decisions of the House of Lords are Harrow London Borough Council v Qazi [2003] UKHL 43; [2004] 1 AC 983, Kay v Lambeth London Borough Council [2006] UKHL 10; [2006] 2 AC 465, and Doherty v Birmingham City Council [2008] UKHL 57; [2009] 1 AC 367.
+In each of them the defendants were residential occupiers of properties owned by a local authority, but, for one reason or another, they were not secure tenants, and, having had any right to continue to occupy the respective properties brought to an end in accordance with domestic law, they were trespassers.
+So, in accordance with domestic law, the defendants could raise no defence to the local authoritys claim for possession.
+In each case, however, the defendants contended that they should be able to rely on the argument that, even though they were trespassers with no defence to a claim for possession under domestic law, they had the right to have the proportionality of the loss of their home taken into account by virtue of their article 8 Convention rights.
+No disrespect is intended to the impressive and careful reasoning in those three decisions when we say that, for present purposes, it is unnecessary to consider them in any detail.
+In Harrow v Qazi [2004] 1 AC 983 and in Kay v Lambeth [2006] 2 AC 465, albeit in each case by a bare majority, the House decided that, a defence which does not challenge the law under which the possession order is sought as being incompatible with article 8 but is based only on the occupiers personal circumstances should be struck out: Kay v Lambeth [2006] 2 AC 465, 516 517, para 110, per Lord Hope of Craighead, with whom Lord Scott of Foscote, Baroness Hale of Richmond and Lord Brown of Eaton under Heywood agreed.
+This observation applied to claims against trespassers, just as much as to claims against current or former tenants or licensees.
+At the end of the same paragraph Lord Hope explained that, following Wandsworth London Borough Council v Winder [1985] AC 461, in principle, it would be open to a defendant to challenge the decision of a local authority to recover possession as an improper exercise of its powers at common law on the traditional judicial review ground that it was a decision that no reasonable person would consider justifiable.
+In Doherty v Birmingham [2009] 1 AC 367 the law as stated in para 110 of Kay was substantially reaffirmed.
+On the article 8 point Lord Mance, however, dissented, at para 132, and Lord Walker of Gestingthorpe displayed less than whole hearted enthusiasm, at paras 107 108.
+The law on the judicial review point was affirmed by Lord Hope, Lord Walker, and Lord Mance, at paras 56, 123 and 157 respectively.
+Nevertheless, in the light of the developments in the Strasbourg jurisprudence which we describe below, the House developed the law by acknowledging that the traditional approach to judicial review would have to be expanded, particularly to permit the court to make its own assessment of the relevant facts: [2009] 1 AC 367, especially at p 416, para 68, per Lord Scott, and at p 443, para 138, per Lord Mance.
+In both Harrow v Qazi [2004] 1 AC 983 and Kay v Lambeth [2006] 2 AC 465, Lord Bingham of Cornhill (dissenting along with Lord Steyn in the former case, and with Lord Nicholls of Birkenhead and Lord Walker in the latter) accepted that it should be open, as a matter of principle, to a residential occupier, against whom a local authority is seeking possession, to raise an article 8 proportionality argument based on the facts of the particular case.
+However, in Qazi, [2004] 1 AC 983, at para 25, Lord Bingham said that, if this was right, the occasions on which a court would be justified in declining to make a possession order would be very highly exceptional.
+He effectively repeated this view in Kay v Lambeth [2006] 2 AC 465, 491 492, para 29, where he suggested that only in rare and exceptional cases would an article 8 proportionality challenge not be futile.
+The Strasbourg Jurisprudence
+Mr Pinnock contends that, exceptionally, it is appropriate for this nine judge court to depart from the majority view in these cases because there is now a consistent series of decisions of the EurCtHR which unambiguously supports the minority view in the earlier House of Lords decisions, and there is no good reason not to follow that series of decisions.
+We must therefore examine them.
+In Connors v United Kingdom (App no 66746/01), 27 May 2004 (2004) 40 EHRR 189, gypsies had initially been permitted to locate their caravan on a piece of land owned by a local authority, but their right of occupation was brought to an end because the local authority considered that they were committing a nuisance.
+The local authority then successfully brought summary proceedings for possession, on the ground that they were trespassers and had no right to remain in occupation of the land.
+Before the First Section of the EurCtHR the gypsies successfully contended that the proceedings violated their rights under article 8.
+Although the local authoritys decision to evict the gypsies was susceptible to judicial review, the EurCtHR considered, 40 EHRR 189, para 92, that this procedure was insufficient to satisfy the requirements of article 8 because the local authority was not required to establish any substantive justification for evicting [the gypsies], and on this point judicial review could not provide any opportunity for an examination of the facts in dispute between the parties.
+verbatim in subsequent decisions, the EurCtHR said: In a passage, 40 EHRR 189, paras 81 83, which has often been quoted 81.
+An interference will be considered necessary in a democratic society for a legitimate aim if it answers a pressing social need and, in particular, if it is proportionate to the legitimate aim pursued.
+While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention. 82.
+In this regard, a margin of appreciation must, inevitably, be left to the national authorities .
+This margin will vary according to the nature of the Convention right in issue, its importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions .
+Where general social and economic policy considerations have arisen in the context of article 8 itself, the scope of the margin of appreciation depends on the context of the case, with particular significance attaching to the extent of the intrusion into the personal sphere of the applicant. 83.
+The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation.
+In particular, the Court must examine whether the decision making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by article 8.
+In Blei v Croatia (App no 59532/00), 29 July 2004 (2004) 41 EHRR 185, the First Section of the EurCtHR held that there had been no violation of the applicants article 8 rights in circumstances where her protected tenancy of her home had been terminated by the Croatian court on the ground that she had ceased to occupy it for 10 months during 1991 1992.
+Her case was that it had been her home since 1953, and that her absence had been attributable to armed conflict in Dalmatia, but it was held that it had been her personal decision to leave.
+The EurCtHR said, at 41 EHRR 185, para 65: State intervention in socio economic matters such as housing is often necessary in securing social justice and public benefit.
+In this area, the margin of appreciation available to the State in implementing social and economic policies is necessarily a wide one.
+The domestic authorities judgment as to what is necessary to achieve the objectives of those policies should be respected unless that judgment is manifestly without reasonable foundation.
+Although this principle was originally set forth in the context of complaints under article 1 of Protocol No 1 the State enjoys an equally wide margin of appreciation as regards respect for the home in circumstances such as those prevailing in the present case, in the context of article 8.
+Thus, the Court will accept the judgment of the domestic authorities as to what is necessary in a democratic society unless that judgment is manifestly without reasonable foundation, that is, unless the measure employed is manifestly disproportionate to the legitimate aim pursued.
+The case then went to the Grand Chamber, which held that, ratione temporis, the court had had no jurisdiction to hear it.
+The Grand Chamber said nothing, however, to cast doubt on what the First Section had said in the passage which we have quoted: [2006] ECHR 207.
+In McCann v United Kingdom (App no 19009/04), 13 May 2008 (2008) 47 EHRR 913 the County Court made an order for possession against a man who occupied his home as a joint tenant with his estranged wife, on the ground that the tenancy had been determined by a notice to quit which she had served at the request of the local authority landlord and without reference to her husband.
+The EurCtHR (Fourth Section) rejected the contention that the reasoning in Connors v UK 40 EHRR 189, paras 81 83, was confined only to cases involving the eviction of gypsies or cases where the applicant sought to challenge the law itself rather than its application in his particular case: 47 EHRR 913, para 50.
+The court continued: The loss of ones home is the most extreme form of interference with the right for respect for the home.
+Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under [article 8], notwithstanding that, under domestic law, his right of occupation has come to an end.
+At para 54, the EurCtHR considered and rejected the contention that the grant of the right to the occupier to raise an issue under article 8 would have serious consequences for the functioning of the system or for the domestic law of landlord and tenant, citing and confirming the view of Lord Bingham in Kay v Lambeth [2006] 2 AC 465, 491 492, para 29, to the effect that only in very exceptional cases could an applicant succeed in raising an arguable case which would require a court to examine the issue.
+The court also said that in the great majority of cases, an order for possession could continue to be made in summary proceedings.
+In osi v Croatia (App no 28261/06), 15 January 2009 the Croatian state had obtained an order evicting the applicant from her home, which she had ceased to have any right to occupy as a matter of domestic law.
+After quoting and considering Connors v UK 40 EHRR 189, paras 81 83, the EurCtHR (First Section) pointed out, at para 21, that the national courts had based their decision exclusively on the [domestic] applicable laws and had thus confined themselves to finding that occupation by the appellant was without legal basis [and] made no further analysis as to the proportionality of the measure to be applied against the applicant.
+The court immediately went on to say that the Convention required that the eviction order was proportionate to the legitimate aim pursued, and that no legal provision of domestic law should be interpreted and applied in a manner incompatible with Croatias obligations under the Convention.
+In paras 22 and 23, the EurCtHR concluded that article 8 had been violated since the applicant [had not been] afforded [the] possibility of having the proportionality and reasonableness of the measure [viz, an order of court evicting her from her home] determined by an independent tribunal in the light of the relevant principles under article 8 .
+In Zehentner v Austria (App no 20082/02), 16 July 2009 the EurCtHR (First Section) had to consider the effect of article 8 in the context of an order evicting the applicant from her home following a judicial sale, after the making of the Austrian equivalent of a charging order.
+The procedural circumstances were rather unusual, but the court held, at para 54, that the judicial sale and the applicants eviction are to be seen as a whole.
+Importantly, for present purposes, at paras 52 59, the court reaffirmed the approach in Connors v UK 40 EHRR 189 and McCann v UK 47 EHRR 913.
+In particular, the court also stated, at para 59, that a person at risk of eviction from their home should be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under article 8.
+In Pauli v Croatia (App no 3572/06), 22 October 2009 the EurCtHR (First Section) cited McCann v UK 47 EHRR 913 and reiterated, at para 43, that any person at risk of an interference with his right to home should in principle be able to have the proportionality and reasonableness of the measure determined by an independent tribunal notwithstanding that, under domestic law, he or she has no right to occupy a flat.
+The court went on to explain that this right does not arise automatically, but only if the issue is raised with the court by the person concerned.
+Finally, there is Kay v United Kingdom (App no 37341/06), 21 September 2010 in which the EurCtHR (Fourth Section) gave its judgment after the conclusion of the oral argument in this case.
+We then received written submissions on the decision from the parties.
+In that case the application was made to the Strasbourg court by the unsuccessful appellants in Kay v Lambeth [2006] 2 AC 465.
+They had no security of tenure in their homes and their defences to claims for possession brought by the local authority based on the contention that it was disproportionate to deprive them of their homes in the light of article 8 had been struck out.
+After carefully considering the various views expressed in the House of Lords in Kay v Lambeth [2006] 2 AC 465 and Doherty v Birmingham [2009] 1 AC 367, and the relevant decisions of the Court of Appeal, the EurCtHR stated, at paras 65 68, that the principles laid down in Connors v UK 40 EHRR 189 and McCann v UK 47 EHRR 913 applied.
+The EurCtHR then stated, at para 73: The Court welcomes the increasing tendency of the domestic courts to develop and expand conventional judicial review grounds in the light of article 8.
+A number of their Lordships in Doherty alluded to the possibility for challenges on conventional judicial review grounds in cases such as the applicants' to encompass more than just traditional Wednesbury grounds (see Lord Hope at para 55; Lord Scott at paras 70 and 84 to 85; and Lord Mance at paras 133 to 135 of the House of Lords judgment).
+However, notwithstanding these developments, the Court considers that at the time that the applicants cases were considered by the domestic courts, there was an important distinction between the majority and minority approaches in the House of Lords, as demonstrated by the opinions in Kay itself.
+In McCann, the Court agreed with the minority approach [in Kay v Lambeth [2006] 2 AC 465] although it noted that, in the great majority of cases, an order for possession could continue to be made in summary proceedings and that it would be only in very exceptional cases that an applicant would succeed in raising an arguable case which would require a court to examine the issue.
+Accordingly, in the next paragraph of its judgment, the EurCtHR concluded: In conclusion, the Kay applicants challenge to the decision to strike out their article 8 defences failed because it was not possible at that time to challenge the decision of a local authority to seek a possession order on the basis of the alleged disproportionality of that decision in light of personal circumstances.
+Accordingly, for the reasons given in McCann, the Court concludes that the decision by the County Court to strike out the applicant's article 8 defences meant that the procedural safeguards required by article 8 for the assessment of the proportionality of the interference were not observed.
+As a result, the applicants were dispossessed of their homes without any possibility to have the proportionality of the measure determined by an independent tribunal.
+It follows that there has been a violation of article 8 of the Convention in the instant case.
+The EurCtHR was therefore saying that, in so far as the law had subsequently been developed in Doherty v Birmingham [2009] 1 AC 367, this development could not be relied on by the United Kingdom in Kay v UK (App no 37341/06).
+Conclusion on the first issue
+From these cases, it is clear that the following propositions are now well established in the jurisprudence of the EurCtHR: (a) Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end: McCann v UK 47 EHRR 913, para 50; osi v Croatia (App no 28261/06), para 22; Zehentner v Austria (App no 20082/02), para 59; Pauli v Croatia (App no 3572/06), para 43, and Kay v UK (App no 37341/06), paras 73 4. (b) A judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review (i e, one which does not permit the court to make its own assessment of the facts in an appropriate case) is inadequate as it is not appropriate for resolving sensitive factual issues: Connors v UK 40 EHRR 189, para 92; McCann v UK 47 EHRR 913, para 53; Kay v UK (App no 37341/06), paras 72 73. (c) Where the measure includes proceedings involving more than one stage, it is the proceedings as a whole which must be considered in order to see if article 8 has been complied with: Zehentner v Austria (App no 20082/02), para 54. (d) If the court concludes that it would be disproportionate to evict a person from his home notwithstanding the fact that he has no domestic right to remain there, it would be unlawful to evict him so long as the conclusion obtains for example, for a specified period, or until a specified event occurs, or a particular condition is satisfied.
+Although it cannot be described as a point of principle, it seems that the EurCtHR has also franked the view that it will only be in exceptional cases that article 8 proportionality would even arguably give a right to continued possession where the applicant has no right under domestic law to remain: McCann v UK 47 EHRR 913, para 54; Kay v UK (App no 37341/06), para 73.
+We have referred in a little detail to the EurCtHR jurisprudence.
+This is because it is important for the Court to emphasise what is now the unambiguous and consistent approach of the EurCtHR, when we have to consider whether it is appropriate for this Court to depart from the three decisions of the House of Lords.
+As we have already explained, the House of Lords decisions have to be seen against the backdrop of the evolving Strasbourg jurisprudence.
+So, for instance, the first of the House of Lords decisions, Harrow v Qazi [2004] 1 AC 983, came before any of the EurCtHR judgments.
+Kay v Lambeth [2006] 2 AC 465 was decided after Connors v UK 40 EHRR 189.
+But, viewed without the benefit of subsequent EurCtHR jurisprudence, the reasoning in Connors could have been interpreted as applying only to gypsies.
+Indeed one point made on the applicants behalf was that gypsies occupying sites owned by local authorities were not given any rights of security of tenure, unlike occupiers of flats or houses owned by local authorities, who were secure tenants.
+Although McCann v UK 47 EHRR 913 had been decided by the time of Doherty v Birmingham [2009] 1 AC 367, it would have been inappropriate for a five judge court, at least in the particular circumstances, to depart substantially from the decision of the seven judge court in Kay.
+Importantly, the judgments in osi v Croatia (App no 28261/06), Zehentner v Austria (App no 20082/02), Pauli v Croatia (App no 3572/06) and Kay v UK (App no 37341/06) were all given after the last of the three House of Lords decisions.
+This Court is not bound to follow every decision of the EurCtHR.
+Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the Court to engage in the constructive dialogue with the EurCtHR which is of value to the development of Convention law (see e g R v Horncastle [2009] UKSC 14; [2010] 2 WLR 47).
+Of course, we should usually follow a clear and constant line of decisions by the EurCtHR: R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323.
+But we are not actually bound to do so or (in theory, at least) to follow a decision of the Grand Chamber.
+As Lord Mance pointed out in Doherty v Birmingham [2009] 1 AC 367, para 126, section 2 of the HRA requires our courts to take into account EurCtHR decisions, not necessarily to follow them.
+Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this Court not to follow that line.
+In the present case there is no question of the jurisprudence of the EurCtHR failing to take into account some principle or cutting across our domestic substantive or procedural law in some fundamental way.
+That is clear from the minority opinions in Harrow v Qazi [2004] 1 AC 983 and Kay v Lambeth [2006] 2 AC 465, and also from the fact that our domestic law was already moving in the direction of the European jurisprudence in Doherty v Birmingham [2009] 1 AC 367.
+Even before the decision in Kay v UK (App no 37341/06), we would, in any event, have been of the opinion that this Court should now accept and apply the minority view of the House of Lords in those cases.
+In the light of Kay, that is clearly the right conclusion.
+Therefore, if our law is to be compatible with article 8, where a court is asked to make an order for possession of a persons home at the suit of a local authority, the court must have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact.
+We emphasise that this conclusion relates to possession proceedings brought by local authorities.
+As we pointed out at para 4 above, nothing which we say is intended to bear on cases where the person seeking the order for possession is a private landowner.
+Conflicting views have been expressed both domestically and in Strasbourg on that situation.
+In Harrow v Qazi [2004] 1 AC 983 the views of Lord Bingham and Lord Steyn, at paras 23 and 26, can be contrasted with the view of Lord Hope, at para 52.
+In Belchikova v Russia (App no 2408/06, 25 March 2010), the application was held to be inadmissible, but the EurCtHR (First Section) seems to have considered that article 8 was relevant, even when the person seeking possession was a private sector landowner.
+Presumably, this was on the basis that the court making the order was itself a public authority.
+But it is not clear whether the point was in contention.
+In the rather older admissibility decision of Di Palma v United Kingdom (App no 11949/86) (1986) 10 EHRR 149, 155 156, the Commission seems to have taken a different view, but the point was only very briefly discussed.
+No doubt, in such cases article 1 of the First Protocol to the Convention will have a part to play, but it is preferable for this Court to express no view on the issue until it arises and has to be determined.
+Exceptionality
+It is necessary to address the proposition that it will only be in very highly exceptional cases that it will be appropriate for the court to consider a proportionality argument.
+Such a proposition undoubtedly derives support from the views expressed by Lord Bingham, and has been referred to with apparent approval by the EurCtHR in more than one case.
+Nevertheless, it seems to us to be both unsafe and unhelpful to invoke exceptionality as a guide.
+It is unhelpful because, as Lady Hale pointed out in argument, exceptionality is an outcome and not a guide.
+It is unsafe because, as Lord Walker observed in Doherty v Birmingham [2009] 1 AC 367, para 122, there may be more cases than the EurCtHR or Lord Bingham supposed where article 8 could reasonably be invoked by a residential tenant.
+We would prefer to express the position slightly differently.
+The question is always whether the eviction is a proportionate means of achieving a legitimate aim.
+Where a person has no right in domestic law to remain in occupation of his home, the proportionality of making an order for possession at the suit of the local authority will be supported not merely by the fact that it would serve to vindicate the authoritys ownership rights.
+It will also, at least normally, be supported by the fact that it would enable the authority to comply with its duties in relation to the distribution and management of its housing stock, including, for example, the fair allocation of its housing, the redevelopment of the site, the refurbishing of sub standard accommodation, the need to move people who are in accommodation that now exceeds their needs, and the need to move vulnerable people into sheltered or warden assisted housing.
+Furthermore, in many cases (such as this appeal) other cogent reasons, such as the need to remove a source of nuisance to neighbours, may support the proportionality of dispossessing the occupiers.
+In this connection, it is right to refer to a point raised by the Secretary of State.
+He submitted that a local authoritys aim in wanting possession should be a given, which does not have to be explained or justified in court, so that the court will only be concerned with the occupiers personal circumstances.
+In our view, there is indeed force in the point, which finds support in Lord Binghams comment in Kay v Lambeth [2006] 2 AC 465, 491, para 29, that to require the local authority routinely, from the outset, to plead and prove that the possession order sought is justified would, in the overwhelming majority of cases, be burdensome and futile.
+In other words, the fact that the authority is entitled to possession and should, in the absence of cogent evidence to the contrary, be assumed to be acting in accordance with its duties, will be a strong factor in support of the proportionality of making an order for possession.
+But, in a particular case, the authority may have what it believes to be particularly strong or unusual reasons for wanting possession for example, that the property is the only occupied part of a site intended for immediate development for community housing.
+The authority could rely on that factor, but would have to plead it and adduce evidence to support it.
+Unencumbered property rights, even where they are enjoyed by a public body such as a local authority, are of real weight when it comes to proportionality.
+So, too, is the right indeed the obligation of a local authority to decide who should occupy its residential property.
+As Lord Bingham said in Harrow v Qazi [2004] 1 AC 983, 997, para 25: [T]he administration of public housing under various statutory schemes is entrusted to local housing authorities.
+It is not for the court to second guess allocation decisions.
+The Strasbourg authorities have adopted a very pragmatic and realistic approach to the issue of justification.
+Therefore, in virtually every case where a residential occupier has no contractual or statutory protection, and the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate.
+However, in some cases there may be factors which would tell the other way.
+Second issue: the application of this conclusion in general
+The conclusion that, before making an order for possession, the court must be able to decide not only that the order would be justified under domestic law, but also that it would be proportionate under article 8(2) to make the order, presents no difficulties of principle or practice in relation to secure tenancies.
+As explained above, no order for possession can be made against a secure tenant unless, inter alia, it is reasonable to make the order.
+Any factor which has to be taken into account, or any dispute of fact which has to be resolved, for the purpose of assessing proportionality under article 8(2), would have to be taken into account or resolved for the purpose of assessing reasonableness under section 84 of the 1985 Act.
+Reasonableness under that section, like proportionality under article 8(2), requires the court to consider whether to order possession at all, and, if so, whether to make an outright order rather than a suspended order, and, if so, whether to direct that the outright order should not take effect for a significant time.
+Moreover, reasonableness involves the trial judge tak[ing] into account all the relevant circumstances in a broad common sense way: Cumming v Danson [1942] 2 All ER 653, 655, per Lord Greene MR.
+It therefore seems highly unlikely, as a practical matter, that it could be reasonable for a court to make an order for possession in circumstances in which it would be disproportionate to do so under article 8.
+The implications of article 8 being potentially in play are much more significant where a local authority is seeking possession of a persons home in circumstances in which domestic law imposes no requirement of reasonableness and gives an unqualified right to an order for possession.
+In such a case the courts obligation under article 8(2), to consider the proportionality of making the order sought, does represent a potential new obstacle to the making of an order for possession.
+The wide implications of this obligation will have to be worked out.
+As in many situations, that is best left to the good sense and experience of judges sitting in the County Court.
+The present appeal involves a type of case which arises relatively rarely, namely a claim for possession against a demoted tenant, and we heard relatively little in the submissions about other types of case.
+When it comes to possession proceedings, a demoted tenant is unusual in two respects: (a) he has already been the subject of proceedings which have resulted in the loss of statutory protection, and (b) he will have been given notice of the grounds on which possession is being sought, and an opportunity to challenge those grounds.
+The conjoined appeals in Salford City Council v Mullen [2010] EWCA Civ 336, which are due to be heard by this Court later this month, involve possession orders made in different and more common circumstances, namely the introductory tenancy regime (under Chapter 1 of Part V of the 1996 Act) and the homelessness regime (under Part VII of the 1996 Act).
+Those appeals may therefore provide a more appropriate vehicle for the giving of general guidance.
+Moreover, in relation to the homelessness regime, this Court will be able to consider whether any guidance can usefully be given to local authorities as to what course to take before seeking possession in cases where there is no provision for the kind of procedure envisaged in sections 143E and 143F of the 1996 Act.
+In the light of our decision in the present appeal the lawyers preparing for those appeals will have the opportunity to give particular attention to these aspects of the matter.
+Nevertheless, certain general points can be made, even at this stage.
+First, it is only where a persons home is under threat that article 8 comes into play, and there may be cases where it is open to argument whether the premises involved are the defendants home (e g where very short term accommodation has been provided).
+Secondly, as a general rule, article 8 need only be considered by the court if it is raised in the proceedings by or on behalf of the residential occupier.
+Thirdly, if an article 8 point is raised, the court should initially consider it summarily, and if, as will no doubt often be the case, the court is satisfied that, even if the facts relied on are made out, the point would not succeed, it should be dismissed.
+Only if the court is satisfied that it could affect the order that the court might make should the point be further entertained.
+Fourthly, if domestic law justifies an outright order for possession, the effect of article 8 may, albeit in exceptional cases, justify (in ascending order of effect) granting an extended period for possession, suspending the order for possession on the happening of an event, or even refusing an order altogether.
+Fifthly, the conclusion that the court must have the ability to assess the article 8 proportionality of making a possession order in respect of a persons home may require certain statutory and procedural provisions to be revisited.
+For example, section 89 of the 1980 Act limits the period for which a possession order can be postponed to 14 days, or, in cases of exceptional hardship, 42 days.
+And some of the provisions of CPR 55, which appear to mandate a summary procedure in some types of possession claim, may present difficulties in relation to cases where article 8 claims are raised.
+Again, we say no more on the point, since these aspects were not canvassed on the present appeal to any significant extent, save in relation to the legislation on demoted tenancies which we are about to discuss under the third issue.
+Sixthly, the suggestions put forward on behalf of the Equality and Human Rights Commission, that proportionality is more likely to be a relevant issue in respect of occupants who are vulnerable as a result of mental illness, physical or learning disability, poor health or frailty, and that the issue may also require the local authority to explain why they are not securing alternative accommodation in such cases seem to us well made.
+Third issue: the application of this conclusion to demoted tenancies
+Introductory
+As explained above, where an order for possession is made against a demoted tenant, such as Mr Pinnock, the court is involved at two different stages.
+The first stage, which arises if the landlord decides to apply for a demotion order, requires the court to decide whether to make such an order.
+The second stage, which arises if the landlord decides to make an application for an order for possession while the demotion order applies, requires the court to decide whether to make an order for possession.
+Each stage involves a significant and direct assault on the tenants right to occupy his home, and therefore engages article 8.
+So far as the first stage is concerned, before making a demotion order, the court must consider for itself the factual basis for making such an order.
+Moreover, the court can only make such an order once it is satisfied (a) that the facts which it investigates and determines justify the order under section 82A(4)(a), and (b) that it is reasonable to make the order under section 82A(4)(b).
+I therefore find it impossible to conceive of circumstances where the requirements of article 8 would not be satisfied by the plain words of the relevant statutory provisions.
+Greater problems arise, however, when one turns to the second stage where, as in this case, the court is asked to make an order for possession against a demoted tenant.
+The proper interpretation of section 143D(2) of the 1996 Act
+The first argument raised against the conclusion that the County Court judge who is asked to make an order for possession under section 143D(2) can carry out his own article 8 assessment of the proportionality of making such an order arises from the wording of the sub section.
+We have quoted it at para 10 above.
+The provision requires the court to make an order for possession, unless it thinks that the procedure under sections 143E and 143F has not been followed.
+If one construes that section in accordance with the traditional approach to interpretation, it is hard to see how the court could have the power either to investigate for itself the facts relied on to justify the decision to seek possession, or to refuse to make an order for possession if it considered that it would be disproportionate to do so.
+Therefore there is obvious force in the point that, in the absence of any article 8 Convention right, section 143D(2) would limit the court to satisfying itself that the procedural requirements of sections 143E and 143F had been complied with.
+Stanley Burnton LJ took that view in the Court of Appeal.
+At any rate, absent the HRA, the purpose of section 143D appears to be to deprive the courts of almost any ability to stand in the way of a landlord who had decided to seek possession against a demoted tenant.
+However, as the Convention requires the court to have the power to consider the proportionality under article 8 of making a possession order at the instance of a local authority in respect of a persons home, the effect of section 3(1) of the HRA is that section 143D(2) should be read as not excluding that power, if at all possible.
+Accordingly, it is necessary to examine the issue rather more critically.
+Clearly, the local authority, when deciding to bring possession proceedings against a demoted tenant under section 143E, and any Panel reviewing that decision under section 143F have a duty in domestic law to act rationally and to investigate the relevant facts fairly, as well as a duty under article 8 to consider proportionality, which includes investigating the relevant facts.
+Rightly, in our view, it is common ground that a court has jurisdiction, under normal judicial review principles, to satisfy itself that the local authority and Panel have indeed acted reasonably and have investigated the relevant facts fairly, when deciding to bring possession proceedings.
+From this it must follow that any decision by the local authority to continue possession proceedings is similarly susceptible to judicial review.
+At the same time, it is right to emphasise that it would almost always require a marked change of circumstances following a Panels decision to approve the proceedings, before an attempt could properly be made to judicially review the continuance of proceedings which were initially justified.
+In our judgment, once it is accepted that it is open to a demoted tenant to seek judicial review of a landlords decision to bring and continue possession proceedings, then it inevitably follows that, as a generality, it is open to a tenant to challenge that decision on the ground that it would be disproportionate and therefore contrary to article 8.
+Further, as we saw at paras 31 to 43 above, the EurCtHR jurisprudence requires the court considering such a challenge to have the power to make its own assessment of any relevant facts which are in dispute.
+We have already pointed out, at para 28 above, that Lord Scott and Lord Mance, in particular, reached this conclusion in Doherty v Birmingham [2009] 1 AC 367, paras, 68 and 138.
+The EurCtHR acknowledged this development in Kay v UK (App no 37341/06), para 73.
+In these circumstances we are satisfied that, wherever possible, the traditional review powers of the court should be expanded so as to permit it to carry out that exercise.
+In summary.
+Where it is required in order to give effect to an occupiers article 8 Convention rights, the courts powers of review can, in an appropriate case, extend to reconsidering for itself the facts found by a local authority, or indeed to considering facts which have arisen since the issue of proceedings, by hearing evidence and forming its own view.
+Much the more difficult question, however, is whether it is possible to read and give effect to section 143D(2) in a way that would permit the County Court judge to carry out this exercise.
+As we have pointed out at para 69 above, the purpose of the subsection appears to be to ensure that the court makes an order for possession in all cases except where it thinks that the procedure under sections 143E and 143F has not been followed.
+In other words, the purpose is to ensure that the court does nothing more than check whether the procedure has been followed.
+It could therefore be argued that holding that the court could assess the proportionality of the local authoritys decision to bring and to continue the possession proceedings would go against the whole import of the section and would amount to amending rather than interpreting it.
+We have come to the conclusion that we should reject that argument.
+In our view, if the procedure laid down in section 143E or 143F has not been lawfully complied with, either because the express requirements of that section have not been observed or because the rules of natural justice have been infringed, the tenant should be able to raise that as a defence to a possession claim under section 143D(2).
+After all, the tenants argument in such circumstances would be within the scope of the ambit of section 143D(2), namely that the procedure under sections 143E and 143F has not been [lawfully] followed, since lawfulness must be an inherent requirement of the procedure.
+It must equally be open to the court to consider whether the procedure has been lawfully followed, having regard to the defendants article 8 Convention rights and section 6 of the HRA.
+This approach is borne out by section 7(1) of the HRA which, so far as relevant, provides: A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may (b) rely on the Convention right or rights concerned in any legal proceedings.
+By virtue of this provision, an occupier who is the defendant in possession proceedings in the County Court and who claims that it would be incompatible with his article 8 Convention rights for him to be put out of his home must be able to rely on those rights in defending those proceedings.
+This approach fits with the observation of the EurCtHR in Pauli v Croatia (App no 3572/06), para 43, that the court need consider proportionality only if it is raised by the person whose article 8 rights are said to be infringed.
+We therefore consider that section 143D(2) should be read as allowing the court to exercise the powers which are necessary to consider and, where appropriate, to give effect to, any article 8 defence which the defendant raises in the possession proceedings.
+This approach to the interpretation of section 143D(2) also goes a long way towards disposing of Mr Ardens argument that, even if article 8 required this kind of review, the County Court does not have jurisdiction to carry it out.
+So, he suggested, the issue would have to be referred to the High Court, where it would presumably be assigned to the Administrative Court.
+In effect, section 7(1)(b) confers the necessary jurisdiction on County Court judges when it is necessary for them to deal with a defence which relies on an alleged breach of the defendants article 8 Convention rights.
+The same conclusion can be justified on the rather wider basis that, where a tenant contends that the decision of a local authority landlord to issue, or indeed to continue, possession proceedings can in some way be impugned, the tenant should be entitled to raise that contention in the possession proceedings themselves, even if they are in the County Court.
+This seems to us to follow from the decision of the House of Lords in Wandsworth v Winder [1985] AC 461, as cited and approved in the present context in Kay v Lambeth [2006] 2 AC 465, para 110, and again in Doherty v Birmingham [2009] 1 AC 367, paras 56, 123 and 157 (see para 28 above).
+This approach also derives strong support from the observations of Lord Bingham in Kay v Lambeth [2006] 2 AC 465, para 30.
+This second reason involves disapproving part of the reasoning of the Court of Appeal in Manchester City Council v Cochrane [1999] 1 WLR 809, by which, understandably, the Court of Appeal in this case appears to have regarded itself as bound.
+In Manchester City the Court of Appeal held that an introductory tenant could not raise a defence to a claim for possession when that defence was based on the contentions that (a) there had been no breaches of the tenancy agreement (the substantive ground relied on by the Council for bringing the instant proceedings), (b) the relevant Regulations had not been complied with, and (c) there had been a failure to comply with the rules of natural justice in the conduct of the review by the Panel.
+As a result of our conclusion on the first issue on this appeal, article 8 would require the court to be able to consider the facts, as well as proportionality, for itself.
+However, even in the absence of article 8, a court would have had power to consider whether a reasonable local authority and panel could have reached the conclusion that such breaches existed.
+Similarly, a court would have had power to consider whether the relevant Regulations had been followed, and whether the rules of natural justice had been followed.
+The question is whether that court could be the court hearing the possession claim, given that it is (virtually always) the County Court.
+In Manchester City [1999] 1 WLR 809, three reasons were given for concluding that the defences sought to be raised could not be pursued in the County Court.
+The first was that section 127(2) of the 1996 Act, which is in similar terms to section 143D(2), required the court to make an order for possession: [1999] 1 WLR 809, 818G 820B.
+That is, in substance, the view which we have rejected in paras 76 79 above.
+The second reason for the Court of Appeals conclusion in Manchester City was based on the contrast between section 127(2) and section 204 of the 1996 Act, in Part VII of the 1996 Act which is concerned with homelessness: [1999] 1 WLR 809, 820B C, 821H 822A.
+However, like Lord Fraser of Tullybelton in Wandsworth v Winder [1985] AC 461, 510A B, we would adopt the principle stated by Viscount Simonds in Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260, 286, that a citizens recourse to Her Majestys courts for the determination of his rights is not to be excluded except by clear words.
+The third reason for the Court of Appeals decision in Manchester City is discussed at [1999] 1 WLR 809, 820C 821E, and relies on the presumption that possession claims against demoted tenants could be procedurally derailed if tenants could raise public law points in the course of the possession proceedings.
+We do not consider that this presumption is correct.
+Indeed, the ability of a tenant to delay possession proceedings by raising a public law point would be greater if such points had to be taken in separate proceedings in the High Court.
+For these reasons we are satisfied that we should apply the approach of the House of Lords in Wandsworth v Winder [1985] AC 461.
+This permits us to confirm our earlier conclusion that section 143D(2) should be read as allowing the County Court to exercise the powers which are necessary to consider and, where appropriate, to give effect to, any article 8 defence which the defendant raises in possession proceedings brought in that court.
+Section 17(1)(a) of the Crime and Disorder Act 1998
+A further difficulty which is said to stand in the way of the conclusion that the County Court judge can carry out a proportionality exercise is based on section 17(1)(a) of the Crime and Disorder Act 1998 (section 17), which provides Without prejudice to any other obligation imposed on it, it shall be the duty of each authority to which this section applies to exercise its various functions with due regard to the likely effect of the exercise of those functions on, and the need to do all that it reasonably can to
+prevent (a) crime and disorder in its area
+This section, Mr Arden rightly submitted on behalf of the Council, applied when, inter alia, a local authority was exercising its function as the landlord of its housing stock.
+He then went on to submit that the Councils duty under section 17 could conflict with its duty, by virtue of the occupiers article 8 Convention rights, to consider whether it would be proportionate to bring or continue possession proceedings against him.
+For instance, bringing such proceedings might be a reasonable way of preventing crime and disorder in the authoritys area, even though bringing those proceedings would be disproportionate when viewed in the particular context of the individual concerned.
+In our view, this argument is devoid of substance.
+In the first place, section 17 begins with the qualifying words Without prejudice to any other obligation imposed on it.
+Therefore, if the effect of the HRA is to impose an obligation on a local authority landlord to consider proportionality under article 8 before embarking on possession proceedings against a demoted tenant, section 17 is not inconsistent with, and does not undermine, that obligation.
+As far as the County Court is concerned, insofar as it is to be treated as reviewing the local authoritys decision to bring proceedings, the same point applies, and, insofar as it is to be treated as carrying out its own assessment, nothing in section 17 impinges on it.
+Secondly, section 17 requires a local authority to exercise its functions, paying due regard to the need to prevent crime and disorder.
+The section imposes no absolute obligation on an authority to do everything to reduce crime and disorder, irrespective of other persons rights or of its own other duties and it would be very surprising if it did.
+Accordingly, the furthest this point goes is to suggest that a local authority, when deciding to bring possession proceedings against a demoted tenant, should take into account its duty under section 17, as well as the article 8 Convention rights of the tenant and any other Convention rights that may be in play.
+That would also be a factor to be taken into account by the Panel when reviewing the local authoritys decision.
+Similarly, it would be a factor for the County Court judge to take into account when considering whether the local authority had acted proportionately.
+Section 6(2) of the Human Rights Act
+We have concluded that section 143D(2) of the 1996 Act can be read and given effect compatibly with the article 8 Convention rights of any occupiers of local authority housing.
+So no question of the application of section 6(2) of the HRA arises in that respect.
+Nor, indeed, did Mr Arden argue that section 6(2) would make it lawful for the local authority to disregard the occupiers article 8 Convention rights when deciding whether to bring possession proceedings against him.
+On the contrary, it was, rightly, common ground that a local authority must take into account a demoted tenants article 8 rights when taking possession proceedings under the 1996 Act.
+The same applied to a Panel reviewing that decision.
+But, as is plain from the speeches of Lord Walker and Lord Mance in Doherty v Birmingham City Council [2009] 1 AC 367, at paras 110 113 and 141 153, respectively, two passages at paras 86 and 114 in the speech of Lord Hope in Kay v Lambeth [2006] 2 AC 465, could be interpreted as indicating that section 6(2) did apply to the local authoritys decision as to whether to bring possession proceedings in the circumstances of those cases so as to make it lawful for the authority to disregard the occupiers article 8 Convention rights.
+The absence of any real debate on the point makes the present case an unsuitable vehicle for any wide ranging discussion of section 6(2).
+Nevertheless, we think it right to confirm that, in our view, the subsection has no application to the decision of a local authority as to whether to bring or continue possession proceedings against demoted tenants.
+Section 6 of the HRA provides: (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
+Plainly, subsection (2)(a) applies only where legislation imposes a duty to act.
+That provision is not relevant for present purposes since the local authority is under no statutory duty which would compel it to take possession proceedings against a demoted tenant.
+The statutory provision which relates to the bringing of possession proceedings against demoted tenants is section 143D(1) of the 1996 Act.
+It provides: (1) The landlord may only bring a demoted tenancy to an end by obtaining (a) an order of the court for the possession of the dwelling house, and (b) the execution of the order.
+In addition, as already explained, section 143E provides for the local authority to give notice of its decision to apply for an order for possession of the tenants house.
+Section 143F provides for the Panel to review that decision at the request of the tenant.
+It does not particularly matter on which of these provisions we choose to concentrate.
+But it can be assumed, for the purposes of the argument, that, when a local authority landlord decides to bring possession proceedings against a demoted tenant, the authority is acting so as to give effect to section 143D(1) within the meaning of section 6(2) of the HRA.
+Then the only question is whether section 143D(1) can be given effect in a way that is compatible with the demoted tenants article 8 Convention rights.
+If so, section 6(2) does not apply.
+For the reasons which we have already set out in detail, the answer is that section 143D(1) can unquestionably be given effect in a way that is compatible with the demoted tenants article 8 Convention rights.
+Most obviously, the local authority will give effect to section 143D(1) in a way that is compatible with those rights when it brings proceedings that are proportionate because the demoted tenant has, for instance, continued to act in a manner that causes a nuisance to his neighbours.
+That being so, section 6(2) of the HRA has no application to the decision of a local authority to bring or continue possession proceedings against a demoted tenant.
+In these circumstances, mutatis mutandis, the conclusion of Lord Mance in Doherty v Birmingham City Council [2009] 1 AC 367, 447, para 153, applies in the present situation: Accordingly, a local authority which fails to take into account Convention values when deciding whether or not to give any and if so what length of notice to quit cannot, in my opinion, be said to be acting so as to give effect to or enforce statutory provisions which are incompatible with the Convention rights.
+As the Council accept, the result therefore is that section 6(2) does not make it lawful for a local authority to fail to consider whether it would be proportionate to bring or continue such proceedings.
+The same must apply to a local authoritys decision to take possession proceedings against other occupiers who are not secure tenants.
+Conclusion on the third issue
+We are, accordingly, of the view that a County Court judge who is invited to make an order for possession against a demoted tenant pursuant to section 143D(2) can consider whether it is proportionate to make the order sought, and can investigate and determine any issues of fact relevant for the purpose of that exercise.
+It follows that the demoted tenancy regime in the 1996 Act is compatible with article 8.
+Having said that, there are two further points we should make.
+First, as already observed, there appears to be no express fetter on the nature of the grounds which a local authority can invoke for seeking possession against a demoted tenant.
+It would seem that, as in this case, local authorities seeking possession against demoted tenants in practice normally rely on repetitions of the type of incidents which gave rise to the demotion order.
+It may well be that the nature of the grounds upon which possession can be sought against demoted tenants is limited in that way, as a matter of law.
+However, that would involve implying some sort of limitation into the statute, as there is no express provision which would prevent a local authority relying on, say, the fact that it has a more deserving potential occupier of the premises in question.
+We say no more on the matter since the point does not arise in this appeal, and it was not the subject of any argument.
+Secondly, we have expressed reservations about the view that, in relation to possession claims generally, article 8 will assist an occupier only in highly exceptional circumstances.
+However, there are two features of possession claims under section 143D which enable us to express such a view in relation to these claims.
+First, the court will already have decided that it was reasonable (and therefore proportionate under article 8) to have made the demotion order, largely removing the tenants security of tenure.
+The court will have done this less than two years (and, no doubt, in some cases less than one year) before it is being asked to make an order for possession.
+The two sets of proceedings must be viewed as a whole for the purposes of article 8: Zehentner v Austria (App no 20082/02), para 54 (quoted at para 39 above).
+This highlights the fact that, while article 8 is still engaged at the second, possession order, stage, it would be difficult for the tenant successfully to invoke it, given that its requirements had been satisfied at the first, demotion order, stage.
+Secondly, as with introductory tenancies, the tenant will have been given the local authoritys reasons for deciding to seek possession.
+So he will have had the opportunity to challenge the decision and to have that challenge considered by the Panel.
+Fourth issue: application of these conclusions to the facts of this case
+For the reasons already explained, neither Judge Holman nor the Court of Appeal thought that they had jurisdiction either to consider whether the making of an order for possession in this case was necessary in a democratic society under article 8 (i e, whether it was proportionate to evict Mr Pinnock and Ms Walker from the property), or to resolve any disputes of fact between the parties in relation to that issue.
+As we have concluded that the Judge had jurisdiction to deal with both matters, there are two alternative courses that we could now take: we could address the proportionality issue ourselves, or we could remit the issue to the Manchester County Court.
+If we can take the former course, we should do so: it is more than three years since the demotion order was made in respect of Mr Pinnocks tenancy, and more than two years since these possession proceedings were started against him.
+Before they reached this court, they had already taken up three days of court time (plus the six hearing days before the Recorder who made the demotion order).
+However, we can only determine the issue of article 8 proportionality if we can do so without needing to hear further evidence.
+In order to consider which course to take, we must set out the relevant circumstances in a little more detail.
+After stating that, as the tenant, he was responsible for the behaviour of every person (including children) living in or visiting [his] home, Mr Pinnocks tenancy agreement contained covenants to the effect that neither he nor anyone residing with him would cause a nuisance, annoyance or disturbance to any other person or would harass any other person.
+Examples were given in the agreement of possible breaches of these covenants.
+They included offensive drunkenness and doing anything that interferes with the peace, comfort or convenience of others.
+The events which led the Recorder to conclude that a demotion order was justified were many and serious.
+In very summary terms, Anti Social Behaviour Injunctions (under section 152 of the 1996 Act) had been granted against Ms Walker and one of Mr Pinnocks sons, Clive, in 2003.
+Ms Walker had gone on to breach the injunction.
+Anti Social Behaviour Orders had been granted against another son, Devon, in 2002, and against his twin sons, Orreon and Orraine, in 2004.
+Each of them had been breached.
+Further, each of the five children had appeared before the criminal courts where they had been convicted of a variety of offences, including a racial Public Order Act offence, driving while disqualified and blackmail.
+The last of these involved the obtaining of some 1,000 by repeated, almost daily, threats of violence against a 16 year old youth.
+In a schedule to his judgment, the Recorder listed no fewer than 32 crimes or serious nuisances which were committed by Ms Walker and Mr Pinnocks five children between 1992 and 2006.
+There are some differences among the allegations relied on by the Council in its Notice served on 6 June 2008 under section 143E, the allegations relied on by the Panel which carried out the review pursuant to section 143F, the allegations relied on by Judge Holman, and the allegations relied on by the Court of Appeal.
+In our view, however, the Court of Appeals analysis of the relevant allegations was clearly correct.
+We would make three comments in relation to that analysis.
+First, there is nothing in the statutory provisions relating to the demoted tenancy regime which limits the particular grounds on which a local authority can rely when deciding to issue possession proceedings against a demoted tenant.
+Subject to the possible type of limitation discussed in para 106 above, we see no reason to restrict those grounds in a particular case, save by reference to rationality in domestic law and proportionality in the light of the Convention.
+This view is not based only on a reluctance to imply words or conditions into statutory provisions.
+It is also based on the point that, by demoting a tenancy, a court has decided that the tenant has forfeited any statutory protection for at least a year, and it seems wrong to imply a degree of protection back into the statute, unless it is necessary to do so e g, because the Convention requires it.
+We are therefore satisfied that a local authority is not limited to relying on matters which amount to breaches of the tenancy in question in order to justify a decision to issue and continue a claim for possession against a demoted tenant.
+Secondly, the Panel should be able to take into account all the available information when it assesses the justification for, and proportionality of, the local authority issuing a claim for possession against a demoted tenant.
+It seems obvious that before the Panel the tenant could raise events that happened after the Notice, and it is hard to see why the same should not apply to the landlord.
+In any event, if the tenant raises his article 8 Convention rights as a defence to possession proceedings, the court must consider all relevant issues.
+These must include a matter that arose after the date of the Notice.
+We are therefore satisfied that it is open to the Panel and to the court hearing the possession claim to take into account grounds which are not contained in the Notice.
+Thirdly, we can see no reason why the fact that a Notice contains a bad reason should destroy the landlords right to seek possession, unless, for instance, the bad reason somehow infects the good faith of the landlord.
+On that basis, the following matters are relied on as supporting the Councils decision to bring and maintain the possession proceedings against Mr Pinnock.
+First, on 22 September 2007, Clive Pinnock resisted arrest at the property and ran off.
+In due course he was convicted of resisting or obstructing a constable in the execution of his duty.
+Although this conduct was obviously an annoyance for the police officers involved, there was no evidence that it caused nuisance or annoyance to neighbours.
+Therefore it may not have constituted a breach of the tenancy agreement.
+Nevertheless, it was plainly relevant to the housing management functions of the Council.
+Further, as Stanley Burnton LJ pointed out, this behaviour was capable of causing nuisance or annoyance to any person.
+Secondly, Devon Pinnock pleaded guilty to causing death by dangerous driving, and driving a vehicle while disqualified and uninsured on 18 January 2008.
+A young woman died and two others were seriously injured in the incident which occurred 1.55 miles from the property.
+It is relevant to mention that Ms Walker blamed the police for the incident and did not accept that Devon was in any way responsible.
+As Stanley Burnton LJ said, this bore on whether she and Mr Pinnock were able and willing to exercise parental control over their children who lived at, or visited, the property so as to bring their anti social behaviour to an end.
+Thirdly, in February 2008, Orreon Pinnock committed a burglary of premises a few minutes walk from the property an offence which also involved an assault on a woman.
+He was convicted of this offence after the service of the Notice, but the Judge and the Court of Appeal rightly held that this was a relevant factor when deciding whether to issue and prosecute possession proceedings against Mr Pinnock.
+Judge Holman thought that the second incident (but only in so far as it involved Ms Walker blaming the police and excusing Devon) and the third incident could be relied on by the Council as a ground for justifying its claim for possession against Mr Pinnock.
+He therefore concluded, at para 70, that there was material before the review panel . entitling it to uphold the decision to terminate.
+To much the same effect, Stanley Burnton LJ said he could not see any basis for a finding that the review panels decision was one that no reasonable person could consider appropriate, and if the judge had had jurisdiction to review that decision I would have upheld his decision to uphold it: [2009] EWCA Civ 852, para 67.
+Mr Pinnocks case is that it would be disproportionate to evict him (now a pensioner) and Ms Walker (still in employment) from their home of over 30 years, given that none of their five children lives with them, and that there have been no further incidents since February 2008.
+In this connection Mr Drabble QC made a number of points which he said that the Panel, Judge Holman and the Court of Appeal had failed to take into account.
+None of the matters relied on, he said, constituted a breach of the tenancy agreement.
+Ms Walker had committed no nuisance, offence or harassment since 2003, and there was no suggestion that she or Mr Pinnock is likely to commit any nuisance or crime in the future.
+As for the children save for Orreon, they did not reside in the property at the date of the offences relied on.
+Further, any crime or nuisance which they might commit in the area in the future could not be attributable to the tenancy continuing, as they do not live in the property.
+For the same reason, Mr Pinnock could not be treated as responsible for their behaviour.
+Moreover, there was no evidence that the children were, or would be, particularly drawn to the area by their parents living at the property.
+In any event, other remedies such as Anti Social Behaviour Orders and Injunctions, and orders excluding the children from the area under section 153C of the 1996 Act, would be more effective deterrents.
+We see the force of these points.
+But, unless there is some dispute of fact which needs to be resolved, we are not persuaded that this is a case where the occupiers of the property have any real prospect of successfully relying on article 8 proportionality, or indeed on the contention that the decision of the Council to issue and maintain possession proceedings against them was unreasonable.
+The history of crime, nuisance and harassment on the part of those living at the property in the period leading up to the demotion order made in June 2007 was extraordinary in its extent and persistence.
+Were it not for Mr Pinnock being innocent of any such conduct on his own account, we doubt whether the Recorder would have thought it right to refuse the Councils original claim for possession.
+As it was, he made it clear that the demotion order represented what was very much a last chance for Mr Pinnock (and for Ms Walker).
+Despite this being their last chance, as we have explained, there were incidents at or near the property.
+Clive resisted arrest at the property and ran away from the police (of which he was convicted).
+Devon caused death by dangerous driving in the vicinity of the property and then ran away (of which he was convicted).
+Ms Walker refused to accept that Devon was in any way responsible for this and, instead, blamed the police.
+Orreon committed a burglary near the property (and was later imprisoned).
+In short, there were three serious incidents in a year, one in the property, two in its immediate vicinity.
+Mr Pinnocks children were responsible for all of them.
+Moreover, there is every sign that Ms Walker, at least, has learnt nothing.
+All this happened under the shadow of a demotion order.
+The argument that none of the children lives in the property any longer is of scant assistance to Mr Pinnock since his case is that none of them has lived there since the demotion order was made.
+Even if that is true, it is clear that the children visit the property, and, unfortunately, when they do, they appear to commit crimes and make a nuisance of themselves in the vicinity.
+Furthermore, there is no guarantee that at least some of the children will not stay at the property on a temporary, intermittent or permanent basis.
+For the Council to evict Mr Pinnock on such grounds may well seem to him harsh.
+However, in the light of the history, the demotion order, the interests of their neighbours, and the Councils right and duty to manage and allocate its housing stock, the decision cannot be characterised as unreasonable or disproportionate.
+If some of the children did in fact live in the property, then Mr Pinnock has been dishonest, and the Councils case is even stronger.
+In this connection it should be said that there is good reason to think that Devon did live in the property.
+Mr Pinnocks evidence to the Panel was that Devon had moved out about five years earlier, but that evidence had been given to, and rejected by, the Recorder not least because Devon had given the property as his address to the criminal courts in July 2005, June 2006, and March 2007.
+When he appeared in court on the charge of causing death by dangerous driving in January 2008, he again gave his address as the property.
+The only new evidence before the Panel disputing his residence at the property was a statement by the mother of his girlfriend.
+But she, too, said that he had ceased to live at the property four or five years previously.
+It is thus hard to see how any tribunal could conclude that he did not reside there, but, as the Judge said, the Panel ducked the issue of residence in their written decision.
+The fact that some (or even all) of the grounds justifying the rationality and proportionality of the Councils decision to seek possession may not have involved any breach of the tenancy agreement does not give rise to a problem.
+There is no requirement in the 1996 Act that they should, and, as already mentioned, there is no warrant for implying any such requirement into the statute.
+The fact that Mr Pinnock may not be responsible for the incidents is not of great significance: the order for possession was not sought or made to punish him.
+The fact that there may be other remedies to deal with the children is also of little force: rather than seeking ASBOs or ASBIs to keep them out of the vicinity, it is scarcely irrational or disproportionate to decide to remove their parents, whom they undoubtedly visit, even if (which is an unresolved issue) they do not live with them.
+Conclusion
+In these circumstances, it is unnecessary to remit this case for the question of proportionality to be determined.
+The only issues of fact which are in dispute are whether Devon lived at the property at the time he caused death by dangerous driving and whether Clives resisting his arrest actually caused any nuisance locally.
+For the reasons just given in para 128 above, it is unnecessary to decide whether Devon was living at the property at the relevant time.
+Equally, it is unnecessary to establish whether Clives action actually resulted in a nuisance: as Stanley Burnton LJ said, it is sufficient that he resisted arrest and that this could have caused a nuisance.
+Hilary Term [2011] UKSC 6 On appeal from: [2009] EWCA Civ 852 JUDGMENT Manchester City Council (Respondent) v Pinnock (Appellant) (no. 2) before Lord Phillips, President Lord Hope, Deputy President Lord Rodger Lord Walker Lady Hale Lord Brown Lord Mance Lord Neuberger Lord Collins JUDGMENT GIVEN ON 9 February 2011 Heard on 5, 6, 7 and 8 July 2010 Appellant Richard Drabble QC James Stark (Instructed by Platt Halpern) Intervener (Secretary of State for Communities and Local Government) Daniel Stilitz QC Ben Hooper (Instructed by Treasury Solicitor) Respondent Andrew Arden QC Jonathan Manning (Instructed by Manchester City Council ) Intervener (Equality and Human Rights Commission) Jan Luba QC (Instructed by Equality and Human Rights Commission) LORD NEUBERGER 1.
+Following the handing down of our judgment on 3 November 2010, the parties have made written submissions on two issues, namely the terms of the consequential order which the court should make, and the allocation of costs.
+The issue relating to the terms of the order gives rise to a point of a little difficulty and potentially more general application.
+It therefore seems right to set out our conclusions and reasons on the two issues in this short further judgment.
+Introductory 2.
+In summary terms, the facts giving rise to the appeal were as follows.
+Mr Pinnock was a demoted tenant of residential premises (and therefore had limited statutory protection), and his landlord, Manchester City Council, applied to the Manchester County Court for an order for possession against him.
+In a judgment given on 22 December 2008, His Honour Judge Holman rejected Mr Pinnocks contention that the court had to be satisfied that article 8 of the Convention was satisfied before making an order for possession, and therefore he did not consider whether it was proportionate to make an order for possession against Mr Pinnock.
+The Judge accordingly made an order requiring Mr Pinnock to deliver up possession of the premises on 12 January 2009.
+He also gave Mr Pinnock permission to appeal, and stayed enforcement of the possession order provided that the notice of appeal was served by 26 January 2009. 3.
+Mr Pinnock served a notice of appeal by that date, arguing that the Judge should have taken into account article 8, and therefore should have considered whether it was proportionate to order Mr Pinnock to deliver up possession of the premises.
+The Court of Appeal rejected his appeal, [2009] EWCA Civ 852; [2010] 1 WLR 713, and Mr Pinnock appealed to the Supreme Court.
+The Court of Appeal did not continue the stay imposed by the Judge, but the parties agreed that the possession order would not be enforced pending the outcome of the appeal to this court. 4.
+In our decision, [2010] UKSC 45; [2010] 3 WLR 1441, we held that the Judge and the Court of Appeal were wrong in taking the view that article 8 could not be raised by Mr Pinnock, and that, in those circumstances, there were two alternative courses that we could take: we could address the proportionality issue ourselves, or we could remit the issue to the Manchester County Court [2010] 3 WLR 1441, para 108.
+We then went on to decide that we would take the former course, because, for the reasons set out at [2010] 3 WLR 1441, paras 119 124 and 127 130, we were not persuaded that this is a case where the occupiers of the property have any real prospect of successfully relying on article 8 proportionality, or indeed on the contention that the decision of the Council to issue and maintain possession proceedings against them was unreasonable [2010] 3 WLR 1441, para 125.
+The form of order 5.
+At any rate at first sight, the terms of the order we should make seem to present no problem: the Judge made an order for possession, which the Court of Appeal upheld, which it can be said we have upheld, albeit for different reasons, and accordingly we should simply dismiss the appeal.
+However, the Council argues that this apparently simple course would produce an unjust result, which arises form the transitional provisions of the Housing and Regeneration Act 2008. 6.
+In this case, the order for possession made by Judge Holman took effect on 12 January 2009; under section 143D(3) of the Housing Act 1996 this meant that Mr Pinnocks demoted tenancy came to an end on that date.
+His status thereafter was that of a tolerated trespasser, as discussed in Austin v Southwark London Borough Council [2010] UKSC 28, [2010] 3 WLR 144. 7.
+Section 299 of, and schedule 11 to, the 2008 Act abolished the concept of tolerated trespass in relation to various types of tenancy, including demoted tenancies, by providing that, where an order for possession is made, the tenancy comes to an end on the date that the order is executed rather than (as was previously the position) the date on which the tenant is to give up possession pursuant to the order.
+In the case of demoted tenancies this was achieved by the insertion of a new subsection (1A) into section 143D of the 1996 Act see para 13 of schedule 11 to the 2008 Act. 8.
+These provisions of the 2008 Act, which were prospective in their effect, came into force on 20 May 2009 (pursuant to article 2 of the Housing and Regeneration Act 2008 (Commencement No.5) Order 2009 SI 2009/1261), some eighteen weeks after Judge Holmans order for possession took effect.
+If that order is confirmed, the effect will be, by virtue of paras 16, 19 and 26 of Schedule 11 to the 2008 Act, that on 20 May 2009, a new demoted tenancy will have been created in favour of the former tenant and tolerated trespasser.
+On the basis that that might indeed prove to be the position, the Council served a notice of proceedings under section 143E of the 1996 Act, in respect of which Mr Pinnock requested a review under section 143F (as explained at [2010] 3 WLR 1441, para 11).
+Further proceedings on that notice have been adjourned. 9.
+The Council contends that, although it has protected its position if we simply dismiss Mr Pinnocks appeal and effectively affirm the orders of the Judge and the Court of Appeal, it would be contrary to any rational legal principle to require the Council to incur the expense, effort and delay, as well as any possible uncertainty of outcome, of further possession proceedings against Mr Pinnock based on his new demoted tenancy, given the procedure that has already been undertaken, as described in [2010] 3 WLR 1441, paras 14 17. 10.
+Accordingly, the Council argues that we should vary Judge Holmans order to adjust the date on which he is to deliver up possession from 12 January 2009 to 21 May 2009. 11.
+Mr Pinnock does not challenge this proposal on its merits, but contends that, for two reasons, we have no jurisdiction to make the variation sought by the Council.
+The first reason is said to be that we cannot in 2011 retrospectively amend Judge Holmans order, made in December 2008, in order to deprive Mr Pinnock of a tenancy which statute gave to him on 20 May 2009; the second reason is that, by virtue of section 89(1) of the Housing Act 1980, Judge Holman was precluded from making an order for possession which took effect more than six weeks after 22 December 2008, when he made the order for possession, and we cannot amend Judge Holmans order in a way which would mean that, albeit retrospectively, it would conflict with that provision. 12.
+Mr Pinnock is right not to challenge the good sense of the Councils argument.
+There may be force in the two technical points that he takes, particularly the second, but there is no need for us to consider these.
+The wide terms of Rule 29(1) of the Supreme Court Rules 2009 permit us to adopt an alternative way of giving effect to the Councils justified concerns which is not open to such objections. 13.
+We propose to set aside the order for possession made by Judge Holman, and substitute a fresh order for possession to take effect on 10 March 2011.
+The effect of this will be to preserve Mr Pinnocks original demoted tenancy, which started on 8 June 2007 (as explained at [2010] 3 WLR 1441, para 16) and which has continued pending the resolution of these proceedings.
+It will come to an end when possession is obtained against him pursuant to our order for possession. 14.
+This course is consistent with the reasoning in our judgment.
+We decided that the Judge and the Court of Appeal had reached their conclusions on an erroneous basis, and accordingly we had to make our own assessment as to whether an order for possession should be made.
+Thus, we were effectively overruling the order for possession made and affirmed below, and were concluding that we should make our own order for possession.
+That is well demonstrated by the passage quoted from [2010] 3 WLR 1441, paras 108 and 125 quoted in para 4 above.
+If we had taken the course of remitting the case to the County Court, we would have set aside the original order for possession, and the County Court would in due course have made a fresh order for possession (for the reasons we gave at [2010] 3 WLR 1441, paras 119 130): it would be anomalous if a different result obtained because we decided that we could make the order for possession ourselves without remitting it. 15.
+In those circumstances, to set aside the orders below and make our own order for possession more accurately reflects our reasoning than simply dismissing Mr Pinnocks appeal. 16.
+Quite apart from this, it would seem rather curious if we could not make an order which achieves the outcome for which the Council contends.
+If the Judge had dismissed the claim for possession, and had been upheld in the Court of Appeal, our decision that an order for possession should be made would have led to no difficulties for the Council.
+It would seem a bit odd if the position of the Council were to be prejudiced by the fact that it in fact succeeded in both of the courts below.
+The costs 17.
+As to the issue of costs, the dispute, in summary terms, is as follows.
+The Council seeks an order for costs against Mr Pinnock, on the ground that, as between the parties, the ultimate issue was whether the Council was entitled to claim possession of the premises, and its claim succeeded at every stage, most importantly in this court.
+On the other hand, Mr Pinnock argues for an issue based approach, contending that the real issue between the parties, which resulted in most of the costs and justified the case coming to the Supreme Court, was whether he could rely on article 8, and, as he won on that point, the correct order is that the Council pays 50% of his costs, at least in the Supreme Court. 18.
+In our view, there should be no order for costs in the Supreme Court or in the Court of Appeal, and the order for costs made in favour of the Council in the County Court should stand.
+As to the order in the County Court, the Council claimed possession while Mr Pinnock resisted the claim, and the effect of our decision is that the claim succeeds, so an order for costs in favour of the Council should follow, absent a good reason to the contrary, and no such reason appears to exist.
+The decision to make no order for costs in the Court of Appeal and in this court is arrived at on a somewhat rough and ready basis, but it appears to us to reflect the relative degree of success enjoyed by each party on appeal, and therefore the overall justice of the position.
+The effect of the appeal process is that the Council has succeeded against Mr Pinnock on the ultimate issue between the parties, namely whether it is entitled to maintain its right to possession, whereas Mr Pinnock has succeeded against the Council in establishing a fundamental general principle, namely that article 8 can be relied on by someone whose home is the subject of a possession claim.
+Conclusion 19.
+In these circumstances, we set aside the order for possession made by Judge Holman, we make an order for possession to take effect on 10 March 2011, we make no order for costs in this court or the Court of Appeal, and the order for costs made by Judge Holman stands.
+No doubt the parties can agree any other terms of the order which are outstanding.
+We shall accordingly dismiss the appeal and uphold the order for possession made against Mr Pinnock, albeit for reasons that are rather different from those of Judge Holman and the Court of Appeal.
+Mr Pinnock is, and was, entitled to an opportunity of having the proportionality of the measure determined by a court, and, if necessary for that purpose, of having any relevant issue of fact resolved.
+That right was not acknowledged by the courts below (for wholly understandable reasons).
+We have, however, afforded him the opportunity to have the proportionality of the possession order considered.
+Having considered the issue, we are satisfied that it was proportionate to make the order, irrespective of the truth relating to the two possible issues of fact between Mr Pinnock and the Council.
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+This appeal raises a question as to the scope of the exceptions to the principle that statements made in the course of without prejudice negotiations are not admissible in evidence (the without prejudice rule).
+Specifically, the question is whether facts which (a) are communicated between the parties in the course of without prejudice negotiations and (b) would, but for the without prejudice rule, be admissible as part of the factual matrix or surrounding circumstances as an aid to construction of an agreement which results from the negotiations, should be admissible by way of exception to the without prejudice rule.
+The dispute between the parties relates to a series of forward freight agreements (FFAs) and is set against the background of the extraordinary volatility of the freight markets in 2008.
+Capesize bulk carriers are large vessels, so called because they were historically too large to pass through the Suez Canal.
+The Baltic Exchange index of daily rates of time charter hire for such vessels fell from about US$200,000 per day in May 2008 to US$3,000 per day in December 2008.
+Each FFA was a swap agreement which consisted of a bet on whether the settlement rate (being the average of the published rates, as stated in the relevant index, for each index publication day in the relevant settlement month) would, on specified future settlement dates, be higher or lower than the contract rate as defined in the FFA.
+Under each FFA the seller bet that the market rate on the settlement dates would be lower than the contract rate and the buyer bet that it would be higher.
+If it was higher on a given settlement day, the seller was obliged to pay the difference between the two rates multiplied by the contract period, which was usually the number of days in the month.
+If it was lower the buyer was obliged to pay the seller the appropriate amount.
+The relevant FFAs had settlement days at the end of one or more months within the period May to December 2008.
+At the end of each month all settlement sums due under all the FFAs were to be netted off and payment made by the indebted party under the net position to the other party. (I use the word bet because it was used by the parties in the agreed statement of facts and issues and because it appears to me to be accurate, but in doing so I do not intend to suggest that the FFAs were unenforceable or that FFAs are not a commonly used method of hedging against market fluctuations.)
+All the FFAs were on the same underlying terms.
+As at the end of May 2008 the appellants, whom I will together call TMT, were short against the market and, as a result of the netting off process, owed the respondent (Oceanbulk) more than US$40m for that month and were likely to owe a further US$30m for the following month.
+If Oceanbulk had terminated the FFAs on the basis of an event of default, TMT would have been potentially liable for some US$300 to 400m by way of liquidated damages.
+TMT failed to pay the May 2008 instalment when it fell due and sought time for payment.
+The parties entered into settlement negotiations which were expressed to be without prejudice.
+They were between the parties representatives and solicitors.
+The negotiations were partly in writing but included two lengthy meetings on 19 and 20 June 2008 which were attended both by the parties representatives and their solicitors.
+The parties entered into a written settlement agreement dated 20 June, in which they agreed (among other things): (a) to crystallise 50 per cent of each of the FFAs for 2008 based on the difference between the contract rate and the average of the ten day closing prices for the relevant Baltic indices from 26 June 2008; and (b) to co operate to close out the 50 per cent balance of the open 2008 FFAs against the market on the best terms achievable by 15 August 2008.
+There is no issue between the parties as to the existence or terms of the settlement agreement.
+It is common ground that all the terms of the agreement between them are accurately recorded in the written settlement agreement.
+For that reason neither party seeks rectification of it.
+There is however a dispute between the parties as to the true construction of one of the terms of the agreement.
+The issue which divides the parties in this appeal is whether it is permissible to refer to anything written or said in the course of the without prejudice negotiations as an aid to the interpretation of the agreement.
+The issues
+Construction of the settlement agreement
+Oceanbulks claim is based on the alleged breach by TMT of clause 5 of the agreement, which provides as follows: In respect of FFA open contracts between TMT interests and [Oceanbulk] for 2008, the parties shall crystallise within the ten trading days following 26 June 2008, as between them, 50 per cent of those FFAs at the average of the ten days closing prices for the relevant Baltic Indices from 26 June 2008 and will co operate to close out the balance of 50 per cent of the open FFAs for 2008 against the market on the best terms achievable by 15 August 2008.
+The parties crystallised 50 per cent of the contracts within ten days following 26 June.
+There is accordingly no dispute about that part of the clause.
+However, Oceanbulk says that TMT is in breach of the second part of the clause (the co operation term) on the basis that, so it is said, TMT did not co operate to close out the balance of 50 per cent of the open FFAs for 2008 against the market on the best terms achievable by 15 August.
+By way of damages Oceanbulk claims the difference between the sums it says would have been owed by TMT had the FFAs been closed out by 15 August, when the market was still in Oceanbulks favour, and the amount that is said to be due to TMT under the FFAs as a result of those positions having remained open.
+The loss arises (in part at least) out of the dramatic fall in the market to which I have referred.
+Oceanbulks case is that, on the true construction of the co operation term, the parties obligation was to close out the open FFAs bilaterally, that is as between Oceanbulk and TMT.
+TMTs case is that the meaning of the term depends upon a fact which it says was in the contemplation of both parties: viz that the FFAs between Oceanbulk and TMT were sleeved by Oceanbulk.
+In para 5 of his judgment Andrew Smith J (the judge) quoted Oceanbulks summary of what the parties meant by sleeving, which the parties have agreed is sufficient for the purposes of this appeal.
+It is in these terms: Sleeving is an arrangement by which one party (party B) will, at the request of another party (party A), enter into a specific FFA trade with a third party (party C) and party B will then replicate that position back to back with party A.
+The usual reasons for such an arrangement are that (i) party C would not be willing to trade with party A (eg because of perceived counterparty risk) and/or (ii) party A does not wish to reveal to the market that he is seeking that position, eg because he is concerned that he will move the market.
+However, once the contracts have been concluded then (absent eg an agency arrangement), the two contracts are independent and each party acts as a principal: the contracts do not necessarily remain coupled.
+In para 18(1)(ii) of the re re amended defence and counterclaim TMT pleads that, in the context of the relevant negotiations, the words co operate to close out against the market mean that TMT would (if Oceanbulk so requested) assist Oceanbulk to agree fixed figures payable by Oceanbulk to counterparties to close out Oceanbulks opposite market positions; that Oceanbulk would then close out those positions; and that thereafter the FFAs between Oceanbulk and TMT would be crystallised at rates to be agreed.
+As it is put in the agreed statement of facts and issues, there is therefore a dispute as to whether the closing out process envisaged by the co operation term was bilateral (on Oceanbulks case) or trilateral (on TMTs case).
+The phrase opposite market position is defined in para 18(1)(i) of TMTs re re amended defence and counterclaim by references to sleeves.
+TMT pleads that both parties understood that, in respect of all or substantially all the FFAs between Oceanbulk and TMT, Oceanbulk held an opposite position with other participants in the FFA market so that the liabilities TMT had to Oceanbulk were sleeved by Oceanbulk in that they were equal in amount to liabilities Oceanbulk had to counterparties under equivalent swap agreements.
+In support of its case that the parties understood that the FFAs were sleeved, TMT relies upon four representations made or allegedly made by Mr Pappas on behalf of Oceanbulk.
+They are pleaded in para 18(1)(i) of the re re amended defence and counterclaim and are summarised in the agreed statement of facts and issues. i) In an email dated 1 June 2008 from Mr Pappas to Mr Su of TMT he said that Oceanbulk was expecting US$40.5m from TMT on Friday, 5 June and that most of this position is in any case due to sleeves we did for you when you asked us in the past to assist.
+It is common ground that this was an open communication and that it is arguably admissible in evidence on the issue of construction as part of the factual matrix. ii) TMT says that at a meeting on 5 June Mr Pappas said that he had sleeved TMTs trading at Mr Sus request.
+It is common ground that this was an open meeting and that, to the extent that any such representation was made, it is arguably admissible in evidence on the same basis.
+In an email dated 10 June from Mr Pappas to Mr Su he said that Oceanbulk had to pay US$40.5m on TMTs behalf against zero receipts.
+The judge held that this email was sent without prejudice and there was no appeal against that finding. iii) iv) TMT says that at meetings on 19 and 20 June Mr Pappas again asserted (or allowed the negotiations to proceed on the assumption) that the FFAs were sleeved.
+It is common ground that these meetings were without prejudice.
+The issue between the parties is whether TMT are entitled to rely upon representations or alleged representations iii) and iv) as an aid to interpretation of the agreement.
+Oceanbulk seeks to exclude the evidence relating to them on the ground that they were made in the course of without prejudice negotiations.
+The construction of clause 5 will of course be a matter for the trial judge.
+At para 35 of his judgment the judge expressed the view that the evidence was potentially of significant probative value and might possibly be crucial upon an issue of construction that is central to these proceedings.
+By contrast, in the Court of Appeal, Longmore LJ said at para 22 that it was not entirely easy to see how the facts relied upon by TMT assisted the construction of clause 5.
+It is not for this court to express a view on that question in this appeal.
+For present purposes it is sufficient to note that, at any rate at this interlocutory stage, Oceanbulk does not seek to exclude the evidence simply on the ground that it does not form part of the admissible factual matrix.
+It follows that it must be assumed for the purpose of this appeal that, subject to the question whether it is excluded by the without prejudice rule, the evidence will be admissible at the trial on the issue of construction of the agreement.
+Indeed, given the conclusion reached by the judge, it must be assumed that (in the judges phrase already quoted) the evidence is potentially of significant probative value and might possibly be crucial upon an issue of construction that is central to these proceedings.
+The judge held that the evidence was admissible notwithstanding the without prejudice rule.
+The majority of the Court of Appeal (Longmore and Stanley Burnton LJJ) allowed Oceanbulks appeal, holding that the evidence was not admissible.
+Ward LJ agreed with the judge and thus dissented.
+This appeal is brought with the permission of this court.
+Estoppel
+pleads an estoppel in these terms: In para 18(1)(ia) of the re re amended defence and counterclaim TMT In its amended reply and defence to counterclaim Oceanbulk has denied that all the transactions were in fact sleeved. [TMT] will say that for the reasons pleaded in para 18(1)(i) above Oceanbulk is estopped from denying that the swap agreements Oceanbulk had entered into with [TMT] were sleeved transactions; alternatively Oceanbulk is estopped from denying that in negotiating and entering into the settlement agreement the parties were proceeding on the common assumption that they were sleeved transactions.
+In support of that plea TMT seeks to rely upon representations iii) and iv).
+Oceanbulk says that such reliance is excluded by the without prejudice rule.
+Remoteness
+Essentially the same issues arise under this head.
+In para 27(2)(iii) of the re re amended defence and counterclaim TMT denies that Oceanbulk is entitled to recover the loss and damage it asserts because: (1) As pleaded in para 18 above, clause 5 of the settlement agreement was agreed in reliance upon and on the basis of Mr Pappass representation or representations on behalf of Oceanbulk and the parties understood that the swap agreements between Oceanbulk and [TMT] were sleeved transactions with the Oceanbulk opposite market positions; and (2) Accordingly, it was or should have been in the parties reasonable contemplation that closing out the 2008 FFAs left the risk of the market rising and the benefit of the market falling on [TMT] but no risk or benefit on Oceanbulk because Oceanbulk was (until completion of the closing out process) protected by Oceanbulks opposite market positions; accordingly, the loss which Oceanbulk seeks to claim is too remote and/or is not loss for which [TMT]
+had assumed responsibility
+TMT seeks to rely upon representations iii) and iv) in support of the case that Oceanbulks loss is too remote to be recoverable and/or that it is not a loss for which TMT assumed responsibility.
+Oceanbulk says that TMT is not entitled to rely upon those representations for the same reasons as stated above, namely that they were made (if at all) in the course of without prejudice negotiations.
+Without prejudice the legal principles
+The approach to without prejudice negotiations and their effect has undergone significant development over the years.
+Thus the without prejudice principle, or, as it is usually called, the without prejudice rule, initially focused on the case where the negotiations between two parties were regarded as without prejudice to the position of each of the parties in the event that the negotiations failed.
+The essential purpose of the original rule was that, if the negotiations failed and the dispute proceeded, neither party should be able to rely upon admissions made by the other in the course of the negotiations.
+The underlying rationale of the rule was that the parties would be more likely to speak frankly if nothing they said could subsequently be relied upon and that, as a result, they would be more likely to settle their dispute.
+Thus in Walker v Wilsher (1889) 23 QBD 335 at 337 Lindley LJ asked what was the meaning of the words without prejudice in a letter written without prejudice and answered the question in this way: I think they mean without prejudice to the position of the writer of the letter if the terms he proposes are not accepted.
+If the terms proposed in the letter are accepted a complete contract is established, and the letter, although written without prejudice, operates to alter the old state of things and to establish a new one.
+It is now well settled that the rule is not limited to such a case.
+This can be seen from a series of decisions in recent years, including most clearly from Cutts v Head [1984] Ch 290, Rush & Tompkins Ltd v Greater London Council [1989] AC 1280, Muller v Linsley & Mortimer [1996] PNLR 74, Unilever plc v The Procter & Gamble Co [2000] 1 WLR 2436 and most recently Ofulue v Bossert [2009] UKHL 16, [2009] AC 990.
+In particular, in Unilever Robert Walker LJ (with whom Simon Brown LJ and Wilson J agreed) set out the general position with great clarity at pp 2441 2444 and 2448 2449.
+He first quoted from Lord Griffiths speech in Rush & Tompkins, with which the other members of the appellate committee agreed.
+Rush & Tompkins is important because it shows that the without prejudice rule is not limited to two party situations or to cases where the negotiations do not produce a settlement agreement.
+It was held that in general the rule makes inadmissible in any subsequent litigation connected with the same subject matter proof of any admissions made with a genuine intention to reach a settlement and that admissions made to reach a settlement with a different party within the same litigation are also inadmissible, whether or not settlement is reached with that party.
+The passage quoted by Robert Walker LJ is at p 1299 of the report of Rush & Tompkins as follows: The without prejudice rule is a rule governing the admissibility of evidence and is founded upon the public policy of encouraging litigants to settle their differences rather than litigate them to a finish.
+It is nowhere more clearly expressed than in the judgment of Oliver LJ in Cutts v Head [at] 306: That the rule rests, at least in part, upon public policy is clear from many authorities, and the convenient starting point of the inquiry is the nature of the underlying policy.
+It is that parties should be encouraged so far as possible to settle their disputes without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiations (and that includes, of course, as much the failure to reply to an offer as an actual reply) may be used to their prejudice in the course of the proceedings.
+They should, as it was expressed by Clauson J in Scott Paper Co v Drayton Paper Works Ltd (1927) 44 RPC 151, 156, be encouraged fully and frankly to put their cards on the table.
+The public policy justification, in truth, essentially rests on the desirability of preventing statements or offers made in the course of negotiations for settlement being brought before the court of trial as admissions on the question of liability.
+The rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence.
+Robert Walker LJ observed at p 2442D that, while in that well known passage the rule was recognised as being based at least in part on public policy, its other basis or foundation is in the express or implied agreement of the parties themselves that communications in the course of their negotiations should not be admissible in evidence if, despite their negotiations, a contested hearing ensues.
+Robert Walker LJ further noted that these two justifications for the rule are referred to in some detail by Hoffmann LJ in Muller v Linsley & Mortimer.
+At pp 2442 and 2443 he quoted two substantial passages from the judgment of Hoffmann LJ in that case which it is not necessary to repeat here because in this appeal the issue is not so much about the scope of the rule as about the extent of the exceptions to it.
+It is therefore sufficient to quote two paragraphs from the judgment of Robert Walker LJ which show that the rule is not limited to admissions but now extends much more widely to the content of discussions such as occurred in this case.
+He said this at pp 2443H 2444C: Without in any way underestimating the need for proper analysis of the rule, I have no doubt that busy practitioners are acting prudently in making the general working assumption that the rule, if not sacred (Hoghton v Hoghton (1852) 15 Beav 278, 321), has a wide and compelling effect.
+That is particularly true where the without prejudice communications in question consist not of letters or other written documents but of wide ranging unscripted discussions during a meeting which may have lasted several hours.
+At a meeting of that sort the discussions between the parties representatives may contain a mixture of admissions and half admissions against a partys interest, more or less confident assertions of a partys case, offers, counter offers, and statements (which might be characterised as threats, or as thinking aloud) about future plans and possibilities.
+As Simon Brown LJ put it in the course of argument, a threat of infringement proceedings may be deeply embedded in negotiations for a compromise solution.
+Partial disclosure of the minutes of such a meeting may be, as Leggatt LJ put it in Muller, a concept as implausible as the curates egg (which was good in parts).
+Finally, at pp 2448 2449 Robert Walker LJ expressed his conclusions on the cases as follows: [they] make clear that the without prejudice rule is founded partly in public policy and partly in the agreement of the parties.
+They show that the protection of admissions against interest is the most important practical effect of the rule.
+But to dissect out identifiable admissions and withhold protection from the rest of without prejudice communications (except for a special reason) would not only create huge practical difficulties but would be contrary to the underlying objective of giving protection to the parties in the words of Lord Griffiths in Rush & Tompkins [at p 1300] to speak freely about all issues in the litigation both factual and legal when seeking compromise and, for the purpose of establishing a basis of compromise, admitting certain facts.
+Parties cannot speak freely at a without prejudice meeting if they must constantly monitor every sentence, with lawyers or patent agents sitting at their shoulders as minders.
+The without prejudice rule is thus now very much wider than it was historically.
+Moreover, its importance has been judicially stressed on many occasions, most recently perhaps in Ofulue, where the House of Lords identified the two bases of the rule and held that communications in the course of negotiations should not be admissible in evidence.
+It held that the rule extended to negotiations concerning earlier proceedings involving an issue that was still not resolved and refused, on the ground of legal and practical certainty, to extend the exceptions to the rule so as to limit the protection to identifiable admissions.
+The speeches of the majority contain a number of references to the importance of the rule which are relied upon on behalf of Oceanbulk.
+I take some examples.
+Lord Hope said at para 12: The essence of [the rule] lies in the nature of the protection that is given to parties when they are attempting to negotiate a compromise.
+It is the ability to speak freely that indicates where the limits of the rule should lie.
+Far from being mechanistic, the rule is generous in its application.
+It recognises that unseen dangers may lurk behind things said or written during this period, and it removes the inhibiting effect that this may have in the interests of promoting attempts to achieve a settlement.
+It is not to be defeated by other considerations of public policy which may emerge later, such as those suggested in this case, that would deny them that protection.
+In para 2 Lord Hope had said that where a letter is written without prejudice during negotiations conducted with a view to a compromise, the protection that these words claim will be given to it unless the other party can show that there is a good reason for not doing so.
+In para 43 Lord Rodger recognised the breadth of the without prejudice rule and rejected the proposed exception.
+So too did Lord Walker.
+He said at para 57 that he would not restrict the without prejudice rule unless justice clearly demands it.
+This seems to me to be entirely consistent with the approach of Lord Griffiths in Rush & Tompkins at p 1300C, where he said that the rule is not absolute and that resort may be had to the without prejudice material for a variety of reasons where the justice of the case requires it.
+See also per Lord Neuberger at para 89, endorsing the passage from the judgment of Robert Walker LJ in Unilever at pp 2448 2449 (referred to above).
+The exceptions to the without prejudice rule
+The cases to which I have referred (and others) show that, because of the importance of the without prejudice rule, its boundaries should not be lightly eroded.
+The question in this appeal is whether one of the exceptions to the rule should be that facts identified during without prejudice negotiations which lead to a settlement agreement of the dispute between the parties are admissible in evidence in order to ascertain the true construction of the agreement as part of its factual matrix or surrounding circumstances.
+This issue must be put in the context of the exceptions which have already been permitted to the rule.
+In this connection I again turn to the illuminating judgment of Robert Walker LJ in Unilever.
+Having set out the general principles at pp 2443 2444 (quoted above), which included the general working assumption that the rule has a wide and compelling effect, he said at p 2444C D that there are nevertheless numerous occasions on which the rule does not prevent the admission into evidence of what one or both parties said or wrote in the course of without prejudice negotiations.
+Robert Walker LJ then set out (at pp 2444D 2446D) a list of what he called the most important instances.
+He described them thus (omitting some of the references): (1) when the issue is whether without prejudice communications have resulted in a concluded compromise agreement, those communications are admissible. (2) Evidence of the negotiations is also admissible to show that an agreement apparently concluded between the parties during the negotiations should be set aside on the ground of misrepresentation, fraud or undue influence.
+Underwood v Cox (1912) 4 DLR 66, a decision from Ontario, is a striking illustration of this. (3) Even if there is no concluded compromise, a clear statement which is made by one party to negotiations and on which the other party is intended to act and does in fact act may be admissible as giving rise to an estoppel.
+That was the view of Neuberger J in Hodgkinson & Corby Ltd v Wards Mobility Services [1997] FSR 178, 191 and his view on that point was not disapproved by this court on appeal. (4) Apart from any concluded contract or estoppel, one party may be allowed to give evidence of what the other said or wrote in without prejudice negotiations if the exclusion of the evidence would act as a cloak for perjury, blackmail or other unambiguous impropriety But this court has, in Forster v Friedland and Fazil Alizadeh v Nikbin, [1993 CAT 205], warned that the exception should be applied only in the clearest cases of abuse of a privileged occasion. (5) Evidence of negotiations may be given (for instance, on an application to strike out proceedings for want of prosecution) in order to explain delay or apparent acquiescence.
+Lindley LJ in Walker v Wilsher [at] 338, noted this exception but regarded it as limited to the fact that such letters have been written and the dates at which they were written.
+But, occasionally, fuller evidence is needed in order to give the court a fair picture of the rights and wrongs of the delay. (6) In Mullers case (which was a decision on discovery, not admissibility) one of the issues between the claimant and the defendants, his former solicitors, was whether the claimant had acted reasonably to mitigate his loss in his conduct and conclusion of negotiations for the compromise of proceedings brought by him against a software company and its other shareholders.
+Hoffmann LJ treated that issue as one unconnected with the truth or falsity of anything stated in the negotiations, and as therefore falling outside the principle of public policy protecting without prejudice communications.
+The other members of the court agreed but would also have based their decision on waiver. (7) The exception (or apparent exception) for an offer expressly made 'without prejudice except as to costs' was clearly recognised by this court in Cutts v Head, and by the House of Lords in Rush & Tompkins, as based on an express or implied agreement between the parties.
+It stands apart from the principle of public policy (a point emphasised by the importance which the new Civil Procedure Rules, Part 44.3(4), attach to the conduct of the parties in deciding questions of costs).
+There seems to be no reason in principle why parties to without prejudice negotiations should not expressly or impliedly agree to vary the application of the public policy rule in other respects, either by extending or by limiting its reach.
+In Cutts v Head Fox LJ said (at p 316) what meaning is given to the words without prejudice is a matter of interpretation which is capable of variation according to usage in the profession.
+It seems to me that, no issue of public policy being involved, it would be wrong to say that the words were given a meaning in 1889 which is immutable ever after. (8) In matrimonial cases there has developed what is now a distinct privilege extending to communications received in confidence with a view to matrimonial conciliation:
+Although it is not included in that list, it is not in dispute between the parties that another of the exceptions to the rule is rectification.
+A party to without prejudice negotiations can rely upon anything said in the course of them in order to show that a settlement agreement should be rectified.
+It was so held at first instance in Canada in Pearlman v National Life Assurance Co of Canada (1917) 39 OLR 141 and in New Zealand in Butler v Countrywide Finance Ltd (1992) 5 PRNZ 447.
+Neither case contains much reasoning but both courts treated the point as self evident.
+In my opinion the parties correctly recognised such an exception because it is scarcely distinguishable from the first exception.
+No sensible line can be drawn between admitting without prejudice communications in order to resolve the issue of whether they have resulted in a concluded compromise agreement and admitting them in order to resolve the issue of what that agreement was.
+This can be seen most clearly where the alleged agreement is oral but, in my opinion, must equally apply where the agreement is partly oral and partly in writing and where the agreement is wholly in writing but the issue is whether it reflects the common understanding of the parties.
+It was submitted on behalf of Oceanbulk that none of those exceptions applies here and that the general principle that one party should not be permitted to cross examine the other party (or its witnesses) on matters disclosed or discussed in without prejudice negotiations should be applied in its full rigour.
+Although it was correctly accepted that the point for decision in this appeal was not decided in Unilever or any of the other cases, it was submitted that the decided cases, especially Unilever and Ofulue, strongly point the way.
+By contrast, it was submitted on behalf of TMT that facts which (a) are communicated between the parties in the course of without prejudice negotiations, (b) form part of the factual matrix or surrounding circumstances and (c) would, but for the without prejudice rule, be admissible as an aid to construction of a settlement agreement which results from the negotiations should be admissible in evidence by way of exception to the rule because the agreement cannot otherwise be properly construed in accordance with the well recognised principles of contractual interpretation and because there is no distinction in principle between this exception (the interpretation exception) and, for example, the rectification exception.
+Should the interpretation exception be recognised as an exception to the without prejudice rule?
+I have reached the conclusion that this question should be answered in the affirmative for these reasons.
+The principles which govern the correct approach to the interpretation of contracts have been the subject of some development, or at least clarification, in recent years as a result of a number of important decisions of the House of Lords.
+The position was clearly stated by Lord Steyn in R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38, [2002] 1 WLR 2956.
+He summarised the position thus in para 5: The starting point is that language in all legal texts conveys meaning according to the circumstances in which it was used.
+It follows that the context must always be identified and considered before the process of construction or during it.
+It is therefore wrong to say that the court may only resort to evidence of the contextual scene when an ambiguity has arisen.
+In regard to contractual interpretation this was made clear by Lord Wilberforce in Prenn v Simmonds [1971] 1 WLR 1381, 1384 1386, and in Reardon Smith Line Ltd v Yngvar Hansen Tangen [1976] 1 WLR 989, 995 996.
+Moreover, in his important judgment in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, 912 913, Lord Hoffmann made crystal clear that an ambiguity need not be established before the surrounding circumstances may be taken into account.
+As Lord Hoffmann himself put it in para 14 of his speech in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] AC 1101, in every case in which the interpretation of the language used in the contract is in issue, the question is what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean.
+In Chartbrook the House of Lords considered and rejected the submission that what at para 42 Lord Hoffmann called the exclusionary rule, which excludes evidence of what was said or done in the course of negotiating an agreement for the purpose of drawing inferences about what the contract means, should now be abolished.
+It accordingly remains part of English law.
+The exclusionary rule does not exclude such evidence for all purposes.
+Lord Hoffmann put it thus in para 42: It does not exclude the use of such evidence for other purposes: for example, to establish that a fact which may be relevant was known to the parties, or to support a claim for rectification or estoppel.
+These are not exceptions to the rule.
+They operate outside it.
+It is not in dispute that, where negotiations which culminate in an agreement are not without prejudice, the exclusionary rule applies to the correct approach to the construction of the agreement.
+Nor is it in dispute that in those circumstances evidence of the factual matrix is admissible as an aid to interpretation even where the evidence formed part of the negotiations.
+The distinction between objective facts and other statements made in the course of negotiations was clearly stated by Lord Hoffmann in para 38 of Chartbrook: Whereas the surrounding circumstances are, by definition, objective facts, which will usually be uncontroversial, statements in the course of pre contractual negotiations will be drenched in subjectivity and may, if oral, be very much in dispute.
+Trial judges frequently have to distinguish between material which forms part of the pre contractual negotiations which is part of the factual matrix and therefore admissible as an aid to interpretation and material which forms part of the pre contractual negotiations but which is not part of the factual matrix and is not therefore admissible.
+This is often a straightforward task but sometimes it is not.
+In my opinion this problem is not relevant to the question whether, where the pre contractual negotiations that form part of the factual matrix are without prejudice, evidence of those negotiations is admissible as an aid to construction of the settlement agreement.
+The two questions are, as I see it, entirely distinct.
+In these circumstances, I see no reason why the ordinary principles governing the interpretation of a settlement agreement should be any different regardless of whether the negotiations which led to it were without prejudice.
+The language should be construed in the same way and the question posed by Lord Hoffmann should be the same, namely what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean.
+That background knowledge may well include objective facts communicated by one party to the other in the course of the negotiations.
+As I see it, the process of interpretation should in principle be the same, whether the negotiations were without prejudice or not.
+In both cases the evidence is admitted in order to enable the court to make an objective assessment of the parties intentions.
+The parties entering into such negotiations would surely expect the agreement to mean the same in both cases.
+I would not accept the submission that to hold that the process of interpretation should be the same in both cases would be to offend against the principle underlying the without prejudice rule.
+The underlying principle, whether based in public policy or contract, is to encourage parties to speak frankly and thus to promote settlement.
+As I see it, the application in both cases of the same principle, namely to admit evidence of objective facts, albeit based on what was said in the course of negotiations, is likely to engender settlement and not the reverse.
+I would accept the submission made on behalf of TMT that, if a party to negotiations knows that, in the event of a dispute about what a settlement contract means, objective facts which emerge during negotiations will be admitted in order to assist the court to interpret the agreement in accordance with the parties true intentions, settlement is likely to be encouraged not discouraged.
+Moreover this approach is the only way in which the modern principles of construction of contracts can properly be respected.
+Any other approach would be to introduce an unprincipled distinction between this class of case and two others which have already been accepted as exceptions to the without prejudice rule.
+I have already expressed the view that the rectification exception is correctly accepted because no sensible line can be drawn between admitting without prejudice communications in order to resolve the issue whether they have resulted in a concluded compromise agreement, which was the first exception identified by Robert Walker LJ in Unilever, and admitting them in order to resolve the issue what that agreement was.
+There is also no sensible basis on which a line can be drawn between the rectification case and this type of case.
+This can clearly be seen by a consideration of Sir Richard Buxtons article at [2010] CLJ 253 entitled Construction and Rectification after Chartbrook, where he compares the fifth principle identified by Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society (the ICS case) and the principles of rectification.
+It is not necessary to set out in full the five principles which Lord Hoffmann set out in that case at [1998] 1 WLR 896, 912H 913E.
+However, his fourth and fifth principles were in these terms: (4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words.
+The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean.
+The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax: see Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749. 5) The rule that words should be given their natural and ordinary meaning reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents.
+On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had.
+In his article Sir Richard Buxton expresses the view at p 256 that the fifth principle was revolutionary because it overrode the previous understanding that, rectification apart, the court could not depart from the words of a document to find an agreement different from that stated in the document.
+Whether that is so or not, Sir Richard is in my opinion correct when he notes that the principles enshrined in ICS, especially the fifth principle, point to the close relationship between interpretation and rectification.
+He notes at p 257 the essence of rectification as described in the judgment of Slade LJ (with whom Oliver and Robert Goff LJJ agreed) in Agip SpA v Navigazione Alta Italia SpA (The Nai Genova) [1984] 1 Lloyds Rep 353 at 359: In principle, the remedy of rectification is one permitted by the Court, not for the purpose of altering the terms of an agreement entered into between two or more parties, but for that of correcting a written instrument which, by a mistake in verbal expression, does not accurately reflect their true agreement.
+Sir Richard then says that a closer expression of the process necessarily envisaged by principle 5 of ICS could scarcely be found.
+I am not sure that I would put it quite as high as Sir Richard does but I entirely agree with him that the problems with which both the principles of rectification and the principles of construction (as explained in recent cases) grapple are closely related.
+This is an important factor in leading to the conclusion that evidence of what was said or written in the course of without prejudice negotiations should in principle be admissible, both when the court is considering a plea of rectification based on an alleged common understanding during the negotiations and when the court is considering a submission that the factual matrix relevant to the true construction of a settlement agreement includes evidence of an objective fact communicated in the course of such negotiations.
+For these reasons I would hold that the interpretation exception should be recognised as an exception to the without prejudice rule.
+I would do so because I am persuaded that, in the words of Lord Walker in Ofulue (at para 57), justice clearly demands it.
+In doing so I would however stress that I am not seeking either to underplay the importance of the without prejudice rule or to extend the exception beyond evidence which is admissible in order to explain the factual matrix or surrounding circumstances to the court whose responsibility it is to construe the agreement in accordance with the principles identified in ICS and Chartbrook.
+In particular nothing in this judgment is intended otherwise to encourage the admission of evidence of pre contractual negotiations.
+Conclusion
+For these reasons, I would hold that evidence in support of representations iii) and iv) is in principle admissible as part of the factual matrix or surrounding circumstances on the true construction of the agreement.
+It is I think common ground that it follows that it is also in principle admissible on the issues of estoppel and remoteness.
+In short I have reached a different conclusion from the majority of the Court of Appeal but essentially the same conclusion as was reached by Andrew Smith J at first instance and by Ward LJ in the Court of Appeal.
+For the reasons I have given I would allow the appeal.
+LORD PHILLIPS
+I agree with the reasoning and the conclusion of Lord Clarke.
+The principle to be derived from this appeal can be shortly stated.
+When construing a contract between two parties, evidence of facts within their common knowledge is admissible where those facts have a bearing on the meaning that should be given to the words of the contract.
+This is so even where the knowledge of those facts is conveyed by one party to the other in the course of negotiations that are conducted without prejudice.
+This principle applies both in the case of a contract that results from the without prejudice negotiations and in the case of any other subsequent contract concluded between the same parties.
+Accordingly I would allow this appeal.
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+This appeal concerns the permissibility and in particular compatibility with European Union law and Human Rights Convention rights, of a procedure (conveniently described as a closed material procedure) whereby an applicant and his representatives may be excluded from certain aspects of employment tribunal proceedings on grounds of national security, and a special advocate may represent his interests so far as possible in relation to the aspects closed to him and his representatives.
+In the relevant employment tribunal proceedings, the appellant, Mr Kashif Tariq, complains that his security clearance as an immigration officer was withdrawn in circumstances involving direct or indirect discrimination on grounds of race and/or religion, and that this was contrary to the Race Relations Act 1976 and the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660).
+The Home Offices case is that there was no such discrimination, that the decisions taken in relation to Mr Tariq were taken for the purposes of safeguarding national security, and that the order for a closed material procedure made by the Employment Tribunal (on the Home Offices application) on 15 February 2008 was made justifiably and for the same protective purposes.
+Mr Tariqs challenge to the Employment Tribunals order for a closed material procedure was dismissed by the Employment Appeal Tribunal on 16 October 2009, UKEAT 168/09, [2010] ICR 223 and the Court of Appeal on 4 May 2010 [2010] EWCA Civ 462, [2010] ICR 1034, but it was declared (by the Employment Appeal Tribunals order dated 24 November 2009, upheld in the Court of Appeal) that article 6 of the European Convention on Human Rights requires [Mr Tariq] to be provided with the allegations being made against him in sufficient detail to enable him to give instructions to his legal team so that those allegations can be challenged effectively (a requirement which can conveniently be described as gisting), even if this put the Home Office in the invidious position of having to make difficult decisions about disclosure and whether or how a claim is to be defended: [2010] ICR 1034, para 50, per Maurice Kay LJ.
+The Home Office appeals to the Supreme Court against the latter conclusion, while Mr Tariq cross appeals against the conclusion that a closed material procedure was permissible.
+The factual background in more detail
+Mr Tariq started employment with the Home Office as an immigration officer on 21 April 2003, having received the necessary security clearance on 18 February 2003.
+On 19 August 2006 he was suspended from duty on basic pay, while consideration was given to the withdrawal of his security clearance, and on 20 December 2006 his clearance was withdrawn.
+His internal appeal against this decision was dismissed on 9 August 2007, and his further appeal to the Security Vetting Appeals Panel (SVAP) was unsuccessful in January 2011.
+The background to the Home Offices decisions to suspend and withdraw Mr Tariqs security clearance consists in the arrest of his brother and cousin on 10 August 2006 during a major counter terrorism investigation into a suspected plot to mount a terrorist attack on transatlantic flights.
+Mr Tariq's brother was subsequently released without charge.
+Mr Tariq's cousin, Tanvir Hussain, was convicted on 8 September 2008 of conspiracy to murder, having previously also pleaded guilty to two counts of conspiracy to cause explosions and to commit a public nuisance.
+He is now serving a sentence of life imprisonment.
+Inquiries were made at the time of the arrests to establish whether or not Mr Tariq was involved in any way with the plot or could be affected by it.
+No information suggested that Mr Tariq had himself been involved in any terrorism plot, but the Home Office (in grounds of resistance served in the Employment Tribunal proceedings on 6 August 2007 and amplified on 20 December 2007) states that it was concerned in August 2006 that [Mr Tariq] could be vulnerable to an approach to determine if terrorist suspects had been flagged to the authorities or to smuggle prohibited items airside and that its decision to withdraw security clearance in December 2006 was based on [his] close association with individuals suspected of involvement in plans to mount terrorist attacks and on its view that association with such individuals might make him vulnerable to attempts to exert undue influence on [him] to abuse his position.
+Mr Tariq commenced the employment tribunal proceedings claiming direct or indirect discrimination on grounds of race and/or religion on 15 March 2007.
+He stated at the outset that he had been advised that his suspension and the withdrawal of his security clearance were because of his perceived association with certain relatives or associates of relatives suspected of association with terrorist activities and the risk of their attempting to exert influence on him to abuse his position.
+He denied any such association or risk.
+On 10 July 2007 he provided what he said were (considering, he said, the extremely limited information as to the grounds for his treatment to that date given) the best further particulars possible to give pending disclosure by the Home Office.
+These particulars alleged, inter alia, that the Home Office had relied upon stereotypical assumptions about him and/or Muslims and/or individuals of Pakistani origin such as susceptibility to undue influence, coercion or brainwashing and had indirectly discriminatory security policies, procedures and methods of investigation.
+The Home Office in its grounds of resistance denied this and maintains, as stated, that it acted throughout to protect national security.
+The legislation
+The Race Relations Act 1976 provides: 1 Racial discrimination (1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if (a) on racial grounds he treats that other less favourably than he treats or would treat other persons; . (lA) A person also discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in subsection (lB), he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but (a) which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons, (b) which puts or would put that other at that disadvantage, and (c) which he cannot show to be a proportionate means of achieving a legitimate aim. 42 Acts safeguarding national security Nothing in Parts II to IV shall render unlawful an act done for the purpose of safeguarding national security if the doing of the act was justified by that purpose.
+The Race Relations Act 1976 is the means by which the United Kingdom gives effect to its obligations under Council Directive 2000/43/EC of 29 June 2000 (the Race Directive) implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.
+On 27 November 2000 Council Directive 2000/78/EC (the Employment Equality Directive) established a general framework for equal treatment in employment and occupation.
+This led to the making, under section 2 of the European Communities Act 1972, of the Employment Equality (Religion or Belief) Regulations 2003 (the Employment Equality Regulations), prohibiting discrimination on grounds of religion or belief and providing: 3.(1) For the purposes of these Regulations, a person (A) discriminates against another person (B) if (a) on grounds of religion or belief, A treats B less favourably than he treats or would treat other persons; or (b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same religion or belief as B, but (i) which puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons, (ii) which puts B at that disadvantage, and (iii) which A cannot show to be a proportionate means of achieving a legitimate aim.
+Exception for national security 24.
+Nothing in Part II or III shall render unlawful an act done for the purpose of safeguarding national security, if the doing of the act was justified by that purpose.
+The issues regarding closed material procedure in more detail
+Employment Tribunals are established under the Employment Tribunals Act 1996.
+Section 7 entitles the Secretary of State to make by regulations (employment tribunal procedure regulations) . such provision as appears to him to be necessary or expedient with respect to proceedings before employment tribunals.
+Section 10, which I set out in the annex to this judgment, specifically authorises the making in the interests of national security of regulations providing for a closed material procedure, either by direction of a minister or by order of the employment tribunal or judge, and for the appointment by the Attorney General in that context of a special advocate.
+The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861) contain in Schedules 1 and 2 provisions made under sections 7 and 10 of the Act.
+Schedule 1, headed the Employment Tribunals Rules of Procedure (the ET Procedure Rules), contains rule 54, set out in the annex, providing specifically for a closed material procedure where a minister so directs (rule 54(1)) or where the tribunal or employment judge concludes that such a procedure is appropriate and so orders (rule 54(2)).
+Schedule 2, headed the Employment Tribunals (National Security) Rules of Procedure (the ET National Security Rules), contains rules 8 and 10, also set out in the annex, providing for special advocates and reasons in national security proceedings.
+Regulation 16 provides that the rules in Schedule 1 apply to employment tribunal proceedings generally, but that such rules shall be modified in accordance with Schedule 2 wherever any power conferred on the minister, the tribunal or an employment judge by rule 54 of Schedule 1 is exercised.
+Regulation 2 of the 2004 Regulations contains definitions, again set out in the annex.
+Mr Tariqs cross appeal (a) general
+The power to give directions conferred on the minister by rule 54(1) has not been exercised in this case.
+The Supreme Court was told that it has never been exercised in any case.
+The probable reasons are not difficult to discern, bearing in mind the scope for challenge both by judicial review and, more fundamentally, under the Human Rights Act 1998 or, Mr Robin Allen QC also submits for Mr Tariq, European Union law.
+While the conferral of the power is expressly authorised by the 1996 Act, it is hard to see how it could be compatible with article 6 of the European Convention on Human Rights for a minister to have power to make such a direction to a judicial tribunal.
+Instead of giving any direction, the minister made an application to the tribunal, asking it to order a closed material procedure with a special advocate under the discretionary power conferred by rule 54(2).
+On 15 February 2008, the tribunal held that it was expedient in the interest of national security to make orders under rule 54 that the whole of the proceedings be in private, and directed that Mr Tariq and his representative should be excluded from part of the proceedings when closed evidence and/or documents were being considered, that the Tribunal would consider both open and closed documents and that the Home Office would make available the appropriate closed material to any special advocate appointed.
+It further stated that the terms so ordered would be reviewed at a later case management discussion.
+At a case management discussion held on 30 May 2008, in the presence of representatives of the parties and of Ms J Farbey of counsel nominated by the Attorney General to act as special advocate, the judge ordered that her role as special advocate should take effect and that she should proceed in discussions with Mr Tariq.
+Meanwhile, reasons for the tribunals decision on 15 February 2008 were outstanding.
+The minister, to whom the tribunal was required by rule 10 of the ET National Security Rules to submit such reasons in the first instance, directed that one paragraph be abridged and another omitted.
+As a result, an edited version, identifying the positions of the amendment and abridgement, was initially issued to Mr Tariq and his representatives on 15 October 2008.
+However, on 9 December 2008 the full reasons were released.
+One may speculate that this resulted from submissions made by the special advocate.
+The paragraphs amended and omitted do not, on their face, seem likely to impact on national security.
+This course of events offers therefore a cautionary message, but, quite possibly also, an indication of at least one purpose which a special advocate may serve.
+In the upshot, there is not now any ministerial order in effect under rule 10.
+Whatever objections may be made to a rule giving the executive power to direct the judiciary with regard to reasons do not therefore arise for consideration on this appeal.
+This appeal concerns an exercise by the Tribunal of its power under rule 54(2) of the ET Procedure Rules, read with rule 8 of the ET National Security Rules.
+(b) The European Union Directives
+On behalf of Mr Tariq, Mr Allen submits that rule 54(2) and rule 8 are contrary to European Union law and/or the European Human Rights Convention.
+These rules were made pursuant to the express statutory authority to make such rules conferred by section 10 of the Employment Tribunals Act 1996.
+Mr Allens first submission is that they are, none the less, in conflict with European legal principles governing discrimination, contained in the European Treaties and in the Race and Employment Equality Directives, to which the 1996 Act, the Race Relations Act 1976 and the Employment Equality Regulations must all be read, at least as far as possible, as being subject.
+Mr Allen notes in this connection a contrast between the two Directives.
+The Employment Equality Directive makes express reference to national security, providing in article 2(5): 5.
+This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.
+There is no equivalent provision in the Race Directive.
+Mr Allen suggests that this may be because the Race Directive does not preclude discrimination on grounds of nationality: article 3(2).
+Mr Allen further notes that neither Directive makes express provision for closed hearings, and that the Court of Justice has on more than one occasion made clear that the European Treaties contain no general power for states to derogate from European law and the rights it confers on grounds of public safety or national defence, outside specific situations identified in Treaty articles, none of which applies here: Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1987] QB 129; Case C 337/05 Commission of the European Communities v Italian Republic [2008] ECR I 2173.
+None of these points is, in my view, relevant in the present context.
+I agree with the reasoning and conclusions of Maurice Kay LJ in paras 12 to 22 of his judgment in the Court of Appeal: [2010] ICR 1034.
+The authorities cited by Mr Allen deal with derogation from principles of substantive law, here the rights not to be discriminated against conferred by the Directives.
+The legitimacy of closed hearings and of the use of a special advocate are matters of procedural law.
+Procedure is primarily a matter for national law.
+It is, however, a basic principle of European Union law that national law should provide effective legal protection, by establishing a system of legal remedies and procedures which ensure respect for the relevant right: Case C 312/93 Peterbroeck v Belgian State [1995] ECR I 4599; Case C 432/05 Unibet (London) Ltd v Justitie Kanslern [2007] ECR I 2271.
+In that respect, European Union law directs attention primarily to principles established under articles 5 and 6 of the European Convention on Human Rights as a guide to what constitutes effective legal protection.
+Mr Allen points out that the Directives both contain provisions (article 7(1) of the Race Directive and article 9 of the Employment Equality Directive), whereby: Member states shall ensure that judicial and/or administrative procedures, including where they deem it appropriate conciliation procedures, for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended.
+Further, by articles 8 and 10 respectively of these Directives: Member states shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.
+Again, and as this wording contemplates, it is for each national judicial system to ensure an effective system of legal procedures enabling a claimant to establish facts from which it may be presumed that there has been direct or indirect discrimination.
+In the present case, Mr Allen has not suggested that Mr Tariq has not been able to do this.
+Mr Allen also submits that Mr Tariq could lose his claim by reason of section 42 of the Race Relations Act 1976 and/or regulation 24 of the Employment Equality Regulations on a basis which, by reason of the closed material procedure, would not be disclosed.
+Section 42 and regulation 24 are dealing with substantive law.
+If they were read and applied as excusing what would otherwise be unlawful discrimination, they might therefore be open to challenge under the principle of European Union law identified in para 14 above.
+But the present case is far from involving any such issue.
+First, the issue could only arise from a substantive decision, and the Tribunal is a long way from reaching such a decision.
+Second, it is far from clear that section 42 and regulation 24 are to be read as entitling a tribunal or court to excuse what would otherwise be unjustified discrimination on grounds of national security.
+The question would arise: if it would involve unjustified discrimination, how could the doing of the act be justified for the purpose of safeguarding national security? Third, the Home Offices dominant aim in the present proceedings is to show that there was no discrimination at all on any prohibited ground, but a rational and proportionate decision taken in the public interest.
+If the Employment Tribunal were at some future stage to find that there was discrimination on a prohibited ground, but that the effect of section 42 and/or regulation 24 was that such discrimination could none the less be regarded as justified as being for the purpose of safeguarding national security, the Tribunal would be obliged to identify this basis of decision, however generally, in open reasons, to enable its legitimacy under European Union law to be challenged.
+There is no reason to assume that the Tribunal, assisted as it would also be by a special advocate, would fail to do this.
+(c) Effective legal protection
+The question is therefore whether the closed material procedure authorised by United Kingdom law provides effective legal protection, by establishing a system of legal remedies and procedures to ensure respect for the relevant rights conferred by the Race Relations Act and the Employment Equality Regulations in implementation of the United Kingdoms obligations under the two Directives.
+Mr Allen relies upon the decisions of the Court of Justice in Joined Cases C 402/05 P and C 415/05 P Kadi v Council of the European Union and the General Court in Case T 85/09 Kadi v Commission of the European Union (Council of the European Union intervening).
+These two cases concerned the validity of the European Unions own measures, and the two European Courts were charged not merely with ascertaining and interpreting the relevant European legal principles applicable under the Treaties, but also with applying these to the particular measures and circumstances before them.
+In the former case [2009] AC 1225, the Court of Justice addressed Council Regulation 881/2002 which aimed to mirror within Europe a similar asset freezing regime to that mandated by Security Council Resolutions for all member states of the United Nations.
+The Regulation, in its Annex I, simply listed as persons whose assets were to be frozen persons whose names appeared on a list drawn up by the Security Councils Sanctions Committee, and no opportunity was given before or after its passing to such persons to mount any legal challenge to such listing at either the Security Council or the European level.
+The Court of Justice accepted that: 342 . with regard to a Community measure intended to give effect to a resolution adopted by the Security Council in connection with the fight against terrorism, overriding considerations to do with safety or the conduct of the international relations of the Community and of its Member States may militate against the communication of certain matters to the persons concerned and, therefore, against their being heard on those matters.
+It went on: 343 However, that does not mean, with regard to the principle of effective judicial protection, that restrictive measures such as those imposed by the contested regulation escape all review by the Community judicature once it has been claimed that the act laying them down concerns national security and terrorism. 344 In such a case, it is none the less the task of the Community judicature to apply, in the course of the judicial review it carries out, techniques which accommodate, on the one hand, legitimate security concerns about the nature and sources of information taken into account in the adoption of the act concerned and, on the other, the need to accord the individual a sufficient measure of procedural justice (see, to that effect, the judgment of the European Court of Human Rights in Chahal v United Kingdom (1996) 23 EHRR 413, para 131).
+The Regulation was annulled in respect of Mr Kadi and Al Barakaat (a Swedish foundation) because there had been no procedure for communicating any evidence or for any hearing of persons listed, so that such persons rights of defence and to an effective legal remedy were infringed.
+But the Court postponed the annulment for up to three months from 3 September 2008.
+The second Kadi case [2011] 1 CMLR 697 was a sequel.
+After the first case, the Commission sought and obtained from the Sanctions Committee a summary of its reasons for listing Mr Kadi, communicated that to him and received his comments on it on 10 November 2008.
+On 28 November 2008 the Commission by Commission Regulation (EC) No 1190/2008, made pursuant to a power in Regulation 881/2002 to amend Annex I to that Regulation, recited this course of events and purported on that basis to amend Annex I to reinsert Mr Kadi and Al Barakaat.
+Mr Kadi again successfully challenged this.
+The General Court held that his rights of defence had been observed only in the most formal and superficial sense, as the Commission in actual fact considered itself strictly bound by the Sanctions Committees findings and therefore at no time envisaged calling those findings into question in the light of the applicants observations (para 171).
+The General Court went on to say that the Commission, notwithstanding recitals in its Regulation, failed to take due account of the applicants comments (para 172) and that the procedure followed by the Commission, in response to the applicant's request, did not grant him even the most minimal access to the evidence against him.
+In actual fact, the applicant was refused such access despite his express request, whilst no balance was struck between his interests, on the one hand, and the need to protect the confidential nature of the information in question, on the other (see, in that regard, the judgment of the Court of Justice in Kadi, paras 342 to 344) (para 173).
+The General Court noted that this conclusion was consistent with the reasoning on the European Court of Human Rights in A v United Kingdom [2009] 49 EHRR 625 (para 176).
+Earlier in its judgment, at paras 146 147, the General Court said this about national security issues, with reference to its previous judgment in Case T 228/02 Organisation des Modjahedines du Peuple d'Iran v Council of the European Union [2006] ECR II 4665 (OMPI): 146 The General Court also noted in that regard, at para 156 of OMPI, that, although the European Court of Human Rights recognises that the use of confidential information may be necessary when national security is at stake, that does not mean, in that court's view, that national authorities are free from any review by the national courts simply because they state that the case concerns national security and terrorism (see the judgment of the European Court of Human Rights in Chahal v United Kingdom, para 131, and case law cited, and its judgment in calan v Turkey (2003) 37 EHRR 238, para 106 and case law cited). 147 The General Court added, at para 158 of OMPI, that it was not necessary for it to rule, in the action before it, on the separate question as to whether the applicant and/or its lawyers could be provided with the evidence and information alleged to be confidential, or whether they had to be provided only to the Court, in accordance with a procedure which remained to be defined so as to safeguard the public interests at issue whilst affording the party concerned a sufficient degree of judicial protection.
+The question identified by the General Court in para 147 did not arise for decision in either of the two Kadi cases.
+It is, however, clear from both Kadi cases that the Court of Justice will look for guidance in the jurisprudence of the European Court of Human Rights when deciding whether effective legal protection exists, and how any balance should be struck when a question arises whether civil procedures should be varied to reflect concerns relating to national security.
+A national court, faced with an issue of effective legal protection or, putting the same point in different terms, access to effective procedural justice, can be confident that both European courts, Luxembourg and Strasbourg, will have the same values and will expect and accept similar procedures.
+Article 6(2) of the Treaty on the European Union (The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law) and the Charter of Fundamental Rights already point strongly in this direction.
+Assuming that the European Union will in due course formally subscribe to the European Convention on Human Rights, as contemplated by the Treaty amendments introduced under the Treaty of Lisbon, the expectation will receive still further reinforcement.
+In the present case, the Home Office applied for and obtained the Tribunals order for a closed material procedure in order to be able to defend itself against Mr Tariqs claim that the removal of his security clearance involved unlawful discrimination on grounds of race or religion.
+The case concerns a different subject matter from that of both Kadi cases, where freezing orders were in issue.
+The effect of freezing orders (made under United Kingdom legislation directly implementing the Security Councils Resolutions) was examined by the Supreme Court in A v HM Treasury (JUSTICE intervening) [2010] UKSC 2; [2010] 2 AC 534.
+Persons subject to such orders became effectively prisoners of the state and there was a devastating effect on them and their families: para 60.
+A v United Kingdom, to which the General Court in Kadi referred, also involved a different subject matter to the present, concerning, as it did, the detention of foreign nationals suspected of terrorist involvement.
+Rights said that: In A v United Kingdom 49 EHRR 695 the European Court of Human 216 The Court takes as its starting point that, as the national courts found and it has accepted, during the period of the applicants detention the activities and aims of the AlQaeda network had given rise to a public emergency threatening the life of the nation.
+It must therefore be borne in mind that at the relevant time there was considered to be an urgent need to protect the population of the United Kingdom from terrorist attack and, although the United Kingdom did not derogate from article 5(4), a strong public interest in obtaining information about AlQaeda and its associates and in maintaining the secrecy of the sources of such information (see also, right under article 5(4) in this connection, Fox, Campbell and Hartley (1991) 13 EHRR 157, para 39). 217 Balanced against these important public interests, however, was the applicants' to procedural fairness.
+Although the Court has found that, with the exception of the second and fourth applicants, the applicants detention did not fall within any of the categories listed in sub paragraphs (a) to (f) of article 5(1), it considers that the case law relating to judicial control over detention on remand is relevant, since in such cases also the reasonableness of the suspicion against the detained person is a sine qua non (see para 197 above).
+Moreover, in the circumstances of the present case, and in view of the dramatic impact of the lengthy and what appeared at that time to be indefinite deprivation of liberty on the applicants' fundamental rights, article 5(4) must import substantially the same fair trial guarantees as article 6(1) in its criminal aspect (Garcia Alva v Germany (2003) 37 EHRR 335, para 39, and see also see Chahal, cited above, paras 130 131). 218 Against this background, it was essential that as much information about the allegations and evidence against each applicant was disclosed as was possible without compromising national security or the safety of others.
+Where full disclosure was not possible, article 5(4) required that the difficulties this caused were counterbalanced in such a way that each applicant still had the possibility effectively to challenge the allegations against him. 219 The Court considers that SIAC, which was a fully independent court (see para 84 above) and which could examine all the relevant evidence, both closed and open, was best placed to ensure that no material was unnecessarily withheld from the detainee.
+In this connection, the special advocate could provide an important, additional safeguard through questioning the states witnesses on the need for secrecy and through making submissions to the judge regarding the case for additional disclosure.
+On the material before it, the Court has no basis to find that excessive and unjustified secrecy was employed in respect of any of the applicants' appeals or that there were not compelling reasons for the lack of disclosure in each case. 220 The Court further considers that the special advocate could perform an important role in counterbalancing the lack of full disclosure and the lack of a full, open, adversarial hearing by testing the evidence and putting arguments on behalf of the detainee during the closed hearings.
+However, the special advocate could not perform this function in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate.
+While this question must be decided on a case by case basis, the Court observes generally that, where the evidence was to a large extent disclosed and the open material played the predominant role in the determination, it could not be said that the applicant was denied an opportunity effectively to challenge the reasonableness of the Secretary of State's belief and suspicions about him.
+In other cases, even where all or most of the underlying evidence remained undisclosed, if the allegations contained in the open material were sufficiently specific, it should have been possible for the applicant to provide his representatives and the special advocate with information with which to refute them, if such information existed, without his having to know the detail or sources of the evidence which formed the basis of the allegations.
+An example would be the allegation made against several of the applicants that they had attended a terrorist training camp at a stated location between stated dates; given the precise nature of the allegation, it would have been possible for the applicant to provide the special advocate with exonerating evidence, for example of an alibi or of an alternative explanation for his presence there, sufficient to permit the advocate effectively to challenge the allegation.
+Where, however, the open material consisted purely of general assertions and SIAC's decision to uphold the certification and maintain the detention was based solely or to a decisive degree on closed material, the procedural requirements of article 5(4) would not be satisfied.
+In Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28; [2010] 2 AC 269, the House of Lords applied the reasoning in para 220 of A v United Kingdom when concluding that a closed material procedure involving a special advocate could be legitimate in the context of the imposition of a control order on a suspected terrorist, so long as the case was not based solely or to a decisive extent on closed material.
+Mr Allen submits that the fundamental nature of equality rights makes it just as critical that Mr Tariq should receive the fullest procedural rights in this case as it was for Mr Kadi or A or AF to have such rights.
+However, the reasoning in para 217 of the European Court of Human Rights judgment in A v United Kingdom emphasises the context of that decision, the liberty of the individual.
+Detention, control orders and freezing orders impinge directly on personal freedom and liberty in a way to which Mr Tariq cannot be said to be exposed.
+In R(AHK) v Secretary of State for the Home Department (Practice Note) [2009] EWCA Civ 287; [2009] 1 WLR 2049, a claim for judicial review of the refusal of an application for British citizenship, the Court of Appeal distinguished A v United Kingdom on the ground that it was focusing on detention.
+In my opinion, it was justified in making this distinction.
+An applicant for British citizenship has, of course, an important interest in the appropriate outcome of his or her application.
+Mr Tariq also has an important interest in not being discriminated against which is entitled to appropriate protection; and this is so although success in establishing discrimination would be measured in damages, rather than by way of restoration of his security clearance (now definitively withdrawn) or of his position as an immigration officer.
+But the balancing exercise called for in para 217 of the European Courts judgment in A v United Kingdom depends on the nature and weight of the circumstances on each side, and cases where the state is seeking to impose on the individual actual or virtual imprisonment are in a different category to the present, where an individual is seeking to pursue a civil claim for discrimination against the state which is seeking to defend itself.
+That the outcome of the balancing exercise may differ with the circumstances is confirmed by three decisions of the European Commission and Court of Human Rights: Leander v Sweden (1987) 9 EHRR 433, Esbester v United Kingdom (1993) 18 EHRR CD72 and Kennedy v United Kingdom (Application No 26839/05) (unreported) 18 May 2010.
+In Leander, the applicant had been refused permanent employment as museum technician with the Naval Museum, which was adjacent to the Karlskrona Naval Base in which the Museum had storage rooms and other objects to which he would need access.
+The refusal was on account of secret information, contained in an annex compiled by the police, which was alleged to make him a security risk and to which he was refused access.
+He claimed that there had been breaches of, inter alia, articles 8 and 13 of the Convention.
+The Court did not accept this.
+Article 8 provides that everyone has the right to respect for his private life, and that there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or other specified interests.
+As to article 8, the Court held that, although there was adverse interference with Mr Leanders private life through the consequences for his access to certain sensitive posts (para 59) and although he was refused any possibility of challenging the correctness of the information concerning him (para 61), the system for collecting and using the secret information contained a number of internal safeguards (para 62) and it could not be concluded that the interference involved in the non communication of the information to Mr Leander was not necessary in a democratic society in the interests of national security, as it is the very absence of such communication which, at least partly, ensures the efficacy of the personnel control procedure (para 66).
+Article 13 provides that everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority.
+As to article 13, the Court in Leander held by a majority (4 to 3) that an effective remedy under article 13 must mean a remedy that is as effective as can be, having regard to the restricted scope for recourse inherent in any system of secret surveillance for the protection of national security (para 84), and that, even if the procedure of complaint to the Government (which Mr Leander had followed and which had led to the Cabinet rejecting his complaint) were not considered sufficient, the aggregate of that and the other remedies of complaint to the Swedish Parliamentary Ombudsman and Chancellor of Justice (which he could also have pursued, although their views would only have been advisory) satisfied the conditions of article 13 (para 84).
+In Esbester 18 EHRR CD72 the Commission was again concerned with a refusal to employ, in this case as an administrative officer with the Central Office of Information (COI).
+The COI having offered to employ Mr Esbester subject to the satisfactory completion of our inquiries ., gave as its reasons for refusal simply that having completed our inquiries . we are unable to offer you an appointment.
+Mr Esbester claimed infringement of articles 8 and 13, maintaining that it was likely that the intelligence services had in the course of negative vetting procedures obtained and relied upon information about his private life, which he had had no opportunity to refute.
+He also alleged that there was inadequate legal regulation regarding the gathering of such information, and that the Security Service Tribunal responsible for investigating complaints gave inadequate protection and was prevented from giving reasons for its decisions.
+The Commission accepted, following Leander, that security vetting based on information about a persons private life constitutes interference within article 8, and it accepted, following Klass v Federal Republic of Germany (1978) 2 EHRR 214 and Malone v United Kingdom (1985) 7 EHRR 14 that the existence in the United Kingdom of a system for secret surveillance for vetting and the circumstances giving rise to the refusal to employ Mr Esbester gave rise to an inference that such interference had taken place.
+But it rejected Mr Esbesters complaints as manifestly unfounded.
+In finding the United Kingdoms system to be in accordance with the law, the Commission noted that the Court had held in Leander that the requirement of foreseeability in the special context of employment vetting in sectors affecting national security cannot be the same as in many other fields.
+In finding that the system was necessary in a democratic society, the Commission said, again with reference to Leander, that regard must also be had in this context to the margin of appreciation of the respondent state which in the area of assessing the requirements of and means of pursuing interests of national security has been held by the Court to be wide.
+In considering whether there existed adequate and effective guarantees against abuse, as required by the Courts decision in Klass, the Commission noted that the term national security was not amenable to exhaustive definition, and that, as regards the lack of reasons for the decisions of the Tribunal, the Court in Klass, when considering a similar problem, had found that the state could legitimately fear that the efficacy of surveillance systems might be jeopardised if information is divulged to the person concerned.
+The Commission concluded its discussion of article 8 by saying that In the absence of any evidence or indication that the system is not functioning as required by domestic law, the Commission finds that the framework of safeguards achieves a compromise between the requirements of defending democratic society and the rights of the individual which is compatible with the provisions of the Convention.
+Consequently it concludes that the interference in the present case was necessary in a democratic society in the interests of national security.
+As to article 13, the Commission held that the complaint of lack of an effective remedy failed in the absence of any arguable claim for breach of article 8.
+In Kennedy v United Kingdom decided by its Fourth Section on 18 May 2010, the Court was concerned with a claim that there had been breaches of articles 6 (the right to a fair trial in the determination of civil rights and obligations), 8 and 13 in circumstances where the claimants requests to MI5 and GCHQ under the Data Protection Act 1998 to discover whether information about him was being processed had been refused on the grounds of national security.
+Complaints about such refusals to the Investigatory Powers Tribunal (IPT) chaired by Lord Justice Mummery were examined in private.
+They concluded with the IPT simply notifying Mr Kennedy that no determination had been made in his favour in respect of his complaints.
+This meant either that there had been no interception or that any interception which took place was lawful (para 20).
+As to article 8, the Court held that the domestic law, practice and safeguards relating to surveillance satisfied the conditions of that article.
+It referred to, inter alia, Leander v Sweden as establishing that the requirement that the consequences of the domestic law must be foreseeable, before any interference could be said to be in accordance with the law under article 8(2), cannot be the same in the context of interception of communications as in many other fields (paras 151 152).
+As to article 6, the Court in Kennedy found it unnecessary to decide whether this article applies to proceedings concerning a decision to put someone under surveillance, because it concluded that, assuming it does, the IPTs rules of procedure complied with the requirements of article 6(1) (para 179).
+The parties respective cases appear from the following paragraphs of the Courts judgment: 181.
+The applicant submitted that even where national security was at stake, a domestic court could not infringe the fair hearing principle in a blanket and uncritical manner.
+He argued that less restrictive measures were available to achieve the aim pursued, including arrangements to protect witnesses' identities, disclosure of documents with redactions approved by the IPT, provision of a summary of particularly sensitive material under the supervision of the IPT and appointment of special advocates to whom disclosure of sensitive material could be made.
+He referred to a recent report on secret evidence published in June 2009 by the non governmental organisation, JUSTICE, which called for the strengthening of disclosure procedures and increased transparency in court proceedings. 182.
+The Government emphasised that even where article 6(1) applied to a field falling within the traditional sphere of public law, this did not in itself determine how the various guarantees of article 6 should be applied to such disputes (citing Vilho Eskelinen v Finland (2007) 45 EHRR 993, para 64).
+The obligation to read the Convention as a whole meant that the scope of the article 6 guarantees in such a case should be in harmony with the Court's approach to judicial control under article 8.
+The Government argued that the overarching consideration was that an individual could not be notified of interception measures while interception was ongoing or where notification would jeopardise the capabilities or operations of intercepting agencies.
+They therefore disputed that the less restrictive measures proposed by the applicant were appropriate.
+They noted that protection of witnesses' identities would not assist in keeping secret whether interception had occurred.
+Nor would disclosure of redacted documents or summaries of sensitive material.
+Further, unless they were appointed in every case, the appointment of special advocates would also allow a complainant to draw inferences about whether his communications had been intercepted. 183.
+The Government argued that the procedure before the IPT offered as fair a procedure as could be achieved in the context of secret surveillance powers.
+In particular, a complainant did not have to overcome any evidential burden to apply to the IPT and any legal issues could be determined in a public judgment after an inter partes hearing.
+Further, the IPT had full powers to obtain any material it considered necessary from relevant bodies and could call upon the assistance of the Commissioner.
+It could appoint an advocate to assist it at closed hearings.
+Finally, in the event that the complainant was successful, a reasoned decision would be provided.
+The Court, in holding that there had been no violation of article 6 or 13 in Kennedy, substantially aligned itself with the United Kingdom Governments position particularly in so far as it endorsed in relation to the concept of a fair trial under article 6 the relevance of similar considerations to those taken into account, previously and in Kennedy itself, when applying articles 8 and 13.
+It held: 184.
+The Court reiterates that according to the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis a vis his opponent .
+The Court has held none the less that, even in proceedings under article 6 for the determination of guilt on criminal charges, there may be restrictions on the right to a fully adversarial procedure where strictly necessary in the light of a strong countervailing public interest, such as national security, the need to keep secret certain police methods of investigation or the protection of the fundamental rights of another person.
+There will not be a fair trial, however, unless any difficulties caused to the defendant by a limitation on his rights are sufficiently counterbalanced by the procedures followed by the judicial authorities (see, for example, Doorson v The Netherlands (1996) 22 EHRR 330, para 70; Jasper v United Kingdom (2000) 30 EHRR 441, paras 51 to 53; and A v United Kingdom (2009) 49 EHRR 625, para 205).
+A similar approach applies in the context of civil proceedings. 185.
+The Court notes that the IPT, in its preliminary ruling of 23 January 2003, considered the applicant's complaints regarding the compliance of the Rules with article 6(1).
+It found that, with the exception of rule 9(6) which required all oral hearings to be held in private, the Rules challenged by the applicant were proportionate and necessary, with special regard to the need to preserve the Government's neither confirm nor deny policy 186.
+At the outset, the Court emphasises that the proceedings related to secret surveillance measures and that there was therefore a need to keep secret sensitive and confidential information.
+In the Court's view, this consideration justifies restrictions in the IPT proceedings.
+The question is whether the restrictions, taken as a whole, were disproportionate or impaired the very essence of the applicant's right to a fair trial. 187.
+In respect of the rules limiting disclosure, the Court recalls that the entitlement to disclosure of relevant evidence is not an absolute right.
+The interests of national security or the need to keep secret methods of investigation of crime must be weighed against the general right to adversarial proceedings (see, mutatis mutandis, Edwards and Lewis v United Kingdom (2005) 40 EHRR 593, para 46).
+The Court notes that the prohibition on disclosure set out in rule 6(2) admits of exceptions, set out in rules 6(3) and (4).
+Accordingly, the prohibition is not an absolute one.
+The Court further observes that documents submitted to the IPT in respect of a specific complaint, as well as details of any witnesses who have provided evidence, are likely to be highly sensitive, particularly when viewed in light of the Government's neither confirm nor deny policy.
+The Court agrees with the Government that, in the circumstances, it was not possible to disclose redacted documents or to appoint special advocates as these measures would not have achieved the aim of preserving the secrecy of whether any interception had taken place.
+It is also relevant that where the IPT finds in the applicant's favour, it can exercise its discretion to disclose such documents and information under rule 6(4) . 188.
+As regards limitations on oral and public hearings, the Court recalls, first, that the obligation to hold a hearing is not absolute.
+There may be proceedings in which an oral hearing is not required and where the courts may fairly and reasonably decide the case on the basis of the parties' submissions and other written materials.
+The character of the circumstances that may justify dispensing with an oral hearing essentially comes down to the nature of the issues to be decided by the competent national court (see Jussila v Finland (2006) 45 EHRR 900, paras 41 to 42).
+The Court notes that rule 9(2) provides that oral hearings are within the IPT's discretion and it is clear that there is nothing to prevent the IPT from holding an oral hearing where it considers that such a hearing would assist its examination of the case. 189.
+Concerning the provision of reasons, the Court emphasises that the extent to which the duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see Ruiz Torija v Spain (1994) 19 EHRR 553, para 29).
+In the context of the IPT's proceedings, the Court considers that the "neither confirm nor deny" policy of the Government could be circumvented if an application to the IPT resulted in a complainant being advised whether interception had taken place.
+In the circumstances, it is sufficient that an applicant be advised that no determination has been in his favour.
+The Court further notes in this regard that, in the event that a complaint is successful, the complainant is entitled to have information regarding the findings of fact in his case . 190.
+In light of the above considerations, the Court considers that the restrictions on the procedure before the IPT did not violate the applicant's right to a fair trial.
+In reaching this conclusion, the Court emphasises the breadth of access to the IPT enjoyed by those complaining about interception within the United Kingdom and the absence of any evidential burden to be overcome in order to lodge an application with the IPT.
+In order to ensure the efficacy of the secret surveillance regime, and bearing in mind the importance of such measures to the fight against terrorism and serious crime, the Court considers that the restrictions on the applicant's rights in the context of the proceedings before the IPT were both necessary and proportionate and did not impair the very essence of the applicant's article 6 rights.
+As regards article 13, the Court held that the IPT offered to the applicant an effective remedy insofar as his complaint was directed towards the alleged interception of his communications and, in respect of the applicants general complaint under article 8, it reiterated its case law to the effect that article 13 does not require the law to provide an effective remedy where the alleged violation arises from primary legislation, citing in this respect also Leander v United Kingdom 9 EHRR 433.
+These three cases Leander, Esbester and Kennedy establish that the demands of national security may necessitate and under European Convention law justify a system for handling and determining complaints under which an applicant is, for reasons of national security, unable to know the secret material by reference to which his or her complaint is determined.
+The critical questions under the Convention are whether the system is necessary and whether it contains sufficient safeguards.
+But, subject to satisfactory answers on these questions, national security considerations may justify a closed material procedure, closed evidence (even without use of a special advocate) and, furthermore, (as in Kennedy itself) a blanket decision leaving the precise basis of determination unclear.
+There is however a further decision, even more recent than Kennedy, on which Mr Allen relies in an opposite sense.
+That is Uukauskas v Lithuania (Application No 16965/04) decided by the Second Section of the Court on 6 July 2010.
+The applicant had a licence to keep a pistol and hunting rifle.
+His request for a licence for another kind of firearm was refused and his existing licence was withdrawn, after his listing by the police in an operational records file maintained by the police to hold data for law enforcement bodies obtained during operational activities.
+He instituted proceedings challenging his listing, and the court, after examining classified material submitted by the police without disclosure to the applicant, upheld the listing.
+He complained to the European Court of Human Rights on the basis that there had been a breach of article 6(1).
+The Court said (para 48): The Court is not insensitive to the goals which the Lithuanian law enforcement authorities pursued through their operational activities.
+Likewise, the Court shares the Government's view that documents which constitute state secrets may only be disclosed to persons who possess the appropriate authorisation.
+And yet the Court notes that Lithuanian law and judicial practice provide that such information may not be used as evidence in court against a person unless it has been declassified, and that it may not be the only evidence on which a court bases its decision (see paras 20 22 above).
+It went on to indicate that the file was the only evidence of the applicants alleged danger to society, that he had repeatedly asked for its disclosure to him, even in part, and that, without it, he had no possibility of being apprised of the evidence against him or of being able to respond to it (paras 50 51).
+The Court concluded (para 51): In conclusion, therefore, the Court finds that the decision making procedure did not comply with the requirements of adversarial proceedings or equality of arms, and did not incorporate adequate safeguards to protect the interests of the applicant.
+It follows that there has been a violation of article 6(1) in the present case.
+The case has the special feature that the procedure adopted was contrary to Lithuanian law.
+Quite probably for this reason, no reference was made to any of the decisions considered in paras 28 to 36 of this judgment.
+There was evidently also no procedure under Lithuanian law for the use of a special advocate to consider closed material: the choice lay between declassification and no use of the material at all.
+The decision is therefore very far from the present, and does not offer assistance on the issues which arise on this appeal.
+(d) Necessity for a closed material procedure in this case
+In the present case, Mr Allen submits that no necessity is shown for a closed material procedure.
+He submits that the rule of law and the maintenance of the modern democratic state [will] not [be] imperilled if the Home Office loses this case for want of advancing a secret case.
+In other words, the worst that may happen is that the Home Office has to pay an unmeritorious claim.
+On this basis, Mr Allen distinguishes control order cases such as AF (No 3), in which it could be said that national security would be directly imperilled if secret evidence could not be used to justify imposing a control order.
+This distinction would positively encourage unmeritorious claims; and it would on any view mean that the government could only operate a security vetting system on pain of having to accept or pay all claims for discrimination which appeared sufficiently arguable to avoid being dismissed as abusive.
+The only other possibility is that a court might, following the Court of Appeal decision in Carnduff v Rock [2001] EWCA Civ 680, [2001] 1 WLR 1786, determine that, if the national security material could not be deployed in defence, the claim might not be fairly justiciable at all.
+Laws LJ said of this situation in Carnduff (para 36) that . a case which can only be justly tried if one side holds up its hands cannot, in truth, be justly tried at all.
+Under that possibility, it would be Mr Tariqs case which would fail in limine.
+Neither of these possibilities is one which the law should readily contemplate.
+In the penal context, an accused is presumed innocent until proved guilty; there is a public interest in the trial of suspects before a court, but it is better that the state should forego prosecution than that there should be any risk of an innocent person being found guilty through inability to respond to the full case against them.
+These imperatives do not operate in quite the same way in a civil context like the present, where the state may not be directly involved as a party at all.
+The rule of law must, so far as possible, stand for the objective resolution of civil disputes on their merits by a tribunal or court which has before it material enabling it to do this.
+In considering how this may be achieved, if a defendant can only defend itself by relying on material the disclosure of which would damage national security, a balance may have to be struck between the interests of claimant and defendant in a civil context.
+Mr Allens submission also involves anomalies.
+The Leander, Esbester and Kennedy cases demonstrate that, had Mr Tariq been claiming that the decision to suspend or remove security clearance was unjustified on its merits, he could not have complained about the use of a closed material procedure.
+Yet, on Mr Allens submission, all such a claimant would (presumably) have to do would be to claim damages, rather than any other relief.
+The Home Office could still only defend the claim by disclosing material contrary to the national interest; but, on Mr Allens case, no problem arises: the Home Office would not have to damage the national interest by making disclosure; instead, it could simply admit liability or defend fruitlessly and lose for want of being able to deploy the material.
+I cannot think that that is the law, in Strasbourg or domestically.
+(e) The acceptability of a special advocate procedure
+I do not therefore consider that a closed material procedure is in principle inconsistent with the right to an effective remedy in respect of alleged discrimination or with the Human Rights Convention.
+But there are further strings to Mr Allens case, which call for closer examination of the actual procedure, in particular the use of a special advocate.
+A special advocate procedure has been accepted as potentially useful in both United Kingdom and Strasbourg case law.
+Thus, in A v United Kingdom, addressing the issue of detention of terrorist suspects without trial, the Court of Human Rights said (para 220): The Court further considers that the special advocate could perform an important role in counterbalancing the lack of full disclosure and the lack of a full, open, adversarial hearing by testing the evidence and putting arguments on behalf of the detainee during the closed hearings.
+However, the special advocate could not perform this function in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate.
+The Court went on: While this question must be decided on a case by case basis, the Court observes generally that, where the evidence was to a large extent disclosed and the open material played the predominant role in the determination, it could not be said that the applicant was denied an opportunity effectively to challenge the reasonableness of the Secretary of State's belief and suspicions about him.
+In other cases, even where all or most of the underlying evidence remained undisclosed, if the allegations contained in the open material were sufficiently specific, it should have been possible for the applicant to provide his representatives and the special advocate with information with which to refute them, if such information existed, without his having to know the detail or sources of the evidence which formed the basis of the allegations.
+It concluded by saying that where the open material consisted of general assertions and the decision to maintain the detention was based solely or to a decisive degree on closed material, the procedural requirements of article 5(4) would not be satisfied.
+Domestically, the House of Lords in both Secretary of State for the Home Department v MB [2007] UKHL 46; [2008] AC 440 and Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269 accepted a special advocate procedure, while endorsing in AF (No 3) the applicability, in the context of control orders, of the approach taken in A v United Kingdom.
+Mr Allen draws attention to a report of the Joint Committee on Human Rights of the Houses of Lords and Commons on Counter Terrorism Policy and Human Rights (Session 2006 2007) (HL Paper 157, HC 394), published 30 July 2007, which precedes the cases mentioned in the previous paragraph.
+The Committee was addressing the use of special advocates in, in particular, control order proceedings, but it also heard evidence from four special advocates (including Ms Farbey who acts in this case), which ranged more widely.
+It identified a number of concerns.
+These included, first, the overriding duty to which it saw both SIAC and a court as being subject, to ensure that material was not disclosed contrary to the public interest, in other words its inability to balance the interests of justice to the individual against the public interest in non disclosure (paras 196 and 199).
+It was also concerned by, secondly, the difficulties presented if closed material was not gisted (paras 195 and 199) and, thirdly, the inflexibility of the prohibition on communication between special advocates and the person concerned or his or her legal representatives, once the special advocate had seen the closed material (paras 203 and 205).
+The first of these concerns is covered and resolved by case law subsequent to the Joint Committees Report.
+Under rule 54(2) the employment tribunal or judge has a discretion.
+This is subject to rule 54(4), according to which a tribunal or judge, when exercising its or his functions, shall ensure that information is not disclosed contrary to the interests of national security.
+But the tribunal or judge is subject to the overriding objective to deal with cases justly under regulation 3 of the Employment Procedure Regulations, and, most importantly also, obliged under section 3 of the Human Rights Act 1996 to interpret primary and secondary legislation in a way which is compatible with Convention rights.
+In Secretary of State for the Home Department v MB [2008] AC 440 (decided 31 October 2007), the House of Lords held that paragraph 4(3)(d) of the Prevention of Terrorism Act 2005 (the terms of which parallel those of rule 54(2)) should be read and given effect except where to do so would be incompatible with the right . to a fair trial (para 72, per Lady Hale; and see paras 84 and 92 per Lord Carswell and Lord Brown).
+The result was that, when and if the court did not consider that material could safely remain closed, the Secretary of State had a choice: either to disclose to the person concerned, or to withdraw reliance on the material.
+The House followed and applied this reasoning in Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269, when deciding that persons subject to control orders must be told the gist of the case against them.
+Applying it in the context of the present secondary legislation in rule 54(2), it means that, even if disclosure of material to the person concerned might involve some potential damage to national security, an employment tribunal or court might, weighing the interests of justice, conclude that either the state should make such disclosure, not merely to the special advocate but also to the person concerned, or it should withdraw any reliance on the material.
+Likewise, in relation to the third concern, it is a matter of discretion how far such contact is permitted, and the tribunal or judge can and should exercise such discretion flexibly and after balancing the competing interests.
+The second concern involves consideration of the case law and issue discussed in paras 28 to 37 above and 63 to 68 below.
+Mr Allen submits, first, that, despite the general endorsement of its potential appropriateness in these cases, the special advocate procedure involves flaws undermining its acceptability; and, secondly, that, even if the special advocate procedure is otherwise acceptable, this can only be on the basis of disclosure of the substance of the Home Offices case (gisting) in respect of Mr Tariq.
+Since the Court of Appeal accepted this second submission, it arises for consideration as a result of the Home Offices cross appeal.
+The flaws which Mr Allen identifies relate to the special advocates role and powers and the lack of guidance as to their exercise or supervision.
+These are matters of detail which he submits have gone largely and unjustifiably without scrutiny in previous cases.
+As to role, Mr Allen takes issue at the outset with the appointment of special advocates by the Attorney General who is the governments principal legal adviser.
+This is a point which was addressed and is the subject of previous authority in the form of the House of Lords decision in R v H [2004] UKHL 3; [2004] 2 AC 134, where the suitability of the Attorney General to act in this respect had been questioned in the courts below.
+Lord Bingham giving the unanimous opinion of the House said (para 46): In our opinion such doubt is misplaced.
+It is very well established that when exercising a range of functions the Attorney General acts not as a minister of the Crown (although he is of course such) and not as the public officer with overall responsibility for the conduct of prosecutions, but as an independent, unpartisan guardian of the public interest in the administration of justice: see Halsbury's Laws of England, 4th ed, vol 44(1) (1995), para 1344; Edwards, The Law Officers of the Crown (1964), pp ix, 286, 301 302.
+It is in that capacity alone that he approves the list of counsel judged suitable to act as special advocates or, now, special counsel, as when, at the invitation of a court, he appoints an amicus curiae.
+Counsel roundly acknowledged the complete integrity shown by successive holders of the office in exercising this role, and no plausible alternative procedure was suggested.
+It would perhaps allay any conceivable ground of doubt, however ill founded, if the Attorney General were to seek external approval of his list of eligible advocates by an appropriate professional body or bodies, but such approval is not in current circumstances essential to the acceptability of the procedure.
+Special advocates are appointed from the independent bar or solicitor advocates on the basis of open competition, and are selected for inclusion on the panel on the basis of their abilities.
+Mr Tariq was able to make representations as to the choice of his special advocate, in accordance with para 98 of the Treasury Solicitors Special Advocates Guide, Special Advocates A Guide to the Role of Special Advocates and the Special Advocates Support Office (SASO).
+His suggested choice was appointed.
+Para 88 of the Special Advocates Guide further makes clear that: The role of the Attorney General (or Solicitor General, acting in his place by virtue of section 1 Law Officers Act 1997) in appointing a special advocate is purely formal.
+No 'instructions' (other than in the purely formal sense) will come from the Law Officers to special advocates indicating any particular way that the case in which the special advocate is instructed is to be argued.
+That is a matter for special advocates and the appellant, to the extent that the appellant engages with the special advocates.
+Mr Allens first point on role is therefore one I reject.
+Mr Allen next submits that special advocates are subject to a conflict of interest which would be prohibited in private litigation.
+This is said to arise from the fact that they are supported by a unit (SASO) which is located within the Treasury Solicitors Department.
+It is not disputed (or disputable) that legal and administrative support is necessary for a special advocate procedure to work; and it is unclear as to where else such support might or should be located.
+The submission is simply that there is an impermissible conflict of interest.
+Reliance is placed on the Solicitors Code of Conduct 2007.
+Rule 3 precludes a solicitor from acting (without informed consent) where there is a conflict of interests defined as existing where, inter alia, the solicitor or his firm owes separate duties to act in the best interests of two or more clients in relation to the same or related matters, and those duties conflict, or there is a significant risk that those duties may conflict.
+Mr Allen further submits that there is no sufficient Chinese wall between SASO and the remainder of the Treasury Solicitors Office to enable reliance on that possibility, which was discussed in the House of Lords in Prince Jefri Bolkiah v KPMG [1999] 2 AC 222.
+In my opinion, these objections also fail.
+As to the former, the Treasury Solicitor does not have two clients and is not in breach of the professional code.
+The special advocate is an independent (security cleared) member of the bar or solicitor advocate, who is not professionally engaged by or on behalf of Mr Tariq, though he or she is charged to represent Mr Tariqs interests.
+As the Special Advocates Guide states (para 113): Actual conflicts of interest in the usual sense do not arise, since a special advocate owes no duty to the person whose interests he represents.
+However, a special advocate should be careful to ensure that no situation arises in which there could be any perception of anything other than absolute independence on his part.
+The Guide then reminds special advocates of the need for care to avoid any perceived conflict of interest when undertaking the role as well as in the future.
+SASO, which supports special advocates, operates for all practical purposes as a separate unit, with an established Chinese wall arrangement dividing it from the rest of the Treasury Solicitors Office.
+Maurice Kay LJ set out the position (para 30): SASO was set up in 2006 in response to the recommendation of the Constitutional Affairs Select Committee in its report on the operation of the Special Immigration Appeals Commission and use of SAs [special advocates] (7th report, session 2004 2005, 3 April 2005).
+The functions of SASO are described in Special Advocates A Guide to the Role of Special Advocates and the Special Advocates' Support Office, which is published on the Treasury Solicitor's Department's website.
+It is SASO that provides an SA with formal instructions.
+It also provides legal and administrative support to SAs and acts as the librarian of closed case law for them.
+Although formal instructions originate with SASO, it has no input into decisions such as whether to appeal a closed adverse judgment or to open part of a closed judgment.
+Such matters are for the independent judgment of the SA alone.
+Although SASO is physically located within the premises of the Treasury Solicitor at One Kemble Street, it has an established Chinese wall arrangement and is for all practical purposes a separate entity.
+It comprises five lawyers and three administrators.
+Four lawyers and two administrators form the SASO (closed) team, the remaining lawyer and administrator forming the SASO (open) team.
+The open team does not have security clearance.
+It alone communicates with the litigant's open representatives.
+Although other relevant litigation teams within the office of the Treasury Solicitor are able to share their facilities, this is not so in relation to SASO's resources and facilities.
+It has completely separate document handling, communication, storage and technology facilities.
+The four lawyers who carry out casework on cases in which the SAs are instructed do not carry out any work for any other part of the Treasury Solicitor's office.
+The fifth lawyer is at Grade 6 level.
+He does not have his own casework in relation to cases involving SAs.
+His role is more supervisory and he has a wider line management role which extends to the general private law litigation team.
+He may report to the Attorney General but only in relation to open issues in matters where SAs are instructed.
+In addition, in order to protect the independence of the SASO team, there are conflict checks to ensure that other members of the private law team do not act in cases which are in any way relevant to SASO.
+Mr Allen challenges the adequacy of this system.
+The information about its operation based on the Special Advocates Guide was amplified by a Home Office note produced during the Court of Appeal hearing.
+Mr Tariq invites scepticism about information provided in the context of litigation in which, he suggests, the Treasury Solicitor has an interest in the status quo.
+The information that SASO operates on a Chinese wall basis with the Treasury Solicitor teams who represent the Government in cases in which special advocates appear is however contained in the Special Advocates Guide (para 87).
+The arrangements described in both documents evidence a serious intention to achieve such a separation, and there is no reason to doubt their genuineness or efficacy.
+Significantly, as Maurice Kay LJ indicated in the passage quoted above, the position is that, although formal instructions originate with SASO, SASO has no input into special advocates decisions, which are taken only by the relevant independent special advocate.
+One can also be confident that, if any special advocate or court at any point suspected that the separation between SASO and other government legal teams was in any way incomplete, this would at once be brought to light.
+Maurice Kay LJ, based on his own experience, commented (para 32): If I may be permitted a subjective observation: if such problems were evident they would be expected to provoke adverse judicial comment but, in my experience, the system, although inherently imperfect, enjoys a high degree of confidence among the judges who deal with cases of this kind on a regular basis.
+In these circumstances, Mr Allen focuses on the fifth of the five SASO lawyers, a grade 6 lawyer who has no case work responsibility at all, but who does have a line management role in relation to both the SASO team and the Treasury Solicitors general private law team.
+He also chairs the monthly special advocates meetings at which cases and tactics are discussed, the minutes of which are sent to the Attorney Generals office, and he may occasionally brief the Attorney Generals office on open issues only.
+After pointing out that a person in Mr Tariqs position will instruct the special advocate before any closed material procedure begins, Mr Allen suggests that the description given of the grade 6 lawyers activity means that the content of such instructions could be shared with parts of the Treasury Solicitors office outside the SASO team or even with the Attorney General.
+I do not regard this as realistic.
+Substantive legal decisions are, as stated, taken by the special advocate.
+The grade 6 lawyer has no case work responsibility, and would not on the face of it be likely even to know of any instructions given by Mr Tariq.
+Even if he did know, disclosure to anyone outside the SASO team would involve a serious breach of his duty.
+There is no reason to think that minutes of the monthly meeting circulated to the Attorney Generals office would disclose such instructions, and the special advocate would presumably receive them and ensure that they did not.
+There is also no reason to think any briefing of the Attorney Generals office could or would go into detail about individual cases, still less about instructions given by Mr Tariq.
+It is clear that the Attorney General has no role and no detailed knowledge in relation to individual cases.
+In Prince Jefri Bolkiah v KPMG [1999] 2 AC 222 the House was concerned with accountants (KPMG) who were in possession of information confidential to a former client (Prince Jefri) which might be relevant to instructions which they then accepted from the Brunei Investment Agency, of which Prince Jefri had been chairman, to investigate the whereabouts of certain assets suggested to have been used by Prince Jefri for his own benefit.
+The House granted an injunction restraining KPMG from acting for the Agency.
+It held that the burden was on KPMG to show that there was no risk of the information coming into the possession of those within KPMG acting for the Agency.
+KPMG had attempted to erect a Chinese wall, but this was ad hoc and within a single department; further the two teams involved one which had acted for Prince Jefri and the one which was acting for the Agency contained large and rotating memberships of persons accustomed to working with each other.
+In these circumstances, the House held that, although there was no rule of law that Chinese walls or other similar arrangements were insufficient, nevertheless, to eliminate the risk, an effective Chinese wall needs to be an established part of the organisational structure of the firm, not created ad hoc and dependent on the acceptance of evidence sworn for the purpose by members of staff engaged on the relevant work (per Lord Millett, at p 239D E).
+The present case falls into an opposite category.
+SASO has a small team which works separately under arrangements which are not ad hoc, but well established, and it uses the services of independent outside special advocates, who can be relied upon to reinforce the culture and reality of such separation.
+There is no reason to doubt the genuineness and efficacy of the Chinese wall which has been set up in this way to service special advocates needs, in particular by providing assistance described in para 90 of the Special Advocates Guide.
+Mr Allen makes other further criticisms of the arrangements for special advocates: he submits that special advocates lack supervision, that there is insufficient guidance as to their role and that they lack any or sufficiently defined powers in respect of matters such as disclosure, the calling and cross examination of witnesses and appeal.
+I do not regard these criticisms as well founded or as rendering the whole closed material procedure unfair.
+Special advocates are experienced independent practitioners, accustomed to act of their own initiative and to take difficult decisions, and able to raise points of doubt or difficulty with the tribunal or court before which they appear.
+The special advocates role is familiar in a variety of contexts.
+It has been extensively described in the Special Advocates Guide.
+It divides into two parts, the open and closed.
+The Guide notes that throughout the open part, where the parties are exchanging open material, the special advocate will have the opportunity to meet the person in whose interests he or she is to act and to obtain as good an understanding as possible of his or her case (paras 99 100).
+Once the open stages have been completed the Secretary of State will serve his or her closed material upon the special advocate only (paras 101 102).
+The Guide goes on (para 102): The receipt of closed material marks the end of the period in which the special advocate may communicate directly with the appellant.
+It should be noted that communication with the appellant is still possible at this point but any communication from the special advocate to the appellant after this time requires the permission of the Court and the proposed format of it must be notified to the Secretary of State who can make objections if he so wishes (see SIAC Rule 36(4) and CPR 76.25(4)).
+During the closed phase, the special advocates role was summarised by Sedley LJ in Murungaru v Secretary of State for the Home Department [2008] EWCA Civ 1015, [2009] INLR 180 in this way at para 17: The ways in which a special advocate will seek to represent the interests of an appellant are, first, to test by cross examination, evidence and argument the strength of the case for non disclosure.
+Secondly, to the extent that non disclosure is maintained, the special advocate is to do what he or she can to protect the interests of the appellant, a task which has to be carried out without taking instructions on any aspect of the closed material.
+In relation to the protection of the interests of the person in Mr Tariqs position in relation to disclosure after the closed phase has begun, the Guide amplifies the special advocates role (in the largely parallel context of his or her role in proceedings before SIAC) as follows (para 103): It is now for the special advocate to take a view himself on the material and to decide whether any of what is contained within the closed material should in fact be made open (and therefore be disclosed to the appellant) because its disclosure would not harm the public interest e.g. the material is already in the public domain or could not be regarded as damaging to national security or other public interests.
+Sometimes, the special advocate will submit that a summary or gist of the material could be safely disclosed to the appellant.
+The special advocate has a period after service of the closed material in which to consider and prepare written submissions on what, if any, of the 'closed' material should become open.
+These are known as rule 38 submissions in SIAC and rule 29 submissions in Control Order proceedings (although they are in fact governed by CPR 76.29).
+These submissions may also include requests to the Secretary of State for further information or documents to be provided to the special advocate.
+This period has usually in SIAC been a period of two to three weeks (although no period is specified see SIAC Rules rule 38(3)).
+In the CPR, similar provisions specify a period of two weeks for the special advocate to indicate whether he challenges the Secretary of state's assessment of what is open and what is closed (see rule 76.29(3)), though the Court may modify it in appropriate circumstances.
+With regard to the hearing on the merits, the special advocate will be present during the open part, when he or she will have the opportunity to observe how the case is put by counsel both for and against the person whose interests the special advocate will be protecting during the closed phase.
+The closed hearing will take place, and all but the special advocate and the Secretary of State will withdraw.
+I see no reason why a special advocate may not, where appropriate, take steps to call factual or expert evidence during the closed phase, if necessary applying for any necessary witness summons.
+The Guide is in my view correct in contemplating this (para 108): There is also a possibility that the special advocate may call his own witnesses.
+This latter has never, to date, been undertaken, certainly not in a SIAC context.
+There appears no reason in principle, however, why this should not be possible, and special advocates in proceedings in the High Court will have the considerable advantage of being able to call on both the remainder of the CPR (insofar as not disapplied) and on the inherent jurisdiction of the Court to achieve such an end.
+In its June 2005 Response to the Constitutional Affairs Select Committee's Report into the Operation of SIAC and the Use of Special Advocates, the Government acknowledged that it is, in principle, open to special advocates in SIAC appeals to call expert evidence.
+On any appeal, it is well established that the special advocate is able both to appear and represent an appellants interests in any closed phase of the appeal.
+Mr Allen suggests that the special advocates role in positively instituting an appeal in relation to events or decisions occurring during the closed phase is insufficiently clear.
+Again (and consistently with Maurice Kay LJs description in para 30, cited in para 50 above) I see no reason why the special advocates role should not embrace this.
+The special advocate may, with the courts permission, communicate with Mr Tariq, even after the closed phase has begun (para 50 above); the court would no doubt permit a special advocate to inform a person in Mr Tariqs position that there were closed matters which merited consideration on appeal, even though such matters could not in any way be disclosed.
+In this way, an appeal could be lodged to enable the special advocate to pursue such matters, although the subject matter and basis of the appeal would remain unknown to the person in Mr Tariqs position.
+Reference to the Court of Justice
+Mr Allen submits that the Supreme Court should refer to the Court of Justice points arising in this case on which European Union law is relevant.
+Article 267 of the Treaty on the European Union provides: The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.
+Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring
+the matter before the Court
+The principles of European Union law which arise for consideration in this case are clear.
+There must in particular be effective legal protection in respect of the rights not to be discriminated against which Mr Tariq invokes, and, so far as guidance is necessary, it is to be found for the relevant purposes in the European Convention on Human Rights and the case law of the European Court of Human Rights.
+The principles which the European Court of Human Rights would apply in the area of national security have been confirmed recently by the decision in Kennedy.
+The questions before the Supreme Court involve the application of such principles to the circumstances of this case, and in particular to the closed material procedure involving a special advocate which the Employment Tribunal has ordered.
+There is on this basis no question of interpretation of the European Treaties which calls for a reference under article 267 as explained by the Court of Justice in Case 283/81 Srl CILFIT v Ministry of Health [1982] ECR 3415.
+It is not the role of the Court of Justice to rule on the application of established general criteria to a particular provision or arrangement, which must be considered in the light of the particular circumstances of the case in question: compare Case C 237/02 Freiburger Kommunalbauten GmbH Baugesellschaft & Co KG v Hofstetter [2004] 2 CMLR 291, paras 21 23, explaining and distinguishing Joined Cases C 240/98 to 244/98 Ocano Grupo Editorial SA v Murciano Quintero [2002] 1 CMLR 1226.
+I add that, if Mr Tariq were to have cause for complaint about the application of the relevant legal principles as established by the European Convention on Human Rights, there will always exist the potential to seek redress in Strasbourg.
+The European Court of Human Rights is not limited to the examination of questions of interpretation or law arising under the Convention, but will re examine the fairness of their application as a whole in the light of the circumstances of the particular case.
+It follows that I would hold that the use of a closed material procedure before the Employment Tribunal was and is lawful in the present case, and dismiss Mr Tariqs appeal accordingly.
+The Home Offices appeal
+It is as well to bear in mind at the outset that the general nature of the Home Offices case has been communicated to Mr Tariq.
+It is that the Home Office was concerned in August 2006 that [Mr Tariq] could be vulnerable to an approach to determine if terrorist suspects had been flagged to the authorities or to smuggle prohibited items airside and that its decision to withdraw security clearance in December 2006 was based on [his] close association with individuals suspected of involvement in plans to mount terrorist attacks and on its view that association with such individuals might make him vulnerable to attempts to exert undue influence on [him] to abuse his position: para 5 above; Mr Tariq must be able to meet this case on a general basis, in particular, by disclosing and describing his relationship and the nature and extent of his association with those of his relatives suspected and his cousin who was ultimately convicted of terrorist activity; and he has, further, on the basis of, in particular, his questioning in interview also been able to mount a sufficiently arguable case of discrimination to avoid any application to strike out his claim: para 6 above.
+What is in issue is the declaration made by the Employment Appeal Tribunal and upheld by the Court of Appeal to the effect that article 6 of the European Convention on Human Rights requires [Mr Tariq] to be provided with the allegations being made against him in sufficient detail to enable him to give instructions to his legal team so that those allegations can be challenged effectively: para 3 above.
+This is worth repeating, because some language used in the Court of Appeal might suggest that Mr Tariq knew nothing at all of the nature of the case against him, as opposed to particular allegations supporting it.
+Thus, for example, Maurice Kay LJ said that, although a closed material procedure was in principle justified, it was none the less the right of a litigant to know the essence of the case against him, if necessary by gisting ([2010] ICR 1034, para 43).
+He went on to acknowledge that, in a particular case, this may put the public authority in the invidious position of having to make difficult decisions about disclosure and whether or how a claim is to be defended, but said that all that is for the future in this litigation.
+It is the consequence of the requirements of justice.
+The Home Office by its appeal challenges this conclusion, pointing out that it raises directly the dilemma addressed by the Court of Appeal in the case of Carnduff v Rock [2001] EWCA Civ 680, [2001] 1 WLR 1786.
+If the disclosure of material would harm national security, but without disclosure the public authority could not defend and would have to capitulate, the claim itself may not be justiciable.
+The appeal raises the question whether there is an absolute requirement that a claimant should him or herself see and know the allegations forming the basis of the states defence in sufficient detail to give instructions to the defence legal team to enable the allegations to be challenged effectively.
+One problem about the declaration made by the Employment Appeal Tribunal and upheld by the Court of Appeal is that it is questionable whether or how far it differs in any significant way from the ordinary duty of any party in any litigation to disclose the nature of its factual allegations, where no issue of national security arises at all.
+A second point is that the declaration made does not correspond with any requirement expressed in section 7 of the Employment Tribunals Act 1996 or in the language of the statutory instruments made under that Act.
+But the submission is no doubt that, if the Convention requires gisting of the nature declared in every case, even though this could damage national security, then the court should under section 3 of the Human Rights Act 1998 find it possible to read into the Employment Tribunals Act 1996 and the ET Procedure Rules and ET National Security Rules introduced under it, some qualification to enable such gisting to occur.
+The question is therefore whether there is in the European Convention on Human Rights, as explained by the European Court of Human Rights, any such absolute requirement, where this would involve the disclosure to Mr Tariq of the detail of allegations which would in normal litigation require to be disclosed, but which the interests of national security require to be kept secret.
+Clearly, it is a very significant inroad into conventional judicial procedure to hold a closed material procedure admissible, if it will lead to a claimant not knowing of such allegations in such detail.
+As the Home Office acknowledges, it is an inroad which should only ever be contemplated or permitted by a court, if satisfied after inspection and full consideration of the relevant material as well as after hearing the submissions of the special advocate, that it is essential in the particular case; and this should be kept under review throughout the proceedings.
+However, to say that it is not possible under the Convention as interpreted by the Court in Strasbourg is in my view impossible, in the light of the clear line of jurisprudence culminating in the Courts decision in Kennedy which I have already discussed in paras 27 to 37 above.
+It is significant that, when the Court of Appeal reached its decision, it did not have the benefit of Kennedy.
+I would therefore allow the Home Offices appeal, and set aside the declaration made below to the effect that there exists an absolute requirement that Mr Tariq personally or his legal representatives be provided with sufficient detail of the allegations made against him to enable him to give instructions to his legal representatives on them.
+As I have indicated, both Mr Tariq and his legal representatives already know of the general nature of the Home Offices case.
+The Employment Tribunal will, with the assistance of the special advocate, keep under review and will be able to determine whether any and what further degree of gisting of the Home Offices case, or of disclosure regarding the detail of allegations made in support of it, is required, having regard to (a) the nature of the relevant allegations and of the national security interest in their non disclosure and in the light of its best judgment as to (b) the significance of such allegations for the Home Offices defence and (c) the significance for Mr Tariqs claim of the disclosure or non disclosure of such allegations to him.
+Employment Tribunals Act 1996, section 10 ANNEX (judgment, para 9) (5) Employment tribunal procedure regulations may make provision enabling a Minister of the Crown, if he considers it expedient in the interests of national security (a) to direct a tribunal to sit in private for all or part of particular Crown employment proceedings; (b) to direct a tribunal to exclude the applicant from all or part of particular Crown employment proceedings; (c) to direct a tribunal to exclude the applicant's representatives from all or part of particular Crown employment proceedings; (d) to direct a tribunal to take steps to conceal the identity of a particular witness in particular Crown employment proceedings; (e) to direct a tribunal to take steps to keep secret all or part of the reasons for its decision in particular Crown employment proceedings. (6) Employment tribunal procedure regulations may enable a tribunal, if it considers it expedient in the interests of national security, to do in relation to particular proceedings before it anything of a kind which, by virtue of subsection (5), employment tribunal procedure regulations may enable a Minister of the Crown to direct a tribunal to do in relation to particular Crown employment proceedings. (7) In relation to cases where a person has been excluded by virtue of subsection (5)(b) or (c) or (6), employment tribunal procedure regulations may make provision (a) for the appointment by the Attorney General . of a person to represent the interests of the applicant; .
+The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861) Schedule 1 The Employment Tribunals Rules of Procedure 54(1) A Minister of the Crown (whether or not he is a party to the proceedings) may, if he considers it expedient in the interests of national security, direct a tribunal or Employment Judge by notice to the Secretary to: (a) conduct proceedings in private for all or part of particular Crown employment proceedings; (b) exclude the claimant from all or part of particular Crown employment proceedings; (c) exclude the claimant's representative from all or part of particular Crown employment proceedings; (d) take steps to conceal the identity of a particular witness in particular Crown employment proceedings. (2) A tribunal or Employment Judge may, if it or he considers it expedient in the interests of national security, by order (a) do in relation to particular proceedings before it anything which can be required by direction to be done in relation to particular Crown employment proceedings under paragraph (1); (b) order any person to whom any document (including any judgment or record of the proceedings) has been provided for the purposes of the proceedings not to disclose any such document or the content thereof: (i) to any excluded person; (ii) in any case in which a direction has been given under [sub ]paragraph (l)(a) or an order has been made under [sub ]paragraph (2)(a) read with sub paragraph (1)(a), to any person excluded from all or part of the proceedings by virtue of such direction or order; or (iii) in any case in which a Minister of the Crown has informed the Secretary in accordance with paragraph (3) that he wishes to address the tribunal or Employment Judge with a view to an order being made under sub paragraph (2)(a) read with sub paragraph (l)(b) or (c), to any person who may be excluded from all or part of the proceedings by virtue of such an order, if an order is made, at any time before the tribunal or Employment Judge decides whether or not to make such an order; (c) take steps to keep secret all or part of the reasons for its judgment.
+The tribunal or Employment Judge (as the case may be) shall keep under review any order it or he has made under this paragraph. (3) In any proceedings in which a Minister of the Crown considers that it would be appropriate for a tribunal or Employment Judge to make an order as referred to in paragraph (2), he shall (whether or not he is a party to the proceedings) be entitled to appear before and to address the tribunal or Employment Judge thereon.
+The Minister shall inform the Secretary by notice that he wishes to address the tribunal or Employment Judge and the Secretary shall copy the notice to the parties. (4) When exercising its or his functions, a tribunal or Employment Judge shall ensure that information is not disclosed contrary to the interests of national security.
+The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Schedule 2 The Employment Tribunals (National Security) Rules of Procedure 8 Special advocate (1) In any proceedings in which there is an excluded person the tribunal or Employment Judge shall inform the Attorney General of the proceedings before it with a view to the Attorney General , if he thinks it fit to do so, appointing a special advocate to represent the interests of the claimant in respect of those parts of the proceedings from which (a) any representative of his is excluded; (b) both he and his representative are excluded; or (c) he is excluded, where he does not have a representative. (2) A special advocate shall have a general qualification for the purposes of section 71 of the Courts and Legal Services Act 1990 or shall be an advocate or a solicitor admitted in Scotland. (3) Where the excluded person is the claimant, he shall be permitted to make a statement to the tribunal or Employment Judge before the commencement of the proceedings, or the part of the proceedings, from which he is excluded. (4) Except in accordance with paragraphs (5) to (7), the special advocate may not communicate directly or indirectly with any person (including an excluded person) (a) (except in the case of the tribunal, Employment Judge and the respondent) on any matter contained in the grounds for the response referred to in rule 3(3); (b) (except in the case of a person who was present) on any matter discussed or referred to during any part of the proceedings in which the tribunal or Employment Judge sat in private in accordance with a direction or an order given or made under rule 54. (5) The special advocate may apply for orders from the tribunal or Employment Judge authorising him to seek instructions from, or otherwise to communicate with, an excluded person (a) on any matter contained in the grounds for the response referred to in rule 3(3); or (b) on any matter discussed or referred to during any part of the proceedings in which the tribunal or Employment Judge sat in private in accordance with a direction or an order given or made under rule 54. (6) An application under paragraph (5) shall be made in writing to the Employment Tribunal Office and shall include the title of the proceedings and the grounds for the application. (7) The Secretary shall notify the Minister of an application under paragraph (5) and the Minister shall be entitled to address the tribunal or Employment Judge on the application. (8) In these rules and those in Schedule I, in any case in which a special advocate has been appointed to represent the interests of the claimant in accordance with paragraph (I), any reference to a party shall (save in those references specified in paragraph (9)) include the special advocate. 10 Reasons in national security proceedings (1) This rule applies to written reasons given under rule 30 of Schedule 1 for a judgment or order made by the tribunal or Employment Judge in national security proceedings. (2) Before the Secretary sends a copy of the written reasons ('the full written reasons') to any party, or enters them in the Register under rule 32 of Schedule I, he shall send a copy of the full written reasons to the Minister. (3) If the Minister considers it expedient in the interests of national security and he has given a direction or the tribunal or an Employment Judge has made an order under rule 54 in those proceedings, the Minister may (a) direct the tribunal or Employment Judge that the full written reasons shall not be disclosed to persons specified in the direction, and to prepare a further document ('the edited reasons') setting out the reasons for the judgment or order, but with the omission of such of the information as is specified in the direction; (b) direct the tribunal or Employment Judge that the full written reasons shall not be disclosed to persons specified in the direction, but that no further document setting out the tribunal or Employment Judge's reasons should be prepared. (4) Where the Minister has directed the tribunal or Employment Judge in accordance with sub paragraph 3(a), the edited reasons shall be signed by the Employment Judge and initialled in each place where an omission has been made. (5) Where a direction has been made under sub paragraph (3)(a), the Secretary shall (a) send a copy of the edited reasons referred to in subparagraph (3)(a) to any person specified in the direction and to the persons listed in paragraph (7); (b) enter the edited reasons in the Register, but omit from the Register the full written reasons; and (c) send a copy of the full written reasons to the persons listed in paragraph (7). (6) Where a direction has been made under sub paragraph (3)(b), the Secretary shall send a copy of the full written reasons to the persons listed in paragraph (7), but he shall not enter the full written reasons in the Register. (7) The persons to whom full written reasons should be sent in accordance with paragraph (5) or (6) are (a) the respondent; (b) the claimant or the claimant's representative if they were not specified in the direction made under paragraph (3); (c) if applicable, the special advocate; (d) where the proceedings were referred to the tribunal by a court, to that court; and (e) where there are proceedings before a superior court (or in Scotland, an appellate court) relating to the decision in question, to that court.
+The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Regulation 2 Definitions excluded person means, in relation to any proceedings, a person who has been excluded from all or part of the proceedings by virtue of: (a) a direction of a Minister of the Crown under rule 54(1)(b) or (c) of Schedule 1, or (b) an order of the tribunal under rule 54(2)(a) read with 54(1)(b) or (c) of Schedule 1; national security proceedings means proceedings in relation to which a direction is given under rule 54(1) of Schedule 1, or an order is made under rule 54(2) of that Schedule; special advocate means a person appointed in accordance with rule 8 of Schedule 2 .
+LORD HOPE
+I agree that, for the reasons so fully set out by Lord Mance in his judgment and the further reasons given by Lord Brown and Lord Dyson, the appeal by the Home Office should be allowed and that the cross appeal by Mr Tariq should be dismissed.
+At the heart of both the appeal and the cross appeal are two principles of great importance.
+They pull in different directions.
+On the one hand there is the principle of fair and open justice.
+As OConnor J declared in Hamdi v Rumsfeld 542 US 507 (2004), 533, parties whose rights are to be affected are entitled to be heard and in order that they may enjoy that right they must first be notified.
+In European Convention terms, this is the principle of equality of arms which is part of the wider concept of a fair trial: Kennedy v United Kingdom (Application No 26839/05) (unreported) 18 May 2010, para 184.
+On the other there is the principle that gives weight to the interests of national security.
+This is one of the legitimate aims referred to in articles 8(2), 10(2) and 11(2) of the Convention.
+The extent of the discretion that must be accorded to the national authorities in this field was recognised in Leander v Sweden (1987) 9 EHHR 433, para 59.
+National security was described as a strong countervailing public interest in Kennedy, para 184.
+But it must be weighed against the fundamental right to a fair trial.
+The context will always be crucial to a resolution of questions as to where and how this balance is to be struck.
+Mr Tariq was employed by the Home Office in a capacity for which security clearance was required in the interests of national security.
+To be effective security vetting will usually, if not invariably, require to be carried out in secret.
+Its methods and the sources of information on which it depends cannot be revealed to the person who is being vetted.
+Those who supply the information must be able to do so in absolute confidence.
+In some cases, their personal safety may depend on this.
+The methods, if revealed to public scrutiny, may become unusable.
+These are the unusual circumstances in which the claim Mr Tariq seeks to make in this case must be determined.
+Mr Tariqs complaint against the Home Offices decision to suspend his security clearance is that it was based on grounds that amounted to direct or indirect discrimination against him on grounds of his race and religion.
+There is no doubt that he is entitled to a fair and public hearing in the relevant tribunal of his claim that the rights conferred on him by the Race Relations Act 1976 and the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660) have been breached.
+The principle of equal treatment is part of European Union law, but it is for national law to ensure that the right to a fair hearing is respected according to the principles established under the European Convention.
+By section 10(6) of the Employment Tribunals Act 1996 it is provided that the employment tribunal procedure regulations may enable a tribunal, if it considers it expedient in the interests of national security, to adopt a closed procedure.
+Section 10(7) of the 1996 Act provides that the procedure regulations may make provision in that event for the appointment by the Attorney General of a special advocate to represent the interests of the applicant.
+The provisions that were made in the exercise of that power are to be found in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861).
+Rule 54 of Schedule 1 to the Regulations provides for the use of closed procedure, and rule 8 of Schedule 2 provides for the appointment of special advocates.
+No one doubts Mr Tariqs right not to be discriminated against on grounds of his race or his religion.
+But it was his own choice to seek employment in a post for which, in the interests of national security, security clearance was required.
+He was a volunteer, not a conscript.
+This is not a case where he is the victim of action taken against him by the state which deprived him of his fundamental rights.
+Furthermore, as I have already indicated, security vetting is a highly sensitive area.
+Its intensity will no doubt vary from case to case, but common to them all is the need to preserve the integrity of sources of information and the methods of obtaining it.
+That must always be the paramount consideration, whatever the nature of the proceedings in which the issue arises.
+It ensures that the national interest is protected when people are appointed to posts where security clearance is required.
+Issues of employment and discrimination law raised by people appointed to those posts may require access to the way this process has been carried out.
+It was no doubt for that reason that the use of the closed procedure and the appointment of special advocates was expressly authorised by the statute.
+The question then is whether the difficulties that Mr Tariq faces in making good his discrimination claim are sufficiently counterbalanced by the procedures that the Home Office wishes the employment tribunal to adopt.
+First, there is the use of the closed procedure for the consideration of the material on which the Home Office wishes to rely in its defence.
+Is the procedure that the Regulations have prescribed for use in national security cases compatible with European Union law? This is the point raised by Mr Tariqs cross appeal.
+Second, if the use of the closed procedure is lawful, how is it to be applied in this case? Is the Home Office obliged to give sufficient detail of the material on which it relies to enable Mr Tariq to give detailed instructions to his special advocate to enable that material to be challenged effectively? This is the point raised by its appeal.
+The Court of Appeal held that the principle illustrated by Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269 must apply.
+This was despite the fact that this would put the Home Office in the invidious position of having to make decisions as to whether, and if so how, the claim was to be defended: [2010] EWCA Civ 462, [2010] ICR 1034, para 50.
+I have found the second issue more troublesome than the first.
+As to the first, which is the issue raised in Mr Tariqs cross appeal, the question is whether the use of the closed procedure in cases of this type impairs the very essence of his right to a fair trial.
+The right to a fair trial itself is an absolute right, but rights that are to be implied from article 6 of the European Convention are not: Brown v Stott [2003] 1 AC 681, 719.
+Their purpose is to give effect, in a practical way, to the fundamental right.
+The right to a fair hearing must ordinarily carry with it the right to have proceedings conducted in open court, with full disclosure by both sides.
+But, for the reasons already mentioned, the use of an open procedure where details of the security vetting process are in issue cannot be resorted to without risk to the integrity of the system which in the national interest must be preserved.
+The observations of the Court of Justice in Joined Cases C 402/05P and C 415/05P Kadi v Council of the European Union [2009] AC 1225, para 344 indicate that European law is willing to accept a closed material procedure in the interests of national security so long as the individual is accorded a sufficient measure of procedural justice.
+That this is the position that the Strasbourg court too has adopted is amply demonstrated by its decisions in Kennedy v United Kingdom, paras 184 190.
+Parliament has expressed a clear democratic judgment that the tribunal may in its discretion make use of the closed procedure with the assistance of a special advocate.
+As for the procedure that the 2004 Regulations provide for, several features indicate that the balance has been struck in the right place.
+First, there is the fact that, under the procedure provided for by rule 54(2) of Schedule 1 to the Regulations, the decision as to whether closed procedure should be resorted to rests with the tribunal or the employment judge.
+The fact that the decision is taken by a judicial officer is important.
+It ensures that it is taken by someone who is both impartial and independent of the executive.
+Second, there is the fact that, as this is a judicial decision, it will not be taken without hearing argument in open court from both sides.
+It will be an informed decision, not one taken without proper regard to the interests of the individual.
+Third, it opens the door to the use of the special advocate.
+Fourth, it is a decision that can and should be kept under review as the case proceeds: see the last sentence of rule 54(2).
+Fifth, the special advocate can and should be heard as the process of keeping it under review proceeds.
+As against all that, account must be taken of the consequences for national security if this procedure were not to be available to the tribunal.
+Without it, there would be a stark choice: to conduct the entire defence in open proceedings however damaging that might be to the system of security vetting, and in particular to those who contributed to it in this case; or to concede the case and accept the consequences.
+They would not only be financial.
+They would lead to the government being seen as an easy target for unjustified claims.
+That would be a field day for the unscrupulous.
+They could lead to tensions if those who were in a position to make discrimination claims were thought to be enjoying an unfair advantage because their claims were not likely to be contested if they were to be pressed to the point of a public hearing.
+I think that the balance lies firmly in favour of allowing the tribunal, in its discretion, to make use of the closed procedure.
+I would dismiss the cross appeal.
+As for the second issue, there is a very real problem.
+Procedural justice indicates that Mr Tariq should be given sufficient information to enable him to give detailed instructions to his special advocate so that she can challenge the withheld material on his behalf.
+But Mr Eadie QC for the Home Office insists that the process of gisting as envisaged in Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269 cannot be resorted to in this case without risk to those who were involved in the security vetting process.
+In the AF (No 3) case I said that what would be needed would vary from case to case, and that the judge would be in the best position to strike the balance between what was needed to enable the special advocate to challenge the case against the individual and what could properly be kept closed: para 86.
+But I also said that if the concept of an effective challenge was to be applied, where detail matters it must be met by detail: para 87.
+That is what Mr Eadie objects to in this case.
+Here again the context for the argument is what matters.
+This is an entirely different case from Secretary of State for the Home Department v AF (No 3).
+There the fundamental rights of the individual were being severely restricted by the actions of the executive.
+Where issues such as that are at stake, the rule of law requires that the individual be given sufficient material to enable him to answer the case that is made against him by the state.
+In this case the individual is not faced with criminal proceedings against him or with severe restrictions on personal liberty.
+This is a civil claim and the question is whether Mr Tariq is entitled to damages.
+He is entitled to a fair hearing of his claim before an independent and impartial tribunal.
+But the Home Office says that it cannot defend the claim in open proceedings as, for understandable reasons, it cannot reveal how the security vetting was done in his case.
+That conclusion is unavoidable, given the nature of the work Mr Tariq was employed to do.
+How then is the balance to be struck here? Mr Tariq will be at a disadvantage if the closed procedure is adopted.
+But the disadvantage to the Home Office is greater, as unless the closed procedure is adopted it will have to concede the claim.
+There is no way that the disadvantage to the Home Office can be minimised.
+It will simply be unable to defend itself.
+It will be unable to obtain a judicial ruling on the point at all.
+That would plainly be a denial of justice.
+The disadvantage to Mr Tariq, on the other hand, is less clear cut.
+He is not entirely without information, as the general nature of the Home Offices case has been disclosed to him.
+He will have the services of the special advocate, with all that that involves second best by far, no doubt, but at least the special advocate will be there.
+His claim will be judicially determined by an independent and impartial tribunal, which can be expected to take full account of the fact that the details of the case for the Home Office have had to be kept closed.
+If inferences have to be drawn because of the quality or nature of the evidence for the Home Office, they will have to be drawn in Mr Tariqs favour and not against him.
+And throughout the process the need for the evidence to be kept closed will be kept under review as rule 54 of Schedule 1 to the Regulations requires, with the assistance of the special advocate.
+There cannot, after all, be an absolute rule that gisting must always be resorted to whatever the circumstances.
+There are no hard edged rules in this area of the law.
+As I said at the beginning, the principles that lie at the heart of the case pull in different directions.
+It must be a question of degree, balancing the considerations on one side against those on the other, as to how much weight is to be given to each of them.
+I would hold that, given the nature of the case, the fact that the disadvantage to Mr Tariq that the closed procedure will give rise to can to some extent be minimised and the paramount need to protect the integrity of the security vetting process, the balance is in favour of the Home Office.
+I would allow the appeal.
+LORD BROWN
+I have read Lord Mances comprehensive judgment and, like him, would allow the Home Offices appeal and dismiss Mr Tariqs cross appeal.
+As to the cross appeal the question whether a closed material procedure in the employment tribunal can ever be compatible with the Race Directive and the Equal Treatment Framework Directive there is almost nothing I wish to add to Lord Mances judgment.
+To my mind plainly it can.
+The submission that it is never necessary for reasons of national security to deploy secret evidence in employment tribunal discrimination proceedings because instead the government can simply pay up I find not merely unpersuasive but wholly preposterous.
+Is it seriously to be suggested that, however unmeritorious such claims may be, the complainant should simply be paid off? Taxpayers money aside, consider the appalling consequences for the governments reputation were there to be a succession of findings of unlawful racial or religious discrimination and the insidious effect of all this upon relations between different racial groups.
+As for the appeal in effect the question whether a complainant in Mr Tariqs position has to be provided with sufficient details of the allegations being made against him (however sensitive the information on which they are based) to enable him to give instructions to his special advocate in order effectively to challenge them I conclude no less clearly that this is not required.
+On this question, however, I wish to add a few further thoughts of my own.
+It is, as I understand it, Mr Tariqs case on the appeal apparently supported by Mr John Howell QC for JUSTICE and Liberty that, assuming (contrary to his primary case) that a closed material procedure is available at all in employment tribunal proceedings, the complainant has exactly the same rights to be provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate as the Grand Chamber in A v United Kingdom (2009) 49 EHRR 625 (at para 220) decided had to be given to those deprived of their liberty at Belmarsh Prison pursuant to the Anti terrorism, Crime and Security Act 2001.
+For simplicitys sake I shall call this degree of disclosure A type disclosure.
+As is well known, the nine Members of the House of Lords sitting in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269 unanimously held that A type disclosure was similarly required in control order cases under the regime established by the Prevention of Terrorism Act 2005 in place of the detention regime.
+Substantially relying on A and on AF (No 3), Mr Allen QC submits that in any special advocate context to which article 6 applies, there is required an irreducible minimum standard of fairness which in every case demands A type disclosure.
+Prominent amongst the passages prayed in aid from the AF (No 3) judgments are, to my considerable surprise, these from my own judgment: . the suspect must always be told sufficient of the case against him to enable him to give effective instructions to the special advocate, notwithstanding that sometimes this will be impossible and national security will thereby be put at risk (para 116).
+Plainly there now is a rigid principle.
+Strasbourg has chosen in para 220 of A to stipulate the need in all cases to disclose to the suspect enough about the allegations forming the sole or decisive grounds of suspicion against him to enable him to give effective instructions to the special advocate (para 119).
+The argument, notwithstanding its apparent acceptance by the Court of Appeal, is to my mind unsustainable.
+As all the judgments in AF (No 3), my own not least, made plain, the Grand Chambers judgment in A was to be regarded as indistinguishable simply because of the striking similarities between the two situations then under consideration: Belmarsh detention and the control order regime.
+To suggest that the identical rigid principle will be imported into every situation where article 6 applies notwithstanding that sometimes this [A type disclosure] will be impossible and national security will thereby be put at risk is absurd.
+It is, indeed, to re assert here the very argument already rejected in relation to the cross appeal: the argument that, if giving effect to A type disclosure will compromise national security, then it is always open to government instead to pay up.
+True it is that in the control order context, government has on a number of occasions since AF (No 3) chosen to abandon the control order rather than make the necessary degree of disclosure.
+That, however, is a far cry from recognising that governments should face the same dilemma in the context of a monetary claim for discrimination.
+Although the Court of Appeal did not regard these cases as being in a different category (para 50 of Maurice Kay LJs judgment below), for my part I strongly disagree.
+Not merely, moreover, is there no support for Mr Allens argument to be found in our domestic jurisprudence but, as Lord Mance convincingly demonstrates, it is now clearly belied by a series of Strasbourg decisions culminating most recently and most decisively in Kennedy v United Kingdom (Application No 26839/05) (unreported) 18 May 2010.
+Kennedy concerned a complaint, largely on article 6 grounds, against the ruling of the Investigatory Powers Tribunal (IPT) made on 23 January 2003 as to the legality of various of their rules.
+A sufficient description of the highly restrictive nature of these rules is to be found at paras 7 and 25 of my judgment in this Court in R (A) v Director of Establishments of the Security Service [2009] UKSC 12, [2010] 2 AC 1 (at paras 8 and 30 of which I noted that the IPTs own decision on these rules was shortly to be considered by the European Court of Human Rights, as now it has been in Kennedy).
+The Court in Kennedy assumed (at para 179 of its judgment) that article 6 applies to proceedings before the IPT and then, at paras 181 190 of its judgment (cited by Lord Mance at paras 34 and 35 above) comprehensively rejected the claim that it had been violated.
+There could hardly be a clearer example of a procedure being held compliant with article 6 notwithstanding the conspicuous absence of anything approaching A type disclosure.
+The final comments I wish to make in the appeal are these.
+Security vetting by its very nature often involves highly sensitive material.
+As an immigration officer, Mr Tariq required security clearance to a comparatively high level (above that of a counter terrorist check albeit below that of developed vetting).
+Immigration officers require long term, frequent and controlled access to secret information and assets.
+It is surely, therefore, not altogether surprising that, upon his brothers and his cousins arrest and more particularly since his cousins conviction and life sentence for conspiracy to murder arising out of a terrorist plot to attack transatlantic flights from Heathrow he has been suspended from duty (albeit continuing to be paid) and his security clearance withdrawn.
+No one suggests that Mr Tariq himself was involved in the plot.
+What is suggested, however, is that he could be vulnerable to pressures from someone in his community to abuse his position as an immigration officer.
+Mr Tariq submitted an internal appeal against the Departmental Security Officers decision to withdraw his security clearance but this was dismissed by the Permanent Secretary of the Home Office (following his consideration of a full report from the Director of Human Resource Services).
+Mr Tariq then made a further appeal to the Security Vetting Appeals Panel (SVAP) (presided over by a retired High Court judge) which held both open and closed hearings, with a special advocate appointed for the closed hearings, and which as recently as January 2011 dismissed the appeal. (No objection is taken to the SVAPs use of a closed procedure and special advocate, apparently on the basis that it was bound to use such a procedure and that in any event its decision on the appeal is solely advisory, the department being free to ignore it.)
+We know nothing of the underlying facts of this case.
+Assume, however, in a case like the present that someone in the employees community (perhaps a relative or associate) has given information in confidence to those responsible for reviewing the employees security clearance which is detrimental to his case.
+Perhaps it belies assurances he has given as to the limited nature and extent of his contacts with those suspected of terrorist activity.
+It surely goes without saying that nothing of this could properly be disclosed to the employee beyond perhaps telling him that the department was not satisfied with the assurances he has given.
+To give chapter and verse of any inconsistencies between those assurances and the information given to the department would be to betray the information provided and quite likely put its provider at risk.
+Similar considerations could well apply even in respect of an initial vetting procedure.
+Is it really sensible, one cannot help wondering, to attempt to force disputes in such cases as these into the comparative straitjacket of employment tribunal proceedings.
+Even if it is, is it sensible to operate in parallel two sets of proceedings, both with closed procedures and special advocates, one before the SVAP, the other before the Employment Tribunal.
+Of course I recognise that the issues they are determining are not identical.
+But there must inevitably be some substantial overlap between them and the effort, time and expense involved in all this hardly bears thinking about.
+In my judgment in R (A) v Director of Establishments of Security Service (at paras 34 and 35) I expressly contemplated that in certain circumstances the IPTs exclusive jurisdiction might with advantage be widened.
+True, I was not considering a case like the present.
+I seriously wonder, however, whether it might not be wise to channel all disputes arising in security vetting cases to a single tribunal if not the IPT itself, then a body sharing some at least of its characteristics.
+That, however, is a thought for the future perhaps for consideration in relation to a Green Paper we are told will be published later this year with regard to possible ways of resolving, or at least mitigating, the undoubted problems faced by Government in litigation raising sensitive security issues.
+LORD KERR
+Introduction
+On 14 February 2008 the Employment Tribunal dealing with Mr Tariqs case sent to the minister a copy of the reasons it proposed to give for making its order under rule 54 of the First Schedule to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861).
+It was required to do so by rule 10 of the Employment Tribunals (National Security) Rules 2004 which are contained in Schedule 2 to the 2004 Regulations.
+The reasons were amended by the minister (or, more probably, by someone acting on his behalf) and were eventually issued to the claimant and his advisers in their amended form on 15 October 2008.
+The reasons that the tribunal proposed to give Mr Tariq related to the way in which his case would be dealt with.
+They purported to explain why he and his representatives would be excluded from those parts of the proceedings at which closed evidence was to be given or closed documents were to be considered; why a special advocate was to be appointed to represent his interests in any part of the proceedings from which he and his representatives were to be excluded; and why the proceedings should be held entirely in private.
+As a means of explaining these matters to Mr Tariq, the reasons given were, to say the least, not informative.
+Para 10 encapsulated them.
+It stated: Having read the relevant documents and having heard submissions, I was satisfied that it was expedient in the interest of national security to make an order under rule 54 as set out in the separate document marked as Orders.
+I was further satisfied that it would be in the interest of the claimant if a special advocate were to be appointed for the matter to be further reviewed, as I am required to do, at the next case management discussion on 1 May 2008 when not only can the issues as to what documents should be in the closed and open bundles and what should be included in the closed and open witness statements be addressed but also any submissions from the special advocate in that regard at that case management discussion in the anticipation that there would have been such an appointment before then.
+Beyond saying that the decisions as to the way in which his case was to be heard had been taken for reasons of national security, this paragraph conveyed precisely nothing to the claimant.
+The paragraphs that had preceded it did little more.
+Apart from rehearsing the submissions that had been made by either party, they said virtually nothing.
+But that did not make them immune from the ministers blue pen.
+In para 5 of the reasons the tribunal had set out (in 5.1, 5.2 and 5.3) the Home Office submissions that the entire proceedings should be held in private; that Mr Tariq and his representative should be excluded while closed evidence or documents were being considered; and that the tribunal should consider both the closed evidence and closed documents and that these would be provided to a special advocate, if one was appointed.
+In its original form, the statement of reasons continued at para 6: The respondents made this application on the basis that given the circumstances and the relationship of the claimant to other parties involved in what was believed to be unlawful activities and the fact that he might have contact with them that there could be inadvertent disclosure by him of information that was either sensitive or classified.
+Now it should be noted that on 30 August 2006, the departmental security officer, Jacqueline Sharland, had met Mr Tariq and his union representative and she had then explained that the review of Mr Tariq's security clearance had been prompted by national security concerns and that these related to Mr Tariq's vulnerability.
+At that meeting Mr Tariq indicated that he understood that the withdrawal of his security clearance had occurred because his brother had been arrested.
+There was no demur from Ms Sharland to this suggestion.
+Despite this, in October 2008, more than two years later, the minister (or a civil servant acting on his behalf) felt that para 6 of the tribunals reasons required amendment.
+He directed that it should be changed so as to read as follows: The respondents made the applications at paras 5.1 5.3 above, on the basis that the material in the closed bundle provided to the tribunal was sensitive on grounds of national security and accordingly should not be disclosed to the claimant or his representative.
+So, although Mr Tariq had been informed by the departmental security officer that his security clearance had been reviewed because he was considered to be vulnerable, and although he had responded that he believed that that had happened because his brother had been arrested, the Home Office view was that it was necessary on national security grounds that he should not be told in October 2008 that others who were believed to be involved in unlawful activities might receive sensitive or classified information that he might inadvertently impart to them.
+It has never been explained why the view was taken that this information could not be disclosed.
+Mystifying though this is, the second change to the statement of reasons directed by the minister is even more inexplicable.
+This required the complete deletion of para 8 of the reasons.
+This paragraph had done no more than summarise an argument made on the respondents behalf in the presence of Mr Tariqs representative, an argument of which, therefore, it must be assumed, he was fully aware.
+It had stated: The respondents further maintained that due to the nature of the contact and the place of contact (the claimant's parents home at which he partially resided with his family during most week ends), it was inappropriate for all these matters to be disclosed on a public basis and that there were matters properly to be dealt with on a closed basis and for the hearing generally to be in private.
+Again no explanation for the decision to withhold this information has been given.
+It seems likely that its subsequent disclosure and the full revelation of what para 6 contained was brought about by representations made by the special advocate appointed to act on Mr Tariqs behalf.
+Lord Mance has said that this is an indication of one of the purposes that a special advocate may serve.
+It may very well amount to such an indication but the fact that the intervention of the special advocate was required to secure the release of material which ought never to have been withheld is, in my opinion, profoundly troubling.
+Lord Mance has suggested that the course of events about the disclosure of this information offers a cautionary message.
+It does more than that.
+It illustrates all too clearly the dangers inherent in a closed material procedure where the party which asks for it is also the repository of information on the impact that an open system will avowedly have on national security.
+The common law right to know and effectively challenge the opposing case
+The right to know and effectively challenge the opposing case has long been recognised by the common law as a fundamental feature of the judicial process.
+In Kanda v Government of Malaya [1962] AC 322, 337 Lord Denning said: If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him.
+He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them.
+This appears in all the cases from the celebrated judgment of Lord Loreburn LC in Board of Education v Rice down to the decision of their Lordships Board in Ceylon University v Fernando.
+It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side made behind the back of the other.
+The centrality of this right to the fairness of the trial process has been repeatedly emphasised.
+Thus, in In re K (Infants) [1963] Ch 381 Upjohn LJ at pp 405 406 said: It seems to be fundamental to any judicial inquiry that a person or other properly interested party must have the right to see all the information put before the judge, to comment on it, to challenge it and if needs be to combat it, and to try to establish by contrary evidence that it is wrong.
+It cannot be withheld from him in whole or in part.
+If it is so withheld and yet the judge takes such information into account in reaching his conclusion without disclosure to those parties who are properly and naturally vitally concerned, the proceedings cannot be described as judicial.
+And in Brinkley v Brinkley [1965] P 75, 78 Scarman J said that for a court to take into consideration evidence which a party to the proceedings has had no opportunity during trial to see or hear, and thus to challenge, explain or comment upon, seems to us to strike at the very root of the judicial process.
+In Pamplin v Express Newspapers Ltd [1985] 1 WLR 689 at 691 Hobhouse J expressed the principle in similarly forthright terms: The first principle is the principle of natural justice which applies wherever legal proceedings involve more than one person and one party is asking the tribunal for an order which will affect and bind another.
+Natural justice requires that each party should have an equivalent right to be heard.
+This means that if one party wishes to place evidence or persuasive material before the tribunal, the other party or parties must have an opportunity to see that material and, if they wish, to submit counter material and, in any event, to address the tribunal about the material.
+One party may not make secret communications to the court.
+Exceptions to the rule that a party to the proceedings must be informed of every detail of his opponents case have, of course, been recognised.
+But it is essential to be aware of the starting point from which one must embark on the inquiry whether the principle of equality of arms (which is such a vital hallmark of our adversarial system of the trial of contentious issues) may be compromised.
+As a general indeed, basic rule, those who are parties to litigation need to know what it is that their opponent alleges against them.
+They need to have the chance to counter those allegations.
+If that vital entitlement is to be denied them, weighty factors must be present to displace it.
+And it is self evident that he who wishes to have it displaced must show that there are sufficiently substantial reasons that this should happen.
+Put shortly, he who thus avers must establish that nothing less will do.
+The case made on behalf of the appellant in this appeal has been stigmatised by the suggestion that it amounts to a claim that the state must accept that it should pay compensation even in those instances where the claimant is known to be wholly undeserving but it is impossible to adduce evidence that would establish this because of national security considerations.
+The respondent claimed and the majority have accepted that the law will not contemplate such a situation.
+In my view, however, this approach carries the danger of allowing the possible consequences of the implementation of the proper principle to effect a modification of the principle itself.
+So, because, it is said, the state, faced with the dilemma of having to choose between revealing the information on which it relies to defeat the claim and compromising national security by doing so, would be forced to settle the case, a better solution must be found.
+That better solution is that the state should be allowed to deploy the information on which the claim can be defeated but be absolved from the need to disclose it to the claimant.
+This solution, it is clear, is founded not on principle but on pragmatism.
+Pragmatic considerations, of course, have their part to play in the resolution of difficult legal conundrums but, I suggest, they have no place here.
+Where, as in this case, the challenged decision is the subject of factual inquiry or dispute and the investigation of the disputed facts centres on an individuals actions or, to bring the matter directly to the circumstances of this case, his supposed vulnerability, that individual is the critical source of information needed to discover the truth; in many cases he may be the only source.
+If he is denied information as to the nature of the case made either directly against him or, as seems more likely here, against others whose presumed relationship with the claimant renders it unsuitable for him to retain security clearance and if he is thereby forced to speculate on the content of the defendants case, no truly adversarial proceedings are possible.
+As Upjohn LJ put it in In re K, the proceedings are not judicial.
+The withholding of information from a claimant which is then deployed to defeat his claim is, in my opinion, a breach of his fundamental common law right to a fair trial.
+Even if the closed material procedure was compatible with article 6 of the European Convention on Human Rights (and for reasons that I will discuss presently, I do not believe that it is) this has no bearing on the appellants right at common law to be provided with details of the case against him sufficient to enable him to present a reasoned challenge to it.
+This courts endorsement of a principle of non disclosure whereby a party in civil proceedings may have withheld from him the allegations forming the basis of the opposing case is a landmark decision, marking a departure from the common laws long established commitment to this basic procedural right.
+In my view, the removal of that right may only be achieved by legislation and only then by unambiguous language that clearly has that effect.
+In R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, dealing with Parliaments power to legislate contrary to fundamental human rights, Lord Hoffmann at p 131 said: Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights.
+The Human Rights Act 1998 will not detract from this power.
+The constraints upon its exercise by Parliament are ultimately political, not legal.
+But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost.
+Fundamental rights cannot be overridden by general or ambiguous words.
+This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process.
+In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.
+In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.
+Although that statement of principle was made in the context of legislation overriding human rights, it applies with equal force to legislation affecting other constitutional rights such as arise in this case.
+In R (Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36, [2004] 1 AC 604, at para 27 Lord Steyn said of Lord Hoffmanns dictum, this principle may find its primary application in respect of cases under the European Convention on Human Rights.
+But the Convention is not an exhaustive statement of fundamental rights under our system of law.
+Lord Hoffmann's dictum applies to fundamental rights beyond the four corners of the Convention.
+In my view it is engaged in the present case.
+And it therefore seems to me remarkable that a modification of such a fundamental right can be achieved without the unambiguous legislative provision that would be required to alter a right arising under the Convention.
+To recognise that this right continues to exist at common law does not mean that every time the state wishes to withhold information from a claimant which, although vital to the defence of the claim, cannot be revealed for reasons of national security, it must submit to settlement of the claim.
+As the experience in Carnduff v Rock [2001] EWCA Civ 680, [2001] 1 WLR 1786 illustrates, it is perfectly proper and, more importantly, principled to find in such cases that they cannot be regarded as justiciable because no just trial is possible.
+Where insistence upon a fully fair hearing for a claimant will deny the defendant (or where it is not a party, the state) the protection of its vital interests that the law should recognise, then a truly fair proceeding is not possible and the trial should be halted in limine.
+Lord Mance has said that this is not an option that the law should readily contemplate.
+I agree but it seems to me to be a plainly more palatable course than to permit a proceeding in which one party knows nothing of the case made against him and which, by definition, cannot be subject to properly informed challenge.
+At least in the Carnduff situation both parties are excluded from the judgment seat.
+In the state of affairs that will result from the decision of the majority in this case, one party has exclusive access to that seat and the system of justice cannot fail to be tainted in consequence.
+Article 6
+Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms provides: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
+Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
+It is well established that the overriding right guaranteed by article 6(1), the right to a fair trial, is absolute see Montgomery v HM Advocate [2003] 1 AC 641, 673, Brown v Stott [2003] 1 AC 681, 719 and Dyer v Watson [2002] UKPC D1, [2004] 1 AC 379 at para 73.
+But the constituent rights comprised, whether expressly or implicitly, within article 6 are not themselves absolute: Brown v Stott at 704 per Lord Steyn.
+One of the implicit constituent rights of article 6 is that there should be equality of arms between the parties to proceedings.
+Of this constituent right, Lord Bingham said in Brown v Stott at 695 that it lay at the heart of the right to a fair trial.
+Equality of arms is the means by which a fair adversarial contest may take place.
+It requires that there must be an opportunity for all parties to be aware of and to comment on all the evidence adduced or observations submitted, with a view to influencing the courts decision Vanjak v Croatia (Application No 29889/04) (unreported) 14 January 2010, at para 52.
+Although, as a constituent element of article 6, equality of arms is not an absolute right, restrictions may only be placed upon it where it is strictly necessary and proportionate do so.
+A strong countervailing public interest is required to satisfy this requirement.
+Moreover, the restriction must be sufficiently counterbalanced by appropriate procedures allowed by the judicial authorities.
+And the restrictions must not be such as effectively to extinguish the very essence of the right.
+These propositions derive from a series of decisions of the European Court of Human Rights (ECtHR) which constitute a clear and constant line of authority emanating from Strasbourg.
+One may begin with Tinnelly & Sons Ltd v United Kingdom (1998) 27 EHRR 249.
+At para 72 the court said: 72.
+The Court recalls that article 6(1) embodies the right to a court, of which the right of access, that is the right to institute proceedings before a court in civil matters, constitutes one aspect.
+In this respect, the contracting states enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention's requirements rests with the Court.
+It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired.
+Furthermore, a limitation will not be compatible with article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.
+So the very essence of the right must not be impaired and the restriction on the constituent right must be proportionate.
+In Rowe and Davis v United Kingdom (2000) 30 EHRR 1 at para 61 the court said: . as the applicants recognised, the entitlement to disclosure of relevant evidence is not an absolute right.
+In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused.
+In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest.
+However, only such measures restricting the rights of the defence which are strictly necessary are permissible under article 6(1).
+Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities.
+A precisely similar formula was employed by the court in para 52 of its judgment in Jasper v United Kingdom (2000) 30 EHRR 441 and in para 52 of Pocius v Lithuania (Application No 35601/04) (unreported) 6 July 2010.
+Significantly, it was also used by the court at para 184 of its judgment in Kennedy v United Kingdom (Application No 26839/05) (unreported) 18 May 2010 where it was confirmed that these principles apply with equal force to civil proceedings.
+From these statements it is clear that the balancing exercise between, on the one hand, full access to all the elements of the equality of arms principle and, on the other, the withholding of evidence on the grounds of national security, must be conducted on the basis that only such restriction on full access to relevant material as is absolutely required can be countenanced.
+And even if that hurdle is surmounted, it must be shown that the limitation on the rights of the party who is denied such access is adequately offset by sufficient counterbalancing measures.
+It seems to me that measures can only be regarded as sufficient if they either wholly eliminate the disadvantage that would otherwise have accrued or if they diminish the difficulties deriving from the non disclosure of the relevant material to a condition of insignificance.
+Thus as the interveners, Justice and Liberty, have put it, restrictions on untrammelled access to relevant material can only be justified in a justiciable case where sufficient information about the substantive case which a party has to meet is disclosed so that he may effectively challenge it.
+Otherwise, the limitation on the right to equality of arms can in no sense be regarded as having been sufficiently counterbalanced.
+A function of the counterbalancing measures is to ensure that the very essence of the right is not impaired.
+It is, I believe, important to have a clear understanding of what is meant by the essence of the right.
+If equality of arms lies at the heart of a fair trial, the essence of the right must surely include the requirement that sufficient information about the case which is to be made against him be given to a party so that he can give meaningful instructions to answer that case.
+In Secretary of State for the Home Department v MB [2007] UKHL 46, [2008] AC 440, a case involving a challenge to a non derogating control order, Lord Bingham referred to the general acceptance by the House of Lords in R (Roberts) v Parole Board [2005] UKHL 45, [2005] 2 AC 738 that there was a core, irreducible, minimum entitlement for the appellant, as a life sentence prisoner, to be able effectively to test and challenge any evidence which decisively bore on the legality of his detention.
+That irreducible minimum entitlement also applied in the case of a control order: see para 43 of MB.
+The opportunity to know and effectively test the case against him (the core irreducible minimum entitlement) surely captures the essence of the right.
+And it seems to me that the essence of the right cannot change according to the context in which it arises.
+Whether a hearing should be conducted in private or in open session; whether information about the case against an individual should be provided by way of full disclosure or by redacted statements or in the form of a summary or gist; whether witnesses should be anonymised all of these are variables to which recourse may be had in order to reflect the context in which the requirements of article 6 must be examined.
+But if the essence of the right is to be regarded (as I believe it must be) as the indispensable and necessary attributes of the right as opposed to those which it may or may not have, its essence cannot alter according to the circumstances in which it falls to be considered.
+Para 217 of the European Court of Human Rights judgment in A v United Kingdom (2009) 49 EHRR 625 has been cited by Lord Mance as an example of the emphasis given by the court to the context in which the requirements of the right were being considered.
+That case involved a challenge to the decision of the Home Secretary to certify that each of the applicants should be detained because he reasonably believed that their presence in the United Kingdom posed a threat to national security.
+As it seems to me the only relevant part of para 217 is contained in the following passage: In view of the dramatic impact of the lengthy and what appeared at that time to be indefinite deprivation of liberty on the applicants fundamental rights, article 5(4) must import substantially the same
+fair trial guarantees as article 6(1) in its criminal aspect
+This says nothing about the essence of the right to equality of arms.
+It merely (but unsurprisingly) confirms that if ones liberty is to be deprived on foot of the order of the Secretary of State, the same guarantees as are available to defendants in a criminal trial should be extended to those who were the subject of detention orders.
+Lord Mance also expressed agreement with the decision of the Court of Appeal in R(AHK) v Secretary of State for the Home Department (Practice Note) [2009] EWCA Civ 287; [2009] 1 WLR 2049 where, according to Lord Mances analysis, it was held that a claim for judicial review of the refusal of an application for British citizenship could be distinguished from the requirements prescribed by A v United Kingdom on the ground that the latter cases focus was on detention.
+I do not agree that the AHK case distinguished A v United Kingdom or, at least, that it suggested (contra the decision in A v UK), that abrogation of the right of a claimant to know the essential elements of the case to be made against him was permissible.
+The AHK case was principally concerned with the question whether a special advocate should be appointed.
+In the list of principles to be applied in cases where the Secretary of State has decided that the reasons for refusing British citizenship could not be fully disclosed Sir Anthony Clarke MR at para 37 (iv) (d) said: All depends upon the circumstances of the particular case, but it is important to have in mind the importance of the decision from the claimant's point of view, the difficulties facing the claimant in effectively challenging the case against him in open court and whether the assistance of a special advocate will or might assist the claimant in meeting the Secretary of State's case and the court in arriving at a fair conclusion.
+Underlying this statement is the acknowledgment that the claimant must be assisted in meeting the Secretary of States case.
+There is no reason to suppose that the Court of Appeal would have endorsed a procedure where the claimant was effectively prevented from knowing and meeting the essential case made against him.
+At a theoretical level it is possible that advocates retained to consider material that cannot be disclosed to a claimant can supply the vital ingredient of ensuring that the case made against the claimant is effectively met.
+In such circumstances the essence of the article 6 right is not lost.
+But AHK is not authority for the proposition that where that indispensable requirement cannot be fulfilled and the claimant is prevented from presenting a fully informed opposition to the case made against him, no violation of article 6 arises because the consequences for the claimant are less serious than the deprivation of his liberty.
+It is, I believe, crucial to a proper understanding of ECtHR jurisprudence in this area that the essence of the right under article 6 is that a party is entitled to know and effectively challenge the case made against him.
+Equality of arms, or a properly set adversarial contest, requires that both parties have equal, or at least a sufficient, access to the material that will be deployed against them.
+The adversarial contest sets the context and the adversarial contest arises in relation to article 6 rights as opposed to other Convention rights.
+Thus cases such as Leander v Sweden (1987) 9 EHRR 433 (which was concerned with alleged violations of articles 8, 10 and 13) and Esbester v United Kingdom (1998) 18 EHRR CD72 (which dealt with claims under article 8 and 13) are of little assistance in determining the requirements of the equality of arms principle under article 6.
+Equality of arms did not arise in these cases.
+No adversarial contest was engaged.
+Whether it is legitimate to withhold information in an article 8 or an article 10 context has nothing to do with the propriety of its non disclosure where parties are seeking a resolution of competing cases from a properly informed and impartial tribunal.
+Articles 8 and 10 are qualified rights.
+Interference with those rights may be justified on grounds specified in the articles.
+By contrast, article 6 is not subject to exemption from the effect of interference.
+Kennedy v United Kingdom involved complaints made by the applicant to the Investigatory Powers Tribunal (IPT) that his communications were being intercepted.
+The applicant had sought specific directions regarding the conduct of the proceedings in order to ensure the protection of his Convention rights under article 6 (1).
+In particular, he asked that his arguments and evidence be presented at an oral hearing; that all hearings be conducted in public; that there be mutual disclosure and inspection between the parties of all witness statements and evidence upon which parties sought to rely and exchange of skeleton arguments in relation to planned legal submissions; that evidence of each party be heard in the presence of the other party or their legal representatives, with oral evidence being open to cross examination by the other party; that any opinion received from a commissioner be disclosed to the parties; and that, following its final determination, the IPT state its findings and give reasons for its conclusions on each relevant issue.
+IPT had held that the applicants proceedings before that tribunal engaged article 6.
+That finding was somewhat diffidently contested before ECtHR, the government contending that there was no civil right involved.
+It was not contended, as it might well have been, that article 6, according to the courts constant jurisprudence, did not apply to cases of surveillance.
+ECtHR proceeded on the assumption that article 6 did apply.
+It is significant that the courts judgment is largely preoccupied with a consideration of the various specific claims made by the applicant about how the proceedings should be conducted.
+The question of providing him with sufficient information in the form of a gist or summary to meet the case against him did not feature in the list of those claims.
+The question of supplying redacted documents is discussed, however, and the courts decision seems largely to have been influenced by the argument advanced on behalf of the government that it was simply not possible to produce the information that the applicant sought because national security would inevitably be compromised.
+That stance is entirely consistent with the view that surveillance cases do not engage article 6.
+It is surprising that more was not made of this by the government and that the court did not address the issue directly.
+If it had done and if it had followed its own constant jurisprudence, the anomaly, which I believe the decision in Kennedy represents, would have been avoided.
+In Klass v Federal Republic of Germany (1978) 2 EHRR 214 at para 75 ECtHR said this about secret surveillance: As long as it remains validly secret, the decision placing someone under surveillance is thereby incapable of judicial control on the initiative of the person concerned, within the meaning of article 6; as a consequence, it of necessity escapes the requirements of that article.
+The logic of this position is inescapable.
+The entire point of surveillance is that the person who is subject to it should not be aware of that fact.
+It is therefore impossible to apply article 6 to any challenge to the decision to place someone under surveillance, at least until notice of termination of the surveillance has been given.
+This approach has been consistently applied by the court.
+So for instance in Rotaru v Romania (2000) 8 BHRC 449 at para 69 the court said where secret surveillance is concerned, objective supervisory machinery may be sufficient as long as the measures remain secret.
+It is only once the measures have been divulged that legal remedies must become available to the individual.
+It is precisely because the fact of surveillance must remain secret in order to be efficacious that article 6 cannot be engaged.
+It appears to me, therefore, that the decision in Kennedy ought to have been made on the basis that article 6 was not engaged because the issues that the case raised were simply not justiciable.
+That the decision is out of line with the established jurisprudence of the court is perhaps best exemplified by contrasting it with the approach of the Grand Chamber in A v United Kingdom as applied by the House of Lords in Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269.
+At para 59 Lord Phillips said this about the ratio in A v United Kingdom: I am satisfied that the essence of the Grand Chamber's decision lies in para 220 and, in particular, in the last sentence of that paragraph.
+This establishes that the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations.
+Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations.
+Where, however, the open material consists purely of general assertions and the case against the controlee is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be.
+Whilst Lord Phillips at para 65 implied that the Grand Chambers decision (that non disclosure cannot deny a party knowledge of the essence of the case against him) might apply only where the consequences for an individual were as severe as those normally imposed under a control order, there are indications in his and other speeches that the principle is of general application.
+In particular, Lord Phillips rejected the suggestion that there should be a different standard where the control order did not amount to detention para 63 and at para 64 he said this: The best way of producing a fair trial is to ensure that a party to it has the fullest information of both the allegations that are made against him and the evidence relied upon in support of those allegations.
+Where the evidence is documentary, he should have access to the documents.
+Where the evidence consists of oral testimony, then he should be entitled to cross examine the witnesses who give that testimony, whose identities should be disclosed.
+Both our criminal and our civil procedures set out to achieve these aims.
+In some circumstances, however, they run into conflict with other aspects of the public interest, and this is particularly the case where national security is involved.
+How that conflict is to be resolved is a matter for Parliament and for government, subject to the law laid down by Parliament.
+That law now includes the Convention, as applied by the HRA.
+That Act requires the courts to act compatibly with Convention rights, in so far as Parliament permits, and to take into account the Strasbourg jurisprudence.
+That is why the clear terms of the judgment in A v United Kingdom resolve the issue raised in these appeals.
+The views of Lord Hope were equally clear and comprehensive.
+At para 83 he said: The approach which the Grand Chamber has adopted is not, as it seems to me, at all surprising.
+The principle that the accused has a right to know what is being alleged against him has a long pedigree.
+As Lord Scott of Foscote observed in A v Secretary of State for the Home Department [2005] 2 AC 68, para 155, a denunciation on grounds that are not disclosed is the stuff of nightmares.
+The rule of law in a democratic society does not tolerate such behaviour.
+The fundamental principle is that everyone is entitled to the disclosure of sufficient material to enable him to answer effectively the case that is made against him.
+Lady Hale in para 103 said that Strasbourg had now made it entirely clear what the test of a fair hearing is.
+The test was whether the controlled person had had the possibility to challenge effectively the allegations made against him.
+He had to have sufficient information about those allegations to be able to give effective instructions to his special advocate.
+If the majority in this appeal are right, however, the test of a fair hearing in Mr Tariqs case is different.
+He need not be given sufficient information about the allegations against him to challenge them effectively or to give effective instructions to his special advocate.
+For my part I cannot understand why this should be so.
+The result of the decision of the majority is to create a different class of case from that where what Lord Brown has helpfully described as A type disclosure must be given.
+The eligibility criteria for inclusion in this privileged group are not clear.
+Certainly, the class is not confined to those whose liberty is at stake, as the speeches in AF (No 3) make clear.
+And, presumably, it must also include freezing order cases Kadi v Council of the European Union Joined Cases C 402/05 P and C 415/05 P [2009] AC 1225, as applied by the European General Court in Kadi II Case T 85/09 [2011] 1 CMLR 697.
+If A type disclosure is required in challenges to freezing orders, does it extend to property rights more generally? If it does, why should property rights be distinguished from loss of employment cases? After all, loss of livelihood may be just as devastating as having ones assets frozen.
+It seems to me that there is no principled basis on which to draw a distinction between the essence of the right to a fair trial based on the nature of the claim that is made.
+A fair trial in any context demands that certain indispensable features are present to enable a true adversarial contest to take place.
+That conclusion is reflected in the later decision of ECtHR of Uukauskas v Lithuania (Application No 16965/04) (unreported) 6 July 2010.
+Lord Mance has sought to distinguish this case on the basis that the procedure adopted was contrary to national law.
+But that consideration was in no sense central to the courts reasoning.
+On the contrary, the observation (at para 48) that Lithuanian law and judicial practice provide that such information may not be used as evidence in court against a person unless it has been declassified, and that it may not be the only evidence on which a court bases its decision was made in order to draw a contrast with the view that documents which constitute state secrets may only be disclosed to persons who possess the appropriate authorisation.
+It is quite clear that the violation of article 6 which the court held to have occurred was based on conventional ECtHR principles.
+This much is evident from para 51 where the court said; In conclusion, therefore, the Court finds that the decision making procedure did not comply with the requirements of adversarial proceedings or equality of arms, and did not incorporate adequate safeguards to protect the interests of the applicant.
+It follows that there has been a violation of article 6(1) in the present case.
+The unavoidable result from this case is that Strasbourg has again made it entirely clear what the test for a fair hearing is where someone seeks to challenge a decision that he should be removed from a firearms register.
+He is entitled to know the reasons that this has happened in order to be able to effectively challenge them.
+If that is so, why should someone who has been dismissed from his employment be in a less advantageous position?
+Conclusions
+I have concluded that the Court of Appeal was correct in finding that where article 6 is engaged, it is necessary for a party to proceedings to be provided with sufficient information about the allegations against him to allow him to give effective instructions to his legal representatives and, if one has been appointed, the special advocate so that those allegations can be effectively challenged.
+I would therefore dismiss the appeal by the Home Office.
+For the reasons given by Lord Mance, with which I agree, I would hold that the closed material procedure provided for in the Employment Tribunal legislative scheme is not in principle incompatible with article 6 and EU law.
+I would therefore also dismiss the cross appeal.
+LORD DYSON
+I agree that for the reasons given by Lord Mance the Court of Appeal was correct to hold that the closed material procedure provided for in the Employment Tribunal legislative scheme, including its provision for the appointment of special advocates is in principle compatible with article 6 of the European Convention on Human Rights (ECHR) and EU law.
+I also agree that the Court of Appeal was wrong to find that, in all cases in which article 6 (civil) is engaged, it is necessary for an individual to be provided with sufficient information about the allegations against him (the gist) to enable him to give effective instructions to his legal representatives and the special advocate (where one has been appointed) in relation to those allegations.
+It is on this second question that I wish to add some words of my own.
+General observations about closed procedures
+The article 6 right to a fair trial is absolute: see, for example, per Lord Hope in Dyer v Watson [2002] UKPC D1 [2004] 1 AC 379 at para 73.
+In principle, a fair trial presupposes adversarial proceedings and equality of arms.
+Thus, for example, in Vanjak v Croatia (Application No 29889/04) (unreported) 14 January 2010, at para 52, the European Court of Human Rights said: . . independently of whether the case is a civil, criminal or disciplinary one, the right to adversarial proceedings has to be complied with.
+That right means in principle the opportunity for the parties to court proceedings falling within the scope of article 6 to have knowledge of and comment on all evidence adduced or observations submitted, with a view to influencing the courts decision.
+But the constituent elements of a fair process are not absolute or fixed: see Brown v Stott [2003] 1 AC 681 at 693D E per Lord Bingham; 719G H per Lord Hope; and 727H per Lord Clyde.
+This was re affirmed by the ECtHR in relation to article 5(4) in A v United Kingdom (2009) 49 EHRR 625 at para 203: The requirement of procedural fairness under article 5(4) does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances.
+Moreover, it has been recognised by the ECtHR that there are circumstances where a limitation on what would otherwise be a general rule of fairness is permissible.
+Thus in Rowe and Davis v United Kingdom (2000) 30 EHRR 1, at para 61, the European Court of Human Rights said: the entitlement to disclosure of relevant evidence is not an absolute right.
+In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused.
+In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest.
+However, only such measures restricting the rights of the defence which are strictly necessary are permissible under article 6(1).
+Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights may be sufficiently counterbalanced by the procedures followed by the judicial authorities.
+Prima facie, a closed material procedure denies the party who is refused access to the closed material the right to full and informed participation in adversarial proceedings and to that extent is inconsistent with the principle of equality of arms.
+There are two factors which the Secretary of State says are sufficient to counterbalance the effects of the closed material procedure in the present case.
+The first is that there is scrutiny by an independent court (the Employment Tribunal) fully appraised of all relevant material and experienced in dealing with discrimination cases.
+The second is the testing by a special advocate of the Home Offices case in closed session.
+But are these factors sufficient in circumstances where the gist of the Home Office case is not disclosed to the claimant? How can the special advocate represent the claimants interests if the claimant is unable to give full instructions to him? The answer to these questions in the context of proceedings involving the liberty of the subject is clear.
+If the special advocate is unable to perform his function in any useful way unless the detainee is provided with sufficient information about the allegations to enable him to give effective instructions to the special advocate, then there must be disclosure to the detainee of the gist of that information: see A v United Kingdom at para 220 and, in the context of control orders, Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269.
+In such a case, there must be disclosure, regardless of how important the competing national interest may be in favour of withholding the information.
+The consequence of this will inevitably be that in some cases the prosecuting or detaining authorities will be faced with the invidious choice of disclosing sensitive information or risking losing the case.
+But what is the position in cases which do not involve the liberty of the subject? For the reasons given by Lord Mance and Lord Brown, I agree that neither A v United Kingdom nor AF (No3) decides this question.
+Mr Allen QC and Mr Howell QC submit that the reasoning in A v United Kingdom is not limited to cases involving the liberty of the subject and should be applied to civil claims too.
+They submit that, properly understood, the Strasbourg jurisprudence does not support the proposition that a different approach may be adopted to the problem in civil claims.
+They also say that to distinguish between the requirements of article 6 on the basis of a classification of the type of case involved is unprincipled and will give rise to uncertainty and confusion.
+But it is clear from para 203 of A v United Kingdom itself that article 6 does not require a uniform approach to be adopted in all classes of case.
+In Kennedy v United Kingdom (Application No 26839) (unreported) 18 May 2010, the European Court of Human Rights said that the entitlement to disclosure of relevant evidence is not an absolute right (para 187); the character of the proceedings may justify dispensing with an oral hearing (para 188); and the extent to which the duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (para 189).
+I therefore agree with what Sir Anthony Clarke MR said when giving the judgment of the court in R(AHK) v Secretary of State for the Home Department (Practice Note) [2009] EWCA Civ 287, [2009] 1 WLR 2049 at para 45: The above analysis shows that the European Court of Human Rights considers each class of case separately.
+The issues in this class of case are a far cry from the issues that arise in the criminal cases discussed by the court in A v United Kingdom 19 February 2009.
+Moreover, without in any way minimising the effect of being refused British citizenship, the consequences of a deprivation of (or even interference with) liberty are plainly very much more serious.
+In these circumstances we do not think that the approach of the court in criminal cases or in cases of deprivation or interference with liberty can or should be applied directly to this class of case.
+That is not to say that, as explained earlier, each individual is not entitled to a fair hearing of his application for judicial review.
+Nevertheless, I would accept that the general rule is that an applicant should enjoy the full panoply of article 6 rights, including full disclosure of all relevant material and that any limitation on the ordinary incidents of article 6 requires careful justification.
+In deciding how to strike the balance between the rights of the individual and other competing interests, the court must consider whether scrutiny by an independent court and the use of special advocates are sufficient to counterbalance the limitations on the individuals article 6 rights.
+In many cases, an individuals case can be effectively prosecuted without his knowing the sensitive information which public interest considerations make it impossible to disclose to him.
+For example, in a discrimination claim such as that of Mr Tariq, the central issue may well not be whether the underlying security concerns are well founded, but rather whether the decision making process was infected by discrimination.
+As Mr Eadie QC points out, Mr Tariqs appeal is not against the assessments or conclusions of the Home Office as to the withdrawal of his security clearance.
+SVAP provides the expert forum for considering such issues.
+It was not for the Employment Tribunal to determine whether, for example, it believed or did not believe Mr Tariqs assertions about the nature of his relationships with persons involved in or associated with terrorist activities.
+Thus in the conduct of a discrimination claim, the special advocate and indeed the judge can to a considerable extent test the case of the alleged discriminator without the input of the claimant.
+The surveillance/security vetting cases
+Lord Mance has referred at para 68 to what he describes as the clear line of jurisprudence culminating in the Courts decision in Kennedy which demonstrates that, in civil cases, it is not necessary to provide the gist of information which the interests of national security require to be kept secret.
+I think that it is necessary to examine the authorities with some care to see precisely what these cases do establish.
+In the absence of special circumstances, our courts should follow any clear and constant jurisprudence of the European Court of Human Rights: see R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295 at para 26.
+The first case to note is Klass v Federal Republic of Germany (1978) 2 EHRR 214.
+This involved a challenge to legislation which permitted the authorities to open and inspect mail and listen to telephone conversations in order to protect, inter alia, against imminent dangers threatening the existence or the security of the state.
+The challenge was based on an alleged breach of articles 6, 8 and 13 of the European Convention on Human Rights.
+At para 75, the European Court of Human Rights said : As long as it remains validly secret, the decision placing someone under surveillance is thereby incapable of judicial control on the initiative of the person concerned, within the meaning of article 6; as a consequence, it of necessity escapes the requirements of that article.
+The cases of Leander v Sweden (1987) 9 EHRR 433 and Esbester v United Kingdom (1993) 18 EHRR CD72 are discussed by Lord Mance at paras 28 to 32 above.
+They can be considered together, although at first sight it may seem odd to refer to them at all since they are not article 6 cases.
+The claim in Leander was brought under articles 8, 10 and 13 and in Esbester under articles 8 and 13.
+I accept that what may be a proportionate and justified interference with a persons rights under article 8 may not correspond precisely with what may be a strictly necessary and sufficiently counterbalanced invasion of his right to a fair trial under article 6.
+Moreover, it is right to point out that Leander and Esbester were referred to by the European Court of Human Rights in Kennedy, but only in its discussion of the claims under articles 8 and 13: see paras 122, 152, 195 and 197.
+The section in Kennedy which deals with article 6 does not refer to either of these authorities.
+Mr Eadie accepts that Leander and Esbester did not concern article 6.
+He relies on them as being directly analogous to the present case, relating to security vetting in an employment context.
+Issues of fairness were central to the issues arising under articles 8 and 10 and the right to an effective remedy under article 13.
+The European Court of Human Rights found that the vetting systems in those cases were compatible with article 8 and upheld the right of the state not to disclose the reasons for the rejection of the applicants application for employment as a result of a security vetting process.
+Whereas Klass is a case where it seems to have been held that article 6 did not apply at all and Leander and Esbester are not article 6 cases, there can be no doubt that Kennedy is an article 6 case.
+In Kennedy (which was decided after the decision of the Court of Appeal in the present case), the applicant complained about an alleged interception of his communications, claiming that it was a violation of his article 8 rights.
+He also complained that the hearing before the Investigatory Powers Tribunal (IPT) was not attended by adequate safeguards as required under article 6 and that, as a result, he had been denied an effective remedy under article 13.
+Lord Mance has set out the relevant passages of the judgment at paras 34 and 35 above.
+The submissions of the parties summarised at paras 180 to 183 of the judgment were directed to the question of what article 6 required.
+It is of note that the Government submitted that the scope of the article 6 guarantees in that case should be in harmony with the Courts approach to judicial control under article 8.
+The courts assessment at paras 184 to 191 was explicitly on the basis of the application of article 6.
+In contrast with para 75 of Klass, the court did not say that the case escapes the requirements of [article 6].
+Thus at para 186, the court emphasised that the proceedings related to secret surveillance measures and that there was therefore a need to keep secret sensitive and confidential information.
+The court continued: this consideration justifies restrictions in the IPT proceedings.
+The question is whether the restrictions, taken as a whole, were disproportionate or impaired the very essence of the applicants right to a fair trial.
+This is the classic approach to article 6.
+The courts conclusion at para 190 was that the restrictions on the procedure before the IPT did not violate the applicants right to a fair trial.
+In reaching this conclusion, the court took into account the breadth of access to the IPT (an independent court) enjoyed by those complaining about interception and the absence of any evidential burden to be overcome in order to lodge an application with the IPT.
+It concluded: In order to ensure the efficacy of the secret surveillance regime, and bearing in mind the importance of such measures to the fight against terrorism and serious crime, the Court considers that the restrictions on the applicants rights in the context of the proceedings before the IPT were both necessary and proportionate and did not impair the very essence of the applicants article 6 rights.
+Mr Allen and Mr Howell submit that Kennedy should be understood as a decision that, so long as the very subject matter of the dispute must justifiably remain secret, is effectively non justiciable and the substantive protections that article 6 contains cannot be applied in substance to its resolution.
+In other words, they submit that the decision in Kennedy should be analysed as an application of para 75 of Klass.
+If, however, the court had intended to adopt this approach, it would have said so.
+Instead, it clearly purported to apply article 6.
+Kennedy is a striking decision.
+But for the security issues raised in the case, it is surely inconceivable that the court would have concluded that the restrictions on the applicants rights before the IPT (a completely closed procedure without even the protection of a special advocate) were necessary and proportionate and did not impair the very essence of the applicants article 6 rights.
+The crucial reason for this conclusion was that the restrictions on the applicants rights were necessary in order to ensure the efficacy of the secret surveillance regime.
+Kennedy was a case about a secret surveillance regime by interception of his communications.
+This same language was used by the court in Klass at para 58 to justify the interference with the applicants article 8 rights in that case (another interception of communications case): the fact of not informing the individual once surveillance has ceased cannot itself be incompatible with this provision, since it is this very fact which ensures the efficacy of the interference.
+The same reasoning appears in the security vetting cases of Leander and Esbester.
+Thus, for example, at para 66 of Leander, the court said that the very fact that the information released to the military authorities was not communicated to Mr Leander cannot by itself warrant the conclusion that the interference was not necessary in a democratic society in the interests of national security, as it is the very absence of such communication which, at least partly, ensures the efficacy of the personnel control procedure.
+In support of this proposition, the court referred to para 58 of Klass.
+There is similar reasoning in the Commissions decision in Esbester.
+In my view, the significance of Kennedy is that it is a decision explicitly based on an application of article 6 which adopted the same approach as that which was taken by the court in applying articles 8 and 13 in Leander and by the Commission in Esbester.
+This provides clear support for the submission of Mr Eadie that, for the purposes of the issues that arise in the present case, there is no material difference between articles 8 and 13 on the one hand and article 6 on the other.
+I do not consider that, if the complaints in Leander and Esbester had been based on article 6, the outcome in these cases would have been different.
+The other point to emphasise is that these cases show that there is no material difference between surveillance cases (such as Klass and Kennedy) and security vetting cases (such as Leander and Esbester).
+In the former, restrictions on an individuals right to disclosure and participation in a hearing will be considered necessary and proportionate if they are required in order to ensure the efficacy of the secret surveillance regime.
+In the latter, the restrictions will be considered necessary and proportionate if they are required in order to ensure the efficacy of the personnel control procedure.
+Mr Allen and Mr Howell submit that the limited significance of Leander, Esbester and Kennedy is demonstrated by the decision of the ECtHR in Uukauskas v Lithuania (Application No 16965/04) (unreported) 6 July 2010.
+Lord Mance has set out the facts at para 37 above.
+I find this a difficult decision to interpret.
+On the one hand, the court approached the matter in conventional article 6 terms: see para 46 where it noted that (i) the entitlement to disclosure of relevant evidence is not an absolute right; (ii) it may be necessary to withhold certain evidence to safeguard an important public interest; but (iii) only such measures restricting the rights of the defence which are strictly necessary are permissible and there must be sufficient counterbalancing.
+At para 48 the court referred to the fact that, according to Lithuanian law and judicial practice, secret information may not be used as evidence in court unless it has been declassified and it may not be the only evidence on which a court bases its decision.
+It is not clear to me to what extent the court based its conclusion that there had been a breach of article 6 on the fact that use of the secret material against the applicant (which was of decisive importance to his case) was contrary to Lithuanian law.
+But I accept that on the face of it, this is an article 6 decision which does not sit easily with the surveillance/vetting procedure cases to which I have referred.
+There is no reference to them.
+There is no weighing of the national interest in the protection of the community against crime against the general right to adversarial proceedings.
+For these reasons and because it is unclear to what extent the position under Lithuanian law influenced the decision, I agree with Lord Mance that this decision does not cast doubt on the approach adopted in the surveillance/security vetting cases.
+Unlike Lord Mance, however, I doubt whether the fact that there is no procedure under Lithuanian law for the use of a special advocate to consider closed material is of significance, since, as was pointed out by the European Court of Human Rights in Kennedy at para 187, the procedure before the IPT did not permit the use of special advocates either.
+In my judgment, these decisions show that there is a clear line of authority to support the proposition that, in surveillance and security vetting cases, an individual is not entitled to full article 6 rights if to accord him such rights would jeopardise the efficacy of the surveillance or security vetting regime itself.
+On the material shown to us, the line of authority may not be very long, but in my view it is sufficiently clear that it should be followed by our courts.
+The cases show, in particular, that there is no right to be given the gist of relevant information if and to the extent that this would jeopardise the efficacy of the surveillance or security vetting regime.
+The present case
+I have no doubt that article 6 does not require that Mr Tariq should be given the gist of information which would damage or jeopardise national security.
+First, and above all, this is a security vetting case and in such a case article 6 does not require gisting if and in so far as it would jeopardise the efficacy of the personnel control procedure.
+That is a sufficient reason for allowing the Home Office appeal.
+There is no sensible basis for distinguishing the present case from Leander and Esbester.
+In those cases (which concerned a complaint about the manner in which security vetting was conducted where the applicant was applying for a sensitive post), article 8 did not require disclosure of the security material.
+In the present case, the complaint is about the decision not to allow a person to remain in a post where security vetting was employed.
+There can be no distinction in principle between the two cases.
+A related point is that in all cases where security clearance is sought, it is because the individual has volunteered to undergo the clearance process for the purpose of doing (or continuing to do) the job that he is employed to do.
+He must be taken to know that checks will be made that may produce material that cannot be shown to him.
+As Lord Hope points out, he is a volunteer.
+I would add the following points which reinforce the Home Office case.
+First, the subject matter of the claim is a claim for damages for alleged discrimination.
+I do not wish to underestimate the importance of the right not to be subjected to discrimination.
+But on any view, discrimination is a less grave invasion of a persons rights than the deprivation of the right to liberty.
+Secondly, the issues in the present case are such that the presence of an independent court and a special advocate are likely to go a long way to making up for the fact that Mr Tariq will be unable fully to participate in the proceedings.
+As I have explained at para 147 above, there is likely to be only limited (if any) scope for Mr Tariq to be able to give instructions to the special advocate which are necessary to enable her to test the Home Office case effectively.
+Conclusion
+I would, therefore, allow the Home Offices appeal primarily on the ground that this case concerns a decision taken in the context of security vetting.
+In other classes of civil case which are outside the surveillance/security vetting context, the balance between the individuals article 6 rights and other competing interests may be struck differently.
+It is said that this gives rise to undesirable uncertainty.
+But much of the content of the European Convention on Human Rights is about striking balances.
+This is sometimes very difficult and different opinions can reasonably be held.
+As a consequence, outcomes are sometimes difficult to predict.
+This is inevitable.
+But it is not a reason for striving to devise hard and fast rules and rigid classifications.
+It is, however, at least possible to say that, in principle, article 6 requires as much disclosure as possible.
+It is very easy for the state to play the security card.
+The court should always be astute to examine critically any claim to withhold information on public interest grounds.
+For the reasons that I have given, I would allow the Home Office appeal.
+I would also dismiss the appeal of Mr Tariq for the reasons given by Lord Mance.
+LORD PHILLIPS, LADY HALE AND LORD CLARKE
+I agree that, for the reasons given by Lord Hope, Lord Brown, Lord Mance and Lord Dyson, the appeal of the Home Office should be allowed and that the cross appeal of Mr Tariq should be dismissed.
+LORD RODGER
+Lord Rodger, who died before judgment was given in this case, had indicated that he agreed with the judgments of Lord Mance and Lord Brown.
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+This appeal raises a short question of construction of shipbuilders refund guarantees given pursuant to six shipbuilding contracts (the Contracts).
+The Contracts, which were all dated 11 May 2007, were between each of the first to sixth claimants (the Buyers) and Jinse Shipbuilding Co Ltd (the Builder).
+Under the Contracts the Builder agreed to build and sell one vessel to each of the Buyers.
+The price of each vessel was US$33,300,000, payable in five equal instalments of US$6,660,000 due at specified points of time, with the final instalment payable on delivery.1 By Article X.8 of the Contracts it was a condition precedent to payment by the Buyers of the first instalment that the Builder would deliver to the Buyers refund guarantees relating to the first and subsequent instalments in a form acceptable to the Buyers financiers.
+As envisaged by Article X.8, by letter dated 22 August 2007 the respondent, Kookmin Bank (the Bank), issued six materially identical Advance Payment Bonds (the Bonds), one to each of the Buyers.
+The seventh claimant (the Assignee) is the assignee of the benefit of the Bonds.
+On 29 August 2007, the Buyers each paid the first instalment of US$6,660,000 due under the Contracts.
+On 29 September 2007, the first claimant paid the second instalment of US$6,660,000 under the contract to which it is a party.
+In 2008 the Builder experienced financial difficulties and in late January 2009 it entered into and/or became subject to a debt workout procedure under the Korean Corporate Restructuring Promotion Law 2007.
+On 25 February 2009 the Buyers wrote to the Builder notifying it that this development triggered Article XII.3 of the Contracts and demanding an immediate refund of all the instalments paid, together with interest at 7% per annum.
+The Builder refused to make any refund on the ground that Article XII.3 of the Contracts had not been triggered as alleged.
+The dispute between the Buyers and the Builder has been submitted to arbitration pursuant to Article XIV.3 of the Contracts. 1 There was subsequently a small reduction in the overall price and a corresponding reduction in the final instalment for each vessel but that is immaterial to the issues in the appeal.
+On 23 April 2009, the Buyers wrote to the Bank demanding repayment under the Bonds of the instalments paid under the Contracts.
+The Bank refused to pay.
+It did so initially on the ground that it was not obliged to pay pending resolution of the dispute between the Buyers and the Builder.
+That argument was subsequently rejected by Simon J (the Judge) and there was no appeal to the Court of Appeal against that part of his order: [2009] EWHC Civ 2624 (Comm).
+The Bank subsequently raised a separate, and logically prior, argument that, on their true construction, the Bonds did not cover refunds to which the Buyers were entitled pursuant to Article XII.3 of the Contracts.
+That argument was also rejected by the Judge, who gave summary judgment for the Assignee, but succeeded in the Court of Appeal, which gave summary judgment for the Bank against the Buyers and the Assignee.
+In the Court of Appeal Sir Simon Tuckey agreed with the Judge but the majority, comprising Thorpe and Patten LJJ, held the Banks argument to be correct: [2010] EWCA Civ 582.
+The orders of the Judge and the Court of Appeal were made on 29 October 2009 and 27 May 2010 respectively.
+The Court of Appeal refused permission to appeal.
+The Buyers appeal to this Court pursuant to permission granted by the Court.
+The issue is whether, on the true construction of paragraph 3 of the Bonds, the Buyers are entitled to payment under the Bonds in respect of refunds to which they are entitled under Article XII.3 of the Contracts.
+No one suggested that the successful parties should not have summary judgment in their favour.
+The Bonds
+I begin with the Bonds because it was common ground that all depends upon the true construction of the Bonds and that the terms and meaning of the Contracts are only relevant to the extent that they inform the true construction of the Bonds.
+The paragraphs in the letter comprising the Bonds were not numbered but both the Judge and the Court of Appeal referred to them by number for convenience of reference and I will do the same.
+As so numbered the relevant parts of each Bond were these: [1] We refer to the Contract entered into between the Builder and yourselves for the construction and delivery of the Vessel to be delivered before [31 July 2009].
+Other terms and expressions used in this Bond shall have the same meaning as in the Contract, a copy of which has been provided to us. [2] Pursuant to the terms of the Contract, you are entitled, upon your rejection of the Vessel in accordance with the terms of the Contract, your termination, cancellation or rescission of the Contract or upon a Total Loss of the Vessel, to repayment of the pre delivery instalments of the Contract Price paid by you prior to such termination or a Total Loss of the Vessel (as the case may be) and the value of the Buyer's Supplies delivered to the Shipyard (if any) together with interest thereon at the rate of . (7%) per annum (or . (10%) per annum in the case of a Total Loss of the Vessel) from the respective dates of payment by you of such instalments to the date of remittance by telegraphic transfer of such refund. [3] In consideration of your agreement to make the pre delivery instalments under the Contract and for other good and valuable consideration (the receipt and adequacy of which is hereby acknowledged), we hereby, as primary obligor, irrevocably and unconditionally undertake to pay to you, your successors and assigns, on your first written demand, all such sums due to you under the Contract (or such sums which would have been due to you but for any irregularity, illegality, invalidity or unenforceability in whole or in part of the Contract) PROVIDED THAT the total amount recoverable by you under this Bond shall not exceed US $[26,640,000] . plus interest thereon at the rate of . (7%) per annum (or . (10%) per annum in the case of a Total Loss of the Vessel) from the respective dates of payment by you of such instalments to the date of remittance by telegraphic transfer of such refund. [4] Payment by us under this Bond shall be made without any deduction or withholding, and promptly on receipt by us of a written demand (substantially in the form attached) signed by two of your directors stating that the Builder has failed to fulfil the terms and conditions of the Contract and as a result of such failure, the amount claimed is due to you and specifying in what respects the Builder has so failed and the amount claimed.
+Such claim and statement shall be accepted by us as evidence for the purposes of this Bond alone that this amount claimed is due to you under this Bond. [5] Our liability under this Bond shall not be affected by (v) any insolvency, re organisation or dissolution of the Builder, or (vi) any other matter or thing which may operate to discharge or reduce our liability hereunder.
+The Bonds further provided that they were assignable, that they were governed by English law and that all disputes arising out of them were to be determined by the Commercial Court.
+The resolution of the issue between the parties depends upon the true construction of paragraph [3].
+The Bank promised to pay on demand all such sums due to you under the Contract.
+The question is what was meant by such sums.
+Only two possibilities were suggested.
+The Buyers said (and the Judge and Sir Simon Tuckey held) that the expression such sums referred back to the pre delivery instalments in the first line.
+They said that the purpose of the Bond was to guarantee the refund of pre delivery instalments and that the promise was therefore to refund pre delivery instalments.
+By contrast the Bank said (and Thorpe and Patten LJJ held) that the expression such sums was a reference back to the sums referred to in paragraph [2], namely the repayment of the pre delivery instalments paid prior to a termination of the Contract or a Total Loss of the vessel and the value of the Buyers Supplies in the case of a Total Loss.
+On the Buyers analysis the Bond guaranteed pre delivery instalments which were repayable under Article XII.3 in the case of any insolvency event, whereas on the Banks analysis it did not.
+The Contracts
+It is common ground that the terms of the Contracts are relevant to the true construction of the Bonds.
+They are referred to in the Bonds and provide the immediate context in which the Bonds were entered into.
+They are thus plainly an important aid to the meaning of the Bonds.
+Article X of the Contracts provided, so far as material as follows: ARTICLE X: PAYMENT 5.
+REFUND BY THE BUILDER The payments made by the Buyer to the Builder prior to delivery of the Vessel shall constitute advances to the Builder.
+If the Vessel is rejected by the Buyer in accordance with the terms of this Contract, or if the Buyer terminates, cancels or rescinds this Contract pursuant to any of the provisions of this Contract specifically permitting the Buyer to do so, the Builder shall forthwith refund to the Buyer in US dollars, the full amount of total sums paid by the Buyer to the Builder in advance of delivery together with interest thereon as herein provided within thirty (30) banking days of acceptance of rejection.
+The interest rate of the refund shall be seven per cent (7%) per annum If the Builder is required to refund to the Buyer the installments paid by the Buyer to the Builder as provided in this Paragraph, the Builder shall return to the Buyer all of the Buyer's Supplies as stipulated in Article XIII which were not incorporated into the Vessel and pay to the Buyer an amount equal to the cost to the Buyer of those Buyer's Supplies incorporated into the Vessel. 6.
+TOTAL LOSS If there is a total loss or a constructive total loss of the Vessel prior to delivery thereof, the Builder shall proceed according to the mutual agreement of the parties hereto either: (a) to build another vessel in place of the Vessel so lost . provided that the parties hereto shall have agreed in writing to a reasonable cost and time for the construction or (b) to refund to the Buyer the full amount of the total sums paid by the Buyer to the Builder under the provisions of Paragraph 2 of this Article and the value of Buyer's Supplies delivered to the Shipyard, if any, together with interest thereon at the rate of ten percent (10%) per annum .
+If the parties hereto fail to reach such agreement within two (2) months after the Vessel is determined to be a total loss or constructive total loss, the provisions of (b) hereinabove shall be applied. 8.
+The Builder shall as a condition precedent to payment by the Buyer of the first installment deliver to the Buyer an assignable letter of guarantee issued by a first class Korean Bank . to Buyer's Financiers for the refund of the first installment, and at the same time, together with the letter of guarantee relating to the first installment, Builder shall also deliver to the Buyer an assignable letter of guarantee issued by a first class Korean Bank . for the refund of the respective installments following the way of the payment stipulated in this Article.
+The refund guarantees by the Builder to the Buyer shall be indicated pre delivery installments plus interest as aforesaid to the Buyer under or pursuant to paragraph 5 above in the form annexed hereto as Exhibit A which is yet to be agreed In the event that the Refund Guarantees, for all installments, have not been provided to the Buyer in a form acceptable to the Buyers financiers and have not been issued by an entity acceptable to REFUND GUARANTEE Buyers financiers, by the 31st of August 2007 then the Buyer may cancel this Contract without penalty on either side.
+It is common ground that no form of guarantee was in fact annexed to the Contracts.
+Article XII provided, so far as relevant: ARTICLE XII: BUILDERS DEFAULT 3.
+If the Builder shall apply for or consent to the appointment of a receiver, trustee or liquidator, shall be adjudicated insolvent, shall apply to the courts for protection from its creditors, file a voluntary petition in bankruptcy or take advantage of any insolvency law, or any action shall be taken by the Builder having an effect similar to any of the foregoing or the equivalent thereof in any jurisdiction, the Buyer may by notice in writing to the Builder require the Builder to refund immediately to the Buyer the full amount of all sums paid by the Buyer to the Builder on account of the Vessel and interest thereon at seven percent (7%) per annum on the amount to be refunded to the Buyer, computed from the respective date such sums were paid by the Buyer to the date of remittance of the refundable amount to the Buyer and immediately upon receipt of such notice the Builder shall refund such amount to the Buyer.
+Following such refund the Builder may, but shall not be obliged to, by notice in writing to the Buyer given within ten (10) business days terminate this contract.
+If the Builder does not so terminate the Contract the Buyer's obligation to pay further installments prior to delivery of the Vessel under Article X 2(a),(b),(c) and (d) shall be suspended and the full Contract price shall be paid to the Builder upon delivery of the Vessel in the manner contemplated by Article X paragraph 2(e).
+The Contracts contained a number of provisions which entitled the Buyer to cancel the contract, namely Articles III.1 and XII.1 (delay) and Article III.2(b), 3(c), 4(d) and 5(d) (insufficient speed, excessive fuel consumption, deficient deadweight or cargo capacity).
+Some of those provisions specifically entitled the Buyer to a refund of all advance payments following cancellation.
+Others did not, although in such cases Article X.5 would apply and have the same effect.
+The Contracts also contained in Article XIII further detailed provisions relating to Buyers Supplies.
+The correct approach to construction
+For the most part, the correct approach to construction of the Bonds, as in the case of any contract, was not in dispute.
+The principles have been discussed in many cases, notably of course, as Lord Neuberger MR said in Pink Floyd Music Ltd v EMI Records Ltd [2010] EWCA Civ 1429; [2011] 1 WLR 770 at para 17, by Lord Hoffmann in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749, passim, in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, 912F 913G and in Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101, paras 21 26.
+I agree with Lord Neuberger (also at para 17) that those cases show that the ultimate aim of interpreting a provision in a contract, especially a commercial contract, is to determine what the parties meant by the language used, which involves ascertaining what a reasonable person would have understood the parties to have meant.
+As Lord Hoffmann made clear in the first of the principles he summarised in the Investors Compensation Scheme case at page 912H, the relevant reasonable person is one who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.
+The issue between the parties in this appeal is the role to be played by considerations of business common sense in determining what the parties meant.
+Sir Simon Tuckey said at para 19 of his judgment that there was no dispute about the principles of construction and the Bank so submitted in its skeleton argument.
+However, I do not think that is quite correct.
+At para 18 Sir Simon identified the question of construction substantially as set out in para 9 above and said at para 19: There is no dispute about the principles of construction to be applied in order to answer this question.
+The court must first look at the words which the parties have used in the bond itself.
+The shipbuilding contract is of course the context and cause for the bond but is nevertheless a separate contract between different parties.
+If the language of the bond leads clearly to a conclusion that one or other of the constructions contended for is the correct one, the Court must give effect to it, however surprising or unreasonable the result might be.
+But if there are two possible constructions, the Court is entitled to reject the one which is unreasonable and, in a commercial context, the one which flouts business common sense.
+This follows from the House of Lords decisions in Wickman Machine Tools Sales Limited v Schuler AG [1974] AC 235, where at 251 Lord Reid said: The fact that a particular construction leads to a very unreasonable result must be a relevant consideration.
+The more unreasonable the result, the more unlikely it is that the parties can have intended it, and if they do intend it the more necessary it is that they shall make that intention abundantly clear. and The Antaios [1984] AC 191, where at 201 Lord Diplock said: If detailed and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business common sense it must yield to business common sense.
+As I read his judgment, Patten LJ did not put the question in quite the same way.
+This can be seen from paras 35 to 44 of his judgment.
+At para 35 he referred to Sir Simon Tuckeys approach at para 19 (as quoted above).
+He also referred to para 18(iii) of the Judges judgment, where the Judge described the Banks construction of the Bond as having the surprising and uncommercial result of the guarantee not being available to meet the Builders repayment obligations in the event of insolvency.
+Patten LJ noted that the Judge appeared to have taken that into account as a factor in favour of the Buyers construction of paragraph [3] of the Bonds.
+Patten LJ added that the Judges approach was the same as that of Sir Simon Tuckey.
+Patten LJ then referred to the cases mentioned above and expressed his conclusion in principle thus at para 42: In this case (as in most others) the Court is not privy to the negotiations between the parties or to the commercial and other pressures which may have dictated the balance of interests which the contract strikes.
+Unless the most natural meaning of the words produces a result which is so extreme as to suggest that it was unintended, the Court has no alternative but to give effect it its terms.
+To do otherwise would be to risk imposing obligations on one or other party which they were never willing to assume and in circumstances which amount to no more than guesswork on the part of the Court.
+Finally, at paras 43 and 44, Patten LJ quoted from the speeches of Lord Wilberforce in Prenn v Simmonds [1971] 1 WLR 1381, 1384 5 and of Lord Hoffmann in Chartbrook at para 20, where they discussed the reason for the rule excluding evidence of pre contractual negotiations.
+In particular they stressed the irrelevance of the parties subjective intentions and noted that the mere fact that a term in the contract appears to be particularly unfavourable to one party or the other is irrelevant.
+As Lord Hoffmann put it, the term may have been agreed in exchange for some concession made elsewhere in the transaction or it may simply have been a bad bargain.
+I entirely accept those caveats.
+However, it seems to me to be clear that the principle stated by Patten LJ in para 42 is different from that stated by the Judge in his para 18(iii) and by Sir Simon Tuckey in para 19.
+It is not in my judgment necessary to conclude that, unless the most natural meaning of the words produces a result so extreme as to suggest that it was unintended, the court must give effect to that meaning.
+The language used by the parties will often have more than one potential meaning.
+I would accept the submission made on behalf of the appellants that the exercise of construction is essentially one unitary exercise in which the court must consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract, would have understood the parties to have meant.
+In doing so, the court must have regard to all the relevant surrounding circumstances.
+If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other.
+This conclusion appears to me to be supported by Lord Reids approach in Wickman quoted by Sir Simon Tuckey and set out above.
+I am of course aware that, in considering statements of general principle in a particular case, the court must have regard to the fact that the precise formulation of the proposition may be affected by the facts of the case.
+Nevertheless, there is a consistent body of opinion, largely collated by the Buyers in an appendix to their case, which supports the approach of the Judge and Sir Simon Tuckey.
+Where the parties have used unambiguous language, the court must apply it.
+This can be seen from the decision of the Court of Appeal in Co operative Wholesale Society Ltd vs National Westminster Bank plc [1995] 1 EGLR 97.
+The court was considering the true construction of rent review clauses in a number of different cases.
+The underlying result which the landlords sought in each case was the same.
+The court regarded it as a most improbable commercial result.
+Where the result, though improbable, flowed from the unambiguous language of the clause, the landlords succeeded, whereas where it did not, they failed.
+The court held that ordinary principles of construction applied to rent review clauses and applied the principles in The Antaios (Antaios Compania Naviera SA v Salen Rederierna AB) [1985] AC 191.
+After quoting the passage from the speech of Lord Diplock cited above, Hoffmann LJ said, at p 98: This robust declaration does not, however, mean that one can rewrite the language which the parties have used in order to make the contract conform to business common sense.
+But language is a very flexible instrument and, if it is capable of more than one construction, one chooses that which seems most likely to give effect to the commercial purpose of the agreement.
+The court also comprised Leggatt and Simon Brown LJJ.
+Simon Brown LJ at p 101 said that, having regard to the improbable result for which the landlords contended, only the most unambiguous of such clauses could properly be found to bear the landlords construction and that in the case of only one of the leases did the clause unambiguously achieve the improbable result for which the landlords contend.
+The case is of interest because Simon Brown LJ considered that, of the other three cases, one unambiguously failed to achieve the result sought by the landlords, whereas, of the other two, he said this at p 102: For my part, I would accept that the more obvious reading of both favours the landlords construction.
+I am persuaded, however, that they are capable of being, and therefore, for the reasons already given, should be, construed differently.
+That case is therefore an example of the adoption and application of the principle endorsed by the Judge and by Sir Simon Tuckey.
+See also International Fina Services AG v Katrina Shipping Ltd, The Fina Samco [1995] 2 Lloyd's Rep. 344, where Neill LJ said at page 350 it was necessary when construing a commercial document to strive to attribute to it a meaning which accords with business common sense.
+In 1997, writing extra judicially (Contract Law: Fulfilling the reasonable expectations of honest men) in 113 LQR 433, 441 Lord Steyn expressed the principle thus: Often there is no obvious or ordinary meaning of the language under consideration.
+There are competing interpretations to be considered.
+In choosing between alternatives a court should primarily be guided by the contextual scene in which the stipulation in question appears.
+And speaking generally commercially minded judges would regard the commercial purpose of the contract as more important than niceties of language.
+And, in the event of doubt, the working assumption will be that a fair construction best matches the reasonable expectations of the parties.
+I agree.
+He said much the same judicially in Society of Lloyds v Robinson [1999] 1 All ER (Comm) 545, 551: Loyalty to the text of a commercial contract, instrument, or document read in its contextual setting is the paramount principle of interpretation.
+But in the process of interpreting the meaning of the language of a commercial document the court ought generally to favour a commercially sensible construction.
+The reason for this approach is that a commercial construction is likely to give effect to the intention of the parties.
+Words ought therefore to be interpreted in the way in which a reasonable commercial person would construe them.
+And the reasonable commercial person can safely be assumed to be unimpressed with technical interpretations and undue emphasis on niceties of language.
+Similar assistance is at hand nearer at home.
+In Gan Insurance Co Ltd v Tai Ping Insurance Co Ltd [2001] CLC 1103, 1118 1119; [2011] EWCA Civ 1047; [2001] 2 All ER (Comm) 299, Mance LJ said: 13.
+Construction, as Sir Thomas Bingham MR said in Arbuthnott v Fagan [1995] CLC 1396 at p 1400 is thus a composite exercise, neither uncompromisingly literal nor unswervingly purposive.
+To para (5), one may add as a coda words of Lord Bridge in Mitsui Construction Co Ltd v A G of Hong Kong (1986) 33 BLR 14, cited in my judgment in Sinochem International Oil (London) Ltd v Mobil Sales and Supply Corp [2000] CLC 878 at p 885.
+Speaking of a poorly drafted and ambiguous contract, Lord Bridge said that poor drafting itself provides: no reason to depart from the fundamental rule of construction of contractual documents that the intention of the parties must be ascertained from the language that they have used interpreted in the light of the relevant factual situation in which the contract was made.
+But the poorer the quality of the drafting, the less willing the court should be to be driven by semantic niceties to attribute to the parties an improbable and unbusinesslike intention, if the language used, whatever it may lack in precision, is reasonably capable of an interpretation which attributes to the parties an intention to make provision for contingencies inherent in the work contracted for on a sensible and businesslike basis. 16 . in my judgment the subclause has no very natural meaning and is, at the least, open to two possible meanings or interpretations one the judge's, the other that it addresses two separate subject matters.
+In these circumstances, it is especially important to undertake the exercise on which the judge declined to embark, that is to consider the implications of each interpretation.
+In my opinion, a court when construing any document should always have an eye to the consequences of a particular construction, even if they often only serve as a check on an obvious meaning or a restraint upon adoption of a conceivable but unbusinesslike meaning.
+In intermediate situations, as Professor Guest wisely observes in Chitty on Contracts (28th edn) vol 1, para. 12 049, a balance has to be struck through the exercise of sound judicial discretion.
+More generally, in Homburg Houtimport BV v Agrosin Private Ltd: The Starsin [2004] 1 AC 715, para 10 Lord Bingham referred to the rule to which Lord Halsbury LC alluded in Glynn v Margetson & Co [1893] AC 351, 359, that a business sense will be given to business documents.
+The business sense is that which businessmen, in the course of their ordinary dealings, would give the document.
+Three other cases merit brief reference.
+The same approach was adopted by Arden LJ in In the Matter of Golden Key Ltd (In Receivership) [2009] EWCA Civ 636, paras 29 and 42 and by this Court in In Re Sigma Finance Corporation (in administrative receivership) [2009] UKSC 2; [2010] 1 All ER 571, where Lord Mance said at para 12 that the resolution of an issue of interpretation in a case like the present was an iterative process, involving checking each of the rival meanings against other provisions of the document and investigating its commercial consequences.
+Finally, it is worth setting out two extracts from the judgment of Longmore LJ in Barclays Bank plc v HHY Luxembourg SARL [2010] EWCA Civ 1248; [2011] 1 BCLC 336, paras 25 and 26: 25.
+The matter does not of course rest there because when alternative constructions are available one has to consider which is the more commercially sensible.
+On this aspect of the matter Mr Zacaroli has all the cards. 26.
+The judge said that it did not flout common sense to say that the clause provided for a very limited level of release, but that, with respect, is not quite the way to look at the matter.
+If a clause is capable of two meanings, as on any view this clause is, it is quite possible that neither meaning will flout common sense.
+In such circumstances, it is much more appropriate to adopt the more, rather than the less, commercial construction.
+In my opinion Longmore LJ has there neatly summarised the correct approach to the problem.
+That approach is now supported by a significant body of authority.
+As stated in a little more detail in para 21 above, it is in essence that, where a term of a contract is open to more than one interpretation, it is generally appropriate to adopt the interpretation which is most consistent with business common sense.
+For these reasons I prefer the approach of the Judge and Sir Simon Tuckey to that of Patten LJ, which is to my mind significantly different on this point.
+Application to the facts
+As indicated above, two possible interpretations of paragraph [3] of the Bonds were advanced.
+It was conceded on behalf of the Bank in the Court of Appeal that both constructions were arguable.
+I did not understand Mr Guy Philipps QC to resile from that position on behalf of the Bank in this Court.
+In any event, in my judgment there are indeed two possible interpretations.
+The strength of the Banks interpretation is that it is not easy to see the point of paragraph [2] of the Bonds if the Buyers interpretation of paragraph [3] is correct.
+On the other hand, the Buyers interpretation is straightforward.
+It is that, reduced to its essentials, the Banks promise in paragraph [3] was that in consideration of your [ie the Buyers] agreement to make the pre delivery instalments we hereby, as primary obligor, promise to pay to you, your successors and assigns, on your first written demand, all such sums due to you under the Contract .
+In the absence of paragraph [2] there could be no doubt that the reference to such sums was a reference to the pre delivery instalments at the beginning of paragraph [3].
+That makes perfect sense because one would naturally expect the parties to agree (and the Buyers financiers to insist) that, in the event, for example, of the insolvency of the Builders, the Buyers should have security for the repayment of the pre delivery instalments which they had paid.
+The question is whether the presence of paragraph [2] leads to a different conclusion.
+It was submitted with force by Mr Philipps on behalf of the Bank that it did.
+He correctly submitted that paragraph [3] must be construed in its context and that part of the context was paragraph [2], which was of course the immediately preceding paragraph.
+He submitted that the only purpose there can have been for including paragraph [2] in the Bonds was to identify the scope of paragraph [3].
+He further submitted that no other sensible explanation for the inclusion of paragraph [2] had been advanced on behalf of the Buyers.
+I accept the submission that no very good reason was advanced on behalf of the Buyers for the inclusion of paragraph [2] in the Bonds.
+The best they could do was to say that it was a preamble to the operative provision in paragraph [3], that it simply set out some of the Buyers rights under the Contracts and that it was not intended to identify the scope of the Banks liability under the Bonds.
+Patten LJ accepted at para 50 that the Buyers construction was arguable but said that, in his view, it was not the meaning that the document would convey to a reasonable person reading it with knowledge of the terms of the Contracts.
+This must I think mean that he took the view that, although it was arguable that it had that effect, it did not in fact do so.
+Otherwise the Buyers construction could not in any relevant sense have been said to be arguable and Patten LJ would surely not have described it as such.
+Patten LJ made this clear in para 51 (quoted below), where he described the alternative constructions as not being in any way evenly balanced.
+The position is thus that, although he regarded both constructions as arguable in the sense that the Bonds might convey either construction to a reasonable person reading the Bonds with knowledge of the terms of the Contracts, in his view the Banks construction was plainly to be preferred.
+If Patten LJ went further later in para 51, where he said that the fact that cover for the insolvency of the Builder was desirable did not justify a departure from what would otherwise be the natural and obvious construction of the bond, I respectfully disagree because I do not regard the Banks construction as being the natural and ordinary meaning of the Bonds.
+I have considered the competing arguments for myself and have concluded that they are much more finely balanced than suggested by Patten LJ and the Bank.
+In para 48 Patten LJ expressed the view that paragraph [2] of the Bonds reproduced the terms of Article X.5 and Article X.6 of the Contracts and therefore complied with Article X.8.
+In para 49 he concluded that the obvious purpose of paragraph [2] was to give the addressee of the Bonds a clear statement of the Builders obligations under the Contracts which are to be covered by the guarantee and one which is consistent with the terms of the Builders obligations to provide the bond under Article X.8 of the contract.
+For my part, I would not entirely accept that analysis.
+Paragraph [2] of the Bonds did reproduce the terms of Article X.5 and Article X.6 of the Contracts but it does not seem to me that it complied with the requirements of Article X.8.
+As I see it, Article X.8 did not provide for the terms in which the Bonds were to be issued.
+It provided that two letters of guarantee were to be provided, the first by a first class Korean Bank or Guarantee Insurance Company for the refund of the first instalment and the second issued by a first class Korean Bank or Guarantee Insurance Company acceptable to the Buyers financiers for the refund of the respective installments following the way of the payment stipulated in this Article.
+The first paragraph of Article X.8 included this: The refund guarantees by the Builder to the Buyer shall be indicated pre delivery instalments plus interest as aforesaid to the Buyer under or pursuant to paragraph 5 above in the form annexed hereto as Exhibit A which is yet to be agreed.
+In fact there was no form annexed to the Contracts, so it is far from clear what was meant by the sentence of the first paragraph of Article X.8 just quoted.
+As I see it, it was left that the parties would agree the final form of the Bonds referable to the second and subsequent instalments.
+Moreover both the identity of the issuer of the Bonds and the form of the Bonds were to be acceptable to the Buyers financiers.
+That was made clear by the second paragraph of Article X.8 which is quoted in para 11 above.
+I would accept the submission made on behalf of the Buyers that it is clear that neither Article X.5 nor Article X.8 was intended to set out all the circumstances in which the refund guarantees should operate.
+For example, there was no cross reference in Article X.8 to the Builders obligation under Article X.6 of the Contracts to refund the instalments paid in the event of actual or constructive total loss, although it is common ground that the Bonds did cover that obligation.
+In short, Article X.8 did not purport to dictate the final scope of the Bonds.
+In particular, it did not require that the guarantees should cover refund obligations only under Article X.5 and Article X.6 of the Contracts.
+There is a further curiosity in paragraph [2] of the Bonds.
+In describing the Buyers rights under the Contracts, it did not limit their rights to a refund of the pre delivery instalments of the price.
+It extended them to the case where the Buyers were entitled to the value of the Buyers Supplies delivered to the Shipyard (if any), although in so doing it failed accurately to reflect the contractual position in relation to termination as opposed to total loss, since under Article X.5 of the Contracts the obligation on termination was to return the Supplies, and only to (re)pay their value insofar as already incorporated into the Vessel.
+It would seem to follow from the Banks submission that para [2] defined the scope of the Banks obligations under para [3] that the expression all such sums due to you under the Contract included both the obligations to refund identified in para [2] and the obligation to pay the value of the Buyers Supplies (whatever that might cover).
+That was indeed the submission advanced in the Banks skeleton argument in the Court of Appeal.
+It is however a submission that is no longer advanced by either party.
+That is no doubt because the difficulty with it is that the Bonds were described as Advance Payment Bonds and the amount of each bond was US$26,640,000, which was the total amount of the second and subsequent instalments of the price, and because interest was only payable under para [3] of the Bonds from the respective dates of payment by [the Buyers] of such instalments, thus leaving no room for a right to payment of the value of Buyers Supplies under the Bonds.
+Sir Simon Tuckey took a different view of the construction of the critical clauses of the Bonds from that of Patten and Thorpe LJJ.
+He did so in para 28, where he was considering whether in the particular circumstances of the case the Judge should have had regard to considerations of commercial and business common sense.
+He said this: But should the judge's approach in this case have been more restricted as Mr Philipps contends? I do not think so.
+The title to Article X as a whole is "Payment" but it contains an assortment of different terms.
+Article X.8 is drafted on the basis that the form of guarantee which the parties contemplated would be annexed to the agreement.
+That would be the document to look at if one was trying to discover from the contract what the Buyer was looking for, not the reference back to Article X.5.
+This reference back is poorly drafted and quite capable of referring simply to the opening sentence of paragraph 5.
+It is difficult to construe it in a way which restricts the refund obligations which the bond was to cover, not least because there is no reference to the Article X.6 obligation to a refund following total or constructive loss of the vessel which both parties agree was to be covered by the bond.
+By the same token, no significance should be attached to the omission of the Article XII.3 refund obligation.
+Nor do I think there is anything in Mr Philipps' further point.
+On the happening of an Article XII.3 event the Buyer was entitled to a refund of its advance payments immediately.
+If that did not happen the contract was in a state of limbo: neither party could terminate at that stage.
+If the Builder did not proceed with the construction of the vessel, as would be extremely likely if it was insolvent, the Buyer could terminate for delay under Article XII.l but, under the terms of this article, only after 90 days plus 14 days notice.
+Only then could it call on the Bond.
+I cannot see how any Buyer (or its financiers) could possibly be satisfied with this as a remedy in the situation where the Builder was insolvent or nearly so.
+I agree with Sir Simon Tuckey and prefer his approach to that of the majority in the Court of Appeal.
+In all these circumstances, because of the difficulties in construing para [2] as setting out the sums due under the Bond, if I were focusing only on the language of the clause, I would be inclined to prefer the Buyers construction to that of the Bank.
+I note in passing in this regard that the construction advanced by the Bank was something of an afterthought.
+However, I recognize that, on the Buyers construction, it is not easy to see why paragraph [2] was included in the Bond at all, and that the Banks construction is arguable.
+This case is therefore a good example of the kind of case referred to in the authorities to which I have referred.
+Since the language of paragraph [3] is capable of two meanings it is appropriate for the court to have regard to considerations of commercial common sense in resolving the question what a reasonable person would have understood the parties to have meant.
+As noted at para 17 above, at his para 18(iii) the Judge described the Banks construction of the Bonds as having what he called the surprising and uncommercial result that the Buyers would not be able to call on the Bonds on the happening of the event, namely insolvency of the Builder, which would be most likely to require the first class security.
+I agree with Sir Simon Tuckey that an appellate court is entitled to take account of the fact that an experienced judge of the Commercial Court reached that conclusion.
+In any event, Sir Simon Tuckey expressed essentially the same view in strong terms at para 30: On the Bank's construction the Bonds covered each of the situations in which the Buyers were entitled to a return or refund of the advance payments which they had made under the contracts apart from the insolvency of the Builder.
+No credible commercial reason has been advanced as to why the parties (or the Buyers' financiers) should have agreed to this.
+On the contrary, it makes no commercial sense.
+As the judge said, insolvency of the Builder was the situation for which the security of an advance payment bond was most likely to be needed.
+The importance attached in these contracts to the obligation to refund in the event of insolvency can be seen from the fact that they required the refund to be made immediately.
+It defies commercial common sense to think that this, among all other such obligations, was the only one which the parties intended should not be secured.
+Had the parties intended this surprising result I would have expected the contracts and the bonds to have spelt this out clearly but they do not do so.
+I agree.
+Patten LJs view to the contrary is summarised at para 51: For the reasons which I have given, I do not regard the alternative constructions of paragraph (3) advanced on this appeal as being in any way evenly balanced.
+I also agree with Mr Philipps that it is impermissible to speculate on the reasons for omitting repayments in the event of insolvency from the bond.
+Although the judge is right to say that cover for such event was, objectively speaking, desirable, that is not sufficient in itself to justify a departure from what would otherwise be the natural and obvious construction of the bond.
+There may be any number of reasons why the Builder was unable or unwilling to provide bank cover in the event of its insolvency and why the Buyer was prepared to take the risk.
+This is not a case in which the construction contended for would produce an absurd or irrational result in the sense described in the cases I have referred to and merely to say that no credible commercial reason has been advanced for the limited scope of the bond does, in my view, put us in real danger of substituting our own judgment of the commerciality of the transaction for that of those who were actually party to it.
+As Hoffmann LJ put it, after quoting from Lord Diplocks speech in The Antaios [1985] AC 191, if the language is capable of more than one construction, it is not necessary to conclude that a particular construction would produce an absurd or irrational result before having regard to the commercial purpose of the agreement.
+See, for example, per Hoffmann LJ quoted at para 23 above, where he said: But language is a very flexible instrument and, if it is capable of more than one construction, one chooses that which seems most likely to give effect to the commercial purpose of the agreement.
+See also the quotation from Longmore LJ at para 29 above, where he said that, if a clause is capable of two meanings, it is quite possible that neither meaning will flout common sense, but that, in such a case, it is much more appropriate to adopt the more, rather than the less, commercial construction.
+In para 51 Patten LJ appears to have accepted that no credible commercial reasons were advanced for the limited scope of the Bonds being advanced by the Bank.
+Mr Philipps submitted that it was not necessary for the Bank to address the question but I have no doubt that if he or the Bank had been able to think of a credible reason for excluding repayments in the event of the Builders insolvency, such a reason would have been at the forefront of the Banks case.
+In these circumstances I would, if necessary, go so far as to say that the omission of the obligation to make such re payments from the Bonds would flout common sense but it is not necessary to go so far.
+I agree with the Judge and Sir Simon Tuckey that, of the two arguable constructions of paragraph [3] of the Bonds, the Buyers construction is to be preferred because it is consistent with the commercial purpose of the Bonds in a way in which the Banks construction is not.
+I note that Thorpe LJ was initially inclined to agree with the conclusions of the Judge but, in the event, agreed with Patten LJ without giving any independent reasons of his own.
+CONCLUSION
+For these reasons I would allow the appeal and restore the order of the Judge.
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+This is a case about the rights of unmarried fathers to take part in childrens hearings under Part II of the Children (Scotland) Act 1995.
+It raises two distinct issues.
+The first concerns the kind of order made in the sheriff court which would be competent to give a father the right to take part in the childrens hearing.
+The second concerns the compatibility of the present scheme with the rights of the father (and indeed the child) under the European Convention on Human Rights.
+As the reader will discern, Lord Hope has taken the primary responsibility for dealing with the first issue in paras 2 31, and Lady Hale has taken primary responsibility for the second in paras 32 69.
+But this is a judgment of the court with which all members agree.
+The facts
+The appellant K is an unmarried father.
+He is the father of a child, L, who was born on 6 May 2002.
+The childs mother is JR, with whom K formed a relationship in about April 2000.
+They cohabited, together with Ks daughter and JRs son from previous relationships, and then with their own child L. They registered her birth together on 14 May 2002.
+Their relationship broke down in either 2003 or 2004, although there were short periods of separation before then.
+K continued to have contact with L after the separation.
+She had a medical condition which necessitated overnight stays in hospital, and he continued to be involved with her hospital appointments until at least September 2003.
+One might have hoped that it would have been possible for K to maintain contact with her thereafter without recourse to the court.
+But this proved not to be so.
+In about May 2004 he raised proceedings in the sheriff court at Glasgow under section 11 of the Children (Scotland) Act 1995 (the 1995 Act) seeking full parental responsibilities and parental rights in relation to L and a contact order.
+The sheriff made an interim contact order on 11 May 2004.
+Residential contact took place every weekend in terms of that order until December 2005.
+JR then alleged that L had been sexually abused by K, and Ls contact with K was stopped.
+The allegation was investigated by the police, who concluded that there was insufficient evidence to support it.
+But it continued to cast a shadow over Ks attempts to resume contact.
+K returned to the sheriff court on 21 March 2006 when he asked the sheriff to ordain JR to appear to explain her failure to obtemper the interim contact order.
+The sheriff declined to do so, and on 5 May 2006 he suspended interim contact and ordered a report from a local solicitor.
+By then steps had been taken by the local authoritys social work services department to refer Ls case to the Principal Reporter under chapter 3 of Part II of the 1995 Act, on the ground that she was in need of compulsory measures of supervision.
+The referral was made on 9 March 2006.
+It was stated that the department were concerned both about Ls welfare, given the level of conflict which had arisen between her parents which might have caused significant trauma to L, and about the fact that JR had made serious allegations about her ex partner K and continued to do so without appearing to be willing to address these issues by engaging with social work services.
+On 28 June 2006 a childrens hearing was held, which was attended by L and JR.
+K had been notified and was in the building, but he was not allowed to attend the hearing or to participate in the discussion.
+This was because he was not regarded as a relevant person within the meaning of section 93(2)(b) of the 1995 Act: see also section 45(8) as to the right of a relevant person to attend all stages of the hearing.
+It was also noted that there was high level of conflict between him and JR.
+No decisions were taken and the panel continued the hearing to a later date.
+A further childrens hearing was held on 20 July 2006.
+K was again notified, but he did not attend.
+It can be assumed that he would not have been allowed to attend or participate in this discussion, for the reasons that were given on 28 June 2006.
+The grounds for referral were read out to JR by the chairman, as required by section 65(4) of the 1995 Act.
+They included an allegation in terms of section 52(2)(d) of the 1995 Act that L was a child in respect of whom an offence of the kind mentioned in Schedule 1(2) to the Criminal Procedure (Scotland) Act 1995 had been committed by a person who had parental responsibilities in relation to her.
+This was because JR had stated to a general practitioner at Shettleston Health Centre that L had told her that K had stuck his finger in her and that L had had a vaginal discharge.
+JR accepted the majority of the statements of facts but denied the grounds for the referral.
+Because she did not accept the grounds and also because L was too young to understand them, the Principal Reporter was directed to apply to the sheriff for a finding as to whether the grounds for referral were established: see section 65(7) and (9) of the 1995 Act.
+The matter came before the sheriff on 11 August 2006.
+The hearing was attended by a solicitor for the Principal Reporter and a solicitor for the curator ad litem to L. K was not entitled to be there as he was not a relevant person within the meaning of section 93(2)(b), and he did not attend.
+The sheriff was told that the grounds of referral and the facts contained therein, which had been amended following objections by JR, had been accepted by the relevant parties.
+So he deemed them to be established under section 68(8) and remitted the case as amended to the childrens hearing for consideration and determination under section 68(10) of the 1995 Act.
+Section 93(2)(b) of the 1995 Act, as amended, provides that, unless the context otherwise requires, the expression relevant person in relation to a child means: (a) any parent enjoying parental responsibilities or parental rights under Part I of this Act; (b) any person in whom parental responsibilities or rights are vested by, under or by virtue of this Act; and (ba) any person in whom parental responsibilities or parental rights are vested by, under or by virtue of a permanence order (as defined in section 80(2) of the Adoption and Children (Scotland) Act 2007 (asp 4); and (c) any person who appears to be a person who ordinarily (and other than by reason only of his employment) has charge of, or control over, the child.
+This brief narrative is sufficient to identify the issue that lies at the heart of the appeal which has brought the matter before the Supreme Court.
+Decisions of a childrens hearing or a sheriff under Part II of the 1995 Act are not appealable to this court.
+Section 51(1) provides that a child or a relevant person may appeal to the sheriff against a decision of a childrens hearing, and section 51(11) provides that an appeal shall lie by way of stated case either on a point of law or in respect of any irregularity in the conduct of the case from any decision of the sheriff to the sheriff principal or to the Court of Session and, with the leave of the sheriff principal, from any decision of the sheriff principal to the Court of Session.
+It also provides that the decision of the Court of Session in the matter shall be final.
+But the issue has come before this court by a different route, to which the provisions about appeals under section 40(1) of the Court of Session Act 1988 apply.
+These proceedings
+On 4 October 2006 a childrens hearing took place which K was permitted to attend, but not as a relevant person.
+He told the hearing that he wished to continue to have contact with L, which he had been permitted to do by the sheriff on 18 August 2006 at a contact centre each Saturday.
+The sheriff had also appointed a curator ad litem to L on 18 August 2006 and assigned 27 October 2006 as a child welfare hearing so that he could give more detailed consideration to the case.
+At a resumed hearing on 19 October 2006, which K also attended, the childrens hearing felt that it was appropriate to leave contact where it was in terms of the courts order.
+But it decided to place L on a supervision requirement.
+On 27 October 2006 the sheriff conducted the child welfare hearing for which the diet had been assigned on 18 August 2006.
+The hearing was attended by K and JR and their solicitors and by the curator ad litem but not, of course, by the Principal Reporter.
+Having heard submissions from all parties, the sheriff (Sheriff Totten) pronounced the following interlocutor: The sheriff, having heard the curator ad litem and agents for both parties, grants pursuers motion, no 7/2, in part, conjoined by the curator ad litem despite defenders opposition, and in terms thereof; grants the pursuer parental rights and responsibilities to the extent that he becomes a relevant person in the childrens referral relating to the child [L], born 6 May 2002; continues interim contact previously granted; assigns 9 January 2007 at 11 am as a child welfare hearing to monitor contact.
+This interlocutor survived unchallenged by the Principal Reporter until March 2009.
+K was permitted to attend a series of childrens hearings and to participate in the discussion on the assumption that he was a relevant person in terms of the interlocutor.
+It was not until over two years later that the Principal Reporter questioned its competency.
+This came about in the following way.
+It will be recalled that the childrens hearing had originally been content to allow contact between father and child to continue in terms of the sheriffs interlocutor of 18 August 2006.
+However, on 13 August 2007, the hearing imposed a condition of no contact between them.
+Initially this was intended as a temporary measure while the social work department assessed the situation in the light of the allegations which had been made as long ago as December 2005.
+But matters dragged on for more than a year without any progress being made.
+Eventually, on 19 January 2009 a childrens hearing took place at which K asked the hearing to remove the condition of no contact, arguing that there was no substance in the allegations that had been made against him and that he had a right to see his daughter.
+The childrens hearing decided to continue the supervision order and directed that K was not to have contact with L. K appealed against this decision to the sheriff under section 51(1) of the 1995 Act.
+He averred that he was a relevant person for the purposes of those proceedings in terms of section 93(2)(b).
+The Principal Reporter did not at first challenge this averment.
+But in her amended answers she averred that K did not fall into any of the categories listed in section 93(2)(b).
+Faced with the fact that K had obtained an interlocutor from the sheriff which appeared to be inconsistent with that averment, she presented a petition to the Court of Session in March 2009 for suspension of the interlocutor of 27 October 2006 on the ground that it was incompetent.
+On 27 March 2009 the Lord Ordinary, Lady Stacey, suspended the sheriffs interlocutor of 27 October 2006 ad interim.
+K then lodged answers to the Principal Reporters petition in which, after averring that the interlocutor was competently made, he averred that it was not competent for the petitioner to seek suspension of it, as she had invited K to the childrens hearings and had involved him in proceedings adverse to him which she was now seeking to prevent him from appealing and had delayed challenging it for several years.
+He then averred that, esto the interlocutor was incompetent and/or ambiguous as averred by the petitioner, it together with the provisions of the 1995 Act should be read and given effect in a way that was compatible with his rights under articles 6 and 8 of the Convention, read individually and when taken together with article 14.
+On 14 May 2009 Lady Stacey gave leave to reclaim against her interlocutor of 27 March 2009.
+The case called before the First Division (the Lord President (Hamilton), Lady Paton and Lord Carloway) for a hearing on the summar roll on 17 and 18 November 2009.
+On 21 January 2010 the First Division refused Ks reclaiming motion and his application for a declaration that section 93(2)(b) of the 1995 Act was incompatible with Ks rights under articles 6, 8 and 14 of the European Convention on Human Rights.
+It granted decree for suspension of the interlocutor of 27 October 2006 in terms of the prayer of the petition.
+The opinion of the court was delivered by Lord Carloway.
+It is against that interlocutor that K now appeals to this court.
+The issues
+The parties are agreed that the issues arising in this appeal are as follows: (i) whether K was entitled to participate in childrens hearings by virtue of the interlocutor of 27 October 2006, or whether that order was incompetently pronounced and was therefore appropriately suspended by the Court of Session; (ii) whether the operation of section 93(2)(b) of the 1995 Act in defining persons entitled to participate in a childrens hearing is such as to be incompatible with Ks rights under articles 6, 8 or 14 of the Convention; and (iii) if so, whether such incompatibility can be addressed by reading down section 93(2)(b) of the 1995 Act under section 3 of the Human Rights Act 1998 or whether there ought to be a declaration of incompatibility.
+Underlying these three questions there is a fundamental issue about fairness.
+It is most clearly demonstrated by what happened on 20 July 2006 when, in Ks absence, the childrens hearing considered whether the grounds of referral were accepted and by what happened on 11 August 2006 when, again in Ks absence, the sheriff held that the grounds of referral were established.
+Those grounds were based in part on allegations about Ks conduct which, if found to be established, were bound to affect the way Ls case was dealt with from then on, especially with regard to issues about whether there should be contact between her and K.
+Yet K was given no opportunity to be heard so that he could refute the allegations.
+This strikes us as quite contrary to one of fundamental rules of natural justice, the right to be heard.
+The fundamental issue of fairness is also demonstrated by the decision of the childrens hearing to deny all contact between father and child.
+That requirement effectively superseded any order for contact which had been made by the sheriff court.
+Yet if the Principal Reporter is correct, the father had no right to appear in the childrens hearing to contest the requirement or to appeal against it to the sheriff court, unless and until he got an appropriate order in separate proceedings before the sheriff court.
+That too strikes us as quite contrary to one of the fundamental rules of natural justice.
+A childs mother has parental responsibilities and parental rights in relation to her child, whether or not she is or has been married to the childs father: section 3(1)(a) of the 1995 Act.
+As such, she will always be a relevant person within the meaning of section 93(2)(b)(a) (unless and until she is deprived of all the parental responsibilities and parental rights by order of a court).
+By section 23 of the Family Law (Scotland) Act 2006 it was provided that section 3(1) of the 1995 Act be amended to the effect that unmarried fathers who are registered as the childs father under section 18 of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 or the equivalent enactments in England and Wales or Northern Ireland were automatically to have parental responsibilities and parental rights in relation to the child.
+So they too will always be a relevant person within the meaning of section 93(2)(b)(a).
+But by section 23(4) of the 2006 Act it was provided that the amendment to section 3(1) of the 1995 Act was not to confer parental responsibilities or parental rights on a man who was registered as the childs father jointly with the mother before the coming into force of the amendment.
+K was registered as Ls father on 14 May 2002, shortly after she was born.
+But, as the amendment is not retrospective, it does not apply to him.
+An unmarried father can acquire parental responsibilities and parental rights by agreement with the childs mother under section 4 of the 1995 Act.
+In Ks case, once his relationship with JR had broken down, this was unlikely to be possible.
+The only way he could acquire them was by applying to the court for a grant of those rights under section 11 of the 1995 Act, which is what he did in May 2004, as we pointed out in para 2.
+The right to be heard is not, of course, an absolute right that must be made available in all circumstances.
+In Russell v Duke of Norfolk [1949] 1 All ER 109, 118 Tucker LJ said: There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal.
+The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.
+These observations were approved in Ceylon University v Fernando [1960] 1 WLR 223 and in In re K (Infants) [1965] AC 201.
+The point was made in the latter case that the requirement had to yield to the paramount consideration, which was the welfare of the children.
+No doubt there will be circumstances where a childrens hearing may think it necessary, in the interests of the child, to exclude a relevant person from the hearing under section 46 of the 1995 Act: see further in para 46 below.
+In this case however, where the issue is whether allegations which profoundly affect the relationship between parent and child have been established, the inequality of treatment between the mother and unmarried fathers who were registered after 4 May 2006 on the one hand and unmarried fathers in Ks position on the other is striking.
+The question whether the amendment should apply to fathers who had already registered was considered by the Scottish Executive prior to its enactment.
+It preferred to give the benefit of it only to unmarried fathers who registered the birth after the legislation came into force, on the ground that the law should be clear, precise and predictable: see Parents and Children (Scottish Executive, 2000), paras 2.16 2.18.
+The majority of those who responded to the consultation shared this view: Family Matters, Improving Family Life in Scotland (Scottish Executive, 2004), p 15.
+It is understandable that the Scottish Parliament would not wish retrospectively to confer all the parental responsibilities and parental rights upon all registered unmarried fathers irrespective of their actual relationship with the child.
+But in the present context it is very hard to see how the difference in treatment under Part II of the 1995 Act can be justified.
+Issue (i): the sheriff's interlocutor
+The operative part of the interlocutor of 27 October 2006 falls into three parts: (i) the granting to K of parental rights and responsibilities to the extent that he becomes a relevant person in the childrens referral relating to the child [L]; (ii) the continuation of the interim contact previously granted; and (iii) the assigning of a further diet as a child welfare hearing to monitor contact.
+It is the first part only that is said by the Principal Reporter to be incompetent.
+The First Divisions discussion of this issue begins by making the point, with which no one would disagree, that interlocutors should be unambiguous and that they must mean what they say: para 58.
+It is then said that there is no principle of reading interlocutors down in a way which would make them compatible with Convention rights.
+It is true that the direction in section 3 of the Human Rights Act 1998 deals only with the way primary and subordinate legislation should be read and given effect.
+But a court is a public authority, and if an interlocutor is capable of being read and given effect in a way which is compatible with Convention rights that way of construing it is to be preferred to one that does not do so.
+As the discussion proceeds, however, this apparently rather uncompromising approach gives way to a recognition that if the problem was just a lack of specification that might not, in itself, render the interlocutor incompetent: para 60.
+The question to which the discussion then turns is whether it was open to the sheriff to make an order under section 11(1) of the 1995 Act which did no more than grant to the father a right to be heard at a childrens hearing: para 65.
+It is pointed out that such a right is not a defined responsibility or right in terms of the statute.
+Reference is made to the reasoning of Sheriff Principal Dunlop QC in T v A 2001 SCLR 647, 2001 GWD 15 567 in which he said that the court should not grant an order under section 11 simply because the father would thereby become entitled to appear at a childrens hearing, and to observations to the same effect by Sheriff BA Kerr QC in Greenhorn v Hamilton, unreported, 2 March 1999.
+This part of the discussion concludes at the end of para 66 with these words: The scheme of the Act is that a father must first persuade the court on the merits, applying the overarching principles, of imposing upon him the defined parental responsibilities, or one or more of them.
+Success in such an application will make the father a relevant person.
+We see no reason to disagree with this observation, although we would include the possibility of the father being given the parental rights, or one or more of them, as well: see section 11(2)(b).
+The point that the sheriff would have misdirected himself if he thought that it was open to him simply to grant a right to be heard at a childrens hearing was not, in the end, the reason why the First Division held that the interlocutor was incompetent.
+There are indications in paras 68 70 that it might have considered altering the interlocutor by suspending it in part or substituting different words, had it not been for the fact that a proof had been set down in the sheriff court to take place in less than two months time.
+The basis of the decision that the interlocutor is incompetent is to be found in para 67, where it is said that, when he restricted himself to the limited question of whether the fathers presence would be of assistance to the hearing in determining the appropriate order to make in the interests of the childs welfare, the sheriff did not address the three overarching principles: see section 11(7) of the 1995 Act.
+This point is summarised at the end of para 67 in these words: In failing to form a view, by applying the overarching principles, the sheriff erred in law.
+He acted otherwise than within the powers conferred by the Act (section 11(7)) and thus in an incompetent manner.
+If there had been some evidence to show that the sheriff failed to address his mind to the overarching principles, there would have been something to be said for the view that he had misdirected himself in law.
+This would have provided a ground for the parties to appeal, but of course the Principal Reporter was not a party to the proceedings in the sheriff court.
+Her only method of challenge was by the proceedings which are now before us, but she did not bring these timeously.
+Instead, K attended childrens hearings and was involved in the discussion on the basis of the interlocutor in the reporters presence without objection for more than two years.
+In McDougall v Galt (1863) 1 M 1012, 1014 Lord Ardmillan said that if there is any point settled in the courts practice, it is that when a judgment has been implemented it cannot be reviewed by suspension: see also Mackay, Practice of the Court of Session (1877 1879), vol ii, p 483; Maclaren, Court of Session Practice (1916), p 153.
+We very much doubt whether suspension was an appropriate remedy in the events that happened in this case.
+But, as this point was not developed in argument and there are more fundamental objections to the First Divisions decision, we shall not say any more about it.
+First there are the questions that have been raised about the terms of the interlocutor and whether it was one which the sheriff had power to grant under section 11(1) of the 1995 Act.
+The critical phrase in the interlocutor is that part of it which is introduced by the words to the extent that: viz: grants the pursuer parental rights and responsibilities to the extent that he becomes a relevant person in the childrens referral relating to [L].
+Section 11(1) provides that an order may be made under that subsection in relation to parental responsibilities and parental rights.
+Section 11(2) provides that the court may make such order under subsection (1) as it thinks fit and that, without prejudice to the generality of that subsection, it may in particular make any of the orders that it then lists.
+These include: (b) an order (i) imposing upon a person (provided he is at least sixteen years of age or is a parent of the child) such responsibilities; and (ii) giving that person such rights; An order giving a person the right to participate in a childrens referral is not one of those listed in section 11(2).
+It is not all that difficult, however, to understand what the sheriff was seeking to achieve.
+One of the parental responsibilities listed in section 1(1) of the 1995 Act is the responsibility to safeguard and promote the childs health, development and welfare.
+Among the parental rights that are listed in section 2(1) to enable the parent to fulfil his parental responsibilities is the right if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis.
+The effect of the referral was to subject the exercise of parental responsibilities and parental rights to the control and supervision of the childrens hearing: see sections 69 and 70 of the 1995 Act.
+But the participation of those listed in section 93(2)(b) as relevant persons is an essential part of the exercise.
+That is why such a person has the right, and indeed the duty unless the hearing are satisfied that it would be unreasonable to require his attendance, to attend.
+K was a person with whom L was to continue to have interim contact, as the sheriff ordered in part (ii) of his interlocutor (see para 19, above).
+The effect of the referral was that continuation of this contact was subject to the views of the childrens hearing.
+K needed to be given the parental right to maintain personal relations with L so that he could participate in the discussions which were to take place there.
+He also needed to be made subject to the parental responsibility to safeguard and promote Ls health, development and welfare so that the hearing could be confident that he would contribute to a discussion of those aspects of Ls well being responsibly.
+The problem therefore lies in the wording of the interlocutor rather than what, on a sensible reading of it, the sheriff was seeking to achieve.
+Miss Wise, very helpfully, provided some suggestions as to how the interlocutor might be re worded so as to bring it within the scope of section 11(1).
+The first of these suggestions was as follows: makes an order ad interim in terms of section 11(2)(b) of the Children (Scotland) Act 1995 imposing upon the pursuer the parental responsibility in respect of the child, X, to safeguard and promote the said childs health, development and welfare but restricts the exercise of said parental responsibility to participation in proceedings before the childrens hearing in respect of said child.
+Another suggestion would have imposed upon the pursuer the parental responsibilities and given him the parental rights too, but would have limited their exercise in the same way.
+The point that these suggestions illustrate is that the defect in the sheriffs interlocutor is one of specification, not one of substance.
+He did not refer to section 1(1) or 2(1) or to section 11(2), and he did not spell out in terms those parental rights and parental responsibilities that were relevant in Ks case.
+Nor did he refer in terms to participation in the childrens hearing as setting the limits within which the parental responsibilities and parental rights could be exercised.
+It would have been better if he had.
+But it would be going too far to hold that his interlocutor was incompetent because he did not do so.
+His wording appears not to have given rise to any misunderstanding or difficulty until the Principal Reporter sought to challenge the interlocutor in these proceedings.
+It is true, as the First Division said in para 58 of its opinion, that interlocutors should be unambiguous and not capable of alternative constructions.
+But it has not been suggested that this interlocutor, less than perfect though it may be, suffers from an ambiguity which rendered its application in Ks case uncertain or impracticable.
+We would therefore reject this ground, which was the one relied on by the Principal Reporter, for holding that the interlocutor of 27 October 2006 was incompetent.
+What basis is there, then, for the conclusion that the sheriff did not address his mind to the overarching principles when he pronounced his interlocutor? There is nothing in the wording of the interlocutor itself which suggests this.
+If anything, the second and third parts of it (see para 19, above) suggest the contrary.
+He decided to continue the interim contact previously granted and to assign a further diet as a child welfare hearing to monitor contact.
+The first of these orders was an order of the kind contemplated by section 11(2)(d) of the 1995 Act.
+So when the sheriff was considering whether or not to make it under section 11(1), he was required by section 11(7) to have regard to the overarching principles.
+The same applied to his decision to appoint a hearing to monitor contact, as this was to assist him in deciding whether or not to make any further orders about contact.
+The fact that he made these further orders, to the competency of which no objection has been taken, indicates that the sheriff had the overarching principles in mind during the hearing on 27 October 2006.
+This would not be at all surprising, as Sheriff Totten had been designated for dealing with cases of this kind and was well equipped for doing so by training and experience.
+Counsel for the curator ad litem, Miss Clark, informed the court that the sheriff was invited at the hearing to address the section 11(7) principles when he was considering whether to make any order under section 11(1) of the 1995 Act.
+He was asked to consider the childs best interests as paramount and to consider whether it would better that an order be made than that no order be made.
+She submitted that it was to be inferred that the sheriff, who had heard these submissions, determined that it was in Ls best interests that K should participate in the decision making process and, applying the section 11(7) principles, that it was better for the child that an order be made.
+Miss Wise QC for the Principal Reporter said that she did not support the reasoning in para 67 of the First Divisions judgment.
+Her point was that the right which the sheriff appeared to have granted was one which he had no power to grant under section 11(1).
+It was the nature of the order he made that she objected to, not any defect in the process of reasoning that led up to it.
+We do not think that there was a sound basis for the First Divisions view that the sheriff failed to apply the overarching principles.
+All the indications are to the contrary.
+If suspension was an appropriate remedy, which we doubt, we think that there were no grounds for suspending this interlocutor because this very experienced sheriff did not apply his mind to the overarching principles.
+It would require clear evidence to justify the conclusion that he failed to address his mind to them.
+Evidence of that kind is completely lacking.
+Indeed, such evidence as there is suggests that he had these principles in mind throughout the hearing.
+In any event, failure to apply the correct principles when making an order, while it may well be a ground of appeal, would not normally render the order incompetent.
+We would therefore reject this ground also for holding that the interlocutor was incompetent.
+Issue (ii): articles 6, 8 and 14 of the Convention
+In his answers to the petition K raised this issue on an esto basis only.
+It was put forward as an alternative argument, which would require to be addressed only if the court were to hold that the interlocutor of 27 October 2006 was incompetent.
+The First Division had to deal with the issue as it held that the interlocutor was incompetent.
+It held that there was no incompatibility with Ks Convention rights: paras 78 81.
+As we disagree with its finding that the interlocutor was incompetent, it follows that the contingency to which Ks averments were addressed has not arisen.
+But as a public authority the court has its own duty to act compatibly with the Convention rights.
+If we take the view that these have been infringed in the case before us, that duty requires us to say so.
+The issue also raises a point of general public importance which is particularly relevant at the present time.
+The Scottish Parliament is currently examining the Childrens Hearings (Scotland) Bill, which deals with the standing of unmarried fathers in clauses 80(3) and 185(1).
+The Parliament is obliged to legislate compatibly with the Convention rights.
+Unless an unmarried father in Ks position can qualify as a relevant person he is at a severe disadvantage from the outset because he has no right to be heard either by the childrens hearing, or by the sheriff on a referral, if allegations are made against him.
+It was said that he could apply to the sheriff for an order under section 11(1) so that this obstacle could be overcome very quickly.
+However, both the appellant and his daughters curator ad litem argue that obtaining an appropriate order from the sheriff court will not always be enough to comply with the Convention rights of either father or child and, indeed, it was not enough in this case.
+Childrens hearings often have to act in an emergency.
+Vital decisions may be made which will determine how the child lives for the foreseeable future.
+It is in the interests of the child as well as the father that he should not be absent at this crucial stage.
+As this case clearly demonstrates, the grounds for referral may be found to be established, with or without a contest, without any involvement from one of the people most closely affected.
+Unpicking these actions and returning to the status quo ante may be well nigh impossible.
+Furthermore, beginning formal proceedings in the sheriff court may be beyond the means and the resources of the father.
+In todays climate, legal aid cannot be guaranteed.
+Speedy decisions also cannot be guaranteed, especially if the claim is contested.
+As Lord Rodger vividly put it during the hearing, the train may have left the station while the father is still waiting at the barrier.
+Requiring this initial filter is said to breach the Convention rights of both father and child under article 8; of the father under article 14 taken with article 8; and of the father under article 6.
+Article 8
+The relevant portions of article 8 read as follows: 1.
+Everyone has the right to respect for his private and family life, his home and his correspondence. 2.
+There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society . for the protection of health or morals, or for the protection of the rights and freedoms of others.
+First, therefore, it must be established that father and child have a family life together.
+The Strasbourg Court has consistently expressed the view that the natural connection between mother and child at birth amounts to family life, which subsequent events could only break in exceptional circumstances: see Berrehab v The Netherlands (1988) 11 EHRR 322; Gl v Switzerland (1996) 22 EHRR 93.
+Fathers will normally have family life with their children if they are married to or living with the mother and child: see, for example, Johnston v Ireland (1986) 9 EHRR 203, para 55; Keegan v Ireland (1994) 18 EHRR 342, para 44.
+But cohabitation is not essential; it will depend upon the relationship established and the degree of commitment shown.
+The principles were summed up like this in Lebbink v The Netherlands (2004) 40 EHRR 417, at para 35: 35.
+The Court recalls that the notion of family life . is not confined to marriage based relationships and may encompass other de facto family ties where the parties are living together out of wedlock.
+A child born out of such a relationship is ipso iure part of that family unit from the moment and by the very fact of its birth.
+Thus there exists between the child and the parents a relationship amounting to family life [referring to Keegan v Ireland (1994) 18 EHRR 342, para 44; Elsholz v Germany [GC] (2000) 34 EHRR 1412, para 43; and Yousef v The Netherlands (2003) 36 EHRR 345, para 51]. 36.
+Although, as a rule, cohabitation may be a requirement for such a relationship, exceptionally other factors may also serve to demonstrate that a relationship has sufficient constancy to create de facto family ties [referring to Kroon v TheNetherlands (1995) 19 EHRR 263, para 30].
+The existence or non existence of family life for the purposes of article 8 is essentially a question of fact depending upon the real existence in practice of close personal ties [referring to K and T v Finland (2000) 31 EHRR 484, para 150].
+Where it concerns a potential relationship which could develop between a child born out of wedlock and its natural father, relevant factors include the nature of the relationship between the natural parents and the demonstrable interest in and commitment by the father to the child both before and after its birth [referring to Nylund v Finland , (Application No 27110/95), (unreported) decision of 29 December 1999] [emphasis supplied].
+However, mere biology is not enough:
+The court does not agree with the applicant that a mere biological kinship, without any further legal or factual elements indicating the existence of a close personal relationship, should be regarded as sufficient to attract the protection of article 8. 37.
+Nevertheless, in that case, although the parents had never lived together and the father had not sought to recognise the child, there had been a real relationship between the parents, the father had been present at the childs birth, had visited regularly, even changed her nappy a few times and babysat once or twice, and was in touch with the mother about the childs impaired hearing.
+This was enough to establish family life between father and child and the Dutch courts should have entertained his application for contact.
+Family members other than biological parents may also enjoy family life with a child.
+This dates back at least as far as the seminal case of Marckz v Belgium (1979) 2 EHRR 330, at para 45, where the Court stated its opinion that family life within the meaning of article 8, includes at least the ties between near relatives, for instance, those between grandparents and grandchildren, since such relatives may play a considerable part in family life (see also, for example, Bronda v Italy (1998) 33 EHRR 81, para 50; GHB v United Kingdom [2000] EHRLR 545; L v Finland (2000) 31 EHRR 737, para 101).
+In X, Y and Z v United Kingdom (1997) 24 EHRR 143, the Court recognised that a female to male transsexual, his partner and their child conceived by donor insemination were a family.
+And in Jucius and Juciuvien v Lithuania (2008) 49 EHRR 70, the Court held that there was family life between a maternal uncle and aunt and two orphaned children who had lived with them for three years.
+But, of course, whether family life has been established will depend upon the facts of each case.
+Furthermore, it may be harder to establish an interference with these wider family ties and such interferences may be easier to justify than interferences with the core family unit.
+In this case, it is not in dispute that this father did enjoy family life with his child.
+He (and his daughter from a previous relationship) were living with her mother when she was born.
+The parents registered the birth together.
+They had lived as one household after the childs birth.
+The father was heavily involved with her medical treatment in hospital.
+It is not entirely clear when he separated from the mother but he had regular contact with his daughter after that.
+In May 2004 he applied to the sheriff court for parental responsibilities and parental rights and a contact order.
+An interim order for weekly overnight stays was made and contact took place in accordance with that order until December 2005.
+The father has been pursuing contact and a parental relationship with his daughter ever since.
+Next, it must be shown that a public authority has interfered with the right to respect for this family life.
+This too is not in dispute.
+Any court order which regulates or restricts the mutual enjoyment of each others company which constitutes a fundamental element of family life will amount to an interference: see, for example, Johansen v Norway (1996) 23 EHRR 33, para 52; L v Finland, above, para 101.
+The decision of a childrens hearing to impose a supervision requirement empowering a public authority to intervene in the childs life will constitute an interference with the family life of the child and the parent with whom she lives and is likely also to interfere with the family life of the child and her other parent.
+Manifestly an order that they were not to have contact with one another did so.
+But it goes further than this, because there are positive procedural obligations inherent in the right to respect for family life.
+Parents must be enabled to play a proper part in the decision making process before the authorities interfere in their family life with their children.
+This has been established time and time again in the Strasbourg jurisprudence, dating back to W v United Kingdom (1987) 10 EHRR 29, at para 64: 64.
+In the Courts view, what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests.
+If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as necessary within the meaning of article 8.
+That case was concerned with the local authoritys decision making processes, at a time when the English courts had no jurisdiction to make orders relating to contact between parents and their children in care.
+But the same obviously applies to judicial decisions such as those made by a childrens hearing.
+In a whole series of cases involving unmarried fathers claims for contact the Strasbourg Court has examined whether the procedural steps taken by the national court were enough to safeguard his interests.
+Thus in Elsholz v Germany (2000) 34 EHRR 1412, at para 52, the Court, sitting as a Grand Chamber, repeated the principle derived from W v United Kingdom and concluded, at para 53, that the refusal of the district court to order an independent psychological assessment of the child and the absence of an oral hearing before the regional court revealed an insufficient involvement of the applicant in the decision making process and thus that his rights under article 8 had been violated.
+Two further points are apparent from the Strasbourg jurisprudence, exemplified by Elsholz, at para 49.
+Thus, while the Court is prepared to allow the authorities a wide margin of appreciation in decisions about residence and taking a child into care, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life.
+This reflects Strasbourgs understanding that it is one thing for parents to have to live separately from their children after all, it is an inevitable result of parental separation that they cannot be together all the time but another thing to restrict or bring to an end the contact between them.
+It also reflects Strasbourgs pre occupation with ensuring that there are sufficient procedural safeguards where fundamental rights are in issue.
+In case after case, including for example, McMichael v United Kingdom (1995) 20 EHRR 205, and Jucius and Juciuvien v Lithuania, above, the court has found violations of article 8, not because of the substance of the decision taken by the national authorities but because the family were not sufficiently involved in the decision making process.
+The point of those procedural safeguards is to ensure that the interference is necessary in a democratic society; in other words, that it can be justified as a proportionate response to a legitimate aim; or, as the Court normally puts it when considering the substance of the interference, that the reasons for the interference are relevant and sufficient: see, for example, K and T v Finland (2000) 31 EHRR 484, at para 135.
+Next, therefore, it must be asked whether the interference in the procedural rights of father and child is necessary in a democratic society.
+The justifications for interfering with family life need to be kept separate from the justifications for excluding the father from the decision making process at a crucial stage.
+Such justification as there is will fall within the overall aim of protecting health or morals and the rights and freedoms of others, in this case, the interests of the child concerned.
+But the child as well as her father has an interest in the full participation of her father in important decisions about her future.
+The childrens hearing has to have the best and most accurate information that it can in order to make the best decisions about the child.
+Everyone is deprived of that information if findings of fact are made by agreement without the participation of the very person whose conduct is in question.
+If decisions are then made on an inaccurate factual basis the child is doubly let down.
+Not only is the everyday course of her life altered but she may be led to believe bad things about an important person in her life.
+No child should be brought up to believe that she has been abused if in fact she has not, any more than any child should be persuaded by the adult world that she has not been abused when in fact she has.
+So what are the reasons given for excluding a father from the childrens hearings process unless and until he secures a parental responsibilities and parental rights order from the sheriff court? The only justification advanced is that these are meant to be informal round table discussions with only the people present who can make a meaningful contribution to the debate.
+It is important to restrict the numbers involved to those whose participation is indeed necessary.
+But it is difficult to see how excluding a father such as this can possibly be proportionate to that aim.
+The 2006 Act (see para 16 above) provides that all fathers registered since 4 May 2006 are entitled to be present irrespective of the strength of their family life with the child, of whether the decisions of the childrens hearing are likely to interfere with that family life, and of whether they have a relevant contribution to make to the issues in debate.
+Again, it is difficult to see why the exclusion of fathers registered before that date can possibly be justified.
+But registration is not always a reliable guide to whether or not the father has established family life with the child.
+For one thing, it depends upon the co operation of the mother.
+Furthermore, when the alleged grounds for referring the child for compulsory measures of intervention consist almost entirely of allegations against the father, it cannot possibly be legitimate to exclude him for the purpose of restricting the numbers.
+He has to be there so that the grounds for interfering in the childs life, let alone in his, can be properly established.
+If they are established, he has to be there so that sensible and proportionate measures can be taken to protect the child.
+Of course, the child herself has both the right and the duty to attend the hearing: 1995 Act, section 45(1).
+The hearing may release the child from that obligation if satisfied that it would be detrimental to the interests of the child for her to be present, but the child still has the right to be there if she wishes: 1995 Act, section 45(2); and see Childrens Hearings (Scotland) Rules 1996, rule 6.
+In some cases, it could be suggested that the presence of the father would be detrimental to the child.
+But the same is true of any relevant person who has a right to be present.
+The Act provides that the hearing may exclude a relevant person, and/or his representative, but only for so long as it is necessary in the interests of the child where they are satisfied that they must do so in order to obtain the views of the child or that the presence of the person in question is causing or likely to cause significant distress to the child: see 1995 Act, section 46(1).
+It has not been suggested that the risk of silencing or causing distress to the child is a good reason for excluding a father such as this.
+However, some importance was attached to the fact that the attendance of a relevant person is not only a right but also an obligation, backed up by a modest criminal sanction for failure to attend: see 1995 Act, section 45(8) and (9).
+It was suggested that it would be wrong to impose such an obligation upon unmarried fathers who might have had nothing at all to do with the child.
+But the obligation only exists unless the hearing are satisfied that it would be unreasonable to require his attendance or that his attendance is unnecessary for the proper consideration of the case: see section 45(8)(b).
+In those circumstances, he, like the child, must be informed of the hearing and of his right to attend it but that he is not obliged to do so: see 1996 Rules, rule 7(2).
+None of these very sensible provisions, therefore, can be any obstacle to the involvement of a parent who wishes to be there.
+In conclusion, therefore, a parent (or other person) whose family life with the child is at risk in the proceedings must be afforded a proper opportunity to take part in the decision making process.
+As currently constituted the childrens hearing system violated the article 8 rights of this father (and indeed of his child) and risks violating the rights of others in the same situation.
+Article 14
+Article 14 prohibits discrimination in the enjoyment of the Convention rights on any ground such as, inter alia, birth or other status.
+It is not necessary to show that one of the Convention rights has been violated as long as the facts fall within the ambit of one of those rights.
+In this case, it is not in dispute that the facts fall within the ambit of article 8.
+As there has been a violation of the rights of both father and child under article 8, it is not strictly necessary to consider article 14.
+However, the matter was fully canvassed before us and it may be helpful to offer some observations upon it and in particular upon the case of McMichael v United Kingdom, on which so much weight was placed by the respondent and the Lord Advocate.
+As the Grand Chamber observed in Sommerfeld v Germany (2003) 38 EHRR 756, para 92, it is well established that a difference in treatment is discriminatory for the purposes of article 14 if it has no objective and reasonable justification, that is 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.
+The Grand Chamber continued, at para 93: The court has already held that very weighty reasons need to be put forward before a difference in treatment on the ground of birth out of or within wedlock can be regarded as compatible with the Convention (see Mazurek v France, 1 February 2000, at para 49; and Camp v The Netherlands (2000) 34 EHRR 1446, at paras 37 38).
+The same is true for a difference in the treatment of the father of a child born of a relationship where the parties were living together out of wedlock as compared with the father of a child born of a marriage based relationship.
+See also Sahin v Germany [2003] 2 FLR 671, paras 93 and 94.
+However, the Court has consistently held that the wide variations in the circumstances of unmarried parents may justify an initial attribution of parental authority to the mother alone: see, for example, Zaunegger v Germany (2009) 50 EHRR 952, at paras 55 56.
+But when it comes to later disputes between the parents about residence or contact, the Court has also held that differences in treatment between married and unmarried fathers cannot be justified.
+This has been applied to matters of substance, such as requiring the mothers consent to joint custody (as in Zaunegger v Germany) or placing a heavier burden on a father seeking access (as in Sahin v Germany).
+Where matters of procedure are concerned, the court has not drawn any distinction between the procedural protection which must be afforded to married and unmarried fathers against interference with their family lives with their children (as in Elsholz v Germany, Sahin v Germany; Sommerfeld v Germany).
+It is significant that in the case of McMichael v United Kingdom (1995) 20 EHRR 205, which concerned unmarried parents in the childrens hearing system, the article 8 rights of each parent were held to have been violated by their inability to have sight of important documents before the childrens hearing: see para 92.
+The fathers complaint of a breach of article 14 was rejected.
+But it is clear that the main focus of that complaint was against his status as a natural father in Scots law and it is only that complaint which the Court addressed in holding that the initial allocation of parental authority was justified by the aim of distinguishing meritorious from unmeritorious unmarried fathers: see para 98.
+Although the father also complained that he had no legal rights to participate in the care proceedings (see para 94), the court did not address this; this is scarcely surprising as the father had in fact participated throughout the proceedings as representative of the mother.
+The issue which we now face is the discrimination between married and unmarried fathers, and indeed between mothers and unmarried fathers, in their rights to participate in the childrens hearing when the parents are in conflict.
+The series of German cases, upholding the right of any father who enjoys family life with his child to participate in important decisions about that childs future, is therefore much more in point than McMichael.
+We would not, therefore, be disposed to find that the automatic imposition of a burdensome procedural hurdle before some unmarried fathers can become involved in vital decisions about their childrens lives could be justified under article 14.
+The case law suggests the opposite: that the initial allocation of parental rights and responsibilities to mothers alone can be justified because of the wide variations in the actual relationships between unmarried fathers and their children; but that if an unmarried father has in fact established family life with his child, it is no more justifiable to interfere in that relationship without proper procedural safeguards than it is justifiable to interfere in the relationship between a married father and his child.
+If this analysis be correct, a complaint under article 14 would succeed if a complaint under article 8 would succeed and would fail if a complaint under article 8 would fail.
+It would be different, of course, if an unmarried father had been unable to establish family life with his child.
+Then it would be necessary to examine whether the obstacles which either the law or the mother had put in the way of his doing so were unjustifiably discriminatory.
+Elsewhere in the United Kingdom, it has not been thought either necessary or justifiable to place any obstacles in the way of an unmarried father who wishes to bring or participate in legal proceedings about his child.
+But that is not this case and we need not consider it further.
+Article 6
+The relevant portion of article 6(1) reads as follows: In the determination of his civil rights and obligations . , everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
+Is the childrens hearing the determination of the fathers civil rights and obligations? On the one hand, it may be said that he has no parental rights unless and until a court gives him some.
+However, it can scarcely be said that a person who does not currently have a civil right, but who is able to go to court to acquire one, is not entitled to a fair hearing of that claim under article 6(1).
+The courts decision will determine whether or not he has that right.
+That must apply to the determination of a claim under section 11 of the 1995 Act.
+But does it also apply to the determination of a childrens hearing which might for the time being override that claim? If it did, all would depend upon who amongst the people not currently holding any of the parental rights or parental responsibilities, or the benefit of a court order relating to the child, was entitled to bring a claim for an order under section 11 of the 1995 Act.
+The court has power to make such orders in the relevant circumstances: see section 11(1).
+The relevant circumstances are either (a) that an application has been made by someone who is entitled to do so or (b) that the court thinks that it should make an order of its own motion.
+Those entitled to apply are (ii) someone who currently has parental responsibilities or parental rights in relation to the child; (iii) someone who has had parental responsibilities or parental rights but no longer does so; and (i) anyone else who claims an interest.
+It would be absurd to suggest that the childrens hearing is the determination of the civil rights of any person who might at some future date claim an interest in the child for the purpose of making an application under section 11.
+The childrens hearing is not standing in the way of their making a claim to the sheriff court.
+If the circumstances are right, and the over arching principles permit, the sheriff court can make an order which would entitle that person to take part in the childrens hearing.
+It is different, however, if a person has established family life with the child with which the decision of the childrens hearing may interfere.
+As Lord Nicholls of Birkenhead pointed out in In re S (Minors) (Care Order: Implementation of Care Plan) [2002] UKHL 10, [2002] 2 AC 291, at para 71, all the Convention rights are now civil rights in United Kingdom law as a result of the Human Rights Act 1998.
+The position now is therefore different from that in McMichael.
+Thus the question of whether the childrens hearing is the determination of a civil right brings us back to the question of whether the decision may interfere with established family life between a person and the child.
+Once again, therefore, if this analysis be correct, article 6 adds nothing to the established position under article 8.
+It is fair to say that Mrs Janys Scott QC, on behalf of the father, did not put article 6 at the forefront of her argument.
+Miss Clark, for the childs curator ad litem, concentrated solely on article 8.
+Issue (iii): how can the incompatibility be cured?
+If it be right that the present position violates the article 8 rights of some unmarried fathers and indeed of some other people and their children, how can it be cured? None of the parties before this court, and in particular the Lord Advocate whose principal interest this was, wished us to make a declaration of incompatibility if this could be avoided.
+Under section 3(1) of the Human Rights Act 1998, all legislation must be read and given effect in a way which is compatible with the Convention rights.
+As Lord Steyn said in Ghaidan v Godin Mendoza [2004] UKHL 30, [2004] 2 AC 557, para 50, interpretation under section 3(1) is the primary remedy and resort to making a declaration of incompatibility must always be an exceptional course.
+The question is whether we can be confident that the words that are needed are consistent with what the legislation was seeking to achieve.
+There is, of course, an important distinction between interpretation and amendment.
+As Lord Rodger explained in Ghaidan v Godin Mendoza, at para 121: If the court implies words that are consistent with the scheme of the legislation but necessary to make it compatible with Convention rights, it is simply performing the duty which Parliament has imposed on it and on others.
+It is reading the legislation in a way that draws out the full implications of its terms and of the Convention rights.
+And, by its very nature, an implication will go with the grain of the legislation.
+By contrast, using a Convention right to read in words that are inconsistent with the scheme of the legislation or with its essential principles as disclosed by its provisions does not involve any form of interpretation, by implication or otherwise.
+It falls on the wrong side of the boundary between interpretation and amendment of the statute.
+The provision in question is the definition of a relevant person contained in section 93(2)(b).
+It is worth setting out once more the four different kinds of person listed: (a) any parent enjoying parental responsibilities or parental rights under Part I of this Act; (b) any person in whom parental responsibilities or rights are vested by, under or by virtue of this Act; and (ba) any person in whom parental responsibilities or parental rights are vested by, under or by virtue of a permanence order (as defined in section 80(2) of the Adoption and Children (Scotland) Act 2007 (asp 4); and (c) any person who appears to be a person who ordinarily (and other than by reason only of his employment) has charge of, or control over, the child.
+It will be seen, therefore, that (a) includes all mothers unless and until they are deprived of all parental rights and responsibilities by order of a court; all fathers who are married to the childs mother at conception or subsequently, again unless and until deprived of all parental rights and responsibilities by order of a court; all fathers who have been put in the same position as a married father by an agreement with the mother or (which amounts to much the same thing) by having been registered as the father of the child after 4 May 2006; and any other father for so long as he has been given any of the parental responsibilities or parental rights by order of a court (it is not suggested that paragraph (a) requires such a father to have been given all the parental responsibilities and parental rights).
+As a result of the decision of the Extra Division in Authority Reporter v S [2010] CSIH 45, 2010 SLT 765, it also includes any parent enjoying a right of contact in terms of a contact order under Part I of this Act.
+Paragraphs (b) and (ba) are clearly concerned with persons other than parents in whom parental responsibilities or parental rights are vested.
+This would include, for example, guardians appointed by the parents to act after their death: see 1995 Act, section 7; it would also include people enjoying any of the parental responsibilities or parental rights under a court order.
+Paragraph (c) is different from the other two paragraphs in that it does not depend upon readily ascertainable matters of public record but upon a qualitative judgment.
+It recognises that there are people who should be involved in a childrens hearing even though they do not have the benefit of registered parenthood or a court order.
+It would clearly include an unmarried father while he was living with the mother and the child.
+But in the course of the hearing before us it was acknowledged that it might also include an unmarried father who was sharing care with the mother indeed, it might well include a father such as this one with whom the child was staying overnight once a week.
+That was a significant concession.
+The reading down which would be necessary to render section 93(2)(b) compatible with the Convention rights depends upon the right with which it would otherwise be incompatible.
+Thus, if the present position violated the article 14 rights of all unmarried fathers, the obvious solution would be to delete the words enjoying parental responsibilities or parental rights under Part I of this Act from section 93(2)(b)(a).
+This is the solution preferred by Mrs Scott on behalf of the father.
+It could, however, be seen as going against the grain of the Act by breaking the link between automatic participation and parental responsibilities.
+In particular, as Miss Wise pointed out, it would include parents who had been deliberately deprived of all parental responsibilities and parental rights by order of a court.
+In any event it would go further than is necessary to cure the incompatibility which we have identified, which is the failure to respect the procedural rights of fathers who have established family life with their children.
+If the present position were held to violate the right to a fair hearing, under article 6 of the Convention, of those who currently enjoy neither parental rights and parental responsibilities nor family life with the child, then considerable violence would have to be done to the language of section 93(2)(b) in order to put it right.
+Fortunately, that is not the basis upon which we have held there to be a violation.
+Mrs Scotts second solution was to insert the words or appears to be a parent who has a de facto family tie with the child into section 93(2)(b)(c).
+This comes much closer to addressing the incompatibility which this court has found.
+However, it may not go far enough.
+Persons other than parents may have article 8 procedural rights which require to be protected.
+This is not as dramatic an extension as it may seem.
+It is not every aspect of family life which attracts its procedural protection.
+The family succession rights which were in issue in Marckz v Belgium (1979) 2 EHRR 330, or more recently in Pla v Andorra (2004) 42 EHRR 522, are not affected by the childrens hearing.
+The uncle and aunt in Jucius and Juciuvien v Finland (2008) 49 EHRR 70 would be covered by the existing wording of section 93(2)(a)(c), as it appears would be the grandparents in Bronda v Italy (1998) 33 EHRR 81.
+If all that may be at risk is informal contact with the wider family, then the participation of each parent and the child will in most cases afford adequate procedural protection for any article 8 rights which the child and other family members may have.
+But there are cases in which the childs hope of reintegration in her natural family depends upon maintaining the close relationship established with a grandparent or other family member.
+There would then be a procedural obligation to involve that relative in the decision making process.
+The potential for violation could therefore be cured by inserting the words or who appears to have established family life with the child with which the decision of a childrens hearing may interfere.
+This goes very much with, rather than against, the grain of the legislation.
+The aim of the hearing is to enlist the family in trying to find solutions to the problems facing the child.
+This is simply widening the range of such people who have an established relationship with the child and thus something important to contribute to the hearing.
+Mostly, these will be unmarried fathers, but occasionally it might include others.
+It will, of course, involve the Reporter initially and then the childrens hearing in making a judgment.
+But section 93(2)(b)(c) already does this.
+The discussion during the course of the hearing before this court as to whether a father who shared care with the mother might already be covered by this paragraph was ample demonstration of this.
+The case law on whether unmarried fathers have established family life with their children is sufficiently clear and constant for Reporters to develop a checklist or rules of thumb to guide them.
+At the very least, it is likely that all unmarried fathers who were living with the mother when the child was born; or who were registered as the childs father; or who are having contact with the child whether by court order or arrangements with the mother will have established family life with the child.
+In a borderline case, it would be safer to include him and let others argue than to leave him out.
+The fact that the Extra Division in Authority Reporter v S [2010] CSIH 45, 2010 SLT 765, with the support of all the parties, felt able to read words into section 93(2)(b)(a) fortifies us in the belief that it is open to us to adopt this course in order to cure the incompatibility which we have found.
+It does not depart from a fundamental feature of the Act and is well within the overall purpose to which the definition in section 93(2)(b) is directed.
+Conclusion
+We would therefore allow the appeal.
+We would recall the First Divisions interlocutor, sustain Ks first, second and sixth pleas in law and dismiss the petition.
+We would also declare that section 93(2)(b)(c) of the Children (Scotland) Act 1995 should be read so as to include the words or who appears to have established family life with the child with which the decision of a childrens hearing may interfere.
+We would also make a finding that K is a relevant person within the meaning of section 93(2)(b)(c) of the 1995 Act as so read.
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+This case is about the employment status of individuals who are resident in Great Britain and are employed by a British company but who travel to and from home to work overseas.
+Halliburton Manufacturing & Services Ltd (the appellant) is a UK company which is based at Dyce, near Aberdeen.
+It is one of about 70 subsidiary or associated companies of Halliburton Inc, which is a US corporation.
+It supplies tools, services and personnel to the oil industry.
+The employee, Ismail Ravat (the respondent), lives in Preston, Lancashire and is a British citizen.
+He was employed by the appellant from 2 April 1990 as an accounts manager until he was dismissed with effect from 17 May 2006.
+The reason for his dismissal was redundancy.
+The respondent complains that he was unfairly dismissed.
+The complication in his case is that at the time of his dismissal he was working in Libya.
+The question is whether the employment tribunal has jurisdiction to consider his complaint.
+An employment tribunal sitting in Aberdeen (Mr RG Christie, sitting alone) held on 23 November 2007 that it had jurisdiction.
+That decision was set aside by the Employment Appeal Tribunal (Lady Smith, sitting alone) in a judgment which was given on 14 November 2008.
+The respondent appealed under section 37(1) of the Employment Tribunals Act 1996 to the Inner House of the Court of Session.
+On 22 June 2010 an Extra Division (Lord Osborne and Lord Carloway, Lord Brodie dissenting) allowed his appeal: 2011 SLT 44.
+The appellant now appeals to this court.
+The question whether the respondents complaint of unfair dismissal can be heard in Scotland is, as the decisions below show, not an easy one to answer.
+Section 94(1) of the Employment Rights Act 1996 provides: An employee has the right not to be unfairly dismissed.
+Section 230(1) of that Act provides that employee means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.
+Neither of these provisions contains any geographical limitation.
+Nor is any such limitation to be found anywhere else in the Act.
+As Lord Hoffmann observed in Lawson v Serco Ltd [2006] UKHL 3, [2006] ICR 250, para 1, the statement in section 244(1) that the Act extends to England and Wales and Scotland means only that it forms part of the law of Great Britain and does not form part of the law of any other territory, such as Northern Ireland (to which the subsection states the Act does not apply), for which Parliament could have legislated.
+Yet it is plain that some limitation must be implied.
+As Lady Hale noted in Duncombe v Secretary of State for Children, Schools and Families (No 2) [2011] UKSC 36, [2011] ICR 1312, para 5, it was agreed in that case that section 94(1) could not apply to all employment anywhere in the world.
+That must indeed be so: see also Lawson, para 6, where Lord Hoffmann said that all the parties in that case were agreed that the scope of section 94(1) must have some territorial limits.
+But this does not solve the problem as to where the line is to be drawn between those cases to which section 94(1) applies and those to which it does not.
+It is not straightforward.
+As Louise Merrett, The Extra Territorial Reach of Employment Legislation (2010) 39 Industrial Law Journal 355, has pointed out, increasing labour mobility together with the proliferation of multinational companies and groups of companies has made the international aspects of employment law important in an ever growing number of cases.
+The present case is an illustration of the problems that this gives rise to.
+The facts
+As I have already said, the respondent was working in Libya when his employment was terminated.
+From 1990 to 1995 he worked for the appellant in London.
+For the remainder of the period that he was employed by it he worked overseas, initially in Algeria.
+In March 2003 he was offered and accepted a transfer to Libya.
+The arrangement was on what was known as a commuter or rotational basis: employment tribunals judgment, para 5.
+The appellant described the respondents status in documentation attached to his employment contract as that of a UK commuter.
+This was because he continued to live in Great Britain and travelled to and from his home to work for short periods overseas.
+He worked for 28 consecutive days in Libya, followed by 28 consecutive days at home in Preston.
+In effect he was job sharing, working back to back with another employee.
+During the 28 days when he was at home the work was done in his place by another employee on the same arrangement.
+His rotational work pattern was in accordance with the appellants international commuter assignment policy.
+Some of its overseas employees were accorded expatriate status.
+But that was not done in the respondents case because he did not live abroad full time.
+His travel arrangements and costs for commuting between his home in Preston and his workplace in Libya were paid for by the appellant.
+The work that the respondent carried out in Libya was for the benefit of Halliburton Co Germany GmbH, which was another subsidiary or associated company of Halliburton Inc. The German company was charged by the appellant for the respondents services.
+His duties included dealing with statutory compliance in relation to tax, audits and financial control and ensuring that all day to day transactions were reported to the German company in Germany.
+He reported on a daily basis to an operations manager based in Libya, but on policy and compliance issues he reported to an African Region Finance Manager, Mr Strachan, who was employed by another UK Halliburton subsidiary, Halliburton Management Ltd, based in Cairo.
+On human resources his contact was with the appellants human resources department in Aberdeen and with another of its employees who was its human resources representative in Libya.
+The respondent had little by way of day to day contact with the Aberdeen office while he was in Libya, and he had no formal obligation to do any work during the 28 days while he was at home.
+Any duties that he performed in Great Britain, such as responding while at home to emails, were incidental to that overseas employment.
+A feature of the appellants commuter policy was that while he was working on a foreign assignment the employees terms were such as to preserve the benefits, such as pay structure and pensions, for which he would normally be eligible had he been working in his home country other than those which were purely local such as a car allowance: employment tribunals judgment, para 6.
+The respondent was remunerated on the normal UK pay and pension structure that applied to the appellants home based employees.
+He was paid in Sterling into a UK bank account, and he paid UK income tax and national insurance on the PAYE basis.
+In 2003, when he started work in Libya, the respondent was concerned to know whether his employment contract would remain governed by UK employment law: employment tribunals judgment, para 13.
+He asked his manager there what his position was and was assured that he would continue to have the full protection of UK law while he worked abroad.
+He was given a copy of a document in which overseas managers were told to contact the appellants human resources team in Aberdeen when they were considering action in relation to poor performance, misconduct, dismissal or redundancy.
+The decision to dismiss him was taken by Mr Strachan of Halliburton Management Ltd under guidance from the Aberdeen human resources department.
+The respondent then invoked the appellants UK grievance procedure, as he was advised that he was entitled to do by the human resources department.
+The grievance hearing, the redundancy consultations and the respondents appeal against his dismissal all took place in the appellants offices in Aberdeen.
+The respondent received a redundancy payment from the appellant.
+It was stated to have been paid to him in accordance with the Employment Rights Act 1996: see section 135, which confers the right to a redundancy payment to an employee who is dismissed by the employer by reason of redundancy.
+The implied limitation
+The question as to what connection between Great Britain and the employment relationship was required to confer rights on employees working abroad was considered in Lawson v Serco Ltd [2006] UKHL 3, [2006] ICR 250.
+Three appeals were heard together in that case, as illustrations of the situations in which the question of territorial scope might arise.
+Mr Lawson was employed as a security adviser at the British RAF base on Ascension Island.
+Mr Botham was employed as a youth worker at various Ministry of Defence establishments in Germany.
+Mr Crofts was a pilot employed by a Hong Kong airline but was based at Heathrow.
+Having been presented with these examples, the appellate committee sought to identify the principles which should be applied to give effect to what Parliament might reasonably be supposed to have intended and attributing to Parliament a rational scheme: para 23, per Lord Hoffmann.
+As Lord Hoffmann, with whom all the other members of the committee agreed, observed in the final sentence of that paragraph, that involved the application of principles, not supplementary rules.
+Lord Hoffmann took first what Parliament must have intended as the standard, normal or paradigm case: the employee who was working in Great Britain at the time of his dismissal: paras 25, 27.
+Then there were peripatetic employees.
+The former rule, which was introduced by section 22 of the Industrial Relations Act 1971, was that the right not to be unfairly dismissed did not apply to an employment where under his contract of employment the employee ordinarily works outside Great Britain.
+The solution that was adopted in the application of that formula to peripatetic employees was to ask where the employee was based: Wilson v Maynard Shipbuilding Consultants AB [1978] QB 665, per Megaw LJ; Todd v British Midland Airways Ltd [1978] ICR 959, 964, per Lord Denning MR.
+Adopting this approach, Lord Hoffmann said that the common sense of treating the base of a peripatetic employee as, for the purposes of the statute, his place of employment remained valid: para 29.
+That dealt with the case of Mr Croft, the airline pilot, who was based at Heathrow.
+This left the cases of Mr Lawson and Mr Botham, neither of whom was working in Great Britain at the time when he was dismissed.
+Lord Hoffmann called them expatriate employees, and he acknowledged that the problem in their case was more difficult: para 35.
+He recognised that the circumstances would have to be unusual for an employee who works and is based abroad to come within the scope of British labour legislation.
+But he thought there were some who did, and that one should go further and try, without drafting a definition, to identify the characteristics which such exceptional cases will ordinarily have: para 36.
+He then mentioned a number of characteristics which should be regarded as sufficient to take such cases out of the general rule that the place of employment is decisive.
+It would be very unlikely that someone working abroad would be within the scope of section 94(1) unless he was working for an employer based in Great Britain.
+But that would not be enough.
+Something more was necessary: para 37.
+He went on in paras 38 39 to give examples of cases in which section 94(1) might apply to an expatriate employee: the employee posted abroad to work for a business conducted in Great Britain, and the employee working in a political or social British enclave abroad, which were sufficient to cover the cases of Mr Lawson and Mr Botham.
+In para 40 he added this comment: I do not say that there may not be others, but I have not been able to think of any and they would have to have equally strong connections with Great Britain and British employment law.
+Pausing there, it is plain that it would be difficult to fit the respondents case into any of the categories identified by Lord Hoffmann in Lawson.
+He was not working in Great Britain at the time of his dismissal.
+He was not a peripatetic employee.
+He was not working abroad as an expatriate in a political or social British enclave.
+Nor had he been posted abroad to work for a business conducted in Great Britain, as he was commuting from his home in Preston and the company for whose benefit he was working in Libya was a German company.
+But in Duncombe v Secretary of State for Children, Schools and Families (No 2) [2011] ICR 1312, para 8 Lady Hale sounded a salutary warning against that approach to the problem.
+After summarising the principles that were to be derived from Lawson, she said: It is therefore clear that the right will only exceptionally cover employees who are working or based abroad.
+The principle appears to be that the employment must have much stronger connections both with Great Britain and with British employment law than with any other system of law.
+There is no hard and fast rule and it is mistake to try and torture the circumstances of one employment to make it fit one of the examples given, for they are merely examples of the application of the general principle.
+One has to search quite carefully through Lord Hoffmanns speech for statements of general principle.
+But they are there.
+In para 1 he said: Putting the question in the traditional terms of the conflict of laws, what connection between Great Britain and the employment relationship is required to make section 94(1) the appropriate choice of law in deciding whether and in what circumstances an employee can complain that his dismissal was unfair? The answer to this question will also determine the question of jurisdiction, since the employment tribunal will have jurisdiction to decide upon the unfairness of the dismissal if (but only if) section 94(1) is the appropriate choice of law.
+In para 36, having said that the circumstances would have to be unusual for an employee who works and is based abroad to come within the scope of British labour legislation but that he thought that there were some who do, he said: I hesitate to describe such cases as coming within an exception or exceptions to the general rule [that section 94(1) applies to persons employed in Great Britain] because that suggests a definition more precise than can be imposed upon the many possible combinations of factors, some of which may be unforeseen.
+Mr Crow submitted that in principle the test was whether, despite the workplace being abroad, there are other relevant factors so powerful that the employment relationship has a closer connection with Great Britain than with the foreign country where the employee works.
+The response that Lord Hoffmann then gave to that submission needs to be carefully noted: This may well be a correct description of the cases in which section 94(1) can exceptionally apply to an employee who works outside Great Britain, but like many accurate statements, it is framed in terms too general to be of practical help.
+I would also not wish to burden tribunals with inquiry into the systems of labour law of other countries.
+In my view one should go further and try, without drafting a definition, to identify the characteristics which such exceptional cases will ordinarily have.
+Lord Hoffmann was dealing in that passage with those whom he had called expatriate employees.
+Mr Crow appeared for the Secretary of State for Foreign and Commonwealth Affairs and the Ministry of Defence, whose interest was to argue that the employment tribunal did not have jurisdiction to hear Mr Bothams claim for unfair dismissal.
+Lord Hoffmanns rejection of Mr Crows test as too general to be of practical help in that context, where it was possible to identify the guiding characteristics more precisely, is understandable.
+But it is important not to lose sight of the fact that he acknowledged that the principle that Mr Crow had identified might well be a correct description of the cases in which section 94(1) could exceptionally apply to an employee who works outside Great Britain.
+He also described it as an accurate statement.
+His reasons for declining to adopt it in the case of the expatriate employees were (1) that it was framed in terms that were too general to be of practical help in their case and (2) that tribunals should not be burdened with inquiry into the systems of labour law of other countries.
+But I do not see these as reasons for rejecting it in a case such as this which cannot readily be fitted into one or other of Lord Hoffmanns three categories.
+Neither of the specific examples of expatriate employees given by Lord Hoffmann in Lawson applied to the employees in Duncombe.
+They were teachers employed by the British Government to work in European schools abroad.
+They were employed in an international enclave, not a British enclave.
+But their employment had no connection with the country where they happened to work.
+Also discussed in Duncombe were the cases of Wallis and Grocott, who were employed by the British government in NATO establishments in Europe where their servicemen husbands were working (Ministry of Defence v Wallis [2011] ICR 617).
+The Secretary of States argument that their cases did not come within the scope of section 94(1) because they fell within neither of the cases identified as exceptional in Lawson was rejected.
+In para 16 of Duncombe Lady Hale, delivering the judgment of the court, said: In our view, these cases do form another example of an exceptional case where the employment has such an overwhelmingly closer connection with Britain and with British employment law than with any other system of law that it is right to conclude that Parliament must have intended that the employees should enjoy protection from unfair dismissal.
+She went on to identify what in para 17 she referred to as a very special combination of factors on which that conclusion depended.
+They included the fact that the teachers and the wives were employed under contracts governed by English law, which she said must be relevant to the expectation of each party as to the protection which the employees would enjoy.
+The respondents case does not fall within the further example of the expatriate employee within the scope of section 94(1) provided by Duncombe.
+But Lady Hales remark in para 8 that it is a mistake to try and torture the circumstances of one employment to make it fit one of the examples given, for they are merely examples of the application of the general principle, is directly in point.
+The judgment in that case was delivered on 15 July 2011, just over a year after the date when the judges of the Extra Division delivered their opinions.
+Their reasoning and that of Mr Christie in the employment tribunal and Lady Smith in the Employment Appeal Tribunal was based entirely on the guidance that they took from Lord Hoffmanns speech in Lawson.
+They did not have the advantage of reading Lady Hales judgment in Duncombe.
+The decisions below
+The differences of opinion in the employment tribunal, the EAT and the Extra Division are striking.
+On the one hand, the respondents case was seen as that of an expatriate employee whose case could not be brought within Lord Hoffmanns examples of cases falling within that category.
+On the other, it was seen as a case which could be resolved in the respondents favour by applying principles that can be derived from his analysis.
+In the employment tribunal Mr Christie said in para 39 of his judgment that, having regard to what he took to be the general principle to be applied in the case of employees working outside Great Britain, it did not seem to him to be necessary as a first step to place any particular claimant into one or other of Lord Hoffmanns categories: Nothing which he says suggests that that is an essential.
+It seems perfectly conceivable that an employee may have his place of work in another country abroad, but carries it out in a manner or in circumstances where he cannot properly be described as peripatetic or expatriate, and yet be operating in an employment relationship which has a substantial connection with the UK.
+Prior to coming to this particular case, I have had in mind a British citizen who, for example, works abroad on what is often referred to as a rotational system of working, say, four weeks in Africa followed by three weeks on leave at home with his family in, say, Edinburgh and so on, following the pattern.
+He referred in the next paragraph, by way of analogy, to the oil rig worker who was flown out to the Continental Shelf to work for two weeks and was then flown back to stay at home in, say, Dundee for the next two weeks.
+He did not become peripatetic merely because the rig he might be transferred to was in the Norwegian sector or was off the coast of West Africa.
+Having examined all the circumstances peculiar to this case, he concluded in para 54 of his judgment that there remained a sufficiently substantial connection between the employment relationship and Great Britain to enable him to hold that the tribunal had jurisdiction.
+In the Employment Appeal Tribunal Lady Smith said in para 14 of her judgment that she took from Lord Hoffmanns judgment that the fact that an employee was recruited by a British company in Great Britain to work for it abroad would not, in itself, be enough for jurisdiction.
+She referred to the principle identified by him in para 1 of his speech for the appropriateness of recognising jurisdiction in each case (see para 14, above).
+She then examined what she referred to as his discussion of the different categories into which a persons employment could fall in a case where the jurisdiction question arises.
+In para 18 she noted that in his discussion of the expatriate category Lord Hoffmann did not approve of a test of substantial connection.
+On the contrary, he was saying that it was not enough.
+In para 35 she said that she was satisfied that the tribunal erred in law: It applied a test of substantial connection with Great Britain and should not have done so.
+A test of substantial connection falls far short of the criteria inherent in the principles identified by Lord Hoffmann, to which principles I have already referred.
+It also took account of the proper law of the parties contract and the reassurances given to the claimant by the respondents about the availability to him of UK employment law, neither of which was relevant.
+In paras 37 38 she said that the respondent fell plainly within Lord Hoffmanns third category the expatriate category, and that, far from there being something more to show that it was appropriate that there should be jurisdiction, there was something less.
+The respondent was not working for the appellants business at home, but was working in the operation of a German company and was dismissed by an employee who had his work base in Cairo.
+In the Extra Division Lord Osborne said in para 15 that he took from Lord Hoffmanns reference to an employee who works and is based abroad when dealing with what he termed expatriate employees that he meant someone whose place of work and base, which included his place of residence, was situated in a foreign country.
+Referring to the passage in para 40 of Lord Hoffmanns speech, where he said that he could not think of any other examples of expatriate employees to whom section 94(1) might apply but that they would have to have equally strong connections with Great Britain and with British employment law (see para 12, above), he said: Since, in my view, the respondent cannot properly be seen as an expatriate employee, this particular observation is not of direct relevance to his situation.
+However, I consider that what is said comes, perhaps, as close as anything in this judgment to an indication of the kind of connection with Great Britain and British employment law that an employee would require to show to be able to invoke successfully the jurisdiction of an employment tribunal in connection with a claim based upon section 94(1).
+Thus, the reference to strong connections with Great Britain and British employment law seems to me to be important.
+In para 16 of his opinion Lord Osborne said that it was not necessary for a claimant to demonstrate that he might properly be placed in one of the categories considered in detail by Lord Hoffmann.
+An employee might have a place of work in a foreign country but carry it out in a manner and in circumstances in which he could not properly be described as peripatetic or expatriate.
+In para 19 he said that it was not possible, without qualification, to affirm the decision of the employment tribunal as words used by the chairman suggested that he considered that the task that he was undertaking was the exercise of a discretion.
+Lord Hoffmann had made it clear in para 24 of his speech in Lawson that it was a question of law, although involving judgment in the application of the law to the facts.
+But Lord Osborne concluded in para 20 that the tribunal ultimately reached a correct conclusion on the facts.
+Lord Carloway said in para 27 that, as he read Lord Hoffmanns speech, he was setting out three definitive categories of employment, into which every person is capable of being squeezed.
+In para 29 he said that an expatriate employee is one who lives and works abroad.
+That did not apply to the respondent, who had his home in England.
+In para 30 he indicated that he saw the respondent as more peripatetic than expatriate, as these words were used by Lord Hoffmann.
+But he went on to ask himself a broader question.
+This was whether, notwithstanding the foreign elements, Parliament intended section 94(1) to apply to someone in the respondents circumstances whose employer did not regard him as an expatriate but as a commuter and dealt with all his contractual entitlements in Dyce.
+He answered that question in the affirmative.
+Lord Brodie, who dissented, said in paras 54 55 that in his opinion there was no question but that the respondent fell into Lord Hoffmanns expatriate employee category, that living arrangements did not comprise a necessary element in any of them and that he did not see the respondent as falling within the exceptional cases of persons working abroad that he had identified.
+Discussion
+I have set out the reasoning in the judgments below at some length because it shows that, as Mr Christie observed in para 38 of his judgment in the employment tribunal, Lord Hoffmanns analysis in Lawson did not have the effect of eliminating uncertainty and that those who have been looking to it for guidance have found it difficult to apply.
+Mr Christies complaint was that it seemed to remain a very open question as to what exactly amounts to a sufficient or sufficiently substantial connection with Great Britain, and that there was little by way of guidance which employment tribunals might grasp to assist in what test they are to apply or how to go about their task.
+Lady Hales comment in Duncombe, para 8, that there is no hard and fast rule and that it is a mistake to try and torture the circumstances of one employment to make it fit one of the examples given, for they are merely examples of the application of the general principle, will have gone a long way to address this problem.
+But Mr Cavanagh QC for the appellant described this case as much more mainstream because it will cover a much larger class of employees than any one of Lord Hoffmanns categories.
+The problem that it raises must be resolved by applying the relevant guiding principles to the facts described in the employment tribunals judgment.
+As I have already indicated (see para 14, above), it is possible on a careful reading of Lord Hoffmanns speech in Lawson to find what he saw as the guiding principles.
+The question in each case is whether section 94(1) applies to the particular case, notwithstanding its foreign elements.
+Parliament cannot be taken to have intended to confer rights on employees having no connection with Great Britain at all.
+The paradigm case for the application of the subsection is, of course, the employee who was working in Great Britain.
+But there is some scope for a wider interpretation, as the language of section 94(1) does not confine its application to employment in Great Britain.
+The constraints imposed by the previous legislation, by which it was declared that the right not to be unfairly dismissed did not apply to any employment where under his contract of employment the employee ordinarily worked outside Great Britain, have been removed.
+It is not for the courts to lay down a series of fixed rules where Parliament has decided, when consolidating with amendments the previous legislation, not to do so.
+They have a different task.
+It is to give effect to what Parliament may reasonably be taken to have intended by identifying, and applying, the relevant principles.
+Mr Cavanagh drew attention to Lord Hoffmanns comment in Lawson, para 37, that the fact that the relationship was rooted and forged in Great Britain because the respondent happened to be British and he was recruited in Great Britain by a British company ought not to be sufficient in itself to take the case out of the general rule.
+Those factors will never be unimportant, but I agree that the starting point needs to be more precisely identified.
+It is that the employment relationship must have a stronger connection with Great Britain than with the foreign country where the employee works.
+The general rule is that the place of employment is decisive.
+But it is not an absolute rule.
+The open ended language of section 94(1) leaves room for some exceptions where the connection with Great Britain is sufficiently strong to show that this can be justified.
+The case of the peripatetic employee who was based in Great Britain is one example.
+The expatriate employee, all of whose services were performed abroad but who had nevertheless very close connections with Great Britain because of the nature and circumstances of employment, is another.
+The reason why an exception can be made in those cases is that the connection between Great Britain and the employment relationship is sufficiently strong to enable it to be presumed that, although they were working abroad, Parliament must have intended that section 94(1) should apply to them.
+The expatriate cases that Lord Hoffmann identified as falling within its scope were referred to by him as exceptional cases: para 36.
+This was because, as he said in para 36, the circumstances would have to be unusual for an employee who works and is based abroad to come within the scope of British labour legislation.
+It will always be a question of fact and degree as to whether the connection is sufficiently strong to overcome the general rule that the place of employment is decisive.
+The case of those who are truly expatriate because they not only work but also live outside Great Britain requires an especially strong connection with Great Britain and British employment law before an exception can be made for them.
+But it does not follow that the connection that must be shown in the case of those who are not truly expatriate, because they were not both working and living overseas, must achieve the high standard that would enable one to say that their case was exceptional.
+The question whether, on given facts, a case falls within the scope of section 94(1) is a question of law, but it is also a question of degree.
+The fact that the commuter has his home in Great Britain, with all the consequences that flow from this for the terms and conditions of his employment, makes the burden in his case of showing that there was a sufficient connection less onerous.
+Mr Cavanagh said that a rigorous standard should be applied, but I would not express the test in those terms.
+The question of law is whether section 94 (1) applies to this particular employment.
+The question of fact is whether the connection between the circumstances of the employment and Great Britain and with British employment law was sufficiently strong to enable it to be said that it would be appropriate for the employee to have a claim for unfair dismissal in Great Britain.
+The respondent's case
+It is true that at the time of his dismissal the respondent was working in Libya and that the operations that were being conducted there and in which he worked were those of a different Halliburton associated company which was incorporated and based in Germany.
+It is true also that the decision to dismiss him was taken by Mr Strachan who was based in Cairo.
+But I would not attach as much importance to these details as I would have done if the company for which the respondent was working in Libya was not another associated Halliburton company.
+The vehicles which a multinational corporation uses to conduct its business across international boundaries depend on a variety of factors which may deflect attention from the reality of the situation in which the employee finds himself.
+As Mr Christie said in the employment tribunal, it is notorious that the employees of one company within the group may waft to another without alteration to their essential function in pursuit of the common corporate purpose: para 53.
+All the other factors point towards Great Britain as the place with which, in comparison with any other, the respondents employment had the closer connection.
+The appellants business was based in Great Britain.
+It was to provide tools, services and personnel to the oil industry.
+That was why it sent the respondent to Libya, even though the actual work itself was in the furtherance of the business of another Halliburton subsidiary or associate company: see the employment tribunals judgment, para 53.
+It chose to treat him as a commuter for this purpose, with a rotational working pattern familiar to workers elsewhere in the oil industry which enables them to spend an equivalent amount of time at home in Great Britain as that spent offshore or overseas.
+In the respondents case this meant that all the benefits for which he would have been eligible had he been working in Great Britain were preserved for him.
+Lady Smith said in the EAT that the employment tribunal was wrong to take account of the proper law of the parties contract and the reassurance given to the respondent by the appellant about the availability to him of UK employment law, as neither of them were relevant.
+The better view, I think, is that, while neither of these things can be regarded as determinative, they are nevertheless relevant.
+Of course, it was not open to the parties to contract in to the jurisdiction of the employment tribunal.
+As Mr Cavanagh put it, the parties cannot alter the statutory reach of section 94(1) by an estoppel based on what they agreed to.
+The question whether the tribunal has jurisdiction will always depend on whether it can be held that Parliament can reasonably be taken to have intended that an employee in the claimants position should have the right to take his claim to an employment tribunal.
+But, as this is a question of fact and degree, factors such as any assurance that the employer may have given to the employee and the way the employment relationship is then handled in practice must play a part in the assessment.
+The assurances that were given in the respondents case were made in response to his understandable concern that his position under British employment law might be compromised by his assignment to Libya.
+The documentation he was given indicated that it was the appellants intention that the relationship should be governed by British employment law.
+This was borne out in practice, as matters relating to the termination of his employment were handled by the appellants human resources department in Aberdeen.
+This all fits into a pattern, which points quite strongly to British employment law as the system with which his employment had the closest connection.
+Mr Cavanagh submitted that the fact that the respondents home was in Great Britain was of no relevance.
+Why, he said, should the place where you are living when you are not working be relevant at all? All that mattered was the place where he was working.
+His place of residence did not matter, and it should be left out of account.
+It is true that his place of work was in Libya and not in Preston.
+But the fact that his home was in Great Britain cannot be dismissed as irrelevant.
+It was the reason why he was given the status of a commuter, with all the benefits that were attached to it which, as he made clear, he did not want to be prejudiced by his assignment.
+Here too the fact that his home was in Preston fits in to a pattern which had a very real bearing on the parties employment relationship.
+As the question is ultimately one of degree, considerable respect must be given to the decision of the employment tribunal as the primary fact finder.
+Mr Christie said in para 54 of his judgment that his conclusion that the balance was in favour of the respondent fell within the band of reasonable responses available to a reasonable chairman of employment tribunals.
+This remark was seen by both Lady Smith in para 36 of her judgment in the EAT and by Lord Osborne in the Extra Division, 2011 SLT 44, para 19 as an indication that he considered the task that he was undertaking as the exercise of a discretion.
+His remark was perhaps not very well chosen, but I do not think that his judgment when read as a whole is open to this criticism.
+The test which he applied was whether there was a substantial connection with Great Britain: see paras 39 and 47.
+It would have been better if he had asked himself whether the connection was sufficiently strong to enable it to be said that Parliament would have regarded it as appropriate for the tribunal to deal with the claim: see para 29, above.
+But I think that it is plain from his reasoning that he would have reached the same conclusion if he had applied that test.
+Lord Osborne said in para 20 of his opinion that the tribunal reached a conclusion that it was entitled to reach and that it was a correct conclusion.
+I agree with that assessment.
+So I too would hold that section 94(1) must be interpreted as applying to the respondents employment, and that the employment tribunal has jurisdiction to hear his claim.
+Conclusion
+I would dismiss the appeal.
+I would also affirm the Extra Divisions
+interlocutor, the effect of which is that the case will be remitted to the employment tribunal to deal with the merits of the respondents claim that he was dismissed unfairly.
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+The appeal raises a short issue of construction under the planning Acts, on which differing views have been expressed by experienced planning judges in the courts below.
+It arises in the context of a planning permission granted by the respondent council for four blocks of student accommodation in proximity to a site used for storage of liquefied petroleum gas (LPG).
+The question, as agreed by counsel for the purposes of the appeal, is: In considering under section 97 of the Town and Country Planning Act 1990 whether it appears to a local planning authority to be expedient to revoke or modify a permission to develop land, is it always open to that local planning authority to have regard to the compensation that it would or might have to pay under section 107? The Court of Appeal by a majority (Longmore and Sullivan LJJ, Pill LJ dissenting) [2011] PTSR 645 decided it in the affirmative.
+Unusually, the court is asked to consider this question, not in the context of a specific decision of the council to revoke the permission, but as an abstract point of construction in connection with a decision which may or may not be made in the future.
+As I understand it, the Court of Appeal has granted permission to appeal on the footing that the point is one of some general importance on which a definitive decision is desirable.
+The parties
+The Wolverhampton City Council (the council) is the council for a metropolitan borough in the West Midlands.
+It is the local planning authority, and also the hazardous substances authority for the relevant area under the Planning (Hazardous Substances) Act 1990 (the PHSA 1990).
+The Health & Safety Executive (the HSE) is a statutory non departmental public body, established under the Health and Safety at Work etc.
+Act 1974.
+It has a general duty under the Act to work with others to secure the health, safety and welfare of people at work, to protect the public against risks to health and safety arising from work activities, and to control dangerous substances.
+The statutory regime for the control of hazards involving dangerous substances includes the Control of Major Accident Hazards Regulations 1999 (SI 1999/743) (made under European Council Directive 96/82/EC (the Council Directive)).
+The HSE together with the Environment Agency is the competent authority under that regime, with responsibility to oversee its operation and to co ordinate the regulation of major hazards.
+As part of that role, the HSE sets acceptable levels for particular classes of risk to the health and safety of the population, measured by the probability of a particular occurrence.
+The HSE's advice in relation to particular development proposals is, in most cases, generated by a risk model known as Planning Advice for Developments near Hazardous Installations (PADHI).
+There is a computer based version of this model, known as PADHI+, which allows local planning authorities to consult and obtain the HSE's advice online by entering various site specific details.
+The distance between the hazardous installation and the proposed development is related to three zones (inner, middle and outer), the inner zone posing the greatest risk.
+The interested party, Victoria Hall Ltd (the developer), is a private limited company whose main business is the provision of student accommodation, nationally and internationally.
+It was represented by counsel in the Court of Appeal, but not in this court.
+Statutory provisions
+The grant of planning permission is governed by section 70 of the Town and Country Planning Act 1990 (the 1990 Act.) Where an application is made to the local planning authority, they may grant permission (conditionally or unconditionally) or refuse permission.
+In dealing with the application they must have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations (s 70(2)).
+Section 97, which is directly relevant to the appeal, provides: Power to revoke or modify planning permission "(1) If it appears to the local planning authority that it is expedient to revoke or modify any permission to develop land granted on an application made under this Part, the authority may by order revoke or modify the permission to such an extent as they consider expedient. (2) In exercising their functions under subsection (1) the authority shall have regard to the development plan and to any other material considerations.
+In relation to building operations, the power to revoke or modify may be exercised at any time before the operations have been completed, but will not affect those operations so far as previously carried out (section 97(3)(4)).
+If there are objections, a revocation order made by a local planning authority is subject to confirmation by the Secretary of State (section 98).
+If the order is confirmed, compensation is payable by the authority for abortive expenditure, and for other loss or damage directly attributable to the revocation or modification (section 107).
+Section 100 gives the Secretary of State a separate power to make an order under section 97.
+Such an order has the same effect as one made by the local planning authority (section 100(2)), with the consequence (inter alia) that the authority, not the Secretary of State, are liable to pay compensation.
+Although not directly relevant to this appeal, parallels have been drawn in argument with the provisions of section 102 (and related sections) for discontinuance orders, that is orders for the discontinuance of any use of land, or for the imposition of conditions on any such use.
+Under section 102(1) a discontinuance order may be made, if: having regard to the development plan and to any other material considerations, it appears to a local planning authority that [such action] is expedient in the interests of the proper planning of their area (including the interests of amenity) .
+Finally, reference should be made to the provisions for hazardous substances consent under the PHSA 1990.
+By section 4, subject to certain limits, the presence of a hazardous substance on, over or under land requires a hazardous substances consent.
+By section 9, consent may be granted by the hazardous substances authority.
+In dealing with an application for consent, the authority is required to have regard to material considerations, which are defined as including in particular the existing and likely future uses of land in the vicinity, and the provisions of the development plan (s 9(2)).
+By section 14 the same authority may make an order revoking or modifying such a consent, if it appears to them, having regard to any material considerations, that it is expedient to revoke or modify it.
+By section 19, compensation is payable in respect of any loss or damage directly attributable to the revocation or modification.
+Background facts
+On 4 August 2008, following an application by the developer, the council granted planning permission for the erection of four blocks (blocks A D) of student accommodation on land between Culwell Street and Lock Street, Wolverhampton.
+Some 95 metres away from the nearest block (Block D), on the other side of a railway line, there is a LPG facility operated by Carvers LPG (Wolverhampton) Ltd. (Carvers).
+LPG is a dangerous substance within the meaning of the Council Directive.
+The site accordingly requires, and has been granted, hazardous substances consent under the PHSA 1990.
+Because of the proximity of the LPG site, the council was required to consult the HSE on the application.
+They did so on line (by PADHI+) and received the following response: The assessment indicates that the risk of harm to people at the proposed Development is such that HSE'S advice is that there are sufficient reasons, on safety grounds, for advising against the granting of planning permission in this case.
+This advice was in due course reported to the planning committee by the officers, with an indication that though not mandatory it should not be overridden without careful consideration.
+What followed is summarised by Sullivan LJ (para 6): Despite this warning, when considering the planning application Wolverhampton failed to consult further with the HSE, failed to obtain its own advice as to the safety implications of permitting a substantial amount of residential accommodation in this location and, despite being obliged to do so, failed to give the HSE advance notice of its intention to grant planning permission for the development, and failed to notify the HSE that it had granted permission.
+The HSE first discovered on 16 December 2008 that planning permission had been granted, over four months after the grant of permission and, since works had commenced prior to the grant of permission, five months after the works had commenced.
+By the time the HSE became aware of the development, work on three of the blocks, A, B and C, was well advanced.
+Work on block D, which was the closest block to the LPG facility, had not commenced.
+Sullivan LJ also described the attempts which were made by the HSE over the following weeks to resolve the issue by agreement with the council and the other interested parties.
+They indicated initially that their preferred option would be to relocate the Carvers installation.
+But they also pointed out that the councils procedural failures had deprived the HSE of the opportunity to ask the Secretary of State to call in the application for planning permission; and they asked the council to remedy this by making a revocation order under section 97, at least to prevent the construction of block D.
+The nature of the discussions between the council and the HSE can be seen from the notes of a meeting on 8 April 2009.
+It was recorded that there was a verbal agreement that building of block D would not be started until market conditions improved.
+The other blocks were almost complete, in preparation for the first students to take up residence at the beginning of the academic year in October 2009.
+The HSE representative identified three options to resolve the problem: (i) revoke the planning permission for blocks in the inner and middle zones; (ii) move Carvers from their site; or (iii) reduce the LPG inventory at the Carvers Site and amend the hazardous substance consent to a lower level. (I take the word amend to be a reference to modification under section 14 of PHSA 1990.)
+The councils representative indicated that no decision had yet been taken by the council on any of the options.
+The first option (revocation) was considered most unlikely because of the potentially high costs of doing so.
+It was noted that any of the options would require compensation, and that there would therefore need to be a dialogue between Carvers and Wolverhampton City Council on how best to achieve a positive outcome.
+The HSE representative emphasised the need for a quick decision by the council, and offered technical support for that purpose.
+He also advised that the HSE would consider further action, such as judicial review, if a satisfactory response were not received.
+Thereafter progress was slow.
+On 18 May the HSE restated its wish to resolve the issue urgently and asked the council to indicate whether it was willing to make a revocation order.
+The councils reply was terse: The Council has now taken some preliminary legal advice and from a careful consideration of all the information available can see no justification for revoking or modifying the planning permission in question Apart from indicating that they were waiting for further information and would keep the HSE informed, they gave no further reasons for this decision, nor any clear indication of the councils view of the problem, or of how, if not by revocation, they proposed to deal with it.
+On 22 June solicitors for the HSE gave the council notice of their intention to seek judicial review both of the grant of planning permission and of the decision not to revoke it.
+They noted that no work had yet started on block D, which was entirely within the inner zone.
+They suggested two courses open to the council: either to resolve on revocation of the permission in respect of block D, or to consent to the quashing of the permission as a whole.
+The HSEs preference was for the latter, because it also had concerns about block C, and would welcome the opportunity to ensure that the whole development could be reconsidered.
+In response the council indicated that, having taken leading counsels advice, and in view of the number of people living in the area, and the scope for further development, it was manifest that the most appropriate course is to relocate the installation, if need be compulsorily.
+The council would be considering this further with its advisers.
+It suggested that the HSE itself might wish to consider such a course.
+The HSEs claim form was filed on 9 July.
+On 14 October 2009 the matter came before Collins J on a rolled up hearing.
+He granted permission to apply for judicial review, but declined to quash either the planning permission or the decision not to revoke.
+Instead he ordered the council to provide a full summary of its reasons for granting planning permission and of the policies taken into account, and made a declaration that the council had acted in breach of the procedural regulations in a number of respects.
+On the issue of revocation, he noted that this was now impossible in respect of blocks A, B and C, and would be in any event inappropriate because of its serious financial implications for the developer (a relevant factor, as held in Vasiliou v Secretary of State for Transport [1991] 2 All ER 77).
+In respect of the HSEs submission that the cost of compensation was not a relevant factor (following Alnwick District Council v Secretary of State for the Environment, Transport and the Regions (2000) 79 P & CR 130), he said: I do not need to decide whether this is correct since the impact on the interested party coupled with the completion of three of the four blocks and the reasonable view that the HSE's failure to take immediate action shows that the risk could not be regarded as immediate entirely justifies a refusal to revoke or modify.
+Certainly, the refusal cannot be regarded as irrational. (para 40)
+The appeal was heard by the Court of Appeal in May 2010.
+Judgment was given on 30 July.
+Sullivan LJ, giving the leading judgment, noted (para 26) the HSEs argument that it had been seeking revocation only in respect of block D, and that in this respect Collins J had proceeded on a false premise.
+Sullivan LJ thought that, whatever confusion there might have been about the HSEs own position until the letter of 22 June 2009, it should before then have become clear to the council that the only practical possibility was the revocation of block D; and that this was an option which they should have considered with care (paras 29 30).
+Their failure to do so meant that their decision of 29 May 2009 not to make a revocation order was unlawful, and they should be ordered to reconsider (para 38).
+On that point the court was unanimous.
+As to whether compensation would be a material issue in that reconsideration (the issue now before this court), the Court of Appeal was divided.
+Longmore LJ agreed with Sullivan LJ that it was capable in law of being a material factor, and ordered the council to reconsider the issue on that basis.
+Pill LJ disagreed.
+As already noted, they granted permission to appeal to this court.
+I shall return to their reasoning below.
+On the material before this court, the position remains that the council has not made a formal decision on whether to make a revocation order in respect of block D. We were told by Mr Griffiths QC on instructions that the council had obtained its own expert advice as to the degree of risk posed by the proximity of the LPG business, and he also gave us some information about the progress of discussions for the relocation of the Carvers business to another site owned by the council.
+However, since that information is not in evidence, and the HSE has not had an opportunity to respond to it, I leave it out of account for the purposes of this judgment.
+A simple view
+I start by looking at the position in general terms, before considering whether there is anything in the particular statute, or the relevant authorities, which requires a different approach.
+In simple terms, the question is whether a public authority, when deciding whether to exercise a discretionary power to achieve a public objective, is entitled to take into account the cost to the public of so doing.
+Posed in that way, the question answers itself.
+As custodian of public funds, the authority not only may, but generally must, have regard to the cost to the public of its actions, at least to the extent of considering in any case whether the cost is proportionate to the aim to be achieved, and taking account of any more economic ways of achieving the same objective.
+Of course, the weight attributable to cost considerations will vary with the context.
+Where, for example, the authority is faced with an imminent threat to public security within its sphere of responsibility, cost could rarely be a valid reason for doing nothing, but could well be relevant to the choice between effective alternatives.
+So much is not only sound administrative practice, but common sense.
+Does section 97 require a different approach? On an ordinary reading, the answer must be no.
+The section requires the authority to satisfy itself that revocation is expedient, and in so doing to have regard to the development plan and other material considerations.
+It is not suggested in this case that the development plan throws any light on this issue.
+The other two expressions are, at least at first sight, capable of encompassing the cost consequences of revocation.
+The word expedient implies no more than that the action should be appropriate in all the circumstances.
+Where one of those circumstances is a potential liability for compensation, it is hard to see why it should be excluded.
+Similarly, at least at first sight, there is nothing in the expression material considerations to exclude cost.
+Material in ordinary language is the same as relevant.
+Where the exercise of the power, in the manner envisaged by the statute, will have both planning and financial consequences, there is no obvious reason to treat either as irrelevant.
+The practical sense of this approach is illustrated by the facts of the present case.
+The safety concerns highlighted by the HSE would have made it hard for the council to justify doing nothing, at least once there was a risk of block D being built.
+But, assuming the need for compulsion, it appears that they had a choice of at least three statutory routes: an order under section 97 of the 1990 Act to prevent the building of block D, an order under section 14 of the PHSA to limit the hazardous substances which could be stored at the LPG site, or a compulsory purchase order to remove the Carvers installation altogether.
+Action under any of these powers would result in a claim for compensation, but not necessarily of the same order.
+The choice between the options would no doubt involve a range of planning and other issues, but it would be curious if comparative cost could not be at least one factor in the overall balance.
+Authorities
+The principal authority relied for the contrary view, which had the support of Pill LJ in the present case, is the judgment of Richards J in the Alnwick District Council case 79 P & CR 130.
+The district council had granted permission for a large superstore, under a misapprehension as to the size of what was proposed, and in contravention (as the inspector found) of national planning policy.
+In the face of the councils objections, the Secretary of State made a revocation order, the compensation for which (estimated at 3 4m) would fall on the council.
+The inspector described the decision as grossly wrong and seriously perverse, and likely to cause significant harm to Alnwicks vitality and viability as a shopping centre.
+He indicated that he regarded the issue of compensation as irrelevant.
+The Secretary of State adopted his reasoning.
+The council applied to the High Court to quash the order.
+The principal argument was that liability for compensation of this order would put the council in severe financial difficulties, and in particular would put at risk a planned development of leisure facilities elsewhere in the district.
+This argument had been touched on only lightly at the inquiry, and seems to have been developed largely by counsel in the High Court.
+The Secretary of State submitted that compensation was irrelevant as a matter of law, but also that, even if it had been relevant, relief should be refused as a matter of discretion, because on the material before the Secretary of State there was no likelihood of it having led to a different decision.
+Richards J accepted both submissions.
+The second, which is not in dispute, is sufficient to support the decision in the case.
+On the first, in view of the importance attached to his reasoning by the appellants, I will quote most of the relevant passage, at pp 142 143, in full: A decision maker will often be entitled, if not required, to take into account as a relevant or material consideration the financial consequences of his decision.
+Consideration of the effects of a decision on others is a normal aspect of the decision making function and there is no difference of principle between financial effects and other effects.
+The observations of Nicholls LJ, in Vasiliou v Secretary of State for Transport [1991] 2 All ER 77 as to the relevance of the adverse effects of a ministerial order were directed to the specific context of an order extinguishing or expropriating an individual's rights but are in my view capable of more general application.
+Nor is the point limited to the effects of a decision on others.
+It also applies to the financial consequences for the decision maker himself.
+Where decisions involve the expenditure of public funds, the decision maker will normally be entitled or required to take into account matters such as the availability of funds and competing demands on those funds.
+All that, however, is at a level of generality.
+Whether a particular consideration is one that a decision maker is entitled or required to take into account in the exercise of a statutory power depends ultimately on the statute conferring that power.
+A statute may restrict the range of permissible considerations either expressly or by implication.
+Whether it does so is to be determined by reference to its provisions and to the statutory purpose.
+In the exercise of their functions under sections 97 and 100 of the 1990 Act with regard to the revocation and modification of planning permissions, local planning authorities and the Secretary of State are required to have regard to "material considerations" (see section 97(2)).
+What is capable of amounting to a material consideration for this purpose must in my view be the same as in relation to the initial determination of planning applications, i.e. the material considerations referred to in sections 70(2) and 54A.
+Although the courts have adopted a flexible approach towards the concept, a consideration must in broad terms be a planning consideration in order to be material for that purpose.
+Any consideration which relates to the use and development of land is capable of being a planning consideration (see Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281, 1294).
+It follows that financial consequences are capable of amounting to a material consideration in so far as they relate to the use and development of land.
+R v Westminster City Council, Ex p Monahan [1990] 1 QB 87 is an example.
+The need for a connection with the use and development of land was helpfully spelled out in the application of that decision in Northumberland County Council v Secretary of State for the Environment (1989) 59 P & CR 468.
+It also follows, however, that in so far as financial consequences do not relate to the use and development of land, they are not capable of amounting to material considerations.
+In my view that is fatal to the general proposition for which [leading counsel on behalf of the council] contends, that the cost to the local authority may be taken into account irrespective of land use consequences.
+I see no warrant for treating cost as a permissible consideration even where it is not a material consideration within the meaning of the legislation.
+It is wholly consonant with the statutory purpose that decisions under sections 97 and 100 should be guided only by planning considerations.
+It cannot have been the legislative intention, in introducing provision for the payment of compensation, that the impact of such payment upon a local planning authority's financial position should condition the exercise of the powers to revoke or modify planning permissions.
+Payment of compensation enters into the picture only after a decision to revoke or modify has been taken.
+Its purpose is simply to ensure that persons interested in the land are compensated for any loss they suffer by reason of the revocation or modification of the permission. (Emphasis added)
+It is to be noted that Richards J accepted as a general proposition that, where a decision involves the expenditure of public funds, the decision maker will normally be entitled or required to take into account matters such as the availability of funds and competing demands on those funds.
+His reasoning for taking a different view in the present context depended (as seen in the emphasised passages) on three steps: i) The meaning of the term material considerations must be consistent throughout the Act, including as between section 70 and section 97. ii) The authorities show that financial considerations unrelated to the use and development of land are not material in relation to the grant or refusal of planning permission.
+They cannot therefore be material in relation to the making of a revocation order. iii) Under the statutory scheme compensation enters the picture only after the order has been made.
+I say at once that I find the third point very difficult to follow.
+The fact that a restaurant bill normally arrives after the meal does not mean that the likely cost of the meal has to be ignored in deciding where and what to eat.
+Similarly, potential liability to compensation cannot be said to be irrelevant merely because it is not fixed and payable at the outset.
+I will return to the other points when considering the appellants arguments in this court.
+It is necessary first to refer to the other main first instance authority, and the judgments of the Court of Appeal in the present case.
+In R (Usk Valley Conservation Group) v Brecon Beacons National Park Authority [2010] 2 P & CR 198 (relating to a discontinuance order under section 102), Ouseley J disagreed with Richards Js interpretation.
+He was willing to accept step (i) of the argument, that the term material considerations required a consistent interpretation, which limited it to planning considerations (para 202); but he thought that the concept of expediency implied a wider approach: 198.
+An expedient decision would, to my mind, necessarily require attention to be paid to the advantages and disadvantages of taking one or other or none of the available steps under section 102.
+These advantages and disadvantages should not be confined to those which the subject of the notice would face; they should be measured against the advantages and disadvantages to the public interest at large, including the costs and effectiveness of the various possibilities.
+The question of whether the cost to the public is worth the gain to the public is, I would have thought, the obvious way of testing expediency.
+At least, it is difficult to see that expediency could be tested without consideration of that factor.
+In the Court of Appeal in the present case, Sullivan LJ thought that the introduction of the word expedient was not of itself sufficient to justify a different approach as between section 70 and section 97 (para 47).
+He also accepted (para 46) that there must be a consistent approach to the meaning of material considerations in the enactments which comprise the planning code, a term which he treated as including the provisions both for the grant of permission (section 70), and those for revocation (section 97) and discontinuance (section 102) (para 45).
+However, as I understand his reasoning, he saw the two expressions as working together.
+First, he highlighted the different decision making process as between section 70 on the one hand, and sections 97 and 102 on the other.
+The authority does not initiate the decision making process under section 70, and a decision to take no action is not an option: para 49.
+By contrast, under section 97 or 102, the authority initiates the decision making process, and, having done so, may decide to take no action because it considers it not expedient to do so.
+In that process it needs to consider the consequences under the Act, and whether action under some other provision would be more appropriate.
+He continued: The 1990 Act must be read as a whole for the purpose of ascertaining Parliaments intention.
+Since Parliament expressly provided that the local planning authorities will be liable to pay compensation if they decide that action should be taken under certain powers conferred by the Act, it must be inferred, in the absence of clear words to the contrary, that Parliament expected that a local planning authority would have regard to its liability to pay compensation under one part of the Act when deciding whether or not to exercise a power under another part of the Act.
+A decision under section 97 is not taken in isolation, it is taken within the statutory framework of the 1990 Act.
+If that statutory framework imposes a liability to pay compensation if a certain course of action is taken, there is no sensible reason why that liability should be ignored (in the absence of an express instruction to do so) when a decision is reached under the Act as to whether that action should be taken. (para 50)
+Longmore LJ agreed with Sullivan LJ, partly because of the differences between section 70 and section 97, but also because he considered brightline rules to be much more troublesome in public law than in private law: The view that the fact and the amount of compensation can never be taken into account by a planning authority has, to my mind, an inappropriately absolute ring to it.
+A private pocket may be required to pay up although the heavens fall around it, but such a principle can be awkward where the public purse is involved and public authorities have budgets within the limits of which they must, if possible, keep. (para 66)
+He added that a planning authority would not be entitled to refuse to modify or revoke a planning permission by invoking a vague concept of cost to the public purse: They would have to say in terms what the amount of compensation is likely to be and precisely why it is expedient for that sum not to be paid in circumstances in which modification or revocation might otherwise be appropriate.
+That is unlikely to be an easy or straightforward exercise. (para 67)
+Pill LJ took a different view: I agree with Richards J in the Alnwick case that what is capable of amounting to a material consideration for the purposes of section 97 must be the same as in relation to the determination of planning applications under section 70.
+Its use in a context in which compensation may follow from a decision does not affect what is comprehended by the term "material considerations", which are planning considerations related to the character, use or development of the land. (para 76)
+He noted, but was unimpressed by, the argument (reflected in the judgment of Sullivan LJ at para 53) that, when the original version of section 102 was enacted in 1947, Parliament cannot have intended financial considerations to be ignored, since that would have led to a spate of expensive discontinuance orders to put right the legacy of numerous inappropriately sited uses and buildings: I do not accept that analysis.
+The consistent theme in the legislation has been that planning decisions should be made in accordance with the development plan and any other material considerations.
+The 1947 Act introduced the concept of the development plan which became the primary planning document for the local planning authority's area.
+A good environment and development were to be achieved by means of a development plan, or a series of development plans.
+It was not contemplated in 1947 that England (and Wales) would be transformed overnight into Blake's Jerusalem.
+The route to progress was through the new development plans and not through extensive use of discontinuance orders. (para 87)
+The introduction of the word expedient made no difference: The word expedient must be read in context: is it expedient having regard to the development plan and to any other material considerations? The word permits latitude in an evaluation but the evaluation must be based on matters lawfully taken into account, in my view considerations relating to the character, use or development of the land. (para 91)
+From a practical point of view, he saw a risk that, if undue weight were given to financial considerations, the careful procedures normally followed to ensure that decisions inappropriate on planning grounds are not taken will operate less effectively, and a deterrent to facile decision making would be removed. (para 107)
+The appellants arguments
+Mr Coppel QC, for the HSE, has helpfully grouped his submissions under four main heads:
+(1) Consistency
+In his printed case, Mr Coppel went to some lengths to counter the various elements in Ouseley Js detailed reasoning in Usk.
+However, the key points, and those most directly relevant to the majoritys reasoning in this case, can I think be summarised as follows: i) There is a presumption that words are used with a consistent meaning throughout a statute.
+There is no good reason to depart from that presumption in this case. ii) The meaning of the phrase material considerations in the planning Acts is well established.
+It does not include financial considerations, except where they have planning consequences. iii) Consistent with that principle, it is axiomatic that a planning permission cannot be bought and sold. iv) The majority were right to accept in principle that the expression material considerations should be given the same meaning throughout the planning code. v) They were wrong to hold in respect of section 97 that either the nature of the decision making process, or the inclusion of the concept of expediency, altered the range of factors to be taken into account.
+That term gave the decision maker a wide latitude when evaluating the development plan and . other material considerations; but it did not widen the range of matters to which the authority could properly have regard when carrying out that evaluation.
+(2) Effective judicial supervision
+The majoritys interpretation would deprive the court of any effective power to control the exercise of the discretion under section 97.
+The word expedient has been interpreted as giving the decision maker a wide latitude, which allows little room for intervention by the courts.
+Further, the courts are reluctant to interfere with decisions involving allocation of limited resources, or to substitute their own views of relative priorities.
+If material considerations include the financial impact on the authority, a case for revocation, however compelling on planning grounds, could lawfully be overridden by other demands on limited resources.
+The authoritys functions under the planning Acts, including those relating to hazardous substances, should not capable of being traded against its other functions.
+(3) Self interest
+The corollary of the proposition that a planning permission cannot be bought or sold is that the decision to revoke or modify a permission cannot be devalued by consideration of its cost to the authority.
+This lessens the independence of the local planning authority, and is alien to the integrity of the planning system.
+The authority should not be tempted to deviate from the best planning decision by financial self interest.
+(4) The importance of the development plan
+Mr Coppel echoes Pill LJ (para 87) in emphasising the consistent theme of the legislation, that planning decisions should start from the development plan.
+If material considerations extend to non planning considerations, the importance of the development plan is weakened, and its paramountcy cannot be secured against the wildcard of financial considerations (printed case, paragraph 78).
+Discussion
+In considering these arguments, and the reasoning of the courts below, I hope I will be forgiven for going back to the simple approach with which I started.
+As I said then, and as Richards J accepted, general principles would normally dictate that a public authority should take into account the financial consequences for the public purse of its decisions.
+I also said that, at least at first sight, I could find nothing in section 97 which requires it to be treated as an exception to those principles.
+Nothing I have heard or read in this case has led me to change that view.
+The principal argument to the opposite effect is the appeal to consistency.
+I accept of course the ordinary presumption that Parliament is taken as using the same words in the same sense.
+I am aware also that in planning law the apparently innocent expression material considerations has acquired an impressive overburden of case law going back more than 40 years.
+However, none of the authorities before Alnwick were directed to the provisions related to revocation or discontinuance.
+Sufficient consistency is given to the expression if the word material considerations is treated as it is elsewhere in administrative law: that is, as meaning considerations material (or relevant) to the exercise of the particular power, in its statutory context and for the purposes for which it was granted.
+So read, the Court of Appeals interpretation creates no inconsistency between section 70 and section 97.
+The meaning is the same, but the statutory context is different.
+Under section 70 the planning authority has a duty to act, and it has a limited choice.
+It must either grant or refuse permission.
+Its decision must be governed by considerations material to that limited choice.
+Further, the decision normally has no direct cost consequences for the authority (unless exceptionally it has a direct financial interest in the development, when other constraints come into play).
+Under section 97, by contrast, the authority has no obligation to do anything at all; it has a discretion whether to act, and if so how.
+Secondly, if it does decide to act, it must bear the financial consequences, in the form of compensation.
+No doubt under section 70, planning permission cannot be bought or sold.
+But section 97 creates a specific statutory power to buy back a permission previously granted.
+Cost, or value for money, is naturally relevant to the purchasers consideration.
+To speak of the self interest of the authority in this context is unhelpful.
+A public authority has no self interest distinct from that of the public which it serves.
+The same result can be achieved even on a narrower interpretation of the expression material considerations.
+In other words, planning considerations, including the development plan, are the starting point.
+Thus the primacy of the plan, if it has anything relevant to say on the issue, is not in doubt, but it may need to give way to other factors, including practicalities.
+A decision to act under section 97 must be motivated by planning considerations, and directed to a planning objective.
+But the converse does not follow.
+Inaction is also an option.
+In exercising its choice not to act under section 97, or in choosing between that and other means of achieving its planning objective, the authority is to be guided by what is expedient.
+No principle of consistency requires that process to be confined to planning considerations, or to exclude cost.
+This approach to the section does not exclude effective judicial supervision when necessary.
+It is true that the word expedient normally implies a wide discretion reviewable only on conventional public law grounds.
+However, as already noted, its scope in practice depends on the circumstances.
+A public authority, faced with a serious threat to public safety within its sphere of responsibility, would find it difficult to defend the rationality of a refusal to act, if the only reason were other demands on its budget.
+In any event, the Act contains its own remedy.
+If the authority fails to act, the Secretary of State may be asked to make a revocation order (as happened in Alnwick), leaving the planning authority to pick up the bill.
+I see no reason to doubt Richards Js actual conclusion in Alnwick.
+On the facts and arguments as presented to the Secretary of State, it is difficult to see how his decision could have been different.
+However, Richards J, with respect, took too narrow a view of the law.
+Had there been more substantial evidence that the order would leave the authority in serious financial difficulties, I see no reason why the Secretary of State should have been obliged to leave it out of account, at least to the extent of considering whether a financial contribution might have been available from central or other sources.
+Finally I should comment briefly on the point made at the end of Longmore LJs judgment.
+I agree with his instinctive reaction against brightline rules governing the exercise of discretionary powers in public law.
+I have more difficulty with his comment on the level of precision required to justify refusal to make an order.
+Mr Coppel made a similar point, suggesting that authorities might find it difficult in practice to arrive at a clear estimate of the likely level of compensation, particularly in the absence of co operation from the landowner.
+I do not see these as practical issues.
+It is not possible in the abstract to say what kind of information, or what degree of precision, may be required by, or available to, the authority when making a decision of this kind.
+It will depend on the circumstances.
+That is neither unusual nor a cause for concern.
+The same issues may arise, for example, whenever an authority is considering a major compulsory purchase project.
+It will need at the planning stage to form a general view of the overall cost, including the cost of compensation, and of the resources available to meet it.
+Initially, this view will need to be based largely on the advice and estimates of its expert advisers, the precision and certainty of which will depend on the timing and subject matter.
+That uncertainty is not a reason for not conducting the exercise, still less for leaving cost considerations out of account altogether.
+Conclusion
+For these reasons, which essentially follow those of the majority of the Court of Appeal, I would dismiss the appeal.
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+This case raises difficult issues about the scope for justifying direct discrimination on the ground of age and in particular a mandatory contractual retirement age.
+It arises under the Employment Equality (Age) Regulations 2006 (SI 2006/1031) (the Age Regulations), the measure by which the United Kingdom transposed Council Directive 2000/78/EC, establishing a general framework for equal treatment in employment and occupation (the Directive), into UK law in respect of age discrimination.
+But the same issues arise under the Equality Act 2010, which has now replaced those Regulations.
+Age is a relative newcomer to the list of characteristics protected against discrimination.
+Laws against discrimination are designed to secure equal treatment for people who are seen by society to be in essentially the same situation.
+The Aristotelian injunction that like cases be treated alike depends upon which characteristics are seen as relevant for the particular purpose.
+For most of history it was assumed that the differences between men and women were relevant for a whole host of purposes.
+Now the general rule is that they are not.
+But as Advocate General Sharpston commented in her Opinion in Bartsch v Bosch und Siemens Hausgerte (BSH) Altersfrsorge GmbH Case C 427/06 [2008] ECR I 7245, at [47], until comparatively recently differentiating on the basis of age was considered obviously relevant for the purpose of termination of employment.
+And it is still considered that age may be a relevant consideration for many more purposes than is so with the other protected characteristics.
+Hence recital 25 to the Directive, after recognising that the prohibition of age discrimination is an essential part of meeting the aims set out in the Employment Guidelines and encouraging diversity in the workforce, continued: However, differences in treatment in connection with age may be justified under certain circumstances and therefore require specific provisions which may vary in accordance with the situation in Member States.
+It is therefore essential to distinguish between differences in treatment which are justified, in particular by legitimate employment policy, labour market and vocational training objectives, and discrimination which must be prohibited.
+The reasons why age may be relevant in more circumstances than the other characteristics may seem obvious, at least where this has to do with the comparative capabilities of people of different ages.
+A younger person may not have the same training and experience as an older person.
+An older person may have lost the mental or physical strength which once she had.
+But it will be seen from recital 25 above that the European legislators considered that age discrimination might be justified by factors which had nothing to do with the characteristics of the individual but had to do with broader social and economic policy.
+These factors would not justify direct discrimination on the ground of any of the other protected characteristics, so why should age be different?
+The answer must be that age is different.
+As Ms Rose put it on behalf of the Secretary of State, age is not binary in nature (man or woman, black or white, gay or straight) but a continuum which changes over time.
+As Lord Walker pointed out in R (Carson and Reynolds) v Secretary of State for Work and Pensions [2006] 1 AC 173, at [60], Every human being starts life as a tiny infant, and none of us can do anything to stop the passage of the years.
+This means that younger people will eventually benefit from a provision which favours older employees, such as an incremental pay scale; but older employees will already have benefitted from a provision which favours younger people, such as a mandatory retirement age.
+The critical issues in this case are what sort of policy considerations can justify such discrimination, who decides upon them, and how they are to be applied to any individual person.
+I turn, therefore, to the facts of this case.
+The facts
+Mr Seldon was born on 15 January 1941, qualified as a solicitor in 1969, joined Clarkson Wright and Jakes, the respondent firm, in 1971 and became an equity partner in 1972.
+He became the senior partner in 1989.
+He was also managing partner from 1989 to 1993.
+He reached the age of 65 on 15 January 2006.
+There had been a succession of partnership deeds over that period but all had provided for the mandatory retirement of partners at the end of the year in which they reached the age of 65.
+Clause 22 of the deed adopted in 2005 provided: Any partner who attains the age of 65 years shall retire from the Partnership on 31st day of December next following his attainment of such age (or on such later date as the Partners shall from time to time and for the time being determine.) The deed did not make any provision for the removal of underperforming partners or for the reduction of their profit share to reflect underperformance.
+The partners preferred to address these matters through discussion and agreement.
+As he approached his 65th birthday, Mr Seldon realised that for financial reasons he would need to go on working in some capacity for another three years.
+Early in 2006 he made a series of proposals to his partners with a view to continuing to work as a consultant or salaried employee for another three years.
+These proposals were rejected by the other partners in May 2006 on the basis that there was no sufficient business case, but an ex gratia payment of 30,000 was offered as a goodwill gesture to reflect his long service with the firm.
+The Age Regulations came into force on 1 October 2006.
+Mr Seldon told the firm that he was seeking legal advice on the Regulations and the offer of an ex gratia payment was withdrawn.
+Mr Seldon automatically ceased to be a partner in accordance with the partnership deed on 31 December 2006.
+He began these proceedings in March 2007, alleging that his expulsion from the firm was an act of direct age discrimination and the withdrawal of the offer of the ex gratia payment was an act of victimisation.
+The firm claimed that his treatment was justified.
+They put forward six legitimate aims: 29.1 ensuring that associates are given the opportunity of partnership after a reasonable period as an associate, thereby ensuring that associates do not leave the firm; 29.2 ensuring that there is a turnover of partners such that any partner can expect to become Senior Partner in due course; 29.3 facilitating the planning of the partnership and workforce across individual departments by having a realistic long term expectation as to when vacancies will arise; 29.4 limiting the need to expel partners by way of performance management, thus contributing to a congenial and supportive culture in the Respondent firm; 29.5 enabling and encouraging employees and partners to make adequate financial provision for retirement; 29.6 protecting the partnership model of the Respondent.
+If equity partners could not be forced to retire at 65, but employees (including salaried partners) could be, it would be preferable to keep lawyers at the Respondent as employees or salaried partners rather than equity partners.
+It was made clear that the firm was not relying on the personal characteristics or any poor performance of Mr Seldon, nor were they relying on the structure of the wider market for legal services, but simply upon their own circumstances.
+The Employment Tribunal (ET) accepted that the firm did have the first, third and fourth of the claimed aims and that they were legitimate.
+Retention of associates was a legitimate aim for a firm with a strategy for growth and the preservation of a reputation for the quality of its legal services (ET [51.5]).
+The short and long term planning of the requirement for professional staff was facilitated by solicitors having, among other things, an expectation of when vacancies within the partnership would arise (ET [53.4]).
+The lack of a power to expel partners for under performance was capable of contributing to the creation of a congenial and supportive culture among the partners (ET [54.8].
+The tribunal were not persuaded that the firm actually had the second, fifth and sixth of the claimed aims: enabling all partners who stayed the course to become senior partner (ET [52.4]); encouraging partners to make financial provision for their retirement (ET [55.5]); or protecting the partnership model (ET [56.3]).
+The ET also accepted that compulsory retirement was an appropriate means of achieving the firms legitimate aims of staff retention, workforce planning and allowing an older and less capable partner to leave without the need to justify his departure and damage his dignity.
+The first two could not be achieved in any other way and introducing performance management would be difficult, uncertain and demeaning, so there was no non discriminatory alternative to the third.
+Having balanced the needs of the firm against the impact of the rule upon the partners, the ET concluded that it was a proportionate means of achieving a congenial and supportive culture and encouraging professional staff to remain with the firm (ET [67]).
+The discrimination claim therefore failed but the victimisation claim succeeded.
+The ET was not asked to consider whether any of those aims could be achieved by a different retirement age.
+The Employment Appeal Tribunal [2009] IRLR 267 appears to have accepted that the aims of staff retention and workforce planning could be met by any fixed retirement age.
+But there was no evidential basis for the assumption that performance would drop off at around the age of 65, and thus for choosing that age in order to avoid performance management and promote collegiality (EAT [77, 78]).
+As the EAT could not be sure what decision the Tribunal would have reached had it assessed the justification by reference only to the other two objectives, the case was remitted to the Tribunal to consider the question afresh (EAT [81]).
+Mr Seldon appealed to the Court of Appeal, where the principal issues were the same as those before this Court.
+The appeal was dismissed: [2010] EWCA Civ 899, [2011] ICR 60.
+The issues
+The issues before this Court, as agreed by the parties, are three: (1) whether any or all of the three aims of the retirement clause identified by the ET were capable of being legitimate aims for the purpose of justifying direct age discrimination; (2) whether the firm has not only to justify the retirement clause generally but also their application of it in the individual case; and (3) whether the ET was right to conclude that relying on the clause in this case was a proportionate means of achieving any or all of the identified aims.
+Both Mr Seldon and Age UK invite the Court to consider these issues having it firmly in mind that the purpose of all anti discrimination legislation is to address the mismatch between reality and past assumptions or stereotypes.
+In the context of age discrimination these assumptions have usually concerned age as a proxy for continuing competence or capability or financial security or intentions about work.
+These assumptions no longer hold good (if they ever did) in times of increasing longevity, where there are benefits both to individuals and to the wider society if people continue to work for as long as they can.
+Put simply, the younger generations need the older ones to continue to be self supporting for as long as possible.
+So we should put such stereotypical assumptions out of our minds.
+The legislation
+Article 1 of the Directive proclaims that its purpose is to: lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.
+Article 2 defines the concept of discrimination thus: 1.
+For the purposes of this Directive, the 'principle of equal treatment' shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in article 1. 2.
+For the purposes of paragraph 1: (a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in article 1; (b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having . a particular age . at a particular disadvantage compared with other persons unless: (i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, .
+Thus it can be seen that the possibility of justification is built into the very concept of indirect discrimination in a way which is familiar from the prohibition of discrimination on other grounds.
+The possibility of justification of direct discrimination is not built into the concept itself, but has to be found elsewhere.
+Article 2(5) provides the familiar general exception that: This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.
+Article 4(1) makes the familiar general exception for genuine occupational requirements: .
+Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.
+Both of these exceptions feature in some of the case law of the European Court of Justice but they have not featured in this case.
+We are concerned with article 6, which makes special provision for the justification of differences of treatment on grounds of age.
+Only article 6(1) is relevant to this case: 1.
+Notwithstanding article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.
+Such differences of treatment may include, among others: (a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection; (b) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment; (c) the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.
+Article 6 contemplates provision being made by the Member States, within the context of national law, but article 18 contemplates that alternatively they may entrust the social partners, at their joint request, with the implementation of this Directive as regards provisions concerning collective agreements.
+This has no direct relevance in the United Kingdom where collective agreements are not legally enforceable, but it serves to explain why all the cases before the European Court of Justice have concerned the provisions either of national law or of collective agreements.
+The United Kingdom has implemented the Directive through the 2006 Age Regulations.
+Principally relevant is regulation 3, which defines age discrimination: (1) For the purposes of these Regulations, a person (A) discriminates against another person (B) if (a) on grounds of B's age, A treats B less favourably than he treats or would treat other persons, or (b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but (i) which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and (ii) which puts B at that disadvantage, and A cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim. (2) A comparison of Bs case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other. (3) In this regulation (a) age group means a group of persons defined by reference to age, whether by reference to a particular age or a range of ages; and .
+Also relevant is regulation 17, which makes unlawful certain acts of discrimination by partnerships: (1) It is unlawful for a firm, in relation to a position as partner in the firm, to discriminate against a person . (d) in a case where the person already holds that position (i) in the way they afford him access to any benefits or by refusing to afford, or deliberately not affording, him access to them; or (ii) by expelling him from that position, or subjecting him to any other detriment." It is not in dispute that enforcing a retirement age would be unlawful within regulation 17 if it amounts to unjustified discrimination within regulation 3.
+Although it did not apply to partners, it is also relevant to note that at the material time, regulation 30 provided for a designated retirement age for employees: (1) This regulation applies in relation to an employee within the meaning of section 230(1) of the [Employment Rights Act 1996], a person in Crown employment, a relevant member of the House of Commons staff, and a relevant member of the House of Lords staff. (2) Nothing in Part 2 or 3 shall render unlawful the dismissal of a person to whom this regulation applies at or over the age of 65 where the reason for the dismissal is retirement.
+Regulation 30 did not preclude an employer from having an earlier retirement age, but it would have to be justified under regulation 3.
+Nor did it require an employer to retire an employee at that age.
+It simply meant that an employer could do so without having to justify it under regulation 3.
+By regulation 47 and Schedule 6 to the Regulations, an employer who intended to retire an employee on a particular date had to give the employee between six and 12 months notice of that intention; the employee had a statutory right to request not to retire on that date and to continue working either indefinitely or for a stated period; the employer had then to take the request seriously, meet with the employee to discuss it, and give the employee a right of appeal if it was turned down.
+The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 (SI 2011/1069) phase out the designated retirement age in regulation 30, so that (at the latest from October 2012) there is no longer any self justifying retirement age for employees.
+Employees will therefore be in the same position as partners, to whom regulation 30 has never applied.
+The principles governing the approach to the justification of compulsory retirement ages are therefore relevant to a much larger section of the working population than they were when these proceedings were begun.
+This particular retirement has of course to be considered as at the date when it took place, on 31 December 2006.
+Legitimate aims
+The principal case advanced on behalf of Mr Seldon is that regulation 3 is inconsistent with the Directive, for two inter linked reasons.
+The first is that it combines the justification of direct and indirect discrimination in a single familiar phrase: and A cannot show the treatment or, as the case may be, the provision, criterion or practice to be a proportionate means of achieving a legitimate aim.
+The Directive, on the other hand, draws a careful distinction.
+Article 2 prohibits all direct discrimination and all indirect discrimination where the provision etc cannot be justified.
+Article 6 contains a special rule for age discrimination, which although literally applying to both direct and indirect discrimination, is most likely to apply to direct discrimination.
+Regulation 3 has impermissibly elided the two types of justification.
+The second reason is that article 6 contemplates that the justifications for direct age discrimination should be the broad social and economic policy objectives of the state (or, elsewhere in Europe, the social partners) and not the individual business needs of particular employers or partnerships.
+This point was most clearly articulated in reply.
+The problem is that the social policy aims may conflict: there is the need to get young people into the workforce and there is the need to enable older people to continue working for as long as they are able and wish to do so.
+Only the state (or the social partners) can make the choice between these conflicting aims and that is clearly what is contemplated by article 6.
+The respondent firm points out that regulation 3 was held by Blake J to be a proper implementation of the Directive in R (Age UK) v Secretary of State for Business, Innovation and Skills (Equality and Human Rights Commission and another intervening) [2009] EWHC 2336 (Admin), [2010] ICR 260 (Age UK) after a reference to the Luxembourg Court.
+And the jurisprudence has made plain that aims analogous to those found in fact to be the aims of the firm are capable of being legitimate aims in this context.
+The Secretary of State accepts that only certain kinds of aim are capable of justifying direct age discrimination and that the apparently broad terms of regulation 3 must be read down accordingly.
+The distinction drawn in the evolving case law of the European Court of Justice/Court of Justice of the European Union (Luxembourg) is between aims relating to employment policy, the labour market or vocational training, which are legitimate, and purely individual reasons particular to the employers situation, such as cost reduction or improving competitiveness, which in general are not.
+It is necessary, therefore, to turn to the developing Luxembourg jurisprudence, coupled with its application to these Regulations in the Age UK case.
+It is helpful to do so chronologically.
+The jurisprudence
+Age Concern England (which later became Age UK) brought its challenge to the Regulations in July 2006, just after they had been made.
+Their principal target was the designated retirement age in regulation 30, but they also attacked regulation 3 on the ground that it was necessary for the state to spell out the circumstances in which age discrimination might be justified.
+At that stage it was not clear whether the Directive covered retirement ages at all.
+Recital 14 states that the Directive shall be without prejudice to national provisions laying down retirement ages.
+In July 2007, therefore, the administrative court referred five questions to Luxembourg, the first three of which concerned whether the Directive did cover retirement ages, the fourth asked whether article 6 required the state to specify the kinds of differences in treatment on grounds of age which might be justified, and the last asked whether there was any significant difference between the test in article 2(2) and the test in article 6(1).
+In October 2007, the Grand Chamber in Luxembourg gave judgment in Flix Palacios de la Villa v Cortefiel Servicios SA, Case C 411/05, [2009] ICR 1111.
+Spain had legislated for compulsory retirement when it wanted to encourage recruitment; then abolished it when economic circumstances improved and it wanted to encourage people to stay in work; and then reintroduced it by allowing collective agreements to prescribe retirement ages, provided that the worker had qualified for a retirement pension.
+The Court held that, despite recital 14, requiring retirement at a particular age is direct age discrimination within the meaning of article 2(1) and 2(2)(a) and has therefore to be justified.
+But this did not preclude national legislation allowing for this, even if the social policy aims were not spelled out in the legislation, as long as it could be decided from the context and other sources what those aims were.
+The encouragement of recruitment was a legitimate aim.
+The means employed had still to be both appropriate and necessary, although member states (and where appropriate social partners) enjoyed a broad discretion in the choice both of the aims and of the means to pursue them.
+The measure in question did not unduly prejudice the legitimate claims of the workers because it was based, not only on a specific age, but also on having qualified for a pension.
+Not surprisingly, therefore, when the Third Chamber (with Judge Lindh as juge rapporteur) came to decide the Age Concern reference, in R (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform, Case C 388/07 [2009] ICR 1080 (Age Concern), it held that member states were not required to draw up a list of differences in treatment which might be justified by a legitimate aim [43].
+Lack of precision as to the aims which might be considered legitimate did not automatically preclude justification, although it was necessary to be able to identify the aim in order to review whether it was legitimate and the means of achieving it were appropriate and necessary [44, 45].
+However, at [46], much relied upon on behalf of Mr Seldon: It is apparent from article 6(1) of Directive 2000/78 that the aims which may be considered legitimate within the meaning of that provision are social policy objectives, such as those related to employment policy, the labour market or vocational training.
+By their public interest nature, those legitimate aims are distinguishable from purely individual reasons particular to the employers situation, such as cost reduction or improving competitiveness, although it cannot be ruled out that a national rule may recognise, in the pursuit of those legitimate aims, a certain degree of flexibility for employers.
+As to the fifth question, as the dispute was about the retirement age provisions, it was not necessary to interpret article 2(2)(b) which was concerned with indirect discrimination [63, 64].
+But the Court did observe that the scope of article 2(2)(b) and article 6(1) is not identical [58].
+In another passage at [65], also much relied upon on behalf of Mr Seldon, it pointed out that: . it is important to note that [article 6(1)] is addressed to the member states and imposes on them, notwithstanding their broad discretion in matters of social policy, the burden of establishing to a high standard of proof the legitimacy of the aim pursued.
+Before Age UK came back before the administrative court, the Third Chamber (again with Judge Lindh as juge rapporteur) decided the case of David Htter v Technische Universitt Graz, Case C 88/08 [2009] All ER (EC) 1129.
+The law governing public service stipulated that service before the age of 18 was not to be taken into account in determining the pay grade.
+This discriminated against those who had undertaken apprenticeships in the public sector compared with those who had stayed in general education.
+The aims of not discouraging people to stay in secondary education, of not making apprenticeship costly for the public sector, and of promoting the integration of young apprentices into the labour market (see [16]) were social policy aims of the kind which could be justification under article 6(1) [43].
+But those aims were contradictory [46] and the law was not appropriate to achieve them [50].
+This case therefore illustrates that it is not enough for the aims of a measure to be legitimate: the measure must still be carefully scrutinised to ensure that it is both appropriate to meeting those aims and a proportionate means of doing so.
+The Grand Chamber (again with Judge Lindh as juge rapporteur) decided three cases in January 2010, after Advocate General Bot had given his opinions in July and September 2009.
+Petersen v Berufungsausschuss fr Zahnrzte fr den Bezirk Westfalen Lippe, Case C 341/08, [2010] 2 CMLR 830 concerned a law which prohibited practice as a panel dentist after reaching the age of 68.
+Both protecting the health of patients and controlling public health expenditure were legitimate objectives under the exception in article 2(5) for measures necessary . for the protection of health.
+Prohibiting practice as a panel dentist but not private practice over the age of 68 was inconsistent with the former aim but not inconsistent with the latter [63, 64].
+The other possible aim, of sharing out employment opportunities between the generations, could be regarded as an employment policy measure under article 6(1) [68].
+It might be necessary to impose such an age limit where there were too many panel dentists or a latent risk of such [73, 77].
+Having given that guidance, the court repeated that it was for the national court to identify the aim which was actually being pursued by the measure [78].
+Wolf v Stadt Frankfurt am Main, Case C 229/08 [2010] 2 CMLR 849 concerned a regulation of the Land Hessen setting an age limit of 30 for recruitment as a firefighter.
+Although the referring court had asked about justification under article 6(1), the Luxembourg court considered that it could be justified under article 4(1), because the physical capabilities required for the job were related to age.
+Kckdeveci v Swedex GmbH & Co KG, Case C 555/07, [2011] 2 CMLR 703 was about a law which calculated the length of notice to which employees were entitled by reference to their length of service but disregarding any period of service below the age of 25.
+The aim of facilitating the recruitment of young people, who could react more easily to the loss of their jobs, by increasing the flexibility of personnel management did belong to employment and labour market policy within the meaning of article 6(1) [35, 36]; but the law was not appropriate to that aim because it applied to all employees who joined before 25 irrespective of their age at dismissal [40].
+Nor was it appropriate to the aim of strengthening the protection of workers according to their length of service [41].
+It is worth noting that Advocate General Bot had found it difficult to accept that the flexibility granted to employers could be an aim in itself, because the Court in Age Concern had made it clear that legitimate objectives are of a public interest nature [AG44 49].
+The Court did not expressly endorse this, but the aim it was considering was more than mere flexibility it was flexibility designed to encourage the recruitment of young people.
+When Blake J came to decide Age UK in September 2009, he had the decisions in Palacios de la Villa, Age Concern, and Htter, coupled with the Advocate Generals opinion in Kckdeveci, to guide him in deciding whether regulations 3 and 30 were compatible with the Directive.
+Clearly, a regulation in such general terms as regulation 3 was not precluded, provided that it could be justified.
+He concluded that the Governments aim in promoting the regulations was to preserve the confidence and integrity of the labour market and that this was a legitimate aim for the purpose of article 6(1).
+In the context of regulation 3 he pointed out that the private employer is not allowed the wider margin of discretion in the application of the regulation that the state is [92] and that there was a clear distinction between the government as a public body being concerned about the social cost to competitiveness of UK employment in the early phase of implementing the new principles and policies of the Directive, and individual business saying it is cheaper to discriminate than to address the issues that the Directive requires to be addressed [93].
+In the context of regulation 30, he concluded that while a designated retirement age could be justified, it was harder to justify adopting the age of 65.
+Had this been done for the first time in 2009 or there was no indication of an early review, he would have concluded that it was not proportionate [128].
+As things were in 2006, however, it was not beyond the competence of government [129].
+But he correctly predicted that the age would not survive the review [130].
+As we have seen, of course, the whole concept of a designated retirement age has not survived.
+In October 2010 the Grand Chamber (again with Judge Lindh as juge rapporteur) decided two more age discrimination cases.
+Rosenbladt v Oellerking GmbH, Case C 45/09, [2011] CMLR 1011, is much relied upon by the respondent firm and the Secretary of State.
+The dispute was about a clause in the collective agreement for employees in the commercial cleaning sector (RTV) which provided for automatic termination when an employee became entitled to a retirement pension and at the latest at the end of the month when she reached 65.
+Para 10.5 of the General Law on Equal Treatment (AGG) listed agreements providing for automatic termination on reaching the age when an employee might claim an old age pension among the examples of differences in treatment which might be justified if necessary and appropriate for a legitimate aim.
+The Court held that the aims of sharing employment between the generations, making it easier for younger workers to find work, particularly in a time of chronic unemployment, while protecting the rights of older workers whose pensions serve as replacement income, and not requiring employers to dismiss them on grounds of incapacity, which may be humiliating [43] were in principle capable of objectively and reasonably justifying a difference in treatment on grounds of age [45].
+Authorising clauses like this could not generally be regarded as prejudicing the legitimate interests of the workers concerned [47].
+It is based not only on age but also on entitlement to a replacement income [48].
+Also, unlike dismissal or resignation, it has its basis in an agreement.
+That allows not only employees and employers, by means of individual agreements, but also the social partners, by means of collective agreements and therefore with considerable flexibility to opt for application of that mechanism so that due account may be taken not only of the overall situation in the labour market concerned, but also of the specific features of the jobs in question (Palacios de la Villa, [74]). [49] So article 6(1) did not preclude a measure such as paragraph 10.5 of the national law; but the collective agreement implementing it must itself pursue a legitimate aim in an appropriate and necessary manner [53].
+The clause offered stability of employment and the promise of foreseeable retirement while offering employers a certain flexibility in the management of their staff, thus reflecting a balance between diverging but legitimate interests, against a complex background of employment relationships closely linked to political choices in the area of retirement and employment [68].
+So it was not unreasonable for social partners to regard the clause as appropriate [69].
+But was it necessary, given the significant financial hardship caused to workers in the commercial cleaning sector, where poorly paid part time employment is typical [71]? Were there less onerous measures? People who had reached retirement age could continue to work, and must not be discriminated against on grounds of age in finding work [74], so they were not forced to withdraw from the labour market [75].
+So the measure was not precluded.
+There is no suggestion that its actual application to Frau Rosenbladt, who needed to carry on working because her pension was so small, had also to be justified.
+In contrast, in Ingenirforeningen i Danmark v Region Syddanmark, Case C 499/08 [2011] 1 CMLR 1140, the Grand Chamber (again with Judge Lindh as juge rapporteur) held that a Danish law on severance allowances, which did not apply to people dismissed when they had qualified for a retirement pension, was not justified.
+The general (and legitimate) aim of the severance allowances was to facilitate the move to new employment of people who might find it difficult to find new employment because of the length of time they had been with their old employer.
+Excluding people who had qualified for a pension and who actually intended to retire was not inappropriate [34, 35].
+But it was not necessary to exclude those who wished to waive their pension claims in order to try to continue working [4447].
+In Georgiev v Technicheski Universitet Sofia, Filial Plovdiv, Joined Cases C 250/09 & C 268/09 [2011] 2 CMLR 179, the Second Chamber (again with Judge Lindh as juge rapporteur) held that article 6(1) did not preclude national legislation under which university professors are compulsorily retired when they reach 68 and may only work beyond 65 on one year fixed term contracts renewable at most twice, provided that it pursued a legitimate aim linked to employment and labour market policy, such as the delivery of quality teaching and the best possible allocation of posts for professors between the generations and that it makes it possible to achieve that aim by appropriate and necessary means [68].
+Given that the average age of Bulgarian professors was 58 and younger people were not interested in entering the career, it was for the national court to decide whether these actually were the aims of the Bulgarian legislature.
+The second chamber (again with Judge Lindh as juge rapporteur) had to consider a very similar law of the Land Hessen, providing for the compulsory retirement of civil servants, including state prosecutors, in Fuchs and another v Land Hessen, Joined Cases C 159/10 and C 160/10, [2011] 3 CMLR 1299.
+The claimed aims were to achieve a balance between the generations, plus the efficient planning of the departure and recruitment of staff, encouraging the recruitment or promotion of young people, and avoiding disputes about older employees ability to perform their duties [47]; and also to promote interchange between the experience of older colleagues and the recently acquired knowledge of younger ones [48].
+All of these could constitute legitimate aims [49], [50].
+The court repeated the general propositions about the nature of legitimate aims in Age Concern [46] at [52].
+But it went on to issue some words of warning.
+Member states may not frustrate the prohibition of discrimination on grounds of age, read in the light of the fundamental right to engage in work [62].
+Particular attention must be paid to the participation of older workers in the labour force and thus in economic, cultural and social life.
+Keeping older workers in the labour force promotes diversity, and contributes to realising their potential and to their quality of life [63].
+This interest must be taken into account in respecting the other, potentially divergent, interests [64].
+Therefore, in defining their social policy on the basis of political, economic, social, demographic and/or budgetary considerations, the national authorities concerned may be led to choose to prolong peoples working life or, conversely, to provide for early retirement (see Palacios de la Villa, [68] and [69]).
+The Court has held that it is for those authorities to find the right balance between the different interests involved, while ensuring that they did not go beyond what is appropriate and necessary to achieve the legitimate aim pursued (Palacios de la Villa [69], [71] Rosenbladt [44]). [65] Budgetary considerations might underpin the chosen social policy, but they could not in themselves constitute a legitimate aim within article 6(1) [74].
+This measure might be appropriate to the aim of facilitating access to employment by younger people, in a profession where the number of posts is limited (citing Petersen and Georgiev) [58, 59, 60].
+Nor did it go beyond what was necessary to achieve its aims, given that the prosecutors could retire at 65 on generous pensions, continue working until 68, and practise as lawyers if they left [68].
+Hennigs v Eisenbahn Bundesamt; Land Berlin v Mai, Joined Cases C 297/10 and C 298/10, [2011] ECR, decided by the Second Chamber (again with Judge Lindh as juge rapporteur) in September 2011, is another example of a finding that determining pay grades by reference to age at first appointment could not be justified.
+Rewarding experience was a legitimate aim (see Htter), but while length of service was appropriate to achieve that aim, age did not always correlate with experience [74, 75, 76].
+Finally, in Prigge and others v Deutsche Lufthansa AG, Case C 447/09 [2011] IRLR 1052, the Grand Chamber (again with Judge Lindh as juge rapporteur) found that a collective agreement providing for the employment of Lufthansa pilots to terminate automatically at the age of 65 could not be justified.
+This was not an article 6(1) case, as the suggested aims had to do with the safety and security of air travel, which fell within article 2(5), or the physical capabilities required for flying a plane, which fell within article 4(1).
+But as neither international nor national legislation considered that an absolute ban at the age of 65 was necessary to achieve these aims, it could not be justified.
+What messages, then, can we take from the European case law? (1) All the references to the European Court discussed above have concerned national laws or provisions in collective agreements authorised by national laws.
+They have not concerned provisions in individual contracts of employment or partnership, as this case does.
+However, the Bartsch case, mentioned at [2] above, did concern the rules of a particular employers pension fund; and the Prigge case, [49] above, concerned a collective agreement governing the employees of a single employer, Deutsche Lufthansa. (2) If it is sought to justify direct age discrimination under article 6(1), the aims of the measure must be social policy objectives, such as those related to employment policy, the labour market or vocational training.
+These are of a public interest nature, which is distinguishable from purely individual reasons particular to the employers situation, such as cost reduction or improving competitiveness (Age Concern, Fuchs). (3) It would appear from that, as Advocate General Bot pointed out in Kckdeveci, that flexibility for employers is not in itself a legitimate aim; but a certain degree of flexibility may be permitted to employers in the pursuit of legitimate social policy objectives. (4) A number of legitimate aims, some of which overlap, have been recognised in the context of direct age discrimination claims: (i) promoting access to employment for younger people (Palacios de la Villa, Htter, Kckdeveci); (ii) the efficient planning of the departure and recruitment of staff (Fuchs); (iii) sharing out employment opportunities fairly between the generations (Petersen, Rosenbladt, Fuchs); (iv) ensuring a mix of generations of staff so as to promote the exchange of experience and new ideas (Georgiev, Fuchs); (v) rewarding experience (Htter, Hennigs); (vi) cushioning the blow for long serving employees who may find it hard to find new employment if dismissed (Ingenirforeningen i Danmark); (vii) facilitating the participation of older workers in the workforce (Fuchs, see also Mangold v Helm, Case C 144/04 [2006] 1 CMLR 1132); (viii) avoiding the need to dismiss employees on the ground that they are no longer capable of doing the job which may be humiliating for the employee concerned (Rosenbladt); or (ix) avoiding disputes about the employees fitness for work over a certain age (Fuchs). (5) However, the measure in question must be both appropriate to achieve its legitimate aim or aims and necessary in order to do so.
+Measures based on age may not be appropriate to the aims of rewarding experience or protecting long service (Htter, Kckdeveci, Ingenirforeningen i Danmark). (6) The gravity of the effect upon the employees discriminated against has to be weighed against the importance of the legitimate aims in assessing the necessity of the particular measure chosen (Fuchs). (7) The scope of the tests for justifying indirect discrimination under article 2(2)(b) and for justifying any age discrimination under article 6(1) is not identical.
+It is for the member states, rather than the individual employer, to establish the legitimacy of the aim pursued (Age Concern).
+Issues 1 and 3
+Not surprisingly, in view of the way in which regulation 3 is constructed, the ET in this case approached the task of justifying direct age discrimination in the way that was familiar to them in the context of indirect discrimination on other grounds (as to which see Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15).
+They did not, of course, have the benefit of any of the subsequent jurisprudence either in Luxembourg or the UK.
+It now seems clear that the approach to justifying direct age discrimination cannot be identical to the approach to justifying indirect discrimination and that regulation 3 (and its equivalent in section 13(2) of the Equality Act 2010) must be read accordingly.
+In Age Concern, the Court recorded the submission of the EU Commission that in article 6, the focus is on the legitimate aim pursued by the member state, whereas in article 2(2)(b) the focus is on whether the employer can justify his employment practices [57].
+The Court did not expressly approve that, but it did say that the scope of the two is not identical [58] and that article 6 is addressed to member states [67]. (It is also worth noting that in Ingenirforeningen i Danmark, Advocate General Kokott pointed out that the objectives which might be relied upon to justify direct discrimination, whether under article 6(1), 4(1) or 2(5), were fewer than those capable of justifying an indirect difference in treatment, even though the proportionality test requirements are essentially the same [AG31].)
+But what exactly does this mean in practical terms? On the one hand, Luxembourg tells us that the choice of social policy aims is for the member states to make.
+It is easy to see why this should be so, given that the possible aims may be contradictory, in particular between promoting youth employment and prolonging the working life of older people.
+On the other hand, however, Luxembourg has sanctioned a generally worded provision such as regulation 3, which spells out neither the aims nor the means which may be justified.
+It is also easy to see why this should be so, given that the priority which might be attached to particular aims is likely to change with the economic, social and demographic conditions in the country concerned.
+In Age UK, Blake J identified the states aim, in relation both to regulation 3 and to the designated retirement age in regulation 30, as being to preserve the confidence and integrity of the labour market.
+This is not an easy concept to understand, and there is a risk that it might be taken as allowing employers to continue to do whatever suits them best.
+But it is, as Advocate General Bot observed in Kckdeveci, difficult to see how granting flexibility to employers can be a legitimate aim in itself, as opposed to a means of achieving other legitimate aims.
+Furthermore, the Secretary of State accepts that there is a distinction between aims such as cost reduction and improving competitiveness, which would not be legitimate, and aims relating to employment policy, the labour market and vocational training, which would.
+It seems, therefore, that the United Kingdom has chosen to give employers and partnerships the flexibility to choose which objectives to pursue, provided always that (i) these objectives can count as legitimate objectives of a public interest nature within the meaning of the Directive and (ii) are consistent with the social policy aims of the state and (iii) the means used are proportionate, that is both appropriate to the aim and (reasonably) necessary to achieve it.
+Two different kinds of legitimate objective have been identified by the Luxembourg court.
+The first kind may be summed up as inter generational fairness.
+This is comparatively uncontroversial.
+It can mean a variety of things, depending upon the particular circumstances of the employment concerned: for example, it can mean facilitating access to employment by young people; it can mean enabling older people to remain in the workforce; it can mean sharing limited opportunities to work in a particular profession fairly between the generations; it can mean promoting diversity and the interchange of ideas between younger and older workers.
+The second kind may be summed up as dignity.
+This has been variously put as avoiding the need to dismiss older workers on the grounds of incapacity or underperformance, thus preserving their dignity and avoiding humiliation, and as avoiding the need for costly and divisive disputes about capacity or underperformance.
+Either way, it is much more controversial.
+As Age UK argue, the philosophy underlying all the anti discrimination laws is the dignity of each individual, the right to be treated equally irrespective of either irrational prejudice or stereotypical assumptions which may be true of some but not of others.
+The assumptions underlying these objectives look suspiciously like stereotyping.
+Concerns about capacity, it is argued, are better dealt with, as they were in Wolf and Prigge under article 4(1), which enables them to be related to the particular requirements of the job in question.
+I confess to some sympathy with the position taken by Age UK.
+The fact that most women are less physically strong than most men does not justify refusing a job requiring strength to a woman candidate just because she is a woman.
+The fact that this particular woman is not strong enough for the job would justify refusing it to her.
+It would be consistent with this principle to hold that the fact that most people over a certain age have slower reactions than most people under that age does not justify sacking everyone who reaches that age irrespective of whether or not they still do have the necessary speed of reaction.
+But we know that the Luxembourg court has held that the avoidance of unseemly debates about capacity is capable of being a legitimate aim.
+The focus must therefore turn to whether this is a legitimate aim in the particular circumstances of the case.
+The fact that a particular aim is capable of being a legitimate aim under the Directive (and therefore the domestic legislation) is only the beginning of the story.
+It is still necessary to inquire whether it is in fact the aim being pursued.
+The ET, EAT and Court of Appeal considered, on the basis of the case law concerning indirect discrimination (Schnheit v Stadt Frankfurt am Main, Joined Cases C 4/02 and C 5/02, [2004] IRLR 983; see also R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213), that the aim need not have been articulated or even realised at the time when the measure was first adopted.
+It can be an ex post facto rationalisation.
+The EAT also said this [50]: A tribunal is entitled to look with particular care at alleged aims which in fact were not, or may not have been, in the rule makers mind at all.
+But to treat as discriminatory, what might be a clearly justified rule on this basis would be unjust, would be perceived to be unjust, and would bring discrimination law into disrepute.
+There is in fact no hint in the Luxembourg cases that the objective pursued has to be that which was in the minds of those who adopted the measure in the first place.
+Indeed, the national court asked that very question in Petersen.
+The answer given was that it was for the national court to seek out the reason for maintaining the measure in question and thus to identify the objective which it pursues [42] (emphasis supplied).
+So it would seem that, while it has to be the actual objective, this may be an ex post facto rationalisation.
+Once an aim has been identified, it has still to be asked whether it is legitimate in the particular circumstances of the employment concerned.
+For example, improving the recruitment of young people, in order to achieve a balanced and diverse workforce, is in principle a legitimate aim.
+But if there is in fact no problem in recruiting the young and the problem is in retaining the older and more experienced workers then it may not be a legitimate aim for the business concerned.
+Avoiding the need for performance management may be a legitimate aim, but if in fact the business already has sophisticated performance management measures in place, it may not be legitimate to avoid them for only one section of the workforce.
+Finally, of course, the means chosen have to be both appropriate and necessary.
+It is one thing to say that the aim is to achieve a balanced and diverse workforce.
+It is another thing to say that a mandatory retirement age of 65 is both appropriate and necessary to achieving this end.
+It is one thing to say that the aim is to avoid the need for performance management procedures.
+It is another to say that a mandatory retirement age of 65 is appropriate and necessary to achieving this end.
+The means have to be carefully scrutinised in the context of the particular business concerned in order to see whether they do meet the objective and there are not other, less discriminatory, measures which would do so.
+Issue 2
+This leads to the final issue, which is whether the measure has to be justified, not only in general but also in its application to the particular individual.
+After all, the regulation applies to a particular act of direct discrimination, where on grounds of Bs age, A treats B less favourably than he treats or would treat other persons and A cannot show the treatment . to be a proportionate means of achieving a legitimate aim. The argument on behalf of Mr Seldon, therefore, is that the partnership, A, had to show that its particular less favourable treatment of him, B, was justified.
+This could be another distinction between direct and indirect discrimination, because for indirect discrimination the regulation only requires A to show that the provision, criterion or practice is a proportionate means of achieving a legitimate aim.
+Hence, it is argued, the partnership should have to show, not only that the mandatory retirement rule was a proportionate means of achieving a legitimate aim, but also that applying it to Mr Seldon could be justified at the time.
+The answer given in the EAT, at [58], with which the Court of Appeal agreed, at [36], was that: Typically, legitimate aims can only be achieved by the application of general rules or policies.
+The adoption of a general rule, as opposed to a series of responses to particular individual circumstances, is itself an important element in the justification.
+It is what gives predictability and consistency, itself an important virtue.
+Thus the EAT would not rule out the possibility that there may be cases where the particular application of the rule has to be justified, but they suspected that these would be extremely rare.
+I would accept that where it is justified to have a general rule, then the existence of that rule will usually justify the treatment which results from it.
+In the particular context of inter generational fairness, it must be relevant that at an earlier stage in his life, a partner or employee may well have benefited from a rule which obliged his seniors to retire at a particular age.
+Nor can it be entirely irrelevant that the rule in question was re negotiated comparatively recently between the partners.
+It is true that they did not then appreciate that the forthcoming Age Regulations would apply to them.
+But it is some indication that at the time they thought that it was fair to have such a rule.
+Luxembourg has drawn a distinction between laws and regulations which are unilaterally imposed and collective agreements which are the product of bargaining between the social partners on a presumably more equal basis (Rosenbladt, Hennigs).
+There is therefore a distinction between justifying the application of the rule to a particular individual, which in many cases would negate the purpose of having a rule, and justifying the rule in the particular circumstances of the business.
+All businesses will now have to give careful consideration to what, if any, mandatory retirement rules can be justified.
+Application to this case
+In common with both the EAT and the Court of Appeal, I would pay tribute to the careful judgment of the ET.
+Their conclusions are particularly impressive given that they were deciding the case in November 2007, before any of the European jurisprudence discussed earlier had emerged.
+They did approach the justification of direct discrimination in the same way as they would have approached the justification of indirect discrimination, whereas we now know that there is a difference between the two.
+However, they identified three aims for the compulsory retirement age, which the Court of Appeal summed up as dead mens shoes and collegiality.
+Mr Seldon, with the support of Age UK, has argued that these were individual aims of the business rather than the sort of social policy aims contemplated by the Directive.
+I do not think that that is fair.
+The first two identified aims were staff retention and workforce planning, both of which are directly related to the legitimate social policy aim of sharing out professional employment opportunities fairly between the generations (and were recognised as legitimate in Fuchs).
+The third was limiting the need to expel partners by way of performance management, which is directly related to the dignity aims accepted in Rosenbladt and Fuchs.
+It is also clear that the aims can be related to the particular circumstances of the type of business concerned (such as university teaching, as in Georgiev).
+I would therefore accept that the identified aims were legitimate.
+As to whether the means chosen were proportionate, in the article 6(1) sense of being both appropriate and (reasonably) necessary to achieving those aims, the case is already to go back to the ET on the basis that it had not been shown that the choice of 65 was an appropriate means of achieving the third aim.
+The question, therefore, was whether the ET would have regarded the first two aims as sufficient by themselves.
+In answering that question, I would not rule out their considering whether the choice of a mandatory age of 65 was a proportionate means of achieving the first two aims.
+There is a difference between justifying a retirement age and justifying this retirement age.
+Taken to extremes, their first two aims might be thought to justify almost any retirement age.
+The ET did not unpick the question of the age chosen and discuss it in relation to each of the objectives.
+It would be unduly constraining to deny them the opportunity of doing so now.
+I would emphasise, however, that they are considering the circumstances as they were in 2006, when there was a designated retirement age of 65 for employees, and not as they are now.
+Subject to that observation, I would dismiss this appeal.
+LORD HOPE
+I am in full agreement with Lady Hales comprehensive judgment.
+For the reasons she gives, I too would dismiss this appeal.
+I wish to add only a few words of my own.
+Article 6(1) of Council Directive 2000/78/EC declares that Member States may provide that differences of treatment on grounds of age shall not constitute discrimination if, within the context of national law, they are objectively and reasonably justified by a legitimate aim including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.
+The provision in national law which defines age discrimination is regulation 3 of the Employment Equality (Age) Regulations 2006.
+This case seemed at one stage to be being argued on the basis that it concerns the application to Mr Seldon of a measure of the kind referred to in regulation 3(1)(b), under which a person (A) discriminates against another person (B) if A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but (i) which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and (ii) which puts B at that disadvantage, and A cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim.
+But I think that it is truly a case of direct discrimination of the kind referred to in regulation 3(1)(a).
+The proportionality test quoted above also applies to it, although the layout of the regulation in the statutory instrument might be taken as suggesting otherwise.
+Regulation 3(1)(a) provides that a person discriminates against another person for the purposes of the Regulations if, on grounds of Bs age, A treats B less favourably than he treats or would treat other persons.
+Regulation 3 was held by the ECJ in R (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform, Case C 388/07 [2009] ICR 1080 to be a proper implementation of the Directive, and the general words which appear at the end of the passage which I have quoted survived scrutiny by Blake J in R (Age UK) v Secretary of State for Business, Innovation and Skills (Equality and Human Rights Commission and another intervening) [2010] ICR 260: see paras 84 90.
+They must however be read together with article 6 of the Directive which indicates that aims of a certain character only can be regarded as legitimate in this context.
+The characteristic which distinguishes aims which are legitimate from those which are not is indicated by the words including legitimate employment policy, labour market and vocational training objectives.
+As Lady Hale has demonstrated, the evolving case law of the ECJ and the CJEU has shown that a distinction must be drawn between legitimate employment policy, labour market and vocational training objectives and purely individual reasons which are particular to the situation of the employer.
+There is a public interest in facilitating and promoting employment for young people, planning the recruitment and departure of staff and the sharing out of opportunities for advancement in a balanced manner according to age.
+These social policy objectives have private aspects to them, as they will tend to work to the employers advantage.
+But the point is that there is a public interest in the achievement of these aims too.
+They are likely to be intimately connected with what employers do to advance the interests of their own businesses, because that it how the real world operates.
+It is the fact that their aims can be seen to reflect the balance between the differing but legitimate interests of the various interest groups within society that makes them legitimate.
+It was submitted that the aims which were identified by the firm to justify the compulsory retirement age in this case were not social policy aims at all, when viewed objectively.
+Mr Allen QC for Mr Seldon said that the state had no interest in whether it was run in this way.
+It would make it all too easy for a prejudiced employer to avoid being held to be in breach of the regulation if it could rely on aims such as those that had been identified in this case.
+Like Lady Hale, I would reject these arguments.
+It is true that the aims which the Employment Tribunal accepted as legitimate the retention of associates, facilitating the planning of the partnership and workforce and limiting the need to expel partners by way of performance management were directed to what could be regarded as being in the firms best interests.
+That in itself is not surprising, because firms such as Clarkson Wright and Jakes are in business and must organise their affairs accordingly.
+They are exposed to all the forces of competition in their chosen market.
+They are not a social service.
+This affects the way they choose to manage the partnership and other aspects of their workforce, just as much as it affects the way in which their business as a whole is conducted.
+But this does not mean that their aims cannot be seen, when viewed objectively, as being directly related to what is regarded as a legitimate social policy.
+I agree that the Employment Tribunal reached a sound decision on this point and that the aims which it identified were of a kind that, in terms of article 6 of the Directive, were legitimate.
+The question then is whether, as Mr Allen contended, the partners of the firm had to show that they had the legitimate public interests in mind at the time when the partnership deed was entered into in 2005, or at least that these were their only or main aims or objectives.
+I would answer this question in the negative.
+What article 6 requires is that the measure must be objectively justified.
+Just as it will not be sufficient for the partners simply to assert that their aims were designed to promote the social policy aims that the article has identified, it does not matter if they said nothing about this at the time or if they did not apply their minds to the issue at all.
+As it happens, no minute was taken of the reasons why clause 22 was framed as it was.
+But I regard this fact as immaterial, as the matter was one for the Employment Tribunal and not for the partners themselves to determine.
+Furthermore, the time at which the justification for the treatment which is said to be discriminatory must be examined is when the difference of treatment is applied to the person who brings the complaint.
+The case must go back to the Employment Tribunal on the issue as to whether it was proportionate for clause 22 to provide for the mandatory retirement of the partners at the end of the calendar year when they reached the age of 65.
+I agree with Lady Hale that it would be right for account to be taken of the fact that at the time both when the clause was agreed to and when it was applied to Mr Seldon, regulation 30 which provided for a designated retirement age for employees, was still in force.
+This fact is not, of course, conclusive.
+But it is a factor that can properly be taken into account, as the question is whether the treatment which Mr Seldon received was discriminatory at the time when he was subjected to it.
+The fact that it was lawful for others to be subjected to a designated retirement age may help to show that what was agreed to in this case was, at the relevant time, an acceptable way of achieving the legitimate aim.
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+This appeal is about the application of the annual leave provisions of the Working Time Regulations 1998 (SI 1998/1833) (the WTR) to offshore workers in the oil and gas industry.
+Employers differ in the way they organise their employees working time.
+The familiar pattern of working from 9am to 5pm five days each week throughout the 52 weeks of the year, with a few weeks taken from that commitment for annual holidays, is by no means uniform.
+For some, the nature of the job requires them to work for longer hours during each working day and to be given more days off during the working week to compensate.
+For others such as teachers and others who work in the education sector, the working pattern has to take account of the fact that the organisation for which they work is open for some periods of the year and is closed for others.
+The appellants in this case work offshore, so their working pattern is divided into time spent working offshore and time spent onshore when, by and large, they are not working.
+The only unifying factors in what is, after all, an infinite variety are that the way in which a workers time is organised is a function of the nature of the job itself, and that in the interests of health and safety workers must be given some time off to rest.
+The WTR contain the provisions that currently provide for rest periods in domestic law.
+They were designed to implement Council Directive 93/104/EC.
+The 1993 Directive was repealed by Council Directive 2003/88/EC concerning certain aspects of the organisation of working time (the WTD).
+It consolidated the 1993 Directive and a subsequent amending Directive and took effect as from 2 August 2004.
+Among the aspects of the organisation of working time that are the subject of rules in the WTD are minimum rest periods.
+They are set out in chapter 2.
+As it is concerned with laying down what are described as minimum requirements, the provisions which it contains adopt for the most part a one size fits all approach.
+There is scope for derogation in particular cases, and there are special rules for mobile workers, those engaged in offshore work and workers on board seagoing fishing vessels.
+But there is no attempt, either in the WTD or the WTR, to identify particular patterns of working and legislate for them individually.
+It is for the judiciary, in the event of a dispute, to work out how its requirements
+are to be applied in particular cases
+The problem in this case is how the statutory right to paid annual leave under the WTR is to be applied to offshore workers in the oil and gas industry.
+Typically they work a two weeks offshore and two weeks onshore (known as field break) shift pattern.
+Some work three weeks offshore and three weeks onshore, and some work two weeks offshore and three weeks onshore.
+But nothing turns on these differences.
+The central issue is whether the period spent onshore should count towards the workers entitlement under regulation 13 of the WTR to what, when the appellants made their claims, was to four weeks paid annual leave.
+That entitlement has now been increased by an amendment to the WTR to 5.6 weeks, by adding 1.6 weeks to take account of Bank Holidays: regulation 13A, inserted by regulation 2(1)(2) of the Working Time (Amendment) Regulations 2007 (SI 2007/2079).
+But nothing turns on that point either in this case.
+The appellants say that annual leave, properly construed, means release from what would otherwise have been an obligation to work, and that the employers cannot discharge their obligation to provide them with annual leave by insisting that they take this during periods of field break.
+Their periods of field break, they say, is their time.
+It is not their employers time, and they insist that it is the employers time out of which the annual leave should be taken.
+The respondents say that the time spent onshore is in itself a rest period, as it is not working time.
+And they point out that it is substantially more than the minimum of four weeks annual leave to which the appellants are entitled under the WTR.
+Their case is that the requirements of the WTR are more than satisfied already, and there is no need for the appellants to take annual leave out of the periods spent offshore.
+As the appellants point out, the issue that this dispute raises is important not just for the parties themselves.
+It has significant implications for other parts of the labour market.
+We cannot resolve all the problems that may possibly arise in this case.
+But the answer to the dispute has to take account of the fact that the WTD, and the WTR which give effect to it, have been designed to apply to the labour market generally.
+Annual leave the statutory entitlement
+It will be necessary to examine the WTD and the WTR in more detail later.
+For the time being it is sufficient to note that article 7 of the WTD provides that member states shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks.
+This is to be in accordance with conditions laid down by national legislation and/or practice.
+Regulation 13(1) of the WTR gives effect to this requirement.
+It provides that a worker is entitled to four weeks annual leave in each leave year.
+Regulation 15 contains provisions about how the days when this is to be taken are to be worked out between the worker and the employer, if this has not already been agreed, by a system of notices and counter notices.
+The facts
+The appellants cases are seven sample cases which have been selected from a much larger number of similar complaints that were lodged with the employment tribunal.
+They were all employed to work in various capacities on offshore installations located in the United Kingdom Continental Shelf.
+There were differences in the way their contracts were expressed as they were working for different employers, but it was agreed that nothing turns on these details.
+With the exception of Mr Craig, the appellants were contracted to work to a pattern of two weeks offshore with a period of field break for two weeks onshore.
+Mr Craig was contracted to work three weeks offshore followed by three weeks onshore.
+Whilst offshore the appellants generally worked, and still work, a 12 hour shift each day during which rest breaks are taken.
+This was followed by 12 hours off duty living offshore on the installation.
+They did not have any days off while they were offshore.
+Part of the time during which the appellants were on field break was occupied in travelling to and from the installation and Aberdeen airport by helicopter, and to and from home once they were onshore.
+During the periods of field break the appellants attended occasional events that could only be undertaken onshore, such as training courses, appraisals, grievance and disciplinary hearings, medical assessments and offshore survival courses.
+But it is agreed that these occasional activities are of no significance for present purposes.
+For the most part the appellants were free from work related obligations during the entire period of their field breaks.
+They could spend their time as they chose.
+The appellants issued proceedings in the employment tribunal at Aberdeen in which they contended that the relevant provisions of the WTR required the respondents to permit them to take four weeks paid annual leave from periods when they would otherwise be required to work on the offshore installation.
+The respondents maintained that the paid annual leave entitlement was discharged by two weeks onshore within the shift pattern.
+In a long and careful judgment, which covered various other issues with which we are not concerned and was sent to the parties on 21 February 2008, the employment tribunal held that leave in regulation 13 of the WTR involved a release from what would otherwise have been an obligation to work, or at least to be available for work or otherwise in some way on call: para 300.
+So the field breaks were not to be regarded as annual leave for the purposes of the regulation, although they might provide periods of compensatory rest for the purposes of regulation 24 to the extent required: para 310 (xxviii).
+In a review judgment dated 1 December 2008 the tribunal confirmed that, in its view, a worker is entitled to exercise his or her right to paid annual leave under regulation 13 at such times as he or she would otherwise be obliged to work or be available to work.
+In the case of a worker whose pattern of work was to work for two weeks followed by two weeks break from work, the entitlement to paid annual leave amounted to two weeks to be taken from time when he or she would otherwise be working.
+It had already explained in para 308 of its judgment the calculation on which this conclusion was based and which is not now in dispute.
+The number of days worked during each period of 28 days was 14 days, which amounted to an average of three and a half days a week.
+This produced an annual leave entitlement of 14 days.
+The number of hours worked each day made no difference.
+The tribunals finding that the respondents had refused to permit the appellants to exercise their right to paid annual leave because this could not be taken out of field break was set aside by the Employment Appeal Tribunal (Lady Smith, Mr M Sibbald and Mr R Thomson, Mr Thomson dissenting) in a judgment issued on 6 March 2009: [2009] IRLR 519.
+Lady Smith said in para 130 of the judgment that the time conceded to be available during field breaks, after allowing for compensatory rest to take account of the fact that the appellants worked offshore without a weekly rest period, was more than sufficient to cover the entitlement to annual leave.
+It was time when they were free of all and any work obligations and not subject to the possibility of being called on to work.
+It was to be regarded as a rest period.
+It did not matter that, because of the working patterns in the industry, the appellants would not otherwise be working during these periods.
+The appellants appealed to the Inner House of the Court of Session.
+Their case was heard by an Extra Division (Lord Eassie, Lady Paton and Lord Emslie), which refused the appeal and remitted various outstanding issues to the Employment Appeal Tribunal to proceed accords: 2011 SC 175.
+The opinion of the court was delivered by Lord Eassie.
+He said that the court found force in the analysis advanced by the respondents that the structure of chapter 2 of the WTD involved different cycles of working time, and that what article 7 of the WTD required was that there be provided to the worker within the year at least four remunerated weeks of the yearly cycle in which he was free from working commitments: paras 33 34.
+There was nothing in the WTD to suggest that employers might not arrange matters so that annual leave was taken during the school holidays or such similar industrial equivalent: para 36.
+In para 37 he acknowledged that the appellants were required to work for about 26 weeks every year.
+But that requirement did not constitute an infringement of the cap, or limit, on the number of working weeks in the year set by article 7 as 48 weeks.
+That the 26 weeks onshore were termed as field break was not a matter upon which anything turned.
+He summarised the courts decision in para 51: on the core question of whether the annual provision by the employers of 26 weeks of field break fails to satisfy the entitlement of the employees under regulation 13 of the WTR, the answer which we give is in the negative.
+For all the reasons which we have given we consider that the working pattern of field break applicable in these appeals satisfies the requirements of the WTR, interpreted in the light of the WTD.
+Relevant provisions of the WTD
+The Treaty base for the WTD is identified in recital 2 of the preamble.
+It refers to article 137 of the Treaty establishing the European Community, which provides that the Community is to support and complement the activities of the member states with a view to improving the working environment to protect workers health and safety.
+As Lady Smith pointed out in the EATs judgment [2009] IRLR 519, para 9, the source for the WTD can be traced back to the Community Charter of the Fundamental Social Rights of Workers, adopted at Strasbourg on 9 December 1989.
+Adopting words used in paras 8 and 19 of the Charter, recitals 4 and 5 of the preamble to the WTD then state: 4.
+The improvement of workers safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations. 5.
+All workers should have adequate rest periods.
+The concept of rest must be expressed in units of time, ie in days, hours and/or fractions thereof.
+Community workers must be granted minimum daily, weekly and annual periods of rest and adequate breaks.
+It is also necessary in this context to place a maximum limit on weekly working hours.
+The purpose and scope of the Directive are identified in article 1, which states that it lays down minimum safety and health requirements for the organisation of working time and that it applies to minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time.
+Article 2 provides the following definitions of the expressions working time and rest period: 1. working time means any period during which the worker is working, at the employers disposal and carrying out his activity or duties, in accordance with national laws and/or practice; 2. rest period means any period which is not working time.
+There then follows Chapter 2, which is headed minimum rest periods other aspects of the organisation of working time.
+The way working time is to be organised is then set out in articles 3 to 7.
+Article 3, which is headed Daily rest, states that the member states shall take the measures necessary to ensure that every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24 hour period.
+Article 4, which is headed Breaks, states that member states shall take the measures necessary to ensure that, where the working day is longer than six hours, every worker is entitled to a rest break, the details of which shall be laid down in collective agreements or agreements between the two sides of industry or, failing that, by national legislation.
+Article 5, which is headed Weekly rest period, states that member states shall take the measures necessary to ensure that, per each seven day period, every worker is entitled to a minimum uninterrupted period of 24 hours plus the 11 hours daily rest referred to in article 3.
+Article 6, which is headed Maximum weekly working time, states that member states shall take the measures necessary to ensure that, in keeping with the need to protect the safety and health of workers, the average working time of each seven day period, including overtime, does not exceed 48 hours.
+Pausing there, one can see that the time that is available within the working week is to be organised in such a way as to ensure (i) that every worker whose working day is longer than six hours is entitled during the day to a rest break, (ii) that every worker is entitled to a minimum period which is not working time of 11 consecutive hours of daily rest during each 24 hour period and (iii) that every worker is entitled during each seven day period to a minimum uninterrupted rest period of 24 hours as well as 11 consecutive hours of daily rest in each 24 hour period.
+Each period must therefore be measured separately from each other.
+They cannot intrude upon each other or overlap.
+Article 17 provides in paragraph 3(a) that derogations may be made from, among others, articles 3, 4 and 5 in the case of activities where the workers place of work and his place of residence are distant from one another, including offshore work, or where the workers different places of work are distant from one another.
+In that event, paragraph 2 of article 17 requires that the workers concerned are afforded equivalent periods of compensatory rest or, if in exceptional cases for objective reasons this is not possible, that they are afforded appropriate protection.
+It was agreed that in the appellants' case the first two days of each period of their field break is accounted for as compensatory rest, to make up for the fact that they work a 12 hour shift each day during their two weeks offshore.
+Article 7 is headed Annual leave.
+As article 17 makes clear, it cannot be derogated from.
+It is in these terms: 1.
+Member states shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice. 2.
+The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.
+The words consecutive and uninterrupted which qualify the periods of daily rest in article 3 and weekly rest in article 5 do not appear here.
+So article 7 does not require that the weeks of annual leave must be taken consecutively or that those weeks cannot be interrupted.
+The units of time referred to in recital 5 of the preamble (days, hours and/or fractions thereof) do not include weeks.
+But the text of articles 5 and 6 shows that the word weekly, which appears in the heading to those articles, refers to a seven day period.
+Article 21 of the WTD, which deals with workers on board seagoing fishing vessels, also refers to a seven day period, as does article 22.
+In this context the reference in article 7 to four weeks, rather than to 28 days, would seem prima facie to mean four uninterrupted seven day periods, but the conditions of the granting of such leave are left to national legislation and/or practice.
+As a period of leave is not a period which is working time, as defined in article 2, it must be taken to be what that article defines as a rest period.
+It is an annual period of rest: see recital 5.
+There is one other point.
+Mr Linden QC for the appellants said that the right to paid annual leave had a qualitative dimension.
+It was not just a matter of calculating, as a matter of arithmetic, how much time the worker was to have in a given year.
+The word leave was not defined in the WTD, but it was more than just rest.
+Reducing the matter to a simple arithmetical exercise would defeat the safety and health purpose of the annual leave provision and ignore the point that the compulsory rest periods are the minimum periods that are required.
+His submission, as I understood it, was that the field breaks did not have the quality that would enable any periods within them to be enjoyed as periods of annual leave.
+He used it to support his basic point that, as these periods onshore were not part of the appellants working time, they could not count towards their annual leave entitlement.
+I do not think that a qualitative requirement, as an additional test of whether a given period can be accounted as rest within the cycles of time that are identified, is to be found in the wording of the WTD.
+It is true that the safety and health of workers lies at the heart of the rules that it lays down.
+But there is no indication anywhere that it was concerned about the quality of the minimum periods of rest, other than to make it clear in the definition of rest period that it means a period which is not working time.
+The periods that it has identified must be taken in themselves to meet the objects stated in the preamble.
+The plain indication of its wording is that the exercise that must be carried out is indeed simply one of counting up the relevant hours, days or seven day periods and ensuring that the worker is not required to work during those periods.
+For example, conditions offshore vary from installation to installation and from time to time.
+The quality of the rest that can be enjoyed will vary.
+It may be disturbed by the noise and vibration that are part and parcel of offshore operations.
+But so long as the worker is given not less than 11 consecutive hours each day which is not working time, the requirements of article 3 will have been satisfied.
+Relevant provisions of the WTR
+The purpose of the WTR was to implement the provisions of the WTD.
+Its provisions must be interpreted, so far as possible, in conformity with the wording and purposes of the Directive: Litster v Forth Dry Dock and Engineering Co Ltd 1989 SC (HL) 96, 101, 105; [1990] 1 AC 546, 554, 559 per Lord Keith of Kinkel and Lord Oliver of Aylmerton; Marleasing SA v La Comercial Internacional de Alimentacin SA (Case C 106/89) [1990] ECR I 4135, para 9.
+So they are of secondary importance in this case.
+They are nevertheless relevant, as they set out the domestic rules that must be complied with in conformity with the obligations set out in the WTD.
+Regulation 2(1) sets out the meaning that is to be given to various words and phrases, among which are the following: rest period, in relation to a worker, means a period which is not working time, other than a rest break or leave to which the worker is entitled under these Regulations. working time, in relation to a worker, means (a) any period during which he is working, at his employers disposal and carrying out his activity or duties, (b) any period during which he is receiving relevant training, and (c) any additional period which is to be treated as working time for the purpose of these Regulations under a relevant agreement.
+Regulation 2(2) provides that in the absence of a definition in the Regulations, words and expressions used in particular provisions which are also used in corresponding provisions of the WTD have the same meaning as they have in those corresponding provisions.
+The word leave is not defined in the WTR, but it is not defined in the WTD either.
+It is left to take its meaning from the context.
+Like the expression rest break, it is a period which is not working time.
+This accords with the fact that a period which is not working time is defined by article 2 of the WTD as a rest period: see para 14, above.
+The rules about daily rest, weekly rest periods and rest breaks are set out in regulations 10, 11 and 12 in terms which, without reproducing exactly the language of the WTD, reflect its requirements.
+They also contain some additions.
+For example, regulation 11, which deals with the weekly rest period, allows the employer to provide the worker with either two uninterrupted rest periods each of not less than 24 hours within each 14 day period or one uninterrupted rest period of not less than 48 hours in each such 14 day period in place of the entitlement to an uninterrupted rest period of 24 hours in each seven day period during which he works for the employer.
+Regulation 13, as amended, which sets out the entitlement to annual leave, contains the following provisions: (1) Subject to paragraph (5) [which is not relevant for present purposes], a worker is entitled to four weeks annual leave in each leave year. (9) Leave to which a worker is entitled under this regulation may be taken in instalments, but (a) it may only be taken in the leave year in respect of which it is due, and (b) it may not be replaced by a payment in lieu except where the workers employment is terminated.
+Regulation 15 makes provision for the dates on which annual leave may be taken under regulation 13.
+This is where the conditions for the granting of such leave, referred to in article 7 of the WTD, are to be found.
+The basic rules are set out in paragraph (1).
+They are that a worker may take leave to which he is entitled on such days as he may elect by giving notice to his employer in accordance with paragraph (3), but that this is subject to any requirement imposed on him by his employer under paragraph (2).
+Paragraph (2) provides: A workers employer may require the worker (a) to take leave to which the worker is entitled ; or (b) not to take such leave, on particular days, by giving notice to the worker in accordance with paragraph (3).
+Paragraph (3) states that a notice under paragraph (1) or (2) may relate to all or any part of the leave to which a worker is entitled in any leave year, must specify the days on which leave is or is not to be taken and, where the leave on a particular day is to be in respect of only a part of a day, its duration.
+It contains provisions about the date before which notice is to be given to the employer or the worker, as the case may be.
+Regulation 21 takes advantage of the provisions about derogation in article 17 of the WTD.
+It provides that regulations 10, 11 and 12 do not apply in relation to a worker, among others, whose activities are such that his place of work and place of residence are distant from one another.
+Regulation 24 provides that where the application of any provision of the Regulations is excluded by regulation 21 and a worker is accordingly required by his employer to work during a period which would otherwise be a rest period or rest break, his employer shall wherever possible allow him to take an equivalent period of compensatory rest.
+This accords with what is to be found in article 17 of the WTD: see para 17, above.
+The appellants case
+Mr Lindens case was based on the proposition that leave could not be taken out of the periods when the appellants were on field break because they were not required by their contracts to work during those periods.
+These weeks were, as it was put, theirs already.
+It was inherent in the concept of leave that the worker was being released from the obligation to work.
+As they were not required to work during their field breaks, there were no periods within them for which they required to be given leave in order to remain onshore.
+This gave meaning to the concept of leave, and it was how the bargain between the parties should be interpreted.
+It was more than just rest.
+It was the workers right to say to his employer that, although his employer required him to work during a given period, he wanted to take his annual leave and to be released from the obligation to work during that period so that he could do so.
+He submitted that the importance of the purpose for which the right to leave was given was illustrated by Merino Gomez v Continental Industrias del Caucho SA (Case C 342/01) [2005] ICR 1040.
+The problem that arose in that case was a conflict between the Community law right to maternity leave on the one hand and the statutory right to annual leave under the Spanish implementation of article 7 of the WTD on the other.
+The ECJ held that the entitlement to paid annual leave was not to be regarded as having been met where the worker had been absent on maternity leave, as the purposes of these two entitlements was different.
+In paras 29, 30 and 32 the court said (omitting its references to previous case law): 29.
+The entitlement of every worker to paid annual leave must be regarded as a particularly important principle of Community social law from which there can be no derogations and whose implementation by the competent national authorities must be confined within the limits expressly laid down by Directive 93/104 [the then current working time Directive].
+It is significant in that connection that that Directive also embodies the rule that a worker must normally be entitled to actual rest, with a view to ensuring effective protection of his health and safety, since it is only where the employment relationship is terminated that article 7(2) permits an allowance to be paid in lieu of paid annual leave. 32.
+The purpose of the entitlement to annual leave is different from that of the entitlement to maternity leave.
+Maternity leave is intended, first, to protect a womans biological condition during and after pregnancy and, secondly, to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth. 30.
+Mr Linden referred also to Stringer v Revenue and Customs Comrs (Joined Cases C 520/06 and C 350/06) [2009] ICR 932, in which the issue was whether workers continued to accrue an entitlement to paid annual leave whilst absent on long term sickness and were entitled to take it during periods of absence on sick leave.
+He submitted that the judgment identified the qualitative nature of paid annual leave, which was different from sick leave.
+After recalling what had been said about annual leave in Gomez, paras 29 and 30, the Grand Chamber said this in para 25 of its judgment: It is common ground that the purpose of the entitlement to paid annual leave is to enable the worker to rest and to enjoy a period of relaxation and leisure.
+The purpose of the entitlement to sick leave is different.
+It is given to the worker so that he can recover from being ill.
+But it did not add anything to its previous jurisprudence on this matter.
+There was no indication here or in Gomez that the quality of any periods of time that were set aside for rest affected the question whether, in terms of their duration or the time that was selected, they were sufficient for the purposes of the WTD.
+In Pereda v Madrid Movilidad SA (Case C 277/08) [2009] ECR 1 8405, recalling what had been said about this in Gomez and Stringer, the ECJ again said that the purpose of the entitlement to annual leave was to enable the worker to rest and enjoy a period of relaxation and leisure: see paras 18 21.
+Mr Linden drew attention to the fact that the claimant in that case was under a 52 week contract that required him to work all the year round.
+He said that this was to be contrasted with the facts of this case, where the contract to work was what he described as a 26 week contract and there was no obligation to work for the other 26 weeks.
+But there was no suggestion in the Pereda case that the scheduled leave period did not count towards the statutory minimum annual leave entitlement because it was a period when the workers would not otherwise be working.
+It is to be noted too that the court said in para 22 that the scheduling of leave according to the rules and procedures of national law could take account of the various interests involved, including the overriding reasons relating to the interests of the undertaking.
+In the appellants case, it is the overriding interests of the employers that has led to the working pattern being organised in a way that requires their workers to work throughout the 14 days when they are offshore and to have their periods of rest and relaxation, other than breaks and the daily rest, during their field break onshore.
+Reference was also made to Sumsion v BBC (Scotland) [2007] IRLR 678, which the employment tribunal attempted to distinguish from the present case.
+The BBC sought to discharge its obligation to Mr Sumsion by requiring him to take every Saturday off as a leave day to make up his annual leave under regulation 13 of the WTR.
+His contract referred to the fact that his services would be required for up to six turns of duty per week, and that he was to be entitled to six days leave to be taken on any sixth non scheduled days in a week.
+The employment tribunal held in Sumsion that the BBC was not in breach of the WTR by requiring him to take his leave on Saturdays, and its decision was upheld by the EAT.
+In this case the employment tribunal said that the period of leave which Mr Sumsion was given was one when there was an obligation to work, whereas in the case of the field break out of which the respondents said leave should be taken there was no such obligation and never had been: para 289.
+I would not draw that distinction.
+It seems to me that the arrangements in both cases were essentially the same.
+It was known from the outset that the periods during which the employer was insisting leave should be taken were periods when the workers would not be required to work.
+That said, the facts of that case were, as Lord Eassie pointed out in para 50 of his opinion, somewhat special.
+It was a short term contract under which it could be said, as the EAT in that case concluded, that the employee had elected for his Saturdays to be taken as leave days under regulation 15 with the result that it was open to his employers to request him to do so.
+The case was also decided in the light of the decision of the Court of Appeal in Inland Revenue Commissioners v Ainsworth [2005] EWCA Civ 441, [2005] ICR 1149 before that decision was in effect set aside by the ECJs ruling in that case: see Stringer v Revenue and Customs Comrs [2009] ICR 932.
+And the device of requiring the worker to take his leave on Saturdays (the Saturday problem) does not arise in the case of the offshore workers.
+For all these reasons I do not think that the EATs decision in Sumsion offers any assistance to the solution of the problem that is before us in this case.
+It is worth noting however that in para 26 of its judgment in that case the EAT recognised that there might be cases in which, if the whole facts and circumstances were examined, it could be demonstrated that the employer, in nominating Saturday as a leave day, was not affording any real leave at all.
+Discussion
+I do not think that is right to describe the contract in this case, as Mr Linden sought to do, as a 26 week contract.
+The fact is that the appellants were under contract with their employers for the whole of each year.
+Their working pattern was organised in such a way that working time was limited to the 26 weeks when they were offshore.
+But their contractual relationship with their employers continued irrespective of where they were at any given time.
+They had continuity of employment throughout the year.
+The fact that their pattern of working was a repeating shift pattern was a product of that contractual relationship.
+The critical question is how that repeating shift pattern falls to be viewed for the purposes of the WTD.
+How is it to be determined whether the rules that it lays down for what recital 5 of the preamble refers to as daily, weekly and annual periods of rest are satisfied?
+As I have already explained (see para 21, above), I do not think that the quality of the periods that are set aside during each cycle determines whether the minimum requirements have been satisfied.
+I accept that the purpose of the entitlement to annual leave is to enable the worker to rest and enjoy a period of relaxation and leisure, as the ECJ has repeatedly made clear.
+But the WTD has met that purpose by laying down the minimum periods of rest that must be given in each cycle.
+As the ECJ said in Gomez [2005] ICR 1040, para 30, the fact that rest means actual rest is demonstrated by the rule that it is only where the employment relationship is terminated that article 7(2) permits an allowance to be paid in lieu of paid annual leave.
+But the ECJ has not said that a pre ordained rest period, when the worker is free from all obligations to the employer, can never constitute annual leave within the meaning of that article.
+I would hold therefore that rest period simply means any period which is not working time: see article 2.
+Any period includes every such period irrespective of where the worker is at that time and what he is doing, so long as it is a period when he is not working.
+I think it is plain that any period when the appellants are on field break onshore will fall into that category.
+The employment tribunal recognised in para 286 of its judgment that there was an element of circularity in the appellants argument: ie, is it that a particular period cannot be said to be leave because it is a period when there is no obligation to work, or is it that there is only no obligation to work because the period in question has already been designated as leave? It referred to the case of teachers in non term time and tradesmen in the trades fortnight as examples of the latter where the period when annual leave could be taken had already been designated.
+But it did not try to resolve this apparent anomaly, as it did not see these cases as giving rise in practice to any difficulty.
+The solution which it favoured, contrary to what happened in practice in those cases, seemed to it to be founded on the common sense proposition that the workers entitlement to each of the measures provided for by the WTR required to be real, in the sense that they genuinely provided a break from what would otherwise be an obligation to work or to be available to work.
+But the facts of this case do not support the idea that the field break is not a genuine break or otherwise unreal.
+Nor has there been any suggestion that the pattern of working has had, or is liable to have, an adverse effect on the appellants health or safety.
+For these reasons I would hold that the respondents are entitled to insist that the appellants must take their paid annual leave during periods when they are onshore on field break.
+In my opinion this is permitted by regulation 13 of the WTR, read in conformity with article 7 of the WTD.
+Other problem cases
+Attention was drawn in the course of the argument to two other problem cases which it was said might give rise to difficulty.
+The first was the case of teachers, already mentioned by the employment tribunal, who are required to take their annual leave during non term time.
+Various other cases fall into this category, such as professional footballers, staff who work in the devolved legislatures such as the Scottish Parliament and in the Parliament at Westminster and people who work full time during the season in the tourist industry.
+They are people who are left, for the most part, with no option but to take their paid annual leave during periods when they are not required to work.
+But the problem in their case disappears if, as I would hold, there is no objection to their being required to take their annual leave during those periods.
+The other problem was referred to as the Saturday problem, which is illustrated by the case of Sumsion.
+It was said to arise from the ability of employers under regulation 15 of the WTR to designate days within the week when the worker would not otherwise be working as annual leave.
+Carried to its extreme this could result in workers who worked a five day week, Sundays being treated as the weekly rest period, being required to take their annual leave each Saturday.
+This would exhaust the possibility of there ever being whole weeks in the year when annual leave could be taken.
+A literal reading of the employers rights under regulation 15(2) suggests that this course might be open to him.
+It would obviously be an abuse of the system as the EAT indicated in Sumsion v BBC (Scotland) [2007] IRLR 678, para 26.
+But the suggestion was that it was an abuse which could not be prevented.
+This raises a different problem from that which arises in the case of the offshore workers.
+The question is not whether a worker can be required to take annual leave during a period when he would not otherwise have been working but whether the worker can be forced to take his entitlement to annual leave in periods which are shorter than one week.
+But it is not a problem that has to be answered in this case.
+There seems to me to be much to be said for the view that, when article 7 of the WTD is read together with the purposes identified in the preamble and in the light of what the ECJ said in Gomez [2005] ICR 1040, para 30, the entitlement is to periods of annual leave measured in weeks, not days.
+The worker can opt to take all or part of it in days, if he chooses to do so.
+But the employer cannot force him to do so.
+But I do not need to reach a concluded view on this point, and I have not done so.
+Reference
+Mr Linden submitted that the meaning that was to be given to the expression annual leave in article 7 of the WTD was not so obvious as to leave no room for reasonable doubt and that, if the court was not persuaded that the appeal should be allowed, the issue should be referred to the CJEU for a preliminary ruling under article 267 of the Treaty on the Functioning of the European Union.
+Various other issues were listed in his written case as requiring a reference.
+I am not persuaded that a reference is necessary in this case on any of the questions that have been listed.
+We must be mindful of our responsibility as a court against whose decisions there is no judicial remedy under national law.
+But the ruling in Srl CILFIT v Ministry of Health (Case 283/81) [1982] ECR 3415 permits us to decline to make a reference if a decision on the point is not necessary to enable the court to give judgment or the answer to the question is acte clair.
+I do not think that the meaning to be given to article 7, for the purposes of this judgment, is open to any reasonable doubt.
+The wording and structure of the WTD plainly favours the respondents argument, and I can find nothing in any of the judgments of the ECJ to which we were referred that casts doubt on the meaning which I think should be given to it.
+I would refuse the request for a reference.
+Conclusion
+I would dismiss the appeal.
+I would affirm the interlocutor of the Extra Division of the Court of Session.
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+The first issue on this appeal is whether a statutory limitation period, which would otherwise bar the claim of the four appellants against the three respondents for damages for participation in an unlawful cartel, failed to comply with the European legal principles of effectiveness and legal certainty.
+If it was, the second issue is what if any effect that has on the application of that limitation period as between parties to civil litigation, in which it has now been held that the limitation period applies as a matter of domestic law to bar the claim.
+I will refer to the appellants and the respondents respectively as BCL and BASF.
+The cartel related to the supply of vitamins within the European Union.
+By Commission Decision COMP/E 1/37.512 of 21 November 2001, the European Commission found that the cartel infringed Article 81 of the EC Treaty (now TFEU 101) and imposed fines accordingly.
+Members of the cartel had until 31 January 2002 to appeal against the Commissions decisions.
+In the event, on 31 January 2002, only BASF appealed, and BASF only appealed against the fine levied.
+Notice of its appeal was published in the Official Journal on 4 May 2002 (C109/49).
+The Commissions Decision to which the appeal related was only published in the Official Journal of the European Communities on 10 January 2003.
+The Court of First Instance on 15 March 2006 reduced the fine imposed on BASF.
+The deadline for any further appeal by BASF to the European Court of Justice expired on 25 May 2006 without any further appeal being lodged.
+Under the Limitation Act 1980, section 2, BCL had six years to bring an action for tort in the High Court, running or almost certainly running (as Mr Vajda QC for BCL accepted in the notice of appeal and his oral submissions) from 21 November 2001.
+However, on 20 June 2003 section 47A of the Competition Act 1998, as inserted by section 18(1) of the Enterprise Act 2002, came into force, giving BCL the alternative possibility of a claim for damages in proceedings brought before the Competition Appeal Tribunal.
+The possibility was exercisable under certain conditions, the effect of which, as now conclusively established by the Court of Appeal, is that the time for bringing such a claim expired on 31 January 2004, two years after the time allowed for appeal against the Commissions decision on infringement, without any possibility of extension.
+No High Court proceedings were brought, but proceedings were in January 2004 issued in the Tribunal against other cartel members.
+The first intimation by BCL to BASF of any intended claim was on 21 November 2006, and proceedings were not issued in the Tribunal by BCL against BASF until 12 March 2008.
+BASF responded by contending that the claim was time barred.
+Reversing the Tribunal, the Court of Appeal held on 22 May 2009 that the claim was time barred and could proceed, if at all, only with an extension of time, [2009] EWCA Civ 434.
+The Tribunal on 19 November 2009 assumed that it had power to grant an extension, but declined to do so on the merits, [2009] CAT 29.
+The Court of Appeal held on 12 November 2010 that the Tribunal had no power to extend time under United Kingdom law: BCL Old Co Ltd v BASF SE (No 2) [2010] EWCA Civ 1258, [2011] Bus LR 428.
+It held further that European law did not override the United Kingdom time bar or require a power to extend to be treated as existing.
+On this basis, the merits of any application for an extension, if there had been such a power, became irrelevant.
+With the Supreme Courts permission, BCL now appeals to the Supreme Court against the Court of Appeals decision of 12 November 2010, but solely on the issue of European law.
+The UK legislative scheme
+The detailed legislative scheme is for convenience set out in the Annex to this judgment.
+For immediate purposes, it is sufficient to draw attention to the following features.
+First, BCLs right to claim damages in proceedings before the Tribunal under subsection (5) of section 47A did not arise until a decision (in this case by the Commission) had established that the relevant prohibition in question has been infringed.
+Then it was, under subsection (8), postponed, though subject to a discretion in the Tribunal, during any period during which proceedings against the Commission decision might be instituted in the European Court of Justice and, if any such proceedings were instituted, during the period before those proceedings were determined.
+Second, by virtue of Rule 31 of the Competition Appeal Tribunal Rules 2003 (SI 2003/1372) made under the Act, any such claim for damages required to be made within two years of the later of the end of that period or the date on which the cause of action accrued.
+The issues in greater detail
+BCLs main submission in the Tribunal and the Court of Appeal was that the limitation period for its claim against BASF in the Tribunal only began to run on 25 May 2006; that is, two years after the end of the period during which BASF could have lodged a further appeal in relation to the fine imposed on it.
+This submission was based on the proposition that the decision [which] has established that the relevant prohibition has been infringed, to which subsections (5) and (6) of section 47A of the Act refer and against which subsection (8) contemplates that proceedings might be brought in the European Court, embraced not merely the Commissions decision that there had been an infringement but also its decision as to the penalty to be imposed for the infringement.
+The Tribunal (Barling J, Ann Kelly and Michael Davey) on 25 September 2008 accepted this submission: [2008] CAT 24.
+It considered that other sections of the Act offered little assistance and that findings on penalty could be relevant to the nature and extent of any infringement.
+On 22 May 2009 the Court of Appeal (Waller, Lloyd and Richards LJJ) [2009] EWCA Civ 434 in a judgment given by Richards LJ took a different view of the plain and ordinary meaning of the statutory language and the natural reading of the section (paras 26 28 and 33).
+It regarded this as drawing a clear distinction between decisions as to infringement and as to penalty.
+It considered that the Tribunals concerns as to any overlap between decisions on infringement and penalty were over stated, and did not consider that they could in any event justify a departure from the sections natural meaning.
+No further appeal followed.
+The distinction between decisions on infringement and penalty decisions has been taken up and applied more recently by the Court of Appeal in its judgment in Deutsche Bahn AG v Morgan Crucible Co plc [2012] EWCA Civ 1055, to which the Supreme Court was referred, without submissions, after the oral hearing of this appeal.
+On the basis of Richards LJs remarks on 22 May 2009, the existence of a power to extend time was conceded by BASF for the purposes of the applications decided by the Tribunal on 19 November 2009, [2009] CAT 29.
+The Tribunal (Vivien Rose QC, The Hon Anthony Lewis and Dr Arthur Pryor CB) therefore assumed that it had power under rules 19 and 44 to extend the time limit under rule 31.
+But reservations were made as to the right to challenge the existence of any such power in the Court of Appeal.
+When the matter came before the Court of Appeal (Maurice Kay V P, Lloyd and Sullivan LJJ) on 12 November 2010, [2010] EWCA Civ 1258, the challenge to the existence of any power to extend time succeeded and no further appeal was permitted.
+Whether BCL would have been better off if the challenge had failed would have depended upon whether it could have disturbed the Tribunals conclusion that it was not in any event appropriate to exercise any power to extend.
+BCLs submission now is that the operation of the two year limitation period (in particular as regards its commencement) and the lack of any power to extend the limitation period were legally uncertain matters, which rendered it excessively difficult for BCL to pursue its claim against BASF in time.
+BCL point out that, where a specialist tribunal like the Competition Appeal Tribunal exists, the principle of effectiveness applies to proceedings before that tribunal, even if recourse to the ordinary courts remains available: Case C 268/06 Impact v Minister for Agriculture and Food [2008] ECR I 2483, para 51.
+Mr Brealey QC for BASF does not take issue with this.
+To explain why BCL did not in fact bring proceedings against BASF in January 2004 at the same time as proceedings were brought against other cartel members, BCL refers to a paragraph in a witness statement by its solicitor, Mr Edward Perrott, stating: 17 We considered bringing a claim against BASF at that point.
+It was discussed with Counsel and the conclusion from these discussions was that we were precluded from bringing the claims until the BASF appeal, about which we knew little, had been decided by the European Court.
+In the Court of Appeal on 12 November 2010, Lloyd LJ observed, with justification, at para 56, that It seems unlikely that the advice was in fact that they could not bring proceedings against BASF at that time.
+For Counsel to have said that he or she would have had to have ignored the words otherwise than with the permission of the Tribunal in section 47A(5)(b), the words without permission in section 47A(7) and (8), and rule 31(3).
+The exiguous account given by BCL of its thinking and of the advice received (from counsel not instructed on the present appeal) makes it difficult to say more, even assuming it to be relevant to try to do so.
+The European principles of effectiveness and legal certainty
+The principles of effectiveness and legal certainty on which Mr Christopher Vajda QC for BCL relies are well recognised.
+Mr Vajda referred in particular to Case C 453/99 Courage Ltd v Crehan [2002] QB 507, [2001] ECR I 6297, Case C 445/06 Danske Slagterier v Germany [2009] ECR I 2119 and Case C 456/08 Commission v Ireland [2010] ECR I 859 as well as the pithy statement by Advocate General Sharpston in Case C 512/08 European Commission v France, para 50.
+In Courage Ltd v Crehan the question was whether a publican who was party to a standard form of exclusive purchase obligation lease which infringed the then Article 85 (the precursor to Article 81) could claim damages against the brewery imposing the obligation or was precluded by virtue of the domestic law maxim ex turpi causa non oritur actio.
+The European Court held that Article 85 precluded any rule of national law which barred such a claim on the sole ground that the claimant was a party to the unlawful agreement (though the application of such a rule could be appropriate in a case where the claimant bore significant responsibility for the distortion of competition: para 31).
+It was (para 29) for national courts to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive directly from Community law, provided that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and that they do not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness)
+In Danske Slagterier Danish pig exporters, Danske Slagterier, brought an action against the Federal Republic for breach of European law in imposing certain import restrictions.
+The German courts held the cause of action to have become time barred after three years, applying by analogy the limitation period applicable under the German Civil Code BGB paragraph 852 to tort claims.
+The Court of Justices judgment records (para 30) that Danske Slagterier has bemoaned the lack of clarity in the legal position in Germany as to the national limitation rule applicable to claims seeking reparation on account of State liability for breach of Community law, stating that this question has not yet been dealt with by any legislative measure or any decision of the highest court, while academic legal writers are also divided on the issue as several legal bases are possible.
+In its view, application, for the first time and by analogy, of the time limit laid down in Paragraph 852 of the BGB to actions for damages against a State for breach of Community law would infringe the principles of legal certainty and legal clarity as well as the principles of effectiveness and equivalence.
+The Court regarded a three year limitation period as reasonable (para 32), but said that: 33. in order to serve their purpose of ensuring legal certainty, limitation periods must be fixed in advance.
+A situation marked by significant legal uncertainty may involve a breach of the principle of effectiveness, because reparation of the loss or damage caused to individuals by breaches of Community law for which a Member State can be held responsible could be rendered excessively difficult in practice if the individuals were unable to determine the applicable limitation period with a reasonable degree of certainty.
+Significantly for the present case, it continued: 34.
+It is for the national court, taking account of all the features of the legal and factual situation at the time material to the main proceedings, to determine, in light of the principle of effectiveness, whether the application by analogy of the time limit laid down in Paragraph 852(1) of the BGB to claims for reparation of loss or damage caused as a result of the breach of Community law by the Member State concerned was sufficiently foreseeable for individuals.
+It is to be noted that Danske Slagterier was a case brought against the Federal Republic.
+Any infringement of the principle of effectiveness could therefore be visited directly on the other party to the proceedings, by in particular refusing to allow it to rely upon the time limit or, in appropriate circumstances, awarding damages against it for any loss flowing from any enforcement of the time limit.
+Commission v Ireland arose from a challenge to the award to Celtic Roads Group (CRG) of a contract for the construction of the Dundalk Western Bypass by the Irish National Roads Authority (NRA), a statutory body with the overall responsibility for the planning and supervision of works for the construction and maintenance of national roads.
+SIAC Construction Ltd (SIAC), a member of a rival consortium (EuroLink), was informed on 14 October 2003 that the NRA had decided to designate CRG as the preferred tenderer, in terms indicating that this meant that the NRA would be proceeding with discussions with CRG, but that, if they broke down, it might still enter into discussions with EuroLink.
+However, on 9 December 2003 the NRA decided to award the contract to CRG, and on 5 February 2004 it signed a contract with CRG accordingly.
+Proceedings were commenced by SIAC on 8 April 2004, on the basis that their time for bringing an action started to run on 5 February 2004.
+But the proceedings were dismissed by the Irish High Court on 16 July 2004, as out of time under Order 84A(4) of the Courts Rules.
+Order 84A(4) provided: An application for the review of a decision to award or the award of a public contract shall be made at the earliest opportunity and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending such period.
+The Irish High Court held that any action had to be brought no later than three months from 14 October 2003.
+The Commission pursued a complaint against Ireland on the ground that it had in two respects breached the Council Directives regulating the award of public works contracts and the remedies required thereby, notably Directive 89/665/EEC, as amended by Directive 92/50/EEC, and Directive 93/37/EEC, as amended by Directive 97/52/EC.
+First, the NRA had failed to notify SIAC promptly and in good time before contracting with CRG of its decision to award the contract to CRG, to enable SIAC to mount its challenge.
+Secondly, and materially for present purposes, Ireland was in breach by maintaining in force Order 84A(4) of the Rules of the Superior Courts, in the version resulting from Statutory Instrument No 374 of 1998, in so far as it gives rise to uncertainty as to which decision must be challenged through legal proceedings and as to how periods for bringing an action are to be determined.
+The Court held that both these alleged heads of infringement were established.
+With regard to the second head, the Court reiterated that national limitation periods are as such permissible, but applied the principles of effectiveness and legal certainty in holding that the period prescribed by Order 84A(4) infringed European law.
+It did this in a series of paragraphs which it is necessary to set out in full, because the language of the English version differs somewhat between paragraphs, with the result that each side has selected the formulation best suiting its case and maintained that it is clear that this reflects the true principle.
+If, perish the thought, any real uncertainty exists about what the Court of Justice meant, Mr Vajda submits that the question should, under the CILFIT criteria, be sent to Luxembourg to achieve clarity (see Case C 283/81 Srl CILFIT v Ministry of Health [1982] ECR 3415).
+The relevant paragraphs read as follows: 53 On the other hand, national limitation periods, including the detailed rules for their application, should not in themselves be such as to render virtually impossible or excessively difficult the exercise of any rights which the person concerned derives from Community law (Lmmerzahl, paragraph 52). 54 Order 84A(4) of the RSC provides that an application for the review of a decision to award or the award of a public contract must be made within a specified period. 55 However, as occurred in the dispute which gave rise to the High Courts judgment of 16 July 2004, the Irish courts may interpret that provision as applying not only to the final decision to award a public contract but also to interim decisions taken by a contracting authority during the course of that public procurement procedure.
+If the final decision to award a contract is taken after expiry of the period laid down for challenging the relevant interim decision, the possibility cannot be excluded that an interested candidate or tenderer might find itself out of time and thus prevented from bringing an action challenging the award of the contract in question. 56 According to the Courts settled case law, the application of a national limitation period must not lead to the exercise of the right to review of decisions to award public contracts being deprived of its practical effectiveness (see, to that effect, Case C 470/99 Universale Bau and Others [2002] ECR I 11617, paragraph 72; Case C 327/00 Santex [2003] ECR I 1877, paragraphs 51 and 57; and Lmmerzahl, paragraph 52). 57 As observed by the Advocate General in point 51 of her Opinion, only if it is clear beyond doubt from the national legislation that even preparatory acts or interim decisions of contracting authorities at issue in public procurement cases start the limitation period running can tenderers and candidates take the necessary precautions to have possible breaches of procurement law reviewed effectively within the meaning of Article 1(1) of Directive 89/665 and to avoid their challenges being statute barred. 58 Accordingly, it is not compatible with the requirements of Article 1(1) of that directive if the scope of the period laid down in Order 84A(4) of the RSC is extended to cover the review of interim decisions taken by contracting authorities in public procurement procedures without that being clearly expressed in the wording thereof. 59 Ireland disagrees with this finding, contending that the application of such a period for challenging interim decisions corresponds to the objectives of Directive 89/665, in particular the requirement of rapid action. 60 It is true that Article 1(1) of Directive 89/665 requires Member States to ensure that decisions taken by contracting authorities may be reviewed effectively and as rapidly as possible.
+In order to attain the objective of rapidity pursued by that directive, Member States may impose limitation periods for actions in order to require traders to challenge promptly preliminary measures or interim decisions taken in public procurement procedures (see, to that effect, Universale Bau and Others, paragraphs 75 to 79; Case C 230/02 Grossmann Air Service [2004] ECR I 1829, paragraphs 30 and 36 to 39; and Lmmerzahl, paragraphs 50 and 51). 61 However, the objective of rapidity pursued by Directive 89/665 must be achieved in national law in compliance with the requirements of legal certainty.
+To that end, Member States have an obligation to create a legal situation that is sufficiently precise, clear and foreseeable to enable individuals to ascertain their rights and obligations (see, to that effect, Case C 361/88 Commission v Germany [1991] ECR 1 2567, paragraph 24, and Case C 221/94 Commission v Luxembourg [l996] ECR 1 5669, paragraph 22). 62 The abovementioned objective of rapidity does not permit Member States to disregard the principle of effectiveness, under which the detailed methods for the application of national limitation periods must not render impossible or excessively difficult the exercise of any rights which the person concerned derives from Community law, a principle which underlies the objective of ensuring effective review proceedings laid down in Article 1(1) of Directive 89/665. 63 The extension of the limitation period under Order 84A(4) of the RSC to interim decisions taken by contracting authorities in public procurement procedures in a manner which deprives the parties concerned of their right of review satisfies neither the requirements of legal certainty nor the objective of effective review.
+Interested parties must be informed of the application of limitation periods to interim decisions with sufficient clarity to enable them effectively to bring proceedings within the periods laid down.
+The failure to provide such information cannot be justified on grounds of procedural rapidity. 64 Ireland submits that the Irish courts interpret and apply Order 84A(4) of the RSC in conformity with the requirements of Directive 89/665.
+This argument refers to the significant role played by case law in common law countries such as Ireland. 65 It should be noted in this regard that, according to the Court's settled case law, although the transposition of a directive into domestic law does not necessarily require the provisions of the directive to be reproduced in precisely the same words in a specific, express provision of national law and a general legal context may be sufficient, it is nevertheless necessary that that legal context be sufficiently clear and precise as to enable the parties concerned to be fully informed of their rights and, if necessary, avail themselves of those rights before the national courts (judgment of 29 October 2009 in Case C 474/08 Commission v Belgium, paragraph 19 and case law cited). 66 Order 84A(4) of the RSC, however, does not satisfy those requirements inasmuch as it allows national courts to apply, by analogy, the limitation period which it provides for challenges to public contract award decisions to challenges to interim decisions taken by contracting authorities in the course of those procurement procedures, in respect of which no express provision was made by the legislature for that limitation period to apply.
+The resulting legal situation is not sufficiently clear and precise to exclude the risk that concerned candidates and tenderers may be deprived of their right to challenge decisions in public procurement matters handed down by a national court on the basis of its own interpretation of that provision. 67 It follows that the first part of the second head of claim is well founded.
+Resuming the effect of these cases: in Courage Ltd v Crehan the European Court was concerned with an English law rule which rendered recourse impossible, but pointed out that it was also impermissible for a rule of law to render the exercise of European legal rights excessively difficult.
+In Danske Slagterier the Court was concerned with the latter situation, and held it to apply where it was not ascertainable with a reasonable degree of certainty or not sufficiently foreseeable whether a limitation period applied.
+The same test, whether a national rule renders it impossible or excessively difficult to exercise European rights is stated and restated in paragraphs 53 and 62 in Commission v Ireland.
+In paragraphs 61, 65 and 66 the Court joins this with references to the need for Member States to create a legal situation which is sufficiently, precise, clear and foreseeable or sufficiently clear and precise to enable individuals to ascertain and avail themselves of their rights, and (in that case) to exclude the risk of their being deprived of the right to challenge a public procurement decision by a decision handed down by a national court on the basis of its own interpretation of its Rules.
+In paragraph 58 the Court summarised its conclusion in Commission v Ireland as being that it was not compatible with the Directive if the scope of the period laid down in Order 84A(4) was extended to cover the review of interim decisions . without that being clearly expressed in the wording thereof.
+All these statements of principle in Commission v Ireland appear readily reconcilable.
+The requirement is that the true effect or interpretation should be sufficiently foreseeable or clear.
+Clarity was especially important and was emphasized in the context of Commission v Ireland because Order 84A(4) on its face allowed review within three months of either the decision to award or the award of a public contract.
+It would have been hard to anticipate, without clear warning, that time for a challenge to the latter would run from the former.
+Under the equivalent English Rule of Court, which was in effectively identical terms to the Irish, it had been established at the highest level by May 2002 that a challenge to a grant of planning permission could be made within three months of the grant, and need not be brought within three months of any earlier resolution conditionally authorizing the grant: R (Burkett) v Hammersmith and Fulham LBC [2002] UKHL 23, [2002] 1 WLR 1593, per Lord Slynn para 5 and Lord Steyn para 42.
+The English courts would not have taken the same limiting view of Order 84A(4) as the Irish High Court did.
+Where a rule like Order 84A(4) points on its face to a course being open to a litigant, it is necessary for it to be made clear if a contrary result is intended.
+Less easily reconcilable in paragraph 57 of the English text is the endorsement by the Court of Advocate General Kokotts statement that only if it is clear beyond doubt from the national legislation that even preparatory acts or interim decisions . start the limitation period running can tenderers and candidates take the necessary precautions to have possible breaches of procurement law reviewed effectively and to avoid their challenges being statute barred.
+In its own terms, and without any supporting reference in the Advocate Generals opinion or the Courts judgment, it appears more an explanation of the effect of the established test in the particular circumstances of Commission v Ireland than a statement of a new legal test.
+That is consistent with what is said in paragraph 18 above about the obvious need, in the light of the apparent meaning of Order 84A(4), to make it clear if time for all complaints was in fact intended to run from the date of any preparatory act or interim decision.
+But paragraph 57 has been relied upon by Mr Vajda for BCL as establishing, or explaining, the relevant test as being whether the commencement and operation of the limitation period, as held by the Court of Appeal, were clear beyond doubt.
+Mr Vajda points out that in Commission v Ireland, in contrast to Danske Slagterier, the Court of Justice had to determine for itself whether the principles of effectiveness and legal certainty had been infringed, and he submits that this was the test it applied.
+Other language versions do not appear to me to lend real support to Mr Vajdas case on this point.
+In the French, the equivalent words to the English only if it is clear beyond doubt from the national legislation that . are ce nest que lorsquil ressort clairement de la lgislation nationale que .; in the German, they are nur . wenn aus den nationalen Rechtsvorschriften klar hervorgeht, dass .; in the Dutch, they are zijn slechts wanneer uit de nationale wettelijke regeling duidelijk blijkt dat ., and in the Portugese, they are s se resultar claramente da legislao nacional que .
+These versions all emphasise the need for clarity, nothing more, without reference to excluding doubt.
+The Spanish version slo cuando resulte inequvocamente posible de la legislacin nacional que . uses a word inequvocamente with the sense of unequivocally, but this is attached to the word posible.
+The Italian reads solo laddove dalla normativa nazionale risulti in maniera inequivoca che . , and on its face therefore endorses a need for an unequivocal provision.
+But the general tenor of these other language versions is that clarity was to be expected if Order 84A(4) was to be understood (contrary to its natural meaning) as barring claims which were not made within three months of any relevant preliminary act or interim decision.
+That, in the particular context, was understandable, for reasons already explained, but it does not mean that the Court of Justice was in paragraph 57 substituting a new test for that expressed in previous case law or elsewhere in its same judgment.
+If clarity beyond doubt were the appropriate general test, then any doubt presumably, any reasonably arguable question about the running of the limitation period or, more generally, about the way in which national law implements European law would infringe the principles of effectiveness and legal certainty.
+That is, unless and until a court presumably the final appellate court had resolved the doubt, one way or the other.
+The wide ranging significance of such a principle for national law barely needs mention.
+There could also be implications for European law.
+Any point of European law, which was open to doubt under the relevant Union instrument and which, when an issue arose in proceedings, would require a reference to the Court of Justice under the CILFIT criteria, might also be said to involve a breach of the European legal principles of effectiveness and legal certainty.
+Be that as it may be, it is hard to envisage that the European Court envisaged anything of this sort in paragraph 57 of its judgment in Commission v Ireland.
+Nor did Advocate General Sharpston consider that the European Court had done so.
+In her opinion in Commission v France, para 50, she said this: 50.
+It is true that the Court has consistently held that the right of individuals to rely on directly effective provisions of the Treaty before national courts is only a minimum guarantee and is not sufficient in itself to ensure the full and complete implementation of the Treaty. (34) It is likewise established that, in order to guarantee legal certainty, Member States must create a legal situation that is sufficiently precise, clear and foreseeable to enable individuals to ascertain their rights and obligations. (35) Her endnote 35 referred in support of the second sentence to paragraph 61 in Commission v Ireland and the case law cited there.
+When considering what test may be appropriate, some relevance might be suggested to attach to the relief available for any infringement of the principles of effectiveness and legal certainty.
+If the only remedy is against the State for introducing a law which is uncertain in its impact, that might make it easier to accept a broader principle of certainty than if the remedy is, as claimed by the present appeal, against the other party to civil litigation.
+But that approach is of no assistance to BCL on this appeal, in which the State is not involved.
+Mr Vajdas case is that a party in BASFs shoes can establish its right to rely on a time bar under national law, by a decision which BCL can no longer challenge as a matter of national law, and yet fail because the State had not left it clear beyond doubt what the legal position regarding limitation was at the time when the limitation period was (as now established) running.
+If that were the European legal position (which I do not believe it is: see paragraphs 44 to 47 below), it might militate in favour of a narrow view of the principle of legal certainty.
+For present purposes, however, I shall ignore any such argument in favour of a narrower principle of effectiveness and legal certainty, but at the same time ignore the fact that BASF is distinct from and may not be answerable for any failings of the State.
+On this basis, the considerations which I have so far identified lead me to conclude that the English language text of paragraph 57 should not be taken literally or read out of context.
+The Court cannot have intended to substitute a new test for the well established test of excessive difficulty which applies where the legal position was not sufficiently clear and precise, ascertainable with a reasonable degree of certainty or reasonably foreseeable.
+The European Court of Justices judgment in Commission v Ireland must be read as a whole.
+So read, I do not consider that there is any doubt about the appropriate test or any need to refer a question to the Court of Justice on it.
+I add that, as will appear, even if one were to adopt a simple test of clarity, it would not change the outcome of this appeal.
+In reality, however, any distinction between on the one hand clarity and on the other sufficient or reasonable clarity is elusive.
+At the high point of his submissions, Mr Vajda was in effect arguing for absolute certainty, beyond any doubt, as a test.
+But, as Oliver Wendell Holmes once said, Certainty generally is illusion, and repose is not the destiny of man.
+The true test is more flexible and more reflective of the real world.
+Mr Brealey QC for BASF also referred to decisions of the European Court of Human Rights on the concepts of right of access to a court, rules prescribed by law and legal certainty.
+It is not necessary for the opinion which I have formed to rely on the reasoning in these decisions.
+But I agree that they are of interest, in showing how that Court understands concepts which one would expect to parallel those adopted in Luxembourg regarding legal effectiveness and certainty.
+In Stubbings v United Kingdom (1996) 23 EHRR 213, the Court of Human Rights accepted as unproblematic a decision of the House of Lords (Stubbings v Webb [1993] AC 498) overruling the Court of Appeal on a difficult limitation point and interpreting the fixed six year time limit under section 2 of the Limitation Act 1980 as applicable to deliberate assaults including rape and indecent assault committed against a child. (The difficulty is evidenced by the fact that, 15 years later, the House departed from this decision and held instead in A v Hoare [2008] AC 844 that deliberate torts fell within the flexible knowledge based rule in section 11.)
+In Sunday Times v United Kingdom (1979) 2 EHRR 245 the newspaper submitted that the English law of contempt was too vague and uncertain, and its extension by some members of the House of Lords to public prejudgement of the outcome of proceedings novel, to the extent that it was not reasonably foreseeable or therefore prescribed by law within Article 10 of the Convention.
+The Court of Human Rights said that: 49.
+In the Court's opinion, the following are two of the requirements that flow from the expression 'prescribed by law'.
+First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case.
+Secondly, a norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able if need be with appropriate advice to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.
+Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable.
+Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances.
+Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.
+In the upshot the submission of uncertainty was rejected, with the Court saying: 52.
+To sum up, the Court does not consider that the applicants were without an indication that was adequate in the circumstances of the existence of the 'prejudgment principle'.
+Even if the Court does have certain doubts concerning the precision with which that principle was formulated at the relevant time, it considers that the applicants were able to foresee, to a degree that was reasonable in the circumstances, a risk that publication of the draft article might fall foul of the principle.
+The further cases of Vogt v Germany (1995) 21 EHRR 205 and Sahin v Turkey (2005) 44 EHRR 99 contain statements by the Court of Human Rights confirming that the mere fact that a legal provision is capable of more than one construction does not mean that it does not meet the requirement implied in the notion prescribed by law (Vogt, para 48) or that it fails to meet the requirement of foreseeability for the purposes of the Convention (Sahin, para 91).
+In my opinion, the approach of the Court of Human Rights confirms the view which I consider that the Court of Justice would take in relation to suggestions that the existence of arguable doubt or of a need for interpretation is of itself sufficient to render national law insufficiently foreseeable or to make it excessively difficult for the subjects of the law to know their position.
+Was the commencement of the limitation period sufficiently foreseeable?
+Taking the statutory provisions by themselves, I have no doubt about the answer to the question whether the commencement of the two year limitation period was sufficiently foreseeable.
+The Court of Appeals analysis was impeccable and it was in my opinion well justified in speaking of the plain and ordinary meaning of the statutory language and of the legal position as clear.
+The Competition Act uses throughout clear language, speaking repeatedly of a decision . that the [or a] prohibition has been infringed: see e.g. sections 31, 32, 36, 46 and 47A.
+Such a decision is explicitly distinguished in section 36(1) from a requirement imposed by the OFT on an undertaking which is a party to the agreement to pay the OFT a penalty in respect of the infringement and in section 46(3)(i) from a decision . as to the imposition of any penalty under section 36 or as to the amount of any such penalty.
+On a correct reading, an appeal to the Court of First Instance (now the General Court) will take issue with either or both of the decisions on infringement and on penalty.
+It is a question of analysis which it does.
+If an appeal which is nominally directed only against the penalty levied in fact takes issue with the existence or nature of the infringement, it may involve an appeal against infringement as well penalty.
+In the present case, it is accepted that BASFs appeal was against, and only against, the fine imposed on it.
+Mr Vajda showed us the summary of the nature of BASFs appeal published in the Official Journal on 4 May 2002 (which was not apparently put before the Court of Appeal), and suggested that it left unclear the actual nature of the appeal.
+But he confirmed that he did not seek to raise any new suggestion to the effect that BCL had been misled on that score, and also that he did not challenge the finding of fact made by the Tribunal on 19 November 2009 that (para 29) BCL knew that BASF was not challenging the finding of infringement in its appeal to the Court of First Instance.
+The Official Journal summary was relied upon simply as forensic support for BCLs case that the line between decisions on infringement and penalty can be unclear with the implication that it could not have been envisaged with any certainty that the Competition Act and Rules drew such a line.
+On this, I would disagree.
+The Act and Rules were and are to my mind clear in drawing that precise distinction.
+Whatever the issues that might arise in particular cases as to whether there had been an appeal against liability as well as penalty, there is no suggestion in the present case that BASF did in fact appeal against liability or that BCL was misled into thinking that it had.
+I am also unimpressed by BCLs reliance on the fact that it did not itself commence legal proceedings either in the High Court or before the Tribunal within what has been established to have been the available limitation period.
+An individual partys conduct cannot serve as an assay of the clarity or otherwise of statutory provisions.
+In any event, the account of the relevant thinking and of the advice which is said to have led to it is so exiguous and to some extent puzzling that I could not attach to it any real significance in this context.
+But Mr Vajda also points to a number of Tribunal decisions, some of which he submits reached conclusions or pointed in an opposite sense to those now established as correct.
+The first is Emerson Electric Co v Morgan Crucible Company plc [2007] CAT 28, which followed from a Commission decision dated 3 December 2003 establishing an infringement involving six concerns.
+Three of the concerns (SGL Carbon AG, Schunk GmbH and Schunk Kohlenstofftechnik GmbH and Le Carbone Lorraine SA SGL, Schunk and Carbone) lodged appeals with the Court of First Instance, seeking annulment of the Decision and/or cancellation or reduction of the fine imposed.
+Morgan Crucible, the whistle blower which had been granted immunity from any fine, lodged no appeal.
+On 9 February 2007 Emerson, an alleged victim of the cartel, made a claim for damages against Morgan Crucible in the Tribunal at a time when the appeals by the other cartel members were still outstanding.
+The Tribunal (Marion Simmons QC, Adam Scott TD and Vindelyn Smith Hillman) held on 17 October 2007 that the two year limitation period under section 47A(8)(b) had not yet commenced, because (para 64): the phrase if any such [EC] proceedings are instituted in subsection (8) clearly indicates that as long as any proceedings have been brought in the European Court, permission of the Tribunal is required to bring a monetary claim under section 47A.
+It also said (paras 70 71) that the word decision in section 47A(8) could not be read in a restrictive sense as referring to that part of [it] which is the subject of the appeal to the [European Court], rather than to the whole of the Commissions decision.
+The proceedings against Morgan Crucible were, on this basis, premature, unless Tribunal permission could be obtained for their early pursuit under section 47A(5)(b).
+But the Tribunal also considered, on an opposite hypothesis and assuming the two year limitation period to have expired, whether the Tribunal had power to extend the time for commencement of proceedings.
+It expressed the view obiter that it did, under Rule 19(2)(i).
+The Tribunal decision of 28 April 2008 recites ([2008] CAT 8, para 4) that permission was then granted to the Emerson claimants under section 47A(5)(b) to bring premature proceedings against Morgan Crucible.
+Permission was also sought to bring such proceedings against SGL, Schunk and Carbone.
+It was submitted that their outstanding appeals were, in fact, merely against the level of the fines imposed.
+The Tribunal in its decision of 28 April 2008 proceeded on the basis that the appeals appear to be primarily concerned with the imposition and/or level of the fine imposed by the Commission (para 90) and that the facts upon which the Commission had based its statement of objections (the original complaint regarding the existence of a cartel) were substantially uncontested (para 93).
+But it noted that there were challenges to the scope of the infringement found by the Commission which could affect the damages claims (paras 90 91) and considered it impossible to draw a bright line between different appeals against an infringement decision, saying that each case must depend on its facts (para 88).
+On the facts before it, it refused permission to the Emerson claimants to bring early proceedings against SGL, Schunk and Carbone.
+At a later date, 17 October 2008, the Tribunal (with Barling J in the chair instead of Marion Simmons QC, who had in the meantime sadly died) ordered that the Emerson claimants should pay 50% of the defendants costs incurred by the claimants unsuccessful applications: [2008] CAT 28.
+On 25 September 2008 the present case came before the Tribunal in a different composition consisting of Barling J, Ann Kelly and Michael Davey [2008] CAT 24 for determination of the issue whether the two year period for commencement of BCLs claim had begun to run at the end of January 2002 (the last date for an appeal by BASF against the Commissions decision that it had infringed Article 81) or whether its commencement was postponed until BASFs appeal against the fine imposed on it was determined on 15 March 2006.
+In the former case the claim brought by BCL against BASF on 12 March 2008 was out of time, in the latter case it was in time.
+The Tribunal took the latter view, pointing again to the possibility that an appeal on the level of fine might be relevant to and determined by the nature and extent of the infringement being penalized (paras 34 37).
+It found reinforcement for its view in the previous Tribunal decisions in Emerson Electric.
+On 22 May 2009 the Court of Appeal reversed the Tribunals decision of 25 September 2008: paragraphs 4 and 7 above.
+On 12 November 2010 the Court of Appeal held that the Tribunal did not have the power to extend time for the commencement of proceedings which had been assumed by the Tribunal when it refused on the facts to exercise any such power on 19 November 2009: paragraphs 4 and 8 above.
+The domestic legal position resulting from the course of events outlined in paragraphs 32 to 36 is now unchallenged and unchallengeable.
+But it took time and a process of appeals to reach this position.
+Does that mean that English law lacked the requisite legal certainty, that its requirements or effect were not sufficiently foreseeable or that it was excessively difficult for BCL to take advantage of the possibility of making a claim for damages against BASF? The first point to note is that the line of decisions which I have identified began on 17 October 2007 with the first Emerson decision by the CAT.
+By then the two year period for a claim for damages before the Tribunal was long expired (on 31 January 2004).
+There remained just over a month of the six year period for the bringing of a High Court claim for damages, a course which BCL do not in fact appear at any stage to have contemplated.
+There is no suggestion that BCL considered or relied upon the first Emerson Electric decision in the period between 17 October and 21 November 2007.
+Nor could they sensibly have done so.
+The Tribunal in Emerson Electric was not directly addressing the present issue, which is whether the decision of the Commission referred to in section 47A(8) includes both its decision on infringement and any decision on fine.
+Further, the Tribunals decision, on the point which it had to decide, was, in the Courts view, erroneous and at the very least obviously vulnerable to challenge on appeal.
+The word any has and can have no such general significance as the Tribunal appears to have attached to it.
+Either the decision establishing that the relevant prohibition has been infringed refers to the particular proposed defendant (so that an appeal by another concern against the finding of infringement is irrelevant) or it refers to all concerns implicated in the alleged infringement (in which case an appeal by one may postpone the time for a follow on claim for damages against another who has not appealed).
+The Court of Appeal in Deutsche Bahn AG v Morgan Crucible Co plc [2012] EWCA Civ 1055, after close consideration of these alternative analyses, came down firmly in favour of the latter.
+The Supreme Court, as noted in paragraph 7 above, has not heard submissions on this conclusion.
+It was not relevant to do so.
+What is unchallenged and unchallengeable is that an appeal by an involved concern against a fine alone is not in any sense a relevant appeal which can postpone the time for a follow on claim against that (or any other) concern which has not appealed against the finding of infringement made against it.
+The Tribunal decisions considered in paragraphs 32 to 38 above were irrelevant to BCLs actual conduct.
+But do they demonstrate objectively the existence of such uncertainty in English law as to infringe the relevant European legal principles? Clearly, it is unfortunate if Competition Appeal Tribunals arrive at conclusions on the commencement of a limitation period and on the power to grant an extension of time which are held erroneous on appeal to the Court of Appeal.
+But an appellate system is there to remedy error and to establish the correct legal position.
+I do not accept that its ordinary operation is the hallmark of a lack of legal certainty or effectiveness.
+The language and effect of the Competition Act were subsequently, and rightly, held by the Court of Appeal to be clear.
+The Emerson Electric and BCL Tribunals gave the words any and decision significance which they could not bear.
+They also failed to interpret section 47A in the context of the statute and its other sections read as a whole.
+It was by any standard readily foreseeable that an opposite view would be taken on appeal.
+The Tribunal decisions do not in my view lead to a conclusion that English law was insufficiently certain or that it made the bringing of a claim in time excessively difficult.
+At the very least, the risks of not bringing proceedings against BASF by 31 January 2004 were or should have been evident.
+These conclusions are sufficient to resolve the present appeal so far as it relates to the alleged uncertainty of the starting date of the two year limitation period.
+But I add that it was also open to BCL to issue Tribunal proceedings, and, if they were held to be premature, to request the Tribunals permission for their early commencement under section 47A(8)(b).
+Mr Vajda pointed in this connection to the costs order made against the Emerson claimants on 17 October 2008 following their unsuccessful application to begin early proceedings against SGL, Schunk and Carbone.
+But that was long after the expiry of all limitation periods in the present case.
+The reality is that, if BCL had in January 2004 taken the steps to protect its position which one would have expected, it would not have confined itself to an application to bring early proceedings under section 47A(8)(b), but would have maintained that the two year period for proceedings against BASF had begun in January 2002, and would, if necessary, have pursued that point to the Court of Appeal, where it would have won upon it.
+Was the lack of any power to extend sufficiently foreseeable?
+Again, I have no doubt that it was.
+Part II of the Competition Appeal Tribunal Rules deals with appeals to the Tribunal.
+Within Part II, Rule 19 headed Directions is the first in a block of rules headed Case management.
+Its entire subject matter is directed to the management of proceedings which are on foot and being pursued.
+In that context it is plain that it says nothing about the commencement of proceedings.
+The reference to directions . as to the abridgement or extension of any time limits, whether or not expired says nothing to indicate that it could cover time limits for the commencement of proceedings.
+The fact that it refers to abridgement as well as extension of time does however underline the implausibility of its suggested application to time limits for commencing the proceedings in which Rule 19 allowed directions to be given.
+Abridgement occurs in the course of proceedings.
+It is inconceivable that the time for commencement of proceedings could be abridged.
+Just as, if not more, significantly, the topic of commencement of proceedings is in Part II covered in another block of rules, of which Rule 8(2) expressly permits the extension of the time limit for appeal proceedings in circumstances shown to the Tribunal to be exceptional.
+Part IV headed Claims for damages incorporates by reference Rule 19 by virtue of both Rule 30 and Rule 44, which is the first of another block of rules headed Case management.
+Rule 44 makes no mention of Rule 8.
+Rule 30 makes expressly clear that Rule 8 is not applicable to Part IV claims for damages, and there is no equivalent power to extend in Part IV.
+Accordingly, it is plain that the Secretary of State in making the Rules deliberately decided that there should be no power to extend time for the commencement of claims for damages in, as opposed to appeals to, the Tribunal.
+The Tribunals contrary view was first expressed in Emerson Electric on 17 October 2007.
+It was understandably asserted to be correct by BCL before the Court of Appeal in April/May 2009, and Richards LJs judgment adopts that assumption, which was in turn adopted by the Tribunal in BCL on 19 November 2009.
+But, when the point was argued, the Court of Appeal held the contrary, noting the points which I have already made, and various other points.
+In my opinion, it is impossible to suggest that this interpretation of the Rules was not sufficiently foreseeable or clear.
+Again, the fact that a Tribunal arrives at an erroneous conclusion which is corrected on appeal cannot mean that the law is uncertain to a point making it excessively difficult to take advantage of its provisions.
+Again, it is not and could not be suggested that the Tribunals decision of 17 October 2007 was instrumental in any course of action which BCL actually did or did not take.
+For these reasons, I reject BCLs case that the English legal position regarding the commencement of the relevant two year period for a claim for damages under section 47A and Rule 31 of the Competition Appeal Tribunal Rules and regarding the possibility of seeking an extension of time were insufficiently foreseeable or clear and made it excessively difficult for BCL to commence and pursue such a claim in time.
+In my view, the contrary is the case.
+Absolute certainty is not the test, but it was eminently and sufficiently foreseeable that the English legal position would be established on both points to the effect which the Court of Appeal held.
+I would, if necessary, also go further and, in company with the Court of Appeal, describe the legal position as clear on a careful reading of the relevant Act and Rules.
+It is for the domestic court to determine whether, in the particular legal and factual situation, the principles of effectiveness and legal certainty were satisfied: Danske Slagterier, para 34, cited in paragraph 12 above.
+In my view, they were here.
+There is therefore no basis for any reference to the Court of Justice on this aspect.
+BCLs appeal in these circumstances fails and must be dismissed.
+Appropriate relief where the principles of effectiveness and legal certainty are
+breached
+It is unnecessary, in the light of the above, to decide what relief might have been appropriate, had the conclusion been that the principles of effectiveness and/or legal certainty had in any respect been breached.
+However, I shall briefly address this subject.
+If the effect of a statute made by Parliament and of a statutory instrument made by the Secretary of State under statute is unclear in a way which breaches the European legal principle of effectiveness or legal certainty, the State is in breach of its European legal obligations, and liable accordingly, as Commission v Ireland illustrates.
+It is quite another matter to suggest that another party to civil litigation is deprived of the right to rely upon legal provisions which, once construed in a manner resolving any uncertainty, are shown to exist for their benefit.
+That the party sued was a member of a cartel infringing Article 81 does not alter its prima facie entitlement to rely upon any limitation period contained in the relevant legislation.
+Limitation periods are periods of repose intended to benefit those who are liable as well as the entirely innocent.
+Otherwise, they would have no point, and it would always be necessary to try every case.
+I find it impossible to think that European law requires the setting aside as between civil parties of a limitation defence, which a defendant, who is independent of the State, has successfully established under domestic law, on the ground that its existence or scope under domestic law was uncertain until the court decision establishing it.
+For a successful party other than the State to be deprived in this way of the fruits of victory on limitation would mean that there was little point in raising the limitation defence in the first place.
+No one would then ever know with clarity what the true legal position was.
+The national limitation period would be deprived of effectiveness and national law of legal certainty.
+Some confirmation that this is not the European legal position is, I think, also provided by the nature of the proceedings and the decision in Commission v Ireland itself.
+The Commission there brought proceedings against Ireland because of the application of a limitation provision of previously uncertain effect in proceedings between SIAC and the NRA, a statutory body.
+The complaint was not that the Irish courts acted contrary to European law in giving effect to the limitation provision.
+But it should have been, were it the European legal position that legal uncertainty invalidates a limitation period as between parties to civil litigation, as Mr Vajda contends.
+The judgment did not proceed on that basis either.
+Rather, it, like the complaint, accepted the validity as between the parties of the limitation provision in the sense determined by the Irish High Court.
+But it declared the Irish State to be in breach of the Directives dealing with public works and remedies by maintaining in force Order 84A(4) of the Rules of the Superior Courts . in so far as it gives rise to uncertainty as to which decision must be challenged through legal proceedings and as to how periods for bringing an action are to be determined.
+The limitation provision was, in short, treated as valid between the parties, but the State was in breach for maintaining it in force in uncertain terms.
+On this basis, if (contrary to my view) BCL were to have any complaint, it would lie against the United Kingdom, and not affect BASFs right to rely upon the limitation period to which it has established its entitlement in the Court of Appeal in the present proceedings.
+While it does not arise, I would, if necessary, have regarded this point as sufficiently free of any reasonable doubt to be acte clair and inappropriate for reference to the Court of Justice.
+Conclusion
+Part I of the Competition Act 1998 prohibits by section 2 agreements between undertakings or decisions or concerted practices of undertakings which affect trade and have as their object or effect the prevention, restriction or distortion of competition within the UK (the Chapter I prohibition) while section 18 prohibits abuse of dominant position (the Chapter II prohibition).
+Under section 25, contained in Chapter III of Part I of the Act, the Office of Fair Trading (OFT) was given power to investigate any such agreement as was mentioned in section 2, as well as any agreement which may affect trade between European Community Member States and have as its object or effect the prevention, restriction or distortion of competition within the Community, while section 31 defines a decision made as a result of any such investigation as meaning a decision of the OFT that a Chapter I or II prohibition or the prohibition in Article 81(1) or 82 has been infringed.
+The Act continues: 32(1) If the OFT has made a decision that an agreement infringes the Chapter I prohibition or that it infringes the prohibition in Article 81(1), it may give to such person or persons as it considers appropriate such directions as it considers appropriate to bring the infringement to an end. 36(1) On making a decision that an agreement has infringed the Chapter I prohibition or that it has infringed the prohibition in Article 81(1), the OFT may require an undertaking which is a party to the agreement to pay the OFT a penalty in respect of the infringement.
+Chapter IV, containing sections 45 to 49 of the Act, includes section 46 permitting any party to an agreement in respect of which the OFT has made a decision to appeal to the Tribunal against, or with respect to, the decision, and defines decision as follows: (3) In this section decision means a decision of the OFT (a) as to whether the Chapter I prohibition has been infringed, (b) as to whether the prohibition in Article 81(1) has been infringed, (c) as to whether the Chapter II prohibition has been infringed, (d) as to whether the prohibition in Article 82 has been infringed, (e) cancelling a block or parallel exemption, (f) withdrawing the benefit of a regulation of the Commission pursuant to Article 29(2) of the EC Competition Regulation, (g) not releasing commitments pursuant to a request made under section 31A(4)(b)(i), (h) releasing commitments under section 31A(4)(b)(ii), (i) as to the imposition of any penalty under section 36 or as to the amount of any such penalty, and includes a direction under section 32, 33 or 35 and such other decisions under this Part as may be prescribed. 2.
+Section 47A of the Competition Act 1998 applies, by virtue of subsection (1), to any claim for damages as a result of the infringement of a relevant prohibition.
+Subsection (3) then disapplies any limitation period that would apply in court proceedings, while subsection (4) provides for a claim to which section 47A applies to be made in proceedings brought before the Tribunal, subject to this time limit: (5) But no claim may be made in such proceedings (a) until a decision mentioned in subsection (6) has established that the relevant prohibition in question has been infringed; and (b) otherwise than with the permission of the Tribunal, during any period specified in subsection (7) or (8) which relates to that decision. 3.
+Subsection (6) lists various categories of decision by the OFT, the Tribunal or the European Commission that a specified prohibition . has been infringed (or, in one case involving the Commission, a finding made).
+The relevant provision for present purposes is in subsection (6)(d): a decision of the European Commission that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed.
+Subsections (7) and (8) identify various periods during which one or more appeals may be made in relation to the various categories of decision listed in subsection (6), and during which any claim for damages under section 47A depends accordingly, under subsection (5)(b), on the Tribunals permission for its pursuit.
+Subsection (8) is presently relevant: (8) The periods during which proceedings in respect of a claim made in reliance on a decision or finding of the European Commission may not be brought without permission are (a) the period during which proceedings against the decision or finding may be instituted in the European Court; and (b) if any such proceedings are instituted, the period before those proceedings are determined.
+Subsection (9) provides that, in determining any claim under section 47A the Tribunal is bound by any decision mentioned in subsection (6) which establishes that the prohibition in question has been infringed. 4.
+The Competition Appeal Tribunal Rules 2003, which came into force under, and on the same day (20 June 2003) as, section 47A of, the Competition Act 1998 read: PART IV CLAIMS FOR DAMAGES Application of rules to claims for damages 30.
+The rules applicable to proceedings under sections 47 A and 47B of the 1998 Act (claims for damages) are those set out in this Part, and in Part I, Part II (except for rules 8 to 16) and Part V of these rules.
+COMMENCEMENT OF PROCEEDINGS Time limit for making a claim for damages 31. (1) A claim for damages must be made within a period of two years beginning with the relevant date. (2) The relevant date for the purposes of paragraph (1) is the later of the following (a) the end of the period specified in section 47A(7) or (8) of the 1998 Act in relation to the decision on the basis of which the claim is made; (b) the date on which the cause of action accrued.
+CASE MANAGEMENT Case management generally 44. (1) In determining claims for damages the Tribunal shall actively exercise the Tribunal's powers set out in rules 17 ., 18., 19 (Directions) . 5.
+Rule 19 appears in Part II of the Rules headed Appeals and dealing with appeals to the Tribunal.
+The initial block of Rules in Part II is headed Commencing Appeal Proceedings, and it commences with rule 8(1).
+Rule 8(1) requires any appeal to be made within two months of notification or publication of the disputed decision and Rule 8(2) continues: The Tribunal may not extend the time limit provided under paragraph (1) unless it is satisfied that the circumstances are exceptional.
+Rule 19 is the first in a block of rules headed Case Management.
+It provides: Directions 19. (1) The Tribunal may at any time, on the request of a party or of its own initiative, at a case management conference, pre hearing review or otherwise, give such directions as are provided for in paragraph (2) below or such other directions as it thinks fit to secure the just, expeditious and economical conduct of the proceedings. (2) The Tribunal may give directions (a) as to the manner in which the proceedings are to be conducted, including any time limits to be observed in the conduct of the oral hearing; (b) that the parties file a reply, rejoinder or other additional pleadings or particulars; (c) for the preparation and exchange of skeleton arguments; (d) requiring persons to attend and give evidence or to produce documents; (e) as to the evidence which may be required or admitted in proceedings before the Tribunal and the extent to which it shall be oral or written; (f) as to the submission in advance of a hearing of any witness statements or expert reports; (g) as to the examination or cross examination of witnesses; (h) as to the fixing of time limits with respect to any aspect of the proceedings; (i) as to the abridgement or extension of any time limits, whether or not expired; (j) to enable a disputed decision to be referred back in whole or in part to the person by whom it was taken; (k) for the disclosure between, or the production by, the parties of documents or classes of documents; (l) for the appointment and instruction of experts, whether by the Tribunal or by the parties and the manner in which expert evidence is to be given; (m) for the award of costs or expenses, including any allowances payable to persons in connection with their attendance before the Tribunal; and (n) for hearing a person who is not a party where, in any proceedings, it is proposed to make an order or give a direction in relation to that person. (3) The Tribunal may, in particular, of its own initiative (a) put questions to the parties; (b) invite the parties to make written or oral submissions on certain aspects of the proceedings; (c) ask the parties or third parties for information or particulars; (d) ask for documents or any papers relating to the case to be produced; (e) summon the parties' representatives or the parties in person to meetings.
+For these reasons, I would dismiss BCLs appeal.
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+It is rare for the Supreme Court to entertain an appeal that relates exclusively to costs, but this appeal raises an important issue of principle in relation to the liability of a local authority to pay the costs of a party to care proceedings.
+The proceedings related to two children, whose parents were separated.
+The children made allegations of sexual abuse by their father and six other men in which the fathers parents (the grandparents) had colluded.
+These allegations were included by the appellant (the Council) in the schedule of matters relied upon in the care proceedings as meeting the threshold criteria for a care order under section 31(2) of the Children Act 1989.
+The grandparents were joined as interveners, as were five of the six men.
+The judge conducted a discrete fact finding hearing which occupied a total of five and a half weeks between February and December 2009.
+The lengthy findings that he then made exonerated the grandparents and five of the other six interveners.
+Four of the five men who intervened qualified for legal aid (the fifth represented himself), but the grandparents relatively modest income disentitled them from this.
+The grandfather was aged 67.
+He is a retired fireman.
+The grandmother was aged 63 and worked, as she still does, as a part time bookkeeper.
+His pension and her earnings together amount to about 25,000 a year.
+The grandparents borrowed 55,000 from a building society, of which they spent 52,000 on legal advice and representation at the hearing.
+They cannot hope to pay this off in less than 15 years.
+In these circumstances the grandparents applied for an order that the Council pay their costs.
+It was and is common ground that the Council could not be criticised for advancing in the care proceedings the allegations made against the grandparents.
+The judge, His Honour Judge Dowse, summarised the basis of their application for costs as based on the apparently inequitable fact that they have largely succeeded in defending the allegations made against them but must bear their own costs.
+The judge dismissed their application.
+He did so on the basis that it was not usual to order costs in a child case against a party unless that partys conduct has been reprehensible or its stance unreasonable.
+In support of that proposition the judge cited authorities that included the judgments of Wilson J in Sutton London Borough Council v Davis (No 2) [1994] 1 WLR 1317 and Wilson LJ in In re J (Costs of Fact Finding Hearing) [2009] EWCA Civ 1350; [2010] 1 FLR 1893.
+The judge expressed the view that it was unacceptable that more and more people in the position of the grandparents were faced with potentially life changing allegations without being able to gain some financial assistance from the State.
+The grandparents appealed to the Court of Appeal, consisting of Wilson and Munby LJJ and Coleridge J.
+The appeal was allowed: [2010] EWCA Civ 1585.
+Wilson LJ gave the leading judgment.
+He held that Judge Dowse had failed to appreciate the true purport of his judgment in In re J, which was favourable rather than adverse to the grandparents application for costs.
+Permission to appeal to this Court was given on terms that, whatever the result, the grandparents entitlement to recover their costs from the Council would not be disturbed.
+Permission to intervene was granted to the Children and Family Court Advisory and Support Service (CAFCASS) and to the Grandparents Association.
+It is a remarkable fact, and ironic in an appeal about costs, that all counsel are appearing pro bono.
+We would like to express our gratitude for the assistance that they have given.
+The Family Procedure Rules 2010
+On 6 April 2011 the Family Procedure Rules 2010 (SI 2010/2955) (FPR) came into force.
+They apply to family proceedings in the High Court, County Courts and Magistrates Courts.
+Part 28 deals with costs.
+It is common ground that Part 28 of FPR consolidates the previous law relating to costs, including the relevant provisions of the Family Proceedings Rules 1991 (SI 1991/1247) and that it does not change the law in relation to costs that is applicable to this appeal.
+In these circumstances it is sensible to consider the issues raised by this appeal within the context of those Rules.
+objective, which is defined in FPR 1.1, which provides: FPR 1.2, which is new, requires the court to give effect to the overriding 1.1 The overriding objective (1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved. (2) Dealing with a case justly includes, so far as is practicable (a) ensuring that it is dealt with expeditiously and fairly; (b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues; (c) ensuring that the parties are on an equal footing; (d) saving expense; and (e) allotting to it an appropriate share of the courts resources, while taking into account the need to allot resources to other cases.
+FPR 28.3 makes special provision for costs in financial remedy proceedings.
+Paragraph (5) provides that the general rule in financial remedy proceedings is that the court will not make an order requiring one party to pay the costs of another party.
+This is subject to paragraph (6) which permits the court to make such an order when it considers it appropriate to do so because of the conduct of a party in relation to the proceedings.
+Paragraph (5) is a particular example of the departure in family proceedings from the general rule applicable in civil proceedings that the unsuccessful party will be ordered to pay the costs of the successful party: CPR 44.3(2)(a).
+FPR 28.1 provides that The court may at any time make such order as to costs as it thinks just.
+This is not an unfettered discretion, for FPR 28.2 makes applicable to family proceedings, other than financial remedy proceedings, the majority of the rules in relation to costs of the CPR.
+The most significant of the rules excluded is the general rule that costs follow the event, quoted above in CPR 44.3(2).
+In the context of this appeal, the most relevant of the rules that are applicable are included in the following provisions of CPR 44.3: (4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including (a) the conduct of all the parties; (b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and (c) any payment into court or admissible offer to settle made by a party which is drawn to the courts attention, and which is not an offer to which costs consequences under Part 36 apply. (5) The conduct of the parties includes (a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction (Pre Action Conduct) or any relevant pre action protocol; (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (c) the manner in which a party has pursued or defended his case or a particular allegation or issue; and (d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim.
+(4)(b) is relevant in relation to a regime where the general rule in (2)(a) applies.
+For this reason we do not see that it has any direct relevance to family proceedings. (4)(c) can have no relevance to public law proceedings and can thus be disregarded in the present case.
+The other rules are simply examples of circumstances that will be relevant when considering the result that justice requires in the individual case.
+In family proceedings, however, there are usually special considerations that militate against the approach that is appropriate in other kinds of adversarial civil litigation.
+This is particularly true where the interests of a child are at stake.
+This explains why it is common in family proceedings, and usual in proceedings involving a child, for no order to be made in relation to costs.
+The reasons for departing from the principle that costs normally follow the event differ, however, depending upon the nature of the family proceedings.
+On this appeal it is necessary to identify the policy considerations that should inform the approach to costs that is required in the interests of justice in care proceedings.
+Reasons for making no order for costs in family proceedings that are not relevant
+in the present case
+The Court has been referred to a number of authorities dealing with costs in family proceedings.
+In order to see the wood from the trees it is helpful to remove from the forest the timber that does not bear on the issues raised by this appeal.
+The following reasons for not awarding costs in family proceedings are not relevant: i) In ancillary relief proceedings each partys liability for costs will be taken into consideration when making the substantive award.
+This approach has the advantage of discouraging the parties from running up unnecessary costs see Baker v Rowe [2009] EWCA Civ 1162; [2010] 1 FCR 413, paras 20 to 23 per Wilson LJ. iii) ii) Orders for costs between the parties will diminish the funds available to meet the needs of the family see Gojkovic v Gojkovic [1992] Fam 40, 57, per Butler Sloss LJ and R v R (Costs: Child Case) [1997] 2 FLR 95, 97, per Hale J. (This could, of course, be a good reason not to award costs against a family member in care proceedings).
+It is undesirable to award costs where this will exacerbate feelings between two parents, or more generally between relations, to the ultimate detriment of the child: see B (M) v B (R) (Note) [1968] 1 WLR 1182, 1185 per Willmer LJ; Sutton London Borough Council v Davis (No 2) [1994] 1 WLR 1317, 1319 per Wilson J. (Once again this could be a good reason not to award costs against a family member).
+Unreasonable conduct
+CPR 44.3(5) is as relevant in care cases as it is in other kinds of family proceedings.
+Where a local authority has caused costs to be incurred by acting in a way which was unreasonable justice may well require that the local authority pay the costs in question.
+Examples of such cases include: In re R (Care: Disclosure: Nature of Proceedings) [2002] 1 FLR 755; In re X (Emergency Protection Orders) [2006] 2 FLR 701; Coventry City Council v X, Y and Z (Care Proceedings: Costs) [2011] 1 FLR 1045.
+The principle underlying these decisions has no relevance to the present case, for it has not been suggested that the conduct of the local authority was in any respect unreasonable.
+Precedent
+CAFCASS have submitted that this case is the first occasion upon which a local authority has been ordered to pay costs in public law proceedings in the absence of any criticism of its conduct.
+CAFCASS is well placed to make that submission and no case to the contrary has been cited to us.
+In In re M (Local Authoritys Costs) [1995] 1 FLR 533 a local authority applied for permission to refuse contact between two children and their parents.
+The magistrates refused the application and ordered the local authority to pay the fathers costs.
+On appeal Cazalet J set aside that order, holding that there should be no order as to costs.
+Citing the decision of Wilson J in Sutton London Borough Council v Davis he observed at p 541 that it would be unusual for a court to make an order for costs in a child case where a partys conduct had not been reprehensible or that partys stance had not been beyond the band of what was reasonable.
+He added at p 544: As a matter of public policy it seems to me that where there is the exercise of [a] nicely balanced judgment to be made by a local authority carrying out its statutory duties, the local authority should not feel that it is liable to be condemned in costs if, despite acting within the band of reasonableness (to adopt the words of Wilson J), it may form a different view to that which a court may ultimately adopt.
+The reasoning of the Court of Appeal
+The chain of reasoning of Wilson LJ in this case has its origin in his decision in Sutton London Borough Council v Davis.
+The local authority had refused to register a childminder, who successfully appealed to the magistrates, who awarded costs in her favour.
+The local authority appealed against the costs order.
+In doing so the authority urged the court to apply, by analogy, the principle that costs are not usually ordered in child cases.
+Wilson J accepted that this was a proposition applied for many years in the Family Division.
+He gave the following explanation for that proposition at p 1319: Where the debate surrounds the future of a child, the proceedings are partly inquisitorial and the aspiration is that in their outcome the child is the winner and indeed the only winner.
+The court does not wish the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate.
+Nor does it wish to reduce the chance of their co operation around the future life of the child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them.
+The proposition applies in its fullest form to proceedings between parents and other relations; but it also applies to proceedings to which a local authority are a party.
+Thus, even when a local authoritys application for a care order is dismissed, it is unusual to order them to pay the costs of the other parties.
+But the proposition is not applied where, for example, the conduct of a party has been reprehensible or the partys stance has been beyond the band of what is reasonable: Havering London Borough Council v S [1986] 1 FLR 489 and Gojkovic v Gojkovic [1992] Fam 40, 60C D.
+Wilson J then dealt with the facts.
+He observed that the local authority had erred in concluding that the respondent was not fit to mind children, but held that their stance in relation to Mrs Davis was neither reprehensible nor unreasonable.
+Wilson J went on to reject the analogy with care proceedings, and dismissed the appeal.
+His reasons at pp 1319 1320 were as follows: In care proceedings the local authority and all other parties come into court in order to assist it in choosing the programme for the childs future which will best serve his or her welfare.
+In the case of Mrs Davis the local authority made an incorrect decision as to her fitness.
+She had a right to be registered and they infringed it.
+Mrs Davis afforded them the opportunity to review their decision by lodging an objection pursuant to section 77(3) of the Children Act 1989.
+But they resolved that the decision should stand.
+In order to establish her right to be registered, Mrs Davis had to appeal to the magistrates court.
+The proceedings were adversarial and the local authority lost the argument.
+Such were the circumstances for application of the principle that costs should follow the event.
+Far from being satisfied that the justices were plainly wrong to decide that the local authority should pay the costs of Mrs Davis, I consider that they were right.
+This judgment confirmed that it was not the normal practice to award costs in child care cases.
+It contained, however, the seeds of what was to follow, for in effect Wilson J applied the general common law rule that costs follow the event in adversarial cases.
+In re J (Children) [2009] EWCA Civ 1350 involved contact proceedings between a mother and father.
+The district judge held a fact finding hearing to resolve allegations of violence made by the mother and denied by the father.
+Most of the mothers allegations were held to be established and she sought the costs of the hearing.
+The district judge refused her application and made no order as to costs.
+The mother appealed to the county court.
+She invited the judge to draw a distinction between the fact finding hearing and that part of the hearing that related to the welfare of the children.
+The judge declined to do so.
+He held that the father had not acted unreasonably in giving evidence in opposition to the mother and dismissed her appeal.
+On appeal to the Court of Appeal, Wilson LJ, giving the only reasoned judgment, held that the circuit judge had been wrong not to adopt a compartmentalised approach.
+He held at para 17: The order for a bespoke fact finding hearing was surely to consign the determination of the mother's allegations into a separate compartment of the court's determination of the father's application for an order for contact.
+It went almost without saying, although the circuit judge chose to say it, that the optimum outcome of the contact application could be determined only by reference to the findings made at the fact finding hearing; but the effect of the direction for a separate fact finding hearing was that the costs incurred by the mother in relation to that hearing can confidently be seen to be wholly referable to her allegations against the father.
+There was, in that sense, a ring fence around that hearing and thus around the costs referable to it.
+Those costs did not relate to the paradigm situation to which the general proposition in favour of no order as to costs applies.
+Wilson LJ went on to hold that the husband had not acted irrationally and that a proper exercise of the courts discretion did not depend upon why he chose to deny allegations that he must have known were true.
+He remarked that issues of fact arose in most disputed cases in relation to children and that his decision in the instant case should not be taken as an indication that it was appropriate to make an order for costs in the vast run of such cases.
+He held, however, that the mothers case fell into a separate and unusual category.
+It was devoted exclusively to consideration of the serious and relevant allegations made by the mother against the father, most of which were established.
+In these circumstances he held that the proper order was for the father to pay two thirds of the mothers costs of the hearing.
+This decision could have been justified on the ground that the costs in question had been caused by the fathers unreasonable refusal to admit the facts that were ultimately proved against him, but Wilson LJs reasoning appears to have been simply that a party who makes allegations of fact against another party that prove to be unfounded, or who challenges allegations of fact that prove to be well founded, should be liable for the costs of resolving those issues, whether his conduct was reasonable or not.
+We turn to the decision of Wilson LJ in the present case.
+He held that Judge Dowse had erred in relying upon In re J to justify applying the general proposition that no order for costs should be made in a child case.
+He had failed to appreciate that the true purport of In re J was that the general proposition should not be applied in relation to the costs of a fact finding hearing.
+Wilson LJ rejected the submission made on behalf of the Council that the general proposition against awarding costs in care proceedings applied.
+He held at para 18: I consider that, where in care proceedings a local authority raise, however appropriately, very serious factual allegations against a parent or other party and at the end of a fact finding hearing the judge concludes that they have not established them, the general proposition is not in play.
+In that situation he held that the judge should approach the question of costs with a clean sheet.
+As to the approach that the judge should then follow, Wilson LJ cited at para 20 the statement that he had made in ancillary relief proceedings that were not concerned with a child, Baker v Rowe [2010] 1 FCR 413, para 25: Even where the judge starts with a clean sheet, the fact that one party has been unsuccessful, and must therefore usually be regarded as responsible for the generation of the successful partys costs, will often properly count as the decisive factor in the exercise of the judges discretion.
+He added at para 21: In my view the facts that the grandparents were faced with allegations of the utmost severity, that accordingly it had been reasonable for them to stretch their economy to the utmost in order to secure for themselves a professional defence against them and that in the event the result was an exoneration, were all matters which should have been of great, indeed in my view of decisive, importance to a judge who was about to write on a clean sheet.
+The relevance of a split hearing
+Care proceedings usually involve allegations of misconduct by some person, typically a parent who is looking after the child, but often, as in this case, of other persons.
+Those against whom allegations are made are likely to wish to challenge them.
+The parents primary concern may be not to lose care of the child.
+Others may simply be concerned to clear their names.
+The object of the proceedings is to reach the decision that is in the best interests of the child.
+The procedure for achieving this in this jurisdiction is adversarial.
+The proceedings are brought by the local authority.
+The parents and the child or children concerned are made respondents.
+Those against whom allegations of misconduct are made may be joined, either on their own application or at the initiative of the court, as interveners.
+Before deciding what is in the best interests of the child it is sometimes necessary to resolve issues of fact.
+The court will normally require the local authority to set out the findings of fact that it seeks to establish in order to show that the threshold requirements for making a care order laid down by section 31(2) of the Children Act 1989 are satisfied.
+The decision to have a split hearing of care proceedings is essentially one of case management.
+It is taken by the court.
+The position was clearly spelt out by Lady Hale in In re B (Children)(Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35; [2009] AC 11: 74.
+Care proceedings are not a two stage process.
+The court does have two questions to ask.
+Has the threshold been crossed? If so, what will be best for the child? But there are many cases in which a court has two or more questions to ask in the course of a single hearing.
+The same factual issues are often relevant to each question.
+Or some factual disputes may be relevant to the threshold while others are relevant to the welfare checklist: it may be clear, for example, that a child has suffered an injury while in the care of the mother, but whether the father or stepfather has a drink problem and has been beating the mother up is extremely relevant to the long term welfare of the child. 75.
+The purpose of splitting the hearing is not to split the two questions which the court must answer.
+It is to separate out those factual issues which are capable of swift resolution so that the welfare professionals have a firm foundation of fact upon which to base their assessments of family relationships and parenting ability: see In re S (Care Proceedings: Split Hearing) [1996] 2 FLR 773.
+A fact finding hearing is merely one of the case management possibilities contemplated by the new Public Law Outline There is no point in splitting the issues if the facts cannot be determined relatively quickly, still less if it is unlikely to result in clear cut findings to help the professionals in their work. 76.
+But the finding of those facts is merely part of the whole process of trying the case.
+It is not a separate exercise.
+And once it is done
+the case is part heard
+The decision to have a split hearing cannot affect the principles to be applied by the court when dealing with costs, although it may have a practical impact on the courts decision.
+The first part of a split hearing isolates specific issues of fact.
+For the local authority and the court the resolution of those issues is a stepping stone to the final decision in relation to the welfare of the child or children concerned.
+So far as interveners are concerned, their interests in the proceedings may be restricted to the findings that are made at the first hearing.
+Having a split hearing makes it much easier to identify both the manner in which the issues of fact have been resolved and the costs reasonably incurred by the parties in relation to the issues affecting them.
+It follows that, if it is correct in principle to award costs in relation to individual issues of fact, this can much more readily be done where there has been a split hearing.
+Indeed the exercise may well be one that it is not practical, and therefore not desirable, to undertake where there has not been a split hearing.
+Courts are, however, accustomed to making a special award of costs in relation to a discrete issue that forms part of a single hearing.
+This appeal raises an issue of principle in relation to that practice in the context of care proceedings.
+The issue of principle
+The issue of principle raised by this appeal is whether in care proceedings a local authority should be liable to pay an interveners reasonable costs in relation to allegations of fact, reasonably made by the authority against the intervener, which have been held by the court to be unfounded.
+The principle advanced by Cazalet J that I have quoted at para 14 has continued to be applied in cases not involving split hearings subsequent to the decision in In re J.
+Thus in Coventry City Council v X, Y and Z (Care Proceedings: Costs) [2011] 1 FLR 1045 at para 192 His Honour Judge Bellamy ruled that it was still an appropriate test to apply.
+In Kent County Council v Mother and others [2011] EWHC 1267 (Fam) Baker J rejected an application for costs against a local authority by an intervener who had been wholly exonerated in a fact finding hearing that was the first part of a split hearing.
+He did so on the ground that the impetus for making the allegations against the intervener had been that of the court not the local authority.
+The principle applied by Cazalet J appears to mirror the approach in proceedings under the Court of Protection Rules 2007 (SI) 2007/1744).
+Rule 157 provides that where proceedings concern a protected persons welfare the general rule is that there will be no order as to the costs of the proceedings or of that part of the proceedings that concern his personal welfare.
+Rule 159 permits departure from the general rule if the circumstances so justify.
+In G v E and Manchester City Council and F [2010] EWHC 3385 (Fam) Baker J awarded costs against a local authority that had been guilty of misconduct that he held justified departure from the general rule.
+He observed at para 40: Parties should be free to bring personal welfare issues to the Court of Protection without fear of a costs sanction.
+Local authorities and others who carry out their work professionally have no reason to fear that a costs order will be made.
+It is only local authorities who break the law, or who are guilty of misconduct that falls within the meaning of rule 159, that have reason to fear a costs order.
+Local authorities who do their job properly and abide by the law have nothing to fear.
+These comments were endorsed on appeal by Hooper LJ: [2011] EWCA Civ 939, at para 17.
+The statement of principle of Wilson LJ that we have quoted at para 23 above is at odds with the principle applied by Cazalet J and the judges who have followed him, giving rise to the issue that we have set out at para 29.
+Should local authorities be protected from liability to costs in care cases?
+The duties imposed on local authorities often require them to initiate public law proceedings.
+The Court of Appeal has recently considered, in the context of cases where claims are conceded, whether different principles apply in the case of public authorities in proceedings in the Administrative Court.
+The court held that the position should be no different for litigation in the Administrative Court from what it is in general civil litigation see M v Croydon London Borough Council [2012] EWCA Civ 595.
+There is no general principle that protects a local authority that has acted reasonably in the course of its duties from liability for costs in public law proceedings.
+Are there special considerations that apply in family proceedings involving children?
+At para 12 we have identified a number of circumstances in which there is good reason for not applying the general rule that costs follow the event to family proceedings.
+They are all circumstances in which orders for costs might have consequences that conflicted with the object of the individual proceedings.
+They have no application to the position of a local authority that has caused costs to be incurred by making allegations that have proved to be unfounded.
+Submissions
+Miss Bazley QC for the Council advanced a broad argument of policy in support of the Councils appeal.
+Local authorities have limited funds.
+Their costs in relation to care proceedings are met from their Childrens Services budgets.
+There are many other claims on this budget.
+Miss Bazley submitted that if local authorities are to be at risk of paying the costs of those against whom they reasonably make allegations in care proceedings, this is likely to inhibit them from doing so, to the general detriment of children at risk.
+More generally, the child services provided would suffer as a result of this additional financial burden.
+Miss Bazley produced in support of her submissions the results of what might be described as an amateur survey carried out by junior counsel and Bar students into the attitudes of 28 local authorities to the risk of liability to costs in care cases.
+Although no objection was made to this material, we do not consider that it would be appropriate to base conclusions upon it.
+No evidence is needed, however, to support the proposition that if local authorities are to become liable to pay the costs of those that they properly involve in care proceedings this is going to impact on their finances and the activities to which these are directed.
+The Court can also take judicial notice of the fact that local authorities are financially hard pressed, as demonstrated by the fact that their counsel have appeared before us without payment.
+Miss Bazleys submissions were supported by CAFCASS.
+They made the further point that if costs are to be awarded against local authorities who fail to make good allegations reasonably made, costs are likely to be awarded against interveners who are held wrongfully to have challenged allegations made against them, which is likely to result in a reluctance to intervene, to the detriment of the conduct of care cases.
+Although the Grandparents are no longer at risk, Mr Hirst who appeared for them, advanced their case with vigour.
+He accepted that there was a general principle that costs should not be awarded in cases involving children, but argued that Wilson LJ had been correct not to apply this principle to fact finding hearings.
+Interveners in such hearings would be concerned principally in clearing their names.
+The issue was not what was in the best interests of the child but whether the facts alleged by the local authority were true.
+Local authorities who failed on that issue should, in justice, pay the interveners costs.
+Mr Hale, who appeared for the Grandparents Association, did not put the distinction between a single hearing and a split hearing at the forefront of his argument and, indeed, some parts of his written case did not support that distinction.
+Thus he submitted at para 47 that whether the fact finding was listed separately or together with the welfare determination made no discernable difference and at para 48 that not every fact finding hearing would lead to an order for costs.
+All other factors and considerations were in play.
+Mr Hale focussed primarily on general considerations of policy.
+He submitted that there was no reason of public policy for treating local authorities differently from other parties in public law proceedings.
+The suggestion that potential liability to costs would fetter their performance of their public duties was anecdotal and unjustified.
+Justice would best be served by giving the court an unfettered discretion in relation to costs.
+In a case such as the present it would be an affront to natural justice to leave the interveners to pay their own costs.
+Discussion
+The question of whether it is just to make an award of costs against a public authority must be distinguished from the question of whether a litigants costs should be publicly funded.
+The former question is for the court; the latter for the legislature.
+Whether a litigants costs should be publicly funded involves issues in relation to access to justice and the requirements of article 6 of the European Convention of Human Rights.
+Mr Hale invoked that article in support of his argument that where allegations made against an intervener are not made out, the local authority which advanced those allegations should be liable for the interveners costs.
+We consider that this argument was misconceived.
+The requirements to provide public funding in the interests of access to justice and of compliance with article 6 apply at the outset of legal proceedings, not when they are concluded, in the light of the result.
+The Funding Code prepared by the Legal Services Commission pursuant to section 8 of the Access to Justice Act 1999 makes provision for public funding in proceedings under, inter alia, section 31 of the Children Act 1989.
+The effect of the code is that children, parents and those with parental responsibility are granted funding without reference to means, prospects of success or reasonableness, but such funding is not available to interveners who are joined in such proceedings: see volume 3C 427 of the Legal Services Commission Manual.
+There may be a case for saying that this results in injustice in the case of interveners in the position of the grandparents in the present case, but it does not follow that justice demands that any deficiency in the provision of legal aid funding should be made up out of the funds of the local authority responsible for the care proceedings.
+If in principle a local authority should be liable for the costs of interveners against whom allegations have been reasonably made that are held unfounded, then this liability should arise whether or not the interveners are publicly funded.
+In the present case, the five men who intervened and were exonerated should also have sought and been awarded costs.
+The burden of costs awarded against local authorities in such circumstances is likely to be considerable.
+When considering whether it is just to make an award of costs against a local authority in circumstances such as those of the present case it is legitimate to have regard to the competing demands on the limited funds of the local authority.
+In the context of care proceedings it is not right to treat a local authority as in the same position as a civil litigant who raises an issue that is ultimately determined against him.
+The Children Act 1989 imposes duties on the local authority in respect of the care of children.
+If the local authority receives information that a child has been subjected to or is likely to be subjected to serious harm it has a duty to investigate the report and, where there are reasonable grounds for believing that it may be well founded, to instigate care proceedings.
+In this respect the role of a local authority has much in common with the role of a prosecuting authority in criminal proceedings.
+It is for the court, and not the local authority, to decide whether the allegations are well founded.
+It is a serious misfortune to be the subject of unjustified allegations in relation to misconduct to a child, but where it is reasonable that these should be investigated by a court, justice does not demand that the local authority responsible for placing the allegations before the court should ultimately be responsible for the legal costs of the person against whom the allegations are made.
+Since the Children Act came into force, care proceedings have proceeded on the basis that costs will not be awarded against local authorities where no criticism can be made of the manner in which they have performed their duties under the Act.
+Wilson LJ in In re J at para 19 disclaimed any suggestion that it was appropriate in the vast run of these cases to make an order for costs in whole or in part by reference to the courts determination of issues of historical fact.
+But, as I have indicated, there is no valid basis for restricting his approach in that case to findings in a split hearing.
+The principle that he applied would open the door to successful costs applications against local authorities in respect of many determinations of issues of historical fact.
+The effect on the resources of local authorities, and the uses to which those resources are put would be significant.
+For these reasons we have concluded that the general practice of not awarding costs against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, is one that accords with the ends of justice and which should not be subject to an exception in the case of split hearings.
+Judge Dowses costs order was founded on this practice.
+It was sound in principle and should not have been reversed by the Court of Appeal.
+Accordingly we allow this appeal and restore Judge Dowses order, on the basis that it shall not be relied upon to deprive the grandparents of the costs to which the Court of Appeal held that they were entitled.
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+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 he would lie and feign loyalty to that regime in order to avoid the persecutory ill treatment to which he would otherwise be subjected? This is the question of general importance that arises in these appeals which are a sequel to the decision of this court in HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596.
+In that case, it was held that a gay man was entitled to live freely and openly in accordance with his sexual identity under the Refugee Convention (the Convention) 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.
+I shall refer to this as the HJ (Iran) principle.
+These cases fall to be decided in the light of the latest country guidance for Zimbabwe which is to be found in the decision of the Asylum and Immigration Tribunal (AIT) in RN (Returnees) Zimbabwe CG [2008] UKAIT 00083 to which I shall have to refer in more detail later.
+At this stage, it is sufficient to refer to para 216: This campaign [of persecution] has been rolled out across the country not by disciplined state forces but by the loose collection of 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 poll.
+It is precisely because of that that any attempt to target specifically those who have chosen to involve themselves with the [Movement for Democratic Change (MDC)] has been abandoned.
+In our view, there can be no doubt at all from the evidence now before the Tribunal that those at risk are not simply those who are seen to be supporters of the MDC but anyone who cannot demonstrate positive support for Zanu PF or alignment with the regime.
+We were referred to the new country guidance issued by the Upper Tribunal in EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC) which states that the situation in Zimbabwe has significantly changed.
+But this decision was quashed by the Court of Appeal on 13 June 2012.
+It is common ground that it is not material to the present appeals.
+The facts
+RT was born on 28 May 1981.
+She left Zimbabwe legally in February 2002 and arrived in the United Kingdom on 2 March 2002.
+She was given leave to enter for six months and began to work for a family as a nanny.
+She overstayed her leave.
+In 2005, she was refused leave to remain as a student.
+On 16 February 2009, she claimed asylum.
+The claim was refused by the Secretary of State and her appeal to the AIT was dismissed on 1 July 2009.
+IJ Hussain found that she would be able to take any positive steps necessary to show her loyalty to the regime and that there was no real risk of her being subject to ill treatment on return.
+Reconsideration was ordered on 8 December 2009.
+On the reconsideration, RTs appeal was dismissed by the Upper Tribunal on 2 March 2010.
+DIJ Manuell found that she was a credible witness and that she had never been politically active in Zimbabwe or in the United Kingdom.
+At para 25 he gave his reasons for concluding that she did not have a well founded fear of persecution on a Convention ground.
+Of particular relevance is the finding that she was in a position to explain that she has never been politically involved at home or abroad, should anyone see fit to enquire.
+SM was born on 26 September 1982.
+She left Zimbabwe in April 2008 using a passport issued in another name and claimed asylum in the United Kingdom on 1 May 2008.
+Following refusal of her claim in November 2008, she appealed to the AIT.
+Her appeal was dismissed on 29 January 2009.
+IJ Lawrence found that she was not a credible witness, had given inconsistent accounts of her involvement with the MDC and had lied in a number of other respects.
+On 17 June 2009, reconsideration was ordered on the single issue of whether SM would be at risk on return in view of the decision in RN.
+Her appeal was dismissed by IJ Charlton Brown on 3 November 2009.
+She too found that SM was not a credible witness.
+She said that SM had no connections with the MDC and that, although her mother had left Zimbabwe in 2002 and had been recognised as a refugee in 2003, she had not had difficulties living in Zimbabwe between 2002 and 2008.
+On the issue of loyalty to the regime, she said at para 23: Finally, in terms of whether or not this appellant can demonstrate positive support for/loyalty to ZANU PF, it seems clear that she herself has not been linked with the MDC as she has claimed, given her lack of credibility throughout.
+As previously stated, she appears to have been able to live in Zimbabwe without problems since her mother left the country in 2002 and quite frankly, given this individuals complete lack of credibility and indeed her inclination to lie as and when required, as the original immigration judge pointed out, no doubt she would be prepared to lie again in the future to the authorities on return to Zimbabwe about any political affiliation she might have.
+AM was born on 16 November 1966.
+He left Zimbabwe and arrived in the United Kingdom on 25 February 2001 with leave to enter as a visitor.
+He remained with leave as a student until 30 November 2007.
+He claimed asylum on 28 April 2009.
+This was refused.
+His appeal was dismissed by the AIT on 15 September 2009 and dismissed again (following reconsideration) on 23 March 2010.
+DIJ Shaerf did not find AM to be a credible witness.
+Although he was in favour of the MDC (para 46), AM had no political profile and was not politically engaged prior to his departure from Zimbabwe (para 47).
+He would be able to account for his absence from Zimbabwe by reference to his studies in the United Kingdom and the breakdown of his marriage whilst he was here.
+He had returned to Zimbabwe in 2003 without difficulty.
+RT, SM and AM all appealed to the Court of Appeal.
+The judgment of the court was given by Carnwath LJ: [2010] EWCA Civ 1285; [2011] Imm AR 259.
+Their appeals were allowed.
+The court said at para 36 that if individuals are forced to lie about their absence of political beliefs, solely in order to avoid persecution, that seems to us to be covered by the HJ (Iran) principle, and does not defeat their claims to asylum.
+In the case of RT, the court said (para 42) that the Upper Tribunal did not address the critical issue raised by RN since: It is not enough that she would be able to explain her lack of political activity abroad.
+The question is whether she would be forced to lie in order to profess loyalty to the regime, and whether she could prove it.
+Since she was found to be generally credible, there is no other reason to hold that she has failed to prove her case.
+The court allowed RTs appeal and upheld RTs asylum claim.
+As for SM, at para 46 the court said of para 23 of the decision of the AIT that: it was not enough to hold that she would be willing to lie as and when required, if the reason for doing so would be to avoid persecution.
+Nor is willingness to lie the same as ability to prove loyalty to the regime.
+On the other hand, in view of her lack of credibility overall, it remains open to question whether her case should fail for lack of proof as in [TM (Zimbabwe) v Secretary of
+State for the Home Department [2010] EWCA Civ 916].
+We will
+therefore allow the appeal and remit the case to the Upper Tribunal for redetermination.
+In relation to AM, the court said at para 52: As in the first case, the issue was not simply whether the appellant could account for his absence in the UK.
+The judge failed to address the issue as to his ability to show his loyalty to the regime.
+Unlike RT, he has not been held to be a credible witness.
+Accordingly, as in the case of SM, we do not feel able to substitute our own conclusion on this issue.
+We will therefore allow the appeal and remit the case to the Upper Tribunal.
+The Secretary of State seeks an order that the decisions of the Tribunal should be restored in all three cases, alternatively that the claims should be remitted for further consideration of the sole issue of whether each claimant would be able to prove loyalty to the regime.
+KM was born on 5 March 1957.
+He left Zimbabwe legally and claimed to have arrived in the United Kingdom in January 2003 on a false South African passport.
+He was given six months leave to enter as a visitor.
+He claimed asylum on 20 August 2008 and his claim was refused by the Secretary of State.
+His appeal was dismissed by the AIT on 1 April 2009.
+A fact of central importance was that his son had been granted asylum in the United Kingdom because he had a well founded fear of persecution in Zimbabwe on the grounds that he was a sympathiser of the MDC.
+IJ Parkes concluded that KM and his son (on whose evidence he relied) were not reliable witnesses with regard to events in Zimbabwe and that KM could not demonstrate an inability to show loyalty to the regime.
+On 11 August 2009, Hickinbottom J ordered reconsideration.
+The appeal was dismissed on reconsideration on 23 October 2009.
+SIJ Latter said at para 18: In the light of the judges findings of fact I am not satisfied that the appellant 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.
+The judge found that the appellant had no profile in Zimbabwe and had not been involved in MDC activities.
+There was no reasonable degree of likelihood that the grant of status to his son would be known to those who might call upon him to show loyalty and he also failed to establish any serious possibility of finding himself in a position that such a call would now be made on him.
+Finally, he failed to show that his background, his profile or his beliefs were such that he would not be able to demonstrate loyalty.
+The Court of Appeal allowed his appeal and remitted the case to the Upper Tribunal.
+The leading judgment was given by Pill LJ: [2011] EWCA Civ 275.
+The Secretary of State accepted that the appeal should be allowed by the Court of Appeal because it was arguable that the Tribunal had failed to give adequate consideration to the assessment of risk in the light of the guidance in RN.
+The issue between the parties was whether there should be a remittal to the Tribunal (as the Secretary of State contended) or the appeal should be allowed outright (as the appellant contended).
+It was conceded by the Secretary of State that there was a real risk that the appellants son having obtained asylum because of his MDCs sympathies would come out on the appellants return (para 6 of Pill LJs judgment); and that the fact that KMs son had been granted asylum may place the appellant in an enhanced risk category by making it more difficult for him to demonstrate his loyalty to the regime (para 12).
+The primary submission of the Secretary of State to the Court of Appeal was that there should be a further opportunity to examine the circumstances of return, for example, the area to which KM would return and whether he was a person who would be returning to a milieu where loyalty to the regime would be assumed (para 13).
+At para 15, Pill LJ said that, in the light of the evidence and the guidance in RN, the appellants prospect of demonstrating loyalty to the regime appeared bleak.
+He concluded, however, that this was not a case which the court could decide on the basis that only one outcome was possible before the Tribunal, although he regarded the appellants case as strong and it was acknowledged by the Secretary of State that there was a risk of his sons status becoming known (para 29).
+At para 27, he gave two reasons for his conclusion by reference to the decision in RN: First, an applicant found not to have been a witness of truth will not be assumed to be truthful about his inability to demonstrate loyalty (paragraph 246).
+Secondly, there is recognition, in paragraphs 229 and 230, of categories of people, for example, those returning to more affluent areas and likely to be associated with the regime, who may be returning to a milieu where loyalty to the regime may be assumed and the risk of persecution does not arise.
+The country guidance in RN
+In RN the AIT summarised the position at para 258 as follows: The evidence establishes clearly that those at risk on return to Zimbabwe on account of imputed political opinion are no longer restricted to those who are perceived to be members or supporters of the MDC, but include anyone who is unable to demonstrate support for or loyalty to the regime or Zanu PF.
+To that extent the country guidance in HS (Returning asylum seekers) Zimbabwe CG [2007] UKAIT 00094 is no longer to be followed.
+The following points of detail are relevant.
+The risk of persecution resulted in particular from the activities at road blocks of ill disciplined militia gangs and War Veterans.
+It did not result from the risk of detection at the airport on return to Zimbabwe.
+The means used by those manning road blocks to establish whether a person was loyal to the ruling Zanu PF party included requiring them to produce a Zanu PF card or sing the latest Zanu PF campaign songs.
+An inability to do these things would be taken as evidence of disloyalty to the party and therefore of support for the opposition (para 81).
+In deploying these militia gangs, the regime unleashed against its own citizens a vicious campaign of violence, murder, destruction, rape and displacement designed to ensure that there remains of the MDC nothing capable of mounting a challenge to the continued authority of the ruling party (para 215).
+Any attempt by the regime to target those who have chosen to involve themselves with the MDC has been abandoned.
+The risk of not being able to demonstrate loyalty to the regime exists throughout the country, in both urban and rural areas (para 226).
+The means by which loyalty may be demonstrated will vary depending on who is demanding it.
+Production of a Zanu PF card is likely to suffice where an individual is confronted with such a demand, for example, at a road block.
+But even that may not protect the holder from serious harm in rural areas where the adverse interest is in the community as a whole, because the area is one in which the MDC made inroads in the Zanu PF vote at the March 2008 elections (para 227).
+People living in high density urban areas will face the same risk from militias or War Veterans as those living in rural areas, save that the latter are possibly at greater risk if their area has been designated as a no go area by the militias (para 228).
+Finally, at paras 229 and 230, points are made about milieu which Pill LJ noted at para 27 of his judgment, to which I have referred above.
+HJ (Iran)
+There has been no challenge in these appeals to the correctness of the decision in HJ (Iran) or its essential reasoning.
+In the light of the submissions that have been advanced in the present appeals, it is necessary to refer to parts of the judgments in HJ (Iran) in a little detail.
+The court recognised as a refugee a gay man who, if he returned to his country of nationality and lived openly as a homosexual, would face a real risk of persecution on the ground of his sexual orientation, and who, in order to avoid this risk, would carry on any homosexual relationships discreetly.
+I would accept the analysis of Mr Fordham QC that five principal reasons were given by the court for this conclusion.
+First, the treatment of those who lived openly as homosexuals in Iran and Cameroon constituted persecution (para 40 42).
+Secondly, sexual orientation was a protected characteristic within the category of membership of a particular social group (para 42).
+Thirdly, the underlying rationale of the Convention was that people should be able to live freely, without fearing that they may suffer harm of the requisite intensity or duration because they are, say, black, or the descendants of some former dictator, or gay (para 53): see also paras 52, 65, 67 and 78.
+Fourthly, the necessary modification in order to avoid persecution (carrying on any homosexual relationships discreetly) ran contrary to this underlying rationale.
+It involved surrendering the persons right to live freely and openly in society as who they are, in terms of the protected characteristic, which was the Conventions basic underlying rationale: see per Lord Rodger at paras 75 76, Lord Hope at para 11 and myself at para 110.
+Fifthly, the modification was a response to the feared persecution because of these dangers of living openly (para 40).
+There was a difference between a case where the individual would live discreetly because of social pressures (para 61) and the situation where he would behave discreetly in order to avoid persecution because he is gay (para 62).
+Only the latter would be entitled to refugee protection, assuming, of course, that he would suffer persecution if he were to live openly as a homosexual.
+In the course of its reasoning, the court rejected three arguments advanced on behalf of the Secretary of State.
+The first was that it was necessary for a refugee to be able to characterise living discreetly in order to avoid persecution as being itself persecution.
+The second was that it was appropriate to see living discreetly in such circumstances as analogous to internal relocation, so that the unduly harsh test applied in relation to internal relocation should be applied here too: see per Lord Hope at paras 20 and 21.
+The third was that the question was whether living discreetly was or was not reasonably tolerable to the asylum seeker.
+This was the test enunciated by the Court of Appeal in HJ (Iran).
+In reaching his conclusion, Lord Rodger (para 69) followed the reasoning of the majority in the High Court of Australia in Appellant S395/2002 v Minister of Immigration (2003) 216 CLR 473.
+At para 72, he also referred to the approach adopted in New Zealand, particularly in Refugee Appeal No 74665/03 [2005] INLR 68 where at para 124 the New Zealand Refugee Status Appeals Authority considered that its own approach and that expressed by the majority in Appellant S395/2002 converged on the same point, namely that refugee status cannot be denied by requiring of the claimant that he or she avoid being persecuted by forfeiting a fundamental human right.
+Lord Rodger continued: The difference between the High Court and the authoritywhich the authority considered could be important in certain caseswas that it preferred to use a human rights framework in order to determine the limits of what an individual is entitled to do and not to do.
+That approach might, for instance, be relevant if an applicant were claiming asylum on the ground that he feared persecution if he took part in a gay rights march.
+I respectfully see the attractions of that approach.
+But no such issue arises in the present appeals and I prefer to leave the point for consideration in a case where it might be of practical effect.
+For present purposes I take the decision of the authority, based on a particularly full and impressive analysis of the relevant materials, as clear support for the High Court of Australias approach that an applicant cannot be denied asylum on the basis that he would, in fact, take effective steps, by suppressing his sexual identity, to avoid the harm which would otherwise threaten him.
+I shall return to the New Zealand case later in this judgment.
+At para 113 of my judgment, I said that the emphasis in the New Zealand decision was on the fact that refugee status could not be denied to a person who on return would forfeit a fundamental human right in order to avoid persecution.
+Like Lord Rodger, I saw the attractions of this approach.
+At para 114, I said that a particular attraction of the New Zealand approach was that it facilitated a determination of whether the proposed action by the claimant was at the core of the right or at its margins.
+At para 115, I said: It is open to question how far the distinction between harmful action at the core of the right and harmful action at its margin is of relevance in cases of persecution on grounds of immutable characteristics such as race and sexual orientation.
+But it is a valuable distinction and there may be more scope for its application in relation to cases concerning persecution for reasons of religion or political opinion.
+The principal issues that arise in these appeals
+Two principal issues arise.
+The first is whether the HJ (Iran) principle can apply to an individual who has no political beliefs and who is obliged to pretend to support a political regime in order to avoid the persecution that he would suffer if his political neutrality were disclosed.
+Is the position of such a person analogous to that of a homosexual who is obliged to live a discreet life in order to avoid the persecution that he would suffer if he revealed his sexual orientation?
+The second is whether, in the light of the country guidance given in RN, there is a real risk that such a person would face persecution on the grounds that he would be perceived to be a supporter of MDC.
+In other words, would he face a risk of persecution on the grounds of imputed political belief? The first issue: can the HJ (Iran) principle apply to individuals who have no political beliefs?
+The case of the Secretary of State in outline
+The relevant factual premises for a consideration of these issues are that (i) the claimants do not hold any political beliefs and (ii) in practice, in order to avoid the imputation that they do not support the ruling regime (and consequently to avoid maltreatment), there is a real and substantial risk that they will be required to dissemble political loyalty to that regime.
+The Court of Appeal were wrong to say at para 36 of their judgment that, if the claimants are forced to lie about their political neutrality or indifference solely in order to avoid persecution, the concealment of their lack of political beliefs would not defeat their claims to asylum.
+HJ (Iran) does not establish any such rigid principle.
+Rather, what is required is a fact sensitive analysis and consideration of whether interference with the claimants freedom to hold or not hold political opinions is at the core or the margin of the protected right or requires them to forfeit a fundamental human right.
+There are two fundamental differences between HJ (Iran) and the present cases.
+First, the issue in these cases does not relate to a fundamental or immutable part of the individuals identity or a fundamental human right, since the claimants do not have any political views.
+The right in question is freedom of political thought and/or expression.
+Since the claimants do not have political views, having to express a particular view which they do not hold is at the margin of the right.
+They are not being required to forfeit a fundamental human right in order to avoid being persecuted.
+Secondly, the situation contemplated in HJ (Iran) was one in which a person had to conceal a fundamental and immutable part of his identity at all times (at least when not in private).
+In these cases, what is contemplated is a situation where a person may on isolated occasions be required to spend a very short amount of time professing a feigned opinion on a matter of politics.
+Discussion
+It is well established that there are no hierarchies of protection amongst the Convention reasons for persecution, and the well founded fear of persecution test set out in the Convention does not change according to which Convention reason is engaged: see, for example, per Lord Hope in HJ (Iran) at para 10, per Lord Hoffmann in R v Immigration Appeal Tribunal, Ex p Shah [1999] 2 AC 629, 651B and per Lord Bingham in Fornah v Secretary of State for the Home Department [2007] 1 AC 412, paras 20 22 (approving the reasoning of Laws J in R v Immigration Appeal Tribunal, Ex p De Melo [1997] Imm AR 43, 49 50).
+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.
+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.
+Mr Swift accepted that such a person would have a strong case for Convention protection, but he stopped short of an unqualified acceptance of the point.
+In my view, there is no basis for such reticence.
+The joint judgment of Gummow and Hayne JJ in Appellant S395/2002 contains a passage under the heading Discretion and being discreet which includes the following at para 80: If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief.
+But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question.
+And to say to an applicant that he or she should be discreet about such matters is simply to use gentler terms to convey the same meaning.
+The question to be considered in assessing whether the applicants fear of persecution is well founded is what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences.
+I made much the same point in HJ (Iran) at para 110: If the price that a person must pay in order to avoid persecution is that he must conceal his race, religion, nationality, membership of a social group or political opinion, then he is being required to surrender the very protection that the Convention is intended to secure for him.
+The Convention would be failing in its purpose if it were to mean that a gay man does not have a well founded fear of persecution because he would conceal the fact that he is a gay man in order to avoid persecution on return to his home country.
+In the context of religious belief, the United Nations High Commissioner for Refugees has said (in my view, rightly): Applying the same standard as for other Convention grounds, religious belief, identity or way of life can be seen as so fundamental to human identity that one should not be compelled to hide, change or renounce this in order to avoid persecution: Guidelines on International Protection: Religion Based Refugee Claims (2004) para 13 (emphasis added).
+But what about the person who has no political beliefs and who, in order to avoid persecution, is forced to pretend that he does? Does the right to hold no political beliefs (and say so) attract Convention protection as much as the right to hold and express political beliefs? A useful starting point is the preamble to the Convention, which includes the following: CONSIDERING that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination, CONSIDERING that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms.
+This emphasis on the importance of human rights in the present context is also reflected in Council Directive 2004/83/EC (the Qualification Directive) whose tenth recital states: This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union.
+In particular this Directive seeks to ensure full respect for human dignity and the right to asylum of applicants for asylum and their accompanying family members.
+As Lord Bingham said in Fornah at para 10, the Convention must be interpreted: in accordance with its broad humanitarian objective and having regard to the principles, expressed in the preamble, that human beings should enjoy fundamental rights and freedoms without discrimination and that refugees should enjoy the widest possible exercise of these rights and freedoms.
+Lord Steyn made the same point in R v Immigration Appeal Tribunal, Ex p Shah [1999] 2 AC 629, 638H to 639E.
+Under both international and European human rights law, 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.
+The rights to freedom of thought, opinion and expression are proclaimed by articles 18 and 19 of the Universal Declaration of Human Rights 1948.
+As Lord Hope said in HJ (Iran) at para 15: The guarantees in the Universal Declaration are fundamental to a proper understanding of the Convention.
+The relevance of that general statement is not diminished by the note of caution sounded by Lord Hope that the Convention has a more limited purpose than the Declaration, in that, for example, persecution is not the same as discrimination simpliciter.
+Articles 18 and 19 of the Declaration are given effect internationally by articles 18 and 19 of the International Covenant on Civil and Political Rights 1966 (ICCPR).
+Article 18 of the ICCPR deals with the right to freedom of thought, conscience and religion.
+Article 19 deals with the right to freedom of opinion and expression.
+The United Nations Human Rights Committee has commented on these rights.
+In its General Comment No 22 on article 18 (30 July 1993), it said that the right to freedom of thought, conscience and religion in article 18.1 is far reaching and profound (para 1); the terms belief and religion are to be broadly construed (para 2); and article 18 protects theistic, non theistic and atheistic beliefs, as well as the right not to profess any religion or belief (para 2).
+In its General Comment No 34 on article 19 (12 September 2011), it said that freedom of opinion and freedom of expression are indispensable conditions for the full development of the person.
+They are essential for any society.
+They constitute the foundation stone for every free and democratic society (para 2).
+All forms of opinion are protected (para 9).
+At para 10, it said: Any form of effort to coerce the holding or not holding of any opinion is prohibited.
+Freedom to express ones opinion necessarily includes freedom not to express ones opinion.
+There is case law in relation to the European Convention on Human Rights to the effect that the guarantee of freedom of thought, conscience and religion under article 9 protects the indifferent or unconcerned, and extends to the right not to hold thoughts or beliefs and not to give expression to them.
+In Kokkinakis v Greece (1993) 17 EHRR 397, para 31, the European Court of Human Rights said: As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a democratic society within the meaning of the Convention.
+It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and of their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned.
+The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.
+In Buscarini and others v San Marino (1999) 30 EHRR 208, at para 34
+unanimous Grand Chamber of the ECtHR repeated this passage and added: That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion.
+In Buscarini, the applicants were required, contrary to their wishes, to swear an oath on the Holy Gospels in order to take their seats in the San Marino Parliament.
+It was held that this requirement was not compatible with article 9.
+No part of the Grand Chambers reasoning concerned the strength of the applicants convictions that they should not be required to swear the oath.
+The essential point is that the court held that article 9 protects the right of the non believer as well as that of the believer.
+I can see no basis in principle for treating the right to hold and not to hold political beliefs differently.
+Article 10 of the ECHR provides that everyone has the right to freedom of expression and that this right shall include freedom to hold opinions.
+That must include the freedom not to hold opinions.
+As Professor Barendt puts it in Freedom of Speech, OUP, 2005 (2nd ed), p 94: The right not to speak, or negative freedom of speech, is closely linked with freedom of belief and conscience and with underlying rights to human dignity, which would be seriously compromised by a legal requirement to enunciate opinions which are not in truth held by the individual.
+Mr Husain QC has also drawn attention to some comparative jurisprudence.
+In his celebrated judgment in West Virginia State Board of Education v Barnette (1943) 319 US 624, 642 Justice Jackson said: If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
+If there are any circumstances which permit an exception, they do not now occur to us.
+The Supreme Court upheld the challenge by Jehovahs Witnesses to the constitutionality of a state requirement that children in public schools salute and pledge loyalty to the US flag.
+The court held that the freedom not to speak was an integral part of the right to speak.
+At pp 634 635, Justice Jackson said: Nor does the issue as we see it turn on ones possession of particular religious views or the sincerity with which they are held.
+While religion supplies the appellees motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views hold such a compulsory rite to infringe constitutional liberty.
+Similarly, Sachs J in the Constitutional Court of South Africa stated in Christian Education South Africa v Minister of Education 2000 (10) BCLR 1051, para 36: There can be no doubt that the right to freedom of religion, belief and opinion in the open and democratic society contemplated by the Constitution is important.
+The right to believe or not to believe, and to act or not to act according to his or her beliefs or non beliefs, is one of the key ingredients of any persons dignity.
+It can therefore be seen that under both international and European human rights law, 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 express opinions.
+It is true that much of the case law and commentary is on freedom of belief in the context of religion, rather than other kinds of belief (whether political, philosophical or otherwise).
+But I see no basis for distinguishing between the freedom to hold and express different kinds of belief here.
+As Sachs J said, the right to believe or not to believe is a key ingredient of a persons dignity.
+The right to dignity is the foundation of all the freedoms protected by the Convention.
+I repeat what I said in HJ (Iran) at para 113: The right to dignity underpins the protections afforded by the Refugee Convention: see Canada (Attorney General) v Ward [1993] 2 SCR 689, approving Professor Hathaway, Law of Refugee Status (1991), p 108: The dominant view, however, is that refugee law ought to concern itself with actions which deny human dignity in any key way, and that the sustained or systemic denial of core human rights is the appropriate standard.
+Freedom to hold and express political beliefs is a core or fundamental right.
+As Mr Husain says, it would be anomalous, given that the purpose of the Convention inter alia is to ensure to refugees the widest possible exercise of their fundamental rights and freedoms, for the right of the unconcerned to be protected under human rights law, but not as a religious or political opinion under the Convention.
+Mr Swift accepts that political neutrality is an important human right protected by the Convention, but, he submits, only if the individual is a committed political neutral and not one to whom his neutrality is a matter of indifference.
+This is because there is no entitlement to protection under the Convention where the interference involves matters which are only at the margins of an individuals right to hold or not hold political opinions, and not at the core of that right.
+There is no entitlement to protection where what is required of the applicant does not oblige him to forfeit a fundamental human right.
+Mr Swift, therefore, draws a distinction between a person who is a conscientious or committed political neutral (A) and a person who has given no thought to political matters because the subject simply is of no interest to him (B).
+He accepts that the Convention protects A from persecution, because his political neutrality is a core or fundamental human right.
+The HJ (Iran) principle is capable of applying to A. Refugee status may not be denied to him simply because he would pretend to support a regime in order to avoid persecution.
+But Mr Swift says that the HJ (Iran) principle cannot apply to B because, in his case, false support for the regime would cause interference at the margin, rather than the core, of the protected right and would not cause him to forfeit a fundamental human right.
+Mr Swift seeks support for the distinction, in particular, from paras 72 and 115 of HJ (Iran) to which I have referred at paras 20 and 21 above.
+I would reject this distinction for a number of reasons.
+First, the right not to hold the protected beliefs is a fundamental right which is recognised in international and human rights law and, for the reasons that I have given, the Convention too.
+There is nothing marginal about it.
+Nobody should be forced to have or express a political opinion in which he does not believe.
+He should not be required to dissemble on pain of persecution.
+Refugee law does not require a person to express false support for an oppressive regime, any more than it requires an agnostic to pretend to be a religious believer in order to avoid persecution.
+A focus on how important the right not to hold a political or religious belief is to the applicant is wrong in principle.
+The argument advanced by Mr Swift bears a striking resemblance to the Secretary of States contention in HJ (Iran) that the individuals in that case would only have a well founded fear of persecution if the concealment of their sexual orientation would not be reasonably tolerable to them.
+This contention was rejected on the grounds that (i) it was unprincipled and unfair to determine refugee status by reference to the individuals strength of feeling about his protected characteristic (paras 29 and 121) and (ii) there was no yardstick by which the tolerability of the experience could be measured (paras 80 and 122).
+As regards the point of principle, it is the badge of a truly democratic society that individuals should be free not to hold opinions.
+They should not be required to hold any particular religious or political beliefs.
+This is as important as the freedom to hold and (within certain defined limits) to express such beliefs as they do hold.
+One of the hallmarks of totalitarian regimes is their insistence on controlling peoples thoughts as well as their behaviour.
+George Orwell captured the point brilliantly by his creation of the sinister Thought Police in his novel 1984.
+The idea if you are not with us, you are against us pervades the thinking of dictators.
+From their perspective, there is no real difference between neutrality and opposition.
+In Gomez v Secretary of State for the Home Department [2000] INLR 549, a starred decision of the Immigration Appeal Tribunal, Dr Storey put the point well at para 46: It will always be necessary to examine whether or not the normal lines of political and administrative responsibility have become distorted by history and events in that particular country.
+This perception also explains why refugee law has come to recognise that in certain circumstances neutrality can constitute a political opinion.
+In certain circumstances, for example where both sides operate simplistic ideas of political loyalty and political treachery, fence sitting can be considered a highly political act.
+There is no support in any of the human rights jurisprudence for a distinction between the conscientious non believer and the indifferent non believer, any more than there is support for a distinction between the zealous believer and the marginally committed believer.
+All are equally entitled to human rights protection and to protection against persecution under the Convention.
+None of them forfeits these rights because he will feel compelled to lie in order to avoid persecution.
+Secondly, the distinction suggested by Mr Swift is unworkable in practice.
+On his approach, the question arises: how important to the individual does the right not to hold political beliefs have to be in order to qualify for protection? On a spectrum of political non belief, at one end is the person who has carefully considered matters engaging the machinery of State, government, and policy (Goodwin Gill and McAdam, The Refugee in International Law, 3rd ed (2007) p 87) and conscientiously decided that he is not interested.
+He may, for example, have concluded that effective political governance is beyond the ability of man and that he cannot therefore support any political party or cause.
+At the other end is the person who has never given any thought to such matters and has no interest in the subject.
+There will also be those who lie somewhere between these two extremes.
+Where is the core/marginal line to be drawn? At what point on the spectrum of non belief does the non belief become a core or fundamental human right? The test suggested by Mr Swift would, to say the least, be difficult to apply.
+Unless compelled to do so, we should guard against introducing fine and difficult distinctions of this kind.
+In my view, there is no justification for calling on immigration judges to apply the distinction suggested by Mr Swift.
+It would be likely to be productive of much uncertainty and potentially inconsistent results.
+Thirdly, Mr Swifts suggested distinction between core and marginal rights is based on a misunderstanding of what we said in HJ (Iran).
+In order to understand what Lord Rodger and I said on the issue, it is necessary first to see what was said by the New Zealand Refugee Status Appeals Authority in Refugee Appeal No 74665/03.
+At para 82, the Authority said that if the right sought to be exercised by the applicant is not a core human right, the being persecuted standard of the Convention is not engaged.
+But if the right is a fundamental human right, the next stage is to determine the metes and bounds of that right.
+The Authority continued: If the proposed action in the country of origin falls squarely within the ambit of that right the failure of the state of origin to protect the exercise of that right coupled with the infliction of serious harm should lead to the conclusion that the refugee claimant has established a risk of being persecuted.
+The same point was made at para 90.
+For the purpose of refugee determination, the focus must be on the minimum core entitlement conferred by the relevant right.
+Thus, where the risk of harmful action is only that activity at the margin of a protected interest is prohibited, it is not logically encompassed by the notion of being persecuted.
+The point was repeated at para 120.
+At paras 99, 101 and 102, the Authority gave examples of the kind of activity which were at the margin of a protected right.
+Prohibition on a homosexual from adopting a child on the grounds of his sexual orientation would not be persecution, because adoption of a child was well on the margin of the right enjoyed by homosexuals to live their lives as homosexuals openly and free from persecution.
+The same point was made in relation to (i) the denial to post operative transsexuals of the right to marry, (ii) the denial to homosexuals of the right to marry and (iii) the prosecution of homosexuals for sado masochistic acts.
+It was suggested that, whether or not any of these involved breaches of human rights, they could not be said to amount to persecution since the prohibited activities in each case were at the margin of the protected right.
+In HJ (Iran), Lord Rodger gave as another possible example the applicant who claimed asylum on the ground that he feared persecution if he took part in a gay rights march.
+If a person would be able to live freely and openly as a gay man provided that he did not take part in gay rights marches, his claim for asylum might well fail.
+At paras 114 and 115 of my judgment too, I was saying no more than that a determination of whether the applicants proposed or intended action lay at the core of the right or at its margins was useful in deciding whether or not the prohibition of it amounted to persecution.
+I remain of that view.
+The distinction is valuable because it focuses attention on the important point that persecution is more than a breach of human rights.
+What matters for present purposes is that nothing that was said in the Authoritys decision or by us in HJ (Iran) supports the idea that it is relevant to determine how important the right is to the individual.
+There is no scope for the application of the core/marginal distinction (as explained above) in any of the appeals which are before this court.
+The situation in Zimbabwe as disclosed by RN is not that the right to hold political beliefs is generally accepted subject only to some arguably peripheral or minor restrictions.
+It is that anyone who is not thought to be a supporter of the regime is treated harshly.
+That is persecution.
+For the reasons that I have given, I would reject the restrictive approach suggested by Mr Swift to the application of the HJ (Iran) principle to these cases and hold that it applies to applicants who claim asylum on the grounds of a fear of persecution on the grounds of lack of political belief regardless of how important their lack of belief is to them.
+The second issue: imputed political belief
+The principle is not in doubt that an individual may be at risk of persecution on the grounds of imputed opinion and that it is nothing to the point that he does not in fact hold that opinion.
+Professor Hathaway, The Law of Refugee Status (1991), pp 155 156 states: The focus is always to be the existence of a de facto political attribution by the state of origin, notwithstanding the objective unimportance of the claimants political acts, her own inability to characterise her actions as flowing from a particular political ideology, or even an explicit disavowal of the views ascribed to her by the state.
+In Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees, April 2001, the UNHCR summarised the relevant law well at para 25: It is now generally agreed that imputed or perceived grounds, or mere political neutrality, can form the basis of a refugee claim.
+For example, a person may not in fact hold any political opinion, or adhere to any particular religion, but may be perceived by the persecutor as holding such an opinion or being a member of a certain religion.
+In such cases, the imputation or perception which is enough to make the person liable to a risk of persecution is likewise, for that reason, enough to fulfil the Convention ground requirement, because it is the perspective of the persecutor which is determinative in this respect.
+The application of this principle in any given case raises questions of fact.
+Persecution on the grounds of imputed opinion will occur if a declared political neutral is treated by the regime (or its agents) 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 political neutrality (and therefore his actual lack of support for the regime) would be discovered.
+It is well established that the asylum seeker has to do no more than prove that he has a well founded fear that there is a real and substantial risk or a reasonable degree of likelihood of persecution for a Convention reason: R v Secretary of State for the Home Department, Ex p Sivakumaran [1988] AC 958.
+I do not believe that any of this is controversial.
+How does it apply to the facts of these cases?
+The issue that is common to all these cases as regards imputed belief is whether there is a real and substantial risk that the political neutrality of the claimants would be discovered by the militia gangs and War Veterans who man road blocks even if the claimants were to dissemble and say that they support the regime.
+This raises two questions namely (i) whether the claimants would be likely to be stopped or face serious interrogation at road blocks at all; and (ii) if yes, whether their pretended support for the regime would be disbelieved.
+As regards the first question, the best evidence as to the likelihood of being stopped and interrogated at a road block is provided by RN.
+The AITs decision states that the militia groups and War Veterans operate in rural areas and urban districts (para 213) and across the country (para 216).
+The risk of persecution arises throughout the country (para 225) and people living in high density urban areas face the same risk from militias and War Veterans as those living in rural areas (para 228).
+But those living in more affluent low density urban areas or suburbs are likely to avoid such difficulties (para 229).
+If a failed asylum seeker is associated with the regime or is otherwise a person who would be returning to a milieu where loyalty to the regime is assumed, he will not be at risk simply because he spent time in the United Kingdom and sought to extend his stay by making a false asylum claim (para 230).
+In other words, it is only if an applicant returns to a milieu where loyalty to the regime is assumed that his claim is likely to fail at the first hurdle.
+As for the second question, the immigration judge would have to consider the kind of questions that the applicant might be asked when interrogated at the road block; how effective a liar the applicant would be when asserting loyalty to the regime; how credulous the interrogators would be in the face of such lies; whether the interrogators might ask the applicant to produce a Zanu PF card or sing the latest Zanu PF campaign songs and whether the applicant would be able to produce a card and sing the songs.
+It is difficult to see how a judge could provide confident answers to these questions.
+He or she would almost certainly be unable to avoid concluding that there would be a real and substantial risk that, if a politically neutral claimant were untruthfully to assert loyalty to the regime, his political neutrality would be discovered.
+To summarise, in the light of RN, 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 a milieu where political loyalty would be assumed and where, if he was interrogated at all, 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.
+Disposal
+I can now turn to the disposal of all four appeals in the light of my
+conclusion on the two principal issues.
+The facts relating to RTs case are set out at paras 4 and 5 above.
+The Secretary of State submits that there is no basis for concluding that, if RT were required to profess loyalty to the regime, she would be forced to lie.
+There was no record of any evidence as to her political views.
+The Tribunal merely found that she had never been politically active.
+Mr Swift submits that she may have been a fervent (albeit inactive) supporter of the regime.
+But DIJ Manuell found RT to be a credible witness and that she was in a position to explain that she has never been politically involved at home or abroad (para 25).
+Her evidence before IJ Hussain (which was accepted) was that on her return she would be required to demonstrate loyalty to the regime, which she could not do because she is not a political person and has not supported the party (para 34).
+Unless she would return to a milieu where loyalty to the regime was assumed, the only way that she could avoid the risk of persecution would be to feign support for the regime.
+In that event, having regard to my conclusions on the application of the HJ (Iran) principle, the Court of Appeal were right to uphold her claim to asylum.
+It is not suggested by Mr Swift that RT would return to a milieu where support for the regime would be assumed and where she would therefore not face the risk of hostile interrogation.
+In these circumstances, there was no case for remitting the case to the Tribunal.
+I would also reach the same conclusion on the basis of imputed opinion.
+The facts relating to SM are set out at para 6 above.
+In addition to taking issue with the way in which the Court of Appeal dealt with the HJ (Iran) principle, Mr Swift submits that they appear to have ignored or misunderstood RN where it was made clear (para 241) that a bare assertion that a person will be unable to prove loyalty is not enough for a successful claim, adding that this is especially so where the applicant has been found to be incredible.
+At paras 23 and 24 of the decision of IJ Charlton Brown, the judge concluded that, contrary to SMs claim, she had not been linked with the MDC, that she had been able to live in Zimbabwe without problems since 2002, and that she was unable to rely on any of the risk factors identified in RN.
+As to this, the Court of Appeal said at para 46: At first sight this is a much less meritorious case, and one can understand the judges reaction to her failure to give credible evidence.
+However, it was not enough to hold that she would be willing to lie as and when required, if the reason for doing so would be to avoid persecution.
+Nor is willingness to lie the same as ability to prove loyalty to the regime.
+On the other hand, in view of her lack of credibility overall, it remains open to question whether her case should fail for lack of proof as in TM.
+We will therefore allow the appeal and remit the case to the Upper Tribunal for redetermination.
+The Court of Appeal were correct.
+For all the reasons stated in RN, the fact that SMs claimed support for the MDC was rejected as being incredible was not decisive.
+The central question is whether there was a real and substantial risk that her loyalty to the regime could not be demonstrated.
+In view of her lack of credibility throughout, she might have difficulty in demonstrating that she did not have loyalty to the regime.
+But the case should be remitted to the Tribunal for that issue to be determined in the light of RN and in the light of what I have said about the HJ (Iran) principle and the issue of imputed opinion.
+There is no cross appeal on behalf of SM that her claim for asylum should be recognised by this court.
+I would dismiss this appeal.
+I have set out the findings by the AIT at para 7 above.
+The Court of Appeal allowed AMs appeal on the ground that the immigration judge had failed to address the issue as to his ability to show his loyalty to the regime (para 52).
+Like SM, he had not been held to be a credible witness.
+For that reason, the Court of Appeal did not feel able to substitute their own conclusion for that of the judge and remitted the case to the Tribunal.
+The Secretary of State advances no reasons particular to AMs case (as distinct from the HJ (Iran) principle) for overturning the decision of the Court of Appeal.
+There is no cross appeal by AM.
+I would, therefore, dismiss this appeal too.
+The facts relating to the case of KM are set out at paras 12 to 14 above.
+Mr Dove QC submits that the Court of Appeal should have allowed the appeal outright and not remitted the case to the Upper Tribunal for a third hearing.
+I have referred at para 14 above to the two reasons given by Pill LJ for his conclusion that, although KMs case was strong, it could not be said that it was bound to succeed before the Tribunal.
+The first was that an applicant who had been found to be an untruthful witness would not be assumed to be truthful about his inability to demonstrate loyalty to the regime.
+But, as I have already said, the circumstances in Zimbabwe as described in RN mean that the fact that an applicant is lacking in credibility may be a matter of little relevance on the key question of whether he will be able to demonstrate loyalty.
+As for the second reason, the milieu to which KM would be returned is likely to be of marginal relevance in this case.
+That is because, as was conceded before the Court of Appeal, there was a real risk that the fact that KMs son had been granted asylum in the United Kingdom on account of his MDC sympathies would come out on his return to Zimbabwe (para 6 Pill LJs judgment) and that this might place him in an enhanced risk category by making it more difficult for him to demonstrate his loyalty to the regime (para 12).
+I can well understand why the Court of Appeal decided to remit this case to the Tribunal.
+But it seems to me that, in the light of the concessions to which I have referred and the fact that KMs case was therefore very strong, it would not be just to subject him to a third Tribunal hearing.
+Overall conclusion
+For the reasons that I have given, I would dismiss the appeals of the Secretary of State in the cases of RT, SM and AM and allow the appeal of KM.
+LORD KERR
+For the reasons given by Lord Dyson, with which I entirely agree, I too would dismiss the appeals of the Secretary of State in the cases of RT, SM and AM and allow the appeal of KM.
+The starting point in consideration of these appeals must be that the purpose of the Refugee Convention is to protect people from persecution.
+In the extreme, repressive and anarchic conditions which obtain in Zimbabwe, the risk of being persecuted is all too real and predictable, albeit, on the evidence currently available, the incidence of that persecution is likely to be both random and arbitrary.
+As a general proposition, the denial of refugee protection on the basis that the person who is liable to be the victim of persecution can avoid it by engaging in mendacity is one that this court should find deeply unattractive, if not indeed totally offensive.
+Even more unattractive and offensive is the suggestion that a person who would otherwise suffer persecution should be required to take steps to evade it by fabricating a loyalty, which he or she did not hold, to a brutal and despotic regime.
+As a matter of fundamental principle, refusal of refugee status should not be countenanced where the basis on which that otherwise undeniable status is not accorded is a requirement that the person who claims it should engage in dissimulation.
+This is especially so in the case of a pernicious and openly oppressive regime such as exists in Zimbabwe.
+But it is also entirely objectionable on purely practical grounds.
+The intellectual exercise (if it can be so described) of assessing whether (i) a person would and could reasonably be expected to lie; and (ii) whether that dissembling could be expected to succeed, is not only artificial, it is entirely unreal.
+To attempt to predict whether an individual on any given day, could convince a group of undisciplined and unpredictable militia of the fervour of his or her support for Zanu PF is an impossible exercise.
+But all of the foregoing is by way of incidental preamble.
+The truly critical question in this appeal is whether there is a right in Refugee Convention terms not to have a political opinion.
+Ultimately, Mr Swift was driven to accept that there is such a right but he suggested that this right can be attenuated according to the disposition of the person who espouses a strictly apolitical stance.
+I consider that this central proposition is fundamentally flawed.
+The level of entitlement to protection cannot be calibrated according to the inclination of the individual who claims it.
+The essential character of the right is inherent to the nature of the right, not to the value that an individual places on it.
+And the need for a clear insight into that critical aspect of the right is well exemplified by the situation in Zimbabwe.
+If an apolitical individual fails to demonstrate plausibly that he or she is a sufficiently fervent supporter of Zanu PF, he or she will be deemed to be a political opponent, irrespective of how greatly he or she cherishes the right not to hold a political view.
+The status of deemed political opponent, whether it is the product of imputation of political opposition or merely the arbitrary decision of those testing the degree of conviction or fervour with which support for Zanu PF is expressed, is the gateway to persecution and that cannot be dependent on whether the lack of political opinion is due to a consciously held conviction or merely due to indifference.
+That is why the emphasis must be not on the disposition of the individual liable to be the victim of persecution but on the mind of the persecutor.
+In the present appeals it is clear that the question whether the treatment that the individuals might face if returned to Zimbabwe would amount to persecution is not in issue.
+Quite clearly it would be.
+Nor is there any reason to doubt that the motivation for simulating support for the regime on their parts would be because of their desire to avoid that persecution.
+The only basis, therefore, on which denial of their claim to refugee status can be sustained, is that their right not to hold a political opinion lies at the lower end of the core/marginal spectrum.
+As Mr Dove submitted, such an argument requires to be treated extremely circumspectly.
+Those instances where the right was found to lie at the marginal end of the continuum all involved a measure of voluntary control over the situation in which the individual who was claiming protection found himself.
+That is not the position here.
+But, in any event, if the core/marginal dichotomy has any relevance whatever, it is in making an assessment as to whether the species of infringement strikes at the essence of the right or merely at a less important aspect of it.
+For the reasons that Lord Dyson has given, it appears to me that the infringement is quintessentially a violation of the central core of the right not to hold a political opinion.
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+These two appeals relate to one of the rules currently in force by which the appellant, the Secretary of State for the Home Department, determines an application for a visa to enter or remain in the United Kingdom made by the spouse of a person who is present and settled in the UK (a marriage visa).
+The Secretary of State appeals against the order of the Court of Appeal dated 21 December 2010 (Sedley, Pitchford and Gross LJJ) [2010] EWCA Civ 1482, [2011] 3 All ER 81) by which it declared that her application of the rule so as to refuse marriage visas to the two effective respondents was unlawful as being so the majority concluded in breach of their rights under article 8 of the European Convention on Human Rights and Fundamental Freedoms 1950 (the ECHR).
+In effect pursuant to supplementary orders made by the Court of Appeal the Secretary of State has now granted marriage visas to each of the two respondents.
+But her appeals to this court, although academic for them, retain a general importance which has justified their continued prosecution.
+The rule is rule 277 of the Immigration Rules 1994 (HC395).
+The version of the rule which, as substituted by HC1113, came into force on 27 November 2008 was as follows: Nothing in these Rules shall be construed as permitting a person to be granted entry clearance, leave to enter, leave to remain or variation of leave as a spouse or civil partner of another if either the applicant or the sponsor will be aged under 21 on the date of arrival in the United Kingdom or (as the case may be) on the date on which the leave to remain or variation of leave would be granted.
+That rule therefore governed a spouse or civil partner.
+There were parallel rules which governed a fianc(e) or proposed civil partner (rule 289AA) and an unmarried or same sex partner (rule 295AA).
+A sponsor is defined by rule 6 as the person in relation to whom an applicant is seeking leave to enter or remain as their spouse (etc).
+Thus, for present purposes, the sponsor is the spouse who is present and settled in the UK, for example (as in each of the cases before the court) a British citizen present and ordinarily resident in the UK.
+The applicant is the other spouse.
+Prior to 27 November 2008 rule 277 like the parallel rules was in the same terms save only that its reference to age was under 18 rather than under 21.
+Such had been the rule since December 2004, when the minimum age for the applicant had been raised from 16 to 18 so as to become the same as the minimum age for the sponsor, which had been raised to the same extent in April 2003.
+With effect from 6 April 2010 rule 277 like the parallel rules was amended in a small and largely irrelevant respect.
+After the words under 21 were inserted, in parenthesis, the words or aged under 18 if either party is a serving member of HM Forces.
+The appeals require focus upon the Secretary of States purpose in amending rule 277 so as to provide that, with effect from 27 November 2008, a marriage visa should not in the absence of exceptional, compassionate circumstances which would attract the exercise of her discretion outside the ambit of the rules be granted until both the sponsor and the applicant had attained the age of 21.
+The Secretary of States purpose is clear.
+It was not to control immigration.
+It was to deter forced marriages.
+At the heart of the appeals is her analysis of the nexus between entry into a forced marriage and the increase in the minimum ages requisite for the grant of a marriage visa.
+No one could contend that the nexus is very obvious.
+B. FORCED MARRIAGE
+A forced marriage is a marriage into which one party enters not only without her or his free and full consent but also as a result of force including coercion by threats or by other psychological means: section 63A(4) and (6) of the Family Law Act 1996, inserted into it by section 1 of the Forced Marriage (Civil Protection) Act 2007 (the Act of 2007).
+The forcing of a person into marriage is a gross and abhorrent violation of her or his rights under, for example, article 16(2) of the Universal Declaration of Human Rights 1948, article 23(3) of the International Covenant on Civil and Political Rights 1966 and article 12 of the ECHR.
+A forced marriage is entirely different from an arranged marriage in which, in conformity with their cultural expectations, two persons consent to marry each other pursuant to an arrangement negotiated between their respective families.
+The prevalence of forced marriage within sections of our community in the UK has come increasingly to the attention of a shocked public during, say, the last 12 years as victims of it, or witnesses to it, have at last and less infrequently summoned the courage to report it.
+In 1999 the Home Office established a Forced Marriage Working Group, which published its findings in 2000.
+Parliament has responded actively to revelation of the problem by enactment of the Act of 2007, which provides the court with a flexible jurisdiction to make orders protective of a person who may be, or has been, forced into marriage.
+Under renewed discussion is whether there is any value in also making the act of forcing a person into marriage into a specific criminal offence.
+The other main instrument of the states response to the revelation of the problem has been the creation in 2005 by the Home Office and the Foreign and Commonwealth Office of the Forced Marriage Unit (the FMU).
+In November 2008 the Secretary of State published guidance under section 63Q of the Family Law Act 1996, as inserted by the Act of 2007.
+It was for the benefit of those exercising public functions potentially relevant to instances of forced marriage.
+In the guidance the Secretary of State addressed the motives of those who forced a person to marry in the following terms: 36 Some of the key motives that have been identified are: Controlling unwanted sexuality (including perceived promiscuity, or being lesbian, gay, bisexual or transgender) particularly the behaviour and sexuality of women.
+Controlling unwanted behaviour, for example, alcohol and drug use, wearing make up or behaving in a westernised manner.
+Preventing unsuitable relationships, e.g. outside the ethnic, cultural, religious or caste group.
+Protecting family honour or izzat.
+Responding to peer group or family pressure.
+Attempting to strengthen family links.
+Achieving financial gain.
+Ensuring land, property and wealth remain within the family.
+Protecting perceived cultural ideals.
+Protecting perceived religious ideals which are misguided.
+Ensuring care for a child or vulnerable adult with special needs when parents or existing carers are unable to fulfil that role.
+Assisting claims for UK residence and citizenship.
+Long standing family commitments.
+Thus Assisting claims for UK residence and citizenship was one of 13 suggested motives.
+Data included in the guidance or otherwise provided by the FMU suggest the following: (a) most persons forced into marriage in the UK are female; (b) for example 86% of the 815 possible cases of forced marriage considered by the FMU between September 2009 and February 2010 related to female victims; (c) most victims are aged between 13 and 29; (d) more particularly, of the 145 cases in 2005 in which the FMU provided direct support (as opposed to general or preliminary advice) to victims or potential victims of forced marriage, 44, i.e. 30%, related to victims aged between 18 and it is usually the parents (or one of them) of the victim who apply the force; 20; in 2006 the number of victims of that age was again 44 albeit out of 167 cases, i.e. 26%; and in 2007 the number was 69 out of 212 cases, i.e. 33%; (e) (f) most victims are members of South Asian families; and for example, of the cases in which the FMU gave general or preliminary (g) advice in 2008, 2009 and 2010, over 70% related to families of Pakistani, Bangladeshi or (to a much lesser extent) Indian origin.
+THE FACTS
+Mr Aguilar Quila, the first respondent, is a national of Chile who was born on 12 July 1990.
+His wife, Ms Amber Aguilar, is a British citizen who was born on 25 April 1991 and who until 2009 lived in England.
+They began a relationship in 2006 when, with his parents, the first respondent was living temporarily in London.
+Later, on 17 August 2008, he returned to the UK on a student visa which was expressed to expire on 3 August 2009.
+In September 2008 they became engaged and on 22 November 2008 they were married.
+The Secretary of State acknowledges that they married because they were in love.
+By then they were aware of the imminent change in the rule; but even under the old rule the first respondent was not then entitled to a marriage visa because, although he had attained the age of 18, his wife would not attain it until 25 April 2009.
+On 23 November 2008 the first respondent sought a marriage visa on the basis of exceptional, compassionate circumstances.
+The Secretary of State responded to the effect that the first respondents wife had not attained the age of 18 and that there were no such exceptional, compassionate circumstances as would justify a discretionary grant.
+On 1 May 2009, acting by the Joint Council for the Welfare of Immigrants, the first respondent sought a fresh decision on the basis that his wife had by then attained the age of 18 and by reference to fresh material which was said to call for the exercise of the Secretary of States discretion.
+But she responded to the effect that, because of the serious nature of forced marriages, the minimum age of both parties had been raised to 21; that by then the first respondents case fell to be determined and inevitably refused by reference to that new minimum age; and that, as before, there was no basis for a discretionary grant.
+She reminded the first respondent that, by virtue of the fact that he had leave to remain in the UK until 3 August 2009 and of the terms of section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002, he had no right of appeal against her decision.
+Thus, on 31 July 2009, the first respondent, accompanied by his wife, duly returned to Chile.
+But by then he had issued the claim for judicial review, which was to be dismissed by Burnett J in the Queens Bench Division, Administrative Court, on 7 December 2009 but was to be the subject of the successful appeal to the Court of Appeal.
+The exceptional, compassionate circumstances which the first respondent had pressed unavailingly on the Secretary of State related in particular to the position of his wife.
+He stated that it would be intolerable for them not to live together for the following three years but that the effect on her of removal to Chile for such a period would be highly detrimental.
+He explained that both her parents were teachers; that she wanted to become a teacher of modern languages; that it would take five years for her so to qualify in the attainment of an undergraduate degree for four years and of a Post Graduate Certificate of Education for the fifth year; that she had been offered a place at Royal Holloway, University of London, to study French and Spanish for four years beginning in October 2009, provided that (as later she duly did) she were to attain the requisite grades at A level; and that life in Chile for three years would set back the plans for her career to a grossly unfair and in that the marriage was not forced to a wholly unnecessary extent.
+In August 2010 the first respondent and his wife, who had been staying with his family in cramped conditions in Santiago, moved to Ireland, where she embarked on a course at University College, Dublin.
+The paradox that the first respondent and his wife were entitled to live in Ireland but not in the UK arose from the fact that, as an EEA citizen exercising treaty rights to live in an EU state, the first respondents wife had a right to live there with him.
+In February 2011 the Secretary of State granted the marriage visa to the first respondent with the result that, with his wife, he moved back to the UK.
+Bibi (as she invites the court to describe her), the effective second respondent, is a citizen of Pakistan who was born on 7 July 1990 and has always lived there.
+Her husband, Mohammed (as he invites the court to describe him), is a British citizen who was born on 8 April 1990 and who, save for some weeks in 2008, has always lived in England.
+They were married in Pakistan on 30 October 2008.
+It was a marriage which, in accordance with their cultural traditions, their two sets of parents had arranged.
+They allege and the Secretary of State does not dispute that each of them freely consented to the marriage and that they had been engaged since October 2007, whereupon they had begun to speak occasionally on the telephone.
+They had first met in Pakistan about a week prior to the marriage.
+On 1 December 2008 the second respondent, with the help of her father in law, applied to the Entry Clearance Officer (the ECO) in Islamabad, for a marriage visa.
+But the ECO had already told the father in law that, unless she were to apply prior to 27 November 2008 (which was to prove impracticable for her), her application would be rejected on the basis that, although both she and her husband had attained the age of 18, neither had attained the age of 21.
+On 19 January 2009 the ECO duly refused the application on that ground.
+Following the marriage the second respondent and her husband appear to have cohabited briefly in Pakistan perhaps only for some weeks whereupon he returned to England.
+In April 2009, together with her husband, she applied to the Administrative Court for permission to apply for judicial review of the ECOs refusal.
+It was against His Honour Judge Pearls refusal of permission on 5 August 2009 that she brought her successful appeal to the Court of Appeal.
+In May 2011 the Secretary of State granted the marriage visa to her, with the result, I presume, that she has joined her husband in the UK.
+D. THE GENESIS OF THE AMENDMENT TO RULE 277
+On 22 September 2003 the Council of the European Union adopted Directive 2003/86/EC.
+Its purpose was to determine the conditions under which third country nationals, i.e. not citizens of the EU, who were residing lawfully in an EU state could, by sponsorship, secure entry to it for their spouses and other family members.
+It did not address, even implicitly, how an EU state should respond to such requests when made by one of its own citizens or by a citizen of another EU state.
+Article 4(5) provided: In order to ensure better integration and to prevent forced marriages Member States may require the sponsor and his/her spouse to be of a minimum age, and at maximum 21 years, before the spouse is able to join him/her.
+The UK, Ireland and Denmark were not bound by the directive.
+As it happens, Denmark had already in 2002 raised to 24 the minimum ages both for the applicant and for the sponsor, and indeed in effect for all sponsors permanently resident in Denmark: see now section 9(1)(i) of the Aliens (Consolidation) Act 2009.
+At the time when the ages were raised, it was argued not only that the change would promote better integration of foreign spouses into Danish society but also that it would contain forced marriage.
+But subsequent research in Denmark did not confirm that the reform had reduced forced marriage; and it highlighted negative and socially alienating effects on the reasonable aspirations of young spouses whose marriages were not forced.
+In about 2004, in the wake of the directive, several other EU states, such as Germany and the Netherlands, raised their minimum ages to 21 and, again at least in the case of some such states, not merely in the case of the limited category of potential sponsors who had been the subject of the directive.
+I will assume that such states made the change in the hope of achieving each of the goals described in the article: but there is no evidence as to whether their hope has proved to be justified in either respect.
+In the above circumstances it was entirely appropriate that the Secretary of State should examine whether the minimum ages for a marriage visa should be raised to 21 or 24 in the UK.
+In 2006 she commissioned Professor Hester and a team at Bristol University to prepare a report on the merits of any such change.
+But Professor Hesters report, dated 15 February 2007, was expressly negative.
+Her first recommendation was that [t]he age of sponsorship/entry should not be raised either to 21 or 24.
+She said that the predominant view across all aspects of the research was that any such increase would be detrimental and, in particular, discriminatory on racial and ethnic grounds and with regard to arranged and love marriages.
+The Secretary of State did not publish Professor Hesters report; and it was later published independently.
+It was the view of the Secretary of State and of two external peer reviewers that, while the methodology used for the research had been sound, the report was marred by unsubstantiated statements, unclear terminology and sampling bias, and thus that its findings should be treated with considerable caution.
+In these proceedings there has been no debate about the validity of these criticisms.
+In December 2007 the Secretary of State issued a consultation paper entitled Marriage to Partners From Overseas.
+The main questions were whether, in order to reduce the incidence of forced marriage, the minimum ages for a marriage visa should be increased to 21.
+A subsidiary question was whether a person should be required to declare her intention to be a sponsor prior to departure from the UK in order to contract a marriage abroad.
+On 13 June 2008 the Home Affairs Select Committee of the House of Commons published a report entitled Domestic Violence, Forced Marriage and Honour Based Violence.
+It was a magisterial report upon various types of domestic abuse in the UK and it extended far beyond the subject of forced marriage.
+But the report included a section on the question which the Secretary of State had put out for consultation.
+It noted that the use of visa application rules in order to tackle forced marriage was controversial.
+It concluded as follows: 110.
+The testimony we heard from forced marriage survivors suggests that the desire to procure a marriage visa for a spouse can be an important factor in forced marriage.
+When we asked for their views on this issue, survivors told us that raising the age of sponsorship for marriage visas from 18 to 21 could better equip victims to refuse an unwanted marriage.
+However, associated with such a change is a significant risk that young people would be kept abroad for sustained periods between a marriage and being able to return to the UK with their spouse. 111.
+We have not seen sufficient evidence to determine whether or not raising the age of sponsorship would have a deterrent effect on forced marriage.
+Given the potential risks involved, we urge the Government to ensure that any changes it proposes to its policy on visa application procedures in respect of sponsorship are based on further research and conclusive evidence as to the effect of those changes.
+This evidence must demonstrate that any changes will not inadvertently discriminate against any particular ethnic groups.
+In July 2008, in the light, inter alia, of the responses to the consultation, the Secretary of State issued her proposals for reform in a report entitled Marriage Visas: The Way Forward.
+Although there were proposed provisions which would equip applicants for marriage visas with greater knowledge of English, its main proposal was to increase the minimum ages from 18 to 21.
+The report stated as follows: 3.4 We believe that there will be a number of benefits involved in raising the age, these include: It will provide an opportunity for individuals to develop maturity and life skills which may allow them to resist the pressure of being forced into a marriage.
+It will provide an opportunity to complete education and training.
+It will delay sponsorship and therefore time spent with (sometimes abusive) spouse if the sponsor returns to the UK.
+It will allow the victim an opportunity to seek help/advice before sponsorship and extra time to make a decision about whether to sponsor.
+CONSULTATION RESPONSES 3.5 Supporters of the increased sponsorship age felt the proposal: provided an opportunity for individuals to develop maturity and life skills. removed young people from parental pressure to marry. gave them an opportunity to complete education and training.
+Opponents raised a variety of reasons against the proposal, stating that it: could be perceived as discrimination based on cultural differences. was detrimental to the human rights of young people. would not prevent forced marriage since this affects people of all ages. would penalise those with genuine marriage intentions.
+Then the report quoted the urgent request recently made by the Home Affairs Select Committee that no increase in the minimum ages be made without conclusive evidence that it would deter forced marriage and not be discriminatory.
+The reports response was as follows: 3.8 We believe there is such conclusive evidence because reports of forced marriage peak sharply at ages 18 and above.
+By age 21, reports of forced marriage begin to decline sharply.
+There was then a reference, in tabular form, to the statistics provided by the FMU about the age of victims of forced marriage, to which I have referred in para 11(d) above.
+But the response at para 3.8 above to the Select Committees call for conclusive evidence was wholly inadequate: for the call had been for evidence not about the age of victims of forced marriage but about whether an increase in the minimum ages for a marriage visa would deter it.
+The relevant section of the report concluded as follows: 3.14 We have carefully considered the issues raised by the Home Affairs Select Committee and the respondents to the consultation.
+We have paid particular attention to whether an increase in age from 18 21 would be proportionate given concerns that raising the age would penalise a number of genuine couples and discriminates against specific religious communities where the average age of marriage is likely to be lower including such communities where forced marriage is uncommon. 3.15 The committee was also concerned that there is a significant risk that young people would be kept abroad for sustained periods between a marriage and being able to return to the UK with their spouse.
+However, this has not been the general pattern of movement observed by the Forced Marriage Unit who indicated that sponsors generally return to the UK until they reach the sponsorship age.
+There was no attempt in the document to explain why the Secretary of State had concluded that the increase would indeed be proportionate in the light of its effect on those who entered into marriages which were not forced and of whom at least one was aged between 18 and 21.
+There was no attempt even to address the size of that constituency.
+In an annexe to the report there was an analysis of the responses to the consultation.
+It was to the effect that, of the 89 relevant respondents, 45 had supported the increase, 41 had opposed it and three had expressed mixed views.
+Of the 45 in support, most had suggested that an increasing level of maturity and education during the three years would help a potential sponsor to resist being forced to marry but four of them had nevertheless doubted whether the increase would achieve its stated aim.
+Of the 41 in opposition, many had suggested that it would be discriminatory towards ethnic communities in which marriage at a young age was the cultural norm and would impact unfairly on the parties to marriages in which at least one of them was aged between 18 and 21 in that most of such marriages were not forced.
+In general the analysis of responses in the annexe was fairly summarised in para 3.5 of the document, set out at para 27 above.
+THE ENGAGEMENT OF ARTICLE 8, ECHR
+In R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368, Lord Bingham suggested, at para 17, that the engagement of article 8 depended upon an affirmative answer to two questions, namely whether there had been or would be an interference by a public authority with the exercise of a persons right to respect for his private or family life and, if so, whether it had had, or would have, consequences of such gravity as potentially to engage the operation of the article.
+Having analysed the authority, namely Costello Roberts v United Kingdom (1993) 19 EHRR 112, which, at para 18, Lord Bingham had cited by way of justification of the terms in which he had cast his second question, the Court of Appeal in AG (Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ 801, [2008] 2 All ER 28, observed, at para 28, that the threshold requirement referable to the nature of the consequences was not a specially high one.
+Mr McCullough QC, on behalf of the Secretary of State, concedes that family life arose upon the marriage of each of the respondents to their sponsors notwithstanding that, at the date of the refusals of the marriage visas, it had scarcely been established in the case of the second respondent and was relatively undeveloped in the case of the first respondent.
+Counsel correctly suggests, however, that the more exiguous is the family life, the more substantial are the requisite consequences.
+These were two British citizens who had lived throughout their lives in the UK and who, aged 17 and 18 respectively, had just embarked upon a consensual marriage.
+The refusal to grant marriage visas either condemned both sets of spouses to live separately for approximately three years or condemned the British citizens in each case to suspend plans for their continued life, education and work in the UK and to live with their spouses for those years in Chile and Pakistan respectively.
+Unconstrained by authority, one could not describe the subjection of the two sets of spouses to that choice as being other than a colossal interference with the rights of the respondents to respect for their family life, however exiguous the latter might be.
+But central to this appeal is Mr McCulloughs reliance in this regard on the decision of the ECtHR in Abdulaziz v United Kingdom (1985) 7 EHRR 471.
+Three women, all lawfully settled in the UK, had married third country nationals but at any rate at first the Secretary of State had refused permission for their husbands to remain with them, or join them, in the UK.
+In the second and third cases, as a result of a relaxation of the Immigration Rules, adequate permissions had ultimately been granted and had rendered the applications largely academic.
+In the present proceedings the Court of Appeal distinguished the courts decision in Abdulaziz on the ground that the three women were not British citizens but women of other nationalities with, therefore, a right of abode elsewhere.
+But in the first case the woman had been deprived of her Malawi citizenship and, at the date of the refusal, was stateless; she almost certainly had no right of abode in Malawi.
+In the second case the woman had become a British citizen albeit following the date of the refusal.
+And in the third case the woman, albeit not a British citizen until later, was a citizen of the United Kingdom and Colonies at the date of the refusal.
+In these circumstances it is accepted on behalf of the respondents that the ground of distinction favoured by the Court of Appeal is untenable.
+The decision of the ECtHR in Abdulaziz was that the refusals of permission had not infringed the rights of the women and of their husbands to respect for their family life under article 8 but that, in that the ground for the refusals had been a rule which had afforded a different and unjustified treatment of male, as opposed to female, spouses of persons lawfully settled in the UK, the women had suffered discrimination on the ground of sex in violation of their rights under article 14, taken together with article 8, of the Convention.
+The importance of the decision for present purposes is the route by which the court came to reject the complaint under article 8 alone.
+The majority held that article 8 was not engaged; two judges, however, concurred in the conclusion in relation to article 8 only on the basis that, although the article had been engaged, the interference with respect for the family life of the applicants had been justified under article 8(2).
+In para 66 to para 68 of their judgment the majority stressed that: (a) the suggested obligation of the state was a positive one i.e. to take active steps to admit the husbands and especially as far as positive obligations are concerned, the notion of respect is not clear cut; immigration control was an area in respect of which states enjoyed a wide margin of appreciation; (b) (c) (d) the rights of the husbands to enter, or remain in, the UK under the rules were known to be precarious when the marriages were contracted; and the extent of a states obligation to admit spouses of settled immigrants depended upon the circumstances of each case and the women had not shown that they could not establish family life in their own or their husbands home countries.
+The majority also said, at para 68: The duty imposed by article 8 cannot be considered as extending to a general obligation on the part of a contracting state to respect the choice by married couples of the country of their matrimonial residence and to accept the non national spouses for settlement in that country.
+The above proposition has recently been cited with approval both in the ECtHR (see Y v Russia (2008) 51 EHRR 21, at para 103) and in this court (see ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 WLR 148, at para 19, per Baroness Hale).
+Four decisions of the ECtHR subsequent to Abdulaziz deserve attention.
+First, Gl v Switzerland (1996) 22 EHRR 93.
+A Turkish father, who had been permitted on humanitarian grounds to reside with his wife in Switzerland, failed to establish that, by refusing to allow their seven year old son to join them in Switzerland, the state had interfered with respect for his family life.
+Although, therefore, the court applied the decision in Abdulaziz, it stressed, at para 41, that the father and his wife had no permanent right of abode in Switzerland.
+In a powerful dissenting opinion two judges explained why in their opinion the state had not only interfered with the applicants right under article 8 but, by reference to the terms of its paragraph two, had violated it.
+In effect they pointed out, at para 7 and para 8, that in Abdulaziz stress had been laid on the fact that the disputed obligation was positive (to allow the husbands to reside in the UK); that the disputed obligation in the present case was similar (to allow the son to reside in Switzerland); that, where the challenge was to the states removal of a person, the disputed obligation was negative (not to remove him); that it would be illogical if this elusive difference were to affect whether there had been interference with rights under article 8; and that indeed, since the decision in Abdulaziz in 1985, the difference in the courts treatment of positive and negative obligations had dwindled away.
+Second, Boultif v Switzerland (2001) 33 EHRR 1179.
+An Algerian citizen married a Swiss citizen and was permitted to reside in Switzerland.
+Following his conviction for a robbery the state refused to extend his residence permit and he was removed from Switzerland.
+The court found that his right under article 8 had been infringed.
+The court, at para 40, summarily addressed the initial question whether the state had interfered with his right as follows: In the present case, the applicant, an Algerian citizen, is married to a Swiss citizen.
+Thus, the refusal to renew the applicants residence permit in Switzerland interfered with the applicants right to respect for his family life The question whether the couple could reasonably live together in Algeria was answered, negatively, at para 53, only in the course of the courts enquiry into whether the interference was justified.
+Third, Tuquabo Tekle v The Netherlands [2006] 1 FLR 798.
+A mother, father and their three sons were of Eritrean ethnicity but lived in the Netherlands and had acquired Dutch citizenship.
+When leaving Eritrea in 1989, the mother had left behind a daughter, then aged eight.
+When she was aged 15, an application was made for her to be allowed to enter the Netherlands in order to live with the family; but it was refused.
+The court held that, by the refusal, the state had violated the rights under article 8 of all six of its members.
+The court observed, at para 41 and para 42, that the asserted obligation of the state was positive, that the boundaries between the states positive and negative obligations under this provision do not lend themselves to precise definition and that the applicable principles are, nonetheless, similar.
+The minority view in Gl had become that of the majority.
+The court did not tarry to consider interference: it moved straight to justification.
+And fourth, Rodrigues da Silva, Hoogkamer v Netherlands (2006) 44 EHRR 729.
+A Brazilian citizen lived, albeit unlawfully, in the Netherlands.
+She gave birth to a daughter who lived with the father but with whom she had contact.
+The court held that the states refusal to grant a residence permit to the mother had violated her right and that of the daughter under article 8.
+The court acknowledged, at para 38, that, in that the state had never granted a residence permit to the mother, its breach was of a positive, rather than of a negative, obligation.
+The difficulty for the respondents which arises out of the case of Abdulaziz lies less in the proposition at para 68 of the judgment, set out in para 36 above, and more in the actual decision of the majority.
+The proposition is only to the effect that article 8 imposes no general obligation on a state to facilitate the choice made by a married couple to reside in it.
+On analysis, the proposition is unexceptionable: it invites, instead, a fact specific investigation, which logically falls within the realms of whether the states obstruction of that choice is justified under paragraph 2.
+But the actual decision enables Mr McCullough to ask: inasmuch as there was not even an interference with the rights under article 8 of the three women in Abdulaziz in refusing to allow their husbands to join them, or remain with them, how can the analogous decisions of the state in the present cases generate a different conclusion?
+Having duly taken account of the decision in Abdulaziz pursuant to section 2 of the Human Rights Act 1998, we should in my view decline to follow it.
+It is an old decision.
+There was dissent from it even at the time.
+More recent decisions of the ECtHR, in particular Boultif and Tuquabo Tekle, are inconsistent with it.
+There is no clear and consistent jurisprudence of the ECtHR which our courts ought to follow: see R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295 at para 26, per Lord Slynn.
+The court in Abdulaziz was in particular exercised by the fact that the asserted obligation was positive.
+Since then, however, the ECtHR has recognised that the often elusive distinction between positive and negative obligations should not, in this context, generate a different outcome.
+The area of engagement of article 8 in this limited context is, or should be, wider now.
+In that in Tuquabo Tekle the states refusal to admit the 15 year old daughter of the mother, in circumstances in which they had not seen each other for seven years, represented an interference with respect for their family life, the refusals of the Secretary of State in the present case to allow the foreign spouses to reside in the UK with the British citizens with whom they had so recently entered into a consensual marriage must a fortiori represent such an interference.
+The only sensible enquiry can be into whether the refusals were justified.
+F. JUSTIFICATION UNDER ARTICLE 8(2)
+The burden is upon the Secretary of State to establish that the interference with the rights of the applicants under article 8, wrought by the amendment to rule 277 effective from 27 November 2008 (the amendment), was justified under paragraph 2 of the article: see Marcic v Thames Water Utilities Ltd [2003] UKHL 66, [2004] 2 AC 42, para 37.
+But in an evaluation which transcends matters of fact it is not in my view apt to describe the requisite standard of proof as being, for example, on the balance of probabilities.
+The amendment had a legitimate aim: it was for the protection of the rights and freedoms of others, namely those who might otherwise be forced into marriage.
+It was in accordance with the law.
+But was it necessary in a democratic society? It is within this question that an assessment of the amendments proportionality must be undertaken.
+In Huang v Secretary of State for the Home Department [2007] 2 AC 167, Lord Bingham suggested, at para 19, that in such a context four questions generally arise, namely: a) b) c) d) is the legislative objective sufficiently important to justify limiting a fundamental right? are the measures which have been designed to meet it rationally connected to it? are they no more than are necessary to accomplish it? do they strike a fair balance between the rights of the individual and the interests of the community? In the present case the requisite enquiry may touch on question (b) but the main focus is on questions (c) and (d).
+But what is the nature of the courts enquiry? In R (SB) v Governors of Denbigh High School [2007] 1 AC 100 Lord Bingham said, at para 30: it is clear that the court's approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time.
+Proportionality must be judged objectively, by the court Lord Browns call, at para 91 below, for the courts in this context to afford to government a very substantial area of discretionary judgement is at odds with my understanding of the nature of their duty.
+Indeed, in the case of Huang cited above, Lord Bingham proceeded to explain, at para 16, that it would be wrong to afford deference to the judgments of the Secretary of State on matters related to the above questions albeit that appropriate weight had to be given to them to the extent, in particular, that she was likely to have had access to special sources of knowledge and advice in connection with them.
+He added, at para 17, that, notwithstanding the limited right of Parliament to call upon the Secretary of State to reconsider proposed changes in the Immigration Rules provided by section 3(2) of the Immigration Act 1971, it would go too far to say that any changes ultimately made had the imprimatur of democratic approval such as would be relevant in particular to any answer to question (d) set out in para 45 above.
+In the present appeals the questions identified above fall upon two sides.
+One side asks whether, and if so to what extent, the amendment is likely to have deterred, and to continue to deter, forced marriages.
+The other side asks how many parties to unforced marriages are likely to be condemned by the amendment to suffer the interference with their rights exemplified in the two cases before the court.
+The Secretary of States contention that the amendment is likely to deter forced marriages remains based upon the four bullet points included in para 34 of her report entitled Marriage Visas: The Way Forward, set out in para 27 above.
+Her main suggestion is that the passage of up to three years should strengthen the ability of either the intended or the actual victim of a forced marriage to resist either entry into it or her later act of sponsorship which, were she to have remained living in the UK, would enable the spouses to cohabit here.
+The suggestion is tenable.
+But ten other questions arise and, since they are but questions, there is no need for me to identify in the materials and submissions presented to the court the source from which they come.
+In what follows I will, for convenience, take the victim of a forced marriage to be a girl present and settled in the UK whose parents force her to marry a man resident abroad without a pre existing right of abode in the UK.
+The ten questions are as follows: a) Of the 13 motives for forcing a marriage suggested in para 36 of the guidance published by the Secretary of State in November 2008, set out in para 10 above, how prevalent in the genesis of forced marriages is that of Assisting claims for UK residence and citizenship? b) From the fact that a forced marriage has precipitated an application for a marriage visa does it follow that the motive behind it was immediately to secure the visa and that, were it not immediately available, the marriage would not have occurred? c) Even if by virtue of the amendment, the ages of the girl and/or of the man were such as to preclude the grant of a marriage visa for up to three years, might the parents nevertheless force the girl into the marriage in order, for example, to prevent her from entering into a consensual marriage which they regarded as unsuitable? d) Even if the effect of the amendment were to preclude the immediate grant of a marriage visa, might the girl nevertheless be forced to marry the man abroad and thereupon be kept under control abroad until their ages were such as to enable her successfully to sponsor his application for a visa? In the example at (d) might the girl kept under control abroad there have a lesser opportunity to escape from the forced marriage than if the rules had enabled her to set up home with the man in the UK immediately following the marriage? e) f) Alternatively to the example at (d), might the girl be brought to the UK following the forced marriage and be kept under control in the UK until their respective ages were such as to enable her successfully to sponsor the mans application for a visa? g) Even if the preclusion of the grant of a marriage visa for up to three years were to deter her parents from forcing the girl to marry at that stage, might the result be an increased intensity of control on their part over her for that period whether by moving her abroad or by continuing to keep her in the UK and, in either event, would her increasing maturity be likely to enable her to combat it? h) How readily could one or more false certificates of birth be obtained which would deceive the immigration authorities into accepting that the girl and the man were both aged over 21? i) Might the effect of the amendment be to precipitate a swift pregnancy in the girl, following the forced marriage and an act or acts of rape, such as might found an application for a discretionary grant of a marriage visa by reference to exceptional, compassionate circumstances? j) Even if the effect of the amendment were to deter her parents from forcing the girl to marry a man resident abroad without a pre existing right of abode in the UK, might they instead force her to marry a man with UK or EU citizenship or some other pre existing right of abode in the UK?
+The ten questions are not easily answered.
+Professor Hester and her team attempted to address most, if not all, of them but, for reasons good or bad, the Secretary of State did not accept her report.
+In June 2008 the Home Affairs Select Committee urged the Secretary of State not to introduce the amendment until, following further research, there was conclusive evidence about its effect.
+But she proceeded to introduce it.
+The questions remain unanswered.
+The Secretary of State has failed to demonstrate that, when she introduced it, she had robust evidence of any substantial deterrent effect of the amendment upon forced marriages.
+I turn to unforced marriages.
+What was the likely scale of the inevitably detrimental effect of the amendment on unforced marriages.
+A subsidiary question, raised by the Home Affairs Select Committee in June 2008, was whether the detrimental effect was likely to be visited disproportionately upon members of communities with a tradition of marriage at a young age.
+In this regard the evidence of the Secretary of State in these proceedings was provided by Ms Smith, Deputy Director of Immigration Policy.
+She said: 17.
+The question of proportionality in terms of the impact upon couples intending to enter a marriage that was not forced where one or both of the couple are aged under 21 was considered carefully when drafting the policy. 20. the numbers affected by the rule change constituted a very small proportion of those applying for marriage visas for the UK.
+In 2006, for example, 7% (3,420) of spouses granted leave to enter the UK were aged between 18 and 20 and 2.5% (520) of people granted leave to remain in the UK as a spouse were within this age group.
+In 2007, 2.7% (1,245) of spouses granted leave to enter and 2.6% (700) of spouses granted leave to remain in the UK as a spouse were aged 18 to 20 21.
+We concluded that as the policy would affect less than 3% of those granted both leave to enter and leave to remain in the UK as a spouse in 2007, and as the evidence demonstrated that the rates of forced marriage were highest amongst those aged 17 20 in 2005 2008, the policy would represent a proportionate response to the issue of forced marriage, and the importance of protecting the rights and freedoms of vulnerable persons who might be forced into marriage would outweigh the significance of any adverse impact on
+particular communities or age groups
+But it establishes nothing to note first that 3,940 and 1,945 marriage visas were granted in 2006 and 2007 respectively to those aged between 18 and 20; second that at any rate the figure for 2007 was less than 3% of all marriage visas granted in that year (therefore presumably amounting to about 65,000); and that the rates of forced marriage were highest (ie about 30% see para 11(d) above) among those aged between 17 or 18 and 20.
+To deny marriage visas to 3,940 or even only to 1,945 applicants in a year is, irrespective of percentages, to deny them in a vast number of cases.
+The relevant question relates to the likely size of forced marriages within these numbers.
+The evidence does not begin to provide an answer to this question.
+By referring back to para 11(d) above, we can compare the number of cases in 2006 in which the FMU provided support to victims or potential victims of forced marriage aged between 18 and 20, namely 44, with the number of visas granted to that age group, in that year, namely 3,940; for 2007, the comparison is of 69 with 1,945; and, albeit only partly visible in what I have set out above, the evidence suggests a comparison for 2005 of 44 with 3,065.
+But the above exercise is hardly worth the undertaking.
+For on the one hand the FMUs figures relate to all forced marriages, irrespective of whether the spouse may reside in the UK only pursuant to a marriage visa.
+On the other hand and no doubt much more importantly the FMUs figures understandably represent only a proportion of all intended forced marriages.
+So double them? Or treble them? Or multiply them by ten? The only conclusion soundly available on the evidence before the court not challenged by the Secretary of State save in relation to the emotive word exile is, in the words of Sedley LJ in the Court of Appeal, that rule 277 is predictably keeping a very substantial majority of bona fide young couples either apart or in exile and that it has a drastic effect on thousands of young adults who have entered into bona fide marriages.
+As the Secretary of State acknowledges, the amendment is, in the words of Gross LJ, a blunt instrument.
+On 10 May 2011 the Home Affairs Select Committee of the House of Commons published a report, entitled Forced Marriage, by which it reviewed developments in relation to the matters which it had addressed in its report published on 13 June 2008.
+In a short section it noted the amendment introduced by the Secretary of State and the decision of the Court of Appeal in these proceedings.
+It then summarised evidence which it had received both from Karma Nirvana, a respected organisation providing support to victims or potential victims of forced marriage, and from Southall Black Sisters, an intervener in these appeals and an equally respected organisation dedicated to the protection of black and Asian women from abuse of all types including forced marriage.
+The committee stated: 16.
+Karma Nirvana supported the change in the Immigration Rules on the grounds that: We at Karma Nirvana have received feedback from victims that they have been helped by the rule.
+On the helpline we receive a number of calls from potential victims (and professionals on their behalf) under the age of 21 years asking about their legal position.
+Most, if not all, seem quite relieved to find that they have extra breathing space in which to make up their minds. 17.
+However, Southall Black Sisters disagreed that the change has had a positive effect, stating that it does not in reality protect victims from forced marriage, but simply increases pressure on them to remain within an abusive situation, and discriminates against migrant communities.
+In evidence to our predecessor Committee in March 2010, Nazir Afzal of the Crown Prosecution Service, had mixed views: I have spoken to several members of the third sector and police officers and they tell me that it has had a very positive effect in terms of the people who would ordinarily have been forced into marriage at an earlier age several hundred women have not been forced into marriage because they have been given the opportunity to wait until beyond 21 It has sent out a message to some families and to some communities that they need to be taking this a little bit more seriously than they have done.
+However, there has been an increase in relation to fraud involving birth certificates obtained abroad for individuals who are trying to pretend that they are 21 when they are not. 18.
+We have received mixed evidence about the impact of the change in the Immigration Rules in 2008 to require sponsors of marriage visas and their incoming spouses to be over the age of 21.
+We recognise that the change may be seen as discriminatory and has the potential for young people to be held in abusive situations for longer; however, it has undoubtedly helped a number of young people to resist forced marriage.
+The Secretary of State suggests that the Select Committees recent report, not available to the Court of Appeal, remedies any deficiencies in her case in relation to the proportionality of the amendment and thus to the justification for her interference with the rights of the respondents.
+I disagree.
+Although its reference to discrimination against migrant communities is, by implication, a reference to unforced marriages within those communities, the Select Committees report is, as its title suggests, upon forced marriage; and the focus of the conflicting evidence which it surveyed related to whether the amendment had succeeded in deterring it.
+The committee did not also weigh its effect on unforced marriages in the manner mandated of the court by article 8(2).
+There is a helpful parallel with the decision in R (Baiai) v Secretary of State for the Home Department [2008] UKHL 53, [2009] AC 287.
+In order to prevent marriages of convenience in the UK the Secretary of State introduced a scheme under which certain persons subject to immigration control required her written permission to marry and would not receive it unless they were present in the UK pursuant to a grant of leave for more than six months of which at least three months was unexpired.
+The House of Lords held that, notwithstanding that the right to marry under article 12 was not qualified in the way in which article 8(2) qualified the right in article 8(1), the state could take reasonable steps to prevent marriages of convenience; but that the scheme represented a disproportionate interference with the right to marry.
+It was, said Lord Bingham at para 31, a blanket prohibition on exercise of the right to marry by all in the specified categories, irrespective of whether their proposed marriages are marriages of convenience.
+The scheme, said Lady Hale at para 43, was overinclusive and [m]aking a serious attempt to distinguish between the sham and the genuine was considered too difficult and too expensive.
+On 14 December 2010, in ODonoghue v United Kingdom (Application No 34848/07), the ECtHR approved the decision in Baiai and extended it to two later versions of the Secretary of States scheme.
+Furthermore, in Thlimmenos v Greece (2000) 31 EHRR 411 it held that the application of a rule that a felon could not become a chartered accountant infringed the rights under article 14, taken in conjunction with article 9, of a pacifist convicted of the felony of refusing to perform military service.
+The court observed, at para 47, that it was legitimate to exclude some felons from entitlement to become chartered accountants but that there was no objective and reasonable justification for having treated the applicant in that way.
+I would, in conclusion, acknowledge that the amendment is rationally connected to the objective of deterring forced marriages.
+So the Secretary of State provides a satisfactory answer to question (b) set out in para 45 above.
+But the number of forced marriages which it deters is highly debatable.
+What seems clear is that the number of unforced marriages which it obstructs from their intended development for up to three years vastly exceeds the number of forced marriages which it deters.
+Neither in the material which she published prior to the introduction of the amendment in 2008 nor in her evidence in these proceedings has the Secretary of State addressed this imbalance still less sought to identify the scale of it.
+Even had it been correct to say that the scale of the imbalance was a matter of judgement for the Secretary of State rather than for the courts, it is not a judgement which, on the evidence before the court, she has ever made.
+She clearly fails to establish, in the words of question (c), that the amendment is no more than is necessary to accomplish her objective and, in the words of question (d), that it strikes a fair balance between the rights of the parties to unforced marriages and the interests of the community in preventing forced marriages.
+On any view it is a sledge hammer but she has not attempted to indentify the size of the nut.
+At all events she fails to establish that the interference with the rights of the respondents under article 8 is justified.
+By refusing to grant marriage visas to the respondents the Secretary of State infringed their rights under article 8.
+Her appeals must be dismissed.
+In line with the helpful analysis of the Upper Tribunal (Immigration and Asylum Chamber) conducted in somewhat similar circumstances in FH (Post flight spouses: Iran) v Entry Clearance Officer, Tehran [2010] UKUT 275 (IAC), I consider that, while decisions founded on human rights are essentially individual, it is hard to conceive that the Secretary of State could ever avoid infringement of article 8 when applying the amendment to an unforced marriage.
+So in relation to its future operation she faces an unenviable decision.
+LADY HALE
+I agree that the Secretary of State has infringed the article 8 rights of the parties to each of the marriages with which we are concerned and that these appeals should therefore be dismissed.
+Lord Wilson has dealt comprehensively with the relevant evidence, information and arguments and I add these few comments only because we are not all of the same mind.
+The issue, as Mr Drabble reminded us at the outset of his submissions, is whether the Secretary of State has acted incompatibly with the Convention rights of these particular young people.
+By reason of section 6(1) of the Human Rights Act 1998, it is unlawful for her to do so.
+This is subject to section 6(2), where a public authority is acting, to put it loosely, in compliance with primary legislation which cannot be read or given effect in any other way.
+That is not this case.
+The Secretary of State has acted in compliance with her own Immigration Rules, which do not even have the status of delegated legislation: see Odelola v Secretary of State for the Home Department [2009] UKHL 25, [2009] 1 WLR 1230.
+She does have a choice and it is her duty to act compatibly with the Convention rights of the people with whom she is concerned.
+Of course, where delicate and difficult judgments are involved in deciding whether or not she has done so, this Court will treat with appropriate respect the views taken by those whose primary responsibility it is to make the judgments in question.
+But those views cannot be decisive.
+Ultimately, it is for the court to decide whether or not the Convention rights have been breached: R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100; Belfast City Council v Miss Behavin Ltd [2007] UKHL 19, [2007] 1 WLR 1420.
+The immigration rules in question, paragraph 277 (which applies to spouses and civil partners) and its counterpart in paragraph 289AA (which applies to fianc(e)s and proposed civil partners), make an exception to the general rules governing the admission of spouses and fianc(e)s, civil partners and proposed civil partners, of people who are present and settled or being admitted for settlement here.
+Those rules (paragraphs 281 and 290) require principally that the parties have met and intend to live permanently with each other as spouses or civil partners; there are also requirements as to self sufficiency and knowledge of the English language.
+These requirements have a discernible connection with immigration control.
+The rules reflect a general policy that, subject to such conditions, spouses, partners and fianc(e)s should be able to join their spouses, partners and fianc(e)s who are settled here.
+The exception with which we are concerned prohibits the grant of a marriage visa (strictly, entry clearance, leave to enter, leave to remain or variation of leave on marriage grounds) unless both parties to the marriage or civil partnership will be aged 21 or over on the date of the applicants arrival in the United Kingdom or the grant of leave to enter, leave to remain or variation of leave, as the case may be.
+We happen to be concerned with the extension of that exception from those below 18 to those below 21.
+No one challenged its introduction for 16 and 17 year olds, so we cannot speculate about them.
+The crucial point is that, as the Secretary of State assures us, and the other parties accept, the purpose of this exception has nothing to do with immigration control.
+Its sole purpose is to deter or prevent forced marriages.
+Forced marriage can be defined in a number of different ways.
+There is a definition in section 63A(4) and (6) of the Family Law Act 1996 for the purpose of the power to grant civil protection orders, which was inserted into the 1996 Act by the Forced Marriage (Civil Protection) Act 2007: see para 68 earlier.
+In 2000 a Home Office Working Group, in A Choice by Right, defined forced marriage as a marriage conducted without the valid consent of both parties where duress is a factor (p 6).
+But the Group took a broad view of what constituted duress.
+They pointed out that, for the purpose of rendering a marriage voidable under section 12(c) of the Matrimonial Causes Act 1973, the Court of Appeal in Hirani v Hirani (1984) 4 FLR 232 had defined the test for duress as whether the mind of the applicant (the victim) has in fact been overborne, howsoever that was caused (p 7).
+They went on to explain that There is a spectrum of behaviours behind the term forced marriage, ranging from emotional pressure, exerted by close family members and the extended family, to the more extreme cases, which can involve threatening behaviour, abduction, imprisonment, physical violence, rape and in some cases murder (p 11).
+More recently, The Right to Choose: Multi agency statutory guidance for dealing with forced marriage (2008), takes a similar broad view, defining a forced marriage as one in which one or both spouses do not (or, in the case of some vulnerable adults, cannot) consent to the marriage and duress is involved.
+The duress in question is not limited to physical duress, but may involve emotional, psychological, financial or sexual duress.
+An example given of emotional duress is making the individual feel as though she is bringing shame upon her family by not entering into the marriage.
+Hence both the definitions of a forced marriage referred to above give a wider meaning to duress than its traditional definition in the criminal law, which is limited to threats of physical harm (Archbold, Criminal Pleading Evidence and Practice 2011, para 17.120).
+But most forced marriages will be legally valid unless or until they can be avoided or dissolved.
+Forced marriages, even in the wider sense set out in these definitions, are quite different from arranged marriages, in which the families of both spouses take a leading role in arranging the marriage, but the choice whether to solemnise the arrangement remains with the spouses and can be exercised at any time (A Choice by Right, p 10).
+In various forms this has been a common and perfectly acceptable practice in many, even most, societies throughout history.
+The idea that young (and not so young) people should find and choose their partners without either the help or approval of their families is a comparatively modern one.
+But clearly the dividing line between an arranged and a forced marriage may be difficult to draw, particularly in communities where there is a strong cultural tradition that it is for the parents to control their childrens marriages.
+But anyone who has read Jasvinder Sangheras powerful novel based on her own experiences, Shame (Hodder and Staughton, 2007), can be in no doubt that the difference is real and the consequences of forcing anyone into a marriage which she does not want are grave indeed, not only for the victims but often also for their families.
+As the Working Group pointed out, the perpetrators aim may be to strengthen the family and protect their culture, but it may have the reverse effect of turning their children against their background because of their experiences (A Choice by Right, p 20).
+In todays world, it is recognised that everyone has the right to decide whether or not to enter a particular marriage.
+Article 23(3) of the International Covenant on Civil and Political Rights (ICCPR), in an exact echo of article 16(2) of the Universal Declaration of Human Rights, requires that No marriage shall be entered into without the full and free consent of the intending spouses: see also article 1 of the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, article 10(1) of the International Covenant on Economic, Social and Cultural Rights (ICESC), article 16(1)(b) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
+Full and free means that the marriage should be entered into without improper pressure of any kind.
+Equally, it is recognised that anyone of marriageable age is free to marry whom they choose: see article 16(1) of the Universal Declaration, article 23(2) of the ICCPR, article 16(1)(a) of CEDAW, and of course article 12 of the ECHR.
+The right to marry is just as important as the right not to marry.
+Married couples also have the right to live together.
+This is inherent in the right to found a family, which is coupled with the right to marry in the Universal Declaration, the ICCPR and the ECHR.
+But the ECHR goes further, because article 8 protects the right to respect for family life.
+Family life arises virtually automatically upon a genuine marriage.
+In Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, at para 62, the European Court of Human Rights observed that Whatever else the word family may mean, it must at any rate include the relationship that arises from a lawful and genuine marriage, such as that contracted by Mr and Mrs Abdulaziz and Mr and Mrs Balkandali, even if a family life of the kind referred to by the Government has not yet been fully established.
+The Court also decided, at para 63, that family life had been established between Mr and Mrs Cabales, even though there was a question mark over the formal validity of their marriage, because they had gone through a ceremony of marriage, believed themselves to be married and genuinely wished to cohabit and lead a normal family life.
+Hence all three marriages were sufficient to attract such respect as may be due under article 8.
+Most significantly for our purposes, the Court held at para 62 that the expression family life in the case of a married couple, normally comprises cohabitation.
+The latter proposition is reinforced by the existence of article 12, for it is scarcely conceivable that the right to found a family should not encompass the right to live together.
+However, in the context of immigration control, the court went on to hold, at para 68, that The duty imposed by article 8 cannot be considered as extending to a general obligation on the part of a contracting state to respect the choice by married couples of the country of their matrimonial residence and to accept the non national spouses for settlement in that country.
+In all three cases, the marriage had been contracted after the UK spouse had become settled here as a single person, at a time when they must have known that there was no right for the non UK spouse to join them here, and it had not been shown that there were obstacles to establishing family life in their husbands countries or the countries from which they had originally come, or that there were special reasons why this should not be expected of them.
+The majority therefore held that there was no lack of respect for family life and thus no breach of article 8.
+A minority held that there was a lack of respect, but that it was justified under article 8(2) in the interests of the economic well being of the country.
+Although it has not wholly disappeared, subsequent developments have eroded the distinction between the negative obligation, not to interfere in family life by expelling one member of the family, and the positive obligation, to respect family life by allowing family reunion to take place.
+Many later cases have repeated the principle stated in Gl v Switzerland (1996) 22 EHRR 93, at para 38, that the boundaries between the states positive and negative obligations under this provision do not lend themselves to precise definition.
+The applicable principles are, none the less, similar.
+In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the state enjoys a certain margin of appreciation.
+The language of fair balance is much more compatible with a search for justification under article 8(2) than with identifying a lack of respect under article 8(1).
+Nevertheless, the Court continues to state that, in expulsion cases, the question is whether the interference with the family life established in the host country can be justified, whereas in reunion cases, the question is whether the host country should be obliged to allow the family to settle there: for a recent example, see Haghighi v Netherlands (2009) 49 EHRR SE8.
+The factors applicable in deciding whether an expulsion can be justified under article 8(2) have been laid down in the Chamber decision in Boultif v Switzerland (2001) 33 EHRR 1179, approved and augmented in the Grand Chamber in ner v Netherlands (2006) 45 EHRR 421.
+A similar but not identical set of factors has been referred to when deciding whether a failure to grant a permit for family reunion violates article 8, in cases such as Sen v Netherlands (2001) 36 EHRR 81, Tuquabo Tekle v Netherlands [2006] 1 FLR 798, Rodrigues da Silva v Netherlands (2006) 44 EHRR 729 and Y v Russia (2008) 51 EHRR 531.
+However, the reunion cases do draw upon the distinction, which they attribute to Abdulaziz, between cases where family life was established in another country, which the parents left to come to the host country, and now wish to bring a left behind child to the host country, and cases, like Abdulaziz itself, where a couple marry when one is settled in the host country and wish to establish a home there.
+In the former type of case, apart from Gl itself, the Court has often found a violation in failing to allow the left behind member to join the family in the host country.
+In Y v Russia, on the other hand, the Court found no violation in refusing to allow a failed asylum seeker from China to remain with his Russian wife in Russia.
+Significantly, however, he had made no attempt to obtain a residence permit as the husband of a Russian national (to which it appears that he would prima facie have been entitled under Russian law) so it was an open question whether he could have done so or whether his wife could join him in China.
+Even more significantly, perhaps, while drawing its statement of principle, in para 103, virtually word for word from para 39 of Rodrigues da Silva, the Court referred to Boultif in one of its footnotes.
+It would appear, therefore, that although all these cases depend upon their particular facts and circumstances, the approach is now similar in all types of case.
+The Courts approach is much more compatible with an analysis in terms of justification under article 8(2) than with an analysis of the extent to which respect is due under article 8(1): and in Omoregie v Norway [2009] Imm AR 170, the Court expressly analysed a reunion case in article 8(2) terms.
+It would seem, therefore, that we can safely consign the no lack of respect aspect of Abdulaziz to history.
+But in this case that debate seems to me to be something of a red herring.
+In Abdulaziz itself it was clearly established that family life exists between husband and wife by virtue of their marriage and that family life normally comprises cohabitation.
+Absent the immigration dimension, there can be no doubt that forcing a married couple to choose either to live separately for some years or to suspend their plans to live in one place and go to live where neither of them wishes to live, is, as Lord Wilson puts it at para 32, a colossal interference with their right to respect for family life.
+And in this case, the immigration dimension can be ignored.
+This measure has not been adopted as a measure of immigration control.
+The United Kingdom has no objection to admitting genuine spouses who fulfil certain self sufficiency and language requirements to this country.
+The Secretary of State cannot at one and the same time say that she is not doing this for the purpose of controlling immigration and rely upon jurisprudence which is wholly premised on the states right to control immigration.
+So the only question is whether this colossal interference can be justified under article 8(2).
+The justification claimed is that this measure will prevent, deter or delay forced marriages.
+This is undoubtedly a legitimate aim, in article 8(2) terms, for the protection of the rights and freedoms of others.
+The action taken was undoubtedly in accordance with the law.
+The sole question is whether it was necessary in a democratic society, in other words, whether it was a proportionate response to a pressing social need.
+As Lord Wilson has shown, there are many reasons to conclude that it was not.
+First and foremost, although nobody knows the figures, it is clear that the rule will interfere with many more entirely voluntary marriages than it will prevent, deter or delay forced marriages.
+The scale and severity of the impact upon these unforced marriages has scarcely been considered.
+Nicola Smith, in her first witness statement on behalf of the Secretary of State, says that it was considered carefully, but the reasoning was that, as only a small proportion of foreign spouses are from this age group, the impact was proportionate.
+No one has said: We know that many innocent young people will be caught by this rule but we think that the impact upon them will not be so great while the protection given to victims of forced marriage will be so much greater.
+There are, of course, circumstances in which the imposition of a blanket rule can be justified.
+The best known example is the ban on assisting suicide, upheld by the Strasbourg Court even though not every would be suicide was vulnerable and in need of its protection: see Pretty v United Kingdom (2002) 35 EHRR 1.
+But even then, an important factor in the Courts decision was the prosecutors discretion: It does not appear to be arbitrary to reflect the importance of the right to life, by prohibiting assisted suicide while providing for a system of enforcement and adjudication which allows due regard to be given in each particular case to the public interest in bringing a prosecution . (para 76).
+We know from cases such as Hirst v United Kingdom (No 2) (2005) 42 EHRR 849, para 82, that a general, automatic, indiscriminate restriction (their word) on a vitally important Convention right falls outside any acceptable margin of appreciation.
+We are, of course, concerned with a restriction rather than a perpetual ban, but it is none the less general, automatic and indiscriminate.
+In this case, it is understood that individualised decisions may create their own problems, because taking steps to determine whether or not the marriage is forced may exacerbate the risks to the reluctant spouse.
+But, as the House of Commons Home Affairs Committee has pointed out, the Government has a mechanism to help reluctant sponsors: Domestic Violence, Forced Marriages and Honour based Violence, 6th Report of Session 2007 08, HC 263 I, paras 112114.
+Secondly, it is entirely unclear whether the rule does have the desired effect upon the marriages which it is designed to prevent or deter.
+Karma Nirvana gave evidence that some girls ringing their helpline have found it helpful to be able to say to their families that they will not be able to sponsor an immigrant spouse until they are both 21: House of Commons Home Affairs Committee, Forced Marriage, 8th Report of Session 2010 12, HC 880, para 16.
+But there is also evidence that the desire to obtain a visa is not the predominant motive for forcing a child into marriage.
+It is only the 12th of the list of 13 motives given in the statutory guidance: see para 10 earlier.
+We have no idea how many forced marriages with non resident spouses have been deterred.
+We have no idea how many forced marriages with resident spouses have been substituted for those which have been deterred.
+We do know that the rule can have no effect at all upon the forced marriages which take place within this country or within the European Union.
+Thirdly, we also know that if the rule is not effective in preventing a forced marriage it may do a great deal more harm than good.
+A young woman may be sent abroad and forced to marry against her will and kept there until she can sponsor her husband to come here.
+During this time she may be raped many times, bear children she does not want to have and be deprived of the education and life which she would otherwise have had here.
+Even if she is allowed to come home, she will not be able to escape from the marriage.
+She will be obliged to stay married so that she can sponsor her husband to come here.
+The rule will have made her life more difficult.
+The cases coming before the Family Division of the High Court, although only the tip of the iceberg, provide ample illustration of the difficulties of rescuing a young person who has been trapped into marriage abroad: see, for example, In re KR (Abduction: Forcible Removal by Parents) [1999] 2 FLR 542.
+Hence it is scarcely surprising that the views of knowledgeable people and organisations are so divided.
+While Karma Nirvana support the change, Southall Black Sisters and the Henna Foundation do not.
+In 2008, the Home Affairs Committee concluded, at para 111, that there was not sufficient evidence to determine whether it would have the desired deterrent effect.
+Given the potential risks involved, it urged that the age should not be raised without further research and conclusive evidence.
+There certainly was no conclusive evidence when the change was made.
+The Department had previously commissioned research from Bristol and Manchester Universities, which found that the change would be unlikely to prevent forced marriages, and indeed might increase the risk of negative actions associated with the increased age (Hester and others, Forced Marriage: the risk factors and the effect of raising the minimum age for a sponsor, and of leave to enter the United Kingdom as a spouse or fianc(e), 2007, chapter 3).
+The Department concluded that, because of methodological difficulties, these findings should be treated with caution and not regarded as representative.
+They went on to publish their own consultation paper, Marriage to Partners from Overseas (December, 2007).
+Six months later, they published their conclusions, in Marriage Visas: The Way Forward (July, 2008).
+Clearly, those who choose to respond to consultation papers are even less representative than the organisations, individuals and focus groups who were chosen for the purpose of the academic research.
+Even so, the response was hardly a ringing endorsement: 15 of the 29 individual respondents supported the change, the organisations were evenly divided between supporters and opponents and three organisations had mixed views.
+None of this amounts to the conclusive evidence for which the Home Affairs Committee called in 2008.
+None of it amounts to a sufficient case to conclude that the good done to the few can justify the harm done to the many, especially when there are so many other means available to achieve the desired result.
+There is a further reason for holding the interference disproportionate.
+Although the means used is an interference with article 8 rights, the object is to interfere with article 12 rights.
+The aim is to prevent, deter or delay marriage to a person from abroad.
+The right to marry is a fundamental right.
+It does not include the right to marry in any particular place, at least if it is possible to marry elsewhere: see Savoia and Bounegru v Italy (Application No 8407/05) (unreported), Admissibility Decision of 11 July 2006.
+But it is not a qualified right: the state can only restrict it to a limited extent, and not in such a way or to such an extent as to impair its very essence.
+In ODonoghue v United Kingdom (Application No 34848/07) (unreported) given 14 December 2010, the Court was concerned with the Home Office scheme for approving marriages with people from abroad, the first version of which was struck down by the House of Lords in R (Baiai) v Secretary of State for the Home Department [2008] UKHL 53, [2009] 1 AC 287.
+The Court agreed that a system of approval designed to establish the capacity of the parties to marry and whether or not it is a marriage of convenience is not objectionable.
+But this scheme was objectionable for a number of reasons: first, the decision to grant a certificate was not based on the genuineness of the marriage; second, it imposed a blanket prohibition on certain categories of people; and third, the fee was set at a level which the needy could not pay.
+A fee fixed at such a level could impair the essence of the right to marry.
+This scheme shares all three characteristics.
+The delay on entry is not designed to detect and deter those marriages which are or may be forced.
+It is a blanket rule which applies to all marriages, whether forced or free.
+And it imposes a delay on cohabitation in the place of their choice which may act as at least as severe a deterrent as a large fee.
+I say this, not to conclude that there has been a violation of these couples right to marry.
+They have in fact both been able to get married, one in England and one in Pakistan.
+But these factors lend weight to the conclusion that it is a disproportionate and unjustified interference with the right to respect for family life to use that interference for the purpose of impeding the exercise of another and even more fundamental Convention right in an unacceptable way.
+Like Lord Wilson, therefore, I would hold that the Secretary of State has acted incompatibly with the Convention rights of these two couples.
+I also agree with him that, although we are only concerned with these young people, it is difficult to see how she could avoid infringing article 8 whenever she applied the rule to an unforced marriage.
+LORD BROWN
+Forced marriages are an appalling evil.
+Most commonly the victims are young women and all too often such marriages occur within the immigrant community.
+One reason for this, amongst several identified by the National Centre for Social Research (NCSR) in their July 2009 report, is that: FM can be a way of ensuring land, property and wealth remain within a family.
+It may take place because of a long standing family commitment or to appease an aggrieved family member.
+This is often associated with assisting a claim for UK residency and citizenship. (para 2.1)
+One way of seeking to combat this aspect at least of the problem of forced marriages has been by raising the age at which a UK national or settled resident can sponsor a fiance or spouse seeking admission to this country (and also the age at which a fiance or spouse may gain entry).
+In April 2003 the age for sponsorship was raised from 16 to 18 and in December 2004 the age for those seeking entry was similarly raised.
+As stated in the July 2008 Home Office UK Border Agency Report (proposing a further such increase from 18 to 21) Marriage Visas: The Way Forward: These measures were introduced to help tackle the problem of forced marriage with the aim of giving young people extra time to mature which would help them to resist inappropriate family pressure to marry. (para 3.1)
+The proposed further increase from 18 to 21 was implemented by the amendment of paragraph 277 of the Immigration Rules (HC 395) with effect from 27 November 2008.
+It is this increase which by order made on 21 December 2010 the Court of Appeal declared to be unlawful, at least where, as in the present cases, one party to the (actual or proposed) marriage is a UK national.
+The essential ground on which the Court of Appeal held the increase to be unlawful was that its interference with the respondents article 8(1) rights was unjustified and disproportionate (indeed, in Gross LJs view, irrational or unreasonable in the traditional, common law, Wednesbury sense).
+It is my misfortune to disagree with what I understand will be the decision of the majority of the court on this further appeal to uphold the Court of Appeals conclusion.
+The Court of Appeal did not have, as this Court has had, the advantage of the May 2011 report (with evidence annexed) of the House of Commons Home Affairs Committee on Forced Marriage.
+This report, having noted the Court of Appeals ruling in the present case and that this matter is still currently before the courts continues: 16.
+Karma Nirvana [the largest NGO concerned with the victims of forced marriage and an organisation of unchallenged repute] supported the change in the Immigration Rules on the grounds that: We at Karma Nirvana have received feedback from victims that they have been helped by the rule.
+On the helpline we receive a number of calls from potential victims (and professionals on their behalf) under the age of 21 years asking about their legal position.
+Most, if not all, seem quite relieved to find that they have extra breathing space in which to make up their minds. 17.
+However, Southall Black Sisters disagreed that the change has had a positive effect, stating that it does not in reality protect victims from forced marriage, but simply increases pressures on them to remain within an abusive situation and discriminates against migrant communities.
+In evidence to our predecessor Committee in March 2010, Nazir Afzal of the Crime Prosecution Service, had mixed views: I have spoken to several members of the third sector and police officers . and they tell me that it has had a very positive effect in terms of the people who would ordinarily have been forced into marriage at an earlier age . several hundred women have not been forced into marriage because they have been given the opportunity to wait until beyond 21 .
+It has sent out a message to some families and to some communities that they need to be taking this a little bit more seriously than they have done.
+However, there has been an increase in relation to fraud involving birth certificates obtained abroad for individuals who are trying to pretend that they are 21 when they are not. 18.
+We have received mixed evidence about the impact of the change in the Immigration Rules in 2008 to require sponsors of marriage visas and their incoming spouses to be over the age of 21.
+We recognise that the change may be seen as discriminatory and has the potential for young people to be held in abusive situations for longer; however, it has undoubtedly helped a number of young people to resist forced marriage.
+The overall balance of this latest report, as it seems to me, is in favour of the rule change.
+True, Southall Black Sisters (one of the interveners before this court) are against it.
+But their view is more than offset by that of Karma Nirvana and Mr Afzals only concern appears to be in respect of forged birth certificates.
+There is furthermore before this court information about the practice of other EU countries which impose minimum ages for marriage visas.
+Germany, Austria and the Netherlands impose an age requirement of 21 for both parties (including their own citizens) precisely as the UK does.
+Belgium is planning to have the identical rule (although at present it does not apply to Belgian citizens or EU nationals).
+Denmark has the same rule except that it imposes a minimum age requirement of 24 rather than 21.
+In addition our attention is drawn to Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification which, with regard to third country national sponsors, provides (by article 4(5)): In order to ensure better integration and to prevent forced marriages Member States may require the sponsor and his/her spouse to be of a minimum age, and at maximum 21 years, before the spouse is able to join him/her. (emphasis added) The October 2008 Report from the Commission to the European Parliament and the Council on the application of that Directive stated in respect of article 4(5): Most Member States made use of this optional clause, arguing that it can help prevent forced marriages.
+Now it is of course obvious that this rule has significant disruptive effects on many young couples whose actual or proposed marriages are entirely voluntary indeed, the very substantial majority of those affected.
+Predictably these couples, whether or not they marry, will be kept apart or have to live abroad.
+As, moreover, is recognised in a recent statement (dated 9 June 2011) from Suzelle Dickson, the Joint Head of the Forced Marriage Unit (FMU): The FMU is aware of a concern that the increase in the minimum age for obtaining a marriage visa would lead to young people being kept abroad against their will for an extended period following the marriage until reaching the age for sponsorship.
+She adds, however: From the FMUs experience the majority of reluctant sponsors return to the UK soon after the marriage although there are no statistics or data held in relation to this.
+This is generally so that the sponsor can establish themselves financially, gaining employment so that they can support the visa application.
+It is also perfectly true that, certainly at the time this measure was introduced in November 2008, there had been little in the way of research to indicate just how far the rule would help in combating forced marriages.
+As, indeed, the 2011 Home Affairs Committee Report noted (at para 14), their predecessor committee in May 2008 had concluded: We have not seen sufficient evidence to determine whether or not raising the age of sponsorship would have a deterrent effect on forced marriage.
+Given the potential risks involved, we urge the government to ensure that any changes it proposes to its policy on visa application procedures in respect of sponsorship are based on further research and conclusive evidence as to the effect of those changes.
+The unfortunate fact is, however, that, by the same token that the full extent of the problem of forced marriage is impossible to gauge as stated in the NCSR July 2009 report (para 3), it is likely that there are a large number of victims who have not come to the attention of any agencies or professionals, described as hidden cases so too research is problematic and conclusive evidence impossible to come by.
+The reason forced marriages are hard to detect is, of course, that victims inevitably risk yet further serious harm and suffering if they reveal the true facts.
+Lord Wilson (at para 49 of his judgment) poses ten questions all, I readily accept, perfectly good questions which (at para 50) he recognises are not easily answered and remain unanswered.
+The unfortunate fact is, however, that these questions can never be satisfactorily answered and that a judgment call is therefore required.
+This is a matter to which I return at para 91 below.
+Or is it to be said that the whole matter is all just too difficult and uncertain and that the Secretary of State is therefore disabled from taking the course adopted by those other EU countries which share her view on the best way forward (although not apparently from increasing the sponsoring age from 16 to 18 as was earlier done)?
+For my part, therefore, I would be less critical than the majority of the Secretary of States view the Hester Research Report having been analysed by Immigration Research and Statistics and two external peer reviewers as not of sufficient quality to be published by the Home Office that, public consultation [having] found that a small majority of respondents were in favour . , raising the marriage visa age would represent a robust and publicly endorsed approach to the problem of forced marriage. (para 33 of Nicola Smiths witness statement for the appellant dated 30 October 2009).
+Altogether more important than this, however, as it seems to me, is that this courts duty is to decide the appeal, not by a reference to the sufficiency or otherwise of the research carried out by the Home Office before the new rule was introduced, but rather by reference to the proportionality as perceived today between the impact of the rule change on such innocent young couples as are adversely affected by it and the overall benefit of the rule in terms of combating forced marriage.
+As Lord Bingham of Cornhill said in R (SB) v Governors of Denbigh High School [2007] 1 AC 100, 116, para 31: what matters in any case is the practical outcome, not the quality of the decision making process that led to it.
+In the light of all the material now before this court, most notably the May 2011 Home Affairs Committee Report and Karma Nirvanas evidence before it, the evidence of other EU countries imposing similar minimum age requirements for sponsoring marriages, the 2003 EC Directive (and the 2008 Council Report on its application) recognising that such requirements are widely regarded as helping to prevent forced marriages, the original, never disputed, increase in the age requirement for sponsorship from 16 to 18 with that aim in mind, together with such (admittedly, albeit to my mind inevitably, limited) Home Office statistical evidence as suggests the benefit of a further such increase from 18 to 21, I find it hard to see how this court can properly strike down the rule as incompatible with article 8.
+The extent to which the rule will help combat forced marriage and the countervailing extent to which it will disrupt the lives of innocent couples adversely affected by it is largely a matter of judgment.
+Unless demonstrably wrong, this judgment should be rather for government than for the courts.
+Still more obviously, the comparison between the enormity of suffering within forced marriages on the one hand and the disruption to innocent couples within the 18 21 age group whose desire to live together in this country is temporarily thwarted by the rule change, is essentially one for elected politicians, not for judges.
+Lady Hale suggests (at para 66 of her judgment) that: The right to marry is just as important as the right not to marry.
+But she cannot possibly mean by this that the postponement by up to three years of a couples wish to live together as man and wife in this country involves just as great a violation of human rights as a forced marriage.
+What value, then, is to be attached to preventing a single forced marriage? What cost should each disappointed couple be regarded as paying? Really these questions are questions of policy and should be for government rather than us.
+Of course, the ultimate decision on article 8(2) proportionality must be for the courts but in this particular context the courts should to my mind accord government a very substantial area of discretionary judgment.
+Huang v Secretary of State for the Home Department [2007] 2 AC 167 (to which Lord Wilson refers at para 46 of his judgment) was a very different sort of case from the present, concerning as it did the article 8 claims of two particular individuals on their own special facts.
+No one was seeking there, as here, actually to strike down an immigration rule.
+Certainly, at paragraph 16 of the committees opinion (given by Lord Bingham) in Huang, we deprecated the use of the term deference to describe the weight to be given to certain factors considered important by the Secretary of State.
+But we expressly recognised the need to accord appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice.
+That is precisely what I am suggesting should be done here: it is the Secretary of State who has the responsibility for combating forced marriages in the context of immigration and who should be recognised as having access to special sources of knowledge and advice in that regard.
+Lady Hale (at para 74 of her judgment) says that: We know from cases such as Hirst v United Kingdom (No 2) (2005) 42 EHRR 849, para 82, that a general, automatic, indiscriminate restriction on a vitally important Convention right falls outside any acceptable margin of appreciation.
+I confess to the greatest difficulty in understanding the suggested relevance of Hirst in the present context.
+Were the UK government now to legislate to accord the vote, say, to all prisoners serving less than four year terms of imprisonment, could it then seriously be argued that the rule (denying the vote to those serving four years or more) would still fall foul of some principle against a general, automatic, indiscriminate restriction? I suggest not and that that would be the real parallel with the rule in the present case (just as with the previous rule postponing sponsorship from 16 to 18 as to which Lady Hale says nothing as, indeed, she says nothing about the similar rules adopted in other Council of Europe states).
+In any event, it is not as if the Secretary of State makes no exception whatever to the operation of the rule.
+Obviously, given the difficulty of discovering which marriages (or proposed marriages) are forced, exceptions cannot be too readily made if the rule is to have its intended effect.
+But, in exceptional compassionate circumstances (perhaps, for example, where children are involved or the woman is pregnant) or where, indeed, on the particular facts of an individual case article 8 would otherwise be breached (the demonstrable disadvantage to a particular couple plainly outweighing the public interest in maintaining a general rule for the benefit of the wider community, a category of exception likely to overlap with the first), the rule will be disapplied.
+Such exceptions, one may note, are broadly mirrored in the Danish legislation (helpfully supplied to us following the hearing by Mr Setright QC acting on behalf of the second interveners) which, by section 9c(i) of the Aliens (Consolidation) Act 2009, provides for a resident permit to be issued to an alien under 24 upon the fulfilment of certain specified conditions if exceptional reasons make it appropriate, including regard for family unity.
+Similarly the exception to rule 277 constituted by its further amendment with effect from 6 April 2010 to reduce the minimum age to 18 if either party is a serving member of HM Forces, so far from mak[ing] all but untenable the Home Secretarys contention that an all embracing rule, making no distinction of persons, is necessary if the objective is to be met (Sedley LJs judgment at para 57), is to my mind convincingly explained in Nicola Smiths third witness statement (before the Court of Appeal) dated 14 October 2010: The change reflects the unique circumstances in which military personnel operate.
+Additional support provided by the Armed Forces to families during deployments is more efficiently delivered if they live close to the Service persons duty station.
+This support gives a Service person a degree of reassurance when they are deployed on operations and is considered to have a positive effect on families at home.
+It is the Ministry of Defences view that military personnel will be more operationally effective when deploying to difficult environments if they have increased certainty that their spouse or partner will not be excluded from the UK.
+Mr Al Mustakim on behalf of the respondents in the second appeal and all the interveners (although conspicuously not Mr Drabble QC for the respondents in the first appeal) seek to rely on the decision of the House of Lords in R (Baiai) v Secretary of State for the Home Department [2009] AC 287 in support of an argument under article 12 of the Convention.
+As Sedley LJ records (para 47 of his judgment), Mr Al Mustakim and the AIRE Centre placed the right to marry at the centre of their arguments and, indeed, Mr Satvinder Juss for the third intervener contends before us (para 1 of his written case) that Baiai is dispositive of this appeal.
+In my judgment, however, the differences between the two cases are altogether more striking than their similarities and reliance here on the decision in Baiai is entirely misplaced.
+Baiai involved a direct contravention of the first limb of article 12, the right to marry.
+Here by contrast the case cannot be put higher than an interference with the right to found a family.
+As stated in Clayton and Tomlinsons The Law of Human Rights, 2nd ed, (2009) para 13.114: a claim that legal restrictions preclude a couple from marrying will come under article 12 whereas complaints concerning the states failure to provide the material circumstances which make marriage effective will engage article 8.
+Secondly, the legitimate aim advanced for the blanket prohibition in Baiai was the combating of marriages of convenience, ie marriages designed to defeat immigration control.
+Here by contrast the aim is to combat forced marriages, obviously a more compelling objective.
+Thirdly, the justification advanced for adopting a blanket prohibition rather than investigating each application individually has been very different in the two cases.
+It is one thing to stigmatize a rule as insufficiently precisely targeted (Ms Monaghan QCs characterisation of the respective policies at para 20 of her written argument for the AIRE Centre) if the only reason put forward for not considering cases individually is that such investigation is too expensive and administratively burdensome (para 31 of Lord Bingham of Cornhills judgment in Baiai); quite another to do so given, as here, the impossibility (explicitly recognised by Mr Setright in argument) of satisfactorily investigating individual applications in the context of forced marriages.
+It is now an established principle of our law that the Convention should not be interpreted and applied more generously in favour of an applicant than the Strasbourg jurisprudence clearly warrants.
+If this court now concurs in striking down rule 277 on article 8 grounds, there is nothing the Secretary of State can do by way of an appeal to Strasbourg to reinstate it.
+Are we really to say that the position is plain and that Germany, Austria, the Netherlands, Belgium, Denmark and other such Council of Europe states with similar rules must also necessarily be in breach of article 8? What if the equivalent rule is later challenged elsewhere in Europe and eventually upheld in Strasbourg? Article 8 is a difficult provision which has already led to some highly contentious, not to say debateable, decisions.
+Upon that I am sure we would all agree.
+In a sensitive context such as that of forced marriages it would seem to me not merely impermissible but positively unwise for the courts yet again to frustrate government policy except in the clearest of cases.
+To my mind this cannot possibly be regarded as such a case.
+I would allow these appeals.
+LORD PHILLIPS AND LORD CLARKE
+We agree that these appeals should be dismissed for the reasons given by Lord Wilson and Lady Hale.
diff --git a/UK-Abs/test-data/judgement/uksc-2011-0046.txt b/UK-Abs/test-data/judgement/uksc-2011-0046.txt
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+Under the Equal Pay Act 1970, women (or men) whose work is of equal value to that of men (or women) in the same employment are entitled to the benefit of a deemed equality clause in their contracts of employment.
+This means that if any of their terms and conditions is less favourable than the equivalent term or condition of the men with whom they are compared, they are entitled to have the benefit of that more favourable term, as if it had been included in their original contract of employment.
+It is therefore necessary to identify the precise terms and conditions with which comparison is to be made.
+This entails finding an individual or group of the opposite sex who constitute a valid comparator.
+There are several elements in that task.
+One involves looking at the kind of work the men and the women do: is it like, or has it been rated as equivalent, or is it of equal value? Another involves looking to see whether there are material factors other than the difference in sex which explain the difference in treatment.
+But a threshold question is whether the men and women are in the same employment.
+The issue in this case is what that means.
+The answer would be easy if all it meant was that they were employed by the same employer, the person with whom they all have contracts of employment and who therefore has it within his power to correct the inequality.
+Unfortunately, it is not that simple.
+There are occasions when women may be able to compare themselves with men who are not employed by the same employer.
+However, in United Kingdom law, there are also occasions when women may not be able to compare themselves with men, even though they are employed by the same employer, because they are not employed at the same establishment.
+But if that provision erects a barrier to a claim which would otherwise be available under European Union law, it would be our duty to disapply it.
+Section 1(6) of the Equal Pay Act 1970 provides:
+. men shall be treated as in the same employment with a woman if they are men employed by her employer or any associated employer at the same establishment or at establishments in Great Britain which include that one and at which common terms and conditions of employment are observed either generally or for employees of the relevant classes. (emphasis supplied) The Equal Pay Act 1970 has now been repealed and replaced by provisions in the Equality Act 2010 which are intended to be of equivalent effect, but the 1970 Act continues to govern claims, such as those in the present case, which were brought before the 2010 Act came into force.
+The case law so far
+Section 1(6) falls into two separate propositions, one contained in the words before and the other contained in the words after or where it appears for the second time in the subsection.
+The first proposition is straightforward: if the woman and her comparator are employed by the same or an associated employer in the same establishment, then they are in the same employment and there is no need to consider the question of common terms of employment: see Lawson v Britfish Ltd [1987] ICR 726; North Cumbria Acute Hospitals NHS Trust v Potter [2009] IRLR 176.
+The difficulty comes with the second proposition, where they are employed at establishments in Great Britain which include that one and at which common terms and conditions of employment are observed either generally or for employees of the relevant classes.
+The interpretation of this proposition has come before the House of Lords on two previous occasions and we have not been invited to depart from the conclusions they reached.
+In Leverton v Clwyd County Council [1989] AC 709, the applicant was a nursery nurse who wished to compare herself with male clerical workers employed by the same local authority under terms and conditions derived from the same collective agreement, known as the Purple Book.
+None of the male workers worked at the same establishment as she did and their hours of work were longer and their holidays shorter than those of the applicant.
+The employment tribunal, the Employment Appeal Tribunal, and the Court of Appeal (by a majority) held that they were not in the same employment for the purpose of section 1(6).
+They took the view that the subsection called for a comparison between the terms and conditions of the applicant and of her comparators and that only if those were broadly similar to one another was the test satisfied.
+The House of Lords disagreed.
+Lord Bridge of Harwich gave the leading opinion, with which the other members of the appellate committee agreed.
+He thought that the language of the subsection was clear and unambiguous: The concept of common terms and conditions of employment observed generally at different establishments necessarily contemplates terms and conditions applicable to a wide range of employees whose individual terms will vary greatly inter se (p 745F).
+Terms and conditions governed by the same collective agreement seemed to him the paradigm, though not necessarily the only example, of common terms and conditions contemplated by the subsection.
+But if there was any ambiguity, he would reject a construction which required a broad similarity between the terms and conditions of the woman and of her claimed comparators.
+Such a construction: frustrates rather than serves the manifest purpose of the legislation.
+That purpose is to enable a woman to eliminate discriminatory differences between the terms of her contract and those of any male fellow employee doing like work, work rated as equivalent or work of equal value, whether he works in the same establishment as her or in another establishment where terms and conditions of employment common to both establishments are observed (pp 745H 746A).
+It could not have been the intention of Parliament to require a woman to prove an undefined substratum of similarity between her terms of employment and his as the basis of a claim to eliminate any discriminatory difference between them.
+In his view, the reason why Parliament had not simply required that the
+woman and her comparators be employed by the same employer but had also required that common terms and conditions of employment be observed between two different establishments was that a single employer might operate essentially different employment regimes at different establishments (p 746C).
+He gave the examples of one employer having establishments in London and in Newcastle, where the regimes were quite different, or of a company operating one factory taking over a company operating another factory, where there were quite different collective agreements resulting in quite different structures.
+Leverton was an easy case, because everyone was employed under the same Purple Book agreement.
+But once it is clear that Parliament cannot have been referring to common, or even broadly similar, terms and conditions between the woman and her comparators, it is equally clear that it cannot be a requirement that they are covered by the same collective agreement.
+In British Coal Corporation v Smith [1996] ICR 515, the applicants were canteen workers, canteen manageresses and cleaners, employed at 47 different British Coal Corporation establishments.
+Their named comparators were mainly surface mineworkers working at 14 different establishments, some of them the same as the places where the women worked and some of them not.
+Their terms and conditions were governed by a variety of agreements.
+It was not disputed that the women could take a comparator from their own colliery or other workplace.
+The question was whether they could take comparators from other collieries or workplaces.
+Lord Slynn of Hadley, with whose opinion all the other members of the appellate committee agreed, pointed out that it was obvious why a woman was not limited to comparing herself with men employed in the same workplace as she was: . otherwise an employer could so arrange things as to ensure that only women worked at a particular establishment or that no man who could reasonably be considered as a possible comparator should work there (p 525H).
+The inclusion in section 1(6) of the words which include that one (that is, the establishment at which the woman works) was at first sight puzzling, but read with the words and at which common terms . are observed which follow it simply meant that common terms must be observed, not only at the other place but also at the womans place of work if employees of the relevant class were employed there.
+It was agreed that the woman did not have to show that she shared common terms and conditions with her comparator, either in relation to those terms which were alleged to constitute the discrimination or in relation to the other terms.
+What had to be shown was that the different classes of employee shared common terms.
+It was agreed that the women did so.
+Hence: What therefore has to be shown is that the male comparators at other establishments and at her establishment share common terms and conditions.
+If there are no such men at the claimants place of work then it has to be shown that like terms and conditions would apply if men were employed there in the particular jobs concerned (p 526F).
+The Corporation claimed that this meant that the terms and conditions of the comparators had to be the same in substantially all respects.
+Lord Slynn rejected this and adopted a test of broad similarity: The purpose of requiring common terms and conditions was to avoid it being said simply a gardener does work of equal value to mine and my comparator at another establishment is a gardener.
+It was necessary for the applicant to go further and to show that gardeners at other establishments and at her establishment were or would be employed on broadly similar terms.
+It was necessary but it was also sufficient (p 527D).
+The principles to be derived from these two cases are therefore plain.
+First, the common terms and conditions referred to in section 1(6) are not those of, on the one hand, the women applicants and, on the other hand, their claimed comparators.
+They are, on the one hand, the terms and conditions under which the male comparators are employed at different establishments from the women and, on the other hand, the terms and conditions under which those male comparators are or would be employed if they were employed at the same establishment as the women.
+Second, by common terms and conditions the subsection is not looking for complete correspondence between what those terms are, or would be, in the womans place of work.
+It is enough that they are, or would be, broadly similar.
+It is also plain from the reasoning of both Lord Bridge in Leverton and Lord Slynn in British Coal Corporation that it is no answer to say that no such male comparators ever would be employed, on those or any other terms, at the same establishment as the women.
+Otherwise, it would be far too easy for an employer so to arrange things that only men worked in one place and only women in another.
+This point is of particular importance, now that women are entitled to claim equality with men who are doing completely different jobs, provided that the women are doing jobs of equal value.
+Those completely different jobs may well be done in completely different places from the jobs which the women are doing.
+However, it is fair to say that it is not clear from the facts as we have them that this was the actual situation in the British Coal Corporation case.
+Some of the male surface mine workers were working in the same colliery as some of the claimants.
+It could just be, as suggested by Mr Truscott QC on behalf of the employers in this case, that all the 47 places where the women worked were collieries at which it was possible that surface mineworkers might also work, even though those chosen do not in fact do so.
+The issue, therefore, is whether the women can compare themselves with men employed by the same employer in other places of work when in practice those men would never be employed to do their current jobs in the same place as the women.
+The facts
+These claims are brought by 251 classroom assistants, support for learning assistants and nursery nurses employed in a local authoritys schools.
+The classroom and support for learning assistants are employed in the local authoritys education service under the terms contained in a national collective agreement, the Administrative, Professional, Technical and Clerical agreement, known as the Blue Book.
+The nursery nurses are employed under a supplement to the Blue Book.
+They are based at a variety of schools in the local authoritys area.
+Their individual contracts specify the particular school at which they are based and also state that they may be required to work at other locations.
+They are employed during the school terms only and work less than 35 hours per week.
+The convenience of these hours for people with child care or other domestic responsibilities is no doubt one of the reasons why these posts are predominantly held by women.
+The claimants wish to compare themselves with a variety of manual workers employed by the same local authority, as groundsmen, refuse collectors, refuse drivers and a leisure attendant.
+They are employed in the authoritys combined services, under a different collective agreement, the Scottish Council for Local Authorities Services (Manual Workers) Scheme of Pay and Conditions of Service, known as the Green Book.
+The leisure attendant is based at a swimming pool, but the others are based at various depots in the local authoritys area, from which they go out to do their work in a variety of locations.
+Although some of their work is done at schools, they are not based there.
+Their individual contracts of employment specify the depot at which they are based and that they may be required to work at other locations.
+They work full time with a fixed annual leave entitlement.
+They are entitled to substantial bonus payments or supplements on top of their basic pay, whereas the claimants are not.
+The authority does employ a small number of manual workers as school janitors.
+They are based in schools and, like the claimants, work only during the school terms.
+But the claimants do not wish to compare themselves with the janitors, who are not entitled to the bonuses or supplements which the other manual workers enjoy.
+It may be worth noting that the employers and trade unions have negotiated a single status collective agreement, known as the Red Book, which would cover both the claimants and the comparators.
+But the existing pay and grading arrangements were to remain in force until the employers had completed a job evaluation exercise.
+This had not been done at the time of the employment tribunals decision in this case, so the essential terms remained governed by the original Blue and Green Books.
+The proceedings
+Most of the claims were lodged between February and December 2006, with the last claim lodged in February 2007.
+As none of the claimants was employed at the same establishment as their chosen comparators, the local authority applied for a pre hearing review to have the employment tribunal determine whether or not they were in the same employment as defined in section 1(6) of the 1970 Act.
+The claims were conjoined by order at the outset of the pre hearing review in December 2007.
+This is but the first hurdle which the claimants face.
+If they succeed in jumping it, they will still have to prove that their work is comparable to that of the men.
+In its original form, the 1970 Act only imposed an equality clause where they were employed in like work (now covered by section 1(2)(a)) or work rated as equivalent in a formal job evaluation exercise (now covered by section 1(2)(b)).
+Although both are mentioned in the sample claim form which we have seen, these claims are primarily based on the allegation that the work done by the claimants is of equal value to that done by the comparators.
+Section 1(2)(c) of the 1970 Act (added by SI 1983/1794) applies where a woman is employed on work which, not being work in relation to which paragraph (a) or (b) above applies, is, in terms of the demands made on her (for instance under such headings as effort, skill and decision), of equal value to that of a man in the same employment.
+That issue has yet to be addressed.
+Furthermore, if the claimants succeed in establishing that their work is of equal value, the employer could still seek to establish that there was a good reason for the difference between their terms and conditions.
+Section 1(3) of the 1970 Act (as substituted by SI 1983/1794) provides: An equality clause . shall not operate in relation to a variation between the womans contract and the mans contract if the employer proves that the variation is genuinely due to a material factor which is not the difference of sex and that factor (a) in the case of an equality clause falling within subsection (2)(a) or (b) above, must be a material difference between the womans case and the mans; and (b) in the case of an equality clause falling within subsection (2)(c) above, may be such a material difference.
+This issue, too, has yet to be addressed.
+Nevertheless, it is important to bear in mind that the question of whether there are other explanations for the difference in treatment is analytically quite distinct from the question whether the claimants and their comparators are in the same employment within the meaning of section 1(6).
+So too is the question of what modifications to the womens terms and conditions would be necessary to eliminate the less favourable treatment.
+At times during the argument at all levels in this case, it appears that those distinctions have not been observed.
+In May 2008, the employment tribunal determined the same employment issue in the claimants favour.
+The employment judge defined the question in this way, at para 61: In the present case, the claimants and comparators are neither employed under the same terms and conditions nor in the same establishment.
+It is therefore necessary for the claimants to satisfy the Tribunal that if their comparators were employed at their establishment, they would be employed under broadly similar terms to those that they are employed under at present.
+That, as the Court of Session later acknowledged, was exactly the right question.
+The judge answered that question in the affirmative.
+It was not enough for the respondents to say that the comparators would never be employed at the same establishment.
+They did some of their work at schools, there was no suggestion that this work was of less significance than the work they did elsewhere, and when they did work at schools there was no change to their terms and conditions of employment.
+There was no persuasive evidence before the Tribunal that in the event they were based at the same establishment as the claimants, the comparators would be employed under terms and conditions other than the Green Book (para 61 bis).
+The judge did not at that stage specifically refer to the evidence which had been given for the local authority on which that statement was based (excerpted at para 27 below), although she had earlier referred to some of it when reciting the submissions of the parties.
+The local authority appealed to the Employment Appeal Tribunal, which handed down judgment allowing the appeal in May 2009: UKEATS/47/08, [2009] ICR 1363.
+Lady Smith accepted the respondents argument that a woman who seeks to compare her terms and conditions with those of a man who does not work at the same establishment as she does must first show that there is a real possibility that he could be employed there to do the same or a broadly similar job to the one which he does at the other establishment.
+Such a finding was not open to the Tribunal on the evidence.
+The claimants then appealed to the Court of Session.
+Before their appeal was heard, the EAT decided the case of City of Edinburgh Council v Wilkinson [2010] IRLR 756.
+The women claimants were employed by the council on Blue Book terms in a variety of posts in schools, hostels, libraries or social work.
+They wished to compare themselves with manual workers, including road workers, refuse collectors, gardeners and grave diggers, employed on Green Book terms.
+Lady Smith (having revisited the House of Lords authorities discussed above) accepted that the intention of section 1(6) could be undermined if claimants were required to establish, as fact, that there was a real possibility of their comparators being employed at the same establishments as them.
+It was enough to show that it is likely that those comparators would, wherever they worked, always be employed on the same terms and conditions.
+If they were always employed on the same terms and conditions, it was legitimate to assume that they would be employed on those terms and conditions at the claimants establishment and men and women would thus be shown to be in the same employment (para 77).
+The paradigm example of the required hypothetical exercise would be where the comparators were always employed under the same collective agreement, as in that case.
+When the present case came before the Court of Session, in January 2011, that court agreed with Lady Smiths rejection of the real possibility test in Wilkinson: [2011] CSIH 2, 2011 SLT 203.
+Nevertheless, Lady Paton (delivering the opinion of the court) held that the evidence did not support the employment tribunals factual conclusion.
+She quoted several paragraphs from the evidence of Mr Archibald, for the local authority, at para 35 of her judgment, which included the following: If a manual worker comparator were for any reason to transfer to do their job solely and only in a school context, which would seem an impossible suggestion, then I cannot envisage other than that they would retain core Green Book conditions, but because of the nature of the work undertaken across all educational establishments, their terms and conditions would require to be very significantly varied to make working in such locations possible (para 32).
+In her view, that passage was concerned with a worker who was transferred to do most of his work at a school but remained based at his depot.
+Later passages in Mr Archibalds evidence hypothesised a manual worker based at a school: Conceivably some new, hybrid, handyperson type job incorporating all the tasks of the comparators could be created but as to what the terms of such a job would be would be difficult to assess if it was to remain on Manual Worker terms, because of the job content then the Green Book terms any such postholder would be on (whether doing a hybrid job or his/her current job) would not be similar to those s/he currently enjoys because so many of the provisions of the Green Book which s/he now enjoys would no longer be apt.
+I cannot imagine even in the hypothetical context the job or jobs being able to remain similar to what they would be now they simply would not fit into any JES manual worker profile and that would have an effect on their terms and conditions (para 36).
+Hence the claimants had not established that, if the comparators were based at the same establishment as the claimants, the comparators would still have been employed on Green Book terms and conditions.
+The appeal was therefore refused, not because the employment tribunal had applied the wrong legal test, but because the evidence did not support the conclusion on the facts.
+To complete the chronology, the Wilkinson case then came before the Court of Session: [2011] CSIH 70, 2012 SC 423.
+The Court upheld the decision of the EAT.
+Lord Eassie held, at para 35, that: What has to be considered is whether if a manual worker, in casu a gardener, refuse collector, or grave digger, whether hypothetically likely or not, were to be located in the claimants establishment for the performance of his current job he would continue to be employed on terms and conditions applicable to manual workers.
+Lady Paton distinguished the case from the present one, because the tribunal had analysed the evidence relating to the terms and conditions of work for the hypothetical transposed worker, and found it not inconceivable that he could be assigned to work at one of the claimants establishments and that, if so, he would still be employed on Green Book terms.
+But both she, at para 49, and Lord Hardie, at para 54, disagreed with Lord Eassies further observation, in para 35, that it was: erroneous (perhaps particularly in an equal value claim) to consider whether, on the transfer of the male comparator hypothetically to the womans establishment, adjustment might be made to his terms and conditions to dovetail more closely with those of the female claimant.
+Thus, it would appear that, while the Court of Session has rejected the real possibility test, it remains unclear to what extent the Tribunal is obliged to hypothesise about possible adjustments to the terms and conditions which would apply in the unlikely event of the comparator being transferred to work at the same establishment as the claimant.
+Discussion
+Not surprisingly, Ms Dinah Rose QC, on behalf of the appellant claimants, argues that the tribunal should not speculate about the adjustments to the comparators present terms and conditions which might be made in the unlikely event that they were transferred to the claimants workplace.
+The hypothesis is that the comparators are transferred to do their present jobs in a different location.
+The question is whether in that event, however unlikely, they would remain employed on the same or broadly similar terms and conditions to those applicable in their current place of work.
+As Lord Slynn had recognised in the British Coal Corporation case, the object of the legislation was to allow comparisons to be made between workers who did not and never would work in the same work place.
+An example might be a manufacturing company, where the (female) clerical workers worked in an office block, whereas the (male) manufacturers worked in a factory.
+She also argues that, the employment tribunal having adopted the correct test, the Court of Session should not have interfered with its findings in fact.
+The tribunal had founded its conclusion on the first of the two passages of Mr Archibalds evidence quoted in paragraph 27 above.
+This was contemplating that the manual workers would become based in the claimants schools in order to do their present jobs, although he could not envisage that ever happening.
+In the second passage, he was hypothesising the creation of a completely new all purpose handyman who might plausibly be based in schools.
+That was an unnecessary and illegitimate hypothesis and the tribunal was clearly entitled to conclude that there was no compelling evidence that the comparators would not be employed on the same or broadly similar terms and conditions in the unlikely event that they became based in schools.
+Mr Truscott, for the local authority, agrees that there is no need to show a real possibility that the comparators could be transferred to do their current jobs in the claimants workplace.
+But, he argues, how does the British Coal Corporation test work in a factual situation such as this, which goes well beyond what was envisaged in that case? That case was premised on the fact that the comparators could be based at the same place as the claimants, even though some of them were not.
+So, while he agrees that there is no need to show a real possibility that the workers could be co located, he argues that it should at least be feasible that they might be.
+The evidence of Mr Archibald was clear that it was not.
+I have no hesitation in preferring the arguments presented by Ms Rose.
+In the first place, it is by no means clear from the facts reported in the British Coal Corporation case that all the women claimants were based in collieries where there might also be surface mine workers employed.
+In the second place, there is no hint of a real possibility or feasibility test in that case and I find it difficult to discern a genuine difference in principle between them.
+Both add an unwarranted gloss to the wording of the subsection as interpreted in the British Coal Corporation case.
+In the third place, to adopt such a test would be to defeat the object of the exercise.
+This is not just a matter of preventing employers from so organising their workplaces that the women work in one place and the men in another.
+There may be perfectly good reasons for organising the work into different places.
+But the object of the legislation is to secure equality of treatment, not only for the same work, but also for work rated as equivalent or assessed by the experts to be of equal value.
+It stands to reason, therefore, that some very different jobs which are not or cannot be carried out in the same workplaces may nevertheless be rated as equivalent or assessed as having equal value.
+One example is the (female) office worker who needs office equipment in a clean environment and the (male) factory worker who needs machines which create dirt and dust.
+But another is the (female) factory worker who puts microscopic circuits on silicon chips in one factory and the (male) factory worker who assembles computer parts in another.
+The fact that of necessity their work has to be carried on in different places is no barrier to equalising the terms on which it is done.
+It is well known that those jobs which require physical strength have traditionally been better rewarded than those jobs which require dexterity.
+It is one of the objects of the equality legislation to iron out those traditional inequalities of reward where the work involved is of genuinely equal value.
+In the fourth place, it is not the function of the same employment test to
+establish comparability between the jobs done.
+That comparability is established by the like work, work rated as equivalent and work of equal value tests.
+Furthermore, the effect of the deemed equality clause is to modify the relevant term of the womans contract so as not to be less favourable than a term of a similar kind in the contract under which the man is employed or to include a beneficial term in her contract if she has none (section 1(2)(a), (b) or (c) as the case may be).
+That modification is clearly capable of taking account of differences in the working hours or holiday entitlement in calculating what would be equally favourable treatment for them both.
+Moreover, the equality clause does not operate if a difference in treatment is genuinely due to a material factor other than sex (section 1(3)).
+The same employment test should not be used as a proxy for those tests or as a way of avoiding the often difficult and complex issues which they raise (tempting though this may be for large employers faced with multiple claims such as these).
+Its function is to establish the terms and conditions with which the comparison is to be made.
+The object is simply to weed out those cases in which geography plays a significant part in determining what those terms and conditions are.
+In the fifth place, the construction of section 1(6) favoured by the appellants
+is more consistent with the requirements of European Union law than is the construction favoured by the respondents.
+The 1970 Act was the United Kingdoms way of giving effect in United Kingdom law to the principle of equal treatment of men and women, first enshrined in article 119 EEC, then translated into article 141 EC, and now translated into article 157 of the Treaty on the Functioning of the European Union.
+The Court of Justice held as long ago as 1976, in the case of Defrenne v Sabena (Case 43/75) [1976] ICR 547, 566, para 12 that the principle of equal pay for men and women forms part of the foundations of the community and has direct effect in the member states in relation to direct discrimination which may be identified solely with the aid of the criteria based on equal work and equal pay.
+As Advocate General Geelhoed explained in Lawrence v Regent Office Care Ltd (Case C 320/00) [2003] ICR 1092: It is not evident from the wording of Article 141 EC that the comparison must be confined to one and the same employer.
+Its case law demonstrates that the Court has consistently stood by its requirement that for a finding of direct discrimination there must be a clear difference in pay vis vis male co workers working in the same establishment or service (see, inter alia, Defrenne v Sabena (Case 43/75) [1976] ICR 547, 567, para 22) or that the difference in pay must have its origin in legislative provisions or provisions of collective labour agreements (Defrenne, para 21). (para 46)
+There were three categories of case where it was possible to go outside the individual undertaking or service in order to make the comparison: first, where statutory rules applied to the working and pay conditions in more than one undertaking, establishment or service, such as the pay of nurses in the National Health Service; second, where several undertakings or establishments were covered by the same collective works agreement or regulations; and third where terms and conditions were laid down centrally for more than one organisation or business within a holding company or conglomerate (paras 50, 49).
+This was because: The feature common to the three categories is that regulation of the terms and conditions of employment actually applied is traceable to one source, whether it be the legislature, the parties to a collective works agreement, or the management of a corporate group (para 51).
+This was an essential criterion because article 141 was addressed to those who may be held responsible for the unauthorised differences in terms and conditions of employment (para 52).
+Hence: It is clear from the foregoing that the direct effect of article 141 EC extends to employees working for the same legal person or group of legal persons, or for public authorities operating under joint control, as well as cases in which for purposes of job classification and remuneration, a binding collective agreement or statutory regulation applies.
+In all these cases the terms and conditions of employment can be traced back to a common source (para 54).
+In Lawrence itself, the Court of Justice agreed that the principle was not limited to situations in which men and women worked for the same employer (Judgment, para 17).
+But in the case in question, the differences cannot be attributed to a single source, there is no body which is responsible for the inequality and which could restore equal treatment (Judgment, para 18).
+This was because the claimants, women cleaners and catering workers who had previously been employed by North Yorkshire County Council and whose work had then been rated as equivalent to that of men doing jobs such as gardening, refuse collection and sewage treatment, were now working for the private company to whom the cleaning and catering service had been contracted out.
+They could no longer, therefore, compare their pay and conditions with the men who now worked for a different employer. (It is worth noting that no question had been referred to the court about the effect of the regulations governing the transfer of undertakings.)
+The position is thus that, for the principle of equal pay to have direct effect, the difference in treatment must be attributable to a single source which is capable of putting it right.
+As it happens, the researches of counsel have discovered no case in the Court of Justice in which the principle of equal pay has not been applied between men and women who work for the same employer.
+However, in Department for Environment, Food and Rural Affairs v Robertson [2005] EWCA Civ 138, [2005] ICR 750, the Court of Appeal held that the terms and conditions of civil servants working in different Government departments were not attributable to a single source for the purpose of article 141 EC.
+Although they were all the servants of the Crown, responsibility for negotiating and agreeing their pay and conditions had been devolved by delegated legislation to the individual departments concerned.
+It was common ground that the claimants and their would be comparators in the Department for Transport, Environment and the Regions were not in the same employment within the meaning of section 1(6) of the 1970 Act, because they did not work at the same establishment and common terms and conditions had not been observed in the two departments since the delegation.
+Mr Robin Allen QC, for the Equality and Human Rights Commission, tells us that it is the view of the Commission that Robertson was wrongly decided, because it did lie within the power of the Crown to put matters right.
+It is not necessary for us to determine that question now.
+In this case it is quite clear that the difference in treatment between the claimants and their comparators is attributable to a single source, namely the local authority which employs them and which is in a position to put right the discrepancy if required to do so.
+If section 1(6) were to operate as a barrier to a comparison which was required by EU law in order to give effect to the fundamental principle of equal treatment, it would be our duty to disapply it.
+However, for the reasons given earlier, it sets a low threshold which does not operate as a barrier to the comparison proposed in this case.
+I would therefore allow this appeal and restore the decision of the
+employment tribunal.
+The employment judge asked herself the right question and was entitled on the evidence to answer it in the way that she did.
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+These appeals raise important and difficult issues in the field of equity and trust law.
+Both appeals raise issues about the so called rule in Hastings Bass.
+One appeal (Pitt) also raises issues as to the courts jurisdiction to set aside a voluntary disposition on the ground of mistake.
+It is now generally recognized that the label the rule in Hastings Bass is a misnomer.
+The decision of the Court of Appeal in In re Hastings Bass, decd [1975] Ch 25 can be seen, on analysis, to be concerned with a different category of the techniques by which trust law controls the exercise of fiduciary powers.
+That decision is concerned with the scope of the power itself, rather than with the nature of the decision making process which led to its being exercised in a particular way (see R C Nolan, Controlling Fiduciary Power [2009] CLJ 293, especially pp 294 295 and 306 309).
+The rule would be more aptly called the rule in Mettoy, from the decision of Warner J in Mettoy Pension Trustees Ltd v Evans [1990] 1 WLR 1587.
+But the misnomer is by now so familiar that it is best to continue to use it, inapposite though it is.
+As Mettoy illustrates, the rule is concerned with trustees who make decisions without having given proper consideration to relevant matters which they ought to have taken into consideration.
+It has also been applied to other fiduciaries (in Pitt Mrs Pitt was acting as a receiver appointed by the Court of Protection).
+Mettoy was concerned with the rules of an occupational pension scheme, as are some other cases on the rule.
+But since the turn of the century there have been several cases concerned with family trusts, and in particular with taxplanning arrangements involving trusts, where the arrangements have for one reason or another proved unexpectedly disadvantageous, and the court has been asked to restore the status quo ante under the Hastings Bass rule.
+Futter is such a case, as Norris J pointed out in blunt terms at the beginning of his judgment, [2010] EWHC 449 Ch, [2010] STC 982, para 2: This is another application by trustees who wish to assert that they have acted in an un trustee like fashion and so have failed properly to exercise a power vested in them.
+The trustees wish to take advantage of this failure to perform their duties in order to enable the beneficiaries to avoid paying the tax liability consequent upon the trustees decision.
+Put like that (and I am conscious that that is not the only way in which the situation may be described) the possibility is raised that the development of the rule may have been diverted from its true course.
+These appeals are the first cases on the Hastings Bass rule in which the Commissioners of HM Revenue and Customs (the Revenue, so as to include their predecessors, the Commissioners of Inland Revenue) have been joined as parties in the proceedings.
+It is the Revenue that has taken on the task of challenging, if not the existence, at least the limits of the Hastings Bass rule.
+It is no coincidence that the judgment of the Court of Appeal in these two appeals (which were heard together in that court also) is the first fully considered judgment above first instance level, and the first to come on further appeal to the Supreme Court (Mettoy was not cited to the Court of Appeal in Stannard v Fisons Pension Trust Ltd [1991] Pen LR 225, discussed in para 34 below).
+Rescission of a voluntary disposition on the ground of mistake is, by contrast, a topic on which there is a good deal of authority, including a decision of the House of Lords, Ogilvie v Allen (1899) 15 TLR 294.
+But some of the authorities are quite old, and others are debatable.
+There has been much discussion of the distinction drawn by Millett J in Gibbon v Mitchell [1990] 1 WLR 1304, 1309, between a relevant mistake having to be as to the effect of the transaction itself and not merely as to its consequences or the advantages to be gained by entering into it.
+So here too review by the Supreme Court is appropriate.
+This court has therefore had to consider a large volume of case law, culminating in the judgment of Lloyd LJ in the Court of Appeal in these appeals: [2011] EWCA Civ 197, [2012] Ch 132.
+That judgment, described by Longmore LJ, para 227, as remarkable, and by Mummery LJ, para 230, as a very fine comprehensive and clarifying judgment, runs to 226 paragraphs.
+I share their admiration, and I agree with Lloyd LJs main conclusions as to the scope of the Hastings Bass rule, and the outcome of the appeals on that issue.
+But I will say at once that I take a different view of the disposal of the appeal in Pitt on the mistake issue.
+Before any detailed consideration of the case law it may be helpful to identify, in general terms, some of the principal topics in the appeals.
+It has often been said (for instance, by Norris J in Futter, para 21) that the rule in Hastings Bass is not founded in the law of mistake, and in his judgment Lloyd LJ dealt with them as almost completely separate topics.
+They do cover different areas, in that the Hastings Bass rule is restricted to decisions by trustees and other fiduciaries, and does not necessarily require the decision maker to be under a positive misapprehension: mere absence of thought may be sufficient.
+The courts wider jurisdiction to rescind a transaction on the ground of mistake is not limited to transactions entered into by fiduciaries, and does generally require there to have been something that can be identified as an operative mistake.
+The significance of fault in the error or inadvertence is a further point of distinction.
+Nevertheless there is a degree of overlap between the two principles in their practical application.
+In some of the first instance cases on the Hastings Bass rule judges have drawn attention, with evident surprise, to the absence of any alternative claim for relief by way of rectification or rescission on the ground of mistake.
+In some of the cases (such as Abacus Trust Co (Isle of Man) v Barr [2003] EWHC 114 (Ch), [2003] Ch 409, the facts of which are summarized at paras 36 and 37 below) rescission on the ground of mistake would seem to have been the natural remedy for the trustees to seek.
+There must be some suspicion that reliance on the Hastings Bass rule has come to be seen as something of a soft option, or at any rate as a safer option, at a time when it was supposed, wrongly, that the application of the rule did not require the granting of a remedy which was discretionary in the sense that it might be withheld because some equitable defence was established.
+The way in which the law seemed to be developing, especially in cases concerned with unsuccessful tax planning arrangements, led one legal scholar (Professor Charles Mitchell, Reining in the rule in In Re Hastings Bass, (2006) 122 LQR 35, 41 42) to ask: Why should a beneficiary be placed in a stronger position than the outright legal owner of property if he wishes to unwind a transaction to which he has given his consent, but which turns out to have unforeseen tax disadvantages? Professor Mitchell went on to comment, presciently: The courts will have to look elsewhere for the means of reining in the rule in Re Hastings Bass, most probably to the equitable bars to unwinding a transaction that would come into play if it were decisively recognised that the rule renders transactions voidable rather than void.
+This court now has the opportunity of confirming the Court of Appeals recognition of that essential point.
+THE HASTINGS BASS RULE
+The three strands of the problem
+appeals as In the Court of Appeal [2012] Ch 132, para 227 Longmore LJ described the . examples of that comparatively rare instance of the law taking a seriously wrong turn, of that wrong turn being not infrequently acted on over a 20 year period but this court being able to reverse that error and put the law back on the right course.
+If the law did take a seriously wrong turning it was because a number of first instance judges were persuaded that three separate strands of legal doctrine, all largely associated with practice in the Chancery Division, should be spun or plaited together so as to produce a new rule.
+The first strand of legal doctrine starts with the entirely familiar proposition that trustees, in the exercise of their fiduciary discretions, are under constraints which do not apply to adult individuals disposing of their own property.
+I made some uncontroversial observations about this in Scott v National Trust for Places of Historic Interest or Natural Beauty [1998] 2 All ER 705, 717: Certain points are clear beyond argument.
+Trustees must act in good faith, responsibly and reasonably.
+They must inform themselves, before making a decision, of matters which are relevant to the decision.
+These matters may not be limited to simple matters of fact but will, on occasion (indeed, quite often) include taking advice from appropriate experts, whether the experts are lawyers, accountants, actuaries, surveyors, scientists or whomsoever.
+It is, however for advisers to advise and for trustees to decide: trustees may not (except in so far as they are authorised to do so) delegate the exercise of their discretions, even to experts.
+This sometimes creates real difficulties, especially when lay trustees have to digest and assess expert advice on a highly technical matter (to take merely one instance, the disposal of actuarial surplus in a superannuation fund).
+The same principles apply, at least in a modified manner, to other persons acting in a fiduciary capacity.
+There are superficial similarities between what the law requires of trustees in their decision making and what it requires of decision makers in the field of public law.
+This was noted by the Court of Appeal in its judgment, delivered by Chadwick LJ, in Edge v Pensions Ombudsman [2000] Ch 602, 628 629.
+It was also noted by Lord Woolf MR in Equitable Life Assurance Society v Hyman [2002] 1 AC 408, para 20.
+The analogy cannot however be pressed too far.
+Indeed it was expressly disapproved by the Court of Appeal in these appeals (Lloyd LJ at para 77 and Mummery LJ at para 235).
+In Abacus Trust Co (Isle of Man) v Barr [2003] Ch 409, para 29 Lightman J identified three important differences as the discretionary nature of relief on judicial review, a different approach to nullity, and strict time limits.
+The second strand is that a voluntary disposition (typically a gift, outright or in settlement) may be set aside on the ground of mistake.
+As already noted, this branch of equitable jurisdiction is distinct from the Hastings Bass rule, but similar issues arise as to the nature and gravity of the relevant error or inadvertence, and in practice they sometimes overlap.
+The mistake jurisdiction was considered as a separate issue in paras 164 to 220 of Lloyd LJs judgment.
+He identified the correct test as derived in part from the judgment of Lindley LJ in Ogilvie v Littleboy (1897) 13 TLR 399, 400 (approved by the House of Lords as Ogilvie v Allen (1899) 15 TLR 294), a case which emerged from the shadows to be cited to the court after a century of obscurity.
+He also considered recent decisions including Gibbon v Mitchell [1990] 1 WLR 1304 and In re Griffiths decd [2008] EWHC 118 (Ch), [2009] Ch 162.
+The third strand of legal doctrine, and the most abstruse one, is concerned with the partial validity of an instrument which cannot be entirely valid because it infringes some general rule of law.
+It is an issue which arises, often under the rubric of severance, in many different areas of law.
+One example is contract law, especially in the context of illegal restraints on trade (see the judgment of Jonathan Sumption QC in Marshall v NM Financial Management Ltd [1995] 1 WLR 1461, upheld by the Court of Appeal [1997] 1 WLR 1527).
+Another example is bye laws held to be partly ultra vires (see the speech of Lord Bridge in Director of Public Prosecutions v Hutchinson [1990] 2 AC 783).
+In the field of trust law the most common invalidating factor, until the
+Perpetuities and Accumulations Act 1964, was the unreformed rule against perpetuities, or remoteness of vesting.
+This applied relentlessly both to dispositions of property made by settlors or testators of property at their free disposal, and to dispositions made in the exercise of special (that is, restricted) powers of appointment over settled property.
+Special powers of appointment might be exercisable either by individual donees (for instance, by a parent with a life interest in favour of children with interests in expectancy) or by the trustees as a body.
+But in either case the power could be exercised only within the limits, and for the purposes, marked out by the donor of the power.
+And in either case the interests appointed had to conform to the rule against perpetuities as it applied to lives in being at the time of the creation of the power (that is, the date of the original settlement, or the date of the testators death).
+These matters were once familiar (indeed, elementary) to almost all chancery practitioners.
+Law and practice at the chancery bar have moved on.
+The rule against perpetuities has lost its terrors since the Perpetuities and Accumulations Act 1964 (which was almost completely non retrospective) gradually came to apply to more and more trusts, followed by the Perpetuities and Accumulations Act 2009.
+Family trusts are now a shrinking enclave designated as private client work, and pensions trusts, burdened by increasingly complex regulatory statutes, are another enclave reserved for pensions specialists.
+But in order to investigate the origins of the disputed rule in In re Hastings Bass it is necessary to revisit, without much nostalgia, this area of trust law as it was about 50 years ago.
+There was a body of fairly arid case law, now almost entirely obsolete, about the validity of interests in settled property which were ulterior to but not dependent on antecedent interests which infringed the rule against perpetuities.
+In re Hubbards Will Trusts [1963] Ch 275 and In re Bucktons Settlement Trusts [1964] Ch 497 are examples from just before the enactment of the reforming statute.
+In re Abrahams Will Trusts [1969] 1 Ch 463 and In re Hastings Bass, decd [1975] Ch 42, discussed below, can be seen as a final chapter in that case law.
+There is one further background matter to be noted.
+Under traditional family settlements, when the modern type of discretionary settlement was still fairly rare, the most common dispositive power exercisable by trustees was the power of advancement.
+This is a power to accelerate the interest of a beneficiary interested in capital, exercisable with the consent of any beneficiary with a prior interest (typically a parent with a prior life interest).
+Such powers were so much common form that section 32 of the Trustee Act 1925 provided a default power, which could be excluded or (as often happened) extended by the trust instrument.
+The power was typically exercisable by a payment or transfer to or for the advancement or benefit of the beneficiary.
+In In re Pilkingtons Will Trusts [1964] AC 612 the House of Lords, differing from the judge on one point and from the Court of Appeal on another, held that a power in those terms could (in principle, and apart from the rule against perpetuities) be exercised for the benefit of a minor beneficiary (the testators nephews daughter, who was only two years old when the proceedings started in 1959) by a transfer of up to half of her expectant share, with her fathers consent, to the trustees of a new settlement under which she would attain a vested interest in capital at 30.
+This would lawfully avoid estate duty on her fathers death if he lived for a further five years.
+But the House of Lords also held that the new settlement must, for the purposes of the rule against perpetuities, be treated as if it were an appointment made under a special power conferred by the testators will.
+The trusts of the new settlement did not meet that requirement as the child was not a life in being at the testators death in 1935.
+But valid trusts to much the same effect could have been achieved (and may eventually have been put in place) by referring to the alternative contingency of survival until 21 years after her fathers death, as he was alive in 1935.
+Vestey, Abrahams and Hastings Bass
+In the Court of Appeal Lloyd LJ correctly identified the decision of the Court of Appeal in In re Vesteys Settlement [1951] Ch 209 and that of Cross J in In re Abrahams Will Trusts [1969] 1 Ch 463 as the most important precursors to the decision of the Court of Appeal in In re Hastings Bass [1975] Ch 25.
+Lloyd LJ analysed these three cases very thoroughly at paras 33 to 67 of his judgment.
+Because his analysis is so full and accurate I can deal with the cases more briefly, especially as to the facts.
+It is worth noting that although all three cases had an important tax element, in each case the trustees misunderstanding was not about tax law.
+It was about the general law: in the first case about the effect of section 31 of the Trustee Act 1925, and in the other two about the effect of the rule against perpetuities.
+In Vestey the trustees of a large settlement made by Lord Vestey and his brother Sir Edmund Vestey exercised their discretion over the allocation of income with the apparent intention of income being accumulated during the minorities of a number of beneficiaries.
+They set out to do this by a sort of framework resolution that income should belong to the minor beneficiaries in specified shares, followed by further half yearly resolutions to the effect that income was not required for the beneficiaries maintenance, and should therefore be accumulated under section 31 of the Trustee Act 1925.
+The difficulty was that the language of section 31 did not really fit such a situation.
+At first instance Harman J held that the resolutions were ineffective.
+That result would have avoided surtax but left the income in limbo (Evershed MRs suggestion in the Court of Appeal that the income would have been held on a resulting trust for the settlors seems, with respect, very doubtful).
+But the minor beneficiaries appealed, and the Court of Appeal gave effect to the framework resolution, treating the references to accumulation under section 31 as peripheral.
+Evershed MR stated ([1951] Ch 209, 220 to 221): I do not think it can or ought to be said that if, as I hold, the trustees wrongly thought that section 31 would operate, then a result is produced substantially or essentially different from that which was intended.
+The result was that for the period covered by the trustees resolutions, the minor beneficiaries got their income, but the Revenue got their surtax on that income.
+Abrahams and Hastings Bass were both cases about plans to save estate duty by terminating a life interest and passing on settled property to the next generation.
+The plans (carried out in 1957 and 1958 respectively) were on the same general lines as that in Pilkington, the first instance decision in which ([1959] Ch 699, Danckwerts J) had provided an encouraging precedent (the Revenue were joined in the proceedings and given leave to appeal in 1960).
+The Revenue were also parties to the Abrahams and Hastings Bass cases, and in each case (ironically, in view of later developments, as Norris J pointed out) it was the Revenue which argued for the complete invalidation of the resettlement, partly through the direct operation of the rule against perpetuities, and partly (as an argument against severance) because the effect of the operation of the rule is wholly to alter the character of the settlement, as Cross J put it in Abrahams at p 485.
+Cross J rejected an argument approximating an advancement by way of resettlement to the exercise of a power of appointment.
+Although they were treated in the same way for perpetuity purposes, in his view the similarity ended there (p. 485 D E): The interests given to separate objects of an ordinary special power are separate interests, but all the interests created in Caroles fund were intended as part and parcel of a single benefit to her.
+Cross J held, therefore, that there was no valid exercise of the power of advancement.
+In Hastings Bass the Court of Appeal, in a single judgment delivered by Buckley LJ, took a different view of a similar duty saving transaction.
+The true ratio of the decision has been much debated, both in forensic argument and by legal scholars.
+It has been considered twice by Lloyd LJ, first in Sieff v Fox [2005] EWHC 1312 (Ch), [2005] 1 WLR 3811 paras 43 and 44 (his last first instance case before his promotion to the Court of Appeal) and again, at much greater length, in his judgment in this case (paras 46 to 67).
+It is perhaps simplest to start with what Hastings Bass did not decide.
+It was not about mistake.
+Although one case on mistake (Wollaston v King (1869) LR 8 Eq 165) was cited, it was not referred to in the judgment.
+It would not have been enough for the Revenue to establish that the exercise of the trustees power might have been voidable at the instance of a beneficiary.
+The Revenue could succeed only by establishing that there had been no valid advancement at all.
+Nor did the decision turn on any inquiry into what was actually in the minds of the trustees in exercising the power of advancement.
+There seems to have been no evidence of this, and in Buckley LJs discussion at pp 39 41 (extensively quoted by Lloyd LJ at paras 53 56) the recurrent theme is what the trustees, as reasonable trustees, should or would have considered or intended.
+The third negative point to make is that Hastings Bass did not overrule Abrahams.
+It was distinguished on the basis that in Abrahams the attenuated residue of the sub settlement not struck down by the rule against perpetuities may not have been for the benefit of the beneficiary in question.
+But Buckley LJ did differ from Cross Js view that the benefit conferred by an advance by way of resettlement was of a monolithic character, preferring the view that it was a bundle of benefits of different characters.
+If and so far as it is an issue of severability, it is obviously easier to sever part of a bundle than part of a monolith.
+Buckley LJs own statement of the principle of the decision in Hastings Bass seems to be the passage at p 41 which has often been cited in later cases: To sum up the preceding observations, in our judgment, where by the terms of a trust (as under section 32) a trustee is given a discretion as to some matter under which he acts in good faith, the court should not interfere with his action notwithstanding that it does not have the full effect which he intended, unless (1) what he has achieved is unauthorised by the power conferred upon him, or (2) it is clear that he would not have acted as he did (a) had he not taken into account considerations which he should not have taken into account, or (b) had he not failed to take into account considerations which he ought to have taken into account.
+Lloyd LJ did not accept that as the true ratio.
+He thought that the Court of Appeal had already decided the case on the ground that the advancement, so far as not struck down by the rule against perpetuities, must stand unless it could not, in that attenuated form, reasonably be regarded as beneficial to the advancee.
+That is an objective test which does not call for an inquiry into the actual states of mind of the trustees.
+Lloyd LJ expanded this line of thought in para 66: If the problem to be resolved is what is the effect on an operation such as an advancement of the failure of some of the intended provisions, because of external factors such as perpetuity, it is not useful to ask what the trustees would have thought and done if they had known about the problem.
+The answer to that question is almost certainly that they would have done something different, which would not have run into the perpetuity or other difficulty.
+It is for that reason that the test has to be objective, by reference to whether that which was done, with all its defects and consequent limitations, is capable of being regarded as beneficial to the intended object, or not.
+If it is so capable, then it satisfies the requirement of the power that it should be for that persons benefit.
+Otherwise it does not satisfy that requirement.
+In the latter case it would follow that it is outside the scope of the power, it is not an exercise of the power at all, and it cannot take effect under that power.
+On this analysis, limb (1) of Buckley LJs statement of principle covers the whole ground, and limb (2) adds nothing.
+I respectfully agree with Lloyd LJs criticism of the statement of principle.
+I think it is also open to criticism for the generality of its reference to unintended consequences (notwithstanding that it does not have the full effect which he intended).
+That is a far reaching extrapolation from one case about section 31 of the Trustee Act 1925 and two cases about the rule against perpetuities.
+It set ajar a door that was pushed wide open in Mettoy Pension Trustees Ltd v Evans [1990] 1 WLR 1587 and other later cases.
+Mettoy
+In Mettoy Warner J applied the supposed new principle in the context of an occupational pension scheme, and in circumstances where the trustees exercise of a discretionary power was within the scope of that power.
+There was no invalidating factor, such as the rule against perpetuities, applicable under the general law.
+In doing so Warner J dismissed two significant arguments for limiting the scope of the new principle.
+The employer, Mettoy Co Plc, and the trustees of its pension scheme had in 1983 executed a deed to replace a 1980 deed (and some supplementary deeds) which were ineffective because of an error about the trusteeship.
+The rules scheduled to the 1980 deed included rule 13, providing for the winding up of the scheme in certain circumstances, the priority of claims in the winding up and the disposal of any ultimate surplus.
+This rule differed from an earlier winding up rule in several respects.
+Most materially, the discretion to use any ultimate surplus in augmenting benefits was to be exercisable by the employer (instead of by the trustees, as provided by the earlier rule).
+Moreover, in 1983 Mettoys financial position was precarious (as a result of an ill advised diversification from die cast model vehicles into personal computers) so that winding up of the scheme was much more than a remote possibility.
+In the event the scheme had to be wound up in 1984.
+The trustees issued an originating summons raising a number of questions, the most important being (in effect) whether the 1983 deed was wholly invalid, or valid except for rule 13, or valid except that the power of augmentation remained exercisable by the trustees.
+These questions arose because the trustees had admittedly not considered, or been advised about, the significance of rule 13.
+In response to another question raised by the originating summons, Warner J held that the power of augmentation was, even when exercisable by the employer, a fiduciary power.
+On that basis it was not clear that the trustees, if they had fully considered the matter, would have objected to the change effected by rule 13 ([1990] 1WLR 1587, 1628A 1630A).
+But by then Warner J had upheld (in a passage from pp1621G to 1626A) the existence of a principle which may be labelled the rule in Hastings Bass.
+He took Buckley LJs statement of principle in that case (set out at para 24 above) and reformulated it in positive terms, and so far as relevant to the facts of the case, as follows (p 1621H): where a trustee acts under a discretion given to him by the terms of the trust, the court will interfere with his action if it is clear that he would not have acted as he did had he not failed to take into account considerations which he ought to have taken into account.
+Warner J rejected the submissions of Mr Edward Nugee QC, recorded at pp 1622G to 1623G, that the principle, although existent, was of very narrow scope, and that the cases of Vestey, Abrahams and Hastings Bass (together with Pilkington, where there was a proposal for a resettlement rather than a completed transaction): . were about the consequences of what [Mr Nugee] referred to as an excessive execution of a power, ie the purported exercise of a power in a way that the law rendered partially ineffective.
+Warner J dismissed this argument at p1624B C: If, as I believe, the reason for the application of the principle is the failure by the trustees to take into account considerations that they ought to have taken into account, it cannot matter whether that failure is due to their having overlooked (or to their legal advisers having overlooked) some relevant rule of law or limit on their discretion, or is due to some other cause.
+Warner J also dismissed what he called Mr Nugees all or nothing argument (pp 1624H 1625A).
+In some cases the court would have to declare void the whole of some purported exercise of discretion by trustees.
+But in other cases (for instance where the trustees would have decided, had they thought about it properly, to omit some particular provision from a deed) the appropriate course would be to declare that provision alone to be void.
+At p 1626D Warner J referred to the all important third question: what would the trustees have done if they had considered the matters that they failed to consider? His meticulous review of the oral and documentary evidence, including the cross examination of Mr Lillyman (who was at all material times closely involved as the employers company secretary and a director of the corporate trustee) shows that he was concerned to establish, so far as he could, what these particular trustees (and not some hypothetical reasonable trustees) would have done.
+His approach was subjective, not objective.
+I respectfully agree with Lloyd LJs view that the basis on which Mettoy was decided cannot be found in the reasoning which led to the decision in Hastings Bass.
+It can claim to be an application of Buckley LJs summary statement of principle, but only if that statement is taken out of context and in isolation from the earlier part of the judgment.
+If the principle applied by Warner J merits a name at all, it should be called the rule in Mettoy.
+But the rule as formulated by Warner J has given rise to many difficulties, both in principle and in practice.
+From Mettoy to Sieff
+Mettoy was not much considered by the court during the 1990s.
+It was cited but not referred to in the judgment of the Court of Appeal in Edge v Pensions Ombudsman [2000] Ch 602.
+That decision, on an appeal by the Pensions Ombudsman from the judgment of Sir Richard Scott V C [1998] Ch 512, was largely concerned with the jurisdiction of the Pensions Ombudsman under Part X of the Pension Schemes Act 1993.
+The general tenor of the Court of Appeals judgment is that neither the Ombudsman nor the court has power to intervene in decisions made by trustees unless they have acted in breach of duty.
+That can be seen as putting down a marker that Lloyd LJ has since recognised.
+In Stannard v Fisons Pension Trusts Ltd [1991] Pen LR 225, in which Hastings Bass but not Mettoy was cited, the Court of Appeal modified Buckley LJs formulation, without any full discussion of the point, by putting the test in terms of what the trustees might, rather than would, have done if fully informed.
+The facts were that trustees had taken a decision about transfer values on the basis of an out of date valuation of the pension fund.
+The Court of Appeals modification of the test seems questionable since the legal significance of the error must have depended on the scale of the change in market value rather than on the precise nature of the trustees hypothetical second thoughts.
+It was not until about the year 2000 that Hastings Bass and Mettoy began to be called in aid in cases where tax planning arrangements involving trusts had gone wrong.
+The first case seems to have been Green v Cobham, decided by Jonathan Parker J in January 2000 but reported at [2002] STC 820, followed by Abacus Trust Co (Isle of Man) v National Society for the Prevention of Cruelty to Children [2001] STC 1344 (Patten J) and Breadner v Granville Grossman [2001] Ch 523 (Park J).
+Breadner was an unsuccessful attempt to extend the principle so as to circumvent a missed time limit for the exercise of a power of appointment.
+Park J observed at para 61: There must surely be some limits.
+It cannot be right that whenever trustees do something which they later regret and think that they ought not to have done, they can say that they never did it in the first place.
+The most important decisions, prior to the present appeals, are the decisions of Lightman J in Abacus Trust Co (Isle of Man) v Barr [2003] Ch 409 and Lloyd LJ in Sieff v Fox [2005] 1 WLR 3811.
+In the former case Mr Barr had participated in a management buy out of an engineering company and in 1992 he had settled his shares in the buy out vehicle, held through an Isle of Man holding company, in a settlement of which Abacus Trust Co (Isle of Man) (Abacus) was trustee.
+Abacus was administered by the Isle of Man firm of Coopers & Lybrand (C&L (IoM)).
+C&L (IoM) had close links with the English firm of Coopers & Lybrand, which advised on the buy out.
+Mr Ward Thompson of the English firm was Mr Barrs main contact.
+Under the settlement Mr Barr had a life interest, but Abacus as trustee had an overriding power of appointment in favour of a wide class of beneficiaries.
+Very soon after the creation of the settlement Mr Barr told Mr Ward Thompson that he wished 40% of the trust fund to be appointed on discretionary trusts in favour of his sons and their families, to the exclusion of himself and any wife of his.
+Through some misunderstanding this was conveyed to C&L (IoM) as a wish for 60% of the fund to be appointed, and on 22 April 1992 an appointment in that form was made.
+The mistake was discovered in August 1992 but nothing was done to try to remedy it until 2002.
+In the meantime, in 1994 the buy out vehicle was floated on the London Stock Exchange and the holding company controlled by Abacus embarked on a programme of sales of its shares.
+The judgment of Lightman J is impressively brief and incisive.
+He pointed out that Abacus was not seeking either rectification or rescission for mistake, and added in relation to the Hastings Bass rule (para 13): But in considering the ambit of the rule it is necessary to bear in mind that it is only one of the protections afforded to beneficiaries in respect of the due administration of the trust by the trustees.
+It is also important to have in mind that equity does not afford a trustee or a beneficiary a free pass to rescind a decision which subsequently proves unpalatable or unfortunate and substitute another.
+Relief is only available if the necessary conditions for its grant are satisfied.
+He referred to the authorities already discussed and observed that he did not need to resolve the issue posed by Stannard, since (para 20) clearly the trustee would not have appointed 60% of the trust fund if it had known of the settlors true wishes.
+He then addressed four issues: (1) whether there had to be a fundamental mistake; (2) whether the rule applied if there was any relevant mistake or ignorance on the part of the trustee, regardless of how it arose (and in particular, regardless of any breach of duty on the part of the trustee); (3) following from the last point, whether the rule applied on the facts of the case before him; and (4) whether, if the rule applied, the appointment was void or voidable.
+On the first issue Lightman J decided, correctly in my view, that a fundamental mistake was not necessary.
+A fundamental, or at least serious mistake may be necessary for rescission on the ground of mistake (that is relevant to the second ground of appeal in Pitt), but for the rule which Abacus was invoking (para 21): the rule does not require that the relevant consideration unconsidered by the trustee should make a fundamental difference between the facts as perceived by the trustee and the facts as they should have been perceived.
+All that is required in this regard is that the unconsidered relevant considerations would or might have affected the trustees decision, and in a case such as the present that the trustee would or might have made a different appointment or no appointment at all.
+But as his decision on the second point shows, it must be sufficiently serious as to amount to a breach of duty.
+On the second issue, Lightman J held that a breach of duty on the part of the trustee is essential to the application of the rule (para 23): What has to be established is that the trustee in making his decision has, in the language of Warner J in Mettoy Pension Trustees Ltd v Evans [1990] 1 WLR 1587, 1625, failed to consider what he was under a duty to consider.
+If the trustee has in accordance with his duty identified the relevant considerations and used all proper care and diligence in obtaining the relevant information and advice relating to those considerations, the trustee can be in no breach of duty and its decision cannot be impugned merely because in fact that information turns out to be partial or incorrect.
+That is in my view a correct statement of the law, and an important step towards correcting the tendency of some of the earlier first instance decisions.
+If in exercising a fiduciary power trustees have been given, and have acted on, information or advice from an apparently trustworthy source, and what the trustees purport to do is within the scope of their power, the only direct remedy available (either to the trustees themselves, or to a disadvantaged beneficiary) must be based on mistake (there may be an indirect remedy in the form of a claim against one or more advisers for damages for breach of professional duties of care).
+This serves to emphasise that the so called rule in Hastings Bass was not in play in that case, or in Abrahams.
+In those two cases the trustees were not at fault in failing to foresee the House of Lords decision in Pilkington several years later.
+But they purported to exercise their power of advancement in a way that was beyond the scope of that power, since it was contrary to the general law (that is the rule against perpetuities as clarified in Pilkington).
+The issue (resolved differently in Abrahams and Hastings Bass) was whether the parts of the resettlement not void for perpetuity were sufficient to amount to a proper exercise of the power of advancement.
+In Mettoy and Barr, by contrast, it was never in doubt that the relevant deed fell within the scope of the trustees power.
+This point is clearly made in paras 92 and 93 of Lloyd LJs judgment in the Court of Appeal.
+On the third issue Lightman J held that Abacus was in breach of duty, mainly because it had to take responsibility for Mr Ward Thompson, who (para 27) has declined to give evidence and answer the case made or suggest a different scenario.
+This part of the judgment turns on the particular facts of the case, but they are typical of many such cases, and I shall return to them in discussing the difficulties that still beset this area of the law.
+On the fourth issue Lightman J held that in cases where the rule applies (as opposed to cases of equitable non est factum such as Turner v Turner [1984] Ch 100) it makes the trustees disposition voidable, not void.
+The Court of Appeal agreed with his analysis, and so do I. The rule, properly understood, depends on breach of duty in the performance of something that is within the scope of the trustees powers, not in the trustees doing something that they had no power to do at all.
+Beneficiaries may lose their right to complain of a breach of trust by complicity, by laches or acquiescence or in other ways.
+Lightman J adjourned the case, expressing the hope (para 34) that a compromise would be possible.
+The absence of any further reported decision suggests that his hope was realised.
+In Sieff v Fox [2005] 1 WLR 3811 Lloyd LJ (as he had become by the time he handed down his lengthy reserved judgment) fully considered all the authorities mentioned above, and other authorities on mistake.
+I can take his judgment fairly briefly because he had occasion to reconsider it, and on one important point to depart from it, in his judgment in the Court of Appeal in these appeals.
+The case related to valuable land and chattels comprised in the Bedford settled estates, and the facts as to the trusts, and their tax implications, are very complicated.
+It is sufficient to note two points.
+First, the critical appointment (made in 2001 by the trustees in favour of Lord Howland, and with a view to a resettlement by him) required the consent of Lord Howland himself.
+In deciding whether or not to give consent Lord Howland was not acting in a fiduciary capacity.
+His consent (given in ignorance of some of the implications, including adverse tax consequences) was challenged, successfully, on the ground of mistake (see paras 115 and 119 (vii) of the judgment of Lloyd LJ).
+In his discussion of mistake, Lloyd LJ relied (paras 98 to 101) on Ogilvie v Littleboy (1897) 13 TLR 399, upheld on appeal as Ogilvie v Allen (1899) 15 TLR 294.
+The trustees exercise of their power of appointment was challenged, also successfully, under the Hastings Bass rule (see para 114, and compare para 119 (vi)).
+The second point to note is that Lloyd LJ was inclined to differ from Lightman J as to the need for the vitiating element in a fiduciary decision to amount to a breach of trust.
+Lloyd LJ referred to the trustees in Abrahams not being at fault in failing to foresee that the first instance decision in Pilkington would be reversed on an appeal made out of time.
+But Abrahams was a case in which the purported exercise of the trustees power was outside its proper scope, because it infringed the rule against perpetuities.
+This is the point on which Lloyd LJ has modified the provisional view which he expressed in Sieff v Fox.
+Futter v Futter: The facts and the first instance decision
+The appeal in Futter is concerned with incorrect advice given by solicitors as to the effect of provisions, primarily in section 87 of the Taxation of Chargeable Gains Act 1992 (TCGA), charging capital gains tax in respect of gains realised by non resident trustees.
+There were two settlements, the No 3 settlement and the No 5 settlement, made by Mr Mark Futter in 1985.
+Initially both settlements had non resident trustees, but in 2004 Mr Futter and Mr Cutbill, both resident in the United Kingdom, were appointed as trustees of the two settlements.
+Mr Cutbill was a partner in the London solicitors which gave the tax advice.
+At that stage both settlements had stockpiled gains that is, gains realised while the trust was not resident, and not yet distributed to the beneficiaries or brought in to charge for capital gains tax purposes.
+On the advice of the solicitors, the new, resident trustees on 31 March 2008 distributed the whole capital of the No 3 settlement to Mr Futter, in exercise of a power of enlargement, and on 3 April 2008 distributed 36,000 from the No 5 settlement to Mr Futters three children in equal shares, in exercise of a power of advancement.
+Each of these transactions was squarely within the scope of the relevant power.
+Mr Futter and Mr Cutbill understood (correctly) that the stockpiled gains would in consequence be attributed to Mr Futter and his children as if they were gains realised by those beneficiaries themselves.
+They also believed (incorrectly) that these attributed gains would be absorbed by allowable losses which they had realised so that no eventual tax liability would arise.
+This overlooked the effect of section 2(4) of TCGA as amended (the relevant amendment, for those interested in the fine detail, was that made by Schedule 21, para 2 of the Finance Act 1998, and not the further amendment made by Schedule 2, para 24 of the Finance Act 2008, which applied only from 5 April 2008).
+The result was a large capital gains tax liability for Mr Futter and a modest one for his children.
+Mr Futter and Mr Cutbill applied, as trustees of the two settlements, to have the deed of enlargement and the deeds of advancement declared void.
+The first four defendants, the beneficiaries, did not appear.
+The fifth defendant, the Revenue, resisted the application.
+Norris J began his judgment in spirited fashion, as already noted (para 3 above).
+However he went on to state that it was not an occasion for a first instance judge to reconsider a developed rule.
+He took the judgment of Lloyd LJ in Sieff v Fox as the leading authority on the rule, as had Sir Andrew Park in Smithson v Hamilton [2008] 1 WLR 1453, para 52, and as had Mr Robert Englehart QC in Pitt v Holt [2010] 1 WLR 1199, para 18.
+The Revenues submissions were similar to those advanced in Pitt (para 57 below), apart from the receivership point.
+As it happens the first instance judgment in Pitt was given on the first day of the first instance hearing in Futter, so that there was no real opportunity for revision of the Revenues case.
+As recorded in the judgment of Norris J the Revenue had three main lines of argument.
+The first was that the decision of the trustees was not in any meaningful sense different from what they intended (apart from the tax consequences).
+This argument echoed the distinction drawn by Millett J in Gibbon v Mitchell [1990] 1 WLR 1304, 1309 1310, between effect and consequences.
+Norris J rejected this argument on the ground that mistake was a different ground for relief, and that under the Hastings Bass rule tax consequences are rightly regarded as something that trustees must take into account in exercising their discretions.
+The Revenues second line of argument focused on the significance of the trustees error.
+It was to some extent a variation on the first argument, and it was rejected on similar grounds.
+The Revenues third submission (not pressed) was that so far from considering capital gains tax, the trustees had it in the forefront of their minds: the problem was that the advice was wrong (para 28).
+But wrong advice on tax consequences could, the judge said, lead to a perfectly orthodox application of the rule.
+Norris J held that the deeds were void, not voidable.
+He referred briefly (para 32) to the judgment of Lightman J in Barr, but noted that his reasoning (based on the trustees being at fault) was not accepted by Lloyd LJ in Sieff v Fox.
+Nevertheless Norris J considered (para 33) that the rigours of the void analysis could be mitigated by the application of equitable principles.
+Pitt v Holt: The facts and the first instance decision
+The facts relevant to the Pitt appeal are set out at length in the judgment of Lloyd LJ at paras 147 to 159, to which reference may be made for further detail.
+The claim was made by the personal representatives of Mr Derek Pitt, who died in 2007 aged 74.
+In 1990 he had suffered very serious head injuries in a road traffic accident, resulting in his mental incapacity.
+His wife, Mrs Patricia Pitt, was appointed as his receiver under the Mental Health Act 1983, and on his death she became one of his personal representatives, and the only beneficiary interested in his estate.
+Mr Pitts claim for damages for his injuries was compromised by a structured settlement, approved by the court, in the sum of 1.2m.
+Mrs Pitts solicitors sought advice from Frenkel Topping, a firm of financial advisers said to have specialist experience of structured settlements.
+They advised that the damages should be settled in a discretionary settlement, and this was done, with the authority of the Court of Protection, in 1994.
+The trust was referred to as the Derek Pitt Special Needs Trust (the SNT).
+Frenkel Topping gave their advice in a written report to Mrs Pitt (as receiver) which was made available to the Official Solicitor, who represented her husband in the application to the Court of Protection.
+The report referred to various advantages which the SNT was expected to secure, and it mentioned income tax and capital gains tax in its illustrative forecasts.
+But the report made no reference whatsoever to inheritance tax.
+The SNT could have been established without any immediate inheritance tax liability if (i) it had been an interest in possession trust or (ii) it had been a discretionary trust complying with section 89 of the Inheritance Tax Act 1984.
+In order to comply with section 89 its terms should have provided that at least half of the settled property applied during Mr Pitts lifetime was applied for his benefit.
+But the SNT as drafted and executed contained no such restriction.
+The consequence was an immediate liability to inheritance tax of the order of 100,000, with the prospect of a further tax charge on the tenth anniversary in 2004.
+The deputy judge (Mr Robert Englehart QC) observed that by 2010 the total tax, together with interest and penalties (if exacted) must have amounted to between 200,000 and 300,000.
+Mrs Pitt and her advisers became aware of the inheritance tax liabilities in 2003.
+In 2006 Mr Pitt (by a litigation friend) and the trustees of the SNT commenced proceedings against Frenkel Topping claiming damages for professional negligence.
+Mr Pitt died in 2007.
+After taking further advice his personal representatives (who were also two of the trustees of the SNT) commenced proceedings seeking to have the SNT set aside either under the Hastings Bass rule, or on the ground of mistake.
+The first defendant was the remaining trustee of the SNT (who took no part in the proceedings) and the second defendant was the Revenue (which actively opposed the application).
+Evidence was given in writing and there was no cross examination.
+In his judgment the deputy judge discussed the principal authorities on the Hastings Bass rule and observed (para 22) that three matters were not in dispute.
+First, it was agreed that the rule could apply without the need to identify a breach of duty on the part of the trustees or their advisers (so following Sieff v Fox rather than Barr).
+Second, it was unnecessary on the facts of the case to decide whether the application of the rule rendered a transaction void or voidable.
+Third, the rule would apply only if it was established that Mrs Pitt, if properly advised, would not have set up the SNT (rather than merely might not have done so).
+The principal arguments for the Revenue were that the rule did not in any case apply to a receiver (as opposed to a formally constituted trustee); that the rule applied only to a limited class of cases where the immediate purpose of the act in question was not achieved; and that tax consequences were never a sufficient basis for the application of the rule.
+The deputy judge rejected these submissions, holding that a receiver, as a fiduciary, was in essentially the same position as a trustee, and that the weight of the first instance authorities supported a wider version of the rule.
+He set aside the SNT on that ground.
+He indicated that he was not satisfied that there was any real mistake, as opposed to a failure to think about tax at all.
+Even if there was a mistake of any sort, it was only a mistake as to the consequences of the transaction, rather than its effect.
+Lloyd LJs judgment on the Hastings Bass rule
+I have already indicated my general agreement with Lloyd LJs judgment on the Hastings Bass issue.
+Paragraphs 1 to 28 contain an introduction and a summary of the facts of the two appeals.
+Paragraphs 29 to 67 consider Vestey, Abrahams and Hastings Bass.
+They come to the conclusion, with which I fully agree, that Buckley LJs statement of the supposed rule (para 24 above) was wider than the true principle of the actual decision in Hastings Bass.
+Paragraphs 68 to 91 consider more recent authorities, including Mettoy and Barr.
+All this is in a sense preliminary.
+Lloyd LJs essential reasoning and conclusions are at paragraphs 92 to 131.
+He then applied what he saw as the correct principle to the facts of Futter (paras 132 to 145) and Pitt (paras 146 to 163).
+He then dealt with the issue of mistake, raised by the respondents notice in Pitt (paras 164 to 223).
+The outcome was that both appeals were allowed (paras 224 to 226).
+Longmore LJ and Mummery LJ both gave short concurring judgments expressing full agreement.
+Mummery LJ added a clear summary of five salient points (paras 233 to 238).
+In the core of his judgment Lloyd LJ correctly spelled out the very
+important distinction between an error by trustees in going beyond the scope of a power (for which I shall use the traditional term excessive execution) and an error in failing to give proper consideration to relevant matters in making a decision which is within the scope of the relevant power (which I shall term inadequate deliberation).
+Hastings Bass and Mettoy were, as he rightly observed, cases in quite different categories.
+The former was a case of excessive execution and the latter might have been, but in the end was not, a case of inadequate deliberation.
+Lloyd LJ therefore withdrew his doubts about the conclusions that Lightman J had reached in Barr.
+Lloyd LJ then addressed the difficult question of how a fraudulent appointment (that is, an appointment ostensibly within the scope of a power, but made for an improper purpose) is to be fitted into the classification.
+The exercise of an equitable power may be fraudulent in this sense whether or not the person exercising it is a fiduciary.
+A well known example of trustees exercising a power for an improper purpose is provided by In Re Pauling [1964] Ch 303, in which a power ostensibly exercisable for the benefit of young adult beneficiaries was used to distribute trust capital to be frittered away on their improvident parents living expenses.
+There is Court of Appeal authority that a fraudulent appointment is void rather than voidable: Cloutte v Storey [1911] 1 Ch 18.
+In that case the appointee under an improper appointment had charged his equitable interest as security for a loan (and in doing so made two false statutory declarations as to the genuineness of the appointment).
+It was held that the lender had no security, even though it had no notice of the equitable fraud.
+It is an authority which has bedevilled discussion of the true nature of the Hastings Bass rule.
+Lightman J found the judgment of Farwell LJ problematic (Barr, para 31) and Lloyd LJ shared his reservations (para 98).
+So do I.
+It is hard to know what to make of Farwell LJs observations [1911] 1 Ch 18, 31: If an appointment is void at law, no title at law can be founded on it; but this is not so in equity: the mere fact that the appointment is void does not prevent a Court of Equity from having regard to it: eg, an appointment under a limited power to a stranger is void, but equity may cause effect to be given to it by means of the doctrine of election.
+The decision in Cloutte v Storey may have to be revisited one day.
+For present purposes it is sufficient to note that a fraudulent appointment (that is, one shown to have been made for a positively improper purpose) may need a separate pigeon hole somewhere between the categories of excessive execution and inadequate deliberation.
+In paragraphs 102 to 118, Lloyd LJ considered the duties of trustees in
+exercising their discretion, and in particular the relevance of tax considerations.
+He referred to some well known authorities including In re Badens Deed Trusts [1971] AC 424.
+That case was directly concerned with the correct test for certainty of objects of a discretionary trust (or trust power) but the speech of Lord Wilberforce contains, at pp 448 457, a general discussion of fiduciary discretions which has been very influential in the development of the law.
+This includes a passage at pp 456 457 as to the Courts intervention if trustees fail to exercise a trust power (that is, a discretion which it is their duty to exercise in some way).
+After referring to Lord Upjohns opinion Lord Wilberforce said: I would venture to amplify this by saying that the court, if called upon to execute the trust power, will do so in the manner best calculated to give effect to the settlors or testators intentions.
+It may do so by appointing new trustees, or by authorising or directing representative persons of the classes of beneficiaries to prepare a scheme of distribution, or even, should the proper basis of distribution appear by itself directing the trustees so to distribute.
+Lloyd LJ did not refer to that particular passage, but Warner J had done so in Mettoy [1990] 1 WLR 1587, 1617 1618, since in that case a decision as to the exercise of the power to augment benefits would have to be taken by someone.
+The passage serves as a reminder that where trustees have been in breach of duty by exercising a discretion with inadequate deliberation, setting aside their decision may not be the only course open to the court.
+In discussing what trustees should take into account, Lloyd LJ observed that
+the older cases tended to focus, not on what should be taken into account, but on what should not be taken into account.
+He instanced two cases.
+One was Klug v Klug [1918] 2 Ch 67, where one of the trustees strongly disapproved of her daughters choice of husband, and for that reason refused to concur with the Public Trustee in exercising a power of advancement in her favour.
+The court overrode her objection because she had not considered whether or not it would be for her daughters welfare that the advance should be made.
+She had therefore made no proper exercise of her discretion.
+The other case was In re Lofthouse (An Infant) (1885) 29 Ch D 921, in which income of a fund was available for the maintenance of a five year old girl whose mother had died very shortly after her birth.
+Her father had remarried and had three children by his second marriage.
+Bacon V C and the trustees (of the will of the girls maternal grandmother) evidently took very different views of how the father would spend the income if it was all paid to him for his eldest childs maintenance.
+The case was resolved by agreement in the Court of Appeal.
+The old cases as to the maintenance of children are rather exceptional, especially where the position was complicated by the child in question being a ward of court, as in In re Hodges (1878) 7 Ch D 754.
+Some judicial pronouncements in these cases should not be taken out of context.
+At para 115 Lloyd LJ reaffirmed the view that he had expressed in Sieff v Fox, para 86, that fiscal consequences may be relevant considerations which the trustees ought to take into account.
+I agree.
+In the private client world trusts are mostly established by and for wealthy families for whom taxes (whether on capital, capital gains or income) are a constant preoccupation.
+It might be said, especially by those who still regard family trusts as potentially beneficial to society as a whole, that the greater danger is not of trustees thinking too little about tax, but of tax and tax avoidance driving out consideration of other relevant matters.
+That is particularly true of offshore trusts.
+They are usually run by corporate trustees whose officers and staff (especially if they change with any frequency) may know relatively little about the settlor, and even less about the settlors family.
+The settlors wishes are always a material consideration in the exercise of fiduciary discretions.
+But if they were to displace all independent judgment on the part of the trustees themselves (or in the case of a corporate trustee, by its responsible officers and staff) the decision making process would be open to serious question.
+The Barr case (2003) Ch 409 illustrates the potential difficulties of unquestioning acceptance of the settlors supposed wishes.
+It is interesting, in this context, to compare the facts of some of the offshore cases with those of Turner v Turner [1984] Ch 100.
+That was a case in which a farmer made a discretionary settlement which he did not understand, and appointed as trustees family friends who never realised that they had any responsibility at all except to do as the settlor asked.
+They thought that it would be intruding into the settlors affairs if they were to read the documents that they were asked to sign (see at pp 106 108).
+Anyone familiar with the duties of trustees may find this hard to contemplate (as Mervyn Davies J did, at p 109).
+But it may be that some offshore trustees come close to seeing their essential duty as unquestioning obedience to the settlors wishes.
+The Barr case also illustrates another practical difficulty in the application of the Hastings Bass rule as it has developed.
+Lightman J was in my view right to decide that when the vitiating error is inadequate deliberation on relevant matters (rather than mistake) the inadequacy must be sufficiently serious as to amount to a breach of duty; and Lloyd LJ was right to change the contrary view which he had expressed in Sieff v Fox.
+It would set the bar too high (or too low, depending on the spectators point of view) to apply the Hastings Bass rule whenever trustees fall short of the highest standards of mature deliberation and judgment.
+Where, as in Barr, the trustee is a body corporate acting as a sort of in house facility provided by a firm of professional advisers, it may be hard to decide whether the separate juristic personality of the trustee insulates it from responsibility for the errors of individual professionals within the firm.
+A rather similar problem arose on the facts of Futter.
+It is a striking feature of the development of the Hastings Bass rule that it has led to trustees asserting and relying on their own failings, or those of their advisers, in seeking the assistance of the court.
+This was pointed out in no uncertain terms by Norris J in his first instance judgment in Futter, quoted in para 3 above.
+There may be cases in which there is for practical purposes no other suitable person to bring the matter before the court, but I agree with Lloyd LJs observation (para 130) that in general it would be inappropriate for trustees to take the initiative in commencing proceedings of this nature.
+They should not regard them as uncontroversial proceedings in which they can confidently expect to recover their costs out of the trust fund.
+Lloyd LJ stated the correct principle, as he saw it, at para 127: It seems to me that the principled and correct approach to these cases is, first, that the trustees act is not void, but that it may be voidable.
+It will be voidable if, and only if, it can be shown to have been done in breach of fiduciary duty on the part of the trustees.
+If it is voidable, then it may be capable of being set aside at the suit of a beneficiary, but this would be subject to equitable defences and to the courts discretion.
+The trustees duty to take relevant matters into account is a fiduciary duty, so an act done as a result of a breach of that duty is voidable.
+Fiscal considerations will often be among the relevant matters which ought to be taken into account.
+However, if the trustees seek advice (in general or in specific terms) from apparently competent advisers as to the implications of the course they are taking, and follow the advice so obtained, then, in the absence of any other basis for a challenge, I would hold that the trustees are not in breach of their fiduciary duty for failure to have regard to relevant matters if the failure occurs because it turns out that the advice given to them was materially wrong.
+Accordingly, in such a case I would not regard the trustees act, done in reliance on that advice, as being vitiated by the error and therefore voidable.
+The requirement for breach of duty
+In this court Mr Robert Ham QC undertook the main burden of the argument for the appellants on the Hastings Bass rule.
+Mr Christopher Nugee QC adopted Mr Hams submissions, and added some of his own, but concentrated his argument on the issue of mistake.
+Mr Hams submissions centred on whether the courts jurisdiction under the Hastings Bass rule is exercisable only if there is a breach of fiduciary duty on the part of the trustees (or other relevant fiduciary).
+He argued that this is a novel requirement which leads to arbitrary and unfair distinctions, especially in cases where incorrect advice on tax has been given by professional advisers who may or may not themselves be trustees.
+Mr Ham also had subsidiary but important arguments about the attribution to trustees of fault on the part of their advisers, and about the identification of relevant considerations for the purposes of the rule.
+Mr Ham contended that the supposed need for establishing a breach of fiduciary duty, before the Hastings Bass rule can come into play, was a novel requirement introduced in 2003 by Lightman J in his judgment in Barr.
+Reference to paras 16 to 20 of his judgment shows that Lightman J was relying on a number of earlier authorities, including the decision of the Court of Appeal in Edge [2000] Ch 602, 627 628, and the decision of Warner J in Mettoy [1990] 1 WLR 1587, 1625: In a case such as this, where it is claimed that the rule in Hastings Bass applies, three questions arise: (1) What were the trustees under a duty to consider? (2) Did they fail to consider it? (3) If so, what would they have done if they had considered it?
+In my view Lightman J was right to hold that for the rule to apply the inadequate deliberation on the part of the trustees must be sufficiently serious as to amount to a breach of fiduciary duty.
+Breach of duty is essential (in the full sense of that word) because it is only a breach of duty on the part of the trustees that entitles the court to intervene (apart from the special case of powers of maintenance of minor beneficiaries, where the court was in the past more interventionist: see para 64 above).
+It is not enough to show that the trustees deliberations have fallen short of the highest possible standards, or that the court would, on a surrender of discretion by the trustees, have acted in a different way.
+Apart from exceptional circumstances (such as an impasse reached by honest and reasonable trustees) only breach of fiduciary duty justifies judicial intervention.
+Mr Ham relied heavily on the decision of the Court of Appeal in Kerr v British Leyland (Staff) Trustees Ltd (1986) [2001] WTLR 1071.
+In that case Mr Kerr, a member of the British Leyland staff pension scheme, suffered from angina and claimed a disability benefit payable on permanent disability (defined as so that no further employment of any kind is possible).
+The scheme had a group policy with Legal & General, which obtained separate medical advice and indicated that it would reject the claim.
+The corporate trustee of the pension scheme decided to follow Legal & General in rejecting the claim.
+Mr Kerr took proceedings challenging the trustees decision, and was successful at first instance.
+The Court of Appeal dismissed the corporate trustees appeal.
+In doing so Fox LJ (with whom Mustill LJ and Caulfield J agreed) made plain that the corporate trustees board was not at fault.
+There had been a failure of communication.
+As to the judges declaration that Mr Kerr was entitled to a pension, Fox LJ stated (p 1080): I do not think he was entitled to do that.
+The decision whether to accept the claim is one for the trustee and not for the court.
+It seems to me that, in the present case, the decision of the trustee was simply ineffective since the board did not carry out their duty to give a properly informed consideration to the claim.
+That however does not entitle the Court to substitute its own view of the claim for that of the trustee.
+I would, therefore, discharge the order of the judge and substitute an order that the decision of the trustees on 28 June 1978 to reject Mr Kerrs claim was of no effect and that the trustee should reconsider the claim.
+The Kerr case is of interest since (though not reported for 15 years) it is an early example, antedating Mettoy, of the application of something like the Hastings Bass rule.
+But I think it is important to note that under the British Leyland scheme the corporate trustee did not have any real discretion about disability benefit.
+It had to exercise a judgment on an issue of fact (permanent disability from any employment).
+That is an issue on which the court would be much more ready to intervene if the trustee had failed to grasp the real facts.
+It is an intermediate situation which is arguably closer to a mistaken judgment on an issue of fact than to the defective exercise of a discretion.
+Kerr may be compared with Mihlenstedt v Barclays Bank International Ltd [1989] IRLR 522.
+That was a comparable case except that there was a preliminary issue of construction as to whether the relevant rule (which began Early retirement due to ill health will be permitted only when . ) imported a wider discretion.
+The Court of Appeal decided that the language of the rule was that of obligation and entitlement, and that the judge had erred in supposing that there was a wider discretion.
+But on the facts the majority of the Court of Appeal held that the trustee had not formed its opinion on an erroneous basis.
+Mr Hams fallback position was that if a breach of duty was an essential requirement, there could be a breach without fault on the part of any individual trustee being established.
+This general argument was developed in several different directions.
+I would identify these (though there was some overlap) as (1) strict liability (2) agency (3) resulting absurdity and (4) a special meaning of relevant.
+These points are considered below, in turn.
+Mr Nugee, in supporting Mr Hams position, attached most weight to the argument on strict liability.
+It is undoubtedly correct that trustees may be liable for breach of trust even though they have acted in accordance with skilled professional advice.
+Such advice cannot protect trustees from potential liability for a loss to the trust fund resulting from a decision that is, judged objectively, beyond the trustees powers and detrimental to the trust (though professional advice may lead to their obtaining relief under section 61 of the Trustee Act 1925).
+An example mentioned in argument is Dunn v Flood (1885) 28 Ch D 586, in which trustees had sold by auction 73 plots of freehold land at Reading, subject to special conditions which the court held to be severely depreciatory (as Fry LJ put it at p594, eminently calculated to frighten away purchasers).
+The Court of Appeal, upholding North J, refused to force a doubtful title on a reluctant purchaser.
+The fact that the trustees had consulted respectable solicitors was no excuse.
+It was not a reasonable exercise of discretion (Baggallay LJ and Bowen LJ at p592; Fry LJ at pp593 594).
+But the trustees breach of duty was not in the manner of their decision making (as to which we know nothing other than that they consulted respectable solicitors) but the loss to the trust property that their unreasonable decision appeared to have caused.
+Further examples are provided by the decision of the Court of Appeal in Perrins v Bellamy [1899] 1 Ch 797 and that of the Privy Council, on appeal from the Supreme Court of Victoria, in National Trustees Co of Australasia Ltd v General Finance Co of Australasia Ltd [1905] AC 373.
+These cases, discussed by Lloyd LJ at para 124 of his judgment, were both examples of action taken by trustees on professional advice which was unequivocally incorrect: one a sale of leaseholds when the trustees had no power of sale; the other a distribution (resulting from some extraordinary slip by solicitors of high standing) of a deceased beneficiarys vested share to persons who were not entitled to it under the intestacy law of Victoria in force at the beneficiarys death.
+As Lloyd LJ observed, the issue in these cases: is altogether different, as it seems to me, from the question whether, if trustees take advice properly, and act on that advice in a matter which is within their powers, the fact that the advice has misled them as to the true position in a relevant respect means that they acted in breach of fiduciary duty.
+I respectfully agree.
+Trustees may be liable, even if they have obtained apparently competent professional advice, if they act outside the scope of their powers (excessive execution), or contrary to the general law (for example, in the Australian case, the law regulating entitlement on intestacy).
+That can be seen as a form of strict liability in that it is imposed regardless of personal fault.
+Trustees may also be in breach of duty in failing to give proper consideration to the exercise of their discretionary powers, and a failure to take professional advice may amount to, or contribute to, a flawed decision making process.
+But it would be contrary to principle and authority to impose a form of strict liability on trustees who conscientiously obtain and follow, in making a decision which is within the scope of their powers, apparently competent professional advice which turns out to be wrong.
+Such a result cannot be achieved by the route of attributing any fault on the part of professional advisers to the trustees as their supposed principals.
+Solicitors can and do act as agents in some clearly defined functions, usually of a ministerial nature, such as the receipt and transmission of clients funds, and the giving and taking of undertakings on behalf of clients.
+But they do not and may not act as agents in the exercise of fiduciary discretions.
+As I said in Scott [1998] 2 All ER 705, 717: It is however for advisers to advise and for trustees to decide: trustees may not (except insofar as they are authorised to do so) delegate the exercise of their discretions, even to experts.
+Mr Ham relied on some observations of Warner J in Mettoy [1990] 1 WLR 1587, 1625 1626: But the question is not in my view to what extent trustees may in practice have to rely on professional advice.
+The duty to take into account all material considerations is that of the trustees.
+The extent of that duty is not affected by the amount or quality of the professional advice they may seek or obtain.
+In In Re Hastings Bass [1975] Ch 25 it was not relevant to what extent the trustees themselves were able to form an opinion on the effect of the rule against perpetuities.
+This passage was noted by Lloyd LJ in his discussion of the cases (para 71) but receives only a passing mention in para 124, the part of his judgment which discusses the significance of professional advice.
+I have difficulty with these observations of Warner J.
+They occur in the part of his judgment dealing with the first of the three questions that he had posed (para 72 above) and probably they must be read in that context.
+Moreover the last sentence at p1626 A B suggests that Warner J was not clearly distinguishing the category of excessive execution in Hastings Bass itself from the category of inadequate deliberation relevant to the issue before him.
+If his remarks cannot be limited to their context then I would say that Warner J was wrong in disregarding the amount or quality of professional advice obtained by trustees, when the question relates to a decision within the scope of the trustees powers.
+Mr Ham submitted that a refusal to attribute to trustees fault on the part of their advisers or agents leads to counter intuitive and arbitrary distinctions.
+He instanced an error in a letter setting out the settlors wishes (a variation of the facts in Barr).
+On that particular example, such an error might be a sufficient ground for a voluntary disposition to be set aside on the ground of mistake, regardless of where responsibility for the error lay.
+But I would accept that there have been, and no doubt will be in the future, cases in which small variations in the facts lead to surprisingly different outcomes.
+That is inevitable in an area where the law has to balance the need to protect beneficiaries against aberrant conduct by trustees (the policy behind the Hastings Bass rule) with the competing interests of legal certainty, and of not imposing too stringent a test in judging trustees decision making.
+There is indeed a striking contrast between the courts conclusions as to the position of Mr Ward Thompson in Barr and that of Mr Cutbill in Futter.
+Mr Ward Thompsons position was considered in detail by Lightman J [2003] Ch 409, para 27: He was the one point of contact between on the one side the settlor and on the other side C & L, C & L Isle of Man, the trustee and the protector.
+For all practical purposes he was the emanation and only representative of C & L, C & L Isle of Man, the trustee and the protector in all their dealings with the settlor.
+C & L was through itself and its associated firm, C & L Isle of Man and its vehicles, the trustee and the protector, providing the settlor with a total corporate and trust holding service.
+As is common ground the solicitors who drafted the appointment were acting on behalf of the trustee: Mr Ward Thompson in giving instructions for its preparation in the circumstances can only have done so acting as agent for the trustee.
+These findings (based, it appears, on witness statements not tested by cross examination) show that it was an unusual situation in which Mr Ward Thompson had an exceptionally important role.
+The judges conclusion was reinforced by another passage in para 27: I should add that my view is reinforced by the consideration that any ambiguity in the structure and arrangements ought to be resolved in favour of the settlor: (1) the C & L side were responsible for the structure and arrangements; (2) Mr Ward Thompson has declined to assist the court; and (3) the trustee perhaps surprisingly failed to seek from the settlor an expression of his wishes in documentary form or provide him with a copy of the proposed appointment before it was executed.
+In short, on the material before me, on the third issue I am satisfied that the trustee failed in its fiduciary duty to ascertain the true wishes of the settlor to which the appointment was intended to give effect and accordingly the rule is brought into play.
+Cases of this sort will call for detailed fact finding by the judge, and sometimes no doubt for cross examination.
+Barr may be contrasted with Abacus Trust Company (Isle of Man) Ltd v NSPCC [2001] STC 1344, in which an artificial tax avoidance scheme failed because a deed of appointment was executed on 3 April 1998, contrary to the clear advice of leading counsel that it should not be executed until after the end of the 1997 98 financial year.
+On Wednesday, 1 April 1998 the appointment was faxed to the corporate trustee in the Isle of Man by an English solicitor with the suggestion that it should be executed on Friday (naturally taken as 3 April).
+But a director of the corporate trustee had attended the consultation with leading counsel, and had received a note of it, which he did not refer to when he received the fax.
+Patten J applied the Hastings Bass rule without finding it necessary to reach any clear conclusion about breach of duty, which was not then recognised as an essential requirement.
+In Futter Mr Cutbill, a partner in a London firm of solicitors, was involved both as a trustee and as a solicitor advising the trustees.
+The facts as to his involvement were found at first instance by Norris J [2010] STC 982.
+It so happened, as already mentioned, that the judgment of Mr Engelhart QC in Pitt was given on 18 January 2010, the first day of the hearing in Futter.
+In Pitt it had been common ground ([2010] 1 WLR 1199, para 22) that there was no need to identify a breach of duty by the trustees.
+It is not clear from Norris Js judgment whether the same incorrect concession was made and accepted before him.
+But Norris J seems to have accepted Sieff v Fox as the leading authority from which to obtain guidance, and Barr received only a passing mention (on the void or voidable? issue) in his judgment.
+Norris J did not therefore make any clear finding about breach of fiduciary duty.
+He simply recorded and accepted Mr Cutbills written evidence, which included the statement that [Mr Futter] and I failed to pay any regard to the provisions of section 2(4) [TCGA] at the time, and therefore failed to consider the full tax implications.
+The Court of Appeal was therefore in as good a position as Norris J to make a finding about breach of duty on the part of the trustees.
+This Court has before it all the written evidence and exhibits that were before the judge, and in the absence of concurrent findings below it is also in a position to make findings, if necessary, on that issue.
+I will return to it below when dealing with the disposal of the Futter appeal.
+Finally, on this part of the case, there is the submission that the trustees duty to take account of relevant considerations is to be interpreted as a duty to act on advice only if it is correct in effect, a duty to come to the right conclusion in every case.
+I have left this submission until the end because it is to my mind truly a last ditch argument.
+It involves taking the principle of strict liability for ultra vires acts (paras 81 to 84 above) out of context and applying it in a different area, so as to require trustees to show infallibility of judgment.
+Such a requirement is quite unrealistic.
+It would tip the balance much too far in making beneficiaries a special favoured class, at the expense of both legal certainty and fairness.
+It is contrary to the well known saying of Lord Truro LC in In re Beloved Wilkess Charity (1851) 3 Mac & G 440, 448: . that in such cases as I have mentioned it is to the discretion of the trustees that the execution of the trust is confided, that discretion being exercised with an entire absence of indirect motive, with honesty of intention, and with a fair consideration of the subject.
+The duty of supervision on the part of this court will thus be confined to the question of the honesty, integrity, and fairness with which the deliberation has been conducted, and will not be extended to the accuracy of the conclusion arrived at, except in particular cases.
+The trustees duty does not extend to being right (the accuracy of the conclusion arrived at) on every occasion.
+The particular cases that the Lord Chancellor had in mind may have included cases concerned with the maintenance of minor beneficiaries.
+They may also have included cases (such as Kerr v British Leyland (Staff) Trustees Ltd) in which the trustees have to make a particular factual judgment, rather than exercise a wide discretion.
+As a first footnote on the topic of fault, I would mention that in para 128 of his judgment, Lloyd LJ observed that a claim by beneficiaries against trustees may often be precluded by an exoneration clause in the trust instrument.
+Mr Philip Jones QC (for the Revenue) disputed this, pointing out that even if a trustee is exonerated from liability to pay equitable compensation, he is still liable to injunctive relief to prevent a threatened breach of trust, and personal and proprietary remedies may be available against persons who receive assets distributed in breach of trust.
+Moreover an exoneration clause does not protect a trustee against removal from office by order of the court.
+The Futter No 3 and No 5 settlements contain exoneration clauses in conventional terms, stating that in the professed execution of the trusts and powers hereof no trustee shall be liable for a breach of trust arising from a mistake or omission made by him in good faith.
+I would not treat that clause as ousting the application of the Hastings Bass rule, if it were otherwise applicable.
+As a second footnote, there was some discussion in the course of argument as to the significance, in situations of this sort, of a possible claim for damages against professional advisers for financial loss caused by incorrect advice (or incorrect implementation of instructions).
+Mr Nugee referred to Walker v Geo H Medlicott & Son [1999] 1 WLR 727, in which a strong Court of Appeal dismissed on two grounds a claim for damages for professional negligence in preparing a will.
+The second ground was that the aggrieved claimants proper course was to mitigate his damage by seeking rectification of the will.
+That decision may reflect the courts view of the particular facts of the case, and the feeling that if the drafting of the will had gone wrong other beneficiaries under it should not obtain adventitious benefits.
+In principle the possibility that trustees may have a claim for damages should have no effect on the operation of the Hastings Bass rule.
+In practice it will be rare for trustees to have so strong a claim that they can be confident of obtaining a full indemnity for their beneficiaries loss and their own costs.
+In the Pitt case this court was told that the claim against Frenkel Topping has been settled.
+Had it gone to trial the claim, even if successful in establishing duty and breach, might have faced difficulties over causation, since Mrs Pitt executed the SNT under the authority of an order of the Court of Protection, which had considered its terms.
+That courts apparent lack of awareness of the importance of section 89 of the Inheritance Act 1984 is one of the most remarkable features of the whole sorry story.
+Would or Might?
+In his statement of the correct principle (para 127 of the judgment, set out in para 70 above) Lloyd LJ did not provide an answer to the would or might? debate.
+That was not, I think, an oversight.
+The Hastings Bass rule is centred on the failure of trustees to perform their decision making function.
+It is that which founds the courts jurisdiction to intervene if it thinks fit to do so.
+Whether the court will intervene is another matter.
+Buckley LJs statement of principle in Hastings Bass (para 24 above) cannot be regarded as clear and definitive guidance, since Buckley LJ was considering a different matter the validity of a severed part of a disposition, the other part of which was void for perpetuity.
+In Mettoy itself the trustees had wholly failed to consider (or even to be aware of) an important change in the new rules (affecting the destination of surplus in a winding up of the scheme), at a time when winding up was a real possibility.
+But Warner J (applying Buckley LJs would not formulation) declined to set aside the adoption of the new rules, because the power over surplus remained a fiduciary power.
+It has been suggested (partly in order to accommodate the decision of the Court of Appeal in Stannard, para 34 above) that would not is the appropriate test for family trusts, but that a different might not test (stricter from the point of view of the trustees, less demanding for the beneficiaries) is appropriate for pensions trusts, since members of a pension scheme are not volunteers, but have contractual rights.
+That is an ingenious suggestion, and in practice the court may sometimes think it right to proceed in that way.
+But as a matter of principle there must be a high degree of flexibility in the range of the courts possible responses.
+It is common ground that relief can be granted on terms.
+In some cases the court may wish to know what further disposition the trustees would be minded to make, if relief is granted, and to require an undertaking to that effect (see In re Badens Deed Trusts [1971] AC 424, referred to in para 63 above).
+To lay down a rigid rule of either would not or might not would inhibit the court in seeking the best practical solution in the application of the Hastings Bass rule in a variety of different factual situations.
+Void or Voidable?
+Counsel on both sides readily admitted that they had hesitated over this point, but in the end they were all in agreement that Lloyd LJ was right in holding (para 99) that, if an exercise by trustees of a discretionary power is within the terms of the power, but the trustees have in some way breached their duties in respect of that exercise, then (unless it is a case of a fraud on the power) the trustees act is not void but it may be voidable at the instance of a beneficiary who is adversely affected.
+In my judgment that is plainly right, and in the absence of further argument on the point it is unnecessary to add much to it.
+The issue has been clouded, in the past, by the difficult case of Cloutte v Storey, a case on appointments that are fraudulent in the equitable sense, that is made for a positively improper purpose.
+Here we are concerned not with equitable fraud, nor with dispositions which exceed the scope of the power, or infringe the general law (such as the rule against perpetuity).
+We are in an area in which the court has an equitable jurisdiction of a discretionary nature, although the discretion is not at large, but must be exercised in accordance with well settled principles.
+The working out of these principles will raise problems which must be dealt with on a case by case basis.
+The mistake claim in Pitt involves a problem of that sort.
+But it is unnecessary and inappropriate to prolong what is already a very long judgment by further discussion of problems that are not now before this court.
+Disposal of the Hastings Bass issues
+In Futter the essential issue was whether the trustees of the No 3 and No 5 settlements, in deciding to take the steps which they took in March and April 2008, failed in their duty to take relevant considerations into account.
+Capital gains tax was a relevant consideration.
+Indeed, it is fairly plain that it was the paramount consideration, and the trustees thought about it a great deal.
+But the tax advice which they received and acted on was wrong, because an amendment to section 2(4) of TCGA had been overlooked.
+As Lloyd LJ put it succinctly (para 138): They did not overlook the need to think about CGT.
+They were given advice on the right point.
+The problem was that the advice was wrong.
+The only complication was that Mr Cutbill (the solicitor trustee) was a member of both teams: the solicitors giving the erroneous advice, and the trustees receiving and acting on it.
+I agree with the Court of Appeal that it would be artificial to distinguish between the two trustees, who acted together in making and effectuating their decisions.
+I would if necessary go further and hold that the documentary evidence indicates that most if not all of the technical tax advice given by his firm came not from Mr Cutbill but from the assistant solicitor who was working with him, from January 2008, in a review of a number of different Futter family settlements.
+Until 27 March 2008 it was supposed, wrongly, that the No 3 settlements stockpiled gains were relatively small, and the fact that they amounted to about 188,000 led to a last minute change of plan.
+On 28 March 2008 there was a telephone conversation between the assistant solicitor and Mr Bunce, Mr Futters accountant, at which, without reference to Mr Cutbill, she definitely confirmed that Mr Futters personal losses could be set off against the section 87 gains.
+Mr Cutbill seems to have been, very properly, reluctant to put the blame on a junior member of his firm, and of course his firm must take legal responsibility for any actionable mistake by any of its fee earners.
+But the documents in exhibit CDC 1 to Mr Cutbills witness statement tend to confirm that he should not, as a trustee of the No 3 and No 5 settlements, be treated as having been personally in breach of fiduciary duty.
+In Pitt the position was even clearer.
+As her husbands receiver under the Mental Health Act 1983 Mrs Pitt was in a fiduciary position but there is no suggestion that she had any professional qualifications.
+She devoted herself, alternating with a carer, to looking after her disabled husband.
+As anyone in that position would, she took professional advice from solicitors and specialist consultants.
+After hearing from her legal advisers and the Official Solicitor the Court of Protection made an order on 1 September 1994 authorising (not directing) her to execute the SNT and she acted on that authority on 1 November 1994 (the date in para 161 of Lloyd LJs judgment seems to be an error; compare para 151).
+She had taken supposedly expert advice and followed it.
+There is no reason to hold that she personally failed in the exercise of her fiduciary duty.
+Unfortunately the advice was unsound.
+as it turns on the Hastings Bass rule.
+I would therefore dismiss the appeal in Futter, and the appeal in Pitt so far RESCISSION ON THE GROUND OF MISTAKE
+Mrs Ogilvies litigation
+In this part of his judgment Lloyd LJ began with the litigation conducted by Mrs Ogilvie at the end of the 19th century.
+Mrs Ogilvie was a very rich widow who had in 1887 executed two deeds settling large funds for charitable purposes.
+She was described by Byrne J (in the transcript included in the appendix printed for the eventual appeal to the House of Lords, pp 862 863) as undoubtedly a good woman of business, shrewd, clever and intelligent, having been accustomed to assist her husband in business matters.
+She had a proper sense of the responsibilities of great wealth, she was charitable and munificent.
+She had strong views on certain subjects, was impatient of any attempt to thwart or control her, and though perhaps at times inclined to be somewhat changeable, she was firm and decided as to her course of action when she had made up her mind and laid down what she terms her law in respect to any matter.
+Seven years later she brought an action to have the deeds set aside.
+She relied on grounds summarized by Byrne J (p 862) as follows: (1) That she had not preserved to her the absolute power of disposing of the capital, including the land, as she thought fit during her life, and that notwithstanding express instructions to the contrary. (2) That she had not a similar absolute power in respect to income. (3) That she is liable to interference by the Charity Commissioners and by her own Trustees, and to be called upon by them to account for her administration of the income and that notwithstanding express instructions to the contrary. (4) That she has not the power to apply moneys originally dedicated to London institutions to Suffolk institutions. (5) That she was not fully and properly advised and that she did not fairly understand the nature and effect of the documents she executed.
+These grounds were fully explored in the pleadings, in interrogatories, and in cross examination at the nine day trial.
+Originally there was an alternative claim for rectification but her counsel did not rely on that claim, although it seems (pp 903 905) that the Attorney General (who appeared in person at every stage of the proceedings) made an open offer for the case to be disposed of uncontentiously on that basis.
+Byrne J gave a judgment, over 50 pages long in the transcript, in which he said (p 901), The case is entirely wanting in any of those elements of fraud, undue influence, concealments of facts from the donor, want of separate and independent advice, surprise or pressure, which, or some of which, are commonly to be met with in cases of attempts to set aside or rectify voluntary instruments.
+The judge rejected almost entirely the criticisms that Mrs Ogilvie directed towards her legal advisers: The utmost that could be suggested against Mr Smith is that he misunderstood his instructions, or that he was guilty of error of judgment in not having with more insistence determined to see his client personally, and against Mr Smith, Mr Harding, Mr Sutherland, and their counsel, that possibly they allowed their natural and perfectly unselfish wish to see the charitable scheme carried through to permit them to neglect informing the plaintiff of every trouble and difficulty of detail which arose in the matter. (Mr Smith was the London solicitor of Mrs Ogilvie, who lived in Suffolk; Mr Harding was a respected member of the Society of Friends, who gave her advice; and Mr Sutherland was her late husbands confidential clerk.) Her action was dismissed.
+She appealed to the Court of Appeal, where in view of the trial judges clear findings the argument seems to have been more closely focused as mistake.
+Giving the judgment of the Court of Appeal Lindley LJ said (Ogilvie v Littleboy (1897) 13 TLR 399, 400): Gifts cannot be revoked, nor can deeds of gift be set aside, simply because the donors wish that they had not made them and would like to have back the property given.
+Where there is no fraud, no undue influence, no fiduciary relation between donor and donee, no mistake induced by those who derive any benefit by it, a gift, whether by mere delivery or by deed, is binding on the donor .
+In the absence of all circumstances of suspicion a donor can only obtain back property which he has given away by showing that he was under some mistake of so serious a character as to render it unjust on the part of the donee to retain the property given to him.
+Mrs Ogilvies grounds of complaint seem to have been revised a little.
+The alleged mistakes as to the application of capital or income for non charitable purposes, and as to the jurisdiction of the Charity Commissioners, could not be sustained on the judges findings.
+As to the fourth ground (relating to sales of land) the Court of Appeal held that the mistake, such as it was, cannot be regarded as so material as to affect the validity of the deeds.
+The fifth ground had been reformulated as a failure by her advisers to warn her that members of the Society of Friends might be unwilling to become trustees.
+As to this Lindley LJ observed (p 401): But, assuming the danger to be real, assuming that it was an error of judgment not to call the plaintiffs attention to it, is such an omission enough to entitle her to have the deeds set aside? We are not aware of any legal principle which goes this length or anything like it.
+The complaint is not that her intentions have not been carried out; it is that a possible danger known to her advisers was not pointed out to her.
+So the appeal was dismissed, as was a further appeal to the House of Lords (Ogilvie v Allen (1899) 15 TLR 294).
+Lord Halsbury LC said (p 295): The appellant, a lady, was desirous of establishing certain charities, and she now contends that, though she did intend to devote her money to charity, certain specific intentions as to management, control, independence of control, and the like were such essential and important considerations to her mind that in these respects she was misled, and now seeks to get rid of the effect of her deeds upon that allegation.
+Such questions, doubtless, may arise under circumstances where misunderstanding on both sides may render it unjust to the giver that the gift should be retained.
+It appears to me that there are no such circumstances here.
+I entirely concur with the judgment delivered by the present Master of the Rolls .
+So did Lord Macnaghten, who said that Lindley LJs judgment deals with the case so fully and so satisfactorily that there is nothing more to be added.
+Lord Morris concurred.
+Lloyd LJ reviewed and discussed other 19th century and modern authorities, including the first instance decisions in Gibbon v Mitchell [1990] 1 WLR 1304 and In re Griffiths, decd [2009] Ch 162.
+He questioned the result in the latter case.
+The framework of his conclusion (paras 210 and 211) was that for the exercise of the equitable jurisdiction to set aside a voluntary disposition there must be (1) a mistake, which is (2) of the relevant type and (3) sufficiently serious to satisfy the Ogilvie v Littleboy test.
+That is a convenient framework against which to consider the authorities, although there is obviously some overlap between the three heads.
+In general a mistake as to the essential nature of a transaction is likely to be more serious than a mistake as to its consequences.
+What is a mistake?
+For present purposes a mistake must be distinguished from mere ignorance or inadvertence, and also from what scholars in the field of unjust enrichment refer to as misprediction (see Seah, Mispredictions, Mistakes and the Law of Unjust Enrichment [2007] RLR 93; the expression may have first received judicial currency in Dextra Bank & Trust Co Ltd v Bank of Jamaica [2002] 1 All ER (Comm) 193).
+These distinctions are reasonably clear in a general sort of way, but they tend to get blurred when it comes to facts of particular cases.
+The editors of Goff and Jones, The Law of Unjust Enrichment, 8th ed. (2011) para 9 11 comment that the distinction between mistake and misprediction can lead to some uncomfortably fine distinctions, and the same is true of the distinction between mistake and ignorance.
+Forgetfulness, inadvertence or ignorance is not, as such, a mistake, but it can lead to a false belief or assumption which the law will recognise as a mistake.
+The Court of Appeal of Victoria has held that mistake certainly comprehends a mistaken belief arising from inadvertence to or ignorance of a specific fact or legal requirement: Ormiston JA in Hookway v Racing Victoria Ltd [2005] VSCA 310, (2005) 13 VR 444, 450.
+That case was on the borderline between voluntary disposition and contract.
+It concerned prize money for a horse race which was paid to the wrong owner because the official in charge of prize money was ignorant of a recent change in the rules of racing (permitting an appeal against disqualification after a drugs test).
+He made a mistake as to the real winner.
+The best known English authority on this point is Lady Hood of Avalon v Mackinnon [1909] 1 Ch 476.
+Under a settlement Lord and Lady Hood had a joint power of appointment, and later Lady Hood as the survivor had a sole power of appointment, in favour of the children and remoter issue of their marriage.
+They had two daughters.
+In 1888 half the trust fund had been appointed (subject to the prior life interests of Lord and Lady Hood) to their elder daughter on her marriage, and had been resettled by her.
+In 1902 and 1904, after Lord Hoods death, Lady Hood appointed a total of 8,600 to her younger daughter.
+Then, wishing to achieve equality, as she thought, between her daughters, and entirely forgetting the 1888 appointment, she appointed a further 8,600 to her elder daughter (so inevitably producing inequality, unless the appointment were set aside).
+The elder daughter did not oppose Lady Hoods action for rescission of the last appointment, but the trustees of the resettlement (which contained an after acquired property covenant) did oppose it.
+Eve J granted relief, stating (pp 483 484): Having regard to the facts which I have stated, I must assume that Lady Hood, intending only to bring about equality between her daughters, was labouring under a mistake when she thought that equality would be brought about by the execution of the deed appointing 8,600 to her elder daughter.
+It was obviously a mistake, because the effect of the execution of that deed was to bring about that which Lady Hood never intended and never contemplated.
+In his judgment Eve J referred at length to the decision of the Court of Appeal in Barrow v Isaacs & Son [1891] 1 QB 417.
+In that case the Court of Appeal declined to grant relief, on the ground of mistake, from forfeiture of a lease for breach of a covenant against underletting.
+The solicitors acting for a respectable tenant had overlooked the covenant and the premises had been sublet to a respectable sub tenant.
+Both Lord Esher MR and Kay LJ commented that there was no legal definition of mistake.
+Lord Esher MR said (at pp 420 421) that the head tenant had had a mere passive state of mind: I should say that mere forgetfulness is not mistake at all in ordinary language.
+I cannot find any decision in Courts of Equity which has ever stated that mere forgetfulness is mistake against which equity would relieve.
+But Kay LJ (with whom Lopes LJ agreed) seems to have taken the view that there was a mistake which equity had power to relieve, although in the circumstances of the case the court declined to grant relief.
+The power to relieve would, it seems, have been based on the conscious belief or tacit assumption that the underletting was lawful.
+The fullest academic treatment of this topic is in Goff & Jones at paras 9 32 to 9 42.
+The editors distinguish between incorrect conscious beliefs, incorrect tacit assumptions, and true cases of mere causative ignorance (causative in the sense that but for his ignorance the person in question would not have acted as he did).
+The deputy judges first instance decision in Pitt [2010] 1 WLR 1190, para 50 is suggested as an example of mere causative ignorance: If someone does not apply his mind to a point at all, it is difficult to say that there has been some real mistake about it.
+The Court of Appeal adopted a different view of the facts, treating the case (para 216) as one of an incorrect conscious belief on the part of Mrs Pitt that the SNT had no adverse tax consequences.
+The editors of Goff & Jones are, on balance, in favour of treating mere causative ignorance as sufficient.
+They comment (at para 9 41, in answering a floodgates objection): . denying relief for mere causative ignorance produces a boundary line which may be difficult to draw in practice, and which is susceptible to judicial manipulation, according to whether it is felt that relief should be afforded with the courts finding or declining to find incorrect conscious beliefs or tacit assumptions according to the courts perception of the merits of the claim.
+It may indeed be difficult to draw the line between mere causative ignorance and a mistaken conscious belief or a mistaken tacit assumption.
+I would hold that mere ignorance, even if causative, is insufficient, but that the court, in carrying out its task of finding the facts, should not shrink from drawing the inference of conscious belief or tacit assumption when there is evidence to support such an inference.
+I shall return (paras 127 and 128 below) to the suggestion that this may involve judicial manipulation.
+A misprediction relates to some possible future event, whereas a legally significant mistake normally relates to some past or present matter of fact or law.
+But here too the distinction may not be clear on the facts of a particular case.
+The issue which divided the House of Lords in Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 was whether (as Lord Hoffmann put it at p398) the correct view was that, a person who pays in accordance with what was then a settled view of the law has not made a mistake and that his state of mind could be better described as a failure to predict the outcome of some future event (sc a decision of this House) than a mistake about the existing state of the law.
+There is another interesting discussion of this point in the judgments given in the Court of Appeal in Brennan v Bolt Burdon [2005] QB 303.
+A problem about the boundary between mistake and misprediction arose in In re Griffiths, decd [2009] Ch 162, a decision of Lewison J. Like Sieff v Fox and some other cases on the Hastings Bass rule, it was a case in which the Revenue was invited to intervene but declined to do so, despite the large sum of inheritance tax at stake.
+The case was therefore heard without adversarial argument as to the law or the facts.
+Lloyd LJ commented (para 198) that he did not criticise the judge, given the limited argument before him, but that he did question his conclusion.
+I agree with both limbs of that comment.
+It is important to note the sequence of events in In re Griffiths.
+Mr Griffiths had a valuable holding in Iota, a property company (whose shares did not attract business assets relief).
+He was aged 73 when, in January 2003, he and his wife took advice about tax planning.
+They received a lengthy report setting out various options.
+Most involved making potentially exempt transfers, which progressively reduce inheritance tax on qualifying gifts if the donor survives for three years, and avoid tax entirely if the donor survives for seven years after making the gift.
+The report recommended that seven year term insurance cover should be obtained.
+Mr Griffiths decided to take various steps, the most important of which was a settlement of Iota shares worth over 2.6m.
+This was effected by a two stage process which was completed in February 2004.
+He decided not to obtain term insurance.
+Unfortunately he was diagnosed with lung cancer in October 2004, and died in April 2005.
+Had he done nothing, the Iota shares would have formed part of his residuary estate, in which his wife took a life interest, and no inheritance tax would have been payable on his death.
+In those circumstances his executor commenced proceedings asking that the dispositions should be set aside on the ground of mistake ([2009] Ch 162, para 6): The relevant mistake on which they rely is that Mr Griffiths mistakenly believed, at the time of the transfers, that there was a real chance that he would survive for seven years, whereas in fact at that time his state of health was such that he had no real chance of surviving that long.
+The medical evidence (in the form of letters from his general practitioner, from a consultant oncologist and from a consultant rheumatologist) was inconclusive, but the GP expressed the view that it was extremely unlikely that the cancer was present in April 2003.
+On this evidence the judge found that in April 2003 Mr Griffiths had a life expectancy of between seven and nine years.
+He went on to observe (para 18): It is unfortunate that in a case involving 1m worth of tax a proper medical report was not placed before the court and that the claimants are compelled to rely on a single sentence in a letter from [the oncologist].
+Although I have hesitated about this finding, I am prepared to find, by a narrow margin that he was suffering from lung cancer on 3 February 2004; and that following the onset of lung cancer at that time his life expectancy did not exceed three years in February 2004.
+Had the facts been contested, I might not have felt able to make this finding.
+On the rather uncertain foundation of that finding the judge decided that the assignment of 3 February 2004 should be set aside (para 30): By that time Mr Griffiths was suffering from lung cancer about which he was unaware.
+He did therefore make a mistake about his state of health.
+Had he known in February 2004 that he was suffering from lung cancer he would also have known that his chance of surviving for three years, let alone for seven years, was remote.
+In those circumstances I am persuaded that he would not have acted as he did by transferring his reversionary interest in the shares to trustees.
+The judge did not say whether this was (in the Goff & Jones formulation) an incorrect conscious belief or an incorrect tacit assumption.
+The editors of that work (para 9 36) treat it as a tacit assumption but it seems close to the residual category of mere causative ignorance.
+Had the judge not made his hairs breadth finding about the presence of cancer in February 2004 it would have been a case of misprediction, not essentially different from a failure to predict a fatal road accident.
+Lloyd LJ observed (para 198) that it was strongly arguable that, having declined to follow the financial consultants recommendation of term insurance, Mr Griffiths was taking the risk of deterioration of his health and failure to survive the statutory period.
+What type of mistake?
+Some uncontroversial points can be noted briefly.
+It does not matter if the mistake is due to carelessness on the part of the person making the voluntary disposition, unless the circumstances are such as to show that he deliberately ran the risk, or must be taken to have run the risk, of being wrong. (There is an illuminating discussion of this point in Lord Hoffmanns speech in Deutsche Morgan Grenfell Group plc v Inland Revenue Commissioners [2007] 1 AC 558, paras 24 30).
+Nor need the mistake be known to (still less induced by) the person or persons taking a benefit under the disposition.
+The fact that a unilateral mistake is sufficient (without the additional ingredient of misrepresentation or fraud) to make a gift voidable has been attributed to gifts being outside the laws special concern for the sanctity of contracts (OSullivan, Elliott and Zakrzewski, The Law of Rescission (2007) para 29.22): It is apparent from the foregoing survey that vitiated consent permits the rescission of gifts when unaccompanied by the additional factors that must be present in order to render a contract voidable.
+The reason is that the laws interest in protecting bargains, and in the security of contracts, is not engaged in the case of a gift, even if made by deed.
+Conversely, the fact that a purely unilateral mistake may be sufficient to found relief is arguably a good reason for the court to apply a more stringent test as to the seriousness of the mistake before granting relief.
+The Revenues printed case (paras 70 to 74) seeks to play down the distinction between mistake in the law of contract and its role in equitable rescission of voluntary dispositions.
+It seeks to build boldly on the decision of the Court of Appeal in Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd (The Great Peace) [2002] EWCA Civ 1407, [2003] QB 679, which did not follow (and has effectively overruled) Solle v Butcher [1950] 1 KB 671.
+The argument is that logic requires that a deed which transfers property for no consideration can be set aside only for a mistake of a fundamental nature that would render a contract void.
+Mr Jones did not cite any authority for this heterodox submission, and there is high authority (starting with Ogilvie v Allen) against it.
+Equity will grant specific performance of a covenant only if it is supported by valuable consideration.
+This includes the marriage consideration, but only if the covenant is being enforced by or on behalf of a person or persons within the scope of the marriage consideration.
+The traditional rules of equity were considered and explained by the Court of Appeal in Attorney General v Jacobs [1895] 2 KB 341, an account duty case, and In re Cooks Settlement Trusts [1965] Ch 902, a decision of Buckley J, illustrates their application within living memory.
+They are necessary to the understanding of cases like Ellis v Ellis (1909) 26 TLR 166, where the after acquired property covenant in Mrs Elliss marriage settlement was enforceable in equity, because there were children of the marriage.
+But the notion that any voluntary disposition should be accorded the same protection as a commercial bargain, simply because it is made under seal, is insupportable.
+Leaving aside for the present the degree of seriousness of the mistake, there is also controversy about its nature (or characteristics), especially as to the distinction between effect and consequences drawn by Millett J in Gibbon v Mitchell [1990] 1 WLR 1304.
+In that case two funds (Mays fund and Henrys fund) were settled in 1946 by Mr Henry Gibbons parents on the occasion of the marriage of his sister May.
+The funds were settled on May and Henry respectively for life, on the statutory protective trusts in section 33 of the Trustee Act 1925 (with a modification in the case of Henrys fund), but with power for May to surrender her protected life interest so as to accelerate the interests of her children once they had attained vested interests.
+For some unknown reason there was no corresponding power in respect of Henrys fund.
+The consequence was that a purported surrender by Mr Gibbon would cause a forfeiture of his fixed interest and bring into operation a discretionary trust affecting income during the rest of his life.
+In 1987 Mr Gibbon was a prosperous farmer aged 69, with two adult children.
+He wished to take steps to save inheritance tax and was advised by his accountants and solicitors to surrender his life interest, and at the same time release two powers of appointment, so as to accelerate his childrens interests.
+This advice was expressed in terms of enabling Henrys fund to pass immediately to the two children.
+His professional advisers failed to recognise, until after the deed of surrender had been executed, that the protective trusts provided a trap.
+Mr Gibbon applied to the court to have the deed of surrender set aside on the ground of mistake, and also for relief under the Variation of Trusts Act 1958.
+Millett J set the surrender aside, and varied the trust by lifting the protective trusts.
+In his judgment he referred to several of the older authorities, in most of which solicitors had misunderstood or gone beyond their instructions: Meadows v Meadows (1853) 16 Beav 401, Walker v Armstrong (1856) 8 De G M & G 531, Ellis v Ellis (1909) 26 TLR 166 and In re Waltons Settlement [1922] 2 Ch 509.
+Ogilvie v Littleboy was not cited.
+Millett J set out the principle which he drew from them at p1309: In my judgment, these cases show that, wherever there is a voluntary transaction by which one party intends to confer a bounty on another, the deed will be set aside if the court is satisfied that the disponor did not intend the transaction to have the effect which it did.
+It will be set aside for mistake whether the mistake is a mistake of law or a fact, so long as the mistake is as to the effect of the transaction itself and not merely as to its consequences or the advantages to be gained by entering into it.
+It will be observed that this formulation does not include the Ogilvie v Littleboy requirement of seriousness, except so far as it might be argued that any mistake as to the effect of a disposition is likely to be relatively serious.
+Millett Js judgment has been very influential.
+It is a mark of the high respect in which he is held that an extempore first instance judgment, not (so far as appears from the judgment) based on much adversarial argument, is cited as one of the key authorities in most of the standard works on equity and trusts, including Snell, 32nd ed. (2010) 11 008, 22 052; Lewin, 18th ed. (2008) 4 58, 29 231; Underhill and Hayton, 18th ed. (2010) 15 28 to 15 34; and Thomas and Hudson, 2nd ed. (2010) 20.37.
+But the source from which Millett Js statement of principle is derived is far from clear and it has been the subject of some criticism, both from legal scholars and in more recent decisions of the court.
+It is generally agreed that effect must mean legal effect (in the sense of the legal character or nature of a transaction).
+In Dent v Dent [1996] 1 WLR 683, 693 the deputy judge (David Young QC) understood it as the purpose or object of a transaction.
+Several other first instance judges have commented that the distinction between effect and consequences is not always clear, including Davis J in Anker Petersen v Christensen [2002] WTLR 313, 330.
+Lawrence Collins J went further in AMP (UK) plc v Barker [2001] WTLR 1237, para 70, saying of the distinction: If anything, it is simply a formula designed to ensure that the policy involved in equitable relief is effectuated to keep it within reasonable bounds and to ensure that it is not used simply when parties are mistaken about the commercial effects of their transactions or have second thoughts about them.
+On that view it comes close to Lindley LJs more general requirement for the mistake to be serious.
+In Wolff v Wolff [2004] STC 1633, Mann J considered (para 23) that the test was not a limiting factor, and (para 26) noted that Lawrence Collins J had referred to commercial consequences, not legal consequences.
+Lloyd LJ has now reviewed Gibbon v Mitchell twice, first in Sieff v Fox and then in Pitt v Holt.
+In Sieff v Fox, Ogilvie v Littleboy was brought to light after a long period of obscurity (though it is mentioned in Peter Birks Introduction to the Law of Restitution, first published in 1985).
+Lloyd LJ noted (para 106) that a test based on the legal effect of a transaction could not cover the tax consequences of a transaction, but that Lindley LJs more general test in Ogilvie v Littleboy might do so.
+He expressed no final view because of the special circumstances of the case before him ([2005] 1 WLR 3811, para 116).
+In Pitt v Holt Lloyd LJ went further.
+He expressed the view (para 208) that some recent cases about offshore trusts did not accord with English law: Clarkson v Barclays Private Bank and Trust (Isle of Man) Ltd [2007] WTLR 1703; In re Betsam Trust [2009] WTLR 1489; and In re A Trust [2009] JLR 447.
+He accepted the distinction made by Millett J in Gibbon v Mitchell but extended it (para 210) by formulating it as a requirement . that, for the equitable jurisdiction to set aside a voluntary disposition for mistake to be invoked, there must be a mistake on the part of the donor either as to the legal effect of the disposition or as to an existing fact which is basic to the transaction.
+This extension seems to have been primarily to accommodate cases such as Lady Hood of Avalon, where there was (para 206) a fundamental error of fact, in relation to a point which lay at the heart of the transaction.
+He also seems to have had in mind the New Zealand case of University of Canterbury v Attorney General [1995] 1 NZLR 78, which is discussed at para 199 of his judgment.
+The special feature of that case was that the University had to some extent encouraged, or at least failed to correct, the donors error; it wished to return the gift but the Attorney General, representing the public interest in charity, opposed that course.
+In addition, the mistake must, Lloyd LJ said, meet the Ogilvie v Littleboy test of sufficient gravity.
+This approach has been criticised by the editors of Goff & Jones, paras 9 101 to 9 106.
+I do not agree with all these criticisms of what the editors refer to as the Court of Appeals stricter, hybrid approach.
+But I can see no reason why a mistake of law which is basic to the transaction (but is not a mistake as to the transactions legal character or nature) should not also be included, even though such cases would probably be rare.
+If the Gibbon v Mitchell test is further widened in that way it is questionable whether it adds anything significant to the Ogilvie v Littleboy test.
+I would provisionally conclude that the true requirement is simply for there to be a causative mistake of sufficient gravity; and, as additional guidance to judges in finding and evaluating the facts of any particular case, that the test will normally be satisfied only when there is a mistake either as to the legal character or nature of a transaction, or as to some matter of fact or law which is basic to the transaction.
+To confirm the Gibbon v Mitchell test as formulated by Millett J would in my view leave the law in an uncertain state, as the first instance decisions mentioned in para 119 above tend to demonstrate.
+It would also be contrary to the general disinclination of equity to insist on rigid classifications expressed in abstract terms.
+Equity, unlike many continental systems, has not adopted Roman laws classification of mistakes: error in negotio (the nature of the intended transaction), error in corpore (the subject matter of the transaction), error in persona (the identity of the other party to the transaction) and error in substantia (the quality of the subject matter).
+The Gibbon v Mitchell test, at any rate if applied narrowly, would cover only the first of these categories.
+But in some situations errors in other categories may be just as basic and just as serious in their consequences.
+The conscience test
+Lindley LJs test in Ogilvie v Littleboy, quoted at para 101 above, requires the gravity of the causative mistake to be assessed in terms of injustice or, to use equitys cumbersome but familiar term, unconscionableness.
+Similarly Millett J said in Gibbon v Mitchell [1990] 1 WLR 1304, 1310: Equity acts on the conscience.
+The parties [in] whose interest it would be to oppose the setting aside of the deed are the unborn future children of Mr Gibbon and the objects of discretionary trusts to arise on forfeiture, that is to say his grandchildren, nephews and nieces.
+They are all volunteers.
+In my judgment they could not conscionably insist upon their legal rights under the deed once they had become aware of the circumstances in which they had acquired them.
+The evaluation of what is or would be unconscionable must be objective.
+Millett J identified precisely the class of beneficiaries in whose interest it would be for the forfeiture to stand (apart from tax considerations which made it disadvantageous for the whole family), but he did not do so in order to embark on the impossible task of establishing the state of the consciences of minor and unborn beneficiaries.
+Nor (apart from a defence of change of position) would the relative prosperity of the donor and the donees be relevant, except so far as it was part of the mistake (as in Lord Scotts example in Deutsche Morgan Grenfell Group Plc v Inland Revenue Courts [2007] 1 AC 558, para 87: A gift of 1,000 by A to B where B is believed to be impecunious but is in fact a person of substantial wealth).
+The gravity of the mistake must be assessed by a close examination of the facts, whether or not they are tested by cross examination, including the circumstances of the mistake and its consequences for the person who made the vitiated disposition.
+Other findings of fact may also have to be made in relation to change of position or other matters relevant to the exercise of the courts discretion.
+Justice Paul Finn wrote in a paper, Equitable Doctrine and Discretion in Remedies published in Restitution: Past, Present and Future (1998): The courts quite consciously now are propounding what are acceptable standards of conduct to be exhibited in our relationships and dealings with others .
+A clear consequence of this emphasis on standards (and not on rules) is a far more instance specific evaluation of conduct.
+The injustice (or unfairness or unconscionableness) of leaving a mistaken disposition uncorrected must be evaluated objectively, but with an intense focus (in Lord Steyns well known phrase in In re S (A Child) [2005] 1 AC 593, para 17) on the facts of the particular case.
+That is why it is impossible, in my view, to give more than the most tentative answer to the problems posed by Professor Andrew Burrows in his Restatement of the English Law of Unjust Enrichment (2013) p 66: we simply do not know enough about the facts.
+I add a postscript as to the criticism made by the editors of Goff & Jones (para 9 41), already quoted at para 108 above, of a boundary line which may be difficult to draw in practice, and which is susceptible to judicial manipulation, according to whether it is felt that relief should be afforded with the courts finding or declining to find incorrect conscious beliefs or tacit assumptions according to the courts perception of the merits of the claim.
+There is some force in this, although the term manipulation is a bit harsh.
+The fact that a unilateral mistake is sufficient means that the court may have to make findings as to the state of mind, at some time in the past, of a claimant with a lively personal interest in establishing that there was a serious causative mistake.
+This will often be a difficult task.
+But as a criticism of the Court of Appeal in Pitt I would reject it.
+The case was heard on affidavit evidence, without cross examination, and the Court of Appeal was in as good a position as the deputy judge to draw inferences and make findings of fact.
+More generally, the apparent suggestion that the court ought not to form a view about the merits of a claim seems to me to go wide of the mark.
+In a passage in Gillett v Holt [2001] Ch 210, 225, since approved by the House of Lords (see especially the speech of Lord Neuberger, with which the rest of the House agreed, in Fisher v Brooker [2009] 1 WLR 1764, para 63) I said in discussing proprietary estoppel that although its elements (assurance, reliance and detriment) may have to be considered separately they cannot be treated as watertight compartments: . the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine.
+In the end the court must look at the matter in the round.
+In my opinion the same is true of the equitable doctrine of mistake.
+The court cannot decide the issue of what is unconscionable by an elaborate set of rules.
+It must consider in the round the existence of a distinct mistake (as compared with total ignorance or disappointed expectations), its degree of centrality to the transaction in question and the seriousness of its consequences, and make an evaluative judgment whether it would be unconscionable, or unjust, to leave the mistake uncorrected.
+The court may and must form a judgment about the justice of the case.
+Mistakes about tax
+In this court Mr Jones applied for and obtained permission to raise two points which had not been raised below.
+The first (to be found in paras 80 to 95 of the Revenues case) was that a mistake which relates exclusively to tax cannot in any circumstances be relieved.
+This submission, for which no direct authority was cited, was said to be based on Parliaments general intention, in enacting tax statutes, that tax should be paid on some transaction of a specified type, whether or not the taxpayer is aware of the tax liability.
+Mistake of law is not a defence, Mr Jones submitted, to tax lawfully due and payable.
+In my opinion that submission begs the question, since if a transaction is set aside the Court is in effect deciding that a transaction of the specified description is not to be treated as having occurred.
+In the case of inheritance tax, this is expressly provided by section 150 of the Inheritance Tax Act 1984.
+That section is expressed in general terms as applying where a transfer has by virtue of any enactment or rule of law been set aside as voidable or otherwise defeasible, and the effect is that tax which would not have been paid or payable if the relevant transfer had been void ab initio is to be repaid, or cease to be payable.
+There is no exception in section 150 for avoidance on the ground of a mistake about tax.
+More generally, Mr Joness submission that tax is somehow in a different category is at odds with the approach of the House of Lords in Deutsche Morgan Grenfell [2007] 1 AC 558: see the speech of Lord Hope at para 44 and my own observations at paras 133 and 140.
+So far as Mr Jones cites any authority for his submission, he has referred, but only as an aside, to the decision of the Court of Appeal in Racal Group Services Ltd v Ashmore [1995] STC 1151.
+That was a claim to rectification.
+Rectification is a closely guarded remedy, strictly limited to some clearly established disparity between the words of a legal document, and the intentions of the parties to it.
+It is not concerned with consequences.
+So far as anything in Racal is relevant to the different equitable remedy of rescission on the ground of mistake, it is relevant, not to establishing the existence of a mistake, but to the courts discretion to withhold relief in cases where it would be inappropriate for the court to grant it.
+That is Mr Joness second new point and it is considered below.
+I would therefore reject the first new point as much too wide, and unsupported by principle or authority.
+But it is still necessary to consider whether there are some types of mistake about tax which should not attract relief.
+Tax mitigation or tax avoidance was the motive behind almost all of the Hastings Bass cases that were concerned with family trusts (as opposed to pensions trusts).
+In Gibbon v Mitchell there was a mistake as to the legal effect of the transaction, which was to plunge the family into the trap of forfeiture under the protective trusts, rather than to achieve the immediate acceleration of the adult childrens interests.
+But the seriousness of the consequences of the mistake was greatly enhanced by the inheritance tax implications.
+On the test proposed above, consequences (including tax consequences) are relevant to the gravity of a mistake, whether or not they are (in Lloyd LJs phrase) basic to the transaction.
+In Pitt the special tax advantage available under section 89 of the Inheritance Tax Act 1984 was a valuable one, and its loss was certainly a serious matter for Mrs Pitt, both as her husbands receiver and on her own account as his wife and carer and as the eventual beneficiary of his estate.
+Lloyd LJ accepted that (para 215).
+He was also prepared to accept (para 216) that Mrs Pitt had an incorrect conscious belief, or made an incorrect tacit assumption, that the proposed SNT (which had been the subject of advice from two professional firms, and approved by the Court of Protection) had no adverse tax effects.
+It was on the issue of mistake as to effect or as to consequence? (para 217) that Lloyd LJ felt obliged to withhold relief.
+He saw the tax liability, even though it was immediate and backed by a statutory charge (imposed by section 237 of the Inheritance Tax Act 1984) on the property of the SNT, as no more than a consequence (para 218): The legal effect [of the disposition] was the creation of the Special Needs Trust, on its particular terms, and the fact that the lump sum and the annuity were settled upon those terms.
+An irony of the situation is that if the SNT had been framed so as to comply with section 89 (requiring at least half of the property applied during Mr Pitts lifetime to be applied for his benefit) it would most probably have made no difference to the distribution of capital or income during his lifetime (as the deputy judge noted in para 13 of his judgment, in dismissing a Revenue argument that Mrs Pitt might have decided not to take advantage of section 89).
+It has not been suggested that the primary purpose of the SNT was other than Mr Pitts welfare and benefit, and the maintenance of his wife as his carer.
+The SNT could have complied with section 89 without any artificiality or abuse of the statutory relief.
+It was precisely the sort of trust to which Parliament intended to grant relief by section 89.
+In Futter this court declined to permit the appellants to raise for the first time the issue of mistake, primarily because there was no sufficient evidential basis for considering that issue for the first time on a second appeal.
+Gibbon v Mitchell received a passing mention in the judgment of Norris J [2010] STC 982, para 20, but only for the purpose of rejecting the Revenues argument that the distinction between effect and consequences was relevant to the Hastings Bass rule.
+Had mistake been raised in Futter there would have been an issue of some importance as to whether the Court should assist in extricating claimants from a tax avoidance scheme which had gone wrong.
+The scheme adopted by Mr Futter was by no means at the extreme of artificiality (compare for instance, that in Abacus Trust Co (Isle of Man) v NSPCC [2001] STC 1344) but it was hardly an exercise in good citizenship.
+In some cases of artificial tax avoidance the court might think it right to refuse relief, either on the ground that such claimants, acting on supposedly expert advice, must be taken to have accepted the risk that the scheme would prove ineffective, or on the ground that discretionary relief should be refused on grounds of public policy.
+Since the seminal decision of the House of Lords in WT Ramsay Ltd v IRC [1982] AC 300 there has been an increasingly strong and general recognition that artificial tax avoidance is a social evil which puts an unfair burden on the shoulders of those who do not adopt such measures.
+But it is unnecessary to consider that further on these appeals.
+Equity does not act in vain
+Mr Joness second new point was that Mrs Pitt should be refused relief because the granting of relief would serve no practical purpose, other than saving inheritance tax.
+He cited Sir Nicolas Browne Wilkinson V C in the Spycatcher case, Attorney General v Guardian Newspapers Ltd [1987] 1 WLR 1248, 1270: It is an old maxim that equity does not act in vain.
+To my mind that is good law and the court should not make orders which would be ineffective to achieve what they set out to do.
+In the event the House of Lords took a different view, by a bare majority, as to whether the continuation of the interlocutory injunctions would serve any useful purpose.
+The maxim exists, but as Mason CJ and McHugh J said in Corin v Patton (1990) 169 CLR 540, 557, Like other maxims of equity, it is not a specific rule or principle of law.
+It is a summary statement of a broad theme which underlies equitable concepts and principles.
+The fund subject to the SNT had many calls on its resources, with heavy professional costs and expenses as well as making provision for the welfare and care of Mr Pitt and the maintenance of his wife.
+On his death on 25 September 2007 there was only 6,259 in the trust (the deputy judge added, para 15, that that was on Mrs Pitts case but he had earlier stated, para 4, that the material facts were not in dispute at all).
+On Mr Pitts death this sum, subject to any outstanding liabilities, vested in his personal representatives under Clause 3 of the SNT.
+Any remaining value in the fund was therefore in the same beneficial ownership as if the SNT had been set aside by the court.
+On 22 November 2011, after this court had granted permission for Mrs Pitt to appeal from the Court of Appeals decision, her solicitors wrote to the Solicitors Office of the Revenue drawing attention to a submission in the Revenues skeleton argument before the Court of Appeal, para 105: But, in any event, the settlement should not be set aside after this period of time, especially when the Court does not know what proprietary claim would vest in the estate against third parties.
+Apparently with a view to avoiding any doubt on this point, Mrs Pitts solicitors set out the factual position as it was at that time and stated in the last paragraph of their letter: Please note that Mrs Pitt and Mr Shores [her co executor] have irrevocably instructed us to indicate, that if the Supreme Court orders that Mr Pitts settlement is set aside, no further claim (to monies or other relief), will be made by them in their capacity as Mr Pitts personal representatives, or by Mrs Pitt in her capacity as sole beneficiary of his estate, whether against the trustees (from time to time) of Mr Pitts settlement or the recipients of distributions or other payments from the trustees.
+Our clients will be satisfied with the effect of section 150 IHTA 1984 (consequent on the order setting aside Mr Pitts settlement).
+In these circumstances Mr Jones has submitted that it would be pointless, and so contrary to equitys practical approach, to grant relief that would achieve nothing, apart from a tax advantage to Mrs Pitt.
+He has relied on the approval by Peter Gibson LJ (with whom Sir Iain Glidewell and Kennedy LJ agreed) in Racal Group Services Ltd v Ashmore [1995] STC 1151, 1157 of what Vinelott J had said below [1994] STC 416, 425: In my judgment the principle established by these cases is that the court will make an order for the rectification of a document if satisfied that it does not give effect to the true agreement or arrangement between the parties, or to the true intention of a grantor or covenantor and if satisfied that there is an issue, capable of being contested, between the parties or between a covenantor or a grantor and the person he intended to benefit, it being irrelevant first that rectification of the document is sought or consented to by them all, and second that rectification is desired because it has beneficial fiscal consequences.
+On the other hand, the court will not order rectification of a document as between the parties or as between a grantor or covenantor and an intended beneficiary, if their rights will be unaffected and if the only effect of the order will be to secure a fiscal benefit.
+But Peter Gibson LJ went on to differ from Vinelott J in applying this principle.
+He held that there was an issue capable of being contested.
+The appeal was dismissed on another ground, that is because of the inadequacy of the evidence to satisfy the high standard of proof required for rectification.
+What the Court of Appeal decided in Racal was that it is sufficient, even for the closely guarded remedy of rectification, that there is a genuine issue capable of being contested, even if the parties decide that they will not in fact contest it.
+The test for rescission on the ground of mistake cannot be stricter than that.
+Until the solicitors letter of 22 November 2011 there was at least a possibility of third party claims arising, and the Revenue placed reliance on that as a reason for refusing relief.
+But for the letter, the Court might, if minded to grant relief, have required an undertaking to the same effect as the one that Mrs Pitt and Mr Shores have volunteered.
+Moreover the Revenues argument ignores the fact that unless and until the SNT is set aside, there are potentially contestable issues between the Revenue and any persons who, not being purchasers for value without notice, have received distributions from the SNT.
+The statutory charge under section 257 of the Inheritance Tax Act 1984 would prima facie give the Revenue a proprietary claim against such third parties.
+For these reasons I would reject the Revenues second new point also.
+The mistake claim in Pitt v Holt
+ground of mistake is that set out in para 126 above, and it is satisfied in Pitt v Holt.
+There would have been nothing artificial or abusive about Mrs Pitt establishing the SNT so as to obtain protection under section 89 of the Inheritance Tax Act 1984.
+There was a considerable delay in the commencement of the proceedings, but the Revenue do not rely on the delay.
+They do rely on rescission being pointless and therefore inappropriate, but I would reject that submission for the reasons set out above.
+The deputy judge found ([2010] 1 WLR 1199, para 15) that the setting aside of the settlement would have no effect on any third party (plainly he was not here treating the Revenue as a third party).
+I would discharge the orders below and set aside the SNT on the ground of mistake.
+In my opinion the test for setting aside a voluntary disposition on the
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+The Director of Public Prosecutions (the Director) has power to take over a private prosecution and thereupon to discontinue it.
+In determining whether to do so, it is his policy to apply certain criteria.
+This appeal concerns his first criterion, which relates to the strength of the evidence in support of the prosecution.
+Prior to 2009 the Director asked himself whether the evidence clearly failed to disclose a case sufficient for the defendant to be called upon to answer it.
+If his conclusion was that it clearly failed to do so, he took over the prosecution and discontinued it; otherwise, and subject to the application of further criteria, he declined to take it over.
+But in 2009 he changed his policy in relation to the evidential criterion.
+It became his policy to take over a private prosecution and to discontinue it unless the evidence was such as to render the prosecution more likely to result in a conviction than not to do so.
+Although one could refer to it as the 51% chance test or the greater than even chance test, I will refer to the current criterion as the reasonable prospect test.
+The central issue in this appeal surrounds the lawfulness of the Directors current policy.
+Mr Gujra, the appellant, instituted two private prosecutions.
+The Director, acting by the Crown Prosecution Service (the CPS), concluded that the evidence in support of them was not such as to satisfy the reasonable prospect test.
+So, applying his current policy, he took them over and thereupon discontinued them.
+It is agreed that, had he applied his previous policy, he would not have done so.
+The appellant applied for judicial review of his decision to do so and, specifically, for an order that it be quashed.
+On 9 March 2011 the Divisional Court of the Queens Bench Division (Richards LJ and Edwards Stuart J) dismissed the application: [2011] EWHC 472 (Admin), [2012] 1 WLR 254.
+In this appeal the appellants central contention is that the Directors current policy is unlawful because it improperly restricts the statutory right of a citizen to bring a private prosecution.
+The first of the appellants private prosecutions was instituted by his laying an information before the Southampton Magistrates Court against two brothers, Mr Imran Mirza and Mr Tamoor Mirza, which led, on 18 August 2010, to the courts issue of a summons against them.
+By his information, the appellant alleged that on 17 May 2010 the brothers had jointly perpetrated a common assault upon him.
+His case was and is that he was sitting outside a caf with two friends; that the brothers drove up and got out of the car; that one of them punched him, as a result of which he fell to the ground; and that both of them kicked him.
+There is no doubt that the police were called; that he complained to them that the brothers had assaulted him; and that the police noticed that he had sustained injuries, albeit that they considered them to be very minor.
+The second of the appellants private prosecutions was instituted in the same way, before the same court and on the same day, against a third brother, Mr Wajeed Mirza.
+By his information, the appellant alleged that on 24 May 2010 the third brother had, with intent, used threatening words towards him, thereby causing him alarm, contrary to section 4A of the Public Order Act 1986.
+His case was and is that the brother approached him while he was sitting in his car; called him a dirty grass and, in reference to his caste, a dirty patra; and threatened to kill him.
+The appellant promptly consulted solicitors about a possible private prosecution referable to both these alleged incidents; but the police also launched an investigation into the alleged assault.
+Late in May 2010 the appellant made statements both to his solicitors and to the police.
+Although to the officer at the scene they had denied having witnessed the alleged assault, his two friends also made statements to his solicitors and to the police, in which they claimed to have witnessed it and, broadly, confirmed the accuracy of his account of it.
+The appellant referred to the later incident in his statement to his solicitors but not in his statement to the police, who learnt of it only when they received a copy of the former statement.
+He did not suggest that anyone had witnessed the later incident.
+In his statements the appellant explained that he had sworn an affidavit in support of a claim in civil proceedings brought by a third party against Mr Imran Mirza and Mr Wajeed Mirza; and he suggested that the incidents had been by way of revenge.
+Late in July 2010 the police arrested and interviewed the brothers who had allegedly assaulted the appellant.
+They made no comment and were bailed.
+Then the police sent the file to the CPS for a decision whether to institute prosecutions.
+When, on 18 August 2010, the appellant instituted the prosecutions, he and his solicitors were aware that the CPS was still in the course of considering whether itself to institute them.
+When the CPS learnt of their institution, the focus of its review became whether to take over their conduct in order either to continue or to discontinue them.
+The review was entrusted to Mr Massey, a senior officer in the Complex Casework Unit of the Wessex CPS.
+On 22 October 2010 Mr Massey signed a 15 page review of the appellants allegations, together with a further allegation made against all three defendants by one of the appellants two witnesses.
+In his review Mr Massey set out in detail his reasons for concluding that the evidence in support of each of the two private prosecutions failed to satisfy the reasonable prospect test.
+In accordance with the current policy of the CPS when taking over a private prosecution, Mr Masseys review was submitted to Miss Levitt QC, its Principal Legal Adviser, who, on 9 November 2010, endorsed his conclusion.
+The Chief Crown Prosecutor for Hampshire thereupon directed that conduct of the prosecutions should be taken over in order that they should be discontinued.
+On 16 November 2010 the CPS duly notified the magistrates court pursuant to section 23(3) of the Prosecution of Offences Act 1985 (the 1985 Act) that the Director did not want the prosecutions to continue; and they were thereby discontinued.
+It also notified the appellant and the three defendants, by their respective solicitors, of the discontinuance.
+HISTORY
+The manner in which, over the centuries, public authorities have come to assume responsibility for the vast majority of criminal prosecutions in England and Wales has been characteristically haphazard.
+Until late in the 19th century prosecutions were brought almost entirely by the victims of the alleged crimes or, if they were dead, by their kinsmen.
+Local parish constables, not organised on any national or even regional basis and not even paid, sometimes helped the victims to prosecute.
+By about 1730, if they could afford it, prosecutors and defendants sometimes engaged lawyers to represent them.
+At around the same time associations of people with a common, sectional, interest in prosecuting particular felonies sprang up in order to conduct prosecutions on behalf of their members.
+But, as late as 1816, Chitty, in A Practical Treatise on The Criminal Law 1st ed (1816), vol 1, p1 wrote: Criminal Prosecutions are carried on in the name of the King, and have for their principal object the security and happiness of the people in general, and not mere private redress.
+But as offences, for the most part, more immediately affect a particular individual, it is not usual for any other person to interfere.
+The Attorney General intervened to conduct only a few prosecutions in very serious or notorious cases.
+He also had a long standing prerogative power to halt any prosecution in a court of record by entering a nolle prosequi, of which, in modern times, he makes rare use, indeed usually only when he considers that the defendant is unfit to plead.
+In 1829 came the first step towards putting the police on a statutory, albeit only regional, footing.
+It was the Metropolitan Police Act of that year (10 Geo 4, c 44) and it established the London Metropolitan Police.
+It was followed in 1856 by the County and Borough Police Act (19 & 20 Vict, c 69), which required every county and borough to have its own constabulary.
+This improvement in the organisation of the police seems to have been the spur to their assumption of responsibility for most prosecutions.
+Technically, however, the prosecuting police officer was just another private prosecutor.
+From about 1830 onwards there were calls for the introduction of a system of public prosecutions in England and Wales such as had long been established in Scotland and elsewhere.
+But the Prosecution of Offences Act 1879 (42 & 43 Vict c 22) went only a small way towards it.
+It established the role of the Director, under the direction of the Attorney General, but in effect it provided for him to institute prosecutions only in cases of importance or difficulty.
+Part of section 7 provided: Nothing in this Act shall interfere with the right of any person to institute, undertake, or carry on any criminal proceeding.
+But the Prosecution of Offences Act 1908 (8 Edw 7, c 3) repealed that part of section 7 and, by section 2(3), instead provided: Nothing in the Prosecution of Offences Acts 1879 and 1884, or in this Act, shall preclude any person from instituting or carrying on any criminal proceedings, but the Director of Public Prosecutions may undertake at any stage the conduct of those proceedings if he thinks fit.
+It is well established, and unchallenged in this appeal, that the power of the Director, first conferred in 1908, to undertake the conduct of a prosecution instituted by a private prosecutor comprises a power to undertake its conduct in order not only to continue it but also to discontinue it.
+In Gouriet v Attorney General [1978] AC 435, 487, 521 both Viscount Dilhorne and Lord Fraser of Tullybelton referred to his power to discontinue it; and it was formally held to exist in two cases decided shortly thereafter, namely in Turner v Director of Public Prosecutions (1978) 68 Cr App R 70 and in Raymond v Attorney General [1982] QB 839.
+In January 1981 a Royal Commission on Criminal Procedure, of which the chairman was Sir Cyril Philips, produced a report (Cmnd 8092).
+Its central recommendation was that there should be a statutory prosecution service for all 43 police force areas in England and Wales, based locally but with national co ordinating features; and that the police should conduct the prosecution (and its preliminaries) only to the point of charge or of the issue of the summons, whereafter the prosecution service should decide whether to proceed and, if so, should assume conduct of the prosecution.
+There was, so the Commission observed at paras 6.5 and 6.6 of the report, a lack of pattern in the existing prosecuting system in that it was not uniformly organised and administered across the 43 areas, with the result that the arrangements were characterised by variety and haphazardness.
+Two further recommendations of the Royal Commission deserve note.
+The first is its recommendation about the minimum strength of the evidence which should justify a prosecution.
+It noted, at para 8.8, that, where it fell to the Director to decide whether to prosecute, he applied the test whether or not there is a reasonable prospect of conviction; in other words, whether it seems more likely that there will be a conviction than an acquittal.
+It approved this test and, at para 8.9, recommended that it should be extended to all cases, and applied by all who make the decisions that bring a case to court.
+Someone should not be put on trial, observed the Commission, if it can be predicted, with some confidence, that he is more likely than not to be acquitted, since it is both unfair to the accused and a waste of the restricted resources of the criminal justice system.
+The second is the Commissions recommendation for reform of the arrangements for private prosecutions realistically so called, ie prosecutions by private citizens.
+It recorded at para 7.47, albeit without any clear endorsement of the argument on its part, that the great majority of our witnesses. argue in one way or another that the private prosecution is one of the fundamental rights of the citizen in this country and that it is the ultimate safeguard for the citizen against inaction on the part of the authorities.
+It recommended, at para 7.50, that: (a) before even instituting a prosecution, a private citizen should ask the prosecution service to undertake it and that, by application of the criteria which it would apply to any other prosecution, the service should decide whether to do so; (b) were it to decline to do so, the citizen should be able to apply to a magistrates court for leave to prosecute it himself; and (c) were the court to grant leave (the criteria for the determination of which the Commission did not identify), the costs of the private prosecution should be paid out of public funds.
+Subject to its preference for a strong national direction of the proposed new service, the government accepted the central recommendation of the Royal Commission.
+The result was Parliaments enactment of the 1985 Act, section 1 of which established the CPS under the overall leadership of the Director and the regional leadership of Crown Prosecutors.
+Section 10 provided that: (1) The Director shall issue a Code for Crown Prosecutors giving guidance on general principles to be applied by them (a) in determining, in any case (i) whether proceedings for an offence should be instituted or, where proceedings have been instituted, whether they should be discontinued;.
+But the government did not accept the Commissions recommendation for reform of the arrangements for private prosecutions.
+By then section 2(3) of the 1908 Act had been replaced, in almost identical terms, by section 4 of the Prosecution of Offences Act 1979.
+The latter was replaced by section 6 of the 1985 Act, being the section central to this appeal and still in force today.
+It provides as follows: (1) Subject to subsection (2) below, nothing in this Part shall preclude any person from instituting any criminal proceedings or conducting any criminal proceedings to which the Directors duty to take over the conduct of proceedings does not apply. (2) Where criminal proceedings are instituted in circumstances in which the Director is not under a duty to take over their conduct, he may nevertheless do so at any stage.
+The references to the Directors duty to take over the conduct of proceedings are to section 3(2) of the Act, in which the various types of proceedings to which his duty applies are identified.
+In particular they include almost all criminal proceedings instituted on behalf of a police force.
+In July 1998 the Law Commission, under the chairmanship of Dame Mary Arden, published a paper entitled Consents to Prosecution (Law Com No 255), in which, at para 5.8, it analysed section 6 as giving the private prosecutor in effect an unlimited right to institute a prosecution but as limiting his right to continue it by reference both to the Directors duty to take it over in the circumstances identified in section 3(2) and to his power to do so in all other circumstances, conferred by subsection (2) of section 6 itself.
+I agree with the analysis.
+Pursuant to section 10 of the 1985 Act the Director issued a Code for Crown Prosecutors (the Code).
+The first edition was published in 1986.
+The current edition is the sixth, published in February 2010.
+Importantly, it provides, at para 2.3: Although each case must be considered on its own facts and on its own merits, there are general principles that apply to the way in which prosecutors must approach every case.
+As in all earlier editions, the Code then provides, at para 3.4, that, subject to an irrelevant exception, prosecutors should start or continue a prosecution only when the case has passed both stages of the Full Code Test, which, at para 4.1, are identified as the evidential stage and the public interest stage.
+Paras 4.5 and 4.6 provide that the evidential stage is passed if the evidence is sufficient to provide a realistic prospect of conviction, namely that the court is more likely than not to convict the defendant.
+In relation to the public interest stage, para 4.12 provides that a prosecution will usually take place unless the prosecutor is sure that public interest factors tending against prosecution outweigh those tending in favour; and examples of factors which tend in each direction are given at paras 4.16 and 4.17.
+The appellant submits that the terms of section 10 of the 1985 Act are not wide enough to entitle the Director to include in the Code reference to the principles which he himself will apply in deciding whether to exercise his power under section 6(2) to take over the conduct of a private prosecution in order to discontinue it.
+Strictly speaking, the submission may be valid; but there is no point in dwelling on it because the Director has not included any such reference in the Code.
+His policy in this respect has been articulated separately.
+The best exposition of the policy of the Director in this respect, as it stood prior to 23 June 2009, is contained in a letter written on his behalf dated 27 July 1998 which was quoted by Laws LJ in giving judgment in the Divisional Court of the Queens Bench Division, in R v Director of Public Prosecutions Ex p Duckenfield [2000] 1 WLR 55, 63: [W]here we have been asked . to take over the prosecution in order to discontinue it, we would do so if one (or more) of the following circumstances applies: there is clearly no case to answer.
+A private prosecution commenced in these circumstances would be unfounded, and would therefore be an abuse of the right to bring a prosecution; the public interest factors tending against prosecution clearly outweigh those factors tending in favour; the prosecution is clearly likely to damage the interests of justice.
+The CPS would then regard itself as having to act in accordance with our policy.
+If none of the above apply there would be no need for the CPS to become involved and we would not interfere with the private prosecution.
+Clearly there is a distinction between the realistic prospect of conviction test in the Code . and the clearly no case to answer test mentioned above.
+Accordingly we recognise that there will be some cases which do not meet the CPS Code tests where nevertheless we will not intervene.
+It has been considered that to apply the Code tests to private prosecutions would unfairly limit the right of individuals to bring their own cases.
+But on 23 June 2009 the Director performed a volte face.
+He introduced the very policy which, in the letter quoted, he had described as unfairly limiting the rights of private prosecutors.
+In guidance issued on his behalf to CPS prosecutors entitled Private Prosecutions, published on that date, he wrote: You should take over and continue with the prosecution if the papers clearly show that: the evidential sufficiency stage of the Full Code Test is met; and the public interest stage of the Full Code Test is met; and there is a particular need for the CPS to take over the prosecution.
+A private prosecution should be taken over and stopped if, upon review of the case papers, either the evidential sufficiency stage or the public interest stage of the Full Code Test is not met.
+However, even if the Full Code Test is met, it may be necessary to take over and stop the prosecution on behalf of the public where there is a particular need to do so, such as where the prosecution is likely to damage the interests of justice.
+You should not take over a private prosecution if the papers clearly show that: the evidential sufficiency stage of the Full Code Test is met; and the public interest stage of the Full Code Test is met; and there is no particular need for the CPS to take over the prosecution (either to stop or continue with the prosecution).
+DISCUSSION
+The value to our modern society of the right to bring a private prosecution is the subject of lively debate.
+The Gouriet case [1978] AC 435 concerned the ability of a private citizen to secure an injunction restraining a threatened refusal by post office workers to handle mail to South Africa in breach of the criminal law.
+Members of the appellate committee of the House of Lords considered, in passing, his right to bring a private prosecution in the hypothetical event that the workers had proceeded to commit such an offence.
+Lord Wilberforce said, at p 477: This historical right which goes right back to the earliest days of our legal system, though rarely exercised in relation to indictable offences, and though ultimately liable to be controlled by the Attorney General (by taking over the prosecution and, if he thinks fit, entering a nolle prosequi) remains a valuable constitutional safeguard against inertia or partiality on the part of authority.
+Lord Diplock observed, at p 498, that the need for private prosecutions to be undertaken had largely disappeared but that the right to undertake them still existed and was a useful constitutional safeguard against capricious, corrupt or biased failure or refusal of those authorities to prosecute offenders against the criminal law.
+Can one confidently say that the later advent of the CPS has banished all the concerns articulated in the Gouriet case, particularly in relation to inertia, or (to adopt what may be the fairer word used by the witnesses to the Royal Commission: see para 19 above) inaction, on the part of the public authority?
+In Jones v Whalley [2007] 1 AC 63 the police administered a formal caution to the perpetrator of an assault and explained to him that, as a result, he would not be brought before a criminal court in respect of it.
+Thereupon his victim instituted a private prosecution against him in respect of it.
+The House of Lords held that the magistrates had been correct to stay the proceedings as an abuse of their process.
+General observations were made about the value of the right of private prosecution.
+Lord Bingham said, at para 9: There are . respected commentators who are of opinion that with the establishment of an independent, professional prosecuting service, with consent required to prosecute in some more serious classes of case, with the prosecution of some cases reserved to the Director, and with power in the Director to take over and discontinue private prosecutions, the surviving right is one of little, or even no, value. [Counsel for the victim] is entitled to insist that the right of private prosecution continues to exist in England and Wales, and may have a continuing role.
+But it is hard to regard it as an important constitutional safeguard when, as I understand, private prosecutions are all but unknown in Scotland.
+Lord Bingham added, at para 16, that the surviving right of private prosecution was of questionable value and could be exercised in a way damaging to the public interest.
+By contrast, Lord Mance suggested, at para 39, that the rarity of a private prosecution in Scotland did not undermine the traditional English view that the right to institute it was an important safeguard; and, at para 43, that, as Lord Wilberforce and Lord Diplock had suggested in the Gouriet case, it was a safeguard against the wrongful refusal or failure by prosecuting authorities to institute proceedings.
+With respect, I consider that there is much to be said in favour of the views thus expressed by Lord Mance.
+In any event, however, the fact is, that, by section 6 of the 1985 Act, Parliament chose, albeit in qualified terms, to reaffirm the right of private prosecution; and the conduct of the CPS must conform to its reaffirmation.
+In Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 Parliament had invested the Minister with a discretion to refer to a committee any complaint made to him about the operation of any scheme which he administered.
+Farmers in the South East of England complained to him about the price paid to them for milk which they were required to sell to the Milk Marketing Board.
+The House of Lords held that, in refusing to refer their complaint to the committee, the Minister had exercised his discretion unlawfully.
+Lord Reid explained, at p1030, that Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act and, at pp1032 1033, that it is the Ministers duty not to act so as to frustrate the policy and objects of the Act.
+So the question becomes: in applying the reasonable prospect test, as well as the two other tests, to his decision whether to intervene in a private prosecution in order to discontinue it, does the Director frustrate the policy and objects which underpin section 6 of the 1985 Act? Such is a focussed question; and, in my view, energetic, albeit (as I have indicated) controversial, assertions about the continuing constitutional importance of the right of private prosecution make little contribution to its answer.
+No greater contribution to an answer to the focussed question is made by the decision in Scopelight Ltd v Chief Constable of Northumbria Police Force [2009] EWCA Civ 1156, [2010] QB 438.
+There the Court of Appeal addressed the right of the police to continue to retain seized property under section 22 of the Police and Criminal Evidence Act 1984 once the CPS had decided, on grounds of public interest, not to prosecute the claimants for infringement of copyright but while a trade body formed to counter such infringements was determining whether to prosecute them.
+Although the relevant events took place prior to 23 June 2009, no change was then made to the Directors approach to the public interest in determining whether to intervene in a private prosecution in order to discontinue it.
+There was no suggestion in that case that, pursuant to his policy, the Director should intervene in the private prosecution, which the trade body had proceeded to institute, in order to discontinue it.
+That was because the CPS had decided not that it would be contrary to the public interest for the claimants to be prosecuted at all but only that it would be contrary to the public interest for a prosecution to be conducted by itself: see the judgment of Leveson LJ (with which Ward LJ and I agreed) at paras 12, 39 and 51.
+In suggesting a negative answer to the focussed question the CPS contends that both the earlier and the current tests which it was and is the policy of the Director to apply to the evidence in support of a private prosecution represent lawful approaches to the exercise of his discretion under section 6(2) of the Act; but that the current test is preferable for reasons to which, in part, I will refer in paras 34 to 38 below.
+The appellant does not go so far as to contend that the Directors current policy eliminates the private prosecution.
+Such prosecutions are still frequently instituted.
+The great majority survive his three current tests for intervention and discontinuance; they therefore proceed as private prosecutions or, occasionally, as prosecutions which he takes over and continues.
+Other public bodies, such as the Office of Fair Trading which prosecutes those who practise wrongful forms of selling, and Transport for London which prosecutes evaders of fares, apply the reasonable prospect test.
+So does the Royal Society for the Prevention of Cruelty to Animals, a private registered charity, the target of whose prosecutions is self evident.
+Retail companies often prosecute shop lifters and, although there is no firm evidence before this court as to the evidential test which they apply in determining whether to do so, the CPS seems not to intervene and, indeed, to be more than content thus to be spared entry into that sphere of prosecution.
+Other private bodies who sometimes conduct private prosecutions are identified in an illuminating article by Dr LH Leigh entitled Private prosecutions and diversionary justice in the Criminal Law Review: [2007] Crim LR 289, 293 294.
+Then there is the residue of prosecutions brought by individual citizens, often (as in this case) for alleged assaults upon them, which survive the CPS tests or of which, indeed, the CPS never comes to learn.
+In the Duckenfield case [2000] 1 WLR 55 police officers who had been made defendants to private prosecutions for manslaughter and other offences in connection with the Hillsborough disaster applied for judicial review of the Directors decision to decline to take over conduct of the prosecutions in order to discontinue them.
+By way of application of his old policy, the Director had declined to conclude that there was clearly no case for the officers to answer.
+Save in one irrelevant respect, their applications for judicial review failed.
+The Divisional Court rejected their contention that, in determining whether to intervene, the Director had appraised the evidence by reference to criteria which were insufficiently stringent or had applied them too rigidly.
+The officers did not go so far as to submit that the only lawful course open to the Director would have been to apply the criteria in the Code.
+But in his judgment, with which the other members of the court agreed, Laws LJ made observations about any such submission, upon which, in support of the present appeal, the strongest reliance is placed.
+Laws LJ said, at p 68: In truth, however, it could not be right for the DPP to apply across the board the same tests, in particular the reasonable prospect of conviction test. , in considering whether to take over and discontinue a private prosecution as the Code enjoins Crown Prosecutors to follow in deciding whether to institute or proceed with a prosecution themselves; the consequence would be that the DPP would stop a private prosecution merely on the ground that the case is not one which he would himself proceed with.
+But that, in my judgment, would amount to an emasculation of section 6(1) and itself be an unlawful policy; and in fairness [counsel for the officers] made it clear that he did not submit so much.
+The very premise of section 6(1) must be that some cases will go to trial which the DPP himself chooses not to prosecute.
+If, as the last sentence suggests, it was the preliminary view of Laws LJ in relation to this unargued point that the effect of applying the reasonable prospect test would be to eliminate private prosecutions, he was, as will be apparent from what I have said above, much mistaken.
+But there is another interesting feature of his judgment.
+For, at p 69 (reiterated in slightly different terms at p 71), he said: I see no reason why quite aside from the evidential test of no case to answer the DPP should not within his policy as presently formulated, have in mind the likelihood or otherwise of conviction when considering where the public interest lies.
+Therein lies, in my view, some dilution of the force of the judges earlier remarks.
+But, with respect to him, I have no appetite for thus blurring the distinction between the evidential test and the public interest test.
+The appellant argues that, within the policy previously applied by the Director to his determination whether to intervene and discontinue, there was a logical coherence wholly lacking within the current policy.
+The coherence lay, so it is said, in the fact that, subject of course to the difference between a survey of the written evidence and that of the oral evidence, the Director formerly asked himself in effect precisely the same question as the court would ask itself in ruling on a submission at the close of the prosecution case: is there a case for the defendant to answer? This argument, which finds favour in the judgment of Lord Mance at paras 98, 99 and 114 below, makes limited appeal to me.
+Much more relevant to the aptness of a prosecution than whether it is likely to survive a submission of no case to answer is whether it is likely to result in a conviction.
+In focussing, as his current policy does, on the prospects of a private prosecution in that regard, the Director in my view poses to himself a much more relevant question.
+I discern four additional reasons which help to justify the Directors current policy and which make it extremely difficult for the appellant to contend that it must be taken to frustrate the policy and objects which underpin Parliaments reaffirmation of the right of private prosecution in section 6(1) of the 1985 Act.
+They are as follows: (a) Parliament did not choose expressly to confine the discretion which, by subsection (2), it conferred upon the Director to take over the conduct of a private prosecution. (b) The object behind the main innovation of the 1985 Act, namely the establishment of the CPS, reflected the conclusion of the Royal Commission referred to above that there was a lack of consistency between local decisions whether to prosecute and, if so, how to conduct them.
+In moving the second reading of the Bill in the House of Lords Lord Elton, Minister of State at the Home Office, said (Hansard (HL Debates) 29 November 1984, cols 1014 1015) that what was needed was a prosecution service that avoided rigid uniformity yet applied consistent standards throughout the country.
+He was not there speaking of interventions in private prosecutions but it is hard to imagine that this central thread in the policy behind the Act was not long enough to extend to them. (c) A prosecution which lacks a reasonable prospect of success draws inappropriately upon the resources of the court. (d) A defendant would have a legitimate grievance about subjection to criminal prosecution at the instance of a private prosecutor in circumstances in which, by application of lawful criteria to the strength of the evidence against him, there would be no public prosecution.
+Furthermore, as in general terms he acknowledges in para 2.3 of the Code set out at para 22 above, the Director would act unlawfully if he were to adopt a rigid approach to the application of his policy in determining whether to institute prosecutions (and, by necessary extension, whether to intervene in order to discontinue them): British Oxygen Co Ltd v Board of Trade [1971] AC 610, 625 (Lord Reid).
+Indeed, as this case and the Duckenfield case [2000] 1 WLR 55 demonstrate, the lawfulness both of a determination to intervene in order to discontinue and of a determination not to do so is amenable to judicial review in which the determination will be scrutinised for compliance with, among others, the principle enunciated in the British Oxygen case.
+In Australia the Director of Public Prosecutions decides whether to institute a prosecution by applying, among others, a policy that a prosecution should not proceed if there is no reasonable prospect of a conviction being secured: Prosecution Policy of the Commonwealth, November 2008, para 2.5.
+His policy is to intervene in a private prosecution in order to discontinue it if, similarly, there is no reasonable prospect of a conviction being secured on the available evidence: para 4.10(a).
+It may be that the negative formulation in Australia of the reasonable prospect test renders it marginally less demanding than its positive formulation in England and Wales.
+But, for present purposes, the point is that the Director of Public Prosecutions in Australia applies the evidential test used in relation to all other prosecutions in determining whether to intervene in order to discontinue a private prosecution; and that, so far as this court is aware, there has been no challenge to the lawfulness of his so doing.
+In summary I find myself wholly unable to subscribe to the view that, in reaffirming, in qualified terms, the right to maintain a private prosecution in section 6 of the 1985 Act, Parliament must be taken to have intended that the Director should decline to exercise his discretion so as to intervene and discontinue it even if it lacks a reasonable prospect of success.
+In other words I discern nothing in the policy and objects underpinning the section to justify a conclusion that, by application of his current policy towards intervention and discontinuance, the Director frustrates them.
+Accordingly I would reject the appellants central contention in this appeal.
+In these circumstances the appellant falls back on two further, alternative, contentions.
+His first further contention is founded on a concession made on behalf of the CPS before the Divisional Court, namely that, although the Director had (so it was said) reasonably concluded that the prosecutions stood no reasonable prospect of resulting in convictions, the contrary conclusion would also be reasonable.
+From the foot of this concession the appellant contends that the only lawful application of a reasonable prospect test would be for the Director to ask not whether he concludes that there is a reasonable prospect of conviction but whether a reasonable prosecutor might so conclude.
+Efficacy, so the appellant argues, should in that way be given to such reasonable conclusion about the strength of the evidence as the private prosecutor may have reached.
+The CPS itself reminds the court that in deciding whether a prosecution is required in the public interest, prosecutors should take into account any views expressed by the victim regarding the impact that the offence has had: the Code, para 4.18; and the appellant thus argues for loosely analogous consideration of the views of the victim in relation to the evidential stage of the Directors inquiry.
+I discern nothing inherent in section 6 of the 1985 Act to mandate the Directors adoption of this different approach to the evidential test, being a type of approach the like of which I cannot readily recall in any other area of executive decision making.
+I regard the approach suggested by the appellant as unfounded in law and pregnant with intricate dispute.
+It is the CPS which contributes the expert, impartial, appraisal of the strength of the evidence; and, as Lord Neuberger explains in para 69 below, most victims are ill equipped to make a different contribution of significant value in this particular respect.
+The appellants second further contention is that, even if the Director was entitled to decide for himself whether there was a reasonable prospect of convictions, his negative conclusion was irrational.
+In an effort to substantiate this bold contention, the appellant makes detailed reference to aspects of the evidence.
+Like the first further contention, it was rejected by the Divisional Court and, had it been free standing, it would not have been permitted to be the subject of an appeal to this court.
+It would be wrong to prolong this judgment by descent into the detail of the evidence.
+I trust that my treatment of the second further contention will not be considered inappropriately high handed if I say only as I do that I reject it for the reasons given in paras 31 to 42 of the judgment of Richards LJ in the Divisional Court [2012] 1 WLR 245.
+RESULT
+So I would dismiss the appeal.
+LORD NEUBERGER
+The principal issue on this appeal is whether the current policy of the Director of Public Prosecutions (the Director) relating to taking over and discontinuing private prosecutions is, as the Divisional Court held, lawful.
+I agree with that conclusion for the reasons given by Lord Wilson, but, in the light of the division of opinion in this court, I propose to set out my thinking.
+The validity of the 2009 policy must be assessed in accordance with normal legal principles applicable to any policy promulgated by the Executive.
+In particular, it must be assessed against the current relevant statutory provisions, which are to be found in the Prosecution of Offences Act 1985 (the 1985 Act), of which the most important is section 6 (section 6).
+Ignoring classes of proceedings which the Director was obliged to take over by the 1985 Act, two relevant points emerge clearly from section 6.
+First, subsection (1) demonstrates that the long established right of individuals to institute and to conduct private prosecutions is, subject to subsection (2), to remain intact.
+Secondly, subsection (2) gives the Director the right, which is, at least in terms of the language of the subsection, wholly unfettered, to take over any prosecution initiated privately.
+As Lord Wilson says, the central issue on this appeal is whether the 2009 policy can fairly be said to frustrate the policy and objects which underpin section 6.
+Mr Fitzgerald put the issue slightly differently, namely, as reflected in Lord Mances judgment, whether the 2009 policy emasculated (or, to use Mr Fitzgeralds words, unlawfully attenuated, restricted or diminished) the right to conduct private prosecutions.
+In my view, a policy which emasculated the right would indeed frustrate the policy and objects of section 6, so I consider that there is, in principle and in practice, no real difference between the approach of Lord Wilson and that of Lord Mance.
+The Directors policy with regard to prosecutions which he is contemplating bringing and continuing is set out in his current Code for Crown Prosecutors (the Code), which is described by Lord Wilson in para 22 and by Lord Mance in paras 97 and 98.
+It is right to record that, when asked, Mr Fitzgerald QC, for the appellant, did not accept that that policy was necessarily lawful, even with regard to prosecutions which the Director is considering or conducting.
+However, I consider that, in the absence of any argument in this court or below to the contrary, we must proceed on the basis that the policy is lawful.
+Quite apart from the presumption of legality, it seems to me hard to quarrel with a policy that a prosecution will not be initiated or conducted by the Director unless the two requirements, set out and explained in the Code, are met, namely (i) there is a better than evens prospect of securing a conviction, and (ii) it would be in the public interest to proceed with the prosecution.
+The justification for the second requirement is self evident.
+While I am far from suggesting that the better than evens standard is the only one which the Director could adopt, there are several reasons for the first requirement. (i) It could be said to be oppressive on potential defendants to require them to face criminal proceedings unless there was a good chance of securing a conviction. (ii) Court time should not normally be taken up dealing with speculative prosecutions. (iii) Public money on prosecuting, and defending, criminal proceedings should generally be devoted to cases which are likely to be successful.
+And, perhaps more arguably, (iv) a low conviction rate may undermine confidence in the criminal justice system.
+I also note that the Royal Commission on Criminal Procedure (Cmnd 8092), chaired by Sir Cyril Philips in 1981 and the Law Commission in 1998 (Consents to Prosecution (Law Com No 255)) both considered the better than evens standard applied by the Director, and did not express any concerns about it.
+However, the mere fact that the better than evens standard is lawfully adopted by the Director for prosecutions which he is considering initiating and then conducts, does not ineluctably mean that it is a lawful standard for him to adopt when deciding whether to take over private prosecutions for the purpose of discontinuing them.
+However, there are four factors which seem to me to provide support for the contention that the Director is justified in adopting the same better than evens standard for private prosecutions as he applies under the Code to his own prosecutions.
+First, one of the primary purposes of the 1985 Act in expanding the Directors functions and duties was to introduce a degree of consistency in the approach to instituting and conducting prosecutions throughout England and Wales.
+Accordingly, at least on the face of it, it would seem hard to say that for him to adopt a consistent approach to public and private prosecutions was contrary to what was contemplated by the 1985 Act.
+Secondly, it is worth considering a case where the Director has taken over a private prosecution without the intention of discontinuing at the time, but subsequently decides (eg because of new evidence, or a change in the law) that the prospect of securing a conviction is less than evens.
+In such a case, it seems to me that he would be entitled to apply the Code to the case, and discontinue, particularly given that there is a continuing obligation on the Director under the Code to review any prosecution.
+If that is right, there is obvious logic in his applying the same standard when considering a private prosecution, given his power to take over its conduct in order to discontinue it.
+Thirdly, many of the factors which can be said to justify the better than evens standard in public prosecutions apply to private prosecutions. (i) Unfairness to defendants and (ii) use of court time apply to the same extent. (iii) Costs implications substantially apply to a similar extent, although unsuccessful private prosecutors will not always be reimbursed out of public funds. (iv) Confidence in the justice system may be rather less relevant, because the Directors record will not be affected, but, given the applicability of the other three factors, it still applies to a significant extent.
+Fourthly, as Lord Wilson has explained, the better than evens standard was approved in para 8.9 of the 1981 report of the Royal Commission, chaired by Sir Cyril Philips, not merely for prosecutions brought by the Director, but for all prosecutions.
+As mentioned above, Mr Fitzgeralds grounds for attacking the 2009 policy are based more on the contention that the 2009 policy emasculates the right of an individual to conduct a private prosecution.
+His case in this connection is that, while private prosecutions would not be wiped out by the 2009 policy, the right to conduct such prosecutions would be so substantially reduced as to be emasculated.
+He reinforced that argument by pointing out that it has to be judged bearing in mind that the right to bring a private prosecution is an aspect of a fundamental common law right, namely the right of every citizen to enjoy access to the courts.
+I have some sympathy with that argument, but in the end, I would reject it.
+The 1985 Act and the 2009 policy leave untouched the right of an individual to institute a private prosecution.
+Accordingly, in any case where the Director has not got round to deciding whether to prosecute, or has considered the facts and has decided not to prosecute, a private prosecution could be initiated.
+If that prosecution comes to the Directors attention, he will then have to assess, or, if he has already done so, to reassess, whether there is a better than evens prospect of the prosecution succeeding, and whether it is in the public interest that it proceed: if both those tests are satisfied, the prosecution will be permitted to proceed (either because the Director takes it over or as a private prosecution).
+That, of itself, gives the right to initiate private prosecutions an undoubted, indeed a virtually unlimited, function.
+As to the conduct of private prosecutions, it is clear that there will be some prosecutions which the Director will take over in order to discontinue, and some which he will take over in order to conduct them himself.
+However, it is also apparent from the 2009 policy that there will be prosecutions which the Director will not take over, and will allow to proceed as private prosecutions, even if one ignores the prosecutions which the Director effectively leaves to large concerns as described by Lord Wilson at para 33.
+After explaining that the Director has to be satisfied that the better than evens and public policy requirements are met if he is not to take over a private prosecution in order to discontinue it, the 2009 policy goes on to state that he should only take over and continue with the prosecution if the papers clearly show that there is a particular need for the CPS to take over the prosecution.
+Thus, any private prosecution which is found to have a better than evens chance of success and is not contrary to the public interest, will be permitted to continue as a private prosecution save where there is a particular need for it to be taken over by the Director.
+The examples of types of case where the private prosecution should be taken over in order to be pursued by the CPS suggest that there will be a significant proportion of private prosecutions which, if they satisfy the better than evens standard and the public policy requirement, will be allowed to proceed as private prosecutions.
+Albeit by way of non exhaustive, and non conclusive, examples, the 2009 policy suggests that private prosecutions should normally be taken over by the Director if the offence is serious, if there are detailed disclosure issues to resolve, or if the prosecution would involve the disclosure of highly sensitive material or applications for special measures or for witness anonymity.
+I unhesitatingly accept that no court should be relaxed about a code, or other set of rules or guidelines promulgated by any branch of the Executive, which has the effect of cutting down individuals rights of access to the courts.
+However, the right to institute and conduct a private prosecution is not in quite the same category of rights as a right to seek a remedy or compensation for a wrong by bringing a claim in the civil courts.
+The right to conduct a private prosecution has always been subject to being curtailed by the power of the Attorney General to stop the prosecution through issuing a nolle prosequi an executive power which, unsurprisingly, has no equivalent in the civil jurisdiction.
+Further, the most recent observations in the House of Lords about the right to bring private prosecutions are not universally enthusiastic contrast Lord Bingham of Cornhill (who described it as being of questionable value in a speech with which Lord Rodger of Earlsferry, Lord Carswell, and Lord Brown of Eaton under Heywood agreed), with Lord Mance (who described it as a safeguard against wrongful refusal or failure by public prosecuting authorities), in Jones v Whalley [2006] UKHL 41, [2007] 1 AC 63, paras 16 and 43 respectively.
+It is true that more enthusiasm was expressed about the right by Lord Wilberforce and Lord Diplock in Gouriet v Union of Post Office Workers [1978] AC 435, 477 and 498 respectively.
+However, that decision predated the 1985 Act; furthermore, both Lord Wilberforce and Lord Diplock accepted that the need for prosecutions to be undertaken (and paid for) by private individuals has largely disappeared (to quote Lord Diplock, at p 498), and Lord Wilberforce emphasised, at p 477, that the right was subject to the Attorney Generals power to enter a nolle prosequi a point also made by Lord Fraser of Tullybelton, at pp 520 521.
+It is also plain that the ability to bring private prosecutions does not rank as some sort of internationally recognised right, as Mr Fitzgerald fairly conceded.
+Lord Bingham pointed out in Jones [2007] 1 AC 63, at para 16, that it is primarily for the public authorities to prosecute criminals, and, according to Ms Montgomery QC, it is essentially for this reason that private prosecutions are not permitted in most courts of the United States.
+It is also true that, as Lord Mance says in para 105, a former Director and a former Attorney General, have spoken about the importance of retaining the right of individuals to bring private prosecutions.
+However, given my conclusion that the right to bring private prosecutions is not emasculated by the 2009 policy, it seems to me that such statements do not take matters much further.
+In any event, the fact that, in 1980, many informed people would have thought that a policy such as the 2009 policy was too restrictive does not mean that it would have been unlawful then, let alone that it is unlawful now, particularly following the passing of the 1985 Act.
+There is no doubt that the right to bring private prosecutions is still firmly part of English law, and that the right can fairly be seen as a valuable protection against an oversight (or worse) on the part of the public prosecution authorities, as Lord Wilson acknowledges at paras 28 and 29, and Lord Mance says at para 115.
+However, that does not really impinge on the lawfulness of the Director applying a better than evens test to private prosecutions.
+Once one accepts that the Director is entitled to apply that test to his own prosecutions, it is hard, as a matter of logic, to see how applying the same test to private prosecutions inhibits the valuable protection afforded by the right to bring such prosecutions.
+I am also not impressed by the point that an individual who was in some way directly involved in, or who witnessed, the commission of the alleged crime, is in a better position than the Director to assess the prospects of obtaining a conviction.
+An objective, expert, and experienced assessment of the prospects appears to me to be generally more reliable than the assessment of a person who will normally be (probably wholly) inexperienced in the criminal justice system, and (often, as in this case) involved, frequently as a victim, and therefore far from dispassionate.
+Given that the Director has been given statutory power to take over and discontinue a private prosecution, it seems to me hard therefore to say that the 2009 policy undermines the principle that the right to conduct private prosecutions should in principle survive.
+The interests of private prosecutors and of potential defendants, as the two groups with the greatest interest in the policy, should be taken into account, as should the public interest, which includes the efficient use of court time and public money, and confidence in the criminal justice system.
+I find it hard to see what is wrong with a policy that a private prosecution should be allowed to proceed as such, only if (i) it has a greater than evens chance of success, (ii) it is not contrary to the public interest, and (iii) there is no special reason why it should be conducted by the Director.
+I have no difficulty in accepting that many people might reasonably think that the 2009 policy is too restrictive of the rights of those individuals who wish to bring and conduct private prosecutions.
+However, that is a long way from saying that the policy is unacceptably restrictive as a matter of law.
+In my view, the arguments mounted by Mr Fitzgerald fall some way short of establishing such a proposition.
+Lord Wilson in para 34, and Lord Mance in paras 103 and 104 have referred to the observations of Laws LJ in R v Director of Public Prosecutions, Ex p Duckenfield [2000] 1 WLR 55, 68 69, which were understandably relied on by Mr Fitzgerald.
+There is no doubt that, in those observations, Laws LJ was addressing the very question which we have to decide, and that he answered that question, in characteristically trenchant terms, by indicating that a policy such as that contained in the 2009 policy would in his view be unlawful.
+Particularly coming from that source, the observations are entitled to great respect.
+However, they were not merely obiter: the issue had not been argued; indeed, it had actually been conceded on behalf of the then Director.
+There is a considerable difference in the weight to be attached to judicial observations in relation to a point which has been fully argued, as against those in relation to a point which has been conceded, often, no doubt, for good forensic reasons.
+Now that the point has been fully argued, I am satisfied, for the reasons given by Lord Wilson, that the 2009 policy, so far as it concerns the Directors approach to taking over private prosecutions with a view to discontinuing them, is lawful.
+As to the other issues, there is nothing which I can usefully add to what Lord Wilson has said at paras 42 44.
+Accordingly, I would dismiss this appeal.
+LORD KERR
+For the reasons given by Lord Neuberger and Lord Wilson, with which I agree, I too would dismiss this appeal.
+Section 6(2) of the Prosecution of Offenders Act 1985 gives the Director of Public Prosecutions (the Director) the power to take over the conduct of a private prosecution.
+Ancillary to this is the power to discontinue such a prosecution.
+The use of these powers involves the exercise of discretion.
+A person or agency who is exercising discretion as to how to use a statutory power may devise a policy to guide him in its use.
+He may formulate a policy or make a limiting rule as to the future exercise of his discretion, if he thinks that good administration requires it, provided that he listens to any applicant who has something new to say: British Oxygen Co Ltd v Board of Trade [1971] AC 610, 624G 625E.
+He must also ensure that the terms of the policy are readily available to those who are likely to be affected by its application.
+Beyond this, however, the only constraint on the exercise of his discretion is that it must not defeat or frustrate the policy of the Act from which it is derived: Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997.
+The policy should be used to promote the policy and objects of the Act: per Lord Reid, at p 1030.
+It has not been suggested that the Directors current policy is applied too rigidly in the British Oxygen sense or that its terms have not been sufficiently publicised.
+It has not been argued nor could it have been that the Director is not entitled to change his policy.
+The central plank of the appellants challenge has been as it had to be on its incompatibility with the policy and the objects of the Act.
+There is nothing in the language of section 6(2) (nor of the Act generally) to suggest that the policy of the enactment was to permit private prosecutions to continue unless they failed to meet a standard of raising a prima facie case against the proposed defendant.
+Nothing in the 1985 Act could be said to indicate a policy that the availability of the right to privately prosecute should continue as it had previously existed.
+There was, for instance, no provision such as is found in section 7 of the Prosecution of Offenders Act 1879 to the effect that nothing in the 1985 Act shall interfere with the right of any person to institute, undertake, or carry on any criminal proceeding.
+Indeed section 6(1) is expressly stated to be subject to the Directors power to take over the conduct of a private prosecution at any stage: section 6(2).
+If one is to find that the underlying policy objective of the 1985 Act was to preserve the right not to have ones private prosecution taken over and discontinued by the Director unless it did not disclose a case for a defendant to answer, one must look elsewhere.
+Lord Mance has said (in para 93) that the original stated purpose for which the Director was given the right to take over the conduct of proceedings in the enactments that preceded the 1985 Act was to ensure that cases which ought in the public interest to be pursued were not abandoned or inefficiently conducted because of lack of means on the part of the prosecutor or inertia.
+That may well be so.
+But, by the time that the 1985 Act came to be enacted, it was clear, not least because of the decision in Raymond v Attorney General [1982] QB 839, that the power of the Director to take over a prosecution with the object of aborting it in the public interest was not considered to be inimical to the purpose of the earlier enactments.
+If not in the language of the 1985 Act itself, where is the mooted right to be permitted to continue a private prosecution (provided it surmounts the prima facie case hurdle) to be found? Lord Mance suggests that it derives from an access to justice principle, rooted in fundamental constitutional theory.
+Lady Hale says that this is a centuries old right of access to a court to prosecute an alleged offender: para 123.
+But it is clear that the right, however venerable, has been modified by successive enactments.
+The very institution of the office of Director of Public Prosecutions impinged on the right.
+Prosecution of offenders was no longer exclusively in the domain of private individuals.
+Adjustment to the content of the right was therefore inevitable.
+The Director was given the power to stop private prosecutions.
+On whatever basis that power was exercised previously, the right to privately prosecute was affected.
+Moreover, access to justice is not, in any event, always an unqualified right of the citizen.
+In judicial review, for instance, the leave of the court to take proceedings is required.
+And it is undeniable that private prosecutions may still be and are regularly taken.
+As Lord Neuberger has pointed out, Mr Fitzgerald QC for the appellant accepted that for the Director to stop a private prosecution on the ground that the case is not one which he would himself proceed with would not, in the words of Laws LJ in R v Director of Public Prosecutions Ex p Duckenfield [2000] 1 WLR 55, 68, amount to an emasculation of section 6(1) of the 1985 Act, in the sense of extinguishing it.
+The change of policy has, of course, attenuated the right that had previously existed, as Mr Fitzgerald correctly contended.
+But this would not be the first instance of its attenuation.
+Access of the citizen to justice in the field of private prosecution is therefore not denied by the Directors change of policy.
+It is adjusted certainly.
+The essential question, however, is whether this adjustment is out of keeping with the underlying policy and objects of the 1985 Act.
+Various policy considerations have been examined in the judgments of the other members of the court.
+I do not consider it necessary for me to say anything about those beyond observing that the question whether it is lawful for the Director to change his policy is not necessarily answered by asking whether Parliament intended, by the 1985 Act, to curtail the right of the citizen to institute private prosecutions.
+It is clear that Parliament intended that the Director should have power to take over a private prosecution with a view to discontinuing it.
+Parliaments intention must be viewed against the background of the historical adjustment to the right to privately prosecute.
+That adjustment occurred because the Director was given the power to take over private prosecutions and because of the way in which he decided to exercise that power.
+Parliaments intention in 1985 was clearly to preserve the power and, it seems to me, its intention must also have contemplated that the policy by which the power might be exercised could be subject to change.
+Parliament may not have intended positively to restrict the right of citizens to institute private prosecutions but that does not mean that it had reached a settled intention that that right should remain precisely in the condition that, as a result of the then current policy of the Director, it then was.
+The conferring of a power on the Director to take over the conduct of a private prosecution, without prescription as to when and in what circumstances that power might be exercised, can only be regarded as consistent with a Parliamentary intention that the power could be exercised so as to assimilate the test for private prosecutions with that which the Director applied to the conduct of public prosecutions.
+After all, Parliament leaves to the Director the choice of the test as to when a public prosecution should proceed or be discontinued.
+Why should it be thought that the 1985 Act intended to preserve in aspic the test that had been in use at that particular time in respect of private prosecutions? There was, at least, lively debate about the value of the right to privately prosecute at the time of the passing of the 1985 Act.
+If Parliament had intended that the right to conduct private prosecutions or, more accurately, the right to prevent their being taken over by the Director in order to discontinue them should be maintained in the condition that it was permitted to exist by the then current policy of the Director, it would surely have been necessary to make this unequivocally clear.
+The right to instigate and continue private prosecutions had been subject to change before the 1985 Act.
+Most importantly, it had been subject to the policy of the Director that the prosecution evidence be sufficient to sustain a prima facie case.
+There was no reason to suppose that this policy would remain in an inviolate and immutable condition.
+I find it impossible to conclude therefore that there is anything about the discernible policy and object of the 1985 Act which would be undermined by the change to the policy in relation to private prosecutions which the Director has adopted.
+I have nothing to say on the subsidiary arguments advanced by the appellant beyond that I agree with Lord Wilsons and Lord Neubergers observations on them.
+LORD MANCE
+This appeal concerns the legitimacy, under section 6(2) of the Prosecution of Offences Act 1985, of a policy adopted by the Director of Public Prosecutions in 2009.
+The policy was to take over and discontinue any private prosecution coming to his notice which did not in his assessment meet an evidential test that it was more likely than not to lead to a conviction.
+Section 6(1) of the 1985 Act recognises the right to institute private prosecutions, but section 6(2) provides that the Director may take over their conduct.
+Lord Wilson has set out the section in para 21.
+Traditionally, all prosecutions in England and Wales could be described as private, even though brought in the name of the Crown.
+James Fitzjames Stephen said in his History of the Criminal Law of England, Vol I (1883), p 493: In England the prosecution of offences is left entirely to private persons, or to public officers who act in their capacity of private persons and who have hardly any legal powers beyond those which belong to private persons.
+In a lively and educative study, The Law Officers of the Crown (1964), by Professor J Edwards of the Middle Temple and University of Toronto, the then Director of Public Prosecutions, Sir Theobald Mathew, is quoted (p 335) as stating in 1950 that there are no public prosecutions in the ordinary sense of that term.
+Professor Edwards noted (p 401) the unreality of this analysis in relation to prosecutions by the Director or Treasury Counsel.
+The Directors office went back to the 1870s, but the Director had very few staff and undertook very few prosecutions prior to 1985.
+The vast majority of cases were prosecuted by the police, acting, Sir Theobald Mathew also said, as in effect, private citizens paid by their fellow citizens to carry out these duties on their behalf. (p 335).
+Quite apart from police prosecutions, however, a not inconsiderable number of bodies and some individuals have to this day continued to institute and pursue truly private prosecutions, as noted by Associate Professor Douglas Hay in Controlling the English Prosecutor (1983) 21 Osgoode Hall L J 165, 180 182, by Watkins LJ in R v Stafford Justices, Ex p Customs and Excise Comrs [1991] 2 QB 339, 350 351, by myself in Jones v Whalley [2006] UKHL 41, [2007] 1 AC 63, para 38 and by Dr L H Leigh, formerly Professor of Criminal Law at the London School of Economics, in Private prosecutions and diversionary justice [2007] Crim LR 289, 293 294.
+A research study for the Royal Commission on Criminal Procedure (Cmnd 8092) whose Report in 1981 preceded the 1985 Act is quoted by Hay (pp 180 181) as recording that less than 3% of all prosecutions were purely private, with about 9% of other prosecutions being for shoplifting by retail stores; roughly one quarter of adult prosecutions for non traffic offences were being brought by the police, more than one half of these originating with other official bodies.
+In The Law Officers of the Crown, Professor Edwards noted that the English and Welsh system had not been copied elsewhere, although describing it as a fundamental principle which was basic . in our constitution (p 336). Lord Simon of Glaisdale, speaking extra judicially on the second reading of the bill leading to the 1985 Act (Hansard (HL Debates), 29 November 1984, col 1068) described the right of private prosecution as founded on the fundamental constitutional principle of individual liberty based on the rule of law, and in Gouriet v Attorney General [1978] AC 435, 477, 498 Lord Wilberforce said that the right remained a valuable constitutional safeguard against inertia or partiality on the part of authority, and Lord Diplock spoke of a useful constitutional safeguard against capricious, corrupt or biased failure or refusal of authorities to prosecute offenders.
+Prior to the 1985 Act, the Directors office existed under and was governed by Prosecution of Offences Acts passed in successively 1879, 1884, 1908 and 1979.
+Section 7 of the 1879 Act (42 & 43 Vict c 22) stated that Nothing in this Act shall interfere with the right of any person to institute, undertake, or carry on any criminal proceeding.
+Under section 2 of the Act, regulations were to provide for the Director to institute, undertake or carry on proceedings in cases which appear to be of importance or difficulty, or in which special circumstances, or the refusal or failure of a person to proceed with a prosecution, appear to render the action of such Director necessary to secure the due prosecution of an offender; and regulations were duly made to that effect (see Edwards, p 379).
+Under section 6, where the Director had instituted or undertaken any proceeding, private persons might apply to a High Court judge for leave to continue such proceedings, if the Director had abandoned them or neglected to carry them on.
+The 1908 and 1979 Acts contained precursors to section 6 of the 1985 Act, which Lord Wilson has set out in para 14.
+However, these Acts contained no equivalent of section 6 of the 1879 Act.
+The original stated purpose for which the Director was given this right to take over the conduct of proceedings was thus to ensure that cases which ought in the public interest to be pursued were not abandoned or inefficiently conducted, whether through lack of means, inertia or any other reason.
+The Report of the Select Committee appointed to inquire into the Office of Public Prosecutor, 1884 (The Harcourt Committee) advocated that, in order to fulfil this aim, the police in every borough should transmit to the Director a list of all indictable offences committed in their district (see Edwards, p 376).
+However, this necessary adjunct to any comprehensive approach was and never has been implemented.
+While this was the original stated purpose, in practice, and modelling himself no doubt on the Attorney Generals right to enter a nolle prosequi (rarely exercised though that is, and then usually when he considers the defendant unfit to plead), the Director used also to take over cases with a view to discontinuing their prosecution.
+This practice was challenged but upheld at first instance in Turner v DPP (1978) 68 Cr App R 70 and on appeal in Raymond v Attorney General [1982] QB 839, where Sir Sebag Shaw said, at pp 846 847: The word conduct appears to us to be wider than the phrase carry on and suggests to our minds that when the Director intervenes in a prosecution which has been privately instituted he may do so not exclusively for the purpose of pursuing it by carrying it on, but also with the object of aborting it; that is to say, he may conduct the proceedings in whatever manner may appear expedient in the public interest.
+The Director will thus intervene in a private prosecution where the issues in the public interest are so grave that the expertise and the resources of the Director's office should be brought to bear in order to ensure that the proceedings are properly conducted from the point of view of the prosecution.
+On the other hand there may be what appear to the Director substantial reasons in the public interest for not pursuing a prosecution privately commenced.
+What may emerge from those proceedings might have an adverse effect upon a pending prosecution involving far more serious issues.
+The Director, in such a case, is called upon to make a value judgment.
+Unless his decision is manifestly such that it could not be honestly and reasonably arrived at it cannot, in our opinion, be impugned.
+Both Turner and Raymond were classic cases of abuse of process by private prosecutors, who had laid charges against persons who were Crown witnesses against them in separate proceedings.
+Our modern professionalised public prosecution system at the national level dates from the Prosecution of Offences Act 1985.
+This introduced for the first time a professional prosecuting service, of which the Director of Public Prosecutions was made head.
+He was given the duty under section 3(2): (a) to take over the conduct of all criminal proceedings instituted on behalf of a police force ; (b) to institute and have the conduct of criminal proceedings in any case where it appears to him that (i) the importance or difficulty of the case makes it appropriate that proceedings should be instituted by him; or (ii) it is otherwise appropriate for proceedings to be instituted by him;
+Under section 10, he was also bound to issue a Code for Crown Prosecutors giving guidance on general principles to be applied by them (a) in determining, in any case (i) whether proceedings for an offence should be instituted or, where proceedings have been instituted, whether they should be discontinued; or (ii) what charges should be preferred; and (b) in considering, in any case, representations to be made by them to any magistrates' court about the mode of trial suitable for that case.
+Section 10 did not require the Code to give guidance with regard to the situations in which the Director might under section 6(2) take over the conduct of a private prosecution.
+As Miss Clare Montgomery QC for the CPS accepted, the relevant version of the Code, issued in February 2010, therefore confines itself to addressing situations in which Crown prosecutors are faced with a decision whether to institute a prosecution; and, further, the Code imposes in this regard a Full Code Test with two limbs or stages: the first the evidential stage, the second the public interest stage.
+The first stage, derived from the Royal Commission Report 1981 which preceded the 1985 Act, involves considering whether there is a realistic prospect of success.
+That is a phrase familiar in other areas of the law and it sounds as if it should be beyond controversy until one appreciates that it is defined in this area to require a conclusion, before any prosecution, that an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged (Code, para 4.6).
+This stage therefore imposes a substantially higher threshold for public prosecution than any criminal court would apply.
+This is mitigated only to some extent if the CPS eschews a purely predictive approach based on past experience of similar cases (the bookmakers approach) see R (B) v Director of Public Prosecutions (Equality and Human Rights Commission intervening) [2009] EWHC 106, [2009] 1 WLR 2072, para 50, per Toulson LJ and recognises the force of the reference to a reasonable jury, bench or judge, either by asking whether it itself (as a reasonable authority) considers the evidence to be on balance sufficient to merit a conviction by a reasonable jury, bench or judge or (putting the same point in a different way) by recognising explicitly that in certain areas actual statistics regarding convictions may not be a reliable guide to what ought reasonably to happen.
+Lady Hale makes this point compellingly in her paras 126 and 128 to 129, with which I agree.
+A criminal court would only refuse to allow a charge to proceed if it was one on which no jury, bench or judge properly directed could properly convict or was otherwise an abuse of process.
+In the leading authority, R v Galbraith [1981] 1 WLR 1039, 1041 Lord Lane CJ endorsed the earlier decision in R v Barker (Note) (1975) 65 Cr App R 287, 288, where Lord Widgery CJ said: It cannot be too clearly stated that the judge's obligation to stop the case is an obligation which is concerned primarily with those cases where the necessary minimum evidence to establish the facts of the crime has not been called.
+It is not the judge's job to weigh the evidenceto do that is to usurp the function of the jury.
+In essence the same principle was endorsed in R v Galbraith: Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury (emphasis added).
+A similar caution about any interference with the right of access to court applies in civil proceedings, In Raymond [1982] QB 839, 846 Sir Sebag Shaw quoted a passage from the judgment of Fletcher Moulton LJ in Dyson v Attorney General [1911] 1 KB 410, 418, which stressed, in relation to the power to strike out as disclosing no reasonable cause of action, the gulf that lies between the summary dismissal of actions as, on the one hand, baseless and, on the other, because the judge does not think they will be successful in the end and said that: the courts have properly considered that this power of arresting an action and deciding it without trial is one to be very sparingly used, and rarely, if ever, excepting in cases where the action is an abuse of legal procedure. (p 418)
+The second stage of the Full Code Test involves identification, analysis and weighing of a potentially wide variety of factors which may count in favour of or against prosecution being in the public interest in any particular case.
+The Code is careful to stress that, at the second stage, each case must be considered on its own facts and merits (para 4.15).
+Until 2009 the taking over of a private prosecution with a view to discontinuance was governed by a policy which, as confirmed by the CPSs evidence in this case, identified the evidential threshold at which the CPS would intervene in a private prosecution to take it over and stop it in these terms: You should take over and discontinue the prosecution if one (or more) of the following circumstances applies: There is clearly no case to answer.
+A private prosecution commenced in these circumstances would be unfounded, and would, therefore, be an abuse of the right to bring a prosecution.
+Note that this is a more rigorous test than the evidential sufficiency stage of the Full Code Test.
+The policy, although not apparently published as such, was well known.
+In R v Director of Public Prosecutions, Ex p Duckenfield [2000] 1 WLR 55, it was explained on behalf of the DPP in the passage set out by Lord Wilson in para 24.
+Giving the lead judgment in Duckenfield Laws LJ endorsed this approach, saying (p 68C E), in a passage cited by Lord Wilson in para 34, that, for the Director to stop a private prosecution merely on the ground that the case is not one which he would himself proceed with .would amount to an emasculation of section 6(1) and itself be an unlawful policy.
+Laws LJ adopted a parallel view of the Directors power to intervene in the light of public interest factors, saying (p 69C E): I see no reason why quite aside from the evidential test of no case to answer the DPP should not within his policy as presently formulated, have in mind the likelihood or otherwise of conviction when considering where the public interest lies.
+And I see no basis for the suggestion that the law should compel the DPP to reverse the effect of the public interest factors so as to favour discontinuance unless in his judgment they clearly point in the other direction.
+The test as presently formulated seems to me designed to allow proper scope for the operation of the right of private prosecution.
+The private prosecutor is very likely to take a different view as to where the public interest lies than does the DPP, and section 6(1), I think, implies that he is entitled to do so.
+The approach urged by Mr Harrison would in effect require the private prosecutor to persuade the DPP that his view of the public interest is plainly right.
+I consider it strongly arguable that that would place an illegitimate constraint upon the right of private prosecution; but it is enough to hold, as I would, that the present public interest policy is perfectly consistent with the objects of the statute and thus well within the proper discretion of the DPP.
+The approach taken by the Director and Laws LJ in Duckenfield was firmly based in history.
+The 1985 Act followed upon the work of the Royal Commission on Criminal Procedure 1981 to which the then Director gave evidence that: I and my predecessors have always considered that taking over a private prosecution with a view to offering no evidence would be an improper exercise of the power to intervene, save in the exceptional circumstances of a case like Turner v Director of Public Prosecutions (1978) 68 Cr App R 70.
+The protection against unjustified prosecution lies, in my view, with the courts.
+If process is granted to a private prosecutor, the case should, in my view, be allowed to proceed subject to the normal rules of evidence and procedure.
+The then Attorney General, Sir Michael Havers, also stated to the Commission that he did not think it right that any attempt to control generally the private prosecutor should be made through the Directors' powers to take over a case and offer no evidence or my power to enter a nolle prosequi.
+Both would smack of interference by the Executive in the citizen's right of free access to the Courts; it is better that the control be by judicial process. (21 Osgoode Hall LJ 181)
+I note in parenthesis that the Commission itself, at para 7.47, had noted the position of the great majority of our witnesses who argue that the private prosecution is one of the fundamental rights of the citizen in this country and that it is the ultimate safeguard for the citizen against inaction on the part of the authorities, although questioning whether the very rare incidence of prosecutions by private citizens seemed a sufficient basis for this position.
+It had recommended that a private prosecution should only be brought after application to a Crown prosecutor, who would apply the same criteria as he would apply to any other prosecution in deciding whether to take the case on, and that, if the Crown prosecutor decided not to take it on, the private person should be able to apply to a magistrates court for leave to commence proceedings.
+This recommendation for automatic notification was not adopted, either then or when effectively repeated by the Law Commission in paragraph 13 of its 1998 report, Consents to Prosecution, Instead, the basic right to institute a private prosecution was re enacted and remains in section 6(1).
+The views expressed to the Commission and by the Director and by Laws LJ in Duckenfield, on the inter relationship between private prosecution and the power to intervene and take over the conduct of proceedings, have a sound basis in constitutional principle.
+That is the right of access to justice, a right which is granted by section 6(1) and which section 6(2) cannot have been intended to make ineffective or subvert.
+It is well recognised that a right of access to a court can, as Mr Fitzgerald QC submitted, only be removed by clear and specific words.
+In R v Lord Chancellor, ex p Witham [1998] QB 575, Laws J rightly identified access to a court as a right given special weight by the common law, and continued, at p 585: It has been described as a constitutional right, though the cases do not explain what that means.
+In this whole argument, nothing to my mind has been shown to displace the proposition that the executive cannot in law abrogate the right of access to justice, unless it is specifically so permitted by Parliament; and this is the meaning of the constitutional right.
+That approach follows from general principle.
+Parliament legislates against the background of rights which the common law treats as fundamental or constitutional.
+Legislation is to be construed as displacing such rights only so far as it contains clear and specific provision to this effect: see eg R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539, 587C G and 591E F.
+The principle is very relevant when considering the extent to which the general power to take over [the] conduct of a private prosecution conferred by section 6(2) of the 1985 Act embraces the power to take over proceedings for which there is a proper evidential basis and to which no public policy objection can be raised, not in order to pursue them but in order to bring them to an end, simply because, in the Directors own paper assessment, the proceedings are more likely than not to fail, applying the test set out in para 106 above.
+Its relevance is heightened by (a) the inherent limitations of any evidential assessment on paper of the prospects of criminal conviction, (b) the fact that in another persons equally reasonable assessment the proceedings may well be more likely than not to succeed and (c) the role of private prosecutions, as a type of democratic long stop or safety valve, in enabling complainants whose case is that they know that they have been victims of serious offending to bring the matter before a criminal court, in circumstance where public prosecutors have on balance assessed their case as lacking sufficient evidential strength.
+The new policy adopted for the first time in 2009 assimilates public and private prosecutions for the purposes of both limbs of the Full Code Test.
+First, when (and if) the CPS finds out about a private prosecution, it should take over and continue with the prosecution if both limbs are clearly shown and there is a particular need for the CPS to take over the prosecution.
+Secondly, a private prosecution should be taken over and stopped if, upon review of the case papers, either the evidential sufficiency stage or the public interest stage of the Full Code Test is not met, and, even then, it may be necessary to do this where there is a particular need to do so, such as where the prosecution is likely to damage the interests of justice.
+One would have thought that this last situation and the examples given (which include situations such as that where the prosecution interferes with the investigation or prosecution of another criminal charge or is vexatious) would all lead to failure at the second, public interest stage of the Full Code Test, but that is presently unimportant.
+Finally, a private prosecution should not be taken over if the papers clearly show that both stages of the Full Code Test are met, and there is no particular need for the CPS to take over the prosecution.
+Under the language of the Code, as Miss Montgomery accepted, the CPS is obliged to prosecute all cases satisfying the two stages of the Full Code Test.
+The policy adopted in 2009 therefore leaves no room for private prosecutions, except in cases where a private prosecutor starts proceedings before the CPS does, and the CPS decides to allow the private prosecutor to continue.
+The only value in the right to institute a private prosecution would, on this basis, consist in the fact that it would avoid having to take other means (eg judicial review) to stimulate the CPS into action and would, perhaps, in a few specific situations prevent a time limit for bringing a criminal charge from passing, before the CPS could be stimulated into action.
+Further, a considerable number of statutes expressly require that the consent of the Director of Public Prosecutions to any prosecution brought under their provisions.
+The statutes range alphabetically from The Agricultural Land (Removal of Surface Soil) Act 1953, section 3 to the Wildlife and Countryside Act 1981, section 28.
+Such consent may be given by any Crown Prosecutor on the Directors behalf: Prosecution of Offenders Act 1985, section 1(7).
+Under para 3.7 of the Code, the DPP or prosecutors acting on his behalf apply the Code in deciding whether to give consent to a prosecution.
+A justification traditionally advanced for such consent requirements is the prevention of inappropriate prosecutions: see The Law Commission Report on Consents to Prosecution 1998 (LC 255), paras 3.17 to 3.22.
+The Directors new policy relating to private prosecutions in effect equates all private prosecutions with prosecutions which are by statute specifically made subject to his consent.
+The difference is that consent has to be given in advance where a statute specifically requires consent, whereas in relation to other private prosecutions it is given only retrospectively as and when the Director (or CPS) learns of such a prosecution and acquiesces in its continuation.
+Miss Montgomery went so far as to submit that the suggested assimilation was a purpose of the 1985 Act.
+If so, it is particularly surprising that this went unnoticed by Directors of Public Prosecutions for the 24 years from 1985 to 2009.
+Further, on this analysis, not only Laws LJs dicta in Duckenfield but also the Court of Appeal decision in Scopelight Ltd v Chief Constable of Northumbria Police Force [2009] EWCA Civ 1156, [2010] QB 438 must be wrong.
+The issue in Scopelight was whether the police could retain seized material required in the context of a private prosecution, in circumstances where the CPS had decided that the second stage of the Full Code Test was not satisfied.
+The court (Ward, Wilson and Leveson LJJ), in a judgment given by Leveson LJ, a highly experienced criminal judge, concluded that they could.
+In so doing, the Court held that the CPSs view of the public interest was not determinative: there are, or at least may be, circumstances in which it is perfectly consistent for the DPP to decide not to prosecute, yet for him to decline to decide that a private prosecution is not in the public interest so as to justify his interference with it: in other words, he does not consider himself (or, in less significant cases, the CPS) the sole arbiter of the public interest and neither does the court. (para 36) and In my judgment, there is no basis either in the statutory framework, the authorities or policy to justify the proposition that a decision by the CPS not to prosecute conclusively determines that a prosecution is not in the public interest. (para 39)
+In these circumstances, Miss Montgomery developed in her oral submissions an alternative (and inconsistent) case.
+This was that, while assimilation was intended and appropriate in relation to the evidential test, it was not called for in relation to public policy; and, on this basis, there could be circumstances in which a private prosecutor could institute and pursue proceedings which the CPS would not regard as being in the public interest.
+This alternative hybrid finds no support in the actual language of the Code and the 2009 policy.
+It is as regards public policy consistent with Scopelight, but as regards the evidential test inconsistent with Duckenfield.
+It involves the strange proposition that a private prosecutor is free to take a different view from the Director and CPS on matters of public policy, but not free to take a different view on the effect of the available evidence.
+I note in parenthesis that it is also inconsistent with the Scottish position indicated in X v Sweeney 1982 JC 70, where the Lord Advocate had declined (and foregone the right) to prosecute on grounds of evidential weakness (the mental state of a claimed victim of rape), but a later date the victim, having recovered, petitioned for leave to bring a private prosecution.
+Lord Elmslie in the Inner House said: The rights of a private prosecutor in our system of criminal jurisprudence have grown up alongside those of the Lord Advocate and indeed, historically, they bulked larger in earlier times than those of the King's Advocate.
+These rights still exist and there seems to be no good reason in principle for saying that they should not be available in any case in which the Lord Advocate has, for any reason, declined to prosecute an offender to a conclusion.
+I do not accept that the scope of the right to institute, and by necessary implication once instituted pursue, a private prosecution preserved by section 6(1) can have been intended to be emasculated in the manner indicated by the Code and 2009 policy and by both of Miss Montgomerys primary and alternative cases.
+Laws LJs words at pp 68 69 in Duckenfield is in my opinion appropriate.
+Emasculate does not mean eliminate.
+The 1985 Act must be construed in the light of the long standing constitutional significance attaching to the right of private prosecution and the long standing understanding of the scope of the Directors right to intervene stated by the then Director as well as the Attorney General to the Royal Commission which reported in 1981 and reflected in the subsequent practice which was explained in Duckenfield and continued up to 2009.
+Nowhere, until 2009, is there any suggestion that the Director could or should exercise the power to take over and discontinue on the simple basis of evidential weakness, and certainly not evidential weakness not amounting to abuse of process by the pursuit of a hopeless case on which no reasonable tribunal could convict.
+The fact that the discretion conferred by section 6(2) is in general words carries the matter nowhere.
+Parliament must, as Lord Reid put it in a parallel context in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, 1030C have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act.
+The policy and objects of the 1985 Act cannot have been intended to undermine the right, long recognised as fundamental, of private prosecution in the manner which the Directors new policy would do.
+The power to take over the conduct of cases came into existence to enable the Director to carry on privately instituted cases which called for public prosecution.
+Despite the unspecific nature of the words of section 6(2), this subsection was accepted as including a power to take over and discontinue cases on general public policy grounds.
+The Director could be expected to be a good judge of these, which may (as where harm to national interests is involved or where the defendant has already suffered regulatory, civil or social consequences) be non justiciable.
+But evidential weakness, without more, is a matter on which the courts have developed their own clear policy and is a quite different matter.
+Litigants are not to be shut out from access to justice to pursue cases which they are otherwise on the face of it entitled to pursue unless such cases cannot reasonably hope to succeed.
+That is the test which the Director, like all his predecessors, applied until 2009.
+In my opinion, he exceeded his properly interpreted power under section 6(2) when in 2009 he departed from that long standing policy.
+An evidential test of balance of likelihood may be very appropriate as a test which the Director applies to CPS prosecutions.
+It is quite a different thing to impose it on private prosecutions.
+The Law Commission in its 1998 report, Consents to Prosecution, noted that private prosecutions were likely to be instituted which failed one or other of the evidential and public interest tests applied by the CPS (para 5.19), but also noted that it was regarded as an important safeguard for some members of society who believed that an individual prosecutor had misjudged the evidence in a case (para 5.4).
+It did not regard the fundamental right to institute a private prosecution as undermined by the harm that might result from an unsuccessful prosecution of an innocent defendant or from any prosecution not in the public interest, for three reasons (para 5.22), which I set out in Jones v Whalley [2007] 1 AC 63, para 42.
+They were (1) a risk that an individual Crown prosecutor will either misapply the Code or more likely, given the width of the Code tests apply a personal interpretation to the tests which, although not wrong, might differ from that of other prosecutors, (2) the perception in the eyes of some that the code may fail to achieve a proper balance and then this significant reason: (3) It should not be assumed that if it is wrong to bring a public prosecution then it is also wrong to bring a private prosecution.
+If, for example, a case is turned down by the CPS because it fails the evidential sufficiency test, but only just; if the private prosecutor knows that the defendant is guilty (because, say, he or she was the victim and can identify the offender); and if the case is a serious one, then a private prosecution might be thought desirable."
+These three reasons all inter relate.
+Private prosecution is, and I think always has been, a safeguard against the feelings of injustice that can arise when, in the eyes of the public, public authorities do not pursue criminal investigations and proceedings in a manner which leads to culprits being brought before a criminal court.
+The impunity which offenders appear to enjoy can be socially detrimental.
+This is, as the Law Commission rightly said, particularly so in those cases where a victim actually knows that the offence has been committed but finds that a CPS prosecutor does not think on a balance of likelihood that his evidence, if given orally in court, will be accepted.
+The feeling of injustice will be particularly acute, if (as is accepted, but is in any event clear, on the facts of the present case) the CPS prosecutors decision was a fine one, and the alleged victims or another prosecutor might equally reasonably have concluded that the case was one in which the evidential test was satisfied.
+All these considerations underline the sharp distinction between, on the one hand, the Directors power in the Code to set his own standards for publicly funded and pursued prosecutions and, on the other hand, his power to take over and discontinue a private prosecution.
+They underline the radical nature of the change purported to be introduced on a blanket basis by the policy issued in 2009.
+I am prepared to assume, though there is no evidence for this in the policy itself or the papers (and little support for it under the Code in the general words of clause 2.3 which Lord Wilson cites in para 22), that the CPS would recognise that it should be prepared to depart from that policy in particular exceptional cases (see British Oxygen Co Ltd v Board of Trade [1971] AC 610, 625C F).
+Even so, I regard a pure evidential test as outside the scope of section 6(2).
+The evidence filed on behalf of the Director in this case does not indicate that any investigation or analysis was undertaken of the actual incidence of, still less of any actual problems or unfairness created by, private prosecutions before the change of policy in 2009.
+It does however set out in general terms a number of considerations as the rationale for the change.
+These included the costs to society and those involved of a failed trial procedure and a suggested obvious need to ensure that cases were not brought where there is insufficient evidence and little prospect of conviction (witness statement of Alex Solomon, of the CPSs Strategy and Policy Directorate).
+But these are all considerations inherent in the right of access to a court, which the court controls only by eliminating cases that could not reasonably lead to conviction.
+The obvious need to eliminate cases where a reasonable jury, bench or judge could reasonably convict is not one which has ever occurred to courts, or which occurred to the Director, whose policy was the exact opposite until 2009.
+The Directors evidence also suggests that it is axiomatically wrong to have different tests for, or for a defendant to be exposed differently, in the context of private and public prosecutions.
+As an assertion, this begs the question, particularly in the light of decades, if not centuries, during which the distinction has been accepted as natural.
+For the reasons I have given and as confirmed by the authorities to this day, there are significant differences between private and public prosecutions.
+The differences are of principle and they arise from the constitutional status of the right to institute a private prosecution and of the right of access to the courts for that purpose.
+Private prosecutions cannot axiomatically be submitted, or taken over in order to be submitted, to whatever the Director may adopt as the appropriate evidential and public policy tests for the purposes of prosecutions which he himself initiates.
+It is not relevant on this appeal to consider the special case (probably very unusual) of a prosecution taken over by the Director on public policy grounds with the intention of pursuing it to trial, but in relation to which the CPS later concluded in the light of newly discovered material that the evidential test was no longer met.
+That special case does not arise here.
+Assuming that the Director would in such a case be entitled to apply his own evidential test, that does not throw any light on the scope of the Directors power to take over a private prosecution with a view to discontinuance.
+Finally, though as a lesser consideration, at a practical level there also appears to me to be a considerable difference between the pursuit by the CPS at public expense of a prosecution and the pursuit by a private person of a prosecution at his own cost in terms of time, as well as at his own expense subject to the courts power under section 17 of the 1985 Act to order reasonable compensation in respect of any expenses properly incurred in respect of proceedings for an indictable offence or in respect of a summary offence before a Divisional Court or the Supreme Court.
+Mr Fitzgerald had as an alternative submission the proposition that, even if the Director could otherwise take over and discontinue cases which did not meet the evidential test, he could not do so in cases where the private prosecutor could and did, equally reasonably, conclude that the evidential test was met, eg because he firmly believed that his oral testimony, if allowed to be presented before a court, would be believed.
+In the light of what I have already said, the possibility of two reasonable views is a strong reason why the right of private prosecution remains a valuable constitutional right, which is not to be taken as affected by a heightened evidential test well in excess of any that a criminal court would apply, in the absence of specific statutory authority.
+But, if what I have already said is to be rejected (as is I understand the view of the majority in this court), then I would align myself emphatically with Lady Hales further observations in her paras 131 to 133.
+Whatever else Parliament may be taken to have embraced by section 6(2), I see no reason at all to suppose that it included situations in which the alleged victim, who knows the facts, has commenced a private prosecution on the basis of his or her reasonably held conclusion that the test set out in para 98 above is met.
+Mr Fitzgerald had a yet further string to his bow, in case he had failed in his first two submissions.
+That is that the judgment formed by the CPS prosecutor in this case was Wednesbury unreasonable (Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223).
+I have considerable sympathy with the view that the CPSs assessment in this case was a harsh judgment, picking up small points and supposed but barely significant discrepancies in relation to charges which would ultimately have depended on an overall judgment on credibility, and would have been supported to a large extent by hard evidence, including in some measure injuries difficult to attribute to anything other than deliberate actions by the alleged offenders who were clearly identified by three persons as being at the scene and responsible for assault on 17 May 2010 and made no comment when interviewed under caution.
+I should add that I am not entirely convinced that the CPS applied even its own test correctly, in the sense which Lady Hale identifies in paras 126, 128 and 129 and which I have identified in para 98 above; although the relevant CPS review starts by setting out that test in full (para 6), it later describes it as a more likely than not to convict test (paras 7.1) and thereafter refers simply to the question as being whether there is a realistic prospect of conviction and to the court being unlikely [to] be satisfied of guilt (paras 7.4, 8 and 10).
+However, having regard to the views I have already expressed and which others hold, it is unnecessary for me to say more on these aspects.
+I would allow the appeal.
+LADY HALE
+I agree entirely with the judgment of Lord Mance and, like him, I would allow this appeal.
+For the reasons he gives, I cannot accept that it was the intention of Parliament, when setting up the Crown Prosecution Service in 1985, to allow the Director to reduce the centuries old right of private prosecution almost to vanishing point: in effect, to a right to pursue those prosecutions which the CPS are content to have pursued but would prefer to have pursued by some one else.
+Like him, I consider that the right of access to a court to prosecute an alleged offender is as much a constitutional right as a right of access to a court to bring a civil claim.
+The power to cut down that right in such a drastic manner could only be conferred by clear words and not by the repetition of very general words, especially when those very general words had previously been thought by all concerned to do no such thing.
+I add only a few words because the issue is of such fundamental importance for the protection of all victims of crime, but in particular of those most vulnerable victims, those who have traditionally had such difficulty in getting their voices heard or, if heard, believed.
+At the very least, in my view, this court should have acceded to the alternative case advanced by Mr Fitzgerald on the claimants behalf.
+The essential difference between the evidential tests applied by the courts and by the CPS relates to the likelihood of a witness being believed.
+The courts ask themselves: Is the evidence capable of being believed? If it is, and the jury or magistrates believe it, is it sufficient to prove the case? Is there, in other words, a case to answer? It is for the jury, judge or magistrates to decide whether they do in fact believe the witness.
+The CPS, on the other hand, ask themselves how likely it is that the witness will be believed.
+At least, that is what it looked as though the prosecutor was doing in this case.
+However, it is not quite as straightforward as that.
+There is more than one view of how the evidential stage of the CPS test is supposed to work.
+As Lord Mance explains in paragraph 98 a realistic prospect of success is defined in the Code as where an objective, impartial and reasonable jury, bench of magistrates or judge, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged.
+Presumably, therefore, the reference to a reasonable jury is designed to allow certain types of case to proceed even though it is well known that juries find it difficult to convict.
+With all due respect to Lord Neuberger, it cannot be a simple better than evens or is a conviction more likely than not? test.
+As Toulson LJ pointed out in R (B) v Director of Public Prosecutions (Equality and Human Rights Commission intervening) [2009] EWHC 106 (Admin), [2009] 1 WLR 2072, para 50, if a prosecutor were to adopt this so called bookmakers approach then few allegations of so called date rape would be allowed to proceed.
+The same could be said of complaints brought by children or mentally ill or disabled people.
+It was suggested in that case that the prosecutor should imagine himself to be the fact finder and ask himself whether, on balance, the evidence was sufficient to merit a conviction taking into account what he knew about the defence case: para 49.
+That suggests a test of is it more likely than not that I would convict, knowing what I do about the case?
+However, the reference to a reasonable jury, judge or magistrate must contemplate that there are at least some cases in which different courts could reasonably take different views of the evidence in the same case.
+So the reasonable prosecutor should ask himself what a reasonable court might do, not necessarily what he himself would do.
+Due allowance should also be made for the fact that it is only when the matter actually comes on for trial that it will be possible to decide whom to believe.
+We all know that the evidence can come out very differently in court from how it comes over on the page: sometimes it is fatally undermined by cross examination but sometimes it is strengthened.
+But if the test does contemplate that different courts could reach different views, I have grave difficulty in understanding how the CPS could possibly have decided to stop the prosecution in this case on evidential grounds.
+It is admitted that there were two reasonable views of the evidence in this case, that a reasonable prosecutor could have formed the view that it was indeed more likely than not that a court would convict.
+That is scarcely surprising.
+The time when and place where the claimant suffered injuries are not in doubt.
+The injuries are consistent with an assault having taken place.
+Nor is the presence of the accused at the scene seriously disputed.
+As yet they have offered no alternative explanation of events.
+So if there are admittedly two reasonable views of the CPS defined realistic prospect of success in this case, I cannot understand how it was not allowed to proceed, unless the CPS test in fact means something rather different.
+Perhaps, in effect, it means, do I, as a reasonable prosecutor, think that it is more likely than not that, when this case gets to court, there will be a conviction? But if that is the test, we are back to a simple better than evens test, which contemplates that juries may indeed be unreasonable and prejudiced, and many cases which are in fact prosecuted now would not be taken forward.
+These nuances may seem overly technical, but they matter hugely to the protection of vulnerable people from all forms of neglect and abuse, whether physical or sexual.
+The requirement of corroboration was abolished two decades ago.
+But one has only to listen to the radio or read the newspapers, especially at present, to know that apparently credible complaints have not been taken further because of so called lack of evidence.
+This was presumably not because of a formal requirement of corroboration but because of the difficulty of securing convictions without some independent evidence which confirms the complainants account.
+Despite this reluctance, we have made great strides in recent years in understanding that vulnerable witnesses are capable of being believed and in helping them to give the best evidence that they can.
+A commendable willingness to prosecute in the face of considerable odds has been part of this advance.
+For my part, therefore, I consider that Mr Fitzgeralds alternative case is unanswerable.
+How can it possibly have been Parliaments intention to allow the CPS to take over and prevent a private prosecution where a reasonable prosecutor could take the view that a reasonable court is likely to convict? This is to leave the victim (who, as Lord Mance points out, knows whether or not she is the victim of crime) to the chance of which among many no doubt entirely reasonable prosecutors handles her case.
+The fact that this is done on paper without any face to face contact with the witnesses only increases the possibility that reasonable prosecutors can take different views.
+The possibility of judicial review of the prosecutors decision is not a good enough safeguard, as this case demonstrates only too clearly.
+Just as a reasonable prosecutor could take the view that the case should proceed, a reasonable prosecutor could take the view that it should not.
+The possibility of bringing a private prosecution, however remote to most people, is a much more effective safeguard.
+Now that the new policy has effectively removed it, the victims of crime will have little prospect of challenging the prosecutors decisions.
+This is likely to increase, rather than decrease, the risk of inertia or partiality on the part of authority (see Gouriet v Union of Post Office Workers [1978] AC 435, 477).
+That risk is already considerable in the sort of problematic cases about which I am most concerned.
+Nor am I the only person to be concerned about such cases.
+They are likely to involve a violation of the victims rights under article 8 or, in extreme cases, article 3 of the European Convention on Human Rights.
+Under both articles, the state has a positive obligation to provide an effective deterrent, in the shape of the criminal law: see, for example, X and Y v The Netherlands (1985) 8 EHRR 235.
+That obligation is not fulfilled if a private prosecution, which a reasonable prosecutor could consider more likely than not to succeed before a reasonable court, can be prevented because another prosecutor takes a different view.
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+This appeal raises a short point under Part VII of the Housing Act 1996.
+The 1996 Act contains a set of provisions dealing with the obligations for housing authorities to those found to be homeless or threatened with homelessness.
+They were originally enacted in the Housing (Homeless Persons) Act 1977.
+Although there have been significant amendments, the general structure of the provisions has remained largely unaltered, as has the underlying principle that a home is somewhere which can accommodate a family together.
+Thus in Din (Taj) v Wandsworth London Borough Council [1983] AC 657, Lord Fraser said: One of the main purposes of that Act was to secure that, when accommodation is provided for homeless persons by the housing authority, it should be made available for all the members of his family together and to end the practice which had previously been common under which adult members of a homeless family were accommodated in a hostels while children were taken into care and the family thus split up . (p 668 D G)
+That principle is clearly established in the first two sections.
+Homelessness is defined by section 175(1) as follows: (1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he (a) is entitled to occupy by virtue of an interest in it or by virtue of an order of court, (b) has an express or implied licence to occupy, or (c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession (2) . (3) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.
+By section 176: Accommodation shall be regarded as available for a persons occupation only if it is available for occupation by him together with (a) any other person who normally resides with him as a member of his family, or (b) any other person who might reasonably be expected to reside with him.
+References in this Part to securing that accommodation is available for a persons occupation shall be construed accordingly.
+Thus what I shall call the extended meaning of available for his occupation, as defined by section 176, runs through the whole of Part VII of the 1996 Act.
+It is relevant not only in establishing whether a person is homeless under section 175, but also for setting the authoritys duty towards him if so found, including both their interim duty to provide accommodation pending a decision (section 188(1)), and (as in the present case) their final duty to someone found to be in a priority need and not intentionally homeless (section 193(2)).
+By contrast, no specific standard of accommodation has been laid down by Parliament.
+As Lord Brightman said in R v Hillingdon LBC ex p. Puhlhofer [1986] AC 484, discussing the 1977 Act: In this situation, Parliament plainly, and wisely, placed no qualifying adjective before the word accommodation in section 1 or section 4 of the Act, and none is to be implied.
+The word appropriate or reasonable is not to be imported.
+Nor is accommodation not accommodation because it might in certain circumstances be unfit for habitation for the purposes of Part II of the Housing Act 1957 or might involve overcrowding within the meaning of Part IV.
+Those particular statutory criteria are not to be imported into the Homeless Persons Act for any purpose.
+What is properly to be regarded as accommodation is a question of fact to be decided by the local authority.
+There are no rules.
+Clearly some places in which a person might choose or be constrained to live could not properly be regarded as accommodation at all .
+What the local authority have to consider, in reaching a decision whether a person is homeless for the purposes of the Act, is whether he has what can properly be described as accommodation within the ordinary meaning of that word in the English language. (p 517 E G) He added that, while the statutory definition of overcrowding had no relevance, overcrowding was not necessarily a factor to be disregarded altogether: accommodation must, by definition, be capable of accommodating.
+If, therefore, a place is properly capable of being regarded as accommodation from an objective standpoint, but is so small a space that it is incapable of accommodating the applicant together with other persons who normally reside with him as members of his family, then on the facts of such a case the applicant would be homeless because he would have no accommodation in any relevant sense. (pp 517 H 518 A)
+Some of Lord Brightmans assumptions about the intentions of Parliament
+seem to have been falsified shortly afterwards.
+Section 14 of the Housing and Planning Act 1986 introduced a requirement to disregard accommodation which it is not reasonable for him to continue to occupy (see now section 175(3) of the 1996 Act, quoted above).
+It also introduced a requirement that accommodation provided by the authority should be suitable (see now section 206(1) of the 1996 Act).
+In determining suitability the authority were required to have regard to the statutory provisions covering housing standards (see now section 210 of the 1996 Act).
+To that extent it mitigated the apparent harshness of the test laid down by the House of Lords in Puhlhofer.
+However it did not alter the definition of accommodation as such, nor detract from the authority of what Lord Brightman said about that word taken on its own.
+The issue in this case, in short, is to what extent (if at all) the extended meaning of the expression available for his occupation in the 1996 Act implies a requirement that the family be accommodated not only together, but in a single unit of accommodation.
+Factual background
+The facts are sufficiently summarised in the agreed statement of facts and issues: On 3 June 2004, the Appellants, the London Borough of Camden (the Council) accepted a full duty to secure that suitable accommodation was available for occupation by the Respondent, Ms Sharif, under s.193(2), Housing Act 1996.
+The Council accepted that Ms Sharifs father, Mr Sharif Ali, a man in his 60s with some health problems, and her sister, Zainab Sharif (aged 14), lived with Ms Sharif and were therefore part of her household.
+Accordingly Ms Sharifs father and sister are entitled to be accommodated with Ms Sharif under the said housing duty.
+Ms Sharif and her household were initially accommodated by the Council in hostel accommodation but, in 2004, they were accommodated also under s.193(2) at 83 Lopen Road, London N18 1PT (a 3 bedroom house) under a private sector leasing scheme.
+On 6 November 2009, still by way of accommodation under section 193(2), the Council asked Ms Sharif and the household to move to two units (nos. 125 and 132) on the same floor of Englands Lane Residence, London NW3, a hostel used by the Council to accommodate homeless applicants.
+Each unit comprised a single bed sitting room with cooking facilities, plus bathroom/w.c.
+The two units were separated by a few yards. no. 125 can accommodate two single people; no. 132 is suitable for one.
+It was envisaged that Ms Sharif and her sister would sleep in no. 125 and their father in no. 132.
+Ms Sharif refused the offer as unsuitable, because it comprised two separate units; due to her fathers medical condition they needed to be able to live as a family in the same unit.
+On 23 December 2009 the council confirmed that the offer was considered suitable, although not an ideal living arrangement, and that accordingly their housing obligation to her had come to an end (see section 193(5) of the 1996 Act).
+Ms Sharif requested a review of the decision on suitability, again mainly on the grounds of her fathers ill health and the need to provide care for him.
+It does not seem to have been suggested that lack of communal facilities as such was an issue.
+On 16 February 2010 the council upheld their decision.
+The review decision contained a detailed consideration of the facts, including the medical advice received by the Council, which in some respects differed from assertions made on behalf of Ms Sharif.
+In particular, the reviewing officer was not persuaded that the distance between the two units was a significant problem: I am not persuaded that your client would experience any significant difficulties in attending her father in a separate flat which your client agrees herself was only a few yards away.
+Walking from one flat to another and cleaning on her fathers behalf when necessary would not in my view have been any more challenging than cleaning a three bedroom house and walking up and down the stairs in the house.
+I am therefore not persuaded that the accommodation offered to your client was unsuitable as it would be more onerous caring for her sister and father in two separate flats.
+At this stage the sole issue was that of suitability; it was not suggested that accommodation in two units was as a matter of law incapable of satisfying the statutory requirement.
+Ms Sharif appealed to the London Central County Court on various points of law (both procedural and substantive), as she was entitled to do by virtue of section 204 of the 1996 Act.
+The present issue was raised for the first time by an amendment to the original grounds of appeal in the following terms: On a proper construction of section 176 Housing Act 1996 it is not lawful for the authority to purport to discharge its duty to secure accommodation for the appellant under Part VII of the Housing Act by providing separate accommodation for her father being a person who normally resides with her as part of her family.
+The appeal was dismissed on 24 June 2010 by HH Judge Mitchell.
+He took note in particular of a judgment of Scott Baker J in R v Ealing London Borough Council ex parte Surdonja [1999] 1 ALL ER 566.
+In that case the family were housed in two hostels approximately a mile apart.
+Noting that the council were obliged to provide accommodation available not only for the claimant but also for his family, the judge had said: In my judgment the obligation is not discharged by providing split accommodation in separate dwellings.
+It is the policy of the law that families should be kept together; they should be able to live together as a unit.
+I can well see that the obligation could be discharged by, for example, separate rooms in the same hotel, but not I think in two entirely separate hostels up to a mile apart. (p 571).
+HH Judge Mitchell saw this as indicating Scott Baker Js view that the obligation could be fulfilled by offering split accommodation within the same building.
+He saw that as consistent with the statutory language which required the provision of suitable accommodation, not necessarily accommodation suitable from the perspective of the claimant.
+That decision was reversed by the Court of Appeal (Jacob, Wilson and Etherton LJJ) [2011] PTSR 1695.
+Etherton LJ, who had granted permission to appeal, also gave the only substantive judgment.
+His essential reasoning is encapsulated in the following passage: 17 The accommodation offered by Camden to the applicant comprised two self contained flats, on the same floor of the building, but a short distance apart, one of which was offered for occupation by the applicant and her sister and the other by her father.
+On any ordinary use of language, that was not the provision of accommodation which the applicant and her father were to occupy together with one another.
+They would be living close by each other, but separate from one another.
+No one could reasonably describe them, in such circumstances, as living together with one another.
+That ordinary meaning of the legislative language is reflected in the wording of section 176(a) which refers to a person who normally resides with the applicant.
+It seems reasonable to suppose that concepts of occupation by the applicant together with another, and residence of the applicant with that other, were intended by Parliament to have a similar meaning.
+It cannot be said, on any ordinary use of language, that persons living in separate self contained flats, however close, and not sharing any communal area, are residing together. (emphasis added)
+He considered and rejected a number of submissions made on behalf of the council, which it is unnecessary to repeat in detail.
+In relation to the judgment in Surdonja, Etherton LJ commented, in para 36, that the reference to separate rooms in the same hotel was quite different from occupation of separate self contained residential units with no sharing of any living areas.
+He added: 38.
+I recognise, without hesitation, the enormous difficulties faced by housing authorities in attempting to discharge their housing duties, including those under Part VII of the 1996 Act.
+Their shortage of housing stock and limited resources and the scale of the problem of homelessness are well known to be acute.
+It is obvious that anything which constrains the ability of the authorities to exercise discretion in the management and application of those limited resources and stock will increase the practical difficulties in discharging their duties.
+The policy underlying the provisions of Part VII is, however, a matter for Parliament to determine.
+That policy is to be ascertained in the usual way by a proper interpretation of the statutory language.
+It is well established and common ground that the policy underlying section 176 of the 1996 Act is to keep families together.
+The natural meaning of the language used in section 176 is that the policy is to be achieved by the provision of accommodation in which the applicant can reside together with those members of the applicants family who normally reside with the applicant, and not by the provision of two or more separate self contained units of accommodation without any sharing of communal living areas.
+To strain the clear language of section 176 in order to enable housing authorities to have greater latitude in the management of their limited resources, by reducing the issue solely to one of suitability in the authoritys view (subject to Wednesbury principles), would be wrong in principle, as a judicial modification of Parliaments policy. (para 38)
+The issues in the appeal
+Mr Arden QC for the council submits that Etherton LJs construction of the statute went beyond what the words justified and would impose an unwarranted burden on the authority.
+He accepted that one of the social purposes behind the statute was to ensure that families could be kept together.
+However, that did not necessarily mean in one unit.
+The correct question to ask was whether the accommodation, even if not in a single unit, was sufficiently proximate to fulfil that social purpose.
+In other words, could the family be described as living together even if accommodated in what was technically more than one unit of accommodation? That interpretation was consistent with the history of the legislation and in particular the judgment of Lord Brightman in Puhlhofer.
+The council was particularly concerned at the suggestion that the statutory requirement could only be satisfied by the provision of communal living areas.
+Such a requirement would be novel to housing law generally, and there was no proper basis for importing it into this Part of the Act.
+Mr Arden referred also to the decision of the House of Lords in Uratemp Ventures Ltd v Collins [2002] AC 301, relating to the definition of a dwelling house let as a separate dwelling in section 1 of the Housing Act 1988.
+It was there held that a single room, even without cooking facilities could constitute a dwelling house as defined in the 1988 Act.
+Lord Millett said: In both ordinary and literary usage, residential accommodation is a dwelling if it is the occupiers home But his home is not the less his home because he does not cook there but prefers to eat out or bring in ready cooked meals. (para 31).
+By analogy, he submitted, neither the word accommodation nor the expression living together can in themselves be read as containing any implication as to the nature of the facilities to be provided.
+For the respondent, Ms Lieven QC supports the judgment of the Court of Appeal.
+She accepts that Etherton LJ may have gone too far in suggesting that there need to be communal living areas.
+However she supports his essential reasoning, based on the ordinary use of language.
+The accommodation must be available for living together.
+That implies there must at least be somewhere in the accommodation where living together can take place.
+The test is objective rather than subjective.
+It is an issue of law on which, at least where the primary facts are not in issue, the court is able to substitute its view for that of the authority.
+The layout must be such as to facilitate normal family life for those within the scope of the section.
+That will normally imply a single unit of accommodation, but she accepts that it may be possible to accommodate a family in two rooms in a hostel, provided there is a space where some degree of shared family life can take place, even if that is limited to some shared cooking facilities.
+Discussion
+This is a short point which does not permit of much elaboration.
+Etherton LJ relied on what he considered to be the ordinary meaning of the statutory language.
+In my respectful view, the ordinary meaning does not support that interpretation.
+The word accommodation in itself is neutral.
+It is not in its ordinary sense to be equated with unit of accommodation.
+It is no abuse of language to speak of a family being accommodated in two adjoining flats.
+The limitation, if any, must therefore be found in the words available for occupation together with the other members of his family.
+The statutory test will be satisfied by a single unit of accommodation in which a family can live together.
+But it may also be satisfied by two units of accommodation if they are so located that they enable the family to live together in practical terms.
+In the end, as Mr Arden submits, this comes down to an issue of fact, or of factual judgment, for the authority.
+Short of irrationality it is unlikely to raise any issue of law for the court.
+This legal issue had not been addressed in terms by the Review Officer, because it had not been raised in that form.
+However, it is reasonably clear how it would have been answered, since the issue of suitability was clearly treated as including the needs of the family as a unit.
+The main obstacle to family living which had been raised was the problem of caring for the father in a separate unit.
+That was considered and discounted by the officer.
+He thought the two flats were sufficiently close for the problem of communication to be no greater than in a house on two levels.
+Ms Lievens submissions seem like an echo of those of counsel for the unsuccessful appellant in Puhlhofer, who submitted that: in order to constitute accommodation the premises must be such as to enable the family unit to reside and carry on the ordinary operations of daily life there . (p 505B).
+Any such qualification was rejected by the House.
+That remains the position, save to the extent that it is implicit in the requirements of suitability or reasonableness, introduced in 1986.
+But those points are not, or are no longer, in issue in the present case.
+Further, Ms Lievens interpretation would produce surprising results.
+It is to be remembered that the statutory definition of overcrowding is not relevant to the definition of accommodation available for occupation, although it is now relevant to suitability.
+Under the Puhlhofer test, a family might be properly accommodated within a single unit even though seriously overcrowded by normal standards.
+But on Ms Leivens submission, the authority would not have been able to improve its position by offering it an additional unit next door.
+It also has to be remembered that the same definition applies to the temporary accommodation to be provided while a decision is made on the merits of the claim.
+It would be odd and potentially onerous if, even while the authority were simply considering the merits of the claimants position, they were unable to house the family in two adjoining units even on a temporary basis.
+Furthermore, if as seems to be accepted, the observations of Scott Baker J in Surdonja were correct, it is hard to see why two rooms on different floors of a hotel or hostel would satisfy the council's duty, but two adjacent flats would not.
+The presence of locked doors between adjacent flats also cannot be critical as rooms in a hotel or hostel would normally have their own lock.
+As to Ms Lievens suggestion that shared cooking facilities might be sufficient, I accept that the observations of Lord Millett in Uratemp (quoted above) may not be of much relevance to what is needed to accommodate a family living together, as opposed to a single person.
+In this case there were cooking facilities in both flats.
+In practice no doubt they would be shared, particularly if as was suggested the father had limited ability safely to cook for himself.
+It would be very odd if removal of a cooker from one flat, so as to leave no option but shared use, would convert what would otherwise be inadequate provision of accommodation into a valid discharge of the authoritys duties.
+Of the other cases to which we were referred, I would mention only one: Langford Property Co Ltd v Goldrich [1949] 1 KB 511.
+The issue under the Rent Acts was whether two self contained flats let together could constitute a separate dwelling house.
+The facts were described in the judgment of Somervell LJ.
+The premises consisted of two flats in a single block, which had previously been separately let.
+They were on the same floor but not next to each other.
+The tenant had taken these two flats as a home for himself and some relatives . his father, mother and a married sister.
+He made no structural alterations (p 521).
+It was held that they could be treated as constituting together a dwelling house.
+The Lord Justice said: In my opinion if the facts justify such a finding, two flats or, indeed, so far as I can see, two houses, could be let as a separate dwelling house within the meaning of the definition.
+What happened here was that the tenant wished to accommodate in his home these relatives to whom I have referred, and he wanted more accommodation than could be found or conveniently found in one flat.
+He therefore took the two flats and made those two flats his home. [Counsel] suggested at one time that there might be some absurdity, if, say, a man took under a single lease (which does not seem very probable) two flats in widely separated districts; but that case can be dealt with when it arises. (p 517)
+Care is always needed in drawing parallels between definitions in different statutory codes.
+However I find this passage helpful in relation to the ordinary use of language in a closely analogous context.
+Somervell LJ saw no difficulty in describing the two flats as accommodation, in which the family were able to make their home.
+He distinguished the position where the flats are in widely separated districts.
+This approach is very similar to that of Scott Baker J in the passage I have cited.
+Submissions were made to us, on the one hand, as to the serious problems authorities would face in meeting their statutory duties, if the Court of Appeals judgment were upheld; and, on the other, as to the risks of allowing authorities too free a hand in the way in which they can accommodate families.
+I find it unnecessary to comment in detail on either aspect.
+Although the problems of housing authorities, particularly in urban areas, are well known, there is no specific evidence to support a submission that this particular requirement would pose unacceptable problems.
+Mr Arden rightly accepted that, if the law was as the Court of Appeal said it was, the authority will have to comply.
+In relation to the second point, I would emphasise the narrowness of the present decision.
+It does not give authorities a free hand.
+It is still a fundamental objective of the Act to ensure that families can live together in the true sense.
+Accommodation, whether in one unit or two, is not suitable unless it enables that objective to be achieved.
+I would therefore allow the appeal and restore the judges order.
+LORD HOPE
+I too would allow the appeal for the reasons given by Lord Carnwath.
+We are all agreed that the test which section 176 of the Housing Act 1996 lays down will be satisfied by a single unit of accommodation in which a family can live together.
+The question is whether the words available for occupation by him together with the other persons referred to can only be so satisfied.
+Do they permit the local authority to accommodate the family in more than one unit of accommodation, so long as it can be said that the units are close enough for them to live together? The words resides with and reside with that follow the phrase I have just quoted serve to emphasise that the accommodation that the test refers to must be such as to enable them all to live together as a family.
+But the test does not go further than that.
+It does not say that it can only be met by the provision of a single unit.
+Parliament has plainly and wisely, if I may adopt Lord Brightmans phrase in R v Hillingdon LBC, Ex p Puhlhofer [1986] AC 484 at 517, refrained from inserting any qualifying words of that kind.
+In this situation the question whether the test has been met must be a question for the local authority.
+There are, nevertheless, two yardsticks that can be applied.
+The first is what must be taken to be the ordinary meaning of the words that the test uses.
+The second is the practical one, which follows on the first.
+Can it be said, in a practical sense, that all the members of the family are living together, although more than one unit is required to accommodate them? The provision of separate units is not, of course, ideal.
+Some measure of inconvenience is bound to result if a single unit cannot be found.
+But Parliament has recognised, by refraining from laying down strict rules, that the situations that may confront the local authority will vary from case to case and that it would be unreasonable to prescribe one solution that must be adopted in all cases.
+The test is not there to be exploited.
+It must be applied reasonably and proportionately.
+So long as that is done, the aim of the test will have been satisfied.
+LADY HALE
+I agree that this appeal should be allowed, for the reasons given by Lord
+Carnwath.
+I understand that this will seem very harsh to a family who had been housed since 2004 in a three bed roomed house under a private sector leasing scheme and were then expected to accept much less spacious accommodation.
+But the suitability of that accommodation is no longer in issue.
+The only issue is whether it is available for Ms Sharif to occupy together with her father and her younger sister.
+If one accepts that it is open to a local authority to accommodate members of a family in separate rooms in the same hostel or hotel, sharing cooking and/or bathroom facilities with others, then one must accept that it is possible to accommodate them in separate small flats like these, provided that the flats are close enough together to enable them to eat and share time together as a family.
+There are passages in the judgment of Etherton LJ which appear to suggest that members of a family are only accommodated together if they have some shared communal living space, in the sense of a shared living room.
+That would, of course, be ideal.
+And, as was pointed out in Birmingham City Council v Ali; Moran v Manchester City Council [2009] UKSC 36, [2009] 1 WLR 1506, what is suitable for a family to occupy in the short term may not be suitable for them to occupy for a longer period.
+But we are not concerned with suitability here.
+To require some communal living space is to impose a standard which is too high to expect local authorities to meet across the whole range of statutory provisions to which the together with criterion applies, including the interim duty in section 188 of the 1996 Act.
+Many of the hotels and hostels currently used to accommodate homeless people do not have a communal living room.
+It is not surprising, therefore, that Mr Arden, on behalf of the local authority, was particularly concerned about this aspect of the Court of Appeals judgment.
+No doubt many of us would wish that there were a much larger supply of affordable housing to enable homeless families to be accommodated in the way which we would ideally wish them to be accommodated.
+But there is not and the law does not require local authorities to meet a minimum standard which in practice it would be impossible for many of them to provide.
+LORD KERR (dissenting)
+A home is where a family lives together.
+The family unit may comprise many generations or it may consist of merely two people.
+But at its heart and foundation lies the family home where its members share experiences and live their lives together.
+This is why the notion of providing accommodation for a family to live as a single unit, not dispersed or living apart, occupies such a central place in the homelessness legislation of the last century.
+The Housing Act 1996 imposes a duty to provide accommodation which is available to be occupied by one person together with members of his or her family.
+The legislation clearly contemplates that the accommodation should be provided to an individual.
+But it is also intended that the accommodation provided to that person should be capable of housing all the members of that persons family together.
+That idea is buttressed by the requirement in section 176 of joint occupation.
+Accommodation is only to be regarded as available for occupation if it is available for occupation by the person to whom it is provided together with any person who normally resides with him as a member of his family.
+There is nothing in the legislation which suggests or implies that the statutory duty will be fulfilled by providing accommodation which, taken in combination with other accommodation, is capable of housing together all the members of the family.
+Nor does the legislation authorise the provision of different units of accommodation which a family, if well disposed to do so, can use on different occasions for shared family activities.
+If living together as a family is to mean anything, it must mean living as a distinct entity in a single unit of accommodation.
+Ms Lieven QC was right to submit that the language of section 176 calls for focus on the accommodation, not on the use to which a particular family might put it.
+The accommodation must be of a character that will allow all members of the family to live together within it.
+She was also right that section 176 imposes an objective requirement, namely, that the accommodation is, as a matter of fact, capable of occupation by the members of the family together.
+Togetherness in this context connotes a combination of people into a condition of unity.
+There must be a single unit of accommodation to provide for that condition.
+The appellant suggested that the local authority may exercise a judgment as to whether a series of units are suitable to permit members of the same family to live in a condition of sufficient proximity so that they can function as a family unit. (One may observe, as an aside, that sufficient proximity is quite different as a concept, and may be diametrically different in practice, from living together.) The appellant advanced this argument by seeking to assimilate the duty under section 176 with other Part 7 duties.
+This is misconceived.
+Ms Lieven was again right in her submission that other Part 7 duties, where they involve an element of discretion, are expressly provided with that facility in the language of the Act.
+The duty under section 176 is quite different.
+It is an obligation to provide accommodation, the physical dimensions of which are sufficient to allow it to be occupied by the person to whom it is made available together with the members of his or her family.
+Some limited judgment may be exercised by the local authority in discharging that duty but that judgment is geared to the essentially factual exercise of deciding if the accommodation meets those physical requirements.
+It has been said that Etherton LJ went too far in suggesting that a feature of the accommodation, to meet the requirements of section 176, had to be the provision of a communal space where family activities could be enjoyed and shared.
+I rather think that Etherton LJ, in his reference to a communal space, was emphasising the lack of such a feature as an indication of the incapacity of the accommodation offered to meet the statutory requirements rather than identifying it as an invariably indispensable requirement.
+In any event, this does not affect the principal issue.
+This is that there should be physical accommodation capable of being occupied as a single unit by the person for whom it is provided together with the members of his or her family.
+It is of course desirable that such a unit should have a communal space where family activities could be enjoyed but I do not consider that this is something which the statute affirmatively requires.
+Much was made by the appellant of the considerable constraints that would be placed on local authorities if they were required to house families in single units and were not afforded the opportunity to exercise judgment as to their accommodation in different units.
+No evidence was provided to support these (to my mind, at least) somewhat unlikely claims.
+No suggestion was made that any local authority had accommodated families in this way on any widespread basis in the past.
+Notably, there is nothing in the Code of Guidance: Homelessness Code of Guidance for Local Authorities (2006) which recommends the practice.
+But if the opportunity is available to house families in different living units, there is every reason to suppose that local authorities, with the pressures that are placed on them to meet housing need, will, perfectly understandably, seek to exploit that opportunity to the fullest extent.
+There is therefore a real risk that one of the principal purposes of the legislation (that of bringing and keeping families together) will be, if not undermined, at least put under considerable strain.
+I would dismiss the appeal.
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+This appeal raises an issue as to the applicability of the equitable doctrine of marshalling.
+Lord Hoffmann explained the doctrine in characteristically pithy terms in In re Bank of Credit and Commerce International SA (No 8) [1998] AC 214, 230 231 as: [A] principle for doing equity between two or more creditors, each of whom are owed debts by the same debtor, but one of whom can enforce his claim against more than one security or fund and the other can resort to only one.
+It gives the latter an equity to require that the first creditor satisfy himself (or be treated as having satisfied himself) so far as possible out of the security or fund to which the latter has no claim.
+It is perhaps also worth setting out how Rose LJ explained the doctrine in
+the same case in the Court of Appeal [1996] Ch 245, 271: The doctrine of marshalling applies where there are two creditors of the same debtor, each owed a different debt, one creditor (A) having two or more securities for the debt due to him and the other (B) having only one.
+B has the right to have the two securities marshalled so that both he and A are paid so far as possible.
+Thus if a debtor has two estates (Blackacre and Whiteacre) and mortgages both to A and afterwards mortgages Whiteacre only to B, B can have the two mortgages marshalled so that Blackacre can be made available to him if A chooses to enforce his security against Whiteacre.
+For the doctrine to apply there must be two debts owed by the same debtor to two different creditors.
+The question in the present case is whether it is open to the respondent, the Serious Organised Crime Agency (SOCA), to invoke the doctrine so as to marshal a charge granted to the Royal Bank of Scotland (RBS) over the home of Mrs Szepietowski and an investment property she owned, with a later charge granted to SOCA over the investment property alone, thereby enabling SOCA to look to Mrs Szepietowskis home to satisfy the sum secured by the second charge. (Pursuant to the Crime and Courts Act 2013, SOCA was replaced by the National Crime Agency with effect from 7 October 2013, but it is more convenient to retain the nomenclature used in the parties argument and most of the documentation in these proceedings).
+The facts giving rise to the issue
+The Settlement Deed
+In 1999, Mr Szepietowski was one of two partners in a firm of solicitors which received a transfer of some US $2.5m which was alleged to represent the proceeds of drug trafficking (although it is right to record that neither Mr Szepietowski nor his wife has ever been charged with any offence, and they both deny any wrongdoing).
+In July 2005, the Assets Recovery Agency (ARA, whose staff, assets and functions were transferred to SOCA in March 2008 pursuant to the Serious Crime Act 2007) obtained an interim receiving order over certain assets acquired with the US $2.5m.
+Three months later, the receiving order was extended to a number of other properties, which had allegedly been acquired with proceeds of mortgage fraud and with income concealed from Her Majestys Revenue and Customs (HMRC).
+In November 2006, the ARA began civil proceedings against Mr and Mrs Szepietowski seeking to confiscate the various properties on the basis that the proceeds of crime could be followed into them, and they accordingly constituted recoverable property within the meaning of section 266 of the Proceeds of Crime Act 2002 (the 2002 Act).
+There were 20 properties in total, and they included (i) Ashford House, Weybridge (Ashford House), which was Mr and Mrs Szepietowskis home, (ii) 2 and 2a Thames Street, Walton on Thames (Thames Street), (iii) 3 and 5 Church Street, Esher (Church Street), (iv) 2, 4, and 6 Torrington Close, Claygate, and (v) 109 Hare Lane, Claygate (together Claygate).
+All these five properties were registered in the name of Mrs Szepietowski, and each of them was subject to an all monies charge in favour of RBS.
+The parties have treated RBS as having a single charge over the five properties (the RBS Charge), and I will do the same.
+Mr and Mrs Szepietowski and the ARA settled the proceedings on terms contained in a consent order dated 16 January 2008, which stayed the ARAs claim save for the purpose of enforcing the terms of settlement.
+Those terms were contained in documents attached to the consent order.
+Most of the terms were in a Deed of Settlement (the Settlement Deed) dated 15 January 2008, which included a schedule which had three annexes.
+Annexe A listed the 20 properties, and recorded the secured creditor of, the value of, the amount charged on, and the equity in, each property.
+Annexe B listed 13, and Annexe C a further two, of those 20 properties, with identical details plus the identity of the registered proprietor. (The figures in the Annexes were in fact somewhat historic, but nothing hangs on that for present purposes).
+The general scheme of the arrangement embodied in the Settlement Deed was that the 13 properties in Annexe B were vested in the Trustee for Civil Recovery (the Trustee) on behalf of the ARA, the Trustee was also to have the two properties in Annexe C vested in him, and the balance of the properties in Annexe A were to remain with their registered proprietors free of the receiving order.
+Any property so vested or retained was to be subject to any existing charges.
+Clause 2.1 of the Settlement Deed provided that it was made in full and final settlement of all of the [ARAs] claims against Mr and Mrs Szepietowski in relation to the properties and the other assets listed in Annexe A and in relation to their tax liabilities.
+One of the properties listed in Annexe A (but not in Annexe B or C) was Ashford House, which was accordingly to revert to Mrs Szepietowski free of the receiving order.
+In Annexe A, Ashford House was recorded as having a value of 2.3m, and charged to The Mortgage Business plc (TMB) and RBS for about 1.46m, but it is clear that this was only the amount outstanding to TMB.
+Ashford House was not in Annexe B or C.
+By clause 3.1 of the Settlement Deed, Mr and Mrs Szepietowski agreed to vest in the Trustee the 13 Transfer Properties listed in Annexe B, and the two Additional Properties listed in Annexe C.
+The Transfer Properties included Thames Street and Church Street.
+They were recorded as valued at 570,000 and 785,000 respectively, and (together with the Additional Properties) as (i) charged to RBS for a debt of about 3.225m and (ii) having equity of about 1.6m.
+Annexe C contained the two Claygate properties, at Torrington Close and Hare Lane, which were recorded as valued at 2.67m and 800,000 respectively, and, together with Thames Street and Church Street, as charged to RBS for a debt of about 3.225m, and having equity of about 1.6m.
+The valuations of the Additional Properties, ie of Claygate, in Annexe C suggested that the liability to RBS could be fully met from their sale, and indeed the parties anticipated that the ARA would, in effect, be able to realise the Transfer Properties free of any liability to RBS.
+They recorded at the end of Annexe B that this would have enabled the ARA to recover just over 5.4m from the sale of the Transfer Properties after clearing all mortgages thereon.
+At the time of the settlement, Mrs Szepietowski was negotiating to sell the Additional, Claygate, Properties, and clauses 4.1 4.3 of the Settlement Deed enabled and required her to proceed with the proposed sale.
+If she had not bindingly agreed to dispose of Claygate within six months, then, by clause 4.4, she had to elect whether Claygate should remain vested in the Trustee, who would be free to dispose of them, or be transferred to her by the Trustee.
+Clause 4.5 of the Settlement Deed is of some importance for present purposes, and it was in these terms (with paragraphs added for convenience): (i) If the Trustee wishes to sell [Thames Street and Church Street] (the Remaining RBS properties) before the Additional [Claygate] Properties are sold then [Mr and Mrs Szepietowski] agree that, if [RBS] consent, the [RBS Charge] over these properties and the Additional Properties in favour of [RBS] shall be transferred to the Additional Properties only. (ii) If [RBS] does not so consent then [Mrs] Szepietowski will grant a charge to the Trustee for the sums paid by the Trustee to [RBS] from the sale proceeds of the Remaining RBS properties.
+Clause 4.6 of the Settlement Deed contained an agreement that the total funds from the sale of the Additional Properties [would] be used in priority to the funds from the sale of the Remaining RBS Properties [ie Thames Street and Church Street] in satisfaction of the [RBS] Charge.
+Clause 4.7 provided that, on the sale of Claygate, the proceeds would be used to pay off what was owing under the RBS Charge insofar as it was registered against those properties, and any balance would be fully accounted for by the Trustee to [Mrs] Szepietowski without deduction or set off.
+The Settlement Deed contained a number of other provisions (including, in clause 13.4 an obligation on Mr and Mrs Szepietowski each to pay HMRC 687,500 in respect of back tax and national insurance payments in respect of the 14 tax years ending 2006/2007), but it is unnecessary to refer to them for present purposes.
+Subsequent events
+Towards the end of January 2008, Church Street, Thames Street and Claygate were duly vested in the Trustee, subject to the RBS Charge.
+However, the sale of Claygate did not proceed as anticipated.
+The Trustee implemented clause 4.5(i) of the Settlement Deed, and marketed Church Street and Thames Street, which were sold in April 2008 for 715,000 and 560,000 respectively.
+RBS declined to release them from the RBS charge, and consequently the proceeds of sale were paid over to RBS.
+It was becoming clear that the sum likely to be realised on the sale of Claygate (when added to the proceeds of sale of Church Street and Thames Street) would scarcely be sufficient to clear the RBS Charge.
+This state of affairs was in marked contrast to the common expectation of the parties at the time of the settlement, when they had anticipated that the proceeds of sale of Claygate alone (estimated in Annexes A and C to be worth around 3.54m) would be sufficient to clear the debt to RBS (recorded in the Annexes as being about 3.225m).
+A dispute then arose as to the properties over which Mrs Szepietowski was obliged to grant SOCA (who had by now replaced the ARA and the Trustee) a charge pursuant to clause 4.5(ii) of the Settlement Deed.
+In March 2009, Henderson J decided that the charge was to be over Claygate as Mrs Szepietowski contended, and not over Ashford House as well, as SOCA argued: [2009] EWHC 655 (Ch).
+At that hearing, Mrs Szepietowski made it clear that she wished Claygate to be vested in her pursuant to her obligation to elect in clause 4.4 of the Settlement Deed see para 35 of the judgment.
+Accordingly, as he recorded in the following paragraph, Henderson J ordered that Claygate be re transferred by the Trustee to Mrs Szepietowski, and that she grant a charge over them to SOCA.
+Claygate was duly revested in Mrs Szepietowski on 4 September 2009, and on the same day she granted a charge over Claygate to SOCA (the 2009 Charge).
+Clause 1 of the 2009 Charge was concerned with interpretation, and included a definition of Secured Amount as being just over 1.24m, together with any sums due to SOCA under its terms.
+The figure of 1.24m was equal to the net proceeds of sale of Thames Street and Church Street, which had been paid in full to RBS under the RBS Charge, but which SOCA and the Szepietowskis had hoped would be paid to SOCA under clause 4.5(i) of the Settlement Deed.
+Clause 2 of the 2009 Charge was headed Covenants, and clause 2.1 was a covenant by Mrs Szepietowski that on completion of any sale of the Charged Property effected by her, after paying the costs of sale, she would apply the proceeds of sale in settlement of the Secured Amount.
+Clause 2 also contained provisions which sought to ensure that any such sale would be effected at the best price.
+Clause 3 of the 2009 Charge was headed Charges, and, under it, Mrs Szepietowski charged the Charged Property and the proceeds of sale thereof by way of legal mortgage to SOCA as continuing security for the settlement of the Secured Amount.
+Clause 7.1 provided that the Secured Amount shall become due and the security conferred by this Charge will become immediately enforceable and the power of sale and other powers conferred by section 101 of the Law of Property Act 1925 will be immediately exercisable after four months or, if earlier, on any breach of the 2009 Charge by Mrs Szepietowski, or her death or insolvency.
+Clause 7.2 provided that for the avoidance of doubt, clause 7.1 did not constitute a covenant by [Mrs Szepietowski] to pay the Secured Amount to [SOCA].
+Around December 2009, Mrs Szepietowski sold Claygate for a total of 2.33m, substantially less than had been anticipated two years earlier.
+The 2009 Charge was, of course, a second charge over Claygate, as it was still subject to the RBS Charge, and when the net proceeds of sale of Claygate were used to pay off RBS pursuant to the RBS charge, the relatively derisory figure of 1,324.16 was all that was left to satisfy SOCAs rights under the 2009 Charge.
+SOCAs marshalling claim
+The competing contentions
+SOCAs case is that the classic requirements of marshalling are satisfied in the present case in light of the facts that: i) ii) Claygate and Ashford House were both owned by Mrs Szepietowski, Claygate and Ashford House were both subject to the RBS charge, which secured the moneys owing to RBS by Mr and Mrs Szepietowski, iii) Claygate, but not Ashford House, was subject to the later 2009 Charge in favour of SOCA, which was a second mortgage which secured some 1.24m, iv) RBS was repaid the debt owing to it out of the sale proceeds of Claygate, while Ashford House remains unsold, and The 1.24m secured by the 2009 Charge remains unpaid (save to a minimal extent) despite the sale of Claygate. v) Accordingly, SOCA contends that, as second mortgagee of Claygate, which was subject to a first mortgage, together with Ashford House, in favour of RBS, it is entitled to look to Ashford House in order to obtain payment of the sum which was secured by the 2009 Charge on Claygate, as the proceeds of sale of Claygate were used to pay off what was due to RBS.
+Mrs Szepietowskis argument to the contrary has two strands.
+The first strand raises the contention that, in the light of the terms of the Settlement Deed and the 2009 Charge, SOCAs marshalling claim cannot be maintained.
+The second strand is that, even if marshalling could otherwise be justified, it cannot succeed, as the property against which SOCAs marshalling claim is focussed, namely Ashford House, is and was the home of Mrs Szepietowski, the mortgagor, whereas the property against which the RBS Charge was enforced is not and was never her home.
+The decisions of the courts below
+Henderson J held that SOCAs marshalling claim was well founded and the Court of Appeal (Arden, Sullivan and Patten LJJ) agreed with him: see [2010] EWHC 2570 (Ch) and [2011] EWCA Civ 856 respectively.
+The judgments in both courts concentrated on the first strand of Mrs Szepietowskis argument, and did not consider the second (because it was not raised).
+Henderson J had held in his 2009 judgment [2009] EWHC 655 (Ch), that Ashford House was excluded from the ambit of the charge envisaged by clause 4.5(ii) of the Settlement Deed, in the light of the terms of the Settlement Deed, and in particular clauses 4.5 and 4.6.
+However, in his subsequent judgment, he concluded that there was nothing in the Settlement Deed or the 2009 Charge which expressly provided, or necessarily implied, that SOCAs right to marshal was to be excluded: see [2010] EWHC 2570 (Ch), paras 27 and 37.
+In particular, he did not consider that clauses 4.5 and 4.6 of the Settlement Deed or the fact that there was no debt due to SOCA from Mrs Szepietowski under the 2009 Charge, precluded marshalling.
+He held that a debt due to SOCA arose from the creation of the charge, if not earlier, albeit one limited to satisfaction from the proceeds of the sale of Claygate para 46.
+He also held that there was no other reason to deprive SOCA of its prima facie right to marshal para 49.
+The Court of Appeal, in a judgment given by Patten LJ, agreed, and approved the reasoning, as well as the conclusion, of the Judge, although, as is frequently the position, they did not focus on all the same arguments as the Judge.
+In particular, they concluded that clause 2.1 of the Settlement Deed did not preclude marshalling: (see [2011] EWCA Civ 856, para 48), and that marshalling was not precluded by the fact that it was SOCA and Mrs Szepietowski, rather than RBS, who decided to sell the Claygate properties, Thames Street and Church Street: (see at para 52).
+Nor did the Court of Appeal consider that marshalling was precluded by the limited nature of the charge which Mrs Szepietowski gave, and the absence of any underlying obligation to pay the Secured Amount; that was treated as merely going to the discretion whether to exercise the equitable power to marshal: (see at para 54).
+Mrs Szepietowski now appeals to this court.
+Marshalling: the principles
+As Paul Ali explains in his monograph, Marshalling of Securities: Equity and the Priority Ranking of Secured Debt (1999), p 12, para 2.02, the earliest surviving references to marshalling appear to be in two late 17th century cases, Bovey v Skipwith (l671) 1 Ch Cas 201 and Povyes Case (1680) 2 Free 51.
+The principle was then considered in a number of 18th century cases, which Ali lists in footnote 6 on p 13.
+A relatively early exposition of the law of marshalling may be found in the judgment of Lord Hardwicke LC in Lanoy v Duke & Duchess of Atholl (1742) 2 Atk 444, 446: Is it not then the constant equity of this court that if a creditor has two funds, he shall take his satisfaction out of that fund upon which another creditor has no lien .
+Suppose a person, who has two real estates, mortgages both to one person, and afterwards only one estate to a second mortgagee, who had no notice of the first; the court, in order to relieve the second mortgagee, have directed the first to take his satisfaction out of that estate only which is not in mortgage to the second mortgagee, if that is sufficient to satisfy the first mortgage, in order to make room for the second mortgagee, even though the estates descended to two different persons .
+It is also worth referring to the judgment of Lord Eldon LC in Aldrich v
+Cooper (1803) 8 Ves Jun 382, 395, where he postulated a case where: two estates [were] mortgaged to A; and one of them mortgaged to B. He has no claim under the deed upon the other estate.
+It may be so constructed that he could not affect that estate after the death of the mortgagor.
+But it is the ordinary case to say a person having two funds shall not by his election disappoint the party having only one fund; and equity, to satisfy both, will throw him, who has two funds, upon that, which can be affected by him only; to the intent that the only fund, to which the other has access, may remain clear to him.
+Marshalling has thus been allowed to a creditor, in a case where (i) his debt is secured by a second mortgage over property (the common property), (ii) the first mortgagee of the common property is also a creditor of the debtor, (iii) the first mortgagee also has security for his debt in the form of another property (the other property) (iv) the first mortgagee has been repaid from the proceeds of sale of the common property, (v) the second mortgagees debt remains unpaid, and (vi) the proceeds of sale of the other property are not needed (at least in full) to repay the first mortgagees debt.
+In such a case, the second mortgagee can look to the other property to satisfy the debt owed to him.
+Consider a case where the mortgagor owes 2m to the first mortgagee and 2m to the second mortgagee, the common property and the other property are each worth 3m, and the common property is sold, resulting in repayment in full of the first mortgagee and a reduction of 1m in the debt of the second mortgagee.
+The mortgagor still owes 1m to the second mortgagee, whether or not the second mortgagee can marshal.
+The only effect of the second mortgagee being able to marshal would be that it could directly enforce its outstanding 1m debt against the other property rather than falling back on the status of unsecured creditor.
+This emphasises the point that marshalling only really comes into its own where the mortgagor/debtor is insolvent: marshalling improves the position of the second mortgagee as against the unsecured creditors of the debtor, not as against the debtor herself.
+Of course, the fact that the second mortgagee could proceed directly against the other property, without the need for a judgment and a charging order, is a minor disadvantage to the mortgagor of the second mortgagee being able to marshal.
+But Ali is correct in his statement (op cit para 4.48) that, at least in the cases where it has been held to apply, Marshalling is neutral in its impact upon the residue available to the debtor following the discharge of its creditors claims.
+At one time judges expressed themselves in a way which suggested that a second mortgagee with the right to marshal could compel the first mortgagee to sell the other property to pay off the debt he was owed before having recourse to the common property.
+Indeed, Lord Eldon LC referred to the second mortgagee ha[ving] a right in equity to compel the first mortgagee to resort to the other in Aldrich v Cooper 8 Ves Jr 382, 388.
+However, it soon became well established that the first mortgagee had the right to have recourse to any of his securities which first come to hand and to realis[e] his securities in such manner and order as he thinks fit: per Wood V C in Wallis v Woodyear (1855) 2 Jur (NS) 179, 180, and Parker J in Manks v Whiteley [1911] 2 Ch 448, 466 respectively.
+The principle behind the doctrine of marshalling has been identified by Story in his Commentaries on Equity Jurisprudence, 2nd ed (1892), pp 416 417, in these rather broad terms: The reason is obvious . [By] compelling [the first creditor with the two securities] to take satisfaction out of one of the funds no injustice is done to him .
+But it is the only way by which [the second creditor with one security] can receive payment.
+And natural justice requires, that one man should not be permitted from wantonness, or caprice, or rashness, to do an injury to another.
+In short we may here apply the common civil maxim: Sic utero tuo ut non alienum laedas; and still more emphatically, the Christian maxim, Do unto others as you would they should do unto you.
+As I see it, there are also good practical reasons for equity adopting the doctrine, namely the unattractive and adventitious benefit which would otherwise be accorded to the first mortgagee.
+If marshalling was not available to the second mortgagee, the first mortgagees free right to choose the property against which he enforced could have substantial value.
+In effect, he could auction that right as between the second mortgagee (who would be prepared to pay him to enforce against the other property) and the unsecured creditors of the mortgagor (who, especially where the mortgagor was actually or potentially insolvent, would be prepared to pay him to enforce against the common property).
+Further, it appears to be somewhat arbitrary that, if he could not marshal, a second mortgagee who had sufficient resources and was prepared to take any associated risk, could redeem the first mortgage (on the basis of redeem up foreclose down see Megarry & Wade, The Law of Real Property, 8th ed, paras 25 110 to 113), and then protect its position as second mortgagee by selling the other property to redeem the first mortgage, before selling the common property.
+So far as the limits of the applicability of the doctrine of marshalling are concerned, there are a number of cases where it has been held not to be applicable eg because there is no common debtor or where a third party mortgagee may be prejudiced.
+However, we were taken to no case of specific relevance to the first strand of Mrs Szepietowskis argument.
+Guidance of a very general nature may, however, be found in what Lord Eldon LC said in Ex p Kendall (1811) 17 Ves 514, 527: The equity is clear upon the authorities, that, if two funds of the debtor are liable to one creditor, and only one fund to another, the former shall be thrown upon that fund, to which the other cannot resort; in order that he may avail himself of his only security: where that can be done without injustice to the debtor or the creditor: but that principle has never been pressed to the effect of injustice to the
+common debtor
+On the second strand of Mrs Szepietowskis argument, there is Australian authority to support the proposition that marshalling is not available to a second mortgagee where the first mortgagee is contractually bound to look first to the other property to satisfy the debt due to him see In re Holland (1928) 28 SR (NSW) 369 and Miles v Official Receiver (1963) 109 CLR 501.
+This seems to me to be correct, at least where the contract is with the mortgagor or with someone else with an interest in the other property, because the basis of the right to marshal is the arbitrariness of allowing the first mortgagees decision as to which asset to enforce against to affect the second mortgagees rights.
+It also seems to me that the Australian cases accord with the approach of the Court of Appeal in Webb v Smith (1885) 30 Ch D 192.
+The first strand of Mrs Szepietowskis argument
+As the oral argument developed, it became apparent that the first strand of Mrs Szepietowskis argument as to why SOCA should be held to be unable to marshal involved two somewhat different contentions.
+Her first contention is that the simple fact that the 2009 Charge does not secure a debt from her to SOCA, or indeed any debt at all, means that there is no right in SOCA to marshal as it seeks to do.
+Alternatively, she contends that the provisions of the Settlement Deed and the 2009 Charge, coupled with the circumstances in which they were executed, demonstrate that marshalling is precluded.
+I shall take those two contentions in turn.
+The absence of an underlying debt from Mrs Szepietowski to SOCA
+The first contention raises a point on which we were told by both counsel that there is no authority.
+In all the cases (save in the so called surety exception discussed by Ali, op cit, chapter 8) where marshalling has been allowed, both the first mortgagee and the second mortgagee have been creditors of the same debtor/mortgagor.
+However, in this case, at least according to her argument, Mrs Szepietowski never owed any money to SOCA other than such sum, if any, as was payable to SOCA out of the proceeds of sale of Claygate after payment of all prior claims, and that sum has been paid to SOCA; indeed, according to her case, the 2009 Charge does not secure a debt from anybody, other than that contingent sum.
+Although that proposition was challenged by SOCA, I consider that it is correct.
+The terms of the Settlement Deed are concerned with the ownership of, and rights over, property, and not with creating or acknowledging debts (other than Mr and Mrs Szepietowskis debts to HMRC).
+And the 2009 Charge is notable for the absence of any provision which creates or acknowledges an obligation on Mrs Szepietowski, the mortgagor, to pay the Secured Amount.
+All that she is obliged to do in relation to that sum under clause 2 is to use the proceeds of sale of Claygate towards settling it, after any prior obligations have been met.
+It is true that clause 7.1 refers to the Secured Amount becom[ing] due, but it does not say from whom, and its language is readily explained by the terms of section 101 of the Law of Property Act 1925, to which it refers.
+In any event, SOCAs contention that the 2009 Charge secured a debt due from Mrs Szepietowski is given its quietus by the unambiguous terms of clause 7.2.
+It therefore appears clear to me that the 2009 Charge did not create, or acknowledge the existence of, any debt from Mrs Szepietowski, or anyone else, to SOCA, save that it rendered her liable for a contingent debt, in that she was bound to pay SOCA an amount of up to 1.24m out of such sum, if any, as remained from the proceeds of sale of Claygate after the RBS Charge was paid off.
+The notion that the 2009 Charge did not impose or acknowledge an obligation to pay the Secured Amount on the part of Mrs Szepietowski is also supported by (i) the fact that the Settlement Deed, from which it originates, did not impose such a duty, (ii) the terms of clause 4.5 of that Deed which provides for the 2009 Charge (a point dealt with more fully in para 69 below), and (iii) the fact that both the Settlement Deed and the 2009 Charge originated from proceedings under the 2002 Act, whose purpose is to recover specific properties not to recover a sum of money.
+The fact that the 2009 Charge involved giving SOCA security over Claygate without an underlying debt being owed by the mortgagor (or anyone else), save the contingent debt identified in para 42 above, throws up an intriguing problem in relation to the right to marshal.
+There is plainly a difference between marshalling in the normal case, where the mortgage to the second mortgagee is security for a debt due from the mortgagor to the second mortgagee, and marshalling in a case such as the present, where there is no underlying debt from the mortgagor (or anyone else) to the second mortgagee (other than a contingent liability to pay a sum out of the net proceeds of sale of the common property).
+As explained in paras 32 33 above, in the normal case, marshalling does not result in the liabilities of the mortgagor being increased after the sale of the common property.
+However, if the second mortgagee can marshal in a case such as this, where there is no underlying debt due to it from the mortgagor, the mortgagors liabilities would be increased at least once the common property has been sold by the first mortgagee.
+Thus, (i) if SOCA can marshal in this case, Ashford House would effectively be subject to a second mortgage (ranking after TMBs first mortgage see para 8 above) securing just under 1.24m, and Mrs Szepietowski would have to pay that sum to SOCA or lose her home, whereas (ii) if SOCA cannot marshal, then Ashford House would be free of any second mortgage, and Mrs Szepietowski would be free of any further liability to SOCA.
+We are therefore called on to decide whether, in a case where there is no underlying debt from the mortgagor to support the second mortgage (save the contingent debt described at the end of para 42 above), (i) the second mortgagee can invoke the doctrine of marshalling because the basis for its application, as described in paras 35 and 36 above, exists, or (ii) the second mortgagee should not be able to marshal as there is no underlying debt from the mortgagor to the second mortgagee after the sale of the common property and the distribution of its proceeds of sale, and there is a fundamental, if unspoken, requirement for the doctrine to be applicable that there is a debt owing to the second mortgagee at the time when he seeks to marshal.
+I refer to the alleged requirement being unspoken, as there is no judgment
+which deals with this question, although many of the explanations of marshalling assume that the second mortgagee is owed an underlying debt by the mortgagor (for instance, the passages quoted from Lord Hoffmann and Rose LJ in paras 1 and 2 above refer to a debt owing to the second mortgagor), and other definitions do not (see per Lord Hardwicke LC and Lord Eldon LC in paras 29 and 30 above respectively).
+In the end, I do not find any these observations of assistance on this issue because they were all made in the context of cases where there was an underlying debt due from the mortgagor which was secured by the second mortgage.
+The judges concerned were simply not addressing their minds to the point at issue in this case.
+I accept that it can fairly be said that the justification for marshalling,
+namely that the extent or value of the second mortgagees rights should not depend on which of the first mortgagees securities is realised first, and that the underlying reasons for marshalling identified in paras 35 and 36 above, apply in the present case.
+I also accept that the only difference between the result of marshalling in the cases where it has been permitted and in the present case is the identity of the party who is prejudiced by the marshalling (namely the unsecured creditors in the previous cases, as against the debtor in the present case).
+Accordingly, I acknowledge the force of Lord Carnwaths reasoning in paras 101 104 below.
+Nonetheless, despite Miss Harmans attractively developed argument to the contrary, I have concluded that as a matter of principle, marshalling is not available to a second mortgagee where, as here, the common property does not secure a debt due from the mortgagor, but is merely available as security for what the second mortgagee can extract from that property.
+My reasoning can be put in a number of different ways, but in the end they amount to much the same thing, namely that, in such a case, there is simply nothing, in particular no debt due from the mortgagor, from which the right to marshal can arise, once the common property has been sold and the proceeds of sale distributed in accordance with the legal priorities.
+As already explained, the only debt which can be said to be due from the mortgagor to the second mortgagee in a case such as this is the sum (if any) which is left from the proceeds of sale of the common property after the costs of sale and the debt due to the first mortgagee have been paid off: see clause 2.1 (supported by clause 7.2) of the 2009 Charge.
+Once that (admittedly derisory) sum was paid to SOCA, there was nothing due from Mrs Szepietowski (or anyone else) to SOCA, so it is difficult to see on what basis SOCA can say that it is entitled to enforce a right to be paid out of another property owned by Mrs Szepietowski.
+It is one thing for a second mortgagee, who was a secured creditor of the mortgagor and has not been paid in full (or at all) from the sale of the secured property, to be able to look to other property of the debtor to discharge a debt which remains outstanding.
+It is quite another for a second mortgagee with no outstanding debt due from the mortgagor to be able to look to another property of the mortgagor to realise what it hoped to raise from the sale of the secured property.
+In my judgment, once there is no debt due from the mortgagor to the second mortgagee, the second mortgagee has no right to marshal.
+In this case, therefore, it follows that SOCA can have no right to marshal.
+My conclusion receives support if one considers the position where the mortgagor is insolvent.
+As explained in paras 32 33 above, a second mortgagee, whose mortgage secured a debt due to him from the mortgagor would (if he could marshal) either be treated as a secured creditor whose security for the debt was the other property to the detriment of her unsecured creditors, or (if he could not marshal) would join the ranks of the unsecured creditors of the mortgagors estate in respect of his debt.
+If a second mortgagee with no underlying debt from the mortgagor could in principle marshal, then, were the mortgagor to be insolvent, the second mortgagee would either be treated, in effect, as a secured creditor whose security was the other property, whereas, if the second mortgagee could not marshal in such a case, it would have no claim at all against the mortgagors estate.
+There would be nothing surprising about the latter possibility, whereas it would be surprising if marshalling could create what for all intents and purposes was a secured debt, when, in the absence of marshalling, there would be no debt at all.
+My conclusion is also supported if the right to marshal is an incident of the second mortgage when it is granted, which appears to me to be logical and in accordance with the Judges approach: see [2010] EWHC 2570 (Ch), paras 27 and 37, as summarised in para 25 above.
+It is normally easy to imply a common intention on the part of the parties to the second mortgage (the mortgagor and the second mortgagee) that there should be a right to marshal where the second mortgage secures a debt due from the mortgagor, because such a right is to the manifest advantage of the second mortgagee and of no significance either way to the mortgagor (see paras 32 33 above).
+However, where there is no underlying debt due from the mortgagor (other than what the second mortgagee can extract from the common property), it would be plainly contrary to the mortgagors interest that the second mortgagee should be able to marshal; accordingly, normal principle would suggest that, at least in the absence of special facts, there should be no right to marshal in such a case.
+I should briefly revert to the notion that the absence of an underlying debt should be a factor which goes to the discretion of the judge when deciding whether to permit the second mortgagee to marshal, as suggested by the Court of Appeal at para 54 of its judgment.
+Not only does that seem to me to be wrong in principle, as already explained.
+It also appears to involve a recipe for uncertainty.
+Marshalling is an equitable right (or remedy), but that does not mean that its exercise should depend too readily on the individual merits of the case.
+It should, so far as possible, be governed by clear principles so mortgagors and mortgagees know where they stand.
+Accordingly, I conclude that, where the second mortgage does not secure a debt owing from the mortgagor to the second mortgagee, the right to marshal should not normally exist once the common property is sold by the first mortgagee and the proceeds of sale distributed, because there would be no surviving debt owing from the mortgagor to the second mortgagee.
+In such a case, equity should proceed on the basis that the second mortgagee normally takes the risk that the first mortgagee will realise his debt through the sale of the common property rather than the sale of the other property.
+I draw some support from the observation of Lord Eldon LC in Kendall 17
+Ves 514, 527 that the doctrine of marshalling has never been pressed to the effect of injustice to the common debtor.
+Of course, this can be said to beg the question in the sense that it may be a matter of debate as to whether it would wreak an injustice on the mortgagor in a case such as this to permit marshalling.
+However, if one bears in mind that marshalling, as it has been understood normally, involves no net increase in the liability of the debtor/mortgagor when the second mortgagees right of marshalling arises, I consider that the observation tends to support the notion that the doctrine of marshalling does not normally apply where the second mortgagee does not secure a debt from the mortgagor.
+Finally on this aspect, I have intentionally used the word normally in paras 56 57 above, because marshalling is an equitable remedy.
+Accordingly, whether it is available in any particular case may depend on the circumstances, just as it may depend on the circumstances of a case where it would prima facie apply, whether it actually does apply.
+Notwithstanding what I have said in para 55, it would be wrong to rule out the possibility of an exceptional case, where the generalisations in para 56 or para 57 would not apply, although absent express words which permit or envisage marshalling, I find it hard to conceive of such a case.
+As I understand it, if, as I have concluded, marshalling is not normally open to a second mortgagee where there is no underlying debt, SOCA does not contend that this is an exceptional case where it would be open to it.
+Therefore Mrs Szepietowskis remaining two contentions need not be addressed.
+However, it is right to express a view upon them, as they were fully argued and may be of some significance in future marshalling disputes.
+The terms of the Settlement Deed and the 2009 Charge
+If, contrary to the above conclusion, marshalling should be available to a
+second mortgagee where there is no underlying debt from the mortgagor in the same way as where there is such an underlying debt, I would still have allowed Mrs Szepietowskis appeal on the basis of the other contention advanced as part of the first strand of her argument.
+As explained in para 25 above, the courts below approached the issue on the basis that marshalling should not be excluded unless the parties expressly agreed that it should be, or unless its exclusion was necessarily implied by the terms of the 2009 Charge.
+Marshalling is an equitable remedy or right, and it should not therefore be available to a second mortgagee in circumstances where it would be inequitable to allow it.
+While there is considerable overlap between the test applied by the courts below and inequitability, and while, as is reflected in para 55 above, any court must be careful to avoid an approach to equity which is too open textured or subjective, I consider that the approach of the courts below involved setting too high and too rigid a hurdle for a party seeking to mount a case against marshalling.
+In my view, the correct approach is to ask whether, in the perception of an
+objective reasonable bystander at the date of the grant of the second mortgage, taking into account, in very summary terms, (i) the terms of the second mortgage, (ii) any contract or other arrangement which gave rise to it, (iii) what passed between the parties prior to its execution, and (iv) all the admissible surrounding facts, it is reasonable to conclude that the second mortgagee was not intended to be able to marshal on the occurrence of the facts which would otherwise potentially give rise to the right to marshal.
+It is true that the possibility of marshalling can only arise some time after
+the mortgage is granted (and indeed that it may never arise), and it is true that facts could arise after the second mortgage which render it inequitable that the second mortgagee should have (or should not have) the right to marshal.
+However, it seems to me that the starting point for deciding whether there should be a right to marshal must be when the second mortgage is created.
+In the absence of relevant subsequent developments, the question must be judged as at that date.
+Furthermore, it appears to me to accord with principle that the question must be judged objectively, based on what passed between, was known to, and would consequently have been reasonably understood by, the parties.
+In my view, a combination of factors in this case establish that, even if, given the facts summarised in para 22 above, the normal presumption would be that SOCA, as the second mortgagee, should be entitled to marshal, it should not be able to do so in this case.
+First, the 2009 Charge was entered into to give effect to a claim under the 2002 Act.
+As Lord Carnwath points out in his judgment, ARAs (and now SOCAs) rights and powers are purely statutory in nature.
+For present purposes, its task under the 2002 Act was to identify, to claim and, through a court order, to obtain recoverable property see sections 243, 266, 276 and 304 310.
+SOCAs rights under the 2002 Act were thus against specific assets of a respondent, and there could have been no question of a debt being created in favour of the ARA against a person such as Mrs Szepietowski, unless, of course, she had agreed to it, which, as explained above, she had not.
+Accordingly, it seems unlikely that the parties to the 2009 Charge could have intended SOCA to have a claim against a property which was not recoverable under the 2002 Act.
+Secondly, there is the point that it would potentially be to the disadvantage of one of the parties to the 2009 Charge, namely Mrs Szepietowski, if the other party, SOCA, had the right to marshal.
+Of itself, this cannot be decisive, but, because there is no underlying debt from the mortgagor, this would make the normal presumption in favour of marshalling less strong than it would be in the normal case where there is an underlying debt due from the mortgagor. (This is not inconsistent with the point made in para 55 above, because, for present purposes, I am assuming, contrary to my earlier conclusion, that the absence of an underlying debt does not vitiate the right to marshal).
+Thirdly, as explained in paras 7 and 8 above, Ashford House was included in Annexe A, but not in Annexe B or C, to the Settlement Deed, so it is clear that the parties intended it to remain with Mrs Szepietowski, unencumbered by any liability to SOCA.
+It would therefore be somewhat curious if the effect of the 2009 Charge, which was executed pursuant to the Settlement Deed, should have the result of encumbering Ashford House with a liability to SOCA.
+Fourthly, in the Annexes, the parties did not treat Ashford House as subject to the RBS Charge, unlike Church Street, Thames Street and Claygate (see paras 8 and 9 above).
+Given that it is fundamental to SOCAs marshalling claim that Ashford House was subject to the RBS Charge, it is again somewhat curious that this claim arises out of a charge executed pursuant to a contract which plainly proceeds on the assumption that it was not.
+Fifthly, particularly in the context of these three points, the fact that the Settlement Deed is expressed to be in full and final settlement of all claims SOCA may have relating to the properties in Annexe A (see para 8 above) is not entirely easy to reconcile with a subsequent marshalling claim by SOCA against Ashford House.
+Sixthly, the effect of clauses 4.4 and 4.5 of the Settlement Deed, as explained in paras 11 and 12 above, is that Mrs Szepietowski would only have had to grant a charge over Claygate if three separate conditions were satisfied, namely (i) under clause 4.5(i), SOCA decided it wanted Thames Street and Church Street sold, (ii) under clause 4.5(ii), RBS refused to release those properties from the RBS Charge, and (iii) under clause 4.4, Mrs Szepietowski decided to have Claygate vested back in herself (as she could scarcely have granted SOCA a charge over a property it owned).
+If any of these three requirements had been unsatisfied, there would have been no 2009 Charge, and, of course, without that charge there would have been no possibility of marshalling, and therefore no possibility of SOCA claiming that any sum was secured in its favour over Ashford House.
+It seems particularly unlikely that SOCAs ability to mount such a claim would have been intended to depend on conditions (i) or (iii).
+Seventhly, over and above these points on the contractual documentation, there is the point that Ashford House was Mrs Szepietowskis home.
+Common sense suggests that it was one of the relatively few properties in Annexe A which was not vested in the Trustee, because of that fact.
+The Settlement Deed represented a compromise which left Mr and Mrs Szepietowski with some properties, and it seems very likely that they would have been particularly keen to keep their home, and that SOCA accepted this in the Settlement Deed.
+That does not fit comfortably with the idea that SOCA and Mrs Szepietowski can have intended that a document subsequently executed pursuant to that Deed should lead to a substantial potential charge over that home.
+In my view, the combination of these various factors establishes that, even if a second mortgagee whose mortgage secures no underlying debt from the mortgagor is entitled to marshal, the contractual documentation and background facts in this case establish that it would be inequitable for SOCA to be permitted to marshal against Ashford House.
+To permit SOCA to marshal would involve flying in the face of the understanding of both parties to the mortgage said to give rise to the right, namely the 2009 Charge, as revealed in the 2009 Charge itself, and the Settlement Deed from which it originates and indeed to which it refers in its preamble.
+The second strand of Mrs Szepietowskis argument
+Mrs Szepietowski contends that the fact that Ashford House is her home means that RBS would not, in reality, have been able to enforce its rights under the RBS Charge against Ashford House before it could have enforced its rights against Claygate.
+Accordingly, in reliance on the principle described in para 38 above and the Australian decisions there cited, In re Holland 28 SR (NSW) 369 and Miles v Official Receiver 109 CLR 501, she contends that marshalling would not, in any event, be available to SOCA.
+This argument relies on two separate legal points.
+The first is the protection given by section 36 of the Administration of Justice Act 1970 (section 36) to defaulting mortgagors of dwelling houses where the mortgagee is claiming possession.
+The second point is the respect which is afforded to an individuals home under article 8 of the European Convention on Human Rights (article 8).
+In my view, there is nothing in either of these points.
+The only thing which can be made of the fact that the marshalling claim relates to Mrs Szepietowskis home is the point made in para 71 above.
+Assuming in Mrs Szepietowskis favour that section 36 and/or Article 8 would have rendered it more difficult for RBS to enforce the RBS Charge against Ashford House than against Claygate, that would be wholly insufficient to prevent SOCA being able to marshal, if it was otherwise entitled to do so.
+Where the requirements of the right to marshal are otherwise present, it would require a contractually enforceable obligation, or something close thereto, on the first mortgagee to enforce against the common property in priority to the other property for the second mortgagee to lose his right to marshal. (The words or something close thereto are added out of an abundance of caution, based on an acceptance that nobody can foresee every possibility: I find it very hard to think of an arrangement short of a binding estoppel which would do).
+It would be wrong, both in principle and in practice, if it were otherwise.
+The right to marshal is based on a simple principle, and there is no reason to dilute it in the way contended for on behalf of Mrs Szepietowski.
+After all, the right to marshal is not based on the proposition that the first mortgagee is under an obligation to sell the other property first see para 34 above.
+Further, if Mrs Szepietowskis contention were accepted, one can readily imagine all sorts of arguments as to whether one property is more difficult to sell than another, and whether the extent or nature of the difficulty is such as qualifies for the purposes of the contention.
+Mr Tager QC suggested that if RBS had proceeded against Ashford House, the court would have stayed the proceedings on the basis that it should go against Claygate.
+I am by no means convinced that that is right.
+However, even if it was, I do not consider that would disqualify SOCA from seeking to marshal if it was otherwise able to do so.
+Conclusion
+In these circumstances, I would allow this appeal, and hold that SOCA does not have the right to marshal as it contends.
+I should add that, since preparing this judgment I have seen in draft the judgment of Lord Reed and the brief judgment of Lord Sumption, with both of which I agree.
+LORD SUMPTION
+I agree with the order proposed by Lord Neuberger for all the reasons that he gives.
+In particular I agree that subject to any contrary provision in the parties agreement, the charge must secure one or more underlying debts (or other personal liabilities) of the chargor to the chargee before the latter can require it to be marshalled with other securities given to other chargees.
+The reason is that a charge to secure a liability of the chargor to the chargee is a secondary benefit.
+It is available only for the purpose of enforcing the primary benefit, namely the underlying personal liability which the chargor owes him The right to marshall is an equity designed to ensure that the choices made by another chargee do not frustrate the enforcement of the underlying personal liability.
+If there is no underlying personal liability, then the sole effect of the transaction is to confer a contingent interest in the charged asset, not as the means to the recovery of any liability but as itself constituting the primary benefit.
+If the asset is subject to a prior charge in favour of someone else, the benefit thus conferred may not be worth very much.
+But that is the risk that the chargee necessarily accepts by taking no right of recourse against the chargor personally but only a potentially flawed interest in a specific asset.
+Once the chargee has enforced the charge against the asset in question, his claims against the chargor are exhausted.
+There is no possible equity that could entitle him to more.
+In this situation if the chargee can have the securities marshalled and proceed in addition against a different asset which was never charged to him, then the effect is to increase the chargors financial exposure.
+Since this would conflict with the whole basis on which equity developed the right to marshall, I cannot accept that it represents the law.
+I agree that the appeal should be allowed, for the reasons given by Lord
+LORD REED
+Neuberger and Lord Sumption.
+In view of the infrequency with which cases on this topic arise, and the application of the Proceeds of Crime Act 2002 throughout the United Kingdom, there may be some value in my adding some observations about the equivalent Scottish doctrine of catholic securities, described succinctly by Lord Adam in Nicols Trustees v Hill (1889) 16 R 416, 421: That doctrine is that when a prior creditor has one way of working out his preference which is less injurious to the postponed creditor than another, the prior creditor is bound either to adopt that course, or by assignation to put the postponed creditor into his right.
+The equitable basis of the doctrine, as Lord Adam described it, was explained by Lord President McNeill in Littlejohn v Black (1855) 18 D 207, 212: In the ordinary case of a catholic creditor ie, a creditor holding security over two subjects, which for the sake of simplicity I shall suppose to be heritable subjects and another creditor holding a postponed security over one of them, there can be no doubt that the catholic creditor is entitled to operate payment out of the two subjects as he best can for his own interest, but he is not entitled arbitrarily or nimiously to proceed in such a manner as to injure the secondary creditor without benefiting himself as, for instance, capriciously to take his payment entirely out of the subjects over which there is a second security, and thereby to exhaust that subject, to the detriment of the second creditor, leaving the other subject of his own security unaffected or unexhausted.
+The second creditor will be protected against a proceeding so contrary to equity, and the primary creditor will be compelled either to take his payment in the first instance out of that one of the subjects in which no other creditor holds a special interest, or to assign his right to the second creditor, from whom he has wrested the only subject of his security.
+Securities are neutral in their effect upon the debtor.
+Their effect is to strengthen the position of the secured creditor at the expense of unsecured creditors, since the holder of a security holds a right, accessory in nature, which he can exercise to secure the payment of the debt that is distinct from, and additional to, the right of action and execution which any creditor can exercise to enforce the performance of the debtors personal obligation.
+The doctrine of catholic securities can therefore operate to the prejudice of unsecured creditors, but it cannot affect the interests of the debtor.
+As the Lord President stated (ibid): The interest ie the legitimate interest of the primary creditor goes no farther than to get payment of his debt, and that is secured to him.
+The interest of the secondary creditor is to realize the value of his postponed security, and that is secured to him, in so far as is compatible with payment of the prior debt due to the primary creditor.
+The interest of the common debtor is truly nothing, or rather it is, or at least it ought to be, to allow both his creditors to receive full payment out of the subjects he had pledged to them.
+The ideas underlying the Scottish doctrine evidently have much in common with those underlying the English principle of marshalling, as explained in the authorities cited by Lord Neuberger.
+Lord President McNeills explanation that the Scottish doctrine protects the interests of the secondary creditor, but does not affect the interests of the debtor, appears to me to be equally true of the English principle, and to be particularly relevant to the present case.
+As Lord Neuberger has explained, the debt which was owed to SOCA and secured by the 2009 Charge was contingent upon a number of eventualities, one of which was whether any amount (and if so, how much) was left over after prior claims had been met out of the net proceeds of sale of Claygate: something which depended upon RBSs decision as to the order in which it should realise its securities.
+It follows that the short answer to SOCAs claim that it should be entitled to the benefit of RBSs security over Ashford House in order to secure the payment of the balance of the debt owed to it is that there is no such balance: it received, out of the sale proceeds of Claygate, all that it was entitled to receive.
+SOCAs argument to the contrary assumes, contrary to clause 7.2 of the 2009 Charge, that there was a debt owed to SOCA which was ascertainable independently of RBSs election.
+Another way of putting the point is to say that there is no scope for marshalling of securities, as SOCA is no longer a creditor of Mrs Szepietowski, and there is therefore no longer any personal liability which is secured by the 2009 Charge.
+It is because of the debts being contingent upon (amongst other things) RBSs decision as to the order in which to realise its securities that SOCAs argument is inconsistent with the principle that marshalling is neutral in its effect upon the debtor.
+If SOCA were entitled to treat the balance of the Secured Amount (as it was somewhat confusingly described in the 2009 Charge) as being secured over Ashford House, the effect would be to increase the amount which Mrs Szepietowski had to pay: in the light of clause 7.2, it cannot be argued that, absent marshalling, SOCA would be a creditor for the balance of the Secured Amount.
+That in itself demonstrates that SOCAs claim is not a proper application of the principle of marshalling.
+LORD CARNWATH
+I agree that the appeal should be allowed, but on narrower grounds than those favoured by Lord Neuberger.
+In my view the solution is to be found, not in the general law of marshalling, but in the interpretation of a particular contract against its unusual statutory and factual background.
+On that aspect, I agree with the conclusion and much of the reasoning of Lord Neuberger under the heading The terms of the Settlement Deed and the 2009 Charge (paras 60 71), but with a rather different emphasis.
+The starting point to my mind is the statutory jurisdiction under which SOCA was operating, and under which the compromise was agreed.
+SOCAs jurisdiction under this part of the 2002 Act is asset based, rather than financial.
+Its task is to identify and claim recoverable property, that is property acquired through unlawful conduct as provided for in the Act.
+The essential purpose of the settlement deed was to resolve a dispute between SOCA and the appellant as to the properties to be treated as falling within that category.
+It was consistent with that scheme that the appellant did not undertake a personal obligation to pay any sum of money as such, beyond the value of her interest in the properties specified.
+SOCA started with a potential claim to 20 items of recoverable property (listed in annexe A) but they agreed to accept the 13 transfer properties listed in annex B in full and final settlement of their claims in relation to all the properties in annexe A (cl 2.1), they being expected at the time to realise some 5.4m.
+Her home, Ashford House, was specifically excluded.
+As I understand the arrangement, the two additional properties in annexe C (Claygate) were needed solely to deal with the complication of the RBS charge over two of the transfer properties (Thames Street and Church Street).
+If RBS had agreed to the transfer of their charge to Claygate (under cl 4.5(i)), there would have been no such complication, the additional properties could have dropped out of the picture (cl 4.4), and no question of marshalling could have arisen.
+As it was, the trustees rights to Thames Street and Church Street were, on their sale, converted into another property right, a charge over Claygate for the amount (1.24m) of their sale proceeds as paid to RBS (cl 4.5(ii), 2009 charge cl 1).
+Consistently with the scheme of the settlement, clause 2 of the charge defined the appellants obligation on sale of that property as being to apply the proceeds of sale. , in settlement of the secured amount.
+In this statutory context, and taken with clause 7.2, I read this wording as not only excluding any personal liability on the part of the appellant, but as also impliedly excluding recourse to any source for payment other than those identified.
+If SOCA had wished to include Ashford House as potentially recoverable property, they should have done so specifically, rather than hope to bring it in later by an equitable backdoor.
+In the result, I agree with Lord Neubergers conclusion at paragraph 72, not so much on the basis that it would be inequitable to allow marshalling against Ashford House, but that on the proper interpretation of the agreement in its statutory context that possibility is excluded.
+This conclusion accords with that provisionally reached by Henderson J in his first judgment ([2009] EWHC 655 (Ch) para 31).
+In his later judgment on the present issues ([[2010] EWHC 2570 (Ch) paras 35 36) he changed his mind.
+He thought that clause 2.1 could not be read as extending to future claims against or relating to the released properties.
+He took account of some words of Lord Bingham of Cornhill in Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251, para 19 (the BCCI case), when holding that the general release arrived at in a settlement agreement in that case did not extend to future claims for stigma damages by BCCI employees who had been made redundant in 1990.
+In the Court of Appeal, Patten LJ agreed.
+He said: The claim to be subrogated to the RBS charge against Ashford House is not a claim against Mrs Szepietowski in the proceedings or even a claim against her at all.
+It is a claim to enforce the subsisting clause 4.5 charge by invoking the courts equitable jurisdiction to marshal the available security between existing creditors.
+Clause 2.1 is not directed to that issue which arises as a result of rights granted to SOCA under the deed. (para 47)
+With respect to both courts, I think that Henderson Js first thoughts were correct.
+The marshalling claim is sufficiently linked to the subject matter of the agreement to fall within the words of clause 2.1, in the context of an agreement which, as I have said, was intended to define the limits of SOCAs property claims arising out of these particular allegations of unlawful conduct, and in relation to these properties.
+This is a very long way from the facts of the BCCI case.
+As the judge acknowledged, and as is apparent from Lord Binghams words quoted by him, that was a case in which the parties, at the time of the release, could never have had in contemplation at all the type of claims subsequently advanced.
+Furthermore, with respect to Patten LJ, to focus on whether the marshalling claim is one against Mrs Szepietowski herself is to disregard the whole purpose of the agreement, which as I have said was not to define personal claims, but to fix the limits of SOCAs property claims under the Act.
+The addition in clause 2.1 of the words (claims) in relation to the properties listed seems to me quite sufficient, if necessary, to make that clear.
+I would have been content to stop at that point.
+But in view of the attention given to the issue of marshalling in the courts below, and since I have reservations about Lord Neubergers reasoning on this topic, I think it right to add my own comments.
+The courts below struggled with the concept of a charge without an underlying debt, which the judge described as a contradiction in terms (para 45).
+He referred to Lord Hoffmanns statement that an interest provided by way of security entitles the holder to resort to the property only for the purpose of satisfying some liability due to him (whether from the person providing the security or a third party) (In re Bank of Credit and Commerce International SA (No 8) [1998] AC 214, 226 (the BCCI (No 8) Case)).
+This discussion arose in the context of what he called the two debts condition (para 47).
+This, as I understand it, he took from the statement of Rose LJ in the Court of Appeal decision in the BCCI (No 8) Case [1996] Ch 245, 271 (in the passage already quoted by Neuberger LJ para 2) that for the [marshalling] doctrine to apply there must be two debts owed by the same debtor to two different creditors.
+It was argued that since there was no debt due to SOCA, marshalling could not be invoked.
+The judge concluded that this condition was satisfied, even if the appellant could not be sued personally: That there was a debt owed by her to SOCA is in my judgment undeniable, even if it was a debt that could be enforced only by sale of the Claygate Properties (para 46).
+In the Court of Appeal, Patten LJ (paras 53 54) recorded that there had been no challenge to the judges finding that a debt was created by the charge.
+Nor was this issue as such reopened by the appellants printed case in this court (see para 154).
+Notwithstanding that formal position, the majority of this court have as I understand it thought it appropriate to re examine the no debt issue, in order to avoid the law being developed on a false basis.
+I do not dissent from that approach, although I am not convinced that the issue is one of any general importance.
+On any view, the concept of a charge without an underlying personal debt seems sufficiently unusual for it to be difficult to consider outside the particular factual context in which it may arise.
+As to the principle, I agree with Lord Neuberger (para 48) that Rose LJs words were not directed to the issue which arises in this case.
+They cannot in my view be read as sufficient in themselves to establish a general two debts rule.
+I do not find it so easy, however, to discount the words used in the 18th and 19th century authorities, since it is they which explain the basis on which the principle was developed.
+Those cases make clear to my mind, as Miss Harman submits, that it is a remedy which operates primarily between security holders, not between them and the common debtor or chargor.
+In the words of Lord Eldon LC in Aldrich v Cooper 8 Ves Jun 382, 395 (quoted by Lord Neuberger at para 30) a person having [access to] two funds shall not by his election disappoint the party having only one fund; or as Professor Story put it (quoted at para 35) it is a matter of natural justice between the two creditors.
+To achieve this, the second charge holder has an equity to require that the first creditor satisfy himself (or be treated as having satisfied himself) so far as possible out of the security or fund to which the latter has no claim (per Lord Hoffmann in the BCCI (No 8) Case [1998] AC 214, 231, quoted at para 1).
+The Scottish cases, to which Lord Reed refers, are to the same effect.
+With regard to the interests of the common debtor or chargor, the only qualification to be found in those judgments is in Lord Eldon LCs observation in Ex P Kendall 17 Ves 514, 527 that the principle has never been pressed to the effect of injustice to the common debtor (quoted by Lord Neuberger at para 37).
+However, it is not clear what form of injustice he had in mind.
+In the normal case, the common debtor will have accepted the risk of enforcement of the two charged sums in full against both securities.
+There is no injustice to him if that risk becomes fact.
+That position, as it seems to me, is unaffected by whether or not the charger is also subject to a personal liability.
+In either case, he has accepted the risk of enforcement against both properties, contingent only on the choice of the first chargee.
+Lord Neubergers view to the contrary depends as I understand it on looking at the position after the common property has been sold by the first chargee (paras 46 47).
+However, that seems to me with respect to look at the position from the wrong end.
+What matters is not how things turn out, but whether that result is within the scope of the risk which the chargor has undertaken at the time the charges were granted.
+Clearly, once the common property is sold, assuming the chargor is solvent and there is no personal liability, he will be worse off if marshalling is allowed than if it is not.
+Instead of enforcement being limited to what can be extracted from the second property, it will extend to the remaining value of both properties.
+However, there is no injustice in that result if it is within the scope of the risk which he has voluntarily accepted.
+On the wider issue, therefore, I agree with Miss Harmans submissions.
+Assuming that, at least in theory, there might be other circumstances (outside the present statutory context) in which a charge would be granted without an underlying personal liability, I see no reason in principle why the remedy of marshalling should be excluded.
+However, for the reasons already given, I would uphold the appeal on the issue of construction.
+LORD HUGHES
+I entirely agree that this appeal should be allowed and that on the facts of this transaction SOCA does not have the right to marshal against Ashford House.
+With a single exception, I do so for all the reasons given by Lord Neuberger.
+The single exception concerns the general proposition that before marshalling can be claimed the security held by the second chargee must secure an underlying personal debt of his to the chargor.
+It seems to me, as it does to Lord Carnwath, that the essence of marshalling lies in the existence of concurrent securities, rather than in the nature of the liability which they secure.
+Clearly there will always be some liability by the chargee to the chargor.
+It will normally, no doubt, be a personal debt from the chargee to the chargor.
+But it may occasionally be something different, as for example if the chargor is prepared to underwrite the debt of another to the extent of putting up security but is not prepared to enter into an unlimited personal guarantee.
+If, in such a situation, the security offered is a second charge on some asset (Blackacre) already charged to a prior chargee and if that prior chargee also has additional security (Whiteacre) for whatever liability the chargor has to him, the occasion for the second chargee to seek to marshal may arise if the prior chargee opts to enforce the common security (Blackacre) rather than his additional security (Whiteacre).
+There may be something in the particular transaction, as there is here, which demonstrates that marshalling would be inconsistent with its nature.
+But as a general proposition it seems to me that there is no obstacle in the situation described to the second chargee marshalling against Whiteacre up to the amount which would have been available to him in Blackacre if the prior chargee had opted to enforce first against Whiteacre.
+True it is that the second chargee has always known that he ranks second to the prior chargee and that accordingly he has always faced the risk that Blackacre may be used up by the prior chargee.
+But that is true equally where there is also a personal liability.
+The function of marshalling is to avoid his losing his security simply because the prior chargee opts to enforce against Blackacre rather than against his additional security, Whiteacre.
+The existence or non existence of a personal liability in the chargor makes no difference.
+Next, it is certainly true that it is of the essence of marshalling that it is neutral so far as the chargor/debtor is concerned, in the sense that he ends up paying in total out of the two securities no more than he was always liable to pay.
+However, it does not seem to me that the chargors total exposure is impermissibly beyond what it was always likely to be by marshalling in the situation described.
+It will still be the same as it would have been if either (a) the prior chargee had enforced first against Whiteacre or (b) the liability to the prior chargee had otherwise been discharged, both of which events were always on the cards.
+For these reasons, although the occasion for the distinction to bite will no doubt be rare, I prefer Lord Carnwaths conclusion on this narrow point.
diff --git a/UK-Abs/test-data/judgement/uksc-2011-0233.txt b/UK-Abs/test-data/judgement/uksc-2011-0233.txt
new file mode 100644
index 0000000000000000000000000000000000000000..d62163eebc8b03ed50e9432388146b8d33fdae35
--- /dev/null
+++ b/UK-Abs/test-data/judgement/uksc-2011-0233.txt
@@ -0,0 +1,151 @@
+On 6 August 2003 a young man of 17 and a young girl of 13 had sexual intercourse.
+Afterwards the young girl told her mother that this had occurred but she suggested that she had not been a willing participant.
+Understandably, her mother went to the police and the young man was arrested.
+Later her daughter retracted her account of not having consented to sexual relations.
+The young man was therefore charged with a less serious offence than that which he might have faced.
+It was, nonetheless, a serious charge.
+He was charged with having had unlawful carnal knowledge of a girl under the age of 14 years contrary to section 4 of the Criminal Law Amendment Acts (Northern Ireland) 1885 1923.
+The young man pleaded guilty to that charge at Belfast Crown Court on 22 June 2004.
+That plea had been entered on the basis that the offence created by section 4 was one in which reasonable belief that the girl was over the age of 14 was not available to him as a defence.
+The defendant was sentenced to three years detention in a Young Offenders Centre.
+The sentence was suspended for two years.
+Later, having received different legal advice from that which had prompted his plea of guilty, the young man applied to the Court of Appeal in Northern Ireland for leave to appeal against his conviction.
+The issue before the Court of Appeal was whether section 4 of the 1885 Act created an offence in which proof that the defendant did not honestly believe that the girl was over the age of 14 was not required.
+That is also the issue with which this court has had to deal.
+The legislative provisions
+Traditionally, sexual offences (other than forced intercourse) against girls and young women have been dealt with in legislation according to age bands, with, in general, more grave offences reserved for and heavier penalties imposed for crimes involving younger females.
+A clearly discernible historical trend of increasing the age of the victim at which liability for more serious offences is incurred, while reducing the sentence to be imposed, can be detected.
+Thus, section 20 of the Offences against the Person (Ireland) Act 1829 provided that any person who had unlawful carnal knowledge of a girl under the age of ten years was guilty of a felony, punishable by death.
+By contrast, the same section provided that unlawful carnal knowledge of a girl between ten and 12 years was a misdemeanour punishable by a term of imprisonment at the discretion of the court.
+Section 50 of the Offences against the Person Act 1861 reduced the sentence to be imposed for the felony of unlawful carnal knowledge of a girl under the age of ten to, at the discretion of the court, penal servitude for life or for a term of not less than three years or imprisonment for a term not exceeding two years with or without hard labour.
+For unlawful carnal knowledge of a girl between the ages of ten and 12, a defendant was guilty of a misdemeanour under section 51 of the same Act and liable to be sentenced to penal servitude for three years or to be imprisoned for up to two years with or without hard labour.
+Section 3 of the Offences against the Person Act 1875 made it a felony to unlawfully and carnally know and abuse any girl under the age of 12 years.
+Section 4(3) of the Criminal Law Amendment Act (Northern Ireland) 1923 provided that the Criminal Law Amendment Acts (Northern Ireland) 1885 1912 and the Criminal Law Amendment Act (Northern Ireland) 1923 should, to the extent to which they applied to Northern Ireland, be cited together as the Criminal Law Amendment Acts (Northern Ireland) 1885 1923.
+Section 2 of the 1885 1923 Acts provided for a procuration offence: Any person who . procures or attempts to procure any girl or woman under 21 years of age to have unlawful carnal connexion, either within or without the Queen's dominions, with any other
+person or persons . shall be guilty of a misdemeanour
+Section 4, as amended, and in so far as is relevant to the present appeal, provided that Any person who unlawfully and carnally knows any girl under the age of 14 years shall be guilty of felony, and being convicted thereof shall be liable to be imprisoned for life or to be fined or both. (As originally enacted, section 4 had stipulated an age of 13 years.
+This was increased to 14 by the Children and Young Persons Act (Northern Ireland) 1950).
+As also originally enacted, section 5 of the 1885 Act provided for an offence of unlawful carnal knowledge of a girl between 13 and 15.
+The age limit was increased by section 13 of the 1950 Act so that in its amended form it provided as follows: Any person who . unlawfully and carnally knows or attempts to have unlawful carnal knowledge of any girl under the age of 17
+years; shall be guilty of a misdemeanor
+offence of permitting defilement on premises: Section 6, as amended by section 13 of the 1950 Act, provided for an Any person who, being the owner or occupier of any premises, or having, or acting or assisting in, the management or control thereof induces or knowingly suffers any girl to resort to or be in or upon such premises for the purpose of being unlawfully and carnally known by any man, whether such carnal knowledge is intended to be with any particular man or generally, shall . if such girl is under the
+age of 17 years be guilty of a misdemeanour
+Section 7 provided for an offence of abduction: Any person who with intent that any unmarried girl under the age of 18 years should be unlawfully and carnally known by any man, whether such carnal knowledge is intended to be with any particular man, or generally takes or causes to be taken such girl out of the possession and against the will of her father or mother, or any other person having the lawful care or charge of her, shall be guilty of a misdemeanour, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years or to be fined or both.
+Provided that it shall be a sufficient defence to any charge under this section if it shall be made to appear to the court or jury that the person so charged had reasonable cause to believe that the girl was of or above the age of 18 years.
+Provisos of a similar nature to that contained in the latter part of section 7 were included in sections 5 and 6 of the 1885 Act as originally enacted.
+These were removed by section 2 of the 1923 Act, as amended by section 13 of the 1950 Act: Reasonable cause to believe that a girl was of or above the age of 17 years shall not be a defence to a charge under sub section (1) of section five or under section six of the Criminal Law Amendment
+Act 1885
+In August 2003, therefore, the Criminal Law Amendment Acts (Northern Ireland) 1885 1923 included five offences in which age was an essential component of the actus reus, of which two (sections 2 and 4) were silent as to the effect, if any, of reasonable belief as to the age of the girl; two (sections 5 and 6) were subject to an express exclusion of a defence of reasonable belief as to age; and one (section 7) was subject to a defence of reasonable belief as to age.
+Thus, from 1885 until 1923, unlawful carnal knowledge of a girl of 13 years or more was not an offence under section 4.
+During the same period such an offence was committed under section 5 of the 1885 Act if the girl was between the ages of 13 and 15 but a defence of reasonable belief that the girl was 16 years or more was available.
+From 1923 until 1950 unlawful carnal knowledge of a girl of 13 or more continued not to be an offence under section 4.
+During that time, however, unlawful carnal knowledge of a girl between 13 and 15 years did not require proof under section 5 that the defendant did not believe that the girl was over the age of 16.
+From 1950 onwards sexual intercourse with a girl under the age of 14 became an offence under section 4.
+The appellants arguments
+The appellant argued that the approach to the interpretation of section 4 of the 1885 1923 Acts must be informed by a fundamental common law principle.
+This was that there should be a mental element, commonly referred to as mens rea, for criminal liability unless a clear intention was evinced by the words of a statute that a particular criminal offence should be one of strict liability.
+The presumption that mens rea was required could only be displaced, it was suggested, where it could be shown that this was the unmistakable intention of Parliament.
+Such an intention was less readily found to exist where the offence was a serious one.
+In this regard, reliance was placed on the judgment in R v Muhamad [2003] QB 1031 where, at para 19, Dyson LJ said: The offences where no mental element is specified, for the most part, attract considerably lower maximum sentences than those where a mental element is specified.
+Since section 4 was silent on the question of whether proof of mens rea was required, the appellant submitted that the offence specified in the provision could only be regarded as not requiring such proof if that had to be unavoidably and necessarily implied.
+The suggestion that a particular provision imposed strict liability had to be considered, the appellant argued, in its statutory and social contexts.
+The Criminal Law Amendment Acts (Northern Ireland) 1885 1923 fell to be interpreted as they stood at the time of the appellant's offence: that is, with an express provision making clear that no defence of reasonable belief applied to sections 5 and 6, but remaining silent as to the mens rea of an offence contrary to section 4.
+The legislative history of the relevant provisions, although not irrelevant, was, the appellant argued, merely one factor to be taken into account.
+In this regard, reference was made to the speech of Lord Steyn in R v K [2002] 1 AC 462, para 30 where he said that it was unhelpful to inquire into the history of subjective views held by individual legislators and that the always speaking nature of a statute dealing with sexual offences meant that a particular provision had to be interpreted in the world as it exists today, and in the light of the legal system as it exists today.
+The statutory context of section 4 therefore suggested that the presumption that mens rea was required had not been displaced.
+The appellant argued further that, if an implication of strict liability was to be considered as compellingly clear, it must arise from a coherent and consistent legislative scheme.
+The Acts of 1885 1923 did not fit that description.
+The express provision of a defence of reasonable belief to an offence under section 7, when considered alongside the explicit exclusion of such a defence to offences under sections 5 and 6, and silence on the issue under section 4, meant that the legislation contained signposts which pointed in various directions.
+It was impossible to detect a convincingly obvious implication.
+As to the social context of the offence under section 4, the appellant again referred to the particular strength of the presumption where the offence was serious or, as described by Lord Scarman in Gammon (Hong Kong) v Attorney General of Hong Kong [1985] AC 1, 14, truly criminal.
+The offence under section 4 was unquestionably serious and carried a maximum penalty of life imprisonment.
+As Lord Bingham said in Sheldrake v Director of Public Prosecutions [2005] 1 AC 264, para 6, The more serious the crime, and the more severe the potential consequences of conviction, the less readily will it be displaced.
+The appellant accepted that section 4 dealt with an issue of social concern but pointed out that Lord Scarman in Gammon (Hong Kong) v Attorney General of Hong Kong had observed that the presumption of mens rea should stand unless it could be shown that the creation of strict liability would be effective to promote the objects of the statute.
+The objects of the statute in this context were considered to be the encouraging of greater vigilance to prevent the commission of the prohibited act.
+To the extent that strict liability might be said to promote the objects of the statute by encouraging greater vigilance against sexual intercourse with girls under the age of 17, it was submitted that this was sufficiently achieved in Northern Ireland by the strict liability imposed under section 5.
+Finally, in a written submission provided on his behalf after the hearing of the appeal before this court, it was pointed out that the appellant could not have been convicted of the section 4 offence in 1885 (the time of the original enactment) since the offence at that time related to girls under the age of 13.
+Nor could he have been convicted of such an offence until 1950.
+An analysis of whether the common law presumption was displaced had to be conducted against the background that no consistent policy approach had been adopted to the question of whether unlawful carnal knowledge of a girl under 14 years should be a strict liability offence.
+The case for the respondent
+The proviso introduced by sections 5 and 6 of the 1885 Act introduced for the first time, the respondent explained, a defence of reasonable belief as to the age of the person against whom an offence under these sections was charged.
+The background against which the defence had been made available was that R v Prince (1875) LR 2 CCR 154 had held that reasonable grounds for believing that the girl involved was over the age of consent did not constitute a defence under section 51 of the Offences against the Person Act 1861.
+But when Parliament came to abrogate that rule in 1885, it did so (by virtue of section 5 of the 1885 Act) only in relation to girls between the ages of 13 and 16.
+It did not do so in relation to girls under the age of 13.
+The decision not to provide for a similar defence under section 4 of the 1885 Act could not have been other than deliberate, it was argued.
+This was not the only distinction between sections 4 and 5, however.
+A limitation period of three months on the prosecution of offences under section 5 was also provided for but there was no corresponding provision in section 4. (This limitation period was subsequently increased to 12 months but it was expressly recommended that no such limitation should be introduced for an offence of unlawful sexual intercourse with a girl under the age of 13 because of the gravity of that particular offence in this regard, see R v J [2005] 1 AC 562, para 10).
+Section 4 of the 1885 Act also made specific provision for a lesser sentence in respect of an attempt.
+And, as originally enacted, it also provided for a less severe sentence with respect to young offenders under 16.
+Neither of these different sentencing options was provided for by section 5(1), however.
+In England and Wales maintenance of the distinction between, on the one hand section 4 and, on the other, sections 5 and 6 of the 1885 Act, could be seen, the respondent argued, in the amendments introduced by section 2 of the Criminal Law Amendment Act 1922.
+It appears that the government had intended to remove altogether the defence of reasonable cause to believe that the girl was over the age of 16 years but, by way of compromise, introduced what has become known as the young mans defence.
+By virtue of section 2 of the 1922 Act a man of 23 years or less could avail of the defence (on the first occasion that he was charged with an offence under sections 5 or 6 of the 1885 Act) that he had reasonable cause to believe that the girl was over the age of 16 years.
+No such defence was provided for in relation to offences under section 4.
+In 1923 the Northern Ireland Parliament, in one of its first items of legislation, achieved, according to the respondent, what Parliament in Westminster had failed to bring about in 1922, namely, the complete abolition of the defence of reasonable belief on the part of the defendant that the girl was above the age of consent.
+To have abolished that defence in relation to sections 5 and 6 while leaving open the question whether such a defence might be available in respect of the more serious offence under section 4 was inconceivable, the respondent claimed.
+It was therefore argued that it has always been undeniably clear that an offence under section 4 should be one in which proof of mens rea as to the age of the victim was not required.
+Discussion
+The constitutional principle that mens rea is presumed to be required in order to establish criminal liability is a strong one.
+It is not to be displaced in the absence of clear statutory language or unmistakably necessary implication.
+And true it is, as the appellant has argued, that the legislative history of an enactment may not always provide the framework for deciding whether the clearly identifiable conditions in which an implication must be made are present.
+It is also undeniable that where the statutory offence is grave or truly criminal and carries a heavy penalty or a substantial social stigma, the case is enhanced against implying that mens rea of any ingredient of the offence is not needed.
+The strength of the constitutional principle in favour of a presumption that criminal liability requires proof of mens rea finds eloquent expression in what Lord Nicholls, in B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428, 460, referred to as the magisterial statement of Lord Reid in Sweet v Parsley [1970] AC 132, 148 149: there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did.
+That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea . it is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some
+reason can be found for holding that that is not necessary
+where he said: In B (A Minor) Lord Nicholls reinforced that essential message at p 460G the starting point for a court is the established common law presumption that a mental element, traditionally labelled mens rea, is an essential ingredient unless Parliament has indicated a contrary intention either expressly or by necessary implication.
+The common law presumes that, unless Parliament has indicated otherwise, the appropriate mental element is an unexpressed ingredient of every statutory offence.
+One must begin, therefore, with this strong presumption firmly at centre stage.
+And its ready displacement should not be countenanced, as has, perhaps, happened in the past.
+In Smith and Hogans Criminal Law, 13th ed (2011), para 7.2 the authors deprecated the tendency of some judges to declaim that the presumption was well embedded only to willingly find that it was easily rebutted.
+Lord Bingham made clear in R v K [2002] 1 AC 462, para 18 that description of an offence such as that prescribed by section 4 as an absolute offence or an offence of strict liability is a misnomer.
+There must always be deliberation on the part of the defendant in committing the acts which constitute the factual underpinning of the offence.
+The real and proper question is whether it must be proved that there was a lack of reasonable belief, on the part of the perpetrator of the acts, that the girl was above the prescribed age.
+In R v K at para 17 Lord Bingham referred with approval to Lord Steyns quotation in B (A Minor) at p 470F of Professor Sir Rupert Crosss statement that the presumption that mens rea was required in the case of all statutory crimes was a constitutional principle not easily displaced by a statutory text.
+These sturdy assertions provide the setting for the inquiry whether mens rea in relation to the girls age had to be proved in order to found liability under section 4.
+That inquiry must start, I believe, with a clear understanding of what the legal position was at the time that the relevant provisions were enacted.
+It is true that the subjective intention of individual legislators will not always provide an incontrovertible guide to the meaning of the legislation, as Lord Steyn said in R v K.
+But one must at least begin with an examination of what the legislative intention was before considering whether modification of that intention is justified by later amendments or contemporary social contexts.
+In my view, there can really be no doubt that section 4 in its original form was intended to impose criminal liability for carnal knowledge of a female under the age of 13 without proof that the perpetrator knew or had reason to believe that she was below that age.
+Two considerations make that conclusion inevitable.
+Firstly, the decision in R v Prince had confirmed that proof of knowledge or lack of reasonable belief in the age of the victim was not required.
+Coming as it did merely ten years before the 1885 Act, that decision formed the crucial backdrop to the enactment of section 4.
+It is inconceivable that, had it been intended that such proof was required, section 4 would have remained silent on the issue.
+Secondly and relatedly, the juxtaposition of sections 5 and 6 (in which a dispensing proviso was contained) with section 4 makes it impossible to conclude that the absence of such a proviso in section 4 signified anything other than a clear intention that a defence of reasonable belief in the girls age was not to be available.
+This is particularly so because the 1885 Act introduced for the first time such a defence in relation to offences of the type provided for in sections 5 and 6.
+It seems to me unquestionable that the decision not to extend the defence to offences under section 4 was deliberate and that it clearly signified that the legislature intended that no such defence would be available in relation to offences under that section.
+That being so, the next question is whether the amendment in the 1923 Act made any difference to the availability of the defence under section 4.
+The appellant contended that the textual amendment of the 1885 Act prompted consideration within a new context of the question whether the presumption that mens rea is required had been displaced.
+A change to the statutory framework, the appellant argued, required examination of that question from an entirely new perspective one in which, in contrast to that which had hitherto obtained, the defence of reasonable belief no longer applied to sections 5 and 6 (as a consequence of explicit provision to that effect) but the question of whether it applied to offences under section 4 was open because of the absence of any reference to it in that section.
+It would be a curious, indeed anomalous, outcome of the removal of the defence from sections 5 and 6 that it should be implied into section 4 to which it had not previously applied.
+At a technical or theoretical level, it can be argued that such a result is feasible because, as the appellant has submitted, the 1885 1923 Acts are to be construed as a whole in their amended form.
+Bennion on Statutory Interpretation, 5th ed (2008) describes the effect of textual amendment of a statute at p 290 as follows: . under modern practice the intention of Parliament when effecting textual amendment of an Act is usually to produce a revised text of the Act which is thereafter to be construed as a whole.
+Any repealed provisions are to be treated as never having been there, so far as concerns the application of the amended Act for the future. (original emphasis)
+The appellant has pointed out that in B (A Minor), in deciding whether the presumption was rebutted, both Lord Nicholls and Lord Steyn had taken account of the amendment of the applicable maximum penalty from two to ten years imprisonment.
+And in R v Kumar [2005] 1 WLR 1352, paras 11 13, 28, the Court of Appeal construed section 12 of the Sexual Offences Act 1956 in its present form within an amended statutory framework that included the Sexual Offences Act 1967 and amendments to section 12 in 1994 and 2000, by virtue of which homosexual acts between consenting males of a prescribed age were decriminalised.
+It was suggested therefore that a new approach to the interpretation of section 4 is now warranted.
+I cannot accept that argument.
+In the first place, while the amended legislation is to be construed as a whole in its revised form, it does not follow that its antecedent history be left entirely out of account.
+More pertinently, the relevant amendment of the 1885 Act removed a defence which had previously been available for offences under sections 5 and 6 when none had existed for offences under section 4.
+To suggest that the removal of the defence under sections 5 and 6 would have the effect of introducing it under section 4 by implication takes contrivance too far.
+I am satisfied that in its statutory context section 4 must be interpreted as not requiring proof that the defendant did not know or reasonably believe that the girl was aged 14 or over.
+The appellants argument that the Acts of 1885 1923 did not form a coherent and consistent legislative scheme must likewise be rejected.
+The fact that the legislation contained signposts which pointed in various directions does not render it incoherent.
+It is entirely logical (and in keeping with the historical trend described earlier) that a defence of reasonable belief should be available for the less serious offences prescribed by sections 5 and 6, but that it should not exist for the more grave offence under section 4.
+For essentially the same reasons, I would reject the appellants argument that there was no consistent policy approach to the question of whether unlawful carnal knowledge of a girl under 14 years should be a strict liability offence.
+On the contrary, the policy approach of protecting younger females by ensuring that a defence of reasonable belief should not be available has been unswerving.
+The fact that the age was increased from 13 to 14 does not make the policy inconsistent.
+It merely represents the evolution of changing views as to when the policy should take effect.
+Finally, there is nothing in the contemporary social context which militates against the denial of the defence of reasonable belief as to age for section 4 offences.
+This issue was dealt with authoritatively in R v G (Secretary of State for the Home Department intervening) [2009] AC 92.
+In that case the appellant had pleaded guilty to an offence of rape of a child under the age of 13, contrary to section 5 of the Sexual Offences Act 2003.
+The prosecution had accepted the appellants claim that the girl had consented to sexual intercourse and had told him that she was 15 years old.
+The appellant himself was 15 at the time of the offence and the girl was aged 12.
+At para 3 Lord Hoffmann said: The mental element of the offence under section 5, as the language and structure of the section makes clear, is that penetration must be intentional but there is no requirement that the accused must have known that the other person was under 13.
+The policy of the legislation is to protect children.
+If you have sex with someone who is on any view a child or young person, you take your chance on exactly how old they are.
+To that extent the offence is one of strict liability and it is no defence that the accused believed the other person to be 13 or over.
+Precisely the same policy considerations underpin section 4 of the 1885 1923 Acts.
+Young girls must be protected and, as part of that protection, it should not be a defence that the person accused believed the girl to be above the prescribed age.
+As Lady Hale said in para 46 of G, When the child is under 13 [the accused] takes the risk that she may be younger than he thinks she is.
+The object is to make him take responsibility for what he chooses to do If you have sexual intercourse with someone who is clearly a child or young person, you do so at your peril.
+I would dismiss the appeal.
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+The issue on this appeal is whether and if so in what circumstances the Financial Services Authority (FSA) should, as a condition of obtaining a freezing injunction under section 380(3) of the Financial Services and Markets Act 2000 (FSMA) and/or section 37(1) of the Senior Courts Act 1981 (SCA), be required to give to the court a cross undertaking in damages in favour of third parties affected by the injunction.
+The answer I would give is that there is no general rule that an authority like the FSA acting pursuant to a public duty should be required to give such an undertaking, and that there are no particular circumstances why it should be required to do so in the present case.
+The issue has been argued as a matter of principle between the FSA and Barclays Bank plc (Barclays), a potentially affected third party.
+However, a brief statement of the background is appropriate.
+On 20th December 2010 proceedings were commenced by the FSA against three defendants (Sinaloa Gold plc, a person or persons trading as PH Capital Invest and a Mr Glen Lawrence Hoover) on the basis that (a) Sinaloa was promoting the sales of shares without being authorised to do so and without an approved prospectus, contrary to FSMA sections 21 and 85, (b) PH Capital Invest and Mr Hoover were knowingly engaged in this activity, and (c) PH Capital Invest was as an unauthorised person carrying on regulated activities in breach of FSMA section 19 in various other respects.
+which Mr Hoover was the sole authorised signatory.
+Before issuing these proceedings, the FSA had on 17th December 2010 obtained without notice an injunction freezing the defendants assets under sections 380(3) FSMA and/or 37(1) SCA.
+Barclays were notified of the order on 20th December 2010, and the injunction was continued by David Richards J at a hearing on notice on 31st December 2010.
+Sinaloa Gold plc had six bank accounts at Barclays, in respect of all of
+As originally issued, Schedule B to the injunction, headed Undertakings given to the Court by the Applicant, read: (1) The Applicant does not offer a cross undertaking in damages. (4) The Applicant will pay the reasonable costs of anyone other than the Respondents which have been incurred as a result of this order including the costs of finding out whether that person holds any of the Respondent's assets and if the court later finds that this order has caused such person loss, and decides that such person should be compensated for that loss, the Applicant will comply with any order the court may make. (italics added) By the time the injunction was continued, the possible inconsistency between paragraphs (1) and (4) was observed, and the FSA was required to agree to add at the end of paragraph (1) the phrase save to the extent provided in paragraph (4) below, without prejudice to its right to apply to vary paragraph (4).
+On 12th January 2011 the FSA applied to have the words which I have italicised in paragraph (4) removed.
+Barclays intervened to oppose the application, which was refused by HHJ David Hodge QC on 25th January 2011 [2011] EWHC 144(Ch).
+On 18th October 2011 the Court of Appeal reversed his decision and ordered a cross undertaking in the terms of paragraph (4) without the italicised words [2012] Bus LR 753.
+The effect was to preserve the undertaking in respect of costs incurred by third parties (which the FSA did not dispute), but to eliminate any requirement that the FSA give an undertaking in respect of losses incurred by third parties.
+Barclays now appeals by permission of this Court.
+The FSA and FSMA
+The FSA is governed by FSMA.
+Schedule 1 to FSMA makes provision about its status, including an exemption from liability in damages (paragraph 12 below).
+The FSA was given general functions which in discharging it must, so far as is reasonably possible, act in a way which is compatible with defined regulatory objectives and which it considers most appropriate for the purpose of meeting those objectives: FSMA, section 2(1) and (4).
+Its general functions include making rules, preparing and issuing codes, giving general guidance and determining general policy and principles by reference to which to perform particular functions.
+The regulatory objectives include maintaining market confidence in the UK financial system (section 3), protecting and enhancing the stability of the UK financial system (section 3A, as inserted by section 1(3) of the Financial Services Act 2010), securing the appropriate degree of protection for consumers (section 5) and reducing the extent to which it is possible for a business carried on by a regulated person or in contravention of the general prohibition to be used for a purpose connected with financial crime (section 6).
+Section 19 in Part II of FSMA prohibits any person from carrying on, or
+purporting to carry on, a regulated activity in the UK unless authorised (under sections 40 to 43 in Part IV) or exempt.
+This is the general prohibition, for contravention of which penalties are set by section 23.
+Section 21 contains specific restrictions on financial promotion, including communicating an invitation or inducement to engage in investment activity in the course of business, with penalties for contravention being set by section 25.
+Section 85 prohibits dealing in transferable securities without an approved prospectus.
+Section 380(3) provides that, if, on the application of the FSA or the Secretary of State, the court is satisfied that any person may have contravened, or been knowingly concerned in the contravention of, a relevant requirement it may make an order restraining him from disposing of, or otherwise dealing with, any assets of his which it is satisfied he is reasonably likely to dispose of or otherwise deal with.
+A relevant requirement includes a requirement which is imposed by or under this Act (section 380(6)(a)) and so includes the requirement under section 19 to be authorised or exempt before carrying on a regulated activity.
+Under Part IV of FSMA, permission may be given subject to such requirements as the FSA thinks appropriate (section 43), which may include an assets requirement prohibiting the disposal of, or other dealing with, any of the permitted persons (As) assets or their transfer to a trustee approved by the FSA (section 48(3)).
+Under section 45(4), the FSA may on its own initiative vary a previously included Part IV permission to include an assets requirement.
+Under section 48(4) and (5), if the FSA imposes an assets requirement and gives notice to any institution with which a person (A) keeps an account, the notice has the effect that (a) the institution does not act in breach of any contract with A in refusing any instruction from A in the reasonably held belief that complying would be incompatible with the requirement and (b) if the institution complies with the instruction, it is liable to pay to the FSA an amount equal to that transferred from or paid out of As account.
+In relation to authorised persons, the FSA thus enjoys a right to impose a freezing order without going to court and without any occasion arising on which a cross undertaking could be required of it.
+The FSA also enjoys an exemption from liability in damages, set out in paragraph 19 of Schedule 1 to FSMA: (1) Neither the Authority nor any person who is, or is acting as, a member, officer or member of staff of the Authority is to be liable in damages for anything done or omitted in the discharge, or purported discharge, of the Authority's functions. (2) Neither the investigator appointed under paragraph 7 nor a person appointed to conduct an investigation on his behalf under paragraph 8(8) is to be liable in damages for anything done or omitted in the discharge, or purported discharge, of his functions in relation to the investigation of a complaint. (3) Neither sub paragraph (1) nor sub paragraph (2) applies (a) if the act or omission is shown to have been in bad faith; or (b) so as to prevent an award of damages made in respect of an act or omission on the ground that the act or omission was unlawful as a result of section 6(1) of the Human Rights Act 1998.
+Paragraph 19(1) of Schedule 1 would protect the FSA, if it was, for example, the subject of a claim by A on whom it had imposed an assets requirement under section 45(4), by an institution to which it had notified the imposition of such a requirement under sections 48(4) and (5) or by any other third person.
+Paragraphs 7 and 8 of Schedule 1 require the FSA to establish a scheme for the independent investigation of complaints against it (other than complaints more appropriately dealt with in another way, e.g. by referral to the Upper Tribunal under the appeals procedure contained in Part IX of FSMA or by the institution of other legal proceedings), and the issue and, where appropriate, publication of reports on such complaints.
+The present issue
+The issue now before the Supreme Court raises for consideration: (a) whether and how far the position of the FSA, seeking an interim injunction pursuant to its public law function and duty, is to be equated with that of a person seeking such an injunction in pursuance of private interests; (b) whether and how far the position regarding the giving of any cross undertaking differs according to whether it is to protect a defendant or a third party; and (c) whether there is any coherent distinction between cross undertakings in respect of third party losses and costs.
+Taking the first point, I propose to start with the requirements which apply when a claimant is pursuing private interests.
+Since the first half of the 19th century such claimants have when seeking an interim injunction been required to give the usual undertaking.
+That means an undertaking to abide by any order this Court may make as to damages in case the Court shall hereafter be of opinion that the Defendants . shall have sustained any by reason of this order which the [claimant] ought to pay: see e.g. Tucker v New Brunswick Trading Company of London (1890) 44 Ch D 249, 251.
+The practice regarding defendants is reflected in CPR 1998, Practice Direction (PD) 25A 5.1(1), requiring, unless the court orders otherwise, an undertaking to pay any damages which the respondent sustains which the court considers the applicant should pay.
+But modern practice, reflected in PD 25A 5.1A, also provides that, when the court orders an injunction it should consider whether to require an undertaking by the applicant to pay any damages sustained by a person other than the respondent, including another party to the proceedings or any other person who may suffer loss as a consequence of the order.
+Asset freezing (formerly Mareva) injunctions were developed by the courts in the late 1970s and 1980s.
+Because of their particular, potentially stringent effects, they are separately regulated in the rules.
+PD 25A 6 annexes a sample wording which may be modified in any particular case.
+In addition to an undertaking in the usual form in favour of the defendant, it includes an undertaking in favour of third persons in identical form to paragraph (4) of that originally required in this case (paragraph 6 above).
+The history of the undertaking in favour of third persons can be traced back to a statement by Lord Denning MR in Prince Abdul Rahman Bin Turki Al Sudairy v Abu Taha [1980] 1 WLR 1268, 1273 and to decisions by Robert Goff J in Searose Ltd v Seatrain UK Ltd [1981] 1 WLR 894 and Clipper Maritime Co Ltd of Monrovia v Mineralimportexport [1981] 1 WLR 1262.
+In Searose, Robert Goff J, building on Lord Dennings statement, held that, where a bank had to incur costs in identifying whether a bank account existed within the terms of a Mareva injunction, it should be entitled to an undertaking to cover its reasonable costs, before it incurred them.
+In Clipper Maritime the freezing injunction obtained by the claimants covered cargo or bunkers belonging to the defendants Mineralimportexport on board a vessel which was on time charter to Mineralimportexport and which was in the port of Barry.
+Its effect might have been to inhibit the port authority in its use of the port and to cause it loss of income.
+An undertaking was required to cover any actual income lost to the port authority.
+In the later case of Galaxia Maritime SA v Mineralimportexport [1982] 1 WLR 539, the defendants were again Mineralimportexport and a freezing injunction was initially granted to prevent them from removing from the jurisdiction (just before Christmas) a cargo on a third partys vessel which was only on voyage charter to Mineralimportexport.
+The Court of Appeal categorically refused to continue the interim injunction on any terms, since it could effectively block the third partys vessel indefinitely.
+Under the standard forms of injunction currently in use for both ordinary interim injunctions and freezing injunctions, the enforcement of the undertaking is expressed to be in the courts discretion.
+There is little authority in this area.
+Neill LJ undertook a useful review of the general principles in Cheltenham and Gloucester Building Society v Ricketts [1993] 1 WLR 1545, 1551D 1552D.
+The position regarding undertakings in favour of defendants has been more recently reviewed in Commercial Injunctions, by Steven Gee QC, 5th ed (2004 and First Supplement), paragraphs 11.017 11.032, while the authorities on undertakings in favour of third parties are covered in paragraphs 11.008 11.012.
+An inquiry into damages will ordinarily be ordered where a freezing injunction is shown to have been wrongly granted, even though the claimant was not at fault: paragraph 11.023.
+But, depending on the circumstances, it may be appropriate for the court to await the final outcome of the trial before deciding whether to enforce: see the Cheltenham and Gloucester case, p.1552B.
+However, Professor Adrian Zuckerman has pointed out (The Undertaking in Damages Substantive and Procedural Dimensions [1994] CLJ 546, 562) that it does not follow from a defendants success on liability that he did not in fact remove (or seek to remove) assets from the reach of the claimant, justifying an interim freezing order.
+The court retains a discretion not to enforce the undertaking if the defendants conduct makes it inequitable to enforce: F Hoffmann La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295, 361E, per Lord Diplock.
+It seems likely that compensation is assessed on a similar basis to that upon which damages are awarded for breach of contract: Cheltenham and Gloucester, p.1552C D, per Neill LJ.
+The position regarding third persons is necessarily different in certain respects.
+The purpose of the cross undertaking is to protect them so long at least as they are innocent third persons not implicated in the alleged wrongdoing or conduct justifying the freezing order whether or not the freezing order was justified as against the defendant.
+That purpose goes back to the orders first made in the Searose and Clipper Maritime cases.
+I turn to the position of an authority acting in pursuit of public functions.
+The leading authority is the Hoffmann La Roche case.
+Following a report by the Monopolies Commission the Department of Trade and Industry made an order under the relevant monopolies legislation: the Regulation of Prices (Tranquilising Drugs) (no. 3) Order 1973 (SI 1973 No 720), setting maximum prices for certain drugs.
+Hoffmann La Roche issued proceedings claiming that the Monopolies Commission report had been unfair and contrary to natural justice and was invalid, and that the Regulations based upon it were likewise ultra vires and invalid.
+The Department issued proceedings, and sought an injunction to restrain Hoffmann La Roche from charging prices in excess of the Order prices under a provision in the primary legislation (section 11 of the Monopolies and Restrictive Practices (Inquiry and Control) Act 1948) which provided that compliance with any such order shall be enforceable by civil proceedings by the Crown for an injunction or for any other appropriate relief.
+The issue argued was whether the Department should be required to give a cross undertaking in damages in order to obtain the order.
+The House recognised the general rule requiring a cross undertaking as a condition of the grant of an interim injunction in ordinary litigation: see e.g. per Lord Reid at p 341B.
+It recognised that, since the Crown Proceedings Act 1947, there was no continuing justification for the former blanket practice whereby the Crown was not required to give any such undertaking in any circumstances (even in cases where it was asserting proprietary or contractual rights which a private person could have and enforce): per Lord Reid at p 341C and Lord Diplock at p 362B H.
+But it considered, by a majority, that the Crown remains in a position different from that of any private individual when it brings what Lord Diplock described as a law enforcement action: p 363B.
+The majority did not express itself with one voice regarding the implications of this distinction.
+Lord Reid thought special circumstances or special reason to be required before the Crown should have to expose itself by cross undertaking: p 341E and G. Lord Cross of Chelsea however accepted that it might be fair to require that the Crown give a cross undertaking where the defendants defence was that what he is doing or proposing to do was not prohibited by the order in question, but that, where as here the defence was that what was on the face of it the law of the land was not in fact the law, exceptional circumstances would be required before the court should countenance the possibility that the Crown might be deterred from applying for an interim injunction by the need to give a cross undertaking: p 371D G. Lord Morris of Borth y Gest also focused on the apparent unlawfulness of the sales in excess of the order prices which Hoffmann La Roche was threatening.
+Lord Diplock saw no reason, since the Crown Proceedings Act, for a rigid rule that the Crown itself should never be required to give the usual undertaking in damages in a law enforcement action, but equally no basis for the converse proposition that the court . ought always to require an undertaking: p 364C D: this was because (p 364E): When . a statute provides that compliance with its provisions shall be enforceable by civil proceedings by the Crown for an injunction, and particularly if this is the only method of enforcement for which it provides, the Crown does owe a duty to the public at large to initiate proceedings to secure that the law is not flouted .
+Lord Diplock continued (p 364F G): I agree therefore with all your Lordships that the practice of exacting an undertaking in damages from the Crown as a condition of the grant of an interlocutory injunction in this type of law enforcement action ought not to be applied as a matter of course, as it should be in actions between subject and subject, in relator actions, and in actions by the Crown to enforce or to protect its proprietary or contractual rights.
+On the contrary, the propriety of requiring such an undertaking from the Crown should be considered in the light of the particular circumstances of the case.
+In concluding that no cross undertaking should be required, Lord Diplock repeated that the Crown was seeking to enforce the law by the only means available under the governing statute, and he, like Lord Morris and Lord Cross, stressed that Hoffmann La Roche was threatening to breach an apparently valid order approved by each House of Parliament: pp 364H 365B.
+On this basis, he also said (p 367A C): So in this type of law enforcement action if the only defence is an attack on the validity of the statutory instrument sought to be enforced the ordinary position of the parties as respects the grant of interim injunctions is reversed.
+The duty of the Crown to see that the law declared by the statutory instrument is obeyed is not suspended by the commencement of proceedings in which the validity of the instrument is challenged.
+Prima facie the Crown is entitled as of right to an interim injunction to enforce obedience to it.
+To displace this right or to fetter it by the imposition of conditions it is for the defendant to show a strong prima facie case that the statutory instrument is ultra vires.
+However, he went on (p 367C D): Even where a strong prima facie case of invalidity has been shown upon the application for an interim injunction it may still be inappropriate for the court to impose as a condition of the grant of the injunction a requirement that the Crown should enter into the usual undertaking as to damages.
+For if the undertaking falls to be implemented, the cost of implementing it will be met from public funds raised by taxation and the interests of members of the public who are not parties to the action may be affected by it.
+Lord Wilberforce, dissenting in Hoffmann La Roche, was unenthusiastic about English laws unwillingness to accept that a subject should be indemnified for loss sustained by invalid administrative action (p 359A), but rested his dissent ultimately on the fact that, without a cross undertaking, the Crown in Hoffmann La Roche would be put in a position where, if it ultimately lost the action, the injunction would have enabled it (through the National Health Service) to profit during the period while the injunction precluded Hoffmann La Roche from selling to the National Health Service at market, rather than order prices.
+Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd [1993] AC 227 was another case concerned with a claim to enforce apparently valid legislation, this time by a local authority and relating to Sunday trading.
+Lord Goff of Chieveley at p 274C D read the speeches in Hoffmann La Roche as dismantling an old Crown privilege and substituting for it a principle upon which, in certain limited circumstances, the court has a discretion whether or not to require an undertaking in damages from the Crown as law enforcer.
+In extending the principle to all public authorities, he said (p 274D E): The principle appears to be related not to the Crown as such but to [T]he the Crown when performing a particular function. considerations which persuaded this House to hold that there was a discretion whether or not to require an undertaking in damages from the Crown in a law enforcement action are equally applicable to cases in which some other public authority is charged with the enforcement of the law: see e.g. Lord Reid, at p. 341G, Lord Morris of Borth y Gest, at p. 352C, and Lord Cross of Chelsea, at p. 371B G.
+In In re Highfield Commodities Ltd [1985] 1 WLR 149 Sir Robert Megarry V C interpreted Hoffmann La Roche as deciding that no cross undertaking should be required of the Crown unless the defendant showed special circumstances justifying the requirement.
+In Attorney General v Wright [1988] 1 WLR 164 Hoffmann J regarded as undeniable (even if, to some eyes, not particularly attractive) the potency of the principle that Crown officials should not be inhibited from performing their duty to take action to enforce the law by the fear that public funds may be exposed to claims for compensation by people who have thereby caused [sic] loss (p 166C D).
+On the facts, however, he required an undertaking to be given by the receiver of, and to be met out of the funds of, the charity for whose benefit the Attorney General was suing to recover property.
+Although the Attorney General was not suing to protect any proprietary or contractual right of the Crown, he was suing in the proprietary interests of the charity, which could be expected to give an undertaking.
+In Director General of Fair Trading v Tobyward Ltd [1989] 1 WLR 517, Hoffmann J said that, whatever one might say about the policy, it is well established that the usual practice is that no cross undertaking is required when the Crown is seeking an interim injunction to enforce the law (p 524E H).
+In Securities and Investments Board v Lloyd Wright [1993] 4 All ER 210, Morritt J addressed the issues on the basis of defence counsels concession that it would not be appropriate that there should be a cross undertaking of damages in a law enforcement action (p 213H J), and in Customs and Excise Commissioners v Anchor Foods Ltd [1999] 1 WLR 1139 at p 1152C D, Neuberger J said that it would ordinarily not be right to require a cross undertaking in damages from Customs, but ordered one because of the unusual facts of this case, in which Customs was, to protect its right to VAT, seeking to halt a sale of business at an independent valuation to a new company.
+Finally, the Court of Appeal in United States Securities and Exchange Commission v Manterfield [2009] EWCA Civ 27, [2009] Lloyds Rep FC 203 applied the line of authority including Kirklees, In re Highfield and Lloyd Wright when endorsing the exercise of the judges discretion to dispense with the giving of a cross undertaking by the United States Securities and Exchange Commission.
+The Commission was seeking a freezing order in aid of Massachusetts proceedings brought in the interest of investors generally to recover assets obtained by Manterfield in the course of a fraudulent investment scheme involving the sale of limited partnership interests in an unregistered fund.
+Presenting the present appeal for Barclays, Mr Richard Handyside QC did not mount a direct attack on Hoffmann La Roche itself.
+Rather he submitted that it was distinguishable because it concerned enforcement of an apparently valid executive order in relation to which the only defence was that the order was invalid, and that the later authorities referred to in the preceding paragraph had read it too broadly.
+Mr Handyside did however also refer to Professor Zuckermanns article, which was avowedly critical of the decision in Hoffmann Roche.
+Professor Zuckermanns reasons included Lord Wilberforces, and he also argued that a cross undertaking can encourage greater care before interfering with a citizens liberty.
+He questioned the weight placed in Hoffmann La Roche on the presumption of validity of the relevant law.
+Mr Handyside submits that the same criticism applies, a fortiori, to the weight placed by Hoffmann J on the apparent strength of the complaint of misleading advertising on which the injunction was based in Tobyward.
+There is considerable general force in this particular criticism of Hoffmann La Roche.
+The purpose of a cross undertaking in favour of a defendant is to cover the possibility of loss in the event that the grant of an injunction proves to have been inappropriate.
+To refuse to require a cross undertaking because it appears, however strongly, unlikely ever to be capable of being invoked misses the point.
+The remoteness of the possibility of loss might indeed be thought to be a reason why the public authority would be unlikely to be inhibited from seeking injunctive relief by fear that public funds may be exposed to claims for compensation.
+I note that, although Lord Diplock attached some significance to the strength of the Crowns case in Hoffmann La Roche, he did not confine his comments on the difference between private litigation and law enforcement action to cases where the Crowns case was founded on apparently well founded legislation; on the contrary: see paragraph 24 above.
+In any event, however, this particular criticism does not impinge on the general distinction drawn in Hoffmann La Roche and subsequent cases between private litigation and public law enforcement action.
+In private litigation, a claimant acts in its own interests and has a choice whether to commit its assets and energies to doing so.
+If it seeks interim relief which may, if unjustified, cause loss or expense to the defendant, it is usually fair to require the claimant to be ready to accept responsibility for the loss or expense.
+Particularly in the commercial context in which freezing orders commonly originate, a claimant should be prepared to back its own interests with its own assets against the event that it obtains unjustifiably an injunction which harms anothers interests.
+Different considerations arise in relation to law enforcement action, where a public authority is seeking to enforce the law in the interests of the public generally, often in pursuance of a public duty to do so, and enjoys only the resources which have been assigned to it for its functions.
+Other than in cases of misfeasance in public office, which require malice, and cases of breach of the Convention rights within section 6(1) of the Human Rights Act 1998, it remains the case that English law does not confer a general remedy for loss suffered by administrative law action.
+That is so, even though it involves breach of a public law duty.
+In the present context, the fact that an injunction is discharged, or that the court concludes after hearing extended argument that it ought not in the first place to have been granted, by no means signifies that there was any breach of duty on the public authoritys part in seeking it.
+As I have said, Mr Handyside does not take issue with this general distinction, and the appeal has been argued accordingly.
+Mr Handyside does, however, take issue with the way in which Hoffmann La Roche has been interpreted as indicating that public authority claims to interim injunctions should be approached.
+Hoffmann la Roche has been understood at first instance as involving a usual or normal rule that a cross undertaking will not be required from the Crown.
+Mr Handyside submits that this understanding goes further than justified.
+In Hoffmann La Roche, only Lord Reid spoke of a general rule according to which special circumstances or reason must exist before a cross undertaking should be required from the Crown.
+Lord Morris was silent.
+But Lord Diplock said that the practice of exacting an undertaking ought not to be applied as a matter of course and should, on the contrary. be considered in the light of the particular circumstances of the case.
+This was a more neutral formulation, but still indicates a need to identify particular circumstances before a cross undertaking is required.
+Lord Morris and Lord Cross focused on the particular circumstance that the only defence involved a challenge to the validity of an apparently valid order.
+However, I do not regard that as a satisfactory demarcation of any distinction between public and private claims: paragraph 29 above.
+For reasons indicated in paragraph 31 above, there is in my view a more general distinction between public and private claims.
+Ultimately, there is a choice.
+Either the risk that public authorities might be deterred or burdened in the pursuit of claims in the public interest is accepted as a material consideration, or authorities acting in the public interest must be expected generally to back their legal actions with the public funds with which they are entrusted to undertake their functions.
+That latter approach could not be adopted without departing from Hoffmann La Roche, and Hoffmann La Roche draws a distinction between public and private claims which depends upon accepting the former approach.
+Hoffmann La Roche stands at least for the proposition that public authority claims brought in the public interest require separate consideration.
+Consistently with the speeches of Lord Reid and Lord Diplock (and probably also of Lord Cross), it indicates that no cross undertaking should be exacted as a matter of course, or without considering what is fair in the particular circumstances of the particular case.
+A starting point along these lines does not appear to me to differ significantly from the practice subsequently adopted at first instance: see paragraph 27 above.
+I accept its general appropriateness.
+Mr Handyside further submitted that, in whatever sense Hoffmann La Roche is understood, it concerned only the protection of defendants.
+The present appeal concerns the protection of third persons, who, unless the contrary is shown, are to be taken as having no involvement in the breach of the law alleged against the defendants.
+The present appeal certainly proceeds on the basis that Barclays had no such involvement.
+However, the distinction which Mr Handyside suggests does not in my opinion hold good.
+Speaking generally, a cross undertaking in relation to a defendant protects against the event that no injunction should have been granted, either when it was granted or in the light of the defendants ultimate success at trial.
+While it is possible to conceive of a case in which an injunction was wrongly granted on the material then available, but the defendant is at trial found to have breached the law, it is unlikely that the cross undertaking would then be enforced.
+A cross undertaking in relation to third persons protects against the event that an innocent third person, without involvement in whatever breach of the law is alleged against the defendant, suffers loss or expense through the grant of the injunction, whether this should or should not have occurred.
+In either case, therefore, it is loss caused by the grant of an injunction in circumstances where the person incurring the loss is essentially innocent that is covered by the cross undertaking.
+Finally, Mr Handyside submits that no sensible distinction can exist between a cross undertaking in respect of costs, which the FSA has accepted that Barclays should receive (paragraphs 6 and 7 above), and the cross undertaking in damages, which is at issue on this appeal.
+The FSA has, he submits, in effect, undermined its own case by conceding the former.
+This is not convincing.
+First, the appeal raises an issue of general principle, which cannot be resolved by a concession in a particular case.
+Second, there is to my mind a pragmatic basis for a distinction between specific costs and general loss.
+The rationale of Hoffmann La Roche, that public authorities should be able to enforce the law without being inhibited by the fear of cross claims and of exposing financially the resources allocated by the state for their functions, apply with particular force to any open ended cross undertaking in respect of third party loss.
+It does not apply in the same way to a cross undertaking in respect of third party expense.
+Even in a private law context, this distinction may sometimes be relevant to bear in mind.
+So Neuberger J thought in Miller Brewing Co v Mersey Docks & Harbour Co [2004] FSR 5, 81 paragraphs 44 45 (paragraphs not touched by criticism levelled at the actual decision in Mr Gees work on Commercial Injunctions, paragraph 11.015, into which it is unnecessary to go).
+The present case
+The present case resembles Hoffmann La Roche, Kirklees, Tobyward and Lloyd Wright.
+It is a case of a public authority seeking to enforce the law by the only means available under the governing statute.
+The FSA was acting under its express power to seek injunctive relief conferred by section 380(3).
+It was acting in fulfilment of its public duties in sections 3 to 6 of FSMA to protect the interests of the UKs financial system, to protect consumers and to reduce the extent to which it was possible for a business being carried on in contravention of the general prohibition being used for a purpose connected with financial crime.
+I therefore approach this appeal on the basis that there is no general rule that the FSA should be required to give a cross undertaking, in respect of loss suffered either by the defendants or by third parties.
+It is necessary to consider the circumstances to determine whether a cross undertaking should be required in this particular case.
+The circumstances include some further background considerations.
+First, there is no general duty in English public law to indemnify those affected by action undertaken under legislative authority.
+Innocent third parties may be affected in situations ranging from the Victorian example of trains run on an authorised railway line (Hammersmith and City Railway Company v Brand (1869) LR 4 HL 171) to the erection of a barrier on a pavement (Dormer v Newcastle upon Tyne Corp [1940] 2 KB 204) to police closure of a street following an incident.
+Secondly, if one focuses attention on acts for which fault might be alleged to attach to the FSA, the FSA will be liable in the unlikely event of a misfeasance in public office or in the event that its conduct amounts to a breach of the Human Rights Act Convention rights.
+But there is no basis in FSMA for treating the FSA as having a wider statutory or common law responsibility even to innocent third parties.
+Thus, thirdly, if the FSA were to fail to take appropriate steps to shut down unlawfully conducted activity, innocent third persons might suffer loss, but they could have no claim against the FSA.
+Fourthly, even in a case of positive action taken by the FSA affecting innocent third persons, the general protective duties and objectives of FSMA could not involve under FSMA or at common law any assumption of responsibility towards or any liability for breach of a duty of care enforceable at the instance of third persons: see e.g. Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15, [2004] 1 WLR 1057, Jain v Trent Strategic Health Authority [2009] UKHL 4, [2009] 1 AC 853 and Customs and Excise Commissioners v Barclays Bank plc [2006] UKHL 28, [2007] 1 AC 181.
+Paragraph 19 of Schedule 1 to FSMA in any event provides expressly that they do not.
+The present appeal concerns the fourth situation, in that the FSA was taking positive action to shut down what it alleged to be unlawful activity.
+An interim injunction obtained in such a situation may cause innocent third persons loss.
+They clearly could not complain about loss arising from an unlawful scheme being closed down.
+But, if the scheme proved after all to be lawful, they might be seen to have sustained loss which they should not in a perfect world have suffered.
+However, the FSA has powers under Part IV of FSMA allowing it without any application to the court to freeze the assets of an authorised person, in a way which could equally cause loss to innocent third persons.
+If the exercise of a Part IV freezing power should subsequently transpire to have been inappropriate, no basis exists upon which such third persons could claim to be indemnified in respect of such loss.
+Indeed paragraph 19 of Schedule 1 to FSMA would again clearly exclude the FSA from any risk of liability: see paragraph 12 above.
+There would be an apparent imbalance, if the FSA were required to accept potential liability under a cross undertaking when it addresses the activities of unauthorised persons and has therefore to seek the courts endorsement of its stance in order for a freezing order to issue.
+The Respondent sought also to gain assistance from paragraph 19 of Schedule 1 to FSMA.
+A cross undertaking is colloquially described as being in damages, and liability under it is measured on ordinary damages principles.
+But it is clear that it does not involve a liability for damages in a conventional legal sense.
+The cross undertaking is to the court.
+Liability under it, when the court in its discretion determines that the cross undertaking should be enforced, is in a sum assessed by the court, albeit using similar principles to those by which it measures damages.
+Accordingly, it is common ground that paragraph 19 cannot directly apply to prevent the FSA from being required to give, or from enforcement of, a cross undertaking.
+On the other hand, as the Court was told without contradiction, the enactment of paragraph 19 was not based and did not follow upon any consideration of the possibility that the FSA might be required to give a cross undertaking before being granted an injunction under section 380(3).
+That possibility was, so far as appears, not in the legislators mind, one way or the other.
+In Lloyd Wright (paragraph 27 above), Morritt J considered in a context paralleling the present a predecessor to paragraph 19 which existed in the form of section 187(3) of the Financial Services Act 1986.
+He rejected a submission of the Securities and Investment Board that this prevented the court from requiring a cross undertaking.
+But he went on (p 214h): Rather, it seems to me to be a clear pointer in the exercise of the discretion, which the court undoubtedly has, to indicate that no such cross undertaking should be required where the designated agency is, in fact, seeking to discharge functions exercisable pursuant to a delegation under the 1986 Act.
+It seems to me that that is a matter which, in the exercise of my discretion, I should take into account in concluding that no cross undertaking should be required.
+It is unnecessary on this appeal to express any view on the correctness of treating paragraph 19 as a clear pointer in a context where that paragraph cannot ex hypothesi apply.
+In the light of the factors identified in paragraphs 36 to 38, there is on any view no reason to move away from the starting position, which is that the FSA should not have to give any cross undertaking in order to obtain an injunction under section 380(3).
+HHJ Hodge QC considered that such a cross undertaking in favour of innocent third parties should be required as a matter of course, from the moment when any freezing order was first granted on an ex parte basis (para 66).
+The Court of Appeal was in my view right to disagree and substituted for the undertaking as originally given an undertaking in the limited form (i.e. excluding the italicised words) indicated in paragraphs 6 and 7 above.
+I would therefore dismiss this appeal.
+Further observations
+A further word is appropriate regarding the positions at the initial stage, where injunctive relief is sought on an ex parte (or without notice) basis, and at the later stage, when the matter comes before the court on notice to both parties as well perhaps as to third persons, such as Barclays.
+Normally, there would only be a very short period before an on notice hearing could occur, and normally one would expect any third person affected by an injunction to become aware of this risk, even if not given formal notice of the injunction by the FSA.
+Loss could in theory be sustained by either a defendant or a third person in that short period.
+But any cross undertaking required as a condition of the grant of interim injunctive relief on a without notice basis would have to be in general and unqualified terms, and therefore be of the kind which could cause most concern to a regulator worried about risk and resource implications.
+The present appeal concerns the position of the FSA at the without notice and on notice stages.
+The starting position at each stage should in my view be that no cross undertaking should be required unless circumstances appear which justify a different position.
+Any inhibition on the part of a public authority about giving an undertaking is likely to be greater, rather than less, at a without notice stage.
+To require a blanket undertaking in favour of third parties at that stage would provide no incentive to third parties to come forward and identify any real concerns that they might have.
+The better approach is in my view to regard the starting position, that no cross undertaking should be required, as being as applicable at the without notice stage as it is at the on notice stage.
+A defendant or a third party who is or fears being adversely affected by an injunction obtained under section 380(3) can and should be expected to come forward, to explain the loss feared and to apply for any continuation of the injunction to be made conditional on such cross undertaking, if any, as the court may conclude should in all fairness be required to meet this situation.
+Finally, whenever the court is considering whether to order an interim injunction without any cross undertaking, it should bear in mind that this will mean that the defendant or an innocent third party may as a result suffer loss which will be uncompensated, even though the injunction later proves to have been unjustified.
+This consideration was rightly identified by Neuberger J in Miller Brewing at paragraph 40.
+Conclusion
+For the reasons given in paragraphs 1 to 41, I would dismiss this appeal.
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+These two appeals raise questions of some significance arising out of the interrelationship of the statutory schemes relating to the protection of employees pensions and to corporate insolvency.
+The background to the two appeals is, in very summary terms, as follows: i. Many UK registered members of the Lehman group of companies, and all the UK registered members of the Nortel group of companies, have gone into insolvent administration; (a) One of those Lehman group companies entered into service ii. contracts with, and ran a pension scheme for the benefit of, employees who worked for other group members; (b) The Nortel group included a company which had a pension scheme, and which was insufficiently resourced to fund that scheme; iii.
+The pension scheme (the Scheme) in each case was a final salary scheme, which appears to be, and to have been for some time, in substantial deficit; iv.
+The Pensions Regulator subsequently initiated machinery under the Pensions Act 2004 to require certain other group members (the Target companies) to provide financial support for the Scheme; vs That machinery has been held up so it can be decided whether the liability under such a requirement would rank (a) as an expense of the Target companies administrations, (b) pari passu with the Target companies other unsecured creditors, or (c) as neither; vi.
+Under option (a) the liability would rank ahead of the unsecured creditors, and may well be paid in full; under option (b) it would rank equally with those creditors; under option (c) it would rank behind them, and would probably be worthless; vii.
+Briggs J and the Court of Appeal (in a judgment given by Lloyd LJ) concluded that option (b) was not open to them, and preferred option (a) to option (c); viii.
+The issue now comes before the Supreme Court.
+This judgment starts by explaining the relevant statutory provisions relating to pensions, which are mostly in the Pensions Act 2004 (the 2004 Act), in a description largely based on the exposition in the judgment of Briggs J, [2010] EWHC 3010 (Ch), [2011] Bus LR 766, paras 7 41.
+It then deals with the statutory provisions and rules relating to insolvency, in the Insolvency Act 1986 (the 1986 Act) and the Insolvency Rules 1986 (SI 1986/1925) (the Insolvency Rules), largely drawing on what Lloyd LJ said in the Court of Appeal, [2011] EWCA Civ 1124, [2012] Bus LR 818, paras 20 23 and 39.
+Next, it will explain the facts, in a summary reflecting what Briggs J said at paras 47 54 of his judgment.
+After a short discussion, the judgment will then turn to consider whether the liabilities in the present cases would rank pari passu with the unsecured creditors of the Target companies.
+It will then consider whether those liabilities rank as expenses of the administration.
+Finally, it will address the power of the court under the 1986 Act and the Insolvency Rules to vary the priority of the liabilities.
+The relevant statutory provisions relating to pensions In order to protect employees from the adverse consequences of an under
+funded occupational pension scheme, (i) the Social Security Act 1990 introduced a statutory debt regime by amending the Social Security and Pensions Act 1975, and (ii) the Pensions Act 1995 (the 1995 Act) introduced a minimum funding requirement regime.
+These were perceived to be inadequate in some respects, and the 2004 Act introduced a financial support direction (FSD) regime.
+The regimes under these Acts were introduced against the backdrop of European Directives, which require member states to take measures to protect the interests of employees or ex employees in relation to pension rights in the event of their employers insolvency.
+Section 75 of the 1995 Act
+Although it is the FSD regime under the 2004 Act which is of central importance on these appeals, section 75 of the 1995 Act is highly relevant.
+It provides that upon the happening of various events, which include an insolvency event, an amount equivalent to any shortfall in the assets of an occupational pension scheme (a scheme) as against its liabilities, which exists immediately prior to the relevant event, is to be a debt, known as a section 75 debt, due from the employer to the trustees of the scheme (the trustees).
+Under the section as originally drafted, an insolvency event was limited to the employer going into insolvent liquidation, but the 2004 Act extended the expression to include going into administration.
+In this judgment I shall similarly use the expression to cover going into administration or going into insolvent liquidation.
+Section 75(8) provides that a section 75 debt is not to be regarded as a preferential debt for the purposes of the 1986 Act.
+Section 75(4A) states that a section 75 debt is to be taken, for the purposes of an employers insolvency, to arise immediately before the occurrence of the insolvency event.
+The 2004 Act: the Regulator and the PPF
+The 2004 Act introduced both the Pensions Regulator (the Regulator) and the Pension Protection Fund (the PPF).
+The Regulator is a body corporate established by section 1, and, by section 4, it is given wide regulatory functions.
+When exercising any of those functions, the Regulator is required by section 100 to have regard to: 2(a) the interests of the generality of the members of the scheme to which the exercise of the function relates, and (b) the interests of such persons as appear to the Regulator to be directly affected by the exercise.
+Section 5(1) defines the Regulators main objectives, which include protecting the benefits of members of schemes, and reducing the risk of compensation having to be paid by the PPF.
+The PPF is financed from levies upon schemes.
+It operates by assuming the assets and liabilities of a deficient scheme, and then paying its members compensation at a prescribed rate (generally less than the full rate promised under the relevant scheme), using the industry wide levies for the purposes of meeting the shortfall between the deficient schemes assets and the prescribed level of compensation.
+The 2004 Act: the FSD regime and FSDs
+It was perceived that the creation of the PPF might encourage some employers to arrange their affairs so as to throw the burden of pension scheme deficiencies upon the PPF, which would unfairly burden other schemes by increasing the amount of the levies.
+An example of such an arrangement is where a group of companies uses a single company (a service company) to employ people who then work for other group companies.
+In such a case, the employees pension rights could be regarded as unfairly prejudiced if, by comparison with the resources of other group companies, the service company had very limited resources to meet a section 75 debt.
+The FSD regime was designed to mitigate such problems.
+In a nutshell, it enables the Regulator in specified circumstances (i) to impose, by the issue of a FSD to some or all of the other group companies (known as targets), an obligation to provide reasonable financial support to the under funded scheme of the service company or insufficiently resourced employer, and (ii) to deal with non compliance with that obligation by imposing, through a Contribution Notice (a CN), a specific monetary liability payable by a target to the trustees.
+The detailed provisions of the FSD regime are contained in sections 43 to 51 of the 2004 Act, and in the Pensions Regulator (Financial Support Directions etc) Regulations 2005 (SI 2005/2188) (the FSD Regulations).
+Section 43 is of central importance.
+Subsection (1) explains that the FSD regime extends to all occupational pension schemes other than money purchase schemes and certain other prescribed schemes.
+Section 43(2) contains the so called employer condition, and provides as follows: The Regulator may issue a [FSD] in relation to such a scheme if the Regulator is of the opinion that the employer in relation to the scheme (a) is a service company, or (b) is insufficiently resourced, at a time determined by the Regulator which falls within subsection (9) (the relevant time).
+Section 43(9) and the FSD Regulations define the relevant time as any time within a period of two years before the date of the determination of the Regulator to issue the FSD in question.
+It is known as the look back date.
+Service company is defined in section 44(2) as being a company within a group of companies which, by reference to its turnover, can be seen to be principally engaged in providing the services of its employees to other member companies in the group.
+Section 44(3) to (5) and the FSD Regulations explain that an employer is insufficiently resourced if two tests are satisfied.
+The first is that the value of its resources is less than 50% of the estimated section 75 debt in relation to a scheme, the amount of the shortfall being the relevant deficit.
+Secondly (limiting the situation to those involving companies), there must be a company which has (or two or more companies which between them have) resources not less than the relevant deficit, and which is (or are), inter alia, a company which is (or companies which are) connected with, or an associate of the employer (section 43(6)(c)).
+The 2004 Act and the FSD Regulations contain detailed provisions as to the manner in which a persons resources are to be assessed.
+Whereas the resources of an employer are incapable of being defined as having a negative value, the resources of persons associated or connected with the employer may be so defined.
+The formula for determining whether the insufficiently resourced condition is satisfied is known as the rich man/poor man test.
+The employer condition operates entirely by reference to the look back date chosen by the Regulator, rather than at the time when the FSD is issued (the issue date).
+Accordingly, the fact that, as at the date the FSD is issued, an employer may have ceased to be a service company, or the rich man/poor man test is not met, would not preclude a FSD.
+As to the target, section 43(4) provides that a FSD in relation to a scheme may be issued to one or more persons, but subsection (5)(a) limits the issue of a FSD to persons falling within subsection (6) at the relevant time (i.e. the look back date).
+Section 43(6)(a) and (c) respectively limit that class to the employer itself and, for present purposes, to a person who is connected with or an associate of the employer at the look back date.
+It is therefore irrelevant that, by the issue date, one or more targets which had the requisite net worth to satisfy the rich man part of the rich man/poor man test as at the look back date may no longer be solvent.
+Further, section 43(5)(a) does not limit the range of potential targets to those which satisfy the rich man part of the rich man / poor man test at the look back date.
+Section 43(5)(b) states that a FSD can only be issued to a particular target if the Regulator is of the opinion that it is reasonable to impose the requirements of the direction on that person; this is often called the reasonableness condition.
+Section 43(3) states that a FSD should: [require] the person or persons to whom it is issued to secure (a) that financial support for the scheme is put in place within the period specified in the direction, (b) that thereafter that financial support or other financial support remains in place while the scheme is in existence, and (c) that the Regulator is notified in writing of prescribed events in respect of the financial support as soon as reasonably practicable after the event occurs.
+Prescribed events include an insolvency event affecting the employer and any target, and any failure to comply with the requirements of the FSD.
+Section 45(1) and (2) define financial support as one or more of the following arrangements: (a) an arrangement whereby all the members of the group are jointly and severally liable for the whole or part of the employers pension liabilities in relation to the scheme; (b) [a legally binding] arrangement whereby a company which meets [certain] requirements and is the holding company of the group is liable for the whole or part of the employers pension liabilities in relation to the scheme; (c) an arrangement which meets [certain] requirements and whereby additional financial resources are provided to the scheme ; (d) such other arrangements as may be prescribed.
+Subsection 45(3) states that the Regulator may only approve any arrangement if satisfied that it is reasonable in the circumstances.
+Subsection 45(4) explains that the employers pension liabilities include, but are not limited to, the employers section 75 debt.
+A FSD will not itself either contain or be accompanied by a specification of what would constitute reasonable arrangements.
+It will simply require that the target secures that financial support for the scheme is put in place.
+It is for the target (alone or in conjunction with other targets) to propose reasonable arrangements for written approval by the Regulator.
+What the FSD must specify, pursuant to subsection 43(3)(a), is the period within which financial support for the scheme is to be put in place.
+By contrast, the period during which that support is to remain in place is, by reference to subsections 43(3)(b) and (10), the whole of the period until the scheme is wound up.
+Section 43(7) provides that, when deciding whether it is reasonable to impose the requirements of a FSD, the Regulator is to have regard to such matters as the Regulator considers relevant including, where relevant, the following matters: (a) the relationship which the person has or has had with the employer (including whether the person has or has had control of the employer ), (b) in the case of a person falling within [section 43(6)(c)], the value of any benefits received by that person from the employer, (c) any connection or involvement which the person has or has had with the scheme, (d) the financial circumstances of the person, .
+The FSD regime is capable of applying to almost any company within a group which has a service company, or a potentially insufficiently resourced employing company, with a potentially under funded scheme.
+Accordingly, the consequential contingent liabilities it creates could undermine the financial stability of potential targets.
+Section 46(2) attempts to mitigate this problem by providing for applications to the Regulator to determine that: (a) the employer in relation to the scheme would not be a service company for the purposes of section 43, (b) the employer in relation to the scheme would not be insufficiently resourced for the purposes of that section, or (c) it would not be reasonable to impose the requirements of a financial support direction, in relation to the scheme, on the applicant.
+Once issued, such a clearance statement binds the Regulator in relation to the power to issue a FSD unless there has been a relevant change of circumstances from those described in the application.
+The 2004 Act: the FSD regime and CNs
+The Regulator can issue a CN where there has been non compliance with a FSD.
+Whereas a single FSD can be issued in relation to a scheme (albeit to one or more targets), CNs are only to be issued on a target by target basis.
+Thus, section 47(4)(d) expressly contemplates that a CN may be issued to one target, where others have proposed arrangements in response to a FSD which have received the Regulator's approval.
+Section 47(3) imposes a reasonableness condition upon the issue of a CN to a particular target.
+Potentially relevant considerations are listed in subsection (4).
+In addition to those listed in section 43(7) in relation to FSDs, there are two further considerations, namely: (a) whether the person has taken reasonable steps to secure compliance with the financial support direction [and] (d) the relationship which the person has or has had with the parties to any arrangements put in place in accordance with the direction (including, where any of those parties is a company within the meaning of subsection (11) of section 435 of the Insolvency Act 1986, whether the person has or has had control of that company within the meaning of subsection (10) of that section).
+By contrast with a FSD, a CN is required to be specific as to the amount payable by the target.
+By section 47(2) the notice must state that the target is under a liability to pay the scheme trustees or managers a specified sum.
+By section 48, that sum is to be either the whole or a specified part of the amount which the Regulator estimates to be the amount of the section 75 debt at the time of non compliance with the FSD section 75 debt (if by then crystallised) or (if not crystallised) the Regulators estimate of what such debt would be if it had crystallised at that date.
+Section 49(3) provides that [t]he sum specified in the notice is to be treated as a debt due from the person to the trustees or managers of the scheme.
+Provision is also made for the Regulator (or, in specified circumstances, the Board of the PPF) to exercise any powers of the trustees or managers to recover the debt.
+CNs can be issued to two or more targets, and to create joint and several liability for a specified amount.
+Section 50 enables the Regulator to restrain the trustees or managers of the scheme from pursuing recovery of the section 75 debt while, at the same time, a CN is being enforced.
+Section 50(6) ensures that any payments under a CN are treated as reducing the amount of the section 75 debt.
+Finally, section 50(9) enables the Regulator to reduce the amount specified in a CN where, for example, there have in the meantime been payments of part of the section 75 debt.
+The 2004 Act: Procedure
+The 2004 Act and the FSD Regulations lay down a fairly elaborate procedural code for the implementation of functions of the Regulator, including the FSD regime.
+The functions of the Regulator are divided between regulatory functions, which are exercisable by its executive arm, and reserved regulatory functions, which must be exercised by its Determinations Panel (the DP).
+Decisions to issue a FSD and a CN are reserved functions, whereas the decision whether to give written approval to proposed arrangements under section 45 is not.
+Although the Regulator has a degree of discretion as to its procedure, in relation to the FSD regime it must comply with what is called in section 96 the standard procedure, which involves, as a minimum: 2(a) the giving of notice to such persons as it appears to the Regulator would be directly affected by the regulatory action under consideration (a warning notice), (b) those persons to have an opportunity to make representations, (c) the consideration of any such representations and the determination whether to take the regulatory action under consideration, (d) the giving of notice of the determination to such persons as appear to the Regulator to be directly affected by it (a determination notice), (e) the determination notice to contain details of the right of referral to the Tribunal .
+The issue of a FSD and a CN must each be subject to this procedure.
+The Tribunal is now the Upper Tribunal (Tax and Chancery Chamber), from which an appeal lies to the Court of Appeal.
+By section 103(4) the Tribunal must, on a reference, determine what (if any) is the appropriate action for the Regulator to take in relation to the matter referred to it.
+The Tribunal must therefore approach the issue before it afresh rather than by way of reviewing the decision of the Regulator or the DP.
+It is worth briefly summarising the timescale involved in these procedures.
+Before implementing the standard procedure, the Regulator must identify a pension fund which appears to be at risk, and investigate whether the conditions for the implementation of the FSD regime are satisfied; it must then address all matters relevant to the exercise, including the reasonableness condition for the issue of a FSD to each potential target.
+The ensuing standard procedure potentially involves six stages at which the target and others can make representations, namely (i) after a warning notice, (ii) following a determination (before the Tribunal), (iii) following a FSD, (iv) after a warning notice that a CN may be issued, (v) upon a determination that it should be issued (before the Tribunal), (vi) even after the issue of a CN, an adjustment may be asked for in the light of payments by others.
+At every stage, the Regulator or the Tribunal is required to have regard to the interests of the target as a person directly affected.
+The Insolvency legislation
+Administration and liquidation
+For present purposes, there are two relevant types of corporate insolvency procedure, administration and liquidation.
+Liquidation, or winding up, has always been a feature of company law, and it can be invoked whether or not a company is insolvent, although insolvent liquidations are more common.
+Administration was first introduced by the 1986 Act.
+At that time, it did not allow for distributions to creditors of the company within the administration.
+If the administration did not succeed in rescuing the company, it was expected that a winding up would follow, and the available assets would be distributed to creditors within the liquidation.
+The Enterprise Act 2002 (the 2002 Act) rendered it possible for assets to be distributed to creditors by administrators, so that a winding up can be avoided. (Conversely, a company which is in liquidation may now come out of it and go into administration.) There may be companies which go into liquidation without having been in administration, but most of those companies with which the present cases are concerned (apart from one which is not insolvent) are in administration, and may or may not eventually go into liquidation (and two of the Lehman group companies are neither in administration nor in liquidation).
+In general, the unsecured debts of a company after an insolvency event are payable pari passu to the relevant creditors, who claim payment by proving for their debts.
+There has to be a cut off date to determine the class of creditors who are to participate in the distribution of the company's available net assets.
+As the law stood as regards the companies with which these appeals are concerned, the cut off date for claims in a liquidation is the date on which the company goes into liquidation, whether or not the liquidation was immediately preceded by an administration.
+The cut off date for claims in an administration is the date on which the company entered administration.
+Under this regime, if an administration is followed immediately by a liquidation, the debts provable in the liquidation would include any which arise during the administration, although debts provable in the administration would be limited to those arising before the administration.
+Before turning to the relevant statutory provisions, two points may be worth noting in passing.
+First, the position described in para 35 above has now changed.
+The cut off date for claims in a liquidation, which follows an administration started after 5 April 2010, is the date when the administration began.
+The same issue as arises in these appeals can still arise.
+However, there will no longer be an artificial distinction between the positions where the company proceeds from administration to winding up and where it does not.
+The change will tend to increase the importance of the dispute as to the correct treatment for insolvency purposes of the liabilities arising under a FSD or a CN.
+Secondly, in relation to the companies in the present cases, it is common ground that if a liability of such a company arises during the administration, and a winding up were to follow later, that liability can be the subject of proof in the liquidation.
+The relevant provisions of the 1986 Act and the Insolvency Rules
+In a liquidation of a company and in an administration (where there is no question of trying to save the company or its business), the effect of insolvency legislation (currently the 1986 Act and the Insolvency Rules, and, in particular, sections 107, 115, 143, 175, 176ZA, and 189 of, and paras 65 and 99 of Schedule B1 to, the 1986 Act, and rules 2.67, 2.88, 4.181 and 4.218 of the Insolvency Rules), as interpreted and extended by the courts, is that the order of priority for payment out of the companys assets is, in summary terms, as follows: (1) Fixed charge creditors; (2) Expenses of the insolvency proceedings; (3) Preferential creditors; (4) Floating charge creditors; (5) Unsecured provable debts; (6) Statutory interest; (7) Non provable liabilities; and (8) Shareholders.
+So far as expenses of an insolvency are concerned, rule 12.2 of the Insolvency Rules (rule 12.2) states that: (1) All fees, costs, charges and other expenses incurred in the course of winding up, administration or bankruptcy proceedings are to be regarded as expenses of the winding up or the administration or, as the case may be, of the bankruptcy.
+As to expenses in a liquidation, rule 4.218 (rule 4.218) provides: (1) All fees, costs, charges and other expenses incurred in the course of the liquidation are to be regarded as expenses of the liquidation. (3) [T]he expenses are payable in the following order of priority (a) expenses properly chargeable or incurred by the official receiver or the liquidator in preserving, realising or getting in any of the assets of the company or otherwise in the preparation or conduct of any legal proceedings . or in the preparation or conduct of any negotiations; (e) the cost of any security provided by a liquidator; (m) any necessary disbursements by the liquidator in the course of his administration ; (n) the remuneration or emoluments of any person who has been employed by the liquidator to perform any services for the company ; (o) the remuneration of the liquidator ; (p) the amount of any corporation tax on chargeable gains accruing on the realisation of any asset of the company; (r) any other expenses properly chargeable by the liquidator in carrying out his functions in the liquidation.
+The equivalent provision in relation to the expenses of an administration is rule 2.67(1) (rule 2.67(1)), which states that The expenses of the administration are payable in the following order of priority, namely, (a) expenses properly incurred by the administrator in performing his functions in the administration of the company; (b) the cost of any security provided by the administrator in accordance with the Act or the Rules; (d) any amount payable to a person employed to assist in the preparation of a statement of affairs .; (f) any necessary disbursements by the administrator in the course of the administration ; (g) the remuneration or emoluments of any person who has been employed by the administrator to perform any services for the company .; (h) the remuneration of the administrator ; (j) the amount of any corporation tax on chargeable gains accruing on the realisation of any asset of the company .
+Where the assets of the company are insufficient to meet the totality of the expenses, rule 2.67(2) and (3) gives the court power to make an order as to the payment out of the assets of the expenses incurred in the administration in such order of priority as the court thinks just.
+Turning to unsecured debts and liabilities which are not expenses or preferential debts, rules 4.181 and rule 2.69 of the Insolvency Rules apply to liquidations and administrations respectively, and make it clear that, in so far as they are provable, they rank equally and, if there is insufficient money to meet them all, that they are to be abate[d] in equal proportions among themselves.
+In relation to what constitutes a provable debt, rule 12.3 of the Insolvency
+Rules in its form which applies to the instant administrations (rule 12.3) is headed Provable debts, and it provides as follows: (1) Subject as follows, in administration, winding up and bankruptcy, all claims by creditors are provable as debts against the company , whether they are present or future, certain or contingent, ascertained or sounding only in damages. (3) Nothing in this Rule prejudices any enactment or rule of law under which a particular kind of debt is not provable, whether on grounds of public policy or otherwise.
+Rule 13.12 of the Insolvency Rules (rule 13.12) is of critical importance on these appeals and it states: (1) Debt in relation to the winding up of a company, means. any of the following (a) any debt or liability to which the company is subject at the date on which the company went into liquidation; (b) any debt or liability to which the company may become subject after that date by reason of any obligation incurred before that date; (2) For the purposes of any provision of the Act or the Rules about winding up, any liability in tort is a debt provable in the winding up, if either (a) the cause of action has accrued at the date on which the company went into liquidation; or (b) all the elements necessary to establish the cause of action exist at that date except for actionable damage. (3) For the purposes of references in any provision of the Act or the Rules about winding up to a debt or liability, it is immaterial whether the debt or liability is present or future, whether it is certain or contingent, or whether its amount is fixed or liquidated, or is capable of being ascertained by fixed rules or as a matter of opinion . (4) except in so far as the context otherwise requires, liability means (subject to paragraph (3) above) a liability to pay money or money's worth, including any liability under an enactment, any liability for breach of trust, any liability in contract, tort or bailment, and any liability arising out of an obligation to make restitution. (5) This Rule shall apply where a company is in administration and shall be read as if references to winding up were references to administration.
+The relevant facts
+The Lehman group
+The Lehman group was a very substantial international financial concern which notoriously collapsed on 15 September 2008.
+The main London based group companies in the group were placed into administration that day, and I will refer to the administrators as the Lehman Administrators.
+The ultimate parent company of the Lehman group is Lehman Brothers Holdings Inc. (LBHI), a company incorporated in Delaware USA, which commenced Chapter 11 bankruptcy proceedings in September 2008, and emerged from them in March 2013.
+The main UK operating company is Lehman Brothers International (Europe) (LBIE), an unlimited company.
+The principal Lehman employer company within the UK, providing employees on secondment for most of the group's European activities, based in London, is Lehman Brothers Limited (LBL).
+When LBL went into administration on 15 September 2008, it crystallised a section 75 debt in relation to the Lehman Brothers Pension Scheme of approximately 120m.
+LBL is a shareholder in LBIE, and therefore liable without limit for LBIEs liabilities.
+Both LBIE and Lehman Brothers Europe Limited (LBEL), the other main London operating company, are subsidiaries of Lehman Brothers Holdings plc (LBH), which is itself wholly owned by Lehman Brothers UK Holdings Limited (LBUKH), which is in turn an indirect subsidiary of LBHI.
+Shortly after the Lehman group crash, the Regulator began investigations, with the consent of the Lehman Administrators, into the Lehman companies pursuant to notices under section 72 of the 2004 Act.
+Warning notices were issued to a number of Lehman group companies on or after 24 May 2010 on the ground that LBL was a service company, and the other requirements of section 43 of the 2004 Act were satisfied.
+There was then an oral hearing in September 2010 before the DP (at which the Lehman Administrators solicitors attended to observe, but made no submissions).
+A determination was then made by the DP on 13 September 2010 that a FSD should be issued against six Target companies, namely LBHI, LBIE, LBEL, LBH, LBUKH and Lehman Brothers Asset Management (Europe) Limited, which is no longer part of the Lehman group and is now called Neuberger Newman Europe Limited.
+The FSD process in relation to the Lehman companies is now stayed until after the outcome of these applications.
+The Nortel Group
+Prior to its collapse in January 2009, the Nortel group carried on a very substantial international telecommunications, computer network and software business.
+Its ultimate parent company is Nortel Networks Corporation (NNC) based in Canada.
+Its main Canadian operating company was Nortel Networks Limited (NNL) and its substantial USA business was headed by Nortel Networks Inc. (NNI), a direct subsidiary of NNL.
+The group's principal operating company in the UK was Nortel Networks UK Limited (NNUK) which is also a direct subsidiary of NNL.
+Since June 2000 it is principal Nortel employer in relation to the Nortel Networks UK Pension Plan (the Nortel Scheme).
+NNUK had a number of subsidiaries incorporated in various European countries.
+In addition, the European business was also carried on by certain European subsidiaries of NNL, including the applicants Nortel Networks SA, Nortel Networks France SAS and Nortel Networks (Ireland) Limited.
+At the time of the group's collapse in January 2009, NNUKs section 75 debt crystallised in an amount of about 2.1bn.
+Upon the group's collapse, NNC and NNL sought protection under Canadian bankruptcy law to facilitate the reorganisation of the group for the benefit of its creditors.
+On the same day NNI was placed into Chapter 11 bankruptcy in the United States, whilst NNUK, fifteen of its subsidiaries and the three European subsidiaries of NNL referred to above were placed into administration in England.
+The English administrators of the nineteen Nortel companies (the Nortel Administrators) have cooperated with other Nortel group office holders worldwide, in the process of selling the Nortel groups businesses along business rather than corporate demarcation lines and total global realisations of approximately US$7.5bn have been made.
+The Regulator's investigations into the Nortel Scheme began in early 2009, with the benefit of information provided by the Nortel Administrators.
+A warning notice was issued on 11 January 2010 to twenty nine Target companies in the Nortel group, on the basis that NNUK was insufficiently resourced and the other requirements of section 43 of the 2004 Act were satisfied.
+Representatives of the Nortel Administrators were present as observers, but did not make any representations at the oral hearing before the DP on 2 June 2010.
+After that hearing, the DP issued a determination notice on 25 June 2010 deciding that a FSD should be issued to the applicant Nortel companies, together with certain other Target companies.
+Following a reference to the Tribunal by the applicant Nortel companies and certain other of the Target companies, the automatic stay of the FSD process means that no FSD has yet been issued to those referring Target companies.
+The Tribunal proceedings have been informally stayed pending the outcome of these applications.
+Overview
+The issue in both appeals is how the administrators of a target should treat the targets potential liability under the FSD regime (and in due course the liability under a CN) in a case where the FSD is not issued until after the target has gone into administration.
+The courts below both held that the potential liability constituted an expense of the administration, falling within category (2) as described in para 39 above, so that it took priority over the normal run of unsecured creditors and even over the preferential creditors.
+Four possibilities have been canvassed before us.
+The first is that the courts below were right.
+The second is that the potential liability is an ordinary provable unsecured debt, ranking pari passu with other unsecured debts falling within category (5).
+The third possibility is that it is not a provable debt within rule 13.12, and therefore it falls within category (7).
+The fourth possibility is that, if the third is correct, then the court could and should direct the administrators to treat the potential FSD liability more favourably.
+Counsel representing the various parties very sensibly divided up the issues between them, so as to ensure that there was no repetition, and it is right to record the courts gratitude for the way the appeals were argued.
+Both Briggs J and the Court of Appeal felt constrained by a consistent line of authority, of which the most recent is R (Steele) v Birmingham City Council [2006] 1 WLR 2380, from holding that the potential liability as a result of a FSD issued after the commencement of an insolvent administration or liquidation (which I will refer to as an insolvency event) could constitute a provable debt within rule 12.3, although it appears that they would have so held if they had felt able to do so (see eg Briggs Js reluctance at para 191 of his judgment).
+They also considered that the effect of the House of Lords decision in In re Toshoku Finance UK plc [2002] 1 WLR 671 was that the potential liability was to be treated as an expense of the administration.
+Before this court, it was common ground that the potential liability under a FSD could not be both a provable debt and an expense of the administration, but there was discussion as to which should be considered first.
+In some cases, a liability which would otherwise be a provable debt can be, on special facts, an expense of the administration or liquidation (as in In re ABC Coupler and Engineering Co Ltd (No 3) [1970] 1 WLR 702), which may seem to suggest that the expense issue should be considered first.
+However, in the light of the common ground in this case, it appears to me that it is appropriate to consider the provable debt issue first, although it would be wrong not to address the expense question as well.
+Before I turn to examine in detail the arguments on the two issues, it is right to say that, at any rate on the face of it, the sensible and fair answer would appear to be that the potential liability of a target, under a FSD issued after an insolvency event, and in particular the liability under a CN issued thereafter, should be treated as a provable debt.
+There seems no particular sense in the rights of the pension scheme trustees to receive a sum which the legislature considers they should be entitled to receive having any greater or any lesser priority than the rights of any other unsecured creditor.
+It is common ground that if a CN had been issued in respect of a company before an insolvency event, it would give rise to a provable debt, and the courts below considered that, if a CN were issued after an insolvency event, it would give rise to a provable debt if it was based on a FSD issued before the insolvency event.
+It appears somewhat arbitrary that the characterisation and treatment of the liability under the FSD regime should turn on when the FSD or CN happens to have been issued, if it is based on a state of affairs which existed before the insolvency event.
+The notion that the potential liability under the FSD regime should be a provable debt if the FSD is issued after the administration or liquidation is supported by the fact any section 75 debt would itself be a provable debt, and not a preferential debt, in any insolvent liquidation or administration of an employer.
+That is clear from the provisions summarised in para 7 above.
+It would be strange if the employer companys statutory obligation to make good a shortfall in its employees pension scheme ranked lower in its insolvency than the more indirect statutory obligation of a target to make that deficiency good ranked in the targets insolvency.
+Indeed, it would be somewhat surprising if there was any significant difference in the treatment of the two types of obligation, in the light of the interrelationship between the FSD regime and the section 75 debt as evidenced for instance by section 50(6) of the 2004 Act.
+If the decisions below were correct, it would also mean that the legislature had given the Regulator a significantly valuable and somewhat arbitrary power, in what may (in the light of what is said in para 63 below) be an admittedly rare case in practice.
+Where the Regulator is proposing to issue a FSD in respect of a company not yet in administration or liquidation, it would be well advised to wait for the insolvency event, if the decisions below are right, because the amount recoverable under a subsequent CN would inevitably be greater than under a CN issued following a FSD issued before the insolvency event.
+The liability under the FSD regime could be said to be some sort of indirect liability for past wages of employees, as pensions are often treated as deferred pay.
+However, quite apart from the fact that that argument involves a considerable stretch (not least because the liability is not that of the employer or former employer), it would prove too much.
+If the potential liability under consideration in these appeals counted as expenses, they would rank ahead of past wages and holiday pay, which have preferential status ie they would fall within category (3), not (5), in para 39 above.
+It also seems unlikely that it can have been intended that liability under the FSD regime could rank behind provable debts.
+One would have expected that FSDs and CNs would normally be issued in respect of insolvent companies (that certainly appears to have been the invariable experience so far); accordingly, it would mean that, save in very unusual cases, nothing would be paid in respect of most FSDs issued after an insolvency event.
+Further, it would be a relatively unusual case where a FSD, let alone a CN, was issued before an insolvency event.
+As Briggs J said, the investigations, steps and opportunity for representations, required by the 2004 Act, as summarised in para 34 above, are such that a FSD would rarely be issued for many months after the Regulator is first aware of a possible problem, and the time before a CN could be issued could easily be much more than a year.
+With those preliminary observations, I turn to consider whether the liability under a FSD issued after a target has gone into administration or liquidation (ie after an insolvency event) is (i) a provable debt, or (ii) an expense of the administration/ liquidation, and (iii) if it is neither, whether the court can require the administrator or liquidator to treat it as if it was.
+Is the liability under a FSD issued after an administration a provable debt?
+In the light of the reference in rule 13.12(4) to any liability under an enactment, it appears clear that a liability under a CN, which on any view imposes a duty on the target to pay a sum of money, would be capable of giving rise to a liability.
+The question, therefore, is whether the potential liability under a FSD which was issued after an insolvency event is capable of being a liability falling within the ambit of rule 13.12(1).
+The definition of provable debt in rule 12.3 is strikingly wide, particularly when the rule is read together with rule 13.12, which defines debt.
+It is therefore unsurprisingly not in issue that the consequences for a target of, or at least following, the issuing of a FSD constitute a liability within the meaning of rule 13.12.
+However, where a FSD is issued after the target goes into administration or liquidation, the argument which has to be addressed is whether any potential liability thereby created falls within rule 13.12(1), because, if it does not, then it cannot constitute a debt for the purposes of the rule, and therefore cannot be a provable debt for the purposes of rule 12.3.
+The primary argument advanced in support of the contention that the potential liability under a FSD notice issued after the insolvency event gives rise to a provable debt was based on the contention that it would be a liability to which the company may become subject after [the insolvency event] by reason of any obligation incurred before that date within rule 13.12(1)(b).
+However, it was also argued that, in the light of the very wide ambit of rule 13.12(3) and its reference to future, contingent and matter of opinion, the potential liability would fall within rule 13.12(1)(a), as the potential liability was, as at the date of the insolvency event, a liability to which the company is subject.
+Does the potential liability fall within rule 13.12(1)(a)?
+It is convenient first to deal with the argument that potential liability under a FSD issued against a company after the start of its administration or liquidation gives rise to a liability which falls under rule 13.12(1)(a).
+This argument is based on the simple proposition that the risk of being issued with a FSD is a contingent liability, and is therefore a liability for the purposes of rule 13.12(1)(a) as a result of rule 13.12(3).
+If this argument was right, it would avoid the possible problem thrown up by the closing ten words of rule 13.12(1)(b).
+The argument would be easy to understand were it not for rule 13.12(1)(b).
+Para (b) of rule 13.12(1) contains a limitation, in that it provides that, if a company in liquidation or administration becomes subject to a liability after the date of the insolvency event, then that liability can only be treated as a debt under that paragraph if it arises by reason of any obligation incurred before that date.
+If para (a) of rule 13.12(1) could apply to a liability which arises after the insolvency event, then it would not only render para (b) otiose, but it would also effectively override this limitation.
+In other words, the very limitation which rule 13.12(1)(a) is being invoked to avoid represents the reason why rule 13.12(1)(a) cannot be invoked.
+It is fair to say that it is somewhat ironic to invoke para (b) to limit the ambit of para (a), when it would appear that the purpose of para (b) is to extend the ambit of para (a).
+However, the provisions of the Insolvency Rules, and of each rule of those Rules, have to be read in a sensible and coherent way, and one has to read paras (a) and (b) so that they work together.
+I agree with the view expressed by David Richards J in In re T & N Ltd [2006] 1 WLR 1728, para 115, that para (a) is concerned with liabilities to which the company is subject at the date of the insolvency event, whereas para (b) is directed to those liabilities to which it may become subject subsequent to that date, and that there is no overlap between these two categories.
+Accordingly, if there is a debt or liability in this case, it cannot fall within para (a): the issue is whether it falls within para (b).
+Does the potential liability fall within Rule 13.12(1)(b)?
+There is no doubt that the liability which is imposed on a target on the issuing of a FSD after the commencement of its administration or liquidation is a liability for the purposes of rule 13.12(1)(b), as it is a liability under an enactment within rule 13.12(4).
+The question is, however, whether it can be said to be a liability which arose by reason of any obligation incurred before the insolvency event.
+In these cases, a Target companys liability under the FSD scheme arises because it was a member of a group of companies, which, to put it very loosely, fell within the scope of the regime (as the group included a company which had a pension scheme, and that company was a service company, or insufficiently resourced).
+In order for the liability in issue to fall within rule 13.12(1)(b), therefore, the fact that the Target company was a member of such a group must amount to a sufficient obligation incurred within the meaning of that rule, before the target went into administration.
+Timing is no problem in the present cases, because each of the Target companies in the Lehman and Nortel groups were members of a group which fell within the scope of the regime, as I have used that expression, well before they went into administration.
+That issue thus centres on the meaning of the word obligation in rule 13.12(1)(b).
+The meaning of the word obligation will, of course, depend on its context.
+However, perhaps more than many words, obligation can have a number of different meanings or nuances.
+In many contexts, it has the same meaning as liability, but it clearly cannot have such a meaning here.
+Indeed, in the context of rule 13.12, it must imply a more inchoate, or imprecise, meaning than liability, as the liability is what can be proved for, whereas the obligation is the anterior source of that liability.
+Where a liability arises after the insolvency event as a result of a contract entered into by a company, there is no real problem.
+The contract, in so far as it imposes any actual or contingent liabilities on the company, can fairly be said to impose the incurred obligation.
+Accordingly, in such a case the question whether the liability falls within para (b) will depend on whether the contract was entered into before or after the insolvency event.
+Where the liability arises other than under a contract, the position is not necessarily so straightforward.
+There can be no doubt but that an arrangement other than a contractual one can give rise to an obligation for the purposes of para (b).
+That seems to follow from rule 13.12(4).
+As Lord Hoffmann said, (albeit in a slightly different context) in relation to contingent liabilities arising on a liquidation, in Secretary of State for Trade and Industry v Frid [2004] 2 AC 506, para 19, [h]ow those debts arose whether by contract, statute or tort, voluntarily or by compulsion is not material.
+However, the mere fact that a company could become under a liability pursuant to a provision in a statute which was in force before the insolvency event, cannot mean that, where the liability arises after the insolvency event, it falls within rule 13.12(1)(b).
+It would be dangerous to try and suggest a universally applicable formula, given the many different statutory and other liabilities and obligations which could exist.
+However, I would suggest that, at least normally, in order for a company to have incurred a relevant obligation under rule 13.12(1)(b), it must have taken, or been subjected to, some step or combination of steps which (a) had some legal effect (such as putting it under some legal duty or into some legal relationship), and which (b) resulted in it being vulnerable to the specific liability in question, such that there would be a real prospect of that liability being incurred.
+If these two requirements are satisfied, it is also, I think, relevant to consider (c) whether it would be consistent with the regime under which the liability is imposed to conclude that the step or combination of steps gave rise to an obligation under rule 13.12(1)(b).
+When deciding whether a particular state of affairs or relationship is sufficient to amount to the incur[ring] of an obligation, by reason of which the liability arose, considerable assistance can, I think, be gained from the majority decision in Winter v Inland Revenue Commissioners, In re Sutherland (decd) [1963] AC 235.
+That case was concerned with whether an arrangement was within the expression contingent liabilities in section 50 of the Finance Act 1940.
+As Lord Reid explained at p 247, at the relevant date, the position of the company was that, by applying for and accepting allowances in respect of these ships, it had become bound by the statute to pay tax under a balancing charge when it ceased to use these ships in its trade, if the moneys which it received for them exceeded any expenditure on them which was still unallowed.
+contingent liability as at the relevant date.
+Lord Reid said this at p 248: [I]f an Act says I must pay tax if I trade and make a profit, I am not before I begin trading under a contingent liability to pay tax in the event of my starting trading.
+In neither case have I committed myself to anything.
+But if I agree by contract to accept allowances on the footing that I will pay a sum if I later sell something above a certain price I have committed myself and I come under a contingent liability to pay in that event.
+In those circumstances, the majority concluded that the obligation was a
+Reference to a passage in Lord Hodsons dissenting speech highlights the effect of this reasoning.
+At p 257, he said that he thought that the risk of attracting liability is not enough and the argument involves a misconception of what is meant by contingent liabilities in their context, and went on to point out that [t]here may be no day of reckoning; the ships may never be sold; if there is a sale there may be a balancing allowance not a balancing charge.
+This contrast is also highlighted by what Lord Guest (who agreed with Lord Reid) said at p 264: The claim for initial allowances for what has been described as depreciation is the voluntary choice of the taxpayer, but, once he has obtained such allowances, he is automatically involved by the operation of law in the payment of balancing charges, if the assets are parted with at a price greater than the written down value in the
+circumstances defined in section 292 of the Income Tax Act, 1952
+It is true that in Sutherland, the House of Lords was concerned with the meaning of contingent liabilities in the context of estate duty, whereas these appeals are concerned with the meaning of obligation from which a contingent liability derives in insolvency legislation.
+It was suggested that the reasoning of Lord Reid should not, therefore, be relied on here.
+I do not agree.
+Lord Reid gave a characteristically illuminating and authoritative analysis of an issue of principle.
+It appears to me that the issue of (i) what is a contingent liability and (ii) what is an obligation by reason of which a contingent liability arises, are closely related.
+In Sutherland the House had to decide whether what a company had done was sufficient, in Lord Reids words, to have committed [it]self to a contingent liability.
+As I see it, that is much the same thing as having incurred an obligation from which a contingent liability may arise, for the purposes of rule 13.12(1)(b).
+I note that the approach to contingent liabilities adopted in Sutherland was considered helpful in two cases concerned with insolvency law decided by judges experienced in the field Pennycuick J In re SBA Properties Ltd [1967] 1 WLR 799, 802D 803E, and David Richards J in In re T & N Ltd, [2006] 1 WLR 1728, paras 48 61.
+In the latter case, the judge pointed out at para 61 that the case before him was, as these cases are, in one important respect a stronger case than Sutherland, because the majority did not regard as decisive that the liability to pay the balancing charges would arise only as a result of the company's own choice to sell the ships.
+In this case there is no question of volition.
+The reasoning of Lord Reid, and of Lord Guest, in Sutherland self evidently supports the argument that the potential FSD regime liabilities in the present cases fall within rule 13.12(1)(b), even where the FSD is not issued until after the relevant insolvency event.
+More specifically, if one asks whether those potential liabilities of the Target companies in these two appeals satisfy the requirements suggested in para 77 above, it appears to me that the answer is yes.
+As to the first requirement, on the date they went into administration, each of the Target companies had become a member of a group of companies, and had been such a member for the whole of the preceding two years the crucial look back period under the 2004 Act.
+Membership of a group of companies is undoubtedly a significant relationship in terms of law: it carries with it many legal rights and obligations in revenue, company and common law.
+As to the second requirement, by the date they went into administration, the group concerned included either a service company with a pension scheme, or an insufficiently resourced company with a pension scheme, and that had been the position for more than two years.
+Accordingly, the Target companies were precisely the type of entities who were intended to be rendered liable under the FSD regime.
+Given that the group in each case was in very serious financial difficulties at the time the Target companies went into administration, this point is particularly telling.
+In other words, the Target companies were not in the sunlight, free of the FSD regime, but were well inside the penumbra of the regime, even though they were not in the full shadow of the receipt of a FSD, let alone in the darkness of the receipt of a CN.
+So far as the third requirement is concerned, I would simply refer back to the points made in paras 58 63 above.
+The earlier authorities
+I should refer to the authorities which the Court of Appeal and Briggs J
+understandably held bound them to reach a contrary conclusion.
+Those authorities were mostly concerned with individual bankruptcy rather than corporate insolvency.
+However, the meaning of the expression debt in the two regimes is very similar: rule 12.3 applies to both, and section 382 of the 1986 Act has a very similar definition of provable debt for bankruptcies as rule 13.12 has for liquidations.
+In a number of cases, it has been held that, where an order for costs was made against a person after an insolvency process had been instituted against him, his liability for costs did not arise from an obligation which had arisen before issue of the bankruptcy proceedings, even though the costs order was made in proceedings which had been started before that insolvency process had begun see for instance In re Bluck, Ex p Bluck (1887) 57 LT 419, In re British Gold Fields of West Africa [1899] 2 Ch 7, In re A Debtor (No 68 of 1911) [1911] 2 KB 652, and In re Pitchford [1924] 2 Ch 260.
+In my view, by becoming a party to legal proceedings in this jurisdiction, a person is brought within a system governed by rules of court, which carry with them the potential for being rendered legally liable for costs, subject of course to the discretion of the court.
+An order for costs made against a company in liquidation, made in proceedings begun before it went into liquidation, is therefore provable as a contingent liability under rule 13.12(1)(b), as the liability for those costs will have arisen by reason of the obligation which the company incurred when it became party to the proceedings.
+I have little concern about overruling those earlier decisions, although they are long standing.
+First, the judgments are very short of any reasoning, and consist of little but assertion.
+Secondly, they were decided at a time when the legislature and the courts were less anxious than currently for an insolvency to clear all the liabilities of a bankrupt (as they were all concerned with individual insolvencies).
+Although most of the provisions of rule 13.12 and section 382 can be found in section 30(3), (4) and (8) of the Bankruptcy Act 1914, over the past three hundred years, the legislature has progressively widened the definition of provable debts and narrowed the class of non provable liabilities to quote from the written case of Mr Phillips QC who relied on those cases.
+Thirdly, those cases are impossible to reconcile logically with the earlier case of In re Smith, Ex p Edwards (1886) 3 Morrell 179, where, on identical facts (save that it was an arbitration rather than litigation) it was held that an order for costs did give rise to a provable debt.
+Fourthly, the unsatisfactory nature of those decisions can be seen from the way in which the Court of Appeal sought to evade their consequence in Day v Haine [2008] ICR 1102, a case which I consider to have been rightly decided.
+For the same reasons, I consider that the decisions of the Court of Appeal in Glenister v Rowe [2000] Ch 76 and Steele [2006] 1 WLR 2380 were wrongly decided, although I can see how it might be said that they were justified on the basis of stare decisis.
+The reasoning of Arden LJ in the latter case at paras 21 23 is instructive, because, as she says, the previous authorities in relation to provable debts suggested a narrower meaning of contingent liability than was adopted by the majority in Sutherland.
+That observation neatly illustrates why they were wrongly decided.
+The Report of the Review Committee on Insolvency Law and Practice (the Cork Report, 1982, Cmnd 8558), para 1289, described it as a basic principle of the law of insolvency that every debt or liability capable of being expressed in money terms should be eligible for proof so that the insolvency administration should deal comprehensively with, and in one way or another discharge, all such debts and liabilities.
+The notion that all possible liabilities within reason should be provable helps achieve equal justice to all creditors and potential creditors in any insolvency, and, in bankruptcy proceedings, helps ensure that the former bankrupt can in due course start afresh.
+Indeed, that seems to have been the approach of the courts in the 19th century before the somewhat aberrant decisions referred to in para 88 above.
+Thus, in Ex p Llynvi Coal and Iron Co; In re Hide (1871) LR 7 Ch App 28, 32, James LJ described one of the main aims of the bankruptcy regime as to enable the bankrupt to be a freed man freed not only from debts, but from contracts, liabilities, engagements and contingencies of every kind.
+If that was true in 1871, it is all the more true following the passing of the 1986 and 2002 Acts, and as illustrated by the amendment to rule 13.12(2) effected following the decision in In re T & N Ltd [2006] 1 WLR 1728, so as to extend the rights of potential tort claimants to prove.
+It was suggested that para (m) was included in rule 4.218(3) on the assumption that cases such as those mentioned in para 88 above were rightly decided.
+That may be so.
+But, even if it is, the fact that a rule has been drafted on the basis that a decision of the Court of Appeal was right does not mean that this court should uphold the decision if satisfied that it was wrong.
+Conclusion on the provable debt issue
+I would accordingly dismiss these appeals to the extent of holding that the
+administrators are bound to meet the liabilities of the Target companies under the FSD regime, but allow the appeals to the extent of holding that these liabilities are to be treated as provable debts.
+I have had the opportunity of reading in draft the judgment of Lord Sumption on this issue and I agree with it.
+His reference to Carron Iron Co Proprietors v Maclaren (1855) HL Cas 416 and In re Oriental Inland Steam Co (1873 4) LR 9 Ch App 557 appears to me to be very much in point.
+I have also found assistance in the careful judgment of Lord Drummond Young in the Outer House in In re Thomas v Burton, liquidator of Ben Line Steamers Ltd [2010] CSOH 174; 2011 SLT 535.
+Is the liability under a FSD issued after an insolvency event a liquidation expense?
+Given that the potential FSD liability in each of these cases is a debt falling within rule 13.12(1)(b), and therefore a provable debt within rule 12.3, and the acceptance on all sides that it would not therefore be an expense, it is strictly unnecessary to consider this question.
+However, it should be addressed as it was fully debated, and the point is of some potential importance, as I do not entirely agree with the courts below as to the effect of the reasoning and decision of the House of Lords in In re Toshoku Finance UK plc [2002] 1 WLR 671.
+The question which would arise if the potential liability under the FSD regime did not give rise to a provable debt under rule 13.12 where the FSD is issued after the relevant insolvency event, is whether the liability would be within the expression charges and other expenses incurred in the course of the administration within rule 12.2, and, more particularly, within the expression any necessary disbursements by the administrator in the course of the administration, within rule 2.67(1)(f) the equivalent provision in a liquidation being rule 4.218(3)(m).
+The word necessary in rule 2.67(1)(f) carries with it a legal obligation to pay (or, possibly, in exceptional cases, a moral obligation to pay, as to which see the next section of this judgment).
+However, that is somewhat circular, as it leaves open the very question which has to be decided, namely whether the liability in question which has been imposed on the company is one which the administrator must pay.
+Further, a liability may arise during an administration without falling within rule 2.67(1)(f), without being in the course of the administration.
+In Davidson v Robb [1918] AC 304, 321, Lord Dunedin explained that in the course of his employment had a more limited meaning than during the period of his employment and connoted something which is part of his service namely work or the natural incidents connected with the class of work, a view echoed by Lord Russell in Alderman v Great Western Railway Co [1937] AC 454, 459.
+While it would be dangerous to treat any formulation as an absolute rule, it seems to me, at any rate subject to closer examination of the authorities and counter arguments, a disbursement falls within rule 2.67(1)(f) if it arises out of something done in the administration (normally by the administrator or on the administrators behalf), or if it is imposed by a statute whose terms render it clear that the liability to make the disbursement falls on an administrator as part of the administration either because of the nature of the liability or because of the terms of the statute.
+Thus, if an administrator, on behalf of the company, enters into a transaction which gives rise to tax, or starts (or adopts) proceedings which give rise to a liability for costs, that tax or those costs would fall within the rule, as they arise from his actions as administrator during the administration.
+This conclusion is consistent with the authorities on liquidations see eg In re Beni Felkai Mining Co Ltd [1934] 1 Ch 406, In re Mesco Properties Ltd [1979] 1 WLR 558, affirmed [1980] 1 WLR 96 (tax), In re Trent & Humber Shipbuilding Co; Bailey & Leethams Case (1869) LR 8 Eq 94 and In re Wenborn & Co [1905] 1 Ch 413 (costs).
+An area in which liquidators have been held liable to meet a statutorily imposed liability is that of property taxes ie business and domestic rates and community charge see, for instance, In re International Marine Hydropathic Co (1884) 28 Ch D 470, In re National Arms & Ammunition Co (1885) 28 Ch D 474, In re Blazer Fire Lighter Ltd [1895] 1 Ch 402, and more recently Exeter City Council v Bairstow [2007] Bus LR 813.
+The explanations in the judgments in those cases of the basis on which a liquidator has been held liable for rates and (in Kentish Homes) for community charge as an expense of the liquidation, are not entirely consistent.
+Sometimes it was said to be because the liquidator is retaining the property in question for the benefit of the winding up see eg per Baggallay LJ in Marine Hydropathic at 471 and Fry LJ in National Arms at 481.
+However, it was also said that the rates should count as an expense on the ground that, because the liquidator remained in rateable occupation of the property in question, the rates for the period should rank as an expense of the liquidation see eg per Bowen LJ in National Arms at 480 and 482, and Vaughan Williams J in Blazer at 406 7.
+The latter rationale seems to me to represent the current state of the law see per Lord Hoffmann in Toshoku at para 34 and per David Richards J in Exeter at paras 15 19.
+In my view, therefore, the fact that the liability for rates falling due after an insolvency event on property retained by the liquidator ranks as an expense of the liquidation, is based on the proposition that, as a matter of interpretation, the rating (and community charge) legislation imposes such a liability on the liquidator (and the same logic must apply in an administration).
+This is consistent with the fact that liability for rates (and community charge), arises from day to day, and the liability is treated as an expense only in respect of the companys occupation of property during the liquidation.
+This conclusion derives a degree of support from the fact that, in the context of a liquidation, it is always open to a liquidator to disclaim onerous property (under sections 178 182 of the 1986 Act) and, if he chooses not to do so, it would presumably be as a result of a conscious decision to retain the property for the benefit of the creditors.
+An administrator cannot disclaim property, but there is force in the point that the rating authorities should not be worse off because a company opts for administration rather than liquidation, given that the normal reason for preferring administration to liquidation is to seek a better outcome for creditors and/or shareholders of the company see para 3(1) of Schedule B1 to the 1986 Act.
+Adopting the approach I have suggested, it appears to me that a potential liability under a FSD or a liability under a CN does not fall within the scope of expenses of an administration within rule 12.2 or rule 2.67(1)(f).
+First, there is no question of such a liability resulting from any act or decision taken by or on behalf of the administrator or any act or decision taken during the administration.
+The liability self evidently arises out of events which occurred before the insolvency event.
+Secondly, I do not consider that the terms of the 2004 Act, properly interpreted, mean that a liability under a CN would be an expense of the administration, if it was not a provable debt under rule 13.12.
+It is true that the effect of a CN under section 49(3) of the 2004 Act is that it gives rise to a debt payable by the target once it is issued, but it does not seem to me that that can be sufficient to render the payment of the debt a necessary disbursement by the administrator in the course of the administration.
+The mere fact that an event occurs during the administration of a company which a statute provides gives rise to a debt on the part of the company cannot, of itself, be enough to render payment of the debt an expense of the administration.
+It would be a debt payable during the period of the administration, but it would not be part of the administration, or a payment which was one of the natural incidents connected with the administration, to use the language of Lord Dunedin in Davidson.
+In my view, something more would be required, either from the wording of the 2004 Act or from the nature of the liabilities which it imposes, before a CN issued after the targets insolvency event could be held to be an expense of the administration or liquidation.
+The 2004 Act and the FSD Regulations are silent on the issue of the status of the liability under the FSD regime where the target has suffered or suffers an insolvency event.
+It is therefore necessary to consider whether there is any indication that can be gathered from the 2004 Act, its aims and procedures, that it was intended that such a liability should rank as an expense of the targets administration or liquidation, if it does not give rise to a provable debt.
+For the reasons given in paras 59 62 above, it would be remarkable if a liability under a CN issued to a target pursuant to a FSD issued after the target suffered an insolvency event had priority over the targets other unsecured creditors, when a CN, based on precisely the same facts, would not have such priority if it was issued pursuant to a FSD issued notice issued before the insolvency event.
+I accept that it would be curious if a FSD issued after an insolvency event was significantly less effective than one issued before that event, and indeed that it would be unlikely to result in any sum being paid as explained in para 63 above.
+However, the notion that liability pursuant to a FSD issued after the target had suffered an insolvency event ranks behind the targets provable debts, is, to my mind, less surprising than the notion that it should rank ahead of them.
+First, I consider that the balance of anomalies, as discussed in paras 59 63 above, is such that the former appears a much less unlikely outcome.
+Secondly, as a general proposition, once the facts giving rise to a right to raise a claim (in these cases, by issuing a FSD) exist, it would be very unusual for the beneficiary of the right to be better off as a result of a delay in raising the claim, but it would be far from surprising if the beneficiary were worse off as a result of such a delay.
+The reason that the courts below reached a different conclusion is best explained by quoting a passage, from the first instance judgment, which the Court of Appeal (in paras 99 101 of Lloyd LJs judgment) expressly approved.
+At [2011] Bus LR 766, para 146, Briggs J said that Lord Hoffmanns speech in Toshoku established as a general rule that: [W]here by statute Parliament imposes a financial liability which is not a provable debt on a company in an insolvency process then, unless it constitutes an expense under any other sub paragraph in the twin expenses regimes for liquidation and administration, it will constitute a necessary disbursement of the liquidator or administrator.
+That is the general rule, whether the statute expressly refers to companies in an insolvency process as being subject to the liability, or whether the statute achieves the same result by using a criterion for liability which is insolvency neutral.
+Any other conclusion would in my judgment attribute an excessive weight to the linguistic method by which different legislation achieved the same result, namely that the statutory obligation in question is a liability of a company in an insolvency process.
+While it is fair to say that some observations of Lord Hoffmann in Toshoku, if read on their own, may appear to support that general rule, I consider that Briggs Js summary amounts to an incorrect statement of the law.
+In my view, the general guidance given by Lord Hoffmann in Toshoku is to be found in para 46, where he said that the question of whether [any particular] liabilities should be imposed upon companies in liquidation is a legislative decision which will depend upon the particular liability in question.
+In a case, such as the present, where (i) the statutory liability is one which could have been imposed before or after liquidation, (ii) the liability does not give rise to a provable debt (as is being assumed for present purposes) and (iii) the statute is completely silent as to how the liability should be treated if it is imposed after an insolvency event, the liability can only be an expense of the liquidation or administration if the nature of the liability is such that it must reasonably have been intended by the legislature that it should rank ahead of provable debts.
+It would be wrong to suggest that this is a test which may not need to be refined in future cases, but it appears to me to be supported by the facts and arguments raised on these appeals.
+I do not consider that Toshoku takes matters any further in the present case.
+Lord Hoffmann explained in para 2 that the liability in Toshoku arose from a statutory provision which stated that: a company is chargeable to corporation tax on profits arising in the winding up of the company.
+It may be assessed in respect of an accounting period deemed to commence on the liquidation date , and the liquidator is the proper officer liable to pay the tax . [Other relevant statutory requirements were that] profits must be computed on an accruals basis [and] the computation must be made on the assumption that every amount payable under the relationship will be paid in full as it becomes due.
+In other words, unlike the present cases, Toshoku concerned a tax liability which was imposed on a liquidator, as opposed to the company, and it was a tax which only applied (in specified circumstances) to a company which had gone into liquidation.
+As Lord Hoffmann said at para 30, [t]here would be little point in a statute which specifically imposed liabilities upon a company in liquidation if they were payable only in the rare case in which it emerged with all other creditors having been paid.
+Even in such a case, I consider that it would be appropriate for a court to consider whether the legislature intended the liabilities concerned to rank as an expense, but the point made by Lord Hoffmann would clearly be a very powerful factor as to why it should.
+I therefore would conclude that, if the liability in these cases did not rank as a provable debt, it would not count as an expense of the administration.
+Does the court have a residual discretion?
+If I had taken a different view on the provable debt issue, an alternative argument to that just discussed was that the court has the power to direct the administrator of a Target company to accord to the potential liability under the FSD regime a higher ranking than it would be given under the 1986 Act and the Insolvency Rules.
+In other words, that the court could order the administrator to treat the potential FSD liability as a provable debt (category 5 in para 39 above) even though the effect of the legislation is that it should rank lower (namely category 7).
+At any rate at first sight, it would be extraordinary if a court, which had decided that a liability did not fall within the definition of provable debts in rule 13.12, could nonetheless go on to decide that it was to be so treated, in the absence of any specific statutory power to do so.
+Such a course would appear to be wrong in principle, because it would involve a judge effectively overruling the lawful provisions of a statute or statutory instrument.
+It would also be highly problematic in practice because it would throw many liquidations and administrations into confusion: the law would be uncertain, and many creditors who felt that the statutory ranking caused them unfair prejudice would make applications to the court.
+If further reasons were required for this conclusion, they may be found in rule 2.67 and in Toshoku.
+Rule 2.67(2) and (3), referred to in para 42 above, show that, where the Insolvency Rules wish to give the court the ability to change the priority rules, they say so.
+In the course of his speech in Toshoku at para 38, Lord Hoffmann referred to the proposition whether debts should count as expenses of the liquidation is a matter for the discretion of the court and held that there was no such discretion and disapproved Sir Donald Nicholls V Cs comments in In re Kentish Homes Ltd [1993] BCLC 1375.
+As Lord Hoffmann made clear in para 41, how a particular liability was to be ranked depended solely on the proper interpretation of the Insolvency Rules.
+The justification for a contrary view was based on three paragraphs of Schedule B1 to the 1986 Act (Schedule B1), and a number of decisions where the court has ordered a liquidator to take a particular action.
+Para 13 of Schedule 1 entitles an administrator to make any payment which is necessary or incidental to the performance of his functions.
+I do not see how that can entitle him, let alone the court to direct him, to treat an unprovable debt as a provable debt (unless, conceivably, there was resulting benefit which would redound for the benefit of the proving creditors, although even then it would be problematic).
+It can scarcely be said to be incidental or necessary to a persons statutorily prescribed functions to do something inconsistent with those functions.
+Para 65(3) of Schedule B1 precludes an administrator from paying a creditor who is neither secured nor preferential without the sanction of the court.
+I cannot see how this provision can be properly interpreted as giving the court a roving commission to change the statutory priorities in a particular case simply because it does not like the consequences of those priorities.
+It was no doubt intended to apply where the payment in question is necessary or desirable to achieve one of the administrators statutory functions under paragraph 3 of Schedule B1 to the 1986 Act (eg the companys survival or a more advantageous realisation of the companys assets).
+Para 74 of Schedule B1 entitles a creditor to apply to the court if it considers that the administrator proposes to act in a way which would unfairly prejudice it.
+This cannot, in my view, apply to a case where the administrator is proposing to do that which the legislation requires him to do.
+It applies where the administrator is exercising a power, or discretion, most obviously carrying on the companys business in a certain way or selling off an asset of the company, or not performing an obligation, such as paying off creditors in the order mandated by the legislation.
+Again, it cannot have sensibly been intended to give the court a roving commission to vary the clear statutory ranking of liabilities as summarised in para 39 above.
+As to the common law, there are a number of cases, starting with In re Condon Ex p James (1874) LR 9 Ch App 609, in which a principle has been developed and applied to the effect that where it would be unfair for a trustee in bankruptcy to take full advantage of his legal rights as such, the court will order him not to do so, to quote Walton J in In re Clark (a bankrupt) [1975] 1 WLR 559, 563.
+The same point was made by Slade LJ in In re TH Knitwear (Wholesale) Ltd [1988] Ch 275, 287, quoting Slater J in In re Wigzall, Ex p Hart [1921] 2 KB 835, at 845: where a bankrupts estate is being administered under the supervision of a court, that court has a discretionary jurisdiction to disregard legal right, which should be exercised wherever the enforcement of legal right would be contrary to natural justice.
+The principle obviously applies to administrators and liquidators see In re Lune Metal Products Ltd [2007] 2 Bus LR 589, para 34.
+However, none of these cases begins to justify the contention that an administrator can be ordered to change the ranking of a particular debt simply because the statutory ranking appears unattractive in this case because it means that a particular debt is ranked lower than other unsecured debts because (as I am assuming) it is not provable according to the statutory formula.
+Indeed, observations in Lune Metal, paras 35 38, tend to support the notion that the court cannot sanction a course which would be outside an administrators statutory powers.
+It is right to mention that the court has sanctioned an otherwise unauthorised payment where a company in administration wishes to avoid the cost of going into compulsory liquidation.
+In such cases, which include In re UCT (UK) Ltd [2001] 1 WLR 436 and Lune Metal, the terms on which the administrators are discharged includes a direction which ensures that the preferential creditors are in no worse a position than if there had been a compulsory liquidation.
+However, those cases provide no assistance to the argument that the court can direct a FSD regime liability to be promoted ahead of its statutory ranking, as (i) the direction benefits the creditors with provable debts, (ii) the direction is tied to the discharge of the administrators, not the performance of their on going functions, and (iii) the direction does not involve any conflict with statutory ranking of claims, and in particular, it does not harm the interests of the creditors with provable debts: on the contrary, they benefit from the direction.
+In the present cases, I understand the attraction of the argument that the court should order the administrators of the Target companies to treat the potential FSD liabilities as provable debts (if they are not so provable): otherwise, they may be valueless.
+However, I come back to the point that, if the effect of the Insolvency Rules is that the liabilities are not provable debts, there is no basis for the court deciding that they are.
+It would be wrong for the courts to override the statutory ranking, especially given it would cause significant prejudice to others (in this case the creditors with provable debts).
+That is particularly true as the liabilities are statutory, so that the legislature could have dealt with their status in a liquidation or administration (as indeed it did in relation to a section 75 debt).
+The argument to the contrary also relied on the fact that the liability of a target under the FSD regime would have been a provable debt if the FSD had been issued before the insolvency event.
+That is undoubtedly an argument in favour of the liability where the FSD is issued after an insolvency event being a provable debt, as mentioned above.
+However, if the liability is not a provable debt in such circumstances, the argument does not support the contention that the administrator can be required to treat it as if it were.
+As already mentioned, the mere fact that the court does not think it fair that a particular statutory liability should not rank as a provable liability under the relevant statutory provisions is not enough to justify a decision to alter the effect of those provisions.
+The point can be taken a little further.
+The decision of the courts below, that the liability in these cases was an expense of the administration and not a provable debt, was unattractive for the reasons given in paras 59 62 above.
+It seems to me that, if, as is suggested by the argument I am considering, the courts had had power to do so, they should have gone on to hold that it would nonetheless direct the administrators to treat the liability as a provable debt.
+Such a direction would not merely have been a surprising one, but it would have been one which flew in the face of Lord Hoffmanns observations at paras 38 41 in Toshoku, disapproving In re Kentish Homes Ltd [1993] BCLC 1375.
+Conclusion
+I would accordingly allow these appeals to the extent of declaring that a Target companys liability under the FSD regime, arising pursuant to a FSD issued after the company has gone into administration, ranks as a provable debt of the company, and does not rank as an expense of the administration.
+LORD SUMPTION (with whom Lord Mance and Lord Clarke agree)
+I agree with the order proposed by Lord Neuberger and with his reasons.
+I add a few observations of my own on a point which might be regarded as a matter of wholly abstract jurisprudence if it were not fundamental to the analysis of the effect of this particular scheme.
+The critical question is what constitutes an obligation incurred for the purpose of rule 13.12(1)(b) of the Insolvency Rules 1986.
+The context shows it means a legal rule applying before the date when the company goes into liquidation which may, contingently on some future event, give rise to a debt or liability arising after that date.
+But it cannot extend to every legal rule which may on any contingency have that effect.
+Otherwise every debt or liability would be provable irrespective of the date when it accrued, unless the law changed after the company went into liquidation.
+Since the scheme depends on there being a common date as at which the fund falls to be valued and distributed pari passu, that cannot be right.
+Some limitation must be read into sub paragraph (b).
+But what limitation?
+The paradigm case of an obligation within the sub paragraph is a contract which was already in existence before the company went into liquidation.
+It is implicit in the argument of those who contend on this appeal that there is no provable debt, in this case that contract is not just the paradigm case but the only one.
+Yet when one asks what it is about a contract that qualifies it as a relevant source of obligation, the answer must be that where a subsisting contract gives rise to a contingent debt or liability, a legal relationship between the company and the creditor exists from the moment that the contract is made and before the contingency occurs.
+The judgment of Lord Reid in In re Sutherland (decd) [1963] AC 235 was concerned with a very different statutory scheme, but his analysis is nevertheless illuminating because it makes precisely this point at pp 247 8: It is said that where there is a contract there is an existing obligation even if you must await events to see if anything ever becomes payable, but that there is no comparable obligation in a case like the present.
+But there appears to me to be a close similarity.
+To take the first stage, if I see a watch in a shop window and think of buying it, I am not under a contingent liability to pay the price: similarly, if an Act says I must pay tax if I trade and make a profit I am not before I begin trading under a contingent liability to pay tax in the event of my starting trading.
+In neither case have I committed myself to anything.
+But if I agree by contract to accept allowances on the footing that I will pay a sum if I later sell something above a certain price I have committed myself and I come under a contingent liability to pay in that event.
+Contract is not the only legal basis on which a contingent obligation of this kind may arise.
+A statute may also give rise to one.
+A good example is the substantive obligation which English law has always held to be owed by a debtor under a foreign judgment.
+It is the basis of the common law action to enforce it.
+Another is the obligation of a creditor arising from the statutory scheme of distribution in an English insolvency, not to seek by litigation in a foreign court a priority inconsistent with that scheme: see Carron Iron Co Proprietors v Maclaren (1855) HL Cas 416, 440 per Lord Cranworth LC, In re Oriental Inland Team Co (1873 4) LR 9 Ch App 557, and in the United States Cole v Cunningham (1882) 133 US 107.
+In both of these examples, a legal relationship is created between the debtor and other persons, albeit without contract.
+In the first, it is the legal relationship with the judgment creditor arising from the fact that the judgment debtor was subject to the jurisdiction of the foreign court, whether by virtue of residence or submission.
+In the second, it is the legal relationship of the creditor with the debtor company and with other creditors arising from the statutory scheme of distribution.
+If the mandatory provisions of a statute may create a legal relationship between the company and a creditor (or potential creditor) giving rise to a provable debt, then there is no reason why it should not do so contingently upon some future event.
+In In re Sutherland decd [1963] AC 235 the companys liability for balancing charges by way of recoupment of capital allowances, which the majority held should be taken into account when valuing its assets, did not exist at the valuation date because at that date it was still contingent upon a future sale of those assets.
+It was nevertheless a relevant contingent liability for valuation purposes, because at the valuation date there was a legal relationship between the companies and the Crown arising from the statutory scheme which made capital allowances subject to balancing charges in the contingency of a sale.
+In Secretary of State for Trade and Industry v Frid [2004] 2 AC 506 the Secretary of State was subrogated by statute to the claims of employees to compensatory notice pay and redundancy payments.
+The liability of the company to meet those claims did not arise until the employees were dismissed, which was after the company went into liquidation.
+But the obligation existed before, because the statutory scheme superimposed upon the contract of employment created the legal relationship which made the compensatory notice pay and the redundancy payments due.
+Lord Hoffmann, with whom the rest of the committee agreed, said at paras 17, 19: if the Secretary of State had agreed by contract before the insolvency date to guarantee any future liability of the company to pay compensatory notice pay or make redundancy payments to employees under the 1996 Act, the contract of guarantee would have created a contingent liability on the part of the company to reimburse the Secretary of State which was a debt at the insolvency date and became capable of set off when the employees were afterwards paid.
+The next question is whether it makes a difference that the contingent liability existed by virtue of a statute rather than a contract and, not being consensual, that it involved no direct contract or other relationship with the employees or the company.
+If a statutory origin does not prevent set off in the case of debts due and payable at the insolvency date, I do not see why it should make any difference that the statute creates a contingent liability which exists before the insolvency date but falls due for payment and is paid afterwards.
+In the Victoria case of Lofthouse v Commissioner of Taxation [2001] 164 FLR 106, the statute conferred upon the Commissioner an indemnity against the directors of a company if tax payments under the Australian equivalent of PAYE were subsequently held repayable as insolvent transactions (in effect, preferences).
+The indemnity was contingent upon the tax being determined to be repayable after the employer had gone into liquidation, but the statutory scheme created the relevant legal relationship between the directors and the Commissioner as soon as the tax payments were made by the company.
+They were therefore provable as contingent debts in the insolvency of the directors.
+Warren J observed at p 118: The potential liability of the third parties in this proceeding is a contingent liability within the meaning of s 82(1) of the Act because the potential liability arose from an obligation pursuant to an indemnity.
+Furthermore, all the objective circumstances giving rise to the potential for the invocation of the chose in action represented by the right to indemnity had transpired prior to the third parties entering into their composition under Pt X of the Bankruptcy Act.
+given after the commencement of the insolvency was not provable as a contingent debt, even if the litigation was in progress when the company went into liquidation.
+The case law begins with In re Bluck Ex p Bluck (1887) 57 LT 419, and continues with In re British Gold Fields of West Africa [1899] 2 Ch 7, In re A Debtor (No 68 of 1911) [1911] 2 KB 652, In re Pitchford [1924] 2 Ch 260, Glenister v Rowe [2000] Ch 76.
+The reasoning of these cases has recently been applied to other claims said to represent contingent liabilities: see R (Steele) v Birmingham City Council [2006] 1 WLR 2380.
+There are a number of problems about these cases.
+One of them, as it seems to me, is the absence of any real attempt to analyse the effect of the statutory scheme in creating an obligation to meet a liability contingently on some specified event.
+In the earlier cases, this can perhaps be regarded as the legacy of the older principle which admitted only contractual debts to proof.
+But that consideration cannot explain the more recent decisions.
+In my view they were wrongly decided.
+In the costs cases, I consider that those who engage in litigation whether as claimant or defendant, submit themselves to a statutory scheme which gives rise to a relationship between them governed by rules of court.
+They are liable under those rules to be made to pay costs contingently on the outcome and on the exercise of the courts discretion.
+An order for costs made in proceedings which were begun before the judgment debtor went into liquidation is in my view provable as a contingent liability, as indeed it has been held to be in the case of arbitration proceedings: In re Smith, Ex p Edwards (1886) 3 Morrell 179.
+In both cases, the order for costs is made against some one who is subject to a scheme of rules under which that is a contingent outcome.
+The fact that in one case the submission is contractual while in the other it is not, cannot make any difference under the modern scheme of insolvency law under which all liabilities arising from the state of affairs which obtains at the time when the company went into liquidation are in principle provable.
+Of course, an order for costs like many other contingencies to which a debt or liability may arise, depends on the exercise of a discretion and may never be made.
+But that does not make it special.
+It is not a condition of the right to prove for a debt or liability which is contingent at the date when the company went into liquidation that the contingency should be bound to occur or that its occurrence should be determined by absolute rather than discretionary factors.
+In the present case, the Court of Appeal considered itself to be bound by a line of cases in which it was held that a liability for costs arising from a judgment
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+The issue in this appeal is: what are the statutory consequences if the fingerprints of a defendant have been taken in a police station in Northern Ireland by an electronic device for which the legislation required approval from the Secretary of State, when such approval has never been given? In particular, is any evidence which makes use of the control fingerprints thus taken inadmissible in any subsequent court proceedings?
+Article 61 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (the Northern Ireland Order) sets out the powers of the police to take fingerprints without consent.
+Similar (but not in every respect identical) provision is made for England and Wales by section 61 of the Police and Criminal Evidence Act 1984.
+These powers are exhaustively defined; otherwise prints may only be taken with consent see article 61(1) and, in England and Wales, section 61(1).
+The cases where prints may be taken without consent have been varied a little from time to time and do not need to be set out seriatim here.
+One of the principal cases, however, was and is where a person is in police detention having either been arrested for a reportable offence, or charged with, or informed that he will be reported for, such.
+Another is where he has been convicted of such an offence.
+Generally, fingerprints may be taken once only in the course of any single investigation, although there are now provisions permitting replacement prints to be required if the first ones were of insufficient quality to allow satisfactory analysis, comparison or matching.
+Between 1 March 2007 and 12 January 2010 article 61(8B) of the Northern Ireland Order provided: Where a persons fingerprints are taken electronically, they must be taken only in such manner, and using such devices, as the Secretary of State has approved for the purposes of electronic fingerprinting.
+That provision matched an intended section 61(8A) of the Police and Criminal Evidence Act 1984, which latter provision was inserted into the 1984 Act by the Criminal Justice and Police Act 2001 but was never brought into force.
+Both article 61(8B) and section 61(8A) were later repealed as redundant by section 112 and schedule 8 of the Policing and Crime Act 2009, with effect from 12 January 2010, and with that repeal there disappeared from England and Wales and from Northern Ireland all requirement for statutory approval of fingerprinting devices.
+However, although the requirement for approval existed in Northern Ireland (but not in England and Wales) from 1 March 2007, such approval was, by oversight, not given to any device until it was belatedly provided on 29 March 2009 after the omission had been noticed.
+It follows that for the two years from March 2007 to March 2009 article 61(8B) was in force but no device had been approved as contemplated by it.
+The two appellants were defendants charged with theft in Northern Ireland.
+The offence was alleged to have taken place on 6 October 2007, during the two year period mentioned.
+A stack of building materials had been found removed from the owners depot and placed apparently ready for collection by the thieves.
+The appellants were found nearby in a van but said that they were there innocently and had not been near the stolen materials.
+Their fingerprints were taken when they were detained in the police station after their arrest.
+A fingerprint matching Elliotts left thumb was found on the packaging of the stolen materials.
+The match of fingerprints was relied upon by the Crown and proved in the magistrates court.
+The defendants were convicted.
+The device used in the police station to collect the control sample of the fingerprints of each appellant was a combination of camera, scanner and computer, known as Livescan.
+No one noticed that no type approval had been given for its use as required by article 61(8B).
+When this was appreciated, the appellants appealed to the County Court, where the appeal proceeded by way of fresh hearing ab initio.
+The preliminary point was taken that the evidence of comparison was inadmissible because of the absence of approval.
+That argument succeeded before the County Court judge but on further appeal by the Crown, by way of case stated, the Court of Appeal ruled against it.
+The Livescan process was and is generally used by the police throughout Northern Ireland, as well as throughout England and Wales and Scotland and, indeed, worldwide.
+It has very largely superseded the traditional process of ink pad and paper.
+It is possible to have mobile devices as well as those located in police stations.
+Both are linked directly to computerised storage and searching equipment located centrally.
+Amongst the advantages is the ease of electronic transmission, storage and sorting of the prints taken.
+One aspect of that is that a set of fingerprints given at a scene or in the street can now often almost instantaneously verify or refute the identity of the person tested.
+Another is that international exchange of data is made much easier.
+Livescan devices were in general use in Northern Ireland from 2006 and throughout the two year period 2007 2009 when type approval was required by article 61(8B).
+For the appellants, the first and principal submission of Mr McMahon QC is
+that the language of article 61(8B) unequivocally renders a nullity any fingerprints taken by a device which has not been approved.
+Therefore, no legal use can be made of them.
+For this reason, there is, he submits, no occasion to investigate what consequences Parliament must have intended should follow from a failure to use an approved device.
+That would be necessary only if there were an ambiguity in the wording.
+There is none, and it necessarily follows that the product of an unapproved fingerprinting process is inadmissible.
+Any other conclusion would, he submits, leave article 61(8B) a dead letter.
+The difficulty with this attractively simple submission is that the statute says nothing at all about the consequences of failure to use an approved device.
+There is ample precedent for such a statutory provision to be accompanied by an express provision that evidence shall only be admissible if obtained in accordance with it.
+An example is afforded by the statutory rules relating to evidence of speed provided by speed guns.
+Section 20 of the Road Traffic Offenders Act 1988 provides, for England and Wales: (1) Evidenceof a fact relevant to proceedings for an offence to which this section applies may be given by the production of a record produced by a prescribed device, and (a) (b) (4) A record produced or measurement made by a prescribed device shall not be admissible as evidence of a fact relevant to proceedings for an offence to which this section applies unless the device is of a type approved by the Secretary (a) of State, and (b) any conditions subject to which the approval was given are satisfied.
+Identical provisions are contained in the equivalent Northern Ireland legislation: article 23(1) and (4) of the Road Traffic Offenders (Northern Ireland) Order 1996.
+There are provisions to similar effect in section 6 of the Noise Act 1996, and in section 45 of the Antisocial Behaviour etc (Scotland) Act 2004, in respect of noise meters.
+The absence of this kind of explicit statutory provision from article 61(8B) thus raises the question of what consequence was intended to follow from non approval.
+This legislation was enacted against the background of the well understood
+general common law rule that evidence which has been unlawfully obtained does not automatically thereby become inadmissible.
+That has been clear since at least the decision of the Judicial Committee of the Privy Council in Kuruma v The Queen [1955] AC 197, where the defendant was charged with unlawful possession of ammunition which had been found on him as a result of an unlawful search, carried out by a policeman of insufficient seniority to make it.
+Lord Goddard CJ said this at p 203: In their Lordships opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue.
+If it is, it is admissible and the court is not concerned with how the evidence was obtained.
+This proposition was endorsed by the House of Lords in R v Sang [1980] AC 402, which dealt more specifically with the judges discretion to exclude evidence which will have the effect of rendering the trial unfair (see now section 78 of the Police and Criminal Evidence Act 1984 and its equivalent, article 76 of the Northern Ireland Order).
+Likewise in R v Khan [1997] AC 558 evidence obtained by unauthorised surveillance and the secret recording of private conversations was admissible despite the unlawful methods by which it had been obtained.
+The position was summarised by Lord Fraser, with whom all other members of the House of Lords agreed, in Fox v Chief Constable of Gwent [1986] AC 281, 292A as follows: It is a well established rule of English law, which was recognised in R v Sang, that (apart from confessions as to which special considerations apply) any evidence which is relevant is admissible even if it has been obtained illegally.
+It is clear that this inclusive rule of relevant evidence extends equally to evidence created by an unlawful process as it does to existing material uncovered by unlawful process; the recording in Khan is an example of the former.
+This common law background to the legislation, of which Parliament must be taken to have been well aware, shows that inadmissibility of the fingerprints here under consideration cannot possibly simply follow from the existence of the requirement for device approval.
+Rather, it is necessary to examine the Parliamentary intention as to consequence.
+With great respect to Mr McMahons principal argument, it is not correct that article 61(8B) would have no purpose, or would be a dead letter, unless its consequence were that any fingerprints obtained from an unapproved device were inadmissible.
+Whether or not inadmissibility is the consequence, the article still meant that a requirement by a policeman of a suspect in custody that he provide his fingerprints on an unapproved device would be one which the suspect was entitled to refuse.
+It might not be very likely that a suspect would be acquainted with the presence or absence of approval, but his solicitor might well be.
+Such a suspect could therefore refuse to provide his fingerprints on a Livescan device and he would not thereby commit the offence of obstructing a police officer that no doubt he otherwise would.
+Similarly, if it became known that the police were regularly using an unapproved device, there would be no defence to an application for judicial review in which the unlawfulness of their actions would be declared and, if persisted in, no doubt prohibited.
+Thus the clear statutory purpose of preventing the use of a device unless it is approved by the Secretary of State would be achieved.
+There is no need for the additional consequence of inadmissibility of evidence in order to give content to the statute.
+It follows that the wording of article 61(8B) does not itself provide the solution to the issue in this appeal.
+It is necessary to examine the question what Parliament must have intended to be the consequence of non approval of Livescan.
+The correct approach to this enquiry was explained by Lord Steyn in R v Soneji [2005] UKHL 49; [2006] 1 AC 340.
+It had previously been thought that statutory provisions could be classified as either mandatory (carrying the consequence of total invalidity for breach) or directory (carrying lesser consequence).
+The over rigidity of that a priori approach had given rise to difficulty.
+At para 23 Lord Steyn said this: Having reviewed the issue in some detail I am in respectful agreement with the Australian High Court [in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355] that the rigid mandatory and directory distinction, and its many artificial refinements, have outlived their usefulness.
+Instead, as held in Attorney Generals Reference (No 3 of 1999) [2001] 2 AC 91, the emphasis ought to be on the consequences of non compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity.
+That is how I would approach what is ultimately a question of statutory construction.
+That more flexible approach does not necessarily mean that failure to comply with statutory provisions may not have far reaching consequences.
+It may sometimes yield the conclusion that the inevitable consequence is total invalidity.
+That was the outcome in R v Clarke and McDaid [2008] UKHL 8; [2008] 1 WLR 338, where the question was whether the failure to sign an indictment nullified the ensuing trial.
+The statutory provisions there in question were sections 1(1) and 2(1) of the Administration of Justice (Miscellaneous Provisions) Act 1933 which provided for a bill of indictment (which had of itself no legal standing save as a proposal of charges) to become an indictment when signed.
+It was common ground that a valid indictment was a pre condition to a valid Crown Court trial.
+It can be seen from Lord Binghams speech at para 18 that he faithfully posed the Soneji question, namely what Parliament had intended, when passing the 1933 Act, should be the consequence of lack of signature.
+Since at the time of the 1933 Act the signature was taking the place of the previously existing endorsement of the bill by a Grand Jury, the answer was inescapable, if inconvenient: the signature validated the indictment in the same way as the Grand Jurys decision previously had done.
+Accordingly the absence of signature did indeed invalidate the subsequent trial, notwithstanding the fact that modern changes in the routes by which criminal cases arrive in the court of trial had in the meantime reduced the signature, in practice, to mere formality.
+The position had to be put right by amending legislation, in the form of the Coroners and Justice Act 2009.
+Should a similar parliamentary intention be deduced from article 61(8B)? Mr McMahon relies upon the well established rule that the product of a breathaliser test is inadmissible unless the testing device is an approved one.
+The cases begin with Scott v Baker [1969] 1 QB 659, decided in the infancy of the Road Safety Act 1967, which had introduced for the first time the offence of driving with blood alcohol beyond a prescribed statutory limit.
+The power to require a suspect to provide a laboratory blood or urine sample, by which blood alcohol could be tested, was made dependent upon a complex step by step procedure.
+The first step in that procedure was the taking of a preliminary (usually roadside) breath test.
+By section 7 a breath test was defined as one carried out using a device approved by the Secretary of State.
+The court held that such approval was essential to the statutory steps leading to a validly required laboratory sample, and that approval must be proved.
+The details of the blood alcohol driving legislation have been changed from time to time since then, and breath tests of a different kind are nowadays used not simply as a screening test but to determine the blood alcohol level.
+However, it remains the statutory rule, under section 7(1) of the Road Traffic Act 1988 and, in Northern Ireland, under article 18(1) of the Road Traffic (Northern Ireland) Order 1995, that a specimen of breath may be required in the course of an investigation into the offences of driving with excess alcohol, or of driving when unfit through drink or drugs, or of causing death by careless or dangerous driving when over the limit or under the influence, and that what may be thus required is limited to: specimens of breath for analysis by means of a device of a type approved by [the appropriate person.] Mr McMahon is therefore right to say that a breath specimen may be adduced in evidence against a defendant not only when the result constitutes the very offence of driving with excess alcohol but also where it is simply some part of the evidence relied on to prove an offence with different components, such as driving when unfit through drink.
+No one doubts the rule, however, that the product of a breath test will not be admissible unless the device used is an approved one.
+The statutory requirement for approval of an electronic fingerprint reader is not, however, analogous to the approval requirements in the cases of breath test or speed gun devices.
+Both the latter are methods of measuring something which cannot subsequently be re measured.
+They capture a snapshot of a suspects activity.
+The snapshot is often itself the offence.
+It is the speed, as measured by the device, which constitutes the offence of exceeding the speed limit.
+It is the blood alcohol content, as measured by the device, which constitutes the offence of driving with excess alcohol.
+In other cases, the snapshot is simply part of the evidence, for example if the offence charged is careless driving, or driving whilst unfit through drink.
+But in both kinds of situation, the activity measured by the device cannot be reproduced to be re measured.
+It is therefore entirely comprehensible that there should be a statutory requirement that the device should be approved, and that the measurements which can be relied upon in evidence should be limited to the products of such devices.
+That is no doubt why there are the specific statutory provisions in relation to speed guns described at para 8 above, and it is clearly why the courts have held that the requirements for approval in the case of breath tests have the like effect.
+The control fingerprints taken from the appellants in the police station were not snapshots.
+The impressions which their fingers provided could be reproduced at any time afterwards, and would be the same.
+The accuracy of the Livescan readings, if disputed, could readily be checked independently by the appellants providing more samples, whether by ink and paper or by any other means, for examination by an independent expert.
+The ease with which this can at any time be done demonstrates that there was no need at all for Parliament to stipulate, or to intend, that the product of unapproved electronic fingerprint readers should be inadmissible.
+It is the fact that in the present case there was no challenge whatever to the accuracy of the control fingerprints taken from Elliott by the Livescan device; the fingerprint found at the scene matched his control prints in no less than 45 particulars and there was no sign of any reliance on expert opinion either in the magistrates court or, after the absence of approval was appreciated, in the County Court.
+But if there had been a dispute, as in other cases it is at least possible that there might be, it would have been the simplest possible matter for new control prints to be provided so that independent expert opinion could be obtained.
+There appeared at first to be some limited support for the appellants contentions in an explanatory note which accompanied the proposed insertion into the Police and Criminal Evidence Act 1984 of section 61(8A) requiring type approval of electronic fingerprint readers.
+That amendment of the 1984 Act would have been achieved through section 78(7) of the Criminal Justice and Police Act 2001, had that subsection ever been brought into force.
+The explanatory note to that subsection (number 234) read as follows: Subsection (7) provides that where fingerprints are taken electronically, the device used must have type approval from the Secretary of State.
+This is to ensure that the device will produce images of the appropriate quality and integrity to be used for evidential purposes.
+However, the other background material shown to this court demonstrates that the purpose of the proposal for type approval was not principally the protection of the individual against risk of conviction on inaccurate evidence.
+The concern was much more closely related to the needs for the technology to work properly so that investigations could proceed confidently, for compatibility between police forces, both domestic and foreign, and for uniform machinery for search and comparison.
+The then Minister of State referred to the aim of facilitating a proper evidential trail.
+The House of Lords Select Committee on Science and Technology had emphasised the need for the technology to be robust.
+It is also clear that there was thought at one time that type approval would curtail any potential for unnecessary dispute in court about the legitimacy of electronically taken control fingerprints.
+The initial recommendation of the Police Scientific Development Branch had been against any stipulation for type approval.
+The reasons for that stance included the difficulty of formulating a test standard and the frequency of developments to many of the component parts of the system.
+The successful operation of Livescan in England and Wales over a decade without any type approval, as well as the experience in Northern Ireland, clearly contributed to the subsequent decision in 2009 not to commence the amendment to the English statute, and to repeal both article 61(8B) and the uncommenced section 61(8A).
+Overall the legislative history does not suggest any basis for concluding that Parliament intended that the consequence of use of unapproved apparatus should be the exclusion of the evidence.
+Such a consequence would, it is clear, be unnecessary and inappropriate.
+It is unnecessary because a reading of control fingerprints can always be checked subsequently.
+It is inappropriate because to exclude such evidence would deprive courts of reliable and relevant material.
+Since the product can be checked, and the evidence it provides is relevant, it ought to be admissible.
+If it were not, it would not be open to the police to take further control fingerprints without the consent of the subject, because he would no longer be in detention following arrest on suspicion of the offence, nor would he have been convicted of it.
+If the control fingerprints were to be inadmissible, not only would there be a windfall benefit to those who have committed crimes, perhaps of great gravity, but also defendants would be unable to rely on the evidence of the fingerprints of others when it was necessary for them to do so in order to defend themselves.
+A defendant who wished to show that a fingerprint found in an incriminating place belonged to another person, whom he contends committed the offence rather than himself, would be unable to adduce the evidence to do so.
+Some years after the provisions which we have here to construe, the Protection of Freedoms Act was enacted in 2012.
+Part 1, Chapter 1 contains, by way of proposed amendments to the Police and Criminal Evidence Act 1984, prospective provisions relating to fingerprints and other biometric data.
+Equivalent provision for the amendment of the Northern Ireland Order is made by section 9 of and Schedule 2 to the Criminal Justice (Northern Ireland) Act 2013.
+Neither set of provisions is yet in force but there is a proposed timetable for commencement.
+If and when these provisions are commenced they will provide for the destruction of fingerprints and other data in certain defined circumstances and/or after prescribed periods.
+There is express provision in proposed new section 63T(2) of the Police and Criminal Evidence Act 1984 (and in proposed new article 63Q(2) of the Northern Ireland Order) making inadmissible (at least against the person to whom the material relates) fingerprints or other data which the police have come under a duty to destroy.
+This proposed statutory scheme is consistent with the construction of the provisions we are considering in the present case.
+Where the intention is to make material inadmissible, express provision is made saying so, in the same way as it was in the statutes considered at para 8 above.
+Moreover, the proposed new scheme for destruction of biometric data is clearly founded on a view of individual rights which was considered to justify the consequence of inadmissibility if there is a duty to destroy the material.
+Such considerations do not apply to type approval for the machinery of taking fingerprints which there is no requirement to destroy.
+For these reasons it is clear that the correct conclusion is that Parliament did not intend, by enacting article 61(8B), that the consequence of an absence of approval should be to render inadmissible any fingerprints produced electronically.
+The decision of the Court of Appeal that the evidence of Elliots control fingerprints was admissible was correct.
+It follows that this appeal must be dismissed.
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+The appellant is a limited partnership formed by Mr Alistair Erskine and his wife as a vehicle for entering into a commercial contract with the respondents.
+These proceedings were brought by the appellant on the basis that it was induced to enter into the contract by a misrepresentation which was fraudulent or in any event negligent.
+The appellant sought the reduction of the contract and damages.
+After proof the Lord Ordinary, Lord Hodge, found that Mr Erskine was the directing mind of the appellant, and that he had decided to enter into the contract in reliance upon a negligent misrepresentation contained in an email sent to him some weeks before the appellant was formed.
+The allegation of fraud was found not to have been established: [2010] CSOH 62.
+The latter point has not been pursued further.
+Nor has the present appeal concerned the question whether the remedy of reduction may be available.
+The issue with which we are concerned is whether the appellant was induced to enter into the contract by a negligent misrepresentation and, if so, is in principle entitled to recover damages.
+The Lord Ordinary focused upon the legal situation as at the time when the email in question was sent.
+He approached the case as one where A (the appellant, through Mr Erskine acting as its agent) had relied upon a representation made by B (the respondents) to C (Mr Erskine acting as an individual), and where the question was whether B had owed a duty of care to A at the time when the representation was made to C.
+Applying the principles set out in Caparo Industries plc v Dickman [1990] 2 AC 605, the Lord Ordinary held that the appellant could not recover damages because it had not been in existence at the time when the email was sent.
+Although the respondents had owed a duty of care to Mr Erskine, no such duty could in his view have been owed at that time to the appellant, since a non existent entity could not hold any right or be owed any duty.
+Both parties appealed against the Lord Ordinarys decision.
+Before the Inner House, it was conceded on behalf of the respondents that the Lord Ordinary had erred in considering that the non existence of the appellant at the time when the email was sent was necessarily an insuperable obstacle to the existence of a duty of care: it was accepted that in appropriate circumstances a duty of care could be owed to a class of persons, some of whom might not then be in existence.
+In the present case however, it was submitted, at the time when the email was sent there was no one other than Mr Erskine whose reliance upon it could reasonably have been foreseen.
+In those circumstances, there had therefore been no proximity between the appellant and the respondents.
+It followed, applying Caparo, that no duty of care had been owed by the respondents to the appellant.
+Those submissions were accepted by the Second Division: [2011] CSIH 81; 2012 SC 240.
+Their discussion of the case again proceeded on the assumption that the relevant question was whether, at the time when the email was sent to Mr Erskine, the respondents had owed a duty of care to the appellant.
+Their Lordships did not address the respondents cross appeal, which challenged the Lord Ordinarys finding that a duty of care had been owed to Mr Erskine.
+In the present appeal, the issues were identified by the parties as being, first, whether, on the assumption that the respondents owed a duty of care in negligence to Mr Erskine, such a duty of care was owed to the appellant; and secondly, whether the assumption upon which the first issue proceeded was correct.
+The case was again approached as one where A had relied upon a representation made by B to C, and where the relevant question was whether B had owed a duty of care to A.
+It was again assumed that that question had to be answered as at the time when the email was sent to Mr Erskine.
+The authorities relied upon were again Caparo and more recent English and Commonwealth authorities in which the Caparo principles were applied.
+The question focused in the printed cases, put shortly, was whether the Caparo principles could be regarded as satisfied as at the time when the email was sent, on the basis that the appellant was the alter ego of Mr Erskine, and the contract between the appellant and the respondents was the same as the contract which the respondents had had in contemplation when they made the statement to Mr Erskine.
+There is however a question as to whether the basis upon which the case has been approached by the courts below, and by the parties in their printed cases, is correct.
+Is this truly a case in which A relied upon a representation made by B to C? Was the representation made only at the time when the email was sent? Or is this a case where, as was argued before the Lord Ordinary, there was a continuing representation, which was capable of remaining in effect until a contract was concluded? If so, in the circumstances of this case, was the contract concluded between the parties on the basis of a continuing representation made by the respondents to the appellant? If so, did the respondents assume a responsibility towards the appellant for the accuracy of the representation?
+If these questions are answered affirmatively, then the case is not concerned with the circumstances in which a third party may sue in damages for economic loss suffered as a result of relying upon a representation of which it was not the addressee, but with the recovery of damages where a party to a contract was induced to enter into it by a negligent misrepresentation made to it by the other party to the contract.
+In Scots law, that involves a consideration of section 10 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (the 1985 Act) and of the authorities in which that provision has been discussed.
+The questions which I have posed in para 5, and the area of the law which I have mentioned in para 6, were not discussed by the courts below or by the parties in their printed cases, but were raised during the hearing of the present appeal.
+Counsel for the respondents accepted that there would be no unfairness in the courts considering these matters; and, in the circumstances, the parties were permitted to make additional submissions in writing.
+Before addressing these matters, it is necessary first to consider the relevant facts as found by the Lord Ordinary.
+The relevant facts
+The respondents are the owners of a grouse moor at Castle Grant, near Grantown on Spey, over which commercial shooting takes place.
+Recognising that there required to be substantial investment in the moor in order to increase the number of grouse, and being unwilling to undertake that investment themselves, they sought to attract a tenant.
+The matter was taken forward by their employee and chief executive, Mr Sandy Lewis, and by a chartered surveyor, Mr Jonathan Kennedy, who was engaged to advise them.
+In May 2006 Mr Erskine learned that a lease of the moor might be available, and entered into discussions with Mr Kennedy.
+He was sent the proposed terms of a lease.
+He did not however pursue his interest.
+The respondents then entered into discussions with another prospective tenant, Mr Paddy McNally.
+In the course of those discussions, Mr McNally expressed concern about possible over shooting of the moor during the 2006 season.
+In order to reassure Mr McNally that the respondents had considered the capacity of the moor to bear the shooting planned for that season, Mr Lewis sent his adviser an email dated 4 August 2006, in which he gave information about the grouse counts carried out on the moor earlier that year and the estimated grouse population of the moor, extrapolated from the counts.
+The areas of the moor in which the counts were carried out were not however representative of the moor as a whole, but were the parts of the moor which were considered to be the most heavily populated by grouse.
+As a result, the estimated grouse population, as stated in the email, was well in excess of the actual population.
+In the event, Mr McNally decided not to proceed with the transaction.
+On Mr McNallys withdrawal, Mr Kennedy contacted Mr Erskine in early September 2006 in order to pursue the possibility of his taking a lease of the moor.
+After taking part in a shoot and making a further visit to the moor, Mr Erskine became concerned that the shooting planned for that season would leave an inadequate breeding population on the moor.
+He expressed his concern in an email to Mr Kennedy, in which he said that he was not qualified to quantify the damage which the shooting was doing to the grouse stocks but thought that it was not insignificant.
+Mr Kennedy forwarded the email to Mr Lewis, stating in his covering message that there was no doubt in his mind that the estate had been overshot, and that this had undoubtedly had an effect on the letting of the moor and might have made it impossible.
+Mr Lewis replied by email on 29 September, stating: I have sent a separate email re the grouse programme which you may wish to pass on to Alastair Erskine.
+The separate email sent by Mr Lewis to Mr Kennedy, which I will refer to as the critical email, did not form part of the chain of messages initiated by Mr Erskines email, and did not have the appearance of responding to any concern expressed about over shooting.
+Its subject was Grouse Bags, and it began by stating: Now that we are well through with the grouse season, I thought it may be appropriate to recap on how we set this years programme for Castle Grant and where we are to date.
+The following information was provided to you at the beginning of August.
+Mr Lewis then repeated the information which had originally been sent in the email of 4 August 2006.
+The email concluded: I am very happy for you to pass this on to Alastair Erskine if you feel this would be helpful to him.
+On 2 October 2006 Mr Kennedy forwarded the critical email to Mr Erskine, as Mr Lewis had suggested.
+Mr Erskine decided to proceed with the transaction, and instructed his solicitors, Anderson Strathern, to conclude the lease in the name of a limited liability partnership.
+On 10 October Anderson Strathern informed the respondents that Mr Erskine intended to use a new limited liability partnership to take the tenancy.
+Discussions continued between Mr Erskine and Mr Lewis, who was aware of Mr Erskines intention to incorporate the appellant as a vehicle for the lease.
+The appellant was incorporated on 16 November 2006.
+The lease was signed on various dates between 8 December 2006 and 18 January 2007.
+Mr Erskine subsequently discovered that the counting areas were not representative of the moor as a whole, that the grouse population was smaller than he had believed, and that it would in consequence take longer for the population to recover to the point where shooting could take place at the level which he had intended.
+He considered that Mr Lewis had deliberately misled him in the critical email in order to induce him to take on the lease, and brought the present proceedings on that basis.
+The Lord Ordinary accepted that the critical email contained a material misrepresentation, namely an implicit representation that the counts were representative of the population of grouse on the moor.
+He found that Mr Lewis had acted honestly but negligently.
+He had had no basis for making the representation and did not check his facts before doing so.
+He had been aware of Mr Erskines concern that there had been overshooting, and of the importance to an incoming tenant of an adequate population on which to build.
+The Lord Ordinary stated (paras 104 105): The purpose of the representation was to give reassurance to Mr Kennedy and Mr Erskine that the 2006 shooting programme was justified and that it would leave a substantial surplus of birds on the moor, in order to maintain Mr Erskines interest in entering into the lease The managers of the estate had, or would be perceived to have, access to a much more detailed knowledge of the quality of their moor than any other party.
+In response to expressed concerns about the 2006 shooting programme and the availability of a sufficient end of season surplus, Mr Lewis chose to provide reassurance in his representations.
+The Lord Ordinary also accepted that the representation had induced Mr Erskine to choose to enter into the lease.
+Was the representation of a continuing nature?
+The law relating to the effect of representations upon a contract proceeds on the basis that a representation made in the course of pre contractual discussions may produce a misapprehension in the mind of the other party which continues so as to have a causative effect at the time when the contract is concluded.
+It is on that basis that a misrepresentation may lead to the setting aside of the contract as being vitiated by error or fraud.
+The capacity of a representation to have a continuing effect was noted by Lord Cranworth, when rejecting what he described as a very desperate argument that a representation could not justify the setting aside of a bond because it was made some time before the bond was executed, in Smith v Kay (1859) 7 HL Cas 750, 769: It is a continuing representation.
+The representation does not end for ever when the representation is once made; it continues on.
+The pleader who drew the bill, or the young man himself, in stating his case, would say, Before I executed the bond I had been led to believe, and I therefore continued to believe .
+A similar explanation can be found in the judgment of Lord Wright MR in With v OFlanagan [1936] Ch 575, which was another action for the rescission of a contract.
+Under reference both to English authorities concerned with the law of contract, and to a Scottish authority concerned with the law of reparation (the case of Brownlie v Miller (1880) 7 R (HL) 66; Brownlie v Campbell (1880) 5 App Cas 925, which I shall discuss shortly), his Lordship observed at p 584 that a representation made as a matter of inducement to enter into a contract is to be treated as a continuing representation, and added at pp 584 585: This question only occurs when there is an interval of time between the time when the representation is made and when it is acted upon by the party to whom it was made, who either concludes the contract or does some similar decisive act; but the representation remains in effect and it is because that is so, and because the court is satisfied in a proper case on the facts that it remained operative in the mind of the representee, that the court holds that under such circumstances the representee should not be bound.
+The law relating to reparation for harm suffered as a result of the conclusion of a contract in reliance upon a misrepresentation made in the course of pre contractual discussions proceeds in this respect upon the same basis.
+As Smith J observed in the Australian case of Jones v Dumbrell [1981] VR 199, 203: When a man makes a representation with the object of inducing another to enter into a contract with him, that other will ordinarily understand the representor, by his conduct in continuing the negotiations and concluding the contract, to be asserting, throughout, that the facts remain as they were initially represented to be.
+And the representor will ordinarily be well aware that his representation is still operating in this way, or at least will continue to desire that it shall do so.
+Commonly, therefore, an inducing representation is a continuing representation, in reality and not merely by construction of law.
+As Smith J indicated by his use of the words ordinarily and commonly, whether a representation should be treated as continuing depends upon the facts of the individual case (see also Macquarie Generation v Peabody Resources Ltd [2000] NSWCA 361, paras 3 22, per Mason P).
+Where a misrepresentation does not have a continuing effect, for example because it is withdrawn or lapses, or because the other party discovers the true state of affairs before the contract is concluded, it cannot induce the other party to enter into the contract and therefore cannot affect its validity or give rise to a remedy in damages for any loss resulting from its conclusion.
+As Lord Brougham observed in Irvine v Kirkpatrick (1850) 7 Bell App (HL) 186, 237 238, in order that the misrepresentation may be of any avail whatever, it must inure to the date of the contract.
+If the other party discovers the truth before he signs the contract, the misrepresentation and the concealment go for just absolutely nothing.
+Whether the remedy sought is reduction of the contract or damages for the loss suffered as a result of entering into it, in either case a representation may therefore be treated by the law as having a continuing effect, rather than as being an event whose legal consequences are necessarily fixed at the time when the statement in question was made.
+The continuing effect of a pre contractual representation is reflected in a continuing responsibility of the representor for its accuracy.
+Thus a person who subsequently discovers the falsity of facts which he has innocently misrepresented may be liable in damages if he fails to disclose the inaccuracy of his earlier representation: Brownlie v Miller (1880) 7 R (HL) 66, 79; Brownlie v Campbell (1880) 5 App Cas 925, 950 per Lord Blackburn.
+The same continuing responsibility can be seen in the treatment of representations which are true when made, but which become false by the time the contract is entered into: see, for example, Shankland & Co v Robinson & Co 1920 SC (HL) 103, 111 per Lord Dunedin.
+The law is thus capable, in appropriate circumstances, of imposing a continuing responsibility upon the maker of a pre contractual representation in situations where there is an interval of time between the making of the representation and the conclusion of a contract in reliance upon it, on the basis that, where the representation has a continuing effect, the representor has a continuing responsibility in respect of its accuracy.
+In the present case, the representation contained in the critical email was undoubtedly of a continuing nature so long as Mr Erskine remained the prospective contracting party.
+The question then arises whether, in the circumstances of this case, the representation continued after the identity of the prospective contracting party changed, and, if so, whether the respondents assumed a responsibility towards the appellant for the accuracy of the representation.
+Did the representation, and responsibility for its accuracy, continue after the identity of the contracting party changed?
+In principle, the possibility that a representation may continue to be asserted, and may have a causative effect so as to induce the conclusion of the contract, is not necessarily excluded where, as in the present case, the contracting parties are not the original representor and representee.
+In such a case, it is possible that the inference can be drawn from the parties conduct that they proceeded with the negotiation and conclusion of the contract on the basis that the accuracy of the representation continued to be asserted by the representor, implicitly if not expressly, after the identity of the prospective contracting party had changed.
+In such circumstances the representation may have continued to have a causative effect, so as to induce the conclusion of the contract.
+Where the inference to be drawn is that a representation continued to be made until the contract was concluded, it may also be inferred that the risk of harm being suffered as a result of reliance upon it, in the event that it was inaccurate, continued to be foreseeable.
+In such circumstances, the representor may be taken to have assumed responsibility for the accuracy of the representation towards the contracting party who relied upon it, even though that person was not the original representee.
+No authority has been cited in which the court has considered the liability of a contracting party for a representation inducing the conclusion of the contract by someone other than the original representee.
+The decision of the House of Lords in Briess v Woolley [1954] AC 333 is however relevant.
+The case concerned a fraudulent misrepresentation made in the course of pre contractual discussions by a shareholder in a company.
+He was subsequently authorised by the other shareholders to continue the negotiations as their agent, and in due course a contract was concluded.
+The shareholders were held liable in damages to the other contracting party, notwithstanding that the representation had been made by the shareholder before he began to negotiate on their behalf.
+Lord Reid stated at p 349: The misrepresentations were continuing representations intended to induce the other party to make the contract, and when that party made the contract to his detriment, a cause of action arose, and in my opinion it arose against both the agent and the principal.
+The agent continued to be fraudulent after he was appointed.
+It was his duty, having made false representations, to correct them before the other party acted on them to his detriment, but he continued to conceal the true facts.
+Lord Tucker added at p 354: the duty of the agent, who has made the misrepresentation, to correct it cannot be regarded as only a personal obligation.
+If he has in the meantime been appointed agent with authority to make representations for the purpose of inducing a contract he, in his capacity as agent, is by his conduct repeating the representations previously made by him.
+The same principle should also apply in the converse situation, where the representation is made to (rather than by) the agent prior to the commencement of his agency.
+In such a situation, depending of course on the facts, the representor can equally be taken to be, by his conduct, implicitly repeating the representation previously made, and can therefore owe a duty in respect of the accuracy of the representation towards the agents principal.
+The case of Briess v Woolley concerned a misrepresentation which was fraudulent rather than negligent; and it preceded the case of Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465.
+Once it is accepted that a negligent misrepresentation can give rise to a remedy in damages, however, there is no reason why the approach adopted in Briess should not apply to negligent as well as to fraudulent misrepresentations which are made in order to induce the representee to enter into a contract.
+A negligent misrepresentation is equally capable of having a continuing effect up until the time when the contract is concluded, where the person by whom the representation is made, or to whom it is addressed, becomes the agent of the person by whom the contract is concluded.
+In the present case, the change in the identity of the prospective contracting party did not affect the continuing nature of the representation, or the respondents continuing responsibility for its accuracy.
+It appears from the Lord Ordinarys findings that the negotiations which had been under way between Mr Erskine and the respondents, in the course of which the critical email was sent, simply continued after it had become apparent that a limited liability partnership was to be used as a vehicle for Mr Erskines investment.
+Neither party drew a line under the previous discussions, after the appellant was formed, in order to begin afresh.
+Neither party disclaimed what had previously been said in the course of their discussions, or sought assurances that it could be relied upon as between the appellant and the respondents.
+The seeking of such an assurance would no doubt have appeared to those involved to be an unnecessary formality.
+As the Lord Ordinary found, the representation made in the critical email remained operative in the mind of Mr Erskine after he began to act in the capacity of an agent of the appellant, up until the time when the lease was executed on behalf of the appellant.
+The appellant was thus induced to enter into the contract by that representation.
+In continuing and concluding the contractual negotiations with the appellant, through its agent Mr Erskine, without having withdrawn the representation earlier made to Mr Erskine as an individual, the respondents by their conduct implicitly asserted to the appellant the accuracy of that representation; and they did so in a situation where it continued to be foreseeable that the representation would induce the other party to the negotiations to enter into a contract.
+They therefore assumed a responsibility towards the appellant for the accuracy of the representation.
+They therefore owed the appellant a duty of care, which they failed to fulfil.
+The recovery of damages where a party to a contract was induced to enter into it
+by a negligent misrepresentation
+The law in Scotland governing the recovery of damages, where a party to a contract was induced to enter into it by a negligent misrepresentation made by or on behalf of another party to the contract, involves a consideration of section 10 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 and of the authorities in which that provision has been discussed.
+Following the decision of the House of Lords in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, the Scottish courts accepted the general principle that damages could be recovered for economic loss suffered as a result of reliance upon a negligent misrepresentation, where the relationship between the person making the representation and the person relying upon it was of a kind which gave rise to a duty of care.
+The salient feature of that case, and of later analogous cases such as Smith v Eric S Bush [1990] 1 AC 831, which gave rise to such a duty, was identified by Lord Bridge of Harwich in Caparo Industries plc v Dickman [1990] 2 AC 605, 620 621: The salient feature of all these cases is that the defendant giving advice or information was fully aware of the nature of the transaction which the plaintiff had in contemplation, knew that the advice or information would be communicated to him directly or indirectly and knew that it was very likely that the plaintiff would rely on that advice or information in deciding whether or not to engage in the transaction in contemplation.
+In these circumstances the defendant could clearly be expected, subject always to the effect of any disclaimer of responsibility, specifically to anticipate that the plaintiff would rely on the advice or information given by the defendant for the very purpose for which he did in the event rely on it.
+So also the plaintiff, subject again to the effect of any disclaimer, would in that situation reasonably suppose that he was entitled to rely on the advice or information communicated to him for the very purpose for which he required it.
+Where a representation is made by one person to another in relation to the subject matter of a contract which they are contemplating entering into, the circumstances may plainly be of the kind described by Lord Bridge.
+Nevertheless, in a number of decisions at first instance, the Scottish courts treated such cases as an exception to the principle established by Hedley Byrne, on the basis that the doctrine of precedent required them to follow the decision of the Inner House in Manners v Whitehead (1898) 1 F 171.
+It had been held in that case, in the words of the headnote, that A person who is induced to enter into a contract by misrepresentations is not entitled to damages from the person making the representations, unless they are fraudulent.
+The decision reflected the view of the law then prevailing both in Scotland and in England (see Le Lievre v Gould [1893] 1 QB 491): a view from which the House of Lords departed in Hedley Byrne.
+This exception to the Hedley Byrne principle was illogical and unjust.
+It resulted in a situation where it was accepted that A could sue B where Bs negligent misrepresentation induced A to enter into a contract with C, provided there was a special relationship between A and B, but not where it induced A to enter into a contract with B himself (see, for example, Twomax Ltd v Dickson, McFarlane & Robinson 1982 SC 113).
+The Scottish Law Commission responded by recommending legislative reform.
+Its Report on Negligent Misrepresentation (Scot Law Com No 92, 1985) contained a draft Bill, which was enacted as section 10 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.
+Section 10(1) provides: A party to a contract who has been induced to enter into it by negligent misrepresentation made by or on behalf of another party to the contract shall not be disentitled, by reason only that the misrepresentation is not fraudulent, from recovering damages from the other party in respect of any loss or damage he has suffered as a result of the misrepresentation; and any rule of law that such damages cannot be recovered unless fraud is proved shall cease to have effect.
+Section 10(1) is drafted in a negative form.
+It does not provide that a party to a contract who has been induced to enter into it by negligent misrepresentation made by or on behalf of another party to the contract is entitled to recover damages: it provides that such a person shall not be disentitled by reason only that the misrepresentation is not fraudulent, and that any rule of law that such damages cannot be recovered unless fraud is proved shall cease to have effect.
+Whether such a person is entitled to damages therefore depends on the common law, modified by section 10(1) only to the extent that recovery is not excluded by reason of the absence of fraud.
+The consequence is that entitlement to damages depends upon establishing the breach of a duty of care, since at common law it is the breach of a duty of care which renders a negligent misrepresentation wrongful.
+This approach reflects the Commissions identification of the mischief in the existing law as being the rule in Manners v Whitehead, as it was described: that is to say, the requirement to establish fraud.
+It considered, and rejected, the possibility that the Scottish legislation should be modelled upon section 2(1) of the Misrepresentation Act 1967: a complex provision which has the effect of dispensing with the need to establish a duty of care in English law where a person has entered into a contract after a misrepresentation has been made to him by another party to the contract, and as a result has suffered loss.
+The Commission considered that, in Scotland, the common law should continue to govern the question whether the circumstances were such as to give rise to a duty of care (para 3.2).
+The Commission noted that the relationship between parties in pre contractual discussions was one where the proximity between them, and the foreseeability of reliance upon representations, were particularly apparent (para 2.3), but considered that the existence of a duty of care should continue to be governed by the common law (para 3.2).
+There are indeed a variety of circumstances in which a duty of care might be absent: for example, where the representation was accompanied by an effective disclaimer of responsibility, or where the representation was subject to a time limit which had lapsed, or where reliance upon the representation was not reasonably foreseeable, or where the parties by their contract effectively excluded liability for negligent pre contractual representations, or where the contract itself governs the subject matter of the representation.
+Section 10(1) does not therefore impose a statutory liability for careless misrepresentations which have induced a party to enter into a contract, but removes the barrier which previously existed to the recovery of damages where a party had been induced to enter into a contract by a misrepresentation made in breach of a duty of care.
+This point does not emerge altogether clearly from the two authorities in which section 10(1) has been considered.
+In the first, Hamilton v Allied Domecq plc 2001 SC 829, the Lord Ordinary, Lord Carloway, was not assisted by the fact that he was not referred to any Scottish authorities on the subject of negligent misrepresentation but was instead referred to section 2(1) of the Misrepresentation Act 1967.
+His Lordship stated at para 17 that, as a result of section 10(1) of the 1985 Act, there was no need to enter into the field of Hedley Byrne type special relationships and whether a duty of care was owed: the statute provided the remedy, and its practical effect was that one contracting party had a duty to the other not to make negligent misrepresentations which induced the other to contract.
+That approach was followed by Lord Glennie in BSA International SA v Irvine [2010] CSOH 78.
+He stated at para 15 that, as a result of the section, it was enough to found a claim for damages that the representation was negligent: there was no need to import into the relationship of intending contractual parties concepts that had developed in the law of tort and delict to identify other situations in which a party might owe a duty of care to another as regards the accuracy of statements made by him.
+Lord Glennie added at para 16 that the issue was likely to be almost entirely academic, since the criteria for the imposition of a duty of care would invariably be satisfied when the misstatement was an operative misrepresentation, in the sense in which that expression had been used by Prof J M Thomson in his article, Misrepresentation, 2001 SLT 279: that is to say, an inaccurate statement of fact made in pre contractual discussions which induced the misrepresentee to enter into the contract and which would have induced a reasonable person to do so.
+I sympathise with the view that this issue will often be academic, for the reason given by Prof Thomson and adopted by Lord Glennie.
+The law does not impose a general duty of care in the conduct of contractual negotiations, reflecting the fact that each party is entitled, within the limits set by the law, to pursue its own interests.
+As the Supreme Court of Canada has observed, the prospect of causing deprivation by economic loss is implicit in the negotiating environment (Martel Building Ltd v Canada [2000] 2 SCR 860, para 51).
+It is also possible that a contract entered into between the parties may limit or exclude the scope for finding a duty of care in respect of pre contractual representations.
+Nevertheless, it has long been accepted that the relationship between the parties to contractual negotiations may give rise to such a duty in respect of representations which the representor can reasonably foresee are likely to induce the other party to enter into the contract, unless circumstances negativing the existence of such a duty, such as those mentioned in para 38, are present.
+It is therefore unnecessary in most cases to go back to the fundamental principles governing the existence of a duty of care, as set out in the tripartite test adopted in Caparo Industries plc v Dickman [1990] 2 AC 605, or to undertake an assessment of whether a special relationship existed.
+Questions as to the circumstances in which the relationship between parties negotiating a contract gives rise to a duty of care in respect of representations inducing the contract are not now of such a novel character as normally to require consideration from first principles.
+As I have explained, however, that does not mean that liability will necessarily exist where a party to a contract has been induced to enter into it by a negligent misrepresentation made by or on behalf of another party to the contract.
+Since section 10(1) does not create a statutory liability, the question whether the misrepresentation was made in breach of a duty of care still has to be answered, even if the answer may sometimes be obvious.
+In the present case, it is plain, on the Lord Ordinarys findings of fact, that a duty of care was owed by the respondents to Mr Erskine in respect of the representation contained in the critical email.
+For the reasons I have explained, a duty of care was also owed by the respondents to the appellant, when they negotiated and concluded the contract on the basis of the discussions previously held with Mr Erskine.
+The respondents acted in breach of that duty of care, and are therefore liable in damages for any loss suffered by the appellant as a result.
+The case will therefore have to return to the Court of Session for further procedure.
+Conclusion
+For these reasons, I would allow the appeal.
+LORD TOULSON
+I agree with the reasoning and conclusion of Lord Reed.
+I add my own shorter judgment because the case is in some respects novel.
+However, its solution requires no new principle.
+Once properly identified, the application of the relevant principles becomes straightforward, but they were perhaps obscured rather than illuminated by the way in which the case was presented below.
+The claim was for the reduction (ie setting aside) of the lease entered into between the claimant Cramaso, acting through the agency of Mr Erskine, as lessee, and the respondent trustees, as lessor, and for repayment of Cramasos associated expenses.
+Cramaso was created by Mr Erskine for the purpose of taking the lease, and he was its controller or, as the Lord Ordinary described him, its directing mind.
+The ground of Cramasos claim was that it had been induced to enter into the lease by a misrepresentation made either fraudulently or negligently by an agent of the trustees to Mr Erskine.
+The representation was made before Cramasos creation.
+The Lord Ordinary found that Mr Erskine had been induced to enter into the lease on behalf of Cramaso by a misrepresentation.
+He rejected the allegation that the misrepresentation had been made fraudulently, but he found that it had been made negligently.
+However, he granted absolvitor (ie dismissed the proceedings) on the ground that Cramaso had not come into the picture at the time when the misrepresentation was made to Mr Erskine.
+For that reason he concluded that (a) no duty of care was owed by the trustees to Cramaso at the time when the misrepresentation was made, and (b) Cramaso therefore had no cause of action against the trustees and no right to reduction of the lease.
+I part company with the Lord Ordinary, and the Second Division which upheld his judgment, at stage (b).
+In the courts below attention was concentrated on the legal position at the time of the representation, and this was regarded as decisive.
+In this court Mr Dewar QC refocused the argument in response to questions and comments from the bench.
+He switched from focusing on the time of the misrepresentation, and the question whether at that time the trustees duty of care might be defined so as to encompass a category of affected persons capable of including Cramaso on its later formation, to the different issue whether the absence of a duty of care owed to Cramaso at the time of the misrepresentation was fatal to its claim on the facts as found by the Lord Ordinary.
+The change of tack took Mr Sandison QC by surprise, but he fairly and properly accepted that there was no injustice in the court addressing the issue.
+Logically the first issue to consider is the challenge made by the trustees to the Lord Ordinarys finding that there was a negligent misrepresentation to Mr Erskine.
+The question was essentially one of fact on which the Lord Ordinary was entitled to find as he did.
+However, Mr Sandison did raise one point of law.
+He submitted that it was necessary for Cramaso to show that at the time of Mr Lewiss email dated 29 September 2006 to Mr Kennedy he knew or ought to have known that there was a high degree of probability that Mr Erskine would be sent the email and would rely upon it.
+Mr Sandison based that submission on passages in Caparo Industries plc v Dickman [1990] 2 AC 605 from the speeches of Lord Bridge at pp 620 621, Lord Oliver at p 638 and Lord Jauncey at pp 660 661.
+The submission is ill founded.
+In Caparo the court was considering the familiar situation in which it is alleged that D, the defendant, was negligent in a statement made to C, the claimant, upon which C relied in entering into a transaction with T, a third party.
+It is readily understandable that in that type of situation cogent grounds are needed to explain why D ought to have had C in his contemplation as somebody entitled to rely on Ds statement when considering whether to enter into a transaction with T.
+The situation where a statement is made during contractual negotiations by one prospective contracting party to another is quite different.
+Here, the statement made by Mr Lewis was intended for the attention of Mr Erskine in relation to the very transaction about which they were negotiating.
+Since Esso Petroleum Co Ltd v Mardon [1976] QB 801, 820, it has been established that the principle in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 is capable of applying to pre contractual representations.
+Lord Denning MR stated the principle as follows: if a man, who has or professes to have special knowledge or skill, makes a representation by virtue thereof to another be it advice, information or opinion with the intention of inducing him to enter into a contract with him, he is under a duty to use reasonable care to see that the representation is correct, and that the advice, information or opinion is reliable.
+If he negligently gives unsound advice or misleading information or expresses an erroneous opinion, and thereby induces the other side to enter into a contract with him, he is liable in damages.
+This is not necessarily an exhaustive statement of the circumstances in which a duty of care may arise in connection with a statement made in a pre contractual context.
+However, where the principle in Esso v Marden applies, there is no need for a court to go into issues of the kind discussed in Caparo and the various other authorities relied on by Mr Sandison, including Smith v Eric S Bush [1990] 1 AC 831, White v Jones [1995] 2 AC 207, Al Saudi Banque v Clark Pixley [1990] Ch 313 and Customs & Excise Commissioners v Barclays Bank plc [2007] 1 AC 181.
+Those were all cases where C claimed to have entered into a transaction with T in reliance on a representation by D and the courts wrestled with the problem how to determine whether D owed C a duty of care in relation to that transaction.
+In particular, the courts struggled with the question how the putative duty was to be defined so as to avoid, in Cardozo CJs memorable expression in Ultramares Corporation v Touche (1931) 174 NE 441, 444 liability in an indeterminate amount for an indeterminate time to an indeterminate class.
+No comparable problem arises in considering whether the trustees owed a duty of care to Mr Erskine when making a representation to him about the grouse moor which they were hoping that he would lease.
+Even, if Mr Sandisons primary submission on the Caparo point were right, it would in any event be immaterial what Mr Lewis may have considered to be the degree of probability that Mr Kennedy would pass on his email to Mr Erskine, since Mr Lewis invited Mr Kennedy to consider passing it on, which Mr Kennedy unsurprisingly did.
+It was marketing information provided by the trustees, through Mr Lewis, to their agent with a view to its being used in the lease negotiations.
+I turn to the point on which Cramasos claim foundered in the courts below.
+The issue is whether it is fatal to Cramasos claim that the negligent misrepresentation was made before Cramaso was formed or even mentioned.
+The formation of Cramaso made no difference to the subject matter of the negotiations or to the people involved in conducting them.
+What changed was the role of Mr Erskine.
+From being himself the prospective lessee, he became the agent of a company created and controlled by him for the purpose of taking the lease.
+The question which arises in these circumstances is whether the earlier misrepresentation is to be regarded as water under the bridge, a matter about which Cramaso could have no cause for complaint albeit that its factual effect was to induce Mr Erskine to go ahead with the transaction which was concluded by the execution of the lease, or whether the misrepresentation is to be regarded as having continued up to the time of the execution of the lease so as to entitle Cramaso to complain of it.
+As a matter of general principle, a representation made during contractual negotiations for the purpose of inducing a contract will ordinarily be regarded as continuing until the contract is actually concluded because it will generally be reasonable for the representee to continue to rely on it.
+There may be exceptions, for example where there has been a material change of circumstances which would make the representation irrelevant, but I can see no reason to depart from the general principle in the present case.
+It is unnecessary for me to refer to all the authorities to which Lord Reed has drawn attention.
+However, Briess v Woolley [1954] AC 333 is particularly relevant to the present case because of the part played at the time of the representation by a person who became the agent of one of the parties after the representation was made but before the contract was made.
+The plaintiffs entered into a contract to buy the shares of company X as a result of a fraudulent representation by R, who was Xs managing director.
+At the time of making the false representation R had no authority to negotiate a sale of the shares.
+He was subsequently authorised by Xs shareholders to act on their behalf in the matter.
+The plaintiffs sued the sellers.
+The plaintiffs won at first instance, lost in the Court of Appeal but won in the House of Lords.
+They lost in the Court of Appeal because it was held, at [1953] 2 QB 218, 222, that the misrepresentation had been made once and for all before R became the sellers agent for the purposes of the sale.
+The Court of Appeal also held that there was no ratification of Rs earlier conduct.
+Its conclusion on the latter point was upheld by the House of Lords, but the appeal succeeded on the basis that the false representation was to be regarded as a continuing representation.
+Mr Gerald Gardiner QC on behalf of the plaintiffs presented a simple argument.
+He submitted at p 335: If one effects a sale by ones agent, who signs the contract, one cannot ratify the contract and take the money payable under it while at the same time disclaiming the way in which the contract was brought about.
+Cramasos argument in the present case is essentially the same, namely that the trustees cannot disclaim the way in which the contract was brought about by their agent.
+Mr Gardiners submission was echoed in the speech of Lord Reid at p 349.
+He rejected: the contention that a principal can disclaim responsibility for fraudulent misrepresentations made by his agent which, although made before the agency commenced, to the agents knowledge continued to influence the other party after his appointment as agent and finally induced the other party to enter into the contract which the agent had been authorised to make and did make on behalf of his principal.
+The misrepresentations were continuing representations intended to induce the other party to make the contract, and when that party made the contract to his detriment, a cause of action arose, and in my opinion it arose against both the agent and the principal.
+Lord Tucker at pp 353 354 approved the statement of the trial judge that the law regarded the representations as continuing during the whole period between the time the representations were made and the time when they were finally acted upon.
+He said: It was contended by counsel for the respondents that when once the representations were made the wrongful act was complete although no action for damages would lie until the representee suffered damage.
+He argued that the representations were not continuing but the consequences of the original representation continued, and accordingly, provided that the representor was not the agent of the respondents when the original representation was made, they could not be held responsible because the consequences of that representation took effect at a time when the representor had become their agent.
+No authority for this proposition was cited, and it is, in my view, founded upon error.
+The tort of fraudulent misrepresentation is not complete when the misrepresentation is made.
+It becomes complete when the misrepresentation not having been corrected in the meantime is acted upon by the representee.
+Damage giving rise to a claim for damages may not follow or may not result until a later date, but once the misrepresentation is acted upon by the representee the tortious act is complete provided that the representation is false at that date.
+If false when made but true when acted upon there is no misrepresentation.
+In Spencer Bower on Actionable Misrepresentation, 2nd ed, p 77, article 73, it is stated: It is commonly said that the representation must be shown to have been false when made.
+But this is not quite correct.
+The only real issue is was it true or false when it was acted upon? In Halsburys Laws of England, 2nd ed, vol XX111, p 29, para 44, it is stated: Where there is an appreciable interval between the two dates above mentioned [ie date when made and date when acted upon], and the representation relates to an existing state of things, the representor is deemed to be repeating his representation at every successive moment during the interval, unless he withdraws or modifies it by timely notice to the representee in the meantime.
+I do not think the accuracy of these statements can be challenged.
+It is true that there does not appear to be any express authority which can be quoted as an example of the application of this principle to a case of principal and agent where the agency commences after the making of a representation which is allowed by the agent to continue uncorrected with knowledge of its falsity until acted upon.
+I agree, however, with Barry J, that the duty of the agent, who has made the misrepresentation, to correct it cannot be regarded as only a personal obligation.
+If he has in the meantime been appointed agent with authority to make representations for the purpose of inducing a contract he, in his capacity as agent, is by his conduct repeating the representations previously made by him.
+Although that was a case of a fraudulent misrepresentation, I cannot see that it makes a difference to the continuing nature of the representation whether it was fraudulent or negligent.
+It is, of course, true that a negligent misrepresentor is unlikely to be aware that he has been negligent, whereas the maker of a deliberately false statement will know what he has done.
+However, that does not affect the general proposition stated in Halsburys Laws which Lord Tucker cited with approval, and it is logical that it should not do so.
+What matters is the continuing potency of the representation as an inducing factor.
+The potency and duration of a representation do not depend on the honesty or dishonesty of its maker.
+In Briess v Woolley R was the representor, whereas in the present case Mr Erskine was the representee.
+But I do not see why that distinction should make any difference to the principle.
+The proper conclusion is that the representation was a continuing representation, which operated as an inducing factor on the mind of Mr Erskine after he became Cramasos agent, and Cramaso was entitled to rely on it, just as Cramaso (on the authority of Briess v Woolley) would have carried responsibility for the ongoing effect of a prior misrepresentation by Mr Erskine to the trustees.
+On that reasoning I would hold that the decisions of the lower courts were wrong.
diff --git a/UK-Abs/test-data/judgement/uksc-2012-0072.txt b/UK-Abs/test-data/judgement/uksc-2012-0072.txt
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+Where an application is made for the extradition of a convicted person to a category 1 territory, ie pursuant to a European arrest warrant, the warrant is required by section 2(6)(e) of the Extradition Act 2003 to include particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence.
+The purpose of this requirement is to enable the court to apply section 65(2)(c), (3)(c), (4)(c) and (5)(c).
+These provide minimum sentences of imprisonment or detention which must have been imposed in order to disclose an extradition offence.
+The minimum periods are 12 months in the case of offences on the European Framework list or four months for offences which are not on the European Framework list but satisfy the relevant requirement of double criminality.
+In the present case, the relevant provision is section 65(3)(c), which applies to offences committed in the category 1 territory which would constitute an offence under the law of the relevant part of the United Kingdom if it occurred there, provided that a sentence of imprisonment or another form of detention for a term of four months or a greater punishment has been imposed.
+In many states of the European Union the criminal law provides for the aggregation of successive sentences imposed by criminal courts on different occasions so as to produce a single sentence reflecting the totality of the course of criminality disclosed.
+This will commonly result in a reduction of the total period of imprisonment imposed, by comparison with the period arrived at by adding up each of the original sentences.
+Polands aggregation procedure is contained in articles 85 86 of the Penal Code and articles 569 577 of the Criminal Procedures Code, which require a court to aggregate successive sentences to produce a single cumulative penalty.
+The effect of this procedure has been considered in a number of cases in which a European arrest warrant has given particulars of the cumulative penalty but not of the individual sentences which were aggregated so as to produce it.
+The question whether this satisfies sections 2(6)(e) and 65(3)(c) of the Act was finally settled in Pilecki v Circuit Court of Legnica, Poland [2008] 1 WLR 325.
+The House of Lords held that, at any rate in a case where each of the original sentences was for conduct satisfying all the other requirements for an extradition offence, it was enough for the warrant to specify the cumulative sentence.
+If it exceeded four months it was irrelevant that some of the original sentences might have been less than that.
+The present appeal concerns the converse situation.
+What happens if the warrant specifies only the original sentences, but after it has been issued they have been aggregated and their totality reduced?
+Lukasz Zakrzewski, was convicted on four occasions in Poland of various offences of dishonesty or violence.
+On 10 December 2003, he was convicted by the District Court in Grudziadz of assault and robbery committed on separate occasions in February 2003, for which he received a combined sentence of 14 months imprisonment.
+On 18 March 2004, he was convicted by the same court of two distinct offences of theft, and received a further combined sentence of 15 months imprisonment.
+On 28 May 2004, he was convicted of theft by the District Court of Swiecle and sentenced to six months imprisonment.
+On 14 January 2005, he was back before the District Court of Grudziadz, which convicted him of theft and sentenced him to a further ten months imprisonment.
+All of these sentences of imprisonment were initially suspended, but all of them were subsequently activated either by the commission of further offences during the period of probation which followed conviction, or by breaches of the probation terms.
+On 24 February 2010, Mr Zakrzewski having absconded, the Regional Court of Lodz issued a European Arrest Warrant against him, based on his conviction on these four occasions.
+The warrant specified the sentence passed on each occasion.
+Mr Zakrzewski was arrested in England on 28 September 2010 and brought before City of Westminster Magistrates Court on the same day.
+At that time, he was facing further criminal charges in the United Kingdom.
+The extradition proceedings were therefore adjourned pending the resolution of proceedings arising from them.
+During the adjournment, Mr Zakrzewski applied to the District Court of Grudziadz to have the four sentences aggregated.
+The court duly aggregated them, and on 19 April 2011 imposed a cumulative sentence of 22 months, as opposed to the aggregate of 45 months under the original sentences.
+When Mr Zakrzewski came back before Westminster Magistrates on 20 May 2011, it was submitted on his behalf that the aggregation order meant that the warrant no longer gave the particulars required by section 2(6)(e) because the only relevant sentence was now the cumulative sentence.
+It followed, so it was said, that the warrant had become invalid, or that the court should exercise an inherent jurisdiction not to proceed with the extradition on the ground that it no longer gave proper, fair or accurate particulars: see Criminal Court at the National High Court, First Division v Murua [2010] EWHC 2609 (Admin).
+It will be noted that each of the original sentences was for conduct in Poland which would have been criminal if it had occurred in England, and that the original sentences and the cumulative sentence all exceeded four months.
+The argument advanced on Mr Zakrzewskis behalf is therefore hardly overburdened with merit.
+It is about as technical as it could possibly be.
+It is common ground that a further warrant giving the same particulars but specifying the cumulative sentence would be good.
+District Judge Rose rejected the argument in both its forms and made the extradition order.
+But it was accepted in both forms by Lloyd Jones J on appeal to the High Court.
+He allowed the appeal against the extradition order on 7 February 2012.
+In summary, he held that the information in the warrant must relate to the current operative sentence and not to earlier sentences which have been subsumed in an aggregated order.
+In determining whether the requirement of section 65 is satisfied, the court needs to know the total length of time which the court of the requesting state has ordered must be served in prison.
+In the present case, that is the aggregated order.: [2012] 1 WLR 2248, para 26.
+The basic features of the scheme for the execution of a European arrest warrant under Part 1 of the Extradition Act 2003 are too familiar to need extensive restatement here.
+It has often been pointed out that the contents of the warrant are critical to the operation of the scheme of both the Council Framework Decision 2002/584/JHA of 13 June 2002 and the United Kingdom Act.
+Extradition under Part 1 of the Act is by way of direct execution of the warrant.
+To fall within the definition of a Part 1 warrant and be capable of initiating extradition proceedings, it must contain the statements and information required by section 2 of the Act, which reflect the mandatory contents provided for by article 8 of the Framework Decision.
+The procedure operates at each stage by reference to the prescribed particulars contained in it.
+Thus, under section 10, the court must decide whether the offence specified in the Part 1 warrant is an extradition offence as defined by section 64 (in an accusation case) or section 65 (in a conviction case).
+Both sections require the court to consider whether the offence constituted by the conduct satisfied the requirements of those sections.
+The conduct for this purpose means that specified in the warrant, and it is not permissible to conduct an independent examination of the elements of the offence under the law of the requesting state: Office of the Kings Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, paras 16 (Lord Bingham of Cornhill) and 30 (Lord Hope of Craighead).
+Under section 64(2)(b) and (c), the questions whether the conduct falls within the European Framework list and whether it is punishable under the law of the requesting state by a sentence of imprisonment of three years or more are to be determined by reference to information certified by the requesting authority, which may be (and commonly is) certified in the warrant itself: see Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31.
+The same applies to the corresponding provisions of section 65(2)(b) and (c).
+If the warrant contains the prescribed particulars and these disclose an extradition offence, the court must extradite the defendant, unless one of the limited exceptions specified in the Act applies.
+The exceptions to the otherwise mandatory extradition of the defendant are dealt with by sections 10 to 21 and 25 of the Act.
+Some of these also operate by reference to the conduct, which must in the circumstances mean the conduct specified in the warrant: see sections 15 and 19B (as inserted by section 42 of, and para 4(2) of Schedule 13 to, the Police and Justice Act 2006).
+All of these provisions reflect the underlying purpose of the Framework Decision and Part 1 of the Extradition Act to create a simplified and accelerated procedure based on the mutual recognition by the requested state of the antecedent decision to issue the warrant by the judicial authority in the requesting state.
+Recital (10) of the Framework Decision records that the mechanism of the European arrest warrant is based on a high level of confidence between member states.
+Or, as Lord Phillips put it in Assange v Swedish Prosecution Authority (Nos 1 & 2) [2012] 2 AC 471, para 79, under the scheme of the Framework Decision the safeguard against the inappropriate issue of an EAW lies in the process antecedent to the issue of the EAW.
+It follows that the scheme of the Framework Decision and of Part 1 of the 2003 Act is that as a general rule the court of the executing state is bound to take the statements and information in the warrant at face value.
+The validity of the warrant depends on whether the prescribed particulars are to be found in it, and not on whether they are correct.
+It cannot be open to a defendant to challenge the validity of a warrant which contains the prescribed particulars by reference to extraneous evidence tending to show that those statements and information are wrong.
+If this is true of statements and information in a warrant which were wrong at the time of issue, it must necessarily be true of statements which were correct at the time of issue but ceased to be correct as a result of subsequent events.
+Validity is not a transient state.
+A warrant is either valid or not.
+It cannot change from one to the other over time.
+It does not, however, follow from this that there is nothing to be done about it if the prescribed particulars in the warrant are or have become incorrect.
+It only means that the remedy must be found at the stage when the court is considering whether to extradite.
+Neither the Framework Decision nor Part 1 of the Act provides in terms for non extradition on the ground of a factual error in the warrant.
+There are, however, two safeguards against an unjustified extradition in those circumstances.
+The first and main one is the mutual trust between states party to the Framework Decision that informs the entire scheme.
+The requesting judicial authority has a right, recognised by article 15.3 of the Framework Decision, to forward additional information at any time.
+These are receivable in evidence by an English court under section 202 of the Act on the same basis as the warrant itself.
+If necessary, further information may be requested by the executing court under article 15.2.
+The Framework Decision proceeds on the assumption that requesting states can be trusted to ensure that statements and information in a European arrest warrant are true.
+By the same token, if they subsequently cease to be true, either the warrant will be withdrawn or the statements and information in it will be corrected by the provision of further information, with or without a request for it.
+The second safeguard lies in the inherent right of an English court, as the executing court, to ensure that its process is not abused.
+One form of abuse of process is the fortunately rare case in which the prosecutor has manipulated the process of the executing court for a collateral and improper purpose: see R (Government of the United States of America) v Bow Street Magistrates Court [2007] 1 WLR 1157.
+We are not concerned with anything of that kind on this appeal.
+Another category comprises cases, rather less rare, in which the prescribed particulars are given in the warrant but they are wrong.
+In Caldarelli v Judge for Preliminary Investigations of the Court of Naples, Italy [2008] 1 WLR 1724, para 24, Lord Bingham observed that "it might in some circumstances be necessary to question statements made in the EAW, notwithstanding the general rule.
+The question is in what circumstances is the power envisaged by Lord Bingham exercisable.
+The clearest statement of the principle is to be found in the decision of Sir Anthony May, President of the Queens Bench Division of the High Court, in Criminal Court at the National High Court, First Division v Murua [2010] EWHC 2609 (Admin), which has been followed by the High Court on a number of occasions.
+Murua was an accusation case.
+The warrant alleged serious terrorist offences involving danger to life and concealment of identity.
+Both of these were significant aggravating factors under Spanish law, warranting imprisonment upon conviction for up to 48 years.
+The particulars of the offence specified the aggravating factors, and the maximum sentence associated with them.
+However, at the trial in Spain of seven other defendants for the same conduct, the prosecution had accepted that these aggravating factors could not be proved.
+The charges were reformulated, and the co defendants convicted of lesser offences carrying a maximum term of imprisonment of three years.
+Sir Anthony May said, at paras 58 59: 58.
+The court's task jurisdiction, if you like is to determine whether the particulars required by section 2(4) have been properly given.
+It is a task to be undertaken with firm regard to mutual co operation, recognition and respect.
+It does not extend to a debatable analysis of arguably discrepant evidence, nor to a detailed critique of the law of the requesting state as given by the issuing judicial authority.
+It may, however, occasionally be necessary to ask, on appropriately clear facts, whether the description of the conduct alleged to constitute the alleged extradition offence is fair, proper and accurate.
+I understood Ms Cumberland to accept this, agreeing that it was in the end a matter of fact and degree.
+She stressed, however, a variety of floodgates arguments with which in general I agree, that this kind of inquiry should not be entertained in any case where to do so would undermine the principles to be found in the introductory preambles to the Council Framework Decision of 13 June 2002. 59.
+Ms Cumberland submitted that an argument of the kind which succeeded before the District Judge can be raised, but not with reference to section 2 of the 2003 Act.
+She said that the proper approach was to deal with it as an abuse argument, and this ties in with the appellant's third ground of appeal, to which I shall come in a few moments.
+I do not agree that the respondent's case could only be advanced as an abuse argument.
+It can properly be advanced, as it was, as a contention that the description in the warrant of the conduct alleged did not sufficiently conform with the requirements set out in section 2 for the reasons advanced by Mr Summers with reference to Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31 and Pilecki v Circuit Court of Legnica, Poland [2008] 1 WLR 325.
+If that is shown, it is not a valid Part 1 warrant.
+I agree with this statement, subject to four observations.
+The first is that the jurisdiction is exceptional.
+The statements in the warrant must comprise statutory particulars which are wrong or incomplete in some respect which is misleading (though not necessarily intentionally).
+Secondly, the true facts required to correct the error or omission must be clear and beyond legitimate dispute.
+The power of the court to prevent abuse of its process must be exercised in the light of the purposes of that process.
+In extradition cases, it must have regard, as Sir Anthony May observed, to the scheme and purpose of the legislation.
+It is not therefore to be used as an indirect way of mounting a contentious challenge to the factual or evidential basis for the conduct alleged in the warrant, this being a matter for the requesting court.
+Third, the error or omission must be material to the operation of the statutory scheme.
+No doubt errors in some particulars (such as the identity of the defendant or the offence charged) would by their very nature be material.
+In other cases, the materiality of the error will depend on its impact on the decision whether or not to order extradition.
+The fourth observation follows from the third.
+In my view, Ms Cumberland was right to submit to Sir Anthony May in Murua that the sole juridical basis for the inquiry into the accuracy of the particulars in the warrant is abuse of process.
+I do not think that it goes to the validity of the warrant.
+This is because in considering whether to refuse extradition on the ground of abuse of process, the materiality of the error in the warrant will be of critical importance, whereas if the error goes to the validity of the warrant, no question of materiality can arise.
+An invalid warrant is incapable of initiating extradition proceedings.
+I do not think that it is consistent with the scheme of the Framework Decision to refuse to act on a warrant in which the prescribed particulars were included, merely because those particulars contain immaterial errors.
+I now return to the facts of Mr Zakrzewskis case.
+The warrant issued against him was undoubtedly a valid warrant when it was issued.
+It was therefore effective to authorise the commencement of extradition proceedings in the United Kingdom against him.
+It did not become invalid when the aggregation order was made.
+It follows that the only basis on which Mr Zakrzewski could object to his extradition was that the conduct of the requesting judicial authority in persisting with extradition proceedings after the aggregation order was an abuse of those proceedings.
+The short answer to this contention in the present case is that the particulars of the sentence in the warrant, although no longer complete, were not wrong.
+This is because the Regional Court of Lodz supplied further information about the effect of the aggregation order in the following terms: The consequence of a composite sentence having been passed is that the single penalties imposed for each of the offences are replaced by that single composite sentence.
+In such a case, the penalties imposed for each of the offences are not to be enforced separately, but replaced with the new composite sentence that is to be enforced in respect of the convict.
+It should be noted that the issue of a composite sentence does not invalidate any of the individual sentences.
+This answer was effective to explain the contents of the warrant.
+Its effect is that the original sentences remain valid but the cumulative sentence determines what period of imprisonment will be treated as satisfying them.
+Therefore, the information in the warrant about the original sentences did not cease to be true when the cumulative sentence was passed.
+Although true, the information in the warrant about the sentence imposed became incomplete when the cumulative sentence was passed.
+The prosecution of extradition proceedings on a warrant containing prescribed particulars which are (or have become) incomplete is capable of being an abuse of process, but only if the information omitted is material to the operation of the statutory scheme.
+In this case the fact that the period of imprisonment which would satisfy the four original sentences had been shortened was wholly immaterial, because even the shorter cumulative sentence was substantially longer than the minimum of four months.
+As Lord Hope observed in Pilecki [2008] 1 WLR 325, para 29, all the executing court needs to know in these circumstances is whether or not the sentence was one for at least four months.
+The position would be different if the composite sentence was below the four month threshold, because there would then be no extradition offence.
+I cannot agree with Lloyd Jones J [2012] 1 WLR 2248, para 26 that the failure of the warrant to specify the current operative sentence was fatal.
+The sentence of the court will rarely be the current operative sentence, since the period to be served will commonly be affected by a variety of factors, such as remission or parole.
+As the cases on aggregation procedure show, they may also be affected by aspects of criminal procedure which will vary from one jurisdiction to another without affecting the application of the ordinary criteria for extradition or undermining the purpose of the Framework Decision or Part I of the Act.
+It follows that in the ordinary course the appeal would have been allowed and the order of the District Judge restored.
+However, just before this judgment was due to be delivered, the Court was informed that Mr. Zakrzewski had returned voluntarily to Poland after the argument on the appeal and been arrested there.
+Accordingly, the warrant has been withdrawn by the court which issued it.
+This does not affect the issue which the Court has to decide.
+But it does mean that, formally, the appeal must now be dismissed: see section 43(4).
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+This appeal arises from a sorry case of a serious failure by an air tour operator to see that proper provision was made for the needs of a disabled passenger, contrary to the requirements of the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007 (SI 2007/1895) (the UK Disability Regulations).
+The UK Disability Regulations implement Regulation (EC) No 1107/2006 of the European Parliament and the Council concerning the rights of disabled persons and persons with reduced mobility when travelling by air (the EC Disability Regulation).
+The issue is whether a court may award damages for a claimants discomfort and injury to feelings caused by a breach of the UK Disability Regulations.
+The conclusion of the courts below was that any such award is precluded by the Montreal Convention, as adopted in the EU by the Montreal Regulation (or, to use its full title, Council Regulation (EC) No 2027/97 on air carrier liability in the event of accidents, as amended by Parliament and Council Regulation (EC) No 889/2002).
+The appeal has been brought with the backing of the Equality and Human Rights Commission and it has the additional support of the Secretary of State for Transport as an intervener.
+The parties
+Mr Christopher Stott is paralysed from the shoulders down and is a permanent wheel chair user.
+He has double incontinence and uses a catheter.
+When travelling by air, he depends on his wife to manage his incontinence since he cannot move round the aircraft.
+He also relies on her to help him to eat and to change his sitting position.
+Thomas Cook Tour Operators Ltd is a well known tour operator which provides overseas package holidays and flights to many destinations.
+It is an air carrier with an operating licence granted by a Member State of the EU and therefore subject to the obligations imposed on Community air carriers by the EC Disability Regulation.
+The facts
+I take the following summary of the facts from the judgment of the trial judge, Recorder Atherton, delivered on 19 January 2011 in the Manchester County Court: 4.
+On 12 September 2008 Mr Stott booked with the defendant to fly from East Midlands Airport to Zante, departing 22 September and returning 29 September 2008.
+Soon after making the booking on the internet he telephoned the defendant's helpline to advise that he had booked and paid to be seated next to his wife on both flights.
+He called the helpline again on 19 September and was assured that he and his wife would be seated together. 5.
+The outward flight went reasonably according to plan but sadly the return journey did not.
+Mr and Mrs Stott encountered many difficulties at the airport in Zante.
+At check in they were told they would not be seated together.
+In response to their protestations the supervisor eventually told them that their problem would be sorted out at the departure gate.
+When they arrived at the departure gate their expectations were unfulfilled.
+They were told that other passengers had already boarded and the seat allocations could not be changed. 6.
+When boarding the aircraft from an ambulift, matters got much worse.
+As he entered the aircraft, Mr Stott's wheelchair overturned and he fell to the cabin floor.
+Those present appeared not to know how to deal with the situation.
+Mr Stott felt extremely embarrassed, humiliated and angry and his wife, who had recently suffered serious ill health herself, was also very distressed at the chaotic scenes. 7.
+Eventually Mr Stott was assisted into his aisle seat in the front row and his wife was seated behind him.
+This arrangement caused them considerable difficulties in that it was difficult for Mrs Stott to assist her husband with his catheterisation, catheter bags, food and movement during the three hour twenty minute flight.
+The defendant's cabin crew apparently made no attempt to ease their difficulties.
+They made no requests of other passengers to enable Mr and Mrs Stott to sit together.
+From time to time during the flight she had to kneel or crouch in the aisle to attend to her husband's personal needs and inevitably she obstructed the cabin crew and other passengers as they made their way up and down the aisle.
+It was, therefore, a very unhappy experience for them.
+The claim 8.
+Mr Stott brought a claim under the UK Disability Regulations for a declaration that the respondents treatment of him was in breach of its duty under the EC Disability Regulation, in that it had failed to make all reasonable efforts to give his wife a seat next to him, together with damages including aggravated damages.
+The recorder made such a declaration, and there has been no appeal against it.
+He found that Mr Stott had suffered injury to his feelings, for which he said that he would have awarded 2,500 as compensation (taking into account the duration of the flight), if it had been open to him to do so.
+However, he concluded that he had no power to make such an award, by reason of the Montreal Convention.
+The Court of Appeal upheld the recorders decision in a judgment delivered by Maurice Kay LJ, with which Sullivan LJ and Dame Janet Smith agreed ([2012] EWCA Civ 66).
+Both courts expressed their sympathy for Mr Stott but they considered that the law was clear.
+UK Disability Regulations
+The UK Disability Regulations were made by the Secretary of State for Transport under section 2(2) of the European Communities Act 1972.
+As the explanatory note states, they provide for the enforcement of the rights set out in the EC Disability Regulation.
+The UK Disability Regulations are short.
+Regulation 3 makes it an offence for an air carrier, an agent of an air carrier or a tour operator to contravene an obligation imposed by any of a number of articles of the EC Disability Regulation, and regulation 4 provides penalties for such offences.
+In the present case the respondent has not been prosecuted, but on the recorders finding it was guilty of an offence carrying a potential fine not exceeding level 5 on the standard scale.
+The maximum level 5 fine on summary conviction is currently 5,000: Criminal Justice Act 1982, as amended, section 37.
+There will be no maximum limit when the Legal Aid, Sentencing and Punishment of Offenders Act 2012, section 85, comes into effect.
+Regulation 9 is headed Compensation claims by disabled persons etc.
+It provides: (1) A claim by a disabled person or a person with reduced mobility for an infringement of any of his rights under the EC Regulation may be made the subject of civil proceedings in the same way as any other claim in tort or (in Scotland) in reparation for breach of statutory duty. (2) For the avoidance of doubt, any damages awarded in respect of any infringement of the EC Regulation may include compensation for injury to feelings whether or not they include compensation under any other head. (3) Proceedings in England, Wales or Northern Ireland may be brought only in a county court. (4) Proceedings in Scotland may be brought only in a sheriff court. (5) The remedies available in such proceedings are those which are available in the High Court or (as the case may be) the Court of Session.
+EC Disability Regulation
+The general purpose of the EC Disability Regulation is apparent from the following paragraphs of the preamble: (1) The single market for air services should benefit citizens in general.
+Consequently, disabled persons and persons with reduced mobility, whether caused by disability, age or any other factor, should have opportunities for air travel comparable to those of other citizens.
+Disabled persons and persons with reduced mobility have the same right as all other citizens to free movement, freedom of choice and non discrimination.
+This applies to air travel as to other areas of life. (4) In order to give disabled persons and persons with reduced mobility opportunities for air travel comparable to those of other citizens, assistance to meet their particular needs should be provided at the airport as well as on board aircraft, by employing the necessary staff and equipment.
+In the interests of social inclusion, the persons concerned should receive this assistance without additional charge. (15) Member States should supervise and ensure compliance with this Regulation and designate an appropriate body to carry out enforcement tasks.
+This supervision does not affect the rights of disabled persons and persons with reduced mobility to seek legal redress from courts under national law. (18) Member States should lay down penalties applicable to infringements of this Regulation and ensure that those penalties are applied.
+The penalties, which could include ordering the payment of compensation to the person concerned, should be effective, proportionate and dissuasive.
+Article 1 provides: 1.
+This Regulation establishes rules for the protection of and provision of assistance to disabled persons and persons with reduced mobility travelling by air, both to protect them against discrimination and to ensure that they receive assistance. 2.
+The provisions of this Regulation shall apply to disabled persons and persons with reduced mobility, using or intending to use commercial passenger air services on departure from, on transit through, or on arrival at an airport, when the airport is situated in the territory of a Member State to which the Treaty applies.
+Article 7 provides: 1.
+When a disabled person or person with reduced mobility arrives at an airport for travel by air, the managing body of the airport shall be responsible for ensuring the provision of the assistance specified in Annex I in such a way that the person is able to take the flight for which he or she holds a reservation, provided that the notification of the person's particular needs for such assistance has been made to the air carrier or its agent or the tour operator concerned at least 48 hours before the published time of departure of the flight.
+This notification shall also cover a return flight, if the outward flight and the return flight have been contracted with the same air carrier. 2.
+Where use of a recognised assistance dog is required, this shall be accommodated provided that notification of the same is made to the air carrier or its agent or the tour operator in accordance with applicable national rules covering the carriage of assistance dogs on board aircraft, where such rules exist. 3.
+If no notification is made in accordance with paragraph 1, the managing body shall make all reasonable efforts to provide the assistance specified in Annex I in such a way that the person concerned is able to take the flight for which he or she holds a reservation. 4.
+The provisions of paragraph 1 shall apply on condition that: (a) the person presents himself or herself for check in: (i) at the time stipulated in advance and in writing (including by electronic means) by the air carrier or its agent or the tour operator, or (ii) if no time is stipulated, not later than one hour before the published departure time, or (b) the person arrives at a point within the airport boundary designated in accordance with article 5: (i) at the time stipulated in advance and in writing (including by electronic means) by the air carrier or its agent or the tour operator, or (ii) if no time is stipulated, not later than two hours before the published departure time.
+Article 10 provides: An air carrier shall provide the assistance specified in Annex II without additional charge to a disabled person or person with reduced mobility departing from, arriving at or transiting through an airport to which this Regulation applies provided that the person in question fulfils the conditions set out in article 7(1), (2) and (4).
+The assistance specified in Annex II includes: Where a disabled person or person with reduced mobility is assisted by an accompanying person, the air carrier will make all reasonable efforts to give such person a seat next to the disabled person or person with reduced mobility.
+This was the obligation which the respondent breached.
+Article 12 provides: Where wheelchairs or other mobility equipment or assistive devices are lost or damaged whilst being handled at the airport or transported on board aircraft, the passenger to whom the equipment belongs shall be compensated, in accordance with rules of international, Community and national law.
+Although article 12 is not applicable in the present case, since Mr Stotts wheelchair was not damaged, it has a broader relevance inasmuch as the reference to compensation in accordance with rules of international law clearly embraces the Montreal Convention.
+Articles 14 to 16 provide for three methods of enforcement.
+Article 14 provides for each Member State to designate an enforcement body or bodies.
+In the UK the designated body is the Civil Aviation Authority.
+Article 15 provides for the establishment of complaints procedures.
+Article 16 provides: The Member States shall lay down rules on penalties applicable to infringements of this Regulation and shall take all the measures necessary to ensure that those rules are implemented.
+The penalties provided for must be effective, proportionate and dissuasive.
+The Member States shall notify those provisions to the Commission and shall notify it without delay of any subsequent amendment affecting them.
+Montreal Convention
+The full title of the Montreal Convention is the Convention for the Unification of Certain Rules for International Carriage by Air.
+It was agreed at Montreal on 28 May 1999.
+The EU is a signatory.
+The predecessor of the Montreal Convention was signed at Warsaw on 12 October 1929 (the Warsaw Convention).
+It was amended in 1955 at the Hague, but the amended Convention continued to be known by its original name.
+The Montreal Convention replaced the Warsaw Convention but followed its general structure.
+Its purpose according to the preamble was to modernize and consolidate the Warsaw Convention and related instruments.
+There is no material difference in their scope of application, as defined in each case in article 1.
+Each begins by stating that the Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward.
+Chapter III of the Warsaw Convention was headed Liability of the carrier.
+The heading of the same chapter in the Montreal Convention has the additional words and extent of compensation for damage.
+In chapter III of the Warsaw Convention, article 17 dealt with liability for death or injury to passengers as a result of an accident sustained on board the aircraft or in the course of embarkation or disembarkation, and article 18 dealt with liability for damage to or loss of any registered luggage or goods.
+In chapter III of the Montreal Convention liability for death or bodily injury is dealt with in article 17.1 in materially identical terms to article 17 of the Warsaw Convention.
+Loss of or damage to a passengers baggage is dealt with in article 17.2 to 17.4, and loss of or damage to cargo are dealt with in article 18, but the differences are matters of detail.
+There are also broadly parallel provisions for liability for damage occasioned by delay in the carriage of passengers, baggage or cargo.
+Two features of the Conventions are of critical relevance.
+First, there are limits to the type of injury or damage which is compensable and the amount of compensation recoverable.
+Bodily injury (or lsion corporelle) has been held not to include mental injury, such as post traumatic stress disorder or depression (Morris v KLM Royal Dutch Airlines [2002] UKHL 7; [2002] 2 AC 628).
+The same would apply to injury to feelings.
+Secondly, there is an exclusivity provision.
+The exclusivity provision in the Warsaw Convention was contained in article 24: 1.
+In the cases covered by articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention. 2.
+In the cases covered by article 17 the provisions of the preceding paragraph also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights.
+The effect of this provision was considered by the House of Lords in Sidhu v British Airways plc [1997] AC 430, to which I will refer in more detail.
+29: In the Montreal Convention the exclusivity provision is contained in article In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights.
+In any such action, punitive, exemplary or any other non compensatory damages shall not be recoverable.
+The effect is the same as that of article 24 of the Warsaw Convention, except for the addition of the sentence specifically excluding punitive, exemplary or other non compensatory damages.
+Article 29 is the rock on which Mr Stotts claim for damages foundered.
+Montreal Regulation
+The Montreal Convention has effect in the UK by different routes depending on whether the carrier is a Community air carrier.
+Generally the Montreal Convention has force in the UK by virtue of section 1 of the Carriage by Air Act 1961 as amended, but not in relation to Community air carriers to the extent that the Montreal Regulation has force in the UK: section 1(2) of the 1961 Act.
+The Montreal Regulation has direct effect in the UK by virtue of section 2 of the European Communities Act 1972.
+The Montreal Regulation followed the conclusion of the Montreal Convention.
+Its purpose, as stated in an explanatory memorandum issued by the Commission, was to ensure full alignment between the Montreal Convention and community law.
+To that end, article 3.1 states: The liability of a Community air carrier in respect of passengers and their baggage shall be governed by all provisions of the Montreal Convention relevant to such liability.
+The Montreal Convention therefore has effect in the UK in relation to Community air carriers through that article.
+The exclusivity principle
+In Sidhu the House of Lords considered the question whether a passenger who sustained damage in the course of international carriage by air due to the fault of the carrier, but had no claim against the carrier under article 17 of the Warsaw Convention, was left without a remedy.
+It concluded that this was so.
+Lord Hope gave the only speech.
+He analysed the history, structure and text of the Convention, and he reviewed the domestic and international case law.
+He explained that the Convention was a package.
+It gave to passengers significant rights, easily enforceable, but it imposed limitations.
+He held that the whole purpose of article 17, read in its context, was to prescribe the circumstances that is to say, the only circumstances in which a carrier would be liable to the passenger for claims arising out of his international carriage by air.
+To permit exceptions, whereby the passenger could sue outside the Convention for losses sustained in the course of international carriage by air, would distort the whole system, even in cases for which the Convention did not create any liability on the part of the carrier.
+This interpretation has been accepted and applied in many other jurisdictions.
+In the USA the leading authority is the decision of the Supreme Court in El Al Israel Airlines Ltd v Tseng 525 US 155 (1999).
+The plaintiff was subjected to an intrusive security search at John F Kennedy International Airport in New York before she boarded a flight to Tel Aviv.
+She sued the airline under New York tort law for damages for psychosomatic injury.
+The Supreme Court had previously held in Eastern Airlines Inc v Floyd 499 US 530 (1991) that mental or psychic injuries unaccompanied by physical injuries were not compensable under article 17, but the plaintiff argued that her claim in respect of the treatment which she suffered before embarkation was not within the reach of the preemptive effect of the Convention.
+The Court of Appeals for the Second Circuit accepted that argument.
+In its judgment it expressed the fear that if the Convention had the preclusive effect for which the airline contended, it would follow, for example, that a passenger injured by a malfunctioning escalator in the airlines terminal would have no remedy against the airline even if it had recklessly disregarded its duty to maintain the escalator in proper repair.
+The Supreme Court reversed the decision of the Court of Appeals in an opinion delivered by Justice Ginsburg (Justice Stevens dissenting).
+Applying the principle that an international treaty must be interpreted not as if it were a domestic instrument, but so as to accord with the courts understanding of the shared expectations of the contracting parties, Justice Ginsburg referred to the French text of article 24 of the Warsaw Convention (the earlier equivalent of article 29 of the Montreal Convention): (1) Dans les cas prevus aux articles 18 et 19 toute action en responsabilite, a quelque titre que ce soit, ne peut etre exercee que dans les conditions et limites prevues par la presente Convention. (2) Dans les cas prevus a l'article 17, s'appliquent egalement les dispositions de l'alinea precedent, sans prejudice de la determination des personnes qui ont le droit d'agir et de leurs droits respectifs.
+Tseng argued that les cas prevus a larticle 17 meant those cases in which a passenger could actually maintain a case for relief under article 17.
+El Al argued, with the support of the US government as amicus curiae, that the expression referred generically to all personal injury cases stemming from occurrences on board an aircraft or in embarking or disembarking.
+So read, article 24 would preclude a passenger from asserting any air transit personal injury claims under local law, including claims that failed to satisfy article 17s liability conditions (perhaps because the injury did not result from an accident or because the accident did not result in physical injury or manifestation of injury).
+The court judged that the governments interpretation of article 24 was more faithful to the Conventions text, purpose and overall structure.
+Its reasoning process accorded with that of the House of Lords in Sidhu, to which Justice Ginsburg referred, at pp 175 176: Decisions of the courts of other Convention signatories corroborate our understanding of the Convention's preemptive effect.
+In Sidhu, the British House of Lords considered and decided the very question we now face concerning the Convention's exclusivity when a passenger alleges psychological damages, but no physical injury, resulting from an occurrence that is not an accident under Article 17.
+See [[1997] AC 430, 441, 447].
+Reviewing the text, structure, and drafting history of the Convention, the Lords concluded that the Convention was designed to ensure that, in all questions relating to the carrier's liability, it is the provisions of the Convention which apply and that the passenger does not have access to any other remedies, whether under the common law or otherwise, which may be available within the particular country where he chooses to raise his action. Ibid.
+Courts of other nations bound by the Convention have also recognized the treaty's encompassing preemptive effect.
+The opinions of our sister signatories, we have observed, are entitled to considerable weight. [Air France v] Saks, 470 US at 404 (internal quotation marks omitted).
+The text, drafting history, and underlying purpose of the Convention, in sum, counsel us to adhere to a view of the treaty's exclusivity shared by our treaty partners.
+The court put to rest the Court of Appeals fear that such a conclusion would mean that a passenger who had an accident in the terminal building through the negligence of the person responsible for its maintenance might be left without a remedy.
+Justice Ginsburg observed that the Conventions preemptive effect on local law extended no further than the Conventions own substantive scope, and that a carrier would be indisputably subject to liability under local law for injuries arising outside that scope, for example, for passenger injuries occurring before the operation of embarking.
+In King v American Airlines Inc 284 F 3d 352 (2002) the Court of Appeals for the Second Circuit considered the question whether discrimination claims could properly be regarded as generically outside the Conventions substantive scope, so that a claim for compensation under local law would not be affected by the Convention.
+The assumed facts were that the plaintiffs were bumped from an overbooked flight because of their race.
+Upholding an order for the dismissal of the claim, the court held that discrimination claims under local law which arose in the course of embarking on an aircraft were preempted by the Convention.
+The argument advanced unsuccessfully by the plaintiffs was that discrimination claims fell outside the scope of the Convention because of their qualitative nature.
+Sotomayor CJ (now Justice Sotomayor of the US Supreme Court), delivering the opinion of the court, emphasised that the preemptive scope of the Convention depends not on the qualitative nature of the act or omission giving rise to the claim but on when and where the salient event took place: Article 17 directs us to consider when and where an event takes place in evaluating whether a claim for an injury to a passenger is preempted.
+Expanding upon the hypothetical posed by the Tseng Court, a passenger injured on an escalator at the entrance to the airport terminal would fall outside the scope of the Convention, while a passenger who suffers identical injuries on an escalator while embarking or disembarking a plane would be subject to the Convention's limitations.
+Tseng, 525 US at 171.
+It is evident that these injuries are not qualitatively different simply because they have been suffered while embarking an aircraft, and yet article 17 plainly distinguishes between these two situations.' [Original emphasis] The aim of the Warsaw Convention is to provide a single rule of carrier liability for all injuries suffered in the course of the international carriage of passengers and baggage.
+As Tseng makes clear, the scope of the Convention is not dependent on the legal theory pled nor on the nature of the harm suffered.
+See Tseng, 525 US at 171 (rejecting a construction of the Convention that would look to the type of harm suffered, because it would encourage artful pleading by plaintiffs seeking to opt out of the Convention's liability scheme when local law promised recovery in excess of that prescribed by the treaty); Cruz v Am Airlines, 338 US App DC 246, 193 F3d 526, 531 (DC Cir 1999) (determining that fraud claim was preempted by Article 18, because the events that gave rise to the action were so closely related to the loss of [plaintiffs'] luggage . as to be, in a sense, indistinguishable from it).
+The judge noted that in a number of cases US District Courts had addressed the issue whether discrimination claims were preempted by the Convention and had all reached a similar view.
+She concluded her judgment with some broader observations which have a resonance in the present case: Plaintiffs raise the specter that our decision will open the doors to blatant discrimination aboard international flights, invoking images of airline passengers segregated according to race and without legal recourse.
+They suggest that, despite Article 24's plain mandate that the Warsaw Convention preempts any cause of action, however founded, we should nonetheless carve out an exception for civil rights actions as a matter of policy.
+This we decline to do.
+It is our responsibility to give the specific words of the treaty a meaning consistent with the shared expectations of the contracting parties.
+Saks, 470 US at 399.
+It is not for the courts to rewrite the terms of a treaty between sovereign nations.
+Cf Turturro, 128 F Supp 2d at 181 (The Convention massively curtails damage awards for victims of horrible acts [of] terrorism; the fact that the Convention also abridges recovery for . discrimination should not surprise anyone.).
+Moreover, while private suits are an important vehicle for enforcing the anti discrimination laws, they are hardly the only means of preventing discrimination on board aircraft.
+Federal law provides other remedies.
+Responsibility for oversight of the airline industry has been entrusted to the Secretary of Transportation.
+The Kings could, therefore, have filed a complaint with the Secretary. 49 USC 46101.
+The FAA prohibits air carriers, including foreign air carriers, from subjecting a person to unreasonable discrimination.
+Id 41310(a).
+The Secretary has the authority to address violations of FAA provisions, including the power to file civil actions to enforce federal law.
+Id 46106.
+It does not follow from the preemption of the Kings' private cause of action that air carriers will have free rein to discriminate against passengers during the course of an international flight.
+Sidhu and Tseng have been followed by the Federal Court of Australia in South Pacific Air Motive Pty Ltd v Magnus 157 ALR 443 (1998), the Court of Appeal of Hong Kong in Ong v Malaysian Airline System Berhad [2008] HKCA 88, the Federal Court of Appeal of Canada in Air Canada v Thibodeau [2012] FCA 246 and the High Court of Ireland in Hennessey v Aer Lingus Ltd [2012] IEHC 124.
+Sidhu was similarly followed by the Court of Appeal of New Zealand in Emery Air Freight Corpn v Nerine Nurseries Ltd [1997] 3 NZLR 723.
+The same principle has been recognised by the Supreme Court of Germany (Bundesgerichtshof), 15 March 2011, Urteil Az X ZR 99/10.
+The arguments
+Mr Robin Allen QC submitted that since the Montreal Convention has effect within the EU via the Montreal Regulation, it is a question of European law whether the courts below were right to hold that Mr Stotts claim for damages for breach of the UK Disability Regulations was incompatible with the Convention.
+He submitted that Mr Stotts claim is unaffected by the Montreal Regulation because its subject matter was outside both the substantive scope and the temporal scope of the Regulation.
+The argument on the first point was summarised succinctly in the appellants written case as follows: Applying the Vienna Convention, the [Montreal Convention] is not in any sense concerned with giving access to air travel to disabled persons.
+Rights conferred in order to ensure equal access to air travel for disabled people (and remedies granted for breach of those rights) are simply not to use Lord Hopes language in Sidhu areas with which [the Convention] deals.
+For this reason, it is submitted that it would be a mistake to use the MC to limit the rights and obligations that Union legislation imposes in relation to such access.
+The argument on the second point was based on the recorders finding that the airlines failure to make all reasonable efforts to seat Mr Stott next to his wife began prior to embarkation.
+In support of his argument Mr Allen relied on a number of European authorities.
+He accepted that none of them was conclusive in relation to the present case, but he submitted that the court ought to refer the following questions to the Court of Justice of the European Union (CJEU): (a) Whether the right to compensation for breach of duties to take reasonable steps to assist disabled persons in the context of air travel (which the Union legislator specifically contemplated in the EC Disability Regulation), like the rights to compensation conferred by Regulation 261/2004, should be regarded as falling within a different regulatory framework from, or as complementary to, the MC (rather than in conflict with it); (b) Whether compensation awarded in respect of breaches of the duties imposed by the EC Disability Regulation both on board the aircraft and earlier, like compensation for delay awarded under Regulation 261/2004, simply operates at an earlier stage than the system which results from the Montreal Convention; (c) Whether a member state which confers a right to compensation under its domestic law for failures by the providers of goods and services to take reasonable steps to accommodate the needs of disabled persons is obliged by the principles of equivalence and/or effectiveness, when implementing the EC Disability Regulation, to provide a similarly favourable remedy for similar failures in the context of air travel amounting to breaches of that Regulation; (d) How that obligation to provide an effective remedy for breaches of the EC Disability Regulation is to be reconciled with the exclusivity principle contained in the MC in circumstances where:(a) the remedy is provided to give effect to the right to equal access to air travel, which is itself derived from the fundamental anti discrimination rights conferred by the Charter and (b) the MC was never intended to, and does not, deal with the question of access to air travel.
+Mr Allen submitted that these questions are important and unresolved.
+The answers to them are not so obvious as to leave no scope for any reasonable doubt.
+Article 267 therefore requires a reference from this court, as the UKs final court of appeal, to the CJEU.
+Mr Daniel Beard QC, on behalf of the Secretary of State, concentrated on the temporal argument.
+He submitted that on the recorders findings of fact, liability for breach of the UK Disability Regulations arose prior to embarkation, and therefore it was plain that Mr Stotts claim was not preempted by the Montreal Convention.
+In his submission, there was no need for a reference to the CJEU and the appeal should be allowed.
+Mr John Kimbell, on behalf of the respondent, pointed out that the particulars of injury to feelings pleaded in Mr Stotts particulars of claim related to his treatment during the process of embarkation and during the flight, which made him feel humiliated and for which he claimed damages.
+It was for such injury to his feelings, occasioned during the embarkation and flight, that the recorder assessed the appropriate monetary compensation, subject to the question whether it was permissible.
+Mr Kimbell submitted that this was the gravamen of the claim, and that it fell within the temporal scope of the Montreal Convention.
+The claim for damages for such injury to feelings under the UK Disability Regulations was therefore preempted by article 29 of the Montreal Convention, as that article (or rather its predecessor) had been interpreted in Sidhu.
+He observed that the court was not being asked to reconsider the correctness of the decision in Sidhu, which has moreover received uniform international support.
+He submitted that the legal basis of Mr Stotts claim for damages under domestic law was irrelevant (as properly recognised, for example, in King v American Airlines).
+All that mattered was that it was a claim for damages referable to the treatment of Mr Stott in the course of his international carriage by air.
+Accordingly, he submitted that on the established authorities the decision of the Court of Appeal upholding the recorder was plainly right, and there was no cause for a reference to the CJEU.
+European case law
+Mr Allen relied on a line of cases in which the CJEU has considered the compatibility of the Montreal Regulation with the provisions of another EU Regulation, No 261/2004, requiring compensation and assistance to passengers in the event of denial of boarding, cancellation or long delays of flights.
+Article 5 concerns cancellation.
+Article 6 concerns delay.
+Each requires the passengers to be offered various forms of assistance, such as hotel accommodation where necessary, and to be paid compensation in accordance with article 7.
+The compensation payable under article 7 is at a standard rate (which varies according to the length of the flight), regardless of the personal circumstances of the passengers and the amount of any actual loss suffered by them individually.
+The most recent decision is that of the Grand Chamber in Nelson v Deutsche Lufthansa AG (Joined Cases C 581/10 and C 629/10), [2013] 1 CMLR 1191.
+Reiterating the courts reasoning in earlier cases beginning with R (IATA and ELFAA) v Department of Transport (Case C 344/04)[2006] ECR I 403, the court held that the scheme established by Regulation 261/2004 for standardised redress was a form of protection supplementary to, and not incompatible with, the Montreal Convention because it did not affect the right of a passenger to bring a claim for compensation for individual damage suffered by him or the limitations imposed by the Convention on the right to redress on an individual basis.
+Analysis
+It is convenient to begin by clearing the ground.
+There is no dispute about the meaning of the EC Disability Regulation or its compatibility with the Montreal Convention, to which the EU is a party and which is incorporated into the Montreal Regulation.
+The EC Disability Regulation imposes obligations on air carriers and others who operate in the air services market to provide equal access to such services for disabled persons and others with reduced mobility for any reason.
+It leaves enforcement to the Member States.
+It requires Member States to lay down rules on penalties for infringement but it does not require such penalties to include financial compensation.
+There is similarly no dispute about the meaning of the UK Disability Regulations or their compatibility with the Montreal Convention.
+If the airline is right in its contention that Mr Stotts claim for damages is precluded by article 29 of the Montreal Convention, it follows that the wording of regulation 9(2) is misleading, because it states (supposedly for the avoidance of doubt) that any damages awarded in respect of any infringement of the EC Regulation may include compensation for injury to feelings.
+It has rightly not been argued that regulation 9(2) should be read as purporting to create a power to award such damages, if it would be inconsistent with article 29, for that would be ultra vires.
+The effect of regulation 9 is to make it clear that the Regulations are capable of giving rise to an action for breach of statutory duty, for which damages are unrestricted by the Regulation, but it does not (and could not) remove any limitation resulting from the Montreal Convention.
+The European case law does not assist Mr Stott.
+The question in the cases about Regulation (EC) 261/2004 was whether the scheme of standardised remedial measures was compatible with the Montreal Convention.
+The court recognised that any claim for damages on an individual basis would be subject to the limits of the Convention (IATA para 42).
+Mr Stotts claim is for damages on an individual basis.
+To summarise, this case is not about the interpretation or application of a European regulation, and it does not in truth involve a question of European law, notwithstanding that the Montreal Convention has effect through the Montreal Regulation.
+The question at issue is whether the claim is outside the substantive scope and/or temporal scope of the Montreal Convention, and that depends entirely on the proper interpretation of the scope of that Convention.
+The governing principles are those of the Vienna Convention on the Law of Treaties.
+If the issue concerned the compatibility of the Regulation with the Convention (as in Nelson) it would indeed involve a question of European law, but no such question arises and there is no basis for supposing that the Montreal Convention should be given a different European meaning from its meaning as an international convention.
+On the contrary, it was the acknowledged purpose of the Regulation to ensure full alignment between the Convention as an international instrument and community law.
+The temporal question can be answered by reference to the facts pleaded and found.
+The claim was for damages for the humiliation and distress which Mr Stott suffered in the course of embarkation and flight, as pleaded in his particulars of claim and set out in paras 6 to 8 of the recorders judgment.
+The particulars of injury to Mr Stotts feelings and the particulars of aggravated damages related exclusively to events on the aircraft.
+In the course of argument it was suggested that Mr Stott had a complete cause of action before boarding the aircraft based on his poor treatment prior to that stage.
+If so, it would of course follow that such a pre existing claim would not be barred by the Montreal Convention, but that was not the claim advanced.
+Mr Stotts subjection to humiliating and disgraceful maltreatment which formed the gravamen of his claim was squarely within the temporal scope of the Montreal Convention.
+It is no answer to the application of the Convention that the operative causes began prior to embarkation.
+To hold otherwise would encourage deft pleading in order to circumvent the purpose of the Convention.
+Many if not most accidents or mishaps on an aircraft are capable of being traced back to earlier operative causes and it would distort the broad purpose of the Convention explained by Lord Hope in Sidhu to hold that it does not apply to an accident or occurrence in the course of international carriage by air if its cause can be traced back to an antecedent fault.
+Should a claim for damages for ill treatment in breach of equality laws as a general class, or, more specifically, should a claim for damages for failure to provide properly for the needs of a disabled passenger, be regarded as outside the substantive scope of the Convention? As to the general question, my answer is no for the reasons given by Sotomayor CJ in King v American Airlines.
+I agree with her analysis that what matters is not the quality of the cause of action but the time and place of the accident or mishap.
+The Convention is intended to deal comprehensively with the carriers liability for whatever may physically happen to passengers between embarkation and disembarkation.
+The answer to that general question also covers the more specific question.
+Mr Allen submitted that the consequences were unfair, because if Mr Stott and his wife had not been misled at the check in desk into believing that their seating problem would be sorted out at the departure gate, they would never have proceeded and they would have been able to recover damages for their loss.
+The complaint is just, but that is not a sufficient reason to reinterpret the Convention.
+The underlying problem is that the Warsaw Convention long pre dated equality laws which are common today.
+There is much to be said for the argument that it is time for the Montreal Convention to be amended to take account of the development of equality rights, whether in relation to race (as in King v American Airlines) or in relation to access for the disabled, but any amendment would be a matter for the contracting parties.
+It seems unfair that a person who suffers ill treatment of the kind suffered by Mr Stott should be denied any compensation.
+Under the law as it stands, a declaration that the carrier was in breach of the UK Regulations is likely to be small comfort to a passenger who has had Mr Stotts experience, but I draw attention, as did Sotomayor CJ at the end of her opinion in King v American Airlines, to the fact that there are other possible means of enforcement.
+It is for the Civil Aviation Authority to decide what other methods of enforcement should be used, including possible criminal proceedings.
+Conclusion
+The embarrassment and humiliation which Mr Stott suffered were exactly what the EC and UK Disability Regulations were intended to prevent.
+I share the regret of the lower courts that damages are not available as recompense for his ill treatment and echo their sympathy for him, but I agree with the reasoning of their judgments and would dismiss this appeal.
+I would not make a reference to the CJEU for two reasons.
+As I have explained, I do not consider that the questions of interpretation of the Montreal Convention on which the appeal turns are properly to be regarded as questions of European law merely because the Convention takes effect via the Montreal Regulation.
+Secondly and in any event, I consider the answer to be plain.
+LADY HALE
+Mr and Mrs Stott have both been treated disgracefully by Thomas Cook and it is hardly less disgraceful that, for the reasons given by Lord Toulson, the law gives them no redress against the airline.
+The apparently adamant exclusion, in article 29 of the Montreal Convention, of any liability for damages other than that specifically provided for in the Convention, while perhaps unsurprising in a trade treaty, is more surprising when the fundamental rights of individuals are involved.
+Some treaties make express exception for anything which conflicts with the fundamental rights protected within a member state, but the Montreal Convention does not.
+Whatever may be the case for private carriers, can it really be the case that a State airline is absolved from any liability in damages for violating the fundamental human rights of the passengers it carries?
+The most obvious example is an airline which requires black or female passengers to sit at the back of the plane while white or male passengers sit at the front (and thus nearer to the exit).
+This would be unconstitutional in most civilised countries.
+Indeed, there is a respectable argument that race (but not sex) discrimination is not only contrary to customary international law, as well as to many international human rights instruments, but also contravenes a peremptory norm of international law which is binding on all states (see R (European Roma Rights Centre) v Immigration Officer at Prague Airport (United Nations High Comr for Refugees intervening) [2004] UKHL 55, [2005] 2 AC 1, per Lord Steyn at para 46).
+If it were, then any treaty conflicting with that norm at the time of its conclusion would be void, at least to that extent, by virtue of article 53 of the Vienna Convention on the Law of Treaties; and if a new peremptory norm of international law emerges, then any existing treaty which is in conflict with that norm becomes void and terminates, at least to that extent, by virtue of article 64 of the Vienna Convention.
+More important still, it might be thought, is the prohibition of torture.
+This is indeed a peremptory norm.
+There is a respectable case to be made that what happened to Mr Stott on board the plane amounted to inhuman or degrading treatment within the meaning of article 3 of the European Convention on Human Rights (see, for example, the case of Price v United Kingdom (2002) 34 EHRR 1285, concerning the conditions in which a severely disabled woman was held in police custody).
+It seems extraordinary that a State should be able to subject a passenger to such treatment with impunity.
+However, it may well be that the prohibition of cruel, inhuman and degrading treatment has not yet reached the status of a peremptory norm in general international law, even though torture in the narrower sense defined in the Torture Convention of 1984 has done so.
+None of this was ventilated before us, no doubt for the good reason that Thomas Cook is not a State airline.
+The extent to which international law imposes positive obligations upon States to protect individuals against violations of their fundamental rights by non state actors is controversial.
+There may or may not be something in the issues I have raised.
+But the question of whether there are indeed any limits to the apparently adamant exclusion in article 29 of the Montreal Convention may well require ventilation in another case or another place.
+At the very least, as Lord Toulson says, the unfairness of the present position ought to be addressed by the parties to the Convention.
+Small comfort though it may be to them, both Mr and Mrs Stott, with the support not only of the Equality and Human Rights Commission but also of the responsible department of the United Kingdom government, have done us all a service by exposing a grave injustice to which the international community should now be turning its attention.
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+This is an appeal brought by Mohammed Gul against a decision of the Court of Appeal (Criminal Division) dismissing an appeal against his conviction for dissemination of terrorist publications contrary to section 2 of the Terrorism Act 2006 (the 2006 Act), for which he was sentenced to a term of five years imprisonment (a sentence against which he also unsuccessfully appealed).
+The appeal raises the issue of the meaning of terrorism in section 1 of the Terrorism Act 2000 (the 2000 Act).
+The factual and procedural background
+The appellant was born in Libya in February 1988, but he has lived much of his life in this country and he is a British citizen.
+In February 2009, as a result of executing a search warrant at his house, police officers found videos on his computer uploaded onto various websites, including the YouTube website.
+These videos included ones that showed (i) attacks by members of Al Qaeda, the Taliban, and other proscribed groups on military targets in Chechnya, and on the Coalition forces in Iraq and in Afghanistan, (ii) the use of improvised explosive devices (IEDs) against Coalition forces, (iii) excerpts from martyrdom videos, and (iv) clips of attacks on civilians, including the 9/11 attack on New York.
+These videos were accompanied by commentaries praising the bravery, and martyrdom, of those carrying out the attacks, and encouraging others to emulate them.
+The case for the prosecution was that each of these videos constituted a terrorist publication within section 2(3), which the appellant had distribute[d] or circulate[d] within section 2(2)(a), and consequently he had committed an offence by virtue of section 2(1), of the 2006 Act.
+The appellants principal defence was that, although he did not agree with the targeting of and attacks on civilians, he believed that the use of force shown in the other videos was justified as it was being employed in self defence by people resisting the invasion of their country.
+At his first trial, the jury acquitted the appellant on four counts and was unable to agree on two other counts.
+A retrial in relation to those two counts (plus a further four counts added by the Crown by way of a voluntary bill) took place in front of HH Judge Paget QC with a jury at the Central Criminal Court.
+After the evidence, speeches and summing up, the jury retired to consider their verdict in the normal way on 22 February 2011.
+They then asked the judge for guidance on certain questions relating to the meaning of terrorism, which, after hearing submissions from counsel, he answered.
+One of the jurys questions was: Re: definition of terrorism in [section 1 of the 2000 Act], would the use of force by Coalition forces be classed as terrorism? In relation to that question, the judge gave the following direction: the use of force by Coalition forces is not terrorism.
+They do enjoy combat immunity, they are ordered there by our government and the American government, unless they commit crimes such as torture or war crimes .
+Later the same day, the jury asked a further question, which was in these terms: Please confirm that within Iraq/Afghanistan now there are governments in place there cannot now be said to be a conflict and therefore no combatant exemption from what would otherwise be a terrorist attack, ie IED on Coalition Forces.
+To simplify, would an IED attack (ignoring self defence) on Coalition Forces be a terrorist attack if carried out in 2008/9? The judge answered this question, after hearing submissions from counsel, in these terms: I have to apply the Terrorism Act and the definition of terrorism which is part of English law, and the answer is yes, it would.
+But it is ultimately for you to say.
+The jury then proceeded to convict the appellant on five of the six counts.
+The count on which he was acquitted related to a video which contained footage concerning the Israeli Palestinian conflict in Gaza.
+The judge directed the jury that, if Israel was involved in an incursion into Gaza which involved attacks on civilians, schools, hospitals and ambulances, and all that the appellant was encouraging was resistance to these attacks, the prosecution did not seek a conviction.
+The present appeal proceeded without considering whether, as a matter of law, the stance adopted by the prosecution was correct, and we do not propose to address it further.
+The judge sentenced the appellant to five years imprisonment, with appropriate allowance for time spent on remand.
+The appellant sought to appeal against his conviction on a number of grounds, only one of which is relevant for present purposes.
+That ground, which was expressed in various ways during the course of his appeal, is ultimately embodied in the question which the Court of Appeal certified to be a point of general public importance, namely: Does the definition of terrorism in section 1 of the Terrorism Act 2000 operate so as to include within its scope any or all military attacks by a non state armed group against any or all state or inter governmental organisation armed forces in the context of a non international armed conflict?
+The Court of Appeal (Sir John Thomas P, Silber and Kenneth Parker JJ) answered that question in the affirmative, and also rejected certain other grounds of appeal, as well as refusing to interfere with the sentence which the judge had imposed.
+Accordingly, the appellants appeal was dismissed [2012] EWCA Crim 280, [2012] 1 WLR 3432.
+The appellant now appeals to this court contending that the answer to the certified question should be in the negative.
+The Terrorism Acts 2000 and 2006
+The 2000 Act
+Section 1 of the 2000 Act is headed Terrorism: Interpretation, and, as amended by the 2006 Act and the Counter Terrorism Act 2008, it provides as follows: (1) In this Act terrorism means the use or threat of action where (a) the action falls within subsection (2), (b) the use or threat is designed to influence the international governmental government or an organisation or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause. (2) Action falls within this subsection if it (a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a persons life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system. (4) In this section (a) action includes action outside the United Kingdom, (b) a reference to any person or to property is a reference to any person, or to property, wherever situated, (c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and (d) the government means the government of the United Kingdom, of a part of the United Kingdom or of a country other than the United Kingdom. (5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.
+Part II of the 2000 Act is concerned with proscribed organisations and Part III with terrorist property.
+Part III creates certain offences, such as (in sections 15 18) terrorist fundraising, using money and money laundering for terrorist purposes.
+It also imposes certain duties, such as a duty of disclosure in some circumstances, a duty not to tip off, and a duty to cooperate with the police and certain government agencies, such as the Serious Organised Crime Agency.
+It also granted certain powers to the police and such agencies, such as the right to detain, seize, and forfeit terrorist cash.
+Parts IV and V of the 2000 Act are respectively concerned with terrorist investigations and counter terrorist powers.
+Part V confers powers to stop and search (sections 44 47), to search individuals and premises (sections 42 43), and to arrest without warrant (section 41), and section 53 and Schedule 7 grant very wide powers to detain, interrogate, and confiscate in relation to people at ports and borders.
+Part VI of the 2000 Act is entitled Miscellaneous, and it creates a number of offences related to terrorism including weapons training in connection with terrorism (section 54), directing terrorist organisations (section 56), possession for terrorist purposes (section 57), collecting information for such purposes (section 58), and inciting terrorism abroad (section 59).
+Included in Part VI are sections 62 64.
+Section 62(1) provides that: If (a) a person does anything outside the United Kingdom as an act of terrorism or for the purposes of terrorism, and (b) his action would have constituted the commission of one of the offences listed in subsection (2) if it had been done in the United Kingdom, he shall be guilty of the offence.
+Subsection (2) states that the offences referred to in subsection (1) are offences under the Explosive Substances Act 1883, the Biological Weapons Act 1974, and the Chemical Weapons Act 1996.
+Section 63 of the 2000 Act renders it an offence for a person to conduct an activity outside the UK which would be an offence under sections 15 18 if carried out in the UK.
+Section 64 makes amendments to the Extradition Act 1989.
+Also in Part VI of the 2000 Act are sections 63A 63E, which were inserted by the Crime (International Co operation) Act 2003 (the 2003 Act).
+Section 63A provides that a UK national or UK resident commits an offence if he carries out abroad any activity which, if carried out in the UK would be an offence under, inter alia, sections 54 59.
+Sections 63B 63D, in very summary terms, provide that a person commits an offence when he carries out abroad certain specified actions which, if carried out in the UK, would amount to terrorism.
+Part VII of the 2000 Act is concerned with Northern Ireland.
+Part VIII is entitled General, and it includes, in sections 114 116, certain police powers in connection with counter terrorism, including the power to stop and search.
+Also in Part VIII is section 117, which, according to subsection (1), applies to almost all offences created by the 2000 Act; those offences to which it does not apply have no relevance for present purposes.
+Subsections (2) and (2A) of section 117 (the latter subsection having been added by the 2006 Act) are in these terms: (2) Proceedings for an offence to which this section applies (a) shall not be instituted in England and Wales without the consent of the Director of Public Prosecutions, and (b) shall not be instituted in Northern Ireland without the consent of the Director of Public Prosecutions for Northern Ireland. (2A) But if it appears to the Director of Public Prosecutions or the Director of Public Prosecutions for Northern Ireland that an offence to which this section applies has been committed outside the United Kingdom or for a purpose wholly or partly connected with the affairs of a country other than the United Kingdom, his consent for the purposes of this section may be given only with the permission (a) in the case of the Director of Public Prosecutions, of the Attorney General; and (b) in the case of the Director of Public Prosecutions for Northern Ireland, of the Advocate General for Northern Ireland.
+The 2006 Act
+The 2006 Act made some amendments to the 2000 Act, including the addition of or an international governmental organisation (an IGO) into section 1(1)(b).
+Part 1 of the 2006 Act creates certain further offences in relation to terrorism; in particular, sections 1 and 2 respectively created the new offences of Encouragement of terrorism and Dissemination of terrorist publications.
+Section 2 of the 2006 Act is in these terms: (1) A person commits an offence if he engages in conduct falling within subsection (2) and, at the time he does so (a) he intends an effect of his conduct to be a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism; . or (c) he is reckless as to whether his conduct has an effect mentioned in paragraph (a) . (2) For the purposes of this section a person engages in conduct falling within this subsection if he (a) distributes or circulates a terrorist publication; . (e) transmits the contents of such a publication electronically; . (3) For the purposes of this section a publication is a terrorist publication, in relation to conduct falling within subsection (2), if matter contained in it is likely (a) to be understood, by some or all of the persons to whom it is or may become available as a consequence of that conduct, as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism; . (4) For the purposes of this section matter that is likely to be understood by a person as indirectly encouraging the commission or preparation of acts of terrorism includes any matter which (a) glorifies the commission or preparation (whether in the past, in the future or generally) of such acts; . [Subsections (5), (6), (7) and (8) amplify the preceding subsections; subsections (9) and (10) identify certain defences]. (11) A person guilty of an offence under this section shall be liable (a) on conviction on indictment, to imprisonment for a term not exceeding 7 years or to a fine, or to both; (13) In this section . publication means an article or record of any description that contains any of the following, or any combination of them (a) matter to be read; (b) matter to be listened to; (c) matter to be looked at or watched.
+Part 2 of the 2006 Act contains certain miscellaneous provisions, including the extension and modification of some of the powers granted by the 2000 Act, such as in relation to proscription, searches and investigations.
+Part 3 of the 2006 Act includes some supplementary provisions of which section 36 is significant for present purposes.
+That section is headed Review of terrorism legislation, and it provides as follows: (1) The Secretary of State must appoint a person to review the operation of the provisions of the Terrorism Act 2000 and of Part 1 of this Act. (2) That person may, from time to time, carry out a review of those provisions and, where he does so, must send a report on the outcome of his review to the Secretary of State . (3) . (4) That person must carry out and report on a review under this section at least once in every twelve month period . (5) On receiving a report under this section, the Secretary of State must lay a copy of it before Parliament.
+An outline of the issues
+Although the appellant was convicted of offences contrary to section 2 of the 2006 Act, the issue which has to be addressed involves the interpretation of section 1 of the 2000 Act, and, in particular, the meaning of the word terrorism.
+Terrorism is, of course, central to the offences in issue.
+In finding him guilty on the five counts, the jury must have been satisfied that the videos which the appellant uploaded satisfied the requirements of section 2(3)(a) of the 2006 Act.
+Thus, the jury must have concluded that the videos would have been understood by others to be encouraging or inducing them to commit, prepare or instigate acts of terrorism, and that the appellant had intended, or had been reckless as to, that consequence.
+The point which the Court of Appeal certified may be thought to be somewhat peripheral to the issues which confronted the jury.
+However the jury asked a question which gives rise to the point, and in this particular case it would be inappropriate to disregard it as irrelevant to the eventual verdict.
+If some or all of the activities shown in the uploaded videos, whose contents are briefly described in paras 2(i) to (iv) above, did not involve terrorism within the meaning of section 1 of the 2000 Act, it is possible that the appellant may have been acquitted on some or all of the five counts on which he was convicted.
+The case for the prosecution is that the definition of terrorism in section 1 of the 2000 Act, and, in particular, in subsections (1) and (2), is very wide indeed, and that it would be wrong for any court to cut it down by implying some sort of restriction into the wide words used by the legislature.
+On that basis, the appellant was rightly convicted and the answer to the certified question must be yes.
+The case for the appellant, as it developed in oral argument, had three strands.
+The first is that the 2000 Act, like the 2006 Act, was intended, at least in part, to give effect to the UKs international treaty obligations, and the concept of terrorism in international law does not extend to military attacks by a non state armed group against state, or inter governmental organisation, armed forces in the context of a non international armed conflict, and that this limitation should be implied into the definition in section 1 of the 2000 Act.
+The second, and closely connected, argument is that it would be wrong to read the 2000 or 2006 Acts as criminalising in this country an act abroad, unless that act would be regarded as criminal by international law norms.
+The third argument raised by the appellant is that, as a matter of domestic law and quite apart from international law considerations, some qualifications must be read into the very wide words of section 1 of the 2000 Act.
+Although it was advanced as an alternative argument to the contentions based on international law, we propose to start by addressing the appellants case based on the relevant statutory provisions by reference to the familiar domestic principles, and then to consider whether that meaning conflicts with international law.
+The appellants argument based on domestic law
+The definition of terrorism in section 1 of the 2000 Act is, at any rate on the face of it, very wide.
+That point was well made in R v F [2007] QB 960, paras 27 28: What is striking about the language of section 1, read as a whole, is its breadth.
+It does not specify that the ambit of its protection is limited to countries abroad with governments of any particular type or possessed of what we, with our fortunate traditions, would regard as the desirable characteristics of representative government.
+There is no list or Schedule or statutory instrument which identifies the countries whose governments are included in section 1(4)(d) or excluded from the application of the 2000 Act.
+Finally, the legislation does not exempt, nor make an exception, nor create a defence for, nor exculpate what some would describe as terrorism in a just cause.
+Such a concept is foreign to the 2000 Act.
+Terrorism is terrorism, whatever the motives of the perpetrators.
+Terrorist action outside the United Kingdom which involves the use of firearms or explosives, resulting in danger to life or creating a serious risk to the health or safety to the public in that country, or involving (not producing) serious personal violence or damage to property, or designed seriously to interfere with an electronic system, is terrorism Following these observations, the Court of Appeal in this case underlined the comprehensive scope and broad nature of the definition of terrorism in the 2000 Act: [2012] EWCA Crim 280, [2012] 1 WLR 3432, paras 16 and 52.
+The effect of section 1(1) of the 2000 Act is to identify terrorism as consisting of three components.
+The first is the use or threat of action, inside or outside the UK, where that action consists of, inter alia, serious violence, serious damage to property, or creating a serious risk to public safety or health section 1(1)(a), (2) and (4).
+The second component is that the use or threat must be designed to influence the government [of the UK or any other country] or an [IGO] or to intimidate the public section 1(1)(b) and (4).
+The third component is that the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause section 1(1)(c).
+As a matter of ordinary language, the definition would seem to cover any violence or damage to property if it is carried out with a view to influencing a government or IGO in order to advance a very wide range of causes.
+Thus, it would appear to extend to military or quasi military activity aimed at bringing down a foreign government, even where that activity is approved (officially or unofficially) by the UK government.
+It is neither necessary nor appropriate to express any concluded view whether the definition of terrorism goes that far, although it is not entirely easy to see why, at least in the absence of international law considerations, it does not.
+For present purposes it is enough to proceed on the basis that, subject to these considerations, the definition of terrorism in section 1 in the 2000 Act is, at least if read in its natural sense, very far reaching indeed.
+Thus, on occasions, activities which might command a measure of public understanding, if not support, may fall within it: for example, activities by the victims of oppression abroad, which might command a measure of public understanding, and even support in this country, may well fall within it.
+The Crown argues that, particularly given the purpose of the 2000 Act, terrorism cannot be narrowly defined, if one is to allow for the many disparate forms which terrorism may take, and the inevitable changes which will occur in international relations, in political regimes in other countries, and in the UKs foreign policy.
+Accordingly, runs the argument, a very wide definition was deliberately adopted, but, recognising the risks of criminalising activities which should not be prosecuted, the 2000 Act has, through section 117, precluded any prosecution without the consent of the Director of Public Prosecutions (DPP) or, if the activities under consideration occurred abroad, the Attorney General.
+It is clear that it is very hard to define terrorism.
+Thus, Lord Lloyd of Berwick, who wrote an Inquiry into the Legislation against Terrorism (Cm 3420) which contained recommendations which were reflected in the 2000 Act, observed in a speech on the second reading of the Bill which later became that Act that there are great difficulties in finding a satisfactory definition of terrorism, and suspected that none of us will succeed.
+That view has been cited with agreement in reports produced by the two successive Independent Reviewers of the legislation appointed under section 36 of the 2006 Act, Lord Carlile of Berriew QC and Mr David Anderson QC.
+In reports produced in 2006 and 2007 Lord Carlile concluded that the statutory definition of terrorism was practical and effective and advised that, save for small amendments, the definition should remain as originally drafted.
+More specifically, he observed that the current definition in the Terrorism Act 2000 is consistent with international comparators and treaties, and is useful and broadly fit for purpose.
+Lord Carlile also stated that the discretion vested in the authorities to use or not to use the special laws is a real and significant element of protection against abuse of rights.
+Mr Anderson published his first report in June 2012, in which he referred to the definition in section 1 in the 2000 Act as complex and notable for its breadth.
+He pointed out that actions may amount to terrorism within the definition even when they might otherwise constitute lawful hostilities under international humanitarian law (e.g. acts of violent rebellion against oppressive governments).
+Mr Anderson recognised that the statutory definition left a large discretion to prosecutors, mitigated only by the requirement [for] consent under section 117 of the 2000 Act, together with other wide discretions.
+He went on to refer to the risk that strong powers could be used for purposes other than the suppression of terrorism as it is generally understood.
+He also observed that there was a case for shrinking the definition of terrorism, given that [a]s presently drafted, the definition is so broad as to criminalise certain acts carried out overseas that constitute lawful hostilities under international humanitarian law.
+In his recent second report, published in July 2013, Mr Anderson again
+referred to the definition, describing it as remarkably broad absurdly so in some cases, and went on discuss the issue very instructively.
+He pointed out that the consequence of the very broad definition was to grant unusually wide discretions to all those concerned with the application of the counter terrorism law, from Ministers exercising their power to impose executive orders to police officers deciding whom to arrest or to stop at a port and prosecutors deciding whom to charge, but went on to say that that the wide discretions appear for the most part to be responsibly exercised.
+He also expressed the view that any amendment to the definition would involve a root and branch review of the entire edifice of anti terrorism law, based on a clear headed assessment of why and to what extent it is operationally necessary to supplement established criminal laws and procedures, a review which he said that he would welcome.
+He also made the point that if special legal rules are to be devised in relation to it, they should be limited in their application, and justified on the basis of operational necessity.
+We turn to the consent requirement created by section 117 of the 2000 Act.
+In the general way the decision whether to initiate the prosecution of any crime, whether created by statute or common law, is subject to the well known prosecutorial discretion.
+Where the consent of the DPP or the Attorney General is required, their respective responsibilities are exercised for the unexceptionable purpose of ensuring that a prosecution should not be instigated nor proceed if this would not be in the public interest.
+However, the prosecutorial discretion was never intended, and as far as we can ascertain, it has never been suggested that it was ever intended, to assist in the interpretation of legislation which involves the creation of a criminal offence or offences.
+Either specific activities carried out with a particular intention or with a particular state of mind are criminal or they are not.
+The Crowns reliance on prosecutorial discretion is intrinsically unattractive, as it amounts to saying that the legislature, whose primary duty is to make the law, and to do so in public, has in effect delegated to an appointee of the executive, albeit a respected and independent lawyer, the decision whether an activity should be treated as criminal for the purposes of prosecution.
+Such a statutory device, unless deployed very rarely indeed and only when there is no alternative, risks undermining the rule of law.
+It involves Parliament abdicating a significant part of its legislative function to an unelected DPP, or to the Attorney General, who, though he is accountable to Parliament, does not make open, democratically accountable decisions in the same way as Parliament.
+Further, such a device leaves citizens unclear as to whether or not their actions or projected actions are liable to be treated by the prosecution authorities as effectively innocent or criminal in this case seriously criminal.
+Given that the consent requirement in section 117 is focused on the decision whether to consent to a prosecution, this approach to the construction of the 2000 Act has two further undesirable consequences.
+First, the lawfulness of executive acts such as detention, search, interrogation and arrest could be questioned only very rarely indeed in relation to any actual or suspected involvement in actual or projected acts involving terrorism, in circumstances where there would be no conceivable prospect of such involvement being prosecuted.
+Secondly, the fact that an actual or projected activity technically involves terrorism means that, as a matter of law, that activity will be criminal under the provisions of the 2000 and 2006 Acts, long before, and indeed quite irrespective of whether, any question of prosecution arises.
+We return to the language used in section 1 of the 2000 Act.
+Despite the undesirable consequences of the combination of the very wide definition of terrorism and the provisions of section 117, it is difficult to see how the natural, very wide, meaning of the definition can properly be cut down by this Court.
+For the reasons given by Lord Lloyd, Lord Carlile and Mr Anderson, the definition of terrorism was indeed intended to be very wide.
+Unless it is established that the natural meaning of the legislation conflicts with the European Convention on Human Rights (which is not suggested) or any other international obligation of the United Kingdom (which we consider in the next section of this judgment), our function is to interpret the meaning of the definition in its statutory, legal and practical context.
+We agree with the wide interpretation favoured by the prosecution: it accords with the natural meaning of the words used in section 1(1)(b) of the 2000 Act, and, while it gives the words a concerningly wide meaning, there are good reasons for it.
+We are reinforced in this view by the further consideration that the wide definition of terrorism was not ignored by Parliament when the 2000 Act was being debated.
+It was discussed by the Home Secretary who also, in answer to a question, mentioned the filter of section 117 (see Hansard (HC Deb) 14 December 1999, cols 159, 163).
+This is not a case in which it is appropriate to refer to what was said in Parliament as an aid to statutory interpretation, but it provides some comfort for the Crowns argument.
+Of rather more legitimate relevance is the fact that Parliament was content to leave the definition of terrorism effectively unchanged, when considering amendments or extensions to the 2000 Act, well after the 2007 report of Lord Carlile, which so clearly (and approvingly) drew attention to the width of the definition of terrorism see eg the Crime and Security Act 2010, the Terrorist Asset Freezing etc Act 2010 and the Terrorism Prevention and Investigation Measures Act 2011.
+In reaching our conclusion, we do not attach any weight to the provisions of
+section 117 of the 2000 Act as an aid to construction.
+It may well be that any concern which Parliament had about the width of the definition of terrorism in section 1(1) was mitigated by the existence of the statutory prosecutorial discretion, but, for the reasons given in paras 35 and 37 above, we do not regard it as an appropriate reason for giving terrorism a wide meaning.
+Accordingly, we conclude that, unless the appellants argument based on international law dictates a different conclusion, the definition of terrorism as in section 1 of the 2000 Act is indeed as wide as it appears to be.
+This would result in the certified question being answered yes.
+The appellants argument based on international law Introductory
+If the attacks on Coalition forces in Afghanistan and Iraq, and on military
+targets in Chechnya, shown on the seized videos would otherwise amount to terrorism as defined in section 1 of the 2000 Act, the appellant contends that this would be contrary to, or inconsistent with, the norms of international law.
+The appellant has two arguments in this connection.
+The first is that some provisions of the 2000 and 2006 Acts were enacted to give effect to the UKs international obligations arising under treaties concerned with the suppression of terrorism, and that terrorism should accordingly be given a meaning in those statutes which accords with the international law norm, and at any rate with the definition in the relevant international document to which effect is intended to be given.
+The second argument is that, as the 2000 and 2006 Acts criminalise certain terrorist actions committed outside the UK, the meaning of terrorism in those statutes should not be wider than what is accepted as an international norm.
+No international consensus as to terrorism
+These two arguments each face more than one insuperable obstacle.
+The common obstacle they both face is that there is no accepted norm in international law as to what constitutes terrorism.
+As this court observed in a judgment given by Lady Hale and Lord Dyson in Al Sirri v Secretary of State for the Home Department (United Nations High Commissioner for Refugees intervening) [2013] 1 AC 745, para 37, there is as yet no internationally agreed definition of terrorism and no comprehensive international Convention binding Member States to take action against it.
+Indeed, the reasoning in that case proceeded on the basis that the definition of terrorism in the 2000 Act was significantly wider than in article 1F(c) of the 1951 Convention relating to the Status of Refugees (the Geneva Convention) see para 36.
+The appellant seeks to meet this point through the contention that, whereas there is no international agreement as to the meaning of terrorism, there is a general understanding that it does not extend to the acts of insurgents or freedom fighters in non international armed conflicts.
+The short answer to this point is that, while there is significant support for such an idea, any such support falls far short of amounting to a general understanding which could be properly invoked as an aid to statutory interpretation.
+As the Court of Appeal said in para 35, while international law has developed so that the crime of terrorism is recognised in situations where there is no armed conflict, it has not developed so that it could be said there is sufficient certainty that such a crime could be defined as applicable during a state of armed conflict.
+Accordingly, as it went on to conclude in para 50, there is no rule of international law which requires this court to read down section 1 of the 2000 Act.
+The United Nations has attempted to identify a comprehensive definition of terrorism, but has so far failed.
+Indeed, it appears that one of the difficulties has been achieving agreement as to the very point at issue in this appeal.
+In 2007, the ad hoc committee established by General Assembly resolution 51/210 of 17 December 1996 suggested that it be agreed that the activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention.
+However no consensus has been achieved, because various states delegations were concerned about (a) the right of peoples to self determination under international law; (b) the activities of armed forces in armed conflict; and (c) the activities of military forces of a State in peacetime, also taking into account related concerns about State terrorism to quote from the committees 2011 report.
+In early 2012, the General Assembly established a working group to finalise the drafting of a comprehensive international convention on terrorism, but, by the end of that year, the chair of the group reported that there were still disagreements, including as to the precise distinction between terrorism and legitimate struggle of peoples fighting in the exercise of their right to self determination.
+It is true that there are UN Conventions and Council of Europe Conventions concerned with counter terrorism, which define terrorism as excluding activities of armed forces during an armed conflict, but there is room for argument as to their precise effect, and, more importantly, it is quite impossible to suggest that there is a plain or consistent approach in UN Conventions on this issue.
+Thus, the Crown asserts that the UN has adopted fourteen counter terrorism treaties to date1, and of these fourteen treaties (i) seven state that the activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law are not governed 1 1963 Convention on Offences and Certain Other Acts Committed on Board Aircraft; 1970 Convention for the Suppression of Unlawful Seizure of Aircraft; 2010 Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft; 1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation; 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons; 1979 International Convention against the Taking of Hostages; 1980 Convention on the Physical Protection of Nuclear Material; 1988 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation; 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation; 2005 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation; 1988 Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf; 2005 Protocol to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf; 1991 Convention on the Marking of Plastic Explosives for the Purpose of Detection; 1997 International Convention for the Suppression of Terrorist Bombings; 1999 International Convention for the Suppression of the Financing of Terrorism; 2005 International Convention for the Suppression of Acts of Nuclear Terrorism; 2010 Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation; http://www.un.org/terrorism/instruments.shtml by this Convention, (ii) of the seven which have no such statement, six provide that the treaty does not exclude any criminal jurisdiction exercised in accordance with national law, and (iii) of the seven which include such a statement, at least five contain a provision substantially to the like effect.
+The appellant contends that the absence of an armed conflict exclusion from a treaty does not mean that that treaty applies in relation to an action at a time of armed conflict.
+However, it is not normally appropriate to imply a term into an international treaty, and, in any event, the absence of any such express exclusion is scarcely consistent with the contention that there is an internationally accepted norm such as the appellant suggests.
+Further, as this court pointed out in Al Sirri, para 68, an attack on [the International Security Assistance Force in Afghanistan] is in principle capable of being an act contrary to the purposes and principles of the United Nations, and such an attack therefore can constitute terrorism see para 3 of the same judgment.
+Consistently with this, there have been UN resolutions referring to the activities of Al Qaida and the Taliban as terrorism, notwithstanding allegations that their actions involved insurgents attacking forces of states and IGOs in non international armed conflict (eg UN Security Council resolutions 2041, 2069 and 2082 of 2012, and Council Decision 2011/486/CFSP of 1 August 2011).
+In addition, in international humanitarian law, it appears that insurgents in non international armed conflicts do not enjoy combatant immunity.
+Crawford in the Treatment of Combatants and Insurgents under the Law of Armed Conflict (2010), pp 78 79, says that international law does not immunize participation in non international armed conflict, and that there is nothing in the customary international law that replicates combatant immunity for persons who participate in non international armed conflicts, a view supported by Sivakumaran in The Law of Non International Armed Conflicts (2012), p 515.
+As for domestic legislation across the world, the Crown states in its argument, without challenge, that of a survey of 42 states it has identified with legislation which defines terrorism, (i) 28 do not exclude armed attacks, (ii) four explicitly include armed attacks, and (iii) seven explicitly exclude armed attacks (which includes the United States, although its position might be said to be ambivalent, as some of the relevant legislation is widely drawn without the exclusion).
+It is true that none of these legislative provisions explicitly refer to armed attacks during a time of armed conflict, but we would refer back to the point made at the end of para 48 above.
+Other problems faced by the appellants case
+It appears clear that sections 62 64 of the 2000 Act give effect to the UKs obligations under the International Convention for the Suppression of Terrorist Bombings 1997 and the International Convention for the Suppression of the Financing of Terrorism 1999.
+It is also fair to say that these two Conventions, particularly the latter, appear to have been drafted so as to exclude insurgent attacks on military forces in non international armed conflicts from their respective ambits.
+However, the notion that the meaning of terrorism in section 1 of the 2000 Act should be read down, because some of the activities which were rendered offences by that Act were criminalised as a result of the UKs obligations under the two Conventions, runs into two difficulties.
+First, there is no rule that the UK government cannot go further than is required by an international treaty when it comes to legislating the exercise is often known as gold plating.
+It is not as if there is anything in either the 1997 or the 1999 Convention which excludes a signatory state going further than the requirements of the Convention, or anything in the 2000 Act which suggests that Parliament intended to go no further.
+That is not to say that gold plating is never objectionable, but no argument was advanced on this appeal to suggest that there was any reason why it was objectionable in this case (save that considered and rejected in paras 44 51 above).
+Secondly, quite apart from this, if the wide definition of terrorism in section 1 of the 2000 Act has to be read down for the purposes of sections 62 64, there is no reason to read it down when it comes to any other provision of the Act or of the 2006 Act.
+In Al Sirri, para 36, this court appears to have approved, indeed to have relied on, the proposition that, if application of the wide definition of terrorism in section 1 of the 2000 Act led to another provision of the Act conflicting with the UKs obligations under the Geneva Convention, then the definition should be read down when applied to the provision in question, and not generally throughout the Act.
+To conclude otherwise would be a classic case of letting the tail wag the dog.
+The 2006 Act takes the appellants argument no further.
+It is true that some of its provisions give effect to the UKs obligations under the Council of Europe Convention on the Prevention of Terrorism 2005 and the International Convention for the Suppression of Acts of Nuclear Terrorism 2005.
+However, section 2 of the 2006 Act was not enacted to give effect to any international Convention, and, even if it had been and had gone further than the Convention concerned required, there is no reason why Parliament should not have gold plated the legislation, as already explained.
+The appellants reliance on the fact that there are provisions of the 2000 and 2006 Acts which criminalise various activities as terrorist offences even if committed abroad, runs into similar problems.
+Even if it were the case that, because of the need to take into account the UKs international law obligations, the wide definition of terrorism had to be read down when it comes to construing those provisions, that would be of no assistance to a defendant such as the appellant, who is a UK citizen being prosecuted for offences allegedly committed in this country.
+There is no reason to read down the wide definition of terrorism in a case such as this.
+The present case does not involve a defendant who has committed acts, which are said to be offences, abroad: the activities said to be offences were committed in the UK and by a UK citizen.
+That renders it unnecessary for us to consider whether, as there is no internationally agreed definition of terrorism, the Court of Appeal was right to decide that there is no reason why Parliament cannot criminalise acts of terrorism, as defined in section 1 of the 2000 Act, committed outside the UK.
+In reaching that decision, the Court of Appeal relied on the Permanent Court of International Justices statement in The SS Lotus 1927, PCIJ, Series A, No 10, para 48 that [r]estrictions upon the independence of states cannot be presumed given that the rules of law binding upon states emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between [states] or with a view to the achievement of common aims.
+Whilst various assumptions on which that decision was based have been modified or superseded by subsequent developments in international law, the Lotus principle [is] that states have the right to do whatever is not prohibited by international law, as is stated in the Max Planck Encyclopaedia of Public International Law, in its discussion of the case.
+The appellant contends that the mere fact that certain actions can be characterised as terrorism without offending international law does not mean that those actions can be criminalised by one state if they are carried out in another state.
+The appellant cites, for example, Brownlies Principles of Public International Law (8th ed 2012), p 458, which says if a state wishes to project its prescriptive jurisdiction extra territorially, it must find a recognised basis in international law for doing so.
+That raises a point of some importance and some difficulty, and it might be said to represent a shift in focus in international law.
+Given that we do not have to decide the issue, we should not do so in this appeal: it should await another case.
+Conclusion
+We would accordingly answer the certified question yes, and consequently we would dismiss this appeal.
+Before ending this judgment, we would make two further points of a general nature about the 2000 and 2006 Acts.
+First, we revert to the concern about the width of the definition of terrorism, as discussed in paras 28 29 and 33 37 above.
+In his first report, Mr Anderson QC made the point that the current law allows members of any nationalist or separatist group to be turned into terrorists by virtue of their participation in a lawful armed conflict, however great the provocation and however odious the regime which they have attacked.
+He went on to say that other definitions of terrorism choose to exclude activities sanctioned by international law from the reach of terrorist activity, citing the Canadian and South African Criminal Codes as examples.
+In his second report, Mr Anderson mentioned the potential application of the Terrorism Acts even to UK forces engaged in conflicts overseas, and referred to the fact that a recent Australian report recommend[ed] that Australian law be changed so as to provide that the relevant parts of the Criminal Code, as in Canada, do not apply to acts committed by parties regulated by the law of armed conflict.
+While acknowledging that the issue is ultimately one for Parliament, we should record our view that the concerns and suggestions about the width of the statutory definition of terrorism which Mr Anderson has identified in his two reports merit serious consideration.
+Any legislative narrowing of the definition of terrorism, with its concomitant reduction in the need for the exercise of discretion under section 117 of the 2000 Act, is to be welcomed, provided that it is consistent with the public protection to which the legislation is directed.
+The second general point is that the wide definition of terrorism does not only give rise to concerns in relation to the very broad prosecutorial discretion bestowed by the 2000 and 2006 Acts, as discussed in paras 36 37 above.
+The two Acts also grant substantial intrusive powers to the police and to immigration officers, including stop and search, which depend upon what appears to be a very broad discretion on their part.
+While the need to bestow wide, even intrusive, powers on the police and other officers in connection with terrorism is understandable, the fact that the powers are so unrestricted and the definition of terrorism is so wide means that such powers are probably of even more concern than the prosecutorial powers to which the Acts give rise.
+detain in port and at borders is left to the examining officer.
+The power is not subject to any controls.
+Indeed, the officer is not even required to have grounds for suspecting that the person concerned falls within section 40(1) of the 2000 Act (ie that he has committed an offence, or he is or has been concerned in the commission, preparation or instigation of acts of terrorism), or even that any offence has been or may be committed, before commencing an examination to see whether the person falls within that subsection.
+On this appeal, we are not, of course, directly concerned with that issue in this case.
+But detention of the kind provided for in the Schedule represents the possibility of serious invasions of personal liberty.
+Thus, under Schedule 7 to the 2000 Act, the power to stop, question and
diff --git a/UK-Abs/test-data/judgement/uksc-2012-0143.txt b/UK-Abs/test-data/judgement/uksc-2012-0143.txt
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+Is a person who has been extradited to this country for trial on a criminal charge, and who prior to his extradition was guilty of contempt of court by disobeying a court order, open to punishment for his contempt although it was not the basis of his extradition? The answer depends in part on the proper interpretation of the so called specialty or speciality provisions of the Extradition Act 2003 and partly on the law relating to contempt.
+The speciality principle (widely recognised in extradition law and extradition treaties) prohibits a person who has been extradited for a particular offence or offences from being dealt with by the requesting state for another offence or offences committed (or alleged to have been committed) before his extradition, subject to such exceptions as may be contained in the relevant statute or treaty.
+Mr OBrien appeals against a decision of the Criminal Division of the Court of Appeal (Gross LJ, Openshaw J and Judge Milford QC) [2012] 1 WLR 3170, upholding an order of the Common Serjeant (Judge Barker QC) committing him to prison for 15 months for contempt of court in disobeying a restraint order made against him under section 41 of the Proceeds of Crime Act 2002 (POCA).
+The appellant does not dispute that he was guilty of contempt, but he submits that his committal was unlawful by reason of the specialty provisions of Part 3 of the Extradition Act 2003.
+After committing the contempt the appellant fled to the USA, from where he was extradited to the UK for other reasons.
+It is submitted that it was not thereafter open to the English court to punish him for his earlier contempt, for which he had not been extradited.
+The Court of Appeal certified the following points of law of general public importance: i.
+Whether a contempt of court constituted by breach of a restraint order made under section 41 of the Proceeds of Crime Act 2002 constitutes a civil or criminal contempt. ii.
+If the answer to i) is a civil contempt, whether Section 151A of the Extradition Act 2003 and/or article 18 of the United Kingdom United States Extradition Treaty 2003 preclude/s a court from dealing with a person for such a contempt when that person has been extradited to the United Kingdom in respect of criminal offences but not the contempt in question.
+In 2009 the Appellant came under investigation on suspicion of involvement in a large scale scheme to defraud investors, commonly known as a boiler room fraud.
+On 24 September 2009 the Common Serjeant made a restraint order against him under section 41 of POCA.
+It required the appellant, among other things, to make disclosure of his assets, not to remove assets from England and Wales, and to repatriate within 21 days any moveable asset in which he had an interest outside England and Wales.
+The order was prefaced in the usual way with a penal notice, that is, a warning that if he disobeyed the order he may be held to be in contempt of court and imprisoned, fined or have his assets seized.
+In this respect the order followed the standard form of freezing order in civil proceedings (originally known as a Mareva order), on which the statutory criminal restraint order provisions were modelled.
+The appellant failed to comply with the restraint order and he fled the jurisdiction.
+On 18 December 2009 the Common Serjeant found that he was in contempt of court, issued a warrant for his arrest and adjourned the imposition of a penalty.
+Six months later the Appellant was traced to Chicago.
+The Serious Fraud Office (SFO) by now wanted his extradition in order to prosecute him on charges relating to the alleged fraud.
+They sought the assistance of the US authorities and a federal arrest warrant was issued against him.
+On 8 October 2010 he was arrested in Chicago and appeared before the local US District Court.
+He consented to his extradition in accordance with the UKs request but did not waive entitlement to the benefit of the specialty principle.
+The SFO was initially under the impression that as a matter of law the appellants contempt was criminal in nature.
+However, the United Kingdom United States Extradition Treaty 2003 limited extradition to offences punishable by imprisonment for 12 months or more, and in the USA the maximum sentence for the appellants contempt, if punishable as a misdemeanour, would have been six months imprisonment.
+In those circumstances the SFO was concerned that there might be complications if the appellant were returned to the UK under an extradition order for prosecution for the boiler room fraud but at the same time was subject to a bench warrant for the earlier contempt.
+This concern led the SFO to apply to the Common Serjeant to set aside the bench warrant, and on 30 November 2010 he did so.
+On 2 December 2010 the appellant was returned to the UK.
+He was arrested, charged with various offences of fraud and remanded in custody.
+On further consideration, the SFO came to the view that the appellants contempt was not a criminal offence and so was not affected by the specialty principle.
+It therefore applied to the Common Serjeant for the appellants committal.
+The appellant objected that the court had no jurisdiction to hear the application.
+In a judgment delivered on 1 April 2011 the Common Serjeant rejected the appellants objection.
+After reviewing the authorities he concluded that the contempt was not a criminal offence, but was a civil contempt, and that the specialty principle therefore did not afford the appellant any protection.
+The Court of Appeal upheld the Common Serjeants decision.
+For the avoidance of doubt, the question whether the appellants contempt constituted a civil or criminal contempt made no difference to the jurisdiction of the Criminal Division to hear his appeal, by virtue of section 13 of the Administration of Justice Act 1960 and section 53 of the Senior Courts Act 1981.
+Section 13 of the 1960 Act provides that an appeal shall lie from any order or decision of a court in the exercise of jurisdiction to punish for contempt of court (including criminal contempt), and that such an appeal from the Crown Court shall lie to the Court of Appeal.
+Section 53 of the 1981 Act provides that the Criminal Division of the Court of Appeal shall exercise the jurisdiction of the Court of Appeal under the former section in relation to appeals from orders and decisions of the Crown Court.
+Grounds of appeal
+Mr Alun Jones QC advanced two arguments on behalf of the appellant.
+His primary submission was that on the appellants extradition to the UK the Crown Court had no power to deal with him for his earlier contempt, no matter whether it constituted a civil or a criminal contempt.
+If he failed on that point, his second submission was that the appellants contempt should be classified as criminal.
+The first point depends on the proper construction of the Extradition Act.
+The second depends on the law of contempt.
+Extradition Act 2003
+Part 1 of the Extradition Act deals with extradition from the UK to category 1 territories.
+Part 2 deals with extradition from the UK to category 2 territories.
+Part 3 deals with extradition to the UK from category 1 and 2 territories.
+The USA is a category 2 territory.
+The appellants argument is clear and simple.
+Part 3 should be regarded as a self contained code governing extradition to the UK.
+It comprises sections 142 155A (section 155A, as inserted by section 42 of, and paragraph 24 of Schedule 13 to, the Police and Justice Act 2006) but the important provisions for the purposes of the appellants argument are sections 148 and 151A (as inserted by section 76(3) of the Policing and Crime Act 2009).
+Section 148(1) provides: Conduct constitutes an extradition offence in relation to the United Kingdom if these conditions are satisfied (a) the conduct occurs in the United Kingdom; (b) the conduct is punishable under the law of the relevant part of the United Kingdom with imprisonment or another form of detention for a term of 12 months or a greater punishment.
+The appellants contempt occurred in the United Kingdom and was punishable under section 14(1) of the Contempt of Court Act 1981 with imprisonment for longer than 12 months.
+He submits that it was therefore an extradition offence within the definition of section 148.
+Section 151A provides: (1) This section applies if a person is extradited to the United Kingdom from a territory which is not (a) a category 1 territory, or (b) a territory falling within section 150(1)(b) [which does not include the USA]. (2) The person may be dealt with in the United Kingdom for an offence committed before the persons extradition only if (a) the offence is one falling within subsection (3), or (b) the condition in subsection (4) is satisfied. (3) The offences are (a) (b) (c) (a) (b) the offence in respect of which the person is extradited; an offence disclosed by the information provided to the territory in respect of that offence; an offence in respect of which consent to the person being dealt with is given on behalf of the territory. (4) The condition is that the person has returned to the territory from which the person was extradited, the person has been given an opportunity to leave the United Kingdom. (5) A person is dealt with in the United Kingdom for an offence if (a) (b) the person is tried there for it; the person is detained with a view to trial there for it.
+For reasons which I will explain, section 148 has no direct application to the extradition of a person to the United Kingdom from the United States.
+However, two matters are not in dispute.
+First, it is common ground that if the appellants contempt amounted to an offence within the meaning of section 151A, it was not open to a court in the United Kingdom to deal with him for that contempt.
+Secondly, although an offence (in section 151A) is wider than an extradition offence (in section 148) in that it is not limited to an extraditable offence, it is not suggested that the meaning of the word offence itself varies in different sections of the Act.
+If it means a criminal offence in one section it must mean a criminal offence in the other.
+For completeness it is right to record that the United Kingdom United States Extradition Treaty 2003 (Cm 7146) contains the following specialty clause in article 18(1): A person extradited under this Treaty may not be detained, tried, or punished in the Requesting State except for: (a) any offense for which extradition was granted, or a different denominated offense based on the same facts as the offense on which the extradition was granted, provided such offense is extraditable, or is a lesser included offense Article 2.1 provides: An offense shall be an extraditable offense if the conduct on which the offense is based is punishable under the laws in both States by deprivation of liberty for a period of one year or more or by a more severe penalty.
+Those provisions of the Treaty run in tandem with the Act but do not give rise to a separate argument.
+The argument clearly and forcefully presented by Mr Jones depends for its persuasiveness on reading section 148 in isolation.
+However, for a proper understanding of its purpose and construction it is necessary to see how the section fits into the structure of the Act.
+Parts 1, 2 and 3 of the Act each contains a definition of extradition offence, which have in common that they refer to conduct punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment.
+In Part 1 the relevant sections are 64 and 65; in Part 2 the relevant sections are sections 137 and 138.
+The full definitions vary according to whether the extradition is outwards or inwards, the territories concerned, and whether the person subject to the proceedings has already been sentenced, but there is a common structure.
+The Extradition Act 2003 replaced the Extradition Act 1989.
+The need for new legislation arose from the Council Framework Decision of 13 June 2002 on the European arrest warrant and surrender procedures between member states (2002/584/JHA).
+Those states are designated as category 1 territories under the 2003 Act, and Part 1 of the Act implements the Framework Decision in relation to arrest warrants issued by them.
+The rationale of the Framework Decision is summarised in para (5) of the preamble: The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities.
+Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures.
+Traditional co operation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre sentence and final decisions within an area of freedom, security and justice. [Emphasis added.]
+Article 1.1 provides: The European Arrest Warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. [Emphasis added.]
+It follows that under the Framework Decision it is a prerequisite of a valid arrest warrant that the conduct of which the person is accused or has been convicted constitutes a criminal offence under the law of the requesting state.
+The process by which Part 1 of the 2003 Act gives effect to the Framework Decision is linear, by which I mean that it sets out a series of stages and what is required at each stage.
+Section 2 sets out the formal requirements of a European Arrest Warrant; it must specify the offence of which the person is accused or has been convicted.
+Section 3 authorises the arrest of the person who is the subject of a European Arrest Warrant.
+The arrested person must be brought before a judge within 48 hours (section 6).
+If the judge is satisfied that the person brought before him is the subject of the arrest warrant, he must fix a date for the extradition hearing and deal with various procedural matters (section 8).
+At the initial stage of the extradition hearing, section 10(2) requires the judge to decide whether the offence specified in the Part 1 warrant is an extradition offence.
+In order to decide that question the judge must apply either section 64 or section 65.
+Section 64 applies to a person who has not been sentenced, ie someone who has been accused but not tried or who has been convicted but not sentenced.
+Section 65 applies to a person who is alleged to be unlawfully at large after conviction and has been sentenced for the offence.
+The question whether the offence specified in the warrant is an extradition offence for the purposes of Part 1 depends on (a) the nature of the offence, in particular whether it is included in the European Framework list of extraditable offences or, if not, whether it would constitute an offence under the law of the United Kingdom if committed in the United Kingdom and (b) the length of the term of imprisonment to which the person either might be sentenced or has been sentenced.
+Thus section 64 provides (in relation to a person not sentenced for the specified offence): (2) The conduct constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied (a) the conduct occurs in the category 1 territory and no part of it occurs in the United Kingdom; (b) a certificate issued by the appropriate authority of the category 1 territory shows that the conduct falls within the European framework list; (c) the certificate shows the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 3 years or a greater punishment. (3) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied (a) the conduct occurs in the category 1 territory; (b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom; (c) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law).
+Section 65 contains analogous provisions in relation to sentenced offenders.
+Extradition to non EU Member States with which the UK has extradition arrangements (category 2 territories) is governed by Part 2 of the 2003 Act.
+The process begins with a request through diplomatic channels but the judicial process in the UK follows a similar pattern to that set out in Part 1.
+At an initial stage the judge has to decide under section 78(4) whether the offence specified in the request for extradition is an extradition offence.
+For that purpose the judge has to apply section 137 (in relation to a person who is accused of the offence or has been convicted but not sentenced) or section 138 (in relation to a person who has been sentenced for the offence).
+Those sections closely resemble sections 64 and 65 in Part 1.
+Thus section 137(2), which is the counterpart to section 64(2), provides: The conduct constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied (a) the conduct occurs in the category 2 territory; (b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom; (c) the conduct is so punishable under the law of the category 2 territory (however it is described in that law).
+The function of the definition of extradition offence in sections 64 and 65 of Part 1 and sections 137 and 138 of Part 2 is to differentiate between an offence for which a person may be extradited and one for which he may not.
+To be an extradition offence, it must not only be a criminal offence but it must satisfy the prescribed criteria.
+That accords not only with the scope of extradition under the Framework Decision but also with the essential nature of extradition as historically it has always been understood in the United Kingdom.
+The Extradition Act 1870 (33 and 34 Vict, c 52) set out in the language of its preamble: the law relating to the surrender to foreign states of persons accused or convicted of the commission of certain crimes within the jurisdiction of such states, and to the trial of criminals surrendered by foreign states to this country.
+Such persons were referred to in the Act as fugitive criminals.
+The Extradition Act 1989 defined the term extradition crime as: Conduct in the territory of a foreign state.which, if it occurred in the United Kingdom, would constitute an offence punishable with imprisonment for a term of 12 months, or any greater punishment, and which, however described in the law of the foreign state, is so punishable under that law.
+The word offence in that definition clearly referred to a criminal offence because that was the word being defined.
+The effect of the definition was to narrow the class of crimes constituting extradition crimes to those of sufficient seriousness to warrant extradition.
+Similarly, section 2(1)(a) of the 1989 Act contained a definition of extradition crime in language which closely resembles section 137(2) of the 2003 Act.
+There is a difference in the introductory words in that section 2(1) of the 1989 Act began with the words Extradition crime means, whereas section 137(2) of the 2003 Act begins with the words the conduct constitutes an extradition offenceif, but I would reject the idea that the change of wording reflects a subtle intention to widen the concept of an extradition offence so as to include non criminal conduct.
+To change the law in that respect would have been a significant step which one would expect to have been highlighted at that time.
+Part 3, under which the present appeal arises, is the reciprocal of Parts 1 and 2 in that it is concerned with extradition from category 1 and category 2 territories to the UK.
+Extradition from a category 1 territory is a judicial process under the Framework Decision.
+Sections 142 to 149 implement that process.
+Under section 142 a judge may issue a part 3 warrant if satisfied among other things that there are reasonable grounds for believing that the person has committed an extradition offence or that the person is unlawfully at large having been convicted of an extradition offence.
+Section 148 applies in this context.
+Section 148 has no direct application in relation to the extradition of a person from a category 2 territory, as in the present case, because the UK judiciary is not involved in the process of obtaining the extradition of a person from a category 2 territory.
+The process of extradition from a category 2 territory is triggered not by a warrant issued by a UK judge but by a request from the Government to the foreign state.
+For that reason sections 142 149 have no counterpart in relation to extradition from category 2 territories.
+In any event, however, it is in my judgment clear for the reasons set out above that nothing can constitute an extradition offence (whether for the purposes of Part 1, Part 2 or Part 3) unless it is a criminal offence under the law of the relevant state.
+Not every alleged criminal offence will amount to an extradition offence, but it is a necessary pre condition of an extradition offence that the conduct or alleged conduct is proscribed by the criminal law of the relevant state.
+For those reasons I would reject Mr Joness principal argument.
+Civil or criminal contempt
+A restraint order under section 41 of POCA is an interim remedy.
+Its aim is to prevent the disposal of realisable assets during a criminal investigation or criminal proceedings.
+Under section 41(7) the court may make such order as it believes is appropriate for the purpose of insuring that the restraint order is effective.
+This may include, for example, an order requiring disclosure of assets by the person against whom the restraint order is made.
+A restraint order may also be reinforced by the appointment of a receiver under section 48 and the court may order any person who has possession of realisable property to which the restraint order applies to give possession of it to the receiver.
+POCA does not provide that it is an offence to disobey or obstruct a restraint order or a receivership order, but the Crown Court has an inherent power to treat such behaviour as contempt of court, for which it may impose punishment under section 45 of the Senior Courts Act 1981.
+Rule 59.6 of the Criminal Procedure Rules 2013 (SI 2013/1554) provides that an applicant who wants the Crown Court to exercise that power must comply with the rules set out in part 62 (Contempt of Court).
+There is a distinction long recognised in English law between civil contempt, ie conduct which is not in itself a crime but which is punishable by the court in order to ensure that its orders are observed, and criminal contempt.
+Among modern authorities, the distinction was explained in general terms in Home Office v Harman [1983] 1 AC 280 (in particular by Lord Scarman at p 310) and Attorney General v Times Newspapers Ltd [1992] 1 AC 191 (in particular by Lord Oliver at pp 217 218).
+Breach of an order made (or undertaking obtained) in the course of legal proceedings may result in punishment of the person against whom the order was made (or from whom the undertaking was obtained) as a form of contempt.
+As Lord Oliver observed in Attorney General v Times Newspapers Ltd, although the intention with which the person acted will be relevant to the question of penalty, the liability is strict in the sense that all that is required to be proved is the service of the order and the subsequent doing by the party bound of that which was prohibited (or failure to do that which was ordered).
+However, a contempt of that kind does not constitute a criminal offence.
+Although the penalty contains a punitive element, its primary purpose is to make the order of the court effective.
+A person who commits this type of contempt does not acquire a criminal record.
+A criminal contempt is conduct which goes beyond mere non compliance with a court order or undertaking and involves a serious interference with the administration of justice.
+Examples include physically interfering with the course of a trial, threatening witnesses or publishing material likely to prejudice a fair trial.
+The distinction is not unique to English law.
+A similar distinction is recognised in the U.S.A.
+In Turner v Rogers 564 US 1 (2011) the US Supreme Court had to decide whether the Due Process Clause of the US Constitution granted an indigent defendant a right to state appointed counsel in civil contempt proceedings which might lead to his imprisonment.
+Justice Breyer, at page 8, said that civil contempt differs from criminal contempt in that it seeks only to coerce the defendant to do what the court had ordered him previously to do.
+If a victim of the appellants fraud had obtained a freezing order against him similar to the restraint order made under section 41 of POCA, there is no doubt that the claimant would have been entitled to bring contempt proceedings against the appellant after his extradition to the United Kingdom.
+The case would be analogous to Pooley v Whetham (1880) LR 15 Ch D435.
+An order was made in litigation between Mr Pooley and a bank that Mr Pooley was to give up possession of certain property to a receiver and manager appointed by the court.
+Mr Pooley disobeyed the order and went to Paris, where he was arrested under a warrant issued under the Extradition Act 1870 for an alleged offence of fraud.
+After his return Mr Pooley was acquitted for the fraud for which he had been extradited to stand trial, but the bank sought to proceed against him for his earlier contempt.
+It was argued unsuccessfully on his behalf that the proceedings contravened section 19 of the 1870 Act, which provided that a person who was arrested under the Act should not be triable or tried for any offence committed prior to his arrest other than a crime for which the surrender was granted.
+The Court of Appeal held that the process instituted by the bank was not a proceeding for punishing a crime.
+It was a process for the purpose of enforcing civil rights.
+Mr Jones submitted that the position is different with a restraint order under section 41, because it is not an order obtained in order to protect an applicants civil rights but is an order obtained by the state in the course of a criminal investigation.
+The Common Serjeant and the Court of Appeal rejected this argument and I agree with them.
+It is necessary to look at the nature and purpose of the order.
+It is fallacious to argue that because the order was made by a criminal court, rather than a civil court, disobedience to the order amounts to a crime, whereas it would not have been a crime to disobey a similar order imposed by a civil court.
+The question whether a contempt is a criminal contempt does not depend on the nature of the court to which the contempt was displayed; it depends on nature of the conduct.
+To burst into a court room and disrupt a civil trial would be a criminal contempt just as much as if the court had been conducting a criminal trial.
+Conversely, disobedience to a procedural order of a court is not in itself a crime, just because the order was made in the course of criminal proceedings.
+To hold that a breach of a procedural order made in a criminal court is itself a crime would be to introduce an unjustified and anomalous extension of the criminal law.
+Civil contempt is not confined to contempt of a civil court.
+It simply denotes a contempt which is not itself a crime.
+Conclusion
+I would dismiss the appeal and would answer the questions certified by the (i) a contempt of court constituted by a breach of a restraint order made under section 41 of POCA is not itself a crime. (ii) section 151A of the Extradition Act 2003 and article 18 of the United Kingdom United States Extradition Treaty 2003 do not preclude a court from dealing with the person for such a contempt when that person has been extradited to the United Kingdom in respect of criminal offences.
+Court of Appeal as follows:
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+This appeal is the lead case in a number of appeals concerned with the interpretation of the phrase in section 6(1) of the Social Security Contributions and Benefits Act 1992, [w]here in any tax week earnings are paid to or for the benefit of an earner.
+It focuses on the meaning of the word earnings in that phrase.
+The context is the payment of an employers contribution to a Funded Unapproved Retirement Benefits Scheme.
+Until 2006 such schemes were commonly used to top up sums available through tax approved pension schemes.
+The facts
+On 11 April 2002 the appellant company (FML) established by trust deed a retirement benefit scheme to provide relevant benefits (as defined in section 612 of the Income and Corporation Taxes Act 1988) to its employees and directors.
+The trust provided that, upon a members retirement from service, the trustees were to apply the accumulated fund in providing the member with a pension for life or such other relevant benefits as they might agree with him.
+On the members death the trustees were to realise the accumulated fund and apply the net proceeds to or for the benefit of a defined discretionary class of beneficiary.
+On the same day Mr McHugh, a shareholder and director of FML, asked to become a member of the scheme.
+He informed the trustees that he wished them to exercise their discretion in favour of his wife in the event of his death.
+FML made an initial cash contribution to the scheme of 1,000 and transferred to it Treasury Stock with the nominal value of 162,000, both for Mr McHughs benefit.
+He has been the only member of the scheme.
+He has received no relevant benefits from the scheme.
+When the transfers were made to the scheme Mr McHugh was 54 years old.
+He had no vested interest in the assets of the scheme because the retirement age under the scheme was defined as meaning: the date between the 50th birthday and the 85th birthday notified to a Member by the Employer as the date on which the Members benefits will become payable.
+Such date may be varied from time to time by agreement in writing between the Employer and the Member.
+FML specified Mr McHughs retirement age to be his 60th birthday.
+But, as HMRC pointed out, he controlled FML and was in a position to bring forward his retirement date for the purposes of the trust deed.
+The Issue
+The principal issue which we address is whether the transfer of the cash and Treasury Stock to the scheme was a payment of earnings to or for the benefit of Mr McHugh within the meaning of section 6 of the 1992 Act.
+It was agreed that the payment was for his benefit.
+But was it earnings for the purposes of that section?
+The prior proceedings
+FML appealed against HMRCs decision that it was liable to pay Class 1 National Insurance Contributions on the value of the transfer.
+The Upper Tribunal (Tax and Chancery Chamber) (Floyd J and Judge Avery Jones) heard the appeal at first instance.
+It delivered a judgment on 21 February 2011 allowing the appeal.
+HMRC appealed to the Court of Appeal (Arden LJ, Rimer LJ and Ryder J).
+By a judgment dated 30 May 2012 the Court of Appeal by a majority (Arden LJ and Ryder J) allowed the appeal and restored the decision of HMRC.
+Before this court Mr Bramwell presented FMLs appeal on a much narrower front than the case which had been debated before the Court of Appeal.
+Until his oral submissions to us, FMLs case had been that earnings in NIC legislation covered the same ground as emoluments in income tax legislation.
+FML abandoned that position and focused principally on the contingent nature of Mr McHughs interest in the transferred assets.
+In short, Mr Bramwell accepted that earnings had a wider meaning than emoluments in income tax legislation.
+His submission was that the payment of earnings under section 6 of the 1992 Act did not extend to the employers transfer to a trust of funds or assets in which the earner had at the time of the transfer only a contingent interest.
+We, and Mr Jones for HMRC, therefore had to address a different argument from that advanced before the Court of Appeal.
+Counsel for both parties argued their cases very ably.
+Discussion
+The legislative history that lies behind our present system of national insurance shows that Mr Bramwells change of position was correct: National Insurance Contributions (NICs) have been levied on a basis which is different from the emoluments on which income tax has been raised.
+Mr David Lloyd George, when Chancellor of the Exchequer in 1911, introduced the first compulsory system of insurance against illness and unemployment in the United Kingdom: the National Insurance Act 1911.
+The Act fixed contributions rates by reference to the level of an employed persons remuneration (section 4 and Second Schedule).
+Lord Beveridge carried out a substantial review of the by then expanded system of national insurance and reported in 1942.
+The Beveridge Report (Cmnd 6404) was implemented by the National Insurance Act 1946, which established the National Insurance Fund, into which workers, employers and the state were to contribute.
+Employers and employed persons were required to make weekly contributions into the National Insurance Fund to pay benefits to the earners and their dependants.
+Contributions were paid in respect of earnings.
+In section 78 of the 1946 Act earnings were interpreted to include any remuneration or profit derived from a gainful occupation.
+The current provision for NICs is contained in the 1992 Act and subordinate legislation.
+Sections 6 to 9 of that Act provide, in relation to an earner employed under a contract of service, that where in any tax week earnings are paid to or for his benefit, the employed earner shall pay a primary Class 1 contribution and his employer will pay a secondary Class 1 contribution (both subject to specified thresholds).
+Section 3 of the 1992 Act provides that earnings includes any remuneration or profit derived from an employment.
+In my view it is significant that Parliament in the1946 Act, chose to use the word earnings rather than emoluments, which had been a term used in income tax legislation with a definition which had remained substantially unchanged since the Income Tax Act 1842.
+The latter word had been the subject of judicial interpretation.
+In particular, in Tennant v Smith [1892] AC 150, the case of the Montrose bank manager whose employer gave him free accommodation in a bank house which he was required to occupy, the House of Lords held that the Inland Revenue could not charge income tax on the value of the accommodation because the employee could not convert the benefit into money.
+The House of Lords held that emoluments were confined to actual money payments and to benefits in kind which were capable of being turned into money by the recipient.
+See also Lord Reids explanation of the case in Heaton v Bell [1970] AC 728, 744 745.
+By contrast, from the outset, the word earnings in NICs legislation has included benefits in kind which the recipient could not convert into money there and then.
+Part I of the First Schedule to the 1946 Act, which set out the contribution rates of employed persons, had a rate for earners earning remuneration of under 30 shillings per week and a higher rate for those earning remuneration above that sum.
+Like the 1911 Act (section 4 and Second Schedule) it treated remuneration, which, as I have said, formed part of the definition of earnings in section 78, as including the provision of board and lodging by providing: For the purpose of this and Part II of this Schedule [which set out employers rates] a person shall be deemed to be earning remuneration at a weekly rate of thirty shillings or less if, but only if, his remuneration does not include the provision of board and lodging by the employer and the rate of the remuneration does not exceed thirty shillings a week, and to be earning remuneration at a weekly rate exceeding thirty shillings in any other case.
+Since then, primary and subordinate legislation pertaining to NICs has made express provision for benefits in kind to be disregarded when Parliament has not wanted such earnings to be taken into account in the calculation of NICs.
+In the National Insurance Act 1959, which introduced a graduated pension scheme on top of flat rate benefits, benefits in kind which the recipient could not convert into moneys worth were excluded from the calculation of graduated contributions by the device (in section 2(1)) of deeming remuneration to include only emoluments assessable to income tax under Schedule E.
+That arrangement was preserved in the National Insurance Act 1965 (section 4(2)).
+But in 1975 the basic scheme and graduated scheme were replaced by a new scheme which provided for graduated contributions related to the level of earnings between a lower earnings limit and an upper earnings limit.
+The link between graduated contributions and emoluments for income tax purposes was abolished.
+Since then, subordinate legislation has provided for the disregard of, among others, any payment in kind or by way of provision of board or lodging (the Social Security (Contributions) Regulations: SI 1973/1264, regulation 17(1)(d); SI 1975/492, regulation 17(1)(d); SI 1979/591, regulation 19(1)(d); and now SI 2001/1004, para 1 of Part II of Schedule 3 see para 13 below).
+In 1985 the upper earnings limit was removed in relation to employer contributions, and since 6 April 2003 employees have been subject to an additional surcharge on earnings above the upper earnings limit (currently 2%).
+Under the 1992 Act and current subordinate legislation, the Social Security (Contributions) Regulations 2001 (SI 2001/1004) as amended, a similar arrangement of using earnings as the basis of calculating liability to NICs and disregarding payments in kind has been maintained.
+Thus in Schedule 3 to the 2001 Regulations (Part II para 1) it is provided: A payment in kind, or by way of the provision of services, board and lodging or other facilities is to be disregarded in the calculation of earnings.
+It is not appropriate to interpret an Act of Parliament by reference to subordinate legislation which was made years after the primary legislation (Deposit Protection Board v Barclays Bank plc [1994] 2 AC 367, 397 per Lord Browne Wilkinson; see also Hanlon v The Law Society [1981] AC 124, 193 194 per Lord Lowry).
+But that is not my purpose.
+I refer to the 2001 Regulations simply to demonstrate that the scheme of NICs legislation by which earnings includes non convertible benefits in kind unless they are disregarded, either expressly or by necessary implication, has existed at least since 1946.
+As FML accepts the proposition that earnings in NICs legislation is not to be equated with emoluments in income tax legislation, most of the arguments which engaged the Upper Tribunal and the Court of Appeal fall away.
+Instead, the debate has focused on whether FML had paid earnings to or for the benefit of Mr McHugh when it made the transfer to the trust at a time when Mr McHughs interest in the assets of the trust was only a contingent one which might have been defeated by his death before his specified retirement age.
+As I have said, both parties agreed that the transfer to the trust had been for the benefit of Mr McHugh.
+The question was: was the transfer the payment of earnings?
+On this narrow issue, HMRCs stance before this court was remarkable.
+Because of the assumptions on which the subordinate legislation had been framed, Mr Jones had to submit that earnings are paid to an earner both when assets are transferred to a pension scheme to be held on a trust and also when payments are made from the trust fund.
+HMRC looked to the payment and not to what the earner received.
+HMRC argued that the payment into the trust fund was earnings because it was a sum paid as the quid pro quo for past or future services.
+It was part of Mr McHughs remuneration.
+The sum went to a trust fund which was solely for the benefit of Mr McHugh and his wife.
+Mr McHugh, it was submitted, was immediately better off because he had the hope of receiving the trust fund in the future, and his family would benefit if he did not survive until his retirement age.
+Payments to him out of the trust fund would as a matter of principle also be earnings when made because they also were payments to him in respect of his employment.
+On this approach, double counting was avoided only by Part VI of Schedule 3 to the 2001 Regulations which disregards, among others, payments by way of pension (para 1) and payments by way of relevant benefits pursuant to an unapproved retirement benefits scheme (para 4).
+There are three reasons why I think that HMRCs argument is wrong.
+The first and principal reason is that the ordinary man on the underground would consider it to be counter intuitive that a person would earn remuneration both when his employer paid money into a trust to create a fund for his benefit and again when at a later date that trust fund was paid out to him.
+The argument would in principle apply also when a company gave an employee a bonus, which was put into a trust or in an escrow fund and was payable at a future date only if the company performed to a specified level by then: he would earn the bonus twice.
+I am reluctant to attribute such a view to Parliament absent clear words or necessary implication, of which there are neither.
+If one gives words their ordinary meaning, it is clear that a retired earner receives earnings in respect of his employment in the form of deferred remuneration when he receives his pension.
+So too does an earner when he receives his deferred bonus.
+In each case I would characterise the payment from the trust or escrow fund as deferred earnings.
+It follows that the payment into the trust or escrow fund would not be earnings.
+Secondly, it is only by looking exclusively to what was paid and ignoring what the earner received that HMRCs view can be sustained.
+But such an interpretation of section 6(1) of the 1992 Act denudes the word earnings of any meaning, so that the phrase earnings are paid would amount to payments are made in respect of any one employment.
+Earnings in this context are remuneration derived from the employment.
+The use of the word earnings points the reader towards what the employee obtains from his employment.
+Looking to what the earner receives avoids the counter intuitive result.
+The third and subordinate reason relates to the method of computation.
+HMRC, by treating the payment into the trust as earnings, fail to take into account the existence of the contingency.
+If Mr McHugh had died before his retirement date, the trustees would have realised the accumulated fund and paid the proceeds to a member of the defined discretionary class of beneficiary probably his wife.
+One must ask: what did Mr McHugh receive through the transfer? It was not the cash and Treasury Stock.
+The trustees received the assets transferred to them on the trusts of the fund and not unconditionally for Mr McHugh.
+The transfer gave him only the entitlement to a future pension or relevant benefits once a condition his reaching retirement age had been purified.
+It does not matter that Mr McHugh could not immediately convert his entitlement into money because, as I have said, non convertible benefits in kind are in principle earnings in the NICs legislation.
+But the hypothetical value to be attributed to Mr McHughs entitlement would not be the value, at the date of the transfer, of the assets paid into the fund.
+Rather it would be the value of his contingent right to the trust fund such as it would be at his retirement date.
+That calculation would not be a simple exercise.
+The valuer would have to allow for both the contingency of the earners pre deceasing the specified retirement date and the uncertainty of the trustees performance in managing the fund until that date.
+That would not be the same as the value of the cash and assets in the week in which the transfer was made.
+HMRCs approach, by treating the payment into the trust fund as Mr McHughs earnings, fails to address what it was that he received when the transfer was made.
+In my view therefore the transfer to the trust was not the payment of earnings to or for the benefit of Mr McHugh within the meaning of section 6(1) of the 1992 Act.
+Having reached this view on the issue which the parties presented in this appeal, I comment briefly on some of the cases to which counsel referred.
+This case was presented as a test case on the issue of principle.
+No argument was advanced as to whether a payment into a pension or bonus fund might properly be analysed as a payment out of the earners salary as in Smyth v Stretton (1904) 5 TC 36.
+Mr Jones stated that HMRC might take that point in an appropriate case.
+Edwards v Roberts (1935) 19 TC 618 assists in this case not because it is correct to equate earnings in NICs legislation with emoluments in income tax legislation but because of its application of the general law in relation to a contingent interest and its focus on what an employee receives.
+In that case an employee received a salary and also, if he remained in employment for more than five years, a right to receive at the end of a subsequent financial year part of the capital of a trust fund into which his employer paid a proportion of its annual profits.
+Lord Hanworth MR stated (p 638): [U]nder these circumstances there could not be said to have accrued to this employee a vested interest in these successive sums placed to his credit, but only that he had a chance of being paid a sum at the end of six years if all went well.
+I would therefore allow the appeal and reinstate the judgment of the Upper
+HMRC submitted and the majority of the Court of Appeal accepted that Collins J had been in error in Tullett & Tokyo Forex International Ltd v Secretary of State for Social Security [2000] EWHC (Admin) 350; [2000] All ER (D) 739 because he held that NICs were payable on what the employee receives.
+For the reasons set out above, I disagree with HMRCs submission.
+Conclusion
+Tribunal.
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+These proceedings arise out of the admitted and continuing failure by the United Kingdom since 2010 to secure compliance in certain zones with the limits for nitrogen dioxide levels set by European law, under Directive 2008/50/EC.
+The legal and factual background is set out in the judgment of this court dated 1 May 2013 [2013] UKSC 25, and need not be repeated.
+For the reasons given in that judgment, the court referred certain questions to the Court of Justice of the European Union (CJEU).
+That court has now answered those questions in a judgment dated 14 November 2014 (Case C 404/13).
+It remains to consider what further orders if any should be made in the light of those answers.
+Central to the referred questions were the interpretation of, and relationship between, three provisions of the Directive: articles 13, 22 and 23.
+Article 13 laid down limit values for the protection of human health, and provided that in respect of nitrogen dioxide, the limit values specified in annex XI may not be exceeded from the dates specified therein, the relevant date being 1 January 2010.
+Article 22 provided a procedure for the postponement of the compliance date for not more than five years in certain circumstances and subject to specified conditions.
+Article 23 imposed a general duty on member states to prepare air quality plans for areas where the limit values were not met.
+By the second paragraph of article 23(1), in cases where the attainment deadline (was) already expired, the air quality plans were required to set out appropriate measures, so that the exceedance period can be kept as short as possible.
+The required contents of air quality plans prepared under article 23 were laid down by annex XV section A.
+In addition, where an application for an extension of the deadline was made under article 22, the plan was to be supplemented by the information listed in annex XV section B. The additional requirements were, first, information concerning the status of implementation of 14 listed Directives, not all directly relevant to nitrogen dioxide emissions (para 2), and, secondly, information on all air pollution abatement measures that have been considered at appropriate local, regional or national level for implementation in connection with the attainment of air quality objectives, including five specified categories of measures, such as for example: (d) measures to limit transport emissions through traffic planning and management (including congestion pricing, differentiated parking fees or other economic incentives; establishing low emission zones); (para 3)
+When making the reference, this court determined to make a declaration of the breach of article 13, notwithstanding its admission by the Government.
+Differing in this respect from the Court of Appeal, this court thought it appropriate to do so, both as a formal statement of the legal position, and also to make clear that, regardless of arguments about articles 22 and 23 of the Directive, the way is open to immediate enforcement action at national or European level.
+The referred questions and the CJEUs response
+The questions referred by this court were as follows: (1) Where, under the Air Quality Directive (2008/50/EC) (the Directive), in a given zone or agglomeration conformity with the limit values for nitrogen dioxide was not achieved by the deadline of 1 January 2010 specified in annex XI of the Directive, is a member state obliged pursuant to the Directive and/or article 4 TEU to seek postponement of the deadline in accordance with article 22 of the Directive? (2) If so, in what circumstances (if any) may a member state be relieved of that obligation? (3) To what extent (if at all) are the obligations of a member state which has failed to comply with article 13 affected by article 23 (in particular its second paragraph)? (4) In the event of non compliance with articles 13 or 22, what (if any) remedies must a national court provide as a matter of European law in order to comply with article 30 of the Directive and/or article 4 or 19 TEU?
+The CJEU, for reasons it did not clearly explain, decided to reformulate the first two questions: By its first and second questions, which it is appropriate to consider together, the referring court asks, in essence, (i) whether article 22 of Directive 2008/50 must be interpreted as meaning that, where conformity with the limit values for nitrogen dioxide laid down in annex XI to that Directive cannot be achieved in a given zone or agglomeration of a member state by 1 January 2010, the date specified in annex XI, that State is, in order to be able to postpone that deadline for a maximum of five years, obliged to make an application for postponement in accordance with article 22(1) of Directive 2008/50 and (ii) whether, if that is the case, the State may nevertheless be relieved of that obligation in certain circumstances. (para 24, emphasis added) As will be seen, the reformulation of the first two questions, in particular by the inclusion of the emphasised words, has introduced a degree of ambiguity which it had been hoped to avoid in the original formulation.
+This has had the unfortunate effect of enabling each party to claim success on the issue.
+Fortunately, for reasons I will explain, it is unnecessary to making a final ruling on this difference, or to make a further reference for that purpose.
+The courts answers to the three questions as so reformulated were: 1.
+Article 22(1) of Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe must be interpreted as meaning that, in order to be able to postpone by a maximum of five years the deadline specified by the Directive for achieving conformity with the limit values for nitrogen dioxide specified in annex XI thereto, a member state is required to make an application for postponement and to establish an air quality plan when it is objectively apparent, having regard to existing data, and notwithstanding the implementation by that member state of appropriate pollution abatement measures, that conformity with those values cannot be achieved in a given zone or agglomeration by the specified deadline.
+Directive 2008/50 does not contain any exception to the obligation flowing from article 22(1). 2.
+Where it is apparent that conformity with the limit values for nitrogen dioxide established in annex XI to Directive 2008/50 cannot be achieved in a given zone or agglomeration of a member state by 1 January 2010, the date specified in that annex, and that member state has not applied for postponement of that deadline under article 22(1) of Directive 2008/50, the fact that an air quality plan which complies with the second subparagraph of article 23(1) of the Directive has been drawn up, does not, in itself, permit the view to be taken that that member state has nevertheless met its obligations under article 13 of the Directive. 3.
+Where a member state has failed to comply with the requirements of the second subparagraph of article 13(1) of Directive 2008/50 and has not applied for a postponement of the deadline as provided for by article 22 of the Directive, it is for the national court having jurisdiction, should a case be brought before it, to take, with regard to the national authority, any necessary measure, such as an order in the appropriate terms, so that the authority establishes the plan required by the Directive in accordance with the conditions laid down by the latter.
+The parties have made written and oral submissions on the appropriate response to the CJEU decision.
+In summary, Mr Jaffey for ClientEarth invites the court: i) to confirm, in accordance with their interpretation of the CJEU judgment, that the article 22 time extension procedure was mandatory, and to quash the existing air quality plan which was prepared under an error of law in that respect; ii) to direct the production within three months of a new air quality plan under article 23(1) demonstrating how the exceedance period will be kept as short as possible, and complying with the additional and stricter requirements of annex XV section B.
+In response Miss Smith for the Secretary of State submits that the correct interpretation of the CJEU decision is that the article 22 procedure was not mandatory, and that, given the stated intention of the Secretary of State to prepare updated plans by the end of the year, no further relief is necessary or appropriate.
+The Commissions submissions to the CJEU
+There was no Advocate Generals opinion in this case to provide background to the courts characteristically sparse reasoning.
+However, the European Commission had presented detailed Observations, which help to fill the gap.
+Their submission contains a valuable discussion of the legal and factual background to the relevant provisions of the Directive and their objectives, before giving the Commissions proposed responses to the referred questions.
+They give a much clearer answer to the first two questions than the court ostensibly in favour of the Government, but in terms which may be regarded as making it a somewhat Pyrrhic victory in its practical consequences.
+Their answers to the third and fourth questions are in substance the same as those given by the court, in essence for the same reasons albeit more fully stated.
+The Commission explained that the limit values for nitrogen dioxide were previously defined in Directive 99/30/EC in April 1999, which also fixed the date for compliance at 1 January 2010.
+In that respect the 2008 Directive made no change.
+However, a review in 2005 had shown that compliance would be problematic for a significant number of states.
+In recognition of this, the 2008 Directive introduced, in article 22, the possibility of an application for an extension of up to five years, subject to a number of substantive requirements and procedural safeguards (para 22), and subject to approval and supervision by the Commission.
+Although the choice of measures was left to member states, annex XV section B lays down a new requirement for a very detailed scientific examination and consideration of all available measures, and entailing a degree of effort by a member state to demonstrate that it will introduce and implement the most appropriate measures to tackle the anticipated delay in compliance (para 25).
+Article 22 was thus conceived as derogation, albeit one subject to significant procedural and substantive requirements and safeguards (para 27).
+Where a member had not applied for derogation for particular zones, but the limits were exceeded, then article 13 was breached and article 23 applied.
+The Commission pointed out that in such cases, the state would have been already bound to take all necessary measures to secure compliance by January 2010, and would have had 11 years (from 1999) to do so: In the Commission's view, therefore, the second subparagraph of article 23(1) must be seen as an emergency mechanism that applies where there is already a serious breach of Union law that results in grave dangers to human health.
+In that regard, it must also be seen as a specific implementation of article 4(3) TEU, where a member state is already in breach of Union law and is already bound to remedy that breach. (para 34)
+In the Commissions view, article 22 was the only lawful solution offered by the legislator to member states facing a problem of compliance (para 37).
+They stressed the key point that air quality plans produced under article 22 have to meet the stricter conditions laid down by annex XV section B: If a member state could circumvent such conditions by using article 23 instead of article 22 in situations where exceedances were predictable, this would result in a kind of self service derogation (derogation la carte) and in an erosion in oversight, enforcement and in the standard of legal protection of public health that would be contrary to both the structure and the spirit of the Directive. (para 39)
+Commenting on the compliance situation in the United Kingdom, the Commission observed that there appeared to have been a choice of less expensive and intrusive measures than those that would be required to put an end to a string of continuous breaches of the limit values.
+The plans submitted showed that for the relevant zones the UK only expects compliance to be achieved for each zone between 2015 and 2020 or even between 2020 and 2025 (London) (para 43).
+In answer to the first two questions, the Commission expressed the view that the article 22 procedure was not mandatory, but was foreseen as an optional derogation for member states to obligations that already existed (para 48).
+The consequence was that the United Kingdom was not obliged, in terms of TEU article 4(3), to apply for a derogation; but rather it was obliged to adopt all necessary measures to put an end to the infringement of article 13 as soon as possible.
+The infringement for article 13 resulted, not from its decision not to apply for a derogation, but from its failure to adopt adequate measures to achieve compliance by January 2010 (para 53).
+With regard to the third question (the relationship between articles 13 and 23), the Commission emphasised that, if the state chose not to apply for derogation under article 22, it remained under a mandatory obligation under article 23 to prepare air quality plans showing measures appropriate to keep the exceedance period as short as possible.
+Noting the emergency character of plans drawn up under the second subparagraph, it commented on the relevance of annex XV section B: The obligation in the second subparagraph of article 23(1), in the case of exceedances for which a derogation has not been granted, requires member states to achieve a very precise result compliance with the limit values for nitrogen dioxide in the shortest possible period of time.
+In other words, the Directive requires the member state to bring the infringement of article 13 to as swift an end as possible by adopting measures that would be appropriate for the specific zone or agglomeration and that would most swiftly and concretely tackle the specific problems in that area.
+These measures, as opposed to the ones referred to in annex XV section B, will have to tackle any problems in concreto, for each zone (para 62) In other words, the obligation under article 23(1) was not less onerous than annex XV section B, but more specific.
+As the Commission observed: It would be perverse if article 23(1) were treated as requiring a lesser effort from member states than article 22. (paras 64)
+The Commission also noted ClientEarths concerns that the plans submitted by the United Kingdom were simply not ambitious enough to address the problem in as short a time as possible (para 65).
+This view seemed to be confirmed by Mitting Js observation in the High Court that a mandatory order would impose upon taxpayers and individuals a heavy burden of expenditure which would require difficult political choices to be made.
+The Commission noted the European courts rejection of similar arguments of impossibility in a line of cases under the air quality Directives, beginning with (Case C 68/11) Commission v Italy (19 December 2012); and, by analogy, in an earlier series of cases relating to the bathing water Directive, beginning with (Case C 56/90) Commission v United Kingdom [1993] ECR I 4109.
+The Commission observed: In each of these cases, the court found no obstacle to rely on annual bathing water reports to declare failures, finding unfounded any arguments as to difficulties faced by member states. (para 79)
+In line with these observations, the Commissions answer to the third question was that, where a member state finds itself in breach of article 13, it may either request and obtain a derogation under article 22, or comply with article 23(1) by preparing plans to bring the breach to an end as soon as possible: That is to say that the air quality plan must foresee effective, proportionate and scientifically feasible measures to address the specific emissions problems in the relevant zone as swiftly as possible, subject to judicial review by the domestic courts.
+A failure by a member state to do so would result in the infringement also [of] article 23(1) of the Directive, alongside article 4(3) TEU. (para 84)
+With regard to the fourth question (the duty of the national court), the Commission noted that the United Kingdoms claim that it was not possible to achieve earlier compliance had not yet been tested in the national court.
+It regarded this as a particularly serious question where there was an established breach of article 13 resulting in a clear and grave hazard to human health (para 87).
+It reviewed the authorities on the right of individuals to invoke Directives before national courts, and the duty of the latter to provide appropriate remedies for their breach.
+It was the duty of national courts to ensure that those directly concerned by a violation of article 13 were in a position to require the competent authorities either to seek and obtain a derogation under article 22, or, if they chose not to do so, to adopt and communicate to the Commission air quality plans, compliant with article 23(1), so as to deal with the specific problems in the relevant zones as swiftly as possible (para 113).
+Non compliance the present position
+Before discussing the proposed responses to the CJEU decision, it is appropriate to record the present position in respect of compliance with the Directive, as summarised in the frank and helpful evidence of Jane Barton on behalf of the Secretary of State.
+The latest information, published in July 2014, shows a significant deterioration since the case was last before the court (and as compared to the information considered in the Commissions submission): In July 2014, the UK Government published updated projections for concentrations and expected dates for compliance with the annual mean limit values in the Air Quality Directive.
+These projections showed that compliance would be achieved later than previously projected.
+The previous projections for NO2 published in September 2011 show 27 zones compliant by 2015, 42 zones compliant by 2020 and all 43 zones compliant by 2025.
+The updated projections up to 2030 show five out of 43 zones compliant by 2015, 15 zones by 2020, 38 by 2025 and 40 by 2030.
+The remaining three zones would not be compliant by 2030 (Greater London Urban Area, West Midlands Urban Area and West Yorkshire Urban Area).
+It is fair to add that the failures of compliance are not confined to the United Kingdom.
+Analysis of 2013 air quality compliance data reported by member states indicated that 17 member states reported exceedances of the hourly mean limit value.
+One of the reasons for the worsening position is said to be failure of the European vehicle emission standards for diesel vehicles to deliver the expected emission reductions of oxides of nitrogen.
+Ms Barton explains: The main reason for this is that the real world emission performance of a vehicle has turned out to be quite different to how the vehicle performs on the regulatory test cycle.
+Vehicles are emitting more NOx than predicted during real world operation.
+This disparity has meant the expected reductions from the introduction of stricter euro emission standards have not materialised.
+In fact, as is recognised in the new Clean Air Programme for Europe, average real world NOx emissions from Euro 5 diesel cars type approved since 2009 now exceed those of Euro I cars type approved in 1992.
+She adds that this is a problem which cannot easily be addressed by individual member states, since they cannot unilaterally set stricter vehicle emission standards than those set at EU level.
+The European Commission, with the support of the UK Government, has made a proposal to introduce a new test procedure from 2017 to assess NOx emissions of light duty diesel vehicles under real world driving conditions.
+Even if some aspects of the problem may be affected by matters beyond the control of individual states, this has not led to any loosening of the limit values set by the Directive, which remain legally binding.
+In February 2014, the Commission launched a formal infringement proceeding against the UK for failure to meet the nitrogen dioxide limit values.
+It is not clear why for the moment only the UK has been selected for such action.
+It may have been triggered by the declaration made by this court in 2013, which was referred to in the Commissions press release, and the detailed consideration given by the Commission in connection with the CJEU case.
+Without sight of the correspondence with the Commission (which is said to be confidential), it is not possible to comment on the scope of that action or its likely timing and outcome.
+However, as is clear from the answer to the fourth question, any enforcement action taken by the Commission does not detract from the responsibility of the domestic courts for enforcement of the Directive within this country.
+It is in any event accepted by the Secretary of State that the air quality plans which were before the court in 2011 will need to be revised to take account of the new information, and of new measures to address the problems.
+It is intended that these should be submitted to the European Commission, following consultation, by the end of this year.
+It is estimated that on average around 80% of nitrogen dioxide emissions at sites exceeding the EU limit values come from transport, so that developing effective transport measures is regarded as a key priority for work and investment.
+According to Ms Barton, the Government has since 2011 committed over 2 billion in measures to reduce transport emissions.
+Other initiatives are being developed at local level.
+One example is what she describes as a game changing proposal by the Mayor of London, published on 27 October 2014, for an Ultra Low Emission Zone (ULEZ) in central London from 2020.
+One of the issues for consideration in the appeal is whether these proposals should be taken on trust, or should be subject to some measure of court enforcement.
+Discussion
+These proceedings were commenced in July 2011, shortly following the publication in June of air quality plans for consultation under article 23, which included an indication of the zones for which the Secretary of State did not intend to apply under article 22 because compliance within the extended time limit was considered impossible.
+At that time the possibility of an effective application under article 22 for a postponement to January 2015 remained a live issue, at least in theory.
+It is understandable therefore that the focus of the claim was on that article.
+Unfortunately, the time taken by the proceedings, including the reference to the CJEU, has meant that article 22, with one possible exception, is of no practical significance.
+An extension to January 2015, the maximum allowed under that article, is of no use to the Secretary of State.
+Indeed, it may have been in anticipation of this position that the CJEU felt able to avoid a direct answer.
+The possible exception relates to the requirements of annex XV section B, which would apply to a plan produced under article 22, but not, in terms, under article 23.
+However, the difference is more apparent than real.
+The purpose of the listed requirements under article 22 appears closely related to the procedure envisaged by the article, which involves approval and supervision by the Commission.
+As the Commission explained, the requirements of article 23(1) are no less onerous, but may be more specific than those under article 22.
+They are also subject to judicial review by the national court, which is able where necessary to impose such detailed requirements as are appropriate to secure effective compliance at the earliest opportunity.
+A formulaic recitation of steps taken under the long list of Directives in paragraph 2 of section B may be of little practical value.
+Mr Jaffey realistically limited his claim to paragraph 3 of section B, which he described as a checklist of measures which had to be considered in order to demonstrate compliance with either article.
+I agree with that approach, but do not regard it as necessary to spell it out in an order of the court.
+In those circumstances I need comment only briefly on the courts answer to the first two questions.
+As already noted, the problem with the courts reformulation was that it introduced ambiguity in both question and answer.
+The court did not say whether the state was or was not obliged to make the application; but simply that it was obliged to so in order to be able to postpone the deadline specified by the Directive .
+This formulation appeared to start from the assumption that the state was seeking to extend the deadline, and to leave open the question whether it was obliged to do so.
+On the other hand, the concluding statement that Directive 2008/50 does not contain any exception to the obligation flowing from article 22(1) might be thought to imply an unqualified obligation in all circumstances.
+Before this court, both counsel have bravely attempted their own linguistic analysis of the reasoning to persuade us that the answer is clearer than it seems at first sight.
+I am unpersuaded by either.
+Understandably neither party wanted us to make a new reference, although that might be difficult to avoid if it were really necessary for us to reach a determination of the issues before us.
+If I were required to decide the issue for myself, I would see considerable force in the reasoning of the Commission, which treats article 22 as an optional derogation, but makes clear that failure to apply, far from strengthening the position of the state, rather reinforces its essential obligation to act urgently under article 23(1), in order to remedy a real and continuing danger to public health as soon as possible.
+For the reasons I have given I find it unnecessary to reach a concluded view.
+The remaining issue, which follows from the answers to the third and fourth questions, is what if any orders the court should now make in order to compel compliance.
+In the High Court, Mitting J considered that compliance was a matter for the Commission: If a state would otherwise be in breach of its obligations under article 13 and wishes to postpone the time for compliance with that obligation, then the machinery provided by article 22(1) is available to it, but it is not obliged to use that machinery.
+It can, as the United Kingdom Government has done, simply admit its breach and leave it to the Commission to take whatever action the Commission thinks right by way of enforcement under article 258 of the Treaty on the Functioning of the European Union. (para 12) The Court of Appeal adopted the same view.
+That position is clearly untenable in the light of the CJEUs answer to the fourth question.
+That makes clear that, regardless of any action taken by the Commission, enforcement is the responsibility of the national courts.
+Notwithstanding that clear statement, Miss Smith initially submitted that, in the absence of any allegation or finding that the 2011 plans were as such affected by error of law (apart from the interpretation of article 22), there is no basis for an order to quash them, nor in consequence for a mandatory order to replace them.
+I have no hesitation in rejecting this submission.
+The critical breach is of article 13, not of article 22 or 23, which are supplementary in nature.
+The CJEU judgment, supported by the Commissions observations, leaves no doubt as to the seriousness of the breach, which has been continuing for more than five years, nor as to the responsibility of the national court for securing compliance.
+As the CJEU commented at para 31: Member states must take all the measures necessary to secure compliance with that requirement [in article 13(1)] and cannot consider that the power to postpone the deadline, which they are afforded by article 22(1) of Directive 2008/50, allows them to defer, as they wish, implementation of those measures.
+Furthermore, during the five years of breach the prospects of early compliance have become worse, not better.
+It is rightly accepted by the Secretary of State that new measures have to be considered and a new plan prepared.
+In those circumstances, we clearly have jurisdiction to make an order.
+Further, without doubting the good faith of the Secretary of States intentions, we would in my view be failing in our duty if we simply accepted her assurances without any legal underpinning.
+It may be said that such additional relief was not spelled out in the original application for judicial review.
+But the delay and the consequent change of circumstances are not the fault of the claimant.
+That is at most a pleading point which cannot debar the claimant from seeking the appropriate remedy in the circumstances as they now are, nor relieve the court of its own responsibility in the public interest to provide it.
+In normal circumstances, where a responsible public authority is in admitted breach of a legal obligation, but is willing to take appropriate steps to comply, the court may think it right to accept a suitable undertaking, rather than impose a mandatory order.
+However, Miss Smith candidly accepts that this course is not open to her, given the restrictions imposed on Government business during the current election period.
+The court can also take notice of the fact that formation of a new Government following the election may take a little time.
+The new Government, whatever its political complexion, should be left in no doubt as to the need for immediate action to address this issue.
+The only realistic way to achieve this is a mandatory order requiring new plans complying with article 23(1) to be prepared within a defined timetable.
+Although Mr Jaffey initially pressed for a shorter period than that proposed by the Secretary of State, he made clear that his principal objective was to secure a commitment to production of compliant plans within a definite and realistic timetable, supported by a court order.
+In the circumstances, I regard the timetable proposed by the Secretary of State as realistic.
+There should in any event be liberty to either party to apply to the Administrative Court for variation if required by changes in circumstances.
+Finally, I should mention a further important issue which we have not been called upon to determine as part of these proceedings, but which may well arise in connection with the new plans.
+This concerns the interpretation of the words as short as possible in article 23(1).
+The judgments of the European court noted by the Commission (para 17 above), in particular the Italian case (relating to the precursor of article 13 itself) indicate that the scope for arguing impossibility on practical or economic grounds is very limited.
+Miss Smith sought to distinguish the Italian case, on the grounds that it related to article 13, not article 23.
+Mr Jaffey objects that this argument takes insufficient account of the direct relationship between the two articles, as underlined by both the Commission and the CJEU.
+If this remains an issue in relation to the new air quality plans, when they are published for consultation, it may call for resolution by the court at an early stage to avoid further delay in the completion of compliant plans.
+That is a further factor which makes it desirable that the new plans should be prepared under a timetable approved by the court, with liberty to apply for the determination of such issues as and when they arise in the course of the production of the plan, without the need for the expense and delay of new proceedings.
+For these reasons, I would allow the appeal.
+In addition to the declaration already made, I would make a mandatory order requiring the Secretary of State to prepare new air quality plans under article 23(1), in accordance with a defined timetable, to end with delivery of the revised plans to the Commission not later than 31 December 2015.
+There should be provision for liberty to apply to the Administrative Court for variation of the timetable, or for determination of any other legal issues which may arise between the present parties in the course of preparation of the plans.
+The parties should seek to agree the terms of the order, or submit proposed drafts with supporting submissions within two weeks of the handing down of this judgment.
+Easter Term [2013] UKSC 25 On appeal from: [2012] EWCA Civ 897 JUDGMENT R (on the application of ClientEarth) (Appellant) v The Secretary of State for the Environment, Food and Rural Affairs (Respondent) Lord Hope, Deputy President before Lord Mance Lord Clarke Lord Sumption Lord Carnwath 1 May 2013 Heard on 7 March 2013 JUDGMENT GIVEN ON Appellant Dinah Rose QC Emma Dixon Ben Jaffey (Instructed by Client Earth) Respondent Kassie Smith (Instructed by Treasury Solicitors) LORD CARNWATH, DELIVERING THE JUDGMENT OF THE COURT 1.
+This is the judgment of the court, giving reasons for making a reference to the Court of Justice of the European Union (CJEU).
+The court has also decided that, on the basis of concessions made on behalf of the respondent, the appellant is entitled to a declaration that the United Kingdom is in breach of its obligations to comply with the nitrogen dioxide limits provided for in Article 13 of Directive 2008/50/EC (the Air Quality Directive).
+Decisions on the extent of other relief (if any) will have to await the determination of the CJEU on the questions referred.
+In these circumstances the judgment does no more than set out the factual and legal context of the dispute, and the issues of European law which now arise (as a basis in due course for a reference in compliance with the recommendations of the CJEU: 6 November 2012 C 338/1).
+Background 2.
+Nitrogen dioxide is a gas formed by combustion at high temperatures.
+Road traffic and domestic heating are the main sources of nitrogen dioxide in most urban areas in the UK.
+The Air Quality Directive imposes limit values for levels of nitrogen dioxide in outdoor air throughout the UK.
+These limits are based on scientific assessments of the risks to human health associated with exposure to nitrogen dioxide.
+These risks are described in the agreed statement of facts and issues: At concentrations exceeding the hourly limit value, nitrogen dioxide is associated with human health effects.
+Short term heightened concentrations of nitrogen dioxide are associated with increased numbers of hospital admissions and deaths.
+At elevated concentrations, nitrogen dioxide can irritate the eyes, nose, throat and lungs and lead to coughing, shortness of breath, tiredness and nausea.
+Long term exposure may affect lung function and cause respiratory symptoms.
+Nitrogen dioxide, along with ammonia, also contributes to the formation of microscopic airborne particles, one of the many components of particulate matter (PM10 and PM2.5) which have been calculated to have an effect equivalent to 29,000 premature deaths each year in the UK.
+It is currently unclear which components or characteristics of particulate matter lead to these health impacts.
+European Air Quality Legislation 3.
+The current EU legislative framework governing air quality has its origins in the Air Quality Framework Directive of September 1996 (96/62/EC) (the Framework Directive).
+The general aim of the directive, as stated in article 1, was to define the basic principles of a common strategy to: define and establish objectives for ambient air quality in the Community designed to avoid, prevent or reduce harmful effects on human health and the environment as a whole, assess the ambient air quality in Member States on the basis of common methods and criteria, obtain adequate information on ambient air quality and ensure that it is made available to the public, inter alia by means of alert thresholds, maintain ambient air quality where it is good and improve it in other cases. 4.
+Article 2 contained the key definitions which have been carried into the later directives, including: 'limit value` shall mean a level fixed on the basis of scientific knowledge, with the aim of avoiding, preventing or reducing harmful effects on human health and/or the environment as a whole, to be attained within a given period and not to be exceeded once attained; 'target value` shall mean a level fixed with the aim of avoiding more long term harmful effects on human health and/or the environment as a whole, to be attained where possible over a given period; 'margin of tolerance` shall mean the percentage of the limit value by which this value may be exceeded subject to the conditions laid down in this Directive; 5.
+A zone was defined as a part of their territory delimited by the Member States, and an agglomeration was defined as; a zone with a population concentration in excess of 250 000 inhabitants or, where the population concentration is 250 000 inhabitants or less, a population density per km which for the Member States justifies the need for ambient air quality to be assessed and managed. 6.
+By article 4(1) the Commission was required to submit proposals on the setting of limit values for various atmospheric pollutants, one being nitrogen dioxide.
+They were required to take account of the factors listed in Annex II, which included economic and technical feasibility.
+Article 7(1) required member states to take the necessary measures to ensure compliance with the limit values.
+By article 7(3) they were required to draw up action plans indicating the measures to be taken in the short term where there is a risk of the limit values being exceeded.
+Such plans may, depending on the individual case provide for measures to control and, where necessary, suspend activities, including motor vehicle traffic, which contribute to the limit values being exceeded. 7.
+Article 8 headed Measures applicable in zones where levels are higher than the limit value provided: 1.
+Member States shall draw up a list of zones and agglomerations in which the levels of one or more pollutants are higher than the limit value plus the margin of tolerance 3.
+In the zones and agglomerations referred to in paragraph 1, Member States shall take measures to ensure that a plan or programme is prepared or implemented for attaining the limit value within the specific time limit.
+The said plan or programme, which must be made available to the public, shall incorporate at least the information listed in Annex IV. 8.
+Article 11 contained detailed provisions for information to be given to the Commission about areas of non compliance and progress in dealing with it.
+In particular, member states were required to send to the Commission the plans or programmes referred to in Article 8(3) no later than two years after the end of the year during which the levels were observed (art 11(1)(a)(iii)). 9.
+A further Directive 1999/30/EC (the First Daughter Directive) contained the detail of the limit values, margins of tolerance, and deadlines for compliance for the various pollutants.
+Annex II set two types of limit values for nitrogen dioxide, an hourly limit value (a maximum of 18 hours in a calendar year in which hourly mean concentrations can exceed 200 micrograms g/m3) and an annual mean limit value (mean concentrations must not exceed 40 g/m3 averaged over a year).
+The deadline for achieving both limit values was 1 January 2010.
+It is to be noted that for some other pollutants (sulphur dioxide and particulates) an earlier date was set (1 January 2005). 10.
+The 2008 Air Quality Directive was a consolidating and amending measure.
+As paragraph (3) of the preamble explained, the earlier directives need to be substantially revised in order to incorporate the latest health and scientific developments and the experience of the Member States.
+In the interests of clarity, simplification and administrative efficiency it is therefore appropriate that those five acts be replaced by a single Directive and, where appropriate, by implementing measures.
+The Framework Directive and the First Daughter Directive were repealed (Article 31), but the same limit values, margin of tolerances, and deadlines were reproduced in annex XI of the new directive. 11.
+Article 13 provides: Limit values and alert thresholds for the protection of human health 1.
+Member States shall ensure that, throughout their zones and agglomerations, levels of sulphur dioxide, PM10, lead, and carbon monoxide in ambient air do not exceed the limit values laid down in Annex XI.
+In respect of nitrogen dioxide and benzene, the limit values specified in Annex XI may not be exceeded from the dates specified therein.
+The margins of tolerance laid down in Annex XI shall apply in accordance with Article 22(3) and Article 23(1) The difference between the first and second paragraphs of article 13 appears to reflect the fact that the former relates to limits which, unlike those for nitrogen dioxide, had already come into effect at the time of the directive.
+The absolute terms of the obligation under article 13 may be contrasted, for example, with article 16 which requires all necessary measures not entailing disproportionate costs to achieve the target value set for concentrations of PM2.5. 12.
+Of direct relevance to the present appeal are articles 22 and 23.
+They come in different chapters: the former in chapter III (Ambient and Air Quality Management, the latter in chapter IV (Plans).
+The relevant parts are as follows: Article 22 Postponement of attainment deadlines and exemption from the obligation to apply certain limit values 1.
+Where, in a given zone or agglomeration, conformity with the limit values for nitrogen dioxide or benzene cannot be achieved by the deadlines specified in Annex XI, a Member State may postpone those deadlines by a maximum of five years for that particular zone or agglomeration, on condition that an air quality plan is established in accordance with Article 23 for the zone or agglomeration to which the postponement would apply; such air quality plan shall be supplemented by the information listed in Section B of Annex XV related to the pollutants concerned and shall demonstrate how conformity will be achieved with the limit values before the new deadline. 3.
+Where a Member State applies paragraphs 1 or 2, it shall ensure that the limit value for each pollutant is not exceeded by more than the maximum margin of tolerance specified in Annex XI for each of the pollutants concerned. 4.
+Member States shall notify the Commission where, in their view, paragraphs 1 or 2 are applicable, and shall communicate the air quality plan referred to in paragraph 1 including all relevant information necessary for the Commission to assess whether or not the relevant conditions are satisfied.
+In its assessment, the Commission shall take into account estimated effects on ambient air quality in the Member States, at present and in the future, of measures that have been taken by the Member States as well as estimated effects on ambient air quality of current Community measures and planned Community measures to be proposed by the Commission.
+Where the Commission has raised no objections within nine months of receipt of that notification, the relevant conditions for the application of paragraphs 1 or 2 shall be deemed to be satisfied.
+If objections are raised, the Commission may require Member States to adjust or provide new air quality plans.
+Article 23 Air quality plans 1.
+Where, in given zones or agglomerations, the levels of pollutants in ambient air exceed any limit value or target value, plus any relevant margin of tolerance in each case, Member States shall ensure that air quality plans are established for those zones and agglomerations in order to achieve the related limit value or target value specified in Annexes XI and XIV.
+In the event of exceedances of those limit values for which the attainment deadline is already expired, the air quality plans shall set out appropriate measures, so that the exceedance period can be kept as short as possible.
+The air quality plans may additionally include specific measures aiming at the protection of sensitive population groups, including children.
+Those air quality plans shall incorporate at least the information listed in Section A of Annex XV and may include measures pursuant to Article 24.
+Those plans shall be communicated to the Commission without delay, but no later than two years after the end of the year the first exceedance was observed 13.
+Annex XV section A lists categories of information to be included in air quality plans generally (generally reproducing the categories in Annex IV of the Framework Directive); section B sets out additional information to be provided under article 22(1), including information on all air pollution abatement measures that have been considered for implementation in connection with the attainment of air quality objectives, under specified headings.
+The headings include, for example (a) reduction of emissions from stationary sources by ensuring that polluting small and medium sized stationary combustion sources (including for biomass) are fitted with emission control equipment or replaced; (b) reduction of emissions from vehicles through retrofitting with emission control equipment.
+The use of economic incentives to accelerate take up should be considered; (h) where appropriate, measures to protect the health of children or other sensitive groups. 14.
+The term air quality plan was new to this directive, but not the content of article 23.
+The correlation table (annex XVII) indicates that article 23 and annex XV section A were designed to reproduce with amendments the effect of article 8(1) (4), and annex IV of the Framework Directive, where the corresponding term was measures.
+The time limit of two years, in the third paragraph, corresponds to that set by article 11(1)(a)(iii) for submission of plans under article 9(3). 15.
+By contrast, article 22 and annex XV section B were new.
+The purpose was explained by paragraph (16) of the preamble: (16) For zones and agglomerations where conditions are particularly difficult, it should be possible to postpone the deadline for compliance with the air quality limit values in cases where, notwithstanding the implementation of appropriate pollution abatement measures, acute compliance problems exist in specific zones and agglomerations.
+Any postponement for a given zone or agglomeration should be accompanied by a comprehensive plan to be assessed by the Commission to ensure compliance by the revised deadline.
+The availability of necessary Community measures reflecting the chosen ambition level in the Thematic Strategy on air pollution to reduce emissions at source will be important for an effective emission reduction by the timeframe established in this Directive for compliance with the limit values and should be taken into account when assessing requests to postpone deadlines for compliance. 16.
+A Commission communication relating to notifications under article 22 was issued on 26 June 2008.
+It noted that a majority of member states had not attained the limit values for PM10 even though they had become mandatory on 1 January 2005.
+Current assessments indicated that a similar situation might arise in 2010 when limit values for nitrogen dioxide would become mandatory (para 3).
+The notification procedure was described as follows: The initial notifications are expected principally to concern PM10, for which the potential extensions will end three years after the entry into force of the Directive, i.e. on 11 June 2011.
+In view of the existing levels of non compliance with the limit values for PM10, it is important to submit notifications as soon as possible after the Directive enters into force for zones and agglomerations where Member States consider that the conditions are met.
+When preparing the notifications, care must, however, be taken to ensure that the data necessary to demonstrate compliance with the conditions are complete. 9.
+As regards nitrogen dioxide and benzene, the limit values may not be exceeded from 1 January 2010 at the latest.
+Where the conditions are met, the deadline for achieving compliance may be postponed until such time as is necessary for achieving compliance with the limit values, but at maximum until 2015.
+The aim must be to keep the postponement period as short as possible.
+If an exceedance of the limit values for nitrogen dioxide or benzene occurs for the first time only in 2011 or later, postponing the deadline is no longer possible.
+In those cases, the second subparagraph of Article 23(1) of the new Directive will apply.
+Air Quality Plans in the United Kingdom 17.
+For the purposes of assessing and managing air quality, the UK is divided into 43 zones and agglomerations. 40 of these zones and agglomerations were in breach of one or more of the limit values for nitrogen dioxide in 2010. 18.
+On 20 December 2010, in response to a letter before action from ClientEarth, the Secretary of State indicated that air quality plans were being drawn up for Greater London and all other non compliant zones and agglomerations as part of the time extension notification process under article 22.
+It was said that these plans would demonstrate how compliance would be achieved in these areas by 2015.
+However, when draft air quality plans were published on 9 June 2011 for the purposes of public consultation, the proposals indicated that in 17 zones and agglomerations, including Greater London, compliance was expected to be achieved after 2015. 19.
+The UK Overview Document stated (referring to projections shown in Table 1): The table shows that of the 40 zones with exceedances in 2010, compliance may be achieved by 2015 in 23 zones, 16 zones are expected to achieve compliance between 2015 and 2020 and that compliance in the London zone is currently expected to be achieved before 2025 (para 1.3). 20.
+On 19 September 2011, the Secretary of State published an analysis of responses to the consultation.
+It stated, in response to comments that the plans did not meet the requirements for a time extension under Article 22: The Introduction to the UK Overview document makes clear that the European Commission advised Member States to also submit air quality plans for zones where full compliance is projected after 2015.
+As set out in paragraph 1.1 of the UK Overview document, the UK will be submitting plans with a view to postponement of the compliance date to 2015 where attainment by this date is projected.
+Plans for zones where full compliance is currently expected after that date will also be submitted to the Commission under Article 23 on the basis that they set out actions to keep the exceedances period as short as possible. 21.
+Final plans were submitted to the Commission on 22 September 2011, including applications for time extensions under Article 22 in 24 cases supported by plans showing how the limit values would be met by 1 January 2015 at the latest.
+In the remaining 16 cases, no application has been made under Article 22 for a time extension, but air quality plans were prepared projecting compliance between 2015 and 2025. 22.
+In a decision dated 25 June 2012, the European Commission raised objections to 12 of the 24 applications for time extensions, unconditionally approved nine applications, and approved three subject to certain conditions being fulfilled.
+It made no comment on the zones for which compliance by 2015 had not been shown. 23.
+A letter from the Commission (EU Pilot) dated 19 June 2012 referred to multiple complaints concerning the UKs compliance with PM10 and NO2 limit values in the Air Quality Directive, including its failure to request time extensions for 17 zones, in which the NO2 limits were exceeded.
+The letter commented: The Commission has noted your confirmation that these zones have indeed not applied under Article 22 of the Directive and is considering how to address this issue under its wider enforcement strategy for the Directive.
+At this point, the Commission would like to draw your attention to the obligation of setting out appropriate measures, so that the exceedance period can be kept as short as possible, as provided by Article 23 for all zones and agglomerations where an exceedance is taking place and no time extension has been requested under Article 22. 24.
+Another letter from the Commission (Directorate General Environment) to ClientEarth dated 29 June 2012 commented on their own complaint of non compliance: We will await the outcome of your appeal to the United Kingdom's Supreme Court in R (ClientEarth) vs Secretary of State for the Environment, Food and Rural Affairs and your further update on the situation to decide how best to proceed with this matter given that it now appears clear that numerous Air Quality Plans, including the plan for London, were not communicated to the Commission under Article 22 of Directive 2008/50/EC as was originally thought The Commission would have some considerable concerns if Article 23 of the Directive were seen to be a way of allowing Member States to circumvent the requirements of Article 22 of the Directive.
+Article 22 of the Directive was introduced in order to afford Member States additional time for compliance for up to a maximum of 5 years, on condition that an air quality plan is established in accordance with Article 23 and communicated to the Commission for assessment.
+It is only under these conditions that Member States can be afforded additional time for compliance and Article 23 itself cannot be relied upon to further extend this clearly prescribed and limited time extension clause.
+As explained, our normal policy is to stay or close complainant files where the issue in question is before the national courts so as to allow national proceedings to run their course before deciding whether or not to instigate our own infringement proceedings under Article 258 of the Treaty on the Functioning of the European Union (TFEU): The national courts are the key authority in Member States tasked with the interpretation and implementation of EU law.
+The fact that the Commission has powers to bring its own infringement proceedings against Member States under Article 258 TFEU should not mean that individuals cannot plead these obligations before a national court as has been recognised by the Court of Justice as long ago as 1963 (Van Gend en Loos judgment [1963] ECR 1).
+As the Court already recognised in that case, a restriction of the guarantees against an infringement by Member States to the procedures under Article 258 TFEU would remove all direct legal protection of the individual rights of their nationals.
+The Court concluded that the vigilance of individuals concerned to protect their rights amounted to an effective supervision in addition to the supervision entrusted by Article 258 TFEU to the Commission.
+The proceedings 25.
+The present proceedings for judicial review had been commenced on 28 July 2011.
+The claimants sought (i) a declaration that the draft nitrogen dioxide air quality plans do not comply with the requirements of EU law; and (ii) a mandatory order requiring the Secretary of State to (a) revise the draft air quality plans to ensure that they all demonstrate how conformity with the nitrogen dioxide limit values will be achieved as soon as possible and by 1 January 2015 at the latest, and (b) publish the revised draft air quality plans as public consultation documents, giving a reasonable timeframe for response.
+By amendment, the Appellant also sought a declaration that the United Kingdom is in breach of its obligations to comply with the nitrogen dioxide limits provided for in Article 13 of Directive 2008/50/EC.
+The proceedings 26.
+The claim was heard by Mitting J on 13 December 2011.
+He dismissed the claim (R (ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2011] EWHC 3623 (Admin)).
+He held that article 22 was discretionary.
+He declined in any event to grant a mandatory order: such a mandatory order, like the imposition of an obligation on the Government to submit a plan under Article 22 to bring the United Kingdom within limit values by 1 January 2015, would raise serious political and economic questions which are not for this court.
+It is clear from all I have seen that any practical requirement on the United Kingdom to achieve limit values in its major agglomerations, in particular in London, would impose upon taxpayers and individuals a heavy burden of expenditure which would require difficult political choices to be made.
+It would be likely to have a significant economic impact.
+The courts have traditionally been wary of entering this area of political debate for good reason. (para 15) He also declined to make a declaration: A declaration will serve no purpose other than to make clear that which is already conceded.
+The means of enforcing Article 13 lie elsewhere in the hands of the Commission under article 258 of the Treaty on the Functioning of the European Union, and if referred to it, the Court of Justice of the European Union under Article 260.
+Those remedies are sufficient to deal with the mischief at which the 2008 Directive is aimed. (para 16) 27.
+The appeal was dismissed by the Court of Appeal on 30 May 2012 ([2012] EWCA Civ 897).
+Laws LJ, giving the only substantive judgment, agreed with Mitting J that article 22 was discretionary.
+In those circumstances, he declined to consider the issue of a mandatory order which he regarded as moot.
+Of the judges reasons for refusing a declaration he said: it seems to me that he was, with respect, plainly right and the contrary is not contended.
+His judgment speaks as a declaration.
+No substantive issue of effective judicial protection arises from his refusal to grant a formal declaration. (paras 22 23) 28.
+Permission to appeal to the Supreme Court was granted by the court on 19 December 2012.
+The submissions of the parties (in summary) ClientEarth 29.
+ClientEarth does not accept that the UK has considered or put in place all practical measures to ensure compliance by 2015. 30.
+In any event, article 22 is a mandatory procedure which applied to any member state which remained in breach of the relevant limit value at 1 January 2010.
+That is confirmed by article 22(4): where in the view of a member state paragraph 1 is applicable, the state shall notify the Commission and communicate the required air quality plan.
+Paragraph 1 is applicable where in a given zone or agglomeration, conformity with the limit values for nitrogen dioxide or benzene cannot be achieved by the deadlines specified 31.
+Article 23 does no more than preserve the system already in place under the previous directive.
+It is not an alternative procedure for a state which is in breach of the limit value, nor a means by which it can avoid the more stringent controls set out in annex XV(B) or the maximum margins of tolerance set by article 22(3). 32.
+The lower court erred in disregarding the responsibility of the domestic courts to provide an effective remedy for the admitted breach of article 13 (see eg Joined Cases C 444/09 and C 456/09 Gavieiro Gavieiro and Iglesias Torres ([2010] ECR I 0000, paras 72, 75).
+Neither practical difficulties nor the expense of compliance can be relied on as defences (see eg Case C 390/07 Commission v UK [2009] ECR I 00214, para 121; Case C 68/11 Commission v Italy paras 41, 59 60).
+The Secretary of State 33.
+The Secretary of State accepts that the UK is in breach of article 13 in relation to certain zones, and that for certain zones it has not produced plans showing conformity by 2015; but asserts that for those zones compliance within that timetable is not realistically possible, due to circumstances out of its control and unforeseen in 2008.
+These problems are shared with other states.
+In many cases the Commission has rejected plans submitted under article 22 because the notifications have failed to fulfil the condition of demonstrating compliance by 2015. 34.
+Article 22 is not mandatory, as indicated by the use of the word may in article 22(1).
+An air quality plan demonstrating compliance by 1 January 2015 is only required if a member state is applying under Article 22 for postponement of the deadline.
+Further, postponement can only properly be sought if the state is able to demonstrate how conformity will be achieved by the new deadline. 35.
+Where postponement is not sought, the state is at immediate risk of infraction proceedings, but remains subject to a continuing duty, under the second paragraph of article 23, to maintain plans setting out appropriate measures so that the exceedance period can be kept as short as possible.
+That paragraph (which was not in the earlier Directives) envisages, and provides for, the situation in which a Member State has failed to comply with the relevant limit values by the relevant deadline.
+The refusal of discretionary relief by the courts below was consistent with EU principles, both of effective judicial protection, which leave to domestic systems the procedural conditions governing actions for the protection of the rights under Community law (Case 33/76 Rewe Zentralfinanz eG and Rewe Zentral AG v Landwirtschaftskammer fr das Saarland [1976] ECR 1989 at 5); and of sincere co operation, in cases of unforeseeable difficulties which make it absolutely impossible to carry out obligations imposed Community law (see Case C 217/88 Commission v Federal Republic of Germany [1990] ECR I 2879 at 33).
+The courts preliminary conclusion
+The court is satisfied that it should grant the declaration sought, the relevant breach of article 13 having been clearly established.
+The fact that the breach has been conceded is not, in the courts view, a sufficient reason for declining to grant a declaration, where there are no other discretionary bars to the grant of relief.
+Such an order is appropriate both as a formal statement of the legal position, and also to make clear that, regardless of arguments about the effect of articles 22 and 23, the way is open to immediate enforcement action at national or European level.
+The other issues raise difficult issues of European law, the determination of which in the view of the court, requires the guidance of the CJEU, and on which accordingly as the final national court we are obliged to make a reference.
+Taking note of the draft questions provided by the appellants, and subject to any further submissions of the parties, the following questions appear appropriate: i) Where in a given zone or agglomeration conformity with the limit values for nitrogen dioxide cannot be achieved by the deadline of 1 January 2010 specified in annex XI of Directive 2008/50/EC (the Directive), is a Member State obliged pursuant to the Directive and/or article 4 TEU to seek postponement of the deadline in accordance with article 22 of the Directive? ii) If so, in what circumstances (if any) may a Member State be relieved of that obligation? iii) If the answer to (i) is no, to what extent (if at all) are the obligations of a Member State which has failed to comply with article 13, and has not made an application under article 22, affected by article 23 (in particular its second paragraph)? iv) In the event of non compliance with article 13, and in the absence of an application under article 22, what (if any) remedies must a national court provide as a matter of European law in order to comply with article 30 of the Directive and/or article 4 or 19 TEU?
+The parties are accordingly requested to submit to the court (if possible in agreed form) their proposals for any revisions to the questions to be referred to the CJEU, together with brief summaries of their respective submissions as to the answers to those questions.
+These should be submitted within 4 weeks of this judgment.
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+Para 352D of the Immigration Rules provides for the grant of leave to enter to the child of a parent who has been admitted to the UK as a refugee.
+The issue in this case is whether the Para extends, or should be treated as extending, to a child for whom a family member has taken parental responsibility under the Islamic procedure known as Kafala (described in the agreed statement of issues as a process of legal guardianship akin to adoption).
+The facts are fully set out in the judgment of Davis LJ in the Court of Appeal.
+The following is a sufficient summary for present purposes. i) AA was born in Somalia on 21 August 1994.
+Her family was torn apart by events in Somalia.
+Her father was killed in the mid 1990s. ii) An elder sister, Ms A, married Mohamed on 10 January 2001.
+In 2002 she came home to find that he, her daughter Fadima, and her step daughter Amaani had been abducted.
+She eventually left Somalia and came to the United Kingdom in October 2002.
+She was later granted indefinite leave to remain, on compassionate grounds.
+Her husband had in the meantime escaped from his abductors and had gone to live elsewhere in Mogadishu. iii) AA became separated from her mother and other siblings during the fighting.
+Around the end of 2002 she went to live with Mohamed, Fadima and Amaani and was accepted as a family member. iv) In October 2007 Mohamed left Somalia, and came to the United Kingdom in November 2007, where he was reunited with Ms A.
+He was granted asylum on 21 July 2008.
+The three girls AA, Fadima and Amaani were left with a maternal aunt in Mogadishu. v) At the end of 2008 the three girls went to live with neighbours.
+Contact with Ms A and Mohamed was renewed in March 2009.
+Applications for entry into the UK were made for all three girls.
+Entry clearance was granted to Fadima and Amaani, who came to the United Kingdom on 22 January 2010. (I shall refer to them for convenience, and without legal implications, as AAs adoptive siblings.) It was refused for AA, who remained in Addis Ababa pending her appeal. vi) Her appeal was heard in the First tier Tribunal on 3 September 2010.
+Expert evidence, accepted by the tribunal, was to the effect that, although adoption as such does not exist under Islamic law, under the legal institution known as Kafala, a person may become a protg and part of the household of an adult; and that this only falls short of a full blown adoption in that such adoptee does not enjoy a right of inheritance under Islamic law (FTT para 21). vii) The tribunal allowed the appeal both under para 352D and article 8 of the European Convention on Human Rights, the former on the basis that AA falls into a specific category of persons who have been taken into guardianship or the care of others under a transfer of responsibility such that Islamic law would recognise the legal status of the appellant in relation to [Ms A and Mohamed] as their child for all purposes and in the circumstances in which the appellant was an orphan. (para 31) viii) On 23 May 2011, the Upper Tribunal (Judge Grubb) allowed the Secretary of States appeal in respect of para 352D, but confirmed the tribunals decision under article 8.
+On 14 May 2012 AA was given entry clearance and she arrived in this country on 4 June 2012.
+The Court of Appeal accepted that notwithstanding the grant of entry clearance under article 8, the appeal was not academic.
+The answer provided is that if entry is permitted under the Immigration Rules the entitlement of AA to remain thereafter will in effect align with the sponsor's entitlement, whereby indefinite leave to remain can be expected to be granted after the expiry of the five year period: whereas grant of leave to remain under article 8 is discretionary and not necessarily so linked to the sponsor's position.
+In this court, Mr Gill has provided further details of the differences, legal and practical, between clearance under the rules and discretionary leave to remain (DLR) under article 8.
+For example, under policies current at the time a person admitted under article 8 would take longer to reach the point of claiming indefinite leave to remain (ILR) than a person admitted under the rules.
+Mr Gill submits that DLR status is not easily understood by employers, educational institutions and others with whom the holder will need to have dealings in ordinary life.
+He pointed to other practical disadvantages, such as in relation to travel documents.
+Some of his points were contentious.
+However, it was not in dispute as I understand it that AAs status, following admission under article 8, might be materially less advantageous than that of someone (such as her adoptive siblings) admitted under Para 352D.
+The Rules
+The critical provision is Para 352D, in Part 11 of the Immigration Rules which relates to asylum: 352D.
+The requirements to be met by a person seeking leave to enter or remain in the United Kingdom in order to join or remain with the parent who is currently a refugee granted status as such under the immigration rules in the United Kingdom are that the applicant: (i) is the child of a parent who is currently a refugee granted status as such under the immigration rules in the United Kingdom; and (ii) is under the age of 18, and (iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and (iv) was part of the family unit of the person granted asylum at the time that the person granted asylum left the country of his habitual residence in order to seek asylum;
+The principal issue which arises in AAs case is whether her relationship with her brother in law Mohamed can be regarded as that of the child of a parent (under (i)).
+For that it is necessary to turn to the interpretation provision, Para 6, which defines parent as follows: a parent includes: (a) the stepfather of a child whose father is dead and the reference to stepfather includes a relationship arising through civil partnership; (b) the stepmother of a child whose mother is dead and the reference to stepmother includes a relationship arising through civil partnership and; (c) the father as well as the mother of an illegitimate child where he is proved to be the father; (d) an adoptive parent, where a child was adopted in accordance with a decision taken by the competent administrative authority or court in a country whose adoption orders are recognised by the United Kingdom or where a child is the subject of a de facto adoption in accordance with the requirements of Para 309A of these Rules (except that an adopted child or a child who is the subject of a de facto adoption may not make an application for leave to enter or remain in order to accompany, join or remain with an adoptive parent under Paras 297 303); (e) in the case of a child born in the United Kingdom who is not a British citizen, a person to whom there has been a genuine transfer of parental responsibility on the ground of the original parent(s)' inability to care for the child.
+Thus an adoptive parent under a de facto adoption is included, but subject to the requirements of Para 309A.
+This is underlined in turn by the definition of adoption: adoption unless the contrary intention appears, includes a de facto adoption in accordance with the requirements of Para 309A of these Rules, and adopted and adoptive parent should be construed accordingly.
+Para 309A is in Part 8 of the Immigration Rules relating to Family Members (in the particular group relating to children).
+Its present form dates from 2003.
+It provides so far as relevant: 309A For the purposes of adoption under Paras 310 316C a de facto adoption shall be regarded as having taken place if: (a) at the time immediately preceding the making of the application for entry clearance under these Rules the adoptive parent or parents have been living abroad (in applications involving two parents both must have lived abroad together) for at least a period of time equal to the first period mentioned in sub Para (b)(i) and must have cared for the child for at least a period of time equal to the second period material in that sub Para; and (b) during their time abroad, the adoptive parent or parents have: (i) lived together for a minimum period of 18 months, of which the 12 months immediately preceding the application for entry clearance must have been spent living together with the child; and (ii) have assumed the role of the child's parents, since the beginning of the 18 month period, so that there has been a genuine transfer of parental responsibility.
+Paras 310 316C (referred to in the opening words) form a group of Paras under the general heading Adopted Children, dealing with the general requirements for entry as an adopted child, unconnected with circumstances which might lead to an asylum claim.
+We were given little information about the thinking behind these rules, either in the present form, or as introduced in 2000.
+Before 2000 a more flexible approach had been applied.
+In R v Immigration Appeal Tribunal Ex p Tohur Ali [1988] 2 FLR 523, the Court of Appeal considered rule 50 as it then stood, under which parent was defined as including an adoptive parent, where there has been a genuine transfer of parental responsibility on the ground of the original parents inability to care for the child The court, by a majority, held that this expression was not confined to adoption under a legally recognizable adoptive process.
+Para 352D was originally introduced in October 2000, at the same time as the Human Rights Act 1998 came into effect.
+At that time the relevant part of the definition of parent in Para 6 included an adoptive parent but only where a child was adopted in accordance with a decision taken by a competent administrative authority or court in a country whose adoption orders are recognised by the United Kingdom (except where an application for leave to enter or remain is made under Paras 310 316).
+HC 538 of 31 March 2003 altered the definition of parent to its present form and introduced Para 309A.
+We were not given any explanation for these changes, but neither side relies on them as throwing any light on the issue we have to decide.
+Para 352D was considered by the Court of Appeal in MK (Somalia) v Entry Clearance Officer [2009] Imm AR 386.
+It had been argued that, notwithstanding the introduction of the new rule, reliance could be placed on a free standing policy, outside the rules, expressed in a Ministerial Statement dated 17 March 1995, under which following grant of asylum status to a parent reunion of the immediate family would be permitted as a concession outside the rules.
+The court held that this policy had been supplanted by the rules in their amended form.
+Discussion
+As I understand them, Mr Gills submissions, carefully and fully developed in his printed case and in oral argument, have three main strands: i) Construction To make sense of Para 352D in the context of the family of a refugee, the definitions must be interpreted broadly so as to include a child in the position of AA. ii) International obligations Effect must be given to the UKs international obligations relating to the treatment of children, including a broad approach to the recognition of adoptive children. iii) Discrimination Children who are members of a family unit should not be put at a disadvantage because they come from countries which have no formal system of adoption.
+Construction
+I would accept that the requirements of Para 309A (b)(i) and (ii) seem ill adapted to the purposes of Para 352D.
+They assume a degree of stability in the home country which is likely to be wholly inappropriate to those like AA seeking refuge from war torn Somalia, and indeed for most asylum seekers.
+Mr Eadie did not argue otherwise, although he suggested some theoretical scenarios in which the requirements might be achievable.
+As appears from its introduction the definition seems to have been designed principally to deal with ordinary applications to enter by adopted children, covered by the immediately following Paras.
+It finds its way into Para 352D by a somewhat circuitous route, which suggests that careful thought may not have been given to its practical implications.
+If there were any way in which we could legitimately rewrite the rule to produce a fairer result, I could see a persuasive case for doing so.
+Unfortunately I do not think this possible.
+The correct approach to construction of the rules is well settled, as explained by Lord Brown in Mahad v Entry Clearance Officer [2010] 1 WLR 48: The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy the court's task is to discover from the words used in the Rules what the Secretary of State must be taken to have intended that intention is to be discerned objectively from the language used, not divined by reference to supposed policy considerations. (para 10)
+Read in accordance with those principles, it is clear to my mind that Para 352D does not cover AAs case, and cannot be rewritten in order to do so.
+Whether or not Kafala could be treated as a form of adoption for other purposes, the definition of adoptive parent in Para 6 is more restricted.
+It extends to de facto adoption only within the limitations laid down by Para 309A, which do not cover this case.
+Although in terms directed to the succeeding provisions, the definition is also incorporated specifically into the general definition of adoptive parent and hence into that of parent in Para 6.
+Mr Gill sought to make something, first, of the fact that the definition of parent is expressed as inclusive, and, secondly, of the words unless the contrary intention appears in the definition of adoption.
+Neither point assists.
+The word includes in the definition of parent is readily explicable, having regard to the fact that the particular Paras do not include a biological parent.
+They are rather designed to extend the natural meaning of the term.
+The specific treatment of adoption in Para (d) excludes any intention to cover other forms of de facto adoption outside the definition.
+Similarly, the reference to contrary intention in the definition of adoption, in context, cannot be read as designed to extend the scope of the definition, but rather to indicate that there may be contexts in which the extension to de facto adoption does not apply.
+On this aspect, I cannot usefully add to the reasoning of Davis LJ said in the Court of Appeal.
+As he said, the wording of the rules is plain and unambiguous.
+International obligations
+Mr Gill has referred us to a number of international instruments which call for a broad approach to the protection of the interests of children.
+As he rightly says, the best interests principle is now, in appropriate areas of law, recognised both by domestic and international law (see ZH(Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166).
+Without in any way detracting from the importance of the principles affirmed in those instruments, I do not find it necessary to review them in any detail.
+Taking them at their highest, Mr Gill is unable to point to any specific obligation covering the position of someone in the position of AA in the present case.
+LJ concluded: In response to similar submissions in MK (Somalia) (above), Maurice Kay Do these documents establish or evidence an obligation of customary international law that is positively protective of de facto adopted children? In my judgment they do not.
+At best they illustrate an increasing awareness of the need for a flexible approach to the concept of family but they do not address in terms the question of de facto adoption which, because of its very lack of formality, presents a receiving state with obvious problems of verification.
+There is no material referred to by Mr Pleming which demonstrates a clear international consensus about the particular problem of de facto adoption quite the contrary.
+Whilst there is a perceptible concern that the concept of family, in the context of family reunion, should not be resistant to social and cultural change, I do not consider that there is a precise, identifiable obligation of customary international law that is prescriptive of the national approach to de facto adoption. (para 12) I respectfully agree.
+Mr Gill also referred us to Secretary of State for Home Department v Abdi [1996] Imm AR 148.
+The Court of Appeal noted a Home Office letter dated 17 May 1990 relating to Somali Family Reunion Applications, which included the following: 8.1.1 If the United Kingdom sponsor has been recognised as a refugee here under the terms of the 1951 United Nations Convention relating to the Status of Refugees then, like most countries, we follow the policy on family reunion agreed by the Conference which adopted the Convention.
+We will agree to the admission of the spouse and minor children of the refugee.
+However given the nature of the Somali family we are prepared to be flexible and if a refugee is able to show that a person not covered by the policy was a dependent member of the refugee's immediate family unit before the refugee came to the United Kingdom, then we would be prepared to consider exceptionally extending the refugee family reunion provision to cover that person.
+Although this is a clear recognition of the importance attached internationally to family reunion, it is equally clear that the more flexible approach proposed for Somali applicants is not treated as a matter of legal obligation, but as a matter for exceptional consideration.
+In that respect Mr Gill faces a further difficulty.
+It is accepted by the Secretary of State that the rules on this issue are not exhaustive of this countrys obligations under international law.
+Hence the decision to allow AA entry under article 8 of the European Convention on Human Rights.
+Subject to the issue of discrimination, to which I will come, Mr Gill is unable to point to any international obligation which goes further in practical terms than the protection which has been afforded to AA under human rights law.
+Discrimination
+Mr Gill relies on what he calls the principle of non discrimination as recognised in a number of international instruments, for example: i) UN Convention on the Rights of the Child article 2, under which states parties are required to ensure the rights in the Convention to each child within their jurisdiction without discrimination of any kind ii) The Refugee Convention, the preamble of which reaffirms the principle that human beings shall enjoy fundamental rights and freedoms without discrimination iii) The European Convention on Human Rights article 14, under which the rights set out in the Convention are to be secured without discrimination on any of the grounds there set out.
+Mr Gill submits that the discrimination in this case arises on a number of grounds under article 14, including race, religion and nationality, and also (as he puts it in his printed case) other status (the statuses of being a child of a refugee and/or of being a de facto adopted child, ie a child who is not a biological child nor a child adopted in accordance with procedures recognised by the UK.)
+I accept that it appears harsh, to put it no higher, that under the rules AA is treated less favourably than her adoptive siblings, largely because of the tragic circumstances in which parental responsibility passed to her brother in law, taken with the lack of any functioning legal system allowing for formal adoption in the country from which she comes.
+It is however unnecessary to decide in the context of the present appeal whether or not such treatment could give rise to a claim for unlawful discrimination under article 14 or otherwise.
+This is because any rights which AA has in that respect would apply equally to her position in this country, regardless of the basis of her admission.
+Mr Gill did not suggest otherwise.
+In exercising any discretion in relation to the grant or extension of DLR, the Secretary of State is obliged to act in conformity with the Convention, including article 14.
+It is not necessary to reinterpret the rules to achieve that result.
+I would add one comment.
+As I have made clear, I see great force in Mr Gills criticisms of the use of the Para 309A definition in the context of a rule which is concerned with the treatment of refugees and their dependants.
+Mr Eadies only answer, as I understood him, was that clear definitions were needed to establish bright lines.
+That answer loses most of its force if the bright lines are drawn so restrictively that they have in practice to be supplemented by the much fuzzier lines drawn by article 8.
+In the interests of both applicants and those administering the system, it seems much preferable that the rules should be amended to bring them into line with the practice actually operated by the Secretary of State, including that dictated by her obligations under international law.
+Conclusion
+For these reasons, which substantially follow those of the Court of Appeal, I would dismiss this appeal.
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+These appeals concern requests made for the surrender under Part 1 of the Extradition Act 2003 of three persons wanted to serve sentences imposed upon their conviction in other member states of the European Union.
+The requests relating to the appellants Mindaugas Bucnys (Bucnys) and Marius Sakalis (Sakalis) come from the Ministry of Justice of the Republic of Lithuania.
+The third request, relating to the respondent Dimitri Lavrov (Lavrov), comes from the Ministry of Justice of the Republic of Estonia.
+The Ministries made the requests in the form of European arrest warrants intended to meet the requirements of Council Framework Decision 2002/584/JHA on the European arrest warrant and surrender procedures between member states of the European Union (the Framework Decision).
+Within the United Kingdom, Part 1 of the Extradition Act 2003 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), the designated authority under section 2(9), 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.
+The Administrative Court (Aikens LJ and Globe J) on 12 December 2012 answered the first question in the affirmative and the second in the negative: [2013] 1 All ER 1220.
+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); it held further that 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, and that, in the light of these considerations, the requests made by the Ministry of Justice of Lithuania in the cases of Bucnys and Sakalis were valid, while the request made by the Ministry of Justice of Estonia in the case of Lavrov was invalid.
+Bucnys and Sakalis now appeal, while the Estonian Ministry appeals in the case of Lavrov.
+The bases of the requests
+The request in respect of Bucnys results from his conviction for six housebreaking and one fraud offences, for which a total sentence of 5 years 4 months was passed on 29 February 2007.
+He was released conditionally by the Alytus Region District Courts order on 12 September 2008, but on 20 February 2010 the Vilnius City 1st District Court quashed his conditional release for failure to abide by the condition, requiring him to serve a further period of 1 year 7 months 28 days.
+The request for his surrender was expressed to be based on this court order dated 20 February 2010.
+Since preparing this judgment, the court has been informed by those instructed by Bucnys that he has died, presumably since the hearing.
+The issue raised remains of general importance, and this judgment records the Courts conclusions on it.
+Sakalis is wanted as a result of his conviction of a series of serious sexual assaults, including buggery, inflicted on the same victim on 28 October 2006.
+A sentence of 4 years was imposed by the Vilnius City 1st District Court on 25 January 2008, and his appeal was dismissed in his absence by the Vilnius County Court on 24 December 2008.
+Sakalis absconded before serving any part of this sentence.
+The request for his surrender was issued by the Minister of Justice signing as representative of the Ministry of Justice.
+Lavrov is wanted as a result of murder of an invalid paranoid schizophrenic in the nursing home where Lavrov worked as a medical orderly.
+He was sentenced to 13 years imprisonment on 23 March 2001, released on parole on 14 July 2008 with an obligation to fulfil supervision requirements.
+He was recalled to prison by the Viru County Court on 2 December 2009 for failure to fulfil such requirements, meaning that he would have to serve a further 4 years 2 months and 25 days in prison, but he absconded.
+On 9 February 2010 the Viru County Court issued an arrest warrant.
+On 10 February 2011, it sent a request to the Ministry of Justice to issue a warrant, leading to the Head of the Ministrys International Cooperation Unit issuing the request in issue dated 31 May 2011, expressed to be on the basis of the warrant dated 9 February 2010.
+Extradition Act 2003 and Framework Decision
+of Schedule 13 to, the Police and Justice Act 2006, reads: Section 2 of the 2003 Act, as amended by section 42 of, and paragraph 1(1) Part 1 warrant and certificate (1) This section applies if the designated authority receives a Part 1 warrant in respect of a person. (2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains (a) . , or (b) the statement referred to in subsection (5) and the information referred to in subsection (6) . (5) The statement is one that (a) the person in respect of whom the Part 1 warrant is issued has been convicted of an offence specified in the warrant by a court in the category 1 territory, and (b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence. (6) The information is (a) particulars of the person's identity; (b) particulars of the conviction; (c) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence; (d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence; (e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence. (7) The designated authority may issue a certificate under this section if it believes that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory. (8) A certificate under this section must certify that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory. (9) The designated authority is the authority designated for the purposes of this Part by order made by the Secretary of State.
+The Framework Decision was a third pillar measure agreed between member states under Title VI of the Treaty on European Union (TEU) in its pre Lisbon Treaty form.
+The heading of Title VI is Provisions on Police and Judicial Cooperation in Criminal Matters.
+The Framework Decision was expressed to be made with regard to the TEU and in particular Article 31(a) and (b) [sic] and Article 34(2)(b) thereof.
+Article 31(1)(a) and (b) are for present purposes relevant: 31(1).
+Common action on judicial cooperation in criminal matters shall include: (a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the member states, including, where appropriate, cooperation through Eurojust, in relation to proceedings and the enforcement of decisions; (b) facilitating extradition between member states; .
+The Framework Decision starts with recitals, stating inter alia: (5) The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between member states and replacing it by a system of surrender between judicial authorities.
+Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures.
+Traditional cooperation relations which have prevailed up till now between member states should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre sentence and final decisions, within an area of freedom, security and justice. (6) The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the cornerstone of judicial cooperation. (8) Decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the member state where the requested person has been arrested will have to take the decision on his or her surrender. (9) The role of central authorities in the execution of a European arrest warrant must be limited to practical and administrative assistance.
+The text of the Framework Decision provides: GENERAL PRINCIPLES Article 1 Definition of the European arrest warrant and obligation to execute it 1.
+The European arrest warrant is a judicial decision issued by a member state with a view to the arrest and surrender by another member state of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. 2.
+Member states shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision. 3.
+This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.
+Article 6 Determination of the competent judicial authorities 1.
+The issuing judicial authority shall be the judicial authority of the issuing member state which is competent to issue a European arrest warrant by virtue of the law of that State. 2.
+The executing judicial authority shall be the judicial authority of the executing member state which is competent to execute the European arrest warrant by virtue of the law of that state. 3.
+Each member state shall inform the General Secretariat of the Council of the competent judicial authority under its law.
+Article 7 Recourse to the central authority 1.
+Each member state may designate a central authority or, when its legal system so provides, more than one central authority to assist the competent judicial authorities. 2.
+A member state may, if it is necessary as a result of the organisation of its internal judicial system, make its central authority(ies) responsible for the administrative transmission and reception of European arrest warrants as well as for all other official correspondence relating thereto.
+Member state wishing to make use of the possibilities referred to in this article shall communicate to the General Secretariat of the Council information relating to the designated central authority or central authorities.
+These indications shall be binding upon all the authorities of the issuing member state.
+Article 8 Content and form of the European arrest warrant 1.
+The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex: (a) the identity and nationality of the requested person; (b) the name, address, telephone and fax numbers and e mail address of the issuing judicial authority; (c) evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of articles 1 and 2; (d) the nature and legal classification of the offence, particularly in respect of article 2; (e) a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person; (f) the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing member state; (g) if possible, other consequences of the offence.
+SURRENDER PROCEDURE Article 9 Transmission of a European arrest warrant 1.
+When the location of the requested person is known, the issuing judicial authority may transmit the European arrest warrant directly to the executing judicial authority. 2.
+The issuing judicial authority may, in any event, decide to issue an alert for the requested person in the Schengen Information System (SIS). 3.
+Such an alert shall be effected in accordance with the provisions of article 95 of the Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of controls at common borders.
+An alert in the Schengen Information System shall be equivalent to a European arrest warrant accompanied by the information set out in article 8(1).
+For a transitional period, until the SIS is capable of transmitting all the information described in article 8, the alert shall be equivalent to a European arrest warrant pending the receipt of the original in due and proper form by the executing judicial authority.
+Status of designation under article 6 and of SOCA certification under section 2(7)
+The first two questions identified in paragraph 3 above are inter related.
+Part 1 of the 2003 Act was enacted to give effect to the United Kingdoms international obligations contained in the Framework Decision.
+By its decision in Assange [2012] 2 AC 471 this court underlined the strength of the presumption that it did so fully and effectively.
+The Ministries submit that article 6 of the Framework Decision was intended to leave it to each member state to define its own judicial authority or authorities for the purposes of the Framework Decision, as best suited it; the information given by each state to the General Secretariat of the Council of the competent judicial authority under its law should be taken as conclusive, pursuant to the same spirit of mutual trust as underlies the Framework Decision itself; and section 2(7) of the 2003 Act must be taken as having been intended to involve a simple check by SOCA of the information received by the Secretariat, leading to a certificate issued by SOCA which must itself be taken as binding on the question whether the Part 1 warrant was issued by a competent judicial authority for the purposes of the 2003 Act.
+In a number of domestic authorities, the Ministries analysis has been accepted: Enander v Governor of Brixton Prison [2006] 1 CMLR 999, where Openshaw J thought that any further inquiry would be attended with considerable practical difficulty, it would be fraught with uncertainty, and would deprive the Act of its efficacy and cannot, in my judgment, have been intended by Parliament (para 30), Goatley v HM Advocate 2008 JC 1 and Harmatos v Office of the King's Prosecutor in Dendermonde, Belgium [2011] EWHC 1598 (Admin).
+In more recent authorities, a different attitude has been taken.
+At first instance in Assange [2011] EWHC 2849 (Admin), para 17, Sir John Thomas P, giving the judgment of the Divisional Court of the Queens Bench Division thought that: it is clear that in the present state of development of the common area for justice, mutual confidence in the common area for justice and the operation of the EAW will not be advanced unless the courts of the executing state scrutinise requests for surrender under the EAW with the intensity required by the circumstances of each case.
+Later, he said: 46.
+Although the approach in Enander is one that will ordinarily apply, the designation under article 6 does not, in our view, always compel the recognition by another member state as conclusive, if the authority is self evidently not a judicial authority within the meaning of that broad term in the Framework Decision.
+It is of some interest to note in the light of our observation at para 37 on the status of a Ministry of Justice that in 2007 the Commissioner for Justice and Home Affairs in the Report on the Evaluation of the Transposition of the Framework Decision stated that the designation by some states directly or indirectly of the Ministry of Justice as a judicial authority was contrary to the terms of the Framework Decision.
+However there appear to have no instances where the Commission has taken action in respect of a body that should not have been designated as a judicial authority. 47.
+For example, if a warrant was issued by a Ministry of Justice which the member state had designated as an authority under article 6, it would not, in our view, be a valid EAW under the Framework Decision.
+The principles of mutual recognition and mutual confidence which underpin the common area for justice would not require the recognition of such a warrant, as it would self evidently not have been issued by a body which, on principles universally accepted in Europe, was judicial.
+In our view a national judge within the European Union is bound to uphold the principles of mutual recognition and mutual confidence for the reasons we have given at para 17; public confidence in the EAW would only be undermined by the recognition of an EAW issued by a Ministry of Justice in contradistinction to an EAW issued by a judge or prosecutor. 48.
+It was accepted by Miss Montgomery QC (who appeared for the prosecutor) that if circumstances arose where it could be said that the person issuing the EAW was not a judicial authority, the designating certificate issued by SOCA would not be conclusive.
+It would have to be challenged by judicial review.
+She was right to accept that the certificate was not conclusive, as under section 2(8) of the 2003 Act the function entrusted to SOCA is to certify that the issuing authority has the function of issuing EAWs.
+It does not certify that it is a judicial authority.
+In Dhar v National Office of the Public Prosecution Service, The Netherlands [2012] EWHC 697 (Admin), King J pursued the same theme, saying: 38.
+True it is that the certificate must be certifying that the issuing authority has been designated by the law of the requesting state as the competent judicial authority for the purpose of issuing such warrants and that the requesting state has given notice to this effect to the General Secretariat of the European council pursuant to article 6(3) of the Framework Decision, but this is not the same in my judgment as certifying that such designated authority is as a matter of fact a judicial authority within the meaning of section 2(2). 39.
+Hence in my judgment it must be open, the grant of the certificate under section 2(7) notwithstanding, to this appellant to raise on this appeal (as he could have done before the District Judge) the issue whether the warrant was an invalid Part 1 warrant on the grounds that the purported issuing authority was not a judicial authority within the meaning of section 2(2) of the Act.
+When Assange was before the Supreme Court [2012] 2 AC 471, Miss Montgomery initially maintained the attitude she had taken in the Administrative Court, but in a late change of stance she aligned herself with the Lord Advocate for Scotlands written intervention advancing the same case as the present Ministries.
+In the event, the majority decision on other points made it unnecessary to decide this point: see per Lord Phillips of Worth Matravers at paras 81 82.
+However, Lord Kerr of Tonaghmore and I expressed views obiter that article 6 did not mean that any authority about which information was given to the Council Secretariat was ipso facto judicial (paras 105 and 238).
+Mr Knowles QC for the Ministries of Justice on the present appeal submits that, although Lord Phillips said that he was leaving the point open, he had in effect answered it in reasoning with which other members of the majority concurred.
+Mr Knowles points out that Miss Montgomerys wider submission in Assange was that, although judicial authority had a broad and autonomous meaning, this meaning describes any person or body authorised to play a part in the judicial process (Lord Phillips judgment, para 5); and that at para 76 Lord Phillips concluded that the issuing judicial authority bears the wider meaning for which Miss Montgomery contends and embraces the Prosecutor in the present case.
+Mr Knowless submission reads more into these passages in Assange than can be justified.
+By authorised to play a part in the judicial process must have been meant more than simply authorised to issue a European arrest warrant domestically and designated to the Secretariat under article 6(3).
+Otherwise, there would be no autonomous content at all.
+Even if one takes the sens vague of autorit judiciare which Lord Phillips approved in paras 18 and 65, this does not make an unlimited (only a wider) range of authorities eligible to be regarded as judicial.
+Such authorities must be at the least authorities qui appartient la justice, par opp[osition] legislative et administrative.
+Further, and most importantly, it is clear that the ratio of Assange was and is confined to the status of public prosecutor, and that other members of the majority cannot be taken as necessarily having agreed with all that Lord Phillips said on a number of points: see eg Lord Walker of Gestingthorpe at para 91, Lord Brown of Eaton under Heywood at para 95, Lord Kerr generally and Lord Dyson at paras 155 to 159 and 171.
+Finally, in the present case, the Administrative Court also disagreed with Enander [2006] 1 CMLR 999 and Harmatos [2011] EWHC 1598 (Admin) in so far as they stated that any certificate issued by SOCA under section 2(7) was conclusive or could only be challenged by judicial review, and preferred the views expressed on this aspect by King J in Dhar and by Lord Kerr and myself in Assange.
+Status and interpretation of Framework Decision
+For reasons explained in this Court in Assange [2012] 2 AC 471, paras 208 217, the Framework Decision falls outside the scope of the European Communities Act 1972.
+It is true, as Aikens LJ observed in para 48 of his judgment in this case, that this makes inapplicable the provision in section 3 of the 1972 Act imposing a duty on domestic courts to treat any question as to the meaning of any European Treaty or any European Union instrument as a question of law to be determined in accordance with the principles laid down by the European Court of Justice.
+But, viewing the Framework Decision as an international measure having direct effect only at an international level, the United Kingdom must still have contemplated that it would be interpreted uniformly and according to accepted European legal principles.
+When applying the common law presumption that Part 1 of the 2003 Act gives effect to the United Kingdoms international obligations fully and consistently (Assange, paras 201 and 204 206), I would therefore think it appropriate to have regard to European legal principles in interpreting the Framework Decision.
+Ultimately, however, this is not a point which I see as critical to these appeals.
+The recitals to the Framework Decision emphasise the importance being attached to the replacement of traditional cooperation relations by a system of surrender between judicial authorities and of free movement of judicial decisions.
+Article 1 emphasises at its outset that a European arrest warrant is a judicial decision, while article 6 states that the issuing [or the executing] judicial authority shall be the judicial authority of the issuing [or executing] member state which is competent to issue a [or execute the] European arrest warrant by virtue of the law of that state.
+Under European law, if a matter is left expressly to national law, then that must be the basic approach.
+In contrast, if there is no reference to national law at all, then a concept may well fall to be given an autonomous meaning: see eg Criminal Proceedings against Kozlowski (Case C 66/08) [2009] QB 307, paras 42 43 and Criminal Proceedings against Mantello (Case 261/09) [2010] ECR I 11477, para 38.
+But even concepts the meaning of which is left to national law may require to be construed as subject to limitations deriving from general European legal principles: see eg Eman v College van burgemeester en wethouders van Den Haag (Case C 300/04) [2007] All ER (EC) 486.
+As a matter of construction, the provision in article 6(3) that each member state shall inform the Secretariat of the competent judicial authority under its law cannot in my view be read as making such information unchallengeable and binding all other member states to accept any authority whatever as judicial which any member state chooses to designate and nominate as such.
+In the light of the recitals and articles 1 and 6(1) and (2), the proper view of article 6(3) may well be that it does no more than address the question which judicial authority is competent.
+But, even if that is wrong, its language is too unspecific to remove from all scrutiny the question whether the authority nominated really does fulfil the express purpose of the Framework Decision to replace the traditional executive liaison with a new system of judicial cooperation between judicial authorities by virtue of judicial decisions.
+The Framework Decision must be viewed in the light of Title VI under which it was made.
+The pre Lisbon Treaty on European Union operated largely on a traditional, inter governmental basis.
+But it provided a structure of objectives, principles, powers and procedures within which individual measures such as the Framework Decision fell to be agreed and operated.
+The Framework Decision is a subsidiary measure, which must be interpreted subject to the general objectives and principles of and powers conferred by that Treaty: see Edward and Lane, European Union Law, 3rd ed (2013), paras 6.23 6.24.
+It is relevant that Title VI not only provides for judicial cooperation, but that the language of article 31(1)(a) one of the express jurisdictional bases of the Framework Decision (see para 9 above) expressly distinguishes between competent ministries and judicial or equivalent authorities.
+It is in my view implausible to suggest that, under the law of the European Union, the concept judicial in Title VI has no autonomous content whatever.
+If that is so, then the concept in the Framework Decision cannot give member states carte blanche to agree that each of them could put whatever meaning they chose upon the concept for the purposes of that measure.
+Further, even if the boundaries of judicial are under Title VI to be regarded as potentially limitless according to the nature and context of the powers being exercised, it by no means follows that the concept has equal width in the context of a specific measure like the Framework Decision.
+In this context, it does not to my mind advance the argument far to say that member states must be taken to trust each other, or that the Framework Decision was designed (as it clearly was) to eliminate delay and complexity (Dabas v High Court of Justice in Madrid, Spain [2007] UKHL 6, [2007] 2 AC 31, para 53, per Lord Hope of Craighead).
+The Framework Decision was agreed between member states.
+But, in a sensitive area which could involve the surrender of a member states own citizens, it was only agreed on the fundamental premise that the relevant decisions would be taken by and the relevant trust existed between judicial authorities.
+As Sir John Thomas observed, public confidence would not be advanced if this meant whatever individual member states chose it to mean.
+In a measure designed to do away with executive involvement, it is also unlikely that European law would leave it to the executive to identify whatever authority it chose as judicial.
+Even Lord Phillips sens vague interpretation of judicial authority distinguishes between an authority belonging to the system of justice, as opposed to the legislature or administration; and the distinction cannot be elided by accepting that any authority given the function of issuing a European arrest warrant must ex hypothesi be judicial.
+Section 2(7) of the 2003 Act
+Section 2(7) of the 2003 Act does not take the Ministries further.
+First, if the case advanced by Bucnys, Sakalis and Lavrov is right, then section 2(7) does not reflect article 6.
+Rather, it represents an additional safeguard, of the sort which Lord Hope in Office of the Kings Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, para 24 contemplated that Parliament might have included.
+The safeguard would require any judicial authority requesting surrender to be an authority with general authority to issue domestic arrest warrants.
+But, second, if that is wrong, then the certificate contemplated by section 2(7) is not concerned with the question whether an authority is judicial.
+The certificate is to state that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the issuing territory.
+Under section 2(2): A part 1 warrant is an arrest warrant which is issued by a judicial authority of the issuing territory.
+The certificate therefore assumes, but does not certify, that the issuing authority is judicial.
+If (as I consider) judicial is in the context of the Framework Decision a concept with autonomous content, then sections 2(2) and 2(7) must clearly be read (as they can be) as preserving and reflecting its autonomous meaning.
+How restricted the boundaries are of that autonomous meaning is a different matter.
+Bearing in mind the diversity within member states of judicial systems and arrangements, they may be quite relaxed.
+The Assange case witnesses to this.
+I will return to this aspect, after considering the second ground of challenge to the requests for surrender.
+Meaning of section 2(7)
+The second ground of challenge is that the Ministries of Justice of Lithuania and Estonia did not have the function of issuing domestic, as opposed to European, arrest warrants within their respective states and SOCAs certificates under section 2(7) were as a result invalid.
+The issue of a certificate under section 2(7) is a critical stage in the execution within the United Kingdom of a European arrest warrant.
+Without it there can be no arrest under section 3 and the person whose surrender is sought cannot be brought before the appropriate judge under section 4.
+Where a provisional arrest occurs under section 5, the certificate under section 2(7) must be produced to the judge within 48 hours, or such extended period as the judge may grant.
+Failing this, the person whose surrender is sought will have to be discharged under section 6.
+In the case law to date, it appears to have been assumed that the certificate contemplated by section 2(7) is a certificate relating to the function of issuing European arrest (or Part 1) warrants.
+But Mr James Lewis QC for Bucnys and Sakalis has made a powerful contrary submission, which Mr Alun Jones QC for Lavrov adopts.
+Mr Lewis points out that the drafters of the Act have been careful to use the concept Part 1 warrant when it first appears in any section, referring thereafter where appropriate simply to the warrant: see eg sections 2(3) and (5), 6(4) and 7(1) and (2).
+Yet in section 2(7) the drafters used the generic arrest warrants, when they could have used specific wording like such warrants or such a warrant.
+Further, as the House of Lords held in Louca v Public Prosecutor, Bielefeld, Germany [2009] UKSC 4, [2009] 1 WLR 2550, the words any other warrant in section 2(4) do refer to any domestic arrest warrant that may exist.
+On the other hand, section 2(2) makes clear that a Part 1 warrant is a type of arrest warrant, there were strong contextual reasons for the conclusion in Louca and it is possible that the drafters did not use the phrase such warrants in section 2(7) because other member states do not have Part 1 warrants; rather they issue European arrest warrants or some other nationally expressed equivalent, when giving effect to the Framework Decision.
+Mr Lewis responds to this last point by noting that, if the drafters had had in mind the authority which had the function under domestic law of issuing European arrest warrants and was so designated under article 6(3), they could easily have made this clear by substituting for the last 18 words of section 2(7) words such as has been designated to the Secretariat of the Council of Ministers under article 6(3) of the Framework Decision as having the function of issuing European arrest warrants in the category 1 territory.
+If section 2(7) were intended as a safeguard, it would have odd features.
+First, it would require SOCA to investigate overseas practice, rather than look at the information given to the Secretariat under article 6(3) of the Framework Decision.
+Second, it would mean that SOCA should refuse a certificate in respect of any request coming from a state which chose to assign competence to issue European arrest warrants to a specialist or different (perhaps a higher) judicial body than that responsible for domestic arrest warrants.
+It is true that in the present certificates SOCA certified, inter alia, that the Part 1 warrants issued by the Ministries of Justice were issued by a judicial authority, with the function of issuing arrest warrants.
+But it was no part of their statutory function to purport to certify the judicial nature of the issuers, and their doing so can have had no effect in law if the authority certified was not truly judicial within the meaning of the Framework Decision and Act.
+Mr Lewis submits that a conclusive indication as to the nature of the function of issuing arrest warrants to which section 2(7) refers is provided by section 212.
+Section 212 deals with alerts issued at the request of an authority of a category 1 territory under article 95 of the Convention implementing the Schengen Agreement of 14 June 1985 (OJ L 239, p 19).
+The history of section 212 is described in para 258 of my judgment in Assange [2012] 2 AC 471.
+Article 95 reads: 95.1.
+Data on persons wanted for arrest for extradition purposes shall be entered at the request of the judicial authority of the requesting contracting party. 2.
+Before issuing an alert, the contracting party shall check whether the arrest is authorised under the national law of the requested contracting parties.
+If the contracting party issuing the alert has any doubts, it must consult the other contracting parties concerned.
+The contracting party issuing the alert shall send the requested contracting parties by the quickest means possible both the alert and the following essential information relating to the case: (a) the authority which issued the request for arrest; (b) whether there is an arrest warrant or other document having the same legal effect, or an enforceable judgment; (c) the nature and legal classification of the offence; (d) a description of the circumstances in which the offence was committed, including the time, place and the degree of participation in the offence by the person for whom the alert has been issued; (e) in so far as is possible, the consequences of the offence.
+The Schengen alert system thus operates through data entered at the request of a domestic judicial authority, but sent by one contracting state to another.
+To give continuing effect to this system, section 212 of the 2003 Act, as amended by section 68 of the Policing and Crime Act 2009, provided (originally on a temporary, but in the event on a continuing basis) that, where an article 95 alert is issued, then (2) The reference in section 2(2) to an arrest warrant issued by a judicial authority of a category 1 territory is to be read: (a) as if it were a reference to the alert issued at the request of the authority, and (b) as if the alert included any information sent with it which relates to the case. (3) In consequence of subsection (2), this Act has effect with these modifications (a) in sections 2(7) and (8) . for authority which issued the Part 1 warrant substitute authority at the request of which the alert was issued; .
+The effect of section 212 is thus that sections 2(7) and (8) must, in the context of article 95 Schengen alerts be read: (7) The designated authority may issue a certificate under this section if it believes that the authority at the request of which the alert was issued has the function of issuing arrest warrants in the category 1 territory. (8) A certificate under this section must certify that the authority at the request of which the alert was issued has the function of issuing arrest warrants in the category 1 territory.
+When certifying under section 212, SOCA must be intended to focus on the question whether the domestic judicial authority at the request of which the data were put on the Schengen system in the overseas state had the function of issuing domestic arrest warrants.
+This shows, Mr Lewis submits, that the very same words used in their original unmodified form in section 2(7) and (8) must also focus on the function of issuing domestic arrest warrants.
+In my view, that does not follow.
+When section 212 is in play, there is only one possible judicial authority in play, that is the overseas judicial authority at whose instance the Schengen alert is entered on the system and which is distinct from the contracting state by which the alert is communicated to the United Kingdom.
+It is natural that any certificate required should look at the status and functions of that overseas domestic judicial authority.
+When section 212 is not in play, the directly relevant judicial authority is the authority which issues the European arrest warrant.
+The status and functions of the authority issuing any domestic warrant (if any) are of subsidiary interest, even though the existence of any such domestic warrant will need to be noted in the European arrest warrant under article 8(1)(c) of the Framework Decision and section 2(4)(b) of the 2003 Act, as decided in Louca [2009] 1 WLR 2550.
+It is therefore possible for the same phrase to point in different directions in these two different contexts.
+To treat section 212 as altering what would otherwise be the appropriate meaning to put on section 2(7) and (8) would, in my view, be to treat the tail as wagging the dog.
+Mr Lewis seeks to rely on Parliamentary material under the principle in Pepper v Hart [1993] AC 593.
+That involves showing that the provision is ambiguous or obscure and that there are ministerial statements which, viewed in the context of the Parliamentary material as a whole, provide a clear answer as to its meaning.
+I do not consider that these conditions are met.
+I doubt whether section 2(7) is even sufficiently ambiguous or obscure to justify looking at Parliamentary material on this point.
+Assuming that it is, it is true that one finds ministerial statements that European arrest warrants would be issued by precisely the same authorities as currently issued the (necessarily domestic) warrants on the basis of which executive requests were previously made between states for surrender: see eg Mr Ainsworths statements in Standing Committee on 9 January 2003 (Hansard (HC Debates), col. 48), which I quoted in Assange [2012] 2 AC 471, para 253.
+But immediately afterwards Mr Ainsworth went on to say that By the time that countries start to operate the European arrest warrant, we will know which authorities will be competent to issue them.
+It will be reasonably straightforward for the issuing authority to be identified and it will be possible to cross check them with the central record kept by the general secretariat and a little later (at col 51) that If the issuing authority were not a judicial authority as designated in the framework document, the body charged with certifying would not accept the warrant.
+These statements made clear that in the ministers mind certification was linked with the information provided under article 6 of the Framework Decision, which goes to the function of issuing European arrest warrants, not domestic warrants.
+The upshot is that neither in these nor in any other passages is there the clarity of statement that could assist to put a different meaning on section 2(7) to that which I consider otherwise follows on ordinary principles of construction.
+In my view, section 2(7) must (other than in the context of Schengen alerts under section 212) be taken as referring, however awkwardly, to the function of issuing European arrest warrants, not domestic.
+Judicial authority
+The second ground of challenge to the requests therefore fails, and I turn to consider whether the Ministries can be regarded as judicial authorities for the purposes of issuing the requests in issue on these appeals.
+The question is whether the concept of judicial authority embraces any category of persons beyond courts, judges, magistrates and (in the light of Assange) public prosecutors, and if so in what circumstances.
+Mr Knowles argued for a positive answer, relying on all five reasons on which Lord Phillips based his judgment in Assange.
+But only one of these reasons received any real endorsement even in the other majority judgments in that case: see Lord Walker at para 92.
+Lord Brown at para 95, Lord Kerr generally and Lord Dyson at paras 155 to 159 and 171.
+I add only, with regard to the third reason, that I agree with Lord Dyson (para 158) that the removal from the December 2001 Council redraft of the Commissions September 2001 proposal of definitions of judicial authority in terms of a judge or public prosecutor provides no basis for concluding that it was intended to broaden the scope of the concept beyond judge or public prosecutor.
+It is at least as likely that there were considerable reservations in some member states about appearing to accept a judge or public prosecutor as an appropriate judicial authority for the purposes of both issuing and executing European arrest warrants, as would have been the effect of the definitions included in the September 2001 proposal.
+Any further conclusion would be speculation.
+As regards the fourth reason, I also agree with Lord Dyson (para 159) that the assumption in article 6 that there may be a range of judicial authorities from which to chose that which is to be competent to issue European arrest warrants says nothing significant about the scope of the concept of judicial authority.
+This is all the more so, now that it is decided by Assange that the range can include both courts and public prosecutors.
+The one ground which did influence most members of the court in Assange was Lord Phillips fifth and final ground, based on applying the principles of the Vienna Convention on the Law of Treaties 1969 to the international agreement reached under Title VI and embodied in the Framework Decision.
+As appears by the five paragraph coda which appears at the end of the Courts judgment in Assange as published in [2012] 2 AC 471, 569 570, the relevance of the principles in the Vienna Convention was assumed, not argued, in Assange.
+When, after the draft judgment on the substance was handed down, Miss Rose QC applied to re open the appeal to take issue with the relevance of the Vienna Convention, her application was rejected as being without merit, not because the point she wished now to raise would itself have been meritless, but because it was too late to do so on that appeal.
+She had had her chance to raise it during the course of oral argument before the hand down, but had accepted that the Vienna Convention applied and that state practice was a potentially relevant aid to construction.
+On the present appeals, there has been no such acceptance.
+The applicability of the Vienna Convention and the relevance of state practice have been put squarely in issue.
+The issue is of potential relevance (though each countrys law and practice may raise different considerations) because, in addition to Lithuania and Estonia, it appears that Finland and Sweden have under article 6 designated bodies operating as part of or under their Ministries of Justice as their issuing judicial authority in the case of conviction warrants in the case of Finland the Criminal Sanctions Agency, in the case of Sweden the National Police Board; and Germany has designated its Ministry of Justice, although stating that its powers have been transferred to the public prosecutor at the relevant regional court.
+Further, two countries have designated their Ministries of Justice as their issuing authority in the case of accusation warrants Denmark outright, and Germany subject to the same transfer of powers to the regional public prosecutor.
+The evidence of state practice is thus, on any view, much more limited than that which existed in relation to the use of public prosecutors as recounted in Assange, where it appeared that some 11 states had nominated public prosecutors in the case of accusation warrants and some ten in relation to post conviction warrants. (The information now before the court indicates that these figures were slightly inaccurate, and should have been ten, or pre trial 12, in the case of accusation warrants and eight in the case of conviction warrants.) Nonetheless, Mr Knowles submits that the designation of Ministries of Justice should, even if limited, be regarded as significant, because of the absence of evidence that other states have challenged the designation or refused to execute warrants.
+Bearing in mind that it is unclear how far any challenge would fall to be raised by executing states, rather than by the persons whose surrender was sought, and that there has been no detailed study of state legislation or practice in cases where it is by implication suggested that a challenge might have been raised, I am unimpressed by the strength of the alleged practice as an indicator of any agreement of the state parties regarding interpretation, within the meaning of article 31(3)(c) of the Vienna Convention.
+As I noted in Assange, at para 242, the fact that three states (Denmark, Germany and Romania) have also designated their Ministries of Justice as executing judicial authorities is also capable of raising questions about the reliability of state practice as a guide, even if otherwise admissible.
+As to the question of principle, whether the Vienna Convention is applicable to the Framework Decision, in my view it is unlikely as a matter of European law that it is or would be so regarded.
+For reasons already indicated in paragraph 23 above, the Framework Decision must be understood in the context of Title VI of the pre Lisbon Treaty on European Union, and the structure of objectives, principles, powers and procedures contained in that Treaty, including, where individual States agreed, provisions relating to the Court of Justices jurisdiction: see eg articles 2 to 6, 29, 31, 35 and 39.
+So viewed, I do not consider it correct to describe the Framework Decision as a treaty at all.
+It is a subsidiary measure, which fell to be agreed by unanimity within the scope of the powers conferred by, as well as in accordance with the procedures defined by, the pre Lisbon Treaty on European Union.
+It must be interpreted as such: see the passages from Edward and Lane cited in paragraph 23 above.
+Under the pre Lisbon Treaty on European Union, among the important pre conditions to the agreement of the Framework Decision was the express requirement under article 39(1) for the Council to consult the European Parliament upon it as a measure agreed for facilitating extradition within article 34(2)(b).
+The European Parliament had three months to deliver an opinion upon the measure.
+Its opinion, delivered on 9 January 2002, approved the measure, but with the request that the Council notify the Parliament should it intend to depart from the approved text.
+The argument that subsequent state practice by members of the Council could change or affect the meaning of a Framework Decision potentially sidelines the European Parliaments role.
+For that reason alone, it is not one that I believe that the Court of Justice would be likely to endorse even under the pre Lisbon Treaty on European Union.
+There is a striking absence in the textbooks and case law of any reference to, or any instance of the application of, subsequent member state practice as establishing the agreement of member states to a particular interpretation, or as having any real relevance to interpretation, of a measure introduced under any of the European Treaties.
+The court was referred to The Court and the Tribunal of the EC and the Vienna Convention on the Law of Treaties 1969, an article by P J Kuijper (a legal adviser to the Commission), published in Legal Issues of European Integration, (1998) vol 25, issue No 1.
+The article focuses on references to the Vienna Convention in relation to treaties and secondary legal acts entered into by the Community with third parties.
+The European Treaties themselves are of a special and different nature, as the article points out with reference to the Court of Justices Opinion 1/91 [1991] ECR I 6079.
+In that Opinion the court said: 21 In contrast, the EEC Treaty, albeit concluded in the form of an international agreement, none the less constitutes the constitutional charter of a Community based on the rule of law.
+As the Court of Justice has consistently held, the Community treaties established a new legal order for the benefit of which the states have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only member states but also their nationals (see, in particular, the judgment in Van Gend en Loos (Case 26/62) [1963] ECR 1).
+The essential characteristics of the Community legal order which has thus been established are in particular its primacy over the law of the member states and the direct effect of a whole series of provisions which are applicable to their nationals and to the member states themselves.
+With regard to the possibility that subsequent practice might influence the interpretation of Community law, the article at pp 9 10 states bluntly that: It may be interesting to recall here that, as far as Community law is concerned, and certainly where the provisions of the Community Treaty are concerned, the Court of Justice does not accept arguments of subsequent practice at all.
+The Court in such cases has recourse to the standard phrase that mere practice cannot change the treaty.
+Cited in support are French Republic v Commission of the European Communities (Case C 327/91) [1994] ECR I 3641 and the Court of Justices Opinion 1/94 [1994] ECR I 5267.
+In the former, the issue was the extent of the Commissions powers to conclude agreements with third countries, under article 228 EEC which provided for such agreements to be negotiated by the Commission and concluded by the Council after consulting the Parliament subject to the powers vested in the Commission (reconnues la Commission) in this field.
+The Commission argued that its powers might be derived from previous practice of the respective Community institutions, to which the Court observed (para 36) that a mere practice cannot override the provisions of the Treaty.
+Likewise, the court held in United Kingdom of Great Britain and Northern Ireland v Council of the European Communities (Case 68/86) ECR 855, para 24, and reiterated in its Opinion 1/94 [1994] ECR I 5267 in relation to suggested external competence in the field of GATs (the General Agreement on Trade in Services) that a mere practice of the Council cannot derogate from the rules laid down in the Treaty and cannot, therefore, create a precedent binding on Community institutions with regard to the correct legal basis (para 52), that, it would, in the field of TRIPs (trade related aspects of intellectual property rights), enable the Community institutions to escape the internal constraints to which they are subject in relation to procedures and to rules as to voting (para 60) and that Institutional practice in relation to autonomous measures or external agreements adopted on the basis of article 113 cannot alter this conclusion (para 61).
+These statements, made in the context of arguments about institutional competence under the Treaties themselves, are a strong indicator of the attitude that the court would take to any suggestion that the member states could by agreement between themselves alter or influence the meaning of Community measures arrived at under the Treaties, following procedures for their negotiation and enactment, including consultation with the European Parliament, contained in such Treaties.
+The only case which the Ministries have been able to locate in which the court might be said to have taken account of member state practice in interpreting a Community instrument under any of the European Treaties is Skatteministeriet v Henriksen (Case 173/88) [1989] ECR 2763.
+There, after giving its reasons for a particular construction, the court added a paragraph saying: That interpretation is also in conformity with the view common to all the member states, none of which has adopted legislation [consistent with the interpretation which the court rejected] (para 13)
+That comment, in a case where member states view or practice was consistent with that at which the court had arrived, is wholly inapt to show that such practice is capable of changing the meaning of an autonomous European concept in a Community or Union instrument agreed under the Treaties.
+I can therefore put aside the suggestion that member states alleged practice can affect the question whether the Ministries are capable of being designated as judicial authorities for the purpose of issuing European arrest warrants under the Framework Decision.
+Equally, however, the interpretation of the Framework Decision cannot, as it seems to me, be influenced by comments made in some evaluation reports to the effect that Ministries of Justice are not judicial authorities: see eg Council Evaluation Report on Lithuania 12399/1/07, para 7.2.1.1, reporting that The Lithuanian authorities recognised that EAWs should be issued by judicial authorities and that the Ministry of Justice could not be considered a judicial authority; and the Commission report on the operation of the Framework Decision COM(207) 407, commenting in relation to both Lithuania and Estonia that the Ministry of Justice is not a judicial authority.
+In my opinion, the concept of judicial authority falls simply to be interpreted in the teleological and contextual manner that Professor Anthony Arnull indicates in The European Union and its Court of Justice, 2nd ed (2006), pp. 612 and 621, as I stated in paragraph 229 of my judgment in Assange [2012] 2 AC 471.
+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.
+The special emphasis in recital 6 on the importance of this concept in the context of execution of European arrest warrants indicates a possible difference between its significance in the contexts of issuing and executing a European arrest warrant.
+Likewise, article 19 with its distinction between the competent executing judicial authority and another judicial authority which may need to be involved at the hearing stage in order to ensure the proper application of this article and of the conditions laid down.
+This leads to consideration of the features which an authority must as a minimum have, if it is to be regarded as an issuing judicial authority for the purposes of the Framework Decision.
+Mr Lewis, submits that they are three: (i) it must be functionally independent of the executive, (ii) it must be capable of making a judicial decision and (iii) it must be separate from the designated central authority, a separation assumed by recital 9 and article 7.
+In Assange, at para 153, Lord Dyson was inclined to think that the essential characteristics of an issuing judicial authority are that it should be functionally (but not necessarily institutionally) independent of the executive.
+In the Administrative Court in the present cases, Aikens LJ considered that a ministry of justice could be an issuing judicial authority for a conviction warrant if the person in the ministry making the decision was sufficiently independent of the executive for the purposes of making that judicial decision and thought, in this connection, that there was much force in Lord Phillips point [in Assange [2012] 2 AC 471, paras 62 64] about the requisite safeguards being predominantly in the antecedent process which forms the basis on which the conviction European arrest warrant is issued (para 98).
+I would make three points in relation to these observations.
+First, Assange was a case of an accusation warrant and Lord Dyson noted at paras 156 157 the difficulty about Lord Phillips point, which constituted his second reason in Assange (see paras 62 64): there is no guarantee that a domestic accusation warrant would be based on any judicial decision at all, and the implications of a European arrest warrant are likely to be more serious than those of a domestic arrest warrant.
+Second, a test which would mean seeking to ascertain whether one or more individual decision makers within a ministry was or were functionally, even though not institutionally, independent of the ministry in which they served, may be regarded as problematic, both in principle and because of the evidential issues to which it could give rise.
+On no view, in any event, would the Minister of Justice signing on behalf of the Ministry of Justice of Lithuania appear to satisfy any such test.
+I need say no more than that on these appeals.
+Third, Aikens LJ must I think have had this point in mind when he went on, immediately after his above quoted observations, to focus his conclusions on the need for a prior court request that a European arrest warrant should be issued, and on the consequent restriction of any positive ministry role to determining that effect be given to such a request: If the national law concerned provides that the pre condition to the issue of a conviction EAW by the ministry of justice is that there must be not only an enforceable judgment and sentence but also a request from the sentencing court that a conviction EAW be issued, then the scope for executive interference is much reduced if not entirely eliminated. (para 98) This postulates a situation in which the ministrys decision to issue a conviction European arrest warrant has by law to be and is firmly founded on a judicial decision by the responsible court that such a warrant is appropriate.
+Consistently with this approach, both Ministries of Justice sought in their submissions and evidence to meet the criteria suggested by Aikens LJ.
+Accusation and conviction warrants do not necessarily raise the same considerations.
+A conviction warrant must necessarily have been preceded by a domestic court process.
+There is less scope for discretion in relation to the issue of a European arrest warrant following from a conviction.
+If the court responsible for the conviction or execution of the sentence considers that the European arrest warrant should be sought, and the issue of such a warrant follows from its decision, then the issue of the warrant can be regarded as the result of a judicial decision, even though the issue takes place by and in the name of a different authority.
+The key question is whether the issuing authority can in such a case be regarded as a judicial authority for the purposes of the Framework Decision or 2003 Act, when it is, as here, the Ministry of Justice or a section within that Ministry.
+Mr Lewis and Mr Jones submit that it cannot, on the basis that a body, which cannot act of its own initiative and which simply box ticks, cannot be a judicial authority taking a judicial decision.
+They also point out that the two Ministries have also been designated as their respective countries central authorities for the purposes of article 7, in circumstances where both recital 9 and article 7 contemplate that such a body will be separate from and have a limited role in proving practical and administrative assistance to the competent judicial authorities.
+Before going further into these questions, it is however relevant to look more closely at the evidence and facts in the cases under appeal.
+The evidential material
+The Administrative Court proceeded on the basis that the two requests made by the Ministry of Justice of Lithuania were based in each case upon a request made by a court, not by a prison or the Prison Department; the functions of the officials of the Ministry were tightly defined by the Rules and the decision on whether to issue the conviction European arrest warrant has to be made on the basis of those Rules alone (para 104).
+The warrants, though signed for the Ministry by the Minister of Justice, were on this basis regarded as issued by a judicial authority.
+In relation to the procedure in Estonia there was, however, much less material before the Administrative Court; there appeared to be no requirement that the sentencing court must prepare a draft European arrest warrant and then request the ministry to issue the European arrest warrant and no procedural rules which dictate what the ministry officials have to do or which dictate the time in which a request to issue a conviction warrant be carried out.
+The court was not satisfied that the Ministry of Justice of Estonias decision to issue a European arrest warrant could be regarded as judicial or that the International Judicial Cooperation Unit within that Ministry and its personnel had sufficient functional independence from the executive to enable the Ministry to be characterised as a judicial authority for the relevant purposes (para 106).
+Before the Supreme Court further material has been produced, in relation to both the Lithuanian and the Estonian positions.
+Mr Lewis referred to and relied upon the Lithuanian material as did eventually Mr Jones, after initially objecting to its admission.
+I for my part consider that the new material should be admitted and considered, even though it should have been before the Administrative Court.
+Without it, it is clear that we would be at risk of deciding these appeals on a false basis.
+The Lithuanian position
+The picture which emerges in relation to Lithuania from communications to the Crown Prosecution Service by the Vice Minister of Justice is that the Ministry only issues any European arrest warrant after conviction on the initiative of either (a) a court or (b) an authority responsible for executing the sentence.
+It does so then after examination of all the documents to ascertain that valid grounds exist for issuing such a warrant.
+In this connection, article 69 of the Code of Criminal Procedure provides: 2.
+European arrest warrants regarding citizens of the Republic of Lithuania or other persons who have been sentenced to imprisonment by enforceable judgments in the Republic of Lithuania and who have absconded from serving the sentence in another member state of the European Union shall be issued and competent authorities of that state shall be contacted by the Ministry of Justice of the Republic of Lithuania. 3.
+The procedure for issuing a European arrest warrant and surrendering the person under the European arrest warrant shall be defined by the Prosecutor General of the Republic of Lithuania and by the Minister of Justice of the Republic of Lithuania.
+Under article 69(3), the following Rules for issuing European arrest warrant were duly promulgated by Order no. IR 95/I 114 of 26 August 2004.
+They provide: I. GENERAL PROVISIONS 4.
+The Ministry of Justice of the Republic of Lithuania shall issue the European arrest warrant with a view to arrest a person who has been punished by custodial sentence but who has gone into hiding from the enforcement of this sentence.
+In this case the European arrest warrant shall be issued under the following circumstances: 4.1. when the remainder of the sentence to be served is of four months or of longer term; 4.2. when there is a ground to believe that the convicted person may be located in the member state of the European Union or other State, which applies the surrender procedure of the persons concerned pursuant to the European Arrest Warrant.
+RECOURSE FOR WARRANT 7.
+If the case has been heard in the trial and the judgement of conviction rendered in absentia of the accused, the court shall send a copy of the enforceable judgement of conviction whereby a sentence of imprisonment has been imposed together with the draft European arrest warrant (except section (i)) to the Ministry of Justice of the Republic of Lithuania after taking into consideration the criteria for ISSUING EUROPEAN ARREST issuing a European arrest warrant laid down in paragraph 12 of the Rules. 8.
+If the convicted person, who has not been arrested until the court judgement became enforceable, absconds from the execution of the custodial sentence imposed on him by the court's judgment, or if the convicted person while serving his custodial sentence runs away from the correctional institution or fails to return there, the request to issue the European arrest warrant shall be submitted to the Ministry of Justice by the institution executing the sentence after taking into consideration the criteria for issuing a European arrest warrant laid down in paragraph 12 of the Rules.
+A copy of the enforceable judgement of conviction whereby a sentence of imprisonment has been imposed and the draft European arrest warrant (except section (i)) shall be enclosed with the request. 9.
+When the court renders a Ruling to quash the suspension of the sentence execution, a Ruling to quash either a conditional early release from custodial sentence or conversion of the remainder of the sentence into a more lenient punishment or a Ruling to refer the person released conditionally from the correctional institution to serve the remaining sentence of imprisonment in the correctional institution, the court shall forward a copy of the aforesaid Ruling together with the draft European arrest warrant (except section (i)) to the Ministry of Justice of the Republic of Lithuania after taking into consideration the criteria for issuing a European arrest warrant laid down in paragraph 12 of the Rules. III.
+ISSUING OF THE EUROPEAN ARREST WARRANT 12.
+Upon receiving the documents set out in Chapter II of these Rules, the Prosecutor General's Office of the Republic of Lithuanian or the Ministry of Justice of the Republic of Lithuania shall analyse the above documents and, if there are all preconditions listed in paragraphs 3 or 4 of the Rules, shall issue the European arrest warrant taking into consideration the severity and type of the offence committed and the suspected, accused or convicted person's personality.
+If the information is insufficient to issue the European arrest warrant, the Prosecutor General's Office of the Republic of Lithuania or the Ministry of Justice of the Republic of Lithuania shall contact the institution, which has requested to issue the European arrest warrant, asking to provide the missing information within the time limit specified by the Prosecutor General's Office of the Republic of Lithuania or the Ministry of Justice of the Republic of Lithuania.
+If there are no grounds for issuing the European arrest warrant or the missing information is not obtained during the time limit defined, or if the issuance of the European arrest warrant does not satisfy the principles of proportionality and procedural economy, the request to issue the European arrest warrant shall be returned to the requesting institution. 13.
+The European arrest warrant shall be issued not later than within 5 days after receiving all information necessary for preparing the European arrest warrant. 14.
+The European arrest warrant shall be prepared in accordance with the form contained in the Annex 1 of these Rules. 16. if the European arrest warrant is issued by the Ministry of Justice of the Republic of Lithuania, then it shall be undersigned by the Minister of Justice of the Republic of Lithuania or his delegated persons.
+Contrary to the Administrative Courts understanding, it is now clear (from the Ministry of Justices letter dated 5 November 2012) that, while the request made to the Ministry of Justice in respect of Bucnys, came under rule 9 from the Vilnius City 1st District Court after it had on 20 February 2010 quashed Bucnyss conditional release, the request in respect of Sakalis came from the Prison Department of the Republic under rule 8, based on its assessment that Sakalis had absconded from the whole of the four year sentence imposed by the Vilnius City 1st District Court on 25 January 2008 and upheld on appeal on 24 December 2008.
+The Vice Minister of Justice of Lithuania has explained in correspondence put before the Supreme Court that the prison department would only act after being provided by the Vilnius City 1st District Court with relevant documentation regarding the conviction and sentence.
+It does not follow that the District Court made any sort of judicial decision at this point and the evidence does not show that it did.
+Both in law and in practice, the responsibility for requesting the Ministry of Justice to issue a European arrest warrant rested on the prison authorities, upon which rule 8 conferred it.
+In these circumstances, I cannot regard the European arrest warrant issued in respect of Sakalis as having been either issued by a judicial authority or as being the result of a judicial decision.
+The Prison Department is an executive agency charged, as rule 8 states, with the execution of the sentence.
+It is not a judicial body considering and ruling upon the question whether the person wanted has absconded.
+The language of rules 8 and 12, read together, makes it possible (though surprising) that the Prison Department is required before submitting a request to issue a European arrest warrant to the Ministry to take into consideration the severity and type of the offence committed and the . convicted persons personality.
+In other words, it may have a discretion.
+If so, the evident oddity in the context of a European arrest warrant of such a discretion being entrusted to a prison department merely underlines the fact that it cannot be regarded as a judicial authority.
+The Ministry of Justice after receiving the Prison Department request is under rule 12 required not only to consider for itself whether the formal pre conditions listed in rule 4 are satisfied but (it appears) also to take into consideration the severity and type of the offence and the . convicted persons personality.
+Assuming again that this connotes an element of discretion, even in the case of a conviction, as to whether it issues a warrant, the mere fact that the Ministry of Justice is given a discretion does not make it a judicial body.
+If anything, it points once again towards a need for a judicial decision by a body or bodies which could be regarded as judicial.
+I would therefore allow the appeal by Sakalis and set aside the Part 1 warrant issued in respect of him.
+The position in relation to Bucnys is different.
+Under the combination of rules 9 and 12, the Vilnius City 1st District Court not only took the decision to quash his conditional release on 12 September 2008, it also forwarded copies of its ruling to the Minister with a draft European arrest warrant, and it must be taken to have done this after taking into account the criteria for issuing such a warrant laid down in rule 12, including the severity and type of the offence and the . convicted persons personality.
+The Ministry of Justices only role was to repeat the same exercise.
+Its review could not worsen the position of the convicted person.
+At best, if the Ministry took a different view on the question whether the criteria were met, its review might lead to a decision not to issue a European arrest warrant which the Vilnius court had adjudged to be appropriate.
+Essentially, therefore, the European arrest warrant issued in respect of Bucnys emanated from the court responsible for him having to serve a further period in prison.
+That was a judicial decision by a judicial authority.
+The Ministry by issuing the warrant effectively endorsed that decision.
+Under article 7 of the Framework Decision, it would have been permissible for Lithuania to designate the Vilnius City 1st District Court as the relevant judicial authority and to restrict the Ministrys role to its capacity of central authority.
+If a court were to out source its registry and the registry were to be designated as the judicial authority responsible for issuing warrants or other orders to give effect to the courts orders, it should I think be possible to regard the registry as a judicial authority issuing a judicial decision, even though or because it would simply be giving effect to the courts orders.
+In the present case, it appears that the Ministry of Justice had some discretion, but only in the sense of a one way discretion to check that, in its view also, a European arrest warrant was appropriate.
+This requirement for two concurrent decisions in favour of such a warrant could only operate to the benefit of the person whose surrender was proposed by the court responsible for the conviction or sentence.
+In these circumstances, I consider that European law would accept that the spirit of the Framework Decision was met in the case of European arrest conviction warrants issued by the Ministry of Justice of Lithuania to give effect to a corresponding request by the Court responsible for the sentence, and would treat the Ministry of Justice in that context as an appropriate issuing judicial authority.
+I have been addressing the present situation of a Ministry of Justice acting at the request of the responsible court.
+It is possible that the spirit of the Framework Decision may also be satisfied in some other situations, for example when a Ministry of Justice acts on the basis of a request made by a public prosecutor, held by this court in Assange to be capable of being regarded as a judicial authority.
+To take a specific instance, in Germany the Ministry of Justice is designated as the relevant judicial authority for the purpose of issuing conviction (and indeed also accusation) European arrest warrants, but has in some way transferred or delegated its role to the public prosecutor at the relevant regional court.
+As we have no details of the arrangements or how they operate, I can express no conclusion either way, but it may prove appropriate to treat the Federal Ministry of Justice as the issuing judicial authority, when a German public prosecutors decision that a conviction European arrest warrant should be issued is simply endorsed by or leads to the issue of such a warrant in the name of the Ministry.
+The Estonian position
+Turning to the position of the European arrest warrant issued by the Head of the International Cooperation Unit of the Estonian Ministry of Justice, it is now known that the Viru County Court on 10 February 2011, on learning that Lavrov was living in the United Kingdom, sent a request to the Ministry of Justice to issue a warrant to give effect to the domestic arrest warrant that it had itself issued on 9 February 2010.
+There is also substantial further information about the Estonian legal position in the form of answers dated 28 February 2013 to a questionnaire submitted by the Crown Prosecution Service.
+The legal framework is contained in article 507 of the Code of Criminal Procedure of Estonia which reads: Submission of European arrest warrant (1) In pre trial proceedings, the Prosecutor's Office and, in court proceedings, the court which conducts proceedings regarding a criminal offence which is the basis for a European arrest warrant is competent to submit the European arrest warrant. (2) The Ministry of Justice is competent to submit a European arrest warrant for the execution of a court judgment which has entered into force. (21) In pre trial proceedings, a preliminary investigation judge may, at the request of the Prosecutor's Office, apply arrest for surrender before preparation of a European arrest warrant. (22) If surrender of a person is requested in court proceedings, the arrest for surrender of the person shall be applied by the court which conducts proceedings regarding the criminal offence. (3) A European arrest warrant shall be prepared in Estonian and it shall be translated into the language determined by the requesting state by the Ministry of Justice. (4) A European arrest warrant shall be communicated to a requesting state through the Ministry of Justice. (5) In cases of urgency, a request for application of arrest for surrender with regard to a person to be surrendered may be submitted to a member state of the European Union through the International Criminal Police Organisation (Interpol) or the central authority responsible for the national section of the Schengen Information System with the consent of the Prosecutor's Office before a European arrest warrant is submitted.
+In the case of Lavrov, articles 507(2) and 507(22) both applied.
+The Deputy
+Secretary General of the Ministry of Justice explained by letter dated 28 February 2013: The court ruling declaring the person a wanted and applying arrest on sight towards him or her is the prerequisite for later issuance of a European arrest warrant.
+No European arrest warrant can be issued without a court first declaring the person a wanted and applying arrest on sight (domestic arrest warrant) towards him or her.
+Pursuant to section 507 (21) and (22) of the Estonian Code of Criminal Procedure, applying arrest for surrender is a prerequisite for issuing an European arrest warrant.
+If no arrest pending surrender has been applied towards the person, then an European arrest warrant cannot be issued.
+This letter gives the following further information: in this current case a court requested the Ministry of Justice to issue a European arrest warrant on the basis of court decisions entered into force.
+The issuance of an European arrest warrant in conviction cases by the Estonian Ministry of Justice only takes place upon request by the court who made the decision in the specific case or a court that has the competence to issue the arrest warrant and to declare the person a fugitive in cases where the person was convicted by conditional sentence and the person escaped from the execution of sentence or the person was in freedom during the court procedures but has to appear to prison on a specific date and time to start the service of his/her sentence.
+Thus, this is the court that sends to the Ministry of Justice the judgment or ruling with request to issue the European arrest warrant.
+The court's decision has to be either a final and enforceable judgment satisfying the requirements of the framework decision or a domestic arrest warrant stating that the detention conditions are met.
+The only restrictions that the Ministry of Justice is obliged to follow upon issuing a European arrest warrant on a court's request, are the general restrictions on issuing of European arrest warrants from [the] Framework Decision ie the requirement that the punishment of imprisonment applicable to a crime for which the person has been convicted must be longer than four months of imprisonment.
+If the materials sent to the Ministry of Justice for issuance of an European arrest warrant regarding a person towards whom the court has applied arrest for surrender, indicate that the actual punishment imposed on the person or actually servable part thereof is less than four months, then the Ministry of Justice may inform the court that there are no legal grounds for issuing an EAW.
+In other cases the court's request to issue a specific EAW is compulsory for the Ministry of Justice.
+The same letter also addresses the possibility that a European arrest warrant might be issued under executive influence: The Judicial Co operation Unit is one of the structural units of the Ministry of Justice, but it is independent in its decisions and bases its actions solely on the law and the international instruments.
+This independence is also expressed in the fact that all documents prepared by the unit, ie both European arrest warrants and MLA [mutual legal assistance] requests for judicial assistance are undersigned by the head of unit or the advisor who prepared the letter.
+All materials, ie requests from courts, materials of the prosecutor's office, and also judicial co operation materials and requests for legal assistance received from abroad are forwarded from the Ministry's office directly to the Judicial Co operation Unit without passing through the Minister, the Secretary General or the Deputy Secretary General.
+Therefore the executive has no information about whether, how much or which judicial co operation materials are being preceded by the unit at any time.
+There has been no intervention by the executive in the unit's work and there cannot be any intervention of that kind because communication in the field of international law is very strictly regulated by domestic legislation and by various other legal acts, so it is unthinkable that the Minister or the Secretary General could order the issuance of some request for legal assistance without the initiative of a prosecutor's office or a court.
+International judicial co operation is very strictly and precisely regulated by various international conventions and treaties which prescribe also the role and competence of Ministries of Justice as central authorities.
+It is unthinkable that the Ministry of Justice could exceed its limits of competence by way of its executive ordering a request for legal assistance for which the Ministry of Justice has competence.
+It is also unthinkable that the executive of the Ministry of Justice could order that a request for legal assistance be not issued or not forwarded.
+As described above, in daily work the management has no information at all about the requests that are preceded [sic] by the Unit at any given time.
+Furthermore, the Public Service Act of the Republic of Estonia prohibits (article 62) unlawful orders from the executive and gives the ways how to react in such situations.
+On the basis of this detailed description of the legal, procedural and practical position, it is clear that the real decision is taken by the court responsible for the conviction and sentence, and the Judicial Cooperation Unit of the Ministry of Justices only lawful role is to check that the formal conditions for issue of a European arrest warrant are satisfied, and, if they are, to issue the warrant.
+On the basis, by parallel reasoning to that which I have indicated in relation to Bucnys, I consider that the Ministry can be regarded as a judicial authority issuing a warrant containing a judicial decision, albeit one taken in reality by the responsible court, here the Viru County Court.
+However, Mr Jones points to other information in the form of the Council Evaluation Report on Estonia 5301/07 dated 20 February 2007, which states: 3.1.
+THE DECISION TO ISSUE The Estonian authorities do not have a formal practice guide concerning the instigation of European arrest warrant proceedings or the subsequent steps to be taken.
+Standardised European arrest warrant practices have been outlined to all European arrest warrant stakeholders during training provision supplied by the CA together with professional trainers from the Estonian Law Centre.
+It states that, in the case of accusation warrants, the following factors will be taken into consideration by a review made before any decision to issue a European arrest warrant: severity of the offence, degree of participation, extent of the injury/damage.
+It continues: In cases concerning the enforcement of a sentence, officials within the CA will apply similar merit tests to assess the appropriateness of the application.
+They will then obtain, directly from the criminal court concerned, a copy of the order to be enforced and proceed to draft an European arrest warrant.
+In real terms therefore a pragmatic de minimis test is brought to bear, balancing the seriousness of the criminality against the merits (costs or otherwise) of issuing an European arrest warrant.
+Estonia reported that their outgoing European arrest warrants were all of a benchmarked standard.
+This second hand account of the Estonian system does not bear much relationship with that given by the Ministry of Justice itself in 2012 and 2013.
+It makes no reference to the provisions of article 507 of the Code of Criminal Procedure, or to any role of the court responsible for the conviction, still less to any duty on the part of the Ministry to issue a European arrest warrant, once satisfied that the formal conditions are met.
+Although the report points out earlier that the Ministry of Justice has been designated both as the competent judicial authority and as the central authority in relation to the issue of European arrest conviction warrants, it speaks at this point only of the CA.
+The report was based on a visit by experts to Estonia in September 2006, little over two years after Estonia joined the European Union on 1 May 2004.
+The European arrest warrant system may not have been well digested by that date.
+The Code of Criminal Procedure may have been amended since 2006 it seems clear that article 507(21) 2 and (2) must have been added at some point.
+However, even if, contrary to the Ministrys emphatic explanation, the Judicial Cooperation Unit of the Ministry does enjoy some form of proportionality discretion, when it comes to the exercise of a European arrest warrant requested by a court responsible for a sentence, this is again a factor which can only weigh in favour of the person whose surrender is sought.
+It does not therefore mean, in my opinion, that the Ministry in issuing the European arrest warrant in respect of Lavrov should not be regarded as a judicial authority communicating a judicial decision made by the Viru County Court.
+Conclusions
+The conclusions of principle that I reach are: For the purposes of Council Framework Decision 2002/584/JHA and Part 1 of the Extradition Act 2003: i) A European arrest warrant issued by a Ministry in respect of a convicted person with a view to his or her arrest and extradition can be regarded as issued by a judicial authority for the purposes of Council Framework Decision 2002/584/JHA and Part 1 of the Extradition Act 2003 if the Ministry only 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: a) the court responsible for the sentence; or some other person or body properly regarded as a judicial b) authority responsible for its execution (see para 57 above). ii) If this condition is satisfied, the existence of a discretion on the part of the Ministry not to issue a European arrest warrant which the responsible court (or other judicial authority) has decided appropriate and requested it to issue does not affect this. iii) Subject only to the second point in para 47 above (so far as left open), a Ministry which has power to issue and issues a European arrest warrant of its own motion or at the request of non judicial authority, including an executive agency such as a prison department, cannot be regarded as a judicial authority for the above purposes.
+i) The European arrest warrant issued in respect of Bucnys by the Ministry of Justice of Lithuania at the request of the Vilnius City 1st District Court was a valid Part I warrant under the 2003 Act, and Bucnyss appeal should accordingly be dismissed. ii) The European arrest warrant issued in respect of Sakalis by the same Ministry of Justice at the request of the Prison Department was not a valid Part 1 warrant, and Sakaliss appeal should accordingly be allowed. iii) The European arrest warrant issued in respect of Lavrov by the Ministry of Justice of Estonia at the request of the Viru County Court was a valid Part I warrant, and the Ministry of Justice of Estonias appeal in the case of Lavrov should accordingly be allowed.
+The conclusions I reach on these appeals are that:
diff --git a/UK-Abs/test-data/judgement/uksc-2012-0249.txt b/UK-Abs/test-data/judgement/uksc-2012-0249.txt
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+These proceedings arise out of the deaths of three young men who lost their lives while serving in the British Army in Iraq and the suffering by two other young servicemen of serious injuries.
+The units in which they were serving were sent to Iraq as part of Operation TELIC.
+This operation, which lasted from January 2003 to July 2009, had two distinct phases of military activity.
+The first began on 19 March 2003 when Iraq was invaded by coalition forces including those from the United Kingdom.
+The second phase began on 1 May 2003 when major combat operations ceased and were replaced by a period of military occupation.
+During much of that time there was a constant threat of enemy action by insurgents opposed to the interim Iraqi government.
+On 25 March 2003 Corporal Stephen Allbutt, who was the husband of the claimant Ms Deborah Allbutt, Lance Corporal Daniel Twiddy and Trooper Andrew Julien were serving with the Queens Royal Lancers as part of the Royal Regiment of Fusiliers battle group during the fourth day of the offensive by British troops to take Basra.
+They were in one of a number of Challenger II tanks which had been placed at a dam in hull down positions to minimise their visibility to the enemy.
+Just after midnight a Challenger II tank of the Second Royal Tank Regiment which had been assigned to the 1st Battalion Black Watch battle group and was commanded by Lt Pinkstone crossed over onto the enemy side of a canal to take up a guarding position some distance to the south east of the dam.
+At about 0050 hrs Lt Pinkstone identified two hot spots through his thermal imaging sights which he thought might be personnel moving in and out of a bunker.
+He described the location to Sgt Donlon who was unable to identify the hot spots for himself because the description he was given was incorrect.
+After Lt Pinkstone had identified a further four hot spots in the same area he was given permission to fire by Sgt Donlon.
+Lt Pinkstones tank fired a first round of high explosive shell at about 0120 hrs and a second round shortly afterwards.
+The hot spots that he had observed were in fact men on top of Cpl Albutts Challenger II tank at the dam.
+The first shell landed short of the tank, but the explosion blew off the men who were on top of it including Lance Corporal Twiddy.
+The second shell entered the tank and killed Cpl Allbutt, injured Trooper Julien and caused further injury to Lance Corporal Twiddy.
+It also killed Trooper David Clarke: see R (Gentle and another) v Prime Minister [2008] UKHL 20, [2008] AC 1356, para 1.
+Lt Pinkstone did not know of the presence at the dam of the Royal Regiment of Fusiliers battle group.
+He did not realise that he was firing back across the canal, as he was disorientated and believed that he was firing in a different direction.
+In 2005 Private Phillip Hewett, who was the son of the claimant Susan Smith, was serving with 1st Battalion the Staffordshire Regiment.
+On 10 May 2005 he was deployed to Camp Abu Naji, near the town of Al Amarah in the Maysan Province of Iraq.
+He was assigned to a battle group working alongside soldiers from other battalions.
+In mid July 2005 there was a substantial threat against Camp Abu Naji from rocket attacks and an operation was launched to counter this threat by restricting the movement of insurgent anti Iraqi forces.
+On 15 July 2005 Pte Hewett was assigned to a mobile unit which was sent that evening to patrol around Al Amarah.
+The unit consisted of three Snatch Land Rovers.
+Snatch Land Rovers are lightly armoured.
+Their armour is designed to provide limited protection against ballistic threats, such as those from small arms fire.
+It provided no protection, or no significant protection, against improvised explosive devices (IEDs).
+It was escorted into, but not around, the town by a Warrior fighting vehicle.
+Warriors are heavily armoured and tracked, and are capable of carrying seven or eight personnel as well as the crew.
+Pte Hewett was in the lead Snatch Land Rover as its driver with 2nd Lt Richard Shearer.
+It had no electronic counter measures (ECMs) to protect it against the threat of IEDs.
+At about 0115 hrs on 16 July 2005 an explosion was heard in the vicinity of the stadium in Al Amarah. 2nd Lt Shearer decided to investigate the explosion.
+As the Snatch Land Rovers were driving down the single road to the stadium an IED detonated level with the lead vehicle.
+Pte Hewett, 2nd Lt Shearer and another soldier who was acting as top cover died in the explosion, and two other occupants of the vehicle were seriously injured.
+In 2006 Private Lee Ellis, who was the father of the claimant Courtney Ellis
+and the brother of the claimant Karla Ellis, was serving with the 2nd Battalion the Parachute Regiment.
+His unit was attached to the Royal Scots Dragoon Guards and was based at Camp Abu Naji.
+On 28 February 2006 Pte Ellis was the driver of a Snatch Land Rover in a patrol of three Warriors and two Snatch Land Rovers which made a journey from the Camp to the Iraqi police headquarters in Al Amarah.
+Captain Richard Holmes and another soldier were in the same vehicle.
+On the return journey from the police headquarters an IED was detonated level with the lead Snatch Land Rover driven by Pte Ellis.
+He and Captain Holmes were killed by the explosion and another soldier in the vehicle was injured.
+The vehicle had been fitted with an ECM, but a new part of that equipment known as element A was not fitted to it at that time.
+Element A was fitted to the other Snatch Land Rovers used in the Camp within a few days of the incident.
+The claims
+The claims by Ms Deborah Allbutt, Lance Corporal Daniel Twiddy and Trooper Andrew Julien (the Challenger claims) are brought in negligence at common law only.
+They make two principal claims.
+First, they allege a failure to ensure that the claimants tank and the tanks of the battle group that fired on it were properly equipped with the technology and equipment that would have prevented the incident.
+That equipment falls into two categories: target identity devices that provide automatic confirmation as to whether a vehicle is a friend or foe; and situational awareness equipment that permits tank crews to locate their position and direction of sight accurately.
+Secondly, they allege that the Ministry of Defence (the MOD) was negligent in failing to provide soldiers with adequate recognition training pre deployment and also in theatre.
+The claims by Susan Smith and by Courtney and Karla Ellis (the Snatch Land Rover claims) fall into two parts.
+The first, which is common to all three claimants, is that the MOD breached article 2 of the European Convention on Human Rights by failing to take measures within the scope of its powers which, judged reasonably, it might have been expected to take in the light of the real and immediate risk to life of soldiers who were required to patrol in Snatch Land Rovers.
+The second, which is brought by Courtney Ellis only, is based on negligence at common law.
+The particulars of the Smith claim under article 2 of the Convention are that the MOD (i) failed to provide better/medium armoured vehicles for use by Pte Hewetts commander which, if provided, would have been used for Pte Hewetts patrol, (ii) failed to ensure that any patrol inside Al Amarah was led by a Warrior, (iii) caused or permitted a patrol of three Snatch Land Rovers to proceed inside Al Amarah, especially when there was no ECM on the lead Snatch Land Rover and it knew or ought to have known that ECMs were ineffective against the triggers that were in use by the insurgents and no suitable counter measures had been provided, (iv) permitted the patrol of Snatch Land Rovers to investigate the bomb blast, especially when there was only one road to the decoy bomb site, (v) failed to provide other vehicles for route clearing and route planning ahead of the Snatch Land Rovers, (vi) failed to provide suitable counter measures to IEDs in the light of the death of Lance Corporal Brackenbury, who was killed by an IED while in a Snatch Land Rover on 29 May 2005 and (vii) failed to use means other than patrols to combat the threat posed by the insurgents.
+The particulars of the Ellis claim under article 2 and in negligence are that the MOD failed (i) to limit his patrol to better, medium or heavily armoured vehicles, (ii) to provide any or any sufficient better or armoured vehicle for use by Pte Elliss commander which, had they been provided, would or should have been used for his patrol and (iii) to ensure that Element A had been fitted to the ECM on Pte Elliss Snatch Land Rover, without which it should not have been permitted to leave the Camp.
+The MODs primary case in reply to the Challenger claims and the Ellis claim in negligence is that they should all be struck out on the principle of combat immunity.
+It also pleads that it would not be fair, just or reasonable to impose a duty of care on the MOD in the circumstances of those cases.
+Its case for a strike out in reply to the Snatch Land Rover claims under article 2 of the Convention falls into two parts.
+First, it submits that at the time of their deaths Pte Hewett and Pte Ellis were not within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention.
+Secondly, it submits that on the facts as pleaded the MOD did not owe a duty to them at the time of their deaths under article 2.
+The strike out applications were heard by Owen J, who handed down his judgment on 30 June 2011: [2011] EWHC 1676 (QB), [2011] HRLR 795.
+He struck out the Snatch Land Rover claims under article 2 on the ground that Pte Hewett and Pte Ellis were not within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention when they died: para 48.
+He based this decision on R (Smith) v Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) [2010] UKSC 29, [2011] 1 AC 1.
+He went on nevertheless, in a carefully reasoned judgment, to address the question whether, if the deceased were within the Convention jurisdiction, the MOD was under a substantive article 2 duty of the kind that the Snatch Land Rover claimants were contending for.
+He said that he would not have struck out their claims relating to the supply of equipment: para 80.
+But in his judgment there was no sound basis for extending the scope of the implied positive duty under article 2 to decisions made in the course of military operations by commanders: para 81.
+Holding that the doctrine of combat immunity should be narrowly construed, he refused to strike out the Challenger claims and the second and third of the three Ellis claims in negligence because he was not persuaded that their equipment and pre deployment training claims were bound to fail: paras 110, 111.
+But he struck out the first of the Ellis claims because he was of the opinion that this claim fell squarely within the scope of combat immunity: para 114.
+On 19 October 2012 the Court of Appeal (Lord Neuberger MR, Moses and Rimer LJJ) dismissed appeals by the Snatch Land Rover claimants on the question whether the deceased were within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention: [2012] EWCA Civ 1365, [2013] 2 WLR 27.
+It found it unnecessary to deal with the extent of the substantive obligations implicit within that article.
+It also dismissed the MODs appeal against the judges refusal to strike out the Challenger claims and the second and third of the Ellis claims in negligence on the ground of combat immunity.
+But it allowed a cross appeal by the Ellis claimants against the striking out of the first Ellis claim.
+This was because, although the allegation was of failures of the MOD away from the theatre of war, there might be factual questions as to the circumstances in which the decisions were made which would enable the MOD to raise the defence of combat immunity at the trial: para 63.
+All these issues are now the subject of appeals by the claimants and a cross appeal by the MOD to this court.
+It will be convenient to take first the question whether at the time of their deaths Pte Hewett and Pte Ellis were within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention.
+If they were, I propose to consider next the question whether article 2 imposes positive obligations on the states party to the Convention with a view to preventing the deaths of their own soldiers in active operations against the enemy.
+Finally, there are the claims made at common law where the question is whether the allegations of negligence by the Challenger and Ellis claimants should be struck out because they fall within the scope of combat immunity or because it would not be fair, just or reasonable to impose a duty to take care to protect against such death or injury.
+I. Jurisdiction: article 1 ECHR
+(a) the domestic authorities
+Article 1 of the Convention provides as follows: The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in section 1 of this Convention.
+In Soering v United Kingdom (1989) 11 EHRR 439 at para 86 the Strasbourg court said that article 1 sets a limit, notably territorial, on the reach of the Convention and that the engagement undertaken by a contracting state is confined to securing the listed rights and freedoms to persons within its own jurisdiction.
+It does not govern the actions of states not parties to it, nor does it purport to be a means of requiring the contracting state to impose Convention standards on other states.
+The essentially territorial notion of jurisdiction was also emphasised by the Grand Chamber in Bankovic v Belgium (2001) 11 BHRC 435, para 67, where it said that it is only in exceptional cases that acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of article 1 of the Convention.
+In Andrejeva v Latvia, (Application No 55707/00), given 18 February 2009, para 56, the Grand Chamber reiterated that the concept of jurisdiction for the purposes of article 1 reflects that terms meaning in public international law and that it is closely linked to the international responsibility of the state concerned.
+The question that the Snatch Land Rover claims raise is whether the jurisdiction of the United Kingdom extends to securing the protection of article 2 of the Convention to members of the armed forces when they are serving outside its territory.
+For that to be so it would have to be recognised that service abroad by members of the armed forces is an exceptional circumstance which requires and justifies the exercise by the State of its jurisdiction over them extra territorially.
+In R (Al Skeini) v Secretary of State for Defence [2007] UKHL 26, [2008]
+AC 153 (Al Skeini (HL)) the House of Lords was asked to consider the case of the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra.
+One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied and run by British military personnel.
+It was argued for the civilians that, because of the special circumstances in which British troops were operating in Basra, the conduct complained of, although taking place outside the borders of the United Kingdom and any other contracting state, fell within the exceptions recognised by the Strasbourg jurisprudence.
+The House held that, although one such exception was recognised where a state through effective control of another territory exercised powers normally exercised by the government of that territory, the obligation to secure the Convention rights would arise only where a contracting state had such effective control over an area as to enable it to provide the full package of rights and freedoms guaranteed by article 1 of the Convention to everyone within that area: Lord Rodger of Earlsferry at para 79; Lord Brown of Eaton under Heywood at para 129.
+The United Kingdoms presence in Iraq fell far short of such control.
+As Lord Rodger put it in para 78, the idea that the United Kingdom was obliged to secure the observance of all the rights and freedoms as interpreted by the European court in the utterly different society of southern Iraq was manifestly absurd.
+The Secretary of State accepted that, as the events occurred in a British detention unit, Mr Mousa met his death within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention: Lord Rodger at para 61.
+So far as the other appellants were concerned, the United Kingdom did not have the kind of control of Basra and the surrounding area that would have allowed it to have discharged its obligations, including its positive obligations, as a contracting state under article 2.
+Three aspects of the discussion of the issue in that case should be noted at this stage.
+First, the appellants were all citizens of Iraq.
+They were not state agents of the United Kingdom or otherwise subject to its control or authority.
+British servicemen, on the other hand, are under the complete control of the UK authorities and are subject exclusively to UK law.
+Secondly, the House was plainly much influenced by the ruling on jurisdiction by the Grand Chamber in Bankovic which emphasised the centrality of territorial jurisdiction, the regional nature of the Convention and the indivisibility of the package of rights in the Convention: Lord Rodger at para 69.
+As Lord Brown noted in para 109, Bankovic stood, among other things, for the proposition that the rights and freedoms defined in the Convention could not be divided and tailored.
+In para 75 of Bankovic the proposition which attracted these observations was in these terms: . the Court is of the view that the wording of article 1 does not provide any support for the applicants suggestion that the positive obligation in article 1 to secure the rights and freedoms defined in section 1 of this Convention can be divided and tailored in accordance with the particular circumstances of the extra territorial act in question.
+In para 65 of its judgment in that case the Grand Chamber said that the scope of article 1 was determinative of the very scope of the contracting parties positive obligations and, as such, of the scope and reach of the entire Convention system of human rights protection.
+Thirdly, it was recognised that it was for the Strasbourg court to define the exceptions and evaluate the grounds for departing from the general rule: Lord Bingham of Cornhill at para 29.
+As Lord Brown put it at para 105, the ultimate decision on the question must necessarily be for that court.
+Lord Rodger referred at para 67 to the problem which the House had to face, which was that the judgments and decisions of the European court did not speak with one voice.
+On the one hand there was Issa v Turkey (2004) 41 EHRR 567, where the court said at para 71 that accountability for violation of the Convention rights and freedoms of persons in another state stems from the fact that article 1 of the Convention cannot be interpreted so as to allow a state party to perpetrate violations of the Convention on the territory of the other state which it could not perpetrate on its own territory.
+This appeared to focus on the activity of the contracting state, whereas the emphasis in Bankovic was on the requirement that the victim should be within the jurisdiction.
+In these circumstances the House was of the view that it would not be proper to proceed beyond the jurisprudence of the European court on jurisdiction as analysed and declared by the Grand Chamber in Bankovic.
+The appellants then sought just satisfaction in Strasbourg.
+In the meantime the jurisdiction question was considered by the domestic court in two further cases: R (Gentle) v Prime Minister [2008] AC 1356 and R (Smith) v Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) [2010] UKSC 29, [2011] 1 AC 1 (Catherine Smith).
+The question in Gentle was whether article 2 of the Convention imposed a substantive duty on the state to take timely steps to obtain reliable legal advice before committing its troops to armed conflict: see para 3.
+The claimants were the mothers of two soldiers who were killed while serving in Iraq, one of whom was killed by the same shell as killed Cpl Allbutt and injured Trooper Julien and Lance Corporal Twiddy: see para 3, above.
+The issue which the claimants wished to explore was the lawfulness of the military action on which the United Kingdom had been engaged in Iraq before it was legitimised by United Nations Security Council Resolution 1546 of 8 June 2004.
+Lord Bingham said at para 8(3) that, although the soldiers were subject to the authority of the United Kingdom, they were clearly not within its jurisdiction as that expression in the Convention had been interpreted in Al Skeini (HL), paras 79 and 129.
+But the case was decided on the basis that the claimants were unable to establish the duty which they asserted: see Lord Bingham at para 6.
+In para 39 Lord Rodger said article 2 of the Convention did not impose an obligation on the government not to take part in an invasion that was unlawful in international law: see also Baroness Hale of Richmond, para 57.
+In para 19 I said that the guarantee in the first sentence of that article was not violated simply by deploying servicemen and women on active service overseas as part of an organised military force which was properly equipped and capable of defending itself, even though the risk of their being killed was inherent in what they were being asked to do.
+The issue in Catherine Smith was whether a British soldier in Iraq when outside his base was within the scope of the Convention.
+The appellant was the mother of Private Jason Smith who had been mobilised for service in Iraq as a member of the Territorial Army and was stationed at Camp Abu Naji.
+He collapsed while working off base.
+He was rushed by ambulance to the Camps medical centre but died there almost immediately of heat stroke.
+The issue in the case concentrated on the question whether the inquest into his death had to satisfy the procedural requirements of article 2.
+The Secretary of State conceded that, as Private Smith was on the base when he died, Mrs Smith was entitled to the relief which she sought.
+This meant that the issue had become largely academic, as Lord Phillips recognised in para 2.
+But on this occasion the Court decided to examine the question and express its opinion on it.
+The Court was divided on the issue by six to three.
+The majority held that the contracting states, in concluding the provisions of the Convention, would not have intended it to apply to their armed forces when operating outside their territories.
+Lord Collins, who delivered the leading judgment on behalf of the majority, said in para 307 that the case came within none of the exceptions recognised by the Strasbourg court, and that there was no basis in its case law, or in principle, for the proposition that the jurisdiction which states undoubtedly have over their armed forces abroad both in national law and international law means that they are within their jurisdiction for the purposes of article 1.
+Repeating a point that had been made by Lord Rodger in Al Skeini (HL), he said that, to the extent that Issa v Turkey stated a principle of jurisdiction based solely on authority and control by state agents, it was inconsistent with Bankovic.
+In para 308 he said that there were no policy grounds for extending the scope of the Convention to armed forces abroad, as this would ultimately involve the courts in issues relating to the conduct of armed hostilities which was essentially non justiciable.
+The leading judgment for the minority was delivered by Lord Mance, with whom Lady Hale and Lord Kerr agreed.
+It is not possible to do justice to it in a brief summary.
+But some points that are of particular importance should be noted.
+In para 188 he said that, to the extent that jurisdiction under the Convention exists over occupied territory, it does so only because of the occupying states pre existing authority and control over its own armed forces.
+An occupying state cannot have any jurisdiction over local inhabitants without already having jurisdiction over its own armed forces, in both cases in the sense of article 1 of the Convention.
+In para 194 he said that the United Kingdoms jurisdiction over its armed forces was essentially personal.
+It could not be expected to take steps to provide in Iraq the full social and protective framework and facilities which it would be expected to provide domestically.
+But the United Kingdom could be expected to take steps to provide proper facilities and proper protection against risks falling within its responsibility or its ability to control or influence when despatching and deploying armed forces overseas.
+In paras 195 197 he examined the question whether there would be consequences beyond or outside any that the framers of the Convention could have contemplated and concluded that none of the matters that might give cause for concern justified giving to the concept of jurisdiction a different or more limited meaning to that which in his opinion followed from the guidance that the Strasbourg court had already given in Bankovic.
+It is however worth noting that he did not attach the same importance as the majority did to the proposition in Bankovic that the rights and freedoms defined in the Convention could not be divided and tailored, and that he was inclined to give more weight than they were to a principle of jurisdiction based on the authority and control which the contracting state had over its armed forces.
+(b) Al Skeini in Strasbourg
+The structure of the relevant part of the Grand Chambers judgment, at (2011) 53 EHRR 589, falls into two parts.
+First, there is a comprehensive statement of general principles relevant to the issue of jurisdiction under article 1 of the Convention.
+Secondly, those principles are applied to the facts of the case.
+Although the facts of that case are different from those which are before this Court in these appeals, both parts of the judgment provide important guidance as to how we should resolve the issue with which we have to deal.
+The statement of general principles begins in para 130 with the observation that the exercise of jurisdiction, which is a threshold condition, is a necessary condition for a contracting state to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention.
+The significance of this observation in the context of these appeals is that it is not disputed that the United Kingdom has authority and control over its armed forces when serving abroad.
+It has just as much authority and control over them anywhere as it has when they are serving within the territory of the United Kingdom.
+They are subject to UK military law without any territorial limit: Armed Forces Act 2006, section 367(1).
+The extent of the day to day control will, of course, vary from time to time when the forces are deployed in active service overseas, especially when troops are in face to face combat with the enemy.
+But the legal and administrative structure of the control is, necessarily, non territorial in character.
+are set out: In paras 131 132 the general principles relevant to the territorial principle 131 A states jurisdictional competence under article 1 is primarily territorial.
+Jurisdiction is presumed to be exercised normally throughout the states territory.
+Conversely, acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction within the meaning of article 1 only in exceptional cases. 132 To date, the Court in its case law has recognised a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a contracting state outside its own territorial boundaries.
+In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the state was exercising jurisdiction extra territorially must be determined with reference to the particular facts.
+One can take from these paragraphs two important points.
+First, the word exceptional is there not to set an especially high threshold for circumstances to cross before they can justify a finding that the state was exercising jurisdiction extra territorially.
+It is there to make it clear that, for this purpose, the normal presumption that applies throughout the states territory does not apply.
+Secondly, the words to date in para 132 indicate that the list of circumstances which may require and justify a finding that the state was exercising jurisdiction extra territorially is not closed.
+In Catherine Smith, para 303 Lord Collins said that Bankovic made it clear in paras 64 and 65 that article 1 was not to be interpreted as a living instrument in accordance with changing conditions.
+That can no longer be regarded as an entirely accurate statement.
+The general principles are derived from the application to particular facts of the requirement of jurisdictional competence.
+The particular facts to which those principles must now be applied may be the product of circumstances that were not foreseen by the framers of the Convention.
+But that is no reason to disregard them if they can be shown to fall within the general principles relevant to jurisdiction under article 1.
+The Grand Chamber in Al Skeini then set out to divide the general principles relevant to jurisdiction into three distinct categories: state agent authority and control; effective control over an area; and the Convention legal space.
+We are not concerned in the case of the Snatch Land Rover claims with a situation where, as a consequence of military action, the United Kingdom was in effective control of an area outside its territory.
+Its presence in Iraq in 2005 and 2006 was to provide security and help with the reconstruction effort in that country pursuant to a request by the Iraqi government.
+The local administration was in the hands of the Iraqi government.
+Nor are we concerned with the risk of a vacuum in the Convention legal space.
+The category relevant to this case is that of state agent authority and control, which is described in paras 133 to 137.
+This category is introduced by para 133, which is in these terms: The Court has recognised in its case law that, as an exception to the principle of territoriality, a contracting states jurisdiction under article 1 may extend to acts of its authorities which produce effects outside its own territory: see Drozd and Janousek v France and Spain (1992) EHRR 745, para 91; Loizidou v Turkey (1995) 20 EHRR 99 (preliminary objections), para 62; Loizidou v Turkey (1997) 23 EHRR 513 (merits), para 52; Bankovic v Belgium (2004) 44 EHRR SE75, para 69.
+The statement of principle, as it appears in Drozd and the other cases just cited, is very broad: the Court states merely that the contracting partys responsibility can be involved in these circumstances.
+It is necessary to examine the Courts case law to identify the defining principles.
+There then follow three paragraphs in which the principles are defined by reference to the Courts case law.
+The first principle is set out in para 134.
+It refers to the acts of diplomatic and consular agents, who are present on foreign territory in accordance with provisions of international law.
+This may amount to an exercise of jurisdiction when these agents exert authority and control over others.
+The cases cited are X v Federal Republic of Germany (1965) 8 Yearbook of the European Convention on Human Rights 158; X v United Kingdom (1977) 12 DR 73; M v Denmark (1992) 73 DR 193; and Bankovic, para 73, where the Court noted that other recognised instances of the extra territorial exercise of jurisdiction by a state include cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that state.
+In these specific situations, customary international law and treaty provisions have recognised the extra territorial exercise of jurisdiction by the relevant state.
+The second principle is set out in para 135.
+It refers to the fact that the Court has recognised the exercise of extra territorial jurisdiction by a contracting state when, through the consent, invitation or acquiescence of the government of that territory, it exercises all or some of the public powers normally to be exercised by that government: Bankovic, para 71.
+So, where in accordance with custom, treaty or other agreement, authorities of the contracting state carry out executive or judicial functions on the territory of another state, the contracting state may be responsible for breaches of the Convention that result from their exercise, so long as the acts in question are attributable to it rather than to the state in whose territory the acts take place.
+The cases cited are Drozd and Janousek v France and Spain (1992) 14 EHRR 745; Gentilhomme v France (Application Nos 48205, 48207 and 48209), given 14 May 2002; and X and Y v Switzerland (1977) 9 DR 57.
+The third principle is set out in para 136.
+It refers to the fact that the Courts case law demonstrates that in certain circumstances the use of force by a states agents operating outside its territory may bring the individual thereby brought under control of the states authorities into the states article 1 jurisdiction.
+Four examples are given of the application of this principle to cases where an individual was taken into the custody of state agents abroad: calan v Turkey (2005) 41 EHRR 985, where an individual was handed over to Turkish officials outside the territory of Turkey by officials from Kenya; Issa v Turkey (2004) 41 EHRR 567, where the Court indicated in paras 74 77 that if it had been established that Turkish soldiers had taken the shepherds into custody in a nearby cave in Northern Iraq and executed them, the deceased would have been within Turkish jurisdiction by virtue of the soldiers authority and control over them; Al Saadoon v United Kingdom (2009) 49 EHRR SE95 where the Court held that two Iraqi nationals detained in a British controlled prison in Iraq fell within the jurisdiction of the United Kingdom as the United Kingdom exercised total control over the prison and the individuals detained in them; and Medvedyev v France (2010) 51 EHRR 899, where crew members of a Cambodian registered merchant ship suspected of drug smuggling were taken into custody and detained on a French frigate while it was taken to France.
+A more recent example of the application of the same principle is to be found in Jamaa v Italy (2012) 55 EHRR 627, where the applicant asylum seekers were detained on an Italian ship after their vessels had been intercepted by the Italian Revenue Police and Coastguard.
+The following words are set out at the end of para 136 which sum up the essence of the general principle: The Court does not consider that jurisdiction in the above cases arose solely from the control exercised by the contracting state over the buildings, aircraft or ship in which the individuals were held.
+What is decisive in such cases is the exercise of physical power and control over the person in question.
+The description of the category of state agent authority and control concludes with an important statement in para 137.
+It is in these terms: It is clear that, whenever the state through its agents exercises control and authority over an individual, and thus jurisdiction, the state is under an obligation under article 1 to secure to that individual the rights and freedoms under section 1 of the Convention that are relevant to the situation of that individual.
+In this sense, therefore, the Convention rights can be divided and tailored .
+I do not read the first sentence of this paragraph as adding a further example to those already listed in paras 134 136.
+No further cases are cited in support of it, which the Court would have been careful to do if that were the case.
+The point that the Grand Chamber was making in para 137, as is made clear by the last sentence, is that the package of rights in the Convention is not indivisible, as Bankovic, para 75, which is cited here, appeared to indicate.
+The Grand Chamber had stated in that paragraph of its judgment in Bankovic that it was of the view that the wording of article 1 did not provide any support for the applicants suggestion that the positive obligation in article 1 to secure the rights and freedoms defined in section 1 of this Convention can be divided and tailored in accordance with the particular circumstances of the extra territorial act in question.
+The effect of para 137 of the Al Skeini judgment is that this proposition, which informed much of the thinking of the House of Lords in Al Skeini (HL) and of the majority in Catherine Smith, that the rights in Section 1 of the Convention are indivisible, is no longer to be regarded as good law.
+The extra territorial obligation of the contracting state is to ensure the observance of the rights and freedoms that are relevant to the individual who is under its agents authority and control, and it does not need to be more than that.
+The dividing and tailoring concept relative to the situation of the individual was applied in the Hirsi Jamaa case to resolve the issue whether the asylum seekers were subject to the jurisdiction of Italy while they were detained on the ship flying the Italian flag: 55 EHRR 627, para 74.
+The second part of the judgment of the Grand Chamber applies the principles described in the first part to the facts of the case.
+The state of affairs in Iraq during the period when the applicants deaths at the hands of British forces occurred is reviewed in paras 143 to 148.
+They were killed on various dates between May and September 2003.
+This was during a period when the United States and the United Kingdom were exercising the powers of government for the provisional administration of Iraq through a Coalition Provisional Authority, which had been created for the purpose in May 2003.
+They included the maintenance of civil law and order.
+That remained the position until 28 June 2004, when full authority for governing Iraq passed from the Coalition Provisional Authority to the Interim Iraqi Government.
+In the light of these facts the Court held in para 149 that the United Kingdom, through its soldiers engaged in security operations in Basra during the period in question, exercised authority and control over individuals killed in the course of such security operations.
+This established a jurisdictional link between the deceased and the United Kingdom for the purposes of article 1 of the Convention.
+The Court does not say which of the general principles led it to this conclusion, but it is reasonably clear that the facts come closest to those referred to in para 135.
+The United Kingdom was not exercising public powers through the consent, invitation or acquiescence of the government of Iraq as during the relevant period no such government was in existence.
+But it was exercising powers normally to be exercised by that government had it existed.
+The case thus fell within the general principle of state authority and control.
+It should be noted, however, that the situation in Iraq had changed by the time the incidents that have given rise to the Snatch Land Rover claims occurred.
+These incidents took place on 16 July 2005 and 28 February 2006.
+By that stage the occupation of Iraq had come to an end and the Coalition Provisional Authority had ceased to exist.
+Full authority for governing the country had passed to the Interim Iraqi Government.
+The United Kingdom was no longer exercising the public powers normally to be exercised by that countrys government.
+(c) discussion
+The question whether at the time of their deaths Pte Hewett and Pte Ellis were within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention does not receive a direct answer from the Grand Chamber in its Al Skeini judgment.
+This is not surprising, as that was not the question it had to decide.
+As it made clear in para 132, the question whether the state was exercising jurisdiction extra territorially in any given case must be determined with reference to the particular facts of that case.
+But the insertion of the words to date at the beginning of that paragraph indicate that one should not be too troubled by the fact that no case has yet come before the Strasbourg court which required it to consider whether the jurisdiction which states undoubtedly have over their armed forces abroad in both national and international law means that they are within their jurisdiction for the purposes of article 1 of the Convention.
+Care must, of course, be exercised by a national court in its interpretation of an instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court: R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, para 20 per Lord Bingham.
+He had already acknowledged in Brown v Stott [2003] 1 AC 681 that, as an important constitutional instrument, the Convention was to be seen as a living tree capable of growth and expansion within its natural limits (Edwards v Attorney General for Canada [1930] AC 124 at p 136 per Lord Sankey LC).
+But he said that those limits will often call for very careful consideration.
+As he put it at the end of para 20 in Ullah, the duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time.
+Lord Binghams point was that Parliament never intended by enacting the Human Rights Act 1998 to give the courts of this country the power to give a more generous scope to the Convention rights than that which was to be found in the jurisprudence of the Strasbourg court.
+To do so would have the effect of changing them from Convention rights, based on the treaty obligation, into free standing rights of the courts own creation.
+In Al Skeini (HL), paras 105 106, Lord Brown of Eaton under Heywood saw a greater danger in the national court construing the Convention too generously in favour of an applicant than in construing it too narrowly.
+The question before us here, however, is not one as to the scope that should be given to the Convention rights, as to which our jurisprudence is still evolving.
+It is a question about the states jurisdictional competence under article 1.
+In this context, as the question of jurisdiction is so fundamental to the extent of the obligations that must be assumed to have been undertaken by the contracting states, the need for care is all the greater.
+In Catherine Smith, para 93, I endorsed the view expressed by Lord Brown in Al Skeini (HL), para 107 that article 1 should not be construed as reaching any further than the existing Strasbourg jurisprudence clearly shows it to reach.
+I would take that as being for us, as a national court, the guiding principle.
+It seems to me that three elements can be extracted from the Grand Chambers Al Skeini judgment which point clearly to the conclusion that the view that was taken by the majority in Catherine Smith that the states armed forces abroad are not within its jurisdiction for the purposes of article 1 can no longer be maintained.
+The first is to be found in its formulation of the general principle of jurisdiction with respect to state agent authority and control.
+The whole structure of the judgment is designed to identify general principles with reference to which the national courts may exercise their own judgment as to whether or not, in a case whose facts are not identical to those which have already been held by Strasbourg to justify such a finding, the state was exercising jurisdiction within the meaning of article 1 extra territorially.
+While the first sentence of para 137 does not add a further example of the application of the principle to those already listed in paras 134 136, it does indicate the extent to which the principle relating to state agent authority and control is to be regarded as one of general application.
+The words whenever the state through its agents exercises control and authority over an individual, and thus jurisdiction, can be taken to be a summary of the exceptional circumstances in which, under this category, the state can be held to be exercising its jurisdiction extra territorially.
+As I said in para 30, above, the word exceptional does not set an especially high threshold for circumstances to cross before they can justify such a finding.
+It is there simply to make it clear that, for this purpose, the normal presumption that applies throughout the states territory does not apply.
+Lord Collinss comment in Catherine Smith, para 305, that other bases of jurisdiction are exceptional and require special justification should be understood in that sense.
+The second is to be found in the way, albeit with a degree of reticence, that this formulation resolves the inconsistency between Issa v Turkey and Bankovic on the question whether the test to be applied in these exceptional cases can be satisfied by looking only at authority and control or is still essentially territorial.
+The problem that was created by this inconsistency was articulated most clearly by Lord Rodger in Al Skeini (HL), paras 71 75.
+How can one reconcile the decision in Bankovic, which showed that an act which would engage the Convention if committed on the territory of a contracting state does not ipso facto engage the Convention if carried out by that contracting state on the territory of another state outside the Council of Europe, with the test that was described in Issa that required the court to ascertain whether the deceased were under the authority and control of the respondent state? We now know that Issa cannot be dismissed as an aberration because, as Lord Collins said in Catherine Smith, para 307, it is inconsistent with Bankovic.
+It is Bankovic which can no longer be regarded as authoritative on this point.
+The fact that Issa is included in para 136 as one of the examples of cases that fall within the general principle of state agent authority and control is particularly noteworthy.
+It anchors that case firmly in the mainstream of the Strasbourg courts jurisprudence on this topic.
+The third is to be found in the way that the Grand Chamber has departed from the indication in Bankovic that the package of rights in the Convention is indivisible and cannot be divided and tailored to the particular circumstances of the extra territorial act in question.
+It was always going to be difficult to see how, if that was to be the guiding principle, it could be possible to accept that a states armed forces abroad in whatever circumstances were within their jurisdiction for the purposes of article 1 as its ability to guarantee the entire range of the Convention rights would in many cases be severely limited.
+The problem was solved in the case of the actions of Turkish soldiers in northern Cyprus because the Convention rights were also engaged by the acts of the local administration which survived by virtue of Turkish military and other support: Cyprus v Turkey (Application No 25781/94), given 10 May 2001, para 77.
+Other cases were likely to be more difficult, and Lord Collins recognised in Catherine Smith, para 302 that cases such as Markovic v Italy (2006) 44 EHRR 1045 suggested that some qualification would have to be made to the principle of indivisibility of Convention rights.
+The Grand Chamber has now taken matters a step further.
+The concept of dividing and tailoring goes hand in hand with the principle that extra territorial jurisdiction can exist whenever a state through its agents exercises authority and control over an individual.
+The court need not now concern itself with the question whether the state is in a position to guarantee Convention rights to that individual other than those it is said to have breached: see Jamaa v Italy 55 EHRR 627.
+There is one other point arising from the Grand Chambers Al Skeini judgment that should not pass unnoticed.
+The Equality and Human Rights Commission points out in para 49 of its written case that the anterior question that presents itself in state agent cases is whether the state agent himself is within his states jurisdiction within the meaning of article 1.
+As Lord Mance observed in Catherine Smith, para 188, to the extent that a states extra territorial jurisdiction over local inhabitants exists because of the authority and control that is exercised over them, this is because of the authority and control that the state has over its own armed forces.
+It would seem to follow therefore that an occupying state cannot have any jurisdiction over local inhabitants without already having jurisdiction over its own armed forces, in each case in the sense of article 1 of the Convention.
+That this is so has never been questioned by the Strasbourg court, and it may be said that it is the premise from which extra territorial jurisdiction based on state agent authority and control has been developed.
+In Cyprus v Turkey (1975) 2 DR 125, which appears to have been the first case in which the concept of state agent authority and control was mentioned (see Al Skeini, para 121), the European Commission of Human Rights observed at p 136, para 8, that authorised agents of a state, including diplomatic or consular agents and armed forces, not only remain under its jurisdiction when abroad but bring other persons or property within the jurisdiction of that state, to the extent that they exercise authority over such person or property.
+In so far as, by their acts or omissions, they affect such persons or property, the responsibility of the state is engaged.
+The same formulation is to be found in the Commissions decisions in W v Ireland (1983) 32 DR 211, 215 and Vearncombe v Germany and United Kingdom (1989) 59 DR 186, 194.
+It no longer appears in references by the Strasbourg court to the acts of diplomatic and consular agents present on foreign territory in accordance with provisions of international law: see X and Y v Switzerland 9 DR 57, para 2; Bankovic, para 73; Al Skeini, para 134.
+But it has never been disapproved.
+It was quoted without comment or criticism in Chrysostomos v Turkey (1991) 34 Yearbook of the European Convention on Human Rights 35, para 32.
+The Grand Chamber in Al Skeini was referred by the applicants to the same passage in the Cyprus judgment: see para 121.
+The quotation from it in that paragraph includes the proposition that authorised agents of a state remain under its jurisdiction when abroad.
+The Grand Chamber had the opportunity to say that there was something wrong with it, but it did not do so.
+The Cyprus case was referred to by Lord Phillips in Catherine Smith, paras 49 50.
+He did not attach any significance to it, as it seemed to him that the reasoning of the Commission was far wider than that of the Court when it dealt with Turkeys jurisdiction in Northern Cyprus in Loizidou v Turkey (1995) 20 EHRR 99.
+It receives a passing mention also by Lord Collins in para 249 in the course of a brief review of the cases on acts of diplomatic and consular officials abroad.
+As matters now stand, given the guidance that has now been given in Al Skeini, it deserves more attention.
+The logic which lies behind it, as explained by Lord Mance in Catherine Smith, para 188, is compelling.
+It is plain, especially when one thinks of the way the armed forces operate, that authority and control is exercised by the state throughout the chain of command from the very top all the way down to men and women operating in the front line.
+Servicemen and women relinquish almost total control over their lives to the state.
+It does not seem possible to separate them, in their capacity as state agents, from those whom they affect when they are exercising authority and control on the states behalf.
+They are all brought within the states article 1 jurisdiction by the application of the same general principle.
+In Demir and Baykara v Turkey (Application No 34503/97), given 12 November 2008, para 74, the Grand Chamber said that in a number of judgments it had used, for the purposes of interpreting the Convention, intrinsically non binding instruments of Council of Europe organs, in particular recommendations and resolutions of the Committee of Ministers and the Parliamentary Assembly.
+These resolutions and recommendations constitute agreements within the meaning of article 31(3)(a) of the Vienna Convention, account of which may be taken in the interpretation of a treaty or the application of its provisions.
+It is therefore worth noting recommendation 1742 (2006) of the Parliamentary Assembly on the human rights of members of the armed forces of 11 April 2006, which was made in the light of a debate on a report on this issue of its Committee on Legal Affairs and Human Rights (doc 10861).
+In para 2 of recommendation 1742 the point was made that members of the armed forces are citizens in uniform who must enjoy the same fundamental freedoms and the same protection of their rights and dignity as any other citizen, within the limits imposed by the specific exigencies of military duties.
+In para 3 it was emphasised that members of the armed forces cannot be expected to respect humanitarian law and human rights in their operations unless respect for human rights is guaranteed within the army ranks.
+The Parliamentary Assembly recommended that the Committee of Ministers should prepare and adopt guidelines in the form of a new recommendation to member states designed to guarantee respect for human rights by and within the armed forces.
+A draft recommendation prepared by a steering committee was adopted by the Committee of Ministers on 24 February 2010 with an explanatory memorandum (CM/Rec (2010) 4) in which it was stated that member states should, so far as possible, apply the principles set out in the recommendation to their armed forces in all circumstances, including in time of armed conflict.
+The conclusion which I would draw from the jurisprudence of the Strasbourg court derives further support from these non binding recommendations.
+For these reasons I would hold that the decision in Catherine Smith should be departed from as it is inconsistent with the guidance that the Grand Chamber has now given in its Al Skeini judgment.
+I would also hold that the jurisdiction of the United Kingdom under article 1 of the Convention extends to securing the protection of article 2 to members of the armed forces when they are serving outside its territory and that at the time of their deaths Pte Hewett and Pte Ellis were within the jurisdiction of the United Kingdom for the purposes of that article.
+To do so would not be inconsistent with the general principles of international law, as no other state is claiming jurisdiction over them.
+The extent of that protection, and in particular whether the MOD was under a substantive duty of the kind for which the Snatch Land Rover claimants contend, is the question which must now be considered.
+The article 2 ECHR claims
+Article 2(1) of the Convention provides as follows: Everyones right to life shall be protected by law.
+No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
+The relevant guarantee for the purposes of this case is set out in the first sentence.
+It has two aspects: one substantive, the other procedural.
+We are not concerned here with the procedural obligation which is implied into the article in order to make sure that the substantive right is effective in practice: see R (Gentle) v Prime Minister [2008] AC 1356, para 5, per Lord Bingham.
+The Snatch Land Rover claims, details of which are set out in paras 11 and 12, above, are all directed to the substantive obligation, which requires the state not to take life without justification and also, by implication, to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life: R (Middleton) v West Somerset Coroner [2004] UKHL 10, [2004] 2 AC 182, para 2.
+As Owen J pointed out, these claims involve issues of procurement as well as allegations relating to operational decisions made by commanders: [2011] EWHC 1676 (QB), para 51.
+(a) preliminary observations
+Lord Collins said in Catherine Smith, para 308 that to extend the scope of the Convention to armed forces abroad would ultimately involve the courts in issues relating to the conduct of armed hostilities which are essentially non justiciable.
+That some issues relating to the conduct of armed hostilities are non justiciable is not really in doubt.
+But in my opinion a finding that in all circumstances deaths or injuries in combat that result from the conduct of operations by the armed forces are outside the scope of article 2 would not be sustainable.
+It would amount, in effect, to a derogation from the states substantive obligations under that article.
+Such a fundamental departure from the broad reach of the Convention should not be undertaken without clear guidance from Strasbourg as to whether, and in what circumstances, this would be appropriate.
+It may be noted in this context that the intervener JUSTICE drew attention to article 15 of the Convention in reply to concerns about the practical consequences of finding that soldiers are within the jurisdiction of the United Kingdom under article 1.
+It provides that in time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under the Convention to the extent required by the exigencies of the situation.
+But the phrase threatening the life of the nation suggests that the power to derogate under this article is available only in an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the state is composed: Lawless v Ireland (No 3) (1961) 1 EHRR 15, para 28.
+It will be recalled that in A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68 it was held that the Human Rights Act 1998 (Designed Derogation) Order 2001, which had been made to derogate from the right to personal liberty under article 5(1) to enable the appellants to be detained indefinitely without trial, should be quashed.
+And in R (Al Jedda) v Secretary of State for Defence (JUSTICE intervening) [2007] UKHL 58, [2008] AC 332, para 38, Lord Bingham said that it was hard to think that the conditions of article 15 could ever be met when a state had chosen to conduct an overseas peacekeeping operation, however dangerous the conditions, from which it could withdraw.
+He also noted that it had not been the practice of states to derogate in situations such as those in Iraq in 2004 and that as subsequent practice in the application of a treaty may, under article 31(3)(b) of the Vienna Convention, be taken into account in interpreting the treaty it seemed proper to regard the power in article 15 as inapplicable.
+I do not think therefore that it would be right to assume that concern about the practical consequences in situations such as those with which we are dealing in this case can be answered by exercising the power to derogate.
+The circumstances in which that power can properly be exercised are far removed from those where operations are undertaken overseas with a view to eliminating or controlling threats to the nations security.
+The jurisprudence of the Strasbourg court shows that there are other ways in which such concerns may be met.
+The Strasbourg court has repeatedly emphasised that, when it comes to an assessment of the positive obligations that are to be inferred from the application in any given case of the Convention rights, a fair balance must be struck between the competing interests of the individual and of the community as a whole.
+It has also recognised that there will usually be a wide margin of appreciation if the state is required to strike a balance between private and public interests and Convention rights: Hristozov v Bulgaria (Application Nos 47039/11 and 358/12), given 13 November 2012, paras 118, 124.
+That was a case about a refusal to authorise an experimental medicinal product which the applicants had wished to be administered to them.
+But the competition between the interests of the state and those of the individual is no less acute where issues arise about the risk to life of soldiers in the context of military operations conducted on the states behalf.
+The challenge this court faces when dealing with the Snatch Land Rover claims is to determine where the boundary lies between the two extremes in the circumstances that the armed forces were facing in Iraq in 2005 and 2006.
+In Gentle, para 19, I said that the proper functioning of an army in a modern democracy includes requiring those who serve in it to undertake the operations for which they have been recruited, trained and equipped, some of which are inherently dangerous, and that the jurisprudence developed from the decision in Soering v United Kingdom (1989) 11 EHRR 439 about decisions taken in this country to send people abroad to places where they face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment does not apply.
+The guarantee in the first sentence of article 2(1) is not violated simply by deploying servicemen and women on active service overseas as part of an organised military force which is properly equipped and capable of defending itself, even though the risk of their being killed is inherent in what they are being asked to do.
+The other side of the coin, as Lord Mance explained in Catherine Smith, para 195, is that there is nothing that makes the Convention impossible or inappropriate of application to the relationship between the state and its armed forces as it exists in relation to overseas operations in matters such as, for example, the adequacy of equipment, planning or training.
+Lord Rodger recognised in the same case at para 126 that, while a coroner will usually have no basis for considering at the outset that there has been a violation of article 2 where a serviceman or woman has been killed by opposing forces in the course of military operations, new information might be uncovered as the investigation proceeds which does point to a possible violation of the article.
+He referred to the death of a soldier as a result of friendly fire from other British forces as an extreme example.
+And, as I said in Catherine Smith, para 105, one must not overlook the fact that there have been many cases where the death of service personnel indicates a systemic or operational failure on the part of the state, ranging from a failure to provide them with the equipment that was needed to protect life on the one hand to mistakes in the way they are deployed due to bad planning or inadequate appreciation of the risks that had to be faced on the other.
+So failures of that kind ought not to be immune from scrutiny in pursuance of the procedural obligation under article 2 of the Convention.
+The extent to which the application of the substantive obligation under article 2 to military operations may be held to be impossible or inappropriate will, however, vary according to the context.
+Military operations conducted in the face of the enemy are inherently unpredictable.
+There is a fundamental difference between manoeuvres conducted under controlled conditions in the training area which can be accurately planned for, and what happens when troops are deployed on active service in situations over which they do not have complete control.
+As Lord Rodger observed in Catherine Smith, para 122, the job of members of the armed forces involves their being deployed in situations where, as they well know, opposing forces will be making a determined effort, and using all their resources, to kill and injure them.
+The best laid plan rarely survives initial contact with the enemy.
+The best intelligence cannot predict with complete accuracy how the enemy will behave, or what equipment will be needed to meet the tactics and devices that he may use to achieve his own ends.
+Speed may be essential if the momentum of an attack is to be maintained or to strengthen a line of defence.
+But lines of communication may become stretched.
+Situations may develop where it is simply not possible to provide troops in time with all they need to conduct operations with the minimum of casualties.
+Things tend to look and feel very different on the battlefield from the way they look on such charts and images as those behind the lines may have available to them.
+A court should be very slow indeed to question operational decisions made on the ground by commanders, whatever their rank or level of seniority.
+Then there is the issue of procurement.
+In A v Secretary of State for the Home Department [2005] 2 AC 68, para 29, Lord Bingham said that the more purely political (in a broad or narrow sense) the question is, the more appropriate it would be for political resolution, and the less likely it is to be an appropriate matter for judicial decision.
+The allocation of resources to the armed services and as between the different branches of the services, is also a question which is more appropriate for political resolution than it is by a court.
+Much of the equipment in use by the armed forces today is the product of advanced technology, is extremely sophisticated and comes at a very high price.
+Procurement depends ultimately on the allocation of resources.
+This may in turn be influenced as much by political judgment as by the judgment of senior commanders in Whitehall as to what they need for the operations they are asked to carry out.
+It does not follow from the fact that decisions about procurement are taken remote from the battlefield that they will always be appropriate for review by the courts.
+This, then, is a field of human activity which the law should enter into with great caution.
+Various international measures, such as those contained in the 3rd Geneva Convention of 1929 to protect prisoners of war, have been entered into to avoid unnecessary hardship to non combatants.
+But subjecting the operations of the military while on active service to the close scrutiny that may be practicable and appropriate in the interests of safety in the barrack block or in the training area is an entirely different matter.
+It risks undermining the ability of a state to defend itself, or its interests, at home or abroad.
+The world is a dangerous place, and states cannot disable themselves from meeting its challenges.
+Ultimately democracy itself may be at risk.
+(b) the Strasbourg authorities
+Fundamentally, article 2 requires a state to have in place a structure of laws which will help to protect life: Savage v South Essex NHS Trust [2008] UKHL 74, [2009] AC 681, para 19, per Lord Rodger.
+As he explained, with reference to the European courts discussion of this issue in Osman v United Kingdom (1998) 29 EHRR 245, para 115, the primary duty is to secure the right to life by putting in place effective criminal law offences backed up by law enforcement machinery.
+But the states duty goes further than that.
+It may also imply, in certain well defined circumstances, a positive obligation on the authorities to take preventive operational measures to protect the lives of those within their jurisdiction.
+In para 88 of its judgment in Keenan v United Kingdom (2001) 33 EHRR 913, the court began by reciting the high level of duty of the state to put in place effective criminal law sanctions to deter the commission of offences against prisoners.
+But that was just part of what Lord Rodger described in para 30 of Savage as the tralatician jurisprudence of the court on positive obligations under article 2.
+The positive duties on the state operate at various levels, as one idea is handed down to another.
+There is a lower level, but still general, duty on a state to take appropriate measures to secure the health and well being of prisoners or people who are in some form of detention.
+This in its turn gives rise, at a still lower level, to two general obligations: Savage, para 36; Rabone v Pennine Care NHS Trust (INQUEST and others intervening) [2012] UKSC 2, para 12, per Lord Dyson; neryildiz v Turkey (2004) 41 EHRR 325, para 89.
+The first is a systemic duty, to put in place a legislative and administrative framework which will make for the effective prevention of the risk to their health and well being or, as it was put in neryildiz, para 89, effective deterrence against threats to the right to life.
+Depending on the facts, this duty could extend to issues about training and the procurement of equipment before the forces are deployed on operations that will bring them into contact with the enemy.
+The second, which is also directly in point in this case, is to ensure that, where there is a real and immediate risk to life, preventative operational measures of whatever kind are adopted to safeguard the lives of those involved so far as this is practicable.
+The Strasbourg court has not had occasion to examine the extent to which article 2(1) offers protection at any level to a states armed forces when engaged in operations such as those that were being conducted in Iraq in 2005 and 2006.
+But there are some straws in the wind which may offer some guidance.
+In Engel v The Netherlands (No 1) (1976) 1 EHHR 647, para 54, in a well
+known passage, the Court said that, when interpreting and applying the rules of the Convention, the court must bear in mind the particular characteristics of military life and its effect on the situation of individual members of the armed forces.
+That was a case about the preservation of military discipline, as were en v Turkey (Application No 45824/99), given 8 July 2003) and Grigoriades v Greece (1997) 27 EHHR 464, where it was observed at p 8 that the extent of the protection given to members of the armed forces must take account of the characteristics of military life, the nature of the activities they are required to perform and of the risk that they give rise to.
+These comments, however brief, do seem to make it clear that it would not be compatible with the characteristics of military life to expect the same standard of protection as would be afforded by article 2(1) to civilians who had not undertaken the obligations and risks associated with life in the military.
+That is plainly so in the context of the exercise of military discipline over members of the armed forces when they are on active service.
+It is hard to see why servicemen and women should not, as a general rule, be given the same protection against the risk of death or injury by the provision of appropriate training and equipment as members of the police, fire and other emergency services.
+But it is different when the serviceman or woman moves from recruitment and training to operations on active service, whether at home or overseas.
+It is here that the national interest requires that the law should accord the widest measure of appreciation to commanders on the ground who have the responsibility of planning for and conducting operations there.
+This approach receives some support from Stoyanovi v Bulgaria (Application No 42980/04), given 9 November 2010, where an application was made under article 2(1) by the family of a soldier who had died during a parachute exercise.
+In paras 59 61 the Court examined the difference between the primary positive obligation under that article to establish a framework of laws and procedures to protect life and the obligation to take preventative operational measures to protect the life of an individual which may be imposed by implication, as it was put in Osman v United Kingdom (1998) 29 EHRR 245, para 115, only in certain and well defined circumstances.
+In para 59, recalling what was said in para 116 of Osman where the allegation was of a failure to take preventive measures where there was a known risk of a real, direct and immediate threat to the life of an individual posed by another individual, the Court said: Subject to considerations as to the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities and which also conforms with the other rights guaranteed by the Convention.
+In para 61 it observed that positive obligations will vary in their application depending on the context.
+Having noted that the case concerned an accident during a military training exercise and that parachute training was inherently dangerous but an ordinary part of military duties, it said: Whenever a state undertakes or organises dangerous activities, or authorises them, it must ensure through a system of rules and through sufficient control that the risk is reduced to a reasonable minimum.
+If nevertheless damage arises, it will only amount to a breach of the states positive obligations if it was due to insufficient regulations or insufficient control, but not if the damage was caused through the negligent conduct of an individual or the concatenation of unfortunate events.
+That was a case where the state was in control of the situation, as the accident occurred during a training exercise.
+It was not claimed that any specific risk to the life of the deceased should have been foreseen in advance, nor was it argued that the legislative and administrative framework was defective in any general or systemic sense: paras 62 63.
+The whole focus of the courts supervision was on the authorities response to the accident.
+It was not suggested that there could not have been a breach of the general or systemic duties in such a case.
+There is, however, a sharp contrast between that situation and operations undertaken in a situation where it was known or could reasonably have been anticipated that troops were at risk of attacks from insurgents by unconventional means such as by the planting of IEDs.
+Regulation and control of the kind contemplated in Stoyanovi is likely to be very difficult, if not impossible, to achieve on the ground in situations of that kind.
+Even where those directing operations are remote in place and time from the area in which the troops are operating, great care is needed to avoid imposing a burden on them which is impossible or disproportionate.
+Another example of the Strasbourg courts concern not to impose a disproportionate and unrealistic obligation on the state is provided by Giuliani and Gaggio v Italy (Application No 23458/02), given 24 March 2011.
+The applicants in that case complained of the death of their son and brother during demonstrations surrounding the G8 summit in Genoa which had degenerated into violence.
+The Court held that the Italian authorities did not fail in their obligation to do what could reasonably be expected of them to provide the level of safeguards required during operations potentially involving the use of lethal force.
+It drew a contrast between dealing with a precise and identifiable target and the maintenance of order in the face of possible disturbances spread over the entire city as regards the extent to which the officers involved could be expected to be highly specialised in dealing with the tasks assigned to them.
+So too, in the case of the armed forces, a contrast can be drawn between their situation in the training area that can be planned for precisely and that which they are likely to encounter during operations when in contact with the enemy.
+The same approach is indicated by Finogenov v Russia (Application Nos 18299/03 and 27311/03), given 20 December 2011, para 213, where the Court was prepared to give a margin of appreciation to the domestic authorities, in so far as the military and technical aspects of the situation were concerned, in connection with the storming of a theatre in which many people were held hostage by terrorists, even if with hindsight some of the decisions they took might appear open to doubt.
+The guidance which I would draw from the Courts jurisprudence in this area is that the court must avoid imposing positive obligations on the state in connection with the planning for and conduct of military operations in situations of armed conflict which are unrealistic or disproportionate.
+But it must give effect to those obligations where it would be reasonable to expect the individual to be afforded the protection of the article.
+It will be easy to find that allegations are beyond the reach of article 2 if the decisions that were or ought to have been taken about training, procurement or the conduct of operations were at a high level of command and closely linked to the exercise of political judgment and issues of policy.
+So too if they relate to things done or not done when those who might be thought to be responsible for avoiding the risk of death or injury to others were actively engaged in direct contact with the enemy.
+But finding whether there is room for claims to be brought in the middle ground, so that the wide margin of appreciation which must be given to the authorities or to those actively engaged in armed conflict is fully recognised without depriving the article of content, is much more difficult.
+No hard and fast rules can be laid down.
+It will require the exercise of judgment.
+This can only be done in the light of the facts of each case. (c) should the claims be struck out?
+The circumstances of the Snatch Land Rover cases are not precisely analogous to those of any previous case in which the implied positive obligation under article 2 has been imposed, and the allegations made in each of the claimants particulars of claim (see paras 11 and 12, above) are not identical.
+This is because the explosion in which Pte Hewett was killed occurred more than six months before that which killed Pte Ellis.
+The claim in Pte Elliss case concentrates on the provision of what is said, in the light of experience, to have been inadequate equipment and a failure to limit his patrol to vehicles which offered better protection or had been fitted with element A. The claims in Pte Hewetts case are less precise and range more widely.
+But they too extend to criticism of operational decisions taken by those in charge of the patrols as well as to alleged failures in the provision of appropriate vehicles and equipment in the light of the death of L Cpl Brackenbury in similar circumstances seven weeks previously.
+I am conscious, however, of the fact that these particulars are no more than the briefest outline of the case that the claimants seek to make.
+Account should also be taken of the fact that the claims were issued in January 2008, in the case of Pte Hewett, and in February 2009, in the case of Pte Ellis.
+In both cases this was before the judgment was delivered in Stoyanovi v Bulgaria.
+The European Court has now provided greater clarity as to the approach that should be taken to claims of this kind, as has the discussion about the distinct elements that are to be found in the positive duty to protect life that is to be found in Savage and Rabone.
+Some of the failures which the claimants allege appear to be of the systemic kind (see para 68, above).
+Others are of the operational kind that was described in the Osman case, where there was an implied positive obligation to take preventative operational measures to protect those who were at risk of a real, direct and immediate threat to life.
+Measures of that kind could extend to procurement decisions taken on the ground about the provision of vehicles and equipment, as well as to decisions about their deployment.
+How precisely the allegations fit into the structure of the duties implied by the article cannot be determined without knowing more about the facts, bearing in mind that it must be interpreted in a way which does not impose an unrealistic or disproportionate burden on the authorities.
+The overall aim of the courts procedure must be to achieve fairness, and I think that it would be unfair to the relatives of the deceased to apply too exacting a standard at this stage to the way the claims have been pleaded.
+The circumstances in which the various decisions were made need to be inquired into before it can be determined with complete confidence whether or not there was a breach of the implied positive obligation.
+The details which are needed to place those circumstances into their proper context will only emerge if evidence is permitted to be led in support of them.
+This seems to me to be a classic case where the decision on liability should be deferred until after trial.
+I agree with Owen J that the procurement issues may give rise to questions that are essentially political in nature but that it is not possible to decide whether this is the case without hearing evidence.
+He said that there was no sound basis for the allegations that relate to operational decisions made by commanders, and for this reason took a different view as to whether they were within the reach of article 2.
+But it seems to me that these allegations cannot easily be divorced from the allegations about procurement, and that here too the question as to which side of the line they lie is more appropriate for determination after hearing evidence.
+Much will depend on where, when and by whom the operational decisions were taken and the choices that were open to them, given the rules and other instructions as to the use of equipment under which at each level of command they were required to operate.
+I would therefore dismiss the MODs appeal against Owen Js decision,
+which the Court of Appeal found it unnecessary to consider, that none of these claims should be struck out.
+The claimants are, however, on notice that the trial judge will be expected to follow the guidance set out in this judgment as to the very wide measure of discretion which must be accorded to those who were responsible on the ground for the planning and conduct of the operations during which these soldiers lost their lives and also to the way issues as to procurement too should be approached.
+It is far from clear that they will be able to show that the implied positive obligation under article 2(1) of the Convention to take preventative operational measures was breached in either case. III.
+Combat immunity
+(a) background
+The Challenger claims proceed on the basis that there is no common law liability for negligence in respect of acts or omissions on the part of those who are actually engaged in armed combat.
+So it has not been suggested that Lt Pinkstone or anyone else in the Black Watch battle group was negligent.
+Nor, as his decision to fire was taken during combat, would it have been appropriate to do so.
+The Challenger claimants concentrate instead on an alleged failure to ensure that the claimants tank and the tanks of the battle group that fired on it were properly equipped with technology and equipment that would have prevented the incident, and an alleged failure to ensure that soldiers were provided with adequate recognition training before they were deployed and also in theatre.
+Their case is founded entirely on failings in training and procurement.
+The Ellis claim at common law also raises issues about procurement.
+The MOD invokes in reply the doctrine of combat immunity, which it says should be given a sufficiently broad scope to cover all acts or omissions that are alleged to have caused death or injury in the course of combat operations.
+It is plain that the effect of the doctrine, if it applies, would be to remove the issue of liability for negligence from the jurisdiction of the court altogether.
+But the MOD also submits that, if the court does have jurisdiction, it would not be fair, just or reasonable to impose a duty of care on it to protect the soldiers in such circumstances against death or injury.
+The justification for these arguments is the same, whichever of the two formulations is adopted.
+It is that the interests of the state must prevail over the interests of the individual.
+As Mr Eadie QC for the MOD put it, the fair, just and reasonable test chimes with the doctrine of combat immunity.
+His appeal against the Court of Appeals decision that the negligence claims should not be struck out was directed primarily to that doctrine.
+This may be considered to be an application to given facts of the test as to what is fair, just and reasonable.
+But the structure of the law is important and combat immunity is best thought of as a rule, because once a case falls within it no further thought is needed to determine the question whether a duty of care was owed to the claimant.
+The scope of this rule deserves attention as a separate issue in its own right.
+(b) the authorities
+Combat immunity made its first appearance in Shaw Savill & Albion Co Ltd v Commonwealth (1940) 66 CLR 344.
+A collision had occurred between HMAS Adelaide and a civilian vessel, the MV Coptic.
+It took place on 3 December 1940 while the civilian vessel was on a voyage from Brisbane to Sydney.
+The owners of the civilian vessel claimed that the collision had been caused by negligence on the part of the naval authorities and sought damages.
+The High Court was adjudicating on the plaintiffs demurrer to the defence and a strike out summons by the Commonwealth.
+The defence was that, while in the course of actual operations against the enemy, the forces of the Crown are under no duty of care to avoid loss or damage to private individuals.
+Both applications were dismissed and the case proceeded to trial.
+The Commonwealth was ultimately found liable on the ground of the captains fault in his navigation of the Adelaide: see Attorney General (New South Wales) v Perpetual Trustee Co Ltd (1952) 85 CLR 237, 252 per Dixon CJ.
+Dixon J, with whom Rich ACJ and McTiernan J agreed, said in the demurrer proceedings at p 361 that it could hardly be maintained that during an actual engagement with the enemy the navigating officer of a ship of war was under a common law duty to avoid harm to such non combatant ships as might appear in the theatre of operations: To concede that any civil liability can rest upon a member of the armed forces for supposedly negligent acts or omissions in the course of an actual engagement with the enemy is opposed alike to reason and to policy.
+But the principle cannot be limited to the presence of the enemy or to occasions when contact with the enemy has been established.
+Warfare perhaps never did admit of such a distinction, but now it would be quite absurd.
+The development of the speed of ships and the range of guns were enough to show it to be an impracticable refinement, but it has been put out of question by the bomber, the submarine and the floating mine.
+The principle must extend to all active operations against the enemy.
+At p 362 he acknowledged that it might not be easy under conditions of modern warfare to say in a given case upon which side of the line an act or omission falls.
+But the uniform tendency of the law had been to concede to the armed forces complete legal freedom in the field, that is to say in the course of active operations against the enemy, so that the application of private law by the ordinary courts may end where the active use of arms begins.
+Starke J said at pp 355 356 that acts done in the course of operations of war are not justiciable and that this had been decided by Ex P D F Marais [1902] AC 109, where the Judicial Committee of the Privy Council applied the test of whether actual war was raging at the time of the incident.
+In Groves v Commonwealth (1982) 150 CLR 113, para 3 Gibbs CJ said that he had no difficulty in accepting the correctness of what was said by Dixon J: To hold that there is no civil liability for injury caused by negligence of persons in the course of an actual engagement with the enemy seems to me to accord with common sense and sound policy.
+In Mulcahy v Ministry of Defence [1996] QB 732 Neill LJ said at p 746 that it seemed to have been recognised in the Australian cases that warlike activities fell into a special category.
+He concluded at p 748 that an English court should approach a claim of negligence by a soldier who was injured while a gun of whose team he was a member was fired into Iraq during the first Iraq war in the same way as in the High Court of Australia did in the Shaw Savill case.
+At pp 749 750 he examined what the position would have been, in the absence of the Australian cases, as to whether it would have been fair, just or reasonable to impose a duty of care on one soldier in his conduct to another when engaging the enemy during hostilities.
+Echoing the words of Gibbs CJ in Groves, he reached the same conclusion, as there was no duty on the defendants in battle conditions to maintain a safe system of work.
+Sir Iain Glidewell said at p 751 that at common law one soldier does not owe a duty of care to another member of the armed forces when engaging the enemy in the course of hostilities.
+In his judgment in this case, at para 93, Owen J referred to his judgment in
+Multiple Claimants v The Ministry of Defence [2003] EWHC 1134 (QB) in which he drew from the cases the proposition that the immunity is not limited to the presence of the enemy or the occasions when contact with the enemy has been established.
+It extends to all active operations against the enemy in which service personnel are exposed to attack or the threat of attack, including the planning and preparation for the operations in which the armed forces may come under attack or meet armed resistance.
+He qualified the latter part of this proposition by saying that the extension of the immunity to the planning of and preparation for military operations applied to the planning of and preparation for the operations in which injury was sustained, and not to the planning and preparation in general for possible unidentified further operations.
+(c) discussion: combat immunity
+There is not much by way of close reasoning in Shaw Savill and Groves, apart from assertions that where combat immunity applies the doctrine is justified by reason and policy.
+But the doctrine itself, as explained in Mulcahy, is not in doubt.
+The question is as to the extent of the immunity.
+With great respect, I doubt the soundness of the extension of it that in the Multiple Claimants case Owen J drew from the very few cases on this topic.
+They included Burmah Oil Co Ltd v Lord Advocate [1965] AC 75, where the House held that the destruction of oil installations to avoid their falling into the hands of the enemy did not fall into the category of damage done during the course of battle.
+That was a very unusual case, which does not really bear on the issue we have to decide.
+It seems to me that the extension of the immunity to the planning of and preparation for the operations in which injury was sustained that the judge seems to have favoured is too loosely expressed.
+It could include steps taken far away in place and time from those operations themselves, to which the application of the doctrine as a particular application of what is just, fair and reasonable would be at the very least questionable.
+Such an extension would also go beyond the situations to which the immunity has so far been applied.
+In Bici v Ministry of Defence [2004] EWHC 786 (QB), para 90, Elias J noted that combat immunity was exceptionally a defence to the government, and to individuals too, who take action in the course of actual or imminent armed conflict and cause damage to property or death or injury to fellow soldiers or civilians.
+It was an exception to the principle that was established in Entick v Carrington (1765) 19 State Tr 1029 that the executive cannot simply rely on the interests of the state as a justification for the commission of wrongs.
+In his opinion the scope of the immunity should be construed narrowly.
+That approach seems to me to be amply justified by the authorities.
+The Challenger claims are about alleged failures in training, including pre deployment and in theatre training, and the provision of technology and equipment.
+They are directed to things that the claimants say should have been done long before the soldiers crossed the start line at the commencement of hostilities.
+The equipment referred to consists of target identity devices to provide automatic confirmation as to whether a vehicle is a friend or a foe, and situation awareness equipment that would permit tank crews to locate their position and direction of sight accurately.
+The claim is that, if the Challenger II tanks that were involved in this incident had been provided with this equipment before they went into action, the claimants tank would not have been fired on.
+The training referred to is described as recognition training.
+It is said that this should have been provided pre deployment and in theatre.
+Here too the essence of the claim is that these steps should have been taken before the commencement of hostilities.
+The claimants are careful to avoid any criticism of the actions of the men who were actually engaged in armed combat at the time of the incident.
+The question which these claims raise is whether the doctrine of combat immunity should be extended from actual or imminent armed conflict to failures at that earlier stage.
+I would answer it by adopting Elias Js point, with which Owen J agreed in para 99 of his judgment in this case, that the doctrine should be narrowly construed.
+To apply the doctrine of combat immunity to these claims would involve an extension of that doctrine beyond the cases to which it has previously been applied.
+That in itself suggests that it should not be permitted.
+I can find nothing in these cases to suggest that the doctrine extends that far.
+In the Shaw Savill case the argument for the Commonwealth at the demurrer stage was that at the time of the collision the warship was engaged in active naval operations against the enemy, that those operations were urgently required and necessary for the safety of the realm and that the national emergency called for the taking of the measures that the warship adopted.
+Both vessels were said to have been proceeding without any navigation or other lights, in pursuance of instructions from the Australian naval authorities which had been authorised to give them as part of the Crowns function of waging war by sea and protecting vessels from enemy action.
+It was not said where the enemy were, or what exactly the warship was doing when the collision occurred.
+But the phrase active naval operations against the enemy makes the point that it was assumed that it occurred during, and not before, the vessels engagement in those operations.
+The fact that the Commonwealth was ultimately found liable at trial suggests that the judge found that at the material time the warship was not, after all, engaged in actual operations against the enemy.
+The accident in Mulcahys case occurred while the gun was being fired into Iraq during, and not before, the actual engagement with the enemy.
+Then there is the point that, as was noted in Jones v Kaney [2011] UKSC 13, [2011] 2 AC 398, paras 108 and 161, any extension of an immunity needs to be justified.
+It has to be shown to be necessary.
+Starke J observed in the Shaw Savill case at p 354 that not every warlike operation done in time of war is an operation or an act of war.
+It is to operations or acts of war only that the doctrine extends, on the ground that the armed forces must be free to conduct such operations without the control or interference of the courts of law.
+As Dixon J said in the same case at p 361, no one can imagine a court undertaking the trial of an issue as to whether a soldier on the field of battle or a sailor fighting on his ship might reasonably be more careful to avoid causing civil loss or damage.
+The principle, as he described it, is not limited to acts or omissions in the course of an actual engagement with the enemy.
+It extends to all active operations against the enemy.
+While in the course of actually operating against the enemy, the armed forces are under no duty of care to avoid causing loss or damage to those who may be affected by what they do.
+But, as Dixon J also said at p 362, there is a real distinction between actual operations against the enemy and other activities of the combatant services in time of war.
+He referred by way of example to a warship proceeding to her anchorage or manoeuvring among other ships in a harbour.
+At that stage no reason was apparent for treating her officers as under no civil duty of care, remembering always that the standard of care is that which is reasonable in the circumstances.
+The same point can be made about the time when the failures are alleged to have taken place in the Challenger claimants case.
+At the stage when men are being trained, whether pre deployment or in theatre, or decisions are being made about the fitting of equipment to tanks or other fighting vehicles, there is time to think things through, to plan and to exercise judgment.
+These activities are sufficiently far removed from the pressures and risks of active operations against the enemy for it to not to be unreasonable to expect a duty of care to be exercised, so long as the standard of care that is imposed has regard to the nature of these activities and to their circumstances.
+For this reason I would hold that the Challenger claims are not within the scope of the doctrine, that they should not be struck out on this ground and that the MOD should not be permitted, in the case of these claims, to maintain this argument.
+The Ellis common law claim relates to a different phase of the United Kingdoms engagement in Iraq, but it was a phase during which there was a constant threat of enemy action by insurgents which was liable to cause death or injury.
+These claims are less obviously directed to things done away from the theatre in which Pte Ellis was engaged at the time of his death: see para 12, above.
+Their wording suggests that at least some of the failures alleged may have been due to decisions taken by local commanders during active operations on the ground.
+If that was the situation, it may be open to argument that these claims are within the doctrine.
+As Moses LJ recognised in the Court of Appeal, para 63, factual issues of that kind must be left for determination at the trial.
+The information that would be needed for a decision either way is lacking at this stage.
+As in the case of their claims under article 2 of the Convention, the details that are needed to place the claims in context will only emerge if evidence is permitted to be led in support of them.
+So I would hold that it would be premature for these claims to be struck out on the ground of combat immunity.
+I would leave this issue open to further argument in the light of the evidence.
+(d) discussion: fair, just and reasonable
+Mr Eadie QC also renewed the argument that was advanced below that the common law claims should be struck out on the ground that it would not be fair, just and reasonable to impose a duty of care at common law to protect against such death or injury as occurred in these cases.
+He referred, for example, to Van Colle v Chief Constable of Hertfordshire Police [2008] UKHL 50, [2009] AC 225, Brooks v Comr of Police of the Metropolis [2005] UKHL 24, [2005] 1 WLR 1495 and Stovin v Wise [1996] AC 923 in support of this part of his argument.
+In Brooks, para 30 Lord Steyn affirmed what he described as the core principle in Hill v Chief Constable of West Yorkshire [1989] AC 53, where it was held on grounds of public policy that the police did not owe legal duties to victims or witnesses in the performance of their function in keeping the Queens peace: see also Elguzouli Daf v Commissioner of Police of the Metropolis [1995] QB 335, where Lord Steyn held, also on grounds of public policy, that the Crown Prosecution Service did not owe a duty of care to those whom it was prosecuting; and Hughes v National Union of Mineworkers [1991] ICR 669, where May J held that it would be detrimental to the public interest if police officers charged with deploying of other officers in times of serious public disorder were to have to concern themselves with possible negligence claims from their subordinates.
+These can all be seen as cases where, for reasons of public policy, it was not fair, just or reasonable for the defendant to be under a duty of care to avoid injury.
+The closest the cases have come to applying that reasoning to cases involving members of the armed forces is Mulcahy v Ministry of Defence [1996] QB 732, where Neill LJ said at p 750 that there was no duty on the defendants in battle conditions to maintain a safe system of work and Sir Iain Glidewell said at p 751 that one soldier does not owe to another a duty of care when engaged in battle conditions.
+As in the other cases, the question whether a duty should be held not to exist depends on the circumstances on who the potential claimants are and when, where and how they are affected by the defendants acts.
+The circumstances in which active operations are undertaken by our armed services today vary greatly from theatre to theatre and from operation to operation.
+They cannot all be grouped under a single umbrella as if they were all open to the same risk, which must of course be avoided, of judicialising warfare.
+For these reasons, I think that the question whether the claims in this case fall within the exclusion that was recognised in Mulcahy or any extension of it that can be justified on grounds of public policy cannot properly be determined without hearing evidence.
+In Van Colle, para 58 Lord Bingham said that one would ordinarily be surprised if conduct which violated a fundamental right or freedom of the individual under the Convention did not find a reflection in a body of law as sensitive to human needs as the common law.
+So Lord Rodgers observation in Catherine Smith, para 126 that there would be reason to believe that the military authorities may have failed in their article 2 duty if a soldier dies as a result of friendly fire from other British forces is capable of being read across as indicating that the question in the case of the Challenger claims is not whether a duty was owed but whether, on the facts, it was breached.
+Whether the situation in Iraq at the time of the incidents that gave rise to the Ellis claims was comparable to battle conditions when a nation is at war is a matter that also needs to be investigated.
+It needs to be emphasised, however, that the considerations mentioned in paras 64 66 and 76 81, above in the context of the claims made under article 2 of the Convention are just as relevant in the context of the common law claims.
+Close attention must be paid to the time when the alleged failures are said to have taken place, and to the circumstances in which and the persons by whom the decisions that gave rise to them were taken.
+It will be easier to find that the duty of care has been breached where the failure can be attributed to decisions about training or equipment that were taken before deployment, when there was time to assess the risks to life that had to be planned for, than it will be where they are attributable to what was taking place in theatre.
+The more constrained he is by decisions that have already been taken for reasons of policy at a high level of command beforehand or by the effects of contact with the enemy, the more difficult it will be to find that the decision taker in theatre was at fault.
+Great care needs to be taken not to subject those responsible for decisions at any level that affect what takes place on the battlefield, or in operations of the kind that were being conducted in Iraq after the end of hostilities, to duties that are unrealistic or excessively burdensome.
+The sad fact is that, while members of the armed forces on active service can be given some measure of protection against death and injury, the nature of the job they do means that this can never be complete.
+They deserve our respect because they are willing to face these risks in the national interest, and the law will always attach importance to the protection of life and physical safety.
+But it is of paramount importance that the work that the armed services do in the national interest should not be impeded by having to prepare for or conduct active operations against the enemy under the threat of litigation if things should go wrong.
+The court must be especially careful, in their case, to have regard to the public interest, to the unpredictable nature of armed conflict and to the inevitable risks that it gives rise to when it is striking the balance as to what is fair, just and reasonable.
+Conclusion
+For these reasons I would allow the Snatch Land Rover claimants appeal against the decision of the Court of Appeal that the soldiers in these cases were not within the United Kingdoms jurisdiction for the purposes of article 2 of the Convention at the time of their deaths.
+I would, however, dismiss the MODs application that the Snatch Land Rover claims should be struck out on the ground that the claims are not within the scope of that article.
+I would dismiss the MODs application that the Challenger claims should be struck out on the ground of combat immunity and on the ground that it would not be fair, just or reasonable to extend the duty of care to those cases.
+I would also dismiss the MODs cross appeal against the decision of the Court of Appeal to dismiss its application to strike out the Ellis claim based on negligence.
+LORD MANCE (with whom Lord Wilson agrees)
+Introduction
+This first issue is whether soldiers in the British army are within the jurisdiction of the United Kingdom when serving both on and off base in Iraq for the purposes of article 1 of the European Convention on Human Rights.
+On this issue, I am in complete agreement with Lord Hope.
+I have nothing to add to what he says in his paragraphs 17 55.
+On this basis, this case raises once again for consideration the difficult line or inter relationship between national law and substantive Convention rights, to which I referred in Rabone v Pennine Care NHS Trust [2012] UKSC 2; [2012] 2 AC 72, para 121.
+It is in general terms clear from Strasbourg jurisprudence that article 2 of the Human Rights Convention includes substantive duties on the part of the state, namely (a) a systems or framework duty, viz to establish a framework which is appropriately protective of life and (b) an operational duty, viz in appropriate circumstances, a positive duty to take preventive operational measures to protect an individual whose life is at risk: Watts v United Kingdom (2010) 51 EHRR SE66, para 82.
+Although the operational duty was said in Osman v United Kingdom (1998) 29 EHRR 245 to apply in certain well defined circumstances, the subsequent recognition of its application in new sets of circumstances (including by this Court in Rabone) leaves its scope uncertain.
+As Lady Hale notes in Rabone, para 97 99, it is conceivable that the Strasbourg jurisprudence accepts or is moving towards a broad principle that engages article 2 and requires the state to react reasonably in any situation where the state knows or ought to know of a real and immediate threat to human life.
+It is also unclear how far the two substantive duties are separated, with middle ground between them, or form part of a continuum covering almost every aspect of state activity.
+In neryildiz v Turkey (2005) 41 EHRR 325, paras 89 90 the Strasbourg court treated the framework duty as indisputably apply[ing] in the particular context of dangerous activities, where special emphasis must be placed on regulations geared to the special features of the activity in question, adding that They must govern the licensing, setting up, operation, security and supervision of the activity and must make it compulsory for all concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks.
+On the other hand, there are some circumstances in which death occurs as a result of the activities of state agents, but article 2 is not engaged.
+They include casual errors of judgment or acts of negligence (which I described in R (Catherine Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29; [2011] 1 AC 1, para 201, as operational as opposed to systematic failures), a principle established in the context of medical negligence.
+The present appeal concerns the operation and application of the principles of common law negligence and of article 2 in a factual context which is very largely uncharted by previous authority.
+The right approach is I believe to take first the common law position.
+A primary aspect of the framework duty on states is to have a legislative and administrative framework appropriately protective of life: neryildiz, para 89, quoted in Rabone, para 12.
+So article 2 naturally directs attention first to the question whether domestic law provides such a framework, including the recourse to compensation for non pecuniary damages which the Strasbourg court has indicated should in principle be available as part of the range of redress where a state is held responsible for a death: Z v United Kingdom (2001) 34 EHRR 97, para 109.
+The claims
+I gratefully adopt Lord Hopes summary of the various claims in paras 9 to 12 of his judgment.
+Some preliminary observations may be made.
+First, although the Challenger claims are based only on allegations of lack of technology, equipment and/or training, the Particulars of Claim alone show that the factual circumstances of these sad deaths would require examination and that failings on the ground of those with command over the firing tank are in fact held directly responsible for such deaths.
+In particular, it is alleged that Major McDuff under whose command the firing tank fell was told of the presence of the tanks subsequently fired upon and had such tanks visually identified to him, that he was shown, but refused to accept, the boundaries of responsibility marked on a map which had been given to such tanks and that he failed to communicate any of this information to anyone, with the result that, some 12 hours later, the firing tank wrongly identified the tanks fired on as enemy.
+Second, the particulars relied upon in Mrs Smiths claim under article 2 include both decisions or omissions on the ground and equipment and tactical decisions at a higher level.
+Third, the particulars relied upon in the Ellis claims in negligence and/or under article 2 relate mainly at least to equipment and tactical decisions at a higher level (although they also embrace allegations as to what equipment should have been used if available).
+As pleaded, the complaint regarding the decision to deploy Snatch Land Rovers on the patrol might be read as a complaint about a decision made on the ground.
+But their case (para 188) explains that it relates to a decision made well away from the heat of battle at a time when the decision maker was neither under attack nor threat of attack.
+It did not form part of the planning of this particular patrol.
+Common law
+The questions arising are (i) the existence and scope of any common law responsibility on the part of the state towards its soldiers, in particular in respect of deaths in active service and (ii) the nature and scope of any common law doctrine of combat immunity.
+The claimants starting point is that the state owes to its soldiers a general duty to take appropriate measures to secure their safety, like that owed by any other employer, and that it must also answer vicariously for any breach of duty by one soldier killing or injuring another.
+It is only therefore by virtue of some exceptional immunity that the state can escape liability for breach of any such duty, and the only principle giving any such immunity is a limited principle of combat immunity.
+That the Crown is in tort generally in the same position as any employer follows from s.2 of the Crown Proceedings Act 1947, providing Liability of the Crown in tort. (1) Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject: (a) in respect of torts committed by its servants or agents; (b) in respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer; and (c) in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property: Provided that no proceedings shall lie against the Crown by virtue of paragraph (a) of this subsection in respect of any act or omission of a servant or agent of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or agent or his estate.
+However, there is authority that where actual war is raging acts done by the military authorities are not justiciable by the ordinary tribunals: Ex p Marais [1902] AC 109, 114.
+That was a case of alleged wrongful detention where the Privy Council declared that the principle applied where martial law had been declared, even though the military commander had allowed ordinary courts, before which the claimant might have been brought, to continue in operation.
+In Burmah Oil Co Ltd v Lord Advocate [1965] AC 75, Lord Reid recognised (at p 110) an exception (to the Crowns liability to pay compensation for property seized or destroyed) in relation to battle damage consisting of accidental or deliberate damage done in the course of fighting operations.
+In Shaw Savill & Albion Co Ltd v Commonwealth (1940) 66 CLR 344, Ex p Marais was cited by Starke and Williams JJ, but all the members of the High Court also assimilated the question of justiciability with the question whether the state owed a legal duty to take care in the particular circumstances.
+Starke J stated that it is for the court to determine whether a state of war exists and whether the matters complained of were done or omitted in the conduct of an operation or act of war.
+He added (consistently with Ex p Marais) that the immunity arising from conduct of war cannot be confined to the theatre of operations where combatants are actively engaged: it must extend, in modern times, to all theatres in which action on the part of the Kings enemies is imminent.
+In terms of the modern law of tort, the right analysis is, I consider, that combat immunity is not so much an entirely separate principle as the result of a general conclusion that it is not fair, just or reasonable to regard the Crown or its officers, soldiers or agents as under a duty of care to avoid injury or death in their acts or omissions in the conduct of an active military operation or act of war.
+That is how the matter was seen in Mulcahy v Ministry of Defence [1996] QB 732.
+The Court of Appeal there, rightly in my view, followed the approach in Shaw Savill in holding that a gun commander firing live rounds into Iraq during the first Gulf War in 1991 owed the claimant, a serving soldier in the same team, no duty of care for breach of which the Ministry could be held vicariously liable.
+It held equally that the Ministry itself owed the claimant no duty to maintain a safe system of work.
+Among the points considered in Mulcahy was whether the repeal of the immunity in tort formerly provided by section 10 of the Crown Proceedings Act 1947, subject to the right (never yet utilised) to revive section 10 for all or limited purposes under s.2 of the Crown Proceedings (Armed Forces) Act 1987 bore on the existence or scope of any doctrine of combat immunity.
+Neill LJ held it did not, because it was still necessary to consider the common law position.
+I agree.
+In Bici v Ministry of Defence [2004] EWHC 786 (QB), concerning the killing of two civilians by British soldiers during the course of peace keeping operations in Kosovo, Elias J treated separately the doctrine of combat immunity and the question whether there existed a duty of care, viewing the former as an exclusion of justiciability and so as a doctrine to be strictly confined on constitutional grounds.
+But on that basis it was still necessary to consider whether any duty of care existed.
+Elias J held it did, because the case involved the single question whether the soldiers were justified in firing on the civilians, and there was no basis for concluding that they did not owe a duty of care in doing so: Troops he said (para 104) frequently have to carry out difficult and sensitive peace keeping functions, such as in Northern Ireland, whilst still being subject to common law duties of care.
+The difficulties of their task are reflected in the standard of the duty rather than by denying its applicability.
+As Lord Hope has noted, the cases on combat immunity are focused on acts or omissions occurring and causing injury or death in the course of hostilities.
+In the present case the Challenger claimants are careful to put their case in a way which relies solely on allegedly negligent conduct occurring prior to and distant from the actual hostilities, and involving failures, in Whitehall or elsewhere, properly to equip and train the soldiers sent to fight in Iraq.
+The same applies, at least for the most part, to the Ellis claims.
+The question is whether the state, or indeed those of its officers responsible for procurement and training decisions, owe any duty of care in respect of injury or death in the course of combat operations allegedly attributable to their negligence in the performance of such responsibility.
+This is a question of public policy about the answer to which Lord Rodger (at para 127), with whom Lord Walker expressly agreed (at para 131), can, I think, have had no doubt in R (Catherine Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29, [2011] 1 AC 1.
+Although they were addressing explicitly the position under article 2, they cannot have thought that their remarks were or could be made irrelevant simply be reformulating a claim in negligence.
+It is not difficult to identify situations in which the common law has concluded on policy grounds that no duty of care should exist.
+I agree with all that Lord Carnwath has said in this connection in paras 161 to 175 of his judgment.
+In Hill v Chief Constable of West Yorkshire [1989] AC 53, the House held that the police had owed no enforceable duty of care with respect to the last victim of the Yorkshire Ripper, properly to investigate the crimes committed by the Yorkshire Ripper before the murder of, and so to save the life of, the last victim.
+Lord Keith said, at p 63: From time to time they [the police] make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it.
+In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind.
+The possibility of this happening in relation to the investigative operations of the police cannot be excluded.
+Further it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes.
+While some such actions might involve allegations of a simple and straightforward type of failure for example that a police officer negligently tripped and fell while pursuing a burglar others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do.
+The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources.
+Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so.
+A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial.
+The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime.
+Closed investigations would require to be reopened and retraversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted.
+In Brooks v Comr of Police of the Metropolis [2005] 1 WLR 1495, the House applied similar reasoning when holding that the police have no duty of care not to cause by positive acts or omissions harm to victims of serious crime, or witnesses to serious crime, with whom they have contact.
+Lord Steyn said (para 30): It is, of course, desirable that police officers should treat victims and witnesses properly and with respect: compare the Police (Conduct) Regulations 2004 (SI 2004/645).
+But to convert that ethical value into general legal duties of care on the police towards victims and witnesses would be going too far.
+The prime function of the police is the preservation of the Queen's peace.
+The police must concentrate on preventing the commission of crime; protecting life and property; and apprehending criminals and preserving evidence: .
+A retreat from the principle in Hill's case would have detrimental effects for law enforcement.
+Whilst focusing on investigating crime, and the arrest of suspects, police officers would in practice be required to ensure that in every contact with a potential witness or a potential victim time and resources were deployed to avoid the risk of causing harm or offence.
+Such legal duties would tend to inhibit a robust approach in assessing a person as a possible suspect, witness or victim.
+By placing general duties of care on the police to victims and witnesses the police's ability to perform their public functions in the interests of the community, fearlessly and with despatch, would be impeded.
+It would, as was recognised in Hill's case, be bound to lead to an unduly defensive approach in combating crime.
+Van Colle v Chief Constable of the Hertfordshire Police (Secretary of State for the Home Department intervening) [2008] UKSC 50, [2009] AC 225 is a further case in which there was in Lord Hopes words a highly regrettable failure to react to a prolonged campaign by Jeffrey threatening the use of extreme criminal violence against Mr Smith, which in the event did culminate in Jeffrey attacking Mr Smith and very severely injuring him.
+The House again applied the approach in Hill and Brooks in concluding that there was no actionable duty of care.
+In all these cases the existence of a duty of care was negatived, although it could not be said that the police action or inaction occurred in the heat of the moment and the failings occurred over considerable periods when the police had the opportunity to think about and investigate the position and take protective measures.
+In Multiple Claimants v Ministry of Defence [2003] EWHC 1134 (QB), it was claimed that the Ministry was in breach of a duty of care to provide service personnel with a safe system of work.
+Owen J considered (para 2.C.16) that In aggressive operations the objective will be defeat of the enemy; in defensive operations the successful repulse of the enemy.
+In the planning of and preparation for such operations the interests of service personnel must be subordinate to the attainment of the military objective.
+In my judgment the military cannot be constrained by the imposition of civil liability in the planning of and preparation for such operations any more than in their execution.
+The planning of and preparation for military operations will include decisions as to the deployment of resources.
+On that basis, he dismissed a claim that the Ministry had failed to make proper arrangements for psychiatric support in combat on the basis that Decisions as to the deployment of medical resources in operations in which service personnel may engage in hostilities fall within the combat immunity . (para 10.12).
+However, he disagreed with the Ministrys more extended submission that no cause of action can arise in relation to injury sustained in combat irrespective of whether the acts or omissions to which such injury is attributable fall within the combat immunity (para 2.C.18).
+He reiterated his view on this point in his judgment at first instance in the present cases concerning the Challenger and Ellis claims.
+Mr Eadie QC takes issue with Owen J on the point.
+However, it was explained by Owen J with an example which suggests that he had in mind a relatively narrow situation not presently relevant.
+The explanation was in these terms: If the restriction to the duty of care does not arise on the facts, and a claimant is able to demonstrate breach of duty resulting in injury and consequential loss and damage, it is immaterial that the injury was sustained in the course of combat.
+The question with regard to the injury is then simply one of causation; is it attributable to the breach of duty? The point can be illustrated by reference to the claimants' contention that the MoD was under a duty to devise and implement a system for screening recruits so as, and I paraphrase, to eliminate those vulnerable to stress, and that as a result of breach of that duty recruits who should have been rejected were enlisted, and subsequently sustained psychiatric injury when exposed to the trauma of battle.
+If that contention is well founded, it will obviously not be open to the MoD to argue that the combat immunity applies to the relevant acts or omissions.
+The injury will have been sustained in combat; but the exposure to stress in combat is simply the mechanism by which the breach causes injury.
+In considering the Challenger claims and the Ellis claim for negligence, Owen J referred to his previous decision in Multiple Claimants as well as to Elias Js decision in Bici.
+He accepted the latter as standing for the proposition that any exception on grounds of combat immunity should be narrowly construed.
+He confined the extension of the doctrine of combat immunity, recognised in Multiple Claimants, to the planning and preparation of the particular operations in which injury was sustained, as opposed to planning and preparation made . in general for possible unidentified further military operations (para 94).
+He was not persuaded that the fact that the equipment claims were likely to give rise to issues of procurement and allocation of resources demonstrated conclusively that it would not be fair, just and reasonable to impose the duties of care for which the claimants contend (para 107).
+He was not persuaded that either the equipment or the claims based on lack of pre deployment training had no real prospect of success.
+He thought that different considerations might apply to the claims so far as based on lack of in theatre training, but that this issue would be better determined by the trial judge.
+He struck out the Ellis claim for negligence in para 26.1 (failure to limit patrols to other vehicles) as falling squarely within combat immunity.
+The Court of Appeal upheld Owen Js conclusion that the equipment and training claims arguably fall outwith the scope of combat immunity, and also allowed the appeal in respect of para 26.1.
+Three points arise.
+First, in my opinion, the decisions below underestimate the inevitable inter linking of issues relating to the supply of technology and equipment and to training for active service with decisions taken on the ground during active service.
+As noted in para 110 above, it is not possible to consider the Challenger claims without considering the conduct of those on the ground.
+If it were suggested, as might be possible, that the real cause of the incident was the failings of a local commander, the court would, on the claimants case, find itself having to adjudicate on this suggestion in order to establish whether there was any relevant causative failure regarding the prior supply of equipment or training.
+As Lord Hope notes (para 91), the claimants have, quite naturally, been careful not to make any criticism of those actually engaged on the ground.
+But that indicates, rather than resolves, the problem.
+The proper attribution of responsibility cannot depend upon how a claimant frames his case.
+The Ministry of Defence could itself advance a case that the real cause was not the fault of someone responsible for procurement, but of someone on the ground.
+In any event, as the present pleadings show, all the facts would be laid before the court, which would have to decide upon causation looking at them as a whole.
+Allegations about procurement cannot in the case of the Challenger claims be divorced from consideration of the conduct of those using the equipment on the ground.
+Lord Hope recognises this in paragraph 80, but draws the opposite conclusion to that which I would draw.
+He considers that all such circumstances must be evaluated with a view to striking a balance between competing considerations (paras 61, 78 80 and 98 99).
+I would conclude the opposite that all such circumstances are inter related and essentially non justiciable.
+Second, Mr Hermer QC for the Challenger claimants accepts that tactical decisions, wherever taken, are not actionable.
+Mr Hermer must on any view be correct, I consider, on this point.
+But, if so, it opens the question in relation to the Snatch Land Rover claim by Ms and Mrs Ellis whether a complaint of failure to supply a better armoured or equipped vehicle is not really a complaint about tactics. (In contrast to Mr Hermer, Mr Weir QC for the Smith and Ellis claimants would confine combat immunity so narrowly that it could not embrace in the case of the Ellis claimants either a question why allegedly available equipment (Element A) was not fitted to Private Elliss Snatch Land Rover on the day of the casualty or a question why the patrol to the Iraqi police station was not delayed a day or two to enable it to be fitted.)
+Third, both in that connection and more widely, I consider that Owen J was clearly right to conclude in Multiple Claimants that the military cannot be constrained by the imposition of civil liability in the planning of and preparation for such operations any more than in their execution.
+The planning of and preparation for military operations will include decisions as to the deployment of resources.
+I would also refer to cautionary words of Lord Keith in Rowling v Takaro Properties Ltd [1988] AC 473, 502D F: The third [matter] is the danger of overkill.
+It is to be hoped that, as a general rule, imposition of liability for negligence will lead to a higher standard of care in the performance of the relevant type of act; but sometimes not only may this not be so, but the imposition of liability may even lead to harmful consequences.
+In other words, the cure may be worse than the disease.
+The claims that the Ministry failed to ensure that the army was better equipped and trained involve policy considerations of the same character as those which were decisive in Hill, Brooks and Van Colle.
+They raise issues of huge potential width, which would involve courts in examining procurement and training policy and priorities over years, with senior officers, civil servants and ministers having to be called and to explain their decisions long after they were made.
+Policy decisions concerning military procurement and training involve predictions as to uncertain future needs, the assessment and balancing of multiple risks and the setting of difficult priorities for the often enormous expenditure required, to be made out of limited resources.
+They are often highly controversial and not infrequently political in their nature.
+These may well also be influenced by considerations of national security which cannot openly be disclosed or discussed.
+Lord Rodger summarised the position in relation to responsibility, accountability and investigation in Catherine Smith (para 127) in terms with which, as I have said, Lord Walker agreed, as I also do: Once it is established, say, that a soldier died because the blast from a roadside bomb penetrated the armour plating on his vehicle, it may well be inferred that he would not have died if the plating had been stronger.
+And that simple fact may be worth pointing out as a possible guide for the future.
+But questions, say, as to whether it would have been feasible to fit stronger protection, or as to why the particular vehicles were used in the operation or campaign, or as to why those vehicles, as opposed to vehicles with stronger protection, were originally purchased by the Ministry of Defence, or as to whether it would have been better to have more helicopters available etc, all raise issues which are essentially political rather than legal.
+That being so, a curious aspect of counsel's submissions before this court was the complete absence of any reference to Parliament as the forum in which such matters should be raised and debated and in which ministers should be held responsible.
+Of course, in consequence of pressure brought to bear by Parliament, the government might set up an independent inquiry with wide terms of reference to look into all aspects of a situation, including the political aspects.
+Also in Catherine Smith Lord Brown at para 146 asked rhetorically: Is it really to be suggested that even outside the area of the Council of Europe Strasbourg will scrutinise a contracting state's planning, control and execution of military operations to decide whether the state's own forces have been subjected to excessive risk (risk, that is, which is disproportionate to the objective sought) ? May Strasbourg say that a different strategy or tactic should have been adopted perhaps the use of airpower or longer range weaponry to minimise the risk to ground troops notwithstanding that this might lead to higher civilian casualties? The question was asked in the context of jurisdiction, but, jurisdiction having been established under article 1, both the question and Lord Browns evident scepticism remain relevant.
+The claimants case is that during or after any war any injured soldier or the relatives or dependants of any soldier killed in combat could sue the state for alleged failures in the preparation or equipping of the armed forces for combat.
+Logically, if that is so, then a soldier might, even during the war, complain that his or her equipment or training was inadequate and that it would be a breach of the states common law duty of care and/or duties under the Human Rights Convention even to order him or her to go into combat with it.
+If domestic legislation compelled this, then the soldier could seek relief in the Strasbourg court maybe even interim relief prohibiting the further use or giving of orders to use the allegedly defective equipment.
+One may also recall the facts of R v Jones (Margaret) [2006] UKHL 16; [2007] 1 AC 136, where protestors sought to disrupt Fairford Airbase in order to prevent intervention in Iraq, and pleaded in defence that they were preventing the international crime of aggression.
+Pointing to defective equipment and seeking to ban its use could have a considerable disruptive effect.
+Not only would there be a huge potential diversion of time and effort in litigation of such issues in an area of essential national interest (whether before, during or after hostilities).
+There must be risks that the threat of exhaustive civil litigation following any active military operation would affect decision making and lead to a defensive approach, both at the general procurement and strategic stages and at the tactical and combat stages when equipment was being deployed.
+The duties of care owed by soldiers to civilians during peace keeping operations or by the state to its soldiers in peace are not in issue and raise different considerations.
+I examined some of the cases which the Strasbourg court has decided in this area in para 196 of my judgment in Catherine Smith.
+When considering whether a duty of care exists, it is always relevant to ask in what context and to avoid what consequences. (Compare in another branch of the law South Australia Asset Management Corporation v York Montague Ltd [1997] AC 191 and Nykredit Mortgage Bank plc v Edward Erdman Group Ltd (No 2) [1997] 1 WLR 1627.) Equipment should at least be safe and training adequate for peacetime training and activities, and its adequacy in the face of enemy action will not be tested in the same way.
+But procurement and training decisions and priorities are geared primarily to the needs and risks inherent in active military operations, when enemy activity will be aimed at killing British soldiers in as many unexpected ways as possible.
+It is after a death or injury occurring in such operations that, as the present cases show, questions can be raised as to whether different technology, equipment or training or different decisions regarding deployment and use of equipment like vehicles might not have made all the difference to the incidence of the death or injury.
+The relevant question for present purposes is therefore whether the state owed a duty of care to avoid the death or injury during the course of active service which actually occurred.
+It will often not be difficult with hindsight to point to different decisions that might have been made or preparations made.
+Would the disaster of Isandlwana have been avoided had the army command equipped Lord Chelmsfords forces with the heliograph? Or was the cause the failure to form a laager? Or the deployment of troops over too wide a perimeter? Or the lack of screwdrivers to open the ammunition boxes quickly enough? And would many disastrous casualties of the First World War have been avoided if the War Office had recognised the significance of the proposal for a tank put to it in 1912, 1914 and 1916 by the Australian engineer Lancelot de Mole of whom a post war Commission on Awards to Inventors said in 1919: We consider that he is entitled to the greatest credit for having made and reduced to practical shape as far back as the year 1912 a very brilliant invention which anticipated and in some respects surpassed that actually put into use in the year 1916.
+It was this claimant's misfortune and not his fault that his invention was in advance of his time, and failed to be appreciated and was put aside because the occasion for its use had not then arisen.
+Was the fall of Singapore to numerically inferior forces, with the ensuing slaughter and torture, due to culpable failures to fortify the Malay peninsular or landward side of Singapore or to provide armoured vehicles or aircraft to protect both? Or was it due to failures of military commanders on the ground? Or was it inevitable in the context of what Churchill described as our bitter needs elsewhere?
+To offer as a panacea in relation to these points the injunction that courts should be very cautious about accepting such claims is to acknowledge the problem, but to offer no real solution.
+Had it been, the same panacea would have been adopted as the solution by the House in Hill, Brooks and Van Colle.
+My conclusions do not mean that every death or injury occurring in the course of military conflict falls necessarily outside the scope of any duty of care.
+There will be deaths and injuries occurring during active service which are unconnected with the risks of active combat or which arise, as Owen J recognised was possible (para 123 above), from breaches of duty independent of active combat.
+An accident arising from a defect in equipment which could just as well have occurred on Salisbury Plain and owed nothing significant to any risk of war would be an example.
+Private Smiths sad death in Catherine Smith likewise.
+I consider that that the Challenger claims, which are only in common law negligence, should be struck out in their entirety on the basis that the state owes no such duty of care as alleged with regard to the provision of technology, equipment or training to avoid death or injury in the course of an active military operation.
+Similarly, with regard to the Ellis claim in negligence, I would hold that there was no such duty of care as alleged regarding the provision of different or differently equipped vehicles or, a fortiori, regarding the deployment on patrol on 28 February 2006 of the Snatch Land Rovers which were deployed.
+Moses LJ suggested in the Court of Appeal (para 60) that it was necessary to consider the evidence in order to decide when active operations start and when they finish and that Owen J had recognised that the present cases may not fall within the scope of combat immunity.
+But, so far as this suggests that Owen J doubted whether active operations were afoot at the dates relevant to either the Smith claim (16 July 2005) or the Ellis claim (28 February 2006), it is wrong.
+No such argument even appears to have been raised before Owen J or before the Court of Appeal, in relation to either claim.
+Further, in paras 113 114 of his judgment Owen J expressly struck out the Ellis claim, so far as it relied on the failure to limit the patrol, on the basis that combat immunity did apply as at 28 February 2006.
+Before the Supreme Court, the nearest there is to any suggestion is the elliptical statement made in para 186 of the Ellis case in the context of combat immunity that Private Ellis was not engaged in a major combat operation that had ended in May 2003.
+He was part of an armed force providing security and stability to a region of Iraq; at the time of his death he was on a patrol returning from a trip to the Iraqi police headquarters in Al Amarah.
+It is the Ellis claimants case that this activity should be treated as akin to a peace keeping, police or anti terrorist activity so that the ambit of combat immunity should be very tightly constrained around the actual patrol in question.
+Even that statement does not challenge the existence of a combat operation involving the patrol, and in any event there is no basis for allowing an entirely new point, contrary to the basis on which the matter was put before the judge, to be raised at this stage.
+I would therefore also hold that the Ellis claim should be struck out in so far as it is made for common law negligence.
+Article 2
+As stated in para 103 above, article 2 is said to involve two substantive obligations: framework and operational.
+In Stoyanovi v Bulgaria (Application No 42980/04) decided 9 November 2010, the Strasbourg court was concerned with an accidental death in a military training exercise a practice parachute jump during which the deceaseds head hit the aircrafts wheel rendering him unconscious and so unable to open his parachute.
+The court referred to the operational duty arising, on the authority of Osman v United Kingdom and neryildiz v Turkey, where authorities know or ought to know of a real and immediate risk to life, or of a situation inherently dangerous to life, and to the framework duty in the public health sphere to make regulations compelling hospitals to adopt appropriate measures to protect patients lives and to have an effective independent judicial system to determine the cause of death of patients in hospital and make those responsible accountable.
+It then went on, at para 61, Positive obligations will vary therefore in their application depending on their context.
+In the present case, which concerns an accident during a military training exercise, the Court notes that while it may indeed be considered that the armed forces' activities pose a risk to life, this is a situation which differs from those dangerous situations of specific threat to life which arise exceptionally from risks posed by violent, unlawful acts of others or man made or natural hazards.
+The armed forces, just as doctors in the medical world, routinely engage in activities that potentially could cause harm; it is, in a manner of speaking, part of their essential functioning.
+Thus, in the present case, parachute training was inherently dangerous but an ordinary part of military duties.
+Whenever a State undertakes or organises dangerous activities, or authorises them, it must ensure through a system of rules and through sufficient control that the risk is reduced to a reasonable minimum.
+If nevertheless damage arises, it will only amount to a breach of the State's positive obligations if it was due to insufficient regulations or insufficient control, but not if the damage was caused through the negligent conduct of an individual or the concatenation of unfortunate events (see, for comparison, Kalender v Turkey, Application No 4314/02), 43 47, 15 December 2009).
+The courts reasoning appears to have been that, in so far as military life is inherently dangerous, there could be no question of any operational duty to prevent that danger.
+This seems fairly self evident, and is certainly consistent with the Strasbourg courts recognition in other cases of the need to bear in mind the particular characteristics of military life and its effects on the situation of individual members of the armed forces (Engel v The Netherlands (No 1) (1976) 1 EHRR 647, para 54), meaning, for example, also that many acts that would constitute degrading or inhuman treatment in respect of prisoners may not reach the threshold of ill treatment when they occur in the armed forces, provided that they contribute to the specific mission of the armed forces in that they form part of, for example, training for battlefield conditions (Chember v Russia, (Application No 7188/03) (unreported) given 3 July 2008, para 49).
+However, as the court stated in Stoyanovi, the state must by the same token have a system of rules and sufficient control to reduce the risks to a reasonable minimum.
+In Kalender v Tutrkey (Application No 4314/02) (unreported) given 15 December 2009, cited by the court, liability under the substantive aspect of article 2, was held to exist in the light of numerous failings in the structure and operation of a railway station, leading to passengers having, without supervision or warning, to disembark and cross a line used by other trains and being killed in the process.
+Accordingly, it appears that the framework duty may in appropriate circumstances operate at a low level.
+In domestic contexts where the state is taking armed action affecting or liable to affect third persons, the court has undertaken quite close and in the upshot critical examination of the states conduct.
+I cited examples in para 196 of my judgment in Catherine Smith: Such cases start with McCann v United Kingdom (1995) I EHRR 97, relating to the shooting by SAS officers of members of the Provisional IRA suspected of planning to attack the Royal Anglian Regiment in Gibraltar, and include Isayeva, Yusupova and Bazayeva v Russia (Applications Nos 57947/00, 57948/00 and 57949/00), 24 February 2005, and Isayeva v Russia (Application No 57950/00), 24 February 2005, relating to the conduct of military operations by the Russian armed forces against Chechen separatist fighters which led to the deaths of civilians.
+In such cases, it appears that the exigencies of military life go to the standard and performance, rather than the existence of, any Convention duty.
+The question is whether the Strasbourg court would take a similar attitude to the responsibility of a state for the death of a member of its own armed forces in circumstances alleged to have involved mistaken decisions in the course of an operation or act of war (such as alleged by Mrs Smith in at least paragraphs 26.2 to 26.5 of her claim), or failings in planning or in the equipping or training of such forces (such as alleged by Mrs Smith in paras 26.1 and it seems paras 26.6 and 26.7 of her claim and by the Ellis claimants in probably all three particulars in their para 26).
+In this connection it is relevant to bear in mind that the Strasbourg court has curtailed the operational duty, so that it does not embrace mere casual acts of negligence, certainly in the field of health care and, as appears logical, in other fields: see my judgment in Catherine Smith, para 201 and the cases there cited, to which can now be added Stoyanovi v Bulgaria (Application No 42980/04), para 61, where the European Court of Human Rights said that a death occurring during an inherently dangerous training activity (parachute jumping) undertaken by a soldier would not involve any breach of article 2 if caused through the negligent conduct of an individual (see para 138 above).
+Mr Weir QC regretted this qualification as deeply unsatisfactory, and as a manifestation of the fact that (in his words) the search for principle has been called off in this area.
+An alternative view might be that it would have been better if the Strasbourg court had left the development and application of the law of tort to domestic legal systems, subject to clearly defined criteria, rather than set about creating what amounts in many respects to an independent substantive law of tort, overlapping with domestic tort law, but limited to cases involving death or the risk of death.
+Be that as it may be, the exception for casual acts of negligence is relevant to show that liability under article 2 can be tailored and limited in what the Strasbourg court regards as appropriate circumstances.
+In the present circumstances, the question arises whether that the Strasbourg court would regard article 2 in its substantive aspect as making the state liable for the death in combat of one soldier due to alleged negligence of his commander or of another soldier.
+The prospect of the Strasbourg court reviewing the conduct of combat operations in this way seems to me sufficiently striking, for it to be impossible to give this question a positive answer.
+If the European Court considers that the Convention requires it to undertake the retrospective review of armed conflicts to adjudicate upon the relations between a state and its own soldiers, without recognising any principle similar to combat immunity, then it seems to me that a domestic court should await clear guidance from Strasbourg to that effect.
+That leaves for consideration whether the framework duty involves an obligation on the part of the state to exercise due care in the course of planning armed operations, and in equipping and training its armed forces, so as to reduce or limit the risks to life involved in such operations.
+In my opinion it is not possible to conclude that the Strasbourg court would hold that such matters are justiciable under the Convention, any more than they are at common law.
+I am not over enamoured of the cautionary warning to this court that the road to Strasbourg is a one way street, which a claimant can tread if this Court has not gone far enough, but which the state cannot tread if this Court goes too far.
+If it is clear from prior authority or this Court is otherwise confident about what Strasbourg will decide, then we should decide the issue as we believe correct.
+But in the present very difficult case, two connected considerations lead me to consider that caution is called for.
+First, having decided that the common law recognises no such duty or care or claims as the claimants advance, we should not lightly conclude, in so important and sensitive an area of national life, that the Strasbourg court would take a different view.
+Second, since I have no confidence about the scope or application of any positive duties which the Strasbourg court might recognise under article 2 in the area, I believe it would be wrong for this Court to advance way ahead of anything that it has yet decided.
+It should be for the Strasbourg court to decide whether it will review the procurement and training policy of the British army over recent decades in the context of claims under article 2 for compensation arising from deaths of serving soldiers during active military operations.
+Support for the view that the Strasbourg court does recognise areas of policy into which the Convention protection does not stretch is afforded by two cases.
+First, in Taylor v United Kingdom (Application No 23412/94) (unreported) 30 August 1994, the Commission held that article 2 did not require the investigation into the killing by Beverley Allitt, a hospital nurse, of child patients to enquire into the responsibility in the NHS for alleged inadequate systems, resource shortages and weak leadership.
+In holding the application manifestly ill founded and inadmissible, it stated: The Commission acknowledges that neither the criminal proceedings nor the Inquiry addressed the wider issues relating to the organisation and funding of the National Health Service as a whole or the pressures which might have led to a ward being run subject to the shortcomings apparent on Ward Four.
+The procedural element contained in article 2 of the Convention however imposes the minimum requirement that where a state or its agents potentially bear responsibility for loss of life, the events in question should be subject to an effective investigation or scrutiny which enables the facts to become known to the public, and in particular to the relatives of any victims.
+The Commission finds no indication that the facts of this case have not been sufficiently investigated and disclosed, or that there has been any failure to provide a mechanism whereby those with criminal or civil responsibility may be held answerable.
+The wider questions raised by the case are within the public domain and any doubts which may consequently arise as to policies adopted in the field of public health are, in the Commissions opinion, matters for public and political debate which fall outside the scope of article 2 and the other provisions of the Convention.
+The second case concerned article 3 of the Convention.
+In Banks v United Kingdom (2007) 45 EHRR SE2, the ECtHR rejected a claim that article 3 required a public inquiry into allegations of torture and inhuman treatment of prisoners at a UK prison.
+The Court held that the facts had been sufficiently investigated and that: The wider questions raised by the case as to the background of assaults and the remedial measures apt to prevent any recurrence in a prison in the future are, in the Courts opinion, matters for public and political debate which fall outside the scope of article 3 of the Convention.
+In my opinion therefore this Court should proceed on the basis that the policy considerations which guide its domestic law in the present area of national interest will find an echo in Strasbourg, and not invade a field which would involve, in the context of claims for civil compensation, extensive and highly sensitive review with the benefit of hindsight the United Kingdoms countrys policies, strategy and tactics relating to the deployment and use of its armed forces in combat.
+The United Kingdoms performance of its investigatory and procedural duties under article 2 is not in doubt, as attested by the sadly numerous inquests (investigating and recording the circumstances of each death) and the still incomplete Chilcot Enquiry (delayed inter alia it is understood by problems relating to the release or use of documents with national security implications).
+The issue with which this judgment is concerned is whether deaths and (at common law) injuries in combat fall to be investigated in the civil courts, at whatever level in the armed forces, Whitehall or the government responsibility for them is suggested to arise.
+The answer I would give is, no.
+The majority approach
+I agree with Lord Hope (para 100) about the paramount importance that the work that the armed services do in the national interest should not be impeded by having to prepare for or conduct active operations against the enemy under the threat of litigation if things should go wrong.
+But I do not consider that the majority approach reflects or meets this imperative.
+In summary, I understand that this approach: (a) recognises at common law a principle of combat immunity, as excluding liability for negligence in respect of any act or omission on the part of those who are actually engaged in active combat (paragraph 82), since no one can imagine a court undertaking the trial of an issue as to whether a soldier on the field of battle or a sailor on his ship might reasonably be more careful to avoid causing civil loss or damage (para 94); (b) recognises allegations as beyond the reach of article 2 . if they relate to things done or not done when those who might be thought to be responsible for avoiding the risk of death or injury to others were actively engaged in direct contact with the enemy (para 76), and extends this to operational decisions made on the ground by commanders, whatever their rank or level of seniority (para 64); but also; (c) suggests that liability (under the Osman v United Kingdom principle, (1998) 29 EHRR 245, para 115) for failure to take preventative operational measures in the face of a real, direct and immediate threat to life could extend to procurement decisions taken on the ground about the provision of vehicles or equipment, as well as to decisions taken about their deployment (para 78); (d) recognises that the more political (in a broad or narrow sense) a decision, the slower a court should be to impose liability at common law and/or under article 2 (para 65), so that it will easy to find that allegations are beyond the reach of article 2 and do not give rise to liability in common law negligence if they concern decisions that were or ought to have been taken about training, procurement or the conduct of operations . at a high level of command and closely linked to the exercise of political judgment and issues of policy (paras 76 and 99).
+It is unclear to me whether on this approach liability is said to be beyond the reach of article 2 because of its nature or simply because of an injunction that courts should be very slow to find fault in the areas concerned.
+Whatever the position in that respect, I see real difficulties in the undefined boundaries and the suggested middle ground between on the one hand (a) and (b) and on the other (d).
+The suggestion in para 78 that Osman type liability could exist as mentioned in point (c) would also appear liable to extend fault based liability to all aspects of decision making during combat operations.
+What is the logical distinction between deployment of equipment and of troops? The inter twining of issues of procurement and training with issues relating to the causation of injury or death on the battlefield seems highly likely to lead to a court undertaking the trial of unimaginable issues as to whether a soldier on the field of battle or a sailor on his ship might reasonably have been more careful.
+Further, I see little attraction in a scheme according to which the acts or omissions of the man on the ground and the policy maker in Whitehall give rise either to no liability at all or only to liability in egregious cases, but the procurement, training and deployment decisions of a middle rank commander (query, in Whitehall or in local headquarters or both) are subject to scrutiny under conventional principles of fault based liability.
+All depends, as I understand it, under article 2 upon balancing private and public interests and Convention rights (para 61); or upon balancing (i) the need to avoid undermining the ability of a state to defend itself, or its interests, at home or abroad (para 66) and the paramount importance of not impeding the armed forces against (ii) the consideration that (at common law) soldiers injured or (at common law and under the Convention) the relatives and dependants of soldiers killed should be able, wherever possible, to benefit by the more substantial civil measure of recovery that fault based liability brings, over and above the no fault compensation available in cases of injury or death as described by Lord Carnwath in para 181 of his judgment.
+Still more fundamentally, the approach taken by the majority will in my view make extensive litigation almost inevitable after, as well as quite possibly during and even before, any active service operations undertaken by the British army.
+It is likely to lead to the judicialisation of war, in sharp contrast with Starke Js dictum in Shaw Savill (1940) 66 CLR 344 that war cannot be controlled or conducted by judicial tribunals.
+No doubt it would be highly desirable if all disputes with international legal implications were to be submitted to international judicial resolution, with those involved abiding by the outcome; and if wars were no more.
+But, in the present imperfect world, there is no precedent for claims to impose civil liability for damages on states whose armed forces are killed or injured in armed combat as a result of alleged failures of decision making either in the course of, or in procuring equipment or providing training for, such combat.
+All the claims made in these appeals fall in my view within one or other of these areas where the common law should not tread.
+Similarly, we should not assume that the European Court of Human Rights would regard it as appropriate to enter such areas under article 2, and there is to my mind wholly insufficient guidance to lead to any conclusion that it would.
+We cannot, at least at present, refer a case to Strasbourg to seek its guidance on the proper interpretation of article 2.
+But my conclusions as to the common law position and its rationale, the dearth of any authority for any like claim in the Strasbourg jurisprudence and statements in that jurisprudence showing that policy decisions can be non justiciable all lead me to conclude that we should for the present proceed on the basis that the outcome in Strasbourg would in the present areas be no different from the outcome at common law.
+Conclusion
+The upshot is that, in my opinion, although the soldiers involved in these cases were within the United Kingdoms jurisdiction for the purposes of article 2 of the Convention of Human Rights at the material times, the claims made under article 2 and/or in negligence in respect of their deaths were, in the case of the Smith and Ellis claims, rightly struck out by the courts below and the Ministry of Defences appeal seeking to strike out the Challenger claims should be allowed.
+LORD CARNWATH
+Introduction
+I agree entirely with Lord Hopes treatment of the jurisdiction issue.
+There is also much with which I agree in his discussion of the substantive issues, in particular his comment (para 100) on the paramount importance that the preparation for and conduct of active operations should not take place under the threat of litigation if things should go wrong.
+However, in agreement with Lord Mance, I do not think it is an adequate response at this level for us simply to send the claims for trial with general injunctions to exercise great caution or special care.
+Having heard full argument on all these issues, we should be able to rule whether the claims are in principle viable or not; or at least to give clearer guidance as to what answers to what questions of fact may or may not lead to a favourable result following trial.
+I also agree with Lord Mance that, contrary to the approach adopted by Lord Hope, we should first concentrate on the common law aspects of the claims.
+In this respect, the balance of the relevant issues may have been distorted by the sequence of submissions at the hearing.
+It is understandable, given the importance of the jurisdictional issues arising under the Convention, that much of the oral hearing time was taken up with submissions on that subject, and as a natural extension with arguments about the substantive scope of article 2 itself.
+On the latter aspect, I have nothing to add to Lord Mances reasoning and conclusions, with which I agree.
+However, like him, I consider that our primary responsibility should be for the coherent and principled development of the common law, which is within our own control.
+We cannot determine the limits of article 2.
+Indeed, the multiplicity of views expressed by the nine members of this court, when this issue was previously considered in Catherine Smith, shows how difficult and unproductive it can be, even at this level, to attempt to predict how Strasbourg will ultimately draw the lines.
+The trial judge will be in no stronger position.
+With respect to Lord Hope (para 79), if the problem is a lack of directly relevant guidance from Strasbourg, it is hard to see how, simply by hearing further evidence or finding further facts, he or she will be better able to fill that gap, still less to do so with complete confidence.
+Common law the nature of the issues
+It is important to recognise that we are being asked to authorise an extension of the law of negligence (as indeed of article 2), into a new field.
+We have not been referred to any authority in the higher courts, in this country or any comparable jurisdiction, in which the state has been held liable for injuries sustained by its own soldiers in the course of active hostilities.
+Further we are concerned only with duties at common law, rather than under statute.
+As the Court of Appeal recognised [2013] 2 WLR 27 (para 38), statutory regulations governing the responsibilities of the Ministry as employers do not apply outside the United Kingdom.
+Mr Eadies case, on behalf of the Ministry, was advanced on a broad front.
+As formulated in his printed case, this involved a root and branch objection to any form of civil liability in this area.
+It was introduced by a lengthy section headed: The difficulties courts would face grappling with the issues raised in these claims (paras 72 92).
+Not only were the courts institutionally incompetent to resolve such issues which are essentially matters of political and military judgement; but there are strong reasons both of public policy and democratic accountability for them not seeking to do so.
+There is some common ground.
+There is no dispute as to the existence in domestic law of a principle known as combat immunity, relating to decisions and actions in the heat of battle.
+Furthermore, at the other end of the spectrum Lord Hope accepts, as I understand it, that high level decisions about procurement or conduct of operations are not open to review in the courts.
+This dichotomy is most clearly stated in his para 76: It will be easy to find that allegations are beyond the reach of article 2 if the decisions that were or ought to have been taken about training, procurement or the conduct of operations were at a high level of command and closely linked to the exercise of political judgment and issues of policy.
+So too if they relate to things done or not done when those who might be thought to be responsible for avoiding the risk of death or injury to others were actively engaged in direct contact with the enemy.
+Although this comes as part of his consideration of article 2, he treats it as equally relevant to the common law claims (para 99).
+On that view, the difference between us is over the extent (if any) of what he calls the middle ground, and whether its boundaries can only be determined after the finding of further facts.
+Here too the balance of the discussion may have been distorted by the course of the submissions at the hearing.
+The emphasis of the common law debate was directed mainly to the scope of the combat immunity defence as such, rather than issues arising under the general law of negligence.
+No doubt reflecting that emphasis, the wider issues are dealt with relatively shortly at the end of Lord Hopes judgment.
+In my view, however, it is within that broader compass that the solution to these difficult questions must be found if not at this preliminary stage, then following the trial.
+In truth, the claimants are caught on the horns of a dilemma.
+The operational phases of the undertaking, which might otherwise under ordinary principles have been expected to give rise to a duty of care (see eg Wade and Forsyth Administrative Law, 10th ed (2009), p 653ff; Craig Administrative Law, 7th ed (2012), p 908ff) are, as the claimants accept, the very phases which are excluded from review by the combat immunity defence.
+On the other hand the further back in time they seek to direct their challenge so as to include issues of planning, procurement, and training, the more they have to confront the competing principle that discretionary decisions about policy and resources are not justiciable.
+The issue is whether it is possible to carve out some middle ground of potential liability.
+The answer to that question raises issues of principle, policy and practicality.
+Mr Weir QC rightly emphasises that the importance of another policy consideration, the principle that where there is a wrong there should be a remedy, described by Lord Dyson JSC as a cornerstone of our system of justice (Jones v Kaney [2011] UKSC 13; [2011] 2 AC 398, para 113).
+From that principle he draws the submission that: The default position is one whereby the MoD owes its soldiers an orthodox employers duty of care.
+So it falls for the MoD to establish that public policy must operate to deny the existence of that recognised duty of care.
+However, that formulation begs a logically prior question.
+I agree that it is for the Ministry to make the case for any policy exception to any recognised duty of care.
+But the scope and content of any such duty of care are themselves matters for determination.
+In the modern law of negligence, the starting point for determining that issue is the application of the familiar three fold test laid down in Caparo Industries plc v Dickman [1990] 2 AC 605, 618 per Lord Bridge.
+In that context, the scope of any so called immunity necessarily overlaps with the question, under the third part of that test, whether it is fair, just and reasonable for the law to impose a duty of care at all (see Clerk & Lindsell On Torts 20th ed (2010), para 14 39ff Immunities).
+As Lord Browne Wilkinson has said: a holding that it is not fair, just and reasonable to hold liable a particular class of defendants whether generally or in relation to a particular type of activity is not to give immunity from a liability to which the rest of the world is subject.
+It is a prerequisite to there being any liability in negligence at all that as a matter of policy it is fair, just and reasonable in those circumstances to impose liability in negligence. (Barrett v Enfield London Borough Council [2001] 2 AC 550, 559)
+For that reason I agree with Lord Mance that the scope of combat immunity should now be discussed, not as a separate principle, but as part of the third element of the Caparo analysis.
+Equally, in my view, we should not see ourselves as necessarily constrained by the limits illustrated by the existing case law on combat immunity, developed in very different circumstances and (until Mulcahy) without reference to the modern law of negligence.
+Working by analogy
+In determining whether a duty of care should be imposed in a new factual situation, precedent is an important guide.
+In Caparo Lord Bridge proposed that the emphasis should be less on the search for underlying general principles, but rather on the development of the law incrementally and by analogy with established categories (ibid p 618, quoting Brennan J. in the High Court of Australia, Sutherland Shire Council v Heyman (1985) 60 ALR 1, 43 44).
+In the present context, apart from the cases on combat immunity as such (discussed by Lord Hope and Lord Mance) the closest analogies in my view are to be found in two lines of authority: first, the sequence of authorities relating to the immunity of the police, culminating in Van Colle v Chief Constable of the Hertfordshire Police (Secretary of State of the Home Department intervening) [2009] AC 225; secondly, in respect of the issue of breach, assuming an actionable duty of care is established, the cases relating to the law of negligence as applied to the emergency services, in particular to claims by employees.
+Police immunity
+On the issue whether a duty of care should be imposed, the most useful parallel in the modern law, in my view, is to be found in the sequence of authorities dealing with the possible liability of the police for alleged negligence in the course of investigating crime.
+In Hill v Chief Constable of West Yorkshire [1989] AC 53 it was held that for reasons of public policy the police owed no actionable duty of care to a victim in such circumstances.
+They were said to be immune from actions of this kind (p 64, per Lord Keith).
+Initial concerns that this approach might conflict with article 6 of the Convention by precluding consideration of the merits of the claim (see Osman v United Kingdom (1998) 29 EHRR 245) were dispelled by the Strasbourg court in Z v United Kingdom (2001) 34 EHRR 97.
+The Grand Chamber, following the lead of Lord Browne Wilkinson (X (Minors) v Bedfordshire County Council [1995] 2 AC 633,751) accepted the legitimate role of policy in determining the limits of liability: the Court is not persuaded that the House of Lords' decision that as a matter of law there was no duty of care in the applicants' case may be characterised as either an exclusionary rule or an immunity which deprived them of access to court the House of Lords was concerned with the issue whether a novel category of negligence, that is a category of case in which a duty of care had not previously been held to exist, should be developed by the courts in their law making role under the common law.
+The House of Lords, after weighing in the balance the competing considerations of public policy, decided not to extend liability in negligence into a new area.
+In so doing, it circumscribed the range of liability under tort law. (para 96, emphasis added) Echoing that approach, in Brooks v Comr of Police of the Metropolis [2005] UKHL 24; [2005] 1 WLR 1495, the House confirmed but qualified the core principle established in Hill.
+In his leading speech Lord Steyn said: since the decision of the European Court of Human Rights in Z v United Kingdom (2001) 34 EHRR 97, 138, para 100, it would be best for the principle in Hills case to be reformulated in terms of the absence of a duty of care rather than a blanket immunity. (para 27)
+Finally, in Van Colle v Chief Constable of the Hertfordshire Police [2009] AC 225, the House by a majority held that the same principle applied even where the police were aware of a specific threat to an individual witness.
+That is particularly helpful in the present context because it was concerned with the scope of the states liability both at common law and under article 2 of the Convention.
+I draw the following points from the judgments: The common law claim was to be considered on its own merits i) (stand on its own feet) rather than assimilated with the article 2 claim (para 82, per Lord Hope; para 136, Lord Brown). ii) The common law analysis began from the three fold test laid down in Caparo by which it must be shown that harm to B was a reasonably foreseeable consequence of what A did or failed to do, that the relationship of A and B was one of sufficient proximity, and that in all the circumstances it is fair, just and reasonable to impose a duty of care on A towards B. (para 42, per Lord Bingham). iii) The majority were able to support an exception based on public policy reasons which were accommodated within the third element of that test, that being accepted as a price to be paid by individuals denied for public policy reasons (as not being fair, just and reasonable within the Caparo principle) a civil claim in the interests of the community as a whole (para 139, per Lord Brown) iv) There was no suggestion that, because the core principle involved an exception to ordinary principles of liability, it should be narrowly construed.
+On the contrary, as Lord Brown put it, the wider public interest is best served by maintaining the full width of the Hill principle (para 139). v) The House was able to determine the limits of this principle on the basis of the pleadings.
+Again I quote Lord Brown (para 140): In common, I think, with all your Lordships, I regards this issue as plainly one which the House should decide one way or the other on the pleaded facts.
+Either a duty of care arises on these facts or it does not.
+No useful purpose would be served by allowing the action to go to trial for facts to be found and then for further consideration to be given to the applicable law. vi) Finally, the policy considerations justifying immunity in respect of the polices function of investigating crime were contrasted with civil operational tasks, in relation to which liability had been accepted in some decided cases (Lord Hope, para 79).
+Those examples were not regarded as undermining the core principle.
+This line of cases shows that it remains a proper function of the court, faced with a potential clash between public and private interests, to determine as a matter of policy the limits of any actionable duty of care, and to do so at the preliminary stage (see also Jonathan Morgan, Negligence into Battle [2013] CLJ 14, commenting on the Court of Appeals reasoning in the present case).
+Furthermore, so to determine the limits of liability in negligence in a new area, by balancing competing considerations of public policy, is within the margin allowed to the national courts by Convention law.
+Lord Hope acknowledges this line of authority, but declines to apply the same approach to the present context (paras 97 98).
+With respect, I find this difficult to understand.
+If this was an appropriate exercise in relation to the purely domestic policy concerns arising from police powers of investigation, how much more so in relation to the issues of vital national security raised by the preparation for and conduct of war?
+Negligence and the emergency services
+Assuming a duty of care is not excluded under the principles considered so far, the closest analogies are to be found in cases relating to the duties owed by employees to their staff in the context of the delivery of emergency services.
+King v Sussex Ambulance Service NHS Trust [2002] ICR 1413 contains an authoritative exposition of the relevant principles.
+The Court of Appeal dismissed a claim related to injuries sustained by an ambulance technician, who was required in the course of an emergency call to help in carrying a patient downstairs.
+Hale LJ, giving the majority judgment, summarised the relevant law (paras 21 23): The starting point is that an ambulance service owes the same duty of care towards its employees as does any other employer.
+There is no special rule in English law qualifying the obligations of others towards fire fighters, or presumably police officers, ambulance technicians and others whose occupations in the public service are inherently dangerous: see Ogwu v Taylor [1988] 1 AC 431.
+Such public servants accept the risks which are inherent in their work, but not the risks which the exercise of reasonable care on the part of those who owe them a duty of care could avoid.
+An employer owes his employees a duty to take reasonable care to provide safe equipment and a safe system of work, which includes assessing the tasks to be undertaken, training in how to perform those tasks as safely as possible, and supervision in performing them.
+This was subject to two qualifications: first, the further dimension identified by Denning LJ (Watt v Hertfordshire County Council [1954] 1 WLR 835, 838): It is well settled that in measuring due care you must balance the risk against the measures necessary to eliminate the risk.
+To that proposition there ought to be added this: you must balance the risk against the end to be achieved. and secondly (citing Colman J in Walker v Northumberland County Council [1995] ICR 702, 712): what is reasonable may have to be judged in the light of the service's duties to the public and the resources available to it to
+perform those duties
+In Hughes v National Union of Mineworkers ([1991] 4 All ER 278, cited by Lord Hope, para 97), this approach was taken a stage further so as to deny the existence of a duty of care at all.
+The claim was by a police officer who had been injured when, in the course of policing a strike at a colliery, he was knocked to the ground by an advancing crowd of pickets.
+He alleged negligence by the police officers on the day, rather than wider issues relating to police deployment generally or training (p 281a).
+The claim was rejected.
+It was held by May J, applying Caparo principles, and following Hill v Chief Constable of West Yorkshire that public policy requires that senior police officers should not generally be liable to their subordinates who may be injured by rioters or the like for on the spot operational decisions taken in the course of attempts to control serious public disorder.
+That, in my judgment, should be the general rule in cases of policing serious public disorders. (p 288d e).
+In Multiple Claimants (at para 2.C.17) Owen J treated Hughes as example of the application of the combat immunity defence, noting that it had been cited in that context by the Court of Appeal in Mulcahy v Ministry of Defence [1996] QB 732, ((at pp 747, 751).
+He was considering the question: Does the immunity apply to anti terrorist, policing and peace keeping operations of the kind in which British forces were engaged in Northern Ireland and in Bosnia? (para 2.C.17) He gave a qualified yes, concluding that the immunity would apply to peace keeping/policing operations in which service personnel are exposed to the attack or threat of attack (para 2.C.20).
+This interpretation seems open to question.
+However violent was the situation facing the police during the mineworkers strike, there could be no argument that it had anything to do with the conduct of war, nor was the judges reasoning linked to that group of cases.
+While I would not wish to question the actual decision in Hughes, it is in my view better seen as an application of King principles in an extreme situation.
+The decisions in both King and Hughes were concerned with the operations, rather than with prior policy decisions about the nature of the service and the resources to be committed to them, or issues such as procurement and training.
+To illustrate the possible limits of operational liability in relation to the emergency services, a useful analogy can be found in Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242.
+The police were held liable by Taylor J for damage caused by firing a gas canister into the plaintiffs premises without having fire fighting equipment available.
+On the other hand (relying on Dorset Yacht Co Ltd v Home Office [1970] AC 1004, and cases following it) the judge rejected a claim based on the failure of the Chief Constable to equip the force with an alternative CS gas device, known as Ferret, which did not carry the same fire risk.
+In that respect he accepted the submission that the constable was exercising a statutory discretion which could not be impugned if exercised bona fide (pp 1250 1251).
+That decision, which is cited by Wade (op cit p 656) as an illustration of the policy operational decision, has not as far as I aware been questioned in later authority.
+Statutory intervention
+Before drawing some conclusions, and for completeness, although it did not figure prominently in the oral argument, I should address the suggestion that the claim gains at least implicit support from the Crown Proceedings (Armed Forces) Act 1987.
+In short, it is said, there is no policy reason to extend the scope of immunity beyond acts or omissions occurring in the heat of battle, given that Parliament has now provided a new statutory framework covering both general liability and the means to secure greater protection where exceptionally it is required.
+It was the Crown Proceedings Act 1947 which opened the way generally to proceedings in tort against the Crown.
+However, section 10 preserved a specific and precisely defined statutory exception for the armed forces in relation to injury or death on service subject to the conditions outlined in the section, one being a certificate of entitlement to a service pension (see Clerk & Lindsell op cit para 5 08ff).
+That exclusion was repealed by the 1987 Act, but (by section 2) subject to a power for the Secretary of State to make an order reviving the effect of section 10 in certain circumstances.
+By section 2(2): The Secretary of State shall not make an order reviving the effect of the said section 10 for any purposes unless it appears to him necessary or expedient to do so (a) by reason of any imminent national danger or of any great emergency that has arisen; or (b) for the purposes of any warlike operations in any part of the world outside the United Kingdom or of any other operations which are or are to be carried out in connection with the warlike activity of any persons in any such part of the world.
+Although we were not referred by the parties to any background materials relating to that change, the Parliamentary history is of some interest.
+A written answer by the Secretary of State for Defence explains that it followed a review of the working of section 10 (Hansard HC Deb 08 December 1986 vol 107 cc85 86W).
+He said: Section 10 was included in the 1947 Act on the grounds that members of the Armed Forces, by the very nature of their profession, undertake hazardous tasks which ordinary members of the public do not.
+At that time it was believed that this provision would not result in any overall financial penalty against servicemen, because they received benefits, payable regardless of fault, which were in most cases comparable with those which a civilian might expect from the courts.
+Our review has, however, shown that damages which courts have awarded in some cases of personal injury have now risen to a level which can considerably exceed the benefits which the serviceman receives.
+The Government have concluded that repeal of section 10 is the only satisfactory course which will remove this disadvantage We shall need to be able to reactivate the provisions of section 10 in the event of impending or actual hostilities or grave national emergency.
+It was indicated that, while the government did not have time to promote its own legislation within the current programme, it would be ready to support a suitable Bill brought by a private Member.
+This invitation was taken up by Mr Winston Churchill MP (HC Deb 13 February 1987 vol 110 cc567 609).
+The Parliamentary Under Secretary of State, welcoming the Bill on the part of the government commented: The Bill seeks to retain the power to reactivate section 10 at a time of great national emergency or in the event of actual or impending hostilities.
+That is widely accepted by the House.
+Indeed, I have not heard any hon.
+Member advocate in the debate that section 10 should not be reimposed in time of war.
+It is not possible or desirable to draw hard and fast definitions of the circumstances in which the Government might seek to reimpose section 10, but the wording of clause 2 is satisfactory in this respect, making it clear from that the Secretary of State will need to consider it necessary or expedient to make an order to reactivate section 10 by reason of a great national emergency or imminent national danger or in the event of warlike operations or connected activities outside the United Kingdom.
+We are talking about a grave situation in Britain or elsewhere, and I draw the attention of the House to the fact that the wording of clause 2 to a large extent mirrors the wording of the provisions of the Reserve Forces Act 1980 dealing with the call up of reserves.
+Although there is no intention to create a formal link between, say, mobilisation and the reimposition of section 10, hon Members will recognise that that gives an indication of the gravity of the circumstances in which reimposition of section 10 would arise.
+Those passages raise a number of possible issues, on which we have heard no argument, as to either relevance or substance.
+One indeed might be the scope of phrase warlike activities (cf Reserve Forces Act 1996, s 54) in its possible application to peace keeping operations such as are in issue in the Snatch claims.
+We cannot resolve those questions within the scope of the arguments we have heard, and it is unnecessary to do so.
+It should be noted in any event that the provisions for no fault compensation have changed materially since 1987 when that debate took place.
+The governing legislation is now the Armed Forces (Pensions and Compensation) Act 2004, with the Armed Forces Compensation Scheme made under it.
+Awards are based on a detailed tariff, which is kept under review, and there is provision for appeal to a specialised tribunal.
+The scheme was most recently revised in 2011, following a review by Lord Boyce.
+However, it was not part of Mr Eadies case that the existence of that scheme, or its overlap with the law of negligence, should affect our consideration of the issues before us.
+In my view these two sets of statutory provisions are no more than neutral, and neither assists in establishing the limits of the duty of care in the present context.
+It is not argued for the claimants that the 1987 Act impinges in any way on the defence of combat immunity as hitherto understood.
+At most it is said to be relevant in determining what is fair, just and reasonable under Caparo principles.
+However, there is nothing in the 1987 Act to suggest that it was intended to inhibit the ordinary, and logically prior, function of the court in determining the limits of potential liability under the law of negligence.
+It is only in so far as liability is so established that the scope of immunity under the Act becomes relevant.
+Finally, under this section, it is of interest to note how similar issues have been dealt with in the USA, although again we have not heard any submissions on this aspect.
+Until 1946 claims against the Federal Government without its consent were barred by the doctrine of sovereign immunity.
+This position was altered by the Federal Tort Claims Act (FTCA), 28 U.S.C.A 1346(b), which can be seen as the equivalent of the Crown Proceedings Act 1947 in the United Kingdom.
+The FTCA abrogated sovereign immunity in relation to the Federal Government in most circumstances.
+However, pursuant to 28 U.S.C.A. 2680(j), the sovereign immunity of the Federal Government is not abrogated in respect of [a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.
+A further exception relating to injuries incident to service has been developed judicially, known as the Feres doctrine (Feres v United States, 340 U.S. 135 (S.Ct. 1950)).
+According to a leading textbook (Speiser, Krause and Gans The American Law of Torts (2010) para 17:5): The critical and lasting rationale of the Feres doctrine is the third one the military disciplinary structure.
+The lawsuit cannot require a civilian court to second guess military decisions [see Stencel Aero Engineering Corp v United States, 431 U.S. 666, 673 (1977)], and the suit cannot conceivably impair essential military discipline [see Chappell v Wallace, 462 U.S. 296, 300, 302, 304 (1983) (such complex, subtle and professional decisions as the composition, training . and control of a military force are essentially professional military judgments].
+Despite certain confusion in the broad statements of the courts, and notwithstanding critical comments, the Feres doctrine of denial of recovery has displayed a charmed life and continuing vitality.
+The cases show that in practice the Feres doctrine has been applied so as to give immunity in a wide range of situations, not directly linked to armed conflict.
+Conclusions
+I have discussed these issues at some length, albeit in a minority judgment, because in my view they deserve greater attention than they have been given in the oral argument or the majority judgment.
+They remain matters which will need to be considered when the case goes to trial.
+In this respect I do not regard my analysis as conflicting significantly with the majoritys approach.
+The main difference is that I would have preferred to reach decisions at this stage.
+In agreement with Lord Mance, and for the same reasons, I would have struck out the Challenger claims.
+As I have said, in considering the scope of any actionable duty of care relating to the preparation for or conduct of war activities in the modern law of negligence, I do not think we should regard ourselves as constrained by the limits of combat immunity as established in the earlier cases.
+The proper application of Caparo principles, as illustrated by the sequence of authorities on police liability, enables us to extend and adapt those limits within the scope of the modern law of negligence, and to hold that there is no middle ground of potential liability in relation to the preparation for, or conduct of, war.
+As I understand Lord Hopes judgment, it leaves the trial judge free, albeit after further factual inquiry, to reach the same conclusion.
+In my view, differing from Lord Mance in this respect only, we should apply different considerations to the later Snatch claims.
+They occurred in July 2005 and February 2006, after the time (May 2003) when (as Lord Hope explains: para 1) major combat operations ceased and were replaced by a period of military occupation.
+Now that the cases are to go to trial, I would not regard consideration of this issue as necessarily constrained by the shape of the arguments in the lower courts or before us.
+It is not surprising that Owen J drew no such distinction since, as I have noted, he had already held in Multiple Claimants that such operations were in principle within the scope of the combat immunity defence.
+The Court of Appeal did not address this issue in detail, but as I understand their judgment left it as raising questions of fact to be decided at trial.
+If as I believe the policy reasons for excluding liability are related to the special features of war or active hostilities, it would be wrong in my view to apply the same approach to peace keeping operations, however intrinsically dangerous.
+The ordinary principles of negligence, as illustrated by cases such as Hughes and Rigby, can when necessary be sufficiently restrictive to ensure that most such claims, whether relating to advance procurement and training, or decisions on the ground, will be doomed to failure.
+On the other hand, the pleaded claims in the present cases go further.
+It is alleged, as I understand, that there was an unjustified failure, following earlier incidents, to take readily available steps to deal with a known and preventable risk.
+I would not regard such claims as necessarily excluded as a matter of general policy, either at common law or under article 2.
+Since all the issues will now have to be considered at trial, it is unnecessary and probably undesirable for me to say more.
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+If a criminal who previously had leave to remain in this country is liable to deportation because of his offences, but cannot actually be deported because to remove him would infringe his rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms, with the result that the deportation order is revoked, what is the status of his previous leave to remain? It is common ground that the making of a deportation order renders his leave to remain invalid.
+The question in this appeal is whether, if the deportation order is revoked, his leave revives or whether the Secretary of State is at that stage free to consider afresh what leave to grant to him.
+Mr George was born in Grenada in 1984 and came to this country when 11 in 1995.
+As at March 2000 he had been granted indefinite leave to remain here.
+Since then, however, he has been convicted on seven different occasions of offences, some relatively minor but some not.
+The convictions include five counts of supplying cocaine in January 2002, for which he was sentenced to three years detention in a Young Offenders Institution, driving whilst disqualified and without insurance in December 2003, which resulted in a sentence of eight weeks detention, and, on 7 April 2005, two counts of possession of, respectively, heroin and cocaine, with intent to supply, occasioning four years imprisonment.
+On the basis of these convictions, the Secretary of State judged that his deportation would be conducive to the public good.
+In January 2007 notice was duly served on him that a deportation order was to be made.
+There ensued a series of unsuccessful attempts to challenge that decision, in the Asylum and Immigration Tribunal and the High Court, which lasted until April 2008.
+When those rights of appeal were exhausted, the Secretary of State was able actually to make the deportation order of which advance notice had been given, and that order was made on 24 April 2008.
+Mr George, however, made further application to the Secretary of State contending that to deport him would infringe his article 8 rights to respect for his private and family life.
+He has a partner whom he has known since he was at school, and although they do not and have not lived together, they have a daughter born in 2005 who sees her father reasonably often and stays with him on occasion.
+The Secretary of State took the view that, balancing this level of family life against Mr Georges convictions, his deportation would not amount to a breach of article 8, and she refused to revoke the deportation order.
+However, after a number of intermediate stages of legal process, Mr Georges immigration appeal against that last decision was allowed by the immigration judge in a ruling promulgated on 31 March 2009.
+She held that, although the case was a borderline one, the balance between the conviction history and the family life had been struck wrongly by the Secretary of State.
+It is common ground that the effect of this decision was to revoke the deportation order on the grounds that to implement it would infringe Mr Georges article 8 rights to family life.
+Subsequently, Mr Georges solicitors called on the Secretary of State to confirm that he had indefinite leave to remain, but she refused to do so.
+Instead she granted him six months discretionary leave on 2 August 2013.
+This court was told that since that expired it has been replaced with a grant of three years discretionary leave.
+It appears that the Secretary of State is treating him as she treats a number of other immigrants, and is implementing what may turn out to be a pattern of successive grants of discretionary leave to remain and which may result, if all goes well, in that leave becoming indefinite, but not until something of the order of 10 years have passed.
+His case, however, is that his original indefinite leave to remain has revived when the deportation order was revoked.
+He advanced this case by way of application for judicial review of the Secretary of States decision not to reinstate indefinite leave to remain but instead to make grants of time limited leave.
+He failed before the judge but before the Court of Appeal succeeded by a majority.
+This is the appeal of the Secretary of State from the latter decision: [2013] 1 WLR 1319.
+The statutory provisions for deportation
+The statutory trail begins with the Immigration Act 1971 (the 1971 Act).
+Although it has been amended subsequently, the relevant provisions date from its enactment and have stood (save for immaterial adjustments) for 40 years.
+By section 3 it requires that those with no specific right of entry to the United Kingdom need leave to enter, which leave may be indefinite or time limited and may be subject to conditions.
+Section 3(5) and (6), together with section 5, contain the provisions for deportation.
+First, subsections 3(5) and (6) deal with when a person is liable to deportation.
+They say: (5) A person who is not a British citizen is liable to deportation from the United Kingdom if (a) the Secretary of State deems his deportation to be conducive to the public good; or (b) another person to whose family he belongs is or has been ordered to be deported. (6) Without prejudice to the operation of subsection (5) above, a person who is not a British citizen shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so.
+Once a person is liable to deportation under these rules, one turns to section 5, which provides for the actual making of a deportation order: 5(1) Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force. (2) A deportation order against a person may at any time be revoked by a further order of the Secretary of State, and shall cease to have effect if he becomes a British citizen.
+The final stage is provided for by section 5(5) and Schedule 3, which permits the Secretary of State to give directions for removal of those against whom a deportation order is in force, which directions may stipulate such matters as the manner of removal and form of travel.
+These deportation provisions remain in force and are the ones which applied to Mr George.
+It should, however, be noted that since the passing of the UK Borders Act 2007 (the 2007 Act), the commonest source of a decision to deport a convicted person lies in the provisions of section 32 of that Act, styled automatic deportation.
+The effect of this section is that (i) a non British citizen who (inter alia) is sentenced to a term of 12 months imprisonment or more is termed a foreign criminal, (ii) as such his deportation is deemed to be conducive to the public good for the purposes of section 3(5)(a) of the 1971 Act so that he is liable to deportation, and (iii) the making of a deportation order is mandatory rather than discretionary, and irrevocable, unless specific exceptions apply, of which one is that removal would entail infringement of Convention rights.
+It follows that in Mr Georges case: i) once the Secretary of State had decided under section 3(5)(a) of the 1971 Act that his deportation would be conducive to the public good, he became liable to deportation; the notice served on him in January 2007 warned him of an impending deportation order in consequence; (ii) at that stage his indefinite leave to remain continued extant but precarious, as it did throughout the 18 months or so following, during which unsuccessful attempts were made to challenge the decision that he was liable to deportation; this is consistent with the general scheme of the immigration appeals system, under which whilst appeals are pending suitable (if varying) provision is made to preserve the position in the interim; (iii) when in April 2008 the deportation order was made under section 5(1) of the 1971 Act the consequence was that his indefinite leave to remain was invalidated under the closing words of that subsection; (iv) the immigration judges ruling in March 2009 that his article 8 rights would be infringed by deportation was made on his appeal against the refusal by the Secretary of State to revoke the deportation order; the consequence is agreed to be that the deportation order was thereby revoked; (v) he remains liable to be deported, but an order for his deportation cannot be made in his present circumstances because it would entail an infringement of his Convention rights.
+The case for revival of indefinite leave to remain
+For Mr George, the carefully crafted submissions of Mr Knafler QC that his indefinite leave to remain revived when the deportation order was revoked can conveniently be considered under 2 headings: (a) it is said that as a matter of construction, section 5(1) and (2) of the 1971 Act mean that upon revocation the position reverts to the status quo ante, viz the indefinite leave revives; it is said that the position is made clear by considering other statutes (b) in pari materia, in particular section 76 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act), section 10 of the Immigration and Asylum Act 1999 (the 1999 Act), and the automatic deportation provisions of the 2007 Act (paragraph 7 above).
+Section 5(1) & (2) of the 1971 Act
+Mr Knaflers submission is that section 5(1) prescribes three consequences of a deportation order a direction to leave, a prohibition on return and the invalidation of any existing leave to remain.
+Accordingly, he says, revocation under section 5(2) reverses all three consequences.
+This, however, does little more than assume what it seeks to prove.
+His three consequences of a deportation order are in any event of differing character; the first two require obedience by action or omission on the part of the individual, whereas the third is a statement of a legal effect.
+The wording of these two sections does not by itself provide a conclusive answer to the question of whether revocation of a deportation order operates to revive leave to remain which the making of the order invalidated.
+If anything, the wording tends to suggest that revocation operates as from the moment it occurs, that is to say is prospective rather than retrospective.
+It is from that moment onwards that the individual is no longer under an obligation to leave, and is free to return.
+Consistently with that, one might expect that the invalidation of leave which has occurred through the making of the deportation order is not undone.
+Mr Knaflers associated submission is that the words shall cease to have effect in section 5(2) govern both revocation and the different trigger of the individual becoming a British citizen.
+Even if they did, that does not help answer the question what is meant by cease to have effect, which could bear either a prospective or retrospective meaning, albeit it more strongly suggests the former.
+But in any event, it is quite clear that these words are associated only with the citizenship trigger and not with revocation.
+It makes perfectly good sense for the subsection to distinguish between them since the first depends on the act of the Secretary of State (or the Immigration Judge on appeal) whereas the latter is independent of any act of hers.
+The wording of section 5(2) may by itself be capable of bearing the meaning that revocation reverses the legal effect of the deportation order and thus revives leave to remain, but if that had been the intent, one might have anticipated the statute saying so.
+What is, however, completely clear is that it has been treated from the outset by relevant persons operating or commenting upon the Act as meaning that revocation did not undo the invalidation of leave to remain which had been achieved by section 5(1).
+The body of evidence of this is considerable.
+It includes the following. (i) Draft Immigration Rules were prepared contemporaneously with the passage through Parliament of the 1971 Act (Immigration Rules: Control after Entry (Cmnd 4610) as amended by Cmnd 4792); these were considered by both Houses prior to the completion of the Acts legislative progress; the draft rules included paragraph 58 which stated in terms: Revocation of the deportation order does not entitle the person concerned to re enter the United Kingdom; it renders him eligible to qualify for admission under the immigration rules. (ii) That provision was then repeated at paragraph 66 of the substantive Statement of Immigration Rules for Control after Entry (HC 510), which was laid before Parliament on 23 October 1972. (iii) Every subsequent Statement of Changes in Immigration Rules has contained the same proposition in identical terms, including the current one (1994) (HC 395) at paragraph 392; all have been laid before Parliament pursuant to section 3(2) of the 1971 Act, under the negative resolution procedure. (iv) Successive editions of Macdonalds Immigration Law and Practice in the United Kingdom from the first (1983) until the current 8th (2010) record this same proposition without question.
+If the wording were incapable of contrary reading, an error in its interpretation in the Rules, however long perpetuated, would not reverse its correct construction.
+But this wording is not clear.
+Moreover, the successive assumptions in the Rules about its meaning are very relevant when one comes to consider Mr Knaflers second submission, and in particular the terms of section 76 of the 2002 Act, which is the section which persuaded the majority of the Court of Appeal that he was right.
+Section 76 of the 2002 Act
+Prior to this provision indefinite leave to remain could not be removed except by a deportation order and the operation of section 5(1) of the 1971 Act.
+Section 76 gave the Secretary of State a new power to revoke a persons indefinite leave to remain, in three defined situations: (1) where a person is liable to deportation but cannot be deported for legal reasons, (2) where leave was obtained by deception such as would make the person liable to removal, but he cannot be removed for legal or practical reasons and (3) where he had, in specified circumstances, ceased to be the refugee which he previously had been.
+Section 76(1) deals with the first situation: The Secretary of State may revoke a person's indefinite leave to enter or remain in the United Kingdom if the person (a) is liable to deportation, but (b) cannot be deported for legal reasons.
+The argument which was accepted by the majority of the Court of Appeal was that this enactment, which is part of the same statutory body of immigration law as the 1971 Act, must have been passed on the assumption that it contained the only power by which such a persons leave to remain could be removed.
+Mr George and others like him are people who are liable to deportation but cannot be deported for legal reasons.
+That in turn meant, it was held, that the revocation of a deportation order in the case of such a person must have had the effect of reviving any leave to remain which he had.
+Otherwise, so the argument ran, there would be no need for section 76(1).
+It is certainly true that the two statutes are part of the same body of immigration law and should be construed consistently with one another so far as possible, although the speed and intensity of legislative change in this field undoubtedly leaves open the real possibility that not every provision is consistent with every other.
+It is also clear, and conceded by the Secretary of State, that section 76(1) would apply to Mr George.
+It does not, however, follow that there was no point in enacting section 76(1) unless revocation of a deportation order revived leave to remain.
+In the case of Mr George the legal bar to his deportation was only upheld after the deportation order had been made.
+But there will be many others who cannot be deported for similar legal reasons but in whose case this is apparent from the moment when they became liable to deportation.
+There may be many convicted persons who would be deported but for obvious Convention rights bars, perhaps because the conditions in the home country would infringe article 3, or because the convict has very long standing and strong article 8 rights.
+The legal bar to deportation may be recognised without dispute by the Secretary of State.
+In such a case, section 76(1) adds the power, which otherwise did not exist, to revoke indefinite leave to remain.
+The case for the existence of such a power is clear.
+A human rights claim may well prevent actual deportation, but the individual concerned is, by definition, a person whose presence is no longer conducive to the public good.
+If a deportation order cannot be made, it may make good sense to alter his status from indefinite leave to remain to limited or, more likely, conditional leave, which may give scope for control of his activities in the public interest.
+Although the 2007 Act was not in existence when section 76 was enacted, its scheme for automatic deportation provides another example of a case when section 76 would be available without there being any deportation order to be revoked.
+If the Secretary of State determines that section 32(5) of the 2007 Act applies to render an individual liable to deportation, it is not the making of a deportation order but the antecedent decision that the provisions of the Act apply which is appealable: see section 82(3A) of the 2002 Act, inserted by section 35(3) of the 2007 Act.
+So, if challenge were made to that decision, and were upheld on human rights grounds, there would be no deportation order to be revoked, but the individuals indefinite leave to remain could be removed and replaced with a different kind of leave by acting under section 76.
+A second powerful reason for rejecting the argument based upon section 76, perhaps not fully ventilated before the Court of Appeal, lies in the history set out at paragraph 12 above.
+The whole basis of the decision of the Court of Appeal was that section 76 demonstrates that Parliament assumed that the effect of section 5 of the 1971 Act was to revive leave to remain if a deportation order was revoked.
+But the history demonstrates that Parliament cannot have done so; on the contrary, the assumption at the time was the opposite.
+A third reason was identified by Stanley Burnton LJ, dissenting in the Court of Appeal.
+Quite apart from the case of the individual who remains in the United Kingdom and cannot be deported for legal reasons, he considered that there may be other situations in which revocation of a deportation order is appropriate.
+One suggested case is where a person has been successfully deported and applies subsequently for limited leave to make a brief visit, perhaps to relatives, and perhaps in circumstances where it is appropriate to grant the application on compassionate grounds.
+Such a person could not simply return, because the deportation order under which he was removed would prevent it.
+The Secretary of State would need to revoke the deportation order and make a fresh grant of limited or conditional leave.
+She could not use section 76 to do this, because such a person would not be someone who could not be deported for legal reasons.
+Stanley Burnton LJ reasoned that Parliament could not have intended that in such a situation the revocation of the deportation order would have the effect of reviving an indefinite leave to remain.
+This scenario gave rise to a complex debate as to whether there exist other powers by which the Secretary of State might achieve the same end, in particular by invoking article 13(7) of the Immigration (Leave to Enter and Remain) Order 2000 (SI 2000/1161) (the 2000 Order).
+This Order first preserved leave which would otherwise have been treated under section 3(4) of the 1971 Act as lapsed by reason of travel outside the common travel area, and then created by article 13(7) a discretionary power to cancel it when it was only in force because thus preserved.
+It is possible that this power might now be used in the scenario contemplated by Stanley Burnton LJ, although only if paragraph 321A of the Immigration Rules were first amended, for that rule presently restricts the use of article 13(7) to specific situations which do not include this scenario.
+But what matters is what section 5(2) of the 1971 Act meant when it was enacted.
+At that time the 2000 Order had not seen the light of day and there could be no question of applying article 13(7).
+The law was, under section 3(4) of the same 1971 Act, that: A person's leave to enter or remain in the United Kingdom shall lapse on his going to a country or territory outside the common travel area (whether or not he lands there), unless within the period for which he had leave he returns to the United Kingdom in circumstances in which he is not required to obtain leave to enter; but, if he does so return, his previous leave (and any limitation on it or conditions attached to it) shall continue to apply.
+This provision cannot be read, in the context of the 1971 Act where it appears, as applying to a person deported under section 5.
+If it did, there would be no need for section 5(1) to make any provision at all for the deportation order to invalidate the leave to remain.
+Nor, even if the effect of section 5(2) is to revive a former leave to remain if a deportation order is revoked, could this section bite at removal under the order since the formerly existing leave would at that stage be invalidated by section 5(1) and there would be nothing to lapse.
+It may be uncertain how much Stanley Burnton LJs scenario was in anyones mind at the time of the passing of the 1971 Act, so its impact on the construction question which arises in this case is perhaps limited.
+But the possibility that the Secretary of State might wish to revoke a deportation order of someone, either present in the United Kingdom or not, and to replace it with limited or conditional leave, must have existed then as well as now, irrespective of any question of Convention rights obstructing removal.
+This part of the reasoning of Stanley Burnton LJ therefore does provide some limited additional support for the argument that section 5(2) should not be read as meaning that on revocation of a deportation order any formerly held leave to remain revives.
+In the Court of Appeal, Sir Stephen Sedley observed at para 32 that if section 76 was the only route available to the Secretary of State to remove leave to remain in the circumstances of a case such as the present, that would mean that the individual would have a right of appeal (under section 82 of the 2002 Act).
+Whilst that is correct, it cannot assist on the meaning of section 5(2) as at 1971 since section 76 did not then exist.
+Nor does the prospect of such a right of appeal fortify the case for such as Mr George.
+Anyone faced with a deportation order already has ample right of appeal and against an order which will invalidate his leave to remain as the history of this case illustrates.
+There is no occasion for a legitimate claim to a further appeal.
+Sir Stephen also observed at para 32 that if the Secretary of State was right, a person such as Mr George would be left in limbo, being irremovable yet having no leave to remain.
+That also does not assist.
+The Secretary of State accepts that some leave must be granted if removal is impossible, and has in fact made such grants to Mr George.
+In any event, there would equally be a limbo if the powers under section 76 were exercised.
+For these reasons, the argument from section 76 does not avail Mr George.
+Section 10 of the 1999 Act
+Section 10 gives the Secretary of State power to direct summary removal of specific categories of people where, essentially, their leave to remain is seriously flawed.
+The two principal categories are those who have failed to observe a condition of their leave (who accordingly are outside the leave granted) and those who obtained it by deception.
+The other two categories are those whose position is as a dependent family member of someone being removed under this same section and those who have ceased to be refugees within the meaning of section 76(3) of the 2002 Act (supra at paragraph 13).
+The effect of removal directions is, by section 10(8) (as substituted by section 48 of the Immigration, Asylum and Nationality Act 2006), to invalidate the leave to remain.
+Thus the language employed mirrors that of section 5(1) of the 1971 Act.
+Mr Knafler contends that in this section a withdrawal or revocation of the removal directions would clearly revive the leave to remain and that accordingly the same must apply to revocation of a deportation order under section 5 of the 1971 Act.
+The precise meaning of section 10(8) is not before this court and it would be wrong to attempt to decide it in the absence of facts raising the issue.
+Much might depend on the circumstances of any withdrawal and what if any alternative step the Secretary of State attempted or purported to take.
+But it should not be assumed either that the effect of the section is that withdrawal of the removal directions would reinstate the leave to remain, unaltered, or that, if it would, the same was the rule created 28 years earlier by section 5 of the 1971 Act for the different situation of a deportation order made because the presence of the individual is not conducive to the public good.
+The appeal rights of those affected by section 10 summary removal directions and those facing deportation are quite different.
+In any event, it is unsafe to reason from a different regime enacted 28 years afterwards to the meaning of the 1971 Act.
+Automatic deportation under the 2007 Act
+Mr Knafler suggests that unless section 5(2) of the 1971 Act involves revival if the deportation order is revoked, a person who successfully appeals automatic deportation will still have his leave to remain invalidated; hence, he submits, section 5(2) must involve revival.
+The argument runs as follows. (A) In a non automatic case an appeal against a decision (under section 3(5) of the 1971 Act) that a persons deportation is conducive to the public good, and thus that a deportation order will follow, is appealable under section 82(2)(j) of the 2002 Act and whilst the appeal is pending no deportation order can be made: see section 79(1) of that Act; (B) when the 2007 Act scheme was introduced the decision which was made appealable is not the making of the deportation order but the antecedent decision that the individual is caught by the automatic deportation rules: section 82(3A) of the 2002 Act, as introduced by section 35 of the 2007 Act; (C) at the same time section 79 of the 2002 Act was modified by the introduction of subsections (3) and (4) which provide that the usual prohibition on making a deportation order whilst an appeal is pending does not apply but that during that time there is an exception to the rule under section 5(1) of the 1971 Act that it invalidates the leave to remain; (D) therefore it is possible that the individual could succeed in his appeal, establish that he is not caught by the automatic deportation rules, but yet there may be a deportation order which will have the effect, once the appeal is over and no longer pending, of invalidating his leave to remain.
+This may or may not be a possible scenario.
+The import of the 2007 Act needs to be resolved on facts arising from it and not hypothetically on a case to which it has no application.
+That the legislation is not as a whole entirely cohesive is demonstrated by the fact that in a non automatic case, the appeal may be against either the decision to make a deportation order or against a refusal to revoke the order itself if matters have advanced that far; the appealable decisions are described in section 82(2)(j) and (k).
+If the postulated automatic deportation case is a possible scenario, it would not of course apply except where (a) a deportation order was made, as it need not be, and (b) the effect of a successful appeal is to induce its revocation.
+There are, in any event, very limited grounds on which an appeal against automatic deportation of a foreign criminal can be mounted.
+The principal ones in practice may well be that Convention rights prevent deportation (exception 1 pursuant to section 33(2) of the 2007 Act).
+It is not necessarily anomalous or wrong that a foreign criminal who would be deported but for a Convention bar should have his indefinite leave to remain invalidated and that the Secretary of State should be able to regulate his status in this country by means of limited or conditional leave (see below).
+It is not possible to reason from a single suggested scenario under an Act of 2007 to the true meaning of a statute passed 36 years earlier.
+Conclusion
+The terms of section 5 of the 1971 Act are, as words, capable either of importing revival of leave or of not doing so.
+Revival is not their natural meaning, because the natural meaning is that revocation takes effect when it happens and does not undo events occurring during the lifetime of the deportation order.
+Revival is a significant and far reaching legal concept, and it is much more likely that it would have been specifically provided for if it had been intended.
+The reasoning of the Court of Appeal, from section 76 of the 2002 Act, cannot be supported.
+Whilst statutes in pari materia should be construed consistently if possible, a later statute is not a reliable guide to the meaning of an earlier one, especially in a field such as immigration where social and political pressures have led to fast moving changes in the legislation.
+In particular, the history of the treatment of section 5(2) of the 1971 Act in successive rules laid before Parliament both before and ever since the 1971 Act was passed shows very plainly that there cannot have been a legislative assumption that revival was its effect.
+The contrary construction, involving no question of revival, is entirely consistent with the scheme of the 1971 Act (and indeed subsequent statutes) on the topic of deportation.
+The position of Mr George is not analogous to someone with a pending appeal.
+His status as a person liable to deportation has long since been established; his appeal challenging it failed long ago.
+Persons are liable to be deported, under any of the procedures which may apply, because their presence in the United Kingdom is judged not to be conducive to the public good.
+That is true of Mr George.
+If it turns out that there is a legal obstacle to actual removal, for example because of Convention rights which cannot be infringed, that does not alter the fact he is a person whose presence is not conducive to the public good.
+There is no legal symmetry in indefinite leave to remain co existing with the status of someone whose presence is not conducive to the public good.
+It makes perfectly good sense, whilst the legal obstacle remains, for the Secretary of State to be in a position to re visit the terms of leave to enter.
+Moreover, the legal obstacle is not necessarily, or even usually, permanent.
+If it arises from conditions in the individuals home country, those conditions may change or he may come into favour with the authorities when previously he was not.
+If it arises from his family connections in the United Kingdom, those may easily change.
+If someone in his position cannot at present be deported because to do so would infringe his article 8 rights, and if indefinite leave to remain were thereupon to revive, he would remain irremovable if he turned his back on his family, or they on him, as may not infrequently occur.
+Whilst there may be different routes by which the Secretary of State could now achieve a similar result, for example via section 76 of the 2002 Act, it is clear that this was also the coherent result of the 1971 Act, from the time that it was enacted.
+On its correct construction, section 5(2) of the 1971 Act does not mean that if the deportation order is revoked, the invalidation by section 5(1) of leave to remain is retrospectively undone and the previous leave to remain does not revive.
+Mr George remains liable to deportation, even though it cannot at present be carried out.
+His position in the United Kingdom must be regularised, but that does not entail a recognition of indefinite leave to remain.
+The Secretary of States grant to him of successive limited leaves is perfectly proper.
+Whether or not it may become appropriate after the passage of time to re grant indefinite leave is a matter for her.
+For those reasons, the appeal of the Secretary of State should be allowed and the order of the judge dismissing the claim for judicial review should be reinstated.
diff --git a/UK-Abs/test-data/judgement/uksc-2013-0006.txt b/UK-Abs/test-data/judgement/uksc-2013-0006.txt
new file mode 100644
index 0000000000000000000000000000000000000000..c8682770885c01989872f16e259b6ac5ed3171e4
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@@ -0,0 +1,526 @@
+The contest in this case is about who should bear the costs and expenses of a receiver appointed under an order which ought not to have been made.
+The appellant, who is a former partner in a well known firm of accountants, was appointed to act as management receiver of the assets of a group of companies referred to as Eastenders (the companies) on the application of the Crown Prosecution Service (CPS).
+The order was made under section 48 of the Proceeds of Crime Act 2002 (POCA) but was quashed on appeal.
+The receivers costs and expenses are put at 772,547.
+Who should bear those costs? There are three possible answers: the companies, the receiver or the CPS.
+The question has been considered by four judges who have arrived at three different answers.
+The receiver applied to the Crown Court, after the order had been quashed,
+for permission to draw his remuneration and expenses from the assets of the companies.
+The application was refused by Underhill J (now Underhill LJ) in a judgment given on 4 April 2012.
+He held that to grant the application would infringe the companies rights under article 1 of the First Protocol to the European Convention on Human Rights (A1P1).
+This provides: Every natural or legal person is entitled to the peaceful enjoyment of his possessions.
+No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
+The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
+In his judgment Underhill J held that in principle the liability for the receivers remuneration and expenses should be borne by the CPS, but at that stage there was no such application before him.
+After a further hearing on 8 May 2012 he made an order including the following terms: i) The CPS was to pay the receivers remuneration and disbursements, subject to an assessment by the taxing authority of the Crown Court under the Criminal Procedure Rules. ii) The CPS was to pay the legal costs incurred by the receiver in the exercise of his functions as receiver. iii) The parties were to lodge further evidence and submissions as to whether sums previously retained by the receiver should be repaid to the companies. (There is a potential argument that some of the expenses incurred by the receiver in the course of running the companies would have been incurred by them in any event, but on this appeal the court has not been concerned with points of that kind.) iv) The CPS was to pay the companies litigation costs in respect of the various applications relating to the receivership order.
+In making that order Underhill J held that it was possible to interpret POCA as giving the court the right, in circumstances such as those of the present case, to order that the receivers remuneration and expenses be paid by the CPS and not by the companies.
+The CPS appealed to the Court of Appeal Criminal Division.
+The majority
+(Mitting and Edwards Stuart JJ) upheld Underhill Js decision that the companies rights under A1P1 would be infringed by an order permitting the receivers costs and expenses to be taken out of their assets.
+Laws LJ, dissenting, would have held that there was no such breach and that the receiver was entitled to recover those costs out of the companies assets under the order made in the Crown Court.
+The court was unanimous that Underhill J was wrong in deciding that POCA could be interpreted as giving him power to order the CPS to pay the receivers costs.
+The result of the majoritys decision was to leave the receiver unable to
+recover his costs either from the companies assets or from the CPS.
+They acknowledged that the outcome of the appeal would be clearly unsatisfactory to a receiver who has undertaken work and incurred expenses in the expectation that he would be both rewarded and recompensed out of assets identified for him by the CPS, and they added that their judgment did not exclude the possibility that he may have a common law remedy against those who sought his appointment, but they said no more about what it might be, presumably because the matter had not been argued.
+The receiver now appeals to this court.
+The principal argument advanced on his behalf by Mr David Perry QC was that Laws LJ was right and that the costs of the receivership should be borne by the companies.
+If that submission was rejected, his alternative submission was that Underhill J was correct to order that the costs be borne by the CPS.
+Mr Perry submitted powerfully that it could not be a just solution that the receiver, an officer appointed by the court, should be left without payment for acting as the court directed.
+Mr Geraint Jones QC submitted on behalf of the companies that those
+judges (Underhill, Mitting and Edwards Stuart JJ) who had concluded that to take the receivers costs out of the companies assets would be a breach of their rights under A1P1 were right.
+He also suggested that it was highly arguable that the contractual arrangements between the receiver and the CPS would entitle the receiver to remuneration by the CPS, but that was a matter between the receiver and the CPS.
+Mr Michael Parroy QC on behalf of the CPS joined forces with Mr Perry in arguing that Laws LJ was right.
+If, however, the effect of A1P1 was to preclude recovery of the receivers costs out of the companies assets, Mr Parroy submitted that the Court of Appeal was right in its unanimous decision that POCA did not afford any basis for holding the CPS liable to the receiver.
+He also submitted that there was no substance in the argument that the receiver would have a contractual remedy against the CPS.
+Issues
+The first question is whether the companies rights under A1P1 would be infringed by having their assets taken to pay the receivers remuneration and expenses.
+If Laws LJ was right in his view that this would not involve an infringement of their A1P1 rights, no further question arises.
+But if the companies are right about that issue, the second question that arises is whether the receiver is entitled to look to the CPS for reimbursement.
+When granting permission to appeal to this court, the leave panel asked the parties to address the additional issue whether there are any powers which could be exercised to prevent this situation arising whatever the outcome of the appeal.
+It will be necessary to consider that too.
+On 6 December 2010 the CPS applied ex parte to HH Judge Hawkins QC at the Central Criminal Court for restraint and receivership orders under sections 41 and 48 of POCA.
+The judge was in the course of trying a murder case and his time for hearing the application was limited.
+After a 40 minute hearing the judge signed the orders which he was asked to make.
+The evidence before the judge consisted of two witness statements made by Mr Alan Brown, a financial investigator employed by HM Revenue & Customs (HMRC), and their exhibits.
+In summary, he stated that HMRC was conducting a covert investigation into the activities of a serious organised criminal group which was believed to be responsible for evading excise duty and VAT on a large scale and laundering the proceeds.
+The suspected fraud involved alcohol products, which had been imported into the UK duty free, being released from bonded warehouses into the UK market without payment of duty in such a way that the true facts were concealed from HMRC by the use of buffer companies and bogus documents.
+The subjects under investigation included Mr Alexander Windsor and Mr Kulwant Singh Hare, referred to as the defendants in Mr Browns statements.
+Company searches and other records showed that the defendants were the joint beneficial owners of the Eastenders Group parent company, which held between 50% and 100% of the shares in the other group companies.
+The parent company was a holding company and the trading companies were cash and carry outlets.
+Mr Brown suggested that the companies were a wholesale and retail arm of the criminal group responsible for the alleged fraud.
+Mr Brown described the case as the most complex restraint and receivership case that he had ever managed in more than 20 years experience of such work.
+He estimated the public loss at 23 million.
+Mr Brown invited the court to lift the corporate veil of the companies, to treat their assets as assets in which the defendants had an interest and to restrain them and the companies from dealing with those assets.
+He also asked the court to appoint a management receiver to run the companies.
+He described their activities in this way: It is through these companies that the non duty and non VAT paid alcohol is sold onto the legitimate market.
+It is probable that these companies also conduct legitimate trade, in the sense that they buy and sell duty and VAT paid goods as well.
+However I do not know the ratio of legitimate to illegitimate activity.
+In these circumstances Mr Brown invited the court to conclude that a receivership order would be the only effective means of ensuring that the defendants assets could be properly managed.
+Terms for the receivers appointment had been agreed with the receiver in correspondence which was exhibited to Mr Browns statements.
+He said that he was unable to give a realistic estimate of the likely costs of the receivership, having regard to the nature of the assets involved.
+The judge made orders in relation to each defendant.
+They were in materially identical terms and I will refer to them as a single order.
+The order restrained the defendant from disposing of, dealing with or diminishing the value of any of his assets, which were expressed to include the assets of the companies.
+It imposed a similar direct restraint on the companies, and it appointed the receiver to act as management receiver of all the assets and property identified in the order, including the business and undertakings of the companies.
+The imposition of the restraint and receivership order on the companies necessarily depended on the court having proper reason to regard the assets of the companies as the personal assets of the defendants.
+The order gave the receiver a wide range of standard powers, including the power to realise so much of the receivership property as is necessary to meet the receivers remuneration and expenses.
+As to his remuneration and expenses, the order provided: The remuneration and expenses of the Receiver shall be paid out of the Receivership Property and in accordance with the letter of agreement as exhibited to the witness statement of Alan Brown made on 3 December 2010.
+The letter referred to was a letter from the CPS to the receiver dated 29 November 2010.
+Under the heading Re Kulwant Singh Hare and Alexander Thomas Windsor the letter began: We are writing to enquire whether you would be prepared to act as a management receiver pursuant to section 48 of the Proceeds of Crime Act 2010 in the above case of which the Crown Prosecution Service has conduct.
+You will appreciate that your appointment is dependent on an order being made by the Crown Court.
+This letter sets out the terms upon which we propose to seek your appointment.
+These terms will form part of the order for your appointment.
+In addition, your appointment is subject to the Framework Agreement between the Crown Prosecution Service and the panel of approved receivers, to the provisions of Part 60 of the Criminal Procedure Rules and to the Capewell Guidelines laid down by the Court of Appeal in Capewell v Customs & Excise Commissioners [2005] 1 All ER 900.
+In a brief summary of the background the letter explained that HMRC was
+conducting an investigation into the commission of offences by the named defendants involving the evasion of VAT and excise duty on a massive scale.
+The letter said: It is alleged that much of the fraudulent activity has been facilitated through a company known as Eastenders Cash and Carry plc and various subsidiary companies in Slough, Barking, Croydon, Birmingham and Coventry.
+Clearly, the effective management of these companies and their stock is an urgent priority if you are appointedThe extent to which the companies can be allowed to be allowed to continue trading will clearly be of fundamental importancegiven the urgent necessity to prevent any further fraudulent trading and loss to the Exchequer.
+The letter set out proposed terms of the appointment, including the
+following term as to the receivers remuneration: Your remuneration costs and expenses are to be drawn from the assets of the defendants under your management in accordance with section 49(2)(d) of the Proceeds of Crime Act and the decision of the House of Lords in Capewell v HM Revenue & Customs [2007] UKHL 2.
+You are reminded that you will have a lien over the defendants assets for payment of your fees and that the Crown Prosecution Service does not undertake to indemnify you in relation to your fees in the event that there are insufficient assets within the defendants estate.
+Your remuneration, costs and expenses are to be paid in accordance with the Framework Agreement referred to above and any deviation must be agreed in writing with the Crown Prosecution Service.
+Clause 12.5 of the Framework Agreement provided: In the case of Management and Enforcement Receivers in criminal confiscation cases, the Receiver will be remunerated from the sums that they may realise from the sale of the assets over which they are appointed [subject to an immaterial exception].
+To the extent [that] there is any shortfall, the Contracting Bodies will not agree to grant indemnities either in full or in part.
+Although the receivership order covered all assets of the defendants, including properties and money in bank accounts, its central purpose was to put the companies under the control of the receiver.
+But for the fact that the companies were trading entities, there would have been no need for a receivership order.
+The restraint order would have been sufficient to freeze the defendants bank accounts and to prevent any disposal of their personal properties.
+The companies had around 120 employees and an aggregate turnover in the region of 150 million.
+In order to comply with section 49(8) of POCA (set out below), the order provided that the receivers powers of management, and power to realise property to meet his remuneration and expenses, were not to be exercised until further order of the court.
+This was in order to give the companies a reasonable opportunity to make representations.
+The matter was further considered by the judge in a brief hearing, on 14 December 2010 at the end of his normal sitting day.
+On the eve of that hearing the companies put in substantial evidence, but the court did not have time to consider the merits or hear detailed argument.
+The judge activated the receivers powers.
+It was then the busiest time of the trading year, only 11 days before Christmas.
+The judge activated the receivers management powers in order that their continued trading should be under the receivers control.
+The judge considered the companies objections to the receivership order on 23 December 2010 at an inter partes hearing but refused to discharge it.
+The matter came before the Court of Appeal (Hooper LJ, Openshaw J and Sir Geoffrey Grigson) on 25 January 2011.
+According to the judgment delivered by Hooper LJ, the appeal occupied the time of the court for 1 days following 2 days preparation for the hearing.
+The court quashed the restraint and receivership orders but took time for the delivery of its reasons in a judgment handed down on 8 February 2011 (neutral citation [2011] EWCA Crim 143).
+The case is reported in abbreviated form at [2011] 1 WLR 159 but in full at [2011] 2 Cr App R 71.
+The court expressed considerable sympathy for the judge who had been given responsibility to decide at short notice whether to grant restraint and receivership orders at a time when he was occupied with the conduct of a complex jury trial.
+Having had a much better opportunity to analyse the evidence, it considered that Mr Browns statements consisted largely of broad and unsupported assertions.
+Careful analysis of the evidence in the appendices to his statement about particular transactions exposed serious gaps.
+The court held that the judge had been wrong on 6 December to find on the material before him that there was reasonable cause to believe that the defendants had benefited from the alleged criminal conduct.
+It postponed the drawing up of a final order in relation to the defendants (as distinct from the companies) in order to give the CPS an opportunity to adduce further evidence.
+The CPS subsequently made a renewed application to Mackay J, which he refused.
+As to the companies, the Court of Appeal held that there was no good arguable case for regarding their assets as the assets of the defendants and it quashed the order in so far as it affected the companies with immediate effect.
+In his judgment refusing to discharge the order, the judge had concluded that there was a good arguable case that the defendants had attempted to shelter behind a corporate faade, or veil, to hide their crimes and their benefits from it; and that the business structures constituted a device, or cloak or sham intended to disguise the true nature of what was going on.
+The Court of Appeal referred to Mr Browns statement that it was probable that the companies conducted legitimate trade and that he did not know the ratio of legitimate to illegitimate activity.
+It observed that by the time of the application to set aside a good deal of evidence had been filed by the companies, from which they asserted that 95% of the business was demonstrably legitimate, and HMRC had been driven to concede that they were not in a position to dispute this.
+The court concluded that on the material before the judge, at the time of the ex parte hearing, there may have been some force in the argument put forward by the CPS; but that on the application to discharge the orders there was insufficient evidence to support the judges conclusion that there was reasonable cause to believe that the companies were just a front, sham or device behind which the defendants were sheltering in order to conceal fraud.
+The court said that, on the contrary, the evidence before it suggested that the vast bulk of the companies business was legitimate.
+That evidence was before the court at the time when the judge made his order on 14 December activating the receivers management powers, although the judge had not then had the opportunity of digesting it.
+The effective period of the receivership therefore lasted from 14 December 2010 (when the receivers management powers were activated) to 26 January 2011 (when the order was set aside by the Court of Appeal).
+A witness statement by the receivers solicitor explains in broad outline how the sum claimed by the receiver is made up.
+The largest items were 248,220 for chargeable time recorded and 229,399 for providing manned security at the companies sites.
+The reason for the latter figure being so large was that the receiver had information that many of the operatives at the sites were either unlicensed workers from overseas (some with criminal records) or had family connections to the defendants.
+The receiver therefore instructed professional security staff to protect the sites and the stock.
+A further significant item was the cost of the receiver obtaining legal advice and representation.
+This amounted to 143,044.
+It included counsels fees for appearance at the hearings before the judge on 14 and 23 December 2010 and at the hearing before the Court of Appeal.
+On the hearing of the present appeal the court was informed that no criminal charges had yet been brought in connection with the investigation but that the investigation is continuing.
+Statutory Framework
+The purpose of POCA is to prevent criminals form benefiting from their criminal conduct.
+The Act provides various means for achieving this aim.
+Part 2 provides a scheme for making confiscation orders in criminal proceedings.
+Sections 40 to 49 make provision for protective measures by way of restraint orders and receivership orders in order to preserve the realisable assets of a defendant or prospective defendant against whom there is a reasonable likelihood of a confiscation order being made.
+The conditions for making a restraint order are set out in section 40.
+Among other things, the court must be satisfied that there is reasonable cause to believe that the alleged defendant has benefited from his criminal conduct.
+It is not necessary that criminal proceedings should have been instituted, but a criminal investigation must have begun.
+If the necessary conditions are satisfied, the court may make an order under section 41 prohibiting any specified person from dealing with any realisable property held by him.
+Realisable property is defined in section 83 as any free property held by the defendant (or by the recipient of a tainted gift).
+Under section 82, property is free for this purpose unless it is already the subject of a forfeiture or deprivation order made under another statute such as the Terrorism Act 2000.
+A restraint order may be made subject to exceptions and the court may make such other order as it believes is appropriate for the purpose of ensuring that the restraint order is effective.
+A disclosure order is a common example.
+Section 42 provides for applications to vary or discharge a restraint order, and section 43 provides for an appeal to the Court of Appeal by a person affected by the decision on such an application.
+As a supplement to a restraint order, section 48(2) provides that the Crown Court may appoint a receiver in respect of any realisable property to which the restraint order applies.
+Since the appointment of a management receiver is by its nature an interim measure before any criminal proceedings have been determined, when appointing a receiver under section 48 the court does not have to make a final determination that the relevant property is realisable property within the meaning of the Act.
+It is enough that on the documents a good arguable case arises for treating the relevant assets as the realisable property of the defendant: Crown Prosecution Service v Compton [2002] EWCA Civ 1720.
+Section 49 provides so far as material: 1) If the court appoints a receiver under section 48 it may act under this section on the application of the person who applied for the restraint order. 2) The court may by order confer on the receiver the following powers in relation to any realisable property to which the restraint order applies a) power to take possession of the property; b) power to manage or otherwise deal with the property; c) power to start, carry on or defend any legal proceedings in respect of the property; d) power to realise so much of the property as is necessary to meet the receivers remuneration and expenses. 4) The court may by order authorise the receiver to do any of the following for the purpose of the exercise of his functions a) hold property; b) enter into contracts; c) sue and be sued; d) employ agents; e) execute powers of attorney, deeds or other instruments; f) take any other steps the court thinks appropriate. 5) The court may order any person who has possession of realisable property to which the restraint order applies to give possession of it to the receiver. 8) The court must not a) b) confer the power mentioned in subsection (2) (b) or (d) in respect of property, or exercise the power conferred on it by subsection (6) in respect of property. unless it gives persons holding interests in the property a reasonable opportunity to make representations to it. 9) The court may order that a power conferred by an order under this section is subject to such conditions and exceptions as it specifies.
+Section 61 provides: If a receiver appointed under section 48 a) takes action in relation to property which is not realisable property, b) would be entitled to take the action if it were realisable property, and c) believes on reasonable grounds that he is entitled to take the action, he is not liable to any person in respect of any loss or damage resulting from the action, except so far as the loss or damage is caused by his negligence.
+Section 63 provides that any person affected by a receivership order may
+apply to the Crown Court to vary or discharge the order.
+Section 65 provides for appeal to the Court of Appeal against decisions under various sections including 48, 49 and 63.
+Section 66 provides: (1) An appeal lies to the Supreme Court from a decision of the Court of Appeal on an appeal under section 65. (2) An appeal under this section lies at the instance of any person who was a party to the proceedings before the Court of Appeal. (3) On an appeal under this section the Supreme Court may i. confirm the decision of the Court of Appeal, or ii. make such order as it believes is appropriate.
+Section 72 gives power to the Crown Court to order payment of such compensation as it believes is just in cases where an order has been made under the part of the Act which includes receivership orders, but there are a number of conditions.
+There must have been serious default by, among others, a member of the CPS.
+The default must have been such that the investigation would not have continued if it had not occurred (or, where criminal proceedings were instituted, that the proceedings would not have started or continued).
+Moreover, under section 72(6) the application must be made by a person who held realisable property and has suffered loss in consequence of something done in relation to it by or in pursuance of the order.
+Section 72(6) presents a drafting problem because section 83 confines the meaning of realisable property to property of the defendant or a tainted gift.
+If construed literally, it would therefore not extend to property of a third party which was wrongly made the subject of a receivership order.
+This could present an obstacle for a person in the position of the companies in this case, but it is not necessary to try to resolve that problem for present purposes.
+The Act does not contain any provisions about the application of funds obtained by a management receiver (other than section 49(2)(d) which empowers the court to give power to the receiver to realise so much of the property as is necessary to meet his remuneration and expenses), but that is explicable because of the interim nature of a management receivership.
+The task of the management receiver is essentially to hold and protect the assets.
+Where criminal proceedings result in the making of a confiscation order, the court may appoint an enforcement receiver under section 50.
+For collection purposes, a confiscation order is treated in the same way as a fine; payment is made thorough the magistrates court.
+Section 55 contains provisions about how the justices chief executive is to deal with sums received on account of the amount payable under a confiscation order.
+They must be applied first in the payment of expenses properly payable to an insolvency practitioner and next in the payment of the remuneration and expenses of a receiver appointed under section 48, to the extent that they have not been met by the exercise of a power conferred under section 49(2)(d) (that is, to the extent that they have not been met by the receiver selling assets in order to meet his own remuneration and expenses).
+Under analogous provisions of the Criminal Justice Act 1988, which POCA replaced, section 88(2) contained a long stop provision in the following terms: Any amount due in respect of the remuneration and expenses of a receiver so appointed shall, if no sum is available to be applied in payment of it under section 81 (5) above, be paid by the prosecutor or, in a case where proceedings for an offence to which this Part of this Act applies are not instituted, by the person on whose application the receiver was appointed.
+By contrast, POCA contains no provision for payment of the receivers remuneration and expenses by the prosecutor or applicant for the receivership order.
+The Criminal Procedure Rules include a part dealing with receivership orders.
+Rule 60.6 provides: (1) This rule applies where the Crown Court appoints a receiver under section 48 or 50 of the Proceeds of Crime Act 2002 (2) The receiver may only charge for his services if the Crown Court a) b) so directs; and specifies the basis on which the receiver is to be remunerated. (4) The Crown Court may refer the determination of a receivers remuneration to be ascertained by the taxing authority of the Crown Court (5) A receiver appointed under section 48 of the 2002 Act is to receive his remuneration by realising property in respect of which he is appointed, in accordance with section 49(2)(d) of the 2002 Act. (6) A receiver appointed under section 50 of the 2002 Act is to receive his remuneration by applying to the magistrates court officer for payment under section 55(4)(b) of the 2002 Act.
+Domestic Case Law
+At common law it is an established general principle of receivership that a court appointed receiver is entitled to look for payment of his proper expenses and remuneration to the assets placed by the court in his control, and that the receiver has a lien over these assets for that purpose.
+It is also established that this principle applies as much to a receiver appointed under a statutory scheme as to any other court appointed receiver, unless the statute otherwise provides: Capewell v Revenue and Customs Commissioners [2007] UKHL 2, [2007] 1 WLR 386, especially paras 18 21.
+This is the first case in which this court has had to consider the compatibility of the application of that general principle with A1P1, in circumstances where the relevant assets were not the property of the defendant (or prospective defendant) and ought never to have been put into the hands of the receiver.
+In In re Andrews [1999] 1 WLR 1236 a father and son were prosecuted for VAT fraud.
+In the course of the proceedings restraint and receivership orders were made against them under the Criminal Justice Act 1988.
+The son was convicted but the father was acquitted.
+The receiver used some of the proceeds of the fathers assets to cover his legal costs and expenses.
+The father claimed to recover this sum from the receiver by way of costs but, as Aldous LJ observed, the claim was really a claim for compensation dressed up as an application for an award of costs.
+The Court of Appeal held that the receiver was entitled to charge his costs and expenses against the assets in receivership but added that no argument had been addressed to the court about possible breach of A1P1.
+An argument based on A1P1 was raised in Hughes v Customs & Excise Commissioners [2002] EWCA Civ 734, [2003] 1 WLR 177.
+Nicholas Hughes was charged with VAT fraud.
+Nicholas was the joint owner of a company with his brother Timothy, each holding 50% of the shares.
+Timothy was never charged.
+A restraint and receivership order was made against Nicholas, preventing the company from dealing in any way with its assets.
+Nicholas was acquitted but the assets of the company were used to meet the receivers costs and expenses.
+The Court of Appeal held that there was no breach of A1P1.
+Simon Brown LJ said: 55.
+I entirely accept that an acquitted (or indeed unconvicted) defendant must for these purposes be treated as an innocent person I cannot accept, however, that for this reason it must be regarded as disproportionate, still less arbitrary (another contention advanced by the respondents), to leave the defendant, against whom restraint and receivership orders have been made, uncompensated for such loss as they may have caused him unless, of course, by establishing some serious fault on the prosecutors part he can bring himself within the strict requirements of section 89. 56.
+It is common ground that acquitted defendants are not, save in the most exceptional circumstances, entitled to compensation for being deprived of their liberty whilst on remand or indeed for any other heads of loss suffered through being prosecuted.
+In my judgment it is no more unfair, disproportionate or arbitrary that they should be uncompensated too for any adverse effects that restraint and receivership orders may have had upon their assets.
+As to the position of Timothy, Simon Brown LJ said at para 58 that the court should be astute, wherever possible, to protect the rights and interests of third parties, but that it was difficult to regard this legislation as riding roughshod over the rights of innocent third parties.
+In that case Timothys interest in the company was inextricably tied up with that of his brother and there was no suggestion that the order was not properly made.
+Hughes was cited with approval in Capewell, but not on this point because in Capewell there was no argument about A1P1.
+In Capewell, a receivership order was properly made against the defendant under section 77(8) of the Criminal Justice Act 1988.
+The known assets of the defendant comprised some properties, some cars, some bank accounts and an unincorporated financial services business.
+The order provided for the receivers remuneration and expenses to be taken from the receivership assets.
+The receivership order was made on 30 January 2003.
+After about a year an application was made by the defendant for the discharge of the receiver.
+The application was heard by Lindsay J in April 2004 and was dismissed.
+The defendant appealed against that decision.
+While the case was pending in the Court of Appeal, a fresh application was made for the discharge of the receivership, which on this occasion was not opposed by the receiver.
+On 13 October 2004 Davis J ordered that the receiver be discharged on the pragmatic grounds that all the parties agreed that the expenditure and sums involved mean it simply does not make sense for the receiver to continue in office.
+The defendant continued with his appeal against the dismissal of his earlier application, and the Court of Appeal held that Lindsay J had misdirected himself in his approach to that application.
+The court found it difficult to assess how matters would have proceeded if the judge had asked himself the correct questions but it inferred that the date of discharge would have been likely to have been brought forward and, doing the best it could, it estimated that the likely date of discharge would have been 1 June 2004.
+The defendant submitted that the Revenue and Customs (who had obtained the order) should be responsible for the receivers remuneration and expenses for the period of four and a half months from 1 June 2004 to the date when the receivership order was discharged.
+The Court of Appeal considered that this would be just, and that it had power to make such an order under a recently introduced provision of the Civil Procedure Rules.
+The issue before the House of Lords was whether the relevant rule, CPR r 69.7, gave the court such power.
+The House of Lords held that the new rule did not introduce a fundamental change in the general law of receivership or in the position of receiverships under the 1998 Act or other comparable statute powers.
+As a further reason for reversing the Court of Appeals decision, Lord Walker observed at para 27 that a receiver takes on heavy responsibilities when he accepts appointment, and he is entitled to the security of knowing that the terms of his appointment will not be changed retrospectively, even if an appellate court later decides that the receivership should have been terminated at an earlier date.
+The issue for the House of Lords was therefore narrow.
+It was not disputed that the assets had been properly put into the hands of the receiver and there was no suggestion of a possible violation of A1P1.
+In Sinclair v Glatt [2009] EWCA Civ 176, [2009] 1 WLR 1845 the defendant was convicted of money laundering offences.
+In the course of the proceedings a restraint and receivership order was made against him relating to assets including properties of which he was the legal owner.
+The defendants former wife intervened claiming to be the beneficial owner of certain property and her claim was upheld.
+The receivership order was held to have been properly made, because the defendant was the legal owner of the property, and the Court of Appeal upheld the receivers claim to be entitled to a lien over it for his remuneration, costs and expenses.
+There was no argument about A1P1, but Elias LJ said obiter at para 42 that, given the potential injustice of the operation of the principle that the receivers can recover their costs and expenses from the receivership assets, he would not rule out the possibility that in an appropriate case A1P1 could limit the costs and expenses recoverable from an innocent third party.
+He added that he did not read the judgment of the Court of Appeal in Hughes as excluding that possibility.
+European Case Law
+Mr Perry relied on a number of cases in which the Strasbourg Court held that interim restraints imposed on a defendants liberty or use of his property in the course of criminal proceedings did not contravene the Convention or A1P1.
+Mr Jones submitted that these decisions were distinguishable and he referred to other decisions of the court about the general interpretation of A1P1 in support of his case.
+In Sporrong and Lonnroth v Sweden (1982) 5 EHRR 35 the Strasbourg Court was sharply divided over the proper interpretation of A1P1.
+A forceful minority judgment favoured holding that the second paragraph (beginning The preceding provisions shall not, however, in any way impair the right of a State. ) qualified the whole of the first paragraph.
+The majority held that A1P1 contains three separate and distinct rules.
+The first rule, expressed in the first sentence, is a rule of general application which recognises every persons right to peaceful enjoyment of his possessions.
+The second rule, in the second sentence, deals with measures which deprive a person of his possessions.
+Deprivation is permissible if, but only if, it is in the public interest and subject to the conditions provided for by law and by the general principles of international law.
+The third rule deals with the states power to enforce laws controlling the use by a person of his property but is not relevant to cases of deprivation of property, which are governed by a combination of rules 1 and 2.
+The court also stressed, at para 69, that for the purpose of deciding whether there has been a breach of the first rule, the Court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individuals fundamental rights.
+The search for this balance is inherent in the whole of the Convention and is also reflected in the structure of article 1.
+In James v United Kingdom (1986) 8 EHRR 123, para 37, the court clarified what it meant by A1P1 comprising three distinct rules.
+The court said that the three rules were not distinct in the sense of being unconnected.
+The second and third rules were concerned with particular instances of interference with the right to peaceful enjoyment of property and were therefore to be construed in the light of the general principle clearly enunciated in the first rule.
+The court rejected an argument that the public interest test in the deprivation rule is satisfied only if the property is taken for the use or benefit of the public at large.
+It held that a taking of property effected in pursuance of legitimate social, economic or other policies may be in the public interest; that the margin of appreciation open to a national legislature in implementing social and economic policies is a wide one; and that the court will respect its judgment as to what is in the public interest unless that judgment is manifestly without reasonable foundation (paras 39 to 45).
+However, in order for a taking of private property to be compliant with A1P1, not only must the measure under which the property is taken pursue a legitimate aim in the public interest, but there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised.
+The court in James repeated its statement in Sporrong that a fair balance must be struck between the demands of the general interest of the community and the requirements of the protection of the individuals fundamental rights, and it added that the requisite balance will not be found if the person concerned has had to bear an individual and excessive burden (para 50).
+The court held that the requirement in the deprivation rule that the taking must be in accordance with the general principles of international law does not apply to a taking by a state of the property of its own nationals (para 66).
+However, the court stated that the requirement that any taking shall be subject to the conditions provided for by law refers not merely to municipal law but relates also to the quality of the law, requiring it to be compatible with the rule of law and not arbitrary (para 67).
+In Lithgow v United Kingdom (1986) EHRR 329 the court held that the phrase
+subject to the conditions provided for by law requires the existence of and compliance with adequately accessible and sufficiently precise domestic legal provisions (para 110).
+As to the need for a reasonable relationship of proportionality between the means employed and the aim sought to be realised, and the requirement that a balance must be struck between the general interest to the community and protection of the individuals fundamental rights, it said that the taking of property without reasonable compensation would normally constitute a disproportionate interference (paras 121 to 151).
+The cases of Sporrong, James and Lithgow contain important statements of general principle (as this court recognised in AXA General Insurance Ltd v HM Advocate [2011] UKSC 46, [2012] 1 AC 868), but they were not cases of property being taken for purposes connected with criminal proceedings.
+In that context I come next to the cases on which the receiver and the CPS rely.
+In Raimondo v Italy (1994) 18 EHRR 237 the applicant was arrested and placed under house arrest on charges relating to his association with the Mafia.
+As an interim measure some of his property was seized.
+The proceedings ended in his acquittal.
+He claimed that the seizure of his property was a violation of his rights under A1P1 but his complaint was dismissed.
+The court held that the seizure, as a provisional measure intended to ensure that property which appeared to be the fruit of unlawful activities carried out to the detriment of the community could subsequently be confiscated if necessary, was justified by the general interest.
+In view of the extremely dangerous economic power of an organisation like the Mafia, it could not be said that taking the step of seizing the property at an early stage of the proceedings was disproportionate to the aim pursued.
+There was an additional complaint that the property was not only seized but confiscated.
+However, the confiscation order was rescindable and had in fact been rescinded.
+In practical terms it entailed no additional restriction to the seizure, and therefore the respondent state was held not to have overstepped the margin of appreciation available to it.
+The acquitted defendant in Andrews (referred to in para 45) took his case to Strasbourg: Application No 49584/99, 26 September 2002.
+He complained that the use of his assets to cover the receivers legal costs and expenses was a breach of his rights under A1P1 but his complaint was dismissed as manifestly ill founded.
+The court observed that the applicant had not argued that there was insufficient evidence on which to base the charges made against him; that he had specifically referred to his close involvement with the transport company when declaring his assets; that the proper administration of the affairs of the company was obviously in the applicants own interest; and that he was consulted by the receiver in the monitoring of the company.
+The court said: Having regard to these considerations, the Court is not persuaded that the applicant was required to bear an individual and excessive burden through having to fund the costs and expenses incurred by the receiver .
+It is true that the applicant was ultimately acquitted of the charges brought against him.
+However, it is equally true that at the time of the execution of the Restraint and Receivership Orders there was a case against him which required to be answered, and necessary steps had to be taken to preserve assets in respect of which he had more than a peripheral interest.
+In these circumstances, and having regard also to the absence of any arbitrariness in the impugned decisions, the Court does not consider that the authorities can be said to have failed to strike a fair balance between the applicants property right and the general interests of the community.
+The government in Andrews accepted that there had been an interference with the applicants right to the peaceful enjoyment of his property.
+The applicant argued that there had been a deprivation of his property within the meaning of the second sentence of A1P1.
+The court considered that the initial seizure had been an exercise of control over the use of the property, in order to ensure that it would be available for payment of revenue owed by him in the event of his conviction, and that payment of the receivers costs out of the property should be regarded as part of the exercise by the state of the rights reserved to it under the second paragraph of A1P1 and therefore served a legitimate aim.
+I have no difficulty with the courts view that there was a legitimate aim, but that is different from the question whether there was a deprivation of assets.
+The court seems to have regarded the payment of the receiver as money spent on the preservation of the applicants property and therefore not a deprivation; in other words, expenditure of funds for the benefit of the property was not to be regarded as a deprivation.
+That would account for the courts emphasis on the fact that the proper administration of the affairs of the company was obviously in the applicants own interest and that he was consulted by the receiver in the monitoring of the company.
+If so, that was a conclusion on the particular facts of that case, rather than a principle of law of general application, and its relevance was to the courts judgment about whether the applicant was required to bear an individual and excessive burden.
+In Benham v United Kingdom (1996) 22 EHRR 293 the applicant was
+committed to prison by a magistrates court for non payment of a community charge.
+The Divisional Court held on appeal that the magistrates had been wrong to do so.
+The applicant complained that his imprisonment was a violation of his rights under article 5 and that he had an enforceable right to compensation under article 5(5).
+The Strasbourg Court rejected his complaints.
+It held that his detention had been lawful within the meaning of article 5 because it was carried out pursuant to a court order.
+The subsequent finding that the court had erred under domestic law in making that order did not retrospectively affect the validity of his period of detention.
+His detention had not been arbitrary.
+There was no suggestion that the magistrates had acted in bad faith or that they had not attempted to apply the relevant legislation correctly.
+The law which the magistrates had to apply was not straightforward.
+Their decision had been erroneous but they had acted, albeit mistakenly, within their lawful jurisdiction.
+By contrast, in Frizen v Russia (2005) 42 EHRR 388 the Court held that a confiscation order made by a Russian criminal court was unlawful and involved a violation of the applicants rights under A1P1.
+The husband was convicted of fraud.
+She was not herself charged with any criminal offence.
+After his conviction the court made a confiscation order in respect of her husbands property and it included in the confiscation order a vehicle which the applicant maintained had been bought from money which she had borrowed and belonged to her.
+However, it failed to identify any legal basis justifying the confiscation.
+Judgment of Underhill J
+Quoting from the judgment of Simon Brown LJ in Hughes, Underhill J said that the essential questions arising under A1P1 were whether the measures taken were (i) in the public interest, (ii) appropriate for achieving their aim, (iii) proportionate and (iv) achieved a fair balance between the demands of the general interest of the community and the requirements of the protection of the individuals rights.
+He concluded that it would be a breach of the companies rights under A1P1 if they had ultimately to bear the burden of the receivers costs and expenses.
+Underhill J distinguished Hughes on the grounds that in that case the order had been properly made, notwithstanding the eventual acquittal (or non prosecution) of the alleged defender, and the adverse affects on the third party were the consequence of his having the misfortune to share an interest in property with someone reasonably suspected of involvement in serious crime.
+Underhill J continued: But the situation seems to me fundamentally different where the adverse effect on the third party is the result not of his sharing property rights with the alleged offender but of his property being treated, wrongly and without sufficient evidence, as property in which the alleged offender has an interest.
+It does not seem to me that the public interest justification endorsed in Hughes has any application to such a case: the third partys assets are simply confiscated to fund the execution of an order that should not have been made in the first place.
+Underhill J referred to some remarks in Sinclair v Glatt which could be taken as suggesting that an adverse impact on a third party might be disproportionate in the case of a stranger but justifiable where the parties were sufficiently closely associated.
+He noted that in the present case there was a close connection between the companies and the alleged offenders, and that it might be the case (as yet unproved) that the companies had been used to some extent in carrying out the alleged offences.
+He accepted that where the third party and the alleged offender shared an interest in property the nature of their association might be relevant in deciding whether the third party should bear the resulting cost of the receivership, but he regarded the case as different where the third partys property was unequivocally his own and there was no basis for a receiver being appointed over it.
+If there was sufficient ground for believing that the companies themselves were not innocent in relation to the alleged offending, the right course in his view was for the companies to be treated as alleged offenders in their own right.
+Underhill J went on to consider the position of the receiver and the CPS.
+He observed that to deny the receiver his remuneration would be an unacceptable way of vindicating the companies rights and would involve remedying one injustice only by creating another.
+The receiver took charge of the companies assets as an officer of the court, and incurred expenditure and liabilities on the faith of a court order which was valid and effective until discharged by the Court of Appeal.
+He had no responsibility for the fact that the order was wrongly made and it would be intolerable that he should not be entitled to be paid, from one source or another, his proper fees and expenses.
+Underhill J considered that section 3 of the Human Rights Act 1998 enabled him to interpret POCA as giving the court the right, in circumstances such as those of the present case, to order that the receivers remuneration and expenses be paid by the CPS.
+On that basis he ordered the CPS to pay the receivers remuneration and legal costs (subject to an assessment by the taxing authority of the Crown Court).
+Judgment of Mitting and Edwards Stuart JJ
+The majority of the Court of Appeal began by noting that it was settled law at Strasbourg that A1P1 comprises three distinct rules (Sporrong).
+Since the receivers application to use the assets of the company to meet his remuneration and expenses involved a taking and not merely an interference with the use of the companies property, the relevant rule was the second rule, contained in the second sentence of A1P1.
+The majority correctly noted that the general principles of international law were irrelevant for present purposes.
+The question was whether depriving the companies of their assets for the purpose of paying the receiver would meet the requirements of being in the public interest and subject to the conditions provided for by law.
+The majority concluded that the proposed taking of the companies assets would not comply with the conditions required by law.
+Their reasoning process was as follows: 1) Before assets could properly be made the subject of a receivership order, there must be reasonable cause to believe that the alleged offender had benefited from his criminal conduct (section 40(2)(b) of POCA) and there must be a good arguable case for treating particular assets as the realisable property of the defendant (CPS v Compton). 2) The first condition was not satisfied on either 6 or 23 December 2010 and the second was not satisfied on 23 December 2010. 3) It was true that deprivation of the companies property to pay the remuneration and expenses of the receiver was authorised by law in a superficial sense, in that it is a settled principle of receivership law that a receiver is entitled to be paid his remuneration and assets out of the assets he is appointed to receive and manage. 4) However, that proposition was subject to an important caveat: the conditions upon which a restraint order may be made and a receiver appointed must first be satisfied.
+If they are not, there is no lawful basis for the appointment of a receiver in respect of property belonging to an alleged offender, still less property belonging to a third person. 5) In order to determine the issue of lawfulness for the purpose of the second rule under A1P1, the court must look to the underlying lawfulness of the receivers appointment. 6) The bare fact that the receiver had been appointed by order of a court was not sufficient to authorise the deprivation: Frizen v Russia.
+The majority held, in agreement with Laws LJ, that Underhill J had been wrong to hold that POCA could be interpreted in such a way as to give the court power to order the receivers remuneration and expenses to be paid by the CPS.
+They recognised the unsatisfactoriness of the outcome, since the receiver had been appointed by the court, on the application of the CPS, had undertaken work and incurred expenses in the legitimate understanding that he would be rewarded and recompensed out of assets identified by the CPS.
+Their judgment left open the possibility that the receiver might have a common law remedy, but they did not elaborate on this, presumably because the point had not been developed in argument.
+Judgment of Laws LJ
+Laws LJs analysis began logically with domestic law.
+The setting aside of the receivership order by the Court of Appeal did not render the order under which the receiver was appointed a nullity ab initio.
+The Crown Court order had the force of law until it was set aside and the setting aside of the order did not retrospectively deprive the receiver of his right to remuneration under it.
+As Laws LJ pithily put it, The Crown Courts order is therefore good until set aside; and this is so whatever the basis on which it is set aside.
+The terms of the receivers appointment and his remuneration, costs and expenses were within the courts power to order (under section 49(2)(d) and the criminal procedure rules), and they entitled the receiver to recover his proper remuneration and expenses out of the companies assets.
+Laws LJ disagreed with the majoritys interpretation of the conditions provided for by law under A1P1.
+The conditions provided for by law were soundly constituted by (i) the material provisions of POCA, (ii) the order made by the Crown Court on 6 December 2010, (iii) the common law rule that the orders of a superior court of record are good until set aside and (iv) the common law rule that a receiver is entitled to be paid his remuneration and expenses out of the assets he is appointed to receive and manage, which gave a long standing historic context to the orders effect and vindicated the principle of legal certainty.
+Laws LJ went on to consider the requirement of proportionality.
+He cited Raimondo as an authority showing that statutory regimes of seizure and confiscation by the state may well be justified under A1P1 for the prevention of crime and that the Strasbourg Court will allow a margin of appreciation to the state.
+There could be no argument as to the POCA regimes legitimate aim, which was to preserve property for the satisfaction of confiscation orders made to strip criminals of the fruits of their crime.
+The Act constituted the judgment of Parliament as to how a fair balance between the demands of the general interest of the community and the requirements of the protection of the individuals right should be struck in this area.
+Parliaments judgment leant heavily towards the general interest, although there are careful, but limited, protections for the individual (notably in sections 61 and 72).
+Given the respect owed by domestic courts, and the Strasbourg Court, to Parliaments judgment as to how the balance between general interest and private right was to be struck, Laws LJ considered that A1P1 would only very rarely be violated on proportionality grounds by the effects of a receivership order.
+This was not in his judgment such a case.
+On Laws LJs approach to A1P1, the question of the courts power to order recovery of the receivers remuneration and expenses against the CPS would not have arisen, but he addressed it in view of the decision of the majority on the A1P1 issue.
+He noted that no express provision of POCA gave the court any such power.
+The question was whether section 3 of the Human Rights Act allowed the court to interpret or read down the statute so as to find such a power.
+There was no provision in the Act which might be amenable to that process of interpretation, and the policy of the statute was that the receivers right to recover his expenses from the receivership properly applied in every instance (unless different arrangements were made by contract).
+In those circumstances he concluded that there was no power in the court to make an order against the CPS.
+A1P1: discussion
+Since the present case involves deprivation of the companies assets, and not merely control of their use, the Court of Appeal identified the second of Sporrongs three rules as the key provision: No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law [and by the general principles of international law].
+As the court recognised, the reference to international law is irrelevant in the case of a taking by a state of the property of its own nationals.
+The critical questions are those addressed by Laws LJ: (1) whether the proposed taking is in accordance with conditions provided for by law; (2) if so, whether the measure relied upon to justify the taking has a legitimate aim; (3) if the first and second conditions are each satisfied, whether the taking strikes a fair balance between the general interest of the community and the requirements of the protection of the companies right to peaceful enjoyment of their possessions.
+On the question of lawfulness, Mr Jones submitted that the majority of the Court of Appeal were right in their analysis (summarised in para 71 above).
+Mr Perry and Mr Parroy submitted that the majority were wrong and that Laws LJ was correct in his analysis (summarised at paras 73 to 75 above).
+On this issue I agree with Laws LJ for the reasons given by him and I cannot improve on his analysis.
+Mr Jones sought to uphold the approach of the majority by reference to the observations of the Strasbourg Court in James at para 67 (referred to at para 58 above) to the effect that the expression the conditions provided for by law in A1P1 refers not merely to municipal law but also to the quality of the law.
+The point which the Strasbourg Court was making was that the relevant conditions must comply with the rule of law in terms of clarity, accessibility and lack of arbitrariness.
+The relevant provisions of POCA together with the common law of receivership (the Criminal Procedure Rules) amply satisfy the requirements of the rule of law.
+Frizen v Russia, on which Mitting and Edwards Stuart JJ placed some reliance, was not a comparable case because the state in that case was unable to identify any provision of domestic law under which the order had been made.
+Laws LJ was plainly right that as a matter of domestic law the appointment of the receiver was valid until the Court of Appeal set aside the order appointing him.
+Under domestic law the Crown Court had power to order that the receivers remuneration and expenses should be taken from the assets placed in his control.
+The setting aside of the receivers appointment did not retrospectively affect his entitlement to be paid out of those assets for his proper remuneration and expenses during the period of the receivership.
+Next, Mr Jones submitted that the measure relied on to justify payment of the receivers remuneration and expenses out of the assets of the companies was not in the public interest because it lacked a legitimate aim.
+Its aim, he submitted, was to enable the state to place the cost of an order which ought never to have been made on to the person against whom it was made, and that this was not a legitimate purpose.
+However, that is to start at the wrong end.
+It is to deduce the aim by reference to the result rather than to look at the measure itself in order to see what is its true aim.
+The safety valve against a measure with a legitimate aim being relied upon to produce an unjustifiable result is the separate requirement of proportionality.
+The Strasbourg Court has adopted a generous approach to the public interest test, allowing a wide measure of appreciation to a national legislature in determining what it considers to be in the public interest (see James, referred to at para 56 above).
+The aim of the legislature in enabling the court to appoint an interim receiver under section 48 was to preserve property pending the conclusion of criminal proceedings and the possible making of a confiscation order.
+A professional receiver would have to be paid, and the purpose of allowing the court to apply the usual common law principle as to the payment of receivers was to enable the receivership to operate like any other.
+I agree with Laws LJ it was open to Parliament to form the judgment that this would serve the legitimate public interest in combatting crime by making it unprofitable.
+The critical question is whether in the circumstances of the present case an order that the receivers costs and expenses should be met out of the companies assets is disproportionate, in that it would not achieve a fair balance between the interest of the community and protection of the companies right to their own property.
+I start from the position that the taking of property without compensation will
+normally be a disproportionate interference with a persons A1P1 rights.
+Although this was said in a case about compulsory purchase, it is a general principle, but it is only a starting point.
+To give an obvious example, a confiscation order under POCA is a taking of property without compensation, but it is done for the salutary purpose of depriving a criminal of the proceeds of his crime.
+A restraint order and receivership order may also be proportionate if reasonably ancillary to that process.
+In Andrews the Strasbourg Court judged that it was not disproportionate that the costs of a receivership should be taken from the assets of the defendant notwithstanding his ultimate acquittal.
+However, in its reasoning the Court highlighted the fact that there was a case against the applicant, which required to be answered, and that necessary steps had to be taken to preserve assets in which he had more than a peripheral interest.
+Sometimes too it may happen that an innocent third partys affairs are so intermingled with the defendants as to give reasonable cause to believe the defendant to be the owner of assets which are ultimately found to belong to a third party, but that is not the present case.
+In this case, the companies were neither defendants nor was there reasonable cause for regarding their assets as the assets of the defendants on the evidence before the court at the time when the receivership order against them was made effective (14 December 2010).
+Whilst those facts did not make the receivership order legally invalid under domestic law during the period until it was set aside, they are the cornerstone of the companies argument that it would be disproportionate and unfair to require them to pay the costs of the receivership.
+Mr Perry and Mr Parroy submitted that although it must now be accepted that the receivership order ought never to have been made, the court should adopt a similar approach to that of the Strasbourg Court in Benham (referred to in para 62 above).
+In that case the applicant was imprisoned under an order which ought not to have been made, but the matter was complex and the magistrates acted in good faith.
+It was held that there was therefore no breach of article 5.
+By parity of reasoning it was argued that the court should conclude that to require the companies to bear the costs of the receivership would not infringe A1P1, because (as is true) the order under which the receiver seeks to recover his remuneration and expenses from the companies was made by the Crown Court in good faith and the matter was complicated.
+Simon Brown LJ drew a similar analogy between article 5 and A1P1 in Hughes, referred to at para 46 above, when he said that it was no more unfair, disproportionate or arbitrary that an acquitted defendant should be uncompensated for any adverse effects of a restraint or a receivership order than that he should be uncompensated for loss of liberty whilst on remand.
+I am not persuaded that the analogy is apt.
+It is true that a remand in custody and the appointment of a management receiver are both forms of interim restraint and both may cause the individual to suffer financial loss as a side effect, but it is not right simply to lump together different forms of loss and assume that the Convention applies in the same way to them all.
+If the companies were claiming to recover trading losses resulting from the impact of their business being put into the hands of the receiver, it would be a claim for loss by interference with their property, to which the third rule in Sporrong would apply.
+It could be said that there would be an analogy between a claim for that kind of loss and a claim for loss resulting from the interim detention of the individual.
+I see the argument that it would be strange that a person who is remanded in custody and whose property is made the subject of a restraint and receivership order should be disentitled to claim for the loss of earnings resulting from his personal detention but might be entitled to claim for loss of trading opportunities resulting from the restraint on his property.
+I see also the argument that it might have a chilling effect on prosecutors if they faced the prospect of possibly having to make good trading losses during the period of a receivership, which might be considerable but would be hard to estimate and over which the prosecution would have no control.
+However, the court is not considering a claim of that kind.
+The companies are resisting an application by the receiver to take his expenses and remuneration out of their companies assets.
+It is quite different from a claim for compensation for a period of remand in custody.
+If one wanted to find an analogy with a defendant remanded in custody, the nearest equivalent would be if the assets of the defendant were sought to be used to defray the costs of detaining him and the legal proceedings.
+The important point for present purposes is that whereas incidental loss (such as trading loss) which a person may suffer as a by product of an interim restraint would come under the third rule in Sporrong, as loss resulting from the states interference with the property, the Court of Appeal were right to identify the second rule as the relevant rule in this case because it concerns a proposed taking of the companies assets.
+In support of their argument for regarding the taking as a proportionate measure, Mr Perry and Mr Parroy drew attention to the protections for the individual which are built into the relevant part of POCA, including particularly section 49(8), set out in para 34 above.
+Under that subsection the court must not activate any power given to the receiver to manage the property, or realise assets for the purpose of meeting his remuneration and expenses, until any person holding an interest in the property has had a reasonable opportunity to make representations.
+That provision is designed to minimise the risk of the court making a wrongful order such as was made in this case, but I do not see that a taking is rendered proportionate by the existence of a protective provision which failed to operate as it should.
+Indeed the opposite could be argued.
+This case is distinguishable from Raimondo, Andrews, Hughes, Capewell and Sinclair v Glatt, because all those cases were decided on the premise that the original receivership order was rightly made.
+In Sinclair v Glatt the applicant was not the defendant, but the relevant property was in the defendants legal ownership and was therefore held to be properly included in the receivership order.
+In the present case, however, not only were the companies not defendants, but at the time when the receivers powers were activated there was no reasonable cause to believe that their assets were assets of the defendants.
+The question is whether on those facts it strikes a fair balance between the general interest of the community and the protection of the companies rights to the peaceful enjoyment of their property that the companies assets should be taken to pay for the costs and remuneration of the receiver.
+At this point I part company with Laws LJ and agree with Underhill J that this would not be a fair balance.
+As Lord Reed observed in AXA General Insurance Ltd v HM Advocate at para 128, the assessment of proportionality requires careful consideration of the particular facts.
+In this instance there was no good arguable case for assimilating the companies assets with those of the defendants, and Underhill J aptly described it as simply a confiscation of a third partys assets to fund the execution of an order that should not have been made in the first place.
+In Capewell Lord Walker at para 25 described the relationship between the general law of receivership and the detailed provisions of the Criminal Justice Act 1988 (for which one must now substitute POCA) as somewhat opaque.
+Section 49(2)(d) empowers the court to authorise the receiver to realise so much of the property as is necessary to meet his remuneration and expenses in accordance with the ordinary law of receivership.
+However, the court as a public authority must not exercise its power in such a way as to breach the companies rights under A1P1.
+At the same time a real difficulty arises from my conclusion that the companies rights would be violated if the receivers application to use their assets to meet his remuneration and expenses were granted (and similarly if he were permitted to retain money already taken by him, subject to any further evidence and submissions for which Underhill J gave permission in his order referred to in para 4(iii) above).
+Nobody on the hearing of this appeal has disputed the courts jurisdiction not only to set aside the receivership order (as has happened) but to refuse the receivers application, if it concludes as I do that it would involve a violation of the companies A1P1 rights, but Underhill J correctly recognised that simply to refuse the application would replace one injustice with another.
+As Lord Walker said in Capewell, a receiver who accepts appointment by a court is entitled to know that the terms of his appointment will not be changed retrospectively.
+Moreover it is an ordinary part of receivership law that a receiver has a lien for his proper remuneration and expenses over the receivership property.
+To take away that right without compensating him would violate the receivers rights under A1P1.
+Unless it is within the power of the court to ensure that the receiver receives his recompense for which the lien is a security by some other means, the court will be left in the invidious position of violating the companies A1P1 rights if the receivers application is allowed and violating the receivers A1P1 rights if it is refused.
+That leads to the question whether the court has power to order that the receivers proper remuneration and expenses should be paid by the CPS.
+Relationship between the receiver and the CPS
+I agree with the Court of Appeal that it is not possible to locate within POCA a power to order the CPS to pay the receivers remuneration and expenses.
+Underhill J did not identify how this might be done and Mr Perry was not able to do so.
+Adopting an alternative approach suggested by the court, Mr Perry argued that the receiver was induced to accept his appointment on the promise or expectation of being able to recoup his expenses and remuneration from the property over which he was appointed to act, although the receiver accepted the financial risk that those assets might be of insufficient value.
+The terms on which the CPS asked the receiver to agree to act were set out in the letter to which I have referred.
+The relevant provisions are set out in paras 19 and 20.
+The letter included the statement that the receiver would have a lien over the defendants assets and that the CPS did not undertake to indemnify him if those assets were insufficient.
+The appointment by the court was made on the terms of the agreement between the CPS and the receiver, and the receivership assets included the assets of the company which were expressly included in the terms of the court order.
+The effect of my conclusion on A1P1 is that the lien is unenforceable.
+There is an argument that the statement you will have a lien over the defendants assets for payment of your fees should be interpreted as a promise that the receiver would have a legally enforceable lien over the receivership property, whatever its value might be, but to resort to that solution would involve a strained and artificial construction of the letter.
+The alternative is that the CPS made no such promise to the receiver, but that this was their mutual expectation and was the premise on which the receiver agreed to act.
+If the latter is the preferable analysis, does the receiver have a remedy against the CPS under the law of restitution or unjust enrichment?
+The current preference among scholars of the subject is to call it unjust enrichment rather than restitution.
+An example is the renaming of Goff and Jones seminal textbook.
+The first seven editions were entitled The Law of Restitution but the title of the eight edition (2011) has been changed to The Law of Unjust Enrichment.
+What matters is the content, and the words unjust and enrichment are both in some respects terms of article
+Enrichment requires the obtaining of a benefit, which may include the provision of services, as correctly stated by Professor Andrew Burrows in his Restatement of the English Law of Unjust Enrichment, 2012, at p 7.
+The CPS plainly perceived that there would be benefit to the public in the companies assets being removed from their control and placed in the hands of an independent receiver while its criminal investigation was proceeding.
+As to the unjust element in an unjust enrichment claim, I agree with the following overview in the current edition of Goff and Jones at para 1 08: the unjust element in unjust enrichment is simply a generalisation of all the factors which the law recognises as calling for restitution [a citation from the judgment of Campbell J in Wasada Pty Ltd v State Rail Authority of New South Wales (No 2) [2003] NSWSC 987 at [16], quoting Mason & Carter, Restitution Law in Australia (1995), 59 60].
+In other words, unjust enrichment is not an abstract moral principle to which the courts must refer when deciding cases; it is an organising concept that groups decided authorities on the basis that they share a set of common features, namely that in all of them the defendant has been enriched by the receipt of a benefit that is gained at the claimants expense in circumstances that the law deems to be unjust.
+The reasons why the courts have held a defendants enrichment to be unjust vary from one set of cases to another, and in this respect the law of unjust enrichment more closely resembles the law of torts (recognising a variety of reasons why a defendant must compensate a claimant for harm) than it does the law of contract (embodying the single principle that expectations engendered by binding promises must be fulfilled).
+An important part of this branch of law is concerned with cases where money is paid or benefits are conferred for a consideration which has failed.
+Burrows Restatement at p 86, accommodates this within the concept of unjust enrichment by stating that a defendants enrichment is unjust if the claimant has enriched the defendant on the basis of a consideration that fails.
+Confusion is sometimes caused by the fact that the term consideration, when used in the phrase failure of consideration as a reason for a restitutionary claim, does not mean the same thing as it does when considering whether there is sufficient consideration to support the formation of a valid contract.
+Viscount Simon LC explained this in Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32, 48: In English law, an enforceable contract may be formed by an exchange of a promise for a promise, or by the exchange of a promise for an act . but when one is considering the law of failure of consideration and of the quasi contractual right to recover money on that ground, it is, generally speaking, not the promise which is referred to as the consideration, but the performance of the promise.
+To avoid this confusion, Goff and Jones suggest, at paras 12 10 to 12 15, that the expression failure of basis is preferable to failure of consideration because it accurately identifies the essence of the claim being pursued.
+Whichever terminology is used, the legal content is the same.
+The attraction of failure of basis is that it is more apt, but failure of consideration is more familiar.
+Failure of basis, or failure of consideration as it has been generally called, does not necessarily require failure of a promised counter performance; it may consist of the failure of a state of affairs on which the agreement was premised.
+A succinct summary of the meaning of failure of consideration was given by Professor Birks in his An Introduction to the Law of Restitution (1989), p 223 (cited with approval by the Court of Appeal in Sharma v Simposh Ltd [2011] EWCA Civ 1383, [2013] Ch 23, para 24): Failure of the consideration for a payment . means that the state of affairs contemplated as the basis or reason for the payment has failed to materialise or, if it did exist, has failed to sustain itself.
+In the present case the receiver has lost his lien.
+Professor Birks reference to failure of the consideration for a payment would apply equally to failure of the consideration for the provision of services.
+The present case involves both; the receiver made payments for the protection of the receivership property (in particular by the employment of security guards) and also provided professional services for which he seeks remuneration.
+The point that a failure of consideration may consist of the failure of a non promissory event or state of affairs is reiterated in Burrows Restatement at pp 86 87.
+He states that consideration which fails may have been an event or a state of affairs that was not promised, and he cites the decision of the High Court of Australia in Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 as an example of a failure of a non promissory condition as to the future.
+Rothmans were licensed to act as wholesalers of tobacco products under a New South Wales statute.
+They sold products to retailers for a price including licence fees, which were in reality a form of indirect taxation, payable by Rothmans to the New South Wales government.
+The Act imposing that liability on Rothmans was held by the High Court to be unconstitutional.
+The retailers then sued Rothmans to recover the amounts which they had paid in respect of the tax which had until then been unlawfully imposed on Rothmans.
+The retailers argued unsuccessfully that there was an implied agreement under which they could claim repayment of any unpaid tax.
+This argument was described in the leading judgment of Gleeson CJ, Gaudron and Hayne JJ, as artificial and unconvincing (para 20).
+However, the retailers succeeded in restitution.
+Gleeson CJ, Gaudron and Hayne JJ, stated at para 16 that Failure of consideration is not limited to non performance of a contractual obligation, although it may include that.
+They also rejected Rothmans argument that the restitution claims failed because there had not been a total failure of consideration, by interpreting the consideration for the total payments made by the retailers as containing severable parts.
+Gummow J (concurring), in a passage at para 72 with which I agree, advocated caution in judicial acceptance of any all embracing theory of restitutionary rights and remedies founded upon a notion of unjust enrichment.
+To the lawyer whose mind has been moulded by civilian influences, the theory may come first, and the source of the theory may be the writing of jurists not the decisions of judges.
+However, that is not the way in which a system based on case law develops; over time, general principle is derived from judicial decisions upon particular instances, not the other way around.
+After reviewing the authorities Gummow J held, at paras 101 to 102, that failure of consideration in this area of law may include the collapse of a bargain, which need not be contractual in nature.
+He held at para 104 that there had been no failure in the performance by Rothmans of any promise made by them, but that there had been a failure of consideration in the failure to sustain itself of the state of affairs contemplated as a basis for the payments the appellants seek to recover.
+Similarly, in the present case the receiver agreed to accept the burden of management of the companies on the basis that he would be entitled to take his remuneration and expenses from the companies assets, and that state of affairs which was fundamental to the agreement has failed to sustain itself.
+It might nevertheless be argued that there has not been a total failure of consideration, because the restraint and receivership order included assets of the defendants other than the assets of the companies.
+There is a lively academic debate whether it is an accurate statement of law today that failure of consideration cannot found a claim in restitution or unjust enrichment unless the failure is total, but that point has not been fully argued and it is unnecessary to decide it in this case.
+Modern authorities show that the courts are prepared, where it reflects commercial reality, to treat consideration as severable.
+Rothmans itself is an example.
+Another example cited by Burrows is the decision of the Court of Appeal in D O Ferguson & Associates v M Sohl (1992) 62 BLR 1995.
+That case involved a building contract which was repudiated by the builders at a time when the works had been partly completed.
+The contract price was approximately 32,000.
+At the time when the builders abandoned the site they had been paid over 26,000 and the value of work done by them was about 22,000.
+It was held that the owner was entitled to claim in restitution for the sum of 4,673, representing the amount by which the sums paid to the builders exceeded the value of the work done.
+The builders objected that there had not been a total failure of consideration under the contract, since most of the building work had been done, but the court held that there had been a total failure of consideration for the amount by which the builders had been overpaid.
+In the present case there was a total failure of consideration in relation to the receivers rights over the companies assets, which was fundamental to the basis on which the receiver was requested by the CPS and agreed to act.
+I use the expression fundamental to the basis because it should not be thought that mere failure of an expectation which motivated a party to enter into a contract may give rise to a restitutionary claim.
+Most contracts are entered into with intentions or expectations which may not be fulfilled, and the allocation of the risk of their non fulfilment is a function of the contract.
+But in the present case the expectation that the receiver would have a legal right to recover his remuneration and expenses was not just a motivating factor.
+Nobody envisaged that the receiver should provide his services in managing the companies as a volunteer; those services were to be in return for his right to recover his remuneration and expenses from the assets of the companies, such as they might be.
+The agreement between the CPS and the receiver so provided, and that provision was incorporated into the order of the court.
+I would hold that the CPS fulfilled its contractual obligations to the receiver by ensuring that the order appointing him conformed with the terms of the underlying agreement between them, but that the receiver is entitled to recover his proper remuneration and expenses from the CPS because the work done and expenses incurred by the receiver were at the request of the CPS and there has been a failure of the basis on which the receiver was asked and agreed to do so.
+Disposal
+I would uphold the Court of Appeals decision dismissing the CPSs appeal from the refusal by Underhill J to make an order permitting the taking of the companies assets to meet his remuneration and expenses, essentially for the reasons given by Underhill J.
+I would allow the receivers appeal against the Court of Appeals decision in relation to the CPS and reinstate the order of Underhill J referred to at para 4 above (but for different reasoning).
+Lessons for the future
+In the judgment of the Court of Appeal referred to at para 24 above, Hooper LJ deplored the fact that the original application was made at short notice to a judge who was in the middle of conducting a heavy trial and with only a limited time available for considering it.
+It should be axiomatic that, as he said, an application of this complexity should be listed before a judge with sufficient time to read and absorb the papers and with sufficient time to conduct a proper hearing.
+The problem was compounded in this case by the lack of proper opportunity which the judge had to consider the evidence lodged by the companies before he made the critical decision to implement the receivers powers.
+When the CPS is proposing to seek a restraint order, and particularly a restraint order coupled with a receivership order, it should give as much advance notice to the listing office as it reasonably can, together with a properly considered estimate of the time likely to be required for pre reading and for the hearing of the application.
+If other trials are not to be interrupted, the listing office will need proper time to make the necessary arrangements under the supervision of the resident judge, who may well need to consult the presiding judge and should certainly do so in complex cases, which may merit being heard by a High Court judge.
+The fact that such applications are made ex parte, and the potential seriousness of the consequences for defendants (at this stage presumed to be innocent) and for potential third parties, mean that there is a special burden both on the prosecution and on the court.
+Hughes LJ spelt this out plainly and emphatically in In re Stanford International Bank Ltd [2010] EWCA Civ 137, [2011] 1 Ch 33, para 191, in a passage (cited in An Informer v A Chief Constable [2012] EWCA Civ 197, [2013] QB 579, para 71) which I would again repeat and endorse: it is essential that the duty of candour laid upon any applicant for an order without notice is fully understood and complied with.
+It is not limited to an obligation not to misrepresent.
+It consists in a duty to consider what any other interested party would, if present, wish to adduce by way of fact, or to say in answer to the application, and to place that material before the judge.
+That duty applies to an applicant for a restraint order under POCA in exactly the same way as to any other applicant for an order without notice.
+Even in relatively small value cases, the potential of a restraint order to disrupt other commercial or personal dealings is considerable.
+The prosecutor may believe that the defendant is a criminal, and he may turn out to be right, but that has yet to be proved.
+An application for a restraint order is emphatically not a routine matter of form, with the expectation that it will routinely be granted.
+The fact that the initial application is likely to be forced into a busy list, with very limited time for the judge to deal with it, is a yet further reason for the obligation of disclosure to be taken very seriously.
+In effect the prosecutor seeking an ex parte order must put on his defence hat and ask himself what, if he were representing the defendant or a third party with a relevant interest, he would be saying to the judge, and, having answered that question, that is what he must tell the judge.
+I would qualify that only by saying that it is not acceptable that such an application should be forced into a busy list, with very limited time for the judge to deal with it, except in the comparatively rare case of a true emergency application where there is literally no opportunity for the prosecution to give the court sufficient notice for any other arrangement to be made.
+In that case, the judge will need to consider what is the minimum required in order to preserve the situation until such time as the court has had an adequate opportunity to consider the evidence.
+A material failure to observe the duty of candour as explained above may well be regarded as serious default within the meaning of section 72 of the Act because of its potential to cause serious harm.
+Before making an application order for a restraint order, with or without a receivership order, the prosecutor must consider carefully the statutory conditions for making such order.
+There must be reasonable cause to believe that the prospective defendant has benefited from criminal conduct (section 40(2)(b)) and there must be a good arguable case that the assets which it is sought to restrain must be realisable property held by him.
+Both conditions require careful thought about who is alleged to have been party to the criminal conduct under investigation.
+Careful thought must also be given to the potential adverse effect on others who are not alleged to be party to the criminal conduct and possible means of avoiding or limiting it.
+A judge to whom such an application is made must look at it carefully and with a critical eye.
+The power to impose restraint and receivership orders is an important weapon in the battle against crime but if used when the evidence on objective analysis is tenuous or speculative, it is capable of causing harm rather than preventing it.
+Where third parties are likely to be affected, even if the statutory conditions for making the order are satisfied, the court must still consider carefully the potential adverse consequences to them before deciding whether on balance the order should be made and, if so, on what conditions.
+A judge who is in doubt may always ask for further information and require it to be properly vouched.
+It is important to remember that under section 49(9) a receivership order may be made subject to such conditions and exceptions as the court specifies.
+The conditions attached to receivership orders appear to have become largely standard, but the making of a receivership order should never be a rubber stamping exercise.
+The court has a responsibility to consider what conditions it should contain.
+In In re Piggott [2010] EWCA Civ 285, para 54, Rix LJ referred to a suggestion made by Wilson LJ in the course of argument that in an appropriate case a management receivership order might be made subject to a special term that, if it should be shown in due course that the property subject to the order was not realisable property of the defendant but wholly in the legal and beneficial ownership of a third party, then the costs of the management receivership should be borne, not by the property, but, in the absence of any other source, by the prosecutor.
+I attach as an appendix to this judgment a possible form of Piggott condition, for which I am grateful to Lord Wilson.
+In my view there may indeed be cases in which such a condition would be appropriate, particularly cases in which the court can see the possibility that payment of the receivers expenses and remuneration out of the relevant assets might infringe a persons A1P1 rights.
+APPENDIX THE PIGOTT CONDITION Order made under s 49(2)(d) of POCA and Crim.
+PR 60.6(5) (1) Subject to the condition set out in (2) below, the receiver shall, in relation to any property to which the above receivership order is expressed to apply, have powers to realise so much of it as is necessary to meet his or her remuneration and expenses and to recover them out of the proceeds of its realisation.
+Order made under s 49(9) of POCA (2) The condition referred to in (1) above is that, in the event that it is hereafter determined, whether on appeal or by way of application for variation or discharge of this order, that any property to which the above receivership order is expressed to apply is not arguably held by the defendant and so should not have been made subject to the above receivership order, the powers in (1) above shall not extend to such property and, to the extent that in consequence the said powers do not enable the receiver to recover his remuneration and expenses in full or in part, the applicant for this order do pay him in respect of them.
+LORD HUGHES
+I agree that the receivers appeal against the decision of the Court of Appeal should be dismissed, and that he should not, in this case, be entitled to recover his expenses from the third party assets belonging to the companies.
+I also agree that the receivers appeal should succeed against the CPS.
+I gratefully adopt the reasons given in Lord Toulsons comprehensive judgment and add only a very few words on the topic of the application of A1P1 to the particular case of receivership orders made under section 48 of POCA as ancillary to a restraint order under section 41.
+As Lord Toulson explains, an order for the receiver to recover his expenses in the usual way from the assets which he is directed to administer cannot be disproportionate for the reasons held by the majority of the Court of Appeal.
+The mere fact that an order is set aside on appeal does not mean that it violates the principle of legality; if it did, there would be a breach of one or other of the qualified articles of the ECHR wherever they were engaged and there was a successful appeal.
+Nor, generally, will there be any question of a restraint or receivership order being disproportionate when made against the assets of a defendant (in which term POCA includes for this purpose an alleged offender under a criminal investigation: see section 40(9)), providing that there is reasonable cause to believe that he has benefited from criminal conduct.
+When it comes to assets which turn out to belong to a third party, the question whether an order for the receiver to recover his expenses from them is or is not disproportionate will depend on the circumstances.
+A restraint order under section 41, and thus a receivership order under section 48, must be made against realisable property.
+Such property is defined in section 83; it consists of free property held by the defendant, or by the recipient of a tainted gift.
+At the interim stage of an application for either form of order, the true ownership of assets may not be known, especially (but not only) where a defendant has taken steps to obscure the true position.
+So the test is that a good arguable case exists for believing that the defendant has an interest in them: Crown Prosecution Service v Compton [2002] EWCA Civ 1720.
+On the findings of the Court of Appeal in February 2011, which were not in question before this court, the present is a strong case of disproportion.
+There was simply never any proper basis advanced for the contention that the assets of these trading companies were the property of the controlling directors, who were the alleged offenders.
+The inclusion of the company assets in the restraint and receivership orders was based on nothing more than a bald request to lift the corporate veil.
+But no proper basis for doing so was advanced.
+It was not being contended that the companies were suspected of being parties to the crimes under investigation, in which event they would themselves have been alleged offenders and their assets might have been apt for restraint if there were grounds for believing that they had benefited from criminal conduct.
+The companies were, on the prosecutions own case, businesses with substantial legitimate trading, so there could be no suggestion that they were sham entities concealing true ownership of their apparent assets by the suspected directors.
+It does not seem to have been suggested that the companies were used to evade the legal responsibility of the directors for any crimes suspected.
+Nor, on the findings of the Court of Appeal, was there any arguable case that they were being used by the directors to channel the benefits of crime to themselves.
+Other cases of assets which turn out to belong to third parties must be decided on their own facts.
+If the original order was made when there was indeed a good arguable case for believing that the defendant under investigation had an interest in them, then the fact that it later turns out that he had none will not normally mean that the usual route for a receiver to recover his expenses is disproportionate to the legitimate aim of confiscation legislation to preserve assets which may be needed to satisfy a confiscation order if conviction ensues.
+If an order was thus made, it does not seem likely that its subsequent setting aside on grounds such as that ownership turns out to be other than it appeared, or that the expense of receivership is not, on closer inspection, justified, would lead to a finding of disproportion.
+Underhill Js remarks about the closeness of the connection between the defendant and the third party are, on proper analysis, not independent tests of when an order can be made, but reflect a factor which may well be highly relevant to whether there is a good arguable case for believing that the assets are ones in which the defendant has an interest.
+I respectfully endorse Lord Toulsons remarks at para 122.
+Restraint (and occasionally receivership) orders may be very valuable in promoting the aims of POCA, which may otherwise all too easily be evaded by alleged offenders once they know that they are under investigation.
+But such orders are also capable of causing considerable loss to the holders of assets.
+Applicant prosecutors, and judges asked to make such orders, need to think constructively and critically about what is being alleged and who is said to be a party to it, and also about the balance between the benefits and the costs of the orders sought.
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+This is a remarkable case in more than one respect.
+The appeal depends upon whether the Court is bound to stay action 2006 Folio 815 (the 2006 proceedings) under Article 27 of Regulation 44/2001 of the Council of the European Union (the Regulation) and, if not, whether it should do so under Article 28.
+Before Burton J (the judge), the respondents expressly disclaimed any intention to rely upon Article 27 but relied upon Article 28 in support of a submission that the court should stay the 2006 proceedings in favour of proceedings in Greece.
+The judge refused to grant a stay and gave summary judgment for the appellants against the respondents.
+The judge granted the respondents permission to appeal to the Court of Appeal on various grounds, including a ground based on Article 27.
+The Court of Appeal (Longmore, Toulson and Rimer LJJ) held that it was bound to stay the action under Article 27.
+It also gave some consideration to Article 28 but held that it was not necessary to reach a final conclusion in that regard because of its decision under Article 27.
+It declined to consider the issues relevant to summary judgment on the ground that, if there was to be a stay, those issues should be determined by the courts in Greece.
+The facts and the 2006 proceedings
+I can take the relevant events from the judgment of Longmore LJ in the Court of Appeal.
+He in turn took them from the judgment of the judge.
+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).
+They made a claim against their insurers, who denied liability on the basis that the vessel was unseaworthy with the privity of the assured, namely Starlight.
+The insurers also said that Starlight had failed properly to report and repair damage to the vessel in accordance with Class Rules.
+Starlight, through their solicitors Messrs Ince & Co, made a number of
+serious allegations against the insurers which fell into two categories, as summarised by Longmore LJ at para 4: (1) allegations of misconduct by the insurers and their underwriters involving alleged tampering with and bribing of witnesses, in particular the bosun, a Mr Miranda, to give false evidence, coupled with other allegations of spreading false and malicious rumours (described for some reason as malicious scuttlebutt) against Starlight in the course of purported investigation of their claims; and (2) deliberate failure by the insurers to pay up under the policy, said to have had consequential financial impact upon Starlight, and to have led to substantial recoverable loss and damage.
+The insurers also relied upon material non disclosure.
+Those allegations were made before the issue of proceedings and, in particular, in a letter dated 18 July 2006 from Ince & Co to the insurers solicitors, who were Hill Dickinson LLP, then Hill Taylor Dickinson, whom I will together call HD.
+On 15 August 2006 Starlight issued the 2006 proceedings in the Commercial Court against various insurers.
+The first four defendants have been described as the Company Market Insurers (CMI) and the fifth to seventh defendants as the Lloyds Market Insurers (LMI).
+The policies issued by both the CMI and the LMI contained exclusive jurisdiction clauses.
+They provided for English law and each party expressly agreed to submit to the exclusive jurisdiction of the Courts of England and Wales.
+Overseas Marine Enterprises Inc (OME) were identified in the policies as managers.
+In paras 5 to 8 of his judgment Longmore LJ spelled out in some detail
+issues between the parties in the 2006 proceedings.
+It is plain that the points raised by Ince & Co to which I have referred were both pleaded and central to the issues between the parties in those proceedings.
+Thus, in para 7 Longmore LJ referred to a witness statement in which Mr Crampton of Lax & Co, who were now acting for Starlight, asserted that the allegations made by the insurers in defence of the claim were based on false evidence which they had obtained from the bosun.
+He also relied upon significant payments said to have been made to the bosun on behalf of the insurers in this connection.
+In addition, a witness statement was introduced in support of a proposed
+amendment of the claim form alleging that Starlight had sustained losses beyond the measure of indemnity in the relevant policy.
+It was alleged that, but for the failure of the insurers to pay under the policy, Starlight would have purchased a replacement vessel and had lost between US$ 45 million and US$ 47.7 million by way of increased capital cost and chartering losses.
+However, on 14 December 2007, Tomlinson J refused to allow the amendment on the basis of the decision of the Court of Appeal in Sprung v Royal Insurance [1999] Lloyds Rep IR 111, approving the decision in The Italia Express (no. 2) [1992] 2 Lloyds Rep 281.
+As Longmore LJ explained in para 1, as a matter of English law, an insurer commits no breach of contract or duty sounding in damages for failure promptly to pay an insurance claim.1 The law deems interest on sums due under a policy to be adequate compensation for late payment; this is so, even if an insurer deliberately 1 Toulson LJ noted at paras 74 and 75 that the present state of English law was criticised by the Law Commission and the Scottish Law Commission in para 2.87 of a joint consultation paper on Insurance Law; Post Contract Duties (LCCP201/SLCDP152) published on 20 December 2011.
+The Commissions have provisionally proposed that the law should be reformed. withholds sums which he knows to be due under a policy.
+If parties agree that English law is to apply to a policy of insurance, this principle is part of what they have agreed.
+English law, moreover, gives no separate contractual remedy to an insured who complains that an insurer has misconducted himself before settling a claim.
+In either case the remedy of the insured is to sue the insurer and, if no settlement is forthcoming, proceed to judgment.
+The trial was fixed for 14 January 2008.
+The settlements
+On 13 December 2007, which was the day before the hearing before Tomlinson J referred to above, the 2006 proceedings had been settled between Starlight and OME and the LMI for 100% of the claim, but without interest and costs, in full and final satisfaction of the claim.
+It was a term of the settlement agreement that Starlight would obtain a stay by way of a Tomlin Order, and a Tomlin Order by consent between Starlight and the LMI was accordingly made on 20 December 2007, backdated to 14 December, in these terms: Save for the purposes of carrying into effect the terms agreed between the Claimant and the Fifth to Seventh Defendants, all further proceedings between the Claimant and the Fifth to Seventh Defendants shall be stayed with effect from 14 December 2007 or such earlier date as may be agreed between the parties or otherwise ordered hereafter.
+A similar settlement agreement dated 3 January 2008 was made between Starlight and OME and the CMI and a similar Tomlin Order was made on 7 January 2008, but with immediate effect.
+In each settlement agreement the Assured were defined as being [OME] and Starlight as Managers and/or Owners and/or Associated and/or Affiliated Companies for their respective right and interest in the ship Alexandros T.
+The CMI settlement agreement then provided: 1.
+Each Underwriter agrees to pay on or before 18 January 2008 their due proportions of the sum of US$16m being 100% of their due proportions of the sum insured being 50% of the US$32m without interest or costs. 2.
+The Assured and Claimant agree to accept the EURO equivalent of each Underwriters due proportion of US$16m in full and final settlement of all and any claims it may have under Policy No 302/CF 000220Z against the Underwriters in relation to the loss of Alexandros T, including all claims for interest and costs (including in respect of all costs orders made to date in the proceedings) but without effect to any other insurance policy in which each Underwriter may be involved. 3.
+The Assured and Claimant agree to Indemnify each Underwriter against any claim that might be brought against it by any of the Assureds or the Claimant's associated companies or organisations or by any mortgagee in relation to the loss of Alexandros T or under Policy No 302/CF000220Z. 4.
+Following the signing of this agreement, and in consideration of the promises herein, the Claimant and the Underwriters will apply to stay the Proceedings as against the Underwriters, the Proceedings to be stayed for all purposes save for the purposes [of] carrying the terms agreed herein into effect, such stay to have effect from the first obtainable date after 27 December 2007 5.
+Following the due and proper payment by the Underwriters of the amount specified in paragraph 1 above, the Assured and Claimant and the Underwriters agree to file a consent order dismissing the Proceedings, with no order as to costs. 6.
+This agreement is subject to English law and to the exclusive jurisdiction of the High Court in London. 2.
+The underwriters agree to pay on or before 24 December 2007 the sum of US$8M being 100% of their due proportions of the sum insured being 25% of US$32m without interest or costs 3.
+The Assured and claimant agree to accept the EURO equivalent of US$8M in full and final settlement of all and any claims it may have under Policy No against the Underwriters signing below in relation to the loss of Alexandros T 4.
+The Assured and Claimant agree to indemnify the underwriters signing below against any claim that might be brought against them by any of the Assureds or the Claimant's associated companies or organisations or by any mortgagee in relation to the loss of
+Alexandros T or under Policy
+The LMI settlement agreement provided in similar but not identical terms: 5.
+This agreement is subject to English law and the jurisdiction of the High Court of London.
+The Greek proceedings
+After setting out the terms of the settlement agreements, Longmore LJ wryly observed at the end of para 12 of his judgment that one might have expected that to be that, but it was not to be.
+He described what then happened in paras 13 to 15.
+More than three years later, in April 2011, nine sets of Greek proceedings, in materially identical form, (Greece 1), were issued by Starlight, by OME, by their co assureds under an associated Fleet Policy and by individual officers of those companies, against the LMI and the CMI, some of their employees or underwriters, and HD and some of their partners and employees (the HD defendants).
+The claims are for compensation for loss of hire and loss of opportunity by Starlight totalling approximately US$ 150 million and for pecuniary compensation due to moral damage amounting to 1 million.
+The claims also include similarly substantial claims by the other claimants in respect of alleged acts, all done unlawfully and in breach of good faith for the alleged purpose of avoiding the performance by the defendants of their legal obligations.
+All the claims rely upon breaches of the Greek Civil and Criminal Code.
+However the factual allegations, which Longmore LJ noted had been said by the judge to be entirely familiar, include the allegation that the appellants were responsible for using false affidavits of witnesses (primarily Mr Miranda) with intention to harm the claimants, described thus by Mr Crampton in a statement summarising the Greek claims: The underwriters pursued this criminal effect by intentionally fabricating false evidence with the purpose that the underwriters (who were responsible for the payment of insurance indemnity for the vessel) avoid paying this insurance indemnity, contrary to their contractual obligations and their legal obligations and in particular contrary to the provisions of the insurance contract, providing for the timely payment of the insurance indemnity.
+They also include the claim that the appellants were asserting and disseminating false information to third parties, although they were aware of their falsity, damaging the claimants reputation and credibility with the purpose that the underwriters (who were responsible for the payments of the insurance indemnity for the vessel) avoid paying the insurance indemnity, contrary to their contractual obligation and their legal obligation and in particular contrary to provisions of the insurance contract providing for the timely payment of the insurance indemnity Mr Crampton then turned to what he called the [i]ntentional fabrication of false evidence for defrauding the English court and [t]he moral instigation alternatively complicity of the underwriters to perjury and on the defrauding of the court by the underwriters.
+He summarised the position in this way in paragraph 20 of his witness statement: The essence of the complaint against the Defendants in the Greek proceedings concerns the allegation that the Defendants obtained false evidence in Greece from the bosun of the Alexandros T, Aljess Miranda This evidence was then deployed in these proceedings in England and also in the Greek proceedings.
+There is a substantial section of the Greek pleadings relating to the financial consequences of the failure by the insurers to comply with their obligations under the policy and the way in which they allegedly handled the investigations.
+In a further set of proceedings, known as Greece 2, two additional heads of loss are claimed by Starlight and OME, arising out of substantially the same allegations.
+As Longmore LJ put it in para 15, in apparent recognition of the problem raised by the fact that such claims had either not been brought in England or had been ruled out as a matter of English law by Tomlinson J, Mr Crampton, in paragraph 27 of his witness statement, explained that the claims are advanced in two ways in the Greek pleadings: first, that as a result of the underwriters intention to avoid payment of the insurance indemnity, eventually resulting in late payment of the policy proceeds, the claimants missed the opportunity to use the policy proceeds to invest in three vessels (not just the one referred to in the 2006 proceedings); and, secondly, that, as a result of the defendants actions in acquiring the false evidence of Mr Miranda, his clients were not able to insure the vessels and without insurance they would not have been able to trade them and could not purchase them.
+He stated that his clients would amend their pleadings prior to the hearing of the disputes in Greece so as to clarify this head of claim, such that no claim is made in respect of the late payment of the policy proceeds.
+The expert evidence from the defendants is that it is not possible to amend the pleadings in the Greek courts, but, treating the proposed draft amendment, which he exhibited, as a clarification, it did not seem to the judge that it in any way cured the defect, if defect there was.
+It is further said that the insurance of the three potential new vessels was rendered impossible, since all the London insurers refused to quote for the vessels because of the refusal of the defendant underwriters to quote for them and because of the defamatory accusations spread as to the unseaworthiness of the Alexandros T.
+All these allegations arise out of the alleged manner in which the defendants handled Starlight's claim in respect of the Alexandros T, and, even though the consequences and the consequential losses have expanded, and the claim for moral damages has been included, and although it seems that Starlight now rely on an expanded affidavit of Mr Miranda, the allegations, even though put into the context of Greek law, were said by the judge to be materially identical to those made prior to the settlement agreement.
+The acts complained of are all said to have constituted delicts under Greek law akin to the torts of defamation and malicious falsehood under English law.
+The present position
+Since the issue of the Greek proceedings, as Longmore LJ explained in para 16 (and the judge at his para 14), the insurers have taken further steps and brought further proceedings in England as follows.
+By applications issued in the 2006 proceedings on 25 July and 3 August 2011, the CMI and the LMI respectively sought, pursuant to the Tomlin Orders (if necessary after lifting the stay imposed by them) summary relief pursuant to CPR Part 24 by way of declarations and damages against Starlight.
+The LMI, because permission was given to them to join OME as a third party, also sought summary relief pursuant to Part 24 against OME (which filed an acknowledgment of service and a defence) to enforce the LMI settlement agreement, to which it also was a party.
+In addition, fresh proceedings (2011 Folio 702) were commenced by the LMI, without prejudice to their case that sufficient relief could and would be obtained in the 2006 proceedings, against both Starlight and OME, and, after an acknowledgment of service and defence were filed, an application was made under Part 24 for similar relief to the claim in the 2006 proceedings.
+The LMI also brought fresh proceedings (2011 Folio 1043) against Starlight's co assured and, again after acknowledgments of service and defence had been filed, sought declaratory relief and damages for breach of the exclusive jurisdiction clause in their insurance policies, by virtue of the issue of the Greek proceedings by those co assured.
+Also in fresh proceedings (2011 Folio 894), the CMI brought claims against OME and the same co assured in respect of similar claims for breach of the exclusive jurisdiction clause in the policy, and in respect of OME by reference to breach of the terms of the settlement agreement.
+Judgment in default was entered by the CMI against all those defendants on 26 October (amended on 14 November) 2011.
+Those proceedings are not the subject of this appeal and no issue therefore currently arises with respect to them.
+Finally, and by separate application, the HD defendants were joined as defendants in the 2006 proceedings so that, in due course, they too might be able In summary, the claims made in the various proceedings are these. to claim relief by seeking declaratory relief within the original proceedings.
+Starlight and their associates applied to stay both the 2006 proceedings in their current form and 2011 Folios 702 and 1043.
+(a) The 2006 proceedings. (1) The CMI claim against Starlight and, through Part 20 proceedings, against OME (i) a declaration that the Greek claims fall within the terms of the release in the CMI settlement agreement; (ii) a declaration that the bringing of the Greek claims was a breach of the release in the settlement agreement; (iii) damages for breach of the release in the settlement agreement; (iv) a declaration that the bringing of the Greek claims was a breach of the jurisdiction clauses in the settlement agreement and the policies; (v) damages for breach of the jurisdiction clauses in the policies and CMI settlement agreement; and (vi) an indemnity under clause 3 of that agreement in respect of claims brought by Starlight and/or its associated companies in the various Greek proceedings; (2) the LMI claim against Starlight (i) declarations that the LMI settlement agreement settles any claim against them by Starlight in respect of the loss of the Alexandros T and covers Starlights claims in the Greek proceedings (para 3); (ii) a declaration that Starlight is in breach of that agreement in bringing the Greek proceedings; (iii) damages for breach of the settlement agreement; and (iv) a declaration that the agreement entitles the LMI to an indemnity against Starlight in respect of the matters covered by the indemnity, which includes all claims by Starlight and its associated companies in the Greek proceedings; and (3) the LMI claims against OME by Part 20 proceedings: (i) like relief to that which the LMI claim against Starlight, as summarised above; and possibly (ii) damages for breach of the exclusive jurisdiction clause in the policy, although this claim is not repeated among the prayers. (b) Action 2011 Folio 702.
+The LMI claim against Starlight and OME: (i) declarations that the LMI settlement agreement settles any claim against them by Starlight and/or OME in respect of the loss of the Alexandros T and covers Starlights and/or OMEs claims in the Greek proceedings; (ii) damages for breach of that agreement; (iii) damages for breach of the jurisdiction clause in the policy; and (iv) damages for breach of the jurisdiction clause in the settlement agreement. (c) Action 2011 Folio 1043.
+The LMI claim against five of Starlights co assureds for breach of their policy jurisdiction clauses.
+The decisions of the judge and the Court of Appeal
+The insurers sought to enforce the settlement agreements referred to in the Tomlin Orders and, in a judgment handed down on 19 December 2011, having refused a stay under Article 28, the judge held that they were entitled to summary judgment for (inter alia) a declaration that the matters sought to be raised in Greece were part of the settlement of the claim and that Starlight (and OME) are bound to indemnify the insurers against any costs incurred and any sums that may be adjudged against them in the Greek proceedings.
+As stated above, the Court of Appeal held that it was bound to stay the 2006 proceedings and 2011 Folio 702 and 1043 under Article 27, made no final determination of the position under Article 28 and declined to consider the issues of summary judgment.
+The Court of Appeal also held that it was not too late for the respondents to rely upon Article 27 or Article 28.
+The issues
+In this Court the appellants challenge the correctness of the Court of
+Appeals conclusion under Article 27 and, on the respondents cross appeal, submit that the judge was correct to refuse a stay under Article 28.
+If the appellants succeed under both articles, the case will have to be remitted to the Court of Appeal to consider the respondents appeal from the summary judgment granted by the judge.
+Article 27
+The questions for decision under Article 27 are whether, in the events which happened, the Court of Appeal was wrong to hold that it was not too late for the respondents to rely upon Article 27, whether the proceedings in Greece and the proceedings in England involve the same cause of action, whether they are between the same parties and which court was the court first seised.
+For reasons which will appear, I will defer consideration of the too late point until after consideration of the other issues.
+Article 27 must be construed in its context.
+The immediate context of Articles 27 and 28 is that they form part of Section 9 of Chapter II of the Regulation, which must be read in the light of Recitals 2 and 15 of the preamble.
+It is apparent from Recital 2 that the Regulation aims, in the interests of the proper functioning of the internal market, to put in place: Provisions to unify the rules of conflict of jurisdiction in civil and commercial matters and to simplify the formalities with a view to rapid and simple recognition and enforcement of judgments from Member States bound by this Regulation.
+Recital 15 provides: In the interests of the harmonious administration of justice it is necessary to minimise the possibility of concurrent proceedings and to ensure that irreconcilable judgments will not be given in two Member States.
+There must be a clear and effective mechanism for resolving cases of lis pendens and related actions and for obviating problems flowing from national differences as to the determination of the time when a case is regarded as pending.
+For the purposes of this Regulation that time should be defined autonomously.
+The mechanism referred to in Recital 15 is provided by Section 9 of Chapter II of the Regulation, which includes Articles 27 and 28: Section 9 Lis pendens related actions Article 27 1.
+Where proceedings involving the same cause of action and between the same parties are brought in the courts of different member states, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. 2.
+Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.
+Article 28 1.
+Where related actions are pending in the courts of different member states, any court other than the court first seised may stay its proceedings. 2.
+Where these actions are pending at first instance, any court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof. 3.
+For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.
+Article 29 Where actions come within the exclusive jurisdiction of several courts, any court other than the court first seised shall decline jurisdiction in favour of that court.
+Article 30 For the purposes of this Section, a court shall be deemed to be seised: 1. at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have service effected on the defendant, or 2. if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have the document lodged with the court."
+The Regulation is the successor to the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 (the Brussels Convention), in which the equivalent provisions to Articles 27 and 28 were Articles 21 and 22 respectively.
+The Court of Justice of the European Union (the CJEU) has held that the principles developed in its case law with regard to Articles 21 and 22 of the Brussels Convention apply equally to Articles 27 and 28 of the Regulation: see Folien Fischer AG v Ritrama SpA (Case C 133/11) [2013] QB 523 at paras 31 and 32.
+The CJEU was of course previously the European Court of Justice (ECJ).
+Although some of the decisions to which I refer were made by the ECJ, for simplicity I will refer to all the European decisions as those of the CJEU.
+The CJEU has laid down a number of general principles which are of some importance.
+They include the important principle that a court in a Member State must not grant an anti suit injunction to restrain the bringing or continuing of proceedings in another Member State, whether to restrain an abuse of process or to restrain proceedings brought or continued in breach of an exclusive jurisdiction clause: see eg Turner v Grovit (Case C 159/02) [2005] 1 AC 101 and West Tankers Inc v Allianz SpA (The Front Comor) (Case C 185/07) [2009] 1 AC 1138.
+They also include the following, with specific reference to Articles 27 and
+First, 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: Gubisch Maschinenfabrik KG v Palumbo (Case C 144/86) [1987] ECR 4861 at para 8.
+Second, the objective of Article 28 is to improve co ordination of the exercise of judicial functions within the European Union and to avoid conflicting and contradictory decisions, thus facilitating the proper administration of justice: see eg The Tatry (Case C 406/92) [1999] QB 515 at paras 32, 52 and 55 and Sarrio SA v Kuwait Investment Authority [1999] 1 AC 32, per Lord Saville at 39F H. The CMI claims: same causes of action? 28.
+It is convenient to consider first the position of the CMI claims.
+The first specific question is whether the 2006 proceedings involve the same cause or causes of action as the Greek proceedings, by which I mean Greece 1 and Greece 2.
+The principles of EU law which are relevant to the determination of this question are in my opinion clear.
+They have been considered in a number of cases in the CJEU and are essentially as submitted on behalf of the CMI.
+They may be summarised in this way. i) ii) iii) iv) The phrase "same cause of action" in Article 27 has an independent and autonomous meaning as a matter of European law; it is therefore not to be interpreted according to the criteria of national law: see Gubisch at para 11.
+In order for proceedings to involve the same cause of action they must have "le mme objet et la mme cause".
+This expression derives from the French version of the text.
+It is not reflected expressly in the English or German texts but the CJEU has held that it applies generally: see Gubisch at para 14, The Tatry at para 38 and Underwriting Members of Lloyds Syndicate 980 v Sinco SA [2009] Lloyd's Rep IR 365, per Beatson J at para 24.
+Identity of cause means that the proceedings in each jurisdiction must have the same facts and rules of law relied upon as the basis for the action: see The Tatry at para 39.
+As Cooke J correctly stated in JP Morgan Europe Ltd v Primacom AG [2005] 2 Lloyd's Rep 665 at para 42, The expression 'legal rule' or 'rule of law' appears to mean the juridical basis upon which arguments as to the facts will take place so that, in investigating 'cause' the court looks to the basic facts (whether in dispute or not) and the basic claimed rights and obligations of the parties to see if there is co incidence between them in the actions in different countries, making due allowance for the specific form that proceedings may take in one national court with different classifications of rights and obligations from those in a different national court.
+Identity of objet means that the proceedings in each jurisdiction must have the same end in view: see The Tatry at para 41, Gantner Electronic GmbH v Basch Exploitatie Maatschappij BV (Case C 111/01) [2003] ECR I 4207 at para 25, Primacom at para 42 and Sinco at para 24. v) The assessment of identity of cause and identity of object is to be made by reference only to the claims in each action and not to the defences to those claims: see Gantner at paras 24 32, where the CJEU said this in relation to Article 21 of the Brussels Convention: . in order to determine whether two claims brought between the same parties before the courts of different Contracting States have the same subject matter, account should be taken only of the claims of the respective applicants, to the exclusion of the defence submissions raised by a defendant.
+See also to similar effect Kolden Holdings Ltd v Rodette Commerce Ltd [2008] 1 Lloyd's Rep 434, per Lawrence Collins LJ at para 93 and Research in Motion UK Ltd v Visto Corporation [2008] 2 All ER (Comm) 560, per Mummery LJ at para 36. vi) It follows that Article 27 is not engaged merely by virtue of the fact that common issues might arise in both sets of proceedings.
+I would accept the submission on behalf of the CMI that this is an important point of distinction between Articles 27 and 28.
+Under Article 28 it is actions rather than claims that are compared in order to determine whether they are related. vii) After discussing Gubisch, The Tatry, Sarrio, The Happy Fellow [1998] 1 Lloyds Rep 13 and Haji Ioannou v Frangos [1999] 2 Lloyds Rep 337, Rix J summarised the position clearly and, in my opinion, accurately in Glencore International AG v Shell International Trading and Shipping Co Ltd [1999] 2 Lloyds Rep 692 at 697: It would appear from these five cases, of which the first two were in the European Court of Justice, and the latter three in the domestic Courts of England, that, broadly speaking, the triple requirement of same parties, same cause and same objet entails that it is only in relatively straightforward situations that art 21 bites, and, it may be said, is intended to bite.
+After all, art 22 is available, with its more flexible discretionary power to stay, in the case of related proceedings which need not involve the triple requirement of art 21.
+There is no need, therefore, as it seems to me, to strain to fit a case into art 21.
+The European Court, when speaking in Gubisch (at para 8) of the purpose, in the interests of the proper administration of justice within the European Community, of preventing parallel proceedings in different jurisdictions and of avoiding in so far as it is possible and from the outset the possibility of irreconcilable decisions, was addressing arts 21 and 22 together, rather than art 21 by itself.
+Thus a prime example of a case within art 21 is of course where party A brings the same claim against party B in two jurisdictions.
+Such a case raises no problem.
+More commonly, perhaps, the same dispute is raised in two jurisdictions when party A sues party B to assert liability in one jurisdiction, and party B sues party A in another jurisdiction to deny liability, or vice versa.
+In such situations, the respective claims of parties A and B naturally differ, but the issue between them is essentially the same.
+The two claims are essentially mirror images of one another.
+Gubisch and The [Tatry] are good examples of this occurrence.
+On the other hand, Sarrio v KIA is a case where the same claimant was suing the same defendant on different bases giving rise to different issues and different financial consequences, and where liability on one claim did not involve liability (or non liability) on the other.
+Haji Ioannou v Frangos illustrates the situation where even though the cause is the same, and even though there is some overlap in the claims and issues, nevertheless different claims, there the proprietary claim to trace, may raise sufficiently different issues of sufficient importance in the overall litigation for it to be concluded that the objet differs.
+The authority of The Happy Fellow at first instance may be somewhat shaken by the reservations expressed by Lord Justice Saville on appeal, but it too may be said to illustrate the process of analysing the claims and issues in the respective proceedings to identify whether they are the same.
+Where, for instance, there is no dispute over a shipowners right to limit should he be found liable (a separate question, which need not even be resolved at the time when a limitation action is commenced or a decree given), I do not for myself see why it should be held that the liability action and the limitation action involve the same cause of action for the purposes of art 21.
+How do these principles provide an answer to the question whether the 2006 proceedings involve the same cause or causes of action as the Greek proceedings? It is necessary to consider the claims advanced by the CMI and the LMI separately and, in the case of each cause of action relied upon, 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.
+The essential question is whether the claims in England and Greece are mirror images of one another, and thus legally irreconcilable, as in Gubish and The Tatry, in which case Article 27 applies, or whether they are not incompatible, as in Gantner, in which case it does not.
+Thus in Gantner a claim for damages for repudiation of a contract and a claim for the price of goods delivered before the repudiation could both have succeeded and the fact that a set off of the damages would make the price less beneficial to the seller did not make them incompatible.
+And in Maersk Olie & Gas A/S v Firma M de Haan en W De Boer (Case C 39/02) [2004] ECR I 9657 owners of a vessel which damaged a pipeline (owned by Maersk) sought a declaration that they were entitled to limit their liability under the 1957 International Convention relating to the Limitation of Liability of Owners of Sea going Ships and the Dutch legislation that gave effect to it and that a limitation fund be established.
+Maersk subsequently commenced proceedings in Denmark claiming compensation for damage to the pipeline.
+The CJEU held that the causes of action were not the same: see paras 35 to 39.
+The CJEU underlined both the principle in Gantner that account should be taken only of the claims and not of the defences advanced and the principle in The Tatry that the cause of action comprised both the facts and the legal rule invoked as the basis of the application.
+It held on the facts, at para 38, that: the unavoidable conclusion is that, even if it be assumed that the facts underlying the two sets of proceedings are identical, the legal rule which forms the basis of each of those applications is different.
+The action for damages is based on the law governing non contractual liability, whereas the application for the establishment of a liability limitation fund is based on the 1957 Convention and the Netherlands legislation which gives effect to it.
+The CJEU thus distinguished Gantner and The Tatry on the basis that in those cases, by contrast, the claim brought in the second set of proceedings mirrored that brought in the first set.
+What then is the position on the facts? The CMI advance the claims referred to in para 18 above under three heads, each of which relies upon provisions either of the CMI settlement agreement or the policies.
+It is convenient to consider the claims under the three heads in this order: indemnity, exclusive jurisdiction and release.
+Indemnity claims
+These are based on clause 3 of the settlement agreement set out above.
+The claims are simple.
+By clause 3 the Assured as defined agreed to indemnify the CMI against any claim that might be brought against them by any of the Assureds or the Claimants associated companies or organisations or by any mortgagee in relation to the loss of Alexandros T or under the relevant policy.
+The CMI say that the Greek proceedings are in respect of such claims and that they are entitled to be indemnified against the consequences of those proceedings.
+They say that that claim under clause 3 does not give rise to the same claim or cause of action as any claim or cause of action in the Greek proceedings.
+They say that, on the contrary, it assumes that the Greek proceedings will proceed and that the claimants in Greece may succeed.
+I would accept that submission.
+In my opinion, 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.
+As to cause, the subject matter of the two claims is different.
+The former are claims in tort (or its Greek equivalent) and the claim for an indemnity is a claim in contract.
+As to object, that of the Greek proceedings is to establish a liability under Greek law akin to tort, whereas, as for example in the case of a claim on an insurance policy, the object of the CMIs claim is to establish a right to be indemnified in respect of such a liability.
+Further, whereas Starlight and its co assureds and the individual officer claimants in the Greek proceedings are seeking each to recover its or his own loss, the indemnity clause will, if the indemnity claim is otherwise good, entitle the CMI to recover from Starlight not just any sum awarded in Greece to Starlight, but also any sums awarded to any of Starlights co claimants.
+So the object of the English indemnity claim against Starlight differs from, and is in fact much wider than, the object of Starlights claim in the Greek proceedings.
+Moreover, the claim for an indemnity in the 2006 proceedings in England does not interfere in any way with the Greek proceedings or vice versa.
+There is no attempt in Greece to impugn the settlement agreements or the indemnity agreements contained in them.
+The respondents do not assert, for example, that the indemnities do not apply to some or all of the Greek claims.
+I would determine this point in favour of the CMI on this simple basis.
+The CMIs cause of action for an indemnity under clause 3 of the settlement agreement is not the same cause of action as any of the causes of action relied upon in Greece, which are tortious.
+The respective causes of action have neither the same object (le mme objet) nor the same cause (la mme cause).
+Exclusive jurisdiction clauses
+The same is in my opinion true of the CMIs claims that the respondents have brought the proceedings in Greece in breach of the exclusive jurisdiction clauses in the settlement agreement and/or in the insurance policies.
+Clause 6 of the settlement agreement expressly provides that it is subject to English law and the exclusive jurisdiction of the High Court in London.
+The CMI say that, in bringing the Greek proceedings, the respondents are in breach of clause 6 and that they are entitled to damages as a result.
+They do not seek an anti suit injunction to restrain the Greek proceedings.
+They simply seek a declaration that the claims brought by Starlight and OME in Greece 1 and Greece 2 fall within the scope of the settlement agreement.
+Moreover the respondents do not assert in the Greek proceedings that the settlement agreements do not preclude the bringing of their claims in Greece.
+It may be that the reason they do not advance that argument is that they would be met with the response that a dispute as to the meaning and effect of the settlement agreements is subject to the English jurisdiction clause so that the court in Greece would have to decline jurisdiction.
+However that may be, they do not in fact advance the argument.
+It follows that in this respect too the Greek proceedings are not the mirror image of the English proceedings or vice versa and that the cause or causes of action based on an alleged breach of clause 6 of the CMI settlement agreements are not the same cause or causes of action as are advanced by the respondents in Greece.
+They do not have le mme objet et la mme cause.
+As I see it, the position is the same in the case of the alleged breach of the exclusive jurisdiction clauses in the insurance policies.
+There is an established line of cases in England to the effect that claims based on an alleged breach of an exclusive jurisdiction clause or an arbitration clause are different causes of action from claims for substantive relief based on a breach of the underlying contract for the purposes of Article 21 of the Brussels Convention and Article 27 of the Regulation: see eg Continental Bank NA v Aeakos Compania Naviera SA [1994] 1 WLR 588 per Steyn LJ (giving the judgment of the Court of Appeal) at 595H 596C; Alfred C Toepfer International GmbH v Molino Boschi Sarl [1996] 1 Lloyds Rep 510 per Mance J at 513; Toepfer International GmbH v Socit Cargill France [1997] 2 Lloyds Rep 98, per Colman J at 106; Sinco per Beatson J at paras 50 and 54; and WMS Gaming Inc v Benedetti Plus Giocolegale Ltd [2011] EWHC 2620 (Comm) per Simon J at para 32.
+Those cases support the conclusion that the claims of the CMI in the 2006 proceedings for breach of the exclusive jurisdiction clauses in the insurance policies (or indeed in the settlement agreement) do not involve the same cause or causes of action within the meaning of Article 27 as the respondents claims in (or akin to) tort in the Greek proceedings.
+I understand that this point has been reserved for decision by the Court of Appeal but, as I see it at present, nothing in the relief sought by the CMI offends the principle of mutual trust and confidence which underlies the Regulation: see eg Erich Gasser GmbH v MISAT Srl (Case C 116/02) [2005] QB 1.
+The CMI do not seek to stop the Greek proceedings or to restrain Starlight and OME from pursuing them.
+They merely seek declarations as to the true position under the settlement agreements which are both governed by English law and subject to the exclusive jurisdiction of the English courts and under the clauses in the insurance contracts which also provide for the exclusive jurisdiction of the English courts.
+This has the advantage that the courts with exclusive jurisdiction decide what is the true meaning of the settlement agreements and the jurisdiction clauses.
+Release
+The same is also, in my opinion, true of the claims based on what are called the release provisions in the CMI settlement agreement.
+It is said that the provision that the sums agreed to be paid under the CMI settlement agreement are to be paid in full and final settlement of all and any claims it may have under the policy precludes the payment of any further sums arising out of the loss of the vessel insured.
+It is said that, in the light of the agreement, the CMI are entitled to a declaration that the Greek claims fall within the terms of the agreement, that they are entitled to a declaration that the bringing of those claims is a breach of the agreement and that they are entitled to damages for that breach.
+The question is whether these claims involve le mme objet et la mme cause as the claims in the Greek proceedings.
+In my opinion they do not for the same reasons as in the case of the claims for an indemnity and the claims arising out of the exclusive jurisdiction clauses.
+The Greek claims are claims in tort and these are contractual claims.
+The factual bases for the two claims are entirely different.
+Moreover the object of the two claims is different.
+This is to my mind clear in the case of the claims for damages for breach of the release provisions in the settlement agreements and for a declaration that the bringing of the Greek claims is a breach of the settlement agreement.
+The nature of the claims is almost identical to the nature of the claims for breach of the jurisdiction agreements.
+In both cases the alleged breach is the bringing of the claims in Greece.
+Moreover, like the claims for an indemnity, the claim for damages for breach of the settlement agreement assumes that the claims in Greece may succeed.
+Is the position different in respect of the claim for a declaration that the Greek claims fall within the terms of the release in the settlement agreements? In my opinion the answer is no.
+All these claims have the same thing in common.
+It is that the legal basis for the claims in Greece is different from the legal basis of the claims in England.
+In Greece the legal basis for the claims is tortious, whereas in England the legal basis of the claims is contractual.
+It is thus not a case like Gubisch, where, as the CJEU put it at para 15, the same parties were engaged in two legal proceedings in different Contracting States which were based on the same cause of action, that is to say the same contractual relationship.
+The cause was therefore the same.
+Equally the objet of the actions was the same, namely to determine the effect if any of the contract.
+As the CJEU put it at para 16, the action to enforce the contract was aimed at giving effect to it, while the action for its rescission or discharge was aimed precisely at depriving it of any effect.
+The question whether the contract was binding lay at the heart of the two actions.
+That is not true here because the object of the English action is to enforce the contract, whereas the object of the Greek proceedings is to establish a different liability in tort.
+Lord Mance takes a different view in one respect.
+So far as the claims for damages for breach of the releases in the settlement agreements, the claims for a declaration and damages for breach of the jurisdiction clauses and the claims for indemnities are concerned, there is no difference between us.
+However, so far as the claims for a declaration that the Greek claims fall within the terms of the release in the settlement agreements is concerned, Lord Mance takes a different view.
+He notes in para 140 the terms in which the claims are pleaded.
+The formulation in paragraph 18(a) above, which was adopted by the respondents, is in fact derived from the declaration made by the judge.
+However, to my mind nothing turns on this difference.
+Moreover, I do not see that it makes any difference that the respondents discharged their obligations under the settlement agreements.
+The critical point is that on the facts here the legal basis of the claims in tort in Greece is different from the legal basis of the contractual claims in England.
+It is true that, if successful, a declaration that the tortious claims have been settled or released will or may afford the appellants a defence to the Greek proceedings but the cases show that defences are irrelevant.
+Viewed through the perspective of the claims, the two claims are not the mirror image of one another.
+Even if (contrary to my view) the two sets of proceedings had in this respect le mme objet they did not have la mme cause, whereas the cases show that, in order to involve the same cause of action, they must have both le mme objet et la mme cause.
+The position would be different if the CMI were to advance a claim in the English proceedings claiming a declaration that they are not liable to the respondents in Greece.
+That claim would be the mirror image of the claims being brought by the respondents in Greece and would fall within the principles laid down in Gantner and The Tatry.
+In fact, after the judge had delivered his judgment, the CMI did, as I understand it, make an application for such a negative declaration in the light of the fact that Starlight and OME had commenced Greece 2.
+We were told that in the event the application was never determined and that the CMI do not pursue it.
+It has been confirmed that any such claim has now been abandoned.
+For these reasons, subject to a possible reference to the CJEU discussed in paras 58 59 below, I would hold that Article 27 does not apply to any of the causes of action advanced by or against the CMI.
+I appreciate that, in reaching these conclusions I have reached a different
+view from that of the Court of Appeal.
+Before I express my reasons, I should say that I suspect that the focus of the argument in the Court of Appeal was somewhat different from that in this Court.
+The reasons are I think twofold.
+First, in para 40 of his judgment Longmore LJ distinguished Sinco on the basis that the difference between this case and that is that in that case, in contradistinction to this, there was no settlement agreement which could, as he put it, supposedly deny the Greek claimants the right to bring proceedings at all.
+I do not see that as correct.
+As explained above, the CMI do not seek to deny the respondents the right to commence proceedings in Greece but merely say that the causes of action in the two sets of proceedings are different.
+The second point is perhaps more significant.
+In para 46 Longmore LJ correctly notes that the CMIs case is that the bringing of the Greek proceedings is a breach of the jurisdiction clauses in the policies and a breach of the terms of the settlement agreement and, again correctly, states that the primary relief claimed by the CMI in England is a declaration that Starlight will be liable to indemnify the CMI against any costs incurred in the Greek proceedings and any liability in those proceedings.
+I have already given my reasons for concluding that those are different causes of action from the causes of action in tort relied upon by the respondents in Greece.
+They are not a mirror image of one another.
+As I see it, the Court of Appeal treated the question as a broad one focusing on the overall result in each jurisdiction.
+This can be seen from paras 47 to 50 of Longmore LJs judgment.
+In paras 46 and 47 he summarised the claims of both the CMI and the LMI.
+He then said this at paras 48 and 49: 48.
+It is clear that the first 3 paragraphs of the LMI application are in terms an assertion that LMI are not liable in respect of the claims in Greece.
+CMI's allegation that the Greek claimants are in breach of the settlement agreements is in effect a similar assertion.
+It may be said that there are other causes of action in the English proceedings which are not exactly mirror images of the allegations in the Greek proceedings but to the extent that they are not, they are essentially the same in the sense that the key assertion in Greece is that there are non contractual claims and the key assertion in England is that those non contractual claims have been compromised by the settlement agreements.
+The claims for damages and indemnity are in any event parasitic on the central contention that, once a settlement had been reached, all matters in issue had been compromised.
+It is, of course, elementary that Article 27 has regard to causes of action rather than proceedings and that is why it is necessary to concentrate on the allegations relating to the settlement agreement.
+It is certainly the case that there is a considerable risk of inconsistent judgments if one of the sets of proceedings is not stayed and the rationale behind Article 27 therefore favours a stay if the Greek court was the court first seised. 49.
+I therefore conclude that, in so far as the English proceedings assert non liability by reason of the settlement agreements, there is an identity of issues and the respective causes of action are the same.
+To the extent that allegations are made in England that the Greek parties are in breach of the settlement agreements or in breach of the exclusive jurisdiction clauses in either the insurance policy or the settlement agreements themselves (and that they should therefore indemnify the insurers for the cost of the Greek proceedings) they are parasitic and dependent on the basic cause of action in England for a declaration of non liability.
+They cannot proceed in their own right until the underlying question of the ambit of the settlement agreements as a defence to the Greek actions in tort has been resolved.
+In my opinion that analysis is not consistent with the principles laid down
+by the CJEU set out above.
+As already stated, those principles require a comparison of the claims made in each jurisdiction and, in particular, consideration of whether the different claims have le mme objet et la mme cause without regard to the defences being advanced.
+As I see it, Article 27 involves a comparison between the causes of action in the different sets of proceedings, not (as in Article 28) the proceedings themselves.
+In para 48 Longmore LJ recognises that there are causes of action in the English proceedings which are not (as he puts it) exactly mirror images of the allegations in the Greek proceedings but says that, to the extent that they are not, they are essentially the same in the sense that the key assertion in Greece is that there are non contractual claims and the key assertion in England is that those non contractual claims have been compromised by the settlement agreements.
+And at the end of para 49 he says that the claims in England cannot proceed in their own right until the underlying question of the ambit of the settlement agreements as a defence to the Greek action in tort has been resolved.
+I respectfully disagree with that approach.
+It focuses on the nature of the
+settlement agreements as a defence to the Greek action in tort, which the authorities in the CJEU show is irrelevant.
+Given the fact that defences are irrelevant, the analysis cannot involve a broad comparison between what each party ultimately hopes to achieve.
+The analysis simply involves a comparison between the claims in order to see whether they have the same cause and the same object.
+In so far as Andrew Smith J treated the question as a broader one in Evialis SA v SIAT [2003] 2 Lloyds Rep 377 I respectfully disagree with him, although, as Beatson J observed in Sinco at para 50, Evialis was distinguishable on the facts because the insured had brought a substantive claim in the English proceedings in addition to their claim in the Italian proceedings, which rendered the former a mirror image of the latter.
+This case can be distinguished on the same basis, at least in the case of the CMIs claims.
+I also note in connection with Sinco that at para 40 Longmore LJ observed that the difference between that case and this was that in that case there was no settlement agreement which could supposedly deny the right of the Greek claimants to bring proceedings at all.
+For the reasons I have given I would respectfully disagree with that approach.
+A settlement agreement might be a defence to a claim.
+It could not deny the right of the Greek claimants to bring proceedings at all.
+For these reasons I would hold that Article 27 has no application to the case of the CMI.
+Moreover, subject to one point discussed at paras 58 59 below, I would not order a reference to the CJEU on this question because the relevant principles are clearly set out in its jurisprudence and are acte clair.
+In these circumstances, where none of the causes of action in the English proceedings is the same as the causes of action in the Greek proceedings, it is not necessary in the case of the CMI to consider the other issues which might arise, namely the position in relation to other parties and which court was the court first seised for the purposes of Article 27.
+The LMI claims: same causes of action?
+Save possibly for two points, the position of the LMI is essentially the same as in the case of the CMI.
+The first point is that the jurisdiction clause in clause 5 of the LMI settlement agreement differs from that in clause 6 of the CMI settlement agreement in that it does not expressly provide for the exclusive jurisdiction of the High Court in London but merely for the jurisdiction of the High Court in London.
+However, subject to its detailed provisions, Article 23 of the Regulation provides that, where parties have agreed that a court or the courts of a Member State shall have jurisdiction, that court or those courts shall have jurisdiction and, moreover, that such jurisdiction shall be exclusive unless the parties have agreed otherwise.
+The question whether the parties had agreed otherwise was discussed by the judge at paras 19 to 23 of his judgment, where he held that the parties had not agreed otherwise and that clause 5 of the LMI was an exclusive jurisdiction clause.
+No appeal was brought against that part of the judges ruling.
+The second point is this.
+I had understood during the argument that the LMI were seeking a negative declaration of the kind which the CMI were not.
+It now appears that I was mistaken.
+I understand that the LMI had indicated an intention of doing so if the CMI proceeded with an application for permission to do so but, since they did not, nor did the LMI, who have now expressly stated that, like the CMI, they will not do so.
+As I see it, in these circumstances the position of the LMI is the same as that of the CMI.
+The causes of action advanced in England in the 2006 action and in 2011 Folio 702, as summarised on behalf of the LMI, are claims by the LMI against Starlight and OME based on clauses 3, 4 and 5 of the LMI settlement agreement.
+Those advanced in 2011 Folio 1043 are claims by the LMI against the co assureds to enforce the English jurisdiction clause in the insurances.
+Since, on this basis, the relief sought by the LMI is not a declaration of non liability, the conclusions and reasoning set out above on the question whether the causes of action are the same apply to it.
+It follows that I would allow the appeals of both the CMI and the LMI on the Article 27 point.
+However these conclusions are subject to the question whether any of the issues discussed above should be referred to the CJEU.
+Left to myself, I would not refer any of them because the principles of European law are clear and the only question is how they should be applied in the instant case.
+However, Lord Mance has arrived at a different view from me on the question whether Article 27 applies to the claims by both the CMI and the LMI for a declaration that the Greek claims fall within the terms of the release in the settlement agreements or that under the agreements the tort claims have been settled.
+In short he is of the view that those claims are essentially for declarations of non liability.
+In these circumstances, I have reached the conclusion that the position is the same as I previously considered it to be when I thought that the LMI were seeking a declaration of non liability.
+That is that, unless the CMI and the LMI abandon those claims within 14 days, we should refer the question whether the claims for those declarations involve the same cause of action as the claims in Greece within the meaning of Article 27.
+Lord Neuberger has also given reasons why, absent such abandonment, this question should be referred.
+On the other hand, if the CMI and the LMI do abandon those claims, I would allow both their appeals under Article 27 and refuse a mandatory stay of the proceedings under it.
+If they do not abandon those claims, I would allow the appeals under Article 27 in respect of the other claims but refer the question referred to above to the CJEU and defer a decision on that issue until the CJEU has determined the question.
+Seisin under Article 27
+It is not I think in dispute (and is in any event correct) that a court is only seised of claims by or against new parties from the date that those parties are added to the proceedings.
+In relation to the 2006 proceedings, the English court was only seised of claims against OME once OME was joined to the proceedings on 20 September 2011 and, for example, to the extent that the LMI in action 2011 Folio 702 are seeking declarations relying on the settlement agreement as a settlement of or defence to Starlight's and OME's claims in the Greek proceedings, the English courts were only seised of that action in 2011.
+It follows that, in each of those cases the court first seised was the Greek court and not the English court, and that, to the extent that the LMI advance claims for a declaration that the Greek claims fall within the terms of the release in the settlement agreement or that under the agreement the tort claims have been settled, unless the English court is the court first seised, they will be entitled to a stay under Article 27.
+The same is essentially true of the CMI claims.
+The question is which court is first seised of what in circumstances where some of the claims brought in England are different from and based on different causes of action from those brought in Greece and one of them in each case, namely the claim for the declaration or declarations referred to above, is based on the same cause of action.
+The approach of the parties is starkly different.
+It is submitted on behalf of the appellants that the answer is to be found in the language of Articles 27 and 30 and is that the court first seised is that in which the proceedings were first brought and that the court remains the court first seised of the proceedings even where those proceedings are subsequently amended by the addition of new claims or otherwise.
+It is submitted on behalf of the respondents, by contrast, that if a new claim is added by amendment, the court is seised of the proceedings so far as that amendment is concerned when the amendment is made and not at the time of the institution of the original, unamended proceedings.
+It seems to me that there is considerable force in the appellants analysis of the language of the Regulation but the respondents case has support both in the English cases and in the textbooks.
+In the course of this judgment I will consider the issues (interesting as they are) only briefly because I have reached the conclusion that, if the appellants persist in their claims for the declarations referred to in paras 58 and 59 above and this issue is critical for the resolution of the appeal, the proper course is to refer the question to the CJEU.
+The case for the appellants can be summarised thus.
+Article 27 is concerned with proceedings involving the same cause of action.
+So, for the purposes of deciding whether to grant a stay of its proceedings under Article 27, the court must compare the cause or causes of action in each set of proceedings.
+It is Article 30 that determines when the court is deemed to be seised and, by Article 30(1), it provides that (subject to the limited exceptions at the end of Article 30(1) and in Article 30(2)), it is deemed to be seised when the document instituting the proceedings or an equivalent document is lodged with the court.
+Where the question is which of two courts is first seised, the two dates on which the courts are deemed to be seised are compared and the court deemed to be seised first is the court first seised.
+The appellants also rely upon the transitional provisions in Article 66, which they say support the proposition that proceedings have only one date upon which they are instituted and is inconsistent with the idea that they can have several such dates as and when new claims are added by amendment.
+The appellants say that in this case the answer is that the English court was the court first seised because the Greek court was not seised until some five years later.
+They say that this is a simple rule which is easy to apply and that there is no warrant in the language of the Regulation for concluding that it was intended that the court should be seised anew each time a new claim is added by amendment, which would be complicated and unnecessary and give rise to endless interlocutory disputes.
+The appellants criticise Longmore LJ for asking in para 52 whether it can be said that the English court was first seised of the relevant causes of action now pursued in Greece and for noting that Article 27 only has regard to "causes of action" rather than proceedings.
+They say that that is inconsistent with Articles 27 and 30 because Article 27(1) uses the word "proceedings" twice and it is used again in Article 30(1).
+They recognise that for the purpose of deciding whether there is le mme objet or la mme cause the court must look to the claims made but, for the purpose of deciding which court is deemed to be "first seised" under Article 27, the autonomous test in Article 30 is applied.
+Finally, they say that Article 30 does not mention "causes of action" and that the Court of Appeal overlooked the word "proceedings" used twice in Article 27, and did not refer to Article 30 at all.
+Moreover, although the word "proceedings" is not defined in the Regulation, it appears nearly 50 times in the Regulation used as a word of general application.
+The uses of the word show that issues or causes of action (or claims) may change during the course of the "proceedings".
+The appellants further criticise Longmore LJ in the Court of Appeal by reference to paras 53 and paras 64 66.
+They contrast the reference in para 53 to Article 27 having regard only to causes of action rather than proceedings, with the reference in para 64, with apparent approval, to this quote from the judgment of Saville LJ in The Happy Fellow at pages 17 18: article 21 is concerned with proceedings and article 22 with actions.
+The questions are whether the proceedings involve the same cause or object or whether the actions are related.
+It is thus a misreading of the Convention to ask which Court is first seised of issues which are or might be raised within the proceedings or actions.
+If such were the case, then the articles would achieve precisely the opposite of their intended purpose which is, to achieve the proper administration of justice within the Community . " Saville LJ was there considering the position under what is now Article 28.
+However the appellants say that the word action in Article 28 means the same as proceedings in Article 27 and that Longmore LJ was correct in paras 64 66 and wrong in para 53.
+Although the appellants case has to my mind the merit of simplicity and of the avoidance of time consuming and expensive satellite litigation, the respondents say that it is simplistic and contrary to both principle and authority.
+It is fair to say that there is considerable support in the authorities and the text books for the proposition that the new claims added to the 2006 proceedings, which were founded on the Greek proceedings and thus made second in time, were new claims, that the English court should be regarded as seised of them only when they were added to the 2006 proceedings and that the Greek court was the court first seised within the meaning of Article 27.
+In the important case of FKI Engineering Ltd v Stribog Ltd [2011] 1 WLR 3264, which was itself a case on Article 28, the Court of Appeal considered Article 27 and a number of cases decided under it.
+At para 84 Rix LJ said that the essence of the cases was that, where the same cause of action or the same parties are introduced only by way of service, or amendment, the relevant proceedings are only brought at the time of such service or amendment, not at the time of the institution of the original, unamended proceedings.
+Neither Mummery LJ nor Wilson LJ expressed a different view.
+The respondents also rely upon Sinco per Beatson J at paras 61 to 68 and, in that connection, upon this comment in Briggs on Civil Jurisdiction and Judgments, 5th edition, 2009 at para 2.235, page 327, note 1: In [Sinco] the proposition that an English court was first seised of a claim for damages for breach of a jurisdiction clause, which could only have been brought before the English court after the objected to proceedings were instituted before the foreign court, was rather challenging.
+And in Research in Motion UK Ltd v Visto Corporation [2007] EWHC 900 (Ch), Lewison J said at para 19: It is also common ground that the counterclaim is to be treated as an action in its own right for the purposes of the judgment regulation.
+It seems to me that once RIM's English non infringement action is out of the way the only relevant proceedings are Visto's counterclaim and the Italian proceedings.
+Of those two, the Italian court is plainly the first seised.
+Indeed it cannot be otherwise since the very fact of the Italian claim is part of the foundation of the counterclaim.
+The respondents rely upon Briggs at para 2.235, where, as I read it, their case is supported, although some doubts are expressed as to the desirability of this approach.
+The respondents also relied upon the 15th edition, 2012 of Dicey, Morris and Collins on The Conflict of Laws at paras 12 060 and 12 069, where they say this: 12 060.
+Each lis between a plaintiff and a defendant has to be considered individually to determine which court was seised of it first in time, and article 27 applied accordingly. 12 069.
+Where a claim form which has been issued and served is amended by the addition of an additional claim, or by the introduction of a claim or counterclaim against another party, the material question is whether the date of seisin in respect of the additional claim is the date on which the amended claim form is reissued (which may, depending on the circumstances, be only after obtaining the permission of the court), or the date of the original issue.
+As it is difficult to see how a court can be said to be seised of a claim which has not been made and does not appear in the claim form, it cannot be correct that as long as a claim form has been issued and served, the court already has temporal priority over any issue which may later be added by amendment.
+It would follow from a conclusion that the court is not seised of the new claim until the amended claim form is reissued that the defendant may be able to pre empt the amendment by commencing an action of his own in another Member State.
+The court seised with such pre emptive proceedings will obviously be regarded as being seised later than the court before which the original action was brought, but institution of the later action may serve to prevent the proposed, and now duplicative, amendment of the original action; and there is no basis in the Regulation for refusing to give effect to a use of the rules which might be characterised as sharp practice.
+Finally, the respondents rely upon Fentiman on International Commercial Litigation, 2010, at para 11.27: Principle suggests that an amended claim arising from the same facts as the original claim might be consolidated with the original claim for the purposes of Article 30 but not where the facts arose subsequently.
+In the latter case it does no violence to the expressions 'actions' or 'proceedings' to differentiate the claims.
+While these expressions of view undoubtedly provide strong support for the respondents submissions, some of them seem to me to be expressed in a somewhat tentative way and I am not sure that the textbook writers grapple with the points made by the appellants on the language of the Regulation.
+However that may be, as indicated earlier, I am of the opinion that this issue is by no means acte clair and, if the appellants maintain their claim or claims in England for a declaration that the Greek claims fall within the terms of the release in the settlement agreements or that under the agreements the tort claims have been settled, I would refer an appropriate question to the CJEU before forming a concluded view with regard to the applicability to that claim or claims.
+If they abandon them, I would hold that the respondents are not entitled to a stay under Article 27, refuse them a mandatory stay in respect of all the claims and allow the appellants appeal.
+Article 28
+The question whether those claims which are not within Article 27 should be stayed depends upon whether they should be stayed under Article 28.
+As stated above, in the exercise of his discretion the judge refused the respondents application for a stay under Article 28.
+The appellants say that he was right to do so.
+The respondents case is that the English court was second seised for the purpose of Article 28 and that a stay should be granted as a matter of discretion.
+Seisin under Article 28
+It is plain from the express terms of Article 28(1) that the discretion in Article 28 is limited to any court other than the court first seised.
+It follows that, if the English court was first seised, it has no discretion to stay.
+Article 28 moreover applies to related actions pending in the courts of different member states and, by Article 28(3), actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.
+It is not in dispute in these appeals that the various proceedings are related proceedings for the purposes of Article 28 and I would in any event so hold.
+The questions remain whether the actions are pending, whether the English court is the court first seised and, if it is not, how the discretion should be exercised.
+In Stribog the Court of Appeal considered the correct approach to Article 28.
+It held that two questions arise, namely (1) whether the two sets of proceedings are related, taking account of any amendments which have been made at the time of the enquiry and (2) which set of proceedings were commenced first? Rix LJ expressed the position clearly at paras 119 and 120.
+He explained that it is only when there are related and pending actions in separate member states that Article 28 comes into issue.
+The question whether they are related is, as he put it, the Article 28(3) question.
+He then said: 119.
+The question of when seisin occurs and thus which of the courts is the court first seised is the article 30 question.
+FKIs submission in effect seeks to roll the two questions together and ask: which of the two courts is the first to be seised of an action which at the time of its seisin was a related action? This is the concept of the first related action, a concept found in neither article 28 nor article 30.
+Stribog on the other hand asks: once you have found two related and pending actions and seek to stay one of them, invoking article 28, which of the two courts was the first to achieve seisin of one or other of those actions? 120.
+In my judgment, the latter question is the correct one, and is to be preferred to the former .
+See also per Mummery LJ at paras 40 to 44, where he stressed in particular that the question is whether the court concerned is seised of an action and not of a particular issue in an action.
+He also stressed that the time at which the comparison between the two actions is made is the time of the hearing of the application for the stay.
+Wilson LJ noted at paras 132 134 that Mummery and Rix LJJ asked the relevant questions in a slightly different order: Mummery LJ asked which court was first seised in a pending action before asking whether the actions were related, whereas Rix LJ preferred to ask them in the reverse order.
+Wilson LJ said that he did not see why the order matters but that Rix LJ seemed to have the terminology of Article 28 on his side.
+I agree.
+The question whether the actions are pending is closely related to the question whether the English court remains first seised.
+The respondents say that there was no action pending in England when the Greece 1 proceedings were commenced.
+In the alternative they say that, if the original action is still alive, the English court is not first seised because the claims now brought are entirely new claims, which they say should be equated with new proceedings.
+I will consider these points in turn.
+On the first point, the appellants say, by contrast, that the 2006 proceedings are still on foot, and thus pending, having been stayed but not finally concluded.
+I would accept the appellants submissions.
+The settlement agreements were in this respect in identical terms.
+It was a term of them that Starlight would obtain a stay by way of Tomlin Orders.
+The orders were both in the same terms, which are standard in such cases, and (as quoted in para 7 above) provided that save for the purposes of carrying into effect the terms agreed all further proceedings shall be stayed.
+It appears to me that, on the true construction of those orders, the actions remained unstayed for the purposes of carrying into effect the terms agreed and were otherwise stayed.
+As I see it, in so far as the actions remained unstayed, it follows that the court remained seised of them, presumably at least until there was no longer any need for the terms agreed to be carried out.
+It is plain from the language of Article 28(1) that the court first seised means the court first seised of the action, which must mean first seised of the proceedings, not of particular claims or causes of action within the proceedings.
+It seems to me to follow that, in so far as the appellants are seeking to enforce the provisions of the settlement agreements, as they are, the English court remains first seised.
+I arrive at this conclusion by a construction of Article 28(1) and of the Tomlin Order.
+The appellants were able to pursue these claims without issuing further proceedings.
+In this regard I would accept the analysis of the judge at paras 24 to 29.
+I would adopt the analysis of Sir Andrew Morritt V C in Bargain Pages Ltd v Midland Independent Newspapers Ltd [2003] EWHC 1887 (Ch) and I would not follow the reasoning of the Court of Appeal in Hollingsworth v Humphrey, (1987) CAT 1244.
+What then of the parts of the actions which are stayed under the Tomlin Orders? These would include the claims for breach of the exclusive jurisdiction clauses in the policies of insurance, which do not depend upon the terms of the settlement agreements.
+The appellants rely upon principles developed by the English courts as a matter of English, not European, law.
+However, this is in my opinion a permissible approach.
+Article 30 of the Regulation provides for the circumstances in which a court is deemed to be seised.
+I recognise of course that the concept of seisin is an autonomous European law device but Article 30 does not make express provision for the circumstances in which it ceases to be seised.
+In these circumstances, it seems to me to be appropriate for national courts to have regard both to the nature of seisin in European law and to their own procedural rules in deciding whether their courts are no longer seised of a particular set of proceedings.
+The appellants rely upon the decision of the Court of Appeal in Rofa Sport Management AG v DHLK International (UK) Ltd [1989] 1 WLR 902, where the Court of Appeal held that a stay of proceedings is not equivalent to a dismissal or discontinuance and therefore that an action in which all further proceedings have been stayed, even if by consent of all parties after a settlement, remains in being.
+See in particular per Neill LJ at 909H to 910D and 911A C. He concluded that, for the sake of clarity and certainty, the word stay in an order should not be treated as a possible equivalent of a dismissal or discontinuance.
+Although the action cannot continue without an order of the court, nor can it, he said, be regarded as dead in the same way as an action which has been dismissed or discontinued by order.
+I agree.
+The reasoning in Rofa supports the conclusion that in circumstances in which the 2006 proceedings have been stayed and not dismissed or discontinued the court remains seised of them.
+It is not and could not be disputed that the court was seised of the proceedings in accordance with Article 30 when the claim form in the 2006 proceedings was issued.
+It is not suggested that the appellants failed to take any of the steps referred to in Article 30(1) or (2) which would have nullified that effect.
+The question is whether anything happened subsequently from which it can be inferred that the court was no longer seised.
+I would answer that question in the negative.
+Although Rofa was not a decision on the construction of the Regulation, the correct approach is to consider whether anything occurred which could lead to the conclusion that the approach adopted there should not be applied to the stay incorporated in the Tomlin Orders and, if not, whether there is anything which leads to the conclusion that the court is not still seised of the proceedings.
+I would answer both those questions in the negative.
+Although it is true that the CMI settlement agreements contained a provision that, on payment of the settlement sum, the parties would file a consent order dismissing the proceedings, no such consent order was made or filed.
+The LMI settlement agreement does not contain any such provision.
+In all these circumstances, I can see no sensible basis upon which it can be said that the English court is no longer seised of the proceedings.
+There remain significant disputes arising out of the settlement agreements and the insurances.
+The second point taken on behalf of the respondents under this head is that, even if the original action is still alive, the claims now brought are new claims, which should be equated with, or treated as, new proceedings.
+They rely upon this dictum of Rix LJ in Stribog at para 129: Seventhly, there is nothing in the ECJ or English jurisprudence to support the judges approach in this case.
+It is possible that the introduction of entirely new causes of action or parties is to be recognised as the bringing of entirely new proceedings, so that the timing of seisin (the article 30 question) has to be looked at from that point of view, as occurs for the purposes of article 27.
+Even so, it is not clear to me that in this connection article 27 and article 28 work in the same way: for article 27 is worded in terms of the bringing of actions with the same parties and the same cause of action (Where proceedings are brought in the courts) whereas article 28 is worded in terms of the pendency of related actions (Where related actions are pending in the court) (emphasis added).
+That emphasises that the article 28 question is asked with relation to pending actions, and not, as the article 27 question is asked, with relation to the bringing of actions.
+In any event, the judge is in my respectful judgment mistaken to think that any amendment is analogous to the bringing of new causes of action or the addition or substitution of new parties.
+For my part, I would not accept that approach as applied to Article 28.
+In para 68 above I referred to the statement of Rix LJ at para 84 of Stribog.
+In para 63 of his judgment in the instant case Longmore LJ quoted para 84, where Rix LJ said that, where proceedings are amended to add new claims, the court is only seised of the relevant proceedings so far as the new claims are concerned at the time of the amendment.
+Immediately after the quote, Longmore LJ correctly pointed out that those observations were made in relation to Article 27 and not Article 28.
+He then quoted the second sentence from the above quotation from para 129 of Rix LJs judgment.
+Longmore LJ then asked whether this tentative expression of view in relation to "the introduction of entirely new causes of action" being tantamount to "the bringing of entirely new proceedings" means, for the purpose of this case, that the Greek courts are to be regarded as first seised of the relevant related action? He said at para 64 that, in his opinion it did not.
+He gave two reasons.
+He said that in the first place Rix LJ had already quoted the passage from the judgment of Saville LJ in The Happy Fellow which I set out in para 66 above.
+At para 65 Longmore LJ said that, in the second place, Rix LJ provided his tentative response to his tentative view in the remainder of paragraph 129 which he then quoted.
+That response is to my mind telling.
+Longmore LJ then expressed his conclusion at para 66.
+He expressed doubt about Rix LJs distinction between entirely new causes of action as opposed to partially new causes of action.
+However that may be, his conclusion seems to me to be contained in the last two sentences of para 66: As Saville LJ said in The Happy Fellow it is a misreading of Article 28 to ask which court is first seised of issues; it must likewise be wrong in an Article 28 context to ask which court is first seised of causes of action.
+That is Article 27 territory because, for the purpose of Article 28, one has to ask which court is first seised of an action, not a cause of action and, still less, an issue.
+On that basis Longmore LJ concluded at para 67 that, if the original English action and the subsequent Greek actions are related, as he concluded they are, it was the English court that was the court first seised.
+I agree.
+First, the contrary view seems to me to be inconsistent with the two stage approach to Article 28 adopted in Stribog.
+As Longmore LJ observed at para 66, in the context of Article 28 it is wrong in principle to ask which court is first seised of a cause of action, because Article 28 is concerned with related actions as a whole.
+Secondly, I would accept the appellants submission that on the facts of this case the claims now brought are not (as Rix LJ put it) entirely new.
+On the contrary, applying the broad and common sense approach favoured by Lord Saville in Sarrio, the claims now brought by the appellants are unquestionably related to the original action within the meaning of Article 28.
+I would only add in conclusion that it seems to me that it would be very odd
+indeed if a court which is seised of proceedings and stays those proceedings by way of a Tomlin order on the express terms that it retains jurisdiction to take further steps by way of implementation or policing of the order were prevented from exercising that jurisdiction, either by lifting the stay or otherwise, on the ground that it was no longer seised of the proceedings.
+It seems to me to be at least arguable that those steps should properly be treated as part of the existing proceedings.
+They might perhaps be treated as part of the same procedural unit as discussed by the CJEU in Purrucker v Vallz Prez (No 2) (Case C 296/10) [2011] Fam 312 at para 80.
+The case was on very different facts but was concerned with two paragraphs in a regulation which were identical to Articles 27 and 30 of the Regulation.
+In any event to treat the enforcement action as something entirely new seems to me to be wrong.
+It is never easy to decide what is an entirely new claim, what is a new claim and what is an expansion of an old claim.
+These claims are not new or entirely new because they are brought by way of enforcement of the outcome of the original dispute, in the same way as execution on a money judgment.
+In these circumstances it makes sense to hold that these claims, which largely arise out of the settlement agreements, arise out of the attempts made by the respondents to avoid the effect of those agreements and, in particular, the exclusive jurisdiction agreements.
+This solution would, as I see it, be consistent with the overall policy of the Regulation to avoid a multiplicity of proceedings.
+However, I can see that there is scope for argument under this head and, if the issue of first seised were critical to the decision, it might be appropriate to refer an appropriate question to the CJEU.
+I therefore turn to the issue of discretion on the assumption that the English court is second seised for the purposes of Article 28.
+Discretion
+On that assumption, the question arises whether the action or actions should be stayed as a matter of discretion.
+The judge held that no such stay should be granted.
+Given that the shape of the case has changed considerably since the matter was before the judge, it appears to me that this Court should consider for itself whether to grant a stay.
+I have reached the clear conclusion that it should not.
+I have reached that conclusion essentially for the reasons advanced on behalf of the appellants.
+They may be summarised in this way.
+In Owens Bank Ltd v Bracco (Case C 129/92) [1994] QB 509, at paras 74 79, Advocate General Lenz identified a number of factors which he thought were relevant to the exercise of the discretion.
+They can I think briefly be summarised in this way.
+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.
+Indeed, he appears to have approved the proposition that there is a strong presumption in favour of a stay.
+However, he identified three particular factors as being of importance: (1) the extent of the relatedness between the actions and the risk of mutually irreconcilable decisions; (2) the stage reached in each set of proceedings; and (3) the proximity of the courts to the subject matter of the case.
+In conclusion the Advocate General said at para 79 that it goes without saying that in the exercise of the discretion regard may be had to the question of which court is in the best position to decide a given question.
+On the facts here those questions can be considered together.
+As I see it, the issues are not dissimilar from those considered by Cooke J in Primacom at para 65, where he said this: Even if I had found that these two sets of proceedings and the German proceedings were related within the meaning of article 28, 'the strong presumption' which 'lies in favour of the applicant' on an application for a stay would be overridden here by virtue of the terms of the SSFA.
+Although the ECJ decision in Gasser means that a stay is mandatory where article 27 applies, there is no reason why weight should be given to that decision in the context of article 28, where a discretion is given to the court, the jurisdiction of which has been agreed by the parties as exclusive.
+It is nothing to the point that an English court could not have issued an anti suit injunction to prevent the German proceedings (as per C 159/02 Turner v Grovit [[2005] 1 AC 101]).
+The injustice of giving precedence to proceedings brought in breach of an exclusive jurisdiction clause where the parties have agreed that England is the appropriate forum is self evident.
+To breach the clause and to gain the benefit of priority for the German courts by such breach offends justice, where the court has a discretionary decision to make.
+In my opinion, similar considerations apply here.
+Although the true
+construction of the settlement agreements and the question whether Starlight and OME are in breach of them is ultimately a matter for the court which finally determines the summary judgment application or for the court at trial, there is a strong argument (to put it no higher) that the Greek proceedings have been brought by Starlight and OME in breach of the settlement agreements, which are subject to the exclusive jurisdiction of the English courts and/or in breach of the exclusive jurisdiction clauses in the insurance contracts.
+I would reject the submission that those considerations are impermissible in the light of the decision in Gasser.
+It was there held that, if the criteria for ordering a mandatory stay under Article 27 are satisfied, then the court second seised must stay its proceedings even if the court second seised has jurisdiction under an exclusive jurisdiction clause falling within Article 23.
+That conclusion was reached on the basis that, under Article 27, where there are two sets of proceedings which involve the same cause of action and the same parties, the court second seised is obliged to order a stay.
+The Regulation only permits one set of proceedings to continue.
+The position is quite different under Article 28, which clearly contemplates that where there are two related sets of proceedings they may proceed in parallel.
+That conclusion follows from the proposition that the grant of a stay is discretionary and not mandatory.
+In these circumstances, I can see no reason why, in exercising that discretion under Article 28, the court second seised should not take into account the fact that the parties had previously agreed (or arguably agreed) an exclusive jurisdiction clause in favour of that court.
+On the contrary, depending upon the circumstances of the particular case, that seems to me to be likely to be a powerful factor in support of refusal of a stay.
+After all, Recital 14 expressly provides: The autonomy of the parties to a contract, other than an insurance, consumer or employment contract, where only limited autonomy to determine the courts having jurisdiction is allowed, must be respected subject to the exclusive grounds of jurisdiction laid down in this Regulation.
+There is a close relationship between the claims in England and the subject matter of the claims in Greece.
+The natural court to consider the issues raised by the CMI and the 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.
+After all, the judge granted summary judgment as long ago as December 2011.
+The court in Greece will then have the benefit of the decision of the court which, in the Advocate Generals language, is in the best position to decide these issues.
+Once there is a final judgment of the English courts, it will be recognisable in Greece, as elsewhere in the EU and will assist the Greek court.
+In this way, the principles of mutual trust upon which the Regulation is founded will be respected and there will be no risk of irreconcilable judgments.
+In these circumstances I would uphold the decision of the judge in refusing
+a stay under Article 28.
+There is no need for a reference to the CJEU because the question I would have referred does not arise given my conclusion on the exercise of discretion.
+It was at one time suggested that there is a referable question as to whether Article 28 gives the court second seised a choice between staying the proceedings under Article 28(1) and declining jurisdiction under Article 28(2).
+However, that suggestion was abandoned before the hearing.
+I would in any event have rejected it as unarguable.
+There is no support whatever for it in the language of Article 28 and none of the sources referred to supports the conclusion.
+The discretion is to stay or not to stay under Article 28(1) and to decline or not to decline jurisdiction under Article 28(2).
+The Court may thus both refuse to stay and refuse to decline jurisdiction.
+As the Advocate General explained in Bracco, all depends upon the circumstances.
+Too late?
+The remaining question is whether the Court of Appeal was wrong to reject submissions made on behalf of the appellants that it was too late for the respondents to rely upon Article 27.
+This is another part of the case where the facts seem to me to be startling.
+The appeal on this point is brought by the LMI and not the CMI but it is I think accepted that, if the appeal succeeds, the CMI will be able to take advantage of it.
+The most important point raised by this part of the appeal is whether the courts had a discretion to hold that the LMI should not be permitted to rely upon various procedural acts and omissions on the part of the respondents in response to their attempt at a late stage to rely upon Article 27 of the Regulation or whether, once the point was brought to its attention, the Court of Appeal was bound to consider Article 27 (as quoted at para 24 above) because it expressly provides that, where the conditions are satisfied any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.
+I have reached the conclusion that the answer is that the appellants were entitled to rely upon the acts or omissions of the respondents and that, having regard to what had happened before Judge Mackie QC and the judge, the Court of Appeal was not bound to take the point of its own motion.
+Moreover, subject to a possible reference, I would hold that the Court of Appeal should have considered the acts or omissions of the respondents and have held that it was too late for the respondents to rely upon Article 27.
+The question of the scope of the Court of Appeals duty to take the point of its own motion in circumstances of this kind is however an important point on the construction of Article 27 and, if it were necessary for the determination of the appeal, I would refer it to the CJEU.
+However, if the LMI abandon their claim or claims for a declaration of non liability a reference will not be necessary for the determination of the appeal.
+If they do not, my present view is that it will.
+The relevant chronology, which I take from the Statement of Facts and Issues, is briefly as follows.
+I will omit references to the CMI proceedings, in which the applications were heard at the same time as those in the LMI proceedings.
+By application notice dated 3 August 2011, the LMI applied for wide ranging relief against Starlight to enforce the LMI settlement agreement.
+By application notice dated 18 August 2011 the LMI sought permission to join OME and to serve OME out of the jurisdiction.
+As explained earlier, the LMI commenced 2011 Folio 702 against Starlight and OME in order to enforce the LMI settlement agreement.
+They also commenced 2011 Folio 1043 only against the co assureds, which was an action founded solely on the exclusive jurisdiction clause in the policies.
+On 20 September 2011 the LMI obtained permission from Judge Mackie QC to issue a Part 20 claim against OME in 2006 Folio 815 and, lest it be needed, to serve that Part 20 claim form and the claim forms in 2011 Folios 702 and 1043 out of the jurisdiction and to serve them on Lax & Co in London.
+The applications were supported by a witness statement by their solicitor, Mr Zavos, in which he referred both to possible stays under Article 27 and Article 28 giving reasons why stays should not be granted.
+The orders gave notice to each of Starlight, OME and the co assureds that: You may apply within seven days after the date of service of this Order on you to have the Order set aside or varied.
+This time limit does not apply to an application to dispute the jurisdiction of the Court in respect of which the procedure in CPR Part 11 as modified by CPR Part 58 applies No such application was made.
+Starlight did not serve evidence within the time provided in the CPR.
+However, on 4 November 2011 they served evidence which included an express request by Mr Crampton of Lax & Co that the relief sought by the appellants on the merits be denied, alternatively that the matter be referred to a full trial, with provision for disclosure and exchange of witness and expert evidence.
+On 7 November Starlight, OME and the co assureds each filed a defence on the merits in the relevant action, having first obtained an extension of time for doing so.
+Each of the defences included a paragraph which stated: The claims in the Greek Proceedings fall outside the jurisdiction clause in the policy and the jurisdiction clause in the Settlement Agreement.
+It is respectfully denied therefore that the High Court of Justice of England and Wales has jurisdiction to determine the
+claims in the Greek Proceedings
+The grounds on which Starlight, OME and the co assureds opposed the appellants claims and applications for summary relief, were in summary that the claims brought in the Greek proceedings (1) did not fall within the scope of the releases contained in the LMI settlement agreement or the CMI settlement agreement; (2) did not fall within the scope of the indemnities contained in the settlement agreements; and (3) did not fall within the scope of the jurisdiction clauses contained in the settlement agreements or in the policies.
+Following service of the defences, the LMI applied for summary judgment in all the actions and all the applications were fixed to be heard on 28 and 29 November at the same time as the application for summary relief against Starlight in the 2006 proceedings.
+In their skeleton argument prepared for those hearings, which were served on 23 November 2011, the LMI included the following: 71.
+There has been no application for a mandatory stay under Article 27 of the Judgments Regulation in respect of the [LMIs] claims to enforce the jurisdiction clause in the contract of insurance, and to enforce the terms of the [LMI] Settlement Agreement.
+This is (no doubt) because the claims are different claims from the claims advanced by the Assureds in Greece.
+On 25 November 2011, Starlight, OME, and the co assureds, through their former counsel, James Drake QC and Emma Hilliard, provided their skeleton argument to the court, which expressly disavowed any application under Article 27, in these terms: 69.
+It is well established that in order for Article 27 to operate there must, when comparing the two sets of proceedings in issue, be three identities: of parties, of cause, and of objet: see generally Briggs & Rees, Civil Jurisdiction and Judgments (5th ed 2009) at paras 2 227 to 2 231. 70.
+Starlight does not here contend that there is here an identity of cause and objet between the Greek proceedings and the Insurers applications.
+Although designed to preclude in so far as possible, and from the outset a clash of verdicts, the operation of Article 27 (as distinct from Article 28) is highly restricted in its actual operation.
+Comparison must be made between the claims made in the two actions, regardless of possible defences, to see whether they proceed on essentially the same facts and under the same rule of law.
+In the footnotes they referred to the cases I have discussed earlier, including Gubisch, Gantner and The Tatry.
+It is thus plain that before the matter came before the judge the respondents had made a clear and reasoned decision not to rely upon Article 27.
+Moreover, there is no reason to think that the judge did not consider the points they made and accept them.
+They relied only on Article 28.
+They did so pursuant to an application made by application notice dated 24 November 2011.
+However that application was out of time.
+So, by further application notices in each action dated 28 November 2011, the respondents applied for permission to make the Article 28 application out of time, and for relief from sanctions pursuant to CPR Part 3.
+The sanction referred to was that imposed by CPR Part 11, which provides that a defendant who files an acknowledgment of service and fails to apply to the court within the time allowed under the CPR for an order declaring that it has no jurisdiction or should not exercise any jurisdiction which it may have, is to be treated as having accepted that the court has jurisdiction to try the claim: CPR rule 11(5).
+As stated in para 19 above, the judge dismissed the stay application under Article 28 and held that the appellants were entitled to summary judgment.
+He held that (1) each of the claims made by Starlight, OME, and the co assureds against the appellants in Greece is in breach of the exclusive English jurisdiction agreement in the policies; (2) each of the claims made by Starlight and OME against the appellants in Greece is in breach of the jurisdiction agreements in the settlement agreements which provide for exclusive English jurisdiction; (3) each of the claims made by Starlight and OME against the appellants in Greece is in breach of the terms of the settlement agreements; (4) each of Starlight, OME and the co assureds is liable in damages to the insurers for breach of contract and under Section 50 of the Senior Courts Act 1981; and (5) each of Starlight and OME is bound to indemnify and hold the insurers harmless against each of the claims in the Greek proceedings pursuant to the indemnities in the settlement agreements.
+The judge handed down his judgment on 19 December 2011 and fixed 2 February 2012 for the hearing of consequential applications.
+In the meantime, on 7 December 2011 Thomas Cooper had replaced Lax & Co as the respondents solicitors.
+On 24 January 2012 draft grounds of appeal were served which included for the first time reliance on Article 27.
+They were considered in a somewhat amended form by the judge.
+The judge granted permission to appeal on a number of grounds including the Article 27 point.
+As to that he said that he would not have given permission on that point alone, as he put it, not least because the Article 27 case could become the subject of an independent application at first instance at any time hereafter.
+He recognised that this would have the effect of turning the Court of Appeal into a first instance court but concluded that it could be argued without the need for further evidence and without a great addition of time.
+In the Court of Appeal the appellants relied upon the provisions of CPR Part 11, but the Court of Appeal held that it did not apply because applications under Articles 27 and 28 are not challenges to the jurisdiction.
+It further held that it was bound to take the Article 27 point of its own motion.
+The LMI say that the Court of Appeal was wrong on both points.
+CPR Part 11 provides, so far as relevant as follows: (1) A defendant who wishes to (a) dispute the court's jurisdiction to try the claim; or (b) argue that the court should not exercise its jurisdiction, may apply to the court for an order declaring that it has no such jurisdiction or; should not exercise any jurisdiction which it may have. (2) A defendant who wishes to make such an application must first file an acknowledgment of service in accordance with Part 10. (3) A defendant who files an acknowledgment of service does not, by doing so, lose any right that he may have to dispute the courts jurisdiction. (4) An application under this rule must (a) be made within 14 days after filing an acknowledgment of service; and (b) be supported by evidence. (5) If the defendant (a) files an acknowledgment of service; and (b) does not make such an application within the period specified in paragraph (4), he is to be treated as having accepted that the court has jurisdiction to try the claim. (6) An order containing a declaration that the court has no jurisdiction or will not exercise its jurisdiction may also make further provision including (a) setting aside the claim form; (b) setting aside service of the claim form; (c) discharging any order made before the claim was commenced or before the claim form was served; and (d) staying the proceedings.
+In an action in the Commercial Court such as this CPR 11(4) is varied by CPR 58.7(2) so that the application under CPR 11(1) must be made within 28 days after filing an acknowledgment of service and not 14 days.
+As I understand it acknowledgments of service were filed in each case.
+The position under CPR Part 11 is different from the position under the former Rules of the Supreme Court, under which the equivalent rule, namely RSC Order 12 rule 8(1), did not include an application for a stay.
+By contrast CPR 11(1)(b) applies to an application for an order that the court should not exercise its jurisdiction.
+An application for a stay is precisely that.
+An application for a stay under Article 27 is thus an application within CPR 11(1)(b).
+The applicant must file an acknowledgment of service and must make an application within 28 days.
+The respondents did not do that.
+Nor did they seek an extension of time to so do within the CPR.
+It is arguable that the effect of CPR 11(5) is that their failure to do so means that they are treated as accepting that the court both has jurisdiction and that it is free to exercise it.
+The difficulty is that the wording of paragraph (5) may only relate to the existence of the jurisdiction rather than the exercise of it.
+This point was left open in Texan Management Ltd v Pacific Electric Wire & Cable Company Ltd [2009] UKPC 46 at paras 68 and 69.
+However that may be, the LMI rely upon the voluntary submission to the jurisdiction evidenced by the acknowledgment of service and the service of a defence.
+They also rely upon the clear and unequivocal statement of the respondents position in their skeleton argument before the judge.
+It is plain from the terms of the concession quoted at para 106 above that serious thought had been given to the question both of whether to make the concession and of the basis on which it was to be made.
+In these circumstances, unless there is some rule of European law to the contrary, it appears to me that the Court of Appeal should have considered whether, in the exercise of their discretion to permit argument on a new point, they should exercise that discretion in favour of the respondents or not.
+Moreover, it appears to me that, given the clear basis on which the concession was made and, given that the judgment had proceeded on that basis, the Court of Appeal should have held that it had a discretion under CPR rule 11(1) to permit an application under the rule to be made out of time but should have refused to exercise it.
+However it is said that on the true construction of Article 27, the court, including on these facts the Court of Appeal, has a duty to consider the application of Article 27 of its own motion whenever the point is taken.
+This strikes me as extremely improbable.
+I would accept the submissions of the LMI in this respect.
+The CJEU has recognised the importance of national rules of procedure.
+Thus, for example, in Shevill v Presse Alliance SA (Case C 69/93) [1995] 2 AC 18 the CJEU said: 35. the object of the [Brussels] Convention is not to unify the rules of substantive law and of procedure of the different contracting states, but to determine which court has jurisdiction in disputes relating to civil and commercial matters in relations between the contracting states and to facilitate the enforcement of judgments: see Kongress Agentur Hagen G.m.b.H vs Zeehaghe B.V. (Case C 365/88) [1990] E.C.R. 1 1845, 1865, para. 17. 36.
+Moreover, the court has consistently held that, as regards procedural rules, reference must be made to the national rules applicable by the national court, provided that the application of those rules does not impair the effectiveness of the Convention: paragraphs 19 and 20 of [Kongress Agentur Hagen G.m.b.H. vs Zeehaghe B.V. (Case C 365/88) [1990] E.C.R. 1 1845]."
+I would accept the LMIs submission that Article 27 is part of European law and overrides national law which is incompatible with it.
+It does not however follow from this proposition that English procedural rules were overridden.
+A national procedural rule must not impair the effectiveness of Article 27.
+It must not render the exercise of rights conferred by EU law impossible or excessively difficult: Amministrazione delle Finanze dello Stato v SpA San Giorgio (Case 199/82) [1983] ECR 3595, [1985] 2 CMLR 658.
+This is the principle of effectiveness, which involves considering whether the rule can operate consistently with Article 27, or whether it is incompatible with it.
+The procedural rule should not be less favourable than those governing similar domestic actions, which is the principle of equivalence: see eg Interfact Ltd v Liverpool City Council [2011] QB 744, Kapferer v Schlank and Schlick GmbH (Case C 234/04) [2006] ECR I 2585 at paras 19 to 22, Kbler v Austria (Case C 224/01) [2004] QB 848; and Eco Swiss China Time Ltd v Benetton International NV (Case C 126/97) [1999] ECR I 3055.
+I refer only to Interfact, where the Court of Appeal refused to exercise its discretion to allow cases to be reopened under CPR 52.17, so as to give a remedy for infringement of a provision of European law.
+Lord Judge CJ, delivering the judgment of the Court of Appeal, said : 41 In general, EU law does not require national courts to disapply their own procedural rules in order to secure the vindication of EU rights.
+In Kapferer v Schlank & Schick GmbH the Austrian Supreme Court was seised of an appeal in which the respondent had failed to lodge within the time stipulated a respondent's notice taking a point on jurisdiction under the Brussels Convention.
+The court referred to the Court of Justice the questions whether it was, nevertheless, bound to take the point of EU law of its own motion and whether EU law required a national court to review and set aside a final judicial decision in circumstances where it later became apparent that the decision of the court was in breach of EU law.
+The Court of Justice held that a national court is not so bound 44 . [Kapferer] establishes as a matter of general principle that EU law does not require a national court to reopen a final judicial decision, even if failure to do so would make it impossible to remedy an infringement of a provision of EU law: see the Kapferer case, at para 21; Amministrazione dell'Economia e delle Finanze and Agenzia delle Entrate v Fallimento Olimpiclub Srl (Case C 2/08) [2009] ECR I 7501, para 23; Asturcom Telecommunicaciones SL v Rodrguez Nogueira (Case C 40/08) [2010] 1 CMLR 865 para 37. 49.
+The Court of Justice has upheld national time limits and limitation periods on grounds of legal certainty and the need to ensure finality in decision making, even though the effect has been to preclude enforcement of an EU law right: see, for example, Palmisani v Istituto Nazionale della Previdenza Sociale (INPS) (Case C 261/95) [1997] ECR I 4025; Fantask A/S v Industriministeriet (Ehrvervsministeriet) (Case C 188/95) [1997] ECR 1 6783.
+Finally, I would accept these submissions made by the LMI.
+Under English law a final judgment on the merits should not be set aside without very solid grounds: Brown v Dean [1910] AC 373 at 374, per Lord Loreburn.
+Interest republicae ut sit finis litium.
+This is part of the common tradition of the legal systems of the Member States: Rewe Zentralfinanz eG and Rewe Zentral AG v Landwirtschaftskammer fr das Saarland (Case C 33/76) [1976] E.C.R. 1989.
+As quoted above, in Interfact the Court of Appeal rejected the argument that, where an appellate court has a discretion to exercise under national procedural law to allow a final judgment to be challenged on appeal, it must exercise that discretion so as to remedy the infringement of EU law.
+In my judgment, there is no sensible basis upon which it can be said that the time limit under CPR 11(4), which can in an appropriate case be extended under CPR 3.1(2)(a), is contrary to EU law.
+The time limit satisfies the principle of equivalence because it is the same rule that applies in all cases.
+It fulfils a legitimate aim, namely making sure that points going to whether the proceedings are to be tried on their substantive merits in England are taken promptly and without unnecessary costs.
+It satisfies the principle of legal certainty because parties need to know where they stand.
+The absence of a time limit would allow a litigant to take the point years afterwards.
+Moreover, the time limit does not render the right to apply for a stay under Article 27 (or Article 28) impossible or excessively difficult to exercise.
+It allows sufficient time for the point to be raised, especially given the express rule permitting an extension of time in appropriate cases.
+As to the expression of its own motion in Article 27, there are a number of different parts of the Regulation that have a similar provision.
+On the facts here the potential for a stay under Article 27 was before the courts on at least two occasions.
+The position was explained to Judge Mackie QC on the without notice application referred to above.
+There is no reason to think that he did not give consideration to the position.
+More importantly perhaps the position was explained to the judge in the skeleton arguments to which I have referred.
+He was given both reasons and authority on the question whether a stay should be granted under Article 27.
+It seems to me that the judge was entitled to accept those submissions, which were made on the respondents behalf by experienced counsel and solicitors.
+For these reasons I would hold that the Court of Appeal should have refused to allow the respondents to rely upon Article 27 in the Court of Appeal.
+That said, I would accept that the meaning and effect of the duty to consider Article 27 of its own motion are matters of some potential importance and I have (somewhat reluctantly) reached the conclusion that they are not acte clair.
+I would therefore refer an appropriate question to the CJEU if it were necessary in order to resolve the appeal.
+If the appellants abandon the claims to the declarations referred to in paras 58 and 59 above, such a reference will not be necessary because, for the reasons given above, I would allow the appeals under Article 27 in their entirety.
+It seems to me that rather different considerations apply to Article 28 and that the Court of Appeal were entitled to consider Article 28 as part of the appeal from the decision of the judge who had considered it in detail.
+CONCLUSIONS
+For these reasons I would invite the CMI and the LMI to consider whether they wish to pursue their claims for declarations (referred to in paras 58 and 59 above) that the Greek claims fall within the terms of the release in the settlement agreements or that under the agreements the tort claims have been settled.
+As Lord Neuberger observes, those are the claims described in para 18(a)(1)(i), 18(a)(2)(i) and 18(b)(i) above.
+They should indicate their position within 14 days of this judgment being handed down.
+If they persist in their claims, some limited questions should be referred to the CJEU as described above.
+The decision whether to stay those claims would then await the result of the reference, although I would allow the appeal under Article 27 in respect of the other claims.
+If they abandon them, I would allow all the appeals of both the CMI and the LMI under Article 27.
+I would in any event dismiss the respondents cross appeal under Article 28 and I would hold that their application for a stay under Article 28 should be refused as a matter of discretion.
+The parties should make written submissions on the form of order and costs within 21 days of the handing down of this judgment.
+Finally, I would like to thank all counsel and solicitors for their assistance in this unusual and in some respects difficult case.
+LORD NEUBERGER
+Subject to one point, I entirely agree with Lord Clarkes reasoning and conclusions.
+The one point concerns the issue discussed in paras 44 46 and 58 59 of Lord Clarkes judgment and in Lord Mances judgment.
+That issue is whether (i) LMIs claim in England for a declaration that the Greek claims have been settled, and (ii) CMIs claim in England for a declaration that the Greek claims were compromised (the English declaration claims, described in para 18(a)(1)(i), 18(a)(2)(i) and 18(b)(i) of Lord Clarkes judgment) should be stayed under Article 27.
+In my view, if that issue remains live, it should be referred to the CJEU, as I do not regard it as acte clair.
+I see the force of Lord Clarkes view that the English declaration claims do not have le mme objet et la mme cause, if one gives that expression a very narrow effect.
+I also accept that, particularly in the light of the existence of Article 28, there is good reason to give Article 27 a relatively narrow meaning, as Rix J pointed out in Glencore International AG v Shell International Trading and Shipping Co Ltd [1999] 2 Lloyds Rep 692, 697.
+I also accept that the decisions of the CJEU cited by Lord Clarke at paras 26 28 of his judgment support the contention that Article 27 has a relatively narrow ambit of application.
+However, it is also important to appreciate that the fundamental purpose of Article 27, as explained by the CJEU, is to ensure that judgments obtained in one member state are enforceable in other member states, and that the consequence of this is that one should avoid mutually inconsistent judgments.
+The purpose of Article 27 is to help achieve that end.
+It seems to me that, if the Greek court were to give Starlight and OME judgment for a particular sum in respect of its Greek claims, and the English court were to give judgment in favour of LMI and CMI in the form of a declaration that those very claims have been settled or compromised, the two judgments would be incompatible as a matter of principle and logic.
+It is not possible for a court to award a claimant damages in respect of a claim which has been compromised with the defendant.
+To put the point another way, to say that a defendant currently owes a claimant damages in respect of a claim which the defendant has settled or compromised with the claimant involves an illogicality.
+Accordingly, it seems to me that there is a real case for saying that the English declaration claims should be stayed.
+The difference between the English declaration claims and CMIs and LMIs claims in England for an indemnity and damages for breach of the settlement agreements (the English indemnity and damages claims, as described in paras 18(a)(1)(iii), (v) and (vi), 18(a)(2)(iii) and (iv) and 18(b)(ii), (iii) and (iv) of Lord Clarkes judgment) may appear to be relatively small, but I believe that there is a crucial distinction, as a result of which it is acte clair that the English damages and indemnity claims do not fall foul of Article 27.
+The crucial difference is that, if those claims were successful, they could not lead to inconsistent judgments in England and Greece.
+I accept that, if they were successful, the English indemnity and damages claims could be fairly said to neutralise, at any rate in commercial terms, any benefit to Starlight and OME of a judgment in the Greek claims.
+However, crucially in my view, success for LMI and CMI in the English indemnity and damages claims would not be logically inconsistent in any way with success for Starlight in the Greek claims.
+It is not inconsistent (although it is commercially pointless) to say that a defendant is liable to pay a claimant a sum by way of damages, while the claimant is bound to indemnify the defendant in respect of the whole of that sum (or is bound to pay an equivalent sum to the defendant).
+Indeed, the indemnity is not merely logically consistent with the liability: it is positively meaningless without the liability for damages, and the liability for damages, though rendered nugatory by the indemnity, is not logically inconsistent with the indemnity.
+LORD MANCE
+General
+I am in substantial but not complete agreement with the reasoning and conclusions reached in the course of the judgment prepared by Lord Clarke, although, ultimately, as will appear, we agree on the proper disposition of these appeals.
+The differences between Lord Clarke and myself relate to the significance and operation of article 27 of the Council Regulation (EC) No 44/2001 (the Brussels Regulation) with regard to the respondents Greek claims.
+I have no difficulty in agreeing with Lord Clarkes conclusions regarding the English claims made by CMI and LMI for damages for (i) breach of the exclusive jurisdiction clauses in the Settlement Agreements and insurance policies and (ii) indemnity under clauses 3 and 4 of the respective Settlement Agreements.
+Such claims do not assert that there is no tort liability because of the Settlement Agreements.
+They assert (i) that the respondents are claiming in the wrong jurisdiction and (ii) that the respondents have agreed to indemnify them in respect of any tort claims (valid or not) by the respondents themselves as well as by others arising from the loss of the vessel.
+However, I do not accept the reasoning by which Lord Clarke reaches his conclusions with regard to these claims for damages and the further release claims (as Lord Clarke conveniently calls them) which he addresses in paras 40 to 59 of his judgment.
+This difference becomes important in relation to the first head of the release claims, as I shall show.
+One strand of Lord Clarkes reasoning is that the English claims based on the Settlement Agreements cannot be the mirror image of the Greek tort claims, because they involve contract and tort claims and cannot constitute the same cause of action: para 34, third sentence, para 41, second and third sentences and para 43, second and last sentences.
+Another strand is that it is relevant or conclusive that the English and Greek claims do not interfere with each other, and, in particular, that the Greek claims do not impugn the settlement agreements: para 35, first and second sentences and para 37, in its entirety.
+Neither of these strands of reasoning is in my opinion sustainable, for reasons which I will explain.
+The release claims
+The release claims need a little analysis.
+There are three heads.
+The first head is summarised by the respondents themselves and by Lord Clarke (para 18(a)) as involving claims for declarations that the Greek claims fall within the terms of the release.
+But this head is in fact pleaded by LMI as a claim for a declaration that the Greek claims have been settled (application notice, para (1) 1 and 3), while CMI plead that the Greek claims were compromised (particulars of additional claim, para 10) and follow this with a claim for a declaration that the Greek claims fall within clause 2 of the CMI Settlement Agreement (particulars of additional claim, para 27(a)).
+These are clear statements (right or wrong as they may prove to be) that the Greek claims have been settled or compromised within the terms of the Settlement Agreements.
+The second and third heads are claims for a declaration that the bringing of the Greek claims was a breach of the release in each of the Settlement Agreements and for damages for such breach.
+They must stand or fall together.
+They raise different considerations from the first head.
+The first head of release claim
+The English claims that the Greek claims have been settled or were compromised are in my opinion mirror images of the Greek tort claims.
+The English pleas mean, and can only mean that the English claimants are not liable for the Greek tort claims.
+The legal effect of these English statements is (under English eyes and, I am confident, European law) that the Greek claims are no more.
+If an English court were to give a judgment to that effect, and there was no prior Greek judgment or other reason for non recognition, the Greek court ought under the Brussels Regulation to accept it.
+It cannot make any difference to the application of article 27 that the reason for non liability is a contractual settlement agreement.
+The only point of enforcing the contract is to show that there are no valid Greek tort claims.
+The Greek claims aim to enforce tort liabilities.
+The first head of the English claims aims to establish that there are no such valid tort liabilities, because they have been settled.
+The Greek and English claims cannot stand together.
+The concepts used in article 27 (such as cause of action or the concept of same object which one must read into the English text) are autonomous European concepts: Gubisch v Palumbo Case 144/86, [11] and The Tatry Case C 406/92, [47].
+In the latter case, the European Court of Justice said that the cause of action comprises the facts and the rule of law relied on as the basis of the action and that the object of the action for the purposes of article [27] means the end the action has in view [39] [41].
+An analysis of the cases helps to understand what was meant.
+Gubisch v Palumbo happened to concern a situation where the mirror image claims were in a general sense contractual.
+The German claim was for the price of machinery delivered.
+The later Italian claim by the buyer was, firstly, that there was no liability because he had revoked his offer before it had reached the seller for acceptance strictly, this was not a contractual claim, but a claim that there was no contract and, secondly, that, if there was a contract, his consent was vitiated and the contract should be set aside for mistake or on the ground of the sellers fraud, or, thirdly, that any contract had been discharged on account of the sellers late delivery.
+Both the question referred and the Court of Justices summary of the facts embraced all three aspects of the Italian claim: see e.g. judgment [2] and [4].
+The subsequent reasoning and the answer given refer to mirror image claims, one seeking enforcement, the other seeking rescission or discharge, of a contract: see [13] and [15] and the Courts answer.
+The Court said [17] that it must be held that the two actions have the same subject matter, for that concept cannot be restricted so as to mean two claims which are entirely identical.
+The absence of express reference at these points to the first Italian claim (that no contract had ever been concluded) cannot mean that the Court was drawing any distinction between that claim and the other two.
+On the contrary, the inference is that it saw it as posing no different issue.
+It could not have made any difference to the Court of Justices conclusions if, instead of or in addition to some or all of the pleas actually made in the Italian proceedings, the Italian claimants had alleged that the contract had been rescinded or discharged under some separate subsequent agreement, whether, for example, by novation or by some compromise relating to the parties past dealings or outstanding issues.
+Nor, in a situation in which concurrent contract and tort claims are possible (see e.g. Henderson v Merrett Syndicates Ltd [1994] UKHL 5; [1995] 2 AC 145), could it be crucial to the application of article 27 whether the foreign claim was being pursued in contract or tort, when the later English claim asserted a settlement agreement wide enough to cover both.
+Lord Clarke cites at para 28(iii) a useful encapsulation by Cooke J in JP Morgan Europe Ltd v Primacom AG [2005] 2 Lloyds Rep 665, [42], of the meaning of the expression legal rule or rule of law which the Court of Justice used in The Tatry Case C 406/92, [39].
+Cooke J suggested that, in investigating cause, it was necessary, after looking at the basic facts, to look at the basic claimed rights and obligations of the parties.
+Here, the basic claimed rights and obligations of the parties are, in Greece, that the English claimants are liable in tort, and, in England, under the first head which asserts that the Greek claims have been settled, that there is no or no further liability for the Greek claims.
+The way in which article 27 was applied in The Tatry is also of interest.
+Having said that the cause of action comprises the facts and the rule of law relied on as the basis of the action [39], the Court of Justice went on: 40 Consequently, an action for a declaration of non liability, such as that brought in the main proceedings in this case by the shipowners, and another action, such as that brought subsequently by the cargo owners on the basis of shipping contracts which are separate but in identical terms, concerning the same cargo transported in bulk and damaged in the same circumstances, have the same cause of action.
+Here, the English claim that the Greek claims fall within the release and have been settled or compromised concerns, and seeks to negative, the same tort claims as the Greek actions seek to enforce.
+It can make no difference that the Greek claimants have not sought, pre emptively, to refer to, address or impugn in their Greek claims a possible defence (the Settlement Agreements) that might be raised in the Greek proceedings.
+One would not expect them to do so, any more than the German claimants in Gubisch v Palumbo addressed or would be expected to address every or any of the multiple arguments that the Italian claimants later deployed.
+The fact that the English claims do not seek directly to interfere with the Greek claims is also irrelevant.
+It would anyway be impermissible to claim in England an injunction restraining the Greek proceedings, but, quite apart from that, article 27 and the principle in Gubisch v Palumbo do not depend upon one set of proceedings seeking directly to prevent another.
+They derive from the principle that Member States must recognise each others judgments, and the aim of avoiding inconsistent judgments.
+As to the same object, the end which the Greek and English proceedings have in view is the same in each case, to decide the issue of liability for the torts alleged in Greece.
+That this is what is meant by the same object is clear from both Gubisch v Palumbo and The Tatry.
+The matter is directly addressed in the latter case in paras 42 to 45: 42 The question accordingly arises whether two actions have the same object when the first seeks a declaration that the plaintiff is not liable for damage as claimed by the defendants, while the second, commenced subsequently by those defendants, seeks on the contrary to have the plaintiff in the first action held liable for causing loss and ordered to pay damages. 43 As to liability, the second action has the same object as the first, since the issue of liability is central to both actions.
+The fact that the plaintiff's pleadings are couched in negative terms in the first action whereas in the second action they are couched in positive terms by the defendant, who has become plaintiff, does not make the object of the dispute different. 44 As to damages, the pleas in the second action are the natural consequence of those relating to the finding of liability and thus do not alter the principal object of the action.
+Furthermore, the fact that a party seeks a declaration that he is not liable for loss implies that he disputes any obligation to pay damages. 45 In those circumstances, the answer to the fifth question is that, on a proper construction of Article 21 of the Convention, an action seeking to have the defendant held liable for causing loss and ordered to pay damages has the same cause of action and the same object as earlier proceedings brought by that defendant seeking a declaration that he is not liable for that loss.
+The reference in [44] to a partys claim for a declaration of non liability implying that it disputes any obligation to pay damages is equally applicable to the present English claims that the Greek tort claims fall within the release or have been settled or compromised.
+The English claims imply that the Greek claims are disputed.
+In short, the issue of liability is central to both the Greek and the English proceedings here, as it was to the Dutch and English proceedings in The Tatry.
+Not merely the same cause of action but also the same object is involved in the present case, as it was in The Tatry.
+The two sets of proceedings would, if pursued to judgment, lead to judgments which were legally and directly incompatible.
+It is therefore necessary under article 27 to consider whether it is the Greek or the English courts which fall in this connection to be regarded as first seised.
+The second and third heads of the release claims
+The second and third heads are more elusive.
+Claims for a declaration that the bringing of the Greek claims was a breach, and for damages for the breach, of the release in the Settlement Agreements may on one view be seen as little different from the claims made under the first head.
+But I have come to the conclusion that this would be wrong.
+The second and third heads postulate, and for present purposes at least we must accept, that the releases contain some positive continuing promise which the respondents by their Greek claims are now breaching.
+The terms of the releases were in each case (clause 2 in the case of CMI, clause 3 in the case of LMI) that the respondents would accept underwriters due proportion of the relevant payment in full and final settlement of all and any claims it may have under Policy no. against the Underwriters in relation to the loss of Alexandros T. One must make the assumption, for present purposes, that the Greek tort claims fall within this agreement.
+The difficulty is that the agreement was performed, in the sense that there was not merely an accord, but an accord and satisfaction.
+All policy claims were thus not just agreed to be settled, but they actually were settled, and, if and to the extent that that is the nature of the second and third heads of English release claim, they would not in reality differ from the first head.
+The question therefore arises, what if any outstanding promise could there be left to perform which the second and third heads claim to enforce? I have come to the conclusion that the acceptance of the sums paid in full and final settlement involves, certainly very arguably, a continuing outstanding promise not further to pursue claims of the nature identified in clauses 2 and 3 respectively.
+Even after the settlement, the pursuit of such claims could cause CMI and LMI loss.
+Most obviously, such loss could consist in the costs of defending the Greek claims.
+If they let the Greek proceedings go undefended, it could, subject to issues arising from the potential recognition of any Greek judgment under the Brussels Regulation, include the amount of any judgment awarded against them in the Greek proceedings.
+Likewise potentially, though subject to additional questions arising from any potential issue estoppel or application of the rule in Henderson v Henderson (1843) 3 Hare 100, even if they unsuccessfully defended the Greek claims.
+The consequences
+Accordingly, the second and third heads of release claims, analysed as I have analysed them, are outside the scope of article 27.
+As regards the first head, the remaining issue is whether the Greek or the English courts fall for the relevant purpose to be regarded as first seised.
+In so far as the first head of release claims was added into the pre existing English proceedings by an amendment made after the Greek proceedings were begun, is it to be viewed discretely as a new claim of which the English court is second seised? Or does it fall to be viewed as part, by amendment, of a single set of English proceedings commenced well before any Greek proceedings?
+I agree with Lord Clarke at para 60 that a court is only seised of claims by or against new parties from the date that those parties are added to the proceedings.
+In relation to the 2006 proceedings, the English court was only seised of claims against OME once OME was joined to the proceedings on 20 September 2011 and, as against OME therefore, the English courts were only seised of the first head of release claims made by CMI and LMI in 2011.
+Since the first head of release claims is in my opinion the mirror image of the Greek tort claims, article 27 must, on that basis, apply to preclude the pursuit of the first head of release claims as against OME in England.
+The respondents submit that article 27 also applies to preclude the pursuit in the English proceedings of the first head of claim against Starlight, which was party to the English proceedings from their outset.
+The Court of Appeal accepted this submission.
+CMI and LMI challenge it.
+Lord Clarke has in his paras 61 to 71 set out and discussed the respective submissions.
+To my mind, the sense of the Regulation as well as the case law and the academic guidance all point in one direction.
+The chronological priority contemplated by the Regulation cannot be gained, or subverted, by the addition by amendment of a new claim in proceedings otherwise second brought (any more than it can be affected by the addition of new claimants or defendants, as Lord Clarke accepts: para 60).
+To the authorities under the current Regulation to which Lord Clarke refers, I would only add that similar thinking is to be found under the predecessor provisions of Article 21 and 22 of the Brussels Convention in the decisions at both levels in Grupo Torras SA v Shekh Fahad Al Sabah [1995] 1 Lloyds Rep 374, 418 419 (Mance J) and [1996] 1 Lloyds Rep 7, 24 (CA).
+Conclusion
+It follows that the conclusions I would reach, were all the issues to be finally decided now, would be that: The first head of English release claims would be precluded under i) article 27, having regard to what I conclude are in this respect the prior Greek claims. ii) All the remaining heads are outside the scope of article 27 and are permissible.
+It is however necessary to consider whether these conclusions are founded on principles of European law which are so clear that no reference to the Court of Justice is required.
+A reference to the Court of Justice
+In relation to the conclusion expressed in para 161ii, we are all in agreement in our conclusions.
+Any differences in reasoning regarding article 27 are irrelevant, and no reference is necessary.
+As to para 161i, Lord Clarke would reach the opposite conclusion to that which I have expressed and he considers in the light of my judgment that a reference is called for, if the English appellants persist in their first head of release claims.
+With the latter view I agree.
+The differences between Lord Clarkes and my reasoning are not, I believe, simple differences regarding the application to facts of clear principles of European law.
+I might by myself have thought that all the relevant principles of European law were clear, but I certainly do not dissent from the proposition that the differences, being material to our respective conclusions, require a reference.
+If the appellants wish to persist in, rather than abandon, the first head of release claims, there should accordingly be a reference as Lord Clarke suggests.
+Ultimately, therefore, although by different reasoning, Lord Clarke and I arrive at the same conclusions regarding the appropriate disposition of these appeals.
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+This appeal concerns the liability for Value Added Tax (VAT) of a company which markets and arranges holiday accommodation through an on line website.
+The outcome turns on the appropriate characterisation of the relationship between the company, the operators of the hotels, and the holiday makers or their travel agents (which is an English law issue), and the impact of certain provisions of the relevant EU Directive on that relationship once it has been characterised (which is an EU law issue).
+The basic facts
+The appellant, Secret Hotels2 Ltd (formerly called Med Hotels Ltd, and known as Med), marketed holiday accommodation, consisting of around 2,500 resort hotels, villas, and apartments in the Mediterranean and the Caribbean, through a website, www.medhotels.com (the website).
+In these proceedings, everyone has focussed on hotel rooms, and has ignored villas and apartments, and I shall do the same.
+Around 94% of the sales of hotel rooms from the website were made to travel agents who no doubt sold them on to holiday makers; the remainder of the sales were directly to holiday makers.
+An hotelier who wished his hotel to be marketed by Med had to enter into a written agreement with Med headed global hotels Terms and Conditions for allotment contracts, which I will call the Accommodation Agreement.
+Once an hotelier had signed up to the Accommodation Agreement, his hotel would normally be included among those shown on the website.
+When a potential customer (be it travel agent or holiday maker) logged onto the website, she would see some Terms of Use.
+If, after considering what was available, she identified a hotel at which she (or a client) wished to stay, she would book a holiday through a form on the website, which set out standard Booking Conditions, which included, of course, terms as to payment.
+The customer had to pay the whole of the sum which she had agreed with Med to pay for the holiday (which I will call the gross sum) before the holiday maker arrived at the hotel.
+However, Med only paid the hotel a lower sum (which I will call the net sum) in respect of the holiday concerned, pursuant to an invoice which was rendered by the hotelier when the holiday had ended.
+The relevant VAT law
+These proceedings concern Meds liability to VAT in respect of the supply of hotel accommodation through the medium of the website between the period between December 2004 and May 2007 (the relevant period).
+VAT is, of course, an EU tax, which is levied on the supply of goods or services.
+For the majority of the relevant period, the primary source of law on VAT was contained in Directive 77/388/EEC (the Sixth Directive), but on 1 January 2007 it was replaced by Directive 2006/112/EC (the Principal VAT Directive).
+As the two Directives contain effectively identical, although somewhat differently worded, provisions for present purposes, I will limit my references to the current one, and all references to articles are to articles of that Directive, unless stated otherwise.
+By article 2.1(c), VAT is liable to be levied on the supply of goods for consideration within the territory of a Member State by a taxable person acting as such.
+By virtue of article 135(2)(a), while leasing of property is exempt from VAT, the provision of accommodation in the hotel sector or in sectors with a similar function is not.
+Article 45 states that The place of the supply of services connected with immovable property shall be the place where the property is located .
+The application of article 45 to travel agents could often result in their having to be registered in many member states, which could be inconvenient both for travel agents and for member states taxing authorities.
+Accordingly, articles 306 310 contain a special scheme relating to travel agents.
+Article 306, which is the crucial provision for present purposes, is in these terms (albeit adding sub paragraphs to para 1): Article 306 1. [(a)] Member States shall apply a special VAT scheme, in accordance with this Chapter, to transactions carried out by travel agents who deal with customers in their own name and use supplies of goods or services provided by other taxable persons, in the provision of travel facilities. [(b)] This special scheme shall not apply to travel agents where they act solely as intermediaries and to whom point (c) of the first paragraph of Article 79 applies for the purposes of calculating the taxable amount. 2.
+For the purposes of this Chapter, tour operators shall be regarded as travel agents.
+Article 79(c) excludes from liability to VAT the amounts received by a taxable person from the customer, as repayment of expenditure entered in his books in a suspense account.
+Articles 307 and 308 are also of some relevance, and (with the paragraph numbering added to article 307) they provide as follows: Article 307 1.
+Transactions made, in accordance with the conditions laid down in Article 306, by the travel agent in respect of a journey shall be regarded as a single service supplied by the travel agent to the traveller. 2.
+The single service shall be taxable in the Member State in which the travel agent has established his business or has a fixed establishment from which the travel agent has carried out the supply of services.
+Article 308 The taxable amount and the price exclusive of VAT, within the meaning of point (8) of Article 226, in respect of the single service provided by the travel agent shall be the travel agent's margin, that is to say, the difference between the total amount, exclusive of VAT, to be paid by the traveller and the actual cost to the travel agent of supplies of goods or services provided by other taxable persons, where those transactions are for the direct benefit of the traveller.
+Provisions equivalent to articles 306 310 were contained in article 26 of the Sixth Directive (which was slightly different in both wording and layout, but identical in its central provisions and effect).
+They were given effect in the United Kingdom through the Tour Operators Margin Scheme (known as TOMS), which was promulgated in the Value Added Tax (Tour Operators) Order 1987 (SI 1987/1806).
+It is unnecessary to set out the provisions of TOMS as it has never been suggested that they have any different effect from articles 306 310.
+The contentions of the parties in summary
+HM Commissioners for Revenue and Customs (the Commissioners) assessed Med for VAT in respect of the relevant period on the basis that TOMS applied.
+The Commissioners justified this on the ground that Med was a travel agent within the meaning of article 306, which deal[t] with customers [namely travel agents and, less frequently, holiday makers directly] in [its] own name and use[d] the services of other taxable persons [namely the hoteliers] in the provision of travel facilities.
+In effect, the Commissioners analysis was that Med booked a room in a hotel for the net sum, which it paid to the hotelier when the holiday had ended, and Med supplied the room to its customer in return for the gross sum, which it received in advance of the holiday.
+On that basis, it is agreed that Med would be a travel agent whose operations fell within article 306.1(a), and it would therefore be liable for VAT in accordance with article 307.1, namely on the gross sum paid by the customer to Med.
+Further, by virtue of article 307.2, the VAT would be levied in the UK, as that was Meds place of business.
+On the Commissioners approach, therefore, where a customer had booked and paid for a holiday in Greece, by virtue of articles 306 and 307, as enacted through TOMS, Med would be liable to the Commissioners for VAT on the margin.
+Med challenged this assessment on the ground that the nature of its business was such that it did not fall within article 306.1(a), but within article 306.1(b).
+This was on the basis that it was, during the relevant period, a travel agent which was act[ing] solely as [an] intermediar[y]. (Although article 306.1(b) also contains a requirement that point (c) of the first paragraph of article 79 must appl[y] for the purposes of calculating the taxable amount, it is common ground that it would so apply if Med was act[ing] solely as [an] intermediar[y].) Meds analysis of the position was that, through Meds agency, the hotelier supplied a hotel room to a customer for the gross sum, and that Med was entitled to the difference between the gross sum and the net sum as a commission from the hotelier for acting as his agent.
+On Meds approach, TOMS would not apply, and it is agreed that the difference between the gross sum and the net sum would be Meds commission for providing services to the hotelier, who was entitled to the gross sum from the customer.
+On that basis, the prima facie position would be as follows: (i) Med would have to register for VAT in Greece, (ii) it would have to pay VAT to the Greek taxation authorities on its commission, (iii) the hotelier would have to account for VAT on the gross sum, but (iv) the hotelier would be able to set off against its liability for that VAT, the input tax on the commission.
+However, by virtue of regulation 14(2) of the Value Added Tax Regulations 1995 (SI 1995/2518), there was an alternative way of accounting for VAT if Meds analysis was correct and TOMS did not apply, namely the so called reverse charge procedure.
+Under this procedure, provided for in article 194, the hotelier would account for the VAT on the gross sum to the Greek authorities, so that Med would not have to pay any VAT.
+The procedural history
+The Commissioners analysis based on TOMS resulted in their assessing Med to liability for VAT in respect of the relevant period in the sum of 5,643,736.
+Med challenged this assessment, but its challenge was rejected by the First Tier Tribunal (FTT, Miss J C Gort and Mr A McLoughlin) after a four day hearing in a carefully reasoned judgment [2010] UKFTT 120 (TC).
+The FTT identified the main issue as being: Does [Med] act as a principal, as the Commissioners allege, or as an agent, as [Med] contends, when making the supplies of hotel accommodation? It is common ground that if the Commissioners are correct then [Med] is in principle required to account for output tax under the TOMS and if [Med] is correct then the supplies are treated as taking place in the jurisdiction in which the hotel belongs (and are, therefore, outside the scope of UK VAT).
+The FTT answered that question in favour of the Commissioners.
+In arriving at this conclusion, they took into account both the contractual documentation and the way in which Meds business was conducted.
+They considered that the principal document for our consideration is the contract between [Med] and the hotel.
+After taking into account the way in which Med conducted its business, the FTT concluded that the document as a whole was not consistent with the notion that Med was the agent and the hotel the principal.
+Accordingly, the FTT dismissed Meds appeal.
+Med appealed against that decision to the Upper Tribunal, where its appeal was allowed by Morgan J [2011] UKUT 308 (TCC).
+He made the point that the agreed issue as identified by the FTT (see para 14 above) was not entirely satisfactory, as a result of which the issue was reformulated in these terms by the parties: whether the [FTT] was entitled to find (as a matter of law and fact) that [Med] was supplying accommodation services as principal, in which case it was required to account for VAT in the United Kingdom, or whether it should have found that [Med] was acting as agent for a disclosed principal, in which case the supplies of accommodation services fell to be treated as made in the jurisdiction in which the hotel was situated and so do not give rise to any liability to VAT in the United Kingdom.
+Morgan J considered that the FTT should not have addressed the issue by simply considering only part of the contractual documentation together with the way in which Med conducted its business.
+Rather, they should have started by assessing the effect of the totality of the contractual documentation, and only then asked themselves whether their assessment was altered by the way in which Med conducted its business.
+He approached the issue on that basis, and first decided that (i) the contractual arrangements between Med and the customers established that Med was contracting as agent for the hotelier, and (ii) the contractual arrangements between Med and the hoteliers were consistent with that conclusion.
+He then turned to various factors which impressed the FTT as to the way in which Med carried on business, and decided that none of those facts justified rejecting the view that Med was an agent acting for a disclosed principal.
+Morgan Js decision was appealed by the Commissioners to the Court of Appeal, who allowed their appeal for reasons given in a judgment by Sir John Chadwick, with which Ward and McFarlane LJJ agreed [2012] EWCA Civ 1571.
+They held that Morgan J was wrong to criticise the FTT for looking at the whole facts of the case as opposed to concentrating on the contractual documentation.
+They also held that the FTT was plainly entitled to reach the conclusion that they did, in the light of the contractual documentation and the way in which Med conducted its business.
+At the end of his judgment, Sir John identified a number of aspects of the way in which Med conducted its business which he regarded as being of particular weight in justifying the conclusion that it was a principal rather than an agent in terms of supplying hotel rooms to customers.
+Med now appeals to this Court.
+Overview of the issues
+The outcome of this appeal ultimately turns on the question whether Meds activities in relation to the provision of hotel rooms to customers fell within article 306.1(a) or article 306.1(b).
+That question must be decided by the proper application of the provisions of article 306 to the circumstances of this case.
+Once the appropriate tribunal has identified and applied the relevant legal principles, it is ultimately a question of fact for that tribunal whether a travel agent falls within para 306.1(a) or para 306.1(b).
+Accordingly, as the Court of Appeal held, it would only have been open to Morgan J to reverse the FTTs decision if (i) they had wrongly analysed the law, ie if they had been wrong in their view as to legal effect of the contractual relations and subsequent facts, or had wrongly interpreted or applied article 306, or (ii) the FTT had reached a conclusion which no reasonable tribunal could have reached.
+So far as the law is concerned, what article 306 means and how it is to be applied is a matter of EU law, a topic on which the decisions of the Court of Justice of the European Community, the CJEU, are binding on national courts see eg Customs and Excise Commissioners v Madgett and Baldwin (Joined cases C 308/96 and C 94/97) [1998] STC 1189.
+That case decided that the predecessor of article 306 applied not just to travel agents, but to all traders who habitually arrange travel or tours and, in order to supply the services generally associated with activities of that kind, have recourse to other taxable persons see para AG33.
+However, in so far as the provisions of article 306 depend upon the precise nature and character of the contractual relationship between two or more parties, that issue must be determined by reference to the proper law of the contract or contracts concerned, and, in so far as the subsequent conduct of the parties is said to affect that nature and character, the effect must also be assessed by reference to the proper law of the contract or contracts.
+In that connection, it is worth referring to the observation of the CJEU in Revenue and Customs Commissioners v RBS Deutschland Holdings GmbH (Case C 277/09) [2011] STC 345, para 53, that taxable persons are generally free to choose the organisational structures and the form of transactions which they consider to be most appropriate for their economic activities and for the purposes of limiting their tax burdens, albeit that this is subject to an exception for abusive transactions as discussed in Halifax plc v Customs and Excise Commissioners (Case C 255/02) [2006] Ch 387.
+The correct approach to article 306
+Article 306.1 postulates two categories of travel agent, namely (a) those who deal with customers in their own name and use supplies of goods or services provided by other taxable persons, in the provision of travel facilities, and (b) those who act solely as intermediaries.
+The parties were agreed that the two categories were mutually exclusive, but also that, taken together, they were comprehensive in the sense that a travel agent arranging accommodation for a customer must fall within one of the two categories.
+It may be that the proper analysis is that advanced by Lord Sumption during the hearing, namely that a travel agent can only be within article 306 if it falls within category (a), but it would be taken out of the article if it also falls within category (b).
+However, it is unnecessary to decide whether that is right, at least for present purposes.
+So far as the meaning of in their own name is concerned, some useful guidance was given by the CJEU in relation to the expression in a case concerned with the provisions in the Sixth Directive relating to an operator who received bets, arguably on behalf of a bookmaker.
+In Belgium v Henfling (Case C 464/10) [2011] STC 1851, para 33, the CJEU said that involvement in his own name means that a legal relationship is brought about not directly between the better and the undertaking on behalf of which the operator involved acts, but between that operator and the better, on the one hand, and between that operator and that undertaking, on the other.
+There appears to be no case in the CJEU where the meaning of the word intermediaries has been considered.
+However, it would seem at any rate in most cases to be the equivalent of agents in English law, although both parties were (rightly in my view) inclined to accept that it had a wider meaning than agents.
+In particular, it was not suggested to be a term of article
+The CJEU has given guidance as to the proper approach to be adopted in a case such as the present.
+In Beheersmaatschappij Van Ginkel Waddinxveen BV v Inspecteur der Omzetbelasting, Utrecht (Case C 163/91) [1996] STC 825, para 21, the court said that the predecessor of article 306.1(a) in the Sixth Directive: makes the application of that article subject to the condition that the travel agent shall deal with customers in his own name and not as an intermediary.
+It is for the national court before which a dispute concerning the application of these provisions is brought to inquire, having regard to all the details of the case, and in particular the nature of the travel agent's contractual obligations towards the traveller, whether or not that condition is met.
+The point was taken a little further in Revenue and Customs Commissioners v Newey (Case C 653/11) [2013] STC 2432, where the CJEU said this, reflecting what it had said in a number of earlier decisions: 42.
+As regards in particular the importance of contractual terms in categorising a transaction as a taxable transaction, it is necessary to bear in mind the case law of the court according to which consideration of economic and commercial realities is a fundamental criterion for the application of the common system of VAT . 43.
+Given that the contractual position normally reflects the economic and commercial reality of the transactions and in order to satisfy the requirements of legal certainty, the relevant contractual terms constitute a factor to be taken into consideration when the supplier and the recipient in a supply of services transaction within the meaning of articles 2(1) and 6(1) of the Sixth Directive have to be identified. 44.
+It may, however, become apparent that, sometimes, certain contractual terms do not wholly reflect the economic and commercial reality of the transactions. 45.
+That is the case in particular if it becomes apparent that those contractual terms constitute a purely artificial arrangement which does not correspond with the economic and commercial reality of the transactions.
+Where the question at issue involves more than one contractual arrangement between different parties, this Court has emphasised that, when assessing the issue of who supplies what services to whom for VAT purposes, regard must be had to all the circumstances in which the transaction or combination of transactions takes place per Lord Reed in Revenue and Customs Commissioners v Aimia Coalition Loyalty UK Ltd [2013] 2 All ER 719, para 38.
+As he went on to explain, this requires the whole of the relationships between the various parties being considered.
+The correct approach in domestic law
+Where parties have entered into a written agreement which appears on its face to be intended to govern the relationship between them, then, in order to determine the legal and commercial nature of that relationship, it is necessary to interpret the agreement in order to identify the parties respective rights and obligations, unless it is established that it constitutes a sham.
+When interpreting an agreement, the court must have regard to the words used, to the provisions of the agreement as whole, to the surrounding circumstances in so far as they were known to both parties, and to commercial common sense.
+When deciding on the categorisation of a relationship governed by a written agreement, the label or labels which the parties have used to describe their relationship cannot be conclusive, and may often be of little weight.
+As Lewison J said in A1 Lofts Ltd v Revenue and Customs Commissioners [2010] STC 214, para 40, in a passage cited by Morgan J: The court is often called upon to decide whether a written contract falls within a particular legal description.
+In so doing the court will identify the rights and obligations of the parties as a matter of construction of the written agreement; but it will then go on to consider whether those obligations fall within the relevant legal description.
+Thus the question may be whether those rights and obligations are properly characterised as a licence or tenancy (as in Street v Mountford [1985] AC 809); or as a fixed or floating charge (as in Agnew v IRC [2001] 2 AC 710), or as a consumer hire agreement (as in TRM Copy Centres (UK) Ltd v Lanwall Services Ltd [2009] 1 WLR 1375).
+In all these cases the starting point is to identify the legal rights and obligations of the parties as a matter of contract before going on to classify them.
+In English law it is not permissible to take into account the subsequent behaviour or statements of the parties as an aid to interpreting their written agreement see FL Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235.
+The subsequent behaviour or statements of the parties can, however, be relevant, for a number of other reasons.
+First, they may be invoked to support the contention that the written agreement was a sham ie that it was not in fact intended to govern the parties relationship at all.
+Secondly, they may be invoked in support of a claim for rectification of the written agreement.
+Thirdly, they may be relied on to support a claim that the written agreement was subsequently varied, or rescinded and replaced by a subsequent contract (agreed by words or conduct).
+Fourthly, they may be relied on to establish that the written agreement represented only part of the totality of the parties contractual relationship.
+In the present proceedings, it has never been suggested that the written agreements between Med and hoteliers, namely the Accommodation Agreements, were a sham or liable to rectification.
+Nor has it been suggested that the terms contained on the website (the website terms), which governed the relationship between Med and the customers, namely the Terms of Use and the Booking Conditions, were a sham or liable to rectification.
+In these circumstances, it appears to me that (i) the right starting point is to characterise the nature of the relationship between Med, the customer, and the hotel, in the light of the Accommodation Agreement and the website terms (the contractual documentation), (ii) one must next consider whether that characterisation can be said to represent the economic reality of the relationship in the light of any relevant facts, and (iii) if so, the final issue is the result of this characterisation so far as article 306 is concerned.
+This is a slightly more sophisticated analysis than the single issue as it has been agreed between the parties, as set out in para 16 above, but, as will become apparent, at least in the circumstances of this case, it amounts to the same thing.
+In order to decide whether the FTT was entitled to reach the conclusion that it did, one must identify the nature of the relationship between Med, the hotelier, and the customer, and, in order to do that, one must first consider the effect of the contractual documentation, and then see whether any conclusion is vitiated by the facts relied on by either party.
+The effect of the documentation
+The provisions of the contractual documentation were set out extensively in the Tribunal decisions below see paras 27 36 of the FTTs decision, and paras 10 40 of Morgan Js decision.
+In my view, both the Accommodation Agreement and the website terms make it clear that, both as between Med and the hotelier, and as between Med and the customer, the hotel room is provided by the hotelier to the customer through the agency of Med, and the customer pays the gross sum to the hotelier, on the basis that the amount by which it exceeds the net sum is to be Meds commission as agent.
+Turning first to the Accommodation Agreement, it begins by identifying the hotelier as the Principal and Med as the Agent, and goes on to provide that, for a specified season, certain types (and sometimes certain numbers) of rooms in the hotel will be available at certain rates (which are what I have called the net sums), as set out in an attached rate sheet.
+The Accommodation Agreement then states that the Principal hereby appoints the Agent as its selling agent and the Agent agrees to act as such.
+It immediately goes on to provide that the Agent agrees to deal accurately with the requests for accommodation bookings and relay all monies which it receives from the Principals Clients (Clients) which are due to the Principal.
+The Agreement also states that it is to be construed in accordance with English law and that the English courts have exclusive jurisdiction.
+Subject to the other provisions of the Accommodation Agreement showing otherwise, the nature of the intended relationship appears to be quite clear.
+Med is to be the hoteliers agent for the purpose of marketing rooms in the hotel, and Clients, or customers as I have called them, will book rooms through the agency of Med directly with the hotelier.
+The Commissioners rely on four aspects of the Accommodation Agreement to justify the contention that it is not in fact an agency arrangement, but that, in truth, it envisages that Med will book rooms itself, with a view to sub booking them on to customers.
+First, there is the basic financial arrangement under which Med was entitled to receive a commission calculated as any sum charged to a Client by the Agent which is over and above the prices set out in the rate sheet.
+Secondly, some of the financial provisions are said to be inconsistent with agency relationship.
+Thirdly, it is said that the terms of the Accommodation Agreement include provisions which indicate that Meds interest is wider than that of a mere agent such as covenants by the hotelier to honour customers bookings, to insure the hotel against a number of risks, to keep the hotel clean, and to permit Meds representative to inspect the hotel.
+Fourthly, the Accommodation Agreement was very one sided, in that it contained no express obligations on Med beyond those in the opening provision quoted in para 38 above, not even an obligation to promote the hotel, whereas there were many obligations imposed on the hotelier.
+I am unimpressed with these points.
+They all stem from, and reflect, the fact that Med had a substantial business based on the website (as is evidenced by Meds turnover, the number of hotels for which it had an exclusive agency, and the fact that it was a member of a large group of companies including lastminute.com).
+This in turn means that it had built up a substantial goodwill in the holiday making market which it wished to protect, and that it was in a much more powerful negotiating position than the hoteliers with which it was contracting.
+More specifically, there is no reason why an agent should not be able to fix its own commission.
+It is common for agents acting in the sale of financial products, eg many types of insurance policies, to do so, and it has been specifically held to be an arrangement which is consistent with agency see Mercantile International Group plc v Chuan Soon Huat Industrial Group Ltd [2002] 1 All ER (Comm) 788.
+As to the other financial terms, it is true that the hotelier was obliged to compensate Med for its losses (including loss of commission) if it did not provide the accommodation it had agreed to provide to a customer, and that Med was entitled to retain the equivalent of the last 100 bed overnights as a guarantee to cover marketing costs for the next season.
+I do not see why such provisions are inconsistent with a principal and agent relationship: all they did was to reflect the relative negotiating positions of the parties.
+The fact that the hotelier agreed to do things which would be of benefit to people staying in the hotel is easily explained by the point that Med was anxious to maintain its goodwill among holiday makers and travel agents, and was in a strong enough bargaining position to impose such terms on the hotelier.
+Turning to the website terms, the Terms of Use explained that Med provides information concerning the price and availability of hotels and that [a]ny reservations you make on this site will be directly with the company whose hotel services you are booking.
+They also emphasised that Med acts as agent only for each of the hotels to provide you with information on the hotels and an on line reservation service.
+As for the Booking Conditions, they began by stating that Med act[s] as booking agents on behalf of all the hotels featured on this website and your contract will be made with these accommodation providers.
+They also stated that [o]nce the contract is made, the accommodation provider is responsible to you to provide you with what you have booked and you are responsible to pay for it.
+The Booking Conditions also explained that [b]ecause [Med is] acting only as a booking agent, it has no liability for any of the accommodation arrangements.
+The Booking Conditions also provide that they are governed by English law and that any dispute is to be determined by the English courts.
+The Commissioners point to one or two provisions of the Booking Conditions which, they say, are inconsistent with the notion that Med was only acting as the hoteliers agent rather than as a principal.
+First, if a customer (i) made a change to a booking or (ii) cancelled a booking, she was liable to pay to Med (i) an administration charge of 15, or (ii) a cancellation charge, whose quantum depended on how late the cancellation occurred, and in neither case did it appear that the charge was passed on to the hotelier.
+Secondly, if the hotelier was unable to provide the room as booked, Med agreed to try to provide [the customer] with similar accommodation of equal standard, but if this was not possible, Med would allow a cancellation free of charge.
+I do not consider that either of these points undermine the conclusion that Med was acting as the hoteliers agent.
+The failure to account for the administration charge is irrelevant; there is no reason to think that it did not reflect the genuine cost to Med.
+The failure to account for the cancellation charge, the no show forfeit, and the interest on the deposits is more striking.
+As a matter of law, these sums would have been payable to the hotelier, but the fact that they were not so paid represents a breach of the agency arrangement on the part of Med or an accepted variation of the Accommodation Agreement, either of which would merely have reflected the relative bargaining positions of Med and the hotelier, and did not alter the nature of the relationship of the arrangement between Med, the hotelier and the customer.
+As to Meds obligation to try to provide alternative accommodation, it is clear, as a matter of interpretation, that the obligation could, and no doubt in practice would, have involved Med procuring the provision of accommodation by another hotelier; in any event, the obligation was clearly included to protect Meds goodwill.
+The factors relied on by the FTT and the Court of Appeal
+Having decided that the effect of the contractual documentation between hoteliers, Med, and customers is that Med marketed and sold hotel accommodation to customers as the agent of the hoteliers, I turn to consider the characteristics of the way in which Med conducted its business which persuaded the FTT and the Court of Appeal that Med in fact marketed and sold the hotel accommodation to customers as a principal.
+At the end of his judgment, Sir John Chadwick summarised the main factors as follows (with the addition of subparagraphs and adaptations to reflect the terminology adopted in this judgment): (1) Med dealt with customers in its own name (a) in respect of the use of its website and (b) in the services of its local handling agents. (2) Med dealt with customers in its own name (and not as intermediary) in those cases where the hotel operator was unable to provide accommodation as booked and the customer rejected the alternative accommodation offered. (3) Med dealt with matters of complaint and compensation in its own name and without reference to the hotelier. (4) Med used the services of other taxable persons (the hoteliers) in the provision of the travel facilities marketed through its website. (5) In relation to VAT, Med dealt with hoteliers in other Member States in a manner inconsistent with the relationship of principal and agent.
+In particular, Med did not provide the hoteliers with invoices in respect of its commission (nor even notify the hoteliers of the amount of that commission); so making it impossible for the hoteliers to comply with their obligations to account to the tax authorities of that Member State in accordance with the Principal VAT Directive. (6)(a) Med treated deposits and other monies which it received from customers and their agents as its own monies.
+It did not account to the hoteliers for those monies. (b) It did not enter those monies in a suspense account so as to take advantage of article 79(c); and so cannot rely on the exclusion from the scope of article 306.1(b).
+The Commissioners also rely on the points that (7) hoteliers would invoice Med for the net sum in respect of each customer at the end of the relevant holiday, and (8) Med reserved a number of rooms, and sometimes specific rooms, in many hotels for which it paid the net sum in advance.
+There is nothing in factor (1)(a): until a customer selected a particular hotel on the website, Med had to deal with the customer in its own name, but that does nothing to undermine the point that, once a hotel was selected, Med acted as the hoteliers agent.
+As to factor 1(b), it is true that Med appointed its own local agents to look after holiday makers, but that was not inconsistent with its status as an agent of the hotelier, and is easily explicable by reference to Meds need to maintain goodwill in the holidaymaking market.
+The Commissioners relied on some of the terms of Meds standard form Handling Agency Agreement, but they take matters no further.
+Factor (2) is of no assistance: I have already discussed it at para 44 above.
+Factor (3) is correct, and can be said to be contrary to one of the terms of the contractual documentation, which envisage a customer sorting out complaints with the hotelier.
+However, particularly given that (i) Med recovered from the hotelier any compensation which it negotiated and paid to a holiday maker and (ii) Meds activities in this connection were not inherently inconsistent with its status as the hoteliers agent (albeit an agent in a strong bargaining position), the departure from the contractual terms was not of significance for present purposes.
+Factor (4) takes matters no further either.
+As to factor (5), it is quite true that Med failed to provide the hoteliers with the information necessary to enable them to provide proper VAT returns, and that it failed to account for VAT as it should have done if it had been the hoteliers agent as it contends.
+It is also true that this can be said to represent some sort of indication that the arrangements were not as the contractual documentation suggests.
+However, not only is it not a very strong point in itself, but, as Morgan J said, while Med did not account for VAT in accordance with its contentions as to the legal position, it did not account for VAT in accordance with the Commissioners contentions as to the legal position either.
+Factor (6)(a) is of no assistance, and my remarks about the cancellation charge in para 44 above apply.
+Factor (6)(b) is merely an aspect of factor (5).
+As to factor (7), if Med was an agent as it contends, one would have expected the hoteliers invoices to have been for the gross sums with a deduction for Meds commission, and the fact that they were for the net sums is consistent with the Commissioners analysis.
+However, the invoices are not financially inconsistent with the contractual arrangements contended for by Med, as the hotelier would expect Med to pay the net sum, not the gross sum.
+In any event, at least on their own, such invoices cannot change the nature of the contractual arrangements between Med, the customer and the hotelier, given that (i) they post date not merely the contracts but their performance, and (ii) the customer was not aware of the invoices, so it is hard to see how they could affect her contractual rights or obligations.
+As to factor (8), it seems to me that there is nothing inconsistent in terms of logic or law in Med reserving a hotel room in its own name in anticipation of subsequently offering it on the market, on the basis that a customer who booked the room would not contract with Med, but would contract through Med with the hotelier.
+The purpose of Med reserving rooms in this way is obvious, namely to maximise its opportunity to earn commission and to maintain or improve its goodwill with potential customers.
+The fact that Med had to pay for the rooms it reserved is unsurprising, but such payments were always recoverable, in that, if there were insufficient bookings by customers at the hotel for the season in question, the amount paid by Med was carried forward to the next season.
+Of course, Med ran a risk of losing its money, but that fact does not undermine the notion that Med acted as an agent.
+The Commissioners contend that the factors identified in para 45 above justify the conclusion that the agency arrangement was somehow varied by the parties conduct, and in particular the conduct of Med, as the commercially dominant party, so that it became the person providing the customers with hotel rooms, as opposed to the agent of the hoteliers who provided the rooms.
+It is unnecessary to address the question of how such a contention might be analysed in legal terms, because, for the reasons given in paras 46 49 above, those factors, even taken together, are not inconsistent with, and therefore cannot undermine, the existence and nature of the agency arrangement.
+The decisions below
+The decision of the FTT cannot stand, as they appear to have held that, after taking into account the way in which Med conducted its business, the true effect of the written contractual arrangements between Med and the hoteliers was not that Med was an agent through whom the hotelier provided the customer with a room, but that the hotelier provided Med with a room which Med then provided on to the customer.
+For the reasons I have given, that analysis is unsustainable.
+The decision of Morgan J to the contrary effect was right, and I shall consider his conclusion further in the next section of this judgment.
+Given that the FTT was wrong in its legal analysis of the relationship between Med, hoteliers and customers, the Court of Appeals decision, which was based on the conclusion that the FTT adopted a permissible approach, cannot stand.
+In these circumstances, as Morgan J was right to reverse the FTTs decision, and analysed the legal relationship between Med, the hoteliers and customers correctly, we should uphold his conclusion, unless we consider that he then went wrong in relation to the question of the application of article 306 to the facts of this case, an issue to which I now turn.
+If he did go wrong, then we should, if possible, resolve that question ourselves.
+The application of article 306 to the facts of this case
+Given that I have concluded [Med] was acting as agent for a disclosed principal, the consequence according to the agreed reformulated issue (set out in para 16 above) would appear to be that the supplies of accommodation services fell to be treated as made in the jurisdiction in which the hotel was situated and so do not give rise to any liability to VAT in the United Kingdom.
+However, as a matter of principle, it is necessary to address the question whether, as a matter of EU law, the fact that Med was acting as an agent does justify that conclusion.
+As explained above, the characterisation of the relationship between Med, customers, and hoteliers is a matter of English law, but the ultimate issue on this appeal is an issue of EU law, namely whether, in the light of that characterisation, Med is liable for VAT as the Commissioners allege, and that issue must be resolved by applying article 306 to the facts of this case, which include the fact that Med is an agent as it contends.
+The reformulated issue effectively assumes the correctness of the proposition that, once it is concluded as a matter of English law, that the effect of the contractual documentation and the way in which the parties conducted their relationship was that Med was an agent for the hotelier with whom a customer booked accommodation, as opposed to a principal who booked accommodation with the hotelier and then booked it on to a customer, Med fell within article 306.1(b), rather than article 306.1(a).
+That is not an assumption which can safely be made in every case, but it seems to me that in the general run of cases, such a proposition will be correct.
+It seems to me clear from the guidance given by the CJEU in Henfling (quoted in para 26 above) that the concepts of an intermediary and an agent are similar, as are the concepts of a person dealing in his own name and a principal.
+Furthermore, the CJEUs suggested approach as to how the issue should be determined seems very similar to that of the English court.
+I have in mind what was said in Van Ginkel and Newey (quoted in paras 28 and 29 above), namely that the travel agents contractual obligations towards the traveller are of particular importance in deciding whether article 306.1(a) or article 306.1(b) applies, but it is also necessary to hav[e] regard to all the details of the case, and, in that connection, the economic and commercial realities represent a fundamental criterion.
+A contract which does not reflect economic reality and a purely artificial arrangement are similar to the shams, rectifiable agreements and other arrangements considered in para 33 above.
+Thus, in deciding whether article 306.1(a) or article 306.1(b) applies, the approach laid down by the CJEU in order to decide whether a person such as Med is an intermediary is very similar to the approach which is applied in English law in order to determine whether Med was an agent, ie the very exercise undertaken in paras 31 50 above.
+One starts with the written contract between Med and the customer, as it is the customer to whom the ultimate supply is made.
+However, one must also consider the written contract between Med and the hotelier, as there would be a strong case for saying that, even if Med was the hoteliers agent as between it and the customer, Med should nonetheless be treated as the supplier as principal (in English law) or in its own name (in EU law) if, as between the hotelier and Med, the hotel room was supplied to Med.
+For the reasons set out in paras 36 44 above, I consider that the contractual documentation supports the notion that Med was an intermediary, and, in the light of the discussion in paras 45 50 above, it seems to me that economic reality does not assist a contrary view.
+Further, one aspect of economic reality is that it is the hotelier, not Med, who owns the accommodation and it is the customer, not Med, to whom it is ultimately supplied: that does not, of course, prevent the hotelier supplying the accommodation to Med for supply on to the customer, but it makes it hard to argue that Meds analysis that it is no more than an agent is contrary to economic reality.
+Further, one must be careful before stigmatising the contractual documentation as being artificial, bearing in mind that EU law, like English law, treats parties as free to arrange or structure their relationship so as to maximise its commercial attraction, including the incidence of taxation see RBS Deutschland, cited in para 24 above.
+As is realistically, if impliedly, acknowledged by the Commissioners (and indeed by Med) in the reformulated agreed issue on this appeal (as set out in para 16 above), once it has been decided that Med was, as it contends, the hoteliers agent in relation to the supply of accommodation to customers as a matter of English law, it follows, at least on the facts of this case, that it was an intermediary for the purpose of article 306.1, and accordingly this appeal must succeed.
+It may be that Morgan J was wrong not to go on to consider the EU law issue, but it is scarcely surprising that he did not do so in the light of the agreed formulation of the issue before him.
+Indeed, as appears from the discussion in paras 53 57 above, EU law and English law in this case seem to travel along effectively the same lines, and accordingly I consider that Morgan J reached the right conclusion for substantially the right reasons.
+Conclusion
+I would accordingly allow Meds appeal, discharge the order of the Court of Appeal, and restore the order of Morgan J in the Upper Tribunal.
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+It is the role of the common law to adapt to meet new circumstances and challenges.
+Mesothelioma has been and is a tragedy for individuals and families.
+It is caused by exposure to the inhalation of asbestos dust, and has a gestation period measured typically in decades.
+The more fibres inhaled, the greater the risk of contracting mesothelioma.
+But, beyond that, its specific causation is highly uncertain: see Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10, [2011] 2 AC 229, para 19, Durham v BAI (Run off) Ltd [2012] UKSC 14, [2012] 1 WLR 867, para 6.
+It was thought it might be caused by a single fibre, but Lord Phillips annex to his judgment in Sienkiewicz, part A, paras 10 11, notes that the process of causation may involve (different) fibres acting in a way which gives rise to a series of as many as six or seven genetic alterations, ending with a malignant cell in the pleura.
+In any event, the evidential uncertainties about its causation led the House of Lords in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32 to create a special common law rule, operating within what may be called the Fairchild enclave, to govern liability between victims and those who in breach of duty had exposed them to asbestos dust.
+Following the Houses decision in Barker v Corus UK Ltd [2006] UKHL 20, [2006] 2 AC 572, this special rule was fortified by the Compensation Act 2006.
+Unsurprisingly, the courts are still working out the implications.
+Courts which have embarked on it have had to focus on disputes gradually shifting from (a) the position between victims and those responsible for their exposure, on which substantial authority now exists under English law, to (b) the position between persons so responsible and their insurers.
+This appeal and the conclusions I reach on it are concerned exclusively with situations falling within the special rule.
+The appeal, brought by Zurich Insurance plc (Zurich) as appellant against International Energy Group Ltd (IEG) as respondent, raises points under both (a) and (b).
+The issues under (a) are subject to Guernsey law, and there is a difference between the English and Guernsey statute law.
+The parties are however agreed that Guernsey common law is to be treated as identical with English common law on this appeal.
+According to the special rule recognised by the House of Lords, a person contracting mesothelioma, after being exposed to significant quantities of asbestos dust originating from different sources over the same or different periods, can sue any person who was (negligently or in breach of duty) responsible for any such source of exposure, although unable to show which exposure in probability actually led or contributed to the disease: Fairchild and Barker.
+This rule applies even if the only potential sources consist in the ambient environmental exposure which the population generally experiences and some other negligently created source which only increases this ambient exposure by a small percentage 18% in the case so holding: Sienkiewicz.
+The special rule confers a right of suit on victims of mesothelioma by reference to each significant exposure, rather than any probability that the particular exposure relied upon led or contributed to the disease.
+As formulated in Fairchild, it left open the damages recoverable from a person responsible for an exposure.
+In Barker the House of Lords held that a person responsible was liable not for the whole damages attributable to the mesothelioma, but only in proportion to his own contribution to the overall exposure, probably measured by the duration and intensity of the particular exposure for which he was responsible.
+This proportionate recovery applied whether the other sources were tortious, non tortious, by natural causes or by the victim him or herself.
+The United Kingdom Parliament reacted immediately, reversing the Houses ruling that recovery should be proportionate by the Compensation Act 2006.
+This Act preserves all other aspects of the special rule, as is apparent from section 3(1) and (2): Mesothelioma: damages (1) This section applies where (a) a person (the responsible person) has negligently or in breach of statutory duty caused or permitted another person (the victim) to be exposed to asbestos, (b) the victim has contracted mesothelioma as a result of exposure to asbestos, (c) because of the nature of mesothelioma and the state of medical science, it is not possible to determine with certainty whether it was the exposure mentioned in paragraph (a) or another exposure which caused the victim to become ill, and (d) the responsible person is liable in tort, by virtue of the exposure mentioned in paragraph (a), in connection with damage caused to the victim by the disease (whether by reason of having materially increased a risk or for any other reason). (2) The responsible person shall be liable (a) in respect of the whole of the damage caused to the victim by the disease (irrespective of whether the victim was also exposed to asbestos (i) other than by the responsible person, whether or not in circumstances in which another person has liability in tort, or (ii) by the responsible person in circumstances in which he has no liability in tort), and (b) jointly and severally with any other responsible person.
+Industry guidelines for apportioning and handling employers liability mesothelioma claims were developed in October 2003, taking account of the Financial Services Compensation Scheme (FSCS) available under the Policyholders Protection Act 1975 and the Financial Services and Markets Act 2000 in relation to insolvent insurers.
+These guidelines were also reflected in the Industrial Disease Claims Working Party handling guidelines issued in 2006, which were themselves revised in 2008 following the expansion of the FSCS by the Compensation Act 2006 (Contribution for Mesothelioma Claims) Regulations 2006 (SI 2006/3259).
+Lord Sumption has described some of the features of the guidelines, which, it appears, achieved general acceptance in the industry, by the FSCS and by reinsurers, before the decision of the Court of Appeal in the present case on 6 February 2013 appeared to undermine their application.
+Most recently, after consultations going back to 2010 and to meet the possibility that a mesothelioma victim might be unable to identify any solvent employer with an identifiable insurer, the Mesothelioma Act 2014 has established an insurance industry fund to pay out in such a case a sum fixed by schedule initially at about 80% but since a Ministerial announcement on 10 February 2015 at 100% of the average damages recovery which a victim of the particular victims age would be expected to recover in a civil claim.
+In Durham v BAI (Run Off) Ltd [2012] UKSC 14, [2012] 1 WLR 867 (the Trigger litigation), the Supreme Court held that, where an employer is insured against liability for a disease suffered by an employee which has been caused during the insurance period, the necessary causal requirement or link is satisfied in the case of mesothelioma by the employers negligent exposure of the victim during such period to asbestos (and so to the risk of suffering mesothelioma), with the result that the insurer must indemnify the employer against the liability so incurred.
+Guernsey has not passed any equivalent of the United Kingdoms Compensation Act 2006.
+The first main question on this appeal is whether, apart from that Act, the proportionate recovery rule in Barker still exists at common law.
+Guernsey common law is, as stated, to be taken to be the same as English common law.
+IEGs case is that Barker has become past history after the 2006 Act and in the light of the Supreme Courts decision in the Trigger litigation.
+The second main question concerns the position where the person responsible for exposing a mesothelioma victim has the benefit of liability insurance covering only part of the period for which he exposed the victim.
+If in such a case the person responsible incurs an expense or liability which is not proportionate, must an insurer who has covered only part of the whole exposure period bear the whole expense or liability? Before the Supreme Court, the parties and interveners accepted that such an insurer must, at least in the first instance, answer for the whole expense or liability, but Lord Sumptions judgment on this appeal raises for consideration whether they were correct to do so.
+Assuming they were, the further question arises whether such an insurer is in any way entitled to recoup himself proportionately, and if so from whom, when during the remaining period of exposure the employer chose either to insure with other insurers or not to insure at all or no identifiable insurer can now be shown to have covered the employer.
+If Barker no longer represents the common law, this question arises directly on this appeal.
+Zurich submits that it anyway also arises in respect of defence costs incurred by or on behalf of a person responsible for a particular exposure, where the overall exposure is greater.
+Most obviously, it is a question of general importance in the United Kingdom in relation to claims under the 2006 Act, though the present appeal concerns no such claim.
+The facts
+The facts can be shortly stated.
+IEG is a solvent Guernsey company, a supplier of gas to the Channel Islands and a subsidiary of a global utilities, transport, energy and timber company quoted on the New York Stock Exchange.
+IEG is the successor in title of Guernsey Gas Light Co Ltd (GGLCL), which for a period of over 27 years from 13 November 1961 to 31 December 1988 employed Mr Carr and during such employment exposed him to asbestos dust.
+Mr Carr subsequently contracted and died of mesothelioma.
+It is common ground for present purposes that Mr Carr was exposed with the same degree of frequency and intensity throughout the 27 year period, without adequate protection being provided by GGLCL, under circumstances that materially increased the risk of his contracting mesothelioma and constituted breaches of duty by GGLCL towards him.
+On 22 September 2008 Mr Carr brought proceedings against IEG claiming that he had sustained mesothelioma consequent on his exposure to asbestos dust throughout his 27 year period of employment with GGLCL.
+IEG settled his claim on 19 December 2008 by a compensation payment consisting of 250,000 in damages and interest plus 15,300 towards Mr Carrs costs.
+IEG also incurred defence costs of 13,151.60.
+Thereafter IEG looked to GGLCLs liability insurers under policies in force during the period of exposure.
+Two have been identified, first the Excess Insurance Co Ltd, which provided employers liability insurance for two years from 31 December 1978 to 30 December 1980, and, second the Midland Assurance Ltd, to whose insurance liabilities Zurich has succeeded, which provided such insurance for six years from 31 December 1982 to 31 December 1988.
+The present appeal thus proceeds on the basis that GGLCL had insurance for eight of the 27 years throughout which it exposed Mr Carr to asbestos dust.
+Guernsey did not have legislation making employers liability insurance compulsory until 1993, when the Employers Liability (Compulsory Insurance) (Guernsey) Law 1993 came into effect.
+Each of the Midland policies issued during the six years when it was on risk provided that: Whereas the Insured carrying on the business described in the Schedule and no other for the purposes of this insurance has applied to Midland Assurance Limited (hereinafter called the Company) for the insurance hereinafter contained and has paid or agreed to pay the premium as consideration for such insurance during the period stated in the Schedule or for any subsequent period for which the Company shall have accepted the premium required for renewal of this policy.
+If any person under a contract of service or apprenticeship with the Insured shall sustain any bodily injury or disease caused during any period of insurance and arising out of and in the course of his employment by the Insured in the business above mentioned, the Company will indemnify the Insured against all sums for which the Insured shall be liable in respect of any claim for damages for such injury or disease settled or defended with the consent of the Company.
+The Company will in addition pay claimants costs and expenses and be responsible for all costs and expenses incurred with the consent of the Company in defending any such claim for damages.
+IEG notified a claim for its total loss to Zurich, which offered to meet 72/326ths of the damages and interest paid to Mr Carr and of the defence costs incurred.
+The proportion reflected the relationship between the six years of the Midland insurance and the 27 year period of Mr Carrs exposure by GGLCL.
+It was arrived at on the basis that IEGs liability to Mr Carr was incurred and increased from day to day throughout the 27 years, while only six years of such liability fell within the period of the Midland insurance. (Any slight inaccuracy in equating a period of 27 years one month 17 days with 326 months can be ignored.
+Cooke J at trial converted 72/326ths into a percentage of 22.08%, which has not been challenged.)
+A trial was ordered on the basis of a statement of facts and issues recording the common ground between the parties, and on 24 January 2012 (two months before this court handed down judgment in the Trigger litigation) Cooke J accepted Zurichs case regarding the compensation, but not the defence costs, paid in respect of Mr Carr.
+He held it liable to pay 71,729.84 in full discharge of its policy liabilities, being its relevant proportion of such compensation plus 100% of the defence costs: [2012] EWHC 69 (Comm).
+On 6 February 2013 the Court of Appeal allowed IEGs appeal, rejected Zurichs cross appeal relating to defence costs, and ordered Zurich to pay 278,451.60, representing 100% of both the compensation paid and defence costs incurred by IEG: [2013] EWCA Civ 39.
+The Trigger litigation
+The issue in the Trigger litigation was whether and how various differently worded employers liability insurance policies should respond to mesothelioma claims.
+Typical wordings in use at various relevant dates were set out in annex A to and summarised in paras 7 to 9 of my judgment in that case.
+Under some of the policy wordings there considered (including some early Excess policies in different form to the present), the insurer promised to indemnify the insured employer against liability if at any time during the period of insurance (or of any renewal) any employee should sustain personal injury by accident or disease or [any] bodily injury or disease, while engaged in the service of the employer or in other cases arising out of and in the course of [his] employment by the insured employer.
+Other policy wordings were in more developed form, promising for example indemnity in respect of legal liability for sums payable as compensation for bodily injury or disease suffered by any employee when such injury or disease arises out of and in the course of employment by the Insured and is sustained or contracted during the currency of this Policy.
+The issue in the Trigger litigation was whether these wordings responded by reference to the date of exposure to asbestos dust or to the date when the onset of mesothelioma or any other long term disease developed or manifested itself.
+In determining this issue, this court found assistance as to the scope, purpose and proper interpretation of each of the insurances in a study of its language, read in its entirety (paras 19 and 41).
+It relied on the wordings assumption that the course of employment and the sustaining of injury would be contemporaneous (para 20) and that there would be a close link between the risks attaching to the employment or work undertaken in the insurance period and the risks which the insurers, for a premium calculated by reference to the nature of such employment during such period, agreed to insure (paras 21 23).
+It also relied on the improbability that insurers would offer or sell cover in respect of risks attaching to ancient, as opposed to current, employment or activities (para 24) or on a basis that would leave it open to insurers to refuse further cover once it became apparent that such employment or activities were likely to produce claims (paras 24 25).
+In the upshot, all the insurance wordings considered in the Trigger litigation were held to operate on a similar basis.
+Whether the wording referred to a disease contracted or an injury or disease sustained, the reference was to be taken as being to the date when mesothelioma was caused or initiated by exposure, even though it only developed or manifested itself long afterwards (paras 49 51).
+In respect of the limited number of the insurances with which the court was concerned which post dated the Employers Liability (Compulsory Insurance) Act 1969, the court also regarded its conclusions on interpretation as the only conclusions consistent with the employers duty to carry insurance under that Act.
+The Midland policy wording in issue on this appeal is expressly on a causation basis, and the risks undertaken are closely tied to the period of insurance.
+A second, yet more fundamental, point arose during the course of the appeal in Trigger.
+If causation grounded liability under the insurance wordings, could causation be shown to exist, bearing in mind that the special rule established by Fairchild, Barker and Sienkiewicz derives from the impossibility of proving as a matter of probability that any particular exposure has led or contributed to the occurrence of mesothelioma in any particular case? The rival possibilities examined in Trigger were that (a) the special rule involves a legal inference or fiction that, despite the evidential impossibility, the particular exposure has as a matter of probability caused or contributed to the occurrence of the mesothelioma or (b) the special rule involves a weak or broad view of the causal requirements or link satisfied in the case of mesothelioma by proof of exposure to asbestos dust or, both these possibilities failing, (c) the employers liability under the special rule arises not for, or because he has in any sense caused, the mesothelioma, but on the contrary for, and because of, his creation of the risk of causing the disease.
+On this last basis no relevant causation would have existed sufficient to trigger the insurance wordings in Trigger, since they required causation of a disease, not causation of a risk.
+In Trigger, none of the members of the court accepted possibility (a): see eg paras 59 and 71 74 in my judgment and para 131 per Lord Phillips.
+But Lord Phillips went on, after analysing Barker, to accept possibility (c).
+Dissenting, he held that employers could not pass on to their insurers the liability which they had incurred under the special rule, and he refused to engage in any redefinition of that special rule to render insurers liable: paras 133 134.
+The majority on the other hand accepted the employers case that insurances underwritten on a causation basis must respond in circumstances where employers incur liability for mesothelioma under the special rule because they have exposed the victim to asbestos dust during the relevant insurance period.
+In my judgment, with which Lord Kerr, Lord Clarke and Lord Dyson agreed, this was explained by reference to possibility (b): the ordinary requirements of causation (proof on a balance of probability) were modified as between the victim and person responsible, so as to make the latter liable for the mesothelioma because of the risk of sustaining mesothelioma to which the victim had been exposed during the relevant period: see paras 66 and 73.
+Further, and importantly, the majority also held that a liability insurer covering the person responsible on a causation basis must accept the development of, and the increase of employers liability resulting from, the special rule within the limits of the relevant insurance and insurance period: see paras 66 (end), 69 70 and 73 74.
+If causation is given a weak or broad meaning as against the person tortiously responsible, the same weak or broad meaning should be treated as carrying through into a liability insurance covering an insured on a causation basis.
+However, Trigger was not directly concerned with, and did not examine, the situation or the consequences where a person responsible for exposing a mesothelioma victim to asbestos dust has an insurance covering only part of the period of that exposure.
+That is the situation which gives rise to the present appeal.
+If one puts on one side the fact that exposure continued for a further 21 years, Trigger is direct authority that the Midland policy must respond to liability for mesothelioma incurred by IEG under the special rule as a result of GGLCLs tortious exposure of Mr Carr throughout the six year period of the Midland insurances.
+The policy period is fundamental under any liability policy, as the reasoning in Trigger summarised in para 18 above itself indicates.
+But, under Trigger, the sufficient weak or broad cause which grounds liability for any subsequently incurred mesothelioma occurs within the policy period, and that is sufficient.
+Zurich has at all times accepted that, if Mr Carr was, as a result of being exposed to asbestos dust during the six years for which Midland insured GGLCL, entitled to the full compensation payment of 250,000 plus costs which he received from IEG, then the policy wording on its face requires Zurich to answer in full notwithstanding that he was also exposed to asbestos dust during a further 21 years: see its written case before this court on the present appeal, para 4.4.
+However, the policy and its wording only govern the parties relationship in and with respect to the policy periods and risks arising during such periods.
+The special rule recognised in Fairchild as modified by the 2006 Act has the unique effect of requiring Zurich to respond potentially under its policy wordings to liabilities incurred by GGLCL/IEG which are: (a) attributable to the mere risk that GGLCLs conduct during the Midland insurance period led or contributed to Mr Carr incurring mesothelioma, but also (b) equally easily, or proportionately much more easily, attributable to GGLCLs conduct wholly outside the scope and period of the Midland insurance.
+Zurichs case is that, since GGLCLs conduct within (b) was wholly independent of and outside the scope of the Midland insurance and Midland insurance period, there is no reason why it cannot be recognised as giving rise to obligations as between Zurich and IEG, no inconsistency with the Midland insurance in recognising that such obligations may result from such conduct, and every reason in justice why this should be recognised.
+Barker
+The first main question on this appeal is whether Barker remains good common law, not in the United Kingdom, where it has been superseded by the 2006 Act, but in Guernsey where no such statute exists.
+I do not understand there to be any issue that, if Barker remains good common law, then IEGs liability in respect of the six years of Midland cover was and is for a proportionate part (22.08%) of the full compensation which IEG in fact paid.
+If Mr Carr had only been able to show six years of exposure with GGLCL, but a further 21 years exposure elsewhere, he could not have claimed more than 22.08% of his total loss from IEG.
+Equally IEG cannot now claim from Zurich more than the same proportion (22.08%) of the whole compensation paid which it can properly attribute to the six years of the Midland insurance.
+This is the corollary of the fundamental principle of indemnity, which governs liability insurance.
+This principle was articulated long ago in Godin v London Assurance Co (1758) 1 Burr 489, a case in which the defendant insurers were contending that because there had been double insurance they ought only to have to pay half the loss, although neither insurer had as yet paid any sum.
+Lord Mansfield, in giving the judgment of the court upholding a verdict for the whole loss in these circumstances, observed (p 492): Before the introduction of wagering policies, it was, upon principles of convenience, very wisely established, that a man should not recover more than he had lost.
+Insurance was considered as an indemnity only, in case of a loss: and therefore the satisfaction ought not to exceed the loss.
+If the insured is to receive but one satisfaction, natural justice says that the several insurers shall all of them contribute pro rata, to satisfy that loss against which they have all insured.
+Where a man makes a double insurance of the same thing, in such a manner that he can clearly recover, against several insurers in distinct policies, a double satisfaction, the law certainly says that he ought not to recover doubly for the same loss, but be content with one single satisfaction for it.
+And if the whole should be recovered from one, he ought to stand in the place of the insured, to receive contribution from the other, who was equally liable to pay the whole.
+In IEGs submission, Barker is fatally undermined by the Compensation Act 2006 and/or the decision in Trigger.
+IEG points out that section 16(3) of the 2006 Act provides that Section 3 shall be treated as having always had effect, and suggests that the Act was in section 3 declaring what the common law has always been.
+I do not accept that.
+Section 16 is a section dealing with Commencement, and the 2006 Act was clearly passed to change a common law rule expounded in Barker.
+It is true that the 2006 Act leads to a result which the common law might itself have accepted as appropriate: Trigger, para 70.
+But the common law did not do so, and the reasons why it did not are in my view both coherent and understandable.
+They are set out extensively in Barker, and I need not repeat them here.
+What the House did in Barker was to treat proportionality as a concomitant of the exceptional liability which derives from the special rule in Fairchild and which the House was, on that basis, prepared in Barker to extend to situations beyond those which Fairchild had held covered by it.
+The United Kingdom Parliaments reaction was its right, but does not alter the common law position apart from statute, or have any necessary effect in jurisdictions where the common law position has not been statutorily modified.
+In Trigger the court looked closely at Barker, and saw itself as applying what Barker established: see paras 63 66 and 72 of my judgment.
+At para 66 I noted that the speeches of Lord Hoffmann, Baroness Hale and (possibly) Lord Walker in Barker all viewed an employers legal responsibility as based on a weak or broad view of the causal requirements or causal link appropriate in the particular context to ground liability for the mesothelioma.
+To those references can be added that Lord Scott at para 50 and Lord Walker at para 103 in Barker both expressly agreed with Lord Hoffmanns reasons for allowing the appeals on the issue of apportionment.
+Further, there was in Trigger no issue about or challenge to the correctness of Barker.
+In these circumstances, it would on the face of it be surprising to find that Trigger had consigned that decision to history.
+IEG submits that, under Trigger, an employer shown to have significantly exposed a mesothelioma victim to asbestos dust is liable for having caused (in a weak or broad sense) the mesothelioma, and that anyone who is liable for causing a disease must answer for the whole loss resulting from that disease.
+In the Court of Appeal, [2013] EWCA Civ 39, that submission was accepted by Toulson LJ at paras 30 31 and Aikens LJ at paras 53 55.
+No doubt the submission is (subject to conventional limitations like remoteness and mitigation) generally correct in a conventional case where causation must exist in its ordinary sense of conduct which on a balance of probability brought about or contributed to the disease.
+But causation in a weak or broad sense is unconventional.
+Barker, as analysed in Trigger, accepted causation in this weak or broad sense and nonetheless held an employers responsibility to be proportionate to that part for which that employer was responsible of the victims total exposure to asbestos dust.
+Trigger cannot therefore be said to affect or undermine the reasoning or decision in Barker.
+The argument that insists that a conventional approach to the measure of damages must apply in a context where liability is imposed on an unconventional basis was rejected by Baroness Hale in her judgment in Barker.
+The relevant passages are worth quoting at length: 121. mesothelioma is an indivisible injury.
+What makes it an indivisible injury, and thus different from asbestosis or industrial deafness or any of the other dose related cumulative diseases, is that it may be caused by a single fibre.
+This much, as I understand it, is known, although the mechanism whereby that fibre causes the transformation of a normal into a malignant cell is not known. 122.
+But it does not necessarily follow from the fact that the damage is a single indivisible injury that each of the persons who may have caused that injury should be liable to pay for all of its consequences.
+The common law rules that lead to liability in solidum for the whole damage have always been closely linked to the common law's approach to causation.
+There is no reason in principle why the former rules should not be modified as the latter approach is courageously developed to meet new situations.
+Where joint tortfeasors act in concert, each is liable for the whole because each has caused the whole.
+The owner of one of the two dogs which had worried the sheep was liable for the whole damage because each of the dogs did in law occasion the whole of the damage which was suffered by the sheep as a result of the action of the two dogs acting together: Arneil v Paterson [1931] AC 560, 563, per Viscount Hailsham.
+Where two people, acting independently, shoot simultaneously and kill another, each is still liable for the whole.
+This is because, according to Prosser & Keeton on Torts, 5th ed, p 345, there is no sensible basis for dividing up the single damage which they have combined to cause for death cannot be divided or apportioned except by an arbitrary rule. 123.
+But as our perceptions of causation have expanded, so too has our conception of whether there may exist a sensible basis for apportionment.
+In Bonnington Castings Ltd v Wardlaw [1956] AC 613, the issue was whether the employer was liable at all, given that some of the exposure to dust was in breach of duty and some was not; but it could be shown that the tortious exposure had materially contributed to the harm, even if it was not the only cause.
+In McGhee v National Coal Board [1973] 1 WLR 1, where again some of the exposure was in breach of duty and some was not, but this time it could not be shown that the tortious exposure had even materially contributed to the harm, the issue again was whether the employer was liable at all; it was held that a material increase to the risk of harm was the equivalent of a material contribution to causing the harm.
+In neither case was it argued that the employer should only be liable to the extent that his behaviour had been in breach of duty.
+Yet in the case of diseases which progress over time, such exercises have now become commonplace, following the decision of Mustill J in Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405, whether as between successive employers or as between tortious and non tortious exposure by the same employer. 124.
+There is, therefore, a logical connection between the law's approach to causation and the law's approach to the extent of liability.
+At each point along the road in developing the concept of causation, there is a choice to be made as to whether a single tortfeasor or a joint or concurrent tortfeasor should be liable for the whole or only for part of the damage.
+This is a policy question.
+One element in making that choice is whether there exists a sensible basis for apportioning liability.
+Another element is whether this would strike the right balance of fairness between claimant and defendant. 125.
+In one sense, there always exists a sensible basis for apportioning liability where more than one person is involved.
+Liability could be divided equally between them.
+But that would be arbitrary unless each was equally responsible.
+Even if liability were equally divided, this could be unfair to the claimant if, as in the dog worrying and shooting examples, each defendant has in fact caused the whole of his damage.
+In the Bonnington Castings and McGhee situations, where one employer is responsible for all the potentially harmful exposure, there may exist a sensible basis for apportioning liability, but it may still be unfair to the claimant to do this, if the one employer has undoubtedly caused all his harm. 126.
+But in the Fairchild situation we have yet another development.
+For the first time in our legal history, persons are made liable for damage even though they may not have caused it at all, simply because they have materially contributed to the risk of causing that damage.
+Mr Stuart Smith does not quarrel with the principle in Fairchild.
+He simply argues that it does not follow from the imposition of liability in such a case that each should be liable for the whole.
+I agree with the majority of your Lordships that indeed it does not follow.
+There is in this situation no magic in the indivisibility of the harm.
+It is not being said that each has caused or materially contributed to the harm.
+It can only be said that each has materially contributed to the risk of harm.
+The harm may be indivisible but the material contribution to the risk can be divided.
+There exists a sensible basis for doing so.
+Is it fair to do so? 127.
+In common with the majority of your Lordships, I think that it is fair to do so.
+On the one hand, the defendants are, by definition, in breach of their duties towards the claimants or the deceased.
+But then so are many employers, occupiers or other defendants who nevertheless escape liability altogether because it cannot be shown that their breach of duty caused the harm suffered by the claimant.
+For as long as we have rules of causation, some negligent (or otherwise duty breaking) defendants will escape liability.
+The law of tort is not (generally) there to punish people for their behaviour.
+It is there to make them pay for the damage they have done.
+These Fairchild defendants may not have caused any harm at all.
+They are being made liable because it is thought fair that they should make at least some contribution to redressing the harm that may have flowed from their wrongdoing.
+It seems to me most fair that the contribution they should make is in proportion to the contribution they have made to the risk of that harm occurring. 128.
+This solution is all the more attractive as it also provides the solution to the problem posed by the Barker appeal.
+If the damage could have been suffered during a period of non tortious exposure, it is suggested that the tortious exposers should escape liability altogether.
+There is considerable logic in this.
+One way of explaining Fairchild is that all were in breach of duty and one of them must be guilty, so that it made sense that all should be liable.
+That rationale does not apply, or certainly not with the same force, if there are other, non tortious causers in the frame.
+But if the tortious exposers are only liable in proportion to their own contribution to the claimants overall exposure to the risk of harm, then the problem does not arise.
+The victim's own behaviour is only relevant if he fails to take reasonable care for his own safety during a period of tortious exposure by a defendant.
+This reasoning remains in my view convincing at common law.
+In the United Kingdom, Parliament has, as is its right, taken a different view of the equities as between a person responsible and a victim of mesothelioma.
+That in turn gives rise to further problems of equity in relation to other, indirectly affected persons under the second main question on this appeal.
+But for the reasons I have given, neither the 2006 Act nor Trigger is inconsistent with or undermines the decision in Barker.
+For completeness, I record that Mr Antonio Bueno QC representing IEG expressly disclaimed any intention to invite the court to overrule Barker on this appeal.
+That, he frankly said, would bring in other considerations, and he said that IEGs case was that it has already become history as a result of Trigger.
+However, Mr Patrick Limb QC, also representing IEG, did at times appear to be inviting the court to address and overrule Barker head on.
+In my view, that latter invitation is not open to IEG, and further Barker has not been overruled by Trigger, and remains as part of the common law of England, which we are to take to be the same as the common law of Guernsey.
+The all sums policy construction issue
+The written cases identify under this head a secondary issue, concerning the extent of Zurichs liability to indemnify IEG.
+It arises from observations made by Aikens LJ, with whose judgment Kay LJ agreed.
+After concluding in para 53 that the majority in Trigger had grounded liability on a weak or broad causal link within the policy period, he went on in para 54 to say: Once that causal requirement is fulfilled, then the employer will have proved that the mesothelioma (the disease) was caused during any period of insurance.
+It follows from the policy wording that the insurer is then liable to indemnify IEG for all sums for which the Insured shall be liable in respect of any claim for damages for such disease (my emphasis).
+In other words, Zurich will be liable to indemnify IEG for the whole of the damages paid out by IEG in respect of Mr Carrs claim for damages for contracting mesothelioma, not just a proportion worked out by reference to the period during which IEG was covered by policies for which Zurich is responsible.
+The reference to all sums comes from the primary insuring clause set out in para 13 above.
+As I understand Zurichs written case, raising the secondary issue on the basis of this paragraph, Zurich was concerned that Aikens LJ was or might be suggesting that, even if Barker stood and applied (so that IEGs liability towards Mr Carr would have been limited to a proportion of his total loss, had IEG only exposed him for six out of the total of 27 years), IEG, having actually exposed him for the total 27 years though only insured with Midland for six of such years, might under the all sums provision in the insurance be entitled to recover from Zurich in respect of Mr Carrs total loss attributable to the 27 years.
+Any such argument would be clearly contrary to the fundamental principle of indemnity mentioned in para 26 above.
+Further, as I understand it, no such argument is in fact advanced by IEG.
+On the other hand, IEG appears to have understood Zurich to contend that, even if Barker had become past history (so that IEG was liable in full to Mr Carr for the whole of his loss resulting from mesothelioma, whatever the period for which it had exposed him compared with other periods of exposure), Zurich should under the Midland policies only answer for a rateable proportion of such total loss, viz 22.08%.
+For reasons indicated in para 23 above, I do not understand Zurich to make any such case.
+Zurich accepts that, if Barker no longer represents the common law, and IEG became liable for Mr Carrs full loss simply because he was exposed to asbestos dust during the six year Midland insurance period, then Zurich must on the face of the Midland policy wordings answer under the insurance, even though he was also exposed during 21 other years.
+In these circumstances, I need say no more on the secondary issue.
+It follows that the appeal must succeed as regards the compensation and interest paid by IEG to Mr Carr, because Barker continues to represent the common law position which applies in Guernsey.
+The Court of Appeal was wrong to set aside Cooke Js judgment, which should be restored, on this aspect.
+Defence costs
+That leaves the defence costs totalling 13,151.60 which IEG incurred in defending Mr Carrs claim based on exposure to asbestos dust over the full 27 years of his employment with GGLCL.
+Zurich submits that these costs should be pro rated on the same 22.08% basis.
+An important parallel, though not in my view identical, issue would arise in any case where the Compensation Act 2006 applies, making a responsible person liable for the whole damage suffered by a mesothelioma victim, regardless of the length and volume of his other exposures to asbestos dust.
+As regards defence costs, IEG relies upon reasoning adopted by the Privy Council in New Zealand Forest Products Ltd v New Zealand Insurance Co Ltd [1997] 1 WLR 1237.
+There proceedings were instituted on the basis of five causes of action against a company and its director, whose costs were both covered by an insurance policy, and in the case of one of the causes of action against a third person not so covered.
+All the defendants were represented by the same lawyers.
+It was common ground that costs not relating in any way to the insured directors defence would not be covered, while costs exclusively related to the insured directors defence would be covered.
+The issue which arose was as to defence costs which related at one and the same time to the defence both of the claim against the insured director and of the claim against the uninsured third person.
+The courts below took the view that there should be an apportionment.
+The Privy Council reached a different view, as a matter, it said, of construction of the relevant insurance.
+This covered all loss which such officer has become legally obligated to pay on account of any claim made against him for a wrongful act.
+As this wording would cover the whole costs incurred in the defence where the insured officer was the sole defendant, the Board saw no reason why it should not cover them all, where some of them related also to the defence of an uninsured co defendant.
+There was no question of the costs relating to any period other than that insured, and, importantly, they arose on a conventional causative basis because of a claim against the director for a wrongful act.
+Two points are notable in relation to the defence costs which IEG seeks to recover from Zurich.
+First, there is nothing to suggest that these would have been any less had the claim against IEG been confined to the six year period covered by the Midland policies.
+Second, and more significantly, the defence costs which IEG incurred were incurred with the consent of the Company in defending any such claim for damages within the meaning of the second sentence of the main insuring clause set out in para 13 above.
+That is, they were incurred by IEG in defending a claim by a former employee for damages for injury or disease which he was caused to sustain while employed during the periods of insurance provided by Midland.
+The claim against IEG could, under the special rule in Fairchild, be pursued on the basis that GGLCL had done no more than expose Mr Carr to a risk of suffering mesothelioma.
+In the light of Trigger the first sentence of the main insuring clause set out in para 13 above covers liability arising on this basis.
+But IEGs liability for and right to recover defence costs does not arise under the special rule, or on the basis that Mr Carr was exposed to any risk.
+It is not recoverable under the first, but under the second sentence of the main insuring clause.
+Under the second sentence, it is recoverable on the conventional basis that IEG can prove that it incurred (as a matter of fact or probability) actual financial loss in the circumstances covered by that sentence.
+This distinction is important.
+Once it is shown that an insured has on a conventional basis incurred defence costs which are covered on the face of the policy wording, there is, as the New Zealand Forest case shows, no reason to construe the wording as requiring some diminution in the insureds recovery, merely because the defence costs so incurred also benefitted some other uninsured defendant.
+The special rule analysis
+However, liability arising under the special rule in Fairchild on the exceptional basis of a weak or broad causal link consisting of exposure to a risk is different.
+As the volume of case law indicates and not surprisingly, it has proved difficult to work through the implications of the special rule in Fairchild.
+But, having, for wholly understandable reasons, gone down the Fairchild route, the common law must, in my view, face up to the consequences, if necessary by further innovation.
+That is so, even if some of the problems arise from Parliaments intervention by the 2006 Act.
+As already observed, the common law might itself have taken the same approach as that Act, though it did not in fact do so.
+Had it done, it would certainly have had to work out the common law implications.
+Parliaments intervention does not release the courts from their role of working out the common law implications of a special rule which remains essentially common law based, although subject to the modification introduced by the 2006 Act.
+Trigger may be regarded as an instance of performance of this role.
+It is worth emphasising how novel the situation created by Fairchild and Trigger is in an insurance context.
+When the present liability insurances were placed, what Hobhouse LJ said about the fundamental nature of the insurance period in the context of a property reinsurance in Municipal Mutual Insurance Ltd v Sea Insurance Co Ltd [1998] Lloyd's Rep IR 421, 435 436 would have been just as true of them: The judge came to the surprising conclusion that each reinsurance contract covered liability in respect of physical loss or damage whether or not it occurred during the period covered by the reinsurance contract and he went on expressly to contemplate that the same liability for the same physical loss or damage might be covered under a number of separate contracts of reinsurance covering different periods.
+This is a startling result and I am aware of no justification for it.
+When the relevant cover is placed on a time basis, the stated period of time is fundamental and must be given effect to.
+It is for that period of risk that the premium payable is assessed.
+This is so whether the cover is defined as in the present case by reference to when the physical loss or damage occurred, or by reference to when a liability was incurred or a claim made.
+Contracts of insurance (including reinsurance) are or can be sophisticated instruments containing a wide variety of provisions, but the definition of the period of cover is basic and clear.
+In short, insurance would have been and was placed on the basis that a particular liability or loss would fall into one, not a series of separate periods.
+If an insured wanted complete cover, it would have to maintain it for all such periods.
+The relevant period would also be ascertained by objective criteria, which meant that insureds could not select it at will or to obtain the advantage of the cover most favourable from their viewpoint.
+Thus: (i) Under a liability insurance where the trigger is causation in its traditional sense based on probability, no problem exists about allocating tortious liability to one and only one policy period. (ii) Under a claims made policy, claims must be notified and will attach at latest when they arise, while specific clauses dealing with the notification of circumstances likely to give rise to a claim may attach a claim to an earlier policy than that during which it actually arises. (iii) An insured may, for one reason or another, have double insurance.
+In that context, it may elect which to invoke, but well established principles exist for the two insurers to share liability equally up to the common limit. (iv) An insured may also agree to carry an excess or franchise, in which case it will have to bear that amount before looking to its insurer, and will as a self insurer rank last in any recoveries made by way of subrogation from any third party: Lord Napier and Ettrick v Hunter [1993] AC 713.
+Against this background, the present appeal illustrates some of the problems, arising from the special principles recognised and applied in Fairchild and Trigger, at the level of relationships between persons responsible and their insurers: (a) An employer, manufacturer or other person may well have been responsible for exposing employees and others to asbestos dust over many years. (b) For many years, he may have decided not to insure, or been unable to obtain cover which he regarded as acceptable. (c) During some years or as from some date, he may have decided to take out insurance.
+Employers should have done so, once employers liability insurance became compulsory, that is in and after 1972 in England, Wales and Scotland, 1975 in Northern Ireland and 1993 in Guernsey. (d) Even when insurance was taken out, it may have been taken out on a claims made, rather than causation, basis; even after employers liability insurance was compulsorily required, it may have been taken out on this basis under what Trigger indicates to have been the misapprehension that this form of insurance would satisfy that requirement. (e) Where insurance was taken out: (i) the employer, manufacturer or other person may not have fully appreciated the long term nature of the risks covered and may have failed to keep records from which the insurance can now be traced; or (ii) the insurer may have become insolvent.
+Where a person responsible for exposing a victim of mesothelioma to asbestos dust over a period of years has had liability insurance with the same insurer over the whole period, no problem arises.
+But frequently this will not have been, or cannot be shown to have been, the case, and the potential anomalies then arise.
+On IEGs case, the special rule, as modified by the 2006 Act and explained in Trigger, allows a person responsible for exposure to select any year during which he can show that he carried liability insurance and to pass the whole of any liability for such exposure to the liability insurer on risk in that year, without regard to other periods of exposure.
+anomalies are self evident: If matters stop there, and the insurer ends up carrying the whole liability, the (a) It is contrary to principle for insurance to operate on a basis which allows an insured to select the period and policy to which a loss attaches.
+This is elementary.
+If insureds could select against insurers in this way, the risks undertaken by insurers would be entirely unpredictable. (b) It is anomalous for a liability insurance underwritten for a premium covering losses arising from risks created during its particular period to cover losses about which all that can be said is that they arise from risks extending over a much longer period, in respect of which no premium has, or could have, been assessed or received by the insurer. (c) An insured is able to ignore long periods in respect of which he himself has chosen not to insure, or has not kept any record of any insurance which he may have taken out, or has chosen to entrust his insurance to an insurer who has become insolvent. (d) An insured has no incentive to take out or maintain continuous insurance cover.
+On the contrary, it is sufficient to take out one years cover, or even to arrange to be held covered for only one day, during whatever happens subsequently to prove to have been the overall exposure period whether this is done at the very start of the overall exposure period, or later after many decades of exposure, perhaps due to a sudden appreciation of the virtues of insurance under the special rule.
+In each case the anomaly arises because, without more, the analysis identified in the last sentence of para 42 above fails to adjust to the unique situation which arises from the principles recognised in Fairchild and Trigger.
+There are various responses that the law might have taken to such anomalies.
+One is that which Lord Phillips took in Trigger, viz that the insurance only answered for liability proved as a matter of probability to have resulted from asbestos exposure in the insurance period.
+Lord Phillips approach can be viewed as entirely conventional, in the sense that it reflected the traditional view that, under a liability policy like the Midlands, the concept of causation looked to the proximate or effective cause, to be proved as a matter of probability.
+But it would have meant that no liability insurance cover existed in respect of mesothelioma.
+In the light of this drastic consequence, the majority of the court in Trigger preferred a second response.
+It equated the concept of causation in an insurance context with the weaker or broader meaning which the courts have, to the benefit of victims, given it in tort.
+This was a choice rationalised in terms of the principle that a facultative liability insurance normally responds to whatever may prove to be the liability incurred by the insured.
+In Trigger there was no consideration of a situation in which a relevant insurance covered only part of an overall period during which the insured employer had exposed the victim to asbestos dust.
+But in my view the reasoning in Trigger binds this court to hold that the mesothelioma is caused in the sense that it results from exposure which existed in each and every period of any overall period of exposure.
+The fact that a victim or an insured only relies on one period of exposure does not alter the legal position, that it can equally be said to have been caused in every other period of exposure.
+This is because, as a matter of law, exposure connotes causation, in both tort and tort liability insurance law.
+It is the anomalies resulting from that conclusion which the court must now resolve, accepting but building on its own prior jurisprudence.
+Lord Sumptions judgment argues for a third response.
+He agrees that the respondents case involves all the anomalies already identified.
+But he considers that they can and can only be met by interpreting the insurance policy wording in a way which none of the parties or interveners before the court has suggested.
+He regards it as consistent with the decision in Trigger to say that an insurer, who only covers part of the total period for which the insured exposed the victim, is only liable for a corresponding part of the insureds liability to the victim.
+In my view, this is inconsistent with Trigger.
+Once one accepts that causation equates with exposure, in tort and tort liability insurance law, there is no going back on this conclusion simply because there was exposure by the insured of the victim both within and outside the relevant insurance period.
+More specifically, Lord Sumption suggests that the insurer must still show that the occurrence fell within the chronological limits of the policy (para 156).
+But that raises the question: what is here meant by the occurrence for which the employer is liable? It cannot be the disease itself, which can and does occur decades later.
+If it is the incident which causes the disease, then, as Lord Sumption himself recognises (para 157), it is each and every, or any, negligent exposure to asbestos involving a contribution by the employer to the risk of the victim sustaining mesothelioma that constitutes causation for the purposes of a liability insurance like the present.
+Any such exposure can be relied on as causing the mesothelioma and making the employer fully liable for the victims loss, and any such exposure occurring during any policy period will on a like basis mean that the insurer incurs full liability.
+Lord Sumption seeks to avoid this conclusion, acknowledging that it makes some sense as between successive employers who are guilty of a continuous tort, but saying that the same logic cannot be applied as between successive insurers (para 157).
+But the primary question is not as between two insurers, it is as between the employer and any insurer against which he claims; and there is also nothing illogical about a conclusion that each of successive insurers is potentially liable in full, with rights of contribution inter se.
+Lord Sumption also advances a broader argument, that it is conceptually impossible for mesothelioma to be successively caused in every period of exposure, because Mesothelioma is caused only once, or, as he later puts it, that it is not conceptually possible for an insurer to be liable on the footing that the disease was actually caused in every year (para 158).
+But this moves the terminological goalposts, by reverting to traditional notions of causation those applicable outside the Fairchild enclave, where proof on the balance of probabilities is traditionally required.
+Within that enclave, the House accepted in Fairchild that it was necessary to adopt a weak notion of causation, in order to protect victims, and in Trigger the Supreme Court held that this weak notion of causation carries through into an insurance context.
+On this basis, loss is caused for the purposes of tort and liability insurance contracts like the present in any and every period when the victim was exposed to asbestos and so to the risk of mesothelioma.
+Lord Sumptions broader argument is therefore incorrect.
+Moreover, if it had any force, it is not obvious why it would not apply equally to tort and so preclude one negligent employer from seeking contribution from another yet that is expressly provided for by the 2006 Act.
+Lord Sumption states further that Trigger cannot be applied without modification when the question is how much of the loss is attributable to particular years, and continues by saying the the rational response of the law is to prorate the whole loss between every policy year during which the insured employer exposed the victim to asbestos (para 160).
+Lord Sumption correctly points out that it is only when one aggregates every successive period that the chances add up to 100% (para 158).
+But this means, logically, that, if (as Lord Sumption maintains) any insurance can only answer pro rata for exposure or risk occurring during the insurance policy period, the relevant pro rating must be by reference to the total exposure of the victim from all employers and sources.
+The total period of exposure by the particular employer is in this context irrelevant, since the insurance wording says nothing about it and the chances of sustaining mesothelioma do not correspond with it when there are other sources of exposure.
+For all these reasons, I cannot therefore accept Lord Sumptions approach.
+An insurer, whether for the whole or part of the period for which the insured employer has negligently exposed the victim to asbestos, is on the face of it liable for the victims full loss.
+However, I agree that the analysis cannot stop here.
+The court is faced with an unprecedented situation, arising from its own decisions affecting both tort and insurance law.
+A principled solution must be found, even if it involves striking new ground.
+The courts cannot simply step back from an issue which is of their own making, by which I do not mean to suggest that it was in any way wrong for the courts, from Fairchild onwards, to have been solicitous of the needs of both victims and insureds.
+But by introducing into tort and liability insurance law an entirely novel form of causation in Trigger, the courts have made it incumbent on themselves to reach a solution representing a fair balance of the interests of victims, insureds and insurers.
+In my view, the law has existing tools which can be adapted to meet this unique situation.
+The concepts of co insurance and self insurance are both at hand.
+Co insurance is relevant in so far as the insured has other insurance to which it could also have resorted on the basis that it had also exposed the victim during the period of that insurance.
+Self insurance is relevant, because an insured who has not (i) taken out or (ii) kept records of or (iii) been able to recover under such other insurance must be regarded as being its own insurer in respect of the period in question for which it has no cover.
+A sensible overall result is only achieved if an insurer held liable under a policy like the Midland policy is able to have recourse for an appropriate proportion of its liability to any co insurers and to the insured as a self insurer in respect of periods of exposure of the victim by the insured for which the insurer has not covered the insured.
+There are of course difficulties about drawing a direct analogy between the present situation and conventional situations in which the concepts of co insurance and self insurance have previously been deployed.
+But the court would be abrogating its role to achieve a just solution consistently with what any sensible commercial party would have contemplated if it does not adapt and develop conventional principles to meet an unconventional, indeed unique, challenge.
+I see no barrier at all to this in the fact that the parties did not directly contemplate or cater for it in the insurance policy between them.
+It is equally clear that they did not contemplate or cater for the principles imposed upon them by the decisions in Fairchild and Trigger.
+To carry the declaratory theory to the point of asserting the contrary would be absurd.
+To say that [judges] never change the law is a fiction and to base any practical decision upon such a fiction would indeed be abstract juridical correctitude, rather it is the case that a judicial decision can change the law retrospectively: Deutsche Morgan Grenfell Group plc v IRC [2006] UKHL 49, [2007] 1 AC 558, para 23, per Lord Hoffmann.
+Equally, the fact that the parties may not have contemplated or made specific provisions about co insurance and self insurance on the basis of those decisions is no obstacle to the court doing so.
+To say (as Lord Sumption does: para 185) that there has here been a contractual allocation of risks which precludes the court taking steps to avoid evident absurdity which no contracting party can sensibly have contemplated or intended appears to me unrealistic.
+There was a contractual allocation of risks on the basis and in respect of exposure by the insured during the policy period.
+But if there was further exposure by the insured, outside the policy period, there is no reason why the insurer should not have proportionate recourse against anyone who can be seen to carry the risks attaching to such further exposure.
+There is nothing inconsistent with the agreed insurance or its period in deriving from a consideration of circumstances outside that insurance and its period a right to contribution in respect of the loss incurred in the first instance by the insurer: see further paras 67 73 below.
+In summary, so long as the insured has insured itself for the whole period for which it exposes the victim, the insurer can ask for no more, and must, as Trigger decides, bear the whole of any liability which the insured incurs.
+The palliative in this latter situation is of course that an employer/insured will have a right to contribution under the Civil Liability (Contribution) Act 1978 against any other person who was, negligently or in breach of duty, responsible for exposing the victim to asbestos, and its insurer will, after meeting the insurance claim, be subrogated to this right to contribution against the other responsible source of exposure.
+The anomalies therefore only arise when the insured has exposed the victim for a longer period than that for which it is covered by the insurer to which it chooses to look for indemnity.
+The anomalies are, as stated, not capable of being addressed by any of the laws existing tools for dealing with more conventional problems.
+As observed in Trigger, paras 67 68, section 3(3) of the 2006 Act preserves the conventional tools, found in the Law Reform (Contributory Negligence) Act 1945 and the Civil Liability (Contribution) Act 1978, for dealing with the conventional problems of contributory fault (by a victim of mesothelioma) and concurrent liability in respect of the same damage (between different persons responsible for exposing a victim of mesothelioma to asbestos dust, whether over the same or different periods).
+Persons responsible for exposing victims to asbestos dust are thus appropriately protected.
+Their protection is carried one step further by section 3(7), which enables the Treasury to make regulations for the provision of compensation to a responsible person who is unable to obtain contribution under the 1978 Act, because an insurer of such person is or is likely to be unable to satisfy the claim for a contribution.
+By definition in section 3(10), the reference in section 3(7) to a responsible person also includes an insurer of such a person.
+That is the only respect in which the Act addresses the interests of an insurer, as a corollary of the rules relating to contribution between persons responsible.
+The Act is not concerned with, and does not address, the effects on insurers or as between persons responsible and insurers of the special rule as modified by section 3(1) and (2).
+It is for the courts to work out these effects at that level.
+Co insurance
+So far as appears, during the overall period of 27 years during which it exposed Mr Carr to asbestos dust, GGLCL only had insurance for two periods, six years with Midland and two years with Excess.
+Not surprisingly, no previous authority exists regarding the relationship between Midland and the Excess in the present context.
+Zurich could not have any sort of subrogation right against Excess, since, if Zurich is liable for IEGs full loss, IEG can have no further claim for indemnity against Excess.
+Further, no one would ordinarily regard insurances for different insurance periods as double insurance.
+The reason for taking out or renewing a fresh annual policy during a fresh year is, on the contrary, the common sense truism that, unless one does so, one will be uninsured.
+The concept of double insurance, as hitherto recognised in English law, was explained by Mr Gavin Kealey QC, sitting as a deputy judge of the Commercial Court, in National Farmers Union Mutual Insurance Society Ltd v HSBC Insurance (UK) Ltd [2010] EWHC 773 (Comm), [2010] 1 CLC 557, para 15: Double insurance arises where the same party is insured with two (or more) insurers in respect of the same interest on the same subject matter against the same risks.
+If a loss by a peril insured against occurs, the general rule is that, subject to any particular modifying terms and to the limits of indemnity provided under each insurance contract, the insured may recover for the whole of the loss from either insurer.
+Upon such indemnity being paid to the insured by either one of the two insurers, that insurer is, in general, entitled to recover a contribution from the other.
+To quote from Lord Woolf in Eagle Star Insurance Co Ltd v Provincial Insurance plc [1994] 1 AC 130, 138: As was pointed out by Lloyd LJ at the beginning of his judgment in the Legal and General case [Legal and General Assurance Society Ltd v Drake Insurance Co Ltd] [1992] QB 887, 891], in general the principles on which one insurer is entitled to recover from another in a case of double insurance have been settled since Lord Mansfield's day.
+As Kitto J stated in Albion Insurance Co Ltd v Government Insurance Office of New South Wales (1969) 121 CLR 342, 349 350, a principle applicable at law no less than in equity, is that persons who are under co ordinate liabilities to make good one loss (eg sureties liable to make good a failure to pay the one debt) must share the burden pro rata: the object being, as Hamilton J stated in American Surety Co of New York v Wrightson (1910) 103 LT 663, 667: to put people who have commonly guaranteed or commonly insured in the same position as if the principal creditor or the assured had pursued his remedies rateably among them instead of doing as he is entitled to do, exhausting them to suit himself against one or other of them.
+Previous first instance statements to like effect that double insurance requires the same insured to be covered in respect of the same property against the same risks can be found in Petrofina (UK) Ltd v Magnaload Ltd [1984] 1 QB 127, 140F G per Lloyd J, followed in Wimpey Construction UK Ltd v D V Poole [1984] 2 Lloyds Rep 499, 516 (Webster J).
+The insurances taken out with Midland and Excess would not satisfy this concept.
+In particular, they were not on the same interest or against the same risks.
+Nor does the special rule recognised in Fairchild as modified by the 2006 Act make them so.
+The Excess policies covered injury or disease caused by the risk of exposure occurring in 1979 and 1980, whereas the Midland policies covered injury or disease caused by the risk of exposure occurring in the years 1983 to 1988.
+If one accepts the definition accepted by Gavin Kealey QC, then Eady J was right in Phillips v Syndicate 992 Gunner [2003] EWHC 1084 (QB), [2004] Lloyds Rep IR 426, para 22, to reject the submission that two or more successive policies of insurance could be regarded as covering the same liability towards a victim of mesothelioma for the purposes of a condition in the relevant policy in that case addressing situations of double insurance.
+However, Australian appellate courts have been willing to contemplate a more relaxed view of double insurance, to address situations where the same liability is ultimately covered albeit by different routes and involving different insureds: AMP Workers Compensation Services (NSW) Ltd v QBE Insurance Ltd [2001] NSWCA 267, (2001) 53 NSWLR 35, Zurich Australian Insurance Ltd v GIO General Ltd [2011] NSWCA 47.
+They have in a series of cases also emphasised the root principles of equity and justice which lie behind the laws recognition of rights of contribution: see Albion Insurance Co Ltd v Government Insurance Office of New South Wales [1969] HCA 55, 121 CLR 342, esp per Kitto J. Kitto Js judgment has been cited with approval in Burke v LFOT Pty Ltd [2002] HCA 17, 187 ALR 612, Zurich Australian Insurance Ltd v GIO General Ltd [2011] NSWCA 47 and, in a brief extract, by Lloyd LJ in the Legal and General case: see para 57 above.
+As Burke v LFOT Pty Ltd shows, Australian courts have carried the doctrine of equitable contribution far enough for it to provide as a matter of common law a right of contribution in respect of any common obligation, with a breadth and flexibility similar to that statutorily available in England under, now, the Civil Liability (Contribution) Act 1978, and, previously (though only as between tortfeasors), the Law Reform (Married Women and Joint Tortfeasors) Act 1935.
+In Burke itself the claim for contribution was only refused because it was inequitable in the particular circumstances to award any contribution against a negligent solicitor in favour of LFOT which had engaged in misleading and deceptive conduct in breach of a statutory obligation.
+Contribution is, ultimately, a principle based on natural justice, as Lord Mansfield said in Godins case, cited in para 26 above.
+A similar justification was given by Lord Chief Baron Eyre in Dering v Earl of Winchelsea (1787) 1 Cox Eq 318, 321, for recognising a right of contribution between sureties who had each accepted distinct and separate obligations and were not therefore in any contractual relationship with each other: If we take a view of the cases both in law and equity, we shall find that contribution is bottomed and fixed on general principles of justice, and does not spring from contract; though contract may qualify it . [I]n equali jure the law requires equality; one shall not bear the burthen in ease of the rest, and the law is grounded in great equity.
+A similar approach is not out of place in a context where the law has developed new liabilities to redress perceived injustice.
+Consistently with this, Charles Mitchell, in The Law of Contribution and Reimbursement (2003) notes, para 4.14, that The categories of claimant by whom contribution can be claimed at common law or in equity are not closed Mitchell cites in this connection, inter alia, Burke v LFOT Pty Ltd. Meagher, Gummow and Lehane in Equity, Doctrines and Remedies (4th ed) (2002), para 10 020, also note the influence on the principles governing contribution of the equitable maxim that equality is equity and the doctrine of marshalling, whereby: as between several interested parties it should not rest with the creditor by his selection of remedies open to him to determine where ultimately the burden was to fall.
+The Legal and General case, referred to in the passage cited by Mr Gavin Kealey QC (see para 57 above), illustrates the latter principle.
+There the insureds choice to proceed against insurer A under one policy meant that no notice of claim was given to insurer B under the other policy within 14 days as required by its terms.
+It was held by the majority (Lloyd and Nourse LJJ) that the absence of any such notice did not defeat the claim for contribution based on double insurance.
+Again, the reasoning is founded on broad principles of equity: Since the assured could have gone against B, had he chosen to do so, the burden as between A and B should be shared equally.
+It would be inequitable for either of the insurers to receive the benefit of the premium without being liable for their share of the loss. (per Lloyd LJ, p 892C D) There being no contract between the two insurers, the right of contribution depends, and can only depend, on an equity which requires someone who has taken the benefit of a premium to share the burden of meeting the claim.
+Why should that equity be displaced simply because the assured has failed to give the notice which is necessary to make the other insurer liable to him? As between the two insurers the basis of the equity is unimpaired.
+He who has received a benefit ought to bear his due proportion of the burden. (per Nourse LJ, at p 898B D)
+In my view, the principles recognised and applied in Fairchild and Trigger do require a broad equitable approach to be taken to contribution, to meet the unique anomalies to which they give rise.
+I note that this solution is also advocated by Professors Merkin and Steele in their recent study on Insurance and the Law of Obligations (2013) (OUP), p 378.
+If a broad equitable approach is taken in the present unique circumstances, then it should no doubt also be possible in the present context to overcome the normal presumption with double insurance that loss should be shared equally.
+Contribution between insurers covering liability on the basis of exposure should take account of differing lengths of insured exposure.
+Conventional rules need to be adapted to meet unconventional problems arising from the principles recognised and applied in Fairchild and Trigger.
+An alternative possible avenue of recourse against a double insurer in respect of policy liabilities based on breach of an obligation assumed on or after 1 January 1979 is the Civil Liability (Contribution) Act 1978.
+The argument would be that both insurers are liable for the same damage within the meaning of section 1(1) of that Act.
+The possibility that the 1978 Act applies is dismissed in Colinvaux & Merkins Insurance Contract Law, para C 0643, while Charles Mitchell in The Law of Contribution and Reimbursement, (2003), paras 4.13 and 4.43 4.44, suggests that it turns on whether liability under an indemnity insurance is regarded as the right to be indemnified by a payment of money or is, under a view which the author suggests that the cases favour, regarded as arising from breach of an undertaking to prevent the insured risk from materialising.
+It is unnecessary to resolve this difference here.
+It suffices to say that, if insurance contract liabilities are viewed as sounding in damages, it appears somewhat surprising if the 1978 Act could operate as an alternative statutory remedy with different effect in a case of true double insurance in respect of post commencement liabilities.
+Self insurance
+The extension of currently recognised principles of double or co insurance would operate only to address a very limited part of the problem.
+The fundamental problem remains that Zurich is, as a result of insurance policies covering only six years of exposure, liable for consequences of an exposure lasting 27 years.
+There can be and is no proof or likelihood that the mesothelioma resulted from fibres ingested in the six, rather than the remaining 27, years.
+Even assuming that Zurich has a right of contribution against the Excess, this can only be in respect of two of those 27 years, so that the two insurers would, if matters stopped there, share the consequences of 27 years of exposure by GGLCL on the basis of only eight years of insurance in the proportions of (Zurich) and (Excess).
+The obvious counter balance in this situation is to treat the insured employer, GGLCL or now IEG, as a self insurer for the remainder of the 27 year period in respect of which it can show no insurance capable of affording contribution.
+Nothing obliged GGLCL to maintain its liability insurance with any particular insurer.
+But in so far as it chose not to take out any insurance or chose to insure with another insurer, that should in common sense be at its risk.
+It should not be able to avoid the consequences of that risk by electing to pursue Zurich.
+IEGs response to such an approach is in substance two faceted.
+It submits, first, that it finds no support in existing or conventional principles of contribution, and, second, that the recognition of a right of contribution would be inconsistent with the insurance contracts made with Midland.
+In my opinion, neither aspect of this response is valid.
+As to the first, if the common law always depended on a precedent, Fairchild, or perhaps the earlier Scots House of Lords authority of McGhee v National Coal Board 1973 SC (HL) 37, should never have been decided as it was; but in any event, as I shall indicate, the concept of contribution to counter balance a prima facie contractual right is not without precedent.
+The second part of IEGs response, the suggested inconsistency between any right of contribution and the insurance contracts which Midland issued for six years, is taken up by Lord Sumption, who rules out recoupment merely because it operates by reference to the [insurance] contract (Lord Sumption, paras 184 and 185).
+The answer to this in my view is that a mere need to refer to the insurance contracts is not fatal to a recoupment claim.
+It does not involve contradicting or acting inconsistently with such contracts.
+On the contrary, it is accepting their implications, and relying on matters independent of them.
+It is relying on GGLCLs decision not to insure with Midland for 21 years and its decision, so far as appears, to go without insurance for up to 19 of such years.
+These are matters that are not touched by, and are outside, the terms and scope of the Zurich and Excess policies.
+They ground an equity that IEG should contribute proportionately to a loss arising from risks of exposure continuing throughout the whole 27 years.
+Second, however, I do not accept that there is any absolute bright line principle, of the sort which IEG and Lord Sumption advocate, whereby equity must always refuse to recognise a right of contribution between parties to a contract which according to its terms involves a particular result.
+Neither jurisprudentially nor on authority is this so.
+There is a general rule to that effect, but it is subject to exceptions.
+The position is well put by Professor Andrew Burrows QC in The Law of Restitution (3rd ed) (2011), p 88 et seq: (i) The general rule Where the defendant is legally entitled to the enrichment in the sense that that enrichment is owed to it by the claimant under a valid legal obligation [FN15: This will most commonly be a contractual or statutory obligation. ] there can normally be no liability to make restitution despite there being an unjust factor.
+The reason for this is that the prima facie injustice established by the unjust factor is normally outweighed by the fact that the defendant is legally entitled to the enrichment.
+Overall, therefore, the enrichment is not unjust. (ii) Exceptions to the general rule Although the general rule is that the claimant will not be entitled to restitution where the defendant was legally entitled to the enrichment, there are some exceptions.
+The interplay between the general rule and the exceptions is an interesting and difficult one which, until recently, had been little explored.
+In essence it would appear that the exceptions operate where, contrary to the general position, there is no policy inconsistency in granting the claimant restitution of the enrichment even though the defendant is legally entitled to it.
+Put another way, the prima facie injustice constituted by there being an unjust factor is not outweighed by the defendant's legal entitlement to the enrichment.
+Professor Burrows then gives four examples of exceptions, concluding, at p 91: The recognition and application of exceptions requires a carefully considered approach to the policies involved.
+A blanket rule that legal entitlement to the enrichment bars restitution does not represent the present law and would be needlessly blunt and insufficiently nuanced.
+Two of Professor Burrows examples are Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 and Deutsche Morgan Grenfell Group plc v IRC [2006] UKHL 49, [2007] 1 AC 558.
+The other two examples are restitution in respect of contractual obligations accruing due prior to frustration or termination for breach and restitution in respect of services rendered under an unenforceable contract.
+In Roxborough contracts for sale of tobacco products had been made at prices which took account of a so called licence fee which the High Court of Australia had subsequently held to be an unlawful excise duty.
+The majority held that it was not possible to imply any term to cater for this unforeseen eventuality (paras 20 and 60), but that restitutionary relief could be granted in respect of the tax component of the price.
+Gleeson CJ, Gaudron J and Hayne J said that there was no conceptual objection to treating this as a severable part of the consideration which had failed, because it would not result in confusion between rights of compensation and restitution, or between enforcing a contract and claiming a right by reason of events which have occurred in relation to a contract. (para 21) Gummow J said (para 75) that the action to recover the moneys sought by the appellants after the failure of the purpose of funding Rothmans to renew its licence may be illustrative of the gap filling and auxiliary role of restitutionary remedies.
+These remedies do not let matters lie where they would fall if the carriage of risk between the parties were left entirely within the limits of their contract.
+Hence there is some force in the statement by Laycock [The Scope and Significance of Restitution (1989) 67 Texas Law Review 1277, 1278]: The rules of restitution developed much like the rules of equity.
+Restitution arose to avoid unjust results in specific cases as a series of innovations to fill gaps in the rest of the law.
+As Gummow J went on to point out, there is authority of Lord Mansfield in the same direction.
+Moses v Macferlan (1760) 2 Burr 1005, a corner stone of common law restitution, was itself a case where the plaintiff successfully reclaimed in the Kings Bench money which he had been held liable to pay under various bills by the Court of Conscience, which had refused or been unable to look at the parties wider relationship outside the bills.
+The plaintiff could not rely on any express or implied promise to repay.
+Lord Mansfield grounded the obligation simply on the equity of the plaintiffs case to recover back money, which ought not in justice to be kept (pp 1009 and 1012), and later described it as a liberal action in the nature of a bill in equity: Clarke v Shee (1774) 1 Cowp 197, 199.
+In Deutsche Morgan Grenfell the legislation governing advance corporation tax (ACT) contravened EU law in not allowing the claimant the option to avoid or defer ACT by making a group income election.
+Absent any actual election by Deutsche Morgan Grenfell (DMG), ACT was strictly due.
+But it was held recoverable.
+Professor Burrows states, at p 91: The best explanation for the departure from the general rule is that restitution did not here conflict with the statutory obligation because that statutory obligation was undermined by the legislature's failure, contrary to EU law, to provide a group income election for companies such as the claimants.
+As a matter of policy the injustice of the ultra vires exaction outweighed the point that, technically, the Revenue was legally entitled to the tax.
+Unsurprisingly, in view of the obvious equity of DMGs position, the judgments take this aspect very shortly.
+Lord Hoffmann treated the election provisions as purely machinery and the real mistake as being whether DMG was liable for ACT (para 32).
+But Lord Hope (para 62) and it seems Lord Walker (para 143) (and Lord Scott, dissenting, paras 81 82) agreed with the trial judge (Park J) that the case fell to be analysed on the basis that, in the absence of any actual election, the tax was due.
+On that basis Lord Hope and Lord Walker held it recoverable, because it became due as a result of DMGs mistaken belief that it could not claim group relief by making an election.
+Lord Brown expressed general agreement with Lord Walkers speech (para 161 162), but elsewhere also spoke of the ACT as not due (para 172).
+In the present case, applying the approach indicated by Professor Burrows, there is no policy inconsistency between recognising that the terms of the insurances underwritten by Midland make Zurich answerable in the first instance for IEGs liability towards Mr Carr and recognising an equity, based on consideration of the wider circumstances in particular GGLCL/IEGs exposure of Mr Carr for further periods when it was not insured by Midland requiring IEG itself to contribute towards Zurichs cost of meeting such liability.
+This conclusion is also not inconsistent with the well established principle of insurance law that an insured can recover under an insurance for a risk which is covered, even though another cause of the loss exists which is not covered, so long as that other cause is not positively excluded: see eg Wayne Tank and Pump Co Ltd v Employers Liability Assurance Corpn Ltd [1974] QB 57.
+Generally, insurance law identifies a single effective, dominant or proximate cause, though there can be rare exceptions where there are dual effective causes as Wayne Tank illustrates.
+But the principle addresses a situation where more than one cause operating during the policy period can be said to have caused the insured loss in a conventional sense, that is by bringing it about or contributing to it as a matter of probability.
+It is not directed to the present situation where liability is based on a causal link consisting only of the risk involved in exposure, where the insured loss arises from exposure both within and outside the insurance period, and where the exposure outside the insurance period increased the risk of the insured loss occurring proportionately.
+Nor is the analysis in the previous paragraphs inconsistent with the House of Lords decision in Simpson & Co v Thomson (1877) 3 App Cas 279.
+An insured vessel was run down and lost with all its cargo in a collision due to the negligence of another vessel owned by the same insured.
+The underwriters of the first vessel having paid claimed to rank pari passu with the lost cargo owners in the distribution of the limitation fund lodged in court by the owners in respect of the second vessel.
+Insurers under English law have no right in their own name to recoup insured losses from wrongdoers.
+They have to rely on rights of subrogation, using their insureds name.
+Since the common owner of the two vessels could not sue himself, the underwriters claim failed.
+The case does not however address situations of contribution.
+Where there is a right to contribution, an insurer can recoup his loss from a third party.
+Here, the question is whether a right of contribution should be recognised by Zurich against IEG on the basis that IEG should in justice pay its proportionate part of a liability arising from a risk which increased proportionately over the whole period of 27 years during which it exposed Mr Carr to asbestos dust.
+It is equally irrelevant that the law knows no such thing as a contract of self insurance.
+It is of course true that, just as an insured cannot sue himself, so an insured cannot in law insure with himself.
+But the concept of self insurance is not unhelpful in identifying an important truth.
+A person who does not insure at all is well understood to be undertaking a risk for his own account, for which he should answer accordingly.
+A person who after insuring for a period with insurer A then goes for a period to insurer B is understood to be looking in relation to the later period to insurer B alone.
+Even courts are entitled to deploy a helpful phrase to point to such truths.
+The United States courts did so in Insurance Company of North America v Forty Eight Insulations Inc 633 F 2d 1212 and Security Insurance Co of Hartford v Lumbermens Mutual Casualty Co (2003) 264 Conn 688, 826 A 2d 107, when they held that, as between an insured and its insurers, liability for defence costs should be pro rated across all periods of insurance and self insurance during which exposure had occurred.
+In Lumbermens the insurer was thus held liable pro rata by reference to the relationship between its insurance period, other periods of insurance with other insurers and periods of self insurance.
+The use of the concept in this jurisdiction is illustrated by Lord Napier and Ettrick v Hunter [1993] AC 713, 730E F, where Lord Templeman had no hesitation about describing a Lloyds name as his own insurer in respect of a 25,000 excess under the stop loss policy in issue.
+He concluded in its light that such a name was not entitled, as against his stop loss insurers, to retain the benefit of damages for negligent underwriting received from the Outhwaite syndicate.
+The fundamental principle in Castellain v Preston (1883) 11 QBD 380, that an insured was entitled to be fully indemnified, was not helpful in deciding whether a name who promised the stop loss insurers to bear the first 25,000 loss is entitled to be put in the same position as an insured person who makes no such promise: p 731B C.
+In the present case, an insured who insures for a limited period necessarily accepts that it is only liability incurred during that period for which he has cover.
+The unique feature of the present situation is that the whole substratum of the relevant insurance policies has changed fundamentally since they were underwritten, and the law has, for the first time ever, imposed liability on the basis of risk, rather than the probability, that negligence during the insurance period led or contributed to the illness complained of.
+The concomitant of insurance liability in this situation must be a recognition that the law can and should redress the unjust and wholly anomalous burden which would otherwise fall on any particular insurer with whom insurance was only taken out for part of the total period of exposure by the insured, by recognising an obligation on the part of the insured to contribute pro tanto to such liability as a self insurer.
+In my opinion, therefore, Zurich is entitled to look to IEG to make a contribution based on the proportionate part of the overall risk in respect of which it did not place insurance with Midland and in respect of which Zurich does not recover contribution from any other insurer.
+Any contribution which is credited by Excess to Zurich in excess of 2/27 of Zurichs liability to IEG should also give Excess a corresponding right to contribution from IEG.
+I believe that this leads in practice, at least in the case of a solvent insured, to substantially the same result as that at which Lord Sumption arrives, but by a different route, which in my opinion reflects the reasoning and result in Trigger.
+The difference between the two routes may however be important in the context of an insured who is not solvent.
+It is convenient to address an area about which Lord Sumption expresses conclusions at the outset of his judgment, and to which he reverts at paras 172 173.
+That is that the conclusions reached up to this point will not mesh with the FSCS schemes established under the Financial Services and Markets Act 2000 for insurer insolvency (see para 6 above) and more recently the Mesothelioma Act 2014 for cases where there is employer insolvency and no identifiable insurer.
+This point relates to statutory schemes separate from and in part post dating the development of the common law and statutory principles with which this appeal is concerned.
+No submissions have been addressed to the court on it.
+That itself also suggests that the insurance industry and their expert representatives before this court do not share Lord Sumptions concerns.
+One reason for this may also be that Lord Sumptions account of the position is incomplete.
+He states that The effect of the majoritys view is simply to transfer risk from the statutory compensation schemes which were created to assume that risk, to an arbitrarily selected solvent insurer who has not agreed to do so (para 112, last sentence).
+This analysis does not address the fact that, on his own case, the statutory compensation schemes do not cover all situations or losses.
+Take a case of two responsible employers, one of which [A] is solvent or has a solvent insurer for the whole period for which it exposed the victim, the other of which [B] is insolvent and without any identifiable insurer.
+The victim will, on Lord Sumptions case (para 160), recover 100% from employer A. Employer B will be liable to contribute to employer A (or its insurer, by right of subrogation), but will have no money and no insurer to enable it to do so.
+The 2014 Act scheme will not step into the gap to enable employer A or its insurer to recoup pro rata contribution, because of section 2(1)(d) or (e), and possibly also because of section 2(1)(c), of the Act.
+This is because the Act was passed to protect unpaid victims, not for insurers benefit.
+It was and is directed, as the notes to the relevant Bill state, to situations where by virtue of the passage of time no solvent employer remains to be sued, and the employee is often unable to trace any insurer who was providing EL insurance to the employer at the relevant time.
+Recovery from another insurer of another employer precludes use of the 2014 scheme: see The Diffuse Mesothelioma Payment Scheme 2014, by Judge Nicholas Wikeley, Emeritus Professor at Southampton University, (2014) 21 JSSL 65, 78.
+Any action for damages or receipt of any damages or of a specified payment (which, like the 2014 scheme itself see para 6 above might not cover the full loss) precludes use of the 2014 scheme.
+This makes sense, since the 2014 scheme assumes, in general, that any recovery by a mesothelioma victim will correspond, even if only approximately, with full recovery of the victims whole loss.
+This is unsurprising in the light of Fairchild, the 2006 Act and Trigger, all of which form part of the background to the Act.
+But it indicates that the 2014 Act, far from supporting, is inconsistent with the scheme which Lord Sumption advocates whereby an insurer may only be liable to indemnify on a pro rata basis.
+Finally, if Lord Sumption be right and he has identified significant potential anomalies on the approach which has been advocated by counsel representing insurers before us and which in my opinion should be adopted, the reality is that the Fairchild enclave has necessitated adjustment from time to time of the legal and regulatory framework by the courts, the legislature and regulatory authorities.
+As Wikeley notes, further attempts to engineer improvements to the underlying compensation arrangements [are] almost inevitable (p 82).
+I do not myself see such a process of adjustment as one from which courts should withdraw.
+Third Parties (Rights against Insurers) Act
+Since IEG is solvent and has met the whole of Mr Carrs loss, the present appeal concerns only the relationship between IEG and Zurich.
+In that context, the precise legal relationship between Zurichs right to look to IEG for contribution and IEGs policy claim against Zurich does not matter.
+In practice, even if Zurichs right to contribution does not give rise to a defence, a procedural order for a stay would ensure that the one claim could not be enforced without taking into account the other.
+But in cases where the person responsible is insolvent, and the use of the Third Parties (Rights against Insurers) Act 1930 (soon, it is to be hoped, to be replaced by the 2010 Act) is invoked, it may be important whether the right of contribution which Zurich enjoys constitutes a defence reducing the indemnity for which the insured can sue under that Act.
+Section 1 of the 1930 Act provides: (1) Where under any contract of insurance a person (hereinafter referred to as the insured) is insured against liabilities to third parties which he may incur, then (a) in the event of the insured becoming bankrupt or making a composition or arrangement with his creditors; or (b) in the case of the insured being a company, in the event of a winding up order or an administration order being made, or a resolution for a voluntary winding up being passed, with respect to the company, or of a receiver or manager of the companys business or undertaking being duly appointed, or of possession being taken, by or on behalf of the holders of any debentures secured by a floating charge, of any property comprised in or subject to the charge or of a voluntary arrangement proposed for the purposes of Part I of the Insolvency Act 1986 being approved under that Part; if, either before or after that event, any such liability as aforesaid is incurred by the insured, his rights against the insurer under the contract in respect of the liability shall, notwithstanding anything in any Act or rule of law to the contrary, be transferred to and vest in the third party to whom the liability was so incurred. (2) Where the estate of any person falls to be administered in accordance with an order under section 421 of the Insolvency Act 1986, then, if any debt provable in bankruptcy is owing by the deceased in respect of a liability against which he was insured under a contract of insurance as being a liability to a third party, the deceased debtors rights against the insurer under the contract in respect of that liability shall, notwithstanding anything in any such order, be transferred to and vest in the person to whom the debt is owing. (3) In so far as any contract of insurance made after the commencement of this Act in respect of any liability of the insured to third parties purports, whether directly or indirectly, to avoid the contract or to alter the rights of the parties thereunder upon the happening to the insured of any of the events specified in paragraph (a) or paragraph (b) of subsection (1) of this section or upon the estate of any person falling to be administered in accordance with an order under section 421 of the Insolvency Act 1986, the contract shall be of no effect. (4) Upon a transfer under subsection (1) or subsection (2) of this section, the insurer shall, subject to the provisions of section 3 of this Act, be under the same liability to the third party as he would have been under to the insured, but (a) if the liability of the insurer to the insured exceeds the liability of the insured to the third party, nothing in this Act shall affect the rights of the insured against the insurer in respect of the excess; and (b) if the liability of the insurer to the insured is less than the liability of the insured to the third party, nothing in this Act shall affect the rights of the third party against the insured in respect of the balance.
+When the 1930 Act applies, it therefore transfers to the mesothelioma victim the insureds rights under the insurance contract in respect of the insureds liability to the victim.
+The same is provided by the 2010 Act, not yet in force.
+Whether an insurers right to contribution against the insured constitutes a full or partial answer to a victims policy claim based on such a transfer is a question of great potential importance.
+It raises questions of some complexity, on which it is unnecessary to give a final answer on this appeal, but about which I wish to make some observations.
+One question is whether, apart from any statutory transfer under the 1930 or 2010 Act, the insurers right to contribution would be a defence at common law to a claim by the insured for indemnity under the insurance, as opposed to giving rise to procedural remedies such as a stay.
+A second is whether it makes any difference to the application of the relevant common law rules in this context that the claim is being brought under the 1930 or 2010 Act.
+A third is whether the terms of the Act positively exclude or restrict any such defence.
+The first and second aspects raise, as sub issues, the existence of any right of relief based on set off, circuity of action or other equitable basis.
+Zurich positively submitted that it would have no right of set off, legal or equitable.
+One objection to set off is that a right to contribution only arises upon payment by the person seeking contribution: see eg Andrews & Milletts Law of Guarantees (6th ed) (2011), para 12 019, citing Ex p Gifford (1802) 6 Ves Jr 805 and In re Snowdon (1881) 17 Ch D 44; and see Davies v Humphreys (1840) 6 M & W 153, Stirling v Burdett [1911] 2 KB 418 and In re Beaven [1913] 2 KB 595, 600.
+On the face of it, that presents a real obstacle to any suggestion by any insurer in Zurichs position of set off, whether legal or equitable, against IEGs claim for the full amount of its loss.
+There is however first instance authority endorsing the availability of a further remedy in cases where a person A (here, for example, Zurich), liable to make a payment to person B (here, the person suffering mesothelioma), has a potential right to receive contribution (or a full indemnity) from a third person C (here, IEG).
+In Wolmershausen v Gullick [1893] 2 Ch 514, Wright J made a prospective order in such a case directing that, upon person A paying person B, person C was to exonerate person A from liability beyond person As share.
+In Rowland v Gulfpac Ltd [1999] Lloyds Rep 86, 98, Rix J held that he had jurisdiction to grant a freezing order quia timet to support an indemnity claim by person A against person C, even though the common law claim for an indemnity was not complete.
+His decision was more recently followed by Burton J in Starlight Shipping Co v Allianz Marine & Aviation Versicherungs AG (The Alexandros T) [2011] EWHC 3381 (Comm), [2012] 1 Lloyds Rep 162, paras 37 38, where he said that the constitution of such a fund would ensure that person A was held harmless and not be required to use his own funds to discharge liabilities falling within the relevant contract of indemnity by person C.
+Accepting the fairness of the thinking behind this first instance authority without further examination, I doubt whether it could or should affect the application of the general principle mentioned in para 86 in the particular context of a claim by a victim under the 1930 or 2010 Act.
+Zurichs obligation under the insurance and that Act would be to indemnify the victim.
+Any consequential right to contribution from IEG would arise not under, but outside, the insurance contract in terms of section 1(1) of the 1930 Act.
+Considerations of justice and policy would also support the treatment of the insurance and the contribution positions as legally separate, when an opposite approach would be to the prejudice of the victim, in whose favour the insurance would otherwise operate and who is not concerned with the circumstances giving rise to any contribution claim.
+A second sub issue is that legal set off is in any event confined to debts due and payable and either liquidated or capable of ascertainment without valuation or estimation: Stein v Blake [1996] AC 243, 251 per Lord Hoffmann.
+On current authority, at Court of Appeal level, the right to recover under an insurance contract is classified not as a debt, but as a right in damages: see eg The Italia Express (No 2) [1992] 2 Lloyds Rep 281, 286, Sprung v Royal Insurance (UK) Ltd [1999] 1 Lloyds Rep IR 111.
+Further, a right to claim proportionate contribution would not normally satisfy the test of legal set off, although, on the agreed facts in this case, it might perhaps do so, since they lead to a definite percentage contribution of 22.08%.
+Regardless of the view taken on these two points, legal set off is procedural, not substantive.
+When one comes to the second aspect, the statutory transfer probably therefore precludes legal set off.
+In contrast, equitable set off, where available, can give rise to a substantive defence.
+The locus classicus is Hanak v Green [1958] 2 QB 9 and the later case law includes Federal Commerce and Navigation Co Ltd v Molena Alpha Inc (The Nanfri) [1978] 2 QB 927, and has, more recently, been analysed by Rix LJ in Geldof Metaalconstructie NV v Simon Carves Ltd [2010] EWCA Civ 667, [2010] 4 All ER 847.
+Rix J noted (para 26) that in The Nanfri the Court of Appeal had identified the need for the cross claim to arise out of the same transaction as the claim or be closely connected with it.
+He concluded (para 43(vi)) that the best restatement of the principle was that it applies where there were a cross claim so closely connected with [the claimants] demands that it would be manifestly unjust to allow him to enforce payment without taking into account the cross claim.
+Again, I consider that, in a context where any set off arises from circumstances outside the insurance policy and would be to the prejudice of a third party victim, the considerations of policy and justice behind the rules developed in Fairchild and Trigger would probably mean that it was just (rather than manifestly unjust) for Zurich to have to fulfil its insurance policy obligations, before asserting against IEG any contribution claim based on circumstances outside the scope of the insurance to the prejudice of that victim.
+Even in circumstances where liability insurance is not compulsory, it would be wrong to view liability insurance as if its only rationale was to benefit the insureds bottom line, rather than to give effect to legitimate expectations regarding the protection of employees and other third party victims.
+That rationale is reflected in the 1930 and 2010 Acts, and reinforced by the now compulsory nature of employers liability insurance.
+The court would also be entitled to take it into account, when considering for the purposes of equitable set off what is or is not manifestly unjust.
+As to circuity of action, this is an ill defined principle, recently confirmed though not elaborated in Farstad Supply A/S v Enviroco Ltd [2010] UKSC 18, [2010] Bus LR 1087, where previous authorities are identified.
+In the present context it could not, I think, be more than a remedy existing where there would be no point in a claim being permitted, because any amount awarded could be immediately recovered on another basis.
+On that basis, it could not add anything to the previous discussion.
+The third aspect identified in para 85 above would also be problematic, were it to be relevant.
+Where an insurer does have a set off (one which appears in each case to have been capable of operating in equity), there is conflicting authority as to whether such a set off is excluded by the 1930 Act.
+In Murray v Legal and General Assurance Society Ltd [1970] 2 QB 495, Cumming Bruce J held that a right to recover premiums did not arise in respect of the insureds liability to the third party, within section 1(2), and that insurers could not therefore set off unrecovered premiums.
+In Cox v Bankside Members Agency Ltd [1995] 2 Lloyds Rep 437, 451, Phillips J refused to follow Murray and held the third party claim to be subject to a set off arising from payment by insurers of defence costs falling within the insureds policy excess and recoverable either under an express policy term or in restitution.
+However, both these cases concerned cross claims which arose directly from and under the insurance policy.
+Here, any right of contribution is best analysed in my view as arising from circumstances outside the insurance policy, and on that basis as not capable of giving rise to a set off at all.
+As noted in para 86 above, no right of contribution normally arises until payment.
+Once the victim (person C) has established the liability of the insured (person B), person Bs rights to indemnity by the insurer (person A) under the contract in respect of that liability are transferred to person C. Neither Murray nor Cox concerned a defence to a claim under the insurance contract which was based on a cross claim arising from circumstances outside the insurance contract and which could only become due on person B being paid in full in respect of his liability to person C.
+There is thus, in my view, a strongly arguable case for treating the language of section 1(1) of the 1930 Act as entitling the third party to recover against the insurer in such a case, leaving the insurer to enforce any claim to contribution which it may have against anyone separately and in the ordinary course, subsequently.
+Conclusions
+For reasons given in paras 37 and 38 above, there are significant differences between the defence costs incurred by IEG and the hypothetical position regarding compensation in circumstances covered by the 2006 Act, which I have been discussing in paras 39 to 82.
+In particular, the right to defence costs exists under the insurances on a conventional causative basis, and the defence costs incurred were not increased by the fact that they related to a claim for an additional 21 years in addition to the six years insured by Midland.
+In contrast, in the hypothetical position, the insurer only incurs liability on the unconventional basis of a risk that the mesothelioma was due to exposure during the insurance period, when there was a proportionately greater risk that mesothelioma was due to exposure during other periods when the insured did not insure at all or chose to insure elsewhere.
+It may still be as a matter of fact that the likelihood of mesothelioma occurring (and so of any defence costs being incurred) would have been proportionately reduced, had there only been exposure during the six years of the Midland insurance.
+But the liability for defence costs incurred in defending a claim embracing a period longer than that insured arises directly from the policy wording, as it would always have been understood, and it has, at most, been only indirectly affected by the special rule of causation and statutory intervention which have impacted the rest of the main insuring clause.
+In these circumstances, the impetus to recognise a right to contribution as a matter of compelling justice and equity is self evidently diminished.
+I would therefore decline to recognise any such right to contribution in respect of defence costs, but I would accept that such a right exists regarding compensation in the hypothetical situation which would arise had the 2006 Act applied.
+On the agreed facts, the only tenable basis for apportioning responsibility and arriving at the appropriate contribution would be proportionately to the relevant periods of exposure insured and not insured with Midland.
+It follows from the above that the appeal should succeed on the first main point, as stated in para 35 above.
+It fails on the second main issue as regards defence costs.
+Had the 2006 Act been applicable, I would have recognised Zurich as having rights both to look to Excess for a pro rata share of liability and to require IEG to bear an appropriate contribution, as indicated in paras 39 to 82 above.
+As at present advised, and although IEG is solvent so that the present appeal is concerned only with the position between IEG and Zurich, I also consider that, in the case of a claim by a victim of mesothelioma against an insurer (such as Zurich) under the Third Party (Rights against Insurers) Act 1930, the insurer would be obliged to provide the full policy indemnity, without being able to set off against the victim any consequential right to contribution which it might thereafter have as against the insured (here IEG): see paras 83 to 93 above.
+LORD HODGE: (with whom Lord Mance, Lord Clarke and Lord Carnwath agree)
+The courts continue to grapple with the consequences of departing from the but for test of causation in order to provide a remedy to those who have contracted mesothelioma as a result of wrongful exposure to asbestos fibres.
+As the precise pathogenesis of that terrible disease is unknown, the House of Lords and the Supreme Court departed from established legal principle and extended the law of causation.
+As a result, an employer, which has wrongfully exposed its employee to significant quantities of asbestos fibres and thus materially increased the risk of his suffering mesothelioma, incurs liability in damages to the employee or his estate if the employee subsequently contracts the disease.
+The claimant does not have to prove on the balance of probabilities that the wrongful exposure caused or materially contributed to the development of the disease.
+This innovative rule of causation has, within its defined scope, which is not confined to mesothelioma, imposed liability not only on employers (Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 and Barker v Corus UK Ltd [2006] 2 AC 572) but also on their liability insurers through the courts interpretation of liability insurance contracts (Durham v BAI (Run Off) Ltd [2012] 1 WLR 867 (the Trigger litigation)).
+Parliament has also intervened in section 3 of the Compensation Act 2006 by reversing the effect of Barker in relation to mesothelioma cases.
+This appeal concerns the liability of an insurer which has provided an employer with liability insurance cover for only part of the period of the employees employment, during which he was wrongfully exposed to significant quantities of asbestos fibres, and the employer was either uninsured for the rest of the period or was insured by an insurer who is now insolvent or who cannot now be traced.
+The principal issues are (i) whether the insurance policies respond to the full extent of an employers liability to the employee or only a proportionate part of that liability fixed by reference to the periods of cover for which premiums have been assessed and paid, and (ii) if the former, whether the insurer has a claim against insurers of the employer in respect of other periods of the employees exposure and against the employer itself for periods in which it was uninsured or in respect of which its insurer can no longer be identified or traced.
+This court is unanimously of the view that section 3 of the Compensation Act 2006 did not change the common law, which the House of Lords had laid down in Barker v Corus UK Ltd [2006] 2 AC 572, but overrode it only to the extent that the section provides.
+The court also holds, unanimously, that the appeal fails on the issue of defence costs.
+On those matters no more need be said.
+The division of opinion arises in relation to what Lord Mance describes as the second main question, namely the extent of the insurers liability when it has insured the employer for part only of the period of the employees exposure.
+It is a matter of agreement that liability insurance would have been placed on the basis that a particular loss would fall into one insurance period, for which the insurer had assessed the premiums and provided the cover.
+As Lord Mance has shown in para 43 of his judgment and Lord Sumption in para 155 of his, it would be seriously anomalous if the insurer, which provided cover for a small proportion of the period of the employees exposure, were to carry the whole of the employers liability without any recourse against others in respect of the other periods of exposure.
+The stark options to avoid the identified anomalies are: (i) to hold, as Lord Sumption propones, that the insurance contract is to be construed so that the insurers liability for the loss is limited to the proportion of the policy years in which it provided cover relative to the whole period during which the employer wrongfully exposed the employee to the asbestos fibres; or (ii) to adopt the approach, which Lord Mance proffers, that the insurer must meet the whole of the employers liability to the employee and that, having done so, the insurer has the right to seek proportionate contributions from other insurers, which gave liability cover to the employer in other periods, and also, in respect of any period in which there was no insurance company from which a contribution can be obtained, against the employer itself.
+Each approach is a possible way of avoiding unfairness to the insurer.
+Lord Mances is more radical.
+I have found this a difficult case, not least because I am generally averse to developing the common law other than by the application of general principles.
+I have shared the concerns which Lord Neuberger and Lord Reed have articulated.
+But we are where we are.
+The law has tampered with the but for test of causation at its peril: Sienkiewicz v Greif (UK) Ltd [2011] 2 AC 229, Lord Brown at para 186.
+The Fairchild enclave exists: the courts in Fairchild and Barker and the Trigger litigation, for obvious reasons of policy, have developed a special rule of causation to do justice to the victims of wrongful exposure to asbestos fibres who have contracted mesothelioma as a result.
+Having done so, the courts must address the consequences of that innovation.
+I am persuaded that this court should develop the law as Lord Mance has proposed for the following six reasons.
+The first three address the extent of the insurers liability to the employer.
+The next two relate to the rights of recourse of the insurer, once it has paid the employer or victim in implement of its obligations under its insurance policy.
+The final reason relates to Lord Mances proposal as a whole.
+First, in my view, the finding that the insurer, which has provided liability cover to an employer for only part of the period of the employees exposure, must meet the entirety of the employers liability for the whole period of exposure is consistent with the way the courts have developed the common law in the trilogy of cases.
+In particular, it is consistent with the position of the majority of this court in the Trigger litigation.
+In that case the majority imported into the insurance contract the weak or broad concept of causation, which the House of Lords had adopted in imposing tortious liability on the employer.
+To my mind this is clear from Lord Mances leading judgment in the Trigger litigation (in particular at paras 52 and 57, 64 68, and 72 74) and also in the concurring judgment of Lord Clarke of Stone cum Ebony (at paras 83 85).
+The creation of liability for mesothelioma by virtue of the exposure to the asbestos fibres, which materially increases the risk of that disease, means that the mesothelioma is caused in this broad sense in each and every period of such exposure, as Lord Mance argues in this appeal.
+As a result, the insurer, which provided liability insurance for a limited period, is exposed to the whole of the employees claim if there was wrongful exposure in that period.
+Secondly, while this imposes a heavy burden on the insurer which the employer selects to claim its indemnity, it is a result for which the appellants and interveners have argued in this appeal.
+It appears to be a result that the London insurance market is prepared to live with.
+It is striking that the insurance industry in this appeal has shown no enthusiasm for the elegant and less complex idea of construing the insurance contract to restrict the insurers liability to a proportionate part of the loss.
+Thirdly, it is consistent with the policy of the United Kingdom Parliament that the employee victim should be able to obtain damages for his loss in a straightforward way.
+This policy of protecting the employee victim is clear at a general level from the enactment of the Employers Liability (Compulsory Insurance) Act 1969.
+It is clear, more specifically, in Parliaments enactment of (i) section 3 of the Compensation Act 2006 to reverse the decision of the House of Lords in Barker and more recently (ii) the Mesothelioma Act 2014 to establish an insurance industry fund to deal with the contingency that a victim is unable to bring an action for damages against an employer or a relevant liability insurer.
+It is also consistent with the expansion of the Financial Services Compensation Scheme by the Compensation Act 2006 (Contribution for Mesothelioma Claims) Regulations 2006 (SI 2006/3259).
+Confining the insurers liability to a time related proportion of the employers liability would not be in line with this policy of the legislature and would probably engender further legislation.
+While Parliaments role of legislating in the public interest differs from the role of judges in developing the common law, it is legitimate for the courts to consider whether their initiatives are in harmony with legislative policy expressed in statutes: Johnson v Unisys Ltd [2003] 1 AC 518, para 37 per Lord Hoffmann.
+I turn to Lord Mances proposed innovations to address the serious anomalies, which he and Lord Sumption have identified, if the insurer in one insurance period were to bear 100% liability without any recourse against those responsible during other insurance periods.
+They are: (a) the broad equitable extension of the right of contribution between insurers and (b) a right of recoupment against the employer in respect of years in which it was not insured or can identify no insurer against which contribution can be claimed.
+Thus, fourthly, if, as I consider, it is correct that the majoritys decision in the Trigger litigation points towards the insurers 100% liability (para 104 above), the interpretation of the insurance contract as creating a pro rata liability is not an option and the anomalies must be addressed in some other way.
+Fifthly, I am not as concerned as Lord Neuberger and Lord Reed are about the danger of infecting other areas of the common law with uncertainty.
+The court is crafting a solution for the problems that stem from the alteration of the rules of causation and the solution applies only to cases to which the altered rules of causation apply.
+In other words the special rules apply only to cases within the Fairchild enclave.
+The House of Lords in Gregg v Scott [2005] 2 AC 176 has been careful not to allow the relaxation of the established rules of causation more widely by applying a weak rule of causation outside the Fairchild enclave.
+The courts will have to police the boundaries of the enclave.
+So long as (a) the rights of recourse against other insurers and the insured employer are recognised for what they are, namely as a means of avoiding anomalies as a result of the special rules of causation and (b) those special rules are confined to the circumstances which Fairchild addresses, there is no reason why the boundaries of the Fairchild enclave should not be preserved.
+I recognise that those boundaries are not coterminous with liability for mesothelioma and that the precise boundaries of the Fairchild principle, like those of the earlier case of McGhee v National Coal Board [1973] 1 WLR 1, may have to be worked out in other cases viz Novartis Grimsby Ltd v Cookson [2007] EWCA Civ 1261.
+But it is sufficient, in my view, that the insurers rights of recourse are available only within the Fairchild enclave.
+Finally, the practical solution which Lord Mance proffers appears to be consistent with the way in which the London insurance market has operated in handling mesothelioma claims.
+That may suggest that the solution will not give rise to major practical difficulties.
+This is not a view which I have come to without hesitation because I see the strength of the arguments (a) that the courts should develop the common law in a principled way, (b) that in the context of an insurance contract the correct tools to give effect to the parties intentions are construction of the contractual words or the recognition of an implied term, and (c) that the protection of the employee victims entitlement to recover damages is a matter for Parliament.
+In short, having dug a hole, the courts should not keep digging.
+But the majority judgment in the Trigger litigation, which is the first of the six reasons set out above, appears to preclude the construction of the insurance contract which the minority favour.
+That consideration and the other five reasons persuade me that Lord Mances approach is the best available means of avoiding the injustice which the insurer would otherwise suffer.
+LORD SUMPTION: (with whom Lord Neuberger and Lord Reed agree)
+I agree that this appeal should be allowed, but I regret that I cannot agree with the reasons given by the majority, which seem to me to be contrary to a number of basic principles of the law of contract and to be productive of uncertainty and injustice.
+Suppose that an insolvent employer had tortiously exposed his employee to asbestos for, say, 30 years before going out of business.
+The employer had failed to insure his liabilities at all for years one to 20.
+Insurer A insured his liability on an occurrence basis in year 21.
+Insurer B insured his liabilities under successive annual policies for years 22 to 30, but insurer B is insolvent.
+The majority would hold that, in a case governed by the 2006 Act, insurer A is liable for the entire loss incurred over the 30 years of exposure, although he was only on risk for one, but that he has an equitable right to recoup a proportionate part of that liability from the insolvent estate of insurer B in respect of the nine years when insurer B was on risk, and from the insolvent estate of the employer in respect of the 20 years when there was no insurance.
+The effect, and as I understand it the object, of this is to make insurer A, who is solvent, answerable, (i) in respect of periods when insurer A was not on risk but insurer B was; and (ii) for the failure of the employer to insure at all in the first 20 years.
+In my opinion, the correct result in this situation is that insurer A is liable for a proportionate part of the loss in respect of the one year out of 30 when he was on risk.
+The employee is entitled to recover insurer Bs proportion under the statutory compensation scheme established under section 213 of the Financial Services and Markets Act 2000 for cases of insurer insolvency.
+In respect of the 20 years when there was no insurance, he is entitled subject to the statutory conditions of eligibility to recover under the statutory compensation scheme established under the Mesothelioma Act 2014 for cases where there is no insurance.
+The effect of the majoritys view is simply to transfer risk from the statutory compensation schemes which were created to assume that risk, to an arbitrarily selected solvent insurer who has not agreed to do so.
+The liabilities of an insurer are wholly contractual.
+The answer to the questions now before the court necessarily depend on the construction of the contract and on nothing else.
+Under an annual policy of insurance written on an occurrence basis, the insurers liability is limited to occurrences caused during the contractual term.
+Where the relevant occurrence has been caused at an indeterminate time during the period of exposure, there are in my view only two possible meanings that can be given to the contract.
+One is that the insurer is not liable at all.
+That possibility was rejected by this court in Durham v BAI Runoff Ltd. (In re Employers Liability Policy Trigger Litigation [2011] 1 All ER 605.) The other is that each insurer must severally answer for a rateable part of the employers liability, corresponding to the proportion which his time on risk bears to the period of exposure.
+No insurer can be liable in respect of other periods when he was not on risk or there was no insurance in place at all.
+That appears to me to be the correct answer to the problem which has arisen on this appeal.
+The suggestion that an insurer who was on risk for only part of the period of exposure, however brief, can be liable as if he had been on risk for the entire period, is contrary to the express terms of the contract and to the nature of annual insurance.
+The suggestion that some doctrine of law can be devised which imposes on an insurer in one year the risk that insurers of other years may become insolvent or that in other years the employer may fail to insure at all, is both unprincipled and unjust.
+The suggestion that equity can partially adjust the result of this injustice by requiring the insured to repay to the insurer part of the insurance moneys which the latter was contractually obliged to pay him, is contrary to basic principles of law.
+It is the proper function of this court to review those principles.
+But the very immensity of this power requires it to act within a framework of legal principle.
+The court identifies general principles of law and applies them to the case in hand.
+If the facts of that case disclose some generally unsatisfactory feature of the law as hitherto understood, it may modify it.
+To devise a special rule for one industrial disease and impose it retrospectively on a policy that covers all industrial accidents and diseases, so as to alter what all members of this court acknowledge to be the basis of the parties agreement, seems to me to be an extremely undesirable course to adopt.
+It may fairly be said, and indeed is said by the majority, that this court had already, in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 created a special rule for mesothelioma which does not conform to the ordinary principles on which the common law acts.
+It has done this in the interests of avoiding a serious injustice.
+Therefore, the argument continues, it is incumbent upon us now to develop what is called the Fairchild enclave by devising ancillary rules which appear to do justice to cases within the enclave, even if they are also out of line with the ordinary principles of law.
+The difficulty about this approach is that a measure of legal coherence seems desirable even within the Fairchild enclave.
+The contractual analysis has the considerable advantage that it draws on a substantial body of existing legal principle, which can be expected to supply answers to unforeseen issues as they arise.
+The alternative is for the law to move from each one off expedient to the next.
+This can only generate knock on consequences which we are not in a position to predict or take into account.
+If there were no other way to achieve justice, these consequences should no doubt be borne.
+But it is quite unnecessary to do so in this case.
+In the first place, the incidents of liability in tort are the creation of rules of common law, whereas the extent of a contractual liability depends on the intentions of the parties.
+The scope for judicial inventiveness is therefore necessarily more limited in the latter context than in the former.
+Secondly, it goes without saying that insurers are as much entitled to justice as mesothelioma victims.
+Third, the protection of victims against the insolvency of some out of a number of employers liability insurers or the failure of an employer to insure at all in some out of a number of years of exposure, is properly a matter for statute.
+It has in fact been dealt with, to the extent that Parliament considers appropriate, by the creation of statutory compensation schemes.
+It is difficult in those circumstances to discern what social imperative can require us to depart from ordinary principles of law.
+Mesothelioma
+Between the end of the nineteenth century and the 1970s asbestos was commonly used for a wide variety of purposes, notably for sound and heat insulation in the building trades and in the manufacture of electrical and other appliances.
+It has been known for more than 80 years that exposure to high levels of asbestos is injurious to health, and in the United Kingdom regulations have sought to limit levels of exposure since 1931.
+Mesothelioma is a malignant tumour whose association with asbestos exposure was identified in the 1960s.
+It is usually caused by asbestos particles inhaled in the course of occupational exposure to the mineral, although occasionally by environmental asbestos.
+It is a breach of an employers duty to allow its employees to be exposed to significant levels of asbestos without taking reasonable steps to protect them from inhaling it.
+Mesothelioma has a number of distinctive characteristics.
+A single exposure to asbestos particles may be enough to cause the condition to develop but will not necessarily do so.
+The intensity of exposure depends, among other things, on the dose and fibre type.
+The greater the intensity and duration of exposure, the higher the risk that mesothelioma will develop.
+But once contracted the disease is not progressive with exposure: subsequent further exposure will not aggravate it.
+As Rix LJ put it in the Court of Appeal in the Trigger litigation [2011] 1 All ER 605, at para 51, summarising the findings of the trial judge: once the mesothelioma tumour is present and assured of growth (ie has passed the stage where a malignant mutation may die off), further asbestos exposure and indeed further asbestos fibres in the body can make no difference and are not causative.
+These features differentiate mesothelioma from other industrial diseases and from long term sources of damage such as the industrial pollution of land which are progressively aggravated by successive occurrences to a degree which is in principle capable of being measured or estimated.
+They present particular problems of attributing responsibility given that the disease is undetectable until shortly before death, and once initiated may be latent for many years (30 to 40 years is common) before the symptoms appear.
+If a person has been exposed to high levels of asbestos over a long period, it is impossible in the current state of medical science to determine at what stage he inhaled the fibres which ultimately led to his developing mesothelioma.
+This means that if he was exposed to asbestos by successive employers during that period, each period of employment will have materially increased the risk of his contracting the disease without necessarily causing it.
+Employers liability insurance has been compulsory in the United Kingdom since the Employers Liability (Compulsory Insurance) Act 1969, which came into force on 1 January 1972.
+Section 1(1) of that Act requires employers to be insured against liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment in Great Britain in that business.
+It is normal for employers to be insured on an occurrence (as opposed to a claims made) basis under successive annual policies which may be underwritten by different insurers.
+Under most of the standard wordings in common use, an industrial disease will be treated as having occurred when it was caused or initiated, even though it only developed or manifested itself later.
+I shall return to this point when I come to deal more fully with the Trigger litigation.
+It follows from the characteristics of mesothelioma which I have described that three potential problems can affect the availability of insurance cover.
+The first is that where an employee was exposed to asbestos by different employers at different times, it will be impossible to determine which employers wrong caused the disease to develop and therefore which employers insurers should respond.
+The second is that even where only one employer was involved, that employer may have been insured for only part of the period of exposure, or may have been insured in different years by different insurers.
+It will then be impossible to determine whether at the time when the disease occurred the employer was insured or, if he was, under which policy and by which insurer.
+The third is that one or more of the insurers potentially liable may have become insolvent or have been wound up in the course of corporate restructuring or have ceased to carry on this class of business and simply disappeared.
+The present appeal is primarily concerned with the second of these problems, although it also has implications for the third.
+Since at least the 1990s the insurance industry in the United Kingdom has evolved voluntary procedures for dealing with these problems in the context of claims for mesothelioma.
+Since these procedures have had a significant influence on the positions taken by the parties to this appeal, and affect the commercial implications of the various possible outcomes, it is necessary to say something about them.
+The arrangements appear to have varied in detail, but since 2003 have been embodied in guidelines issued by the Association of British Insurers, a body predominantly comprising insurers but with some representation of non insurance interests.
+The 2003 Guidelines, which were issued in the aftermath of the decision in Fairchild, recommend a scheme of settlement which is described as equitable and pragmatic.
+Its essential features are: (i) that the victim is to be paid in full by the Lead Insurer; (ii) that where more than one employer is involved liability is notionally apportioned between them pro rata to their respective periods of culpable exposure, without regard to any difference in the intensity of exposure; (iii) that each employers proportion of the claim is then further apportioned between that employer and its insurer or insurers according to the proportion which their time on risk bears to the whole period of culpable exposure by that employer; and (iv) that periods when the employer was self insured, uninsured or unable to trace insurance are apportioned to the employer if it is solvent, and otherwise to the relevant employers insurers (irrespective of their solvency).
+The effect of point (iv) is that where the employer was insured but the insurer is insolvent, the insolvent insurers pro rata share is paid by the Financial Services Compensation Scheme established under section 213 of the Financial Services and Markets Act 2000, which is party to the scheme.
+According to Mr Allen, an experienced claims manager whose witness statement was put in by the Association of British Insurers, the main objectives of the industry scheme are to promote speed of settlement, to prevent the spiking of claims from an uninsured year into an insured one, or from a year with a higher deductible into another with a lower one, and to avoid time consuming and costly disputes about issues such as the dose, intensity or fibre type of a claimants exposure.
+His evidence is that it proved impossible in practice to persuade insurers to pay the employee up front and then sort out the distribution of the cost among other participants later.
+Insurers preferred to wait until the FSMA compensation scheme was committed.
+Subject to that, the industry scheme has been accepted by the United Kingdom industry and has not in practice been challenged by reinsurers, although they would be likely to do so if they thought that claims were being artificially spiked into a year when their reinsured was on risk.
+There is some dispute about how far the industry scheme has been accepted by insureds, as Mr Allen contends, but it is neither necessary nor possible to resolve that question.
+The facts
+International Energy Group Ltd (IEG), is the successor to the rights and liabilities of Guernsey Gas Light Company Ltd, which employed Mr Alan Carr between 1961 and 1988.
+Mr Carr claimed to have been negligently exposed by his employer to asbestos particles throughout that period, and to have contracted mesothelioma in consequence.
+The obligations of the employer to Mr Carr were governed by Guernsey law.
+It is agreed for the purpose of these proceedings that the common law of Guernsey is the same as the common law of England.
+The statute law is, however, different.
+One of the differences is that employers liability insurance was not compulsory in Guernsey until the Employers Liability (Compulsory Insurance) (Guernsey) Law 1993, which came into force on 1 March 1994.
+Nonetheless, Guernsey Gas was insured for at least part of the period during which it employed Mr Carr.
+It was insured between 31 December 1978 and 30 December 1980 by Excess Insurance Co Ltd, and between 31 December 1982 and 31 December 1988 by Midland Assurance Ltd. Accordingly Excess was on risk for two and Midland for six of the 27 years during which Guernsey Gas employed Mr Carr.
+For the remaining 19 years, the employer was either uninsured or else insured under a policy all trace of which has been lost so that it is for practical purposes unable to claim under it.
+IEG is, however, solvent and capable of meeting the claim from its own resources.
+Zurich Insurance plc, are a major insurer of employers liability in the British Isles who acquired Midland and succeeded to its liabilities.
+In September 2008, shortly before his death, Mr Carr began proceedings against the employer in the Royal Court in Guernsey in support of a claim for damages on the footing that it had exposed him to asbestos without adequate protection.
+The proceedings were settled in December 2008 for 250,000 in respect of damages and interest and 15,300 in respect of Mr Carrs costs.
+IEG also incurred defence costs of 13,151.60.
+The company settled these sums in full and claimed them from Zurich.
+Zurich offered to settle the companys claim in accordance with the industry guidelines.
+Since IEG was solvent, it offered a rateable proportion of the claim, reflecting the ratio of its time on risk to the total period of Mr Carrs employment by Guernsey Gas.
+IEG began the present proceedings against Zurich in support of their claim for the entire amount.
+It was agreed that the dispute should be resolved on the basis of agreed facts.
+These were, in summary, (i) that Mr Carr was exposed to asbestos with the same frequency and intensity throughout the 27 years of his employment by the employer, (ii) that that exposure materially increased the risk that he would contract mesothelioma, and (iii) that by reason of the exposure Guernsey Gas was in breach of its duty to him.
+Before examining the basis of IEGs claims and Zurichs response, it is necessary to deal with the complex legal background against which the rival contentions were advanced.
+The position as between employer and employee: Fairchild
+In Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32, the House of Lords held that where one of a number of successive employers must have caused the development of mesothelioma by tortiously exposing the employee to the same noxious agent, the ordinary rules for proving causation fell to be varied as a matter of policy so as to ensure that an irrefutable claim against at least one of an ascertained group of defendants should not fail for want of any scientific possibility of identifying him.
+The ordinary rule, as the House agreed in Fairchild, was that the employee must prove that the damage was caused by the particular defendant sought to be held liable.
+As Lord Bingham said of the ordinary rule, at para 9: The issue in these appeals does not concern the general validity and applicability of that requirement, which is not in question, but is whether in special circumstances such as those in these cases there should be any variation or relaxation of it.
+He regarded the issue before the House as an obvious and inescapable clash of policy considerations (at para 33).
+He continued: The crux of cases such as the present, if the appellants' argument is upheld, is that an employer may be held liable for damage he has not caused.
+The risk is the greater where all the employers potentially liable are not before the court.
+This is so on the facts of each of the three appeals before the House, and is always likely to be so given the long latency of this condition and the likelihood that some employers potentially liable will have gone out of business or disappeared during that period.
+It can properly be said to be unjust to impose liability on a party who has not been shown, even on a balance of probabilities, to have caused the damage complained of.
+On the other hand, there is a strong policy argument in favour of compensating those who have suffered grave harm, at the expense of their employers who owed them a duty to protect them against that very harm and failed to do so, when the harm can only have been caused by breach of that duty and when science does not permit the victim accurately to attribute, as between several employers, the precise responsibility for the harm he has suffered.
+I am of opinion that such injustice as may be involved in imposing liability on a duty breaking employer in these circumstances is heavily outweighed by the injustice of denying redress to a victim.
+Were the law otherwise, an employer exposing his employee to asbestos dust could obtain complete immunity against mesothelioma (but not asbestosis) claims by employing only those who had previously been exposed to excessive quantities of asbestos dust.
+Such a result would reflect no credit on the law.
+It seems to me, as it did to Lord Wilberforce in McGhee [1973] 1 WLR 1, 7 that: the employers should be liable for an injury squarely within the risk which they created and that they, not the pursuer, should suffer the consequence of the impossibility, foreseeably inherent in the nature of his injury, of segregating the precise consequence of their default.
+Lord Bingham concluded that all of the successive employers were liable.
+Lord Nicholls of Birkenhead, expressing the same view, put the matter as follows at paras 41 42: 41 The present appeals are another example of such circumstances, where good policy reasons exist for departing from the usual threshold but for test of causal connection.
+Inhalation of asbestos dust carries a risk of mesothelioma.
+That is one of the very risks from which an employer's duty of care is intended to protect employees.
+Tragically, each claimant acquired this fatal disease from wrongful exposure to asbestos dust in the course of his employment.
+A former employee's inability to identify which particular period of wrongful exposure brought about the onset of his disease ought not, in all justice, to preclude recovery of compensation. 42 So long as it was not insignificant, each employer's wrongful exposure of its employee to asbestos dust, and, hence, to the risk of contracting mesothelioma, should be regarded by the law as a sufficient degree of causal connection.
+This is sufficient to justify requiring the employer to assume responsibility for causing or materially contributing to the onset of the mesothelioma when, in the present state of medical knowledge, no more exact causal connection is ever capable of being established.
+Given the present state of medical science, this outcome may cast responsibility on a defendant whose exposure of a claimant to the risk of contracting the disease had in fact no causative effect.
+But the unattractiveness of casting the net of responsibility as widely as this is far outweighed by the unattractiveness of the alternative outcome.
+Lord Hoffmann, at para 63, said: which rule would be more in accordance with justice and the policy of common law and statute to protect employees against the risk of contracting asbestos related diseases? One which makes an employer in breach of his duty liable for the employee's injury because he created a significant risk to his health, despite the fact that the physical cause of the injury may have been created by someone else? Or a rule which means that unless he was subjected to risk by the breach of duty of a single employer, the employee can never have a remedy? My Lords, as between the employer in breach of duty and the employee who has lost his life in consequence of a period of exposure to risk to which that employer has contributed, I think it would be both inconsistent with the policy of the law imposing the duty and morally wrong for your Lordships to impose causal requirements which exclude liability.
+As Lord Hoffmann pointed out, more clearly perhaps than any other member of the committee, it was essential that each of the successive employers should have wrongfully exposed the employee to asbestos particles and thereby materially increased the risk of his contracting the disease.
+The same policy would not therefore necessarily have justified a finding that all manufacturers of a drug causing injuries to patients were fixed with liability, simply because it was impossible to prove which manufacturers product had been administered to the particular claimant.
+This was because the existence of the additional manufacturers did not materially increase the risk of injury: see para 74.
+Lord Rodger of Earlsferry made the same point, at para 170: part of the underlying rationale of the principle is that the defendant's wrongdoing has materially increased the risk that the claimant will suffer injury.
+It is therefore essential not just that the defendant's conduct created a material risk of injury to a class of persons but that it actually created a material risk of injury to the claimant himself. the claimant must prove that his injury was caused by the eventuation of the kind of risk created by the defendant's wrongdoing By contrast, the principle does not apply where the claimant has merely proved that his injury could have been caused by a number of different events, only one of which is the eventuation of the risk created by the defendant's wrongful act or omission.
+It should be observed that although the House was concerned with mesothelioma, it recognised that the legal issue was not necessarily peculiar to mesothelioma.
+It could arise in cases concerning other injuries or diseases or other sources of danger, provided that the damage was inflicted by the same destructive agent.
+The question, as they pointed out, had arisen in other jurisdictions whose law was reviewed by the House, in the context of groups of hunters, party goers, footpads and the like negligently causing injury, each member of which had materially increased the risk of the injury which occurred without its being possible to identify whose negligence had actually caused it: see Lord Bingham at paras 25 29, Lord Hoffmann at paras 73 74, and Lord Rodger at paras 158 160.
+In McGhee v National Coal Board [1973] 1 WLR 1, which was held to have been founded on the same principle as Fairchild, the problem had arisen from the impossibility of determining the precise causal mechanism by which the claimant employee had contracted dermatitis, when some hypotheses involved a breach of duty while others did not.
+More generally, as Lord Bingham observed at para 34, it would be unrealistic to suppose that the principle here affirmed will not over time be the subject of incremental and analogical development.
+The decision in Fairchild has not given entire satisfaction to all of its authors.
+Lord Hoffmann has described it as a revolutionary judgment.
+The ordinary function of the House of Lords in changing the common law is to modify some principle which had proved unsatisfactory.
+In Fairchild, the House did not modify or even criticise the general principle that the claimant had to demonstrate that the defendants negligence had on a balance of probabilities caused the injury.
+Instead, they created a special exception to it which could not be justified by reference to any general principle and depended on a distinction which had no rational factual or legal justification: Hoffmann, Constitutionalism and Private Law (Cambridge Freshfields Law Lecture, 28 January 2015).
+Be that as it may, the decision in Fairchild is the starting point for any analysis of the legal issues arising between successive employers, or between employers and their insurers.
+In Fairchild itself, the House of Lords left those issues unresolved.
+Subsequent decisions of the House of Lords and Supreme Court have cruelly exposed the problem of dealing with complex and interrelated issues piecemeal.
+In order to accommodate the implications of earlier decisions for issues which they did not directly address, it has more than once proved necessary to subject their reasoning to some reanalysis.
+Apportionment: Barker
+In Fairchild, the House of Lords held that each of the successive employers was liable, but expressly declined to decide how, if at all, the liability was to be apportioned between them: see Lord Bingham at para 34, Lord Hoffmann at para 74, and Lord Rodger at para 125.
+That question did, however, arise in Barker v Corus UK Ltd [2006] 2 AC 572.
+The facts of Barker were that each of the claimants had been exposed to asbestos particles by successive employers or else by employers in one period and the claimant himself in another.
+The House of Lords held that the Fairchild principle applied in these cases also.
+Against that background, the question which arose was stated by Lord Hoffmann, at para 25, as follows: whether under the Fairchild exception a defendant is liable, jointly and severally with any other defendants, for all the damage consequent upon the contraction of mesothelioma by the claimant or whether he is liable only for an aliquot share, apportioned according to the share of the risk created by his breach of duty.
+The ordinary rule in the law of tort is that, where a number of defendants separately contribute to the same indivisible damage, each of them is jointly and severally liable for the whole.
+For want of a better word, this can be called the Dingle principle after Dingle v Associated Newspapers Ltd [1961] 2 QB 162, in which it received its classic formulation at the hands of Devlin LJ at paras 188 189: Where injury has been done to the plaintiff and the injury is indivisible, any tortfeasor whose act has been a proximate cause of the injury must compensate for the whole of it.
+As between the plaintiff and the defendant it is immaterial that there are others whose acts also have been a cause of the injury and it does not matter whether those others have or have not a good defence.
+These factors would be relevant in a claim between tortfeasors for contribution, but the plaintiff is not concerned with that; he can obtain judgment for total compensation from anyone whose act has been a cause of his injury.
+If there are more than one of such persons, it is immaterial to the plaintiff whether they are joint tortfeasors or not.
+If four men, acting severally and not in concert, strike the plaintiff one after another and as a result of his injuries he suffers shock and is detained in hospital and loses a month's wages, each wrongdoer is liable to compensate for the whole loss of earnings.
+If there were four distinct physical injuries, each man would be liable only for the consequences peculiar to the injury he inflicted, but in the example I have given the loss of earnings is one injury caused in part by all four defendants.
+It is essential for this purpose that the loss should be one and indivisible; whether it is so or not is a matter of fact and not a matter of law.
+Contracting mesothelioma is indivisible damage.
+If it had been proved that all of the successors had contributed to causing the employees mesothelioma, they would have been jointly and severally liable for the whole damage on the Dingle principle.
+The question in Barker was whether the same principle applied when all that could be proved was that each employer had contributed to the risk without contributing to the disease.
+The trial judge and the Court of Appeal in Barker held that it did, and that each employer was jointly and severally liable.
+The House of Lords overruled them.
+It held by a majority (Lord Rodger dissenting) that liability was several, and fell to be apportioned according to the tortfeasors relative contribution to the risk, measured by the duration and intensity of the exposure for which he was responsible.
+The ratio of the decision may be taken from the speech of Lord Hoffmann, with whom Lord Scott of Foscote, Lord Walker of Gestingthorpe and Baroness Hale of Richmond agreed.
+Lord Hoffmann held that the Dingle principle could apply only if each employer had contributed to the employee contracting the disease or was deemed to have done so.
+But it could not be proved that they actually had done so, and Lord Hoffmann denied that Fairchild had introduced a rule that they were deemed to have done so by creating a material risk of contracting mesothelioma.
+That, he thought, had been the view of Lord Rodger and Lord Hutton in Fairchild.
+But he considered that the speeches of the majority were authority for the proposition that the creation of a material risk of mesothelioma was sufficient for liability: see paras 31 34.
+From this he concluded, at para 35: Consistency of approach would suggest that if the basis of liability is the wrongful creation of a risk or chance of causing the disease, the damage which the defendant should be regarded as having caused is the creation of such a risk or chance.
+If that is the right way to characterise the damage, then it does not matter that the disease as such would be indivisible damage.
+Chances are infinitely divisible and different people can be separately responsible to a greater or lesser degree for the chances of an event happening, in the way that a person who buys a whole book of tickets in a raffle has a separate and larger chance of winning the prize than a person who has bought a single ticket.
+He went on at para 43 to summarise his reasons for regarding the apportionment of liability according to the time and intensity of the wrongful exposure for which each successive employer was responsible as representing the fair outcome: In my opinion, the attribution of liability according to the relative degree of contribution to the chance of the disease being contracted would smooth the roughness of the justice which a rule of joint and several liability creates.
+The defendant was a wrongdoer, it is true, and should not be allowed to escape liability altogether, but he should not be liable for more than the damage which he caused and, since this is a case in which science can deal only in probabilities, the law should accept that position and attribute liability according to probabilities.
+The justification for the joint and several liability rule is that if you caused harm, there is no reason why your liability should be reduced because someone else also caused the same harm.
+But when liability is exceptionally imposed because you may have caused harm, the same considerations do not apply and fairness suggests that if more than one person may have been responsible, liability should be divided according to the probability that one or other caused the harm.
+And at para 48: Although the Fairchild exception treats the risk of contracting mesothelioma as the damage, it applies only when the disease has actually been contracted.
+Mr Stuart Smith, who appeared for Corus, was reluctant to characterise the claim as being for causing a risk of the disease because he did not want to suggest that someone could sue for being exposed to a risk which had not materialised.
+But in cases which fall within the Fairchild exception, that possibility is precluded by the terms of the exception.
+It applies only when the claimant has contracted the disease against which he should have been protected.
+And in cases outside the exception, as in Gregg v Scott [2005] 2 AC 176, a risk of damage or loss of a chance is not damage upon which an action can be founded.
+But when the damage is apportioned among the persons responsible for the exposures to asbestos which created the risk, it is known that those exposures were together sufficient to cause the disease.
+The damages which would have been awarded against a defendant who had actually caused the disease must be apportioned to the defendants according to their contributions to the risk.
+In the course of his analysis, at para 46, Lord Hoffmann referred to the implications of the alternative approach, which would have imposed joint and several liability: The effect of the Civil Liability (Contribution) Act 1978 is that if each defendant is treated as having caused the mesothelioma as an indivisible injury and pays the damages in full, he will be able to recover contribution to the extent that he has paid more than his fair share of the responsibility from such other tortfeasors as are traceable and solvent.
+But he will in effect be a guarantor of the liability of those who are not traceable or solvent and, as time passes, the number of these will grow larger.
+Experience in the United States, where, for reasons which I need not examine, the DES rule of several liability has not been applied to indivisible injuries caused by asbestos, suggests that liability will progressively be imposed upon parties who may have had a very small share in exposing the claimant to risk but still happen to be traceable and solvent or insured: see Jane Stapleton, Two causal fictions at the heart of US asbestos doctrine 122 LQR 189.
+That would, as I have said, not be unfair in cases in which they did actually cause the injury.
+It is however unfair in cases in which there is merely a relatively small chance that they did so.
+Lord Scott, at para 61, put the same points in this way: If the Fairchild principle were based upon the fiction that each Fairchild defendant had actually caused the eventual outcome, the analogy with tortfeasors each of whom had contributed to an indivisible outcome would be very close.
+But Fairchild liability is not based on that fiction.
+It is based on the fact that each negligent defendant has wrongfully subjected the victim to a period of exposure to an injurious agent and has thereby, during that period, subjected the victim to a material risk that he or she will contract the disease associated with that agent.
+Each successive period of exposure has subjected the victim to a further degree of risk.
+If, in the event, the victim does not contract the disease, no claim can be made for the trauma of being subjected to the risk: see Gregg v Scott [2005] 2 AC 176.
+But if the victim does contract the disease the risk has materialised.
+If the degree of risk associated with each period of exposure, whether under successive employers or during self employment or while engaged in domestic tasks, were expressed in percentage terms, the sum of the percentages, once the disease had been contracted, would total 100%.
+But the extent of the risk for which each negligent employer was responsible and on the basis of which that employer was to be held liable would be independent of the extent of the risk attributable to the periods of exposure for which others were responsible.
+The relationship between the various negligent employers seems to me much more akin to the relationship between tortfeasors each of whom has, independently of the others, caused an identifiable part of the damage of which the victim complains.
+The joint and several liability of tortfeasors is based upon a finding that the breach of duty of each has been a cause of the indivisible damage for which redress is sought.
+No such finding can be made in a Fairchild type of case and the logic of imposing joint and several liability on Fairchild defendants is, in my opinion, absent.
+Moreover, Fairchild constitutes an exception, perhaps an anomalous one, to the causation principles of tortious liability.
+It should not, therefore, be found to be surprising if consequential adjustments to other principles of tortious liability become necessary.
+Lord Walker, at para 113, drew attention to the fact that the Fairchild principle had involved a departure from ordinary rules of law, which called for the application of special principles of apportionment unique to the situation in which it applied: The solution to the problem is in my opinion more radical, in line with the radical departure which this House has already made in Fairchild.
+That case was decided by the majority, as I have already noted, not on the fictional basis that the defendants should be treated as having caused the claimant's (or deceased's) damage, but on the factual basis that they had wrongfully exposed him to the risk of damage.
+The damage was indivisible, but the risk was divisible a matter of statistics.
+In line with that new principle established or affirmed in Fairchild, and as a solution which does justice (so far as possible) both to the generality of claimants and to the generality of defendants, limited liability proportionate to risk is the better course for the law to take.
+Baroness Hale made a similar point in her own speech, at paras 122 and 126 127: But it does not necessarily follow from the fact that the damage is a single indivisible injury that each of the persons who may have caused that injury should be liable to pay for all of its consequences.
+The common law rules that lead to liability in solidum for the whole damage have always been closely linked to the common law's approach to causation.
+There is no reason in principle why the former rules should not be modified as the latter approach is courageously developed to meet new situations.
+But in the Fairchild situation we have yet another development.
+For the first time in our legal history, persons are made liable for damage even though they may not have caused it at all, simply because they have materially contributed to the risk of causing that damage.
+Mr Stuart Smith does not quarrel with the principle in Fairchild.
+He simply argues that it does not follow from the imposition of liability in such a case that each should be liable for the whole.
+I agree with the majority of your Lordships that indeed it does not follow.
+There is in this situation no magic in the indivisibility of the harm.
+It is not being said that each has caused or materially contributed to the harm.
+It can only be said that each has materially contributed to the risk of harm.
+The harm may be indivisible but the material contribution to the risk can be divided.
+There exists a sensible basis for doing so.
+Is it fair to do so? In common with the majority of your Lordships, I think that it is.
+The speeches of the majority in Barker are not easy to analyse, and perhaps for that reason the analysis of them by Lord Rodger in his dissenting speech has proved influential.
+He attributed to Lord Hoffman and those who agreed with him the opinion that the employer was liable for creating a risk of contracting mesothelioma, and not for the mesothelioma itself.
+I do not think that this is the correct analysis of the majoritys reasoning.
+In his essay in Perspectives in Causation, ed R Goldberg (2011), at p 8, Lord Hoffmann certainly adopted it.
+He suggested that the majority view in Barker had created a special cause of action for the causing of the risk.
+But his words in Barker itself were more circumspect.
+In the passage which I have cited from para 48 of his speech, he certainly suggested that the Fairchild exception treated the creation of the risk as the damage which gave rise to liability.
+But, like Lord Scott and Lord Walker, he emphasised that there was no cause of action for the risk in the absence of the disease.
+And Baroness Hale (at para 120), while agreeing with Lord Hoffmann, had no difficulty in agreeing with Lord Rodger that the damage which is the gist of these actions is the mesothelioma and its physical and financial consequences.
+It is not the risk of contracting mesothelioma.
+In my opinion, the natural reading of the speeches of the majority, read as a whole, is that the Fairchild exception is an exception to the ordinary rules of causation alone.
+It treats a material contribution to the risk as enough to discharge the burden of proving that the breach of duty has caused the disease.
+It followed that by reason of having contributed to the risk the employer was liable for the disease itself.
+Or, as Lord Walker put it at para 109, the Fairchild exception is A rule of law by which exposure to risk of injury is equated with legal responsibility for that injury.
+The real difference between Lord Rodger and the majority was that the majority thought that it was unknowable and irrelevant who had caused the disease to develop.
+They considered that each successive employer should be liable in proportion to the significance of its contribution to the risk because, exceptionally, what had made each of them liable for the disease was its contribution to the risk and not its contribution to the damage.
+Lord Rodger on the other hand thought that each successive employer was deemed to have contributed to the damage and that it was that contribution to the damage which was the source of the liability.
+He therefore thought that each of them incurred the joint and several liability which the Dingle principle imposed on those who severally contribute in different degrees to the same damage.
+Underlying his reasoning was an expressed reluctance to adopt an analysis of Fairchild which made the cases in which it applied into an enclave subject to rules quite different to those which applied generally in the law of personal injuries: see para 85.
+The majority on the other hand considered that Fairchild had already created the enclave and that the task in hand was to devise a basis of liability consistent with its peculiarities.
+Within three months of the decision in Barker, its effect was reversed by section 3 of the Compensation Act 2006.
+Section 3 applied in any case where a person (the victim) contracted mesothelioma as a result of exposure to asbestos, and another (the responsible person) was liable in tort for having wrongfully exposed him to asbestos, whether by reason of having materially increased a risk or for any other reason.
+Section 3(2) provided that the responsible person was liable irrespective of whether the victim was also exposed to asbestos on other occasions, either by other tortfeasors or in circumstances where there was no liability in tort.
+Not only was that person liable, but he was jointly and severally liable with any other responsible person.
+The result was to make each responsible person liable for the whole damage, without prejudice (see subsections (3) and (4)) to the right of contribution between them.
+Section 3 applied retrospectively: see section 16(3).
+The position as between the employer and his insurer: Trigger
+Mesothelioma, like other industrial diseases characterised by long periods of latent development, poses particular problems for insurers writing employers liability business on an occurrence basis.
+None of the cases which I have cited was concerned with the impact of the Fairchild exception on coverage under an employers liability insurance.
+That question arose in the Employers Liability Policy Trigger litigation, six cases heard together before the Supreme Court and reported under the title Durham v BAI (Run off) Ltd [2012] 1 WLR 867.
+A number of different policy forms were before the court.
+They all insured the employers liability for personal injury (including disease) contracted or sustained during the period of insurance, generally a year.
+There were two issues.
+The first was whether the trigger for the insurers liability was the exposure of the employee to asbestos (as the employers and the personal representatives of deceased employees contended), or only to the development or manifestation of mesothelioma (as the insurers contended).
+These alternatives were referred to as the causation basis and the manifestation basis respectively.
+It was clear that the policies did not respond if the manifestation basis was correct, for the disease developed or manifested itself long after the relevant policies had expired and generally after the victim had ceased to be employed.
+The second issue was raised in terms not by the parties but by Lord Phillips of Worth Matravers in the course of the hearing.
+It was whether, if the causation basis was correct, the triggering event could be shown in the current limited state of scientific knowledge to have occurred during the policy period.
+If not, it was suggested, the insurer could not be liable at all.
+The leading judgment was delivered by Lord Mance.
+The courts decision on the first issue is summarised at paras 49 51 of his judgment.
+It was held that the policies insured the damage attributable to the actual injury or disease, which was suffered when mesothelioma developed.
+But the triggering event which had to occur within the policy period was the event upon which mesothelioma was sustained (the term used in the Midland policies in the present appeal) or contracted (the term used in some other policies).
+In either case, that happened when it was caused or initiated, even though it only developed or manifested itself subsequently.
+The whole panel was agreed upon this.
+The second issue turned on the effect of Fairchild and Barker on the footing that causation or initiation of the disease was the relevant triggering event.
+This question divided the panel.
+Lord Phillips in his dissenting judgment held that the insurers could be found liable only if the effect of these decisions was that the employer was deemed to have caused the development of the disease by exposing the employee to asbestos particles.
+That analysis of Fairchild had, however, been rejected by the majority in Barker.
+The alternative in his view was to treat Fairchild as creating liability not for the disease but for the contribution to the risk of the disease.
+Since the contribution to the risk was not an insured peril, the insureds and their statutory assignees could succeed against the insurers only if they demonstrated that the disease had in fact been caused or initiated during the policy period, something which the current state of scientific knowledge made it impossible for them to do.
+This view was rejected by the majority.
+Again, the reasons may be taken from the judgment of Lord Mance.
+He agreed that the deemed causation theory had been rejected in Barker.
+He held that the employer was not liable for merely exposing the victim to the risk.
+He was liable for the disease.
+But he was liable for the disease, because his tortious exposure of the victim to the risk was in law enough to establish that he had caused it.
+The issue, as Lord Mance put it at para 66, concerned: the meanings we assign to the concept of causation, first in the context of considering employers liability to their employees and then in considering the scope of employers insurance cover with respect to such liability.
+He summarised the effect on the policy at paras 73 74 as follows: 73.
+In my view, these considerations justify a conclusion that, for the purposes of the insurances, liability for mesothelioma following upon exposure to asbestos created during an insurance period involves a sufficient weak or broad causal link for the disease to be regarded as caused within the insurance period.
+The risk is no more than an element or condition necessary to establish liability for the mesothelioma.
+The reality, reinforced by provisions in the 2006 Act, is that the employer is being held responsible for the mesothelioma. 74.
+For this purpose, the law accepts a weak or broad causal link.
+The link is to exposure which may but cannot be shown on the ordinary balance of probabilities to have played a role in the actual occurrence of the disease.
+But for the purposes of the policies the negligent exposure of an employee to asbestos can properly be described as having a sufficient causal link or being sufficiently causally connected with subsequently arising mesothelioma for the policies to respond.
+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 rule in Fairchild and Barker.
+Viewing the point slightly more broadly, if (as I have concluded) the fundamental focus of the policies is on the employment relationship and activities during the insurance period and on liability arising out of and in course of them, then the liability for mesothelioma imposed by the rule in my opinion fulfils precisely the conditions under which these policies should and do respond.
+In substance, the result was that the same weak test of causation which applied as between the victim and the employer should be applied as between the employer and his liability insurer.
+The parties arguments
+This appeal is not concerned with multiple successive causes of exposure to asbestos, nor is it concerned with multiple successive employers.
+Guernsey Gas, for whose liabilities IEG is responsible, employed Mr Carr throughout the 27 year period when he was tortiously exposed to asbestos.
+IEGs case for recovering in full against the insurers who were on risk for six of those years is as follows.
+The decision of this court in the Trigger appeals established (i) that the policy responds if during the period of insurance something happened which caused the ultimate development of mesothelioma, and (ii) that that causal link is sufficiently demonstrated by proving that during the period of insurance the insured employer wrongfully exposed the employee to the risk of contracting mesothelioma.
+Therefore, it is said, just as an employer is liable if he employed the victim at any time when he was wrongfully exposed to the risk of contracting mesothelioma, so the employers liability insurer is liable if he was on risk at any time when such exposure occurs.
+If by statute the employer must bear the entire loss attributable to the disease by reason of having exposed the employee to asbestos particles at any time that is also the measure of his claim against the insurer.
+Zurich advances two alternative contentions in response to this.
+The first is that as between the victim and his employer Barker remains good law in all cases to which the Compensation Act 2006 does not apply.
+It therefore remains good law in Guernsey, where Mr Carr was employed.
+It follows that the liability of Guernsey Gas is apportionable over the period of exposure, and that the insurer is liable only for a proportionate part of the loss representing that part of the period of exposure during which he was on risk.
+If, contrary to this submission, Barker is no longer good law even in Guernsey, Zurich concedes that it is liable under the policy terms for the whole of Mr Carrs loss.
+On that footing, Zurichs second argument is that they have a right of equitable recoupment against the other insurers pro rata to their respective periods on risk, and against the employer for that proportion of the claim which reflects the time he was uninsured.
+So far as the compensation element of the claim is concerned, the second argument arises only if the first one fails.
+But as far as the claim for defence costs is concerned, the second argument arises anyway, because Zurich accepts that they were contractually liable for the whole of the defence costs.
+This is because the same defence costs would have been incurred whether the employer was liable for the whole loss or only a proportion of it.
+The decisions of Cooke J and the Court of Appeal
+Cooke J accepted Zurichs first argument.
+He held that the insurer was liable only for a rateable proportion reflecting time on risk.
+The alternative claim for recoupment therefore did not arise.
+But if it had arisen, Cooke J would have rejected it.
+The Court of Appeal reversed him on Zurichs primary case.
+They held that Barker was no longer good law after the Compensation Act, and therefore no part of the common law of Guernsey.
+It followed in their view that each successive insurer was liable for the entire loss.
+They considered that no allowance fell to be made for the substantial periods of exposure when it was not on risk, whether that was because other insurers were on risk or because the employer elected to bear the risk itself.
+Both Toulson LJ and Aikens LJ, who both delivered reasoned judgments, considered that the issue was concluded by Trigger, in particular the statement of principle in the judgment of Lord Mance at para 73.
+Both of them thought that once it was accepted that each insurers liability was triggered by any period of exposure during which it was on risk, it followed as a matter of course that each insurer was liable for the entire loss.
+Citing the decision of the United States Court of Appeals for the District of Columbia in Keene Corporation v Insurance Company of North America (1981) 667 F 2d 1034, Toulson LJ expressed at para 42 his agreement with the proposition that: once it is accepted that exposure during any policy period met the causal requirement for the employer's liability to the victim, for which the employer was potentially entitled to indemnity from the insurer under the terms of the relevant policies, to withhold part of that indemnity from the employer on account of its conduct in other years would be to deprive the employer of insurance coverage for which it paid.
+Aikens LJ agreed, adding at paras 53 54 what is perhaps implicit in Toulson LJs judgment and may stand as the essence of the courts reasoning: If an employer is liable to his employee for his employee's mesothelioma following upon a tortious exposure to asbestos created during an insurance period, then, for the purposes of the insuring clause in the employers liability policy, the disease is caused within the insurance period.
+This is because it is sufficient that there is what Lord Mance calls (following Hart & Honors use of the phrase) a weak or broad causal link, in this case between the exposure to the asbestos during the insurance period and the employee's eventual contraction of the mesothelioma.
+Once that causal requirement is fulfilled, then the employer will have proved that the mesothelioma (the disease) was caused during any period of insurance.
+It follows from the policy wording that the insurer is then liable to indemnify IEG for all sums for which the Insured shall be liable in respect of any claim for damages for . such disease (my emphasis).
+In other words, Zurich will be liable to indemnify IEG for the whole of the damages paid out by IEG in respect of Mr Carrs claim for damages for contracting mesothelioma, not just a proportion worked out by reference to the period during which IEG was covered by policies for which Zurich is responsible.
+Like Cooke J, the Court of Appeal rejected the recoupment argument.
+The decision of the Court of Appeal created consternation among the interests represented by the Association of British Insurers.
+This was mainly because the decision recognised a right in an insured employer to recover in full from any insurer on risk at any time during the period of tortious exposure.
+In practise this meant that employers could be expected to pick off the easiest target.
+This undermined the industry settlement scheme, which: (i) apportioned the liability by time on risk among all insurers on risk during the period of exposure; (ii) apportioned uninsured periods to the employer if he was solvent; and (iii) left the employer to claim against an insolvent insurer under the compensation scheme established under section 213 of the Financial Services and Markets Act 2000.
+These consequences of the decision would be aggravated if there was no right of contribution between insurers.
+The result, the Association of British Insurers submitted, would be to encourage insurers to be more vigorous in defending claims, to delay settlements and potentially to cause difficulties with reinsurers.
+In addition, the Court of Appeals reliance on the all sums wording of the insuring clause opened up the prospect that insurers might be held liable in full even in the case of divisible diseases where the contribution of the tort to the actual development of the disease was more readily assignable to distinct policy periods.
+The issues in the Supreme Court
+In this court, the parties arguments were the same as they were in the courts below.
+However, after the case had been argued for the first time before five justices, the court raised a number of further questions with the parties which expanded the scope of the argument.
+We directed that the case should be reargued before seven justices so that those questions could be considered.
+The matters raised by the court included the correctness of Zurichs concession that if their first argument failed they were contractually liable (subject to recoupment) for the whole loss.
+An alternative possibility was that the insurer was liable for a proportionate part of the loss as a matter of construction of the policy, whether Barker remained good law or not and even in England where the Compensation Act applied.
+Upon reargument, Zurich addressed the construction question but maintained its concession.
+It was supported in this line by the Association of British Insurers.
+Construction of the policy
+I turn first to the construction of the policy, partly because it is the natural starting point for any analysis of its effect, and partly because I do not accept the construction which the parties have adopted as their premise.
+The six annual policies written by Midland were issued between 1982 and 1988.
+At that time, Fairchild, the Compensation Act and their legal progeny lay well into the future.
+These developments have greatly increased the potential liability of employers to employees whom they have wrongfully exposed to asbestos but that, as everyone can agree, is an ordinary hazard of liability insurance.
+The policies respond to the liability incurred by the insured in the course of the employment of its employees as the law may from time to time determine it to be, whether or not that liability would have been anticipated at the time that the contract of insurance was made.
+That, however, is not the problem with which we are presently concerned.
+We are concerned with the construction of the policies themselves.
+They cannot be construed on the footing that the parties were contracting by reference to the extraordinary legal problems to which Fairchild and its progeny have given rise.
+In Philips Electronique Grand Public SA v British Sky Broadcasting Ltd [1995] EMLR 472, Sir Thomas Bingham MR observed at paras 481 482: The courts usual role in contractual interpretation is, by resolving ambiguities or reconciling apparent inconsistencies, to attribute the true meaning to the language in which the parties themselves have expressed their contract.
+The question of whether a term should be implied, and if so what, almost inevitably arises after a crisis has been reached in the performance of the contract.
+So the court comes to the task of implication with the benefit of hindsight, and it is tempting for the court then to fashion a term which will reflect the merits of the situation as they then appear.
+Tempting, but wrong. it is not enough to show that had the parties foreseen the eventuality which in fact occurred they would have wished to make provision for it, unless it can also be shown either that there was only one contractual solution or that one of several possible solutions would without doubt have been preferred.
+Each Midland policy recited that the insured had applied for insurance and had paid or agreed to pay the premium as consideration for such insurance during the period stated in the Schedule or for any subsequent period for which the Company shall have accepted the premium required for renewal of this policy.
+The insuring clause provided: If any person under a contract of service or apprenticeship with the Insured shall sustain any bodily injury or disease caused during any period of insurance and arising out of and in the course of his employment by the Insured in the business above mentioned, the Company will indemnify the Insured against all sums for which the Insured shall be liable in respect of any claim for damages for such injury or disease settled or defended with the consent of the Company.
+The Company will in addition pay claimants costs and expenses and be responsible for all costs and expenses incurred with the consent of the Company in defending any such claim for damages.
+The insuring clause makes explicit what would be implicit in any contract of liability insurance written on an occurrence basis for a limited period.
+The occurrence is not the mere exposure of the victim to asbestos.
+It is the sustaining of bodily injury or disease caused during any period of insurance.
+The indemnity extends to the insureds liability for damages for such injury or disease, ie injury or disease caused during the period of insurance.
+The insurance is expressed to apply only to liability in respect of any injury or disease caused in Great Britain, Northern Ireland, the Isle of Man and the Channel Islands, and to injury or disease sustained by employees temporarily employed elsewhere under a contract of service or apprenticeship entered into in one of those jurisdictions.
+A liability policy responds to the specified liabilities of the insured, but only subject to any overall limitations of the policy.
+One of these limitations is the period of insurance, which is a fundamental feature of any such policy.
+The whole of the insuring clause depends upon the assumption that it is possible to assign the time when an injury or disease was caused to a given period which either is or is not within the period of insurance.
+Either the damage will be divisible, in which case parts of it may have been caused in different periods and must be divided between those periods, or it will be indivisible, in which case it will have been caused in a single period.
+As the opening recital reminds us, the period of insurance is a critical element of the ex ante assessment of the risk on which the premium is based.
+Insurance for any further period is dependent on renewal and the payment of a further premium.
+It may also (although not in this policy) be critical to the application of a deductible or an aggregate annual limit or excess.
+In addition, the attribution of loss to particular years is likely to have a significant effect on an insurers reserving and his reinsurance.
+In the English case law the point has commonly been made in the context of reinsurance.
+In Municipal Mutual Insurance v Sea Insurance Co Ltd [1998] Lloyds Rep IR 421, a port authority was insured against liability for (among other things) damage to property in its custody.
+Damage was done to equipment stored with it by a succession of independent acts of vandalism over a period of 18 months.
+It was impossible to differentiate between one act of vandalism and another, and the port authority was held to be entitled to aggregate all of them and to make a single claim against its insurer for the whole.
+The insurer was reinsured under successive facultative annual reinsurances, on terms which were back to back with the direct insurances and contained a standard follow clause (to follow their settlements).
+This gave rise to difficulty when the claim was passed on as a single claim to the reinsurers, because the 18 month period when the damage was done extended over the periods covered by three successive annual reinsurance policies written by different insurers, each of which provided for a substantial excess.
+The insurers attempt to make a single aggregate claim on one reinsurance policy was rejected by the Court of Appeal.
+Hobhouse LJ, giving the only reasoned judgment, said at paras 435 436: it was incumbent upon the judge to recognise and give effect to the essentially annual character of each reinsurance contract.
+Applying the wording of the original policy to each reinsurance contract it is necessary to ask whether or not the relevant physical loss or damage arose during the relevant period of cover.
+The judge came to the surprising conclusion that each reinsurance contract covered liability in respect of physical loss or damage whether or not it occurred during the period covered by the reinsurance contract and he went on expressly to contemplate that the same liability for the same physical loss or damage might be covered under a number of separate contracts of reinsurance covering different periods.
+This is a startling result and I am aware of no justification for it.
+When the relevant cover is placed on a time basis, the stated period of time is fundamental and must be given effect to.
+It is for that period of risk that the premium payable is assessed.
+This is so whether the cover is defined as in the present case by reference to when the physical loss or damage occurred, or by reference to when a liability was incurred or a claim made.
+Contracts of insurance (including reinsurance) are or can be sophisticated instruments containing a wide variety of provisions, but the definition of the period of cover is basic and clear.
+It provides a temporal limit to the cover and does not provide cover outside that period; the insurer is not then on risk.
+It will be appreciated that the judge's suggestion that there could or should be contribution between those signing the different slips for the different years is likewise radically mistaken.
+In Wasa International Insurance Co Ltd v Lexington Insurance Co [2010] 1 AC 180, Lexington had insured an aluminium manufacturer for a single period of three years between 1977 and 1980 against property damage.
+The insured incurred large liabilities for environmental clean up costs.
+The clean up costs were necessitated by industrial pollution occurring since the early 1940s.
+It claimed indemnity for the entire loss from each successive insurer by whom they had been insured against property or liability risks between 1956 and 1985, including Lexington.
+The claim was heard in Pennsylvania under Pennsylvania law.
+The courts there held that each insurer was jointly and severally liable for all damage which was manifest during their period of insurance irrespective of when it occurred.
+This meant substantially all the pollution damage attributable to industrial operations not only during the period of insurance but over the previous three decades.
+Lexington settled with the aluminium company on that basis.
+The reinsurance was on the same terms as the original as to period and coverage.
+It also contained a follow the settlements clause.
+But it was governed by English law, under which liability would have been limited to damage caused during the period of insurance, whereas the Pennsylvania court applied its own law under which no such limit applied.
+The argument for Lexington was that the Pennsylvania courts had decided that the pollution damage occurring over the whole period was insured under the 1977 1980 policy and that the reinsurance, which was on the same terms save as to the proper law, must respond on a like basis.
+The House of Lords rejected this contention.
+They held that, notwithstanding the ordinary presumption that reinsurance was back to back with the underlying insurance, the reinsurers liability was limited to damage caused between 1977 and 1980.
+The leading speeches were delivered by Lord Mance and Lord Collins of Mapesbury.
+Lord Mance said, at paras 40 41: 40.
+Viewing the reinsurance through purely English law eyes, it cannot therefore be construed as a contract to indemnify Alcoa in respect of all contamination of Alcoa sites, whenever caused or occurring, provided that part of such contamination manifested itself or was in being during the reinsurance period.
+That would involve reinsurers in an unpredictable exposure, to which their own protections might not necessarily respond.
+It would mean that the same exposure would arise, even if they had granted the reinsurance for a shorter period than the three year period matching the original since the original itself would, even if in force for only one year, have had effectively the same exposure as that for which the Washington Supreme Court held it answerable.
+Under the approach taken by the Washington Supreme Court, reinsurers must have incurred liability (in practice probably up to the reinsurance limits), as soon as they wrote the reinsurance.
+The retention must likewise have been exhausted before the reinsurance period began, and cannot have fulfilled any object of introducing an element of discipline into insurers' handling of the insurance.
+These represent as fundamental and surprising changes in the ordinary understanding of reinsurance and of a reinsurance period as those to which Hobhouse LJ was referring in the Municipal Mutual case [1998] Lloyd's Rep IR 421. 41.
+The reference in the reinsurance slip to the retention as subject to excess of loss &/or treaty R/I is a reminder that an insurance and reinsurance such as the present are likely to be part of a larger programme of protections.
+Excess of loss reinsurance is underwritten on either a losses occurring or risks attaching basis: Balfour v Beaumont [1984] 1 Lloyd's Rep 272.
+In other words, it is fundamental that such a reinsurance will respond in the one case to losses occurring during the reinsurance period, in the other to losses occurring during the period of policies attaching during the reinsurance period.
+To treat excess of loss policies as covering losses through contamination occurring during any period, so long as some of the contamination occurred or existed during the reinsurance period, would be to change completely their nature and effect.
+Lord Collins said, at para 74: 74.
+In English law, where an insurance or reinsurance contract provides cover for loss or damage to property on an occurrence basis, the insurer (or reinsurer) is liable to indemnify the insured (or reinsured) in respect of loss and damage which occurs within the period of cover but will not be liable to indemnify the insured (or reinsured) in respect of loss and damage which occurs either before inception or after expiry of the risk.
+As Lord Campbell CJ said in Knight v Faith (1850) 15 QB 649, 667: the principle of insurance law [is] that the insurer is liable for a loss actually sustained from a peril insured against during the continuance of the risk.
+Lord Brown of Eaton under Heywood, concurring with Lord Collins, pointed out at para 15 that if Lexingtons argument were correct, the reinsurers would have incurred the same liability if they had been on risk for only three months instead of three years: Given the fundamental importance under English law of the temporal scope of a time policy, I find it impossible to construe the reinsurance contracts in the way contended for.
+Reinsurance is not an insurance on liability, but on the original risk.
+In Municipal Mutual the original risk was the insureds liability for property damage and in Wasa it was the property damage itself.
+But the principle stated in them is the same, and it is of general application, as Hobhouse LJ pointed out.
+The courts are bound to give effect to the contractual limitations on the insurers liability.
+In particular, they are bound to give effect to the chronological limits of the risks covered, and to those provisions of the contract that operate by reference to the insurance period.
+The question on this appeal is how the terms of a chronologically limited policy are to apply to the liability resulting from the decision in Fairchild and the Compensation Act 2006.
+The objection to construing the Midland policies in this case as covering the damage caused at any time during the 27 years in which Mr Carr was exposed to the risk of contracting mesothelioma is the same as the objection of the Court of Appeal in Municipal Mutual and the House of Lords in Wasa to the corresponding arguments in those cases.
+The consequences are both commercially absurd and entirely inconsistent with the nature of annual insurance.
+The longer an employee is exposed to asbestos, the greater the risk of his contracting mesothelioma at some stage in his life.
+The result of IEGs argument is that under the contract the financial consequences for the insurer of writing the contract for a single year are the same as the financial consequences of writing the risk for the full 30 years, although he only receives a single years premium in the former case and 30 years premium in the latter.
+Indeed, the consequences would be the same even if the insured had been held covered for a time on risk premium for just a week or two while an unsuccessful attempt was made to agree terms.
+This entirely severs the functional connection between premium and risk.
+The employer for his part would obtain cover in respect of those whom he employed and exposed to asbestos particles in the period of cover, notwithstanding that for the rest of their working lives he elected to insure with others, or indeed elected not to insure at all.
+On that footing, the insurer assumes a liability of indeterminate duration notwithstanding that he expressly limited his liability to a single year.
+The indeterminate duration of the liability would extend both backwards and forwards.
+Thus an insurer who wrote a policy for, say, the first year of compulsory insurance, 1972, for an employer who had exposed its employees to asbestos particles for the previous half century and continued to do so, would assume liability for the entire accumulated legacy of exposure in the case of all employees on its payroll at the inception of the policy however far back the exposure of those employees extended.
+An insurer who insured the employer for a single year but refused to renew because of unfavourable claims experience or an increase in the risk would nevertheless remain liable in respect of the exposure of existing employees for an indefinite period into the future without payment of any further premium.
+Moreover, the insurer of a single year would have to pick up the tab for every other insurer who was on risk over an indeterminate period, although he had assumed a liability which was not co ordinate with theirs because they covered distinct periods.
+It also would mean that where the terms of successive policies were different, for example as to the excess or the limit, the insured could select a policy and spike the whole of the loss into the period covered by it.
+In the course of his judgment in the Court of Appeal, Toulson LJ observed that awarding less than the whole loss against any one insurer would deprive the insured of the insured coverage for which it paid.
+This observation seems to me to be the reverse of the true position.
+An employer who has paid a single years premium has not paid for 27 years of cover, which is what the decision of the Court of Appeal gives him.
+I understand every member of this court to be agreed that these consequences are unacceptable.
+As Lord Mance points out at para 40 of his judgment, the insurance was placed on the basis that a particular liability or loss would fall into one, not a series of separate periods.
+If an insured wanted complete cover, it would have to maintain it for all such periods.
+At para 43, he draws attention to the consequences which I have summarised above, and describes them as contrary to principle and anomalous.
+He is, with respect, plainly right to do so.
+These consequences are not just remarkable in themselves, but are directly inconsistent with the language of the Midland policies and the fundamental characteristics of insurance.
+This is not because any of the elements of liability, such as causation or damage, is divisible by time.
+Plainly they are not.
+It is because once the insured has proved each of those elements, he must still show that the occurrence fell within the chronological limits of the policy.
+If a particular result is inconsistent with the nature of insurance, and with the basis on which annual insurance is placed, there must be the strongest possible presumption that it was not intended, in the absence of clear language showing that it was.
+To explain why IEGs submission is mistaken, it is first necessary to differentiate between the legal basis of an employers liability to his employee and the legal basis of the insurers liability to the employer.
+At common law, the Dingle principle is that if several people tortiously contribute by independent acts to the same damage, they are all jointly and severally liable for the whole of the resulting damage.
+In Barker, the Court of Appeal and Lord Rodger in his dissenting speech in the House of Lords likened this state of affairs to the situation where several employers successively exposed the same victim to the risk of contracting mesothelioma.
+The majority of the House rejected that analogy, but the effect of section 3 of the Compensation Act was to reinstate it.
+The result is that each employer is contributing to the risk all the time, and is therefore incurring liability all the time.
+This makes some sense as between successive employers who are guilty of a continuous tort.
+However, the same logic cannot be applied as between successive insurers.
+Insurers are not wrongdoers.
+They have not contributed to any tortiously inflicted damage.
+The principles on which they are liable to indemnify their insured are not affected by the Compensation Act.
+Their liability depends not on common law or statutory concepts of culpability but on the liability that they have agreed to assume by contract.
+Although they have contracted to indemnify the insured in respect of his liability, they have done so on terms which require the assignment of causation to a contractual period and limit their liability to that period.
+This raises a problem which is, essentially, not legal but factual.
+The Fairchild principle is the laws response to the factual certainty that the disease was caused during the period of exposure combined with a complete uncertainty about when.
+If the assignment of causation to a particular period of coverage is scientifically impossible, then one solution would be for the law to say that the insured has not proved his case, as Lord Phillips would have held in Trigger.
+The alternative, once that is rejected, is to devise a mode of assigning causation to a particular period of time which is the closest possible surrogate for the real thing.
+The majority in Trigger adopted the latter solution, holding that any period of tortious exposure to the risk of contracting mesothelioma was enough to establish that the employer had caused the disease if it subsequently developed.
+The employers liability insurer was liable on that basis.
+The fallacy of IEGs argument is that it assumes that because any period of tortious exposure to the risk of contracting mesothelioma is enough to establish causation of the disease, it must follow that the disease was successively caused in every period of exposure.
+But that is conceptually impossible.
+Mesothelioma is caused only once.
+Once the process by which it develops has been initiated, subsequent further exposure to asbestos will not aggravate the victims condition or increase the loss.
+Pursuing the example of an employee exposed to asbestos particles for 30 years, let us assume that a different insurer is on risk in each year of exposure.
+If IEG is right, each insurer is liable for the entire loss in respect of an employee exposed to asbestos in his year who subsequently contracts mesothelioma, subject only to the limitation that the insured cannot recover more than an indemnity.
+By the same token, if the same insurer was on risk throughout the period of exposure, that insurer would be liable for the entire loss in each year, subject to the same limitation.
+But this makes no sense.
+It is conceptually possible for an insurer to be liable on the footing that there is a chance that the disease was caused in any year and that that should be enough to establish the necessary causal link.
+It is not conceptually possible for an insurer to be liable on the footing that the disease was actually caused in every year.
+It is only when one aggregates every successive period that the chances add up to 100%.
+IEGs answer to this is that because for the purposes of the insuring clause Trigger equates exposure to the risk with causation of the disease, it follows from the fact that the risk operated continuously throughout the period of exposure that the disease was continuously caused throughout the period of exposure.
+Therefore, it is said, causation of the disease is at one and the same time (i) a single indivisible occurrence, resulting in the entire claim falling into a single policy year, and (ii) a continuing occurrence extending over every policy year and equally efficacious in causing the disease in each one.
+I would be reluctant to assume that any judicial decision was authority for a contradiction in terms, and I do not think that Trigger is authority for this one.
+The effect of Trigger is that the insurers liability is triggered in each insurance year during the period of exposure.
+This is not because the insurance is against the exposure to the risk, a proposition which the court was at pains to reject in Trigger, just as the House of Lords had previously rejected it in Barker.
+Nor is it because the disease was actually caused in each insurance year, which is logically impossible and in any event ex hypothesi unknowable.
+It is because exposure to the risk is the closest surrogate that can be devised for determining when the disease was caused.
+This is the meaning of the weak or broad causal link to which Lord Mance referred at para 74 of Trigger.
+The link is, as he put it, to exposure which may but cannot be shown on the ordinary balance of probabilities to have played a role in the actual occurrence of the disease.
+The theory that an insurer is liable in respect of any year of insurance when the employee was exposed to the risk of contracting mesothelioma is a perfectly satisfactory answer to the question whether the insurer is liable at all, which was the only relevant question at issue in the Trigger litigation.
+But it cannot be applied without modification when the question is how much of the loss is attributable to particular years.
+If, as Trigger teaches, the insurers liability is triggered in each policy year, the rational response of the law is not to assign the whole of that loss to a policy year of the insureds choice.
+That would be to assume that the whole loss was caused in that year, whereas the law proceeds from the premise that we cannot know that.
+The rational response is that the loss must be prorated between every policy year during which the insured employer exposed the victim to asbestos.
+In my opinion, once one rejects the conclusion that the insurer is not liable at all, proration on that basis is the only way of giving effect to the overriding requirement of each annual policy that the liability should be assigned to policy years.
+If exposure to the risk of contracting mesothelioma is equated with causation, the natural consequence is that the resultant liability falls to be apportioned to policy years according to the duration and intensity of the exposure.
+What is being prorated as between the insurer and the employer is the employer's liability, not the indivisible harm of the mesothelioma itself.
+The chances of contracting mesothelioma, as Lord Hoffmann observed in Barker, are infinitely divisible, even if mesothelioma itself is not.
+This conclusion does not, as it seems to me, require words to be read into the policy, any more than the weak or broad test of causation adopted in Trigger required words to be read into the policy.
+It simply involves, as Trigger involved, construing the words caused during any period of insurance in the light of the terms of the policy as a whole and applying them to an insured liability with the unusual legal incidents of an employers liability for mesothelioma.
+I can deal very shortly with the words all sums in the insuring clause, on which Aikens LJ relied to support his conclusion.
+The relevant phrase is not all sums but all sums for which the insured shall be liable in respect of any claim for damages for such injury or disease, ie for injury or disease caused during any period of insurance.
+The insurance does not cover all sums for which the insured may be liable, but only those which fall within the chronological limits of the risk which the insurer has assumed.
+I have concentrated on the case where there is a single culpable employer whose operations are the sole relevant source of exposure to asbestos particles, because those are the facts of the present case.
+But there is no particular difficulty in applying the same principle to cases where there are successive tortfeasors or successive sources of exposure.
+The liability of the employer to the victim is apportioned to the insurer according to the proportion which its period on risk bears to the whole period during which that employer has tortiously exposed the victim to asbestos.
+If the insured employer is jointly and severally liable to the victim under section 3 of the Compensation Act with earlier employers who exposed the same victim to asbestos, that liability will form part of the liability which falls to be prorated between his successive insurers or between them and himself in respect of periods of non insurance.
+If the insured employer is insured throughout the period during which he exposed the victim to asbestos, the insurers will be liable for their respective proportions of 100%.
+Likewise, if there is another source of exposure to asbestos (for example ambient environmental asbestos) which were to be held to reduce the insured employers liability, the liability passed on to his insurer will be correspondingly reduced, but if not, not.
+United States Authority
+This conclusion, which appears to me be a logical application of the insuring clause to the kind of liability which arises in this case, derives some support from the rich jurisprudence of the United States, where similar questions have frequently come before the courts in the context of asbestosis and environmental pollution claims.
+Insurance is governed by state law and there are, perhaps inevitably, significant differences of approach in different state jurisdictions.
+In the celebrated case of Keene Corporation v Insurance Company of North America (1981) 667 F 2d 1034 the United States Court of Appeals for the District of Columbia (applying the laws of Delaware, New York, Pennsylvania, Connecticut and Massachusetts) held that either exposure or manifestation of the disease would make the insurer liable, and that each insurer was jointly and severally liable for the whole loss.
+The courts decision on the latter point was endorsed by Toulson LJ in his judgment in the Court of Appeal in the present case: see para 42.
+It was based mainly on the reasonable expectations of policyholders, a consideration which, except as background to the construction of the policy, does not have the significant place in English insurance law as it has in many jurisdictions of the United States.
+So far as it was based on the language of the policy at all, the imposition of joint and several liability in Keene was based on the expression all sums which the insured shall become legally obligated to pay as damages because of bodily injury: see note 20 (emphasis added).
+I have given my reasons for regarding the corresponding words as inconclusive in the context of the Midland policies.
+So far as Keene is authority for a triple or continuous trigger in cases about insurers liability for latent industrial diseases, it has been widely followed in other jurisdictions of the United States.
+But so far as it imposes joint and several liability on successive insurers, it has not met with universal acceptance, and major insurance jurisdictions have rejected it.
+In Insurance Company of North America v Forty Eight Insulations Inc (1980) 633 F 2d 1212, the Sixth Circuit Court of Appeals applied the laws of Illinois and New Jersey to a dispute about the allocation of a loss among successive insurers and the insured itself (in respect of periods of self insurance).
+The court construed product liability policies in respect of bodily injury as covering latent diseases on an exposure basis.
+The insured conceded that the insurers liability fell to be prorated according to time on risk, leaving them with a rateable part representing the period of exposure when they were uninsured.
+The issue was, however, argued out on the question whether the same rule applied to defence costs, which the employer did not concede.
+By a majority, the court ordered the proration of the defence costs, observing at para 73: In an underlying asbestosis suit, the plaintiff must show that Forty Eight's products injured him in order to be able to maintain a cause of action against Forty Eight.
+Under Borel, Forty Eight would be jointly and severally liable along with the other asbestos manufacturers: 493 F 2d at 1094 96.
+However, in allocating the cost of indemnification under the exposure theory, only contract law is involved.
+Each insurer is liable for its pro rata share.
+The insurer's liability is not joint and several, it is individual and proportionate.
+Accordingly, where an insurer can show that no exposure to asbestos manufactured by its insured took place during certain years, then that insurer cannot be liable for those years.
+The reason is simple: no bodily injury resulting from Forty Eight's products, took place during the years in question.
+The same thing would be true if an insurer could show that a worker used an effective respirator during certain years.
+Again, no bodily injury would have taken place.
+In my view, this analysis of the reason why the compensation element of the claim falls to be prorated cannot be faulted, although for reasons which I shall explain I do not think that it can be applied to defence costs.
+In Owens Illinois Inc v United Insurance Company (1994) 138 NJ 437, another product liability insurance case, the Supreme Court of New Jersey reached a similar conclusion on the assumption that the insurers liability was continuously triggered throughout the period of exposure, but rejected the solution proposed in Keene that each insurer on risk during that period was liable for the entire loss.
+Instead, it proposed a complex system of proration.
+At p 468, the court observed: The occurrence clauses undoubtedly contemplated indemnity for provable damages incurred by the policyholder because of injury that occurred during the policy period.
+The continuous trigger theory coupled with joint and several liability is premised on a tenuous foundation: that at every point in the progression the provable damages due to injury in any one of the years from exposure to manifestation will be substantially the same (the collapsed accordion).
+As we have seen, our law has been developing in a different manner.
+The court found little assistance in the language of the contract, but concluded that for reasons essentially of policy and practical efficacy, proration was the appropriate solution.
+It was particularly concerned with the anomaly that the Keene solution placed an insured with insurance for a small part of the period of exposure in the same position as one with insurance for all of it.
+At p 473, the court said: the Keene rule of law reduces the incentive of the property owners to insure against future risks.
+Recall the circumstances in the final three years.
+Assuming the availability of insurance, a principle of law that would act as a disincentive to the building owners in the hypothetical might serve in the long run to reduce the available assets to manage the risk.
+O I's counsel counters that these are not correct assumptions about the way in which the real world responds.
+We cannot be sure that the policy will be effective.
+We believe, however, that the policy goal is sound.
+Finally, principles of simple justice cannot be entirely discounted.
+To rebut effectively the question posed in Forty Eight Insulations is difficult.
+Were we to adopt [the policyholder's] position on defence costs a manufacturer which had insurance coverage for only one year out of 20 would be entitled to a complete defence of all asbestos actions the same as a manufacturer which had coverage for 20 years out of 20.
+Neither logic nor precedent support such a result.
+And at p 479: Because multiple policies of insurance are triggered under the continuous trigger theory, it becomes necessary to determine the extent to which each triggered policy shall provide indemnity.
+Other insurance clauses in standard CGL policies were not intended to resolve that question.
+A fair method of allocation appears to be one that is related to both the time on the risk and the degree of risk assumed.
+When periods of no insurance reflect a decision by an actor to assume or retain a risk, as opposed to periods when coverage for a risk is not available, to expect the risk bearer to share in the allocation is reasonable.
+Estimating the degree of risk assumed is difficult but not impossible.
+Insurers whose policies are triggered by an injury during a policy period must respond to any claims presented to them and, if they deny full coverage, must initiate proceedings to determine the portion allocable for defence and indemnity costs.
+In Consolidated Edison Company of New York Inc v Allstate Insurance Company (2002) 98 NY 2d 208, a similar issue arose in relation to a claim under a policy for environmental pollution liability.
+The assured argued for joint and several liability on the part of all insurers during the period when the pollutants were being released into the ground, because of the difficulty of assigning the damage to any one period.
+Rejecting this argument, the New York State Court of Appeals said, at p 224: Con Edison wants to combine this uncertainty based approach, which implicates many successive policies, with an entitlement to choose a particular policy for indemnity.
+Yet collecting all the indemnity from a particular policy presupposes ability to pin an accident to a particular policy period (see Sybron Transition Corp, 258 F 3d at 601; Owens Illinois, 138 NJ at 465, 650 A 2d at 988 989).
+Although more than one policy may be implicated by a gradual harm (see eg McGroarty v Great Am Ins Co, 36 NY 2d 358, 365), joint and several allocation is not consistent with the language of the policies providing indemnification for all sums of liability that resulted from an accident or occurrence during the policy period (see Olin Corp, 221 F 3d 307, 323).
+Pro rata allocation under these facts, while not explicitly mandated by the policies, is consistent with the language of the policies.
+Most fundamentally, the policies provide indemnification for liability incurred as a result of an accident or occurrence during the policy period, not outside that period (see Forty Eight Insulations, 633 F 2d at 1224).
+Con Edison's singular focus on "all sums" would read this important qualification out of the policies.
+Proration of liability among the insurers acknowledges the fact that there is uncertainty as to what actually transpired during any particular policy period (see Sybron Transition Corp, 258 F 3d at 602).
+Recently, in State of California v Continental Insurance Company (2012) 55 Cal 4th 186, 198 (and note 4), the Supreme Court of California noted that proration had been adopted by at least 12 states (Colorado, Connecticut, Kansas, Kentucky, Louisiana, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, Utah and Vermont), while Keene had been followed on this point in at least six states in addition to California itself (Delaware, Indiana, Ohio, Pennsylvania, Washington and Wisconsin), generally on account of the all sums language of the policy.
+Policy considerations
+Fairchild and Barker were both cases in which legally unconventional rules for establishing liability in tort were adopted for reasons of policy.
+In Trigger, there was clearly a significant policy element behind the majoritys adoption of a weak test of causation in the construction of the insuring clause, in place of the austere logic of Lord Phillips, who would have held that employers liable on the Fairchild basis were not insured at all.
+It is therefore natural to ask whether a similar approach may not justify a rule which would make each insurer liable in full irrespective of the period for which he was on risk, so as to ensure that whatever happens the employee is protected.
+This is essentially what the victim support groups submit.
+Judges are not always candid about the broader considerations which lead them to prefer one view of the law to another.
+But the desire to ensure an outcome which protects victims of occupational mesothelioma has had such a strong influence on recent case law, that its relevance to the present issues is a question that needs to be confronted.
+There are two reasons why the employee might be unable to recover damages for contracting mesothelioma resulting from his tortious exposure to asbestos.
+One is that his employer has insured with an insurer who subsequently becomes insolvent.
+The other is that his employer has in breach of his statutory obligation failed to insure at all.
+The employee has no reason to be concerned with either problem if his employer is solvent and able to meet his liabilities from his own resources.
+But both are a potential problem if, in addition, his employer is insolvent.
+It is clear that the main reason for holding an insurer who was on risk at any time during the period of exposure liable for the entire loss is that this obliges that insurer to bear the risk of the absence of effective insurance in other years in which it was not on risk.
+It is therefore necessary to ask what conceivable policy could justify that? The Fairchild principle is not addressed to the problems of insurer solvency or non insurance.
+It is addressed to the scientific impossibility of ascertaining when the insured occurrence happened.
+The Midland policies were written in a standard form which by its express terms applies only to injury or disease caused in Great Britain, Northern Ireland, the Isle of Man and the Channel Islands or to employees temporarily employed elsewhere under a contract entered into in one of those jurisdictions.
+It is therefore clear that it was designed to satisfy the employers statutory obligation to insure under the Employers Liability (Compulsory Insurance) Act 1969.
+It is self evident that that Act was intended to protect employees with claims against their employers rather than the employers themselves.
+We can deduce from this that the Act of 1969 should predispose a court to find that that coverage for occupational injury and disease has been provided, as indeed this court held that it was in Trigger.
+But there is nothing in the policy of the Act which is inconsistent with insurance being obtained through annual policies, as it normally has been throughout the history of this market.
+And nothing which assumes that coverage will be provided beyond the express chronological limits of the policy simply because there is no effective insurance in place beyond those limits.
+On the contrary, the Act envisages that there will be continuous cover with authorised insurers.
+Insurers have deep pockets, but that in itself cannot justify imposing on them a liability which they have not agreed.
+Nor is there any need to pick the pockets of the insurers in this way, since the employee is amply protected by various statutory schemes from the risk of being unable to recover.
+The Policyholders Protection Act 1975 introduced a statutory scheme of compensation for policyholders of insolvent insurers.
+It protected business policyholders in full in respect of risks subject to compulsory insurance.
+These arrangements have since been replaced by the wider terms of the Financial Services Compensation Scheme introduced by section 213 of the Financial Services and Markets Act 2000.
+The successive schemes have all been funded by statutory levies from the insurance industry.
+This legislation does not protect the employee in respect of loss attributable to a period for which there was no insurance in place.
+But such protection has now been conferred on eligible persons diagnosed on or after 25 July 2012 by the Mesothelioma Act 2014.
+The Act provides for a scheme to be established by secondary legislation under which the victim or his dependants will be entitled to specified payments from a statutory fund if they are unable to bring an action for damages in respect of the disease against any employer of the person or any insurer with whom such an employer maintained employers liability insurance (because they cannot be found or no longer exist or for any other reason): section 2(1)(d).
+Section 18(3) provides that for this purpose the scheme may specify circumstances in which a person is, or is not, to be treated as able to bring an action for the purposes of section 2(1)(d) .
+The scheme was established by the Diffuse Mesothelioma Payment Scheme Regulations 2014 (SI 2014/916).
+It provides for the payment of specified lump sums to victims or their dependents, the amount of which varies with the age of the victim upon diagnosis.
+The power conferred by section 18(3) has been exercised by extending eligibility to any case in which the employer falls within the 1930 Act (ie is insolvent) and no other employer or insurer can be found or exists against whom the person can maintain an action for damages: regulation 7(1)(b) (emphasis added).
+There are potential issues about the criteria of eligibility in section 2 of the Act, in a case where the employee is entitled to proportionate amounts in respect of different years and there is insurance for some of those years but not for others.
+Like the Financial Services and Markets Act scheme, the cost of the fund is met by a levy on the United Kingdom insurance industry.
+The combined effect of these schemes is that the employee is protected against the insolvency of an insurer or the absence of insurance, in any case where his employer is unable to meet his liabilities.
+As the rules governing the Financial Services and Markets Act scheme presently stand, if an insurer on risk in one year were required to pay the entire loss, thus discharging the liability of insolvent insurers on risk in other years, that insurer would to that extent be entitled to claim against the scheme: see Prudential Regulation Authority: Handbook, Compensation Rules, para 4.4.3.
+But if an insurer on risk in one year were required to make good the failure of the employer to insure at all in other years, that insurer would have no equivalent right to recover from the scheme created under the Mesothelioma Act 2014.
+Accordingly, the result of imposing on him a liability to pay the entire loss is to cast the entire burden of the insurance gap on him when the scheme of the Act of 2014 is to spread it across the insurance industry as a whole.
+Defence costs
+That leaves the question whether the right to prorate the insureds loss across the period of exposure applies also to defence costs.
+The insuring clause provides, immediately after the principal coverage provision: The Company will in addition be responsible for all costs and expenses incurred with the consent of the Company in defending any such claim for damages.
+The insurer is liable under this provision for costs and expenses incurred with its consent in defending any such claim for damages, ie a claim for damages for disease caused during any period of insurance.
+Similar language has been held in some of the jurisdictions of the United States which prorate the principal liability to require the proration of the defence costs as well: Insurance Company of North America v Forty Eight Insulations Inc (1980) 633 F 2d 1212.
+I have some sympathy with the instinct behind this view, but the difficulty about it is that the tests are not the same.
+The insurers liability for the compensation element of the claim falls to be prorated according to time on risk because on a proper analysis it relates only in part to the period for which the risk was insured.
+The insurers liability for the defence costs is different.
+Unless there was some severable part of the defence costs that can be specifically related to a period when the insurer was not on risk, the whole of the defence costs had to be incurred to meet that part of the claim which was insured.
+The fact that it was also required to meet the uninsured remainder of the claim is irrelevant.
+The most that the insurer can say in this situation is that in funding the defence of a claim so far as it related to an insured period, it incidentally conferred a benefit on those who were potentially liable for the same claim in respect of an uninsured period: ie other insurers and IEG in its capacity as self insurer.
+In New Zealand Forest Products Ltd v New Zealand Insurance Co Ltd [1997] 1 WLR 1237, the insured incurred costs in defending litigation in California against a number of parties only one of whom, a director, was insured against the relevant liability.
+The Privy Council held that the defence costs did not fall to be apportioned between the insured and uninsured defendants.
+So far as the defence costs were reasonably required to meet the defence of a party whose liability was insured, the insurer was bound to pay them.
+It did not matter that the expenditure also benefitted other parties whose liabilities were not insured.
+The principle is accepted by the insurers on this appeal, who concede that they are liable to pay the defence costs in full.
+That concession appears to me to be correct.
+It follows that as a matter of contract Zurich is contractually liable to meet the defence costs in full.
+The Guernsey angle
+In the Court of Appeal in the present case, Toulson LJ expressed the view that in the light of the subsequent developments in the law, Barker had become past history and was no longer good law even in cases (such as those arising in Guernsey) where the Compensation Act did not apply.
+I have arrived at the conclusion about the proration of contractual liability for compensation by reference to the terms and nature of the contract of insurance.
+The analysis would have been the same if Mr Carr had been employed in England.
+It is therefore strictly speaking unnecessary to address the question whether Toulson LJ was right about the current status of Barker.
+But in view of the fact that the point was fully argued, I will briefly summarise my reasons for thinking that he was wrong.
+The common law is not a series of ad hoc answers to particular cases, but a body of general principle by reference to which answers may be found.
+The Act of 2006 did not alter any principle of the common law.
+In the first place, it did not lay down the elements of liability.
+It assumed liability and regulated only the measure of recovery.
+Secondly, it applied only to mesothelioma cases, and then only to regulate the measure of liability in tort as between the tortfeasor and the victim.
+Thirdly, even in relation to mesothelioma, section 3(1) applied only where the responsible person incurred liability for materially increasing the risk.
+Liability is incurred on that basis only on the footing that the time at which the disease is caused is impossible to determine.
+As Lord Phillips pointed out in Sienkiewicz v Greif (UK) Ltd [2011] 2 AC 229, at para 70, the courts would be entitled to revert to the conventional approach of requiring proof of causation on the balance of probabilities if advances in medical science make this possible.
+In other words, the Act left the common law intact, but carved an exception out of it for mesothelioma.
+It follows that Fairchild as interpreted by Barker remains good law in those jurisdictions (such as Guernsey) where the Act does not apply, and remains good law as applied to those legal relationships (such as the contractual relationship between insurer and insured) to which it does not apply.
+In those cases to which Barker continues to apply, it stands as authority for the allocation of liabilities which at common law are several only.
+Equitable recoupment and redistribution
+This question arises only on the assumption that an insurer who is on risk for only part of the period of exposure is contractually liable to meet the whole of the compensation element of the employers claim or the whole of the defence costs.
+On that assumption, Zurichs argument is that insurers are entitled in equity (i) to redistribute the burden among other insurers who are liable in respect of the same amounts but in respect of different policy periods, and (ii) to recoup from the insured a pro rata part of the cost of meeting that liability in respect of periods when there was no insurance at all.
+As I have already explained, I consider that the assumption on which this argument arises, namely that an insurer on risk for only part of the period of exposure is contractually liable for the whole loss, is false.
+However, the question has a more general significance.
+If, as Zurich contend, there is a general right of contribution or recoupment (i) as between insurers and (ii) as between insurers and insureds in respect of periods of non insurance, that would provide an alternative way of rectifying the anomalies associated with holding the insurer liable for the entire loss, alternative that is to construing the policy as responding for only a pro rata part of the loss.
+As between insurers each of whom insured only part of the period of exposure but are liable (on this hypothesis) in full, I think it clear that there is a statutory right of contribution.
+Section 1(1) of the Civil Liability (Contribution) Act 1978 came into force on 1 January 1979, and applies to damage occurring after that date: see section 7(1).
+This has sometimes been questioned, for example by Friedmann, Double insurance and payment of anothers debt (1993) 109 LQR 51, 54.
+But I can see no principled reason for questioning it.
+Section 1(1) provides that a person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise).
+A contract of indemnity gives rise to an action for unliquidated damages, arising from the failure of the indemnifier to prevent the indemnified person from suffering damage, for example, in a liability policy by having to pay the third party claimant: Firma C Trade SA v Newcastle Protection and Indemnity Association [1991] 2 AC 1, 34 (Lord Goff of Chieveley).
+The class of persons liable in respect of any damage suffered by another may include those liable in contract, and there is no reason to limit it to those who have themselves caused the damage, as opposed to those who have assumed a contractual liability in respect of it.
+The question is therefore whether the damage for which successive insurers are liable is the same damage.
+As a matter of construction and on ordinary principles of insurance law, it is not.
+As I have said, successive insurers of liability on an occurrence basis do not insure the same liability.
+Each of them has contracted to indemnify the insured against an insured peril occurring in its own period on risk.
+In the case of an indivisible injury the liability of successive insurers is therefore alternative and not cumulative.
+However, on the footing that (contrary to my opinion) the law treats each insurer as liable for the whole loss in each period of insurance, then it must necessarily have been the same damage.
+Whether there would be a right of contribution in respect of liabilities arising before 1 January 1979 is a more difficult question.
+There has always been a right of contribution at common law in cases of double insurance.
+But double insurance normally requires that two or more insurers should be liable in respect of the same interest on the same subject matter against the same risks.
+On this ground, English law has hitherto declined to recognise that double insurance can exist as between insurers liable in respect of different periods even if the loss is the same: National Employers Mutual General Insurance Association Ltd v Haydon [1980] 2 Lloyds Rep 149; Phillips v Syndicate 992 Gunner [2004] Lloyds Rep IR 426.
+It would require some considerable development of traditional concepts of double insurance to accommodate a situation like the present one.
+In Australia, where there is no legislation corresponding to the 1978 Act, this development has occurred: see Albion Insurance Co Ltd v Government Insurance Office of New South Wales (1969) 121 CLR 342.
+Whether the law should develop in the same way in England is a question that I should prefer to leave to a case in which it is more central to the outcome and the arguments of the parties.
+The Act of 1978 will cover the great majority of cases that seem likely now to arise.
+What is in my view clear is that there cannot be an equitable right of recoupment as between the insurer and his insured in respect of periods when the latter was not insured.
+The reason is that unlike an insurers relationship with other insurers under a co ordinate liability for the same loss, his relationship with the insured is a contractual relationship.
+Its content has been determined by agreement, and a right of recoupment would be inconsistent with that agreement.
+If the insured is contractually entitled to the whole amount, there cannot be a parallel right of recoupment in equity on the footing that it is inequitable for the insured to have more than part of it.
+The basis of the suggested right of recoupment is that it is unjust for the insurer to have to bear the whole loss.
+But I do not understand by what standard it is said to be unjust when the parties have agreed that it should be so.
+It is no answer to this to say that the alleged right of recoupment arises outside the contract.
+Of course, a contractual right and an equitable right of recoupment are juridically different.
+But the question is not what is the juridical origin of the claim for recoupment, but whether it operates by reference to the contract.
+To that question, there is only one possible answer.
+The alleged right of recoupment arises only because the contract (on this hypothesis) provides for the insurer to pay the whole loss.
+It arises as a direct result of the payment of the contractual indemnity.
+Its purpose is to undo in part what the contract has done.
+Mr Edelman submitted that a right of recoupment would only reflect the contribution of the employer to the risk of years which the insurer did not insure.
+So it would.
+But that is because (on this hypothesis) the contract requires the insurer to pay in full notwithstanding the contribution of the employer to the risk in the years which were not insured.
+If that is the consequence of the parties agreement, I know of no legal doctrine which can do away with it.
+Equity does not mend mens bargains.
+It may intervene to avoid unconscionable bargains, or to give effect to the parties real intentions (for example when proprietary rights are conferred for a limited purpose such as security), or to provide remedies where those available at law are defective.
+But these are principled exceptions which depend on the unconscionability of allowing the law to take its course.
+There is nothing unconscionable about the performance of a contract of insurance according to its terms.
+In this respect, the principle on which equity acts is no different from that of the common law, even where the relevant common law claim is non contractual.
+Thus a contractual relationship may give rise to a parallel duty of care in tort, and the consequences of breach (for example as regards limitation or foreseeability) may be different.
+But any contractual provisions about the content of the duty must apply to both: Henderson v Merrett Syndicates Ltd [1995] 2 AC 145, 191, 193 194 (Lord Goff of Chieveley).
+And a claim for unjust enrichment, which is probably the closest analogue to the right of recoupment proposed in this case, will not be allowed where its effect is to alter the contractual allocation of risks: Pan Ocean Shipping Co Ltd v Creditcorp Ltd [1994] 1 WLR 161, 164 (Lord Goff).
+As Etherton LJ said in MacDonald Dickens & Macklin (a firm) v Costello [2012] QB 244, at para 23, in language which applies well beyond the domain of unjust enrichment with which he was concerned: The general rule should be to uphold contractual arrangements by which parties have defined and allocated and, to that extent, restricted their mutual obligations, and, in so doing, have similarly allocated and circumscribed the consequences of non performance.
+That general rule reflects a sound legal policy which acknowledges the parties' autonomy to configure the legal relations between them and provides certainty, and so limits disputes and litigation.
+Of course, this will not necessarily apply where the relevant contractual right is vitiated, for example by illegality, frustration or mistake, all of which give rise to well established grounds for restitution: see Lord Mances observations at paras 69 71.
+But this has no bearing on a case such as this is said to be, where a valid, lawful and effective contract requires the insurer to satisfy the whole liability notwithstanding that he accepted only a time limited part of it.
+It is I think beyond question that to require part of that amount to be repaid on the ground that its retention would be unjust is a reversal of the effect of the contract by operation of law, something which cannot be justified if the contract is valid, lawful and effective.
+Mr Edelman QC, who appeared for Zurich, submitted that in respect of periods when the employer was not insured, he could be regarded as self insured and his position as regards contribution assimilated to that of a true insurer.
+Even if this were correct, it would not displace contractual allocation of risk.
+But in my view it is not correct.
+The submission is founded mainly on the decision of the House of Lords in Lord Napier and Ettrick v Hunter [1993] AC 713, 730, which is said to be authority for the proposition that self insurance is a form of insurance.
+The House held that a Lloyds name was accountable to his subrogated stop loss insurer for recoveries which he had made from successful litigation against his managing agents.
+Under the terms of the stop loss policy, the name had agreed to bear the first 25,000 of loss.
+It was held that he was not entitled to apply the recoveries against the bottom 25,000 of loss, because recoveries are applied to insurers top down, starting with the insurer of the highest tranche of loss.
+Lord Templeman referred to the name (p 730E) as acting as his own insurer for the uninsured tranches.
+But this was a figure of speech.
+The point that he was making was that if the name had actually insured the bottom tranche of loss, the insurer of that tranche would have been entitled to nothing from the recoveries because the insurers of higher tranches would have exhausted them.
+The name, having agreed to bear the bottom tranche himself, could be no better off than an insurer of the bottom tranche if there had been one.
+Self insurance is non insurance.
+Even if for the purposes of subrogation the position of a person with an uninsured excess is similar to that of an insurer of that excess, it does not follow that it is similar for any other purpose, still less that such a person is himself an insurer.
+IEG cannot be regarded for the purposes of the Civil Liability (Contribution) Act 1978 as being liable to themselves in respect of the uninsured periods of exposure for the same damage for which their insurers are liable to them in other years.
+The real basis for the alleged right of recoupment is the intolerable consequences of holding an insurer liable for a loss sustained over many years irrespective of how long he was on risk.
+But the correct response to these consequences is for the courts to do what they normally do when one construction of a contract leads to absurd results.
+They reject it and prefer another which does not exhibit the same anomalies.
+The whole recoupment analysis is in my opinion a classic example of the problems associated with the adoption of special rules within the Fairchild enclave which differ from those that would follow from the application of ordinary principles of law.
+Third Parties (Rights Against Insurers) Acts 1930 and 2010
+I do not propose to lengthen this judgment yet further by addressing the question whether, if there were a right of recoupment as between the insurer and the insured, it could be set off against the claim on the policy.
+If it could be set off, the employee of an insolvent employer, suing under the Acts of 1930 or 2010, would be no better off by having a contractual right to recover the entire loss under the policy.
+In my opinion, the question does not arise because he has no such contractual right.
+I will simply observe that this is another difficult question which arises only as a result of the discarding of orthodox principles of contractual interpretation in favour of special rules devised for special enclaves without regard to general principles.
+LORD NEUBERGER AND LORD REED: (agree with Lord Sumption)
+This appeal represents yet another demanding chapter in the difficult series of decisions of the House of Lords and Supreme Court in relation to an employers liability to a former employee, who was exposed to asbestos fibres during the course of his employment, and subsequently contracted mesothelioma, a disease which has been rightly described by other judges as hideous and dreadful.
+For ease of reference we will refer to such an employer and such a former employee as an employer and an employee respectively.
+The decisions start with Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32, which raised the question of an employers liability to an employee, who had also been exposed to asbestos dust when working for another employer.
+In that case, as explained by Lord Mance at paras 3 4 and Lord Sumption at paras 114 116 and 124 128 above, the House of Lords was faced with an unedifying choice between (i) applying well established rules of causation in tort and arriving at a thoroughly unpalatable decision, namely that neither employers negligence could be proved to have caused the disease, and (ii) extending the law of causation on an ad hoc basis, so that it was enough to prove that an employers negligence had materially increased the risk of contracting the disease, in order to achieve a tolerably fair outcome, namely that each employer was liable.
+The House elected for the latter course, and held that, in such a case, given that it was impossible to tell whether either employers breach of duty had caused the employee to contract the disease, each of the two employers should be held liable to the employee.
+To many people, that avowedly policy based decision, which is applicable to any disease which has the unusual features of mesothelioma (as described by Lord Sumption in paras 116 117) seemed, and still seems, not only humane, but obviously right.
+Indeed, there can be no doubt that it would have required an exceptionally hard headed (and, many people would say, hard hearted) approach to hold that neither employer was liable, which is what the application of established legal principle would have indicated.
+However, as subsequent decisions have shown, the effect of what was a well intentioned, and may seem a relatively small, departure from a basic common law principle by a court, however understandable, can lead to increasingly difficult legal problems a sort of juridical version of chaos theory.
+The problems stem from the fact that, unlike legislation, the common law cannot confine itself to a particular situation and deal with it in isolation from the remainder of the law; nor can it resolve problems on a purely pragmatic basis.
+It is a complex and extensive network of interconnected principles applicable to all situations falling within their scope.
+As Lord Nicholls of Birkenhead stated in Fairchild itself: To be acceptable the law must be coherent.
+It must be principled.
+The basis on which one case, or one type of case, is distinguished from another should be transparent and capable of identification.
+When a decision departs from principles normally applied, the basis for doing so must be rational and justifiable if the decision is to avoid the reproach that hard cases make bad law. (para 36).
+The creation of an ad hoc exception from established principles governing causation in order to provide a remedy to the victims of mesothelioma was, in the first place, likely to result in uncertainty as to the legal rationale of the exception (as distinct from the social policy of enabling victims of mesothelioma to obtain a remedy against negligent employers), and the consequent breadth of that exception.
+The rationale could not be merely the impossibility of establishing the cause of an injury, since such a wide exception to the general rule governing causation would destroy the rule (see, for example, the attempt to extend the exception to cases of medical negligence, narrowly defeated in Gregg v Scott [2005] 2 AC 176).
+As Lord Brown observed in Sienkiewicz v Greif (UK) Ltd [2011] 2 AC 229, para 186, the unfortunate fact is that the courts are faced with comparable rocks of uncertainty in a wide variety of other situations too, and that to circumvent these rocks on a routine basis would turn our law upside down and dramatically increase the scope for what hitherto have been rejected as purely speculative compensation claims.
+In the event, the rationale of the Fairchild exception continues to cause difficulty (as, for example, in Novartis Grimsby Ltd v Cookson [2007] EWCA Civ 1261).
+Secondly, the introduction of a novel test of causation in tort was bound, given the legal and commercial connections between different areas of the law, to give rise to a series of difficult questions and consequent uncertainty, as the ripples spread outwards.
+The first question which subsequently manifested itself was how the common law, having taken this step into the unknown, should allocate liability for damages as between two employers, each of whom had permitted an employee to be exposed to asbestos fibres.
+That question was addressed in Barker v Corus UK Ltd [2006] 2 AC 572, a decision analysed by Lord Sumption in paras 129 135.
+The pragmatic decision that each employer was responsible for a proportion of the damages but not for the whole created a further exception to established legal principles.
+Perhaps unsurprisingly, it was not unanimous, and, as Lord Sumption says, the reasoning is not easy to analyse.
+Indeed, it is not without interest that Lord Rodger disagreed with the majority as to the proper analysis of the reasoning in Fairchild.
+Parliament was unhappy with the decision in Barker, since it meant that, if an employer was insolvent, the employee might not recover that employers proportion of the damages.
+The decision was effectively reversed in short order by section 3 of the Compensation Act 2006.
+Unlike the two House of Lords decisions, section 3 of the 2006 Act was expressly limited to mesothelioma cases: a restriction which Parliament could impose, but the courts could not.
+The effect of section 3 is explained in para 136 by Lord Sumption.
+The next case to arrive at the Supreme Court in connection with employers liability to employees was Sienkiewicz v Greif (UK) Ltd [2011] 2 AC 229, a decision which has no direct part to play in the present appeal, although it involved a logical, if probably unanticipated, extension of what had by then been dubbed the Fairchild exception, in order to accommodate the existence of non tortious environmental exposure to asbestos.
+In his judgment, the decisions and reasoning in the judgments in Fairchild and in Barker were discussed by Lord Phillips, who described them in paras 45 and 52 as raising two conundrums in connection with causation, which needed to be solved.
+In the course of her concise judgment, Lady Hale in paras 167 168 referred to the decision in Fairchild as kick[ing] over the hornets nest.
+She added that she f[ound] it hard to believe that their Lordships there foresaw the logical consequence of abandoning the but for test.
+She also mentioned the possibility of overruling Fairchild, but said that Even if we thought it right to do this, Parliament would soon reverse us.
+On one view, that might have been regarded as the best of reasons for overruling Fairchild.
+Lord Brown in para 185 also expressed doubts whether those who decided Fairchild could have appreciated the full implications of their decision.
+Lord Mance put the same point at a rather higher level of principle in para 189, when he referred to the lesson of caution that the history may teach in relation to future invitations to depart from conventional principles of causation.
+At least to a reasonable degree of clarity, these three cases and the 2006 Act have established the extent of an employers liability for damages in relation to an employee who has been exposed to asbestos fibres in the course of his employment and has subsequently developed mesothelioma.
+Problems next arose in connection with the extent of the liability of insurers.
+The general position of insurers in law and in practice is summarised by Lord Sumption in paras 118 119.
+However, the way in which the law had developed in relation to mesothelioma claims by employees against employers raised problems of principle in relation to the liability of the employers insurers.
+Two such problems were decided by the Supreme Court in the so called Trigger litigation, Durham v BAI (Run off) Ltd [2012] 1 WLR 867, and they are explained by Lord Mance and Lord Sumption at paras 16 24 and 137 140 respectively.
+The conceptual difficulties thrown up by the decisions in Fairchild and in Barker were again demonstrated by the discussion in paras 63 66 of Lord Mances majority judgment in Trigger, and by the contrast between his reasoning and that of Lord Phillips, who dissented (and see per Lord Clarke in para 84).
+However, the position is still unclear in a case where an insurer insured an employer for only part of the period of a claimant employees employment, and the employer was either uninsured for the rest of the period, or was insured with an insurer who is now insolvent.
+It is that situation with which this appeal is concerned, and the problem is identified by Lord Mance in his paras 42 44 and by Lord Sumption in his paras 141 142.
+As Lord Mance goes on to explain in paras 44 46, three different approaches are suggested.
+The first is that adopted by the Court of Appeal; the second is that proposed by Lord Mance; the third is that proposed by Lord Sumption.
+We agree with Lord Mance and Lord Sumption that the Court of Appeals analysis cannot be supported.
+It seems to us that they were wrong to conclude that the common law, as laid down by the House of Lords in Barker, had been changed as a result of section 3 of the 2006 Act.
+The section changed the law in this country, because (save perhaps in extreme circumstances) Parliament can, by statute, override the common law as laid down by the courts.
+However, it is clear from the terms of section 3 that it was intended to deal with a specific and limited class of case, namely the liability to employees, who were exposed to asbestos fibres in the course of their employment and subsequently contracted mesothelioma.
+In those circumstances, it seems to us that section 3 cannot be said to have altered the common law: it simply superseded the common law in the circumstances in which it applies.
+That leaves the very difficult question as to which of the two approaches proffered by Lord Mance and Lord Sumption to prefer.
+The difficulty is compounded by the high quality and depth of reasoning in their two judgments.
+Further, it is interesting to note that each of these approaches has its adherents in other jurisdictions, as Lord Mance and Lord Sumption explain in paras 69 and 164 168 respectively.
+Lord Mances solution has a number of attractions.
+First, it is more in line with the Parliamentary approach as demonstrated by section 3 of the 2006 Act, because, unlike Lord Sumptions solution, it ensures that every employee whose employer was insured for any period of his employment, can look to any such insurer who is still solvent for full compensation.
+Secondly, unlike Lord Sumptions solution, it has been supported by one of the parties to this appeal: despite being raised by the court at a reconvened hearing, Lord Sumptions solution has not been adopted by either party.
+We suspect that these two points are not unconnected: the insurance market may fear that, if the court adopts the solution favoured by Lord Sumption, Parliament will intervene as it did following Barker.
+Indeed, such a concern may have been seen by some members of the court in Sienkiewicz as a reason for not reconsidering the decision in Fairchild.
+However, as a matter of principle, having rejected the contention that section 3 has changed the common law, it seems somewhat quaint (although, we accept, not logically inconsistent) to invoke section 3 as a reason for developing the common law in a certain way rather than another.
+Thirdly, Lord Mances solution represents a solution which is far closer to that which the London insurance market has worked out in practice.
+Fourthly, Lord Mances approach does not clash with any of the preceding decisions to which we have referred, while it is, we accept, arguable whether Lord Sumptions solution is consistent with the reasoning of this court in the Trigger litigation.
+Just as in Barker there was a division of opinion as to the reach of the reasoning in Fairchild so there is a difference in this case as to the reach of the reasoning in the Trigger litigation compare Lord Mance at paras 45 and 55 with Lord Sumption at paras 159 161.
+While, like so many points in this area, the issue is not easy, we agree with Lord Sumptions view.
+On the other hand, in favour of Lord Sumptions view, it seems to us rather remarkable for an insurance contract to be construed as rendering the insurer liable for the whole of an employees damages, where, for instance, the employee has been exposed to fibres for the whole of his 40 years of employment and the insurer in question has only provided cover for one of those years. (Or even for a temporary period of two weeks while the employer was considering whether to take out longer term cover.) As Lord Sumption explains, such an approach is inconsistent with the link between risk and premium which lies at the heart of a contract of insurance.
+Yet that is the basis of Lord Mances conclusion.
+Lord Sumptions solution, which involves a pro rata liability, produces no such anomalous result: in the example just given, the insurer would be liable for 1/40 of the employees damages.
+It is true that the apparently anomalous result in the example we have just mentioned is mitigated by Lord Mances view that the employer has to be treated as a self insurer for the 39 years of non insurance, so that the insurer can recover 39/40 of the damages it has to pay from the employer, provided the employer is solvent.
+While impressively reasoned in paras 56 78, Lord Mances view that an insurer could recover a contribution from the employer, his insured (but not set it off against his own liability to the employer under the insurance contract), seems to us to open up a dangerous seam of potential litigation, as an exception is made to another established principle, namely that the respective rights and liabilities of the parties to a contract are governed by their agreement.
+We appreciate that it can be emphasised that that aspect of Lord Mances analysis is strictly limited to cases within the Fairchild exception, or as Lord Hodge has put it, the analysis only applies within the Fairchild enclave.
+Enclaves are however notoriously difficult to police, and experience suggests that judicial attempts at restricting ratios may run into the same danger as when a court emphasises that a particular course is only to be taken in very exceptional circumstances.
+Once a principle is approved by a court (particularly, it may be said, this court), it is quite legitimate, indeed appropriate, for lawyers to invoke it and seek to apply it more generally, if it assists their clients case.
+And here, it may well be argued, this court is invoking a new and wide general equitable power, which is, to put it at its lowest, close to inconsistent with an express contractual term, in order to reconstitute a contractual relationship so as to achieve what it regards as a fair result in a purely commercial context.
+Lord Sumptions analysis, by contrast, turns simply on the interpretation of the relevant contract of insurance, and does not appear to us to have any unfortunate wider ramifications.
+Thus, Lord Sumptions analysis appears to us to do significantly less violence (and we think it probably does no violence) to established legal principles, whereas Lord Mances analysis accords more with current practice and what is likely to be the view of the legislature.
+We accept that the fact that we are in the Fairchild enclave is a reason for favouring what may be said to be the more practical solution.
+However, our preference is in favour of learning what Lord Mance in Sienkiewicz referred to as the lesson of caution that the history of the decisions of the House of Lords and Supreme Court to which we have referred may teach in relation to future invitations to depart from conventional principles, and agree with Lord Sumption.
+But we can readily appreciate why the majority of the court has formed the opposite conclusion.
+In conclusion, it seems to us that it is at least worth considering what lessons can be learnt from the history summarised in this judgment and more fully treated by Lord Mance and Lord Sumption.
+There is often much to be said for the courts developing the common law to achieve what appears to be a just result in a particular type of case, even though it involves departing from established common law principles.
+Indeed, it can be said with force that that precisely reflects the genius of the common law, namely its ability to develop and adapt with the benefit of experience.
+However, in some types of case, it is better for the courts to accept that common law principle precludes a fair result, and to say so, on the basis that it is then up to Parliament (often with the assistance of the Law Commission) to sort the law out.
+In particular, the courts need to recognise that, unlike Parliament, they cannot legislate in the public interest for special cases, and they risk sowing confusion in the common law if they attempt to do so.
+When the issue is potentially wide ranging with significant and unforeseeable (especially known unknown) implications, judges may be well advised to conclude that the legislature should be better able than the courts to deal with the matter in a comprehensive and coherent way.
+It can fairly be said that the problem for the courts in taking such a course is that the judges cannot be sure whether Parliament will act to remedy what the courts may regard as an injustice.
+The answer to that may be for the courts to make it clear that they are giving Parliament the opportunity to legislate, and, if it does not do so, the courts may then reconsider their reluctance to develop the common law.
+For the courts to develop the law on a case by case basis, pragmatically but without any clear basis in principle, as each decision leads to a new set of problems requiring resolution at the highest level, as has happened in relation to mesothelioma claims, is not satisfactory either in terms of legal certainty or in terms of public time and money.
+In the case of mesothelioma claims, there can be no real doubt but if Fairchild had been decided the other way, in accordance with normal common law principles, Parliament would have intervened very promptly.
+That may very well have been a better solution, but it can fairly be said that that observation is made with the wisdom of hindsight.
diff --git a/UK-Abs/test-data/judgement/uksc-2013-0083.txt b/UK-Abs/test-data/judgement/uksc-2013-0083.txt
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+Letham Grange is a neoclassical mansion built in the 1820s, with extensive landscaped grounds.
+In modern times the house was converted into a hotel, and the grounds were laid out as two golf courses.
+The hotel became popular with golfers, and was also used by judges sitting on circuit in the nearby town of Forfar.
+The hotel closed in 2011, but remains known to Scottish judges as the subject matter of a long running legal dispute.
+That dispute has now made its second appearance in the United Kingdoms highest court.
+The hotel and its golf courses (the subjects) were bought in November 1994 by Letham Grange Development Company Ltd (LGDC) for slightly over 2m.
+On 12 February 2001 LGDC sold them to the second appellant, 3052775 Nova Scotia Ltd (NSL), a company based in Canada.
+The consideration recorded in the disposition was 248,100.
+In December 2002 LGDC went into liquidation, and the respondent, Mr Henderson, was appointed as its liquidator.
+The value of the subjects at that time was estimated at about 1.8m.
+In January 2003 NSL granted a standard security (ie a charge) over the subjects in favour of the first appellant, Foxworth Investments Ltd (Foxworth), another company based in Canada.
+Later that year the liquidator began proceedings against NSL in the Court of Session, in which he sought the reduction (ie setting aside) of the 2001 disposition on the grounds that the sale was a gratuitous alienation, an unfair preference or a fraudulent preference.
+The action had a lengthy history.
+Ultimately, the liquidator obtained decree by default in 2009, when NSL failed to be represented at the hearing fixed for the proof (ie trial).
+It is not argued that that decree gives rise to any plea of res judicata in the present proceedings.
+The liquidator then began these proceedings, in which he seeks the reduction of Foxworths standard security.
+His action is brought on the basis that the disposition to NSL was a gratuitous alienation susceptible to reduction under section 242 of the Insolvency Act 1986 (the 1986 Act).
+That section, so far as material, provides that an alienation made by a company within two years of the commencement of its winding up is challengeable by the liquidator, and that on such a challenge being brought, the court shall grant decree of reduction unless, in particular, the alienation was made for adequate consideration: section 242(4)(b).
+Although a proviso to section 242(4) preserves any right or interest acquired in good faith and for value from or through the transferee in the alienation, the liquidator argues that Foxworth cannot bring itself within the scope of that proviso, since it knew, at the time when it obtained the standard security, that LGDC was in liquidation and that the sale by LGDC to NSL was open to challenge under section 242.
+In that regard, reliance is placed on the fact that the relevant decisions of all three companies LGDC, NSL and Foxworth were made by their common director, Mr Liu, who was their directing mind and had full knowledge of all the material circumstances.
+The proceedings are defended primarily on the basis that the sale by LGDC to NSL was made for adequate consideration: in addition to the sale price of 248,100 recorded in the disposition, NSL had, it is claimed, also assumed debts of 1.85m owed by LGDC to Mr Liu and members of his family.
+On that basis, it is argued, Foxworth fell within the scope of the proviso to section 242(4): it had obtained the standard security in good faith and for value.
+The Lord Ordinary, Lord Glennie, held after a nine day proof that the sale of the subjects by LGDC to NSL had been made for adequate consideration.
+Although the price recorded in the disposition was far below the value of the subjects, that price had not, he held, been the entire consideration for the sale: NSL had in addition assumed liability for debts of 1.85m owed by LGDC to Mr Liu and members of his family.
+The disposition had not therefore been susceptible to reduction under section 242.
+It followed that Foxworth had obtained its rights under the standard security in good faith.
+There was no live issue as to whether the standard security had been obtained for value.
+The standard security was therefore not liable to reduction: [2011] CSOH 66; 2011 SLT 1152.
+On the liquidators appeal against that decision, an Extra Division of the Inner House held, after a hearing which lasted six days, that the Lord Ordinary had erred in law: he had not made a finding that the assumption of any debts by NSL had occurred at the time of the sale, and had therefore formed part of the consideration for the sale.
+In the absence of such a finding, it was held, the Lord Ordinary had not been entitled to hold that the alienation of LGDCs property had been made for adequate consideration or, given Mr Lius knowledge of the circumstances, that Foxworth had obtained the standard security in good faith.
+Furthermore, the Extra Division considered that the Lord Ordinary had in any
+event failed to give satisfactory reasons for the factual conclusions which he had reached on the evidence before him, and that the matter was therefore at large for the appellate court.
+On the basis of the material which it considered, the Extra Division held that the sale by LGDC to NSL had been a gratuitous alienation, and that Foxworth had not obtained its rights under the standard security in good faith or for value.
+Decree was therefore granted for the reduction of the standard security: [2013] CSIH 13; 2013 SLT 445.
+The Extra Division did not require to deal with a It may be helpful at this stage to summarise the principal aspects of the cross appeal by Foxworth and NSL against the Lord Ordinarys decision in relation to expenses ([2011] CSOH 104).
+Foxworth and NSL now appeal to this court against the decision of the Extra Division, and also against the Lord Ordinarys decision in relation to expenses.
+An outline of the evidence
+evidence.
+In his evidence, Mr Liu explained that LGDC had been established as a special purchase vehicle for the acquisition of the subjects in 1994.
+He was its sole shareholder.
+The purchase was financed out of loans of over 2.3m made to LGDC by himself, his wife and his parents.
+The loans came from accounts held with Sanwa Bank in Canada. 200,000 was borrowed from the bank, the borrowing being guaranteed by another family company, Coquihalla.
+A contemporary letter dated 4 November 1994 from Mr Gardner, a partner in MacRoberts, the solicitors acting for LGDC in connection with the purchase, confirmed that he had received a transfer of 1.9m from Sanwa Bank in Canada and a further 350,000 from Mr Lius father.
+Mr Liu also produced letters sent by himself, as a director of LGDC, to his wife and his parents, setting out the amounts which each of them had lent to LGDC and the terms as to repayment.
+A similar letter to Coquihalla was also produced.
+The letters purport to have been signed by Mr Liu and the recipients on various dates in December 1994.
+A fax dated 2 December 1994, containing the same details as to the loans, was also produced, which Mr Liu said had been sent to Mr Gardner after he had requested such details.
+The borrowing from Sanwa was due to be repaid in October 2000.
+By then it amounted to 248,100 inclusive of interest.
+In his evidence, Mr Liu said that LGDC was at that time in dispute with its former accountants, and did not have accountants who could properly record an injection of funding into the company.
+In those circumstances he decided that the easiest way to repay Sanwa would be for LGDC to sell the subjects to another vehicle company for the amount required.
+The new vehicle company was NSL.
+In relation to this evidence, the Lord Ordinary observed that Mr Liu did not explain in detail, perhaps because he was never asked, why the sum could not have been advanced to LGDC as a loan.
+The absence of accountants did not appear to him to be a credible explanation, given the lack of formality surrounding the initial family loans to LGDC.
+The Lord Ordinary commented that the reason for the transaction remained a mystery.
+According to Mr Liu, he was told by Mr Gardner that the proposed price was not enough, since it did not reflect the value of the subjects.
+Mr Liu responded that, if the cash price was not enough, he would have NSL assume the liability to repay part of the sums lent by himself and his family to LGDC.
+After Mr Gardner confirmed in writing that 248,100 was not enough, Mr Liu agreed with his wife and parents that NSL would assume LGDCs liability to the extent of 1.85m.
+He did not tell Mr Gardner that the assumption of liability had occurred.
+Mr Liu gave unchallenged evidence that, following the sale to NSL, the sums due to Sanwa in respect of the Coquihalla loan were repaid.
+Mr Liu accepted in cross examination that he and his wife and parents made claims in February 2003 in the liquidation of LGDC, in respect of the loans described in the letters dated December 1994, which were excessive if, as he claimed, liability for 1.85m of the debts had been assumed by NSL.
+He stated that a mistake had been made by Brodies, the solicitors acting on his behalf.
+He had not corrected the mistake when he signed his claim form.
+The claims were subsequently adjusted so as to exclude the part of the loans which was said to have been assumed by NSL.
+The adjusted claims were rejected by the liquidator in their entirety, with the consequence that Brodies were unable to move a motion that a new liquidator should be appointed.
+Mr MacPherson, the solicitor at Brodies who prepared the claims, was not called as a witness, and in those circumstances the Lord Ordinary did not accept that the claims had been the result of a mistake on his part.
+A letter from Mr Gardner dated 7 February 2001 was produced.
+In the letter, Mr Gardner noted that LGDC was between accountants, and advised that if the transfer of the subjects was at a figure under its true value, then such a transfer could be attacked in the future by any liquidator of [LGDC].
+The disposition was executed by MacRoberts, as the company secretaries of LGDC, on 12 February 2001.
+A letter from NSL to LGDC, dated 28 February 2001, was also produced.
+It acknowledged that, in addition to the purchase price, NSL would also assume 1.85m of debt owed by LGDC to the Liu family.
+The letter was signed by Mr Liu using the name J Michael Colby.
+He explained in evidence that he had decided to use a western name when conducting business in the West, as he felt that he was at risk of discrimination as an ethnic Chinese.
+Resolutions of NSL dated 26 January and 7 February were also produced.
+The former stated that NSL would purchase the assets of LGDC for 248,100.
+The latter stated that NSL would further assume 1,850,000 UK Pound Sterling of extra other debt liability of [LGDC] to the Liu family.
+According to Mr Lius evidence, NSLs acquisition of the subjects was financed by a loan of 300,000 advanced to it by Foxworth.
+A standard security in respect of the loan was executed but was not registered.
+In 2003 Foxworth assumed liability for debts totalling 1.7m owed by NSL to the Liu family.
+A fresh standard security was then executed and registered in respect of a personal bond for 2m, comprising the 1.7m of debt and the earlier loan of 300,000.
+That is the standard security challenged in the present proceedings.
+Evidence was also given on behalf of Foxworth and NSL by a number of other witnesses.
+Mr Lius son, who had been involved in running the family business, was called to answer allegations that he had destroyed records relating to LGDC and NSL.
+The Lord Ordinary records that he struck me as an honest witness and on these matters I accept his evidence.
+Another director of NSL gave evidence, but her recollection of that companys taking over loans from LGDC was uncertain, and the Lord Ordinary did not feel able to place reliance upon it.
+Mr Lius wife and parents gave evidence that they left the running of the familys business interests to him.
+They confirmed that they had lent money for the purpose of LGDC acquiring the subjects, and that they had been told about, and had agreed to, NSL assuming responsibility for their loans.
+In relation to those events, however, the Lord Ordinary did not regard their evidence as providing independent support for Mr Lius account.
+Mr Gardner also gave evidence.
+In relation to the purchase of the subjects by LGDC, he confirmed sending the letter dated 4 November 1994.
+There was never any doubt in his mind that the 2m or so that he received was provided by or on behalf of members of the Liu family.
+He had written to Mr Liu on 7 November 1994, requesting details of the breakdown of the funds.
+He said that he had not received a response.
+He had no recollection of receiving the fax dated 2 December 1994 or the letters from LGDC to Mr Liu and his wife and parents dated December 1994.
+The Lord Ordinary commented that it would be surprising if Mr Gardner had received no response to his request: it was not consistent with his general approach to this matter for him simply to let the matter drop.
+Mr Gardner also spoke to a fax which he had received from Mr Liu dated 23 February 1995 in which Mr Liu said that the split of the loans was to be between eight members of his family.
+Mr Liu had described this as a thought which was never implemented.
+Mr Gardner was not aware of anything happening which suggested otherwise than that the arrangements described in the 1994 letters were entered into and remained in operation.
+In relation to the sale of the subjects by LGDC to NSL, Mr Gardner confirmed having sent the letter dated 7 February 2001, warning of the risk which would result from a sale at an undervalue, following a discussion of that risk with Mr Liu.
+There had been mention of the loans during his discussions with Mr Liu in February 2001, but he had not been told that the consideration included the assumption of the loans.
+Evidence was also given by the liquidator and members of his staff.
+The letters dated December 1994, recording the loans made to LGDC by members of the Liu family, did not feature in the files of LGDC.
+Nor did the letter dated 28 February 2001 from NSL to LGDC, relating to the assumption of the loan.
+Error of law?
+As I have explained, the critical issue under section 242(4)(b) is whether the alienation was made for adequate consideration.
+That was clearly understood by the Lord Ordinary.
+He summarised the liquidators case as being that the disposition of the subjects by [LGDC] to NSL was not made for adequate consideration: in particular, the consideration of 248,100 referred to in the disposition was not adequate consideration having regard to the value of the subjects.
+He summarised the case advanced on behalf of Foxworth and NSL as being that the disposition was not at an undervalue because the price of 248,100 stated in the disposition did not represent the whole consideration: in particular, the consideration for the disposition included the assumption of debt, namely 1.85m owed by LGDC to members of Mr Lius family.
+He summarised the liquidators response as being that he challenged the assertions made by Mr Liu about the 1994 loans, and challenged the defenders case that in 2001, as part of the consideration for the subjects, NSL assumed the debt which the company owed to the Liu family.
+The liquidator sought to establish, in particular, that the documentation relating to the assumption of the loan had not been prepared on the dates which it bore, but had been produced subsequently in order to support a false case.
+is in the following terms: In relation to this matter, the critical paragraph in the Lord Ordinarys opinion It is not clear to me on the evidence when the documentation purporting to evidence the assumption of the loan by NSL was created, or indeed when the decision was made that the amount of debt assumed would be 1. 85 million rather than some other figure.
+Mr Liu acted for both LGDC and NSL (albeit under different names) and also took the necessary decisions so far as concerned the loans from members of his family.
+To that extent, once the decision was made, the documentation could follow later.
+It was not suggested in argument that the subsequent creation of documents to record the assumption of the loan as part of the consideration for the sale in any way invalidated what had occurred if the decision had in fact been made to assume part of the loan as part of the consideration.
+I find that that decision had been made. (para 90) The Lord Ordinary accordingly concluded that the sale from LGDC to NSL was made for adequate consideration and was not a gratuitous alienation. (para 92)
+There was no argument before the Lord Ordinary to the effect that, even if the debt assumption had taken place, that had occurred at a point in time which was too late for it to qualify as consideration.
+Before the Inner House, however, that argument was advanced by the counsel and solicitors newly instructed on behalf of the liquidator.
+It was accepted by the court.
+In relation to para 90 of the Lord Ordinarys opinion, Lady Paton, with whose reasoning the other members of the court agreed, stated at paras 75 76: The consideration allegedly given in exchange for the granting of the disposition of Letham Grange to NSL required to be enforceable (ie able to be vindicated) at the time when the disposition was granted on 12 February 2001.
+On the Lord Ordinarys own findings, however, there was no enforceable obligation binding NSL to repay Liu family loans as at that date.
+Taken in context, I am quite unable to read the words part of the loan in the penultimate line of para 90 of the Lord Ordinarys opinion as being referable to the precise or calculated figure of 1.85 million but, even if they were so read, I doubt whether, in the absence of any documentation whatsoever, the decision in question could properly be regarded as any more than a statement of intent on the part of Mr Liu.
+It was not open to the Lord Ordinary to accept that consideration was given in exchange for the disposition granted in the form of some vague obligation undertaken by NSL to repay Liu family debt.
+In relation to the first point made by Lady Paton, the Lord Ordinary was aware that an obligation on the part of NSL could only constitute part of the consideration for the sale if it was undertaken as the counterpart of the obligations undertaken by LGDC in relation to the sale.
+He distinguished at para 90 between the question, on which those then acting for the liquidator had focused, whether the documents evidencing the obligation existed at the time of the sale or were created subsequently, and the question whether the decision had in fact been made to assume part of the loan as part of the consideration.
+He answered the latter question in the affirmative.
+It is possible that, when he referred to part of the loan, he meant some wholly indeterminate amount, but only if he had failed to realise that a decision to assume liability for an amount which was entirely unquantified, and incapable of quantification, would not give rise to an enforceable obligation.
+I would decline to attribute an elementary error to an experienced judge if his words can reasonably be understood in a different sense, as they can in the present case, where the 1.85m was indeed part of the loan.
+It might be said that the Lord Ordinary could have dealt with this matter more clearly, but it is understandable that his opinion should have dealt in greatest detail with the points on which the parties had joined issue: in particular, whether the documents had been created on the dates that they bore, and whether, rather than when, any obligation was undertaken.
+In relation to Lady Patons second point, Mr Liu gave evidence to the effect that a decision to assume the indebtedness had been taken on behalf of NSL, with the agreement of the relevant members of his family, before the sale was completed.
+Subject to the separate criticism that he failed to deal adequately with the evidence, to which I shall turn next, the Lord Ordinary was entitled to accept that evidence and, on that basis, to find that an enforceable obligation had been undertaken, rather than a mere statement of intent.
+Failure to deal adequately with the evidence?
+Lady Paton described the way in which the Lord Ordinary had erred in his approach to the evidence at para 78 of her opinion: He did not take the final step of (i) clearly recognising that there was a significant circumstantial case pointing to a network of transactions entered into with the purpose of keeping Letham Grange (valued at 1.8 million) out of the control of the liquidator, and (ii) explaining why, nevertheless, he was not persuaded that the liquidator should succeed.
+Rather the Lord Ordinary dismissed or neutralised individual pieces of evidence without, in my view, giving satisfactory reasons for doing so, thus dismantling the component parts of any circumstantial case which was emerging from the evidence, but without first having acknowledged the existence and strength of that circumstantial case, and then explaining why he rejected it.
+Her Ladyship then gave five examples of this erroneous approach.
+I shall discuss those examples shortly.
+It may however be helpful to preface
+that discussion with some general observations.
+The Lord Ordinary was correct to approach the evidence as a whole with an open mind, rather than beginning with a presumptive conclusion in favour of the liquidators case, and then explaining why he was nevertheless persuaded that the liquidator should not succeed.
+He understood what the liquidators case was, as I have already indicated, and he set out the matters advanced on behalf of the liquidator in support of that case, as I shall explain.
+The fact that he found the liquidators circumstantial case less impressive than the Extra Division reflected a careful and nuanced assessment of the evidence, and an understanding of the commercial realities of the situation with which the case was concerned.
+The circumstantial case which impressed the Extra Division was superficially attractive, if one important circumstance, which I shall shortly come to, was disregarded.
+LGDC, a company owned and controlled by Mr Liu, went into liquidation.
+Less than two years earlier, at a time when it was in financial difficulties, all its fixed assets were transferred to another company, NSL, owned and controlled by the same individual.
+Lady Paton stated at para 85 that the evidence viewed as a whole gave rise to the inference which the liquidator contended for, that is to say, that the transactions in 2001 and 2003 were carried out neither in good faith nor for value, with a view to placing the valuable heritable property beyond the reach of the liquidator, thus defeating the claims of LGDCs creditors (para 77).
+One difficulty with this analysis is that it is not clear from the evidence that LGDC was in financial difficulties in 2001, as Lady Paton states at paras 2 and 16.
+Although, as with many companies, a balance sheet would have shown that its liabilities exceeded its assets, there was no evidence that it was in trading difficulties at that time, and Mr Liu gave unchallenged evidence that the winding up occurred as a result of subsequent events.
+There is however a more fundamental difficulty.
+If LGDC was heavily indebted to Mr Liu and his family, that circumstance would cast an entirely different complexion upon the inherent likelihood of the liquidators case.
+In that situation, it would make little commercial sense for the indebtedness to remain entirely with LGDC after its fixed assets had been transferred to NSL.
+If the assets were to be shifted to NSL, the obvious step was to ensure that a substantial part of the indebtedness was also transferred to that company.
+When one further considers (1) that Mr Liu was specifically advised that a transfer of the assets to NSL at an undervalue would be open to challenge, (2) that the assumption of the debt by NSL cost Mr Liu and his family nothing, and (3) that Mr Liu was found by the Lord Ordinary to have an acute business intelligence, it would if anything be surprising if the consideration for the sale to NSL had not included the assumption of debts owed to the Liu family.
+The Lord Ordinarys opinion demonstrates an awareness of this point, which appears to have eluded the Extra Division.
+At para 83 of his opinion, the Lord Ordinary said: Although there are questions as to the timing of the letters of 5 December 1994 evidencing the Liu family loan, and equally of the 8 December 1994 letter evidencing the Coquihalla loan, the fact of the loan itself was not challenged.
+This is of the utmost importance in assessing much of the other evidence in the case.
+It is clear that there was a loan from the Liu family in the total amount shown by the December 1994 letters.
+This is consistent with Mr Gardner's correspondence at the time.
+He may not have known of the breakdown of the loan between the various family members and it is clear that he did not but he knew that the loan to LGDC to enable it to purchase Letham Grange had been arranged by Mr Liu and came principally from Liu family sources. (emphasis supplied) He later observed: There is no doubt that he [Mr Liu] has an acute business intelligence.
+If Mr Gardner pointed out a possible problem with the sale, why would he not try to address that problem? Procuring that NSL, a family company, relieved LGDC, another family company, of part of its liability to repay loans to members of the family, cost him nothing. (para 88)
+Those passages might be contrasted with para 101 of Lady Patons opinion: I should add that it is possible that the Lord Ordinary was influenced to some extent by his understanding that the original 2 million which was paid for Letham Grange in 1994 was said to be Liu family money.
+Nevertheless such a consideration, if well founded (and on the state of the evidence I reserve my position on that matter) does not affect the need to recognise the strong circumstantial case referred to in this opinion.
+It appears from this passage that the Extra Division not only declined to accept the unchallenged evidence of the loans to LGDC (loans whose existence was also accepted on behalf of the liquidator before this court), but also failed to grasp its relevance to the case, including the question whether there was in fact a strong circumstantial case.
+The reason for the sale
+As I have mentioned, Lady Paton gave five examples of the Lord Ordinarys dismissing or neutralising the parts of the evidence which constituted the component parts of the circumstantial case advanced on behalf of the liquidator, without giving satisfactory reasons for doing so.
+First, in relation to the reason for LGDCs selling the subjects to NSL rather than, for example, obtaining a further loan from the Liu family, Lady Paton was critical of a passage in the Lord Ordinarys opinion in which he stated: I find the reason for the sale in 2001 to NSL somewhat elusive.
+As I have said, according to Mr Liu it was because the Coquihalla loan required to be repaid and LGDC did not have any money or the means of raising it.
+A loan from a family member or a third party might have been the answer, but without accountants Mr Liu could not properly record a loan in the books of the company.
+Therefore it was agreed to raise the money by selling the subjects to NSL.
+I find this explanation difficult to believe.
+The 1994 loans were not properly recorded originally, and there was no reason why an informal arrangement could not have been made.
+But ultimately this does not matter.
+The fact is that LGDC did sell the subjects to NSL, whatever might have been the true reasons for that.
+So the elusiveness of the reasons for the transaction do not impact upon this part of the story.
+A sale was arranged to NSL. (para 86) Lady Paton comments (para 80): On the contrary, the lack of a sound reason for the sale in 2001 was a highly significant piece of evidence which should have been kept in mind when assessing the overall picture (including credibility), rather than being dismissed at an early stage as unimportant.
+I am unable to agree with this criticism of the Lord Ordinary.
+He began his discussion of the case by stating that it turns on the credibility of Mr Liu (para 81).
+He then listed a number of criticisms of Mr Lius credibility which were well made and, in an ordinary case (if there is such a thing) would likely be regarded as fatal to the defenders case.
+These included difficulty in seeking to understand the underlying purpose of the sale to NSL.
+This was one of a number of matters which were formidable obstacles for the defenders to overcome (para 82).
+It is clear, therefore, that he appreciated the significance of the absence of a clear explanation for the sale when assessing credibility.
+The Lord Ordinary then considered the significance of the unchallenged and overwhelming evidence that there had been a loan from the Liu family to LGDC in the total amount shown in the December 1994 letters.
+This he rightly described as being as of the utmost importance in assessing much of the other evidence in the case (para 83).
+That was so for a number of reasons.
+First, since that evidence was not in doubt, it provided a sound foundation for the assessment of the evidence which was disputed, in so far as it bore upon it.
+Secondly, as I have explained, it affected the inherent probability of Mr Lius claim that part of the indebtedness of LGDC to the Liu family had been assumed by NSL at the time when the fixed assets of the former company were sold to the latter.
+Thirdly, it was also relevant to an assessment of the demeanour of Mr Liu and the manner in which he answered questions put to him by counsel for the liquidator: put shortly, if the loans were genuine, it followed that Mr Liu had a genuine grievance against the liquidator (who had previously declined to accept the Liu familys claims in the liquidation, and had in consequence avoided being removed from office), which could explain a reluctant and almost truculent manner.
+In the light of his finding that the loans had been made in the amounts shown in the 1994 letters, and the implications of that finding which I have explained, the Lord Ordinary concluded his assessment of credibility by finding that Mr Liu was endeavouring to tell the truth, so far as concerned the essentials of his case, and that the parts of his evidence that concerned those essentials could be relied on (para 84).
+Having made that crucial finding after, as I have explained, taking account of the lack of a clear explanation for the sale to NSL the Lord Ordinary then went through the history of events in chronological order.
+It is in that context that he again discussed the sale to NSL, in the passage which was criticised by Lady Paton.
+He had previously discussed in some detail the various questions which arose in relation to the reason for the sale (paras 77 79).
+He noted that Mr Liu was not cross examined in depth on the rationale for the sale to NSL or on other ways in which the debt to Sanwa might have been repaid: Mr Liu was not directly challenged along the lines that there was no commercial purpose (para 76), was never asked why [the 1.85m] could not have been advanced by way of a loan (para 77), and was not asked about this [why NSL was introduced if it did not have the money to pay LGDC] in any detail (para 78).
+He also noted that the reasons behind it [the fact that Foxworth did not assume the 1.85m debt] were not explored in evidence (para 79).
+In the context in which the passage in question appeared in his opinion, the Lord Ordinary was correct to say in para 86 that the reason for the sale did not matter.
+He had by then decided that the Liu family had lent over 2m to LGDC in 1994, and there was no doubt that LGDC had sold the subjects to NSL in 2001.
+What was important at that stage of the analysis was the amount of the consideration for the sale, and in particular whether it included the assumption of 1.85m of the loan.
+The answer to that question did not depend upon the reason for the sale, but essentially upon the credibility of Mr Liu.
+In so far as the elusiveness of the reason for the sale bore upon Mr Lius credibility, it had already been taken into account.
+The claims in the liquidation
+Lady Patons second example of the neutralising of a piece of evidence was a comment made by the Lord Ordinary in relation to the claims submitted on behalf of the Liu family in the liquidation of LGDC, which did not initially take account of the assumption of part of the loan by NSL: It seems to me to be perfectly possible that Mr Liu, in instructing his lawyers in that case, did not at that moment put two and two together so as to realise that the assumption of 1.85 million of the loan by NSL had the effect of reducing the debt due by LGDC to the family members. (para 91) Lady Paton observed that Mr Liu had not himself put forward that explanation, and stated: In my view, it is significant that Mr Liu failed to discount the Liu family claims This strand of evidence was important, and tended to suggest that the consideration given for Letham Grange had indeed been 248,100. (para 81)
+The Lord Ordinary did not overlook the significance of this evidence.
+In his discussion of the matters adverse to Mr Lius credibility, he said: Most damning of all, perhaps, is the fact that when presenting a claim in the winding up and pressing his case in the sheriff court proceedings in 2003, Mr Liu instructed his lawyers as to the amount of the family loan outstanding to date without any hint of there having been an assumption of part of this debt by NSL.
+This was a crucial element in the calculation of the sums claimed in the winding up.
+If NSL had assumed part of the debt, the sums owing by LGDC would have been pro tanto reduced. (para 82)
+When the Lord Ordinary referred to this matter again in the passage criticised by Lady Paton, he had by then concluded, after taking this matter into account, that Mr Liu was nevertheless a credible witness on the essential matters in dispute.
+The Lord Ordinary had also concluded, by that stage, that the assumption of the debt formed part of the consideration for the sale.
+He then stated, in the earlier part of the paragraph criticised by the Extra Division: In coming to this conclusion I have taken account of all the various criticisms of Mr Lius evidence, including in particular his failure to take account of the assumption of the loan when first presenting his case in the sheriff court proceedings (para 91).
+He need not have gone on to suggest a possible explanation for Mr Lius failure to tell his lawyers about the assumption of the debt until 2003: at that stage of his analysis of the case, it did not matter.
+The fact that he suggested an explanation one not entirely unrelated to Mr Lius evidence that he was a busy man with business interests around the world (para 74) does not vitiate his conclusion.
+Changes in Mr Lius position
+Lady Patons third example of the dismissal of a significant piece of evidence concerned changes in Mr Lius account of what he had told Mr Gardner about the consideration for the sale.
+The Lord Ordinary, it was said, did not expressly refer to these changes, and appeared to take no account of Mr Lius ultimate position that he deliberately did not tell Mr Gardner about the enhanced consideration (para 82).
+I am unable to agree with this criticism.
+The Lord Ordinary set out in full the
+explanation given by Mr Liu in his witness statement, which he adopted as part of his evidence in chief.
+That included the statement: It was agreed with each of my family members that liability to repay 1,850,000 of the total sum lent would be assumed by [NSL] and I told Dan Gardner that. (para 42) The Lord Ordinary emphasised the final phrase.
+He then noted that, in cross examination, Mr Liu gave evidence that he told Mr Gardner that NSL would assume responsibility for the loans, but did not tell Mr Gardner the amount of the loans or that the assumption of liability had already occurred.
+The Lord Ordinary noted that, in re examination, Mr Liu said that what he had told Mr Gardner was that he would adjust the price to what was necessary.
+The Lord Ordinary returned to the point in his discussion of credibility, noting as one of the points made by counsel for the liquidator that Mr Liu did not tell Mr Gardner in terms that the consideration for the sale included an assumption by NSL of 1.85 million of the Liu family debt owed by LGDC (para 82).
+As I have mentioned, he later said that in coming to his conclusion he had taken account of all the criticisms of Mr Lius evidence (para 91).
+The Lord Ordinary was therefore aware that Mr Lius position in relation to what he had told Mr Gardner changed during his evidence, and he took that into account.
+He clearly regarded it as significant that Mr Liu finally accepted that he had not told Mr Gardner that the loan had been assumed as part of the consideration.
+The changes in position were of course relevant to the credibility and reliability of Mr Lius evidence.
+The Lord Ordinary discussed that matter fully, and acknowledged the strength of the points made.
+Nevertheless, as he said, having seen Mr Liu over a considerable period in the witness box, and having heard him at length under persistent and skilful cross examination, he formed the view that his evidence was credible and reliable so far as concerned the essentials of the case (para 84).
+It is true that the Lord Ordinary did not refer expressly to a passage during Mr Lius cross examination, quoted by Lady Paton, in which he gave what appears to have been a rather emotional answer to the effect that the reason he had not told Mr Gardner that the debt had been assumed was because the deeds had already been prepared by then, and he felt that he would look like a fool if he asked for them to be corrected at that stage.
+There is however no reason to suppose that this passage in the evidence was overlooked, merely because it was not expressly mentioned.
+An appellate court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration: Thomas v Thomas 1947 SC (HL) 45, 61; [1947] AC 484, 492, per Lord Simonds; see also Housen v Nikolaisen [2002] 2 SCR 235, para 72.
+The discrepancy between the 1994 and 1995 correspondence
+Lady Patons fourth example of the dismissal of significant evidence was the Lord Ordinarys treatment of the discrepancy between the letters of December 1994, attributing the loan to LGDC to four members of the Liu family, and the fax of 23 February 1995, where eight members of the family were mentioned.
+Lady Paton commented that the Lord Ordinary did not draw the obvious inference that the letters did not exist in 1994 or 1995, when the letters were not shown to Mr Gardner, or in 2002, when the letters were not found by the liquidator in the records of LGDC, but were compiled by Mr Liu for his own purposes.
+The Lord Ordinary chose in effect to dismiss the potentially significant discrepancy by making the assumption that the money lent was all Liu family money, and taking the view that nothing turned on whether the letters were written in 1994 or some time later (para 83).
+The Lord Ordinary discussed at length the evidence relating to the December 1994 documents and the fax of 23 February 1995 (paras 35 37 and 54 56).
+I have already summarised some of that evidence.
+He noted fully the points made by counsel for the liquidator: The originals of such letters had not been produced.
+No explanation had been given for this.
+Being written in English, they cannot have been intended primarily for the benefit of the members of the family, whose native language was Chinese and who had very little English.
+They must have been intended as a record of the loans to LGDC.
+Yet they were not passed to MacRoberts (who acted as company secretary) in 1994.
+They were not found in the books and records of the company at the commencement of the liquidation.
+Nor were they shown to Mr Gardner when he asked about the loans.
+Even when he asked for particulars of the loans, he was not told of these details.
+Indeed, in the early months of 1995 Mr Gardner was being told that the funds made available to LGDC had come from different lenders (including the family members) and in different amounts. (para 67)
+The Lord Ordinary discussed the issue again when he considered the credibility of Mr Lius evidence, stating that he accepted that there was some doubt about when the 1994 letters were produced, since they were not shown to Mr Gardner at the time of LGDCs purchase of Letham Grange in circumstances where one would one have expected them to have been shown to him had they been in existence at that time (para 82).
+But he also observed: On the other hand, although there are questions as to the timing of the letters of 5 December 1994 evidencing the Liu family loan, and equally of the 8 December 1994 letter evidencing the Coquihalla loan, the fact of the loan itself was not challenged. (para 83)
+The Lord Ordinary was correct to take the doubt about the date of the letters into account when assessing Mr Lius credibility, as he plainly did: it was one of the formidable obstacles to be overcome.
+But he was also correct to identify as the central question whether the loan had been made, rather than whether particular evidence vouching the loan was all that it bore to be.
+In relation to that question, in the critical paragraph of his opinion, the Lord Ordinary observed that although there were questions as to the timing of the letters evidencing the Liu family loan, the fact of the loan itself was not challenged.
+It was clear that there was a loan from the Liu family in the total amount shown by the letters.
+As the Lord Ordinary explained, that was consistent with Mr Gardners evidence and his correspondence of that time (para 83).
+The Lord Ordinary concluded, in relation to this chapter of the evidence: I am satisfied that the loans were made by members of the Liu family to LGDC, in the amounts evidenced in the December 1994 letters, for the acquisition of Letham Grange.
+It is clear from the evidence that all decisions about this were effectively taken by Mr Liu.
+His family members relied on his advice.
+I am not persuaded that the split between the family members was necessarily decided upon by the time of the transaction (it will be recalled that different splits and, indeed, different lenders were mentioned at various times) and it may, therefore, be that the letters of 5 and 8 December 1994 were written and signed some time later.
+But nothing turns on this.
+The loans were made to LGDC and were enforceable according to the terms of the letters the fact that letters are back dated does not invalidate them in so far as they purport to be a record of a transaction. (para 85)
+Against the background I have described, the criticisms levelled at the Lord Ordinary in relation to this matter appear to me to miss their target.
+He considered the timing of the letters with care, particularly for the impact it might have upon the credibility of Mr Lius evidence.
+The obvious inferences which he is criticised for failing to draw do not appear to me to be obvious.
+His assumption that LGDCs purchase of the subjects had been financed by loans from the Liu family reflected unchallenged evidence, which for some unexplained reason the Extra Division declined to accept.
+His conclusion that nothing turned on the date when the letters were written was one he was entitled to reach.
+In essence, his doubts as to the date of the loan letters, in a situation where the existence of the loans themselves was not challenged, did not cause him to conclude that the consideration for the subsequent sale of the subjects had not included the assumption of part of the debt resulting from those loans.
+Brevity
+Lady Patons final example of the neutralising of a potentially significant strand of evidence is the Lord Ordinarys brief reference to Mr Gardners evidence about the disposition from LGDC to NSL.
+In the passage in question, the Lord Ordinary stated: Mr Gardner gave evidence in detail about the disposition from LGDC to NSL in February 2001.
+The matter is covered in paras 15 27 of his witness statement upon which he elaborated in his oral evidence both in chief and in cross examination.
+I do not need to set out that part of his evidence verbatim here. (para 57) Lady Paton commented: I consider, however, that the content of Mr Gardners evidence relating to the 2001 disposition was significant and at times startling, painting a picture of a client (Mr Liu) who was not being straightforward with his own solicitor.
+While there might be no need to set out Mr Gardners evidence verbatim, an indication of the content of his evidence would have presented a more balanced picture. (para 84)
+Although the Lord Ordinary did not set out Mr Gardners evidence relating to the disposition verbatim, he nevertheless gave not merely an indication of its content, but a detailed account of it, in paras 58 64 of his opinion.
+That account covered the aspects of this chapter of Mr Gardners evidence which were most damaging to Mr Liu.
+These included (1) his not having told Mr Gardner that J Michael Colby, whose signature appeared on the acceptance of the offer of sale, was himself; (2) his not having told Mr Gardner that liability for the 1.85m debt had been assumed as part of the consideration for the sale, and (3) his having in consequence misled Mr Gardner as to the amount of stamp duty payable (a matter which was subsequently rectified).
+In the circumstances, I cannot see any substance in this criticism of the Lord
+Ordinary.
+His treatment of this chapter of evidence was not unbalanced, and did not indicate any failure to understand it or to take it into account.
+More generally, he gave careful consideration to the arguments and evidence adduced on behalf of the liquidator, and explained why he nevertheless concluded that the liquidators case should be rejected.
+I would add that, in any event, the validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence.
+The trial judge must of course consider all the material evidence (although, as I have explained, it need not all be discussed in his judgment).
+The weight which he gives to it is however pre eminently a matter for him, subject only to the requirement, as I shall shortly explain, that his findings be such as might reasonably be made.
+An appellate court could therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judges conclusion was rationally insupportable.
+Additional observations
+The principles governing the review of findings of fact by appellate courts were recently discussed by this court in McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477; 2013 SLT 1212.
+There is no need to repeat what was said there.
+There may however be value in developing some of the points which were made in that judgment.
+In the present case, the Extra Division cited earlier authorities of the highest standing.
+Lady Paton referred in particular to the well known dictum of Lord Thankerton in Thomas v Thomas 1947 SC (HL) 45, 54; [1947] AC 484, 488: The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court.
+As I have explained, Lady Paton found the reasons given by the trial judge to be unsatisfactory; and I have also explained why I take a different view.
+Her Ladyship also cited a dictum from the opinion of Lord President Hamilton in Hamilton v Allied Domecq plc [2005] CSIH 74; 2006 SC 221, para 85, concerned with the situation where findings of fact are unsupported by the evidence and are critical to the decision of the case.
+She considered that that test also was met in the present case (para 89).
+As this court explained in McGraddie at para 31, however, that dictum was concerned with the situation where a critical finding has been made which is unsupported by any evidence, rather than the situation where the appellate court disagrees with the overall conclusion reached by the Lord Ordinary upon the evidence.
+It was therefore not in point in the present case.
+Lady Paton also cited the dictum of Lord Macmillan in Thomas v Thomas 1947 SC (HL) 45, 59; [1947] AC 484, 491, where, after mentioning some specific errors which might justify the intervention of an appellate court, his Lordship added that the trial judge may be shown otherwise to have gone plainly wrong.
+As Lady Paton noted, that dictum was cited by Lord Hope of Craighead in Thomson v Kvaerner Govan Ltd [2003] UKHL 45; 2004 SC (HL) 1, para 16, where he also cited Lord Shaw of Dunfermlines statement in Clarke v Edinburgh and District Tramways Co Ltd 1919 SC (HL) 35, 37 that the duty of the appellate court was to ask itself whether it was in a position to come to a clear conclusion that the trial judge was plainly wrong.
+Lady Paton considered that that test also was met in the present case (para 89).
+Given that the Extra Division correctly identified that an appellate court can interfere where it is satisfied that the trial judge has gone plainly wrong, and considered that that criterion was met in the present case, there may be some value in considering the meaning of that phrase.
+There is a risk that it may be misunderstood.
+The adverb plainly does not refer to the degree of confidence felt by the appellate court that it would not have reached the same conclusion as the trial judge.
+It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion.
+What matters is whether the decision under appeal is one that no reasonable judge could have reached.
+In Thomas itself, Lord Thankerton, with whose reasoning Lord Macmillan, Lord Simonds and Lord du Parcq agreed, said that in the absence of a misdirection of himself by the trial judge, an appellate court which was disposed to come to a different conclusion on the evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judges conclusion: 1947 SC (HL) 45, 54; [1947] AC 484, 487 488.
+Lord du Parcqs speech is to similar effect.
+Distinguishing the instant case from those very rare occasions on which an appellate court would be justified in finding that the trial judge had formed a wrong opinion, he said: There are, no doubt, cases in which it is proper to say, after reading the printed record, that, after making allowance for possible exaggeration and giving full weight to the judge's estimate of the witnesses, no conclusion is possible except that his decision was wrong. (1947 SC (HL) 45, 63; [1947] AC 484, 493)
+Viscount Simon, while disagreeing as to the result of the appeal, also emphasised the need for the appellate court to consider whether the trial judges decision could reasonably be regarded as justified: If there is no evidence to support a particular conclusion (and this is really a question of law), the appellate court will not hesitate so to decide.
+But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies is entitled to great weight. (1947 SC (HL) 45, 47; [1947] AC 484, 486).
+These dicta are couched in different language, but they are to the same general effect, and assist in understanding what Lord Macmillan is likely to have intended when he said that the trial judge might be shown otherwise to have gone plainly wrong.
+Consistently with the approach adopted by Lord Thankerton in particular, the phrase can be understood as signifying that the decision of the trial judge cannot reasonably be explained or justified.
+It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.
+This approach is consistent, as I have explained, with the Scottish authorities, and also with more recent authority in this court and in the Judicial Committee of the Privy Council (see, for example, In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1911, paras 52 53, per Lord Neuberger).
+A similar approach has also been adopted by the Supreme Court of Canada (see HL v Canada (Attorney General) 2005 SCC 25; [2005] 1 SCR 401, paras 55 56) and by the United States Supreme Court (see Anderson v Bessemer 470 US 564 (1985), 573 574).
+In the circumstances of the present case, in my opinion the Extra Division had no proper basis for concluding that the Lord Ordinary had misdirected himself or had failed to give satisfactory reasons for the factual conclusions which he reached on the evidence, or for concluding that he had gone plainly wrong.
+It follows that the appeal must be allowed.
+Expenses
+As I have explained, Foxworth and NSL had a cross appeal which the Extra Division did not find it necessary to determine.
+The Lord Ordinary found the liquidator liable to Foxworth and NSL in the expenses of the action, but added a proviso that the order for expenses was not to be enforced without a further order of the court.
+In his opinion, the Lord Ordinary explained that the liquidator had been awarded expenses in the previous proceedings against NSL, and that the award had not been met.
+He was concerned that it might be unjust to allow Foxworth and NSL to enforce an order for expenses against the liquidator when the latter held an unsatisfied order for expenses in his favour in respect of the earlier action.
+It was unclear to the Lord Ordinary, at the time when he considered the matter, whether Foxworth and NSL were under the same control or beneficial ownership.
+The solution which he adopted was to add the proviso.
+He stated in his opinion that, at the hearing of any motion for an order allowing enforcement of the award, he would expect to be provided with information as to (a) whether the order for expenses in the first action had been satisfied, and if not, why not, (b) the ownership and control of the two companies, (c) whether there were any creditors of Foxworth with an interest to support or oppose the motion and, if so, the extent of their claims and the extent of the assets available to meet those claims, (d) whether any such creditors supported or opposed the motion, and (e) anything else of relevance.
+The Lord Ordinarys order in relation to expenses was recalled by the Extra Division.
+In the present appeal, counsel for Foxworth and NSL argued that, in the event that the Lord Ordinarys decision on the substantive issue were to be restored, his decision on expenses nevertheless should not be in so far as it contained the proviso.
+The question whether the payment of an award of expenses in favour of Foxworth could be withheld on account of NSLs failure to pay another award of expenses was governed by the law of compensation which answered the question in the negative and was not a matter of judicial discretion.
+Questions in relation to awards of expenses in the Court of Session are generally best determined by that court.
+In discussion, it was accepted that no prejudice would be occasioned by remitting the question of the expenses of the proceedings in the Outer House to the Lord Ordinary.
+It was accepted that the non payment by NSL of the award made in the previous proceedings can be considered and taken into account, along with all other circumstances relevant to the courts exercise of its discretion, at the stage when an award is made, obviating the potential difficulty raised in the cross appeal.
+Conclusion
+I would accordingly allow the appeal and invite parties to make submissions as to the appropriate form of order.
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+The question at issue on this appeal is what connection must a foreign company have with the United Kingdom to entitle an English court to wind it up, if its centre of main interests (or COMI) is in another member state of the European Union.
+The answer depends on the meaning of two words, economic activity, in EU Regulation 1346/2000 on Insolvency Proceedings.
+The legal framework
+Under section 221 of the Insolvency Act 1986, the English court has jurisdiction under its domestic law to wind up a foreign company.
+However, in the case of companies whose COMI is in another member state of the EU, the exercise of this power is constrained by the Regulation.
+Article 3 of the Regulation provides as follows: Article 3 International jurisdiction 1.
+The courts of the Member State within the territory of which the centre of a debtor's main interests is situated shall have jurisdiction to open insolvency proceedings.
+In the case of a company or legal person, the place of the registered office shall be presumed to be the centre of its main interests in the absence of proof to the contrary. 2.
+Where the centre of a debtor's main interests is situated within the territory of a Member State, the courts of another Member State shall have jurisdiction to open insolvency proceedings against that debtor only if he possesses an establishment within the territory of that other Member State.
+The effects of those proceedings shall be restricted to the assets of the debtor situated in the territory of the latter Member State.
+Where insolvency proceedings have been opened under paragraph 1, any proceedings opened subsequently under paragraph 2 shall be secondary proceedings.
+These latter proceedings must be winding up proceedings. 3.
+The COMI is not a term of art, and is not defined in the body of the Regulation.
+Recital (13), however, recites what is perhaps implicit in the phrase, namely that it should correspond to the place where the debtor conducts the administration of his interests on a regular basis and is therefore ascertainable by third parties.
+Jurisdiction to begin secondary insolvency proceedings in another European jurisdiction is established on a very different basis.
+It depends on the existence of an establishment within its territory.
+An establishment is defined in article 2(h) as any place of operations where the debtor carries out a non transitory economic activity with human means and goods.
+Goods is hardly a satisfactory English word to use in this context.
+It is apparent from the equivalent term in the other language versions that it means the same as assets (biens, Vermgen) in article 3(2).
+The facts
+Olympic Airlines SA was wound up on the direction of the Athens Court of Appeal on 2 October 2009.
+Since then, the main liquidation proceedings have been in progress in Greece.
+The appellants are the trustees of the companys pension scheme.
+Olympic is the principal employer in the scheme and the only employer currently participating in it.
+Under the rules of the scheme, it must be wound up upon the liquidation of Olympic Airlines.
+Upon its winding up, a deficit was ascertained of (in round numbers) 16m, which Olympic is bound to make good under section 75 of the Pensions Act 1995.
+On 20 July 2010, the trustees presented a winding up petition against the company in England on the ground that it was unable to meet this liability.
+The size of Olympics deficiency means that they are unlikely to recover much.
+But the winding up order was necessary in order that the scheme should qualify for entry into the Pension Protection Fund under section 127 of the Pensions Act 2004.
+One of the conditions of entry was that a qualifying insolvency event should have occurred, and the only available one was that the company should have been ordered to be wound up under the Insolvency Act 1986: see Pensions Act 2004, section 121(3)(g).
+Accordingly, the question arises whether Olympic had an establishment in the United Kingdom on 20 July 2010 so as to justify the presentation of a winding up petition on that date.
+Olympic had had a number of offices in the United Kingdom, but the only ones which it still occupied on 20 July 2010 were its former UK head office at 11 Conduit Street in London, which it leased from an associated company.
+The Chancellor heard evidence about the status of 11 Conduit Street and the activities that were carried on there at the relevant time.
+He and the Court of Appeal made the following findings: (1) On 28 September 2009, shortly before the commencement of the liquidation proceedings in Greece, the area manager for Olympic in London was instructed that the company would cease all commercial operations as from 00.01 on the following day.
+From that time all flight operations were undertaken by an unrelated company. (2) On 17 June 2010, the Greek liquidator informed the trustees of the pension fund that the employment of the 27 remaining UK staff would be terminated with effect from 14 July 2010.
+Three persons, Mr Savva the General Manager, Mr Platanias the Finance and Purchasing Manager, and an accounts clerk, were retained thereafter on short term ad hoc contracts.
+At the time of the English winding up petition, they were the only persons still working there. (3) Mr Savva attended the office at Conduit Street as required.
+In practice this was about three or four times a week.
+His function was to deal generally with anything requiring attention, principally instructions and requests from the liquidator and staff in Athens retained by him. (4) Mr Platanias arranged the payment of bills for his own salary and Mr Savvas, council tax, electricity and cleaning, and for minor repairs following a break in.
+He reconciled bank statements, copied and sent relevant documents to the liquidator and his staff in Athens and dealt generally with post and telephone calls.
+He supervised the disposal of the companys assets in England, a process which had begun before the winding up petition and continued for some time afterwards.
+These comprised a current and deposit account, computers and office furniture, fixtures and fittings and computerised accounting records.
+They had no substantial realisable value.
+The Chancellor found that Mr Platanias functions were exactly what is to be expected from one responsible to an overseas liquidator for winding up the affairs of a foreign branch of a formerly substantial overseas trading company. (5) The clerk assisted in these activities under the direction of Mr Savva or Mr Platanias.
+The decisions of the courts below
+The Chancellor considered that to be economic an activity did not have to amount to external market activity: [2013] 1 BCLC 415.
+He found that these activities constituted non transitory economic activities for the purpose of the definition of establishment and made the winding up order.
+The Court of Appeal (Moore Bick LJ, Sir Stephen Sedley and Sir Bernard Rix) overruled him: [2014] 1 WLR 1401.
+In summary, they thought that the relevant economic activity had to consist of more than the activity involved in winding up the companys affairs, and that the three remaining employees were doing no more than that.
+After the Court of Appeal handed down its decision, the law was changed.
+A statutory power under the Pensions Act 2004 was exercised so as to prescribe an additional insolvency event for the purpose of section 121.
+The additional event was defined in such a way as to apply only to cases in which insolvency proceedings had been commenced in another member state of the EU in respect of an employer whose COMI was located in that state, and secondary proceedings had been begun in the United Kingdom but had subsequently been set aside for want of jurisdiction: see the Pension Fund (Entry Rules) (Amendment) Regulations 2014 (SI 2014/1664).
+This appears to be a class of one: the present case.
+However, for technical reasons, the present issue remains important even though the effect of the amendment is to enable the Olympic pension scheme to qualify for the Pension Protection Fund on the basis of the Greek proceedings.
+The reason is that where the new insolvency event applies it is deemed to occur on the fifth anniversary of the commencement of the Greek proceedings, ie on 2 October 2014.
+This is rather more than four years after the date of the winding up order made by the High Court.
+This matters, because of the possibility that the Board of the Pension Protection Fund might require the trustees of the Olympic scheme to claw back any overpaid benefits between the commencement of the Greek liquidation proceedings and the relevant insolvency event.
+If that event occurred on 2 October 2014 instead of 29 May 2012, the period over which the benefits may be clawed back will be longer.
+Authorities
+The text of the Regulation is largely derived from the Convention on Insolvency Proceedings which was opened for signature in Brussels on 23 November 1995, but failed for want of a sufficient number of signatories.
+The Convention had been the subject of an authoritative commentary by Professor Miguel Virgos and M Etienne Schmit.
+According to the Virgos Schmit Report (3 May 1996, OJL 6500/96), the definition of establishment reflected a compromise between universalist states, who favoured a single liquidation with universal effect, and territorialist states, who wished to recognise a jurisdiction to open national territorial proceedings based on the mere presence of local business assets whether or not there was any local place of business.
+The compromise consisted in the acceptance by the territorialists that jurisdiction to open secondary proceedings should be founded on the existence of a local establishment, but with a broad definition of the activities that must be carried on there.
+At para 71, the Report commented on the resultant definition as follows: 71.
+For the Convention on insolvency proceedings, establishment is understood to mean a place of operations through which the debtor carries out an economic activity on a non transitory basis, and where he uses human resources and goods.
+Place of operations means a place from which economic activities are exercised on the market (ie externally), whether the said activities are commercial, industrial or professional.
+The emphasis on an economic activity having to be carried out using human resources shows the need for a minimum level of organization.
+A purely occasional place of operations cannot be classified as an establishment.
+A certain stability is required.
+The negative formula (non transitory) aims to avoid minimum time requirements.
+The decisive factor is how the activity appears externally, and not the intention of the debtor.
+The rationale behind the rule is that foreign economic operators conducting their economic activities through a local establishment should be subject to the same rules as national economic operators as long as they are both operating in the same market.
+In this way, potential creditors concluding a contract with a local establishment will not have to worry about whether the company is a national or foreign one.
+Their information costs and legal risks in the event of insolvency of the debtor will be the same whether they conclude a contract with a national undertaking or a foreign undertaking with a local presence on that market.
+Naturally, the possibility of opening local territorial insolvency proceedings makes sense only if the debtor possesses sufficient assets within the jurisdiction.
+Whether or not these assets are linked to the economic activities of the establishment is of no relevance.
+This provides much the most useful source of guidance.
+By comparison, there is very limited help to be had from decided cases.
+Decisions on the location of a companys COMI are addressed to a different test.
+Decisions on what constitutes an establishment can rarely be more than illustrative given the fact sensitive nature of the inquiry.
+In (Case C 396/09) Interedil Srl (in liquidation) v Fallimento Interedil Srl [2011] ECR I 9939: [2012] BUS LR 1582, the Court of Justice of the European Union dealt with the question whether the presence of immovable property was enough to confer jurisdiction to open secondary insolvency proceedings.
+The court did not specifically address the question what constituted economic activity, but it dealt generally with the definition of establishment at paras 61 63 as follows:
+61. Article 2(h) of the Regulation defines the term establishment as designating any place of operations where the debtor carries out a non transitory economic activity with human means and goods. 62.
+The fact that that definition links the pursuit of an economic activity to the presence of human resources shows that a minimum level of organisation and a degree of stability are required.
+It follows that, conversely, the presence alone of goods in isolation or bank accounts does not, in principle, satisfy the requirements for classification as an establishment. 63.
+Since, in accordance with article 3(2) of the Regulation, the presence of an establishment in the territory of a member state confers jurisdiction on the courts of that State to open secondary insolvency proceedings against the debtor, it must be concluded that, in order to ensure legal certainty and foreseeability concerning the determination of the courts with jurisdiction, the existence of an establishment must be determined, in the same way as the location of the centre of main interests, on the basis of objective factors which are ascertainable by third parties.
+Two English decisions illustrate the application of the test to particular facts.
+In Shierson v Vlieland Boddy [2005] 1 WLR 3966, the Court of Appeal was concerned with an English debtor whose COMI was in Spain but who let and managed premises in England.
+It cited and implicitly adopted para 71 of the Virgos Schmit Report, and concluded that the letting and management of the premises themselves was enough to make them an establishment.
+In In re Office Metro Ltd [2012] BCC 829, Mann J was concerned with secondary proceedings in England in respect of an English company whose COMI was in Luxembourg and which was in liquidation there.
+It used an office in England, at which it handled the settlement of liabilities on guarantees of leases to associated companies, dealt with Companies Act filings, forwarded post, and occasionally took legal and accountancy advice.
+Perhaps wisely, the judge did not attempt a general definition of economic activity, but expressed the view that the activities carried out at the relevant premises were not economic activities and that in any event they were transitory.
+Application to the present case
+The definition in article 2(h) must be read as a whole, not broken down into discrete elements, for each element colours the others.
+The relevant activities must be (i) economic, (ii) non transitory, (iii) carried on from a place of operations, and (iv) using the debtors assets and human agents.
+This suggests that what is envisaged is a fixed place of business.
+The requirement that the activities should be carried on with the debtors assets and human agents suggests a business activity consisting in dealings with third parties, and not pure acts of internal administration.
+As the Virgos Schmit Report suggests, the activities must be exercised on the market (ie externally).
+I am inclined to think that the same point was being made by the Court of Justice when it observed in Interedil that the activities must be sufficiently accessible to enable third parties, that is to say in particular the companys creditors, to be aware of them.
+I do not think that this can sensibly be read as requiring that the debtor should simply be locatable or identifiable by a brass plate on a door.
+It refers to the character of the economic activities.
+They must be activities which by their nature involve business dealings with third parties.
+Manifestly, some activities which a company in liquidation might carry on, may satisfy the definition.
+This may happen not only where the liquidator carries on the business with a view to its disposal but also, for example, where he disposes of stock in trade on the market.
+On the other hand, where a company has no subsisting business it is clearly not the case that the mere internal administration of its winding up will qualify.
+Such activity would not be exercised on the market; moreover, if it were enough to establish
+jurisdiction then the requirement for economic activities would add little
+or nothing to the rest of the definition.
+Indeed, the definition would almost always be satisfied by a debtor who retained premises in the United Kingdom with inevitable outgoings such as the payment of rent, business rates, and so on.
+It is unnecessary in the present case to undertake the difficult task of drawing a precise boundary between these extremes because, on any reasonable view of the meaning and purpose of the definition, the facts of this case are on the wrong side of it.
+Olympic was not carrying on any business activity at 11 Conduit Street on the relevant date.
+The last of the companys business activities had ceased some time before.
+All that Mr Savva and Mr Platanias were doing was handling matters of internal administration associated with the final stages of the companys disposal of the means of carrying on business.
+The company cannot therefore be said to have had an establishment in the United Kingdom.
+Reference under Article 267 TFEU
+In my opinion, the necessity for showing at least some subsisting business with third parties before the definition can be satisfied is acte clair, even if the exact nature of that business and the degree to which it must be visible to outsiders may be open to argument.
+Since in this case no external business at all was carried on from 11 Conduit Street, there is no point of principle calling for a reference.
+Disposal
+I would dismiss the appeal.
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+These appeals are brought by a Polish national, Roksana Mirga, and an Austrian national, Wadi Samin, against decisions of the Court of Appeal upholding determinations that they were not entitled to certain benefits, namely income support and housing assistance respectively, pursuant to the provisions of United Kingdom domestic law.
+The arguments have changed somewhat over the course of the two sets of proceedings, but the essential issue raised now is whether the provisions and the current implementation of the domestic law in question infringe the rights of residence in the UK of citizens of European Union member states.
+Shortly before this judgment was to be delivered, counsel for the appellants informed us of an Opinion which had been delivered by Advocate General Wathelet in Jobcenter Berlin Neuklln v Alimanovic (Case C 67/14) [2016] 2 WLR 208, which they contended assisted their arguments.
+We decided to await the judgment of the Court of Justice in that case.
+Judgment was given on 15 September 2015, and the parties have had the opportunity to make written submissions as to its effect on these appeals.
+It should perhaps be added that, after we received those further submissions, the appellants counsel drew to our attention Advocate General Cruz Villalns Opinion in European Commission v United Kingdom (Case C 308/14), and suggested that we await the judgment of the Court of Justice in that case, or alternatively that we refer these two cases to that court.
+In my opinion, following the judgment in Alimanovic, any issue on which we have to rule in these appeals is acte clar, and accordingly we should now determine these two appeals.
+The factual background
+The facts relating to Ms Mirga
+Ms Mirga was born in 1988 in Poland.
+In 1998, she came to this country with her parents and three siblings, but they returned to Poland in 2002 after being refused asylum.
+Two years later, in June 2004, on Polands accession to the EU, the family returned to the UK.
+Sadly, her mother died four months later, and her father, who had been working, gave up his job owing to depression a few months afterwards.
+He received income support until late 2007, when it was decided that he should not have been receiving it, on the ground that he did not have the right of residence in the UK.
+Meanwhile, Ms Mirga finished her education in April 2005 and embarked on registered work within the meaning of the Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004/1219) (the A8 Regulations).
+She continued with that registered work until November 2005.
+In February 2006, she became pregnant and started to do unregistered work, which she continued for two months or so.
+In June 2006, she left home for rented accommodation, and did a months further unregistered work around June 2006.
+In August 2006, she claimed income support under the Income Support (General) Regulations 1987 (SI 1987/1967) (the Income Support Regulations) on the grounds of her pregnancy.
+Her baby son was born in October 2006.
+The Secretary of State for Work and Pensions refused Ms Mirgas application for income support, and his decision was upheld by the First tier Tribunal, whose decision was affirmed, albeit for different reasons, by Judge Rowland in the Upper Tribunal.
+The Upper Tribunal decided that the Secretary of State was entitled to refuse Ms Mirgas application because she did not have a right of residence in the UK under the A8 Regulations and therefore was excluded from the ambit of income support by virtue of the Income Support Regulations.
+The Upper Tribunals decision was upheld by the Court of Appeal in a judgment given by Laws LJ, with which Tomlinson LJ and Sir David Keene agreed [2012] EWCA Civ 1952.
+The facts relating to Mr Samin
+Mr Samin was born in Iraq in 1960.
+After ten years military service, he successfully sought asylum in Austria in 1992, together with his wife and children, and he was accorded Austrian citizenship the following year.
+Sadly, he became wholly estranged from his wife and children, and he came to the UK in December 2005, since when he has lived in this country on his own.
+During the ten months following his entry into the UK, he had some paid employment on occasions, often part time, but he has not worked since some time in 2006, and has not been looking for work since 2007.
+Mr Samin is socially isolated and suffers from poor mental health, principally from clinical depression and post traumatic stress disorder.
+Having attempted to kill himself in the past, he remains a moderately high risk of suicide in the medium term.
+He also suffers from diabetes, hypertension and kidney stones, and he needs physiotherapy.
+After occupying temporary accommodation, Mr Samin lived in a studio flat in North London, which he had to vacate after four years in June 2010.
+He then applied to Westminster City Council (the Council) for housing under the homelessness provisions in Part VII of the Housing Act 1996 (the Housing Act).
+After making inquiries, the Council decided that he was a person from abroad who is not eligible for housing assistance within the meaning of section 185(1) of the Housing Act, because he did not have the right of residence in the UK under the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) (the EEA Regulations).
+That decision was affirmed in the Central London County Court by His Honour Judge Mitchell, whose decision was in turn upheld by the Court of Appeal for reasons given by Hughes LJ, with which Etherton and Tomlinson LJJ agreed [2012] EWCA Civ 1468; [2012] WLR(D) 336.
+The legislative background
+The Treaty on the Functioning of the European Union
+Under article 18 of the Treaty on the Functioning of the European Union (TFEU), any discrimination on grounds of nationality is prohibited in so far as it is [w]ithin the scope of application of the Treaties.
+The importance of avoiding discrimination is emphasised by article 19 of TFEU which states that the Council may take appropriate action to combat discrimination .
+Article 20 of TFEU states in para 1 that every national of an EU member state shall be a citizen of the Union, and, in para 2(a), that citizens of the Union should have the right to move and reside freely within the territory of the member states, albeit that that right is to be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.
+Article 21.1 of TFEU provides as follows: Every citizen of the Union shall have the right to move and reside freely within the territory of the member states, subject to the limitations and conditions laid down in the Treaties and in the measures adopted to give them effect.
+Article 45 of TFEU, which is also concerned with freedom of movement for workers, requires the abolition of any discrimination based on nationality between workers of the member states as regards employment, remuneration and other conditions of work and employment.
+The 2003 Accession Treaty
+In 2004, ten countries, including Poland, acceded to the EU pursuant to the Treaty on Accession 2003 (the 2003 Accession Treaty).
+By virtue of articles 10 and 24 of the Act of Accession forming the second part of the Treaty, existing member states, including the UK, were accorded, by way of derogation, certain transitional powers.
+Those powers included a right to derogate in relation to the free movement of workers within the EU, which was then governed by Regulation (EEC) No 1612/68 (the 1968 Regulation), in relation to nationals (known as A8 nationals) of eight of the ten new member states.
+Those powers of derogation in relation to Polish nationals were contained in paragraphs 1 14 of Part 2 of Annex 12 to the 2003 Accession Treaty.
+So long as these provisions were in force, they enabled a host member state to exclude Polish nationals from freedom of movement rights unless they had been working in that state for an uninterrupted period of 12 months following accession.
+The 2004 Directive
+The right of EU nationals to reside in all member states of the EU has been qualified and regulated by EU Instruments, most notably by the 1968 Regulation and by Directive 2004/38/EC of 30 April 2004 (the 2004 Directive), which made substantial amendments to the 1968 Regulation.
+The 2004 Directive is concerned with the right of citizens of the Union and their family members to move and reside freely within the territory of the member states.
+The preamble to the 2004 Directive includes the following: (10) Persons exercising their right of residence should not become an unreasonable burden on the social assistance system of the host member state during an initial period of residence.
+Therefore, the right of residence for Union citizens and their family members for periods in excess of three months should be subject to conditions. (16) As long as the beneficiaries of the right of residence do not become an unreasonable burden on the social assistance system of the host member state they should not be expelled.
+Therefore, an expulsion measure should not be the automatic consequence of recourse to the social assistance system.
+The host member state should examine whether it is a case of temporary difficulties and take into account the duration of residence, the personal circumstances and the amount of aid granted in order to consider whether the beneficiary has become an unreasonable burden on its social assistance system and to proceed to his expulsion.
+In no case should an expulsion measure be adopted against workers, self employed persons or job seekers as defined by the Court of Justice save on grounds of public policy or public security.
+Recital (31) emphasises that the 2004 Directive should be implemented in a non discriminatory way.
+Article 6 states that Union citizens shall have the right of residence on the territory of another member state for a period of up to three months without any conditions or any formalities, and that the right extends to family members.
+Article 7 is concerned with the Right of Residence for more than three months, and it starts as follows: 1.
+All Union citizens shall have the right of residence on the territory of another member state for a period of longer than three months if they: are workers or self employed persons in the host (a) member state; or (b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host member state during their period of residence and have comprehensive sickness insurance cover in the host member state.
+Para 1(c) of article 7 deals with students, and para 1(d) and para 2 deal with family members.
+Article 7.3 provides that a person does not lose the status of a worker or self employed person on ceasing to work in certain circumstances.
+Those circumstances include (a) if he or she is temporarily unable to work as the result of an illness or accident, and (b) if he or she has been employed for more than a year, is involuntarily unemployed and has registered as a job seeker.
+Article 8 is concerned with Administrative formalities for Union citizens, and articles 8.1 and 8.2 deal with the right of member states to require Union citizens residing for more than three months to register with the relevant authorities.
+Articles 8.3 and 8.4 include the following: 3.
+For the registration certificate to be issued, member states may only require that: Union citizens to whom point (b) of article 7(1) applies present a valid identity card or passport and provide proof that they satisfy the conditions laid down therein; 4.
+Member states may not lay down a fixed amount which they regard as sufficient resources but they must take into account the personal situation of the person concerned.
+In all cases this amount shall not be higher than the threshold below which nationals of the host member state become eligible for social assistance, or, where this criterion is not applicable, higher than the minimum social security pension paid by the host member state.
+Article 14.1 states that the three months right of residence under article 6 applies as long as [the citizen and his or her family] do not become an unreasonable burden on the social assistance system of the host member state.
+Article 14.2 provides that Union citizens and their family members have the right of residence provided for in [article 7] as long as they meet the conditions set out therein.
+But article 14.3 states that an expulsion measure should not be the automatic consequence of recourse to the social assistance system.
+Article 14.4 provides that an expulsion measure shall not be adopted against Union citizens who (a) are workers or self employed persons, or (b) entered the host state to seek employment and can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged.
+Article 24.1 states that all Union citizens residing on the basis of this Directive in the territory of the host member state shall enjoy equal treatment with the nationals of that member state, albeit subject to such specific provisions as are expressly provided for in the Treaty and secondary law.
+Article 24.2 specifically entitles a member state to refuse social assistance during the first three months of residence, or, where appropriate, the longer period provided for in article 14(4)(b).
+Article 28 is concerned with Protection against expulsion, and para 1 provides that: Before taking an expulsion decision on grounds of public policy or public security, the host member state shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host member state and the extent of his/her links with the country of origin.
+Articles 30 and 31 are concerned with protecting the rights that are the subject of the Directive (and the width of their ambit is emphasised by article 15.1).
+Article 30 deals with notification, and article 31 deals with Procedural safeguards, including access to judicial redress procedures.
+Domestic legislation: the EEA Regulations
+On 30 April 2006, the EEA Regulations came into force in the United Kingdom.
+They were, as the Explanatory Note explains, intended to implement the 2004 Directive.
+Regulation 13 of the EEA Regulations provides that all EEA nationals have the right to reside in the UK for three months.
+Regulation 14 provides that a qualified person is entitled to remain in the UK so long as he is so qualified.
+Regulation 6 of the EEA Regulations defines what is meant by qualified person.
+It includes a jobseeker, a worker, a self employed person, a self sufficient person, and a student.
+Regulation 4, which has been amended on various occasions, is concerned with definitions of most of those expressions, including worker and self sufficient person.
+Regulation 4(1)(a) defines worker by reference to the TFEU.
+Regulations 5 and 15 certain workers who [have] ceased activity have a permanent right of residence, and they include (2) those who have retired having worked in the UK for at least 12 months and resided there for at least three years, and (3) those who have stopped working as a result of permanent incapacity, having resided in the UK for at least two years.
+Regulation 6 extends qualified person status to people who are temporarily no longer working owing to illness or accident, or who worked but are now involuntarily unemployed and registered as jobseekers (but only for six months if they were employed for less than a year), or who have lost their jobs and are in vocational training.
+Regulation 4(1)(c) of the EEA Regulations provides that: self sufficient person means a person who has i) sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence; and ii) United Kingdom.
+comprehensive sickness insurance cover in the
+Regulation 4(2), (3) and (4) contain further provisions dealing with what constitutes sufficient resources, but only para (4) is of any relevance in these proceedings.
+It has been amended at least twice.
+Ignoring references to family members which are irrelevant in these two cases, regulation 4(4) now provides that resources are to be regarded as sufficient if (a) they exceed the maximum level which a British citizen may possess if he is to become eligible for social assistance in the UK, or (b) taking into account the personal situation of the person concerned it appears that [his] resources should be regarded as sufficient.
+The paragraph originally only included what is now sub para (a), and sub para (b) was added in 2011.
+Regulation 19 of the EEA Regulations is concerned with refusal of admission and removal, and para 3 provides that a person who has been admitted into, or acquired a right to reside in, the UK may be removed if he does not have or ceases to have a right to reside.
+However regulation 19(4) states that a person cannot be removed as an automatic consequence of having recourse to the social assistance system of the [UK].
+Domestic legislation: the A8 Regulations
+Pursuant to the terms of the 2003 Accession Treaty, the European Union (Accessions) Act 2003 was enacted, which, under section 2, permitted the Secretary of State to make the A8 Regulations (which were revoked in May 2011).
+Regulations 2 and 5 of the A8 Regulations provided that A8 nationals would only have full access to the UK labour market if they had been in registered employment under the Worker Registration Scheme for a continuous period of 12 months.
+The consequence was that, so long as the A8 Regulations were in force, A8 nationals could not become qualifying persons under the EEA Regulations unless and until they had performed registered employment for a continuous period of at least 12 months.
+Domestic legislation: income support
+Entitlement to income support arises under section 124 of the Social Security Contributions and Benefits Act 1992 and the Income Support Regulations.
+In very summary terms, income support is available for certain people provided that they are not engaged in relevant work or receiving relevant education, and their income is below the applicable amount.
+The effect of regulation 21 of the Income Support Regulations, however, is that a person from abroad is to be treated as having an applicable amount of nil, and is therefore not eligible for income support.
+Regulation 21AA(1) (3) of the Income Support Regulations states that certain people will be treated as persons from abroad unless they are habitually resident in the UK (and certain other places, including Ireland), and have the right to be so under certain statutory provisions not germane to the present appeals.
+Regulation 21AA(4) provides, however, that a person is not a person from abroad if he is, inter alia, a worker (or self employed person, or is to be treated as a worker or self employed person) within the meaning of the 2004 Directive.
+Domestic legislation: housing assistance
+Part VII of the Housing Act imposes duties on local housing authorities in relation to homeless people.
+The duty extends, under section 193, to providing them with accommodation where they are involuntarily homeless and in priority need unless they are not eligible for assistance.
+Eligibility for assistance is dealt with in section 185 of the Housing Act, which provides, inter alia, that a person who is subject to immigration control is ineligible for housing assistance unless of a class prescribed by regulations, along with any other person from abroad treated as ineligible by virtue of regulations.
+The Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 (SI 2006/1294) (the Eligibility Regulations) define the classes of persons subject to immigration control who are eligible for housing assistance and the classes of other persons from abroad who are ineligible, and the effect of regulations 2(2) and 6(2) is that a person from abroad is eligible if he is a worker for the purposes of the definition of a qualified person in regulation 6(1) of the EEA Regulations.
+The issues raised on these appeals
+Mr Coppel QC and Ms Rogers, on behalf of the Secretary of State, contend that, at the time that Ms Mirga applied for income support, she was ineligible for income support under the Income Support Regulations, because she was a person from abroad.
+This was on the basis that she could not claim to be a worker as she was an A8 national who had not done 12 months registered employment (under the A8 Regulations), and thus could not be a qualifying person for the purpose of the EEA Regulations.
+Even if the A8 Regulations did not apply, Mr Coppel argues that Ms Mirga would still not have been a worker, as the EEA Regulations would have required her to have worked for at least 12 months before she claimed income support.
+There is no question of Ms Mirga having been a jobseeker, a self employed person, or a student under the EEA Regulations.
+Further, it seems clear that Ms Mirga could not claim to be a self sufficient person under the EEA Regulations, as she had no significant means of support and no health insurance (but if she had had been a self sufficient person she would presumably not have needed income support anyway).
+With the support of the Secretary of State for Communities and Local Government, Mr Peacock contends for the Council that Mr Samin is not a worker within the EEA Regulations because he is now permanently incapable of work, and in any event he cannot claim to be a worker because he has not worked for 12 months in the UK.
+Accordingly, argues Mr Peacock, Mr Samin is not a qualified person under the EEA Regulations, from which it follows that he is ineligible for the purposes of the Housing Act.
+It is also said that Mr Samin cannot claim to be a self sufficient person within the EEA Regulations because he has no assets and no health insurance.
+The first argument raised by Mr Drabble QC, who appears with Ms Leventhal on behalf of Ms Mirga, is that, in the light of her right to respect for her private and family life, under article 8 of the European Convention on Human Rights, she cannot be removed from the UK, and therefore her right of residence in the UK, as accorded by article 21.1 of TFEU, cannot be limited or cut back in the way that the Income Support Regulations seek to do, namely by restricting her rights to income support because she has not achieved a continuous 12 month period in registered employment.
+His alternative argument is that, even if it would be permissible to refuse Ms Mirga income support on that ground, it is only possible in practice if it would be proportionate to do so, and in particular if the grant of income support to her would place an unreasonable burden on the social assistance system of the UK, and there has been no inquiry into that question.
+The first argument raised on behalf of Mr Samin by Mr Drabble, appearing with Mr Carter and Mr Cowan, is that the refusal of housing assistance to Mr Samin constituted unlawful discrimination in breach of article 18 of the TFEU, even though he may not have had a right of residence in the UK.
+The alternative argument raised on behalf of Mr Samin reflects the alternative argument in Ms Mirgas case, namely that there should have been an investigation as to whether it was proportionate to refuse Mr Samin housing assistance, in particular on the ground that it represented an unreasonable burden of the UK social assistance system.
+Mr Drabbles arguments were supported by Ms Demetriou QC, assisted by Mr Banner and Ms MacLeod, on behalf of The AIRE Centre, and it is right to record the courts appreciation of their pro bono work in this case, and their assistance to the court.
+Discussion Issue one: do the domestic Regulations infringe the appellants TFEU rights?
+Mr Drabbles first contention on behalf of Ms Mirga is that, as she is a worker (albeit one whose work was temporarily interrupted owing to her pregnancy), article 21.1 of TFEU accords her the right to reside freely within the EU, and therefore within the UK, and that the denial of income support to her, at a time when she needed it in order to be able to live in the UK, was an impermissible interference with that right, as she would, in practice, be forced to return to Poland.
+That argument can be said to reflect the fundamental importance of freedom of movement and freedom of establishment to the single market concept, as well as the significance attached in articles 18 and 19 of TFEU to the avoidance of discrimination between citizens of a member state and other EU nationals.
+A similar argument cannot be run in relation to Mr Samin, because it is now accepted that owing to his inability to work he cannot claim to be a worker, even in the light of the extended definition in article 7.3 of the 2004 Directive and regulation 6 of the EEA Regulations.
+Accordingly, Mr Drabbles first line of argument on behalf of Mr Samin is that the Councils refusal to provide Mr Samin with housing assistance under Part VII of the Housing Act constituted discrimination on grounds of nationality prohibited by article 18 of TFEU, because such assistance would have been accorded to a citizen of the UK, or a qualifying worker from another member state, who was otherwise in the same position as Mr Samin.
+It seems to me that these arguments face real difficulties.
+The right accorded by article 21.1 of TFEU, which is relied on by Ms Mirga, although fundamental and broad, is qualified by the words subject to the limitations and conditions laid down in the Treaties and in the measures adopted to give them effect.
+In the present case, the measures include the 2004 Directive, and presumably include the 2003 Accession Treaty, which was adopted under article 49 of the Treaty on European Union.
+It appears clear from the terms of paragraph 10 of the preamble that it was a significant aim of the 2004 Directive that EU nationals from one member state should not be able to exercise their rights of residence in another member state so as to become an unreasonable burden on the social assistance system.
+It also seems clear that any right of residence after three months can be subject to conditions.
+This is reflected in the terms of article 7.1, in that it limits the right of residence after three months to those who are workers, self employed, students, or with sufficient resources and health insurance not to become a burden on the social assistance system of the host member state.
+Indeed, it is worth noting that article 14.1 even limits the right of residence in the first three months.
+It further appears clear from article 24, that EU nationals right of equal treatment in host member states is subject to secondary law, and in particular that they can be refused social assistance where appropriate.
+Accordingly, when one turns to the 2003 Accession Treaty and the 2004 Directive, I consider that, because Ms Mirga has not done 12 months work in this country, she cannot claim to be a worker, and, because she is not a jobseeker, self employed, a student, or self sufficient, it would seem to follow that she can be validly denied a right of residence in the UK, and therefore can be excluded from social assistance.
+In those circumstances, it must follow that article 21.1 TFEU cannot assist her.
+The fact that Ms Mirga may have to cease living in the UK to seek assistance in Poland does not appear to me to assist her argument.
+Although the refusal of social assistance may cause her to leave the UK, there would be no question of her being expelled from this country.
+I find it hard to read the 2004 Directive as treating refusal of social assistance as constituting a species of constructive expulsion even if it results in the person concerned leaving the host member state.
+As I see it, the Directive distinguishes between the right of residence and the act of expulsion.
+However, quite apart from this, the Directive makes it clear that the right of residence is not to be invoked simply to enable a national of one member state to obtain social assistance in another member state.
+On the contrary: the right of residence is not intended to be available too easily to those who need social assistance from the host member state.
+Mr Samins first argument appears to me to face similar difficulties.
+The article 18 right which he relies on does not constitute a broad or general right not to be discriminated against.
+First, its ambit is limited to the scope of the Treaties, which means that it only comes into play where there is discrimination in connection with a right in the TFEU or another EU Treaty.
+Secondly, the article 18 right is without prejudice to any special provisions contained [in the Treaties].
+That brings one back to the argument raised on behalf of Ms Mirga.
+Contrary to the appellants argument, I do not consider that the decision of the Third Chamber in Pensionsversicherungsanstalt v Brey (Case C 140/12) [2014] 1 WLR 1080 provides the appellants with much assistance.
+However, it is unnecessary to consider that possibility, because it seems to me clear that the first point raised by each appellant must be rejected as acte clar following the recent Grand Chamber judgments in Dano and another v Jobcenter Leipzig (Case C 333/13) [2015] 1 WLR 2519 (which was published after the Court of Appeal decided these cases) and in Alimanovic (Case C 67/14) EU:C:2015:597, which, as mentioned above, was published some time after the hearing of these appeals.
+It is appropriate to set out in summary terms the effect of those three decisions, not least because they have relevance to the second issue raised on behalf of each appellant, as well as the first.
+In Brey, the applicant was a German national residing in Austria, who received a German pension and care allowance insufficient for his needs, and who was refused a compensatory supplement from the Austrian government, because he did not meet the necessary national residency requirements, which excluded those who did not have sufficient resources not to be a burden on the Austrian social security system.
+Shortly after that refusal, the Austrian government issued the applicant with an EEA citizen registration certificate.
+The question referred to the Court of Justice by the Austrian Oberster Gerichtshof was whether article 7(1)(b) of Directive 2004/38 should be interpreted as meaning that, for the purposes of that provision, the concept of social assistance covers a benefit such as the compensatory supplement (para 26).
+The Chamber ruled, at para 80, that the 2004 Directive precluded national legislation which automatically whatever the circumstances bars the grant of a benefit, such as the compensatory supplement to a national of another member state who is not economically active, on the grounds that, despite having been issued with a certificate of residence, he does not meet the necessary requirements for obtaining the legal right to reside since obtaining that right of residence is conditional on that national having sufficient resources not to apply for the benefit.
+In Dano, the applicant and her son were Romanian nationals living in Germany (where the son had been born), and she had been issued with an unlimited residence certificate.
+The applicant neither had worked nor was looking for work, and she and her son were refused maintenance payments.
+The Sozialgericht Leipzig referred a number of questions to the Court of Justice, and the Grand Chamber concluded that article 24 of the 2004 Directive and article 4 of Regulation 883/2004 (which concerns the coordination of social security systems, and includes a similar anti discrimination provision to the 2004 Directive): must be interpreted as not precluding legislation of a member state under which nationals of other member states are excluded from entitlement to certain special non contributory cash benefits within the meaning of article 70(2) of Regulation 883/2004, although those benefits are granted to nationals of the host member state who are in the same situation, in so far as those nationals of other member states do not have a right of residence under Directive 2004/38 in the host member state. (para 84)
+In Alimanovic, Mrs Alimanovic and her three children were Swedish nationals who had gone to Germany and had been issued with a certificate of right to permanent residence.
+She and her children were refused subsistence and social allowances, and when they challenged this, the Bundessozialgericht referred three questions to the Court of Justice.
+The Grand Chamber ruled, at para 63, that article 24 of the 2004 Directive: must be interpreted as not precluding legislation of a member state under which nationals of other member states who are in a situation such as that referred to in article 14(4)(b) of that Directive are excluded from entitlement to certain special non contributory cash benefits within the meaning of article 70(2) of Regulation No 883/2004, which also constitute social assistance within the meaning of article 24(2) of Directive 2004/38, although those benefits are granted to nationals of the member state concerned who are in the same situation.
+In para 60 of Dano, the Grand Chamber said that the right granted by article 18 of TFEU was subject to the restrictions I have mentioned in paras 43 and 44 above, and the court referred in support to the decision in Brey, and in particular paras 46ff.
+In para 46 of Brey, the Chamber had referred to the right of nationals of one member state to reside in the territory of another members state without being employed or self employed as being not unconditional.
+It is also worth noting that the Grand Chamber also referred to article 20 of TFEU and article 24 of the 2004 Directive in terms which made it clear that the rights they grant should, in the instant context, be treated similarly to the rights granted by article 18.
+In para 61 of Dano, the Grand Chamber described the right under article 18 of the TFEU as having been given more specific expression in article 24 of [the 2004 Directive].
+In para 63, citing Brey, para 61, the court pointed out that if someone has recourse to assistance schemes established by the public authorities, he may during his period of residence, become a burden on the public finances of the host member state which could have consequences for the overall level of assistance which may be granted by that state.
+In para 69, it was made clear that a Union citizen can claim equal treatment with nationals of the host member state only if his residence in the territory of the host member state complies with the conditions of [the 2004 Directive].
+In para 73, the court summarised the effect of article 7(1) of the 2004 Directive, and said in the following paragraph that, if persons who do not have a right of residence under [the 2004 Directive] may claim entitlement to social benefits under the same conditions as those applicable to nationals [that] would run counter to an objective of the Directive.
+In para 76, the purpose of article 7(1)(b) of the 2004 Directive was described as being to prevent economically inactive Union citizens from using the host members states welfare system to fund their means of subsistence.
+Finally, in para 80 the Grand Chamber said that a persons financial situation should be examined specifically in order to determine whether he meets the condition of having sufficient resources to qualify under article 7.1(b).
+As already mentioned, the authority of the decision in Dano has been reinforced by the decision in Alimanovic, where, in paras 44 and 50 respectively, the Grand Chamber specifically referred to what was said in paras 63 and 69 of the judgment in Dano with approval.
+More broadly, as explained more fully below, the Grand Chamber in Alimanovic confirmed that a Union citizen can claim equal treatment with nationals of a country, at least in relation to social assistance, only if he or she can satisfy the conditions for lawful residence in that country.
+Thus, it was confirmed that article 24.2 of the 2004 Directive was, in effect, a valid exception to the principle of non discrimination.
+Dano and Alimanovic clearly demonstrate that the jurisprudence of the Grand Chamber of the Court of Justice is inconsistent with Mr Drabbles first argument on behalf of Ms Mirga and Mr Samin, at least in so far as his argument is focussed on the 2004 Directive.
+It is fair to say that those cases were not concerned with the 2003 Accession Treaty.
+However, the House of Lords concluded in Zalewska v Department for Social Development [2008] 1 WLR 2602 that the A8 Regulations, which reflect the provisions of the 2003 Accession Treaty, were consistent with EU law, and nothing I have heard or read in connection with this appeal casts doubt on that conclusion.
+In particular, it appears to be consistent with the reasoning in Brey, Dano and Alimanovic.
+The only possible remaining issue in relation to this first set of arguments could be whether (i) in the case of Ms Mirga, the provisions of the Income Support Regulations, when read together with the A8 Regulations and the EEA Regulations, and (ii) in the case of Mr Samin, the provisions of the Eligibility Regulations, when read together with the EEA Regulations, complied with the requirements of the 2003 Accession Treaty and the 2004 Directive.
+As I understood his contentions, Mr Drabble did not suggest any discrepancy in the domestic regulations unsurprisingly, as they were clearly intended to implement the EU instruments.
+Accordingly, in my judgment, following the clear guidance from the Grand Chamber in Dano and Alimanovic, the first arguments raised on behalf of Ms Mirga and Mr Samin cannot be maintained.
+That leaves their alternative arguments raised in the two appeals, based on proportionality.
+Issue two: the appellants argument based on lack of proportionality
+Mr Drabbles second argument in both appeals is that the determination of the authorities and the courts and tribunals below in the case of both Ms Mirga and Mr Samin was flawed because no consideration was given to the proportionality of refusing each of them social assistance bearing in mind all the circumstances of their respective cases, and in particular that the authority or tribunal concerned failed to address the burden it would place on the system if they were to be accorded the social assistance which they sought.
+In that connection, Mr Drabble relied on the Court of Justices decisions in St Prix v Secretary of State for Work and Pensions (Case C 507/12) [2014] PTSR 1448, Baumbast v Secretary of State for the Home Department (Case C 413/99) [2003] ICR 1347 and Brey.
+St Prix was concerned with the question whether a person ceased automatically to be a worker for the purpose of the 2004 Directive, and therefore the EEA Regulations, if she temporarily ceased work owing to the fact that she was pregnant.
+It provides no assistance to the appellants arguments as advanced by Mr Drabble, except to emphasise the purposive approach to be adopted to the interpretation of the 2004 Directive.
+The effect of the decision of Baumbast is that the fact that an applicant may fall short of the strict requirements of having self sufficiency status under what are now the 2004 Directive and the EEA Regulations cannot always justify the host member state automatically rejecting his or her right to reside on the ground that the requirements for that status are not wholly complied with.
+In Baumbast the court was concerned, inter alia, with the issue whether an applicant could exercise the right to reside in the UK in circumstances where he was resting his case on the ground that he was a self sufficient person.
+It is clear from paras 88 and 89 of the judgment that the applicant had sufficient resources to be self sufficient in practice, and that he had medical insurance.
+His only possible problem was that the insurance may have fallen short of being comprehensive in one respect, namely that it was not clear whether it covered emergency treatment.
+The court held that, on the assumption that the insurance fell short in this connection, it would nonetheless be disproportionate to deprive the applicant of his right to reside.
+In para 92, the court pointed out that there were strong factors in the applicants favour, namely that he had sufficient resources, that he had worked and resided in the UK for several years, that his family had also resided in the UK for several years, that he and his family had never received any social assistance, and that he and his family had comprehensive medical insurance in Germany.
+In those circumstances, the court said in para 93 that it would be a disproportionate interference with the exercise of the applicants right of residence conferred by what is now article 21.1 of TFEU to refuse to let him stay in the UK because of a small shortfall in the comprehensiveness of his medical insurance.
+I do not consider that the appellants derive any assistance from Baumbast.
+Mr Baumbasts case was predicated on the fact that he did not need any assistance from the state.
+Even if the decision is relied on by analogy, it is of no help to the appellants.
+The thrust of the courts reasoning in that case was that, where an applicants failure to meet the requirements of being a self sufficient person was very slight, his links with the host member state were particularly strong, and his claim was particularly meritorious, it would be disproportionate to reject his claim to enjoy the right of residence in that host state.
+Even though the applicant had a very strong case in the sense that he fell short of the self sufficiency requirements in one very small respect, the court decided that he could rely on disproportionality only after considering the position in some detail.
+Mr Drabbles argument appears to derive greater assistance from some of the reasoning of the Third Chamber in Brey, where the Third Chamber held that the complementary supplement was social assistance within the meaning of the 2004 Directive and also that it was open to member states to provide such assistance to economically inactive citizens of other member states in any circumstances.
+Crucially, argues Mr Drabble, the Austrian governments refusal of the complementary supplement to the applicant was held to be unlawful.
+The central reasoning of the Third Chamber in Brey for present purposes is in paras 75 78.
+In para 75, having considered a number of points, the court concluded that the mere fact that a national of a member state receives social assistance is not sufficient to show that he constitutes an unreasonable burden on the social assistance system of the host member state.
+In the following paragraph, the court stated that the fact that a non national has applied for the benefit in issue in that case was not sufficient to preclude [him] from receiving it, regardless of the duration of residence, the amount of the benefit, and the period for which it is available.
+In para 77, the court made the point that domestic legislation, such as the Austrian law in that case, could not provide that a national of another member state, who was not a worker, self employed or a student, should be automatically barred from receiving a social benefit.
+In the next paragraph, the court stated that the competent authorities should be able when examining the application of a Union citizen who is not economically active and is in Mr Breys position to take into account certain factors.
+They included the amount and regularity of [the applicants] income, the fact that he had received a certificate of residence, the period for which he would receive the benefit, and the extent of the burden [it] would place on the social security system (which as Advocate General Wathelet said in Dano at paras 111 112 of his Opinion, must be a collective assessment, which was confirmed by the Grand Chamber in para 62 of Alimanovic).
+These factors were, the court said in para 78 of the judgment in Brey, for the domestic court to assess.
+Brey was an unusual case, because the applicant had been issued with a certificate of residence by the Austrian government, a factor which appears to have played a significant part in the courts thinking, as it was recited in the re formulated question (in para 32) and it is referred to expressly and impliedly in the crucial para 78 of the judgment, and indeed in the final ruling of the Third Chamber (see para 49 above).
+However, it is not necessary to address that point further, as it appears to me that the reasoning in Brey cannot assist the appellants on the instant appeals, in the light of the subsequent reasoning of the Grand Chamber in the subsequent decisions in Dano and Alimanovic.
+The observations of the Grand Chamber in Dano discussed in para 53 above are in point.
+In Alimanovic, para 59, the Grand Chamber specifically mentioned that the court in Brey had stated that a member state [was required] to take account of the individual situation of the person concerned before it finds that the residence of that person is placing an unreasonable burden on its social assistance system.
+However, the Grand Chamber went on to say that no such individual assessment is necessary in circumstances such as those in issue in this case.
+In para 60, the Grand Chamber explained that: Directive 2004/38, establishing a gradual system as regards the retention of the status of worker which seeks to safeguard the right of residence and access to social assistance, itself takes into consideration various factors characterising the individual situation of each applicant for social assistance and, in particular, the duration of the exercise of any economic activity.
+The court then went on to explain that article 7 of the 2004 Directive, when read with other provisions, guarantees a significant level of legal certainty and transparency in the context of the award of social assistance by way of basic provision, while complying with the principle of proportionality. (In this connection, the Grand Chamber took a different view from that taken by Advocate General Wathelet in paras 105 111 of his Opinion, upon which Mr Drabble had understandably relied.)
+In my view, this makes good sense: it seems unrealistic to require an individual examination of each particular case.
+I note that this was a proposition which the Second Chamber rejected, albeit in a somewhat different (and probably less striking) context, on the ground that the management of the regime concerned must remain technically and economically viable see Dansk Jurist og konomforbund v Indenrigs og Sundshedsministeriet (Case C 546/11) [2014] ICR 1, para 70, which was cited with approval in the present context by Advocate General Wahl in Dano at para 132 of his Opinion.
+Where a national of another member state is not a worker, self employed or a student, and has no, or very limited, means of support and no medical insurance (as is sadly the position of Ms Mirga and Mr Samin), it would severely undermine the whole thrust and purpose of the 2004 Directive if proportionality could be invoked to entitle that person to have the right of residence and social assistance in another member state, save perhaps in extreme circumstances.
+It would also place a substantial burden on a host member state if it had to carry out a proportionality exercise in every case where the right of residence (or indeed the right against discrimination) was invoked.
+Even if there is a category of exceptional cases where proportionality could come into play, I do not consider that either Ms Mirga or Mr Samin could possibly satisfy it.
+They were in a wholly different position from Mr Baumbast: he was not seeking social assistance, he fell short of the self sufficiency criteria to a very small extent indeed, and he had worked in this country for many years.
+By contrast Ms Mirga and Mr Samin were seeking social assistance, neither of them had any significant means of support or any medical insurance, and neither had worked for sustained periods in this country.
+The whole point of their appeals was to enable them to receive social assistance, and at least the main point of the self sufficiency test is to assist applicants who would be very unlikely to need social assistance.
+Whatever sympathy one may naturally feel for Ms Mirga and Mr Samin, their respective applications for income support and housing assistance represent precisely what was said by the Grand Chamber in Dano, para 75 (supported by its later reasoning in Alimanovic) to be the aim of the 2004 Directive to stop, namely economically inactive Union citizens using the host member states welfare system to fund their means of subsistence.
+Conclusion
+I would dismiss both these appeals.
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+The appellant was questioned at an airport under Schedule 7 to the Terrorism Act 2000 (TA 2000), which requires a person in her position to answer questions asked by police officers, immigration officers and customs officers for the purpose there set out.
+She refused to answer the questions and was subsequently convicted of the offence of wilfully failing to do so, contrary to paragraph 18 of that Schedule.
+Her appeal against her conviction raises the issue whether Schedule 7 is compatible with the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), and in particular with articles 8 (right to respect for private and family life), 5 (right to liberty) and 6 (privilege against self incrimination).
+The statutory power
+Schedule 7 of TA 2000 has been somewhat amended, by the Anti Social Behaviour, Crime and Policing Act 2014 (the 2014 Act), since the date when the appellant was questioned, but the issues of compatibility remain substantially the same.
+Since the argument before this court has in effect been concerned with its future application as well as with the appellants particular case, it is convenient to set out the statute in its present form, unless necessary to draw attention to any change which has been made.
+material, it provides: Paragraph 2 of Schedule 7 creates the power which was exercised.
+So far as 2(1) An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b). (2) This paragraph applies to a person if (a) he is at a port or in the border area, and (b) the examining officer believes that the person's presence at the port or in the area is connected with his entering or leaving Great Britain or Northern Ireland or his travelling by air within Great Britain or within Northern Ireland. (3) This paragraph also applies to a person on a ship or aircraft which has arrived at any place in Great Britain or Northern Ireland (whether from within or outside Great Britain or Northern Ireland). (4) An examining officer may exercise his powers under this paragraph whether or not he has grounds for suspecting that a person falls within section 40(1)(b).
+The statutory purpose for which the questions may be asked is thus for determining whether the person questioned appears to fall within section 40(1)(b).
+That in turn defines terrorist for the purposes of the Act, and does so in these terms: (1) In this Part terrorist means a person who (a) has committed an offence under any of sections 11, 12, 15 to 18, 54 and 56 to 63, or (b) is or has been concerned in the commission, preparation or instigation of acts of terrorism.
+So the statutory purpose for which the questions may be asked is for determining whether the person appears either to be, or to have been, concerned in the commission, preparation or instigation of acts of terrorism.
+Terrorism is defined for the purposes of the Act in section 1.
+Shorn of inessential detail it means the use or threat of action which meets all of three conditions: (1) it must be done for the purpose of advancing a political, religious, racial or ideological cause, (2) it must be designed to influence the government or an international governmental organisation or to intimidate the public and (3) it must involve serious violence to a person or to property, danger to life or serious risk to public health or the risk of serious interference with an electronic system.
+Acts of terrorism are therefore to be construed as acts or omissions having these characteristics.
+Whilst the statute creates some new offences, most acts of terrorism once committed will in any event constitute long established criminal offences such as murder, infliction of grievous bodily harm, criminal damage, explosives offences or the like.
+The TA 2000 is largely concerned with the essential process of counter terrorism, much of which is preventative in character.
+Part II deals with the proscription of terrorist organisations.
+Part III prohibits fund raising for terrorist purposes and makes provision for the disclosure of terrorist property.
+Part IV contains provisions for terrorist investigations, which are not confined to inquiry into known criminal acts which have already occurred but, clearly necessarily, extend to planned or prospective acts, including the commission, preparation or instigation of acts of terrorism.
+It is within Part IV that Schedule 7, containing the power now under consideration, is given effect.
+Schedule 7 is headed Port and Border Controls.
+It follows that what Schedule 7 paragraph 2 does is to create a power to stop and to question people passing through ports or borders in order to see whether they appear to be terrorists in the sense defined by section 40(1)(b), that is to say whether they are or have been concerned in the commission, preparation or instigation of acts of terrorism.
+This core power to question is supplemented by subsequent provisions of Schedule 7 which give the officer additional powers in relation to a person questioned under paragraph 2.
+These are as follows: (i) (ii) (iii) (iv) to stop; under paragraph 6 the officer may stop the person in order to question him; to require production of documents carried; under paragraph 5 the person questioned must give the officer any information in his possession which the officer requests, provide his passport or other document verifying his identity, and hand over any document requested if he has it with him; to search; under paragraph 8 the person may be searched, an intimate search is not permitted and a strip search is allowed only when there are reasonable grounds for suspecting concealment of something which may be evidence that the individual falls within section 40(1)(b), and then only on the authority of a second and senior officer; to copy and retain material; paragraph 11 (and now paragraph 11A (inserted by the 2014 Act)) contain provisions for the retention of material handed over or found; this includes power to copy and retain electronic data contained on any device carried, the detail of which it will be necessary to consider later; (v) to detain; under paragraph 6 (and now paragraph 6A (inserted by the 2014 Act)) the officer may detain the person, for the purpose of exercising the questioning power under paragraph 2; by paragraph 6A he may not continue the questioning beyond one hour without invoking the more formal rules which attend detention; these are found in separate provisions in both Schedule 7 and Schedule 8 and include regular reviews by a different officer senior to the examining officer; it is necessary to note that at the time of the appellants questioning this power to detain was limited to nine hours, but now it is limited to six hours (the latter including the first hour).
+The sanction in the event that the person stopped wilfully fails to comply with the obligations of Schedule 7 is conviction of a specific offence created by paragraph 18.
+That paragraph provides: (1) A person commits an offence if he (a) wilfully fails to comply with a duty imposed under or by virtue of this Schedule; (b) wilfully contravenes a prohibition imposed under or by virtue of this Schedule; or (c) wilfully obstructs, or seeks to frustrate, a search or examination under or by virtue of this Schedule.
+The penalty available is a fine and/or imprisonment with a maximum of three months, together of course with the generally available lesser penalties of discharge or community orders; an amendment passed in 2003 to increase the maximum imprisonment to 51 weeks has never been brought into force.
+These statutory powers are supplemented by a Code of Practice for officers exercising them, issued by the Home Secretary under Schedule 14 paragraph 6, laid before Parliament, published generally and available wherever the powers may be exercised.
+This power of questioning, and its associated provisions, is separate from the general power to arrest, detain and question persons who are reasonably suspected of having committed an offence, and, in the context of terrorism, from the specific power to arrest on reasonable suspicion of having been concerned in the commission, preparation or instigation of an act of terrorism.
+That latter separate power is provided for by section 41 and different consequential provisions are made by Schedule 8 for the conduct of detention which is consequent upon such an arrest.
+The power in issue in the present case is a preliminary power of inquiry in aid of the prevention of terrorism.
+It is not dependent on the existence of any reasonable suspicion of either a past offence or act of terrorism or a plan to commit such in future.
+It is expressly provided in order to assist officers stationed at ports and borders to make counter terrorism inquiries of any person entering or leaving the country.
+If such inquiries lead to a reasonable suspicion of terrorism or offence then the different provisions appropriate to such a case become operative.
+The appellants case
+The appellant Mrs Beghal passed through East Midlands Airport on 4 January 2011.
+She was returning from Paris where she had visited her husband, who is a French national in custody, so the courts have been told in this litigation, in relation to terrorist offences. (The court was given no further information about him.) She was accompanied by her three children.
+She was not arrested and was told that whilst the police did not presently suspect her of being a terrorist they needed to speak to her in order to establish whether or not she was a person concerned in the commission, preparation or instigation of acts of terrorism.
+Someone was meeting her, so her two older children continued through to the land side of the airport to join that person.
+She elected to keep the youngest with her.
+She asked to consult with a lawyer.
+She requested an opportunity to pray, which was granted, and whilst she did so one of the officers contacted her lawyer.
+She was permitted to speak to him on the telephone.
+In the meantime she was searched.
+The police officers made it clear that the questions would not await the arrival of the lawyer, and proceeded to ask them.
+The questions concerned, inter alia, (i) her reasons for travel, (ii) where she had stayed, (iii) whether she had travelled on beyond France, (iv) the identity of the person meeting her, (v) whether she had been arrested in the past, (vi) her relationship with her husband given his imprisonment for terrorism, (vii) whether she was employed or supported by benefits, (viii) how she had paid for the flight, (ix) whether she had a motor car, (x) the details of her parents and siblings, (xi) her nationality status, (xii) how long she had lived in England and (xiii) whether she was carrying a mobile telephone.
+She was not formally detained.
+She remained at the airport.
+Including arrangements for the children, time for prayer (approximately 20 minutes) and time to find and speak to her solicitor, the process appears to have lasted about an hour and three quarters from her being stopped to her being told that she was free to go.
+The questions, plus reporting her for the failure to answer them, lasted a little under half an hour.
+She refused to answer most of the questions.
+She was charged with the offence of wilful failure to comply with the requirement to answer questions.
+In due course, after an unsuccessful application to the District Judge to stay the proceedings as an abuse of process, she pleaded guilty to the offence of wilfully failing to answer questions asked under Schedule 7 paragraph 2.
+She was sentenced to be conditionally discharged.
+History of the power
+Although now contained in the TA 2000, the power to question at ports and borders in relation to possible terrorism has been in existence in the UK for 40 years.
+It was amongst powers introduced, initially as temporary measures, by the Prevention of Terrorism (Temporary Provisions) Act 1974, which was passed in response to the then threat of IRA terrorism and the bombing campaigns associated with it.
+Terrorism legislation has been subject to almost continuous scrutiny ever since.
+Other powers introduced by the 1974 Act have not survived, notably a power for the Secretary of State, of his own motion, to remove from Great Britain, and thereafter to exclude, any person he was satisfied was a terrorist, even UK citizens unless they were long term residents.
+But the power to question at ports and borders has been re enacted at regular intervals since 1974.
+It was re enacted annually until 1984, and then replaced by the Prevention of Terrorism (Temporary Provisions) Act of that year.
+That in turn was replaced by the Prevention of Terrorism (Temporary Provisions) Act 1989, which itself was renewed annually until replaced by the TA 2000.
+Quite apart from the examination involved in repeated Parliamentary re enactment, there have been both specific inquiries and continuous review.
+A review of the then new 1974 Act was undertaken shortly afterwards by Lord Shackleton (Review of the operation of the Prevention of Terrorism (Temporary Provisions) Acts 1974 and 1976 (Cmnd 7324), August 1978).
+A further wholesale independent inquiry into terrorism legislation was undertaken in 1995 1996 by Lord Lloyd of Berwick, then, as a Law Lord, one of the UKs most senior judges (Inquiry into Legislation Against Terrorism (Cm 3420), October 1996).
+The occasion for his review was the then current hope for a peaceful accord in Northern Ireland, and he reported on the situation as it might be if that occurred; the prospect was subsequently confirmed by the Good Friday Agreement of 1998.
+The government then conducted a public consultation on terrorist legislation in 1998.
+More recently, in 2012 2013, the government undertook a further public consultation specifically in relation to the Schedule 7 powers and, independently of any tabled legislative proposal, the joint committee on human rights of the Houses of Parliament then examined the powers in 2013 and produced a public report.
+In addition to those specific inquiries, there has been in existence since 1984 the office of Independent Reviewer of terrorism legislation, currently pursuant to section 36 of the Terrorism Act 2006.
+The reviewers have been distinguished independent lawyers, charged with reporting at least annually on the structure and working of the legislation.
+Their reports must be laid before Parliament and thus the public.
+Lord Lloyd, successive Independent Reviewers, and the joint committee have all advised that the port questioning power should remain, in some cases with suggested modifications, some of which have been made.
+The power to detain was originally limited to 12 hours.
+It was reduced to nine hours in 1998 after Lord Lloyd had suggested a six hour limit.
+It was further reduced to the present six hours by the 2014 Act, following the 2012 2013 consultation.
+At the same time other alterations were made to the Schedule 7 powers by Schedule 9 to the 2014 Act: (i) searches were confined to non intimate searches, with the restrictions on strip searches described above introduced (para 8(3) to (7)); the power to take blood and urine samples was removed; (ii) (iii) a person detained was ensured the right to have a third person informed, when detained at the port as well as if taken to a police station (Schedule 8 paragraph 6(1)) (iv) similarly all persons detained were ensured the right to consult a solicitor, and the questioning is now to be postponed until his arrival unless that would prejudice the inquiry being made (Schedule 8 paragraph 7A); (v) A new requirement for periodic review of detention by a senior officer (vi) was introduced (Schedule 8, Part 1A); and the power to retain documents or data was supplemented by a specific power to copy them, with the same limit to seven days or during a criminal or deportation inquiry.
+The Code of Practice
+The current Code of Practice was issued in 2014.
+Amongst its provisions are the following: (i) examining officers must be specially trained and authorised for the purpose and must normally be police officers; an immigration or customs officer is in effect to be used only exceptionally and when specifically designated by the Secretary of State after consultation with the chief officer of police on both his training and the proposal for his designation (paras 8 to 13); (ii) officers are advised that it will often be helpful to ask initial screening questions without compulsion and that this may avoid the need for the exercise of Schedule 7 powers (para 20); (iii) emphasis is placed upon the need to avoid discrimination and/or arbitrary action, by selecting persons only for the statutory purpose; selection must not be based solely upon the ethnic background or religion of the individual but rather must be informed by considerations relating to the threat of terrorism (paras 18 19); (v) (iv) persons questioned must be informed clearly of the statutory basis for what is being done and of the procedure for feedback or complaint (para 22); if a person questioned but not detained asks to notify a third party and/or to consult a solicitor, these requests should be granted (paras 41 42); records must be kept of the fact and duration of each examination and detention and, from April 2015 when the equipment will be in place, examinations of those in detention must be audio recorded (paras 43 and 66 68); (vi) (vii) guidance is given as to when it may be appropriate to exercise the power of detention; essentially this will be when detention is made necessary by lack of co operation; officers are instructed that if questioning is to last longer than an hour, formal detention must take place before the hour elapses (paras 45 46).
+Use of the power
+The Independent Reviewers have set out the use of, inter alia, the Schedule 7 powers.
+In 2013 there were approximately 245m passenger movements through the ports of the UK.
+In 2012 2013, 61,145 were examined under Schedule 7, and in 2013 2014 47,350 were.
+Others were asked screening questions, but these entailed the use of no compulsory powers.
+It follows that the proportion of passengers examined under compulsion was between 0.02% and 0.025%, or between 1 in 4,000 and 1 in 5,000.
+Of the 47,350 examined in 2013 2014, before a decision on detention was required to be made within the first hour, all but 1,889 were dealt with within that time and only 517 were detained (a fraction over 1% of those examined or very roughly 1 in 500,000 passengers).
+The Reviewers reports show that the numbers examined have been falling steadily over the past five years.
+The Reviewers themselves, whilst concluding that the Schedule 7 questioning power should be retained, have consistently counselled against its over use, and have not detected such.
+They have also reported favourably on the manner in which they have observed the power being exercised.
+The independent reviewer: recent reports
+There has been broad consensus over recent years in the conclusions of successive Independent Reviewers as to the Schedule 7 powers.
+It will suffice to refer to the most recent reports of David Anderson QC.
+These reports make clear the conclusion that the presence of a port questioning and search power which does not require prior objectively established suspicion on reasonable grounds has undoubted utility in the struggle against terrorism.
+The June 2012 report sets out these conclusions at para 9.43ff, and subsequent reports make clear that they still hold good.
+The questioning and search powers are found to have three principal values and one ancillary one: (a) (b) (c) (d) in providing evidence which assists in the conviction of terrorists; in furnishing intelligence about the terrorist threat; in disrupting and deterring terrorist activity; and, as an ancillary benefit; in enabling the recruitment of informants.
+The principal source of evidence subsequently used either in evidence or in investigations leading to conviction is material found on persons questioned, especially the contents of mobile telephones, laptops or data storage devices such as pen drives.
+The Reviewer catalogued five different examples, over a four year period, of convictions deriving from evidence produced from the exercise of Schedule 7 powers.
+Even more potent, the Reviewer concluded, has been the gathering of valuable intelligence.
+Sometimes this may trigger a train of inquiry which leads directly to a prosecution; on far more occasions it is the accumulation of individually small pieces of intelligence which, combined, may inform both particular and general responses to the terrorist threats confronting this country.
+It is a commonplace of detective or security work that a jigsaw approach can yield vital results beyond the significance initially apparent from any single piece of information.
+The Reviewer has satisfied himself that port checks can help to dissuade young, nervous or peripheral members of terrorist networks from their plans.
+Stops not based on intelligence can help to inhibit the use of clean skins or persons selected for their absence of any prior known connection with terrorism.
+The knowledge of port stops can help to disrupt plans which involve international travel.
+The Reviewer has attended training sessions for examining officers and has watched them at work.
+His conclusion is that the examinations he saw were non confrontational, considerate and no longer than necessary (June 2012 report, para 9.61).
+He comments specifically on being struck by the light touch and professionalism displayed by nearly all the ports officers observed. (ibid para 9.58).
+In his June 2014 report Mr Anderson expressly considered the potential for ethnically discriminatory use of these powers.
+The Strasbourg court had adverted in Gillan v United Kingdom (2010) 50 EHRR 1105 to this potential in the context of the different powers there studied (see below), and the Equality and Human Rights Commission had addressed the same issue, as it helpfully has before this court.
+The Reviewer found that there was a significantly higher incidence of the use of Schedule 7 powers in relation to persons of Asian origin than there was for those of white, black or other origin.
+He made adjustments for the lower proportion of Asian persons travelling through ports than in the population generally, but there remained a clearly greater use of the powers in the case of such persons.
+He concluded that if Schedule 7 were intended to be operated on a random basis, this would be worrying, but that since the powers were, as required by the Code, to be operated having regard to the nature of the terrorist threat confronted by this country, this was, in conditions of the present threat, inevitable and indeed an indication that the Schedule was being properly used.
+His conclusion was expressed at paras 7.11 and 7.14 as follows: If Schedule 7 is being skilfully used, therefore, one would expect its exercise to be ethnically proportionate not to the UK population, nor even to the airport using population, but rather to the terrorist population that travels through UK ports.
+I have no reason to believe that Schedule 7 powers are exercised in a racially discriminatory manner.
+The so called disproportionality identified by the EHRC is not evidence (and not suggested to be evidence) of this.
+What matters is that Schedule 7 should be operated responsively to the terrorist threat.
+The ethnicity figures are not indicative of a failure to do this.
+The Reviewer made several recommendations for changes in Schedule 7.
+To the extent that these have been adopted either by statute or the Code (see paras 16 and 17 above) they need not be further rehearsed.
+He also made recommendations which have not been adopted, the principal of which were as follows (July 2014 report, paras 19ff): (a) (b) (c) that detention should be permitted only when a senior officer is satisfied that there are (subjectively judged) grounds for suspicion that the person falls within section 40(1)(b); that a similar condition should govern the copying and retention of data downloaded from electronic devices; and that a statutory bar be introduced on the admission of anything said in a Schedule 7 interview in any subsequent criminal trial.
+The different powers
+In analysing the lawfulness of Schedule 7 it is convenient to break them down into (a) the power of port questioning and search, (b) the power of detention and (c) the power to inspect data on any electronic device carried and to copy and retain that data.
+Port questioning and search: article 8
+There was, rightly, no dispute before us that Schedule 7 questioning and search under compulsion constitutes an interference with the private life of a person questioned.
+It does not follow that screening questions without compulsion do so, and they would appear not to pass the threshold of interference, but that issue does not arise on the facts of this case.
+The issue here, accordingly, is whether the interference by questioning and search under compulsion is justified under article 8(2).
+In order for it to be justified, it must be (1) in accordance with the law and (2) a proportionate means to a legitimate end.
+In accordance with the law
+It is well established that the primary constituent of the requirement that interference with an ECHR right must be in accordance with the law (legality) is that there must be a lawful domestic basis for it, that this law must be adequately accessible to the public and that its operation must be sufficiently foreseeable, so that people who are subject to it can regulate their conduct.
+An example of a case which failed these primary tests is Malone v United Kingdom (1985) 7 EHRR 14, where it was found to be impossible to say with any reasonable certainty what elements of the powers to intercept communications were incorporated in legal rules and what elements remained within the discretion of the executive.
+The requirement of legality, however, is now established to go further than this.
+It calls for the law to contain sufficient safeguards to avoid the risk that power will be arbitrarily exercised and thus that unjustified interference with a fundamental right will occur.
+This proposition has often been re stated by the European Court of Human Rights (ECtHR).
+An example is S & Marper v United Kingdom (2008) 48 EHRR 1169, para 95: The court recalls its well established case law that the wording in accordance with the law requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of article 8.
+The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual if need be with appropriate advice to regulate his conduct.
+For domestic law to meet these requirements, it must afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise (see Malone v United Kingdom 1984 7 EHRR 14, paras 66 68; Rotaru v Romania (2000) 8 BHRR 449, para 55; and Amann v Switzerland (2000) 30 EHRR 843, para 56).
+Legality in this latter sense may be failed, for example, where there is an over rigid regime which does not contain the flexibility which is needed to avoid an unjustified interference with a fundamental right.
+This was the situation in both MM v United Kingdom [2012] ECHR 1906 and R (T) v Chief Constable of Greater Manchester Police (Liberty intervening) [2014] UKSC 35, [2015] AC 49.
+In those cases the statutory rules under which recordable convictions and cautions were automatically retained and compulsorily disclosed upon applications for particular forms of employment were held to fail the test of legality.
+This was in large part because they were without any flexibility or discretion to allow for the case where the recorded matter was irrelevant to the proposed employment and thus disclosure would constitute an unjustified (disproportionate) interference with article 8 rights.
+The safeguards (there of discretion or flexibility) were required in order to guard against automatic operation of the rule resulting in disproportionate interference with article 8 rights.
+It was in this context that Lord Reed observed in R(T), at para 114, that to satisfy the test of legality there must be sufficient safeguards in place to demonstrate that the State has properly addressed the issue of the proportionality of any interference and enabled it to be examined in a particular instance.
+In other situations, however, legality is relevant to the reverse case of discretionary power.
+Here what legality may require is that the safeguards should be present in order to guard against overbroad discretion resulting in arbitrary, and thus disproportionate, interference with Convention rights.
+The present is a case where the complaint of lack of legality is of this latter kind.
+In both kinds of case, the issue of legality is thus, whilst distinct from proportionality, closely linked to it.
+In both kinds of case, legality is a prior test which is designed to ensure that interference with Convention rights can be proportionate.
+It does not, however, subsume the issue of proportionality, whether the issue is the proportionality of the measure as a whole or the proportionality of its application in a particular case.
+As recorded above, there has been unanimity amongst all the independent reviews of the port questioning power as to its utility.
+This is clearly relevant to the question of the proportionality of the power, but it does not contribute significantly to the question of its legality.
+It is obvious that an arbitrary power can be useful, but it is not legitimate.
+In Gillan v United Kingdom (2010) 50 EHRR 1105 the Strasbourg court applied these principles to a different set of counter terrorist provisions of the TA 2000 and, differing from the House of Lords (R (Gillan) v Comr of Police of the Metropolis [2006] 2 AC 307), found that those failed the test of legality.
+There, the provisions in question were sections 44 46 TA 2000, which enabled a senior police officer to designate an area for a period of 28 days as one in which police officers could stop and search any person for articles of a kind which could be used in connection with terrorism.
+The power to stop and search did not depend on the existence of any objectively judged grounds for suspicion relating to the person intercepted.
+That characteristic is shared by the Schedule 7 power of port questioning here under consideration.
+The appellant in the present case relies heavily on that decision and contends that the port questioning power similarly fails the test of legality.
+The fact that the power was exercisable without depending on any prior suspicion, subjective or objective, was one of the reasons for the Strasbourg courts conclusion in Gillan.
+At para 83 the court said this: Of still further concern is the breadth of the discretion conferred on the individual police officer.
+The officer is obliged, in carrying out the search, to comply with the terms of the Code.
+However, the Code governs essentially the mode in which the stop and search is carried out, rather than providing any restriction on the officers decision to stop and search.
+That decision is, as the House of Lords made clear, one based exclusively on the hunch or professional intuition of the officer concerned.
+Not only is it unnecessary for him to demonstrate the existence of any reasonable suspicion; he is not required even subjectively to suspect anything about the person stopped and searched.
+The sole proviso is that the search must be for the purpose of looking for articles which could be used in connection with terrorism, a very wide category which could cover many articles commonly carried by people in the streets.
+Provided the person concerned is stopped for the purpose of searching for such articles, the police officer does not even have to have grounds for suspecting the presence of such articles.
+As noted by Lord Brown of Eaton under Heywood in the House of Lords [at para 74], the stop and search power provided for by section 44, radically . departs from our traditional understanding of the limits of police power.
+Whilst that factor is common to the provisions considered in Gillan and the present ones, there are otherwise very significant differences between that case and this.
+First, the section 44 power was exercisable in relation to any person anywhere in the street, whereas the Schedule 7 power is confined to those who are passing through ports of entry/exit.
+The public in this country has historically enjoyed the right to free movement about the streets and the power to stop and search is, as Lord Brown observed, a substantial intrusion upon it.
+In this country, there is no general requirement for identity documents to be carried and produced on demand when a citizen is out and about.
+By contrast, those who pass through our ports have always been adjusted to border controls, including the requirement to identify oneself and to submit to searches and answer questions in aid of general security.
+The potential importance of intercepting, detecting and deterring terrorists at border points is generally recognised.
+The current public concern about those leaving this country with a view to joining terrorist groups abroad is simply an example.
+The intrusion inherent in stopping for questioning and/or search is accordingly less at border points.
+As long ago as 1981 the European Commission on Human Rights referred in McVeigh, ONeill and Evans v United Kingdom (1981) 5 EHRR 71, para 192 to this factor, and to the widely recognised importance of controlling the international movement of terrorists.
+In his 1996 report Lord Lloyd identified it in the following passage: 10.27 As an island nation it has long been the British way to concentrate controls at its national frontiers, and to maintain a correspondingly greater freedom from random checks inland.
+This is not always the practice adopted in continental countries which have long land frontiers.
+But our geography gives us a unique opportunity to target checks where they are likely to be most effective; namely at the choke points provided by our ports and airports.
+That, of course, is where immigration and customs controls are also to be found.
+But it is only by virtue of the PTA [ie the then Prevention of Terrorism (Temporary Provisions) Act 1989] that the police have any power to stop and question people passing through ports.
+Immigration checks on EU nationals having in most eases been reduced to a simple passport check, only a separate police check is likely to identify a terrorist suspect if he is a national of an EU country.
+Lord Lloyd added at para 10.47 that the port powers were among the less controversial of the provisions in the statute and that very few of those who submitted evidence to him took exception to them.
+Those who did were comprised chiefly of those who were regular travellers to and from Ireland, who might at that time experience frequent questioning, together with pilots who wished to use airfields which were not authorised and port operators who wished to speed up the movement of travellers through their domains.
+This distinction between port controls and street searches is by no means confined to the UK.
+In the USA, for example, border searches of persons or packages are a long recognised exception to the Fourth Amendments prohibition on searches without probable cause and a warrant: see for example the decision of the Supreme Court in United States v Ramsey 431 US 606 (1977).
+Similarly, the Canadian Supreme Court referred in R v Simmons [1988] 2 RCS 495, 528 (in the context of holding that a contraband search based on reasonable suspicion of the presence of smuggled material is an exception to the usual requirements for searches imposed by section 8 of the Charter) to the fact that the degree of personal privacy reasonably expected at customs is lower than in most other situations.
+Delivering the majority opinion, Dickson CJ observed: People do not expect to be able to cross international borders free from scrutiny.
+Consequently, travellers seeking to cross national boundaries fully expect to be subject to a screening process.
+This process will typically require the production of proper identification and travel documentation and involve a search process Of course, the powers there under consideration differed from the present, as did the grounds for their exercise.
+The relevance of the cases is the recognition that public expectations are different at borders and that the intrusion represented by checks, questioning and searches is less than it is elsewhere.
+Second, the Strasbourg court in Gillan had great regard to the manner in which the section 44 power was actually being used, and in which controls over it provided by the statute were in fact not working.
+It identified several different failings. (a) Although there was an authorisation procedure for designation of a particular area, it depended only upon the senior police officer determining that such designation was expedient, which, unlike a test of necessity, betokened no assessment of proportionality (para 80). (b) Although authorisation required the approval of the Secretary of State, he had no power to alter the geographical scope of it, nor was there any evidence that he ever altered the time limit (para 80). (c) Much more significantly, for some years there had been, in the Metropolitan Police district, continuous rolling authorisations for the whole of the area, with each 28 day period being succeeded immediately by another (para 81).
+The result was that in the whole of Greater London any person might be subject to stop and search anywhere in the streets at any time.
+The same did not apply in other cities even when there might be specific reason for heightened terrorist alert (para 40).
+There was thus every sign that the authorisations were not responsive to particular calls for them, as they were clearly intended to be.
+This misuse of authorisations had been identified by the then Independent Reviewer, Lord Carlile, in 2002.
+It contrasted with the position at the time of Lord Lloyds inquiry six years earlier, when he had reported (at para 10.22) that the power was used with great discretion. (d) The evidence recorded by the Independent Reviewer showed a rapidly mushrooming use of the power of stop and search, from about 33,000 in 2004/2005 to triple that (117,000) in 2007/2008 (para 83). (e) The Independent Reviewer was an additional safeguard but although he had been calling for some years for the power to be used less, this had not been heeded (para 82). (f) The Independent Reviewer had, moreover, found that poor and unnecessary use of section 44 abounded, and he reported evidence of cases where the person stopped was so obviously far from any known terrorist profile that there was, realistically, not the slightest possibility that he or she was a terrorist, and there was no other reason for the stop (para 84).
+He had concluded that the evidence showed that section 44 was in some cases being used unacceptably as an instrument to aid non terrorism policing (para 43). (g) There was evidence of the section 44 power being used in a discriminatory fashion against black and Asian persons and indeed of a practice developing of stopping white people for no other reason than to produce greater racial balance in the statistics (para 85). (h) There was a real risk of the section 44 power being misused against demonstrators and protestors in breach of articles 10 or 11 (para 85).
+These factors demonstrated in Gillan that the apparent safeguards against disproportionate interference with Convention rights which were provided in the case of section 44 were ineffective.
+None of these factors, however, applies to port questioning and search powers.
+By contrast, in relation to them, the frequency of use has diminished, the Independent Reviewer endorses their continuation without expressing anxiety of misuse, his suggestions for improvements have been heard, and additional safeguards for the individual have been introduced as set out at paras 16 and 17 above.
+Although it is obvious that questioning is in one sense a different power from search, there are in the case of port questioning and search powers sufficient effective safeguards in the manner of operation to meet the requirement of legality.
+They include: (i) (ii) (iii) (iv) (v) (vi) the restriction to those passing into and out of the country; the restriction to the statutory purpose; the restriction to specially trained and accredited police officers; the restrictions on the duration of questioning; the restrictions on the type of search; the requirement to give explanatory notice to those questioned, including procedure for complaint; (vii) the requirement to permit consultation with a solicitor and the notification of a third party; (viii) the requirement for records to be kept; (ix) the availability of judicial review; the contention of the appellant and of Liberty that judicial review would be ineffective is overstated; judicial review is available if bad faith or collateral purpose is alleged, and also via the principle of legitimate expectation where a breach of the Code of Practice or of the several restrictions listed above is in issue; courts are well used to requiring police officers to justify their actions and to drawing the correct inference if there is material to do so; use of the power for a collateral purpose, such as to investigate a non terrorism suspected offence, would be likely to become apparent, as it did in the case of section 44 see para 41(f), (g) and (h) above. the continuous supervision of the Independent Reviewer is of the first importance; it very clearly amounts to an informed, realistic and effective monitoring of the exercise of the powers and it results in highly influential recommendations for both practice and rule change where needed. (x)
+The fact that questioning is not dependent on the existence of objectively established grounds for suspicion does not by itself mean that there are not adequate safeguards or that the power is not in accordance with the law.
+If that had been enough, the long discussion in Gillan of the failures of the safeguards would have been unnecessary.
+That is also to an extent illustrated by Colon v Netherlands (2012) 55 EHRR SE45 where a power of universal or random search in aid of public order in a particular area was held to meet the requirement of legality, although not grounded on any basis of suspicion.
+Certainly the power was granted for a short period, but that does not affect the principle.
+In the particular instance of the exercise of the power which had there occurred the searching had been universal, which meant that there was no potentially arbitrary selection by police officers, but the power did not have to be exercised in that way; random selection for search was equally permitted.
+The applicants contention in that case appears to have been limited to the absence of prior judicial approval, but the court reviewed Gillan and it seems clear that if it had concluded that the power failed for want of a suspicion based grounding, it would have said so, particularly since its practice is to consider issues of its own motion under the principle jura novit curia: see for example MM v United Kingdom (supra) at para 150.
+For these reasons the principle of legality is satisfied in relation to the Schedule 7 port questioning power.
+The suggested analogy with Gillan requires examination but fails.
+The need for safeguards is measured by the quality of intrusion into individual liberty and the risk of arbitrary misuse of the power.
+The intrusion into individual liberty is of a significantly lesser order at ports than in the streets generally.
+There are sufficient safeguards against arbitrary use of this power which either were not present or were not working in Gillan.
+There are effective controls via judicial review and the Independent Reviewer which prevent arbitrary use of the power or provide a correction if it should occur.
+Proportionality
+In Bank Mellat v HM Treasury (No 2) [2013] UKSC 39; [2014] AC 700, 770 771, para 20 Lord Sumption conveniently formulated the concept of proportionality into four questions.
+There has been no dispute in the present appeal about this formulation: (i) is the objective sufficiently important to justify limitation upon a fundamental right? (ii) is the measure rationally connected to the objective? (iii) could a less intrusive measure have been adopted? (iv) has a fair balance been struck between individual rights and the interests of the community?
+So far as concerns the power of port questioning and search the live dispute is as to the combination of the last two questions, which are inevitably linked.
+As to the first, the objective of Schedule 7 is clearly not border control per se but rather the prevention and detection of terrorism.
+That is clearly sufficiently important to justify some intrusion upon article 8 rights.
+The power of questioning and search is rationally connected to that objective; it is designed to serve it and the unanimous findings of the Independent Reviewers demonstrate its utility in aid of it.
+The appellant contended that it was not rationally connected to ports and borders, but that is not the question.
+Rather that contention is another way of confronting questions (iii) and (iv); moreover there is a plain rational reason for connecting questioning and search aimed at the prevention and detection of terrorism with border control.
+Of course acts of terrorism may be entirely confined to these shores, but it is obvious that those concerned in acts of terrorism, at whatever level, are very likely to be travellers and, certainly given the sources of present terrorist threats, to have international connections leading to travel.
+The current concern for outgoing travellers, some very young, seeking to join terrorist organisations abroad is merely an example.
+The gravamen of the appellants case is that all questioning and searching is plainly disproportionate unless it is based upon an objectively established reasonable ground for suspecting the person concerned of being within section 40(1)(b).
+Thus her case is that a less intrusive measure, namely a power based on such objective grounds for suspicion, could and should have been adopted, and that failure to do so does not strike a fair balance.
+The answer to these two linked questions depends in the end on the balance between the level of intrusion for the individual and the value of the power in community purpose served.
+It is common ground that the State is entitled to a generous margin of judgment in striking this balance.
+The importance for the public of the prevention and detection of acts of terrorism can scarcely be overstated and the level of risk of such acts is at least as high now as it has been at any time in the 40 years since these powers were introduced, though of course the sources of the threats have changed from time to time.
+Lord Lloyds 1996 report referred in the passage quoted at para 39 above to the unique opportunity to target checks where they are likely to be most effective, namely at the choke points provided by our ports and airports.
+He went on to record that the port checks were designed to deter terrorists from entering the UK to catch those who try: and to collect intelligence on the movement of persons of interest.
+He concluded that the intelligence which they yielded is a valuable by product of the work of the port examiners, and that he had heard that it makes a real contribution to the counter terrorism effort (para 10.41).
+The unanimous view of all independent observers who have considered the matter has consistently been that questioning and search powers which are not grounded on objectively demonstrable reasonable suspicion of involvement in terrorism are of undoubted value in the struggle against the threat of terrorism, and that to restrict the powers to those in respect of whom a reasonable suspicion can be demonstrated to the satisfaction of a court would not achieve anything like the same utility.
+The present Independent Reviewer gave specific consideration to this in his July 2013 report at paras 10.58ff.
+He gave examples of the detection and prevention of terrorist activity in cases where the threshold of objectively demonstrated grounds for reasonable suspicion would not have been passed.
+He adverted to the way in which, if such a threshold had to be passed, the use of clean skins (or previously innocent unknowns) could thwart investigation, travelling companions of known suspects could not be questioned and those actively involved in terrorism would be likely to be alerted (and, he might have added, likely to be given an insight into intelligence gathering).
+There is no reason to doubt these conclusions.
+In particular, it is clear that the vital intelligence gathering element of Schedule 7 would not be achieved if prior suspicion on reasonable grounds were a condition for questioning.
+A distinct issue relating to proportionality arises in connection with any potential for discriminatory application of the powers.
+There is in this case no separate claim that the appellant suffered discrimination, nor could there be given her husbands apparent connection with some form of terrorism.
+But if there were a real potential for misuse of the power on a racially discriminatory basis, that would be a reason pointing towards a lack of proportionality, and thus of justification.
+For the reasons explained by the Independent Reviewer, however, (see para 25 above) this risk is not a substantial one.
+Moreover the Code of Practice (para 43) requires that the records kept of examinations should detail the self declared ethnicity of the subject, which is a guard against discriminatory misuse.
+Nor is there any sign of compensatory selection of white subjects simply in order to balance the statistics, as there was found to be in relation to section 44 see para 41(g) above.
+Some degree of profiling of potential subjects for questioning is inevitable given the sources, from time to time, of terrorist threat.
+The present Code of Practice (at para 4) does little more than rehearse the public sector duty under the Equality Act 2010.
+Its later provisions in paras 18 and 19 do confront the issue more directly and they make clear that selection for questioning must be informed by the known sources of terrorist threat.
+However the statement that ethnic background or religion must not be used alone or in combination with each other as the sole reason for selecting the person for examination (para 19) is potentially confusing.
+The two propositions could usefully be drawn together.
+What needs to be made clear is that neither ethnic background nor religion can (separately or together) be the sole criterion for selection, unless present in association with known terrorist profiles or with other relevant characteristics, such as age, mode of travel, destination or origin.
+Overall, the level of intrusion into the privacy of the individual is, for the reasons which have been explained above, comparatively light and not beyond the reasonable expectations of those who travel across the UKs international borders.
+Given the safeguards set out above, it is not an unreasonable burden to expect citizens to bear in the interests of improving the prospects of preventing or detecting terrorist outrages.
+In those circumstances, the port questioning and associated search powers represent a fair balance between the rights of the individual and the interests of the community at large and are thus not an unlawful breach of article 8.
+Detention: article 5
+The power of detention here under consideration exists only as an ancillary to the Schedule 7 powers of port questioning and search, that is to say to reinforce them and to make them effective.
+Such detention falls within article 5(1)(b) in that it is made in order to secure the fulfilment of an obligation prescribed by law.
+It follows that what has already been said about the port questioning and search powers applies also to detention, and that the safeguards which exist in relation to them stand also in relation to detention.
+It does not, however, follow, although the Divisional Court [2014] QB 607 thought otherwise, that the power of detention is automatically justified.
+The level of intrusion occasioned by detention for up to six hours is of a different order to the intrusion occasioned by compulsory questioning and search, and it does not follow either that the safeguards which are adequate for the one are sufficient for the other, or that the fair balance between the rights of the individual and the interests of the public falls in the same place.
+Detention under Schedules 7 and 8 may involve the removal of the individual to a police station, and even if it is conducted entirely at the port it represents a substantial interference with the freedom to travel on either in or out of the country and to go about ones ordinary business.
+The question of the compatibility of the power of detention with article 5 only barely arises in the present case.
+The appellant was prevented from moving on from the airport for about an hour and three quarters, some of which time she chose to use for prayer and thus to an extent delayed the questioning process.
+Whether that period was sufficient to constitute a deprivation of liberty for the purposes of article 5 is a question to which the answer is not clear.
+Deprivation of liberty, contrary to article 5, is to be contrasted with a simple restriction of freedom of movement, which is the subject of article 2 of Protocol 4, to which the UK is not a ratifying party: see Austin v United Kingdom (2012) 55 EHRR 359, where public order containment for several hours was held not to infringe article 5.
+We were referred also to the admissibility decision of the ECtHR in Gahramanov v Azerbaijan (Application No 26291/06) (unreported) given 15 October 2013, in which the applicant was prevented for (on his own case) some four hours from leaving, after being stopped at an airport.
+The court held the complaint inadmissible on the ground that it had not been shown that he had been obliged to remain any longer than was necessary to ascertain his status.
+In the present case the Secretary of State, as intervener, disputed that the appellant had suffered a deprivation of liberty.
+However, in the court below the Crown conceded that she had.
+It is helpful to address the question of detention more generally.
+To the extent that it is necessary to prevent a person being questioned from leaving whilst the process is underway, some degree of restriction of movement is a proper corollary of the port questioning and search power.
+It will usually not constitute a deprivation of liberty, as in Gahramanov.
+Even if it does, it will if it is for no more than is necessary to complete the process, be justified.
+The separate sanction of prosecution for the offence of failing to comply with the requirements of Schedule 7 may not be sufficient to ensure that questioning and search are effective and may not always bite on those who are leaving the country.
+What is not easy to see is why detention for as long as six hours can be necessary for this purpose.
+If a subject is bent on refusal, the additional period in a police station is unlikely to make a difference, and in any event the interference with personal liberty is sufficiently serious to call for greater justification than this.
+To be proportionate detention for this length of time calls for objectively demonstrated grounds, such as a suspicion on reasonable grounds that the subject falls within section 40(1)(b) or, of course, other grounds for arrest.
+The Independent Reviewer also had doubts about the power of detention, although he contemplated a test of subjective, rather than objectively justified, suspicion.
+The better view is that if detention beyond what is necessary to complete the process is to be undertaken it ought to be justified by objectively demonstrated suspicion.
+A refusal to co operate after explanation that the purpose of inquiry is to establish whether the subject is within that section might, depending on the circumstances, itself provide or contribute to grounds for such reasonable suspicion that he is, especially, for example, if he fails to identify himself.
+But it will not always do so; everything will depend on the facts.
+The Independent Reviewer doubted whether this would be so at the outset of questioning, and he is no doubt right that often it would not, but for the reasons given it is at that stage perfectly proportionate to prevent the subject moving on for a reasonable time whilst questions are asked, possessions inspected and any search undertaken.
+To the extent that there was any deprivation of liberty in the present case, it seems clear that it was for no longer than was necessary for the completion of the process.
+There was no requirement to attend a police station.
+Accordingly, there was in this case no breach of article 5.
+Inspection, copying and retention of electronic data
+The use of this power does not arise in the present appeal and it was not separately argued.
+The inspection of electronic data is no doubt akin to the inspection of written documents, or for that matter the inspection of baggage or possessions, and it may, as in those analogous cases, yield valuable intelligence, especially of contacts between persons who have separately come to attention.
+The Independent Reviewer has emphasised the value of material extracted from such sources (see para 21 above).
+But the retention of such data is a considerable intrusion into the private life of the subject, particularly given the volume and content of personal material which is kept nowadays on mobile telephones or portable computers.
+Paragraph 11A(3) of Schedule 7 permits retention under three heads.
+Under para 11A(3)(b) it may be retained while the examining officer believes it may be needed as evidence in criminal proceedings.
+Under para 11A(3)(c) it may be retained while he believes it may be needed in connection with an immigration decision.
+There appears no arguable disproportion in these provisions.
+But under para 11A(3)(a) it may be retained for so long as is necessary for the purpose of determining whether a person falls within section 40(1)(b).
+To the extent that this justifies retention for the duration of the stop, and for a short period afterwards to compare records, this would appear not to be disproportionate.
+Retention for long enough to compare with other records necessarily goes with the power to inspect, which would otherwise be of very limited value.
+But if para 11A(3)(a) were to be used to justify retention indefinitely so as to provide a bank of data, that would seem to be a different matter.
+Other objects seized cannot be retained beyond seven days in the absence of potential use as evidence on criminal or immigration issues (para 11(2)(a)).
+The Code (para 40) offers no further guidance on the retention of electronic data.
+In a case such as that postulated there appears to be a good deal of force in the Independent Reviewers conclusion that greater safeguards are called for (see para 26(b) above).
+His proposal was for a requirement that subjective suspicion should be enough, that it should be required for both copying and retention, and that if it exists both copying and retention should follow.
+It may be that the better view is that copying and initial inspection for a reasonable period should be governed by the same criteria as port questioning and the other search and retention powers, but that if longer retention is to be justified objectively established grounds for suspicion should be required.
+Whether the right period for initial inspection is the seven days prescribed for other material obtained by search would need evidence which this court has not needed to be given.
+Moreover, there ought to be verifiable means of destruction if retention is not justified.
+A definitive ruling on such matters must, however, if suitable adjustments are not made to the legislation or Code, await a case in which they are directly raised.
+It may also be necessary then to give detailed consideration to the inter relation between such data retention and other surveillance and data interception powers.
+Self incrimination and article 6
+Two related questions arise at this stage: (a) could the appellant avail herself of the common law privilege against self incrimination when questioned under Schedule 7 or is that privilege inapplicable either because it is by necessary inference abrogated by the statute or because in the case of a person questioned under its powers no sufficient risk existed of the answers being used in criminal proceedings against either that person or her spouse? and (b) was the appellant in any event provided with a privilege against self incrimination by article 6 of the ECHR? In the Divisional Court the appellants case seems to have been argued almost entirely upon the second of these questions, but the first was fully raised in this court and should be addressed first.
+The privilege against self incrimination is firmly established judge made law dating from the 17th century abolition of the Star Chamber: see Holdsworths History of English Law (3rd ed) (1944) and Bishopsgate Investment Management Ltd v Maxwell [1993] Ch 1, 17.
+It entitles any person to refuse to answer questions or to yield up documents or objects if to do so would carry a real or appreciable risk of its use in the prosecution of that person or his spouse: In re Westinghouse Electric Corpn Uranium Contract Litigation MDL Docket No 235 (Nos 1 and 2) [1978] AC 547 and Rank Film Distributors Ltd v Video Information Centre [1982] AC 380.
+If such level of risk exists, the individual should be allowed great latitude in judging for himself the effect of any particular question: R v Boyes (1861) 1 B & S 311, 330, cited with approval in Westinghouse.
+A statute may, however, exclude this privilege in a particular situation, and may do so either expressly or by necessary implication: Bishopsgate (supra).
+Because the privilege is firmly embedded in the common law, such necessary implication must be established with clarity and is not to be assumed; the approach classically enunciated by Lord Hoffmann in relation to fundamental human rights in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 131 is clearly appropriate: Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights.
+The Human Rights Act 1998 will not detract from this power.
+The constraints upon its exercise by Parliament are ultimately political, not legal.
+But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost.
+Fundamental rights cannot be overridden by general or ambiguous words.
+This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process.
+In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.
+For the appellant Mr Matthew Ryder QC correctly submitted that such a parliamentary intention will often be gathered from an ancillary provision preventing the use in criminal prosecutions of answers or material disclosed, or sometimes limiting such use to specific kinds of prosecution, such as for giving false information on the occasion of the questioning.
+As he says, no such ancillary provision is present here.
+That, however, is to overstate the position.
+There is no parliamentary consistency of practice.
+Sometimes, a statute which provides for an obligation to provide information or to answer questions will indeed say that no privilege against self incrimination may be claimed.
+Sometimes there will be added a provision that any answer given may not be relied upon in a subsequent criminal prosecution, or only in prosecutions for making a false statement in answer.
+A familiar example of both provisions occurring is section 31 of the Theft Act 1968.
+But other provisions which are clearly intended to impose an unqualified obligation to answer do not contain one, or either, of such stipulations.
+An example is afforded by the provisions considered in Bishopsgate, sections 235 and 236 of the Insolvency Act 1986.
+In that case, the Court of Appeal concluded that the transparent purpose of those provisions to enable a liquidator or similar office holder to obtain information in the public interest, would be stultified if a person required to give that information could refuse to answer by claiming privilege.
+Another illustration is R v Hertfordshire County Council, Ex p Green Environmental Industries Ltd [2000] 2 AC 412 where the House of Lords, in a speech delivered by Lord Hoffmann, held that the same applied to section 71(2) of the Environmental Protection Act 1990.
+The same applies to the present provisions.
+The Schedule 7 powers are patently not aimed at the obtaining of information for the purpose of prosecuting either the person questioned or his spouse.
+Whilst that does not by itself mean that there is no real risk that such information could be so used subsequently, it is an indicator that the process of information gathering is not to be limited by the operation of privilege.
+The reality is that Schedule 7 powers would be rendered very largely nugatory if privilege applied.
+The necessary implication is that it does not.
+Moreover, there is a powerful reason why the risk of prosecution based upon answers to Schedule 7 questioning is not a real and appreciable one.
+Whilst the mere fact that prosecution is not the purpose of such questioning does not sufficiently reduce the risk, the provisions of section 78 of the Police and Criminal Evidence Act 1984 in practice do.
+That section provides that evidence relied upon by the prosecution in a criminal trial may be excluded if it appears to the court that, having regard to all the circumstances, including those in which the evidence was obtained, its admission would have such an adverse effect upon the fairness of the proceedings that it should not be admitted.
+Before the Divisional Court, and likewise in this court, the Crown has been unable to postulate any scenario in which answers obtained under the compulsory powers afforded by Schedule 7 would not fall to be excluded under this section, and there is no known case in which such answers have been adduced in a prosecution, although on one occasion they were adduced at the request of the defendant.
+It is to be accepted as a general proposition that reliance on a judicial discretion is not to be equated, for a prospective defendant, with the exercise of his privilege against self incrimination: see observations to this effect in Rank Films (para 442) and Bishopsgate (para 19).
+But the section 78 controlling power, vested in the trial judge in criminal proceedings, is not sufficiently described as a matter of discretion.
+It is a matter of judgment.
+If in practice the outcome of the exercise of that judgment is inevitably that the evidence will be excluded, then the real and appreciable risk which the privilege against self incrimination exists to guard against is not present.
+The circumstances in which the evidence was obtained are a central consideration in the exercise of the section 78 judgment.
+Evidence obtained from the defendant himself (or his spouse) by means of legal compulsion is a classic case of evidence which it will be unfair to admit.
+Even without the direct application of article 6 ECHR the outcome of the section 78 judgment is effectively inevitable.
+Once article 6, directly binding on a court under section 6(3) of the Human Rights Act 1998, is brought into the equation, there is simply no room for any contrary conclusion, for, as is shown by Saunders v United Kingdom (1997) 23 EHRR 313 (below), article 6 has the effect that any use in a criminal prosecution of answers obtained under compulsion of law will be a breach of the right to a fair trial.
+The presence or absence of other evidence implicating the defendant is irrelevant to this proposition.
+For this reason, it is simply nothing to the point that the Director of Public Prosecutions declined in the Divisional Court to volunteer an undertaking never to seek to adduce Schedule 7 material if later there were a criminal prosecution; she would never be allowed to do so.
+For the same reason, the suggested possibility of use does not contribute to the assessment of proportionality.
+So clearly is this the inevitable outcome of the application of section 78 that it is difficult to understand why effect has not been given to the Independent Reviewers recommendation that the position be put beyond argument (such as has been made here) by the enactment of a provision making answers or information obtained inadmissible except in proceedings under para 18 of Schedule 7 or for an offence of which the gist is deliberately giving false information when questioned.
+It may be that the view has been taken that the effect of section 78 was so clear that specific provision is not necessary.
+The present argument demonstrates that it is desirable.
+Moreover, it is necessary to make the position plain in relation to the (largely theoretical) possibility that if A was indeed prosecuted, his co accused B, if hostile to him, might seek to adduce material deriving from Schedule 7 questioning; section 78 would have no application since it would not be the Crown which was adducing the evidence, and fairness might have to be achieved by the unsatisfactory method of severance.
+It is to be hoped that following the observations of the Divisional Court and (now) this court, such enactment will follow.
+Article 6 ECHR does not contain an explicit privilege against self incrimination, but it is well established that such is implicit in it.
+The trigger for the privilege is, however, that a person is charged with a criminal offence, in the special sense in which that word is used in the jurisprudence of the Strasbourg court, that is to say that his position has been substantially affected by an allegation against him and he has become, in effect, a suspect: see Lord Hopes summary of the rule in Ambrose v Harris [2011] UKSC 43; [2011] 1 WLR 2435, paras 62 63.
+If a person is charged in this sense, then the effect of article 6 will be to confer the privilege against self incrimination and any abrogation by statute of the common law privilege will accordingly be ineffective; moreover the use in a subsequent criminal trial of answers obtained under compulsion before the defendant was charged will be an infringement of the right to a fair trial.
+See for example Saunders v United Kingdom where section 434(5) of the Companies Act 1985 had abrogated the privilege.
+In that case the answers given under compulsion to DTI inspectors were adduced in a criminal prosecution of the subject and it was that which constituted the breach of article 6.
+The court made it clear at para 67 that the asking of the questions, at a stage when the defendant (as he later became) had not been charged and the purpose of the questioning was an administrative investigation quite different from a criminal one, did not amount to a breach of article 6.
+Port questioning and search under Schedule 7 TA 2000 is not part of a criminal investigation.
+Its purpose is not the accumulation of an evidential case against the subject.
+If that follows, it is a separate matter.
+The subject is not a person charged for the purposes of article 6, which has no application to him.
+The appellant was at no stage a defendant to a criminal charge and no question of a breach of a right to a fair trial arises.
+For those reasons, there was in the present case neither a wrongful denial of the common law privilege against self incrimination nor a breach of article 6 ECHR.
+Conclusion
+It follows that the appeal should be dismissed.
+LORD NEUBERGER AND LORD DYSON:
+The relevant factual and legal background is set out in the judgment of Lord Hughes at paras 1 27 above, and we agree with most of his subsequent reasoning.
+There is nothing we wish to add to what Lord Hughes says in paras 57 70 in relation to electronic data, self incrimination and article 6 of the Convention.
+However, because we consider that there is force in the opposite view, we will briefly express our reasoning on the two main points which have caused Lord Kerr to reach the opposite conclusion in relation to article 8 (albeit in a different order from that on which they are discussed in his judgment), namely proportionality (his paras 119 128) and legality ie in accordance with the law (his paras 93 111).
+Exercise of the Schedule 7 powers, and in particular exercise of the initial powers of stopping and questioning under para 2, which are the focus of this appeal, is said to involve a potential interference with the rights of the person concerned under articles 5 and 8 of the Convention.
+We agree with Lord Hughes that article 5 is not engaged for the reasons which he gives at paras 52 56 above.
+However, as he says, it is common ground that article 8 is engaged.
+Accordingly, the four requirements set out in R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre intervening) [2011] UKSC 45, [2012] 1 AC 621, para 45 (Lord Wilson) and Bank Mellat v HM Treasury (No 2) [2013] UKSC 39; [2014] AC 700, 770 771, 790 791, paras 20 and 74 (Lord Sumption and Lord Reed respectively) must be satisfied.
+We agree that the first two requirements, namely importance of objective and rationality of connection, are satisfied as Lord Hughes and Kerr say; however, unlike Lord Kerr, we also consider that the third and fourth requirements, namely necessity and fair balance (or proportionality), are satisfied.
+The two most fundamental and well established functions of any government are the defence of the realm from external attack and the maintenance of the rule of law internally.
+The powers granted to the executive by the legislature under Schedule 7 are for the purpose of ensuring national security, which includes aspects of both those vital functions as well as having the important role of curbing terrorism internationally.
+A court should be circumspect before upholding any challenge to such legislative powers, when that challenge is based on necessity or disproportionality.
+The executive is, or at any rate should be, particularly well informed and experienced in assessing any risks to national security and how to deal with them, whereas the courts are not.
+However, this does not mean that the court should simply wave through any such legislation: the rule of law crucially requires the court to be vigilant when assessing the necessity or proportionality of both the contents and the implementation of any statute which interferes with human rights.
+The importance of, and tension between, the need for circumspection and the need for vigilance is apparent from the discussion in the judgments in this court in R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2014] UKSC 60, [2015] AC 945, paras 31 44, 67 74, 104 109, 112 117 and 147 174.
+Further, as Lord Reed also said in Bank Mellat (No 2), para 71, the degree of restraint practised by courts in applying the principle of proportionality, and the extent to which they will respect the judgment of the primary decision maker, will depend on the context, and will in part reflect national traditions and institutional culture.
+In our view, it is not correct to say that in every case where the issue of necessity or proportionality arises the executive must produce positive evidence to show that the means which it has adopted to meet the objective in question is no more than is required.
+In some cases, it would be tantamount to proving a negative, which is often hard and sometimes impossible.
+It is important to be realistic as well as principled when assessing the proportionality of any means adopted: the need for a degree of reality in relation to proportionality was acknowledged by Lord Reed in Bank Mellat (No 2) at para 75.
+In any case where an issue of necessity or proportionality arises, it is appropriate to consider the third and fourth questions raised by Aquila and Bank Mellat (No 2) by reference to the practical realities of the case in question, as well as general principles.
+Turning to this case, it is of course not in dispute that properly trained police officers should have the power to exercise border controls to curb terrorism by stopping and questioning individuals entering or leaving the United Kingdom, ie at ports and borders.
+Once that is accepted, we find it hard to see how there could be any objection to giving officers the right to stop and question people at ports or borders on a random, or unpredictable, basis ie on a basis which cannot be predicted by those passing through the ports and borders provided that that right is properly regulated and supervised, and as predictable and controlled as reasonably possible.
+The legislature does not consider it necessary that officers should stop and question everyone passing through ports and borders, a course which would be self evidently generally much more intrusive on individual rights.
+In those circumstances, it is easy to understand why Schedule 7 does not limit the right to stop and question to those people who give rise to objectively explicable suspicion.
+The fact that officers have the right to stop and question unpredictably is very likely to assist in both detecting and preventing terrorism, and in deterring some who might otherwise seek to travel to or from this country for reasons connected with terrorism.
+Further, many experienced officers may have a feeling of suspicion, which is justified but objectively inexplicable, of a particular individual passing through a port or border.
+Of course, in many cases, it may be inappropriate to allow even the likelihood of an increase in the prospects of successfully achieving a legitimate aim to justify an interference with human rights.
+However, in this case, the interference is slight (see paras 51 and 54 56 above), the independent justification is convincing (see paras 39 and 49 above), the supervision is impressive (see paras 19 26 above), there are substantial safeguards (para 43 above), the benefits are potentially substantial (see paras 20 23 above), and no equally effective but less intrusive proposal has been forthcoming.
+In those circumstances, we conclude that the appeal, in so far as it is based on proportionality, should fail.
+We turn to legality.
+The requirement that legislation is in accordance with the law means (i) that the legislation must have some basis in domestic law and (ii) that it must be compatible with the rule of law, as the Grand Chamber of the Strasbourg court put it in S & Marper v United Kingdom (2008) 48 EHRR 1169, para 95.
+Unsurprisingly, it is not suggested that Schedule 7 fails to satisfy the first requirement, and the argument on legality therefore focusses on the second requirement.
+The argument that the Schedule 7 powers are incompatible with Convention rights in this connection is that they are unlawful in the light of the unpredictability of, and lack of control over, their application.
+Thus, it is said, contrary to what the Fourth Section of the Strasbourg court held was required in Gillan v United Kingdom (2010) 50 EHRR 1105, paras 76 77, the powers in question are not sufficiently precise or constrained.
+In other words, it is said that the power under paragraph 2 of Schedule 7 has not been formulated with sufficient precision to enable the individual to regulate his conduct, and it involves a legal discretion granted to the executive expressed in terms of an unfettered power.
+In Gillan, the court had to consider the lawfulness of the power conferred by section 44 of the 2000 Act on a senior police officer to designate an area anywhere in the United Kingdom as one in which the police could stop and search any person for articles in connection with terrorism.
+The designated areas were often substantial (eg the whole of the Greater London area) and the periods, although limited, were almost automatically renewed.
+Both the successful applicants and the court made the point that the power under consideration was to be distinguished from a power of search exercised at airports (paras 59 and 64).
+To use the words of the court, [a]n air traveller may be seen as consenting to such a search by choosing to travel and has a freedom of choice, whereas, under section 44, [t]he individual [could] be stopped anywhere and at any time, without notice and without any choice as to whether or not to submit to a search.
+Furthermore, the court in Gillan was also plainly influenced by a number of other factors which it mentioned in paras 83 85 of its judgment.
+Those factors were (i) the fact that the domestic court, the House of Lords, considered that the section 44 power radically . departs from our traditional understanding of the limits of police power, (ii) the very large and fast increasing number of stop and searches which were being conducted annually under section 44, (iii) the startling fact that every one of them had been fruitless, (iv) the fact that the independent reviewer had criticised the way in which stop and search under section 44 had been conducted in a number of highly significant respects, (v) the fact that black and Asian persons [had been] disproportionately affected by the section 44 stop and search system, and (vi) the fact that section 44 could be used against demonstrators and protesters in breach of articles 10 and/or 11.
+We do not read the decision in Gillan as ruling that any random stop and search system, let alone any system which permits officers randomly to stop and question preliminarily, cannot be in accordance with the law.
+This view is supported by the Third Sections decision in Colon v Netherlands (2012) 55 EHRR SE45, which upheld a universal right of stop and search in a particular area, albeit for a limited, but not inconsiderable, period.
+While the court in Colon relied in paras 73 and 76 78 on certain factors which distinguished it from Gillan, its decision emphasises how the determination of lawfulness is very sensitive to the facts of the particular case. (However, it is only fair to acknowledge that the court in Colon relied on some features of the Dutch stop and search system which are not present here.)
+The point that the lawfulness of any scheme is highly fact sensitive was made by the court in Gillan at para 77, where it said that [t]he level of precision required of domestic legislation which cannot in any case provide for every eventuality depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (a passage repeated in Colon in para 72).
+And, as the Grand Chamber observed in Rekvnyi v Hungary (Application No 25390/94) (2000) 30 EHRR 519, para 34: [w]hilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances.
+Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.
+In the same case, the Grand Chamber said at para 59 that lawfulness implies qualitative requirements in the domestic law such as foreseeability and, generally, an absence of arbitrariness.
+When considering whether the legality principle is satisfied in relation to a particular system, it appears clear from the reasoning in the judgment in Gillan that one must look not only at the provisions of the statute or other relevant instrument which gives rise to the system in question but also at how that system actually works in practice.
+There are, in our view, important differences between the statutory provisions and modus operandi of the system in this case and those of the system in Gillan, and those differences establish that the powers in this case are more foreseeable and less arbitrary than those in Gillan and, in our view, justify the lawfulness of the Schedule 7 powers.
+First, the areas in which Schedule 7 powers can be exercised are targeted by statute to specific and relatively limited and confined places, namely ports and airports.
+As Lord Lloyd put it in his report, these locations constitute the first line of defence against the entry of terrorists and, it may be added, the exit of terrorists.
+Secondly, the individuals against whom the powers in question can be exercised are limited by statute to a relatively limited, identifiable and specific group, namely, only against those passing across the UKs borders.
+Thirdly, the Schedule 7 powers may only be exercised for a limited purpose, namely to determine whether the person concerned appears to be a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism.
+Furthermore, none of the more specific concerns which the court raised in paras 83 85 of Gillan, summarised in para 83 above, appear to us to arise here. (i) The Schedule 7 powers, particularly as they are only exercisable at a port or airport, cannot be said to be extraordinary.
+Questioning, even challenging, people who are seeking to enter or leave a country is relatively commonplace.
+Physical searches at security points in airports are not infrequently conducted on a random basis. (ii) As the evidence summarised in para 18 above establishes, a relatively limited number of people are interviewed under Schedule 7, and the number has decreased each year between 2009/2010 and 2013/2014, whereas the court in Gillan (see para 84) was struck by the dramatic increase in numbers of people stopped and searched, year on year. (iii) Quite unlike the powers in Gillan, the exercise of the powers under review in the present case has produced some successful outcomes see paras 20 23 above. (iv) The independent reviewer is very positive about the way in which the Schedule 7 system is working and is being operated, as is apparent from what is said in para 24 above; indeed, he describes the system as an essential ingredient in the fight against terrorism.
+Again, this is quite different from the independent reviewers assessment in Gillan.
+By contrast with point (v) in para 83, there is no evidence that the Schedule 7 powers have been used in a racially discriminatory fashion.
+Indeed, discriminatory use is specifically prohibited by the code.
+In this connection, the independent reviewers reports quoted in para 25 above are significant.
+Finally, (vi) unlike the powers in Gillan, the Schedule 7 powers could not be used against demonstrators and protesters in breach of articles 10 and/or 11.
+It is right to add that we are not convinced that there is much force in the respondents arguments that (i) the code governing the Schedule 7 powers is more restrictive than that governing the powers considered in Gillan, or (ii) the nature of the powers exercised under Schedule 7 is less intrusive than those exercisable under the powers considered in Gillan.
+So far as point (i) is concerned, little if any argument was directed to it, and consideration of the two codes does not suggest a very significant difference between them.
+As to point (ii), we do not consider that it has much, if any, bearing on the issue of legality, although we accept that it could be of real relevance to the issue of proportionality.
+Nonetheless, these reservations do not in any way undermine the significance of the points made in paras 87 and 88 above.
+The significant differences between the Schedule 7 powers and the powers considered in Gillan, which are set out in paras 88 and 89 above do not, of course, automatically mean that the powers granted by Schedule 7 to the 2000 Act satisfy the requirement of legality.
+Legality is said to give rise to a problem for the powers granted under paragraph 2 of Schedule 7 because those powers can be exercised randomly.
+However, it is important to the effectiveness of these powers that they can be exercised in this way.
+Furthermore, if the power to stop and question under Schedule 7 infringes the Convention because it is exercisable randomly, the logical conclusion must be either that the valuable power must be abandoned or the power must be exercised in a far more invasive and extensive way, namely by stopping and questioning everyone passing through ports and borders.
+The former alternative would be unfortunate in terms of deterring and hindering terrorism, whereas the latter alternative would seem to put proportionality and legality in irreconcilable tension.
+Further, the Schedule 7 powers are subject to the specific controls set out by Lord Hughes in paras 16, 17 and 43 of his judgment.
+There are, of course, cases in which legality requires practical systems that are otherwise in the public interest to be abandoned.
+However, given the various factors summarised in paras 88 89 above, as more fully considered by Lord Hughes in his judgment, we have reached the conclusion the powers granted by paragraph 2 of Schedule 7 to the 2000 Act do not offend against the requirement of legality, and accordingly we conclude that this appeal should be dismissed.
+LORD KERR: (dissenting)
+Legality
+The opportunity to exercise a coercive power in an arbitrary or discriminatory fashion is antithetical to its legality.
+The primary question in this case is whether the powers under Schedule 7 to the Terrorism Act 2000 can be used in this way or whether there are in place sufficient safeguards to prevent them from being exercised in such a manner.
+It is not enough that they have not in fact been used arbitrarily or in a discriminatory way.
+If they can be used in such a way, they will not be legal.
+Moreover, powers which can be used in an arbitrary or discriminatory way are not transformed to a condition of legality simply because they are of proven utility.
+The most important authority in this area is the Strasbourg decision in Gillan v United Kingdom (2010) 50 EHRR 1105 and probably the most important passage from the judgment (in relation to the issues in the present case) is that contained in para 83, quoted by Lord Hughes in para 36 above.
+There are important earlier passages, however.
+In paras 76 and 77, the court said this: 76. the words, in accordance with the law require the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of article 8.
+The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual if need be with appropriate advice to regulate his conduct. 77.
+For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention.
+In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power.
+Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise.
+The level of precision required of domestic legislation which cannot in any case provide for every eventuality depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (emphasis supplied)
+As ECtHR acknowledged, eleven constraints on the exercise of the powers at issue in the Gillan case had been identified by Lord Bingham when the case had been before the House of Lords (R (on the application of Gillan) v Comr of Police of the Metropolis [2006] UKHL 12; [2006] 2 AC 307).
+These were set out in para 14 of Lord Binghams speech: .
+First, an authorisation under section 44(1) or (2) may be given only if the person giving it considers (and, it goes without saying, reasonably considers) it expedient for the prevention of acts of terrorism.
+The authorisation must be directed to that overriding objective.
+Secondly, the authorisation may be given only by a very senior police officer.
+Thirdly, the authorisation cannot extend beyond the boundary of a police force area, and need not extend so far.
+Fourthly, the authorisation is limited to a period of 28 days, and need not be for so long.
+Fifthly, the authorisation must be reported to the Secretary of State forthwith.
+Sixthly, the authorisation lapses after 48 hours if not confirmed by the Secretary of State.
+Seventhly, the Secretary of State may abbreviate the term of an authorisation, or cancel it with effect from a specified time.
+Eighthly, a renewed authorisation is subject to the same confirmation procedure.
+Ninthly, the powers conferred on a constable by an authorisation under sections 44(1) or (2) may only be exercised to search for articles of a kind which could be used in connection with terrorism.
+Tenthly, Parliament made provision in section 126 for reports on the working of the Act to be made to it at least once a year, which have in the event been made with commendable thoroughness, fairness and expertise by Lord Carlile of Berriew QC.
+Lastly, it is clear that any misuse of the power to authorise or confirm or search will expose the authorising officer, the Secretary of State or the constable, as the case may be, to corrective legal action.
+Notwithstanding the existence of these constraints, ECtHR considered that the safeguards provided for in domestic law did not constitute a real curb on the wide powers afforded to the executive so as to offer the individual adequate protection against arbitrary interference para 79.
+The reasons for this conclusion were given in para 83 of the courts judgment (op cit) and in the following passages from paras 80 82: 80.
+The court notes at the outset that the senior police officer referred to in section 44(4) of the Act is empowered to authorise any constable in uniform to stop and search a pedestrian in any area specified by him within his jurisdiction if he, considers it expedient for the prevention of acts of terrorism.
+However, expedient means no more than advantageous or helpful.
+There is no requirement at the authorisation stage that the stop and search power be considered necessary and therefore no requirement of any assessment of the proportionality of the measure.
+The authorisation is subject to confirmation by the Secretary of State within 48 hours.
+The Secretary of State may not alter the geographical coverage of an authorisation and although he or she can refuse confirmation or substitute an earlier time of expiry, it appears that in practice this has never been done.
+Although the exercise of the powers of authorisation and confirmation is subject to judicial review, the width of the statutory powers is such that applicants face formidable obstacles in showing that any authorisation and confirmation are ultra vires or an abuse of power. 81.
+The authorisation must be limited in time to 28 days, but it is renewable.
+It cannot extend beyond the boundary of the police force area and may be limited geographically within that boundary.
+However, many police force areas in the United Kingdom cover extensive regions with concentrated populations.
+The Metropolitan Police Force Area, where the applicants were stopped and searched, extends to all of Greater London.
+The failure of the temporal and geographical restrictions provided by Parliament to act as any real check on the issuing of authorisations by the executive are demonstrated by the fact that an authorisation for the Metropolitan Police District has been continuously renewed in a rolling programme since the powers were first granted. 82.
+An additional safeguard is provided by the independent reviewer.
+However, his powers are confined to reporting on the general operation of the statutory provisions and he has no right to cancel or alter authorisations, despite the fact that in every report from May 2006 onwards he has expressed the clear view that, section 44 could be used less and I expect it to be used less.
+Drawing on the description of the section 44 powers in this passage, it is possible to contrast them with the powers contained in Schedule 7 in a variety of different ways.
+These illustrate the greater ambit of the Schedule 7 powers.
+No authorisation, whether from a senior police officer or otherwise, is required for the examining officer to have resort to the Schedule 7 powers.
+The exercise of those powers is not dependent on the examining officer (or anyone else) considering that it is expedient to do so for the prevention of acts of terrorism.
+Since no authorisation is required, there is no question of it being subject to review by the Secretary of State.
+There is no geographical or temporal limitation on the exercise of the powers (other than, of course, that they are to be used at a port of entry into or exit from the United Kingdom).
+There is no provision for automatic lapse of the powers nor is there any question of their renewed authorisation being subject to confirmation.
+Certain features are common to both sets of powers.
+The width of the powers is similar in both instances and challenges to their use on conventional judicial review grounds both face the same difficulty as was identified by ECtHR in Gillan.
+Both are subject to review by the independent reviewer but, as in Gillan, so in this case, this is a post hoc review.
+The independent reviewer cannot restrict the exercise of the powers.
+He may merely make recommendations as to their future use and, as we have seen in this case, his recommendations are not always followed.
+Resort to the powers may be based on no more than a hunch or the professional intuition of the officer concerned.
+Indeed, the absence of any requirement of either reasonable or even subjective suspicion in both instances clearly contemplates that this is the basis on which the powers will in fact be exercised.
+The sole proviso as in Gillan is that the Schedule 7 powers should be exercised for the purpose of determining whether the person who is subject to them appears to be or have been concerned in the commission, preparation or instigation of acts of terrorism.
+The same considerations affect the viability of a judicial review challenge and this in turn brings sharply into question the claim that judicial superintendence of the exercise of the powers is an effective safeguard against their being resorted to in an arbitrary, discriminatory or disproportionate fashion.
+If an examining officer does not have to form a suspicion, how is his exercise of the powers to be reviewed? At present, the only averment required of an officer whose use of the powers is challenged is that they were exercised for the statutory purpose.
+On the current state of the law that unvarnished statement will be sufficient to insulate the exercise of the powers from further investigation or challenge.
+It is said that a distinguishing feature of the Schedule 7 powers is that, whereas the section 44 power was exercisable in relation to any person in the designated geographical area, the Schedule 7 powers may only be used in relation to those passing through ports of entry or exit.
+It is suggested that, while people in this country expect to be allowed to pass through the streets freely, they have traditionally accepted that they will be subject to border controls such as the requirement to identify themselves.
+Two points should be made about this.
+Firstly, being subject to border controls such as the requirement to provide proof of identity and entitlement to enter is an entirely different matter from being required to answer questions about ones movements and activities.
+As this case shows, these questions can be quite detailed and, more importantly, if they are not answered, the person of whom they are asked faces criminal sanction.
+Secondly, and more importantly, whether people in this country are accustomed to intrusion when they move through ports of entry or exit does not bear on the question of whether the circumstances in which the Schedule 7 powers may be exercised are too widely drawn to satisfy the test of in accordance with law.
+Put shortly, an unfettered power which may be arbitrarily or capriciously used does not become legal just because people generally do not take exception to its use.
+The significance of the restriction on the use of Schedule 7 powers to ports of entry should not be misunderstood.
+As the respondent has acknowledged, there are 245m passenger movements through United Kingdom ports every year.
+All are potentially subject to this power.
+The fact that it is exercised sparingly has no direct bearing on its legality.
+A power on which there are insufficient legal constraints does not become legal simply because those who may have resort to it, exercise self restraint.
+It is the potential reach of the power rather than its actual use by which its legality must be judged.
+Moreover, although the percentage of travellers who are subjected to the use of the power is small, in absolute terms the number is not inconsequential.
+On average 5 to 7 people each day are examined for more than an hour.
+That there is the potential for arbitrary or discriminatory exercise of the power is apparent from, among other things, the provisions of the Code of Practice.
+It stipulates that selection should not be based solely upon the ethnic background or religion of the individual.
+This provision is objectionable for two reasons.
+In the first place there is no clearly obvious means of policing the requirement that persons should not be stopped and questioned just because of their ethnic background or religion.
+As ECtHR held in Gillan at para 86 in the absence of any obligation on the part of the officer [exercising powers of stop and search under TA section 44] to show a reasonable suspicion, it is likely to be difficult if not impossible to prove that the power was improperly exercised.
+Keeping records of the self declared ethnicity of those subject to the Schedule 7 powers does not, of itself, provide a guarantee that the powers are not being exercised in a discriminatory way.
+Secondly, the provision in the Code of Practice contemplates that ethnic origin or religious adherence can be at least one of the reasons for exercising the power.
+In so far as the perceived religious belief or ethnic origin of an individual (as opposed to his or her capacity to provide information about their possible involvement in terrorism) is the basis on which he or she is made subject to Schedule 7 powers, this constitutes direct discrimination.
+As Lord Nicholls of Birkenhead held in Nagarajan v London Regional Transport [2000] 1 AC 501, 512H: Decisions are frequently reached for more than one reason.
+Discrimination may be on racial grounds even though it is not the sole ground for the decision.
+Provided that race exerted a more than trivial influence on the decision to treat a person less favourably, the decision will constitute race discrimination (Igen Ltd (formerly Leeds Careers Guidance) v Wong [2005] ICR 931, paras 36 37).
+As Mr Squires, for the intervener, the Equality and Human Rights Commission, submitted, if examining officers exercise Schedule 7 powers not because they have any particular suspicion or intelligence about an individual but on the basis of an intuition that a person looks like a terrorist, it is predictable that those of Asian or Muslim appearance will be disproportionately targeted.
+The startling reality that this legislation authorises the use of a coercive power, at least partly, on the grounds of race and religion should be starkly confronted.
+That not only permits direct discrimination, it is entirely at odds with the notion of an enlightened, pluralistic society all of whose members are treated equally.
+The legality of a measure which interferes with a Convention right must also be vouched against its demonstrable proportionality.
+Limits to police powers must be prescribed in order to enable the necessary examination of whether the specific exercise of those powers is proportionate to take place and in order to demonstrate that a proper balance between individual rights and wider public interests has been struck.
+The majority in R (T) v Chief Constable of Greater Manchester Police (Liberty intervening) [2015] AC 49, held that ensuring that a particular provision was proportionate was an aspect of the prescribed by law requirement.
+This is, of course, distinct from the question whether an interference in a particular case was necessary (see per Lord Reed paras 114 115).
+In order to be prescribed by law, the legal regime governing the exercise of police powers must include limitations capable of securing the proportionate exercise of those powers and of ensuring that the proportionality of any interference can be adequately examined (ibid para 114).
+Where the stop, question and search powers can be exercised without any suspicion whatever, there is simply no material on which a judgment as to whether they are being used proportionately can be made.
+The examining officer does not have to explain why he or she chose a particular individual for the exercise of the Schedule 7 powers.
+Indeed, he or she does not have to have a reason (in the sense of a rationalised conclusion) for the exercise of the power, since it is unnecessary to have any form of suspicion.
+A purely instinctive impulse based on nothing more than a feeling that something relating to terrorism might be disclosed by the exercise of the powers is enough to permit recourse to them.
+In those circumstances, an examination of whether the powers have been used proportionately is simply unfeasible.
+This crucial dimension of the prescribed by law requirement is missing from the Schedule 7 regime.
+On that account use of the Schedule 7 powers cannot be said to be in accordance with law.
+Utility
+The utility of a provision in this case, its effectiveness as a counter terrorism measure is, at least potentially, relevant to a claimed justification of interference with a qualified Convention right.
+So, for instance, if it could be shown that the exercise of Schedule 7 powers provided a tangible result in terms of reducing the risk of terrorist attack, this would sound on the question of pursuit of a legitimate aim for the interference and whether a proper balance had been struck between the rights of the individual and the interests of the community.
+But it is misconceived to assume that, because the possible utility of Schedule 7 powers is relevant to justification of an interference with a Convention right, it meets the requirement that the measure be in accordance with law.
+The distinction between the manner in which a power is exercised and the result that its exercise may achieve should be clearly recognised.
+It does not follow that, because a measure is an effective counter terrorist tool, the way in which that tool is deployed is automatically proportionate and in accordance with law.
+In Colon v The Netherlands (2012) 55 EHRR SE45 a power of search in aid of public order, on foot of a designation by the Burgomaster, in the old centre of Amsterdam was held to meet the requirement of legality, although not grounded on any basis of suspicion.
+It is to be noted, however, that the applicants complaint that the interference with his right to respect for his private life was not in accordance with the law was confined to what he claimed was the ineffectiveness of the judicial remedies available.
+In particular, he argued that an essential guarantee in the form of prior judicial control was missing.
+The European Court dealt with that claim in paras 75 78 as follows: 75.
+The court has accepted in past cases that prior judicial control, although desirable in principle where there is to be interference with a right guaranteed by article 8, may not always be feasible in practice; in such cases, it may be dispensed with provided that sufficient other safeguards are in place (see, mutatis mutandis, Klass v Germany (1979 80) 2 EHRR 214, para 56; and Rotaru v Romania, (2000) 8 BHRC 449 para 59).
+In certain cases, an aggregate of non judicial remedies may replace judicial control (see, mutatis mutandis, Leander v Sweden (1987) 9 EHRR 433, paras 64 65). 76.
+In the Netherlands, all pertinent legal texts are in the public domain (compare and contrast para 30 of Gillan).
+Before the public prosecutor can order police to carry out a search operation, a prior order designating the area concerned must be given by an administrative authority of the municipality, the Burgomaster.
+That order must in turn be based on a byelaw adopted by an elected representative body, the local council, which has powers to investigate the use made by the Burgomaster of his or her authority (see paras 34 36 above). 77.
+Review of a designation order, once it has been given, is available in the form of an objection to the Burgomaster, followed if necessary by an appeal to the Regional Court and a further appeal to the Administrative Jurisdiction Division of the Council of State (see para 40 above). 78.
+The criminal courts have a responsibility of their own to examine the lawfulness of the order and the scope of the authority of the official who gave it.
+It is a defence for anyone charged with failing to comply with a search order issued by or on behalf of the public prosecutor to state that the order was not lawfully given; the criminal court must answer it in its judgment (see para 41 above).
+The emphasis of the legality debate was on the reviewability of the authorising agents (the Burgomasters) decision, rather than on any opportunity to examine the proportionality of the individual decision of officers as to who should be stopped and searched.
+The use which the Burgomaster made of his or her powers remained subject to review and control by the local council, an elected representative body.
+It is important to understand, therefore, that the courts reference to the effectiveness of the measure (in paras 94 and 95 of its judgment) was made in the context of the justification of the interference with the article 8 right, rather than as an assessment of the accordance with law requirement.
+The fact that a measure may be effective in pursuit of the aim of counteracting terrorism does not mean that its use in accordance with law is to be assumed.
+If the measure is not effective to achieve its avowed aim, this is, of course, a reason to find it disproportionate.
+But the converse does not hold true.
+The proportionality of a measure is not to be determined by its efficacy in fulfilling its objective.
+The privilege against self incrimination and article 6
+The venerable history of the privilege against self incrimination and its place at the centre of our system of criminal justice have been described by Lord Hughes in para 60 of his judgment.
+The importance attached to this right is such that it is not to be lightly set aside.
+As Lord Griffiths said in AT & T Istel Ltd v Tully [1993] AC 45, 57 the privilege is deeply embedded in English law and can only be removed or moderated by Parliament and in Gray v News Group Newspapers Ltd [2013] 1 AC 1, para 18 Lord Neuberger of Abbotsbury MR said that it was for the legislature and not the judiciary to remove or cut down the privilege against self incrimination.
+Two particular features of the right should be noted.
+It is engaged when compliance with a legal obligation to answer questions would create a real and appreciable risk of criminal proceedings being brought In re Westinghouse Electric Corpn Uranium Contract Litigation MDL Docket No 235 (Nos 1 and 2) [1978] AC 547, 574 per Lord Denning MR.
+Secondly, the relevant risk is of prosecution, not conviction: Sociedade Nacional de Combustiveis de Angola UEE v Lundqvist [1991] 2 QB 310; JSC BTA Bank v Ablyazov (No 13) [2014] EWHC 2788.
+So, if answering the questions put to her by examining officers would expose Mrs Beghal (or, for that matter, her husband) to an appreciable risk of prosecution, the privilege against self incrimination is in play.
+It is not necessary to show that criminal proceedings are likely.
+The privilege arises unless the risk is so far beyond the bounds of reason as to be no more than a fanciful possibility: Westinghouse [1978] AC 547, 579 per Roskill LJ.
+It is suggested that the powers under Schedule 7 would be ineffective if the privilege against self incrimination was held to apply to them.
+The premise on which this is based appears to be that those stopped and questioned under Schedule 7 would be unlikely to answer without there being in place the prospect of prosecution if they refused to respond.
+It must therefore be assumed that Parliament intended that the privilege should be abrogated in relation to the use of these powers.
+For my part, I would be reluctant to make the assumption that those who were questioned under Schedule 7 would indeed refuse to answer unless faced with the possibility that they would be prosecuted in consequence.
+But I have a more fundamental reason for disagreeing with the conclusion that the privilege against self incrimination does not arise in relation to the exercise of Schedule 7 powers.
+I am therefore prepared to proceed on the hypothetical basis that Parliament did indeed intend that the privilege should be abrogated.
+It is suggested that Schedule 7 powers are not aimed at obtaining information for the purpose of prosecuting the person questioned or her spouse.
+I do not understand why this should be so.
+The purpose of questioning under the schedule is to determine whether the person questioned appears to be a terrorist within the wide definition contained in section 40(1)(b) of the 2000 Act.
+If answers to the questions posed suggest that the person questioned is indeed someone who has committed an offence under one of the sections specified in section 40 or who is or has been concerned in the commission, preparation or instigation of acts of terrorism, why should those answers not form the basis of a prosecution? It seems to me inescapable that there is a real and appreciable risk of prosecution if the answers to the questions posed prove to be self incriminating.
+The fact that, in this case, it was not suspected that the appellant was a terrorist is nothing to the point.
+If, as she should have been, she was asked questions designed to establish whether she appeared to be a terrorist, the potential of her answers to incriminate her if they were of an inculpatory character, is indisputable.
+In the Divisional Court [2014] QB 607 there was some discussion as to whether the Director of Public Prosecutions might be prepared to give an undertaking that answers to questions asked in the exercise of Schedule 7 powers would never form part of a subsequent prosecution case.
+Unsurprisingly, to me at least, the Director declined to give that undertaking.
+It would be a startling policy decision to give an assurance that evidence of terrorism elicited by Schedule 7 questioning would not be used to prosecute someone implicated by such evidence.
+The independent reviewer and, incidentally, the Divisional Court and Lord Hughes in his judgment in this case, have recommended that Parliament should enact a provision making answers or information obtained inadmissible in proceedings, except where there has been a breach of paragraph 18 of the Schedule (wilful failure to comply with a duty under Schedule 7) or for an offence of deliberately giving false information when questioned.
+The plain fact is, however, that self incriminating answers given in response to questions posed under Schedule 7 can form the basis of a prosecution.
+It is suggested, however, that such a prosecution would not be viable by reason of section 78 of the Police and Criminal Evidence Act 1984.
+True it is that the exercise of the power to exclude evidence under this provision must be exercised in accordance with article 6 of ECHR and that this has the effect that any use in a criminal prosecution of answers obtained under compulsion of law will generally be a breach of the right to a fair trial.
+But two caveats to that must be entered.
+In the first place, answers to questions posed under Schedule 7 can prompt inquiry which might lead to the obtaining of evidence independent of the material which the responses have supplied.
+Secondly, it is by no means clear that evidence of those answers will automatically be excluded if there is other evidence which directly implicates the person responding.
+So, for instance, if there is significant other evidence which, alone, might be sufficient to establish the guilt of the accused, is it inevitable that evidence of responses given during a Schedule 7 investigation which corroborates or reinforces that evidence, would be excluded? I do not believe that it is.
+Of greater importance, however, is the consideration that the protection afforded by the privilege against self incrimination is against the risk of prosecution rather than conviction.
+In this context the significance of the DPPs understandable refusal to confirm that there will never be any circumstances in which responses to a Schedule 7 questioning will not be used in a prosecution comes fully into play.
+There is, currently, no guarantee that someone who gives a self incriminating answer in the course of a Schedule 7 inquiry will not be confronted by those answers in a subsequent criminal trial.
+He may succeed in having evidence of those answers excluded but he cannot ensure that he will not be prosecuted on foot of them.
+I consider therefore that the requirement in Schedule 7 that a person questioned under its provisions must answer on pain of prosecution for failing to do so is in breach of that persons common law privilege against self incrimination.
+On that account it is incompatible with article 6 of ECHR.
+Articles 5 and 8
+It is accepted that the exercise of Schedule 7 powers constitutes an interference with article 5 and article 8 rights.
+This throws the focus of the discussion about those rights on the question of justification.
+To establish justification, it is necessary to satisfy a trilogy of tests: the interference must pursue a legitimate aim; it must be in accordance with law; and it must be necessary in a democratic society.
+An aspect of the last of these is proportionality.
+As Lord Wilson in R (Aguilar Quila) v The Secretary of State for the Home Department (AIRE Centre intervening) [2012] 1 AC 621, para 45 and Lord Sumption and Lord Reed in Bank Mellat v HM Treasury (No 2) [2014] AC 700, 770 771, 789, paras 20 and 70ff explained, this normally requires that four questions be addressed: (a) (b) is the legislative objective sufficiently important to justify limiting a fundamental right?; are the measures which have been designed to meet it rationally connected to it?; are they no more than are necessary to accomplish it?; and (c) (d) do they strike a fair balance between the rights of the individual and the interests of the community?
+The objective of the Schedule 7 powers (counteracting terrorism) can be readily acknowledged as a legitimate aim.
+And obtaining information about whether a person appears to be a terrorist is rationally connected to that aim.
+As is usually the case, the real debate centres on the third and fourth issues: is the breadth of the powers no more than is necessary to achieve the aim; and has a fair balance been struck between the rights of the individual and the interests of the community.
+The fact that a power has been successful in promoting the aim of the interference with a Convention right does not supply the complete answer to the question whether it is no more than is necessary to achieve the aim.
+Nor does the endorsement of the usefulness of the power by the independent reviewer.
+Valuable though the independent reviewers opinions are, the question whether this undoubted interference with an individuals Convention rights is no more than is necessary is one for the courts.
+And the courts should be mindful that the proven success of the use of the power does not establish that no lesser form of interference would be just as efficacious.
+Nor does it, indeed, address the question whether, even if somewhat less effective, a more unobtrusive interference would be sufficient to fulfil the aim of the measure.
+While the state enjoys an area of discretionary judgment as to what measures are needed to pursue a particular aim, this does not relieve it of the obligation to produce some evidence that the specific means chosen to bring that about are no more than is required.
+There is no evidence that a suspicion less power to stop, detain, search and question is the only way to achieve the goal of combatting terrorism.
+The fact that the measure has been successful does not establish that proposition.
+Indeed, to take the example of detention, it is clear that the measure goes beyond what is necessary.
+As Lord Hughes has pointed out in paras 54 and 55, detention beyond what is necessary to complete the process should be justified by objectively demonstrated suspicion.
+The fact that the appellant was not detained for more than was necessary does not establish that the breadth of the power available to examining officers is proportionate.
+Plainly, it is not.
+Likewise, the failure or refusal of Parliament to enact a provision making answers or information obtained by use of Schedule 7 powers inadmissible in proceedings disposes of any possible argument that this measure goes no further than is required to meet its aim.
+The opinion of the independent reviewer and the Divisional Court that this enactment should be made has not been challenged.
+While the provision remains in force, that aspect of the Schedule 7 powers is not only not in accordance with law (for the reasons earlier given) but also, ipso facto, more than is necessary to fulfil the objective of the interference.
+Of course it is true that the threat of terrorism is substantial and should not be downplayed.
+But that undoubted truth should not mask or distort the obligation to dispassionately examine the aptness of measures taken to deal with it.
+If they are to be seen as no more than necessary, the powers under Schedule 7 must be capable of withstanding scrutiny of their rationale.
+In my view, no reasoned justification has been proffered for investing examining officers with a power to stop, search, question and detain anyone passing through a port and for making those who refuse to answer questions amenable to the criminal law.
+On the issue of whether a proper balance has been struck between the rights of the individual and the interests of the community, the degree of interference with rights is self evidently relevant.
+And it is unquestionably true that in many cases, the interference with the Convention rights may be relatively unobtrusive.
+It is also undoubtedly relevant that members of the public expect to be questioned at ports of entry to and exit from the United Kingdom and that many raise no objection to the use of Schedule 7 powers.
+Again, the scourge of terrorism and the need to take effective measures against it loom large in this context.
+But the potential reach of the Schedule 7 powers must also be clearly recognised.
+A person stopped under this provision is required to answer questions even though they may not have had the benefit of legal advice.
+Individuals may have many reasons why they do not want to answer questions as to their movements and activities.
+These reasons are not necessarily or invariably discreditable.
+Some may be apprehensive about answering questions without a lawyer being present or may lack a full understanding of the significance of refusing to answer.
+The fact that they are open to criminal sanction, which could include imprisonment, for failing to answer questions, renders the exercise of these powers a significant interference with article 8 rights, in my opinion.
+Again, the absence of any articulated reason for the need for a suspicion less power to stop, detain, etc makes its justification on the basis that it strikes the right balance problematic.
+The safeguards outlined by Lord Hughes in para 43 of his judgment do not bear on this anterior question, and, in fairness, he does not suggest that they do.
+Whatever may be said about the efficacy of those safeguards (and there is, at least, ample scope for debate about, for instance, the effectiveness of judicial review) they do not supply the necessary justification for allowing examining officers to exercise the powers under Schedule 7 without any suspicion whatever.
+For that fundamental reason, I cannot accept that the particular form of interference which Schedule 7 represents has been shown to be justified.
+Conclusion
+I would allow the appeal and declare that Schedule 7 of the Terrorism Act 2000 is incompatible with articles 5, 6 and 8 of ECHR.
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+On 29 November 2010 the Immigration Rules were amended so as to require a foreign spouse or partner of a British citizen or a person settled in this country to pass a test of competence in the English language before coming to live here (the Rule).
+Clearly, for a variety of reasons, some people would find this much harder to do than others.
+These included many people from India, Pakistan, and Bangladesh, three of the four countries from which the greatest numbers of foreign spouses and partners are drawn (the fourth is the USA).
+Hence the proposed Rule caused particular concern among those communities in this country where marriage to partners from those countries is most common.
+They saw it as a discriminatory measure which aimed to limit spousal migration from those and similar countries.
+These proceedings were launched in November 2010, before the Rule came into force, in order to challenge the validity of the rule itself.
+The appellants argue that the Rule is an unjustifiable interference with the right to respect for private and family life, protected by article 8 of the European Convention on Human Rights (ECHR); or that it is unjustifiably discriminatory in securing the enjoyment of that right, contrary to article 14 of the ECHR; or that it is irrational and therefore unlawful on common law principles.
+They have set themselves a difficult task.
+It may well be possible to show that the application of the Rule in an individual case is incompatible with the Convention rights of a British partner, as happened in the case of a different marriage rule in R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre intervening) [2011] UKSC 45, [2012] 1 AC 621.
+It is much harder to show that the Rule itself is inevitably unlawful, whether under the Human Rights Act 1998 or at common law, although this was possible in the case of yet another marriage rule, in R (Baiai) v Secretary of State for the Home Department (Joint Council for the Welfare of Immigrants intervening) (Nos 1 and 2) [2008] UKHL 53, [2009] AC 287.
+It is not surprising, therefore, that Beatson J concluded that the fact that it might be possible to argue that the operation of the Rule was a disproportionate infringement of an individuals article 8 rights did not render the Rule itself disproportionate: [2011] EWHC 3370 (Admin), [2012] 2 All ER 653 (sub nom R (Chapti) v Secretary of State for the Home Department (Liberty intervening)), para 115.
+By a majority, the Court of Appeal reached the same conclusion: [2013] EWCA Civ 322, [2014] 1 WLR 208.
+A further difficulty is that things have not stood still since the proceedings were launched in November 2010, since Beatson J reached his decision in December 2011, and since the Court of Appeal reached their decision in April 2013.
+The Rule itself has stayed much the same, but it has been restated in a new Appendix FM to the Immigration Rules which seeks to deal compendiously with family relationships.
+More importantly, the guidance to those operating it on the ground has developed as time has gone on.
+And perhaps most important of all, the facts relating to the accessibility of the required tests were difficult to ascertain and are also subject to change.
+The discussion of the evidence and arguments, on the one hand by Dr Helena Wray and her colleagues for the appellants, and on the other hand by Mrs Helen Sayeed for the Secretary of State, has to be applied to the situation as it now is rather than as it was in 2011.
+The development of the Rule
+The Rule may be set against a background of immigration controls which have traditionally differentiated between so called primary migration, of breadwinners coming here for economic reasons, and secondary migration, of spouses, partners and other family members coming to join the breadwinners here.
+All are expected not to place an undue burden upon the state and its resources.
+Controls relating to the former look to the work or business from which the migrant intends to support himself; controls relating to the latter look to whether the family has the resources to support itself.
+A second background feature is that control over the entry of nationals from the European Economic Area and their families is governed by European Union law.
+The Rule is not concerned with them, even though English will not be the first language for the great majority.
+Spouses, partners and intending partners are first given limited leave to enter for a probationary period.
+Until 2012, this was two years, but it has now been raised to at least the five years which is required of other migrants.
+At the end of this period, they can apply for indefinite leave to remain (ILR).
+In 2005, applicants for British citizenship were for the first time required to demonstrate sufficient knowledge of the English language and about life in the United Kingdom (KOLL).
+In 2007, this post entry requirement was extended to applicants for ILR, including spouses and partners.
+This can be satisfied by taking the Life in the UK test (LUK), which requires a considerable level of competence in the English language.
+An alternative for non native English speakers was to take a course in English for Speakers of Other Languages (ESOL), taught with specified citizenship materials.
+Since October 2013, however, all applicants for ILR have been required to meet the same specific English language requirement and pass the LUK test.
+Such data as we have suggest that the number of spouses and partners failing the settlement test was never high and declined sharply after the first year of its introduction (Equality Impact Assessment, 2010).
+This is based on the numbers who had to apply for further limited leave to remain because they had failed the test, which are very small when compared with the numbers granted ILR after entering through the family route.
+The data indicated that a higher proportion of spouses or partners took the ESOL rather than the LUK route to satisfying the requirement.
+The Secretary of State suggests that this could mean that even after two years in the UK they had not acquired sufficient English to enable them to pass the LUK test.
+However, migrants coming from non English speaking countries are advised to take an ESOL course before attempting a settlement test.
+So this figure could simply reflect the fact that a higher proportion of spouses and partners come from non English speaking countries.
+Having taken an ESOL course with the required citizenship materials, there would be no point in their taking the LUK test instead.
+In 2007, the Government first floated the idea of requiring a pre entry test for foreign spouses and partners, in Securing the UK Border: Our vision and strategy for the future (March 2007).
+In the chapter on Wider, tougher checks abroad, under the heading Targeting areas of abuse, this made suggestions about Marriage to partners from overseas protection for the vulnerable and the skills to integrate (para 3.22).
+Alongside suggestions aimed at deterring or preventing forced marriages was a proposal to examine the case for introducing a new requirement to pass some form of English test before arrival.
+This was soon followed by a consultation paper, Marriage Visas: Pre Entry English Requirement for Spouses (December, 2007), published alongside a separate consultation paper, Marriage to Partners from Overseas, which dealt with proposals to combat forced marriages (the subject of this courts decision in Aguilar Quila).
+The key objectives of introducing a pre entry English requirement for spouses were said to be (para 1.11): To assist the spouses integration into British society at an early stage; To improve employment chances for those who have access to the labour market; To raise awareness of the importance of language and to prepare for the tests they will need to pass for settlement.
+In July 2008, the Government published Marriage Visas: The Way Forward, which dealt with the mainly negative response to both consultation papers.
+Opponents cited the difficulties of accessing English language lessons overseas, the interference with the right to respect for family life and individual human rights, and the view that English was best learned in the United Kingdom (paras 2.14 2.16).
+Nevertheless, the Government had decided upon the medium term goal of introducing an English test for spouses before they arrived here.
+The three stated objectives remained the same (paras 1.4, 2.2); although respondents who favoured the proposal also suggested that it would reduce the cost of translation services in the UK and bring potential benefits to spouses of improved employment opportunities, freeing them from being tied to home and family (para 2.17).
+But the Government decided that it would move towards this goal over a period of time (para 2.3): This is simply because there is not currently sufficient access to English language classes overseas, especially in rural areas, and to introduce the requirement in a dogmatic way immediately would simply keep British citizens apart from their loved ones, breaking up families.
+In the meantime, as part of the visa application process, foreign spouses would be required to enter into an agreement to learn English, showing before arrival how they planned to so do and after arrival how they were doing so.
+A year later, however, it was decided to implement the new policy in the summer of 2011.
+An Equality Impact Assessment, published in July 2009, explained that the cross Whitehall group working on the policy felt that announcing an implementation date would generate a supply of sufficient English tuition to meet demand, but it would take between 18 to 24 months to develop sufficient capacity (p 12).
+An Impact Assessment (of the proposed pre entry language requirements for economic as well as spousal migrants), also published in July 2009, explained that it had been decided that spouses would only have to demonstrate that they could speak (not necessarily read or write) English to level A1 of the Common European Framework of Reference for Languages (the CEFR).
+This was considered to require 40 to 50 hours tuition for most learners.
+Level A1 requires that the user: Can understand and use familiar everyday expressions and very basic phrases aimed at the satisfaction of needs of a concrete type.
+Can introduce him/herself and others and can ask and answer questions about personal details such as where he/she lives, people he/she knows and things he/she has.
+Can interact in a simply way provided the other person talks slowly and clearly and is prepared to help.
+After the coalition Government took office in May 2010, however, the timetable was advanced.
+On 9 June, the Home Secretary announced that the pre entry test requirement would come into effect in the autumn: this will help promote the economic well being of the UK, for example by encouraging integration and protecting public services.
+It will also assist in removing cultural barriers, broaden opportunities for migrants and help to ensure that they are equipped to play a full part in British life.
+On 26 July, the Minister of State for Immigration announced that the requirement would come into effect on 29 November.
+He confirmed that spouses and partners would have to show English language ability in speaking and listening at level A1 of the CEFR, by passing an acceptable test with an approved test provider.
+The Rule applies to non European spouses, civil partners, unmarried opposite and same sex partners, fianc(e)s and proposed civil partners (collectively spouses and partners) wishing to live here with a British citizen or a non European national settled in the UK.
+This was originally done by amendment to paragraphs 281, 284, 290, 293, 295A and 295D of the Immigration Rules: Statement of Changes to Immigration Rules, 1 October 2010 (Cm 7944).
+In 2011 the Rule was extended to spouses and partners of refugees and people granted humanitarian protection in the UK, covered by paras 319L and 319O: 16 March 2011 (HC 863).
+However, applications for leave to enter or remain made on or after 9 July 2012 are now governed by Appendix FM to the Immigration Rules.
+Since 1 December 2013, the English language requirement has also been imposed upon specified partners of members of the Armed Forces, under the Appendix Armed Forces.
+It is therefore convenient to recite the Rule as contained in Appendix FM rather than the earlier version considered in the courts below.
+Appendix FM provides that applicants for entry clearance or limited leave to remain as a partner must satisfy the English language requirement as follows (paras E ECP 4.1 and E LTRP 4.1): The applicant must provide specified evidence that they (a) are a national of a majority English speaking country listed in paragraph GEN 1.6; (b) have passed an English language test in speaking and listening at a minimum of level A1 of the Common European Framework of Reference for Languages with a provider approved by the Secretary of State; (c) have an academic qualification recognised by UK NARIC [the National Recognition Information Centre] to be equivalent to the standard of a Bachelors or Masters degree or PhD in the UK, which was taught in English; or (d) are exempt from the English language requirement under para E ECP 4.2.
+The majority English speaking countries listed in paragraph GEN 1.6 are Antigua and Barbuda; Australia; the Bahamas; Barbados; Belize; Canada; Dominica; Grenada; Guyana; Jamaica; New Zealand; St Kitts and Nevis; St Lucia; St Vincent and the Grenadines; Trinidad and Tobago; and the United States of America.
+The exemptions in paras E ECP 4.2 and E LTRP 4.2 apply if at the date of application (a) the applicant is aged 65 or over; (b) the applicant has a disability (physical or mental condition) which prevents the applicant from meeting the requirement; or (c) there are exceptional circumstances which prevent the applicant from being able to meet the requirement prior [to entry to the UK].
+The words in square brackets in (c) do not apply, for obvious reasons, to partners who are applying for limited leave to remain here as a partner.
+These requirements are in essence the same as those imposed by the amendment to para 281 (for spouses) and the other relevant paragraphs of the Rules, save that these made an exception where there are exceptional compassionate circumstances that would prevent the applicant from meeting the requirement (para 281(1)(a)(ii)(c)).
+Compassionate has now been dropped.
+The courts below did not consider the guidance given to entry clearance staff as to how the Rule should be operated.
+The internal guidance on the English language requirement (SET 17 updated 15 February 2011) stated as follows (para SET 17.9): Discretion should be exercised only in cases where there are the most exceptional, compelling and compassionate circumstances specifically relating to the ability of the applicant to meet the language requirement, circumstances should be assessed on a case by case basis.
+The expectation is that use of the exceptional compassionate circumstances exemption will be rare.
+Financial reasons will not be acceptable. (emphasis supplied) However, at that stage, if the applicant partner was a long term resident of a country with no test centre, he or she was automatically exempted under this criterion.
+This exemption was withdrawn as from 24 July 2014.
+The current guidance on the consideration of exceptional circumstances, in the Immigration Directorate Instruction, English Language Requirement Family Members under Part 8, Appendix FM and Appendix Armed Forces, April 2015, para 7.1, contains the following passages: Each application for an exemption on the basis of exceptional circumstances will be considered on its merits on a case by case basis.
+Evidence of the nature and impact of the exceptional circumstances must be clearly provided, eg of previous efforts to access learning materials or to travel overseas to take an approved test and the obstacles to doing so.
+This must include evidence provided by an independent source (eg an appropriately qualified medical practitioner) or capable of being verified by the decision maker.
+Examples of situations in which, subject to the necessary supporting evidence, the decision maker might conclude that there were exceptional circumstances, might include where the applicant Is a long term resident of a country in international or internal armed conflict, or where there is or has been a humanitarian disaster, including in light of the infrastructure affected.
+Has been hospitalised for several months immediately prior to the date of application.
+Is the full time carer of a disabled child also applying to come to the UK.
+Is a long term resident of a country with no approved A1 test provision and it is not practicable or reasonable for the applicant to travel to another country to take a test Lack of or limited literacy or education will not be accepted as exceptional circumstances. (emphasis supplied)
+Further guidance is given on countries with no approved A1 test provision in para 7.2: From 24 July 2014, applicants who are resident in a country with no approved A1 English language test are expected to travel to another country to take such a test.
+Only where they can demonstrate in their visa application that it is not practicable or reasonable for them to do so will they be exempt from the requirement prior to entry to the UK.
+Reasons why it is not practicable or reasonable for an applicant to take an approved A1 test in another country will normally require more than inconvenience or reluctance to travel overseas.
+Subject to supporting evidence, such reasons might exist where for example: Exit visa requirements or restrictions make it very difficult for the applicant to travel overseas.
+The applicant faces insuperable problems in meeting immigration requirements to visit a country with an approved test centre.
+The applicant faces unreasonable additional travel or accommodation costs to visit a country with an approved test centre.
+Some applicants as a partner . already incur travel and accommodation costs to attend an approved test centre in their own country or to give their biometrics at a Visa Application Centre.
+In addition, all applicants for a settlement visa as a partner are required to meet a financial requirement and it is reasonable to expect that they (or their sponsor ) will generally be able to afford incurred in making reasonable costs application.
+Other exceptional circumstances prevent the applicant taking an approved A1 test in another country.
+For completeness, it is necessary also to note the circumstances in which entry clearance may be given even though the application does not meet the requirements of the Immigration Rules.
+The Immigration Directorate Instruction Family Migration, Appendix FM section 1.0a, Family Life (as a Partner or Parent): 5 year Routes (August 2015) deals with Exceptional Circumstances or Compassionate Factors in section 14.
+Entry clearance officers must in every case go on to consider whether there may be either exceptional circumstances which would make the refusal of entry clearance a breach of article 8 because [it] would result in unjustifiably harsh consequences for the applicant or their family or compassionate factors that is compelling compassionate reasons which might mean that refusal would result in unjustifiably harsh consequences even if it did not constitute a breach of article 8.
+Entry clearance officers cannot themselves grant entry clearance outside the Rules, but if they consider the case might meet the very high threshold they must refer it to the Referred Casework Unit in London.
+The threshold is very high because the Home Office considers that the appropriate balance between individual rights and the public interest has been clearly spelled out in the Rules (now underpinned by section 19 of the Immigration Act 2014).
+Under the heading How to consider exceptional circumstances, the Instructions state: Exceptional does not mean unusual or unique.
+Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional.
+For example, a case is not exceptional just because the criteria set out in the Immigration Rules have been missed by a small margin.
+Instead exceptional means circumstances in which refusal would result in unjustifiably harsh consequences for the individual or their family such that refusal would not be proportionate under article 8.
+The fact that refusal may, for example, result in the continued separation of family members does not of itself constitute exceptional circumstances where the family have chosen to separate themselves.
+Cases that raise exceptional circumstances to warrant a grant of entry clearance outside the Rules are likely to be rare.
+In determining whether there are exceptional circumstances, the decision maker must consider all relevant factors raised by the applicant and weigh them against the public interest under article 8.
+Examples of relevant factors include: The best interests of any child in the UK affected by the decision.
+The nature of the family relationships involved, such as the length of the applicants marriage and how frequently they have contact with their children if they do not live with them .
+The likely impact on the applicant, their partner and/or child if the application is refused.
+Whether there are any factors which might increase the public interest in refusal, for example, the fact that they do not speak English (emphasis supplied) Cumulative factors should be considered.
+Cumulative factors weighing in favour of the applicant should be balanced against cumulative factors weighing in the public interest in deciding whether refusal would be unjustifiably harsh for the applicant or their family.
+The tests
+The research conducted on behalf of the appellants in 2011 showed that it was then by no means easy to find out which tests were offered and in which places.
+One problem was that tests at the very basic A1 level, and limited to speaking and listening, were not always available, whereas there might be tests at a higher level or including reading and writing skills.
+All the websites giving the relevant information were in English.
+These may, of course, have been teething troubles, given that the proceedings were launched before the Rule had come into force.
+The most recent information from the Secretary of State was that, as from 6 April 2015, the approved A1 test for partners overseas will be the International English Language Testing System (IELTS) Skills for Life test offered by the IELTS consortium (the University of Cambridge English Language Assessment, the British Council and IDP Education Ltd).
+The British Council website provides some useful information.
+It explains that the IELTS Life Skills test is a new test for people who need to prove their speaking and listening skills at A1 or B1 level on the CEFR.
+A secure English language test (SELT) can be taken at around 100 test centres around the world.
+There is a link to the United Kingdom Visa Information website which gives their locations.
+The test involves a face to face conversation lasting 16 to 18 minutes with the examiner and another candidate.
+It cannot be taken on line or over the telephone.
+There are now listening test samples on the IELTS website.
+These cases
+This case has proceeded on the basis of assumed facts (the Secretary of State not being in a position to agree them all) in order to test the lawfulness or otherwise of the pre entry language requirement, as set out in the Rules and Guidance quoted above.
+There are two appellants, both women who are British citizens married to foreigners.
+Their husbands have not applied for entry clearance because they believe themselves unable to satisfy the pre entry language requirement and accordingly the not inconsiderable fee for making an application would be wasted.
+Saiqa Bibi is a British Citizen who was born in Coventry and lives with her family in the West Midlands.
+In April 2009, she married Mohammed Jehangir, a citizen of Pakistan.
+They have one child, a son born in 2010, who lives with his mother.
+The couple keep in touch with one another by telephone and occasional visits to Pakistan.
+They would like to live here together as a family.
+Mr Jehangir was educated to matriculation level in Pakistan but in Urdu.
+He neither speaks nor writes any English.
+There is no English tuition of the level required available locally to where he lives and to obtain it he would have to make a round trip of some four hours, to Mirpur or Islamabad.
+This is not practicable on a daily basis, so he would have to relocate for several months to Rawalpindi, which is not affordable.
+Mrs Saffana Ali is also a British citizen.
+She spent approximately two and a half years, from 2006 to 2008, visiting the Yemen, where she met and formed a relationship with her husband Mr Ali.
+When she returned to this country in 2008 they kept in touch over the telephone and decided to get married.
+She returned to the Yemen in May 2010 and they married there in July 2010.
+Mr Ali does not speak any English.
+He has not had any formal education and is illiterate and unfamiliar with the Roman alphabet.
+There is no test centre in the Yemen.
+Because her husband is unable to come and live with her here, Mrs Ali has remained with him in the Yemen, but she would like them to be able to live together here, where she has lived since a child and has family and friends.
+Article 8
+Everyone has the right to respect for his private and family life, his home and his correspondence: article 8(1), ECHR.
+In Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, the European Court of Human Rights observed that Whatever else the word family may mean, it must at any rate include the relationship that arises from a lawful and genuine marriage even if a family life has not yet been fully established.
+Not only that, family life, in the case of a married couple, normally comprises cohabitation.
+The latter proposition is reinforced by the existence of article 12, for it is scarcely conceivable that the right to found a family should not encompass the right to live together (para 62).
+Hence, as this court held in Aguilar Quila, married couples have a right to live together.
+However, in Abdulaziz, the European Court also held that article 8 did not impose a general obligation on the part of a Contracting State to respect the choice by married couples of the country of their matrimonial residence and to accept the non national spouses for settlement in that country (para 68).
+That statement was repeated by the Grand Chamber in the most recent case of Jeunesse v The Netherlands (2015) 60 EHRR 789 (para 107), which draws together the applicable principles.
+The jurisprudence of the court draws a distinction between cases where migrants who have been lawfully settled in a country for a long time face deportation or expulsion and cases where an alien is seeking admission to a host country.
+The former entails the possible breach of the negative obligation in article 8(2): There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society .
+The latter entails the possible failure of the state to comply with a positive obligation to permit the enjoyment of family life in that country.
+It concerns not only family life but also immigration (paras 104, 105).
+Nevertheless, although the criteria developed in the first context cannot be transposed automatically into the second, the applicable principles are, nonetheless, similar.
+In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the state enjoys a certain margin of appreciation (para 106).
+In cases involving family life and immigration, factors to be taken into account are the extent to which family life would effectively be ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of the alien concerned and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion (para 107).
+If family life was created when the people involved were aware that the persistence of family life within the host state would be precarious, it is likely only to be in exceptional circumstances that the removal of the non national family member will constitute a violation of article 8 (para 108).
+However, where children are involved, their best interests must be taken into account: Whilst alone they cannot be decisive, such interests certainly must be afforded significant weight (para 109).
+In Jeunesse, the Grand Chamber found that, although the applicant had married and had three children while her immigration status in the Netherlands was precarious, there were exceptional circumstances such that a fair balance had not been struck between the competing interests involved: the husband and three children were all citizens of the Netherlands with the right to enjoy family life there; the applicant had lost her Dutch nationality when Suriname became independent and not through her own choice; she had been living in the Netherlands for 16 years and had no criminal record; although there were no insurmountable obstacles to the whole family settling in Suriname, they would experience a degree of hardship if forced to do so; and the Dutch authorities had paid insufficient attention to the problems the children would face in either having their whole lives disrupted by a move to Suriname or being separated from their primary carer.
+In the circumstances, it was questionable whether general immigration policy considerations of themselves can be regarded as sufficient justification for refusing the applicant residence in the Netherlands (para 121).
+Although Strasbourg analyses these cases in terms of a fair balance, in this country we have, at least since the decisions in Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167 and Aguilar Quila, spelled out the principles in conventional proportionality terms.
+As Lord Wilson put it in Aguilar Quila, para 45, following Lord Bingham in Huang, para 19, four questions generally arise: (a) is the legislative objective 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?
+(a) Legitimate aim
+It is important to appreciate that, although the context of this case is immigration, the Government has never suggested that the aim of the Rule is to limit immigration by spouses and other partners of people settled here.
+It does not operate, and is not intended to operate, as a cap on the number of partners admitted.
+It has long been taken for granted that the wives of British citizens have the right to join their husbands here traditionally, wives were expected to assume their husbands nationality and domicile on marriage, and indeed there may still be countries in the world where women lose their nationality of origin on marrying a foreigner.
+British immigration law originally reflected this right, but was obliged, following the Abdulaziz case, to afford it also to the husbands of British citizen wives.
+The same right was later extended to unmarried couples who had been living together in a relationship akin to marriage for some time and then to civil partners and same sex couples living together in a relationship akin to civil partnership.
+All of this reflects the importance attached to family relationships in modern international human rights law.
+The Universal Declaration of Human Rights of 1948 proclaimed that The family is the natural and fundamental group unit of society and is entitled to protection by society and the state (article 16.3).
+The International Covenant on Civil and Political Rights of 1966 translated this into a binding obligation in exactly the same words (article 23).
+Both of these documents proclaimed that the rights they provided must be respected without discrimination on grounds such as race and sex (article 2 in each case).
+The Human Rights Committee, in General Comment No 19 (1990), explained that different States might have different concepts of the family, but whatever their concept, it must be afforded the protection required.
+The International Covenant on Economic and Social Rights goes even further, in providing that The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society (article 10.1).
+Appendix FM to the Immigration Rules does impose some limits on the right of partners to come here.
+For example, they must fulfil certain suitability requirements, mainly relating to the lack of criminal convictions; the couple must both be at least 18 and their relationship must be genuine and subsisting; and they must be able to support and house themselves from their own resources.
+In general, these are aimed at the protection of society from harmful behaviour, the prevention of abuse, and the protection of public funds.
+It is accepted that partners who come here will make use of those public services, such as education and the National Health Service, which are available to all.
+So what, then, are the aims of the English language requirement? As originally stated, they were three: (i) to assist the partners integration into British society at an early stage; (ii) to improve their employment chances, given that they have access to the labour market as soon as they arrive; (iii) to raise awareness of the importance of language and to prepare for the tests they will need to pass for settlement.
+Following the consultation, three further aims emerged: (iv) to save translation costs; (v) to benefit any children the couple might have; and (vi) to reduce the vulnerability of newly arrived spouses, especially women.
+In article 8 terms, these probably fall under the rubric of the interests of the economic well being of the country or, just conceivably, the protection of the rights and freedoms of others.
+Some may think, however, that they are not as important as the prevention of disorder or crime, which is the main aim of the suitability requirements, or the protection of the public purse, which is the main aim of the financial requirements.
+The appellants have filed extensive evidence in support of their arguments in response to the rather less extensive evidence filed on behalf of the government.
+Some of that evidence and argument is summarised and commented upon below.
+As to (ii), it is true that partners are permitted to join the labour market as soon as they arrive, and if they choose to do so, basic English language skills will no doubt help them to get a job outside their own community.
+It may well be that most husbands coming to join their wives here do intend to join the labour market, but the same may not be true of most wives.
+There is evidence that language skills are associated with higher earnings (but this may not be the only reason for persistent wage differentials between different cultural groups).
+But, valid though the aim is for those who do intend immediately to join the labour market, partners are not required or even expected to do so that is not the reason why they are admitted.
+As to (iii), the basic pre entry level might be some help in preparing for the settlement test, but in the opinion of Dr Geoffrey Jordan, the language expert who contributed to Dr Wrays report for the appellants, the pre entry test is of almost no value in getting the learner off to a flying start.
+It will pale into insignificance compared with the opportunities of learning the language over the (now) five years that the partner will have to be here before taking the settlement test.
+The need to pass the test before being allowed to stay here indefinitely should be sufficient incentive even for those who, perhaps for cultural reasons, might otherwise not be inclined or encouraged to do so.
+Of course, this would not be an incentive for those who are prepared to remain here without ILR and rely on their article 8 rights to resist removal.
+As to (iv), this was not among the original aims, and no one has been able to put any sort of financial value upon it.
+There are, as Mrs Helen Sayeed, for the Government, says, plenty of data suggesting there is significant reliance on translation support services (WS No 2, para 10).
+However, given the substantial burden of translation caused by the people who are already here, no one has shown what, if any, extra burden is occasioned by allowing partners to come here without any pre entry language requirement or how much help that requirement is in reducing the need for translation when communication really matters.
+As to (v), there is some evidence that children whose first language is not English do less well at school, but a pre entry language requirement will not ensure that English is spoken at home.
+Children already here have ample opportunities for learning the language outside the home; children coming here with the foreign partner (which, as Mrs Sayeed says, is less likely because many of those seeking marriage visas are newly married) will have similar opportunities; children are usually much quicker at picking up another language than are adults and are often a valuable source of learning for their parents, rather than the other way around.
+More important, for children such as Saiqa Bibis son, the choice is not between having a parent here with or without basic English language skills but between having a parent here and not having a parent here at all; separation is likely to be far more damaging to the child than living with a parent who has yet to acquire any English.
+As to (vi), the Government does not assert that this is a key rationale, although if it has any impact it would likely be a positive one given the migrants better position to seek help/advice (Helen Sayeed, WS 2, para 16).
+Pragna Patel, of Southall Black Sisters, the best known organisation working with migrant women suffering domestic abuse, does not see a pre entry test as being of significant benefit to them: language is the least of the problems they face in obtaining access to advice and services.
+Nevertheless, it is likely that even basic language skills will be of some benefit to vulnerable women who come here as spouses.
+All the stated aims are, in reality, aspects of the first, which is to assist the partners integration into British society at an early stage.
+This is undoubtedly an important aim.
+In 2006, the Secretary of State for Communities and Local Government established an independent Commission on Integration and Cohesion.
+Their Report, Our Shared Future, was published in 2007.
+According to the Commission, cohesion is principally the process that must happen in all communities to ensure different groups of people get on well together; while integration is principally the process that ensures new residents and existing residents adapt to one another (para 3.2).
+Research done for the Commission by Ipsos MORI, Public Attitudes towards Cohesion and Integration, 15 June 2007, found that interaction with people from different backgrounds was seen as fundamental to fostering a better sense of community and cohesion.
+Inability to speak English was seen as the biggest barrier to being English.
+The Commission saw a shared language as being fundamental to integration and cohesion for settled communities, new communities, and future generations of migrants (para 5.35).
+Improving the availability of ESOL classes and reducing the amount of automatic translation of official information into other languages were among their key recommendations.
+It is not difficult to see the benefits to integration of even a basic level of English language skills.
+It must be beneficial for a newly arrived partner to be able to go into a shop and buy groceries and other necessities, to say hello to the neighbours, to navigate public transport, to inter act at a simple level with bureaucrats and health care professionals.
+Integration is a two way process.
+It must be beneficial for others to see that the people living in our midst and intending to stay here are able and willing to join in and play a part in everyday social interactions, rather than keeping themselves separate and apart.
+All of this is, to use the term used by Maurice Kay LJ, benign.
+The question for us, however, is how important a pre entry test is in achieving these benign aims.
+What value does it add to the post entry settlement test? There has been some suggestion that foreign spouses were not achieving the same standard as other applicants for ILR.
+This was because more of them were choosing the ESOL route than the LUK route to demonstrate the required knowledge of language and life in the UK.
+But, as already explained, taking an ESOL course is recommended for those whose first language is not English.
+Given that most foreign partners come from countries where the first language is not English, it is scarcely surprising that they should take such a course and, having taken it, choose this route to qualify.
+Now that all candidates are to be expected to take the same tests, no doubt most will still take an ESOL course in order to gain the required skills.
+More importantly, the expert evidence filed on behalf of the appellants suggests that the very basic level of language required by the pre entry tests will not be of much help to them.
+The best and quickest way to learn the language is by practice and immersion while here rather than in a foreign classroom.
+As the appellants language expert, Dr Geoffrey Jordan, put it Learning a second language is not like learning Geography or Law: it is more akin to learning to swim, drive or use a computer.
+To be a competent user of English as a second language requires that declarative knowledge (I know about this) becomes procedural knowledge (I can do this), and it is thus, essentially, a question of practice.
+It is also worth bearing in mind, as Dr Katherine Charsley explained in her evidence for the appellants, that there are several dimensions to integration economic, social, cultural and civic and that there are many processes of integration as well as language.
+It is also a two way process.
+She suggests that migrant side attempts to integrate may mean little or even have negative effects if the response of the host population is not inclusive.
+Further, she cites the Commissions suggestion that perceptions of inequality may undermine integration.
+Measures that are perceived as discriminatory and exclusionary are likely to be counter productive to integration by producing ill feeling, and undermining equality of opportunity and participation.
+The evidence therefore leads to the conclusion that the Rule does have a legitimate aim (or a series of aims all linked to the promotion of integration and with it the larger aim of community cohesion) and that the aim is sufficiently important to justify interfering with the fundamental right to respect for the family life of British citizens or persons settled here who wish to be joined here by partners from overseas.
+Nevertheless, the aim is not as important as the other aims to which the pre entry qualifications of foreign partners are addressed and the aim of a pre entry language requirement is not as important as the aim of ensuring that all migrants learn English once they are here.
+(b) A rational connection
+In this case it is not difficult to see a rational connection between the measure and the aim it seeks to achieve.
+I would not base this, as Beatson J did, on the suggestion that spouses and other partners are a key target group whose language skills after entry are not as good as those of other migrants.
+That is debateable.
+But a pre entry language requirement is also imposed upon economic migrants.
+While it may be doubted that requiring a very basic level of spoken English before entry makes a great contribution to the overall aim of promoting integration, it cannot be said that it makes no contribution towards it at all.
+(c) A less intrusive means
+Sir David Keene dissented in the Court of Appeal.
+He concluded that the pre entry test had not been shown by any substantial empirical evidence to be no more than is necessary to achieve the legitimate aim (para 59).
+The post entry test was achieving its object.
+The numbers of spousal migrants who had to seek further limited leave to remain because they had failed the test fell from 3,245 in 2007 (when it was first introduced), to 995 in 2008, to 470 in 2009.
+This was in any event a tiny proportion of the spousal migrants who achieved settlement in 2009.
+Of course, it is possible that some spousal migrants, having been granted entry clearance or leave to remain, never apply for ILR and so manage to avoid having to show that they know anything about the life and language of the UK.
+It is not currently possible to know how many people with expired visas have left the country and accordingly how many have not.
+It is known that there is a large number of over stayers but it seems inherently unlikely that many of these are spousal migrants.
+In the opinion of Dr Helena Wray, they have a regular path to settlement; they live amongst the settled community, often working or bringing up a family, so that it would be hard for them to go to ground; and they have the possibility of further limited leave to remain while taking or retaking the test.
+Thus the aim of integration through shared language skills is principally achieved through the post entry ILR language requirement, which involves virtually no interference with the right to respect for family life.
+Nevertheless, the longer a spousal migrant is here without acquiring the required language skills, the harder it will be to oblige them to leave.
+There is therefore some benefit to integration and cohesion in requiring a very basic level of language at the outset.
+In reality, this point merely serves to reinforce the point made earlier, that the aim of the pre entry test is benign but comparatively modest.
+The real question is whether a fair balance has been struck. (d) A fair balance?
+We do not have reliable figures on the impact which the pre entry requirement has had on the numbers of applications by partners for entry clearance.
+Indeed, this is one of the complaints made by the appellants the figures are in the hands of the Secretary of State and she should have been making a systematic study of the effect of the new Rule.
+The global figures do suggest that there was an upsurge in applications in 2010 before the Rule came into force and a dramatic falling off in 2011.
+Numbers were up in 2012 but had still not recovered to their 2009 level.
+The refusal rate was also far higher in the first half of 2012 than it had been in 2009 (the second half of 2012 will also have been affected by the increase in the household income requirements).
+The lack of systematic information makes it difficult to work out the extent of the interference with the article 8 right at a global level, although it seems clear that there has been some effect.
+However, it is not so difficult to work out the extent of the interference at an individual level.
+There will be some applicant partners who already have some command of English; there will be others who can arrange access to appropriate tuition without much difficulty; and among these there will be some who will not find it difficult to attend a test centre.
+For them the language requirement will not present such an obstacle that it can be termed an unjustified interference with their partners article 8 rights.
+There will, however, be many applicants who do not already have some command of the English language.
+Many of these will find it hard to arrange access to appropriate tuition.
+Dr Jordans evidence is that success in learning English as a second language in a foreign country is affected by factors such as age, education, economic and social position, cultural values, motivation, and quality of instruction.
+He points out that most people living in under developed countries are at a severe disadvantage due to their lack of contact with English, their low educational level and lack of study skills, their lack of intrinsic motivation, their lack of economic resources, their sometimes very different cultural values and their inability to avail themselves of any worthwhile English language instruction.
+In his opinion, the grammar based methods of teaching English which are still prevalent in many parts of the world, including the Indian sub continent, are not well suited to acquiring the oral communication skills required by the test.
+It was the lack of suitable tuition which led the Government originally to delay the introduction of the new requirement (see para 8 above).
+But the Government has since taken the view that their only responsibility is for the test.
+But the accessibility of such tuition is relevant to the question of fair balance.
+For example, people living in remote rural areas may experience serious difficulties in gaining access to suitable tuition, which may only be obtainable at unreasonable cost.
+There may also be some for whom getting to a test centre for the required 16 to 18 minutes face to face conversation will be impossible or prohibitively expensive.
+The interference with the article 8 rights of the British partners of the people who face these obstacles is substantial.
+They are faced with indefinite separation, either from their chosen partner in life, or from their own country, their family, friends and employment here.
+It is worth recalling that the interference in Aguilar Quila, which was termed colossal, was merely temporary, whereas the interference here may be permanent.
+The problem lies not so much in the Rule itself, but in the present Guidance, which offers little hope, either through the exceptional circumstances exception to the English language requirement (see paras 17, 18 above), or through the even fainter possibility of entry clearance outside the Rules (see para 20 above).
+Only a tiny number achieve leave to enter through these routes.
+This is not surprising given the way in which the Guidance is drafted.
+The impracticability of acquiring the necessary tuition and practice or of accessing a test centre is not enough.
+Financial impediments are not enough.
+Furthermore, all applications for an exception to be made will be considered on a case by case basis.
+This means that the considerable expense of making an application has to be risked, even though, on the current Guidance, the chances of success are remote.
+It is not enough to say (see para 7.2 of the Guidance at para 18 above) that partners are expected to be self sufficient without recourse to public funds when they come to this country and can therefore be expected to find the resources to meet this requirement.
+It is one thing to expect that people coming here will not be dependent upon public funds for their support.
+It is quite another thing to make it a condition of coming here that the applicant or sponsor expend what for him or her may be unaffordable sums in achieving and demonstrating a very basic level of English.
+Given the comparatively modest benefits of the pre entry requirement, when set against the very substantial practical problems which some will face in meeting it, the only conclusion is that there are likely to be a significant number of cases in which the present practice does not strike a fair balance as required by article 8.
+This does not mean that the Rule itself has to be struck down.
+There will be some cases in which the interference is not too great.
+The appropriate solution would be to recast the Guidance, to cater for those cases where it is simply impracticable for a person to learn English, or to take the test, in the country of origin, whether because the facilities are non existent or inaccessible because of the distance and expense involved.
+The guidance should be sufficiently precise, so that anyone for whom it is genuinely impracticable to meet the requirement can predictably be granted an exemption.
+As was originally proposed, those granted an exemption could be required to undertake, as a condition of entry, to demonstrate the required language skills within a comparatively short period after entry to the UK.
+Article 14
+The appellants also complain that the requirement discriminates against some people in the enjoyment of their article 8 rights on grounds of nationality and may also be discriminatory on grounds of race or ethnicity.
+On its face, it is directly discriminatory on grounds of nationality.
+Nationals of the listed countries (see para 13 above) are exempt.
+I would not, therefore, agree with Beatson J that it is not directly discriminatory because nationals of Anglo phone countries are not similarly situated to nationals of other countries.
+I agree with Ms Karon Monaghan QC, for Liberty, that it is not possible to use the protected characteristic as a basis for holding that their situations are relevantly different.
+They are all in the same situation of wanting to come to this country to join their partners who are settled here.
+However, direct discrimination, even on grounds of nationality, is capable of justification under article 14.
+In the context of immigration, nationality is not a particularly suspect classification.
+The appellants complain that the exemptions are irrational.
+Canadians, for example, are exempt, even though there are many Franco phone Canadians for whom English is not the first language and some for whom it is not even a second language.
+Nigerians, on the other hand, are not exempt even though English is the medium of instruction in all Nigerian secondary and most Nigerian primary schools.
+The Anglo phone Caribbean countries are exempt, even though their success rate in the LUK test for ILR is only average.
+However, in the context of a language requirement, being a national of an Anglo phone country is a reasonable proxy for a sufficient familiarity with the English language to be able to begin to integrate with the local community immediately on arrival.
+This is a context in which a bright line rule makes sense.
+If the discrimination were not held justifiable, it would not follow that the English language requirement should be abolished.
+As with any discriminatory rule of this sort, the choice of cure can either be to level up or to level down.
+The Government could choose either to abolish the requirement altogether or to apply it to everyone, including partners from the exempt countries.
+The discrimination argument therefore adds nothing to the article 8 argument, which for the reasons already explained, may lead to the conclusion that Convention rights have been violated in a significant number of cases.
+Conclusion
+I would not strike down the Rule or declare it invalid.
+It will not be an unjustified interference with article 8 rights in all cases.
+It is capable of being operated in a manner which is compatible with the convention rights.
+Hence the appellants must be denied the remedy they seek.
+However, the operation of the Rule, in the light of the present Guidance, is likely to be incompatible with the convention rights of a significant number of sponsors.
+There may well be some benefit, therefore, both to individuals and to those administering the Rule, in declaring that its application will be incompatible with the Convention rights of a UK citizen or person settled here, in cases where it is impracticable without incurring unreasonable expense for his or her partner to gain access to the necessary tuition or to take the test.
+But this was not the remedy sought by the appellants and we have received no submissions on it.
+I would therefore invite such submissions before finally deciding the outcome of this appeal.
+LORD HODGE: (with whom Lord Hughes agrees)
+I agree with Lady Hale (a) that there is no basis for striking down rule E ECP 4.1 in Appendix FM to the Immigration Rules and (b) that the guidance, because of the narrowness of the exceptional circumstances for which it allows, may result in a significant number of cases in which peoples article 8 rights will be breached.
+To avoid that unfortunate outcome, the Government may need to take further steps toward providing opportunities for spouses and partners to meet the requirement or may need to amend its guidance.
+But I am not persuaded that the court should issue the declaration that she proposes and the range of her criticism of the guidance exceeds my concerns.
+I therefore set out my views briefly.
+In para 33 of her judgment Lady Hale summarises the six reasons which the Government have advanced for the introduction of a pre entry English language requirement.
+They are: (i) to assist the partners integration into United Kingdom society at an early stage; (ii) to improve their employment chances as they have access to the labour market as soon as they arrive; (iii) to raise awareness of the importance of language and to prepare for the tests they will need to pass for settlement in this country; (iv) to save translation costs; (v) to benefit any children the couple may have; and (vi) to reduce the vulnerability of newly arrived spouses, especially women.
+The appellants led evidence which sought to call into question the extent to which the proposed English language test could achieve those benign aims.
+Because the IELTS English language test is at a basic A1 level, the appellants argued with some force that its contribution to several of the listed aims may be modest.
+That may well be so.
+But like the majority of the Court of Appeal (Maurice Kay LJ (at para 30) and Toulson LJ (at para 52)) I consider that this courts role does not extend to overruling the predictive judgment of the executive branch of government on an issue of social policy at a stage when empirical evidence of the consequences of the policy is unobtainable.
+In my view the law gives the executive branch a wide margin of appreciation in its assessment of the consequences of its social policy in this sphere.
+In each of the appeals a female UK citizen has gone overseas and found a spouse from within a community with which she has a connection.
+Often it may be a male UK citizen who seeks to find a spouse or partner from within his community overseas, and in such cases the sixth purpose listed above may be an important good: the benefit which flows from language competence is not only improved access to advice in event of mistreatment but, more generally, the ability to lead ones life with a degree of independence and autonomy.
+In any event, it appears to me that the core aim of the policy is the first listed purpose, namely to assist the early integration of the incoming partner into UK society.
+Aims (ii) (employment), (iii) (raising awareness of integration) and (vi) (reducing vulnerability) are closely connected with this core aim.
+Together, they are not to be undervalued.
+It is in the general interest of all in this country that those who join its community become real participants in it, and are seen to do so.
+I would also not underestimate the value of establishing a minimum language familiarity before entry, since that will help to instil the need for integration.
+The monitoring of language proficiency subsequently can be difficult; it may be scarcely practicable, as well as harsh, to contemplate removal in the event of failure to achieve it, particularly once a family of children is established.
+But the debate about the efficacy of the policy to achieve those other aims is water swirling around the rock of the policy of promoting integration and thereby social cohesion within our society.
+The pre entry test is the first stage of the process of integration.
+Further, as Lady Hale has shown (para 26), the Strasbourg court has in several cases pointed out that there is no general obligation on a state to facilitate or allow a couple who are married to live within it.
+This court has made similar observations: ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166, para 19 per Lady Hale; R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre intervening) [2012] 1 AC 621, para 42 per Lord Wilson.
+Mixed nationality couples have no right to set up home in whichever country they choose.
+International instruments which seek to protect family life need to be read against that background.
+Nonetheless, the article 12 ECHR right to marry is a strong right (R (Baiai) v Home Secretary [2009] 1 AC 287, para 13 per Lord Bingham), and article 8 ECHR confers a right to respect for the resulting family, which is the fundamental social unit.
+That protection involves, as Lord Wilson stated in Aguilar Quila (above) at para 42, a fact specific investigation whether the states obstruction of a married couples choice to reside in it is justified under para 2 of article 8.
+It may well be that, as Lady Hale says (para 34 above), the principal article 8(2) purpose which is relevant is the interests of the economic well being of the country.
+But the value of social and cultural cohesion, and the reduction of isolation and mistrust, bear also on the rights and freedoms of others already living here.
+Of the four questions which Lord Wilson posed in Aguilar Quila at para 45, which Lady Hale sets out at para 29 of her judgment, I agree with her conclusions (a) that the legislative objective of integration and social cohesion is sufficiently important to justify limiting a fundamental right, (b) that the measures are rationally connected to that objective and (c) that they are no more than are necessary to accomplish it.
+The problem which the operation of the policy faces is the fourth question do [the measures] strike a fair balance between the rights of the individual and the interests of the community?.
+For the reasons which I discuss below, I think that there may be a number of cases in which the operation of the Rule in terms of the current guidance will not strike a fair balance.
+But there may also be many cases in which it will.
+The court would not entitled to strike down the Rule unless satisfied that it was incapable of being operated in a proportionate way and so was inherently unjustified in all or nearly all cases: R (MM (Lebanon)) v Secretary of State for the Home Department [2015] 1 WLR 1073, paras 133 and 134 per Aikens LJ.
+As a result, the appellants fail to show that the rule itself is an unjustifiable interference with article 8 rights.
+The principal problem which the operation of the rule is likely to confront relates to the availability and accessibility of English language tuition and testing overseas.
+Beatson J focussed on this matter in the seventh question which he posed for himself in para 81 of his judgment in this case in which he asked: What teaching and testing facilities are available in the countries from which there are significant numbers of applicants, how accessible are those facilities (in terms of geography and cost), and are such tests as are available appropriate for the standard required? In his discussion of the answer to this question (at paras 104 to 109 of his judgment) he recognised that the operation of the policy might give rise to questions of disproportionate interference in individual cases, depending on (a) whether the Home Secretary granted further exemptions to countries where there was no test centre and (b) how her officials dealt with particular cases.
+At paras 17 to 20 of her judgment Lady Hale sets out the current guidance given to officials on how they should consider exceptional circumstances under E ECP 4.2(c) in Appendix FM of the Immigration Rules.
+From the emphasis which she has supplied to certain passages in that guidance, it is clear that she takes issue with (a) the exclusion from exceptional circumstances of the lack of or limited literacy or education, and (b) the assertion that it is reasonable to expect the applicants or their sponsor to be able to afford reasonable costs incurred in making their application.
+I would not impugn either of those requirements in themselves.
+It is not, at least yet, demonstrated that limited literacy or education makes it unreasonable to expect an applicant to learn rudimentary English, or that the methods of teaching are not adjusted to such limitations, although it is likely to be true that classroom or traditionally grammatical methods are not.
+To my mind the principal problem which the evidence adduced by the appellants suggests is that within certain states, with which many UK citizens have a close connection, there are areas, including rural areas, from which it may not be reasonably practicable for the incoming spouse or partner to obtain the needed tuition without incurring inordinate cost, for example by having to travel long distances repeatedly or to reside for a prolonged period in an urban centre in order to complete the relevant language course.
+Dr Geoffrey Jordan suggested in Dr Helena Wrays second report that preparation for the A1 test could involve 90 hours of tuition (para 40).
+In principle, it is not unreasonable to expect some level of expenditure by the spouse/partner who aspires to live in this country or by the presently resident sponsoring party; the potential financial benefits of life in the UK are significant.
+But in a particular case the potential cost may be shown to be inordinate, undermining the fair balance which article 8 requires.
+Dr Jordan also stated that some testing centres offered the A1 speaking and listening test but required English reading skills in order to take it and others offered the test only when it was combined with tests involving reading skills.
+If that is still the case and it creates a significantly higher hurdle than the A1 test which the UK Government requires, that also might affect the fair balance in an individual case.
+It is impossible at the moment to predict what level of provision of testing centres will be made, or what identification of sources of tuition.
+Travel to a major city is likely to be an inevitable part of obtaining entry clearance or of eventual travel to the UK in any event.
+But the central issue is the accessibility of both tuition providers and approved testing centres which offer the stipulated test without additional language requirements.
+This will no doubt call for examination on the facts of specific cases.
+In my view in order to ensure a fair balance the Government should consider amending the guidance to allow officials to consider whether it is reasonably practicable for the incoming spouse to obtain the needed tuition and sit the test without incurring inordinate costs.
+I agree with Lady Hales approach to the article 14 case in para 58 of her judgment and I agree with the Court of Appeal (para 47) and Beatson J (para 145) that the common law challenge fails.
+I have concerns about making any declaration of incompatibility as (i) circumstances on the ground in the countries in which incoming spouses or partners reside are likely to be changing over time, (ii) I see little benefit in a generally worded declaration which gives no guidance on what makes it unreasonable to expect the incoming partner to comply with the Rule, and (iii) I am not persuaded that it is appropriate to extend declarations of incompatibility to circumstances outside the scope of section 4 of the Human Rights Act 1998.
+But I am content with Lady Hales proposal that we should invite submissions from the parties before reaching a concluded view on this suggestion and making our final determination.
+LORD NEUBERGER:
+I have had the benefit of reading in draft the judgments of Lady Hale and Lord Hodge.
+I agree that these two appeals should be dismissed because rule E ECP 4.1 in Appendix FM to the Immigration Rules (the Rule), set out in paras 12 13 above, is lawful.
+However, I also agree with them that the guidance (the Guidance) contained in para SET 17.9 (updated 15 February 2011) as expanded in the Immigration Directorate Instruction, set out in paras 16 20 above, seems to be bound to result in article 8 rights being infringed on a number of occasions.
+The Rule imposes what may be called a pre entry English requirement for spousal migrants ie it requires a foreign spouse or partner of a British citizen or person settled in the United Kingdom to produce a test certificate of knowledge of the English language to a prescribed standard prior to entering the United Kingdom, as Maurice Kay LJ described it below [2014] 1 WLR 208, para 1.
+As he went on to explain, [p]reviously such persons were only required to demonstrate such knowledge two years after entering the United Kingdom, and only then could they obtain indefinite leave to remain (ILR).
+In these proceedings, the appellants contend that the Rule infringes article 8 and that it therefore should be struck down.
+There is no doubt that it interferes with article 8 rights, and it therefore has to satisfy the familiar four tests, or Requirements, which are set out by Lady Hale in para 29 above namely, legitimate aim, rational connection, less intrusive means and proportionality.
+The aims of, or reasons for, the Rule are set out in summary form by Lady Hale at para 33 and by Lord Hodge at para 62.
+Opinions may no doubt differ as to the relative or absolute importance of each of these six aims, although I agree with Lady Hale and Lord Hodge in thinking that the first, assisting integration into British society at an early stage, is plainly the most important.
+However, improving employment prospects, benefitting children, and reducing vulnerability (especially of women) all seem to me to be very worthwhile aims, one or more of which could, in some individual cases, turn out to be more significant than the first aim.
+Accordingly, there can be no doubt but that these aims are plainly legitimate; indeed, they are the sort of aims which one would expect a government to have.
+The first Requirement, however, is not merely that the aims are legitimate, but that they justify interfering with, or limiting, a Convention right.
+In this case, the Rule interferes with the article 8 rights of men and women in this country whose partners abroad may be impeded in their attempts to join them in the United Kingdom.
+Although article 8.1 is very wide in its reach, article 8.2 of course makes it clear that it is not an absolute right, and it does not impose a duty on a state to facilitate, or even to allow, a married couple to live together.
+The limits on article 8.1 rights in this connection were helpfully summarised by Lady Hale in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166, para 19.
+Particularly bearing that factor in mind, it seems to me that, at any rate if taken at face value, the six aims represent a set of reasons which easily serve to enable the Rule to satisfy the first Requirement, as they are sufficiently important to justify the interference with article 8 rights in question.
+However, the evidence adduced on behalf of the appellants may be said to call into question whether the first Requirement is satisfied.
+I shall consider that evidence when dealing with the fourth Requirement, proportionality.
+However, for the purposes of the first Requirement, I am very dubious whether the evidence can, even on a quick reading, assist the appellants.
+The evidence does not suggest that implementation of the Rule will achieve its purpose in only a negligible number of cases; indeed, it would be surprising if any expert was prepared to say that in the light of the available information.
+Once it is accepted, as I think it must be, that the Rule is likely to achieve its purpose in a significant number of cases, I believe it must follow that the first Requirement is satisfied.
+As to the second Requirement, it is not in my judgment realistically possible to argue against the proposition that there is a rational connection between the six aims and the Rule.
+So far as the third Requirement is concerned, it was contended by the appellants that the Rule had not been shown to be the least intrusive way of achieving the six aims, or, to put it another way, it had not been established as being no more than necessary to achieve the six aims.
+In this connection, it is worth bearing in mind that the approach of a court to the third Requirement should not be absolutist.
+Indeed, it has been authoritatively said that the question it involves may be better framed as was the limitation of the protected right one that it was reasonable for the legislature to impose to achieve the legitimate aim, bearing in mind any alternative methods of achieving that aim per Lord Reed in Bank Mellat v HM Treasury (No 2) [2014] 1 AC 700, 791, para 75, citing Dickson CJ in R v Edwards Books and Art Ltd [1986] 2 SCR 713, 781 782.
+The appellants case, which was accepted by Sir David Keene in his dissenting judgment in the Court of Appeal, [2014] 1 WLR 208, paras 55 59, was based on the pre existing system.
+He considered that the evidence showed that that system, which involved relatively little interference with article 8 rights, was working satisfactorily, and therefore there was no need for the far more intrusive Rule.
+The figures provided by the Home Department, which Sir David cited in support of this view, showed that the numbers of spouses who failed the English test under the pre existing system were 3,245 in 2007, 995 in 2008, and 470 in 2009.
+I am not convinced that these figures assist the contention that the third Requirement is not satisfied.
+However, at least in relation to this appeal, that is an arid point which it is unnecessary to decide, because they clearly are relevant to the fourth Requirement (which Sir David also relied on in paras 55 59 of his judgment).
+At any rate, subject to that concern, it appears to me that the third Requirement is clearly satisfied.
+If there is to be a Regulation ensuring that would be spousal migrants (applicants) attain a specified level of English before coming to the UK, no less an intrusive alternative to the Rule has been suggested.
+That then leaves the final Requirement, proportionality.
+In addition to the evidence of figures provided by the Home Department and summarised at the end of para 86 above, the appellants rely on other evidence to which I have already alluded.
+As Lady Hale explains in paras 43, 44 and 47 of her judgment, the appellants have collated detailed expert assessments, including facts and opinions, from Dr Jordan, Dr Wray and Dr Charsley.
+In their view, there is real reason to doubt the likely efficacy of the Rule in achieving each of the six aims.
+They also explain that there will be a number of cases where application of the Rule in accordance with the Guidance is very likely to render it impossibly hard, in practical terms, for a person to attain the necessary proficiency in English or to take the test to prove that he or she has done so.
+This evidence does give rise to some concern, but I do not consider that it justifies the conclusion that the Rule infringes article 8.
+So far as the numbers of spousal migrants who fail the post entry test are concerned, it is fair to say that the figures set out at the end of para 86 are relatively small.
+However, those figures do not take into account the possibility that, once in the UK, some spousal migrants may never apply for ILR, and therefore have not been taken into account.
+Further, the Home Departments 2009 Equality Impact Assessment identified foreign spouses as the largest group who do not pass the English test after two years.
+It is therefore apparent that a significant proportion of spousal migrants who entered the UK each year did not learn English to the requisite standard during the two years following their arrival, but it is not possible to identify the precise proportion.
+That means that, each year, there was a significant, but unspecified, number of spousal migrants who (i) remained in the UK not speaking English, (ii) were deported after having lived here for more than two years, or (iii) learned English later.
+Both the available evidence and common sense lend support for the notion that category (ii) and, albeit more speculatively, category (iii), includes many fewer people than category (i).
+Even spousal migrants who, under the pre existing system, learned English after arriving were, at least on the Departments not unreasonable assessment, in a weaker position than they would be under the Rule, because the effect of the Rule is that spousal migrants learn English before arriving here and are therefore able to hit the ground running.
+As for the experts, they were not saying that the implementation of the Rule could do nothing to achieve the stated aims: they are sceptical whether it will do so to any significant extent, and they are concerned that it may, in some respects, be counter productive.
+They also consider that there will be many people for whom the possibility of learning English, or taking the relevant test, in their home country would be impossible or near impossible.
+The likelihood of, and the extent to which, the six aims will be achieved by implementing the Rule is, in the end, a matter of judgment, on which it is virtually inevitable that reasonable people who have carefully considered the matter, whether or not with any particular expertise, will differ.
+Similarly, it is very hard to assess how many people would be put in difficulties by having to comply with the Rule, and how great or insurmountable those difficulties might be.
+There is no reliable, objective, quantitative evidence available on any of those issues.
+Accordingly, it is unsurprising, that the appellants are able to rely on opinion evidence, which is based on experience and judgment.
+Given that it is not inherently improbable and that it comes from properly qualified and experienced experts, this evidence is worthy of respect.
+However, any court should be very slow indeed before relying on such evidence as the sole or main justification for invalidating government policy, particularly when the policy concerns a sensitive social issue, and the main aim of the policy is fairly described as benign, as Lady Hale says in para 41 above.
+As to the concerns about hardship or impossibility, when considering individual cases a great deal may depend on how the Rule is operated.
+However, the instant claims have been launched and argued on the basis of challenging the Rule in limine, and not how it is operated, let alone how it would have been applied in these two cases.
+It is true that it appears quite possible that the effect of implementing the Rule may not be particularly substantial.
+However, the court should accord to the executive a wide measure of discretion when deciding on the likely value of a policy such as that embodied in the Rule.
+Furthermore, the Home Department carried out two substantial Impact Assessments and two substantial Equality Impact Assessments before deciding to introduce the Rule, albeit that those assessments were not directed to the issue raised in these two cases, namely the impact on article 8 rights of people in this country.
+As Toulson LJ said in para 51 in the Court of Appeal, there is an inevitable degree of crystal ball gazing, when it comes to an experimental scheme such as that embodied in the Rule.
+In such a case, one must be wary of complaining about the lack of a quantitative or precise assessment of the extent of the likely benefits, and it is fair to add that no such complaint has been advanced.
+Where, as here, such an assessment is not a practical possibility, to insist on one would have two possible consequences, each of which would be unfortunate.
+First, it could lead to the abandonment of experimental policies, however well thought out they may be and however successfully they may have turned out.
+Alternatively, it could encourage artificial or bogus cost benefit and other quantitative analyses, which are already by no means unknown, and which devalue properly based quantitative analyses.
+I also agree that the challenge to the Rule based on article 14 also fails for the
+I agree therefore that (a) the Rule has a legitimate purpose, namely the six aims referred to above, which is sufficiently important to justify interfering with the lives of persons in the UK who wish to be united here with partners who are currently abroad, (b) there is plainly a rational connection between the Rule and its aims, (c) the provisions of the Rule are no more than is necessary to accomplish its aims, and (d) bearing in mind the wide measure of discretion which should be accorded to the executive in a case such as this and the research that was done in anticipation, the Rule strikes a fair balance between the rights of individuals and the interests of the community.
+reasons given by Lady Hale.
+Accordingly, for the reasons more fully given by Lady Hale and Lord Hodge (whose judgments have nuanced differences in their approaches, but whose essential reasoning appears to be the same), and in agreement with the conclusion reached by Maurice Kay and Toulson LJJ, I would dismiss these appeals.
+However, I have concerns about the Guidance.
+It does appear virtually certain that there will be a significant number of cases where application of the Guidance will lead to infringement of article 8 rights.
+By way of example, it may be impossible, in any practical sense, for a potential applicant to obtain access to a tuition and/or to a test centre.
+In particular, it appears that, in some countries, a person in a remote rural home either would have to travel repeatedly to and from a tuition centre many hundreds of miles away, or would have to find the money to rent a place to live near the tuition centre.
+Depending on the circumstances of the potential applicant, this may well render reliance on the Rule disproportionate.
+And, as Lady Hale points out, reliance on the absolute exclusion in the Guidance of [l]ack of or limited literacy or education from the category of exceptional circumstances, and the broad statement that it is reasonable to expect that [applicants] (or their sponsor ) will generally be able to afford reasonable costs incurred in making their application could easily lead to inappropriate outcomes in individual cases.
+Accordingly, I share Lady Hales concerns expressed in para 53, and it is also right to say that I also agree with what Lord Hodge says in para 73.
+In those circumstances, I see considerable attraction in granting declaratory relief to reflect the concerns we have about the application of the Guidance.
+This is an important and sensitive topic, and it could be unfortunate if there was no formal record of this courts concern about the application of the Guidance.
+That is particularly true given the public expenditure which has been devoted to these proceedings, coupled with the fact that a declaration may avoid the expenditure of further costs on subsequent proceedings involving a challenge to the Guidance.
+And a formal declaration now would avoid any further delay involved in establishing the correct approach to be adopted to applicants.
+However, it would be wrong to contemplate making, or even to speculate about the possible terms of, a declaration without first giving the parties the opportunity of making written submissions on the appropriateness of such a course and the terms of any potential declaration.
+While I am sympathetic to the notion of granting a declaration, it is only fair to add that it would be an unusual course to take (given that it has only been the Rule which was under attack in these proceedings), and to acknowledge that the Secretary of State may well persuade us that, if it was drafted so as to reflect our views at this stage, any declaration would be too unspecific to be helpful or would be otherwise inappropriate.
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+Section 28 of the Housing Act 1988 (the 1988 Act) identifies a measure of damages payable by a landlord to a residential occupier of premises whom he has unlawfully evicted from them.
+Construction of the section is not straightforward.
+On 25 September 2012 His Honour Judge Blunsdon, sitting in the Lambeth County Court, determined a claim for damages brought by Mr Loveridge against the London Borough of Lambeth (Lambeth).
+Mr Loveridge had been a residential occupier of premises let to him by Lambeth.
+The judge found that it had unlawfully evicted him from them.
+By reference to the construction of it which he favoured, the judge awarded Mr Loveridge damages of 90,500 under section 28 as well as of 9,000 otherwise than under the section.
+Lambeth appealed to the Court of Appeal against the judges award of damages under section 28.
+On 10 May 2013, by a judgment delivered by Briggs LJ with which Arden LJ and Sir Stanley Burnton agreed, [2013] EWCA Civ 494, [2013] 1 WLR 3390, the court favoured a different construction of the section, which led it to order that Lambeths appeal be allowed, that the judges award under section 28 be set aside in its entirety but that the award of damages otherwise than under the section be increased to 16,400.
+Against these orders Mr Loveridge now appeals.
+In November 2002 Lambeth granted to Mr Loveridge a weekly tenancy of a flat at 19 Moresby Walk, London SW8.
+The tenancy was secure within the meaning of section 79 of the Housing Act 1985.
+The flat was on the ground floor and was self contained with one bedroom.
+It was one of two flats in a purpose built two storey building and at all material times the flat upstairs, namely 20 Moresby Walk, was also subject to a secure tenancy.
+On 9 July 2009 Mr Loveridge went to Ghana, from where he did not return until 5 December 2009.
+He was in breach of a term of the tenancy agreement which required him to notify Lambeth of any absence from the flat for more than eight weeks.
+But he continued to pay the rent.
+On 22 September 2009, believing that he had died, Lambeth effected forcible entry to the flat; took possession of it by changing the locks; and left a notice to quit, expressed to expire on 26 October 2009.
+At around that expiry date it also cleared out his belongings and disposed of them.
+Two days after his return to England, but when he was unable to prevent it, Lambeth let the flat to somebody else.
+The judge rejected Lambeths contention that prior to 22 September 2009 Mr Loveridge had ceased to occupy the flat as his principal home and that his tenancy had therefore ceased to be secure.
+It was on that basis that the judge held Lambeths eviction of him to have been unlawful.
+It was agreed that his damages in respect of its trespass to his goods amounted to 9000; and so it was in respect of their trespass that the judge added 9,000 to his award of 90,500. 3.
+The parties further agreed that, at common law, the damages for any unlawful eviction of Mr Loveridge from the flat during the subsistence of a secure tenancy amounted to 7,400.
+Mr Loveridge contended, however, that he was entitled to a higher sum by way of damages under sections 27 and 28 of the 1988 Act and he conceded that, if so, he was precluded by section 27(5) from also receiving damages at common law in respect of the eviction. 4.
+The main purpose behind the 1988 Act was set out in a White Paper, Cm 214, entitled Housing: The Governments Proposals and presented to Parliament in September 1987.
+That purpose, set out in Chapter 3, was to stimulate the availability of rented accommodation in the private sector by making lettings more attractive to private landlords.
+This was to be achieved by provisions which extended the ambit of two types of tenancy which had been introduced by sections 56 and 52 of the Housing Act 1980.
+The first was the assured tenancy in which, when letting certain types of property, the landlord had been entitled to extract a market rent rather than a lower, fair, rent, albeit that his entitlement to recover possession at the end of the term had been restricted.
+The second was the protected shorthold tenancy in which, albeit at risk of a reduction of the contractual rent to a fair rent, the landlord had been entitled to recover possession at the end of the term.
+The 1988 Act duly extended the circumstances in which an assured tenancy could be granted; and it amended the description of a protected shorthold tenancy to an assured shorthold tenancy and changed its nature so as to enable the landlord to charge a market, rather than a fair, rent as well as to remain unshackled by any significant security of tenure on the part of the tenant at the end of the contractual term. 5.
+But the government, when introducing the bill which became the 1988 Act, and Parliament, when enacting it, both realised that it created a danger.
+It was that some unscrupulous landlords, tempted by the prospect of entering into new tenancies on terms much more favourable to themselves (or of selling their properties with vacant possession in what in 1988 was a spiralling real property market), would seek to drive out such of their existing tenants as, under the Rent Act 1977, enjoyed protection in respect both of rent and of security of tenure.
+So, in the White Paper, the government wrote: 3.17 It is important that existing tenants whose Rent Act rights will be preserved should be protected against the minority of landlords who may be prepared to harass them in order to obtain vacant possession and to relet at higher rents.
+The Government therefore proposes to increase the existing statutory protection by creating a new offence where the landlord harasses the tenant .
+The Government also proposes to strengthen the civil law to enable tenants who have been evicted illegally or forced out by harassment to claim greater compensation.
+This would be an important additional deterrent to harassment. 6.
+The facility for the unlawfully evicted tenant to claim enlarged compensation was duly provided in sections 27 and 28 of the 1988 Act, which are in Chapter IV of Part 1 of it.
+The chapter is entitled Protection from Eviction.
+Section 27 is entitled Damages for unlawful eviction.
+Subsection (1) provides: 7.
+This section applies if, at any time after 9th June 1988, a landlord (in this section referred to as the landlord in default) unlawfully deprives the residential occupier of any premises of his occupation of the whole or part of the premises. 8. 9.
+Section 27(2) provides that the section also applies if, in summary, the residential occupier yields occupation as a result of acts of harassment on the part of a landlord who knew that they were likely to have that result.
+Section 27(3), (4) and (5) provides: (3) Subject to the following provisions of this section, where this section applies, the landlord in default shall, by virtue of this section, be liable to pay to the former residential occupier, in respect of his loss of the right to occupy the premises in question as his residence, damages assessed on the basis set out in section 28 below. (4) Any liability arising by virtue of subsection (3) above (a) shall be in the nature of a liability in tort; and (b) subject to subsection (5) below, shall be in addition to any liability arising apart from this section (whether in tort, contract or otherwise). (5) Nothing in this section affects the right of a residential occupier to enforce any liability which arises apart from this section in respect of his loss of the right to occupy premises as his residence; but damages shall not be awarded both in respect of such a liability and in respect of a liability arising by virtue of this section on account of the same loss. 10.
+Section 27(6) provides that the landlord is not liable to pay damages under subsection (3) if in certain circumstances the occupier is reinstated in the premises. 11.
+Section 27(7) gives the court power to reduce damages under subsection (3) if, in summary, the occupiers conduct prior to the eviction makes it reasonable to do so or if the landlord had offered to reinstate him.
+The trial judge declined Lambeths invitation to him to exercise this power.
+Although in a second ground of appeal Lambeth challenged his ruling in this respect, and although the Court of Appeal noted that in the light of its conclusion on the first ground the second ground did not need to be determined, Lambeth no longer pursues it even in the event that Mr Loveridges appeal to this court were to succeed. 12.
+Section 27(8) provides the landlord with a defence to liability for damages under subsection (3) if, in summary, he proves that, when he deprived the occupier of occupation, he believed, and had reasonable cause to believe, that the occupier had ceased to reside in them.
+Lambeth raised this defence before the trial judge but he rejected it and Lambeth did not appeal against his ruling in this respect. 13.
+Section 27(9) provides definitions which apply both to that section and, by virtue of section 28(4), also to section 28.
+Two of the definitions are material. (a) The first, at (a), is the definition of residential occupier, which is to have the meaning set out in section 1 of the Protection from Eviction Act 1977, namely a person occupying premises as a residence, whether (as in the case of Mr Loveridge) under a contract or by virtue of any enactment or rule of law giving him the right to remain there. (b) The second, at (b), is the definition of a residential occupiers right to occupy, which is to include any restriction on the right of another person to recover possession of the premises in question. 14.
+Section 28 is entitled The measure of damages.
+Its relevant provisions are as follows and, since the issue surrounding its construction primarily relates to the terms of subsections (1)(a) and (3)(a), I will set them in bold: (1) The basis for the assessment of damages referred to in section 27(3) above is the difference in value, determined as at the time immediately before the residential occupier ceased to occupy the premises in question as his residence, between (a) the value of the interest of the landlord in default determined on the assumption that the residential occupier continues to have the same right to occupy the premises as before that time; and (b) the value of that interest determined on the assumption that the residential occupier has ceased to have that right.
+In relation to any premises, any reference in this section to the interest of the landlord in default is a reference to his interest in the building in which the premises in question are comprised (whether or not that building contains any other premises) together with its curtilage.
+For the purposes of the valuations referred to in subsection (1) above, it shall be assumed (a) that the landlord in default is selling his interest on the open market to a willing buyer; (b) . (2) (3) Although section 27(3) describes the damages payable to the tenant under section 28 as being in respect of his loss of the right to occupy, it is clear that they are designed to yield to him not the amount of his loss but, exceptionally, the amount of the gain which the landlord would otherwise have achieved by reason of the eviction. 15.
+It is clear that the principal target of sections 27 and 28 of the 1988 Act was the unscrupulous private landlord saddled with a tenancy protected, in terms both of rent and of security, by the Rent Act 1977 and therefore created prior to 15 January 1989, after which, as a result of section 34 of the 1988 Act, such a tenancy could not generally be created.
+Local authority landlords rarely perpetrate unlawful evictions of their tenants.
+When they do so, it is usually, as here, as a result of honest misjudgement and scarcely ever (although it was found to have occurred in AA v London Borough of Southwark [2014] EWHC 500 (QB)) as a result of any deliberate intention to act unlawfully.
+A local authority will not be motivated to seek to deploy its housing stock for gain.
+Nevertheless the words of section 27 are wide enough to cover an unlawful eviction on the part of a local authority; and when, as in the case of tenancies from the Crown, Parliament wished to exclude the operation of section 27 (and thus of section 28), it expressly so provided: section 44(2)(a).
+So it is agreed that the sections apply to an unlawful eviction of a tenant by a local authority. 16.
+Section 28(1) of the 1988 Act requires the court to make two valuations, namely (a) and (b), as at the time immediately prior to the unlawful eviction.
+Both valuations are of the landlords interest, which, by virtue of subsection (2), means his interest in the building in which the demised premises are comprised even if it contains other premises.
+In the present case it was therefore agreed that the valuations were to relate to Lambeths interest in the whole two storey building at Moresby Walk, including the upstairs flat. 17.
+The two valuations are to be determined on different assumptions.
+Valuation (a) is to be based on the assumption that the tenant continues to have the same right to occupy the premises as he had prior to his eviction.
+Indeed, in the light of the definition in section 27(9)(b) of the Act, the assumption that he continues to have the same right to occupy includes an assumption that he continues to enjoy the benefit of the same restrictions on the landlords right to recover possession as he enjoyed prior to the eviction.
+Valuation (b), by contrast, is to be based on the assumption that the tenant ceased to have that right, including that he ceased to enjoy that benefit. 18.
+The valuation exercises mandated by section 28(1)(a) and (b) of the 1988 Act would have been straightforward but for the further assumption which is mandated by section 28(3)(a).
+This provides that, for the purposes of both valuations, it shall be assumed that the landlord is selling his interest on the open market to a willing buyer.
+The interface between section 28(3)(a) and section 28(1)(a) is at the heart of the appeal. 19.
+Of course the notion that Lambeth would put the building at 19 and 20 Moresby Walk on the open market for sale is fanciful in the extreme.
+It could not dispose of the building without the consent of the Secretary of State: section 32(2) of the Housing Act 1985, as inserted by section 6(2) of and Schedule 1 to the Housing and Planning Act 1986.
+And, in the event of its proposed disposal to a private sector landlord, Lambeth would be required to consult the tenants and the Secretary of State could not give his consent if a majority of them had objected to it: paragraphs 2, 3 and 5 of Schedule 3A to the 1985 Act.
+It is agreed, however, that these formidable obstacles to sale are irrelevant.
+For the mandatory assumption is that Lambeth is indeed selling its interest on the open market.
+As Lord Donaldson of Lymington, Master of the Rolls, said in Tagro v Cafane [1991] 1 WLR 378, 387: the whole concept of the landlord selling his interest on the open market to a willing buyer assumes that he can sell it on the open market to a willing buyer 20. 21.
+It is further agreed that the least absurd hypothesis would indeed be of a sale to an ordinary private landlord rather than, say, to another local authority or to a private registered provider of social housing.
+The ordinary private landlord would be interested in purchasing the building for a simple reason: that, in his hands, the two sets of premises there could both generate market rents.
+Upon sale to him the secure tenancies held by the two tenants immediately prior thereto would cease to exist because the landlord condition of a secure tenancy would no longer be satisfied: sections 79 and 80 of the Housing Act 1985.
+Instead section 1(1) of the 1988 Act would convert the tenancies to being assured and would therefore confer on the landlord the power to bring the rents up to market level pursuant to sections 13 and 14 of that Act.
+It now becomes possible to explain the dispute between the parties about the nature of the valuations mandated by section 28 of the 1988 Act. 22.
+Mr Jenner was the chartered surveyor and valuer whom both parties initially instructed to provide valuations. (a) In respect of valuation (a), his instructions, once refined, were to value the building as at 22 September 2009 on the assumption that both flats were subject to secure tenancies.
+By reference to a capitalisation of the rents payable under the tenancies, Mr Jenners valuation (a) was in the sum of 123,000. (b) In respect of valuation (b), his instructions were to value the building as at 22 September 2009 on the assumption that the owner had vacant possession of the downstairs flat but that the upstairs flat was subject to a secure tenancy.
+By reference to the market value of properties comparable to the downstairs flat and to a capitalisation of the rent payable for the upstairs flat, Mr Jenners valuation (b) was in the sum of 213,500. (c) So the difference between Mr Jenners valuations (a) and (b) was 90,500, being the sum which the trial judge awarded to Mr Loveridge by way of damages under section 28. 23.
+Mr Robson was the chartered surveyor and valuer whom, with the courts permission, Lambeth instructed to provide valuations notwithstanding its prior joint instruction of Mr Jenner.
+It asked him to provide them on three different assumptions, of which it is only to the third that I need to refer, namely a sale on 22 September 2009 to an ordinary private landlord. (a) (b) In respect of valuation (a), his instructions were therefore to value the building as at 22 September 2009 on the assumption that both flats had then become subject to assured tenancies.
+By reference to market comparables, Mr Robsons valuation (a) was in the sum of 304,000.
+In respect of valuation (b), his instructions were to value the building as at 22 September 2009 on the assumption that the owner had vacant possession of the downstairs flat but that the upstairs flat had then become subject to an assured tenancy.
+By reference to market comparables, Mr Robsons valuation (b) was again in the sum of 304,000.
+For his opinion, not challenged by Mr Jenner, was that in 2009 there was no difference between the value of 19 Moresby Walk if bought with vacant possession and if bought subject to an assured tenancy. (c) So the difference between Mr Robsons valuations (a) and (b) was nil, being the sum which the Court of Appeal considered to be Mr Loveridges entitlement under section 28. 24.
+The issue is, therefore, whether the valuations of both flats (for valuation (a)) and of the upstairs flat (for valuation (b)) should be conducted on the assumption that they are subject to secure tenancies or to assured tenancies. 25.
+Lambeths case is primarily constructed upon section 28(3)(a) of the 1988 Act, which requires the assumption of a sale by the landlord on the open market.
+It contends that a market valuation of property must take into account a change in the use which a purchaser might make of the property and for which he may therefore make allowance in his offer.
+In this respect it cites the judgment of the Judicial Committee of the Privy Council in Raja Vyricherla Narayana Gajapathiraju v Revenue Divisional Officer, Vizagapatam [1939] AC 302, in which it was held that the market value of land subject to compulsory purchase should include such extra value as might be paid for the facility to collect fresh water which was generated by a spring on the land but which was presently going to waste.
+Lord Romer, at p 313, described it as self evident that the land was to be valued by reference not merely to the use to which it was being put but to the uses to which it was reasonably capable of being put. 26.
+With respect, Lord Romers proposition remains self evident.
+But the exercise mandated by section 28 of the 1988 Act is more complicated than an identification of market value.
+The assumption of a sale on the open market is for the purposes of the valuations referred to in subsection (1), in which other assumptions are mandated, namely (a) that the tenant continues to have the same right to occupy the premises as he had immediately prior to the eviction and, alternatively, (b) that he has ceased to have that right. 27.
+What was the right which Mr Loveridge had to occupy the downstairs flat immediately prior to the eviction? It was the right of a secure tenant.
+Lambeth correctly argues that the consequence of a notional sale to a private landlord would be to convert the status of Mr Loveridges tenancy (and indeed that of the tenancy upstairs) from secured to assured.
+But in my view the notional exercise mandated by subsection 3(a) of section 28 does not extend to making the consequential adjustments to the nature of Mr Loveridges right (or indeed that of the tenant upstairs) consequent upon sale.
+For that is barred by the words of subsection 1(a).
+Within this highly artificial exercise, regard to the effect of one assumption is halted by the terms of another. 28.
+The decision of the Court of Appeal in Osei Bonsu v Wandsworth LBC [1999] 1 WLR 1011 relates to another rare example of an unlawful eviction of a secure tenant by a local authority.
+As here, it was as a result of the local authoritys honest misjudgement.
+Under section 28 of the 1988 Act the trial judge awarded the tenant damages of 30,000.
+The court upheld Wandsworths argument that the award should have been reduced by two thirds pursuant to section 27(7).
+But Wandsworth also sought to challenge the figure of 30,000, which, as it had earlier agreed, represented the difference between the value of the house subject to a secure tenancy and its value with vacant possession.
+The court held that it was too late for Wandsworth to resile from the agreement.
+But it noted both Wandsworths proposed contention, which, but for the lateness, it regarded as strong, and the tenants proposed rebuttal of it, which it regarded as weak.
+Wandsworths proposed contention was that the tenants secure tenancy was held only jointly with his estranged wife and that therefore Wandsworth, which was in the process of rehousing her, had only to persuade her to serve it with a valid notice to quit for the tenancy to come to an end.
+There was therefore a feature of his tenure prior to the eviction which was unrelated to the notional sale and yet which made it extremely fragile.
+The tenants proposed rebuttal was that the hypothesis was of a sale by Wandsworth and that no purchaser would be likely to enjoy the same power of persuasion over the wife as Wandsworth enjoyed.
+In a judgment with which the other members of the court agreed, Simon Brown LJ said at p 1022: The clear answer to this argument, I am satisfied, lies in [Wandsworths] submission that what is being valued is the interest of the landlord not the abstract interest of a notional willing buyer.
+Although the concept of a willing buyer helps to fix the respective valuations, one postulates the landlords continuing ownership in fact.
+Although it may take time to understand his last sentence, Simon Brown LJ there expressed the view, with which I respectfully agree, that the likely effect of a sale upon the subsistence or otherwise of the secure tenancy should not be brought into the valuation exercise mandated by section 28.
+Briggs LJ in his judgment under appeal.
+He said in para 28: Mr Loveridges rights of occupation had, from the very grant of his secure tenancy, been vulnerable to being downgraded on a sale by his local authority landlord to a private landlord.
+It was a vulnerability inherent in the nature of his rights.
+The Lord Justice rightly put aside the extreme unreality of any such proposed sale.
+But he endorsed a valuation under section 28(1)(a) which was based upon a notional downgrading of the right which Mr Loveridge had prior to the eviction, namely the right of a secure tenant, so as to become the right only of an assured tenant.
+In my view his endorsement was wrong: for, as His Honour Judge Blunsdon had concluded in a judgment of enviable clarity, section 28(1)(a) requires the basis of the valuation to be that Mr Loveridge continues following the eviction to have the same right to occupy as he had prior to the eviction.
+I therefore propose that the appeal should be allowed and the judges order restored. 30.
+Parliament might wish to revisit the application of section 27, and therefore of section 28, of the 1988 Act to unlawful evictions on the part of local authorities.
+No doubt all reasonable means of dissuading them from making unlawful evictions, whether by misjudgement or otherwise, should be in place.
+But the facts are that Lambeth did not realise a capital gain, and never aspired to realise a capital gain, as a result of its eviction of Mr Loveridge; and that its intention was always to re let the flat and that, once it did so, even its notional gain was eliminated.
+In such circumstances it seems wrong that, by reference to a calculation of its notional gain, the law should require payment to Mr Loveridge out of public funds in an amount which is 12 times greater than that of his loss. 29.
+Nobody could have put Lambeths argument more persuasively than did
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+The appellant brought a claim for judicial review of a decision of the respondent, on 21 February 2012, to approve a Revenue Budget for 2012/13 in relation to the provision of youth services.
+In his claim form he applied for declarations that the respondent had failed to comply with section 149 of the Equality Act 2010 and section 507B of the Education Act 1996 and for an order quashing the decision to approve the budget.
+The claim was dismissed at first instance (Wyn Williams J) and the appellant was ordered to pay the respondents costs, subject to a proviso against enforcement of the order without further permission of the court.
+He obtained limited permission to appeal on two grounds.
+The Court of Appeal (Moore Bick, Rimer and Underhill LJJ) decided the two substantive issues in his favour but did not grant him any relief, dismissed his appeal and ordered him to pay half of the respondents costs of the appeal.
+This appeal is about the form of the Court of Appeals disposal of the matter.
+The appellant submits that since the court held that the respondent had failed in its statutory obligations, it should have made a declaration to that effect and should have made an order for costs in his favour.
+The underlying facts and issues are set out in the very thorough judgment of Wyn Williams J, [2012] EWHC 1928 (Admin), and recapitulated, so far as was necessary, in the judgment of the Court of Appeal delivered by Rimer LJ, [2013] EWCA Civ 1320.
+For present purposes a briefer outline will be sufficient.
+The appellant was born on 17 April 1991.
+He suffers from ADHD and has other difficulties.
+He was therefore a qualifying young person within the meaning of section 507B of the 1996 Act, which required the respondent, so far as reasonably practicable, to secure access for him to sufficient educational and recreational leisure time activities for the improvement of his well being.
+Section 507B(9)(b) required the respondent in exercising its functions under that section to secure that the views of qualifying young persons in the authoritys area are taken into account.
+The appellants disability was also a protected characteristic which brought into play, in relation to him, the public sector equality duty (PSED) contained in section 149 of the 2010 Act.
+The section required the respondent to have due regard to the statutory equality needs in the exercise of its functions.
+By its decision on 21 February 2012 the respondent approved a reduction in its youth services budget for 2012/13 of 364,793.
+The appellant was concerned about the impact which this was likely to have on the provision of services for young persons with disabilities and, in particular, on a weekly youth club for vulnerable young people which he used to attend.
+At first instance wide ranging criticisms were made of the way in which the respondent had reached its decision.
+They were all rejected.
+At the end of the hearing and before giving judgment, the judge asked counsel for written submissions on relief if he found that there had been illegality.
+The note on relief provided by Mr David Wolfe QC and Ms Aileen McColgan on behalf of the appellant stated that he asked for a quashing order.
+No mention was made of alternative relief in the form of a declaration.
+Ms Jane Oldham noted the omission in her response on behalf of the respondent, observing that it appears that no declaratory relief is sought and D takes it that the claim for declaratory relief [in the claim form] is abandoned, since otherwise C would, in response to the request of Wyn Williams J, have set out the terms of any declaratory relief sought.
+Mr Wolfe and Ms McColgan provided a written reply which again made no reference to asking for declaratory relief.
+In view of the judges rejection of the challenges to the legality of the respondents approval of the budget, the question of relief did not arise for decision, but the judge rejected an argument by the respondent that the provisions of the Local Government Finance Act 1992 would have prevented him from quashing the decision to approve the budget.
+He said that if he had been persuaded that the respondent had acted unlawfully, it would have been open to him to grant any remedy which was appropriate.
+The grounds on which the appellant was given leave to appeal were that the respondent had failed in its equality duty (PSED) under section 149, because although equality impact assessments (EIAs) had been carried out relating to the impact of the budgetary cuts, the EIAs had not been provided to the members who took the decision (and the judge had been wrong to infer that the members had read them merely because they had been told how they could be accessed); and that it had failed in its consultation duty under section 507B(9)(b) because there was no evidence of consultation with young people before making the decision to cut the budget (as distinct from meetings with management committees of young peoples organisations to explain to them where the axe would fall).
+These grounds were developed in the appellants skeleton arguments in the Court of Appeal.
+As to relief, it was submitted that the decision under challenge should be quashed.
+No alternative submission was made about declaratory relief.
+The judgment of the Court of Appeal was given on 6 November 2013.
+The court upheld the appellants argument under section 149.
+It expressed some doubt about whether section 507B(9) was applicable, but this was not disputed by the respondent.
+Accordingly the court proceeded on the assumption (but without deciding) that the section was applicable, and on that assumption it upheld the appellants argument.
+However, the court refused to make the quashing order which was sought.
+Rimer LJ said that although in theory a quashing order could be made, the court could not see how this could be done without quashing the respondents decision to approve the entire revenue budget for the financial year 2012/13, which had expired nearly three months before the appeal was heard.
+He concluded: 94.
+It is now too late to unwind what has been done.
+Judicial review is a discretionary remedy and, even though we have accepted the substantive points which Mr Hunt has advanced, we are of the firm view that he ought not to be granted the quashing order for which he asks.
+To do so would be detrimental to good administration. 95.
+We refuse to grant any relief to Mr Hunt and therefore dismiss the appeal.
+No mention was made in the judgment about whether the order should include a declaration to reflect what was said in it about the respondents failure to discharge its statutory obligations, no doubt because the subject had never been raised on behalf of the appellant and in any event it would be open to counsel to make suggestions as to the appropriate form of order in the light of the matters determined in the judgement.
+It would have also have been open to counsel to raise the matter of declaratory relief on receiving the judgment in draft if it was something which they had meant to raise.
+Counsel for the appellant did neither.
+Counsel for the respondent prepared a draft order stating that the appeal was dismissed, and counsel for the appellant stated in written submissions that the parties were agreed on the order except in relation to costs.
+I would reject the appellants complaint that the Court of Appeal was wrong not to make a declaration of its own initiative.
+The complaint is redolent of hindsight.
+It is no doubt triggered by the courts decision on costs, but they are separate matters.
+The judgment of the Court of Appeal itself ruled that the respondent acted unlawfully, and the authority of the judgment would be no greater or less by making or not making a declaration in the form of the order to the same effect.
+However, in circumstances where a public body has acted unlawfully but where it is not appropriate to make a mandatory, prohibitory or quashing order, it will usually be appropriate to make some form of declaratory order to reflect the courts finding.
+In some cases it may be sufficient to make no order except as to costs; but simply to dismiss the claim when there has been a finding of illegality is likely to convey a misleading impression and to leave the claimant with an understandable sense of injustice.
+That said, there is no must about making a declaratory order, and if a party who has the benefit of experienced legal representation does not seek a declaratory order, the court is under no obligation to make or suggest it.
+The appellant is on much stronger ground in relation to costs.
+The submissions to the Court of Appeal on his behalf made no reference to the costs at first instance, and it was remiss to agree to an order that the appeal should be dismissed, when there were obvious grounds for arguing that in relation to costs the judges order should be set aside and replaced by an order in the appellants favour.
+However, in relation to the costs in the Court of Appeal, the points were properly made that the appellant had succeeded on both the issues as to the respondents statutory duty; that there were wider lessons for local authorities to learn from the case about their duties under each of the relevant sections; that the lapse of time, as a result of which the relevant financial year had now passed, was not the fault of the appellant; and that to deny the appellant his costs would be likely in practice to dissuade claimants from pursuing legitimate public law challenges.
+The respondent submitted that the appellant had not in substance been successful; that he had not obtained any result of any practical utility; and that he had known about the practical problems which would be involved in attempting to unwind the budget from evidence submitted by the respondent before the original hearing.
+Delivering the reasons for the courts judgment on costs, ([2013] EWCA Civ 1483) Rimer LJ said that by the time that the appeal came on for hearing, it was far too late to consider granting any relief (by which he must have had in mind a quashing order), even if as to which the court had doubts it might have been appropriate for relief to be granted a year earlier when the matter was before Wyn Williams J. He continued: 5.
+In these circumstances, the court considers that it would be wrong in principle to award any costs to Mr Hunt.
+The appeal proved to be of no practical value to him; and, in the courts view it was always one which was destined to fail. 6.
+As the council was the successful party in the appeal, the court considers that it is in principle entitled to its costs.
+On the other hand, the court has regard to the fact that the council resisted the appeal not only on the basis that this was not a case for relief, but also on the two substantive grounds on which it lost.
+Its resistance on those two grounds increased the costs of the appeal.
+We regard that consideration as pointing away from an order awarding the council all of its costs.
+The court concluded that the respondent should be entitled to recover half of its costs of the appeal.
+The discretion of a court in a matter of costs is wide and it is highly unusual for this court to entertain an appeal on an issue of costs alone.
+But the Court of Appeal said that it reached its decision as a matter of principle, treating the respondent as the successful party.
+In adopting that approach, I consider that the court fell into error.
+The rejection of the respondents case on the two issues on which the appellant was given leave to appeal was of greater significance than merely that the respondent had increased the costs of the appeal by its unsuccessful resistance.
+The respondent was successful only in the limited sense that the findings of failure came too late to do anything about what had happened in the past, not because the appellant had been slow to raise them but because the respondent had resisted them successfully until the Court of Appeal gave its judgment.
+The respondent was unsuccessful on the substantive issues regarding its statutory responsibilities.
+There are also wider public factors to consider.
+Public law is not about private rights but about public wrongs, as Sedley J said in R v Somerset County Council, Ex p Dixon [1998] Env LR 111 when considering a question of standing.
+A court may refuse permission to bring a judicial review claim if it considers the claimant to be a mere meddler or if it considers that the proceedings are unlikely to be of sufficient significance to merit the time and costs involved.
+But in this case the court considered that the issues were of sufficient significance to give permission.
+And the ruling of the court, particularly under section 149, contained a lesson of general application for local authorities regarding the discharge by committee members of the councils equality duty.
+If a party who has been given leave to bring a judicial review claim succeeds in establishing after fully contested proceedings that the defendant acted unlawfully, some good reason would have to be shown why he should not recover his reasonable costs.
+I cannot see that the fact that in this case the determination of illegality came after it was too late to consider reopening the 2012/13 budget provided a principled reason for making the appellant pay any part of the respondents costs.
+On the contrary, for the reasons stated the appellant was in principle entitled to some form of costs order in his favour.
+The issues raised by the appellant at first instance were considerably wider than the issues on which he was given permission to appeal.
+They included, for example, a far reaching challenge to the adequacy of the respondents EIAs.
+This challenge required detailed rebuttal by the respondent.
+The appellant also persisted in seeking an order to quash the decision approving the budget when that was unrealistic.
+Those are reasons for limiting the order for costs in his favour.
+Logically it might be said that a distinction should be drawn between the costs at first instance and in the Court of Appeal to reflect the different issues, but each hearing occupied the court for one day and the assessment can only be broad brush.
+I would allow the appeal, set aside the Court of Appeals order and substitute an order that the appellant should recover two thirds of his costs both at first instance and in the Court of Appeal.
+Having succeeded in reversing the costs orders made by the courts below, the appellant is entitled to his reasonable costs of so doing.
+However, a significant proportion of his written and oral argument before this court was directed to the question of a declaration.
+On that issue his argument had no merit when examined against the way that his case was presented in the lower courts, which only emerged fully from the submissions of the respondent.
+As at present advised, I would order that the appellant should recover two thirds of his costs in this court, to be assessed if not agreed; but the order should not be drawn up for seven days, during which time either party may, if so advised, make written submissions as to why a different order should be made.
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+In early 2006 the appellant, The United States of America, decided for strategic reasons to close the watercraft repair centre, known as RSA Hythe, which the United States Army maintained in Hampshire.
+The respondent, Mrs Nolan, was employed there as a civilian budget assistant, and the closure on 30 September 2006 involved her dismissal for redundancy on the previous day.
+She brought Employment Tribunal proceedings on 9 November 2006.
+The proceedings were brought under Part IV Chapter II, containing sections 188 to 198 of the Trade Union and Labour Relations (Consolidation) Act 1992 as amended by the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1995 (SI 1995/2587).
+I will call the Act as amended TULCRA and the Regulations by which it was amended the 1995 Regulations.
+Mrs Nolans complaint was that the appellant as her employer had, when proposing to dismiss her and other employees, failed to consult with any employee representative as required by the procedure for handling collective redundancies prescribed by Part IV Chapter II of TULCRA.
+There was no trade union at the base to represent Mrs Nolans and other employees interests.
+Accordingly, she made her complaint on the basis that she was an employee representative within section 188(1B).
+The appellant accepts that it made clear in June 2006 that there would be neither discussions nor consultation about the forthcoming closure.
+It denies that it was under the alleged duty.
+State immunity
+The appellant did not rely on state immunity when the proceedings were begun.
+It is common ground that it could successfully have done so.
+Whether this would have been under the State Immunity Act 1978 or at common law is presently immaterial.
+The 1978 Act is under section 16(2) inapplicable to proceedings relating to anything done by or in relation to the armed forces of a state while present in the United Kingdom.
+Assuming that section 16(2) applies, there would have been immunity under common law principles, summarised by Lord Millett in Holland v Lampen Wolfe [2000] 1 WLR 1573, 1583D F. Littrell v United States of America (No 2) [1995] 1 WLR 82 is an example of a successful common law plea of state immunity; see also Sengupta v Republic of India [1983] ICR 221.
+As to why there was no plea of state immunity, it was not apparent at the outset that the duty to consult under section 188 would apply to the closure of a base, rather than the consequences for employees after its closure.
+The potential for this extended understanding of the duty was only highlighted by the Employment Appeal Tribunal decision on 28 September 2007 in UK Coal Mining Ltd v National Union of Mineworkers (Northumberland Area) [2008] ICR 163.
+By then, the Employment Tribunal held, it was too late for the plea of state immunity which the appellant sought at that stage to raise.
+The validity of the extended understanding of the duty remains open to debate notwithstanding a later Court of Justice decision in Akavan Erityisalojen Keskusliitto (AEK) ry v Fujitsu Siemens Computers Oy (Case C 44/08) [2009] ECR I 8163, [2010] ICR 444, [2009] IRLR 944 (Fujitsu).
+TULCRA and EU law
+Section 188 of TULCRA is in general terms.
+Subsection 1 provides: (1) Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be [affected] by the proposed dismissals or may be affected by measures taken in connection with those dismissals.
+Subsections (2) and (3) state the aims and nature of the required consultation.
+Subsection (7) provides: (7) If in any case there are special circumstances which render it not reasonably practicable for the employer to comply with a requirement of subsections (1A), (2) or (4) the employer shall take all such steps towards compliance with that requirement as are reasonably practicable those circumstances.
+Various types of public employment are or may be taken outside the Part IV Chapter II, or outside the Act as a whole.
+Service as a member of the armed forces and employment which a minister certifies as required to be excepted from the Act for the purpose of safeguarding national security are taken entirely outside the Act by sections 274 and 275.
+Under section 273(1) to (4) the provisions of Part IV Chapter II of TULCRA have, for present purposes, no effect in relation to Crown employment and persons in Crown employment.
+Crown employment here means employment under or for the purposes of a government department or any officer or body exercising on behalf of the Crown functions conferred by an enactment, and employee and contract of employment mean a person in Crown employment and the terms of employment of such a person subject to a presently immaterial exception.
+Employment as a relevant member of House of Lords or House of Commons staff is outside Part IV Chapter II under sections 277 and 278.
+Under section 280, the term employee or worker does not include a person in police service, defined as meaning service as a member of any constabulary maintained by virtue of an enactment, or in any other capacity by virtue of which a person has the powers or privileges of a constable.
+Finally, under section 286(2) the Secretary of State may by order made by statutory instrument provide that the provisions of inter alia Part IV Chapter II shall not apply to persons or employment of such classes as the order may prescribe, or shall only apply to them with such exceptions and modifications as the order may prescribe.
+Part IV Chapter II of TULCRA gives effect to the United Kingdoms duty under European Union law to implement Council Directive 98/59/EC and its predecessor Council Directive 77/187/EEC.
+As originally enacted, it did not do so fully, with the result that the Commission brought proceedings against the United Kingdom which led to a Court of Justice judgment dated 8 June 1994 in Case C 383/92 [1994] ECR I 2479, [1994] ICR 664.
+One flaw identified by the judgment was that TULCRA (and its predecessor the Employment Protection Act 1975) did not require consultation in circumstances where employees did not enjoy union representation recognised by the employer.
+The Court of Justice held that Council Directive 77/187/EEC required member states to ensure that employee representatives would be designated for consultation purposes in such circumstances.
+The 1995 Regulations make provision accordingly by amending section 188.
+The Directive contains the following articles: Definitions and scope Article 1 1.
+For the purposes of this Directive: collective redundancies means dismissals effected by (a) an employer for one or more reasons not related to the individual workers concerned where, according to the choice of the member states, the number of redundancies is: (i) either, over a period of 30 days: at least ten in establishments normally employing more than 20 and less than 100 workers, at least 10% of the number of workers in establishments normally employing at least 100 but less than 300 workers, at least 30 in establishments normally employing 300 workers or more, (ii) or, over a period of 90 days, at least 20, whatever the number of workers normally employed in the establishments in question; workers representatives means (b) the workers representatives provided for by the laws or practices of the member states.
+For the purpose of calculating the number of redundancies provided for in the first subparagraph of point (a), terminations of an employment contract which occur on the employers initiative for one or more reasons not related to the individual workers concerned shall be assimilated to redundancies, provided that there are at least five redundancies. 2.
+This Directive shall not apply to: (a) collective redundancies effected under contracts of employment concluded for limited periods of time or for specific tasks except where such redundancies take place prior to the date of expiry or the completion of such contracts; (b) workers employed by public administrative bodies or by establishments governed by public law (or, in member states where this concept is unknown, by equivalent bodies); (c) the crews of seagoing vessels.
+Final provisions Article 5 This Directive shall not affect the right of member states to apply or to introduce laws, regulations or administrative provisions which are more favourable to workers or to promote or to allow the application of collective agreements more favourable to workers.
+While TULCRA in its original form (and its 1975 predecessor) failed until the 1995 Regulations properly to implement European Union law in certain respects identified in the Court of Justices judgment in Case C 383/92 (para 6 above), in other respects they went beyond the requirements of such law.
+In particular: they provided until the 1995 Regulations that the consultation a) obligations arose if even a single redundancy was proposed; b) they provided for consultation at the earliest opportunity until 1995 (when this was replaced by the Directive requirement in good time) and further provided (as TULCRA continues to do) for specific time limits within which consultation must occur (there being no such time limits in the Directives); and c) they applied (and TULCRA continued until 2013 to apply) to fixed term contracts (to which the Directive under article 1(2)(a) does not apply).
+Most importantly for the present appeal, TULCRA in its original and amended form and its 1975 predecessor: d) contained and contain no express homologue of article 1(2)(b).
+They all exclude Crown employees and those in the police service.
+But they do not exclude public administrative bodies or public law establishments generally.
+The present proceedings
+The proceedings initiated by Mrs Nolan have not taken a straightforward course.
+She succeeded before the Employment Tribunal (LJ Guyer, Mrs S Foulser and Mr M W Heckford), obtaining on 17 March 2008 an order for remuneration for a one month protected period.
+The order was on 15 May 2009 upheld on appeal by the Employment Appeal Tribunal (Slade J, Mr D Norman and Mrs R Chapman).
+On a further appeal, the Court of Appeal (Laws, Hooper and Rimer LJJ) on 26 November 2010 ordered that there should be a reference to the Court of Justice on the question, raised by the decision in UK Coal, whether the obligation to consult arises (i) when the employer is proposing, but has not yet made, a strategic business or operational decision that will foreseeably or inevitably lead to collective redundancies; or (ii) only when that decision has actually been made and he is then proposing consequential redundancies?
+The Court of Justice did not answer this question (Case C 583/10) [2013] ICR 193.
+It raised the issue whether Mrs Nolans dismissal by the appellant, which is not an EU member state, fell within the scope of Directive 98/59/EC, having regard in particular to article 1(2)(b).
+Having heard submissions on this point, the court on 18 October 2012 gave a judgment with two parts.
+First, the court held that the Directive was both by virtue of its adoption under article 100 of the former EC Treaty (now article 94 TEU) and by nature part of the legislation aimed at improving the internal market; that activities like national defence, falling within the exercise of public powers, are in principle excluded from classification as economic activity; and that, by virtue of article 1(2)(b), the dismissal of staff of a military base falls outside the scope of the Directive, whether or not the base belongs to a non member state (para 43).
+Secondly, the court addressed Mrs Nolans submission that it should nonetheless rule on the question referred by the Court of Appeal, on the basis that TULCRA extends the provisions of the Directive in national law to cover article 1(2)(b) situations (other than in respect of Crown employment or employees and persons in the police service).
+The court (disagreeing on this point with Advocate General Mengozzis approach) declined to give any such ruling on the basis that If the EU legislature states unequivocally that the measure which it has adopted does not apply to a precise area, it renounces the objective [of] seeking uniform interpretation and application of the rules of law in that excluded area (para 55).
+The upshot was that the Court of Justice simply declined jurisdiction.
+So the questions raised by UK Coal/Fujitsu and the Court of Appeals reference will in the present case have to be resolved, if ever necessary, domestically without further assistance from the Court of Justice.
+Whether it will be necessary to resolve them in this case appears doubtful.
+The first part of the Court of Justices judgment lent encouragement to an argument by the appellant that, since EU law did not require or intend a foreign state to be subject to the Directives consultation obligations, United Kingdom law should be read in the same sense.
+When the matter came back before the Court of Appeal after the Court of Justices ruling, Mrs Nolan was prepared to concede the correctness in law of this argument and did not appear.
+The Court of Appeal (Moore Bick, Rimer and Underhill LJJ) [2014] ICR 685 after hearing submissions from Mr John Cavanagh QC and Sir Daniel Bethlehem QC for the appellant nonetheless dismissed the appeal, and made an order (stayed pending any appeal to the Supreme Court) that there be a further hearing to deal with the remaining UK Coal/Fujitsu issue.
+The appellant duly sought permission to appeal to the Supreme Court.
+This was given on the basis that the appellant bear its own costs in respect of the appeal, including those of any advocate to the court who might be appointed, and do not seek any costs order in respect of any instance of the proceedings.
+The appeal has proceeded on that basis and The Honourable Michael Beloff QC and Sarah Wilkinson have been appointed and appeared as advocates to the court.
+The government, which might be expected to have an interest in the third point (vires) identified in the next paragraph, has not sought to intervene.
+The issues
+The appellant has through counsel raised two points of construction and one of vires.
+The first point of construction, argued by Mr Cavanagh QC, is that the domestic legal provisions should be given an interpretation conforming to that given in the first part of the Court of Justices judgment, at least as regards foreign states jure imperii activity.
+By jure imperii, is here meant any decision or act which is not jure gestionis, (or commercial) in nature.
+A state enjoys no general immunity in respect of jure gestionis decisions or acts.
+The second point, argued by Sir Daniel Bethlehem QC, is that the same construction should be reached as regards foreign states by virtue of or by reference to principles of international law forming part of or inspiring domestic law.
+The third point, that of vires, argued by Mr Cavanagh, is that the 1995 Regulations were ultra vires section 2(2) of the European Communities Act 1972, in that, when providing workers without trade union representation with the protection which the Court of Justice held in (Case C 383/92) to be required, they did not confine themselves to the sphere of EU law, as confirmed by the court in the present case, but went further by conferring extended protection on workers without trade union representation employed by public administrative bodies or public law establishments.
+There is some overlap between the considerations relied upon by the appellant in relation to the two points of construction.
+The appellant focused on the overlap, which meant in its submission that TULCRA could not and should not on any view apply to foreign states jure imperii activity.
+The two points have however different underlying logics.
+The logic of the first point is that TULCRA should be construed so as not to apply to employment by any public administrative body or public law establishment.
+The logic of the second is that TULCRA should be construed so as not to apply to foreign states jure imperii activity.
+The third point, vires, only arises if neither point of construction is accepted.
+It would if accepted have an effect similar to the first point, but only in circumstances where there is no trade union representation.
+In circumstances where there is trade union representation consultation would be required by primary legislation (TULCRA without reference to the 1995 Regulations), so that no question of vires could arise.
+The first point of construction
+Taking the first point of construction, it is a cardinal principle of European and domestic law that domestic courts should construe domestic legislation intended to give effect to a European Directive so far as possible (or so far as they can do so without going against the grain of the domestic legislation) consistently with that Directive: Marleasing SA v La Comercial Internacional de Alimentacion SA (Case C 106/89) [1990] ECR I 4135, Vodafone 2 v Revenue and Customs Comrs [2009] EWCA Civ 446, [2010] Ch 77, paras 37 38 and Swift v Robertson [2014] UKSC 50, [2014] 1 WLR 3438, paras 20 21.
+But that means avoiding so far as possible a construction which would have the effect that domestic implementing legislation did not fully satisfy the United Kingdoms European obligations.
+Where a Directive offers a member state a choice, there can be no imperative to construe domestic legislation as having any particular effect, so long as it lies within the scope of the permitted.
+Where a Directive allows a member state to go further than the Directive requires, there is again no imperative to achieve a conforming interpretation.
+It may in a particular case be possible to infer that the domestic legislature did not, by a domestic formulation or reformulation, intend to go further in substance than the European requirement or minimum.
+R (Risk Management Partners Ltd) v Brent London Borough Council [2011] UKSC 7, [2011] 2 AC 34, considered below, is a case where the Supreme Court implied into apparently unqualified wording of domestic Regulations a limitation paralleling in scope that which had been implied by the Court of Justice into general wording of the Directive to which the Regulations were giving effect: see Teckal Srl v Comune di Viano (Case C 107/98) [1999] ECR I8121 (Teckal).
+It concluded that the two had been intended to be effectively back to back.
+A reformulation may also have been aimed at using concepts or tools familiar in a domestic legal context, rather than altering the substantive scope or effect of the domestic measure from that at the European level.
+But that is as far as it goes.
+Directive 98/59/EC introduces requirements in favour of workers engaged in fields of economic activity.
+But it leaves it open to member states to apply or introduce even more favourable laws, regulations or administrative provisions than those it requires (article 5), and, whether or not article 5 confirms this, it certainly leaves it open to member states to apply or introduce similar or more favourable provisions in areas of non economic activity, such as those of workers employed by public administrative bodies or public law establishments excluded from the Directive because of its internal market base and focus.
+Heavy reliance was placed by the appellant on the Supreme Courts decision in R (Risk Management Partners Ltd) v Brent London Borough Council and Harrow London Borough Council [2011] 2 AC 34, in furtherance of the appellants case that the Regulations must be limited in scope by reference to the Directive.
+The Supreme Court in Risk Management applied under the Public Contracts Regulations 2006 (SI 2006/5), passed to give effect to Council Directive 2004/18/EC, similar reasoning to that adopted by the Court of Justice in Teckal.
+In Teckal the Comune de Viano had decided, without inviting competing tenders, to switch responsibility for its fuel supplies and heating system servicing from a private company, Teckal, to a corporate entity (AGAC), set up by a consortium of Italian municipalities to provide energy and environmental services to the participating authorities.
+Teckal challenged this decision as breaching Directive 93/36/EEC (a predecessor to Directive 2004/18/EC) on supply of goods.
+The Court of Justice examined the principles determining whether the new arrangement fell within the Directive 93/36/EEC, which contained the following definitions in article 1: (a) public supply contracts are contracts for pecuniary interest concluded in writing involving the purchase, lease [,] rental or hire purchase, with or without option to buy, of products between a supplier (a natural or legal person) and one of the contracting authorities defined in (b) below.
+The delivery of such products may in addition include siting and installation operations; contracting authorities shall be the state, regional or (b) local authorities, bodies governed by public law, associations formed by one or several of such authorities or bodies governed by public law;
+The Court of Justice gave this guidance: 50.
+In that regard, in accordance with article 1(a) of Directive 93/36, it is, in principle, sufficient if the contract was concluded between, on the one hand, a local authority and, on the other, a person legally distinct from that local authority.
+The position can be otherwise only in the case where the local authority exercises over the person concerned a control which is similar to that which it exercises over its own departments and, at the same time, that person carries out the essential part of its activities with the controlling local authority or authorities. 51.
+The answer to the question must therefore be that Directive 93/36 is applicable in the case where a contracting authority, such as a local authority, plans to conclude in writing, with an entity which is formally distinct from it and independent of it in regard to decision making, a contract for pecuniary interest for the supply of products, whether or not that entity is itself a contracting authority.
+In Risk Management, Risk Management Partners Ltd (RMP) complained that Harrow London Borough Council had awarded insurance contracts to a mutual insurer established by various local authorities without going through the public contract award procedure required by the 2006 Regulations.
+The Regulations applied to a public services contract, defined as: a contract, in writing, for consideration (whatever the nature of the consideration) under which a contracting authority engages a person to provide services but does not include a public works contract; or a public supply contract; The Regulations contained a list of contracting authorities which included a local authority.
+Article 1 of the Directive, to which the Regulations gave effect, applied to public contracts, defined as: contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services within the meaning of this Directive.
+The Directive defined contracting authorities as meaning: the state, regional or local authorities, bodies governed by public law, associations formed by one or several of such authorities or one or several of such bodies governed by public law.
+There was nothing in the Regulations in issue in Risk Management positively to have prevented the legislator going further than European law required.
+Nonetheless, the Supreme Court in Risk Management read the wording as qualified so as to have a like scope to that which the Court of Justice had given the Directive in issue in Teckal.
+The Supreme Courts reasoning is however important.
+In his leading judgment, Lord Hope of Craighead noted that the Teckal exemption was not referred to anywhere in the Directive.
+It is a judicial gloss on its language (para 17), and went on to say (para 22) that:
+In the other leading judgment in the case, Lord Rodger of Earlsferry said to
+like effect (para 92): the basis for implying the Teckal exemption into the 2006 Regulations is to be found in their underlying purpose, which was to give effect to the Directive.
+The absence of any reference to the exemption in the Regulations is of no more significance than the absence of any reference to it in the Directive that was being transposed.
+The exemption in favour of contracts which satisfy its conditions was read into the Directive by the Court of Justice in Teckal because it was thought to be undesirable for contracts of that kind to be opened up for public procurement.
+This was not just a technicality.
+It was a considered policy of EU law.
+It would be odd if a significant and policy based exemption were to apply in some member states and not others, especially as one of the aims of the Directive was to harmonise procedures.
+The 2006 Regulations give effect to the Directive in English law.
+In other words, they are the way in which English law secures the free movement of services and the opening up to undistorted competition in relation to contracts which are to be placed by English local authorities.
+That being the purpose of the Regulations, they, too, cannot be meant to apply in circumstances where that purpose is not relevant because a contracting authority intends to contract with a body which is not properly to be regarded as an outside body.
+Although the Teckal criteria were formulated with particular reference to the predecessors of the Directive, they are simply a way of identifying situations where the authority can be regarded as obtaining the products or services which it requires in house and, so, where there is no need to secure the free movement of services and the opening up to undistorted competition.
+In my view, the criteria are an equally good indication of situations where, for that reason, the 2006 Regulations have no application.
+The insight of Advocate General Trstenjak in para 83 of her opinion in Coditel Brabant [2008] ECR I 8457, 8482 is instructive.
+To hold that the Regulations did apply in these circumstances would involve saying that the legislature intended to attach weight to competition law objectives in an area where they have no legitimate application.
+This would, in turn, involve inappropriate interference with local authorities right to co operate in discharging their public functions.
+Lord Hopes further observations about the domestic legal history of the Regulations are relevant not only to construction, but also to the third point on vires, which I consider later.
+He said (para 24): As Waller LJ said in Oakley Inc v Animal Ltd (Secretary of State for Trade and Industry intervening) [2006] Ch 337, para 39, the primary objective of any secondary legislation under section 2(2) must be to bring into force laws which, under the Treaties, the United Kingdom has agreed to make part of its laws.
+There is nothing in the explanatory memorandum to the Regulations that was prepared by the Office of Government Commerce and laid before Parliament to indicate that it was intended to depart from the jurisprudence of the court as to the scope of the Directive.
+In paras 7.2 7.4 of the memorandum it was stated that the change to the legislation was necessary to implement the new public procurement Directive, that it clarified and modernised the previous texts and that the simpler and more consistent public sector text should reduce the burdens involved under the EU rules.
+If the Teckal exemption were to be held not to apply to the 2006 Regulations, it could only be because the purpose of the Regulations was to apply the public procurement rules to relationships that fell outside the regime provided for by the Directive.
+But that would not be consistent with the memorandum, and it would not be a permitted use of the power.
+In Risk Management, the indications were that the domestic measure was intended in the relevant respect to be no more than back to back with the European Directive.
+That cannot be said to be so in the present case.
+TULCRA contains no equivalent of article 1(2)(b) of the Directive.
+Instead, it contains specific and limited exceptions for Crown employment and employees and for certain others in public service.
+It is true that the remainder of the category of public workers comprised by article 1(2)(b) would have been relatively confined, comprising those engaged in the exercise of public powers, rather than economic functions, as the Court of Justice indicated in Scattolon v Ministero dellIstruzione, dellUniversit, e della Ricerca (Case C 108/10) [2012] ICR 740, paras 43 44.
+But this remaining category is nonetheless significant.
+Contrary to the appellants submission, its inclusion within the scope of TULCRA cannot have been mere oversight.
+The careful exclusion of several specified categories of public employee speaks for itself.
+The variation of the Directive scheme enables, and according to the Employment Appeal Tribunal (para 84) has in many cases enabled, cases to be brought by those representing workers in public authorities.
+There are also other respects in which provisions of TULCRA have given protection in the form of consultation obligations which extends or has in the past extended, clearly deliberately, beyond the European requirement.
+It is, as Underhill LJ observed in the Court of Appeal (para 24) well understandable that a Labour government should in 1975, with trade union encouragement, have decided to give the scheme an extended domestic application to public employees.
+That does not mean that the legislator in the present case necessarily realised or foresaw the existence of employees of a public authority consisting of a foreign non EU member state such as the appellant, operating within the United Kingdom a base with its own employees.
+The appellant is the only foreign state with military bases in the United Kingdom, and it appears that civilian employees at United States Air Force (as distinct from Army) bases in the United Kingdom were and are, it seems, employed by the Crown.
+But the fact that a particular rare situation affecting a foreign state has not been foreseen is no reason for reading into clear legislation a specific exemption which would not reflect the wording or scope of any exemption in European law.
+This is particularly so, when the natural reaction to any suggestion that a foreign state might be adversely affected in its jure imperii decisions taken, according to the appellant, at the level of the US Secretary of Defense and US Secretary of the Army and in Washington would have been that the foreign state would be entitled to rely on state immunity, in response to any suggestion that it should have consulted with its workforce in relation to a strategic decision to close any such facility.
+While there is no positive indication that this played a part in legislative or ministerial thinking, it is a factor of relevance when considering whether objectively TULCRA must be read as containing any such implied limitation as the appellant suggests.
+The Court of Appeal and the advocates to the court also referred to section 188(7), with its limitation under special circumstances of any obligation to consult to whatever might be reasonably practicable in those circumstances.
+It may be that this could be of assistance to the appellant, in resisting a claim that it had breached the consultation obligations in section 188.
+But to my mind it provides an unconvincing basis for any conclusion that this was, or is objectively, the way in the legislator should be seen as having catered for the possible anomalies that might flow from expecting a sovereign state to consult about a jure imperii decision to close a naval or military facility.
+Section 188(7) is directed to special factual situations raising issues of feasibility apt for evaluation by the Employment Tribunal.
+It is much less obviously designed for situations where consultation might be thought to be incongruous for high policy reasons.
+The second point of construction
+I turn therefore to the second point of construction and to the additional considerations which it raises.
+As in the courts below, so before us the arguments advanced have been, as Slade J described them, both sophisticated and imaginative.
+They have also been careful and helpful in enabling the court to reach a conclusion on them.
+But like the courts below, I would reject them.
+In substance, Sir Daniel Bethlehems submission on behalf of the appellant is that international legal considerations should lead to the recognition by the court of a tailored exemption from TULCRA in respect of dismissals involving redundancies arising from a jure imperii decision taken by a foreign state.
+He does not suggest that, if TULCRA otherwise applies, the appellant enjoys any defence outside TULCRA (such as act of state, which would only here arise if the challenge was to a decision or act of the appellant in the United States).
+His case depends on construing TULCRA as inapplicable to what happened.
+His starting point is the prima facie presumption that the legislator intends to legislate consistently with, and that legislation (if reasonably capable of being so construed) should be construed consistently with, the principles of international law: Salomon v Customs and Excise Comrs [1967] 2 QB 116, Alcom Ltd v Republic of Columbia [1984] 1 AC 580 and Assange v Swedish Prosecution Authority [2012] UKSC 22, [2012] 2 AC 471, para 10.
+Reduced to their essence, his submissions regarding international law are that: a) the application of TULCRA to dismissals of this nature would conflict with settled international law principles that one state does not legislate to affect the jure imperii activity of another; b) it would place the appellant in a unique position of potentially infringing United Kingdom law, by failing to consult, when the Crown in respect of British bases would have no such obligation, and when EU principles of non discrimination would mean that other member states would also have to be regarded as having no such obligation; it would in that respect infringe either EU law or general international legal principles regarding non discrimination.
+Jurisdiction is primarily territorial in both international and domestic law.
+As the Permanent Court of International Justice said in The Case of the SS Lotus (1927) PCIJ Series A No 10, pp 18 19, that: the first and foremost restriction imposed by international law upon a state is that failing the existence of a permissive rule to the contrary it may not exercise its power in any form in the territory of another state.
+In this sense jurisdiction is certainly territorial; it cannot be exercised by a state outside its territory except by virtue of a permissive rule derived from international custom or from a convention.
+It does not, however, follow that international law prohibits a state from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law.
+Such a view would only be tenable if international law contained a general prohibition to states to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed states to do so in certain specific cases.
+But this is certainly not the case under international law as it stands at present.
+Far from laying down a general prohibition to the effect that states may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every state remains free to adopt the principles which it regards as best and most suitable.
+The following overview appears in Brownlies Public International Law 8th ed (2012), (ed by James Crawford SC, FBA), Chapter 21, pp 456 457: The starting point in this part of the law is the presumption that jurisdiction (in all its forms) is territorial, and may not be exercised extra territorially without some specific basis in international law.
+However, the territorial theory has been refined in the light of experience and what amounts to extra territorial jurisdiction is to some extent a matter of appreciation.
+If there is a cardinal principle emerging, it is that of genuine connection between the subject matter of jurisdiction and the territorial base or reasonable interests of the state in question.
+In the present case, the United Kingdom was in my opinion legislating in TULCRA entirely consistently with these principles.
+TULCRA is expressly stated to extend to England, Wales and Scotland.
+Part IV Chapter II regulates the procedures for dismissal on the grounds of redundancy of employees at institutions in those territories.
+It requires consultation within the jurisdiction with employees who are and whose employment is within the jurisdiction.
+Merely because the appellant may have taken a decision at the highest level in Washington, which led to dismissals on grounds of redundancy at a base in England, does not mean that the United Kingdom was legislating extra territorially.
+It is in this sort of situation that a plea of state immunity may be most useful.
+Sir Daniel Bethlehem referred to the American legal position, in particular the American Law Institute Restatement (Third) of the Foreign Relations Law of the United States (published May 14, 1986) and the United States Supreme Court decision of F Hoffmann la Roche v Empagran SA (2004) 542 US 155).
+Section 402 of the Reinstatement indicates that, subject to section 403, a state has jurisdiction to prescribe law with respect to (a) conduct that, wholly or in substantial part, takes place within its territory; (b) the status of persons, or interests in things, present within its territory; (c) conduct outside its territory that has or is intended to have substantial effect within its territory.
+The qualification in section 403 is that, even when one of the bases for jurisdiction under section 402 is present, a state may not exercise jurisdiction to prescribe law with respect to a person or activity having connections with another state when the exercise of such jurisdiction is unreasonable, this to be determined by evaluating all relevant factors.
+The drafters seek to give this evaluation some bones by listing eight potentially relevant (but not exclusive) factors.
+Among them are (a) the extent to which the activity takes place within the territory, or has substantial, direct and foreseeable effect upon or in the territory and (c) the character of the activity to be regulated, the importance of regulation to the regulating state, the extent to which other states regulate such activities .
+The US Supreme Courts decision in Hoffmann la Roche illustrates the significance of the principles in the Restatement.
+The case concerned the ambit of the Sherman Act in relation to a price fixing conspiracy between foreign and domestic vitamin sellers allegedly raising prices both inside and outside the United States.
+The issue was whether the Sherman Act applied to purchases (described as foreign transactions) by foreign distributors for delivery by Hoffmann la Roche outside the United States.
+The Foreign Trade Antitrust Improvements Act of 1982 (FTAIA) provided that the Sherman Act shall not apply to conduct involving trade or commerce with foreign nations unless (1) such conduct has a direct, substantial, and reasonably foreseeable effect (A) on trade or commerce which is not trade or commerce with foreign nations [ie domestic trade or commerce] (15 USC section 6a).
+The words trade or commerce with foreign nations were by the court held to cover foreign transactions.
+But the Court of Appeals had held that the qualifying words (unless ) brought all transactions, foreign and domestic within the Sherman Act.
+The US Supreme Court disagreed, holding that so far as the complaint depended on an adverse foreign effect on prices independent of any adverse domestic effect, it lay outside the scope of the Sherman Act.
+Breyer JA, giving the judgment of the court, identified two main reasons, derived from comity and the statutory history, for concluding that the FTAIA did not bring independently caused foreign injury within the scope of the Sherman Act.
+In their light he rejected linguistic arguments to the contrary advanced by the complainants.
+As to the first reason, comity, he said, in Part IV of the judgment (with characteristic emphasis, as italicised): this court ordinarily construes ambiguous statutes to avoid unreasonable interference with the sovereign authority of other nations.
+This rule of construction reflects principles of customary international law law that (we must assume) Congress ordinarily seeks to follow.
+See Restatement (Third) of Foreign Relations Law of the United States sections 403(1), 403(2) (1986) (hereinafter Restatement) (limiting the unreasonable exercise of prescriptive jurisdiction with respect to a person or activity having connections with another state); Murray v Schooner Charming Betsy, 2 Cranch 64, 118 (1804) ([A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains); This rule of statutory construction cautions courts to assume that legislators take account of the legitimate sovereign interests of other nations when they write American laws.
+It thereby helps the potentially conflicting laws of different nations work together in harmonya harmony particularly needed in todays highly interdependent commercial world.
+No one denies that Americas antitrust laws, when applied to foreign conduct, can interfere with a foreign nations ability independently to regulate its own commercial affairs.
+But our courts have long held that application of our antitrust laws to foreign anticompetitive conduct is nonetheless reasonable, and hence consistent with principles of prescriptive comity, insofar as they reflect a legislative effort to redress domestic antitrust injury that foreign anticompetitive conduct has caused.
+But why is it reasonable to apply those laws to foreign conduct insofar as that conduct causes independent foreign harm and that foreign harm alone gives rise to the plaintiffs claim? Like the former case, application of those laws creates a serious risk of interference with a foreign nation's ability independently to regulate its own commercial affairs.
+But, unlike the former case, the justification for that interference seems insubstantial.
+See Restatement section 403(2) (determining reasonableness on basis of such factors as connections with regulating nation, harm to that nations interests, extent to which other nations regulate, and the potential for conflict).
+Why should American law supplant, for example, Canadas or Great Britains or Japans own determination about how best to protect Canadian or British or Japanese customers from anticompetitive conduct engaged in significant part by Canadian or British or Japanese or other foreign companies?
+The FTAIA was capable of interpretation in two senses.
+An interpretation which excluded from its grasp foreign transactions causing foreign damage was, for the reasons given in this passage, readily available and understandable.
+The present case presents a different picture.
+There is no lack of clarity in the wording of TULCRA.
+The base at RSA Hythe, the complainants, the contracts of employment and the dismissals for redundancy which were regulated (on the face of it) by TULCRA were and are all within the United Kingdom.
+I am ready to assume that the base was operated in the United Kingdom for strategic reasons, and it is common ground that the decision to close it was taken in the United States for strategic reasons.
+The appellants case is that there should be carved out of TULCRA, or any other relevant legislation, an exception for circumstances in which a foreign state takes a decision or commits an act of a jure imperii nature abroad which would otherwise lead to a person in the United Kingdom having a domestic right and remedy in respect of domestic employment or other domestic activity in the United Kingdom.
+The submission is far reaching.
+It would require substantial re formulation and expansion of the presumptive principles of construction referred to in the Restatement and in Hoffmann la Roche, and I am unable to accept it.
+The submission would amount, in effect, as Sir Daniel recognised, to reading domestic legislation as subject to an exception or as inapplicable, at least prima facie, in relation to a foreign state in any circumstances where the foreign state could rely on a plea of state immunity, to avoid the adjudicative processes of another state in which proceedings had been brought against it.
+I do not accept that there is any such principle.
+It would make quite largely otiose the procedures and time for a plea of state immunity.
+As Hazel Fox CMG QC and Philippa Webb observe in The Law of State Immunity 3rd ed (2013), p 20: Jurisdiction and immunity are two separate concepts.
+Jurisdiction relates to the power of a state to affect the rights of a person or persons by legislative, executive or judicial means, whereas immunity represents the independence and exemption from the jurisdiction or competence of the courts and tribunals of a foreign state and is an essential characteristic of a state.
+Logically the existence of jurisdiction precedes the question of immunity from such jurisdiction but the two are inextricably linked (see Chapter IV).
+In Chapter IV, p 82, the authors go on further to explain the relationship, in this passage: Immunity comports freedom or exemption from territorial jurisdiction.
+It bars the bringing of proceedings in the courts of the territorial state (the forum state) against another state.
+It says nothing about the underlying liability which the claimant alleges.
+Immunity does not confer impunity; the underlying accountability or substantive responsibility for the matters alleged in a claim remain; immunity merely bars the adjudication of that claim in a particular court.
+As a matter of logic, the determination of jurisdiction precedes the consideration of immunity.
+A states latitude to assert immunity in the face of a claim is different from the inapplicability of the law, by way of exemption or otherwise, to the impugned conduct of the foreign state in the first place.
+Immunity operates as a bar to the adjudicative jurisdiction of the courts of the forum state.
+It does not address the legislative or prescriptive jurisdiction of that state.
+A claim of immunity thus at some level acknowledges the forum states legislative competence and the putative application of the domestic law in question to the foreign state but for the assertion of immunity.
+In its written case, para 116, the appellant put the same point in a way
+met with the advocates to the courts assent:
+Sir Daniel Bethlehem sought to emphasise the importance for a foreign state such as the appellant of recognising in TULCRA an implied exemption for a decision to dismiss for redundancy taken on jure imperii grounds.
+The appellant would wish to comply with domestic law, and the ability to plead state immunity in any proceedings would not alter the fact that, without such an exemption, it would be and have been in breach of domestic law.
+That is true, but carried to its logical conclusion it would mean that all legislation should, however clear in scope, be read as inapplicable to a foreign state in any case where the state could plead state immunity.
+That would elide two distinct principles, and, as noted already, very largely make redundant a plea of state immunity at least in respect of any statutory claim.
+On Sir Daniels argument, the legislation relating to unfair dismissal on which the claimant relied in Sengupta v Republic of India [1983] ICR 221 would presumably also have to be read as containing an implied exception for foreign states in jure imperii contexts, as would perhaps also the principles of common law negligence on which the claimant relied in Littrell v United States of America (No 2) [1995] 1 WLR 82.
+Sir Daniel Bethlehems submissions on discrimination start with the exclusion from the scope of Part IV Chapter II of TULCRA of Crown and police service employees.
+The exclusion is specific, and that itself makes it difficult to argue for an equivalent implied exclusion in respect of foreign state employees.
+In any event, there are circumstances in which, even on Sir Daniels case, it would not be inappropriate for Part IV Chapter II to apply to a foreign government, for example in the (admittedly perhaps rare) case where a foreign state was itself responsible for a commercial activity in the United Kingdom, in respect of which it wished to declare all or some of its employees redundant.
+Be that as it may be, Sir Daniel argues that non discrimination is a general principle of international law.
+It was in terms accepted as such by the Court of Appeal in Benkharbouche v Embassy of the Republic of Sudan [2015] EWCA Civ 33, [2015] 3 WLR 301, para 61, but the context there was a claim by an individual foreign employee, asserting that section 4 of the State Immunity Act was contrary to articles 6 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and/or European Union law. (This was because it only lifted a foreign states immunity in favour employees with contracts made in the United Kingdom or work to be wholly or partly performed there if such employees were nationals of or habitually resident in the United Kingdom.) A state cannot take advantage of articles 6 and 14 of the European Convention.
+Articles 1 and 2 of the Universal Declaration of Human Rights, article 26 of the International Covenant on Civil and Political Rights and article 14 of the European Convention, cited by the Court of Appeal, are likewise all provisions by states in favour of persons, not states.
+I will return to articles 20 and 21 of the Charter of Fundamental Rights of the European Union, which the Court of Appeal also cited.
+The position as between states is expressed in Oppenheims International Law 9th ed (1992) as follows, at para 114: Although states are equal as legal persons in international law, this equality does not require that in all matters a state must treat all other states in the same way.
+There is in customary international law no clearly established general obligation on a state not to differentiate between other states in the treatment it accords to them.
+Nevertheless, discrimination is widely regarded as undesirable, and in some particular respects a rule of non discrimination may exist, within limits which are not clear.
+Oppenheim goes on to discuss some possibilities, eg multi lateral treaties, none of which is relevant here.
+To give teeth to his submissions, Sir Daniel Bethlehem invokes European Union law, to which the Court of Appeal in Benkharbouche also referred.
+Article 18 TFEU provides: Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
+The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt rules designed to prohibit such discrimination.
+A provision in, effectively, the same terms as the first sentence is contained in the Charter of Fundamental Rights, article 21(2).
+On the basis of these provisions, Sir Daniel argues that United Kingdom courts would have to recognise other member states of the European Union as enjoying like exemptions from TULCRA to those TULCRA provides for UK Crown employees.
+This would in principle leave non EU states out on a limb, but the only non EU state actually shown to be affected would in practice be or be likely to be the appellant.
+That would, Sir Daniel submits, be absurd and should itself lead to an implication that foreign states should enjoy the like immunity.
+In any event, he submits, the principle of non discrimination operates under European Union law horizontally to protect the appellant, even though it is neither a European citizen or an EU member state; in this connection, Sir Daniel invokes the Court of Justices well known if controversial jurisprudence in Mangold v Helm (Case C 144/04) [2006] All ER (EC) 383 and Kckdeveci v Swedex GmbH & Co KG (Case C 555/07) [2010] All ER (EC) 867, both in fact cases of age discrimination.
+Whether article 18 TFEU and/or article 21(2) of the Charter of Fundamental Rights apply in favour of member states can be left open.
+Whether, if they do, it would be open to a member state to rely on them horizontally as against a complainant like Mrs Nolan can also be left open.
+It is not clear in European law how far and when the principles in Mangold and Kckdeveci apply in cases not involving age discrimination.
+The court considered such an issue in Association de mdiation sociale v Union locale des Syndicates CGT (Case C 176/12) [2014] ICR 411.
+The domestic Labour Code excluded from calculation holders of an accompanied employment contract (young persons being directed towards more stable employment or social activities), of whom the Association de mdiation sociale (AMS), a private non profit making organisation, employed well over 100.
+The result of the exclusion was that AMS counted as having only eight employees under the Labour Code, and so fell domestically below a threshold of 50 (based on the Directive 2002/14/EC) which would otherwise have triggered obligations on its part to inform and consult.
+The court held that the Labour Code by excluding accompanied employees from the calculation of numbers was in breach of the Directive.
+Article 27 of the Charter requires that Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Union law and national laws and practices.
+The question thus arose whether article 27 of the Charter, read with the Directive, could be relied on horizontally in proceedings between AMS and the Union locale des Syndicates.
+Differing on this point from Advocate General P Cruz Villaln, the Court of Justice held that it could not, saying that it was clear from the wording of article 27 of the Charter that, for this article to be fully effective, it must be given more specific expression in European Union or national law (para 45).
+This was so although the Labour Code must, it appears, have contained specific provisions regarding information and consultation for those employers who, under its own defective method of calculation, did have 50 or more employees.
+So it is at least open to question whether article 18 TFEU or article 21(2) of the Charter, read with the provisions of TULCRA, would necessarily have direct horizontal effect in favour of another EU member state.
+There are however to my mind two fundamental flaws in Sir Daniels submissions at this point.
+The first is that articles 18 and 21(2) apply expressly only within the scope of application of European law, or, as it was paraphrased in Association de mdiation sociale, para 42, in situations governed by European law.
+The same point was made by the Court of Justice as long ago as 1974 in Walrave v Association Union Cycliste Internationale (Case C 36/74) [1974] ECR 1405.
+In the present case, the Court of Justice declined to rule on the interpretation of Directive 98/59/EC for the very reason that, to the extent that TULCRA covers workers employed by public administrative bodies or by public law establishments, it goes beyond European Union law into an area to which the EU legislature states unequivocally that the measure which it has adopted does not apply, and in which the objective [of] seeking uniform interpretation and application of the rules of law has been renounced: para 55.
+Since the issue in the present case arises in precisely that area, it is not possible to conclude that the appellant or indeed any EU member state, let alone any non member state, could insist on European Union law as giving it any horizontal or other entitlement.
+The second flaw is that I do not regard a non member state as being within the protection of articles 18 and 21(2) in any circumstances.
+In Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11, [2011] 1 WLR 783, para 83, Lady Hale said of the then equivalent article: This is not a general prohibition of discrimination on grounds of nationality.
+Only the nationals of member states are protected.
+Discrimination against third country nationals is not prohibited.
+Indeed it is positively expected.
+The underlying purpose is to promote the objects of the Union and in particular the free movement of workers between the member states and the free establishment of businesses within them.
+The Court of Justices case law is to like effect: Vatsouras v Arbeitsgemeinschaft (AGRE) Nrnberg 900 (Joined Cases C 22/08 and C 23/08) [2009] ECR I 4585, [2009] ALL ER (EC) 747, para 52 and Martinez Sala v Freistaat Bayern (Case C 85/96) [1998] ECR I 2691, para 62.
+The Court of Appeal recently reached the same conclusion in Sanneh v Secretary of State for Work and Pensions [2015] EWCA Civ 49, para 106.
+The freedom of this countrys universities to charge unrestricted tuition fees to non EU citizens, while having in this respect to assimilate citizens of other EU countries with British citizens, is an example of the impact of this principle.
+For these reasons, I am unable to accept the appellants second point on construction any more than its first.
+The third point the vires of the 1995 Regulations
+I come to the third point, the appellants submission that the 1995 Regulations were ultra vires section 2 of the European Communities Act 1972.
+When providing workers without trade union representation with the protection which the Court of Justice had in (Case C 383/92) held to be required, the Regulations did not confine themselves to the sphere of EU law, confirmed by the court in the present case.
+They went further by conferring extended protection on workers without trade union representation employed by public administrative bodies or public law establishments.
+In that respect, the appellant submits, they went beyond any power conferred by section 2.
+Section 2 of the 1972 Act (as amended by sections 27 and 33 of the Legislative and Regulatory Reform Act 2006 and sections 3 and 8 of and Part I of the Schedule to the European Union (Amendment) Act 2008) reads: General implementation of Treaties (1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression enforceable EU right and similar expressions shall be read as referring to one to which this subsection applies. (2) Subject to Schedule 2 to this Act, at any time after its passing Her Majesty may by Order in Council, and any designated Minister or department may by order, rules, regulations or scheme, make provision (a) for the purpose of implementing any EU obligation of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or (b) for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above; and in the exercise of any statutory power or duty, including any power to give directions or to legislate by means of orders, rules, regulations or other subordinate instrument, the person entrusted with the power or duty may have regard to the objects of the EU and to any such obligation or rights as aforesaid. (3) (4) The provision that may be made under subsection (2) above includes, subject to Schedule 2 to this Act, any such provision (of any such extent) as might be made by Act of Parliament, and any enactment passed or to be passed, other than one contained in this part of this Act, shall be construed and have effect subject to the foregoing provisions of this section; but, except as may be provided by any Act passed after this Act, Schedule 2 shall have effect in connection with the powers conferred by this and the following sections of this Act to make Orders in Council or orders, rules, regulations or schemes.
+Schedule 2 paragraph 1 (as amended by section 32 of the Criminal Law Act 1977 and sections 38 and 46 of the Criminal Justice Act 1982) contains the following restriction on the powers conferred by section 2(2): The powers conferred by section 2(2) of this Act to make provision for the purposes mentioned in section 2(2)(a) and (b) shall not include power to make any provision imposing or increasing (a) taxation; or to make any provision taking effect from a date (b) earlier than that of the making of the instrument containing the provision; or (c) to confer any power to legislate by means of orders, rules, regulations or other subordinate instrument, other than rules of procedure for any court or tribunal; or (d) to create any new criminal offence punishable with imprisonment for more than two years or punishable on summary conviction with imprisonment for more than three months or with a fine of more than level 5 on the standard scale (if not calculated on a daily basis) or with a fine of more than 100 a day.
+Section 2 of the 1972 Act recognises the different types of EU legislative measure.
+Article 288 TFEU states a well known trifurcation: A Regulation shall have general application.
+It shall be binding in its entirety and directly applicable in all member states.
+A Directive shall be binding, as to the result to be achieved, upon each member state to which it is addressed, but shall leave to the national authorities the choice of form and methods.
+A decision shall be binding in its entirety.
+A decision which specifies those to whom it is addressed shall be binding only on them.
+Section 2(1) gives the force of law in the United Kingdom to all the rights, etc and remedies and procedures to which it refers, which are in accordance with the Treaties without further enactment to be given legal effect or used in the United Kingdom.
+It is the means by which Regulations have effect.
+Section 2(2) concerns obligations of the United Kingdom to be implemented, or rights of the United Kingdom to be enjoyed, under or by virtue of the Treaties.
+A right or obligation under a Directive is the classic instance.
+As article 288 indicates, Directives are not as specific as Regulations in their impact or, often, in their terms.
+Member states have a degree of latitude in their implementation, provided they achieve the intended result.
+Paragraph (a) of section 2(2) enables provision to be made by order in council or ministerial or departmental order, rule, regulation or scheme for the purpose of implementing any such obligation, or enabling any such right to be exercised.
+Paragraph (b) enables provision to be made for dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time of subsection (1).
+The ambit of section 2(2) has been considered in a number of cases.
+The leading authority is Oakley Inc v Animal Ltd [2005] EWCA Civ 1191, [2006] Ch 337.
+Since then section 2(2) has been considered by Moses LJ in R (Cukorova Finance International Ltd) v HM Treasury [2008] EWHC 2567 (Admin), [2009] EuLR 317, by Lord Hope in Risk Management [2011] 2 AC 34 (para 22 above), by the Employment Appeal Tribunal in Pothecary Witham Weld v Bullimore [2010] ICR 1008 and by Floyd J, who identified as many as 14 relevant principles in ITV Broadcasting Ltd v TV Catchup Ltd (No 2) [2011] EWHC 1874 (Pat), [2011] FSR 40.
+In Oakley, Directive 98/71/EC on the legal protection of designs required member states to approximate their legislation, but provided an option permitting them to derogate and retain in force existing legislation for registered designs.
+The option, found in article 11(8) of the Directive, read: 8.
+Any member state may provide that, by way of derogation from paragraphs 1 to 7, the grounds for refusal of registration or for invalidation in force in that state prior to the date on which the provisions necessary to comply with this Directive enter into force shall apply to design applications which have been made prior to that date and to resulting registrations.
+In issuing the Registered Designs Regulations 2001 (SI 2001/3949), the Secretary of State made use of this option.
+By regulation 12 he retained in force the Registered Designs Act 1949, as amended in 1988, in relation to designs already registered, so making use of this option.
+The Court of Appeal rejected the submission that regulation 12 required primary legislation.
+All three members of the court considered that regulation 12 could be regarded as being within section 2(2)(a) of the 1972 Act, as having been for the purpose of implementing an EU obligation or enabling one to be implemented (para 29, per Waller LJ, para 46 per May LJ and paras 64 67 per Jacob LJ).
+All three members of the court also went on to express views on the scope of section 2(2)(b).
+Waller LJ considered that the words used in section 2(2)(b) must take their context from the primary purpose of section 2, that being the bringing into force under section 2 of the laws, which under the Treaties the United Kingdom has agreed to make part of its laws; para 39.
+On that basis he added this in the same paragraph: section 2(2)(b), from its position in section 2, from the fact that it adds something to both subsections (1) and (2), and from its very wording is a subsection to enable further measures to be taken which naturally arise from or closely relate to the primary purpose being achieved.
+I accept that I will be accused of adding the words naturally and closely, but I believe that describes the context which provides the meaning of the words.
+May LJ said (para 47): I do not consider that to hold that the making of these transitional provisions came within section 2(2)(a) has the effect of making section 2(2)(b) devoid of content.
+There is a distinction between providing something which, although it is a choice, is a choice which the implementation of the Directive requires you to make, and one which is not so required, but which has the effect of tidying things up or making closely related original choices which the Directive does not necessarily require.
+Section 2(2)(b) is confined by its words and context.
+Redefinition in the abstract is to be avoided.
+Jacob LJ addressed the topic in some detail.
+He had no doubt that section 2(2)(a) covered the case where a Directive contains explicit alternatives and the implementing statutory instrument merely selects one of these (para 73).
+Questioning whether it also covers the supply of detail which Directives frequently leave to member states to spell out, he observed that, in his view, the wider section 2(2)(a), the narrower section 2(2)(b) is likely to be (para 74).
+In paras 79 80 he expressed his provisional views: 79.
+My own view, provisional though it must be in the absence of any specific context relevant to this case, is this: that section 2(2)(a) covers all forms of implementation whether by way of choice of explicit options or by way of supply of detail.
+Both of these are for the purpose of implementing or enabling any such obligation to be implemented.
+Supplying detail required by a Directive is just that. 80.
+So section 2(2)(b) indeed adds more .
+How much more must depend on the particular circumstances of the case the statutory language is the guide.
+It says for the purpose of dealing with matters arising out of or related to.
+Whether a particular statutory instrument falls within those words must depend on what it purports to do and the overall context.
+One cannot put a gloss on the meaning.
+If Otton LJ [in R v Secretary of State for Trade and Industry, Ex p UNISON [1996] ICR 1003] was adding a gloss distinct, separate or divorced from it then I do not agree with that gloss.
+You just have to apply the statutory language to the case concerned.
+And in doing so you bear in mind that the purpose of the power given by the section is European the article10 purpose.
+Whether or not Otton LJ was right in the circumstances of, I do not decide.
+It would not be right to do so in the absence of the affected parties.
+The reference to Otton LJs words was to a sentence in which Otton LJ said that he was satisfied that the provision made was related to a Community obligation, and not distinct, separate, or divorced from it (R v Secretary of State for Trade and Industry, Ex p UNISON [1996] ICR 1003, 1014G H).
+Article 10 of the then Treaty establishing the European Community read: Member states shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community.
+Some general observations are possible, arising from these passages.
+First, so far as possible, it is clearly desirable to avoid paraphrase, though almost impossible to do so completely, if any greater light is to be shed on the scope of their application.
+Second, as Waller LJ (and also May LJ) indicated, words such as those used in section 2(2) must be seen in the context of the primary purpose of section 2, that being the bringing into force under section 2 of the laws, which under the Treaties the United Kingdom has agreed to make part of its laws.
+Third, that is the context in which Parliament was prepared to delegate law making ability to the executive because the focus of section 2(2) is on obligations to the implementation of which the United Kingdom is already committed (and rights to which it is already entitled) at the European level by virtue of its EU membership.
+Parliament will itself have had prior opportunities for scrutiny of, and input into the content of, the European measures giving rise to such obligations and rights, through in particular Select Committee procedures, at the stage when such measures were being developed and proposed by the European Commission and considered in Europe by member states and the European Parliament.
+Fourth, section 2(2) authorises the making of provisions for two differently expressed purposes.
+In the case of paragraph (a), the purpose expressed is implementing or enabling the implementation of any EU obligation (or the enabling the exercise of any EU right enjoyed by the United Kingdom).
+In the case of paragraph (b), it is dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of section 2(1).
+It is not in my view appropriate to get too involved in a linguistic debate about whether these paragraphs should be read entirely disjunctively or whether there may be some overlap.
+But Jacob LJ was, I think, right in saying that the wider section 2(2)(a), the narrower section 2(2)(b) is likely to be that is so, because the language of paragraph (b) introduces bottom line limitations of the power it confers.
+What can in my view be said, from the wording and positioning of these two paragraphs, is that paragraph (a) is the main vehicle for implementation of EU obligations and rights which are not directly enforceable.
+Paragraph (b) goes further, in authorising provision for different purposes, but those purposes are limited by reference to the United Kingdoms EU obligations or rights (or the coming into force, or operation, of section 2(1)).
+The words arising out of limit the power to provisions dealing with matters consequential upon an EU obligation or right (or the coming into force, etc, of section 2(1)).
+The further phrase related to any such obligation or rights, must, unless redundant, go somewhat further.
+But the relationship required must exist objectively; and the positioning of the phrase and its conjunction with the earlier wording of section 2(1) suggest to me, as they did to Waller and May LJJ, that by speaking of a relationship the legislature envisaged a close link to the relevant obligation or right.
+A relationship cannot on any view arise from or be created by simple ministerial decision that it would be good policy or convenient to have domestically a scheme paralleling or extending EU obligations in a field outside any covered by the EU obligations.
+That would be to treat paragraph (b) as authorising a purpose to implement policy decisions not involving the implementation of, not arising out of and unrelated to any EU obligation.
+A fifth and final point is that it is, in the light of the above, possible to describe section 2(2) as both wide and confined in scope.
+It is wide because it authorises almost every conceivable provision required to fulfil the United Kingdoms obligations under article 4.3 TEU (or to give effect to any EU right) subject only to the restrictions in Schedule 2.
+It is confined because any such provision must be for the purpose of implementing, or dealing with a matter arising from or related to, such an obligation or right.
+Some conclusions can fairly readily be drawn.
+Consistently with a view taken, I understand, by all members of the court in Oakley, it is clear, that, where a Directive is in general terms leaving member states freedom to decide on the precise means for its implementation, provisions which the United Kingdom makes within the scope of such freedom will on the face of it fall within section 2(2)(a), as being for the purpose of implementing or enabling the implementation of the Directive.
+Second, where a Directive confers a choice of specific alternatives, as Directive 98/59/EC did in article 1(1)(a) (see para 7 above) a provision selecting one or other alternative will also fall within section 2(2)(a).
+Where a Directive gives member states a specific option to derogate from its provisions in a particular respect in Oakley as regards design applications made prior to the date of domestic implementation of the Directive and as regards resulting registrations then I again agree with the court in Oakley that the exercise of this option can be regarded as falling within section 2(2)(a), and, further, that if that were not so, then it would, in any event, be related to the implementation of the United Kingdoms EU obligation within section 2(2)(b).
+At the other end of a spectrum is a situation such as Lord Hope considered in Risk Management, para 24 (para 22 above).
+That is where a Directive, such as Directive 2004/18/EC in that case, (i) addresses an internal market competition issue, by introducing procedures for the award of public works, supply and service contracts, but does not cover a situation where (ii) public authorities contract inter se, or where (iii) a local authority exercises over the other contracting party a control which is similar to that which it exercises over its own departments and, at the same time, that person carries out the essential part of its activities with the controlling local authority or authorities: see Teckal (Case C 107/98) [1999] ECR I 8121, para 50.
+In that context, Lord Hope, with whose judgment three other members of the court agreed, considered that it would not be a permitted use of the power conferred by section 2(2) to apply the public procurement rules to relationships [such as those in (ii) and (iii)] that fell outside the regime provided for by the Directive: para 22 above.
+In agreement with Lord Hope, I consider that, where a Directive is based on an internal market competence and as a result limited in impact to internal market situations, its domestic extension to situations outside the internal market cannot be regarded as being within either section 2(2)(a) or (b) of the 1972 Act.
+This is so whether it is so limited by implication or expressly.
+More difficult are intermediate situations where a Directive is limited to, or specifically excludes, a particular area of the internal market.
+An example of a Directive limited to a particular area of the internal market is Directive 2002/47/EC which was in issue in Cukurova [2009] EuLR 317.
+Directive 98/59/EC in issue in the present case is an example of a Directive with both limitations and specific exclusions which appear to fall within the internal market: It is limited by article 1(1)(a) to collective redundancies.
+It excludes in article 1(2)(a) limited period contracts, which might affect the functioning of the internal market competition.
+I say nothing on the question whether the exclusion in article 1(2)(c) of the crews of seagoing vessels operates in an area which might affect the internal market or was because this was seen as a situation, like that covered by article 1(2)(b), where the internal market was not affected.
+In my view, provisions extending an EU regime domestically into areas not covered by or specifically excluded from the EU regime contemplated by a Directive may well fall outside both paragraphs of section 2(2).
+Each case would have to be considered on its own merits.
+Some adjustments to situations in which a Directive operates may be regarded as necessary or appropriate for the purpose of implementing or enabling the implementation of a Directive, or as being related to the relevant EU obligation in the sense already discussed.
+Pothecary [2010] ICR 1008 is an example of a case where the Secretary of State used section 2(2)(b) to provide for a reverse burden of proof in section 63A of the Sex Discrimination Act 1975 (as inserted by regulation 5 of the Indirect Discrimination and Burden of Proof) Regulations 2001 (SI 2001/2660) in cases of alleged victimisation.
+There was no obligation under European law to have a reverse burden in such cases.
+There was under the Burden of Proof Directive 97/80/EC an obligation to have a reverse burden in cases of alleged unequal treatment, but the Employment Appeal Tribunal concluded that the right not to be victimised did not form part of the principle of equal treatment, but was an ancillary right accorded by EU law to render that principle properly enforceable.
+On that basis, it held, unsurprisingly, that introducing a reverse burden in respect of a right which European law treated as ancillary to its prohibition of discrimination was dealing with a matter related to an EU obligation, within section 2(2)(b).
+In Cukurova Directive 2002/47/EC was expressly limited to transactions between certain institutions, but the Financial Collateral Arrangements (No 2) Regulations 2003 (SI 2003/3226) issued by HM Treasury implementing it extended the range of the regime to cover other institutions.
+Moses LJ was concerned with a question whether Cukurova should be allowed an extension of time within which to challenge the vires of the Regulations.
+Ultimately, all he did was express such considerable doubts about Cukurovas prospects of success in its challenge as to lead him to a conclusion that justice did not demand an extension of time.
+Nonetheless, it is worth looking at the case more closely, because in my view Moses LJ greatly underestimated the force of Cukurovas challenge.
+Article 1(1) of Directive 2002/47/EC stated that it lays down a Community regime applicable to financial collateral arrangements [defined by article 2.1(a) as meaning a title transfer financial or a security financial collateral arrangement] which satisfy the requirements set out in paragraphs 2 and 5 and to financial collateral in accordance with the conditions set out in paragraphs 4 and 5.
+Paragraph 2 stated that The collateral taker and the collateral provider must each belong to one of the following categories.
+These included a wide range of (a) public authorities or bodies, (b) central or development banks, (c) financial institutions subject to prudential supervisions and (d) central counterparties, settlement agents or clearing houses as well as (e) a person other than a natural person, including unincorporated firms and partnerships, provided that the other party is an institution as defined in points (a) to (d).
+By these categories, the Directive notably did not cover hedge funds.
+Paragraph 3 permitted member states to exclude from the scope of this Directive financial collateral arrangements where one of the parties is a person mentioned in paragraph 2(e).
+Recital 22 stated the objective of the Directive to be to create a minimum regime relating to the use of financial collateral, this being an objective which, it went on, cannot be sufficiently achieved by the member states and can therefore be better achieved at Community level .
+In place of the carefully delineated categories of institution and concern covered by the Directive, the 2003 Regulations put in place a regime covering title transfer financial collateral arrangements and security financial collateral arrangements where the collateral provider and the collateral taker are both non natural persons: regulation 3.
+I find it difficult to see how this could be regarded as having been for the purpose of implementing or enabling the implementation of the EU Directive.
+Equally, the extension did not arise out of the obligations in the Directive and was not related to them.
+It was on its face the product of a decision by HM Treasury that it would be good policy domestically to have a more extensive regime operate within the United Kingdom.
+That is something which was of course open to the United Kingdom under European law, since the Directive was a measure of minimum harmonisation.
+But it was under the United Kingdom constitution and the 1972 Act a matter which was not for the executive to decide, but for Parliament to consider and, it if thought fit, to agree as a matter of primary legislation.
+Returning to the present case, it falls in my view even more clearly within the category which Lord Hope was considering in Risk Management.
+It also concerns a Directive issued by the European legislature under its internal market competence, which in the present case specifically excludes by article 1(2)(b) situations outside that competence.
+The express liberty in article 5 for member states to make provisions more favourable to workers does not in my view lead or point to a contrary view.
+It cannot have been directed to matters which would be outside the European Unions internal market competence.
+Even in relation to matters within the Unions internal market competence, an article of this nature does no more on its face than confirm that the Directive is a minimum harmonisation measure, which leaves member states free to introduce more favourable provisions as a matter of domestic law.
+This does not mean that such provisions are necessarily to be regarded as dealing with matters related to any EU obligation or rights.
+It follows that, had the provisions of TULCRA in its unamended form been the product of subordinate legislation under section 2(2) of the 1972, they would, on Lord Hopes analysis, have been ultra vires at least in so far as they purported to extend the required procedure for dismissals involving redundancies to situations falling within article 1(2)(b) of Directive 98/59/EC.
+However, TULCRA in its unamended form was actually a piece of primary legislation.
+So far as Parliament chose by TULCRA in its unamended form to extend the required procedure for dismissals involving redundancies, it was fully entitled to do so.
+Parliament has no need to show any particular competence base for primary legislation.
+It can legislate at will and at the same time achieve both European Union aims and domestic aims, as long as the latter are not positively inconsistent with the former.
+But TULCRA in its unamended form was confined to situations where the relevant employees had trade union representation.
+When the executive chose to rectify this by using section 2(2) of the 1972 Act to cover situations where there was no trade union representation, it did so across the whole width of the previous legislation so as to affect not only situations within the internal market scope of Directive 98/59/EC, but also the domestic situations to which Parliament had also extended the required procedure for dismissals.
+If Lord Hopes analysis is correct, does this mean that the amendments to TULCRA by the 1995 Regulations must to that extent be regarded as ultra vires?
+I have found this a difficult and borderline question to answer.
+Ultimately, I have come to the conclusion that it can and should be answered in the negative.
+TULCRA in its unamended form represented a unified domestic regime.
+The Court of Justice in 1994 identified a flaw in the protection provided, in that it did not cater for non trade union situations.
+It is entirely unsurprising that the 1995 Regulations did not distinguish between parts of TULCRA which were and were not within the internal market competence or within article 1(2)(b) of the Directive.
+I think that, in these unusual circumstances, Parliament can, by enacting TULCRA in its unamended form, be regarded as having created, for the future domestic purposes of the 1972 Act, a relationship between the EU obligation (which it was a primary object of Part IV Chapter II of TULCRA in its unamended form to implement) and the categories of public employment falling within article 1(2)(b) of Directive 98/59/EC (which Parliament decided without any EU obligation to do so to cover by TULCRA in its unamended form).
+That relationship having been established by TULCRA in its unamended form, it seems to me that the executive was entitled to take it into account and to continue it by and in the 1995 Regulations.
+Conclusion
+For all these reasons, I would dismiss the appellants appeal on all three points, and affirm the judgments of the courts below.
+The case should as a result be remitted to the Court of Appeal for determination, so far as necessary, of the UK Coal/Fujitsu issue referred to in paras 3 and 10 11 of this judgment.
+LORD CARNWATH: (dissenting)
+Overview
+This case has an unfortunate procedural background, which has been described by Lord Mance.
+Among other grounds raised by the appellants (which in agreement with my colleagues I would dismiss), it raises two difficult issues at the interface between European and domestic law: first, the extent of the power conferred by section 2(2)(b) of the European Communities Act 1972 to legislate in the UK by statutory instrument on matters arising out of or related to obligations under European law; secondly, the approach of the domestic court to an issue of European law (the Fujitsu issue see below) which arises under a UK statute modelled on a European Directive, but which has been held to be outside the competence of the European court.
+As will be seen, the two are in my view linked.
+Unfortunately, only the first is before this court on the present appeal.
+The second will have to be determined by the Court of Appeal if the present appeal fails, and may return here at a later date.
+There is the further difficulty that neither of the parties to the appeal has more than a limited interest in the resolution of either issue as a matter of law.
+The United States of America, as appellant, has no direct interest in the resolution of issues of English or European law.
+It is only before the court because it failed at an early stage (for understandable reasons at the time) to claim sovereign state immunity. (It is common ground that if a claim to state immunity had been made at the outset it would have succeeded.) Mrs Nolan, the nominal respondent, has not contested the appeal, either in the Court of Appeal or in this court.
+The UK government, which might be thought to have a substantial interest in both issues has chosen not to intervene, though informed of the appeal.
+In these unusual circumstances we are more than usually grateful for the assistance of Mr Beloff QC and Miss Wilkinson as advocates to the court.
+However, it is no reflection on them that we have been unable to explore in any detail the wider implications of this case for the transposition of European law in this country more generally.
+For this reason, had my colleagues agreed with my firm provisional view that the appeal should be allowed on this issue, I would have been reluctant to reach a final conclusion without allowing the UK government a further opportunity to submit representations.
+The conclusions set out below are to that extent provisional.
+I adopt gratefully Lord Mances exposition of the facts and the relevant statutory provisions.
+Procedural history
+Lord Mance has summarised the procedural history, but some expansion may be helpful in setting the scene for discussion of the issue on which we are divided.
+As he has noted, an important event was the decision of the Employment Appeal Tribunal, in UK Coal Mining Ltd v National Union of Mineworkers [2008] ICR 163), given in September 2007.
+To explain its importance I can refer to Underhill LJs summary [2014] ICR 685, para 9: The trend of English authority until comparatively recently was to the effect that the collective redundancy provisions, even when read with the Directive, did not oblige an employer to consult about, or therefore disclose the reasons for, the underlying business decision which gave rise to a proposed collective redundancy the paradigm case being the closure of a workplace but only about the consequences of that decision.
+However, the decision of the ECJ in Junk v Khnel (Case C 188/03) [2005] ECR I 885, raised a serious question whether that approach was compatible with EU law.
+In UK Coal Mining , the Employment Appeal Tribunal (Elias J, President, presiding) declined explicitly to depart from the established approach (while expressing some reservations about it); but it nevertheless held that in a case where a decision to close a workplace and the consequent decision to make redundancies were inextricably interlinked the obligation to consult about the reasons for the latter necessarily involved an obligation to consult about the reasons for the former and thus required the employer to initiate consultations prior to the closure decision.
+The CJEU revisited this issue in Akavan Erityisalojen Keskusliitto (AEK) ry v Fujitsu Siemens Computers Oy (Case C 44/08) [2010] ICR 444; [2009] ECR I 8163 (the Fujitsu decision); but unfortunately the effect of its reasoning is, to put it no higher, not entirely clear.
+As Underhill LJ explained (para 10), this change of understanding had important implications for the present case, in particular in the context of the USAs failure to rely before the tribunal on sovereign immunity: On the approach which it had initially taken, which involved acceptance of an obligation to consult only about the consequences for employees of the closure of the base, there had been no need for the USA to take any point on its status as a sovereign state.
+But the approach espoused in the UK Coal case was unacceptable to it: it did not believe that it should or could be under any legal obligation to consult with employees about a decision to close a military base, which is an act done jure imperii.
+It was not until the remedy hearing that the USA sought for the first time to invoke state immunity; but the tribunal held that it had already submitted to the jurisdiction.
+That conclusion is not now in issue.
+Before the EAT Mr John Cavanagh QC, who represented the USA, argued, as he has before us, that as a matter of construction, and in order to avoid absurdity, section 188 should be read as excluding any obligation by a sovereign state employer to consult about a decision made jure imperii.
+That submission was rejected by both the EAT and the Court of Appeal.
+In the Court of Appeal he further submitted that in the light of the Fujitsu decision, the reasoning in UK Coal [2008] ICR 163 should not be supported, with the consequence that consultation on the business decision to close the base had not been required.
+In the course of a detailed review of the reasoning of the Advocate General and the CJEU in the Fujitsu case, Rimer LJ (giving the judgment of the court) [2010] EWCA Civ 1223 sought an answer to what he identified as the critical question: does the ECJ explain whether the consultation obligation arises (i) when the employer is proposing, but has not yet made, a strategic business or operational decision that will foreseeably or inevitably lead to collective redundancies; or (ii) only when that decision has actually been made and he is then proposing consequential redundancies? (para 57) He inclined to the view that the Advocate General had favoured option (ii) (para 53).
+But he was unwilling to venture a concluded view on the position of the court, which he considered unclear (para 59), and which could be only resolved by the CJEU itself.
+Notwithstanding the USAs express unwillingness to support a reference, he saw it as important not just to the disposition of this litigation but also to industrial practice generally (para 62).
+Before the CJEU, as Lord Mance has noted, the case took an unexpected turn.
+Prompted by observations of the Commission, the court invited submissions on whether, having regard to the exclusion for public administrative bodies in article 1(2)(b), the dismissal was outside the scope of the Directive, with the result that the court would have no jurisdiction to decide the question.
+Its answer (in its judgment of 18 October 2012, (Case C 583/10), [2013] ICR 193) was no (for reasons to which I shall return below).
+Accordingly, when the appeal came back to the Court of Appeal, the issue had to be considered as one of domestic law only.
+At the second Court of Appeal hearing, the primary submission for the USA was that, in order to achieve conformity with the Directive, words should be read into section 188 to exclude its operation to a foreign state engaged in the exercise of public powers.
+This was rejected by Underhill LJ (with whom the other members of the court agreed).
+The draftsman had made a deliberate decision not to extend the exclusion to all public administrative bodies.
+This was unsurprising, given that the concept of a special employment regime for public employees recognised in some civil law countries has no equivalent in the common law, and it made sense for Parliament to have settled for a touchstone for exclusion which used common law concepts and would be (comparatively) easy to apply in the United Kingdom.
+He added that the Labour Government in 1975 may have had policy reasons to extend the collective redundancy provisions to public administrative bodies, such as local authorities, given the influence at the time of public sector trade unions (para 24).
+Having rejected the argument that amendments made under the European Communities Act 1972 had been outside the powers conferred by the Act, he concluded that there would need to be a further hearing to determine the Fujitsu issue.
+It was regrettable but unavoidable that an issue which will in almost all other cases albeit not in this depend on EU law will have to be decided without the guidance of the CJEU (para 33) It was further ordered that in the event of an appeal to the Supreme Court, the further hearing on the Fujitsu issue should await the outcome of the appeal.
+The reasoning of the CJEU
+The European court held that the armed forces fell clearly within the exception for public administration or equivalent bodies under article 1(2)(b).
+This was also supported by the objectives of the Directive, concerned with improving the protection of workers and the functioning of the internal market (para 39): 41.
+Whilst the size and functioning of the armed forces does have an influence on the employment situation in a given member state, considerations concerning the internal market or competition between undertakings do not apply to them.
+As the Court of Justice has already held, activities which, like national defence, fall within the exercise of public powers are in principle excluded from classification as economic activity It followed that dismissal of staff of a military base did not fall within the scope of the Directive, irrespective of whether or not it is a military base belonging to a non member state. (para 43)
+The court also considered an argument that, even if the case fell outside the Directive, it was able to give a preliminary ruling, following cases in which the court had accepted jurisdiction where EU law had been rendered applicable by reference in domestic law.
+The court explained the limits of that principle: 46.
+The court has already held that where, in regulating situations outside the scope of the EU measure concerned, national legislation seeks to adopt the same solutions as those adopted in that measure, it is clearly in the interest of the European Union that, in order to forestall future differences of interpretation, provisions taken from that measure should be interpreted uniformly 47.
+Thus, an interpretation by the court of provisions of EU law in situations outside its scope is justified where those provisions have been made applicable to such situations by national law in a direct and unconditional way in order to ensure that internal situations and situations governed by EU
+law are treated in the same way
+However, the court noted, in paras 49 and 50, that the USA had had the opportunity in the tribunal to rely on state immunity, or on special circumstances under section 188(7).
+It followed that the court did not have sufficiently precise indications that the national law made the solutions adopted by the Directive automatically applicable in such a case (para 51), so as to make the provisions of the Directive applicable in a direct and unconditional way (para 52).
+The court continued: 53.
+It is true that it is in the interests of the Union to safeguard the uniformity of the interpretations of a provision of an EU measure and those of national law which transpose it and make it applicable outside the scope of that measure. 54.
+However, such is not the case where, as in the case in the main proceedings, an EU measure expressly provides a case of exclusion from its scope. 55.
+If the EU legislature states unequivocally that the measure which it has adopted does not apply to a precise area, it renounces, at least until the adoption of possible new EU rules, the objective seeking uniform interpretation and application of the rules of law in that excluded area. 56.
+Therefore, it cannot be stated or presumed that there was an interest of the Union that, in an area excluded by the EU legislature from the scope of the measure which it adopted, there should be a uniform interpretation of the provisions of that measure.
+The vires issue
+The arguments
+The scope of section 2(2)(b) was considered by the Court of Appeal in Oakley Inc v Animal Ltd [2005] EWCA Civ 1191, [2006] Ch 337.
+The Registered Design Regulations 2001 were made under section 2(2) in order to implement Directive 98/71/EC, concerning the approximation of laws relating to registered designs.
+Article 11(8) was a transitional provision which granted member states the option of retaining their old laws in relation to designs that were already registered.
+The Court of Appeal rejected an argument that the transitional provisions in the Regulations went further than permitted by the Directive.
+Of section 2(2)(b) Waller LJ said that the words arising out of and related to should be read in the context of section 2 itself, the primary purpose of which was to give effect to the laws which under the EU Treaties the United Kingdom had agreed to make part of its own laws.
+He observed: It seems to me that section 2(2)(b) from its position in section 2, from the fact that it adds something to both subsections (1) and (2), and from its very wording is a subsection to enable further measures to be taken which naturally arise from or closely relate to the primary purpose being achieved. (para 39) (emphasis added) May LJ contrasted sections 2(2)(a) and (b): There is a distinction between providing something which, although it is a choice, is a choice which the implementation of the Directive requires you to make, and one which is not so required, but which has the effect of tidying things up or making closely related original choices which the Directive does not necessarily require.
+Section 2(2)(b) is confined by its words and context . (para 47) (emphasis added)
+In the present case the Court of Appeal accepted that the 1995 Regulations were not within the scope of section 2(2)(a) of the 1972 Act, but held that they were authorised by section 2(2)(b).
+Underhill LJ said: The decision to go beyond the requirements of the Directive by extending the employee representative rights to employees in PABs (except those in Crown employment) may, as a matter of strict analysis, reflect a substantive policy choice made by the Secretary of State; but, as the judgments in the Oakley Inc case make clear, that is not in itself objectionable.
+In fact all that he was doing was plugging the rights created by the Regulations in cases where no trade union was recognised into the pre existing scheme of the Act and thereby reproducing, in the case of this late discovered lacuna in the implementation of the Directive, the selfsame decision as Parliament had already made in enacting the primary legislation in 1975 and 1992.
+It would indeed have been an extraordinary anomaly if the kinds of employment where the obligation to consult arose differed as between cases where a trade union was recognised and cases where it was not; and it was not only natural but right for the Secretary of State in making the 1995 Regulations to ensure that the position was the same in both cases.
+In my judgment this is precisely the kind of closely related original choice which the Directive does not require but which has the effect of tidying things up that May LJ identifies in his judgment in Oakley Inc case. (para 32)
+In this court, Mr Beloff QC supports the reasoning of the Court of Appeal.
+Article 5 of the Directive made clear that the Directive sought to achieve minimum harmonisation only.
+Member states were free to enact laws more favourable to workers than those required by the Directive.
+Section 188, as applied to public administrative bodies, arose out of the obligations under the Directive in the sense of extending them further, as the UK was entitled to do by article 5, or alternatively it related to those because the subject matter (the right to consultation) was identical to the right to be consulted in the Directive.
+By the same token, the 1995 Regulations, in filling a gap in the UK legislation identified by the European court in Commission of the European Communities v United Kingdom (Case C 383/92) [1994] ICR 664 fell squarely within the scope of section 2(2)(b) of the 1972 Act under which they were made.
+This reasoning is challenged by Mr Cavanagh QC.
+Mrs Nolans employment by the public employers such as the USA was not within the scope of the 1992 Act as enacted by Parliament.
+It was brought within it solely by the amendments made by the 1995 Regulations.
+The Court of Appeal were right to find that the Regulations were outside the scope of section 2(2)(a), but were wrong to find that they were within section 2(2)(b) as matters arising out of or related to a community obligation.
+The CJEU judgment in the present case has made clear that decisions relating to the closure of foreign military bases are within an area excluded by the EU legislature from the scope of the measure which it adopted (judgment para 56).
+It follows that, in so far as the 1995 Regulations purported to extend the application of section 188 to employee representatives in such cases, they had nothing to do with this countrys Community obligations, but arose solely from domestic policy considerations.
+They were not dealing with matters arising out of or related to EU obligations in any relevant sense.
+Discussion
+I start from the words of Lord Hope in R (Risk Management Partners Ltd)
+Brent London Borough Council [2011] 2 AC 34, para 24: It is true that section 2(2) of the European Communities Act 1972 is in wide terms.
+It does not confine any measures made under it to doing the minimum necessary to give effect to a Directive.
+But, if it is to be within the powers of the subsection, the measure has to arise out of or be related to an EU obligation.
+As Waller LJ said in Oakley Inc v Animal Ltd , the primary objective of any secondary legislation under section 2(2) must be to bring into force laws which, under the Treaties, the United
+Kingdom has agreed to make part of its laws
+The words related to in section 2(2)(b) taken out of context are so wide as to be almost meaningless.
+A relationship may be very close or very distant without distortion of the word.
+In one sense, as Mr Beloff QC appeared to suggest, any provision dealing with employees rights to consultation could be said to be related to the subject matter of this Directive, and hence within the scope of the section.
+More specifically, it may be said in the present context, Parliament has in the 1992 Act established a clear and direct relationship, as a matter of domestic law, between the employments covered by the Directive, and the extension to equivalent employments under public administrative bodies.
+If that were sufficient, then it would no doubt follow that, when legislative action was required to fill gaps in the transposition of the Directive into domestic law, the same relationship would cover the decision to take equivalent action in respect of the extension.
+In Oakley the Court of Appeal sought to avoid an unduly broad interpretation by introducing additional qualifications: naturally arising, closely related, tidying up.
+Such glosses are not justified by normal rules of interpretation, and may beg as many questions as they solve.
+Thus in the present case, it may be said that extending the 1995 Regulations to public administrative bodies is closely related to to the main purpose of the amendments, or (as Underhill LJ thought) simply a matter of tidying up the 1992 Act in the light of the European courts decision.
+Such language provides no answer to the underlying problem that the relationship is one created entirely by a domestic statute, and has no obvious relevance to the purpose of the 1972 Act.
+Some limitation is necessary to ensure that the power to legislate outside the normal Parliamentary process is kept within bounds.
+The key, as Lord Hope said, at [2011] 2 AC 34, para 25, must lie in the context.
+The relationship must be one relevant to the purpose of the legislation, that is to give effect to the UKs obligations in European law.
+In other words it must be a relationship derived in some way from European law, not one dictated solely by considerations of domestic law.
+On the other hand, as the language makes clear, the power is not confined to matters which arise directly from the European obligation the minimum necessary in Lord Hopes words, at para 24.
+Related to implies the possibility of a less direct connection.
+The interpretation of the 1972 Act is of course a matter ultimately for the domestic, not the European courts.
+However, the reasoning of the CJEU in the present case suggests the basis for a principled and workable distinction, corresponding to the limits of its own jurisdiction.
+This would have the additional advantage of avoiding the problem, noted by Underhill LJ, of a European question of general importance (the Fujitsu issue) having to be decided without the possibility of recourse to the European court.
+The court saw its jurisdiction as extending to cases where European provisions are made applicable by national law in a direct and unconditional way to internal situations outside their direct scope.
+A relationship adequate to give jurisdiction to the European court might be thought an adequate relationship also for the purpose of the 1972 Act.
+However, that solution is not available in this case.
+The effect of article 1(2)(b), as found by the court, is to exclude public administrative bodies entirely from the scope of the Directive, and to renounce any European interest in that excluded area.
+I note with respect the different view taken by Lord Mance on what he describes as a difficult and borderline question.
+As I understand his judgment (para 71), he might have reached a different conclusion, if TULCRA in its amended form had been the product of subordinate rather than primary legislation.
+I would only comment that I find it difficult to understand why the status of the original legislation should impinge materially on the relationship required by section 2(2)(b) to support the 1995 Regulations.
+Mr Beloff QC relies on article 5 of the Directive by which member states are permitted to introduce laws or other measures which are more favourable to workers .
+Although the CJEU did not refer in terms to article 5, its reasoning makes it difficult to see the present extension as coming within its scope.
+That allows terms more favourable to workers as defined in the Directive.
+But by article 1.2(b), as interpreted by the CJEU, the Directive has no application to workers in public administrative bodies, who are outside its scope altogether and hence outside the reach of article 5.
+The power of the national legislature to extend similar protection to such workers is a matter purely of domestic competence, and owes nothing to the Directive.
+I should add that the same reasoning does not necessarily apply to time limited contracts, which, as already noted, are excluded by article 1(2)(a) of the Directive, but not from the domestic legislation.
+Employees under such contracts may still be workers for the purposes of the Directive, and therefore potentially within the scope of article 5.
+Conclusion
+I find it difficult therefore to avoid the conclusion that the extension of the 1995 Regulations to public administrative bodies, such as the appellants, was not within the power conferred by the 1972 Act, and that the appeal should be allowed on this ground.
+I reach this position with some diffidence, given that the wider implications of this interpretation of the 1972 Act have not been explored, and we have had no submissions from the UK government which is primarily interested in those issues.
+As already indicated, before reaching a final decision, I would have wished to invite the UK government to make representations on this issue.
+That will not now be necessary, in view of the opposite conclusion reached by Lord Mance, with the agreement of the rest of the court.
+I regret that, because of the narrow basis on which the appeal has come before us, we have not been able to provide any assistance on the resolution, as a matter now of domestic law, of the difficult Fujitsu issue, which, unless the parties otherwise agree, will have to revert to the Court of Appeal.
+For these reasons, I would have allowed the appeal on the vires issue, but dismissed all the other grounds of appeal.
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+These appeals raise the question whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non working households, equivalent to the net median earnings of working households.
+The legislation is challenged under the Human Rights Act 1998 primarily on the basis that it discriminates unjustifiably between men and women, contrary to article 14 of the European Convention on Human Rights (the ECHR) read with article 1 of Protocol No 1 to the ECHR (A1P1).
+The discrimination arises indirectly.
+The cap affects all non working households which would otherwise receive benefits in excess of the cap.
+Those are predominantly households with several children, living in high cost areas of housing.
+The heads of such households are entitled, in the absence of the cap, to relatively high amounts of child benefit, which is payable in direct proportion to the number of children.
+They are also entitled, in the absence of the cap, to relatively high amounts of housing benefit, which reflects the rental cost of the accommodation in which the household lives, and tends therefore to reflect to some extent the size of the household and, more particularly, the level of rental values in the area.
+In practice, this means that non working households with several children, living in London, are most likely to be affected.
+The majority of non working households with children are single parent households, and the vast majority of single parents are women (92% in 2011).
+A statistically higher number of women than men are therefore affected by the cap.
+The great majority of single parent non working households are however unaffected by the cap.
+It is argued that the cap also affects victims of domestic violence, because they may be temporarily housed in accommodation which is relatively expensive (the rent for such accommodation having tended to reflect the amount of housing benefit payable), and in that event are entitled, in the absence of the cap, to relatively high amounts of housing benefit.
+That will also be the position if they are entitled to housing benefit in respect of both the temporary accommodation and also other accommodation to which they hope to return.
+Victims of domestic violence are also predominantly women.
+The justification put forward for the cap is one of economic and social policy, namely that it is necessary (1) to set a reasonable limit to the extent to which the state will support non working households from public funds, (2) to provide the members of such households of working age with a greater incentive to work, and (3) to achieve savings in public expenditure at a time when such savings are necessary in the interests of the economic well being of the country.
+Article 14
+Article 14 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.
+As is apparent from its terms, article 14 can only be considered in conjunction with one or more of the substantive rights or freedoms set forth in the Convention.
+In the present case, the relevant right is that set forth in A1P1: Every natural or legal person is entitled to the peaceful enjoyment of his possessions.
+No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
+The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
+The appeal has been argued on the basis that the cap constitutes an interference with the peaceful enjoyment of possessions, within the meaning of A1P1.
+The general approach followed by the European Court of Human Rights in the application of article 14 was explained by the Grand Chamber in Carson v United Kingdom (2010) 51 EHRR 369, para 61: In order for an issue to arise under article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations.
+Such a difference of 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.
+A violation of article 14 therefore arises where there is: a difference in treatment, (1) (2) of persons in relevantly similar positions, if it does not pursue a legitimate aim, or (3) if there is not a reasonable relationship of proportionality (4) between the means employed and the aim sought to be realised.
+In practice, the analysis carried out by the European court usually elides the second element the comparability of the situations and focuses on the question whether differential treatment is justified.
+This reflects the fact that an assessment of whether situations are relevantly similar is generally linked to the aims of the measure in question (see, for example, Rasmussen v Denmark (1984) 7 EHRR 371, para 37).
+In relation to the third element, the court has referred to the criteria laid down in the second paragraphs of articles 8 to 11 of the Convention as legitimate aims, where article 14 has been read in conjunction with those articles.
+In Sidabras v Lithuania (2004) 42 EHRR 104, for example, the court stated at para 55 that the difference in treatment pursued the legitimate aims of the protection of national security, public order, the economic well being of the country and the rights and freedoms of others.
+The court has also treated aims which are legitimate in the public interest in the context of A1P1, such
+as securing social justice and protecting the states economic well being, as
+legitimate aims when article 14 has been read in conjunction with that article, as for example in Hoogendijk v The Netherlands (2005) 40 EHRR SE 189 and Andrejeva v Latvia (2009) 51 EHRR 650.
+National authorities enjoy a margin of appreciation in assessing whether and to what extent differences in treatment are justified.
+The European court has emphasised the width of the margin of appreciation in relation to general measures of economic or social strategy, stating in its Carson judgment at para 61: The contracting state enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment.
+The scope of this margin will vary according to the circumstances, the subject matter and the background.
+A wide margin is usually allowed to the state under the Convention when it comes to general measures of economic or social strategy.
+Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the court will generally respect the legislature's policy choice unless it is manifestly without reasonable foundation.
+That approach was followed by this court in Humphreys v Revenue and Customs Commissioners [2012] UKSC 18; [2012] 1 WLR 1545, where Lady Hale stated at para 22 that the normally strict test for justification of sex discrimination in the enjoyment of the Convention rights gives way to the manifestly without reasonable foundation test in the context of welfare benefits.
+Article 14 is not confined to the differential treatment of similar cases: discrimination may also arise where states without an objective and reasonable justification fail to treat differently persons whose situations are significantly different (Pretty v United Kingdom (2002) 35 EHRR 1, para 87).
+An example is the case of Thlimmenos v Greece (2001) 31 EHRR 411, where this type of discrimination was first recognised.
+The European court has also accepted that a difference in treatment may be inferred from the effects of a measure which is neutral on its face.
+In DH v Czech Republic (2007) 47 EHRR 59, the court stated at para 175: The court has established in its case law that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations.
+The court has also accepted that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group.
+In such a case, it will again be necessary to consider whether the difference in treatment has an objective and reasonable justification, in the light of the aim of the measure and its proportionality as a means of achieving that aim.
+For example, a rule requiring that employees should be capable of heavy lifting will exclude a higher number of women than men, because of differences in the average bodily strength of the sexes.
+Whether that difference in treatment has an objective and reasonable justification will depend on whether the rule which results in the difference in treatment has a legitimate aim and is a proportionate means of realising that aim: a test which might be met in employments where it is necessary to lift heavy objects.
+The present case is essentially of a similar kind: the cap, in the form in which it has been established, affects a higher number of women than men because of differences in the extent to which the sexes take responsibility for the care of children following the break up of relationships.
+Whether that differential effect has an objective and reasonable justification depends on whether the legislation governing the cap, which brings about that differential effect, has a legitimate aim and is a proportionate means of realising that aim.
+When applying article 14 in the context of welfare benefits, the European court recognises the need for national rules to be framed in broad terms, which may result in hardship in particular cases.
+In its Carson judgment, for example, the Grand Chamber stated at para 62: The court observes at the outset that, as with all complaints of alleged discrimination in a welfare or pensions system, it is concerned with the compatibility with article 14 of the system, not with the individual facts or circumstances of the particular applicants or of others who are or might be affected by the legislation.
+Much is made in the applicants' submissions and in those of the third party intervener of the extreme financial hardship which may result from the policy .
+However, the court is not in a position to make an assessment of the effects, if any, on the many thousands in the same position as the applicants and nor should it try to do so.
+Any welfare system, to be workable, may have to use broad categorisations to distinguish between different groups in need. the court's role is to determine the question of principle, namely whether the legislation as such unlawfully discriminates between persons who are in an analogous situation.
+It is important to bear this in mind in the present case, where much has again been made of the financial hardship which, it is argued, may result from the cap in particular cases.
+The relevant question, however, is whether the legislation as such unlawfully discriminates between men and women.
+The present case
+In considering the issues arising under article 14 in the present case, I shall begin by examining the process which led to the legislation with which we are concerned, in order to identify the aims pursued by the legislation and information relevant to the issue which the court has to determine.
+Consideration of the Parliamentary debates for that purpose is not inconsistent with anything said in the case of Wilson v First County Trust Ltd (No 2) [2003] UKHL 40; [2004] 1 AC 816: the purpose of the exercise is not to assess the quality of the reasons advanced in support of the legislation by Ministers or other members of Parliament, nor to treat anything other than the legislation itself as the expression of the will of Parliament.
+The Welfare Reform Bill
+On 22 June 2010 the Chancellor of the Exchequer laid before Parliament his Emergency Budget: Budget 2010 (HC 61).
+It set out a five year plan to rebuild the British economy by reducing the structural fiscal deficit.
+The plan involved reductions in Government spending of 32 billion per annum by 2014/15.
+These reductions would include 11 billion in savings achieved through reforms of welfare.
+The reforms were intended to make the welfare system fairer and more affordable, to reduce dependency, and to promote employment.
+The following month, the Department for Work and Pensions (the Department) published a consultation document, 21st century Welfare (Cm 7913), seeking views on options to reform the system of working age benefits.
+In response to a question about the steps which the Government should consider to reduce welfare dependency and poverty, many respondents answered that the most effective way would be to ensure that people were significantly better off working than on benefit, and suggested the introduction of a benefit cap to restrict the amount of welfare payments which people could receive while out of work: Consultation Responses to 21st century Welfare (2010) (Cm 7971).
+A common view was that the cap should be set by reference to the national minimum wage.
+This idea was then discussed at the Departments Policy and Strategy Forum, at which the Department engages with groups representing benefit recipients.
+On 11 October 2010 the Secretary of State announced the Governments intention to set a cap on benefits for non working households.
+Further details were provided in the Spending Review 2010 (Cm 7942), which announced the intention to cap non working household benefits at around 500 per week for couple and single parent households, and around 350 per week for single adult households, so that no non working household would receive more in welfare than the median after tax earnings of working households.
+A household would comprise one or two adults living together as a couple, plus any dependent children living with them.
+The cap would be implemented by local authorities, which would assess the benefit income of housing benefit claimants, and reduce the payments of housing benefit where necessary to ensure that they did not receive more than the cap.
+It is relevant to note, in relation to submissions concerning the impact of the cap upon children, that the Spending Review made clear the Governments belief that the proposed reforms would promote the interests of children: The UK's existing system of support can trap the poorest families and children in welfare dependency.
+For many poor children the current system of support delivers little practical change in their long term economic prospects.
+Many born into the very poorest families will typically spend their entire lives in poverty.
+The Government wants to fundamentally change the prospects of these children. (para 1(54))
+Contemporaneously with the Spending Review, HM Treasury published its Overview of the Impact of Spending Review 2010 on Equalities.
+This document considered the impact of the Spending Review on groups protected
+by equalities legislation, including women.
+It noted that decisions had been
+taken within the Spending Review which protected most of the services which women used more than men, in particular health, social care, early years and childcare.
+In order to protect those areas of spending, savings had to be made in other areas, including welfare.
+In relation to benefits, it was noted that any changes affecting single parent households would affect more women than men.
+In November 2010 the White Paper, Universal Credit: Welfare That Works (Cm 7957) was published.
+It included the benefit cap as part of the design of universal credit.
+The Parliamentary Select Committee on Work and Pensions considered the White Paper, and received evidence from, amongst others, the two interveners in the present proceedings, the Child Poverty Action Group and Shelter, as to the likely impact of the cap: House of Commons Work and Pensions Committee, White Paper on Universal Credit, Oral and Written Evidence (2011) (HC 743).
+The impact on larger families, and those living in high cost areas, was highlighted.
+That reflected the fact, recognised from the outset, that the cap would primarily affect households receiving large amounts of child related benefits and large amounts of housing benefit.
+On 16 February 2011 the Welfare Reform Bill received its First Reading in the House of Commons.
+Clauses 93 and 94 set out the proposed provisions in respect of a benefit cap.
+As is customary in the area of social security, the clauses were drafted on the footing that the primary legislation would establish a framework for secondary legislation in which the rules would be set out in detail.
+At the same time, the Department laid before Parliament an Impact Assessment for the Household Benefit Cap.
+That document explained the three policy aims: to deliver fiscal savings, to make the system fairer as between non working households and working households, and to incentivise the non working to work.
+It explained the policy options which had been considered, and the reasons for adopting the preferred option.
+In particular, it explained that consideration had been given to applying the cap to working households which also received benefits, but that it had been decided that they should be exempted, as including recipients of working tax credit among those affected by the cap would seriously reduce incentives to work (p 5).
+It had also been decided to exempt those in receipt of disability living allowance and constant attendance allowance, as disabled people with additional care or mobility costs had less ability to alter their spending patterns or reduce their housing costs in response to a cap on benefit.
+War widows and widowers would also be exempted, in order to recognise their sacrifice.
+Consideration had also been given to setting the cap at a different level, but it was decided that to base it on net median household earnings would best represent the average take home pay of working households. 26.
+The document explained that about 50,000 households would have their benefits reduced (representing around 1% of the out of work benefit case load), and that affected households would lose an average of 93 per week.
+Those affected by the cap would need to choose between taking up work (in which event they would no longer be affected), obtaining other income (such as child maintenance payments from absent parents: other reforms were designed to make it more difficult for absent parents to evade their obligation to provide financial support to single parents), reducing their non rent expenditure, negotiating a lower rent, or moving to cheaper accommodation.
+In March 2011 the Department laid before Parliament its Household Benefit Cap Equality Impact Assessment.
+The document stated that the cap was intended to reverse the disincentive effects and detrimental impacts of benefit dependency on families and children (para 5).
+The likely impact was analysed according to disability, race, gender, age, gender reassignment, sexual orientation, religion or belief, and pregnancy or maternity.
+In relation to gender, it was estimated that around 60% of claimants who had their benefits cut would be single females, whereas 3% would be single men.
+That was because around 60% of households affected would comprise single parents living with children, and single parents living with children were predominantly women.
+The impact of the cap on single parents would be mitigated by the provision of support to help them to move into work.
+Single parents would also be exempt from the cap if they worked for only 16 hours per week, whereas other single claimants would have to work for at least 30 hours per week before they were exempt. 27.
+The policy was subjected to detailed and vigorous scrutiny by both Houses of Parliament, over a period of more than 12 months, during the passage of the Bill through Parliament.
+That scrutiny was assisted by a number of House of Commons Research Papers, and by briefings prepared by organisations opposed to the policy.
+During the Committee stage which followed the Second Reading debate in the House of Commons, the Public Bill Committee also received evidence from many organisations with an interest, including the interveners.
+Consideration was also given to reports on the Bill produced by the Office of the Childrens Commissioner, which focused upon the impact on children, and by the Equality and Human Rights Commission.
+The former report expressed concern about the potential impact on children if households affected by the cap moved home in order to reduce their housing costs.
+It also expressed concern about the potential impact if households were unable to reduce their housing costs. 28.
+The discussion in Committee, and in the earlier Second Reading debate, concerned a number of issues, including the impact of the cap on single parents, its impact on children, its impact on those living in temporary 29. 30. accommodation, and the appropriateness of fixing the cap according to the net median earnings of working households, when working households receiving net median earnings might also receive certain benefits.
+In relation to the impact on single parents, it was argued that if such households included children under five years of age, there would be less likelihood of the parent being able to take up work, because of child care responsibilities and the potential cost of child care.
+Amendments to the Bill were tabled in Committee that would have exempted households from the cap where a single parent had children under five years of age, or where work was not financially more advantageous due to child care costs.
+In relation to the impact on children, it was argued that if households whose benefits were capped moved to areas where housing was less expensive, there could be consequent disruption in the supervision of children who were at risk of abuse, and also disruption of childrens schooling.
+If such households did not move to cheaper areas, they would have to economise in other ways.
+Amendments were moved in both Houses that child related benefits should be excluded from the scope of the cap, and that the cap should be related to household size. 32. 31.
+The potential impact on households living in temporary accommodation, at a relatively high cost, was also emphasised.
+Amendments were moved in both Houses that would have exempted households which were owed a duty by the local authority to be supported in temporary accommodation.
+In relation to the use of net median household earnings as the benchmark, it was argued that the cap would leave the households affected worse off than working households with equivalent earnings, since some benefits were payable to households receiving average earnings.
+An amendment was tabled in Committee to require the cap to reflect net average earnings plus in work benefits which an average earner might expect to receive: Hansard (HC Debates), 17 May 2011, col 970.
+An amendment to similar effect was also proposed in the House of Lords.
+In responding to these arguments during the discussion in Committee on 17 May 2011, the Minister emphasised the need to create a welfare system which was fair in the eyes of the general public and commanded public confidence, and the need to address a culture of welfare dependency.
+In relation to the former point, he stated that it did no service to welfare claimants if they were seen to be receiving amounts of money from the state that exceeded the average earnings of people who were working.
+That encouraged the view that 33. 34. 35. 36. there was something wrong, and it had the effect of stigmatising those claimants.
+It was important to help people into work, and it was also important to have a welfare system in which the public had confidence.
+At present, it was clearly demonstrable that that was not the case (col 950).
+In that regard, the Minister referred to the stigmatisation of non working families who received high levels of benefit, and to the level of public support for the introduction of a cap on benefits.
+He went on to say that it was not reasonable or fair for out of work households to have a greater income from benefits than the net average weekly wage of working households (col 952).
+The proposed cap for couples and families was equivalent to an earned salary of 35,000 per annum, which was considered fair (col 984).
+In response to the argument that average earnings were not a proper basis for comparison, since households on average earnings might also be in receipt of benefits, the Minister responded that it was necessary, for public confidence in the benefit system, to have a cap related to average earnings.
+He acknowledged that the proposed level of the cap was lower than the total income of a working household on average earnings which was receiving in work benefits, but said that it was necessary to ensure that people were better off in work (cols 952 and 975).
+The Minister also observed that the policy would only succeed in its objectives of influencing behaviour and increasing public confidence in the benefits system if there was a simple rule which people could understand (col 954).
+In relation to arguments based on the different needs of different types of household, such as those with several children, the Minister observed that there was a divide in philosophical view between those who thought that the cap should vary according to household size and other characteristics, and those who believed that there should be some limit to the overall benefits that the state should provide.
+Working people on low incomes had to cope with difficult circumstances, and they had to live within their means (cols 952, 973).
+Their earnings were not determined by the size of their families, and the Government believed that the same principle should apply to the level of the cap (col 975).
+Households whose benefits were capped might need to move to cheaper accommodation, but like other families they had to live in accommodation that they could afford.
+In relation to those living in temporary accommodation, the Minister observed that local authorities had a legal duty to provide accommodation which was suitable for homeless applicants, and suitability included affordability.
+That observation was consistent with the decision in R (Best) v Oxford City Council [2009] EWHC 608 (Admin), approved by the Divisional Court in the present proceedings: [2013] EWHC 3350 (QB), [2014] PTSR 23, para 53.
+The Minister explained that, whatever the cost of the 37. accommodation might be, the local authority could pass on only a charge that the applicant could afford.
+The issue of housing costs for those in temporary accommodation was being considered.
+In relation to this matter, it is relevant to note the evidence given in these proceedings by Mr Robert Holmes, the Departments lead official on the benefit cap policy.
+He explains that the Government used to reimburse local authorities, via the housing benefit system, the rent which they charged claimants for the provision of temporary accommodation, up to a maximum for each property of 500 per week in London and 375 per week elsewhere.
+It became clear that some local authorities were using this system to generate surplus revenues, by charging claimants at or about the maximum level regardless of the rental value of the accommodation in question.
+Claimants in temporary accommodation were then reluctant to seek employment, as they were concerned that they might lose their housing benefit and be unable to pay these artificially inflated rents.
+The Government was unwilling to exempt temporary accommodation from the cap, as it considered that to do so would continue to subsidise inflated rents and would discourage claimants from obtaining work.
+It decided instead to provide additional support for those in temporary accommodation through the discretionary housing payments scheme, to which it will be necessary to return. 38.
+The Bill was also considered in detail by the House of Lords, which was provided with an updated version of the Housing Benefit Cap Equality Impact Assessment (2011).
+The discussion in the House of Lords focused particularly upon the impact of the cap on households with children, and upon the use of median earnings, rather than income inclusive of benefits, as the benchmark.
+In the course of the discussion, the Minister gave an assurance that he had considered the requirements of the Human Rights Act 1998 and the ECHR in respect of the policy, and was satisfied that the way in which the Government would implement the clauses in question would meet those requirements (Hansard (HL Debates), 21 November 2011, col GC415).
+In relation to the use of median earnings as the basis of the cap, the Minister explained that it necessarily followed, by definition, that half the working households in the UK would have earnings below the level of the cap (col GC425).
+In relation to the impact of the cap on households with children, an amendment seeking to exempt single parents with children under five was opposed by the Government.
+In response to the argument that, since such parents were not obliged to seek work in order to be eligible to receive benefits, they ought also to be exempted from the cap on the amount of any 39. 40. benefits which they might receive, the Minister stated that the cap was intended to act as an incentive to work.
+Although single parents with children under five were not required to seek work as a condition of receiving benefits, that did not mean that the Government did not want to encourage them to find employment.
+The amendment would undermine the fundamental principles underpinning the cap: that ultimately there had to be a limit to the amount of benefit that a household could receive, and that work should always pay (col GC421). 41.
+A proposed amendment to exclude child benefit from the scope of the cap was opposed by the Government on the basis that its policy was that there should be a reasonable limit to the overall amount of support that non working households could receive in welfare payments, that child benefit was as much part of that support as other welfare payments, and that it should therefore be taken into account in deciding whether the limit had been reached.
+It was estimated that excluding child benefit from the scope of the cap would reduce the savings from the cap by 40 to 50%, and that also excluding child tax credit would reduce the savings by 80 to 90% (Hansard (HC Debates), 28 November 2011, col 763W).
+There would be a similar impact upon the number of households affected (Hansard (HC Debates), 23 May 2011, col 496W). 42.
+The Bill was also scrutinised by the House of Lords and House of Commons Joint Committee on Human Rights, which considered the human rights effects of the Bill and published its report in December 2011 (HL Paper 233; HC 1704).
+In written evidence to the Committee, the Secretary of State stated that it was the Governments view that, if A1P1 was engaged, the measures in the Bill were proportionate to the legitimate aim of securing the economic well being of the country.
+He observed that the greater employment of single parents would have a positive effect on child poverty, and that there was a wide range of support available to single parents seeking employment, to take account of their role as the main carer for their child.
+He added that the Government believed that the effect of the cap was proportionate, taking into account (1) the amount of the cap and the fact that it would be based on average household earnings, (2) the fact that claimants would be notified of the cap and given time to adjust their spending to accommodate their new levels of benefit, and (3) the fact that the cap would affect relatively few households and that those affected would continue to receive a substantial income from benefits. 43.
+At the Report stage in the House of Lords, the Bill was amended so as to exclude child benefit from the scope of the cap.
+When the Bill returned to the House of Commons, the House considered and voted against that amendment.
+When the Bill subsequently returned to the House of Lords, the House agreed, on a vote, not to insist on the amendment. 44.
+During the Bills passage, Ministers indicated that some of the concerns expressed in Parliament, many of them reflected in other proposed amendments, would be considered as the policy was developed.
+So it proved.
+One example was the introduction of a period of grace for benefit claimants who had previously been employed, so that their benefits would not be capped for a period of 39 weeks after they had last been in employment.
+That development reflected concerns which had been expressed about the application of the cap to households in which someone had been in work but had been made redundant or had left work in order to care for a child.
+It was also understood that child care responsibilities might make it difficult for some single parents to seek work and, by that means, to secure exemption from the cap.
+Measures were taken to address those difficulties by exempting benefits used to pay for child care (meeting 70% of the cost) from the cap, by providing single parents with job focused interviews to assist them in finding work, and by setting the number of hours required to be worked by a single parent, in order to obtain exemption from the cap, at a lower level, of 16 hours per week, than for other claimants.
+Another development was the introduction of an exception to prevent payments covering the cost of accommodation in refuges, for women who had been victims of domestic violence, from being taken into account.
+It will be necessary to return to that matter.
+Measures were also taken to ensure that the supervision of children at risk of ill treatment was not jeopardised in the event that their families moved to less expensive areas to live. 45.
+A decision was also taken to provide additional funding of 65m in 2013/2014 and 35m in 2014/15 for discretionary housing payments under the Discretionary Financial Assistance Regulations 2001 (SI 2001/1167) (the DHP Regulations).
+These are payments made by local authorities to claimants who require further financial assistance, in addition to any welfare benefits, in order to meet housing costs.
+They do not count towards the cap.
+As is stated in the guidance for local authorities published by the Government, the additional funding is intended to provide assistance to a number of groups who are likely to be particularly affected by the cap, including those in temporary accommodation, victims of domestic violence, families with children at school, and households moving to, or having difficulty finding, more appropriate accommodation.
+Households in those categories may be unable to avoid high costs in the short term: they may, for example, have to delay a move until suitable arrangements can be made for the education of children, or may require financial assistance to pay the deposit on a new home and the initial instalment of rent.
+The additional funding was intended to help them to meet those costs.
+The Government also undertook to review the operation of the cap, as had been recommended by the Joint Committee on Human Rights, and to lay before Parliament a report on its impact after a year of operation.
+The Welfare Reform Act 2012 46.
+The Welfare Reform Act 2012 (the 2012 Act) received Royal Assent in March 2012.
+The provisions relevant to the cap are sections 96 and 97. 47.
+Section 96 enables regulations to provide for a benefit cap to be applied to the welfare benefits to which a single person or couple is entitled.
+For the purposes of the section, applying a benefit cap means securing that: where a single persons or couples total entitlement to welfare benefits in respect of [a period of a prescribed duration] exceeds the relevant amount, their entitlement is reduced by an amount up to or equalling the excess (section 96(2)). 48.
+Welfare benefits are any benefit, allowance, payment or credit prescribed in regulations: section 96(10).
+The regulations cannot however prescribe as welfare benefits either state pension credit or retirement pensions: section 96(11).
+The relevant amount is an amount specified in regulations, which must be determined by reference to the average weekly earnings of a working household after deductions in respect of tax and national insurance: sections 96(5), (6) and (7).
+More detailed provision in respect of the benefit cap arrangements, including the welfare benefits or benefits from which a reduction is to be made, and any exceptions to the application of the benefit cap, are to be set out in the regulations: section 96(4).
+The regulations are to be made by the Secretary of State, and the first such regulations must be approved by Parliament under the affirmative resolution procedure: sections 96(10) and 97(3).
+Subsequent regulations must be approved under the negative resolution procedure.
+The Benefit Cap (Housing Benefit) Regulations 2012 49.
+Before laying draft regulations before Parliament, the Department consulted interested bodies, including the statutory Social Security Advisory Committee, Citizens Advice, Crisis and Shelter.
+That consultation influenced some of the policy changes which I mentioned in paras 44 45. 50.
+On 16 July 2012 the Benefit Cap (Housing Benefit) Regulations 2012 (SI 2012/2994) (the Regulations) were laid in draft before both Houses of Parliament.
+At the same time, the Department published updated impact assessments in respect of the cap.
+It was then estimated that 56,000 households would be affected (1% of the out of work benefit caseload), losing on average around 93 per week. 39% of households affected were expected to be couples with children, and 50% were expected to be single parents with children.
+Because single parents were predominantly women, 60% of affected claimants were expected to be single women, compared with 10% who were expected to be single men.
+Almost all the local authorities most affected were expected to be in London, reflecting the higher rents payable there. 51.
+Parliament received submissions on the draft regulations from a number of bodies, including Shelter.
+The draft regulations were considered by the House of Lords Secondary Legislation Scrutiny Committee, and were debated by the House of Lords Grand Chamber on 6 November 2012.
+They were also considered by the House of Commons Delegated Legislation Committee on the same date.
+The issues then considered included temporary accommodation, including womens refuges and other accommodation for victims of domestic violence, the impact upon children of households moving to areas where housing was less expensive, and the greater difficulty which people who moved out of London might experience in obtaining work.
+The draft regulations were approved by both Houses of Parliament, and the Regulations were then made. 52.
+As had been announced, the Regulations fix the cap at 350 per week for single persons and 500 for families and couples, equivalent to gross salaries of 26,000 and 35,000 per annum respectively.
+These figures are slightly above the median earnings of single persons and couples respectively.
+They are well above the national minimum wage, which in 2012 was about 12,500 per annum for a 40 hour week.
+The Regulations list the benefits which are to be treated as welfare benefits.
+As anticipated, they include the main out of work benefits, together with child benefit, child tax credit and housing benefit.
+Again as anticipated, exceptions from the application of the cap are made in respect of households where a person receives specified benefits based on disability or service in the armed forces, and in respect of households where a single parent works for 16 hours per week or a couple work for 24 hours (provided one of them works for 16 hours).
+Provision is made for the 39 week period of grace.
+In response to concerns expressed about the potential impact of the cap on households living in exempt accommodation (ie accommodation provided by housing associations, charities, other voluntary bodies or county councils to 53. persons receiving care, support or supervision provided by or on behalf of the landlord), including in particular those living in refuges for victims of domestic violence, the Regulations were amended with effect from 15 April 2013 (when, as I shall explain, the cap first came into partial effect) by the Benefit Cap (Housing Benefit) (Amendment) Regulations 2013 (SI 2013/546).
+The effect of the amendment was that housing benefit provided in respect of such accommodation was to be disregarded for the purposes of the cap.
+In response to contentions that some womens refuges fell outside the definition of exempt accommodation, the Minister announced in April 2013 that the issue was being addressed and that proposals would be brought forward at the earliest opportunity.
+The Housing Benefit and Universal Credit (Supported Accommodation) (Amendment) Regulations 2014 (SI 2014/771) (the 2014 Regulations) were subsequently made, after the present proceedings were under way.
+They replace the concept of exempt accommodation with a broader concept of specified accommodation, which encompasses a wider range of accommodation provided for vulnerable people, including the womens refuges previously excluded.
+The implementation of the Regulations 54.
+The Regulations were made in November 2012, more than two years after the intention to introduce the cap had been announced.
+From April 2012 jobcentres and local authorities implemented arrangements to provide support to households that would be affected by the cap and assist them in deciding how to respond.
+In May 2012 jobcentres wrote to all claimants potentially affected by the cap, notifying them that they might be affected and explaining the support available.
+That support included assistance from dedicated staff in moving into the labour market, obtaining access to child care provision and negotiating rent reductions with private landlords, together with advice on housing options and household budgets.
+A help line was also set up to provide information about the changes and the support available.
+Employment events were organised with local employers and training bodies.
+Further letters were sent to claimants in October 2012, February 2013 and March 2013.
+Claimants were also contacted by telephone and, where that proved ineffective, were visited.
+The cap was then introduced in phases, during which its impact was monitored by the Department.
+On 15 April 2013 the cap was applied in four local authority areas in London.
+Between 15 July 2013 and the end of September 2013 the cap was applied in other local authority areas. 55.
+Since the introduction of the cap, its impact has been discussed at meetings of the Benefit Cap Project, a forum for meetings between the Department and interested bodies, including voluntary organisations working with children and the homeless. 56.
+From August 2013 the Department published a number of reports on the impact of the cap.
+The most recent report, at the time when these appeals were heard, was that published in March 2014, which contained data for the period to January 2014.
+It reported that 38,665 households had had their housing benefit capped. 28% of the households which had at one time been capped were no longer capped. 39% of those had become exempt because a member of the household had entered work. 27% were no longer claiming housing benefit or had reduced their rent so as to come below the cap.
+Of the 20 local authorities with the highest number of capped households, 19 were in London. 95% of capped households included children. 59% of capped households, and 62% of capped households with children, comprised a single parent with children.
+In response to a request from this court, counsel also provided the Departments analysis of the data for the period up to March 2014 in respect of single parent households including a child under five years of age. 29% of such households which had at one time been capped were no longer capped. 38% of those had become exempt because a member of the household had entered work.
+These figures are in line with those for all households. 57. 58.
+According to the Departments most recent estimate as at the date of the hearing, the cap is expected to save 110m in 2013/2014 and 185m in 2014/2015.
+This level of savings is expected to continue over the longer term.
+These figures do not take into account the implementation costs or the additional funding made available for discretionary housing payments.
+Nor, on the other hand, do they take account of any reduction in benefit payments, or any receipts from income tax or national insurance, resulting from claimants moving into work.
+The present proceedings 59.
+There is no challenge in these proceedings to the 2012 Act: it is not argued that section 96 is incompatible with the ECHR.
+It follows that there is no challenge to the principle of a cap, the impact of which is inevitably greatest for those who would otherwise be entitled to the highest amount of relevant benefits.
+Nor is there any challenge to the fixing of one relevant amount (ie the cap) for single claimants and another for all other households, rather than the relevant amount being tailored to individual circumstances.
+Nor is there any challenge to the fixing of the relevant amount by reference to estimated average net household earnings, rather than by reference to estimated average net household income inclusive of benefits.
+The challenge is primarily to the compatibility of the Regulations with article 14 of the ECHR read in conjunction with A1P1. Compatibility with article 14 read with A1P1 60.
+Interference with possessions In considering the compatibility of the Regulations with article 14 in conjunction with A1P1, the first question is whether there is an interference with possessions.
+That is not a straightforward question: as the European court explained in Valkov v Bulgaria (Applications Nos 2033/04, 19125/04, 19475/04, 19490/04, 19495/04, 19497/04, 24729/04, 171/05 and 2041/05) (unreported) given 25 October 2011 at para 85, a cap may be regarded either as a provision limiting the amount of benefit after it has been calculated under the general rules, and thus an interference with a possession of the appellants, or as part of the overall set of statutory rules governing the manner in which the amount of benefit should be calculated, and thus as amounting to a rule preventing the appellants from having any possession in relation to the surplus.
+It is however unnecessary to resolve that question in the present appeal, since the applicability of A1P1 has not been contested on behalf of the Secretary of State.
+Differential treatment 61.
+The next question is whether the Regulations result in differential treatment of men and women.
+This is conceded on behalf of the Secretary of State.
+Given the statistics as to the proportion of those affected who are single women as compared with the proportion who are single men, that concession is understandable.
+It is indeed almost inevitable that a measure capping the benefits received by non working households will mainly affect households with children, since they comprise the great majority of households receiving the highest levels of benefits.
+It follows inexorably that such a measure will have a greater impact on women than men, since the majority of non working households with children are single parent households, and the great majority of single parents are women.
+That consequence could be avoided only by defining welfare benefits so as to exclude benefits which are directly or indirectly linked to responsibility for children, a possibility to which it will be necessary to return. 62.
+On the other hand, the argument that the Regulations also result in differential treatment of women because of their effect upon the victims of domestic violence has not in my opinion been established.
+In so far as the argument is based upon the failure of the Regulations, as originally made, to exempt housing benefit received in connection with all womens refuges, the amendments effected by the 2014 Regulations were designed to address that problem, and it is not argued in these appeals that they have failed to do so.
+In so far as the argument was that women fleeing domestic violence may live in temporary accommodation rather than refuges, and may then be entitled to housing benefit in respect of both their original home and the temporary accommodation, that problem, which is inherently of a temporary nature, is capable of being addressed under the DHP Regulations by the use of discretionary housing payments; and the funding made available by Government for such payments has been increased for that very purpose.
+As I have explained, guidance has been issued by the Government to local authorities advising them that the funding is specifically aimed at groups including individuals or families fleeing domestic violence, and that payments can be awarded for two homes when someone is temporarily absent from their main home because of domestic violence.
+It cannot therefore be said that the Regulations have a disparate impact upon victims of domestic violence.
+Whether problems are avoided in practice will depend upon how the discretionary payments scheme is operated by local authorities in individual cases.
+It is not suggested that any problems have arisen in the cases with which these appeals are concerned.
+Legitimate aim 63.
+The next question is whether the Regulations pursue a legitimate aim.
+In my view that cannot be doubted.
+They pursue, in the first place, the aim of securing the economic well being of the country, as the Secretary of State explained to the Parliamentary Joint Committee on Human Rights, and as is evident from the legislative history since the policy of reducing expenditure on benefits was first announced in June 2010.
+A judgment was made, following the election of a new Government in May 2010, that the current level of expenditure on benefits was unaffordable.
+The imposition of a cap on benefits was one of many measures designed to reduce that expenditure, or at least to constrain its further growth.
+It was argued on behalf of the appellants that savings in public expenditure could never constitute a legitimate aim of measures which had a discriminatory effect, but that submission is inconsistent with the approach adopted by the European court in the cases mentioned in para 10.
+It is also inconsistent with the acceptance of the economic well being of the country as a legitimate aim of interferences with Convention rights under the second paragraphs of articles 8 to 11, and under A1P1.
+An interpretation of the Convention which permitted the economic well being of the country to constitute a legitimate aim in relation to interferences with the substantive Convention rights, but not as a legitimate aim in relation to the ancillary obligation to secure the enjoyment of those rights without discrimination, would lack coherence. 64.
+In relation to the case of Ministry of Justice (formerly Department for Constitutional Affairs) v OBrien (Council of Immigration Judges intervening) [2013] UKSC 6; [2013] 1 WLR 522, para 69, on which the appellants relied, I would observe that acceptance that savings in public expenditure can constitute a legitimate aim for the purposes of article 14 does not entail that that aim will in itself constitute a justification for discriminatory treatment.
+As I have explained, the question whether a discriminatory measure is justifiable depends not only upon its having a legitimate aim but also upon there being a reasonable relationship of proportionality between the means employed and the aim sought to be realised. 65.
+The second aim, of incentivising work, is equally legitimate.
+It is, in the first place, an aspect of securing the economic well being of the country.
+It has however a broader social objective which Ministers made clear to Parliament.
+That objective is based on the view that long term unemployment is socially undesirable, because of its impact upon those affected by it (including the children brought up in non working households), and that it is therefore important to make efforts to assist those capable of working to find work: efforts which can include the removal of financial disincentives. 66.
+The third aim, of imposing a reasonable limit upon the total amount which a household can receive in welfare benefits, is in my opinion equally legitimate.
+It is again an aspect of securing the economic well being of the country: it is one of the means of achieving that objective.
+It also however has a broader aspect, namely to reflect a political view as to the nature of a fair and healthy society.
+As Ministers explained to Parliament, this objective responds in particular to a public perception that the benefits system has been excessively generous to some recipients: a perception which is related to the stigmatisation in the media of non working households receiving high levels of benefit.
+The maintenance of public confidence in the welfare system, so that recipients are not stigmatised or resented, is undeniably a legitimate aim.
+In the language used by the European court in Hoogendijk and other cases, the benefit system is the means by which society expresses solidarity with its most vulnerable members.
+That being so, it is in principle legitimate to reform the system when necessary to respond to a threat to that solidarity.
+Proportionality 67.
+The remaining question is whether the Regulations maintain a reasonable relationship of proportionality between the means employed and the aims sought to be realised. 68.
+It was argued by counsel for the appellants and interveners that the aim of setting a reasonable limit to the amount of benefits which a household can receive could have been achieved by using as a benchmark not the average earnings of working households but their average income inclusive of benefits.
+This would have been fair, adopting the adjective used by Ministers at some points during the Parliamentary debates, since it would have achieved parity between the maximum income received by non working households and the average income of working households. 69.
+There are three problems with this argument.
+The first is that section 96 of the 2012 Act, whose compatibility with Convention rights is not challenged, requires the cap to be set by reference to earnings.
+The Regulations cannot be unlawful in so far as they follow that approach (Human Rights Act, section 6(2)(a)), and would be ultra vires if they failed to do so.
+Secondly, the assessment of the level at which a cap would represent a fair balance between the interests of working and non working households is a matter of political judgment.
+Furthermore, the assumption that fairness requires an equivalence between the incomes of working and non working households ignores the costs incurred by working households in earning that income: both financial costs in respect of such matters as travel and clothing, and non financial costs in respect of the time spent commuting and working.
+As the Thlimmenos principle illustrates, non discrimination does not require that different situations should be treated in the same way.
+Thirdly, and in any event, the Government has made a judgment, endorsed by Parliament, that a cap set at the level of the average income of working households would be less effective in achieving its aims.
+That is not an unreasonable judgment: plainly, the fiscal savings would be less, and the financial incentive to find work would be reduced.
+Indeed, if the cap were set at a level which achieved parity between the income of a person on benefits and the average income of a person in work, it would act as a disincentive to work for below average earnings.
+Whether the aim of securing a benefit system which was perceived by the public as fair and reasonable would also have been less effectively achieved is again a political judgment, which cannot be said to be manifestly unreasonable.
+It was also argued that the short term fiscal savings appear to be relatively marginal at best.
+It is true that the savings made are a small proportion of the total welfare budget, the bulk of which is spent on pensions.
+They nevertheless contribute towards the achievement of the objective of reducing the fiscal deficit.
+It is also necessary to bear in mind that the Regulations are designed to result in savings over the longer term, as the intended change in the welfare culture takes effect. 70. 72. 71.
+Other criticisms of the Regulations focused upon the impact of the cap upon the income of the households most severely affected, such as those of the appellants.
+Emphasis was placed in particular upon the inclusion of child benefit and child tax credit among the welfare benefits, and the difficulties which single parents faced with a loss of income might encounter in finding work, because of their child care responsibilities, or in moving to cheaper accommodation, because of the impact upon their children.
+In relation to the reduction in income, it has to be borne in mind that the cap for a household with children has been set by Parliament at the median earnings of working households, equivalent to a salary of 35,000 per annum.
+By definition, half of all working households earn less than that amount.
+The exclusion of child benefit and child tax credit from the welfare benefits counting towards the cap would enable non working households with children to receive an income from public funds in excess of that amount.
+Whether that level of benefits ought to be paid by the state is inherently a political question on which opinions within a democratic society may reasonably differ widely.
+It is not the function of the courts to determine how much public expenditure should be devoted to welfare benefits.
+It is also important to recognise that the households affected were given advance notice of the reduction in their income, and that assistance was made available to them to enable them to address the implications, as I have explained.
+In relation to the related criticism that children in households affected by the cap are deprived of the basic necessities of life, that argument was rejected by the courts below, and I see no basis for reaching a different conclusion.
+As I have explained, the cap for a household with children is equivalent to a gross salary of 35,000 per annum, higher than the earnings of half the working population in the UK, almost three times the national minimum wage, and not far below the point at which higher rate tax becomes payable (in 2013/14, a salary of 41,450).
+Although the compatibility of the Regulations with article 14 does not depend on the individual circumstances of the appellants, as I have explained, the Court of Appeal considered in detail submissions to the effect that the cap would reduce them to a state of destitution, and concluded that their circumstances did not approach that level.
+The Divisional Court noted that even in cases where the cap had particularly adverse consequences, in the last resort the local authority was under a duty to secure suitable and affordable accommodation for the family.
+In relation to the difficulties of finding work, data from the Office for National Statistics (ONS) indicate that 63.4% of single parents with dependent children were in work during the second quarter of 2014.
+An ONS analysis based on data for 2012 indicated that the employment rate for single 73. 74. 75. parents with a dependent child under the age of 2 was 32%; for the age range 2 4 it increased to 42%; for the age range 5 11 it was 63%.
+Plainly, many single parents, including those on low incomes, make arrangements for the care of children in order to work.
+Their children over five years of age are required to attend school.
+Their younger children may attend nurseries or may be looked after by family members or child minders.
+The amount of work which a single parent has to perform, in order to be exempted from the cap, is only 16 hours per week.
+Even those hours need not necessarily be worked throughout the year: if a person works in a place of employment which has a recognisable cycle of employment, such as a school, the holiday periods during which she does not work are disregarded.
+As I have explained, assistance with meeting the cost of child care is available and is excluded from the cap.
+The statistics set out at paras 56 and 57 above do not support the contention that single parents with children under five have experienced greater difficulty in obtaining work than other claimants affected by the cap.
+Some people take the view that it is better for the single parent of a young child to remain at home full time with the child, but there is no basis for requiring that view to be adopted by Government as a matter of law.
+In relation to the argument that households with children cannot reasonably be expected to move house, because of the impact on the children, it is not merely a forensic point that one of the two adult appellants came with her family to the UK from Belgium, and that the other adult appellant came with her family to the UK from Algeria.
+Millions of parents in this country have moved house with their children, for a variety of reasons, including economic reasons.
+It is, in particular, not uncommon for working households to move out of London in order to find more affordable property elsewhere.
+It is also necessary to recognise that transitional financial assistance is available for households affected by the cap who cannot move until suitable arrangements have been made in relation to the children, as I have explained.
+Although assistance of that nature may not constitute a complete or satisfactory answer to a structural problem of a permanent nature arising from discriminatory legislation, such as the inadequacy of housing benefit to meet the cost of accommodation suitable for the needs of severely disabled claimants (as was held in Burnip v Birmingham City Council [2012] EWCA Civ 629; [2013] PTSR 117), it is relevant to an assessment of the proportionality of a measure which is liable to give rise to transitional difficulties in individual cases. 76.
+As I have explained, the court is concerned in a case of this kind with the question whether the legislation as such unlawfully discriminates between men and women, rather than with the hardship which might result from the cap in the cases of those most severely affected.
+In that regard, it is highly significant that no credible means was suggested in argument by which the legitimate aims of the Regulations might have been achieved without affecting a greater number of women than men.
+Put shortly, since women head most of the households at which those aims are directed, it appears that a disparity between the numbers of men and women affected was inevitable if the legitimate aims were to be achieved. 77.
+The greater number of women affected results from the inclusion of child related benefits within the scope of the cap.
+If those benefits had been excluded from the cap, the legitimate aims of the cap would not have been achieved, as Ministers made plain to Parliament.
+The question is raised by Lady Hale whether taking child related benefits out of the cap as it applies to single parents only would have an emasculating effect.
+I do not recall this point being raised with counsel for the Secretary of State, but the information available enables it to be considered.
+Parliament was informed that the exclusion of child related benefits would reduce the savings, and the number of households affected by the cap, by 80 to 90% (para 41).
+According to the most recent statistics available at the time of the hearing, single parent households form 62% of the affected households receiving child related benefits (para 56).
+It is therefore plain that the exclusion of child related benefits, even if confined to single parent households, would have compromised the achievement of the legitimate aims of the Regulations.
+Article 3(1) of the UNCRC 78.
+An argument of a different character was put forward on the basis of article 3(1) of the United Nations Convention on the Rights of the Child (UNCRC), which provides that in all actions concerning children the best interests of the child shall be a primary consideration.
+The argument developed during and after the hearing of the appeal.
+Initially, it was contended that the Secretary of State was obliged by section 6 of the Human Rights Act to treat the best interests of children as a primary consideration when making the Regulations, in accordance with article 3(1) of the UNCRC, since the cap had an impact upon the private and family lives of children forming part of the households affected.
+Article 8(1) of the ECHR was therefore applicable.
+Since the European court would have regard to the UNCRC when applying article 8 in relation to children, it followed that the Secretary of State was also obliged to comply with article 3(1) of the UNCRC, but failed to do so. 79.
+This argument raises a number of questions.
+In the first place, there is the question whether general legislation which limits welfare benefits, resulting in some cases in a reduction in household income, constitutes, by reason of the impact of that reduction in income upon the lives and circumstances of those affected, an interference with their right to respect for their private and family life.
+If it does, the ambit of article 8 is enlarged beyond current understanding so as to embrace legislation imposing increases in taxation or reductions in social security benefits.
+Secondly, on the assumption that such legislation falls within the ambit of article 8(1), article 8(2) permits an interference with the right to respect for family life to be justified as being necessary in a democratic society in the interests of the economic well being of the country.
+The argument that justification on that ground is impossible unless the best interests of the children affected by the measure in question have been treated as a primary consideration not only in the sense that they have been taken into account but, as counsel emphasised, in the sense that the legislation is in reality in the best interests of the children affected by it has major implications for the effect of the ECHR in relation to legislation in the field of taxation and social security. 80.
+These issues were not addressed in the course of the argument.
+Most of the European authorities cited in support were concerned with the different question of the eviction of individuals from their homes, which is not an issue arising on the facts of the present cases.
+The cases indicate that a reduction in income may have consequences which are such as to engage article 8, as for example where non payment of rent leads to the threat of eviction from ones home, but they do not indicate that the reduction in income is itself within the ambit of article 8.
+The only other European authority cited was the case of Neulinger v Switzerland (2010) 54 EHRR 1087, which was concerned with the return of a child under a child abduction convention.
+It is unnecessary to say more than that the argument has not been made out. 81.
+A more closely reasoned argument has been developed in submissions lodged after the hearing, which treats article 3(1) of the UNCRC as forming part of the proportionality assessment under article 14 of the ECHR read with A1P1.
+In consequence, a test of compliance with article 3(1) is effectively substituted for the manifestly without reasonable foundation test which all parties agree to be applicable in the present context.
+On that basis, article 3(1) is argued to be decisive of the appeals.
+It is therefore necessary to consider carefully how, if at all, article 3(1) bears on the issues in these appeals. 82.
+As an unincorporated international treaty, the UNCRC is not part of the law of the United Kingdom (nor, it is scarcely necessary to add, are the comments upon it of the UN Committee on the Rights of the Child).
+The spirit, if not the precise language, of article 3(1) has been translated into our law in particular contexts through section 11(2) of the Children Act 2004 and section 55 of the Citizenship, Borders and Immigration Act 2009: ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166, para 23.
+The present case is not however concerned with such a context. 83.
+The UNCRC has also been taken into account by the European Court of Human Rights in the interpretation of the ECHR, in accordance with article 31 of the Vienna Convention on the Law of Treaties.
+As the Grand Chamber stated in Demir v Turkey (2008) 48 EHRR 1272, para 69, the precise obligations that the substantive obligations of the Convention impose on contracting states may be interpreted, first, in the light of relevant international treaties that are applicable in the particular sphere.
+It is not in dispute that the Convention rights protected in our domestic law by the Human Rights Act can also be interpreted in the light of international treaties, such as the UNCRC, that are applicable in the particular sphere. 84.
+The approach adopted is illustrated by V v United Kingdom (1999) 30 EHRR 121, where the European court had regard to articles 37 and 40 of the UNCRC when considering how the prohibition of inhuman and degrading treatment in article 3 of the ECHR applied to the trial and sentencing of child offenders, and, in a domestic context, by R (T) v Chief Constable of Greater Manchester Police [2014] UKSC 35; [2015] AC 49, where this court referred to article 40 of the UNCRC when considering whether legislation regulating the disclosure of offences committed by children was compatible with article 8 of the ECHR. 85.
+The case of X v Austria (2013) 57 EHRR 405, on which the appellants and the interveners principally rely, concerned the proposed adoption of a child by the female partner of the childs biological mother.
+The effect of adoption under Austrian law was to sever the legal relationship between the child and the biological parent of the same sex as the adoptive parent.
+In consequence, therefore, Austrian law could not recognise a legal relationship between a child, an adoptive parent, and a biological parent of the same sex as the adoptive parent.
+An application to the European court was brought by the child, the mother, and her partner, all of whom lived together as a family, on the basis that they had been denied legal recognition of their family life by reason of the sexual orientation of the two adults, in violation of article 14 of the ECHR read together with article 8.
+The court considered their complaint on the basis that all three applicants enjoyed family life together, and all three were therefore entitled to complain of a violation of their rights.
+The effect of the Austrian law was to prevent second parent adoption by same sex couples.
+The justifications advanced were the protection of the family in the traditional sense, and the protection of the interests of children, both of which were legitimate aims.
+The question was whether the principle of proportionality was adhered to.
+In considering that question, the court identified a number of considerations which weighed in favour of allowing the courts to carry out an examination of each individual case, rather than imposing an absolute rule.
+The court added that this would also appear to be more in keeping with the best interests of the child, which was a key notion 86. in the relevant international instruments.
+In that regard, the court had earlier referred to a number of provisions of the UNCRC, including article 3(1).
+It is clear, therefore, that the UNCRC can be relevant to questions concerning the rights of children under the ECHR.
+There are also cases in which, although the court has not referred to the UNCRC, it has taken the best interests of children into account when considering whether an interference with their fathers or mothers right to respect for their family life with the children was justified.
+An example is the case of ner v Netherlands (2006) 45 EHRR 421, which concerned the deportation of an adult, resulting in his separation from his children.
+In circumstances of that kind, the proportionality of the interference with family life could not be assessed without consideration of the best interests of the children, a matter which was relevant to respect for his family life with them, as it was also to their right to respect for their family life with him.
+Indeed, they might themselves have been applicants, on the basis that their own article 8 rights were engaged. 87.
+The present context, on the other hand, is one of alleged discrimination between men and women in the enjoyment of the property rights guaranteed by A1P1.
+That is not a context in which the rights of the adults are inseparable from the best interests of their children.
+It is of course true that legislation limiting the total income which persons can receive from benefits, like any legislation affecting their income, may affect the resources available to them to provide for any children in their care, depending upon how they respond to the cap: something which will vary from one case to another.
+They may increase their income from other sources, for example by obtaining employment or by obtaining financial support for the upkeep of a child from an absent parent; or they may respond by reducing their expenditure, for example by moving to cheaper accommodation.
+Depending on how parents respond, the consequences of the cap for their children may vary greatly, and may be regarded as positive in some cases and as negative in others. 88.
+The questions (1) whether legislation of this nature should be regarded as action concerning children, within the meaning of article 3(1) of the UNCRC, (2) whether that provision requires such legislation to be in the best interests of all the children affected by it, and (3) whether the Regulations fulfil that requirement, appear to me to be questions which, for reasons I shall explain, it is unnecessary for this court to decide.
+Even on the assumption, however, (1) that article 3(1) of the UNCRC applies to general legislation of this character, (2) that article 3(1) requires such legislation to be in the best interests of all the children indirectly affected by it, and (3) that the legislation in question is not in reality in the best interests of all the children indirectly affected by it, that does not appear to me to provide an answer to the question 89. whether the legislation unjustifiably discriminates between men and women in relation to their enjoyment of the property rights guaranteed by A1P1.
+It is true that the benefits which are taken into account when deciding whether the cap has been exceeded include benefits payable to parents by reason of their responsibility for the care of children.
+It is also true that the differential impact of the measure upon men and women arises from the fact that more women than men take on responsibility for the care of their children when they separate.
+It is argued that it is therefore unrealistic to distinguish between the rights of women under article 14 read with A1P1, and those of their children under the UNCRC.
+There is nevertheless a clear distinction.
+In cases where the cap results in a reduction in the resources available to parents to provide for children in their care, the impact of that reduction upon a child living with a single father is the same as the impact on a child living with a single mother in similar circumstances, or for that matter a child living with both parents.
+The fact that children are statistically more likely to be living with a single mother than with a single father is unrelated to the question whether the childrens rights under article 3(1) of the UNCRC have been violated.
+There is no factual or legal relationship between the fact that the cap affects more women than men, on the one hand, and the (assumed) failure of the legislation to give primacy to the best interests of children, on the other.
+The conclusion that the cap is incompatible with the UNCRC rights of the children affected therefore tells one nothing about whether the fact that it affects more women than men is unjustifiable under article 14 of the ECHR read with A1P1.
+The contrary view focuses on the question whether the impact of the legislation on children can be justified under article 3(1) of the UNCRC, rather than on the question whether the differential impact of the legislation on men and women can be justified under article 14 read with A1P1, and having concluded that the legislation violates article 3(1) of the UNCRC, mistakenly infers that the difference in the impact on men and women cannot therefore be justified. 90.
+Nor is the argument made stronger by being recast in terms of domestic administrative law, on the basis that the decision to make the Regulations was vitiated by an error of law as to the interpretation of article 3(1) of the UNCRC.
+It is firmly established that UK courts have no jurisdiction to interpret or apply unincorporated international treaties: see, for example, J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, 499; R v Lyons (Isidore) [2002] UKHL 44; [2003] 1 AC 976, para 27.
+As was made clear in R (Corner House Research) v Director of the Serious Fraud Office (JUSTICE Intervening) [2008] UKHL 60; [2009] AC 756, it is therefore inappropriate for the courts to purport to decide whether or not the Executive has correctly understood an unincorporated treaty obligation.
+As Lord Bingham of Cornhill said at para 44: Whether, in the event that there had been a live dispute on the meaning of an unincorporated provision on which there was no judicial authority, the courts would or should have undertaken the task of interpretation from scratch must be at least questionable.
+It would moreover be unfortunate if decision makers were to be deterred from seeking to give effect to what they understand to be the international obligations of the United Kingdom by fear that their decisions might be held to be vitiated by an incorrect understanding.
+Lord Brown of Eaton under Heywood expressed himself more emphatically (para 67): It simply cannot be the law that, provided only a public officer asserts that his decision accords with the states international obligations, the courts will entertain a challenge to the decision based upon his arguable misunderstanding of that obligation and then itself decide the point of international law at issue. 91.
+The case of R v Secretary of State for the Home Department, Ex p Launder [1997] 1 WLR 839, on which reliance is placed, is distinguishable from the present case on the same basis as it was distinguished in the Corner House Research case.
+In the first place, as Lord Bingham pointed out (para 44), there was in Launder no issue between the parties about the interpretation of the relevant articles of the Convention, whereas in Corner House, as in the present case, the court was being asked to determine, in the absence of any international judicial authority, the meaning of a provision of an unincorporated international treaty.
+Secondly, as Lord Brown noted (para 66), Launder was a case in which it was plain that the decision maker would have taken a different decision had his understanding of the treaty been different: his clear intention was to act consistently with the United Kingdoms international obligations, whatever decision that would have involved him in taking.
+In Corner House, on the other hand, the primary intention behind the decision was to save this country from a threat which it faced, and all that the Ministers were really saying was that they believed the decision to be consistent with the international obligation in question.
+The intensity of review 92.
+Finally, it has been explained many times that the Human Rights Act entails some adjustment of the respective constitutional roles of the courts, the executive and the legislature, but does not eliminate the differences between them: differences, for example, in relation to their composition, their expertise, their accountability and their legitimacy.
+It therefore does not alter the fact that certain matters are by their nature more suitable for determination by Government or Parliament than by the courts.
+In so far as matters of that nature have to be considered by the courts when deciding whether executive action or legislation is compatible with Convention rights, that is something which the courts can and do properly take into account, by giving weight to the determination of those matters by the primary decision maker. 93.
+That consideration is relevant to these appeals, since the question of proportionality involves controversial issues of social and economic policy, with major implications for public expenditure.
+The determination of those issues is pre eminently the function of democratically elected institutions.
+It is therefore necessary for the court to give due weight to the considered assessment made by those institutions.
+Unless manifestly without reasonable foundation, their assessment should be respected. 94.
+As I have explained, the Regulations were considered and approved by affirmative resolution of both Houses of Parliament.
+As Lord Sumption observed in Bank Mellat v H M Treasury (No 2) [2013] UKSC 39; [2014] AC 700, para 44: When a statutory instrument has been reviewed by Parliament, respect for Parliament's constitutional function calls for considerable caution before the courts will hold it to be unlawful on some ground (such as irrationality) which is within the ambit of Parliament's review.
+This applies with special force to legislative instruments founded on considerations of general policy. 95.
+Many of the issues discussed in this appeal were considered by Parliament prior to its approving the Regulations.
+That is a matter to which this court can properly have regard, as has been recognised in such cases as R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15; [2005] 2 AC 246, R (Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29; [2005] 1 WLR 1681, R (Countryside Alliance) v Attorney General [2007] UKHL 52; [2008] AC 719, and R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15; [2008] AC 1312.
+Furthermore, that consideration followed detailed consideration of clause 93 of the Bill, which became section 96 of the 2012 Act.
+It is true that the details of the cap scheme were not contained in the Bill which Parliament was debating, but the Governments proposals had been made clear, they were challenged by means of proposed amendments to the Bill, and they were the subject of full and intense democratic debate.
+That is an important consideration.
+As Lord Bingham of Cornhill observed in R (Countryside Alliance) v Attorney General [2007] UKHL 52; [2008] AC 719, para 45: The democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the Act achieve through the courts what they could not achieve in Parliament.
+The same is true of questions of economic and political judgment. 96.
+Giving due weight to the assessment of the Government and Parliament, I am not persuaded that the Regulations are incompatible with article 14.
+The fact that they affect a greater number of women than men has been shown to have an objective and reasonable justification.
+No one has been able to suggest an alternative which would have avoided that differential impact without compromising the achievement of the Governments legitimate aims.
+Put shortly, it was inevitable that measures aimed at limiting public expenditure on welfare benefits, addressing the perception that some of the out of work were receiving benefits which were excessive when compared with the earnings of those in work, and incentivising the out of work to find employment, would have a differential impact on women as compared with men.
+That followed from the fact that women formed the majority of those who were out of work and receiving high levels of benefit.
+The Governments considered view, endorsed by Parliament, that the achievement of those aims was sufficiently important to justify the making of the Regulations, notwithstanding their differential impact on men and women, was not manifestly without reasonable foundation.
+I would accordingly dismiss the appeals.
+LORD CARNWATH: 97.
+Others have explained the factual and legal background of these appeals.
+The following issues were agreed between the parties for consideration by the Supreme Court: (i) Was the Court of Appeal wrong to have declined to decide whether the benefit cap, as formulated in the 2012 Regulations, had an unlawfully disproportionate impact on victims of domestic violence? (ii) Was the Court of Appeal wrong not to have found that the disproportionate effect of the 2012 Regulations on victims of domestic violence was contrary to article 14 ECHR (read with article 8 and/or article 1 of Protocol 1) and unlawful? (iii) Was the Court of Appeal wrong to have found that the discriminatory effects of the 2012 Regulations on lone parents were justified and lawful, and not contrary to article 14 (read with article 8 and/or article 1 of Protocol 1)? (iv) Was the Court of Appeal wrong to have found that the Respondent has complied with his obligation to treat the best interests of children as a primary consideration when implementing the benefit cap scheme? 98.
+The boundaries between these heads of claim have not been very clearly delineated in the arguments before us.
+However, in agreement with both Baroness Hale and Lord Reed, I find it most helpful to concentrate on issues (iii) and (iv), with specific regard to article 1 of protocol 1 (A1P1).
+Like them I do not think that a case has been made, at least on the evidence before us, for separate treatment of the position of victims of domestic violence, the subject of issues (i) and (ii).
+Under issue (iii) it is common ground that the scheme falls within the ambit of A1P1, and that in the context of article 14 it is indirectly discriminatory against women, particularly lone parents.
+The only issue therefore is justification. 99.
+Article 8 was also mentioned under issue (iii), and was relied on by Mr Wise in his printed case.
+However, as I understood it, this was not by way of challenge to the Court of Appeals rejection of the free standing claim under article 8, which is consequently not one of the agreed issues for this court.
+Rather he relied on article 8 either as an alternative route into article 14, or as supporting his best interest claim under issue (iv).
+I note that article 8 was not relied on by Mr Drabble QC for the Child Poverty Action Group.
+I have not been persuaded that either of Mr Wises formulations adds anything of substance to the claim based on A1P1. 100.
+It is important also to understand how the interests of children affected by the scheme may be relevant to the legal analysis, either under the Convention itself, or indirectly by reference to article 3(1) of the UNCRC (best interests of children as a primary consideration).
+As to the Convention, the children have no relevant possessions under A1P1 in their own right; nor are they a protected class under article 14.
+However, as Lady Hale has said (para 218), the disproportionate impact on women arises because they are responsible for the care of dependent children.
+Elias LJ said in the Divisional Court (para 62): In this case there is no dispute that the rights of the adult claimants under A1P1 (the right to peaceful enjoyment of possessions) are affected by a reduction in the benefits paid to them.
+And although the child claimants have no A1P1 rights themselves, we agree with CPAG's submission that it would be artificial to treat them as strangers to the article 14/A1P1 arguments.
+The benefits in each case are paid to the mother to enable her both to feed and house herself and to feed and house her children.
+I agree.
+Accordingly, in considering the nature of the admittedly discriminatory effect of the scheme on lone parents, and its alleged justification, the effects on their children must also be taken into account. 101.
+The possible relevance of UNCRC article 3(1) requires a little more explanation.
+Before the Divisional Court (para 45) Mr Eadie QC was recorded as having submitted on behalf of the Secretary of State that, as an international instrument with no binding effect in English law, the Convention had no bearing on the case.
+This argument was rejected by Elias LJ and has not been renewed.
+The Court of Appeal said: 69.
+The Divisional Court held that, notwithstanding the fact that the UNCRC is an international convention which has not been incorporated into our domestic law, the court should nevertheless have regard to it as a matter of Convention jurisprudence: see Neulinger v Switzerland (2010) 28 BHRC 706, cited by Baroness Hale in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166 at para 21.
+This has not been challenged by the Secretary of State on this appeal. (para 69) Whether or not for this reason, issue (iv) was agreed by the Secretary of State in a form which raised directly the issue of compliance with article 3(1), without overtly questioning its legal relevance, or advancing any substantive argument on that issue.
+In the circumstances it seemed right to proceed on the basis, conceded rather than decided, that the obligations imposed by article 3(1) were matters to be taken into account under the Convention on Human Rights.
+As will be seen, this has now emerged as a crucial issue following the post hearing exchanges.
+However, before returning to it in that context, I will consider the treatment of the discrimination issues, and in particular article 3(1), in the courts below. 102.
+It is unnecessary to repeat the accounts given in other judgments of the nature of the discrimination, of the three fold justification put forward by the Secretary of State, and of the criticisms made of it by the appellants, supported by the interveners.
+In short, it is said, the two objectives of fairness and increasing incentives to work are largely irrelevant or misconceived in their application to the group which is the object of discrimination; and that the third, saving money, cannot on its own justify discriminatory treatment in the enjoyment of a convention right.
+The essential objection was put shortly by Mr Drabble for the Child Poverty Action Group: Although this is not the expressed aim of the cap, its discriminatory effect is built in to its structure.
+Lone parent families are more likely to be affected by the cap precisely because it is so difficult for them to move into work; and the effects of the cap on them will necessarily be much harsher the corollary is that a lone parent will be far less likely to be able to avoid the cap by moving into work (a point accepted by the Government).
+The effects of the cap on a single mother and her children will be more severe the more children she has to clothe, feed and house, and she must do so alone. 103.
+The Court of Appeal, in agreement with the Divisional Court, rejected these criticisms, holding in particular that there had been compliance with article 3(1) (para 72ff).
+Applying the approach of members of this court in H (H) v Italian Prosecutor [2013] 1AC 338, they held that it was not necessary for the decision maker to adopt a tightly structured approach to consideration of the issues raised by article 3(1).
+It was enough for him to give appropriate weight to the interests of children as a primary consideration in the overall balancing exercise. 104.
+They found ample evidence that the Secretary of State had satisfied this test, citing five matters (para 74): (i) The 2010 Treasury Spending Review made clear that a principal objective was to raise children out of long term poverty; (ii) The February 2011 Impact Assessment showed that the government was keenly aware of the likely impact on children; (iii) The March 2011 Equality Impact Assessment stressed the objective of reversing the detrimental impact on families and children of benefits dependency, and indicated that the government was looking at ways to ease the transition for large families; (iv) The Parliamentary debates focussed time and again on the interests of children; and (v) The July 2012 Impact Assessment revised the assessment of the number of children likely to be affected and addressed the issue of short term relief.
+These points have been in substance adopted in the submissions of the Secretary of State in this court. 105.
+The comments in this court in H (H) predated, and therefore did not take account of, the most authoritative guidance now available on the effect of article 3(1).
+This is in General Comment No 14, adopted by the UN Committee on the Rights of the Child early in 2013.
+Although this guidance was not available at the time of the decisions under challenge, it is as I understand it intended as a restatement of established practice, rather than a new departure. 106.
+Paragraph 6 explains that best interests in this context is a three fold concept: (a) a substantive right, (b) a fundamental, interpretative legal principle, and (c) a rule of procedure.
+The first and third are explained as follows: (a) A substantive right: The right of the child to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake, and the guarantee that this right will be implemented whenever a decision is to be made concerning a child, a group of identified or unidentified children or children in general.
+Article 3, paragraph 1, creates an intrinsic obligation for States, is directly applicable (self executing) and can be invoked before a court. (c) A rule of procedure: Whenever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned.
+Assessing and determining the best interests of the child require procedural guarantees.
+Furthermore, the justification of a decision must show that the right has been explicitly taken into account.
+In this regard, States parties shall explain how the right has been respected in the decision, that is, what has been considered to be in the childs best interests; what criteria it is based on; and how the childs interests have been weighed against other considerations, be they broad issues of policy or individual cases. (emphasis added) 107.
+Later paragraphs explain that the phrase actions concerning children is to be read in a very broad sense covering actions including children and other population groups, such as those relating to housing (para 19); that where a decision will have a major impact on children a greater level of protection and detailed procedures to consider their best interests (are) appropriate (para 20); and that the childs interests have high priority and (are) not just one of several considerations larger weight must be attached to what serves the child best (para 39). 108.
+In relying on this guidance, Mr Wise accepted that it was not necessary for the decision maker to address the issues in a particular structured order, as the Court of Appeal may have understood his argument.
+What matters is the substance of what is done rather than the form.
+However those passages do show in my view that the evaluation needs to consider, where relevant, the interests both of children in general and of those directly affected by the action.
+It also needs to indicate the criteria by which the high priority given to childrens interests has been weighed against other considerations.
+In so far as that evaluation shows conflict with the best interests of the children affected, it needs either to demonstrate how that conflict will be addressed, or alternatively what other considerations of equal or greater priority justify overriding those interests. 109.
+Accordingly, as the submissions and evidence stood at the end of the hearing, my view was that, judged by those criteria, the matters relied on by the Court of Appeal fell well short of establishing compliance.
+The Treasurys long term objective of taking children out of poverty, laudable in itself, was no substitute for an evaluation of the particular impact on the children immediately and directly concerned, and their parents.
+The February 2011 Impact Assessment and the March 2011 Equality Impact Assessment may have shown that the government was keenly aware of the likely impact on children, and was looking at ways to ease the transition, but they did not provide the answers.
+In any event, those assessments were related to the statute rather than the regulations which are now under challenge. 110.
+Those assessments also predated the report by the Childrens Commissioner in January 2012, which set out a number of likely outcomes of concern to the Commissioner.
+They included increase in child poverty (including diversion to housing costs of money which would otherwise have been spent on necessities for childrens health and wellbeing), children losing their homes, incentivising family breakdown, and disproportionate impact on children from some BME groups.
+The Commissioner expressed the view that the universal imposition of the cap without regard to the individual circumstances of children would conflict with the best interests principle under UNCRC article 3(1).
+This view had special significance, as that of the authority responsible under the Children Act 2004 for advising the Secretary of State on the interests of children. 111.
+The subsequent Equality Impact Assessment of July 2012, prepared by the Department in support of the regulations, did indeed make some revisions to the earlier figures, and mentioned the short term relief to be provided by discretionary housing payments.
+But it did not in terms respond to the more fundamental points of concern raised by the Commissioners report.
+In his evidence for the Secretary of State, Mr Holmes observed simply that the government did not agree with the Commissioners assessment, but without further detail.
+The July assessment also indicated that there would in due course be a full evaluation of the operation of the benefit cap, to be published in autumn 2014. (We have not been given any information relating to this exercise, nor has it been suggested that it is relevant to our consideration of the legal issues relating to the decisions under challenge.) 112.
+For these reasons, my provisional view at the end of the hearing was that, in their application to lone parents and their dependent children, the regulations were not compatible with Convention rights, and that the court should so declare.
+Post hearing submissions 113.
+In post hearing submissions permitted by the court, the point was taken on behalf of the Secretary of State that A1P1 (with or without article 14) was not the context in which article 3(1) UNCRC had hitherto been relied on by the appellants.
+I observe that this limitation is not apparent from the agreed wording of question (iv).
+Nor it seems was the discussion in the courts below so limited.
+Lord Dysons reference to this argument (paras 67 75), and to its treatment by the Divisional Court, came immediately after his discussion of article 14 (read with A1P1); he observed that the argument had featured prominently in Mr Wises submissions on justification in relation to article 14 (as well as in relation to article 8 which we deal with below.
+It is fair to say however that at the hearing Mr Wises submissions in that connection were directed mainly to article 8.
+For this reason, and because of the importance of the issue for this case and others, counsel for the Secretary of State were given the opportunity to make further written submissions. 114.
+They summarised their submissions in the following six points: (i) Article 3(1) of the UNCRC is a provision of an unincorporated treaty which may only be relied on to the extent that it has been transposed into domestic law; (ii) The ECtHR uses international law when determining the meaning of provisions of the ECHR, in accordance with the Vienna Convention on the Interpretation of Treaties; (iii) Article 3(1) of the UNCRC is, as a matter of principle and in accordance with Strasbourg authority, not relevant to the question of justification of discrimination under article 14 read with A1P1.
+It has no role to play in determining the meaning of article 14 (read with A1P1 or otherwise), and does not inform or illuminate the question whether the differential impact on women of the benefit cap is proportionate; (iv) Article 3(1) of the UNCRC does not supplant, dilute or compromise the Stec test which all parties have agreed, at every stage of these proceedings, applies both when considering whether the aims are legitimate and when determining whether the 2012 Regulations, having regard to their differential impact on women, are proportionate; (v) Even if the Court were to consider it foreseeable that the ECtHR may develop its case law to have the effect that a breach of article 3(1) of the UNCRC renders legislation disproportionate, there are strong constitutional reasons why the Court should refrain from going beyond the current Strasbourg jurisprudence; and (vi) In any event, the 2012 Regulations do not breach article 3(1) of the UNCRC.
+The Secretary of State fully took into account the best interests of children, as a primary consideration, and these were extensively debated in Parliament. 115.
+I have little difficulty with points (i), (ii), (iv) and (v).
+There has been no dispute as to the application of the Stec test to the issue of proportionality (iv), and no one has argued that we should go beyond existing ECHR jurisprudence (v).
+As to (i) it is of course trite law that, in this country at least, an international treaty has no direct effect unless and until incorporated by statute, but that it may be taken into account as an aid to interpretation in cases of ambiguity.
+To that extent the present case is to be contrasted with cases such as ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166, in which as Lady Hale explained (para 23), UNCRC article 3(1) was reflected in the relevant statutory provisions.
+Ministerial statements of the governments commitment to giving due consideration to the UNCRC articles (see Lady Hale para 214), may have political consequences but are no substitute for statutory incorporation. 116.
+It is equally clear (ii) that, under the ECHR and in accordance with the Vienna Convention, regard may be had to principles of international law, including international conventions, for the purpose of interpreting the terms and notions in the text of the Convention: see Demir v Turkey (2008) 48 EHRR 1272, paras 65, 67, 85.
+Demir itself is a good illustration of that proposition.
+For the purpose of determining whether article 11 (right to join a trade union) extended to civil servants, reference was made to article 22 of the International Covenant on Civil and Political Rights.
+It was noted by the court (para 99) that the wording of that article was similar to that of article 11 of the Convention, but that it was expressed to be subject to the right of the state to exclude the armed forces and the police, without referring to members of the administration of the state.
+Similarly, in Neulinger v Switzerland, to which Elias LJ referred, the court had regard to the Hague Convention on the Civil Aspects of International Child Abduction in determining whether forced return of a child to Israel would involve a breach of his rights under article 8 of the Convention.
+Point (iii) international treaties and article 14 117.
+Point (iii) questions the application of this approach in the context of article 14 taken with A1P1, and more specifically to the issue of justification.
+There seems to be no reason in principle why the Demir approach should not apply to article 14.
+Mr Drabble relies on X v Austria (2013) 57 EHRR 405, as the clearest example, in that case relating to article 14 taken with article 8.
+The court held that a law preventing second parent adoption in the case of same sex marriages involved discrimination under 14, and, although the law served a legitimate aim, it had not been shown that an absolute prohibition was necessary for the protection of the families or children.
+Early in its judgment (para 49) the court had quoted UNCRC article 3, and also article 21 which requires that systems of adoption shall ensure that the best interests of the child shall be the paramount consideration.
+In considering the question of justification, the court listed the factors which seemed rather to weigh in favour of allowing the courts to carry out an examination of each individual case adding (with a reference to the earlier quotations): This would appear to be more in keeping with the best interests of the child, which is a key notion in the relevant international instruments (para 146) Of this case Mr Sheldon QC for the Secretary of State commented: the court carried out the proportionality exercise (in respect of article 14 read with article 8) in the usual way and only subsequently observed that the outcome would also appear to be more in keeping with the best interests of the child.
+That is not the same as using the UNCRC for the purposes of carrying out the balancing exercise itself.
+Still less does it involve using the UNCRC to alter the proportionality test.
+If that was intended to suggest that the reference to the UNCRC was purely incidental to the courts reasoning, I cannot agree.
+The prominence given to the relevant articles in the earlier exposition of the relevant law shows to my mind that it was treated as a significant part of the consideration of article 14, albeit in a very different factual context to the present case. 118.
+Another Strasbourg case in which reliance was placed on the UNCRC as an aid to interpretation of the Convention, in this case in favour of the state, was Ponomaryov v Bulgaria (2011) 59 EHRR 799.
+The complaint was of a violation of article 14 taken with A2/P1 (right to education), by direct discrimination on the grounds of nationality with respect to the provision of secondary education.
+In dismissing the application, the court relied on UNCRC article 28 as supporting the view that the state enjoyed a greater margin of appreciation in relation to secondary as compared to primary education (para 57). 119.
+There are examples also in domestic jurisprudence.
+Lady Hale has referred to the judgment of Maurice Kay LJ in Burnip v Birmingham City Council [2013] PTSR 117, concerning discrimination in the application of housing benefit for a disabled person.
+Although the court was able to arrive at its decision on other grounds, Maurice Kay LJ would have relied if necessary on the UN Convention on the Rights of Persons with Disabilities (CRPD) to resolve any uncertainty over the meaning of article 14 discrimination in the circumstances of the case (para 22).
+Of this case Mr Sheldon comments: Even if that was a correct approach, it does not justify using a treaty involving one group (here, children) to resolve any uncertainty about a claim for discrimination brought by, and in respect of, an entirely different group (here, women).
+I see no reason to question Maurice Kay LJs approach as applied to the case before him, which seems wholly consistent with the ECHR cases already cited.
+I accept however that the treaty in question was directly related to the particular form of discrimination there in issue.
+I will return to that point. 120.
+I see no inconsistency between such reference to international treaties where relevant and the Stec test.
+In Burnip.
+Henderson J, giving the lead judgment, cited the passage in Stec which established the manifestly without reasonable foundation test as appropriate for review of general measures of economic or social strategy, and declined to adopt an enhanced test requiring very weighty reasons for the discrimination.
+It was in this context that Maurice Kay LJ, who agreed with Henderson J on the issue of justification (para 23), drew assistance from the CRPD. 121.
+Before considering the application of that approach to the present case, it is convenient to consider point (vi), that is whether the latest submissions throw any further light on the issue whether the regulations were in compliance with article 3(1).
+Compliance with article 3(1) 122.
+It is not in dispute that, as asserted, issues in relation to the interests of children were extensively debated in Parliament or that the views so expressed were taken into account by Ministers.
+But article 3(1) is more than a restatement of the ordinary administrative law duty to have regard to material circumstances.
+The principles were summarised by Lord Hodge in Zoumbas v Secretary of State for the Home Department (AF (A Child) intervening) [2013] 1 WLR 3690 (paras 10 13) in seven points.
+I would emphasise the first and last: (1) The best interests of a child are an integral part of the proportionality assessment under article 8 ECHR ; (7) A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent.
+On the other hand, as he added (by reference to H (H)) there may be circumstances in which the weight of another primary consideration can tip the balance and make the interference proportionate even where it has very severe consequences for children (para 13). 123.
+In considering how the government approached that task, rather than trawling through the parliamentary debates, we are entitled to rely on the evidence given in these proceedings on behalf of the Secretary of State.
+The Court of Appeal quoted (paras 32 33) the evidence of Mr Holmes that: if the level of the benefit cap was based on the number of children in a household it would undermine the intention that there should be a clear upper limit to the amount of benefit families can receive. and Agreeing to exclude child benefit from the cap would have effectively resulted in there being no limit to the amount of benefit a household could receive.
+Further, Child Benefit, like other welfare benefits, is provided by the state and funded by taxpayers and therefore with the aim of reducing welfare expenditure and reducing the deficit the Government believes it is right that it is taken into account along with other state benefits when applying the cap.
+It is noteworthy that, as far as Mr Holmes evidence went, the Secretary of State offered no substantive response to the specific concerns expressed by the Childrens Commissioner and others about the practical impact on children of families affected by the cap.
+Of the two points made by him, the second is no more than a general statement of the desirability of limiting government expenditure, without any direct reference to the interests of children.
+The first point the need for a clear upper limit begs the question whether it is consistent with the statutory framework to treat child benefits as no more than a component of the family income. 124.
+The difficulty with that response, in the context of a duty to treat the best interests of the child as a primary consideration is that it ignores the distinctive statutory purpose of the child related benefits.
+Lord Reed (para 35) refers to a ministerial response in the course of the Parliamentary debate, to the effect that working people on low incomes had to cope with difficult circumstances and live within their means; that their earnings were not determined by the size of their families, and that the government believed that the same principle should apply to the level of the cap. 125.
+As applied to child related benefits, in my view, this was a false comparison.
+No doubt for that reason it was not a point made by Mr Holmes.
+The benefits are paid regardless of whether their parents are in work or not.
+In this respect therefore workers and non workers alike were (before the cap) able to rely on this extra assistance in coping with difficult circumstances in the interests of their children.
+Although paid to the parents, these benefits are designed to meet the needs of children considered as individuals.
+As Lady Hale said in Humphreys v Revenue and Customs Comrs (summarising the case for the Revenue): The aim of child tax credit is to provide support for children.
+The principal policy objective is to target that support so as to reduce child poverty.
+The benefit attaches to the child rather than the parent. ([2012] 1 WLR 1545 para 25) The same could be said of child benefit. 126.
+As Mr Drabble QC submitted, the cap was a complete innovation in the combined benefits/tax system, which had always contained a mechanism to adjust for family size.
+The cap has the effect that for the first time some children will lose these benefits, for reasons which have nothing to do with their own needs, but are related solely to the circumstances of their parents.
+It is difficult to see how this result can be said to be consistent with the best interests of the children concerned, or in particular with the first and seventh principles in Zoumbas. 127.
+Lord Reed has referred to statements made to Parliament in November 2011 that excluding both child benefit and child tax credit would reduce the savings from the scheme by 80 90%, and so emasculate the scheme.
+It is not clear whether these are up to date estimates, or how they relate to the regulations as opposed to the Bill.
+If correct, they raise the questions why the viability of a scheme, whose avowed purpose is directed at the parents not their children, is so disproportionately dependent on child related benefits.
+There is nothing in Mr Holmes evidence which addresses or answers these questions. 128.
+Accordingly I remain of the view that the Secretary of State has failed to show how the regulations are compatible with his obligation to treat the best interests of children as a primary consideration.
+UNCRC article 3(1) and A1P1 129.
+The more difficult question, now that it has been put in issue, is how that finding in relation to the interests of children under UNCRC article 3(1) affects the resolution of issue (iii): that is the alleged justification for the admittedly discriminatory effects on women as lone parents.
+As Mr Sheldon submits, even if article 3(1) had a role to play in illuminating article 14, this could only be where the alleged indirect discrimination, or differential treatment, was in respect of children.
+In the present case, by contrast, the allegation is of discrimination, not against children, but against their mothers.
+The children, it is said, will be treated the same whether their lone parents are male or female.
+With considerable reluctance, on this issue agreeing with Lord Reed, I feel driven to the conclusion that he is right. 130.
+In all the article 14 cases to which we have been referred to in this context there was a direct link between the international treaty relied on and the particular discrimination alleged: (i) In X v Austria (2013) 57 EHRR 405, where the complaint concerned discrimination by restrictions on adoption by single sex couples, the court referred not only to UNCRC article 3(1), but also to article 21 which applied the best interests principle specifically to adoption.
+In Ponomaryov v Bulgaria (2011) 59 EHRR 799, where the complaint was of discrimination in respect of education, reference was made to UNCRC article 28 relating also to education. (ii) (iii) In Burnip v Birmingham City Council [2013] PTSR 117, where the alleged discrimination related to the treatment of the disabled, reference was made to the CRPD, covering the same subject matter.
+In each of these cases, it can plausibly be argued that the court was using the international materials to fill out, or reinforce, the content of a Convention article dealing with the same subject matter.
+They can be justified broadly as exercises in interpretation of terms and notions in the Convention, consistently with the Demir principle. 131.
+There is no such connection in the present case.
+The discrimination with which we are concerned under article 14 is in relation to women and their possessions.
+Those concepts require no relevant illumination by way of interpretation.
+It is true that the discrimination in this case is related to their responsibilities as lone parents, and to that extent, as Elias LJ accepted, the children are not strangers to the article 14/A1P1 arguments.
+But that is a comment on the facts, not on the interpretation of the convention rights.
+Indeed, as has been seen, it is the distinct interest of the children in the benefits as individuals that has reinforced my view of the breach under article 3(1).
+As Lord Reed says (para 89) the fact that children are statistically more likely to be living with a single mother than with a single father is unrelated to the question whether the childrens interests have been treated as a primary consideration as required by UNCRC article 3(1). 132.
+We have been shown no precedent in the Strasbourg jurisprudence for the use of an international treaty in this indirect way.
+Mr Sheldon argues that there are strong constitutional reasons why the court should not go beyond Strasbourg on an issue of this kind.
+Whether or not that is so, we have heard no argument that we should do so.
+The appellants and their supporters have relied simply on the principles to be extracted from the existing case law.
+Conclusion 133.
+In conclusion I would dismiss the appeal, albeit on grounds much narrower than those accepted by the courts below.
+I would hope that in the course of their review of the scheme, the government will address the implications of these findings in relation to article 3(1) itself.
+However, it is in the political, rather than the legal arena, that the consequences of that must be played out.
+LORD HUGHES: 134.
+I agree with the judgment and conclusions of Lord Reed and would like him dismiss this appeal.
+I add only some additional observations in view of the difference of opinion which is disclosed by the judgments of Lady Hale and Lord Kerr. 135.
+There is much common ground. (i) The suggested discriminatory effect upon the victims of domestic violence adds nothing to the accepted discriminatory effect upon women.
+Moreover neither of the adult appellants is suffering any of the adverse effects of the cap relied upon as affecting such victims, so that the Court of Appeal was fully justified in declining to decide the issue of such victims.
+Further, the principal adverse effects peculiar to such victims which were relied upon (the treatment of refuges and the possible need for two sets of rent to be within housing benefit) have both been addressed by amendments to the original form of the Regulations.
+It is agreed on all sides that the scheme has legitimate aims.
+At the very least, the principal aim of discouraging benefit dependence and encouraging work is agreed to be legitimate.
+For my part I agree that at a time of national economic crisis it was also legitimate to seek to reduce the overall expense on benefits, and that establishing a different balance between those who worked and paid taxes and those who did not was a further legitimate aim. (ii) (iii) A1P1 to the First Protocol is agreed to be engaged to the extent that Stec v United Kingdom (2006) 43 EHRR 1017 establishes that, although it does not give an entitlement to benefits, the ECHR does require that if they are provided they must be administered in a manner which is not discriminatory contrary to article 14.
+Here a discriminatory effect of the regulations upon women is conceded, because they represent much the largest proportion of lone parents forming a household with children.
+Accordingly the scheme as a whole, including its discriminatory effect, must be justified.
+The test, in a case involving high level social/economic policy, is agreed by all parties to be that laid down in Stec, namely that it fails to be justified if it is manifestly without reasonable foundation. 136.
+The difference of opinion reduces itself to the place of article 3 of the UN Convention on the Rights of the Child (UNCRC).
+That in turn involves two questions: (a) does article 3 have legal effect in English law and if so by what (b) route? and if it does, has there been a breach of it such as to render the Regulations unlawful? The legal relevance of article 3 UNCRC 137.
+Article 3 UNCRC is contained in an international treaty ratified by the UK.
+It is binding on this country in international law.
+It is not, however, part of English law.
+Such a treaty may be relevant in English law in at least three ways.
+First, if the construction (ie meaning) of UK legislation is in doubt, the court may conclude that it should be construed, if otherwise possible, on the footing that this country meant to honour its international obligations.
+Second, international treaty obligations may guide the development of the common law.
+For these two propositions see for example R v Lyons (Isidore) [2002] UKHL 44; [2003] 1 AC 976, para 13.
+Neither has any application to this case.
+This case is concerned with legislation, not with the common law, and it is not suggested that there is any room for doubt about the meaning of the regulations.
+Thirdly, however, the UNCRC may be relevant in English law to the extent that it falls to the court to apply the European Convention on Human Rights (ECHR) via the Human Rights Act 1998.
+The European Court of Human Rights has sometimes accepted that the Convention should be interpreted, in appropriate cases, in the light of generally accepted international law in the same field, including multi lateral treaties such as the UNCRC.
+An example is Demir v Turkey (2008) 48 EHRR 1272 which concerned the scope of article 11 (right of freedom of association), and which is cited by Lord Reed at para 83 above. 138.
+It was on this third basis that the UNCRC was advanced in argument before this court and, as I understand it, in the courts below.
+Until post hearing submissions in this court, this argument was confined to praying in aid article 3 UNCRC upon the application or content of article 8 of the ECHR (respect for private and family life).
+In turn, the complaint of infringement of article 8 was based upon the rights of the children affected by the cap, not of their mothers except to the extent that they were, as carers, directly involved in the article 8 rights of their children.
+Article 3 UNCRC was not, until the post hearing submissions, advanced as relevant to the justification of the admitted indirect discrimination against women in relation to their A1P1 rights. 139.
+For the reasons set out by the Court of Appeal, the article 8 rights of children are not arguably infringed by the benefit cap scheme.
+Elastic as that article has undoubtedly proved, it does not extend to requiring the State to provide benefits, still less benefits calculated simply according to need, nor does it require the state to provide a home.
+See Chapman v United Kingdom (2001) 33 EHRR 399, para 99; R (TG) v Lambeth London Borough Council (Shelter intervening) [2012] PTSR 364, paras 34 and 40; AM v Secretary of State for Work and Pensions [2014] EWCA Civ 286, para 22 and the cases there cited.
+Winterstein v France [2013] ECHR 984 depended upon the long toleration of itinerants on the land from which they were evicted and the absence of provision of alternative accommodation, and does not lead to a different conclusion.
+Moreover, the likely impact of this scheme upon some children who are members of larger families living in high rent homes is at most to make it unavoidable for the family to move; the duty of Local Authorities to provide accommodation under the Housing Act 1996, Part 7, remains.
+None of the judgments suggests that article 8 is engaged.
+I agree that it is not.
+It follows that article 3 UNCRC cannot have effect in English law on the grounds that it is relevant to its interpretation. 140.
+The additional argument now formulated before this court and accepted by Lady Hale and Lord Kerr would give article 3 UNCRC the force of domestic English law on the grounds that it bears on the issue of whether the agreed discrimination against women in relation to their A1P1 rights was justified.
+Lord Kerr would additionally give article 3 direct effect on the grounds that the UKs signature to the convention is sufficient to impose a domestic duty to comply with it.
+Like Lord Reed and Lord Carnwath, I am unable to accept these arguments. 141.
+It may not be difficult to see that in interpreting the content of the article 8 rights of children, it may be legitimate to take into account the international obligation contained in article 3 UNCRC.
+ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166 was an article 8 case where the relevance to that article of the interests of the children of a potential deportee was conceded.
+Similarly, Neulinger v Switzerland (2010) 54 EHRR 1087 depended upon article 8.
+It concerned an order directly about the upbringing of a child, namely an order for return to another state pursuant to the Hague Convention on the Civil Aspects of Child Abduction, and the very first words of that convention declare the interests of children to be of paramount importance in matters relating to their custody.
+If article 8 rights are engaged, the question will often become: is such impairment of respect for private and family life nevertheless permissible under article 8(2)? If the article 8 rights relied upon are those of children, as was asserted here, or of their parents in the form of their relationship with their children, as in ZH (Tanzania), there is scope for the argument that an internationally recognised duty to approach the childrens interests in a particular way bears on whether article 8(2) is satisfied in the context of these regulations whether any impairment of childrens article 8 rights was permitted on the grounds that it is necessary in a democratic society in the interests of the economic well being of the country or the protection of the rights and freedoms of others, such as those taxpayers who do not claim benefits. 142.
+The Demir approach is not of course limited to article 8, as that case itself shows.
+And it may extend to cases where discrimination is in issue.
+Opuz v Turkey (2009) 50 EHRR 695 was an article 2/article 14 case involving a complaint of failure to protect from domestic violence.
+The court relied in part on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in determining the scope of article 14: see paras 185 187.
+Ponomaryov v Bulgaria (2011) 59 EHRR 799 was a complaint of discrimination against foreign nationals by charging for education when Bulgarian nationals received free provision.
+Obiter, the court referred at paras 56 57 to international conventions which indicated that the states margin of appreciation increased as one moved from primary, through secondary, to tertiary education.
+Burnip v Birmingham City Council [2013] PTSR 117 was a benefits case involving A1P1 and a derivative article 14 claim.
+In the Court of Appeal Maurice Kay LJ would have been prepared to adopt a similar approach by gaining assistance on the scope of article 14 from the UN Convention on the Rights of Persons with Disabilities (CRPD) if the extent of article 14 had been in doubt.
+Obiter, he also offered the opinion that CRPD might illuminate the approach to justification, but the occasion to test this did not arise.
+But before the Demir approach to the interpretation of the ECHR can be relevant, there has to be the necessary connection between the international law invoked and the Convention right under consideration.
+This was clearly present in each of Opuz, Ponomaryov and Burnip.
+In each, the international instruments referred to were directly concerned with the particular form of discrimination in issue.
+Demir does not mean that the UNCRC (in this case) becomes relevant to every ECHR question which arises, simply because children are as a matter of fact affected by the decision or legal framework under consideration. 143.
+It is said that the Strasbourg court has invoked article 3(1) UNCRC in the context of a discrimination claim in X v Austria (2013) 57 EHRR 405.
+That was a case in which the same sex partner of a childs mother wished to adopt the child, who lived with the two ladies.
+The effect of Austrian law was that adoption substituted the adoptive parent for the natural parent of the same sex.
+Thus second parent adoption (adoption by the partner of the natural parent) by a same sex partner was legally ineffective, since if the adoption order were made the same sex partner of the mother would achieve parental rights, but in place of the natural mother, leaving the legal relationship of the absent father to the child unaltered.
+Conversely, second parent adoption by the different sex partner of the natural parent was effective.
+The claimants in that case were scrupulous in limiting their complaint about Austrian law to the resultant difference of treatment between, on the one hand, a different sex unmarried couple and, on the other, a same sex unmarried couple such as themselves.
+They disclaimed any complaint about any different treatment as between married couples and unmarried couples, which the court had previously found to be within the margin of state appreciation: see Gas & Dubois v France [2014] 59 EHRR 22. 144.
+The court decided the case on the grounds advanced by the claimants.
+The discrimination between different sex couples and same sex couples was based upon sexual orientation alone.
+Where such discrimination is in question, the margin of appreciation is narrow and proportionality requires not merely that the measure in question pursues a legitimate aim but also that it is necessary: see paras 140 141.
+The relevant Convention rights to which the derivative article 14 claim to discrimination was attached were the article 8 rights of all three people, the mother, her partner and the child.
+In the absence of any evidence submitted to suggest that a child was generally better brought up by a different sex couple than by a same sex couple, there was no justification for the different treatment as between such couples.
+The court adopted its usual practice of setting out international instruments in the field, and thus included article 3(1) UNCRC.
+The decision in question (adoption) related directly to the upbringing of the child.
+It is unsurprising that the court referred (somewhat in passing) at para 146 to the fact that its conclusion was also more in keeping with the best interests of the child, which it noted to be a key notion in the relevant international instruments.
+It might have added that in the great majority of developed states there is consensus that questions of a childs upbringing must be determined by his or her best interests or welfare as the dominant or paramount consideration: in England this principle is long established law and now encapsulated in section 1(1) of the Children Act 1989. 145.
+At its highest, this decision is another in which the UNCRC is referred to as relevant to the content of article 8 rights, and thus to the issue of justification for discrimination in relation to such rights.
+That is a very long way from saying that article 3(1) is relevant to justification upon any kind of discrimination issue, whether or not the decision is about the childs upbringing, and whether or not either the ECHR rights of the child or article 8 rights of his family are at stake.
+Such issues simply did not arise in X v Austria. 146.
+If the rights in question are the A1P1 property rights of women, and their associated derivative right not to be discriminated against in relation to those rights, it is an impermissible step further to say that there is any interpretation of those rights which article 3 UNCRC can inform.
+In the case of article 8, the childrens interests are part of the substantive right of the parent which is protected, namely respect for her family life.
+In the case of A1P1 coupled with article 14, the childrens interests may well be affected (as here), but they are not part of the womans substantive right which is protected, namely the right to be free from discrimination in relation to her property.
+There is no question of interpreting that article 14 right by reference to the childrens interests.
+The protected right to respect for family life under article 8 is entirely different from the protected right to property under A1P1.
+Nor can the article 8 rights of the child be said to be in need of interpretation when it is clear for the reasons given in all the judgments that they are not infringed.
+The necessary connection between the ECHR right under consideration and the international instrument is not present.
+That can be seen by considering the position of the appropriate comparator, namely a lone non working father with the same children and household outgoings.
+The interests of the children would be exactly the same in his case, but he would have no article 14 claim to discrimination. 147.
+I also agree that to treat failure to comply with article 3(1) UNCRC as determinative of the present case would be tantamount to departing from the Stec test for justification which has been agreed on all sides throughout this litigation.
+Was there a breach of article 3 UNCRC? 148.
+It is unnecessary to decide this question, but I ought to say that in my view it is clear that there was in any event no breach of article 3. 149.
+The language of article 3(1) does give rise to some difficulty.
+It is in these terms: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
+This departs from the formulation of the paramountcy principle for decisions about the upbringing of a child, or for legislation designed for the protection/advancement of children, mentioned at para 142 above.
+This paramountcy formulation is employed in the UNCRC but only in relation to one kind of upbringing decision, namely adoption (article 21).
+The different language of article 3(1) begs two important questions: (a) what is the extent of the expression actions concerning children; and (b) what is the meaning of a primary consideration 150.
+It might be thought that article 3 was intended to apply to decisions directly about a child, or perhaps to those and to others directly affecting him, such as for example decisions relating to the provision of education or child support facilities, and that a primary consideration therefore imports some priority for the best interests of children even if short of making them determinative, as the paramountcy principle does.
+That might perhaps be suggested by article 3(3) which clearly is specific to the care and protection of children, while article 3(2), which requires states to take appropriate legislative and administrative measures to ensure that the child has such protection and care as is necessary for his well being, is also perfectly consistent with this.
+This is not, however, the view taken in General Comment 14, adopted by the UN Committee on the Rights of the Child at its 2013 session, referred to by Lord Carnwath at para 105, and foreshadowed by earlier similar documents. 151.
+That Comment suggests (at para 19) that article 3 extends well beyond decisions directly about children to those which indirectly affect either individual children or children in general, eg related to the environment, housing or transport.
+If the meaning of article 3(1) is as broad as this, then all manner of court decisions may fall within it; a planning decision relating to housing development might be one, whilst the making of a possession order against a tenant who has children, or the enforcement of money judgments against the family motor car, or the sentencing of him for a serious criminal offence might be others. 152.
+Pace Lord Carnwath, I do not take it as read that the Committees views, although entitled to careful consideration coming from the source that they do, can be regarded as binding upon party States as to the meaning of the treaty to which they agreed.
+But it is neither necessary nor appropriate to attempt to resolve these issues in this case, especially since we heard no argument upon them.
+All that needs to be said is that it is clear that the wider the reach of the concept of decisions concerning either an individual child or children in general, the less possible it is to impose the best interests of such child or children as a determinative or even priority factor over the frequently complex legal or socio economic considerations which govern such decisions.
+The committees general comment gives some acknowledgement to this problem in, for example, para 20, which recognises that although all State actions may affect children, a full and formal process of assessing their best interests is not called for in every case, and in para 32 where it is stated that the concept of the childs best interests is flexible and adaptable. 153.
+The Committees General Comment also realistically recognises that the relevant best interests of children will, in relation to decisions which are not simply about identified individual children, include those of children generally.
+This is apparent throughout the document, including in those passages from para 102 cited by Lord Carnwath.
+I respectfully agree with Lady Hale that where article 3(1) applies it is not enough to consider only the interests of children generally, without also evaluating the interests of any likely to be particularly affected by the legislation in prospect, but the converse is also true.
+It is obvious that in the context of this kind of socio economic legislation, there will be a tension between, on the one hand, the interests of children generally in promoting the legitimate aims of reducing a culture of benefit dependency and encouraging work and, on the other, the special interests of those children most likely to suffer an adverse effect of the cap, such as the present appellants.
+This is realistically recognised by the UN Committee in, for example, para 32 of the Comment, which reads: The concept of the child's best interests is complex and its content must be determined on a case by case basis.
+It is through the interpretation and implementation of article 3, paragraph 1, in line with the other provisions of the Convention, that the legislator, judge, administrative, social or educational authority will be able to clarify the concept and make concrete use thereof.
+Accordingly, the concept of the child's best interests is flexible and adaptable.
+It should be adjusted and defined on an individual basis, according to the specific situation of the child or children concerned, taking into consideration their personal context, situation and needs.
+For individual decisions, the child's best interests must be assessed and determined in light of the specific circumstances of the particular child.
+For collective decisions such as by the legislator the best interests of children in general must be assessed and determined in light of the circumstances of the particular group and/or children in general.
+In both cases, assessment and determination should be carried out with full respect for the rights contained in the Convention and its Optional Protocols. (emphasis supplied) 154.
+Whilst the appellants in the present case relied upon article 3(1) as substantive and not merely procedural they did not analyse the extent to which it was asserted that priority ought to be given to childrens best interests, still less the interests of which children.
+Their chief reliance was upon the suggested failure of the Secretary of State properly to have analysed and considered the best interests of children.
+Relying upon paragraph 6 of the UN Committees General Comment, the principal submission of Mr Wise QC was that the article 3 obligation required (a) careful consideration of how many children will be or are likely to be affected by the cap, (b) asking what the effect on those children particularly affected by it would be, (c) asking whether the cap could be implemented in a manner protecting such children from adverse effects, and (d) asking whether the general proposition that the cap will lift children out of welfare dependency outweighs the risk to those particularly affected. 155.
+Like both courts below I regard it as plain that the Secretary of State did not fail to undertake all these exercises.
+There was the fullest public debate about not only the concept of the cap but its proposed details.
+This country has four Childrens Commissioners, charged with the duty of monitoring childrens interests and advocating them publicly.
+All participated in the debate and made strongly the case now made by the appellants that the general benefits to families and children which would be brought by the cap were outweighed by the likely adverse consequences for particular children in situations exactly like those of the present appellants.
+The two Impact Assessments and the Equality Impact Assessment written by the Government recorded the likely adverse consequences for children such as these, in particular those in larger one parent families living in high rent areas.
+The Parliamentary debate on the detailed proposals returned time and again to this topic.
+There was a specific proposal, supported by the House of Lords, to amend the Bill by excluding child benefit from the cap, which, as Lady Hale observes, would no doubt remove the adverse impact on the appellants here relied upon; this proposal was considered but rejected by the House of Commons and withdrawn in consequence by the House of Lords.
+The Secretary of State concluded, and still concludes, that to do this would drive a coach and horses through the whole policy.
+The evidence could not really be clearer that the Secretary of State did indeed ask the questions which Mr Wise contends are required by article 3 UNCRC.
+The appellants real complaint is that he reached what they say is the wrong value judgment when it came to balancing the interests of children (and society) in general against those of particular children likely to suffer adverse effects from the cap.
+Reasonable people may well either agree or disagree with this value judgment, but to say that one disagrees is not the same as saying that the decision is unlawful.
+LADY HALE: 156.
+The benefit cap is one of a package of measures provided for in the Welfare Reform Act 2012.
+The total amount of benefit to which a couple or a single person is entitled is capped at a prescribed sum, irrespective of how much they would otherwise be entitled to.
+The bare bones of the scheme are provided for in the 2012 Act, but its detailed implementation is contained in the Benefit Cap (Housing Benefit) Regulations 2012. 157.
+The appellants do not challenge the compatibility of the Act with their rights under the European Convention on Human Rights, but they do challenge the compatibility of the way in which it has been implemented by the 2012 Regulations.
+They argue that it has a disproportionate impact upon lone parents and upon the victims of domestic violence; both groups are predominantly, although not exclusively, composed of women; hence the scheme is indirectly discriminatory on grounds of sex.
+As the scheme falls within the ambit of the protection of property rights in article 1 of the First Protocol to the Convention, this violates their right, under article 14 of the Convention, to enjoy such rights without discrimination unless it can be justified.
+The Secretary of State accepts that the scheme falls within the ambit of article 1 of the First Protocol and that it is indirectly discriminatory against lone parents and thus against women.
+The question, therefore, is whether it can be justified.
+A further question, which has only emerged after the hearing in April 2014, is the extent to which, if at all, the obligations of the United Kingdom under the United Nations Convention on the Rights of the Child is relevant to that issue. 158.
+Both the Divisional Court and the Court of Appeal held that it can be justified: [2013] EWHC 3350 (QB) and [2014] EWCA Civ 156.
+This raises several questions: whether the justification advanced relates to the scheme as a whole rather than to its discriminatory effect; what is the test to be applied in deciding whether the discrimination is justified; and what is the part played by the international obligations of the United Kingdom under the United Nations Convention on the Rights of the Child in assessing that. 159.
+The benefit cap is, of course, quintessentially a matter of social and economic policy.
+In such matters, as Lord Hope of Craighead observed in R v DPP, Ex p Kebilene [2000] 2 AC 326, at p 381, it will be easier for the courts to recognise a discretionary area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention.
+As Lord Reed explains, the introduction of the cap was indeed extensively debated in Parliament and various amendments were proposed and resisted which would have mitigated the adverse effects with which we are here concerned.
+But the details of the scheme, including those adverse effects, were deliberately left to be worked out in regulations.
+It is therefore the decisions of the Government in working out those details, rather than the decisions of Parliament in passing the legislation, with which we are concerned. 160.
+Furthermore, as Lord Hope went on to say in In re G (Adoption: Unmarried Couple) [2009] 1 AC 173, para 48, protection against discrimination, even in an area of social and economic policy, falls within the constitutional responsibility of the courts: Cases about discrimination in an area of social policy, which is what this case is, will always be appropriate for judicial scrutiny.
+The constitutional responsibility in this area of our law resides with the courts.
+The more contentious the issue is, the greater the risk is that some people will be discriminated against in ways that engage their Convention rights.
+It is for the courts to see that this does not happen.
+It is with them that the ultimate safeguard against discrimination rests.
+Therefore, even in the area of welfare benefits, where the court would normally defer to the considered decision of the legislature, if that decision results in unjustified discrimination, then it is the duty of the courts to say so.
+In many cases, the result will be to leave it to the legislature to decide how the matter is to be put right.
+The scheme 161.
+It is not necessary to go into the scheme in great detail, but it is necessary to understand the essentials.
+Section 96(1) of the Act provides that Regulations may provide for a benefit cap to be applied to the welfare benefits to which a single person or couple is entitled.
+Section 96(2) provides that where their total entitlement to welfare benefits exceeds the relevant amount, their entitlement is reduced by the amount of the excess.
+This is the cap.
+The relevant amount is to be specified in Regulations (section 96(5)), but is to be determined by reference to estimated average earnings (section 96(6)).
+By this is meant the amount which, in the opinion of the Secretary of State, represents at any time the average weekly earnings of a working household in Great Britain after deductions in respect of tax and national insurance contributions (section 96(7)).
+Welfare benefits means any benefit, allowance, payment or credit prescribed in regulations (section 96(10)); but retirement pensions and state pension credit may not be prescribed (section 96(11)).
+Regulations may also provide for exceptions to the application of the cap (section 96(4)(c)) and also for the benefit or benefits from which the reduction is to be made (section 96(4)(b)). 162.
+Thus it will be seen that all the details of the scheme are to be covered in the regulations.
+The only principle required by the Act, should the Government decide to introduce a cap at all, is that it is set by reference to average weekly earnings net of tax and national insurance contributions.
+This, as Mr Holmes, the lead official in the Department of Work and Pensions responsible for the benefit cap policy, points out, produces a much higher figure than would be produced by working 40 hours a week for the minimum wage or even the London living wage.
+But the Government was left a free hand in deciding what working age benefits would count towards the cap. 163.
+In fact, the cap operates by way of a deduction from housing benefit.
+Hence the 2012 Regulations amend the Housing Benefit Regulations 2006, principally by introducing a new Part 8A, entitled Benefit cap.
+The relevant amount is set at 350 for a single claimant (without dependent children) and 500 for all other claimants (that is, couples and lone parents with dependent children) (regulation 75G).
+This is the equivalent of a gross annual salary of 35,000 a year and 26,000 net.
+A long list of welfare benefits is prescribed, most importantly for our purposes including housing benefit, child benefit and child tax credit (regulation 75G).
+Once the cap is reached, therefore, no account is taken of the number of children in the family.
+On the other hand, the benefit cap does not apply at all where the claimant, the claimants partner or a child or young person for whom either is responsible is receiving any of a long list of benefits; these are mainly disability related but include a war pension (regulation 75F). 164.
+The cap does not apply at all where the claimant is, or the claimant and her partner are jointly, entitled to working tax credit (regulation 75E(1), (2)).
+This effectively exempts most working households from the cap; the rules are complicated, but a lone parent responsible for a child would qualify for working tax credit if she worked at least 16 hours a week, while a couple responsible for a child would qualify if they worked a total of 24 hours a week, as long as one of them worked for at least 16 hours a week; the normal requirement is 30 hours work a week (Working Tax Credit (Entitlement and Maximum Rate)) Regulations 2002, regulation 4, as amended by the Tax Credits (Miscellaneous Amendments) Regulations 2012, regulation 2).
+Not only that, if the claimant or her partner have been employed or engaged in work for payment for 50 out of the preceding 52 weeks, the benefit cap will not apply for 39 weeks from their last day of work (regulation 75E(1), (3) (5)).
+This gives a period of grace in which to find another job or to move house. 165.
+The final regulation which is relevant for our purposes is that which provides, in effect, that the housing benefit payable for what is now (following a recent amendment) to be termed specified accommodation is disregarded (regulation 75C(2)(a)).
+The amendment means that womens refuges are now covered, whereas previously many of them were not.
+However, there is no comparable exemption for housing benefit paid in respect of temporary accommodation provided under the homelessness provisions of Part 7 of the Housing Act 1996. 166.
+The benefit cap was introduced in April 2013 in four London boroughs, rolled out in July 2013 to a further 335 local authorities and in August 2013 to the remaining 40 authorities in England, Wales and Scotland.
+It has not yet been implemented in Northern Ireland.
+Between April 2013 and January 2014, a total of 38,655 households were capped, 47% of these in London and the vast majority in England. 167.
+As Elias LJ, giving the judgment of the Divisional Court, observed at [2013] EWHC 3350 (Admin), para 11, It was obvious from the outset that the introduction of the cap would have severe and immediate consequences for claimants who had been receiving substantially in excess of the relevant amount.
+To mitigate this, the Government provided additional funds to local authorities to enable them to make discretionary housing payments (DHPs) to claimants affected by the cap (along with the other purposes for which such payments may be made).
+This was specifically intended as a short term solution where transitional help was necessary and not as a long term solution to the needs generated by the cap (see Holmes, Witness Statement No 1, para 130). 168.
+Elias LJ continued, at para 12: The two items most likely to trigger the operation of the cap [are] housing benefit [and] the number of children in the family.
+Housing benefit reflects (but does not necessarily meet in full) the cost of housing, whether social or private.
+Accordingly, the cap will bear most heavily on those in receipt of benefit who live in areas where rental costs are high.
+In practical terms, therefore, this means that those who live in London or in the centre of other big cities where rents tend to be high will be most likely to be affected.
+It is a striking feature of the scheme and lies at the heart of this application that the cap applies equally to a childless couple in an area with cheap and plentiful social housing as it does to a lone parent mother of several children in inner London compelled to rent on the private market.
+The appellants circumstances 169.
+The four appellants are the lone mother and her youngest child in two families (a third family has now withdrawn from the case as the cap no longer applies to them).
+The following evidence of their circumstances was before the court when the case was heard in April 2014. 170.
+Ms SG and her family live in Stamford Hill, North London.
+This is important because they are members of a particular orthodox Jewish sect.
+The school age children attend a local Jewish school, kosher food is readily available (but expensive) in the local shops, they can walk to the synagogue and there is a support network of family and friends there.
+Their lone mother has six children in all, but only three of them live with her: a son now aged four, a daughter now aged seven and another daughter now aged nine.
+The family used to live in Belgium, but SG left her husband and came to live near her relatives in Stamford Hill in order to escape from her husbands abusive behaviour towards her and their eldest daughter, now aged 18.
+The daughter was made a ward of court to prevent her father removing her from this country.
+Because of her behavioural and psychological difficulties she was placed by the local authority in foster care within the same community.
+She has since married but still lives locally and relies heavily upon her mother for support.
+The oldest son studies in a yeshiva abroad and is unlikely to rejoin the family, but there are currently proceedings in Belgium about the residence of the second son, now aged 12, whom his mother earnestly hopes can return to live with the family in London. 171.
+The family live in a two bedroomed flat rented from a private landlord.
+This is already too small for them and would be quite unsuitable were the 12 year old boy to come and live with the family again.
+When these proceedings began, the rent was 300 per week, but the landlord was proposing to put it up.
+They were entitled to 289.20 housing benefit, 71.70 income support for SG, 167.30 Child Tax Credit (all means tested benefits), and 47.10 child benefit.
+Hence their total benefit entitlement before the cap was 575.30 a week.
+The cap has therefore resulted in a reduction of 75.30 in their weekly income.
+The landlord has notified an increase in her rent to 420 from 31 January 2014, which would leave them with only 80 to live on. 172.
+The Secretary of State correctly points out that housing benefit would not in any event meet such a high rent in full (because it exceeds the local housing allowance limit for that part of London).
+He also argues that there are cheaper two bedroomed flats available in the area, but the appellants dispute this.
+We are not in a position to resolve such factual disputes.
+However, it is obvious that SG has very good reasons for wanting to continue to live in Stamford Hill, that accommodation there is in short supply because of demand from the local community, and that if she does stay there her weekly income will fall well below that which the State deems necessary for her and her three young children to live on. 173.
+For a time, she did have part time work for 16 hours a week and thus the benefit cap did not apply.
+But she was unable to sustain this, owing to the demands of the court proceedings relating to her children, both here and in Belgium, and the need to care for the younger children.
+The 39 week grace period expired in November 2013, since when her benefits have been capped.
+She has been receiving a discretionary housing payment to meet the shortfall between her rent and her housing benefit, but only until 30 June 2014, when it was due to be reviewed having regard to the steps she has taken to avoid the cap. 174.
+Mrs NS is also the lone mother of three children, daughters now aged 4, 11 and 12.
+There is a long history of sexual abuse and domestic violence within her marriage, much of it witnessed by the children.
+She had left her husband to stay in a womens refuge with the children on two previous occasions before their final separation in December 2012.
+After a period in unsuitable accommodation, she obtained orders excluding her husband from the family home, and returned there with the children in April 2013.
+Her husband is prohibited from contacting the family there, but last summer they had to turn to him for help with transport when one child suffered an accident requiring surgery and the other two became ill.
+NS is concerned that the local childrens services authority will consider her children to be at risk of harm if they have contact with their father. 175.
+Their home is also a two bedroomed flat rented from a private landlord.
+It is also too small for them but is close to the childrens schools.
+The rent is 270 a week.
+She is entitled to 270 housing benefit, 71.70 income support for NS, child tax credit for the children of 166.94 (although she says that she gets only 162.44), and child benefit of 47.10.
+Her total entitlement therefore should amount to 555.74 (although she says that she gets only 550.44).
+Whichever it is, the cap reduces it to 500. 176.
+NS was awarded discretionary housing payments, but only after a delay during which arrears accrued to her rent account, and only until 31 March 2014.
+The local authority has yet to decide upon its DHP budget for this year and so she does not know whether or not she will get it.
+She is of course concerned that the landlord may seek to evict her if she falls into arrears. 177.
+NS did not work outside the home during her marriage, nor has she done so since it ended.
+She was allowed very little freedom by her husband and speaks very little English.
+Why is the scheme discriminatory? 178.
+It is common ground that the scheme falls within the ambit of article 1 of the First Protocol, which protects the right to peaceful enjoyment of possessions.
+Possessions for this purpose includes entitlement to welfare benefits, not only those which have been paid for by national insurance contributions, but also those which the State provides on a non contributory basis to supply its people with the basic necessities of life.
+As the Strasbourg court explained in Stec v United Kingdom (2006) 43 EHRR 1017, para 53: Article 1 of protocol No 1 does not include a right to acquire property.
+It places no restriction on the Contracting States freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme.
+If, however, a state does decide to create a benefits or pension scheme, it must do so in a manner which is compatible with article 14 of the Convention. 179.
+It has not been argued that the benefit cap is itself a violation of article 1 of the First Protocol, on the basis that it deprives affected households of the benefits to which they would be entitled under the usual rules relating to needs related welfare benefits.
+Instead, it is argued that it violates article 14, which provides that the enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex .
+It is not suggested that the scheme is directly discriminatory against women, as it affects all benefit claimants in the same way, irrespective of their sex.
+However, as the Divisional Court observed, It is clear, and indeed conceded, that the benefit cap has a disproportionate adverse impact on women (para 71).
+This brings it within the concept of indirect discrimination, which was recognised by the Grand Chamber of the European Court of Human Rights in DH v Czech Republic (2007) 47 EHRR 59, at para 175 (see also para 184): The court has also accepted that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group, and that discrimination potentially contrary to the Convention may result from a de facto situation.
+The court had earlier recognised the same concept in the cases of Jordan v United Kingdom (2001) 37 EHRR 52, at para 154, and Hoogendijk v Netherlands (2005) 40 EHRR SE 189, at p 207. 180.
+The prejudicial effect of the cap is obvious and stark.
+It breaks the link between benefit and need.
+Claimants affected by the cap will, by definition, not receive the sums of money which the state deems necessary for them adequately to house, feed, clothe and warm themselves and their children.
+Furthermore, the greater the need, the greater the adverse effect.
+The more children there are in a family, the less each of them will have to live on.
+Ms SG, for example, will receive no more benefit if her 12 year old son rejoins the family, even though a court (either here or in Belgium) has decided that it is in his best interests to do so.
+This prejudicial effect has a disproportionate impact upon lone parents, the great majority of whom are women, and is also said to have such an impact upon victims of domestic violence, most of whom are also women. 181.
+The disproportionate impact upon lone parents is relatively straightforward to explain.
+The relevant comparison is between those housing benefit claimants who are, and those who are not, affected by the benefit cap.
+Lone parents constitute around 24% of all claimants for housing benefit, but have so far constituted between 59% and 74% of those affected by the cap.
+This is more than double their proportion in the housing benefit population as a whole.
+Overall some 92% of lone parents are women.
+Hence it is not surprising that the Government predicted, in its first Equality Impact Assessment of the Benefit Cap (March 2011, para 27), that single women, mostly lone parents, would constitute 60% of those affected. 182.
+The reasons for this are fairly obvious.
+It is much more difficult for lone parents to move into paid employment, even for the 16 hours which would take them out of the cap.
+It is more difficult for them to do so, the more children they have, because of the problems of delivering and collecting children from different schools or day care placements, the problems of making appropriate day care arrangements for very young children and for all children during the school holidays, the problems of responding to their childrens illnesses, accidents and to casual school closures.
+The more children they have, the harder it will be for them to move into work; and the more children they have, the harsher will be the effects of the cap.
+These problems arise irrespective of the ages of the children, but are obviously more acute when any or all of them are under school age. 183.
+The disproportionate effect which the cap is said to have upon victims of domestic violence, most of whom will also be parents, is a little more complicated.
+It stems from the limited options available to victims who wish to escape, with their children, from the violence and abuse which they are suffering at home.
+Some victims are fortunate enough to be able to stay in their own homes while the perpetrator either agrees or is ordered to leave and having done so can be relied upon to stay away.
+But many are not so fortunate.
+Their only way of escaping the violence, at least in the first instance, is to leave home.
+If they go to a refuge, the problem is that the costs may easily take them over the cap.
+Under the original scheme, some refuges counted as exempt accommodation, which effectively created an exception to the cap, but many did not.
+Very recently, the Government has addressed this, by amendments which will create an exception for all refuges. 184.
+But not all victims can go to a refuge.
+Their other alternative is to apply to the local authority for accommodation under the homelessness provisions of Part 7 of the Housing Act 1996.
+Unlike the cost of refuges, the cost of other types of temporary accommodation is not exempt.
+Temporary accommodation is often in the private sector and much more expensive than permanent accommodation in social or other forms of affordable housing.
+Furthermore, as the intervention from Shelter makes clear, a homeless person has very little choice about where she is housed.
+She has to accept any offer of suitable accommodation or risk becoming literally without a home (and even having her children taken away from her as a result).
+In areas of high housing need, families may stay for a very long time in so called temporary accommodation before affordable permanent housing becomes available. 185.
+Some of these victims will want to keep open the possibility of returning to the family home, or securing a transfer, once the family court has decided who is to live there.
+Hence, very sensibly, the housing benefit scheme provides that in certain circumstances councils may continue to pay benefits in respect of two homes for a certain length of time (Housing Benefit Regulations 2006, regulation 7(6)(a)).
+But this, of course, means that the total amount of housing benefit, when taken together with other benefits, will take the claimant over the limit where the cap applies. 186.
+Thus, even with the recent change relating to refuges, the effect of the cap is to undermine the humane treatment given to victims of domestic violence both by the homelessness regime and by the housing benefit scheme.
+However, although both of the families whose cases are before us have suffered from domestic violence and abuse, they have not suffered these particular adverse effects (we do not know whether Mrs NSs family was in receipt of dual housing payments between December 2012 and April 2013, but in any event that was before the cap came into force), nor do they claim to be at risk of suffering them in the future.
+For this reason, the Divisional Court and the Court of Appeal declined to decide whether the cap did have a disproportionate effect upon the victims of domestic violence.
+Mr Wise QC, for the appellants, complains that they should have done so.
+The appellants have both suffered domestic violence and abuse and Mrs NS might well have to flee to expensive temporary accommodation while wishing to retain the family home should her husband once again try to assert his control over her. 187.
+In my view, however, the problems suffered by the victims of domestic violence are principally suffered because they are parents who have every reason to separate from the other adult in the household, not only for their own sake but also for the sake of their children.
+Of course, there may be some victims of domestic violence who are not responsible for the care of children, but it has not been shown how likely it is that they will be affected by the cap or how difficult they would find it to escape its adverse impact.
+I would therefore treat the victims of domestic violence as a subset of lone parents, who may be more likely to be affected by the cap because of the high cost of temporary accommodation and the dual payments problem, and who will have the same problems in escaping its effects.
+How is the discrimination justified? 188.
+The applicable principles are set out in the Grand Chamber judgment in Stec v United Kingdom (2006) 43 EHRR 1017, para 51: Article 14 does not prohibit a Member State from treating groups differently in order to correct factual inequalities between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the article.
+A difference in treatment is, however, discriminatory if it has no objective and reasonable justification; in order 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.
+The Contracting state enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment.
+Two points are clear from this.
+The first is that it is not the scheme as a whole which has to be justified but its discriminatory effect: see A v Secretary of State for the Home Department [2005] 2 AC 68, per Lord Bingham at para 68; AL (Serbia) v Secretary of State for the Home Department [2008] 1 WLR 1434, per Baroness Hale at para 38.
+It is not enough for the Government to explain why they brought in a benefit cap scheme.
+That can readily be understood.
+They have to explain why they brought in the scheme in a way which has disproportionately adverse effects upon women. 189.
+However, it is important to understand that what is needed to justify indirect discrimination is different from what is needed to justify direct discrimination.
+In direct discrimination, it is necessary to justify treating women differently from men.
+In indirect discrimination, by definition, women and men are treated in the same way.
+The measure in question is neutral on its face.
+It is not (necessarily) targeted at women or intended to treat them less favourably than men.
+Men also suffer from it.
+But women are disproportionally affected, either because there are many more of them affected by it than men, or because they will find it harder to comply with it.
+It is therefore the measure itself which has to be justified, rather than the fact that women are disproportionately affected by it.
+The classic example is a maximum age bar on recruitment to particular posts; it applies to all candidates, women and men; but it disadvantages women because they are more likely to have taken a career break to have or care for children than are men.
+The question therefore is whether the age bar can be independently justified.
+This long standing position is reflected in the definition of indirect discrimination in section 19 of the Equality Act 2010.
+It was also the approach of the Strasbourg court in Hoogendijk v Netherlands (2005) 40 EHRR SE 189, a case of indirect discrimination in relation to welfare benefits. 190.
+Turning to the explanations offered for the cap, it is important to recognise that the Government has never claimed that its aim is to encourage claimants to limit the size of their families or to penalise those who already have large families (had they done so, they might perhaps have faced discrimination claims on other grounds).
+The evidence before the court is contained in two witness statements from Mr Holmes.
+He states that the Government had three specific aims in introducing the benefit cap: (i) (ii) to introduce greater fairness in the welfare system between those receiving out of work benefits and tax payers in employment; to make financial savings (anticipated to be 110m in 2013/14 and 185m in 2014/15) and more broadly, help make the system more affordable by incentivising behaviours that reduce long term dependency on benefits; and (iii) to increase incentives to work.
+This is later described as the main aim of the policy (Holmes, Witness Statement No 1, para 107).
+To a great extent, these objectives overlap, as the principal aim is to make being in work more attractive than being out of work, to encourage people into work, and to reduce long term dependence on benefits, thus not only saving public money but also improving the long term future of these families.
+No one can seriously doubt that these are legitimate aims which would probably be supported by most of the population.
+The question, however, is whether these reasons for bringing in the cap can justify the sex discrimination involved in the way in which it has been implemented.
+Before turning to that question, however, it is worth examining the criticisms made of each of the objectives claimed. (i) Fairness 191.
+It is accepted that achieving fairness between those in work and those out of work is a legitimate aim.
+As Elias LJ recognised, the fairness concept has sometimes been justified by relying on the notion that those on benefit should face difficult decisions of the kind facing those in work (para 94).
+But there are many different ways of defining such fairness.
+It could be that a family on benefits should never be better off than a working family of the same size living in the same accommodation.
+It could be that a family on benefits should always be worse off than the equivalent working family.
+Or it could be that a family on benefits should always be much worse off than the equivalent working family. 192.
+The criticism levelled at the Governments concept of fairness, in particular in the intervention from the Child Poverty Action Group, is that the benefit cap scheme as implemented does not compare like with like.
+It compares the maximum level of benefit with average earnings, thus ignoring the benefits which are also available to people who are in work.
+CPAG have produced tables (not challenged in these proceedings) comparing the income available to each of the appellant families according to whether they are (a) not working but without the cap, (b) working 16 hours per week on the minimum wage, (c) working for average household earnings, and (d) working 35 hours a week for the minimum wage.
+These show that both Ms SG and her children and Mrs NS and her children would be (in round figures) 94 a week better off in scenario (b) than in scenario (a), 163 better off in scenario (c), and 122 better off in scenario (d).
+In other words, they would always be significantly better off in work than not in work.
+CPAG have also produced tables which show that this would also be the case wherever in the country these families were living.
+The effect of the cap is simply to increase the differential which is already there. 193.
+Thus, it is said, there was no need to introduce the benefit cap in order to ensure that families on benefit have to make the same difficult choices that working families have to make.
+They already do have to make those choices.
+If this is so, the focus shifts to the other two objectives. (ii) Saving public money 194.
+The savings projected by the Treasury in the 2013 budget were 110m in 2013 2014 and 185m in 2014/15.
+These did not take into account the possible implementation costs or the additional funding made available for DHPs of 65m and 35m respectively.
+On the other hand, nor did they take into account any resulting behavioural changes.
+The aim was not merely to make savings in the short term but to produce a positive cultural shift (Holmes, Witness Statement No 2, para 36). 195.
+It has to be accepted that the savings made are a drop in the ocean compared with the total benefit bill, let alone the total housing benefit bill.
+The Government predicted that only 1% of housing benefit claimants would be affected by the cap.
+In May 2013, there were approximately five million housing benefit claimants, yet in January 2014 there were less than 28,000 households subject to the cap, not much over half a percent of all claimants.
+Lone parents subject to the cap were 1.37% of all claimants (further demonstrating that they are disproportionately affected). 196.
+However, the main argument made against this aim is that, standing alone, it is not sufficient to justify discriminatory treatment in the enjoyment of a convention right.
+The authority cited for this proposition is OBrien v Ministry of Justice [2013] UKSC 6, [2013] 1 WLR 522.
+This was a case about discrimination between full time and part time workers, which is prohibited by the Framework Agreement on Part time Work, annexed to Council Directive 97/81/EC. 197.
+However, in Andrejeva v Latvia (2009) 51 EHRR 650, the Strasbourg court accepted that the protection of the countrys economic system is a legitimate aim which is broadly compatible with the general objectives of the Convention (para 86).
+They therefore looked to see whether there was a reasonable relationship of proportionality between that legitimate aim and the means employed.
+As the discrimination in that case was based solely on nationality, for which very weighty reasons would be required for compatibility with the Convention, the court held that it was not justified (paras 87 88).
+The same would apply to sex discrimination.
+If the state introduces a benefit, for example for older people, but denies it to women on the basis that this will save money, this would be contrary to article 14 read with article 1 of the First Protocol, unless there were some other justification for the difference in treatment.
+The court found such a justification in Stec, because the difference complained of was the result of the difference between the retirement ages of men and women, itself a response to the disadvantage suffered by women in the workplace.
+This brings the focus back to the proportionality of any discrimination involved in a money saving measure. 198.
+Mr Holmes also refers in his evidence to a clear, simple message that there has to be a maximum level of financial support beyond which claimants cannot expect the state to provide (Witness Statement No 1, para 98) and one of the key drivers for introducing the cap, that ultimately there has to be a limit to the overall amount of financial support that households in receipt of out of work benefits can expect to receive in welfare payments (para 104).
+However, it is difficult to see how the delivery of such a message can be an aim in itself if the message is the product of a measure which cannot be justified. (iii) Incentivising work and promoting long term behavioural change 199.
+On analysis, it is therefore said, the Governments aims come down to incentivising work and promoting long term behavioural change.
+Again, no one doubts that these are legitimate aims, not only in order to save public money but also, as Mr Holmes put it, to achieve long term positive behavioural effects by changing attitudes to welfare and work and encouraging responsible life choices, which will benefit adults and children alike (Witness Statement No 1, para 121).
+Put another way, it is not good for children to grow up in a household which is wholly supported by the state, if thereby they absorb the message that there will be no need for them to support themselves when they grow up. 200.
+However, the Government has accepted that certain people should not be expected to seek work in order to escape the cap.
+Thus retirement pension and state pension credit are not taken into account because the policy is primarily a work incentive aimed at people of working age (Holmes, Witness Statement No 1, para 100).
+Thus also the cost of supported accommodation is not taken into account because households in supported accommodation are likely to be in vulnerable situations and they will not generally be in a position to make quickly the behavioural changes required to remove themselves from the cap (para 105).
+Thus also the disability related exemptions mean that the cap will not apply to people who are least likely to be able to work and who perhaps have the least scope to adjust their circumstances to improve their employment prospects (para 112).
+Lone parents of children under five are also not expected to seek work, but they are subject to the cap. 201.
+As well as moving into work, the other choices the Government wished to encourage as a way of avoiding the cap included persuading the landlord to take less rent, moving to cheaper accommodation, reducing expenditure on non housing items, and in the case of lone parents seeking child maintenance from the other parent, which is wholly disregarded for the purpose of the cap (Holmes, Witness Statement No 1, para 124). 202.
+Against this, both the appellants and the interveners argue that these expectations are simply unrealistic in the case of the families of lone parents and victims of domestic violence, upon whom the policy has such an adverse effect.
+For the reasons already mentioned, lone parents, especially those with more than one child, find it particularly difficult to obtain even part time work which will fit in with their child care responsibilities.
+It is accepted, of course, that there are some lone parents, even of very young children, who do manage to do this.
+Adequate and subsidised day care is now more readily available.
+But it is unrealistic to assume that parents will always be able to find acceptable solutions without prejudice to their childrens welfare.
+The Government accepts that lone parents of children under five should not be expected to look for work, no doubt partly because of the difficulties of finding acceptable and affordable child care, but perhaps also because many parents and child care professionals consider it better for very young children to have the full time loving care of a committed parent rather than be separated from them and placed in institutional settings, however competent, for a large part of the day.
+Even if we accept that it is justifiable to deny this choice to those lone parents who are subject to the benefit cap, we should not accept that their childrens welfare should be put at risk by their having to make unsatisfactory child care arrangements or (as in the case of Mrs NS) to rely upon assistance from a violent partner which the local childrens services authority fears may put the children at risk. 203.
+Nor is it realistic to assume that they will eventually be able to move to cheaper accommodation.
+Many private landlords, particularly in the more expensive areas, are unwilling to take tenants who are dependent on housing benefit.
+In any event, they will require deposits and rent in advance, which the family will not be able to afford (unless they can persuade the local childrens services authority to help out under section 17 of the Children Act 1989).
+Social housing is in short supply, with long waiting lists which may well require a qualifying period of residence in the area before a person is even placed on the list.
+The allocation criteria under Part 6 of the Housing Act 1996 do give preference to those homeless families to whom the full housing duty is owed under Part 7 of that Act (1996 Act, section 167(2)(a)).
+But if the family try to move to another local authority area where housing is cheaper or more plentiful, they may be refused on the ground that they have no local connection with that area.
+It will be particularly difficult for them to move if they have rent arrears, but the benefit cap is very likely to lead to rent arrears unless there is a speedy grant of a discretionary housing payment to fill the gap, which certainly cannot be guaranteed. 204.
+The Court of Appeal has recognised that discretionary housing payments are not an answer.
+In Burnip v Birmingham City Council [2012] EWCA Civ 629, [2013] PTSR 117, the Court of Appeal held that it was unjustifiably discriminatory to limit a severely disabled man who needed an overnight carer to the housing benefit payable for a one bedroomed flat.
+As Henderson J explained at para 46, where there is a gap between objectively verifiable need and the housing benefit payable, [d]iscretionary housing payments were in principle available as a possible way of bridging this gap, but they cannot in my judgment be regarded as a complete or satisfactory answer to the problem.
+This follows from the cumulative effect of a number of separate factors.
+The payments were purely discretionary in nature; their duration was unpredictable; they were payable from a capped fund; and their amount, if they were paid at all, could not be relied upon to cover even the difference between the one and two bedroom rates of LHA [local housing allowance], and still less the full amount of the shortfall.
+To recognise these shortcomings is not in any way to belittle the valuable assistance that discretionary housing payments are able to provide, but is merely to make the point that, taken by themselves, they cannot come anywhere near to providing an adequate justification for the discrimination in cases of the present type.
+The additional money made available for DHPs when the benefit cap was introduced is not ring fenced.
+As Mr Holmes makes clear, these payments were never intended to be a long term solution to the problems facing claimants like these. 205.
+It was predicted that there would be an increase in evictions and homelessness as a result of the benefit cap.
+If the family does become homeless because of the cap, the Government hopes that neither the local housing authority nor the courts will regard them as intentionally homeless.
+They will have a priority need and should therefore be owed the full housing duty under Part 7 of the 1996 Act (1996 Act, sections 189(1)(b), 193(2)).
+Nevertheless, it may take a very long time before permanent accommodation becomes available, during which time they will be placed in temporary accommodation, often in the private sector.
+This is known to be more expensive than permanent accommodation.
+In other words, if they become homeless as a result of the cap, they are equally likely to be capped in their temporary accommodation.
+They do not have a choice.
+Provided the accommodation is suitable they have to take what is offered.
+The Government points out that affordability is part of suitability, but there may well be nothing else available.
+Local housing authorities have difficulty finding enough accommodation, and it is simply unrealistic to expect a homeless family to turn down an offer of otherwise suitable accommodation on the basis that it is not affordable.
+The Government wishes to encourage local authorities to move people out of temporary accommodation as soon as possible (Holmes, Witness Statement No 1, para 114), but the question is whether depriving homeless families of the full cost of such accommodation is a proper way to put pressure on local authorities to do so. 206.
+In addition, there are many other reasons why it may be quite unreasonable to expect a lone parent to move to another area.
+Finding new schools for several children in an unfamiliar area is not straightforward, nor is it good for the education which will in the long term be the best way of lifting those children out of poverty.
+Thus the Divisional Court concluded (at para 27, echoed almost precisely at para 22 in the judgment of the Court of Appeal): In the case of each of these claimants, therefore, there are powerful reasons why the suggested ways of mitigating the effects of the cap are not appropriate.
+The sums are too great to bring [their] finances under control by prudent housekeeping; they are for various reasons not in a position to work; and they have educational and/or cultural and support reasons why they do not want to move any distance from their current homes. 207.
+As CPAG point out, the Government accepted in its grounds of resistance to the claim that the aim of incentivising claimants to work may be less pertinent for those who are not required to work (such as parents with young children).
+Hence it has to fall back on making fiscal savings and creating a system which is fairer as between those receiving out of work benefits and working households.
+The test 208.
+The Strasbourg court will, of course, allow Contracting states a margin of appreciation in assessing whether the difference in treatment is justified.
+As is well known, the width of that margin differs according to the subject matter.
+In Stec, the court went on to explain, in para 52: The scope of this margin will vary according to the circumstances, the subject matter and the background.
+As a general rule, very weighty reasons would have to be put forward before the court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention.
+On the other hand, a wide margin is usually allowed to the state under the Convention when it comes to general measures of economic or social strategy.
+Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the court will generally respect the legislatures policy choice unless it is manifestly without reasonable foundation. 209.
+The references cited for the manifestly without reasonable foundation test were James v United Kingdom (1986) 8 EHRR 123, para 46, and National & Provincial Building Society v United Kingdom (1997) 25 EHRR 127, para 80, both cases complaining of a violation of article 1 of the First Protocol.
+In AXA General Insurance Ltd v HM Advocate [2011] UKSC 46, [2012] 1 AC 868, both Lord Hope, at para 31, and Lord Reed, at para 124, treated this test as directed towards whether the measure is in the public interest, in other words to whether it has a legitimate aim.
+They dealt separately with whether the interference with property rights was proportionate.
+They relied upon cases such as Pressos Compania Naviera SA v Belgium (1995) 21 EHRR 301, at para 38, where the Strasbourg court appears to have regarded this as a separate question: An interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interest of the community and the requirements of the protection of the individuals fundamental rights.
+In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his possessions. (see also In re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill [2015] UKSC 3, [2015] 2 WLR 481, para 52).
+In this case, the complaint is of discrimination in interfering with the peaceful enjoyment of possessions rather than of deprivation of possessions as such.
+Nevertheless, the benefit cap does come close to a deprivation of possessions, given that it removes, by reference to a fixed limit, benefit to which the claimants would otherwise be entitled by virtue of their needs and, more importantly, the needs of their children. 210.
+When it comes to justifying the discriminatory impact of an interference with property rights, a distinction might similarly be drawn between the aims of the interference and the proportionality of the discriminatory means employed.
+However, it has been accepted throughout this case that the manifestly without reasonable foundation test applies to both parts of the analysis; but that, as this court said in Humphreys v Revenue and Customs Commissioners [2012] UKSC 18, [2012] 1 WLR 1545, at para 22, the fact that the test is less stringent than the weighty reasons normally required to justify sex discrimination does not mean that the justifications put forward for the rule should escape careful scrutiny.
+Relevance of the United Nations Convention on the Rights of the Child 211.
+In Burnips case, at para 21, Maurice Kay LJ pointed out that In the recent past, the European court has shown an increased willingness to deploy other international instruments as aids to the construction of the Human Rights Convention.
+He cited, among others, the important case of Opuz v Turkey (2009) 50 EHRR 695, at para 185: When considering the definition and scope of discrimination against women, in addition to the more general meaning of discrimination as determined in its case law, the court has to have regard to the provisions of more specialised legal instruments and the decisions of international legal bodies on the question of violence against women. 212.
+Burnip was concerned with discrimination against disabled people by failing to make reasonable accommodation for their special needs.
+The United Nations Convention on the Rights of Persons with Disabilities (CRPD) was cited to the Court of Appeal, but not, it appears, the case of Glor v Switzerland, Application No 13444/04, 30 April 2009, where the Strasbourg court reiterated that the Convention must be interpreted in the light of present day conditions, including the European and worldwide consensus on the need to protect people with disabilities from discriminatory treatment, citing in particular the CRPD.
+The Court of Appeal in Burnip felt able to determine the issue without resort to the CRPD, but had he not been able to do so, Maurice Kay LJ would have resorted to that Convention, which would have resolved any uncertainty in favour of the claimants.
+He continued It seems to me that it has the potential to illuminate our approach to both discrimination and justification (para 22). 213.
+Likewise, our approach to both discrimination and justification in this case may be illuminated by reference to other international instruments to which the United Kingdom is party, including not only the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which was the relevant instrument in Opuz v Turkey, but also most notably the United Nations Convention on the Rights of the Child (UNCRC).
+In Neulinger v Switzerland (2010) 54 EHRR 1087, for example, the Grand Chamber observed, at para 131: The Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law.
+Account should be taken of any relevant rules of international law applicable in the relations between the parties, and in particular the rules concerning the international protection of human rights .
+It went on, at para 135, to note that there is currently a broad consensus including in international law in support of the idea that in all decisions concerning children their best interests must be paramount. 214.
+This may be putting matters a little too high.
+The relevant international instruments relied upon by the Grand Chamber were, principally, article 3(1) of UNCRC: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
+This is pithily echoed in the Charter of Fundamental Rights of the European Union, article 24(2): In all actions relating to children, whether taken by public authorities or private institutions, the childs best interests must be a primary consideration. 215.
+As this court recognised in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, para 25, a primary consideration is not the same as the primary consideration still less the paramount consideration.
+Nevertheless, the obligation to treat their best interests as a primary consideration in all actions concerning children is binding upon the Government of this country in international law.
+It has also become relevant in domestic law in at least two ways.
+First, section 11 of the Children Act 2004 places a duty on a wide range of bodies providing public services to carry out their functions having regard to the need to safeguard and promote the welfare of children.
+This duty has also been placed on the Secretary of State for the Home Department in the exercise of her functions in relation, among other things, to immigration, asylum or nationality, by section 55 of the Borders, Citizenship and Immigration Act 2009. 216.
+This duty has not yet, however, been extended to all Government departments, including the Department of Work and Pensions, with whose decisions we are concerned in this case.
+Nevertheless, in a Written Statement to Parliament on 6 December 2010, the Minister of State for Children and Families made a clear commitment that the Government will give due consideration to the UNCRC articles when making new policy and legislation.
+In doing so, we will always consider the UN Committee on the Rights of the Childs recommendations but recognise that, like other state signatories, the UK Government and the UN Committee may at times disagree on what compliance with certain articles entails.
+It is not surprising, therefore, that the Joint Committee on Human Rights, in its scrutiny of the Welfare Reform Bill, regretted that the Government had failed to carry out any detailed analysis of the compatibility of the Bill with the UNCRC (Session 2010 2012, 21st Report, Legislative Scrutiny: Welfare Reform Bill, para 1.35).
+The Government has not resiled from that commitment, which is repeated in the Cabinet Office Guide to Making Legislation (July 2013, para 11.30), but it has not yet been translated into domestic law. 217.
+However, the international obligations which the United Kingdom has undertaken are also taken into account in our domestic law insofar as they inform the interpretation and application of the rights contained in the European Convention, which are now rights in UK domestic law.
+There is no reason at all why those obligations should not inform the interpretation of the Convention right to the enjoyment of the substantive Convention rights without discrimination just as much as they inform the interpretation of the substantive Convention rights.
+ZH (Tanzania) happened to be a case about article 8, as were H (H) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, [2013] 1 AC 338, and Neulinger itself.
+The Strasbourg court has taken the UNCRC into account in construing other articles of the Convention, most notably article 6 in relation to the fair trial of juvenile offenders, in T v United Kingdom (1999) 30 EHRR 121. 218.
+For these reasons, echoing Maurine Kay LJ in Burnip, I agree that our international obligations under the UNCRC and CEDAW have the potential to illuminate our approach to both discrimination and justification.
+Whatever the width of the margin of appreciation in relation to the subject matter of a measure, the Strasbourg court would look with particular care at the justification put forward for any measure which places the United Kingdom in breach of its international obligations under another human rights treaty to which we are party. 219.
+Hence it is no surprise that the Divisional Court held that the court should have regard to the UNCRC as a matter of Convention jurisprudence and the Secretary of State did not challenge that view in the Court of Appeal (see para 69 of their judgment) or, initially, in this court.
+The Statement of Facts and Issues agreed between the parties for this court included: (c) Was the Court of Appeal wrong to have found that the discriminatory effects of the 2012 Regulations on lone parents were justified and lawful, and not contrary to article 14 (read with article 8 and/or article 1 of Protocol 1); and (d) Was the Court of Appeal wrong to have found that the respondent has complied with his obligation to treat the best interests of children as a primary consideration when implementing the benefit cap scheme? Not surprisingly, therefore, this court took it as common ground that article 3(1) of the UNCRC was relevant to the discrimination issue.
+The question was whether it had been complied with.
+After the hearing, however, it became clear that the Secretary of State no longer accepted that article 3(1) was relevant to whether the admitted indirect discrimination could be justified.
+He was therefore permitted to file further arguments on the issue, to which the appellants and the interveners were permitted to reply.
+This has had the beneficial effect of enabling us to consider the issue in more detail. 220.
+The Secretary of State makes two main arguments against taking article 3(1) of UNCRC into account in deciding whether this discrimination can be justified.
+The first is that the UNCRC, like other international conventions, can inform the substantive content of the Convention rights, but not the approach to proportionality and discrimination.
+As to proportionality, this argument is clearly negated by the Grand Chamber decision in Neulinger v Switzerland (2010) 54 EHRR 1087, where the best interests of the child were taken into account in deciding whether the interference with the parties rights to respect for their family life, entailed in an order to return to the childs home country of Israel, was proportionate.
+Reference was also made to the long line of cases dealing with the expulsion of aliens, according to which, in order to assess the proportionality of an expulsion measure concerning a child who has settled in the host country, it is necessary to take account of the childs best interests and well being (para 146).
+In those cases, the best interests of a child have been taken into account in assessing the proportionality of an interference with the Convention rights of others: see Uner v Switzerland (2006) 45 EHRR 421, at paras 57 58. 221.
+It is no doubt for that reason that the Secretary of State for the Home Department conceded, in ZH (Tanzania) [2011] 2 AC 166, that removing the mother would be a disproportionate interference with the childrens article 8 rights.
+This concession was rightly made, irrespective of section 55 of the Borders, Citizenship and Immigration Act 2009.
+The relevance of the duty in that section was to whether the decision was in accordance with the law (see para 24) rather than to its proportionality. 222.
+As to discrimination, the Secretary of States argument is clearly negated by the Grand Chamber decision in X v Austria (2013) 57 EHRR 405.
+This was a case of alleged discrimination on grounds of sexual orientation.
+A same sex partner could not adopt so as to become a joint parent with the birth parent partner, whereas an opposite sex partner could do so.
+When dealing with the relevant international law, at para 49, the court begins with the article 3(1) of the UNCRC, before turning to article 21 and other specific provisions on adoption.
+When discussing the suggested justifications for the discrimination, at para 146, the court concludes that Unless any other particularly convincing and weighty reasons militate in favour of such an absolute prohibition, the considerations adduced so far would seem rather to weigh in favour of allowing the courts to carry out an examination of each individual case.
+This would also appear to be more in keeping with the best interests of the child, which is a key notion in the relevant international instruments.
+The footnote refers back to para 49.
+In common with Lord Carnwath, I read this case as clearly indicating that the best interests of the child are to be taken into account in determining whether discrimination is justified under article 14. 223.
+The second argument now advanced by the Secretary of State is that the discrimination in this case is not against the children involved but against their mothers.
+It is not suggested that the rights of the children themselves have been infringed.
+This case may be contrasted with Neulinger, and indeed ZH (Tanzania), in which the complaint was of interference with the childrens right to respect for their family lives, as well as their mothers.
+However, the same cannot be said of X v Austria.
+The child was a complainant, but it was not suggested that there had been discrimination against her; rather it was that the discrimination against her mother and her mothers same sex partner affected (but did not infringe) her right to respect for her family life.
+It is difficult indeed to see how the family life of the child in that case was any more affected by the legal status of the people looking after her than is the family life of the children involved in this case by the financial situation in which the benefit cap has placed their parents. 224.
+There is the further point, most clearly articulated by Lord Reed at para 89 of his judgment, that the children living with lone parent fathers suffer just as much as the children living with lone parent mothers.
+Their welfare cannot therefore be relevant to justifying the discrimination between them.
+However, for the reasons explained in para 189 earlier, this point does not arise when the discrimination complained of is indirect rather than direct.
+It is of the nature of indirect discrimination that the measure in question applies to both men and women.
+What has to be considered is whether the measure itself, which in this case I take to be the benefit cap as it applies to lone parents, can be justified independently of its discriminatory effects.
+In considering whether that measure can be justified, I have no doubt at all that it is right, and indeed necessary, to ask whether proper account was taken of the best interests of the children affected by it.
+Application 225.
+Both the Divisional Court and the Court of Appeal concluded that the Government had complied with its obligation to treat the best interests of the children concerned as a primary consideration (paras 75 and 49, respectively).
+They were, of course, correct to say that the Government was keenly aware of the impact the benefits cap would be likely to have on children (Court of Appeal, para 74(2)).
+But it does not follow from that that the the rights of children were, throughout, at the forefront of the decision makers mind (para 75, emphasis supplied).
+Still less does it follow that their best interests were being treated as a primary consideration.
+In agreement with the powerful judgments of Lord Carnwath and Lord Kerr on this point, it is clear to me that they were not. 226.
+The Governments contention was that the long term shift in welfare culture, or reversing the impact of benefit dependency on families and children, would be beneficial to children in the longer run.
+This may well be so, although it is interesting how little prominence was given to this aspect of the matter in the justifications put forward by the Government for their policy.
+But in any event, this is to misunderstand what article 3(1) of the UNCRC requires.
+It requires that first consideration be given to the best interests, not only of children in general, but also of the particular child or children directly affected by the decision in question.
+It cannot possibly be in the best interests of the children affected by the cap to deprive them of the means to provide them with adequate food, clothing, warmth and housing, the basic necessities of life.
+It is not enough that children in general, now or in the future, may benefit by a shift in welfare culture.
+Insofar as the Secretary of State relies upon this as an answer to article 3(1), he has misdirected himself. 227.
+It may be worth noting that the UNCRC contains some specific obligations which go beyond treating childrens interests as a primary consideration when making decisions concerning them.
+Article 27(1) provides that States Parties recognise the right of every child to a standard of living adequate for the childs physical, mental, spiritual, moral and social development.
+Although parents have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the childs development (article 27(2)), States Parties have to take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing (article 27(3)).
+The usual approach of the Strasbourg court is that the Convention confers no right to be provided with any particular welfare benefit but that, if it is provided, it must be provided in a non discriminatory manner.
+The United Kingdom performs its obligations towards children, among other ways, through the welfare benefits system, which provides specific benefits in order that children shall be free from want.
+The benefit cap deprives some children, principally those in larger families living in high cost accommodation, of provision for their basic needs in order to incentivise their parents to seek work, but discriminates against those parents who are acknowledged to be least likely to be able to do so.
+The children affected suffer from a situation which is none of their making and which they themselves can do nothing about. 228.
+This case is therefore very different from the case of Humphreys v Revenue and Customs Commissioners [2012] UKSC 18, [2012] 1 WLR 1545, in which the Government had to justify the discriminatory effect of paying child tax credit to the parent with the main responsibility for looking after the child, even though the care of the child was shared with another parent.
+This was indirectly discriminatory against fathers, but the object was to concentrate the help for the child where it was most needed and to maximise the amount of public money available to support children.
+As the Government put it, the benefit attaches to the child rather than the parent (para 25). 229.
+Viewed in the light of the primary consideration of the best interests of the children affected, therefore, the indirect discrimination against women inherent in the way in which the benefit cap has been implemented cannot be seen as a proportionate means of achieving a legitimate aim.
+Families in work are already better off than those on benefits and so the cap is not necessary in order to achieve fairness between them; saving money cannot be achieved by unjustified discrimination; but the major aim, of incentivising work and changing the benefits culture, has little force in the context of lone parents, whatever the age of their children.
+Depriving them of the basic means of subsistence cannot be a proportionate means of achieving it.
+Relief 230.
+The claimants seek both declaratory relief and an order quashing Part 8A of the Housing Benefit Regulations.
+The latter would not be appropriate, given that it is not suggested in this case that the implementation of the cap in relation to single person and two parent households is incompatible with the Convention rights.
+It is the implementation in relation to lone parents, some of whom will be fleeing domestic violence, and their dependent children, which has been shown to be incompatible. 231.
+There are several different ways in which that incompatibility might be cured, most notably perhaps by taking the child tax credit and/or child benefit payable to lone parents out of the list of welfare benefits taken into account in calculating the cap.
+It is true, of course, that the Government resisted amendments to take housing benefit, child benefit and child tax credit out of the cap, on the ground that this would be to emasculate its policy objectives.
+It is easy to see how this might be so, if it were done for all claimants.
+But it has not been shown that taking the child related benefits out of the cap as it applies to lone parents would do so.
+In any event, it is obvious that there is sufficient flexibility in the statutory scheme to enable appropriate solutions to be crafted.
+It is not for this court to suggest any particular way in which the problem might be solved. 232.
+In my view, therefore, the appropriate relief would be a declaration that Part 8A of the Housing Benefit Regulations is incompatible with the Convention rights in that its application to lone parents is indirectly discriminatory on grounds of sex, contrary to article 14 of the Convention read with article 1 of the First Protocol.
+LORD KERR: 233.
+As Lord Hughes has observed, there is much common ground among the members of the panel about the issues that arise on this appeal.
+He has helpfully outlined the areas of agreement in para 135 of his judgment.
+I am also in broad agreement with virtually all of Lord Carnwaths judgment (except as to outcome) and am in complete agreement with Lady Hale that the appeal should be allowed for the reasons that she has given.
+On one view, therefore, there is nothing to be gained from my contributing further to the debate.
+But I have changed the view that I originally held about the direct effect of article 3 of UNCRC and wish to explain why.
+If I am wrong in my revised view, there remain two particular issues which separate the majority from Lady Hales approach (which I would favour as an alternative to my principal conclusion) that I believe are of vital importance and which have implications well beyond this appeal.
+For that reason, I feel constrained to say something of them as well. 234.
+The two issues are these: (i) if article 3 does not have direct effect, what is the use to which it may be put in considering the proportionality of a measure which interferes with a Convention right; and (ii) whether there is a sufficient identity of interest between a child and her or his lone parent so as to render discrimination against the child discrimination against the parent.
+Before turning to those issues, however, I wish to begin by examining the role of unincorporated treaties.
+The role of unincorporated treaties 235.
+Two dominant principles have traditionally restricted the use of international treaties in British domestic law.
+The first is that domestic courts have no jurisdiction to construe or apply treaties which have not been incorporated into national law; that they are effectively non justiciable.
+The second is that such treaties, unless incorporated into domestic law, are not part of that law and therefore cannot be given direct effect to create rights and obligations under national or municipal law.
+This is a matter of constitutional orthodoxy.
+It underpinned the series of decisions in which courts consistently refused to give effect to Convention rights before the coming into force of the Human Rights Act 1998.
+See, for instance, R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696, 747 748, Lord Bridge of Harwich and at 762B D Lord Ackner; NALGO (1992) 5 (Admin) LR 785, 798, Re McKerr [2004] UKHL 12; [2004] 1 WLR 807: Lord Nicholls of Birkenhead at para 25, Lord Steyn at para 48, Lord Hoffmann at para 63, Lord Rodger of Earlsferry at para 80 and Lord Brown of Eaton under Heywood at para 90. 236.
+Perhaps the high water mark of the dualist conception of the restriction on the use of international law was reached in J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry (International Tin Council) [1990] 2 AC 418.
+The House of Lords reaffirmed the two principles of non justiciability and no direct effect.
+This was on the basis that domestic courts had no competence in respect of the legal relations between sovereign states, nor was the royal prerogative reviewable.
+At 499F/500C Lord Oliver of Aylmerton said: It is axiomatic that municipal courts have not and cannot have the competence to adjudicate upon or to enforce the rights arising out of transactions entered into by independent sovereign states between themselves on the plane of international law On the domestic plane, the power of the Crown to conclude treaties with other sovereign states is an exercise of the Royal Prerogative, the validity of which cannot be challenged in municipal law .
+That is the first of the underlying principles.
+The second is that, as a matter of the constitutional law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament.
+Treaties, as it is sometimes expressed, are not self executing.
+Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation. 237.
+Of course the prerogative can now be reviewed, in appropriate circumstances see, for instance, Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598, [2003] UKHRR 76.
+The conduct of foreign affairs, including the making of treaties is still considered to be beyond the reach of judicial review, however.
+In R (Campaign for Nuclear Disarmament) v Prime Minister of the United Kingdom [2002] EWHC 2759, 126 ILR 727 the High Court held that domestic courts will not determine the meaning of an international instrument (in this case a UN Security Council Resolution) operating purely on the plane of international law.
+It was said that the only cases in which the court would pronounce on an issue of international law are those where it is necessary to do so in order to determine rights and obligations under domestic law, so as to draw the court into the field of international law (at paras 36 40, 47(i)). 238.
+Despite the seemingly comprehensive ban on the use by the courts of unincorporated international treaties to recognise rights on the domestic law plane, there are three possible ways which have been considered by the courts in which such treaties may have an impact on national law (i) as an aid to statutory interpretation; (ii) as an aid to development of the common law; and (iii) as a basis for legitimate expectation.
+Unincorporated treaties as an aid to statutory interpretation 239.
+Where a legislative provision is ambiguous there is a presumption that Parliament intended to legislate in a manner which does not involve breach of international treaty obligations: Salomon v Commissioners of Customs and Excise [1967] 2 QB 116, 143E G; Garland v British Rail Engineering Ltd [1983] 2 AC 751, 771 (Lord Diplock).
+See also Sir John Laws [1993] PL 58, 83.
+While New Zealand allows non ambiguous legislation to be read down, or additional words to be read in for the purpose of consonance with international treaties (eg Sellers v Maritime Safety Inspector [1999] 2 NZLR 44, CA), this is not currently the case in the UK see Collco Dealings Ltd v Inland Revenue Commissioners [1962] AC 1, 19; Quazi v Quazi [1980] AC 744, 808D E; JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, 481F H, 500E (the International Tin Council case); R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696, 747 749, 760D G; Brown [1994] 1 AC 212, 256E F; J A Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419, 65; R v Lyons (Isidore) [2002] UKHL 44, [2003] 1 AC 976, 13; Boyce v The Queen [2004] UKPC 32, [2005] 1 AC 400, 25 and 81; Abdirahman v Secretary of State for Work and Pensions [2007] EWCA Civ 657, [2008] 1 WLR 254, at 35 40. 240.
+But the presumption of compatibility of domestic legislation with international law is well established.
+A recent example is to be found in Assange v Swedish Prosecution Authority [2012] 2 AC 471 where at para 122 Lord Dyson said: there is no doubt that there is a strong presumption in favour of interpreting an English statute in a way which does not place the United Kingdom in breach of its international obligations.
+Unincorporated treaties and the development of the common law 241.
+It is clear that unincorporated treaties may have a bearing upon the development of the common law: Lyons [2002] UKHL 44, [2003] 1 AC 976, 13 per Lord Bingham.
+Developments of the common law should ordinarily be in harmony with the UKs international obligations: A v Secretary of State for the Home Department (No 2) [2005] UKHL 71; [2006] 2 AC 221 Lord Bingham at para 27.
+Unincorporated treaties may also be used to resolve ambiguities in the common law: Derbyshire County Council v Times Newspapers Ltd [1993] AC 534.
+See also Director of Public Prosecutions v Jones (Margaret) [1999] 2 AC 240 Lord Slynn at 265D F, Lord Hope at 277E 278F: reference to the ECHR for guidance was found to be inappropriate in context as there was no doubt about the content of the common law.
+By implication, at least, where such doubt is present, consideration of an international convention or treaty such as ECHR would be appropriate in order to determine what the common law position is or should be. 242.
+The proposition that the common law cannot be used to incorporate treaties through the backdoor has, however, been reasserted in, for instance, A v Secretary of State for the Home Department (No 2) [2004] EWCA Civ 1123; [2005] 1 WLR 414 Laws LJ at paras 266 267, Neuberger LJ at para 434.
+Unincorporated treaties and legitimate expectation 243.
+In Chundawadra v Immigration Appeal Tribunal [1998] Imm AR 161 it was argued that every citizen had a legitimate expectation that, if the ECHR was relevant to a matter under consideration, the Minister would take it into account when deciding how to exercise his powers.
+The Court of Appeal refused to accept this argument, holding that it was not appropriate to introduce the Convention into domestic law by the back door in this way. 244.
+Arguments based on the Australian authority of Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; 128 ALR 353 were considered by the Court of Appeal in Behluli v Secretary of State for the Home Department [1998] Imm AR 407, at para 415.
+The court expressly refused to follow Teoh; it held that mere ratification of a treaty could not generate a legitimate expectation that the treaty would be followed.
+Two months later, however, a different division of the Court of Appeal indicated a willingness to adopt and follow Teoh in relation to decisions taken under the Royal Prerogative.
+In R v Secretary of State for the Home Department, Ex p Ahmed and Patel [1998] INLR 570, the Court of Appeal held that the entering into a treaty by the Crown could give rise to a legitimate expectation because, subject to any indication to the contrary, ratification amounted to a representation that the Crown would act in accordance with the obligations imposed on it by the treaty in question.
+The High Court followed this approach in R v Uxbridge Magistrates' Court, Ex p Adimi [2001] QB 667, DC, (Simon Brown LJ at para 686, Newman J at paras 690 691), although apparently without having Chundawadra or Behluli cited to it. 245.
+In the High Court in R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326 Lord Bingham CJ rejected an attempt to base a legitimate expectation on the ratification of the ECHR, observing that ratification took place nearly half a century ago at a time when it was generally assumed that ratification would have no practical effect on British law or practice. (This view was endorsed by the House of Lords).
+Laws LJ at pp 353 356, agreeing with Lord Bingham, referred to what had by then become the somewhat hackneyed theme that the legitimate expectation argument would effectively introduce the ECHR through the back door.
+He acknowledged, however, that the Convention had plainly informed the common law and he noted Teoh but suggested that any extension of this area would have to be at a higher level, to overcome the House of Lords authority of Brind. 246.
+The proposition that the doctrine of legitimate expectation can generate a right to rely on the provision of an unincorporated treaty in the interpretation and application of domestic law is, at least, controversial.
+But treaties concerning human rights are, for reasons that I will develop, in a different position.
+Human rights cases 247.
+A small opening for an exception in relation to human rights treaties can perhaps be seen in Lewis v AG of Jamaica [2001] 2 AC 50 PC, where Lord Slynn, although upholding the traditional principles of non justiciability and no direct effect, acknowledged the argument that an exception might be read into these rules when the treaty in question was a human rights treaty: even assuming that that [rule] applies to international treaties dealing with human rights . : p 84.
+In Foreign Relations and the Judiciary (2002) 51 ICLQ 485, 496 Lord Collins has commented on this passage: these words contemplate the possibility that unincorporated treaties relating to human rights may be given effect without legislation [I]t may be a sign that one day the courts will come to the view that it will not infringe the constitutional principle to create an estoppel against the Crown in favour of individuals in human rights cases. 248.
+In Re McKerr Lord Steyn cast doubt on the applicability of the fundamental principles set out in International Tin Council so far as they governed the position in relation to human rights treaties, arguing that the rationale of the dualist theory, which underpins the International Tin Council case, is that any inroad on it would risk abuses by the executive to the detriment of citizens.
+It is, however, difficult to see what relevance this has to international human rights treaties which create fundamental rights for individuals against the state and its agencies.
+A critical re examination of this branch of the law may become necessary in the future at paras 49 50. 249.
+While acknowledging that the point had not been the subject of argument, Lord Steyn referred to some academic criticism of International Tin Council and highlighted what he termed growing support for the view that human rights treaties enjoy a special status, citing the views of Murray Hunt (Using Human Rights Law in English Courts (1998)), at pp 26 28) and the extra judicial comments of Lord Collins quoted above. 250.
+In International Law in Domestic Courts: The Developing Framework (2008) 124 LQR 388 Philip Sales and Joanne Clement attack this argument, pointing out that the rationale for International Tin Council is that the Crown cannot change domestic law by the exercise of prerogative powers as this would infringe the sovereignty of Parliament.
+In adopting what might be regarded as a somewhat absolutist position, Sales and Clement argue at para 388: In a dualist state such as the United Kingdom, international law and domestic law are regarded as separate legal systems, operating on different planes.
+International law does not, as such, form part of the domestic legal system.
+While in particular instances rules of international law may apply in domestic law, they do so by virtue of their adoption by the internal law of the state. 251.
+The Sales and Clement article provides a comprehensive survey of international law in this area.
+They argue forcefully that unincorporated treaties should not be extended so as to have direct effect in national law.
+The dualist structure of our law, which treats international law as operating on a separate plane, has, they suggest, been repeatedly upheld as a central constitutional, legal and political principle.
+They conclude at 421: The risk of some degree of dissonance between domestic law and international law is the natural consequence of self government by states and of parliamentary sovereignty as the primary constitutional principle of government within the state, and its elimination is a matter for the political process.
+It is not the proper function of the domestic courts to change domestic legal principles to eliminate such dissonance. 252.
+In an article entitled Human Rights Treaties in the English Legal System published in [2011] PL, 554 576, Dr Bharat Malkani has challenged the central thesis of Sales and Clement.
+He argues that one needs to question why Parliament should be treated as the proper locus of law making power.
+Dr Malkani suggests that the enactment of the Human Rights Act and the incorporation of ECHR into domestic law brought about a change in the constitutional order and that parliamentary sovereignty is no longer the principal basis of the British constitution.
+This was, rather, the rule of law.
+On this basis he argues that the constitutional principle of parliamentary sovereignty does not require that international conventions on human rights be transformed into domestic law in order to create rights, citing Alan Brudner The Domestic Enforcement of International Covenants on Human Rights: A Theoretical Framework (1985) 35 University of Toronto Law Journal.
+Brudner propounds a theory which would be regarded as highly radical in UK law to the effect that a convention while in origin a treaty between independent states, is in content the legislation of a universal community of rational beings.
+On this account, he argues that since international conventions on human rights articulate principles rationally connected to the common good, they do not require to be transformed into national law. 253.
+In light of the authorities that I have earlier considered, it may safely be said that such a far reaching approach is unlikely to find favour in the courts of this country.
+It is perhaps noteworthy, however, that other commentators have been critical of the courts adherence to the dualist theory of international law, especially in relation to human rights conventions see, for instance, Brice Dickson, Safe in Their Hands? Britains Law Lords and Human Rights (2006) 26 Legal Studies 329, 335; D Beyleveld The concept of a human right and incorporation of the European Convention on Human Rights [1995] PL 577; M Hunt Using Human Rights Law in English Courts (Oxford: Hart, 1997). 254.
+I consider that the time has come for the exception to the dualist theory in human rights conventions foreshadowed by Lord Slynn in Lewis and rather more firmly expressed by Lord Steyn in Re McKerr to be openly recognised.
+This can properly be done in relation to such conventions without espousing the complete abandonment of the theory advocated by some of the commentators referred to above. 255.
+If Lord Steyn is right, as I believe he is, to characterise the rationale for the dualist theory as a form of protection of the citizen from abuses by the executive, the justification for refusing to recognise the rights enshrined in an international convention relating to human rights and to which the UK has subscribed as directly enforceable in domestic law is not easy to find.
+Why should a convention which expresses the UKs commitment to the protection of a particular human right for its citizens not be given effect as an enforceable right in domestic law? 256.
+Standards expressed in international treaties or conventions dealing with human rights to which the UK has subscribed must be presumed to be the product of extensive and enlightened consideration.
+There is no logical reason to deny to UK citizens domestic laws vindication of the rights that those conventions proclaim.
+If the government commits itself to a standard of human rights protection, it seems to me entirely logical that it should be held to account in the courts as to its actual compliance with that standard.
+This is particularly so in the case of UNCRC.
+On its website UNICEF has stated that: The CRC is the basis of all of UNICEFs work.
+It is the most complete statement of childrens rights ever produced and is the most widely ratified international human rights treaty in history. 257.
+I therefore consider that article 3(1) of UNCRC is directly enforceable in UK domestic law.
+A primacy of importance ought to have been given to the rights of children in devising the regulations which bring the benefits cap into force.
+For the reasons given by Lady Hale, I have concluded that this has not taken place.
+The alternative argument 258.
+In the Court of Appeal Lord Dyson MR said at para 69: The Divisional Court held that, notwithstanding the fact that the UNCRC is an international convention which has not been incorporated into our domestic law, the court should nevertheless have regard to it as a matter of Convention jurisprudence: see Neulinger v Switzerland (2010) 54 EHRR 1087, cited by Baroness Hale in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166, para 21.
+This has not been challenged by the Secretary of State on this appeal. 259.
+One starts therefore with the proposition that UNCRC is, as Lord Carnwath has put it, legally relevant.
+Its legal relevance stems from the fact that, as again Lord Carnwath has put it, under ECHR and in accordance with the Vienna Convention, regard may be had to principles of international law, including international conventions in order to interpret the terms and notions of the Convention Demir v Turkey (2008) 48 EHRR 1272.
+Lord Carnwath has said that in the cases of X v Austria (2013) 57 EHRR 405, Ponomaryov v Bulgaria (2011) 59 EHRR 799 and Burnip v Birmingham City Council [2013] PTSR 117, the court used international materials to fill out, or reinforce, the content of a Convention article (para 130).
+I would prefer to put the matter slightly differently. 260.
+What the courts did in those cases, following the Demir approach was to recognise that the nature and content of Convention rights could be informed by international instruments which expressed standards that were internationally recognised.
+This does not involve directly applying the provisions of an international treaty which had not been incorporated into domestic law.
+It does not introduce those provisions by the back door.
+Rather, it reflects the courts obligation, charged as we are with the duty of obtaining a proper understanding of the nature of an avowed right, to have regard to standards which have found expression in those treaties.
+We should do this for the prosaic but extremely important reason, as I have said in para 256 above, that they have been the product of extensive and, hopefully, enlightened consideration. 261.
+If the rights enshrined in those treaties are not directly enforceable in domestic law it is, of course, open to domestic courts to refuse to allow such treaties to have any influence whatever on our conclusions as to the content of the right.
+Such an approach would be justified where, for instance, the right was too broadly expressed or too remote from the subject under consideration.
+Or we could conclude that the right was too ambivalently stated to allow any influence to be brought to bear on the content of a right asserted under domestic law.
+But where the claimed right is directly relevant to the domestic issue to be decided, then recourse to the standards that the international instrument exemplifies is not only legitimate, it is required.
+How, otherwise, are we to acquire a true understanding of the proper contours and content of the right under discussion? This is not applying an unincorporated international treaty directly to domestic law.
+It is merely allowing directly relevant standards to infuse our thinking about what the content of the domestic right should be. 262.
+Article 3(1) of UNCRC is unquestionably directly relevant to the question of whether a primacy of importance was given to the interests of children in formulating the regulations which give effect to the benefits cap.
+As I have already said, I agree with Lady Hale that it was not.
+I will say no more on that topic.
+The critical issue now is whether there is a sufficient connection between the interests of the children and those discriminated against, viz their lone mothers, to make discrimination against the children of those mothers discrimination against them also.
+Put another way, as Lord Carnwath does in para 115 of his judgment, is there a direct link between the international treaty relied on and the particular form of discrimination alleged? The indissociability of a child and her/his lone mother 263.
+In this case the government accepts that the benefits cap discriminates against women as lone parents.
+Its defence of this admitted discrimination rests exclusively on its claim that it is justified by the social objectives which it pursues.
+It claims, however, that justification of those objectives does not require it to give primary consideration to the impact of the benefit cap on the children of lone mothers.
+That, the government says, is because the interests of lone mothers can be disassociated from those of their children.
+Lord Carnwath has accepted this argument.
+He considers that the interests of children are distinct from their single parent mothers.
+I cannot agree. 264.
+The particular species of discriminatory impact here is on women who, by reason of their position as lone mothers, claim to suffer a disproportionate interference with their Convention rights.
+Justification of the interference must be related to the condition which provides the occasion for the discrimination viz the position of these women as lone parents.
+A mothers personality, the essence of her parenthood, is defined not simply by her gender but by her role and responsibility as a carer of her children, particularly when she is a lone parent. 265.
+Justification of a discriminatory measure must directly address the impact that it will have on the children of lone mothers because that impact is inextricably bound up with the womens capacity to fulfil their role as mothers.
+If you take money away from children which mothers would receive on their behalf, money which they use to realise their role as mothers, the discrimination that you perpetrate involves withholding resources necessary to fully discharge their maternal role.
+Because, therefore, one cannot segregate the interests of the deprived children from those of their mothers, the discrimination against mothers and their children is of the same stripe.
+No hermetically sealed compartmentalisation of their interests is possible. 266.
+A lone mothers interests, when it comes to receiving state benefits, are indissociable from those of her children.
+The rate of her benefits is fixed by reference (among other things) to the number and needs of those children.
+Her capacity to care for her children is likewise directly connected to the amount of state benefits that she receives.
+The interests of single mothers are, therefore, inextricably bound up with the interests of their dependent children, for the trite and prosaic reason that they are parents.
+Any adverse impact on a lone parents financial position is inevitably transmitted to the child because of her or his dependence (financially as well as otherwise) on the parent.
+For these reasons, when one comes to consider the justification for interference with a lone parents Convention right, the interests of the children of that parent cannot be left out of account. 267.
+If the disproportionate effect on lone parents can only be justified by addressing their position as the providers for dependent children, attention to the interests of those children is an integral part of the process.
+How, otherwise, are their interests to be taken into account? As Lord Reed has said, regard has been had to the UNCRC by the European Court of Human Rights in the application of the ECHR, when considering how its substantive guarantees apply to children.
+When considering the rights of children as a component part of their mothers rights under A1P1 and article 14, there is no reason that UNCRC should not likewise infuse the determination of what the content of those rights should be.
+I therefore agree with Lady Hale that, in considering whether the particular species of interference in this case is justified, the interests of the children affected are, by reason of article 3(1) of UNCRC, to be treated as a primary consideration. 268.
+Once this position is reached, the question for the government is how to meet the challenge of showing that the measures which discriminate against the child (and ergo the mother) are no more intrusive than they need to be.
+In this context, I have no difficulty in accepting that the test set out in Stec v United Kingdom (2006) 43 EHRR 1017 continues to apply.
+So, as a yardstick of the proportionality of this general measure of economic or social strategy, the question is whether it was manifestly without reasonable foundation.
+But, if article 3(1) of UNCRC has to play its part in deciding whether the benefits cap was without reasonable foundation, it requires that first consideration be given to the best interests of the children directly affected by the decision. 270.
+I would therefore allow the appeal and make the order that Lady Hale proposes. 269.
+For the reasons given by Lady Hale in para 220, it cannot be in the best interests of the children affected by the cap to deprive them of the means of having adequate food, clothing, warmth and housing.
+Depriving children of (and therefore their mothers of the capacity to ensure that they have) these basic necessities of life is simply antithetical to the notion that first consideration has been given to their best interests.
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+Vicarious liability in tort requires, first, a relationship between the defendant and the wrongdoer, and secondly, a connection between that relationship and the wrongdoers act or default, such as to make it just that the defendant should be held legally responsible to the claimant for the consequences of the wrongdoers conduct.
+In this case the wrongdoer was employed by the defendant, and so there is no issue about the first requirement.
+The issue in the appeal is whether there was sufficient connection between the wrongdoers employment and his conduct towards the claimant to make the defendant legally responsible.
+By contrast, the case of Cox v Ministry of Justice [2016] UKSC 10, which was heard by the same division of the court at the same time, is concerned with the first requirement.
+The judgments are separate because the claims and issues are separate, but they are intended to be complementary to each other in their legal analysis.
+In preparing this judgment I have had the benefit of Lord Reeds judgment in Cox, and I agree fully with his reasoning and conclusion.
+The question in this appeal concerns an employers vicarious liability in tort for an assault carried out by an employee.
+It is a subject which has troubled the courts on numerous occasions and the case law is not entirely consistent.
+In addressing the issues which it raises, it will be necessary to examine how the law in this area has developed, what stage it has reached and whether it is in need of significant change.
+In this case the victim was a customer.
+I will call him the claimant although he sadly died from an illness unrelated to his claim before his appeal was heard by this court.
+The respondent company is a well known operator of a chain of supermarkets.
+It has premises in Small Heath, Birmingham, which include a petrol station.
+The petrol station has a kiosk with the usual display of goods and a counter where customers pay for their purchases.
+One of the companys employees was Mr Amjid Khan.
+His job was to see that the petrol pumps and the kiosk were kept in good running order and to serve customers.
+The claimant was of Somali origin.
+On the morning of 15 March 2008 he was on his way to take part with other members of his community in an event in London.
+While he was at the petrol station he decided to inquire whether it would be possible to print some documents from a USB stick which he was carrying.
+The trial judge, Mr Recorder Khangure QC, accepted in full the claimants account of what followed.
+The claimant went into the kiosk and explained to the staff what he wanted.
+There were two or three staff present.
+Mr Khan, who was behind the counter, replied by saying We dont do such shit.
+The claimant protested at being spoken to in that manner.
+Using foul, racist and threatening language, Mr Khan ordered the claimant to leave.
+The claimant walked out of the kiosk and returned to his car by the air pump.
+He was followed by Mr Khan.
+The claimant got into his car and switched on the engine, but before he could drive off Mr Khan opened the front passenger door and told him in threatening words never to come back.
+The claimant told Mr Khan to get out of the car and shut the passenger door.
+Instead, Mr Khan punched the claimant on his left temple, causing him pain and shock.
+The claimant switched off the engine and got out in order to walk round and close the passenger door.
+At this point Mr Khan again punched him in the head, knocked him to the floor and subjected him to a serious attack, involving punches and kicks, while the claimant lay curled up on the petrol station forecourt, trying to protect his head from the blows.
+In carrying out the attack Mr Khan ignored instructions from his supervisor, who came on the scene at some stage and tried to stop Mr Khan from behaving as he did.
+The judge concluded that the reasons for Mr Khans behaviour were a matter of speculation.
+The claimant himself had said and done nothing which could be considered abusive or aggressive.
+The trial judges decision
+In a detailed and impressive judgment, the judge reviewed the principal authorities.
+He expressed great sympathy for the claimant but concluded that the company was not vicariously liable for Mr Khans unprovoked assault.
+His principal reason was that although Mr Khans job involved some interaction with customers and members of the public who attended the kiosk, it involved nothing more than serving and helping them.
+There was not a sufficiently close connection between what he was employed to do and his tortious conduct for his employer to be held vicariously liable, applying the close connection test laid down in Lister v Hesley Hall Ltd [2001] UKHL 22; [2001] 1 AC 215 and followed in later cases including Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48; [2003] 2 AC 366.
+A further reason given by the judge was that Mr Khan made a positive decision to come out from behind the counter and follow the claimant out of the kiosk in contravention of instructions given to him.
+The Court of Appeals decision
+The Court of Appeal (Arden, Treacy and Christopher Clarke LJJ) upheld the judges decision that the claim against the company failed the close connection test.
+The main points made in the judgments were that Mr Khans duties were circumscribed.
+He was not given duties involving a clear possibility of confrontation or placed in a situation where an outbreak of violence was likely.
+The fact that his employment involved interaction with customers was not enough to make his employers liable for his use of violence towards the claimant.
+Christopher Clarke LJ added that if the question had been simply whether it would be fair and just for the company to be required to compensate the claimant for his injuries from the assault, there would be strong grounds for saying that it should.
+The assault arose out of an interchange which began when the claimant asked to be supplied with a service which he thought the company could provide.
+Mr Khan, whose job it was to deal with such a request, followed up his refusal with an apparently motiveless attack on the customer, who was in no way at fault.
+The customer was entitled to expect a polite response.
+Instead he was struck on the head and kicked when on the ground.
+In those circumstances it could be said that the employer could fairly be expected to bear the cost of compensation, rather than that the victim should be left without any civil remedy except against an assailant who was unlikely to be able to pay full compensation.
+However, he concluded that this was not the legal test, and that the fact that Mr Khans job involved interaction with the public did not provide the degree of connection between his employment and the assault which was necessary for the employer to be held vicariously liable.
+Christopher Clarke LJ said that he was attracted for a time by the proposition that the assault could be looked at as a perverse execution of Mr Khans duty to engage with customers, but he considered that such an approach parted company with reality.
+Grounds of appeal
+In this court the claimants primary argument was that the time has come for a new test of vicarious liability.
+In place of the close connection test the courts should apply a broader test of representative capacity.
+In the case of a tort committed by an employee, the decisive question should be whether a reasonable observer would consider the employee to be acting in the capacity of a representative of the employer at the time of committing the tort.
+A company should be liable for the acts of its human embodiment.
+In the present case, Mr Khan was the companys employed representative in dealing with a customer.
+What mattered was not just the closeness of the connection between his duties to his employer and his tortious conduct, but the setting which the employer had created.
+The employer created the setting by putting the employee into contact and close physical proximity with the claimant.
+Alternatively, it was argued that the claimant should in any event have succeeded because he was a lawful visitor to the premises and Mr Khan was acting within the field of activities assigned to him in dealing with the claimant.
+Origins and development of vicarious liability
+The development of the doctrine of vicarious liability can be traced to a number of factors; in part to legal theories, of which there have been several; in part to changes in the structure and size of economic and other (eg charitable) enterprises; and in part to changes in social attitudes and the courts sense of justice and fairness, particularly when faced with new problems such as cases of sexual abuse of children by people in a position of authority.
+According to Holdsworths A History of English Law (1908) (vol 3, pp 383 387) in medieval times the general principle was that a master was only liable at civil law for misdeeds of his servants if done by his command and consent.
+It would be against all reason, said counsel in the reign of Henry IV, to impute blame or default to a man, when he has none in him, for the carelessness of his servants cannot be said to be his act (YB 2 Hy IV Pasch pl 5).
+But there were some exceptions, which today would be classed as instances of non delegable duty.
+Liability for damage by fire was an example.
+The law imposed on house holders a duty to keep their fires from damaging their neighbours.
+If a fire was caused by a servant or guest, and it damaged a neighbours house, the owner was liable.
+He could escape liability only by showing that the fire originated from the act of a stranger (YB 2 Hy IV Pasch pl 6).
+The 17th century was a century of expansion of commerce and industry, and vicarious liability began to be broadened.
+Holt CJ was particularly influential in this development.
+In Boson v Sandford (1691) 2 Salk 440 a shipper of goods sued the ship owner for damage caused by the negligence of the master.
+Eyre J held that there was no difference between a land carrier and a water carrier, and therefore the owners were under a special liability as carriers for the acts of their servants; but Holt CJ rested his judgment on the broad principle that whoever employs another is answerable for him, and undertakes for his care to all that make use of him. (The action failed on a technical pleading point.)
+In Tuberville v Stamp (1698) 1 Ld Raym 264, Skinner 681, SC Comb 459, the plaintiff complained that the defendants servant lit a fire on heath land which destroyed the heath growing on the plaintiffs land.
+The majority of the judges held that the plaintiff had a cause of action under the medieval rule about liability for fire; but Holt CJ doubted whether that rule applied to fires other than in houses, and he based liability (according to the report in Comb.) on the broader ground that if my servant doth anything prejudicial to another, it shall bind me, when it may be presumed that he acts by my authority, being about my business.
+Holt CJ did not confine this principle to cases of negligence.
+In Hern v Nichols (1700) 1 Salk 289, the plaintiff brought an action on the case for deceit, alleging that he bought several parcels of silk under a fraudulent representation by the defendants factor that it was another kind of silk.
+The factor was operating overseas and there was no evidence of deceit on the part of the defendant personally.
+Holt CJ held that the defendant was nevertheless liable for seeing somebody must be a loser by this deceit, it is more reason that he that employs and puts a trust and confidence in a deceiver should be a loser, than a stranger.
+Holt CJ gave the same explanation for the development of the principle in Sir Robert Waylands Case (1706) 3 Salk 234, the master at his peril ought to take care what servant he employs; and it is more reasonable that he should suffer for the cheats of his servant than strangers and tradesmen.
+Holt CJ also held that for the master to be liable the servants act had to be within the area of the authority given to him: Middleton v Fowler (1699) 1 Salk 282.
+Holdsworth noted that the first case in which the modern principle can begin to be seen was the admiralty case of Boson v Sandford, and he considered it not unlikely that necessities arising from the demands of the commercial world, and the influence of Roman law on the admiralty courts, led to the introduction of ideas which then permeated to the common law courts (vol 8, p 476).
+He also observed that this was only one of the influences and that a number of reasons were put forward to explain the basis of vicarious liability.
+These he summarised as follows (at p 477): It was sometimes put on the ground that the master by implication undertakes to answer for his servants tort which is clearly not true.
+Sometimes it was put on the ground that the servant had an implied authority so to act which again is clearly not true.
+Sometimes it was grounded on the fiction that the wrong of the servant is the wrong of the master, from which the conclusion was drawn that the master must be liable because no man shall be allowed to make any advantage of his own wrong; and sometimes on the ground that the master who chooses a careless servant is liable for making a careless choice.
+Blackstone gives all these reasons for this principle.
+In addition, he deals with the totally different case where a master has actually authorised the commission of a tort; and cites most of the mediaeval cases of vicarious liability with the special reasons for each of them.
+It is not surprising that he should take refuge in the maxim qui facit per alium facit per se or that others should have used in a similar way the maxim respondeat superior.
+His treatment of the matter illustrates the confusion of the authorities; and it is noteworthy that he does not allude to the true reason for the rule the reason of public policy which Holt CJ, gave in Hern v Nichols and in Waylands Case.
+In Barwick v English Joint Stock Bank (1867) 2 LR Exch 259, 265, Willes J described it as settled since Lord Holts time that a principal is answerable for the act of an agent in the course of his business, but it was argued in that case (despite the decision in Hern v Nichols) that a principal was not liable for a fraudulent act of his agent.
+Willes J rejected that argument, holding that no sensible distinction can be drawn between the case of fraud and the case of any other wrong.
+He cited authorities in which the doctrine had been applied, for example, in cases of direct trespass to goods and false imprisonment, and he observed (at p 266): In all these cases it may be said, as it was said here, that the master has not authorized the act.
+It is true, he has not authorized the particular act, but he has put the agent in his place to do that class of acts, and he must be answerable for the manner in which the agent has conducted himself in doing the business which it was the act of his master to place him in.
+His judgment gave rise to difficulties of a different kind because it included the following statement (at p 265): The general rule is, that the master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the masters benefit, though no express command or privity of the master be proved. (Emphasis added.)
+The words in italics were used in later cases to support the argument that in order to establish vicarious liability it was necessary to show that the employees misdeed was committed for the employers benefit.
+This argument was rejected by the House of Lords in the landmark case of Lloyd v Grace, Smith & Co [1912] AC 716.
+A solicitors clerk, who was entrusted by the defendant firm with managing its conveyancing department, defrauded the plaintiff, who had come to the firm for advice about two properties left to her by her late husband.
+He advised her to sell and procured her signature on documents conveying the properties to himself, which he disposed of for his own benefit.
+It was held that the firm was liable for his fraud.
+Lord Macnaghten, who gave the leading judgment (with which Lord Loreburn LC and Lord Atkinson agreed) and Lord Halsbury both referred with approval to the general principle enunciated by Lord Holt (pp 726 727 and 732).
+Lord Macnaghten, at pp 735 736, also endorsed Lord Blackburns interpretation of Barwicks case in Houldsworth v City of Glasgow Bank (1880) 5 App Cas 317, 339, namely that the substantial point decided in that case was that an innocent principal was civilly responsible for the fraud of his authorised agent, acting within his authority, to the same extent as if it was his own fraud.
+Lord Macnaghten recognised the difficulty of trying to give a precise meaning to the expression within his authority.
+He referred at pp 732 734 to the discussion of the subject by Sir Montague Smith in Mackay v Commercial Bank of New Brunswick (1874) LR 5 PC 394, 410, who observed that since it may be generally assumed that, in mercantile transactions, principals do not authorise their agents to act fraudulently, frauds are beyond the agents authority in the narrowest sense of which the expression admits; but that so narrow a sense would be opposed to justice and so a wider construction had been put on the words, and that it was difficult to define how far it went.
+Lord Macnaghten (at p 736) agreed that what is meant by the expressions acting within his authority, acting in the course of his employment and acting within the scope of his agency (as applied to an agent) is not easy to define, but he said that whichever expression is used, it must be construed liberally.
+Lord Macnaghten noted that it was within the scope of the clerks employment to advise clients regarding the best way to sell property and the execution of any necessary documents.
+He concluded that the clerk was therefore acting within the scope of his employment.
+Lord Macnaghten also made the broader point that it would be unjust if the firm were not held liable.
+The clerk was its accredited representative: p 738.
+It was right that the loss from his fraud should be suffered by the person who placed him in that position rather than the client who dealt with him as the firms representative.
+Although taking properties from the plaintiff was far removed from what the wrongdoer was employed to do, the justice of the decision is obvious.
+The wrongdoer was trusted both by his firm and by its client.
+They were each innocent, but one of them had to bear the loss, and it was right that it should be the employer on the principle stated by Lord Holt in Hern v Nichols.
+The firm employed the wrongdoer and placed him in a position to deal with the claimant; he abused that position and took advantage of her.
+It was fairer that the firm should suffer for the cheating by their employee than the client who was cheated.
+In 1907 Salmond published the first edition of his text book on the Law of Torts.
+He defined a wrongful act by a servant in the course of his employment as either (a) a wrongful act authorised by the master or (b) a wrongful and unauthorised mode of doing some act authorised by the master, with the amplification that a master is liable for acts which he has not authorised if they are so connected with acts which he has authorised, that they may rightly be regarded as modes although improper modes of doing them (pp 83 84).
+Salmonds formula, repeated in later editions, was cited and applied in many cases, sometimes by stretching it artificially; but even with stretching, it was not universally satisfactory.
+The difficulties in its application were particularly evident in cases of injury to persons or property caused by an employees deliberate act of misconduct.
+In Petterson v Royal Oak Hotel Ltd [1948] NZLR 136 a barman refused to serve a drunken customer with more alcohol.
+As the customer was on his way out of the premises, he threw a glass at the barman which broke in pieces at his feet.
+The barman picked up a piece of the broken glass and threw it back at the departing customer, but missed him and injured the eye of another customer, who sued for damages.
+The trial judge found that the barman threw the piece of glass not in order to expedite the departure of the troublesome customer, but as an expression of his personal resentment at the glass being thrown at him.
+He found for the claimant and his judgment was upheld by the Court of Appeal.
+The Salmond formula was cited in argument.
+The Court of Appeal held that the barmans act was an improper mode of doing his job of keeping order in the bar and avoiding altercations, although at the time the customer was leaving.
+The justice of the result is obvious.
+The claimant was struck in the eye by a piece of glass thrown by the barman who was on duty, and there would be something wrong with the law if he was not entitled to compensation from the company which employed the barman.
+A barman needs to be capable of acting with restraint under provocation, for the safety of other customers, and if the proprietor engaged someone who was incapable of doing so and who injured an innocent customer, it would be wrong for the customer to be left with his only remedy against the barman.
+But to rationalise the result by describing the barmans loss of temper and act of retaliation as a mode, but improper mode, of keeping order and avoiding altercation is an unnatural use of words.
+Deatons Pty Ltd v Flew (1949) 79 CLR 370 had similarities to Petterson but was decided differently.
+According to the jurys verdict, the claimant was the victim of an unprovoked attack by a barmaid on duty in a hotel when he asked her for the manager.
+She threw a glass of beer over him and then threw the glass in his face, causing him the loss of sight in one eye.
+The High Court of Australia held that there was no basis for finding that the barmaid was acting in the course of her employment.
+They rejected the argument that her conduct was incidental to her employment in that it was a method, though an improper method, of responding to an inquiry from a customer.
+They also rejected the argument, which had succeeded in Petterson, that her conduct was an improper mode of keeping order.
+Dixon J gave two reasons: first, that she did not throw the glass in the course of keeping discipline, and secondly, that she was not in charge of the bar, but was working under the supervision of another woman.
+I agree that it was tortuous and artificial to describe the barmaids conduct as a mode of performing what she was employed to do, but that does not make the result just.
+In a broader sense it occurred in the course of her employment.
+She was employed by the hotel proprietor to serve customers.
+She was approached in that capacity by a customer, and ordinary members of the public would surely expect the company who employed her to serve customers to have some responsibility for her conduct towards them.
+And it surely cannot be right that the measure of the companys responsibility should depend on whether she was the head barmaid or an assistant.
+The customer would have no knowledge what were the exact limits of her responsibilities.
+In Warren v Henlys Ltd [1948] 2 All ER 935 a customer at a petrol station had an angry confrontation with the petrol station attendant, who wrongly suspected him of trying to make off without payment.
+The customer became enraged at the manner in which he was spoken to by the attendant.
+After paying for the petrol, the customer saw a passing police car and drove off after it.
+He complained to the police officer about the attendants conduct and persuaded the officer to return with him to the petrol station.
+The officer listened to both men and indicated that he did not think that it was a police matter, whereupon the customer said that he would report the attendant to his employer.
+The officer was on the point of leaving, when the attendant punched the customer in the face, knocking him to the ground.
+Hilbery J held that the assault was not committed in the course of the attendants employment, applying the Salmond formula.
+By the time that the assault happened the customers business with the petrol station had ended, the petrol had been paid for and the customer had left the premises.
+When he returned with the police officer it was for the purpose of making a personal complaint about the attendant.
+The attendant reacted violently to being told that the customer was going to report him to his employer, but there was no basis for holding the employer vicariously liable for that behaviour.
+The judge was right to dismiss the customers claim against the petrol company.
+At the time of the incident the relationship between the plaintiff and the attendant had changed from that of customer and representative of the petrol company to that of a person making a complaint to the police and the subject of the complaint.
+In Lister v Hesley Hall Ltd [2002] 1 AC 215 Lord Millett commented, at para 80, that the better view may have been that the employer was not liable because it was no part of the duties of the pump attendant to keep order, but there is no suggestion in the report of the case that there was any other employee in practical charge of the forecourt and cash desk area.
+If the attendant had punched the customer because he believed, rightly or wrongly, that the customer was leaving without payment, I would regard such conduct as occurring within the course of his employment.
+In Keppel Bus Co Ltd v Ahmad [1974] 1 WLR 1082 the plaintiff was travelling in a bus when the conductor treated an elderly lady passenger in a high handed and rude fashion.
+The plaintiff remonstrated with him.
+An altercation followed in which each tried to hit the other.
+They were separated by the passengers, but the conductor struck the plaintiff in the eye with his ticket punch, causing loss of sight in the eye.
+The trial judge and the Singapore Court of Appeal held that the bus company was vicariously liable, but the Privy Council decided otherwise.
+The Board applied the Salmond formula.
+It held that the conductors conduct could not be described as a wrong mode of performing the work which he was expressly or impliedly authorised to do.
+He could not be described as maintaining order in the bus; if anyone was keeping order in the bus, it was the passengers.
+The Board rejected the argument that his job could be described as managing the bus and that his conduct arose out of his power and duty to do so.
+The case illustrates again the awkwardness of the Salmond formula when applied to such situations.
+Looked at more broadly, the bus company selected the conductor for employment and put him in charge of the passenger area of the bus.
+He abused the position of authority which his employment gave him.
+Because he was throwing his weight around as the conductor, the plaintiff objected.
+Because the conductor objected to what he appeared to regard as interference with the exercise of his authority, he struck the plaintiff in the face. (The trial judge summarised it by saying that He was in effect telling the plaintiff by his act not to interfere with him in his due performance of his duties: p 1084.) In such circumstances it was just that the passenger should be able to look to the company for compensation.
+In two noteworthy cases the court took a broader approach to the question of scope of employment.
+Their significance is enhanced by the fact that they were cited with approval in Lister.
+796, 802, Lord Cullen said: In Central Motors (Glasgow) Ltd v Cessnock Garage and Motor Co 1925 SC The question is not to be answered merely by applying the test whether the act in itself is one which the servant was authorised or ordered or forbidden to do.
+The employer has to shoulder responsibility on a wider basis; and he may, and often does, become responsible to third parties for acts which he has expressly or impliedly forbidden the servant to do.
+It remains necessary to the masters responsibility that the servants act be one done within the sphere of his service or the scope of his employment, but it may have this character although it consists in doing something which is the very opposite of what the servant has been intended or ordered to do, and which he does for his own private ends.
+An honest master does not employ or authorise his servant to commit crimes of dishonesty towards third parties; but nevertheless he may incur liability for a crime of dishonesty committed by the servant if it was committed by him within the field of activities which the employment assigned to him, and that although the crime was committed by the servant solely in pursuance of his own private advantage.
+The expression within the field of activities assigned to the employee is helpful.
+It conjures a wider range of conduct than acts done in furtherance of his employment.
+In Rose v Plenty [1976] 1 WLR 141 a milk roundsman paid a 13 year old boy to help him collect and deliver milk bottles, in disregard of his employers rule prohibiting children from being carried on milk floats.
+The boy was injured when he fell off a milk float as a result of the employees negligent driving.
+The trial judge dismissed the boys claim against the employer on the ground that the employee was acting outside the scope of his employment and that the boy was a trespasser on the float, but his decision was reversed by a majority of the Court of Appeal.
+Lord Denning, MR dealt with the matter briefly, holding that in taking the boy on the milk float the employee was still acting within the sphere of his employment.
+Scarman LJ considered the point at greater length, at pp 147 148: In words which have frequently been quoted both in the courts and in the universities, Salmond on Torts, 16th ed (1973), p 462, refers to the basis of vicarious liability for accidental damage as being one of public policy.
+That view is supported by quotations (dated no doubt, but still full of life) of a dictum of Lord Brougham and of another, 100 years or more earlier, of Sir John Holt.
+That it is socially convenient and rough justice to make an employer liable for the torts of his servant in the cases to which the principle applies, was recognised in Limpus v London General Omnibus Co, 1 H & C 526; see the judgment of Willes J at p 539.
+I think it important to realise that the principle of vicarious liability is one of public policy.
+It is not a principle which derives from a critical or refined consideration of other concepts in the common law, for example, the concept of trespass or indeed the concept of agency.
+No doubt in particular cases it may be relevant to consider whether a particular plaintiff was or was not a trespasser.
+Similarly, when, as I shall indicate, it is important that one should determine the course of employment of the servant, the law of agency may have some marginal relevance.
+But basically, as I understand it, the employer is made vicariously liable for the tort of his employee not because the plaintiff is an invitee, nor because of the authority possessed by the servant, but because it is a case in which the employer, having put matters into motion, should be liable if the motion which he has originated leads to damage to another.
+What is the approach which the cases identify as the correct approach in order to determine this question of public policy? First, one looks to see whether the servant has committed a tort upon the plaintiff The next question is whether the employer should shoulder the liability for compensating the person injured by the tort [I]t does appear to me to be clear, since the decision of Limpus v London General Omnibus Co, 1 H & C 526, that that question has to be answered by directing attention to what the servant was employed to do when he committed the tort that has caused damage to the plaintiff.
+The servant was, of course, employed at the time of the accident to do a whole number of operations.
+He was certainly not employed to give the boy a lift, and if one confines ones analysis of the facts to the incident of injury to the plaintiff, then no doubt one would say that carrying the boy on the float giving him a lift was not in the course of the servants employment.
+But in Ilkiw v Samuels [1963] 1 WLR 991 Diplock LJ indicated that the proper approach to the nature of the servants employment is a broad one.
+He says, at p 1004: As each of these nouns implies he is referring to the nouns used to describe course of employment, sphere, scope and so forth the matter must be looked at broadly, not dissecting the servants task into its component activities such as driving, loading, sheeting and the like by asking: what was the job on which he was engaged for his employer? and answering that question as a jury would.
+Lister v Hesley Hall Ltd
+In Lister the House of Lords was faced with the problem of the application of the doctrine of vicarious liability to the warden of a school boarding house who sexually abused the children in his care.
+The Salmond formula was stretched to breaking point.
+Even on its most elastic interpretation, the sexual abuse of the children could not be described as a mode, albeit an improper mode, of caring for them.
+Drawing on Scarman LJs approach, Lord Steyn (with whom Lords Hutton and Hobhouse agreed) spoke of the pitfalls of terminology and said that it was not necessary to ask whether the acts of sexual abuse were modes of doing authorised acts.
+He posed the broad question whether the wardens torts was so closely connected with his employment that it would be just to hold the employers liable.
+He concluded that the employers were vicariously liable because they undertook the care of the children through the warden and he abused them.
+There was therefore a close connection between his employment and his tortious acts.
+To similar effect, Lord Clyde said that the warden had a general duty to look after the children, and the fact that he abused them did not sever the connection with his employment; his acts had to be seen in the context that he was entrusted with responsibility for their care, and it was right that his employers should be liable for the way in which he behaved towards them as warden of the house.
+In adopting the approach which he did, Lord Steyn referred to the judgment of McLachlin J in Bazley v Curry (1999) 174 DLR (4th) 45.
+McLachlin J summarised the public policy justification for imposing vicarious liability, at para 31, in a similar fashion to Holt and Scarman LJ: The employer puts in the community an enterprise which carries with it certain risks.
+When those risks materialize and cause injury to a member of the public despite the employers reasonable efforts, it is fair that the person or organisation that creates the enterprise and hence the risk should bear the loss.
+Compare Scarman LJs statement that the employer, having put matters into motion, should be liable if the motion which he has originated leads to damage to another.
+This thinking has been prominent in cases since Lister as the social underpinning of the doctrine of vicarious liability, but the court is not required in each case to conduct a retrospective assessment of the degree to which the employee would have been considered to present a risk.
+As Immanuel Kant wrote, Out of the crooked timber of humanity, no straight thing was ever made.
+The risk of an employee misusing his position is one of lifes unavoidable facts.
+In Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48; [2003] 2 AC 366, the House of Lords applied the Lister approach to vicarious liability in a case of commercial fraud.
+Lord Nicholls (with whom Lords Slynn and Hutton agreed) said: 22. [I]t is a fact of life, and therefore to be expected by those who carry on businesses, that sometimes their agents may exceed the bounds of their authority or even defy express instructions.
+It is fair to allocate risk of losses thus arising to the businesses rather than leave those wronged with the sole remedy, of doubtful value, against the individual employee who committed the wrong.
+To this end, the law has given the concept of ordinary course of employment an extended scope.
+If, then, authority is not the touchstone, what is? . 23.
+Perhaps the best general answer is that the wrongful conduct must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful act may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firms business or the employees employment (Original emphasis) 25.
+This close connection test focuses attention in the right direction.
+But it affords no guidance on the type or degree of connection which will normally be regarded as sufficiently close to prompt the legal conclusion that the risk of the wrongful act occurring, and any loss flowing from the wrongful act, should fall on the firm or employer rather than the third party who was wronged. 26.
+This lack of precision is inevitable, given the infinite range of circumstances where the issue arises.
+The crucial feature or features, either producing or negativing vicarious liability, vary widely from one case or type of case to the next.
+Essentially the court makes an evaluative judgment in each case, having regard to all the circumstances and, importantly, having regard to the assistance provided by previous court decisions.
+The close connection test adumbrated in Lister and Dubai Aluminium has been followed in a line of later cases including several at the highest level: Bernard v Attorney General of Jamaica [2004] UKPC 47; [2005] IRLR 398, Brown v Robinson [2004] UKPC 56, Majrowski v Guys and St Thomass NHS Trust [2006] UKHL 34; [2007] 1 AC 224 and Various Claimants v Catholic Child Welfare Society [2012] UKHL 56; [2013] 2 AC 1 (the Christian Brothers case).
+In the Christian Brothers case Lord Phillips of Worth Matravers said at para 74 that it is not easy to deduce from Lister the precise criteria that will give rise to vicarious liability for sexual abuse (or, he might have added, other abuse), and that the test of close connection tells one nothing about the nature of the connection.
+However, in Lister the court was mindful of the risk of over concentration on a particular form of terminology, and there is a similar risk in attempting to over refine, or lay down a list of criteria for determining, what precisely amounts to a sufficiently close connection to make it just for the employer to be held vicariously liable.
+Simplification of the essence is more desirable.
+The present law
+In the simplest terms, the court has to consider two matters.
+The first question is what functions or field of activities have been entrusted by the employer to the employee, or, in everyday language, what was the nature of his job.
+As has been emphasised in several cases, this question must be addressed broadly; see in particular the passage in Diplock LJs judgment in Ilkiw v Samuels [1963] 1 WLR 991, 1004 included in the citation from Rose v Plenty at para 38 above, and cited also in Lister by Lord Steyn at para 20, Lord Clyde at para 42, Lord Hobhouse at para 58 and Lord Millett at para 77.
+Secondly, the court must decide whether there was sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice which goes back to Holt.
+To try to measure the closeness of connection, as it were, on a scale of 1 to 10, would be a forlorn exercise and, what is more, it would miss the point.
+The cases in which the necessary connection has been found for Holts principle to be applied are cases in which the employee used or misused the position entrusted to him in a way which injured the third party.
+Lloyd v Grace, Smith & Co, Peterson and Lister were all cases in which the employee misused his position in a way which injured the claimant, and that is the reason why it was just that the employer who selected him and put him in that position should be held responsible.
+By contrast, in Warren v Henlys Ltd any misbehaviour by the petrol pump attendant, qua petrol pump attendant, was past history by the time that he assaulted the claimant.
+The claimant had in the meantime left the scene, and the context in which the assault occurred was that he had returned with the police officer to pursue a complaint against the attendant.
+Contrary to the primary submission advanced on the claimants behalf, I am not persuaded that there is anything wrong with the Lister approach as such.
+It has been affirmed many times and I do not see that the law would now be improved by a change of vocabulary.
+Indeed, the more the argument developed, the less clear it became whether the claimant was advocating a different approach as a matter of substance and, if so, what the difference of substance was.
+The present case
+In the present case it was Mr Khans job to attend to customers and to respond to their inquiries.
+His conduct in answering the claimants request in a foul mouthed way and ordering him to leave was inexcusable but within the field of activities assigned to him.
+What happened thereafter was an unbroken sequence of events.
+It was argued by the respondent and accepted by the judge that there ceased to be any significant connection between Mr Khans employment and his behaviour towards the claimant when he came out from behind the counter and followed the claimant onto the forecourt.
+I disagree for two reasons.
+First, I do not consider that it is right to regard him as having metaphorically taken off his uniform the moment he stepped from behind the counter.
+He was following up on what he had said to the claimant.
+It was a seamless episode.
+Secondly, when Mr Khan followed the claimant back to his car and opened the front passenger door, he again told the claimant in threatening words that he was never to come back to the petrol station.
+This was not something personal between them; it was an order to keep away from his employers premises, which he reinforced by violence.
+In giving such an order he was purporting to act about his employers business.
+It was a gross abuse of his position, but it was in connection with the business in which he was employed to serve customers.
+His employers entrusted him with that position and it is just that as between them and the claimant, they should be held responsible for their employees abuse of it.
+Mr Khans motive is irrelevant.
+It looks obvious that he was motivated by personal racism rather than a desire to benefit his employers business, but that is neither here nor there.
+LORD DYSON:
+As Lord Toulson has explained, the test for holding an employer vicariously liable for the tort of his employee has troubled the courts for many years.
+The close connection test (whether the employees tort is so closely connected with his employment that it would be just to hold the employer liable) was first articulated in this jurisdiction by the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215.
+It has been subsequently followed in many cases, including several at the highest level: see para 42 above.
+As Lord Nicholls said in Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48; [2003] 2 AC 366, para 26, the test is imprecise, but that is inevitable given the infinite range of circumstances where the issue of vicarious liability arises.
+The court, he said, has to make an evaluative judgment in each case, having regard to all the circumstances and to the assistance provided by previous court decisions on the facts of other cases.
+I would allow the appeal.
+The appellant in his application for permission to appeal in the present case argued that this court should reformulate the close connection test.
+In his written case, he submitted that it should be refined or replaced altogether in order to reflect modern views of justice; to advance the doctrines underlying policy considerations [underlying vicarious liability]; and to set clearer and less arbitrary boundaries.
+Accordingly, he submitted that the test for vicarious liability should be whether the employee (described as an authorised representative of the employer) commits the tort in circumstances where the reasonable observer would consider the employee to be acting in that representative capacity.
+The close connection test has now been repeatedly applied by our courts for some 13 years.
+In my view, it should only be abrogated or refined if a demonstrably better test can be devised.
+Far from being demonstrably better, the proposed new test is hopelessly vague.
+What does representative capacity mean in this context? And by what criteria is the court to determine the circumstances in which the reasonable observer would consider the employee to be acting in a representative capacity? I do not see how this test is more precise than the close connection test or how it better reflects modern views of justice.
+The attraction of the close connection test is that it is firmly rooted in justice.
+It asks whether the employees tort is so closely connected with his employment as to make it just to hold the employer liable.
+It is true that the test is imprecise.
+But this is an area of the law in which, as Lord Nicholls said, imprecision is inevitable.
+To search for certainty and precision in vicarious liability is to undertake a quest for a chimaera.
+Many aspects of the law of torts are inherently imprecise.
+For example, the imprecise concepts of fairness, justice and reasonableness are central to the law of negligence.
+The test for the existence of a duty of care is whether it is fair, just and reasonable to impose such a duty.
+The test for remoteness of loss is one of reasonable foreseeability.
+Questions such as whether to impose a duty of care and whether loss is recoverable are not always easy to answer because they are imprecise.
+But these tests are now well established in our law.
+To adopt the words of Lord Nicholls, the court has to make an evaluative judgment in each case having regard to all the circumstances and having regard to the assistance provided by previous decisions on the facts of other cases.
+In Various Claimants v Catholic Child Welfare Society [2012] UKSC 56; [2013] 2 AC 1 Lord Phillips said at para 19 the law of vicarious liability is on the move.
+It is true that there have been developments in the law as to the type of relationship that has to exist between an individual and a defendant for vicarious liability to be imposed on the defendant in respect of a tort committed by that individual.
+These developments have been a response to changes in the legal relationships between enterprises and members of their workforces and the increasing complexity and sophistication of the organisation of enterprises in the modern world.
+A good example is provided by the facts of the Catholic Child Welfare Society case itself.
+But there is no need for the law governing the circumstances in which an employer should be held vicariously liable for a tort committed by his employee to be on the move.
+There have been no changes in societal conditions which require such a development.
+The changes in the case law relating to the definition of the circumstances in which an employer is vicariously liable for the tort of his employee have not been made in response to changing social conditions.
+Rather they have been prompted by the aim of producing a fairer and more workable test.
+Unsurprisingly, this basic aim has remained constant.
+The Salmond test defined a wrongful act by a servant in the course of his employment as either (a) a wrongful act authorised by the master or (b) a wrongful and unauthorised mode of doing some act authorised by the master: Salmond, Law of Torts, 1st ed (1907), p 83; and Salmond & Heuston on the Law of Torts, 21st ed (1996), p 443.
+As Lord Steyn said in Lister at para 20, this was simply a practical test serving as a dividing line between cases where it is or is not just to impose vicarious liability (emphasis added).
+The importance of Lister (and the Canadian case of Bazley v Curry (1999) 174 DLR (4th) 45 whose reasoning it adopted) is that it recognised the difficulty created by the second limb of the Salmond test.
+This was not effective for determining the circumstances in which it was just to hold an employer vicariously liable for committing an act not authorised by the employer.
+The close connection test was introduced in order to remedy this shortcoming.
+This improvement was achieved by the simple expedient of explicitly incorporating the concept of justice into the close connection test.
+The new test was, therefore, by definition more effective than the Salmond test for determining the circumstances in which it is just to hold an employer vicariously liable for the unauthorised acts of his employee.
+It is difficult to see how the close connection test might be further refined.
+It is sufficient to say that no satisfactory refinement of the test has been suggested in the present case.
+As regards the facts of the present case, I agree with the analysis of Lord Toulson and the reasons he gives at paras 47 and 48 for holding that the defendants are liable for the assault committed by Mr Khan.
+For these reasons as well as those given by Lord Toulson, I would allow this appeal.
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+The law of vicarious liability is on the move.
+So Lord Phillips said, in the last judgment which he delivered as President of this court, in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56; [2013] 2 AC 1 (the Christian Brothers case), para 19.
+It has not yet come to a stop.
+This appeal, and the companion appeal in Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11, provide an opportunity to take stock of where it has got to so far.
+The scope of vicarious liability depends upon the answers to two questions.
+First, what sort of relationship has to exist between an individual and a defendant before the defendant can be made vicariously liable in tort for the conduct of that individual? Secondly, in what manner does the conduct of that individual have to be related to that relationship, in order for vicarious liability to be imposed on the defendant? Although the answers to those questions are inter connected, the present appeal is concerned with the first question, and approaches it principally in the light of the judgment in the Christian Brothers case, where the same issue was considered.
+The appeal in the case of Mohamud is concerned with the second question, and approaches it principally in the light of the historical development of this branch of the law.
+As will appear, the present judgment also seeks to relate the approach adopted to the first question to ideas which have long been present in the law.
+The two judgments are intended to be complementary.
+The first question arises in this case in relation to a public authority performing statutory functions for the public benefit, on the one hand, and an individual whose activities form part of the means by which the authority performs its functions, on the other hand.
+Specifically, the question is whether the prison service, which is an executive agency of the appellant, the Ministry of Justice, is vicariously liable for the act of a prisoner in the course of his work in a prison kitchen, where the act is negligent and causes injury to a member of the prison staff.
+The accident
+At the material time the respondent, Mrs Cox, worked as the catering manager at HM Prison Swansea.
+She had day to day charge of all aspects of catering at the prison, including the operation of the kitchen, where meals were produced for the prisoners.
+She was in charge of four members of staff.
+There were also about 20 prisoners who worked in the kitchen and came under her supervision.
+On 10 September 2007 Mrs Cox was working in the kitchen with a catering assistant and about 20 prisoners.
+Some kitchen supplies were delivered to the ground floor of the prison, and Mrs Cox instructed four prisoners to take them upstairs to the kitchen stores.
+During the course of this operation, a sack of rice was dropped by one of the prisoners and burst open.
+Mrs Cox bent down to prop it up and prevent spillage.
+While she was bent over, another prisoner, Mr Inder, attempted to carry two sacks past her, lost his balance, and dropped one of the sacks on to Mrs Coxs back, causing her injury.
+It is accepted that Mr Inder was negligent.
+The relevant legislation and practice
+Rule 31(1) of the Prison Rules 1999 (SI 1999/728) provides that a convicted prisoner shall be required to do useful work for not more than ten hours a day.
+In terms of rule 31(3), no prisoner shall be set to do work not authorised by the Secretary of State.
+Those provisions apply to prisoners detained in privately operated prisons as well as to those operated by the prison service.
+The Ministrys current policy in relation to prisoners work is explained in the Green Paper, Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders (2010) (Cm 7972).
+According to that document, the Ministry wants prisons to use the discipline and routine of regular working hours to instil an ethos of hard work into prisoners.
+Prison should be a place where work is central to the regime, and where offenders learn vocational skills in environments organised to replicate, as far as practical and appropriate, real working conditions.
+The document speaks of the working prison, where prisoners work a full working week, and education is geared primarily to providing prisoners with skills enabling them to perform work effectively and to get a job on release.
+It is said that, in public prisons, 9,000 prisoners are employed in prison workshops, with many more doing essential jobs to help prisons run smoothly.
+Work may be provided either by the prison or by external providers in the private, voluntary and community sectors.
+Prisoners may work either inside or outside the prison.
+In the latter situation, they may undertake voluntary or charitable work, or may undertake paid work for outside employers.
+Work within a prison kitchen, in particular, is regarded as providing a good working environment, with regular hours and the ability to gain nationally recognised vocational qualifications.
+Prisoners can apply to work in the kitchen, and a selection is made after relevant assessments have been carried out, including a risk assessment considering such matters as the prisoners temperament, potential security implications, any relevant medical or hygiene problems, and the need for any relevant training in relation to such matters as manual lifting or other skills.
+At Swansea in particular, prisoners were assessed for their suitability to work in the kitchen by the Inmate Regime Employment Board, a panel which carried out risk assessments and decided where prisoners should work around the prison.
+Those selected for work in the kitchen numbered about 20, out of a total of about 400 prisoners.
+They received instruction and training in relation to such matters as food hygiene, the safe use of kitchen equipment and other aspects of safety at work.
+Each prisoner had a training record to show what instruction he had received.
+The prisoners worked alongside civilian catering staff as part of the team comprising the catering department, and were accountable to the catering manager and the other civilian staff.
+They were subject to day to day supervision by the catering staff, and could be removed from the catering department in the event that their performance was unsatisfactory.
+Mr Inders instructions required him to work a six day week, from 8.30 am to 5 pm each day, with a break for lunch.
+Under rule 31(6) of the Prison Rules, prisoners may be paid for their work at rates approved by the Secretary of State.
+It is the Ministrys policy, as set out in Prison Service Order No 4460 (the PSO), entitled Prisoners Pay, that all prisoners who participate in purposeful activity must be paid.
+The purpose of paying prisoners is explained as being to encourage and reward their constructive participation in the regime of the establishment.
+Prisoners doing work in pursuance of prison rules are expressly excluded from the scope of the national minimum wage: National Minimum Wage Act 1998, section 45.
+At the time of the accident, Mr Inder was paid 11.55 per week.
+If prisoners did not work in the catering department, additional costs would have to be incurred in employing staff or engaging contractors.
+The PSO also states that prison governors are legally required to deduct national insurance contributions and income tax from the earnings of prisoners whose wages exceed the thresholds, and to pay employers national insurance contributions.
+Notwithstanding the terms of the PSO, it was the Ministrys position in this appeal that there was no liability to tax or national insurance on the earnings of prisoners working within prisons under prison rules.
+That was disputed on behalf of Mrs Cox, but it is unnecessary to resolve the issue.
+Whether vicarious liability should be imposed does not depend on the classification of the relationship for the purposes of taxation or national insurance.
+It is also relevant to note the legislative provisions concerned with the provision of meals in prisons.
+In terms of rule 24 of the Prison Rules, no prisoner shall be allowed to have any food other than that ordinarily provided, subject to specified exceptions.
+Prisoners therefore depend on the prison service to be fed.
+Section 51 of the Prison Act 1952 provides that all expenses incurred in the maintenance of prisoners (an expression which is defined by section 53(2) as including all necessary expenses incurred for food) shall be defrayed out of moneys provided by Parliament.
+The history of the proceedings
+The claim was heard by His Honour Judge Keyser QC in the Swansea County Court.
+In a judgment given on 3 May 2013, he found that the accident occurred because Mr Inder had failed to take reasonable care for Mrs Coxs safety, but dismissed the claim on the basis that the prison service was not vicariously liable for Mr Inders negligence.
+On the basis of a careful review of the law on vicarious liability, as stated in particular at paras 35 and 47 of Lord Phillipss judgment in the Christian Brothers case, he focused on the question whether the relationship between the prison service and Mr Inder was akin to that between an employer and an employee.
+He concluded that it was not.
+Although he accepted that there were some respects in which the prison services relationship with Mr Inder resembled employment, he considered that there was a crucial difference.
+Employment was a voluntary relationship, in which each party acted for its own advantage.
+The employer employed the employee as the means by which the employers undertaking or enterprise was carried on and furthered.
+The position regarding prisoners at work was quite different.
+The prison authorities were legally required to offer work to prisoners.
+They were required, by the policy set out in the Prison Service Order, to make payment for that work.
+Those requirements were not a matter of voluntary enterprise but of penal policy.
+The provision of work was a matter of prison discipline, of prisoners rehabilitation, and possibly of discharging the prisoners obligations to the community.
+Although the work done by prisoners might contribute to the efficient and economical operation of the prison, the situation was not one in which prisoners were furthering the business undertaking of the prison service.
+An appeal against that decision was allowed by the Court of Appeal: [2014] EWCA Civ 132; [2015] QB 107.
+McCombe LJ, giving a judgment with which Beatson and Sharp LJJ agreed, focused like the judge on paras 35 and 47 of the Christian Brothers case, and in particular on the five features listed by Lord Phillips in para 35.
+He observed that the work performed by prisoners in the kitchen was essential to the functioning of the prison, and if not done by prisoners would have to be done by someone else.
+It was therefore done on behalf of the prison service and for its benefit.
+It was part of the enterprise or business of the prison service in running the prison.
+In short, the prison service took the benefit of this work, and there was no reason why it should not take its burdens.
+Although the relationship differed from a normal employment relationship in that the prisoners were bound to the prison service not by contract but by their sentences, and also in that the prisoners wages were nominal, those differences rendered the relationship if anything closer than one of employment: it was founded not on mutuality but on compulsion.
+The Christian Brothers case
+Vicarious liability in tort is imposed upon a person in respect of the act or omission of another individual, because of his relationship with that individual, and the connection between that relationship and the act or omission in question.
+Leaving aside other areas of the law where vicarious liability can operate, such as partnership and agency (with which this judgment is not concerned), the relationship is classically one of employment, and the connection is that the employee committed the act or omission in the course of his employment: that is to say, within the field of activities assigned to him, as Lord Cullen put it in Central Motors (Glasgow) Ltd v Cessnock Garage & Motor Co 1925 SC 796, 802, or, adapting the words of Diplock LJ in Ilkiw v Samuels [1963] 1 WLR 991, 1004, in the course of his job, considered broadly.
+That aspect of vicarious liability is fully considered by Lord Toulson in the case of Mohamud.
+It has however long been recognised that a relationship can give rise to vicarious liability even in the absence of a contract of employment.
+For example, where an employer lends his employee to a third party, the third party may be treated as the employer for the purposes of vicarious liability.
+In recent years, the courts have sought to explain more generally the basis on which vicarious liability can arise out of a relationship other than that of employer and employee.
+The general approach to be adopted in deciding whether a relationship other than one of employment can give rise to vicarious liability, subject to there being a sufficient connection between that relationship and the tort in question, was explained by this court in the Christian Brothers case, in a judgment given by Lord Phillips with which the other members of the court agreed.
+That judgment was intended to bring greater clarity to an area of the law which had been unsettled by a number of recent decisions, including those of the House of Lords in Lister v Hesley Hall Ltd [2001] UKHL 22; [2002] 1 AC 215 and Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48; [2003] 2 AC 366.
+The case concerned the question whether the Institute of the Brothers of the Christian Schools, an international unincorporated association whose mission was to provide children with a Christian education, was vicariously liable for the sexual abuse of children by members of the institute, otherwise known as brothers, who taught at an approved school.
+Another organisation managed the school and employed the brothers as teachers.
+It had been held to be vicariously liable for the abuse.
+The issue was whether the institute was also vicariously liable.
+The Supreme Court held that it was.
+Vicarious liability was thus imposed on a body which did not employ the wrongdoers, in circumstances where another body did employ them and was also vicariously liable for the same tort.
+At para 35 of his judgment, Lord Phillips stated: The relationship that gives rise to vicarious liability is in the vast majority of cases that of employer and employee under a contract of employment.
+The employer will be vicariously liable when the employee commits a tort in the course of his employment.
+There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied: (i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employees activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) the employee will, to a greater or lesser degree, have been under the control of the employer.
+At para 35 above, I have identified those incidents of the relationship between employer and employee that make it fair, just and reasonable to impose vicarious liability on a defendant.
+Where the defendant and the tortfeasor are not bound by a contract of employment, but their relationship has the same incidents, that relationship can properly give rise to vicarious liability on the ground that it is akin to that between an employer and an employee.
+At para 47, he added:
+The five factors which Lord Phillips mentioned in para 35 are not all equally significant.
+The first that the defendant is more likely than the tortfeasor to have the means to compensate the victim, and can be expected to have insured against vicarious liability did not feature in the remainder of the judgment, and is unlikely to be of independent significance in most cases.
+It is, of course, true that where an individual is employed under a contract of employment, his employer is likely to have a deeper pocket, and can in any event be expected to have insured against vicarious liability.
+Neither of these, however, is a principled justification for imposing vicarious liability.
+The mere possession of wealth is not in itself any ground for imposing liability.
+As for insurance, employers insure themselves because they are liable: they are not liable because they have insured themselves.
+On the other hand, given the infinite variety of circumstances in which the question of vicarious liability might arise, it cannot be ruled out that there might be circumstances in which the absence or unavailability of insurance, or other means of meeting a potential liability, might be a relevant consideration.
+The fifth of the factors that the tortfeasor will, to a greater or lesser degree, have been under the control of the defendant no longer has the significance that it was sometimes considered to have in the past, as Lord Phillips immediately made clear.
+As he explained at para 36, the ability to direct how an individual did his work was sometimes regarded as an important test of the existence of a relationship of master and servant, and came to be treated at times as the test for the imposition of vicarious liability.
+But it is not realistic in modern life to look for a right to direct how an employee should perform his duties as a necessary element in the relationship between employer and employee; nor indeed was it in times gone by, if one thinks for example of the degree of control which the owner of a ship could have exercised over the master while the ship was at sea.
+Accordingly, as Lord Phillips stated, the significance of control is that the defendant can direct what the tortfeasor does, not how he does it.
+So understood, it is a factor which is unlikely to be of independent significance in most cases.
+On the other hand, the absence of even that vestigial degree of control would be liable to negative the imposition of vicarious liability.
+The remaining factors listed by Lord Phillips were that (1) the tort will have been committed as a result of activity being taken by the tortfeasor on behalf of the defendant, (2) the tortfeasors activity is likely to be part of the business activity of the defendant, and (3) the defendant, by employing the tortfeasor to carry on the activity, will have created the risk of the tort committed by the tortfeasor.
+These three factors are inter related.
+The first has been reflected historically in explanations of the vicarious liability of employers based on deemed authorisation or delegation, as for example in Turberville v Stampe (1698) 1 Ld Raym 264, 265 per Holt CJ and Bartonshill Coal Co v McGuire (1858) 3 Macq 300, 306 per Lord Chelmsford LC.
+The second, that the tortfeasors activity is likely to be an integral part of the business activity of the defendant, has long been regarded as a justification for the imposition of vicarious liability on employers, on the basis that, since the employees activities are undertaken as part of the activities of the employer and for its benefit, it is appropriate that the employer should bear the cost of harm wrongfully done by the employee within the field of activities assigned to him: see, for example, Duncan v Findlater (1839) 6 Cl & Fin 894, 909 910; (1839) MacL & Rob 911, 940 per Lord Brougham and Broom v Morgan [1953] 1 QB 597, 607 608 per Denning LJ.
+The third factor, that the defendant, by employing the tortfeasor to carry on the activities, will have created the risk of the tort committed by the tortfeasor, is very closely related to the second: since the risk of an individual behaving negligently, or indeed committing an intentional wrong, is a fact of life, anyone who employs others to carry out activities is likely to create the risk of their behaving tortiously within the field of activities assigned to them.
+The essential idea is that the defendant should be liable for torts that may fairly be regarded as risks of his business activities, whether they are committed for the purpose of furthering those activities or not.
+This idea has been emphasised in recent times in United States and Canadian authorities, sometimes in the context of an economic analysis, but has much older roots, as I have explained.
+It was reaffirmed in the cases of Lister and Dubai Aluminium.
+In the latter case, Lord Nicholls of Birkenhead said at para 21: The underlying legal policy is based on the recognition that carrying on a business enterprise necessarily involves risks to others.
+It involves the risk that others will be harmed by wrongful acts committed by the agents through whom the business is carried on.
+When those risks ripen into loss, it is just that the business should be responsible for compensating the person who has been wronged.
+Lord Phillipss analysis in the Christian Brothers case wove together these related ideas so as to develop a modern theory of vicarious liability.
+The result of this approach is that a relationship other than one of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the business activities carried on by a defendant and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to the individual in question.
+Lord Phillips illustrated the approach which I have described by considering two earlier cases in the Court of Appeal.
+He discussed first its decision in Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ 1151; [2006] QB 510.
+That case concerned a situation of a kind which commonly arises in modern workplaces.
+Employees of the third defendants were supplied to the second defendants on a labour only basis, under a contract between the two companies, and worked under the supervision of a self employed person also working under a contract with the second defendant.
+The question was whether the second defendant, as well as the third, was vicariously liable for the negligence of the employees in the course of their employment.
+The Court of Appeal agreed that it was, but for different reasons: May LJ considered that the imposition of vicarious liability depended on who had the right to control the employees activities, whereas Rix LJ formulated a test which was based not on control, but on the integration of the employees into the employers business enterprise.
+He stated that vicarious liability was imposed because the employer was treated as picking up the burden of an organisational or business relationship which he had undertaken for his own benefit.
+Accordingly, what one was looking for was a situation where the employee in question, at any rate for relevant purposes, is so much a part of the work, business or organisation of both employers that it is just to make both employers answer for his negligence: p 537.
+Lord Phillips endorsed the approach of Rix LJ.
+Lord Phillips next considered the decision of the Court of Appeal in E v English Province of Our Lady of Charity [2012] EWCA Civ 938; [2013] QB 722.
+In that case, a diocesan trust, treated as being equivalent to the diocesan bishop, was held to be vicariously liable for sexual abuse committed by a Roman Catholic priest when visiting a childrens home in the diocese, on the basis that the relationship between the priest and the Roman Catholic Church was akin to employment.
+Lord Phillips summarised Ward LJs approach as asking whether the workman was working on behalf of an enterprise or on his own behalf and, if the former, how central the workmans activities were to the enterprise and whether these activities were integrated into the organisational structure of the enterprise.
+Ward LJ found it possible to describe the relationship between the bishop and the priest as being akin to employment, as Lord Phillips put it, by treating the ministry of the Roman Catholic Church as a business carried on by the bishop, by finding that the priest carried on that business under a degree of control by the bishop and by finding that the priest was part and parcel of the organisation of the business and integrated into it: [2013] 2 AC 1, paras 49, 54.
+Lord Phillips then considered the facts of the Christian Brothers case itself.
+In the context of vicarious liability, the relationship between the institute and the brothers had all the essential elements of the relationship between an employer and employees.
+The institute was subdivided into a hierarchical structure and conducted its activities as if it were a corporate body.
+The teaching activity of the brothers was undertaken because the local administration of the institute directed the brothers to undertake it.
+It was undertaken by the brothers in furtherance of the objective, or mission, of the institute.
+The manner in which the brothers were obliged to conduct themselves as teachers was dictated by the institutes rules.
+The relationship between the brothers and the institute differed from that between employer and employee in that the brothers were bound to the institute not by contract but by their vows, and in that, far from the institute paying the brothers, the brothers were obliged to transfer all their earnings to the institute.
+Neither of these differences was material.
+Indeed, they rendered the relationship between the brothers and the institute closer than that of an employer and its employees.
+The relationship was therefore sufficiently akin to that of employer and employee to be capable of giving rise to vicarious liability.
+The three cases which I have discussed illustrate the general approach set out by Lord Phillips at paras 35 and 47 of the Christian Brothers case.
+It may be said that the criteria are insufficiently precise to make their application to borderline cases plain and straightforward: a criticism which might, of course, also be made of other general principles of the law of tort.
+As Lord Nicholls observed in Dubai Aluminium at para 26, a lack of precision is inevitable, given the infinite range of circumstances where the issue arises.
+The court has to make a judgment, assisted by previous judicial decisions in the same or analogous contexts.
+Such decisions may enable the criteria to be refined in particular contexts, as Lord Phillips suggested in the Christian Brothers case at para 83.
+It is important, however, to understand that the general approach which Lord Phillips described is not confined to some special category of cases, such as the sexual abuse of children.
+It is intended to provide a basis for identifying the circumstances in which vicarious liability may in principle be imposed outside relationships of employment.
+By focusing upon the business activities carried on by the defendant and their attendant risks, it directs attention to the issues which are likely to be relevant in the context of modern workplaces, where workers may in reality be part of the workforce of an organisation without having a contract of employment with it, and also reflects prevailing ideas about the responsibility of businesses for the risks which are created by their activities.
+It results in an extension of the scope of vicarious liability beyond the responsibility of an employer for the acts and omissions of its employees in the course of their employment, but not to the extent of imposing such liability where a tortfeasors activities are entirely attributable to the conduct of a recognisably independent business of his own or of a third party.
+An important consequence of that extension is to enable the law to maintain previous levels of protection for the victims of torts, notwithstanding changes in the legal relationships between enterprises and members of their workforces which may be motivated by factors which have nothing to do with the nature of the enterprises activities or the attendant risks.
+It is also important not to be misled by a narrow focus on semantics: for example, by words such as business, benefit, and enterprise.
+The defendant need not be carrying on activities of a commercial nature: that is apparent not only from the cases of E and the Christian Brothers, but also from the long established application of vicarious liability to public authorities and hospitals.
+It need not therefore be a business or enterprise in any ordinary sense.
+Nor need the benefit which it derives from the tortfeasors activities take the form of a profit.
+It is sufficient that there is a defendant which is carrying on activities in the furtherance of its own interests.
+The individual for whose conduct it may be vicariously liable must carry on activities assigned to him by the defendant as an integral part of its operation and for its benefit.
+The defendant must, by assigning those activities to him, have created a risk of his committing the tort.
+As the cases of Viasystems, E and the Christian Brothers show, a wide range of circumstances can satisfy those requirements.
+The other lesson to be drawn from the cases of Viasystems, E and the Christian Brothers is that defendants cannot avoid vicarious liability on the basis of technical arguments about the employment status of the individual who committed the tort.
+As Professor John Bell noted in his article, The Basis of Vicarious Liability [2013] CLJ 17, what weighed with the courts in E and the Christian Brothers case was that the abusers were placed by the organisations in question, as part of their mission, in a position in which they committed a tort whose commission was a risk inherent in the activities assigned to them.
+The present case
+In the present case, the requirements laid down in the Christian Brothers case are met.
+The prison service carries on activities in furtherance of its aims.
+The fact that those aims are not commercially motivated, but serve the public interest, is no bar to the imposition of vicarious liability.
+Prisoners working in the prison kitchens, such as Mr Inder, are integrated into the operation of the prison, so that the activities assigned to them by the prison service form an integral part of the activities which it carries on in the furtherance of its aims: in particular, the activity of providing meals for prisoners.
+They are placed by the prison service in a position where there is a risk that they may commit a variety of negligent acts within the field of activities assigned to them.
+That is recognised by the health and safety training which they receive.
+Furthermore, they work under the direction of prison staff.
+Mrs Cox was injured as a result of negligence by Mr Inder in carrying on the activities assigned to him.
+The prison service is therefore vicariously liable to her.
+A number of arguments were advanced against that conclusion on behalf of the Ministry.
+First and foremost, it was argued, on a number of grounds, that the relationship between the prison service and prisoners working in a prison is fundamentally different from that between a private employer and its employees.
+The primary purpose of the prison service, in setting prisoners to work in prison, is not to advance any business or enterprise of the prison, but to support the rehabilitation of the prisoners as an aim of penal policy.
+It does not seek to make a profit, but acts in the public interest.
+Unlike employees, the prisoners have no interest in furthering the objectives of the prison service.
+Even in the Christian Brothers case, the interests of the institute and the brothers were in alignment.
+I am unable to accept this argument.
+It is true that the prison service seeks to rehabilitate prisoners, and that setting them to work is one of the means by which it attempts to achieve that objective.
+Rehabilitation is, however, not its only objective: it has also been an aim of penal policy since at least the nineteenth century to ensure, as it was put in a 1991 White Paper, that convicted prisoners contribute to the cost of their upkeep by helping with the running and maintenance of the prison and by providing goods and services in prison industries and on prison farms: Custody , Care and Justice: The Way Ahead for the Prison Service in England and Wales (1991) (Cm 1647), para 7.22.
+More importantly, when prisoners work in the prison kitchen, or in other workplaces such as the gardens or the laundry, they are integrated into the operation of the prison.
+The activities assigned to them are not merely of benefit to themselves: a benefit which is, moreover, merely potential and indirect.
+Their activities form part of the operation of the prison, and are of direct and immediate benefit to the prison service itself.
+As for the other points, I have already explained that it is not essential to the imposition of vicarious liability that the defendant should seek to make a profit.
+Nor does vicarious liability depend upon an alignment of the objectives of the defendant and of the individual who committed the act or omission in question.
+It would be as nave to imagine that all employees are subjectively committed to the interests of their employer as to imagine that no prisoner working in a prison kitchen derives any satisfaction from doing his job well or from obtaining the vocational qualifications available to him.
+The fact that a prisoner is required to serve part of his sentence in prison, and to undertake useful work there for nominal wages, binds him into a closer relationship with the prison service than would be the case for an employee.
+It strengthens, rather than weakens, the case for imposing vicarious liability.
+Secondly, other aspects of the relationship between the prison service and prisoners were said to differ from the characteristics of an ordinary employment relationship.
+The prison service was under a duty to provide useful work for prisoners.
+Its choice of workers was restricted to the prisoners who happened to be held there.
+In that regard, it was pointed out that the courts had not imposed vicarious liability in respect of compulsory pilotage, where the master of the ship was compelled to surrender the navigation of his vessel to a pilot and had no power of selection.
+Furthermore, the prisoners pay was not a commercial wage, but a payment intended to motivate them.
+These differences do not lead to the conclusion that vicarious liability should not be imposed, applying the approach approved in the Christian Brothers case.
+The fact that the incentive payments made to prisoners are below the level of a commercial wage reflects the context in which prisoners work, but does not entail that vicarious liability should not be imposed.
+The Christian Brothers case demonstrates that the payment of a wage is not essential.
+The fact that the prison service, and the operators of contracted out prisons, are under a statutory duty to provide prisoners with useful work, is not incompatible with the imposition of vicarious liability.
+The legislation does not itself exclude the imposition of vicarious liability.
+Nor is it argued that any distinct point arises under section 2(1)(a) of the Crown Proceedings Act 1947, in terms of which the Crown is subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject in respect of torts committed by its servants or agents.
+Authorities concerned with compulsory pilotage are not in point: the prison service is not required to provide particular types of employment, or to allocate particular prisoners to particular activities.
+In practice, prisoners can be allocated to a variety of workplaces both inside and outside prisons, having regard to the relevant risks.
+More particularly, the prison service is not compelled to employ prisoners in the kitchen, and has a meaningful power of selection in respect of the prisoners it chooses to employ there.
+It appears from the evidence that the prison service takes particular care when selecting prisoners who are suitable to work in the kitchen, having regard to the risks involved in that setting.
+A restricted pool from which to select a workforce was a feature of the Christian Brothers case, and is not uncommon even in ordinary cases of employment: an employer can only select from those who apply for appointment, and may often have a small pool from which to choose.
+Thirdly, it was argued that to hold the prison service vicariously liable for the acts of a prisoner would be a major development of the common law, which should be developed by the courts only cautiously.
+It does not appear to me that this case involves a major development of the law.
+The conclusion which I have reached follows from the application of the approach laid down in the Christian Brothers case.
+Fourthly, it was argued that it was always necessary to ask the broader question whether it would be fair, just and reasonable to impose vicarious liability.
+In that regard, reliance was placed on the fact that the prison service acts for the benefit of the public, and on the fact that any liability would have to be met out of scarce public funds.
+It was also argued that there was no justification for imposing vicarious liability on the prison service in addition to its common law duty of care towards Mrs Cox, and its various statutory duties.
+I do not consider that it is always necessary to ask the broader question.
+The criteria for the imposition of vicarious liability listed by Lord Phillips in the Christian Brothers case are designed, as he made clear at paras 34, 35 and 47, to ensure that it is imposed where it is fair, just and reasonable to do so.
+That was the whole point of seeking to align the criteria with the various policy justifications for its imposition.
+As I have explained, the criteria may be capable of refinement in particular contexts.
+But in cases where the criteria are satisfied, it should not generally be necessary to re assess the fairness, justice and reasonableness of the result in the particular case.
+Such an exercise, if carried out routinely, would be liable to lead to uncertainty and inconsistency.
+At the same time, the criteria are not to be applied mechanically or slavishly.
+As Lady Hale rightly observed in Woodland v Swimming Teachers Association [2013] UKSC 66; [2014] AC 537 at para 28, the words used by judges are not to be treated as if they were the words of a statute.
+Where a case concerns circumstances which have not previously been the subject of an authoritative judicial decision, it may be valuable to stand back and consider whether the imposition of vicarious liability would be fair, just and reasonable.
+The present appeal is such a case.
+On considering the matter, however, I do not regard the conclusion which I have reached as unreasonable or unjust.
+Those adjectives might more aptly describe a situation in which Mrs Coxs ability to obtain compensation for the injury she suffered at work depended entirely on whether the member of the catering team who dropped the bag of rice on her back happened to be a prisoner or a civilian member of staff.
+For the prison service to be liable to compensate a victim of negligence by a member of the prison catering team appears to me to be just and reasonable whether the negligent member of the team is a civilian or a prisoner.
+Finally, like the Fat Boy in The Pickwick Papers, counsel sought to make our flesh creep.
+It was argued that, if the present claim succeeded, there would be similar claims arising from the other activities undertaken by prisoners with a view to their rehabilitation, such as educational classes or offending behaviour programmes.
+There was also a risk of fraudulent claims being made for prisoner on prisoner incidents.
+A finding of vicarious liability might lead the prison service to adopt an unduly cautious approach to the type of tasks which prisoners were given the opportunity to do, given the potential impact on scarce financial resources.
+I am not persuaded by these apprehensions.
+It is true that prisoners who participate in educational classes or offending behaviour programmes contribute towards their own rehabilitation, and in that sense may be said to be acting in furtherance of one of the aims of the prison service.
+But there is an intelligible distinction between taking part in activities of that kind and working as an integral part of the operation of the prison and for its benefit.
+As for the risk of fraudulent claims, that risk is inherent in the law relating to compensation for personal injuries, and employers, insurers and the courts are all experienced in guarding against it.
+As for the risk of an unduly cautious approach being adopted by the prison service, that risk is entirely speculative, and is based on a consideration only of the costs potentially resulting from the imposition of vicarious liability, without taking account of the costs which would result from a decision to cease employing prisoners and instead to employ civilian staff or external contractors at market rates of pay.
+I would dismiss this appeal.
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+The Parliamentary Commissioner Act 1967 created for the first time in the United Kingdom an officer, the Parliamentary Commissioner for Administration, charged with investigating complaints of maladministration against government departments and a limited number of other public authorities exercising the functions of the Crown or controlled or funded by the Crown.
+Since then, ombudsmen have come to fulfil an increasingly important role in mediating between the state and the public service on the one hand and the citizen on the other.
+Commissioners have been established for complaints against the National Health Service since 1973, for complaints against local government since 1974 and for complaints against social housing landlords since 1996.
+There are also separate Commissioners charged with examining complaints against public bodies or the providers of public services in Scotland, Wales and Northern Ireland.
+There are currently 19 statutory officers charged with the handling of complaints against government departments, local government, the National Health Service and other public authorities or undertakers.
+They are generally known as ombudsmen, after the officer of that title first established in Sweden in 1809.
+In some cases, the same person performs the functions of more than one ombudsman, but each role has its own statutory basis.
+The various enactments have a strong family resemblance.
+But some of them have distinctive features which mean that considerable caution is required before principles derived from one legislative scheme can be read across to another.
+In 1969, two ombudsmen were established for Northern Ireland.
+The Parliamentary Commissioner Act (Northern Ireland) 1969 established a Northern Ireland Parliamentary Commissioner for Administration (later known as the Assembly Ombudsman for Northern Ireland).
+His role and powers were closely modelled on those of the Commissioner established by the United Kingdom Act of 1967.
+The Commissioner for Complaints Act (Northern Ireland) 1969 established a Northern Ireland Commissioner for Complaints.
+I shall call him the Complaints Commissioner.
+He is charged with reporting on complaints against bodies which were not within the jurisdiction of the Northern Ireland Parliamentary Commissioner, notably local authorities, the Northern Ireland Health Board and various public statutory undertakers.
+Since 1972, the same person has held both offices.
+But until recently (see below) his two roles have had distinct legislative foundations.
+It is therefore necessary to have regard to the particular capacity in which an ombudsman is acting and the particular legislation governing that function in order to determine what his powers are.
+The current legislation comprises two Orders in Council made on the same day in 1996, which repealed and replaced the corresponding Acts of 1969.
+They are the Ombudsman (Northern Ireland) Order 1996 (SI 1996/1298 (NI 8)), governing the work of the Assembly Ombudsman, and the Commissioner for Complaints (Northern Ireland) Order 1996 (SI 1996/1297 (NI 7)), governing that of the Complaints Commissioner.
+This appeal is about the powers of the Complaints Commissioner under the latter order, which I shall call the 1996 Order.
+In particular it is about his powers in relation to general medical practitioners working in the National Health Service.
+In Northern Ireland, as in other parts of the United Kingdom, the National Health Service is one of the main sources of complaints.
+The original jurisdiction of the Complaints Commissioner extended to the various boards and committees responsible for the administration of the National Health Service in Northern Ireland.
+But it was confined to maladministration and did not extend to any action in the discharge of a professional duty by a medical or dental practitioner, pharmacist, nurse, midwife or member of a profession supplementary to medicine in the course of diagnosis, treatment or care of a particular patient: see the
+Commissioner for Complaints Act (Northern Ireland) 1969, Schedule 2, paragraph
+That jurisdiction was preserved in the 1996 Order.
+But the position was significantly altered by an amendment of 1997, which followed a similar amendment to the United Kingdom legislation.
+Its effect was to extend the Complaints Commissioners jurisdiction to the merits of a decision to the extent that it was taken in consequence of the exercise of clinical judgment: see article 8(7) of the 1996 Order as amended. 4.
+The main questions at issue in this appeal are whether, and if so in what circumstances, the Complaints Commissioner has power to recommend the payment of a money sum to a complainant; and whether in the event that that sum is not paid he has power to make a special report drawing the attention of the legislature to that fact.
+The Northern Ireland Court of Appeal decided that the answer in each case was no.
+These questions will shortly become moot.
+The Public Services Ombudsman Act (Northern Ireland) 2016 abolishes the offices of both the Assembly Ombudsman for Northern Ireland and the Complaints Commissioner with effect from 1 April 2016, and combines their functions in a new officer, the Northern Ireland Public Services Ombudsman.
+The jurisdiction and powers of the new office are in some respects greater than those of either of its predecessors, and his mode of operation different.
+But the new Act has no bearing on the present appeal.
+The transitional provisions provide for current matters to be transferred to the Public Services Ombudsman, but to be dealt with by him in accordance with the 1996 legislation.
+We have been told that there are some 53 reports completed since the decision of the Court of Appeal which have been held back pending the determination of this appeal, and that in four further cases payment of a money sum has been recommended but the recommendation has not been followed.
+The facts
+The respondent is a general medical practitioner in sole practice in Northern Ireland.
+The National Health Service operates in Northern Ireland through a Health and Social Care Board.
+The respondent provides general medical services under contract with the board for his area under Part VI of the Health and Social Services (Northern Ireland) Order 1972 (SI 1972/1265 (NI 14)).
+This means that complaints against him are liable to be investigated by the Commissioner under article 8 of the 1996 Order.
+I shall deal below with the scope of that article.
+The complainant is the widow of one of his patients, who has been referred to in this litigation as R. R died on 6 January 2009 of a myocardial infarction.
+The complaint concerns the care and treatment received by him during the last eight months of his life.
+He attended the respondents surgery on 30 May 2008 to ask for a heart screen.
+Although he had no symptoms and was not complaining of chest pains, he was referred to a NHS hospital for a treadmill test.
+The test was carried out in July, but terminated early due to fatigue.
+The test recorded negative for ischaemic heart disease at the level of exercise attained at the time it was terminated.
+A report to this effect was sent to the respondent, whose staff recorded it on the practice computer system, but no action was taken.
+On 10 December 2008, R attended the surgery again, this time complaining of chest pains.
+He was seen by a locum doctor, who noted typical angina pain but normal treadmill earlier in the year, but again, no action was taken.
+R returned to the surgery on 15 December 2008 complaining of further chest pains.
+He saw the respondent, who referred him to the Rapid Access Chest Pain Clinic at the same hospital.
+The clinic, however, declined to give him an appointment, because the earlier treadmill test had been negative.
+They suggested in a report dated 20 December that if any further medical review was required R should be referred to the outpatients department.
+Their report arrived at the practice on Christmas Eve, and was input into the practice computer system.
+The respondent was on holiday.
+The locum was on duty, but she did not review the report because it was not marked urgent.
+R returned to the surgery on 6 January 2009 to find out what had happened about the referral to the clinic.
+The locum told him that an appointment had been refused, but referred him to the clinic as an outpatient for a treadmill test, as suggested in the report.
+He died later that day, before anything had been done to follow up this suggestion.
+Mrs R complained to the Complaints Commissioner.
+She gave his officials to understand that she was not looking for compensation but wished to understand what had happened.
+The Commissioner agreed to undertake the investigation, and in due course reported.
+He concluded that the practice had failed to provide a reasonable level of care and treatment.
+In particular, he found that it was guilty of maladministration in (i) failing to take action after the treadmill test, (ii) failing to follow up promptly the clinics failure to give R an appointment, and (iii) failing to refer R to the emergency services on 6 January 2009.
+He also found that the respondent had acted inappropriately after Rs death in (iv) prematurely assigning responsibility to the hospital, (v) discouraging the family from making a complaint, and (vi) having promised to contact the hospital about Mrs Rs complaint against them, failing to get back to Mrs R after doing so.
+The Complaints Commissioner made no finding that these failures caused the death of R, and the facts that he has found do not suggest that they did.
+He specifically found that the failure to take appropriate action on 6 January 2009 made no difference to the outcome.
+But at para 70 of his report he concluded: I have identified learning points earlier in this report for the Practice and I recommend that [the GP] acts upon them.
+I also recommend that the Practice should pay [the complainant] 10,000 in respect of the clearly identified failings in the care provided to [the patient] and the events which consequently followed.
+The respondent has apologised to Mrs R and, as the Complaints Commissioners report observes, has put in hand changes to his practices procedures designed to avoid a recurrence of the administrative failings.
+But, having taken legal advice, he has declined to pay the money sum recommended, on the ground that he was not legally bound to do so.
+The Complaints Commissioner has responded by saying that in that case he was minded to issue a special report to the Northern Ireland legislature reporting the respondents failure to comply with the recommendation.
+The Commissioner for Complaints (Northern Ireland) Order 1996
+The Complaints Commissioner is empowered to investigate and report on complaints made to him by those claiming to have suffered injustice as a result of the conduct of certain bodies and persons.
+The bodies and persons in question, and the matters which he is empowered to investigate are identified by articles 7 to 10 of the Order.
+The scheme of these provisions is that article 7 provides for the investigation of complaints about maladministration by any of the bodies listed in Schedule 2.
+These are all non departmental public bodies exercising functions conferred on them by statute.
+Schedule 2 may be amended by Order, but article 7(3) provides that such an Order may extend its operation only to bodies which either exercise statutory functions or have their expenses substantially defrayed from public funds.
+The investigation of Mrs Rs complaint against the respondent was conducted under article 8, which deals with the investigation of complaints against individuals who have undertaken to provide general medical, dental, ophthalmic or pharmaceutical services under Part VI of the Health and Social Services (Northern Ireland) Order 1972 or in certain circumstances those performing personal medical or dental services.
+Unlike the bodies whose conduct may be investigated under article 7, the persons liable to be investigated under article 8 are not public bodies.
+They are individuals like the respondent providing professional services under contracts or other consensual arrangements with the National Health Service.
+The distinction is significant, as I shall explain. article 8(a) provides for the investigation of complaints against independent health and social care providers.
+These are not public bodies either.
+Like the individuals covered by article 8, they provide services under arrangements with the National Health Service.
+Articles 9 and 10 restrict in certain respects the undertaking of investigations authorised under all three preceding provisions.
+Article 9 is mainly concerned with the potential overlap between the Complaints Commissioners investigations and other remedies available to the complainant.
+Article 9(3) and (4) provides: 9.
+Matters not subject to investigation (3) Subject to paragraph (4) and to [section 78 of the Northern Ireland Act 1998], the Commissioner shall not conduct an investigation under this Order in respect of (a) any action in respect of which the person aggrieved has or had a right of appeal, complaint, reference or review to or before a tribunal constituted under any statutory provision or otherwise; any action in respect of which the person (b) aggrieved has or had a remedy by way of proceedings in a court of law. (4) The Commissioner may conduct an investigation
+Article 11 provides, in relation to all three categories of investigation: (a) notwithstanding that the person aggrieved has or had such a right or remedy as is mentioned in paragraph (3), if the Commissioner is satisfied that in the particular circumstances it is not reasonable to expect him to resort to or have resorted to it; or (b) notwithstanding that the person aggrieved had exercised such a right as is mentioned in paragraph (3)(a), if he complains that the injustice sustained by him remains unremedied thereby and the Commissioner is satisfied that there are reasonable grounds for that complaint. 11.
+Purposes of investigation The purposes of the investigation by the Commissioner shall be to ascertain if the matters alleged in the (a) complaint (i) may properly warrant investigation by him under this Order; (ii) are, in substance, true; and to effect a settlement of the matter (b) where it appears to the Commissioner to be desirable (i) complained of; or if that is not possible, to state what action (ii) should in his opinion be taken by the body concerned, the general health care provider concerned or the independent provider concerned (as the case may be) to effect a fair settlement of that matter or by that body or provider or by the person aggrieved to remove, or have removed, the cause of the complaint.
+Articles 15 19 cover (among other things) enforcement.
+Three modes of enforcement are provided for.
+First, under article 15, the Complaints Commissioner is required to send a copy of the report of his investigation to specified people, including the complainant and the body or person investigated.
+Where the investigation is carried out under article 8 into the conduct of an individual health provider, the report must be sent to the National Health Service entity with whom he or she has contracted or arranged to provide the service in question.
+That body may take whatever disciplinary or other action is open to it under its arrangements with the practitioner.
+Secondly, article 16 provides: 16.
+Application for compensation by person aggrieved (1) Where on an investigation pursuant to a complaint under article 7 the Commissioner reports that a person aggrieved has sustained injustice in consequence of maladministration, the county court may, on an application by that person, by order award that person damages to be paid by the body concerned. (3) Damages awarded under this article shall be such as the county court may think just in all the circumstances to compensate the person aggrieved for any loss or injury which he may have suffered on account of expenses reasonably incurred by him in (a) connection with the subject matter of the maladministration on which his complaint was founded; and (b) his loss of opportunity of acquiring the benefit which he might reasonably be expected to have had but for such maladministration. (4) In calculating the amount of damages to be awarded by virtue of paragraph (3)(b) the county court shall apply the same rule concerning the duty of a person to mitigate his loss as applies in relation to damages recoverable at common law.
+The third mode of enforcement is provided for by article 17.
+The substance of this provision is that where the Complaints Commissioner conducts an investigation under article 7 and reports persistent or systemic maladministration, the Attorney General may, at his request, apply to the High Court for an injunction.
+In court proceedings under article 16 or 17, article 18(1)(a) provides that a recommendation of the Commissioner and any report of the Commissioner relating to the complaint in connection with which the recommendation is made shall, unless the contrary is proved, be accepted as evidence of the facts stated therein.
+It is, finally, necessary to refer to articles 19 and 21.
+They provide as follows: 19.
+Reports to the Assembly The Commissioner shall annually lay before the Assembly a general report on the performance of his functions under this Order and may from time to time lay such other reports before the Assembly as he thinks fit. 21.
+Disclosure of information by Commissioner Information obtained by the Commissioner or his (1) officers in the course of, or for the purposes of, an investigation under this Order shall not be disclosed except as permitted by paragraph 1(B) or for the purposes of the investigation and any report to be made (a) thereon under this Order; (b) any proceedings for an offence under the Official Secrets Acts 1911 to 1989 alleged to have been committed in respect of information obtained by the Commissioner or any of his officers by virtue of this Order; (c) any proceedings for an offence of perjury alleged to have been committed in the course of an investigation under this Order; (d) an inquiry with a view to the taking of proceedings of the kind mentioned in sub paragraphs (b) and (c); or (e) any proceedings under article 14, 16 or 17.
+Power to recommend monetary redress: Article 9(3) and (4)
+On the particular facts of this case, there is a short answer to the Complaints Commissioners appeal.
+Under article 9(3) of the 1996 Order, he may not carry out an investigation into any actions in respect of which the complainant has a remedy by way of proceedings in a court of law.
+This is, subject to article 9(4), a condition precedent to his jurisdiction.
+It follows, as a Divisional Court in England held about a similar provision limitation on the powers of the Commissioner for Local Administration under the Local Government Act 1974, that the operation of article 9(3) cannot depend on whether the complainants allegations are well founded.
+For the purposes of article 9(3) she has a remedy by way of proceedings in a court of law if, on the assumption that her complaint was justified, she would have a remedy in court: see R v Commissioner for Local Administration, Ex p Croydon London Borough Council [1989] 1 All ER 1033, 1044.
+By way of exception to the restriction in article 9(3), article 9(4) provides that the Complaints Commissioner may nevertheless conduct the investigation if he is satisfied that in the particular circumstances it is not reasonable to expect the complainant to resort to law.
+This is primarily directed to cases where litigation would not be worth the cost and trouble involved.
+But it may also apply in other cases, for example where the complainant is looking for explanations rather than money.
+According to the evidence of the Commissioners staff, this was the position of Mrs R.
+The Commissioner accepted that the complaint should be investigated because Mrs R said that she was not seeking monetary redress but only wanted to know what had gone wrong.
+I agree that that was a proper basis on which to undertake the investigation.
+The Commissioner could properly conclude that it would not have been reasonable to expect Mrs R to commence proceedings in court if she was not seeking financial relief.
+But if the only basis on which the Commissioner felt able to undertake the investigation at all was that Mrs R did not want money, it could not be proper for him to recommend a payment of money and threaten to report on the respondents failure to pay it.
+Power to recommend monetary redress: in general
+There is, however, a more fundamental question, which is directly raised by the Court of Appeals judgment, namely whether the Complaints Commissioner has power to recommend monetary redress at all.
+The Court of Appeal held that he did not.
+If that is correct, it applies irrespective of the basis on which the Commissioner satisfied the conditions in article 9(4).
+The starting point is the legal and constitutional status of the Complaints Commissioners reports.
+The practice of the United Kingdom government is to comply with the recommendations of statutory ombudsmen unless the department in question can put forward good reasons for not doing so: see Handling of Parliamentary Ombudsman Cases (Cabinet Office, 1996), para 61, and Managing Public Money (HM Treasury, 2013), para 4.12.2.
+This corresponds to what has been held to be the position of the United Kingdom government in relation to reports of the Parliamentary Commissioner for Administration.
+In R (Bradley) v Secretary of State for Work and Pensions [2008] EWCA Civ 36; [2009] QB 114, the Court of Appeal in England accepted (para 63) that where a minister was responsible to Parliament for the public body in question, he was not bound to accept the Commissioners findings or recommendations, because Parliament cannot have intended to preclude the minister from explaining his rejection of them to Parliament.
+Nevertheless, it was held (para 72) that he could not rationally reject them without cogent reasons.
+The decision in Bradley raises delicate questions about the relationship between judicial and Parliamentary scrutiny of a ministers rejection of the recommendations of the Parliamentary Commissioner for Administration.
+But they are not questions which arise on this appeal, because on any view the principle stated in Bradley cannot be transposed without modification to a case where the Complaints Commissioner recommends financial redress against a medical practitioner.
+In the first place, as I shall explain below, the Complaints Commissioner has a very different relationship with the legislature.
+Secondly, even in a case where his recommendation is directed to a public body, article 16, which has no equivalent in the United Kingdom legislation, provides for claims to compensation to be determined in adversarial litigation before a court.
+The effect is to create a statutory cause of action for maladministration which would not necessarily exist otherwise.
+The function of the court is to decide the issue on the merits, and not simply by way of judicial review of the Commissioners report.
+The Commissioners recommendations and findings are no more than rebuttable evidence of the facts.
+It necessarily follows that the public body in question is entitled to dispute them on any ground which may find favour with a court.
+Third, and critically, the recommendation which is challenged in the present case was not directed to a public body.
+A general practitioner working in the National Health Service is not a public body, but merely provides services to a public body under a contract or some other consensual arrangement.
+The Complaints Commissioner is not a court.
+He is an official, albeit an independent one, performing an investigatory and advisory function under statute.
+Except in relation to compelling the attendance of witnesses and the production of documents (see article 13 of the 1996 Order), he has no powers of compulsion.
+Subject to the terms of the practitioners agreement with the relevant NHS body and to any power of enforcement conferred by the relevant legislation, the Commissioners recommendations are not binding on any one as a matter of private law.
+At best, they are legally enforceable only by virtue of the public law duty of a public body not irrationally to reject them.
+But that duty is irrelevant to a person in the position of the respondent, who has no relevant public law duties.
+The scheme of the 1996 Order, like that of the 1969 legislation which it replaced, is based upon a similar distinction between public and private bodies.
+The right of a complainant to claim damages in court under article 16 is limited to cases of maladministration found in the course of an investigation conducted under article 7, ie by one of the public bodies to which that article applies.
+The same limitation applies to the right to request the Attorney General to apply for an injunction under article 17.
+Similarly, by article 21, the Complaints Commissioner is permitted to disclose information obtained in the course of or for the purpose of an investigation only for limited purposes.
+They are conducting the investigation and preparing his report on it, defending himself and his officers against a charge of breach of the Official Secrets Acts, and taking proceedings for perjury or obstruction in the course of an investigation.
+The information may also be made available for the purpose of enforcement proceedings under articles 16 and 17, both of which as I have pointed out are limited to investigations conducted under article 7.
+Leaving aside the possibility of a special report, to which I shall return, there is no power to use the information for the purpose of enforcement measures of any other kind.
+Article 11 of the 1996 Order empowers the Complaints Commissioner to try to effect a fair settlement of the complaint.
+If that is not possible, he may state what action should in his opinion be taken by the object of the complaint in order to effect such a settlement.
+In a case where the complainant has suffered loss in consequence of the defaults found by the Commissioner, a fair settlement is likely if not certain to require that that loss should be made good.
+It follows that if the Commissioner chooses to operate the settlement procedure, and fails to achieve a settlement, he the respondent has accepted must be entitled to recommend in his report a monetary payment sufficient to bring about a fair settlement.
+That power is available irrespective of the statutory basis of the investigation, and therefore whether the party investigated is a public or a private body.
+But the power is not relevant here, because the Complaints Commissioner never sought to operate the settlement procedure.
+If he had done, a settlement might well have been achieved without difficulty, since Mrs R had not sought monetary redress and the Commissioners other recommendations.
+Article 18(1)(a) of the 1996 Order provides that the Commissioners recommendations as well as his findings may be relevant to an action for damages against a public body under article 16.
+It is arguable that the Complaints Commissioner may also have power to make recommendations that would be relevant in such proceedings.
+But since the respondent is not a public body and not amenable to proceedings under article 16, that question does not arise on this appeal and I should prefer to leave it open.
+What is clear is that investigations under article 8 into the conduct of persons who are not public bodies are an entirely different matter.
+It is one thing for a public officer performing an investigatory and advisory role to recommend a payment out of public funds.
+It is another thing altogether for him to recommend the payment by a private individual out of his own pocket of a sum which that individual has no public or private law duty to pay.
+Articles 16 and 17, as I have pointed out, have been deliberately limited to investigations under article 7 into the conduct of one of the public bodies identified in Schedule 2.
+There is no statutory mode of enforcing a monetary payment against a private contractor to which the Complaints Commissioners recommendation could be relevant.
+More generally, a private individual has no means open to him of challenging the Commissioners findings before a court, such as a public body enjoys under article 16, except by way of judicial review, which offers only limited scope for a review of the merits.
+I can think of no rational reason why the draftsman of the 1996 Order should have intended that private individuals with no relevant duty of compliance should have a more limited right to challenge the Commissioners report than a public body.
+On the contrary, the assumption must have been that the Commissioner would not make recommendations against private individuals of a kind which could have no legal effect directly or indirectly, either under the Order or under the general law.
+This is, in substance, what the majority of the Court of Appeal decided.
+In my opinion, as applied to investigations under article 8, their conclusion was correct.
+Power to make a special report
+The Complaints Commissioners main response to this is that his recommendations do not depend for their efficacy on their legal enforceability but on the power of publicity.
+By publicising a respondents failure or refusal to comply with a recommendation, he can bring pressure to bear on him to comply notwithstanding the lack of any legal obligation to do so.
+This is what the Commissioner hopes to achieve by issuing a special report.
+Mr McGleenan QC, who appeared for the Commissioner before us, drew our attention to the observations of Wade and Forsyth, Administrative Law, 11th ed (2014), p 69, about the Parliamentary Commissioner Act 1967: An ombudsman requires no legal powers except powers of inquiry.
+In particular, he is in no sense a court of appeal and he cannot alter or reverse any government decision.
+His effectiveness derives entirely from his power to focus public and parliamentary attention upon citizens grievances.
+But publicity based on impartial inquiry is a powerful lever.
+Where a complaint is found to be justified an ombudsman can often persuade a government department to modify a decision or pay compensation in cases where the complainant unaided would get no satisfaction.
+For the department knows that a public report will be made and that it will be unable to conceal the facts from Parliament and the press.
+I have no difficulty with this proposition as applied to a public body and to the scheme of the United Kingdom Act.
+The United Kingdom Parliamentary Commissioner for Administration is an officer of the legislature.
+The White Paper which preceded the passing of the 1967 Act (The Parliamentary Commissioner for Administration, Cmnd 1965/2767) observes at para 4, that his office was conceived as supporting the traditional constitutional function of Parliament of receiving the grievances of citizens and holding ministers individually and collectively accountable for their amendment.
+The Parliamentary Commissioner in the United Kingdom is empowered to investigate complaints referred to him by a Member of Parliament against government departments and other public bodies identified in Schedule 2: see sections 4 and 5 of the 1967 Act.
+He has no power to investigate complaints against private individuals providing services to government departments or public bodies.
+The Parliamentary Commissioners practice is, in appropriate cases, to recommend that the department or public body provides financial redress, generally on a compensatory basis.
+If the department decides not to comply, he may make a special report under section 10(3), which provides as follows: (3) If, after conducting an investigation under section 5(1) of this Act, it appears to the Commissioner that injustice has been caused to the person aggrieved in consequence of maladministration and that the injustice has not been, or will not be, remedied, he may, if he thinks fit, lay before each House of Parliament a special report upon the case.
+In all of these respects, the position of the Assembly Ombudsman for Northern Ireland under the Ombudsman (Northern Ireland) Order 1996 is the same.
+Section 10(3) of the 1967 Act of the United Kingdom is reproduced by section 10(3) of the Parliamentary Commissioner Act (Northern Ireland) 1969, and then by article 17(2) of the Assembly Ombudsman (Northern Ireland) Order 1996.
+But no corresponding power was conferred on the Complaints Commissioner either by the legislation of 1969 or by that of 1996.
+The absence of a power in the Complaints Commissioner to make a special report of the kind which is expressly conferred on the Assembly Ombudsman was not an oversight.
+It reflects a significant difference in their constitutional status.
+The Assembly Ombudsman, like the United Kingdoms Parliamentary Commission for Administration, is an officer of the legislature.
+Under the Ombudsman (Northern Ireland) Order 1996, he may investigate only such complaints as are made by a member of the public to a member of the Assembly and referred by the latter to him: article 9(2).
+He reports to the member in question or another appropriate member, as well as to the public body under investigation: article 16.
+In keeping with this scheme, the sole mode of enforcing his recommendations provided for by the legislation is a special report to the legislature under article 17(2).
+These had also been features of the Parliamentary Commissioner Act (Northern Ireland) 1969.
+Their effect is that the Assembly Ombudsmans recommendations are enforceable politically, but they are not enforceable legally save arguably by way of judicial review.
+This reflects the fact that the bodies subject to investigation by the Assembly Ombudsman are government departments and public bodies for whom the relevant minister is responsible to the legislature.
+The position of the Complaints Commissioner is different.
+He is a public officer but he is not an officer of the legislature in the same sense as the Assembly Ombudsman.
+Under the 1996 Order, he receives complaints directly from the public: articles 7(7) and 8(5).
+He reports to the complainant and to the bodies and individuals whose conduct is at issue: article 15.
+There is no power to make a special report to the legislature or to any one else on non compliance with his recommendations.
+Instead, his recommendations and findings are legally enforceable by the court by the procedures set out in articles 16 and 17, but only as against public bodies investigated under article 7.
+In 1969 and 1996, it was evidently not considered appropriate to confer enforcement powers against private individuals with no relevant duties either in public or private law, whether by way of resort to the courts or by denouncing the recalcitrant party to the legislature.
+I do not accept the Complaints Commissioners submission that this deliberate scheme can be circumvented by resort to article 19 of the 1996 Order, which empowers him to lay before the Assembly an annual report on the performance of his functions and such other reports as he thinks fit.
+Reports of his investigations are governed by article 15.
+The context and the scheme of the legislation, both in 1969 and in 1996, show that article 19 is concerned with general reports on his work, and not with reports on individual cases.
+The assumption of the Complaints Commissioner that he can make a special report to the legislature on a failure to comply with his recommendations confuses his two roles, which are legislatively distinct.
+The position of the new Public Services Ombudsman under the 2016 Act will be different, because his power to issue a special report is wider: see section 46(2).
+But that is not the legislation upon which this appeal turns.
+The Commissioners recommendation in this case
+I have quoted para 70 of the Commissioners report, in which he recommends a payment by the respondent of 10,000.
+The respondent challenges the rationality of that recommendation.
+On the view that I have reached about the limits of the Commissioners powers, this question does not arise.
+However, I would not like to part with this case without commenting on the fact that the Commissioner thought it appropriate to make a recommendation in these terms, even on the footing that he was entitled to recommend monetary redress at all.
+The Commissioners recommendations, in those cases where he is entitled to make them, are discretionary and he has more latitude in arriving at a figure than a court would have.
+But a monetary recommendation, like any other, must be rational, and it must be explained.
+The only explanation proffered is that the 10,000 should be paid in respect of the clearly identified failings in the care provided to [the patient] and the events which consequently followed.
+The report does not explain why these failings warrant a payment of 10,000 or how that figure has been arrived at.
+It does not say whether Mr or Mrs R suffered any loss by the failings for which the 10,000 should be treated as compensation.
+Some of the failings, notably the failure to take more urgent action on 6 January 2009 are found to have made no difference and others, such as the events which followed Rs death could not in the nature of things have done so.
+It is possible that the recommendation was intended as a solatium for injured feelings, but the report does not say so, and in the absence of explanation 10,000 seems to be an excessive amount to recommend on that basis.
+On the face of it, the figure has simply been plucked out of the air.
+If I had concluded that the Complaints Commissioner had power to recommend a payment by the respondent, I would have regarded this particular recommendation as lacking any rational basis.
+Conclusion
+For these reasons I would dismiss the appeal.
diff --git a/UK-Abs/test-data/judgement/uksc-2014-0110.txt b/UK-Abs/test-data/judgement/uksc-2014-0110.txt
new file mode 100644
index 0000000000000000000000000000000000000000..98d528294149788e5f50e7530d63c66ffed07424
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+++ b/UK-Abs/test-data/judgement/uksc-2014-0110.txt
@@ -0,0 +1,190 @@
+This appeal concerns the interpretation of sections 103 and 106 of the Income and Corporation Taxes Act 1988 (ICTA) which imposed a charge to corporation tax on post cessation receipts from a trade, profession or vocation.
+The provisions were later rewritten in the Corporation Tax Act 2009.
+The receipts in question came about as follows.
+Over many years companies within the Littlewoods corporate group paid the Commissioners for Her Majestys Revenue and Customs (HMRC) substantial sums as value added tax (VAT) on an incorrect understanding of the law.
+HMRC later repaid the sums, which had been incorrectly paid, to a nominated member of the corporate group together with interest on those sums as required by sections 78 and 80 of the Value Added Tax Act 1994 (VATA 1994).
+At earlier stages in the proceedings, the dispute concerned HMRCs claim to tax several companies within the group on both repayments and also interest on those repayments, which in aggregate amounted to over 630m.
+Now the only question is whether a repayment of overpaid VAT of 124,963,600 is liable to corporation tax in the hands of the appellant, Shop Direct Group (SDG).
+SDG challenges the judgment of the Court of Appeal, upholding the determinations of the First tier Tribunal and the Upper Tribunal, that it is liable to corporation tax on the receipt of that sum.
+The prior law
+In order to understand the purpose of sections 103 and 106 of ICTA it is necessary to look at the prior law.
+In short, until Parliament intervened by enacting sections 32 34 of the Finance Act 1960, sums which a taxpayer received as income from his trade, profession or vocation after he had ceased to trade or carry on his profession or vocation escaped taxation.
+Case law established that the sums did not change their character after the discontinuance; their source was unchanged.
+The courts treated those sums as the fruit of the trade or profession or as its fruit or aftermath.
+The sums were held not to be taxable under Cases I or II of Schedule D because the trade, profession or vocation was not being carried on in the tax year in which the sums were received.
+As a result, an astute taxpayer might choose to retire so that he received such income post cessation and thus tax free.
+Similarly, as the case law shows, if the taxpayer were unfortunate and died before he had received income arising from his trade, profession or vocation, the receipts were not taxed as income in the hands of his personal representatives, heirs or assignees.
+In 1930 Rowlatt J set out the basic principle in Bennett v Ogston (1930) 15 TC 374, in a passage which the House of Lords approved in the later cases to which I refer below.
+He said (at p 378): When a trader or a follower of a profession or vocation dies or goes out of business and there remain to be collected sums owing for goods supplied during the existence of the business or for services rendered by the professional man during the course of his life or his business, there is no question of assessing those receipts to income tax; they are the receipts of the business while it lasted, they are arrears of that business, they represent money which was earned during the life of the business and are taken to be covered by the assessment made during the life of the business, whether that assessment was made on the basis of bookings or on the basis of receipts.
+Thus in Brown v National Provident Institution [1921] AC 222 the tax paying companies escaped tax on profits derived from transactions conducted in the preceding year because they did not carry on the trade in the tax year in which they received the profit generating sums.
+In Stainers Executors v Purchase [1952] AC 280, 23 TC 367, after the actor and film producer, Leslie Howard had been killed by enemy action in 1943, his executors received income from films, which he had produced or in which he had acted.
+The Crown argued that the sums had assumed a different character after his death and could no longer be treated as profits and gains of his profession.
+The House of Lords rejected this argument and held that the source of the payments was Mr Howards professional activity.
+Lord Simonds stated (at p 289) that they retained the essential quality of being the fruit of his professional activity and Lord Asquith of Bishopstone (at p 290) described the payments as the fruit or aftermath of the professional activities of Mr Leslie Howard during his lifetime.
+The House of Lords confirmed this approach in relation to royalties received after the death of an author in Carson v Cheyneys Executor [1959] AC 412.
+Tax legislation thus left the door wide open to tax avoidance so long as the taxpayer could, by choosing when to discontinue a business, escape tax on post cessation receipts.
+The statutory provisions
+Parliament sought to close that door by enacting the predecessors of the provisions which are the subject of this appeal, initially in sections 32 34 of the Finance Act 1960, and imposed a charge to tax on post cessation receipts primarily under Case VI of Schedule D. Later, sections 103 to 110 of ICTA became the relevant provisions for both income tax and corporation tax.
+Since the statutory provisions relating to income tax were separated from those relating to corporation tax in 2005, the ICTA provisions were amended to relate only to corporation tax.
+Section 103 of ICTA, as it was worded in 2007 2008 at the time of the relevant transaction, stated so far as relevant: (1) Where any trade, profession or vocation carried on wholly or partly in the United Kingdom the profits of which are chargeable to tax has been permanently discontinued, corporation tax shall be charged under Case VI of Schedule D in respect of any sums to which this section applies which are received after the discontinuance. (2) Subject to subsection (3) below, this section applies to the following sums arising from the carrying on of the trade, profession or vocation during any period before the discontinuance (not being sums otherwise chargeable to tax) (a) where the profits for that period were computed by reference to earnings, all such sums in so far as their value was not brought into account in computing the profits for any period before the discontinuance, and (b) where the profits were computed on a conventional basis (that is to say, were computed otherwise than by reference to earnings) any sums which if those profits had been computed by reference to earnings, would not have been brought into the computation for any period before the discontinuance because the date on which they became due, or the date on which the amount due in respect thereof was ascertained, fell after the discontinuance. (emphasis added) In this case sub section (2)(a) is relevant as the trading companies computed their profits by reference to earnings.
+The only other provision which it is necessary to set out is section 106 of ICTA (as amended by section 882 of, and paragraph 85 of Schedule 1 to, the Income Tax (Trading and Other Income) Act 2005) which governs the charge to tax in some, but not all, of the circumstances in which the rights to receive payments which are post cessation receipts are transferred.
+Section 106(1) addresses the circumstance of a transfer for value and provides: Subject to subsection (2) below, in the case of a transfer for value of the right to receive any sum to which section 103, 104(1) or 104(4) applies, any corporation tax chargeable by virtue of either of those sections shall be charged in respect of the amount or value of the consideration (or, in the case of a transfer otherwise than at arms length, in respect of the value of the right transferred as between parties at arms length), and references in this Chapter to sums received shall be construed accordingly.
+The subsection quantifies the charge to tax on the transferor of the right.
+Thus, for example, if a company, which was entitled to receive royalties from films or books, permanently discontinued its business and assigned the right to receive those royalties to a third party at full market value, the assigning company would be liable to corporation tax under section 103 on its profits calculated by reference to the value it received as consideration for the assignment.
+Subsection (2) of section 106 addresses the circumstance where, under sections 110(2)(a) and 337 of ICTA, there is a deemed discontinuance of a trade caused by a change in the persons carrying on the business.
+It provides: Where a trade, profession or vocation is treated as permanently discontinued by reason of a change in the persons carrying it on, and the right to receive any sum to which section 103 or 104(1) applies is or was transferred at the time of the change to the company carrying on the trade, profession or vocation after the change, corporation tax shall not be charged by virtue of either of those sections, but any sum received by that company by virtue of the transfer shall be treated for corporation tax purposes as a receipt to be brought into the computation of the profits of the trade, profession or vocation in the period in which it is received.
+So, if the transferee, while it is carrying on its trade, receives sums which are post cessation receipts of the former trade, section 103 does not apply to the transferees receipt.
+Instead, the subsection treats those receipts by the successor company as part of its trade, brings them into the computation of its profits in the period in which they are received and subjects them to a charge under Case I of Schedule D.
+The effect of subsection (2) can be seen in relation to income tax on a partnership, before it was re worded to apply only to corporation tax.
+It superseded the decision of the House of Lords in Crompton v Reynolds 33 TC 288, [1952] 1 All ER 888.
+In simplified form the facts of that case were as follows.
+A partnership of cotton brokers as originally constituted had as an asset of their business a debt owed by a customer incurred in the course of their trade.
+A change in the membership of the partnership gave rise to a technical dissolution of the old partnership and the new partnership acquired the assets and liabilities of the old partnership.
+The new partnership subsequently collected the debt and escaped income tax on it because the House of Lords held that the collection of the debt was not part of the new partnerships trading operation and thus was not assessable to tax under Case I of Schedule D. Section 106(2) closed the loophole by treating such collection of a prior partnerships debt as a trading receipt of the new partnership.
+The factual background
+As I have said, the case now concerns only one repayment of 124,963,600 of overpaid VAT which HMRC made in the tax year 2007 2008.
+It was referred to as VAT Repayment 2 or VRP2 in the decision of the First tier Tribunal and the judgments of the Upper Tribunal (Asplin J) and of the Court of Appeal and I will use the same term to describe it.
+The overpayments arose because VAT was wrongly calculated when goods were sold to agents of the supplier with a discount for commission.
+The complex facts are set out in full in the decision of the First tier Tribunal (Judge Roger Berner and Miss Sandi ONeill) [2012] UKFTT 128 (TC)).
+I can therefore present them briefly.
+The relevant supplies were made by companies in the group of companies between 1978 and 1996.
+In presenting the appeal counsel grouped the relevant supplies and the repayments relating to those supplies (which were components of VRP2) as follows.
+The supplies were made by: (i) SDG (then named John Noble Ltd) between 1 January 1986 and 31 December 1987 (VRP2A(i)); (ii) Reality Group Ltd (RGL) between 1 April and 30 September 1996 (VRP2A(ii)); (iii) Kay & Co Ltd (Kay & Co) between 1 January 1978 and 30 September 1996 and Abound Ltd (Abound) between 1 April 1978 and 30 September 1996 (VRP2B); and (iv) GUS plc or RGL between 1 January 1978 and 31 March 1996 (VRP2C).
+The VAT had been paid in relation to those supplies by the representative member of the group of companies under section 43 of VATA 1994, which until 11 February 1992 was GUS Merchandise Corporation Ltd and between then and 6 August 1997 was Kay & Co Ltd. By the time VRP2 was paid in 2007, each of the companies which had made the relevant supplies had permanently discontinued its trade.
+It is not necessary to set out the complex facts of the reorganisations of businesses within the group of companies in any detail.
+The relevant transfers may be summarised as follows: (i) the trade of SDG was transferred to RGL on 1 June 1991; (ii) the trade of GUS plc was transferred to RGL on 1 April 1996 but the transferors right to receive a VAT repayment, which became VRP2C, was retained; (iii) the trades of Kay & Co and Abound were transferred to RGL on 1 April 1997 but the transferors rights to VAT repayments, which became VRP2B, were retained; (iv) the trade of RGL was transferred to SDG on 25 November 2000; and (v) finally, after March UK Ltd (March) had acquired from GUS plc various companies, including SDG, RGL, Kay & Co and Abound, on 27 May 2003, the trade of SDG was transferred to Shop Direct Home Shopping Ltd (SDHSL) on 28 October 2005.
+No documentation vouching the transfers in (i) and (iv) above was available to the First tier Tribunal but the tribunal inferred and found as fact that in each case the whole of the trade was transferred, including the transferors right to VAT repayments.
+On 24 June 2003 GUS plc, which had become the representative member of the VAT group on 20 May in that year, made a claim for repayment of VAT under section 80 of VATA 1994 from HMRC.
+The claim included the various payments which led to the repayment which has been described as VRP2.
+The person entitled to receive the repayments under section 80 of VATA 1994 was the representative member of the VAT group.
+But the First tier Tribunal held that the benefit of the repayment was accepted as belonging to the appropriate companies acquired by March.
+The tribunal did not have evidence of how the GUS group operated its treasury function but inferred that the trading companies had had to account to the representative member to fund the VAT due on their trading and that the representative member had to account to them for any repayments of VAT.
+Argos Ltd (Argos) became the representative member of the VAT group on 9 October 2006.
+Because, by the time HMRC paid VRP2 in September 2007, Argos had been transferred to another group of companies under Home Retail Group plc (HRG), it was necessary for the interested parties to enter into agreements to determine which entity within the corporate group which was not being sold should receive the repayments from Argos, which was acting as the groups representative member.
+March, GUS plc and HRG agreed that the solicitors, Weil, Gotshal & Manges (WGM), be appointed agents of Argos and this was done.
+WGM were also appointed the agent of SDG to receive VRP2 as part of the administrative arrangements for the receipt of this payment from HMRC.
+Argos gave an irrevocable instruction to HMRC to pay all VAT repayments to WGM.
+To secure its position, HMRC obtained (a) an undertaking from SDG that it would repay VRP2 and the statutory interest thereon in specified circumstances and (b) releases from Kay & Co, RGL and Abound in relation to their entitlement (if any) to receive any repayment when the GUS home shopping business was sold to March in May 2003.
+On Marchs direction, WGM paid an amount equal to VRP2 to a Jersey registered company, L W Corporation Ltd (LWC), which March had made SDGs parent company on 25 October 2006.
+SDG, which had been dormant since October 2005, had become an unlimited company on 30 January 2007 and so did not have to file its accounts in Companies House but only with HMRC.
+This enabled it to avoid publicity regarding the receipt of VRP2 and the interest thereon.
+Amounts equal to the sums paid to LWC were recognised as an exceptional item in the profit and loss account of SDG and as an inter company receivable due from LWC on SDGs balance sheet.
+SDG thus received VRP2.
+Consistently with this presentation in SDGs accounts, the First tier Tribunal held that SDG received VRP2 as beneficial owner at the time of receipt.
+The tribunal interpreted Marchs agreed arrangements with GUS plc and HRG as an acknowledgement that SDG was entitled to VRP2.
+There was no suggestion in the findings of fact that any other company ever questioned SDGs right to receive VRP2.
+In my view the inference that SDG was beneficially entitled to VRP2 was obvious.
+The proceedings below
+After HMRC amended the corporation tax self assessments of the companies, including SDG, which received the various VAT repayments, the recipient companies appealed those assessments.
+The First tier Tribunal in a decision dated 14 February 2012 dismissed each of the appeals.
+On 19 April 2013 Asplin J sitting as a judge of the Upper Tribunal (Tax and Chancery Chamber) dismissed the appeal.
+SDG alone appealed to the Court of Appeal in respect of its assessment to corporation tax on VRP 2 and the related statutory interest.
+In a judgment dated 11 March 2014, which Briggs LJ wrote and with which Rimer LJ and Sir Stanley Burnton agreed, the Court of Appeal dismissed the appeal: [2014] EWCA Civ 255; [2014] STC 1383.
+SDG applied for permission to appeal to this court and was permitted to appeal in relation to VRP2 only.
+The issues now in dispute
+Mr David Goldberg QC for SDG submitted that the maximum sum (if any) on which SDG should be charged corporation tax was the sum of about 200,000 which related to the supplies that SDG itself had made in 1986 and 1987 and which was VRP2A(i) in para 10 above.
+He advanced three reasons in support of this contention.
+First, he submitted that section 103 of ICTA imposed a tax charge only on the original trader (ie the person from whose pre discontinuation trading the sum arises).
+As SDG did not carry on the trades which produced the bulk of VRP2, it was not liable to corporation tax on VRP2 except, possibly, for VRP2A(i).
+Secondly, if the receipt of a sum equivalent to VRP2 arose from an intra group transfer to SDG without any assignment of rights to it, section 103 did not impose a charge.
+Thirdly and alternatively, if the receipt of that sum were the result of a transfer to SDG of the right to the receipt, section 103 did not impose a charge and, in any event, section 106 precluded any charge to tax on SDG.
+Mr Malcolm Gammie QC for HMRC challenged this analysis on every count.
+He submitted (a) that it was illegitimate to read into section 103 any restriction that confined the charge to the original trader, (b) that section 106(1) applied only to transfers for value (which did not occur in this case) and (c) that section 106(2) did not apply unless the company to whom a trade was transferred received the transferors post cessation profits while it, the transferee, was trading (which also did not occur in this case).
+He pointed out that SDG and the other group companies had led no evidence of the intra company transactions and had been content to rely on an agreed statement of facts.
+It was not open to SDG to seek to undermine the First tier Tribunals findings of fact by inviting the court to make contrary inferences as to the nature of the intra group transactions.
+Analysis
+Section 6 of ICTA provided that corporation tax shall be charged on profits of companies.
+Section 8 of that Act provided that a company shall be chargeable to that tax on all its profits wherever arising, and section 9 provided that the amount of any income shall for purposes of corporation tax be computed in accordance with income tax principles, all questions as to the amounts which are or are not to be charged to tax as a persons income being determined in accordance with income tax law and practice.
+Section 18 of ICTA set out Schedule D which imposed a charge to tax on the annual profits or gains arising or accruing to any person residing in the United Kingdom from any trade, profession or vocation.
+Section 18(3) set out the Cases of Schedule D. Case I charged tax in respect of any trade carried on in the United Kingdom or elsewhere.
+Case VI, which section 103 brings into play, provided for tax in respect of any annual profits or gains not falling under any other Case of Schedule D .
+Finally, section 18(4) of ICTA provided: The provisions of Schedule D and of subsection (2) above are without prejudice to any other provision of the Tax Acts directing tax to be charged under Schedule D or under one or other of the Cases set out in subsection (3) above, and tax directed to be so charged shall be charged accordingly.
+Section 103 was one such provision.
+Against this background the first question is whether section 103, which I have set out in para 6 above, contains an implicit restriction so that the charge to tax on post cessation receipts falls only on the former trader, whose trade was the source of the income, as Mr Goldberg submitted.
+In my view the answer to that question is no, for the following three principal reasons.
+First, there is nothing in the words of section 103(1) or (2) which necessitates such implication.
+The charge to tax is clear: where a trade has been permanently discontinued, corporation tax shall be charged under Case VI on sums arising from the carrying on of the trade during any period before the discontinuance.
+Section 103(1) required only that the sums are received after the discontinuance.
+The section specified the source of the sums which fell within the charge but imposed no further restriction on the charge.
+In particular, it imposed no limit on who was the recipient of the sums and thus liable to the charge.
+Secondly, the mischief which section 103 addressed is clear.
+Its predecessor, section 32(2) of the Finance Act 1960, contained the same phrase, sums arising from the carrying on of the trade .
+The phrase referred in my view to the sums which the prior case law called the fruit of the trade.
+Section 32 of the 1960 Act addressed the circumstance, which I have discussed in paras 3 and 4 above, of sums from an otherwise taxable source escaping tax as a result of the permanent discontinuance of a trade.
+Like Briggs LJ (at para 29 of his judgment) I interpret the provision and its statutory successors as bringing into the Schedule D Case VI charge to tax the fruit of the discontinued trade not only in the hands of the former trader, his personal representatives and heirs but also in the hands of those to whom the rights to the post cessation receipts have been assigned or who are otherwise entitled to receive and keep the sums.
+The mischief was the loophole created by the need for a continuing source in the year of receipt.
+The purpose of section 103 was to make sure that sums which a person received, which arose from a discontinued trade and which were not otherwise taxed, were brought into a charge to tax.
+The statutory innovation was to impose the Case VI charge, absent that continuing source, on the recipient of the sums.
+No sound reason of policy has been suggested for confining the charge to the former trader and his personal representatives.
+Thirdly, neighbouring provisions in ICTA drew a distinction between the person chargeable to tax and the person who had previously carried on the trade, giving rise to the inference that the former person was not confined to the latter.
+Thus section 105, which provided for allowable deductions in the calculation of the section 103 charge, referred in subsection (1) in its pre 2005 form to computing the tax charge under section 103 in respect of sums received by any person and in its later form to sums received by any company.
+It listed as the allowable deductions both losses and expenses which the former trader (the person by whom [the trade] was carried on) would have deducted if the trade had not been discontinued and also capital allowances to which the former trader (the person who carried on the trade) was entitled before the discontinuance.
+Had Parliament intended that the section 103 charge should fall only on the former trader, there would have been no need to distinguish between any person on the one hand and the former trader on the other.
+Section 105(4) before 2005 also used the phrase any person in relation to an analogous charge to tax after a change of basis under section 104.
+Section 108 as initially enacted allowed the person by whom the trade had been carried on to elect to carry back the charge so that the sum in question was treated as if it had been received on the date of the discontinuance.
+The way the opening of the section was worded is illuminating.
+It provided the election was available: Where any sum is (a) chargeable to tax by virtue of section 103 or 104, and (b) received in any year of assessment beginning not later than six years after the discontinuance or, as the case may be, change of basis by the person by whom the trade, profession or vocation was carried on before the discontinuance or change, or by his personal representatives In my view again this wording suggests that there is a general charge to tax under section 103 and that the former trader (or his personal representative) is not the only recipient who falls within that charge.
+Parliament had no reason to spell out in (b) that the sum had to be received by the former trader or his representatives if that was inherent in section 103.
+Mr Goldberg also submitted that SDGs receipt of a sum equal to VRP2 did not have a former trade as its source but was the result of an intra group arrangement which was either a transfer for no consideration of that sum or a transfer for no consideration of the rights to VRP2.
+He posed the question, what is the receipt from? and submitted that the correct answer was the transfer of either the sum or the right.
+He referred to Hochstrasser v Mayes [1960] AC 376 and Abbott v Philbin [1961] AC 352 in support of the contention that regard must be had to the most proximate cause of the receipt.
+I do not accept this submission.
+In my view those cases have no bearing.
+They concern the charge to tax under Schedule E on the remuneration of an employee.
+I accept Mr Gammies submission that in the context of Schedule E the relevant statutory question focused on the character of the receipt in the employees hands.
+Rule 1 of the Schedule spoke of a charge on a person having or exercising an office or employment in respect of salaries perquisites or profits whatsoever therefrom (emphasis added).
+The question was whether the employee has received money or moneys worth representing remuneration for his services.
+By contrast, under section 103 the focus was on the original source of the receipt.
+The decisions and arrangements within the VAT group of companies about the specific company which was to receive the repayment did not alter the original source of the receipt.
+The question was whether the sum received arose from the discontinued trade before its discontinuance.
+Section 106(1), which I have set out in para 7 above, also supports a wide interpretation of the scope of the section 103 charge.
+Contrary to Mr Goldbergs submission, I cannot read the subsection as covering all transfers whether for value or for no consideration (other than the transfer of the right to receive the post cessation payments when there is a deemed discontinuance of the trade under subsection (2)).
+The opening words of subsection (1) show that the subsection relates to transfers for value.
+Where the transfer is at arms length, the transferor is charged under section 103 by reference to the stipulated consideration.
+The words in parenthesis substitute market value where the transfer is not at arms length.
+It is true that it may appear anomalous that the subsection governs a transfer for a nominal value, say 50 pence, in a transaction otherwise than at arms length but not a transfer for no consideration.
+But that is what the section says.
+Further, the anomaly is more apparent than real if, as I consider, section 103 imposes a charge on the gratuitous transferee.
+Thus, for example, section 103 when it extended to the individual taxpayer would have applied to an author who on his retirement assigned for value the future royalties arising from his work.
+Having chosen to capitalise his future income flow, he would be taxed at the market value of that income flow as at the date of transfer rather than on his future receipts as and when received.
+But where, on his retirement, he assigned the future royalties to his spouse or friend for no consideration, section 103 would tax the receipts when they are received by the transferee.
+That to my mind is a rational regime.
+Section 106(2), which I have set out in para 8 above, deals with the circumstance that a trade is treated as having been discontinued by reason of a change of the persons carrying it on and at the same time the right to receive the post cessation receipts is transferred to the company that carries on the trade thereafter.
+The rule is set out in the phrase: corporation tax shall not be charged by virtue of either [section 103 or 104], but any sum received by that company by virtue of the transfer shall be treated for corporation tax purposes as a receipt to be brought into the computation of the profits of the trade in the period in which it is received.
+I construe the words after the conjunction but as the trigger for disapplying sections 103 and 104.
+Like Briggs LJ, I adopt a purposive analysis.
+I do not accept that Parliament intended to create a large class of post cessation receipts which the transferee could release from a charge to tax by the simple expedient of discontinuing its trade or by creating a deemed discontinuation by transferring its trade to another person while reserving to itself the right to receive those receipts.
+That was the mischief which led to the enactment of sections 32 to 34 of the Finance Act 1960 in the first place.
+In my view this subsection takes effect only if the transferee receives those sums while it is trading.
+If it does, the transferee is taxed under Case I of Schedule D.
+If it does not receive the sums or if it receives them after it has ceased trading, section 103 applies to impose a charge on the recipient.
+In summary, (i) the basic rule in section 103 is that sums arising from the carrying on of the trade before discontinuance are, if received after discontinuance, charged to tax under Case VI of Schedule D; (ii) there is no restriction in section 103 itself on who the recipient of those fruits of the trade may be; (iii) section 106(1) quantifies the section 103 charge at the amount of the consideration or the market value of the rights to such sums when the former trader transfers its rights to those future receipts for value and the subsection imposes the charge on the former trader; and (iv) section 106(2) disapplies section 103 and substitutes Case I of Schedule D only if the transferee company is carrying on the continuing business when it receives the fruits of the trade, which is deemed to have been discontinued.
+It is necessary now to apply that analysis to the facts as found by the First tier Tribunal.
+Before so doing, I record that SDG did not argue before the First tier Tribunal that section 106(1) had the effect of imposing a charge to tax on an entity other than SDG.
+The Court of Appeal refused to allow SDG to run such an argument.
+I also am satisfied that it would not be fair to allow the argument to be advanced at this late stage.
+It involves SDG inviting the court to make inferences from findings of fact which were not directed to the argument it now wishes to advance.
+SDG did not lead any evidence about the various intra group transfers.
+It may be that SDG did not have the necessary evidence to explain how it was arranged that it should receive VRP2.
+But SDG had the burden of overturning the challenged assessment and did not lead evidence to achieve that.
+The court must therefore apply the law to the facts as found by the First tier Tribunal.
+In any event, SDGs principal case before this court was that there must have been an intra group transfer or transfers of the component parts of VRP2 the sum of money to it for no consideration and that there was no transfer to it of the rights to repayment which made up VRP2.
+If that is what occurred, or if there had been a transfer of the rights for no consideration, it would not assist SDGs appeal as section 106(1) would not apply to impose a charge on the transferor or transferors in the absence of a sale.
+Turning to the First tier Tribunals findings of fact, it is clear from the summary in para 11(ii) above that on the transfer of the trade of GUS plc in 1996, the entitlement to a VAT repayment arising from the discontinued trade, which became VRP2C, was not transferred.
+Similarly, Kay & Co and Abound retained their equivalent entitlements when their trades were transferred to RGL in 1997 (para 11(iii) above).
+Those entitlements became VRP2B. There is no explanation as to how those entitlements resulted in VRP2C and VRP2B being paid to SDG.
+There is no suggestion that either the transfer of the trade of SDG to RGL (para 11(i) above) or the later transfer of RGLs trade to SDG (para 11(iv) above), both of which may have relevance to the two components of VRP2A, was for value.
+Accordingly, section 106(1) is of no relevance to these transactions and no tax falls to be charged on the various transferors.
+Further, there was no evidence and no findings that any of the intra group transfers which may have occurred in order to transfer the right to receive VRP2 to SDG involved transfers for value.
+Again, section 106(1) has no application.
+Section 106(2) also is of no relevance.
+While the trade of SDG was transferred to SDHSL in 2005 (para 11(v) above), none of the repayments of VAT were made to SDHSL.
+That is the end of the matter.
+It is therefore not necessary to address Mr Goldbergs challenge to the finding by the First tier Tribunal that the transfer of SDGs trade to SDHSL did not include the entitlement to the VAT repayments, which was based on his construction of the transfer agreement between SDG and SDHSL in 2005.
+What is clear from the findings (viz paras 13 and 14 above) is that March organised the groups affairs so that VRP2 would be paid by HMRC to SDG via the solicitors, WGM, and that HMRC protected itself against other possible claimants by obtaining releases.
+SDG, as the First tier Tribunal found, received VRP2 as its beneficial owner.
+It received sums arising from the carrying on of the trade of the companies enumerated in para 11 above during periods before the discontinuance and the sums were not otherwise chargeable to tax.
+VRP2 accordingly is subject to a charge to corporation tax in the hands of its recipient, SDG.
+Conclusion
+Before concluding, I would like to acknowledge the admirable decision of the First tier Tribunal in this case, which involved grappling with many more factual and legal issues than this court has had to address.
+I would dismiss the appeal.
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+In this country, we are wary of giving too much power to the police.
+We believe that we should be free to be out and about in public without being subjected to compulsory powers of the police, at least unless and until they have reasonable grounds to suspect that we are up to no good.
+We have so far resisted suggestions that we should all have to carry identity cards that the police can demand to see whenever they want.
+We have unhappy memories of police powers to stop and search suspected persons even with reasonable grounds.
+We are even more suspicious of police powers to stop and search without having reasonable grounds to suspect that we are committing or going to commit a crime.
+Nevertheless, there are a few instances in which our Parliament has decided that such suspicionless stop and search powers are necessary for the protection of the public from terrorism or serious crime.
+The court can examine whether such a law is itself compatible with the rights set out in Schedule 1 to the Human Rights Act 1998.
+However, if it finds that it is not, the most the court can do is to make a declaration of incompatibility under section 4 of the Human Rights Act, leaving it to Parliament to decide what, if anything, to do about it.
+This is the primary remedy sought by Mr Southey QC on behalf of the claimant in this case.
+But, under section 6 of the Human Rights Act, even a compatible law has to be operated compatibly with the Convention rights in any individual case.
+There are many laws which are capable of being operated both compatibly and incompatibly, depending upon the facts of the particular case.
+The compatibility of the law itself has therefore to be judged in conjunction with the duty of the police to operate it in a compatible manner.
+The law in question is contained in section 60 of the Criminal Justice and Public Order Act 1994.
+It is now common ground that the power of suspicionless stop and search which it contains is an interference with the right to respect for private life, protected by article 8 of the European Convention on Human Rights, although perhaps not at the gravest end of such interferences.
+It is also common ground that the power pursues one of the legitimate aims which is capable of justifying such interferences under article 8(2), namely the prevention of disorder or crime.
+The argument is about whether it is in accordance with the law as is also required by article 8(2).
+In one sense, of course it is, because it is contained in an Act of the United Kingdom Parliament.
+But the Convention concept of legality entails more than mere compliance with the domestic law.
+It requires that the law be compatible with the rule of law.
+This means that it must be sufficiently accessible and foreseeable for the individual to regulate his conduct accordingly.
+More importantly in this case, there must be sufficient safeguards against the risk that it will be used in an arbitrary or discriminatory manner.
+As Lord Kerr put it in Beghal v Director of Public Prosecutions (Secretary of State for the Home Department and others intervening) [2015] UKSC 49; [2015] 3 WLR 344, at para 93, The opportunity to exercise a coercive power in an arbitrary or discriminatory fashion is antithetical to its legality in this sense.
+Section 60
+offensive weapons in a particular locality at a particular time.
+It provides: (l) If a police officer of or above the rank of inspector reasonably believes Section 60 is directed towards the risk of violence involving knives and other that incidents involving serious violence may (a) take place in any locality in his police area, and that it is expedient to give an authorisation under this section to prevent their occurrence, (aa) that (i) an incident involving serious violence has taken place in England and Wales in his police area; (ii) a dangerous instrument or offensive weapon used in the incident is being carried in any locality in his police area by a person; and it is expedient to give an authorisation (iii) under this section to find the instrument or weapon; or (b) that persons are carrying dangerous instruments or offensive weapons in any locality in his police area without good reason, he may give an authorisation that the powers conferred by this section are to be exercisable at any place within that locality for a specified period not exceeding 24 hours. (3) If it appears to an officer of or above the rank of superintendent that it is expedient to do so, having regard to offences which have, or are reasonably suspected to have, been committed in connection with any activity falling within the authorisation, he may direct that the authorisation shall continue in being for a further 24 hours. (3A) If an inspector gives an authorisation under subsection (1) he must, as soon as it is practicable to do so, cause an officer of or above the rank of superintendent to be informed. (4) This section confers on any constable in uniform power to stop any pedestrian and search him or anything (a) carried by him for offensive weapons or dangerous instruments; (b) to stop any vehicle and search the vehicle, its driver and any passenger for offensive weapons or dangerous instruments. (5) A constable may, in the exercise of the powers conferred by subsection (4) above, stop any person or vehicle and make any search he thinks fit whether or not he has any grounds for suspecting that the person or vehicle is carrying weapons or articles of that kind.
+Dangerous instruments are defined in section 60(11) as instruments which have a blade or are sharply pointed.
+Offensive weapons have the same meaning as in section 1(9) of the Police and Criminal Evidence Act 1984 (PACE), that is, any article (a) made or adapted for use for causing injury to persons; or (b) intended by the person having it with him for such use by him or by some other person.
+If an incident of serious violence has already taken place (as contemplated by section 60(1)(aa)), it includes any article used in the incident to cause or threaten injury to any person or otherwise to intimidate .
+Thus it will be seen that the individual police officers powers in section 60(4) and (5) depend upon a general authorisation (a) given by an officer of the rank of inspector or above, (b) for a period of up to 24 hours, although renewable for one further period of 24 hours, (c) within a particular locality, and (d) where the senior police officer reasonably believes that one or more of the three grounds set out in section 60(1) exists.
+Section 60(5) makes it clear that the individual police officer operating under such an authorisation does not have to have any grounds for suspecting that the person or vehicle stopped and searched is carrying offensive weapons or dangerous instruments.
+But section 60(4) makes it clear that his or her purpose must be to search for such things.
+The exercise of the powers set out in section 60 is subject to a number of safeguards and restrictions, including those contained in section 2 of PACE and in the Code of Practice for the exercise of such powers, issued under section 66 of that Act.
+In the Metropolitan Police area, it is also subject to the Metropolitan Police Services published Standard Operating Procedures, both on the general Principles for Stop and Search and on Section 60 of the Criminal Justice and Public Order Act 1994 in particular.
+It is well established that failure to comply with published policy will render the exercise of compulsory powers which interfere with individual freedom unlawful: R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245.
+It is also likely to expose the individual officer to disciplinary action.
+It will therefore be necessary to return to these additional constraints in some detail later.
+The facts
+The events which gave rise to these proceedings took place on 9 September 2010.
+There was then a significant problem of gang related violence in the London Borough of Haringey, resulting from tensions between two rival gangs, and the risk that gangs from outside the borough would come to their aid.
+Between 1 and 9 September there were many police intelligence reports relating to violent crime and the use of firearms, knives and other offensive weapons.
+There was an attempted murder and a stabbing on 4 September and another stabbing on 5 September.
+On 8 September there were intelligence reports about the use or storage or movement of firearms.
+These indicated a risk of further violence on the afternoon, evening and night of 9 September.
+In the morning of 9 September, Superintendent Barclay, Superintendent (Operations) in the Borough of Haringey, formed the belief (under section 60(1)(a)) that further incidents of serious violence were likely to take place that day and also (under section 60(1)(aa)) that people would be travelling to Haringey in possession of weapons that had been used in the incidents which had already taken place.
+Accordingly at 11.20 am he completed Form 5096, which constituted the authorisation.
+This authorised searches between 1.00 pm on 9 September 2010 and 6.00 am on 10 September in the whole Borough of Haringey apart from the wards of Fortis Green, Highgate, Bounds Green, Alexandra, Muswell Hill and Woodside.
+Under Grounds he checked the boxes corresponding to section 60(1)(a) and (aa).
+Under Additional notes was stated There are increasing tensions at present between gangs in this borough and boroughs beyond those neighbouring ours.
+A section 60 in the terms requested would support the aims of the tasked resources [to tackle Most Serious Violence, Serious Youth Violence and Knife Enabled Crime] and be a visible presence to deter the commission of offences in this borough.
+There followed details of the numerous intelligence reports, many to do with rivalry between the Wood Green Mob and the Grey Gang, which had led to this belief.
+The form concluded that In respect of the Human Rights Act 1998 Authorisation is Proportionate, Legal, Accountable and Necessary, in order to protect members of the public from being involved/surrounded by serious unlawful violence between opposing gang members.
+There is a history of violence between rival gangs on the borough which has previously resulted in serious assaults and criminal damage.
+Officers on duty were notified of the authorisation either in their daily briefing packs or over their radios.
+At the time of these events, Mrs Roberts was 37 years old, and working as a support worker providing in class support for young people with disabilities and learning difficulties.
+She had no convictions or cautions for criminal offences.
+She is of African Caribbean heritage.
+On 9 September 2010, shortly after 1.00 pm, she was travelling on the No 149 bus in Tottenham.
+She had not paid her fare.
+A ticket inspector read her Oyster card and found that, not only had it not been validated for that journey, but also that it did not have enough funds on it to pay the fare.
+When questioned, Mrs Roberts gave a false name and address and also falsely stated that she did not have any identification with her.
+The police were called and Police Constable Jacqui Reid attended.
+Mrs Roberts again denied having any identification with her.
+She appeared nervous and was keeping a tight hold upon her bag.
+PC Reid considered that she was holding her bag in a suspicious manner and might have an offensive weapon inside it.
+It was not uncommon for women of a similar age to carry weapons for other people.
+Earlier that day PC Reid had been involved in the search of such a woman who had been found to be in possession of a firearm and an offensive weapon and arrested.
+PC Reid explained her powers under section 60 of the 1994 Act and that she would search Mrs Roberts bag.
+Mrs Roberts said that she would prefer to be searched in a police station.
+PC Reid said that this was unnecessary and she would do it there and then.
+As she went to take Mrs Roberts bag, Mrs Roberts kept tight hold of it and began to walk away.
+She was restrained and handcuffed but continued to walk away.
+Eventually the police succeeded in restraining her.
+PC Reid searched her bag and Mrs Roberts gave her correct name and address.
+Inside the bag were bank cards in Mrs Roberts name and in two other names.
+She was arrested on suspicion of handling stolen goods, but no further action on that matter was taken once it was confirmed that the cards were indeed her own, in her maiden name, and her sons.
+PC Reid completed Form 5090, which recorded when and where the search had taken place, and gave the following reasons: Area is a hot spot for gang violence and people in possession of knives.
+Subject kept holding tightly onto her bag and appeared nervous and as if trying to conceal something she didnt want police to find.
+Mrs Roberts was handed a copy of this form after she was arrested and interviewed at the police station for the offence of obstructing the search.
+She was later cautioned for that offence but the caution was quashed by consent following the institution of these proceedings.
+Mrs Roberts explains that she did not want to be searched on the street because she was concerned that some of the young people with whom she worked might see it.
+But it is now conceded that PC Reid acted in accordance with section 60 of the 1994 Act, and indeed that the interference with Mrs Roberts article 8 rights was proportionate to the legitimate aim of the prevention of crime.
+Mrs Roberts brought judicial review proceedings alleging breaches of article 5 and of article 8 and of article 14.
+Both the Divisional Court ([2012] EWHC 1977 (Admin)) and the Court of Appeal ([2014] EWCA Civ 69; [2014] 1 WLR 3299) held that there was no deprivation of liberty within the meaning of article 5 (and there is no appeal against that).
+Both courts rejected the claim that the section 60 power was used in a manner which discriminated on grounds of race, contrary to article 14 (and there is no appeal against that).
+Both courts held that there was an interference with the right to respect for Mrs Roberts private life in article 8, but that it was in accordance with the law.
+That is the issue in this appeal.
+The case law
+As it is admitted that the interference with Mrs Roberts rights was, in the circumstances, proportionate to the legitimate aim of preventing crime, her claim can only succeed if the power under which it was done is in itself incompatible with the Convention rights because it does not have the character of law as required by the Convention.
+As Lord Reed explained in R (T) v Chief Constable of Greater Manchester Police [2014] UKSC 35; [2015] AC 49, at para 114, for the interference to be in accordance with the law, there must be safeguards which have the effect of enabling the proportionality of the interference to be adequately examined.
+Whether the interference in a given case was in fact proportionate is a separate question.
+The T case, as Lord Hughes explained in Beghal, at para 31, was concerned with a rigid rule which did not have the flexibility to ensure that interferences with article 8 rights were proportionate.
+In Beghal, as in this case, on the other hand, the court was concerned with the reverse situation, where safeguards may be required to guard against a broad discretion being used in an arbitrary, and thus disproportionate manner.
+This is the first case in which the power in section 60 has come before this court or before the European Court of Human Rights in Strasbourg.
+But two other powers of stop and search have come before this court or its predecessor, the appellate committee of the House of Lords, and one of those cases has gone to the Strasbourg court.
+We will deal with these, and another relevant Strasbourg decision, in chronological order.
+R (Gillan) v Commissioner of Police of the Metropolis [2006] UKHL 12; [2006] 2 AC 307, concerned the powers in sections 44 to 46 of the Terrorism Act 2000.
+Section 44(4) empowered a police officer of at least the rank of assistant chief constable to grant an authorisation for a renewable period of up to 28 days covering a specified area or place, which could be the whole of a police area.
+The practice was to grant successive 28 days authorisations covering the whole Metropolitan Police area.
+Under section 46(3) to (7), authorisations were subject to confirmation by the Home Secretary within 48 hours, failing which they ceased to have effect.
+But such confirmation had never been refused.
+Under section 44(3), authorisations can be given only if the person giving it considers it expedient for the prevention of acts of terrorism, a very broad ground.
+Terrorism is widely defined in section 1 of the 2000 Act.
+Under section 44(1) and (2) an authorisation allowed any uniformed police officer to stop a vehicle in the area and search it, the driver and any passenger, and to stop a pedestrian in the area and search the pedestrian and anything carried by him.
+Under section 45(1), the power could be exercised only for the purpose of searching for articles of a kind which could be used in connection with terrorism, but whether or not the constable has grounds for suspecting the presence of articles of that kind.
+Under section 45(4), he could detain the person or vehicle for such time as is reasonably required to permit the search to be carried out at or near the place where the person or vehicle is stopped.
+Two people, a student and a journalist, who had been stopped and searched on their way to a demonstration, complained of breaches of several Convention rights, including article 8.
+rights in question, Lord Bingham said this, at para 34: In considering the Convention requirement of legality common to all the The lawfulness requirement in the Convention addresses supremely important features of the rule of law.
+The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly accessible rules of law.
+The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred.
+This is what, in this context, is meant by arbitrariness, which is the antithesis of legality.
+This is the test which any interference with or derogation from a Convention right must meet if a violation is to be avoided.
+He went on to hold, at para 35, that the power in question did meet these requirements.
+That the constable need have no suspicion cannot, realistically, be interpreted as a warrant to stop and search people who are obviously not terrorist suspects, which would be futile and time wasting.
+It is to ensure that a constable is not deterred from stopping and searching a person whom he does suspect as a potential terrorist by the fear that he could not show reasonable grounds for his suspicion.
+He had earlier, at para 14, when rejecting the argument that expedient must be read down to necessary identified 11 constraints on the abuse of the power.
+The other members of the committee agreed with him on this point, while adding observations of their own, in particular that race or ethnicity could never be the sole ground for choosing a person to stop and search.
+In Gillan v United Kingdom (2010) 50 EHRR 1105, the Strasbourg court took a different view.
+The authorisation could be given for reasons of expediency rather than necessity.
+Once given, it was renewable indefinitely.
+The temporal and geographical restrictions were no real check.
+Above all, the court was concerned at the breadth of the discretion given to the individual police officer, the lack of any need to show reasonable suspicion, or even subjectively to suspect anything about the person stopped and searched, and the risks of discriminatory use and of misuse against demonstrators and protesters in breach of article 10 or 11 of the Convention.
+In particular, in the absence of any obligation on the part of the officer to show a reasonable suspicion, it is likely to be difficult if not impossible to prove that the power was improperly exercised (para 86).
+Hence the applicants article 8 rights had been violated.
+Despite this, it cannot be concluded from Gillan that the Strasbourg court would regard every suspicionless power to stop and search as failing the Convention requirement of lawfulness.
+In Colon v The Netherlands (2012) 55 EHRR SE45, it declared inadmissible a complaint about a Dutch power which in some respects was more comparable to the power at issue in this case than was the power in Gillan.
+Acting under the Municipalities Act, with the authority of a byelaw passed by the local council, the Burgomaster of Amsterdam designated most of the old centre of Amsterdam as a security risk area for a period of six months and again for a further period of 12 months.
+Under the Arms and Ammunition Act, this enabled a public prosecutor to order that, for a randomly selected period of 12 hours, any person within the designated area might be searched for the presence of weapons.
+The prosecutor had to give reasons for the order by reference to recent reports.
+The applicant refused to submit to a search when stopped and was arrested and prosecuted for failing to obey a lawful order.
+The applicants complaint that this interference with his article 8 rights was not in accordance with the law was limited to the ineffectiveness of the judicial remedies available, in particular that no prior judicial authorisation for the order was necessary (para 74).
+The court pointed out that the Burgomasters designation had to be based on a byelaw adopted by an elected representative body, which also had powers to investigate the Burgomasters use of the power.
+There was also an objection and appeal mechanism.
+The criminal courts could then examine the lawfulness of the use made of it.
+Hence the power was in accordance with the law (paras 75 79).
+The court went on to find that the interference was necessary in a democratic society.
+The legal framework involved both the Burgomaster and the prosecutor, hence no single executive officer could alone order a preventive search operation.
+These preventive searches were having their intended effect of helping to reduce violent crime in Amsterdam.
+These reasons were sufficient to justify the unpleasantness and inconvenience to the applicant.
+Mr Southey suggests that the reference, in the Dutch governments observations, to the individual police officers being given no latitude in deciding when to exercise their powers (para 68) must mean that they had to stop everyone in the designated area during the 12 hours in question and that therefore there was no risk of arbitrary decision making.
+That cannot be right.
+Old Amsterdam is a sizeable area frequented by many people both for business and for pleasure purposes.
+His better point is that the applicant limited his complaint to the lack of prior judicial sanction.
+The fact remains that the Strasbourg court held that particular suspicionless stop and search power compatible with article 8.
+More recently, in Beghal, the Supreme Court has considered a rather different power, under Schedule 7 to the Terrorism Act 2000.
+This allows a police or immigration officer to question a person at a port or in the border area whom he believes to be entering or leaving the United Kingdom or travelling by air within it.
+It also applies to a person on board a ship or aircraft which has arrived anywhere in the United Kingdom.
+The object of the questioning is to determine whether the person appears to be a terrorist within the meaning of that part of the Act.
+But the officer does not have to have grounds for suspecting that he does.
+This core power is supplemented by additional powers to stop, search and detain the person for a short time, and to require the production of documents.
+The claimant was stopped and questioned for an hour and three quarters on returning to this country from a visit to her husband in France where he was in custody in relation to terrorist offences.
+She was prosecuted for refusing to answer some of the questions.
+By a majority, Lord Kerr dissenting, the Supreme Court declined to hold that the prosecution was an unjustified interference with her Convention rights.
+Lord Hughes (with whom Lord Hodge agreed) pointed out that there is a distinction between port controls and street searches.
+The former are a lesser intrusion than the latter.
+We expect people to be searched at airports, for the safety of all.
+He listed, at para 43, a number of effective safeguards which he considered sufficient to meet the requirement of legality: They include: (i) the restriction to those passing into and out of the country; (ii) the restriction to the statutory purpose; (iii) the restriction to specially trained and accredited police officers; (iv) the restrictions on the duration of questioning; (v) the restrictions on the type of search; (vi) the requirement to give explanatory notice to those questioned ; (vii) the requirement to permit consultation with a solicitor and the notification of a third party; (viii) the requirement for records to be kept; (ix) the availability of judicial review if bad faith or collateral purpose is alleged, and also via the principle of legitimate expectation where a breach of the code of practice or of the several restrictions listed above is in issue;
+Lord Neuberger and Lord Dyson agreed, adding that in considering whether the legality principle was satisfied, one must look not only at the provisions of the statute or other relevant instrument which gives rise to the system in question but also at how that system actually works in practice (para 86).
+The differences from the system in Gillan showed that these powers were more foreseeable and less arbitrary (para 87).
+They could only be exercised (i) at ports and airports; (ii) against those passing through the UKs borders; (iii) for a limited purpose (para 88).
+Unlike the powers in Gillan, they were not extraordinary; they were used against a tiny proportion of passengers; and they yielded useful results.
+Nor could they be used against demonstrators and protesters (para 89).
+They also pointed out that it was important to the effectiveness of these powers that they be exercised randomly and therefore unpredictably.
+If this were not permissible the valuable power would either have to be abandoned or exercised in a far more invasive and extensive way, by questioning everyone passing through ports and airports (para 91).
+Mr Southey points out that there are other ways of securing the benefit of random and thus unpredictable searches than leaving the choice of whom to search to individual police officers.
+He himself has experienced a system in Mexico where passengers were randomly given a red or a green light: those given a red light were searched, those given a green light were not.
+It is, however, rather hard to see how this would work with searches conducted on the street or even on the No 149 bus.
+The other constraints
+In addition to the limited scope of the power in section 60 itself, it is necessary to take into account the other constraints upon the exercise of these powers.
+Those constraints arise both from the legal protection of the citizen from the misuse of police powers, and from the mechanisms designed to ensure that the police are accountable for their actions.
+In relation to legal protection, we have mentioned section 6 of the Human Rights Act, to which it will be necessary to return.
+In the event of a breach of that section, the victim of the unlawful act is entitled to seek a judicial remedy under section 8, which might in an appropriate case include an award of damages (as, for example, in H v Commissioner of Police of the Metropolis (Liberty and another intervening) [2013] EWCA Civ 69; [2013] 1 WLR 3021).
+But the legal protection of the citizen pre dates the Human Rights Act.
+In relation to searches, the starting point is the common law, under which it is contrary to constitutional principle and illegal to search someone to establish whether there are grounds for an arrest (Jackson v Stevenson (1897) 2 Adam 255).
+Powers of stop and search therefore require Parliamentary authority.
+The 1994 Act is one of a number of statutes which provide such authority.
+Like other aspects of the relationship between the citizen and the police, however, the exercise of the powers conferred by the 1994 Act is subject to detailed statutory regulation by PACE.
+Where there is a failure to comply with PACE, rendering the search unlawful, the victim can in principle bring an action for damages against the chief constable (or, in the case of the Metropolitan Police, the Commissioner), who is vicariously liable for the unlawful acts committed by his or her officers (as, for example, in OLoughlin v Chief Constable of Essex [1998] 1 WLR 374 and Abraham v Commissioner of Police of the Metropolis [2001] 1 WLR 1257).
+Legal remedies before the courts are not, however, the only mechanism for protecting citizens against the misuse of police powers and ensuring the accountability of police officers.
+At a national level, a variety of powers are possessed by the Home Secretary, including the power to issue Codes of Practice under section 66 of PACE, and the power to appoint Her Majestys Inspectors of Constabulary and to direct them to carry out inspections and report to her, under section 54 of the Police Act 1996.
+A wide range of policing matters, including operational decisions by chief constables, are also examined in Parliament by the Home Affairs Select Committee.
+At a local level, police and crime commissioners, directly elected by the communities they serve and subject to scrutiny by local police and crime panels, are responsible for holding the chief constable of their area to account for the way in which he or she, and the people under his or her direction and control, exercise their functions: Police Reform and Social Responsibility Act 2011, section 1(7).
+In relation to the Metropolitan Police, the equivalent function is performed by the Mayors Office for Policing and Crime, an office occupied by the Mayor of London: section 3(7) of the 2011 Act.
+At the time of the events with which this appeal is concerned, a broadly similar function was performed by police authorities established under the Police and Magistrates Courts Act 1994, and, in relation to the Metropolitan Police, by the Metropolitan Police Authority established under the Greater London Authority Act 1999.
+In individual cases, complaints about the misuse of police powers can be made to the chief constable (or, in the case of the Metropolitan Police, to the Commissioner), to the police and crime commissioner (or, in the case of the Metropolitan Police, to the Mayors Office for Policing and Crime), or to the Independent Police Complaints Commission, an independent body established under the Police Reform Act 2002.
+Provision is made under that Act for the determination of complaints and for a system of appeals.
+That general explanation forms the background to the constraints and safeguards applying specifically to the powers with which this appeal is concerned.
+First there are the requirements of sections 2 and 3 of PACE, which apply to most stop and search powers, including those under section 60 of the 1994 Act.
+Under section 2, before the officer begins the search, he must take reasonable steps to tell the person being searched his name, the station to which he is attached, the object of the search and the grounds for making it, and that the person can only be detained for the time reasonably required to carry out the search.
+Breach of section 2 would render the search unlawful (Osman v Director of Public Prosecutions (1999) 163 JP 725).
+Section 3 requires the officer to make a record in writing unless this is not practicable, either as part of the custody record if the person is arrested and taken to a police station or on the spot or as soon as practicable after the search if he is not.
+The person searched is entitled to a copy of the record if he asks for one within three months.
+This was the Form 5090 handed over to Mrs Roberts after her arrest (see para 12 above).
+Next there are the statutory Codes of Practice, issued under section 66 of PACE.
+Code A relates to the exercise by police officers of statutory powers of stop and search.
+This governs both the authorisation and the search itself.
+It is not practicable to cite all the relevant paragraphs of the 2009 version in force at the time of this encounter.
+But the flavour may be gleaned from para 1.1: Powers to stop and search must be used fairly, responsibly, with respect for people being searched and without unlawful discrimination.
+The Race Relations (Amendment) Act 2000 makes it unlawful for police officers to discriminate on the grounds of race, colour, ethnic origin, nationality or national origins when using their powers.
+Mr Southey complains that this does not in terms tell police officers that they must not select people on grounds of race or ethnicity alone.
+But that is what discrimination means.
+If anything, this paragraph is clearer than the one in the current (2015) version, which has been updated to refer to all the characteristics now protected by the Equality Act 2010, without listing them.
+The current Code does contain a helpful paragraph, para 2.14A, which was not present in the earlier version: The selection of persons and vehicles under section 60 to be stopped and, if appropriate, searched should reflect an objective assessment of the nature of the incident or weapon in question and the individuals and vehicles thought likely to be associated with that incident or those weapons.
+The powers must not be used to stop and search persons and vehicles for reasons unconnected with the purpose of the authorisation.
+When selecting persons and vehicles to be stopped in response to a specific threat or incident, officers must take care not to discriminate unlawfully against anyone on the grounds of any of the protected characteristics set out in the Equality Act 2010 (see para 1.1).
+Nevertheless, the earlier Code explains and stresses the importance of explaining and recording the reasons for the stop (paras 3.8 3.11 and section 4).
+Supervising officers must monitor the use of stop and search powers and should consider in particular whether there is any evidence that they are being exercised on the basis of stereotyped images or inappropriate generalisations (para 5.1).
+They must keep comprehensive statistical records so as to identify disproportionate use either by particular officers or against particular sections of the community (para 5.3).
+As to the authorisation, both the period of time and the geographical area defined in the authorisation must be the minimum necessary to achieve the legislative aim (para 2.13 and Notes for Guidance, para 13).
+Thus the authorisation in this case was for less than the maximum 24 hours permitted and the area, although substantial, excluded quite large areas of the borough of Haringey.
+The Notes for Guidance, at para 10, stress that: The powers under section 60 are separate from and additional to the normal stop and search powers which require reasonable grounds to suspect an individual of carrying an offensive weapon (or other article).
+Their overall purpose is to prevent serious violence and the widespread carrying of weapons which might lead to persons being seriously injured by disarming potential offenders in circumstances where other powers would not be sufficient.
+They should not therefore be used to replace or circumvent the normal powers for dealing with routine crime problems.
+Paragraph 11 points out that authorisations require a reasonable belief that must have an objective basis, of which examples are given.
+Then there are the applicable policies and instructions of the police force in question, in this case, the Metropolitan Police.
+The Metropolitan Police Standard Operating Procedures are published on their website.
+These largely repeat the requirements of the legislation and the Code, but with some additional features.
+They are designed to be relatively simple to use and easy to remember.
+The Principles for Stops and Searches, current at the time, contains a section on the Race Relations (Amendment) Act 2000, which extended the duties in the Race Relations Act 1976 to public authorities including the police.
+This reminds officers of their general duty to have due regard to eliminating unlawful discrimination.
+More to the point, it states that Officers must be aware that to go beyond their powers and search somebody solely on grounds of race, colour, or otherwise treat someone unfavourably on such grounds is unlawful and the individual officer, in addition to the Commissioner, may face legal or disciplinary proceedings.
+The Principles also contain a section on Human Rights, instructing officers to apply the PLAN B checklist to all their decision making.
+Their actions must be Proportionate, have a Legal power or purpose, Accountable (through record keeping and scrutiny), Necessary in the circumstances and use the Best information available.
+The specific Standard Operating Procedures on Section 60 Criminal Justice and Public Order Act, current at the time, instructed senior officers giving the authorisation that these must be justified on the basis that the exercise of the power is, in all circumstances a proportionate and necessary response for achieving the purpose for which Parliament provided the power.
+It reminds officers that they must have a reasonable belief in the grounds and that there must be an objective basis in intelligence or relevant information.
+It suggests that the use of section 60 should be considered where there has been a significant increase in knife point robberies in a limited area and also, for example, for gang related violence or disorder, football related violence and events such as demonstrations and music concerts that typically include a large scale gathering of people which, combined with other factors, indicate a likelihood of violence or the commission of offences.
+It stresses the importance of engagement with local community groups and of feedback.
+Briefings should be the rule, if practicable.
+For individual officers carrying out the stop and search, it provides guidance on filling out Form 5090 and about the encounter.
+The mnemonic GOWISELY (Grounds, Object, Warrant, Station, Entitlement to a copy, Legal power, and tell the person You are being detained) applies, with some additional guidance.
+These instructions are regularly reviewed.
+Since the encounter in question they have been updated to take account of the Best Use of Stop and Search Scheme (BUSS), issued by the Home Secretary and College of Policing in April 2014 following reports prepared by Her Majestys Inspectors of Constabulary, under the direction of the Home Secretary, on the use of stop and search powers.
+Announcing this to Parliament, the Home Secretary explained that she had long been concerned about the use of stop and search by the police.
+Although an important police power, when misused it could be counter productive.
+It was an enormous waste of police time.
+And when innocent people were stopped and searched for no good reason it was hugely damaging to the relationship between the police and the public.
+Nevertheless, adopting the scheme was not compulsory.
+Police forces in this country are not subject to direction from the government.
+They are operationally independent.
+But in fact all of them have adopted it, including the Metropolitan Police.
+BUSS covers all kinds of stop and search powers, but in relation to section 60 it specifically provides: (i) that Forces in the scheme will raise the level of authorisation to Assistant Chief Constable (or the equivalent in the Metropolitan Police and City of London Police); (ii) that authorisations must only be given when the officer believes it necessary, rather than merely expedient, for any of the statutory purposes; (iii) that in relation to future serious violence, the officer must reasonably believe that it will, rather than may, take place; (iv) that authorisations should be for no more than 15 hours in the first instance; and (v) that Forces must communicate with the public in the area in advance where practicable and afterwards.
+Mr Southey argues that these improvements show that section 60 as enacted does not contain sufficient safeguards.
+On behalf of the Secretary of State, Lord Keen QC argues that BUSS is irrelevant.
+The Home Secretarys determination to seek improvements in the operation of all stop and search powers in order to promote better community relations does not prove that the previous use of the power was not in accordance with the law.
+However, it is worth bearing in mind that there has been a very significant reduction in the use of these powers in recent years.
+Discussion
+Any random suspicionless power of stop and search carries with it the risk that it will be used in an arbitrary or discriminatory manner in individual cases.
+There are, however, great benefits to the public in such a power, as was pointed out both by Lord Neuberger and Lord Dyson in Beghal and by Moses LJ in this case.
+It is the randomness and therefore the unpredictability of the search which has the deterrent effect and also increases the chance that weapons will be detected.
+The purpose of this is to reduce the risk of serious violence where knives and other offensive weapons are used, especially that associated with gangs and large crowds.
+It must be borne in mind that many of these gangs are largely composed of young people from black and minority ethnic groups.
+While there is a concern that members of these groups should not be disproportionately targeted, it is members of these groups who will benefit most from the reduction in violence, serious injury and death that may result from the use of such powers.
+Put bluntly, it is mostly young black lives that will be saved if there is less gang violence in London and some other cities.
+It cannot be too often stressed that, whatever the scope of the power in question, it must be operated in a lawful manner.
+It is not enough simply to look at the content of the power.
+It has to be read in conjunction with section 6(1) of the Human Rights Act 1998, which makes it unlawful for a police officer to act in a manner which is incompatible with the Convention rights of any individual.
+It has also to be read in conjunction with the Equality Act 2010, which makes it unlawful for a police officer to discriminate on racial grounds in the exercise of his powers.
+It might be thought that these two additional legal restraints were sufficient safeguard in themselves.
+The result of breaching either will be legal liability and probably disciplinary sanctions as well.
+It is said that, without the need to have reasonable grounds for suspecting the person or vehicle stopped to be carrying a weapon, it is hard to judge the proportionality of the stop.
+However, that is to leave out of account all the other features, contained in a mixture of the Act itself, PACE and the Force Standard Operating Procedures, which guard against the risk that the officer will not, in fact, have good reasons for the decision.
+The result of breaching these will in many cases be to render the stop and search itself unlawful and to expose the officers concerned to disciplinary action.
+First, as to the authorisation itself: (i) the officer has reasonably to believe that the grounds for making an authorisation exist; (ii) those grounds are much more tightly framed than the grounds in Gillan; (iii) the officers belief clearly has to be based on evidence; (iv) he has to record in writing, not only what his grounds are, but the evidence on which his belief is based; (v) he has expressly to consider whether the action is necessary and proportionate to the danger contemplated; (vi) that is why, in reality, he has to believe that an authorisation is necessary rather than merely expedient; (vii) the authorisation can only be for a very limited period of time; (viii) it can only be renewed once for a limited period of time; rolling renewals are not possible; (ix) it can only cover a limited geographical area; (x) it is subject to review.
+Second, as to the operation itself: (i) there should be prior briefing if possible and certainly de briefing afterwards; (ii) there should be prior community engagement if possible and certainly afterwards; (iii) where the authorisation is given by an officer below the rank of superintendent, it is subject to review by a superintendent; (iv) after the authorisation is over, the operation should be evaluated, in terms of whether its objectives were met, numbers of searches, number of arrests, number of weapons seized, disproportionality etc, and community confidence and reassurance.
+Third, as to the actual encounter on the street: (i) the officer must be in uniform and identify himself by name and police station to the person stopped; (ii) the officer must explain the power under which he is acting, the object of the search and why he is doing it; (iii) the officer must record this in writing; (iv) the person searched is entitled to a copy of the form; (v) the purpose is limited to searching for offensive weapons or dangerous implements.
+All of these requirements, in particular to give reasons both for the authorisation and for the stop, should make it possible to judge whether the action was necessary in a democratic society for the prevention of disorder or crime.
+No system of safeguards in the world can guarantee that no one will ever act unlawfully or contrary to orders.
+If they do so act, the individual will have a remedy.
+The law itself is not to blame for individual shortcomings which it does its best to prevent.
+It is not incompatible with the Convention rights.
+It would not, therefore, be right to make a declaration of incompatibility in this case.
+Neither would it be appropriate to make a declaration that the Guidance current at the time, or now, was inadequate or that this particular search was not in accordance with the law.
+We would dismiss this appeal.
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+The council appeals against the decision that it is liable to pay compensation under section 106 of the Building Act 1984, for loss to a business on Hastings Pier arising from its closure during 2006 under the councils emergency powers.
+The respondent (Manolete) pursued the claim as assignee of Stylus Sports Ltd (Stylus), which owned and operated the business at the relevant time, but went into liquidation in late 2011.
+The only issue in the appeal is whether Stylus was itself in default within the meaning of that section, so precluding it from making a claim.
+The statutory provisions
+As explained more fully by Jackson LJ in the Court of Appeal ([2014] 1 WLR 4030, [2014] EWCA Civ 562, 46 paras 46ff), the 1984 Act is one of a sequence of public health statutes, going back to the 19th century, which among other matters have dealt with the regulation of new buildings and the control of dangerous structures.
+The 1984 Act draws together a number of such provisions, including building regulations (Part I), supervision of construction work other than by local authorities (Part II), and Other provisions about buildings (Part III).
+Within Part III, and relevant to this case, are section 77 (Dangerous building) and 78 (Dangerous building emergency measures).
+Section 77 enables the council to apply to the magistrates court in relation to a building or structure which is in such a condition, or is used to carry such loads, as to be dangerous.
+Under subsection (1), the court may either (a) where danger arises from the condition of the building or structure, order the owner to execute work necessary to obviate the danger or to demolish it, or (b) where danger arises from overloading of the building or structure, make an order restricting its use until a magistrates court, being satisfied that any necessary works have been executed, withdraws or modifies the restriction.
+By section 77(2)(b) if the person against whom an order is made under subsection (1)(a) above fails to comply with the order within the time specified, the local authority may execute the order and (b) recover the expenses reasonably incurred by them in doing so from the person in default.
+Under section 78 (directly relevant to this case), where it appears to the authority that a building or structure or part of it is in such a state, or is used to carry such loads, as to be dangerous, and that immediate action should be taken to remove the danger, they may take such steps as may be necessary for that purpose, having given notice if reasonably practicable to the owner and occupiers.
+Compensation is governed by section 106 (in Part IV of the Act): (1) A local authority shall make full compensation to a person who has sustained damage by reason of the exercise by the authority, in relation to a matter as to which he has not himself been in default, of any of their powers under this Act. (emphasis added) By section 106(2) any dispute arising as to the fact of damage, or as to the amount of compensation is to be determined by arbitration.
+section 106 must be read with section 78(7): In the context of a claim resulting from emergency action under section 78, (7) Where in consequence of the exercise of the powers conferred by this section the owner or occupier of any premises sustains damage, but section 106(1) below does not apply because the owner or occupier has been in default (a) the owner or occupier may apply to a magistrates court to determine whether the local authority were justified in exercising their powers under this section so as to occasion the damage sustained, and (b) if the court determines that the local authority were not so justified, the owner or occupier is entitled to compensation, and section 106(2) and (3) below applies in relation to any dispute as regards compensation arising under this subsection.
+The default on which the council relies includes alleged breaches (actual or prospective) of the duties imposed by the Occupiers Liability Act 1957 and the Health and Safety at Work etc Act 1974.
+In short the former (by section 2) imposes on occupiers of premises the common duty of care; that is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.
+The latter, by section 2, imposes on an employer the duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees, and in particular to maintain any place of work (including means of access and egress) in a condition that is safe and without risks to their health.
+The facts
+The history of the pier structure is described in the report by engineers for the council (the Gifford report) in June 2006, which led directly to their decision to close the pier: The original Hastings Pier was opened in 1872.
+It was built to a length of 277m with its timber deck bearing on wrought iron lattice trusses, all supported on three rows of cast iron screw piles via cast iron columns; the columns were braced with wrought iron ties secured with cast iron clamps.
+The width varied from 13.6m at the Central Section to 60m at Head and 39.6m at the landward end.
+Repairs utilising steel trusses and steel columns have been undertaken at various times since following a fire in 1917 to the Pier Head, partial demolition (sectioning) and actual bomb damage during the 1939 45 war, and widening to both sides of the Pier They commented on the general state of the pier: Experience has shown the typical life of Victorian piers to be approximately 100 years; during this time continual maintenance would have been required, including the replacement [of] some critical elements.
+After this time, major reconstruction works would be required if continued use of the pier were to be viable.
+The general condition of Hastings Pier fits this pattern.
+In recent years the freehold of the pier was owned by Ravenclaw Investments Incorporated (Ravenclaw), a company registered in Panama, and managed on their behalf by Boss Management UK Ltd (Boss).
+Stylus occupied two units, C2 and C15, close to the entrance to the pier at the northern (town) end.
+They operated a bingo hall in unit C2 and an amusement arcade in unit C15.
+The units were held respectively under leases from Ravenclaw dated 14 August 2001 and 10 October 2001.
+The premises as so leased were confined generally to the internal non structural walls, and internal surfaces, and specifically excluded any main structural parts of the premises or of the building (Schedule 1).
+Ravenclaw as landlord was responsible for repair and when necessary renewal of the structure including the support structure of the pier.
+In 2004 Stylus became concerned about the structural integrity of the pier.
+They commissioned a full structural engineering survey of the pier by Hamill Davies Limited.
+The report (the HDL report), produced in September 2004, was provided both to Ravenclaw and in January 2005 to the council.
+It advised that urgent work was required to repair piles at the far end of the pier (some distance beyond the Stylus units).
+This should be done ideally within the next two months to avoid the worst of the winter weather; and the deck area supported by these piles should be closed to the public until this work is completed.
+They also advised that future work should be carried out to the structure of the pier in the area of the Stylus units.
+Of this they said: With regard to the remaining work it is understood that this cannot be undertaken immediately.
+However this work should be completed within one year, with regular monitoring of the defective areas until this can be achieved.
+Unless this is carried out we judge there to be an unacceptable risk to the public.
+There is no evidence of action by Ravenclaw or the council to remedy the structural defects in response to this report, other than some limited work by Ravenclaw in the winter of 2005 2006.
+Meanwhile the public continued to use the pier, and the pier facilities (including the bingo hall and the amusement arcade) remained open for business.
+In early April 2006 a council officer inspected the underside of the pier, when a section of tension cord fell from the pier.
+The council commissioned Gifford to report on the structural stability of the pier.
+Their brief included appraisal of its structural integrity and any potential risks to the public.
+The areas chosen were those that would be subjected to the greatest crowd loading in the event of mass evacuation of the buildings, ie the designated escape routes (report para 1.3).
+In May 2006 the council tried without success to compel Ravenclaw to commission a full structural assessment of the Pier.
+On 15 June 2006 they asked Boss, as agents for Ravenclaw, to close off the pier beyond the front facade, but that request was not complied with.
+The Gifford report, received by the council on 16 June 2006, identified serious structural defects, and recommended a full structural survey as a matter of urgency.
+It recommended by way of immediate restrictions a) Access resulting in the potential for crowd loading on the Central Section and beyond should be prohibited until either, as a minimum, the presently identified defects in the area of the Central Section bounded by Columns 197 216 211 200 have been rectified or alternative safe access routes have been provided. b) Access by shop tenants or others for the purpose of maintenance need not be restricted. (para 6.1) The columns there identified were beneath the Stylus premises.
+On 16 June the Council exercised its emergency powers under section 78 of the 1984 Act to close the pier to the public from the front facade onwards.
+A barrier was erected across the frontage with a notice saying danger keep out.
+A letter was delivered on the same day to tenants of units on the pier stating that the pier was being closed from the main entrance building onwards, including the Bingo Hall and Amusement arcade.
+The letter indicated that the council had had concerns about the pier for some time and had served notice on the owners requiring them to carry out a survey of the structure.
+It continued: In recent days the council has become aware that major events were still being booked for the Pier ballroom; two of these have been booked for July and one in August.
+As a result of its concerns over the Pier structure the Council commissioned consulting engineers Gifford of Southampton to look at a specific area of concern under the main covered walkway around the main facade entrance.
+This inspection was carried out yesterday.
+It has been established that at least five trusses have failed in this area.
+Our consultant is of the opinion that it is unsafe to allow large numbers of people onto the Pier.
+This area provides the only method of access onto and off the Pier.
+Any emergency affecting the rest of Pier, including the ballroom, requiring evacuation would mean crowds of people walking over the area where we have been specifically advised that crowds are unsafe.
+As a result the council has had no option other than to use its emergency powers to close much of the Pier immediately.
+The letter noted that, despite previous attempts to resolve the situation, the Pier management were continuing to plan for large events.
+On the same day the council applied to Hastings Magistrates Court under section 77(1)(b) of the 1984 Act.
+The initial hearing at the Magistrates Court took place on 21 June 2006.
+A representative of Stylus attended and asked to be included in the proceedings.
+After adjournments, at the substantive hearing on 12 September the court made an order under that section prohibiting public access to the pier until the necessary remedial works had been carried out.
+Meanwhile, in July 2006 Stylus instructed HDL to undertake an inspection of the area beneath its units.
+It also instituted proceedings against Ravenclaw to require them to carry out the works of repair under the lease, and obtained summary judgment, but that was not complied with by Ravenclaw.
+In May 2007 Stylus began itself to carry out the necessary remedial works under its own premises.
+Those having been completed, the magistrates court on 4 July 2007 varied its order so as to permit public access to its premises.
+On 8 November 2006 Stylus had notified the council of its intention to claim compensation under section 106(1) of the 1984 Act, for losses allegedly suffered as a result of the closure of the pier between 16 June and 12 September 2006.
+In late 2011 Stylus went into liquidation, and in January 2012 the liquidator of Stylus assigned Stylus claim against the Council to Manolete, the present respondents.
+The present proceedings in the Technology and Construction Court (begun under CPR Part 8, on the basis that there would be no substantial dispute of fact) sought a declaration that the council were liable to pay compensation: [2013] EWHC 842 (TCC); [2013] 2 EGLR 17.
+The proceedings below
+Before Ramsey J the council raised a number of defences including the one now in issue, which he summarised: That the Council is not liable under section 106 of the 1984 Act because the claimant was in default for the purposes of that section because of the breach of section 2 of the Occupiers Liability Act 1957 and/or because it took a lease of the Pier past the end of its design life from a company registered outside the jurisdiction and was aware by the very latest in 2004 that there were serious problems with the structure of the Pier but took no adequate steps to ensure the Pier was repaired or the public excluded. (para 14) He noted that in submissions the council had relied also on the duties under the Health and Safety at Work etc Act 1974.
+He rejected the defence, holding that the reference to default should be read as default in respect of obligations imposed by the 1984 Act itself.
+In support he cited authorities under previous statutes using the same expression, in particular Neath Rural District Council v Williams [1951] 1 KB 115.
+He added: If that is not so and if it were necessary to see whether a party was in breach of any provision of other statutes, as is submitted here, then the scope of enquiry would be large and would require investigation of further factual matters to determine whether there was a default in terms of those statutes. (para 46) He also rejected a separate defence that, absent section 78, Stylus would have had no action in tort in any event.
+That is no longer in issue.
+In the Court of Appeal [2014] 1 WLR 4030 Jackson LJ agreed that default was limited to default under the 1984 Act.
+He reviewed at length the legislative history, dating from the Metropolitan Buildings Act 1844.
+He noted that compensation provisions, substantially in the same form as section 106, had appeared in the Public Health Acts of 1875 and 1936.
+He referred to Hobbs v Winchester Corpn [1910] 2 KB 471, which he read as treating the words in default as directed to default under the Act of 1875.
+However, he accepted the submission of counsel for the authority that in both the 1875 and 1936 Act it should be read as extending also to related statutes: He points out that in many instances a building owner would be in breach of local Building Acts and Improvement Acts.
+If the local authority intervened in order to protect public safety, it would be absurd if the building owner could recover compensation under section 308.
+I accept that submission.
+In my view the default proviso in the 1875 Act was referring to a default under the 1875 Act or related Acts. (para 52 emphasis added) However, the same extension was not required under the 1984 Act, because There are no local byelaws or parallel statutes directed to the same subject matter as the 1984 Act.
+The 1984 Act and the Regulations made under it are comprehensive. (para 76) A narrow construction was supported also by looking at the statute as a whole: Where the same phrase occurs more than once it should generally be construed in the same way on each occasion The phrase in default occurs in three significant places in the 1984 Act, namely in section 77(2)(b), section 78(7) and section 106(1).
+In both sections 77(2)(b) and sections 78(7) default has a narrow meaning.
+It clearly refers to a failure to perform obligations under the 1984 Act.
+This circumstance is a pointer towards construing default in section 106 narrowly, namely as meaning breach of an obligation under the 1984 Act. (paras 74 75) In agreement with the judge he concluded: The phrase in default in section 106 of the 1984 Act means in breach of an obligation arising under the 1984 Act.
+The provision does not require the court or the arbitrator to conduct a wide ranging review of other legislation and the common law in order to see whether the claimant is in breach of any duties arising outside the 1984 Act. (para 79)
+The court had some sympathy for the argument that the council should not be obliged to compensate Stylus for being prevented from admitting the public to dangerous premises.
+But, given that the true culprit Ravenclaw was beyond the reach of enforcement procedures, the court was faced with the familiar problem of deciding which of the surviving parties should bear the loss, the answer to which depended on the statutory scheme.
+He added: [Stylus] has acted responsibly at all stages.
+It did its utmost to compel the landlord to carry out remedial works.
+Ultimately it stepped into the breach and did the works itself.
+If the local authority had wished to avoid liability to pay compensation under section 106, it could have brought proceedings under section 77 of the 1984 Act sooner and thereby avoided the need to take emergency action under section 78.
+Finally, on this point, [the councils] general arguments will still be available at the quantum hearing before the arbitrator.
+The local authority will be entitled to argue that even if it had not fenced off the pier, [Stylus] could have made little use of its two units. (paras 81 82)
+Finally he considered and rejected a separate argument on behalf of the council that the claim was precluded by the ex turpi causa principle, on the basis that to admit the public would have been contrary to its statutory responsibilities: the motivation for the local authoritys closure of the pier to the public on 16 June 2006 was the likelihood of large crowds accessing the pier on and after 17 June for reasons unconnected with [Stylus] business.
+As at 16 June 2006 [Stylus] had not incurred liability to any member of the public for breach of the Occupiers Liability Act 1957.
+Nor can I see any basis for saying that [Stylus] had committed any breach of the statutory duties which it owed to its employees under the Health and Safety at Work etc Act 1974 . (paras 91 92) In his view, the default proviso was the control mechanism which eliminates claims that are unacceptable on grounds of public policy.
+It left no room for the application of the ex turpi causa rule (para 94).
+He added: 95.
+Having said that, I do accept that the structural condition of the pier will be relevant to the quantum of the claim.
+The local authority will be entitled to argue in the arbitration due to be held under section 106(2) that the loss of profit caused by the local authoritys conduct must be substantially reduced by reason of the structural condition of the pier.
+Indeed the local authority would be entitled to argue that the quantum is reduced to nil, although on the evidence which I have seen that outcome seems unlikely.
+The submissions in summary
+In this court Mr Gasztowicz QC for the council submits that the courts were wrong to treat the word default as confined to default under the 1984 Act.
+That is supported both by ordinary meaning of the word and by the legislative history.
+The authorities referred to by the judge and the Court of Appeal do not lead to a different conclusion.
+Stylus was in default in the relevant sense because it was in breach of its obligations under the 1957 Act and 1974 Acts in relation to the very matter in relation to which the statutory power was exercised, namely the admission of the public to premises which when they were admitted were dangerous (to them and employees) (printed case p 30)
+He relies in particular on Stylus own evidence which showed that: i) It had received the September 2004 HDL report showing that urgent repairs were necessary to protect the public, including work in the Stylus area of the pier, which if not carried out within at most a year from September 2004 would mean there would be an unacceptable risk to the public; ii) No further report had been obtained giving a different assessment on the state of the Pier in this area two years on; iii) Notwithstanding the contents of the report the necessary work was not done prior to closure.
+Although the primary responsibility for repair lay with the freeholders, Stylus had the ability to carry them out in default (Granada Theatres Ltd v Freehold Investment (Leytonstone) Ltd [1959] 1 Ch 592, 608), as indeed it did following the court order.
+By continuing to invite the public to its premises it was causing loading by the public resulting in them and its employees being made subject (in the words of the HDL report) to unacceptable risk.
+For Manolete, Mr Bowdery QC (who did not appear below) supports the view of the courts below on the interpretation of the word default, but submits also that the appeal fails on the facts.
+As the Court of Appeal held, the council was unable to show that Stylus was in default of any legal obligation under either of the statutes relied on or otherwise.
+Furthermore, there was nothing to show that the council had ever regarded Styluss use of its own premises as dangerous to the public or its employees, following its receipt of the HDL report in early 2005.
+As the correspondence showed, and the Court of Appeal found, the motivation for the use of emergency powers was the prospect of large crowds at events unconnected with the use of the Stylus premises.
+Discussion
+With respect to the courts below, while recognising the somewhat different emphasis of the arguments in this court, there is a danger of over complication.
+If one takes the words of section 106(1) at face value, they do not appear to pose any great difficulty either of interpretation or of application to the facts of this case.
+The section gives a right to compensation to a person who has sustained damage by reason of the exercise of any of the authoritys powers under the Act in relation to a matter as to which he has not himself been in default.
+This raises two questions: Is that a matter as to which the claimant has been in default? i) What was the matter in relation to which the authority has exercised its powers? ii)
+It is important to keep in mind that the relevant power is the power to take emergency action under section 78.
+The claim is for loss resulting from that emergency action, not from the order of the magistrates court, which itself carries no right to compensation.
+That is why the claim is limited to the period from the date of closure until the order made on 12 September.
+This point gains emphasis from section 78(7).
+Even a claimant in default (in the relevant sense) is not precluded from seeking compensation, if the court determines that the authority were not justified in using their emergency power, rather than first seeking an order from the magistrates under section 77.
+The right to compensation provides an important check on the unbridled use of that emergency power under section 78, in respect of which (unlike section 77) there is no right of objection or recourse to the court.
+The councils decision to act under section 78 in this case is not itself in issue.
+But it is necessary to identify the matter which led it to take such emergency action, rather than applying first to the magistrates court.
+That is clearly identified by the evidence, in particular the letter sent to the tenants at the time.
+It was not the general state of the pier, nor even the specific repairs identified in the HDL report on which Mr Gasztowicz relies.
+The council had been aware of those matters at least since the receipt of that report in 2005, but had not thought it necessary to close the pier, nor to take any legal action against Stylus at that stage.
+If they had wished to do so, there appears no reason why they could not have applied to the court for the appropriate order, giving Stylus the opportunity to make representations.
+No issue of compensation would have then arisen.
+As is clear from the councils letter to tenants, the matter which triggered the action in June 2006 was the state of the pier combined with fear of possible collapse from crowd loading during the events planned for that month, particularly the risk of overloading in an emergency evacuation.
+Stylus was not legally responsible for the state of the pier, nor was it responsible for the events which triggered the councils action.
+Whatever may have been its position as respects its clients and employees, it was not in default as to the matter which led to the councils use of section 78.
+On this simple basis, in my view, the company is entitled to succeed.
+That conclusion makes it strictly unnecessary to address the view of the courts below that default in section 106 referred only to default under the 1984 Act itself.
+However, the council, no doubt supported by others with like responsibilities, is understandably concerned as to the potential implications of this limitation for future cases.
+There seem to have been four main points leading to this conclusion: (i) the legislative history, (ii) other references to default in the 1984 Act, (iii) the wide scope of the factual inquiry implicit in the alternative approach, and (iv) various authorities under the predecessor statutes.
+None of these considerations in my view supports the conclusion.
+The first three points can be dealt with shortly.
+The legislative history tends if anything to support the opposite view.
+The use over more than 100 years of the same formula in statutes which, though covering the same general subject matter, included a varying range of powers, makes it unlikely that it was linked specifically to the particular provisions of each statute.
+Jackson LJ was forced to accept that the similar formula in the Public Health Acts 1875 (section 308) and 1936 (section 278) must be read as extending to default under related Acts, such as local Building Acts and Improvement Acts (paras 52, 55).
+I agree, but related is an imprecise term, not supported by anything in the wording of the section itself.
+Once that extension is accepted, it is difficult to understand why it should not extend to other forms of legal default.
+Secondly, the other references to default referred to by Jackson LJ do not assist.
+In section 77(2)(b), the default in question is specified by the section itself, that is failure to comply with the magistrate courts order.
+That throws no light on its meaning where it is not so limited.
+Section 78(7) is related directly to section 106 and poses the same issue as is now before us.
+Thirdly, the courts concern as to the wide ranging nature of the factual inquiry implied by the authoritys suggested approach is understandable, but it does not arise if the inquiry is limited in the way I have suggested above.
+As to the authorities, the only one referred to by the Court of Appeal was Hobbs v Winchester Corpn [1910] 2 KB 471, which related to the equivalent compensation provision in the 1875 Act (section 308).
+Meat had been seized under section 116 of the 1875 Act as unfit for human consumption.
+Although the butcher was acquitted of any offence under section 117 of that Act, on the grounds that he was unaware that it was unfit for consumption, it was found that he was nonetheless in default for the purpose of section 308, so that his claim for compensation failed.
+Since the only default relied on by the authority was default under the 1875 Act, that case throws no light on the nature of the default which might be relevant in other cases.
+Mr Bowdery relies also on Place v Rawtenstall Corpn (1916) 86 LJKB 90, under a provision in a local Act giving the authority a defence from civil liability for damage caused in exercise of their statutory powers in default of the owner or other person required to do such work, and in the absence of negligence: section 257 of the Rawtenstall Corporation Act 1907 (emphasis added).
+The authority had served notice under that Act requiring the claimant to convert a pail closet on his premises into a water closet and to connect it to a sewer.
+He failed to comply, and the authority carried out the work themselves, but did so by carrying out a larger project serving some other houses.
+In doing so, they used pipes larger than would have been needed by the claimant, thus causing subsidence to his property.
+It was held that the authority could not rely on his default to defeat his claim for damages.
+The judgment confirmed the essential principle that statutes interfering with common law rights should be strictly construed, and that it was for the authority to establish that the work which they have done is strictly work done in default of the owner.
+The problem for the authority was that the work was not limited to the work the owner would have done to carry out the work for his own house, but comprised much more.
+There was no finding that the damage was only caused by the work which Mr Place was required to do (pp 92 94 per Scrutton J).
+That seems to me a decision turning on its own particular facts, which throws no light on the meaning of the word default in the present context.
+I should also mention two authorities referred to in argument on the word default in the provisions relating to statutory nuisances under the 1875 and 1936 Acts.
+Clayton v Sale Urban District Council [1926] 1 KB 415 concerned action by the authority in respect of an alleged statutory nuisance caused by flooding.
+Under section 94 of the 1875 Act they could serve an abatement notice on the person by whose act default or sufferance the nuisance had arisen.
+The authority argued that the nuisance had arisen by the default of the owner, in failing to repair the bank.
+It was argued that there could not be default by the owner within the meaning of the section unless there had been a breach of an obligation arising independently of the section from an agreement or otherwise, and that he was not under any agreement or covenant or otherwise to construct or to repair the flood bank (pp 423 424).
+This argument was rejected.
+Lord Hewart CJ said: In my opinion the act, default, or sufferance referred to in section 94 of the Public Health Act 1875, is an act, default, or sufferance related to the nuisance which it is sought to abate, and default no less than sufferance within the meaning of that section can occur without the breach of an obligation arising from contractual agreement. (p 425) He referred to the common law duty of the owner of a vacant piece of land to prevent that land from being a public nuisance (citing Attorney General v Tod Heatley [1897] 1 Ch 560, 566).
+Contrary to Mr Bowderys submissions, that is to my mind clear authority at that level that the word default in a comparable context was not confined to default under the statute itself.
+Neath Rural District Council v Williams [1951] 1 KB 115 concerned the equivalent provision of the 1936 Act (section 93).
+A watercourse on the defendants land had become silted by natural causes and caused flooding.
+Section 259(1)(b), under which a watercourse in such a condition was a statutory nuisance, was subject to a proviso that no liability was imposed on any person other than the person by whose act or default the nuisance arises or continues.
+It was held that, absent any relevant legal duty on him under statute or at common law to take positive action to remove the nuisance, the defendant was not in default.
+In the words of the headnote: in the case of a natural stream a landowner had no duty at common law to keep the bed clear by removing obstructions which might arise from natural causes, and the proviso to (section 259(1)) was designed to prevent any additional duty from being cast on the landowner Lord Goddard CJ expressed some doubt about the actual decision in Clayton but felt able to distinguish it on the basis that it was concerned with the words act, default or sufferance whereas the proviso to section 259(1)(b) referred only to act or default (p 126).
+However, he did not doubt the proposition that default could arise from breach of a duty outside the Act itself.
+Ramsey J, at para 43, referred to a passage in the judgment of Lord Goddard CJ, who said: I do not think that in this case default could mean merely doing nothing, unless an obligation to do something were imposed by the Act.
+There was no act of the defendants which caused the obstruction either to arise or to continue In the present case, on the facts found by the justices, there is nothing to show that the defendants did anything which caused this obstruction to arise or to continue; nor do I think that there is anything which can properly be called a default on their part (pp 126 127, emphasis added).
+This passage cannot be taken as implying that only a duty under the 1936 Act itself was thought relevant.
+It must be read in the context of the judgment as a whole, in which the possibility of a common law duty had previously been discussed and dismissed (pp 120, 123).
+I conclude that there is nothing in the factors relied on in the courts below which requires the words in default to be limited to default under the 1984 Act.
+They were right in my view to hold that the authority had no defence in principle to the claim for compensation, not because (as they held) there was no default under the 1984 Act, but because it was not default by Stylus which led to the emergency action under section 78.
+It is important to emphasise that this conclusion does not limit in any way the issues which may be taken into account by the arbitrator in assessing compensation attributable to that action, including the statutory and common law responsibilities of Stylus to its clients and employees.
+As Jackson LJ indicated (para 95), it will be open to the authority to argue that the consequent loss of profit to the business must be substantially reduced due to the structural condition of the pier and the implications it would have had for the continuation of its business quite apart from the effects of the emergency notice.
+Mr Gasztowicz drew our attention to an earlier paragraph of Jackson LJ (para 79) which might suggest a more limited role for the arbitrator.
+Having agreed with the judge that the phrase in default means in breach of an obligation under the 1984 Act, he added: The provision does not require the court or the arbitrator to conduct a wide ranging review of other legislation and the common law in order to see whether the claimant is in breach of any duties arising outside the 1984 Act. (emphasis added) I do not fully understand the inclusion in that passage of a reference to the arbitrator, as well as the court.
+In so far as it implies a limitation on the scope of the arbitrators function it is inconsistent with the later paragraph to which I have referred, and which in my view expresses the correct position.
+For these reasons, albeit differing in some respects from those of the courts below, I would dismiss the appeal.
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+The flags protest, as it has become known, took place throughout Northern Ireland in late 2012 and early 2013.
+The series of demonstrations and marches that the protest involved presented the Police Service with enormous, almost impossible, difficulties.
+They strove to deal with those difficulties by using different policing techniques and strategies; responding to intelligence reports; considering representations made by community leaders; continuously re evaluating their decisions; and consulting interested parties who might contribute to the resolution of the problems caused by the protests.
+They also recorded the deliberations that they undertook and the consultations that they held within the Police Service.
+A great many police officers were deployed to police the demonstrations and marches.
+A considerable number of them sustained injuries.
+Assiduous detection of offenders and their prosecution continued throughout this unhappy time.
+There can be no reasonable suggestion, therefore, that the police failed to treat the control of parades and demonstrations with sufficient seriousness.
+They were obviously exercised at an early stage, and throughout the period when the parades and the disorder took place, to seek to control the marches and to minimise the disorder to which they gave rise.
+It is also clear that police were constantly concerned about the risk of greater disorder occurring with the consequent risk to life which might accrue if they tried to prevent the parades from taking place altogether, rather than policing and controlling them as best they could.
+This case is not about the sincerity and authenticity of the efforts made by police to control the parades.
+It is about their conception and understanding of the powers available to them to do so.
+The various managerial and strategic steps undertaken by the police and the tactical decisions made on foot of them reflect the standards required of and the demands made on a modern police force.
+It is also, of course, necessary for a police force in our society to have a proper understanding of the extent of the legal powers available to them in order to discharge their duties effectively and fairly in service of the community.
+The question whether the Police Service for Northern Ireland (PSNI) was sufficiently aware of the full range and scope of those powers is now the principal issue in this appeal.
+This was not always the position.
+Application for leave to apply for judicial review was first made on 31 January 2013.
+Its primary focus was on obtaining relief in relation to a planned parade on 2 February and challenging the failure of PSNI to give assurances that they would take action to prevent that parade from taking place.
+The statement served in support of the application under Order 53 of the Rules of the Court of Judicature of Northern Ireland (1980) did, however, contain the claim that the failure of PSNI to prevent the parade had the effect of undermining the Public Processions (Northern Ireland) Act 1998 and that it constituted a breach of their obligations under section 32 of the Police (Northern Ireland) Act 2000.
+As the case progressed and the reasons that the police had not taken action to stop various parades became clear, the emphasis has shifted to an attack on PSNIs failure to recognise and make use of legal powers available to it to prevent the parades from taking place.
+It is still argued that that failure has undermined the efficacy and proper functioning of the 1998 Act.
+It is also claimed that the operational decisions of the police have not been proportionate.
+But these latter arguments have featured somewhat less prominently in the appellants presentation of his appeal before this court.
+The application for judicial review had also sought orders against the Secretary of State for Northern Ireland for failing to exercise her powers under section 11 of the 1998 Act to prohibit the holding of the procession.
+That particular application was dismissed.
+There is no appeal from that dismissal and nothing more need be said about it.
+The historical setting
+For a number of years before 1998, considerable public disorder and community conflict were regular features of many contentious parades in Northern Ireland.
+Until the enactment of the 1998 Act, the police were responsible for deciding whether parades should be permitted to proceed.
+This placed them in a wholly invidious position.
+Their impartiality was questioned and they were accused of taking sides both in permitting some parades to proceed and banning others.
+It was against this background that a report was commissioned by the government into what should be done about the management and control of public processions in Northern Ireland.
+The chairman of the body which produced the report was Dr Peter North and the report has become known as the North report.
+Some details about the recommendations which the report contained are given at paras 45 49 below.
+The 1998 Act created a new public body, the Parades Commission.
+The commission was charged under section 8 with the function of controlling parades by means of conditions regulating their conduct, imposed on those who organised them.
+The commission did not have power to prohibit a procession.
+The Secretary of State did have such a power under section 11, on specific grounds, but it has never been exercised.
+A key part of the scheme of the 1998 Act was that control of parades would be achieved by conditions imposed by the commission.
+In order for that vital element to work, a statutory duty (section 6(1)) was placed on those proposing to organise a public procession to give advance notice of that proposal to a member of the police force.
+By section 6(7) it was made a criminal offence to organise or to take part in a public procession which had not been notified.
+It was also an offence to fail to comply with any conditions imposed.
+None of the flags parades in Belfast was notified to the commission.
+Under the general law the police have a duty to prevent the commission of offences.
+That fundamental duty of the police, inherent at common law, is expressly confirmed by section 32 of the 2000 Act.
+There was power, therefore, to prevent a parade from taking place on the grounds that it was likely to result in public order offences.
+But under the 1998 Act there was also power to prevent the commission of the offence of processing in an un notified parade.
+The complaint which is made of the police in the present case is that they were conscious of the first of those powers, but they did not properly appreciate the existence and significance of the second.
+The factual background
+Until 3 December 2012 the Union flag flew over Belfast City Hall throughout the year.
+On that date the City Council decided that the flag should fly on certain designated days only.
+That decision sparked a wave of protests throughout Northern Ireland which continued for some months.
+The present appeal is concerned with those protests which took place in Belfast and the policing operations that were undertaken to deal with them.
+After 3 December 2012, the protests in Belfast quickly took on a pattern.
+Every week, protesters marched from a meeting point in East Belfast to Belfast City Hall which is located in the centre of the city.
+That route took them through part of the city known as Short Strand.
+Most residents in the Short Strand area are perceived to be nationalist.
+Those taking part in the processions were loyalists.
+When the protesters who had processed from East Belfast assembled at the City Hall, they were joined by others who had found their way to the city centre by other means.
+Some at least of these others joined the protesters from East Belfast on the march back after the protest.
+Considerable numbers were involved in the parade which passed through the Short Strand on its return to East Belfast, therefore.
+There was substantial violence and disorder as the parade went through that nationalist area.
+Sectarian abuse was directed at the residents of Short Strand; stones and other objects were thrown at them; and their homes were attacked.
+The appellant is a resident in Short Strand and his and his neighbours homes have come under attack during the parades that took place during December 2012 and January 2013.
+On 4 December 2012 an initial decision was made that protesters should not be permitted to enter Belfast city centre on Saturday 8 December when, as police knew, a protest at the City Hall was planned.
+That decision had nothing to do with stopping a parade or march.
+It was taken because it was considered necessary to prevent disorder.
+It was felt that the normal life of the city centre should be maintained because of the number of families and other members of the public who would be gathered there at a peak retail period.
+The reputation of the city at a time when inward investment was being encouraged was also a consideration.
+In the period between 6 and 8 December police reflected on this decision.
+That reflection led to a change of mind.
+In an entry of 7 December 2012 in an Event Policy Book maintained by PSNI, the change in decision was explained.
+It was considered that there was a need to try and facilitate some form of protest at Belfast City Hall to allow for some venting of anger and [relief of] community tension on this issue.
+The parades therefore began on 8 December 2012 and, as earlier noted, quickly developed into a weekly pattern.
+They continued until March 2013.
+Social media alerted those who wished to participate of their timing and organisation.
+Until March 2013, police took no action to stop them.
+The affidavit evidence of Assistant Chief Constable Kerr
+Soon after it had begun, a police strategy to deal with the flags protest was devised.
+This was called Operation Dulcet and its leader, designated Gold Commander, was Assistant Chief Constable Will Kerr of PSNI.
+Chief Superintendent Alan McCrum was appointed Silver Commander.
+In a series of affidavits filed in these proceedings, Mr Kerr has described how the police developed and implemented plans to deal with the protest.
+In the first of these he suggested that police have no specific power to ban a procession under the relevant legislation.
+He stated that PSNI seeks to enforce conditions imposed by the Parades Commission or a prohibition order by the Secretary of State for Northern Ireland.
+Such an order may be made by the Secretary of State under article 5(1) of the Public Order (Northern Ireland) Order 1987 (SI 1987/463 (NI 7)) in respect of open air public meetings. Significantly.
+Mr Kerr stated that in the absence of either a Parades Commission determination or prohibition from the Secretary of State, PSNI can only have recourse to general public order policing powers.
+Having referred to a statement issued by the Parades Commission on 22 February 2013 (in which, among other things, the commission said that the event in East Belfast had not been notified).
+Mr Kerr made the following statements in paras 21 and 22 of his affidavit: 21.
+This being the case and there having been no determinations upon any of protests which have taken place close to the Short Strand area, the PSNI have had to police the situation in line with their powers outside of the statutory scheme contained in the [Public Processions (Northern Ireland) Act 1998]. 22.
+PSNI also have regard to our general functions as contained in Section 32 of the Police (NI) Act 2000 (the P(NI)A) wherein the general duties of the police are set out ie to protect life and property, to preserve order, to prevent the commission of offences and, where an offence has been committed, to take measures to bring the offender to justice.
+Human Rights considerations are included in decisions made in respect of public order issues such as have arisen during the flag protests.
+This includes but is not necessarily limited to article 2 Rights (Life) wherein public order disturbances can put this right at risk along with the article 8 Rights (Private Life) of persons in the community and the article 11 Rights (Assembly) of the protesters.
+The interaction between these competing rights and the status of article 8 and 11 rights as being qualified are all taken into account when operational decisions are being made.
+Later in the same affidavit Mr Kerr said that where a public procession is not notified under the Public Processions (Northern Ireland) Act 1998, those organising the parade committed an offence under the Act.
+Tellingly, however, he continued, The role of PSNI in such situations is to collect evidence of such offences and refer them to the prosecuting authorities while also employing public order and common law powers to keep the peace para 39.
+In a second affidavit, Mr Kerr said that PSNI had consistently held the view that parades can be stopped but not solely because they are unnotified.
+In February 2013, a change in police policy in relation to the flag protests and in particular the marches coming from and returning to East Belfast occurred.
+Mr Kerr explained how this came about in para 17 of his second affidavit: the CNR On the 14th of February, as part of the ongoing strategy review, several changes were adopted, one was in respect of the protests processing into the city centre and the other regarded the charging policy The considerations resulting in the decision to stop the unnotified parade included the fact that protests were continuing although with lower numbers, the views of [Catholic/Nationalist/Republican] community that the protests should be stopped, the wider attitude in the PUL [Protestant/Unionist/Loyalist] community that the protests had run their course and the likely reaction from Loyalists would not be extreme as had been the case in or around the 6th of December.
+In addition, the wish to have a break in time between the protests and the main marching season, the lack of any proper structure in the protests groups whereby an agreed cessation could be settled, the resource considerations in terms of our ability to manage and contain any problems associated with stopping the protests and the impact upon the residents of the Short Strand of the ongoing protests.
+It should also be noted that what he described as the article 2 risks weighed heavily with ACC Kerr in deciding to permit protestors in the city centre.
+In an affidavit he said: Between the 6th of December and the 8th of December, the decision not to permit flag protestors to move into the city centre was changed.
+The rationale for this change was that risks associated with doing so were too great.
+The intelligence at the time informed us that had we stopped the protests from going into the city centre that the risk to life posed by the resultant disorder and violence posed too great an article 2 risk.
+The Service Procedure and the Event Policy Book
+PSNI maintains a service procedure which gives guidance for dealing with public processions and protest meeting applications.
+It is also intended to provide advice on the interaction between the Parades Commission and PSNI.
+The service procedure was issued on 31 March 2008 and amended and reissued on 9 June 2011.
+An event is defined in the procedure as including any event or incident ranging from routine operational policing through to major disorder requiring a degree of planning.
+When an event has been notified or the police become aware of an intended event, a strategy meeting is held.
+At the first such meeting an Event Policy Book is opened.
+Strategic decisions concerning the way in which an event is policed should be recorded in this book.
+These include major decisions which have an impact on an established strategy; major tactical decisions; any change in strategy; and any issue or decision which may have legal consequences not already addressed in the strategy plan.
+Between 4 December 2012 and 30 April 2013, no fewer than 67 decisions were taken as to how the parades and the associated disorder would be policed.
+A record of each of the decisions taken and the reasons for them was made in the Event Policy Book.
+We were referred to several of these.
+It is not necessary to advert to more than a few of them.
+On 6 December 2012 Mr Kerr, in an email to police colleagues about the movement of groups of protesters from various parts of the city towards Belfast City Hall, referred to the rights and presumptions (sic) to peaceful protest, outlined in articles 9 to 11 of ECHR.
+He pointed out that these were not absolute rights and that the degree of disorder experienced during protests on earlier evenings justified preventing known groups of protesters (from either community) from entering Belfast city centre.
+This was cited as an example of Mr Kerrs appreciation that the police were entitled to stop unnotified processions or parades.
+It is plainly not that.
+To the contrary, the entire tenor of the email is directed towards the public order powers of the police to prevent disorder even where that takes place under the guise of the right to protest.
+The record of decision appearing in the Event Policy Book of the same date to the effect that a Gold Direction was issued to prevent large numbers of protesters moving towards the city centre prompts the same conclusion.
+It does not address the question of parades at all, much less the legal powers of police to stop them.
+A change to the Gold Strategy was introduced in January 2013.
+This had two aspects: more proactive engagement with protest groups so as to convey to them that blocking the road was against the law; and avoiding the public impression that police were doing nothing.
+Again, no reference was made to the circumstance that participating in an unnotified parade was a criminal offence and that, where such an event was reasonably apprehended, the police had powers to prevent it.
+In January 2013, representations were received by PSNI from local representatives of the Short Strand area in which it was suggested that police were facilitating illegal parades.
+As is clear from the record of decision in the Event Policy Book of 22 January 2013, instead of prompting PSNI to examine its legal powers to stop an unnotified parade, this led to a discussion between ACC Kerr and the Chief Constable that the appropriate means and mechanism to determine how the Public Processions (Northern Ireland) Act should be complied with was for PSNI and the Parades Commission to seek legal advice.
+It had been agreed between the chairman of the commission and Mr Kerr on 15 January 2013 that both sides should take advice.
+A letter from Chief Superintendent McCrum to the chairman of the commission on 19 January 2013 stated that un notified processions that had been occurring every Saturday were likely to continue and that the commission might wish to take legal advice as to whether it should be considering these in line with the Public Processions (Northern Ireland) Act 1998.
+This was followed up by a letter in much the same terms on 23 January.
+On 12 February 2013 Mr Kerr and another senior police officer met a member of the Legislative Assembly of Northern Ireland who expressed concern about police decisions to facilitate the weekly parade past Short Strand.
+The Event Policy Books record of this meeting is to the effect that there were policing challenges in dealing with these events, Human Rights Act considerations and gaps in the Public Procession legislation.
+On 13 February 2013, a record was made that Mr Kerr was considering whether judicial review proceedings should be brought on behalf of PSNI in order to obtain clarity on powers under the Public Processions Act.
+It was suggested that a judicial review application might act as a catalyst to have weak legislation reviewed and possibly amended.
+On 14 February 2013 the Events Policy Book recorded for the first time discussion of stopping the parade.
+Even then, there was no reference to police powers to stop a parade which, because it had not been notified, was illegal.
+Indeed, it referred to the absence of a legislative (regulatory) fix under the Public Processions (Northern Ireland) Act.
+ACC Kerrs press interview
+On 16 February 2013, a local paper, the Irish News, published a report of an interview which one of its journalists had had with Mr Kerr on 14 February.
+An incomplete transcript of the interview and handwritten notes made by PSNI staff are available.
+In the course of the interview, Mr Kerr is recorded as saying that a difficulty with the Public Processions Act was that it was predicated at least in part that everybody will consent to being regulated by that means [and] if some people decide that they dont want to be regulated by those means it leaves a gap and that gap at the minute is defaulting to policing and we dont find that acceptable.
+Later in the interview Mr Kerr said that there was no such thing as an illegal parade under the Public Processions Act, it doesnt exist.
+He also said that the police had no power to stop an illegal parade under the Public Processions Act, the offence is taking part in an un notified parade.
+On the contact between the police and the Parades Commission the Assistant Chief Constable said that they had written to the commission in the hope that it would take responsibility for dealing with the parade.
+The situation was legally complex and that police would welcome some judicial clarity on what exactly the Public Processions Act allowed people to do.
+The principal concern of the police was not to be placed in the position of having to decide whether a parade should be permitted to take place because they could only make the decision based on a risk or threat to life.
+The proceedings
+The application for judicial review generated a substantial number of affidavits.
+Apart from those of Assistant Chief Constable Kerr, the most significant of these relate to exchanges between police and a local Sinn Fein councillor, Niall ODonnghaile.
+His council area includes Short Strand.
+He wrote to Chief Superintendent McCrum on 8 January 2013 asking for information about notification of the parades.
+He also inquired about the action PSNI intended to take in the event that no notification had been given.
+In his response of 19 January Mr McCrum confirmed that no notification of the parades had been received.
+In relation to the action to be taken by PSNI, he said this: As regards the responsibility of PSNI to ensure that parades and protests which have previously resulted in disorder do not occur again, it is important to remember that PSNI do not authorise parades or protests.
+I am sure you will agree with me that it would be inappropriate in a democratic society for the police to determine when people can protest.
+However, it is important that the police take all feasible steps to maintain order and PSNI are committed to continuing to do so.
+Again, as in the affidavits of ACC Kerr, no reference was made to the fact that, by reason of the illegality of the parades under the 1998 Act, the police could resort to common law powers and the statutory duty arising under section 32 of the Police (Northern Ireland) Act 2000 to stop them from taking place.
+The emphasis was, as before, on the maintenance of order.
+In a careful and comprehensive judgment, [2014] NIQB 55, Treacy J reviewed the relevant provisions of the 1998 Act; he referred to section 32 of the Police (Northern Ireland) Act 2000 which provides, among other things, that it is the general duty of police to prevent the commission of crime; and he considered the powers of arrest at common law referred to in article 26 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (SI 1989/1341 (NI 12)) to prevent an imminent breach of the peace.
+The judge also painstakingly examined all the evidence in the case, and in much greater detail than I have considered necessary for the purposes of the appeal.
+He summarised the appellants submissions in a series of propositions.
+A simple paraphrase of those may be expressed thus: In failing to stop the weekly parades, PSNI had undermined the 1998 1.
+Act; 2.
+The police had been wrong to conclude that they did not have power to stop the parades; 3.
+ACC Kerr had misunderstood the qualified nature of article 11 of ECHR; 4.
+The attacks on the appellants home engaged his right under article 8 of ECHR.
+The state (in the form of its police force) had failed to discharge its positive obligation to protect him from unjustified interference with that right; 5.
+Operational decisions taken by PSNI were not immune from challenge on the basis that they were taken within an area of discretionary judgment since that had been wrongly informed by the belief that there was no power to stop the parades; and 6.
+Operational discretion does not, in any event, provide an automatic and blanket immunity H v Commissioner of Police for the Metropolis [2013] EWCA Civ 69; [2013] 1 WLR 3021.
+The circumstances of the present case were quite different from those of E v Chief Constable of the Royal Ulster Constabulary [2009] AC 536 where the appellant had to surmount the high hurdle of showing that there was a positive obligation to prevent article 3 ill treatment.
+Furthermore, unlike the position in the present case, there was a substantial body of evidence in E v Chief Constable of the Royal Ulster Constabulary that policing the operation in that case differently might have led to an extension of the protest to other locations and resulted in a risk to lives of other civilians.
+Treacy J concluded that, in the period between 8 December 2012 and January 2013, ACC Kerr did not consider the option of stopping the weekly parades.
+PSNI did not behave in a proactive manner to arrest and prosecute those who were organising and participating in the parades.
+When he did come to consider police action to stop them, Mr Kerr wrongly believed, the judge held, that he was inhibited from doing so by the 1998 Act.
+The police officer was labouring under a material misapprehension as to the proper scope of police powers and the legal context in which they were operating. para 127 of the judgment.
+The judge further found that no evidence had been presented to him as to why police had repeatedly permitted violent loyalist protesters to participate in illegal marches both to and from Belfast City Centre on every Saturday between 8 December and 14 February para 122 of his judgment.
+The judge found that a failure to notify the Parades Commission of an intended parade invests the police with powers to prevent it from taking place.
+These were equivalent to the powers available to police when parade organisers and participants arrange and take part in parades where conditions imposed by the Parades Commission had not been observed para 134 of his judgment.
+ACC Kerrs purported distinction between the two scenarios was unsustainable, the judge said.
+Whether a parade was unlawful by reason of breach of a Parades Commission determination or because of a decision to flout the notice requirement, should not have led to a different police response.
+In each case the expectation is that the police will seek to uphold the rule of law. para 135.
+The consequence of the polices failure to appreciate the extent of their powers to deal with the criminal offences of organising and participating in non notified parades had the effect, in the estimation of the judge, of undermining the 1998 Act; it had led to a failure on the part of the police to act in accordance with their obligations under section 32 of the Police (Northern Ireland) Act 2000 and it gave rise to a violation of the appellants article 8 rights para 137 of the judgment.
+The Court of Appeal (Sir Declan Morgan LCJ, Girvan LJ and Weir J [2014] NICA 56) allowed the Chief Constables appeal against the judgment of Treacy J.
+The Lord Chief Justice, delivering the judgment of the court, also carefully rehearsed the evidence about the various parades and the action taken by police in relation to them.
+He quoted from a letter of 31 January 2013 sent by PSNI to the appellants solicitors in response to their pre action protocol correspondence.
+In it the police had said: Professional policing decisions dealing with public order issues are extremely complicated and require the balancing of a wide range of competing interests.
+As recognised by the European Court of Human Rights in its decision on the admissibility in PF and EF v United Kingdom (23 November 2010) to require the police in Northern Ireland to forcibly end every violent protest would likely place a disproportionate burden on them, especially where such an approach could result in the escalation of violence across the province.
+In a highly charged community dispute, most courses of action will have inherent dangers and difficulties and it must be permissible for the police to take all of those dangers and difficulties into consideration before choosing the most appropriate response.
+At para 34 of the judgment the Lord Chief Justice said that the central issue in the case was whether the police response to the parades was based on the need to take account of the possibility of violence and disorder giving rise to article 2 risks both in the immediate vicinity and in the wider Northern Ireland community.
+For reasons that I will give presently, I do not consider that this was in fact the central issue in the appeal.
+Having taken this as the starting point, the judgment proceeded to examine the operational decisions taken by the police.
+This examination was conducted against the backdrop of the decision of the House of Lords in E v Chief Constable of the Royal Ulster Constabulary [2008] UKHL 66; [2009] AC 536 in which Lord Carswell, drawing on the judgment of the European Court of Human Rights in Osman v United Kingdom (1998) 29 EHRR 245, alluded to the many practical difficulties that confronted police in dealing with protests and making arrests in situations of riot or near riot.
+Having referred to Lord Carswells opinion on this question, the Lord Chief Justice stated that the same approach should be taken by the Court of Appeal in considering the police conduct in this case.
+It should also be borne in mind that section 32 of the 2000 Act did not impose a requirement to intervene on every occasion when a crime was being committed.
+The police had, he said, a wide area of discretionary judgment as to how they should respond para 41 of the judgment.
+In relation to Treacy Js conclusion that ACC Kerr had not addressed the question of whether to stop the weekly parade, the Lord Chief Justice said that strategy documents indicate that there was ongoing consideration of the manner in which this situation, which at that time extended throughout Northern Ireland, should be managed. para 46.
+Commenting on the judges view that ACC Kerr wrongly felt himself inhibited by the 1998 Act from taking action to stop the parades, the Lord Chief Justice suggested that this conclusion was based on two, essentially misconceived, considerations.
+The first was that Mr Kerr had said, when interviewed by the Irish News, that he had no power to stop an unnotified parade; the second was that the assistant chief constable had sought to encourage the Parades Commission to take action in relation to the parades para 49.
+Dealing with the first of these reasons, the Lord Chief Justice said (at para 47 of the judgment): The interview on which the article was based explored a number of aspects of the unnotified parades.
+ACC Kerr sought to promote the primacy of the Parades Commission in the regulation of all parades.
+He indicated that police did not want to find themselves in the situation they were in prior to the 1998 Act.
+It was against that background that he noted that police did not have power to stop an illegal parade under the 1998 Act.
+He was correct about that.
+Such power lay only with the Secretary of State.
+He noted that the offence under the Act was taking part in an unnotified parade.
+That again was correct.
+He went on to indicate that police were faced with having to make decisions about the appropriate response to such parades on the basis of a risk or threat to life.
+We do not consider that any criticism can be made of that.
+The difficulty with this passage is that it does not address the point that Treacy J had made.
+This was that, because ACC Kerr had not adverted to the provision in the 1998 Act which made it illegal to organise or participate in an unnotified parade (section 6(7)), and had failed to recognise that this provided police with the power (and, indeed, the duty under section 32 of the 2000 Act) to prevent this particular species of criminal activity, the option of stopping the parade for that reason was not considered.
+Contrary to what the Lord Chief Justice said, the police did have power to stop an unnotified parade precisely because participating in such a parade was a criminal offence.
+Police have common law powers to prevent crime, quite apart from their duty to do so under section 32.
+The Lord Chief Justice said, in para 48, that ACC Kerr had initially decided to prevent the parade coming into the centre of Belfast which itself was an indicator that he recognised his power to stop it.
+As pointed out in para 23 above, however, a proper understanding of what was said by Mr Kerr in his email of 6 December 2012 and the entry in the Event Policy Book of the same date, leads inevitably to the conclusion that the police were not exercised about the question of stopping a parade at all.
+Their concern was to prevent disorder in Belfast city centre and to stop protesters converging there.
+Discussions about the tactical approach did not take place in the context of an anticipated parade.
+On the second reason for the judges conclusion (the attempt by ACC Kerr to engage the Parades Commission to deal with the unnotified parades), the Lord Chief Justice said this at para 49: [Mr Kerr] hoped to persuade [the commission] that there was some mechanism by which they could become involved in the determination of the action to be taken in respect of such parades.
+That certainly was the intention of the North Committee.
+It is, however, agreed that there is no mechanism by which the Parades Commission can take decisions for unnotified parades.
+The management of such parades is the responsibility of the police on the basis of their general public order powers and their obligation to prevent crime including crimes under the 1998 Act.
+Again, this does not deal directly with the judges consideration of the issue.
+Treacy J had raised the question (in para 129 of his judgment) of Mr Kerr having suggested that the Parades Commission take responsibility when, given that the commission had no role because of the lack of notification about the parades, the only agency that had the legal authority to stop the parade was PSNI.
+The circumstance that it had been the intention of the North Committee that the Parades Commission should be involved in the regulation of non notified parades is not relevant to ACC Kerrs attempt to persuade the Parades Commission to do what legally it could not.
+Trying to get the commission to intervene betokened a failure on the part of Mr Kerr to understand that it was the police, not the commission, who had responsibility under the law to prevent the parades from taking place.
+In para 52 of the Court of Appeal judgment it is stated that that court had seen a transcript of the interview of ACC Kerr by the Irish News and that this was not available to Treacy J.
+In the same para it is also suggested that the Court of Appeal had been taken through the police strategy documents and the Events Policy Book in greater detail than had been opened to the trial judge.
+Ms Quinlivan QC, who appeared for the appellant, disputed both those statements.
+It is not possible to assess how detailed was the consideration before the judge of the various strategy documents etc.
+But it is abundantly clear (and not disputed by Mr McGleenan QC for the respondent) that the judge had seen the transcript of the interview.
+Indeed, he quoted from it in para 73 of his judgment.
+The Court of Appeal concluded that the 1998 Act had not been undermined by the decisions and actions of the police in relation to the parades.
+It also decided that the steps taken by the police to protect the article 8 rights of the appellant and other residents of Short Strand were proportionate.
+The North report
+In August 1996 the government commissioned an independent review of contentious parades and marches in Northern Ireland.
+As earlier noted, the body convened to conduct the review was chaired by Dr Peter North and its report, published in January 1997, has become known as the North report.
+The Public Processions (Northern Ireland) Act 1998 implemented the report, although not all of its recommendations found their way into the legislation.
+Before the 1998 Act police had responsibility for imposing conditions on public parades.
+Article 3(1) of the Public Order (Northern Ireland) Order 1987 required a person proposing to organise a public procession to give seven days written notice of that proposal to the police.
+Article 4 of the 1987 Order provided: (1) If a senior police officer, having regard to the time or place at which and the circumstances in which any public procession is being held or is intended to be held and to its route or proposed route, reasonably believes that it may result in serious public disorder, serious (a) damage to property or serious disruption to the life of the community; or (b) the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do, he may give directions imposing on the persons organising or taking part in the procession such conditions as appear to him necessary to prevent such disorder, damage, disruption or intimidation, including conditions as to the route of the procession or prohibiting it from entering any place specified in the directions.
+The North report concluded that a new independent body was required which would replace the police as the organisation to decide whether a parade would take place and, if so, under what conditions.
+The report was not solely concerned with the identity of the body that would take decisions about whether parades should be permitted to take place and under what conditions they ought to be allowed to proceed.
+Public order considerations, which were intrinsic to the operation of the police powers to control processions under the 1987 Order, were no longer to be the sole driver for determining whether and in what circumstances parades should be permitted to take place, although the report did recommend that the police should retain the power to intervene on public order grounds in the extreme circumstances of the determination of the Parades Commission being defied Chapter 12 para 12.124 of the report.
+Generally, however, the report considered that putting emphasis on the question whether a particular parade might cause disorder ran the risk of rewarding threats that such disorder would take place.
+New criteria were required which should include the need to have regard to the impact that a parade would have on relationships within the community.
+The North report envisaged that parades should come to the Parades Commissions attention in any one of three ways first on referral by the police; second on the initiative of the commission itself; and third as a result of public representation Chapter 12 paras 12.55 et seq.
+As it happened, however, the structure of the 1998 Act did not cater for the commission having power to make determinations in relation to processions unless the police had been notified of a parade and had sent a copy of the notice to the commission thereby triggering their powers.
+The Public Processions (Northern Ireland) Act 1998
+The Parades Commission was established by section 1 of the 1998 Act.
+Its functioning in relation to controlling public processions depends on receipt of a notification of an intention to hold a parade.
+Section 6(1) of the Act provides that a person proposing to organise a public procession shall give notice of that proposal to a member of the police force; within a stipulated period (section 6(2)); in a prescribed form (section 6(3)); and providing certain specified information (section 6(4)).
+By virtue of section 6(6) the Chief Constable is to ensure that the Parades Commission is provided with a copy of the notice immediately.
+Section 6(7) makes it an offence to organise or take part in a procession that has not been notified.
+It provides: (7) A person who organises or takes part in a public procession (a) section as to notice have not been satisfied; or in respect of which the requirements of this (b) which is held on a date, at a time or along a route which differs from the date, time or route specified in relation to it in the notice given under this section, shall be guilty of an offence.
+Section 8 gives the commission powers to impose on persons organising or taking part in a proposed public procession such conditions as it considers necessary.
+These may include conditions as to the route of the procession and prohibiting it from entering any place.
+Section 9 gives the Secretary of State power to review a determination by revoking or amending it.
+Section 11 empowers the Secretary of State to ban processions in certain circumstances.
+This provision has not been invoked during the life of the commission.
+Although article 4(1) of the 1987 Order was repealed by the 1998 Act, the recommendation that had been made in the North report that police should retain the power to intervene on public order grounds if the determination of the Parades Commission was defied, was not implemented.
+This does not mean, of course, that the police could not have recourse to common law powers to stop a parade in order to prevent disorder and to the duty under section 32 of the 2000 Act in order to avert the criminal offence of participating in an unnotified parade contrary to section 6(7) of the 1998 Act.
+The Court of Appeal in para 19 of its judgment (perhaps in contrast to its later statement in para 47 see para 41 above) acknowledged that these powers were available to PSNI but considered that the incomplete enactment of the North report created a particular difficulty for the police: The North Report recognised that under its proposals there would still remain that cohort of parades that were last minute or unforeseen.
+It considered that in those circumstances the parades should be controlled by police using their public order powers.
+The problem for police, which the circumstances in this case demonstrate, is that the partial implementation of the North Report has left a larger cohort of parades outside the Parades Commissions jurisdiction.
+In particular, the PSNI have to deal with unnotified parades using their available public order powers including the right of arrest in respect of the organisation or participation in such parades and the prevention of such unlawful parades in accordance with the duty under section 32 of the 2000 Act to prevent crime.
+It is not clear why this should be regarded as a particular problem, at least in terms of police operational decisions.
+When the correct legal position is understood, namely that the police have power to stop parades to prevent disorder and to pre empt breach of section 6(7) of the 1998 Act, the police strategy and tactics in exercising those powers would have been similar, if not identical, to those which they would deploy to prevent a parade from proceeding in a manner which did not comply with a determination of the Parades Commission.
+Neither situation called on the police to form a judgment as to whether a parade should take place.
+What was required of them in both instances was a decision as to whether the parade was taking place legally.
+If it was not, either because it did not comply with a determination of the commission or because it had not been notified, their powers were, to all intents and purposes, the same.
+And the operational decisions should not have been any different, or, at least, certainly not on account of the fact that each parade contravened the law in different ways or that the source of the power of the police to stop the parade arose from different sections of the 1998 Act.
+Article 11 of the European Convention on Human Rights
+Article 11 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) provides: 1.
+Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2.
+No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.
+This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
+ACC Kerr clearly regarded what he described as the interaction between articles 8 and 11 of ECHR as important see para 17 above.
+He also considered that it was significant that both were qualified rights.
+During his interview with the Irish News he had said: The European Convention makes it very clear that there is a right to peaceful assembly under article 11 of the European Convention and the reasons it gets slightly confusing sometimes is that the European Convention is explicitly clear the Police Service has a responsibility to facilitate peaceful protests even if it is technically unlawful and thats where it takes us in to the space of confusing rights.
+In Eva Molnar v Hungary (Application 10346/05) the European Court of Human Rights (ECtHR) considered a complaint that the applicants rights under article 11 had been infringed by police dispersing a peaceful demonstration in which she had participated merely because prior notification of the protest had not been given.
+At paras 34 38 ECtHR said this: 34.
+The Court observes that paragraph 2 of article 11 entitles States to impose lawful restrictions on the exercise of the right to freedom of assembly.
+The Court notes that restrictions on freedom of peaceful assembly in public places may serve the protection of the rights of others with a view to preventing disorder and maintaining the orderly circulation of traffic. 35.
+The Court reiterates that a prior notification requirement would not normally encroach upon the essence of that right.
+It is not contrary to the spirit of article 11 if, for reasons of public order and national security, a priori, a High Contracting Party requires that the holding of meetings be subject to authorisation (see Nurettin Aldemir v Turkey, nos 32124/02, 32126/02, 32129/02, 32132/02, 32133/02, 32137/02 and 32138/02 (joined), para 42, 18 December 2007). 36.
+However, in special circumstances when an immediate response might be justified, for example in relation to a political event, in the form of a spontaneous demonstration, to disperse the ensuing demonstration solely because of the absence of the requisite prior notice, without any illegal conduct by the participants, may amount to a disproportionate restriction on freedom of peaceful assembly (see Bukta, cited above, paras 35 and 36).
+It is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by article 11 of the Convention is not to be deprived of all substance (see Nurettin Aldemir, cited above, para 46). 37.
+Nevertheless, in the Courts view, the principle established in the case of Bukta cannot be extended to the point that the absence of prior notification can never be a legitimate basis for crowd dispersal.
+Prior notification serves not only the aim of reconciling, on the one hand, the right to assembly and, on the other hand, the rights and lawful interests (including the right of movement) of others, but also the prevention of disorder or crime.
+In order to balance these conflicting interests, the institution of preliminary administrative procedures is common practice in member states when a public demonstration is to be organised.
+In the Courts view, such requirements do not, as such, run counter to the principles embodied in article 11 of the Convention, as long as they do not represent a hidden obstacle to the freedom of peaceful assembly protected by the Convention (see Balcik v Turkey, no 25/02, para 49, 29 November 2007). 38.
+The Court therefore considers that the right to hold spontaneous demonstrations may override the obligation to give prior notification to public assemblies only in special circumstances, namely if an immediate response to a current event is warranted in the form of a demonstration.
+In particular, such derogation from the general rule may be justified if a delay would have rendered that response obsolete.
+ACC Kerrs belief that PSNI was obliged by article 11 of ECHR to facilitate peaceful protests even if they were technically illegal was therefore misplaced.
+ECtHR has made it clear that, in general, a requirement to notify an intention to hold a parade and a decision to disperse a parade or protest which has not been notified will not infringe article 11.
+There was no warrant for allowing article 11 considerations to determine how these parades should be policed.
+Ms Quinlivan submitted that the 1998 Act occupies the field for virtually all planned demonstrations in Northern Ireland.
+She also claimed that, in relation to protests such as involved in the parades here, the vital ingredient of spontaneity (which might absolve organisers of the need to notify) was missing.
+In both propositions she is clearly right.
+The 1998 Act is the considered response of Parliament to the intractable problem of parades in Northern Ireland.
+Fundamental to its successful operation is the requirement that there be notification of parades, especially those which are likely to be contentious or to provoke disorder.
+The parades in this case were far from peaceful.
+The police had no obligation to facilitate them.
+To the contrary, they had an inescapable duty to prevent, where possible, what were plainly illegal parades from taking place and to protect those whose rights under article 8 of ECHR were in peril of being infringed.
+Meeting those obligations had to be tempered by operational constraints, of course.
+Stopping the parades without taking account of what further violence that might provoke was not an option.
+But the operational difficulties required to be assessed in the correct legal context.
+PSNI had to have a clear sighted appreciation of their available powers and an equally percipient understanding of the fact that the Parades Commission had no power to intervene.
+I shall discuss this in more detail in the next section of this judgment.
+Undermining the 1998 Act
+Failure to notify a proposed parade strikes at the heart of the effective functioning of the Parades Commission and therefore at the successful implementation of the 1998 Act.
+This Act represented, as Ms Quinlivan put it, a paradigm shift away from the old system where police were drawn into the controversial role of deciding which parades should be permitted to take place and under what conditions they should be allowed to proceed.
+Enforcing the legal requirement of notifying an intention to hold a parade was not less than vital to the success of the new venture.
+A premium had to be placed on preserving the integrity of that requirement.
+Unfortunately, ACC Kerr and his colleagues failed to recognise this central truth.
+There is no reference to section 6(7) of the 1998 Act in the many entries in the Event Policy Book.
+Instead, the focus was on the need to recognise the competing claims under articles 8 and 11 of ECHR; the so called gaps in the 1998 legislation; the need to engage the Parades Commission in some role in controlling the parades; the lack of power on the part of the police to ban parades; the need to police the situation outside of the statutory scheme; that the role of the police was to collect evidence of such offences and refer them to the prosecuting authorities; that the parades could not be stopped solely because they were unnotified; that there was no such thing as an illegal parade under the Public Processions Act; and that the situation was legally complicated and judicial clarification was needed.
+The situation was not legally complicated, although, in fairness to ACC Kerr this is a judgment that can be made in confidence now, with the benefit of close attention to the text and effect of the 1998 Act.
+But, having had the opportunity to consider these and the powers of the police both at common law and under section 32 of the 2000 Act, it can be assuredly said that there is no reason to suppose that the avowed gaps in the 1998 Act were other than the product of deliberate legislative intention.
+Likewise it must now be clearly understood that the Parades Commission had no role where a proposed procession had not been notified.
+The attempt to persuade the commission to become involved was misconceived.
+The police did not have power to ban the parades but they had ample legal power to stop them.
+Contrary to ACC Kerrs stated position, they could indeed be stopped solely because they were unnotified.
+There certainly was such a thing as an illegal parade under the Public Processions Act.
+All of that is quite different from saying that police decisions undermined the 1998 Act, however.
+Clearly, there was no considered intention to weaken the effect of the Act.
+The view of ACC Kerr and his colleagues on what were perceived to be shortcomings of the Act and their lack of powers to stop the parades were the result of misapprehension of the true legal position rather than a wilful disregard for it.
+It is true, of course, that the Loyal Orange Order, in light of PSNIs response to the unnotified parades, considered adopting a policy of not notifying the commission of intended parades, contrary to their previous practice of doing so.
+But that does not signify in the debate as to whether the 1998 Act was in fact undermined.
+As it happens such a policy was not adopted by the Orange Order.
+The power of the police to stop a parade which has not been notified has been a consistent thread that runs through the judgments of Treacy J, of the Court of Appeal and of this court, although the emphasis on the importance of this may have varied.
+Whatever may have been the misapprehension of the police as to their powers to stop a parade which had not been notified, the legal position is now clear.
+The 1998 Act has not been undermined.
+The central issue
+The Lord Chief Justice considered that the central issue in the case was whether the police response to the parades was based on the need to take account of the possibility of violence and disorder giving rise to article 2 risks both in the immediate vicinity and in the wider Northern Ireland community.
+One can understand why this might have been considered to be the dominant question.
+But it is now clear that the crucial issue was whether there was a proper understanding on the part of the police as to the extent of their legal powers.
+Of course, there were many pressing concerns about the possibility of increased violence if the police attempted to stop the parades.
+But this must not distract from what was the true issue in the case.
+That was did the police approach the difficult decision of whether to stop the parades with a proper understanding of their legal powers.
+If they wrongly considered that there were limits on their powers to do so, this would inevitably cloud their judgment on that critical question.
+For the reasons that I have given, I consider that Treacy J was right in his conclusion that the police laboured under a misapprehension as to the extent of their powers and on that account alone the appeal must be allowed.
+Operational discretion
+It is universally agreed that PSNI must have operational discretion to make policing decisions.
+Treacy J accepted this in para 120, after citing the well known passage from para 116 of ECtHRs judgment in Osman v United Kingdom (1998) 29 EHRR 245.
+The Court of Appeal dealt with the same issue in paras 38 41 of its judgment.
+It is also generally accepted, however, that operational discretion does not equate to immunity from judicial scrutiny of policing decisions.
+As Lord Dyson MR said in H v Commissioner of Police of the Metropolis v ZH [2013] 1 WLR 3021 at para 90: operational discretion is important to the police.
+It has been recognised by the European court: see [(2012)] Austin v United Kingdom 55 EHRR 359, para 56.
+And I have kept it well in mind in writing this judgment.
+But operational discretion is not sacrosanct.
+It cannot be invoked by the police in order to give them immunity from liability for everything that they do.
+The debate in the present case has centred on how judicial scrutiny of the policing decisions taken about these parades should be conducted.
+The appellant suggested that the discretion was circumscribed by the imperative of ensuring the full effectiveness of the 1998 Act.
+The area of discretion available to the police was also constrained by the positive obligation to protect the appellants article 8 rights, Ms Quinlivan argued.
+She claimed that policing decisions in this context had to satisfy a requirement of proportionality.
+In advancing this claim she relied on what had been said by Lord Carswell in E v Chief Constable of the Royal Ulster Constabulary [2009] AC 536.
+That case was concerned with attempts by loyalist protesters in Belfast to prevent Catholic parents from taking their normal route on foot through a loyalist area to a Catholic girls primary school.
+The appellant had challenged what she claimed was the failure of police to discharge their positive obligation to protect her and her daughter against the infliction upon them of inhuman and degrading treatment within the meaning of article 3 of ECHR.
+Having considered R (Daly)v Secretary of State for the Home Department [2001] 2 AC 532, Huang v Secretary of State for the Home Department [2007] 2 AC 167 and R (SB)v Governors of Denbigh High School [2007] 1 AC 100, Lord Carswell said this at para 54: [these cases] all concerned the compatibility of decisions of an administrative character with the Convention rights of those affected by them.
+Nevertheless, the essential point established by them is that the Smith test [see R v Ministry of Defence, Ex p Smith [1996] QB 517, 554] is insufficiently intense and that the actions of the police in the present case have to pass the test of proportionality, which must be decided by the court.
+Ms Quinlivan criticised the judgment of the Court of Appeal in the present case on the basis that it had failed to consider whether the actions of the police passed the test of proportionality.
+It is true that the court did not refer to the question whether the police actions were proportionate but it appears to have accepted that the appellants article 8 rights were engaged and the Lord Chief Justice referred on more than one occasion to Lord Carswells judgment in E so it is difficult to conclude that he did not have the question of proportionality in mind.
+Whatever of that, it seems to me that there is something of an air of unreality about discussing the question of proportionality given that PSNI had wrongly construed their powers under the 1998 Act and the Court of Appeal failed to so find.
+Like so much else involved in judicial review of police actions, proportionality depends on context and PSNI had set themselves the wrong context in which to make decisions.
+Ms Quinlivan was therefore inclined to accept that a finding that the police had failed to recognise the true breadth and nature of their powers under the legislation would render discussion of the discretionary area of judgment less than central to the case.
+She was right to do so.
+What might be considered proportionate if the police view of the limits on their powers was correct might be considered not to be so if they had recognised the full panoply of controls that were in fact available.
+Discussion of what might have been proportionate in those circumstances is unlikely to be helpful.
+So too is speculation about what the police ought to have done if they had a proper understanding of the powers available to them.
+One can say that proportionality has certainly a role to play in assessing whether police actions have fulfilled their positive obligation to protect the appellants article 8 rights.
+One may also say that police took an active and continuing approach to the question of how to deal with the parades.
+Many officers were injured in the course of policing the flags protest.
+Many participants were arrested and successfully prosecuted.
+Constant review of the proper tactical approach was undertaken.
+A definite area of discretionary judgment must be allowed the police.
+And a judgment on what is proportionate should not be informed by hindsight.
+Difficulties in making policing decisions should not be underestimated, especially since these frequently require to be made in fraught circumstances.
+Beyond these generalities, I do not consider it useful to go.
+Treacy J has said (in para 136) that the policing operation was characterised by an unjustified enforcement inertia.
+I do not understand him to suggest that this was the result of studied indifference or deliberate lack of response to the very difficult situation faced by the residents of Short Strand.
+The absence of a more proactive approach was due to a concatenation of unfortunate circumstances.
+These included the misunderstanding by PSNI of the powers available to them; their failure (at least in the early stages) to appreciate that the Parades Commission was powerless to intervene; a lack of insight into the central importance of ensuring that unnotified parades were not permitted to take place; the placing of too great an emphasis on the possible article 11 rights of protesters; and that the matter of controlling unnotified parades was legally complicated.
+Review by an appellate court of findings at first instance
+On several occasions in the recent past this court has had to address the issue of the proper approach to be taken by an appellate court to its review of findings made by a judge at first instance.
+For the purposes of this case, perhaps the most useful distillation of the applicable principles is to be found in the judgment of Lord Reed in the case of McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477.
+In para 1 of his judgment he referred to what he described as what may be the most frequently cited of all judicial dicta in the Scottish courts the speech of Lord Thankerton in Thomas v Thomas [1947] AC 484 which sets out the circumstances in which an appeal court should refrain from or consider itself enabled to depart from the trial judges conclusions.
+Lord Reeds discourse on this subject continued with references to decisions of Lord Shaw of Dunfermline in Clarke v Edinburgh & District Tramways Co Ltd 1919 SC (HL) 35, 36 37, where he said that an appellate court should intervene only it is satisfied that the judge was plainly wrong; that of Lord Greene MR in Yuill v Yuill [1945] P 15, 19, and that of Lord Hope of Craighead in Thomson v Kvaerner Govan Ltd [2003] UKHL 45; 2004 SC (HL) 1, para 17 where he stated that: It can, of course, only be on the rarest occasions, and in circumstances where the appellate court is convinced by the plainest of considerations, that it would be justified in finding that the trial judge had formed a wrong opinion.
+Lord Reed then addressed foreign jurisprudence on the topic in paras 3 and 4 of his judgment as follows: 3.
+The reasons justifying that approach are not limited to the fact, emphasised in Clarkes case and Thomas v Thomas, that the trial judge is in a privileged position to assess the credibility of witnesses evidence.
+Other relevant considerations were explained by the United States Supreme Court in Anderson v City of Bessemer (1985) 470 US 564, 574 575: The rationale for deference to the original finder of fact is not limited to the superiority of the trial judges position to make determinations of credibility.
+The trial judges major role is the determination of fact, and with experience in fulfilling that role comes expertise.
+Duplication of the trial judges efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources.
+In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one; requiring them to persuade three more judges at the appellate level is requiring too much.
+As the court has stated in a different context, the trial on the merits should be the main event rather than a tryout on the road.
+For these reasons, review of factual findings under the clearly erroneous standard with its deference to the trier of fact is the rule, not the exception.
+Similar observations were made by Lord Wilson JSC in In re B (A Child) [2013] 1 WLR 1911, para 53. 4.
+Furthermore, as was stated in observations adopted by the majority of the Canadian Supreme Court in Housen v Nikolaisen [2002] 2 SCR 235, para 14: The trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence.
+The insight gained by the trial judge who has lived with the case for several days, weeks or even months may be far deeper than that of the Court of Appeal whose view of the case is much more limited and narrow, often being shaped and distorted by the various orders or rulings being challenged.
+The statements in all of these cases and, of course, in McGraddie itself were made in relation to trials where oral evidence had been given.
+On one view, the situation is different where factual findings and the inferences drawn from them are made on the basis of affidavit evidence and consideration of contemporaneous documents.
+But the vivid expression in Anderson that the first instance trial should be seen as the main event rather than a tryout on the road has resonance even for a case which does not involve oral testimony.
+A first instance judgment provides a template on which criticisms are focused and the assessment of factual issues by an appellate court can be a very different exercise in the appeal setting than during the trial.
+Impressions formed by a judge approaching the matter for the first time may be more reliable than a concentration on the inevitable attack on the validity of conclusions that he or she has reached which is a feature of an appeal founded on a challenge to factual findings.
+The case for reticence on the part of the appellate court, while perhaps not as strong in a case where no oral evidence has been given, remains cogent.
+In the present appeal, I consider that the Court of Appeal should have evinced a greater reluctance in reversing the judges findings than they appear to have done.
+Conclusion
+I would reverse the decision of the Court of Appeal and make a declaration that, in their handling of the flags protest in Belfast during the months of December and January, PSNI misconstrued their legal powers to stop parades passing through or adjacent to the Short Strand area.
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+This appeal arises out of the payment of value added tax which was not due, because the supplies in question were exempt from VAT under the relevant EU directive.
+At the time of the payment, however, the supplies were treated as taxable by the UKs VAT legislation, which had incorrectly transposed the directive, and were mistakenly believed to be taxable by the customer who paid an amount charged in respect of the tax, the supplier who received that amount, and the Commissioners to whom the supplier accounted for the tax.
+As the corollary of the supplies being believed to be taxable, the supplier and the Commissioners also believed that the supplier was entitled to deduct from the tax chargeable on its supplies to customers the tax which it had itself paid on taxable supplies received for the purposes of its business.
+It therefore accounted to the Commissioners for the tax chargeable on its supplies during each accounting period on the basis that it could deduct and retain the amount of the tax which it had paid to its own suppliers, and it paid the Commissioners only the remaining surplus, if any.
+In that situation, does the customer have a common law claim against the Commissioners for restitution, or is he confined to a claim against the supplier? If he has a claim against the Commissioners, is it for the entire amount which he paid to the supplier, or only for the amount, if any, which the Commissioners received from the supplier? Does it make a difference if any claim for restitution by the supplier against the Commissioners is time barred? Does it make a difference if there is a statutory scheme under which the customer can obtain reimbursement of the amount which the supplier paid to the Commissioners, but not of any amount which was retained by the supplier? Furthermore, if the statutory scheme has the effect of excluding a common law claim by the customer against the Commissioners, is that compatible with EU law? These are the principal issues which the court has to decide.
+The factual background
+The claimants are investment trust companies (ITCs).
+They are closed ended investment funds constituted as limited companies: that is to say, the companies were established with a fixed number of issued shares and a term date when the company would be wound up and the assets distributed to the shareholders.
+They have now reached their term dates and are in winding up.
+The claims of three of the ITCs (the Lead Claimants) have been taken forward as lead claims while the others are stayed to await the outcome of these proceedings.
+The Lead Claimants are Kleinwort Overseas Investment Trust plc, F&C Income Growth Investment Trust plc, and M&G Recovery Investment Trust plc.
+They will be referred to respectively as the Kleinwort Trust, the F&C Trust and the M&G Trust.
+Between 1992 and 2002 the Lead Claimants received supplies of investment management services from their investment managers (the Managers).
+Those were respectively Kleinwort Benson Investment Management Ltd, F&C Asset Management Ltd and M&G Investment Management Ltd. Their services were rendered under contracts which provided for the Managers to be paid fees plus VAT if applicable (or words to similar effect).
+Under the provisions of the UK VAT legislation then in force, those services, unlike the other investment management services provided by the Managers, did not qualify for exemption.
+The Managers therefore charged VAT on the supplies of their services.
+The VAT charges were separately identified on the VAT invoices issued to the Lead Claimants, and the Lead Claimants paid the amounts charged.
+The Managers were obliged to account to the Commissioners for the VAT due in respect of their chargeable supplies during each accounting period.
+It is relevant to note that the obligation to account for tax arises whether or not tax is charged on the supply or paid by the customer: it is the supplier, rather than the customer, who is under a liability to the Commissioners, and it is the supply, rather than payment by the customer, which triggers the suppliers liability.
+The customers liability to pay an amount in respect of the tax rests upon contract.
+The Managers obligation to account for the tax due did not, however, mean that they were obliged to pay the Commissioners the whole of, or indeed any part of, the sums they received from the Lead Claimants.
+Under general principles of VAT law, they were entitled to deduct from the tax chargeable in respect of any taxable supplies they had made, known as output tax, the tax chargeable in respect of any taxable supplies which they had received for the purpose of their business of making taxable supplies, known as input tax.
+It therefore followed from the legislative treatment of the services supplied to the Lead Claimants as taxable, that the Managers were understood to be entitled to pay to the Commissioners only the surplus of their output tax over their input tax, and to retain the balance of the output tax in their own hands.
+If the input tax exceeded the output tax, they were entitled to a credit, which could be paid by the Commissioners or carried forward to later accounting periods.
+Thus, for example, if a Manager made taxable supplies to an ITC, and the VAT chargeable on those supplies was 100, then the Manager was bound to account to the Commissioners for 100.
+If the Manager had purchased taxable supplies during the relevant period on which the VAT was 25, the Manager was entitled to credit for that 25, and was required to pay the Commissioners only the balance of 75.
+It was also possible for an ITC to be registered for VAT (if it invested in securities outside the EU), and in that event to recover, as input tax, some of the VAT which it had paid to its Manager.
+The F&C Trust and the M&G Trust made no such supplies, but the Kleinwort Trust did, and recovered 58.4% of the VAT charged by its Manager (that being the percentage of its portfolio which was invested outside the EU).
+Its claim against the Commissioners has therefore been adjusted to take account of the sums which it has already recovered as input tax: rather than claiming every 100 which it paid to its Manager in respect of VAT, it claims 41.60, being the difference between the 100 and the 58.40 which it recovered as input tax.
+The essential pattern was therefore as follows: 1.
+The Managers supplied investment management services to the Lead Claimants under contracts providing for the payment of fees plus VAT if applicable. 2.
+The Managers charged the Lead Claimants VAT on the supply of those services, and included the VAT charges on the invoices which they issued to the Lead Claimants. 3.
+The Lead Claimants paid the invoices.
+They might or might not be able to recover some of the VAT as input tax. 4.
+The Managers made periodic VAT returns in which they: accounted for the VAT chargeable on their supplies of (i) investment management services as output tax; (ii) deducted as input tax the VAT which they had paid to third parties for supplies received in the course of their business; and (iii) paid the difference between their output tax and input tax to the Commissioners.
+It transpired that the supplies of the investment management services were exempt from VAT under article 13B(d)(6) of the Sixth VAT Directive (77/388/EEC).
+That was established by the European Court of Justice in JP Morgan Fleming Claverhouse Investment Trust plc v Revenue and Customs Comrs (Case C 363/05) [2007] ECR 1 5517.
+Although the UK failed to transpose article 13B(d)(6) correctly into national legislation until 1 October 2008, it had direct effect at all material times.
+It is therefore common ground between the parties that the Lead Claimants paid the Managers the amounts they did in respect of VAT, and that the Managers accounted for VAT to the Commissioners, under a mistake of law.
+The Managers claims against the Commissioners
+In early 2004, when the Claverhouse litigation began and was publicised, the Managers of the F&C Trust and the M&G Trust made claims to the Commissioners under section 80 of the Value Added Tax Act 1994 for refunds in respect of VAT accounting periods from 2001 to 2004.
+It will be necessary to return to section 80, the material provisions of which are set out in para 75 below.
+Claims were not made in relation to earlier accounting periods because of the three year limitation period imposed by section 80(4).
+For the same reason, no claim was made by the Managers of the Kleinwort Trust, which had gone into winding up in 1998.
+Following the Claverhouse judgment, the Commissioners allowed the claims and repaid the relevant amounts (as will be explained shortly) to the Managers, with interest.
+In accordance with section 80, and regulations made pursuant to section 80A, the Commissioners required the Managers to enter into approved reimbursement arrangements with the Lead Claimants, so that the refunded VAT and interest were passed on by the Managers to them.
+Subsequently, the decision of the House of Lords in Fleming (trading as Bodycraft) v Revenue and Customs Comrs [2008] UKHL 2; [2008] 1 WLR 195 established that the retrospective manner in which the three year limitation period had been introduced (by an amendment to the 1994 Act, effected by the Finance Act 1997, which reduced the previous period) was incompatible with EU law, and that the time bar had to be disapplied in respect of rights which had accrued before it came into effect on 4 December 1996.
+The Managers then made further claims in respect of accounting periods ending before that date.
+These claims were again allowed, with interest, and the appropriate repayments were made to the Managers, who in turn passed them on to the Lead Claimants.
+As a result of these arrangements, the Lead Claimants were refunded the VAT which they had paid to the Managers, subject to two exceptions.
+First, the Managers were unable to make claims in respect of accounting periods ending on or after 4 December 1996 which were time barred under section 80(4).
+In practice, that meant that claims could not be made by the Managers of the Kleinwort Trust in relation to accounting periods ending between 4 December 1996 and 20 March 1998, when the Kleinwort Trust went into liquidation.
+The corresponding periods in relation to the F&C Trust and the M&G Trust ended on 6 and 1 April 2001 respectively.
+Those periods have been referred to in these proceedings as the dead periods.
+It is common ground that the limitation period in section 80(4) is compatible with EU law.
+Secondly, the amounts repaid to the Managers were calculated on the basis that, under section 80(2A), it was necessary to set against the output tax for which they had accounted, the amount of the input tax which they had deducted.
+It is a matter of agreement that that was the correct approach to the application of section 80.
+In the illustrative example given in para 6 above, that means that the Managers were entitled to repayment of the 75 which they had paid to the Commissioners, but not of the 25 which they had retained in their own hands.
+It is a matter of agreement that, although the Managers were only entitled under section 80 to reimbursement of the notional 75, the Commissioners could have made the refunds conditional on the Managers undertaking to repay to the Lead Claimants the full amount which they had been mistakenly charged (ie, the notional 100).
+It is agreed that the Commissioners did not do so because they accepted the Managers assertion that, if they had known that the input tax was non deductible, they would have passed on that cost to the Lead Claimants by charging a higher price for their services.
+In the present proceedings, however, it is accepted that that assertion was erroneous: had the true position been known, the Managers would not have sought to increase the price of their services to the Lead Claimants.
+Instead, as Henderson J found after trial, they would have absorbed the input tax as a business expense.
+In the event, the notional 25 was later refunded to the Kleinwort Trust and the F&C Trust by their respective Managers, but it was not refunded to the M&G Trust.
+The proceedings below
+The ITCs brought proceedings against the Commissioners in which they sought payment of the amounts which had been paid by them to their managers, to the extent that they had not been recovered under the statutory scheme established by section 80 or otherwise: in other words, the amounts which the managers could not claim because any claim would be time barred, and the amounts which the managers had not paid to the Commissioners but had retained and set against input tax (unless those amounts had been refunded to the ITC in question by its manager).
+The ITCs claims were based on unjust enrichment, or alternatively on EU law.
+The claims of the Lead Claimants proceeded to a trial on liability.
+After trial, the judge held [2012] EWHC 458 (Ch): 1.
+That, using the notional figures referred to above, the Commissioners had been enriched in the full amount of 100, even if only 75 was paid to them by a Manager after deducting 25 in respect of input tax paid to its own suppliers.
+In the judges view, although the 25 was not paid to the Commissioners, it was nevertheless used by the Commissioners to give the Managers a credit for that input tax. 2.
+That the Commissioners were enriched at the expense of the Lead Claimants because, in economic terms, the person at whose expense the VAT was paid was the customer.
+The enrichment was also unjust. 3.
+That a cause of action in unjust enrichment was, however, excluded under domestic law by section 80(7) of the 1994 Act, which protects the Commissioners from liability other than as provided in that section. 4.
+That the Lead Claimants had a directly effective right to repayment against the Commissioners under EU law, which required a remedy to be made available in respect of the full notional 100, not merely the 75. 5.
+That EU law did not, on the other hand, require national law to give the Lead Claimants any remedy in respect of amounts falling within the scope of the time bar imposed by section 80(4).
+Any EU based claims would be subject (in effect) to the same limitation period.
+In a subsequent judgment [2013] EWHC 665 (Ch), which had been deferred pending the decision of this court in Test Claimants in the FII Group Litigation v Revenue and Customs Comrs [2012] UKSC 19; [2012] 2 AC 337, and the judgment of the Court of Justice in Littlewoods Retail Ltd v Revenue and Customs Comrs (Case C 591/10) [2012] STC 1714, the judge further held that the Lead Claimants had no Woolwich claim under English law for unlawfully levied tax (ie a claim based on the principle established in Woolwich Equitable Building Society v Inland Revenue Comrs [1993] AC 70), and that EU law required section 80(7) to be disapplied, so as to permit a mistake based restitutionary claim.
+It is unnecessary to consider the Woolwich issue further, as the point has not been pursued in the present appeal.
+In the light of these conclusions, the judge gave judgment for the M&G Trust in respect of the notional 25 (defined as the difference between the amounts paid by the M&G Trust to its Manager as VAT and the amount of the refunds it received from its Manager, and also as equalling the input tax brought into account by its Manager) for periods outside the dead period, and dismissed the claims in relation to the dead periods (the dead period in relation to each claimant being the period for which its Manager was unable, for reasons of limitation, to make a claim under section 80).
+The Lead Claimants appealed against the first judgment on the grounds that the judge was wrong to conclude (i) that a cause of action in unjust enrichment against the Commissioners was excluded by section 80(7) of the 1994 Act, and (ii) that the Lead Claimants had no claim under EU law to VAT paid in respect of the dead periods.
+The Commissioners also appealed against the first judgment on the ground that the judge was wrong to conclude that the M&G Trust had a directly effective EU law right to recover from the Commissioners the 25 element of its claim for accounting periods outside the dead period, and they appealed against the second judgment on the ground that the judge had erred in holding that section 80(7) was to be disapplied.
+The Court of Appeal (Moore Bick, Patten and Beatson LJJ) [2015] EWCA Civ 82 allowed both parties appeals.
+It held: 1.
+That the judge had been right to conclude that the Lead Claimants had a direct cause of action in unjust enrichment against the Commissioners for VAT paid under a mistake of law. 2.
+That he had been wrong to treat this cause of action as excluded by section 80(7). 3.
+That he had been wrong to conclude that the notional 25 retained by the Managers represented the discharge of any subsisting obligation to refund that amount on the part of the Commissioners, and that, accordingly, the Commissioners could not have been enriched by more than the notional 75 for any of the accounting periods in question.
+Any domestic claim in unjust enrichment for the notional 25 lay against the Managers alone. 4.
+That the Lead Claimants had no direct claim against the Commissioners for the notional 25 under EU law, given the claim they had in that amount against the Managers.
+The Court of Appeal therefore allowed the Lead Claimants appeal, to the extent of the notional 75 paid in respect of dead periods, and allowed the Commissioners appeal in respect of the notional 25.
+In this appeal by the Commissioners against the decision of the Court of Appeal (in respect of the notional 75 paid in respect of dead periods), and cross appeal by the Lead Claimants (in respect of the notional 25), there are three key questions.
+First, did the Lead Claimants have a common law claim against the Commissioners in principle, subject to any statutory exclusion of such a claim? Secondly, if so, did section 80 of the 1994 Act bar such a claim? Thirdly, if the Lead Claimants have no claim against the Commissioners, either because no such claim is recognised at common law or because a common law claim is barred by section 80, is that compatible with EU law?
+The common law claim
+The Lead Claimants argue that customers who pay undue VAT charged by their supplier have a claim against the Commissioners based on unjust enrichment, unless such a claim is excluded by statute.
+The first question is whether that is correct.
+If not, that in itself provides an answer to the claims made in these proceedings, subject to any issue arising under EU law.
+In answering the question, both parties followed the approach adopted by Lord Steyn in Banque Financire de la Cit v Parc (Battersea) Ltd [1999] 1 AC 221, 227, and asked: (a) Has the defendant been benefited, in the sense of being enriched? (b) Was the enrichment at the claimants expense? (c) Was the enrichment unjust? (d) Are there any defences? Were the Commissioners enriched?
+There is no dispute that the Commissioners were enriched to the extent of the notional 75.
+What is in dispute is whether they were also enriched to the extent of the notional 25 which they did not receive.
+The judge held that they were.
+Although the 25 was not paid to the Commissioners by the Managers, it enriched the Commissioners, in his view, by being set against the input tax which the Commissioners would otherwise have been obliged to pay or credit to the Managers: that is to say, the tax which the Managers had paid on the goods and services supplied to them for the purposes of their business of supplying investment services.
+The Court of Appeal considered this reasoning to be fallacious on the basis that if the supply of services by the Managers was not taxable, then the Managers had no right to deduct as input tax the VAT which they had paid to their own suppliers.
+The Managers retained the notional 25 in satisfaction of what the court regarded as a purported obligation, on the part of the Commissioners, which never existed.
+The Commissioners did not, therefore, benefit from the Lead Claimants payment of the notional 25.
+An order compelling them to pay that amount to the Lead Claimants would not reverse an enrichment but leave them worse off, having received 75 and made restitution of 100.
+Any claim to restitution of the 25 should therefore have been directed against the Managers.
+In this appeal, counsel for the Lead Claimants argued that when the 25 was paid to the Managers, the position under the applicable UK legislation was that the Managers were entitled to deduct their input tax in satisfaction of an obligation owed to them by the Commissioners.
+They continued to be entitled to account to the Commissioners for VAT, notwithstanding that it was not lawfully due under EU law, and therefore remained entitled to claim reimbursement in respect of input tax, until the position under UK law was changed: Becker v Finanzamt Mnster Innenstadt (Case C 8/81) [1982] ECR 53; VDP Dental Laboratory NV v Staatsecretaris van Financin (Joined Cases C 144/13, C 154/13 and C 160/13) [2015] STC 1133.
+The Court of Justice had rejected the argument that a domestic levy which was incompatible with EU law was to be treated as having never existed: Ministero delle Finanze v IN CO GE90 Srl (Joined Cases C 10/97 to C 22/97) [1998] ECR I 6307.
+I am unable to accept this argument.
+The case of Ministero delle Finanze v IN CO GE90 Srl merely establishes that national legislation which is incompatible with EU law, although inapplicable in so far as it is incompatible, is not a nullity for all purposes.
+The case concerned claims for the repayment of a charge which had been levied under Italian legislation which was inconsistent with EU law.
+A preliminary issue before the national court was whether the claims fell within its jurisdiction: an issue which turned on whether they were of a fiscal or a civil nature.
+The question which troubled the national court was whether, in deciding that issue, it should treat the national legislation as set aside in its entirety, or whether it could have regard to the legislation for the purpose of characterising the nature of the relationship between the parties at the time when the contested amounts were paid.
+The Court of Justice held that, subject to compliance with the principles of non discrimination and effectiveness, the detailed rules which applied for the repayment of a charge, and the classification for that purpose of the legal relationship established when the charge was levied, were matters to be determined under national law (para 26).
+The cases of Becker and VDP Dental Laboratory are more directly in point.
+In the former case, VAT had been levied under domestic law in respect of services which were exempt under the relevant directive, and an issue was raised as to the consequences of granting the exemption retrospectively after the mistake was discovered.
+In the course of its judgment, the Court of Justice stated that, by availing themselves of an exemption from VAT, persons entitled to the exemption necessarily waived the right to claim a deduction in respect of input tax (para 44).
+An analogous conclusion was reached in the VDP Dental Laboratory case, where an exemption provided for under national law was incompatible with the relevant VAT directive.
+The court held that the taxable person was not entitled both to benefit from the exemption and to exercise the right to deduct input tax (para 40).
+It follows from these authorities that the Managers could not both claim reimbursement of the output tax which they had paid to the Commissioners, under section 80 of the 1994 Act, on the basis that their supplies were exempt from VAT, and simultaneously assert an entitlement to retain the amounts which they had deducted as input tax, on the basis that their supplies were taxable.
+The Commissioners were not, therefore, enriched by the Managers retention of the notional 25, and the Managers have, in principle, no defence to a claim by the Lead Claimants for the restitution of that amount.
+That conclusion is as one would expect.
+The Lead Claimants claim to restitution against the Commissioners proceeds on the basis that the supplies which they received from the Managers were exempt from VAT.
+That being so, it would be surprising if they could present that claim, in relation to the measure of restitution, on a basis which was predicated on the supplies being taxable.
+notional 75.
+Was the enrichment at the Lead Claimants expense?
+There is no doubt that, in economic terms, the Commissioners were enriched at the expense of the Lead Claimants.
+On the mistaken premise that the supplies were taxable, the Lead Claimants were charged tax by the Managers, and paid it to them in accordance with their contract.
+On the same premise, the Managers were obliged to account to the Commissioners for the tax chargeable on their supplies, and to pay them the output tax in respect of each accounting period, after deducting their input tax.
+The net result of the mistake was that the Lead Claimants were worse off by the amount of the Managers output tax, and the Commissioners were better off to the extent that that amount exceeded the Managers input tax.
+It follows that the Commissioners enrichment was only to the extent of the
+As the judge noted, however, no payment was made by the Lead Claimants to the Commissioners.
+Nor were the Managers simply a conduit or, in legal terms, an agent for payment by the Lead Claimants to the Commissioners.
+The Lead Claimants owed no money to the Commissioners.
+Furthermore, the payment of the tax element of the invoices submitted by the Managers to the Lead Claimants was not the cause of the payment of tax by the Managers to the Commissioners: as explained earlier, the Managers were liable to account for tax to the Commissioners once they had supplied the relevant services.
+As the judge found, it could not be said that the tax would not have been paid but for the payments by the Lead Claimants to the Managers.
+In these circumstances, it was argued, the Lead Claimants remedy lay against the Managers, as the recipients of the mistaken payments which they had made, leaving it to the Managers to recover from the Commissioners any amount which they had mistakenly paid to them in accordance with the legislation.
+After considering the limited guidance provided by the modern English authorities, and English academic opinion, the judge concluded that, as a general rule, a defendant was legally enriched at the expense of the person from whom the benefit in question was directly received.
+There were, however, exceptions to that general rule.
+Without attempting to be exhaustive, he listed a number of relevant criteria for identifying such exceptions, which he derived from the authorities: put shortly, the need for a close causal connection between the payment (or other provision of a benefit) by the claimant and the enrichment of the defendant, the need to avoid the risk of double recovery, the need to avoid conflict with contracts between the parties, and the need to distinguish between unjust enrichment and compensation or damages.
+Applying that approach, he regarded the present case as exceptional.
+First, to allow the Lead Claimants to recover from the Commissioners would not, in his view, involve any risk of double recovery, as any claim against the Managers would face a cast iron defence of change of position, since they had accounted to the Commissioners for the entirety of the tax and retained no benefit for themselves (this reasoning mistakenly presumed that the Managers were entitled to retain the notional 25, as deductible input tax, and that the notional 75 was irrecoverable by the Managers from the Commissioners).
+Secondly, it would not undermine or conflict with the contract between the Lead Claimants and the Managers, which had provided for the payment of VAT if applicable.
+Thirdly, notwithstanding the absence of a strict causal connection between the payments by the Lead Claimants and the enrichment of the Commissioners, the nexus created by the VAT system between the consumer and the Commissioners could, in his view, hardly be closer or stronger as a matter of commercial reality.
+In that regard, the judge referred at para 49 to the statements of the Court of Justice in Elida Gibbs Ltd v Customs and Excise Comrs (Case C 317/94) [1996] ECR I 5339; [1997] QB 499, that the basic principle of the VAT system is that it is intended to tax only the final consumer (para 19), and that the taxable persons collect the tax on behalf of the tax authorities and account for it to them (para 22).
+In his view, cases concerned with subrogation showed that the at the expense of requirement could be satisfied by reference to the underlying commercial reality of a transaction (para 72).
+By the time this case came before the Court of Appeal, the approach adopted by the judge had already been approved by that court in three decisions: Menelaou v Bank of Cyprus UK Ltd [2013] EWCA Civ 1960, [2014] 1 WLR 854; TFL Management Services Ltd v Lloyds TSB Bank plc [2013] EWCA Civ 1415, [2014] 1 WLR 2006; and Relfo Ltd v Varsani (No 2) [2014] EWCA Civ 360; [2015] BCLC 14.
+It was also endorsed by the Court of Appeal in the present case.
+The court noted that the judge had been mistaken in thinking that the Managers would have a defence to a direct claim by the Lead Claimants, so far as the notional 25 was concerned.
+It nevertheless agreed with his conclusion that, in the context of VAT, the final consumer who paid the tax had a sufficient economic connection with the Commissioners to be able to say that they had been enriched at his expense when the tax ought never to have been imposed on the services which were supplied.
+General discussion
+Decisions concerning the question whether an enrichment was at the expense of the claimant demonstrate uncertainty as to the approach which should be adopted.
+Such tests as have been suggested have been too vague to provide clarity.
+For example, in Menelaou v Bank of Cyprus UK Ltd [2015] UKSC 66; [2016] AC 176, Lord Clarke of Stone cum Ebony said at para 27, with the agreement of Lord Neuberger of Abbotsbury, Lord Kerr of Tonaghmore and Lord Wilson, that the question in each case is whether there is a sufficient causal connection, in the sense of a sufficient nexus or link, between the loss to the bank and the benefit received by the defendant.
+This leaves unanswered the critical question, namely, what connection, nexus or link is sufficient? The same can be said of Arden LJs statement in Relfo that there must be a sufficient link (para 95), Floyd LJs reference in the same case to proximity (para 110), and the Court of Appeals finding in the present case that there was a sufficient economic connection (para 67).
+It would be unwise to attempt in this appeal to arrive at a definitive statement of the circumstances in which the enrichment of a defendant can be said to be at the expense of the claimant.
+Nevertheless, in view of the uncertainty which has resulted from the use of vague and generalised language, this court has a responsibility to establish more precise criteria.
+Some observations of a general nature should therefore be made, before turning to the specific context in which the issue arises in the present case.
+It should be said at the outset that these observations are concerned only with personal claims, and not with proprietary claims.
+First, it is important, when dealing with personal claims based on unjust enrichment, to bear in mind what was said by Lord Goff of Chieveley in Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548, 578, when rejecting a submission that, when dealing with a claim to restitution based on unjust enrichment, it was for the court to consider the question of injustice or unfairness on broad grounds, and that it should deny recovery if it thought that it would be unjust or unfair to hold the defendant liable: The recovery of money in restitution is not, as a general rule, a matter of discretion for the court.
+A claim to recover money at common law is made as a matter of right; and even though the underlying principle of recovery is the principle of unjust enrichment, nevertheless, where recovery is denied, it is denied on the basis of legal principle.
+As Lord Steyn remarked in Banque Financire, unjust enrichment ranks next to contract and tort as part of the law of obligations (p 227).
+A claim based on unjust enrichment does not create a judicial licence to meet the perceived requirements of fairness on a case by case basis: legal rights arising from unjust enrichment should be determined by rules of law which are ascertainable and consistently applied.
+Without going as far as Scrutton LJ, who described the legacy of Moses v Macferlan (1760) 2 Burr 1005 as a history of well meaning sloppiness of thought (Holt v Markham [1923] 1 KB 504, 513), McLachlin J rightly cautioned against the tendency to view the action for unjust enrichment as a device for doing whatever may seem fair between the parties: Peter v Beblow (1993) 1 SCR 980, 988.
+Secondly, the adoption of the concept of unjust enrichment in the modern law, as a unifying principle underlying a number of different types of claim, does not provide the courts with a tabula rasa, entitling them to disregard or distinguish all authorities pre dating Lipkin Gorman.
+The point is illustrated by the judgment of Floyd LJ in TFL, where the decision in Ruabon Steamship Co Ltd v London Assurance [1900] AC 6 was put to one side on the basis that the House of Lords was not looking at the case through the eyes of the modern law of unjust enrichment (para 39).
+Although judicial reasoning based on modern theories of unjust enrichment is in some respects relatively novel, there are centuries worth of relevant authorities, whose value should not be underestimated.
+The wisdom of our predecessors is a valuable resource, and the doctrine of precedent continues to apply.
+The courts should not be reinventing the wheel.
+Thirdly, as the judge observed in the present case, in remarks with which Lord Clarke expressed agreement in Menelaou (para 19), Lord Steyns four questions are no more than broad headings for ease of exposition.
+They are intended to ensure a structured approach to the analysis of unjust enrichment, by identifying the essential elements in broad terms.
+If they are not separately considered and answered, there is a risk that courts will resort to an unstructured approach driven by perceptions of fairness, with consequent uncertainty and unpredictability.
+At the same time, the questions are not themselves legal tests, but are signposts towards areas of inquiry involving a number of distinct legal requirements.
+In particular, the words at the expense of do not express a legal test; and a test cannot be derived by exegesis of those words, as if they were the words of a statute.
+The structured approach provided by the four questions does not, therefore, dispense with the necessity for a careful legal analysis of individual cases.
+In carrying out that analysis, it is important to have at the forefront of ones mind the purpose of the law of unjust enrichment.
+As was recognised in Menelaou (para 23), it is designed to correct normatively defective transfers of value, usually by restoring the parties to their pre transfer positions.
+It reflects an Aristotelian conception of justice as the restoration of a balance or equilibrium which has been disrupted.
+That is why restitution is usually the appropriate remedy.
+The nature of the various legal requirements indicated by the at the expense of question follows from that principle of corrective justice.
+They are designed to ensure that there has been a transfer of value, of a kind which may have been normatively defective: that is to say, defective in a way which is recognised by the law of unjust enrichment (for example, because of a failure of the basis on which the benefit was conferred).
+The expression transfer of value is, however, also too general to serve as a legal test.
+More precisely, it means in the first place that the defendant has received a benefit from the claimant.
+But that is not in itself enough.
+The reversal of unjust enrichment, usually by a restitutionary remedy, is premised on the claimants also having suffered a loss through his provision of the benefit.
+This was recognised in Menelaou, as was noted in para 37 above.
+It was explained more fully by Lord Clyde in Banque Financire, citing a maxim of Pomponius: My Lords, the basis for the appellants claim is to be found in the principle of unjust enrichment, a principle more fully expressed in the Latin formulation, nemo debet locupletari aliena jactura [no one should be enriched by anothers loss] .
+Without attempting any comprehensive analysis, it seems to me that the principle requires at least that the plaintiff should have sustained a loss through the provision of something for the benefit of some other person with no intention of making a gift, that the defendant should have received some form of enrichment, and that the enrichment has come about because of the loss. (p 237)
+It should be emphasised that there need not be a loss in the same sense as in the law of damages: restitution is not a compensatory remedy.
+For that reason, some commentators have preferred to use different terms, referring for example to a subtraction from, or diminution in, the claimants wealth, or simply to a transfer of value.
+But the word loss is used in the authorities, and it is perfectly apposite, provided it is understood that it does not bear the same meaning as in the law of damages.
+The loss to the claimant may, for example, be incurred through the gratuitous provision of services which could otherwise have been provided for reward, where there was no intention of donation.
+In such a situation, the claimant has given up something of economic value through the provision of the benefit, and has in that sense incurred a loss.
+Direct and indirect provision of a benefit
+Situations in which the defendant has received a benefit from the claimant, and the claimant has incurred a loss through the provision of that benefit, usually arise where the parties have dealt directly with one another, or with one anothers property.
+Common examples are the gratuitous payment of money, or provision of goods or services, by the claimant to the defendant, where there was no intention of donation.
+In such a situation, if the enrichment of the defendant is unjust if, in other words, the transfer of value is defective in a sense recognised by the law of unjust enrichment then the claimant is prima facie entitled to have the enrichment reversed.
+There are, however, situations in which the parties have not dealt directly with one another, or with one anothers property, but in which the defendant has nevertheless received a benefit from the claimant, and the claimant has incurred a loss through the provision of that benefit.
+These are generally situations in which the difference from the direct provision of a benefit by the claimant to the defendant is more apparent than real.
+One such situation is where the agent of one of the parties is interposed between them.
+In that situation, the agent is the proxy of his principal, by virtue of the law of agency.
+The series of transactions between the claimant and the agent, and between the agent and the defendant, is therefore legally equivalent to a transaction directly between the claimant and the defendant.
+Similarly, where the right to restitution is assigned, as in Equuscorp Pty Ltd v Haxton [2012] HCA 7; 246 CLR 498; 86 AJLR 296, the claimant stands in the shoes of the assignor, and is therefore treated as if he had been a party to the relevant transaction, and the defendants enrichment had been directly at his expense.
+Another situation is where, as in Relfo, an intervening transaction is found to be a sham (para 121).
+Since the sham is created precisely in order to conceal the connection between the claimant and the defendant, it is disregarded when deciding whether the latter was enriched at the formers expense.
+So, in Relfo, Gloster and Floyd LJJ described the arrangements in question as being equivalent to a direct payment (paras 103 and 115).
+There have also been cases, discussed below, in which a set of co ordinated transactions has been treated as forming a single scheme or transaction for the purpose of the at the expense of inquiry, on the basis that to consider each individual transaction separately would be unrealistic.
+There are also situations where the defendant receives property from a third party into which the claimant can trace an interest.
+Since the property is, in law, the equivalent of the claimants property, the defendant is therefore treated as if he had received the claimants property.
+A different type of situation is typified by the case where the claimant discharges a debt owed by the defendant to a third party.
+Although it is the third party creditor who receives the payment from the claimant, the defendant is directly enriched, since the payment discharges his debt: the enrichment is not the payment which the third party receives, but the discharge which the defendant receives.
+Where the transfer of value is defective, and the enrichment is consequently unjust, the law reverses it, as far as possible, by subrogating the claimant to the rights formerly held by the third party (as was explained, for example, by Walton J in Burston Finance Ltd v Speirway Ltd [1974] 1 WLR 1648, 1652).
+There are many variations on the type of situation where equitable subrogation is an appropriate remedy to reverse or prevent unjust enrichment.
+The remedy differs from restitution, in that it does not have the effect of restoring the parties to their pre transfer positions, but it is the most practicable means of reversing or preventing unjust enrichment in the types of situation where it is appropriate.
+It has often been suggested that there is a general rule, possibly subject to exceptions, that the claimant must have directly provided a benefit to the defendant.
+The situations discussed in the two preceding paragraphs can be reconciled with such a rule, if it is understood as encompassing a number of situations which, for the purposes of the rule, the law treats as equivalent to a direct transfer, in the sense that there is no substantive or real difference.
+So understood, the suggested rule is helpful.
+It may nevertheless require refinement to accommodate other apparent exceptions, and it would be unwise at this stage of the laws development to exclude the possibility of genuine exceptions, or to rule out other possible approaches.
+Where, on the other hand, the defendant has not received a benefit directly from the claimant, no question of agency arises, and the benefit does not consist of property in which the claimant has or can trace an interest, it is generally difficult to maintain that the defendant has been enriched at the claimants expense.
+The point is illustrated by the case of MacDonald Dickens & Macklin v Costello [2011] EWCA Civ 930; [2012] QB 244, where the provision of services to a company was held not to enrich its directors and shareholders.
+It is also illustrated by the example, discussed in Relfo, of a claimant who makes a mistaken payment to a third party, who in consequence makes a gift to the defendant out of property in which the claimant has no interest, and into which he is unable to trace.
+As Arden and Floyd LJJ recognised (paras 78 and 114), the claimant does not have a claim in unjust enrichment against the defendant.
+The claimant suffers a loss through making the payment to the third party, who is unjustly enriched at his expense.
+A claim in unjust enrichment therefore lies against the third party (subject to any defences available).
+But no claim of a personal nature lies at the instance of the claimant against the defendant: the claimant has not incurred any loss through the making of the gift.
+Incidental benefits
+As explained earlier, the at the expense of requirement is not satisfied merely by the direct receipt of a benefit.
+The claimant must also incur a loss through the provision of the benefit.
+As Lord Clyde put it in Banque Financire, in the passage cited at para 44 above, the plaintiff should have sustained a loss through the provision of something for the benefit of some other person.
+That requirement will not normally be satisfied where the provision of the benefit was merely an incidental or collateral result of his expenditure. (In practice, situations where the defendant has received a benefit merely as an incidental consequence of the claimants pursuit of some other objective are also often situations in which the enrichment of the defendant is not in any event unjust.) In such a situation, the claimant may have received the consideration for which he bargained as the counterpart of his own expenditure, and in that event will not usually have suffered any loss.
+Even if he has incurred a loss, it will not normally have arisen through his provision of something for the benefit of the defendant, since the benefit received by the defendant will have been merely incidental or collateral to the reason why the expenditure was incurred.
+A but for causal connection between the claimants being worse off and the defendants being better off is not, therefore, sufficient in itself to constitute a transfer of value.
+The need for the claimant to suffer a loss through the provision of something for the benefit of the defendant is illustrated by the Ruabon case, which concerned a ship which had been damaged during a voyage covered by a policy of marine insurance.
+She was put into dry dock for repairs at the expense of the insurers.
+The owners took advantage of her being in dry dock to have her surveyed for the purpose of renewing her Lloyds classification.
+There was no consequent increase in dock expenses.
+Even if the insurers might be regarded as having provided a benefit to the owners (by enabling them to have the vessel surveyed without themselves incurring the expense of putting her into dry dock), the insurers incurred no loss through the provision of that benefit: their expenses were not increased, and they received the consideration for which they had paid.
+The insurers claim for a contribution towards their expenses, on the basis that the owners had benefited from it, was rejected.
+Lord Macnaghten put the point in a nutshell: there is no principle of law which requires that a person should contribute to an outlay merely because he has derived a material benefit from it (p 15).
+The Earl of Halsbury LC, in a speech with which the other members of the Committee agreed, emphasised the fact that the owners were strangers to the exercise undertaken by the insurers, and the absence in those circumstances of any reason why, in justice, they should contribute towards its cost: [T]his is the first time in which it has been sought to advance that principle [of contribution] where there is nothing in common between the two persons, except that one person has taken advantage of something that another person has done, there being no contract between them, there being no obligation by which each of them is bound, and the duty to contribute is alleged to arise only on some general principle of justice, that a man ought not to get an advantage unless he pays for it.
+So that if a man were to cut down a wood which obscured his neighbour's prospect and gave him a better view, he ought upon this principle to be compelled to contribute to cutting down the wood. (p 12) The Lord Chancellors example did not involve anything which might have been argued to be an unjust factor, but the position would scarcely be different if it had: if, for example, the man had cut down the wood in the mistaken belief that the trees were diseased.
+Another illustration of the need for a loss to be incurred through the provision of the benefit, also cited to the Court of Appeal in the TFL case, is the case of Edinburgh and District Tramways Co Ltd v Courtenay 1909 SC 99.
+It concerned a contract between a tramway company and an advertising firm, under which the firm paid a rental for the right to display advertising on the tramcars.
+It was up to the firm to provide the boards around the upper deck of the tramcars, on which the advertisements were displayed.
+The tramway company subsequently constructed new tramcars with decency boards already supplied, saving the advertising firm the expense of fitting its own.
+The tramway companys claim against the advertising firm for the cost of fitting the decency boards was rejected, on the ground that the tramway company had not incurred any loss through the provision of the benefit.
+Lord President Dunedin observed that there are certain marks or notes of the situation in which recompense is due, and I think that one mark or note is that the person who claims recompense must have lost something (pp 105 106).
+The Lord President also emphasised that the company had been acting for its own purposes.
+Referring to earlier authorities, he remarked that in the case at hand you have the same element that went to the decision of some of these eases, that the thing done was as much for the benefit of the man who did it as for that of the other person (p 106).
+The Lord President illustrated his opinion with an illuminating example: One man heats his house, and his neighbour gets a great deal of benefit.
+It is absurd to suppose that the person who has heated his house can go to his neighbour and say Give me so much for my coal bill, because you have been warmed by what I have done, and I did not intend to give you a present of it. (p 105)
+The importance of identifying a loss arising through the provision of a benefit is also illustrated by the case of TFL, where a claim based on unjust enrichment was brought by a company, A, against a defendant, B, in order to recover the costs which A had incurred in earlier legal proceedings.
+Those proceedings had been brought by A in order to recover a debt from a third party, C, and had been successfully defended on the ground that the debt was due, not to A, but to B. After B recovered the debt, A brought proceedings against B on the basis that A had conferred a benefit on it by bringing the earlier proceedings and thereby clarifying Bs right to recover the debt.
+Since A had done so under an erroneous understanding of its rights, it argued that B had therefore been unjustly enriched at its expense.
+The Court of Appeal, by a majority (Sir Stanley Burnton dissenting), held that the claim could not be summarily dismissed.
+The court had understandable difficulty in identifying the benefit which had supposedly been conferred by A on B (para 50), and accepted that the benefit, whatever it consists of, had not been directly provided by A to B (para 54).
+It appears to have considered that a causal link between As payment of the costs of the proceedings and an indirect benefit to B was nevertheless arguably sufficient (para 64).
+The fact that A had been acting in its own interests was considered to be no answer (para 67).
+The court could hardly have reached the same conclusion if, when considering the at the expense of question, it had focused on the need to identify a transfer of value from the claimant to the defendant.
+A had not provided any benefit directly to B.
+At best, B had received an incidental benefit as the result of As pursuit of its own interests.
+The facts of the case, so far as the at the expense of question is concerned, were not materially distinguishable from those of Lord Dunedins example of the householder whose heating warms his neighbours house.
+Furthermore, As erroneous understanding of its legal rights did not in any event bear on the justice of Bs incidentally benefiting from the clarification of the legal position: one might cite Pollock CBs rhetorical question in Taylor v Laird (1856) 25 LJ Ex 329, 332, One cleans anothers shoes; what can the other do but put them on? A had received the legal services it had bargained for when it incurred the expense (and, if it also had to meet its opponents costs, that was a risk inherent in litigation, which it voluntarily assumed).
+Even bearing in mind that the Court of Appeal was dealing with a strike out application, the majority of the court were wrong in not summarily dismissing the claim.
+It is interesting to note that similar claims were rejected long ago in Scotland, on the basis that the litigant had been pursuing his own interests.
+More, in his Notes to Stairs Institutions (1832), states: a person who, for his own benefit, carries on an expensive law suit, which, in the result, establishes some point as beneficial to other neighbouring proprietors as to himself, can make no claim against them for any part of the expense incurred by him.
+And Lord Stair, in the text, states the case of a person who reduces [sets aside] a right as void, and thereby lets in the claims of third parties, which are ultimately preferred to his own, yet he says, that as he was doing his own business, not theirs, he can claim no share from them of his expenses. (p liv) Humes Lectures (1786 1822) are to the same effect, stating in relation to the person who brings an action: Now, though it should so happen, (as very often it must,) that he settles some point of law, in the decision of this lawsuit of his, and thus does a service to a number of other persons, whose property, or concerns, are in the like situation; yet still the cost of this lawsuit is his peculiar and exclusive concern.
+He can recover no part of it from his neighbours, or any of them, for whose benefit he probably never would have stirred in the matter. (Vol III, p 167, citing the unreported case of Ferguson v Smyth, 18 November 1802, SC Old Sess Pap, vol 437, No 30.)
+Economic reality
+Nor is the at the expense of requirement satisfied by a connection between the parties respective benefit and loss merely as a matter of economic or commercial reality.
+Economic reality is not only a somewhat fuzzy concept, as Moses LJ described it in Menelaou [2014] 1 WLR 854, para 62, but one which is difficult to apply with any rigour or certainty in this context, or consistently with the purpose of restitution on the ground of unjust enrichment.
+An inquiry into where the economic burden of an unjust enrichment has fallen is liable to be a very complex undertaking, especially where there is a chain of suppliers and consumers.
+The supplier who passes on a tax or other charge by increasing the price of his goods or services might be thought to have shifted the economic burden, but his increased prices may have an adverse impact upon his sales, and accordingly upon the profitability of his operations.
+Furthermore, in a situation where numerous factors affect the prices which he charges, it may be far from easy to decide to what extent the economic burden of the tax has been reflected in the price charged.
+Deciding whether the economic burden of an unjust enrichment has been passed on has been described as virtually unascertainable (Hanover Shoe Inc v United Shoe Machinery Corpn (1968) 392 US 481, 493) and a near impossibility (British Columbia v Canadian Forest Products Ltd [2004] 2 SCR 74, para 205).
+These points have been made repeatedly in other jurisdictions, when considering a defence of passing on: that is to say, a defence based on the proposition that the economic burden of an unjustified enrichment was borne not by the claimant but by a third party: see, for example, Commissioner of State Revenue (Victoria) v Royal Insurance Australia Ltd (1994) 182 CLR 51; 126 ALR 1; Kingstreet Investments Ltd v New Brunswick (Finance) Ltd [2007] 1 SCR 3; and the Opinions of Advocate General Mancini in Amministrazione delle Finanze dello Stato v SpA San Giorgio (Case 199/82) [1983] ECR 3595 (San Giorgio) and of Advocate General Geelhoed in Commission of the European Communities v Italian Republic (Case C 129/00) [2003] ECR I 14637.
+A more fundamental difficulty with an approach based on economic reality arises from the fact that the purpose of restitution is not to compensate for loss, but to reverse the defective transfer.
+Looking to see who has suffered an economic loss is therefore not, in principle, the correct way of identifying the appropriate claimant.
+Indeed, even in tort law, which is concerned with compensation for loss, the court is not concerned with where the economic burden of the tort may ultimately have fallen as a matter of economic reality.
+Co ordinated transactions
+There are, on the other hand, cases in which the court has referred to reality in a different sense.
+These are cases in which, for the purpose of answering the at the expense of question, the court has treated a set of related transactions, operating in a co ordinated way, as forming a single scheme or transaction, on the basis that to answer the question by considering each of the individual transactions separately would be unrealistic.
+The case of Banque Financire, as explained in some of the judgments, is an example.
+The claimant had entered into a refinancing arrangement involving the loan of a sum of money to the manager of a holding company, which he in turn lent to a subsidiary of that company so that it could discharge a debt secured by a first ranking security.
+The purpose of interposing the manager between the claimant and the first subsidiary was to avoid a requirement to make a public disclosure of the loan, which would have applied if the claimant had lent the money directly to the first subsidiary.
+The claimant paid the money directly to the subsidiarys creditor, so discharging the debt.
+It was conceded that this enriched the defendant, which was another subsidiary of the holding company, since it promoted the ranking of its own security, with the consequence that it was the only creditor of the first subsidiary which was likely to be repaid.
+This was contrary to the understanding on which the claimant had advanced the loan, namely that it would be repaid in priority to all intra group debts.
+The House of Lords held that this would unjustly enrich the defendant, and therefore subrogated the claimant to the discharged security, as against the defendant, so as to prevent the unjust enrichment.
+One of the questions considered by the House of Lords was whether the enrichment was at the expense of the claimant, when the claimant had made the loan to the manager of the holding company, who had then made a further loan to the first subsidiary, rather than the claimant lending directly to the first subsidiary.
+Two different analyses were put forward.
+Lord Steyn proceeded on the basis that the interposition of the loan to the manager was no more than a formal act designed to allow the transaction to proceed .
+To allow [it] to alter the substance of the transaction would be pure formalism (p 227).
+Lord Clyde similarly stated that the arrangement with the manager did not prevent recognition of the reality of the granting of the funds by [the claimant] to [the holder of the first ranking security] (p 238).
+That was also the view of Lord Hutton (the reality was that the [defendant] was enriched at the expense of [the claimant]: p 239).
+Lord Hoffmann, with whom Lord Steyn, Lord Griffiths and Lord Clyde agreed, put forward another analysis, namely that the claimants money could be traced into the discharge of the debt secured by the first ranking security (p 235).
+On both analyses, the House of Lords treated the situation as one where the defendant had directly received a benefit from the claimant, since on one analysis it was in reality the claimant which had discharged the first ranking security and thereby promoted the defendants security, and on the other analysis it was the claimants money which had done so.
+The case of Menelaou provides another illustration.
+The case concerned the sale of a property owned by the defendants parents, and the use of part of the proceeds to purchase another property in her name, as a gift.
+The claimant bank held a charge over the first property to secure the parents borrowings, and agreed to the discharge of the security in return for a fresh charge over the second property.
+It instructed solicitors to deal with the discharge of the security over the first property and to obtain a charge over the second property.
+The solicitors sent the bank a charge over the second property, purportedly executed by the defendant, and the bank authorised the discharge of the security over the first property.
+In the event, the second charge was defective, as a result of the solicitors negligence.
+The defendant had agreed to the purchase of the second property in her name, but was unaware of her parents agreement with the bank that there should be a charge.
+The solicitors admitted liability to the bank for its losses, subject to credit being given for any sums which the bank might recover from the defendant.
+Lord Carnwath analysed the case in terms of the law of equity rather than unjust enrichment.
+He considered that the moneys held by the solicitors following the sale of the first property, and used to purchase the second property, were held on a Quistclose type trust for the bank (Quistclose Investments Ltd v Rolls Razor Ltd [1970] AC 567).
+On that footing, it followed that the bank was subrogated to the lien of the unpaid vendor of the second property, so as to give it an equitable interest in the property.
+In other words, the vendor had a lien over the property, to secure his right to payment of the purchase price, as long as he remained unpaid.
+The bank, on discharging the parents obligation to pay the vendor, became entitled in equity to the benefit of that lien (or, strictly analysed, to a new lien to secure its own right to repayment) by subrogation.
+The other members of the court held that the bank should be subrogated to the unpaid vendors lien on the basis of unjust enrichment, since it had mistakenly authorised the use of the proceeds of sale of the first property (which it could otherwise have required to be applied to discharge the debt owed to itself) to purchase the second property, thereby providing the defendant with a benefit at its expense.
+Lord Clarke proceeded on the basis that the two arrangements, namely the sale of [the first property] and the purchase of [the second property], were not separate but part of one scheme, which involved the bank throughout (para 25).
+Lord Neuberger agreed, observing that it is appropriate not merely to consider the purchase of, and charge over, [the second property] as a single composite transaction, applying the approach to property purchases involving a charge which was adopted in Abbey National Building Society v Cann [1991] 1 AC 56, but that it was also appropriate in the present case to treat the sale of [the first property] and the purchase of [the second property] as one scheme, at least for present purposes (para 67).
+Lord Kerr and Lord Wilson agreed with both judgments in relation to this issue.
+On that basis, Lord Clarke considered that the conclusion that there had been a transfer of value between the bank and the defendant gave effect to the reality of the transaction, notwithstanding the absence of a direct payment by the former to the latter (para 33).
+Lord Neuberger agreed, stating: [T]here was in reality a single transaction, and it was from that transaction that [the defendant] directly benefitted, even though the benefit was effected at the direction of the Menelaou parents.
+The benefit to [the defendant] was direct because it arose as the immediate and inevitable result of the very transaction to which she was party and which gave rise to the unjust enrichment. (para 73)
+At the expense of in the present case
+Turning to the issue raised in the present case, the only English authority cited in argument which contains a discussion of the at the expense of question in relation to taxation is the decision of the Court of Appeal in Kleinwort Benson Ltd v Birmingham City Council [1997] QB 380.
+The case concerned a claim by a bank for restitution of money which it had paid to a local authority under a void swap transaction.
+The bank had also entered into hedging arrangements with a third party which protected it against loss.
+In considering whether English law recognised a defence of passing on, the Court of Appeal discussed the requirement that the defendants enrichment should be at the expense of the claimant.
+Evans LJ, delivering the leading judgment with which Saville LJ agreed, referred to a range of authority and academic writing from other jurisdictions, including two authorities concerned with taxes paid under a mistake: the decision of the United States Federal Court of Appeals for the Second Circuit in 123 East Fifty Fourth Street Inc v United States (1946) 157 F 2d 68, and the decision of the High Court of Australia in Commissioner of State Revenue (Victoria) v Royal Insurance Australia Ltd. He noted that the cases raised a question, akin to agency, which is whether the taxpayer should be regarded as having collected tax from his customers on behalf of the taxing authority, and that it had been said by Learned Hand J in the 123 East Fifty Fourth Street case that any tax recovered by the taxpayer would be held by him as a fiduciary for his customers.
+Similarly, in the Royal Insurance case it had been said that if it was established that the plaintiff had charged its policy holders the tax as a separate item, it would be entitled to recover the money from the tax authority but would then hold it as a constructive trustee.
+In the event, however, Evans LJ found the taxation cases of little assistance, since on the facts of the case no question of a constructive trust or of any obligation to account to customers could arise (p 391).
+Morritt LJ, with whose judgment Saville LJ also agreed, emphasised that the plaintiff was legally and beneficially entitled to the money it paid to the authority, and that the case was not one in which the claimant held the money claimed as a bare trustee or tax collector such as, arguably, in the 123 East Fifty Fourth Street case (p 400).
+It has not been argued in the present appeal that the Managers held the amounts paid to them by the Lead Claimants in respect of VAT as agents or trustees or in any other fiduciary capacity.
+In the circumstances, it is unnecessary to consider the American and Australian authorities in any detail.
+The dissenting opinion of Learned Hand J in the 123 East Fifty Fourth Street case was concerned with a simpler situation than the present case, where the supplier of services collected sales tax from his customers, as a separately identifiable amount paid for the purpose of meeting the tax, and then remitted the whole of that amount to the tax authority.
+The same was true in the case of Wayne County Produce Co v Duffy Mott Co (1927) 244 NY 351, where Cardozo CJ adopted a similar approach.
+The reasoning in these cases was approved by Mason CJ in the Royal Insurance case, in an opinion in which the other members of the court did not join, but he distinguished the case before him on the basis that the amount collected was not paid separately from the price of the services supplied.
+In considering these authorities, it is necessary not only to bear in mind the differences from the facts of the present case, but also to remember that American and Australian law adopt a broader approach to constructive trusts than English law.
+In particular, one of the essential requisites for a trust in English law is that there must be identifiable trust property (or its traceable proceeds) in the hands of the recipient which is not available to him as part of his general assets: see Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669, 705.
+In the present case, the contracts between the Managers and the Lead Claimants provided for the Managers to be paid fees plus VAT if applicable (or words to similar effect).
+The contractual obligation of the Lead Claimants was therefore to pay the fees plus whatever sum, if any, was necessary in order to meet the VAT chargeable on the supply in question.
+This was reflected in the invoices issued by the Managers, which drew a distinction between their fees, on the one hand, and the VAT due on their fees, on the other hand.
+There is, however, no evidence that the Managers were expected to keep the amounts paid to them by the Lead Claimants in respect of VAT separate from their other funds: on the face of things, they were entitled to treat them as part of their general assets.
+It follows that in paying those amounts to the Managers, the Lead Claimants must be taken to have intended to part with any interest in the money, rather than to have impressed it with a special purpose trust.
+Furthermore, since the Managers were not aware of any mistake prior to making payment to the Commissioners, their conscience cannot have been affected so as to render them trustees: see Westdeutsche at p 709.
+In these circumstances, the right to the restitution of money paid under the contract as the result of a mistake gives rise, like the contract itself, to purely personal obligations.
+Returning, then, to the question whether the unjust enrichment of the Commissioners was at the expense of the Lead Claimants, and focusing on whether there was a transfer of value from the Lead Claimants to the Commissioners, the answer is in the negative.
+There was a transfer of value, comprising the notional 100, from the Lead Claimants to the Managers, under the contract between them.
+It was defective, because it was made in performance of a contractual obligation which was mistakenly believed to be owed.
+There was a subsequent transfer of value, comprising the notional 75, from the Managers to the Commissioners.
+It was also defective, because it was made in compliance with a statutory obligation which was inapplicable because it was incompatible with EU law.
+These two transfers cannot be collapsed into a single transfer of value from the Lead Claimants to the Commissioners.
+That follows from a number of considerations.
+First, the Lead Claimants do not challenge the judges rejection of a connection between the payments made by the Lead Claimants and the payments received by the Commissioners based on agency.
+The intervention of the Managers cannot therefore be disregarded on the basis that they were in law the proxy of one of the other parties.
+Secondly, since the payments made by the Lead Claimants formed part of the Managers general assets, to do with as they pleased, it is impossible to trace those payments into the payments subsequently made by the Managers to the Commissioners, and so to regard the Commissioners as having benefited from the receipt of property in which the Lead Claimants had an interest.
+Thirdly, the fact that there were two separate transactions first, between the Claimants and the Managers, and secondly between the Managers and the Commissioners is not in this context something which can be disregarded.
+In particular, there is no question of the transactions being a sham or involving an artificial step, or of their comprising a single scheme.
+The first transfer did not even bring about the second transfer as a matter of causation: the judges rejection of a but for causal connection between the two transfers is not challenged.
+The Lead Claimants rely on a connection established by commercial or economic reality.
+But, for the reasons already explained, the fact that, as a matter of economic or commercial reality, the Lead Claimants bore the cost of the undue tax paid by the Managers to the Commissioners does not in itself entitle them to restitution from the Commissioners.
+It follows that the Lead Claimants did not in principle have any right to restitution against the Commissioners.
+They did, on the other hand, have a right to restitution against the Managers.
+That right was to restitution of the entire amount paid in respect of VAT, ie the notional 100.
+The Managers did not in principle have a change of position defence in respect of the notional 75 which they paid to the Commissioners, since that change of position was reversible under section 80 of the 1994 Act, as I shall shortly explain.
+Nor did they have a change of position defence in respect of the notional 25 which they retained.
+Steyns questions.
+Section 80 of the 1994 Act
+In order to determine the issues arising in relation to EU law, it is necessary next to consider the effect of section 80 of the 1994 Act.
+The section has undergone amendment on a number of occasions.
+The version in force at the time when the Managers made their claims, and also applicable at the time when the present actions were brought by the Lead Claimants, was in the following terms, so far as material: In the circumstances, it is unnecessary to consider the remainder of Lord Credit for, or repayment of, overstated or overpaid VAT (1) Where a person (a) has accounted to the Commissioners for VAT for a prescribed accounting period (whenever ended), and (b) in doing so, has brought into account as output tax an amount that was not output tax due, the Commissioners shall be liable to credit the person with that amount. (lA) Where the Commissioners (a) have assessed a person to VAT for a prescribed accounting period (whenever ended), and (b) tax an amount that was not output tax due, in doing so, have brought into account as output they shall be liable to credit the person with that amount. (lB) Where a person has for a prescribed accounting period (whenever ended) paid to the Commissioners an amount by way of VAT that was not VAT due to them, otherwise than as a result of (a) brought into account as output tax, or (b) 26 not being brought into account, an amount of input tax allowable under section an amount that was not output tax due being the Commissioners shall be liable to repay to that person the amount so paid. (2) The Commissioners shall only be liable to credit or repay an amount under this section on a claim being made for the purpose. (2A) Where (a) as a result of a claim under this section by virtue of subsection (1) or (lA) above an amount falls to be credited to a person, and after setting any sums against it under or by (b) virtue of this Act, some or all of that amount remains to his credit, the Commissioners shall be liable to pay (or repay) to him so much of that amount as so remains. (3) It shall be a defence, in relation to a claim under this section by virtue of subsection (1) or (lA) above, that the crediting of an amount would unjustly enrich the claimant. (4) The Commissioners shall not be liable on a claim under this section (a) (1) or (1A) above, or (b) (1B) above, to repay an amount to a person under subsection to credit an amount to a person under subsection if the claim is made more than three years after the relevant date [ie the end of the prescribed accounting period]. (7) Except as provided by this section, the Commissioners shall not be liable to credit or repay any amount accounted for or paid to them by way of VAT that was not VAT due to them.
+Section 80 is supplemented by section 80A, introduced by section 46(2) of the Finance Act 1997 and subsequently amended, which enables the Commissioners to make regulations providing for reimbursement arrangements to be disregarded for the purposes of section 80(3) except where they contain such provision, and are supported by such undertakings, as may be required by the regulations.
+The relevant regulations are contained in Part VA of the Value Added Tax Regulations 1995 (SI 1995/2518), as amended.
+They provide for reimbursement arrangements, defined by regulation 43A as arrangements for the purposes of a claim under section 80 which (a) are made by a claimant for the purpose of securing that he is not unjustly enriched by the crediting of any amount in pursuance of the claim, and (b) provide for the reimbursement of persons (consumers) who have, for practical purposes, borne the whole or any part of the original amount brought into account as output tax that was not output tax due.
+The regulations go on to require the claimant under section 80 to give undertakings to the Commissioners that he will apply the whole of the amount credited, and any interest on that amount, to the reimbursement of identified consumers whom he has reimbursed or intends to reimburse.
+It is common ground that, for persons who have accounted to the Commissioners for VAT that was not due, section 80 and the associated regulations provide a code for the recovery of VAT which is exhaustive and excludes other remedies such as a common law claim based on unjust enrichment.
+It is also common ground that the ITCs could never have made a claim under section 80, since they did not pay or account for any of the VAT in question to the Commissioners.
+The first issue in dispute is whether the effect of section 80 is to exclude a common law claim by the ITCs, assuming, contrary to my earlier conclusion, that such a claim might otherwise be brought.
+The argument for the Lead Claimants is based primarily on the structure and wording of section 80.
+They point out that subsections (1) to (6) are concerned with the crediting or repayment of undue VAT to the supplier, not the consumer.
+In subsection (7), the words credit or repay echo the language of earlier subsections, where they can plainly refer only to the repayment or crediting of the supplier.
+They submit that subsection (7) is similarly concerned with the supplier.
+Only a supplier of goods or services can account for an amount to the Commissioners, and only a supplier can be credited with an amount by them.
+Similarly, only a supplier can be repaid by the Commissioners, since only he has paid them in the first place.
+Section 80(7) is thus designed only to exclude claims, otherwise than under the section, by persons who have a claim under the section.
+That argument was accepted by the Court of Appeal.
+On behalf of the Commissioners, it is argued that the word repay is capable of applying to any payment back by the Commissioners of VAT which they have received.
+From their perspective, there is a repayment if the VAT is refunded, whether to the supplier or to someone else.
+Furthermore, it is argued, it would be strange if section 80(7) barred a restitutionary claim by the supplier, but left the suppliers customer in a better position.
+Moreover, it is argued, section 80 establishes a statutory scheme for the restitution of VAT which was not due, which by necessary implication excludes non statutory restitutionary claims.
+The argument seeks to draw support from the decision of the Court of Appeal in Monro v Revenue and Customs Comrs [2008] EWCA Civ 306; [2009] Ch 69, where a common law claim was held to be excluded by a statutory scheme for the recovery of tax, since it would be inconsistent with the purpose of the scheme.
+In agreement with the judge, I find the textual arguments inconclusive, when considered by themselves.
+The word repay is capable of bearing a wider meaning than the one for which the claimants contend, but could also be construed more narrowly.
+A purposive construction of the provision points more clearly to the correct conclusion.
+In that regard, section 80(3) and (4) are particularly important.
+Under section 80(3), the Commissioners have a statutory defence to a claim under section 80 a claim which, it is agreed, can only be made by a supplier where crediting the supplier would unjustly enrich him.
+The possibility of unjust enrichment (in a non technical sense) arises because the supplier normally recovers from his customers the output tax for which he accounts to the Commissioners.
+The subsection therefore creates a statutory defence of passing on.
+Section 80A, and the 1995 Regulations, then create a scheme under which the defence is disapplied where reimbursement arrangements are made with the purpose of ensuring that the payment to the supplier is used to reimburse the consumers who have borne the economic burden of the tax.
+Sections 80 and 80A, together with the 1995 Regulations, thus create a scheme which enables consumers who have been wrongly charged VAT to obtain reimbursement.
+The consumers are able to recover the VAT which they were wrongly charged, to the extent that it was remitted by the supplier to the Commissioners, through the medium of the suppliers claim under section 80.
+Although the consumers remedy is indirect, it can generally be expected to be effective: if the supplier is otherwise reluctant to make a claim, the consumers have a direct claim against him, as explained below.
+Subject to the question of time bar, these arrangements therefore remove any need there might otherwise be, in most circumstances, for the consumer to have a direct remedy against the Commissioners.
+It will be necessary at a later point to return to the question whether there may nevertheless be some circumstances in which a direct remedy is required by EU law.
+Section 80(4) lays down a limitation period for claims under the section which is shorter than the period of six years, with extensions in the event of mistake, which would apply to a common law claim in unjust enrichment under section 32(1)(c) of the Limitation Act 1980 (and which also applied under section 80(4) until its amendment by the Finance Act 1997).
+A statutory claim by the supplier must therefore be brought within a shorter and more certain period of time.
+The evident aim is to protect public finances against the risk of a liability to repay tax emerging more than three years after the tax was received.
+It would be inconsistent with that intention for there to be a potentially far longer period within which non statutory claims might be brought against the Commissioners by the suppliers customers.
+In the light, therefore, of section 80(3) and (4) in particular, Parliament cannot sensibly be taken to have intended, when it created this scheme for the reimbursement of suppliers (with provision for them in turn to reimburse their customers), subject to strict time limits, that it should exist concurrently with non statutory liabilities towards suppliers and their customers which were potentially wider in scope and were subject to a longer and less certain limitation period.
+Such an intention would be inconsistent with the rationale of the statutory scheme.
+In these circumstances, on the hypothesis that non statutory claims by consumers might otherwise lie against the Commissioners in circumstances falling within the scope of section 80, subsection (7) must be construed as excluding such claims.
+The Court of Appeal considered that that approach, which the judge accepted, presupposed that Parliament had in mind that restitutionary claims might be brought by consumers, and legislated with the intention of excluding such claims.
+As they pointed out, however, Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349, which established that money paid under a mistake of law might be recoverable, had not been decided when the 1994 Act was enacted.
+In their view, that background pointed away from a legislative intent to restrict claims for the recovery of overpaid VAT to the machinery provided by section 80.
+I find this reasoning unpersuasive.
+The fact that Parliament will not have had in mind a particular common law right to payment when enacting a legislative scheme for recovery does not preclude the common law right being excluded by that scheme: R (Child Poverty Action Group) v Secretary of State for Work and Pensions [2010] UKSC 54; [2011] 2 AC 15.
+The absence of a recognised right to recover money paid under a mistake of law, at the time when section 80 was enacted, did not exclude the possibility of restitutionary claims by consumers, since there were other established grounds on which restitution might be sought, including payment under a mistake of fact.
+Moreover, the Lead Claimants argument proves too much: if section 80(7) was not intended to exclude common law claims based on mistake of law, because no such cause of action was recognised when the legislation was enacted, then a common law claim by the Managers would not be excluded either; but it is common ground that section 80(7) is effective to exclude any common law claim by the Managers.
+More fundamentally, the determining factor in the present case is that the scheme created by section 80 is inconsistent with the existence of a concurrent non statutory liability on the part of the Commissioners to make restitution to consumers.
+In the absence of section 80(7), one would therefore conclude that section 80 impliedly excluded such liability (assuming that it might otherwise exist).
+Given the existence of an express exclusion in section 80(7) which is capable of covering such liability, it is unnecessary to rely on implication: one can construe section 80(7) as having the same exclusionary effect.
+It follows that section 80 bars claims by the consumers who ultimately bear the burden of VAT.
+It nevertheless enables them to be reimbursed, subject to a limitation period designed to avoid the disruption of public finances.
+Compatibility with EU law
+Section 80 must have been intended to be compliant with EU law, since it is concerned with the recovery of VAT, which is a tax imposed by EU law.
+Indeed, a report by the Law Commission indicates that section 80 was framed to accord closely with European Community law: Restitution: Mistakes of Law and Ultra Vires Public Authority Receipts and Payments, Law Com No 227 (1994) para 14.19.
+The present case raises the question whether the system of reimbursement established by section 80 has achieved that objective.
+There is a well established principle of EU law that a member state is in principle required to repay taxes levied in breach of EU law, and an equally well established exception whereby repayment can be refused where it would entail unjust enrichment of the taxable person because the burden of the tax has been passed on: see San Giorgio, paras 12 13.
+In the latter situation, however, the Court of Justice has held that the person to whom the tax was passed on should have a right to recover the sums unduly paid, so as to offset the consequences of the taxs incompatibility with EU law by neutralising the economic burden which the tax has imposed on the operator who has actually borne it: Danfoss A/S v Skatteministeriet (Case C 94/10) [2011] ECR I 9963, paras 23 and 25.
+It is for the domestic legal system of each member state to lay down the conditions under which claims may be made, subject to observance of the principles of equivalence and effectiveness: Danfoss, para 24.
+These general principles apply to the reimbursement of improperly invoiced VAT: Reemtsa Cigarettenfabriken GmbH v Ministero delle Finanze (Case C 35/05) [2007] ECR I 2425.
+Reasonable limitation periods are compatible with the principle of effectiveness, and the limitation period applicable to claims under section 80 of the 1994 Act has specifically been held to be reasonable: Marks & Spencer plc v Customs and Excise Comrs (Case C 62/00) [2003] QB 866, para 35.
+The court has accepted that, in principle, a system under which only the supplier is entitled to seek reimbursement of VAT from the tax authorities, and the consumer can seek restitution from the supplier, meets the requirements of EU law: Reemtsma, para 39.
+The court added one caveat: [I]f reimbursement of the VAT becomes impossible or excessively difficult, in particular in the case of the insolvency of the supplier, those principles may require that the recipient of the services to be able to address his application for reimbursement to the tax authorities directly. (Reemtsma, para 41).
+This approach has been applied and restated in later cases.
+In the Danfoss case, the Court of Justice put the matter in this way: 27.
+It follows that a member state may, in principle, oppose a claim for the reimbursement of a duty unduly paid made by the final consumer to whom that duty has been passed on, on the ground that it is not that consumer who has paid the duty to the tax authorities, provided that the consumer who, in the final analysis, bears the burden of that duty is able, on the basis of national law, to bring a civil action against the taxable person for recovery of the sums unduly paid. 28.
+However, if reimbursement by the taxable person were to prove impossible or excessively difficult in particular, in the case of the insolvency of that person the principle of effectiveness requires that the purchaser be able to bring his claim for reimbursement against the tax authorities directly and that, to that end, the member state must provide the necessary instruments and detailed procedural rules.
+In these passages, the insolvency of the taxable person is given as an example of circumstances where reimbursement by that person might prove impossible or excessively difficult, and where the principle of effectiveness would therefore be infringed.
+It is the most likely example to arise in practice, but it cannot be treated as necessarily exhaustive.
+The governing principle of effectiveness means that the purchaser must, in principle (and subject to procedural rules which are compatible with the principle of effectiveness, such as reasonable limitation periods), be able to recover from the member state where reimbursement by the taxable person would be impossible or excessively difficult.
+In the present case, the Lead Claimants had a common law right to restitution of the amounts mistakenly paid to the Managers, whose enforcement was neither impossible nor excessively difficult.
+The Managers had a statutory right to recover the notional 75 from the Commissioners, under arrangements which ensured that it was passed on to the Lead Claimants.
+The Managers retained the remaining 25 and were not insolvent.
+They were therefore in a position to refund it to the Lead Claimants.
+The only amounts which the Lead Claimants could not recover were the amounts which they had paid during the dead periods, to the extent that those amounts had been paid by the Managers to the Commissioners: that is to say, the notional 75 whose recovery from the Commissioners was time barred under section 80(4) of the 1994 Act.
+Although a claim by the Lead Claimants against the Managers in respect of the dead periods would not have been time barred, because of the more generous limitation period allowed by section 32(1)(c) of the Limitation Act 1980, the Managers would have a defence of change of position, since the amounts which they paid to the Commissioners during those periods were irrecoverable.
+The inability of the Lead Claimants to recover those sums is not, however, incompatible with EU law: as explained earlier, it is conceded that the three year limitation period imposed by section 80(4) of the 1994 Act is compatible with EU law.
+In these circumstances, the inability of the Lead Claimants to pursue a direct claim for restitution against the Commissioners is not incompatible with EU law.
+That follows from the application of well established principles of EU law.
+There is therefore no need for any reference to the Court of Justice.
+Nor is it necessary or appropriate to consider what the position would be in a hypothetical case where the supplier was insolvent: the court has heard no submissions, and has no information before it, as to how reimbursement arrangements under section 80 might operate in that situation.
+Conclusion
+For these reasons I would allow the Commissioners appeal and dismiss the Lead Claimants cross appeal.
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+The question at issue on this appeal is whether two provisions of the State Immunity Act 1978 are consistent with the European Convention on Human Rights and the European Union Charter of Fundamental Rights.
+The two provisions are section 4(2)(b) and section 16(1)(a).
+I shall set out both below, but in summary the effect of section 4(2)(b) is that a state is immune as respects proceedings relating to a contract of employment between a state and a person who at the time of the contract is neither a national of the United Kingdom nor resident there; and the effect of section 16(1)(a) is that a state is immune as respects proceedings concerning the employment of members of a diplomatic mission, including its administrative, technical and domestic staff.
+It is common ground that the answer depends in both cases on whether these provisions have any basis in customary international law although, as I shall explain, there is an issue about what kind of basis it must have.
+Ms Minah Janah, the Respondent to this appeal, is a Moroccan national.
+In 2005, when she was resident in Libya, she was recruited to work for the Libyan government as a domestic worker at its embassy in London.
+She entered the United Kingdom on a visa which recorded her status as Domestic Worker (Diplomatic), and continued to work for the embassy until she was dismissed in 2012.
+During that time, she worked successively in a number of Libyan diplomatic households, and latterly in the residence of the ambassador.
+Her duties were cooking, cleaning, laundry, shopping and serving at meals.
+In April 2012, she began proceedings against Libya in the Employment Tribunal in support of a claim for failure to pay her the National Minimum Wage, breaches of the Working Time Regulations, failure to provide her with payslips or a contract of employment, unfair dismissal, discrimination and harassment.
+At all material times since her arrival in the United Kingdom, Ms Janah has been resident, but not permanently resident here.
+Ms Fatimah Benkharbouche is also a Moroccan national.
+In 2000, when she was working for the Sudanese government in Iraq, she agreed to move to the United Kingdom to work for its embassy in London as a housekeeper and cook to the ambassador.
+Her employment by the London embassy began on 16 May 2000 and continued until the autumn of 2001.
+She then returned for some years to Iraq, before being re engaged to work for the London embassy in the same role as before.
+Her second term of employment began on 28 January 2005 and continued until she was dismissed on 27 November 2010.
+She subsequently began proceedings in the Employment Tribunal in support of claims for unfair dismissal, failure to pay her the National Minimum Wage, unpaid wages and holiday pay, and breaches of the Working Time Regulations.
+By the time of her dismissal, she was permanently resident in the United Kingdom, having been granted indefinite leave to remain with effect from 25 January 2010.
+It is common ground that under the terms of the State Immunity Act 1978, Libya is entitled to state immunity in respect of Ms Janahs claim and Sudan in respect of Ms Benkharbouches.
+In Ms Janahs case, this is because she has never been a Libyan national and was not a national or permanent resident of the United Kingdom at the time when her contract was made.
+Both section 4(2)(b) and section 16(1)(a) therefore apply to her.
+In Ms Benkharbouches case, it is because section 16(1)(a) applies to her.
+There are as yet no findings about whether the facts of her case bring her within section 4(2)(b).
+Both claims were dismissed by different judges in the Employment Tribunal on the ground that the employer was immune.
+In the Employment Appeal Tribunal the two cases were heard together.
+The EAT declared that sections 4(2)(b) and 16(1)(a) of the Act should be disapplied so far as they prevented Ms Janah from bringing claims based on EU law, on the ground that they were contrary to the right of access to a court guaranteed by article 47 of the EU Charter.
+The claims based on discrimination and harassment and breaches of the Working Time Regulations were accordingly allowed to proceed.
+Leave to appeal to the Court of Appeal was granted, inter alia, in order to enable it to consider whether to make a declaration of incompatibility under section 4 of the Human Rights Act 1998.
+This led to the joinder of the Secretary of State under section 5 of the Human Rights Act 1998 so as to participate in the appeal.
+The Court of Appeal affirmed the judgment of the EAT, disapplying the relevant provisions so far as they applied to the EU law claims.
+It also made a declaration of incompatibility affecting all the claims, whether founded on domestic or EU law.
+Sudan elected not to participate in the proceedings before the Court of Appeal and has not appealed to this court.
+Ms Benkharbouche was represented in the Court of Appeal but has not appeared before us.
+Libya participated in the proceedings in the Court of Appeal, but although it was granted permission to appeal to this court, it has not been permitted to pursue the appeal because it has failed to comply with an order of this court for security for costs.
+In those circumstances, the effective participants in the appeal to this court have been the Secretary of State, who appeals in both cases, and Ms Janah.
+We have also received written and oral submissions on behalf of the AIRE centre, and written submissions on behalf of 4A Law.
+It is agreed that Ms Janahs appeal raises all of the issues in either case, but I shall refer from time to time to Ms Benkharbouches position also.
+I propose first to examine the provisions of the State Immunity Act and then the requirements of the Human Rights Convention, before turning to the relationship between the Act and the international law of state immunity.
+The State Immunity Act 1978
+Before 1978, state immunity was governed in the United Kingdom by the common law.
+Properly speaking, it comprised two immunities whose boundaries were not necessarily the same: an immunity from the adjudicative jurisdiction of the courts of the forum, and a distinct immunity from process against its property in the forum state.
+During the second half of the nineteenth century, the common law had adopted the doctrine of absolute immunity in relation to both.
+The classic statement was that of Lord Atkin in Compania Naviera Vascongada v S S Cristina (The Cristina) [1938] AC 485, 490: The courts of a country will not implead a foreign sovereign, that is, they will not by their process make him against his will a party to legal proceedings whether the proceedings involve process against his person or seek to recover from him specific property or damages.
+By 1978, however, the position at common law had changed as a result of the decisions of the Privy Council in The Philippine Admiral [1977] AC 373 and the Court of Appeal in Trendtex Trading Corpn v Central Bank of Nigeria [1977] QB 529.
+These decisions marked the adoption by the common law of the restrictive doctrine of sovereign immunity already accepted by the United States and much of Europe.
+The restrictive doctrine recognised state immunity only in respect of acts done by a state in the exercise of sovereign authority (jure imperii), as opposed to acts of a private law nature (jure gestionis).
+Moreover, and importantly, the classification of the relevant act was taken to depend on its juridical character and not on the states purpose in doing it save in cases where that purpose threw light on its juridical character: Playa Larga (Owners of Cargo Lately Laden on Board) v I Congreso del Partido (Owners) [1983] 1 AC 244.
+Before the adoption of the restrictive doctrine at common law, the United Kingdom had signed a number of treaties limiting the scope of state immunity in particular respects.
+It was a signatory to the International Convention for the Unification of Certain Rules concerning the Immunity of State owned Ships (Brussels, 1926), which restricted the immunity of state owned trading vessels.
+It had also signed the European Convention on State Immunity (Basle, 1972), a regional treaty drawn up under the auspices of the Council of Europe which identified specified categories of acts done by foreign states in the territory of the forum state which would not attract immunity.
+These treaties were concerned mainly with acts of a kind which would generally not attract immunity under the restrictive doctrine.
+But neither of them sought to codify the law of state immunity or to apply the restrictive doctrine generally.
+In addition, they have attracted limited international support.
+The Brussels Convention of 1926 has attracted 31 ratifications to date.
+The Basle Convention of 1972 has to date been ratified by only eight of the 47 countries of the Council of Europe.
+One purpose of the State Immunity Act 1978 was to give effect to the Brussels and Basle Conventions, and thereby enable the United Kingdom to ratify them.
+It did this in both cases in 1979.
+But by this time, the conventions had been largely superseded by the adoption of the restrictive doctrine of state immunity at common law.
+The Act therefore dealt more broadly with state immunity, by providing in section 1 for a state to be immune from the jurisdiction of the courts of the United Kingdom except as provided in the following sections of Part I.
+The exceptions relate to a broad range of acts conceived to be of a private law character, including widely defined categories of commercial transactions and commercial activities, as well as contracts of employment and enforcement against state owned property used or intended for use for commercial purposes.
+In Alcom Ltd v Republic of Colombia [1984] AC 580, 597 598, Lord Diplock, with whom the rest of the Appellate Committee agreed, observed that given the background against which it was enacted, the provisions of the Act fall to be construed against the background of those principles of public international law as are generally recognised by the family of nations.
+The principle of international law that is most relevant to the subject matter of the Act is the distinction that has come to be drawn between claims arising out of those activities which a state undertakes jure imperii, ie, in the exercise of sovereign authority, and those arising out of activities which it undertakes jure gestionis, ie transactions of the kind which might appropriately be undertaken by private individuals instead of sovereign states.
+For present purposes, the relevant provisions of the State Immunity Act are sections 1, 3, 4 and 16.
+So far as they bear on the points at issue, they provide as follows: Immunity from jurisdiction 1.(1) A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this part of this Act. 3.(1) A State is not immune as respects proceedings relating to (3) a commercial transaction entered into by the (a) State; an obligation of the State which by virtue of a (b) contract (whether a commercial transaction or not) falls to be performed wholly or partly in the United Kingdom.
+In this section commercial transaction means any contract for the supply of goods or services; (a) (b) any loan or other transaction for the provision of finance and any guarantee or indemnity in respect of any such transaction or of any other financial obligation; and (c) any other transaction or activity (whether of a commercial industrial, financial, professional or other similar character) into which a State enters or in which it engages otherwise than in the exercise of sovereign authority; but neither paragraph of subsection (1) above applies to a contract of employment between a State and an individual. 4.(1) A State is not immune as respects proceedings relating to a contract of employment between the State and an individual where the contract was made in the United Kingdom or the work is to be wholly or partly performed there. (2) Subject to subsections (3) and (4) below, this section does not apply if at the time when the proceedings are brought the (a) individual is a national of the State concerned; or (b) at the time when the contract was made the individual was neither a national of the United Kingdom nor habitually resident there; or (c) in writing. the parties to the contract have otherwise agreed 16.(1) This Part of this Act does not affect any immunity or privilege conferred by the Diplomatic Privileges Act 1964 or the Consular Relations Act 1968; and (a) section 4 above does not apply to proceedings concerning the employment of the members of a mission within the meaning of the Convention scheduled to the said Act of 1964 or of the members of a consular post within the meaning of the Convention scheduled to the said Act of 1968.
+The Convention scheduled to the Diplomatic Privileges Act of 1964 is the Vienna Convention on Diplomatic Relations (1961).
+Article 1 of that Convention defines members of a mission as including the staff of the mission in the domestic service of the mission.
+It follows that section 16(1)(a) covers employees in the position of Ms Janah and Ms Benkharbouche.
+Since the passing of the State Immunity Act, the United Kingdom has signed, but not ratified, a further treaty, the United Nations Convention on Jurisdictional Immunities of States and their Property (2004).
+The Convention is the result of the long drawn out labours of the United Nations International Law Commission between 1979 and 2004.
+For the most part, it is consistent with the United Kingdom Act, which indeed was one of the models used by the draftsmen.
+But there are differences, in particular relating to contracts of employment, which would require the Act to be amended before the United Kingdom could ratify it.
+To date, however, the United Nations Convention has attracted limited support.
+Twenty eight states have signed it, including the United Kingdom.
+Of these, 21 have ratified it, not including the United Kingdom.
+Libya and Sudan have neither signed nor ratified it.
+It will not come into force until it has been ratified by 30 states.
+The European Convention on Human Rights
+The respondents case is that sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978 are incompatible with article 6 of the Convention, because they unjustifiably bar access to a court to determine their claims.
+Article 4(2)(b) is also said to be incompatible with article 14 read in conjunction with article 6, because it unjustifiably discriminates on grounds of nationality.
+For the moment I shall put the case on discrimination to one side, to return to it later.
+The main point argued before us was based on article 6.
+Article 6 of the Human Rights Convention provides that in the determination of his civil rights and obligations, or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
+Two points are well established, and uncontroversial in this appeal.
+The first is that article 6 implicitly confers a right of access to a court to determine a dispute and not just a right to have it tried fairly: Golder v United Kingdom (1975) 1 EHRR 524.
+The right to a court corresponds to a right which the common law has recognised for more than two centuries.
+As early as the 1760s, Blackstone wrote in his Commentaries, 4th ed (1876), 111: A right of every [man] is that of applying to the courts of justice for redress of injuries.
+Since the law is in England the supreme arbiter of every mans life, liberty and property, courts of justice must at all times be open to the subject and the law be duly administered therein.
+The second uncontroversial point is that although there is no express qualification to a litigants rights under article 6 (except in relation to the public character of the hearing), the right to a court is not absolute under the Convention any more than it is at common law.
+It is an aspect of the rule of law, which may justify restrictions if they pursue a legitimate objective by proportionate means and do not impair the essence of the claimants right: Ashingdane v United Kingdom (1985) 7 EHRR 528, para 57.
+One of the perennial problems posed by the right to a court is that article 6 is concerned with the judicial processes of Convention states, and not with the content of their substantive law.
+When the Duke of Westminster complained in James v United Kingdom (1986) 8 EHRR 123 that the Leasehold Reform Act 1967 allowed qualifying leaseholders to enfranchise their properties without providing any grounds on which the freeholder could object, he was met with the answer (para 81) that article 6 does not in itself guarantee any particular content for (civil) rights and obligations in the substantive law of the Contracting States.
+In Fayed v United Kingdom (1994) 18 EHRR 393, the Court explained (para 65) that it was not at liberty to create through the interpretation of article 6(1) a substantive civil right which has no legal basis in the state concerned, but that it would be inconsistent with the rule of law if the state were to confer immunities from civil liability on large groups or categories of persons.
+These statements have been repeated in much of the subsequent case law of the Strasbourg Court.
+It is not always easy to distinguish between cases in which the petitioners problem arose from some difficulty in accessing the adjudicative jurisdiction of the court, and cases where it arose from the rules of law which fell to be applied when he got there.
+The jurisprudence of the Strasbourg court establishes that, as a general rule, the question whether such cases amount to the creation of immunities engaging article 6 depends on whether the rule which prevents the litigant from succeeding is procedural or substantive: see, among other cases, Fayed v United Kingdom, at para 67; Al Adsani v United Kingdom (2002) 34 EHRR 11, para 47; Fogarty v United Kingdom (2001) 34 EHRR 12, para 25; Roche v United Kingdom (2005) 42 EHRR 30, paras 118 119; Markovic v Italy (2006) 44 EHRR 52, para 94.
+The dichotomy between procedural and substantive rules is not always as straightforward as it sounds, partly because the categories are not wholly distinct and partly because they do not exhaust the field.
+There may be rules of law, such as limitation, which are procedural in the sense that they bar the remedy, not the right, but which operate as a defence.
+There may be rules of law which require proceedings to be dismissed without consideration of the merits.
+These may be substantive rules, such as the foreign act of state doctrine, or procedural rules such as state immunity.
+There may be rules, whether substantive or procedural, which limit the territorial or subject matter jurisdiction of the domestic courts, and which they have no discretion to transgress.
+Or the claimants right may be circumscribed by a substantive defence, such as privilege in the law of defamation.
+Or he may simply have no legal right to assert under the domestic law, for example because the law is that no relevant duty is owed by a particular class of defendants although it would be by defendants generally.
+But these are not refinements with which the Strasbourg court has traditionally been concerned.
+What the Strasbourg court means by a procedural rule is a rule which, whether technically procedural or substantive in character, has the effect of barring a claim for reasons which do not go to its legal merits; that is to say, rules which do not define the existence or extent of any legal obligation.
+State immunity in the jurisprudence of the European Court of Human Rights
+State immunity is a mandatory rule of customary international law which defines the limits of a domestic courts jurisdiction.
+Unlike diplomatic immunity, which the modern law treats as serving an essentially functional purpose, state immunity does not derive from the need to protect the integrity of a foreign states governmental functions or the proper conduct of inter state relations.
+It derives from the sovereign equality of states.
+Par in parem non habet imperium.
+In the modern law the immunity does not extend to acts of a private law character.
+In respect of these, the state is subject to the territorial jurisdiction of the forum in the same way as any non state party.
+In Germany v Italy: Greece Intervening (Jurisdictional Immunities of the State) [2012] ICJ Rep 99, at para 59, the International Court of Justice observed that the rule occupies an important place in international law and international relations.
+It derives from the principle of sovereign equality of States, which, as article 2, para 1, of the Charter of the United Nations makes clear, is one of the fundamental principles of the international legal order.
+The rule, where it applies, is that a state may not be impleaded in a domestic court against its will.
+State immunity may be waived.
+But waiver does not dispense with the rule.
+It is inherent in the rule.
+It is a voluntary submission to the forum courts jurisdiction, which constitutes the consent that has always qualified the rule.
+The International Court of Justice has characterised state immunity as procedural: Democratic Republic of the Congo v Belgium (Arrest Warrant of 11 April 2000) [2002] ICJ Rep 3, paras 59 61; Germany v Italy: Greece Intervening (Jurisdictional Immunities of the State) [2012] ICJ Rep 99, at paras 92 97.
+This is correct, but state immunity is not procedural in the sense that the organisation and practices of the courts are procedural.
+It is procedural in the same sense as that concept has been used in the case law of the European Court of Human Rights.
+In other words, it requires the court to dismiss the claim without determining its merits.
+But it leaves intact the claimants legal rights and any relevant defences, which remain available, for example, to be adjudicated upon in the courts of the state itself.
+This gives rise to difficulty in a case where the rule goes to the courts jurisdiction.
+Proceedings brought against a state entitled to immunity are not a nullity.
+But the courts jurisdiction to entertain the proceedings is limited to examining the basis on which immunity is asserted and determining whether it applies.
+As the International Court of Justice put it in Jurisdictional Immunities of the State (para 60), the question whether the acts relied upon are such as to attract immunity must be determined before that jurisdiction can be exercised, whereas the legality or illegality of the act is something which can be determined only in the exercise of that jurisdiction.
+The impleaded state may consent to the proceedings.
+Where, however, it does not consent, there is no jurisdiction to proceed to the adjudicatory stage.
+The court must dismiss the claim.
+As Lord Bingham observed in Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2007] 1 AC 270, at para 14, article 6 cannot confer on a court a jurisdiction which it does not have, and a state cannot be said to deny access to its courts if it has no access to give.
+In Holland v Lampen Wolfe [2000] 1 WLR 1573, Lord Millett had put the matter in this way, at p 1588: Article 6 requires contracting states to maintain fair and public judicial processes and forbids them to deny individuals access to those processes for the determination of their civil rights.
+It presupposes that the contracting states have the powers of adjudication necessary to resolve the issues in dispute.
+But it does not confer on contracting states adjudicative powers which they do not possess.
+State immunity, as I have explained, is a creature of customary international law and derives from the equality of sovereign states.
+It is not a self imposed restriction on the jurisdiction of its courts which the United Kingdom has chosen to adopt.
+It is a limitation imposed from without upon the sovereignty of the United Kingdom itself.
+The immunity in question in the present case belongs to the United States.
+The United States has not waived its immunity.
+It is not a party to the Convention.
+The Convention derives its binding force from the consent of the contracting states.
+The United Kingdom cannot, by its own act of acceding to the Convention and without the consent of the United States, obtain a power of adjudication over the United States which international law denies it.
+The Strasbourg court has dealt with many cases involving claims to state immunity since it first grappled with these matters in Waite and Kennedy v Germany (2000) 30 EHRR 261.
+Although the reasoning has been somewhat modified over the years, its position has remained constant.
+Notwithstanding the difficulty pointed out in the preceding paragraph, it has always treated article 6 as being engaged by a successful claim to state immunity.
+But it has applied the Convention in the light of article 31(3) of the Vienna Convention of the Law of Treaties, which requires an international treaty to be interpreted in the light of (inter alia) any relevant rules of international law.
+Against that background, it has always held that the proper application of the rule of state immunity was justifiable because it was derived from a fundamental principle of international law.
+The only cases in which it has ever held article 6 to have been violated are those in which it has found that a claim to state immunity was unfounded in international law.
+It is convenient to start with three judgments delivered on the same day by a similarly constituted Grand Chamber: Al Adsani v United Kingdom (2001) 34 EHRR 11, McElhinney v Ireland (2001) 34 EHRR 13 and Fogarty v United Kingdom (2001) 34 EHRR 12.
+In Al Adsani, the applicant had been barred by state immunity from proceeding in England against the government of Kuwait in an action claiming damages for torture.
+The Court held (para 48) that article 6 was engaged, because the grant of immunity is seen not as qualifying a substantive right but as a procedural bar on the national courts power to determine the right.
+It rejected the submission of the British government (para 44) that article 6 could not extend to matters which under international law lay outside the jurisdiction of the state.
+However, it held that the bar was justifiable, for reasons stated at paras 54 56: 54.
+The Court must first examine whether the limitation pursued a legitimate aim.
+It notes in this connection that sovereign immunity is a concept of international law, developed out of the principle par in parem non habet imperium, by virtue of which one State shall not be subject to the jurisdiction of another State.
+The Court considers that the grant of sovereign immunity to a State in civil proceedings pursues the legitimate aim of complying with international law to promote comity and good relations between States through the respect of another States sovereignty. 55.
+The Court must next assess whether the restriction was proportionate to the aim pursued.
+It recalls that the Convention has to be interpreted in the light of the rules set out in the Vienna Convention of 23 May 1969 on the Law of Treaties, and that article 31(3)(c) of that treaty indicates that account is to be taken of any relevant rules of international law applicable in the relations between the parties.
+The Convention, in including article 6, cannot be interpreted in a vacuum.
+The Court must be mindful of the Conventions special character as a human rights treaty, and it must also take the relevant rules of international law into account.
+The Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part, including those relating to the grant of State immunity.
+It follows that measures taken by a High Contracting 56.
+Party which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to court as embodied in article 6(1).
+Just as the right of access to court is an inherent part of the fair trial guarantee in that article, so some restrictions on access must likewise be regarded as inherent, an example being those limitations generally accepted by the community of nations as part of the doctrine of State immunity.
+McElhinney v Ireland (2001) 34 EHRR 13 arose out of a claim against the British government in the courts of Ireland for psychological injury arising from an incident at the border with Northern Ireland.
+The Court rejected the allegation that by upholding the assertion of immunity the Irish court had violated article 6, in language substantially identical to that employed in Al Adsani.
+Fogarty v United Kingdom (2001) 34 EHRR 12 was the first of a number of cases to come before the Strasbourg court involving employment disputes between a state and non diplomatic staff at one of its embassies.
+It concerned a sex discrimination claim brought in England against the United States by a secretary employed at US embassy in London.
+Once again, the Court held in substantially identical language that article 6(1) was engaged but not violated.
+The importance of the decision for present purposes lies in the additional observations which the Court addressed specifically to diplomatic employment disputes.
+The Court said at para 37 that: on the material before it, there appears to be a trend in international and comparative law towards limiting State immunity in respect of employment related disputes.
+However, where the proceedings relate to employment in a foreign mission or embassy, international practice is divided on the question whether State immunity continues to apply and, if it does so apply, whether it covers disputes relating to the contracts of all staff or only more senior members of the mission.
+Certainly, it cannot be said that the United Kingdom is alone in holding that immunity attaches to suits by employees at diplomatic missions or that, in affording such immunity, the United Kingdom falls outside any currently accepted international standards.
+That being so the Court concluded (para 39) that in conferring immunity on the United States in the present case by virtue of the provisions of the 1978 Act, the United Kingdom cannot be said to have exceeded the margin of appreciation allowed to States in limiting an individual's access to court.
+These observations are consistent with the view that in the absence of a recognised rule of customary international law, article 6 is satisfied if the rule applied by a Convention state lies within the range of possible rules consistent with current international standards.
+The first case in which the European Court of Human Rights held that the recognition of state immunity violated article 6(1) of the Convention was Cudak v Lithuania (2010) 51 EHRR 15.
+The applicant was a secretary and switchboard operator employed in the Polish embassy in Vilnius, Lithuania.
+The Supreme Court of Lithuanias decision appears to have been closely based on the Strasbourg courts decision in Fogarty.
+It had upheld Polands claim to state immunity on the ground that: there was no uniform international practice of states whereby the members of staff of foreign states diplomatic missions who participated in the exercise of the public authority of the states they represented could be distinguished from other members of staff.
+As there were no legally binding international rules, it was for each state to take its own decisions in such matters. (para 24) The European Court of Human Rights reiterated the general principles governing the application of article 6 in such cases, which they had previously laid down in Fogarty.
+They held that although that had been a complaint about the employers recruitment practices, the same principles applied to claims arising out of a subsisting employment relationship.
+However, they held that the Lithuanian courts had exceeded the margin of appreciation available to them.
+The reason was that there were now binding international rules on contracts of employment.
+The court found these rules in article 11 of the International Law Commissions draft articles of 1991 on Jurisdictional Immunities of States and their Property.
+The draft articles were part of the travaux preparatoires for what ultimately became, 13 years later, the United Nations Convention.
+Draft article 11(1) provided that there was no immunity in respect of contracts of employment to be performed in the forum state, save in five cases specified in draft article 11(2).
+The five cases were: (a) the employee has been recruited to perform functions closely related to the exercise of governmental authority; the subject of the proceeding is the recruitment, renewal (b) of employment or reinstatement of an individual; (c) the employee was neither a national nor a habitual resident of the State of the forum at the time when the contract of employment was concluded; (d) time when the proceeding is instituted; or (e) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject matter of the proceeding. the employee is a national of the employer State at the The Strasbourg court recognised that the draft articles were not a treaty and that Lithuania had not ratified the Convention ultimately adopted.
+But it held that article 11 was nevertheless binding on the state because it reflected customary international law: see paras 64 67.
+The court considered that none of the five exceptions in draft article 11(2) applied.
+In particular, exception (a) did not apply.
+It then reviewed the Lithuanian Supreme Courts findings of fact and concluded that it had given inadequate reasons for regarding the applicants employment as being related to the exercise of governmental authority: 70.
+The Court observes in particular that the applicant was a switchboard operator at the Polish Embassy whose main duties were: recording international conversations, typing, sending and receiving faxes, photocopying documents, providing information and assisting with the organisation of certain events.
+Neither the Lithuanian Supreme Court nor the respondent Government have shown how these duties could objectively have been related to the sovereign interests of the Polish Government.
+Whilst the schedule to the employment contract stated that the applicant could have been called upon to do other work at the request of the head of mission, it does not appear from the case file nor has the Government provided any details in this connection that she actually performed any functions related to the exercise of sovereignty by the Polish State.
+In its judgment of June 25, 2001 the Supreme Court 71. stated that, in order to determine whether or not it had jurisdiction to hear employment disputes involving a foreign mission or embassy, it was necessary to establish in each case whether the employment relationship in question was one of a public law nature (acta jure imperii) or of a private law nature (acta jure gestionis).
+In the present case, however, the Supreme Court found that it had been unable to obtain any information allowing it to establish the scope of the applicant's actual duties.
+It therefore referred solely to the title of her position, and to the fact that Poland had invoked immunity from jurisdiction, in concluding that the duties entrusted to her had facilitated, to a certain degree, the exercise by the Republic of Poland of its sovereign functions.
+Some further explanation is called for concerning the Strasbourg Courts treatment of the ILCs draft articles of 1991, since it is criticised by Ms Karen Steyn QC, for the Secretary of State on grounds that I think misunderstand it.
+The Court began its observations on this question by noting (para 64) that the application of absolute state immunity has, for many years, clearly been eroded.
+This is a reference to the progressive adoption of the restrictive doctrine.
+The court treated draft article 11 as reflecting the adoption of the restrictive doctrine in the domain of employment.
+As regards the critical parts of draft article 11, this is plainly correct.
+The exceptions which were relevant in Ms Cudaks case were (a) and (b).
+Of these, (a) directly imported the classic distinction between acts jure imperii and acts jure gestionis.
+As to (b), the International Law Commissions commentary on the draft articles suggested that it confirmed the existing practice of states by which state immunity extended to the recruitment, renewal of employment and reinstatement of an employee, these being dependent on policy considerations lying within a states discretionary power and likely to have been determined as an exercise of governmental authority.
+A substantial body of domestic case law from various jurisdictions is cited in support of this statement: see Report of the International Law Commission on the work of its forty third session, 29 April 19 July 1991 [A/46/10], pp 43 44, para (10).
+The Strasbourg court presumably based its reasoning on the draft articles of 1991 rather than the final text of the Convention because the relevant proceedings in Lithuania occurred in 2000 and 2001, before the final text of the Convention was adopted.
+But although the final text of article 11 differs in significant respects from the draft article, exception (a) is substantially the same in the final version, and exception (b) (renumbered (c)) is identical.
+The Court was therefore right to regard these provisions of draft article 11 as applying the restrictive doctrine of state immunity to contracts of employment, and as foreshadowing, in that respect, the terms of the Convention.
+I do not read the Strasbourg Court as having assumed that everything else in draft article 11 was declaratory of existing customary international law.
+It did not need to, because the other exceptions in article 11(2) did not affect the issue.
+Ms Cudak appears to have been a national of or habitually resident in Lithuania, and there was no contractual submission to the local forum.
+Exceptions (c), (d) and (e) therefore did not arise.
+Sabeh El Leil v France (2011) 54 EHRR 14 arose out of another unfair dismissal claim, this time brought in the French courts by the head of the accounts department of the Kuwaiti embassy in Paris.
+In this case, the final decision of the French courts barring the claim on grounds of state immunity was handed down after the adoption of the United Nations Convention.
+After reiterating the principle on which the Strasbourg court had always held article 6 to be engaged in such cases, the Grand Chamber summarised its case law as follows (paras 51 52): 51.
+Therefore, in cases where the application of the rule of state immunity from jurisdiction restricts the exercise of the right of access to a court, the Court must ascertain whether the circumstances of the case justified such restriction. 52.
+The Court further reiterates that such limitation must pursue a legitimate aim and that state immunity was developed in international law out of the principle par in parem non habet imperium, by virtue of which one state could not be subject to the jurisdiction of another.
+It has taken the view that the grant of immunity to a state in civil proceedings pursues the legitimate aim of complying with international law to promote comity and good relations between states through the respect of another state's sovereignty.
+The Court then restated the view which it had taken in Cudak, that article 11 of the ILCs draft articles of 1991, as now enshrined in the 2004 Convention represented customary international law binding as such even on those states (such as France) which had not ratified it at the relevant time.
+In saying this, the Court must have had in mind exceptions (a) and (b) in draft article 11(2), since these are the only potentially relevant exceptions subsequently enshrined in the Convention.
+The rest of article 11(2) in the final version is very different from the draft.
+The Court found that article 6 had been violated because the Cour de Cassation had not had regard to customary international law as embodied in article 11 of the United Nations Convention and had not given adequate reasons for finding that some of the applicants duties involved participating in exercises of governmental authority.
+The reasoning in Cudak and Sabeh el Leil was subsequently applied by the Strasbourg court in Wallishauser v Austria (Application 156/04, Judgment of 19 Nov 2012) and Radunovi v Montenegro (Applications 45197/13, 53000/13 and 73404/13, Judgment 25 Oct 2016), all of them cases involving technical and administrative staff of a foreign embassy.
+The Court of Appeal in the present cases thought that it was questionable whether article 11 of the draft articles was in fact a definitive statement of customary international law in embassy employment disputes.
+For my part, I would agree that some of the Strasbourg courts observations about article 11 have simply served to sow confusion.
+Article 11 codifies customary international law so far as it applies the restrictive doctrine to contracts of employment.
+That would have been enough for Ms Cudaks and Mr El Leils purposes.
+So far as article 11 goes beyond the application of the restrictive doctrine, its status is uncertain.
+I shall expand on this point below.
+It would perhaps have been better if the Strasbourg court had simply said that employment disputes should be dealt with in accordance with the restrictive doctrine instead of in accordance with an article of a treaty which is not in force and which a large majority of states have neither signed nor ratified.
+But this is a point of presentation, not of substance.
+The Threshold Issue: Jurisdiction
+Ms Steyn for the Secretary of State has raised a threshold issue.
+She contends that a decision of a domestic court that a state is entitled to immunity does not engage article 6 at all, because its effect is that there is no jurisdiction capable of being exercised and no access to a court capable of being withheld.
+As I have pointed out, this is a point which was powerfully made in the House of Lords in Holland v Lampen Wolfe [2000] 1 WLR 1573 and Jones v Saudi Arabia [2007] 1 AC 270, but was rejected by the Grand Chamber in Al Adsani.
+In Jones v United Kingdom (2014) 59 EHRR 1, a chamber of the European Court of Human Rights was invited to depart from Al Adsani on this point, but it declined to do so, adhering to its long standing distinction between procedural and substantive bars to the exercise of jurisdiction.
+Ms Steyn now invites us to resolve this issue in accordance with the views of the House of Lords.
+In my view, there may well come a time when this court has to choose between the view of the House of Lords and that of the European Court of Human Rights on this fundamental question.
+But the premise on which the question arises is that there is a rule of international law which denies the English court jurisdiction in the instant case.
+In both Jones and Lampen Wolfe, the Appellate Committee had satisfied itself that there was.
+I would not be willing to decide which of the competing views about the implications of a want of jurisdiction is correct, unless the question actually arose.
+So the first question which I shall address is what is the relevant rule of international law.
+Identifying Customary International Law
+To identify a rule of customary international law, it is necessary to establish that there is a widespread, representative and consistent practice of states on the point in question, which is accepted by them on the footing that it is a legal obligation (opinio juris): see Conclusions 8 and 9 of the International Law Commissions Draft Conclusions on Identification of Customary International Law (2016) [A/71/10].
+There has never been any clearly defined rule about what degree of consensus is required.
+The editors of Brownlies Principles of Public International Law, 8th ed (2012), 24, suggest that complete uniformity of practice is not required, but substantial uniformity is.
+This accords with all the authorities.
+In the words of the International Court of Justice The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule.
+In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), (1986) ICJ Rep, 14, at para 186.
+What is clear is that substantial differences of practice and opinion within the international community upon a given principle are not consistent with that principle being law: Fisheries Case (United Kingdom v Norway), (1951) ICJ Rep 116, 131.
+In view of the emphasis placed by the European Court of Human Rights on the United Nations Convention and its antecedent drafts, it is right to point out that a treaty may have no effect qua treaty but nevertheless represent customary international law and as such bind non party states.
+The International Law Commissions Draft Conclusions on Identification of Customary International Law (2016) [A/71/10], propose as Conclusion 11(1): A rule set forth in a treaty may reflect a rule of customary international law if it is established that the treaty rule: (a) codified a rule of customary international law existing at the time when the treaty was concluded; (b) has led to the crystallization of a rule of customary international law that had started to emerge prior to the conclusion of the treaty; or (c) has given rise to a general practice that is accepted as law (opinio juris) thus generating a new rule of customary international law.
+It would be difficult to say that a treaty such as the United Nations Convention which has never entered into force had led to the crystallisation of a rule of customary international law that had started to emerge before it was concluded.
+For the same reason, it is unlikely that such a treaty could have given rise to a general practice that is accepted as law.
+These difficulties are greatly increased in the case of the United Nations Convention by the consideration that in the 13 years which have passed since it was adopted and opened for signature it has received so few accessions.
+The real significance of the Convention is as a codification of customary international law.
+In Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2007] 1 AC 270, Lord Bingham described it (para 26) as the most authoritative statement available on the current international understanding of the limits of state immunity in civil cases.
+However, it is not to be assumed that every part of the Convention restates customary international law.
+As its preamble recites, it was expected to contribute to the codification and development of international law and the harmonisation of practice in this area.
+Like most multilateral conventions, its provisions are based partly on existing customary rules of general acceptance and partly on the resolution of points on which practice and opinion had previously been diverse.
+It is therefore necessary to distinguish between those provisions of the Convention which were essentially declaratory and those which were legislative in the sense that they sought to resolve differences rather than to recognise existing consensus.
+That exercise would inevitably require one to ascertain how customary law stood before the treaty.
+The margin of appreciation: a tenable view
+The Secretary of States case is that there is no sufficient consensus on the application of state immunity to a contract for the employment of non diplomatic staff of a foreign diplomatic mission, to found any rule of customary international law on the point.
+He submits that two consequences follow from this.
+The first is that article 6 of the Human Rights Convention is satisfied if the rule of the forum state reflects generally recognised principles of international law.
+For this purpose, it is enough for the forum state to apply a tenable view of what international law is, or at any rate that its domestic law applies a solution that is not outside the currently accepted international standards treated as a benchmark in Fogarty.
+He submits that it is not necessary to show that international law requires the foreign state to be treated as immune.
+The second consequence is said to be that in the absence of a rule of customary international law justifying some other solution, the state employer is entitled to absolute immunity.
+This is because, in the Secretary of States submission, the restrictive doctrine of state immunity operates by grafting exceptions onto the principle of absolute immunity, so that unless and until a relevant exception has achieved the status of customary international law, the immunity remains unqualified.
+I can deal quite shortly with the suggested distinction between reflects and requires, for in my opinion it is misconceived.
+The argument is based on the observation of the European Court of Human Rights in Al Adsani (para 56) that measures taken by a High Contracting Party which reflect generally recognised rules of public international law are within a states margin of appreciation.
+That observation is repeated in most of the subsequent cases: see Fogarty (para 36), Cudak (para 57), Sabeh El Leil (para 49).
+But in my view the distinction proposed by the Secretary of State is a purely semantic one.
+International law is relevant to the operation of article 6 of the Human Rights Convention because, in accordance with article 31(3)(c) of the Vienna Convention on the Law of Treaties, the Human Rights Convention is interpreted in the light of any relevant rules of international law applicable in the relations between the parties.
+It is therefore necessary to ask what is the relevant rule of international law by reference to which article 6 must be interpreted.
+The relevant rule is that if the foreign state is immune then, as the International Court of Justice has confirmed in Jurisdictional Immunities of the State, the forum state is not just entitled but bound to give effect to that immunity.
+If the foreign state is not immune, there is no relevant rule of international law at all.
+What justifies the denial of access to a court is the international law obligation of the forum state to give effect to a justified assertion of immunity.
+A mere liberty to treat the foreign state as immune could not have that effect, because in that case the denial of access would be a discretionary choice on the part of the forum state: see Al Jedda v United Kingdom (2011) 53 EHRR 23; Nada v Switzerland (2012) 56 EHRR 593, paras 180, 195; Perincek v Switzerland (2016) 63 EHRR 6, paras 258 259.
+To put the same point another way, if the legitimate purpose said to justify denying access to a court is compliance with international law, anything that goes further in that direction than international law requires is necessarily disproportionate.
+I conclude that unless international law requires the United Kingdom to treat Libya and Sudan as immune as regards the claims of Ms Janah and Ms Benkharbouche, the denial to them of access to the courts to adjudicate on their claim violates article 6 of the Human Rights Convention.
+There are circumstances in which an English court considering the international law obligations of the United Kingdom may properly limit itself to asking whether the United Kingdom has acted on a tenable view of those obligations.
+A suggestion to this effect by Sir Philip Sales and Joanne Clement, International law in domestic courts: the developing framework (2008) 124 LQR 388, 405 407 was tentatively endorsed by Lord Brown of Eaton under Heywood in R (Corner House Research) v Serious Fraud Office [2009] 1 AC 756, at para 68.
+Thus the court may in principle be reluctant to decide contentious issues of international law if that would impede the executive conduct of foreign relations.
+Or the rationality of a public authoritys view on a difficult question of international law may depend on whether its view of international law was tenable, rather than whether it was right.
+Both of these points arose in Corner House.
+Or the court may be unwilling to pronounce upon an uncertain point of customary international law which only a consensus of states can resolve.
+As Lord Hoffmann observed in Jones v Saudi Arabia (para 63), it is not for a national court to develop international law by unilaterally adopting a version of that law which, however desirable, forward looking and reflective of values it may be, is simply not accepted by other states.
+But I decline to treat these examples as pointing to a more general rule that the English courts should not determine points of customary international law but only the tenability of some particular view about them.
+If it is necessary to decide a point of international law in order to resolve a justiciable issue and there is an ascertainable answer, then the court is bound to supply that answer.
+In the present cases, the law requires us to measure sections 4(2)(b) and 16(1)(a) against the requirements of customary international law, something that we cannot do without deciding what those requirements are.
+I do not read the Strasbourg court as having said anything very different in Fogarty.
+The court considered (para 37) that although there had been a trend in favour of the restrictive doctrine of state immunity, there was too much diversity of state practice in the specific area of embassy staff to enable them to say that the restrictive doctrine applied to them.
+In those circumstances they thought it sufficient that the United Kingdom had acted on a view of international law which, although not the only possible one, was within currently accepted international standards.
+But this is not the same point as the one made by the Secretary of State, for it applies only if there is no relevant and identifiable rule of international law.
+If there is such a rule, the court must identify it and determine whether it justifies the application of state immunity.
+That is what the Strasbourg court did in Cudak and Sabeh El Leil, and what it criticised the Lithuanian Supreme Court and the French Court de Cassation for failing to do in those cases.
+For reasons which I shall explain, I find the view expressed in Fogarty that there was no relevant and identifiable rule of international law surprising, but that is another matter.
+The starting point: absolute or restrictive immunity?
+The fundamental difference between the parties to this appeal concerns the starting point.
+On the footing that customary international law must require the United Kingdom to treat Libya and Sudan as immune, the Secretary of State submits that it does.
+This is because in his submission state immunity is absolute unless the case is brought within an internationally recognised exception to it.
+This submission, if it is correct, would considerably broaden the scope of state immunity in customary international law, by extending it to any group of claimants about whom there was a diversity of state practice.
+But in my view, it is not correct.
+The rule of customary international law is that a state is entitled to immunity only in respect of acts done in the exercise of sovereign authority.
+In the absence of a special rule to some different effect applicable to employees in the position of Ms Janah and Ms Benkharbouche, that is the default position.
+It is true that the State Immunity Act 1978 adopts the drafting technique of stating a presumptive immunity subject to exceptions.
+Section 1 provides that a state is immune except as provided in the following sections of Part I.
+The same drafting technique is employed in other national legislation, especially in common law jurisdictions, for example the United States, Canada and Australia.
+As applied to international law, the submission is lent a certain superficial plausibility by the fact that the United Nations Convention has adopted the same drafting technique.
+Article 5 provides for a general immunity subject to the provisions of this Convention.
+In Jones v Saudi Arabia, Lord Bingham relied on the way that the United Nations Convention was drafted as showing that a state was immune in respect of everything that was not the subject of an express exception, and concluded that the immunity extended to torture because torture was not the subject of any express exception: see paras 8 9 (Lord Bingham), and cf para 47 (Lord Hoffmann).
+I do not regard these considerations as decisive of the present issue.
+No one doubts that as a matter of domestic law, Part I of the State Immunity Act is a complete code.
+If the case does not fall within one of the exceptions to section 1, the state is immune.
+But the present question is whether the immunity thus conferred is wider than customary international law requires, and that raises different considerations.
+In the first place, it is necessary to read the grant of the immunity in article 5 of the United Nations Convention together with the exceptions which follow, as an organic whole.
+The exceptions are so fundamental in their character, so consistent in their objective and so broad in their effect as to amount in reality to a qualification of the principle of immunity itself rather than a mere collection of special exceptions.
+Secondly, it is important when doing this to distinguish between a drafting technique and a principle of law.
+The travaux prparatoires of the United Nations Convention show that the technique of stating a general rule of immunity subject to exceptions, was highly contentious.
+This was partly because it might be taken as an implicit recognition that absolute immunity was the basic rule, something which many states did not accept; and partly because it was thought that it would lead to undue rigidity and thereby impede the future development of customary international law.
+These differences are summarised in the Report of the International Law Commission on the Work of its thirty eighth session [A/41/10] ILC Yearbook (1986), ii(2), 16, and in the valuable commentary of OKeefe and Tams (ed), The United Nations Convention of Jurisdictional Immunities of States and their Property (2013), 99 101.
+It is clear that the draftsmans objective was to remain neutral as between the competing doctrines said to represent the current state of international law.
+Various proposals were made with a view to achieving this and avoiding undue rigidity.
+In particular, it was proposed that what became article 5 should provide that a state was immune subject to the provisions of the present articles [and the relevant rules of general international law applicable in the matter].
+This provoked much discord, and the bracketed words were ultimately dropped on the ground that they made no difference.
+In its commentary on the draft articles of 1991, the International Law Commission explained that this was because it was considered that any immunity or exception to immunity accorded under the present articles would have no effect on general international law and would not prejudice the future development of State practice Article 5 is also to be understood as the statement of the principle of State immunity forming the basis of the present draft articles and does not prejudge the question of the extent to which the articles, including article 5, should be regarded as codifying the rules of existing international law.
+Draft articles on Jurisdictional Immunities of States and their Property, with commentaries (1991), 23 (para (3) under article 5) Thirdly, as I have already observed, the United Nations Convention has for the time being no binding effect qua treaty.
+All that can be said about it is that so far as it seeks to codify existing customary international law, it is evidence of what that law is.
+But even where it is declaratory, it can never be definitive, if only in order to allow for the future development of state practice.
+Hence the fifth recital in its preamble (Affirming that the rules of customary law continue to govern matters not regulated by the provisions of the present Convention), which was inserted in the course of the debates about article 11 to which I have referred.
+Fourthly, the House of Lords in Jones v Saudi Arabia was not concerned with the question whether the starting point was absolute or restrictive immunity.
+It was concerned with the question whether torture and other breaches of peremptory norms of international law constituted an implied additional limitation upon an immunity which was unquestionably recognised by international law.
+Without an implied limitation of this kind, a state would have been immune in international law as regards an allegation of torture under either the absolute or the restrictive doctrine because, as the House of Lords held, torture is by definition a governmental act: see paras 16, 19 (Lord Bingham), and 83 85 (Lord Hoffmann).
+The main difficulty about the Secretary of States submission is a more fundamental one, namely that it is not consistent with the way that the law of state immunity has developed.
+Unlike diplomatic immunity, which is based mainly on an international consensus established by writers and governmental practice over many centuries, state immunity was developed during the nineteenth and twentieth centuries primarily by municipal courts.
+In the words of the Special Rapporteur of the International Law Commission, presenting in 1980 the first draft of what became the United Nations Convention, their decisions constituted a great and divergent volume of municipal jurisprudence: [A/35/10] ILC Yearbook (1980), ii(2), 143.
+Before the age of state trading organisations, there were few occasions for testing the limits of state immunity.
+States rarely did acts in peacetime within the territory of other states, other than conduct diplomatic relations, and that was the subject of a distinct and far older international law immunity.
+Leaving aside the rather special case of the immunity of personal sovereigns visiting the forum state, the only other acts which a sovereign performed in the territory of another state involved the presence of state owned ships in its ports or the placing of public procurement contracts.
+The latter were generally for military or diplomatic purposes, and were therefore closely related to the inherently governmental acts of the state, even if they were strictly speaking acts of a private law character.
+The earliest notable landmark was the judgment of the Supreme Court of the United States in The Schooner Exchange v McFaddon 11 US 116 (1812), delivered by Chief Justice Marshall.
+The Exchange was a trading vessel belonging to two American merchants, which was captured at sea by French ships of war, converted into an armed cruiser and incorporated into the French navy.
+When the ship put in to the port of Philadelphia, its former owners claimed possession.
+The Supreme Court held that a ship of war in the possession of a foreign state was immune from any proceedings in rem.
+Marshall CJ founded the rule on an implied exception to the territorial sovereignty of states for certain classes of act done there by a foreign state, which was based on the usages and received obligations of the civilised world.
+At pp 144 145, he drew a distinction between trading vessels and ships of war.
+It may safely be affirmed that there is a manifest distinction between the private property of the person who happens to be a prince and that military force which supports the sovereign power and maintains the dignity and the independence of a nation.
+A prince, by acquiring private property in a foreign country, may possibly be considered as subjecting that property to the territorial jurisdiction; he may be considered as so far laying down the prince and assuming the character of a private individual, but this he cannot be presumed to do with respect to any portion of that armed force which upholds his Crown and the nation he is entrusted to govern.
+The Exchange was a decision on the immunity of the property of a foreign state, a context in which the immunities recognised by international law have generally been wider than those available in actions for breach of duty.
+But it will be seen even in that context, at its origins the immunity was not conceived to be absolute.
+It was assumed to extend only to property employed for public or governmental purposes.
+The same assumption was made in the earliest English cases.
+In Duke of Brunswick v King of Hanover (1848) 2 HL Cas 1 the House of Lords held, in the words of Lord Chancellor Cottenham (p 17), that a foreign Sovereign, coming into this country, cannot be made responsible here for an act done in his sovereign character in his own country; whether it be an act right or wrong, whether according to the constitution of that country or not, the Courts of this country cannot sit in judgment upon an act of a Sovereign, effected by virtue of his Sovereign authority abroad.
+In De Haber v Queen of Portugal (1851) 7 QB 196, 207 Lord Campbell CJ gave it as his opinion that an action cannot be maintained in any English Court against a foreign potentate, for anything done or omitted to be done by him in his public capacity as representative of the nation of which he is the head; and that no English Court has jurisdiction to entertain any complaints against him in that capacity.
+The question whether a corresponding immunity applied to a sovereigns non sovereign acts arose for the first time in England in The Charkieh (1872 5) LR 4 A & E 59, a collision action brought against a ship which belonged to the Khedive of Egypt and flew the flag of the Ottoman navy, but was employed for ordinary commercial purposes and at the time was under charter to a British trading house.
+Sir Robert Phillimore, sitting in the Admiralty Court, held that the vessel was not immune because the Khedive was not a sovereign but an officer of the Ottoman Porte.
+However, he went on to hold that there would have been no immunity in any event, because the use of state property for trading purposes was an implicit waiver of any immunity attaching to the state.
+At pp 99 100, he stated that no principle of international law, and no decided case, and no dictum of jurists of which I am aware, has gone so far as to authorize a sovereign prince to assume the character of a trader, when it is for his benefit; and when he incurs an obligation to a private subject to throw off, if I may so speak, his disguise, and appear as a sovereign, claiming for his own benefit, and to the injury of a private person, for the first time, all the attributes of his character.
+Six years later, Sir Robert had to deal with the same issue in The Parlement Belge (1879) 4 PD 129, another collision action brought against a ship belonging to the Belgian state, which was employed as a mail packet but also carried some passengers and freight.
+He followed his own judgment in The Charkieh, holding that any immunity would not include a vessel engaged in commerce, whose owner is (to use the expression of Bynkershoek, De Leg Mercatore) strenue mercatorem agens.
+The Court of Appeal overruled this decision.
+The judgment of the court (delivered by Brett LJ) was authority for two points.
+The first, which was technically obiter dictum, was that by extension from the personal immunity of an ambassador, which at that time was absolute, the courts could not exercise any jurisdiction in personam against a sovereign.
+The second, which was the ratio of the decision, was that immunity extended to proceedings in rem against the public property of any state which is destined to public use.
+The ground on which the appeal was allowed was that the vessel was employed substantially for public purposes as a mail packet.
+The court declined to decide whether it would have been immune if it had been used wholly or substantially for ordinary trading.
+It was enough that the incidental carriage of passengers and freight did not deprive Belgium of the immunity to which the substantially public purpose of its operations entitled it.
+Cf the analysis of the decision by Lord Cross of Chelsea, delivering the advice of the Privy Council in The Philippine Admiral [1977] AC 377, 391 392.
+Nonetheless, the Parlement Belge was for many years regarded as authority for the absolute immunity of state property.
+The extreme point of this tendency was reached with the decision of the Court of Appeal in The Porto Alexandre [1920] P 30.
+In that case there was no suggestion that the vessel was in use for any public purpose.
+She was engaged in ordinary trading operations.
+But the Parlement Belge was treated as warranting the absolute immunity of state owned ships from actions in rem.
+The decision provoked controversy well before the Privy Council held in The Philippine Admiral [1977] AC 373 that it had been wrongly decided.
+In Compania Naviera Vascongada v Steamship Cristina (The Cristina) [1938] AC 485, a Spanish trading ship had been requisitioned by the Spanish government while on the high seas in order to assist the republican government of Spain to put down the nationalist rebellion.
+Possession of her had then been taken in the port of Cardiff by the Spanish consul there.
+The speeches need to be read in conjunction with the fuller account of the facts and arguments which are reported at (1938) 60 Lloyds Rep 147.
+It was not in doubt that the Spanish consul had taken possession of it for public purposes.
+The real issues were whether an action in rem against a state owned ship impleaded the foreign state; and whether the English courts should recognise an extraterritorial decree of the Spanish state.
+The House of Lords rejected the argument about the extraterritorial operation of the decree, and dismissed the action on the ground (i) that an action in rem against a state owned ship indirectly impleaded the state, or indeed (per Lord Wright, at p 505) directly impleaded it; and (ii) that however she had previously been employed by her owners, she was intended for public purposes in the hands of the Spanish government.
+An action for possession could not therefore proceed.
+The interest of the case for present purposes lies in the divergence of views about the Porto Alexandre.
+Lord Atkin and Lord Wright considered that the immunity of states was absolute and applied irrespective of the purpose for which a ship was in the states possession.
+But the other members of the Appellate Committee doubted this, primarily on the ground that it could be correct only if there was a sufficient international consensus to that effect.
+However, no attempt had been made in the earlier cases to establish that there was.
+Lord Thankerton observed (pp 495 496) that it may be argued that the judgment of Brett LJ in the Parlement Belge did not authorise the extension of state immunity to property in commercial use since proceedings against such property were not to be regarded as inconsistent with the independence and equality of the state represented by such owner.
+He pointed out that the Court of Appeal in the Porto Alexandre had made no inquiry as to whether such an exemption was generally agreed to by the nations, and it seems to be common knowledge that they have not so agreed.
+Lord Macmillan shared these doubts, remarking at p 498: I confess that I should hesitate to lay down that it is part of the law of England that an ordinary foreign trading vessel is immune from civil process within this realm by reason merely of the fact that it is owned by a foreign State, for such a principle must be an importation from international law and there is no proved consensus of international opinion or practice to this effect.
+On the contrary the subject is one on which divergent views exist and have been expressed among the nations.
+When the doctrine of the immunity of the person and property of foreign sovereigns from the jurisdiction of the Courts of this country was first formulated and accepted it was a concession to the dignity, equality and independence of foreign sovereigns which the comity of nations enjoined.
+It is only in modern times that sovereign States have so far condescended to lay aside their dignity as to enter the competitive markets of commerce, and it is easy to see that different views may be taken as to whether an immunity conceded in one set of circumstances should to the same extent be enjoyed in totally different circumstances.
+Lord Maugham said (pp 519 520): My Lords, I cannot myself doubt that, if the Parlement Belge had been used solely for trading purposes, the decision would have been the other way.
+Almost every line of the judgment would have been otiose if the view of the Court had been that all ships belonging to a foreign Government even if used purely for commerce were entitled to immunity The judgments in The Porto Alexandre seem to me to have omitted any consideration of what I deem to be a vital point namely, the fact that other countries while they admit the immunity as regards ships of war and other public ships have not been at all agreed that the same immunity ought to be granted to ships and cargoes engaged in ordinary trading voyages.
+In this uncertain state of English law, Lord Simon, delivering the advice of the Privy Council in Sultan of Johore v Abubakar Tunku Aris Bendahar [1952] AC 318, 343, observed: Their Lordships do not consider that there has been finally established in England any absolute rule that a foreign independent sovereign cannot be impleaded in our courts in any circumstances.
+It seems desirable to say this much having regard to inferences that might be drawn from some parts of the Court of Appeals judgment in The Parlement Belge, and from the speech of Lord Atkin in The Cristina.
+The doubts expressed in The Cristina by Lord Thankerton, Lord Macmillan and Lord Maugham about the international law basis for a rule of absolute immunity were justified, as a review of pre 1945 decisions in different jurisdictions demonstrates.
+For what follows, I am indebted to the extensive reviews of this large body of material by Sir Hersch Lauterpacht in his influential article The Problem of Jurisdictional Immunities of Foreign States, 28 BYIL (1951), 220, 250 272, by the German Bundesverfassungsgericht in Claim against the Empire of Iran (1963), Entscheidungen des Bundesverfassungsgerichts, 16 (1964), 27 (partially translated in 45 ILR 257), and by Fox, The Law of State Immunity, 3rd ed (2013), Ch 6, and Dunbar, Controversial Aspects of Sovereign Immunity in the Case law of some States, (1971) 132 Recueil des Cours, 197.
+Broadly speaking, these show that states which adopted the absolute doctrine of state immunity generally did so on one or other of two grounds.
+One was that the sovereign equality of states implied an entire absence of jurisdiction by the courts on one state over another.
+The other was that while there was in principle a distinction between the public and private acts of a state, the distinction should depend on the states purpose in doing the relevant act and not on its juridical character, so that even trading activities were immune if they were carried on in the public interest.
+The two approaches are very different but in practice they lead to the same result, except perhaps in the case of the private acts of personal sovereigns.
+As far as the common law world is concerned, the English courts, after a period of hesitation, finally opted for the first analysis.
+In British dependencies and dominions, the absolute doctrine of state immunity was generally adopted in line with what was assumed to have been laid down in The Parlement Belge.
+In the United States, the absolute doctrine had a more chequered history, but it ultimately adopted the second analysis.
+The State Departments traditional approach to the question of state owned ships was described in a communication addressed by the Secretary of State to the Attorney General in 1918, stating that where [state owned] vessels were engaged in commercial pursuits, they should be subject to the obligations and restrictions of trade, if they were to enjoy the benefits and profits.
+Instructions to this effect were given to United States diplomatic and consular officers abroad: see Hackworth, Digest of International Law, ii (1941), 429, 439 440.
+This only changed with the decision of the United States Supreme Court in Berizzi Brothers Co v Steamship Pesaro, 271 US 562 (1926), an action in rem in support of a cargo claim against a trading vessel owned by the Italian state.
+The State Department had refused, in accordance with its traditional practice, to certify that the ship was immune, on the ground that vessels owned by a state and engaged in commerce are not entitled, within the territorial waters of another state, to the immunity accorded to vessels of war, and that notwithstanding such ownership these vessels are subject to the local jurisdiction to the same extent as other merchant vessels: Hackworth, op cit, ii, 437.
+But the Supreme Court upheld the claim to immunity.
+The Court adopted The Parlement Belge, as it had been interpreted in subsequent English case law, including The Porto Alexandre.
+It accepted in principle the distinction between ships operated for public and private purposes which dated back to The Schooner Exchange v McFaddon.
+But it largely emptied it of substance by applying it according to the states purpose in doing the act.
+As Van Devanter J put it, at p 574, when, for the purpose of advancing the trade of its people or providing revenue for its treasury, a government acquires, mans, and operates ships in the carrying trade, they are public ships in the same sense that war ships are.
+We know of no international usage which regards the maintenance and advancement of the economic welfare of a people in time of peace of any less a public purpose than the maintenance and training of a naval force.
+This settled the position for some twenty years as far as claims for state immunity in the United States courts were concerned.
+But, as the State Department recorded in the Tate Letter of 1952 ((1952) 26 Department of State Bulletin, 984 985), it maintained its long standing practice of not asserting immunity in foreign courts in proceedings alleging ordinary contractual or tortious liability against the United States.
+The position in civil law countries was highly diverse.
+In France, the absolute doctrine was endorsed by the Cour de Cassation in its celebrated decision in Lambge et Pujol v Etat dEspagne, 22 Jan 1849, Dalloz (1849), i, 5.
+But the principle was not consistently applied in its absolute form, and a series of decisions in the first half of the 20th century appeared to recognise a distinction between the public and private law functions of states: see Dunbar, art cit, 212 218.
+The absolute doctrine was consistently applied until recent times in Spain, Portugal and Japan, but less consistently in Germany and the Netherlands and not at all in Switzerland.
+It has never been recognised in Italy or Belgium, whose highest courts were among the first to adopt the restrictive doctrine in a recognisably modern form.
+As early as 1886, the Italian Corte di Cassazione justified its position by observing: No one can deny that the foundation of international law is the sovereignty and independence of states; and that in consequence of this principle each state, in the exercise of its powers, is exempted from the jurisdiction of other states.
+But the fallacy consists in considering the state exclusively and always as a body politic, although its activity as a civil entity cannot be gainsaid when it performs acts acquiring rights and assuming obligations in private relationships, like any other physical or juristic person being capable of exercising civil rights.
+Typaldos, Console di Grecia v Manicmio di Aversa, Giurisprundenzia Italiana (1886), I, 228, 229.
+The Belgian Cour de Cassation, after some three decades in which the restrictive doctrine had been applied by the lower courts, adopted it in SA des Chemins de Fer Ligeois Luxembourgeois v Etat Nerlandais, Pasicrisie Belge (1903), ii, 294, 301 302 for very similar reasons.
+Looking at the position in the years immediately following the second world war, Sir Hersch Lauterpacht concluded that the common assumption that the majority of states were wedded to the doctrine of absolute state immunity was inaccurate.
+On the contrary, in the great majority of states in which there is an articulate practice on the subject, courts have declined to follow the principle of absolute immunity (pp 250 251).
+It followed, that so far as the actual practice of states may be said to be evidence of customary international law, there is no doubt that the principle of absolute immunity forms no part of international custom (p 221).
+Thirty five years later the International Law Commission, reporting to the United Nations General Assembly on the difficulties which it had encountered in formulating a basic principle of state immunity, expressed the same view: There is common agreement that, for acts performed in the exercise of the prerogatives de la puissance publique or sovereign authority of the State, there is undisputed immunity.
+Beyond or around that hard core of immunity, however, there appears to be a grey zone in which opinions and existing case law, and indeed legislations, still vary.
+Report of the International Law Commission on the Work of its thirty eighth session [A/41/10] ILC Yearbook (1986), ii(2), 16.
+The story of the progressive adoption of the restrictive doctrine of state immunity in the past 70 years is well known and can be shortly summarised.
+The main impetus for this was the growing significance of state trading organisations in international trade.
+The critical moment was the formal adoption (or readoption) of the restrictive doctrine by the United States government in the Tate Letter, addressed by the legal adviser to the State Department to the Acting Attorney General on 19 May 1952.
+After reciting the adoption of the restrictive doctrine by a growing number of states, it stated the intention of the executive to act on it.
+The widespread and increasing practice on the part of governments of engaging in commercial activities, it observed, makes necessary a practice which will enable persons doing business with them to have their rights determined in the courts: loc cit, 985.
+Following the Tate Letter, the restrictive doctrine was generally adopted by Federal Courts, a development which was ultimately approved by the Supreme Court in Alfred Dunhill of London Inc v Republic of Cuba, 425 US 682, 701 703 (1976).
+In Europe, the main landmark was the adoption by the German Bundesverfassungsgericht of the restrictive theory in 1963, and its acceptance that the distinction between acts jure imperii and jure gestionis depended on the juridical character of the act, not the purpose of the state in doing it: Claim against the Empire of Iran (1963) 45 ILR 257.
+The courts of the United Kingdom, followed suit in the 1970s.
+Today, the international consensus in favour of the restrictive doctrine is almost complete.
+While there are a few states whose domestic position is unclear, with the legislative adoption of the restrictive doctrine by Russia in 2015, the only notable state still to adhere to the absolute doctrine is China.
+Three points can be derived from this history.
+The first is that there has probably never been a sufficient international consensus in favour of the absolute doctrine of immunity to warrant treating it as a rule of customary international law.
+All that can be said is that during certain periods, a substantial number of states, but not necessarily a majority, have adopted the absolute doctrine as part of their domestic law.
+Some of them have done so on the assumption that it represented international law, but without any real investigation of the rule recognised in other states.
+Secondly, while there has for at least two centuries been a consensus among nations in favour of some form of state immunity, the only consensus that there has ever been about the scope of that immunity is the consensus in favour of the restrictive doctrine.
+Thirdly, the adoption of the restrictive doctrine has not proceeded by accumulating exceptions to the absolute doctrine.
+What has happened is that governments, courts and writers of authority have been prompted by the widening scope of state operations and their extension into commerce and industry, to re examine the true basis of a doctrine originally formulated at a time when states by and large confined their operations in other countries to the classic exercises of sovereign authority.
+The true basis of the doctrine was and is the equality of sovereigns, and that never did warrant immunity extending beyond what sovereigns did in their capacity as such.
+As Lord Wilberforce put it in The I Congreso del Partido [1983] 1 AC 244, 262, It is necessary to start from first principle.
+The basis upon which one state is considered to be immune from the territorial jurisdiction of the courts of another state is that of par in parem, which effectively means that the sovereign or governmental acts of one state are not matters upon which the courts of other states will adjudicate.
+Application to contracts of employment
+As a matter of customary international law, if an employment claim arises out of an inherently sovereign or governmental act of the foreign state, the latter is immune.
+It is not always easy to determine which aspects of the facts giving rise to the claim are decisive of its correct categorisation, and the courts have understandably avoided over precise prescription.
+The most satisfactory general statement is that of Lord Wilberforce in The I Congreso del Partido, at 267: The conclusion which emerges is that in considering, under the restrictive theory whether state immunity should be granted or not, the court must consider the whole context in which the claim against the state is made, with a view to deciding whether the relevant act(s) upon which the claim is based, should, in that context, be considered as fairly within an area of activity, trading or commercial, or otherwise of a private law character, in which the state has chosen to engage, or whether the relevant act(s) should be considered as having been done outside that area, and within the sphere of governmental or sovereign activity.
+In the great majority of cases arising from contract, including employment cases, the categorisation will depend on the nature of the relationship between the parties to which the contract gives rise.
+This will in turn depend on the functions which the employee is employed to perform.
+The Vienna Convention on Diplomatic Relations divides the staff of a diplomatic mission into three broad categories: (i) diplomatic agents, ie the head of mission and the diplomatic staff; (ii) administrative and technical staff; and (iii) staff in the domestic service of the mission.
+Diplomatic agents participate in the functions of a diplomatic mission defined in article 3, principally representing the sending state, protecting the interests of the sending state and its nationals, negotiating with the government of the receiving state, ascertaining and reporting on developments in the receiving state and promoting friendly relations with the receiving state.
+These functions are inherently governmental.
+They are exercises of sovereign authority.
+Every aspect of the employment of a diplomatic agent is therefore likely to be an exercise of sovereign authority.
+The role of technical and administrative staff is by comparison essentially ancillary and supportive.
+It may well be that the employment of some of them might also be exercises of sovereign authority if their functions are sufficiently close to the governmental functions of the mission.
+Cypher clerks might arguably be an example.
+Certain confidential secretarial staff might be another: see Governor of Pitcairn v Sutton (1994) 104 ILR 508 (New Zealand Court of Appeal).
+However, I find it difficult to conceive of cases where the employment of purely domestic staff of a diplomatic mission could be anything other than an act jure gestionis.
+The employment of such staff is not inherently governmental.
+It is an act of a private law character such as anyone with the necessary resources might do.
+This approach is supported by the case law of the European Court of Human Rights, which I have already summarised.
+In Cudak, Sabeh El Leil, Wallishauser and Radunovi, all cases concerning the administrative and technical staff of diplomatic missions, the test applied by the Strasbourg Court was whether the functions for which the applicant was employed called for a personal involvement in the diplomatic or political operations of the mission, or only in such activities as might be carried on by private persons.
+In Mahamdia v Peoples Democratic Republic of Algeria (Case C 154/11) [2013] ICR 1, para 55 57, the Court of Justice of the European Union applied the same test, holding that the state is not immune where the functions carried out by the employee do not fall within the exercise of public powers.
+The United States decisions are particularly instructive, because the Foreign State Immunity Act of the United States has no special provisions for contracts of employment.
+They therefore fall to be dealt with under the general provisions relating to commercial transactions, which have been interpreted as confining state immunity to exercises of sovereign authority: see Saudi Arabia v Nelson 507 US 349, 360 (1993).
+The principle now applied in all circuits that have addressed the question is that a state is immune as regards proceedings relating to a contract of employment only if the act of employing the plaintiff is to be regarded as an exercise of sovereign authority having regard to his or her participation in the diplomatic functions of the mission: Segni v Commercial Office of Spain 835 F 2d 160, 165 (7th Cir, 1987), Holden v Canadian Consulate 92 F 3d 918 (9th Cir, 1996).
+Although a foreign state may in practice be more likely to employ its nationals in those functions, nationality is in itself irrelevant to the characterisation: El Hadad v United Arab Emirates 216 F 3d 29 (DC Cir, 2000), at 4, 5.
+In Park v Shin 313 F 3d 1138 (9th Cir, 2002), paras 12 14, it was held that the act of hiring a domestic servant is not an inherently public act that only a government could perform, even if her functions include serving at diplomatic entertainments.
+A very similar principle has been consistently applied in recent decisions of the French Cour de Cassation: Barrandon v United States of America, 116 ILR 622 (1998), Coco v Argentina 113 ILR 491 (1996), Saignie v Embassy of Japan 113 ILR 492 (1997).
+In the last named case, at p 493, the court observed that the employee, a caretaker at the premises of the mission, had not had any special responsibility for the performance of the public service of the embassy.
+I would, however, wish to guard against the suggestion that the character of the employment is always and necessarily decisive.
+Two points should be made, albeit briefly since neither is critical to this appeal.
+The first is that a states immunity under the restrictive doctrine may extend to some aspects of its treatment of its employees or potential employees which engage the states sovereign interests, even if the contract of employment itself was not entered into in the exercise of sovereign authority.
+Examples include claims arising out of an employees dismissal for reasons of state security.
+They may also include claims arising out of a states recruitment policy for civil servants or diplomatic or military employees, or claims for specific reinstatement after a dismissal, which in the nature of things impinge on the states recruitment policy.
+These particular examples are all reflected in the United Nations Convention and were extensively discussed in the preparatory sessions of the International Law Commission.
+They are certainly not exhaustive.
+In re Canada Labour Code [1992] 2 SCR 50, concerned the employment of civilian tradesmen at a US military base in Canada.
+The Supreme Court of Canada held that while a contract of employment for work not involving participation in the sovereign functions of the state was in principle a contract of a private law nature, particular aspects of the employment relationship might be immune as arising from inherently governmental considerations, for example the introduction of a no strike clause deemed to be essential to the military efficiency of the base.
+In these cases, it can be difficult to distinguish between the purpose and the legal character of the relevant acts of the foreign state.
+But as La Forest J pointed out (p 70), in this context the states purpose in doing the act may be relevant, not in itself, but as an indication of the acts juridical character.
+The second point to be made is that the territorial connections between the claimant on the one hand and the foreign or forum state on the other can never be entirely irrelevant, even though they have no bearing on the classic distinction between acts done jure imperii and jure gestionis.
+This is because the core principle of international law is that sovereignty is territorial and state immunity is an exception to that principle.
+As the International Court of Justice observed in Jurisdictional Immunities of the State, at para 57, the principle of state immunity has to be viewed together with the principle that each State possesses sovereignty over its own territory and that there flows from that sovereignty the jurisdiction of the State over events and persons within that territory.
+Exceptions to the immunity of the State represent a departure from the principle of sovereign equality.
+Immunity may represent a departure from the principle of territorial sovereignty and the jurisdiction which flows from it.
+The whole subject of the territorial connections of a non state contracting party with the foreign or the forum state raises questions of exceptional sensitivity in the context of employment disputes.
+There is a substantial body of international opinion to the effect that the immunity should extend to a states contracts with its own nationals irrespective of their status or functions even if the work falls to be performed in the forum state; and correspondingly that it should not extend to staff recruited from the local labour force in whose protection the forum state has a governmental interest of its own.
+Both propositions received substantial support in the preparatory sessions leading to the United Nations Convention and were reflected in the final text of article 11.
+Both receive a measure of recognition in the Vienna Convention on Diplomatic Relations which carefully distinguishes between the measure of immunity accorded to the staff of a diplomatic mission according to whether they are nationals of the foreign state or nationals or permanent residents of the forum state: see articles, 33.2, 37, 38, 39.4 and 44.
+In a practical sense, it might be thought reasonable that a contract between a state and one of its own nationals should have to be litigated in the courts of that state under its laws, but unreasonable that the same should apply to locally recruited staff.
+There is, however, only limited international consensus on where the boundaries lie between the respective territorial responsibilities of the foreign and the forum state, and on how far the territorial principle can displace the rule which confers immunity on acts jure imperii but not on acts jure gestionis.
+I shall expand on this point below, in the context of section 4 of the State Immunity Act, which is largely based on the territorial principle.
+Section 4(2)
+At the time when the State Immunity Act was enacted, the application of state immunity to contracts of employment had only lately emerged as a potential problem.
+States had traditionally recruited the staff of diplomatic and representative missions at home.
+The employment of locally recruited staff in significant numbers was a recent development.
+The European Convention on State Immunity was one of the first international instruments to make special provision for contracts of employment, which would otherwise have fallen to be dealt with under the general principles of customary international law relating to state immunity.
+There was, however, no consistency of state practice capable of founding a special rule of customary international law governing employment.
+This was recognised during the preparatory sessions of the International Law Commission relating to jurisdictional immunities of states.
+The working group reviewing the Commissions draft articles of 1991 observed in 1999: 96.
+Although it has been argued that there are no universally accepted international law principles regulating the position of employees of foreign States, relevant case law has often considered a contract of employment as merely a special type of commercial/private law contract. 97.
+In this regard, it is important to distinguish between those States whose law on sovereign immunities makes a specific provision for contracts of employment and those States where it does not or which have no statute on the subject.
+In the latter cases, it is necessary to analyse the contract of employment as a commercial or private law contract, whereas in the former case, the only question is whether the contract of employment falls within the relevant provisions. 98.
+A key concern has been to balance the sovereignty of States with the interests of justice involved when an individual enters into a transaction with a State.
+One way of achieving this balance has been to stress a distinction between acts that are sovereign, public or governmental in character as against acts that are commercial or private in character 99.
+Immunity has generally been granted in respect of the employment of persons at diplomatic or consular posts whose work involves the exercise of governmental authority. 100.
+The cases examined indicate a tendency for courts to find that they have the jurisdiction to hear disputes relating to employment contracts, where the employment mirrors employment in the private sector.
+However, there has also been recognition that some employment based on such contracts involves governmental activities by the employees and, in such circumstances, courts have been prepared to grant immunity.
+ILC Yearbook (1999), ii(2), 166.
+The travaux leading to article 11 of the United Nations Convention contain no suggestion that existing state practice supported a special rule of international law concerning employment claims, extending beyond the immunity attaching to sovereign acts.
+On the contrary, it is clear from both the travaux themselves and the impressive body of legal materials assembled by the parties to this appeal that, while many states assert a special jurisdiction over employment disputes extending to the employees of foreign states, there is considerable diversity in this area.
+The ILCs Special Rapporteur reported in 1983 (ILC Yearbook (1983), ii(1), 34 8 [A/CN.4/363]) that: the current practice of States with regard to contracts of employment can offer no greater comfort nor absolute proof approaching a universal or uniform State practice.
+It only indicates a deeper intrusion into a darker or greyer zone of greater controversy. (para 39) The most that could be said was that All things considered, an emerging trend appears to favour the application of local labour law in regard to recruitment of the available labour force within a country, and consequently to encourage the exercise of territorial jurisdiction at the expense of jurisdictional immunities of foreign States. (para 60)
+The result is that the State Immunity Act 1978 can be regarded as giving effect to customary international law only so far as it distinguishes between exercises of sovereign authority and acts of a private law character, and requires immunity to be conferred on the former but not the latter.
+There is no basis in customary international law for the application of state immunity in an employment context to acts of a private law character.
+Under the terms of the Act, contracts of employment are excluded from the ambit of section 3, which applies the distinction between sovereign acts and acts of a private law character to other contracts for the supply of services.
+Section 4 by comparison identifies those contracts of employment which attract immunity by reference to the respective connections between the contract or the employee and the two states concerned.
+In principle, immunity does not attach to employment in the local labour market, ie where the contract was made in the United Kingdom or the work fell to be performed there: see section 4(1).
+However, this is subject to sections 4(2)(a) and (b), which are concerned with the employees connections by nationality or residence with the foreign state (section 4(2)(a)) or the forum state (section 4(2)(b)).
+Section 4(2)(a) extends the immunity to claims against the employing state by its own nationals.
+As I have said, this may have a sound basis in customary international law, but does not arise here.
+Section 4(2)(b) extends it to claims brought by nationals or habitual residents of third countries.
+Both subsections apply irrespective of the sovereign character of the relevant act of the foreign state.
+Sections 4(2)(a) and (b) are derived from article 5.2(a) and (b) of the European Convention on State Immunity.
+Like section 4 of the Act, article 5 of the Convention deals with contracts of employment without reference to the distinction between acts jure imperii and jure gestionis which are the basis of the restrictive doctrine of immunity.
+Contractual submission apart, the availability of state immunity in answer to employment claims is made to depend entirely on the location of the work and the respective territorial connections between the employee on the one hand and the foreign state or the forum state on the other.
+The explanatory report submitted to the Committee of Ministers of the Council of Europe justified this on the ground that the links between the employee and the employing State (in whose courts the employee may always bring proceedings), are generally closer than those between the employee and the State of the forum.
+The United Kingdom is not unique in applying this principle.
+Seven other European countries are party to the European Convention on State Immunity and six other countries have enacted legislation containing provisions similar to section 4(2) of the United Kingdom Act.
+But this is hardly a sufficient basis on which to identify a widespread, representative and consistent practice of states, let alone to establish that such a practice is accepted on the footing that it is an international obligation.
+The considerable body of comparative law material before us suggests that unless constrained by a statutory rule the general practice of states is to apply the classic distinction between acts jure imperii and jure gestionis, irrespective of the nationality or residence of the claimant.
+Indeed, the courts of a significant number of jurisdictions have refused to apply the immunity as between states which are not I conclude that section 4(2)(b) of the State Immunity Act 1978 is not justified both party to the Convention, unless they performed functions directly related to the exercise of the states sovereign authority, on the ground that the requirements of general international law differed on this point from those of the Convention: see French Consular Employee Claim (1989) 86 ILR 583 (Supreme Court, Austria); British Consulate General in Naples v Toglia (1989) 101 ILR 379, 383 384 (Corte de Cassazione, Italy); De Queiroz v State of Portugal, 115 ILR 430 (1992) (Brussels Labour Court, Belgium, 4th Chamber); M v Arab Republic of Egypt (1994) 116 ILR 656 (Federal Tribunal, Switzerland); Muller v United States of America 114 ILR 512, 517 (1998) (Regional Labour Court, Hesse); X v Saudi School in Paris and Kingdom of Saudi Arabia, 127 ILR 163 (2003) (Cour de Cassation, France note the observations of the Advocate General at p 165); A v B Oxf Rep Int L (ILDC 23) (2004) (Supreme Court, Norway); Kingdom of Morocco v HA Yearbook of International Law (2008), 392 (Court of Appeal of the Hague, Netherlands).
+by any binding principle of international law.
+The Secretary of State has an alternative argument to the effect that section 4(2)(b) may be justifiable as an application of purely domestic policy, on the ground that the United Kingdoms interest in asserting the jurisdiction of its own courts over the employment of the local labour force does not extend to nationals or residents of third countries.
+I reject this argument.
+On the footing that international law does not require a state to be given immunity, I do not see how the absence of British nationality or residence at the time of the contract can be a proper ground for denying an employee access to the courts in respect of their employment in the United Kingdom.
+They have no territorial connection with their employer, other than that which is implicit in the employment relationship itself.
+The fact that they may have had no connection with the United Kingdom either before they came to work here does not prevent them from being part of the domestic labour force afterwards.
+Nor do I accept that the only relevant interest for this purpose is that of the United Kingdom state.
+The forum state has duties as well as rights, and as a matter of domestic policy they extend to the protection of those lawfully living and employed in the United Kingdom.
+Section 16(1)(a)
+Since section 16(1)(a) extends state immunity to the claims of any employee of a diplomatic mission, irrespective of the sovereign character of the employment or the acts of the state complained of, it is plain that it cannot be justified by reference to any general principle of immunity based on the restrictive doctrine.
+It could be justified only if there were a special rule, in effect an absolute immunity, applicable to embassy staff.
+I have already pointed out, in the context of section 4(2)(b), that in jurisdictions where the courts determine claims to immunity by reference to customary international law, the test is whether the relevant acts of the state were exercises of sovereign authority.
+The analysis need not be repeated here.
+It is inconsistent with any suggestion that immunity can attach to all embassy staff as such.
+The Secretary of State submits that there is indeed a special rule applicable to embassy staff.
+He says that such a rule is implicit in the international obligations of the United Kingdom under the Vienna Convention on Diplomatic Relations, the European Convention on State Immunity, and the state of customary international law reflected in the United Nations Convention.
+The Vienna Convention on Diplomatic Relations has been ratified by almost every state in the world and may for practical purposes be taken to represent a universally binding standard in international law.
+Article 7 provides that a sending state may freely appoint members of the staff of a diplomatic mission.
+The staff referred to include the technical, administrative and domestic staff as well as the diplomatic staff: see article 1.
+The argument is that the freedom to appoint embassy staff must imply a freedom to dismiss them.
+Article 32 of the European Convention on State Immunity and article 3.1 of the United Nations Convention both provide that they are not to prejudice the privileges and immunities of a state in relation to the exercise of the functions of its diplomatic missions and persons connected with them.
+In my opinion, however, article 7 of the Vienna Convention has only a limited bearing on the application of state immunity to employment claims by embassy staff.
+I would accept that the right freely to appoint embassy staff means that a court of the forum state may not make an order which determines who is to be employed by the diplomatic mission of a foreign state.
+Therefore, it may not specifically enforce a contract of employment with a foreign embassy or make a reinstatement order in favour of an employee who has been dismissed.
+But a claim for damages for wrongful dismissal does not require the foreign state to employ any one.
+It merely adjusts the financial consequences of dismissal.
+No right of the foreign state under the Vienna Convention is infringed by the assertion of jurisdiction in the forum state to carry out that adjustment.
+Therefore, no right under the Vienna Convention would be prejudiced by the refusal of the forum state to recognise the immunity of the foreign state as regards a claim for damages.
+The closest that any international instrument has come to providing for a general immunity of states as regards claims by embassy staff is article 11.2(b) of the United Nations Convention.
+The article provides, so far as relevant: 1.
+Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding Article 11 which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State. 2.
+Paragraph 1 does not apply if: (a) the employee has been recruited to perform particular functions in the exercise of governmental authority; (b) the employee is: (i) a diplomatic agent, as defined in the Vienna Convention on Diplomatic Relations of 1961; (ii) a consular officer, as defined in the Vienna Convention on Consular Relations of 1963; (iii) a member of the diplomatic staff of a permanent mission international organization or of a special mission, or is recruited to represent a State at an international conference; or (iv) any other person enjoying diplomatic immunity. (c) the subject matter of the proceeding is the recruitment, renewal of employment or reinstatement of an individual; (d) the subject matter of the proceeding is the dismissal or termination of employment of an individual and, as determined by the head of State, the head of Government or the Minister for Foreign Affairs of the employer State, such a proceeding would interfere with the security interests of that State; to an (e) the employee is a national of the employer State at the time when the proceeding is instituted, unless this person has the permanent residence in the State of the forum; (f) the employer State and the employee have otherwise agreed to any in writing, subject considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject matter of the proceeding.
+In general, article 11 adheres to the restrictive doctrine, confining the immunity in employment disputes to cases where the making of the contract or the acts giving rise to the complaint were exercises of sovereign authority, or the dispute is between a state and one of its own nationals.
+Article 11.2(b) of the United Nations Convention lists four categories of employee whose claims will attract immunity.
+The first three categories are diplomatic or consular staff whose functions would normally be regarded as inherently governmental.
+But the fourth category comprises any other person enjoying diplomatic immunity.
+Under the Vienna Convention on Diplomatic Relations, all members of the staff of a mission who are not nationals of or permanently resident in the receiving state enjoy diplomatic immunity, including (in respect of acts performed in the course of their duties) domestic staff: see article 37(3).
+On the face of it, therefore, this provision applies state immunity to all claims by embassy staff at whatever level and irrespective of the juridical character of the acts giving rise to the dispute.
+The Court of Appeal, adopting a suggestion in OKeefe and Tams (ed), The United Nations Convention of Jurisdictional Immunities of States and their Property.
+A Commentary (2013), 201 2, have held that it could not have meant this in the light of the travaux preparatoires.
+These do not explain how article 11.2(b) came to assume its final form.
+But they do show that the working groups and committees of the International Law Commission intended to limit the immunity to the employment of diplomatic agents.
+It was suggested to us that sub paragraph (iv) might also have been intended to cover diplomats at international conferences, and there are passages in the travaux which support that view: see, in particular, Report of the ILC Working Group on Jurisdictional Immunities of States, ILC Yearbook (1999), ii(2), para 105.
+But since both of these categories are already covered by article 11(2)(b)(i) and (iii), and the language of (iv) is unequivocal, I doubt whether these suggestions can be supported.
+It is, however, unnecessary to decide the point, because it is in my view clear that if article 11(2)(b)(iv) means what it says, it is legislative rather than declaratory of existing international law.
+It may one day bind states qua treaty.
+It may come to represent customary international law if and when the Convention attracts sufficient support.
+But it does not do either of these things as matters presently stand.
+There are judicial decisions in which the court, while limiting the immunity to exercises of sovereign authority, has taken an expansive view of the range of acts relating to an embassy employee which can be so described.
+Sengupta v Republic of India [1983] ICR 221 was a decision of the Employment Appeal Tribunal under the common law in force before the passing of the State Immunity Act 1978.
+The Tribunal held that state immunity attached to a claim for the unfair dismissal of an employee of the Indian High Commission in London.
+He was employed at what Browne Wilkinson J, delivering the judgment of the court, described (p 223) as the lowest clerical level.
+He was essentially responsible for collating press cuttings.
+The tribunals reasons appear from pp 228 229 of the judgment: When one looks to see what is involved in the performance of the applicants contract, it is clear that the performance of the contract is part of the discharge by the foreign state of its sovereign functions in which the applicant himself, at however lowly a level, is under the terms of his contract of employment necessarily engaged.
+One of the classic forms of sovereign acts by a foreign state is the representation of that state in a receiving state A contract to work at a diplomatic mission in the work of that mission is a contract to participate in the public acts of the foreign sovereign.
+The dismissal of the applicant was an act done in pursuance of that public function, ie the running of the mission.
+As a consequence, the fairness of any dismissal from such employment is very likely to involve an investigation by the industrial tribunal into the internal management of the diplomatic representation in the United Kingdom of the Republic of India, an investigation wholly inconsistent with the dignity of the foreign state and an interference with its sovereign functions.
+A very similar view was taken in Government of Canada v Employment Appeals Tribunal and Burke (1992) 95 ILR 467, 500 where the Irish Supreme Court, applying the common law in the absence of any domestic legislation in Ireland, held that the services of a chauffeur employed by the Canadian embassy in Dublin were sufficiently related to the diplomatic functions of the embassy to make Canada immune from suit.
+OFlaherty J, delivering the judgment of the majority, said (p 500) that prima facie anything to do with the embassy is within the public domain of the government in question.
+There have been occasional decisions to the same effect in other jurisdictions: see, for example, Heusala v Turkey (1993) Oxf Rep Int L (ILDC 576) (Supreme Court, Finland); A v B (2004) Oxf Rep Int L (ILDC 23) (Supreme Court, Norway).
+These decisions amount to saying that the employment of embassy staff is inherently governmental notwithstanding the non governmental character of the particular employees functions or of the relevant acts of the employer.
+Sengupta was decided at an early stage of the development of the law in this area and, in my opinion, the test applied by the Employment Appeal Tribunal was far too wide.
+I agree with the criticism of the decision in Fox, The Law of State Immunity, 3rd ed (2013), 199n, that the reasoning had more regard to the purpose than to the juridical character of the claimants employment.
+It is not for this court to review the domestic case law of the other jurisdictions cited, least of all when they are based on the categorisation of the particular facts.
+For my part, however, I doubt whether an English court applying customary international law could properly have categorised the facts of these cases as involving exercises of sovereign authority.
+The way in which the restrictive doctrine has been applied by the European Court of Human Rights, the federal courts of the United States and the French Cour de Cassation appears to me to be more consistent with the underlying principle.
+What is, however, clear beyond argument is that there is no international consensus on this point sufficient to found a rule of customary international law corresponding to section 16(1)(a) of the State Immunity Act 1978.
+I have already pointed out that in treating article 11 as expressing customary international law, the European Court of Human Rights had in mind those parts of article 11 which reflected the restrictive doctrine.
+In all of the cases in which it has held the recognition of immunity to violate article 6 of the Human Rights Convention, the applicant appears to have been a national or permanently resident in the forum state.
+The applicant did not therefore enjoy diplomatic immunity and neither article 11(2)(b)(iv) nor article 11(2)(e) arose for consideration.
+Application to the present cases
+Since I have concluded that no principle of international law deprived the Employment Tribunal of jurisdiction in these cases, it follows that the United Kingdom had jurisdiction over Libya and Sudan as a matter of international law, and article 6 is engaged by its refusal to exercise it.
+The jurisdictional issue raised by Lord Millett in Holland v Lampen Wolfe and by Lord Bingham and Lord Hoffmann in Jones v Saudi Arabia does not arise.
+The employment of Ms Janah and Ms Benkharbouche were clearly not exercises of sovereign authority, and nothing about their alleged treatment engaged the sovereign interests of their employers.
+Nor are they seeking reinstatement in a way that would restrict the right of their employers to decide who is to be employed in their diplomatic missions.
+As a matter of customary international law, therefore, their employers are not entitled to immunity as regards these claims.
+It follows that so far as sections 4(2)(b) or 16(1)(a) of the State Immunity Act confer immunity, they are incompatible with article 6 of the Human Rights Convention.
+Discrimination
+Ms Janahs case that the discriminatory character of section 4(2)(b) of the Act is a violation of article 14 of the Human Rights Convention, read in conjunction with article 6, adds nothing to her case based on article 6 alone.
+Section 4(2)(b) unquestionably discriminates on grounds of nationality.
+The only question is whether the discrimination is justifiable by reference to international law.
+If state immunity is no answer to the claim under article 6 alone, then it is no answer to the claim under the combination of article 6 and article 14.
+In my view, the denial of access to the courts to persons in her position is unjustifiable whether it is discriminatory or not.
+Article 47 of the EU Charter of Fundamental Rights
+Article 47 provides, so far as relevant, that: everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this article.
+The scope of article 47 of the Charter is not identical to that of article 6 of the Human Rights Convention, but the Secretary of State accepts that on the facts of this case if the Convention is violated, so is the Charter.
+A claim to state immunity which is justified in international law, would be an answer in both cases: Mahamdia v Peoples Democratic Republic of Algeria (Case C 154/11) [2013] ICR 1, Advocate General at paras 17 23, endorsed by the Court at para 55.
+It follows that there is no separate issue as to article 47 of the Charter.
+The only difference that it makes is that a conflict between EU law and English domestic law must be resolved in favour of the former, and the latter must be disapplied; whereas the remedy in the case of inconsistency with article 6 of the Human Rights Convention is a declaration of incompatibility.
+Conclusion
+I would dismiss the Secretary of States appeal and affirm the order of the Court of Appeal.
+The result is that sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978 will not apply to the claims derived from EU law for discrimination, harassment and breach of the Working Time Regulations.
+Subject to any question as to the application of section 4(2)(b) to the particular circumstances of Ms Benkharbouche, the other claims (failure to provide payslips or a contract of employment, unpaid wages, failure to pay the national minimum wage and unfair dismissal) are barred by those sections of the Act.
+But to that extent they are incompatible with article 6 of the Human Rights Convention, and also, in the case of section 4(2)(b) with article 6 read with article 14 of the Convention.
+Both cases must be remitted to the Employment Tribunal to determine the claims based on EU law on their merits.
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+This appeal concerns the scope of the duty of confidentiality owed by Her Majestys Revenue and Customs (HMRC) in respect of the affairs of tax payers.
+The duty is now in statutory form.
+Commissioners for Revenue and Customs Act 2005
+added by me to highlight the important words): Section 18 of the Act is headed Confidentiality.
+It provides (with emphasis (1) Revenue and Customs officials may not disclose information which is held by the Revenue and Customs in connection with a function of the Revenue and Customs. (2) But subsection (1) does not apply to a disclosure is made for the purposes of a function of (a) which (i) the Revenue and Customs, and (ii) does not contravene any restriction imposed by the Commissioners, (b) which is made in accordance with section 20 or 21, (c) which is made for the purposes of civil proceedings (whether or not within the United Kingdom) relating to a matter in respect of which the Revenue and Customs have functions, (d) which is made for the purposes of a criminal investigation or criminal proceedings (whether or not within the United Kingdom) relating to a matter in respect of which the Revenue and Customs have functions, (e) which is made in pursuance of an order of a court, (f) which is made to Her Majestys Inspectors of Constabulary, the Scottish inspectors or the Northern Ireland inspectors for the purpose of an inspection by virtue of section 27, (g) which is made to the Independent Police Complaints Commission, or a person acting on its behalf, for the purpose of the exercise of a function by virtue of section 28, (h) which is made with the consent of each person to whom the information relates, (3) Subsection (1) is subject to any other enactment permitting disclosure.
+In this section (4) (a) a reference to any person who is or was a reference to Revenue and Customs officials is a Commissioner, (i) (ii) an officer of Revenue and Customs, (iii) a person acting on behalf of the Commissioners or an officer of Revenue and Customs, or (iv) a member of a committee established by the Commissioners, a reference to the Revenue and Customs has the (b) same meaning as in section 17, (c) a reference to a function of the Revenue and Customs is a reference to a function of the Commissioners, or (i) (ii) an officer of Revenue and Customs,
+Sections 20 and 21, which are referred to in section 18(2)(b), cover various situations where disclosure is authorised on public interest grounds, such as disclosure to another public body for the purposes of the prevention, detection or prosecution of crime.
+Section 5 is headed Commissioners initial functions.
+It provides: (1) The Commissioners shall be responsible for (a) the collection and management of revenue for which the Commissioners of Inland Revenue were responsible before the commencement of this section, [and] (b) the collection and management of revenue for which the Commissioners of Customs and Excise were responsible before the commencement of this section,
+Section 9 is headed Ancillary powers.
+It provides: (1) The Commissioners may do anything which they think (a) necessary or expedient in connection with the exercise of their functions, or (b) functions.
+incidental or conducive to the exercise of their
+Section 51 (headed Interpretation) defines function as meaning any power or duty (including a power or duty that is ancillary to another power or duty).
+Section 19 makes it a criminal offence for a person to contravene section 18(1) by disclosing revenue and customs information relating to a person whose identity is specified in or can be deduced from the disclosure, subject to a statutory defence if the defendant shows that he reasonably believed that the disclosure was lawful or that the information had already been lawfully made available to the public.
+Mr Patrick McKenna is a former senior partner of a global firm of chartered accountants.
+He is the founder and chief executive officer of Ingenious Media Holdings plc.
+The company and its subsidiaries (collectively Ingenious Media) are an investment and advisory group specialising in the media and entertainment industries.
+Among other things they have promoted film investment schemes involving film production partnerships.
+The schemes were devised by Mr McKenna and utilised certain tax relief which was then available.
+The marketing of the schemes stopped when the tax relief ceased to be available.
+On 14 June 2012 the Permanent Secretary for Tax in HMRC, Mr David Hartnett, gave an interview to two financial journalists from The Times.
+They had requested the meeting to discuss tax avoidance.
+The meeting was recorded and was agreed to be off the record.
+On 21 June 2012 The Times published two articles on the subject of film schemes and tax avoidance.
+They informed readers that: Patrick McKenna and [X] are the two main providers of film investments schemes in the UK.
+To the Revenue the two men represent a threat.
+HM Revenue and Customs believes that film schemes have enabled investors to avoid at least 5 billion in tax.
+Much of that sum, the Revenue says, is attached to schemes created by [X] or Mr McKenna.
+Mr McKenna, 56, founder of Ingenious Media, is also involved in a long running Revenue inquiry into three of his partnerships.
+Hes never left my radar, a senior Revenue official said of Mr McKenna.
+Hes an urbane man, , hes a clever guy, hes made a fortune, hes a banker, but actually hes a big risk for us so we would like to recover lots of the tax relief hes generated for himself and other people.
+Are we winning? I would say, beginning to.
+I think well clean up on film schemes over the next few years.
+The senior Revenue official was Mr Hartnett.
+The words attributed to him are a direct quotation from the transcript of the interview, and Mr Hartnett was the source of the reference to 5 billion (although in the interview Mr Hartnett gave the figure utterly off the record).
+Mr Hartnett said other things which were not for quotation (and were not quoted), including a description of the film schemes as scams for scumbags.
+At the time of the interview, HMRC had not reached a formal decision whether to challenge their validity.
+There is no dispute that Mr Hartnett imparted information to The Times regarding the tax activities of Mr McKenna and Ingenious Media, and HMRCs attitude towards them, derived from information held by HMRC about them.
+Mr Hartnetts reasons for disclosure
+The reasons given by Mr Hartnett for what he said to the journalists about Mr McKenna and Ingenious were that it was generally in HMRCs interests to try to establish good relations with the financial press; that they provided a way of emphasising to the general public HMRCs views on elaborate tax avoidance schemes; and that Mr Hartnett thought that the journalists might have information of significant value to HMRC, which they might reveal as the dialogue continued, such as details of tax avoidance arrangements which the journalists had uncovered but were unknown to HMRC.
+Mr Hartnett emphasised that the interview was agreed to be off the record, and that he did not anticipate that his comments about Mr McKenna and Ingenious Media would be published.
+The claim
+The claim by Ingenious Media and Mr McKenna was brought by way of an application for judicial review, although in substance it was a straightforward claim for breach of a duty of confidentiality.
+The form in which the claim was brought appears to have influenced its perception by the courts below.
+At first instance, Sales J held that it was not appropriate for the court to approach Mr Hartnetts decision to say what he said as if the court were the primary decision maker: [2013] EWHC 3258 (Admin), para 40.
+The court, he held, could only intervene if satisfied that Mr Hartnett could not rationally take the view that speaking to the journalists as he did would assist HMRC in the exercise of its tax collection functions.
+Sales J emphasised, at para 50, that the rationality standard is a flexible one, which varies in the width of discretion allowed to a decision maker according to the strength of the public interest and the strength of the interests of any individual affected by the decision to be taken.
+He laid stress on the fact that the disclosures made were limited and that the interview was agreed to be off the record.
+The disclosures made were, in his judgment, not irrational, were made for a legitimate purpose and were proportionate.
+In short, he approached the matter as a review on public law principles of an administrative act, and he dismissed the claim.
+Sales Js judgment was upheld by the Court of Appeal in a judgment given by Sir Robin Jacob, with which Moore Bick and Tomlinson LJJ agreed: [2015] 1 WLR 3183.
+Sir Robin rejected the claimants arguments that the disclosures made were not in connection with a function of HMRC, properly construed, and that the judge had adopted the wrong standard of review.
+As to the first argument, he held that a wide meaning should be given to section 18(2)(a)(i) ( subsection (1) does not apply to a disclosure which is made for the purposes of a function of the Revenue and Customs).
+As to the second argument, Sir Robin echoed Sales Js holding that it was not for the court to review all the facts de novo as though it were the primary decision maker (para 46).
+Analysis
+From the judgments below and the arguments in this court, three main issues emerge: what is the proper construction of the section 18(2)(a)(i) read with the other provisions of the Act; what is the proper approach of the court in judging the conduct of Mr Hartnett; and what is the significance of his understanding that his interview with the journalists was to be off the record?
+The interpretation of section 18
+Unfortunately the courts below were not referred (or were only scarcely referred) to the common law of confidentiality.
+The duty of confidentiality owed by HMRC to individual taxpayers is not something which sprang fresh from the mind of the legislative drafter.
+It is a well established principle of the law of confidentiality that where information of a personal or confidential nature is obtained or received in the exercise of a legal power or in furtherance of a public duty, the recipient will in general owe a duty to the person from whom it was received or to whom it relates not to use it for other purposes.
+The principle is sometimes referred to as the Marcel principle, after Marcel v Commissioner of Police of the Metropolis [1992] Ch 225.
+In relation to taxpayers, HMRCs entitlement to receive and hold confidential information about a person or a companys financial affairs is for the purpose of enabling it to assess and collect (or pay) what is properly due from (or to) the tax payer.
+In R v Inland Revenue Comrs, Ex p National Federation of Self Employed and Small Businesses Ltd [1982] AC 617, 633, Lord Wilberforce said that the whole system involves that matters relating to income tax are between the commissioners and the taxpayer concerned, and that the total confidentiality of assessments and of negotiations between individuals and the revenue is a vital element in the working of the system.
+See also Conway v Rimmer [1968] AC 910, 946 (Lord Reid); and R v Inland Revenue Comrs, Ex p Preston [1985] AC 835, 864F (Lord Templeman).
+The Marcel principle may be overridden by explicit statutory provisions.
+In In re Arrows Ltd (No 4) [1995] 2 AC 75, 102, Lord Browne Wilkinson said: In my view, where information has been obtained under statutory powers the duty of confidence owed on the Marcel principle cannot operate so as to prevent the person obtaining the information from disclosing it to those persons to whom the statutory provisions either require or authorise him to make disclosure.
+Subsections (2)(b) et seq of section 18 contain specific provisions permitting the disclosure of taxpayer information for various purposes other than HMRCs primary function of revenue collection and management.
+What then is the proper interpretation of the far broader words of subsection (2)(a)(i) disclosure made for the purposes of a function of HMRC? On HMRCs interpretation, it would be hard to conceive a wider expression.
+By taking sections 5, 9 and 51(2) in combination, it is said to include anything which in the view of HMRC is necessary or expedient or incidental or conducive to or in connection with the exercise of the functions of the collection and management of revenue.
+If that is the right interpretation of subsection (2)(a)(i), it means that a number of the subsequently listed specific exceptions are otiose, including (c) and (d), which deal with disclosure for the purposes of civil or criminal proceedings relating to matters connected with customs and excise.
+Secondly, and more fundamentally, it means that the protection which would otherwise have been provided to the taxpayer by HMRCs duty of confidentiality will have been very significantly eroded by words of the utmost vagueness.
+So to construe the words would run counter to the principle of construction known as the principle of legality, after Lord Hoffmanns use of the term in R v Secretary of State for the Home Office, Ex p Simms [2000] 2 AC 115, 131.
+He explained the principle as follows: Fundamental rights cannot be overridden by general or ambiguous words.
+This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process.
+In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.
+Lord Hoffmann said that this presumption will apply even to the most general words, but I would say further that the more general the words, the harder it is likely to be to rebut the presumption.
+A similar principle can be seen in the courts approach to the interpretation of powers delegated under a so called Henry VIII clause.
+In R (Public Law Project) v Lord Chancellor [2016] 3 WLR 387, para 26, Lord Neuberger of Abbotsbury PSC, with the agreement of the other members of the court, cited with approval the following passage in Craies on Legislation, 10th ed (2012), edited by Daniel Greenberg, at para 1.3.11: as with all delegated powers the only rule for construction is to test each proposed exercise by reference to whether or not it is within the class of action that Parliament must have contemplated when delegating.
+Although Henry VIII powers are often cast in very wide terms, the more general the words used by Parliament to delegate a power, the more likely it is that an exercise within the literal meaning of the words will nevertheless be outside the legislatures contemplation. (Emphasis added)
+To take the present case, the general principle of HMRCs duty of confidentiality regarding individual tax payers affairs is long established. (In 2011 Mr Hartnett articulated it when refusing to give any information to the House of Commons Public Accounts Committee about tax payers with whom HMRC had reached settlements.) In passing the 2005 Act, Parliament cannot be supposed to have envisaged that by section 18(2)(a)(i) it was authorising HMRC officials to discuss its views of individual taxpayers in off the record discussions, whenever officials thought that this would be expedient for some collateral purpose connected with its functions, such as developing HMRCs relations with the press.
+If Parliament really intended to delegate to officials such a wide discretion, limited only by a rationality test, in place of the ordinary principles of confidentiality applicable to public bodies in respect of confidential or private information obtained under statutory powers or for a statutory purpose, it would have significantly emasculated the primary duty of confidentiality recognised in section 18(1).
+For those reasons section 18(2)(a)(i) requires to be interpreted more narrowly.
+I take section 18(1) to be intended to reflect the ordinary principle of taxpayer confidentiality referred to in para 17, to which section 18(2)(a)(i) creates an exception by permitting disclosure to the extent reasonably necessary for HMRC to fulfil its primary function.
+It was argued by HMRC that despite being headed Confidentiality, section 18 is not confined to information which is in any real sense confidential, but is far wider in its scope.
+Therefore, it was argued, the exception contained in subsection (2)(a)(i) must be given a similarly expansive interpretation in order to avoid absurdity.
+In support of this argument HMRC relied on the wording of section 19, which makes it a criminal offence for an official to disclose revenue or customs information relating to an identifiable person, but provides a defence if the person charged proves that he reasonably believed that the information had already and lawfully been made available to the public.
+The creation of this defence showed, in HMRCs submission, that section 18 was not essentially or only about protecting confidentiality, because it self evidently extended to the disclosure of information which was already in the public domain.
+This argument found favour with the Court of Appeal, but I do not consider that it bears the weight which HMRC seeks to put on it.
+The argument is too subtle, and it is open to other objections.
+It is well settled that information may be available to the public and yet not sufficiently widely known for all confidentiality in it to be destroyed.
+As Eady J put it in McKennitt v Ash [2006] EMLR 10, para 81, where information has been obtained in circumstances giving rise to a duty of confidentiality, the protection of the law will not be withdrawn unless and until it is clear that a stage has been reached where there is no longer anything left to be protected.
+Whether that stage has been reached may be a hard question on which reasonable people may disagree.
+It is a fallacy to suppose that because a defence to a criminal charge under section 19 is available to a person who reasonably believed the information to be available to the public, it must follow that Parliament intended section 18 to prohibit the disclosure of information of the most ordinary kind about which there could be no possible confidentiality.
+Moreover, even if section 18(1) has the wide scope suggested by HMRC (which it is not necessary to decide in this case), it does not follow that Parliament must be taken to have intended by subsection (2)(a)(i) to confer on officials a wide ranging discretion to disclose confidential information about the affairs of individual taxpayers.
+The courts approach to review of HMRCs conduct
+Ordinarily it is a matter for the court to decide the question whether there has been a breach of a duty of confidentiality, applying established principles of law to its own judgment of the facts.
+Among other authorities, the point is well illustrated by the decision of the Court of Appeal in W v Egdell [1990] 1 Ch 359.
+The plaintiff was detained in a secure mental hospital, under a hospital order coupled with a restriction order, after pleading guilty to manslaughter on the grounds of diminished responsibility.
+The defendant, a consultant psychiatrist, was engaged on his behalf to prepare a report in connection with an intended application to a mental health review tribunal for his discharge.
+The defendants report presented a disturbing picture and it led to the withdrawal of the application.
+The defendant was nevertheless so concerned that matters in his report ought to be known to those responsible for the plaintiffs care and discharge that he sent a copy of it to the medical director at the hospital, with a view to its onward transmission to the Home Office.
+The plaintiff sued the defendant for breach of his contractual duty of confidence.
+Dismissing the action, the trial judge held that the doctors duty of confidentiality did not bar him from disclosing the report to the hospital if the doctor judged the report to be relevant to his care, nor from disclosing it to the Home Secretary if the doctor judged the report to be relevant to the exercise of the Home Secretarys discretionary powers.
+The Court of Appeal upheld the judges decision but not his approach.
+Bingham LJ said, at p 422, that the answer to the question whether the doctors disclosure was justified must turn not on what the doctor thinks but on what the court rules.
+He added that it did not follow that the doctors conclusion was irrelevant; in making its ruling the court would give such weight to the doctors considered judgment as seemed in all the circumstances to be appropriate.
+The same principle applies whether or not the duty of confidentiality is contractual.
+It applies equally where the person or body owing a duty of confidentiality holds a public office or is a public body or is performing a public function, subject to any contrary statutory provision.
+It is a cardinal error to suppose that the public law remedies and principles associated with judicial review of the exercise of administrative power, developed by the common law from the ancient prerogative writs, occupy the entire field whenever the party whose conduct is under challenge holds a public position.
+It is important to emphasise that public bodies are not immune from the ordinary application of the common law, including in this case the law of confidentiality.
+The common law is multi faceted and remains the bedrock of the English legal system.
+Having rejected the view that section 18(2)(a)(i) should be interpreted as making the disclosure of information about individual taxpayers a matter for the discretion of HMRC officials, subject only to a rationality control, I disagree with the view of the lower courts that it was not for them to approach the disclosures made by Mr Hartnett as if they were primary decision makers.
+In accordance with ordinary principles, the question of breach of confidentiality is one for the courts judgment.
+Off the record
+Off the record is an idiom and like many idioms can bear different shades of meaning.
+It may, for example, be intended to mean strictly confidential or it may be intended to mean not to be directly quoted or attributed.
+The judge found that Mr Hartnett understood it to mean that the interview was to be a background briefing, intended to influence the journalists views and what they wrote about matters affecting HMRC but not to be published.
+There has been no appeal against that finding, but nothing in my view turns on what precisely Mr Hartnett intended.
+As a matter of principle, a disclosure of confidential information may sometimes be permissible on a restricted basis. (In the case of W v Egdell, previously cited, the doctor was lawfully justified in passing on his report to those who had responsibility for the plaintiffs care, whereas it would not have been lawful to pass it to someone who had no such responsibility.) But an impermissible disclosure of confidential information is no less impermissible just because the information is passed on in confidence; every schoolchild knows that this is how secrets get passed on.
+The references by the courts below to the nature of the interview leave me in some doubt whether they had a clear regard for the distinction.
+Conclusion
+The information supplied by Mr Hartnett to the journalists about Mr McKenna and Ingenious Media was information of a confidential nature, in respect of which HMRC owed a duty of confidentiality to them under section 18(1).
+It was limited in scope, but it was not insignificant, as is evident from the use made of it in the articles which followed the interview.
+At the time of the interview the tax consequences of the film schemes discussed in it were under consideration by HMRC.
+The schemes themselves were things of the past.
+It is not suggested that the disclosures made by Mr Hartnett were reasonably necessary for the purpose of HMRCs investigations into the schemes.
+As to the justifications put forward by HMRC, a general desire to foster good relations with the media or to publicise HMRCs views about elaborate tax avoidance schemes cannot possibly justify a senior or any other official of HMRC discussing the affairs of individual tax payers with journalists.
+The further suggestion that the conversation might have led to the journalists telling Mr Hartnett about other tax avoidance schemes, of which HMRC knew nothing, appears to have been no more than speculation, and is far too tenuous to justify giving confidential information to them.
+The fact that Mr Hartnett did not anticipate his comments being reported is in itself no justification for making them.
+The whole idea of HMRC officials supplying confidential information about individuals to the media on a non attributable basis is, or should be, a matter of serious concern.
+I would not seek to lay down a rule that it can never be justified, because never say never is a generally sound maxim.
+It is possible, for example, to imagine a case where HMRC officials might be engaged in an anti smuggling operation which might be in danger of being wrecked by journalistic investigations and where for operational reasons HMRC might judge it necessary to take the press into its confidence, but such cases should be exceptional.
+I would reject the argument that the disclosure was justified under section 18(2)(a), allow the appeal and invite the parties written submissions as to the appropriate form of order.
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+During the period with which this case is concerned, the claimants (whom we shall refer to as Littlewoods) carried on catalogue sales businesses: that is to say, they distributed catalogues to customers and sold them goods shown in the catalogues.
+In order to carry on their businesses, they employed agents, who received a commission in return for their services.
+They could elect to be paid the commission either in cash or in kind.
+Commission was paid in cash at the rate of 10% of the sales achieved by the agent.
+Commission paid in kind took the form of goods supplied by Littlewoods, equal in price to 12.5% of the sales achieved by the agent.
+As suppliers of goods, Littlewoods were obliged to account to HMRC for the VAT due in respect of their chargeable supplies.
+Between 1973 and 2004, they accounted for VAT on the supplies which they made to their agents, as commission paid in kind, on the basis that the taxable amount of those supplies was reduced by the enhancement in the commission, that is to say by 2.5%.
+On a correct understanding of VAT law, the taxable amount of the supplies was actually reduced by the entire 12.5% which constituted the agents commission.
+Consequently, Littlewoods accounted for and paid more VAT to HMRC than was due.
+Between 2002 and 2004 Littlewoods submitted claims to HMRC for the repayment of overpaid VAT in accordance with section 80 of the Value Added Tax Act 1994 (the 1994 Act).
+In 2004, HMRC conceded that VAT had been overpaid, and since then it has been paid on the correct basis.
+Between 2005 and 2008, HMRC repaid 205m in accordance with section 80.
+In accordance with section 78 of the 1994 Act, HMRC also paid interest on the amount repaid.
+The interest was calculated on a simple basis, as section 78 required, and totalled 268m.
+In these proceedings, commenced in 2007, Littlewoods seek additional interest, calculated on a compound basis, on the ground that such interest is due under the common law.
+The additional interest totals 1.25 billion.
+The amount involved is so enormous because, under the law of limitation applicable to common law claims, the ordinary limitation period of six years does not begin to run, where an action is for relief from the consequences of a mistake, until the claimant has discovered the mistake or could with reasonable diligence have discovered it: Limitation Act 1980, section 32(1)(c).
+Littlewoods maintain that the period over which the interest has to be compounded, on that basis, is over 40 years.
+A further 5,000 claims for compound interest in connection with VAT or other taxes are stayed pending the resolution of these claims.
+The total amount involved in relation to VAT claims is estimated by HMRC at 17 billion.
+The basis of the claims
+The claims for compound interest are made on two bases.
+First, it is argued that HMRC are under a liability to make restitution on the basis that they were unjustly enriched by payments made under a mistake of law, applying the principle established in Kleinwort Benson Ltd v Lincoln County Council [1999] 2 AC 349 and Deutsche Morgan Grenfell Group plc v Inland Revenue Comrs [2006] UKHL 49; [2007] 1 AC 558.
+Although the payments have been reimbursed in accordance with section 80, it is argued that compound interest remains due at common law as restitution of the use value of the money mistakenly paid, applying the principle established in Sempra Metals Ltd v Inland Revenue Comrs [2007] UKHL 34; [2008] AC 561.
+Secondly, it is argued that HMRC are in any event liable to make restitution on the basis that they were unjustly enriched by payments of undue tax, applying the principle established in Woolwich Equitable Building Society v Inland Revenue Comrs [1993] AC 70, as explained in Test Claimants in the FII Group Litigation v Revenue and Customs Comrs [2012] UKSC 19; [2012] 2 AC 337.
+On that basis also, it is argued that compound interest remains due under the principle established in Sempra Metals.
+Woolwich type claims are only advanced, however, in respect of compound interest on overpayments made within the six years preceding issuance of the claim forms, in view of the limitation period applicable to such claims, and are therefore much more limited than the mistake based claims.
+Littlewoods contend that these common law claims are not excluded by sections 78 and 80 of the 1994 Act, as a matter of statutory construction.
+They also contend that, in any event, they have a right under EU law to compound interest on tax levied contrary to EU law.
+On that basis, they contend that, even if their claims to compound interest would otherwise be excluded by the provisions of the 1994 Act, the statute must be disapplied, or interpreted in such a way as to permit the claims to be made.
+The history of the proceedings
+A trial on liability was held before Vos J.
+In his judgment, he held that, as a matter of statutory construction, the claims were excluded by sections 78 and 80 of the 1994 Act: [2010] EWHC 1071 (Ch); [2010] STC 2072.
+He also held that the question whether the exclusion of the claims by those provisions was contrary to EU law should be referred to the Court of Justice of the EU.
+In a subsequent judgment, he determined the questions to be referred, and made the order for reference: [2010] EWHC 2771 (Ch); [2011] STC 171.
+At the same time, he made a declaration that the claims were, as a matter of English law and without reference to EU law, excluded by sections 78 and 80 of the 1994 Act.
+The questions referred were the following: Question 1: Where a taxable person has overpaid VAT which was collected by the member state contrary to the requirements of EU VAT legislation, does the remedy provided by a member state accord with EU law if that remedy provides only for (a) reimbursement of the principal sums overpaid, and (b) simple interest on those sums in accordance with national legislation, such as section 78 of the Value Added Tax Act 1994? Question 2: If not, does EU law require that the remedy provided by a member state should provide for (a) reimbursement of the principal sums overpaid, and (b) payment of compound interest as the measure of the use value of the sums overpaid in the hands of the member state and/or the loss of the use value of the money in the hands of the taxpayer? Question 3: If the answer to both questions one and two is in the negative, what must the remedy that EU law requires the member state to provide include, in addition to reimbursement of the principal sums overpaid, in respect of the use value of the overpayment and/or interest? Question 4: If the answer to question 1 is in the negative, does the EU law principle of effectiveness require a member state to disapply national law restrictions (such as sections 78 and 80 of the Value Added Tax Act 1994) on any domestic claims or remedies that would otherwise be available to the taxable person to vindicate the EU law right established in the Court of Justices answer to the first three questions, or can the principle of effectiveness be satisfied if the national court disapplies such restrictions only in respect of one of these domestic claims or remedies? What other principles should guide the national court in giving effect to this EU law right so as to accord with the EU law principle of effectiveness?
+The Court of Justice (Grand Chamber) (CJEU or the court) examined the questions together, and reformulated them as asking in essence, whether, in a situation such as that at issue in the cases in the main proceedings, in which an amount of VAT overpaid by reason of non compliance with EU law has been repaid to the taxpayer concerned, it is in accordance with EU law for national law to provide for the payment of only simple interest on that sum, or whether EU law requires national law to provide for payment of compound interest as a counterpart for the value of the use of the overpaid sums and/or the loss of the value of the use of the latter or for another method of reparation which, in that latter case, the court is asked to specify: (Case C 591/10) [2012] STC 1714, para 22.
+The court answered the question as follows at para 35: European Union law must be interpreted as requiring that a taxable person who has overpaid value added tax which was collected by the member state contrary to the requirements of European Union legislation on value added tax has a right to reimbursement of the tax collected in breach of European Union law and to the payment of interest on the amount of the latter.
+It is for national law to determine, in compliance with the principles of effectiveness and equivalence, whether the principal sum must bear simple interest, compound interest or another type of interest.
+The High Court proceedings then resumed before Henderson J, who heard a trial of all outstanding issues.
+In his judgment, he held that Littlewoods claims succeeded in full: [2014] EWHC 868 (Ch); [2014] STC 1761.
+In particular, he held that only an award of compound interest would satisfy Littlewoods rights under EU law, that the exclusion of the claims by sections 78 and 80 of the 1994 Act was therefore incompatible with EU law, and that those provisions had to be disapplied so as to allow Littlewoods to pursue their claims.
+Both parties appealed.
+The Court of Appeal (Arden, Patten and Floyd LJJ) upheld Henderson Js conclusions on all issues, and dismissed both sides appeals: [2015] EWCA Civ 515; [2016] Ch 373.
+Both parties now appeal to this court.
+The first issue is raised by Littlewoods cross appeal, and is whether Vos J and the Court of Appeal were correct in holding that Littlewoods claims are excluded by sections 78 and 80 of the 1994 Act, as a matter of English law and without reference to EU law.
+If not, then it follows that Littlewoods are free to bring any common law claims available to them without statutory impediment, and do not need to rely on EU law in order to overcome a statutory bar.
+The remainder of the issues are raised by HMRCs appeal.
+The second issue is whether, if Littlewoods claims are excluded by sections 78 and 80 of the 1994 Act, that exclusion is contrary to EU law.
+A number of further issues are raised in the appeal, but they only arise for decision if Littlewoods succeed on either of the first two issues.
+In other words, if Littlewoods fail on the first and second issues, then it follows that their claims are excluded by statutory provisions which are not incompatible with EU law, and that their claims must therefore be rejected.
+The first issue
+In considering the effect of sections 78 and 80 of the 1994 Act, it may be helpful to begin with section 80.
+This was first enacted as section 24 of the Finance Act 1989 and brought into force on 1 January 1990.
+Since its consolidation in the 1994 Act it has undergone amendment on a number of occasions.
+The version in force at the time when Littlewoods commenced the present proceedings is, so far as relevant, in the terms set out below.
+Later amendments are not relevant for present purposes: 80.
+Credit for, or repayment of, overstated or overpaid VAT. (1) Where a person (a) has accounted to the Commissioners for VAT for a prescribed accounting period (whenever ended), and in doing so, has brought into account as output (b) tax an amount that was not output tax due, the Commissioners shall be liable to credit the person with that amount. (1A) Where the Commissioners (a) have assessed a person to VAT for a prescribed accounting period (whenever ended), and (b) tax an amount that was not output tax due, in doing so, have brought into account as output they shall be liable to credit the person with that amount. (1B) Where a person has for a prescribed accounting period (whenever ended) paid to the Commissioners an amount by way of VAT that was not VAT due to them, otherwise than as a result of (a) brought into account as output tax, or (b) 26 not being brought into account, an amount of input tax allowable under section an amount that was not output tax due being the Commissioners shall be liable to repay to that person the amount so paid. (2) The Commissioners shall only be liable to credit or repay an amount under this section on a claim being made for the purpose. (2A) Where (a) as a result of a claim under this section by virtue of subsection (1) or (1A) above an amount falls to be credited to a person, and (b) after setting any sums against it under or by virtue of this Act, some or all of that amount remains to his credit, the Commissioners shall be liable to pay (or repay) to him so much of that amount as so remains. (3) It shall be a defence, in relation to a claim under this section by virtue of subsection (1) or (1A) above, that the crediting of an amount would unjustly enrich the claimant . (4) The Commissioners shall not be liable on a claim under this section (a) (1) or (1A) above, or (b) (1B) above, to repay an amount to a person under subsection to credit an amount to a person under subsection if the claim is made more than three years after the relevant date [ie the end of the prescribed accounting period] . (6) A claim under this section shall be made in such form and manner and shall be supported by such documentary evidence as the Commissioners prescribe by regulations; and regulations under this subsection may make different provision for different cases. (7) Except as provided by this section, the Commissioners shall not be liable to credit or repay any amount accounted for or paid to them by way of VAT that was not VAT due to them.
+In view of the three year limitation period laid down by section 80(4), it is necessary to explain how Littlewoods were able to make claims between 2002 and 2004 for the recovery of overpaid tax going back to 1973.
+As originally enacted, section 80 provided for a limitation period of six years unless the undue tax had been paid by reason of a mistake, in which event a claim could be made at any time within six years from the date on which the claimant discovered the mistake or could with reasonable diligence have discovered it.
+That limitation period was reduced to one of three years, as in the version of section 80(4) set out above, by an amendment enacted by section 47 of the Finance Act 1997.
+The amendment was brought into force with retrospective effect from the first announcement of the change on 18 July 1996.
+The retrospective introduction of the reduced limitation period, without any transitional arrangements for cases where a right to recovery of overpaid tax already existed, was held by the CJEU to be incompatible with EU law: Marks & Spencer plc v Customs and Excise Comrs (Case C 62/00) [2003] QB 866.
+The House of Lords subsequently decided that the reduced limitation period had to be disapplied in respect of rights which had accrued before it was brought into force: Fleming (trading as Bodycraft) v Revenue and Customs Comrs [2008] UKHL 2; [2008] 1 WLR 195.
+It is on that basis that HMRC have repaid Littlewoods the overpaid tax back to 1973.
+The position was addressed legislatively in section 121 of the Finance Act 2008, which excluded the application of section 80(4) of the 1994 Act to claims in respect of amounts brought into account or paid before 4 December 1996, provided the claim was made before 1 April 2009.
+For present purposes, the most material provisions of section 80 are subsections (3), (4) and (7).
+Section 80(3) provides HMRC with a statutory defence to a claim under section 80 where reimbursing the taxpayer who made the overpayment would unjustly enrich him.
+The possibility of unjust enrichment (in a non technical sense) arises because the taxpayer often passes on to his customers the burden of the output tax for which he accounts to HMRC.
+Section 80A (as inserted by section 46(2) of the Finance Act 1997), and the Value Added Tax Regulations 1995 (SI 1995/2518), as amended, create a scheme under which the defence is disapplied where reimbursement arrangements are made with the purpose of ensuring that the payment to the taxpayer is used to reimburse the customers who have borne the economic burden of the tax.
+Section 80(4) lays down a limitation period for claims under the section which, following the amendment effected by the Finance Act 1997, is shorter than the period of six years, capable of extension where a mistake has been made, which would apply to a common law claim in unjust enrichment under the Limitation Act 1980.
+A statutory claim by the taxpayer must therefore be brought within a shorter and more certain period of time.
+The evident aim is to protect public finances against the risk of a liability to repay tax emerging more than three years after the tax was received.
+That is consistent with the background to the amendment: as Lord Walker of Gestingthorpe explained in the Fleming case at para 36, it was prompted by developments in the case law of the CJEU which exposed HMRC to the risk of claims for repayment of large amounts of output tax, some of it going back for many years.
+As this court put it in Investment Trust Companies v Revenue and Customs Comrs [2017] UKSC 29; [2017] 2 WLR 1200, para 88, the limitation period is designed to avoid the disruption of public finances.
+In section 80, Parliament has thus created a specific remedy for taxpayers who have overpaid VAT, but has done so subject to limitations, including those set out in subsections (3) and (4).
+Those limitations would have no equivalent in a common law claim, and would therefore be defeated if it were possible for the taxpayer, or his customers, to bring such a claim.
+Parliament cannot have intended the special regime in section 80 to be capable of circumvention in that way.
+That is reflected in section 80(7), which provides that HMRC shall not be liable to repay an amount paid to them by way of VAT on the ground that it was not due, except as provided by this section.
+In the light of section 80(3) and (4), this court concluded in Investment Trust Companies that section 80(7) should be construed as excluding non statutory claims by customers, as well as taxpayers (as was conceded), which might otherwise lie against HMRC in circumstances falling within the scope of section 80.
+As the court stated: Parliament cannot sensibly be taken to have intended, when it created this scheme for the reimbursement of suppliers (with provision for them in turn to reimburse their customers), subject to strict time limits, that it should exist concurrently with non statutory liabilities towards suppliers and their customers which were potentially wider in scope and were subject to a longer and less certain limitation period.
+Such an intention would be inconsistent with the rationale of the statutory scheme. (para 84)
+Littlewoods take no issue with that conclusion.
+They made their claims for the repayment of the tax under section 80, and they accept that no other route to the recovery of the tax was open to them.
+But, they argue, section 80 does not deal with the question of interest, and has no bearing on their present claims.
+Interest is addressed in the statutory scheme by section 78, and that section, they argue, provides a statutory right to interest which is of a residual character, and leaves common law claims unaffected.
+Section 78 of the 1994 Act was originally enacted as section 38A of the Value Added Tax Act 1983, inserted by section 17 of the Finance Act 1991, which received the Royal Assent on 25 July 1991.
+It was then consolidated in the 1994 Act together with an amendment (immaterial for present purposes) which had been made in 1992.
+Like section 80, it has undergone frequent amendment.
+In the version in force when Littlewoods commenced the present proceedings, it provides, so far as material: 78.
+Interest in certain cases of official error. (1) Where, due to an error on the part of the Commissioners, a person has accounted to them for an amount by way of (a) output tax which was not output tax due from him and, as a result, they are liable under section 80(2A) to pay (or repay) an amount to him, or (b) failed to claim credit under section 25 for an amount for which he was entitled so to claim credit and which they are in consequence liable to pay to him, or (otherwise than in a case falling within paragraph (c) (a) or (b) above) paid to them by way of VAT an amount that was not VAT due and which they are in consequence liable to repay to him, or (d) due to him from them in connection with VAT, suffered delay in receiving payment of an amount then, if and to the extent that they would not be liable to do so apart from this section, they shall pay interest to him on that amount for the applicable period, but subject to the following provisions of this section . (3) applicable under section 197 of the Finance Act 1996 . (10) The Commissioners shall only be liable to pay interest under this section on a claim made in writing for that purpose.
+Interest under this section shall be payable at the rate (11) A claim under this section shall not be made more than three years after the end of the applicable period to which it relates [ie the period ending when the Commissioners authorise payment of the amount on which the interest is payable]. (emphasis added)
+As originally enacted, section 78(11) provided for a limitation period of six years running from the date on which the claimant discovered HMRCs error or could with reasonable diligence have discovered it.
+Like the corresponding provision in section 80, it was amended by the Finance Act 1997 so as to impose a three year period, with retrospective effect, and with no transitional provisions.
+In view of the incompatibility of that situation with EU law, HMRC have paid Littlewoods interest under section 78, back to 1973, on the amount repaid to them under section 80.
+Littlewoods cross appeal centres on the words in section 78(1) which we have italicised (if and to the extent that they would not be liable to do so apart from this section).
+They argue that those words should be given their ordinary meaning.
+So construed, section 78 yields to any other liability to pay interest.
+The purpose of the legislation, so they argue, is to create a liability to pay interest where none would otherwise exist.
+However, following the decision of the House of Lords in Sempra Metals, where HMRC have had the use of money as a result of the payment of tax which was not due, it is possible for the taxpayer to bring a claim for compound interest on the money in question under the common law, on the ground of unjust enrichment.
+Since a liability to meet such a claim is one which exists apart from section 78, it is not excluded by section 78.
+This argument has been consistently rejected by the courts, but for a variety of different reasons.
+In F J Chalke Ltd v Revenue and Customs Comrs [2009] EWHC 952 (Ch); [2009] STC 2027, Henderson J focused on the fact that section 80(7) excludes any common law liability to repay the overpaid VAT, and inferred that it must also exclude any common law liability to pay interest: the exclusion in section 80(7) of any liability to repay overpaid VAT save as provided for by section 80 necessarily prevents the recovery of any interest on the overpaid VAT, except where section 78 or some other statutory provision provides an entitlement to such interest (para 74).
+The difficulty with that reasoning, as the Court of Appeal pointed out in the present case (paras 37 42), is that it was held in Sempra Metals that a restitutionary claim in respect of the use value of money is distinct from a restitutionary claim in respect of the money itself: the right to recover interest was described as a free standing cause of action.
+On that basis, it would appear, at least on a strict reading, that even if the cause of action for repayment of the overpaid tax is swept away by section 80(7), that may not exclude a cause of action in respect of the use value of the money.
+In the present case, Vos J considered that sections 78 and 80 had to be regarded as creating an integrated regime for repayments of overstated and overpaid VAT, which should be read as a whole.
+Paragraphs (a) and (c) of section 78(1) applied specifically to cases where repayments were due under section 80.
+If, however, the critical words in section 78(1) covered common law restitution claims, then the right to interest under section 78 would be disapplied in every case where repayments were due under section 80.
+In those circumstances, to construe the critical words as including common law restitutionary claims would make a nonsense of the provision (para 60).
+The Court of Appeal focused on the fact that the critical words in section 78(1) concern liabilities to pay interest.
+In their view, it was a strained use of language to describe a liability to make restitution for the time value of money as a liability to pay interest, even if the relief was calculated by reference to interest rates (para 45).
+There are two difficulties with this reasoning.
+The first is that it is difficult to see any substantial distinction between a liability to pay for the time value of money and a liability to pay interest: interest is a measure of the time value (or use value) of money.
+The second is that, if Littlewoods claim does not concern a liability to pay interest, it is difficult to see how it can be affected by section 78, which is solely concerned with interest.
+Despite the attractive way in which Littlewoods argument was presented, we agree with the courts below that it should be rejected.
+It is notable in the first place that the scheme established by section 78 applies in circumstances falling within paragraphs (a) to (d) of subsection (1).
+Although section 78(1) is not confined to circumstances in which a repayment is due under section 80, such circumstances fall within its scope.
+The present case falls under paragraph (a), which applies expressly where a person has accounted to HMRC for output tax which was not due, and, as a result, they are liable under section 80(2A) to pay (or repay) an amount to him.
+HMRC are only liable to pay interest on the repayment under section 78, however, if the circumstances leading to the repayment are due to an error on the part of the Commissioners.
+That limitation strongly suggests that section 78 is intended to be exclusive of any common law right to interest on the repayment.
+What would be the point of limiting interest under section 78 to cases of official error, if interest was generally available at common law regardless of whether any official error had been made?
+Secondly, section 78(3) specifies the rate of interest payable by reference to section 197 of the Finance Act 1996, which in turn enables the rate to be set by regulations.
+Rates have been set by statutory instrument for the whole lifetime of VAT back to 1 April 1973.
+The interest is calculated on a simple rather than a compounded basis.
+The provision again suggests that section 78 is intended to be exclusive of any common law right to interest, which might be calculated at other rates and on a different basis.
+Thirdly, section 78(11) lays down a limitation period for claims under the section which is shorter than the period of six years, with the potential for an extension in the event of mistake, which would apply to a common law claim in unjust enrichment under the Limitation Act 1980.
+Like the corresponding provision in section 80, that shortened limitation period must be intended to protect public finances from disruption.
+In section 78, Parliament has thus created a specific right to interest for taxpayers who have overpaid VAT, but has done so subject to limitations, including those set out in subsections (1), (3) and (11).
+Those limitations are a special feature of the statutory regime and would have no equivalent in a common law claim.
+They would therefore be defeated if it were possible for the taxpayer to bring a common law claim.
+Parliament cannot have intended the special regime in section 78 to be capable of circumvention in that way.
+Unlike section 80, however, section 78 contains no provision expressly excluding alternative remedies.
+That does not prevent the exclusion of alternative remedies by implication.
+As Littlewoods point out, however, the critical words in subsection (1) acknowledge that there are other rights to interest which must be given priority.
+Read literally, those words would apply to common law rights to interest; but that reading, as we have explained, would render the limitations in subsections (1), (3) and (11) effectively pointless.
+How, then, are those words to be construed in the context of the provision as a whole?
+Lord Bingham of Cornhill stated, in relation to statutory interpretation: The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed.
+But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulty.
+In R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687, para 8, In that regard, his Lordship cited the speech of Lord Wilberforce in Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800, 822: In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time.
+It is a fair presumption that Parliaments policy or intention is directed to that state of affairs.
+At the time of when section 78 was enacted, interest was available under the VAT legislation only in limited circumstances, discussed below.
+Interest was also available under statute on a sum for which judgment was given in proceedings for the recovery of a debt or damages: Senior Courts Act 1981, section 35A (as inserted by section 15 of the Administration of Justice Act 1982).
+Under the common law, on the other hand, the general rule was that the court had no power, in the absence of agreement, to award interest as damages for the late payment of a debt: London, Chatham and Dover Railway Co v South Eastern Railway Co [1893] AC 429.
+An exception to that general rule existed where loss due to late payment constituted special damage within the contemplation of the parties, under the second limb of Hadley v Baxendale (1854) 9 Exch 341: President of India v La Pintada Cia Navigacion SA [1985] AC 104.
+So far as restitutionary claims were concerned, it had been held that in an action for money had and received only the net sum could be recovered: Johnson v The King [1904] AC 817, applying London, Chatham and Dover Railway Co v South Eastern Railway Co.
+Against that background, the statutory scheme established by section 78 was more generous than the common law, as then understood.
+In this context, the aspect of the decision in Sempra Metals which is important is that it was accepted for the first time that a claim would lie at common law for the use value of money by which the defendant was unjustly enriched, even if the money itself had been repaid, and that the enrichment could normally be calculated by compounding interest over the period of the enrichment.
+That decision was not contemplated by Parliament when it enacted sections 78 and 80, many years earlier.
+If a claim based on the principle established by that decision were held to be available to Littlewoods, on the basis that it fell within the critical words in section 78(1) (if and to the extent that they would not be liable to do so apart from this section), then it would equally be available in any other case where an amount was paid under section 80.
+As counsel for Littlewoods accepted in argument, section 78 would effectively become a dead letter.
+It follows that the literal reading fatally compromises the statutory scheme created by Parliament.
+It cannot therefore be the construction of the critical words which Parliament intended.
+Is it possible to construe the critical words more narrowly than their literal sense? What source or sources of a liability to pay interest can Parliament have contemplated, which were to take priority over the liability created by section 78? Given the background which we have explained, such sources can only have been statutory.
+One such source is the power to award interest following a decision on an appeal, originally enacted in section 40(4) of the Finance Act 1972 and now contained in section 85A of the 1994 Act (as inserted by paragraph 223 of Schedule 1 to the Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (SI 2009/56)).
+Another is the power to award interest where an appeal is settled, originally enacted in section 25 of the Finance Act 1985, and now contained in section 85 of the 1994 Act.
+A third example is the power to award interest on an amount for which judgment is given, under section 35A of the Senior Courts Act 1981.
+The effect of the critical words in section 78(1) is to give priority to provisions such as these, and to prevent double recovery by the taxpayer.
+The reservation in section 78(1) (if and to the extent that they would not be liable to do so apart from this section) must therefore be interpreted as referring only to statutory liabilities.
+It is not a literal construction, but a departure from a literal construction is justified where it is necessary to enable the provision to have the effect which Parliament must have intended.
+Summary on issue 1
+Since the scheme created by section 78 is inconsistent with the availability of concurrent common law claims to interest, it must therefore be interpreted as impliedly excluding such claims.
+The reservation set out in section 78(1) must therefore be construed as referring only to statutory liabilities to pay interest.
+So construed, section 78 impliedly excludes the claims made by Littlewoods, as a matter of English law, and without reference to EU law.
+The second issue
+On this second issue HMRC challenge the interpretation which Henderson J and the Court of Appeal have placed on the judgment of the CJEU, to which we have referred in para 12 above.
+The question for this court is the proper interpretation of that judgment.
+As we shall seek to demonstrate, the central question is whether the CJEU has ruled that HMRC must reimburse in full the use value of the money which over an exceptionally long period of time Littlewoods has paid by mistake.
+In order to answer that question, it is necessary to set out the central paragraphs of the CJEUs judgment which support the ruling in that judgment (para 35), which we have quoted in para 12 above.
+In para 24 of its judgment the CJEU recorded its settled case law that the right to a refund of charges levied in a member state in breach of rules of EU law is a consequence and complement of the rights conferred on individuals by provisions of EU law as interpreted by the Court.
+In that regard, the CJEU referred to Amministrazione delle Finanze dello Stato v SpA San Giorgio (Case 199/82) [1983] ECR 3595, para 12 and Metallgesellschaft Ltd v Inland Revenue Comrs (Joined Cases C 397/98 and C 410/98) [2001] Ch 620; [2001] ECR I 1727, para 84.
+It continued: The member state is therefore in principle required to repay charges levied in breach of Community law [Socit Comateb v Directeur Gnral des Douanes et Droits Indirects (Joined Cases C 192/95 to C 218/95) [1997] ECR I 165, para 20; Metallgesellschaft, para 84; Webers Wine World Handels GmbH v Abgabenberufungskommission Wien (Case C 147/01) [2003] ECR I 11365, para 93; Test Claimants in the FII Group Litigation (Case C 446/04) [2006] ECR I 11753, para 202)]. 25.
+The Court has also held that, where a member state has levied charges in breach of the rules of Community law, individuals are entitled to reimbursement not only of the tax unduly levied but also of the amounts paid to that state or retained by it which relate directly to that tax.
+That also includes losses constituted by the unavailability of sums of money as a result of a tax being levied prematurely (Metallgesellschaft, paras 87 to 89, and Test Claimants in the FII Group Litigation, para 205). 26.
+It follows from that case law that the principle of the obligation of member states to repay with interest amounts of tax levied in breach of EU law follows from that law. 27.
+In the absence of EU legislation, it is for the internal legal order of each member state to lay down the conditions in which such interest must be paid, particularly the rate of that interest and its method of calculation (simple or compound interest).
+Those conditions must comply with the principles of equivalence and effectiveness; that is to say that they must not be less favourable than those concerning similar claims based on provisions of national law or arranged in such a way as to make the exercise of rights conferred by the EU legal order practically impossible (see, to that effect, [San Giorgio, para 12; Webers Wine World, para 103; and MyTravel plc v Commissioners of Customs and Excise (Case C 291/03) [2005] ECR I 8477, para 17]). 28.
+Thus, according to consistent case law, the principle of effectiveness prohibits a member state from rendering the exercise of rights conferred by the EU legal order impossible in practice or excessively difficult [(R (Wells) v Secretary of State for Transport, Local Government and the Regions (Case C 201/02) [2004] ECR I 723, para 67, and i 21 Germany GmbH v Federal Republic of Germany (Joined Cases C 392/04 and C 422/04) [2006] ECR I 8559, para 57)]. 29.
+In this case that principle requires that the national rules referring in particular to the calculation of interest which may be due should not lead to depriving the taxpayer of an adequate indemnity for the loss occasioned through the undue payment of VAT. 30.
+It is for the referring court to determine whether that is so in the case at issue in the main proceedings, having regard to all the circumstances of the case.
+In that regard it should be noted that it is apparent from the order for reference that, under the provisions of section 78 of the VATA 1994, the Commissioners paid Littlewoods interest on the VAT levied in breach of EU law.
+Pursuant to those provisions, Littlewoods received payment of simple interest, in accordance with the said provisions, in an amount of GBP 268,159,135, corresponding to interest due over about 30 years, which amount exceeds by more than 23% that of the principal sum, which amounts to GBP 204,774,763.
+The CJEU then addressed what was required in order to comply with the principle of equivalence; but no question concerning that principle arises in this case.
+Before both Henderson J and the Court of Appeal Littlewoods succeeded in their assertion that EU law, as laid down in this judgment of the CJEU, gave them a right to a full reimbursement of their loss caused by their mistaken payment of VAT.
+At the trial before Henderson J, Littlewoods led evidence from Professor John Kay that reimbursement of the use value of money over long periods of time required the payment of compound interest and that the simple interest, which HMRC had paid, reimbursed only about 24% of Littlewoods loss, which amounted to approximately 1.2 billion.
+Littlewoods argued that simple interest therefore did not give an adequate indemnity or reimbursement of Littlewoods loss as EU law required.
+In order to understand the debate in this appeal and the reasons for our conclusions, it is useful to summarise the relevant parts of Henderson Js impressive judgment.
+Henderson J upheld Littlewoods submission essentially because he interpreted the reference to an adequate indemnity in para 29 of the CJEUs judgment as a right to reimbursement of the losses representing the time value of unlawfully levied tax which the member state retained.
+Those losses resulted from the unavailability to the taxpaying company of the sums of money which it had erroneously paid as tax.
+The CJEU had held in para 25 that those losses fell within the sums retained by the state which relate directly to that tax.
+The right to interest to make good those losses had been recognised as a right conferred by EU law (para 260).
+He found support for that interpretation of the CJEU judgment in two later judgments of the CJEU.
+In the first, British Sugar plc v Rural Payments Agency (Case C147/10) heard with Zuckerfabrik Jlich AG v Hauptzollamt Aache (Case C 133/10) and Socit Tereos v Directeur gnral des douanes et droits indirects (Case C 234/10) EU:C:2012:591, the Fourth Chamber of the CJEU held that interest was payable by the national body, the Rural Payments Agency, on invalidly levied sugar levies even if it could not recover interest on those levies from the EU institution, to which it had paid them, and it had not been enriched by the receipt of the levies.
+This, Henderson J held, emphasised the potency of the right to interest in EU law, which the CJEU appeared to regard as conceptually indistinguishable from the right to repayment of the unlawfully levied tax (para 263).
+The second case, Irimie v Administratia Finantelor Publice Sibiu (Case C 565/11) [2013] STC 1321, concerned a rule of Romanian law which provided that interest on unlawfully levied tax, which had to be repaid, ran only from the date of the claim for repayment and not from the date when the tax had been paid.
+The CJEU held (paras 26 28) that the temporal limitation on the accrual of interest did not meet the requirements of the courts ruling in Littlewoods that the calculation of interest should not lead to depriving the taxpayer of adequate compensation for the loss sustained through the undue payment of tax.
+Henderson J expressed the view that the case advanced by Littlewoods in their detailed written observations to the CJEU assisted in interpreting the judgment of the court.
+Littlewoods had argued not that EU law always required the payment of compound interest on overpaid tax but that interest reflecting the use value of the money received should always be paid in order to satisfy the principle of effectiveness (para 273).
+Littlewoods had founded on the decision of the CJEU in Marshall v Southampton and South West Hampshire Health Authority (Teaching) (No 2) (Case C 271/91) [1994] QB 126; [1993] ECR I 4367.
+That case concerned the measure of compensation in a successful claim for sex discrimination arising from the health authoritys provision of an earlier compulsory retirement age for women compared with that for men in the same employment.
+The health authority paid her the maximum sum of 6,250 which was then permitted as compensation under the Sex Discrimination Act 1975 and the House of Lords referred to the CJEU the question whether it was essential to the due implementation of article 6 of Council Directive 76/207/EEC (the Equal Treatment Directive) that her compensation should not be less than the loss she had sustained and that it should include an award of interest.
+The CJEU held (paras 22 26) that the object of article 6 of the Equal Treatment Directive was to arrive at real equality of opportunity; when financial compensation was the measure adopted to achieve that objective, it must be adequate, in that it must enable the loss and damage actually sustained as a result of the discriminatory dismissal to be made good in full in accordance with applicable national rules.
+In relation to the award of interest, the CJEU held (para 31) that full compensation could not leave out of account factors, such as the effluxion of time, which reduce its value; an award of interest in accordance with applicable national rules was therefore an essential component of compensation for the purpose of restoring real equality of treatment.
+Henderson J considered that the references in that case to adequate compensation, with the connotation of full compensation, involved similar language to the phrase an adequate indemnity in para 29 of the CJEUs judgment in this case (para 279).
+Henderson J interpreted the CJEUs judgment in the present case as having held that the right to interest on unduly levied tax is a right conferred by EU law which ranked equally with the right to repayment of the unlawful tax itself.
+That was the substance of the EU right which the CJEU established in para 26 of its judgment (para 287).
+The principle of effectiveness, which sets minimum standards for the enforcement and protection of EU rights in national law, was a secondary or adjectival principle, which did not define the substance of those rights and could not whittle down those rights (para 286).
+He looked at English dictionary definitions of adequate and indemnity (para 292) in support of his conclusions, and faced up to the puzzling questions (a) why the CJEU had not given clearer guidance that compound interest was required and (b) why the CJEU in the final sentence of para 30 had referred to the sums which HMRC had paid (para 296).
+He accepted that he did not have a satisfactory answer to the latter question (para 299).
+He stated his conclusion on this matter in these terms (para 302): In sum, my overall conclusion on the difficult question of the meaning of the adequate indemnity test in para 29 of the [CJEUs] judgment is that it requires payment of an amount of interest which is broadly commensurate with the loss suffered by the taxpayer of the use value of the tax which he has overpaid, running from the date of payment until the date of repayment.
+On that basis, the simple interest which HMRC had paid could not have provided Littlewoods with an adequate indemnity for their loss (para 310).
+The Court of Appeal, like the judge, considered that it was logically necessary to identify the content of the right to interest, which the CJEU had recognised in this case, before answering the question whether the UKs rules in section 78 of VATA gave effect to the right in accordance with the principle of effectiveness.
+The Court focussed on para 25 of the CJEUs judgment, treating the word reimbursement as very important (para 94).
+That right to reimbursement included losses constituted by the unavailability of money (para 96).
+This approach was supported by the CJEUs judgment in Irimie (above).
+Para 27 of the CJEUs judgment, on which HMRC had relied in their submissions, did not modify the content of that right.
+The Court of Appeal therefore rejected HMRCs submission that an adequate indemnity in para 29 of the CJEUs judgment only required that a member state provide for interest in some recognisable form and stated that the test was that the taxpayer was entitled to reimbursement of the losses constituted by the unavailability of sums of money as a result of a tax being levied (para 107).
+We have reached a different but nonetheless clear view as to the meaning of the CJEUs judgment in this case.
+In our view the phrase an adequate indemnity in para 29 of the judgment, when construed in the context of the wider judgment, and in particular the paragraphs which we have quoted in para 43 above, bears a broader meaning than that which Henderson J and the Court of Appeal favoured, and suggests that the CJEU has given member state courts a discretion to provide reasonable redress in the form of interest in addition to the mandatory repayment of any wrongly levied tax, interest and penalties.
+We have three reasons for this view.
+First, the structure of the CJEUs judgment itself and its choice of words support this conclusion.
+Secondly, the practice of member states in awarding interest on wrongly levied tax provides the context of the CJEUs judgment and suggests that the court was not being as radical as the courts below have held.
+Thirdly, prior and subsequent case law of the CJEU is consistent with this interpretation.
+We examine each in turn.
+First, the structure of the relevant passage in the CJEUs judgment can be analysed in three parts.
+The first part is paras 24 to 26 in which the CJEU sets out the prior case law which established the right to a refund of charges levied by a member state in breach of EU law, and the extension of that right by Metallgesellschaft (above) and Test Claimants in the FII Group Litigation v Inland Revenue Comrs (Case C 446/04) (Note) [2012] 2 AC 436 to include other amounts retained by the member state, including compensation for the unavailability of sums of money paid as tax.
+We discuss those cases when we set out the third reason below.
+The conclusion which the CJEU reaches from the case law set out in paras 24 and 25 is stated in para 26 and merits repetition: It follows from that case law that the principle of the obligation of member states to repay with interest amounts of tax levied in breach of EU law follows from that law.
+There is therefore a general entitlement to interest on tax levied in breach of EU law.
+In the courts below, emphasis was placed on the CJEUs use of the word reimbursement in para 25 when it speaks of the reimbursement of losses constituted by the unavailability of money.
+We do not attach such significance to a single word, considered in isolation.
+It is necessary to consider para 25 in the context of the judgment as a whole.
+In our view, consistently with the conclusion expressed in para 26, reimbursement of loss means no more than recompense or compensation, which is achieved through the payment of some form of interest.
+In relation to the principal sums, whether of tax, interest or penalties levied by the member state, the compensation would be full compensation in order to achieve restitution of those principal sums.
+But interest is a means of compensating a person for being kept out of his money.
+The measure of such compensation is not as straightforward as the calculation of the principal sums which must be repaid.
+The Court does not specify the level of the compensation for the unavailability of money which that interest is to provide.
+Instead, the CJEU confirms in this first part that there is an EU principle that a member state must repay with interest charges which it has levied in breach of EU law.
+It is in the second part that the CJEU lays down what EU law requires member states to provide by way of interest.
+In the second part, which is paras 27 to 29, the CJEU restates the principle that it is for the internal order of each member state to lay down the conditions in which such interest must be paid.
+The member state is given a discretion both as to the interest rate and also as to the method of calculation, in particular whether it is simple or compound interest.
+That discretion is qualified by the established EU law principles of equivalence and effectiveness.
+The former principle, which in this context requires that the interest to be awarded must not be less favourable than that which would be paid on similar claims for the repayment of unduly levied tax under domestic law, is not in issue.
+The latter principle, the principle of effectiveness, is in issue as it gives the context of the phrase an adequate indemnity in para 29.
+We discuss the principle further when we set out the third reason below.
+Paragraph 29 of the judgment describes what the principle of effectiveness requires.
+It is that the national rules on the calculation of interest should not deprive the taxpayer of an adequate indemnity for the loss occasioned through the undue payment of the tax.
+The phrase, an adequate indemnity has a less definitive meaning than full reimbursement.
+The French text of the judgment speaks of une indemnisation adquate and the German text refers to eine angemessene Entschdigung.
+In both languages, as in English, the words chosen can support a range of meanings, including the meaning of adequate compensation or reasonable redress, which are not tied into the idea of full compensation for the time value of money.
+In using the principle of effectiveness to require the existence of an adequate indemnity but not expressing a definitive view on the adequacy of simple interest, the CJEU was less categorical than Advocate General Trstenjak, who opined (paras 33 and 34) that the payment of simple interest clearly complied with that principle and that that principle would be breached only if the interest rate were so low as to deprive the claim of substance.
+In support of that view she recited (para 37) the amounts of principal and interest which HMRC had paid and recorded that the latter exceeded the former by over 25%.
+But it would be wrong to overstate the extent of the CJEUs departure from the Advocate Generals approach.
+In what we see as the third part of the relevant passage in its judgment (para 30) the CJEU, after stating that it was for the referring court to decide whether the national rules for the calculation of interest would deprive the taxpayer of an adequate indemnity, recorded what HMRC had already paid and repeated the comparison which the Advocate General had made between the amount of principal and the amount of interest on that principal.
+What the CJEU said in para 30 suggests that the payment of a substantial amount of interest in a claim for repayment, which, unusually, stretches back over decades, can constitute reasonable redress.
+This is consistent with the application of the principle of effectiveness, namely that the rules do not render practically impossible or excessively difficult the exercise of rights conferred by EU law: having recognised a right to interest (para 26), the CJEU points out in para 30 that the taxpayer has already received interest amounting to more than 125% of the principal sum.
+This approach is also readily understandable in a context in which the CJEU, in the interests of legal certainty, has upheld the validity of national limitation periods of relatively short duration which restrict the ability of taxpayers to recover unduly paid tax: for example Rewe Zentralfinanz eG v Landwirtschaftskammer fr das Saarland (Case C 33/76) [1976] ECR 1989, para 5; Palmisani v Instituto Nazionale della Previdenze Sociale (INPS) (Case C 261/95) [1997] ECR I 4025, para 28; Fantask A/S v Industriministeriet (Erhvervsministeriet) (Case C 188/95) [1997] ECR I 6783, paras 48 52.
+This case law suggests that there is no general principle of EU law that there must be full reimbursement of the use value of money.
+If, as Henderson J and the Court of Appeal have held, the CJEU, in the paras leading up to para 26, had established a principle that the interest awarded should achieve a full or almost full reimbursement of loss, there is no satisfactory explanation for what the CJEU then said in para 30.
+As we have said, Henderson J recognised this difficulty and described it as a puzzling question to which he had no satisfactory answer (paras 296 and 299).
+He accepted that the CJEU sometimes makes an observation about the facts which gives a strong indication of what it thinks the answer probably should be, while leaving it to the referring court to provide the answer.
+But, as he interpreted the words an adequate indemnity as requiring an amount of interest broadly commensurate with the loss suffered by the taxpayer of the use value of the tax, he found it incredible that the CJEU would have thought that simple interest over 30 years could achieve that result.
+Differing as we do from Henderson J and the Court of Appeal in our interpretation of the CJEUs judgment, we have no difficulty in seeing para 30 as fitting into the structure of that judgment: having set out a criterion of reasonable redress which was to cover the aggregate of principal and interest, the CJEU in quoting the figures, which had persuaded the Advocate General to assert that simple interest sufficed, has given a strong indication of its view, when handling the matter back to the referring court to apply a broad judgment.
+In summary, we interpret the CJEUs judgment as (i) requiring the repayment of tax with interest, without specifying the form of that interest (ii) stating that the principle of effectiveness requires that the calculation of that interest, together with the repayment of the principal sum, should amount to reasonable redress for the taxpayers loss, and (iii) suggesting that the referring court might consider that interest which is over 125% of the amount of the principal sum might be such reasonable redress.
+Turning to the wider context of member state practice, the United Kingdom Government in its written observations to the CJEU examined the legislation in 13 other member states (Belgium, Denmark, Finland, France, Germany, Hungary, Ireland, Italy, Luxembourg, the Netherlands, Poland, Spain, and Sweden).
+In all but one (Sweden) simple interest is payable both on the recovery by taxpayers of taxes which were unduly paid and on the recovery by the tax authorities of taxes paid late.
+Thus, there was and is a widespread practice within the member states of the EU which is the same as that in the United Kingdom.
+In this context, if the CJEU were seeking to outlaw this practice, we would have expected clear words to that effect.
+They are absent.
+Thirdly, we see no inconsistency between our interpretation of the CJEUs judgment in this case and its prior and subsequent case law.
+The obligation in principle on a member state to repay charges levied in breach of EU law, which is enshrined in cases such as San Giorgio and Socit Comateb v Directeur Gnral des Douanes et Droits Indirects (Joined Cases C 192/95 to C 218/95) [1997] ECR I 165, was initially accompanied by rulings that, in the absence of EU rules governing the matter, the payment of interest on such sums was an ancillary problem to be settled in national law, whether it concerned the date from which interest was payable, the rate of interest or the method of calculation: for example Socit Roquette Frres v Commission of the European Communities (Case 26/74) [1976] ECR 677, paras 11 13; Express Dairy Foods Ltd v Intervention Board for Agricultural Produce (Case 130/79) [1980] ECR 1887, paras 16 and 17; and Ansaldo Energia SpA v Amminstrazione delle Finanze dello Stato (Joined Cases C 279/96, C 280/96 and C 281/96) [1998] ECR I 5025, paras 27, 28 and 30.
+More recently, in Metallgesellschaft (above) the CJEU recognised that there was a right in EU law to obtain interest accrued on the advance payment of tax in breach of EU law for the period between the illegal advance payment and the date on which the tax became payable under EU law.
+In that case, because the purported but illegal liability to pay advance corporation tax had later been replaced by a valid obligation to pay corporation tax, the taxpayer had no claim for the tax itself and claimed merely for interest on the premature payment of the tax.
+The CJEU reiterated its case law that it was for the national courts to settle ancillary questions such as the payment of interest (para 86) but nonetheless recognised as part of EU law a claim for interest, holding (para 87): where the breach of Community law arises, not from the payment of the tax itself but from its being levied prematurely, the award of interest represents the reimbursement of that which was improperly paid and would appear to be essential in restoring the equal treatment guaranteed by article 52 of the Treaty.
+In support of this view the CJEU referred (para 94) to Marshall (above) which we discuss further in para 65 below.
+approach, holding in para 205 that In Test Claimants in the FII Litigation (above) the CJEU confirmed this where a member state has levied charges in breach of the rules of Community law, individuals are entitled to reimbursement not only of the tax unduly levied but also of the amounts paid to that state or retained by it which relate directly to that tax.
+As the court held in paras 87 and 88 of Metallgesellschaft, that also includes losses constituted by the unavailability of sums of money as a result of a tax being levied prematurely.
+While the CJEU spoke in this passage about the reimbursement of losses constituted by the unavailability of sums of money which gave rise to an entitlement to claim interest, it made no statement as to the rate or method of calculation of that interest, by which the use value of money might be compensated.
+It is unsurprising, therefore, that the CJEU in para 26 of its judgment in the present case deduced from the case law a general principle that the repayment of tax levied in breach of EU law had also to provide for the payment of interest, without specifying further the content of that right to interest.
+The CJEU in the present case did not refer in its judgment to Marshall (above).
+But that case was cited to the court in argument and, as we have said, featured in the reasoning of the court in Metallgesellschaft.
+We have discussed the case of Marshall in para 47 above.
+In our view, the case is clearly to be distinguished from the present case because it was concerned with ascertaining the principal sum which should be paid to the claimant to remove the discriminatory treatment which she had suffered and to achieve equality of opportunity.
+The use by the CJEU in that case of the phrase adequate to describe the making good in full of the loss sustained as a result of her dismissal makes good sense in that context.
+But there are three reasons why we do not infer that the CJEU in the present case intended the phrase an adequate indemnity to have the same meaning in the context of interest.
+First, in Marshall the CJEU applied the principle of effectiveness in a contextual manner; as in the earlier case of von Colson v Land Nordrhein Westfalen (Case 14/83) [1984] ECR 1891, the court had regard to the purpose of the Equal Treatment Directive in giving content to the principle in relation to the principal sum to be paid as compensation.
+Secondly, the court in Marshall addressed the claim for interest separately (para 31), holding that full compensation included taking account of the effluxion of time which might diminish the value of the award and that therefore an award of interest in accordance with the applicable national rules was an essential component of the compensation.
+Taking into account the diminution in value of a sum of money through the passage of time is not the same as compensation in full for the use value of money.
+Thirdly, as Henderson J recognised (para 282), the CJEU may have adopted the phrase an adequate indemnity from para 32 of the written observations submitted by the European Commission in support of the sufficiency of simple interest in which it spoke of such interest providing adequate restitution or compensation.
+The Advocate General summarised the Commissions position by referring to this paragraph in her opinion (para 11).
+Marshall therefore is of no assistance.
+Turning to the subsequent case law, we encounter the CJEU formulating the law in substantially the same way as it did in this case.
+Thus, in Zuckerfabrick Jlich AG v Hauptzollamt Aachen, British Sugar plc v Rural Payments Agency and Socit Tereos v Directeur gnral des douanes et droits indirects (Joined Cases C 113/10, C 147/10 and C 234/10) EU:C:2012:591; [2012] All ER (D) 174 the CJEU in paras 65 and 66 repeated the reasoning in paras 25 and 26 in the judgment in this case and concluded (para 69) that individuals who were entitled to reimbursement of sums paid as production levies under invalid EU legislation were also entitled to interest on those sums.
+The member state was obliged to pay interest even though it could not recover the corresponding interest from the EU institution to which it had paid the invalid levies.
+But the CJEU did not rule on the method of calculating that interest.
+In Irimie (above) the CJEU ruled that a system, which limited the interest accruing on tax unduly levied to that which accrued from the day following the claim for repayment, deprived the taxpayer of adequate compensation for her loss contrary to the principle of effectiveness (paras 26 27) and was therefore in breach of EU law (para 29).
+It held (para 28): That loss depends, inter alia, on the duration of the unavailability of the sum unduly levied in breach of European Union law and thus occurs, in principle, during the period between the date of the undue payment of the tax at issue and the date of repayment thereof.
+In formulating its reasoning, the CJEU (at paras 20 23) again followed the pattern in its judgment in this case in paras 24 27.
+In summary, the CJEU confirmed that the right to repayment of unduly levied tax was accompanied by a right to interest on that tax from the date of payment until the date of repayment but it did not suggest that EU law required either the rate or the method of calculation of the interest payable to achieve full reimbursement of the use value of money during that period.
+In Wortmann KG Internationale Schuhproduktionen v Hauptzollamt Bielefeld (Case C 365/15) EU:C:2017:19; [2017] All ER (D) 55 the CJEU was concerned with a claim for the repayment of import duties after EU legislation imposing an antidumping duty was annulled.
+The court addressed the question whether the relevant EU legislation establishing the Community Customs Code must be interpreted as meaning that national law, having regard to the principle of effectiveness, must provide for the payment of interest on the reimbursed import duties from the date of payment until their repayment, even in cases where no claim for reimbursement had been made in the national court.
+Advocate General Campos Snchez Bordona, in proposing that the CJEU give a positive answer to the question, relied on the courts ruling in Irimie which, he suggested (paras 69 70), was based on reasoning that the taxpayer was not to be deprived of compensation commensurate with the loss suffered.
+But the CJEU in its judgment did not adopt any such principle but merely repeated its case law that parties who had paid taxes levied by a member state pursuant to an EU regulation which had been declared invalid or annulled by the CJEU had the right in principle to obtain not only the repayment of the amounts levied but also interest on those amounts (paras 37 38).
+Again, no ruling or comment was made as to the scope of a member states discretion in fixing the rate or the method of calculation of interest.
+We are satisfied therefore that there is nothing in the prior or subsequent case law of the CJEU which militates against our interpretation of its judgment in this case.
+Consistently with the views expressed by the European Commission and the member state governments which submitted arguments to the court in this case, the CJEU (para 34) has not required the payment of more than simple interest if the national legal order treats that as reasonable redress for the unavailability of the money and no issue of equivalence arises.
+The CJEUs reliance on the principles of effectiveness and equivalence is wholly consistent with its jurisprudence that the questions of the rate and method of calculation of interest are matters for the internal legal order of a member state.
+Summary on issue 2
+In our view, there is no requirement in the CJEUs jurisprudence that the value which the member state, by the award of interest, places on the use of money should make good in full the loss which a taxpayer has suffered by being kept out of his money.
+We are satisfied that Henderson J and the Court of Appeal erred in reading too much into the phrase an adequate indemnity and failed to give sufficient weight to its context in the relevant passage of the CJEUs judgment, including para 30 which they could not satisfactorily explain.
+We are satisfied that the judgment of the Grand Chamber of the CJEU in this case, which addresses directly the issue which will determine this case, is clear when read as a whole.
+The Grand Chamber has specifically addressed the issue of whether simple or compound interest is required, in a reference made in these very proceedings.
+It has given such guidance as it considered appropriate.
+It has ruled that it is for national law to determine, in compliance with the principles of effectiveness and equivalence, whether the principal sum must bear simple interest, compound interest or another type of interest.
+Here, national law provides for simple interest.
+No issue of equivalence arises.
+So far as effectiveness is concerned, the Grand Chamber has held that it is for the national court to determine whether the national rules would deprive the taxpayer of an adequate indemnity for the loss caused by the undue payment of VAT.
+In that regard, it has said that it should be noted that the interest already paid exceeds the principal amount due by more than 23%.
+It is now the duty of this court to apply that guidance.
+There is no basis for a further reference to the CJEU.
+Consistently with a widespread practice among member states of the EU, the United Kingdom has treated the award of simple interest as an appropriate remedy for being held out of money over time whether the claimant is HMRC, when a taxpayer fails to pay his tax in a timely manner, or the claimant is the taxpayer, when tax has been unduly levied.
+Littlewoods have already recovered overpaid tax, and interest on that amount, going back several decades.
+The size of that recovery reflects a combination of circumstances which could not have occurred in most of the other EU member states: the retroactive nature of a major development of the common law by the courts, so as to allow for the first time the recovery of money paid under a mistake in law, and the inability of the legislature to respond to that development, under EU law, by retroactively altering the law of limitation so as to protect public finances.
+The resultant payment of interest cannot realistically be regarded as having deprived Littlewoods of an adequate indemnity, in the sense in which that expression should be interpreted.
+Conclusion
+We would dismiss Littlewoods cross appeal on issue 1 and allow HMRCs appeal on issue 2.
+We would invite the parties, in the absence of agreement, to lodge written submissions on the appropriate form of order to be made in this case within 21 days of the handing down of this judgment.
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+It has been hard wired into the mind of many family lawyers in England and Wales that, were a parent to remove a child from a state in which they were habitually resident to another state with the settled intention that they would cease to reside in that first state and make their home in that second state, the child would be likely to lose habitual residence in the first state immediately upon the removal and, until later acquiring habitual residence in the second state, would be likely not to be habitually resident anywhere.
+The absence of habitual residence anywhere places a child in a legal limbo.
+The main question raised by this appeal, which arguably the lower courts were not free to answer, is whether the expectation of family lawyers about the point at which habitual residence is lost requires adjustment in the light of this courts recent adoption of the European concept of habitual residence.
+The courts answer to this question should enable it to determine whether the lower courts were correct to conclude that, on the relevant date, the child at the centre of this appeal was in the limbo to which I have referred.
+The child is B, a girl, who was born in April 2008 and so is now aged seven.
+The women who are the two central parties to this appeal were living in England in a same sex relationship from 2004 to 2011.
+Other than biologically, B is the product of their relationship.
+The respondent is the biological mother of B and her father is an unknown sperm donor of Asian ethnicity.
+The appellant has strong claims also to be described as a mother.
+Nevertheless, in order to avoid confusion, it is better to refer to the central parties as the appellant and the respondent respectively.
+The appellant, who continues to live in England, is a British national, aged 35, of Indian ethnicity.
+The respondent is a British national, aged 45, of Pakistani ethnicity.
+B, likewise, is a British national.
+On 3 February 2014 the respondent took B to live in Pakistan, where they have remained ever since.
+On 13 February 2014, aware that the respondent had removed B from her home but unaware that she had taken her abroad, the appellant issued an application under the Children Act 1989 (the 1989 Act) for leave to apply for what were then still described as orders for shared residence of B or for contact with her.
+On 6 June 2014, having learnt that the respondent had taken her to Pakistan, the appellant also applied for orders that B should be made a ward of court and be returned to England.
+On 31 July 2014 Hogg J dismissed both of the appellants applications: [2014] EWHC 3017 (Fam).
+And on 6 August 2015 the Court of Appeal (Sir James Munby P, Black and Underhill LJJ), by a judgment of the court delivered by Black LJ, dismissed her appeal: [2015] EWCA Civ 886.
+In 2000, prior to her relationship with the appellant, the respondent had begun to investigate the possibility of her conceiving a child by artificial means and in 2001 she had made unsuccessful attempts to do so.
+In 2004 their relationship began and they set up home together; but they never entered into a civil partnership.
+In 2005 and 2006, as a couple, they together explored that same possibility.
+At their joint request, a licensed hospital administered two cycles of intrauterine insemination (IUI) to the respondent but the treatment was unsuccessful.
+Then they made a joint application to their local authority for assessment as potential adopters.
+Six months later, however, at the instigation of the appellant, who did not feel ready to be a parent, they withdrew their candidacy.
+Ultimately, in April 2007, they applied to another licensed hospital for the respondent to have further IUI treatment under the National Health Service.
+I see no reason, wrote the counsellor, why this couple should not be treated.
+On this occasion the treatment was successful and in April 2008 B was born.
+Shortly prior to Bs birth the appellant and the respondent had bought a house in their joint names.
+They lived there together with B until December 2011, when in acrimonious circumstances their relationship finally broke down and the appellant left.
+Upon Bs birth the respondent gave up work for a year.
+The appellant took two weeks of paternity leave and a further two weeks of holiday, whereupon she resumed full time employment.
+Most of Bs care was undertaken by the respondent but, when she got home, the appellant helped to care for her, for example to give her a bath and put her to bed; and at weekends, as co parents, they took B out, in particular to visit members of their families.
+Living within easy reach of them were the appellants parents, the respondents parents and her two sisters, together with various young cousins of B. She became close to these relations, who all remain resident in England today.
+When in 2009 the respondent resumed work, the appellants parents looked after B for two days each week but, when she began to attend a nursery, their care of her was reduced to one day each week.
+When she began to talk, B began to call the respondent mama and the appellant mimi.
+On behalf of B, the respondent wrote Mothers Day cards to the appellant; on one of them she wrote I cant believe how lucky I am to have you as my Mama.
+Following her departure from the family home, the appellant continued to pay half the mortgage instalments referable to it and to make other payments which she describes as for Bs maintenance and which the respondent describes as her continuing contribution to utility bills.
+The respondent accuses the appellant of withdrawing from many aspects of parenting, for example in relation to Bs schooling; but on any view the appellant pressed for contact with B and on any view the respondent was to some extent resistant to it.
+Over the following two years the respondent progressively reduced the level of the appellants contact with B from six hours every week in the first few months, to three hours every fortnight in the following year and then to only two hours every three weeks in the year prior to the move to Pakistan.
+The appellant was not content with the reduction in her contact with B, nor with the ostensible difficulties placed by the respondent in the way of her seeing B on a number of the pre arranged days.
+Bad tempered emails passed between them.
+By November 2012 the appellant was inviting the respondent, albeit unsuccessfully, to join her at family mediation.
+Then, in October 2013, the appellant wrote to the respondent a letter before action.
+She expressed concern about the effect on Bs emotional wellbeing of the minimal contact which the respondent had allowed to take place between them and she invited her to consent to a shared residence order, pursuant to which B would stay with the appellant on three nights each fortnight and for further periods during school holidays.
+The respondent does not appear to have replied to the letter.
+Meanwhile the respondent had begun privately to consider whether to take B to live in Pakistan, where, according to her, certain unidentified members of her wider family remain.
+In June 2013 she had been made redundant and life had become particularly difficult for her.
+In November 2013 she went alone to Islamabad and there she discussed with a friend the possibility of entry into a business partnership with him and looked at a possible school for B.
+In December 2013, following her return to England, the respondent secretly decided to move there with B as soon as possible.
+Also in December 2013 the respondent took B on holiday to Morocco.
+On the first occasion of contact following their return B handed a Moroccan card to the appellant.
+On the card B had written To mimi I missed you so much love [B] and she had drawn hearts and kisses.
+At around that time the respondent at last agreed to attend a mediation session with the appellant.
+It took place on 15 January 2014.
+The respondent made no mention of her imminent departure with B to Pakistan and it is hard to avoid the conclusion that the session was a charade.
+It was agreed that the next session would take place on 5 February 2014.
+The last occasion of direct contact between the appellant and B took place on 26 January 2014.
+According to the appellant, B told her that she was moving and that she was scared that the appellant would not be able to find her.
+The next occasion of contact was fixed to take place three weeks later, namely on 16 February 2014.
+Late in January, by email, the appellant asked the respondent to agree to change the date.
+There was no reply.
+On 7 February the appellant sent a further email.
+It bounced back.
+The appellant discovered that the respondents facebook and twitter pages had been closed.
+Then, on 8 February, the appellant received a letter from the respondent.
+It had been posted by someone in England on 6 February.
+In it the respondent gave no indication of the whereabouts of herself and B. She wrote Ive enclosed the house key as I have now moved our communication has been so strained and stressful I will be in touch in a few weeks, once we settle, to establish what you have decided to do about the house.
+The respondents removal of B to Pakistan on 3 February 2014 was lawful.
+The absence of the appellants consent did not vitiate it.
+The appellant has never been Bs legal parent.
+Had the insemination which led to Bs conception occurred after 6 April 2009, and had the respondent so agreed in writing, the appellant would have been treated in law as Bs parent: sections 43 and 44 of the Human Fertilisation and Embryology Act 2008.
+Had she thereupon been registered as a parent, the appellant would also have acquired parental responsibility for B: section 4ZA(1)(a) of the 1989 Act.
+Alternatively, if the appellant had secured a shared residence order referable to B prior to 3 February 2014, she would have acquired parental responsibility for her under the former version of section 12(2) of the 1989 Act.
+In the event, however, she never had parental responsibility for B.
+Later the respondent was to give the following evidence, which Hogg J accepted, about the circumstances of herself and B in Pakistan in the weeks following their arrival on 4 February 2014: (a) (b) she arrived in Islamabad on a visa which entitled her to remain with B in Pakistan for about three months; she stayed with B in the home of her potential business partner for about the first three weeks; (c) on 10 February she began working in partnership with him; (d) on 18 February she registered B at an English speaking school (being other than the one which she had previously considered), at which on the following day B began to attend; (e) on 19 February she entered into an agreement to rent a two bedroom flat for one year with effect from 1 March; (f) on (presumably) 1 March she moved with B into the flat; and (g) on 18 April she was issued with a National Identity Card which entitled her to reside with B in Pakistan indefinitely.
+On 24 July 2014, five days before the beginning of the hearing before Hogg J, the appellant spoke to B by telephone.
+Since then there have been five further occasions of contact by telephone.
+No other contact has taken place between them since the move to Pakistan.
+PROCEEDINGS
+When on 13 February 2014 the appellant issued her application under the 1989 Act, she remained unaware of Bs whereabouts so she also issued an application under section 33 of the Family Law Act 1986 for orders that specified public authorities should disclose to the court all their information relating to Bs whereabouts.
+An order was made against the Child Benefit Office but it yielded no relevant information.
+In April 2014, still unaware of the whereabouts of the respondent and B, the appellant secured an order for substituted service of her applications upon the respondent, namely by post to the address of her parents.
+The respondent says that in his mind her father had somehow been able to avoid directly confronting her sexuality, her intimate relationship with the appellant and the circumstances of Bs conception; and that, when he opened the envelope, he was deeply shocked and angry about what he perceived to be the respondents dishonour of the family.
+There may well be grounds for criticising the appellant for having invited the court to order that the substituted service should be at the parents address as opposed, for example, at the address of one of the respondents sisters.
+At all events the service led to the respondents instruction of English solicitors who, on 9 May 2014, informed the appellants solicitors that the respondent and B had gone to Pakistan.
+Later the respondent divulged that she and B were in Islamabad but, for reasons unexplained to the court, she has never disclosed their precise address there.
+The appellants belated discovery that B was abroad led her, on 6 June 2014, to issue a further application, namely for orders to be made by the High Court in the exercise of its inherent jurisdiction over B, as a British subject, that she be made a ward of court and be at once brought back to England.
+On 9 June 2014, apprised of the fact that the respondent disputed the courts jurisdiction to make any of the orders sought by the appellant, Moylan J directed that the issue of jurisdiction be determined at a hearing beginning on 29 July 2014 and he ordered that the respondent should attend it in person.
+By a recital to his order, Moylan J also invited the respondent to reflect upon the practical availability of any forum, other than in England and Wales, in which she and the appellant might safely and realistically resolve their disputes.
+In due course, having presumably reflected upon it, the respondent averred that the correct jurisdiction in which to raise any issues in relation to B was that of Pakistan.
+Four days before the hearing fixed to begin on 29 July 2014, Peter Jackson J heard an application by the respondent to vary the order that she should attend it in person.
+She asserted that her father had been so outraged by what he had learnt from the court documents as to have threatened to break her legs and that, were she to come to England, she would be at risk of physical harm, perhaps even of death, at his hands or at those of the local community.
+Instead the respondent offered to give evidence at the substantive hearing by video link.
+On the undertaking of the appellant not to inform the respondents family that the hearing was about to take place, the judge refused the respondents application and made a further order for her attendance in person.
+Nevertheless the respondent refused to comply with the orders for her attendance before Hogg J in person.
+She did not even give evidence to her by video link.
+She gave evidence only by telephone.
+On 31 July 2014, following receipt of evidence relevant to jurisdiction from the appellant in the witness box as well as from the respondent by telephone, Hogg J gave judgment.
+It was, as she noted, common ground that prior to 3 February 2014 the respondent and B had been habitually resident in England.
+Notwithstanding her inability to have observed the respondent during cross examination about her motives, Hogg J found that, when departing for Pakistan on that date, the respondent had genuinely intended to make a new life for herself and for B there and that her motivation had not been to evade the appellants increasing demands to be allowed to play a fuller role in Bs life.
+So she held that the respondent had thereupon lost her own habitual residence in England.
+She accepted that the appellant had been a significant person in Bs life, particularly prior to the breakdown of the relationship between the two women; that the appellant still had much to offer B; and that B had said that she would miss the appellant and had wished to remain in touch with her.
+But, asked Hogg J, was Bs wish to remain in touch with the appellant enough to sustain a continuation of her habitual residence in England? Her answer was no.
+Accordingly she held that B had also lost her English habitual residence on 3 February 2014 and thus that the court had no jurisdiction to determine the application issued by the appellant on 13 February 2014 pursuant to the 1989 Act.
+It was nevertheless probable, observed the judge, that neither the respondent nor B had acquired habitual residence in Pakistan by that date.
+Then Hogg J addressed the appellants application for the exercise of her inherent jurisdiction over B as a British subject.
+She noted the appellants central contention that, in the light of societys attitude in Pakistan towards homosexual acts, she would not be able even to present her case, as a same sex parent, to the courts there; and the appellants wider contentions that, as a lesbian, the respondent was putting herself and B at risk by living in Pakistan and that, while B needed in due course to develop a fuller understanding of the circumstances of her conception and early home life, she would, were the respondent to have told her the truth about them, put herself at risk even by speaking about them in Pakistan.
+The judge, however, accepted that the respondent was well aware of the difficulties which would attend her entry into a same sex relationship in Pakistan.
+The judge held that the jurisdiction over a British subject who was neither habitually resident nor present in England and Wales should be exercised only if the circumstances of the case were dire and exceptional and that those of the present case did not so qualify.
+This case before me, concluded Hogg J, is at heart one of contact in the old fashioned terminology and about making arrangements for seeing a significant person in [Bs] life.
+Then she observed that, had the respondent made an application for permission to remove B to Pakistan, it would have stood a very good chance of success and that there would have been plans, if not orders, for the appellant to have indirect contact.
+With respect to Hogg J, others might attribute a somewhat lower chance of success to the respondents hypothetical application; and counsel have been unable satisfactorily to explain the judges apparent suggestion that the extent of Bs contact with the appellant for which the court would have provided would have been no more than indirect.
+In the appellants appeal to the Court of Appeal against the orders of Hogg J the Reunite International Child Abduction Centre (Reunite) was permitted to intervene.
+By its judgment, the court concluded that Hogg J had been entitled to hold that on 3 February 2014 B had lost her English habitual residence.
+It also concluded that, although the attenuation, or even the ultimate loss, of her relationship with the appellant would be a real detriment to B, the circumstances were not so exceptionally grave as to justify exercise of the inherent jurisdiction by reference to her nationality.
+The Court of Appeal correctly observed that there was no direct evidence to substantiate the appellants asserted inability to present her case to the courts of Pakistan.
+But it surveyed a mass of general material about the attitude of society in Pakistan to same sex relationships and concluded from it that, although the issue of sexual relations between women was unexplored territory in law, there was in Pakistan pervasive societal and state discrimination, social stigma, harassment and violence against both gay men and lesbian women, together with a lack of effective protection by the state against the activities of non state actors.
+So the Court of Appeal proceeded on the basis not challenged by the respondent in the course of this further appeal that courts in Pakistan would be unlikely to recognise that the appellant had any relationship with B which would entitle her to relief and that therefore she would have no realistic opportunity to advance her claim there.
+CONSEQUENCE
+The consequence of the conclusions reached in the lower courts, in both of them by judges of great experience in the field of family law, is that applications intended to secure for B a continuing relationship with the woman who, with the respondents consent, has acted as one of her parents and who, even for the two years following the separation, managed to maintain a significant, loving presence in her life have been dismissed without any appraisal of Bs welfare; without any knowledge of her current situation; without any collection of her wishes and feelings; and in circumstances in which no such applications can be entertained in any other court.
+Is it correct that, by the clandestine removal of her to Pakistan, the respondent has placed Bs interests beyond all judicial oversight? The Court of Appeals affirmative answer is arresting.
+It demands this courts close scrutiny.
+HABITUAL RESIDENCE
+(a) Principle
+A childs habitual residence in a state is the internationally recognised threshold to the vesting in the courts of that state of jurisdiction to determine issues in relation to him (or her).
+Article 8 of Council Regulation (EC) No 2201/2003 (Regulation B2R) provides that the courts of an EU state shall have jurisdiction in matters of parental responsibility over a child habitually resident there at the time when the court is seised.
+By way of exception, article 12 confers jurisdiction on a state which has other links with the child but only where the parties have accepted its jurisdiction.
+Article 13 provides that, where a childs habitual residence cannot be established (which means where the child is not habitually resident in any EU state) and where article 12 does not apply, jurisdiction vests in the courts of the state in which the child is present.
+Article 14, entitled Residual jurisdiction provides that, where no court of a member state has jurisdiction under the preceding articles, jurisdiction shall be determined by the laws of each state.
+A childs habitual residence is also the thread which unites the provisions of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the 1980 Convention).
+This Convention applies to a child habitually resident in a contracting state immediately before his wrongful removal or retention: article 4.
+It is the law of that state which dictates whether his removal or retention was wrongful: article 3(a).
+It is that state to which, subject to exceptions, other contracting states must order the child to be returned: article 12.
+Under the Hague Convention on Jurisdiction etc 1996 it is, again, the courts of the contracting state of the childs habitual residence which, as against other contracting states, has jurisdiction to make orders for his protection: article 5(1).
+Regulation B2R extends beyond the identification of jurisdiction as between EU states themselves.
+It binds each EU state irrespective of whether the other state with potential jurisdiction is an EU state.
+Thus the Family Law Act 1986 (the 1986 Act) now provides, by section 2(1)(a), that an order under section 8 of the 1989 Act may be made only if the court has jurisdiction under Regulation B2R or if other conditions, irrelevant for present purposes, are satisfied.
+By her application issued on 13 February 2014 the appellant applied for leave to apply for orders under section 8 of the 1989 Act and the result is that the court has jurisdiction to determine her application only if B was habitually resident in England and Wales on the date of its issue.
+Two consequences flow from the modern international primacy of the concept of a childs habitual residence.
+The first is that, as Reunite submits to this court and as the respondent broadly accepts, it is not in the interests of children routinely to be left without a habitual residence.
+In that event the machinery of international instruments designed to achieve an orderly resolution of issues relating to them does not operate as primarily intended.
+Indeed, if they are unilaterally removed from a state in which they were not habitually resident, those aggrieved by their removal can have no recourse to the 1980 Convention.
+In In re F (A Minor) (Child Abduction) [1992] 1 FLR 548, 555, Butler Sloss LJ accepted that for that reason it was important that, where possible, a child should have an habitual residence.
+Indeed, in his article entitled The Concept of Habitual Residence in the Juridical Review 1997, p 137, Dr Clive, the great Scottish family law jurist, wrote at p 143 that with the increasing importance of habitual residence as a connecting factor, it is not sensible to have a situation in which people are routinely without a habitual residence.
+In the absence of the habitual residence of children anywhere, Regulation B2R provides a fall back jurisdiction based on their presence.
+But, in the context of adult disputes about them, the presence of children in a particular state on a particular day is an unsatisfactory foundation of jurisdiction because, by moving them from one state to another, one of the adults can so easily invoke a favourable jurisdiction or pre empt invocation of an unfavourable one.
+The second consequence is that the interpretation in the courts of England and Wales of the concept of habitual residence should be consonant with its international interpretation: see the judgment of the Court of Justice of the European Union (the CJEU) in Proceedings brought by A [2010] Fam 42, para 34.
+Its traditional interpretation in England and Wales has been substantially influenced by the stance adopted by one or both of the parents, often at the expense of focus on the childs own situation.
+By way of example, our courts had accepted a proposition that one parent with parental responsibility could not achieve a change in the childs habitual residence without the consent of the other parent with parental responsibility: Re M (Abduction: Habitual Residence) [1996] 1 FLR 887, 892 E H and 896 B.
+This court has now held that proposition to be wrong: In re R (Children) [2015] UKSC 35; [2016] AC 760.
+By way of another example, our old law largely proceeded by reference to a proposition that a childs habitual residence would necessarily follow the habitual residence of the parent with whom he lived: see the discussion of it in In re LC (Children) [2014] UKSC 1; [2014] AC 1038, para 33.
+But it was held in the LC case, at paras 34 to 37, that the international interpretation of habitual residence required that proposition to be relaxed.
+The present case requires the court to turn its attention to a third aspect of the concept of a childs habitual residence, namely the circumstances in which he loses it, and to ask itself whether the longstanding domestic analysis of those circumstances, yet again heavily dependent on parental intention, is consonant with the modern international concept.
+The domestic analysis to which I have referred is to be found in the decision of the House of Lords in In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562.
+The facts have some similarities with those of the present case although the latter has features which may more strongly militate against any immediate loss of the childs habitual residence upon removal.
+On 21 March 1990 the mother removed the child, aged two, from Australia, where he had been habitually resident, to England with the intention of permanently residing here.
+She did so without the knowledge of the father who also resided in Australia but who, not having been married to the mother, had at that time no rights of custody in relation to the child.
+So the mothers removal of him was not wrongful within the meaning of the 1980 Convention.
+On 12 April 1990, however, an Australian judge conferred rights of custody on the father.
+So was the mothers retention of the child in England after that date wrongful within the meaning of the 1980 Convention? It was wrongful only if the child had continued to be habitually resident in Australia on that date.
+The appellate committee held that, while he had not by then acquired habitual residence in England, he had lost his habitual residence in Australia upon his removal three weeks earlier.
+It is well known that, in giving the only substantive speech in the J case, Lord Brandon of Oakbrook made, at pp 578 579, four preliminary points.
+The first was that the expression habitual residence should be given its natural meaning.
+The second was that an issue about a persons habitual residence in a particular country was one of fact.
+The fourth, which may remain correct notwithstanding the decision in the LC case, was that the habitual residence of a child aged only two who was in the sole lawful custody of his mother would be the same as hers.
+It is the validity of Lord Brandons third point, for which he cited no authority, that is central to the present appeal.
+Hogg J quoted it in full.
+Lord Brandon said: The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long term residence in country B instead.
+Such a person cannot, however, become habitually resident in country B in a single day.
+An appreciable period of time and a settled intention will be necessary to enable him or her to become so.
+During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B.
+In the light of his third and fourth points Lord Brandon concluded as follows: The mother had left Western Australia with a settled intention that neither she nor J should continue to be habitually resident there.
+It follows that immediately before 22 March 1990, when the retention of J in England by the mother began, both she and J had ceased to be habitually resident in Western Australia. (emphasis supplied)
+The analysis by the CJEU of the concept of a childs habitual residence is located in its judgments in Proceedings brought by A, cited in para 31 above, and in Mercredi v Chaffe [2012] Fam 22.
+In Proceedings brought by A the issue for determination in Finland was whether children taken into care in November 2005 had then been habitually resident there.
+They had lived with their mother in Sweden for four years until the summer of 2005, when they had returned to Finland, where they had lived on campsites and not been sent to school.
+The courts ruling, at p 69, was as follows: 2.
+The concept of habitual residence under article 8(1) of [Regulation B2R] must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment.
+To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a member state and the familys move to that state, the childs nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state must be taken into consideration.
+The court had also suggested, at para 40, that the intention of the parents to settle permanently with the child in another member state, manifested by certain tangible steps such as the purchase or lease of a residence there, might indicate what, perhaps significantly, the court chose to describe as a transfer of habitual residence.
+In the Mercredi case the issue for determination in England and Wales was whether a baby aged two months, lawfully removed by the French mother from the UK to La Runion, remained habitually resident here five days later when the English court became seised of the British fathers application.
+The CJEU carefully followed its ruling in Proceedings brought by A but, by reference to the different facts, chose also to stress, at paras 53 and 56, that the analysis of the social and family environment of a pre school child would differ from that of a school age child and would include consideration of the geographic and family origins of the parent who had effected the move and of the family and social connections of that parent and the child with the state to which they had moved.
+In A v A (Children: Habitual Residence) [2013] UKSC 60; [2014] AC 1, this court held that the criterion articulated in the two European authorities (some degree of integration by the child in a social and family environment), together with the non exhaustive identification of considerations there held to be relevant to it, governed the concept of habitual residence in the law of England and Wales: para 54(iii) and (v) of Lady Hales judgment, with which all the members of the court (including Lord Hughes at para 81) agreed.
+Lady Hale said at (v) that the European approach was preferable to the earlier English approach because it was focussed on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors.
+It is worthwhile to note that the new criterion requires not the childs full integration in the environment of the new state but only a degree of it.
+It is clear that in certain circumstances the requisite degree of integration can occur quickly.
+For example article 9 of Regulation B2R, the detail of which is irrelevant, expressly envisages a childs acquisition of a fresh habitual residence within three months of his move.
+In the J case, cited above, Lord Brandon suggested that the passage of an appreciable period of the time was required before a fresh habitual residence could be acquired.
+In Marinos v Marinos [2007] EWHC 2047 (Fam); [2007] 2 FLR 1018, para 31, Munby J doubted whether Lord Brandons suggestion was consonant with the modern European law; and it must now be regarded as too absolute.
+In A v A, cited above, at para 44, Lady Hale declined to accept that it was impossible to become habitually resident in a single day.
+But do the two European authorities assist in identifying the object of central relevance to this appeal, namely the point at which habitual residence is lost?
+Yes, in two ways.
+The first is indirect.
+Recital 12 to Regulation B2R states: The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity.
+By proximity, the court clearly meant the practical connection between the child and the country concerned: Lord Hughes in A v A, cited above, at para 80(ii).
+In its analysis of the concept of habitual residence the CJEU, both in Proceedings brought by A at para 35 and in the Mercredi case at paras 46 and 47, stressed the significance of recital 12.
+Of course it does not follow that the court can construe a childs habitual residence by reference to the result which best serves his interests.
+The effect of the recital is more subtle and more limited yet nevertheless significant: where interpretation of the concept of habitual residence can reasonably follow each of two paths, the courts should follow the path perceived better to serve the interests of children.
+Or, to be more specific to the facts of the present case: if interpretation of the concept of habitual residence can reasonably yield both a conclusion that a child has an habitual residence and, alternatively, a conclusion that he lacks any habitual residence, the court should adopt the former.
+The second is arrestingly direct.
+In her Opinion in Proceedings brought by A Advocate General Kokott said: 45.
+It is also conceivable in exceptional cases that during a transitional stage there will no longer be habitual residence in the former state while the status in the new state has not yet crystallised into habitual residence.
+Precisely for such a case, article 13 of [Regulation B2R] confers a residual jurisdiction on the courts of the member state in which the child is present.
+In its judgment in the same case the court said: 43.
+However, it is conceivable that at the end of [the integration] assessment it is impossible to establish the member state in which the child has his habitual residence.
+In such an exceptional case, and if article 12 . is not applicable, the national courts of the member state in which the child is present acquire jurisdiction . pursuant to article 13(1) .
+The courts reference to a situation in which it is impossible to establish the childs habitual residence might at first sight seem ambiguous.
+Is it referring to a situation in which the child has an habitual residence somewhere but the evidence does not enable the court to identify the state in which he has it? The answer is clearly no.
+The court is referring to a situation in which a child has no habitual residence.
+The court is expressly indorsing para 45 of the Advocate Generals Opinion (note its repetition of her words conceivable and exceptional) but is recasting her point within the slightly ambiguous language of article 13 of B2R, namely where a childs habitual residence cannot be established.
+In A v A, cited above, Baroness Hale, at para 54(viii), referred to para 45 of the Advocate Generals Opinion and to para 43 of the courts judgment in Proceedings brought by A and observed that it was possible for a child to have no habitual residence.
+Lord Hughes, at para 80(ix), indorsed the European courts conclusion by saying that the circumstances in which a child had no habitual residence would be exceptional.
+I conclude that the modern concept of a childs habitual residence operates in such a way as to make it highly unlikely, albeit conceivable, that a child will be in the limbo in which the courts below have placed B.
+The concept operates in the expectation that, when a child gains a new habitual residence, he loses his old one.
+Simple analogies are best: consider a see saw.
+As, probably quite quickly, he puts down those first roots which represent the requisite degree of integration in the environment of the new state, up will probably come the childs roots in that of the old state to the point at which he achieves the requisite de integration (or, better, disengagement) from it.
+One of the well judged submissions of Mr Tyler QC on behalf of the respondent is that, were it minded to remove any gloss from the domestic concept of habitual residence (such as, I interpolate, Lord Brandons third preliminary point in the J case), the court should strive not to introduce others.
+A gloss is a purported sub rule which distorts application of the rule.
+The identification of a childs habitual residence is overarchingly a question of fact.
+In making the following three suggestions about the point at which habitual residence might be lost and gained, I offer not sub rules but expectations which the fact finder may well find to be unfulfilled in the case before him: the deeper the childs integration in the old state, probably the less fast (a) his achievement of the requisite degree of integration in the new state; (b) the greater the amount of adult pre planning of the move, including pre arrangements for the childs day to day life in the new state, probably the faster his achievement of that requisite degree; and (c) were all the central members of the childs life in the old state to have moved with him, probably the faster his achievement of it and, conversely, were any of them to have remained behind and thus to represent for him a continuing link with the old state, probably the less fast his achievement of it.
+Lord Brandons third preliminary point in the J case, set out in para 34 above, should no longer be regarded as correct; and Hogg J fell into error in being guided by it.
+As exemplified by the terms in which Lord Brandon applied it to the facts of that case, also set out in para 34, his analysis of a childs habitual residence afforded to parental intention a dispositive effect inconsistent with the child focussed European concept now adopted in England and Wales; and the result of his analysis was to consign a large number of children to the limbo of lacking any habitual residence in circumstances in which the modern law expects such a result to be exceptional, albeit conceivable.
+It is nevertheless fruitless to inquire whether the conclusion of the appellate committee about the childs loss of habitual residence in Australia within three weeks of his move would remain valid today.
+(b) Application
+It follows that, in asking whether Bs wish to remain in touch with the appellant was enough to sustain a continuation of her habitual residence in England on 13 February 2014, Hogg J should now be seen to have asked herself far too narrow a question.
+The question is whether B had by then achieved the requisite degree of disengagement from her English environment; and highly relevant to the answer will be whether she had by then achieved the requisite degree of integration in the environment of Pakistan.
+In my opinion each of the following factors might contribute to a conclusion that B had by that date achieved the requisite degree of disengagement from her English environment: (a) B went to Pakistan with the respondent, who was her biological mother, her primary carer and the person who alone had parental responsibility for her; (b) Bs removal to Pakistan was lawful; (c) B knew that she was going to live in Pakistan; (d) part of Bs ethnic heritage was in Pakistan and certain members of her wider family, albeit unidentified, apparently remain living there; (e) the respondent took B to Pakistan in the genuine belief that they would have a better life there and with the intention that they would settle there; and (f) two months earlier the respondent had conducted a reconnoitre of possible arrangements for their future life in Islamabad.
+In my opinion each of the following factors might contribute to a conclusion that B had not by that date achieved the requisite degree of disengagement from her English environment: she had never previously set foot in Pakistan; (a) B had lived in England throughout the five years of her life; (b) (c) her language was English and she barely spoke Urdu; (d) she was a British subject; the appellant, who was a central figure in Bs life, indeed probably the (e) second most important figure, had been left behind in England; (f) Bs removal was effected without the appellants knowledge, still less approval; (g) B was aware that her removal was to be kept secret from the appellant; (h) B retained significant emotional links with the appellant and feared that she would miss her following the move to Pakistan; (i) other important adult figures in Bs life, in particular both sets of grandparents and two aunts, together with various young cousins, had also been left behind in England; (j) the home in which B had lived throughout her life had not been sold and remained available for her immediate re occupation with the respondent; (k) by 13 February 2014 B had been present in Pakistan for only nine days; (l) at that time she and the respondent had the right to remain there for only about three months; (m) they were then staying temporarily with a friend of the respondent; (n) no independent accommodation had by then been secured by the respondent; and (o) B was not then even attending school in Pakistan nor even registered with a school there.
+(c) Conclusion
+I conclude that, taken cumulatively, the factors set out in para 50 are stronger than those set out in para 49 and compel a conclusion that on 13 February 2014 B retained habitual residence in England.
+Accordingly the appellants application issued on that date under the 1989 Act can and should proceed to substantive determination.
+The judge may wish to consider whether to make B a party to the application, acting by a childrens guardian, and, if so, whether to invite the guardian to instruct an independent social worker to interview B in Pakistan and to explore the circumstances of her life there.
+Were the courts eventual conclusion to be that it was in Bs interests to return to England, either occasionally, in order to spend time with the appellant here, or even permanently, in order to reside here again whether mainly with the respondent or otherwise, its order could include consequential provision under section 11(7)(d) of the 1989 Act for the respondent to return her, or cause her to be returned, to England for such purposes.
+NATIONALITY
+There is accordingly no need to consider whether, on the footing that she had no jurisdiction to determine the appellants application under the 1989 Act, Hogg J was entitled to decline to exercise her inherent jurisdiction to make B, as a British subject, a ward of court and to order (or even to consider whether to order) the respondent to return her, at any rate on a temporary basis, to England.
+In A v A, cited above, this court held that the prohibition comprised in sections 1(1)(d), 2(3) and 3(1) of the 1986 Act against making an order in wardship proceedings for the care of, or contact with, a British child neither habitually resident nor present in England and Wales did not preclude a bare order for his return to England: para 28 (Lady Hale, with whom the other members of the court agreed).
+This court has received extensive submissions from both of the central parties and from each of the three interveners about the proper exercise of the courts power or indeed the discharge of its alleged duty to exercise its inherent jurisdiction where no other jurisdiction exists in which the welfare of a British child can be addressed.
+With apologies to the solicitors and counsel who, all unremunerated, have laboured to craft them, I decline to lengthen this judgment by addressing almost all of these submissions.
+I do, however, agree with Lady Hale and Lord Toulson when, in para 60 below, they reject the suggestion that the nationality based jurisdiction falls for exercise only in cases at the extreme end of the spectrum.
+I consider that, by asking, analogously, whether the circumstances were sufficiently dire and exceptional to justify exercise of the jurisdiction, Hogg J may have distracted herself from addressing the three main reasons for the courts usual inhibition about exercising it.
+In para 59 below Lady Hale and Lord Toulson identify those reasons and I agree that arguably none of them carries much force in the present case.
+To my mind the most problematic question arises out of the likelihood that, once B was present again in England pursuant to an order for her return, the appellant would have issued an application for orders relating to care of her or contact with her.
+The question would be whether in such circumstances an order for her return would improperly have subverted Parliaments intention in enacting the prohibitions comprised in sections 1(1)(d), 2(3) and 3(1) of the 1986 Act.
+Or, in such circumstances, should the interests of the child prevail and indeed would Parliament have so intended?
+THE DISSENTING JUDGMENTS
+In para 65 below Lord Sumption complains that the only proposed ground for allowing the appeal is that it is highly unlikely, albeit conceivable that one habitual residence will be lost before another is acquired.
+There, with respect, Lord Sumption misunderstands my judgment.
+What I suggest in para 45 above is that the modern concept of habitual residence operates in the expectation that an old habitual residence is lost when a new one is gained.
+The mere unlikelihood of the correctness of an outcome favoured by a judge would be a disgraceful ground for allowing an appeal.
+The ground for allowing this appeal is that the modern concept of habitual residence identifies the point of its loss as being the stage when the person achieves the requisite degree of disengagement from the old environment (para 48 above); that intention, in this case parental intention, is no longer dispositive in this respect (para 47 above); that highly relevant to the persons achievement of that requisite degree of disengagement is his achievement of the requisite degree of integration in the new environment (para 48 above); and that, by application of the modern concept, B had not lost her habitual residence in England by 13 February 2014 (para 51 above).
+In para 72 below Lord Sumption quotes from para 44 of the Opinion of Advocate General Kokott in Proceedings brought by A, cited above.
+Might I suggest that inadvertently Lord Sumption has in this regard been too selective? The Advocate General suggests: 44. all the circumstances of the individual case must be taken into account where there is a change of place.
+An indication that the habitual residence has shifted may in particular be the corresponding common intention of the parents to settle permanently with the child in another state.
+The parents intention may manifest itself, for example, in external circumstances such as the purchase or lease of a residence in the new state, notifying the authorities of the new address, establishing an employment relationship, and placing the child in a kindergarten or school.
+As a mirror image, abandoning the old residence and employment and notifying the authorities of departure suggest that habitual residence in the former state is at an end.
+I have set the words quoted by Lord Sumption in italics.
+My understanding, however, is that in para 44 the Advocate General recommends a composite consideration of all the circumstances both in the new environment and, as a mirror image, in the old environment in order to determine whether habitual residence has shifted from the latter to the former.
+She does not suggest consideration only of severance of links with the old environment with a view to determining whether, even if no new habitual residence has been gained, the old one has been lost.
+For it is only in the next paragraph that she turns to that possibility.
+Both Lord Sumption at para 70 and Lord Clarke at para 92 consider that it makes no sense to regard a person as habitually resident in England and Wales if she is not resident there at all because she has left it to live permanently elsewhere.
+With respect, my view is different.
+For me it makes no sense to regard a persons intention, in this case a parents intention, at the moment when the aeroplane leaves the ground as precipitating, at that moment, a loss of habitual residence.
+At all events, and more importantly, I remain clear that such is not the modern law.
+LADY HALE AND LORD TOULSON:
+We agree fully with Lord Wilsons reasoning and conclusion on the issue of habitual residence.
+He has described the identification of a childs habitual residence as overarchingly a question of fact (para 46).
+At the risk of appearing pedantic, we would prefer to describe it as a mixed question of fact and law, because the concept is a matter of law but its application is a matter of fact.
+We do not, however, understand Lord Wilson to be laying down a rule of law that a child must always have an habitual residence: rather that, as a matter of fact, the loss of an established habitual residence in a single day before having gained a new one would be unusual.
+In this particular case, although the respondent said that her intentions were permanent, looked at from the childs point of view, on the relevant date they had been in Pakistan for only nine days, they had no home there, and she had not yet been entered into a school.
+Had the respondent then changed her mind and decided that the move was a bad idea, it is unlikely that a court would have held that the habitual residence of either of them had changed during those few days.
+Lord Wilsons conclusion on the issue of habitual residence makes it unnecessary to reach a decision on the hypothetical question whether it would have been right for the court to exercise its jurisdiction founded on Bs nationality if she had no habitual residence at the time when these proceedings began.
+It is not in doubt that the restrictions on the use of the inherent or parens patriae jurisdiction of the High Court in the Family Law Act 1986 do not exclude its use so as to order the return of a British child to this country: this court so held in A v A (Children: Habitual Residence) [2013] UKSC 60; [2014] AC 1.
+The Court of Appeal devoted a large proportion of their judgment to this aspect of the case.
+Their approach is summed up in para 45: Various words have been used down the years to describe the kind of circumstances in which it may be appropriate to make an order only under extraordinary circumstances, the rarest possible thing, very unusual, really exceptional, dire and exceptional at the very extreme end of the spectrum.
+The jurisdiction, it has been said must be exercised sparingly, with great caution and with extreme circumspection.
+We quote these words not because they or any of them are definitive they are not but because, taken together, they indicate very clearly just how limited the occasions will be when there can properly be recourse to the jurisdiction.
+Lord Wilson has listed a number of important issues to which that question would have given rise and which must wait for another day.
+It is, however, one thing to approach the use of the jurisdiction with great caution or circumspection.
+It is another thing to conclude that the circumstances justifying its use must always be dire and exceptional or at the very extreme end of the spectrum.
+There are three main reasons for caution when deciding whether to exercise the jurisdiction: first, that to do so may conflict with the jurisdictional scheme applicable between the countries in question; second, that it may result in conflicting decisions in those two countries; and third, that it may result in unenforceable orders.
+It is, to say the least, arguable that none of those objections has much force in this case: there is no applicable treaty between the UK and Pakistan; it is highly unlikely that the courts in Pakistan would entertain an application from the appellant; and it is possible that there are steps which an English court could take to persuade the respondent to obey the order.
+The basis of the jurisdiction, as was pointed out by Pearson LJ in In re P (GE) (An Infant) [1965] Ch 568, at 587, is that an infant of British nationality, whether he is in or outside this country, owes a duty of allegiance to the Sovereign and so is entitled to protection.
+The real question is whether the circumstances are such that this British child requires that protection.
+For our part we do not consider that the inherent jurisdiction is to be confined by a classification which limits its exercise to cases which are at the extreme end of the spectrum, per McFarlane LJ in In re N (Abduction: Appeal) [2012] EWCA Civ 1086; [2013] 1 FLR 457, para 29.
+The judgment was ex tempore and it was not necessary to lay down a rule of general application, if indeed that was intended.
+It may be that McFarlane LJ did not so intend, because he did not attempt to define what he meant or to explain why an inherent jurisdiction to protect a childs welfare should be confined to extreme cases.
+The judge observed that niceties as to quite where the existing extremity of the jurisdiction under the inherent jurisdiction may be do not come into the equation in this case (para 31).
+There is strong reason to approach the exercise of the jurisdiction with great caution, because the very nature of the subject involves international problems for which there is an international legal framework (or frameworks) to which this country has subscribed.
+Exercising a nationality based inherent jurisdiction may run counter to the concept of comity, using that expression in the sense described by US Supreme Court Justice Breyer in his book The Court and the World (2015), pp 91 92: the court must increasingly consider foreign and domestic law together, as if they constituted parts of a broadly interconnected legal web.
+In this sense, the old legal concept of comity has assumed an expansive meaning.
+Comity once referred simply to the need to ensure that domestic and foreign laws did not impose contradictory duties upon the same individual; it used to prevent the laws of different nations from stepping on one anothers toes.
+Today it means something more.
+In applying it, our court has increasingly sought interpretations of domestic law that would allow it to work in harmony with related foreign laws, so that together they can more effectively achieve common objectives.
+If a child has a habitual residence, questions of jurisdiction are governed by the framework of international and domestic law described by Lord Wilson in paras 27 to 29.
+Conversely, Lord Wilson has identified the problems which would arise in this case if B had no habitual residence.
+The very object of the international framework is to protect the best interests of the child, as the CJEU stressed in Mercredi.
+Considerations of comity cannot be divorced from that objective.
+If the court were to consider that the exercise of its inherent jurisdiction were necessary to avoid Bs welfare being beyond all judicial oversight (to adopt Lord Wilsons expression in para 26), we do not see that its exercise would conflict with the principle of comity or should be trammelled by some a priori classification of cases according to their extremity.
+LORD SUMPTION (dissenting) (with whom Lord Clarke agrees):
+Introduction
+I regret that I am unable to agree with the opinion of the majority.
+The reason, in summary, is that while the test for what constitutes habitual residence is a question of law, whether it is satisfied is a question of fact.
+The judge directed herself in accordance with all the relevant authorities.
+She heard the evidence of both ladies in addition to reviewing a substantial volume of other material.
+She found as a fact that the child lost her habitual residence in the United Kingdom on 3 February 2014, when she left the United Kingdom with the Respondent to start a new life in Pakistan with no intention of returning.
+That finding was upheld by the Court of Appeal.
+It followed that the child was not habitually resident in the United Kingdom on 13 February when these proceedings were begun, even though by then she was probably not yet sufficiently integrated into the life of Pakistan to have acquired habitual residence there.
+The sole ground on which it is now proposed to set the judgment aside is that it is highly unlikely, albeit conceivable that habitual residence will be lost before a new habitual residence has been acquired.
+I remain uncertain whether this is said to be a principle of law or a proposition of fact.
+So far as it is a principle of law, it appears to me to be wrong.
+So far as it is a proposition of fact, the judge addressed all the relevant considerations in making her findings.
+It is said that this result leaves the child in a jurisdictional limbo because on that footing she has no habitual residence anywhere.
+In my opinion, there is no jurisdictional limbo.
+Habitual residence is the primary test for jurisdiction, but it is not the only one.
+In English and EU law, in the absence of an ascertainable habitual residence, jurisdiction may be founded on the presence of the child.
+No attempt has been made to prove that the law of Pakistan is any different, and I would be very surprised if it was.
+The real objection to the courts of Pakistan is not that they lack jurisdiction but that they are likely to disapprove of same sex relationships and will not necessarily recognise a non genetic family relationship.
+That is a source of legitimate concern to the English courts, but it is not a basis on which they are entitled to claim jurisdiction.
+Loss of habitual residence
+I will deal first with the suggestion that there is something wrong in principle with a finding that a former habitual residence has been lost before a new one has been obtained.
+The habitual residence of a child is the primary basis of jurisdiction in member states of the European Union, by virtue of article 8 of Council Regulation (EC) 2201/2003.
+In Proceedings brought by A (Case C 523/07) [2010] Fam 42, the Court of Justice held that this meant that the presence of the child within the jurisdiction of a state must be: not in any way temporary or intermittent and that the residence of the child reflects some degree of integration in a social and family environment.
+In particular, the duration, regularity, conditions and reasons for the stay on the territory of a member state and the familys move to that state, the child's nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state must be taken into consideration.
+As the Advocate General pointed out in para 44 of her opinion, the parents intention to settle permanently with the child in another member state, manifested by certain tangible steps such as the purchase or lease of a residence in the host member state, may constitute an indicator of the transfer of the habitual residence.
+Another indicator may be constituted by lodging an application for social housing with the relevant services of that state. (paras 38 40) This statement was substantially repeated in Mercredi v Chaffe (Case C 497/10PPU) [2012] Fam 22, and was adopted by this court as part of the domestic law of England in A v A (Children: Habitual Residence) [2014] AC 1.
+Recital (12) of the Council Regulation recites that the grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child.
+In the context of article 12 of the Regulation, the Court of Justice has recently drawn attention to this recital in E v B (Case C 436/13) [2015] Fam 162, para 45.
+But its value, as both the recital and the judgment make clear, is as a guide the interpretation of the Regulations jurisdictional rules.
+It explains why the social integration test of habitual residence has been adopted.
+Now that it has been adopted, the task of the courts is to apply it.
+The recital is not a licence to treat questions of jurisdiction as discretionary or to import legal qualifications into the essentially factual exercise of determining where a child is socially integrated and where she is not.
+A person may be resident in a country without being habitually resident there.
+It is inherent in the concept of a habitual residence that in many, probably most cases, a new residence may not become habitual until some time has elapsed.
+The same is true of the integration test for habitual residence which has been adopted by EU and English law.
+Integration into the social and family environment of a new place of residence cannot always be achieved at once.
+However, it is self evidently easier to lose a habitual residence at once.
+This is because the severance of old links is a unilateral act.
+It can be achieved faster than the acquisition of new ones which involve the engagement of other people and institutions.
+It makes no sense to regard a person as habitually resident in the United Kingdom if she is not resident there at all because she has left it to live permanently elsewhere.
+The fact that there is a house in the United Kingdom which could be reoccupied or that there are friends or relations in the United Kingdom to which the child could return are irrelevant if (as the judge accepted) the child had been lawfully and permanently removed from the country.
+Of course this does mean that there may be a period during which the child, although resident in a particular country is not habitually resident anywhere.
+Other jurisdictional tests, such as presence within the jurisdiction, nationality or domicile would have had the advantage of allowing a seamless transition from one status to another.
+But the law has not adopted these tests.
+Instead it has adopted a test which by its nature is liable to produce a hiatus.
+This is simply an inescapable consequence of the concept of a habitual residence in a case where a child migrates from a familiar to an unfamiliar place.
+The courts have had no difficulty in accepting these as obvious propositions of fact.
+Advocate General Kokott in Proceedings brought by A (Case C 523/07) acknowledged that abandoning the old residence and employment and notifying the authorities of departure suggest that habitual residence in the former state is at an end (para 44) and that in exceptional cases during a transitional stage there will no longer be habitual residence in the former state while the status in the new state has not yet crystallised into habitual residence (para 45).
+She thought that such situations would be exceptional, but in the nature of things they can be no more exceptional than the facts which give rise to them.
+In In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, 578 579, Lord Brandon, speaking for a unanimous appellate Committee, observed that: there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long term residence in country B instead.
+The courts have more recently expressed reservations about parts of this passage, mainly because it tends to overstate the difficulty of acquiring a new habitual residence.
+As Baroness Hale observed in A v A (Children: Habitual Residence), supra, at para 44, this is best seen as helpful generalisations of fact, which will usually but not invariably be true.
+That is of course because habitual residence is a question of fact, as Lord Brandon himself had pointed out immediately before the passage cited.
+She went on, in the same paragraph, to adopt that part of Lord Brandons generalisation which is directly relevant to the present case: I would not accept that it is impossible to become habitually resident in a single day.
+It will all depend on the circumstances.
+But I would accept that one may cease to be habitually resident in one country without having yet become habitually resident in another.
+If an old habitual residence cannot be lost until a new one has been acquired, it must therefore be by virtue of some rule of rule of law by which regardless of the facts the severance of the childs links with her former habitual residence is somehow deemed in law to be suspended pending the acquisition of a new habitual residence.
+Yet it is far from clear to me how this is to be reconciled with what is an essentially a factual enquiry, as every court which has hitherto considered this question has emphasised.
+In A v A, at para 39 Baroness Hale deprecated the tendency of the courts to overlay the factual concept of habitual residence with legal constructs.
+These observations were later repeated by Baroness Hale in In re L (A Child) (Custody: Habitual Residence) [2014] AC 1017 at paras 20 21, and more recently by Lord Reed, with whom every other member of this court agreed, in the Scottish case of In re R (Children) [2016] AC 76, para 17.
+The judgment of the Court of Appeal, delivered by Black LJ, put the point, at para 29, in terms which I cannot improve upon: The arguments advanced by the appellant and also on behalf of the intervener, Reunite, appeared at times to amount to an invitation to swathe habitual residence in sub principles, or glosses, or comments, in a way which would fly in the face of the determinedly factual approach of the European jurisprudence and the Supreme Court.
+So, for example, we were invited to say that it would only be in exceptional cases that a child would lose one habitual residence before acquiring another it may be that there will turn out to be relatively few cases in which the habitual residence of a child does not transfer seamlessly from one country to another, but if so, that will be because the facts tend to be that way and not because the courts impose upon themselves the artificial discipline of only finding it otherwise in exceptional circumstances.
+A jurisdictional limbo?
+The notion that there must be a seamless transfer of habitual residence is a classic legal construct, which has no place in the essentially factual enquiry involved in identifying a childs habitual residence.
+The reason given by the majority for adopting that notion is not that it is factually impossible, or virtually so, for a child to have no habitual residence.
+Their reason is that it is legally undesirable because it produces a jurisdictional limbo.
+However it may be described by its authors, I find it impossible to regard this as anything other than a proposition of law.
+And I respectfully suggest that it is not correct.
+Article 13 of the Council Regulation provides for residual jurisdiction to lie with the courts of the country where the child is present in a case where a childs habitual residence cannot be established.
+As Advocate General Kokott pointed out at para 45 of her advice in Proceedings brought by A, supra, article 13 was included precisely in order to cover the situation where a former habitual residence has been lost but the childs status in her new home has not yet crystallised into habitual residence.
+A similar provision appears in article 6(2) of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co operation in Respect of Parental Responsibility and Measures for the Protection of Children.
+Jurisdiction based on presence is also provided for by sections 2 and 3 of the Family Law Act 1986 in cases where neither the Council Regulation nor the 1996 Hague Convention applies, and it serves the same function in that context.
+For this reason, there is no need for a principle of seamless transfer except in cases where the child has been removed to a state (if indeed there is such a state) where there is no jurisdiction founded on the presence of the child within its territory.
+It may well be true, as Lord Wilson observes (para 30), that jurisdiction based on presence is unsatisfactory because in a case where a child has no habitual jurisdiction it allows an adult to move a child to a jurisdiction thought to be favourable to his or her case.
+However, in the first place, adults can do that anyway.
+Secondly, for better or for worse that is what the Regulation, the Conventions and the Act provide.
+And third, the English courts have no right under the Family Law Act to assert jurisdiction simply on the ground that they do not approve of the law or practice which would be applied in the courts of the country where the child is located.
+So far as this is a problem, the solution to it is not to construct an artificial habitual residence in the place which the child has left for good.
+It is for the English courts to be more ready than they have traditionally been to recognise that a new habitual residence can be rapidly acquired.
+The Council Regulation assumes that it will normally have been acquired in three months: see article 11(7); and in A v A Baroness Hale declined to assume that it could not be acquired in a single day.
+It should be noted that the present issue would not arise in a case where the child was wrongfully removed in breach of rights of any persons rights of custody.
+This is because article 10 of the Council Regulation confers jurisdiction on courts of the country where the child was habitually resident immediately before his removal.
+There are similar provisions in article 4 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction and article 7 of the 1996 Hague Convention.
+The fact that the child may have no habitual residence for a period after his removal is therefore irrelevant.
+The appellants difficulty in this case is that she had no parental rights at the time of the childs departure from the United Kingdom.
+She was not registered as a parent at birth.
+There was no civil partnership, no adoption, no parental rights agreement and no court order recognising her status with regard to the child.
+The judge found that the respondent was not trying to escape from the jurisdiction of the English court.
+She was in law the childs sole parent who was absolutely entitled to exercise her parental rights by removing her to Pakistan.
+Although Lord Wilson characterises the removal as secret and clandestine, the judge made no finding of underhand conduct which could warrant these pejorative epithets.
+The Judges findings
+The judge directed herself in accordance with the observations of Lord Brandon in In re J, so far as these were approved and explained by the Supreme Court in A v A and In re L.
+She concluded that the child was too young to have a habitual residence other than that of the woman who had always been her primary carer and on whom she was wholly dependent.
+That seems an obvious conclusion in the case of a five year old child, but at the very least it was a permissible one.
+I do not understand the majority to dissent from it.
+The judge then set out at paras 27 28 her reasons for concluding that the habitual residence of both of them in the United Kingdom was lost when they left for Pakistan: 27.
+The mother said she left this jurisdiction to make a new life in Pakistan.
+She had actually been thinking about it seriously since July of last year.
+She made her fact finding trip in November following which she made a decision.
+She had the support of her family.
+They knew what she was about.
+She and [B] said their goodbyes to school, to the family.
+They left their home, packed up their possessions and the mother sent a letter with the keys of the house to the applicant.
+She is admittedly still paying her share of the mortgage to preserve her share of the asset, that matter has yet to be resolved between the two ladies.
+She had the intention to set up a new life.
+She had lost her job.
+She was finding it financially difficult to be in this country even when she was working and she had laid the ground for a new life in Pakistan.
+It is important to note what she did immediately upon arrival in Pakistan.
+Until the end of April she was unaware of the applicants application to this court, but the mother found herself a new home and a school for the child to which they both moved in on 19 February, just 15 days after their arrival.
+They had previously been staying with friends.
+She had work already upon her arrival, at which she has continued, and she made an application for an ID card, which she obtained before she became aware of these proceedings. 28.
+As I have said, I am not satisfied she was running away as alleged by the applicant, and I accept her intention that she intended to create a new life for herself and for [B] in Pakistan.
+On that basis, she lost her habitual residence here.
+Next the judge considered the perception of the child.
+Without making any finding about the appellants evidence that the child wished to keep in touch with her, the judge held that even if she did, that did not mean that her habitual residence remained in the United Kingdom after 3 February 2014: The mother is the sole legal parent and in moving her she had planned a life away from this country.
+It was not a wrongful removal.
+She was exercising her parental responsibility. [B]s wish to remain in touch is something that I must consider.
+It does not necessarily mean that the child has to remain in the country.
+There are many children throughout the world who remain in touch with families or members of a family or even friends when they are relocated by their parents.
+This is another relocation and a child wishing to remain in touch with a significant person.
+In my view her wish to remain in touch with the applicant does not justify making or continuing an individual habitual residence in this country when the mother has abandoned her own.
+This is a classic evaluative judgment on a question of fact with which this court should in principle decline to interfere, just as the Court of Appeal declined to do so.
+If it was legally possible for the respondent and the child to terminate their previous habitual residence in the United Kingdom before their residence in Pakistan became habitual, then it is difficult to envisage a clearer case of it than this one.
+That leaves only the possibility that it might not be legally possible to create such a hiatus.
+But the authorities in this court which show that it is legally possible are consistent, recent and in my respectful opinion plainly right.
+Inherent jurisdiction
+The inherent jurisdiction of the High Court with respect to children originated in an age where the civil courts had no statutory family jurisdiction.
+It is based on the concept of a quasi parental relationship between the sovereign and a child of British nationality.
+It enables the courts to make a British child a ward of court, even if the child is outside the jurisdiction when the order is made.
+The continued existence of an inherent jurisdiction in an age of detailed and comprehensive statutory provision is something of an anomaly.
+The basis of the jurisdiction is, moreover, difficult to reconcile with the content of the statutory rules about jurisdiction.
+It is based on nationality, whereas the statutory rules are based on habitual residence and presence.
+Nonetheless, its survival was implicitly recognised by sections 1(1)(d) and 2(3) of the Family Law Act 1986, which prohibited the exercise of the jurisdiction so as to give care of a child to any person or provide for contact with or the education of a child, unless either the court had jurisdiction under the Council Regulation or the 1996 Hague Convention or, if neither of these applied, the child is present or habitually resident in the United Kingdom.
+Its survival in other cases was acknowledged by this court in A v A, supra, subject to the proviso that its exercise would call for extreme circumspection (paras 63, 65).
+The case law, which fully bears out that proviso, is summarised in the judgment of the Court of Appeal, and I will not repeat that exercise here.
+The appellant in the present case invites the court, on the footing that there is no statutory jurisdiction, to use its inherent jurisdiction to order the return of the child to the United Kingdom.
+Such orders have been made in two classes of case, both of which can broadly be described as protective.
+The first comprises abduction cases before the enactment of a statutory jurisdiction to deal with them.
+The second comprises cases where the child is in need of protection against some personal danger, for example where she has been removed for the purpose of undergoing a forced marriage or female genital mutilation.
+All of the modern cases fall into this last category.
+A dissenting judgment is not the place for a detailed examination of the ambit of the inherent jurisdiction.
+Nor is such an examination required in order to determine this appeal.
+For present purposes, it is enough to make three points.
+First, the jurisdiction is discretionary, and should not be overturned in the absence of some error of principle or misunderstanding of the facts, unless the judge has reached a conclusion that no judge could reasonably have reached.
+The judge declined to exercise the jurisdiction because the appellant had been entitled to exercise her parental rights by taking the child to Pakistan and there was no reason to regard the child as being in danger there.
+In those circumstances, the admitted detriment to the child in being deprived of face to face contact with the appellant could not justify requiring the respondent to bring the child back.
+The Court of Appeal reached the same conclusion for substantially the same reason.
+The situation, they said (para 53), falls short of the exceptional gravity where it might indeed be necessary to consider the exercise of the inherent jurisdiction.
+I agree with this, but on any view I think that it was a view that a judge could reasonably take.
+Secondly, the inherent jurisdiction should not be exercised in a manner which cuts across the statutory scheme.
+If, as Lady Hale and Lord Toulson suggest, the use of the inherent jurisdiction is not reserved for exceptional cases, the potential for it to cut across the statutory scheme is very considerable.
+I have no doubt that it would do so in this case.
+In the first place, it would fall to be exercised at a time when the child will have been with her mother in Pakistan for at least two years, and will probably have become habitually resident there.
+Secondly, it seems plain that if an application under the inherent jurisdiction had been made by, say, an aunt or a sister of the respondent, there could be no ground for acceding to it.
+It is necessary to make this point in order to remind ourselves that it is to protect her relationship with the child on the basis that she should be regarded as a co parent that the appellant is invoking the inherent jurisdiction of the court.
+The real object of exercising it would be to bring the child within the jurisdiction of the English courts (i) so that the court could exercise the wider statutory powers which it is prevented by statute from exercising while she is in Pakistan, and (ii) so that they could do so on different and perhaps better principles than those which would apply in a court of family jurisdiction in Pakistan.
+Thirdly, this last point is reinforced by the consideration that the appellants application in the English courts is for contact and shared residence.
+This is not relief which the statute permits to be ordered under the inherent jurisdiction, in a case where there is no jurisdiction under the Council Regulation or the 1996 Hague Convention.
+I do not accept that the inherent jurisdiction can be used to circumvent principled limitations which Parliament has placed upon the jurisdiction of the court.
+For these reasons, in addition to those given by the judge and the Court of Appeal, I do not think that an order for the childs return could be a proper exercise of the courts powers.
+Third, if there were grounds for believing the child to be in danger, or some other extreme facts justifying the exercise of the inherent jurisdiction, it would no doubt be possible in the exercise of the courts inherent jurisdiction to direct an independent assessment of the situation of the child in Pakistan.
+Unless the facts were already clear, that would be the least that a court should do before it could be satisfied that she should be compulsorily returned to this country.
+In the present case, that assessment would also have to take account of the impact on the child of her removal for the second time of her life from a place where she is by now presumably settled, as well as the impact on her of the disruption of her primary carers life which would be involved in requiring her to abandon her life and job in Pakistan to return to a country where she has no job, is estranged from her family and has no desire to reside.
+But we are not in that territory.
+The courts below have held that there are no such grounds, and we have no basis on which to disagree with them.
+The mere absence of statutory jurisdiction in the English courts cannot possibly be a reason for exercising the inherent jurisdiction.
+On the contrary, in a case like this it is a reason for not doing so.
+Given that the inherent jurisdiction exists to enable the English court to exercise the sovereigns protective role in relation to children, from what is it said that B needs to be protected? As I understand it, the suggestion is that she needs to be protected from the presumed unwillingness of the courts of Pakistan to recognise the status of the appellant in relation to the child in the way that the English court would now do if they had statutory jurisdiction.
+I cannot regard this as a peril from which the courts should rescue the child by the exercise of what is on any view an exceptional and exorbitant jurisdiction.
+Disposition
+For these reasons, I would dismiss the appeal.
+LORD CLARKE:
+essentially for the reasons he gives.
+Habitual Residence
+Hogg J held that B lost her habitual residence here when she was taken to Pakistan and the Court of Appeal held that there was no reason to interfere with that conclusion.
+Hogg J is a very experienced family lawyer.
+So too are at least two members of the Court of Appeal, namely Munby P and Black LJ, who gave the judgment of the court to which all three members contributed.
+My principal reason for preferring the opinion of Lord Sumption to that of the majority is that there is, in my opinion, no principled basis for holding that the decision of Hogg J was wrong, either in law or on the facts.
+She was entitled to reach the conclusions which she did and the Court of Appeal were right to dismiss the appeal from her decision.
+In short I agree with Lord Sumptions conclusion at para 80 that Hogg Js judgment is a classic evaluative judgment on a question of fact with which this court should decline to interfere, just as the Court of Appeal declined to do.
+In this appeal I have reached the same conclusions as Lord Sumption,
+In particular, after setting out her conclusions of fact at paras 26 to 28, Hogg J was in my opinion entitled to hold (as she did at para 29) that, when the mother lost her habitual residence on leaving the United Kingdom, so did B. I agree with Lord Sumption that there is nothing wrong in principle with a finding that a former habitual residence has been lost before a new one has been obtained.
+All depends upon the facts of the particular case.
+On the facts here I agree with him (at para 96) that it is self evidently easier to lose a habitual residence at once than acquire a new one and that it makes no sense to regard a person as habitually resident in the United Kingdom if she is not resident at all because she has left to live permanently elsewhere.
+Finally, I agree with him that if, as Hogg J held here, the child had been lawfully and permanently removed from the country, the fact that there is a house in the UK which could be reoccupied or there are friends and relations to whom the child could return is irrelevant.
+In para 28 of the judgment in the Court of Appeal, after referring to a number of recent cases including A v A (Children: Habitual Residence) [2013] UKSC 60; [2014] AC 1, Black LJ said this: The European formulation of the test (to be found in Proceedings brought by A [2010] Fam 42 at para 2, as quoted in A v A at para 48) is the correct one, namely that the concept of habitual residence must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment.
+The inquiry is a factual one, requiring an evaluation of all relevant circumstances in the individual case.
+It focuses upon the situation of the child, with the purposes and intentions of the parents being merely among the relevant factors.
+It should not be glossed with legal concepts.
+And, as Lord Reed observed at para 18 of In re R (Children) [2015] UKSC 35; [2015] 2 WLR 1583, when the lower court has applied the correct legal principles to the relevant facts, its evaluation will not generally be open to challenge unless the conclusion which it reached was not reasonably open to it.
+I respectfully agree.
+Black LJ then set out her para 29, which is quoted with approval by Lord Sumption.
+Finally, in para 30 she expressed the view that Hogg Js approach to habitual residence was in line with the authorities.
+She then specifically (and correctly) considered Bs position separately from that of her mother and concluded: [Hogg J] described in her judgment the situation in this country and the situation in Pakistan in such a way as to show that she had looked both at what P was leaving and what was awaiting her in Pakistan.
+In short, she applied the proper principles to the relevant facts and there is no reason to interfere with her finding that P lost her habitual residence here when she left for Pakistan.
+Again, I agree.
+For these reasons, which are essentially the same as those given by Lord Sumption, namely that neither Hogg J nor the Court of Appeal erred in fact or law, I would have dismissed the appeal on the habitual residence point.
+Inherent jurisdiction
+I agree with Lord Sumption that the appeal on this ground should also be dismissed.
+I do so for essentially the same reasons as on the habitual residence point, namely that Hogg J made no error of fact or law and that the Court of Appeal correctly so held.
+I agree with Lady Hale and Lord Toulson that the court must approach the use of the inherent jurisdiction with great caution and circumspection for the reasons they give.
+However, I agree with Lord Sumption that on the facts of this case it should not use the inherent jurisdiction to order B to be returned to the jurisdiction in order to enable it to exercise its statutory jurisdiction in circumstances in which it would not otherwise have that jurisdiction.
+This is not to say that there may not be circumstances in which it would be appropriate for the English court in another case to consider the welfare of the child more generally without requiring his or her return to the jurisdiction, at any rate in the first instance.
+As ever, all will depend on the circumstances.
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+This appeal concerns the question whether the provisions of Part 4 of the Children and Young People (Scotland) Act 2014 lie within the legislative competence of the Scottish Parliament.
+Before considering the issues that arise (summarised in para 26 below), it is helpful to begin with an account of the background to the legislation.
+A suitable starting point is the consultation paper, A Scotland for Children, published by the Scottish Government in July 2012.
+In general terms, two ideas underlay many of the proposals.
+The first was a shift away from intervention by public authorities after a risk to childrens and young peoples welfare had been identified, to an emphasis on early intervention to promote their wellbeing, understood as including all the factors that could affect their development.
+The second was a shift away from a legal structure under which the duties of statutory bodies to cooperate with one another (under, for example, section 13 of the National Health Service (Scotland) Act 1978 and section 21 of the Children (Scotland) Act 1995) were linked to the performance of their individual functions, to ensuring that they work collaboratively and share relevant information so that all relevant public services can support the whole wellbeing of children and young people (para 73).
+In that regard, the consultation paper stated that it was essential that information is shared not only in response to a crisis or serious occurrence but, in many cases, information should be shared about relevant changes in a child's and young persons life.
+There was, however, no commonly agreed process for routine information sharing about concerns about wellbeing (para 110).
+The establishment of a new professional role, that of named person, was proposed in order to address those concerns (para 111).
+On its introduction in April 2013, the Children and Young People (Scotland) Bill was accompanied by a Policy Memorandum which was similar in content to the consultation paper.
+It stated, in relation to named persons: They can monitor what children and young people need, within the context of their professional responsibilities, link with the relevant services that can help them, and be a single point of contact for services that children and families can use, if they wish.
+The named person is in a position to intervene early to prevent difficulties escalating.
+The role offers a way for children and young people to make sense of a complicated service environment as well as a way to prevent any problems or challenges they are facing in their lives remaining unaddressed due to professional service boundaries. (para 68) The Bill aimed to ensure that every child in Scotland had a named person (para 70).
+It provided for a wide ranging duty on all relevant public authorities to cooperate with the named person in the conduct of their duties.
+This would be of particular importance in the area of information sharing, since the role of the named person will depend on the successful sharing of information between relevant public authorities (para 73).
+The memorandum explained that concern had been expressed about the existing legal framework for information sharing.
+This was felt to be confusing and potentially insufficient to enable the role of the named person to operate as well as anticipated.
+In particular, there were concerns regarding sharing information about children where consent was not given (para 75).
+The memorandum continued: Currently, information about a child may be shared where the child is at a significant risk of harm.
+However, the role of the named person is based on the idea that information on less critical concerns about a childs wellbeing must be shared if a full picture of their wellbeing is to be put together and if action is to be taken to prevent these concerns developing into more serious issues.
+Without the necessary power to share that kind of information, the named person will not be able to act as effectively as is intended Specific provisions in the Bill, therefore, set out arrangements on information sharing, to give professionals and named persons the power to share information about those concerns. (paras 76 77)
+It appears, therefore, that one of the principal purposes of Part 4, as envisaged at that stage, was to alter the existing law in relation to the sharing of information about children and young people, so as to enable information about concerns about their wellbeing, held by individual bodies, to be pooled in the hands of named persons and shared with other bodies, with the ultimate aim of promoting their wellbeing.
+The provisions of Part 4
+Part 4 of the Act begins with section 19, which defines a named person service as the service of making available, in relation to a child or young person, an identified individual who is to exercise the functions listed in subsection (5): (a) doing such of the following where the named person considers it to be appropriate in order to promote, support or safeguard the wellbeing of the child or young person (i) advising, informing or supporting the child or young person, or a parent of the child or young person, (ii) helping the child or young person, or a parent of the child or young person, to access a service or support, or (iii) discussing, or raising, a matter about the child or young person with a service provider or relevant authority, and such other functions as are specified by this Act or any (b) other enactment as being functions of a named person in relation to a child or young person.
+In relation to section 19(5)(a)(iii), the expression service provider is defined by section 32 as meaning, in a context of this kind, each health board, local authority, directing authority, and the Scottish Ministers.
+The expression directing authority is defined by section 32 as meaning the managers of each grant aided school, the proprietor of each independent school, and the local authority or other person who manages each residential establishment which comprises secure accommodation.
+The expression relevant authorities is defined by section 31 and Schedule 2 as including a wide variety of public bodies, including NHS 24, NHS National Services Scotland, the Scottish Ambulance Service Board, the Scottish Sports Council, the Scottish Police Authority, and the Scottish Fire and Rescue Service.
+Under sections 20 and 21, responsibility for the provision of a named person service lies with health boards in relation to all pre school children residing within their area, and generally with local authorities in relation to all other children residing within their area.
+There are exceptions in relation to pupils at independent and grant aided schools, where responsibility lies with the directing authority; children kept in secure accommodation, where responsibility lies with the directing authority; children kept in custody, where responsibility lies with the Ministers; and children (as defined) who are members of the armed forces.
+Under section 22, named person services must also be provided in relation to all young people over 18 who remain at school.
+Responsibility for making provision for them in that situation lies with the local authority, except in relation to young people at independent or grant aided schools, where responsibility lies with the directing authority.
+Section 23 deals with the communication of information following a change in the identity of the service provider in relation to a child or young person (defined by section 32, in this context, as meaning the person whose function it is to make arrangements for the provision of a named person service in relation to the child or young person).
+That will occur, for example, when a child first goes to school, and the service provider ceases to be the health board and becomes the local authority or directing authority, or when a child goes from a local authority school to an independent or grant aided school, and the service provider ceases to be the local authority and becomes the directing authority of the school.
+In terms of section 23(2)(b), the outgoing service provider must provide the incoming service provider with: Information falls within section 23(3) if the outgoing service provider considers that: the name and address of the child or young person and (i) each parent of the child or young person (so far as the outgoing service provider has that information), and (ii) all information which the outgoing service provider holds which falls within subsection (3). (a) (b) it is likely to be relevant to (i) the exercise by the incoming service provider of any functions of a service provider under this Part, or (ii) the future exercise of the named person functions in relation to the child or young person, it ought to be provided for that purpose, and (c) its provision would not prejudice the conduct of a criminal investigation or the prosecution of any offence.
+In considering for the purpose of section 23(3)(b) whether information ought to be provided, the outgoing service provider is, so far as reasonably practicable, to ascertain and have regard to the views of the child or young person, taking account of the childs age and maturity: section 23(4) and (5).
+In terms of section 23(6), the outgoing service provider may decide for the purpose of section 23(3)(b) that information ought to be provided only if the likely benefit to the wellbeing of the child or young person outweighs any likely adverse effect on that wellbeing.
+Section 23(7) provides: Other than in relation to a duty of confidentiality, this section does not permit or require the provision of information in breach of a prohibition or restriction on the disclosure of information arising by virtue of an enactment or rule of law.
+Section 24 imposes on service providers a duty to publish information about the operation of the named person service, and to provide children and young people and their parents with information about the arrangements for contacting named persons.
+Section 25 imposes on service providers and relevant authorities a duty to help in the exercise of named person functions.
+Section 26 is concerned with the sharing of information, and is expressed in similar language to section 23.
+It imposes two duties to disclose information, and also confers a power.
+First, under section 26(1), a service provider or relevant authority (or any person exercising a function on their behalf, such as an independent contractor: section 26(10)) must provide to the service provider in relation to a child or young person any information which falls within subsection (2).
+Information falls within section 26(2) if the information holder considers that: (a) it is likely to be relevant to the exercise of the named person functions in relation to the child or young person, it ought to be provided for that purpose, and (b) (c) its provision to the service provider in relation to the child or young person would not prejudice the conduct of any criminal investigation or the prosecution of any offence.
+Secondly, under section 26(3) the service provider in relation to a child or young person must provide to a service provider or relevant authority (or any person exercising a function on their behalf) any information which falls within subsection (4).
+Information falls within section 26(4) if the information holder considers that: it is likely to be relevant to the exercise of any function (a) of the service provider or relevant authority which affects or may affect the wellbeing of the child or young person, (b) it ought to be provided for that purpose, and (c) its provision to the service provider or relevant authority would not prejudice the conduct of any criminal investigation or the prosecution of any offence.
+In considering for the purpose of section 26(2)(b) and the corresponding provision in section 26(4)(b) whether information ought to be provided, the information holder is, so far as reasonably practicable, to ascertain and have regard to the views of the child or young person, taking account of the childs age and maturity: section 26(5) and (6).
+In terms of section 26(7), the information holder may decide for the purpose of section 26(2)(b) and (4)(b) that information ought to be provided only if the likely benefit to the wellbeing of the child or young person outweighs any likely adverse effect on that wellbeing.
+Thirdly, section 26(8) confers an additional power: the service provider in relation to a child or young person may provide to a service provider or relevant authority any information which falls within subsection (9).
+Information falls within section 26(9) if the information holder considers that its provision to the service provider or relevant authority is necessary or expedient for the purpose of the exercise of any of the named person functions.
+Finally, in relation to section 26, subsection (11) provides: Other than in relation to a duty of confidentiality, this section does not permit or require the provision of information in breach of a prohibition or restriction on the disclosure of information arising by virtue of an enactment or rule of law.
+Section 27 makes further provision in relation to the disclosure of information in breach of a duty of confidentiality: where a person by virtue of Part 4 provides information in breach of such a duty and informs the recipient of that breach, the recipient may not provide the information to another person unless its provision is permitted or required by virtue of any enactment or rule of law.
+Section 28 imposes a duty on local authorities, health boards, directing authorities and relevant authorities to have regard to guidance issued by the Ministers about the exercise of functions conferred by Part 4.
+Section 29 imposes a duty on the same bodies to comply with any direction issued by the Ministers.
+Section 30 confers on the Ministers a power to make provision about complaints concerning the exercise of functions conferred by or under Part 4.
+These provisions confirm that one of the central purposes of Part 4 is to establish new legal powers and duties, and new administrative arrangements, in relation to the sharing of information about children and young people, so as to create a focal point, in the form of named persons, for the pooling and sharing of such information, and the initiation of action to promote their wellbeing.
+The terms in which sections 23 and 26 define the information which is subject to those powers and duties indicate an intention that the range of information to be shared will depend on the exercise of judgement by the information holder, and is potentially very wide.
+That is consistent with the emphasis in the consultation paper on collaborative working and routine information sharing.
+Thus, under sections 23(3) and 26(2), the duty to share information does not depend on whether it is objectively relevant or necessary that it should be shared, but on whether the information holder considers that the information is likely to be relevant to the exercise of the named person functions (or, as the case may be, the functions of a service provider under Part 4): functions which are defined by section 19(5) by reference to what the named person considers to be appropriate in order to promote, support or safeguard wellbeing.
+Section 26(4)(a) is equally wide: the duty again applies to information which the information holder considers is likely to be relevant to the exercise of a function, and in addition the function need not be one which actually affects the wellbeing of a child or young person, but merely one which the information holder considers may affect their wellbeing.
+Section 26(9) is wider still: the power of disclosure conferred by section 26(8) can be exercised in relation to information whose disclosure the information holder considers to be necessary or expedient for the purpose of the exercise of any of the named person functions.
+Wellbeing is not defined.
+The only guidance as to its meaning is provided by section 96(2), which lists eight factors to which regard is to be had when assessing wellbeing.
+The factors, which are known under the acronym SHANARRI, are that the child or young person is or would be: safe, healthy, achieving, nurtured, active, respected, responsible, and included.
+These factors are not themselves defined, and in some cases are notably vague: for example, that the child or young person is achieving and included.
+The identification of a wellbeing need does not of itself give rise to compulsory measures.
+Part 5 of the Act introduces the childs plan and targeted interventions.
+Section 33(2) defines wellbeing need broadly: a child has a wellbeing need if the childs wellbeing is being, or is at risk of being, adversely affected by any matter.
+Where the responsible authority considers that a child has a wellbeing need and that that need cannot be met, or met fully, without a targeted intervention which is capable of meeting the need to some extent, it is to prepare a childs plan for a targeted intervention or interventions.
+A targeted intervention is the provision of services for the child to meet needs which are not capable of being fully met by the general services to children which the relevant authority provides (section 33(4)).
+The childs plan identifies the relevant authority which is to provide the service, the manner in which it is to be provided and the outcome which the targeted intervention is intended to achieve (section 34(1)).
+This does not involve any compulsion.
+Further, in deciding whether a child requires a childs plan the responsible authority is required to consult the named person and, so far as reasonably practicable, to ascertain and have regard to the views of the child and the childs parents, among others (section 33(6)).
+The Scottish Governments revised draft statutory guidance
+Section 28(1) of the Act provides that a local authority, a health board, a directing authority and a relevant authority must have regard to guidance issued by the Scottish Ministers about the exercise of functions under Part 4.
+The Scottish Government in performance of its duty under section 96(3) published revised draft statutory guidance (RDSG) in December 2015.
+The RDSG is aimed at the strategic leaders and operational managers of health boards, local authorities, directing authorities and relevant authorities, which are responsible for operating Parts 4, 5 and 18 of the Act.
+It provides that the organisations must have regard to the guidance in carrying out those functions (para 1.2.2).
+It states (para 1.2.5) that separate practice materials will be made available for practitioners.
+It records the success of the pathfinder project set up in the Highland council area in 2006, which achieved the better coordination of assessment and planning in support of childrens needs by establishing common procedures and processes for sharing concerns about a child (para 1.3.3).
+It states: The pathfinder brought significant improvements to children and young people and their families, reducing the need for statutory intervention in childrens and families lives by resolving potential problems at an earlier stage.
+The improvements included greater clarity about whom families should go to when they needed help, falls in the number of referrals to the Childrens Reporter, a reduced number of children placed on the Child Protection Register, and the focussing of resources on the children who needed most support (para 1.3.3).
+It records that the approach had been adopted to varying degrees across Scotland (para 1.3.4).
+The RDSG provides a useful insight into the context in which the named person is expected to operate.
+It explains that wellbeing is multidimensional (para 2.3.4) and that wellbeing is a broader, more holistic concept than welfare (para 2.3.5).
+It advises on the relationship between child protection and wellbeing in these terms at para 2.3.6: child protection is not something which sits separately from wellbeing.
+Indeed a series of low level indicators of wellbeing need (whether obviously related or not) taken together can amount to a child protection issue.
+Child protection requires taking prompt action to safeguard a child where an assessment indicates that the child may be at risk of significant harm.
+The childs wider wellbeing should also be assessed to ensure their current and future holistic needs are considered.
+In para 2.4.2, it gives guidance on the interpretation of the eight wellbeing indicators in section 96(2) as follows: Safe protected from abuse, neglect or harm at home, at school and in the community.
+Healthy having the highest attainable standards of physical and mental health, access to suitable healthcare, and support in learning to make healthy, safe choices.
+Achieving being supported and guided in learning and in the development of skills, confidence and self esteem, at home, in school and in the community.
+Nurtured having a nurturing place to live in a family setting, with additional help if needed, or, where this is not possible, in a suitable care setting.
+Active having opportunities to take part in activities such as play, recreation and sport, which contribute to healthy growth and development, at home, in school and in the community.
+Respected having the opportunity, along with carers, to be heard and involved in decisions that affect them.
+Responsible having opportunities and encouragement to play active and responsible roles at home, in school and in the community, and where necessary, having appropriate guidance and supervision, and being involved in decisions that affect them.
+Included having help to overcome social, educational, physical and economic inequalities, and being accepted as part of the community in which they live and learn.
+The RDSG observes (at para 2.5.4) that the views of the child, young person or parents may differ from the practitioners view of wellbeing needs and states that a holistic assessment should take account of all views.
+It recognises that children can thrive in different environments and counsels respect for their and their parents culture and beliefs (para 2.5.5).
+It advises that a referral to the Childrens Reporter should be made where the wellbeing assessment reveals that a child needs protection, guidance, treatment or control and that a compulsory supervision order might be needed (para 2.5.6).
+It continues (at para 2.5.7): Early intervention and a compulsory supervision order are not mutually exclusive in promoting, supporting and safeguarding the wellbeing of a child or young person.
+The use of compulsion at an early stage may help to ensure compliance with interventions, and prevent wellbeing needs escalating.
+Parental capacity and willingness to change should be considered in order to assess whether the childs wellbeing needs are likely to be met by voluntary support or whether a compulsory supervision order might be necessary.
+A named person, on becoming aware of a wellbeing need, should use professional judgement in deciding how to respond.
+Seeking and considering the views of the child and parent should be a key part of the process unless doing this is likely to be detrimental to the childs wellbeing (para 4.1.28).
+The RDSG also gives guidance on the information sharing duties contained in sections 23, 26 and 27 of the Act.
+It records (para 10.1.2) that Part 4 of the Act does not change the type of information being shared and received by service providers and relevant authorities but expresses the view that the Act will increase consistency in practice which in turn is likely to mean that more information will be shared.
+It advises that the Information Commissioners Office (ICO) Guide to Data Protection and its Data Sharing Code of Practice should be used to support the governance of data sharing (para 10.1.4).
+On article 8 of the European Convention on Human Rights (ECHR) it states (para 10.3.1): The right to privacy in article 8 is a qualified rather than an absolute right.
+Public authorities can share information if it is lawful and proportionate to do so, but each case must be considered carefully to assess what is lawful and proportionate in the particular circumstances.
+The RDSG refers to the three tests for the sharing of information in section 26(2) and (4), namely (i) that the information is likely to be relevant to the exercise of the functions in question, (ii) that it ought to be provided for that purpose, and (iii) that the sharing of the information would not prejudice the conduct of a criminal investigation or the prosecution of any offence.
+In its discussion of the second test (para 10.7.4) it states: It is routine good practice to seek parents views about information shared, unless it would be against the childs wishes, where they are considered capable of making that decision, or where seeking the views of the parent may be detrimental to the childs wellbeing.
+It states that in all but exceptional situations, the child or young person, and, as appropriate, their parents will be involved in the decision to share information (para 10.10.3) (emphasis added).
+It does not make the involvement of the parents a requirement in all but exceptional circumstances.
+It says, without elaborating, that there must be no other legal restrictions (paras 10.7.1 and 10.8.1).
+It explains the discretionary power of a named person service provider to share information under section 26(8) and (9) in para 10.11: where the named person service has identified a wellbeing need or has been made aware of a likely wellbeing need they have the opportunity to share information in order to explore options for support or to make enquiries on behalf of the child, young person or parents.
+It states in relation to this discretionary sharing of information (para 10.11.2): Any information shared must be legal and considered in terms of the principles and boundaries of data protection, human rights and childrens rights, again without elaboration.
+It explains section 26(11) in these terms (paras 10.13.2 10.13.4): This sub section of the Act permits health professionals and others governed by a professional or common law duty of confidentiality to legally disclose relevant information without the information providers consent where disclosure of that information has been considered and meets the tests set out in the relevant sub sections of section 26.
+Section 26(11) does not permit or require the sharing of information in breach of any other legal restriction such as the [Data Protection Act 1998 (DPA)], the Human Rights Act 1998, an order of the court or a decision by a Childrens Hearing specifying non disclosure of specific information.
+In all but exceptional situations, the child or young person, and as appropriate their parents, will be involved in the decision to share information and will be told what information has been shared in breach of a duty of confidentiality. (emphasis added)
+Finally, the RDSGs guidance on section 27 (disclosure of information provided in breach of confidentiality) is as follows (para 10.14.2): If the person receiving the information believes it is necessary to share all or part of it in order to promote, support or safeguard the childs wellbeing, then the considerations in section 26 must be applied.
+This would include taking into account the childs views and understanding the likely effect of sharing on the childs wellbeing.
+Other legal requirements must also be considered, including the DPA and the childs right to private and family life under article 8 of the ECHR.
+Decisions to share information in these situations will need to be evidenced, and the rationale recorded. (emphasis added) The reserved matters challenge
+The challenges to legislative competence
+Section 29(1) of the Scotland Act 1998 provides that an Act of the Scottish Parliament is not law so far as any provision of the Act is outside its legislative competence.
+In terms of section 29(2), a provision is outside its competence so far as any of the following paragraphs apply.
+Paragraph (b) applies where the provision relates to reserved matters.
+We address that challenge in section I (paras 27 to 66 below).
+Paragraph (d) applies where the provision is incompatible with any of the Convention rights or with EU law.
+We address the Convention rights challenge and comment briefly on the EU law challenge in sections II and III (paras 67 to 105 below).
+The appellants are four registered charities with an interest in family matters and three individual parents.
+They challenge the lawfulness of the data sharing and retention provisions in the Act on the ground that they relate to reserved matters, with the consequence that section 29(2)(b) of the Scotland Act applies.
+They have focused on sections 26 and 27 of the 2014 Act, but their arguments apply also in relation to section 23(2).
+In terms of section 29(3) of the Scotland Act, the question whether a provision relates to a reserved matter is to be determined (subject to subsection (4), which has no bearing on the present case) by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.
+Section 30 of the Scotland Act gives effect to Schedule 5, in which reserved matters are defined.
+In particular, paragraph 1 of Part II of Schedule 5 provides that the matters to which the Sections in that Part apply are reserved matters.
+As was pointed out by Lord Hope in Imperial Tobacco Ltd v Lord Advocate [2012] UKSC 61; 2013 SC (UKSC) 153, in a judgment with which the other members of the court agreed, the matters listed have a common theme: It is that matters in which the United Kingdom as a whole has an interest should continue to be the responsibility of the UK Parliament at Westminster.
+They include matters which are affected by its treaty obligations and matters that are designed to ensure that there is a single market within the United Kingdom for the free movement of goods and services. (para 29) Amongst the matters listed in Schedule 5 is Section B2: B2.
+Data protection The subject matter of the Data Protection Act 1998, and (a) (b) Council Directive 95/46/EC (protection of individuals with regard to the processing of personal data and on the free movement of such data).
+Paragraph 5 of Part III of Schedule 5 provides that references in the schedule to the subject matter of any enactment are to be read as references to the subject matter of that enactment as it had effect on the principal appointed day, which was 1 July 1999.
+It is therefore the version of the Data Protection Act (DPA) which was in force on that date which is relevant.
+This court has had to apply section 29(2)(b) and (3) on a number of occasions, and the approach to be adopted is now well established.
+In Martin v Most [2010] UKSC 10; 2010 SC (UKSC) 40, para 49, Lord Walker said that the expression relates to was familiar in this sort of context, indicating more than a loose or consequential connection, and the language of section 29(3), referring to a provisions purpose and effect, reinforces that.
+That approach was endorsed by Lord Hope in Imperial Tobacco (para 16).
+Whether a provision relates to a reserved matter, in the sense explained by Lord Walker, is determined by reference to the purpose of the provision in question.
+That purpose is to be ascertained having regard to the effect of the provision, amongst other relevant matters.
+As was said in relation to the similar provisions in the Government of Wales Act 2006 in In re Agricultural Sector (Wales) Bill [2014] UKSC 43; [2014] 1 WLR 2622, para 50: As the section requires the purpose of the provision to be examined it is necessary to look not merely at what can be discerned from an objective consideration of the effect of its terms.
+Determining the purpose of a provision may not be an easy matter.
+For example, must a single predominant purpose be identified, or will the provision relate to a reserved matter provided one purpose which can properly be attributed to it justifies that conclusion? That question was considered, obiter, by Lord Hope in Imperial Tobacco.
+The legislation in issue imposed restrictions upon the advertising and sale of tobacco products, and was challenged as relating to reserved matters, namely consumer protection and product safety.
+Lord Hope stated: I do not see this as a case which gives rise to the problem which may need to be dealt with if the provision in question has two or more purposes, one of which relates to a reserved matter.
+In such a situation the fact that one of its purposes relates to a reserved matter will mean that the provision is outside competence, unless the purpose can be regarded as consequential and thus of no real significance when regard is had to what the provision overall seeks to achieve. (para 43)
+This approach should not be confused with the pith and substance test developed to resolve problems in a number of federal systems, to which the Court of Session referred in the present case.
+Although in Martin v Most Lord Hope mentioned cases applying that test as forming part of the background to the scheme applied in the Scotland Act, he went on to point out that the phrase did not appear in the Act, and that the rules which had to be applied were those laid down in the Act (para 15).
+In Imperial Tobacco, Lord Hope emphasised the latter point: [T]he intention was that it was to the 1998 Act itself, not to decisions as to how the problem was handled in other jurisdictions, that one should look for guidance.
+So it is to the rules that the 1998 Act lays down that the court must address its attention. (para 13) So, in the present case, the Second Divisions finding that the pith and substance of the 2014 Act are child protection does not answer the question whether any of its provisions relate to the subject matter of the DPA and Directive 95/46/EC (the Directive).
+It is necessary only to add that the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is different from the question whether such a provision modifies the law on reserved matters.
+The latter question is addressed by section 29(2)(c) of the Scotland Act and Schedule 4, paragraph 2.
+The subject matter of the Directive
+The Directive was made under article 100a of the EC Treaty, which authorises measures for the harmonisation of national laws with the aim of achieving the internal market.
+The subject matter of the Directive is described in general terms in its title: it is a directive on the protection of individuals with regard to the processing of personal data, and the free movement of such data.
+The link between these two subjects is explained in the recitals.
+In particular, recital 7 states that the difference in levels of protection of the rights and freedoms of individuals, notably the right to privacy, with regard to the processing of personal data afforded in the member states may . constitute an obstacle to the pursuit of a number of economic activities at Community level, distort competition and impede authorities in the discharge of their responsibilities under Community law.
+The recital continues by noting that this difference in levels of protection is due to the existence of a wide variety of national laws, regulations and administrative provisions.
+Accordingly, recital 8 states that in order to remove the obstacles to flows of personal data, the level of protection of the rights and freedoms of individuals with regard to the processing of such data must be equivalent in all member states.
+The intended result, as recital 9 states, is that given the equivalent protection resulting from the approximation of national laws, the member states will no longer be able to inhibit the free movement between them of personal data on grounds relating to protection of the rights and freedoms of individuals, and in particular the right to privacy.
+The scope of application of the Directive is not, however, restricted to situations involving free movement: Bodil Lindquist (Case C 101/01) [2003] ECR I 12971, paras 40 44.
+Turning to the substantive articles of the Directive, Chapter I sets out general provisions.
+In particular, article 1 defines the twofold object of the Directive: In accordance with this Directive, member states shall 1. protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data. 2.
+Member states shall neither restrict nor prohibit the free flow of personal data between member states for reasons connected with the protection afforded under paragraph 1.
+Article 2 defines certain terms, and article 3 describes the scope of the Directive.
+In terms of article 3(1), it applies to the processing of personal data wholly or partly by automatic means, and to the processing otherwise than by automatic means of personal data which form part of a filing system or are intended to form part of a filing system.
+Personal data is defined by article 2(a) as meaning any information relating to an identified or identifiable natural person (data subject).
+Processing of personal data is defined by article 2(b) as meaning any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
+Article 3(2) lists certain circumstances in which the Directive is not to apply.
+It has not been argued that any of those circumstances applies in the present case.
+Chapter II sets out general rules on the lawfulness of the processing of personal data.
+Article 5 requires member states, within the limits of the provisions of that Chapter, to determine more precisely the conditions under which the processing of personal data is lawful.
+Article 6 sets out five general principles, somewhat misleadingly described as principles relating to data quality, to which member states must give effect.
+For example, the second principle is that personal data must be collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes.
+Article 7 sets out six general conditions, described as criteria for making data processing legitimate, which member states must apply to the processing of personal data, so that at least one of the conditions is satisfied.
+Article 8 sets out particular rules in relation to the processing of what are described as special categories of data, including data revealing racial or ethnic origins, and data concerning health or sex life.
+Article 8(1) requires member states to prohibit the processing of such data.
+The remaining paragraphs of article 8 then disapply article 8(1) in a number of specified circumstances, to which it will be necessary to return.
+Articles 10 and 11 require member states to provide that the data controller must provide the data subject with information about the processing of his personal data.
+Article 12 requires member states to guarantee certain rights of data subjects in relation to data controllers.
+Article 13 permits member states to adopt legislation restricting the scope of certain of these rights and obligations where specified conditions are met.
+Article 14 requires member states to grant the data subject the right to object to the processing of his personal data in certain circumstances.
+Most of the remaining provisions of Chapter II are concerned with the regulation of data controllers.
+Chapter III is concerned with judicial remedies, liability, and sanctions.
+Chapter IV is concerned with the transfer of personal data to third countries.
+Chapter V is concerned with codes of conduct, and Chapter VI with the establishment of national supervisory authorities and of an EU working party.
+Finally, Chapter VII is concerned with Community implementing measures.
+Put shortly, therefore, the Directive was designed to harmonise the laws of the member states relating to the protection of individuals interests in relation to the use of their personal data.
+Its provisions specify the standards of protection which the laws of the member states must afford, and the methods by which those standards are to be secured and enforced.
+The subject matter of the DPA
+The DPA is the measure implementing the Directive in the UK.
+One would therefore expect its subject matter to be the same as that of the Directive, and so it proves.
+The subject matter of the DPA is described in general terms in its short title: the regulation of the processing of information relating to individuals, including the obtaining, holding, use or disclosure of such information.
+Part I of the DPA defines some of the critical terms, broadly following the definitions in the Directive.
+Part I also contains some other fundamental provisions of the DPA.
+Section 4 imposes on a data controller an obligation to comply with the data protection principles set out in Part I of Schedule 1, to which it will be necessary to return.
+Section 6 establishes the office of Information Commissioner, known in 1999 (cf para 28 above) as the Data Protection Commissioner.
+Part II of the DPA confers various rights on individuals relating to information concerning themselves, including rights to access personal data (section 7), to prevent processing which is likely to cause damage or distress (section 10), and to apply for the rectification or destruction of inaccurate data (section 14).
+Part III contains provisions relating to the regulation of data controllers by the Commissioner.
+Part IV makes provision for exemptions from the data protection principles, and from Parts II and III.
+Part V concerns enforcement by the Commissioner, and Part VI contains miscellaneous and general provisions.
+It is apparent that the DPA is intended to secure equivalent standards of protection of the rights of individuals in relation to the processing of personal data throughout the UK, and equivalent methods of securing and enforcing those standards.
+That is as one would expect, given the aims of the Directive.
+Accordingly, the DPA applies to data controllers throughout the UK: section 5.
+It establishes a single regulatory authority for the whole of the UK: section 6. (Somewhat confusingly, a separate Scottish Information Commissioner exercises functions under the Freedom of Information (Scotland) Act 2002, but has no regulatory role in relation to data protection).
+The Commissioner is the designated authority in the UK for the purposes of the 1981 Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, and is also the supervisory authority in the UK for the purposes of the Directive: section 54(1).
+He is accountable to the UK Parliament, and must lay before it reports and codes of practice: section 52.
+His accounts are examined by the Comptroller and Auditor General: Schedule 5, Part I, paragraph 10.
+His power to issue codes of practice is exercisable as directed by the Secretary of State: section 51(3).
+The powers to make orders, regulations and rules under the DPA are exercisable only by the Secretary of State, and only by means of a statutory instrument approved by the UK Parliament: see, for example, sections 30, 38, 54, 64 and 67.
+The power to designate codes of practice, for the purpose of exemptions relating to journalism, literature and art, is similarly conferred on the Secretary of State: section 32(3).
+Appeals under the DPA lie to the First tier and Upper Tribunals (in 1999, to the Data Protection Tribunal) throughout the UK: section 70(1).
+The DPA allows scope for derogation from certain of its requirements by enactments either of the UK Parliament or of the Scottish Parliament.
+An example relevant to the present case, to which it will be necessary to return, is section 35(1), under which personal data are exempt from certain provisions relating to the disclosure of information where the disclosure is required by or under any enactment, an expression which is defined by section 70(1) as including any enactment comprised in, or in any instrument made under, an Act of the Scottish Parliament.
+Put shortly, therefore, the DPA was designed to implement the Directive by establishing standards of protection of individuals interests in relation to the use of their personal data, and methods by which those standards are to be secured and enforced, which are equivalent in effect throughout the UK.
+In particular, it imposes obligations on data controllers in relation to the processing of data, and creates rights on the part of data subjects.
+It also creates a system for the regulation of data controllers by the Commissioner.
+It allows scope, however, for derogation from certain of its requirements by legislation which need not be UK wide in application.
+The effect of Part 4 of the 2014 Act in relation to the DPA
+The bodies described in Part 4 of the 2014 Act as service providers, relevant authorities and directing authorities are currently subject, prior to the entry into force of that Act, to a variety of legal duties in relation to the disclosure of information, including duties imposed by the DPA.
+In particular, as mentioned earlier, section 4 of that Act imposes on a data controller an obligation to comply with the data protection principles set out in Part I of Schedule 1.
+Those principles include the following: 1.
+Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless at least one of the conditions in Schedule 2 is met, (a) and in the case of sensitive personal data, at least one (b) of the conditions in Schedule 3 is also met. 2.
+Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes. 3.
+Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.
+Section 2 of the DPA defines sensitive personal data as including (amongst other matters) information as to a persons racial or ethnic origins, his physical or mental health or condition, his sexual life, or the commission or alleged commission by him of any offence.
+Those principles are supplemented by the provisions of Part II of Schedule 1 to the DPA, which indicate how they are to be interpreted.
+For example, Part II contains provisions specifying circumstances in which a data subject is to be provided with information, and the nature of that information, in order for the data to be regarded as having been processed fairly for the purposes of the first principle.
+In relation to the conditions referred to in the first principle, Schedule 2 sets out the following conditions, so far as material to the present case: 1.
+The data subject has given his consent to the processing. 3.
+The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract. 4.
+The processing is necessary in order to protect the vital interests of the data subject. 5.
+The processing is necessary . for the exercise of any functions conferred on any (b) person by or under any enactment . 6. (1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.
+It follows from those conditions that, prior to the entry into force of the 2014 Act, a data controller in Scotland can disclose information about a child or young person without her consent (assuming, in the case of a statutory body, that the disclosure is otherwise within its powers), if the disclosure is necessary to protect her vital interests (condition 4), a test which requires more than that it is likely to benefit her wellbeing; or if the disclosure is necessary for the exercise of a statutory function (condition 5(b)), but not merely because it considers that the information is likely to be relevant to the exercise of that function.
+The data controller is also, of course, obliged to comply with the other data protection principles so far as relevant, and with any requirements arising from Part II of Schedule 1.
+In particular, it is required to comply with the third data protection principle, in terms of which personal data must be relevant (and not merely considered by the data controller to be likely to be relevant) in relation to the purpose or purposes for which they are processed.
+conditions, so far as material: In relation to sensitive data, Schedule 3 sets out the following additional 1.
+The data subject has given his explicit consent to the processing of the personal data. 3.
+The processing is necessary in order to protect the vital interests of the data (a) subject or another person, in a case where consent cannot be given by or on behalf of (i) the data subject, or (ii) the data controller cannot reasonably be expected to obtain the consent of the data subject, or in order to protect the vital interests of another (b) person, in a case where consent by or on behalf of the data subject has been unreasonably withheld. 7. (1) The processing is necessary for the exercise of any functions conferred on any (b) person by or under an enactment . 8.
+The processing is necessary for medical purposes and is undertaken by a health professional, or (a) (b) a person who in the circumstances owes a duty of confidentiality which is equivalent to that which would arise if that person were a health professional.
+It follows from those conditions that, prior to the entry into force of the 2014 Act, a data controller in Scotland of sensitive data can disclose information about the health or sexual life of a child or young person, without his or her explicit consent (assuming, in the case of a statutory body, that the disclosure is otherwise within its powers), if the disclosure is necessary in order to protect his or her vital interests (and not merely because it is likely to benefit her wellbeing) and, in addition, it is either impossible for him or her to give consent or the data controller cannot reasonably be expected to obtain it (condition 3).
+The information can also be disclosed if its disclosure is necessary for the exercise of a statutory function (condition 7(1)(b)), but not merely because the data controller considers that the information is likely be relevant to the exercise of that function.
+It can also be disclosed for medical purposes, but only where a duty of confidentiality is owed (condition 8): a requirement which gives rise to a difficulty (not discussed in this appeal) where disclosure is liable to be made under Part 4 of the 2014 Act, since sections 23(7) and 26(11) of the 2014 Act override duties of confidentiality.
+It is in addition necessary to comply with the other data protection principles, and with any requirements arising from Part II of Schedule 1.
+The effect of Part 4 of the 2014 Act on the requirements of the DPA is extremely complex.
+Numerous difficult questions are liable to arise, which were not discussed in detail, if at all, in the present appeal.
+A sufficient idea of the effect of Part 4 can, however, be obtained to enable the issue arising in relation to reserved matters to be determined.
+It may be helpful to explain at the outset that much of the difficulty arises from sections 23(7) and 26(11) of the 2014 Act, in terms of which sections 23 and 26 do not permit or authorise the provision of information in breach of a prohibition or restriction on its disclosure arising by virtue of an enactment or rule of law (other than in relation to a duty of confidentiality).
+This means that the powers and duties of disclosure set out in sections 23 and 26 cannot be taken at face value.
+To the extent that their terms may be inconsistent with the requirements of the DPA, they have no effect.
+The DPA itself, however, contains provisions which confer exemptions from some of its requirements where they are inconsistent with another enactment, or which treat some of its requirements as satisfied where disclosure is necessary for compliance with a statutory obligation.
+In these circumstances, it is necessary for anyone wanting to understand the effect of sections 23 and 26 on the disclosure of information to have the 2014 Act in one hand and the DPA in the other, to determine the priority which their provisions have vis vis one another notwithstanding the logical puzzle created by sections 23(7) and 26(11) of the 2014 Act when read with the DPA, and to try, by cross reference, to work out their cumulative effect.
+One potentially significant effect follows from section 35(1) of the DPA, in terms of which personal data are exempt from the non disclosure provisions where the disclosure is required by or under any enactment.
+A provision of an Act of the Scottish Parliament is an enactment for this purpose: section 70(1).
+The non disclosure provisions are defined by section 27(3) of the DPA as meaning the provisions specified in section 27(4) of that Act, to the extent to which they are inconsistent with the disclosure in question.
+Those provisions are the first data protection principle, except to the extent to which it requires compliance with the conditions in Schedules 2 and 3, the second, third, fourth and fifth data protection principles, section 10 (the right to prevent processing likely to cause damage or distress) and section 14(1) to (3) (the rectification, blocking, erasure and destruction of data).
+Sections 23(2), 26(1) and 26(3) of the 2014 Act require the disclosure of personal data, subject to sections 23(7) and 26(11).
+Accordingly, if those provisions are within devolved competence, and if the logical puzzle as to whether section 35(1) of the DPA prevails over sections 23(7) and 26(11) of the 2014 Act is resolved in favour of section 35(1) (a point which was not the subject of argument in this appeal, but was the implicit basis on which the arguments proceeded), then it follows that disclosure as required by sections 23 and 26 is exempt from the non disclosure provisions, as defined, to the extent that the non disclosure provisions are inconsistent with the disclosure.
+For example, the third data protection principle is inconsistent with the disclosure required by sections 23(2), 26(1) and 26(3) of the 2014 Act, since those provisions require disclosure of information which is considered by the data processor to be likely to be relevant, whereas the third principle requires any personal data disclosed to be relevant, as well as adequate and not excessive in relation to the purpose or purposes for which they are processed.
+On the other hand, the fifth principle (that data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes) is not inconsistent with sections 23 and 26 of the 2014 Act, and therefore continues to apply.
+The duties of disclosure imposed by sections 23 and 26 remain subject to numerous other provisions of the DPA, including the first data protection principle, to the extent to which it requires compliance with the conditions in Schedules 2 and 3.
+The power conferred by section 26(8) of the 2014 Act, on the other hand, does not require disclosure, and therefore cannot benefit from the exemption conferred by section 35(1) of the DPA.
+The discussion in this appeal focused on only one aspect of the complex inter relationship between Part 4 of the 2014 Act and the DPA, namely the question whether disclosure in accordance with the duties imposed by Part 4 of the 2014 Act would comply with the conditions imposed by Schedules 2 and 3 to the DPA.
+It was argued on behalf of the Ministers that conditions 3 and 5(b) in Schedule 2, and condition 7(1)(b) in Schedule 3, would be met.
+Condition 3 is satisfied where the processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.
+Condition 5(b) in Schedule 2, and condition 7(1)(b) in Schedule 3, are satisfied where the processing is necessary . for the exercise of any functions conferred on any person by or under any [or an] enactment.
+The imposition of a statutory duty of disclosure by sections 23(2), 26(1) and 26(3) of the 2014 Act has the consequence that condition 3 in Schedule 2 to the DPA is satisfied.
+The terms in which that duty is imposed do not, on the other hand, meet the requirements of condition 5(b) in Schedule 2 and condition 7(1)(b) in Schedule 3.
+In each case, the data controller is required by the 2014 Act to disclose personal data to a third party if he considers that the data are likely to be relevant to the exercise of certain statutory functions by the third party and ought to be provided for that purpose.
+The test imposed by condition 5(b) in Schedule 2 and condition 7(1)(b) in Schedule 3 to the DPA requires that disclosure must be necessary for the exercise of statutory functions (which must again refer to the functions of the person to whom the disclosure is made, given that section 35(1), read with section 27, requires that a data processor who is under a statutory duty to make the disclosure must comply with Schedules 2 and 3: a requirement which would be pointless if it were met ex hypothesi).
+The meaning of necessary was considered by this court in South Lanarkshire Council v Scottish Information Comr [2013] UKSC 55; 2014 SC (UKSC) 1; [2013] 1 WLR 2421.
+As was explained there at paras 25 27, it is an expression whose meaning depends on the context in which it falls to be applied.
+Where the disclosure of information constitutes an interference with rights protected by article 8 of the ECHR, as in the present context (as explained at paras 75 77 below), the requirement that disclosure is necessary forms part of a proportionality test: the disclosure must involve the least interference with the right to respect for private and family life which is required for the achievement of the legitimate aim pursued.
+Disclosure where the data processor considers that the information is likely to be relevant cannot be regarded as necessary if the legitimate aim could be achieved by something less.
+It cannot be necessary, in that sense, to disclose information merely on the ground that it is objectively relevant, let alone on the ground that a particular body considers that it is likely to be relevant.
+Relevance is a relatively low threshold: information may be relevant but of little significance.
+A test of potential relevance fails to recognise the need to weigh the importance of the disclosure in achieving a legitimate aim against the importance of the interference with the individuals right to respect for her private and family life.
+That deficiency is not made good by the requirement that the data controller considers that the information ought to be provided.
+It will be necessary to return to the question of proportionality when we consider the challenge to the legislation under article 8.
+So far as the power conferred by section 26(8) is concerned, a data controller may disclose information to a third party if he considers that to do so is necessary or expedient for the purpose of the exercise of any of the named person functions.
+Those conditions are less demanding than any of the conditions in Schedules 2 and 3 to the DPA that are relied on by the Ministers.
+Condition 3 in Schedule 2 is not satisfied, since the disclosure does not have to be necessary for compliance with any legal obligation imposed on the data controller.
+Condition 5(b) in Schedule 2, and condition 7(1)(b) in Schedule 3, are not satisfied, since the processing does not have to be necessary for the exercise of any of the named person functions.
+Nor is the third data protection principle met, since there is no requirement that the information should be relevant.
+The first data protection principle is therefore complied with, in so far as the duties of disclosure imposed by Part 4 of the 2014 Act apply to non sensitive data, but not in so far as they apply to sensitive data or in so far as Part 4 confers a power to disclose information rather than imposing a duty.
+Sections 23(7) and 26(11) therefore apply, with the consequence that the duties imposed by sections 23(2), 26(1) and 26(3) in respect of sensitive data, and the power conferred by section 26(8) in respect of data of all kinds, cannot be taken at face value.
+Instead, the duties imposed by sections 23(2), 26(1) and 26(3) in respect of sensitive data must be understood as being conditional upon compliance with at least one of the conditions in Schedule 3 to the DPA, and therefore as being subject to more stringent criteria than those which appear on the face of the 2014 Act.
+The power conferred by section 26(8) must likewise be understood as being conditional upon compliance with at least one of the conditions in Schedule 2 to the DPA, and also, if the information in question is sensitive data, upon compliance with at least one of the conditions in Schedule 3.
+In addition, it is subject to compliance with the requirements arising in relation to the first data protection principle under Part II of Schedule 1 to the DPA, and also to compliance with the other data protection principles and the other duties imposed by the DPA.
+The effect of Part 4 of the 2014 Act in relation to the Directive
+As explained earlier, the Directive requires member states to establish a number of principles relating to the processing of data, which find their counterpart in the data protection principles laid down in the DPA.
+The principles set out in the Directive are complex and raise numerous issues of interpretation, like their UK counterparts.
+For present purposes, it is sufficient to focus on the provisions corresponding to Schedules 2 and 3 to the DPA.
+As explained earlier, article 7 sets out six general criteria which member states must apply to the processing of personal data, so that at least one of the criteria is satisfied.
+The criteria which the Ministers maintain are satisfied by the terms of Part 4 of the 2014 Act are the following: (c) processing is necessary for compliance with a legal obligation to which the controller is subject; or . (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the data are disclosed.
+These criteria are almost identical to those set out in conditions 3 and 5(b) in Schedule 2 to the DPA.
+For the reasons explained earlier, sections 23(2), 26(1) and 26(3) meet the requirements of criterion (c), but section 26(8) does not meet the requirements of any of the criteria.
+As explained earlier, article 8(2) permits specified exemptions from the general prohibition imposed by article 8(1) on the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, and the processing of data concerning health or sex life.
+The exemptions, so far as potentially relevant, are as follows: (a) the data subject has given his explicit consent to the processing of those data, except where the laws of the member state provide that the prohibition referred to in paragraph 1 may not be lifted by the data subjects giving his consent; or . (c) processing is necessary to protect the vital interests of the data subject or of another person where the data subject is physically or legally incapable of giving his consent.
+Article 8(3) disapplies the prohibition in article 8(1) where processing of the data is required for the purposes of preventive medicine, medical diagnosis, the provision of care or treatment or the management of health care services, and where those data are processed by a health professional subject . to the obligation of professional secrecy or by another person also subject to an equivalent obligation of secrecy.
+Article 8(4) of the Directive permits member states to lay down additional exemptions for reasons of substantial public interest, subject to the provision of suitable safeguards.
+Any such additional exemptions must be notified to the Commission.
+Sections 23(2) and 26(1), (3) and (8) of the 2014 Act do not meet the requirements of the exemptions in article 8(2).
+The provisions of Part 4 of the 2014 Act have not been notified to the Commission, and it is not suggested that there has been any other relevant notification.
+Nor has it been argued that the provisions of Part 4 would meet the other requirements of article 8(4).
+It follows for this reason also that, applying sections 23(7) and 26(11), sections 23 and 26 cannot be taken at face value.
+The performance of the powers and duties created by those provisions, in respect of data falling within the scope of article 8, must be understood as being permissible only where either one of the exemptions listed in article 8(2) applies, or the processing falls within the scope of article 8(3).
+Discussion
+Does it follow, for the purposes of Section B2 of Schedule 5 to the Scotland Act, that any of the provisions of Part 4 of the 2014 Act relate to the subject matter of the DPA and the Directive? The fact that a provision of an Act of the Scottish Parliament requires or authorises the disclosure of personal data does not in itself mean that the provision is outside legislative competence: as explained earlier, the DPA envisages in section 35(1), read with section 70(1), that the disclosure of personal data may be required by an enactment comprised in an Act of the Scottish Parliament.
+In view of that provision, the Scotland Act cannot sensibly be interpreted as meaning that an enactment relates to the subject matter of the DPA, and is therefore outside the powers of the Scottish Parliament, merely because it requires or authorises the disclosure of personal data.
+On the other hand, an enactment does not have to modify the DPA in order to relate to the subject matter of that Act.
+That follows from the distinction between section 29(2)(b) and (c) of the Scotland Act.
+The question whether an enactment relates to the subject matter of the DPA and the Directive has to be decided by following the approach described in paras 29 to 31 above.
+Following that approach, it was argued on behalf of the Ministers that the purpose of Part 4 is to promote the wellbeing of children and young people, and that the provisions concerning the processing of personal data are merely consequential upon, or incidental to, that purpose.
+It is true that the ultimate aim of Part 4 is to promote the wellbeing of children and young people.
+Its more specific objective is to alter the institutional arrangements, and the legal structure of powers and duties, governing cooperation between the different agencies which deal with children and young people, so that they work collaboratively, with the named person playing a coordinating role.
+That objective reflects the concern, noted in the background material to the 2014 Act, that a weakness in the existing arrangements was that information was not shared until the stage had been reached where a child or young person was at risk of harm.
+Part 4 is designed to address that concern by ensuring that information is shared between the relevant agencies, and acted on where appropriate, before that stage is reached.
+Accordingly, although Part 4 contains provisions whose objective is to ensure that information relating to children and young people is shared, that objective is not truly distinct from the overall purpose of promoting their wellbeing, but can be regarded as consequential upon it.
+It is also important to bear in mind the central aim of the provisions in the Scotland Act concerning reserved matters, explained at para 28 above: that matters in which the UK as a whole has an interest should continue to be the responsibility of the UK Parliament.
+As explained at para 44 above, the DPA deals with matters in which the UK as a whole has an interest, because it implements the Directive, in accordance with the UKs treaty obligations, by establishing standards of protection of individuals interests in relation to the use of their personal data, and methods by which those standards are to be secured and enforced, which are equivalent in effect throughout the UK.
+But it also, in section 35 and elsewhere, leaves scope for derogation from certain of its requirements by the UK Parliament and by the Scottish Parliament.
+To the extent that Part 4 of the 2014 Act affects the way in which the data protection regime under the DPA applies to matters falling within its scope, that possibility is contemplated by the DPA itself, in section 35.
+Part 4 does not detract from the regime established by the DPA and the Directive, even if that is only by reason of the fail safe provisions of sections 23(7) and 26(11).
+For these reasons, we are not persuaded that the provisions of Part 4 relate to the subject matter of the DPA and the Directive.
+The appellants challenge the compulsory appointment of a named person as a breach of the rights of the parents of children under article 8 of the ECHR.
+Article 8 provides: The human rights challenge 1.
+Everyone has the right to respect for his private and family life, his home and his correspondence. 2.
+There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
+The appellants challenge proceeds on both a broad basis and a narrower basis.
+The broad challenge is that the compulsory appointment of a named person to a child involves a breach of the parents article 8 rights unless the parents have consented to the appointment or the appointment is necessary to protect the child from significant harm.
+The narrower challenge focusses on the provisions in sections 26 and 27 for the sharing of information about a child.
+Before the Inner House, the appellants narrower challenge, as recorded by the Lord Justice Clerk, raised article 8 of the ECHR but concentrated on EU law.
+That was also the appellants focus in this court.
+The intervener, Community Law Advice Network, challenges only the information sharing provisions, arguing that they impose too low a threshold for the disclosure of confidential information and amount to an infringement of the article 8 rights of children and young people.
+As a result there was more focus on article 8 of the ECHR in the narrower challenge than there had been in the debates both in the Inner House and before the Lord Ordinary.
+In our view these challenges raise the following four questions: (i) what are the interests which article 8 of ECHR protects in this context, (ii) whether and in what respects the operation of the Act interferes with the article 8 rights of parents or of children and young people, (iii) whether that interference is in accordance with the law, and (iv) whether that interference is proportionate, having regard to the legitimate aim pursued.
+(i) The interests protected by article 8
+In the context of this legislation, the interests protected by article 8 include both family life and privacy.
+The relationship between parent and child is an integral part of family life.
+As the European Court of Human Rights (ECtHR) stated in, among others, Olsson v Sweden (No 1) (1988) 11 EHRR 259, [t]he mutual enjoyment by parent and child of each others company constitutes a fundamental element of family life (para 59).
+Family life also encompasses a broad range of parental rights and responsibilities with regard to the care and upbringing of minor children, enabling parents to take important decisions on their behalf, and article 8 protects the rights of parents to exercise such parental authority: Nielsen v Denmark (1988) 11 EHRR 175, para 61.
+As is well known, it is proper to look to international instruments, such as the UN Convention on the Rights of the Child 1989 (UNCRC), as aids to the interpretation of the ECHR.
+The Preamble to the UNCRC states: the family, as the fundamental group of society and the natural environment for the growth and wellbeing of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community.
+Many articles in the UNCRC acknowledge that it is the right and responsibility of parents to bring up their children.
+Thus article 3(2) requires States Parties, in their actions to protect a childs wellbeing, to take into account the rights and duties of his or her parents or other individuals legally responsible for him or her; article 5 requires States Parties to respect the responsibilities, rights and duties of parents or, where applicable, other family or community members or others legally responsible for the child to provide appropriate direction and guidance to the child in the exercise of his or her rights under the Convention; article 14(2) makes similar provision in relation to the childs right to freedom of thought, conscience and religion; article 27(2) emphasises that the parents have the primary responsibility to secure, within their abilities and financial capabilities, the conditions of living necessary for the childs development; article 18(1) provides that: States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child.
+Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child.
+The best interests of the child will be their basic concern. (Emphasis supplied) Articles 27(3) and 18(2) make it clear that the states role is to assist the parents in carrying out their responsibilities, although article 19(1) requires the state also to take appropriate measures to protect the child from all forms of abuse or neglect.
+This represents the detailed working out, for children, of the principle established in article 16(3) of the Universal Declaration of Human Rights and article 23(1) of the International Covenant on Civil and Political Rights that the family is the natural and fundamental group unit of society and is entitled to protection by society and the state.
+There is an inextricable link between the protection of the family and the protection of fundamental freedoms in liberal democracies.
+The noble concept in article 1 of the Universal Declaration, that all human beings are born free and equal in dignity and rights is premised on difference.
+If we were all the same, we would not need to guarantee that individual differences should be respected.
+Justice Barak of the Supreme Court of Israel has put it like this (in El Al Israeli Airlines Ltd v Danielowitz [1992 4] IsrLR 478, para 14): The factual premise is that people are different from one another, no person is completely identical to another Every person is a world in himself.
+Society is based on people who are different from one another.
+Only the worst dictatorships try to eradicate these differences.
+Individual differences are the product of the interplay between the individual person and his upbringing and environment.
+Different upbringings produce different people.
+The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers view of the world.
+Within limits, families must be left to bring up their children in their own way.
+As Justice McReynolds, delivering the Opinion of the Supreme Court of the United States famously put it in Pierce v Society of Sisters 268 US 510 (1925), 534 535: The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.
+The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.
+Thus it is not surprising that the ECtHR, in Neulinger and Shuruk v Switzerland (2012) 54 EHRR 31, interpreted article 8 in the context, among other instruments, of the UNCRC and explained the concept of the childs best interests in this way: The childs interest comprises two limbs.
+On the one hand, it dictates that the childs ties with its family must be maintained, except in cases where the family has proved particularly unfit.
+It follows that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to rebuild the family (see Gnahor, cited above, para 59).
+On the other hand, it is clearly also in the childs interest to ensure its development in a sound environment, and a parent cannot be entitled under article 8 to have such measures taken as would harm the childs health and development (see, among many other authorities, Elsholz v Germany (2002) 34 EHRR 58 at [50], and Marlek v the Czech Republic, no 8153/04, at [71], 4 April 2006). (para 136)
+The privacy of a child or young person is also an important interest.
+Article 16 of the UNCRC provides: 1.
+No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation. 2.
+The child has the right to the protection of the law against such interference or attacks.
+The concept of private life in article 8 covers the disclosure of personal data, such as information about a persons health, criminal offending, sexual activities or other personal matters.
+The notion of personal autonomy is an important principle underlying the guarantees of the ECHR.
+See, for example, Gillan v United Kingdom (2010) 50 EHRR 1105, para 61.
+Article 8 protects confidential information as an aspect of human autonomy and dignity: Campbell v MGN Ltd [2004] 2 AC 457, Lord Hoffmann paras 50 51, Lady Hale para 134.
+Thus in Z v Finland (1998) 25 EHRR 371, para 95, a case concerning the disclosure by a court of a persons identity and medical data, the ECtHR stated: the protection of personal data, not least medical data, is of fundamental importance to a persons enjoyment of his or her right to respect for private and family life as guaranteed by article 8 of the Convention.
+Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention.
+It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general.
+Without such protection, those in need of medical assistance may be deterred from revealing such information of a personal and intimate nature as may be necessary in order to receive appropriate treatment and, even, from seeking such assistance, thereby endangering their own health and, in the case of transmissible diseases, that of the community.
+The domestic law must therefore afford appropriate safeguards to prevent any such communication or disclosure of personal health data as may be inconsistent with the guarantees in article 8 of the Convention. (para 95)
+More recently, in a case concerning a complaint that a hospital had failed to guarantee the security of a persons data against unauthorised access, the ECtHR repeated that statement and again confirmed that the processing of information relating to an individuals private life comes within the scope of article 8 and that personal information relating to a patient undoubtedly belongs to his or her private life: I v Finland (2009) 48 EHRR 740, paras 35 38.
+Similarly, the Court of Justice of the European Union in X v Commission [1994] ECR I 4347 has opined (para 17) that the right to respect for private life, embodied in article 8, includes in particular a persons right to keep his state of health secret.
+(ii) Whether Part 4 of the 2014 Act interferes with article 8 rights
+The provisions of Part 4 of the 2014 Act by which the state may intervene in family life and private life engage article 8.
+But, while article 8 is engaged, not all that may be done under Part 4 would involve an interference with a persons article 8 rights.
+There are elements of the role of the named person which are unlikely, by themselves, to involve any interference with the right of a parent, child or young person to respect for his or her private and family life.
+Thus, by themselves, the functions in section 19(5)(a)(i) and (ii) of providing advice, information and support and helping the parent, child or young person to access a service or support would not normally constitute an interference with the article 8 rights of either the child or his or her parents.
+But it is clear from the consultation paper, A Scotland for Children and the Policy Memorandum, which we discussed in paras 1 to 3 above, that the sharing of personal data between relevant public authorities is central to the role of the named person.
+As we have explained, this may well constitute an interference with the article 8 rights of those to whom the information relates.
+We are therefore satisfied that the operation of the information sharing provisions of Part 4 (in particular, sections 23, 26 and 27) will result in interferences with rights protected by article 8 of the ECHR.
+The question therefore arises whether such interferences can be justified under article 8(2).
+(iii) In accordance with the law
+In order to be in accordance with the law under article 8(2), the measure must not only have some basis in domestic law which it has in the provisions of the Act of the Scottish Parliament but also be accessible to the person concerned and foreseeable as to its effects.
+These qualitative requirements of accessibility and foreseeability have two elements.
+First, a rule must be formulated with sufficient precision to enable any individual if need be with appropriate advice to regulate his or her conduct: Sunday Times v United Kingdom (1979) 2 EHRR 245, para 49; Gillan v United Kingdom (2010) 50 EHRR 1105, para 76.
+Secondly, it must be sufficiently precise to give legal protection against arbitrariness: it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention.
+In matters affecting fundamental rights it would be contrary to the rule of law for a legal discretion granted to the executive to be expressed in terms of an unfettered power.
+Consequently, the law must indicate with sufficient clarity the scope of any discretion conferred on the competent authorities and the manner of its exercise.
+The level of precision required of domestic legislation which cannot in any case provide for every eventuality depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed.
+Gillan v United Kingdom, para 77; Peruzzo v Germany (2013) 57 EHRR SE 17, para 35.
+Recently, in R (T) v Chief Constable of Greater Manchester Police [2015] AC 49 this court has explained that the obligation to give protection against arbitrary interference requires that there must be safeguards which have the effect of enabling the proportionality of the interference to be adequately examined.
+This is an issue of the rule of law and is not a matter on which national authorities are given a margin of appreciation.
+In deciding whether there is sufficient foreseeability to allow a person to regulate his or her conduct and sufficient safeguards against arbitrary interference with fundamental rights, the court can look not only at formal legislation but also at published official guidance and codes of conduct: Silver v United Kingdom (1983) 5 EHRR 347 (paras 88 90); Gillan v United Kingdom (paras 35, 36 and 78) and MM v United Kingdom (Application no 24029/07).
+In R (Roberts) v Comr of Police of the Metropolis [2015] UKSC 79; [2016] 1 WLR 210 this court took into account as constraints on the power of the police to stop and search not only the limits on that power in section 60 of the Criminal Justice and Public Order Act 1994 and the legal protection provided by both section 6 of the Human Rights Act 1998 and the Equality Act 2010, but also the requirements of the Metropolitan Polices Standard Operating Procedures.
+That statutory document, which was published on the Metropolitan Polices website, regulated the authorisation of stop and search, the operation and also the individual encounter between a police officer and a member of the public on the street.
+In relation to the exercise on the street of the stop and search power it not only gave officers detailed instructions, which were designed to ensure their proportionate use of such power, but also required them to explain to the individual who was to be searched the reason for the search, to record that reason in writing and make available to the affected individual a copy of that written record.
+These provided adequate safeguards to enable the courts to examine the proportionality of any interference with fundamental rights: see the judgment of Lady Hale and Lord Reed at paras 43 48.
+Thus in assessing whether Part 4 of the 2014 Act is in accordance with the law this court has been invited to take into account not only the terms of the Act but also, proleptically, the RDSG, which we have discussed in paras 18 to 25 above.
+As we have stated (in para 18 above), the RDSG is directed to specified public authorities, which under section 28(1) of the Act are required to have regard to it.
+In contrast with, for example, the Metropolitan Polices Standard Operating Procedures which we have mentioned, there is no compulsion to follow the guidance.
+The RDSG gives very little guidance as to the requirements of the DPA or article 8 of the ECHR but envisages that separate practice materials will be made available to practitioners.
+As we explained in paras 52 to 62 above when we discussed the effect of the Act in relation to the DPA and the Directive, the powers and duties of disclosure set out in sections 23 and 26 cannot be taken at face value.
+In several crucial respects, the scope of the duties and powers to disclose or share information set out on the face of the Act are, in reality, significantly curtailed by the requirements of the DPA and the Directive.
+To recap: (1) Although section 23(2)(b) purports to impose on the outgoing service provider a duty to provide the incoming service provider with all information which it holds which falls within subsection (3), in reality no such duty exists in relation to sensitive data as defined in the DPA, unless at least one of the conditions set out in Schedule 3 to the DPA is satisfied (the conditions set out in section 23(3) (6) of the 2014 Act not in themselves ensuring their satisfaction). (2) Although section 26(1) purports to impose on a service provider or relevant authority (or any person exercising a function on their behalf) a duty to provide to the service provider in relation to a child or young person any information which the person holds which falls within subsection (2), in reality no such duty exists in relation to sensitive data as defined in the DPA, unless at least one of the conditions set out in Schedule 3 to the DPA is satisfied (the conditions set out in section 26(2) and (5) (7) of the 2014 Act not in themselves ensuring their satisfaction). (3) Although section 26(3) purports to impose on the service provider in relation to a child or young person a duty to provide to a service provider or relevant authority (or any person exercising a function on their behalf) any information which the person holds which falls within subsection (4), in reality no such duty exists in relation to sensitive data as defined in the DPA, unless at least one of the conditions set out in Schedule 3 to the DPA is satisfied (the conditions set out in section 26(4) and (5) (7) of the 2014 Act not in themselves ensuring their satisfaction). (4) Although section 26(8) purports to confer on the service provider in relation to a child or young person the power to provide to a service provider or relevant authority (or any person exercising a function on their behalf) any information which the person holds which falls within subsection (9), in reality no such power can lawfully be exercised unless the requirements of the DPA are satisfied (the condition set out in section 26(9) of the 2014 Act not in itself ensuring their satisfaction).
+Those requirements include, but are not limited to, compliance with at least one of the conditions in Schedule 2 to the DPA, and also, if the information in question is sensitive data, compliance with at least one of the conditions in Schedule 3.
+They also include compliance with the requirements arising in relation to the first data principle under Part II of Schedule 1 to the DPA, and also the other data protection principles and the other duties imposed by the DPA.
+That is not a comprehensive account of the requirements imposed by the DPA: as explained above, those requirements were not fully discussed at the hearing of the appeal.
+The relationship between the Act and the DPA is rendered particularly obscure by what we have described as the logical puzzle arising from sections 23(7) and 26(11) when read with section 35(1) of the DPA.
+It is also necessary to ensure that the requirements of articles 7 and 8 of the Directive are met, so far as information falls within its scope.
+There are thus very serious difficulties in accessing the relevant legal rules when one has to read together and cross refer between Part 4 of the Act and the DPA and work out the relative priority of their provisions.
+Of even greater concern is the lack of safeguards which would enable the proportionality of an interference with article 8 rights to be adequately examined.
+Section 26(5) requires an information holder, when considering whether information ought to be provided in the exercise of the duties in section 26(1) or (3), so far as reasonably practicable to ascertain and have regard to the views of the child or young person.
+But there is no such requirement in relation to a service providers discretionary power to share information under section 26(8).
+There the test is merely that the provision of the information is necessary or expedient for the purposes of the exercise of any of the named person functions.
+Moreover, there is no statutory requirement, qualified or otherwise, to inform the parents of a child about the sharing of information.
+The RDSG is only guidance, speaks of routine good practice, and leaves it to the discretion of the information holder whether to involve the parent or parents.
+It is thus perfectly possible that information, including confidential information concerning a child or young persons state of health (for example, as to contraception, pregnancy or sexually transmitted disease), could be disclosed under section 26 to a wide range of public authorities without either the child or young person or her parents being aware of the interference with their article 8 rights, and in circumstances in which there was no objectively compelling reason for the failure to ascertain and have regard to their views.
+While para 10.14.2 of the RDSG advises that a record should be kept of the rationale behind a decision to share information, such a record will not assist a child, young person or parent who is not informed that the information is to be or has been shared.
+We conclude therefore that the information sharing provisions of Part 4 of the Act and the RDSG as currently drafted do not meet the article 8 criterion of being in accordance with the law.
+(iv) Whether the interference is proportionate
+The fourth question is whether Part 4 of the Act, when considered along with section 6 of the Human Rights Act 1998, the DPA and the RDSG, will give rise to interferences with the article 8 rights of children, young persons or parents which are proportionate, having regard to the legitimate aim pursued.
+In assessing proportionality it is necessary to distinguish between the Act itself and its operation in individual cases.
+The Act gives the named person three principal functions in section 19(5).
+As we have said (para 78 above), the first two would not normally constitute an interference with the right to respect for private or family life.
+The third, which itself involves the sharing of information, may more readily do so.
+The information sharing provisions in sections 23, 26 and 27 are, as we have said, limited by the DPA, particularly in relation to the disclosure of sensitive personal data.
+Separately, the operation of the Act in individual cases will involve the exercise of powers in many different circumstances which may entail more or less serious interferences with private and family life and which may provide stronger or weaker justification for such interference.
+This court has explained that an ab ante challenge to the validity of legislation on the basis of a lack of proportionality faces a high hurdle: if a legislative provision is capable of being operated in a manner which is compatible with Convention rights in that it will not give rise to an unjustified interference with article 8 rights in all or almost all cases, the legislation itself will not be incompatible with Convention rights: R (Bibi) v Secretary of State for the Home Department [2015] UKSC 68; [2015] 1 WLR 5055, paras 2 and 60 per Lady Hale, para 69 per Lord Hodge.
+The proportionality challenge in this case does not surmount that hurdle.
+Nonetheless, it can readily be foreseen that in practice the sharing and exchange of information between public authorities are likely to give rise to disproportionate interferences with article 8 rights, unless the information holder carries out a scrupulous and informed assessment of proportionality.
+In their submissions, the Ministers treated the promotion of childrens wellbeing as being in itself a legitimate aim under article 8.
+They relied on international instruments in which the term wellbeing is used, although possibly not in quite as wide a sense as in the 2014 Act.
+For example, article 3(2) of the UNCRC provides: States Parties undertake to ensure the child such protection and care as is necessary for his or her wellbeing, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
+Similarly, article 24(1) of the EU Charter of Fundamental Rights (CFR) provides: Children shall have the right to such protection and care as is necessary for their wellbeing The promotion of the wellbeing of children and young people is not, however, one of the aims listed in article 8(2) of the ECHR.
+At the most general level, it can be said to be linked to the economic wellbeing of the country, as the Ministers submissions emphasised.
+The extent to which an individual intervention is likely to promote the achievement of such a general aim is however very limited.
+Individual interventions may make a greater contribution towards achieving other legitimate aims, such as the prevention of disorder or crime, or the protection of health or morals, depending on the circumstances.
+However, the more tenuous the link between the objective pursued by the intervention (eg that a child or young person should be achieving, nurtured, active, respected, responsible and included) and the achievement of one of the legitimate aims listed in article 8(2), the more difficult it will be to justify a significant interference with the individuals private and family life.
+For example, if (contrary to our view) the 2014 Act as currently enacted had enabled the disclosure of sensitive personal data without the consent of the affected party, the disclosure by health professionals of information that a young person was being prescribed contraceptives or had contracted a sexually transmitted disease would be a major interference with private life which could only be justified on very compelling grounds.
+questions when it considers the question of proportionality: It is now the standard approach of this court to address the following four (i) whether the objective is sufficiently important to justify the limitation of a protected right, (ii) whether the measure is rationally connected to the objective, (iii) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (iv) whether, balancing the severity of the measures effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter (ie whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure).
+See Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167, para 19 per Lord Bingham of Cornhill; R (Aguilar Quila) v Secretary of State for the Home Department [2011] UKSC 45; [2012] 1 AC 621, para 45 per Lord Wilson; Bank Mellat v HM Treasury (No 2) [2013] UKSC 39; [2014] AC 700, para 74 per Lord Reed; and R (Bibi) v Secretary of State for the Home Department [2015] UKSC 68; [2015] 1 WLR 5055, para 29 per Lady Hale.
+As to the first of those questions, it can be accepted, focusing on the legislation itself rather than on individual cases dealt with under the legislation, that Part 4 of the 2014 Act pursues legitimate aims.
+The public interest in the flourishing of children is obvious.
+The aim of the Act, which is unquestionably legitimate and benign, is the promotion and safeguarding of the wellbeing of children and young persons.
+As the Dean of Faculty submitted, the policy of promoting better outcomes for individual children and families is not inconsistent with the primary responsibility of parents to promote the wellbeing of their children.
+Improving access to, and the coordination of, public services which can assist the promotion of a childs wellbeing are legitimate objectives which are sufficiently important to justify some limitation on the right to respect for private and family life.
+Secondly, Part 4 of the Act is rationally connected to the legitimate aims pursued.
+As the Scottish Governments consultation paper, A Scotland for Children showed, the aims of the legislation are to move public bodies with responsibility for children towards early intervention to promote childrens wellbeing rather than only responding to a serious occurrence and to ensure that those public bodies collaborated and shared relevant information concerning the wellbeing of individual children.
+As the Second Division stated (para 63), the named person is at the heart of the Scottish Governments proposals.
+That person is tasked with advising on the wellbeing of a child, helping a child or parent to access a service or support, and being the single point of contact for public services in relation to the child in order to promote, support or safeguard the childs wellbeing.
+The third question (whether a less intrusive measure could have been used) does not involve a court in identifying the alternative legislative measure which was least intrusive.
+The court allows the legislature a margin of discretion and asks whether the limitation on the fundamental right is one which it was reasonable for the legislature to impose: Bank Mellat v HM Treasury (No 2), para 75.
+If, as the appellants submitted in their broader challenge, a named person should be appointed in relation to a child only if the parents consented or, absent such consent, if the appointment was necessary to protect the welfare of a child who was at risk of harm, the scope for early intervention to resolve problems and for the coordination of public services in support of a childs wellbeing would be diminished.
+Separate questions will arise as to whether, in an individual case, early intervention and coordination of services could be achieved by less intrusive means.
+That issue can be considered under the final question of fair balance.
+The fourth question is whether the impact of the rights infringement may be disproportionate to the likely benefit of the impugned measure.
+This requires consideration of the operation of Part 4 of the Act in particular cases, since it cannot be said that its operation will necessarily give rise to disproportionate interferences in all cases.
+In that regard, the named persons functions to give advice, information and support (section 19(5)(a)(i)) and to help the child, young person or parent to access a service or support (section 19(5)(a)(ii)) are, as we have said, less likely to give rise to any question of disproportion in a particular case.
+The provision of access to services could involve the creation of a childs plan under Part 5 of the Act, but that involves no compulsion.
+The Act does not alter the statutory criteria of any compulsory measures in relation to children and young people.
+Thus the criteria for making a child assessment order in section 36(2) or a child protection order in sections 38 and 39 of the Childrens Hearings (Scotland) Act 2011 require (put shortly) reasonable grounds to suspect that the child is likely to suffer significant harm.
+The long list of grounds upon which a child may come before a childrens hearing with a view to making a compulsory supervision order (which can include taking the child away from home) in section 67 of that Act remain focused upon the risk of harm to the child or the childs own misconduct.
+Nevertheless, there must be a risk that, in an individual case, parents will be given the impression that they must accept the advice or services which they are offered, especially in pursuance of a childs plan for targeted intervention under Part 5; and further, that their failure to co operate with such a plan will be taken to be evidence of a risk of harm.
+An assertion of such compulsion, whether express or implied, and an assessment of non cooperation as evidence of such a risk could well amount to an interference with the right to respect for family life which would require justification under article 8(2).
+Given the very wide scope of the concept of wellbeing and the SHANARRI factors, this might be difficult.
+Care should therefore be taken to emphasise the voluntary nature of the advice, information, support and help which are offered under section 19(5)(a)(i) and (ii) and the Guidance should make this clear.
+The function, in section 19(5)(a)(iii), of discussing or raising a matter about a child or young person with a service provider or relevant authority, involves the disclosure of information.
+It and the information sharing provisions in sections 23, 26 and 27 raise difficult questions of proportionality in particular cases, where the information holder, when considering whether the information ought to be provided (section 26(2)(b) and (4)(b)) or whether to provide information under section 26(8), will have to consider carefully whether the particular circumstances justify the disclosure of the particular information.
+In our view, given this role of the information holder, it cannot be said that the operation of the information sharing duties and powers in relation to any of the named persons functions will necessarily amount to a disproportionate interference with article 8 rights.
+But for the problem in relation to the requirement that the Act be in accordance with the law (paras 79 85 above), we consider that the Act would be capable of being operated in a manner which is compatible with the Convention rights.
+But the task facing the information holder is a daunting one because the Act does not address the factors to be considered in an assessment of proportionality and the RDSG gives exiguous guidance on that issue.
+The provisions of the Act appear to point toward a more relaxed approach to disclosure than is compatible with article 8.
+Section 26(1) and (3) oblige the information holder to provide information which meets the criteria set out in subsections (2) and (4).
+Those criteria include an assessment of whether the information is likely to be relevant to the exercise of functions which may affect the wellbeing of the child or young person.
+In turn, the assessment of that wellbeing under section 96, as explained by the RDSG, involves the use of very broad criteria which could trigger the sharing of information by a wide range of public bodies (as to which see para 5 above) and also the initiation of intrusive inquiries into a childs wellbeing.
+In our view, the criteria in sections 23(3), 26(2) and 26(4) by themselves create too low a threshold for disclosure (as explained at para 56 above), and for the overriding of duties of confidentiality in relation to sensitive personal information.
+Under sections 23(4) and 26(5) the information holder, when deciding whether information ought to be provided under sections 23(2) and 26(1) or (3), is obliged so far as is reasonably practicable to ascertain and have regard to the views of the child or young person.
+But those provisions do not require that persons consent, or require that there be any good reason for dispensing with her consent, before what may be highly personal information, imparted in confidence, is shared.
+Further, the information holder is under no obligation to ascertain the views of the child or young person, or her parents, when exercising a discretion under section 26(8), in which the test is whether the provision of the information is considered to be necessary or expedient for the purposes of the exercise of any of the named person functions.
+Thus the exercise of the section 26(8) power could involve the overriding of duties of confidentiality without any obligation even to consult the child, young person or parent.
+The RDSG (at paras 4.1.28 and 10.7.4) presents such consultation as good practice but it is not obligatory, even on a qualified basis.
+Further, there is no provision imposing even a qualified requirement that the child or young person or her parents be warned that confidential information may be disclosed, or informed after the event that it has been shared.
+In many circumstances the Acts intended overriding of the duty of confidentiality may not be achieved.
+In our discussion of reserved matters (paras 27 to 66 above) we showed that, because of the terms of sections 23(7) and 26(11), the DPA and the Directive impose significant restrictions on the ability of public authorities in the performance of their duties under sections 23(2), 26(1) and (3) to share information which is sensitive personal data, such as information about a persons health or sexual life, without the explicit consent of the data subject.
+We showed that, for the same reasons, the power under section 26(8) to share information remains subject to all of the restrictions of the DPA against disclosure, thus normally requiring consent of the data subject, in relation also to non sensitive personal data.
+Thus some of the concerns of the appellants and the interveners in relation to the criteria for the sharing of information are, on a proper interpretation of the legislation, addressed by the continued operation of the DPA and the Directive, which in many cases will require the consent of the data subject to the sharing of the information.
+Nonetheless, there may be information which is not sensitive personal data which is nonetheless confidential.
+Even with the restrictions of the DPA, the Act does not point towards a fair balance in relation to the disclosure of such confidential information in the performance of duties under sections 23(2), 26(1) and 26(3).
+The central problems are the lack of any requirement to obtain the consent of the child, young person, or his or her parents to the disclosure, the lack of any requirement to inform them about the possibility of such disclosure at the time when the information is obtained from them, and the lack of any requirement to inform them about such disclosure after it has taken place.
+Such requirements cannot, of course, be absolute: reasonable exceptions can be made where, for example, the child is unable to give consent, or the circumstances are such that it would be inappropriate for the parents consent to be sought, or the childs best interests might be harmed.
+But, without such safeguards, the overriding of confidentiality is likely often to be disproportionate.
+In order to reduce the risk of disproportionate interferences, there is a need for guidance to the information holder on the assessment of proportionality when considering whether information should be provided.
+In particular, there is a need for guidance on (a) the circumstances in which consent should be obtained, (b) those in which such consent can be dispensed with and (c) whether, if consent is not to be obtained, the affected parties should be informed of the disclosure either before or after it has occurred.
+Also relevant is whether the recipient of the information is subject to sufficient safeguards to prevent abuse: MS v Sweden (1997) 28 EHRR 313.
+Further, if the guidance is to operate as law for the purposes of article 8, the information holder should be required to do more than merely have regard to it.
+III The EU Law challenge
+The appellants also challenge the information sharing provisions of sections 26 and 27 of the Act on the ground that they are incompatible with EU law.
+Counsel referred to the following articles of the CFR: article 7 (respect for private and family life), article 8 (protection of personal data), article 14 (right to education) particularly 14(3): respect for the right of parents to ensure that the education of their children conforms with their convictions and article 33(1) (family and professional life).
+In short, they submitted that the sharing of personal data without consent and absent strict necessity infringed one or more of those articles of the CFR.
+It is not suggested that the DPA fails to transpose the Directive or is contrary to the CFR.
+In so far as the appellants complaint relates to the sharing of what the DPA describes as sensitive personal data, we have, in large measure in agreement with the Inner House and the Lord Ordinary, interpreted the relevant provisions of the DPA and the 2014 Act as preserving the stringent restrictions in Schedule 3 to the DPA and having the effect that condition 7(1)(b) of Schedule 3 is not met (paras 49 to 58 above).
+In so far as the DPA allows the 2014 Act to authorise the disclosure of (non sensitive) personal data which are not subject to any duty of confidentiality, we do not see a separate issue arising under EU law.
+In so far as the challenge relates to the over riding of confidentiality of personal data (whether or not sensitive), we have addressed this in our discussion of article 8 of the ECHR.
+In Volker und Marcus Schecke GbR and Hartmut Eifert v Land Hessen (Cases C 92/09 and C 93/09) [2010] ECR I 11063, the Court of Justice of the European Union (Grand Chamber) held (para 52) that the limitations which may lawfully be placed on the right to the protection of personal data correspond to those tolerated in relation to article 8 of the ECHR.
+We are therefore satisfied that there is no additional incompatibility with EU law beyond that which we have found in relation to article 8 of the ECHR.
+The appellants also submit that the Act contravenes EU law because there is no provision enabling a parent or child to seek the removal of information concerning a child from a named persons database once the data are no longer needed for the purposes for which they were collected or processed.
+Reference was made to Google Spain SL v Agencia Espaola de Proteccin de Datos (Case C 131/12) [2014] QB 1022, paras 93 97.
+We do not accept this submission.
+In our view the data retained by public authorities in the exercise of powers under the Act are subject to the fifth data protection principle in Part I of Schedule 1 to the DPA, namely that personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.
+This is because this provision is not inconsistent with the disclosure which sections 23(2), 26(1) and 26(3) of the 2014 Act allows: DPA section 27(3) & (4) (paras 53 and 54 above).
+Part V of the DPA empowers the Information Commissioner, whether at the request of a data subject or otherwise, to enquire into a data controllers compliance with the data protection principles.
+Under section 40 of the DPA, the Information Commissioner is empowered to serve an enforcement notice on a data controller to require such compliance.
+The DPA thus has protections for a data subject, who can also, if necessary, seek judicial review of a decision of the Information Commissioner.
+In our view, the data subject is thereby given a legal remedy and judicial protection as required by Schrems v Data Protection Comr (Case C 362/14) [2016] QB 527, para 95.
+IV Remedy
+In summary, we conclude that the information sharing provisions of Part 4 of the Act (a) do not relate to reserved matters, namely the subject matter of the DPA and the Directive, (b) are incompatible with the rights of children, young persons and parents under article 8 of the ECHR because they are not in accordance with the law as that article requires, (c) may in practice result in a disproportionate interference with the article 8 rights of many children, young persons and their parents, through the sharing of private information, and (d) are not incompatible with EU law in any way which goes beyond their incompatibility with article 8 of the ECHR.
+We are satisfied that it is not possible to remedy this defect by reading down the provisions under section 101 of the Scotland Act 1998.
+Conclusion (b) therefore means that the information sharing provisions of Part 4 of the Act are not within the legislative competence of the Scottish Parliament.
+It would not be appropriate for this court to propose particular legislative solutions.
+But we can properly say the following.
+We do not think that amendment of the RDSG will get round the problem in conclusion (b) or be sufficient in itself to prevent many instances of disproportionate interference to which we refer in conclusion (c).
+Section 28 requires the specified public authorities merely to have regard to the guidance.
+In relation to conclusion (b), it is necessary to address the lack of clarity as to the relationship between the Act and the DPA, arising from the conflict between the provisions of sections 23, 26 and 27 of the Act and the non disclosure provisions of the DPA, and, in particular, the confusion caused by sections 23(7) and 26(11) when read together with provisions of the DPA such as section 35(1).
+Further, in relation to conclusion (c), the Act, subordinate legislation, or binding guidance, should address the circumstances in which (i) the child, young person or parent should be informed of the sharing of information or (ii) consent should be obtained for the sharing of information, including confidential information.
+If the resolution of the problem in conclusion (b) leads to the authorisation of the disclosure of sensitive personal data, the problem identified in conclusion (c) will become even more acute as the sharing of such data will require a compelling justification.
+In short, changes are needed both to improve the accessibility of the legal rules and to provide safeguards so that the proportionality of an interference can be challenged and assessed.
+The reconsideration of the terms of the Act and the RDSG also provides an opportunity to minimise the risk of disproportionate interferences with the article 8 rights of children, young persons and parents.
+Consideration of these matters will involve policy questions which are the responsibility of the Scottish Ministers and the democratic legislature.
+Section 102 of the Scotland Act 1998 provides: (1) This section applies where any court or tribunal decides that an Act of the Scottish Parliament or any (a) provision of such an Act is not within the legislative competence of the Parliament (2) The court or tribunal may make an order suspending the effect of the decision for any (b) period and on any conditions to allow the defect to be corrected.
+We are of the view that this court should consider making an order under section 102(2)(b) of the Scotland Act 1998 to allow the Scottish Parliament and the Scottish Ministers an opportunity, if so advised, to correct the defects which we have identified.
+We do not think that it is appropriate to set out the possible terms of such an order until we have received written submissions from the parties on the terms of the order, including both the period of suspension and any conditions which should be attached to the order.
+As was said in Salvesen v Riddell 2013 SC (UKSC) 236 (Lord Hope at para 57), if such an order is made, it may be appropriate to give permission to the Lord Advocate to return to the court for any further orders under section 102(2)(b) as may be required.
+The court which is best placed to make such further orders may be the Court of Session.
+In the meantime, since the defective provisions are not within the legislative competence of the Parliament, they cannot be brought into force.
+Conclusion
+We would allow the appeal and invite the parties to produce written submissions on the terms of a section 102 order within 42 days of the date of this judgment.
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+The Mental Capacity Act 2005 established a comprehensive scheme for decision making on behalf of people who are unable to make the decision for themselves.
+The decision maker whether a carer, donee of a power of attorney, court appointed deputy or the court stands in the shoes of the person who is unable to make the decision known as P and makes the decision for him.
+The decision has to be that which is in the best interests of P.
+But it is axiomatic that the decision maker can only make a decision which P himself could have made.
+The decision maker is in no better position than P. So what is the decision maker to do if he has reached the conclusion that a particular course of action is in the best interests of P but the body who will be required to provide or fund that course of action refuses to do so? Specifically, what is the role of the Court of Protection where there is a dispute between the providers or funders of health or social care services for a person who lacks the capacity to make the decision for himself and members of his family about what should be provided for him?
+The facts
+MN is a profoundly disabled young man, born in November 1993, so now in his early twenties.
+In the words of the trial judge, Eleanor King J, at [2013] EWHC 3859 (COP), [2014] COPLR 11, para 6, he has severe learning and physical disabilities together with autism and an uncommon epileptic condition resulting in frequent seizures and risk of sudden death.
+A nurse has to be available at all times to administer emergency drugs to MN if the need arises.
+MN had poor muscle tone and uses a wheelchair.
+He is doubly incontinent.
+MN has the cognitive ability of a child aged less than 1 year.
+He has no speech but can express his feelings by facial expression, sounds and gestures.
+MN needs help with feeding as he is vulnerable to choking; he requires 2:1 care with his personal care and accessing the community.
+Overall MN has to have his carers nearby at all times and during the night MN has one sleeping member of staff and one member of staff who stays awake to look after him.
+MN is one of six siblings.
+He has two brothers, BN and DN, who are also profoundly disabled and live in residential care.
+He has two sisters who continue to live with their parents and another brother who lives independently.
+As Bracewell J put it in care proceedings in the Family Division: To care for three such children, requiring constant 24 hour supervision is a Herculean task which this family as a team has undertaken with love and total commitment.
+The closeness of the family is striking.
+The physical care and attention to safety has been exemplary.
+All the family have been involved with every aspect of minute by minute care and supervision.
+There is no doubt that love and commitment have been shown to these children to the highest degree.
+Nevertheless, despite these heroic efforts, the family were unable to cater for all their childrens needs, nor were they able to co operate with the authorities in doing so.
+Hence the need for care proceedings.
+A care order was made in respect of MN in December 2001 when he was just eight years old.
+Bracewell J found that his father had a long history of obstruction of professionals, of refusal to co operate with authority and of being intimidating to anyone with whom he disagreed.
+At its height, he received a custodial sentence for assaulting a social worker.
+An application to discharge the care order was refused in July 2005 when MN was 11.
+Bracewell J found that history had repeated itself in the intervening years.
+Accordingly, MN was still in the care of the local authority in August 2011.
+He was due to reach the age of 18 in November 2011, on which date the care order would come to an end (Children Act 1989, section 91(12)).
+The local authority, predicting that the parents would not see eye to eye with the authorities about what would then be best for MN, issued proceedings in the Court of Protection, seeking orders that: (1) MN reside in such accommodation and receive such education and care as directed by the local authority. (2) MNs contact with his mother, father and other family members be regulated by the local authority and be supervised by such persons when appropriate as the local authority directed.
+On MNs 18th birthday, responsibility for his care was taken over by the National Health Service, now the local Clinical Commissioning Group (CCG) responsible for commissioning care for him.
+MN has been assessed as having a primary health need (under regulation 21 of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012, SI 2012/2996).
+Two days later, with the permission of the Court, he moved to the residential care home where he now lives.
+It was not in dispute that MN lacks the capacity both to conduct this litigation and to make decisions about his residence, education or the arrangements for his care or contact with his family.
+Declarations to that effect have been made by consent.
+He is represented by the Official Solicitor in these proceedings.
+The Official Solicitor instructed an independent social worker to report on MNs best interests in respect of his residence, care, education and contact.
+The social worker has produced three reports in the course of these protracted proceedings.
+His position since 2011 has been that the care home where MN lives provides a safe, settled and supportive environment for him.
+The parents have for the time being accepted that this is where he should stay, although it is clear that their ultimate aim is for him to come and live with them.
+Despite their difficulties in working with MNs father and mother, the care home has instigated much more relaxed arrangements for contact with MN.
+At the time of the hearing before Eleanor King J, the plan was that, providing they gave the home one hours notice (as did the families of all the other residents), they could visit whenever they chose during the day.
+There are also periodic meetings at a caf and arrangements for him to meet his brothers BN and DN, who are also in residential care.
+Thus, by the time of the hearing, the issues between the CCG and the parents had narrowed to two.
+First, the parents wished for MN to come and visit them in their home, some six miles away from his care home.
+An occupational therapist had assessed the home and concluded that it could accommodate MN and his wheelchair for a short visit.
+But trained carers would have to go with him, be allowed into the home to settle him down, and wait outside while he was there (the parents have been reluctant to allow professionals into their home).
+One of the carers would have to be trained to administer emergency medication if required.
+Only the care home manager and her deputy were willing to do this, the rest of her staff fearing that the parents would not co operate, would interfere with the care they provided for MN and would be aggressive and intimidating towards them.
+Hence the care home was unwilling to facilitate MNs visits to the family home, which would therefore require alternative carers to be trained and paid to do so.
+Second, MNs mother wished to be allowed to assist the care home staff with his intimate care when she was visiting him there.
+The independent social worker thought that MNs interaction with his mother in this way could form an important element in his quality of life, provided that she was able to work with the staff.
+Once again, the care home was not willing to allow this.
+This was due partly to fears as to the mothers co operation but also because the parents had declined an offer of the necessary training in manual handling.
+MN is a grown man whose limbs can thrash around, particularly if he has a fit, which can happen at any time without warning.
+The final hearing of the application, initially made by the local authority but now maintained by both the CCG (as lead applicant) and the local authority, was listed for three days in November 2013.
+Voluminous evidence no fewer than 2,029 pages, including 1,289 pages of expert evidence, contained in five lever arch files and position statements had been filed.
+The independent social worker was due to attend.
+The CCG had written in October making its final proposals for contact between MN and his family.
+The CCGs position was that it was not in MNs best interests for his mother to be involved in his personal care or for him to have visits to the family home.
+The staff were unwilling to facilitate this and the CCG was not prepared to fund alternatives.
+The Official Solicitor, for MN, supported the CCGs position.
+The parents disputed their position and the reasons for it.
+In particular, they claimed that the care homes fears about lack of co operation were unwarranted and that the mother was now prepared to undergo the necessary training.
+At 11.32 pm on the day before the hearing was due to begin, counsel for the local authority emailed the other parties to give notice of her intention to argue that the Court of Protection had no jurisdiction to decide the issues.
+The matters that the parents wanted were not on the table given that the CCG had said that it was not willing to allow or to arrange them, or to commission staff or to fund the necessary resources.
+These were public law decisions which could only be challenged by way of judicial review.
+The Court of Protection could only decide between the available options, making a choice that MN could make if he were able, and it was inappropriate to use the proceedings to try and obtain a best interests declaration in order to influence a public law decision.
+It was, to say the least, unfortunate that the legal issue was raised so late in the day.
+It had been foreshadowed in a position statement from the local authority in August 2013 but at a directions hearing later that month directions were given for the filing of further evidence and the parties had prepared for a three day trial of the disputed issues of fact.
+No skeleton argument raising a preliminary issue of law had been filed.
+The parents came to court expecting the court to consider the contact issue over three days in which witnesses would be called and cross examined, after which the court would decide whether what they wanted or what the authorities proposed was in MNs best interests.
+They could be forgiven for feeling a burning sense of injustice at what took place instead.
+On the first day, Eleanor King J heard argument on the legal issue, which she labelled jurisdictional issues in her judgment.
+Counsel for the parents raised no objection, being aware of the issue and familiar with the authorities.
+Written submissions on human rights issues were also made on behalf of the father and responded to jointly by the CCG and local authority.
+The judge then spent the next day writing a judgment, correctly described by Sir James Munby P in the Court of Appeal as detailed and careful: [2015] EWCA Civ 411; [2016] Fam 87, para 50.
+She delivered this on the third day (and perfected it later).
+She accepted the argument put forward by the local authority and CCG and declined to embark upon a hearing of the evidence or resolving the factual disputes.
+Her conclusion was that the Court of Protection has no greater powers than the patient would have if he were of full capacity.
+As she explained, at para 53: If MN had capacity, but required the type of nursing care he currently needs due only to his physical needs, he might wish his mother to assist with his personal care.
+The care providers may, as here, be unwilling to allow this for whatever reason; perhaps health and safety issues or difficult relationships with MNs mother.
+MN with capacity would have the following options: (i) accept the conditions of residence at the care providers establishment, (ii) privately fund his care elsewhere, or (iii) seek to negotiate with the ACCG in the hope of them agreeing to fund his removal to a different residential unit which would allow his mother to assist with his personal care.
+What MN with capacity would not be able to do is to force, by way of court order or otherwise, the care providers to agree to his mother coming into their facility and assisting with his intimate care.
+Judicial review was the only proper vehicle through which to challenge unreasonable or irrational decisions made by care providers and other public authorities.
+In rare cases where a public authority might be acting in breach of convention rights by refusing to fund a particular form of care that could be raised in the Court of Protection by way of a formal application under section 7 of the Human Rights Act 1998.
+In this case, as contact at the family home was not an available option now or in the foreseeable future, the court should not embark upon a best interests analysis of contact at the parents house as a hypothetical possibility.
+Hence she was satisfied that the contact plan now proposed by the CCG was in MNs best interests.
+She therefore made a comprehensive order, among other things, declaring (1) that it was in MNs best interests to continue to reside and receive care at his current care home or, should that come to an end for any reason or the CCG or public body responsible for his residence and care decide that it is no longer in his interests, to move to and reside and receive care at a placement identified by them; and (2) that it was in MNs best interests to have contact with his parents and other members of his family in accordance with the detailed plan set out in a schedule.
+Both parents appealed to the Court of Appeal.
+The President observed that the appeal raised fundamental questions as to the nature of the Court of Protections jurisdiction and, in particular, the approach it should adopt when a care provider is unwilling to provide, or to fund, the care sought, whether by the patient or, as here, by the patients family (para 9).
+In his extensive review of the authorities, he took as his starting point the principle in A v Liverpool City Council [1982] AC 363, that the wardship jurisdiction of the High Court in relation to children should not be used to circumvent or challenge the statutory powers and duties of local authorities in relation to children in their care (para 11).
+He concluded that the judge was right in all respects and essentially for the reasons she gave (para 79).
+He gave four reasons why the Court of Protection should not embark on the kind of process for which the parents contended: first, it is not its proper function to embark upon a factual inquiry into some abstract issue the answer to which cannot affect the outcome of the proceedings before it; second, it should not embark upon such an enquiry in order to provide a platform or springboard for possible future proceedings in the administrative court; third, such an exercise runs the risk of confusing the different perspectives and principles governing the exercise by the Court of Protection of its functions and the exercise by a public authority of its functions; and fourth, it would risk exposing the public authority to impermissible pressure (para 82).
+This appeal
+The father, with the mothers support, now appeals to this Court.
+On behalf of the father, Ms Kerry Bretherton QC makes essentially the argument that she made below.
+The Court of Protection has power under section 16(2)(a) of the Mental Capacity Act 2005 to make a decision on any matter in relation to which P lacks the capacity to decide.
+Among the examples given in section 17 of the use of the courts powers under section 16 in relation to personal welfare is deciding what contact, if any, P is to have with any specified person.
+Hence the court has jurisdiction to make that decision.
+Any decision made on behalf of a person who lacks capacity must be made in his best interests.
+Only once that decision is made should the funding options be considered.
+She accepts that the court has no power to order the CCG to fund what the court considers to be in Ps best interests.
+But the CCG can be expected to give careful consideration to the courts findings on disputed issues of fact, such as, in this case, the willingness of the parents to co operate with the authorities and the care home staff and what would actually be required to make their proposals viable.
+If the CCG maintains its refusal to fund whatever the court thinks best, that can be challenged in judicial review proceedings, albeit only on the usual judicial review grounds, or under the Human Rights Act 1998 on human rights grounds.
+In other words, as Eleanor King J put it, Best interests first; Judicial Review second (para 51).
+Otherwise, a public authority would be able to cut off the Court of Protections best interests inquiry at the outset, simply by refusing to provide or fund anything other than its own proposals.
+Ms Weereratne QC, on behalf of the mother, supports that case.
+She emphasises that there were factual disputes relevant to the two issues in the case which were important to MNs quality of life; that the individuals preferences are at the centre of the care planning process and that it is the function of the Court of Protection to substitute for the preferences of a person who cannot decide or articulate them for himself; and that this approach would be more consistent with the equality and non discrimination principles of the United Nations Convention on the Rights of Persons with Disabilities, which are taken into account by the European Court of Human Rights in its interpretation of the Convention rights: see, most recently, AN v Lithuania, Application No 17280/08, Judgment of 31 May 2016, where the court cited article 12 of the Convention (para 69) and held that where a measure of protection is necessary, it should be proportionate to the degree of incapacity and tailored to the individuals circumstances and needs (para 124).
+The approach adopted in the courts below was supported, albeit with nuanced variations, by Mr Hugh Southey QC on behalf of the CCG and Mr Richard Gordon QC on behalf of the Official Solicitor as litigation friend of MN.
+Despite the wealth of authority cited in the courts below, the applicable principles are readily established from a combination of the fundamental purpose and specific provisions of the 2005 Act and the decisions of this Court and its predecessor in the House of Lords.
+The Mental Capacity Act 2005
+The Mental Capacity Act 2005 had its origins in a project begun by the Law Commission in 1989, with the encouragement of, among others, the Mental Health Sub Committee of The Law Society.
+The Commission published four Consultation Papers: Mentally Incapacitated and Decision Making: An Overview (CP No 119, 1991); Mentally Incapacitated Adults and Decision Making: A New Jurisdiction (CP No 128, 1993); Mentally Incapacitated Adults and Decision Making: Medical Treatment and Research (CP No 129, 1993); and Mentally Incapacitated Adults and Other Vulnerable Adults: Public Law Protection (CP No 130, 1993).
+The Commissions Report, Mental Incapacity (Law Com No 231), was published in 1995.
+This was followed by a Consultation Paper issued by the Lord Chancellors Department, Who Decides? Making Decisions on behalf of Mentally Incapacitated Adults (1997, Cm 3803), which followed closely the Law Commissions proposals.
+The Governments conclusions were set out by the Lord Chancellors Department in Making Decisions: The Governments proposals for making decisions on behalf of mentally incapacitated adults (1999, Cm 4465).
+This adopted most of the principles put forward and recommendations made by the Law Commission.
+After pre legislative scrutiny by the Joint Committee on the Draft Mental Incapacity Bill (Session 2002 03, HL 189, HC 1083), the Bill which became the Mental Capacity Act was passed by 2005 and came into force in 2007.
+Both the Law Commissions and the Governments consultations revealed wide spread support for legislation along the lines proposed amongst health and social care professionals, carers and voluntary organisations catering for mentally disabled adults and their families and carers, as well as among lawyers and the judiciary.
+The Law Commissions project had begun before the decision of the House of Lords in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1.
+At that time, there was no person with legal authority to make decisions on behalf of an adult who was unable to make them for himself, unlike the parent of a child who lacked the competence to do so.
+There was no jurisdiction in any court to appoint such a person or to take the decision itself.
+The old but little used power of the old Court of Protection to appoint a committee of the person was abolished when the Mental Health Act 1959 came into force.
+But there was no statutory procedure under the 1959 Act to take its place.
+A person who did have capacity was not able to appoint another person to make decisions about his personal welfare, as opposed to his property and affairs, should he lose capacity in the future.
+Hence, the decision in In re F was greeted with great relief, especially among health care professionals.
+The House of Lords held that the defence of necessity meant that it was lawful for such professionals and other carers to do what was in the best interests of a person who lacked the capacity to decide for himself whether it should be done.
+That principle has found its way, with qualifications, into section 5 of the 2005 Act.
+The House of Lords also held that the High Court had an inherent jurisdiction to make declarations in advance that a particular course of action would, or would not, be lawful in accordance with that principle.
+Nevertheless, there was still support for legislation.
+This would have four main purposes: it would place the necessity principle on a statutory footing; it would clarify the tests, both for incapacity and for the best interests principle; it would provide for lasting powers of attorney in relation to personal welfare decisions as well as decisions relating to property and affairs; and it would provide a new jurisdiction, in a newly constituted Court of Protection, with powers actually to take decisions on behalf of people unable to take them for themselves, or to appoint deputies to do so, as well as to make declarations as to whether or not they lacked that capacity and as to whether or not a particular course of action or inaction would be lawful.
+Since that time, the inherent jurisdiction of the High Court has been held to encompass situations in which the necessity doctrine does not arise, because there is no tort to which a defence is required, but there is still jurisdiction to declare whether something is, or is not, in a persons best interests: see St Helens Borough Council v PE [2006] EWHC 3460 (Fam); [2007] 2 FLR 1115.
+It has also been held that the 2005 Act has not abolished the inherent jurisdiction, which continues to exist alongside the new jurisdiction: see Westminster City Council v C [2008] EWCA Civ 198; [2009] Fam 11.
+Nevertheless, the great majority of cases are brought in the Court of Protection.
+It will be apparent from the above account that the jurisdiction of the Court of Protection (and for that matter the inherent jurisdiction of the High Court relating to people who lack capacity) is limited to decisions that a person is unable to take for himself.
+It is not to be equated with the jurisdiction of family courts under the Children Act 1989, to take children away from their families and place them in the care of a local authority, which then acquires parental responsibility for, and numerous statutory duties towards, those children.
+There is no such thing as a care order in respect of a person of 18 or over.
+Nor is the jurisdiction to be equated with the wardship jurisdiction of the High Court.
+Both may have their historical roots in the ancient powers of the Crown as parens patriae over people who were then termed infants, idiots and the insane.
+But the Court of Protection does not become the guardian of an adult who lacks capacity and the adult does not become the ward of the court.
+So what powers does the court have? By section 15(1) and (2) it has power to make declarations as to (a) whether a person has or lacks capacity to make a decision specified in the declaration; (b) whether a person has or lacks capacity to make decisions on such matters as are described in the declaration; (c) the lawfulness or otherwise of any act (including an omission or course of conduct) done, or yet to be done, in relation to that person.
+It will be seen from this that the Act focusses on capacity in relation to a specific decision or matter.
+This is consistent with the underlying principles of the Act.
+By section 1(2), a person must be assumed to have capacity unless it is established that he lacks it.
+Under section 2(1), the question is whether a person lacks capacity in relation to a matter.
+There will be people, of whom MN is probably one, who lack capacity in relation to virtually every decision in their life.
+But the Act recognises that capacity is variable and may fluctuate.
+A person may be perfectly capable of taking some decisions but not others.
+A person may be perfectly capable of taking the decision at some times or in some circumstances but not in others.
+In the Court of Appeal in this case, Sir James Munby P pointed out that the still inveterate use of orders in the form of declaratory relief might be thought to be in significant part both anachronistic and inappropriate (para 88).
+The scope of the declarations which may be made by the Court of Protection under section 15 may be narrower than the scope of those which may be made in the High Court: see XCC v AA [2012] EWHC 2183 (COP); [2013] 2 All ER 988.
+But the Court of Protection has the much wider powers of making decisions and appointing deputies under section 16 (para 88).
+And declarations have no coercive effect (para 90).
+All in all, he concluded it might be thought that, unless the desired order clearly falls within the ambit of section 15 , orders are better framed in terms of relief under section 16 (para 91).
+With respect, this is a view that I share.
+Section 16 applies if a person (P) lacks capacity in relation to a matter or matters concerning (a) Ps personal welfare, or (b) Ps property and affairs (section 16(1)).
+The court may then (a) by making an order, make the decision or decisions on Ps behalf in relation to the matter or matters, or (b) appoint a person (a deputy) to make decisions on Ps behalf in relation to the matter or matters (section 16(2)).
+But (a) a decision by the court is to be preferred to the appointment of a deputy to make a decision, and (b) the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances (section 16(4)).
+This approach is consistent with the least restrictive alternative principle, enacted in section 1(6): Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the persons rights and freedom of action.
+It also points up another distinction between the 2005 Act and the Children Act 1989: the 2005 Act does not contemplate as a norm the conferring of the full gamut of decision making power, let alone parental responsibility, over an adult who lacks capacity.
+Note that a court order under section 16(2)(a) simply makes the decision.
+There is no need to declare that the decision made is in Ps best interests, and that may be another reason for preferring orders to declarations.
+Section 16 also confers various ancillary powers upon the court (sections 16(5), (7) and (8)).
+It also provides that the court may make the order, give the directions or make the appointment on such terms as it considers are in Ps best interests, even though no application is before the court for an order, directions or an appointment on those terms (section 16(6)).
+In this respect, the powers of the court do resemble those of the family courts in relation to children, as do its more flexible procedures (of which more later).
+Section 17(1) provides that: The powers under section 16 as respects Ps personal welfare extend in particular to (a) deciding where P is to live; (b) deciding what contact, if any, P is to have with any specified persons; (c) making an order prohibiting a named person from having contact with P; (d) giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P; (e) giving a direction that a person responsible for Ps health care allow a different person to take over that responsibility.
+This is not an exhaustive list and there are various limitations on the powers of deputies (sections 17(2), 20).
+But it is worth noting that section 17(1) does not say, for example, (a) deciding that a named care home must accommodate P, or (b) deciding that a particular person must go and see P whether he wants to or not, or (d) deciding that a person providing health care must provide a particular treatment for P, or (e) deciding that a named person must take over responsibility for Ps health care.
+This is consistent with what was said in the Law Commissions report (Law Com No 231), at para 8.19: Some consultees asked whether the courts power to make an order about where the person should live might provide a route to challenge a care plan made by a local social services authority under the National Health Service and Community Care Act 1990.
+We trust it is clear from the draft Bill that the court only has power to make any decision which the person without capacity could have made.
+Its role is to stand in the shoes of the person concerned.
+If that person has no power, under the community care legislation, to demand the provision of particular services then the court can do no such thing on his or her behalf.
+The Government echoed this in its white paper, Making Decisions (Cm 4465), at para 7.18: The Law Commission stressed that the court should have no powers to make decisions which the person without capacity could not have made, even if they had retained their capacity.
+The court could not, for example, refuse basic care.
+It is also consistent with what was said in this Court in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67; [2014] AC 591, at para 18: The judge began in the right place.
+He was careful to stress that the case was not about a general power to order how the doctors should treat their patient.
+This Act is concerned with enabling the court to do for the patient what he could do for himself if of full capacity, but it goes no further.
+On an application under this Act, therefore, the court has no greater powers than the patient would have if he were of full capacity.
+Of course, there are circumstances in which a doctors common law duty of care towards his patient requires him to administer a particular treatment, but it is not the role of the Court of Protection to decide that.
+Nor is that court concerned with the legality of NHS policy or guidelines for the provision of particular treatments.
+Its role is to decide whether a particular treatment is in the best interests of a patient who is incapable of making the decision for himself.
+Eleanor King J provided an excellent example of how that principle applies to the circumstances of this particular case, in the passage quoted at para 14 above.
+Of course, a person who has the capacity to take a decision for himself may do so for a good reason, a bad reason or no reason at all.
+The 2005 Act reflects this by providing, in section 1(4), that A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
+Courts and people who take decisions on behalf of a person who is unable to take them for himself, on the other hand, have to take such decisions in the best interests of that person.
+Section 1(5) provides that An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
+Section 4 then goes into some detail about the steps which must be taken to arrive at the conclusion as to what is in his best interests.
+These include considering his past and present wishes and feelings, the beliefs and values likely to influence his decision if he had capacity, and other factors which he would be likely to consider if able to do so (section 4(6)).
+In other words, it is a decision about what would be best for this particular individual, taking into account, so far as practicable, his individual characteristics, likes and dislikes, values and approach to life.
+He must also be involved in the decision as far as reasonably practicable (section 4(4)).
+So how is the courts duty to decide what is in the best interests of P to be reconciled with the fact that the court only has power to take a decision that P himself could have taken? It has no greater power to oblige others to do what is best than P would have himself.
+This must mean that, just like P, the court can only choose between the available options.
+In this respect, the Court of Protections powers do resemble the family courts powers in relation to children.
+The family court must also decide what is in the best interests of the child although in the Children Act 1989 this concept is not express but implicit in the courts duty to regard the welfare of the child as its paramount consideration (1989 Act, section 1(1)).
+But the court cannot oblige an unwilling parent to have the child to live with him or even to have contact with him, any more than it can oblige an unwilling health service to provide a particular treatment for the child.
+This was explained in the case of Holmes Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7; [2009] 1 WLR 413, at para 30: When any family court decides with whom the children of separated parents are to live, the welfare of those children must be its paramount consideration: the Children Act 1989, section 1(1).
+This means that it must choose from the available options the future which will be best for the children, not the future which will be best for the adults.
+It also means that the court may be creative in devising options which the parents have not put forward.
+It does not mean that the court can create options where none exist. (Emphasis supplied)
+The Holmes Moorhouse case is important for another reason.
+It demonstrates how the family court is operating on a different plane and on different principles from a public authority which is deciding how to exercise its statutory powers and duties to provide services.
+The parents of three children had separated, the mother remaining in the matrimonial home and the father being ordered to leave.
+The family court made a shared residence order, by consent, that the children should live with each parent.
+The father then applied to the local authority to be housed under its duties to the homeless under Part 7 of the Housing Act 1996.
+These duties vary depending, among other things, upon whether an applicant is in priority need.
+Those in priority need include A person with whom dependent children reside or might reasonably be expected to reside (section 189(1)(b)).
+The father argued that it was reasonable to expect the children to live with him as the family court had ordered that they should.
+The local authority decided that it was not.
+The Court of Appeal held that the shared residence order meant that it was.
+The House of Lords disagreed.
+Lord Hoffmann explained, at para 14, that the questions for the family court and for the local authority were not the same: The question which the housing authority therefore had to ask itself was whether it was reasonably to be expected, in the context of a scheme for housing the homeless, that children who already had a home with their mother should be able also to reside with the father.
+In answering this question, it would no doubt have to take into account the wishes of both parents and the children themselves.
+It would also have to have regard to the opinion of a court in family proceedings that shared residence would be in the interests of the children.
+But it would nevertheless be entitled to decide that it was not reasonable to expect children who were not in any sense homeless to be able to live with both mother and father in separate accommodation.
+The authority was entitled to take into account the fact that housing was a scarce resource, the claims of other applicants and the scale of its responsibilities, when deciding the issue of reasonableness for this purpose.
+Nor should a family court use its own powers as a way of putting pressure upon the local authority to decide in a particular way.
+Other service providing powers and duties also have their own principles and criteria, which do not depend upon what is best for the service user, although that will no doubt be a relevant consideration.
+The Care Act 2014, which is not relevant in this particular case but will be relevant in many which come before the Court of Protection, creates a scheme of individual entitlement to care and support for people in need of social care.
+But it has its own scheme for assessing those needs (section 9) and its own scheme for determining eligibility (section 13) and then deciding how those eligible needs should be met (section 24).
+The Act even provides for the possibility of introducing appeals to a tribunal (section 72), although this has not yet been done.
+The National Health Service also has its own processes for assessing need and eligibility, albeit not in a legislative context which recognises individual legal entitlement.
+Decisions can, of course, be challenged on the usual judicial review principles.
+Decisions on health or social care services may also engage the right to respect for private (or family) life under article 8 of the European Convention on Human Rights, but decisions about the allocation of limited resources may well be justified as necessary in the interests of the economic well being of the country (see McDonald v United Kingdom [2015] 60 EHRR 1).
+Here again, therefore, the legal considerations, both for the public authority and for the court, are different from those under the 2005 Act.
+Discussion
+So how does all this fit together in a case such as this? It is perhaps unfortunate that the issue was described in the Court of Protection as one of jurisdiction and that term was used in the statement of facts and issues before this Court.
+The issue is not one of jurisdiction in the usual sense of whether the court has jurisdiction to hear the case.
+After all, the Court of Protection made the orders which it was asked to make in this case and no one has suggested that it had no jurisdiction to do so.
+It was seized of an application properly made by the authorities responsible for providing services for MN.
+The context was a care order giving the local authority parental responsibility for him which was about to come to an end.
+No doubt if there had been no dispute with the family about his care, there would have been no need to make an application.
+Section 5 of the 2005 Act gives a general authority, to act in relation to the care or treatment of P, to those caring for him who reasonably believe both that P lacks capacity in relation to the matter and that it will be in Ps best interests for the act to be done.
+This will usually suffice, unless the decision is so serious that the court itself has said it must be taken to court.
+But if there is a dispute (or if what is to be done amounts to a deprivation of liberty for which there is no authorisation under the deprivation of liberty safeguards in Schedule A1 to the 2005 Act) then it may be necessary to bring the case to court, as the authorities did in this case.
+The court clearly has jurisdiction to make any of the orders or declarations provided for in the Act.
+The question is not strictly one of jurisdiction but of how the case should be handled in the light of the limited powers of the court.
+What may often follow such an application will be a process of independent investigation, as also happened in this case, coupled with negotiation and sometimes mediation, in which modifications are made to the care plan and areas of dispute are narrowed, again as happened in this case.
+But it does not follow that the court is obliged to hold a hearing to resolve every dispute where it will serve no useful purpose to do so.
+The Court of Protection has extensive case management powers.
+The Court of Protection Rules do not include an express power to strike out a statement of case or to give summary judgment, but such powers are provided for in the Civil Procedure Rules, which apply in any case not provided for so far as necessary to further the overriding objective.
+The overriding objective is to deal with a case justly having regard to the principles contained in the 2005 Act (Court of Protection Rules 2007, rule 3(1)).
+Dealing with a case justly includes dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues and allocating to it an appropriate share of the courts resources (rule 3(3)(c) and (f)).
+The Court will further the overriding objective by actively managing cases (rule 5(1)).
+This includes encouraging the parties to co operate with one another in the conduct of the proceedings, identifying the issues at an early stage, deciding promptly which issues need a full investigation and hearing and which do not, and encouraging the parties to use an alternative dispute resolution procedure if appropriate (rule 5(2)(a), (b)(i), (c)(i), and (e)).
+The courts general powers of case management include a power to exclude any issue from consideration and to take any step or give any direction for the purpose of managing the case and furthering the overriding objective (rule 25(j) and (m)).
+It was held in KD and LD v Havering London Borough Council [2010] 1 FLR 1393 that the court may determine a case summarily of its own motion, but their power must be exercised appropriately and with a modicum of restraint.
+The court is clearly entitled to take the view that no useful purpose will be served by holding a hearing to resolve a particular issue.
+In reaching such a decision, many factors might be relevant.
+In a case such as this, for example: the nature of the issues; their importance for MN; the cogency of the parents demands; the reasons why the CCG opposed those demands and their cogency; any relevant and indisputable fact in the history; the views of MNs litigation friend; the consequence of further investigation in terms of costs and court time; the likelihood that it might bring about further modifications to the care plan or consensus between the parties; and generally whether further investigation would serve any useful purpose.
+In this case, consideration along those lines would no doubt have produced the following conclusions.
+The issues had been narrowed.
+They were important for MN but not as important as the basic question of where he should live.
+There were good reasons, not least in the history, for thinking that the parents wishes were impracticable and that the CCG had good reasons for rejecting them.
+The Official Solicitor supported this.
+In the light of the length of time the proceedings had already taken, and the modifications to the care plan which had been made in the course of them, it was unlikely that investigation would bring about further modifications or consensus.
+And it would be disproportionate to devote any more of the courts scarce resources to resolving matters.
+Case management along these lines does not mean that a care provider or funder can pre empt the courts proceedings by refusing to contemplate changes to the care plan.
+The court can always ask itself what useful purpose continuing the proceedings, or taking a particular step in them, will serve but that is for the court, not the parties, to decide.
+Conclusion
+This was not a case in which the court did not have jurisdiction to continue with the planned hearing.
+It was a case in which the court did not have power to order the CCG to fund what the parents wanted.
+Nor did it have power to order the actual care providers to do that which they were unwilling or unable to do.
+In those circumstances, the court was entitled to conclude that, in the exercise of its case management powers, no useful purpose would be served by continuing the hearing.
+I accept that Eleanor King J did not put it in quite these terms (no doubt reflecting the way the issue was argued before her).
+However, that is the substance of what she was doing and she was entitled in the circumstances to do it.
+I would therefore dismiss this appeal and uphold the orders she made, albeit not for precisely the same reasons.
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+This appeal concerns the lawfulness of a proposal by the Lord Chancellor (then The Rt Hon Christopher Grayling MP) in September 2013 to introduce a residence test for civil legal aid by amending Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), by means of delegated legislation, in the form of a statutory instrument, which I will refer to as the draft order.
+Part 1 of LASPO
+In November 2010, the Ministry of Justice published a consultation paper entitled Proposals for the Reform of Legal Aid in England and Wales.
+Following the subsequent public consultation exercise, the Ministry published a paper entitled Reform of Legal Aid in England and Wales: the Government Response in June 2011.
+The proposals in this June 2011 paper were then largely reflected in a Bill which was put before Parliament, and which, subject to amendments, was enacted as LASPO, a statute which was enacted on 1 May 2012.
+As its title suggests, LASPO is concerned with a number of different areas of the legal system.
+This case is concerned with Part 1 of LASPO, which came into force on 1 April 2013, is entitled Legal Aid, and contains 43 sections.
+Sections 1 to 12 are headed Provision of legal aid.
+Sections 8 to 12 are concerned with civil legal services, and sections 13 to 20 with Criminal legal aid.
+Sections 21 and 22 are concerned with Financial resources, sections 23 to 26 with Contributions and costs, and sections 27 to 30 with Providers of services etc.
+Sections 31 to 43 are Supplementary provisions.
+Section 1(1) of LASPO imposes on the Lord Chancellor a duty to secure that legal aid is made available in accordance with this Part, and section 1(4) enables him to do anything to further those functions.
+Section 2(1) empowers him to make such arrangements as [he] considers appropriate to carry out those functions, and section 3 is concerned with standards of service.
+Section 4(1) requires the Lord Chancellor to appoint a Director of Legal Aid Casework, defined as the Director.
+Section 8 defines civil legal services as the provision of legal advice and assistance as to the law, proceedings, disputes and enforcement other than in connection with criminal matters.
+Section 9 of LASPO is entitled General cases, and it provides: (1) Civil legal services are to be available to an individual under this Part if they are civil legal services described in Part 1 of (a) Schedule 1, and (b) the Director has determined that the individual qualifies for the services in accordance with this Part (2) The Lord Chancellor may by order add services to Part 1 of Schedule 1, or (a) (b) vary or omit services described in that Part, (whether by modifying that Part or Parts 2, 3 or 4 of the Schedule).
+Section 10 of LASPO deals with Exceptional cases, in respect of which civil legal services are to be available even though they would not be available under section 9.
+It includes, in subsection (3), cases where the denial of civil legal services would be a breach of [an] individuals Convention rights or EU rights.
+Section 11 of LASPO is entitled Qualifying for civil legal aid.
+Section 11(1) requires the Director to determine whether an individual qualifies for civil legal services by reference to (a) his financial resources (as defined in section 21 and regulations under that section), and (b) criteria set out in regulations.
+Section 11(2) provides that, in setting the criteria under section 11(1)(b), the Lord Chancellor (a) must consider the circumstances in which it is appropriate to make civil legal services available, and (b) must, in particular, consider the extent to which the criteria ought to reflect the factors set out in subsection (3).
+The ten factors set out in section 11(3) include (a) the likely cost and likely benefit of providing the services, (b) the availability of resources, (e) the nature and the seriousness of the case, (f) the availability of alternative services, (g) the prospects of success, (h) the conduct of the individual concerned in connection with services made available under this Part, and (j) the public interest.
+subsections (1), (2) and (3) are in these terms: Section 41 of LASPO is headed Orders, regulations and directions, and (1) Orders, regulations and directions under this Part (a) may make different provision for different cases, circumstances or areas, (b) may make provision generally or only for specified cases, circumstances or areas, and (c) may make provision having effect for a period specified or described in the order, regulations or direction. (2) They may, in particular, make provision by reference to services provided for the purposes of (a) proceedings before a particular court, tribunal or other person, (b) individual, or (c) services provided for individuals selected by reference to particular criteria or on a sampling basis. services provided for a particular class of (3) Orders and regulations under this Part (a) may provide for a person to exercise a discretion in dealing with any matter, (b) may make provision by reference to a document produced by any person, and (c) may make consequential, supplementary, incidental, transitional or saving provision.
+Section 41(6) provides that a statutory instrument containing an order made under any section mentioned in section 41(7) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament, and section 41(7) included, in para (a), orders under section 9.
+Schedule 1 to LASPO is headed Civil Legal Services and Part 1 sets out the Services, which are referred to in section 9(1)(a).
+Over 40 categories are set out in Part 1 of Schedule 1, and almost all of them begin with the words Civil legal services provided either to or in relation to.
+They include care, supervision and protection of children (para 1), special educational needs (para 2), and abuse of an individual when a child or a vulnerable adult, but only where (a) the services are provided to the individual (para 3).
+The categories also include appeals relating to welfare benefits (para 8), victims of domestic violence and family matters (para 12), and judicial review, save where such review will produce no benefit to the individual concerned (para 19).
+Other categories are breach of Convention rights by a public authority (para 22), certain specified immigration matters (paras 24 31), loss of home and homelessness (paras 33 and 34), protection from harassment (para 37), in relation to a sexual offence, but only where (a) the services are provided to the victim of the offence (para 39).
+Also, inquests (para 41), environmental pollution (para 42), and equality (para 43).
+Some of these paragraphs are fairly detailed and include exclusions and definitions.
+Part 2 of Schedule 1 is entitled Excluded services, and it is introduced with the following words, The services described in Part 1 of this Schedule do not include the services listed in this Part of this Schedule, except to the extent that Part 1 of this Schedule provides otherwise.
+Part 2 contains 18 paragraphs, and (with the exception of para 14) they all begin with the words Civil legal services provided in relation to, and then refer to specific areas, including personal injury or death (para 1), a claim in tort in respect of negligence (para 2), damage to property (para 6), a claim in tort in respect of breach of statutory duty (para 8) and a benefit, allowance, payment, credit or pension under certain statutes (para 15).
+Paragraph 14 of Part 2 of Schedule 1 is Civil legal services provided to an individual in relation to matters arising out of establishing, carrying on, or terminating a business.
+Part 3 of Schedule 1 is concerned with Advocacy: exclusion and exceptions, and it sets out tribunals before which advocacy is within the Services covered by Part 1 of the Schedule.
+Part 4 of that Schedule is concerned with Interpretation.
+The draft order
+In April 2013, the Ministry of Justice issued a paper, Transforming Legal Aid, and subsequently carried out a public consultation exercise in connection with its proposals.
+In September 2013, the Ministry published its response to the results of that exercise, Transforming Legal Aid: Next Steps.
+In the September 2013 paper, the Ministry stated at para 132 that, subject to certain specified exceptions: [T]he Government has decided to proceed with the introduction of a residence test in civil legal aid so that only those who are: lawfully resident in the UK, Crown Dependencies or British Overseas Territories at the time the application for civil legal aid was made; and have resided lawfully in the UK, Crown Dependencies or British Overseas territories for a continuous period of at least 12 months at any point in the past
+would be eligible for civil legal aid
+The specified exceptions were (i) serving members of the armed forces and their families, (ii) asylum seekers, and (iii) in relation to the second bullet point, children aged under 12 months.
+No exception was to be made for older children who were not responsible for their lack of lawful resident status.
+The Ministry later agreed to exclude certain classes of case from the ambit of this proposal, namely categories of case which broadly relate to an individuals liberty, where the individual is particularly vulnerable, or where the case relates to the protection of children.
+In its September 2013 paper, the Ministry described the proposal as justified and proportionate, and pointed out that anyone excluded by the residence test would be entitled to apply for exceptional funding.
+In para 6.3 of an Equality Statement attached to that paper, the Ministry described the primary objective of the proposal as being to bear down on the cost of legal aid, ensuring that every aspect of expenditure is justified and that we are getting the best deal for the taxpayer, and further stated that the reforms seek to promote public confidence in the system by ensuring limited public resources are targeted at those cases which justify it and those people who need it.
+Also in September 2013, the Lord Chancellor decided to proceed with his proposal described in paras 12 and 13 above, and to give effect to that decision by laying a draft order before Parliament.
+The draft order was put before Parliament on 31 March 2014.
+The draft order stated that it was made pursuant to sections 9(2)(b), 41(1)(a) and (b), 41(2)(a) and (b), and 41(3)(b) and (c) of LASPO.
+The draft order effectively provides that an individual who fails the residence test would no longer qualify for civil legal aid for any types of claim, subject to certain limited exceptions.
+The effect of the draft order was to insert a new para 19 into Part 2 of Schedule 1, whose effect was explained by Moses LJ in the Divisional Court at [2015] 1 WLR 251, paras 21 24, and was more shortly summarised by Mr Eadie QC, who appeared for the Lord Chancellor, in a description adopted by Laws LJ in the Court of Appeal at para 8: To satisfy the residence test, an individual would have to be lawfully resident in the UK, the Channel Islands, Isle of Man or a British Overseas Territory on the day the application for civil legal services was made, and (unless they were under 12 months old or a particular kind of asylum claimant or involved with the UK Armed Forces) have been so lawfully resident for a 12 month period at some time in the past (excluding absences of up to 30 days).
+There were proposed exceptions to the test.
+Claimants pursuing certain types of proceedings were not required to satisfy the test (for example, domestic violence cases, and challenges to the lawfulness of detention).
+In any event, regardless of residence, a claimant who failed the residence test would have been entitled to apply for legal aid under the Exceptional Case Funding regime in section l0 of LASPO whose purpose is to ensure that all those who have a right to legal aid under the European Convention or EU law are able to obtain it.
+The instant proceedings
+Before the draft order had been laid before Parliament, Public Law Project (PLP) applied to the High Court for a declaration that it would be unlawful.
+The alleged unlawfulness was based on two grounds, namely that the draft order was or would be (i) ultra vires, ie outside the scope of the power granted to the Lord Chancellor in LASPO to bring forward delegated legislation, and (ii) unjustifiably discriminatory in its effect.
+The Divisional Court, in a judgment given by Moses LJ (with whom Collins and Jay JJ agreed), held that the draft order was unlawful on both grounds [2015] 1 WLR 251.
+As the draft order was before Parliament at the time of the decision of the Divisional Court, it was withdrawn, and that remains the position today.
+The Lord Chancellor appealed against both conclusions reached by the Divisional Court.
+The Court of Appeal, in a judgment given by Laws LJ (with whom Kitchin and Christopher Clarke LJJ agreed), allowed his appeal, holding that the draft order was intra vires and, while it was discriminatory in its effect, the discrimination could be justified [2016] 2 WLR 995.
+PLP now appeals to this court, and maintains both the ultra vires and the discrimination arguments.
+The ultra vires principle in the present context
+The draft order, once formally made, would, of course, be secondary, or subordinate, legislation, unlike LASPO itself which, as a statute, is primary legislation.
+Primary legislation is initiated by a Bill which is placed before Parliament.
+To the extent that Parliament considers it appropriate, all or any of the provisions of a Bill can be subject to detailed scrutiny, discussion, and amendment in Parliament before being formally enacted as primary legislation; it is then formally approved by the monarch, whereupon it becomes a statute.
+In our system of parliamentary supremacy (subject to arguable extreme exceptions, which I hope and expect will never have to be tested in practice), it is not open to a court to challenge or refuse to apply a statute, save to the extent that Parliament authorises or requires a court to do so.
+Subordinate legislation consists of legislation made by members of the Executive (often, as in this case, by Government ministers), almost always pursuant to an authority given by Parliament in primary legislation.
+The draft order in the present case would be a statutory instrument, which is a type of subordinate legislation which must be laid in draft before Parliament.
+Some statutory instruments are subject to the negative resolution procedure ie they will become law unless, within a specified period, they are debated and voted down.
+Other statutory instruments, such as the draft order in this case, are subject to the affirmative resolution procedure ie they can only become law if they are formally approved by Parliament see subsections (6) and (7)(a) of section 41.
+Although they can be said to have been approved by Parliament, draft statutory instruments, even those subject to the affirmative resolution procedure, are not subject to the same legislative scrutiny as bills; and, unlike bills, they cannot be amended by Parliament.
+Accordingly, it is well established that, unlike statutes, the lawfulness of statutory instruments (like other subordinate legislation) can be challenged in court.
+As Lord Diplock said in F Hoffmann La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295, 365, even though [subordinate legislation] is contained in an order made by statutory instrument approved by resolutions of both Houses of Parliament, I entertain no doubt that the courts have jurisdiction to declare it to be invalid if they are satisfied that in making it the Minister who did so acted outwith the legislative powers conferred upon him by the Act of Parliament under which the order [was] purported to be made .
+Subordinate legislation will be held by a court to be invalid if it has an effect, or is made for a purpose, which is ultra vires, that is, outside the scope of the statutory power pursuant to which it was purportedly made.
+In declaring subordinate legislation to be invalid in such a case, the court is upholding the supremacy of Parliament over the Executive.
+That is because the court is preventing a member of the Executive from making an order which is outside the scope of the power which Parliament has given him or her by means of the statute concerned.
+Accordingly, when, as in this case, it is contended that actual or intended subordinate legislation is ultra vires, it is necessary for a court to determine the scope of the statutorily conferred power to make that legislation.
+Normally, statutory provisions which provide for subordinate legislation are concerned with subsidiary issues such as procedural rules, practice directions, and forms of notice; hence statutory instruments are frequently referred to as regulations.
+However, such statutory provisions sometimes permit more substantive issues to be covered by subordinate legislation, and, as is the case with section 9(2)(b) of LASPO, they sometimes permit subordinate legislation which actually amends the statute concerned (or even another statute), by addition, deletion or variation.
+As explained in Craies on Legislation (10th ed (2015)), edited by Daniel Greenberg), para 1.3.9: The term Henry VIII power is commonly used to describe a delegated power under which subordinate legislation is enabled to amend primary legislation.
+When a court is considering the validity of a statutory instrument made under a Henry VIII power, its role in upholding Parliamentary supremacy is particularly striking, as the statutory instrument will be purporting to vary primary legislation passed into law by Parliament.
+The interpretation of the statutory provision conferring a power to make secondary legislation is, of course, to be effected in accordance with normal principles of statutory construction.
+However, in the case of an amendment that is permitted under a Henry VIII power, to quote again from Craies (op cit) para 1.3.11: as with all delegated powers the only rule for construction is to test each proposed exercise by reference to whether or not it is within the class of action that Parliament must have contemplated when delegating.
+Although Henry VIII powers are often cast in very wide terms, the more general the words by Parliament to delegate a power, the more likely it is that an exercise within the literal meaning of the words will nevertheless be outside the legislatures contemplation.
+In two cases, R v Secretary of State for Social Security, Ex p Britnell [1991] 1 WLR 198, 204 and R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349, 383, the House of Lords has cited with approval the following observation of Lord Donaldson MR in McKiernon v Secretary of State for Social Security, The Times, November 1989; Court of Appeal (Civil Division) Transcript No 1017 of 1989, which is to much the same effect: Whether subject to the negative or affirmative resolution procedure, [subordinate legislation] is subject to much briefer, if any, examination by Parliament and cannot be amended.
+The duty of the courts being to give effect to the will of Parliament, it is, in my judgment, legitimate to take account of the fact that a delegation to the Executive of power to modify primary legislation must be an exceptional course and that, if there is any doubt about the scope of the power conferred upon the Executive or upon whether it has been exercised, it should be resolved by a restrictive approach.
+Immediately after quoting this passage in Spath Holme, Lord Bingham went on to say [r]ecognition of Parliaments primary law making role in my view requires such an approach.
+He went on to add that, where there is little room for doubt about the scope of the power in the statute concerned, it is not for the courts to cut down that scope by some artificial reading of the power.
+Is the draft order ultra vires?
+The argument that the draft order is ultra vires the powers granted to the Lord Chancellor is, in essence, as follows.
+The exclusion of a specific group of people from the right to receive civil legal services in relation to an issue, on the ground of personal circumstances or characteristics (namely those not lawfully resident in the UK, Crown Dependencies or British Overseas Territories) which have nothing to do with the nature of the issue or services involved or the individuals need, or ability to pay, for the services, is simply not within the scope of the power accorded to the Lord Chancellor by section 9(2)(b) of LASPO, and nothing in section 41 undermines that contention.
+In my view, that argument is sound, and should be accepted.
+Turning to section 9(2)(b) itself, as a matter of ordinary language, the relevant parts of the draft order do not seek to vary or omit services: rather they seek to reduce the class of individuals who are entitled to receive those services by reference to a personal characteristic or circumstance unrelated to the services.
+Of course, the words of section 9(2)(b) have to be interpreted in their context, and I accept that a sufficiently clear and strong context could justify a different conclusion, in the sense that the words of section 9(2)(b) could, as a matter of language, just about extend to a regulation such as the draft order.
+Nonetheless, that is not their natural meaning, and, of course, the natural meaning of the words in question is an important factor in an issue of statutory interpretation, particularly when they suggest that a so called Henry VIII power does not extend to authorise the subordinate legislation in question.
+When one turns to the wider statutory context, I consider that it supports, rather than undermines, the conclusion indicated by the natural meaning of the words of section 9(2)(b) on their own.
+First, section 9(2)(b) permits a variation or omission of the services set out in Part 1 of Schedule 1, by, inter alia, modifying that Part or Part 2 of that Schedule.
+Each of the services identified in Part 1 and Part 2 is linked to a specific type of legal issue or claim, and has nothing to do with the personal circumstances or characteristics, and in particular the geographical residence, of the potential recipient of the services, other than those which relate to the issue or the services concerned.
+The point is well demonstrated by the fact that, as mentioned in para 10 above, all the existing 18 paragraphs of Part 2 of the Schedule are concerned with Civil legal services provided in relation to specified areas of litigation, whereas the new proposed para 19 will have nothing to do with any specified area of litigation at all.
+It is true that, as mentioned in para 9 above, some provisions, such as paras 3(a) and 39(a) of Part 1, limit the right to receive legal services to one specific group, namely the victims of alleged wrongdoing, and exclude, for instance, the alleged perpetrators.
+However, that does not in any way undermine PLPs case, because the objection to the draft order is that it excludes (albeit subject to exceptions) a group of individuals on grounds which have nothing to do with the issue or services involved.
+This conclusion is supported by the contrast in the wording of the two subsections of section 9.
+Subsection (1) states that [c]ivil legal services are to be available to an individual if (a) they are civil legal services described in Part 1 of Schedule 1, and (b) the Director determines that the individual qualifies for the services.
+Thus, subsection (1) clearly distinguishes between the question whether the particular services qualify para (a) and whether the particular individual qualifies para (b).
+When one turns to the subsection under which the draft order in the present case is said to have been made, both para (a) and para (b) of subsection (2) refer only to services within Part 1 of Schedule 1.
+The natural inference from this is that subsection (2) is concerned with adding to, varying or omitting services, and not the individuals to whom the services may be provided.
+Looking elsewhere in LASPO, whereas section 9, the section under which the draft order was purportedly made, is concerned with the issues in respect of which civil legal services are to be available, section 11 of LASPO is the provision which appears to be concerned with identifying the characteristics or circumstances of individuals who are to qualify for civil legal aid.
+Section 11 gives rise to two points in favour of PLPs case.
+First, the very fact that it is that section which sets out the personal characteristics or circumstances of those individuals who are entitled to civil legal aid provides obvious support that such matters are outwith section 9.
+Secondly, the factors listed in section 11(1) or (3), some of which are described in para 7 above, are concerned with criteria which are connected to the need of the individual for the services, the cost of the services, the extent and likelihood of the benefit from those services and the conduct of the individual in connection with the services.
+There is no criterion which is based on personal characteristics or circumstances which have nothing to do with the issue involved, the services concerned, or the need of the individual concerned for financial assistance. (It is true that public interest, mentioned in section 11(3)(j), would be capable in some contexts of extending to personal characteristics or circumstances, but, read in their context, those words cannot have such an effect in section 11(3), and it was not argued otherwise.) This suggests that the draft order is attempting to do something which the legislature never had in mind when enacting Part 1 of LASPO, let alone section 9.
+As Lord Carnwath mentioned, that point is underlined by the strong presumption that, as it is put in Bennion on Statutory Interpretation 6th ed (2013), section 129, an enactment applies to foreigners within its territory as it applies to persons within that territory belonging to it.
+It was conceded on behalf of the Lord Chancellor that he could not have made the draft order under section 11.
+Given that that section is concerned with prescribing the characteristics and circumstances of those who should be able to qualify for civil legal services, it seems to me that that concession tends of itself to provide additional support for PLPs contention that the Lord Chancellor cannot make such an order under section 9.
+The Court of Appeal concluded that section 41, and in particular section 41(2)(b), could be invoked to defeat this contention.
+It is true that section 41(2)(b) permits any order made under section 9(2)(b) to make provision by reference to services provided for a particular class of individual.
+However, I cannot accept that this means that the power to make orders under section 9(2)(b) is thereby extended to exclude a whole class of individuals from the scope of Part 1 of LASPO by reference to their residence.
+Section 41 is clearly intended to grant ancillary powers to those powers which are, as it were, primarily granted by provisions such as section 9: it is not intended to permit an alteration in the nature, or a substantive extension, of those powers.
+The observations in Craies, cited in para 26 above, is very much in point.
+In my view, in relation to his powers under section 9(2), section 41(2)(b) enables the Lord Chancellor to make limitations such as those already found in paras 3(a) and 39(a) of Part 1 of Schedule 1 to LASPO, and explained in para 8 above.
+Finally, looking at the issue more broadly, it is said that one of the main purposes of Part 1 of LASPO was to reduce the availability of legal aid in connection with legal advice and representation in relation to civil claims, and that this is also the reason for the draft order.
+It is also said that one of the aims of the provisions of sections 9 and 11 of, and Parts 1 and 2 of Schedule 1 to, LASPO is to direct legal aid to what are believed to be the individuals who, and types of claim which, are most deserving of public support, and that the draft order has that aim too.
+However, even if they are right (which in a broad sense I think they are), those contentions involve expressing the aim of the legislation in far too general terms to justify rejecting PLPs case.
+As is apparent from sections 9 and 11 themselves, and from the Ministry of Justices June 2011 paper referred to in para 2 above, the purpose of Part 1 of LASPO was, in very summary terms, to channel civil legal aid on the basis of the nature and importance of the issue, an individuals need for financial support, the availability of other funding, and the availability of other forms of dispute resolution.
+The exclusion of individuals from the scope of most areas of civil legal aid on the ground that they do not satisfy the residence requirements of the proposed order involves a wholly different sort of criterion from those embodied in LASPO and articulated in the 2011 paper.
+Conclusion
+Accordingly, in agreement with the Divisional Court, I have reached the conclusion that the appeal should be allowed on the first, ultra vires, issue.
+We had unanimously come to this view at the end of the argument on the ultra vires issue, and decided that, subject to the parties seeking to persuade us otherwise, it would be wiser not to deal with the discrimination issue.
+The parties did not seek to dissuade us from this course, and therefore it would be inappropriate to say anything more about it.
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+As a child, the claimant was abused physically and sexually by foster parents with whom she was placed while in the care of the defendant local authority.
+The local authority were not negligent in the selection or supervision of the foster parents.
+The question the court has to decide is whether the local authority are nevertheless liable to the claimant for the abuse which she suffered, either on the basis that they were in breach of a non delegable duty of care, or on the basis that they are vicariously liable for the wrongdoing of the foster parents.
+The facts
+The claimant was taken into the care of the local authority in February 1985, when she was aged seven.
+Statutory care orders followed.
+Between March 1985 and March 1986 she was fostered by a Mr and Mrs Allison.
+The judge found that during that period, she was physically and emotionally abused by Mrs Allison.
+Between October 1987 and February 1988 she was fostered by a Mr and Mrs Blakely.
+The judge found that during that period, she was sexually abused by Mr Blakely.
+In each case, the abuse took place in the foster home in the course of day to day care and control of the claimant.
+Mrs Allison employed grossly excessive violence to discipline her.
+Mr Blakely molested her when bathing her and when she was alone in her bedroom.
+The fostering arrangements involved in the two placements were different, and demonstrate that analogies with ordinary family life need to be treated with care.
+Mr and Mrs Allison generally had a large number of children living with them at any given time, and their home had been categorised as a family group foster home.
+The appellant was one of nine or ten children fostered there at the relevant time.
+Mr and Mrs Allison also had four children of their own.
+The fostering arrangements gave rise to a fairly rapid turnover of foster children, mostly under the age of ten.
+Mr and Mrs Blakely, on the other hand, fostered children in a more conventional family setting.
+They had two foster children living with them at the material time the claimant and a younger girl besides two older children of their own.
+The statutory framework
+The statutory framework during the relevant period was contained in the Children and Young Persons Act 1969 (the 1969 Act), the Child Care Act 1980 (the 1980 Act), and the Boarding Out of Children Regulations 1955 (SI 1955/1377) (the Regulations).
+The claimant was committed to the care of the local authority by virtue of a care order made under section 1 of the 1969 Act.
+Section 10 of the 1980 Act set out the powers and duties of a local authority when a care order was made: (1) It shall be the duty of a local authority to whose care a child is committed by a care order . to receive the child into their care and . to keep him in their care while the order . is in force. (2) A local authority shall, subject to the following provisions of this section, have the same powers and duties with respect to a person in their care by virtue of a care order . as his parent or guardian would have apart from the order .
+In terms of section 12(2) of the 1980 Act, those functions were in addition to the functions conferred on the authority by Part III of that Act.
+Part III included section 18(1), which imposed a general duty on the local authority, in reaching any decision as to a child in their care, to give first consideration to the need to safeguard and promote the welfare of the child throughout his childhood, and so far as practicable to ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding.
+Section 21 of the 1980 Act provided: (1) A local authority shall discharge their duty to provide accommodation and maintenance for a child in their care in such one of the following ways as they think fit, namely, (a) by boarding him out on such terms as to payment by the authority and otherwise as the authority may, subject to the provisions of this Act and regulations thereunder, determine; or (b) by maintaining him in a community home or in any such home as is referred to in section 80 of this Act; or (c) by maintaining him in a voluntary home (other than a community home) the managers of which are willing to receive him; or by making such other arrangements as seem appropriate to the local authority. (2) Without prejudice to the generality of subsection (1) above, a local authority may allow a child in their care, either for a fixed period or until the local authority otherwise determine, to be under the charge and control of a parent, guardian, relative or friend.
+It follows from section 10(1) of the 1980 Act that the local authority were required to keep the claimant in their care, and to comply with the duties imposed by section 10(2), so long as the order remained in force, even if the claimant was boarded out in accordance with section 21(1)(a): that is to say, was placed with foster parents.
+It is implicit in the opening words of section 21(1) that the local authoritys duties included a duty to provide accommodation and maintenance for a child in their care, and it follows from section 21(1)(a) and (2) that a foster placement, and a placement with the childs family, were among the means by which that duty could be discharged.
+Section 22 of the 1980 Act enabled the Secretary of State to make regulations making provision for the welfare of children boarded out by local authorities under section 21(1)(a), including provision for securing that children shall not be boarded out in any household unless that household is for the time being approved by such local authority as may be prescribed by the regulations (section 22(2)(b)), and provision for securing that children boarded out under section 21(1)(a) of this Act, and the premises in which they are boarded out, will be supervised and inspected by a local authority and that the children will be removed from those premises if their welfare appears to require it (section 22(2)(d)).
+Turning to the Regulations, regulation 1 provided that the Regulations applied to the boarding of a child to live with foster parents in their dwelling as a member of their family.
+Regulation 4 required the local authority not to allow a child to remain boarded out with any foster parents if it appeared that the boarding out was no longer in his best interests.
+Regulation 5 provided for the child to be removed from the foster parents forthwith if the visitor appointed under the Regulations to supervise his welfare considered that his health, safety or morals were endangered.
+Regulation 6 required the child to undergo a medical examination before being placed with foster parents, except in a case of emergency.
+Regulation 7 required the local authority to arrange medical examinations of boarded out children every six to 12 months, depending on the age of the child.
+Regulation 8 required adequate arrangements to be made for the child to receive medical and dental attention.
+Regulation 9 required visitors to make written reports about the children and houses they visited.
+Regulation 10 required the local authority to maintain case records in respect of every child boarded out by them.
+Regulation 11 required the local authority to maintain a register of foster parents and boarded out children.
+In relation to boarding out arrangements expected to last for more than eight weeks, regulation 17 required that the foster home should be visited in advance, and a report obtained from the visitor as to its suitability.
+Regulation 19 required that, where possible, a child should be boarded out with foster parents who were of the same religious persuasion, or who gave an undertaking to bring the child up in that religious persuasion.
+Regulation 20 required the local authority to obtain an undertaking from the foster parents, stating (amongst other things) that they had received the child into their home as a member of their family, that they would allow the child to be medically examined at such times and places as the local authority might require, that they would inform the local authority immediately of any serious occurrence affecting the child, that they would at all times permit any person authorised by the local authority to see the child and to visit their home, and that they would allow the child to be removed from their home when so requested by any person authorised by the local authority.
+Regulation 21 required the local authority to ensure that a visitor saw the child and visited the foster parents house within one month after the commencement of the placement, and thereafter as often as the welfare of the child required, but not less often than every one to three months, depending on the age of the child, the length of the placement, and any change of address.
+Regulation 22 required the local authority to ensure that reviews of the childs welfare, health, conduct and progress were carried out, by persons who did not usually act as visitors, within three months after the child was placed with any foster parents, and thereafter as often as was expedient in the particular case, but not less often than once in every six months.
+It is apparent from the Regulations that, although the local authority did not exercise day to day control over the manner in which the foster parents cared for the claimant, they nevertheless had powers and duties of approval, inspection, supervision and removal without any parallel in ordinary family life.
+Relevant practice
+The evidence of social care experts was that children in care are placed in foster care wherever it is considered safe and appropriate to do so, since it is a fundamental principle of social work practice that children are best placed in a family environment.
+That principle had been established by the time the claimant was in care.
+The process of becoming a foster carer involves extensive safeguarding and reference checks, assessment of potential to foster by a supervisory social worker, and attendance at pre approval training.
+The process was broadly similar, although less highly developed, at the time when the claimant was in care.
+Foster carers were described in evidence led on behalf of the local authority as home based professionals . acting as a public parent in a private household.
+According to the evidence, the local authority recruited individuals as prospective foster parents.
+A social worker employed as a substitute family care worker assessed and prepared them for placements, and supported them in their role as carers.
+Arrangements for specific placements reflected the legal status of the child (in particular, whether she was received into care voluntarily or was the subject of a care order), the purpose of the placement, the skills and experience of the foster parents in dealing with children who belonged to a particular age group or presented particular problems, and the circumstances of the child and her family.
+The substitute family care worker dealt with the foster parents on a long term basis.
+She reviewed their training needs and provided or co ordinated the necessary training.
+This might include specialised training: for example, the records relating to Mr and Mrs Allison indicate that they were to receive training prior to their designation as family foster group parents, while, somewhat ironically, Mr and Mrs Blakely received training in dealing with abused children.
+The substitute family care worker also monitored placements, assessing how the foster parents were coping with the child or children in the placement, the impact the foster child was having on their own children, the difficulties they might be experiencing, and the support or information they might require.
+This involved visits to the foster family, which took place at least monthly, but might be more frequent if the need arose.
+There were also less frequent case reviews, which were typically chaired by a senior member of the local authoritys social work department, and attended by the substitute family care worker, the childs social worker (whose focus was on the child, and whose involvement with the foster parents would last only as long as the childs placement with them), the foster parents, and members of the childs family.
+The foster parents also attended planning meetings at the social work department, when the care arrangements for fostered children were discussed.
+A minute of such a meeting, involving Mr and Mrs Blakely, indicates that they were provided with diaries in which to record the behaviour, development and statements of children whom they were fostering.
+In the case of family group foster parents, such as Mr and Mrs Allison, there were also annual reviews attended by social work staff and the foster parents themselves.
+The documents relating to Mr and Mrs Allison, and Mr and Mrs Blakely, for the period in question also indicate that it was the practice for a foster carer agreement between the foster family, the substitute family care worker and the childs social worker to be recorded in writing at the beginning of the placement, covering such matters as contact between the child and her family, visits by the childs social worker and activities during those visits, visits by the substitute family care worker, and case reviews.
+This was additional to the undertaking given in accordance with regulation 20 of the Regulations.
+In the case of Mr and Mrs Allison, a written agreement was also entered into between themselves and the local authority when they were given the status of family group foster parents, recording the number and age of the children to be placed with them, and their use as an emergency foster home for out of hours placements.
+Foster care does not involve a complete break from the childs family.
+That is reflected in the fact that the fostering agreements contemplated contact between the child and her family.
+In the present case, it was envisaged that the claimant would return to the care of her mother.
+Consequently, she had contact with her mother during the foster placements, and spent a significant period of time between the foster placements living with her mother.
+It appears from the evidence that, besides the matters specifically mentioned in the Regulations, there were other aspects of the life of a child in foster care which were decided by the local authority, reflecting the fact that it was the local authority, not the foster parents, which possessed parental powers in relation to the child.
+It was the local authority which agreed to medical treatment of the child, and which decided the level of contact between the child and her family.
+The local authority also decided whether or not the child could go on holiday, whether the child could have a passport, and whether the child could go on school trips or on overnight stays with friends.
+According to the evidence, if the foster parents needed child care because they were working, generally the social worker would make the arrangements because of the need to ensure that any substitute carer was suitable.
+Sometimes extended members of the foster family were approved to care for the child in the foster carers absence.
+A few matters, including the religion in which the child was brought up, remained under the control of the childs parents.
+Areas where either the foster parent or the social worker could become involved included attending parents evenings at the childs school, making arrangements for contact with members of the childs family, and buying clothes and equipment for the child.
+The foster parents were expected to undertake the daily care of the child and to take the child to the dentist and the optician.
+Foster parents received boarding out allowances from the local authority.
+In the case of family group foster homes, such as Mr and Mrs Allison provided, the allowances were paid at a scale which was higher than normal.
+Foster parents also received additional allowances or grants for such matters as taxi fares, holidays and childminding costs incurred in respect of the children.
+For example, Mr and Mrs Allison received payments to cover the cost of childminding when they took children on various visits and outings, and when they attended reviews.
+They also received equipment, such as beds and mattresses, when necessary.
+The proceedings below
+The trial judge, Males J, dealt with the issues of liability and limitation, leaving issues concerning causation and quantum of damages to be dealt with later if necessary: [2014] EWHC 4005 (QB); [2015] PTSR 653.
+In relation to limitation, the judge decided that the limitation period should be disapplied pursuant to section 33 of the Limitation Act 1980.
+In relation to liability, there was no case that the local authority had failed to exercise reasonable care in the selection of the foster parents or in the supervision and monitoring of the placements.
+The claimants case was that the local authority was responsible in law for the tortious conduct of the foster parents, either on the basis of vicarious liability, or on the basis of a non delegable duty of care.
+In a carefully reasoned judgment, the judge rejected both arguments.
+In relation to vicarious liability, the judge considered the law as stated in Lord Phillips of Worth Matravers judgment in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56; [2013] 2 AC 1 (the Christian Brothers case), and focused on the question whether the relationship between the local authority and the foster parents was akin to that between an employer and an employee.
+He concluded that it was not.
+Considering the five features listed by Lord Phillips in para 35 of the Christian Brothers judgment, he accepted that the first and fourth features were present: the local authority were more likely to have the means to compensate a claimant and would have insurance, and by placing the child with the foster parents the local authority would have created the risk of abuse being committed by the foster parents.
+On the other hand, he considered that the remaining features were not satisfied.
+Treating the activity of the foster parents as the provision of family life, they did not in his view provide family life on behalf of the local authority, and their provision of family life was not part of the activity of the local authority.
+The foster parents were not, in his view, under the control of the local authority to any material degree.
+In agreement with the majority of the Supreme Court of Canada in KLB v British Columbia [2003] 2 SCR 403, he considered the lack of control to be decisive.
+In his view, the local authority not only did not have control over the foster parents, whether to direct what they did or how they did it, but it was essential to the whole concept of foster parenting that the local authority should not have that control.
+The foster parents role was to provide family life, bringing up the child as a member of their own family.
+That was only possible if a foster parent enjoyed independence from direction by the local authority and autonomy to determine how the child should be parented.
+In relation to the case based on a non delegable duty, the judge found that the five features identified by Lord Sumption in Woodland v Essex County Council [2013] UKSC 66; [2014] AC 537, para 23 were all present.
+First, the claimant was a child who was in care.
+Secondly, the relationship between the parties existed before the acts of abuse: it was created by a care order, and gave rise to statutory responsibilities.
+Thirdly, the claimant had no control over how the local authority chose to perform its obligations.
+Fourthly, the local authoritys duty to care for the child was delegated to the foster parents: it was they who exercised the day to day care of the child.
+Fifthly, the foster parents tortious conduct had been committed in the performance of the very function delegated to them.
+In that regard, the judge rejected a contention that a non delegable duty could be breached only by negligence, and not by the commission of an intentional tort.
+The judge, however, interpreted Woodland as imposing a separate Caparo like criterion, to be considered as a second stage of the analysis, and which must also be satisfied (Caparo Industries plc v Dickman [1990] 2 AC 605).
+Applying that approach, he concluded that the imposition of a non delegable duty on the local authority would not be fair, just and reasonable.
+He gave a number of reasons for reaching that conclusion, including the following.
+First, it would impose an unreasonable financial burden on local authorities providing a critical public service.
+Funds used to compensate the victims of historical abuse would not be available to meet current needs.
+There would also be a significant financial impact on local authorities in terms of recruitment practices, training requirements and supervision, all of which might become more intensive.
+Those factors could affect the capacity of local authorities to maintain the provision of foster care resources.
+Financial compensation was in any event an unsatisfactory form of recompense for abuse.
+Secondly, there was a real danger that the imposition of a non delegable duty would discourage local authorities from placing children with foster parents, even where reasonable steps had been taken to ensure their suitability.
+Thirdly, it was inherent in foster care placements that the local authority did not have the same control over the day to day lives of the children as they had over children in residential homes.
+That was a benefit to the children in foster care and was necessary in order to give them the experience of family life which was the purpose of fostering.
+Fourthly, it would be difficult to draw a principled distinction between liability for abuse committed by foster parents and liability for abuse committed by others with whom a local authority decided to place a child, including her own parents.
+An appeal against the judges decision was dismissed by the Court of Appeal: [2015] EWCA Civ 1139; [2016] QB 739.
+In relation to vicarious liability, Tomlinson LJ considered that the local authority did not exercise sufficient control over the foster parents for vicarious liability to arise.
+The provision of family life could not be part of the activity of the local authority or of the enterprise upon which they were engaged, because inherent in it was a complete absence of external control over day to day family routine.
+The control retained by the local authority was at the higher or macro level, as opposed to micro management of the day to day family environment (para 15).
+It was therefore irrelevant to the risk of abuse occurring during the unregulated course of life in the foster home (ibid).
+Black LJ also rejected the imposition of vicarious liability, for similar reasons, and Burnett LJ agreed with both judgments on this issue.
+The argument for a non delegable duty was also rejected, although each of the members of the Court of Appeal gave different reasons for their conclusion.
+Tomlinson LJ noted that a non delegable duty must relate to a function which the local authority had assumed a duty to perform.
+Fostering was not a function which the local authority could perform: it must be entrusted to others.
+By placing the child with foster parents, the local authority discharged rather than delegated their duty under section 21 of the 1980 Act to provide accommodation and maintenance for a child in their care (paras 23 24).
+Burnett LJ, on the other hand, considered that the relevant duty was the duty of the local authority to care for the child: to promote her welfare and to protect her from harm, so far as reasonably practicable (para 30).
+If, applying the principles summarised in the Christian Brothers case, there was no vicarious liability for an assault upon a child in care, then in his view the common law should not impose liability via the route of a non delegable duty (para 34).
+He also doubted whether a claim for breach of a non delegable duty could arise in consequence of an intentional wrong (paras 36 37).
+In relation to these matters, he cited the decision of the High Court of Australia in State of New South Wales v Lepore [2003] HCA 4; 212 CLR 511.
+Furthermore, he considered that section 10 of the 1980 Act, in tying the powers and duties of the local authority to those of a parent or guardian, was incompatible with the imposition of a non delegable duty of the kind contended for: parents who let their children stay away from home could not sensibly be fixed with liability for an assault on the basis of a non delegable duty (para 41).
+In addition, he agreed with the judges reasoning in relation to the Caparo rubric, treated as a separate issue.
+Black LJ was in broad agreement with the judge.
+She considered that the local authority delegated to the foster parents the obligation to care for the claimant as a parent or guardian would, which was an integral part of the positive duty which they had assumed towards her (para 55).
+Like the judge, however, she also considered that it would not be fair, just or reasonable to impose a non delegable duty on the local authority.
+In that regard, in addition to the resource implications of the imposition of strict liability for torts committed by foster parents, she also emphasised the risk that local authorities would be reluctant to place children in their care with foster parents, or with their own parents, if a non delegable duty were imposed (paras 62 63).
+Like Burnett LJ, she noted that the duties of local authorities were assimilated by section 10(2) of the 1980 Act to those of parents, and observed that parents were not subject to a non delegable duty (para 64).
+Unlike Burnett LJ, she did not treat the absence of vicarious liability as bearing on the question whether there was a non delegable duty, and she questioned the idea that a non delegable duty could not be breached by deliberate wrongdoing (para 59).
+The priority of the issues
+Liability in tort normally depends on the breach of a duty owed by the defendant to the claimant.
+The only true exception to that principle under the common law is vicarious liability, where for reasons of policy the defendant is held liable for the breach of a duty owed to the claimant by a third party.
+There cannot, however, be any rationale for imposing vicarious liability on a defendant where he is directly liable for the harm caused by the third party.
+It therefore makes sense to consider the scope of the defendants own duties before considering whether vicarious liability may exist.
+Non delegable duties of care
+The expression non delegable duties of care is commonly used to refer to duties not merely to take personal care in performing a given function but to ensure that care is taken.
+The expression thus refers to a higher standard of care than the ordinary duty of care.
+Duties involving this higher standard of care are described as non delegable because they cannot be discharged merely by the exercise of reasonable care in the selection of a third party to whom the function in question is delegated.
+Tortious liabilities based not on personal fault but on a duty to ensure that care is taken are exceptional, and have to be kept within reasonable limits.
+Yet there are some well known examples: it is well established that employers have a duty to ensure that care is taken to provide their employees with a safe system of work, that hospitals have a duty to ensure that care is taken, in the treatment of their patients, to protect their health, and that schools have a duty to ensure, in the education of their pupils, that care is taken to protect their safety.
+The question which arises in the present case is whether local authorities have an analogous duty to ensure that care is taken, in the upbringing of children in their care, to protect their safety.
+In the Woodland case, Lord Sumption identified two broad categories of case in which a non delegable duty of care has been held to arise.
+The first was a large, varied and anomalous class of cases in which the defendant employs an independent contractor to perform some function which is either inherently hazardous or liable to become so in the course of his work (para 6).
+The present case does not fall within that category.
+The second broad category was said to comprise cases where the common law imposed a duty which had three critical characteristics.
+First, the duty arises because of an antecedent relationship between the defendant and the claimant.
+Secondly, the duty is a positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply a duty to refrain from acting in a way that foreseeably causes injury.
+Thirdly, the duty is by virtue of that relationship personal to the defendant (para 7).
+Lord Sumption went on to identify a number of characteristic features of cases in the second category.
+These included the assumption by the defendant of a positive duty to protect the claimant from harm, and the delegation by the defendant to a third party of some function which is an integral part of the positive duty which he has assumed towards the claimant (para 23).
+In such a situation, the defendant may delegate the performance of the function, but he remains under a duty to ensure that the function is performed and that, in doing so, care is taken to protect the claimant from harm.
+It follows, as Lord Sumption explained, that in the absence of negligence of their own, for example in the selection of contractors, [the defendants] will not be liable for the negligence of independent contractors where on analysis their own duty is not to perform the relevant function but only to arrange for its performance (para 25).
+Lord Sumption described the five features he had identified as criteria (ibid).
+He stated that a non delegable duty of care should be imputed to schools [with which the case was concerned] only so far as it would be fair, just and reasonable to do so, but added that he did not accept that any unreasonable burden would be cast on them by recognising the existence of a non delegable duty on the criteria which I have summarised above (ibid).
+Lady Hale agreed that the principle [of personal liability for the breach of a non delegable duty] will apply in the circumstances set out by Lord Sumption . subject of course to the usual provisos that such judicial statements are not to be treated as if they were statutes and can never be set in stone (para 38).
+She also agreed with Lord Sumption that recognising the existence of a non delegable duty in the circumstances described above would not cast an unreasonable burden on the service providers (para 40).
+The five criteria set out by Lord Sumption were thus intended to identify circumstances in which the imposition of a non delegable duty was fair, just and reasonable.
+It is important to bear in mind Lady Hales cautionary observation that such judicial statements are not to be treated as if they were statutes, and can never be set in stone.
+Like other judicial statements, the criteria articulated by Lord Sumption may need to be re considered, and possibly refined, in particular contexts.
+That does not, however, mean that it is routinely necessary for the judge to determine what would be fair and just as a second stage of the analysis.
+As was made clear by this court in Cox v Ministry of Justice [2016] UKSC 10; [2016] AC 660, para 41, in relation to vicarious liability, having recourse to a separate inquiry into what is fair, just and reasonable is not only unnecessarily duplicative, but is also apt to give rise to uncertainty and inconsistency.
+The critical question, in deciding whether the local authority were in breach of a non delegable duty in the present case, is whether the function of providing the child with day to day care, in the course of which the abuse occurred, was one which the local authority were themselves under a duty to perform with care for the safety of the child, or was one which they were merely bound to arrange to have performed, subject to a duty to take care in making and supervising those arrangements.
+Although Lord Sumption focused upon situations in which a non delegable duty of care was deemed to have been assumed voluntarily, it is of course possible for the necessary relationship to be created by statute.
+It is a familiar aspect of the legislation governing safety at work, for example, that duties are laid on employers which they cannot escape by employing competent contractors.
+But everything turns on the particular statute.
+The point is illustrated by the decision of the Court of Appeal in Myton v Woods (1980) 79 LGR 28, where a claim was made against a local education authority for the negligence of a taxi firm employed by the authority to drive children to and from school.
+The authority had no statutory duty to transport children, but only to arrange and pay for it.
+The claim was therefore dismissed.
+Lord Denning MR said at p 33 that the authority was not liable for an independent contractor except he delegates to the contractor the very duty which he himself has to fulfil.
+That decision was approved in the Woodland case.
+One could similarly ask in the present case whether the local authority had a statutory duty to provide the children with day to day care, or only to arrange, supervise and pay for it.
+Discussion
+An appropriate starting point is section 10 of the 1980 Act.
+As was explained earlier, section 10(1) requires a local authority to whose care a child is committed by a care order to receive the child into their care and . to keep him in their care while the order . is in force.
+Section 10(2) provides that a local authority shall, subject to the following provisions of this section, have the same powers and duties with respect to a person in their care by virtue of a care order . as his parent or guardian would have apart from the order .
+None of the subsequent provisions of section 10 bears on the present issue.
+Section 10 thus confers or imposes upon a local authority, in relation to a child who is in their care by virtue of a care order, the powers and duties which a parent or guardian would have by virtue of their relationship to a child of which they were the parent or guardian: that is to say, the powers and duties which they have by reason of their status.
+Those powers and duties are many and various.
+They include, for example, the power to consent to medical treatment on behalf of a child below the age of capacity.
+Perhaps most relevantly in the present context, they include the general duty to safeguard and promote the childs health, development and welfare, and the right to direct, control or guide the childs upbringing.
+Should these parental powers and duties be construed as imposing a tortious duty not merely to take care for the safety of the child, but to ensure that care is taken?
+There is ample authority that the duty of a parent, or of a person exercising temporary care of a child in loco parentis, is a duty to take reasonable care.
+For example, in Carmarthenshire County Council v Lewis [1955] AC 549, concerned with a nursery teacher, Lord Reid stated at p 566: There is no absolute duty; there is only a duty not to be negligent, and a mother is not negligent unless she fails to do something which a prudent or reasonable mother in her position would have been able to do and would have done.
+More recently, in Harris v Perry [2008] EWCA Civ 907; [2009] 1 WLR 19, concerned with parents holding a birthday party attended by other peoples children, the Court of Appeal held at para 19 that the relevant standard of care was that which a reasonably careful parent would show for her own children (see also Surtees v Royal Borough of Kingston upon Thames [1991] 2 FLR 559, concerned with a foster parent).
+On the other hand, there are no authorities suggesting that parents, or persons with analogous responsibilities, must not merely take personal care for their childrens safety, but must ensure that reasonable care is taken by anyone else to whom the safety of the children may be entrusted.
+There are good reasons for adopting that approach in a domestic setting.
+If parents both wish to work, they may have to place their child in a nursery, or employ a nanny.
+If they wish to maintain a social life, they may have to entrust their children to babysitters.
+Their children may stay with friends overnight, or with their grandparents in the holidays.
+If, notwithstanding the exercise of reasonable care by the parents, the law of tort were to hold them liable if their child were injured because of a lack of care on the part of the nanny or the babysitter, or if the child were abused by a friend or a grandparent, that would be liable to interfere with ordinary aspects of family life which are often in the best interests of children themselves.
+Local authorities are in a different position from parents, or other individuals having temporary care and control of children, in a variety of ways.
+For example, as Lord Hutton observed in Barrett v Enfield London Borough Council [2001] 2 AC 550, 587 588, a local authority employs trained staff to make decisions and to advise it (see also Surtees at pp 123 124 per Sir Nicolas Browne Wilkinson V C).
+That fact, however, forms part of the context in which the question whether reasonable care was taken must be answered: it does not entail that a different duty altogether should be imposed.
+Although there are differences between the position of local authorities and that of parents, children in care have the same needs as other children.
+In particular, it may be in their best interests to spend time staying with their parents or grandparents, or with other relatives or friends.
+That is specifically permitted by section 21(2) of the 1980 Act, as explained earlier.
+Furthermore, in deciding whether to exercise their power under section 21(2), the local authority are required by section 18(1) to give first consideration to the need to safeguard and promote the welfare of the child throughout his childhood, and, so far as practicable, to ascertain the wishes and feelings of the child regarding the decision and give due consideration to them.
+If, however, local authorities which reasonably decided that it was in the best interests of children in care to allow them to stay with their families or friends were to be held strictly liable for any want of due care on the part of those persons, the law of tort would risk creating a conflict between the local authoritys duty towards the children under section 18(1) and their interests in avoiding exposure to such liability.
+Furthermore, since a non delegable duty would render the local authority strictly liable for the tortious acts of the childs own parents or relatives, if the child was living with them following a decision reasonably taken under section 21(2), the effect of a care order, followed by the placement of the child with his or her family, would be a form of state insurance for the actions of the childs family members (and, indeed, their friends, relatives and babysitters, if the child were left with them).
+Section 21 is also relevant in another respect.
+As explained earlier, section 21(1) requires the local authority to discharge their duty to provide accommodation and maintenance for a child in their care in whichever of the specified ways they think fit, or by making such other arrangements as seem appropriate to the local authority.
+The specified ways include boarding him out on such terms as to payment by the authority and otherwise as the authority may . determine.
+The implication of the word discharge is that the placement of the child constitutes the performance of the local authoritys duty to provide accommodation and maintenance.
+It follows that the local authority do not delegate performance of that duty to the persons with whom the child is placed.
+This is difficult to reconcile with the idea that, when the foster parents provide daily care to the child placed with them, they are performing a function which remains incumbent on the local authority.
+That is not to say that the local authority are absolved of all responsibility: on the contrary, they remain subject to numerous duties towards the child in their care, some of which will be considered shortly.
+Nevertheless, in the language used by Lord Sumption in Woodland (para 25), this suggests that the duty of the local authority is not to perform the function in the course of which the claimant was abused (namely, the provision of daily care), but rather to arrange for, and then monitor, its performance.
+Section 22 is also relevant.
+As explained earlier, it enables the Secretary of State to make regulations imposing duties on local authorities in relation to the approval of households where children are boarded out, the inspection and supervision of the premises where they are boarded out, and the removal of the children from the premises if their welfare appears to require it.
+As McLachlin CJ observed in a similar context in the Canadian case of KLB v British Columbia at para 36, it might be thought that there would be no need to set out in regulations a catalogue of duties with respect to placement and supervision which are incumbent on the local authority, if they were in any event responsible for all the wrongs that might befall children in foster care.
+The implication of section 22 is rather that the continuing responsibility of the local authority for the care of the child, in accordance with section 10, is discharged in relation to the boarding out of children by means of prior approval of the households in which they are placed, and subsequent inspection, supervision and removal if appropriate, in accordance with the relevant regulations.
+The objective of section 22, and of the regulations made under it, is to ensure that potential problems arising during a foster placement are avoided if possible by means of prior approval of the households involved, and that any problems subsequently arising are identified and addressed once they have become capable of observation by means of inspection and supervision.
+The statutory regime does not impose on the local authority any other responsibility for the day to day care of the child or for ensuring that no harm comes to the child in the course of that care.
+For all these reasons, I conclude that the proposition that a local authority is under a duty to ensure that reasonable care is taken for the safety of children in care, while they are in the care and control of foster parents, is too broad, and that the responsibility with which it fixes local authorities is too demanding.
+I therefore reach the same conclusion as the Court of Appeal on this aspect of the case, although for somewhat different reasons.
+In particular, I am unable to agree with Burnett LJs view that if, applying the principles in the Christian Brothers case, there is no vicarious liability for an assault upon a child in care, then the common law should not impose liability via the route of a non delegable duty.
+That, with respect, is to conflate two distinct legal doctrines with different incidents and different rationales, and to misunderstand the relationship between them.
+As explained earlier, it is the imposition of vicarious liability which is implicitly premised on the absence of direct liability.
+Nor am I able to agree that a non delegable duty cannot be breached by a deliberate wrong: see, for example, Morris v C W Martin & Sons Ltd [1966] 1 QB 716, a bailment case which was treated as a case of non delegable duty in Woodland, para 7.
+On Burnett LJs approach, the local authority would seemingly be liable if the foster parents negligently enabled a third party to abuse the child, but not if they abused her themselves.
+That can hardly be right.
+The judgment of the Privy Council in another bailment case, Port Swettenham Authority v T W Wu and Co [1979] AC 580, 591, is instructive: When, a bailee puts goods which have been bailed to him in the care of his servants for safe custody, there can be no doubt that the bailee is responsible if the goods are lost through any failure of those servants to take proper care of the goods .
+Cheshire v Bailey [1905] 1 KB 237 laid down the startling proposition of law that a master who was under a duty to guard anothers goods was liable if the servant he sent to perform the duty for him performed it so negligently as to enable thieves to steal the goods, but was not liable if that servant joined with the thieves in the very theft.
+This proposition is clearly contrary to principle and common sense, and to the law: Morris v C W Martin and Sons Ltd [1966] 1 QB 716,740.
+Their Lordships agree with the decision in Morris v C W Martin and Sons Ltd and consider that Cheshire v Bailey mis stated the common law.
+Vicarious liability
+The question whether local authorities are vicariously liable for torts committed by foster parents against children placed with them while in care was previously considered by the Court of Appeal in S v Walsall Metropolitan Borough Council [1985] 1 WLR 1150.
+Oliver LJ, giving an ex tempore judgment with which Balcombe LJ agreed, treated the critical question as being whether the foster parents were acting as the agents of the local authority.
+He concluded that they were not: the statutory scheme was entirely inconsistent with the notion that the foster parents are in any way the agents of the local authority in carrying out their duties (p 1155).
+On that basis, the claim was rejected.
+The approach adopted by the court treated vicarious liability as confined to particular legal relationships, such as employment and agency.
+A more fine grained approach has been adopted in more recent authorities, as will shortly be explained.
+The decision does not, therefore, provide a satisfactory guide to the resolution of the issue.
+Cox v Ministry of Justice
+The general principles governing the imposition of vicarious liability were recently reviewed by this court in Cox v Ministry of Justice.
+As was said there, the scope of vicarious liability depends upon the answers to two questions.
+First, what sort of relationship has to exist between an individual and a defendant before the defendant can be made vicariously liable in tort for the conduct of that individual? Secondly, in what manner does the conduct of that individual have to be related to that relationship in order for vicarious liability to be imposed? The present appeal, like the case of Cox, is concerned only with the first of those questions.
+It is conceded that, if the relationship between the local authority and the foster parent is one which can give rise to vicarious liability, then the abuse of the child is a tort for which vicarious liability is imposed.
+Under the doctrine of vicarious liability, the law holds a defendant liable for a tort committed by another person.
+Plainly, the doctrine can only apply where the relationship between the defendant and the tortfeasor has particular characteristics justifying the imposition of such liability.
+The classic example of such a relationship is that between employer and employee.
+As was explained in Cox and in the earlier case of the Christian Brothers, however, the doctrine can also apply where the relationship has certain characteristics similar to those found in employment, subject to there being a sufficient connection between that relationship and the commission of the tort in question.
+In Cox, reference was made to five incidents of the relationship between employer and employee which had been identified by Lord Phillips in the Christian Brothers case as usually making it fair, just and reasonable to impose vicarious liability, and which could properly give rise to vicarious liability where other relationships had the same incidents and could therefore be treated as akin to employment.
+They were: (i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employees activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; and (v) the employee will, to a greater or lesser degree, have been under the control of the employer.
+As was indicated in Cox, the weight to be attached to these various factors will vary according to the context.
+It was said that the first was unlikely to be of independent significance in most cases, although there might be circumstances in which the absence or unavailability of insurance, or some other means of meeting a potential liability, might be a relevant consideration.
+As explained below, that is an aspect of the present case.
+In relation to the fifth factor, it was said at para 21: The fifth of the factors that the tortfeasor will, to a greater or lesser degree, have been under the control of the defendant no longer has the significance that it was sometimes considered to have in the past, as Lord Phillips PSC immediately made clear.
+As he explained at para 36, the ability to direct how an individual did his work was sometimes regarded as an important test of the existence of a relationship of master and servant, and came to be treated at times as the test for the imposition of vicarious liability.
+But it is not realistic in modern life to look for a right to direct how an employee should perform his duties as a necessary element in the relationship between employer and employee; nor indeed was it in times gone by, if one thinks for example of the degree of control which the owner of a ship could have exercised over the master while the ship was at sea.
+Accordingly, as Lord Phillips PSC stated, the significance of control is that the defendant can direct what the tortfeasor does, not how he does it.
+The three remaining factors were that (1) the tort will have been committed as a result of activity being taken by the tortfeasor on behalf of the defendant, (2) the tortfeasors activity is likely to be part of the business activity of the defendant, and (3) the defendant, by employing the tortfeasor to carry on the activity, will have created the risk of the tort committed by the tortfeasor.
+It was explained in Cox that those factors are inter related, and reflect the principal justifications which have been put forward in our law for the imposition of vicarious liability: The first has been reflected historically in explanations of the vicarious liability of employers based on deemed authorisation or delegation, as for example in Turberville v Stampe (1697) 1 Ld Raym 264, 265, per Holt CJ and Bartonshill Coal Co v McGuire (1858) 3 Macq 300, 306, per Lord Chelmsford LC.
+The second, that the tortfeasors activity is likely to be an integral part of the business activity of the defendant, has long been regarded as a justification for the imposition of vicarious liability on employers, on the basis that, since the employees activities are undertaken as part of the activities of the employer and for its benefit, it is appropriate that the employer should bear the cost of harm wrongfully done by the employee within the field of activities assigned to him: see, for example, Duncan v Findlater (1839) 6 Cl & Fin 894, 909 910; MacL & Rob 911, 940, per Lord Brougham and Broom v Morgan [1953] 1 QB 597, 607 608, per Denning LJ .
+The essential idea [of the third factor] is that the defendant should be liable for torts that may fairly be regarded as risks of his business activities, whether they are committed for the purpose of furthering those activities or not. (para 23) As the references to authority in that passage demonstrate, the approach adopted in Christian Brothers and Cox does not depart from the normative roots of the doctrine of vicarious liability, but provides guidance to assist in discerning circumstances in which the doctrine applies.
+The resultant position was summarised in Cox as follows: The result of this approach is that a relationship other than one of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the business activities carried on by a defendant and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to the individual in question. (para 24) As was explained, words such as business do not confine vicarious liability to activities of a commercial nature (para 30).
+That is apparent from Cox itself, which concerned a prison operated by the prison service, and from the Christian Brothers case, which concerned a religious organisation, as well as from many other cases concerned with hospitals and public authorities.
+The five factors in the present case
+Applying the approach adopted in Cox to the circumstances of the present case, and considering first the relationship between the activity of the foster parents and that of the local authority, the relevant activity of the local authority was the care of children who had been committed to their care.
+They were under a statutory duty to care for such children.
+In order to discharge that duty, insofar as it involved the provision of accommodation, maintenance and daily care, they recruited, selected and trained persons who were willing to accommodate, maintain and look after the children in their homes as foster parents, and inspected their homes before any placement was made.
+They paid allowances to the foster parents in order to defray their expenses, and provided the foster parents with such equipment as might be necessary.
+They also provided in service training.
+The foster parents were expected to carry out their fostering in cooperation with local authority social workers, with whom they had at least monthly meetings.
+The local authority involved the foster parents in their decision making concerning the children, and required them to co operate with arrangements for contact with the childrens families.
+In the light of these circumstances, the foster parents with which the present case is concerned cannot be regarded as carrying on an independent business of their own: such a characterisation would fail to reflect many important aspects of the arrangements.
+Although the picture presented is not without complexity, nevertheless when considered as a whole it points towards the conclusion that the foster parents provided care to the child as an integral part of the local authoritys organisation of its child care services.
+If one stands back from the minutiae of daily life and considers the local authoritys statutory responsibilities and the manner in which they were discharged, it is impossible to draw a sharp line between the activity of the local authority, who were responsible for the care of the child and the promotion of her welfare, and that of the foster parents, whom they recruited and trained, and with whom they placed the child, in order for her to receive care in the setting which they considered would best promote her welfare.
+In these circumstances, it can properly be said that the torts committed against the claimant were committed by the foster parents in the course of an activity carried on for the benefit of the local authority.
+Considering next the issue of risk creation, the local authoritys placement of children in their care with foster parents creates a relationship of authority and trust between the foster parents and the children, in circumstances where close control cannot be exercised by the local authority, and so renders the children particularly vulnerable to abuse.
+Although it is generally considered to be in the best interests of children in care that they should be placed in foster care, since most children benefit greatly from the experience of family life, it is relevant to the imposition of vicarious liability that a particular risk of abuse is inherent in that choice.
+That is because, if the public bodies responsible for decision making in relation to children in care consider it advantageous to place them in foster care, notwithstanding the inherent risk that some children may be abused, it may be considered fair that they should compensate the unfortunate children for whom that risk materialises, particularly bearing in mind that the children are under the protection of the local authority and have no control over the decision regarding their placement.
+In that way, the burden of a risk borne in the general interest is shared, rather than being borne solely by the victims.
+So far as the issue of control is concerned, it was explained earlier that the local authority selected foster parents and inspected their homes prior to the placement of children with them.
+The local authority were required under the Regulations to arrange regular medical examinations of fostered children, to ensure that the children were regularly visited, to carry out regular reviews of their welfare, health, conduct and progress, and to remove them from the foster parents forthwith if the visitor considered that their health, safety or morals were endangered.
+It was also explained that foster parents had to agree that they would allow the children to be medically examined at such times and places as the local authority might require, that they would inform the local authority immediately of any serious occurrence affecting the children, that they would at all times permit any person authorised by the local authority to see the children and to visit their home, and that they would allow the children to be removed from their home when so requested by any person authorised by the local authority.
+It was explained that a number of aspects of the lives of children in foster care were decided by the local authority, reflecting the fact that it was the local authority, not the foster parents, which possessed parental powers in relation to the children.
+The arrangements made in practice for the monitoring of placements were described earlier.
+Accordingly, although the foster parents controlled the organisation and management of their household to the extent permitted by the relevant law and practice, and dealt with most aspects of the daily care of the children without immediate supervision, it would be mistaken to regard them as being in much the same position as ordinary parents.
+The local authority exercised powers of approval, inspection, supervision and removal without any parallel in ordinary family life.
+By virtue of those powers, the local authority exercised a significant degree of control over both what the foster parents did and how they did it, in order to ensure that the childrens needs were met.
+In relation to the remaining issue, that of the ability to satisfy an award of damages, vicarious liability is only of practical relevance in situations where (1) the principal tortfeasor cannot be found or is not worth suing, and (2) the person sought to be made vicariously liable is able to compensate the victim of the tort.
+Those conditions are satisfied in the present context.
+Most foster parents have insufficient means to be able to meet a substantial award of damages, and are unlikely to have (or to be able to obtain) insurance against their own propensity to criminal behaviour.
+The local authorities which engage them can more easily compensate the victims of injuries which are often serious and long lasting.
+Consideration of the factors discussed in Cox therefore points towards the imposition of vicarious liability.
+What, then, of the reasons given by the Court of Appeal for reaching the opposite conclusion (prior, it should be said, to the decision in Cox)? As was explained earlier, Tomlinson LJ rejected vicarious liability principally on the basis that the local authority did not exercise sufficient control over the foster carers.
+The provision of family life by definition could not be an activity of a local authority or part of the enterprise on which it was engaged, since inherent in it was a complete absence of external control over day to day routine.
+The local authoritys control was at the higher or macro level, rather than micro management.
+Control at that level was irrelevant to the risk of abuse occurring.
+Black LJ similarly considered that the provision of the experience of family life through fostering precluded the degree of control required for the imposition of vicarious liability.
+Burnett LJ agreed with both judgments.
+It is important not to overstate the extent to which external control was absent from the fostering with which this case is concerned, as explained earlier.
+The local authority controlled who the foster parents were, supervised their fostering, and controlled some aspects of day to day family life, such as holidays and medical treatment.
+More fundamentally, it is important not to exaggerate the extent to which control is necessary in order for the imposition of vicarious liability to be justified.
+The possibility that vicarious liability may arise in relation to the provision of elements of family life is consistent with such cases as Lister v Hesley Hall Ltd [2001] UKHL 22; [2002] 1 AC 215, where vicarious liability was imposed for the abuse of children by the warden of a school boarding house, and the Canadian case of Bazley v Curry [1999] 2 SCR 534, where it was imposed for abuse committed by a father figure employed to perform parental tasks at a childrens home.
+It is not necessary for there to be micro management, or any high degree of control, in order for vicarious liability to be imposed.
+There are countless cases where vicarious liability has been imposed for torts committed by professional persons who carry out their work without close supervision.
+The example was also given in Cox of a ship at sea in the age before modern communications, where the owner could exercise little control over the master employed by him.
+Recent examples of vicarious liability being imposed in the absence of micro management include E v English Province of Our Lady of Charity [2013] QB 722, where the relationship between a Roman Catholic priest and his diocesan bishop was sufficient, and the Christian Brothers case, where liability was imposed on a religious association for a tort committed by one of its members while working for a third party.
+The Court of Appeals analysis, like that of the judge, was influenced by the reasoning of the majority of the Supreme Court of Canada in the case of KLB v British Columbia.
+That reasoning emphasised that the degree of control which could be exercised over foster parents was insufficient to prevent abuse from taking place, and that the imposition of vicarious liability would not result in the deterrence of such abuse.
+On the other hand, it was said, it might discourage the use of foster care in favour of residential care: an alternative which would be less effective in promoting the welfare of children.
+It is unfortunate that the Court of Appeal does not appear to have been referred to the case of S v Attorney General [2003] NZCA 149; [2003] 3 NZLR 450, where the New Zealand Court of Appeal unanimously reached the opposite conclusion.
+Vicarious liability was imposed in circumstances similar to those of the present case, the view being taken that policy considerations supported its imposition.
+The decision of the Canadian court in KLB reflects the view taken in that jurisdiction that the deterrence of tortious behaviour is one of the principal justifications for the imposition of vicarious liability: see Bazley v Curry.
+Although the decision in that case was endorsed by the House of Lords in Lister v Hesley Hall, their Lordships did not adopt the reasoning of the Canadian court: see at pp 230 (Lord Steyn), 237 (Lord Clyde), 238 (Lord Hutton), 242 (Lord Hobhouse of Woodborough), and 250 (Lord Millett).
+As explained earlier, a number of justifications for the imposition of vicarious liability have been advanced in the British case law, but deterrence has not been prominent among them (although it was advanced as a partial explanation by Pollock, Essays in Jurisprudence and Ethics (1882), p 130).
+It was not mentioned in either Christian Brothers or Cox.
+The most influential idea in modern times has been that it is just that an enterprise which takes the benefit of activities carried on by a person integrated into its organisation should also bear the cost of harm wrongfully caused by that person in the course of those activities.
+The idea that the imposition of vicarious liability might discourage local authorities from placing children in care with foster parents, and encourage them instead to place them in residential homes, is difficult to accept, even if one grants the premise that local authorities might be deterred by financial considerations from performing their statutory duty to promote the welfare of the children in their care.
+Local authorities are vicariously liable for the abuse of children by those whom they employ in residential care homes.
+There could therefore be an economic advantage, from the perspective of local authorities or their insurers, in placing children in local authority residential care rather than in foster homes, only if, assuming all other costs were equal, the incidence of abuse was lower in the former than in the latter.
+No evidence has been produced as to whether that is the position.
+Furthermore, other financial considerations would have to be taken into account: for example, one would expect the cost of care in a residential home to be much higher than the relatively modest payments to foster parents which were mentioned in this case.
+That would also be the answer if it were suggested that the imposition of vicarious liability could incentivise local authorities to place children in residential homes provided by private operators.
+Not only is private residential care more expensive than foster care, but the operators of residential care homes might be expected to pass on to the local authorities the costs arising from their own vicarious liability.
+If, on the other hand, there is substance in the floodgates arguments advanced on behalf of the local authority if, in other words, there has been such a widespread problem of child abuse by foster parents that the imposition of vicarious liability would have major financial and other consequences then there is every reason why the law should expose how this has occurred.
+It may be although this again is empirically untested that such exposure, and the risk of liability, might encourage more adequate vetting and supervision.
+It is all very well to point to the cost of such precautions, and to the cost of compensating the victims, and to complain that this will divert the resources of local authorities from other channels.
+That is a point which might be made in relation to many claims against public bodies, including claims against local authorities arising from the abuse of children in residential homes.
+As the New Zealand Court of Appeal pointed out in S v Attorney General at paras 71 72, there is also a considerable cost to society if appropriate mechanisms are not put in place to protect vulnerable children.
+As they noted, the victims of abuse commonly experience a range of long term emotional and behavioural problems, are disproportionately represented both in the criminal justice system and in users of mental health services, often need to receive state benefits because they are unable to take up employment, and are often entitled to compensation from public funds under the criminal injuries compensation scheme.
+More fundamentally, the problem with the resources argument is that, if it is accepted, the greater the problem, the less likely there is to be a remedy.
+There remain the concerns raised by Lord Hughes.
+The first is that the imposition of vicarious liability for the torts committed by the foster parents in the present case would logically entail vicarious liability for torts committed at the present time by parents and other family members with whom a child is placed.
+It is important to emphasise that the decision that vicarious liability should be imposed in the present case is based on a close analysis of the legislation and practice which were in force at the relevant time, and a balancing of the relevant factors arising from that analysis, some of which point away from vicarious liability, but the preponderance of which support its imposition.
+Applying the same approach, vicarious liability would not have been imposed if the abuse had been perpetrated by the childs parents, if the child had been placed with them, since the parents would not have stood in a relationship with the local authority of the kind described in Cox: even if their care of the child might be described as having been approved by the local authority, and was subject to monitoring and might be terminated, nevertheless they would not have been recruited, selected or trained by the local authority so as to enable it to discharge its child care functions.
+They would have been carrying on an activity (raising their own child) which was much more clearly distinguishable from, and independent of, the child care services carried on by the local authority than the care of unrelated children by foster parents recruited for that purpose.
+It would not be appropriate in this appeal to address the situation under the law and practice of the present day, on which the court has not been addressed, and which would also require a detailed analysis.
+It is sufficient to say that, for the reasons explained by Lord Hughes, the court would not be likely to be readily persuaded that the imposition on a local authority of vicarious liability for torts committed by parents, or perhaps other family members, was justified.
+The other concern raised by Lord Hughes is that, in relation to claims of negligence, it is undesirable that the courts should impose unduly exacting standards in the context of family life.
+Lord Hughes refers in that regard to observations made by Sir Nicolas Browne Wilkinson V C in Surtees v Kingston on Thames Borough Council at p 583, cited with approval by Lord Hutton in Barrett v Enfield Borough Council.
+The case of Surtees itself concerned alleged negligence on the part of a foster parent.
+The Vice Chancellors observations in that case would be equally relevant in a case where a local authority was alleged to be vicariously liable for negligence on the part of a foster parent: the local authority can only be vicariously liable in such a case if, in the first place, the foster parent has herself been negligent.
+Nothing in the present judgment diminishes the force of the Vice Chancellors observations in Surtees (even if the decision in that case might not be considered equally persuasive).
+Conclusion
+For these reasons I would allow the appeal, and hold that the local authority are vicariously liable for the torts committed by the foster parents in this case.
+LORD HUGHES: (dissenting)
+I respectfully agree with the judgment of Lord Reed as to the possibility of the local authority being under a non delegable duty imposing liability in a case such as this.
+Liability under a non delegable duty is, in effect, a liability to guarantee that others provide all reasonable care and, it may well follow, abstain from deliberate tortious behaviour.
+A local authority, in relation to children whom it is looking after, is put by statute into a position analogous to that of a parent.
+A parent does not owe to his or her children an obligation to guarantee that others whom he may ask to help in the management or care of the children will not be careless or deliberately abusive.
+Nor does a local authority.
+I have found the debate about vicarious liability a good deal more difficult.
+It is plain from recent cases, from Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 (the Christian Brothers case) to Cox v Ministry of Justice [2016] UKSC 10 that the principles which have long recognised vicarious liability in consequence of employment can apply equally to other relationships.
+Adopting the helpful analysis of Lord Reed in Cox, it follows that those principles can apply to relationships which not only are not employment but which it is difficult to describe as akin to employment.
+Although it is not the only factor, the essential minimum for vicarious liability is that the tortfeasor is acting as an integral part of the defendants enterprise, which need not only be a commercial enterprise: see para 24 of Cox.
+So the question whether vicarious liability should attach to the local authority in relation to the acts and omissions of foster parents is not wholly answered by the fact that they are clearly not employees and nor can they sensibly be described as akin to employees; they look, if the business model is to be used, a great deal more like independent contractors, carefully selected and supervised as many a panel of such contractors is.
+Lord Phillipss five policy factors or incidents (Christian Brothers paras 35 and 47) were derived by him from the primary model of vicarious liability, namely employment.
+As this court held in Cox (at paras 41 and 42), if these incidents exist, it will usually not be necessary to embark on a separate analysis of whether it is fair, just and reasonable to impose vicarious liability, but the five factors cannot be applied mechanically.
+An overall view of the justice, fairness and reasonableness of imposing vicarious liability may still be necessary.
+In the present case, the third factor (business activity) does not apply.
+The first (deep pockets or insurance), as Lord Reed explained in Cox at para 20, cannot by itself be a principled ground for vicarious liability and tends to be circular.
+The fourth (creation of risk) will in practice apply to virtually all situations in which A asks or authorises B to deal in some manner with C. The principally relevant factors here would seem to be factors 2 (integration), and 5 (control).
+If one focuses on those factors, it is certainly possible, and maybe initially tempting, to conclude that they point towards vicarious liability.
+There can be no doubt that foster parents undertake their care of children as part of a scheme administered by the local authority.
+Some important decisions remain ones which the local authority itself takes.
+There is careful pre authorisation and continuing monitoring.
+National standards have been promulgated by the Department for Education, dealing with matters as disparate as records to be kept of medical treatment, the desirability of separate bedrooms for each child over three years old unless that is not practicable, and the principle that children should be permitted to take part in leisure activities as a reasonable parent would allow and (nowadays) that they should be permitted school trips, holidays and overnight stays with friends at the discretion of the foster parents: Fostering Services; National Minimum Standards (DfE 2011) 6.11, 10.6, 7.5 and 7.7.
+The authority can remove the child at any time.
+As Lord Reed explained in Cox, the minutiae of micro managerial control have always been absent from the employment of specialists without removing vicarious liability.
+So the fact that the essence of fostering is that the foster parents bring up the children as integrated members of their own family, without managerial instructions as to how the family is to be organised, who has responsibility for what, or how relationships are to be allowed to develop is not by itself fatal to the imposition of vicarious liability, although it tends to point away from it.
+There is also considerable force at first sight in the proposition that if the authority would be vicariously liable for a tort committed against the child by its employee in a childrens home, it seems fair for the same to apply to a tort committed by a foster parent.
+However, when one looks in greater detail at the legal and practical shape of fostering, the position becomes a good deal less clear.
+Although the present case arises in the context of the regime under the Children and Young Persons Act 1969, the Child Care Act 1980 and the 1955 Boarding Out Regulations, it is instructive to consider also the present regime.
+The latter does not alter the fundamental nature of fostering, but it does make explicit some things which were matters of practice in earlier times, and it illustrates where vicarious liability would take the law.
+There is, and always has been in modern times, a spectrum of situations in which the childrens services of a local authority may concern themselves with the welfare of children and families in their area, and in particular with where the children should live.
+First, if a family is in difficulty, the authoritys childrens social workers will offer advice and assistance, and sometimes may give financial help.
+Such advice and assistance may well result in children living for long or short periods with other members of the extended family or with friends.
+The local authority is not formally accommodating them, but it may broker the arrangement and will typically monitor it carefully; sometimes it may be clear that if such an arrangement is not made, or does not work satisfactorily, the authority will consider invoking its formal powers.
+Next, in other situations, the local authority may accept responsibility for accommodating the child with the voluntary (if sometimes reluctant) agreement of the parent(s).
+Thirdly, the authority is under an obligation under section 20 of the Children Act 1989 to provide accommodation for any child in its area who is in need, as there defined, chiefly where the family is unable to provide suitable accommodation or care.
+Fourthly, if satisfied that it is the only way to safeguard the childs welfare and if the statutory test of risk of significant harm is met (section 31), the local authority may seek a care order from the court, which has the effect of vesting it with parental responsibility.
+There are other routes also by which children may be accommodated by the authority, for example where the police ask it to take children who have been removed from where they were found, or who have been arrested.
+Children in each of the second, third and fourth situations are known, now, in the legislation as looked after children: section 22 Children Act 1989.
+The statute does not distinguish between those who are in compulsory care and those who are voluntarily accommodated when it deals with how they are to be accommodated.
+Section 22C provides for all of them.
+It identifies a category of potential providers of accommodation who are relatives, friends, and so on; such people are now conveniently referred to as connected persons.
+In all cases, the combined effect of 22C(2) to (7) is that first priority is given to the child being placed, if it is consistent with his welfare and practicable, with a parent or person to whom residence had been given by a family court.
+Failing that, accommodation may be provided by way of (1) fostering by a connected person who is a local authority foster carer, (2) fostering by a local authority foster parent who is not a connected person, (3) a childrens home or (4) some other placement within Regulations made under the Act.
+The expression Local authority foster parent, as used in both the statute and Regulations made under it, means a foster parent authorised as such under regulations made under the Act: section 105.
+The approval of foster carers is governed by regulations, currently the Fostering Services (England) Regulations 2011 (SI 2011/581) (The Fostering Services Regulations).
+It may be accomplished either by local authorities or by registered Fostering Agencies.
+Approval is normally given for a stated number of children.
+Although at the time of the events giving rise to the present case, one of the foster homes was a family group home, where up to 13 or 14 children were living at a time, nowadays the ordinary limit on fostering is three children at a time, unless a larger group of siblings needs to stay together: Children Act 1989, Schedule 7.
+In selecting the placement, the local authority is required to give priority, if possible, to accommodation with connected persons.
+That framework reflects a well established tenet of child support work that where it is not contra indicated, a child is better cared for in his or her own family than by strangers.
+The way that this is in practice effected is for placements to be made within the family where possible.
+As the foregoing summary of the Act makes clear, such placements still require the approval as Local authority foster parents of connected persons unless they are either parents, or persons with parental responsibility, or beneficiaries of a court residence order.
+That is confirmed by the Regulations made under the Act, the Care Planning Placement and Care Review Regulations 2010 (SI 2010/959) (the Care Planning etc Regulations), which, however, provide by regulation 25 for temporary authorisation of connected persons for a limited period pending approval as local authority fosterers.
+Once such in family placements are with approved local authority connected foster parents, the same raft of regulations applies to them as to placements with the kind of foster parents who are willing to take any children whom the authority may wish to place with them.
+The supervision and monitoring which must be undertaken by the local authority is the same.
+The Authority must in all such cases, as in others, prepare a care plan under regulation 4 of the Care Planning etc Regulations.
+There must be the same Independent Reviewing Officer, specific to each placement, as required by section 25A Children Act.
+The Authority pays allowances to connected person foster parents, who are entitled to be paid at the same rates as other foster parents: see R (X) v London Borough of Tower Hamlets [2013] EWCA 504 and Fostering Services; National Minimum Standards (DfE 2011) sections 28.7 and 30.10.
+The practice of placing children with either parents, or with connected persons, is in no sense new.
+It has existed for many years.
+As long ago as 1955, the Boarding Out of Children Regulations of that year recognised the practice in regulation 2 which (then) provided that only a husband and wife, or a sole woman, could be foster parents, but excepted the case of a grandfather, uncle or older brother of the child being fostered.
+The same regime for supervision, medical examination, reports and termination of placement applied to such non parental family placements as to any other fostering.
+Later, at the time of the commencement of the Children Act 1989, complementary regulations were made for placements with parents or those with parental responsibility or residence orders on the one hand (the Placement of Children with Parents Regulations 1991 (SI 1991/893), and, on the other hand, for all other placements including with connected persons other than that group (the Foster Placement (Children) Regulations 1991 (SI 1991/910).
+The former required approval at a higher level within the local authority, but the supervision and termination regime was very similar.
+The latter applied an identical regime to placements with connected persons as to placements with strangers.
+In order to preserve the aim of enabling children to live where possible with connected persons, there has grown up an extensive practice of approval of what are known as Friends and Family carers: see Department for Education Guidance Family and Friends Care; Statutory Guidance for Local Authorities (2010).
+Such approval may be, and commonly is, on terms which are specific to the particular children in question.
+Family and Friends Care makes it clear at para 5.16 that approval can be limited to suitability to care for the particular connected children and that there need be no consideration of qualification to care for looked after children generally.
+Separate treatment for family placements is recognised by the Regulations, as well as by the DfE guidance.
+The Fostering Services Regulations by regulation 26(8) specifically relax the normal statutory qualifications for approval of foster carers in the case of relatives who are thus approved for particular children rather than generally; they may, at the discretion of the authority, be approved notwithstanding specified convictions or cautions, either of themselves or members of their households, which would otherwise be a bar under regulations 26(5) and (7).
+As mentioned above, the Care Planning Regulations by regulations 24 and 25 permit temporary placements with connected persons who are not yet approved foster parents.
+The Fostering Services; Minimum Standards provide at section 20.2 for a different standard of training and development for family and friends fosterers, and at section 30 for the special circumstances of such fosterers.
+Ofsteds report National Statistics Fostering in England 2015 2016 (February 2017) suggests that around 5,000 friends and family households were approved at that time, representing about 10 13% of the total.
+It seems to me to follow that if vicarious liability applies to ordinary foster parents, on the basis that they are doing the local authoritys business, then it must apply also to family and friends placements with connected persons.
+What of placements with parents? These too may be in the interests of the children, and even after a care order has been made.
+If they are, it is desirable that they are encouraged, as at present consideration of them is encouraged.
+It would, however, be artificial in the extreme to say of such placements that the parents care was given on behalf of the local authority, or that it was integrated into the caring systems of the authority.
+Nor would it be fair, just or reasonable, if there were to be behaviour by the parent which amounted to a tort, to impose vicarious liability for that behaviour on the local authority which exercised all due care in making the placement and did so in pursuit of what are recognised to be sound principles of child care.
+It might in theory be possible to distinguish parents on the basis that they do not have to be approved foster parents and are thus not part of the local authoritys enterprise, but it is not easy to see how they differ in practice from grandparents or from aunts and uncles or close friends who fulfil the same role but have to be approved as foster parents, on limited terms, in order to do so.
+The reality is that any member of the extended family, or close friend, who undertakes the care of children in need, is doing so in the interests of the family, not as part of a local authority enterprise.
+What the local authority does, in all cases, whether involving family and friends or strangers, is to take responsibility for making decisions about where the children shall live, and then monitoring the progress with a view to changing the arrangements if they do not benefit the children.
+It seems to me that this is much the more realistic way of looking at the functions of the local authority, and the relationship between it and foster parents, of whichever type.
+The detailed controls which the authority exercises, and which are apt at first sight to suggest analogy to employment, are in reality decisions about where the children shall live.
+These are onerous decisions about young lives, and are properly surrounded by detailed regulations.
+But once the decision to place has been made, the care of the children is in practice committed to the foster parents.
+The daily lives of the children are not thereafter managed by the authority, as they are if they are accommodated in a Childrens Home.
+Subject to specific rules (such as a bar on corporal punishment), the practice of the foster parents in relation to their own and the fostered children is for them.
+The foster carers do not do what the authority would otherwise do for itself; they do something different, by providing an upbringing as part of a family.
+The children live in a family; a family life is not consistent with the kind of organisation which the enterprise test of vicarious liability contemplates.
+The children are in reality committed to independent carers, as they also are, although in a different manner, if the authority places the children in a specialist home run by a different authority or by a charity, as may often happen where children have special needs.
+The authority retains the right, and the responsibility, in all cases including that of children placed in a specialist childrens home, to remove the child if the placement is no longer the best for his welfare.
+In order to exercise that power, the authority monitors progress by way of visits, it expects reports, and it provides a social worker for the child.
+Meanwhile, the authority retains the right, in the case of children in care at least, to make major medical decisions if the need arises.
+But none of that really means, in practice, that the authority is bringing the child up, as it is if the accommodation is one of its own childrens homes.
+This is essentially the reasoning which was adopted by the Supreme Court of Canada in KLB v British Columbia [2003] 2 SCR 403 when confronting the same issue as now faces this court and in concluding that vicarious liability does not attach to the Government for the acts or omissions of foster parents.
+It seems to me both principled and realistic.
+In the Court of Appeal, Black LJ, as she then was, dealt almost entirely with the possibility of non delegable duty applying to the local authority.
+In that context, she expressed the fear that such a duty, if recognised, would be apt to inhibit the generally laudable practice of family placements.
+I agree, but the same is also likely to be true of vicarious liability.
+It is not impossible that if such liability were to exist, insurers would insist on additional safeguards in relation to family placements, which would discourage their being made.
+With or without that factor, the liability is likely to make placement panels more cautious.
+Almost by definition, family placements are likely to carry a somewhat greater risk of failure and of tortious wrongdoing than safer placements with foster parents who have greater independence and greater experience of bringing up other peoples children.
+But the greater safety and lesser mutual involvement of unconnected placements is bought at the expense of sacrificing family trust and loyalties, and of not allowing the natural affection which comes with them to flourish.
+Family placements are by no means universally the best answer, but they are plainly recognised by those experienced in the care of children as desirable when not contra indicated.
+It is not in the interests of children or families generally, nor of the society to which the children when grown up will belong, that those children should be made any less likely to be permitted such placements.
+The present case arises in the context of deliberate wrongdoing or abuse.
+If, however, the placement of children with foster parents is to be attended by vicarious liability, it will not only or even chiefly be this kind of fortunately relatively rare behaviour which will generate liability on the part of the local authority.
+It is more likely to be generated by complaints of acts or omissions said to have been negligent.
+Since the limitation period does not run during a childs minority, such claims will be possible many years after the event on which they rely.
+Such claims are theoretically possible, of course, within any natural family, but they are not made, nor is it generally in the interests of family unity that they should be.
+This principle was recognised by Sir Nicolas Browne Wilkinson in Surtees v Kingston on Thames Borough Council [1991] 2 FLR 559, 583: I further agree with Stocker LJ that the court should be wary in its approach to holding parents in breach of a duty of care owed to their children.
+It is accepted that the duty owed by Mr and Mrs H, as foster parents, to the plaintiff was exactly the same as that owed by the ordinary parent to his or her own children.
+There are very real public policy considerations to be taken into account if the conflicts inherent in legal proceedings are to be brought into family relationships.
+That passage was approved by Lord Hutton in Barrett v Enfield Borough Council [2001] 2 AC 550, 587 in distinguishing the case of a local authority if it was negligent in the exercise of its statutory powers in relation to children.
+It is no doubt true that one consequence of this principle is that the law does not impose exacting standards in family situations, and that this caution will be reflected in cases where vicarious liability is relied upon.
+But it is an additional indication against the imposition of vicarious liability that it is likely to result the litigation of family activity which it is undesirable should be ventilated in the courts.
+Vicarious liability is strict liability, imposed on a party which has been in no sense at fault.
+It is necessary, and fair and just, when it applies to fix liability on someone who undertakes an activity, especially a commercial activity, by getting someone else integrated into his organisation to do it for him.
+Employment is the classic example, but other situations may be analogous.
+But the extension of strict liability needs careful justification.
+Once one examines the nature of fostering, its extension to that activity does not seem to me to be either called for or justified, but, rather, fraught with difficulty and contra indicated.
+Accordingly, I would uphold the decision of the Court of Appeal and dismiss this appeal.
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+On 21 March 2016, this court gave a father permission to appeal against the decision of the Court of Appeal that a custody order which he had obtained in Romania should not be enforced in this country under the Brussels II (Revised) Regulation (BIIR), because it had been given without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure in this country.
+In the view of the panel giving permission to appeal, the judgment of the Court of Appeal raised an arguable point of law of general public importance, as to the precise extent to which it is a fundamental principle of the procedure relating to all cases about children in the courts of England and Wales that the child should be given an opportunity to be heard.
+This is a question of importance in all childrens cases, not just those where the court here is asked to enforce a judgment given in another member state of the European Union.
+However, it has now become clear that under BIIR this court has no jurisdiction to entertain such an appeal.
+This point was not raised by the respondent mother in her notice of objection to the application for permission to appeal.
+No doubt, had she done so, the court would have listed it for oral argument before deciding whether or not to give permission.
+In the event, once it was raised, we were able to arrange a hearing at short notice, in advance of the date set for the substantive appeal.
+As a point of jurisdiction, it could not be ignored, however inconveniently late in the day it was raised.
+We are grateful to the parties for the speed with which they have prepared their written and oral arguments and, in particular, to the Ministry of Justice, whom we asked to intervene in order to give us an account of the relevant history.
+The history of the case
+The circumstances in which this question arises are deeply unfortunate, not least because of the delays there have been, not only in Romania but also in this country, but they are largely irrelevant to the question of law which we have to decide.
+The child in question, DD, was born in Romania on 8 November 2006 and so is now aged nine and a half.
+His parents are both Romanian but met while working in this country.
+They returned briefly to Romania, where they got married and the child was born, but by January 2007 both parents had returned to live in this country with the child.
+They separated in November 2007.
+DD has continued to live here with his mother, his main carer, ever since.
+The father returned to live in Romania in 2009, but has kept a second home here and for most of the intervening years (with a long gap from November 2012 until March 2014) has shared the care of DD with the mother.
+He has a significant relationship with his son.
+Although DD is undoubtedly habitually resident in this country, the parties chose to litigate about his future in Romania.
+The father issued divorce and custody proceedings there in November 2007.
+The couple were divorced in April 2008.
+The father was awarded custody of DD, but the mother successfully appealed.
+At the retrial, the father was again awarded custody, but first the mother and then the father successfully appealed.
+At a further retrial in a different court, in December 2011, the court awarded joint parental authority to both parents, while finding that DDs domicile and residence were at the mothers address in England.
+Both parties appealed, but their appeals were dismissed in March 2013, on the basis that joint custody is the norm and sole custody the exception.
+Nevertheless, the child should remain living with his mother in England, as it was not in his best interests to change his living arrangements.
+The father launched a further appeal, to the Bucharest Court of Appeal.
+Its final decision, in November 2013, was that the child should live with the father, on the basis that he could provide the best moral and material conditions.
+In February 2014, the father applied for the recognition and enforcement of this order by the English court.
+The result was the re establishment of contact between father and son and a High Court ordered arrangement that the parents share his care in this country while the fathers application proceeded.
+On 1 May 2014, Peter Jackson J ordered that DD be made a party to the enforcement proceedings: see the summary of the history in In re D (Recognition and Enforcement of Romanian Order) [2014] EWHC 2756 (Fam), [2015] 1 FLR 1272.
+He quotes, in para 33, the reasons given in his earlier judgment.
+This was not so as to make inquiries as to his welfare, which would be inappropriate in enforcement proceedings, but because Ds rights as an individual child are engaged in his fathers application and whatever has happened in this case he bears no responsibility for it (para 15).
+His interest was not being represented (para 16) and the facts were egregious (para 10) neither the judge, nor counsel, nor the Childrens Guardian had experienced a case in which enforcement is being sought with regard to a child who has attained the age of seven and has never lived in the country from which the relevant order emanates (para 11).
+The registration of an order under BIIR is essentially administrative, although it requires a judicial act: see In re S (Foreign Contact Order) [2009] EWCA Civ 993, [2010] 1 FLR 982, para 12.
+Judicial consideration of any dispute occurs at the first appeal stage.
+This came before Peter Jackson J who determined it in July 2014 (reference above).
+Article 23 lays down seven grounds for non recognition.
+The judge rejected the mothers case on article 23(a), that recognition was manifestly contrary to the public policy of the member state in which recognition is sought taking into account the best interests of the child.
+This ground is to be narrowly construed and the Bucharest decision was not so extreme as to require recognition to be withheld on this ground (para 74).
+However, he did refuse recognition under article 23(b), which provides that a judgment shall not be recognised if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the member state in which recognition is sought.
+The Bucharest Court of Appeals conclusion about DDs wishes and feelings, namely that he constantly craves for [the fathers] permanent presence, had not arisen from any direct or indirect enquiry involving the child himself (para 83).
+It had a report from a Cafcass officer in earlier enforcement proceedings when DD was two years old.
+It had a report from a social worker when he was five and a half, in response to the fathers concerns about the mothers care.
+At the first tier appeal in February 2013, the father had asked the court to hear the child, but the mother had opposed this (interestingly, given her current stance), and the court had deemed it not useful given the age of the minor.
+Peter Jackson J disagreed: The childs entitlement to a voice is a fundamental procedural principle in our system.
+If he is old enough, it will be his voice and his words.
+An adult voice will convey the younger childs point of view.
+Younger children are less able to articulate their wishes, but their feelings may be more vivid than those of older children and of adults, whose views we canvass without a second thought. (para 96)
+A report from a court social worker, containing the childs perspective, would be fundamental to the decision of any English court, faced with a striking application of this kind (peremptory change of lifelong carer, country and language) (para 103).
+He therefore allowed the mothers appeal on this ground.
+He also allowed her appeal on the grounds contained in article 23(c) (lack of service) and (d) (not giving the mother an opportunity of being heard).
+The Court of Appeal dismissed the mothers cross appeal on article 23(a), allowed the fathers appeal on article 23(c) and (d), but dismissed the fathers appeal on article 23(b): [2016] EWCA Civ 12, [2016] 1 WLR 2469.
+The question of whether and how the childs voice was to be heard in the proceedings was a separate question from the weight to be given to his wishes and feelings: the rule of law in England and Wales includes the right of the child to participate in the process that is about him or her.
+That is the fundamental principle that is reflected in our legislation, our rules and practice directions and jurisprudence.
+At its most basic level it involves asking at an early stage in family proceedings whether and how that child is going to be given the opportunity to be heard.
+The qualification in section 1(3)(a) [of the Children Act 1989] like that in article 12(1) [of the United Nations Convention on the Rights of the Child 1989] relates to the weight to be put upon a childs wishes and feelings, not their participation. (para 44)
+This court is not concerned with whether the decisions reached by the trial judge and Court of Appeal in this particular case were right or wrong.
+They may very well have been right.
+Nor is it concerned with the extent to which the childs right to be heard is a fundamental principle of the procedure in the courts of England and Wales in cases relating to the future of children.
+That is a very large question and views may differ as to precisely what the effect is of the Court of Appeals judgment.
+This court is solely concerned with whether we have any jurisdiction to entertain an appeal against the decision of the Court of Appeal that the Romanian order should not be registered and enforced in this country.
+The jurisdiction question
+The jurisdiction of the Supreme Court of the United Kingdom is governed by section 40 of the Constitutional Reform Act 2005.
+So far as material, this provides: (2) An appeal lies to the Court from any order or judgment of the Court of Appeal in England and Wales in civil proceedings. (6) An appeal under subsection (2) lies only with the permission of the Court of Appeal or the Supreme Court; but this is subject to provision under any other enactment restricting such an appeal.
+The question, therefore, is whether the provisions of BIIR constitute an enactment restricting such an appeal from the Court of Appeal or otherwise override the provisions of the 2005 Act.
+This encompasses two questions: first, what is the meaning and effect of the provisions of BIIR in European Union law; and second, what is their effect upon the provisions of an Act of the United Kingdom Parliament?
+The Brussels II Revised Regulation
+By article 28 of BIIR, a judgment on parental responsibility which is enforceable in the member state where it was given shall be enforced in another member state when it has been declared enforceable there. (In the United Kingdom, this means the part of the United Kingdom where it has been registered.) By article 29, the application for such a declaration shall be submitted to the court appearing in the list notified by each member state to the Commission pursuant to article 68.
+The High Court of Justice Principal Registry of the Family Division has been notified for this purpose.
+Rule 31.4 of the Family Procedure Rules 2010 provides that applications should be made to a district judge (as had previously been indicated should be the case by Thorpe LJ in In re S, above, at para 16).
+By article 31, the court applied to must give its decision without delay and neither the person against whom enforcement is sought nor the child is entitled to make any submissions about it.
+Although the application may be refused for one of the reasons set out in articles 22, 23 and 24, under no circumstances may a judgment be reviewed as to its substance (article 31.3).
+In essence, therefore, this is intended to be a speedy ex parte (and essentially administrative) process.
+The first opportunity for inter partes debate comes with the first appeal under article 33.
+Under article 33.1, either party may appeal the decision on the application for a declaration.
+Once again it is to be lodged with the court notified under article 68 (article 33.2).
+The High Court of Justice Principal Registry of the Family Division has again been notified for this purpose, but rule 31.15(1) of the Family Procedure Rules provides that the appeal must be made to a judge of the High Court (again as advised by Thorpe LJ in In re S).
+The appeal must be lodged within one month of service of the declaration, or two months if the person against whom enforcement is sought is habitually resident in a member state other than that where the declaration was given (article 33.5).
+Once again, the need for speed is emphasised.
+Then comes article 34, the provision which is crucial to this case: The judgment given on appeal may be contested only by the proceedings referred to in the list notified by each member state to the Commission pursuant to article 68.
+Article 68 provides that member states shall notify to the Commission the lists of courts and redress procedures referred to (relevantly) in articles 29, 33 and 34 and any amendments thereto.
+The Commission is to keep the information up to date and to make it publicly available.
+The reference to the United Kingdom in its consolidated list of notifications reads as follows: The appeals provided for in article 34 may be brought only: in the United Kingdom, by a single further appeal on a point of law: (a) in England and Wales, to the Court of Appeal.
+On the face of it, therefore, the position under BIIR is quite clear.
+There is to be a largely formal first stage when (no doubt usually) the judgment is declared enforceable; there is to be a first appeal when the enforceability decision can be contested; and the decision on that appeal can only be contested by the notified proceedings.
+It follows that if there were no notification under articles 34 and 68, as is the case with Cyprus and Malta, there would be no appeal possible under article 34.
+The UKs notification expressly limits the proceedings to a single further appeal on a point of law which must be made, in England and Wales, to the Court of Appeal.
+No mention is made of a further appeal to the Supreme Court of the United Kingdom.
+This too accords with the understanding of Thorpe LJ in In re section
+The United Kingdom notification may be contrasted with the notification given by Ireland under articles 33 and 71 of Council Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (the Maintenance Regulation).
+Article 33 provides that the decision given on appeal may be contested only by the procedure notified by the member state concerned to the Commission in accordance with article 71.
+Article 71 requires member states to communicate to the Commission the redress procedures referred to in article 33.
+Irelands notification says this: An appeal on a point of law to the Court of Appeal (it should be noted, however, that in accordance with the provisions of the Irish Constitution, the Supreme Court shall have appellate jurisdiction from a decision of the High Court if it is satisfied that there are exceptional circumstances warranting a direct appeal to it.
+The Supreme Court shall also have appellate jurisdiction from a decision of the Court of Appeal if it is satisfied that certain conditions laid down in the Constitution are satisfied.
+It would appear, therefore, that at least one member state considers it possible to provide for two tiers of appeal from the first appeal.
+It is not for this court to say whether that is consistent with either article 34 of BIIR or article 33 of the Maintenance Regulation.
+Whether or not the United Kingdom could have provided for a further appeal to the Supreme Court, which some might think necessary if only to resolve inconsistent decisions in different parts of the United Kingdom concerning a Regulation which applies throughout, the fact remains that it did not do so.
+Furthermore, the approach adopted by the United Kingdom in all previous European instruments concerned with the free movement of judgments and judicial cooperation within the European Union has been to provide for only one tier of further appeal.
+The first of these was the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (the 1968 Convention), concluded by the original six member states of the European Economic Community in 1968, later amended to include the United Kingdom.
+The courts and methods of appeal are specified in article 37 of the Convention itself, in England and Wales the first appeal going to the High Court (or in the case of a maintenance judgment, to the magistrates court), and that decision being contested only by a single further appeal on a point of law.
+As the official Explanatory Report comments, the object of the Convention was to ensure that the judgment given on the appeal may be contested only by an appeal in cassation and not by any other form of appeal or review (OJ 1979 C 59, pp 1, 51 52).
+This was because An excessive number of avenues of appeal might be used by the losing party purely as delaying tactics, and this would constitute an obstacle to the free movement of judgments which is the object of the Convention.
+Of course, this rationale only really applies to attempts by the person against whom enforcement is sought, such as the mother in this case, to resist enforcement, but what is sauce for the goose must also be sauce for the gander.
+The 1968 Convention (along with its 1971 Protocol and the 1978 Convention on the accession of Denmark, Ireland and the United Kingdom to them both) was given effect in United Kingdom law by the Civil Jurisdiction and Judgments Act 1982.
+Interestingly, section 6(1) specifies that the single further appeal on a point of law lies in England and Wales either to the Court of Appeal or to the Supreme Court (formerly to the House of Lords) under the leap frog procedure provided for in the Administration of Justice Act 1969.
+Council Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels I Regulation) was designed to replace the 1968 Convention with directly applicable Community legislation.
+The approach to avenues of challenge was the same, save that instead of containing each countrys permitted avenues in the text of the relevant articles, these referred to lists contained in Annexes to the Regulation.
+Thus article 43.2 provided that the first appeal should be lodged with the court indicated in Annex III, which for England and Wales was the High Court of Justice (except for maintenance judgments); and article 44 provided that the judgment given on appeal might be contested only by the appeal referred to in Annex IV, which was once again a single further appeal on a point of law.
+The Civil Jurisdiction and Judgments Order 2001 (SI 2001/3929) specified, once again, that in England and Wales this would lie either to the Court of Appeal or on a leap frog appeal to the House of Lords (article 4).
+In 1998, the Council approved a Convention extending the scope of the Brussels regime to matrimonial matters.
+This took the same approach to the methods of challenging enforcement applications as had the 1968 Convention.
+The 1998 Convention never became applicable but was the source of the 2000 Council Regulation (EC) 1347/2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses (the Brussels II Regulation), which was the immediate predecessor to the BIIR Regulation.
+This adopted the same method as the Brussels I Regulation was to adopt some seven months later.
+Article 26.2 provided that the first appeal should be lodged with the court listed in Annex II, which for England and Wales was the High Court of Justice.
+Article 27 provided that the judgment given on appeal might be contested only by the proceedings listed in Annex III, which for the UK was by a single further appeal on a point of law.
+However, the European Communities (Matrimonial Jurisdiction and Judgments) Regulations 2001 (SI 2001/310), unlike the 2001 Order relating to the Brussels I Regulation, did not specify what was meant by a single further appeal on a point of law, nor did the new Chapter 5 of the Family Proceedings Rules 1991, introduced by article 29 of the Family Proceedings (Amendment) Rules 2001 (SI 2001/821) to cater for the Brussels II Regulation.
+However, BIIR, which replaced the Brussels II Regulation, adopts a slightly different technique.
+Instead of describing the appeal processes in the text, or in Annexes, it provides for each member state to communicate the avenues of first appeal and further contestation to the Commission thus enabling member states to change the processes without the need to revise the Regulation.
+Unlike both the Brussels II and the Brussels I Regulations, BIIR does not contain either in its main text or in Annexes a reference to a single further appeal on a point of law.
+There is no express limit in article 34 to the number of proceedings whereby the judgment on the first appeal may be contested (although article 35 refers to the appeal under article 34 rather than an appeal).
+This more flexible approach is also taken in the 2009 Maintenance Regulation (which removed maintenance obligations from the scope of the Brussels I Regulation).
+While article 33 provides that the decision given on first appeal may be contested only by the procedure notified in accordance with article 71, article 71 requires member states to communicate the redress procedures referred to in article 33.
+For what it is worth, the recast version of the Brussels I Regulation, Regulation (EU) 1215/2012 of the European Parliament and of the Council, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, also adopts this more flexible technique.
+Article 50 provides that the judgment given on the first appeal can only be contested by an appeal where the courts with which any further appeal is to be lodged have been communicated to the Commission under article 75(c), which also refers to courts.
+The United Kingdom has retained the previous reference (for England and Wales) to an appeal either to the Court of Appeal or under the leap frog procedure to the Supreme Court.
+The purpose of all these instruments is that, save in very narrowly defined circumstances, member states should recognise and enforce one anothers judgments.
+The recitals to BIIR are typical: The European Community has set the objective of creating an area of freedom, security and justice, in which the free movement of persons is ensured (Recital 1).
+The recognition and enforcement of judgments given in a member state should be based on the principle of mutual trust and the grounds for non recognition should be kept to the minimum required (Recital 21).
+From the very outset, in 1968, member states were anxious that there should not be too many avenues and methods of challenging enforcement decisions, hence the restriction to cassation type further appeals.
+It may well be, as Mr Richard Harrison QC has argued very ably on behalf of the father, that the strict approach taken in the earlier instruments has had to give way to the more flexible approach taken more recently.
+It may well be that it would be open to the United Kingdom to do as Ireland has done and notify the possibility, not only of leap frog appeals from the High Court to the Supreme Court, but also of appeals from the Courts of Appeal in each part of the United Kingdom to the Supreme Court.
+The fact remains that it has not done so.
+It is also true to say that the policy of the United Kingdom has not been entirely consistent.
+In relation to civil and commercial judgments, the 1968 Convention, the Brussels I Regulation and the recast Brussels I Regulation provide for the possibility of either an appeal to the Court of Appeal or a leap frog appeal to the House of Lords or Supreme Court (thus, it would appear, giving the Supreme Court jurisdiction where the Court of Appeal has gone wrong in law in an earlier case, but not if it does so in the current case).
+It has not been possible to discover why a different approach, excluding the House of Lords or Supreme Court altogether, was taken in relation to family matters in the Brussels II Regulation and BIIR.
+It is known that the President of the Family Division, the Solicitors Family Law Association, The Law Society, the Family Law Bar Association, Reunite, Pact, and the Child Abduction Unit in the Office of the Official Solicitor were consulted on the Commissions revised draft text of BIIR and that the Lord Chancellors Department continued to consult the President of the Family Division, Thorpe LJ (Chairman of the Presidents International Committee), senior practitioners and Reunite during the negotiations.
+But it is not known precisely how and why the decision was taken to adopt the new approach in article 34 or how and why the United Kingdom government chose to make the notification which it did.
+The Minutes of the International Family Law Committee of the Family Justice Council held on 8 November 2004, at which the proposed BIIR was discussed, do not record any discussion of these matters.
+But it is not surprising that the notification was to the same effect as Annex III to the Brussels II Regulation, nor is it unlikely that limiting the scope for multiple appeals was seen as an important consideration.
+The fact remains that the United Kingdom did make the notification in question.
+The question, therefore, is whether BIIR, combined with that notification, is effective to restrict what would otherwise be the jurisdiction of the Supreme Court under section 40 of the 2005 Act.
+The effect of BIIR in United Kingdom law
+Mr Harrison faces the serious difficulty that article 34 clearly states that the decision on appeal may only be contested by the notified proceedings.
+On the face of it, therefore, as Mr Hugh Mercer QC submits on behalf of the Ministry of Justice, if there were no relevant notification, there would be no possibility of further challenge (as is apparently the case with Cyprus and Malta).
+Mr Harrison seeks to avoid this problem in two ways.
+First, he argues that the notification, being an act of the executive without any Parliamentary scrutiny or approval, cannot be an enactment for the purpose of section 40(6).
+He is of course quite correct that the executive has no power to amend or qualify primary or delegated legislation unless Parliament has given it the power to do so.
+An example is the power given by the United Nations Act 1946 to make Orders in Council without Parliamentary scrutiny where necessary to comply with the United Kingdoms obligations under the United Nations Charter.
+Express language would be required for such a power to permit the executive to abrogate fundamental rights such as the right of access to a court: see A v HM Treasury (JUSTICE intervening) [2010] UKSC 2; [2010] 2 AC 534.
+In fact, such delegated legislative powers are far more frequently exercised by statutory instrument which has to be laid before, and in some cases positively approved by, Parliament.
+It is also correct that the power to amend primary legislation and otherwise to legislate for the purpose of complying with the United Kingdoms obligations in European Union law, conferred by section 2(2) of the European Communities Act 1972, has to be exercised by Order in Council or by orders, rules, regulations or schemes.
+The notification was none of these things.
+By itself, therefore, it could not be effective to amend or qualify section 40(2) of the Constitutional Reform Act 2005.
+However, we are concerned, not with the notification alone, but with the combined effect of article 34 of BIIR and the notification.
+It is trite law that European Regulations are directly applicable in all member states without the need for further legislative implementation there: Treaty on the Functioning of the European Union, article 288.
+It was, of course, necessary for the United Kingdom to legislate to make this treaty provision the law in the United Kingdom.
+This it did by section 2(1) of the European Communities Act 1972: (1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly;
+Furthermore, by section 2(4): (4) any enactment passed or to be passed shall be construed and have effect subject to the foregoing provisions
+of this section
+Thus, Parliament has decreed that its own legislation is to have effect subject to the requirements of directly applicable European Union law.
+This includes section 40(2) of the 2005 Act.
+Mr Harrison is therefore driven to argue that articles 34 and 68 of BIIR are not, in fact, directly applicable.
+This is because they require measures of application to be adopted by member states in order to be implemented.
+He relies, in particular, on the cases of Azienda Agricola Monte Arcosu Srl v Regione Autonoma Della Sardegna and Others (Case C 403/98) [2001] ECR I 103; [2002] 2 CMLR 14 and OBB Personenverkehr AG v Schienen Control Kommission (Case C 509/11) [2014] 1 CMLR 51.
+His best example is the OBB case, which concerned a Regulation (1371/2007) providing for rail passengers to be compensated for delay.
+Under article 30, each member state was to designate a body responsible for enforcing the Regulation.
+But the Regulation did not define the specific measures which that body had to be able to adopt to secure compliance.
+The relevant body in Austria, the Kommission, required the railway company, OBB, to alter the terms and conditions of its tickets so as to comply with the compensation requirements of article 17 of the Regulation.
+But under Austrian law the Kommission did not have the power to do so.
+The Court held that article 30 by itself did not give it the power to impose terms on the railway company. (I note that it would be a completely separate question whether the passenger could rely on the direct effect of the Regulation in order to claim the compensation which it prescribed.)
+The Azienda case concerned Regulation No 797/85, which provided for certain payments to farmers practising farming as [their] main occupation.
+Member states were required to define what that meant, both for natural and non natural persons.
+The relevant Italian law defined it for individuals and certain other entities, such as farming co operatives, but did not provide for limited companies at all.
+The Court held that, as the Regulation required a definition before it could be operated, a limited company conducting farming operations could not make claims under the Regulation.
+The principle was stated thus: 26.
+In this respect, although, by virtue of the very nature of regulations and of their function in the system of sources of Community law, the provisions of those regulations generally have immediate effect in the national legal systems without its being necessary for the national authorities to adopt measures of application, some of their provisions may nonetheless necessitate, for their implementation, the adoption of measures of application by the member states.
+Thus, says Mr Harrison, as articles 34 and 68 of BIIR required further measures of implementation in the form of notifications by the member states, they cannot be directly applicable.
+The simple answer to this argument is that articles 34 and 68 are not comparable with the articles under consideration in these two cases.
+Article 34 does not depend for its implementation upon the member states choice of avenue of appeal.
+If the member state fails to notify any such avenue of appeal, then none will exist.
+But in any event, the member state in question did make a relevant notification.
+There is nothing in these cases to suggest that, if the required measures of implementation are adopted in a member state, the Regulation is not directly applicable there (and indeed effective to create individual rights).
+The farmers who were covered by the Italian definition would no doubt have been able to claim their rights under the Regulation.
+Mr Harrisons final argument is that the notification cannot be effective if it does not give an accurate picture of the appellate rights under United Kingdom law.
+Article 68 requires member states to supply information as to the position in their country; it does not permit them to change the position as it would otherwise be.
+However, so to interpret article 68 would run counter to the purpose of the provisions relating to routes of challenge which date back to the 1968 Convention and continue through all the European instruments discussed earlier.
+This is to limit the avenues and methods of appeal so as to avoid delays and manoeuvrings which will defeat the object of effective enforcement of one anothers orders.
+This object may have become slightly diluted in the more recent instruments, but the Regulation clearly contemplates the possibility that Member States will make notifications which cut down the routes of appeal which would otherwise be available.
+Conclusion
+I am therefore satisfied that the Supreme Court of the United Kingdom has no jurisdiction to entertain an appeal in this case.
+The appeal which has been lodged should therefore be struck out.
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+This case concerns the enforcement of confiscation orders made by the Crown Court upon conviction.
+As well as various statutory mechanisms for enforcement via the appointment of receivers, successive confiscation statutes have adopted the scheme of making confiscation orders enforceable as if they were fines imposed by the Crown Court.
+That involves using the powers of the Magistrates Court, which is the court which can, if payment is not made, issue a warrant committing the non paying defendant to prison.
+When making the confiscation order (as when imposing a fine), the Crown Court is required by statute to fix a default term of imprisonment to be served if the defendant does not pay.
+In a simple case of non payment, the magistrates will usually issue a warrant committing the defendant to prison for the period which the Crown Court fixed as the default term, and that term has to be served consecutively to any sentence passed for the substantive offences which led to the making of the confiscation order.
+There are, however, two possible adjustments which may have to be considered.
+The first is interest.
+The second is part payment.
+The present appeal concerns how these two adjustments fall to be made when they coincide.
+Because the confiscation order made in this case, and the enforcement action taken in consequence, happened some time ago, this case falls to be decided upon legislation now repealed and replaced.
+It is not, however, of merely historical interest.
+Although the drafting of later legislation has not been identical, the issue raised by this appeal arises in much the same way under the current legislation, the Proceeds of Crime Act 2002.
+Put shortly, the issue is this.
+If between the making of the confiscation order by the Crown Court and the issue of a warrant by the magistrates committing the defendant to prison, part payment has been made, but also interest has accrued, what does the statutory scheme say about how credit is to be given for the part payment? Is the term of imprisonment ordered by the magistrates to be reduced, by reason of the part payment, by reference to the total net sum outstanding (including interest), or is reduction for part payment to be calculated by reference only to the principal sum payable under the confiscation order? It is trite, but important, to say at the outset that the question is not what scheme might be thought desirable, but rather what the convoluted statutes actually mean.
+It is also relevant to note that although the issue makes a difference of 11 days in the present case, in the context of a defendant sentenced originally to a term of 25 years for his substantive offences, it will apply to a large number of prisoners, and may fall for decision not only by courts, but also by prison governors who have to determine release dates.
+The facts
+Mr Gibson was convicted of drug trafficking offences on 21 May 1999 and sentenced to 25 years imprisonment.
+On 29 March 2000 at the confiscation hearing, he was ordered to pay a little over 5.4m; that meant that it had been determined by the judge that his benefit was not less than that sum and that he had assets from which that sum might be realised.
+He was given 12 months to pay, and the judge fixed the term of six years imprisonment in default of payment.
+Interest therefore ran from the expiry of the 12 months to pay.
+He paid nothing until 4 May 2007, when 12,500 was paid, it would appear via a receiver appointed to realise his assets.
+A month later, he appeared before the magistrates for consideration of a warrant of commitment.
+The magistrates deducted seven days from the six year term in default, to take account of the recent part payment.
+As at that time, interest had lifted the net sum outstanding, allowing for the part payment, to 8.1m.
+Subsequently, later in 2007 and in 2011, two further realisations were achieved by his receiver, which produced payments of 12,500 and 65,370.
+The prison authorities, and through them the Secretary of State for Justice, calculated the reduction in the six year default term on the basis of the proportion which these payments bore to the 8.1m outstanding at the time of his committal.
+That produced reductions of three days and 21 days, totalling 24 days.
+If the arithmetic had been applied instead to an outstanding figure confined to the original 5.4m, something like 11 extra days reduction would have been made.
+The issue in the present appeal is whether he was entitled to those 11 extra days.
+Interest on confiscation orders
+Uniquely amongst orders for payment of money made by criminal courts, confiscation orders carry interest.
+They have done so since the early 1990s: see section 15 of the Criminal Justice (International Co operation) Act 1990 and section 9 of the Proceeds of Crime Act 1995, which introduced the rule respectively in relation to drugs offences and to other forms of crime.
+Interest has been set, by successive statutes, at the same rate as is prescribed from time to time for civil judgment debts under section 17 of the Judgments Act 1838.
+The interest provisions relevant to the present case were contained in section 10 of the Drug Trafficking Act 1994 (the Drug Trafficking Act), as in force at the relevant time: 10.
+Interest on sums unpaid under confiscation orders. (1) If any sum required to be paid by a person under a confiscation order is not paid when it is required to be paid (whether forthwith on the making of the order or at a time specified under section 139(1) of the Powers of Criminal Courts (Sentencing) Act 2000) that person shall be liable to pay interest on that sum for the period for which it remains unpaid; and the amount of the interest shall for the purposes of enforcement be treated as part of the amount to be recovered from him under the confiscation order. (2) The Crown Court may, on the application of the prosecutor, increase the term of imprisonment or detention fixed in respect of the confiscation order under subsection (2) of section 139 of the 2000 Act (as it has effect by virtue of section 9 of this Act) if the effect of subsection (1) above is to increase the maximum period applicable in relation to the order under subsection (4) of that section. (3) The rate of interest under subsection (1) above shall be the same rate as that specified in section 17 of the Judgments Act 1838 (interest on civil judgment debts).
+For present purposes, the key provisions are: (1) the concluding words of section 10(1), by which the interest is to be treated for the purposes of enforcement as part of the amount to be recovered under the confiscation order; and section 10(2), which enables a Crown Court judge to re fix, and (2) increase, the default term if the addition of accrued interest takes the sum outstanding into a higher bracket in the relevant schedule of permissible default terms.
+If the statutory scheme had stopped at this point, there would no doubt have been a powerful argument for saying that for all enforcement purposes interest is simply added to the original confiscation order.
+But this apparently fairly simple provision has to be considered in its place in the much more complex statutory scheme under which the magistrates powers of commitment to prison are made applicable to confiscation orders.
+The application of the magistrates powers of commitment
+In common with other confiscation statutes, the Drug Trafficking Act referred enforcement by committal to prison to the Magistrates Court.
+By the time of the 2007 commitment proceedings in this case, section 9 provided: 9.
+Application of procedure for enforcing fines. (1) Where the Crown Court orders the defendant to pay any amount under section 2 of this Act, sections 139(1) to (4) and 140(1) to (3) of the Powers of Criminal Courts (Sentencing) Act 2000 (powers of Crown Court in relation to fines and enforcement of Crown Court fines) shall have effect as if that amount were a fine imposed on him by the Crown Court.
+The provisions there referred to in the (essentially consolidating) Powers of Criminal Courts (Sentencing) Act 2000 (the 2000 Sentencing Act) were previously contained in sections 31 and 32 of the Powers of Criminal Courts Act 1973, to which section 9 in its original form referred.
+In the courts below all parties, and thus the courts, proceeded on the basis that the 1973 provisions were the relevant ones.
+It was common ground before this court that the 2000 Act provisions had become the relevant ones by the time of the commitment proceedings in this case.
+The difference does not matter, because although the wording is not identical, it is agreed that the effect of the two sets of provisions is the same.
+It follows that section 9 of the Drug Trafficking Act referred one on to sections 139 and 140 of the 2000 Sentencing Act, which are about fines.
+So far as material, they provided as follows: 139.
+Powers and duties of Crown Court in relation to fines and forfeited recognizances. (1) Subject to the provisions of this section, if the Crown Court imposes a fine on any person or forfeits his recognizance, the court may make an order (a) allowing time for the payment of the amount of the fine or the amount due under the recognizance; (b) directing payment of that amount by instalments of such amounts and on such dates as may be specified in the order; (c) [applicable only to recognizances] (2) Subject to the provisions of this section, if the Crown Court imposes a fine on any person or forfeits his recognizance, the court shall make an order fixing a term of imprisonment or of detention under section 108 above (detention of persons aged 18 to 20 for default) which he is to undergo if any sum which he is liable to pay is not duly paid or recovered. 140.
+Enforcement of fines imposed and recognizances forfeited by Crown Court. (1) Subject to subsection (5) below, a fine imposed or a recognizance forfeited by the Crown Court shall be treated for the purposes of collection, enforcement and remission of the fine or other sum as having been imposed or forfeited (a) by a magistrates court specified in an order made by the Crown Court, or if no such order is made, by the magistrates (b) court by which the offender was committed to the Crown Court to be tried or dealt with or by which he was sent to the Crown Court for trial under section 51 or 51A of the Crime and Disorder Act 1998, and, in the case of a fine, as having been so imposed on conviction by the magistrates court in question. (2) Subsection (3) below applies where a magistrates court issues a warrant of commitment on a default in the payment of a fine imposed by the Crown Court; or a sum due under a recognizance forfeited by the (a) (b) Crown Court.
+In such a case, the term of imprisonment or detention (3) under section 108 above specified in the warrant of commitment as the term which the offender is liable to serve shall be (a) 139(2) above, or (b) if that term has been reduced under section 79(2) of the Magistrates Courts Act 1980 (part payment) or section 85(2) of that Act (remission), that term as so reduced, the term fixed by the Crown Court under section notwithstanding that that term exceeds the period applicable to the case under section 149(1) of the Customs and Excise Management Act 1979 (maximum periods of imprisonment in default of payment of certain fines).
+Subsection (5), referred to in section 140(1), removes from the magistrates the power to remit part of a fine if the fine was imposed by the Crown Court.
+A similar stipulation against remission is additionally specifically applied to confiscation orders by section 9(4)(a) of the Drug Trafficking Act.
+It follows that the statutory scheme for the enforcement of confiscation orders proceeded then, as it does now, by a process of successive referrals.
+First, section 9 of the Drug Trafficking Act makes the confiscation order enforceable as if it were a fine imposed by the Crown Court.
+That refers one on to the 2000 Sentencing Act, by which a fine imposed by the Crown Court is by section 140(1) treated for enforcement purposes as if it had been imposed by the magistrates, and thus so is a confiscation order.
+But the magistrates general powers in relation to their own fines are not in the 2000 Sentencing Act; they are found in the Magistrates Courts Act 1980, to which one is thus further referred on.
+It is in the Magistrates Courts Act 1980 (section 76) that the magistrates power to commit to prison for failure to pay a fine is found, together with an alternative power to issue a warrant of distress (now re named a warrant of control).
+And it is in the Magistrates Courts Act 1980 that the only provision dealing with part payments is found.
+That is section 79 which at the time material to these magistrates proceedings read as follows: 79.
+Release from custody and reduction of detention on payment. (1) Where imprisonment or other detention has been imposed on any person by the order of a magistrates court in default of payment of any sum adjudged to be paid by the conviction or order of a magistrates court or for want of sufficient distress to satisfy such a sum, then, on the payment of the sum, together with the costs and charges, if any, of the commitment and distress, the order shall cease to have effect; and if the person has been committed to custody he shall be released unless he is in custody for some other cause. (2) Where, after a period of imprisonment or other detention has been imposed on any person in default of payment of any sum adjudged to be paid by the conviction or order of a magistrates court or for want of sufficient distress to satisfy such a sum, payment is made in accordance with rules of court of part of the sum, the period of detention shall be reduced by such number of days as bears to the total number of days in that period less one day the same proportion as the amount so paid bears to so much of the said sum, and the costs and charges of any distress levied to satisfy that sum, as was due at the time the period of detention was imposed. (3) In calculating the reduction required under subsection (2) above any fraction of a day shall be left out of account.
+The problem of part payments
+Many of the difficulties which have beset the present case arise out of the fact that the enforcement of confiscation orders is thus achieved by applying to them statutory provisions which were not designed for them.
+In particular, the process of referrals just described has the effect that a confiscation order is treated for enforcement as if it was a fine imposed by the magistrates.
+But there is a very important difference in practice as between fines imposed by magistrates and fines (and confiscation orders) imposed by the Crown Court.
+In the case of the former, the magistrates do not fix a default term when imposing the fine.
+Instead, they approach the matter of imprisonment in default only after default has occurred.
+By then, of course, it will be known whether the default is total or partial, and the term imposed under the warrant of commitment can be, and ordinarily is, adjusted accordingly, thus in effect giving credit for part payments made before the commitment process is undertaken.
+Section 79(1) and (2) then deal with the situation if whole (subsection (1)) or part (subsection (2)) payment is made after the warrant of commitment is issued.
+But in the case of Crown Court fines and confiscation orders, section 139(2) of the 2000 Sentencing Act mandates the fixing of an anticipatory default term at the time the fine or order is imposed.
+It follows that something is required to cope with part payments made after the Crown Court order and before the Magistrates proceedings, as well as with payments made after the latter.
+This difference of practice led the courts below to analyse section 79(2) as assuming the standard magistrates practice and thus to conclude that the references in that subsection to a period of imprisonment having been imposed in default of payment were references to the act of the magistrates in issuing the warrant of commitment.
+That in turn gave rise to the difficulty that, on that basis, section 79(2) would say nothing about how to deal with part payments made in a Crown Court case between the Crown Court order and the later magistrates proceedings, and there was no other provision which filled the gap.
+The Court of Appeal understandably concluded that such part payments had to be taken into account, and to give effect to that conclusion it read two additional words into section 79(2) so that it read Where, before or after a period of imprisonment has been imposed : see [2017] 1 WLR 1115, para 51.
+On the very helpful further argument which this court has had from counsel on both sides, it is now clear that section 79 does not, when it speaks of a period of imprisonment imposed in default of payment, necessarily refer only to the magistrates proceedings.
+That will of course be the position when the default term is imposed in the ordinary case of magistrates deciding whether or not to issue a warrant of commitment some time after default has occurred.
+But even then, the magistrates are entitled to issue the warrant and postpone its execution on terms, usually no doubt requiring prompt payment and perhaps by instalments.
+Section 77(2) of the Magistrates Courts Act 1980 specifically so provides.
+It follows that even in the case of an exclusively magistrates case, there may be a warrant of commitment without immediate imprisonment.
+Before this court, the parties were agreed that in the case of a Crown Court confiscation order or fine, the period of imprisonment in default of payment is imposed for the purposes of section 79 when the Crown Court discharges its statutory duty under section 139(2) of the 2000 Sentencing Act and fixes the (anticipatory) term in default.
+That is clearly the position where the period of imprisonment in default is imposed by the magistrates court, since section 79(1) specifically says that on full payment the default term ceases to have effect whether or not the person has been committed to prison, thus providing for the case permitted by section 77(2) where a warrant of commitment has been issued, but not yet executed.
+It also follows from section 150 of the Magistrates Courts Act, to which the courts below were not referred.
+That definition section provides: imprisonment means pass a sentence of impose imprisonment or fix a term of imprisonment for failure to pay any sum of money, or for want of sufficient distress to satisfy any sum of money, or for failure to do or abstain from doing anything required to be done or left undone.
+This construction is also necessary to make sense of section 140(3) of the 2000 Sentencing Act, to which the courts below were not referred.
+This section is in more expansive form than its predecessor, section 32 of the Powers of Criminal Courts Act 1973.
+It makes clear by subsection 140(3)(b) that the default term fixed by the Crown Court may already have been reduced under section 79(2) of the Magistrates Court Act 1980 before the magistrates undertake the assessment of the length of any warrant of commitment.
+Lastly, this construction is clearly assumed by the Magistrates Courts Rules 1981 (SI 1981/552), to which the courts below were again not referred.
+These rules provide for the persons to whom part or full payment may be made for the purposes of section 79(2).
+By rule 55(1)(a) the designated officer of the court may receive such payment unless there has been issued a warrant of commitment, whereas if there is such a warrant, the payment must be made by rule 55(1)(c) or (d) either to a constable holding it (for execution) or the prison governor.
+That again demonstrates that payments which fall within section 79(2) can be made before a warrant of commitment is issued, although clearly they can only be made after the default term has been imposed.
+Thus the default term in the case of Crown Court orders must be the term that court imposed at the time of making its order.
+Does section 79(2) include interest in its starting point?
+That leads one to the issue in the present case.
+If the court which imposes the default term is, for the purposes of section 79(2), the Crown Court in the case of a confiscation order, which is the correct starting point for the arithmetical giving of proportionate credit for part payment? Is it the sum stated in the order as originally made by the Crown Court, or is it that sum plus any interest which has accrued by the time the exercise is conducted by the magistrates? In the present case, is it 5.4m or is it 8.1m?
+For the Secretary of State, Mr Perry QC powerfully submits that it must be the original sum plus interest.
+The plain purpose of the various statutory provisions for interest, including section 10 of the Drug Trafficking Act, is, he submits, that interest is treated for any enforcement purpose as added to the confiscation order and is expressly made part of the amount to be recovered from [the defendant] under the confiscation order.
+So, it is said, the references in section 79(2) to the term set in default of payment of any sum adjudged to be paid must, by what he refers to as a necessary statutory fiction, be references to the sum fixed by the original confiscation order plus interest.
+That is to do no more, he argues, than is already provided for in section 79(2) for the costs and charges of any distress which has been levied, which are expressly added to the principal sum outstanding.
+Those also, he submits, will in the case of a Crown Court order, necessarily have been incurred after the default term was fixed by that Court.
+He points to the plain intention, gathered from section 10(1), that interest is to be paid, and to the fact that in the case of a criminal who is in default of payment of the principal sum, civil means of enforcement of interest are unlikely to be effective.
+He rightly reminds us that a confiscation order is premised on the proposition that the defendant has the means to pay, so that any default is his election.
+If circumstances change in a way which reduces his ability to pay, the various confiscation statutes provide a procedure for application for a certificate of inadequacy and consequent downward reduction in the amount of the confiscation order.
+Those arguments may well reflect, in a purposive manner, the kind of regime for which the successive statutory referrals might have provided.
+The difficulty with them lies in the operative words of section 79(2), which are the only ones which provide for the treatment of part payments.
+They say expressly that the days to be deducted are to be the number which bear the same proportion to the total default term imposed (by the Crown Court) as the part payments bear to so much of the said sum as was due at the time the period of detention was imposed.
+If the Secretary of States argument is to be accepted, the words at the time the period of detention was imposed have to be done no little violence.
+At the time the Crown Court imposed the default term, there was as yet no interest accrued at all.
+We have concluded that this straining of the wording of section 79(2) cannot be justified in circumstances where it would adversely impact on the period of imprisonment to which a person would be subject.
+Penal legislation is construed strictly, particularly where the penalty involves deprivation of liberty.
+The words of section 79(2) do not provide clearly for a period of imprisonment calculated on the basis for which the Secretary of State contends; on the contrary, they suggest the natural construction that the starting point for the arithmetical calculation of reduction in days of imprisonment is the sum outstanding at the time of the Crown Court order.
+Nor is the Secretary of States construction warranted by the example of the reference in section 79(2) to the costs and charges of distress, where such have been incurred.
+Since section 79(2) was plainly not drafted with confiscation, or for that matter Crown Court fines, in mind, the reference is adequately explained by the orthodox case of the magistrates first issuing a warrant for distress and only subsequently fixing the default term for non payment; in such a case the reference to the sum outstanding at the time the period of detention was imposed makes perfectly good sense.
+In any event, the addition of such costs and charges is expressly provided; that does not mean that an equivalent provision can be read in as a consequence of a provision in a different statute, namely section 10(1) of the Drug Trafficking Act.
+A scheme under which the period of imprisonment served in default of payment in full of the amount specified in the confiscation order is based on the entire amount outstanding, including interest, may or may not be what the framers of the confiscation legislation might have wished for or intended if the point had been considered.
+However, because the means adopted took the form of statutory reference (and re reference) to provisions which were drafted for a different purpose and without confiscation in mind, they have not achieved that effect.
+If it is desired that they should do so, express legislation will be needed.
+It is also of some relevance that the practical consequences of the Secretary of States proposed construction would, without specific machinery, be difficult to work out.
+Interest accrues daily, so the net amount outstanding would also vary daily.
+That difficulty may be met by a calculation geared to the particular day (or days) on which any part payment is made.
+But additionally, this construction would have the effect of progressively reducing the incentive to make part payment, as interest rises, because the days credited for such part payment would progressively reduce.
+Nor would such a scheme provide any consequences at all for the not uncommon defendant who simply makes no payment whatever.
+Conclusion
+For these reasons we would allow the appeal.
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+The interim injunction the subject of this application has attracted much attention.
+Whatever the decision of the Supreme Court, it will probably give rise to further, entirely legitimate, debate on the value of such injunctions in the internet age.
+But the majority of this Court has concluded that, in the light of legal principles that were effectively uncontroversial and for reasons more particularly summarised in paras 44 to 45 below, the application for permission to appeal should be granted and the interim injunction continued until trial or further order.
+The ground on which the Court acts is to preserve the privacy interests of the appellant, his partner and their young children in England and Wales, pending a trial.
+Without the injunction, there will be further unrestricted and extensive coverage in hard copy as well as other media in England and Wales, and the purpose of any trial will be largely undermined.
+On the basis of the case law, the fact that there has been significant internet and social media coverage (and limited hard copy publication outside the jurisdiction) which already invades the privacy of the appellant and his family is not decisive.
+News Group Newspapers Ltds (NGNs) purpose in applying to set aside the interim injunction is to add extensively and in a qualitatively different medium to such invasions, without, on present evidence, having any arguably legitimate basis for this and at the risk only of having to pay damages after a trial.
+Some may still question whether the case merits the weight of legal attention which it has received.
+But the law is there to protect the legitimate interests of those whose conduct may appear unappealing, as well as of children with no responsibility for such conduct.
+The Supreme Court must in any event apply the law as it has been laid down by Parliament, paying due regard to the case law which Parliament has required it to take account.
+The Court must do so in the present case in relation to what, on present evidence, appears to be a clearly unjustified proposed further invasion of the relevant privacy interests one which is unsupported by any countervailing public interest in a legal sense, however absorbing it might be to members of the public interested in stories about others private sexual encounters.
+At trial, it will be open to the respondents to seek to show some genuine public interest in publication.
+But none has been shown to date, and, pending trial, the point of any trial should not be prejudged or rendered irrelevant by unrestricted disclosure.
+The Court is well aware of the lesson which King Canute gave his courtiers.
+Unlike Canute, the courts can take steps to enforce its injunction pending trial.
+As to the Mail Onlines portrayal of the law as an ass, if that is the price of applying the law, it is one which must be paid.
+Nor is the law one sided; on setting aside John Wilkes outlawry for publishing The North Briton, Lord Mansfield said that the law must be applied even if the heavens fell: R v Wilkes (1768) 4 Burr 2527, 98 ER 327 (347).
+It is unlikely that the heavens will fall at our decision.
+It will simply give the appellant, his partner and their young children a measure of temporary protection against further and repeated invasions of privacy pending a full trial which will not have been rendered substantially irrelevant by disclosure of relatively ancient sexual history.
+The facts
+We can for the most part take the facts from Jackson LJs judgment in the Court of Appeal.
+PJS, the claimant (now the appellant) is in the entertainment business and is married to YMA, a well known individual in the same business.
+They have young children.
+In 2007 or 2008, the claimant met AB and, starting in 2009, they had occasional sexual encounters.
+AB had a partner, CD.
+By text message on 15 December 2011, the claimant asked if CD was up for a three way, to which AB replied that CD was.
+The three then had a three way sexual encounter, after which the sexual relationship between PJS and AB came to an end, though they remained friends for some time.
+By or in early January 2016, AB and CD approached the editor of the Sun on Sunday, and told him about their earlier sexual encounters with PJS.
+The editor notified PJS that he proposed to publish the story.
+PJSs case is that publication would breach confidence and invade privacy.
+He brought the present proceedings accordingly, and applied for an interim injunction to restrain the proposed publication.
+Cranston J refused an interim injunction on 15 January, but the Court of Appeal (Jackson and King LJJ) on 22 January 2016 allowed an appeal and restrained publication of the relevant names and of details of their relationship: [2016] EWCA Civ 100.
+The Court provided the parties with its full judgment, but published only a redacted version omitting the names and details.
+The injunction was effective for eleven weeks, but AB took steps to get the story published in the United States.
+In consequence a magazine there published an account of PJSs sexual activities on 6 April 2016, naming those involved.
+But, as a result of representations by the appellants solicitors, it restricted publication to hardcopy editions only, and geo blocked online publication so as to restrict this to the United States.
+The evidence is that, apart from the one further state publication, the story was not taken up in America.
+Some other similar articles followed in Canada and in a Scottish newspaper.
+But, whatever the source, details started to appear on numerous websites, one of which contained equivalent detail to that which had appeared in the American magazine, as well as in social media hashtags.
+Various English and Welsh newspapers have in these circumstances published vigorous complaints about their own inability to publish material which was available on the internet.
+The Times on 8 April 2016 reported that the injunction was being flouted on social media after the well known man was named in the US and that the Society of Editors had condemned such injunctions as bringing the whole system into disrepute.
+The Sun on 10 April 2016 called on our loyal readers to help end the farce that means we cant tell you the full story of the celebrity fathers threesome by writing to their MPs to get them to voice the public outcry in parliament and bring an end to this injustice.
+It set out a suggested form of letter.
+It appears that an MP was by 11 April 2016 proposing to name the appellant in Parliament, something that intervention by the Speaker may have prevented.
+The Mail Online on 14 April 2016 reported that it had held a survey which found that 20 percent of the public already know who he is while others said they know how to find out.
+The online tool Google Trends shows a massive increase in the number of internet searches relating to the appellant and YMA by their true names.
+The Court of Appeal noted that the appellants solicitors have been assiduous in monitoring the internet and taking steps, wherever possible, to secure removal of offending information from URLs and web pages, but concluded that this was a hopeless task: the same information continued to reappear in new places, and tweets and other forms of social networking also ensured its free circulation.
+On the other hand, the evidence of the appellants solicitor, Mr Tait, is that social media are responding to objections of invasion of privacy, that a material number of links has been removed, disabled or become inactive and that Mr Tait is confident that, with the continuation of the injunction, this process will continue and it will become increasingly difficult to identify the appellant online.
+In the light of the Court of Appeals assessment and its own review of the material available, the Supreme Court must however assume that a significant body of internet material identifying those involved by name and reproducing details from the original American publication about their alleged activities still exists and will continue to do so for the foreseeable future.
+On 12 April 2016 NGN applied to the Court of Appeal to set aside the interim injunction granted on 22 January 2016, on the grounds that the protected information was now in the public domain, and that the injunction therefore served no useful purpose and was an unjustified interference with NGNs own rights under article 10 of the European Convention on Human Rights (ECHR).
+By a judgment published in slightly redacted terms on 18 April 2016, the Court of Appeal (Jackson, King and Simon LJJ) discharged the injunction: [2016] EWCA Civ 393.
+On 21 April 2016 the Supreme Court heard the appellants application for permission to appeal together with submissions relevant to the appeal, if permission was granted, and continued the interim injunction pending the delivery of the present judgment.
+The statutory provisions
+The appeal falls to be determined by reference to the Human Rights Act 1998 (HRA) and the ECHR rights scheduled to it.
+Those rights include articles 8 and 10, reading: Article 8 Right to respect for private and family life. 1.
+Everyone has the right to respect for his private and family life, his home and his correspondence. 2.
+There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
+Article 10 Freedom of expression. 1.
+Everyone has the right to freedom of expression.
+This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
+This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2.
+The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
+HRA Section 12 provides: Freedom of expression. (1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression. (2) If the person against whom the application for relief is made (the respondent) is neither present nor represented, no such relief is to be granted unless the court is satisfied a. that the applicant has taken all practicable steps to notify the respondent; or b. that there are compelling reasons why the respondent should not be notified. (3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed. (4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to a. the extent to which i. the material has, or is about to, become available to the public; or ii. it is, or would be, in the public interest for the material to be published; b. any relevant privacy code.
+Cranston Js decision
+When refusing an injunction on 15 January 2016, Cranston J: accepted that the appellant had a reasonable expectation that his sexual (i) activities would remain private, (ii) added that he was especially troubled by the childrens privacy interests under ECHR article 8, though these could not operate as a trump card, (iii) rejected the respondents suggestion that the proposed publication went to any relevant matter of public debate, (iv) identified the appellant and his partner as portraying an image to the world of a committed relationship, accepted that commitment may not entail monogamy, but concluded that there was a public interest in correcting the image by disclosing that the appellant had engaged in the sort of casual sexual relationships demonstrated by the evidence, and (v) on that basis, and noting that the threshold test for granting an interim injunction was in this context higher than the generally applicable test in American Cyanamid Co v Ethicon Ltd [1975] AC 396, refused an injunction.
+The Court of Appeal judgment of 22 January 2016
+The Court of Appeal in its judgment of 22 January 2016 held that there were two significant shortcomings in the judges approach, which enabled (or required) it to re open the matter: (i) although the judge had correctly identified the childrens article 8 privacy rights, he had not explained how he had taken them into account; (ii) once it was accepted that commitment may not entail monogamy, there was no false image to require correction by disclosure of the appellants occasional sexual encounters with others.
+In this connection, the Court of Appeal concluded positively that on the evidence before it the image presented by the appellant and his partner had been one of commitment not monogamy.
+The Court of Appeal went on to identify the well established principle that kiss and tell stories which do no more than satisfy readers curiosity about the private lives of other persons, however well known to the public, do not serve any legally recognised public interest: see eg Couderc and Hachette Filipacchi Associs v France (Application No 41454/07), paras 100 101 and Axel Springer AG v Germany (Application No 39954/08), para 91.
+The Supreme Court will revert to this principle in paras 22 25 below.
+There was a respondents notice alleging additional grounds for upholding the judges decision.
+In this connection, the Court of Appeal agreed with the judge that the proposed publication did not go to any matter of public debate: para 12(iii) above.
+Referring to Hutcheson v News Group Newspapers Ltd [2011] EWCA Civ 808, which itself refers back to Terry v Persons Unknown [2010] EWHC 119 (QB), the Court accepted that the respondents were entitled to publish articles critical of people in the public eye, even though there was nothing illegal about their conduct.
+But it noted that the appellant had an expectation that his sexual encounters would remain private, that the proposed story would, if published, be devastating for him and that on any proper balancing his article 8 right to privacy must prevail over the respondents article 10 right to publish an account of the adultery.
+It added that the position of the children was also a factor to consider: the proposed article would generate a media storm and much public interest in the appellants family, including increased press attention to the children, meaning that the children would in due course learn about the relevant matters from school friends and the internet.
+On the evidence before the Court, the appellant was likely to establish at trial that publication should not be allowed, and had therefore satisfied the test in section 12(3) of the Human Rights Act 1998.
+The appeal was therefore allowed and an injunction granted.
+The Court of Appeal judgment of 18 April 2016
+Jackson LJ, with which King and Simon LJJ agreed: In its judgment of 18 April 2016, the Court of Appeal in a judgment given by (i) accepted that claims based on confidentiality were to be distinguished from claims based on privacy, in that, while claims for confidentiality generally fail once information has passed into the public domain, the law extends greater protection to privacy rights than rights in relation to confidential material (paras 35 36); (ii) concluded that a claim for misuse of private information can and often will survive when information is in the public domain, continuing (para 39): It depends on how widely known the relevant facts are.
+In many situations the claim for misuse of private information survives, but is diminished because that which the defendant publishes is already known to many readers.
+The publication is an invasion of privacy and hurtful for the claimant, but is not as egregious as it would otherwise be.
+That does not deprive the claimant of his claim for damages, but it weakens his claim for an injunction.
+This is for two reasons.
+First, the article 8 claim carries less weight, when the court carries out the balancing exercise of article 8 rights as against article 10 rights.
+Secondly, injunctions are a discretionary remedy.
+The fact that material is generally known is relevant to the exercise of the courts discretion. (iii) added that: 40.
+In this regard it is important to note that HRA section 12 does not affect the existence of the claimants article 8 claim nor does it provide any defence to the tort of misusing private information.
+The effect of section 12 is twofold.
+First, it enhances the weight which article 10 rights carry in the balancing exercise.
+Secondly, it raises the hurdle which the claimant must overcome in order to obtain an interim injunction. 41.
+Although it will be a matter for the trial judge at the end of the day, I adhere to the view I expressed in January, namely that the story which NGN proposes to publish is likely to be a breach of the claimants article 8 rights.
+What has changed is the weight which the claimants article 8 rights carry, when balanced against NGNs article 10 rights.
+Also the fact that material is widely known must be relevant to the courts discretion.
+(iv) accepted that the court should not set aside an injunction merely because it has met with widespread disobedience or defiance (para 42), but noted that this was not a case of disobedience by the media, and that the difficulty about any submission of defiance was that the Internet and social networking have a life of their own; furthermore, that an English court has little control over what foreign newspapers and magazines may publish (para 44); and that it does appear that those who want to find out the individuals identities have already done so (para 45).
+In these circumstances, the Court concluded, in Jackson LJs words, that 47.
+In the situation which now prevails, I still think that the claimant is likely to establish a breach of ECHR article 8.
+But, notwithstanding the limited public interest in the proposed story, I do not think that the claimant is likely to obtain a permanent injunction.
+I reach this conclusion for seven reasons: i) Knowledge of the relevant matters is now so widespread that confidentiality has probably been lost. ii) Much of the harm which the injunction was intended to prevent has already occurred.
+The relatives, friends and business contacts of PJS and YMA all know perfectly well what it is alleged that PJS has been doing.
+The wall to wall excoriation which the claimant fears (CTB at 24) has been taking place for the last two weeks in the English press.
+There have been numerous headlines such as celebrity love cheat and Gag celeb couple alleged to have had a threesome.
+Many readers know to whom that refers. iii) The material which NGN wishes to publish is still private, in the sense that it concerns intimate sexual matters.
+I reject Mr Millars submission that PJSs article 8 rights are no longer engaged at all.
+First, there are still many people, like Mr Brownes hypothetical purchaser of the Financial Times, who do not know about PJSs sex life.
+Secondly, NGNs planned publication in England will be a further unwelcome intrusion into the private lives of PJS and his family.
+On the other hand, it will not be a shock revelation, as publication in January would have been.
+The intrusion into the private lives of PJS and his family will be an increase of what they are suffering already.
+If the interim injunction stands, newspaper articles will continue to appear re cycling the contents of the redacted judgment and calling upon PJS to identify himself.
+Websites discussing the story will continue to pop up.
+As one is taken down, another will appear.
+This process will continue up to the trial date. iv) v) As stated in para 59 of the previous redacted judgment (para 61 of the full judgment), NGN is entitled to publish articles criticising people in the public eye.
+Therefore it has an article 10 right to publish an account of PJSs conduct.
+That article 10 right has to be balanced against PJSs article 8 right for his sexual liaisons to remain a private matter.
+The need to balance article 8 rights against article 10 rights means that there is a limit to how far the courts can protect individuals against the consequences of their own actions. vi) As a result of recent events, the weight attaching to the claimants article 8 right to privacy has reduced.
+It cannot now be said that when the day of trial comes, PJSs article 8 right is likely to prevail over NGNs article 10 right to freedom of expression, such as to warrant the imposition of a permanent injunction. vii) Finally, the court should not make orders which are ineffective.
+It is in my view inappropriate (some may use a stronger term) for the court to ban people from saying that which is common knowledge.
+This must be relevant to the exercise of the court's discretion.
+Injunctions are a discretionary remedy. 48.
+I turn next to the position of YMA and the children.
+As explained in para 39 of my previous judgment, the interests of other family members, in particular children, are a significant consideration, but they cannot be a trump card.
+Paragraph 61 of the redacted judgment (para 63 of the full judgment) referred to the likelihood that, in the absence of an injunction, the children would in the future learn about these matters from school friends or the Internet.
+That is now a less material consideration.
+In my view, whether or not the court grants an injunction, it is inevitable that the two children will in due course learn about these matters.
+Analysis of the Court of Appeals judgment of 18 April 2016
+(i) HRA section 12
+There is, as all members of the Supreme Court conclude, a clear error of law in the Court of Appeals reasoning in relation to section 12.
+For reasons given in para 20 below, it consists in the self direction that section 12 enhances the weight which article 10 rights carry in the balancing exercise (para 40).
+The Court of Appeals further self direction, that section 12 raises the hurdle which the claimant must overcome in order to obtain an interim injunction is unexceptionable, in so far as section 12 replaces the general American Cyanamid test, focused on the balance of convenience, with a test of whether the appellant is likely to establish that publication should not be allowed at trial.
+The position was stated more particularly by Lord Nicholls said in Cream Holdings Ltd v Banerjee [2004] UKHL 44; [2005] 1 AC 253, para 22, in a speech with which the other members of the House agreed: Section 12(3) makes the likelihood of success at trial an essential element in the courts consideration of whether to make an interim order.
+There can be no single, rigid standard governing all applications for interim restraint orders.
+Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicants prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case.
+As to what degree of likelihood makes the prospects of success sufficiently favourable, the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably (more likely than not) succeed at the trial.
+In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights.
+But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite.
+Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal.
+The Court of Appeals initial self direction is however contrary to considerable authority, including authority at the highest level, which establishes that, even at the interlocutory stage, (i) neither article has preference over the other, (ii) where their values are in conflict, what is necessary is an intense focus on the comparative importance of the rights being claimed in the individual case, (iii) the justifications for interfering with or restricting each right must be taken into account and (iv) the proportionality test must be applied: see eg In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593, para 17, per Lord Steyn, with whom all other members of the House agreed; McKennitt v Ash [2006] EWCA Civ 1714; [2008] QB 73, para 47, per Buxton LJ, with whom the other members of the Court agreed; and Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB), para 28, per Eady J, describing this as a very well established methodology.
+The exercise of balancing article 8 and article 10 rights has been described as analogous to the exercise of a discretion: AAA v Associated Newspapers Ltd [2013] EWCA Civ 554, para 8).
+While that is at best only an analogy, the exercise is certainly one which, if undertaken on a correct basis, will not readily attract appellate intervention.
+The Court of Appeals error in its initial self direction is, however, one of potential significance, since it necessarily affects the balance.
+By itself it would require the Supreme Court to re exercise the discretion which the Court of Appeal exercised in setting aside the injunction which it had previously granted.
+But there are further aspects of the Court of Appeals treatment of the issues which together lead to the same conclusion.
+(ii) The reference to a limited public interest
+The Court of Appeal in my opinion also erred in the reference it made, at three points in its judgment (paras 13, 30 and 47), to there being in the circumstances even a limited public interest in the proposed story and in its introduction of that supposed interest into a balancing exercise (para 47(v)).
+In identifying this interest, the Court of Appeal relied upon a point made by an earlier Court of Appeal in Hutcheson (and before that by Eady J in Terry), namely that the media are entitled to criticise the conduct of individuals even where is nothing illegal about it.
+That is obviously so.
+But criticism of conduct cannot be a pretext for invasion of privacy by disclosure of alleged sexual infidelity which is of no real public interest in a legal sense.
+It is beside the point that the appellant and his partner are in other contexts subjects of public and media attention factors without which the issue would hardly arise or come to court.
+It remains beside the point, however much their private sexual conduct might interest the public and help sell newspapers or copy.
+The matter is well put by Anthony Lester (Lord Lester of Herne Hill) in a recent book, Five Ideas to fight for (Oneworld, 2016), p 152: News is a business and not only a profession.
+Commercial pressures push papers to publish salacious gossip and invasive stories.
+It is essential to ensure that those pressures do not drive newspapers to violate proper standards of journalism.
+That criticism of supposed infidelity cannot be the guise under which the media can disclose kiss and tell stories of no public interest in a legal sense is confirmed by a series of European Court of Human Rights (ECtHR) judgments.
+Thus, in Armonien v Lithuania [2009] EMLR 7, para 39, the Court emphasised the duty of the press to impart information and ideas on matters of public interest, but noted that a fundamental distinction needs to be made between reporting facts even if controversial capable of contributing to a debate in a democratic society and making tawdry allegations about an individuals private life; In Mosley v United Kingdom [2012] EMLR 1, para 114, the Court reiterated that there is a distinction to be drawn between reporting facts even if controversial capable of contributing to a debate of general public interest in a democratic society, and making tawdry allegations about an individuals private life (see Armonien, para 39).
+In respect of the former, the pre eminent role of the press in a democracy and its duty to act as a public watchdog are important considerations in favour of a narrow construction of any limitations on freedom of expression.
+However, different considerations apply to press reports concentrating on sensational and, at times, lurid news, intended to titillate and entertain, which are aimed at satisfying the curiosity of a particular readership regarding aspects of a persons strictly private life (Von Hannover v Germany (2005) 40 EHRR 1, para 65; Hachette Filipacchi Associs (ICI PARIS) v France, no 12268/03, para 40; and MGN Ltd v United Kingdom (2001) 53 EHRR 5, para 143).
+Such reporting does not attract the robust protection of article 10 afforded to the press.
+As a consequence, in such cases, freedom of expression requires a more narrow interpretation (see Socit Prisma Presse v France (dec), nos 66910/01 and 71612/01, 1 July 2003; Von Hannover, cited above, para 66; Leempoel & SA E Cin Revue v Belgium, no 64772/01, para 77, 9 November 2006; Hachette Filipacchi Associs (ICI PARIS), cited above, para 40; and MGN Ltd, cited above, para 143.
+Most recently, in Couderc and Hachette Filipacchi Associs v France (Application No 40454/07), paras 100 101, the Court said: 100.
+The Court has also emphasised on numerous occasions that, although the public has a right to be informed, and this is an essential right in a democratic society which, in certain special circumstances, can even extend to aspects of the private life of public figures, articles aimed solely at satisfying the curiosity of a particular readership regarding the details of a persons private life, however well known that person might be, cannot be deemed to contribute to any debate of general interest to society (see Von Hannover, cited above, para 65; MGN Ltd v United Kingdom, no 39401/04, para 143, 18 January 2011; and Alkaya v Turkey, no. 42811/06, para 35, 9 October 2012). 101.
+Thus, an article about the alleged extra marital relationships of high profile public figures who were senior State officials contributed only to the propagation of rumours, serving merely to satisfy the curiosity of a certain readership (see Standard Verlags GmbH v Austria (No 2), no 21277/05, para 52, 4 June 2009).
+Equally, the publication of photographs showing scenes from the daily life of a princess who exercised no official functions was aimed merely at satisfying the curiosity of a particular readership (see Von Hannover, cited above, para 65, with further references).
+The Court reiterates in this connection that the public interest cannot be reduced to the publics thirst for information about the private life of others, or to the readers wish for sensationalism or even voyeurism.
+In these circumstances, it may be that the mere reporting of sexual encounters of someone like the appellant, however well known to the public, with a view to criticising them does not even fall within the concept of freedom of expression under article 10 at all.
+But, accepting that article 10 is not only engaged but capable in principle of protecting any form of expression, these cases clearly demonstrate that this type of expression is at the bottom end of the spectrum of importance (compared, for example, with freedom of political speech or a case of conduct bearing on the performance of a public office).
+For present purposes, any public interest in publishing such criticism must, in the absence of any other, legally recognised, public interest, be effectively disregarded in any balancing exercise and is incapable by itself of outweighing such article 8 privacy rights as the appellant enjoys.
+(iii) The distinction between rights of confidence and privacy rights
+Mr Desmond Browne QC for the appellant submits the Court of Appeal also erred by too close an assimilation of a claim based on the tort of invasion of privacy with breach of confidence.
+Jackson LJ recognised, correctly, that the former attracts greater protection than the latter (para 36 of his judgment: see para 17(i) above).
+But he went on in para 39 to suggest that, whether a claim for misuse of private information will survive when information is in the public domain depends on how widely known the relevant facts are.
+That suggests a quantitative test, measuring what has already been disclosed with what is yet undisclosed.
+That is a test which is not only appropriate but potentially decisive in the context of an application based on confidentiality, as witnessed famously by Sunday Times v United Kingdom (No 2) (Spycatcher No 2) (1991) 14 EHRR 229, paras 54 55.
+There, the loss of secrecy by 30 July 1987 was central to the European Court of Human Rights conclusion that injunctions could after that date no longer be justified either as necessary to ensure a fair trial or to protect national security.
+The promotion of the efficiency and reputation of the Security Service constituted insufficient justification.
+However, different considerations apply to the present privacy claim.
+First, as Mr Browne submits, a quantitative approach overlooks the invasiveness and distress involved, even in repetition of private material.
+Second, open hard copy exposure, as well no doubt as further internet exposure, is likely to add significantly to the overall intrusiveness and distress involved.
+I return to the second point in paras 34 37 below.
+As to the first point, there is substantial recent authority recognising that even the repetition of known facts about an individual may amount to unjustified interference with the private lives not only of that person but also of those who are involved with him: JIH v News Group Newspapers Ltd [2010] EWHC 2818 (QB), para 59, per Tugendhat J.
+The Court of Appeal referred (in para 25) to the submission which Mr Browne made before it to like effect, and to the supporting authority which he cited, but did not, Mr Browne submits, give effect to it in its decision.
+The point made in JIH is worth elaborating for its resonance on this appeal.
+It can be traced back to Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 260F, where Lord Keith gave examples of circumstances in which a person could be entitled to restrain disclosure of private information, which had received widespread publication abroad.
+It was taken up by Eady J in McKennitt v Ash [2006] EMLR 178, para 81, by Tugendhat J in Green Corns Ltd v Claverley Group Ltd [2005] EMLR 748, paras 78 79, where he said that the question was not whether information was generally accessible, but rather whether an injunction would serve a useful purpose and by Briggs J in Rocknroll v News Group Newspapers Ltd [2013] EWHC 24 (Ch), paras 22 26, where he also said that HRA section 12(4)(a)(i) in his judgment creates no separate or different test , at least where there is no suggestion that the material is about to become available to the public.
+Eady J and Tugendhat J have since further elaborated the significance of the principle in successive judgments in CTB v News Group Newspapers Ltd [2011] EWHC 1326 (QB) and 1334 (QB).
+In CTB, as in the present case, an interim injunction had been granted to restrain disclosure of information about an alleged sexual relationship.
+In CTB the claimant was a well known footballer who was married and had a family.
+In the five or so weeks after the injunction was granted, substantial information, from sources which could not be attributed to the defendant, became available on Twitter and the internet generally identifying or pointing towards the footballer.
+The defendants argued in effect that privacy injunctions (and no doubt other forms of injunction also) had ceased to serve any useful purpose in an age when information could be put out on various networks within or outside this jurisdiction by persons other than the immediate defendant.
+More specifically, the defendants in CTB also placed reliance on Eady Js refusal of an injunction to Mr Max Mosley in Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB).
+Eady J had there said that: The court should guard against slipping into playing the role of King Canute.
+Even though an order may be desirable for the protection of privacy, and may be made in accordance with the principles currently being applied by the courts, there may come a point where it would simply serve no useful purpose and would merely be characterised, in the traditional terminology, as a brutum fulmen.
+It is inappropriate for the court to make vain gestures.
+In CTB Eady J explained why this statement did not cover the circumstances in CTB: 18.
+The circumstances here are rather different.
+In Mosley, I took the view that there was no point in granting an injunction because, even before the application was made, several hundred thousand people had seen the intimate video footage which NGN had put on line conduct that was recently characterised by the ECtHR as a flagrant and unjustified intrusion: Mosley v UK (Application No 48009/08), 10 May 2011 at 104.
+In a real sense, therefore, it could be said that there was nothing left for the court to protect by an injunction. 19.
+Here, the Internet allegations prayed in aid by Mr Spearman took place after the order was made.
+Different policy considerations come into play when the court is invited to abandon the protection it has given a litigant on the basis of widespread attempts to render it ineffective.
+Furthermore, unlike the Mosley case, there is no doubt other information that Ms Thomas could yet publish, quite apart from this claimants identity, which is not yet in the public domain.
+The injunction thus continues to serve a useful purpose, from the claimants point of view, for that reason alone, since she is amenable to the jurisdiction of the court.
+Otherwise, he would not seek to maintain it. 20.
+Mr Spearmans application is therefore quite narrow.
+He seeks only to vary the injunction so as to permit the claimant to be identified.
+In the circumstances, Eady J held that even identification should not be permitted.
+It will be apparent that the circumstances in CTB bore some relevant similarities to those of the present case.
+In particular, reliance was placed on internet disclosures subsequent to the original injunction in support of an application to set aside the injunction on the basis that it served no further useful protective purpose.
+This situation was distinguished in principle from that where an injunction is granted after substantial internet disclosure.
+The substantial internet disclosure which had occurred after the injunction was not regarded as justifying the lifting of the injunction.
+The injunction, enforceable against the defendant, was seen as continuing to serve a useful purpose.
+As to the general suggestion that injunctions really have no sensible place in an internet age, Eady J said: 23.
+It is important always to remember that the modern law of privacy is not concerned solely with information or secrets: it is also concerned importantly with intrusion. [That] also largely explains why it is the case that the truth or falsity of the allegations in question can often be irrelevant: see eg McKennitt v Ash [2008] QB 73 at 80 and 87. 24.
+It is fairly obvious that wall to wall excoriation in national newspapers, whether tabloid or broadsheet, is likely to be significantly more intrusive and distressing for those concerned than the availability of information on the Internet or in foreign journals to those, however many, who take the trouble to look it up.
+Moreover, with each exposure of personal information or allegations, whether by way of visual images or verbally, there is a new intrusion and occasion for distress or embarrassment.
+Mr Tomlinson argues accordingly that the dam has not burst.
+For so long as the court is in a position to prevent some of that intrusion and distress, depending upon the individual circumstances, it may be appropriate to maintain that degree of protection.
+The analogy with King Canute to some extent, therefore, breaks down. 25 It may be thought that the wish of NGN to publish more about this story, with a view to selling newspapers and perhaps achieving other commercial advantages, demonstrates that coverage has not yet reached saturation point.
+Had it done so, the story would no longer retain any interest.
+This factor tends, therefore, to confirm my impression that the court's attempts to protect the claimant and his family have not yet become wholly futile. 26.
+In these circumstances, it seems to me that the right question for me to ask, in the light of JIH v News Group Newspapers Ltd [2011] 2 All ER 324 and In re Guardian News and Media Ltd [2010] UKSC 1, is whether there is a solid reason why the claimants identity should be generally revealed in the national media, such as to outweigh the legitimate interests of himself and his family in maintaining anonymity.
+The answer is as yet in the negative.
+They would be engulfed in a cruel and destructive media frenzy.
+Sadly, that may become unavoidable in the society in which we now live but, for the moment, in so far as I am being asked to sanction it, I decline to do so.
+On the other side, , it has not been suggested that there is any legitimate public interest in publishing the story.
+The analysis in these passages is both relevant and indeed largely transposable to the circumstances of the present appeal.
+The same theme was developed by Tugendhat J in the second CTB judgment, which followed the naming in Parliament by an MP of the footballer: Tugendhat J said: It is obvious that if the purpose of this injunction were 3. to preserve a secret, it would have failed in its purpose.
+But in so far as its purpose is to prevent intrusion or harassment, it has not failed.
+The fact that tens of thousands of people have named the claimant on the internet confirms that the claimant and his family need protection from intrusion into their private and family life.
+The fact that a question has been asked in Parliament seems to me to increase, and not to diminish the strength of his case that he and his family need that protection.
+The order has not protected the claimant and his family from taunting on the internet.
+It is still effective to protect them from taunting and other intrusion and harassment in the print media.
+Tugendhat Js reasoning in JIH and Eady Js reasoning in CTB were cited with approval by MacDonald J in H v A (No 2) [2015] EWHC 2630 (Fam), para 47.
+In so far as it is likely that the respondents in the present case would wish to accompany any stories with pictures of the relevant individuals, it is also consistent with the Leveson Inquiry Reports conclusion (para 3.4) that: There is a qualitative difference between photographs being available online and being displayed, or blazoned, on the front page of a newspaper such as the Sun.
+The fact of publication in a mass circulation newspaper multiplies and magnifies the intrusion, not simply because more people will be viewing the images, but also because more people will be talking about them.
+Thus, the fact of publication inflates the apparent newsworthiness of the photographs by placing them more firmly within the public domain and at the top of the news agenda.
+It is right that the Supreme Court should on the present application express its own view on the correctness of the approach taken in the authorities discussed in the preceding paragraphs (paras 26 32).
+In my opinion, the approach is sound in general principle.
+Every case must be considered on its particular facts.
+But the starting point is that (i) there is not, without more, any public interest in a legal sense in the disclosure or publication of purely private sexual encounters, even though they involve adultery or more than one person at the same time, (ii) any such disclosure or publication will on the face of it constitute the tort of invasion of privacy, (iii) repetition of such a disclosure or publication on further occasions is capable of constituting a further tort of invasion of privacy, even in relation to persons to whom disclosure or publication was previously made especially if it occurs in a different medium (see paras 34 37 below).
+However, whether an interim injunction should be granted to restrain an anticipated tortious invasion of privacy raises different considerations from those involved in the simple question whether disclosure or publication would constitute a tortious act.
+The courts have to apply HRA section 12, and, before restraining publication prior to trial, have in particular to be satisfied that the applicant is likely to establish that publication should not be allowed.
+They have, under section 12(4), to have particular regard to the importance of the article 10 right to freedom of expression, although, as already explained (paras 19 20 above), that right has no necessary claim to priority over the need to have due regard to any article 8 privacy right which the applicant for an injunction enjoys.
+Where, as here, the proceedings relate to journalistic material (or conduct connected to such material) the courts must also have particular regard under section 12(4)(a) to two specific factors which point potentially in different directions: (i) (ii) the extent to which the material has, or is about to, become available to the public and the extent to which it is, or would be, in the public interest for the material to be published.
+Under section 12(4)(b), the courts must also have particular regard to any relevant privacy code.
+As to the factor identified in section 12(4)(a)(ii), for reasons already given (paras 21 24 above), the present appeal must be approached, on the evidence presently available, on the basis that there is and would be effectively no public interest in a legal sense in further disclosure or publication.
+As to the factor in section 12(4)(a)(i), the requirement to have particular regard to the extent to which journalistic material (or conduct connected with such material) has, or is about to, become available to the public does not preclude a court, when deciding whether to grant or lift injunctive relief, from having regard to both the nature of the journalistic material involved and the medium in a) which it is, or is to be, expressed, and b) the extent to which it is already available in that medium and the extent to which steps are being or can be taken to remove or limit access to any other publication in that or any other medium.
+In short, the question whether material has, or is about to, become available to the public should be considered with reference to, inter alia, the medium and form in relation to which injunctive relief is sought.
+In the light of the above, I consider that the Court of Appeal focused too narrowly on the disclosures already made on the internet, and did not give due weight to the qualitative difference in intrusiveness and distress likely to be involved in what is now proposed by way of unrestricted publication by the English media in hard copy as well as on their own internet sites.
+There is little doubt that there would be a media storm.
+It would involve not merely disclosure of names and generalised description of the nature of the sexual activities involved, but the most intimate details.
+This would be likely to add greatly and on a potentially enduring basis to the intrusiveness and distress felt by the appellant, his partner and, by way of increased media attention now and/or in the future, their children.
+The Court of Appeal did not do justice to this qualitative difference either when it said that the wall to wall excoriation which the claimant fears has already been taking place for the last two weeks in the English press, as a result of numerous headlines such as celebrity love cheat and Gag couple alleged to have had a threesome (para 47(ii), or when it went on to refer to the likely impact of the proposed publication as a further unwelcome intrusion, increasing what is being suffered already, not a shock revelation, as publication in January would have been (para 47(iii)).
+As to section 12(4)(b), this is of particular relevance in relation to the appellants and his partners children.
+The respondents subscribe to the Independent Press Standards Organisation (IPSO), whose Editors Code of Practice of January 2016 provides that Everyone is entitled to respect for his or her private and family life and that editors will be expected to justify intrusions into any individuals private life without consent (clause 3(i) and (ii)).
+The Code notes that there can be exceptions in the public interest, emphasising however that editors must demonstrate an exceptional public interest to over ride the normally paramount interests of [children under 16]).
+The last point echoes the thinking in article 3(1) of the United Nations Convention on the Rights of the Child (providing that In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration) which has in turn informed the ECtHRs and United Kingdom courts understanding of ECHR article 8: see eg ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166, H v Lord Advocate 2012 SC (UKSC) 308, H (H) v Deputy Prosecutor of the Italian Republic (Genoa) [2013] 1 AC 338 and Zoumbas v Secretary of State for the Home Department [2013] 1 WLR 3690.
+Mr Browne submits that the interests of the appellants children were not given the primacy or importance which they deserved.
+The Court of Appeal in granting injunctive relief in January 2016 identified as relevant consequences of the proposed article both that the children would become the subject of increased press attention, with all that that entails and that, even if they do not suffer harassment in the short term, they are [ie if the proposed article is published] bound to learn about these matters from school friends and the internet in due course.
+The Court of Appeal in deciding to discharge the injunction in April 2016 addressed only the latter consequence, saying that it was now a less material consideration as whether or not the court grants an injunction, it is inevitable that the two children will in due course learn about these matters.
+The Court of Appeal did not expressly advert to the short term risks involved in media attention and communication of the information to young children, and still less did it advert to the qualitative difference between, on the one hand, unrestricted exposure in the hard copy media as well as on internet sites and, on the other hand, internet exposure which the appellant and those advising him have made and intend to continue to make every effort to restrict, so far as lies within their power.
+I prefer simply to agree with what Lady Hale says in this area in the open part of her judgment, without finding it necessary to refer to or rely on what is said in the redacted part.
+(iv) An effective remedy
+Mr Browne makes a fourth criticism of the Court of Appeals approach to the exercise of its discretion.
+The Court, having concluded that the appellant was likely at trial to establish that publication was a tortious invasion of privacy, nonetheless left the appellant to a claim for damages.
+It is therefore a criticism of the Court of Appeals exercise of the discretion which, as Lord Nicholls recognised in Cream Holdings, exists under HRA section 12 once a court has decided that a proposed publication is likely to be tortious and goes on to consider whether the applicant is also likely to establish at trial that publication should not be allowed.
+By exercising its discretion so as to discharge the injunction, Mr Browne submits, the Court of Appeal failed to ensure that the appellants privacy rights were practical and effective: Von Hannover v Germany, para 40, Armonien v Lithuania, para 38.
+The submission must, however, be approached with caution at a European level, because in Mosley v United Kingdom [2012] 2012] EMLR 1, para 120, the ECtHR (when considering whether the Convention required the media, before publishing potentially private material, to inform the subject of such material) observed that in its examination to date of the measures in place at domestic level to protect article 8 rights in the context of freedom of expression, it has implicitly accepted that ex post facto damages provide an adequate remedy for violations of article 8 rights arising from the publication by a newspaper of private information.
+The ECtHR went on to explain Armonien v Lithuania as a case where damages had not provided an adequate remedy, because of the derisory sum that had been awarded.
+On the other hand, in Mosley v United Kingdom the ECtHR was primarily engaged in delimiting the scope of ECHR rights, particularly with regard to pre notification, at a European level.
+It was not excluding the possibility of or justification for a prior restraint on publication in appropriate cases at a domestic level.
+Indeed, it upheld such a prior restraint in Editions Plon v France (2006) 42 EHRR 36.
+Further, it said this in Mosley (para 117): 117.
+Finally, the Court has emphasised that while article 10 does not prohibit the imposition of prior restraints on publication, the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court.
+This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest (see Observer and Guardian v United Kingdom (26 November 1991, (1992) 14 EHRR 153, para 60).
+The Court would, however, observe that prior restraints may be more readily justified in cases which demonstrate no pressing need for immediate publication and in which there is no obvious contribution to a debate of general public interest.
+In the present case, it can be said that there is no urgency about any publication, as well as no evident contribution to any debate of general public interest.
+At a domestic level, the Court of Appeal has itself also recognised that the refusal of an interlocutory injunction can operate as a strong potential disincentive to respect for aspects of private life and that, depending on the circumstances, it may only be by the grant of such an injunction that privacy rights can be satisfactorily protected: Douglas v Hello! Ltd (No 3) [2006] QB 125, paras 257 and 259; and that such an injunction may be the only remedy which is of any value: A v B plc [2003] QB 195, para 11.
+Damage done by publication of a defamatory statement can be redressed by a public finding at trial that the allegation was false, but an invasion of privacy cannot be cured in a similar way, and for that reason there may never be a trial, whatever damages might be recoverable.
+These points are also recognised in the academic writing: see eg Freedom of Speech (OUP, 2006), by Professor Eric Barendt, p 137 and Privacy and Press Freedom (Blackstone 1995), by Professor Raymond Wacks, p 156.
+Mr Browne further notes, with reference to the first instance decision of Mosley v News Group Newspapers [2008] EMLR 20, that it has been held at first instance that exemplary or punitive damages are not recoverable at common law for misuse of private information.
+On the other hand, the contrary remains open to argument at higher levels, and whether an account of profits might be claimed is likewise open. (In future, there may be a statutory possibility of obtaining an award of exemplary damages against a publisher not a member of an approved regulator; that is under sections 34 36 of the Crime and Courts Act 2013, if a court were to be satisfied that the respondents conduct has shown a deliberate or reckless disregard of an outrageous nature for the claimants rights, that the conduct is such that the court should punish the defendant for it and that other remedies would not be adequate to punish that conduct.
+But no approved regulator at present exists, so that the section has no application to the present case.)
+In any event, whether or not substantial or even exemplary damages could be recovered in the present case is not decisive of the question whether an interim injunction should be granted.
+Once again, it is necessary to consider the particular facts.
+Here, it is highly likely, having regard to the nature of the material sought to be published and the identity and financial circumstances of the appellant, that the appellants real concern is indeed with the invasion of privacy that would be involved in further disclosure and publication in the English media, and that any award of damages, however assessed, would be an inadequate remedy.
+Conclusions
+The circumstances of this case present the Supreme Court with a difficult choice.
+As in the Court of Appeal, so before the Supreme Court the case falls to be approached on the basis that the appellant is likely at trial to establish that the proposed disclosure and publication is likely to involve further tortious invasion of privacy rights of the appellant and his partner as well as of their children, who have of course no conceivable involvement in the conduct in question.
+The invasion would, on present evidence, be clear, serious and injurious.
+On the other hand, those interested in a prurient story can, if they try, probably read about the identities of those involved and in some cases about the detail of the conduct, according to where they may find it on the internet.
+The Court will be criticised for giving undue protection to a tawdry story by continuing the injunction to trial.
+There is undoubtedly also some risk of further internet, social media or other activity aimed at making the Courts injunction seem vain, whether or not encouraged in any way by any persons prevented from publishing themselves.
+On the other hand, the legal position, which the Court is obliged to respect, is clear.
+There is on present evidence no public interest in any legal sense in the story, however much the respondents may hope that one may emerge on further investigation and/or in evidence at trial, and it would involve significant additional intrusion into the privacy of the appellant, his partner and their children.
+At the end of the day, the only consideration militating in favour of discharging the injunction is the incongruity of the parallel and in probability significantly uncontrollable world of the internet and social media, which may make further inroads into the protection intended by the injunction.
+Against that, however, the media storm which discharge of the injunction would unleash would add a different and in some respects more enduring dimension to the existing invasions of privacy being perpetrated on the internet.
+At the risk of appearing irredentist, the Supreme Court has come to the conclusion that, on a trial in the light of the present evidence, a permanent injunction would be likely to be granted in the interests of the appellant, his partner and especially their children.
+The appeal should therefore be allowed, and the Court will order the continuation of the interim injunction to trial or further order accordingly.
+LORD NEUBERGER: (with whom Lady Hale, Lord Mance and Lord Reed agree)
+The issue which we have to decide is whether to uphold or reverse the decision of the Court of Appeal to lift an interlocutory injunction which it had previously granted at the suit of PJS, who is married to YMA, and they have two young children.
+That interlocutory injunction restrained NGN until trial or further order from publishing a story about a sexual relationship between PJS and AB and another, a story which had been communicated to News Group Newspapers Ltd, NGN, by AB.
+I agree that we should reverse the decision and continue, or re impose, the interlocutory injunction, for the reasons given in the judgment of Lord Mance, and I also agree with Lady Hale.
+Because we are reversing the Court of Appeal and are not unanimous in doing so, I add a few words of my own.
+The history in summary
+After NGN had obtained the story from AB, they very properly informed PJS of their intention to publish it in the Sun on Sunday newspaper.
+PJSs case was and remains that this would be unlawful as it would violate his legal rights as it would be an unlawful misuse of his private information.
+Accordingly, he immediately issued proceedings against NGN seeking a permanent injunction to prevent such publication.
+Because a permanent injunction can only be granted after a trial, NGN would have been able to publish the story in the meantime.
+Accordingly, PJS also immediately applied for a temporary, or interlocutory, injunction to restrain NGN from publishing the story until the trial.
+NGN resisted both the proceedings and the grant of the interlocutory injunction on the ground that the public interest in freedom of expression and in the story being published outweighed any privacy rights enjoyed by PJS.
+Cranston J decided that NGN were right and refused PJS an interlocutory injunction (but granted one very temporarily to enable PJS to appeal).
+PJS appealed to the Court of Appeal which on 22 January 2016, granted an interlocutory injunction for reasons given by Jackson LJ.
+In summary, he considered that PJS had a legally recognised expectation of privacy, that there was no public interest in the story being published, that PJS therefore had a strong case that publication of the story would infringe his legal rights, that such publication would be devastating for PJS, that there would be increased press attention paid to his children, and that when this action comes to trial, [PJS] is likely to establish that publication should not be allowed [2016] EWCA Civ 100.
+Thereafter, the story was published in a newspaper in the United States, in Canada and in Scotland, and it has been available to the public in England and Wales to the extent described by Lord Mance in paras 6 8 above.
+As a result, NGN applied to the Court of Appeal to lift the interlocutory injunction on the ground that the dissemination of the story since January 2016 meant that the information was now out in the public domain to such an extent that a permanent injunction would not be granted at trial, so that the interlocutory injunction should therefore be discharged.
+On 18 April 2016, the Court of Appeal, for reasons given by Jackson LJ, accepted that argument and discharged the interlocutory injunction [2016] EWCA Civ 393.
+The Court of Appeal nonetheless stayed the discharge of the injunction for two days to enable PJS to apply to this Court.
+We decided to hear PJSs application for permission to appeal to this Court together with the arguments which the parties wished to raise on any appeal, and to continue the stay until we had determined the application and any appeal.
+Can this Court consider whether to continue the interlocutory injunction?
+On the face of it, a decision whether or not to discharge an interlocutory injunction is a matter for the court which determines that issue.
+However, an appellate court can interfere with such a decision if the determining court proceeds on an erroneous basis.
+In this case, there are three possible reasons why this Court is, as a matter of law, entitled to reconsider the issue raised on this appeal for ourselves.
+First, although he gave an impressive and careful judgment, Jackson LJ misdirected himself in an important respect when reaching the decision to discharge the interlocutory injunction which had been previously granted.
+Having rightly said that it was necessary to balance PJSs right to respect for his private and family life against NGNs right to freedom of his expression, he said that section 12 of the Human Rights Act enhances the weight to be given to the latter factor.
+However, that is not right.
+As Lord Steyn made clear in In re S (A Child) [2005] 1 AC 593, para 17, each right has equal potential force in principle, and the question is which way the balance falls in the light of the specific facts and considerations in a particular case.
+This was an error which entitles, indeed obliges, us to reconsider the question of discharging the interlocutory injunction.
+Secondly, there is an argument that it was wrong to proceed on the basis that the story had what Jackson LJ described as limited, as opposed to no, public interest.
+Of course, there is always a public interest in anyone particularly, some may think, the media having the right to say what they want.
+As Jackson LJ rightly said in his first judgment in this case at para 55, [freedom of expression is an important right for its own sake; and that is recognised by section 12(4) of the Human Rights Act 1998, which provides that [t]he court must have particular regard to the importance of the Convention right to freedom of expression.
+However, following section 12(4)(a)(ii) of the 1998 Act, it appears to me that it was the public interest (as opposed to the interests of some members of the public) in the story being published which Jackson LJ was describing.
+In his earlier judgment in which he decided to grant the injunction, Jackson LJ decided that there was no public interest in the story being published (see [2016] EWCA Civ 100, para 53), and, as that finding has unsurprisingly not been appealed, it must be accepted, at least until trial.
+Having said that, I very much doubt that this factor would have been enough to persuade me that we could reconsider the question of continuing the interlocutory injunction, but, in the light of what I say in para 51 above and para 53 below, that is an academic point.
+Thirdly, it appears to me that the Court of Appeal overlooked, or at any rate gave insufficient weight to, the intrusive and distressing effect on PJS and his family of newspaper coverage of the story, to some extent conflating that question with confidentiality.
+I will say more about that aspect in the next section of this judgment.
+The continuation of the interlocutory injunction
+It is therefore for this Court to decide whether or not to re impose the interlocutory injunction, it appears to me that the central issue in that connection is whether the trial judge would be likely to grant a permanent injunction when this case comes to trial.
+Section 12(3) of the 1998 Act precludes the grant of an interlocutory injunction unless a permanent injunction is likely to be granted at trial; on the other side of things, it is hard to see why, in this case at least, an interlocutory injunction should not be granted (and, a fortiori, continued) if a permanent injunction is likely to be granted.
+In this context, the proper approach to likelihood is as set out by Lord Nicholls in Cream Holdings Ltd v Banerjee [2005] 1 AC 253, para 22, which is set out by Lord Mance in para 19 above.
+In January 2016, the Court of Appeal thought it was likely that, at the end of the trial of this action, a judge would grant a permanent injunction restraining NGN from publishing the story.
+Accordingly, the question to be resolved is whether, despite the publicity which has already been given to the story, as described by Lord Mance in paras 6, 7 and 8 of his judgment, that is still the likely outcome at trial.
+On that centrally relevant issue, it must be remembered that this is an application to discharge an interlocutory judgment before the trial of the action concerned.
+NGNs case must therefore be that the interlocutory injunction should be revoked because of some significant change of circumstances since it was granted in January 2016 Thevarajah v Riordan [2016] 1 WLR 76 para 18 citing Buckley LJ in Chanel Ltd v F W Woolworth & Co Ltd [1985] 1 WLR 485, 492 493.
+Accordingly, with the exception of the effects of the subsequent publicity referred to in para 55 above, the conclusions reached in the first judgment of the Court of Appeal must be assumed to be correct; in particular, it must be assumed that there is no public interest in publication of the story, and that, were it not for the publicity which has occurred since January 2016, it is likely that a permanent injunction would be granted.
+If PJSs case was simply based on confidentiality (or secrecy), then, while I would not characterise his claim for a permanent injunction as hopeless, it would have substantial difficulties.
+The publication of the story in newspapers in the United States, Canada, and even in Scotland would not, I think, be sufficient of itself to undermine the claim for a permanent injunction on the ground of privacy.
+However, the consequential publication of the story on websites, in tweets and other forms of social network, coupled with consequential oral communications, has clearly resulted in many people in England and Wales knowing at least some details of the story, including the identity of PJS, and many others knowing how to get access to the story.
+There are claims that between 20% and 25% of the population know who PJS is, which, it is fair to say, suggests that at least 75% of the population do not know the identity of PJS, and presumably more than 75% do not know much if anything about the details of the story.
+However, there comes a point where it is simply unrealistic for a court to stop a story being published in a national newspaper on the ground of confidentiality, and, on the current state of the evidence, I would, I think, accept that, if one was solely concerned with confidentiality, that point had indeed been passed in this case.
+However, claims based on respect for privacy and family life do not depend on confidentiality (or secrecy) alone.
+As Tugendhat J said in Goodwin v News Group Newspapers Ltd [2011] EMLR 502, para 85, [t]he right to respect for private life embraces more than one concept.
+He went on to cite with approval a passage written by Dr Moreham in Law of Privacy and the Media (2nd ed (2011), edited by Warby, Moreham and Christie), in which she summarised the two core components of the rights to privacy as unwanted access to private information and unwanted access to [or intrusion into] ones personal space what Tugendhat J characterised as confidentiality and intrusion.
+Tugendhat J then went on to identify a number of cases where intrusion had been relied on by judges to justify the grant of an injunction despite a significant loss of confidentiality, namely Blair v Associated Newspapers Ltd (10 March 2000, Morland J), West v BBC (10 June 2002, Ouseley J), McKennitt v Ash [2006] EMLR 178, para 81 (Eady J), X & Y v Persons Unknown [2007] EMLR 290, para 64 (Eady J), JIH v News Group Newspapers Ltd [2011] EMLR 177, paras 58 59 (Tugendhat J), TSE v News Group Newspapers Ltd [2011] EWHC 1308 (QB), paras 29 30 (Tugendhat J) and CTB v News Group Newspapers Ltd [2011] EWHC 1326 (QB), para 23 (Eady J), to which can be added CTB v News Group Newspapers Ltd [2011] EWHC 1334 (QB), para 3 (Tugendhat J), Rocknroll v News Group Newspapers Ltd [2013] EWHC 24 (Ch), para 25 (Briggs J), and H v A (No 2) [2015] EWHC 2630 (Fam), paras 66 69 (MacDonald J).
+Perusal of those decisions establishes that there is a clear, principled and consistent approach at first instance when it comes to balancing the medias freedom of expression and an individuals rights in respect of confidentiality and intrusion.
+There has been not even a hint of disapproval of that approach by the Court of Appeal (although it considered appeals in McKennitt [2008] QB 73 and JIH [2011] 1 WLR 1645).
+Indeed, unsurprisingly, there has been no argument that we should take the opportunity to overrule or depart from them.
+Accordingly, it seems to me that it is appropriate for this Court to adhere to the approach in those cases.
+Not only do they demonstrate a clear and consistent approach, but they are decisions of judges who are highly respected, and, at least in the main, highly experienced in the field of media law and practice; and they were mostly decided at a time when access to the internet was easily available to the great majority of people in the United Kingdom.
+The significance of intrusion, as opposed to confidentiality, in these decisions was well explained in the judgment of Eady J in CTB [2011] EWHC 1326 (QB), where he refused an application by a newspaper to vary an interlocutory injunction because of what he referred to as widespread coverage on the Internet.
+At para 24 he said that [i]t is fairly obvious that wall to wall excoriation in national newspapers is likely to be significantly more intrusive and distressing for those concerned than the availability of information on the Internet or in foreign journals to those, however many, who take the trouble to look it up.
+As he went on to say in the next paragraph of his judgment, in a case such as this, [f]or so long as the court is in a position to prevent some of that intrusion and distress, depending upon the individual circumstances, it may be appropriate to maintain that degree of protection.
+The same approach was taken by Tugendhat J in a later judgment in the same case, CTB [2011] EWHC 1334 (QB), when refusing a further application to lift the interlocutory injunction after the applicants name had been mentioned in the House of Commons.
+At para 3, having accepted that it was obvious that if the purpose of this injunction were to preserve a secret, it would have failed in its purpose, he said that in so far as its purpose is to prevent intrusion or harassment, it has not failed.
+Indeed, he regarded the fact that tens of thousands of people have named the claimant on the internet as confirming, rather than undermining, the argument that the claimant and his family need protection from intrusion into their private and family life.
+It also seems to me that if there was no injunction in this case, there would be greater intrusion on the lives of PJS and YMA through the internet.
+There may well be room for different views as to whether the lifting of the injunction would lead to an increase or a decrease in tweets and other electronic communications relating to the story.
+However, if the identity of PJS and the story could be communicated within England and Wales, then it would be likely that anyone in this jurisdiction who was searching for PJS (or indeed YMA) through a search engine, for reasons wholly unconnected with the story, would find prominent links to that story.
+But if search engines serving England and Wales are geo blocked from mentioning PJS, or indeed YMA, in connection with the story, as they should be so long as an injunction is in place, this would not happen.
+It might be said that PJS and YMA could ask the search engine operators to remove any links to the story pursuant to the decision of the Court of Justice in Google Spain SL v Agencia Espaola de Proteccin de Datos (Case C 131/12) [2014] QB 1022, but it seems unlikely that the reasoning in that case could apply to a story which has only recently become public and is being currently covered in the newspapers.
+In the instant case, Jackson LJ said in his first judgment, when granting the interlocutory injunction, that [t]he proposed article would generate a media storm and much public interest in [PJSs] family.
+There would be increased press interest in [his] and YMAs family life.
+The children would become the subject of increased press attention, with all that that entails.
+There is no reason to think that that would be significantly different now, despite the internet coverage of the story and indeed it may be that the press interest and attention identified by Jackson LJ in that passage would be increased as a result of the internet coverage.
+In my view, the case for lifting the interlocutory injunction imposed in January 2016 has not been made out.
+The publication of the story and the identification of PJS in the electronic media since January 2016 has undoubtedly severely undermined (and probably, but not necessarily, demolished) PJSs claim for an injunction in so far as he relies on confidentiality.
+However, I am unconvinced, on the basis of the evidence and arguments we have heard, that it has substantially reduced the strength of his claim in so far as it rests on intrusion.
+Bearing in mind those factors and the lack of public interest in the story being published, as well as the factors mentioned by Lord Mance and Lady Hale, I consider that the interlocutory injunction should be continued until trial (or further order in the meantime).
+One argument for discharging the injunction which I have not so far mentioned is that it may be arguable that things have got to the stage where it would be less damaging to PJS for the story to be published in the Sun on Sunday and other newspapers and got out of the way in one go, with all the intrusion that that would entail, as opposed to the potential drip feeding of the story on the internet coupled with oblique references in the print media, often coupled with indignation at being unable to report the story.
+It is very hard indeed to assess the strength of that argument at least on the basis of the evidence which we were taken to.
+Further, it is a point which was scarcely, if at all, relied on by NGN, and it is a point on which the view and experience of PJS and his family should, I would have thought, carry some weight.
+Accordingly, I am not persuaded that it should carry the day for NGN at least at this stage.
+Concluding remarks
+I would therefore grant PJS permission to appeal to this Court, set aside the decision of the Court of Appeal given on 18 April 2016, and continue the injunction granted on 22 January 2016, until trial or further order in the meantime.
+In summary terms this is because it seems likely that PJS will establish at trial that (i) publication of the story in the Sun on Sunday would be an unlawful breach of his rights, and (ii) he should be entitled to an injunction to restrain it, because of the consequential intrusion into his and his familys private lives.
+It is one thing for what should be private information to be unlawfully disseminated; it is quite another for that information to be recorded in eye catching headlines and sensational terms in a national newspaper, or to be freely available on search engines in this jurisdiction to anyone searching for PJS or YMA, or indeed AB, by name in a different connection.
+If, as seems to me likely on the present state of the evidence and the current state of the law, PJS will succeed in obtaining such an injunction at trial, then it follows that he ought to be granted an injunction to restrain publication of the story in the meantime.
+I referred in para 66 above to the indignation of the newspapers.
+It is easy to understand, and indeed to sympathise with, the concern of NGN and other newspapers at being excluded from reporting in this jurisdiction a story which is available, at least in part, to people in this country via electronic media.
+I appreciate that it is scant consolation, but the fact is that this situation arises from the perception that a story in a newspaper has greater influence, credibility and reach, as well greater potential for intrusion, than the same story on the internet.
+I also accept that, as many commentators have said, that the internet and other electronic developments are likely to change our perceptions of privacy as well as other matters and may already be doing so.
+The courts must of course be ready to consider changing their approach when it is clear that that approach has become unrealistic in practical terms or out of touch with the standards of contemporary society.
+However, we should not change our approach before it is reasonably clear that things have relevantly changed in a significant and long term way.
+In that connection, while internet access became freely available in this country only relatively recently, almost all the cases listed at the end of para 59 above were decided since that happened, and many of those cases were decided after blogging and tweeting had become common.
+It is therefore quite understandable that Mr Millar QC, for NGN did not suggest that the law as laid down in those cases was wrong or outdated; and, currently at least, I am unpersuaded that they do not represent the law.
+In the light of the facts as they currently appear and the law as it has now been developed, it appears to me that the interlocutory injunction sought by PJS should be granted.
+The courts exist to protect legal rights, even when their protection is difficult or unpopular in some quarters.
+And if Parliament takes the view that the courts have not adapted the law to fit current realities, then, of course, it can change the law, for instance by amending section 12 of the 1998 Act.
+LADY HALE: (with whom Lord Neuberger, Lord Mance and Lord Reed agree)
+I agree that this appeal should be allowed and the interim injunction restored for the reasons given by Lord Mance.
+I wish only to add a few words about the interests of the two children whom PJS has with YMA.
+It is simply not good enough to dismiss the interests of any children who are likely to be affected by the publication of private information about their parents with the bland statement that these cannot be a trump card.
+Of course they cannot always rule the day.
+But they deserve closer attention than they have so far received in this case, for two main reasons.
+First, not only are the childrens interests likely to be affected by a breach of the privacy interests of their parents, but the children have independent privacy interests of their own.
+They also have a right to respect for their family life with their parents.
+Secondly, by section 12(4)(b), any court considering whether to grant either an interim or a permanent injunction has to have particular regard to any relevant privacy code.
+It is not disputed that the IPSO Code, which came into force in January, is a relevant Code for this purpose.
+This, as Lord Mance has explained, provides that editors must demonstrate an exceptional public interest to over ride the normally paramount interests of [children under 16].
+This means that, at trial, the court will have to consider carefully the nature and extent of the likely harm to the childrens interests which will result in the short, medium and longer terms from the publication of this information about one of their parents.
+At present, there is no evidence about this.
+It is possible that, at trial, the evidence will not support any risk of harm to the childrens interests from publication of the story in the English print and broadcasting media.
+It is possible that the evidence will indicate that the children can be protected from any such risk, by a combination of the efforts of their parents, teachers and others who look after them and some voluntary restraint on the part of the media.
+On the other hand, it is also possible that the evidence will support a risk of harm to the childrens interests from the invasion of their own and their parents privacy, a risk from which it will be extremely difficult to protect them.
+There is all the difference in the world between the sort of wall to wall publicity and intrusion which is likely to meet the lifting of this injunction and their learning this information in due course, which the Court of Appeal thought inevitable.
+For one thing, the least harmful way for these children to learn of these events is from their parents.
+Their parents have the resources to take wise professional advice about how to reveal and explain matters to their children in an age appropriate way and at the age appropriate time.
+No doubt their parents are already giving careful thought to whether this might be the best way of protecting their children, especially from the spike of interest which is bound to result from this judgment let alone from any future judgment.
+The particular features which are relevant to the balancing exercise in this case are contained in three short paragraphs in the unredacted version of this judgment.
+These unfortunately have to be redacted because it would be comparatively easy to surmise the identity of the children and their parents from them.
+There are particular reasons why care should be taken about how, when and why these children should learn the truth.
+[redacted] [redacted] [redacted]
+In the leading case of In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593, very careful consideration was given, at first instance, in the Court of Appeal and in the House of Lords, to balancing the public interest in publishing the name of a woman accused of murdering her child against the welfare interests of her surviving child who was living with his father.
+The public interest, in the legal sense, of publication was very strong.
+There was expert evidence of the welfare interests of the surviving child.
+It could not be more different from this case.
+As Lord Mance has demonstrated, there is no public interest in the legal sense in the publication of this information.
+There is no expert evidence of the interests of these children.
+These are all matters which should be properly argued at trial, not pre empted by premature disclosure.
+LORD TOULSON: (dissenting)
+I respectfully disagree with the judgment of the majority.
+Despite the arguments persuasively advanced by Mr Desmond Browne QC on behalf of PJS, I have concluded on reflection that the injunction originally granted by the Court of Appeal on 22 January 2016 should not be reinstated.
+That injunction provided that NGN (as I will refer to the respondent) should not publish any information which might lead to PJSs identification, or any of the information referred to in a confidential schedule to the order, until trial of the action or further order.
+To Lord Mances full summary of the facts I would add only that there have been numerous twitter hashtags of a fairly obvious kind leading to material identifying PJS in connection with the injunction.
+I agree with Lord Mance that it was incorrect for the Court of Appeal to say, as it did, that section 12 of the Human Rights Act (HRA) enhances the weight which article 10 rights carry in the balancing exercise with the article 8 rights of PJS.
+In its judgment dated 22 January 2016 the Court of Appeal set out correctly the interplay between articles 8 and 10 (at para 30 and following), and I doubt whether the court really intended to adopt a different approach in April, but that is not a sufficient basis to re interpret, or overlook as immaterial, what it said on the later occasion.
+In consequence, this court must review for itself the question whether the January injunction should be set aside because of a change of circumstances.
+Although it does not affect the need for this court to form its own judgment whether the January injunction should be set aside, I would not subscribe to Lord Mances other three criticisms of the Court of Appeal; that it wrongly referred to limited public interest; that it applied a quantitive test to the level of disclosure which there had been, thereby overlooking the invasiveness and distress which the proposed publication would entail; and that its decision involved a failure to ensure that PJSs privacy rights were practical and effective.
+As to public interest, the Court of Appeal referred to what it had said on that subject in its earlier judgment without repeating it.
+In its earlier judgment the court made it clear that it thought very little of the public interest argument, for reasons which it fully explained.
+The seven reasons which the court gave in the judgment under review, at para 47, for setting aside the injunction were in no way affected by the NGNs suggested public interest in the publication; they were all to do with the consequences of what had become public.
+As to applying a purely quantitive test, section 12(4) of the HRA required the court to have regard to the extent to which the information embargoed from publication by the injunction was available to the public; the court also considered expressly the impact on PJS and the children of further disclosure in the light of events which had happened.
+The final criticism, relating to a practical and effective remedy, requires fuller discussion.
+It is not disputed that this court must approach the question whether the injunction should remain in place on the basis that, on the present information, PJS is likely to succeed at the trial in his claim that publication of his identity, and the other information in the confidential schedule to the injunction, would be a breach of his article 8 rights.
+The Court of Appeal so found in its January judgment, and it adhered to that view in the judgment under review (para 41).
+Mr Gavin Millar QC did not try to persuade the court otherwise, although he made it clear that the Sun intends to maintain its public interest defence at the trial.
+For present purposes, the court must proceed on the basis that there is no public interest in the publication of the material, however interesting it might be to some members of the public.
+The fact that there is a public appetite, which the proposed publication would feed, for information about the sex lives of celebrities does not mean that its disclosure would be in the public interest.
+Celebrities are entitled to the same respect for their private lives as anyone else, unless disclosure would genuinely support the function of the press as a public watchdog.
+All this is well established.
+The provision in section 12(3) of the HRA that there should be no pre trial restraint on publication unless the court is satisfied that the applicant is likely to establish that publication should not be allowed requires more than that the applicant is likely to establish that publication would be in breach of his rights.
+It is generally necessary to persuade the court that he is likely to obtain a final injunction at the trial.
+The Court of Appeal rightly identified this as the crucial question (para 46).
+On that issue I have reached the same conclusion as the Court of Appeal for essentially the same reasons.
+Mr Browne concentrated his argument on the impact on PJS and his spouse becoming the subjects of a media storm, together with the consequences for their children.
+The Court of Appeal rightly recognised that the information which the NGN wants to publish is still private in the sense that it concerns intimate sexual matters, which attract the protection of article 8, although much of the confidentiality has been lost.
+In the world in which PJS lives, knowledge of the story must be commonplace and it is apparent from the evidence that the circle of those who know is much wider.
+The story in its essential details has been published in a major Scottish newspaper, it has been widely accessible on websites and twitter, and anyone who seriously wanted to know PJSs identity will have had ways of finding it.
+Confidentiality in a meaningful sense can survive a certain amount of leakage, and every case must be decided on its own facts, but in this case I have reached a clear view that the storys confidentiality has become so porous that the idea of it still remaining secret in a meaningful sense is illusory.
+Once it has become readily available to anyone who wants to know it, it has lost the essence of confidentiality.
+The court must live in the world as it is and not as it would like it to be.
+I would echo Jackson LJs words that [i]t is in my view inappropriate (some may use a stronger term) to ban people from saying that which is common knowledge.
+In my judgment that is good sense and good law.
+Mr Browne submitted that even if the story has become widely known, an injunction is still appropriate to protect PJS from the impact of its being reported in the media in a lurid fashion.
+The Court of Appeal weighed the media storm argument both in its January judgment and in its recent judgment.
+In the later judgment it saw less force in the point than in January.
+It said that the process of excoriation which PJS fears has already been occurring and will inevitably continue.
+It did not go as far as to accept the NGNs argument that PJSs article 8 rights had ceased to be engaged at all, because it recognised that the proposed publication would be a further intrusion, but the critical factor in the courts decision whether to continue the injunction, as I read its judgment, was what it saw as the unreality of trying to put a lid on the story.
+It is well recognised that repeated publication of private (and especially intimate) photos may properly be prevented by injunction, because the original publication does not necessarily reduce the intrusion caused by re publication.
+In Douglas v Hello! Ltd (No 3) [2006] QB 125, para 105, the Court of Appeal explained that insofar as a photograph does more than convey information, and intrudes on privacy by enabling the viewer to focus on intimate personal detail, there will be a fresh intrusion of privacy when each additional viewer sees the photograph, or even when one who has seen a previous publication of the photograph is confronted by a fresh publication of it.
+The court gave the example of a photograph taken with a telescopic lens of a film star lying naked by a swimming pool.
+In the present case what is sought to be restrained is the publication of facts of which there has already been widespread disclosure.
+Once facts are widely known, the legal landscape changes.
+In my view the court needs to be very cautious about granting an injunction preventing publication of what is widely known, if it is not to lose public respect for the law by giving the appearance of being out of touch with reality.
+Lord Mance says at para 33 that the requirement under section 12(4)(a)(i) of the HRA for the court to pay particular regard to the extent to which the material has, or is about to, become available to the public must be considered with reference to the form in relation to which injunctive relief is to be sought.
+As I read the words of the Act, they require the court to take into account how generally available the information has become from whatever source, be it broadcast journalism, print journalism, the internet or social media.
+The evident underlying purpose of the subsection is to discourage the granting of an injunction to prevent publication of information which is already widely known.
+If the information is in wide, general circulation from whatever source or combination of sources, I do not see that it should make a significant difference whether the medium of the intended publication is the internet, print journalism or broadcast journalism.
+The world of public information is interactive and indivisible.
+I do not underestimate the acute unpleasantness for PJS of the story being splashed, but I doubt very much in the long run whether it will be more enduring than the unpleasantness of what has been happening and will inevitably continue to happen.
+The story is not going to go away, injunction or no injunction.
+It is a fact of life that stories about celebrities sometimes acquire their own momentum.
+In relation to the children, the Court of Appeal took account of their position both in its January judgment and in its recent judgment.
+They are very young and there are various steps which their parents can take to shield them from the immediate publicity.
+As the Court of Appeal said, it is inevitable in the longer term that the children will learn about these matters and their parents have no doubt already considered how they propose to handle it.
+The case of Editions Plon v France, to which Lord Mance has referred, arose from the publication shortly after the death of President Mitterand of a book by his doctor entitled Le Grand Secret.
+The French court granted an application by the late presidents widow and children for an interlocutory injunction to stop its distribution.
+The doctor was subsequently prosecuted, fined and given a suspended prison sentence.
+Final judgment in the civil proceedings was given nine months after the presidents death.
+Substantial damages were awarded to his widow and children and the injunction was made permanent.
+The Strasbourg court held that the temporary injunction had been legitimate, because the publication had occurred so soon after the presidents death when his family were grieving.
+It did not consider that the permanent injunction satisfied the requirement of serving a pressing social need, particularly having regard to the other remedies which had been ordered and to the fact that the story was widely available on the internet.
+I recognise that the facts were very different from those of the present case, and that the content of the book raised matters of undoubted public interest, but the case nevertheless shows that the court took a significantly different approach to a permanent ban on the publication of information which was widely available on the internet from its approach to a temporary ban for a specific and limited purpose.
+Lord Mance has said that the effect of lifting the injunction will be largely to undermine the purpose of any trial, which will be rendered irrelevant.
+I would make two observations.
+First, while adequacy of damages as a remedy is a reason to refuse an injunction, you cannot turn the argument on its head and say that inadequacy of damages is a positive reason to grant an otherwise inappropriate injunction.
+Secondly, I do not agree that the trial will be rendered irrelevant.
+As to damages, I would not regard Eady Js decision in Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB), [2008] EMLR 20, that exemplary damages cannot be awarded in an appropriate case for breach of privacy, as the final word on the subject.
+Proportionality is essential, but I would not rule out the possibility of the courts considering such an award to be necessary and proportionate in order to deter flagrant breaches of privacy and provide adequate protection for the person concerned.
+I would dismiss the appeal.
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+On a Tuesday afternoon in July 2008 Mrs Elizabeth Robinson, described by the Recorder as a relatively frail lady then aged 76, was walking along Kirkgate, a shopping street in the centre of Huddersfield, when she was knocked over by a group of men who were struggling with one another.
+Two of the men were sturdily built police officers, and the third was a suspected drug dealer whom they were attempting to arrest.
+As they struggled, the men knocked into Mrs Robinson and they all fell to the ground, with Mrs Robinson underneath.
+She suffered injuries as a result.
+The principal question which has to be decided in this appeal is whether the officers owed a duty of care to Mrs Robinson.
+The other important question is whether, if they did, they were in breach of that duty.
+Mr Recorder Pimm held that the officers had been negligent, but that police officers engaged in the apprehension of criminals were immune from suit.
+The Court of Appeal held that no duty of care was owed, and that, even if the officers had owed Mrs Robinson such a duty, they had not acted in breach of it: [2014] EWCA Civ 15.
+As will appear, the simple facts of this case have given rise to proceedings raising issues of general importance.
+Most of those issues can be decided by applying long established principles of the law of negligence.
+The fact that the issues have reached this court reflects the extent to which those principles have been eroded in recent times by uncertainty and confusion.
+The facts
+The events leading to Mrs Robinsons accident began when DS Neil Willan spotted Mr Ashley Williams apparently dealing drugs in a park in the centre of Huddersfield.
+He did not attempt to arrest Williams immediately, as Williams was young and physically fit, and Willan thought that he was unlikely to be able to arrest him without his running away.
+He called for backup, and DC Ian Green and DS Damian Roebuck then made their way to join him.
+Williams went to a bookmakers on Kirkgate, and Willan followed him inside.
+He decided not to attempt an arrest inside the shop, as there were people there whom he recognised, and he was concerned that attempting an arrest would endanger both his own safety and that of the customers and staff.
+Williams then left the shop and stood outside it.
+Green and Roebuck then arrived, and another officer, PC Dhurmea, arrived soon afterwards.
+Like Willan, they were in plain clothes.
+Willan and Roebuck formed a plan to arrest Williams while he was standing outside the bookmakers.
+The plan involved Willan and Dhurmea approaching Williams from one direction, taking hold of him and effecting the arrest, while Roebuck and Green were positioned in the opposite direction, to prevent his escape and assist once Willan and Dhurmea had taken hold of him.
+Willan and Dhurmea positioned themselves up the street from the bookmakers, while Green and Roebuck took up a position some distance down the street.
+Kirkgate was moderately busy at the time with pedestrians and traffic.
+Mrs Robinson was one of a number of pedestrians walking along the pavement.
+She passed Willan and Dhurmea, and then Williams, very shortly after two other pedestrians.
+Almost immediately after she passed Williams, and when she was within a yard of him, Willan and Dhurmea approached him.
+Mrs Robinson was then in their line of sight.
+The officers took hold of Williams and attempted to arrest him.
+Williams resisted arrest.
+As the men tussled, they moved towards Mrs Robinson and collided with her.
+The initial contact was between her and Williams, who backed into her.
+She fell over, and the men fell on top of her.
+Roebuck and Green arrived three seconds later and assisted in arresting Williams.
+The proceedings before the Recorder
+Mrs Robinson issued proceedings for damages for personal injury, on the basis first of the negligence of the officers, and secondly assault and trespass to the person occasioned by DS Willan.
+The latter aspect of the claim is no longer in issue.
+Following a hearing on liability, the Recorder dismissed the claim.
+In relation to the facts, the Recorder relied on CCTV footage of the incident, together with the evidence of DS Willan, DS Roebuck and DC Green concerning the planning of the arrest.
+He accepted Willans evidence that the officers had identified the risk that Williams would try to run away, and regarded it as significant.
+Willan also said that he was aware of the potential for harm to members of the public if Williams tried to escape.
+His evidence was that in any situation it was necessary to consider the risk to those in the vicinity.
+He said that if it had appeared to him that someone was in harms way, he would have walked past Williams without effecting the arrest.
+The Recorder noted that that was in accordance with the risk assessment guidance provided to police officers in relation to arrests in drugs cases, to which he had been referred in the evidence.
+Willan said that he had not been aware of Mrs Robinsons presence when he attempted to arrest Williams.
+Willan also gave evidence that there was some urgency in effecting the arrest.
+He had seen Williams taking the drugs from a bag secured around his neck.
+It was important to arrest him while he still had drugs in his possession.
+Without the drugs, there was unlikely to be sufficient evidence for a successful prosecution.
+DS Roebuck said that it had taken him and DC Green about three seconds to get from the place where they had taken up position prior to the attempted arrest to the scene where the other three men were on top of Mrs Robinson.
+He said that suspects like Williams could have recognised them as police officers if they had been any closer.
+The Recorder did not accept that evidence, which was unsupported by any other evidence.
+As far as appeared from the evidence, Roebuck and Green would, he found, just have been two men walking along the street.
+In the light of the evidence, the Recorder found that the decision to arrest Williams at the time and place selected by the officers involved a foreseeable risk that Mrs Robinson would be injured.
+She was in very close proximity to Williams at that moment, she was an elderly lady, and there was a significant and foreseeable risk that he would try to escape.
+In the view of the Recorder, the officers had acted negligently.
+First, Willan accepted that he ought to have been taking care for the safety of members of the public in the vicinity.
+Although Mrs Robinson had just walked past Williams and was within a yard of him, Willan did not notice her.
+That was prima facie in breach of his duty of care.
+Secondly, in view of the known risk that Williams would try to escape, the officers could have waited and selected a safer opportunity to effect the arrest.
+Thirdly, there was a clear need for all four officers to be present if the arrest was to be carried out safely with pedestrians passing.
+Roebuck and Green had however been too far away to assist their colleagues until several seconds had passed.
+The risk could have been minimised if they had been closer at the time when the arrest was attempted.
+The Recorder held, however, that the decision in Hill v Chief Constable of West Yorkshire [1989] AC 53 had conferred on the police an immunity against claims in negligence.
+In the light of the decision of the Court of Appeal in Desmond v Chief Constable of Nottinghamshire Police [2011] EWCA Civ 3; [2011] PTSR 1369, that immunity was not confined to cases of omission.
+It therefore applied in the present case.
+The proceedings in the Court of Appeal
+In the Court of Appeal, Hallett LJ considered that the Caparo test [Caparo Industries plc v Dickman [1990] 2 AC 605, 617 618] applies to all claims in the modern law of negligence (para 40).
+In consequence, [t]he court will only impose a duty where it considers it right to do so on the facts (ibid).
+The general principle was that most claims against the police in negligence for their acts and omissions in the course of investigating and suppressing crime and apprehending offenders will fail the third stage of the Caparo test (para 46).
+That is to say, [i]t will not be fair, just and reasonable to impose a duty (ibid).
+That is because the courts have concluded that the interests of the public will not be best served by imposing a duty [on] to individuals (ibid).
+The answer to counsels rhetorical question, what would the public think if the police, in the process of arresting criminals, could injure innocent members of the public with impunity, was that provided the police act within reason, the public would prefer to see them doing their job and taking drug dealers off the street (para 47).
+One might observe that if the police are not under a duty of care, then it is irrelevant to the issue whether they act within reason or not.
+On the other hand, if they act with reasonable care, then they will not be in breach of a duty of care, even if an innocent member of the public is injured.
+Hallett LJ accepted that the authorities suggested that there might be a number of possible exceptions to the general principle: cases of outrageous negligence, cases which did not relate to core functions, and cases where police officers had assumed responsibility for a claimant.
+The present case did not fall into any of those categories.
+It was a paradigm example of why the courts are loath to impose a duty towards individual members of the public on the police engaged in their core functions (para 51).
+Hallett LJ added that, even if counsel for Mrs Robinson had been correct in her argument that there was no immunity from liability where police officers caused direct physical harm to members of the public, it was in any event clear that Williams was responsible for the harm.
+This was therefore a claim based on the officers failure to prevent Williams from harming Mrs Robinson: in the language used in other cases, it concerned an omission, rather than a positive act.
+Such a claim fell at the first hurdle: it was not fair, just or reasonable to impose liability on those facts.
+Furthermore, Hallett LJ considered that there was no proximity between Mrs Robinson and the police officers, notwithstanding that she had been injured when they fell on top of her.
+It was not enough to find that there was a reasonably foreseeable risk of her being physically injured in the course of carrying out the arrest.
+Hallett LJ also added that, had it been necessary, she would have felt obliged to overturn the Recorders finding of negligence.
+In that regard, she criticised him for acting as if he were an expert in the arrest and detention of suspects.
+In her own view, DS Willan could not afford to wait.
+He was bound to attempt the arrest or risk losing the suspect and the evidence.
+The delay of three seconds in the other two officers reaching the scene was hardly worthy of criticism.
+Arnold J delivered a concurring judgment, and Sullivan LJ agreed with Hallett LJ.
+The issues
+The issues arising from the judgments below and the parties submissions can be summarised as follows: (1) Does the existence of a duty of care always depend on the application of the Caparo test to the facts of the particular case? (2) Is there a general rule that the police are not under any duty of care when discharging their function of investigating and preventing crime? Or are the police generally under a duty of care to avoid causing reasonably foreseeable personal injuries, when such a duty would arise in accordance with ordinary principles of the law of negligence? If the latter is the position, does the law distinguish between acts and omissions: in particular, between causing injury, and protecting individuals from injury caused by the conduct of others? (3) positive act? (4) Did the police officers owe a duty of care to Mrs Robinson? (5) finding that the officers failed in that duty? (6) her injuries caused by that breach? If so, was the Court of Appeal entitled to overturn the Recorders If the latter is the position, is this an omissions case, or a case of a If there was a breach of a duty of care owed to Mrs Robinson, were
+(1) Caparo
+The proposition that there is a Caparo test which applies to all claims in the modern law of negligence, and that in consequence the court will only impose a duty of care where it considers it fair, just and reasonable to do so on the particular facts, is mistaken.
+As Lord Toulson pointed out in his landmark judgment in Michael v Chief Constable of South Wales Police (Refuge and others intervening) [2015] UKSC 2; [2015] AC 1732, para 106, that understanding of the case mistakes the whole point of Caparo, which was to repudiate the idea that there is a single test which can be applied in all cases in order to determine whether a duty of care exists, and instead to adopt an approach based, in the manner characteristic of the common law, on precedent, and on the development of the law incrementally and by analogy with established authorities.
+Caparo was decided in the aftermath of Lord Wilberforces attempt in Anns v Merton London Borough Council [1978] AC 728, 751 752 to lay down an approach which could be applied in all situations in order to determine the existence of a duty of care.
+That approach had two stages: first, it was necessary to decide whether there was a prima facie duty of care, based on the foreseeability of harm, and secondly, in order to place limits on the breadth of the first stage, it was necessary to consider whether there were reasons of public policy for excluding or restricting any such prima facie duty.
+That approach had major implications for public authorities, as they have a multitude of functions designed to protect members of the public from harm of one kind or another, with the consequence that the first stage enquiry was readily satisfied, and the only limit to liability became public policy.
+Anns led to a period during which the courts struggled to contain liability, particularly for economic loss unassociated with physical damage or personal injury, and for the acts and omissions of public authorities.
+Commenting extra judicially during that period, Lord Oliver of Aylmerton said that what has been seen as a principle of prima facie liability has been prayed in aid in subsequent cases to justify claims for damages which have become progressively more divorced from common sense and as placing on the defendant a burden, sometimes virtually insurmountable, of showing some good reason in policy why he should not be held liable: Judicial Legislation: Retreat from Anns, Third Sultan Azlan Shah Law Lecture (1988).
+It was in the context of the retreat from Anns that emphasis was placed in a number of cases on the concept of proximity, and on the idea that it must be fair to impose a duty of care on the defendant.
+In Caparo, Lord Bridge of Harwich noted that, since Anns, a series of decisions of the Privy Council and the House of Lords, notably in judgments and speeches delivered by Lord Keith of Kinkel (including his speech in Hill v Chief Constable of West Yorkshire), had emphasised the inability of any single general principle to provide a practical test which can be applied to every situation to determine whether a duty of care is owed and, if so, what is its scope (p 617).
+It is ironic that the immediately following passage in Lord Bridges speech has been treated as laying down such a test, despite, as Lord Toulson remarked in Michael, the pains which he took to make clear that it was not intended to be any such thing: What emerges [from the post Anns decisions] is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of proximity or neighbourhood and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.
+But it is implicit in the passages referred to that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope. (pp 617 618; emphasis added)
+Lord Bridge immediately went on to adopt an incremental approach, based on the use of established authorities to provide guidance as to how novel questions should be decided: I think the law has now moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes.
+We must now, I think, recognise the wisdom of the words of Brennan J in the High Court of Australia in Sutherland Shire Council v Heyman (1985) 60 ALR 1, 43 44, where he said: It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories . (p 618) It was that approach, and not a supposed tripartite test, which Lord Bridge then proceeded to apply to the facts before him.
+Applying the approach adopted in Caparo, there are many situations in which it has been clearly established that a duty of care is or is not owed: for example, by motorists to other road users, by manufacturers to consumers, by employers to their employees, and by doctors to their patients.
+As Lord Browne Wilkinson explained in Barrett v Enfield London Borough Council [2001] 2 AC 550, 560, Once the decision is taken that, say, company auditors though liable to shareholders for negligent auditing are not liable to those proposing to invest in the company . that decision will apply to all future cases of the same kind.
+Where the existence or non existence of a duty of care has been established, a consideration of justice and reasonableness forms part of the basis on which the law has arrived at the relevant principles.
+It is therefore unnecessary and inappropriate to reconsider whether the existence of the duty is fair, just and reasonable (subject to the possibility that this court may be invited to depart from an established line of authority).
+Nor, a fortiori, can justice and reasonableness constitute a basis for discarding established principles and deciding each case according to what the court may regard as its broader merits.
+Such an approach would be a recipe for inconsistency and uncertainty, as Hobhouse LJ recognised in Perrett v Collins [1999] PNLR 77, 90 91: It is a truism to say that any case must be decided taking into account the circumstances of the case, but where those circumstances comply with established categories of liability, a defendant should not be allowed to seek to escape from liability by appealing to some vaguer concept of justice or fairness; the law cannot be re made for every case.
+Indeed, the previous authorities have by necessary implication held that it is fair, just and reasonable that the plaintiff should recover in the situations falling within the principles they have applied.
+It is normally only in a novel type of case, where established principles do not provide an answer, that the courts need to go beyond those principles in order to decide whether a duty of care should be recognised.
+Following Caparo, the characteristic approach of the common law in such situations is to develop incrementally and by analogy with established authority.
+The drawing of an analogy depends on identifying the legally significant features of the situations with which the earlier authorities were concerned.
+The courts also have to exercise judgement when deciding whether a duty of care should be recognised in a novel type of case.
+It is the exercise of judgement in those circumstances that involves consideration of what is fair, just and reasonable.
+As Lord Millett observed in McFarlane v Tayside Health Board [2000] 2 AC 59, 108, the court is concerned to maintain the coherence of the law and the avoidance of inappropriate distinctions if injustice is to be avoided in other cases.
+But it is also engaged in a search for justice, and this demands that the dispute be resolved in a way which is fair and reasonable and accords with ordinary notions of what is fit and proper.
+In the present case, Hallett LJ cited the decision of this court in Smith v Ministry of Defence (JUSTICE intervening) [2013] UKSC 41; [2014] AC 52 as an example of a decision in which there was a focus on the three ingredients mentioned by Lord Bridge.
+That was however a case raising a novel legal issue, relating to the provision of protective equipment to soldiers on active duty, and the scope of combat immunity: it did not concern an established category of liability.
+Hallett LJ also relied on a passage in the speech of Lord Steyn in Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] AC 211, 235, in which he remarked that the elements of foreseeability and proximity as well as considerations of fairness, justice and reasonableness are relevant to all cases.
+That was a case concerned with the loss of a ship and its cargo as a result of negligent advice, in which the reasoning was essentially directed to considerations relevant to economic loss.
+As Hobhouse LJ observed in Perrett v Collins at p 92: Marc Rich should not be regarded as an authority which has a relevance to cases of personal injury or as adding any requirements that an injured plaintiff do more than bring his case within established principles.
+If a plaintiff is attempting to establish some novel principle of liability, then the situation would be different.
+It was in any event made clear in Michael that the idea that Caparo established a tripartite test is mistaken.
+Properly understood, Caparo thus achieves a balance between legal certainty and justice.
+In the ordinary run of cases, courts consider what has been decided previously and follow the precedents (unless it is necessary to consider whether the precedents should be departed from).
+In cases where the question whether a duty of care arises has not previously been decided, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions.
+They will also weigh up the reasons for and against imposing liability, in order to decide whether the existence of a duty of care would be just and reasonable.
+In the present case, however, the court is not required to consider an extension of the law of negligence.
+All that is required is the application to particular circumstances of established principles governing liability for personal injuries.
+Addressing, then, the first of the issues identified in para 20 above, the existence of a duty of care does not depend on the application of a Caparo test to the facts of the particular case.
+In the present case, it depends on the application of established principles of the law of negligence. (2) The police
+(i) Public authorities in general
+Before focusing on the position of the police in particular, it may be helpful to consider the position of public authorities in general, as this is an area of the law of negligence which went through a period of confusion following the case of Anns, as explained in paras 22 23 above.
+That confusion has not yet entirely dissipated, as courts continue to cite authorities from that period without always appreciating the extent to which their reasoning has been superseded by the return to orthodoxy achieved first in Stovin v Wise [1996] AC 923 and then, more fully and clearly, in Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15; [2004] 1 WLR 1057.
+At common law, public authorities are generally subject to the same liabilities in tort as private individuals and bodies: see, for example, Entick v Carrington (1765) 2 Wils KB 275 and Mersey Docks and Harbour Board v Gibbs (1866) LR 1 HL 93.
+Dicey famously stated that every official, from the Prime Minister down to a constable or collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen: Introduction to the Study of the Law of the Constitution 3rd ed (1889), p 181.
+An important exception at common law was the Crown, but that exception was addressed by the Crown Proceedings Act 1947, section 2.
+Accordingly, if conduct would be tortious if committed by a private person or body, it is generally equally tortious if committed by a public authority: see, for example, Dorset Yacht Co Ltd v Home Office [1970] AC 1004, as explained in Gorringe, para 39.
+That general principle is subject to the possibility that the common law or statute may provide otherwise, for example by authorising the conduct in question: Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430.
+It follows that public authorities are generally under a duty of care to avoid causing actionable harm in situations where a duty of care would arise under ordinary principles of the law of negligence, unless the law provides otherwise.
+On the other hand, public authorities, like private individuals and bodies, are generally under no duty of care to prevent the occurrence of harm: as Lord Toulson stated in Michael, the common law does not generally impose liability for pure omissions (para 97).
+This omissions principle has been helpfully summarised by Tofaris and Steel, Negligence Liability for Omissions and the Police (2016) 75 CLJ 128: In the tort of negligence, a person A is not under a duty to take care to prevent harm occurring to person B through a source of danger not created by A unless (i) A has assumed a responsibility to protect B from that danger, (ii) A has done something which prevents another from protecting B from that danger, (iii) A has a special level of control over that source of danger, or (iv) As status creates an obligation to protect B from that danger.
+As that summary makes clear, there are certain circumstances in which public authorities, like private individuals and bodies, can come under a duty of care to prevent the occurrence of harm: see, for example, Barrett v Enfield London Borough Council and Phelps v Hillingdon London Borough Council [2001] 2 AC 619, as explained in Gorringe at paras 39 40.
+In the absence of such circumstances, however, public authorities generally owe no duty of care towards individuals to confer a benefit upon them by protecting them from harm, any more than would a private individual or body: see, for example, Smith v Littlewoods Organisation Ltd [1987] AC 241, concerning a private body, applied in Mitchell v Glasgow City Council [2009] UKHL 11; [2009] AC 874, concerning a public authority.
+That is so, notwithstanding that a public authority may have statutory powers or duties enabling or requiring it to prevent the harm in question.
+A well known illustration of that principle is the decision of the House of Lords in East Suffolk Rivers Catchment Board v Kent [1941] AC 74.
+The position is different if, on its true construction, the statutory power or duty is intended to give rise to a duty to individual members of the public which is enforceable by means of a private right of action.
+If, however, the statute does not create a private right of action, then it would be, to say the least, unusual if the mere existence of the statutory duty [or, a fortiori, a statutory power] could generate a common law duty of care: Gorringe, para 23.
+A further point, closely related to the last, is that public authorities, like private individuals and bodies, generally owe no duty of care towards individuals to prevent them from being harmed by the conduct of a third party: see, for example, Smith v Littlewoods Organisation Ltd and Mitchell v Glasgow City Council.
+In Michael, Lord Toulson explained the point in this way: It is one thing to require a person who embarks on action which may harm others to exercise care.
+It is another matter to hold a person liable in damages for failing to prevent harm caused by someone else. (para 97) There are however circumstances where such a duty may be owed, as Tofaris and Steele indicated in the passage quoted above.
+They include circumstances where the public authority has created a danger of harm which would not otherwise have existed, or has assumed a responsibility for an individuals safety on which the individual has relied.
+The first type of situation is illustrated by Dorset Yacht, and in relation to the police by the case of Attorney General of the British Virgin Islands v Hartwell [2004] 1 WLR 1273, discussed below.
+The second type of situation is illustrated, in relation to the police, by the case of An Informer v A Chief Constable [2013] QB 579, as explained in Michael at para 69.
+In Anns, however, it was decided that a local authority owed a duty of care at common law, when exercising its power to inspect building works, to protect the ultimate occupier of the building from loss resulting from defects in its construction.
+The House of Lords thus held a public authority liable at common law for a careless failure to confer a benefit, by preventing harm caused by another persons conduct, in the absence of any special circumstances such as an assumption of responsibility towards the claimant.
+It added to the confusion by importing public law concepts, and the American distinction between policy and operational decisions, into questions concerning duties arising under the law of obligations.
+Although the decision was overruled in Murphy v Brentwood District Council [1991] 1 AC 398 on a limited basis (relating to the categorisation of the type of harm involved), its reasoning in relation to these matters was not finally disapproved until Stovin v Wise.
+The position was clarified in Gorringe v Calderdale Metropolitan Borough Council, which made it clear that the principle which had been applied in Stovin v Wise in relation to a statutory duty was also applicable to statutory powers.
+Lord Hoffmann (with whom Lord Scott of Foscote, Lord Rodger of Earlsferry and Lord Brown of Eaton under Heywood agreed) said that he found it difficult to imagine a case in which a common law duty could be founded simply on the failure, however irrational, to provide some benefit which a public authority had power (or a public law duty) to provide (para 32).
+He was careful to distinguish that situation from cases where a public authority did acts or entered into relationships or undertook responsibilities giving rise to a duty of care on an orthodox common law foundation (para 38).
+However, until the reasoning in Anns was repudiated, it was not possible to justify a rejection of liability, where a prima facie duty of care arose at the first stage of the analysis from the foreseeability of harm, on the basis that public bodies are not generally liable for failing to exercise their statutory powers or duties so as to confer the benefit of protection from harm.
+Instead, it was necessary to have recourse to public policy in order to justify the rejection of liability at the second stage.
+That was accordingly the approach adopted by the House of Lords and the Court of Appeal in a series of judgments, including Hill.
+The need to have recourse to public policy for that purpose has been superseded by the return to orthodoxy in Gorringe.
+Since that case, a public authoritys non liability for the consequences of an omission can generally be justified on the basis that the omissions principle is a general principle of the law of negligence, and the law of negligence generally applies to public authorities in the same way that it applies to private individuals and bodies.
+Equally, concerns about public policy cannot in themselves override a liability which would arise at common law for a positive act carried out in the course of performing a statutory function: the true question is whether, properly construed, the statute excludes the liability which would otherwise arise: see Gorringe at para 38 per Lord Hoffmann.
+That is not to deny that what might be described as policy considerations sometimes have a role to play in the law of negligence.
+As explained earlier, where established principles do not provide a clear answer to the question whether a duty of care should be recognised in a novel situation, the court will have to consider whether its recognition would be just and reasonable.
+(ii) The police in particular
+Turning to consider specifically the position of the police (helpfully discussed in Purshouse, Arrested development: Police negligence and the Caparo test for duty of care (2016) Torts Law Journal 1), Lord Toulson explained in the case of Michael at paras 29 35 that the police owe a duty to the public at large for the prevention of violence and disorder.
+That public law duty has a number of legal consequences.
+For example, the police cannot lawfully charge members of the public for performing their duty (Glasbrook Bros Ltd v Glamorgan County Council [1925] AC 270), and a police officer who wilfully fails to perform his duty may be guilty of a criminal offence (R v Dytham [1979] QB 722).
+Some members of the public may have standing to enforce the duty, for example in proceedings for judicial review (R v Commissioner of Police of the Metropolis, Ex p Blackburn [1968] 2 QB 118), but in doing so they are not enforcing a duty owed to them as individuals.
+In relation to the question whether, and in what circumstances, a private law duty of care might be owed by the police to particular individuals, Lord Toulson discussed in Michael the case of Hill, and in particular the speech of Lord Keith, with whom Lord Brandon of Oakbrook, Lord Oliver and Lord Goff of Chieveley agreed.
+Since it is apparent from the judgments below in the present proceedings, and from the submissions to this court, that Lord Keiths reasoning continues to be misunderstood, it is necessary to consider it once more.
+For the purposes of the present case, the most important aspect of Lord Keiths speech in Hill is that, in the words of Lord Toulson (Michael, para 37), he recognised that the general law of tort applies as much to the police as to anyone else.
+What Lord Keith said was this: There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts or omissions.
+So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence. (p 59; emphasis supplied) The words like anyone else are important.
+They indicate that the police are subject to liability for causing personal injury in accordance with the general law of tort.
+That is as one would expect, given the general position of public authorities as explained in paras 32 33 above.
+Lord Keiths dictum is vouched by numerous authorities.
+Those which he cited were Knightley v Johns [1982] 1 WLR 349, where a police officer who attended the scene of a road accident carelessly created an unnecessary danger to the claimant, and Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242, where police officers attending a siege at a gunsmith's shop, where a psychopathic intruder had armed himself and was firing from the building, carelessly caused damage to the premises in the course of an attempt to end the siege, by firing a CS gas canister into the building in the absence of fire fighting equipment.
+That decision, cited with approval in Hill and in later authorities, is inconsistent with any supposed rule that the police owe no duty of care in respect of action taken in the course of suppressing crime.
+Lord Keith also referred to the decision in Dorset Yacht, where prison officers who brought young offenders on to an island and then left them unsupervised, when it was reasonably foreseeable that they would attempt to escape, and in doing so cause damage to property, were held to be in breach of a duty of care.
+Other examples concerning the police include Attorney General of the British Virgin Islands v Hartwell, where police authorities were held to have been negligent in entrusting a firearm to an officer who was still on probation and had shown signs of mental instability, and cases such as Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455, in which police forces, although not technically employers, have been treated as owing the same common law duty as employers to take reasonable care for the safety of their officers.
+There are also numerous cases concerned with road accidents involving police cars, such as Marshall v Osmond [1983] QB 1034, where Sir John Donaldson MR observed that the duty owed by a police driver to a suspected criminal whom he was pursuing was the same duty as that owed to anyone else, namely to exercise such care and skill as is reasonable in the circumstances.
+One might also mention Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, where the House of Lords accepted, applying principles developed in cases concerning private individuals and bodies, that a duty of care was owed by the police, when they were responsible for crowd control at a football match, to persons who suffered psychiatric injuries as a result of deaths and injuries sustained by members of the crowd, subject to those persons being sufficiently proximate in time and space to the incident, and to their having a sufficiently close relationship to the dead and injured.
+These cases are not anomalous exceptions to the general absence of a duty of care, and cannot all be explained as falling within particular categories of the kind listed by Hallett LJ in the present case: cases of outrageous negligence, cases which did not relate to core functions, and cases where police officers had assumed responsibility for a claimant.
+The cases of Rigby v Chief Constable of Northamptonshire and Marshall v Osmond, for example, are plainly inconsistent with any supposed rule that the police owe no duty of care when engaged in their core operational activities, or that outrageous negligence or an assumption of responsibility must be established.
+On the contrary, these cases are examples of the application to the police of the ordinary common law duty of care to avoid causing reasonably foreseeable injury to persons and reasonably foreseeable damage to property.
+There are also examples concerned with other torts, such as Ashley v Chief Constable of Sussex Police (Sherwood intervening) [2008] AC 962, where relatives of a suspected drug dealer who had been shot dead by a police officer during a raid were held to have a cause of action for damages for battery (liability for negligence having been conceded), Minio Paluello v Commissioner of Police of the Metropolis [2011] EWHC 3411 (QB), where a protestor who suffered serious injuries when being pulled up from the ground by a police officer with excessive force was found entitled to damages for assault, and McDonnell v Commissioner of Police of the Metropolis [2015] EWCA Civ 573, where a claim for damages by a suspected drug dealer for assault arising from the use of excessive force during his arrest failed only on its facts.
+On the other hand, as Lord Toulson noted in Michael (para 37), Lord Keith held that the general duty of the police to enforce the law did not carry with it a private law duty towards individual members of the public.
+In particular, police officers investigating a series of murders did not owe a duty to the murderers potential future victims to take reasonable care to apprehend him.
+That was again in accordance with the general law of negligence.
+As explained earlier, the common law does not normally impose liability for omissions, or more particularly for a failure to prevent harm caused by the conduct of third parties.
+Public authorities are not, therefore, generally under a duty of care to provide a benefit to individuals through the performance of their public duties, in the absence of special circumstances such as an assumption of responsibility.
+This was recognised by Lord Toulson in Michael.
+As he explained: The refusal of the courts to impose a private law duty on the police to exercise reasonable care to safeguard victims or potential victims of crime, except in cases where there has been a representation and reliance, does not involve giving special treatment to the police .
+The question is therefore not whether the police should have special immunity, but whether an exception should be made to the ordinary application of common law principles. (paras 115 116)
+As previously explained, however, the reasoning by which Lord Keith arrived at the same conclusion as Lord Toulson reflects the period during which the case was decided, when Anns continued to be influential.
+Following the two stage approach to liability set out in Anns, Lord Keith considered first the argument that a duty of care arose in consequence of the foreseeability of harm to potential victims if the murderer was not apprehended.
+In that regard, Lord Keith emphasised that the foreseeability of harm was not in itself a sufficient basis for the imposition of a duty of care, and introduced the concept of proximity as a further ingredient.
+He concluded that there was no ingredient or characteristic giving rise to the necessary proximity between the police and the claimants daughter (who was one of the murderers victims), and that the circumstances of the case were not capable of establishing a duty of care owed towards her by the police.
+As Lord Toulson remarked in Michael (para 42), if Lord Keith had stopped at that point, it is unlikely that the decision would have caused controversy.
+However, having observed that what he had said was sufficient for the disposal of the appeal, Lord Keith went on to discuss the application of the second stage of the approach laid down in Anns: namely, whether there were reasons of public policy why an action should not lie in circumstances such as those of the present case (p 63).
+He concluded that there were such reasons, and expressed the view that the Court of Appeal had been right to take the view that the police were immune from an action of this kind (pp 63 64).
+It is important to note that this part of Lord Keiths speech was unrelated to a determination of whether the police were liable for negligence resulting in personal injury, where anyone else would be subject to liability under ordinary principles of the law of tort.
+He had already confirmed the existence of liability in those circumstances, as explained at paras 45 46 above.
+His comments about public policy were concerned with a different question, namely whether the police generally owe a duty of care to individual members of the public, in the performance of their investigative function, to protect them from harm caused by criminals: a question to which, on the principles established prior to Anns and subsequently reinstated in Stovin v Wise, Gorringe and Michael, as explained in paras 34 37 and 39 above, the answer was plainly no.
+In relation to that issue, the decision in Hill has now to be understood in the light of the later authorities.
+In Michael, in particular, Lord Toulson (with whom Lord Neuberger, Lord Mance, Lord Hodge and I agreed) reached the same conclusion as in Hill, but did so primarily by applying the reasoning in Stovin v Wise and Gorringe.
+Policy arguments were considered when addressing the argument that the court should create a new duty of care as an exception to the ordinary application of common law principles (see, in particular, paras 116 118).
+Lord Toulson concluded that, in the absence of special circumstances, there is no liability in cases of pure omission by the police to perform their duty for the prevention of violence (para 130).
+The case of Hill is not, therefore, authority for the proposition that the police enjoy a general immunity from suit in respect of anything done by them in the course of investigating or preventing crime.
+On the contrary, the liability of the police for negligence or other tortious conduct resulting in personal injury, where liability would arise under ordinary principles of the law of tort, was expressly confirmed.
+Lord Keith spoke of an immunity, meaning the absence of a duty of care, only in relation to the protection of the public from harm through the performance by the police of their function of investigating crime.
+Arguing against that conclusion, counsel for the respondents relied particularly on five authorities as supporting the existence of a general immunity.
+The first was the decision of the House of Lords in Calveley v Chief Constable of the Merseyside Police [1989] AC 1228, in which police officers who had been suspended pending the completion of disciplinary proceedings sought damages in respect of an alleged failure to conduct the proceedings expeditiously.
+They claimed to have suffered damage to their reputation, depression, and a loss of earnings.
+They alleged that they were owed a duty by the investigating officers to exercise proper care and expedition in the conduct of the investigation.
+It was argued that a police officer investigating a suspected crime owes a duty of care to the suspect and that the same principle applied to the investigation of a disciplinary offence.
+The House of Lords rejected the argument.
+Lord Bridge pointed out that the claims in negligence foundered on the rocks of elementary principle (p 1238).
+The losses claimed, so far as non financial, were not reasonably foreseeable, and the financial claims ran up against the formidable obstacles in the way of liability in negligence for purely economic loss.
+Lord Bridge added that all other considerations apart, it would be contrary to public policy to prejudice the fearless and efficient discharge by police officers of their vitally important public duty of investigating crime by requiring them to act under the shadow of a potential action for damages for negligence by the suspect.
+Reliance was placed on the latter dictum, but it is of no assistance to the respondent in the present case.
+Lord Bridges remark has to be understood in its context.
+The case sought to establish a novel type of liability relating to the manner in which an investigation was conducted.
+Lord Bridges reference to policy considerations was directed to that claim: he was not addressing the question whether the police may owe a duty of care to avoid causing reasonably foreseeable physical injury in the course of their operations.
+The second authority relied on was the judgment of Steyn LJ in Elguzouli Daf v Commissioner of Police of the Metropolis [1995] QB 335.
+The issue in the appeal was whether the Crown Prosecution Service owed a duty of care to a person it was prosecuting to act with reasonable diligence in obtaining and acting on scientific evidence which showed him to be innocent.
+The Court of Appeal held that no such duty was owed.
+Steyn LJ observed that the question raised was a novel one, which in the light of Caparo had to be considered by analogy with established categories of liability.
+In that regard, the case of Hill was considered instructive.
+Steyn LJ noted that the issue in that case was whether a claim against the police for a negligent failure to apprehend a violent criminal was sustainable.
+He summarised the effect of the second part of Lord Keiths speech as being that the House of Lords further held, as a second and separate ground of decision, that as a matter of public policy the police were immune from actions of negligence in respect of their activities in the investigation and suppression of crime (p 347).
+Steyn LJ added that it did not follow that the police might not be liable where there was some form of assumption of responsibility.
+The decision in Elguzouli Daf has been cited with approval on many occasions, and its correctness was recently confirmed by this court in SXH v Crown Prosecution Service (United Nations High Commissioner for Refugees intervening) [2017] UKSC 30; [2017] 1 WLR 1401.
+But Steyn LJs summary of the effect of the second part of Lord Keiths speech in Hill might convey a misleading impression if taken out of context.
+Steyn LJ can hardly have meant that the police enjoyed a blanket immunity in respect of anything done in the course of their activities in the investigation and suppression of crime, given his reliance on Lord Keiths speech in Hill.
+As already explained, Lord Keith confirmed the liability of the police for personal injuries in accordance with the ordinary law of tort, and cited the decision in Rigby v Chief Constable of Northamptonshire with approval.
+Thirdly, reliance was placed on the speech of Lord Steyn in Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24; [2005] 1 WLR 1495.
+In that case, the claimant sought damages in respect of a psychiatric illness which he claimed to have suffered in consequence of his insensitive treatment by officers investigating an incident in which he had been assaulted and a friend of his had been murdered.
+The issue before the House of Lords was whether it was arguable that the police owed him a duty of care (a) to take reasonable steps to assess whether he was a victim of crime and, if so, to accord him reasonably appropriate protection and support, (b) to take reasonable steps to afford him the protection, assistance and support commonly afforded to a key eye witness to a serious crime of violence, and (c) to afford reasonable weight to the account given by him and to act on the account accordingly.
+The House held that it was not.
+The correctness of that conclusion is not in question.
+On ordinary principles, behaviour which is merely insensitive is not normally actionable, even if it results in a psychiatric illness.
+Lord Steyn recognised that this was a novel type of claim, to which Lord Bridges observations in Caparo applied.
+As in Elguzouli Daf, he based his approach to the question whether it would be right to recognise a duty of care of the kind alleged on Lord Keiths speech in Hill.
+He cited first Lord Keiths confirmation of the liability of the police for the negligent infliction of personal injuries in accordance with the general law of tort.
+He went on to cite the part of Lord Keiths speech concerning whether the police owed a duty of care to future victims in the performance of their investigative function.
+In the passage on which reliance was placed, he stated (para 30): A retreat from the principle in Hills case would have detrimental effects for law enforcement.
+Whilst focusing on investigating crime, and the arrest of suspects, police officers would in practice be required to ensure that in every contact with a potential witness or a potential victim time and resources were deployed to avoid the risk of causing harm or offence.
+Such legal duties would tend to inhibit a robust approach in assessing a person as a possible suspect, witness or victim.
+By placing general duties of care on the police to victims and witnesses the polices ability to perform their public functions in the interests of the community, fearlessly and with despatch, would be impeded.
+It would, as was recognised in Hills case, be bound to lead to an unduly defensive approach in combating crime.
+As Lord Toulson noted in Michael, by endorsing the principle in the Hill case in the terms that he did, Lord Steyn confirmed that the functions of the police which he identified were public law duties and did not give rise to private law duties of care in the absence of special circumstances, such as an assumption of responsibility.
+Nothing in his reasoning is inconsistent with the existence of a duty of care to avoid causing physical harm in accordance with ordinary principles of the law of negligence.
+Lord Steyn plainly had no intention of undermining the confirmation in Hill that the police were under such a duty of care.
+The passage cited was directed towards a different issue.
+Fourthly, reliance was placed on Smith v Chief Constable of Sussex Police [2008] UKHL 50; [2009] AC 225, one of two appeals which the House of Lords heard together, the other being Van Colle v Chief Constable of the Herefordshire Police (Secretary of State for the Home Department intervening).
+The case of Smith concerned the question whether, where a person had informed the police that he had received threats of violence, the police then owed him a duty of care to prevent the threats from being carried out.
+Applying the established principles discussed earlier, the answer was no, in the absence of special circumstances such as an assumption of responsibility, and the House of Lords so held.
+The House was not however referred to the line of authority including East Suffolk Rivers Catchment Board v Kent, Stovin v Wise and Gorringe, which would have provided a basis for deciding the case; nor did it rely on the equivalent body of authority concerned with omissions by private individuals and bodies, such as Smith v Littlewoods Organisation Ltd. Those were the bases on which a very similar issue was subsequently decided in Michael.
+In Smith v Chief Constable of Sussex Police, the majority of the House were in agreement that, absent special circumstances such as an assumption of responsibility, the police owed no duty of care to individuals affected by the discharge of their public duty to investigate offences and prevent their commission.
+Lord Hope, with whose reasoning the other members of the majority agreed, followed the approach adopted in Brooks in the passage cited in para 61 above, and emphasised the risk that the imposition of a duty of care of the kind contended for would inhibit a robust approach in assessing a person as a possible suspect or victim.
+He acknowledged that [t]here are, of course, cases in which actions of the police give rise to civil claims in negligence in accordance with ordinary delictual principles, and cited Rigby as an example (para 79).
+Lord Phillips of Worth Matravers CJ summarised the core principle to be derived from Hill and Brooks as being that in the absence of special circumstances, the police owe no common law duty of care to protect individuals against harm caused by criminals.
+Lord Brown approached the matter in a similar way, concluding that, in the absence of an assumption of responsibility towards the eventual victim, the police generally owe no duty of care to prevent injuries deliberately inflicted by third parties, when they are engaged in discharging their general duty of combating and investigating crime.
+None of the speeches is inconsistent with the existence of a duty of care to avoid causing physical harm in accordance with ordinary principles of the law of negligence.
+Fifthly, reliance was placed on the judgment of the Court of Appeal, delivered by Sir Anthony May P, in Desmond v Chief Constable of Nottinghamshire Police.
+The issue in the case was whether the chief constable owed a duty of care when providing information to the criminal records bureau about the claimant, so as to enable the bureau to respond to a request for an enhanced criminal record certificate, made in connection with a job application.
+The chief constable was under a statutory duty to provide such information as was in his opinion relevant and ought to be included in the certificate.
+It was argued that the chief constable had made an error of judgement in deciding that certain information was relevant and ought to be included, with the result that the job application had been unsuccessful.
+The claim was for damages in respect of financial loss, stress and anxiety.
+The court correctly identified the relevant legal principles as being those laid down in East Suffolk River Catchment Board v Kent, Stovin v Wise and Gorringe, and concluded that no duty of care was owed.
+Reliance was however placed by counsel on an earlier part of the judgment, in which the court considered the cases on which the judge below had based his approach Hill, Elguzouli Daf, Brooks, and Smith v Chief Constable of Sussex Police and explained why, in its view, they did not provide an answer to the case at hand.
+The court summarised the principle to be derived from those decisions as being that in the absence of special circumstances, the police and the Crown Prosecution Service do not generally in the interests of the whole community owe individual members of the public, be they victims, witnesses or those who are prosecuted, a common law duty of care in undertaking and performing their operational duties of investigating, detecting, suppressing and prosecuting crime (para 31).
+The court went on to state that that principle might not apply in exceptional circumstances at the margins; to an ordinary case where, for instance, in a road accident the police cause personal injury or physical damage by negligent driving; nor to cases where on particular facts a police officer is taken to have assumed responsibility to an individual claimant (para 32).
+That summary of the law appears to treat the police as being generally under no duty of care when undertaking and performing their operational duties, other than in special circumstances.
+It does not reflect the acceptance of the House of Lords in Hill, reflected also in later cases such as Frost, Alcock and Smith v Chief Constable of Sussex Police, that the police are generally under a duty of care to avoid causing personal injury where such a duty would arise according to ordinary principles of the law of negligence.
+Nor can a case such as Rigby be distinguished as an exceptional case at the margins: it was treated both in Hill and in Smith v Chief Constable of Sussex Police not as an anomaly, but as an instance of a wider principle.
+In short, while it is not suggested in the present case that the decision in Desmond was wrong, the particular passage relied on is not an accurate summary of the law.
+On examination, therefore, there is nothing in the ratio of any of the authorities relied on by the respondent which is inconsistent with the police being under a liability for negligence resulting in personal injuries where such liability would arise under ordinary principles of the law of tort.
+That is so notwithstanding the existence of some dicta which might be read as suggesting the contrary.
+points made by Lord Hughes in his judgment: In relation to this discussion, it is necessary to respond briefly to some of the 1.
+I do not suggest that the discussion of policy considerations in cases such as Hill, Brooks and Smith should be consigned to history.
+But it is important to understand that such discussions are not a routine aspect of deciding cases in the law of negligence, and are unnecessary when existing principles provide a clear basis for the decision, as in the present appeal.
+I would not agree with Lord Hughess statement that they are the ultimate reason why there is no duty of care towards victims, suspects or witnesses imposed on police officers engaged in the investigation and prevention of crime.
+The absence of a duty towards victims of crime, for example, does not depend merely on a policy devised by a recent generation of judges in relation to policing: it is based on the application of a general and long established principle that the common law imposes no liability to protect persons against harm caused by third parties, in the absence of a recognised exception such as a voluntary assumption of responsibility. 2.
+The courts are not policy making bodies in the sense in which that can be said of the Law Commission or government departments.
+But the exercise of judgement about the potential consequences of a decision has a part to play when the court is asked to decide whether a novel duty of care exists, together with a consideration of existing principles and of the need for the law to develop coherently and incrementally: see para 24 above. 3.
+Hill, Brooks and Smith were all cases in which novel types of claim were made.
+Hill was also decided at a time when, following Anns, policy arguments were particularly prominent in judicial reasoning, and when the principle in East Suffolk Rivers Catchment Board, which could otherwise have provided a solution, had been rejected.
+Brooks and Smith were cases in which existing principles pointed strongly towards the rejection of a duty of care, but since those principles were challenged or argued to be subject to exceptions which would accommodate the instant case, it is entirely understandable that the House of Lords referred to policy considerations as supporting their conclusion. 4.
+The distinction between careless acts causing personal injury, for which the law generally imposes liability, and careless omissions to prevent acts (by other agencies) causing personal injury, for which the common law generally imposes no liability, is not a mere alternative to policy based reasoning, but is inherent in the nature of the tort of negligence.
+For the same reason, although the distinction, like any other distinction, can be difficult to draw in borderline cases, it is of fundamental importance.
+The central point is that the law of negligence generally imposes duties not to cause harm to other people or their property: it does not generally impose duties to provide them with benefits (including the prevention of harm caused by other agencies).
+Duties to provide benefits are, in general, voluntarily undertaken rather than being imposed by the common law, and are typically within the domain of contract, promises and trusts rather than tort.
+It follows from that basic characteristic of the law of negligence that liability is generally imposed for causing harm rather than for failing to prevent harm caused by other people or by natural causes.
+It is also consistent with that characteristic that the exceptions to the general non imposition of liability for omissions include situations where there has been a voluntary assumption of responsibility to prevent harm (situations which have sometimes been described as being close or akin to contract), situations where a person has assumed a status which carries with it a responsibility to prevent harm, such as being a parent or standing in loco parentis, and situations where the omission arises in the context of the defendants having acted so as to create or increase a risk of harm. 5.
+The argument that most cases can be equally analysed in terms of either an act or an omission, sometimes illustrated by asking whether a road accident is caused by the negligent drivers act of driving or by his omission to apply the brakes or to keep a good lookout, does not reflect the true nature and purpose of the distinction, as explained above.
+The argument was answered by Lord Hoffmann in Stovin v Wise (p 945): One must have regard to the purpose of the distinction as it is used in the law of negligence, which is to distinguish between regulating the way in which an activity may be conducted and imposing a duty to act upon a person who is not carrying on any relevant activity.
+To hold the defendant liable for an act, rather than an omission, it is therefore necessary to be able to say, according to common sense principles of causation, that the damage was caused by something which the defendant did.
+If I am driving at 50 miles an hour and fail to apply the brakes, the motorist with whom I collide can plausibly say that the damage was caused by my driving into him at 50 miles an hour. 6.
+In relation to the cases discussed in Lord Hughess para 114, it follows from the foregoing explanation of the distinction between acts and omissions that Hill and Smith were concerned with omissions, as in each case the claimant sought to have the police held liable for death or personal injuries which had been caused not by the police but by a third party.
+Calveley, Elguzouli Daf and Brooks, on the other hand, were concerned with positive acts, but were cases in which a duty of care was held not to exist for other reasons, as explained earlier.
+In Calveley, the plaintiffs sought to have the police held liable for economic loss and other harm which they had caused by subjecting the plaintiffs to disciplinary proceedings which were unduly prolonged.
+In Elguzouli Daf, the plaintiffs sought to have the Crown Prosecution Service held liable for a loss of liberty which they had caused by subjecting the plaintiffs to criminal proceedings which were unduly prolonged.
+In Brooks, the claimant sought to have the police held liable for a mental illness which they had caused by treating him inconsiderately. 7.
+So far as the cases discussed in Lord Hughess paras 115 117 are concerned, Goldman v Hargrave [1967] 1 AC 645 and Thomas Graham Ltd v Church of Scotland 1982 SLT (Sh Ct) 26 concerned the responsibilities of an occupier of land in respect of dangers to his neighbours property which arise on his land: responsibilities which can be understood as arising from his exclusive right of possession.
+Michael was clearly concerned with an omission, as Lord Toulsons judgment made clear: the police were sought to be made liable for the death of a woman at the hands of a third party.
+Barrett v Enfield London Borough Council, as explained in Gorringe at para 39, was a case where there was an assumption of parental responsibilities.
+Phelps v Hillingdon London Borough Council, as explained in Gorringe at para 40, concerned a relationship which involved an implied undertaking to exercise reasonable care, akin to the relationship between doctor and patient.
+Returning, then, to the second of the issues identified in para 20 above, it follows that there is no general rule that the police are not under any duty of care when discharging their function of preventing and investigating crime.
+They generally owe a duty of care when such a duty arises under ordinary principles of the law of negligence, unless statute or the common law provides otherwise.
+Applying those principles, they may be under a duty of care to protect an individual from a danger of injury which they have themselves created, including a danger of injury resulting from human agency, as in Dorset Yacht and Attorney General of the British Virgin Islands v Hartwell.
+Applying the same principles, however, the police are not normally under a duty of care to protect individuals from a danger of injury Is this case concerned with an omission or with a positive act? In the light of that conclusion, the remaining issues in the case are relatively which they have not themselves created, including injury caused by the conduct of third parties, in the absence of special circumstances such as an assumption of responsibility.
+straightforward and can be dealt with comparatively briefly. (3)
+The role of the police in the accident in which Mrs Robinson was injured is not comparable to that of the defendant in the examples commonly given of pure omissions: for example, someone who watches and does nothing as a blind man approaches the edge of a cliff, or a child drowns in a shallow pool.
+Nor, to cite more realistic examples, is it comparable to that of the police authority in Hill, which failed to arrest a murderer before a potential future victim was killed, or the police authority in Michael, which failed to respond to an emergency call in time to save the caller from an attack.
+In such cases the defendant played no active part in the critical events.
+Nor is this a case in which the chief constable is sought to be made liable for the conduct of a third party.
+Lord Reids observation in Dorset Yacht (at p 1027) is apposite: the ground of liability is not responsibility for the acts of the escaping trainees; it is liability for damage caused by the carelessness of these officers in the knowledge that their carelessness would probably result in the trainees causing damage of this kind.
+In the present case, the ground of action is liability for damage caused by carelessness on the part of the police officers in circumstances in which it was reasonably foreseeable that their carelessness would result in Mrs Robinsons being injured.
+Her complaint is not that the police officers failed to protect her against the risk of being injured, but that their actions resulted in her being injured.
+In short, this case is concerned with a positive act, not an omission. (4) Did the police officers owe a duty of care to Mrs Robinson?
+It was not only reasonably foreseeable, but actually foreseen by the officers, that Williams was likely to resist arrest by attempting to escape.
+That is why Willan summoned assistance in the first place, before attempting to arrest Williams, and why it was decided that DS Roebuck and DC Green should be positioned on the opposite side of Williams from Willan and Dhurmea, so as to block his escape route.
+The place where the officers decided to arrest Williams was a moderately busy shopping street in a town centre.
+Pedestrians were passing in close vicinity to Williams.
+In those circumstances, it was reasonably foreseeable that if the arrest was attempted at a time when pedestrians especially physically vulnerable pedestrians, such as a frail and elderly woman were close to Williams, they might be knocked into and injured in the course of his attempting to escape.
+That reasonably foreseeable risk of injury was sufficient to impose on the officers a duty of care towards the pedestrians in the immediate vicinity when the arrest was attempted, including Mrs Robinson. (5) Was the Court of Appeal entitled to overturn the Recorders finding that the officers had failed in their duty of care?
+The Court of Appeal was correct to emphasise the importance of not imposing unrealistically demanding standards of care on police officers acting in the course of their operational duties.
+That is most obviously the case where critical decisions have to be made in stressful circumstances with little or no time for considered thought.
+This point has long been recognised.
+For example, in Marshall v Osmond, concerned with a police driver engaged in the pursuit of a suspect, Sir John Donaldson MR stated, as noted at para 47 above, that the officers duty was to exercise such care and skill as is reasonable in all the circumstances.
+He went on to state that those were no doubt stressful circumstances, and that although there was no doubt that the officer made an error of judgment, he was far from satisfied that the officer had been negligent (p 1038).
+The same point was made, in a context closer to that of the present case, by May LJ in Costello v Chief Constable of Northumbria [1999] ICR 752, 767, where he remarked that liability should not turn on . shades of personal judgment and courage in the heat of the potentially dangerous moment.
+It is also necessary to remember that a duty to take reasonable care can in some circumstances be consistent with exposing individuals to a significant degree of risk.
+That is most obviously the case in relation to the police themselves.
+There are many circumstances in which police officers are exposed to a risk of injury, but in which such exposure is consistent with the taking of reasonable care for their safety.
+Equally, there may be circumstances which justify the taking of risks to the safety of members of the public which would not otherwise be justified.
+A duty of care is always a duty to take such care as is reasonable in the circumstances.
+In the present case, the Recorders finding of negligence was based on a number of matters.
+It is unnecessary to consider them all, as at least one of them clearly did not involve imposing on the officers an unrealistically high standard of care.
+The Recorder accepted DS Willans evidence that the officers were aware that there was a significant risk that Williams would try to run away, and that he was aware of the potential for harm to members of the public in that event.
+Willan also gave evidence that it was necessary to consider the risk to those in the vicinity, and that if it had appeared to him that someone was in harms way, he would have walked past Williams without effecting the arrest.
+The Recorder noted that that was in accordance with the relevant guidance provided to police officers.
+Although Mrs Robinson had just walked past Williams and was within a yard of him, in full view of the officers, Willan simply failed to notice her.
+The Recorder was entitled to find negligence on that basis alone, regardless of the soundness of his other criticisms of how the arrest was carried out.
+Willan accepted that he ought to have been taking care for the safety of members of the public in the immediate vicinity.
+If he had been taking such care, he would have noticed Mrs Robinson: she was immediately in front of him, next to Williams.
+This was not a situation in which Williams had to be arrested at that precise moment, regardless of the risk that a passer by might be injured: on Willans evidence, if he had noticed that someone was in harms way, he would not have made the arrest at that moment. (6) Were Mrs Robinsons injuries caused by the officers breach of their duty of care?
+The chain of events which resulted in Mrs Robinsons being injured was initiated by DS Willans and PC Dhurmeas attempt to arrest Williams.
+It was their taking hold of him which caused him to attempt to struggle free, and it was in the course of the resultant tussle between the three men that Mrs Robinson was knocked over and injured.
+In these circumstances, it is impossible to argue that the chain of causation linking the attempt to arrest Williams to Mrs Robinsons being injured was interrupted by Williams voluntary decision to resist arrest, which resulted in his knocking into her.
+The voluntary act of a third party, particularly when it is of a criminal character, will often constitute a novus actus interveniens, but not when that act is the very one which the defendant was under a duty to guard against: see, for example, Dorset Yacht and Attorney General of the British Virgin Islands v Hartwell.
+It would be absurd to say that the officers owed Mrs Robinson a duty of care not to arrest Williams when she was in the immediate vicinity, because of the danger that she might be injured if he attempted to escape, and then to hold that his attempted escape broke the chain of causation between their negligently arresting him when she was next to him, and her being injured when he attempted to escape.
+In short, Mrs Robinson was injured as a result of being exposed to the very danger from which the officers had a duty of care to protect her.
+Conclusion
+For these reasons, I would allow the appeal, hold that the Chief Constable is liable in damages to Mrs Robinson, and remit the case for the assessment of damages.
+LORD MANCE:
+I have read with benefit the judgments prepared by Lord Reed and Lord Hughes in this case.
+I agree that the case is one of positive conduct by the police in instigating an arrest on public pavement, which caused injury to Mrs Robinson, an otherwise uninvolved passer by.
+Having watched the excellent CCTV recording and compared it with the judges findings, I confess to the same doubt as Lord Hughes about the judges finding of negligence.
+The pavement was quite busy, the relevant suspects were for the first time stationary, and Mrs Robinson might appear to have passed by and to be at a little distance, by the time the police seized what they obviously thought was the opportune moment.
+However, like Lord Hughes and bearing in mind the evidence accepted by the judge as set out by Lord Reed in his para 77, I do not on balance consider that this is a case where an appellate court should interfere with the judges conclusions, after hearing all the evidence.
+As Lord Reed demonstrates, it is unnecessary in every claim of negligence to resort to the three stage analysis (foreseeability, proximity and fairness, justice and reasonableness) identified in Caparo Industries Ltd v Dickman [1990] 2 AC 605.
+There are well established categories, including (generally) liability for causing physical injury by positive act, where the latter two criteria are at least assumed.
+The concomitant is that there is, absent an assumption of responsibility, no liability for negligently omitting to prevent damage occurring to a potential victim.
+This also provides a rationale for the general rule that the police and CPS have no liability for failure, by efficient investigation or pursuit of an actual or potential offence, to prevent a subsequent victim from suffering physical injury at the hands of a third party for whose acts the State is not responsible: Michael v Chief Constable of South Wales Police [2015] UKSC 2; [2015] AC 1732, paras 114 130 and 137.
+Economic loss also falls outside the established category of liability for physical injury, but an assumption of responsibility for economic loss will, as discussed in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, likewise satisfy the latter two Caparo criteria.
+Outside any established category, the law will proceed incrementally, and all three stages of the Caparo analysis will be material.
+It would be unrealistic to suggest that, when recognising and developing an established category, the courts are not influenced by policy considerations.
+No one now suggests that the common law has not changed since the Saxon era, merely to be revealed from time to time by an increasingly perceptive judiciary.
+As Lord Reid said famously in The Judge as Law maker: There was a time when it was thought almost indecent to suggest that judges make law they only declare it .
+But we do not believe in fairy tales any more: 12 Journal of the Society of Public Teachers of Law 22 (1972); see also Lord Goffs comments on the declaratory theory of the common law in Kleinwort Benson Ltd v Lincoln County Council [1999] 2 AC 349, 377 379.
+The courts are not a Law Commission, but, in recognising the existence of any generalised duty in particular circumstances they are making policy choices, in which considerations such as proximity and fairness, justice and reasonableness must inhere.
+Landmark examples are Donoghue v Stevenson [1932] UKHL 100; [1932] AC 562, in relation to physical injury, and Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, in circumstances where there has been an assumption of responsibility to give accurate information upon which it is foreseeable that the recipient will rely to its economic benefit or detriment.
+The key to the application of the above principles is to ascertain whether or not a particular situation falls within an established category.
+Lord Reed treats physical loss resulting foreseeably from positive conduct as constituting axiomatically such a category, whatever the precise circumstances.
+I accept that principle as generally correct: see eg Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310, 396F G, per Lord Keith.
+But I am not persuaded that it is always a safe guide at the margins.
+I note that Lord Oliver went no further in Caparo than to say that, in the context of loss caused by physical damage, the existence of the nexus between the careless defendant and the injured plaintiff can rarely give rise to any difficulty: p 632F.
+He went on to identify Hill, so far as concerns the alternative ground of that decision, as a case where, in any ordinary meaning of the words, a relationship of proximity (in the literal sense of closeness) exists but where the law, whilst recognising the fact of the relationship, nevertheless denies a remedy to the injured party on the ground of public policy: p 633D E.
+Lord Reed says that Smith v Ministry of Defence [2013] UKSC 41; [2014] AC 52 was a case where it was appropriate to apply the three stage Caparo approach because it raised a novel legal issue, relating to the provision of protective equipment to soldiers on active duty, and the scope of combat immunity: it did not concern an established category of liability.
+But, why not? Combat immunity, where it applies, is, I suggested at para 114, itself not so much an entirely separate principle as the result of a general conclusion that it is not fair, just or reasonable to regard the Crown or its officers, soldiers or agents as under a duty of care to avoid injury or death in their acts or omissions in the conduct of an active military operation or act of war.
+And, however that may be, a reading of the judgments shows that no distinctions were there drawn between acts and omissions, either generally or in the specific context of the discussion which is to be found on prior authority, including Hill v Chief Constable of West Yorkshire [1989] AC 53, Elguzouli Daf v Commissioner of Police for the Metropolis [1995] QB 335, Stovin v Wise [1996] AC 923, Brooks v Commissioner of Police for the Metropolis [2005] 1 WLR 1495 and Van Colle v Chief Constable of the Hertfordshire Police [2009] AC 225: see Smiths case at eg paras 82 83, 95 96 and 97, per Lord Hope and paras 108 109, 114, 117 and 136, per Lord Mance (dissenting).
+Lord Carnwaths (dissenting) judgment at paras 157 170 is also of interest, for noting that the issue was a novel one, and that the closest analogy consisted in the above line of cases about police responsibility, again without drawing any distinction between acts and omissions.
+The case was a novel one, not because it fell outside the general category of negligent acts or omissions allegedly causing physical loss, but because it was not (yet) established that the established category embraced the particular types of acts or omissions alleged and the circumstances in which soldiers might suffer from them.
+Indeed, it was accepted on all sides that combat immunity meant that the established category was not on any view completely unqualified, and the question arose in that respect what scope the courts should, as a matter of policy, attach to the principle of combat immunity.
+A similar difficulty arises in fitting other authorities which Lord Reed accepts as correctly decided into any absolutely fixed legal mould.
+The cases of Hill and Smith v Chief Constable of Sussex Police [2008] UKHL 50; [2009] AC 225 can, I agree, be rationalised as cases of omission, but that was not how they were reasoned.
+The case of Calveley v Chief Constable of the Merseyside Police [1989] AC 1228 involved a claim by police officers for pursuing disciplinary proceedings with insufficient expedition, thereby, it was alleged, causing them physical loss, which was held to be unforeseeable, and economic loss of a kind, which is, in the absence of any assumption of responsibility, generally irrecoverable.
+But again Lord Bridge buttressed his conclusion with general statements about the need to shield the police from the pursuit of claims in relation to their investigative activity, without distinction between acts and omissions.
+In Elguzouli Daf there were two similarly based claims, but the consequences of the CPSs failure to pursue their investigation with sufficient expedition were alleged to be that the claimants remained in custody for some 22 and 85 days respectively.
+In the absence of any specific assumption of responsibility, the Court of Appeal held that policy factors argued against the recognition of a duty of care owed by the CPS to those it prosecutes: p 349B C, per Steyn LJ, who went on: While it is always tempting to yield to an argument based on the protection of civil liberties, I have come to the conclusion that the interests of the whole community are better served by not imposing a duty of care on the CPS.
+As Morritt LJ put it at p 352G H, policy considerations similar to those which weighed with Lord Keith in Hills case excluded any general duty to use reasonable care in the institution and conduct of criminal proceedings.
+The reasoning contains no hint of a categorical distinction between acts and omissions.
+A year later, the House had before it in Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] 1 AC 211 a claim by cargo owners against a classification society by whose alleged negligence the carrying vessel was allowed to continue on her voyage after temporary repairs to a crack in her hull, which then caused the loss of both vessel and cargo.
+Cargo owners primary submission was that, this being a case of physical damage to property in which the plaintiff had a proprietary or possessory interest, the only requirement was proof of reasonable foreseeability.
+The House rejected this categorically, in the following passage from Lord Steyns speech, p 235D H): Counsel for the cargo owners submitted that in cases of physical damage to property in which the plaintiff has a proprietary or possessory interest the only requirement is proof of reasonable foreseeability.
+For this proposition he relied on observations of Lord Oliver of Aylmerton in Caparo Industries Plc v Dickman [1990] 2 AC 605, 632C 633D.
+Those observations, seen in context, do not support his argument.
+They merely underline the qualitative difference between cases of direct physical damage and indirect economic loss.
+The materiality of that distinction is plain.
+But since the decision in Dorset Yacht Co Ltd v Home Office [1970] AC 1004 it has been settled law that the elements of foreseeability and proximity as well as considerations of fairness, justice and reasonableness are relevant to all cases whatever the nature of the harm sustained by the plaintiff.
+Saville LJ explained at 1077[D E]: . whatever the nature of the harm sustained by the plaintiff, it is necessary to consider the matter not only by inquiring about foreseeability but also by considering the nature of the relationship between the parties; and to be satisfied that in all the circumstances it is fair, just and reasonable to impose a duty of care.
+Of course, these three matters overlap with each other and are really facets of the same thing.
+For example, the relationship between the parties may be such that it is obvious that a lack of care will create a risk of harm and that as a matter of common sense and justice a duty should be imposed.
+Again in most cases of the direct infliction of physical through loss or injury carelessness, it is self evident that a civilised system of law should hold that a duty of care has been broken, whereas the infliction of financial harm may well pose a more difficult problem.
+Thus the three so called requirements for a duty of care are not to be treated as wholly separate and distinct requirements but rather as convenient and helpful approaches to the pragmatic question whether a duty should be imposed in any given case.
+In the end whether the law does impose a duty in any particular circumstances depends upon those circumstances, .
+That seems to me a correct summary of the law as it now stands.
+It follows that I would reject the first argument of counsel for the cargo owners. (italics added for emphasis) While both the House and Saville LJ (as he was) were happy to accept that in most cases of the direct infliction of physical loss or injury through carelessness, liability was self evident, they were cautious to warn against absolute rules in that respect.
+Elguzouli Daf was, as Lord Reed notes, para 59, followed and applied in SXH v Crown Prosecution Service [2017] UKSC 30; [2017] 1 WLR 1401, where the complaint was that the CPS had acted unreasonably in prosecuting an asylum seeker, leading to her detention for some months.
+Lord Toulson giving the majority judgment said: 38.
+The duty of the CPS is to the public, not to the victim or to the suspect, who have separate interests.
+To recognise a duty of care towards victims or suspects or both, would put the CPS in positions of potential conflict, and would also open the door to collateral interlocutory civil proceedings and trials, which would not be conducive to the best operation of the criminal justice system.
+Similar considerations are relevant when considering the applicability of article 8 in the context of a decision to prosecute.
+A decision to prosecute does not of itself involve a lack of respect for the autonomy of the defendant but places the question of determining his or her guilt before the court, which will itself be responsible for deciding ancillary questions of bail or remand in custody and the like.
+The claim here was clearly for a positive act, causing excessive detention.
+Finally, Lord Reed dismisses Brookss case on the basis that it concerned police behaviour which was merely insensitive and so not normally actionable, even if it results in a psychiatric illness: para 60.
+But the starting point for the Houses consideration of the case was that Mr Brooks had, as a key witness to the fatal attack on Stephen Lawrence on 22 April 1993, suffered from a very serious post traumatic stress disorder until the spring of 1998, and that this had been severely exacerbated or aggravated as a result of the polices failure to treat him lawfully: para 10.
+Lord Steyn said in this connection that: In particular the matter must be considered on the basis that Mr Brooks has suffered personal injury (in the form of an exacerbation of or aggravation of the post traumatic stress that was induced by the racist attack itself) in consequence of the negligence of the officers and that injury of this type was reasonably foreseeable. (para 16) That being the basis on which the matter fell to be considered, the appellant advanced the argument that Hills case could be distinguished.
+The House disposed of that argument tersely as follows, para 32: The only suggested distinction ultimately pursued was that in Hills case the police negligence was the indirect cause of the murder of the daughter whereas in the present case the police directly caused the harm to Mr Brooks.
+That hardly does justice to the essential reasoning in Hills case.
+In any event, Calveley , Elguzouli Daf , and Kumar were cases of alleged positive and direct negligence by the police.
+The distinction is unmeritorious.
+According to the Houses decision in Alcocks case, what is necessary in order to recover damages for negligently caused psychiatric injury is not only foreseeability, but also proximity.
+Both requirements appear clearly to have been present in Brooks case.
+In the event, Lord Steyn also treated the third stage of the Caparo test (fairness, justice and reasonableness) as applicable.
+But it is clear that the House decided the case by reference to a general principle derived from the cases of Hill, Calveley and Elguzouli Daf, and not on the basis of any general distinction between either physical and psychiatric injury or acts or omission.
+Rather, it decided the case on the basis that, outrageous negligence aside, the police owe no duty of care not to cause by positive act or omissions harm to victims of serious crime, or witnesses to serious crime, with whom they have contact; and it rejected categorically any distinction between indirect causation of the murder of an innocent victim, due to failure properly to investigate past offences against other victims (Hills case) and harm directly caused to Mr Brooks (Brookss case itself): paras 18 and 32.
+What I think emerges from this examination of past authority is that it is not possible to state absolutely that policy considerations may not shape police or CPS liability in a context where the conduct of the police may perfectly well be analysed as positive, rather than simply as involving some form of omission.
+It is at least clear that extended detention and psychiatric injury, due to the polices or CPSs positive acts or omissions, will be treated as outside any otherwise generally established category of liability for negligence.
+As to the present appeal, I also think that there was open to the law a genuine policy choice whether or not to hold the police responsible on a generalised basis for direct physical intervention on the ground, causing an innocent passer by physical injury, in the performance of their duties to investigate, prevent and arrest for suspected offending by some third person(s).
+In my opinion, that policy choice should now be made unequivocally in the sense indicated by Lord Reed.
+In Hills case Lord Keith stated (p 59B C), that: There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts or omissions.
+So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence.
+Lord Keith then cited as instances where liability for negligence has been established two authorities: Knightley v Johns [1982] 1 WLR 349 and Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242.
+Neither comes particularly close to the present case, and indeed, in reasoning to some extent echoed in the present Court of Appeal decision, the Court of Appeal (Leveson and Toulson LJJ) in Desmond v Chief Constable of Nottinghamshire Police [2011] EWCA Civ 3; [2011] PTSR 1369, identified the modified core principle in Hill as meaning that: Absent special circumstances, the police do not owe individual members of the public a common law duty of care in undertaking their operational duties of investigating, detecting, suppressing and prosecuting crime: para 31.
+But it recognised that the modified core principle in Hill may not apply in exceptional circumstances at the margins.
+It gave as examples of where it would not apply cases of negligent driving by the police and of assumption of responsibility.
+It also identified as further examples the two cases mentioned by Lord Keith.
+As to those two cases, the former concerned police (mis)management of the aftermath of a relatively mundane traffic accident, by giving instructions to an officer to ride against the traffic flow in a tunnel, as a result of which he suffered personal injury.
+The latter concerned police failure to re equip themselves with fire fighting equipment, before taking the drastic step, with a view to forcing the intruders arrest, of firing an incendiary canister into a building in which an intruder had broken with a gun.
+The present case concerns in contrast a quite delicate operational decision involving coordination between four officers, with a view to the arrest of suspected drug dealers, in a public place.
+It can be suggested that this raises special considerations, negativing any duty of care.
+But in my view we should not accept that suggestion.
+Rather we should now recognise the direct physical interface between the police and the public, in the course of an arrest placing an innocent passer by or bystander at risk, as falling within a now established area of general police liability for positive negligent conduct which foreseeably and directly inflicts physical injury on the public.
+On that basis, I would also allow this appeal and restore the judges judgment.
+LORD HUGHES:
+The question of law
+The general question of importance in this appeal is when the police do or do not owe a legal duty of care to individuals in the course of performing their public functions of investigating and preventing crime.
+It is important that the question is posed in those terms.
+It may have become a convenient shorthand to express the decisions of the House of Lords and this court in Hill v Chief Constable of West Yorkshire, Brooks v Commissioner of Police of the Metropolis, Smith v Chief Constable of Sussex Police and Michael v Chief Constable of South Wales in terms of a rule of police immunity.
+That may not be surprising since Lord Keith did at one point in Hill refer to the police as immune from an action of the kind there brought.
+Whether convenient or not, that shorthand is misleading, as Lord Toulson explained in Michael at para 44.
+Whatever the answer to the question posed, the police do not enjoy some immunity from liability which otherwise would arise.
+Like others, however, they do not owe a duty of care to avoid harm or damage in every situation where such harm or damage can be foreseen.
+The general rule of law of tort is that the foreseeability of harm is a necessary but not a sufficient condition for liability.
+So in all the many situations and relationships which may result in damage, the question becomes: when is the defendant under a legal duty of care to the claimant to take reasonable steps to avoid it.
+For the reasons very clearly set out by Lord Reed at paras 21 30 it is neither necessary nor appropriate to treat Caparo Industries v Dickman [1990] 2 AC 605 as requiring the application of its familiar three stage examination afresh to every action brought.
+Where the law is clear that a particular relationship, or recurrent factual situation, gives rise to a duty of care, there is no occasion to resort to Caparo, at least unless the court is being invited to depart from previous authority.
+The four cases of Hill, Brooks, Smith and Michael make it clear that they do not touch on the liability of police officers if by positive negligent act they cause physical harm to individuals or damage to property.
+That is apparent from: i) the approval in those cases of the decisions in Rigby v Chief Constable of Northamptonshire (negligent use of a CS gas canister in an attempt to force an armed psychopath from a shop in which he had gone to ground) and Knightley v Johns (negligent organisation of traffic in an emergency situation); and ii) subsequent cases, that: the explicit statement by Lord Keith in Hill at 59B, approved in There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts or omissions. (although see below for consideration of omissions).
+There are other examples of recognition of the duty of care which police officers owe not by positive negligent act to cause physical harm.
+They include Marshall v Osmond (a car chase) and Ashley v Chief Constable of Sussex Police (where negligent shooting of a suspected criminal was conceded).
+The principal cases, however, also contain explicit statements of the vital policy considerations which impose limits on the duties of care which the police owe to individuals when engaged in their public function of investigating and preventing crime.
+The analysis begins with Lord Keith in Hill.
+With the express agreement of three other members of the court, and a concurring speech by the fifth, he said at 63A: That is sufficient for the disposal of the appeal.
+But in my opinion there is another reason why an action for damages in negligence should not lie against the police in circumstances such as those of the present case, and that is public policy Potential existence of such liability may in many instances be in the general public interest, as tending towards the observance of a higher standard of care in the carrying on of various different types of activity.
+I do not, however, consider that this can be said of police activities.
+The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime.
+From time to time they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it.
+In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind.
+The possibility of this happening in relation to the investigative operations of the police cannot be excluded.
+Further it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes.
+While some such actions might involve allegations of a simple and straightforward type of failure for example that a police officer negligently tripped and fell while pursuing a burglar others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do.
+The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources.
+Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so.
+A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial.
+The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime.
+Closed investigations would require to be reopened and retraversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted.
+Lord Templeman added this at 65: Moreover, if this action lies, every citizen will be able to require the court to investigate the performance of every policeman.
+If the policeman concentrates on one crime, he may be accused of neglecting others.
+If the policeman does not arrest on suspicion a suspect with previous convictions, the police force may be held liable for subsequent crimes.
+The threat of litigation against a police force would not make a policeman more efficient.
+The necessity for defending proceedings, successfully or unsuccessfully, would distract the policeman from his duties.
+This action is in my opinion misconceived and will do more harm than good.
+In Brooks at para 28 Lord Steyn qualified that part of what Lord Keith had said about the best endeavours of police officers, saying that a more sceptical approach to the carrying out of all public functions was necessary.
+His qualification was shared by Lord Bingham at paras 3 and 4 and by Lord Nicholls at para 6.
+But notwithstanding that reservation, Lord Steyn, with whom Lord Rodger and Lord Brown fully agreed, otherwise fully endorsed the reasoning of Lord Keith.
+At para 30 he held that the core principle of Hill had remained unchallenged for many years.
+He went on: It is, of course, desirable that police officers should treat victims and witnesses properly and with respect: compare the Police (Conduct) Regulations 2004 (SI 2004/645).
+But to convert that ethical value into general legal duties of care on the police towards victims and witnesses would be going too far.
+The prime function of the police is the preservation of the Queens peace.
+The police must concentrate on preventing the commission of crime; protecting life and property; and apprehending criminals and preserving evidence : A retreat from the principle in Hills case would have detrimental effects for law enforcement.
+Whilst focusing on investigating crime, and the arrest of suspects, police officers would in practice be required to ensure that in every contact with a potential witness or a potential victim time and resources were deployed to avoid the risk of causing harm or offence.
+Such legal duties would tend to inhibit a robust approach in assessing a person as a possible suspect, witness or victim.
+By placing general duties of care on the police to victims and witnesses the polices ability to perform their public functions in the interests of the community, fearlessly and with despatch, would be impeded.
+It would, as was recognised in Hills case, be bound to lead to an unduly defensive approach in combating crime.
+As Lord Steyn pointed out (para 19), there can be no doubt that Lord Keiths analysis represented the alternative ground of decision for, and part of the ratio decidendi of, Hill.
+In the same case, Lord Bingham, at para 4, said of the suggested duties of care to witnesses which were advanced by the claimant, But these are not duties which could be imposed on police officers without potentially undermining the officers performance of their functions, effective performance of which serves an important public interest.
+That is, in my opinion, a conclusive argument in the Commissioners favour.
+And at para 5 Lord Nicholls held that These duties would cut across the freedom of action the police ought to have when investigating serious crime.
+In Smith Lord Bingham dissented on the extent of the duty of care owed to those who complained to the police about risks from another identified person and advanced what he termed a liability principle recognising a duty of care in narrow circumstances.
+But notwithstanding that opinion, he reviewed the policy considerations voiced by Lord Keith in Hill and by the House in Brooks and, except for the reservation entered in Brooks which is explained above, he did not question them: see paras 48 52.
+The majority of the House expressly endorsed the policy considerations subject to the same reservation.
+At para 74 Lord Hope addressed Lord Binghams opinion that the limited liability which he would have imposed was not inconsistent with the policy factors, and that the observations in Hill and Brooks were to be read in the context of the duties there contended for.
+He held that they were not so limited: In my opinion however it is clear from Lord Steyns opinion, read as a whole, that he was laying down a principle of public policy that was to be applied generally.
+In para 22 he referred to his own judgment in Elguzouli Daf v Comr of Police of the Metropolis [1995] 1 QB 335.
+That was, as he said, a different case altogether, as it raised the question whether the Crown Prosecution Service (CPS) owed a duty of care to those whom it was prosecuting.
+But he relied on the case by analogy.
+In holding in Elguzouli Daf that policy factors argued against the recognition of a duty of care owed by the CPS to those whom it prosecutes, he said this at p 349: While it is always tempting to yield to an argument based on the protection of civil liberties, I have come to the conclusion that the interests of the whole community are better served by not imposing a duty of care on the CPS.
+In my view, such a duty of care would tend to have an inhibiting effect on the discharge by the CPS of its central function of prosecuting crime.
+It would in some cases lead to a defensive approach by prosecutors to their multifarious duties.
+It would introduce a risk that prosecutors would act so as to protect themselves from claims of negligence. 75.
+The phrase the interests of the whole community was echoed in the last sentence of the passage which I have quoted from Lord Steyns opinion in Brooks.
+There is an echo too in Brooks of the warning against yielding to arguments based on civil liberties: see the first sentence of that quotation where he warns against a retreat from the core principle.
+The point that he was making in Brooks, in support of the core principle in Hill, was that the principle had been enunciated in the interests of the whole community.
+Replacing it with a legal principle which focuses on the facts of each case would amount, in Lord Steyn's words, to a retreat from the core principle.
+We must be careful not to allow ourselves to be persuaded by the shortcomings of the police in individual cases to undermine that principle.
+That was the very thing that he was warning against, because of the risks that this would give rise to.
+As Ward LJ said in Swinney v Chief Constable of Northumbria Police Force [1997] QB 464, 487, the greater public good outweighs any individual hardship.
+A principle of public policy that applies generally may be seen to operate harshly in some cases, when they are judged by ordinary delictual principles.
+Those are indeed the cases where, as Lord Steyn put it, the interests of the wider community must prevail over those of the individual. 76.
+The risk that the application of ordinary delictual principles would tend to inhibit a robust approach in assessing a person as a possible suspect or victim, which Lord Steyn mentioned in the last sentence of the passage that I have quoted from his opinion in Brooks, is directly relevant to cases of the kind of which Smiths case is an example Police work elsewhere may be impeded if the police were required to treat every report from a member of the public that he or she is being threatened with violence as giving rise to a duty of care to take reasonable steps to prevent the alleged threat from being executed.
+Some cases will require more immediate action than others.
+The judgment as to whether any given case is of that character must be left to the police.
+I do not find it possible to approach Hill and Brooks as cases that turned on their own facts.
+The fact that Lord Steyn applied the decision in Hill to the facts of Brooks, which were so very different, underlines the fact that Lord Steyn was indeed applying a core principle that had been unchallenged for many years.
+That principle is, so it seems to me, that in the absence of special circumstances the police owe no common law duty of care to protect individuals against harm caused by criminals.
+The two relevant justifications advanced for the principle are (i) that a private law duty of care in relation to individuals would be calculated to distort, by encouraging defensive action, the manner in which the police would otherwise deploy their limited resources; (ii) resources would
+be diverted from the performance of the public duties of the
+At para 89 Lord Phillips observed that public policy has been at the heart of consideration whether a duty of care is owed by police officers to individuals.
+After reviewing the policy factors he concluded at para 97: police in order to deal with claims advanced for alleged breaches of private law duties owed to individuals.
+At para 108 Lord Carswell said this:
+Lastly, Lord Brown added, at paras 131 133 The factor of paramount importance is to give the police sufficient freedom to exercise their judgment in pursuit of their objects in work in the public interest, without being trammelled by the need to devote excessive time and attention to complaints or being constantly under the shadow of threatened litigation.
+Over reaction to complaints, resulting from defensive policing, is to be avoided just as much as failure to react with sufficient speed and effectiveness.
+That said, one must also express the hope that police officers will make good use of this freedom, with wisdom and discretion in judging the risks, investigating complaints and taking appropriate action to minimise or remove the risk of threats being carried out. 131.
+Fourthly, some at least of the public policy considerations which weighed with the House in Hill and Brooks to my mind weigh also in the present factual context.
+I would emphasise two in particular. 132.
+First, concern that the imposition of the liability principle upon the police would induce in them a detrimentally defensive frame of mind.
+So far from doubting whether this would in fact be so, it seems to me inevitable.
+If liability could arise in this context (but not, of course, with regard to the polices many other tasks in investigating and combating crime) the police would be likely to treat these particular reported threats with especial caution at the expense of the many other threats to life, limb and property of which they come to learn through their own and others endeavours.
+They would be likely to devote more time and resources to their investigation and to take more active steps to combat them.
+They would be likely to arrest and charge more of those reportedly making the threats and would be more likely in these cases to refuse or oppose bail, leaving it to the courts to take the responsibility of deciding whether those accused of making such threats should remain at liberty.
+The police are inevitably faced in these cases with a conflict of interest between the person threatened and the maker of the threat.
+If the police would be liable in damages to the former for not taking sufficiently strong action but not to the latter for acting too strongly, the police, subconsciously or not, would be inclined to err on the side of over reaction.
+I would regard this precisely as inducing in them a detrimentally defensive frame of mind.
+Similarly with regard to their likely increased focus on these reported threats at the expense of other police work. 133.
+The second public policy consideration which I would emphasise in the present context is the desirability of safeguarding the police from legal proceedings which, meritorious or otherwise, would involve them in a great deal of time, trouble and expense more usefully devoted to their principal function of combating crime.
+This was a point made by Lord Keith of Kinkel in Hill and is of a rather different character from that made by Lord Steyn in para 30 of his opinion in Brooks see para 51 of Lord Binghams opinion.
+In respectful disagreement with my Lord, I would indeed regard actions pursuant to the liability principle as diverting police resources away from their primary function.
+Not perhaps in every case but sometimes certainly, the contesting of these actions would require lengthy consideration to be given to the deployment of resources and to the nature and extent of competing tasks and priorities.
+In Michael Lord Toulson (at para 121) was inclined to accord force to criticism of the fear of defensive policing.
+But he held that it was possible to imagine that liability might lead to police forces changing their priorities, and that it was hard to see it as in the public interest that the determination of priorities should be affected by the risk of being sued.
+He added that the one thing of which any court could be sure is that the payment of compensation would have to come from police budgets, at the expense of spending on policing unless an increase in budgets from the public purse were to ensue.
+It should be acknowledged that it is sometimes asserted that that part of the policy considerations which related to the danger of defensive policing lacks hard evidence.
+That may technically be so, since there has not existed the kind of duty of care which would test it in practice.
+But like Lord Brown in Smith I for my part would regard that risk as inevitable.
+It can scarcely be doubted that we see the consequences of defensive behaviour daily in the actions of a great many public authorities.
+I do not see that it can seriously be doubted that the threat of litigation frequently influences the behaviour of both public and private bodies and individuals.
+However that may be, the several statements of the policy considerations, especially in three different decisions of the House of Lords, are simply too considered, too powerful and too authoritative in law to be consigned to history, as I do not understand Lord Reed to suggest that they should be.
+Nor do I see it as possible to treat them as no more than supporting arguments.
+As all of them, and especially the speech of Lord Hope set out at para 10 above, make clear, the statements are intended as ones of general principle.
+No doubt Hill was decided at a time when Anns v Merton London Borough Council was understood to provide the test for the existence of a duty of care.
+But the error of Anns was exposed at the latest in 1991 in Murphy v Brentwood Council, whilst Brooks and Smith were decided in 2005 and 2008 respectively.
+In any event, the error of Anns lay chiefly in its effective imposition of an often impossible burden on a defendant to demonstrate that public policy ought to negate the existence of a duty of care.
+The relevance of considerations of public policy, such as those so fully adumbrated in Hill, Brooks and Smith, and the fact that they may indeed demonstrate that a duty of care is not owed, remains unchanged by the different formulation in Caparo.
+In Michael (at para 97) Lord Toulson helpfully brought into the analysis the general reluctance of English law to impose liability in tort for pure omissions.
+Smith v Littlewoods Organisation Ltd [1987] AC 241, to which he referred, is a good example.
+There, the claimant suggested that the occupiers of a disused cinema, awaiting demolition and reconstruction as a shop, owed a duty to exclude vandals from getting in, so that they were liable to neighbours when the vandals started a fire which spread to adjoining properties.
+That was, no doubt, a case of pure omission, and was so analysed by Lord Goff, although not by the majority of the House of Lords, through Lord Mackay.
+It is clear that the reluctance of the common law to impose liability in tort for pure omissions is another reason why the police do not owe a duty of care to individuals who turn out to be the victims of crime (as in Hill or Smith) or to witnesses (as in Brooks) or to suspects (as in Calveley v Chief Constable of Merseyside and Elguzouli Daf ).
+But analysis in terms of omissions cannot be the only, or sufficient, reason why such duties of care are not imposed, nor why there is very clearly no duty owed to individuals in the manner in which investigations are conducted.
+There are at least two reasons why this is so.
+First, the rule against liability for omissions is by no means general.
+In Smith v Littlewoods Organisation Ltd Lord Goff identified at any rate several situations where such liability is imposed.
+One is where there has been an assumption of responsibility towards the claimant.
+The law readily finds such an assumption in many common situations, such as employment, teaching, healthcare and the care of children, and imposes liability for omitting to protect others.
+It could equally readily do so in the case of police officers with a general public duty to protect the peace, but it does not.
+Another was epitomised by Goldman v Hargrave and by Thomas Graham Ltd v Church of Scotland 1982 SLT (Sh Ct) 26, a case very similar to Littlewoods where the occupier knew of previous incursions by third parties and where Lord Goff accepted that liability was rightly imposed for omission to keep them out.
+If the occupation of land is treated as imposing liability for an omission, the law could, and might, have said that the same applies to police officers where they are aware of the risk posed by (or to) those they are investigating, but it does not.
+For the same reasons, the question whether a statutory public duty gives rise to a private duty or not is a fluid one.
+Stovin v Wise and Gorringe are examples where no private duty of care was held to exist.
+Barrett v Enfield London Borough Council, decided after Stovin v Wise, accepted at least in principle the possibility of such a duty in relation to the different statutory scheme there in question.
+Secondly, there is no firm line capable of determination between a case of omission and of commission.
+Some cases may fall clearly on one side of the line, and Hill may have been one of them.
+But the great majority of cases can be analysed in terms of either.
+Michael could be said to be a case of omission to respond adequately to the 999 call.
+But it was argued for the claimant as a case of a series of positive acts, such as, for example, misreporting the complaint when passing it from one police force to another.
+Barrett v Enfield London Borough Council was a case of mixed acts (allegedly negligent placements) and omissions (to arrange adoption).
+Phelps v Hillingdon London Borough Council similarly involved allegedly negligent examination, also a positive act.
+The ultimate reason why there is no duty of care towards victims, or suspects or witnesses imposed on police officers engaged in the investigation and prevention of crime lies in the policy considerations examined above and, in the end, in the clear conclusion, as expressed by Lord Hope in Smith (see para 10 above) that the greater public good requires the absence of any duty of care.
+Likewise the policy considerations will be directly relevant to any suggestion that a duty of care exists towards individuals such as victims, witnesses or suspects via the route of foreseeable risk of psychiatric harm.
+The law remains uncertain about when a claimant can properly be regarded as a primary or a secondary victim for the purposes of recovering damages for psychiatric harm: see Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455, McLoughlin v Grovers [2001] EWCA Civ 1743 per Hale LJ as she then was, and Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.
+But it is clear that no duty of care towards victims of crime, witnesses or suspects can be erected on the back of foreseeability of psychiatric harm, and the reason clearly lies in the policy considerations.
+Thus whilst there remains a duty of care imposed on police officers not by positive action to occasion physical harm or damage to property which ought reasonably to be avoided, there is no duty of care towards victims, witnesses or suspects in the manner of the investigation of offences or the prevention of crime.
+That also means that there is no duty of care to protect individuals from harm caused by the criminal acts of third parties.
+Of course, where action is brought on the basis of physical harm done by positive act of the police, it will succeed if but only if negligence is proved.
+As Lord Reed explains at para 75, policing may sometimes involve unavoidable risk to individuals.
+It may very often involve extremely delicate balancing of choices.
+Crowd control, hostage situations, violent outbreaks of crime and the allocation of scarce resources where there are large numbers of persons with the potential to offend, even at the terrorist level, are simply examples.
+Sometimes decisions may have to be made under extreme pressure; at other times they may remain very difficult notwithstanding time for analysis, and there may be a high level of risk that they turn out to be wrong.
+The question is always not whether, with hindsight, the decision was wrong, but whether in all the circumstances it was reasonable.
+The present case
+I agree that the present case is one of positive act, namely arresting the suspect, which directly caused physical harm.
+It matters not that the suspect was the first to be in physical contact with the claimant given that the collision with her was by him plus two of the policemen.
+I confess that I have pondered hard about the finding of negligence.
+That the suspect might run away was known, but the limited risk that he not only would do so, but also would cannon into a pedestrian if he did, had to be balanced against the duty to effect an arrest promptly.
+Many might regard the decision when to effect the arrest as a marginal one.
+But it is important that appellate courts do not second guess trial judges who have had the opportunity to hear the witnesses in person, as well as to examine the CCTV in the light of the way the case is argued.
+It does not seem to me that even if one were to entertain doubts about how one might oneself have decided the issue, it can be right to displace the finding of the trial judge unless there is error of principle.
+It is impossible to say that the judge was not entitled to attach the significance he did to the fact that Mr Willan had lost sight of the claimant at the moment he moved in.
+In those circumstances I would allow the appeal and restore the finding of the trial judge.
+The case must be remitted to the court of trial for the still outstanding assessment of damages.
diff --git a/UK-Abs/test-data/judgement/uksc-2016-0210.txt b/UK-Abs/test-data/judgement/uksc-2016-0210.txt
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+Miles Buckinghamshire
+Neil Braithwaite
+Alexis Cleveland
+Elaine Diver
+Lesley Lee
+Hugh Mackintosh
+Christopher Close (following the retirement of John Bartlett)
+Representative Members of the scheme
+Janet Forrest
+Malcolm Dick LORD HODGE: (with whom Lady Hale, Lord Wilson, Lord Sumption and Lord Briggs agree) 1.
+This appeal raises a question of interpretation of a clause in a pension scheme trust deed which defines the phrase Retail Prices Index and which allows the trustees of the pension scheme to adopt a replacement of the officially published Retail Prices Index (the RPI). 2.
+The background is the recognised need for private pension schemes to provide some form of indexation of pensions to protect the value of members pensions against price inflation.
+As discussed below, the question is whether the clause allows the pension scheme trustees to adopt an index of price inflation, such as the Consumer Prices Index (the CPI), when the official body responsible for compiling the RPI (now the Office of National Statistics) has not discontinued the RPI, thereby requiring its replacement. 3.
+Barnardos, the well known charity who is the sponsoring employer, argues that the clause empowers the trustees to adopt another index which they consider a suitable measure of price inflation, whether or not the RPI continues to be published.
+Barnardos see the CPI as a more appropriate measure of inflation which will also enable a reduction of the schemes deficit.
+Representatives of the members of the scheme, who are concerned that the adoption of the CPI as the index would over time reduce the benefits which they receive from the scheme, argue that the clause does not empower the trustees to depart from the RPI for the purposes of indexation if the RPI continues to be published.
+The trustees adopt a neutral stance on the question.
+The Barnardo Staff Pension Scheme 4.
+In 1984 Barnardos adopted a staff pension scheme which took effect from 1978.
+In 1991 Barnardos adopted a new pension scheme which took effect from 1 April 1988 and completely superseded the 1978 scheme.
+The 1988 rules have subsequently been amended and adopted with effect from 2001, 2004 and 2007.
+But the relevant provisions of the current rules are in substance the same as those in the 1988 rules, to which counsel referred in their submissions.
+I therefore set out the relevant provisions from the 1988 rules. 5.
+Rule 7 of the scheme gave members a pension of 1/60th of their final pensionable earnings for each complete year of pensionable service.
+Rule 30 provided for pensions in the course of payment to be increased by the prescribed rate.
+Rule 30.1.3 provided: For the purpose of this rule 30 the prescribed rate means an increase at the rate of the lesser of: (a) 5%, and (b) the percentage rise in the Retail Prices Index (if any) over the year ending on the previous 31 December. 6.
+Rule 53, which contains a definition of Retail Prices Index lies at the heart of the dispute.
+An important part of the argument concerns the relationship between the first and second sentences of the definition.
+In order to assist comprehension I present the definition in a disaggregated manner, adding (i) and (ii) before each sentence, although the text of the definition is simply an undifferentiated paragraph, and highlighting in italics the critical part of the definition.
+The rule 53 definition (the Definition) is as follows: Retail Prices Index (i) means the General Index of Retail Prices published by the Department of Employment or any replacement adopted by the Trustees without prejudicing Approval. (ii) Where an amount is to be increased in line with the Retail Prices Index over a period, the increase as a percentage of the original amount will be equal to the percentage increase between the figures in the Retail Prices Index published immediately prior to dates when the period began and ended, with an appropriate restatement of the later figure if the Retail Prices Index has been replaced or re based during the period. 7.
+The Appendix to the Rules of the 1988 rules contains a summary of the rules by which the Commissioners of Inland Revenue (the CIR) then imposed limits on the benefits which a private pension scheme could confer if it were to obtain the approval to which I refer in para 8 below.
+The basic limit for a pension of a member who retired at or before the normal retirement date was 1/60th of the final remuneration for each year of service.
+In several places in the Appendix the text referred to the indexation of benefits in line with RPI.
+Thus, for example, in para 6 it was stated that the maximum pension may be increased whilst in payment at 3% per year compound or (if greater) in line with RPI.
+In para 10 the Appendix defined the phrase in these terms: in line with RPI over a period means in proportion to increases between figures in the General Index of Retail Prices published by the Department of Employment (or a replacement of that Index not prejudicing Approval), immediately prior to the dates when the period began and ended with appropriate restatement of the later figure if the Index has been replaced or re based during the period. 8.
+The reference to Approval in the Rules and in the Appendix was a reference to the discretionary approval of the scheme by the CIR as an exempt approved scheme under Chapter 1 of Part XIV of the Income and Corporation Taxes Act 1988.
+The definitions of Tax Approval in the Rules and of Approval in the Appendix were to this effect. 9.
+Lewison LJ in the Court of Appeal (para 6) neatly summarised the principal question in the appeal in this way: The critical words in the definition of the RPI are or any replacement adopted by the Trustees without prejudicing Approval.
+Does the definition mean: the RPI or any index that replaces the RPI and is (i) adopted by the trustees; or (ii) trustees as a replacement for the RPI?
+the RPI or any index that is adopted by the
+The first meaning involves a two stage process by which the RPI is replaced by an official body responsible for its publication and the trustees then adopt the replacement or one of several indices produced as replacements.
+The second meaning, which Barnardos advances, involves a single step and would allow the trustees to choose another index as a replacement of the RPI, whether or not the RPI continued to be published.
+The decisions of the courts and the appellants challenge
+The trustees of the pension scheme sought a ruling on the meaning of the Definition by a claim under Part 8 of the Civil Procedure Rules.
+In a judgment ([2015] EWHC 2200 (Ch); [2015] Pens LR 501) Warren J held that, on a proper construction, the Definition did not empower the trustees to adopt an index other than the RPI unless the RPI had been discontinued as an officially published index and replaced.
+The Court of Appeal by majority (Lewison and McFarlane LJJ, Vos LJ dissenting) dismissed Barnardos appeal.
+Barnardos sought permission to appeal.
+This court gave permission to appeal on the understanding that there might be clauses in many pension schemes which contained similar wording.
+But it is not clear whether that is so.
+Mr Brian Green QC presented the case on behalf of Barnardos.
+I mean no disrespect to his elegant submissions if I summarise them briefly.
+First, he explained that the scheme had been subject to the CIRs discretionary approval.
+He referred to the CIR guidance known as IR 12 (1979) which set out the limits on the benefits which the CIR allowed.
+The arrangement for CIR approval was superseded by the Finance Act 2004 but the requirement for that approval explained the repeated reference in the scheme, including in the definition of RPI in rule 53, to Approval.
+Mr Green submitted that the first sentence of the Definition fell to be construed as RPI or any alternative adopted by the trustees.
+The phrase, he submitted, contained pointers which supported his interpretation.
+It was not disputed that the trustees had to exercise discretion in deciding to adopt a replacement.
+There might be no room for the exercise of discretion if the official body which published the RPI replaced it with another index.
+Similarly, the requirement that the adopted replacement did not prejudice CIR approval pointed to a circumstance where there was a possibility that the trustees choice of replacement might not receive CIR approval.
+That eventuality was very unlikely if the clause operated only when the RPI was replaced by another official index.
+He also submitted that it was inherently improbable in 1991 that the Government would discontinue the RPI.
+While recognising that the second sentence of the Definition also referred to replaced, he submitted that that sentence was of no relevance to a proper understanding of the first sentence as it referred to the phrase, in line with the Retail Prices Index, which did not appear in the Rules but only in the Appendix.
+Replacement in sentence 1 did not necessarily have the same meaning as replaced in sentence 2.
+Discussion
+The construction of pension schemes
+In the trilogy of cases, Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900, Arnold v Britton [2015] AC 1619 and Wood v Capita Insurance Services Ltd [2017] AC 1173, this court has given guidance on the general approach to the construction of contracts and other instruments, drawing on modern case law of the House of Lords since Prenn v Simmonds [1971] 1 WLR 1381.
+That guidance, which the parties did not contest in this appeal, does not need to be repeated.
+In deciding which interpretative tools will best assist in ascertaining the meaning of an instrument, and the weight to be given to each of the relevant interpretative tools, the court must have regard to the nature and circumstances of the particular instrument.
+A pension scheme, such as the one in issue on this appeal, has several distinctive characteristics which are relevant to the courts selection of the appropriate interpretative tools.
+First, it is a formal legal document which has been prepared by skilled and specialist legal draftsmen.
+Secondly, unlike many commercial contracts, it is not the product of commercial negotiation between parties who may have conflicting interests and who may conclude their agreement under considerable pressure of time, leaving loose ends to be sorted out in future.
+Thirdly, it is an instrument which is designed to operate in the long term, defining peoples rights long after the economic and other circumstances, which existed at the time when it was signed, may have ceased to exist.
+Fourthly, the scheme confers important rights on parties, the members of the pension scheme, who were not parties to the instrument and who may have joined the scheme many years after it was initiated.
+Fifthly, members of a pension scheme may not have easy access to expert legal advice or be able readily to ascertain the circumstances which existed when the scheme was established.
+Judges have recognised that these characteristics make it appropriate for the court to give weight to textual analysis, by concentrating on the words which the draftsman has chosen to use and by attaching less weight to the background factual matrix than might be appropriate in certain commercial contracts: Spooner v British Telecommunications plc [2000] Pens LR 65, Jonathan Parker J at paras 75 76; BESTrustees v Stuart [2001] Pens LR 283, Neuberger J at para 33; Safeway Ltd v Newton [2018] Pens LR 2, Lord Briggs, giving the judgment of the Court of Appeal, at paras 21 23.
+In Safeway, Lord Briggs stated (para 22): the Deed exists primarily for the benefit of non parties, that is the employees upon whom pension rights are conferred whether as members or potential members of the Scheme, and upon members of their families (for example in the event of their death).
+It is therefore a context which is inherently antipathetic to the recognition, by way of departure from plain language, of some common understanding between the principal employer and the trustee, or common dictionary which they may have employed, or even some widespread practice within the pension industry which might illuminate, or give some strained meaning to, the words used.
+I agree with that approach.
+In this context I do not think that the court is assisted by assertions as to whether or not the pensions industry in 1991 could have foreseen or did foresee the criticisms of the suitability of the RPI, which later emerged in the public domain, or then thought that it was or was not likely that the RPI would be superseded.
+The emphasis on textual analysis as an interpretative tool does not derogate from the need both to avoid undue technicality and to have regard to the practical consequences of any construction.
+Such an analysis does not involve literalism but includes a purposive construction when that is appropriate.
+As Millett J stated in In re Courage Groups Pension Schemes [1987] 1 WLR 495, 505 there are no special rules of construction applicable to a pension scheme but its provisions should wherever possible be construed to give reasonable and practical effect to the scheme.
+Instead, the focus on textual analysis operates as a constraint on the contribution which background factual circumstances, which existed at the time when the scheme was entered into but which would not readily be accessible to its members as time passed, can make to the construction of the scheme.
+It is nevertheless relevant to the construction of pension schemes that they are drafted to comply with tax rules so as to preserve the considerable benefits which the United Kingdoms tax regime confers on such schemes.
+They must be construed against their fiscal backgrounds: National Grid Co plc v Mayes [2001] 1 WLR 864, para 18 per Lord Hoffmann; British Airways Pension Trustees Ltd v British Airways Plc [2002] Pens LR 247, Arden LJ at para 30.
+In this case, the CIR guidance on approval of schemes, which is contained in the practice note on occupational pension schemes (IR 12 (1979)), forms part of the relevant background.
+In the footnote to para 6.14 of that guidance, the CIR stated: Increases in the cost of living may be measured by the index of retail prices published by the Department of Employment or by any other suitable index agreed for the particular scheme by the Superannuation Funds Office.
+It appears therefore that the CIR, in giving discretionary approval to a scheme, would not have objected to a scheme which empowered its trustees to substitute an appropriate index for the RPI.
+This is relevant background as it means that there was no CIR constraint which might influence the construction of the words in dispute.
+This contrasts with the National Grid case in which the fiscal background was directly relevant to the interpretation of a phrase in the scheme.
+The tax regime did not allow an employer to be paid part of a surplus of scheme funds, which had already received tax exemptions when payments were made into the scheme.
+But the tax regime did not prohibit the release of a debt due by the employer to the scheme which had not had those tax advantages.
+This assisted the House of Lords to construe narrowly a provision in the scheme which prohibited the making of scheme moneys payable to the employers.
+In the present case, as Lewison LJ stated at para 32 of his judgment, the draftsman of the scheme did not track the wording of the Revenue guidance in the Definition but chose different language.
+The scheme could have empowered the trustees to select an index as an alternative to the RPI.
+The question is whether it did so.
+Finally, a focus on textual analysis in the context of the deed containing the scheme must not prevent the court from being alive to the possibility that the draftsman has made a mistake in the use of language or grammar which can be corrected by construction, as occurred in Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101, where the court can clearly identify both the mistake and the nature of the correction.
+The construction of the Definition
+I am persuaded that the judge and the majority of the Court of Appeal were right to conclude that the correct interpretation of the first sentence of the Definition is the first of the options to which Lewison LJ referred and which I have repeated in para 9 above, namely, that the RPI means the RPI or any index that replaces the RPI and is adopted by the trustees.
+I reach this view for the following eight reasons.
+First, the draftsman has chosen to use the word replacement which does not naturally suggest the selection of an alternative to an option which remains available.
+It is, nonetheless, capable of bearing that meaning and one must look to the context for guidance.
+Secondly, the word order and grammatical construction of the phrase a replacement adopted by the trustees suggest that the RPI must first be replaced and that the trustees adopt the replacement.
+The word order suggests a sequence of events rather than the single event of an index being adopted by the trustees as a replacement.
+Thirdly, the existence of a discretion on the part of the trustees and the requirement that the adoption should not prejudice the CIRs approval do not militate against this view.
+In paras 15 20 of his judgment Lewison LJ usefully sets out the history of official cost of living indices in the United Kingdom which he derived from a report, UK Consumer Price Statistics: A Review, by Mr Paul Johnson, the Director of the Institute for Fiscal Studies, which was prepared for the UK Statistics Authority in 2015.
+There is no benefit in repeating that account in this judgment.
+It suffices to say that there were several additional official price indices in 1991 when the 1988 rules were prepared, namely the state pensioner indices introduced in 1969, the Tax and Prices Index introduced in 1979 and the Rossi Index, which was introduced in 1981 and was used to uprate income related state benefits.
+In 1981 the UK started to issue index linked gilts, using the RPI.
+A cautious draftsman may well have chosen to provide for the eventuality of the RPI being replaced by more than one official index.
+As a result the trustees would be required to exercise discretion in the selection of the appropriate replacement and the CIR themselves would have an interest in making sure that the chosen index was suitable when considering whether to approve the scheme.
+Fourthly, it is trite both that a provision in a pension scheme or other formal document should be considered in the context of the document as a whole and that one would in principle expect words and phrases to be used consistently in a carefully drafted document, absent a reason for giving them different meanings.
+In the second sentence of the Definition the draftsman has defined the phrase in line with the Retail Prices Index.
+That sentence speaks of the RPI having been replaced or re based.
+The re basing of the RPI involves the resetting of the starting point for measuring changes in prices to 100.
+The authority responsible for publication of the RPI has re based the index from time to time.
+It is not suggested that anyone other than the official body responsible for the index could re base it.
+Other things being equal, I would expect that the draftsman of the phrase replaced or re based envisaged the same official body either replacing or re basing the index.
+This is supported by the definition of the same phrase (albeit referring to RPI rather than Retail Prices Index) in the Appendix, which I have set out in para 7 above.
+It is clear that the definition in the Appendix is referring to the replacement or re basing of the RPI by an official body responsible for the production of that index.
+In the late 1980s the Central Statistical Office (CSO) took responsibility for the RPI and the CSO became part of the Office for National Statistics in 1996.
+Consistency within the scheme as a whole, and indeed within the Definition itself would suggest that it is that official body and not the trustees who are to effect the replacement in the first sentence of the Definition.
+Mr Green submitted that the court in construing the first sentence of the Definition should not attach any significant weight to the second sentence because it was defining an expression used only in the Appendix and it duplicated the definition in the Appendix in any event.
+I do not agree.
+Clause 3 of the Deed containing the rules of the scheme stated that the Scheme will be governed by the Rules (including the Appendix) contained in this deed, thereby clarifying that the Appendix was to be seen as part of the rules.
+Further, rule 32, which prohibited the payment of benefits in excess of the CIR limits, referred to the Appendix as containing a summary of those limits.
+The rules and the Appendix are intimately related.
+While it is true that there was no need to include the second sentence of the Definition because of the definition of the same term in para 10 of the Appendix, its inclusion cannot be viewed as a mistake.
+The second sentence forms part of the Definition and cannot be airbrushed out of it simply because there has been duplication.
+Thus in construing the scheme as a whole the court must have regard to the use of the words replacement and replaced or re based in the same definitional rule and also the use of the latter words in the parallel definition in para 10 of the Appendix.
+Fifthly, I do not derive any assistance from the CIR guidance in IR 12, because (as I have discussed in para 17 above) the draftsman has not chosen to use wording similar to that guidance in the Definition.
+If there were any inconsistency between the terms of IR 12 on the one hand and the rules and Appendix of the Scheme on the other, the latter must prevail.
+It may be that the draftsman thought that IR 12 was addressing the initial choice of index when a scheme was first established rather than an alteration of an index during the currency of the scheme.
+But whether or not that is a correct inference, it cannot be doubted that he or she chose to use language in both the Definition and the Appendix which differed from IR 12.
+Sixthly, I do not derive any real assistance from the superseded 1978 scheme, in which the term Index was defined in the introductory interpretation clause as: the Governments Index of Retail Prices or any other official cost of living index published by authority in place of or in substitution for that Index.
+This definition can provide little assistance because the 1988 rules involved a wholesale re drafting of the earlier rules in which the draftsman may or may not have had regard to the wording of the earlier rules, with the result that there is no basis for assuming that the draftsmans use of different words points to an intention to achieve a different meaning.
+In any event, I agree with Lewison LJ in para 23 of his judgment that the nature of a pension scheme, which may have members who have no knowledge of the prior rules, makes it unprofitable to delve into the archaeology of the rules in this case.
+Seventhly, a provision which provided for the circumstance of the official replacement of a cost of living index does not lack a rational purpose.
+The United Kingdom Government had changed its official index in 1946 and again in 1956 and, as I have said, had published additional indices by 1991 when the 1988 rules were drafted.
+Whether or not it was likely that the Government might dispense with and replace the RPI, a cautious draftsman of a long term contract or trust such as the scheme might well provide for such an eventuality.
+Commercial common sense therefore does not point against the interpretation to which a primarily textual analysis of the words points.
+While, since 1991, the RPI has fallen from favour as an appropriate measure of the cost of living, it is not appropriate to use hindsight of such post execution events to assess whether a provision makes good commercial sense.
+Eighthly, while the requirement of indexation by reference to the RPI imposes obligations on Barnardos and contributes to the pension deficit at a time when many see the CPI as a more reliable index for the cost of living, the court must construe the scheme without any preconceptions as to whether a construction should favour the sponsoring employer or the members: British Airways Pension Trustees (above), Arden LJ at para 31.
+The sponsoring employers gain may be the members loss and vice versa.
+Finally, I must address an argument which Vos LJ favoured and which contributed to the reasoning in his dissent.
+That argument is that the provision would be inconveniently inflexible if the trustees were not able to switch to another index in the eventuality that the RPI ceased to be a suitable index for measuring the cost of living for pensioners but was not abolished because it was retained in existence for other purposes.
+The proviso to rule 46 of the scheme prevents Barnardos from altering the scheme to the prejudice of any pension or annuity then payable under the scheme or any benefit already secured.
+Thus, it was argued, common sense required the trustees to be vested with a power to change the index if the RPI ceased properly to reflect inflation in the cost of living.
+But, while it may have been desirable to have that flexibility, the draftsman appears to have put his or her faith in the suitability of the officially produced index and not to have foreseen the circumstances in which the RPI ceased to be seen as an appropriate index for the cost of living.
+Only by relying on hindsight can weight be given to this consideration; and that is not legitimate.
+For these reasons, which are essentially the same as those which Lewison LJ gave in his impressive judgment, the appeal must fail.
+As a result, it is not necessary to address the cross appeal on the subsisting rights provisions contained in sections 67 and 67A 67I of the Pensions Act 1995.
+Conclusion
+I would dismiss the appeal.
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+This case, in which a professional gambler sues a casino for winnings at Punto Banco Baccarat, raises questions about (1) the meaning of the concept of cheating at gambling, (2) the relevance to it of dishonesty, and (3) the proper test for dishonesty if such is an essential element of cheating.
+The facts
+Over two days in August 2012 Mr Ivey, the claimant in this case, deployed a highly specialist technique called edge sorting which had the effect of greatly improving his chances of winning.
+He had the help of another professional gambler, Cheung Yin Sun (Ms Sun).
+First they set up the conditions which enabled him to win.
+Then, later that evening and the following day, over the course of some hours, he won approximately 7.7m.
+The casino declined to pay, taking the view that what he had done amounted to cheating.
+His case is that it was not cheating, but deployment of a perfectly legitimate advantage.
+What happened is not in dispute.
+It was set out with admirable clarity by Mitting J and very little is necessary by way of addition or subtraction.
+What follows in this section is almost entirely in his words.
+Punto Banco is a variant of Baccarat.
+It is not normally, to any extent, a game of skill.
+Six or eight decks or, in English nomenclature, packs of 52 cards are dealt from a shoe, face down by a croupier.
+Because the cards are delivered one by one from the shoe, she has only to extract them; no deviation is permitted in their sequence.
+She places them face down in two positions on the table in front of her, marked player, the Punto in the name, and Banker, Banco.
+Those descriptions label the positions marked on the table; there need be no person as player and ordinarily there is not.
+She slides the cards from the shoe, face down, one card to player, one to banker; a second to player and a second to banker.
+In prescribed circumstances she must deal one further card, either to player or to banker or to both, but this possibility is irrelevant to what occurred.
+The basic object of the game is to achieve, on one of the two positions, a combination of two or three cards which, when added together, is nearer to 9 in total than the combination on the other position.
+Aces to 9 count at face value, 10 to King inclusive count as nothing.
+Any pair or trio of cards adding up to more than 10 requires 10 to be deducted before arriving at the counting total.
+Thus 4 plus 5 equals 9, but 6 plus 5 (which equals 11) counts as only 1.
+Punters (of whom there need only be one) play the house.
+They bet before any card is dealt and can bet on either the player or banker position.
+The cards are revealed by the croupier after a full hand (or coup), usually of four cards, two to each position, has been dealt.
+Winning bets are paid at evens on player, and at 19 to 20 on banker.
+It is possible to bet on a tie.
+In the event of a tie, all bets on player or banker are annulled; in other words, the punter keeps his stake and the only bet paid out on is the tie at odds set by the casino of either eight to one or, at Crockfords, nine to one.
+It is possible to place other types of bet, but this case does not concern them and they need not be described.
+The different odds mean that the casino, or house, enjoys a small advantage, taken over all the play.
+That is standard and well known to all; casinos publish the percentage house edge which they operate.
+In Punto Banco at Crockfords it was 1.24% if player wins and 1.06% if banker wins.
+A pack of 52 playing cards is manufactured so as to present a uniform appearance on the back and a unique appearance on the face.
+The backs of some cards are, however, not exactly uniform.
+The backs of many packs of cards for social use have an obvious top and bottom: for example the manufacturers name may be printed once only, or the pattern may have an obviously right way up and an upside down.
+In casino games in which the orientation of the back of the card may matter, cards are used which are in principle indistinguishable whichever way round they are when presented in a shoe.
+Cards with no pattern and no margin at the edge present no problem; they are indistinguishable.
+However, many cards used in casinos are patterned.
+If the pattern is precisely symmetrical the effect is the same as if the card is plain; the back of one card is indistinguishable from any other.
+But if the pattern is not precisely symmetrical it may be possible to distinguish between cards by examining the backs.
+Edge sorting becomes possible when the manufacturing process causes tiny differences to appear on the edges of the cards so that, for example, the edge of one long side is marginally different from the edge of the other.
+Some cards printed by Angel Co Ltd for the Genting Group (which owns Crockfords) have this characteristic, apparently within the narrow tolerances specified for manufacture.
+The pattern is not precisely symmetrical on the back of the cards.
+The machine which cuts the card leaves very slightly more of the pattern, a white circle broken by two curved lines, visible on one long edge than on the other.
+The difference is sub millimetric, but the pattern is, to that very limited extent, closer to one long edge of the card than it is to the other.
+Before a card is dealt from a shoe, it sits face down at the bottom of the shoe, displaying one of its two long edges.
+It is possible for a sharp eyed person sitting close to the shoe to see which long edge it is.
+Being able thus to see which long edge is displayed is by itself of no help to the gambler.
+All the cards have the same tiny difference between their right and left long edges, so knowing which edge is displayed tells the gambler nothing about the value of the next card in the shoe.
+The information becomes significant only if things can be so arranged that the cards which the gambler is most interested in are all presented with long edge type A facing the table, whilst all the less interesting cards present long edge type B. Then the gambler knows which kind of card is next out of the shoe.
+In Punto Banco cards with a face value of 7, 8 and 9 are high value cards.
+If one such card is dealt to player or to banker, it will give that position a better chance of winning than the other.
+Thus a punter who knows that when the first card dealt (always to the player position) is a 7, 8 or 9, he will know that it is more likely than not that player will win.
+If he knows that the card is not a 7, 8 or 9, he will know that it is more likely than not that banker will win.
+Such knowledge, it is agreed, will give the punter a long term edge of about 6.5% over the house if played perfectly accurately.
+What is therefore necessary for edge sorting to work is for the cards in the shoe to be sorted so that all the 7s, 8s and 9s display edge type A, whilst the rest display edge type B. That means rotating the high value cards so that they display edge type A.
+If the punter were to touch the cards, the invariable practice at most casinos, including at Crockfords, would be that those cards would not be used again.
+The only person who touches the cards is the croupier.
+So what had to happen was to get the cards sorted (ie differentially rotated) by type A and type B by the croupier and then to get them re used in the next shoe, now distinctively sorted.
+For edge sorting to work at Crockfords it is therefore essential that the croupier is persuaded to rotate the relevant cards without her realising why she is being asked to do so.
+Casinos routinely play on quirky and superstitious behaviour by punters.
+It is in the casinos interests that punters should believe, erroneously, that a lucky charm or practice will improve their chance of winning and so modify or defeat the house edge.
+Consequently a wide variety of requests by punters, particularly those willing to wager large sums on games which they must, if they play long enough, lose in the long run, are accommodated by casinos without demur or surprise.
+All of the games of Punto Banco played by the claimant and Ms Sun on 20 and 21 August 2012 were captured on CCTV, mostly with contemporaneous audio recording as well.
+The moment at which they persuaded the croupier, Kathy Yau, to rotate the cards was at 9 pm on 20 August.
+The video shows it and the words spoken have been transcribed.
+Before then, the claimant and Ms Sun had played part of four shoes, the first two plain backed, and the second two Angel cards but with no asymmetry on the back.
+The claimant is a high stakes gambler.
+He began, by his standards, modestly: bets placed on those four shoes ranged from 4,000 to 75,000 per coup.
+He was losing.
+At 8.56 pm he requested a new shoe of cards.
+A new shoe was produced.
+The cards were blue Angel cards with the rounded pattern described on the back.
+At 8.57 the claimant asked Jeremy Hillier, the senior croupier overseeing the game: If I win, can I say I want the same cards again? to which Mr Hillier replied he could, because [he was] not bending them.
+The claimant had in fact avoided touching the cards from either the first or second shoe onwards.
+The croupier, Kathy Yau, then put the cards face down in blocks on the table to make the cut, as is conventional.
+She cut the cards so as to exclude about one deck from play.
+The claimant asked about the cut: Why so big? Ms Sun said: They dont cut the seven cards, a reference to the traditional cut of 7 cards from the end.
+Ms Yau asked if he wanted her to cut 7 cards, to which he replied yes, he wanted to play 90 hands, slightly more than the maximum likely to be possible with an eight deck shoe with a seven card cut.
+She complied, after checking with the supervisor on duty in the room.
+That had the effect of maximising the number of coups which would be possible with those packs, and of exposing the maximum number of cards to the sorting (rotation) process.
+Ms Yau then dealt the first coup.
+After the bet was made, and all the cards then dealt, the next stage was for the croupier to turn the cards face up to reveal whether Player or Banker had won.
+Ms Sun then asked Ms Yau in Cantonese to do it, in other words to turn the cards over so that the face showed, slowly.
+Ms Yau said yes.
+Ms Sun then asked her again in Cantonese to turn the cards in a particular and differential way as they were being exposed and before they were put on the pile of used cards.
+If I say it is good, you turn it this way, good, yes? Um, no good. (A slightly different sounding um).
+Ms Yau did not immediately understand what was required.
+She asked, so you want me to leave it? To which Ms Sun replied, change, yeah, yeah, change luck.
+Ms Yau: what do you mean? Ms Sun gestured how to turn it.
+Turn it this way.
+Ms Yau: what, just open it? Yeah.
+Ms Sun: um, signifying good in Cantonese.
+The claimant then chipped in, yeah, change the luck, thats good.
+Anything to change the luck, it is okay with me.
+Ms Sun reiterated her request in Cantonese, If I say it is not good, you turn it this way.
+If it is good, turn it this way, okay? To which Ms Yau said okay.
+When she turned over the cards of the second coup, Ms Sun said of four of them, good, and of one, not good, in Cantonese.
+Ms Yau did as requested.
+What she was being asked to do, and did, was to turn the cards which Ms Sun called as good end to end, and the not good cards side to side.
+In consequence, the long edge of the not good card was oriented in a different way from the long edge of the good cards.
+The judge found that she had been wholly ignorant of the significance of what she was doing, card by card, at the call of Ms Sun.
+This procedure was followed for each of the next 79 coups dealt from this shoe.
+The maximum amount staked by the claimant on the coups towards the end of the shoe reached 100,000.
+Self evidently, at no time during the play of this shoe did he derive any advantage from the rotation of the cards requested by Ms Sun because that rotation occurred at the end, not at the beginning, of each coup.
+This was all preparation.
+At 10.03 pm, when the shoe was exhausted, the claimant said that he had won with that deck (ie shoe), and that he would keep it.
+The senior croupier, who had brought in a new collection of cards, was told by the claimant he did not want them, as he had won 40,000 with that deck; that was agreed to.
+The original cards were reused.
+The defendant has not been able to calculate retrospectively whether that assertion of winnings to that point was true.
+Before the shoe was reused it had to be reshuffled.
+The claimant had earlier asked Ms Yaus predecessor as croupier for a shuffling machine to shuffle the cards.
+The cards were reshuffled by a machine.
+For a punter using the edge sorting technique this ensured that the shuffle would be effected without rotating any of the cards unless the croupier did so before they were put into the machine.
+Ms Yau did not do so.
+Manual shuffling would have carried a much higher risk of re rotation as it was done.
+Play with the reshuffled shoe recommenced at 10.12 pm and continued until Ms Yau went for a half hour break at 10.31 pm.
+The claimant did not play during her break but resumed when she returned until 3.57 am on 21 August.
+Ms Yau was the croupier throughout.
+The claimants stake increased to 95,000 and then to 149,000 per coup.
+He won approximately 2m.
+The accuracy of his bets on player increased sharply.
+In the first two shoes in which Angel cards were used, those without an asymmetric pattern on the back, he placed respectively 11 bets and then 1 bet on player and a 7, 8 or 9 only occurred once in that 12 times.
+On the shoe in which the edge sorting was done in the manner described, he placed 23 bets on player of which eight were 7s, 8s or 9s.
+On the succeeding shoes, those at least that were completed on that night, shoes four to eight, the record was as follows.
+Shoe four, 23 accurate bets out of 27; shoe five, 22 accurate bets out of 25; shoe six, 20 accurate bets out of 26; shoe 7, 23 accurate bets out of 30; shoe 8, 17 accurate bets out of 19.
+A similar but slightly less pronounced pattern occurred on the following day.
+At the end of play on the early morning of the 21st the claimant asked if he could keep the same shoe, which he referred to as a deck, if he returned on the following day.
+He was told he could.
+Ms Yau returned to duty at 2 pm on 21 August.
+The claimant resumed play with the same cards at 3 pm and played until 6.41 pm.
+His average stake was never less than 149,000.
+For the last three shoes it was 150,000, the maximum that he was allowed to bet each time.
+In the middle of play of the last shoe, the senior croupier told the claimant that the shoe would be replaced when it was exhausted.
+When it was, the claimant and Ms Sun left.
+By then he had won just over 7.7m.
+Crockfords practice after a large win such as this is to conduct an ex post facto investigation to work out how it occurred.
+After quite lengthy review of the CCTV footage and examination of the cards, the investigators succeeded in spotting what had been done.
+Nobody at Crockfords had heard of edge sorting before.
+Nine days after the play, on 30 August, the claimant spoke to Mr Pearce, Managing Director of the London casinos of Genting UK, who told him that Crockfords would not be paying his winnings because the game had been compromised.
+The claimant said he had not touched the cards, but did not state that which at the trial he freely admitted, that he had used edge sorting.
+Arrangements were made to refund his deposited stake, 1m, on 31 August.
+The judge found that Mr Ivey gave factually frank and truthful evidence of what he had done.
+The finding was that he was a professional gambler who described himself as an advantage player, that is one who, by a variety of techniques, sets out to reverse the house edge and to play at odds which favour him.
+The judge found that he does so by means that are, in his opinion, lawful.
+He is jealous of his reputation and is adamant that what he does is not cheating.
+He described what he did, with Ms Sun, as legitimate gamesmanship.
+The judge accepted that he was genuinely convinced that what he did was not cheating.
+But the question which matters is not whether Mr Ivey thought of it as cheating but whether in fact and in law it was.
+The judge concluded that it was, and so did the majority of the Court of Appeal.
+Were they right or wrong?
+Gaming and the law
+Gaming has been the subject of statutory rules since at least the time of the Restoration.
+They have addressed, inter alia, both (1) unfair play and (2) the recoverability of winnings by civil action.
+Very recently, the Gambling Act 2005 has comprehensively revised the statutory framework for gaming.
+In outline, it makes it lawful but subject to detailed licensing.
+The Gaming Act of 1664 (16 Car 2 c7) addressed what it identified as the social ill of excessive gambling, when conducted not for innocent and moderate recreation but as a means of trade or making a living.
+Even in times of relative debauchery, the Act castigated the effect of such gaming on the youth of the day, whether of the nobility and gentry or otherwise.
+By section 3 it made irrecoverable at law any winnings over the then enormous sum of 100.
+And by section 2 it imposed a forfeit of three times the winnings on anyone who won by (in effect) wrongful means.
+The forfeit was recoverable by civil action at the suit either of the loser or, if he did not sue, by anyone else.
+Half the forfeit went to the loser, and half to the Crown.
+The misbehaviours which gave rise to such forfeit were defined as any fraud, shift, cousenage, circumvention, deceit or unlawful device, or ill practice whatsoever, and the activities covered included not only cards and dice, but also tennis and foot races, as well as horse racing, skittles, bowls and many other games.
+The forfeit was incurred not only by winnings by wagering, but also by prize winning, if the ill practice was demonstrated.
+By the time of Queen Anne, the attitude to gambling had hardened.
+The Gaming Act 1710 (9 Ann c 14) repeated in section 5 the list of misbehaviour attracting a forfeit (now five times the winnings), and such was now recognised as a criminal offence attracting corporal punishment.
+The same Act, by section 2, enabled anyone who lost more than 10 at games, however fair, to recover it by civil action, together with a forfeit of three times the loss, half for the loser and half for the poor of the parish.
+By section 1 it made void any security given for payment of gaming debts.
+The Gaming Act 1845 (8 & 9 Vict c 109) abolished the forfeits, but (by section 18) made general the rule that gaming or wagering contracts were unenforceable in law.
+Section 17 dealt with malpractice.
+It referred to fraud or unlawful device or ill practice and made winning by such means a criminal offence, by way of deeming it to be the recognised offence of obtaining by false pretences with intent to cheat or defraud (see section 53 Larceny Act 1827, 7 & 8 Geo 4 c 29).
+Section 17 was headed cheating at play to be punished as obtaining money by false pretences.
+This history is of limited importance, given the enactment of an entirely new regime by the Gambling Act 2005, but it does demonstrate that the law concerned itself from very early times with malpractice at gaming, and that by 1845 a general expression used for it was cheating.
+It is also of note that the malpractice thus dealt with was not confined to deception or fraud, but extended to ill practice.
+Given the origins of that expression in the 1664 Act, relating to foot races, tennis and the like, as well as to gambling, it is not possible to treat ill practice as having been limited by the principle of ejusdem generis to deception or fraud.
+The Gambling Act 2005 reversed, by sections 334 and 335, the rule that gaming contracts are unenforceable.
+The new Gambling Commission is, however, given by section 336 a new power to declare void a bet taken by a licensee if satisfied that the bet was substantially unfair.
+Amongst the factors (not exhaustively defined) which are to be considered when deciding whether a bet was substantially unfair is included the circumstance that either party to the bet either did believe or ought to have believed that an offence of cheating had been or was likely to have been committed in connection with it, although that is by no means the only consideration.
+Supply of insufficient information and the belief of either party that the underlying contest is conducted in contravention of industry rules are two of the other specified relevant circumstances.
+The offence contrary to section 17 of the 1845 Act is replaced by a new offence of cheating at gambling created by section 42.
+Section 42 is in the following terms: 42.
+Cheating (1) A person commits an offence if he cheats at gambling, or (a) (b) does anything for the purpose of enabling or assisting another person to cheat at gambling. (2) For the purposes of subsection (1) it is immaterial whether a person who cheats improves his chances of winning (a) anything, or (b) wins anything. (3) Without prejudice to the generality of subsection (1) cheating at gambling may, in particular, consist of actual or attempted deception or interference in connection with the process by which gambling is (a) conducted, or (b) or process to which gambling relates. a real or virtual game, race or other event By subsection (4) this offence carries a penalty of up to two years imprisonment on indictment, or 51 weeks on summary conviction.
+Cheating
+It has been common ground throughout this litigation that the (now in principle enforceable) contract for betting into which these parties entered is subject to an implied term that neither of them will cheat.
+It follows that, if what Mr Ivey did was cheating, he is in breach of this implied term and cannot as a result recover his winnings.
+As well as advancing this defence, the casino pleaded that what he did amounted to the offence under section 42, and that in consequence he could not recover the proceeds of his criminal offence.
+Mitting J held that the implied term had been broken, and that it was therefore unnecessary to decide whether or not the statutory offence had been committed.
+The majority of the Court of Appeal dismissed Mr Iveys appeal.
+The reasoning of Arden and Tomlinson LJJ was not identical, but both upheld the judges conclusion that what had been done amounted to cheating.
+Sharp LJ would have allowed the appeal, taking the view that there could not be cheating unless the statutory offence had been committed and that a necessary ingredient of it was dishonesty as defined in R v Ghosh [1982] QB 1053.
+The core submission of Mr Spearman QC for Mr Ivey runs as follows: the test of what is cheating must be the same for the implied term as (a) for section 42; (b) cheating necessarily involves dishonesty; (c) the judge found that Mr Ivey was truthful when he said that he did not consider what he did to be cheating; therefore dishonesty and in particular the second leg of the test established by R v Ghosh had not been demonstrated; (d) it follows that what was done was not cheating, and Mr Ivey ought to have recovered the 7.7m.
+The concept of cheating long pre dates section 42 of the Gambling Act 2005.
+It clearly embraces the kind of malpractice described in the statutes of 1664, 1710 and 1845.
+Section 42 thus adopted a longstanding concept.
+However, there is no reason to doubt that cheating carries the same meaning when considering an implied term not to cheat and when applying section 42 of the Act.
+There will be a difference in standard of proof as between civil and criminal proceedings, but that does not affect the meaning of cheating.
+Section 42 expressly does not exhaustively define cheating, and the elaboration in section 42(3) is explanatory rather than definitive.
+The section leaves open what is and what is not cheating, as is inevitable given the extraordinary range of activities to which the concept may apply.
+Plainly, what is cheating in one form of game may be legitimate competition in another.
+For his second and crucial proposition Mr Spearman relied, as a matter of authority, substantially on R v Scott [1975] AC 819.
+Viscount Dilhorne, with whom the other law lords agreed, referred in the course of his speech to the ancient common law offence of cheating.
+He cited, at p 840, Easts Pleas of the Crown (1803) vol II, pp 816ff for that authors opinion that that offence consisted in: the fraudulent obtaining [of] the property of another by any deceitful and illegal practice or token (short of felony) which affects or may affect the public.
+It is not, however, every species of fraud or dishonesty in transactions between individuals which is the subject matter of a criminal charge at common law; it must be such as affects the public calculated to defraud numbers, to deceive the people in general.
+Says Mr Spearman, this demonstrates that fraud, and thus dishonesty, was an essential element of the common law offence of cheating.
+The same, he contends, must follow for cheating at gambling.
+Mr Scott and his co defendants were in the business of film piracy.
+They bribed employees of commercial cinemas, such as projectionists, to abstract the reels of film overnight so that infringing copies could be made and in due course distributed commercially for profit.
+The charge was not cheating at common law but conspiracy to defraud.
+The substantial issue before the House of Lords was whether conspiracy to defraud required as an essential element that there had been deception, which had not been any part of the strategy employed by the defendants.
+The answer was that deception was one very common form of defrauding, but not the only one.
+Whilst no exhaustive definition of defrauding was attempted, the House held that defrauding also included depriving another, by dishonest means, of something which is his or to which he would or might be entitled but for the fraud.
+In so holding, the House followed its own decision in Welham v Director of Public Prosecutions [1961] AC 103, where it had emphasised that the essence of defrauding was the effect on the victim.
+To the extent that defrauding someone may take the form of depriving him of something which is his, or to which he might otherwise be entitled, it is plain, and wholly unsurprising, that a criminal offence of defrauding must contain in addition an element which demonstrates that the means adopted are illegitimate and wrong.
+Otherwise much perfectly proper business competition would be at risk of being labelled fraud, since such competition frequently involves strategies to divert business from A to B. Hence it is entirely unsurprising that conspiracy to defraud was held to require in addition the proof of dishonest means.
+Dishonesty, in this context, supplies the essential element of illegitimacy and wrongfulness.
+As the citation from East shows, the ancient common law offence of cheating consisted of a particular subset of fraudulently depriving another of property, where the fraud affected the public as a whole.
+This offence was abolished by section 32(1) of the Theft Act 1968, except insofar as it consisted of cheating the Revenue.
+There is no discussion of this abolition in the Eighth Report of the Criminal Law Revision Committee on Theft and Related Offences (1966) (Cmnd 2977), which preceded the Act and recommended most of the terms of the statute including section 32(1), but it is clear that the Committee took the view that whatever was previously covered by other forms of common law cheating would be caught by its newly recommended offences, particularly that of obtaining property by deception under what became section 15 of the Act.
+The Theft Act 1968 used the expression cheat only in one place, in relation to the offence of going equipped created by section 25.
+There, in section 25(1) and (5), it was used in a restrictive sense limited to the offences contrary to section 15. (The references to cheat have since been removed from that section.)
+The common law offence of cheating was referred to in Scott only because a supplementary argument for the defendants was that section 32(1) had impliedly abolished also the offence of conspiracy to defraud, which argument unsurprisingly failed.
+There is no occasion to investigate the accuracy of Easts opinion on the scope of the common law offence of cheating.
+It may well be that it necessarily involved dishonesty, although that expression was not in general use in criminal statutes until the Theft Act 1968 adopted it in preference to fraudulently.
+But to say that dishonesty was a necessary element in an offence of which the gist was obtaining the property of others who may well be strangers, and where the offence would otherwise be likely to be impossibly wide, is of no help in construing the meaning of cheating in the quite separate context of gambling.
+Still less is there any reason to suppose that the framers of the Gambling Act adopted in 2005 an analogy with a common law offence which had largely been abolished nearly 40 years earlier, and when cheat had been used in a different sense in the Theft Act 1968.
+Whilst it makes perfect sense to interpret the concept of cheating in section 42 of the Gambling Act in the light of the meaning given to cheating over many years, it makes none to interpret cheating, as used over those many years, by reference to an expression dishonesty introduced into the criminal law for different purposes long afterwards in 1968.
+In gambling, there is an existing close relationship between the parties, governed by rules and conventions applicable to whichever game is undertaken, and which are crucial to what is cheating and what is not.
+Cheating at gambling need not result in obtaining the property of the other party, as section 42(2) explicitly says.
+Most importantly, whilst the additional element of dishonesty was necessary to the common law offence of cheating, and no doubt still is to the surviving offences of cheating the Revenue and conspiracy to defraud, in order to mark out the illegitimate and wrongful from the legitimate, the expression cheating in the context of games and gambling carries its own inherent stamp of wrongfulness.
+Authority apart, Mr Spearman contended that as a matter of ordinary English, cheating necessarily imports dishonesty.
+This argument is most neatly encapsulated by inversion: honest cheating is indeed, as has been sensibly recognised by those who have addressed the phrase in this litigation, an improbable concept.
+But that is because to speak of honest cheating would be to suggest that some cheating is right, rather than wrong.
+That would indeed be contrary to the natural meaning of the word cheating.
+It does not, however, follow, either (1) that all cheating would ordinarily attract the description dishonest or (2) that anything is added to the legal concept of cheating by an additional legal element of dishonesty.
+Although the great majority of cheating will involve something which the ordinary person (or juror) would describe as dishonest, this is not invariably so.
+When, as it often will, the cheating involves deception of the other party, it will usually be easy to describe what was done as dishonest.
+It is, however, perfectly clear that in ordinary language cheating need not involve deception, and section 42(3) recognises this.
+Section 42(3) does not exhaustively define cheating, but it puts beyond doubt that both deception and interference with the game may amount to it.
+The runner who trips up one of his opponents is unquestionably cheating, but it is doubtful that such misbehaviour would ordinarily attract the epithet dishonest.
+The stable lad who starves the favourite of water for a day and then gives him two buckets of water to drink just before the race, so that he is much slower than normal, is also cheating, but there is no deception unless one manufactures an altogether artificial representation to the world at large that the horse has been prepared to run at his fastest, and by themselves it is by no means clear that these actions would be termed dishonesty.
+Similar questions could no doubt be asked about the taking of performance enhancing drugs, about the overt application of a magnet to a fruit machine, deliberate time wasting in many forms of game, or about upsetting the card table to force a re deal when loss seems unavoidable, never mind sneaking a look at ones opponents cards.
+Conversely, there may be situations in which there is deception of the other player but what is done does not amount to cheating.
+The so called three card trick, much practised upon travellers on Victorian and Edwardian trains especially to and from racecourses, commonly involved a deception of the target traveller by a group of associates pretending to be unconnected to one another.
+The idea was to lure the target into playing the game.
+But once he was ensnared, the game was often played genuinely; the target lost not because of any cheating but because the shuffler of the cards had sufficient speed of hand to deceive the eye: see for example R v Governor of Brixton Prison, Ex p Sjoland and Metzler [1912] 3 KB 568.
+No doubt other exponents of the three card trick had less genuine methods, such as a fourth (concealed) card, which would indeed be cheating.
+Sometimes the game admits of a level of legitimate deception.
+The unorthodox lead or discard at bridge is designed to give the opponent a misleading impression of ones hand, but it is part of the game and not cheating.
+Pretending to be stupid at the poker table, so that ones opponent does not take one seriously, and takes risks which he otherwise might not, may or may not be another example.
+These far from sophisticated examples demonstrate the inevitable truth that there will be room for debate at the fringes as to what does and does not constitute cheating.
+To label an activity advantage play, as Mr Ivey and others did, is of no help at all.
+It asks, rather than answers, the question whether it is legitimate or cheating.
+It would be very unwise to attempt a definition of cheating.
+No doubt its essentials normally involve a deliberate (and not an accidental) act designed to gain an advantage in the play which is objectively improper, given the nature, parameters and rules (formal or informal) of the game under examination.
+The question in the present case, however, does not depend on the near impossible task of formulating a definition of cheating, but on whether cheating necessarily requires dishonesty as one of its legal elements.
+Where it applies as an element of a criminal charge, dishonesty is by no means a defined concept.
+On the contrary, like the elephant, it is characterised more by recognition when encountered than by definition.
+Dishonesty is not a matter of law, but a jury question of fact and standards.
+Except to the limited extent that section 2 of the Theft Act 1968 requires otherwise, judges do not, and must not, attempt to define it: R v Feely [1973] QB 530.
+In this it differs strikingly from the expression fraudulently, which it largely replaced, for the judge did define whether a state of mind, once ascertained as a matter of fact, was or was not fraudulent: R v Williams [1953] 1 QB 660.
+Accordingly, dishonesty cannot be regarded as a concept which would bring to the assessment of behaviour a clarity or certainty which would be lacking if the jury were left to say whether the behaviour under examination amounted to cheating or did not.
+The issue whether what was done amounts to cheating, given the nature and rules of the game concerned, is likewise itself a jury question.
+The judge in the present case applied himself to the question whether there was cheating in exactly this jury manner.
+He directed himself that it is ultimately for the court to decide whether conduct amounted to cheating and that the standard is objective.
+In so directing himself he was right.
+There is no occasion to add to the value judgment whether conduct was cheating a similar, but perhaps not identical, value judgment whether it was dishonest.
+Some might say that all cheating is by definition dishonest.
+In that event, the addition of a legal element of dishonesty would add nothing.
+Others might say that some forms of cheating, such as deliberate interference with the game without deception, are wrong and cheating, but not dishonest.
+In that event, the addition of the legal element of dishonesty would subtract from the essentials of cheating, and legitimise the illegitimate.
+Either way, the addition would unnecessarily complicate the question whether what is proved amounts to cheating.
+The judges conclusion, that Mr Iveys actions amounted to cheating, is unassailable.
+It is an essential element of Punto Banco that the game is one of pure chance, with cards delivered entirely at random and unknowable by the punters or the house.
+What Mr Ivey did was to stage a carefully planned and executed sting.
+The key factor was the arranging of the several packs of cards in the shoe, differentially sorted so that this particular punter did know whether the next card was a high value or low value one.
+If he had surreptitiously gained access to the shoe and re arranged the cards physically himself, no one would begin to doubt that he was cheating.
+He accomplished exactly the same result through the unwitting but directed actions of the croupier, tricking her into thinking that what she did was irrelevant.
+As soon as the decision to change the cards was announced, thus restoring the game to the matter of chance which it is supposed to be, he first covered his tracks by asking for cards to be rotated at random, and then abandoned play.
+It may be that it would not be cheating if a player spotted that some cards had a detectably different back from others, and took advantage of that observation, but Mr Ivey did much more than observe; he took positive steps to fix the deck.
+That, in a game which depends on random delivery of unknown cards, is inevitably cheating.
+That it was clever and skilful, and must have involved remarkably sharp eyes, cannot alter that truth.
+Although the judge did not think it necessary to make a finding on the topic, and it is unnecessary to the resolution of this appeal, it would also seem that the facts which he found amounted in any event to a deception of the croupier.
+Certainly, the judge found (para 40) that pretending to be superstitious did not by itself cross the line from legitimate play to cheating, comparing it to the skilled poker player who pretends to be a fool.
+He also found, contrary to one of Crockfords submissions, that what occurred did not amount to such deception as altogether to negate the existence of any contract for the game.
+But that was not a finding that there was no deception at all, and on the facts found there clearly was deception of the croupier into doing something which appeared innocuous or irrelevant, but was in fact highly significant and enabled Mr Ivey to win when he should not have done.
+If, therefore, there were indeed (and contrary to the conclusion reached above) a necessary legal element of dishonesty in cheating, such a deception would be prima facie dishonest, unless it is prevented from being so by necessity to satisfy the second leg of the test in R v Ghosh.
+Dishonesty
+Dishonesty has been adopted since the Theft Act 1968 in the definition of some, but not all, acquisitive criminal offences.
+Forgery, for example, is defined without reference to dishonesty, but rather by the yardstick of the intention of the forger that his false document should be accepted as genuine and acted upon to the prejudice of someone else (Forgery and Counterfeiting Act 1981, section 1), whilst the Fraud Act 2006 retains dishonesty as an element of several forms of fraud (see sections 2, 3, 4 and 11).
+As recorded at para 48 above, dishonesty is itself primarily a jury concept, characterised by recognition rather than by definition.
+Most of the Theft Act 1968 offences required dishonesty without any elaboration of its meaning: section 15 (dishonestly obtaining property by deception) was a prime example and the Fraud Act 2006, which replaces this and other Theft Act offences, adopts the same form.
+There are in section 2 of the Theft Act 1968 limited rules relating to when appropriation is not to be regarded as dishonest (claim of right, belief in consent of owner, belief that owner cannot be found) and a specific provision that it may be dishonest despite a willingness to pay for the goods, but these were designed to reflect existing rules of law, they apply only to appropriation, and they do not alter the underlying principle that dishonesty is not defined.
+This reflects the view of the Criminal Law Revision Committee that dishonesty was a matter to be left to a jury; it said at para 39 that Dishonesty is something which laymen can easily recognise when they see it.
+That is not to suggest that there is not room for debate at the fringes whether particular conduct is dishonest or not, but the perils of advance definition would no doubt have been greater than those associated with leaving the matter to the jury.
+Over the succeeding half century, whilst there have undoubtedly (and inevitably) been examples of uncertainty or debate in identifying whether some conduct is dishonest or not, juries appear generally to have coped well with applying an uncomplicated lay objective standard of honesty to activities as disparate as sophisticated banking practices (for example R v Hayes [2015] EWCA Crim 1944) and the removal of golf balls at night from the bottom of a lake on a private golf course (R v Rostron [2003] EWCA Crim 2206).
+A significant refinement to the test for dishonesty was introduced by R v Ghosh [1982] QB 1053.
+Since then, in criminal cases, the judge has been required to direct the jury, if the point arises, to apply a two stage test.
+Firstly, it must ask whether in its judgment the conduct complained of was dishonest by the lay objective standards of ordinary reasonable and honest people.
+If the answer is no, that disposes of the case in favour of the defendant.
+But if the answer is yes, it must ask, secondly, whether the defendant must have realised that ordinary honest people would so regard his behaviour, and he is to be convicted only if the answer to that second question is yes.
+The occasion for this ruling owed nothing to the facts of Ghosh.
+The defendant locum surgeon had claimed payment for operations which either he had not performed, or which had been carried out under the National Health scheme so that no fees were due.
+The court summarily dismissed his appeal on the basis that no jury could have concluded, by any test, otherwise than that he was dishonest.
+The occasion for the analysis of dishonesty in Ghosh was a tangle of what were perceived to be inconsistent decisions, some of which were said to apply a subjective test, and others of which were said to apply an objective one.
+Those terms are not always as plain to jurors as they have become to lawyers, but it is convenient to adopt them here when examining the reasoning in Ghosh.
+That case arrived, as has been seen, at a compromise rule which is partly objective and partly subjective.
+Thirty years on, however, it can be seen that there are a number of serious problems about the second leg of the rule adopted in Ghosh. (1) It has the unintended effect that the more warped the defendants standards of honesty are, the less likely it is that he will be convicted of dishonest behaviour. (2) It was based on the premise that it was necessary in order to give proper effect to the principle that dishonesty, and especially criminal responsibility for it, must depend on the actual state of mind of the defendant, whereas the rule is not necessary to preserve this principle.
+It sets a test which jurors and others often find puzzling and difficult It represented a significant departure from the pre Theft Act 1968 law, (3) to apply. (4) It has led to an unprincipled divergence between the test for dishonesty in criminal proceedings and the test of the same concept when it arises in the context of a civil action. (5) when there is no indication that such a change had been intended. (6) Moreover, it was not compelled by authority.
+Although the pre Ghosh cases were in a state of some entanglement, the better view is that the preponderance of authority favoured the simpler rule that, once the defendants state of knowledge and belief has been established, whether that state of mind was dishonest or not is to be determined by the application of the standards of the ordinary honest person, represented in a criminal case by the collective judgment of jurors or magistrates.
+The principal objection to the second leg of the Ghosh test is that the less the defendants standards conform to what society in general expects, the less likely he is to be held criminally responsible for his behaviour.
+It is true that Ghosh attempted to reconcile what it regarded as the dichotomy between a subjective and an objective approach by a mixed test.
+The court addressed the present objection in this way, at p 1064: There remains the objection that to adopt a subjective test is to abandon all standards but that of the accused himself, and to bring about a state of affairs in which Robin Hood would be no robber: R v Greenstein [1975] 1 WLR 1353.
+This objection misunderstands the nature of the subjective test.
+It is no defence for a man to say I knew that what I was doing is generally regarded as dishonest; but I do not regard it as dishonest myself.
+Therefore I am not guilty.
+What he is however entitled to say is I did not know that anybody would regard what I was doing as dishonest.
+He may not be believed; just as he may not be believed if he sets up a claim of right under section 2(1) of the Theft Act 1968, or asserts that he believed in the truth of a misrepresentation under section 15 of the Act of 1968.
+But if he is believed, or raises a real doubt about the matter, the jury cannot be sure that he was dishonest.
+And a little later the court added that upon the test which it was setting: In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it.
+It will be obvious that the defendant himself knew that he was acting dishonestly.
+It is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did.
+For example, Robin Hood or those ardent anti vivisectionists who remove animals from vivisection laboratories are acting dishonestly, even though they may consider themselves to be morally justified in doing what they do, because they know that ordinary people would consider these actions to be dishonest.
+Even if this were correct, it would still mean that the defendant who thinks that stealing from a bookmaker is not dishonest (as in R v Gilks [1972] 1 WLR 1341 see para 73 below) is entitled to be acquitted.
+It is no answer to say that he will be convicted if he realised that ordinary honest people would think that stealing from a bookmaker is dishonest, for by definition he does not realise this.
+Moreover, the courts proposition was not correct, because it is not in the least unusual for the accused not to share the standards which ordinary honest people set for society as a whole.
+The acquisitive offender may, it is true, be the cheerful character who frankly acknowledges that he is a crook, but very often he is not, but, rather, justifies his behaviour to himself.
+Just as convincing himself is frequently the stock in trade of the confidence trickster, so the capacity of all of us to persuade ourselves that what we do is excusable knows few bounds.
+It cannot by any means be assumed that the appropriators of animals from laboratories, to whom the court referred in Ghosh, know that ordinary people would consider their actions to be dishonest; it is just as likely that they are so convinced, however perversely, of the justification for what they do that they persuade themselves that no one could call it dishonest.
+There is no reason why the law should excuse those who make a mistake about what contemporary standards of honesty are, whether in the context of insurance claims, high finance, market manipulation or tax evasion.
+The law does not, in principle, excuse those whose standards are criminal by the benchmarks set by society, nor ought it to do so.
+On the contrary, it is an important, even crucial, function of the criminal law to determine what is criminal and what is not; its purpose is to set the standards of behaviour which are acceptable.
+As it was put in Smiths Law of Theft 9th ed (2007), para 2.296: the second limb allows the accused to escape liability where he has made a mistake of fact as to the contemporary standards of honesty.
+But why should that be an excuse?
+It is plain that in Ghosh the court concluded that its compromise second leg test was necessary in order to preserve the principle that criminal responsibility for dishonesty must depend on the actual state of mind of the defendant.
+It asked the question whether dishonestly, where that word appears in the Theft Act, was intended to characterise a course of conduct or to describe a state of mind.
+The court gave the following example, at p 1063, which was clearly central to its reasoning: Take for example a man who comes from a country where public transport is free.
+On his first day here he travels on a bus.
+He gets off without paying.
+He never had any intention of paying.
+His mind is clearly honest; but his conduct, judged objectively by what he has done, is dishonest.
+It seems to us that in using the word dishonestly in the Theft Act 1968, Parliament cannot have intended to catch dishonest conduct in that sense, that is to say conduct to which no moral obloquy could possibly attach.
+But the man in this example would inevitably escape conviction by the application of the (objective) first leg of the Ghosh test.
+That is because, in order to determine the honesty or otherwise of a persons conduct, one must ask what he knew or believed about the facts affecting the area of activity in which he was engaging.
+In order to decide whether this visitor was dishonest by the standards of ordinary people, it would be necessary to establish his own actual state of knowledge of how public transport works.
+Because he genuinely believes that public transport is free, there is nothing objectively dishonest about his not paying on the bus.
+The same would be true of a child who did not know the rules, or of a person who had innocently misread the bus pass sent to him and did not realise that it did not operate until after 10.00 in the morning.
+The answer to the courts question is that dishonestly, where it appears, is indeed intended to characterise what the defendant did, but in characterising it one must first ascertain his actual state of mind as to the facts in which he did it.
+It was not correct to postulate that the conventional objective test of dishonesty involves judging only the actions and not the state of knowledge or belief as to the facts in which they were performed.
+What is objectively judged is the standard of behaviour, given any known actual state of mind of the actor as to the facts.
+Although there have been relatively few appeals based upon Ghosh, that is because judges have dutifully given the two leg direction where there has been any occasion for it.
+But the existence of the second leg has frequently led to trials being conducted on the basis that even if the defendants actions, in his actual state of knowledge or belief about the relevant facts, would be characterised by most people as dishonest, the defendant himself thought that what he was doing was not wrong, and it was for that reason honest.
+Juries are then required first to ask the so called objective question, that is to say to apply their own standards of honesty, but then to depart from them in order to ask what the defendant himself thought.
+The idea that something which is dishonest by ordinary standards can become honest just because the defendant thinks it is may often not be an easy one for jurors to grasp.
+Dishonesty is by no means confined to the criminal law.
+Civil actions may also frequently raise the question whether an action was honest or dishonest.
+The liability of an accessory to a breach of trust is, for example, not strict, as the liability of the trustee is, but (absent an exoneration clause) is fault based.
+Negligence is not sufficient.
+Nothing less than dishonest assistance will suffice.
+Successive cases at the highest level have decided that the test of dishonesty is objective.
+After some hesitation in Twinsectra Ltd v Yardley [2002] UKHL 12; [2002] 2 AC 164, the law is settled on the objective test set out by Lord Nicholls in Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378: see Barlow Clowes International Ltd v Eurotrust International Ltd [2005] UKPC 37; [2006] 1 WLR 1476, Abou Rahmah v Abacha [2006] EWCA Civ 1492; [2007] Bus LR 220; [2007] 1 Lloyds Rep 115 and Starglade Properties Ltd v Nash [2010] EWCA Civ 1314; [2011] Lloyds Rep FC 102.
+The test now clearly established was explained thus in Barlow Clowes by Lord Hoffmann, at pp 1479 1480, who had been a party also to Twinsectra: Although a dishonest state of mind is a subjective mental state, the standard by which the law determines whether it is dishonest is objective.
+If by ordinary standards a defendants mental state would be characterised as dishonest, it is irrelevant that the defendant judges by different standards.
+The Court of Appeal held this to be a correct state of the law and their Lordships agree.
+Although the House of Lords and Privy Council were careful in these cases to confine their decisions to civil cases, there can be no logical or principled basis for the meaning of dishonesty (as distinct from the standards of proof by which it must be established) to differ according to whether it arises in a civil action or a criminal prosecution.
+Dishonesty is a simple, if occasionally imprecise, English word.
+It would be an affront to the law if its meaning differed according to the kind of proceedings in which it arose.
+It is easy enough to envisage cases where precisely the same behaviour, by the same person, falls to be examined in both kinds of proceeding.
+In Starglade Properties Leveson LJ drew attention to the difference of test as between civil cases and criminal cases, and rightly held that it demanded consideration when the opportunity arose.
+Such an opportunity is unlikely to occur in a criminal case whilst Ghosh remains binding on trial judges throughout the country.
+Although in R v Cornelius [2012] EWCA Crim 500 the opportunity might have arisen before the Court of Appeal, Criminal Division, it did not do so because there had been in that case no false representation of which the honesty needed to be examined; moreover, there is some doubt about the freedom of that court to depart from Ghosh in the absence of a decision from this court.
+Prior to the Theft Act 1968, the expression dishonestly had not appeared in the legal definition of acquisitive offences.
+The mental element was usually marked by the expression fraudulently.
+There is no doubt that that latter expression involved an objective evaluation of the defendants conduct, given his actual state of knowledge and belief as to the facts.
+The Criminal Law Revision Committee, in its eighth report, advised the substitution of the word dishonestly, on the grounds that fraudulently had become technical and its meaning had departed somewhat from the ordinary understanding of lay people.
+It recommended that dishonestly would be more easily understood by lay fact finders and the public generally.
+At para 39 the Committee advised that: Dishonestly seems to us a better word than fraudulently.
+The question Was this dishonest? is easier for a jury to answer than the question Was this fraudulent?.
+Dishonesty is something which laymen can easily recognize when they see it, whereas fraud may seem to involve technicalities which have to be explained by a lawyer.
+It was in accordance with this substitution that in Feely a five judge Court of Appeal, Criminal Division, held that the question whether a defendant had behaved dishonestly was to be left to the jury and should not, as had been the case with fraudulently, be the subject of judicial ruling.
+But there is no hint in the Committees report of any contemplation that whether a man was or was not dishonest should henceforth depend on his own view of his behaviour.
+On the contrary, the report clearly assumed that the prior objective approach would continue, save that the question would be a jury matter rather than one of law.
+Prior to Ghosh the post Theft Act authorities on the meaning of dishonesty were in something of a tangle.
+The court in that case seems to have thought, however, that there were more or less equal strands of authority supporting the subjective and the objective approach.
+It identified R v Feely [1973] QB 530 and R v Greenstein [1975] 1 WLR 1353 as tending to support an objective approach, and R v Landy [1981] 1 WLR 355, R v Waterfall [1970] 1 QB 148, R v Royle [1971] 1 WLR 1764 and R v Gilks [1972] 1 WLR 1341 as tending to favour a subjective one.
+It treated R v McIvor [1982] 1 WLR 409 as an unsustainable attempt to reconcile the two lines.
+This apparently binary dichotomy is not entirely borne out on analysis.
+Chronologically the first two cases, Waterfall and Royle, decided in July 1969 and November 1971, did not concern the characterisation of behaviour as dishonest.
+Rather, they held that where a false representation is alleged, it must be shown that the defendant knew that it was false, or at least was reckless in making it without caring whether or not it was true.
+Until there is a false representation, deliberately or recklessly made, the jury does not get to whether it was dishonest or not.
+Plainly, the defendants actual state of mind as to the truth of the representation is a matter for subjective determination.
+If he genuinely believes that what he said was true, he is entitled to be acquitted, unless of course there is some other behaviour independent of the false representation which can be said to be dishonest.
+It does not at all follow that, when once an absence of belief in the truth of his representation is established, dishonesty is likewise an entirely subjective matter, nor that it is so in cases which do not depend on allegations of false representation(s).
+This important distinction was subsequently identified in both Landy and in Ghosh itself, but the court in the latter case regarded it as unsatisfactory that the jury should have to apply successive tests, firstly of the defendants actual knowledge or belief, and, only if he deliberately made a false representation, secondly of the character of his conduct, given his actual state of mind.
+Waterfall and Royle were treated as examples of a subjective test of dishonesty, although they are not.
+There should in fact be no difficulty in the jury making this distinction, as cases such as Greenstein (below) show.
+It has to be done in every case where there was a false representation but there is a question whether there is any possible moral obloquy attaching to it.
+And it falls to be done, easily enough, in non representation cases such as that of the bus travelling foreign visitor.
+A not dissimilar two stage test is routinely applied by juries where self defence is in issue.
+The first stage is to ask what the facts were, as the defendant subjectively believed them to be.
+The second stage is, assuming such facts, to judge whether the response of the defendant was objectively reasonable.
+See R v Gladstone Williams [1987] 3 All ER 411 and section 76 of the Criminal Justice and Immigration Act 2008.
+In December 1972 a five judge Court of Appeal decided Feely.
+Like some others, the case concerned a defendant employee who had helped himself to money from the till knowing that such a thing was forbidden, but contended by way of defence that he had intended to repay it, and that his employers owed him money anyway.
+The decision of the court was that it is for the jury, not the judge, to say whether the conduct established was dishonest or not.
+The court said plainly that employees who take money from the till without permission are usually thieves, but that if the circumstances were such that no possible moral obloquy could attach to what was done, they might not be.
+It gave as an example the defendant who took the money only because he had no change in his pocket to pay a taxi which had just delivered his wife to the shop, and who meant to and did replace it within minutes.
+Because the question whether that kind of analysis applied in that case had not been left open by the direction to the jury, the appeal against conviction was allowed.
+It is therefore inherent in that case that what the jury has to do is to apply its own (objective) standards to whether the conduct was dishonest.
+Greenstein, decided in July 1975, concerned a large scale operation of a method of the discouraged but not illegal practice of stagging new issue shares by applying for vastly more than the defendants could pay for, in the hope that a smaller affordable number would be allocated, but more than would have been allotted if the application had been confined to what they could afford.
+The charges, of obtaining property by deception, depended on the representation made when a cheque is issued, that it is good for the money on due presentation.
+The defendants, who applied in multiple aliases, did not have the money to meet the cheques they signed for the full number of shares applied for, which were required by the issuers, but they hoped that the return cheques which could be expected to be sent after partial allocation would feed their accounts in time to enable their original cheques to be met.
+The court upheld the judges two part direction.
+First, he told the jury that when it came to asking whether the defendants genuinely believed that their cheques would be met on due presentation (as many were and several were not) the answer should depend on their actual state of belief.
+Secondly, he told them that when the question was whether the defendants had acted honestly overall (that is if there was a false representation), they must apply their own standards.
+It was, the judge had said, no good applying the standards of anyone accused of dishonesty, for in that event everyone would automatically be acquitted.
+That case accordingly supports the principle that the test of dishonesty (but not of belief in a representation) is objective.
+Feely was applied.
+Feely was also applied in Boggeln v Williams [1978] 1 WLR 873, decided in January 1978.
+The defendant had been acquitted of dishonestly abstracting electricity by re connecting his supply after the Board had cut him off for late payment.
+The acquittal was by the Crown Court on appeal and specific findings of fact were accordingly available.
+They were that he knew how to by pass the meter, but had not done so, that he gave notice to the Board of what he was doing, that he genuinely believed that he would be able to pay when the time came, that that belief was not shown to be unreasonable and that in the judgment of the Crown Court he had not acted dishonestly.
+The Divisional Court applied Feely in holding that the decision upon honesty was for the fact finding tribunal and that there was material entitling it to find as it did.
+That case did not address the nature of the test of dishonesty beyond saying that the defendants view of his conduct was, on those findings, crucial.
+The reality is that the Crown Court did not think the conduct dishonest, given what the defendant did and intended.
+In Ghosh, this case was rightly treated as inconclusive upon the perceived binary dichotomy.
+R v Landy, decided in January 1981, was a case of complex fraudulent trading via a bank, which re affirmed that dishonesty was a necessary element of conspiracy to defraud.
+It also, and more crucially, insisted on an indictment for conspiracy to defraud giving proper particulars of the conduct complained of, the absence of which had, in that case, led to a confused and diffuse summing up which did not properly identify the issues for the jury.
+The case was important for laying the early ground for modern case management of fraud trials.
+In the course of its judgment, given by Lawton LJ, the court said this, at p 365: There is always a danger that a jury may think that proof of an irregularity followed by loss is proof of dishonesty.
+The dishonesty to be proved must be in the minds and intentions of the defendants.
+It is to their states of mind that the jury must direct their attention.
+What the reasonable man or the jurors themselves would have believed or intended in the circumstances in which the defendants found themselves is not what the jury have to decide, but what a reasonable man or they themselves would have believed or intended in similar circumstances may help them to decide what in fact individual defendants believed or intended.
+An assertion by a defendant that throughout a transaction he acted honestly does not have to be accepted but has to be weighed like any other piece of evidence.
+If that was the defendants state of mind, or may have been, he is entitled to be acquitted.
+But if the jury, applying their own notions of what is honest and what is not, conclude that he could not have believed that he was acting honestly, then the element of dishonesty will have been established.
+What a jury must not do is to say to themselves: If we had been in his place we would have known we were acting dishonestly so he must have known he was.
+What they can say is: We are sure he was acting dishonestly because we can see no reason why a man of his intelligence and experience would not have appreciated, as right minded people would have done, that what he was doing was dishonest.
+This passage was treated in Ghosh as supportive of a subjective test of dishonesty.
+However, its context was an alleged banking fraud consisting of dealing with money of lenders and depositors in ways which were likely to, and did, lead them to lose their money.
+The ways included reckless and unsecured speculation, preferential payments to connected companies, the preparation of false accounts, the lodging of false Bank of England returns, and the creation of false discount bills when there was no underlying commercial transaction.
+The critical fact is that the defence was that the defendants did not know enough of what was going on to be responsible, and/or that they trusted others to manage the bank.
+Since that was the issue, it is plain that the actual state of mind of the defendants was indeed the critical question for the jury, and that the jury had to approach it in the way explained by Lawton LJ.
+The issue in the case was not principally whether a state of knowledge, if once established, meant that the defendants conduct fell to be characterised as dishonest.
+Indeed, a defendant who knew about the means allegedly adopted would be hard pressed to suggest that he thought them honest.
+The position became more complicated in McIvor, decided in November 1981.
+This was, like Feely, a case of unauthorised taking from the till by an employee.
+The defendant had asked to borrow money and, having been refused, helped himself nevertheless.
+He asserted by way of defence that he had always intended to put the money back, as indeed he had done ten days later.
+The judge had told the jury that it must apply the standards of ordinary honest people to whether what the defendant had done was dishonest, and that what he himself thought about that issue was neither here nor there.
+The appeal came before a Court of Appeal presided over by Lawton LJ, who had delivered the judgments in both Feely and Landy.
+The court held that the passage cited above in Landy applied only to the offence of conspiracy to defraud and not to the offence of theft (or, therefore, to the other Theft Act offences in which dishonesty was an essential element).
+For the latter, the objective lay standard of honesty was to be applied.
+In Ghosh the court treated this decision as suggesting a subjective test for conspiracy to defraud and an objective one for other offences, and understandably held that such a distinction could not be sustained in logic or fairness.
+It is, however, at least possible, if not likely, that all that Lawton LJ was saying in McIvor was that the passage in Landy referred to the issue of the defendants actual state of knowledge of what was happening, and to his actual belief in the truthfulness of any representation which he had made, rather than to the issue of whether an established state of mind is or is not dishonest.
+With hindsight it can be seen that the court perceived clearly that if a wholly subjective test of when an established actual state of knowledge or belief is and is not dishonest were to be applied, the consequences would be that any defendant whose subjective standards were sufficiently warped would be entitled to be acquitted.
+It might be noted that in McIvor the court held that the judges remarks about what the defendant himself thought being neither here nor there might have been taken by the jury as requiring them to disregard what he had said about his actual state of knowledge or belief.
+There had thus been a misdirection, but just as in Ghosh the court held that the only possible conclusion was that the defendant had been dishonest.
+There was in fact only one pre Ghosh case which frankly raised the relevance of the defendants own view as to the honesty of what he had done.
+R v Gilks had been decided as long ago as June 1972.
+The defendant had been handed, by mistake, as much as 100 too much by a bookmaker.
+He realised the mistake but kept the money anyway.
+Asked to account for doing so, he offered the view that whereas it would clearly be wrong to keep such an overpayment if made by the grocer, bookmakers were fair game.
+He was convicted notwithstanding the judges direction that the jury should put itself in his shoes and ask itself whether he had thought he was acting honestly or dishonestly.
+Amongst other grounds of appeal which the Court of Appeal rejected, he contended that the judge ought to have made it yet clearer that even if he did not believe he had any claim of right in law to keep the money, he would still not be guilty unless he did not have the belief he asserted that bookmakers were fair game.
+The Court of Appeal rejected that contention also, saying that the judges direction was a proper and sufficient one.
+Thus the case can be said to have endorsed the (subjective) direction as to dishonesty given by the judge.
+It did so, of course, only to the extent that it rejected the defendants argument that the judges direction was wrongly adverse to him.
+The question whether the direction was too favourable to him did not arise and was not addressed.
+Gilks preceded Feely, Greenstein, Landy, Boggeln v Williams and McIvor but was not cited to any of those later courts, which therefore did not analyse what if anything it had decided.
+It might, however, be thought that the facts of Gilks are a powerful demonstration of the perils of the second leg of the Ghosh test, for it means that if the likes of Mr Gilks are once truthful about their idiosyncratic view of bookmakers, they are bound to be acquitted.
+These several considerations provide convincing grounds for holding that the second leg of the test propounded in Ghosh does not correctly represent the law and that directions based upon it ought no longer to be given.
+The test of dishonesty is as set out by Lord Nicholls in Royal Brunei Airlines Sdn Bhd v Tan and by Lord Hoffmann in Barlow Clowes: see para 62 above.
+When dishonesty is in question the fact finding tribunal must first ascertain (subjectively) the actual state of the individuals knowledge or belief as to the facts.
+The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held.
+When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact finder by applying the (objective) standards of ordinary decent people.
+There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.
+Therefore in the present case, if, contrary to the conclusions arrived at above, there were in cheating at gambling an additional legal element of dishonesty, it would be satisfied by the application of the test as set out above.
+The judge did not get to the question of dishonesty and did not need to do so.
+But it is a fallacy to suggest that his finding that Mr Ivey was truthful when he said that he did not regard what he did as cheating amounted to a finding that his behaviour was honest.
+It was not.
+It was a finding that he was, in that respect, truthful.
+Truthfulness is indeed one characteristic of honesty, and untruthfulness is often a powerful indicator of dishonesty, but a dishonest person may sometimes be truthful about his dishonest opinions, as indeed was the defendant in Gilks.
+For the same reasons which show that Mr Iveys conduct was, contrary to his own opinion, cheating, the better view would be, if the question arose, that his conduct was, contrary to his own opinion, also dishonest.
+For these several reasons, this appeal must be dismissed.
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+This is an interlocutory appeal in a criminal case which concerns the correct construction of section 92(1) of the Trade Marks Act 1994 (the 1994 Act).
+The appellants are a limited company and two individuals connected with its management.
+They are indicted for, inter alia, offences of unauthorised use of trade marks, contrary to section 92(1)(b) and (c) of the 1994 Act.
+No trial has yet been held, and the Crown case remains at this point a matter merely of allegation, which may or may not be proved.
+At a preparatory hearing in the Crown Court, they advanced a submission that part of what was alleged was, on any view, outside the terms of section 92 and no offence.
+Both the trial judge and the Court of Appeal (Criminal Division) rejected that submission.
+They renew it in this court.
+What is alleged is that the defendants are engaged in the bulk importation and subsequent sale of goods such as clothes and shoes.
+The goods, or many of them, are said to bear what appear to be the trade marks of well known brands, such as Ralph Lauren, Adidas, Under Armour, Jack Wills, Fred Perry or similar.
+The goods were manufactured abroad, in countries outside the EU.
+Some of the goods in the possession of the defendants are said to have been manufactured by people who were neither the trade mark proprietor, nor authorised by the proprietor to make them.
+This first category of goods, the appellants describe as counterfeits in the true sense.
+A significant portion of the remainder of the goods are, however, ones where there had originally been an authorisation of manufacture by the registered trade mark holder, whether by subcontract, licence or otherwise, but whose sale had not been authorised by him.
+They were thus sold, bearing the trade mark, without the consent of the owner of the mark.
+The causes of the non authorisation of sale might be, it is said, various.
+Some garments might deliberately have been made by the factories in excess of the numbers permitted by the trade mark owner, so that the balance could be sold for their own benefit.
+Some might have been made in excess of the order without that original ulterior intention (indeed perhaps as precautionary spare capacity planned and approved by the trade mark owner), but then have been put on the market without his consent.
+Some might have been made under a permission which was cancelled by the trade mark owner; that in turn might include cases where the trade mark owner was dissatisfied with the quality and not prepared to have the goods put on the market as if their own, but cancellation might not be limited to that cause.
+Those are not exhaustive of the possibilities.
+These latter various types of goods are described by the appellants as goods appearing on the grey market.
+It is common ground that neither the indictment nor the way the Crown puts its case distinguishes between these various different provenances.
+That led to submissions that the indictment would turn out either to be bad for duplicity or to be misleading, and at risk of producing verdicts which it was difficult to interpret.
+Thus was the point now at issue identified.
+In short, it is common ground that: (i) before there can be a criminal offence of unauthorised use of a trade mark there must be an infringement of that mark which would be unlawful as a matter of civil law; see R v Johnstone [2003] UKHL 28; [2003] 1 WLR 1736; and (ii) the sale, or the possession in the course of trade, of goods of any of the various provenances set out in para 5 above, would amount to an infringement of trade marks, giving rise to civil liability.
+But the appellants case is that whilst any of the various provenances set out would involve civil liability, it is only in the case of what they describe as true counterfeits that there is any criminal offence.
+They say that goods which were originally manufactured with the permission of the trade mark proprietor, but which are ones where he has not authorised the sale, are not true counterfeits and are not within the statute.
+Section 92(1) does not apply, they contend, to goods put on the grey market.
+The resolution of this contention depends on the true construction of section 92(1) of the 1994 Act.
+It says: 92. (1) A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor (a) applies to goods or their packaging a sign identical to, or likely to be mistaken for, a registered trade mark, or (b) sells or lets for hire, offers or exposes for sale or hire or distributes goods which bear, or the packaging of which bears, such a sign, or (c) has in his possession, custody or control in the course of a business any such goods with a view to the doing of anything, by himself or another, which would be an offence under paragraph (b).
+Subsection 92(5) adds a reverse onus statutory defence: (5) It is a defence for a person charged with an offence under this section to show that he believed on reasonable grounds that the use of the sign in the manner in which it was used, or was to be used, was not an infringement of the registered trade mark.
+The appellants contention focuses on the use of the expression such a sign in subsection (1)(b).
+That refers back, they say, to subsection (1)(a).
+And by referring back to (1)(a), they say, it means that (b) applies only to goods where the relevant sign (ie trade mark) has been applied without the consent of the proprietor.
+Any goods in the grey market category have had the trade mark originally applied with the consent of the proprietor.
+It is only the sale which the proprietor has not authorised.
+Therefore, they say, those goods are not ones to which paragraph (a) of the subsection could apply.
+It follows, they contend, that they are not, when it comes to paragraph (b), goods which bear such a sign.
+It may readily be agreed that the expression such a sign in section 92(1)(b) refers back to the sign described in the immediately preceding paragraph (a).
+The difficulty comes when one is asked to read such a sign as incorporating the words without the consent of the proprietor which appear in the first few lines of the section before (a), and also the requirement that the sign has been applied to the goods (without such consent), which is the central component of the offence under (a).
+This is simply not a possible construction of section 92(1).
+There is no difficulty, on the ordinary reading of paragraphs (a) and (b), in seeing what the reference back to such a sign in (b) imports from (a).
+Such a sign in (b) plainly means a sign such as is described in (a).
+The sign described in (a) is a sign which is identical to, or likely to be mistaken for, a registered trade mark.
+Signs (or trade marks) having any of the provenances described in para 5 above are squarely within this description.
+So called grey market goods are caught by the expression.
+The offences set out in paragraphs (a), (b) and (c) of section 92 are, as a matter of plain reading, not cumulative, but separate.
+It is not necessary that one has been committed (by someone) before one can say that the next in line has been.
+The mental element of a view to gain or the intent to cause loss is applicable to all three.
+So is the element that the use made of the sign is without the consent of its proprietor.
+Paragraph (a) then makes it an offence to apply such a mark, without consent and with the relevant mental element.
+Paragraph (b) makes it an offence to sell (etc) goods with such a mark, without the consent of the proprietor and with the necessary mental element.
+Paragraph (c) does the same for the preparatory offence of possession in the course of business with a view to behaviour which would be an offence under (b), again without the consent of the proprietor and with the relevant mental element.
+Subparagraph (c) thus involves anticipation (but not necessarily the commission) of an offence under (b).
+Of course, a person may commit all three offences, or different people may commit all three between them.
+But that is not necessary.
+Each stands alone.
+The appellants reading of paragraph (b) is, by contrast, strained and unnatural.
+It does not simply reach back to (a) but to the general words of the section which precede it.
+It requires one to read sign in (a), which is incorporated into (b), as which bears a sign, so applied, or at least as such a sign, so applied.
+This being so, there is no ambiguity or obscurity in the language such as would justify the court, pursuant to Pepper v Hart [1993] AC 593, in investigating the contents of Parliamentary debate at the time of the passage of the Bill which became the 1994 Act.
+Nor can it be suggested that the ordinary (or literal) reading of the Act gives rise to absurdity.
+It should be recorded, moreover, that the appellants realistically did not contend that there had been the kind of clear ministerial statement which amounted to a definitive identification of what the Bill was intended to achieve.
+The most that is contended for is that the passage of the Bill was marked by several references to the desirability of punishing counterfeiting.
+No doubt it was.
+But there is not suggested to be any point at which Parliament, or any individual speaker, confronted the suggested difference between fake goods (which the appellants here describe as true counterfeits) and grey market goods.
+Still less is there any point at which it can be suggested that Parliament plainly confined itself to criminalising fake goods and abjured the criminalising of grey market goods.
+In support of their contention that such a distinction was plainly intended, the appellants referred to observations made by Lord Nicholls and Lord Walker in R v Johnstone upon the differences between counterfeit goods, pirated goods, and bootlegged goods.
+Those observations arose, however, in the context of the case in which they were spoken.
+The defendant was charged with offences against section 92(1)(c).
+The offences were said to have arisen out of his possession for sale of compilation compact discs comprising songs which had covertly been recorded at concerts given by well known artistes.
+The compact discs referred to the artistes by name, track by track, and the artiste had in each case registered his name as a trade mark.
+The issue was whether the use of the name was, in the particular circumstances, one which might be taken by the buying public as an indication of authorised origin of the disc, as distinct from identifying the singer.
+That was a question of fact, but unless it was demonstrated that the use of the name would be taken as an indication of origin, there would be no civil liability for trade mark infringement, and the decision of the House was that in that event there could be no criminal liability either.
+It was in that context that Lord Nicholls referred at paragraph 1 to counterfeit goods as cheap imitations of the authentic article; that was said to distinguish that case from pirated music, which is music marketed without any trade mark, although recorded from a trade marked disc, and from bootlegged music, which is what Mr Johnstone had.
+Likewise, Lord Walker, at para 59, referred to counterfeiting as an expression generally used to include unauthorised sale, under a well known trade mark, of goods not made or authorised by the proprietor.
+Neither of their Lordships was addressing what is here said to be the critical difference between fake goods and unauthorised goods on the grey market.
+Their observations came, moreover, years after the passage of the 1994 Act, and could not have been in mind at the time of its passing.
+The appellants are correct that, in the context of goods which a proprietor voluntarily puts into the European single market with his trade mark attached, section 12 of the 1994 Act, transposing article 7 of Directive 89/104/EEC, has the effect that further objection to the use of the mark is limited to special cases, such as changes or impairments to the goods.
+But that is true whichever of the rival constructions of section 92 is correct.
+Where it applies, this concept of exhaustion means that there is no infringement of the mark as a matter of civil law, and thus no criminal offence.
+But this sheds no light on the correct construction of section 92.
+The appellants further drew attention to the wording of the predecessor of section 92, section 58A of the Trade Marks Act 1938.
+This had provided: 58A.(l) It is an offence, subject to subsection (3) below, for a person (a) to apply a mark identical to or nearly resembling a registered trade mark to goods, or to material used or intended to be used for labelling, packaging or advertising goods, or (b) hire, or distribute to sell, let for hire, or offer or expose for sale or goods bearing such a mark, or (i) (ii) material bearing such a mark which is used or intended to be used for labelling, packaging or advertising goods, or (c) to use material bearing such a mark in the course of a business for labelling, packaging or advertising goods, or to possess in the course of a business goods or (d) material bearing such a mark with a view to doing any of the things mentioned in paragraphs (a) to (c), when he is not entitled to use the mark in relation to the goods in question and the goods are not connected in the course of trade with a person who is so entitled. (3) A person commits an offence under subsection (1) or (2) only if (a) he acts with a view to gain for himself or another, or with intent to cause loss to another, and (b) he intends that the goods in question should be accepted as connected in the course of trade with a person entitled to use the mark in question; and it is a defence for a person charged with an offence under subsection (1) to show that he believed on reasonable grounds that he was entitled to use the mark in relation to the goods in question.
+This section provided, in subsection (3), for a more stringent test of mental element than does the present section 92.
+The appellants invite us to conclude that the earlier, more stringent, mental element may have had the practical effect of confining criminal liability to cases of their category of true counterfeits, and they say that a change in that effect is not demonstrated to have been intended by the 1994 Act.
+The difficulty with that is that whilst it is certainly true that the mental element was more stringent, the 1938 Act would still have caught so called grey market goods, for paragraph (1)(b) clearly applied to goods which were sold when sale was unauthorised, whether or not the original application of the mark had been permitted.
+Moreover, it is noticeable that the construction now contended for of section 92(1)(b) could not have been applied to section 58A(1)(b) without considerable difficulty, for the words giving effect to the element of absence of consent of the trademark proprietor did not appear at the beginning of the section as they now do, but only at the end; hence it would have been even more problematical to suggest that such a mark imported them.
+It is plain enough that the inversion of the order of the words was a grammatical rather than a substantive variation.
+Nor is there any reason to strain the language of section 92(1)(b) so as to exclude the sale of grey market goods.
+That is not because of the consequentialist arguments pressed on us by the Crown.
+It is doubtful that (absurdities or impossibilities apart) difficulties in assembling evidence can ordinarily affect the construction of a criminal statute.
+Moreover, some of the supposedly adverse consequences of such a construction which were put before us on behalf of the Crown would be as likely to ensue even on the correct interpretation of the Act set out above.
+The possible difficulty of distinguishing, where there has been an overrun, between the goods marketed with the proprietors authority and those which were a backdoor venture on the part of the manufacturer and subsellers, might as well arise on both constructions; no doubt in many cases the circumstances of the exit from the factory and of the subsequent sales will often be telling.
+Likewise it is far from clear that there will be greater difficulty occasioned by the appellants suggested construction than by the correct one in the case of convincing fakes.
+In both cases the defendant may occasionally be in a position to assert that he was taken in and thus reasonably believed that no infringement was involved.
+Such a defence, if advanced, must be met on its merits, which will no doubt involve investigation of, inter alia, the circumstances in which the defendant acquired the goods and the inquiries which he did or did not make.
+But, these consequentialist arguments apart, it is, on any view, unlawful for a person in the position of the defendants to put grey goods on the market just as it is to put fake ones there.
+Both may involve deception of the buying public; the grey market goods may be such because they are defective.
+The distinction between the two categories is by no means cut and dried.
+But both are, in any event, clear infringements of the rights of the trade mark proprietor.
+Defendants who set out to buy up grey market goods to make a profit on re sale do so because the object is to cash in on someone elses trade mark.
+If such be proved, they have scant claim to a beneficent construction of the Act.
+As it is, its ordinary reading plainly means that, unless they have the statutory defence, they have committed an offence.
+In the alternative, the appellants contend that the Crowns construction of section 92(1) involves a disproportionate breach of their rights under article 1, Protocol 1 to the European Convention on Human Rights.
+It may be accepted that it is perfectly possible that the imposition of a criminal sanction might be disproportionate where a civil law sanction is not.
+But persons in the position of these defendants have no proprietary right in the trade marks.
+They do have a right in the goods which they have bought, but the 1994 Act does not stop them selling them, except if they wish to do so whilst still with the misleading and infringing trade mark attached.
+The 1994 Act does not, therefore, deprive the defendants of any property which they have.
+The most it does is to regulate their use or the manner of their disposal of the goods, which is permitted under the second paragraph of article 1 in the general interest, which must include a general interest in the protection of trade marks.
+There is in any event nothing disproportionate in the 1994 Act penalising sales when the infringing trade mark is still attached, nor in imposing a criminal sanction on those who might otherwise calculate that the risk of liability in damages is worth taking.
+That is a perfectly legitimate balance to draw between the rights of the proprietor to protect his valuable trademark and goodwill, and those of the person who wishes to sell goods which he has bought.
+For these several reasons, these appeals must be dismissed and the trial may proceed accordingly.
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+The issue in this case is the proper approach of the immigration appellate authorities where the Secretary of State has decided that a national of the European Economic Area who is lawfully living in the United Kingdom should be removed on the ground of abuse of the right to reside here.
+The abuse in question happened to be an alleged attempt to enter into a marriage of convenience but the issue would arise in respect of any abuse which would justify removal under article 35 of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (the Directive).
+The facts
+Ms Sadovska is a citizen of Lithuania.
+She came to this country lawfully in February 2007 and has since been living and working here lawfully, exercising her rights under the Directive.
+She lives in Edinburgh, where her sisters also live, and works as a cleaner.
+Mr Malik is a citizen of Pakistan who came to this country lawfully with a Tier 4 student visa in May 2011.
+His visa expired on 15 April 2013 and he has been here unlawfully ever since.
+He too lives and worked in Edinburgh until 17 April 2014.
+They say that they met at a disco, El Barrio in Edinburgh, in October 2012.
+They spent that night together and saw one another from time to time afterwards, meeting members of one anothers families, but the relationship did not become a steady one until Valentines Day 2013.
+Thereafter, they say, they saw one another as boyfriend and girlfriend.
+It is common ground (and there is photographic evidence) that in December 2013, Mr Malik attended the wedding of Ms Sadovskas sister and that they were on the streets of Edinburgh together during the celebrations at Hogmanay 2013.
+It is also common ground that Mr Malik booked a double room for two adults at a London hotel for four nights in January 2014 and that they were both in London at that time.
+They say that they were on holiday together and that was when they decided to get married.
+On 25 March 2014, they published notice of their intention to marry on 17 April 2014 at Leith Registry Office.
+On 28 March 2014, they signed a one page statement about their relationship which included the following puzzling sentence: We have discussed the idea of living together in depth and also have touched upon the subject of marriage, but as of yet, none of these discussions have manifested into action.
+That statement was enclosed in a letter dated 11 April 2014, sent by solicitors acting for Mr Malik (and, it would appear, also for Ms Sadovska) to the Home Office in Glasgow.
+This explained that their client was an over stayer, but that he intended to marry an EEA national on 17 April 2014 and would be applying for recognition that he was exercising Treaty rights as a family member of an EEA national, so it was hoped that no enforcement action would be taken against him.
+The letter recognised that officials might wish to interview their clients but hoped that this could be done before their wedding on 17 April.
+It also stated that: We would like you to take this letter as a human rights allegation that both the applicant and the EEA national have established a family life in the United Kingdom and any decision to attempt to remove the applicant from the United Kingdom would be challenged on article 8 grounds and also on the grounds that the applicant [sci: attempt?] breaches our clients right to marry under article 12 of the ECHR.
+Enclosed were copies of Mr Maliks passport, of Ms Sadovskas identity card, birth certificate and most recent payslip, a receipt from the Property Management Company in respect of a flat in Edinburgh for which they had signed a lease on 6 April 2014, three statements from two people who knew them, and their statement of 28 March.
+Mr Malik and Ms Sadovska had indeed signed a lease for a flat in Edinburgh on 6 April 2014 and each gave this as their home address when interviewed on 17 April. (We are told that they still live together but at a different address.) On 16 April 2016 they bought wedding rings.
+The solicitors letter was faxed to the Home Office on Friday 11 April.
+The wedding was due to take place on the afternoon of the following Thursday.
+Before that could happen, however, immigration officers arrived at the Registrars Office and asked to interview them.
+They agreed.
+Each was cautioned and agreed to be interviewed in English.
+They were interviewed separately, Mr Malik from 14.55 to 16.20 and Ms Sadovska from 14.54 to 16.50, according to the immigration officers records.
+After the interviews they were detained and thus unable to marry.
+Ms Sadovska was released soon afterwards, but Mr Malik was detained until 11 June.
+On the same day as the interviews, each was issued with a two part decision notice.
+Mr Malik was issued with a notice that he was a person liable to removal as an over stayer, who had not applied for further leave to remain after his visa had expired and was thus liable to be detained pending a decision whether or not to give directions for his removal from the United Kingdom.
+The notice explained that he had breached section 10(1)(a) of the Immigration and Asylum Act 1999, which provides that a person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if (a) having only a limited leave to enter or remain, he . remains beyond the time limited by the leave, and had therefore committed an offence under section 24(1)(b)(i) of the Immigration Act 1971.
+Ms Sadovska was issued with a notice that she was a person liable to removal because her removal was justified on grounds of abuse of rights, specifically that she had attempted to enter into a marriage of convenience with Mr Malik.
+The notice referred to regulation 19(3)(c), without explaining that this was contained in the Immigration (European Economic Area) Regulations 2006.
+At the time, this provided that an EEA national who has entered the United Kingdom . may be removed if (c) the Secretary of State has decided that the persons removal is justified on grounds of abuse of rights in accordance with regulation 21B(2).
+Regulation 21B(1) provided that The abuse of a right to reside includes (c) entering, attempting to enter or assisting another person to enter or attempt to enter, a marriage or civil partnership of convenience.
+Regulation 21B(2) provided that The Secretary of State may take an EEA decision on the grounds of abuse of rights where there are reasonable grounds to suspect the abuse of a right to reside and it is proportionate to do so.
+Regulation 24(2) provided that where a decision to remove was taken under regulation 19(3)(c), the person was to be treated as someone to whom section 10(1)(a) of the 1999 Act applied.
+In each case, the notice was accompanied with notice of a decision to remove.
+Both appealed to the First tier Tribunal which heard their appeals together on 4 August 2014 and promulgated a determination refusing them both on 19 August 2014.
+Their appeals to the Upper Tribunal were heard on 5 February 2015 and a determination refusing them was promulgated on 9 February 2015.
+Their appeals to the First Division of the Inner House of the Court of Session were refused on 17 June 2016: [2016] CSIH 51.
+They now appeal to this court.
+They make two complaints about the decisions of the tribunals and court below.
+The first, and most important, relates to the burden of proof in a case such as this.
+Under the heading Applicable law, the First tier Tribunal judge said this, at para 7: In immigration appeals, the burden of proof is on the appellant and the standard of proof required is a balance of probabilities.
+In human rights appeals, it is for the appellant to show that there has been an interference with his or her human rights.
+If that is established, and the relevant article permits, it is then for the respondent to establish that the interference was justified.
+The appropriate standard of proof is whether there are substantial grounds for believing the evidence.
+It is apparent from his determination that his whole approach was to require Ms Sadovska and Mr Malik to prove that their proposed marriage was not a marriage of convenience, rather than to require the Home Office to prove that it was.
+Before the Upper Tribunal the appellants complaint was that the First tier Tribunal judge had taken the interviews as his starting point and given too much weight to the inconsistencies between them and had not considered them in the context of the totality of the evidence, as required by the decision of the Upper Tribunal in Papajorgji v Entry Clearance Officer, Nicosia [2012] UKUT 38, [2012] Imm AR 3 (at para 39).
+Papajorgji was an extraordinary case in which an Albanian woman who had been married to and living with a Greek man for 12 years and had two children with him was refused a visa to accompany him on a visit to this country on the ground that theirs was a marriage of convenience, a belief which, as the Upper Tribunal said, was on the information supplied with the application simply ludicrous (para 32).
+There was no burden on the claimant in an application for a family permit to establish that she was not party to a marriage of convenience unless the circumstances known to the decision maker gave reasonable ground for suspecting that that was the case.
+Where there was such a suspicion the matter required further investigation and the claimant should be invited to respond to by producing evidential material to dispel it (para 27).
+But suspicion was not enough.
+The claimant was only disqualified if it was established that the marriage was one of convenience (para 37).
+The question for the judge was in the light of the totality of the information before me, including the assessment of the claimants answers and any information provided, am I satisfied that it is more probable than not this is a marriage of convenience? (para 39)
+Before the First Division, the appellants did complain that the tribunal had adopted the wrong approach to the burden of proof and that the respondent had failed to prove to the requisite high degree that the appellants were guilty of fraud.
+The court dealt with the matter in this way, at para 20: However, as has often been said, once the evidence has been heard, questions of onus usually cease to be important (Sanderson v McManus 1997 SC (HL) 55, Lord Hope at 62).
+The view of the UT in Papajorgji (at para 39) that the question, in the Tribunal context, was whether it is more probable than not that the marriage is one of convenience in [the] light of the totality of the information, accords with that dictum.
+The court went on to say that the First tier Tribunal had considered all the information and reached a decision based upon it.
+That decision did not depend upon onus but upon weighing the various factors in the balance.
+In that context, there was only one standard of proof, that being the balance of probabilities (Scottish Ministers v Stirton 2014 SC 218, the Lord Justice Clerk (Lord Carloway) at paras 117 119).
+It is perhaps worth noting that Lord Hopes observation in Sanderson v McManus, that questions of onus usually cease to be important once the evidence is before the court was in the context of a dispute between unmarried parents about a fathers contact with his child, when, as Lord Hope observed the matter then becomes one of overall impression, balancing one consideration against another and having regard always to the consideration which has been stated to be paramount (that is, the welfare of the child).
+Even then, the court had to be able to come to the conclusion that making an order would be in the childs best interests.
+This demonstrates that, when considering the burden of proof, it is necessary to understand what the issues are and what has to be established.
+The appellants also complain that their interviews were unfair, oppressive and repugnant to public law standards.
+The circumstances of being approached on their wedding day by uniformed immigration officers carrying batons and handcuffs meant that they were frightened.
+They agreed to be interviewed in English but neither is fluent in English.
+They had no time to contact their solicitor for advice, to obtain an interpreter, to produce evidence and contact witnesses.
+They complain that both the First tier and the Upper Tribunal had thought the interviews were of central importance, yet they gave no weight to the circumstances in which they had taken place.
+The law
+It is of central importance in this case to consider the substantive law governing the respondents decisions and what had therefore to be established in each case.
+It differs significantly as between the two appellants.
+Ms Sadovska is an EEA national.
+Her rights are therefore governed by the Directive, which the 2006 Regulations were designed to implement in UK law.
+To the extent, if any, that the 2006 Regulations do not accurately transpose the requirements of the Directive, we have to give effect to the Directive rather than the Regulations and so it is appropriate to focus on the provisions of the Directive.
+She has been living lawfully in the United Kingdom for a continuous period of more than five years.
+This means that, under article 16 of the Directive, she has the right of permanent residence here.
+None of the conditions attached to the right of residence of people who have been here for more than three months but less than five years, provided for in article 8 of the Directive, applies.
+Article 28.2 lays down the general rule that a host member state may not take an expulsion decision against a Union citizen who has the right of permanent residence except on serious grounds of public policy or public security.
+However, Recital 28 to the Directive states that: To guard against abuse of rights or fraud, notably marriages of convenience or any other form of relationships contracted for the sole purpose of enjoying the right of free movement and residence, member states should have the possibility to adopt the necessary measures.
+This is therefore provided for in article 35, which is the crucial article in this case: Member states may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience.
+Any such measure shall be proportionate and subject to the procedural safeguards provided for in articles 30 and 31.
+Article 30 requires that the person concerned be notified in writing of the decision and informed precisely and in full of the reason for it and where and within what time that person may lodge an appeal.
+Article 31 requires that the person have access to judicial and, where appropriate, administrative redress procedures to appeal against or seek review of any decision taken against them.
+These shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which [it] is based.
+They shall ensure that the decision is not
+disproportionate
+A Communication from the Commission to the European Parliament and the Council on guidance for the better transposition and application of Directive 2004/38/EC, dated 2 July 2009, has this to say about marriages of convenience, at para 4.2: Recital 28 defines marriages of convenience for the purposes of the Directive as marriages contracted for the sole purpose of enjoying the right of free movement and residence under the Directive that someone would not have otherwise.
+A marriage cannot be considered as a marriage of convenience simply because it brings an immigration advantage, or indeed any other advantage.
+The quality of the relationship is immaterial to the application of Article 35.
+The definition in the first sentence is repeated in the Commissions more recent Handbook on addressing the issues of alleged marriages of convenience between EU citizens and non EU nationals in the context of EU law on free movement of EU citizens, dated 26 September 2014.
+However, this goes on to explain that: the notion of sole purpose should not be interpreted literally (as being the unique or exclusive purpose) but rather as meaning that the objective to obtain the right of entry and residence must be the predominant purpose of the abusive conduct.
+But it repeats that: On the other hand, a marriage cannot be considered as a marriage of convenience simply because it brings an immigration advantage, or indeed any other advantage (for example the right to a particular surname, location related allowances, tax advantages or entitlement to social housing for married couples).
+Mr Malik is in a different position from Ms Sadovska.
+As an over stayer he is, as noted above, liable to be removed under section 10(1)(a) of the 1999 Act.
+However, had he succeeded in marrying Ms Sadovska, he would have become a family member within the meaning of article 2.2 of the Directive.
+Under article 7.2, this would bring with it the right of residence for more than three months, provided that Ms Sadovska satisfied one of the conditions in article 7.1(a), (b) or (c).
+As a worker she would satisfy condition (a).
+Once he had been living here lawfully for five years, he too would acquire a right of permanent residence under article 16.2.
+As with Ms Sadovska, of course, he would be liable to removal under article 35 if their marriage was one of convenience.
+As they have not succeeded in marrying, Mr Malik is not a family member of an EU citizen.
+However, article 3.2 requires Member States to facilitate the entry and residence of certain other persons, who include (b) the partner with whom the Union citizen has a durable relationship, duly attested.
+Article 3.2 also requires that The host member state shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.
+Finally, of course, both Ms Sadovska and Mr Malik have rights under the European Convention on Human Rights.
+Article 8.1 guarantees the right to respect for private and family life, although under article 8.2 interference is justified if it is in accordance with the law and necessary in a democratic society to achieve a legitimate aim.
+Article 12 guarantees the right of men and women of marriageable age to marry and to found a family, according to the national laws governing the exercise of [the] right.
+Analysis
+It is clear from the provisions of the Directive quoted above that Ms Sadovska has a right of permanent residence in the United Kingdom.
+As an EU citizen, under article 27.1, her freedom of movement can only be restricted on grounds of public policy, public security or public health.
+As a permanent resident, under article 28 she could only be removed if those grounds are serious.
+It is not suggested that she can be removed under article 28 on any of those grounds.
+She can therefore only be removed, under article 35, if it is established that she has entered, or attempted to enter, into a marriage of convenience.
+Furthermore, although the Regulations permit the respondent to take steps on the basis of reasonable grounds to suspect that that is the case, Ms Sadovska is entitled to an appeal where the facts and circumstances must be fully investigated.
+That must mean, as held in Papajorgji, that the tribunal has to form its own view of the facts from the evidence presented.
+The respondent is seeking to take away established rights.
+One of the most basic rules of litigation is that he who asserts must prove.
+It was not for Ms Sadovska to establish that the relationship was a genuine and lasting one.
+It was for the respondent to establish that it was indeed a marriage of convenience.
+For this purpose, marriage of convenience is a term of article Although it is defined in the Directive and the 2009 Communication as a marriage the sole purpose of which is to gain rights of entry to and residence in the European Union, the 2014 Handbook suggests a more flexible approach, in which this must be the predominant purpose.
+It is not enough that the marriage may bring incidental immigration and other benefits if this is not its predominant purpose.
+Furthermore, except in cases of deceit by the non EU national, this must be the purpose of them both.
+Clearly, a non EU national may be guilty of abuse when the EU national is not, because she believes that it is a genuine relationship.
+In the case of a person exercising EU law rights, the tribunal must also be satisfied that the removal would be a proportionate response to the abuse of rights established.
+So it would be one thing to find that the proposed marriage had been shown to be one of convenience, and therefore that it was right to prevent it, but quite another thing to find that expelling Ms Sadovska from the country where she had lived and worked for so long and had other family members living was a proportionate response to that.
+The First tier Tribunal did not analyse her rights in this way.
+It was quite simply incorrect to deploy the statement that in immigration appeals the burden of proof is on the appellant, correct though it is in the generality of non EU cases, in her case.
+She had established rights and it was for the respondent to prove that the quite narrow grounds existed for taking them away.
+Nor did the determination address the issue of proportionality.
+It is impossible for this court to conclude that, had the matter been approached in the right way, the decision would inevitably have been the same.
+The position of Mr Malik is different, for he has no established rights, either in EU law or in non EU immigration law.
+In order to benefit from the Directive, he would have to show that he has a durable relationship with Ms Sadovska.
+However, article 3.2 requires the respondent to justify any refusal of entry or residence in such cases.
+So if he can produce evidence of a durable relationship (a term which is not defined in the Directive), it would be for the respondent to show that it was not or that there were other good reasons to deny him entry.
+It is not impossible that a tribunal, properly directing itself, would reach different conclusions in the case of these two appellants.
+But it is impossible for this court to conclude that, had the matter been approached in the right way, the decision relating to Mr Malik would inevitably have been the same.
+It follows that the appeal must be allowed and the case remitted for a full re hearing by the First tier Tribunal.
+In seeking to establish its case, the respondent will no doubt concentrate on the interviews, the discrepancies between the appellants accounts, and the gaps in Ms Sadovskas knowledge of Mr Maliks family, together with the sentence in their statement of 28 March that their thoughts of living together and marriage had not yet manifested into action (which on 28 March was strictly true in that they were not yet living together or married but they had given notice of intention to marry).
+But in considering those discrepancies, the circumstances in which the interviews took place and the statement was made must be borne fully in mind.
+Furthermore, there were many matters on which their accounts were consistent.
+It turns out, for example, that Ms Sadovskas mother does indeed live in Lithuania, as Mr Malik said in explaining why she was not there.
+There is also a considerable body of evidence which supports their claim to have been in a genuine relationship, dating back some time before they gave notice of intention to marry.
+Should the tribunal conclude that Mr Malik was delighted to find an EU national with whom he could form a relationship and who was willing to marry him, that does not necessarily mean that their marriage was a marriage of convenience, still less that Ms Sadovska was abusing her rights in entering into it.
+Their legal and their factual cases must be considered separately.
+Having reached the firm conclusion that the case must be remitted to the First tier Tribunal to be heard afresh, because a wrong approach was taken to the requirements of EU law in this case, it is unnecessary to consider whether the appellants Convention rights add anything further to their claims.
+But for my part I would not accept their argument that, because their marriage was frustrated by the respondents actions, their case should be approached as if they were married, which would, of course, enhance Mr Maliks claims.
+It must be permissible for the state to take steps to prevent sham marriages, although it is also incumbent on the state to show that the marriage would indeed be a sham.
diff --git a/UK-Abs/test-data/judgement/uksc-2017-0040.txt b/UK-Abs/test-data/judgement/uksc-2017-0040.txt
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+In circumstances in which at the time of a divorce a spouse, say a wife, is awarded capital which enables her to purchase a home but later she exhausts the capital by entry into a series of unwise transactions and so develops a need to pay rent, is the court entitled to decline to increase the order for the husband to make periodical payments to her so as to fund payment of all (or perhaps even any) of her rent even if he could afford to do so?
+Mr Mills (whom it will be convenient to describe as the husband notwithstanding his divorce from Mrs Mills, the wife, in 2002) appeals against an order for upwards variation of an order for periodical payments against him in favour of the wife.
+The order for variation was made by the Court of Appeal (Longmore LJ and Sir Ernest Ryder, Senior President of Tribunals) on 1 February 2017: [2017] EWCA Civ 129.
+By that order, the Court of Appeal allowed the wifes appeal against the dismissal of her application to vary the order for periodical payments by Judge Everall QC (the judge) in the Central Family Court in London on 9 June 2015.
+The husband and wife are each aged 52.
+They were married in 1987.
+The wife is a qualified beauty therapist.
+In the early years of the marriage she worked, self employed, in that capacity.
+The husband built up a surveying business within two companies which he and the wife owned in equal shares.
+They had one child, a son, now adult.
+In 1996 the wife unfortunately suffered a late miscarriage, which precipitated a long period of painful gynaecological difficulties for her.
+In 2000 the husband left the home in Guildford.
+On 7 June 2002, in the ensuing divorce proceedings, financial issues were resolved within a consent order.
+In addition to provision for their son, who was to continue to make his home with the wife and have contact with the husband, the order provided that: i) the home, vested in the joint names of the parties, should be sold; ii) its net proceeds should be divided in accordance with a formula which in the event yielded 230,000 for the wife in settlement of all her capital claims against the husband and 23,000 for him; the wife should transfer to the husband her interest in policies worth iii) 23,000 and her shares in the surveying companies; and iv) the husband should make periodical payments to her at the annual rate of 13,200 (not index linked) on the open ended basis, namely during their joint lives until her remarriage or further order in the interim.
+The wife therefore received the vast preponderance of the parties liquid capital.
+The value of the two companies was not identified.
+At the time of making the consent order the wife had represented that ill health was disabling her from working and that she would need 350,000 with which to purchase a suitable home for herself and their son.
+The husband had conceded that she then had no capacity to raise a mortgage but had suggested, by contrast, that she could purchase a suitable home for 230,000 or less, in other words free of mortgage.
+In the event, later in 2002, she proceeded to purchase a house in Weybridge for 345,000 by deploying in effect her entire share of the proceeds of the home and by raising the balance of 125,000 on mortgage.
+When he learnt of the wifes purchase, the husband, by solicitors, expressed surprise at its high cost and concern about her ability to service a mortgage, let alone one of such size.
+By solicitors, she replied only that she had not been able to secure reasonably priced accommodation in an area in which it would in her opinion be best for their son to grow up.
+wife had begun to work again as a beauty therapist, but part time.
+In 2006 the wife sold the house in Weybridge at the price for which she had bought it, namely 345,000.
+But the sum owing on mortgage had risen by 93,000 to 218,000.
+Having received written and oral evidence from the wife, the judge found that she had been unable satisfactorily to explain why the sum owing had increased or in what way the increase had been spent.
+Upon the sale of the house in Weybridge the wife bought a flat in Wimbledon for 323,000, with a deposit of 48,000 and a mortgage of 275,000.
+The judge therefore calculated that, net of collateral costs of the transactions, about 62,000 of the proceeds of sale had not been used in the purchase of the flat; but he noted that the wife had refurbished it to some extent.
+It is clear that, by the time of her purchase of the house in Weybridge, the
+In 2007 the wife sold the flat in Wimbledon for 435,000.
+The sum then owing on mortgage had risen only marginally, namely to 277,000.
+Instead she bought a flat in Battersea for 520,000, with a deposit of 78,000 and a mortgage of 442,000.
+The judge therefore calculated that, net of the collateral costs, about 44,000 of the proceeds of sale had not been used in the purchase of the second flat.
+It is unclear from his judgment how the wife was able to secure, and then to service, a borrowing as high as 442,000.
+In 2009 the wife sold the flat in Battersea for 580,000 and began to rent accommodation.
+The judge calculated that, after repaying the mortgage of 442,000 and meeting the collateral costs, the wife received about 120,000 from the proceeds of sale.
+Between 2009 and 2015 the wife rented six successive properties in London and Surrey.
+By April 2015, when the judge heard the case, the wife had no capital.
+On the contrary, she had overdrafts of 4,000, credit card liabilities of 18,000 and a tax liability of about 20,000.
+Before the judge were cross applications.
+The husband had applied for discharge of the order for periodical payments on his payment to the wife of a modest capital sum, say of 26,000; or for a fixed period to be set on her continued receipt of periodical payments and/or for a downwards variation of their amount.
+The wife had cross applied for an upwards variation of their amount.
+Both applications were made under section 31(1) of the Matrimonial Causes Act 1973 (the Act).
+Section 31(7) provides: In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, [which] shall include any change in any of the matters to which the court was required to have regard when making the order to which the application relates, and (a) in the case of a periodical payments . order made on or after the grant of a decree of divorce . , the court shall consider whether in all the circumstances and after having regard to any such change it would be appropriate to vary the order so that payments under the order are required to be made only for such further period as will in the opinion of the court be sufficient to enable the party in whose favour the order was made to adjust without undue hardship to the termination of those payments; The matters to which the court was required to have regard when making the order in 2002, even though it was made by consent, were those set out in section 25(2) of the Act.
+In his judgment, which was reserved, the judge described the wifes oral evidence as not fully satisfactory.
+He explained that she had been unable to give him a clear picture of her financial circumstances in the years since 2002; that, apart from her failure to explain the dramatic increase in the size of the mortgage on the house in Weybridge, she had been unable to identify the size of her income from her part time work in the earlier years, first as a beauty therapist and then for an estate agent.
+He accepted that between 2004 and 2010 she had undergone no less than seven surgical procedures referable to her gynaecological difficulties and that they had affected her earning capacity at that time.
+He found, however, that she had exaggerated the continuing impact, five years later, of those difficulties upon her earning capacity.
+In 2010 she had reverted to work as a beauty therapist.
+Her accounts for the last available year, namely to April 2014, disclosed an annual income net of tax of about 18,500.
+She had then been working about three days each week.
+The judge rejected her contention that ill health precluded her from working for a fourth day but accepted that she might not be able to attract the extra clients to occupy it.
+He therefore ascribed to her annual net earnings of only 18,500.
+The husband contends that it was a somewhat conservative figure; but it is appropriate for an appellate court to adopt it without qualification.
+The judge found that the husband, by contrast, gave reliable and truthful evidence in all respects.
+He had remarried and was living with his second wife, their nine year old son and an adult step daughter in a house in Guildford in which, subject to a substantial mortgage, he had a half interest.
+As in 2002 he had little liquid capital.
+The judge studied his earned income from the surveying companies.
+They had suffered a reverse in 2012 but had slowly recovered since then and, as the husband frankly conceded at the hearing, they were likely to be thriving by 2025.
+The judge ascribed to the husband an existing net annual income of 55,000 inclusive of a small salary which one of the companies chose to pay to his current wife.
+It may again have been a somewhat conservative figure; but it is again appropriate for an appellate court to adopt it without qualification.
+At the hearing the wifes then counsel put before the judge a breakdown of what he suggested to be the amount of her necessary annual expenditure.
+The judge accepted it as very modest.
+Exclusive of figures referable to the adult son, the annual total was 35,792, of which 10,200 was for rent.
+Following deduction of her earnings of 18,500, the wifes annual need was therefore for 17,292.
+But the judges decision was not to vary, whether upwards or downwards, the existing order for periodical payments in the annual sum of 13,200.
+In other words he countenanced a shortfall of 4,092 between the wifes annual need and the husbands obligation to meet it.
+The answer lies in the judges analysis of the wifes loss of the capital sum which had been awarded to her in 2002.
+The judge found that: the award in 2002 would then have enabled the wife to buy a home it had however been reasonable for her to be ambitious and to secure i) free of mortgage; ii) a mortgage for the purchase of the house in Weybridge; iii) thereafter she had not managed her finances wisely; iv) like others at that time, she had committed herself to borrowings which were too high; v) or wanton; vi) but her needs had been augmented by reason of the choices which she had made.
+In the light of those findings the judge decided to reject the husbands submission that the wifes need to pay rent of 10,200 should be entirely eliminated from the total annual need which it would be appropriate for him to meet.
+Nevertheless it was it would be wrong to describe her approach to finances as profligate fair that the husbands contribution to the wifes needs should not include a full contribution to her housing costs.
+If, however arbitrarily, one omits to ascribe any part of the wifes earnings to the payment of rent of 10,200 and treats the rent as entirely subsumed within her residual annual need of 17,292, it is easy to see that the effect of the judges decision to countenance a shortfall from that figure of 4,092 was to oblige the husband to pay 6,108 towards the rent, or 60% of it.
+Although the judge had described the wifes schedule of annual needs totalling 35,792 as very modest and indeed as basic, he said that the husbands contribution should do no more than to enable her to meet her bare minimum needs, which, so he therefore implied, were properly to be reflected in an even lower figure.
+The wife, he said, will have to adjust her expenditure to live within her means.
+The judge found on clear evidence that the husband could afford to continue to make periodical payments in the annual sum of 13,200.
+Indeed, although there was no cause for him to make a finding to this effect, it also seems reasonably clear that the husband could have afforded to pay the extra annual sum of 4,092 if it had been otherwise appropriate to order him to do so; it was certainly no part of the judges reasoning that the husband could not have afforded to pay it.
+In accordance with his duty the judge then turned to consider the husbands application for him to set a fixed period upon the wifes continued receipt of the periodical payments.
+But, applying section 31(7)(a) set out in para 14 above, the judge concluded, unsurprisingly, that he could not identify any fixed period as being sufficient to enable the wife to adjust without undue hardship to their termination.
+It followed that the order should continue to require them to be paid on the open ended basis, namely during their joint lives until her remarriage or further order in the interim.
+Although the open ended basis does not specify a fixed term for the life of the order, the circumstances which it identifies as bringing it to an end, in particular the potential for a further order ending it at any time, show how misleading (indeed, as the husband himself says, how unattractive) it is for some non lawyers to describe such an order as a meal ticket for life.
+Inevitably the judge also concluded that any appropriate capitalisation of periodical payments in that continuing sum and on that continuing basis appeared to be beyond the husbands means.
+So the judge dismissed both the husbands application and the wifes cross application.
+Both the husband and the wife sought permission from the Court of Appeal to appeal against the respective dismissals of their applications.
+The wife secured permission to do so but, in circumstances which rendered him aggrieved but are no longer relevant, the husbands application for permission was not granted likewise but was listed to be heard by the court at the time when it was to hear the wifes substantive appeal.
+At the conclusion of the hearing on 1 February 2017 Sir Ernest Ryder gave an impromptu judgment, with which Longmore LJ agreed.
+In his judgment Sir Ernest said that i) the judge did not give any reason why any part of the trimmed budget, that is the wifes basic needs budget, should be cut in explanation of why that shortfall should not be met; ii) budget that he, the judge, had accepted in evidence; and iii) his decision that she would have to adjust her expenditure to reduce those needs was a conclusion [which] required reasoning that is not in the judgment.
+he did not explain why she should live below the basic needs
+So the Court of Appeal allowed the wifes appeal by varying the order for periodical payments upwards from the annual sum of 13,200 to that of 17,292, backdated to the date of the judges judgment.
+It refused the husbands application for permission to appeal to it on the ground that his proposed appeal had no prospect of success.
+The husband filed a notice of appeal to this court.
+He challenged the increase in the order for periodical payments directed by the Court of Appeal.
+But he also purported to challenge its refusal to discharge the order for periodical payments; and, alternatively, its refusal to set a fixed period on the wifes continued receipt of them and/or to vary the amount of them downwards.
+In these respects he was, however, purporting to challenge the Court of Appeals refusal to permit him to appeal to itself on these grounds and, by section 54(4) of the Access to Justice Act 1999, no appeal can be brought against a refusal of permission.
+So the order of this court was to limit its permission for him to appeal to the single ground whether, in light of the fact that provision had already been made for the wifes housing needs in the capital settlement, the Court of Appeal had been entitled to interfere with the judges determination not to make full allowance for her need to pay rent in the continuing order for periodical payments.
+Unfortunately the husbands advisers considered that the terms of the limited grant of permission could in some way prove broad enough to enable them to make submissions at the hearing along the wider lines of his impermissible challenge to the Court of Appeals refusal to grant him permission to appeal to it.
+So at an early stage of the hearing the court had to re emphasise the limited ambit of its inquiry in this particular case.
+With the greatest of respect to the Court of Appeal, and with (I believe) a full appreciation of the heavy work load under which it currently labours, it erred in saying that the judge had given no reason for declining to increase the order for periodical payments so as to enable the wife to meet all her basic needs.
+The judge gave a clear reason which is summarised in paras 20 and 21 above.
+So the question which the Court of Appeal should have addressed, and which this court should now address, is the question set out in para 1 above.
+the Court of Appeal.
+First, Pearce v Pearce [2003] EWCA Civ 1054, [2004] 1 WLR 68.
+At the time of the original order in 1997 the wife had owned a flat in Chelsea free of mortgage.
+Later she sold the flat; depleted the proceeds by an unfortunate speculation in Ireland; and, upon returning to live in London, could only afford to buy a flat in Fulham subject to mortgage.
+The original order had also provided for the husband to make periodical payments to the wife; and the subsequent order under appeal in 2003 was to capitalise her entitlement to periodical payments, ie to discharge the order for them upon payment to her by the husband of a lump sum in lieu of them pursuant to section 31(7A) and (7B) of the Act.
+The major significance of the decision of the Court of Appeal lies in its approach to the exercise of capitalising an order for periodical payments.
+For present purposes, however, its significance lies in its removal of the wifes mortgage repayments from its calculation of the amount of the periodical payments to which, in the absence of capitalisation, she would then have been entitled and therefore of the amount of the lump sum to be paid by the husband in lieu of them.
+Thorpe LJ said at para 36 that the judge In addressing the question, the court must consider three earlier decisions of should not have allowed the wife to discharge her mortgage at the husbands expense.
+Such an indemnity violates the principle that capital claims compromised in 1997 could not be revisited in 2003.
+There is simply no power or discretion to embark on further adjustment of capital to reflect the outcome of unwise or unfortunate investment on one side or prudent or lucky investment on the other.
+Second, North v North [2007] EWCA Civ 760, [2007] All ER (D) 386 (Jul).
+In 1981 an order by consent had provided the wife with ownership of a mortgage free house in Sheffield and of ground rents which generated a comfortable income for her.
+The order had also included provision for the husband to make periodical payments to her in a nominal sum.
+In 2000 the wife sold her assets in England and moved to Sydney with relatively disastrous financial consequences, which led her to apply for an upwards variation of the order for periodical payments.
+The Court of Appeal set aside an order capitalising her entitlement to them in the sum of 202,000 and, although not visible in the transcript or in the report, apparently substituted a substantially lower figure.
+Thorpe LJ said: 32.
+In any application under section 31 the Applicants needs are likely to be the dominant or magnetic factor.
+But it does not follow that the respondent is inevitably responsible financially for any established needs.
+He is not an insurer against all hazards nor, when fairness is the measure, is he necessarily liable for needs created by the applicants financial mismanagement, extravagance or irresponsibility 33.
+Thus in the present case the wifes failure to utilise her earning potential, her subsequent abandonment of the secure financial future provided for her by the husband, her choice of a more hazardous future in Australia, together with her lifestyle choices in Australia, were all productive of needs which she had generated and for which the husband should not as a matter of fairness be held responsible in law.
+And third, Yates v Yates [2012] EWCA Civ 532, [2013] 2 FLR 1070.
+Under a consent order the wife had received a substantial lump sum on the basis that she would use half of it in discharging a mortgage on her home.
+In the event she had repaid only part of the mortgage debt and had invested in a non income bearing bond the sum which she had thus elected not to apply to full clearance of the mortgage.
+When, later, a judge came to capitalise her right to continuing periodical payments, he included in his calculation of her need the amount of interest payable by her in respect of the residual mortgage debt.
+The Court of Appeal held that the inclusion had been wrong.
+Thorpe LJ said: Lewison LJ said: 12.
+It seems to me little more than common sense that if a recipient of a lump sum twice the size of the mortgage on the final matrimonial home elects to hold back capital made available for the mortgage discharge in order to invest in a bond that bears no income, she cannot look to the payer thereafter for indemnity or contribution to the continuing mortgage interest payments.
+That seems to me to be an absolutely self evident point. 21. the need to pay the mortgage at all arose from her own choice not to apply the lump sum in discharging the existing mortgage The financial consequences of her investment choice are her responsibility.
+It is wrong in principle for the husband to have to continue to fund the mortgage.
+Mr Feehan QC, who, like Ms Dunseath, nobly appears for the wife without fee, seeks to distinguish the mortgage instalments disallowed in the cases of Pearce and Yates from payments of rent.
+I see no relevant distinction.
+He also submits that, unlike the present case, all three of the decisions concerned the capitalisation of an entitlement to periodical payments and that what was there rightly disallowed was the insinuation into the lump sum thus payable of a sum more reflective of an impermissible second claim for capital provision than of a permissible claim for conversion into capital of an income entitlement.
+Mr Feehan relies in particular on the statement of Thorpe LJ in the Pearce case, quoted at para 36 above.
+I reject the submission.
+As the Court of Appeal valuably established in that case, the first step in the exercise of capitalisation is a calculation of the amount of periodical payments to which, in the absence of capitalisation, the payee would then have been entitled.
+It was in the course of making this calculation that in the three decisions the objectionable elements of the claim were disallowed.
+Even had there been no capitalisation of the entitlement to periodical payments, those elements would therefore have been disallowed in quantifying the amount of the ongoing order for periodical payments.
+The cases of Pearce, North and Yates were correctly decided.
+The answer to the question posed in para 1 above is yes.
+By its terms that question asks only whether a court would be entitled, rather than obliged, in the circumstances there identified to decline to require the husband to fund payment of the rent.
+Its reference to the courts entitlement to do so serves to respect the wide discretion conferred upon it by section 31(1) and (7) of the Act in determining an application for variation of an order for periodical payments.
+But, in the passages quoted above, the Court of Appeal has expressed itself in forceful terms; and a court would need to give very good reasons for requiring a spouse to fund payment of the other spouses rent in the circumstances identified by the question.
+A spouse may well have an obligation to make provision for the other; but an obligation to duplicate it in such circumstances is most improbable.
+The judge was clearly entitled to decline to vary the order for periodical payments so as to require the husband to pay all of the wifes rent.
+The order of the Court of Appeal should be set aside and his order restored.
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+The appellant, Nottingham City Council (Nottingham), is the licensing authority for those houses in multiple occupation (HMOs) in its district which are licensable under Part 2, Housing Act 2004.
+This appeal concerns two HMOs, namely 44, Rothesay Avenue, Lenton, Nottingham NG7 1PU and 50, Bute Avenue, Lenton, Nottingham NG7 1QA.
+Both are owned by the second respondent, Trevor Parr Associates Ltd, which carries on the business of providing accommodation for students.
+The first respondent Dominic Parr is the managing director of the second respondent and the manager of the properties.
+Nottingham appeals against the decision of the Court of Appeal dated 29 March 2017, dismissing its appeal against the decision of the Upper Tribunal (Lands Chamber) dated 9 February 2016, dismissing its appeals against decisions of the First tier Tribunal dated 5 November 2014 (44, Rothesay Avenue) and 6 May 2015 (50, Bute Avenue) respectively, allowing the respondents appeal against the imposition by Nottingham of certain HMO licensing conditions.
+On this appeal to the Supreme Court the respondents have not appeared and have not been represented.
+In these circumstances, at the request of the Court an Advocate to the Court was appointed in order to argue the grounds for resisting the present appeal and we are grateful to Mr Martin Chamberlain QC for performing this role.
+In addition, the Secretary of State for Housing, Communities and Local Government (the Secretary of State) has intervened in this appeal.
+We are grateful to all counsel for their submissions.
+Legislation
+The Housing Act 2004, Part 2 replaced the previous law on HMOs which was to be found in the Housing Act 1985, Part XI (the 1985 Act).
+The 1985 Act defined an HMO as a house which is occupied by persons who do not form a single household but left the word household undefined.
+In Barnes v Sheffield City Council (1995) 27 HLR 719 the Court of Appeal set out a number of factors relevant to determining whether occupants were living together as a single household.
+It held that in the particular circumstances of that case a group of students sharing a house constituted a single household.
+The 1999 consultation paper, Licensing of Houses in Multiple Occupation England (DETR, 1999), which preceded the 2004 Act observed (section 2, para 24) that, as a result of this judgment, housing authorities were wary of attempting to use their HMO powers in shared houses, particularly those occupied by students.
+The 2004 Act was intended, inter alia, to extend the regulatory scheme of HMOs to include shared student accommodation, subject to certain exceptions.
+The 2004 Act introduced for the first time a system of licensing of HMOs authorising occupation of the house concerned by not more than a maximum number of households or persons specified in the licence (section 61(2)).
+A building or part of a building will qualify as an HMO if the living accommodation is occupied by persons who do not form a single household (section 254(2)(b), (3) and 4(c)) and if occupied by those persons as their only or main residence or they are to be treated as so occupying it (section 254(2)(c), (3) and 4(d)).
+Section 258 makes provision for determining when persons are to be regarded as not forming a single household for the purposes of section 254.
+They are to be so regarded unless they are members of the same family or their circumstances are of a description specified in regulations (section 258(2)).
+Such provision is made in the Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006 (SI 2006/373) (the 2006 Regulations).
+Section 259 makes provision for determining when persons should be treated as occupying premises as their only or main residence.
+In particular, a person is to be so treated, inter alia, if premises are occupied by the person as the persons residence for the purpose of undertaking a full time course of further or higher education (section 259(2)(a)).
+If an application for a licence is made to the local housing authority, it may grant a licence if it is satisfied as to the matters mentioned in section 64(3).
+Those requirements include that the house is reasonably suitable for occupation by not more than the maximum number of households or persons [specified in the application or decided by the authority] or that it can be made so suitable by the imposition of conditions under section 67 (section 64(1), (2), (3)(a)).
+Section 67 provides in material part: 67 Licence conditions (1) A licence may include such conditions as the local housing authority consider appropriate for regulating all or any of the following the management, use and occupation of the house (a) concerned, and (b) its condition and contents. (2) Those conditions may, in particular, include (so far as appropriate in the circumstances) (a) conditions imposing restrictions or prohibitions on the use or occupation of particular parts of the house by persons occupying it; (5) A licence may not include conditions imposing restrictions or obligations on a particular person other than the licence holder unless that person has consented to the imposition of the restrictions or obligations. (6) A licence may not include conditions requiring (or intended to secure) any alteration in the terms of any tenancy or licence under which any person occupies the house.
+Guidance
+At the material time, minimum sizes of bedrooms in HMOs were not prescribed in legislation.
+However, Nottingham issues guidance to its housing officers on the operation of this licensing system.
+For present purposes the relevant document is HMO Amenity Guidance 3 Space Provision for Licensable and Non Licensable HMOs.
+This states that in the case of bedrooms in single occupation in HMOs where there is adequate dining space elsewhere and where cooking facilities are not provided in the room the minimum space provision is eight square metres.
+A general note adds: The dimensions and areas specified shall normally be regarded as the minimum, particularly with regard to new proposals.
+However it is recognised that existing buildings cannot always achieve these minima.
+A degree of flexibility will sometimes be possible if other compensating features are present.
+Conversely it should be noted that irrespective of the dimensions, the shape and useable living space of any room is a determining factor in the calculation of the maximum number of people for which it is suitable.
+In carrying out its measurements Nottingham disregards all space with a floor to ceiling height of less than 1.53 metres.
+Nottingham participates with other housing authorities in the East Midlands in an organisation named East Midlands Decent and Safe Homes which also sets out amenity standards for HMOs in Amenity and Space in HMOs: A Landlords Guide (the East Midlands DASH Guide).
+This recommends adopting eight square metres as the minimum size for bedrooms of this sort but also states: The standards are usually regarded as a MINIMUM but are a guide only.
+Other factors or compensatory features will be taken into account when inspecting a property, therefore allowing for a degree of flexibility in certain circumstances.
+These factors could include the shape of the usable living space, or the needs and wishes of the occupants. (Original emphasis)
+The properties
+44, Rothesay Avenue and 50, Bute Avenue are both terraced houses of traditional brick construction with a slate roof.
+Both are used for letting to students and in each case the attics have been converted into bedrooms.
+In each property the front attic bedroom has a sloping ceiling which reduces the area regarded by Nottingham as useable living space below eight square metres.
+At 44, Rothesay Avenue the front attic room has a total floor area of 9.75 square metres but, due to the sloping ceiling, only 5.89 square metres has a floor to ceiling height of 1.53 metres or more.
+The front attic room at 50, Bute Avenue has a floor area of approximately 11 square metres of which only 6.89 square metres has a floor to ceiling height of 1.53 metres or more.
+Both the Upper Tribunal and the Court of Appeal quoted the following description of the attic bedroom at 44, Rothesay Avenue by the First tier Tribunal: The area of the relevant bedroom having a height of less than 1.53m was utilised to accommodate a desk and for storage.
+The relevant room includes a double bed, desk, chest of drawers, bedside table, bookshelves and a built in wardrobe.
+The pitch of the roof slope was such that it appeared possible to use the desk without undue risk of collision and any such risk could be reduced further by placing the chair in the area beneath the pitched roof window thereby eliminating the risk of collision when rising from the chair.
+The head of the bed was fitted under that part of the room with reduced height.
+Risk of collision could be avoided by turning the bed through 180.
+The risk of collision when changing the bed linen could be avoided by pulling the bed out of the area with reduced headroom prior to performing the task.
+The assessment of the attic bedroom at 50, Bute Avenue was to similar effect.
+Nottinghams decisions and the appeals
+In each case Nottingham granted a new HMO licence which imposed a condition prohibiting the use of the attic bedroom for sleeping.
+The licence for 44, Rothesay Avenue provided: [T]he second floor front bedroom be prohibited for the use of sleeping.
+This room will not be allowed for the use for sleeping until it has provided by way of alteration, adaptation or extension a useable floor surface area of eight square metres within a minimum ceiling height of 1.53 metres below the sloping ceiling from the floor. (para 36) The licence for 50, Bute Avenue limited the number of persons permitted to occupy the HMO to a maximum of five and provided: The second floor front bedroom is not to be used as a sleeping room, except where it is let in combination with another room within the property in such a way as to provide the occupant with the exclusive use of two rooms. (para 38) This licence further provided that the restriction on sleeping in the room might be removed if alterations were carried out to increase the size of the room to eight square metres (excluding any area where the ceiling height is below 1.53m).
+In each case the respondents appealed to the First tier Tribunal against the imposition of these conditions.
+Each of the First tier Tribunals referred in its decision to the guidance issued by Nottingham and, in particular, to the general note quoted at para 7 above.
+Each considered that Nottinghams guidance on space provision was reasonable as general guidance but noted that some flexibility was permitted if other compensating features were present.
+Each considered that in each of the rooms the area with the reduced headroom was of some value for the uses described.
+Furthermore, each considered that in each of the HMOs the provision of communal living space was significantly larger than the minimum contemplated by Nottinghams requirements for additional living space.
+In each case the Tribunal regarded this over provision as a compensating feature which could be taken into account in applying Nottinghams own guidance.
+In each case the Tribunal concluded that the attic rooms were adequate as study/bedrooms where cohesive living is envisaged and that there were sufficient compensating features in the HMOs to make them suitable for student or similar cohesive occupation for six persons in six households.
+Accordingly, in the licence for 44, Rothesay Avenue the First tier Tribunal substituted an alternative condition, namely that: The second floor front bedroom may only be used for sleeping accommodation by a person engaged in full time education and who resides in the dwelling for a maximum period of ten calendar months over a period of one year.
+No similar condition was introduced by the First tier Tribunal which heard the appeal in relation to 50, Bute Avenue, but it justified its conclusion by stating that there are sufficient compensating features in the property to make it suitable for students or similar cohesive occupation for six persons in six households.
+In dismissing Nottinghams further appeal in that case, however, the Upper Tribunal directed that the same condition be included in the licence for 50, Bute Avenue.
+On appeal to the Upper Tribunal (Lands Chamber) both appeals were dismissed.
+Martin Rodger QC, Deputy President, referred to examples of guidance by local housing authorities modifying space standards for particular modes of occupation which, he considered, recognise that certain categories of occupier may wish to occupy accommodation in a particular way.
+The purpose of all conditions under section 67 was to ensure that the HMO is suitable for the number of persons permitted to occupy it and there was therefore nothing unlawful in formulating a condition applicable to a particular mode of occupation by a category of occupants if the house was suitable for them in greater numbers than it would be for a different mode of occupation.
+He rejected Nottinghams submission that the Act requires that an HMO must be capable of occupation by all potential occupants.
+Referring to the substituted condition in the case of 44, Rothesay Avenue, he observed that the condition was formulated on the basis that the property was one where cohesive living is envisaged and that by cohesive living the First tier Tribunal clearly had in mind the level of shared activity and social interaction to be expected in a shared house or Category B HMO, as described at greater length in the policy documents of other local authorities.
+In his view, the basic idea of a house shared by a number of individuals, not forming a family but who nevertheless wish to share communal living facilities and enjoy a significant level of social interaction, is readily understood.
+With regard to the terms of the condition he observed: I am satisfied that there is nothing unlawful in a condition restricting the use of sleeping accommodation in part of an HMO to a person in full time education, if the decision maker is satisfied that, looked at as a whole, the HMO is suitable for the number of households specified in the licence.
+An alternative condition, perhaps more closely reflecting the reason for permitting the use of a room smaller than would normally be acceptable, might require that the occupiers be members of a group who intend to share the communal living space, but I do not think the reference to students makes the condition unlawful.
+The Court of Appeal (Longmore, Lewison and Briggs LJJ) upheld the decision of the Upper Tribunal: [2017] PTSR 879.
+The Court of Appeal considered that the power to impose conditions permitted a condition defined by reference to the general characteristics and activities of an occupier.
+A restriction of occupation to occupation by students was a restriction on occupation by persons.
+The Court of Appeal rejected submissions that the condition imposed by the First tier Tribunal was irrational and incapable of effective enforcement.
+However, it varied the licences to include two further conditions: that the communal space on the ground floor, (i) comprising a kitchen/diner and living room area, be kept available for communal living space only; (ii) students engaged in full time education.
+that no bedrooms may be let to persons other than
+Nottingham now appeals to the Supreme Court, by leave granted by this Court, on the following grounds: Ground 1: The power to impose conditions under sections 64 and 67, Housing Act 2004, in order to make an HMO suitable for a particular number of households or persons, cannot be used so as to limit the class of persons for whom the HMO is suitable.
+Ground 2: The conditions imposed by the Tribunals and Court of Appeal are irrational and unenforceable.
+Ground 1
+Submissions of the parties
+On behalf of Nottingham, Mr Andrew Arden QC submits that the conditions imposed seek to make an exception for full time students otherwise than in the circumstances permitted by the legislation.
+Section 64(3)(a) requires the authority to be satisfied that the house is reasonably suitable for occupation by not more than the maximum number of households or persons mentioned in subsection (4) or that it can be made so suitable by the imposition of conditions under section 67.
+In his submission the legislation, at this stage, is unequivocal and concerned only with numbers.
+Furthermore, section 67(2)(a) which permits conditions imposing restrictions or prohibitions on the use or occupation of particular parts of the house by persons occupying it does not permit conditions restricting who may occupy an HMO.
+The references elsewhere in the statute to the characteristics of occupants do not support setting conditions by reference to such characteristics.
+In the alternative, the proposed conditions here seek, contrary to the policy of the legislation, to introduce an exception to its operation for a category of persons or a defined set of circumstances.
+A condition which restricts the occupation of an HMO by reference to a class of occupier does not achieve the purpose of improving or maintaining standards and has the effect of making accommodation unavailable to a section of the rental market.
+That standards may be lowered for certain categories otherwise than as specified by Parliament is the antithesis of the legislative purpose.
+In the further alternative, treating occupation by students in this way is contrary to the statutory object of Part 2 of the 2004 Act which was intended in part to reverse the decision of the Court of Appeal in Barnes v Sheffield City Council.
+On behalf of the Secretary of State Mr Jonathan Moffett QC accepts that, in an appropriate case, section 67 does empower a housing authority to impose a condition on a licence which restricts the occupation of all or part of an HMO to occupation by a particular class of person.
+However, he submits that a housing authority may not, on the basis of such a condition, grant a licence for an HMO which authorises the HMO to be occupied by a greater number of households or persons than the authority would otherwise authorise.
+In particular, he criticises the approach of the Court of Appeal on the grounds that it allows for the application of different standards for different classes of person and assumes that a particular class of occupier will live in the HMO in a way that requires a lower standard of accommodation than other classes.
+He submits that section 64(3)(a) refers to conditions that make the house reasonably suitable for occupation by the maximum number of households or persons and does not refer to conditions that make the households or persons suitable to occupy the house.
+Mr Chamberlain, as Advocate to the Court, has at the Courts request advanced the submissions which might have been made by the respondents had they taken part in this further appeal.
+He submits that section 67 permits the imposition of the conditions in question here.
+First, he submits that the conditions imposed on the letting of each of the properties were, on their face, conditions regulating the use of the second floor front bedroom and were correctly characterised as such.
+However, Parliament chose to permit conditions regulating management, use and occupation of an HMO.
+On a natural reading, a condition regulating the occupation of a house is apt to include one that governs how or by whom it may be occupied.
+Contrary to the submissions of Nottingham, the Court of Appeal decision does not introduce an exception to the operation of the legislation for a category of persons or a defined set of circumstances, nor does it allow occupation at a lower standard than would otherwise have been permitted in the circumstance of the HMOs in question.
+Discussion
+Section 64(3)(a) indicates that the purpose of the imposition of conditions is to make a house reasonably suitable for occupation by not more than the maximum number of households or persons specified in the application or decided by the housing authority.
+The question as to what sort of conditions may be imposed is governed by section 67.
+Section 67(1)(a) provides that a licence may include such conditions as the local housing authority considers appropriate for regulating all or any of the management, use and occupation of the house concerned.
+Section 67(1) is followed in section 67(2) by a non exhaustive list of permitted conditions including in section 67(2)(a) conditions imposing restrictions or prohibitions on the use or occupation of particular parts of the house by persons occupying it.
+Considering these words in their natural meaning, they extend sufficiently widely to include the conditions with which we are concerned.
+I am persuaded that the words use and occupation in section 67(1) are not used as a composite term.
+Section 67(2)(a) refers disjunctively to the use or occupation of particular parts of the house.
+The inclusion of occupation in addition to use must have been intended to extend the scope of permissible conditions.
+It may well be, as Mr Chamberlain submits, that the conditions in respect of each of these houses related to the use of the attic bedrooms.
+However, it seems clear that they relate to the occupation of those rooms.
+As Mr Chamberlain put it, on a natural reading a condition regulating the occupation of a house is apt to include one that governs how or by whom it may be occupied.
+In my view, these conditions seek to regulate the occupation of particular parts of the house by persons occupying it and fall squarely within the natural meaning of section 67(2)(a).
+It is, however, necessary to stand back from the plain meaning of these provisions and to consider whether such a reading is consistent with the object of the legislation.
+In this regard it is significant that elsewhere in Part 2 of the 2004 Act the manner of occupation of a house and the general characteristics of occupants are considered relevant in contexts connected with HMOs and with housing standards generally.
+In some instances, the personal occupation or activities of an occupier will have a bearing on whether the legislation applies.
+Thus, for example, persons carrying out domestic services are regarded as occupying the same household as their employer if they are occupying rent free tied accommodation in the same building (2006 Regulations, regulation 3); a full time student is regarded as occupying accommodation as his only or main residence if it is occupied for the purpose of his full time course (section 259(2)(a)); and some religious communities are outside the HMO scheme if their principal occupation is prayer, contemplation, education or the relief of suffering (Schedule 14, paragraph 5).
+Therefore, in certain circumstances the operation of the legislative scheme will depend on the personal characteristics of the occupants or their activities.
+In the present case the Deputy President of the Upper Tribunal drew attention in his judgment to the fact that prior to the present legislation, under the 1985 Act, regard was had to the suitability of an HMO for occupation by a particular category of occupier.
+Thus, in 1986 the Institution of Environmental Health Officers published guidance on amenity standards for HMOs which distinguished between different categories of HMOs.
+In particular, Category A comprised houses occupied as individual rooms where there was some exclusive occupation and some sharing of amenities but each occupant lived otherwise independently of all others.
+Category B comprised houses occupied on a shared basis which would normally be occupied by members of a defined social group, for example students or a group of young single adults.
+In such houses the occupants each enjoyed exclusive use of a bedroom but would share other facilities including a communal living space.
+Having distinguished between these categories in this way on the basis of the manner of occupation, the guidance then went on to set out different specifications for each category.
+I note, moreover, that a revised version, the 1994 Amenity Standards, remained current until very recently and was available on the website of the successor body, the Chartered Institute of Environmental Health.
+A similar approach can be detected in certain guidance issued following the implementation of the current legislation.
+The Deputy President of the Upper Tribunal in his judgment in the present case drew attention to the East Midlands DASH Guide produced by housing authorities in the East Midlands including Nottingham (see para 8, above) which recognises that different facilities may be required for different modes of occupation.
+It provides that in HMOs where the occupants tend to live separately there should be a sink/wash hand basin within the living units.
+Similarly, there was before the Court of Appeal in the present case a note prepared by Mr Robert Fookes, counsel for the respondents, setting out extracts from the current guidance issued by a selection of housing authorities responsible for accommodation likely to be used by students attending Oxford, Cambridge and Russell Group universities.
+In half of these standards the housing authorities distinguish between students and other occupants.
+As the Deputy President of the Upper Tribunal observed, it is obvious that nothing in this guidance can change the meaning of the present legislation.
+Nevertheless, I agree with him that it provides a useful point of reference.
+It may be thought that, as a matter of common sense, the manner of occupation of a room and the type of occupant may have a bearing on the suitability of a particular room for a particular use and that this is reflected in the guidance referred to above.
+That guidance also supports the view that in practical terms the availability of communal living space may be capable of compensating for an undersized bedroom.
+However, the critical question is whether the approach reflected in such guidance is consistent with the present legislation.
+At the heart of the appeal on this ground lie two submissions by Mr Arden on behalf of Nottingham.
+First, he submits that the conditions in issue here seek, contrary to the policy of the legislation, to introduce an exception to its operation for a category of persons or a defined set of circumstances.
+It is clear that Part 2 of the 2004 Act is intended to apply to shared student houses.
+One purpose behind the 2004 Act was to reverse the effect of Barnes v Sheffield City Council as a result of which many shared student houses fell outside the scope of the 1985 Act.
+Express provision is made in section 259(2)(a) in respect of occupation for the purpose of undertaking a full time course of further or higher education and the effect of section 254(5) and Schedule 14, paragraph 4 is, by way of exception, to remove from this regulatory scheme certain buildings occupied by students.
+Contrary to Nottinghams submission, however, I do not consider that the three conditions with which we are concerned have the effect of undermining this purpose.
+These conditions do not remove shared student houses from the regulatory scheme.
+On the contrary, as the decisions of the First tier Tribunal in the present cases demonstrate, the standard of accommodation available in a shared student house will be inspected and subjected to rigorous examination and the house will be licensed as suitable for a stipulated number of occupants only if it is considered to be so suitable (if necessary subject to conditions) by the housing authority for the area or, on appeal, by a specialist tribunal.
+Secondly, Mr Arden submits that there is no doubt that the purpose in imposing the conditions in the present case was to allow occupation at a lower standard or by a greater number than would otherwise have been permitted in the circumstances of the HMOs in question.
+I should observe at this point that it is clear that Nottingham in bringing this appeal and the Secretary of State in intervening have clearly been motivated by a wish to ensure that HMOs provide acceptable living conditions, to protect the vulnerable or potentially vulnerable groups that tend to occupy HMOs and to avoid an interpretation of the legislation as a result of which lower standards are to be considered appropriate for particular groups such as students.
+That is commendable.
+However, I consider that their concern is unfounded.
+The imposition of conditions such as those imposed by the Tribunals and the Court of Appeal in the present case do not have that effect.
+It is entirely appropriate, when considering the suitability of accommodation in an HMO for a particular purpose, to have regard to the mode of occupation.
+If the house is to be occupied by a group living together cohesively, each having his or her own bedroom but sharing other facilities including a kitchen/diner and a living room, the availability of those additional facilities is a material consideration.
+In these circumstances the mode of occupation means that the shared facilities will benefit all the occupants and, as a result, this may compensate for a bedroom which is slightly smaller than the recommended minimum.
+By contrast, where occupants of an HMO each live independently of all others, sharing only bathroom, toilet and kitchen facilities, any communal living space made available will not benefit the occupants in the same way because of their different living arrangements.
+It seems to me to be entirely appropriate, therefore, that in considering the suitability of accommodation in an HMO regard should be had to the proposed mode of occupation.
+Furthermore, in appropriate cases effect may be given to such considerations by the imposition of conditions in the licence.
+This is not inconsistent with the statutory scheme.
+As the Deputy President of the Upper Tribunal pointed out in his judgment, certain types of accommodation may lend themselves to different styles of occupation and it would be surprising if the 2004 Act did not reflect that.
+The various guidelines referred to earlier in this judgment refer in different ways to the need for flexibility in their application.
+In that regard, account should be taken of the proposed mode of occupation where it is likely to influence the quality of the accommodation made available to the occupant.
+It must be emphasised that this does not permit the application of lower standards than would otherwise be applicable.
+On the contrary, it is simply that there will be certain circumstances in which, as a matter of common sense, it will be appropriate to have regard to the mode of occupation when applying the same objective standards which apply to all HMOs.
+For these reasons, I consider that the power to impose conditions under sections 64 and 67, Housing Act 2004, in order to make an HMO suitable for a particular number of households or persons, can be used so as to limit the class of persons for whom the HMO is suitable.
+Finally, I should draw attention to the fact that there exist other mechanisms to maintain standards of accommodation in HMOs, in particular the imposition of mandatory conditions under Schedule 4 of the 2004 Act.
+In this regard, I note that the Licensing of Houses in Multiple Occupation (Mandatory Conditions of Licences) (England) Regulations 2018 (2018 No 616) (the 2018 Regulations), came into force on 1 October 2018 and introduced additional mandatory conditions in respect of floor area.
+As a result a licence must now include a condition requiring the licence holder to ensure that the floor area of any room in the HMO used as sleeping accommodation by one person over ten years is not less than 6.51 square metres (paragraph 2, inserting Schedule 4, paragraph 1A(2)(a)).
+Ground 2
+Submissions of the parties
+On behalf of Nottingham, Mr Arden submits that if there is a power to impose a condition based on a class of occupier, the conditions in the present case as directed by the Tribunals and the Court of Appeal are irrational, both in the conventional sense and in the sense that they are not effective to achieve their purpose, and incapable of enforcement.
+While the conditions are designed to secure occupation only by students, this, he submits, is not necessarily the same as cohesive living.
+The judgments below are said to have proceeded on the basis of an image of student life which is simply not true of all or necessarily most students, and this is an irrational basis for determining who may or may not occupy an HMO.
+The conditions go no further than setting up the possibility of sharing.
+In addition, it is said that the condition limiting occupation for a maximum period of ten calendar months over a period of one year is irrational.
+Either the rooms are or are not suitable to be used as sleeping accommodation all the year round.
+Nottingham objects that the condition that the attic rooms be occupied for only ten months over the course of a year could not practicably be monitored.
+It also maintains that while it is possible to ensure that occupants are all in full time education, that requirement cannot in practice be enforced.
+The Secretary of State has taken no position on this ground of appeal.
+Mr Chamberlain submits that, while not all students live in the same way, the proxy employed by the condition is sufficiently precise.
+Moreover, the First tier Tribunals which heard the initial appeals were well placed to judge whether cohesive living was the norm among students in the area where the properties were located.
+With regard to enforceability, he takes issue with Nottingham.
+Discussion
+I agree with the Court of Appeal that the conditions imposed by the Tribunals were deficient in that they failed to require any part of the HMO to be available for communal living and did not require the bedrooms other than the front attic bedrooms to be let to students.
+That deficiency is, however, cured by the further conditions introduced by the Court of Appeal.
+The reasoning of the First tier Tribunals and the Upper Tribunal in this case makes clear that the intention was to restrict occupation to students because they were considered to be a category of occupants who were likely to live in a cohesive manner.
+In the Upper Tribunal the Deputy President observed that by cohesive living the First tier Tribunal clearly had in mind the level of shared activity and social interaction to be expected in a shared house or Category B HMO, as described at greater length in the policy documents of other local authorities.
+The first issue for consideration under this ground is therefore, as Mr Chamberlain put it, whether a condition limiting the occupation of each of the houses to occupation by persons engaged in full time education is a sufficiently precise proxy for occupation by persons living together cohesively.
+All students are individuals and their respective activities and life styles will, no doubt, vary considerably.
+Nevertheless, it does seem to me that the normal state of affairs generally to be expected when students share a student house is that there will be a high level of social activity and social interaction among them and that they will all make extensive use of the shared living facilities.
+There can be no guarantee that any given student occupier will make full use of the shared facilities, but the availability of such facilities, emphasised by the Court of Appeal, coupled with the normal expectation of cohesive living in a student house makes it reasonable to adopt this proxy in this context.
+It is also significant that the members of the First tier Tribunals in these cases, with their experience of student accommodation in Nottingham, considered this a reasonable approach.
+While I agree with the Deputy President of the Upper Tribunal that an alternative condition, perhaps more closely reflecting its rationale, might require that all occupants be members of a group who intend to share the communal living space, the proxy adopted is sufficiently precise.
+Moreover, the alternative might give rise to difficulties of enforcement.
+The requirement that the attic rooms may only be occupied for ten months in each year was clearly intended to reinforce the requirement that occupation be by full time students.
+If the latter requirement is lawful, the former is strictly unnecessary.
+I consider that the requirement limiting occupation to ten months in each year is irrational.
+If a room is suitable for occupation for sleeping for ten months in the year, it is suitable for such occupation for the entire year.
+Moreover, full time students often require accommodation for the entire year.
+In these circumstances, it is unnecessary to consider whether this requirement is enforceable.
+I would vary the conditions imposed in respect of each property to delete the requirement that the attic rooms may only be occupied for ten months in each year.
+Finally, it is said on behalf of Nottingham that while it is possible to ensure that occupants are all in full time education, it is not in practice possible to enforce the requirement.
+Nottingham points to the 12 months assured shorthold tenancy agreements employed by the respondents.
+Each requires the tenant to ensure that the propertys strict purpose as a set of lets to students of the University is not prejudiced and also contains a clause which entitles the landlord to re enter if the tenant ceases to be a student of the university.
+However, Nottingham draws attention to the practical difficulties of evicting a tenant in these circumstances which, it is said, would make it practically impossible to enforce the conditions in the way envisaged by the legislation.
+I note that if a landlord tries but fails to evict tenants who have ceased to be full time students, for example because the court considers it unreasonable to make the order, the landlord may well have a reasonable excuse for permitting the occupants to remain and a defence under section 72(5) of the 2004 Act to the offence of failing to comply with the licence condition.
+However, the sanction of revocation of the licence will be available which, in itself, should be a sufficient sanction.
+Conclusion
+For these reasons, and subject to the deletion of the requirement of occupation for only ten months in each year, I consider that the conditions imposed by the Tribunals and the Court of Appeal, considered cumulatively, in respect of 44, Rothesay Avenue and 50, Bute Avenue, respectively, were entirely lawful.
+Accordingly, I would vary the conditions to delete the requirement of occupation for only ten months in each year but would otherwise dismiss the appeal.
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+The Home Secretary determines to exercise his power to remove a foreign national from the UK.
+The foreign national contends that the determination is unlawful on the ground that her removal would violate her right to respect for her private life under article 8 of the European Convention on Human Rights and section 6(1) of the Human Rights Act 1998 (the 1998 Act).
+Section 117B(5) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) provides that little weight should be given to a private life which she established at a time when her immigration status was precarious.
+What does the word precarious mean in this context? This is the primary question posed by the present appeal.
+Introduction
+The foreign national is Ms Rhuppiah.
+On 22 August 2014, in the First tier Tribunal, First tier Tribunal Judge Blundell (to whom I will refer as Judge Blundell) reluctantly dismissed her challenge under article 8 to the Home Secretarys determination, dated 6 June 2013, to remove her from the UK.
+Judge Blundell concluded that her private life in the UK had been established at a time when her immigration status had been precarious within the meaning of section 117B(5), which had come into force less than a month earlier; and he considered himself in effect bound by the subsection to dismiss her appeal against the determination.
+Her further appeals to the Upper Tribunal and then to the Court of Appeal both failed.
+By its decision dated 2 August 2016, [2016] EWCA Civ 803, [2016] 1 WLR 4203, the Court of Appeal (Sales LJ, who gave the substantive judgment, and Moore Bick LJ and Sir Stephen Richards, who agreed with it) upheld Judge Blundells conclusion that the establishment of Ms Rhuppiahs private life in the UK had occurred at a time when her immigration status had been precarious.
+Now she appeals against the decision of the Court of Appeal.
+Within the well known structure of article 8, the primary question arises as part of the inquiry into whether the proposed interference with Ms Rhuppiahs private life in the UK is proportionate.
+Therefore, in determining this appeal, this court, like the Upper Tribunal and the Court of Appeal, must ask itself whether Judge Blundell was wrong to hold that at the relevant time her immigration status had been precarious: see the judgment of Lord Carnwath in R (R) v Chief Constable of Greater Manchester Police [2018] UKSC 47, [2018] 1 WLR 4079, paras 53 to 64.
+As it happens, Ms Rhuppiahs appeal has recently become academic.
+This occurred on 9 February 2018; and explanation of it requires reference to the Immigration Rules HC 395 (the rules).
+The Home Secretary has set out in the rules, indorsed by Parliament, the provisions which, in his opinion reflective of his policy, should in principle govern his determination of claims to resist removal from the UK on the part of those in breach of immigration laws by reference to their right to respect for their private or family life under article 8.
+He recognises, however, that his obligation under section 6 of the 1998 Act, like that of a court hearing an appeal against his determination when based on article 8, is to act compatibly with rights under article 8 and that such compatibility may not always coincide with compatibility with his rules.
+So, like the courts, the Home Secretary has to allow for the possibility that a person may be entitled to resist removal under article 8 even when he or she cannot do so under the rules.
+But article 8 itself, as interpreted by the European Court of Human Rights (the ECtHR), confers upon the relevant policy maker, who in the UK is the Home Secretary, a limited discretion in relation to the determination of claims made under it.
+So, when a person claims to resist removal by reference to article 8 outside the rules, the Home Secretary is entitled, and a court hearing an appeal against his determination is required, to weigh in the balance against the claim the fact that it could not have succeeded under the rules: see the judgment of Lord Reed in R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11, [2017] 1 WLR 823, at paras 46 and 47.
+In these proceedings Ms Rhuppiah has been resisting removal by reference to article 8 outside the rules.
+What happened on 9 February 2018 was that the Home Secretary decided that she had recently become able to resist removal by reference to article 8 under the rules.
+As I will explain, Ms Rhuppiah entered the UK on 16 September 1997 and has lived here continuously ever since.
+Paragraph 276ADE(1) of the rules specifies the requirements to be met by an applicant for leave to remain in the UK on the ground of private life in the UK; and they include, at (iii), that he or she has lived continuously in the UK for at least 20 years.
+It follows that on 16 September 2017 Ms Rhuppiah began to satisfy the requirement at (iii); she also satisfied the other requirements.
+Paragraph 276BE(1) provides that, if the requirements of para 276ADE(1) are satisfied, the Home Secretary may grant leave to remain in the UK for up to 30 months; and para 276DE provides that, if an applicant has remained in the UK with continuous leave on the ground of private life for at least ten years, he or she may be granted indefinite leave to remain.
+Thus it was that by letter dated 9 February 2018, the heading of which referred to Private Life Rules, the Home Secretary (to whom, for convenience, I will throughout refer as male) informed Ms Rhuppiah that he had granted her leave to remain in the UK for 30 months; that she could apply for further limited leave prior to the end of that period; and that, in the event that she were to complete at least ten years of continuous residence pursuant to leave to remain on the ground of her private life, she might then be eligible for a grant of indefinite leave to remain in the UK.
+The result is that the Home Secretary then granted to Ms Rhuppiah all that she could have hoped to achieve in the present proceedings.
+Thought then turned to the utility of any further prosecution of the present appeal.
+In the event the court agreed with the parties that the appeal should proceed.
+The court agreed that it was of general importance for it to offer a definitive interpretation of the word precarious in section 117B(5) of the 2002 Act.
+It is also now clear, as both parties agree, that in any event the First tier Tribunal (and indeed the Court of Appeal) fell into error in a different respect and that, irrespective of whether it was material, the error requires to be rectified: see paras 51 to 57 below.
+So the appeal has proceeded.
+Were this court to conclude that the First tier Tribunal had been wrong in a material respect to dismiss Ms Rhuppiahs appeal against the Home Secretarys determination dated 6 June 2013, it would allow her appeal in the normal way and set aside the tribunals order.
+That would render Ms Rhuppiahs appeal against it undecided.
+But there is now no need for it to be decided.
+So the court would not remit it to the tribunal for fresh determination.
+The Facts
+The relevant facts can be taken from a determination of conspicuous clarity and sensitivity made by Judge Blundell following a substantial oral hearing.
+Ms Rhuppiah is a Tanzanian national, now aged 45.
+She lived in Tanzania until 1997, when she entered the UK with leave to reside here as a student for three months.
+Her mother and one of her brothers still reside in Tanzania.
+Her father works for the UN in Sudan and regularly sends money to the UK for her support.
+Her other brother lives in Basingstoke; and he has a daughter, aged nine, with whom she is on close terms.
+There would, however, be no significant obstacle to the re integration of Ms Rhuppiah into society in Tanzania.
+The Home Secretary granted further leave to Ms Rhuppiah to reside in the UK as a student on no less than 12 occasions.
+The final grant expired on 30 November 2009.
+But six of these further grants were made pursuant to applications made after the previous leave had expired.
+Responsibility for the delay usually lay with the college to which Ms Rhuppiah had entrusted the task of making the applications on her behalf.
+In making her applications for further leave to reside in the UK as a student, Ms Rhuppiah was required to demonstrate an intention to leave the UK at the end of her studies.
+On each occasion she did so to the satisfaction of the Home Secretary.
+In cross examination before the tribunal she accepted that she always expected to be required to leave the UK at some point.
+As a result of her extensive studies in the UK, Ms Rhuppiah, who speaks English fluently, gained a variety of qualifications in business studies and associated fields.
+In November 2009, at the time of the expiry of the final grant of leave, Ms Rhuppiah applied for indefinite leave to remain in the UK on the ground of continuous lawful residence in the UK for at least ten years pursuant to what was then para 276B(i)(a) of the rules.
+The trouble was that her continuous residence had not always been lawful.
+The Home Secretary refused her application and the First tier Tribunal dismissed her appeal against the refusal.
+When, on 11 October 2010, the Upper Tribunal refused to grant her leave to appeal against the dismissal, Ms Rhuppiah became an unlawful overstayer in the UK.
+Judge Blundell observed that, had it not been for the ineptitude of her college in failing to make timely applications for further leave on her behalf, her application for indefinite leave to remain would probably have succeeded.
+Ms Rhuppiahs next attempt to apply for indefinite leave to remain in the UK met further ill fortune.
+On 1 July 2012 she applied on the ground of continuous residence in the UK (whether or not lawful) for at least 14 years pursuant to what was then para 276B(i)(b) of the rules.
+But she applied on the wrong form and enclosed an insufficient fee.
+So on 12 July her application was returned to her.
+On 24 July she re applied.
+But by then, namely on 9 July, the rules had been amended so as to delete para 276B(i)(b) (Statement of Changes in Immigration Rules HC 194).
+Judge Blundell observed that Ms Rhuppiah was justified in feeling cheated but he correctly held that a near miss was irrelevant.
+He cited Patel v Secretary of State for the Home Department [2013] UKSC 72, [2014] AC 651, in which, at para 53, Lord Carnwath cited with approval an observation that a miss was as good as a mile.
+When, belatedly, the Home Secretary addressed Ms Rhuppiahs re application dated 24 July 2012, he inevitably determined that it could not succeed under the rules.
+He proceeded to consider whether it should succeed on a basis outside the rules, by reference to her right to respect for her private life under article 8.
+His determination on that basis was also negative; and such has been the basis on which in these proceedings she has challenged the lawfulness of his determination to remove her from the UK.
+There is a striking feature of the private life established by Ms Rhuppiah in the UK.
+It concerns her friendship with Ms Charles.
+She lives in the home of Ms Charles, which is, or was at the time of their oral evidence to Judge Blundell, in London.
+Ms Charles is highly qualified in the field of IT and works as a systems engineer for Ministry of Defence projects and often in Bristol.
+Ms Rhuppiah met Ms Charles when they were studying at the same college and they have resided together since 2001.
+But it is not suggested and there is no need to consider whether it might have been suggested that Ms Rhuppiah pursues family life with Ms Charles within the meaning of article 8.
+Ms Charles suffers from ulcerative colitis, a gravely debilitating condition.
+She suffers frequent symptoms of diarrhoea, nausea, inability to eat, anaemia, fatigue, joint pain and reduced mobility.
+She has had multiple admissions to hospital.
+She is heavily dependent on Ms Rhuppiah both physically and emotionally.
+Ms Rhuppiah cooks such food as Ms Charles can eat and accompanies her to Bristol, to hospital and in effect everywhere.
+Ms Charles has ceded control of her financial affairs to her.
+Instead of paying her for looking after her in these respects, Ms Charles provides her with largely free board and lodging.
+Judge Blundell found that Ms Rhuppiah, who is a Seventh Day Adventist, cares for Ms Charles out of friendship, faith and habit.
+He found that, were Ms Rhuppiah to leave the UK, Ms Charles would have to turn to the state to meet her need for care; that her physical health and her ability to continue to work in Bristol would be compromised, at least in the short term; and that her life would be turned upside down.
+Sections 117A and 117B
+Section 117B(5) falls within Part 5A of the 2002 Act, which was inserted into it, with effect from 28 July 2014, by section 19 of the Immigration Act 2014.
+Part 5A is headed Article 8 of the ECHR: Public Interest Considerations.
+Unfortunately it is necessary to set out a substantial amount of Part 5A, as follows: 117A Application of this Part (1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts (a) breaches a persons right to respect for private and family life under article 8, and as a result would be unlawful under (b) section 6 of the Human Rights Act 1998.
+In considering the public interest question, the (2) court or tribunal must (in particular) have regard in all cases, to the considerations listed in (a) section 117B In subsection (2), the public interest question (3) means the question of whether an interference with a persons right to respect for private and family life is justified under article 8(2). 117B Article 8: public interest considerations applicable in all cases (1) The maintenance of effective immigration controls is in the public interest.
+It is in the public interest, and in particular in the (2) interests of the economic well being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English are less of a burden on taxpayers, and (a) (b) are better able to integrate into society. (3) It is in the public interest, and in particular in the interests of the economic well being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons (a) are not a burden on taxpayers, and (b) are better able to integrate into society. (4) Little weight should be given to a private life, or a relationship formed with a qualifying (a) (b) partner, that is established by a person at a time when the person is in the United Kingdom unlawfully. (5) Little weight should be given to a private life established by a person at a time when the persons immigration status is precarious. (6)
+It will be seen that the considerations in each of the first five subsections of section 117B are all entitled public interest considerations.
+On any view the considerations in the first three subsections relate to the public interest in the removal of a person present in the UK contrary to immigration law.
+At first sight, however, one might consider that the considerations in the fourth and fifth subsections relate to the strength of the case which might weigh against that public interest.
+The explanation for their inclusion as public interest considerations lies in the wide definition of the public interest question set out in section 117A(3) above.
+See Deelah (section 117B ambit) [2015] UKUT 00515 (IAC), paras 18 and 21.
+Section 117B(4) is not engaged in the present case: it is agreed that Ms Rhuppiah established her relevant private life in the UK, in particular her role in caring for Ms Charles, long before 2010 and at a time when her presence here was predominantly lawful.
+Nevertheless it may be helpful to note the reference to a qualifying partner in section 117B(4)(b) and to glance at the definition of that phrase in section 117D(1).
+It means a partner who is a British citizen or who is settled in the United Kingdom (within the meaning of the Immigration Act 1971 see section 33(2A) of that Act).
+Section 33(2A) defines a person as settled in the UK if he is ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain.
+Insofar as the courts inquiry into the meaning of a precarious status in section 117B(5) may be seen in what follows to require contrast with the meaning of a settled status, it may be helpful to bear in mind the definition of the word settled brought by section 117D(1) into the 2002 Act itself.
+At last this judgment can proceed to address the primary question, namely the meaning of the word precarious in section 117B(5).
+Section 117B(5)
+Ms Rhuppiah accepts that a persons immigration status in the UK can be precarious when he or she is lawfully present in the UK; otherwise subsection (5) of section 117B would add nothing to subsection (4).
+She suggests that, for example, asylum seekers pending determination of their applications and lawful visitors to the UK probably have a precarious immigration status.
+But she contrasts their situation with that of persons who, albeit with a right to remain which is time limited, have a reasonable hope of permanent settlement in the UK or who (as is suggested by Richard Warren, Private life in the balance: constructing the precarious migrant, Journal of Immigration, Asylum and Nationality Law (2016) 124, 130) are on a potential path to settlement.
+She contends that, with the grant to her of long periods of leave to reside as a student, she fell into the latter category.
+Hope that circumstances might change to enable her to continue to live in the UK did not, says Ms Rhuppiah, invalidate her intention, when seeking extensions of her visa, to depart from the UK at the end of her studies.
+That a potential path to settlement was open to her is, she contends, made clear by the fact that she came close to securing it both in 2010 and in 2012.
+The Court of Appeal rejected Ms Rhuppiahs argument, along the lines of the above, that her immigration status prior to 2010 was not precarious.
+But, when it turned to the Home Secretarys contrary argument, which was and is that all leave short of indefinite leave to remain in the UK gives rise to a precarious status, the court expressed provisional doubt.
+Sales LJ said at para 44: There is a very wide range of cases in which some form of leave to remain short of ILR may have been granted, and the word precarious seems to me to convey a more evaluative concept, the opposite of the idea that a person could be regarded as a settled migrant for article 8 purposes, which is to be applied having regard to the overall circumstances in which an immigrant finds himself in the host country.
+Some immigrants with leave to remain falling short of ILR could be regarded as being very settled indeed and as having an immigration status which is not properly to be described as precarious.
+Such being the parameters of the issue surrounding the primary question, we must seek guidance in authority, first that of the ECtHR.
+It was in its admissibility decision in Mitchell v United Kingdom, (Application No 40447/98) 24 November 1998, that the ECtHR appears first to have used the word precarious in the context of an application under article 8.
+It rejected, as manifestly ill founded, a British citizens application that her husbands deportation to Jamaica had violated her right to respect for her family life.
+Her husband had been admitted to the UK as a visitor for six months; and for the following five years, in the course of which the applicant had married him, he had remained in the UK unlawfully.
+The court said, at p 4: An important though not decisive consideration will also be whether the marriage was contracted at a time when the parties were aware that the immigration status of one of them was such that the persistence of the marriage within the host state would from the outset be precarious.
+The court considers that where this is a relevant consideration it is likely only to be in the most exceptional circumstances that the removal of the
+non national spouse will constitute a violation of article 8
+In its numerous subsequent reiterations of the consideration identified in the Mitchell case the ECtHR has adapted it so as to extend to cases in which the context of the alleged family life was not a marriage.
+So the question became whether family life was created at a time when the parties were aware that the immigration status of one of them was such that the persistence of family life within the host state would from the outset be precarious: see, for example, Rodrigues da Silva, Hoogkamer v Netherlands (2007) 44 EHRR 34, para 39.
+In that case a mother and her young daughter relied on their family life together.
+At all times the mothers stay in the Netherlands had been unlawful and she had given birth to the daughter there.
+It is implicit in the courts judgment that the persistence of their family life in the Netherlands was therefore known to be precarious and that it was only by virtue of exceptional circumstances that the court held article 8 to have been violated.
+In what circumstances beyond those in which a participant in the family life was known to be present in the state unlawfully, would its persistence there be precarious?
+61292/00) 11 April 2006, the ECtHR said, at p 9: In its admissibility decision in Useinov v Netherlands (Application No it is the applicants submission that he was allowed to live in the Netherlands pending the proceedings on his asylum application and his subsequent application for a residence permit for compelling reasons of a humanitarian nature, ie a total period of just over five years.
+However, the court is of the view that this cannot be equated with lawful stay where the authorities explicitly grant an alien permission to settle in their country.
+Therefore, the applicants stay in the Netherlands was precarious for most of it, and illegal for the remainder.
+The court proceeded to hold, in apparent reference to the discussion in the Mitchell case, that there were no exceptional circumstances giving rise to a violation.
+The final sentence of the above passage in the Useinov case presents a slight complication in that it pitches the word precarious into a slightly different context from that in which it had been placed in the Mitchell case, from which the court had just quoted.
+For in the final sentence the court analysed whether the applicants stay had been precarious, not whether the persistence of family life there had been known to be precarious.
+In that slightly different context it distinguished between a precarious stay, permitted by the state but only pending its determination of outstanding applications, and an illegal stay.
+Had the court instead asked whether the persistence of family life had been known to be precarious, it would surely have answered affirmatively in relation both to the precarious and to the illegal periods of the applicants stay.
+The more useful part of the above passage is in the distinction drawn between permission to stay pending determination of applications, which makes persistence of family life during that period precarious, and permission to settle, which (by implication) does not do so.
+The distinction was reaffirmed in Nnyanzi v United Kingdom (2008) 47 EHRR 18, para 76.
+The case of Butt v Norway (Application No 47017/09) 4 December 2012, sheds further light on the circumstances in which the persistence of family life would be precarious.
+The family life of the applicant siblings in Norway had been created at a time when, with their mother, they had been granted a settlement permit which was later withdrawn because the mother had obtained it by the provision of false information.
+The court held at para 79 that, to the mothers knowledge, the persistence of their family life was precarious but at para 90 that there were exceptional circumstances which gave rise to a violation.
+But the most helpful decision of the ECtHR on this topic is that of the Grand Chamber in Jeunesse v Netherlands (2015) 60 EHRR 17.
+The applicants husband and their three children were Dutch nationals.
+But her family life with them in Holland was created at a time when, as a national of Suriname, her right to reside in Holland was no more than tolerated by the state pending its protracted determination of her various applications for residence permits and of her consequential appeals.
+The court held that, to her knowledge, the persistence of their family life there was precarious.
+In para 102 it echoed the contrast drawn in the Useinov and Nnyanzi cases with a grant of permission to settle.
+In para 104 it proceeded as follows: The instant case may be distinguished from cases concerning settled migrants as this notion has been used in the courts case law, namely, persons who have already been granted formally a right of residence in a host country.
+A subsequent withdrawal of that right, for instance because the person concerned has been convicted of a criminal offence, will constitute an interference with his or her right to respect for private and/or family life The significance of the passage mainly lies in the word withdrawal, which sheds light on the nature of the right of residence which the Grand Chamber had in mind.
+For, as Sales LJ himself suggested in para 39 of his judgment, a right of residence which can be withdrawn, for instance because of a criminal conviction, is, in particular, a right of residence pursuant to indefinite leave to remain.
+In relation to applications under article 8 arising prior to the introduction of section 117B(5), both the Home Secretary, in his Instructions to case workers, and the courts of England and Wales duly sought to take into account the consideration identified by the ECtHR in the Mitchell case and later adapted.
+For example in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin) Sales J rejected the applicants challenge to the lawfulness of a determination to remove him to India on the basis that persistence of his family life in the UK with his cohabitant had from the outset been precarious.
+In fact at all material times the applicant had been in the UK unlawfully; so the basis for the judges decision was obvious and he was not required precisely to discern the boundary between when persistence of family life was and was not precarious.
+In the Agyarko case, cited in para 4 above, the appellants had also formed the relevant relationships while they had been unlawfully in the UK.
+But it is worthwhile to note the way in which Lord Reed expressed himself in a judgment with which the other members of the court agreed.
+Having in para 49 addressed the Jeunesse case, he suggested in para 51 (and in effect repeated in para 54) that persistence of family life would be precarious if created when an applicant was in the UK unlawfully or was entitled to remain in the UK only temporarily.
+In para 45 of his judgment in the present case Sales LJ recorded that it was common ground that the starting point for consideration of the proper construction of Part 5A of the 2002 Act is that sections 117A 117D are intended to provide for a structured approach to the application of article 8 which produces in all cases a final result which is compatible with, and not in violation of, article 8.
+This remains common ground; and it is clearly correct.
+But, insofar as the legislation is intended in all cases to produce a result compatible with the article, we will need to find somewhere within it provision for a degree, no doubt limited, of flexibility.
+It is obvious that Parliament has imported the word precarious in section 117B(5) from the jurisprudence of the ECtHR to which I have referred.
+But in the subsection it has applied the word to circumstances different from those to which the ECtHR has applied it.
+In particular Parliament has deliberately applied the subsection to consideration only of an applicants private life, rather than also of his family life which has been the predominant focus in the ECtHR of the consideration identified in the Mitchell case.
+The different focus of the subsection has required Parliament to adjust the formulation adopted in the ECtHR.
+Instead of inquiry into whether the persistence of family life was precarious, the inquiry mandated by the subsection is whether the applicants immigration status was precarious.
+And, because the focus is upon the applicant personally and because, perhaps unlike other family members, he or she should on any view be aware of the effect of his or her own immigration status, the subsection does not repeat the explicit need for awareness of its effect.
+Apart from the judgment of Sales LJ in the present case, the leading authority on the meaning of the word precarious in section 117B(5) is the decision of the Upper Tribunal given by Deputy Upper Tribunal Judge Holmes on behalf of himself and Mr CMG Ockelton, the Vice President, in AM (S117B) Malawi [2015] UKUT 260 (IAC), [2015] Imm AR 5.
+The appellant, a citizen of Malawi, entered the UK in 2006 on a student visa.
+In 2007 his wife and daughter joined him from Malawi.
+In 2011 a second daughter was born.
+The immigration status of his wife and daughters was dependent upon his status.
+In 2012 the final extension of his student visa expired.
+The Home Secretary determined to remove all four members of the family to Malawi.
+The appellant challenged the determination by reference to the private life of each of the four of them.
+He could not rely on their right to respect for their family life because the proposed removal of all of them together would not interfere with it.
+The Upper Tribunal upheld the conclusion of the First tier Tribunal that their private lives in the UK had been established when their immigration status had been precarious within the meaning of section 117B(5) and that his appeal against the determination to remove them should be dismissed.
+In explaining its decision the Upper Tribunal (a) noted at para 20 that, prior to the introduction of section 117B(5), the word precarious had been applied both in the ECtHR and in domestic courts not only to the status of a person lawfully present for a limited period but also to the situation of a person unlawfully present; (b) considered however at para 23 that Parliament had in section 117B(4) and (5) drawn a sharp distinction between a person in the UK unlawfully and one whose immigration status was precarious, with the result that, under the statute, a precarious immigration status did not include the situation of a person unlawfully present; (c) held at para 27 that all those granted a defined period of leave to remain in the UK, including discretionary leave to remain as well as leave of limited duration, had a precarious immigration status, even if they had a legitimate expectation that their leave would ultimately be extended indefinitely; (d) therefore at para 32 formulated its central decision as being that a persons immigration status was precarious for the purpose of section 117B(5) if his continued presence in the UK would be dependent upon a further grant of leave; and suggested at para 33 that even a grant of indefinite leave to remain (e) might render the persons status precarious if the grant had been obtained by deception or if he or she had embarked on a course of criminal conduct which would justify its withdrawal.
+In the Deelah case, cited in para 21 above, McCloskey J, sitting in the Upper Tribunal as its President, stressed at paras 17 and 29 that in the case before him no issue arose as to whether the immigration status of the appellants had been precarious.
+As an aside, however, at para 30, he described as clear and concise the central decision which in the AM case the same tribunal had recently reached (see para 39(d) above) and advised judges and practitioners constantly to be alert to it.
+The court understands that, contrary to the law report of the decision of the Court of Appeal in the present case, the AM case was cited to it.
+At all events, for whatever reason, Sales LJ does not appear to have had in mind the strong indorsement in that case of the Home Secretarys contention that, for the purposes of section 117B(5), a person has a precarious immigration status if he or she has leave to remain in the UK which is other than indefinite.
+The provisional view of Sales LJ, set out in para 25 above, was that leave to remain short of indefinite leave might sometimes confer on a person a status not properly to be described as precarious; and that the concept of precariousness might fall to be applied having regard to the persons overall circumstances.
+The view of Sales LJ is entitled to great respect.
+In para 36 above I have recognised the need for a degree, no doubt limited, of flexibility in the application of Part 5A of the 2002 Act.
+But I will shortly explain how, elsewhere, the statute does permit a limited degree of it.
+I do not consider that the ordinary meaning of the word precarious requires, or that in its context Parliament must have intended the word to require, that its application to the facts of a case should depend upon a subtle evaluation of the overall circumstances such as Sales LJ had in mind.
+The bright line interpretation of the word precarious in section 117B(5), commended by the specialist tribunal with the maximum weight of its authority, is linguistically and teleologically legitimate; and, for that matter, it is consistent with the way in which the ECtHR expressed itself in the Jeunesse case (see para 34 above) and in which this court expressed itself in the Agyarko case (see para 35 above).
+The answer to the primary question posed by the present appeal is therefore that everyone who, not being a UK citizen, is present in the UK and who has leave to reside here other than to do so indefinitely has a precarious immigration status for the purposes of section 117B(5).
+It follows that Judge Blundell, upheld on this point in both the successive appeals, was correct to determine that Ms Rhuppiahs private life in the UK, having been established when, at any rate predominantly, she had leave to reside here as a student, was established at a time when her immigration status was precarious.
+Irrelevant though it is, it may be worthwhile to note that even since 9 February 2018 her immigration status has been precarious.
+Although she no doubt reasonably entertains a hope that in 2028 she may secure indefinite leave to remain, her present leave is to do so for 30 months: see para 6 above.
+Another helpful feature of the Upper Tribunals decision in the AM case was its conclusion that the concept of a precarious immigration status under section 117B(5) did not include the situation of a person present in the UK unlawfully: see para 39(b) above.
+It is well arguable in principle that a person unlawfully present has an immigration status to that effect and that, of course, it is precarious.
+But in subsections (4) and (5) of section 117B Parliament has drawn a clear distinction between unlawful presence and a precarious immigration status.
+In relation to a person unlawfully present, subsection (4) covers all the ground (indeed, at (4)(b), more than all the ground) which subsection (5) would cover; and there is nothing to indicate that, notwithstanding the clear distinction, Parliament intended subsection (5) to overlap with subsection (4).
+The facts of the present case do not enable this court to appraise the further suggestion in the AM case that even a grant of indefinite leave to remain might yield a precarious immigration status in the circumstances identified at para 39(e) above.
+The reader will however have noted that the suggestion derives partial support from the decision of the ECtHR in the Butt case, summarised at para 33 above.
+It would be reasonable for this court to expect that its indorsement today of the conclusions in the AM case at paras 43 and 44 above will make it easier for decision makers to decide whether an immigration status was precarious at the relevant time.
+In Ahmed v Secretary of State for the Home Department [2014] EWHC 300 (Admin) Green J observed, at para 44, that there was an element of precariousness but not a very strong one.
+In Secretary of State for the Home Department v Thierno Barry [2018] EWCA Civ 790 Singh LJ observed at para 62 that the respondents position was not entirely precarious.
+Neither case required consideration of section 117B(5); both courts were seeking outside the statute to weigh the consideration identified by the ECtHR in the Mitchell case in their appraisal of rights under article 8.
+It is, however, to be hoped that decision makers will no longer need to wrestle with degrees of precariousness.
+Section 117A(2)(a)
+It was in section 117A(2)(a) of the 2002 Act that Parliament introduced the considerations listed in section 117B.
+So, in respect of the consideration in section 117B(5), Parliaments instruction is to have regard to the consideration [that] [l]ittle weight should be given to a private life established by a person at a time when the persons immigration status is precarious.
+McCloskey J suggested in para 23 of the Deelah case, cited in para 21 above, that the drafting wins no literary prizes.
+But, as both parties agree, the effect of section 117A(2)(a) is clear.
+It recognises that the provisions of section 117B cannot put decision makers in a strait jacket which constrains them to determine claims under article 8 inconsistently with the article itself.
+Inbuilt into the concept of little weight itself is a small degree of flexibility; but it is in particular section 117A(2)(a) which provides the limited degree of flexibility recognised to be necessary in para 36 above.
+Although this court today defines a precarious immigration status for the purpose of section 117B(5) with a width from which most applicants who rely on their private life under article 8 will be unable to escape, section 117A(2)(a) necessarily enables their applications occasionally to succeed.
+It is impossible to improve on how, in inevitably general terms, Sales LJ in his judgment described the effect of section 117A(2)(a) as follows: 53.
+Although a court or tribunal should have regard to the consideration that little weight should be given to private life established in [the specified] circumstances, it is possible without violence to the language to say that such generalised normative guidance may be overridden in an exceptional case
+by particularly strong features of the private life in question
+There was lively argument before the Court of Appeal about whether Judge Blundell understood the effect upon section 117B(5) of section 117A(2)(a), then recently enacted, and, if not, whether the advocates (none of whom appeared in this court) had failed to give him the necessary assistance in that regard.
+For he concluded that he was required by statute to attach little weight to the aspects of her private life upon which Ms Rhuppiah relied and that he was bound to conclude that the harsh consequences which will flow from [her] removal are justified.
+In the light of the now academic nature of the present appeal there is no need for this court either to explore this issue or to appraise the firm conclusion of Sales LJ at para 57, at first sight slightly surprising, that there were no such particularly strong features of Ms Rhuppiahs private life as would justify departure from the result indicated by section 117B(5).
+Section 117B(3)
+Section 117B(3) of the 2002 Act, set out in para 20 above, provides that it is in the public interest, and in particular in the interests of the economic well being of the UK, that persons who remain here are financially independent.
+Then the subsection proceeds to give two reasons why their financial independence is in the public interest.
+Judge Blundell held that, in that she was dependent on support from her father and from Ms Charles, Ms Rhuppiah was not financially independent and that this was a further consideration, negative to her claim under article 8, to which he was required to have regard.
+The Court of Appeal, at paras 63 64, upheld his analysis and in doing so rejected the submission on behalf of Ms Rhuppiah that persons were financially independent for the purposes of section 117B(3) if they were not financially dependent upon the state.
+The Home Secretary now agrees with the submission which was made, and which continues to be made, on behalf of Ms Rhuppiah about the meaning of financial independence in section 117B(3); but he adds uncontroversially that the evidence of support from third parties has to be credible and the support reliable.
+This is the agreed area of error into which Judge Blundell and the Court of Appeal fell, to which reference was made in para 7 above.
+The Home Secretary has changed his mind about the meaning of financial independence following the decision of this court in R (MM (Lebanon)) v Secretary of State for the Home Department [2017] UKSC 10, [2017] 1 WLR 771, which post dated the decision of the Court of Appeal in the present case.
+In the MM and linked cases this court considered the financial requirements imposed by the rules upon non EEA family members wishing to join their relatives in the UK.
+The court held that adherence to the rules, which had sought to exclude reliance on promises of third party support even if credible, might precipitate a violation of article 8.
+The rules were changed accordingly.
+The parties are correct to join in submitting to this court that financial independence in section 117B(3) means an absence of financial dependence upon the state.
+Why would it be in the public interest that they should not be financially dependent on other persons? Why would it in particular be in the interests of the economic well being of the United Kingdom that they should not be dependent on them? Sales LJ suggested, at para 64, that the financial support provided to Ms Rhuppiah by her father and Ms Charles might cease, whereupon the obligation to maintain her would probably fall upon the state; but a cessation of a persons employment would probably have the same result.
+Indeed the present case is a good example of the sometimes flimsy distinction between employment and third party support.
+Anyone other than Ms Rhuppiah who provided extensive caring services to Ms Charles would need to be paid; and it is but an incident of their close friendship and of Ms Rhuppiahs legal inability to have taken employment prior to 9 February 2018 that instead the provision to her has taken the form of largely free board and lodging.
+Regard must moreover be had to the first of the two reasons given in section 117B(3) for its statement as to where the public interest lay: because such persons are not a burden on taxpayers.
+It was the view of Sales LJ at para 65 that, if the phrase financially independent referred to independence of the state, the quoted words were close to tautological.
+Had those words been part of the statement as to where the public interest lay, one might more readily have agreed with his view.
+But they are not part of the statement.
+They are part of the explanation for it and in my view they unequivocally support the construction of section 117B(3) now agreed between the parties.
+So Judge Blundell erred in concluding that Ms Rhuppiah was not financially independent within the meaning of section 117B(3).
+The further submission on her behalf is and has been that the effect of section 117B(2) and (3) is to cast her ability to speak English and her financial independence as factors which positively weigh in her favour in the inquiry under article 8.
+But the further submission is based on a misreading of the two subsections and was rightly rejected by Judge Blundell, upheld by the Court of Appeal, just as an analogous submission was rejected in para 18 of the decision in the AM case, cited at para 38 above.
+The subsections do not say that it is in the public interest that those who are able to speak English and are financially independent should remain in the UK.
+They say only that it is in the public interest that those who seek to remain in the UK should speak English and be financially independent; and the effect of the subsections is that, if claimants under article 8 do not speak English and/or are not financially independent, there is, for the two reasons given in almost identical terms in the subsections, a public interest which may help to justify the interference with their right to respect for their private or family life in the UK.
+In seeking to portray the strength of their private or family life by reference to all their circumstances, claimants may wish to highlight their ability to speak English and/or their financial independence; but the legitimate deployment of such factors in that context is to be contrasted with the erroneous further submission that the subsections propel a conclusion that, where those factors exist, there is a public interest in favour of the claims.
+Conclusion
+It nevertheless follows that Judge Blundell erred in law in holding that section 117B(3) of the 2002 Act applied to Ms Rhuppiahs appeal and therefore that it identified an aspect of the public interest negative to her claim.
+Was his error material? In any event section 117B(5) required him to give little weight to her private life.
+But that requirement was subject to section 117A(2)(a), which conferred on him a limited degree of flexibility.
+In the absence of his error in relation to section 117B(3), section 117A(2)(a) might properly have led him to uphold her claim, for which he had obvious sympathy.
+I propose that we should allow Ms Rhuppiahs appeal to this court and should set aside his order upon her initial appeal; but that, for the reason given in para 8 above, we should not remit her initial appeal for fresh determination.
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+This appeal offers an opportunity for this court to consider, for the first time, the extent to which the right to the free use of sporting and recreational facilities provided in a country club environment may be conferred upon the owners and occupiers of an adjacent timeshare complex by the use of freehold easements.
+In the well known leading case of In re Ellenborough Park [1956] Ch 131 the Court of Appeal decided that the shared recreational use of a communal private garden could be conferred upon the owners of townhouses built around and near it by means of easements.
+The use of the same conveyancing technique in the present case in relation to a much wider range of activities was, if not misguided, at least a more ambitious undertaking.
+The essential question, if that case was rightly decided, is whether the same underlying principles work in the present context (as the trial judge and the Court of Appeal both held) or whether the attempt to do so falls foul of the necessary limitations upon the scope of easements in English law, most of which, as recently as 2011, the Law Commission has advised should not lightly be put aside.
+The essence of an easement is that it is a species of property right, appurtenant to land, which confers rights over neighbouring land.
+The two parcels of land are traditionally, and helpfully, called the dominant tenement and the servient tenement.
+The effect of the rights being proprietary in nature is that they run with the land both for the benefit of the successive owners of the dominant tenement, and by way of burden upon the successive owners of the servient tenement.
+By contrast merely personal rights do not generally have those characteristics.
+Although owing much to the Roman law doctrine of servitudes, easements have in English law acquired an independent jurisprudence of their own, the essentials of which have been settled for many years, even if the uses of land during the same period have not stood still.
+Since the question whether a particular grant of, or claim to, rights is capable of having the enduring proprietary quality of an easement is usually (as here) fact intensive, it is convenient to begin with a summary of them.
+The Facts
+Broome Park, formerly the home of Field Marshal Lord Kitchener of Khartoum, is a substantial country estate near Canterbury, with a large 17th century Grade I listed house (the Mansion House) at its heart, and a much smaller house, Elham House, nearby.
+Prior to 1967 Broome Park had been in common ownership.
+In early 1967 Elham House together with land around it lying entirely within the Park was conveyed off and its separate title was first registered on 30 March 1967.
+I shall call the house and its surrounding land Elham House.
+It is the alleged dominant tenement in relation to the disputed easement.
+I will refer to the rest of Broome Park, retained by the vendor in 1967, including the Mansion House, as the Park.
+It is the alleged servient tenement in relation to the disputed easement.
+In or before 1979 the Park was acquired by Gulf Investments Ltd (Gulf Investments), a subsidiary of Gulf Shipping Lines Ltd (Gulf Shipping), for the purposes of developing a timeshare and leisure complex.
+The essential features of the development scheme included, first, the creation of 18 timeshare apartments on the upper two floors of the Mansion House; secondly, the creation of a communal club house for the timeshare owners and other paying members of the public on the ground floor and basement of the Mansion House including restaurant, TV, billiards and gymnasium facilities; and thirdly, the construction and laying out within the surrounding grounds of the Park of sporting and recreational facilities including an 18 hole golf course, an outdoor heated swimming pool, tennis and squash courts, and formal gardens.
+Individual purchasers of timeshare units within the apartments on the upper floors of the Mansion House formed themselves into the Broome Park Owners Club (the BPOC).
+On 13 August 1980, Gulf Investments granted a 35 year lease of the first and second floors of the Mansion House to Gulf Leisure Developments Ltd, which was to hold the residential accommodation within the Mansion House on behalf of the BPOC.
+I will call it the BPOC Lease.
+It was drafted so as to confer upon owners of the timeshare units within the Mansion House the free use of the communal and leisure facilities within the lower part of the Mansion House and its surrounding grounds, including the golf course and other sporting and recreational facilities, for the full 35 year of the term, and Gulf Investments covenanted as landlord to keep properly maintained repaired constructed and reconstructed the ground floor and basement of the Mansion House and the sporting and recreational facilities provided within the Park, including the swimming pool, golf course, squash courts, tennis courts and formal gardens.
+The solicitor responsible for the conveyancing in connection with the development gave evidence at trial that a leasehold structure was chosen for this purpose because of the need to make appropriate provision for what might prove to be the large repairing and maintenance obligations arising from the status of the Mansion House as a Grade I listed building of some antiquity.
+The early success of this development, centred on the Mansion House timeshare apartments, led Gulf Investments to plan a second timeshare development, this time centred upon Elham House.
+For that purpose, Elham House was re acquired so as to be integrated within Broome Park in November 1980, and planning permission was obtained for the conversion of the house into two timeshare apartments, and for the building of 24 further timeshare apartments in its grounds, the whole to be re named Regency Villas.
+It is evident from contemporary marketing materials that a main attraction held out to prospective buyers of timeshare units within the Regency Villas development was the same free use of the sporting and recreational facilities within the ground floor and basement of the Mansion House and within the Park, as had been afforded to the owners of timeshare units on the upper two floors of the Mansion House.
+On this occasion however, it was decided to use a freehold rather than leasehold structure for Regency Villas, apparently because it was not anticipated that Elham House or the newly built apartments in its grounds would give rise to the potentially onerous repairing obligations associated with the Mansion House.
+Thus, by a transfer dated 11 November 1981 (the 1981 Transfer) Gulf Investments transferred Elham House to Elham House Developments Ltd, another member of the Gulf Group headed by Gulf Shipping.
+On the following day, and as part of a pre planned series of transactions, Elham House Developments Ltd transferred Elham House to Barclays Bank Trust Co Ltd, to be held for the benefit in due course of the members of the Regency Villas Owners Club (RVOC) to be constituted by the purchasers of timeshare units within the Regency Villas development.
+The 1981 Transfer included the grant of rights which is the subject of the present dispute.
+I shall refer to that grant of rights as the Facilities Grant.
+The transfer itself has been lost, but the relevant terms of the Facilities Grant were duly recorded at HM Land Registry, on the Property Register in respect of the title to Elham House, and on the Charges Register against each of the two registered titles together constituting the Park.
+The words of the Facilities Grant appear in the last of three paragraphs, all of which it is appropriate to set out in full, so that the last paragraph appears in its context: TOGETHER WITH firstly the right of way for the Transferee its successors in title its lessees and the occupiers from time to time of the property at all times with or without vehicles for all purposes in connection with the use and enjoyment of the property over and along the drive ways and roadways (hereafter called the roadways) shown coloured blue on the plan attached hereto.
+AND Secondly all the right to the full and free passage of gas water soil electricity and any other services from and to the property in and through any pipes drains wires cables or other conducting media now in under or over the Transferees adjoining land or constructed within 80 years of the date hereof.
+AND thirdly the right for the Transferee its successors in title its lessees and the occupiers from time to time of the property to use the swimming pool, golf course, squash courts, tennis courts, the ground and basement floor of the Broome Park Mansion House, gardens and any other sporting or recreational facilities (hereafter called the facilities) on the Transferors adjoining estate.
+The 1981 Transfer also contained a covenant by Gulf Investments to maintain the sporting and recreational facilities within the Park, but it is common ground that the burden of this covenant, being positive in nature and unsupported by a leasehold structure, did not bind successors in title to the Park, including the appellants.
+By the time of the 1981 Transfer, there had already been constructed within the Park most of the relevant sporting and recreational facilities, including the golf course, the outdoor heated swimming pool, three squash courts, two tennis courts, a restaurant, billiard/snooker room and TV room on the ground floor of the Mansion House and a gymnasium, including sauna and solarium, in the basement.
+There were also Italianate gardens, a putting green, a croquet lawn, an outdoor jacuzzi/spa pool, an ice/roller skating rink, platform tennis courts, a soft ball court and riding stables.
+These facilities did not cover the whole of the Park, as defined.
+There remained about 90 acres of undeveloped farmland, which remain undeveloped to this day.
+An officious bystander in 1981 might well have been prompted to ask how it was envisaged by the promoters of these two timeshare schemes that the extensive sporting and recreational facilities of which the timeshare owners were to be afforded the free use were to be managed, maintained and when necessary renewed by the owners of the Park, to the high standards promised in the contemporary promotional materials, without any contribution from them.
+Although nowhere clearly stated in the evidence, the answer appears to be that the promoters envisaged that the operation of the leisure complex within the Park as a golf course and county club would attract sufficient paying members of the public (other than timeshare owners in either of the two timeshare developments) to fund its ongoing operating costs.
+If that was the expectation, it does not appear to have been fulfilled.
+Correspondence in and after 1998 between the RVOC and Broome Park Golf & Country Club, then owning or at least managing the Park, describes a reduction in the number of available facilities, a lack of investment in the Park, and a perception that, without some significant contribution to running costs by the RVOC members, whether or not under legal obligation, the facilities offered at the Park would be likely to deteriorate further.
+The outdoor swimming pool became disused and was filled in by 2000.
+The failure to maintain a swimming pool within the Park was a breach of the landlords covenants in the BPOC lease and, pursuant to an order of HHJ Pelling QC in proceedings brought by the BPOC, a new pool was constructed in part of the basement of the Mansion House, where the gymnasium had previously been situated.
+Some other facilities, such as the putting green, croquet lawn, jacuzzi/spa pool and roller skating rink had been closed and the riding stables were demolished.
+Apart from the major change constituted by the erection of the indoor swimming pool, other minor changes occurred to the facilities within the ground floor and basement of the Mansion House.
+Meanwhile, a third timeshare development was constructed within the Park in about 2003, bringing the total number of timeshare apartments within the Park (including the Regency Villas development) to some 58.
+Finally, the BPOC lease expired by effluxion of time, shortly after the trial, in 2015.
+The Mansion House was then temporarily closed for refurbishment and reopened as an hotel.
+From time to time, beginning in about 1983, RVOC made voluntary payments on behalf of timeshare owners within the Regency Villas development to the owners and operators of the Park towards the cost, including upkeep, of the facilities.
+While made under a reservation of rights, these payments were usually in agreed amounts, at least until the end of 2011.
+Thereafter, and in the absence of any agreement to amounts, individual timeshare owners were charged fees from time to time for the use of specific facilities, which they paid notwithstanding their case that they were entitled to the use of those facilities free of charge.
+The Litigation
+The first claimant (and first respondent in this court) is the freehold owner of Elham House.
+The remaining claimants are individual timeshare members of the RVOC.
+They sue upon their own behalf and on behalf of all other members.
+They claimed a declaration that they were entitled, by way of easement, to the free use of all the sporting or recreational facilities from time to time provided within the Park, and an injunction restraining interference with them by the defendants (and appellants in this court) who are the current freehold and leasehold owners of the Park and parts thereof.
+In addition the claimants sought the return of sums paid by them or on their behalf by the RVOC for the use of those facilities since 2008, as damages for interference with their easement, or by way of restitution.
+The defendants denied that the claimants had the benefit of any easement in relation to the facilities, and counterclaimed for a quantum meruit in respect of the provision of those facilities in and after 2012, to the extent not paid for, or not paid for in full.
+At the trial before the late Judge Purle QC sitting as a High Court judge in 2015 the claimants succeeded in all their claims, save only for the recovery of payments made for the use of facilities before 2012, which the judge found had been made by agreement rather than under protest, in circumstances giving rise to no restitutionary claim: [2016] 4 WLR 61.
+That monetary claim has not been further pursued by the claimants.
+In the Court of Appeal (Sir Geoffrey Vos C, Kitchin and Floyd LJJ) [2017] Ch 516 the claimants were again successful on the main issue about whether the rights over the facilities granted by the 1981 Transfer constituted an easement or easements, but the judges decision was reversed on matters of detail.
+In particular, the claimants were held to have no rights in relation to the new swimming pool constructed in the basement of the Mansion House.
+The Court of Appeals declaration confirmed their rights to specific existing facilities, namely the golf course, squash courts, tennis courts, croquet lawn, putting green and Italianate gardens, but excluded rights in relation to anything provided on the ground floor and basement of the Mansion House.
+The claimants monetary entitlement in relation to payments in and after 2012 was correspondingly reduced, and the defendants obtained judgment for a quantum meruit in respect of those facilities provided in and after 2012 to which the claimants rights did not extend, of which the most important was the swimming pool.
+In this court the appellant defendants pursue their contention that the 1981 Transfer granted no enduring rights in the nature of easements in relation to any of the facilities within the Park, while the claimants by respondents cross appeal seek to restore the judges conclusion as to the full extent of their rights in relation to the facilities, including the new swimming pool, and accordingly seek to have dismissed the Court of Appeals order for a quantum meruit in favour of the defendants.
+The Issues
+Much the most important group of issues (which have given rise to almost all the oral argument on this appeal) are those which govern the question whether the Facilities Grant is capable in law of amounting to one or more easements.
+Those are the issues which justified the grant of permission to appeal.
+The subordinate issues, relating to the claimants rights if any in relation to the ground floor and basement of the Mansion House, and in particular to use of the new swimming pool, give rise to no general issues of law of public importance, but all the issues turn to a greater or lesser extent upon the true construction of the Facilities Grant, to which I now turn.
+Construction of the Facilities Grant
+The main features of the matrix of fact against which the 1981 Transfer has to be construed are, in my view, as follows.
+First, the 1981 Transfer was part and parcel of a collaborative exercise undertaken by two associated companies within the same Gulf Group for a common purpose, namely the development of timeshare apartments and the profitable sale of timeshare units on land immediately adjacent to an already up and running leisure complex, containing sporting and recreational facilities in a clubhouse and associated parkland adjacent to and entirely surrounding the subject matter of the 1981 Transfer.
+Secondly, not least because they shared a common conveyancing solicitor, both parties to the 1981 Transfer may be taken to have known about the leasehold structure underpinning the development of the timeshare units within Mansion House itself, including the obligation, binding on Gulf Investments as landlord, and upon its successors in title as owners of the Park, to maintain, repair, construct and (where necessary) reconstruct all the sporting or recreational facilities provided within the Park (including within the Mansion House), for the full period of 35 years provided for in the BPOC Lease, which expressly contemplated that the rights of the BPOC timeshare owners would extend to all those facilities provided within the Park at any time during that term (see Schedule 3, paragraph 8).
+Gulf Investments had therefore committed both itself and its successors in title to the provision, operation and maintenance of those facilities by binding obligations which, if necessary, could be enforced against them by a large number of timeshare owners, constituting the BPOC.
+Thirdly both parties also knew, by their common conveyancing solicitor, of the planned structure under which, only one day after the 1981 Transfer, the interest of the grantee was to be transferred on to a successor in title, for the benefit of the future timeshare owners within the Regency Villas scheme whom both parties wished to attract as purchasers.
+Construed against that contextual background, the following points emerge as aspects of the true construction of the Facilities Grant in the 1981 Transfer.
+First, it is abundantly plain that, whether successfully or not, the parties intended to confer upon the Facilities Grant the status of a property right in the nature of an easement, rather than a purely personal right.
+It was expressed to be conferred not merely upon the Transferee, but upon its successors in title, lessees and occupiers of what was to become a timeshare development in multiple occupation.
+That being the manifest common intention, the court should apply the validation principle (ut res magis valeat quam pereat) to give effect to it, if it properly can.
+Secondly, and although reference is made to a number of different specific facilities within the Park, the Facilities Grant is in my view in substance the grant of a single comprehensive right to use a complex of facilities, and comprehends not only those constructed and in use at the time of the 1981 Transfer, but all those additional or replacement facilities thereafter constructed and put into operation within the Park as part of the leisure complex during the expected useful life of the Regency Villas timeshare development for which the 1981 Transfer was intended to pave the way.
+It is, in short, a right to use such recreational and sporting facilities as exist within the leisure complex in the Park from time to time.
+In that respect I agree with the judges analysis of this point (at para 44 of his judgment) and disagree with the approach of the Court of Appeal, which treats each facility as the subject of a separate grant of rights, referable only to the separate locus in quo of each relevant facility at the time of the grant.
+I shall explain my full reasoning for this conclusion when dealing with the cross appeal, below, but the main point is this.
+The Court of Appeal regarded the absence of words of futurity in the language of the Facilities Grant (in contrast with the grant relating to the passage of services in the immediately preceding paragraph) as a strong pointer to a construction which limited the rights granted only to those facilities already in existence.
+This was also a main plank in the written submissions of the appellants on this point.
+In my view the absence of express words of futurity is amply compensated by the inherent nature of the subject matter of the third paragraph, namely the combination of sporting and recreational facilities in a leisure complex which would be bound to be subjected to significant alterations and changes during its business life.
+It may be that in this respect the Court of Appeal was encouraged to depart from the judges more coherent analysis because of a fear on the part of those advising the claimants that to construe the Facilities Grant as extending to the provision of additional or different facilities in the future might give rise to a risk of the grant being held to be void for perpetuity.
+In written submissions delivered at the courts invitation following the hearing, the appellants submit that this would indeed be the consequence of the judges construction.
+Although by 1981 the Perpetuities and Accumulations Act 1964 had intervened to provide a period of wait and see, the new swimming pool was in fact erected more than 21 years after the 1981 Transfer.
+In my judgment that concern of the claimants and submission of the appellants is misplaced, in relation to what appears to me to be a single grant of rights over a leisure complex comprising sporting and recreational facilities, which may be changed and adjusted from time to time to suit customer demand without giving rise to separate and distinct grants of rights taking effect only in the future.
+The main authorities relied upon by the appellants in support of their submission on perpetuity are Dunn v Blackdown Properties Ltd [1961] Ch 433 and Adam v Shrewsbury [2006] 1 P & CR 27.
+They show that where (in the case of a pre 2010 instrument) there is a grant of a future easement, or (which is in substance the same thing) a present easement which can only be enjoyed if and when, in the future, something is done on the servient land to make the easement useable, then the rule against perpetuities applies.
+In the Dunn case the grant was of sewerage rights, but no sewers existed at all at the time of the grant.
+In the Adam case the grant was the use of a garage yet to be constructed, on ground to be excavated by the grantor, accessible only from a roadway which was only partly constructed, at the time of the grant.
+In both cases the grants failed for perpetuity.
+In the present case, by contrast, the grant consisted of an immediately effective grant to use the sporting and leisure facilities in a leisure complex which existed as a complex at the time of the grant.
+The fact that the precise nature and precise location of those facilities within the Park might change thereafter, but the grant still apply to the complex as a whole, does not bring the grant within the rule.
+If by analogy there had already been a sewerage system on the servient land at the time of the grant in the Dunn case, the drainage easement would not have been defeated or rendered subject to perpetuity merely because, thereafter, the dominant owner made a change to the routeing of the pipework.
+Thirdly, there is no express provision requiring the grantee or its successors or timeshare owners to contribute to the cost of operating, maintaining, renewing and replacing facilities, and there has been no challenge to the judges conclusion that an attempt to discover them by way of implied term would fall foul of the necessity test.
+Nor is there, in the Facilities Grant itself, any such obligation imposed upon the grantor, although there is a separate, purely personal, covenant to that effect elsewhere in the 1981 Transfer.
+Much has been made of this personal covenant by the appellants in their written submissions on the judges construction.
+They say that it shows that the Facilities Grant was really intended only to be a grant of personal rights to the free use of a serviced sporting and leisure complex, and that the drafter wrongly assumed that the grantor could impose the servicing obligation on its successors in title as owners of the Park.
+This meant that the Facilities Grant would in law be of utility for as long (only) as the grantor should remain the owner of the Park, and dependent upon the purely personal covenant of the grantor, the benefit of which could be assigned to successors in title of the grantee as owners of Elham House.
+If this meant that the Facilities Grant was vulnerable to an early demise (for example on an early sale of the Park or its transfer to an associated company of the grantor) that was just the result of a conveyancing mistake which the court should do nothing to correct, and certainly not by the use of the validating principle of construction.
+I do not accept that submission.
+The personal covenant commits the Transferor to the maintenance, repair and cleansing of the roadways and the facilities.
+The roadways were plainly the subject of a conventional easement in the first of the three paragraphs (quoted above) the last of which contains the Facilities Grant.
+It cannot therefore be said that the existence of the personal covenant somehow reduces the Facilities Grant to a purely personal obligation, if it does not (and cannot) do so in relation to the right of way over the roadways.
+Although it is not clear, it may be that the conveyancer thought that the burden of a positive maintenance covenant ran with the land, but this does not impact upon the clear intention, manifest in relation to both the roadways and the facilities, that proprietary rights were being granted over them.
+I have sought to explain above how, in commercial terms, the parties to the 1981 Transfer may have anticipated that the leisure complex would be self financing (from the contributions of paying members of the public) without need to have recourse to contributions from the two groups of timeshare owners.
+In my judgment the common intention to be inferred from the absence of any provision in the Facilities Grant itself for such maintenance or funding obligations is that the parties to the 1981 Transfer (both of which were timeshare experts) were content to leave that as a matter of commercial risk, while seeking to maximise the capital receipts expected to be derived from the sale of timeshare units in connection with the Regency Villas apartments shortly thereafter to be constructed.
+Plainly, the imposition of a payment obligation on the timeshare owners would have had a dampening effect on the purchase prices likely to be obtained.
+The Appeal
+Mr Tim Morshead QC for the appellants described the Facilities Grant as one which conferred the right of free access for the Regency Villas timeshare owners to a high class leisure complex providing recreational and sporting attractions otherwise being provided by the appellants within the Park for paying members of the public.
+He submitted that such a grant of rights was incapable of amounting to an easement or easements for three main reasons: The rights did not accommodate Elham House, the dominant i) tenement; ii) Their exercise by the RVOC timeshare owners would amount to an ouster of the appellants as owners of the Park; iii) The enjoyment of the rights by the RVOC timeshare owners depended upon substantial expenditure by the appellants in managing and maintaining the facilities.
+Recognising that the decision in In re Ellenborough Park would be likely to constitute the sheet anchor in any case for treating the Facilities Grant as an easement (as it had been in both the courts below), the appellants in their printed case submitted that the decision was contrary to principle, in so far as it suggested that rights conferred for the pure (or mere) enjoyment of their exercise, rather than the better enjoyment of the dominant tenement as such, could satisfy the requirement that they accommodate the dominant tenement.
+In his oral submissions in this court, Mr Morshead preferred to focus on the private nature of the use of the communal garden in that case as that which, in sharp contrast with the Facilities Grant in this case, made it (just) legitimate to describe the rights conferred as accommodating the townhouses surrounding the garden.
+Before addressing the Ellenborough Park case directly, it is convenient first to summarise what, by the 1950s, were the well established conditions for the recognition of a right as an easement.
+Writing in 1954, Dr Cheshire described the four essential characteristics as follows: There must be a dominant and a servient tenement; i) ii) The easement must accommodate the dominant tenement; iii) The dominant and servient owners must be different persons; iv) A right over land cannot amount to an easement, unless it is capable of forming the subject matter of a grant.
+Aspects of these requirements are better understood when it is appreciated that easements may be created, not only by express grant, but also by implied grant, upon the transfer of part of land formerly in single ownership under the rule in Wheeldon v Burrows (1879) 12 Ch D 31, under section 62 of the Law of Property Act 1925 and by prescription.
+In the present case, as in In re Ellenborough Park, it is the second and fourth of those requirements with which the court is concerned.
+The Second Requirement
+The requirement that the right, if it is to be an easement, should accommodate the dominant tenement has been explained by judges, textbook writers and others in various ways.
+In his Modern Law of Real Property, 7th ed (1954) at p 457, Dr Cheshire expressed it in this way: One of the fundamental principles concerning easements is that they must be not only appurtenant to a dominant tenement but also connected with the normal enjoyment of the dominant tenement.
+Citing from Bailey v Stephens (1862) 12 CB(NS) 91, at 115, he continued: It must have some natural connection with the estate as being for its benefit .
+In its report Making Land Work: Easements, Covenants and Profits Prendre (2011) Law Com No 327 (HC 1067) at para 2.25 the Law Commission advised: The easement must accommodate, or accommodate and serve, the dominant land.
+The requirement is that the right must be of some practical importance to the benefited land, rather than just to the right holder as an individual: it must be reasonably necessary for the better enjoyment of that land.
+In the present case, the Court of Appeal described this requirement, at para
+56, as follows: In our view, the requirement that an easement must be a right of utility and benefit is the crucial requirement.
+The essence of an easement is to give the dominant tenement a benefit or utility as such.
+Thus, an easement properly so called will improve the general utility of the dominant tenement.
+It may benefit the trade carried on upon the dominant tenement or the utility of living there.
+Save only for easements of support (which may be said to benefit the land itself), easements generally serve or accommodate the use and enjoyment of the dominant tenement by human beings.
+Thus, a right of way makes the dominant tenement more accessible.
+Service easements enable the occupiers of the dominant tenement to receive water, gas and electricity.
+A drainage easement enables rainwater and sewage to be removed from land, in circumstances where its use would otherwise be inhibited by flooding.
+The following general points may be noted.
+First, it is not enough that the right is merely appurtenant or annexed to the dominant tenement, if the enjoyment of it has nothing to do with the normal use of it.
+Nor is it sufficient that the right in question adds to the value of the dominant tenement.
+Thus for example, a right granted to the owners and occupiers of a house in Kennington to have free access to the Oval cricket ground on test match days might be annexed to the ownership of that house, and add significantly to its value.
+But it would have nothing to do with the normal use of the property as a home.
+Secondly, the normal use of the dominant tenement may be a residential use or a business use.
+Further, since easements are often granted to facilitate a development of the dominant tenement, the relevant use may be not merely an actual use, but a contemplated use: see for example Moncrieff v Jamieson [2007] 1 WLR 2620, per Lord Neuberger of Abbotsbury, at paras 132 133.
+Thirdly, it is not an objection to qualification as an easement that the right consists of or involves the use of some chattel on the servient tenement.
+Examples include a pump (Pomfret v Ricroft (1668) 1 Saund 321), a lock and a sluice gate (Simpson v Godmanchester Corpn [1897] AC 696), and even a lavatory (Miller v Emcer Products Ltd [1956] Ch 304).
+Fourthly, although accommodation is in one sense a legal concept, the question whether a particular grant of rights accommodates a dominant tenement is primarily a question of fact: see per Evershed MR in In re Ellenborough Park at p 173.
+Recreational rights
+The main controversy in the present case arises because the Facilities Grant conferred recreational and sporting rights, the enjoyment of which may fairly be described as an end in itself, rather than a means to an end (ie to the more enjoyable or full use of the dominant tenement).
+The origin of the controversy lies in the Roman law doctrine that a ius spatiandi cannot constitute a servitude: see per Evershed MR giving the judgment of the Court of Appeal in In re Ellenborough Park, at p 163.
+For present purposes that Latin phrase may simply be translated as meaning a recreational right to wander over someone elses land.
+The difficulty arises as an aspect of the requirement that the right must accommodate the dominant tenement precisely because, generally speaking, the sporting or recreational right will be enjoyed for its own sake, on the servient tenement where it is undertaken, rather than as a means to some end consisting directly of the beneficial use of the dominant tenement.
+Prior to Ellenborough Park, there were inconclusive dicta for and against the recognition of recreational rights as easements.
+Duncan v Louch (1845) 6 QB 904 was about the alleged obstruction of a right of way granted in 1675 over a close called the Terrace Walk.
+Lord Denman CJ said this, at p 913: I think there is no doubt in this case.
+Taking the right, as Mr Peacock suggests, to be like the right of the inhabitants of a square to walk in the square for their pleasure, they paying the necessary rates for keeping it in order, I cannot doubt that, if a stranger were to put a padlock on the gate and exclude one of the inhabitants, he might complain of the obstruction, and a stranger would not be permitted to say that the plaintiffs right was only conditional.
+By contrast, in Mounsey v Ismay (1865) 3 H & C 486, it was decided that a customary public right to hold horse races was not an easement within the meaning of section 2 of the Prescription Act 1832 (2 & 3 Will 4, c 71).
+Baron Martin, delivering the judgment of the court, said, at p 498: we are of opinion that to bring the right within the term easement in the second section it must be one analogous to that of a right of way which precedes it and a right of watercourse which follows it, and must be a right of utility and benefit, and not one of mere recreation and amusement.
+On opposite sides of the same debate may be found Keith v 20th Century Club Ltd (1904) 73 LJ Ch 545 (in favour); International Tea Stores Co v Hobbs [1903] 2 Ch 165 at 172, and Attorney General v Antrobus [1905] 2 Ch 188 at 198 (Farwell J in both cases, against).
+I consider that In re Ellenborough Park should be taken to have been dipositive of this issue for the purposes of English common law, to this extent, namely that it is not fatal to the recognition of a right as an easement that it is granted for recreational (including sporting) use, to be enjoyed for its own sake on the servient tenement.
+The question in every such case is whether the particular recreational or sporting rights granted accommodate the dominant tenement.
+In In re Ellenborough Park the right was to the full use of a garden square (surrounded on three sides by houses and on the fourth by the sea), and the dominant tenements were all the houses surrounding the garden together with a small number of additional houses nearby which did not front onto the square.
+The rights granted did not accommodate those additional houses on the basis that the garden could be seen by persons from the dominant tenement.
+It was only by the permitted use of the garden that the requisite accommodation could be established.
+Evershed MR described the enjoyment contemplated by the full enjoyment of the pleasure ground as follows, at p 168: The enjoyment contemplated was the enjoyment of the vendors ornamental garden in its physical state as such the right, that is to say, of walking on or over those parts provided for such purpose, that is, pathways and (subject to restrictions in the ordinary course in the interest of the grass) the lawns; to rest in or upon seats or other places provided; and, if certain parts were set apart for particular recreations such as tennis or bowls, to use those parts for those purposes, subject again, in the ordinary course, to the provisions made for their regulation: but not to trample at will all over the park, to cut or pluck the flowers or shrubs, or to interfere in the laying out or upkeep of the park.
+He continued: Such use or enjoyment is, we think, a common and clearly understood conception, analogous to the use and enjoyment conferred upon members of the public, when they are open to the public, of parks or gardens such as St Jamess Park, Kew Gardens or the Gardens of Lincolns Inn Fields.
+Turning to the question of accommodation, he continued, at p 174, by contrasting the right granted to the purchaser of a house to use the Zoological Gardens free of charge or to attend Lords cricket ground without payment, with a sale of part of the freehold of a house and garden with a right to the purchaser to use the garden in common with the vendor.
+He said, at pp 174 175: In such a case, the test of connection, or accommodation, would be amply satisfied; for just as the use of a garden undoubtedly enhances, and is connected with, the normal enjoyment of the house to which it belongs, so also would the right granted, in the case supposed, be closely connected with the use and enjoyment of the part of the premises sold.
+Such, we think, is in substance the position in the present case.
+The park became a communal garden for the benefit and enjoyment of those whose houses adjoined it or were in its close proximity.
+It is the collective garden of the neighbouring houses, to whose use it was dedicated by the owners of the estate and as such amply satisfied in our judgment, the requirement of connection with the dominant tenements to which it is appurtenant.
+The result is not affected by the circumstance that the right to the park is in this case enjoyed by some few houses which are not immediately fronting on the park.
+The test for present purposes, no doubt, is that the park should constitute in a real and intelligible sense the garden (albeit the communal garden) of the houses to which its enjoyment is annexed.
+This careful and compelling judgment of the court repays reading in full.
+I have cited the above passages because they demonstrate the following points.
+First, and contrary to the main submission for the appellants in the present case, the Court of Appeals conclusion did not depend upon the rights granted being essentially private in nature.
+On the contrary, they were described as broadly similar to those enjoyed by the public over well known parks and gardens in London.
+Secondly, the rights granted were essentially recreational, although they included limited sporting elements.
+Thirdly, the reason why the accommodation requirement was satisfied was not because the rights were recreational in nature, but because the package of rights afforded the use of communal gardens to each of the townhouses to which the rights were annexed.
+They provided those houses with gardens, albeit on a communal basis, and gardens were a typical feature serving and benefiting townhouses as dominant tenements.
+In the present case the dominant tenement was to be used for the development, not of homes, still less townhouses, but of timeshare apartments.
+Although in terms of legal memory timeshare is a relatively recent concept, timeshare units of this kind are typically occupied for holidays, by persons seeking recreation, including sporting activities, and it is to my mind plain beyond a doubt (as it was to the judge) that the grant of rights to use an immediately adjacent leisure development with all its recreational and sporting facilities is of service, utility and benefit to the timeshare apartments as such, just as (although for different reasons) the grant of rights over a communal garden is of service, utility and benefit to a townhouse.
+The appellants submitted that the grant of such extensive recreational and sporting rights (including the use of a fully serviced and maintained 18 hole championship golf course) could not be regarded as accessory to the timeshare apartment, in the same way that a garden is accessory to a house.
+Rather, Mr Morshead submitted, use of the timeshare apartment was an accessory to the enjoyment of the recreational and sporting rights, so that to treat the rights as an easement for the benefit of the timeshare unit was to allow the tail to wag the dog.
+Reliance for that purpose was placed on Hill v Tupper (1863) 2 H & C 121, in which the owner of the Basingstoke Canal granted the exclusive right to operate a pleasure boating business on the whole canal, annexed to a small strip of land on the canal side near Aldershot, upon which the grantee intended to erect a boathouse.
+Giving the leading judgment Pollock CB said: I do not think it necessary to assign any other reason for our decision, than that the case of Ackroyd v Smith (1850) 10 CB 164 expressly decided that it is not competent to create rights unconnected with the use and enjoyment of land, and annex them to it so as to constitute a property in the grantee.
+The case had been argued on the basis that the exclusive right to operate a pleasure boat business on the canal was in the nature of a profit rather than an easement, by way of analogy with a several fishery or a right of turbary.
+Unlike easements, there is no invariable requirement that a profit accommodate neighbouring land: see Gale on Easements, 20th ed (2017), at para 1 149.
+It appears from the full report of the submissions of counsel, and the judicial interventions therein, that it was not argued that the right granted accommodated the plaintiffs land on the canal side.
+The members of the court appear to have assumed that it did not, although, following In re Ellenborough Park, at least one commentator has suggested that the same facts might now give rise to an easement on that basis: see R N Gooderson, writing in the Cambridge Law Journal [1956] CLJ 24, 25.
+In my view Hill v Tupper was decided on the basis that the grant of a monopoly to carry on a pleasure boat business on the whole length of a canal (which ran from Chertsey to Basingstoke) was by its very nature incapable of constituting a proprietary right, merely by being annexed to the lease of a tiny section of the canal bank, regardless whether it did or did not accommodate the supposed dominant tenement.
+It was held to have been a perfectly valid grant of a personal right, as between the canal owner and the plaintiff lessee.
+But to sue for an infringement of it by another pleasure boat operator would have required the plaintiff to sue in his landlords name as the owner of the canal.
+Hill v Tupper is not therefore authority for the proposition that the grant of rights which accommodate land cannot be an easement unless their enjoyment is capable of being described (in proportionate terms) as subordinate or ancillary to the enjoyment of the dominant tenement.
+Providing that the rights are for the benefit or utility of the dominant tenement as such, it matters not that their enjoyment may be a primary reason why persons are attracted to acquire rights (such as timeshare units) in the dominant tenement.
+The Fourth Condition
+At first sight, the condition that the rights must be capable of forming the subject matter of a grant appears more apposite for testing the validity, as easements, of rights said to have been acquired otherwise than by grant, for example by prescription.
+In In re Ellenborough Park the exact significance of this fourth condition was described, at p 164, as at first sight perhaps, not entirely clear.
+But it has come to be a repository for a series of miscellaneous requirements which have been held to be essential characteristics of an easement.
+They include the requirements that the right is defined in sufficiently clear terms, that it is not purely precarious, so as liable to be taken away at the whim of the servient owner, that the right is not so extensive or invasive as to oust the servient owner from the enjoyment or control of the servient tenement, and that the right should not impose upon the servient owner obligations to expend money or do anything beyond mere passivity.
+It used to be said that this fourth condition included the proposition that a mere right of recreation and amusement which conferred no quality of utility or benefit, could not be an easement.
+I have dealt with this supposed condition by reference to the question whether the grant accommodates the dominant tenement.
+If, as here, the accommodation test is satisfied, then the fact that it may be a right to use recreational or sporting facilities does not, as the Ellenborough Park case makes clear, disable it from being an easement.
+Furthermore, the advantages to be gained from recreational and sporting activities are now so universally regarded as being of real utility and benefit to human beings that the pejorative expression mere right of recreation and amusement, possessing no quality of utility or benefit has become a contradiction in terms, viewed separately from the issues as to accommodation of the dominant tenement.
+Recreation, including sport, and the amusement which comes with it, does confer utility and benefit on those who undertake it.
+Returning to the other aspects of this fourth condition, there is no doubt in this case that the Facilities Grant was in sufficiently clear and precise terms, and it is not said to have been merely precarious.
+The appellants objections have been formulated under the headings of ouster and mere passivity.
+These requirements serve a common public policy purpose, namely to prevent freehold land being permanently encumbered by proprietary restrictions and obligations which inhibit its utility to an unacceptable degree.
+The precise extent of the ouster principle is a matter of some controversy, which it is unnecessary to resolve on this occasion.
+The view of the Law Commission, in its 2011 paper Making Land Work: Easements, Covenants and Profits Prendre at paras 3.207 3.211, is that the scope for litigation created by its uncertainties sufficiently outweighs its utility that it should be abolished.
+The controversy usually causes difficulty in the context of parking rights, and its extent is sufficiently summarised (for present purposes) in the speech of Lord Scott in Moncrieff v Jamieson (supra) at paras 54 to 61 (in which he treated the Scottish law of servitudes as for all relevant purposes the same as the English law of easements).
+Leaving aside cases where the grant confers exclusive possession, which cannot by definition be an easement, the ouster principle rejects as an easement the grant of rights which, on one view, deprive the servient owner of reasonable beneficial use of the servient tenement or, on the other view, deprive the servient owner of lawful possession and control of it.
+In the present case the appellants ouster argument focused upon possession and control rather than reasonable beneficial use.
+It may be summarised as follows.
+The grant of the facilities rights, particularly in relation to the golf course, must be assumed to carry with it a step in right of the dominant owner to manage and maintain the relevant recreational and sporting facilities in the event that, being under no obligation to the dominant owner to do so, the appellants as servient owners ceased to do so themselves.
+A championship golf course requires not merely occasional maintenance but day to day management and supervision, to an extent that would require the dominant owners to take control of the golf course, and other facilities such as tennis and squash courts, if only to regulate their use in accordance with a booking system.
+Thus, the exercise of those step in rights would deprive the appellants of possession or control of the Park, or substantial parts of it, thereby amounting to ouster.
+The judge and the Court of Appeal rejected these submissions, on the basis of a concurrent factual analysis.
+Even the golf course could have been kept in a playable condition (although not as an immaculate championship course) by the exercise of those step in rights, without the dominant owners taking possession or control: see in particular paras 77 and 78 of the judgment of the Court of Appeal, and the analogy drawn with Dowty Boulton Paul Ltd v Wolverhampton Corpn (No 2) [1976] Ch 13, where the right to take off and land airplanes on an airfield enabled the dominant owners to step in and mow the field sufficient to create and maintain runways when the servient owners discontinued its use as an airfield.
+This was held not to amount to an ouster.
+No basis was shown in the appellants submissions to justify this court taking a different view of that essentially factual question.
+But I would go further.
+In my view it is wrong in principle to test the issue whether a grant of rights amounts to an ouster of the servient owner by reference to what the dominant owner may do by way of step in rights if the servient owner ceases to carry out the necessary management and maintenance of the servient tenement.
+This is for two reasons.
+The first is that the ouster question should be addressed by reference to what may be supposed to have been the ordinary expectations of the parties, at the time of the grant, as to who, as between dominant and servient owners, was expected to undertake the management, control and maintenance of the servient tenement.
+In the present case, as the judge held, the plain expectation was that the relevant part of the Park would be managed, controlled and maintained as a leisure complex by its owners, rather than by the owners of Elham House or by the timeshare owners as members of the RVOC.
+The exercise of step in rights by the dominant owners would arise only in the event that the owners of the Park gave up the management, control and maintenance of the recreational and sporting facilities.
+Nothing in the terms of the Facilities Grant impinged upon those rights of management and control in any way.
+The second reason is that step in rights are, by definition, rights to reasonable access for maintenance of the servient tenement, sufficient, but no more than sufficient, to enable the rights granted to be used: see Gale on Easements, 20th ed, at para 1 93 and Carter v Cole [2006] EWCA Civ 398; [2006] NPC 46 per Longmore LJ at para 8(6).
+The dominant owners right is to enter the servient owners land for the purpose, but only to do necessary work in a reasonable manner .
+Provided that, as the courts below have held, the recreational and sporting facilities in the Park could be used by the RVOC timeshare owners without taking control of the Park, then no question of ouster arises.
+Mere Passivity
+It is well settled that (subject to irrelevant exceptions) an easement does not require anything more than mere passivity on the part of the servient owner: see Gale (op cit) at para 1 96 and Jones v Price [1965] 2 QB 618 at 631, per Willmer LJ: properly speaking, an easement requires no more than sufferance on the part of the occupier of the servient tenement, In Moncrieff v Jamieson (supra) at para 47, Lord Scott of Foscote said: the grant of a right that required some positive action to be undertaken by the owner of the servient land in order to enable the right to be enjoyed by the grantee could not, in my opinion, be a servitude.
+He then referred to a right to use a neighbours swimming pool as an example of such a right.
+This does not mean that easements cannot be granted if they involve the use of structures, fixtures or chattels on the servient tenement, which, in the ordinary course, the parties to the grant expect that the servient owner will manage and maintain.
+All it means is that the grant of the easement does not impose upon the servient owner an obligation to the dominant owner to carry out any such management or maintenance.
+The servient owner may do so because he wishes to use the structures, fixtures or chattels for the same purpose as the dominant owner, and has both the possession and control of the servient tenement and more resources than the dominant owner with which to do so.
+The grantor may or may not choose to make enjoyment of the easement conditional upon the dominant owner making a contribution towards the cost of management and maintenance, but no such contribution obligation will lightly be implied.
+There may, as in the present case, be a commercial expectation that the servient owner will undertake the cost and other burdens of management and maintenance, but the fact that the shared commercial expectation may have been (as in the present case) built upon sand rather than rock, so that those burdens prove uneconomic for the servient owner, will not affect the question whether the grant of the relevant rights constitutes an easement.
+I have already mentioned examples of easements calling for the use of fixtures or chattels, such as the lock gates and sluices in Simpson v Godmanchester Corpn, the pump in Pomfret v Ricroft and the humble lavatory in Miller v Emcer.
+Perhaps the most telling example is the grant of a right of way over a route which includes a substantial bridge: see Jones v Pritchard [1908] 1 Ch 630 at 637.
+This may require significant regular maintenance, and (in connection with a freehold easement) the large expense of occasional reconstruction.
+If granted by the owners of a substantial landed estate in favour of the owners of a cottage to which the right of way is the only means of access, it may be inconceivable in the real world that the maintenance, repair and replacement of the bridge will in fact be undertaken by anyone other than the servient owners.
+Nonetheless the grant of the easement carries with it no obligation on the part of the servient owners to carry out maintenance, repair or replacement, even if the bridge were, in the absence of it, to become unusable.
+There is therefore nothing inherently incompatible with the recognition of a grant of rights over land as an easement that the parties share an expectation that the servient owner will in fact undertake the requisite management, maintenance and repair of the servient tenement, and of any structures, fittings or even chattels located thereon.
+The only essential requirement (imposed to prevent land being burdened to an extent contrary to the public interest) is that the servient owner has undertaken no legal obligation of that kind to the dominant owner.
+There plainly was in the present case a common understanding between the respective grantor and grantee of the rights over the recreational and sporting facilities in the Park that the significant cost of the management, maintenance, repair and replacement of the structures, fixtures and, if necessary, chattels, requisite for the enjoyment of those rights would be undertaken by the successive owners of the Park.
+That was the express basis upon which the Regency Villas timeshare units were offered for sale to the public in the promotional materials put in evidence at the trial.
+But the concurrent analysis of the judge and of the Court of Appeal that the Facilities Grant did not of itself impose such obligations on the servient owners of the Park cannot in my view be faulted.
+True it is that, in the same document, the original grantor undertook a personal maintenance obligation to the original grantee, but this was (or should have been) known at the time of the conveyancing to have a one day limited life, because of the intention that there should be an immediate further transfer of Elham House.
+This personal covenant did not form part of the Facilities Grant.
+The appellants submitted nonetheless that the Facilities Grant was no more than illusory as a grant of rights of practical utility for an unlimited period unless the owners for the time being of the Park undertook responsibility to the dominant owners for the substantial cost of management, maintenance, repair and renewal.
+They relied on Lord Scotts example of the swimming pool, although it was only an obiter observation in a case about parking rights.
+The courts below rejected this on the facts, concluding that some meaningful use, even of the golf course and the swimming pool, could be enjoyed by the RVOC timeshare owners, even if the appellants or their successors as owners of the Park were altogether to discontinue the business of operating the relevant part of the Park as a leisure complex.
+Greens and even fairways on the golf course could be mown.
+The swimming pool could be kept full of water.
+Timeshare owners could provide their own nets for the tennis courts, hoops for the croquet lawn and (if necessary with the use of a generator) lighting for the squash courts.
+The appellants submitted with force that this would be nothing like the proffered use of a high quality leisure complex held out to prospective timeshare owners in and shortly after 1981, but nothing in their submissions provided a basis upon which this court could properly depart from the factual findings of the courts below that some less attractive but still worthwhile use could be made of the facilities in those circumstances.
+This conclusion, that meaningful use of the rights granted did not depend upon the continued provision of management, maintenance, repair and renewal by the servient owners, is also sufficient to confirm that use of the facilities was granted by way of right, rather than merely by way of temporary offering, revocable by the servient owners at any time, by discontinuing management and maintenance.
+It is not difficult to imagine recreational facilities which do depend upon the active and continuous management and operation by the servient owner, which no exercise of step in rights by the dominant owners would make useable, even for a short period.
+Free rides on a miniature steam railway, a covered ski slope with artificial snow, or adventure rides in a theme park are examples which would probably lie on the wrong side of the line, so as to be incapable of forming the subject matter of an easement.
+But the precise dividing line in any particular case will be a question of fact.
+It is in this context to be borne in mind, as already explained, that the Facilities Grant extended only to such sporting or recreational facilities as existed within the Park from time to time.
+It did not oblige the servient owner to maintain or operate any particular facilities, or any facilities.
+It is perfectly possible that, in relation to some of them, the exercise by the dominant owners of step in rights, after discontinuation of operation and maintenance by the servient owners, would not make them useable by the dominant owners indefinitely.
+That was an inherent limitation in the value of the Facilities Grant, but it does not deprive it of the character of an easement.
+Overview
+My analysis thus far demonstrates, as it did to the courts below, that the Facilities Grant exhibited all the well settled essential characteristics of an easement or easements, viewing each of the four characteristics (and the sub characteristics of the fourth) separately.
+But it still leaves open the wider question whether the grant for timeshare owners of comprehensive rights to the use and enjoyment of recreational and sporting facilities in an adjacent leisure complex is something which the law of easements ought to comprehend, looking at the matter in the round rather than in a series of compartments.
+The facilities granted in the present case undoubtedly broke new ground within the context of easements, beyond that established in In re Ellenborough Park, and this court is in any event not bound to follow that decision, if it considers it to have been wrong, either on its facts, or in the application of settled principles undertaken by Court of Appeal.
+The Facilities Grant in the present case may be treated as breaking new ground by comparison with In re Ellenborough Park, in three main respects.
+First, as Lord Carnwath points out, the nature and extent of the recreational and sporting facilities granted at Broome Park was much greater, and their full enjoyment called for much more intensive management, than that afforded in Ellenborough Park.
+An 18 hole golf course and a heated swimming pool by their nature require more management and maintenance than an ornamental garden, even if Ellenborough Park may also have included tennis courts and a bowling green.
+Secondly, Ellenborough Park was made available to a limited number of dominant owners, whereas the facilities at Broome Park were available to two, later three, different groups of timeshare owners and to paying members of the public.
+Thirdly, the cost of managing and maintaining Ellenborough Park was shared among the dominant owners, whereas in Broome Park it was at least expected to be undertaken by the servient owners.
+Additionally, the grant in this case can only be described as a right of recreation and amusement.
+It is a recreational right pure and simple (treating sport as part of recreation) whereas in In re Ellenborough Park the Court of Appeal fought shy of describing it in those terms, preferring to identify its essential feature as the provision of a communal garden for townhouses.
+Before expressing a conclusion, I must briefly identify factors pointing in favour of, and against, this extension of the law to recognise this new species of easement.
+In favour of doing so is the principle that the common law should, as far as possible, accommodate itself to new types of property ownership and new ways of enjoying the use of land.
+The timeshare development, which is quintessentially for holiday and recreational use, is just such a new type, and the common law should accommodate it as far as it can.
+Secondly, recreational easements have become widely recognised in the common law world.
+Thus in Riley v Penttila [1974] VR 547, the Supreme Court of Victoria recognised as an easement the grant of land within a residential development for the purposes of recreation over a garden or a park, in favour of residential lots, enthusiastically following the lead given in In re Ellenborough Park.
+In Dukart v Corpn of the District of Surrey [1978] 2 SCR 1039 the Supreme Court of Canada recognised as easements the grant in favour of residential lots on a development plan of rights to use foreshore reserves separating the lots from a bay, treating the analysis in In re Ellenborough Park as applying all the more emphatically in the case of a beach pertinent to a resort development (p 1052), and treating it as well settled that a ius spatiandi could be the subject matter of an easement.
+The Supreme Court stated in its declaratory order that the right so granted includes the right to promenade freely across the whole of the Foreshore Reserves and not merely to cross directly from the edge or front of Lot 38 to the waters of Boundary Bay: pp 1070 1071.
+Furthermore, the rights were not exclusive to the lot owners but were to be shared with certain more limited rights of public access from roads terminating short of the bay, and therefore across the foreshore reserves.
+In Blankstein v Walsh [1989] 1 WWR 277 the High Court of Manitoba recognised as an easement, acquired by prescription, recreational rights to use a communal playground, in favour of the owners of adjoining holiday cottages.
+In City Developments Pty Ltd v Registrar General of the Northern Territory [2000] NTSC 33, 135 NTR 1 the Supreme Court of the Northern Territory (affirmed by the Court of Appeal of the Northern Territory) recognised as an easement the grant of rights over a lakeside resort near Darwin for private recreational purposes, treating it as clearly established that a right of recreation may be the subject of a valid easement by reference to Halsburys Laws of Australia: [2001] NTCA 7, para 18.
+Against the broad recognition of recreational rights over a leisure complex as easements are two main factors.
+First, if annexed to a freehold, they are indeterminate in length, whereas a timeshare structure is frequently set up for a limited number of years.
+Furthermore the rights conferred are likely to burden the servient land long after the leisure complex in question has outlived its natural life.
+There is at present no statutory basis for the modification or discharge of easements, such as exists in relation to restrictive covenants, although the Law Commissions 2011 report proposes that there should be.
+Secondly, the use of easements as the conveyancing vehicle for the conferring of recreational rights for timeshare owners upon an adjacent leisure complex is hardly ideal, by comparison for example with a leasehold structure of the type used in this case for the BPOC timeshare owners.
+Although obligations to share the cost of management, maintenance, repair and renewal may be attached as conditions for the enjoyment of an easement (as they were in In re Ellenborough Park) there is no way in which enforceable obligations of that kind may be imposed upon the servient owners so that the burden of them runs with the servient tenement, in the same way that the burden of positive covenants may be made to run with a leasehold reversion.
+I have described how effective the leasehold scheme was for the BPOC timeshare owners, in enabling them to take proceedings to require the owners of Broome Park to construct a swimming pool, after the original open air pool had been filled in.
+In my view this court should affirm the lead given by the principled analysis of the Court of Appeal in In re Ellenborough Park, by a clear statement that the grant of purely recreational (including sporting) rights over land which genuinely accommodate adjacent land may be the subject matter of an easement, provided always that they satisfy the four well settled conditions which I have described.
+Where the actual or intended use of the dominant tenement is itself recreational, as will generally be the case for holiday timeshare developments, the accommodation condition will generally be satisfied.
+Whether the other conditions, and in particular the components of the fourth condition, will be satisfied will be a question of fact in each case.
+Whatever may have been the attitude in the past to mere recreation or amusement, recreational and sporting activity of the type exemplified by the facilities at Broome Park is so clearly a beneficial part of modern life that the common law should support structures which promote and encourage it, rather than treat it as devoid of practical utility or benefit.
+I would therefore dismiss the appeal.
+The Cross appeal
+The essence of the disagreement between the judge and the Court of Appeal which has led to the cross appeal may be summarised as follows.
+The judge regarded the Facilities Grant as, in substance, the grant of a single easement to use all such recreational and sporting facilities as might be provided from time to time within the leisure complex (including the Mansion House).
+At para 44 of his reserved judgment he explained this conclusion in the following way: There is nothing vague or of excessive width in the present rights.
+They clearly extend to all recreational and sporting facilities on the estate, and to the gardens, and must in my judgment include facilities that were not there or planned in 1981, or which may have been significantly improved since then.
+To construe the rights as limited to the actual facilities which were on site or planned in 1981 is unrealistic and might inhibit the servient owner from introducing improvements or replacements or adding facilities which would be for everyones benefit.
+I say that because any alteration to the facilities, if the rights did not extend to the new or replacement facilities, might amount to a substantial interference with the claimants existing rights.
+That cannot have been intended on any sensible construction of the rights.
+Moreover, such a construction would allow the defendants to advantage from their own default or that of their predecessors, who filled the outdoor pool in before the defendants constructed a new one in the basement of the Mansion House.
+The point is perhaps academic as the rights under the 1981 Transfer expressly extend to the basement, where the pool now happens to be.
+The Court of Appeal said that this was the wrong approach.
+It was held, at para 40 of the judgment of the court, that the most natural meaning of the words of the grant was a grant of rights in the nature of separate easements only over those sporting and recreational facilities already in existence on the Park at the time of the grant.
+This would therefore exclude new or substitute facilities constructed or laid out in a different part of the complex from the location of the original facilities, and also exclude rights over the ground floor and basement of the Mansion House which were not, viewed separately, recreational or sporting facilities, so as, for example, to exclude the use of the restaurant.
+The court then went on to look at each facility in turn, treating it as the subject of a separate grant of rights relating to a separate part of the Park.
+Thus the rights granted over the Italianate gardens, the tennis courts, the squash courts, the putting green and croquet lawn, the outdoor pool and the golf course all qualified as easements.
+By contrast the rights claimed over the reception area, billiard room and TV room on the ground floor of the Mansion House, and over the restaurant, bar, gymnasium, sun bed and sauna area in the basement, all failed to qualify.
+This was, because, viewed individually, none of them amounted to a sporting or recreational facility, the court observing in passing that a restaurant is not like a toilet and that the modern approach to taking physical exercise is not really applicable to recreational indoor games such as snooker or to watching television: para 80.
+Furthermore, the Court of Appeal concluded that, if the leisure business was closed, and the Park owners chattels removed, it would be stretching language to describe the bare room occupied in 1981, but no longer occupied, by a billiard table, as a billiard room.
+The same analysis was applied in relation to the gymnasium.
+The result was that the court concluded that there had not in 1981 been any valid grant of an easement over the ground floor or basement of the Mansion House.
+Since the new basement swimming pool replaced the original pool but on a different part of the leisure complex, the dominant owners acquired no rights over it.
+I have already indicated my clear preference for the judges simple and common sense analysis.
+There is in my view no answer to the judges pithy observation that to construe the rights as limited to the actual facilities on site or planned in 1981 is unrealistic, and that it would be likely to inhibit the servient owner from introducing improvements or replacements, or adding facilities, for the benefit of all users of the leisure complex in the Park.
+In my view the Court of Appeals approach, looking at the facilities grant as if it were a grant of separate rights to each facility, affecting separate and distinct parts of the complex, failed to see the wood for the trees.
+It is fair comment that counsel for the respondents provided less than full blooded support during oral argument for the judges simple analysis, although they did in subsequent written submissions.
+This reluctance was apparently because of a concern about the effect of the law relating to perpetuities upon what, on one view, might be regarded as the grant of future easements.
+But this concern was, in my view, misplaced for the reason which I have already given.
+I have also explained why, in my view, the absence of express words of futurity in the Facilities Grant is more than compensated for by the nature of the subject matter, namely rights to use sporting and recreational facilities in a leisure park on an indefinite basis.
+The timeshare owners in the Mansion House were plainly granted rights to use all such facilities as might be there from time to time, and it makes no sense at all to think that the parties to the grant of rights to the Regency Villas timeshare owners over the same leisure complex actually intended that they should have a steadily reducing set of rights, as alterations, replacements and improvements were made to the leisure complex over time.
+In written submissions after the hearing the appellants advanced additional reasons why the judges construction could not be correct.
+First, it was said that the Regency Villas timeshare owners would then benefit from a later decision by the servient owner to construct leisure or sporting facilities within that large part of the Park (as defined) to which the leisure complex did not extend in 1981.
+Part of it remained farmland, and still does.
+Secondly it was submitted that if the Transferor (or a successor) sold off parts of the Park for residential development and houses were built with private gardens or swimming pools, then the Regency Villas timeshare owners would have the free use of them as well.
+It may be that developments of that kind (none of which appear to have occurred) might throw up issues of construction with which the court might have to grapple.
+A possible answer might have been that the ambit of the locus in quo to which the Facilities Grant extended was confined to the Mansion House and the curtilage of the rest of the leisure complex as it then stood, but still leaving the servient owner free to substitute and re locate particular facilities within that curtilage, without either depriving the Regency Villas timeshare owners of their use, or enabling them to veto any such changes.
+Another answer (to the private gardens and pool point) may be that the facilities grant applied only to facilities constructed for multiple use, as part of the leisure complex.
+But these considerations do not in my view stand in the way of recognising the good sense and practicality of the judges interpretation, in preference to that of the Court of Appeal.
+It also makes no sense to conclude that the Regency Villas timeshare owners were to have no enduring rights to the facilities in the ground floor and basement of the Mansion House, which constituted the heart of what was plainly intended to be a country club.
+While it may be that a restaurant, viewed on its own, is not a recreational or a sporting facility, it is perfectly capable of being viewed as part of a sporting or recreational complex.
+There were no doubt communal lavatory facilities in the Mansion House to which the same analysis would apply.
+The parties to the 1981 Transfer cannot sensibly have intended to exclude the RVOC owners from access to the restaurant, the lavatories, or to any other communal parts of the ground floor and basement of the Mansion House.
+There is also in my view no real basis for the sharp distinction which the Court of Appeal drew between outdoor and indoor recreational and sporting facilities.
+A gym, a sauna, a billiard room and a TV room are no less recreational than a formal garden or a golf course.
+An enclosed squash court is no less sporting than an open air tennis court.
+Furthermore, the focus of the Court of Appeal on the importance of the servient owners chattels to the use of the billiard room, gymnasium and sauna within the Mansion House, while correct as a matter of fact, does not justify their exclusion from the appropriate subject matter of a recreational easement.
+For the reasons already given, it is no objection to the recognition of a right as an easement that it may be exercised over, or with the use of, chattels or fixtures on land, rather than merely over the land itself.
+My preference for the judges construction of the Facilities Grant over that adopted by the Court of Appeal is decisive of the outcome of the cross appeal.
+The new indoor swimming pool was, from the moment of its completion, a recreational or sporting facility constructed and made available within the leisure complex in the Park.
+The dominant owners already enjoyed rights over the communal parts of the ground floor and basement of the Mansion House which, viewed as part of the grant of a recreational easement over the leisure complex as a whole, were perfectly capable of having the enduring quality of an easement, or part of an easement.
+The result is, that for both of those reasons, but primarily the first of them, the respondents recreational easement extended to the new indoor swimming pool from the moment of its completion, as the judge held.
+I would therefore allow the cross appeal, and restore the judges consequential orders, including his order for monetary compensation, to be assessed, for the payment under protest by the respondents for the use of the facilities, in particular the swimming pool, in and after 2012.
+LORD CARNWATH: (dissenting)
+Since I am in a minority, I will explain my thinking relatively briefly.
+I gratefully adopt Lord Briggs comprehensive account of the factual and legal background.
+With one important qualification I agree with, or am prepared to accept, his analysis.
+I would be very happy to go further, since the merits seem all one way.
+There is no doubt that the respondents were intended to have free access to the recreational facilities on the estate.
+But for an elementary conveyancing error by the original vendors solicitors, they should also have had the benefit of a covenant by the owner of the estate to maintain those facilities.
+Instead they have been faced with years of uncertainty and dispute.
+However our view of the merits should not allow us to distort the correct understanding of a well established legal concept.
+Nor is there any need to do so.
+Whatever our conclusion on this appeal, no one suggests that the conveyancing technique used in this case is a suitable model for future time share arrangements of this kind.
+The important qualification relates to the nature of the right asserted.
+An easement is a right to do something, or to prevent something, on anothers land; not to have something done (see Gale on Easements, 20th ed (2017), para 1 80).
+The intended enjoyment of the rights granted in this case, most obviously in the case of the golf course and swimming pool, cannot be achieved without the active participation of the owner of those facilities in their provision, maintenance and management.
+The same may apply to a greater or lesser degree to other recreational facilities which have been or might be created, such as the skating rink or the riding stables (who provides and keeps the horses?).
+Thus the doing of something by the servient owner is an intrinsic part of the right claimed.
+Neither principle, nor any of the 70 or so authorities which have been cited to us, ranging over 350 years, and from several common law jurisdictions, come near to supporting the submission that a right of that kind can take effect as an easement.
+This point is if anything underlined by Lord Briggs use of such expressions as country club and leisure complex (paras 1, 83) to describe the enterprise.
+In effect what is claimed is not a simple property right, but permanent membership of a country club.
+He recognises that it would be a new species of easement, but sees it as justified by the need to accommodate new ways of enjoying the use of land and as a natural development of the recreational easements widely recognised in the common law world (paras 76 77).
+However, none of the cases which he cites (paras 77 78) involves more than access to land for the purposes of walking and enjoyment as a garden or park in much the same way as in In re Ellenborough Park [1956] Ch 131.
+I agree that those cases lend support to the affirmation at this level of the Court of Appeals reasoning in that case, but not for extending it to create a wholly new form of property right.
+Furthermore, as Lord Briggs accepts, there are other and better legal procedures for dealing with this new way of enjoying land, if that is what it is.
+This limitation was clearly recognised (albeit obiter, and in the context of the Scottish law of servitudes) by Lord Scott of Foscote in Moncrieff v Jamieson [2007] 1 WLR 2620, at para 47.
+Subject to a few qualifications he saw no reason why any right of limited use of the land of a neighbour that is of its nature of benefit to the dominant land and its owners from time to time should not be capable of being created as a servitudal right in rem appurtenant to the dominant land His second qualification is directly relevant and merits quotation in full: A second necessary qualification to the proposition afore stated would be that the grant of a right that required some positive action to be undertaken by the owner of the servient land in order to enable the right to be enjoyed by the grantee could not, in my opinion, be a servitude.
+Thus the grant of a right of way over a driveway cannot place on the servient owner the obligation to keep the driveway in repair: see Jones v Pritchard [1908] 1 Ch 630, 637.
+The dominant owner would be entitled, although not obliged, as a right ancillary to his right of way to do such repairs to the driveway as were necessary or desirable.
+On the other hand I doubt whether the grant of a right to use a neighbours swimming pool could ever qualify as a servitude.
+The grantor, the swimming pool owner, would be under no obligation to keep the pool full of water and the grantee would be in no position to fill it if the grantor chose not to do so.
+The right to use the pool would be no more than an in personam contractual right at best.
+That passage draws a significant distinction between two situations.
+The first is where the position of the servient owner is essentially passive, but the dominant owner is able, as a right ancillary to his right of way, to make good any failure to keep the way in repair.
+The availability of such a limited, and clearly defined, ancillary right does not detract from the validity of the servitude or easement.
+The second, by contrast, is where active participation by the servient owner is an intrinsic part of the intended right.
+Lord Scott referred simply to filling the pool, but he might have added a reference to the active maintenance which is needed to keep a modern pool in safe and useable condition.
+Sir Geoffrey Vos C [2017] Ch 516 acknowledged the problem but did not see it as insuperable:
+Similarly in respect of the golf course, he recognised that: We accept that modern swimming pools will often have sophisticated filtration, heating, chlorination, and water circulation systems.
+But such systems are not essential to the benefit and utility of using the pool.
+Water is obviously essential, but that can, as the judge indicated, be provided by the owner of the dominant tenement if the servient owner closes his business or allows the pool to fall into disrepair.
+The same applies to any desirable filtration or other plant.
+Simply providing the necessary water or even ones own filtration plant cannot be regarded as sharing possession of the land on which the pool is constructed . (para 72) contemporary golf courses have sophisticated networks of landscaped, manicured and irrigated tees, bunkers and greens, punctuated by sheds and shelters, tarmacked paths, sand boxes, pro shops and club houses. 76.
+The difficulty posed by an easement of this modern kind of golf course, which we assume for this purpose was closer to the one that was opened at Broome Park Estate in mid 1981, is the large amount of maintenance required to keep it in what many would regard as a playable condition.
+We are all familiar with the teams of groundsmen and greenkeepers that such courses need to employ to maintain them to the high standard that players frequently desire.
+However again he thought the problem not insuperable: 77.
+As regards the validity of an easement to use a fully maintained golf course, we take the view that it is necessary to consider what would occur if, as was common ground could happen, the servient owner closed or ceased to maintain it.
+As with providing the water for the swimming pool, the dominant owners could mow the grass and take any other necessary steps to make the course playable.
+Such mowing was accepted by the Court of Appeal to be appropriate in relation to a grass airfield in Dowty Boulton Paul Ltd v Wolverhampton Corpn (No 2) [1976] Ch 13. (para 77) He did however (unlike the judge) accept some limits to this approach, in respect of facilities on the ground floor of the Mansion House (such as the billiard and TV rooms), when rejecting the respondents submission that this was no more than a right to use the common parts: We think this submission proves too much.
+It shows that the right granted is really not in the nature of an easement at all.
+It is not about the use of any land, but the use of facilities or services that may for the time being exist on the land.
+As with the case of the restaurant which was in the basement in 1981, we cannot see how there can properly be an easement over such a service area.
+A restaurant is not like a toilet (over which an easement may exist as we have mentioned).
+It can only be useful and a benefit if someone cooks the food and sells it to the user.
+Likewise, a TV room is of no benefit without a TV.
+The tennis court and golf course are both proper uses of the servient land.
+The grant of the right to use recreational facilities on the ground floor of the Mansion House was really no more than a personal right to use chattels and services provided by the defendants (para 80) This is a false distinction in my view.
+The essence of the grant, in respect of the golf course and swimming pool, no less than the others, was to use recreational facilities provided by the servient owners.
+Lord Briggs deals with this issue first in the context of arguments about ouster (paras 62 65).
+I am inclined to agree with him, contrary to the appellants submissions, that the ouster question should be judged by reference to the ordinary expectations at the time of grant, rather than to possible exercise of step in rights.
+However it is with the following passage, under the heading Mere passivity, that I feel bound to take issue.
+Having accepted that an easement requires no more than sufferance on the part of the servient owner, he dismisses the appellants reliance on Lord Scotts observations in Moncrieff, by reference to what he deems the factual findings of the courts below that some less attractive but still worthwhile use could be made of the facilities in those circumstances. (para 71)
+I find this difficult to accept.
+It is not clear to me that the courts below made any true factual findings on this question, nor indeed that there was any evidence on which they could properly to do so.
+There was plenty of evidence about the nature and cost of the maintenance actually carried out by the estate. (See for example the evidence of Mr Robson, Head of Maintenance, para 10, as to the contracts for the maintenance of the pool.) There appears to have been no evidence as to what might realistically have been done by the residents, collectively or individually, in the absence of such central management.
+What is involved is not simply maintenance or repair, as in the case of a right of way, or even the mowing of a disused airstrip as in Dowty Boulton (see below); but taking over the organisation and management of a leisure complex (in Lord Briggs words).
+The judge dealt with this point very briefly, but by reference to legal theory rather than practical evidence: Mr Latimer also says, as is not disputed, that the rights cannot take effect as easements if the existence of the easements requires expenditure of money by the defendants, or the carrying on of a business by them.
+Yet the existence of the rights claimed produces no such requirement.
+The defendants could (as happened in the past) neglect the maintenance and upkeep of the estate allowing it to fall into disrepair.
+They could cease carrying on business at the estate for that reason, or on purely economic grounds, whether or not disrepair required the closure.
+In that case, if the rights take effect as easements, the claimants could intervene and, at their own expense, maintain and repair the facilities themselves, and tend the gardens: see generally Carter v Cole [2006] EWCA Civ 398 at para 8 . (para 52) Carter v Cole does indeed contain an authoritative summary by Longmore LJ of the ancillary rights of the dominant owner, but that was in the context of rights of way.
+The case tells one nothing about the practicalities of running and maintaining a modern golf course or swimming pool.
+The judge did, it is true, say that he saw no reason why the claimants could not provide their own water supply if necessary from a tanker (para 64); but this appears to have been his own suggestion rather than one based on any evidence of what would be required in practice to maintain the pool in safe condition.
+The only case relied on by Sir Geoffrey Vos C in this context, Dowty Boulton Paul Ltd v Wolverhampton Corpn (No 2) [1976] Ch 13, is of no assistance.
+The actual decision turned on other issues, so that anything said about the claimed easement was obiter.
+It seems to have been assumed that the disused airfield could be made suitable for the limited use to be made of it by the appellants by no more than mowing.
+On that basis Russell LJ was prepared to proceed on the assumption (p 24C D) that the right to use the airfield was capable of existing as an easement with the ancillary right to mow to make it useable.
+The case tells one nothing about the view that would have been reached if the right had been claimed over an operational, commercial airfield.
+The appellants raise a related problem concerning the element of choice.
+In respect of a right of way over a strip of land, or even over a bridge, there is no doubt about what is required by way of step in rights.
+Here there is no such clarity.
+As submitted in their case: A right to enjoy facilities being run by the servient owner is defined by the active choice and implementation of the servient owner.
+It chooses the location of the bunkers, the layout of the gardens from time to time, the temperature and depth of the water in the pool no less than it chooses the menu in the restaurant, the range of equipment in the gym and the loudness of the music within it.
+There is no right in the dominant owner to exercise its right in any different, or any particular way.
+The scope of the right is defined by the active choices and implementation of the servient owner from time to time.
+This perhaps is a less strong point in respect of the swimming pool, the physical characteristics of which are clearly defined, and unlikely to change.
+However, in respect of the golf course it seems to me unanswerable.
+It is true that in Ellenborough Park the use was to some extent subject to decisions made by the servient owner as to the layout of the garden, and included the possibility of some sporting activity.
+The use was described by Evershed MR: The enjoyment contemplated was the enjoyment of the vendors ornamental garden in its physical state as such the right, that is to say, of walking on or over those parts provided for such purpose, that is, pathways and (subject to restrictions in the ordinary course in the interest of the grass) the lawns; to rest in or upon the seats or other places provided; and, if certain parts were set apart for particular recreations such as tennis or bowls, to use those parts for those purposes, subject again, in the ordinary course, to the provisions made for their regulation; but not to trample at will all over the park, to cut or pluck the flowers or shrubs, or to interfere in the laying out or upkeep of the park (p 168) However, these matters seem to have been treated as no more than incidental to the enjoyment of the garden as a place for walking, rather than as here essential to the purpose of the grant.
+Further, the enjoyment was subject to the dominant owners obligation to contribute to the cost of maintenance, and there was no discussion of what might happen in the event of failure to maintain.
+The court was not faced, as in this case, with the commercially incoherent position that the dominant owner is under no obligation to operate and maintain the recreational facilities which are essential to the grant, but has no right to recover the costs if he does so.
+I also find it difficult to see the limits of the majoritys approach.
+One could imagine, for example, similar time share apartments built on a theme park, and offering free access to the various rides on the park.
+It would I think be quite clear that the rides and other attractions could not be sensibly and safely enjoyed without active management and supervision of their owner.
+In theory, no doubt, if the owner defaulted, the dominant tenants could form their own management company and take over the running of the park.
+But it would in my view be unarguable that such a right could take effect as an easement or property interest.
+I accept that are some elements of the recreational facilities, notably the Italianate gardens, which lend themselves much more readily to a traditional understanding of an easement.
+However, like the majority, and in disagreement with the Court of Appeal, I would be inclined to regard this as a composite package of rights which stands or falls as a whole.
+Since I am in a minority it is unnecessary to pursue that issue further.
+It is also unnecessary to consider further the issues relating to the claimed quantum meruit.
+Finally, I comment briefly on the issues raised by the post hearing exchanges in connection with the rule against perpetuities (Lord Briggs paras 27ff).
+These arose from the interest shown by some members of this court in the question of future facilities.
+The background as I understand it is as follows.
+The judge held that the rights extended not only to recreational facilities existing at the date of grant, but to future replacements or additions.
+He said: There is nothing vague or of excessive width in the present rights.
+They clearly extend to all recreational and sporting facilities on the estate, and to the gardens, and must in my judgment include facilities that were not there or planned in 1981, or which may have been significantly improved since then.
+To construe the rights as limited to the actual facilities which were on site or planned in 1981 is unrealistic and might inhibit the servient owner from introducing improvements or replacements or adding facilities which would be for everyones benefit (para 44)
+In this passage he seems to have gone beyond the case as advanced at trial by the present respondents.
+Although their pleadings had asserted rights over any sporting or recreational facilities which may from time to time be provided on the Broome Park Estate, their case at trial was more limited.
+The right was said to extend to facilities existing at the date of grant, and to later facilities constructed either in direct substitution for existing facilities, or as extensions of them.
+In the Court of Appeal the present respondents supported the judges view, but there seems to have been some doubt as to how far it went.
+In their submission, as understood by the court, the grant would not extend to wholly new facilities on a part of the estate where none had previously existed, but would include, for example, an extension onto new land of the golf course (para 36).
+The court took a more limited view: The question of whether a minor or de minimis extension to the land used by the existing or replacement facilities does not arise on the facts of this case.
+But we would be inclined to accept that such an incremental increase in the land used by the golf course or, say, a small extension to the existing land used by the swimming pool or to the run back used by the tennis courts, would be covered on the proper construction of the grant.
+A completely new facility on new ground would not be covered, but a replacement facility, even one that had been slightly extended beyond the ground used by the original facility, would be. (para 44)
+The appellants submissions support this limited view.
+I note three points in particular.
+Firstly, they rely on the ordinary construction of the words of the grant which are expressed in the present tense, and say nothing about future facilities.
+They contrast para 2 which refers in terms to pipes and drains now in the land or constructed within 80 years of the date hereof.
+Secondly, they point out that the Transferors adjoining estate (the expression used in the grant) extends to a large area (some 90 acres) of mainly agricultural land.
+It cannot sensibly have been intended that this large area would be burdened for ever with rights to future recreational facilities created anywhere at any time in the future.
+Thirdly, such a construction would come into direct conflict with the rule against perpetuities.
+As they point out, there is authority for the proposition that the rule is not offended by a right which may allow for future substitutions (see eg Dunn v Blackdown Properties Ltd [1961] Ch 433, 440 per Cross J), but none for a right over wholly new facilities which may be created anywhere over an area of this size.
+I see considerable force in all these points.
+Although it is not necessary for the purposes of this appeal to reach a definitive view on the future extent of the grant, the Court of Appeal were right in my view to construe it narrowly.
+Lord Briggs seeks to avoid the problem by treating the grant as limited to the leisure complex.
+However, that is not what the document says, nor indeed is it clear precisely what physical area would be so defined.
+For these reasons, in respectful disagreement with the majority, I would have allowed the appeal.
diff --git a/UK-Abs/test-data/judgement/uksc-2017-0096.txt b/UK-Abs/test-data/judgement/uksc-2017-0096.txt
new file mode 100644
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@@ -0,0 +1,247 @@
+This appeal is concerned with the interpretation of a policy of motor insurance.
+The question is whether the policy confers on the insured owner of a vehicle an indemnity against liability for damage caused to the property of a third party which was caused by his acts when he was carrying out substantial repairs to his car in the commercial premises of his employer.
+The appeal also raises questions about the meaning of the phrase, damage caused by, or arising out of, the use of the vehicle on a road or other public place in section 145 of the Road Traffic Act 1988, which defines the compulsory insurance requirements for the use of vehicles on such places.
+The factual background
+The facts behind this appeal can be stated briefly.
+In 2010 Mr Thomas Holden was a mechanical fitter employed by the appellants, R & S Pilling, who traded as Phoenix Engineering (Phoenix).
+He was the owner of a car and held a motor insurance policy (the Policy) with the respondents (UKI).
+On 11 June 2010 Mr Holdens car failed its MOT because of corrosion to its underside.
+On the following day, he asked his employer, Phoenix, if he could use the loading bay in its premises to carry out work on his car in the hope that he could enable it to pass its MOT.
+He intended to weld some plates onto the underside of the car to deal with the corrosion.
+His employer agreed.
+He disconnected his car battery to make sure there were no live circuits.
+He then used a fork lift truck to lift the car onto the drivers side to gain access to the underside of the vehicle.
+He first used a grinder to prepare the underside for welding and then welded a plate under the drivers side.
+He then re connected the battery, started the car and moved it round the other way before again disconnecting the battery, and lifting it up to expose the underside on the passengers side of the vehicle.
+He started welding but then stood up to answer a phone call.
+When he did so, he saw flames inside the car: sparks from the welding had ignited flammable material inside the car, including the seat covers.
+As the fire spread, it set alight some rubber mats which were lying close to the car.
+The fire then took hold in Phoenixs premises and in adjoining premises and caused substantial damage before it was put out.
+Phoenix was insured against property damage and public liability by AXA which had to pay out over 2m to Phoenix and the owner of the adjoining premises.
+AXA made a subrogated claim in Phoenixs name against Mr Holden.
+Mr Holdens only insurance policy which arguably might cover Phoenixs claim (the claim) is the Policy.
+As a result, UKI brought an action seeking a declaration that it is not liable to indemnify Mr Holden against the claim, and AXA, denying this, counterclaimed for an indemnity.
+Mr Holden was named as first defendant in the action but has taken no part in the proceedings because he is not at risk: AXA has undertaken to limit its recovery to such sum, if any, as it can obtain from UKI.
+The real dispute is therefore between the two insurance companies.
+At its simplest, UKI says that the Policy does not respond to third party claims involving the car while the car is being repaired on private premises, such as Phoenixs garage.
+Phoenix contends that the Policy covers accidents involving the car off road and that in any event the repair of the car can properly be described either as the use of it, or as arising out of its use, on a road or other public place.
+The question is the correct interpretation of the Policy against the background of domestic and EU legislation which imposes compulsory third party insurance in respect of motor vehicles.
+The motor insurance policy
+The documents which are relevant to Mr Holdens insurance cover are (a) the policy set out in UKIs policy booklet, (b) the certificate of motor insurance (the certificate), (c) the motor insurance schedule (the schedule) and (d) the motor proposal confirmation (the confirmation).
+The policy booklet instructed the insured that he must read the four documents as a whole.
+The policy booklet set out in section A the insurance cover in relation to the insureds liability to other people.
+It provided in clause 1a: Cover for you We will cover you for your legal responsibility if you have an accident in your vehicle and: you kill or injure someone; you damage their property; or you damage their vehicle.
+Clause 2 provided the following cover for other people: We will also provide the cover under section 1a for: anyone insured by this policy to drive your vehicle, as long as they have your permission; anyone you allow to use but not drive your vehicle, for social or domestic purposes; anyone who is in or getting into or out of your vehicle; The booklet listed what was not covered under section A, including liability for more than 20m for any claim or series of claims for loss of or damage to property, and also liability caused by acts of terrorism, unless such cover was compulsory under the Road Traffic Acts.
+The booklet contained general exceptions and stated: 1.
+Who uses your vehicle We will not cover any injury, loss or damage which takes place while your vehicle is being: driven or used by anyone not allowed to drive it, or used for any purpose not allowed by the Certificate of Motor Insurance or Schedule; or driven by someone who does not have a valid driving licence or is breaking the conditions of their driving licence.
+This exception does not apply if your vehicle is: with a member of the motor trade for maintenance or repair; stolen or permission; or being parked by an employee of a hotel, restaurant or car parking service. taken away without your The general exceptions also excluded damage caused by war etc unless we have to provide cover under the Road Traffic Acts.
+The certificate identified Mr Holden as the policy holder and specified the use limitations as use for social, domestic and pleasure purposes.
+It also contained a certificate of the Chief Executive of the insurers in these terms: I hereby certify that the Policy to which this Certificate relates satisfies the requirements of the relevant law applicable in Great Britain and Northern Ireland, the Republic of Ireland, the Isle of Man, the Island of Guernsey, the Island of Jersey and the Island of Alderney.
+The motor insurance schedule specified among other things the sections of the booklet which applied to the Policy and the details of the car.
+The confirmation, which has no bearing on this appeal, set out in summary form details of the policy holder, the Policy, the car and method of payment of premium.
+The context of compulsory insurance
+i) Domestic provision: the Road Traffic Act 1988
+It has, since 1930, been a statutory requirement that a driver has third party liability insurance in respect of the use of his or her vehicle on the road and it is a criminal offence if one does not.
+The current statute is the Road Traffic Act 1988 (the RTA).
+Section 143 of the RTA provides that it is an offence to use a motor vehicle on a road or other public place unless there is in force in relation to the use of the vehicle by that person such a policy of insurance or such security in respect of third party risks as complies with Part VI of the RTA.
+Section 145 of the RTA, which like section 143 falls within Part VI, sets out the conditions which the policy of insurance must satisfy.
+It provides, so far as relevant: (1) In order to comply with the requirements of this Part of this Act, a policy of insurance must satisfy the following conditions. (3) Subject to subsection (4) below, the policy (a) must insure such person, persons or classes of persons as may be specified in the policy in respect of any liability which may be incurred by him or them in respect of the death of or bodily injury to any person or damage to property caused by, or arising out of, the use of the vehicle on a road or other public place in Great Britain (Emphasis added) At the relevant time, section 145(4)(b) provided that such a policy was not required to provide insurance in respect of damage to property of more than 1m.
+Section 145(3)(a) was amended by the Motor Vehicles (Compulsory Insurance) Regulations 2000 (SI 2000/726) to add the words or other public place which I have emphasised, in order to comply with the EU directives on motor insurance, which were later consolidated in the Directive which I describe below.
+Section 143 was amended in the same way.
+The amendments responded to the decision of the House of Lords in Clarke v General Accident Fire and Life Assurance Corpn plc and Cutter v Eagle Star Insurance Co Ltd [1998] 1 WLR 1647, which had held that a road did not include a car park or other public place.
+The current wording of section 145(3) is to that extent implementing the relevant EU legislation.
+ii) The EU Motor Insurance Directive
+Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 (the Directive) consolidates various earlier EU directives and ensures that civil liability arising out of the use of motor vehicles is covered by insurance.
+Recital (2) of the Directive states: Insurance against civil liability in respect of the use of motor vehicles (motor insurance) is of special importance for European citizens, whether they are policyholders or victims of an accident.
+It is also a major concern for insurance undertakings as it constitutes an important part of non life insurance business in the Community.
+Motor insurance also has an impact on the free movement of persons and vehicles.
+It should therefore be a key objective of Community action in the field of financial services to reinforce and consolidate the internal market in motor insurance.
+Article 3, so far as relevant, provides: Compulsory insurance of vehicles Each member state shall, subject to article 5, take all appropriate measures to ensure that civil liability in respect of the use of vehicles normally based in its territory is covered by insurance.
+The extent of the liability covered and the terms and conditions of the cover shall be determined on the basis of the measures referred to in the first paragraph.
+The insurance referred to in the first paragraph shall cover compulsorily both damage to property and personal injuries.
+Article 12(3) provides: The insurance referred to in article 3 shall cover personal injuries and damage to property suffered by pedestrians, cyclists and other non motorised users of roads who, as a consequence of an accident in which a motor vehicle is involved, are entitled to compensation in accordance with national civil law.
+The prior judgments
+In a judgment dated 19 February 2016 ([2016] EWHC 264 (QB); [2016] 4 WLR 38) which the Master of the Rolls correctly described as clear and careful, Judge Waksman QC, sitting as a Judge of the High Court (Queens Bench Division), held that UKI was entitled to the declaration which it sought.
+He interpreted the Policy as extending beyond roads and public places so that its cover extended to the location of the accident on private property, if the other requirements of the Policy were made out.
+But he concluded that those requirements were not made out because the accident had not arisen out of the use of the car.
+The undertaking of the repair of the car was not using it: it was not being operated but was immobile and partly off the ground so that it could be worked on (para 63).
+He also rejected Phoenixs argument on causation, that the fire arose out of Mr Holdens use of the car because he had been driving it before carrying out the repair or because he would be driving it after the repair.
+He held (para 66): The fire was caused by and arose out of the allegedly negligent repair of the car by the use of grinders and welders without taking any precautions with regard to flammable materials in the car itself.
+The Court of Appeal (the Master of the Rolls, and Beatson and Henderson LJJ) allowed Phoenixs appeal ([2017] EWCA Civ 259; [2017] QB 1357).
+The Court, recognizing that the wording of clause 1a of the policy booklet was inadequate and that the policy booklet had to be read together with the certificate, held that the Policy should be read to cover the requirements of section 145(3) of the RTA, as the certificate states.
+The Policy did not have the geographical limitations of the statutory provision nor was the sum insured restricted to 1m.
+Section 145(3) extended the cover of clause 1a without imposing its statutory geographical limitations and did not require the owner to be in the car at the time of the accident as the express terms of clause 1a provided.
+The clause as so extended covered repairs which were commonplace for drivers.
+The court accordingly construed the opening words of clause 1a to mean: We will cover you for your legal responsibility if there is an accident involving your vehicle (emphasis added).
+This entailed substituting there is for you have and replacing the preposition in in the express terms of the clause with the present participle involving.
+As a secondary argument, the Master of the Rolls held that the repairs amounted to the use of the car under section 145(3).
+He stated that that interpretation was consistent with the objective of the Directive in the light of the judgment of the Court of Justice of the European Union (CJEU) in Vnuk v Zavarovalnica Triglav dd (Case C 162/13) [2016] RTR 10, which was to protect victims of accidents caused by vehicles.
+He held that a purposive interpretation of section 145(3)(a) to cover use of a car consistent with its normal function was consistent with English authorities which held that there may be use of a car when it is parked or immobilised.
+The Master of the Rolls set out the following summary in para 68 of his judgment: The following propositions as to the meaning of use of the vehicle in section 145(3)(a) of the RTA can be derived from the Directive, the CJEU jurisprudence and the English authorities. (1) Use is not confined to the actual operation of the car in the sense of being driven. (2) There may be use of a car when it is parked or even immobilised and incapable of being driven in the immediate future. (3) Use of a vehicle includes anything which is consistent with the normal function of the vehicle. (4) Damage or injury may arise out of the use of the car if it is consequential, rather than immediate or proximate, provided that it is, in a relevant causal sense, a contributing factor.
+The Master of the Rolls therefore concluded that Judge Waksman had made an error of principle in holding that the repair of a car is not using it for the purposes of section 145(3)(a) of the RTA.
+Henderson LJ agreed with this judgment and added that he found that Commonwealth authorities from Australia and Canada, some of which take a broader approach to the interpretation of motor insurance policies, were also of assistance.
+Beatson LJ agreed with both judgments.
+UKI appeals to this court.
+Discussion
+Having regard to the statutory requirements and the terms of the certificate, the Policy must be construed so that the third party cover meets the requirements of the RTA.
+The parties are agreed on that and they are plainly correct, because this can be done in this case without resort to rectification.
+So far as relevant to this appeal, the RTA requires Mr Holden to be insured to cover any liability in respect of damage to property caused by, or arising out of, the use of the vehicle on a road or other public place .
+The principal question in this appeal is whether the Court of Appeal went beyond the bounds of what is required to be read into the Policy to achieve this end in holding that clause 1a of section A of the policy booklet should be read to state: We will cover you for your legal responsibility if there is an accident involving your vehicle.
+In support of the view that the Court of Appeal was in error, UKI advances an argument for the first time in this court.
+It submits that there is no need to read any term into clause 1a in order to include the RTA cover because the Policy provides cover in two strands.
+First, there is the provision of clause 1a, whose words should be given their ordinary meaning so as to cover accidents occurring when the driver is in the vehicle wherever it is located, and, secondly and separately, there is the promise in the certificate that the Policy satisfies the requirements of the relevant law in the United Kingdom, which for present purposes is the RTA.
+Phoenix challenges that assertion, submitting that the Policy follows a standard structure of insurance policies, with insuring clauses which define the cover, followed by exclusions and then by conditions.
+The reader therefore looks to the insuring clause to determine the scope of cover before examining the extent of the exclusions and the conditions of cover.
+The certificate, it is submitted, is simply a declaration of compliance and does not operate as an additional insuring clause.
+Phoenix submits that Judge Waksman and the Court of Appeal were correct in focusing on the correct construction of clause 1a.
+It is necessary therefore, first, to examine UKIs two strands argument and, secondly, if it is necessary to read words into clause 1a, to address what they are.
+The two strands submission
+The two strands approach can find some support in the Policys opening statement: Your policy is made up of: the Motor Proposal Confirmation; this Policy Booklet; the Certificate of Motor Insurance; and the Schedule.
+You must read all these documents as a whole.
+The documents must be read as a whole.
+But what is the role of each document? It is clear from the certificate which I have quoted in para 9 above that UKI intended the Policy to meet the terms of the RTA.
+But is the needed cover provided by the certificate or by a corrective interpretation of the insuring clause?
+I am not persuaded by the two strands approach which UKI advocates.
+The certificate is relevant to and forms part of the Policy because it alone states the limitations as to use which the Policy imposes (para 9 above).
+Thus it is readily understandable why UKI requires the policy holder to read the four documents as a whole.
+But the wording of the Chief Executives certificate distinguishes between the Certificate of Motor Insurance and the Policy when it speaks of the Policy to which this Certificate relates.
+It certifies the legal effect of the Policy without purporting to provide additional cover.
+My concern is also that the two strands approach does not fit in easily with the provisions of the RTA which draw a distinction between an insurance policy and an insurance certificate.
+The certificate is the product of section 147 of the RTA and the Motor Vehicles (Third Party Risks) Regulations 1972 (SI 1972/1217) as amended (the 1972 Regulations).
+Section 147 provides that an insurer issuing a motor insurance policy must deliver to the insured a certificate of insurance in the form prescribed by the 1972 Regulations.
+The certificate serves as evidence of the existence of the policy, because, for example, a driver may be required by a police constable to produce the certificate (section 165) and a person against whom a claim is made must give the claimant such particulars of the policy as are specified in the certificate (section 154).
+The RTA defines policy of insurance in section 161 in a non exclusive way, stating that it includes a covering note.
+But the RTA also speaks of policy as something separate from the certificate of motor insurance.
+For example, in section 147 the insurer issuing a policy must also deliver the certificate.
+In section 144A, which creates the offence of keeping a vehicle which does not meet the insurance requirements, subsection (3) defines the first condition of meeting the insurance requirements in these terms: The first condition is that the policy or security, or the certificate of insurance or security which relates to it, identifies the vehicle by its registration mark as a vehicle which is covered by the policy or security.
+The RTAs treatment of an insurance policy as a distinct concept from a certificate of insurance points against the two strands approach.
+Further, if the certificate, although distinct, were interpreted as a separate contractual basis for insurance cover, questions would arise as to whether an insurer may avoid liability for a risk covered only by a certificate of insurance in circumstances in which it is barred from so doing in relation to cover under a policy.
+Section 151 imposes a duty on insurers to satisfy judgments obtained against persons insured against third party risks up to the maximum at the relevant time of 1m (now 1.2m).
+The section applies to judgments relating to a liability which section 145 requires to be covered by insurance and it is a liability covered by the terms of the policy (subsection (2)(a)).
+In deciding whether the terms of the policy cover the liability the section disregards any requirement in the policy that the driver have a valid driving licence (section 151(3)).
+The obligation to pay exists even if the insurer was entitled to avoid or cancel the policy or had avoided or cancelled it (section 151(5)).
+In short, section 151 focuses on the liability covered by the terms of the policy and excludes certain terms of the policy and the avoidance or cancellation of the policy.
+It does not envisage liability covered by the certificate or the avoidance or cancellation of the certificate.
+I am therefore not prepared to adopt the two strands approach.
+But the outcome of the appeal does not depend upon the two strands submission because I am persuaded that the Court of Appeal erred in interpreting clause 1a to include the words there is an accident involving your vehicle in place of the phrase you have an accident in your vehicle.
+Reading terms into clause 1a
+Three questions arise in relation to the arguments about the interpretation and application of clause 1a.
+First, one must ask what is the extent of the insurance cover which section 145(3)(a) requires.
+Secondly, one must ask what words should be read into the clause 1a.
+And the third question is whether Mr Holdens accident falls within the wording of the clause as so interpreted.
+i) What section 145(3)(a) of the RTA requires
+The first question requires the court to interpret the statutory requirement that the damage to property has been caused by, or arising out of, the use of the vehicle on a road or other public place.
+This involves the interpretation of the noun use and also of the causal phrase caused by, or arising out of.
+Both predated the various EU Motor Insurance Directives and were the subject of English and Welsh judicial decisions.
+In English case law use has been interpreted to extend beyond driving a vehicle so that an owner had to have third party insurance if he had the use of the vehicle on a road.
+Thus, a person who left his broken down vehicle on a public road, without a battery and without any petrol in its tank, was convicted of unlawfully using the car without there being in force a third party insurance under section 35(1) of the Road Traffic Act 1930, which is the precursor of section 143(1) of the RTA: Elliott v Grey [1960] 1 QB 367, 372 per Lord Parker CJ.
+Similarly, in Pumbien v Vines [1996] RTR 37, a motorist was convicted under section 143(1) of the RTA when he parked his vehicle on a public road for over seven months during which time the rear brakes seized, the tyres deflated and the gearbox ceased to contain any oil.
+The statutory concept of use in this context is that the owner has an element of control, management or operation of the vehicle while it is on the road: Brown v Roberts [1965] 1 QB 1, 15 per Megaw J.
+The good sense of having a broad interpretation of use in the requirement for compulsory third party insurance is clear as leaving an immobilised car on a public road may create a hazard for other road users, for example if the vehicle was left close to a blind corner.
+Similar considerations apply to protect members of the public in other places to which the public have access, such as car parks.
+The mischief is that an uninsured owner may not be able to compensate members of the public, who can be expected to be on a road or at a public place and who suffer personal injury or damage to property as a result of the presence of the vehicle in that place.
+It is necessary also to consider the jurisprudence of the CJEU on the Directive as section 145(3)(a) should be interpreted in the light of the wording and purpose of the Directive so long as that is not contra legem: see for example, Pfeiffer v Deutsches Rotes Kreuz (Cases C 397/01 to C 430/01) [2005] 1 CMLR 44, paras 108 114, and Dominguez v Centre Informatique de Centre Ouest Atlantique (Case C 282/10) [2012] 2 CMLR 14, paras 24 and 25.
+Both Judge Waksman and the Court of Appeal discussed the CJEUs interpretation of the Directive in their reasoning.
+Judge Waksman concluded that section 145(3)(a) was not compatible with the Directive; the Court of Appeal gave what I see as a strained interpretation to use to achieve such compatibility.
+Recent case law of the CJEU has demonstrated a need for Parliament to reconsider the wording of section 145(3)(a) of the RTA to comply with the Directive.
+As the courts below recognized, in Vnuk the CJEU held that the objective of the First to Third Directives was to protect injured parties to an accident caused by a vehicle in the course of its use, if that use is consistent with the normal function of that vehicle (para 56).
+As a result, the CJEU ruled that the concept of use of vehicles in article 3(1) of the First Directive (which is materially in the same terms as article 3 of the current Directive) covers any use of a vehicle that is consistent with the normal function of that vehicle (para 59 and the dispositif).
+In that case, the accident occurred when a tractor was reversing in a farmyard in order to place a trailer, to which it was attached, in a barn and the trailer struck a ladder on which the claimant was standing, causing him to fall.
+The CJEU, rejecting the contention that the article covered only use of a vehicle on a public road, held that article 3(1) of the First Directive could apply to the manoeuvre of the tractor in the farmyard.
+Since the judgment of the Court of Appeal was handed down in this case, the Grand Chamber of the CJEU has revisited the meaning of use of vehicles in article 3(1) of the First Directive in Rodrigues de Andrade v Salvador (Case C 514/16), 28 November 2017.
+The accident in that case occurred when an agricultural tractor, which had a drum with a herbicide spraying device mounted on its back, was stationary but its engine was running to drive the spray pump for the herbicide.
+A landslip, which was caused by among other things the vibrations of the tractor engine and the spray, carried the tractor away, causing it to fall down terraces and crush a worker who was working on the vines below.
+The Grand Chamber held that the concept of use of vehicles covers any use of a vehicle as a means of transport (para 38).
+The fact that a vehicle was stationary or that its engine was not running at the time of the accident did not preclude the use falling within the scope of its function as a means of transport (para 39).
+But the concept of use of vehicles did not cover a circumstance in which the tractors principal function, at the time of the accident, was not to serve as a means of transport but to generate, as a machine for carrying out work, the motive power necessary to drive the pump of a herbicide sprayer (para 42 and the dispositif).
+The judgments in Vnuk and Andrade were confirmed in a judgment of the Sixth Chamber of the CJEU, which concerned article 3 of the Directive, in Torreiro v AIG Europe Ltd (Case C 334/16) 20 December 2017, [2018] Lloyds Rep IR 418, which affirmed that in EU law the location of the use of the vehicle under the Directive is not confined to a road or other public place as had been understood in prior English jurisprudence.
+I am not persuaded that section 145(3)(a) can be read down to comply with the jurisprudence of the CJEU.
+In R (RoadPeace Ltd) v Secretary of State for Transport [2017] EWHC 2725 (Admin), [2018] 1 WLR 1293, Ouseley J (paras 73 and 99) recorded and accepted the view of the Secretary of State for Transport and the Motor Insurers Bureau that section 145(3)(a) could not be read down and that there required to be amending legislation.
+In Lewis v Tindale [2018] EWHC 2376 (QB) Soole J reached the same conclusion (paras 42 58) because reading down would go against the grain and thrust of the legislation, because it raised policy ramifications which were not within the institutional competence of the courts, and because it would necessarily impose retrospective criminal liability under section 143.
+I agree.
+It is important to note that EU law does not require a national court, hearing a dispute between private persons, to disapply the provisions of national law and the terms of an insurance policy, which follows national law, when it is unable to interpret national law in a manner that is compatible with a provision of a directive which is capable of producing direct effect: see judgment of the Grand Chamber of the CJEU in Smith v Meade (Case C 122/17) 7 August 2018 (paras 49, 55, 57 and the dispositif).
+In that case, the requirement for third party motor insurance cover in Irish road traffic legislation did not comply with the Directive.
+A motor insurance policy, which was a contract between private persons, reflected the Irish legislation.
+The CJEU held that the terms of the insurance policy were not to be disapplied, notwithstanding the failure to provide the cover which the Directive required; the person disadvantaged by this failure could instead seek compensation from the member state (para 56).
+On this basis, it is the cover required by the RTA, and not the extended cover which the CJEU jurisprudence now requires, which is to be read into the Policy.
+The relevant use therefore is use on a road or other public place.
+The matter does not stop with the interpretation of the words use of the vehicle.
+It is also necessary to consider the causal phrase caused by, or arising out of the use of the vehicle on a road or other public place.
+The addition of the words arising out of after caused makes it clear that there can be a causal link between use of a vehicle on a road and damage resulting from that use which occurs elsewhere.
+In Romford Ice and Cold Storage Co Ltd v Lister [1956] 2 QB 180, a case which concerned the interpretation of identical words in section 36(1) of the Road Traffic Act 1930, the majority of the Court of Appeal (Birkett and Romer LJJ) held that an accident which occurred in the yard of a slaughterhouse did not arise out of use on the road.
+Romer LJ (pp 211 212) opined that to hold that the accident arose out of use on a road would be stretching the language of the section beyond permissible limits.
+He gave the following example to illustrate his understanding of the meaning of the statutory words: An accident is caused by the use of a vehicle on a road if it runs over a pedestrian at a zebra crossing; an accident arises out of the use of a vehicle on a road if it skids off the road and injures a pedestrian who is walking on the pavement.
+Birkett LJ expressed a similar view (pp 204 205) in rejecting the idea that the accident arose out of the use of the lorry on the road because the lorry had to be driven on the road to get to the yard.
+Denning LJ took a different view, holding that because the lorry was engaged in operations incidental or ancillary to a journey on the road, the accident arose out of the use of the vehicle on the road.
+I agree with the majority in Romford in their interpretation of the relevant statutory words.
+Their interpretation was followed in the unanimous judgment of the Court of Appeal in Inman v Kenny [2001] EWCA Civ 35; [2001] PIQR P18.
+Were an accident similar to that in Romford to occur once the RTA has been amended to comply with the CJEU jurisprudence in Vnuk and Andrade, the result of that case would probably be different.
+But that does not affect the meaning of the words caused by, or arising out of the use of the vehicle.
+There must be a reasonable limit to the length of the relevant causal chain.
+In Malcolm v Dickson 1951 SC 542, a case about remoteness of damage in a negligence claim, Lord Birnam stated (p 544): It is of course logically possible, as every schoolboy knows, to trace the loss of a battle, or even of a kingdom, to the absence of a nail in a horses shoe.
+But strict logic does not appear to me to be a safe guide in the decision of questions such as this.
+I agree.
+Mr Eklund QC, who appeared for UKI, submitted that Dunthorne v Bentley [1999] Lloyds Rep 560 was wrongly decided.
+I would not so hold.
+The case did not turn on a point of law but on the application of the law to a particular set of facts.
+The Court of Appeal held in that case that the trial judge was entitled to conclude that Mrs Bentley had crossed the road and so caused the accident while she was seeking help from a colleague to continue her journey, shortly after she had run out of petrol and had parked her car at the side of the road.
+The judge was entitled to conclude that the accident had arisen out of her use of the car on the road.
+Mr Dunthornes claim was close to the line, as Hutchison LJ recognized, but it is not apparent to me that the outcome of that borderline case was wrong, having regard to the close connection in time, place and circumstance between the use of the car on the road and the accident.
+In summary, section 145(3) of the RTA must be interpreted as mandating third party motor insurance against liability in respect of death or bodily injury of a person or damage to property which is caused by or arises out of the use of the vehicle on a road or other public place.
+The relevant use occurs where a person uses or has the use of a vehicle on a road or public place, including where he or she parks an immobilised vehicle in such a place (as the English case law requires), and the relevant damage has to have arisen out of that use.
+ii) What term should be read into clause 1a
+In Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38; [2009] AC 1101, the House of Lords construed a formal commercial contract to cure a linguistic mistake.
+The House, in the leading speech which Lord Hoffmann delivered, stated that where the context and background of a contract drove the court to the conclusion that something must have gone wrong with the language that the parties had used, the court did not have to attribute to the parties an intention which a reasonable person would not have understood them to have had.
+He emphasised that it required a strong case to persuade a court that something must have gone wrong with the language (paras 14 15).
+For the court to adopt a corrective construction, it should be clear that something has gone wrong with the language and it should be clear what a reasonable person would have understood the parties to have meant. (para 25)
+In this case, there is an apparent contradiction between the terms of clause 1a, if those words are given their ordinary meaning, and the promise in the certificate (para 9 above) that the Policy satisfies the requirements of UK law, including the RTA.
+If, as I have concluded, the certificate is not effective to create the needed cover, there can be no doubt that it is necessary to interpret the insuring clause in the Policy so that it meets the requirements of section 145(3)(a) of the RTA by correcting the mistake in clause 1a.
+This is one of those rare cases where the mistake is clear as is the intended meaning, so that a party to the agreement does not need to apply for rectification of the Policy.
+The policy booklet is written in plain language for the benefit of the policy holder and lacks the precision which one might expect from a detailed commercial contract.
+For example, the statement in clause 1a that UKI will give cover for the insureds liability if you have an accident in your vehicle if read strictly would not cover an accident caused by the insured opening his car door and stepping out of the car.
+Yet clause 2, which appears to address the Brown judgment to which I referred in para 34 above, provides such cover for passengers getting out of the car.
+It was not disputed that clause 1a should be construed as covering the insured driver stepping out of his vehicle.
+Nor is it disputed that the clause must be construed so that it meets the requirements of the RTA.
+But the alteration of the clause which the Court of Appeal favoured was much more radical.
+In identifying the needed correction, I derive no assistance from the fact that the Policy gives extensive first party cover and cover overseas or from the fact that the maximum sum available under the Policy for third party cover far exceeds the statutory minimum.
+The correction which is needed is to enable the cover to extend beyond what is expressly provided for to that which the RTA requires.
+If, as is the case, the express terms of the Policy in some respects exceed what the RTA requires, those terms must be given effect.
+Construction of clause 1a to expand its cover to meet the requirements of the RTA cannot cut back that which is expressly conferred.
+But that which is to be added to correct the omission is that which is needed to make the cover comply with the RTA and no more.
+In my view the Court of Appeal erred in not adopting this approach.
+Its formulation did not confine the Policys cover to the express terms of clause 1a and such additions as were needed to meet requirements of RTA.
+Instead, the formulation we will cover you if there is an accident involving your vehicle expands the cover significantly beyond both the express terms of the clause and the requirements of the RTA by removing the statutory causal link between the use of the vehicle on a road or other public place and the accident.
+Indeed, the interpretation which the Court of Appeal favours appears to go beyond that which EU law currently requires.
+Dealing briefly with other arguments which Phoenix has raised, I see no basis for the operation against UKI of the contra proferentem rule in this context.
+The necessity for corrective construction arises from the fact that the terms to meet the legal requirements, which the Chief Executives certificate vouched, have not been expressed in the insuring clause.
+There is no doubt as to what those terms are as the statutory provision provides them.
+Nor do I derive any assistance by reference to the Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083) (the 1999 Regulations).
+The requirement in regulation 7 of the 1999 Regulations (now section 69 of the Consumer Rights Act 2015) that the interpretation most favourable to the consumer is to prevail where there is doubt about the meaning of a written term of a contract applies, for example, in the circumstances which I have discussed in para 48 above.
+But I am not persuaded that it can apply where the court, having recognized a mistake in the language used, is applying a corrective construction by reading into the clause words, which have not been expressed, to correct the mistake.
+It is important to recall that a corrective interpretation is available only if it is clear what a reasonable person would have understood the parties to have meant (para 46 above).
+Nor can the fact that UKI has amended the terms of the Policy to extend its cover since the events which gave rise to the claim in this case assist the process of construction of the terms of the Policy.
+In my view the appropriate corrective construction of clause 1a to give effect to the requirements of the RTA is to add the words or if there is an accident caused by or arising out of your use of your vehicle on a road or other public place.
+The clause would therefore read: We will cover you for your legal responsibility if you have an accident in your vehicle or if there is an accident caused by or arising out of your use of your vehicle on a road or other public place and Clause 2 of the Policy, which I quote in para 7 above, extends this cover to the other people which it specifies, including a person insured by the policy who is driving with the permission of the insured. iii) Does Mr Holdens accident fall within clause 1a as so interpreted?
+In my view, neither English domestic case law nor the jurisprudence of the CJEU supports the view that the carrying out of significant repairs to a vehicle on private property entails the use of the vehicle.
+The English case law which interprets use in the RTA as having the use of makes good sense in the context of vehicles which have been left on a road or in a public place, where members of the public are likely to encounter them, but less sense if applied without qualification to vehicles located on private property.
+In ordinary language one would not speak of a person who is conducting substantial repairs to a stationary vehicle as using that vehicle, but the presence of a vehicle on a road or other public place while the owner was carrying out such repairs would, in my view, fall within the mischief which section 145(3)(a) addresses.
+EU law now requires the extension of compulsory third party insurance to vehicles on private property to cover use of the vehicles as a means of transport, a concept which can include parked vehicles.
+I am not persuaded that a vehicle which is on its side being repaired on private property, such as a garage, is being used as a means of transport as the CJEU jurisprudence requires.
+But it is not necessary to decide that point because, as the CJEU has held in Smith v Meade (para 55 above) national legislation governs and the repair did not take place on a road or other public place.
+Turning to the statutory phrase, arising out of the use of the vehicle on the road, Phoenixs argument is that Mr Holdens repairs met the causal requirement either because the disrepair of the car was the result of its use or because the repair was a precursor to his getting the car back on the road as a means of transport.
+The repairs, Phoenix submitted, were ancillary and incidental to the use of the car and thus the damage to its property and that of its neighbour arose out of the use of the car.
+I do not accept this submission because the causal connection is too remote: viz my discussion of the Romford case in paras 42 and 43 above.
+It is likely that the prior use of the car as a means of transport was either a but for cause or (for example, if, without washing the underside after use on a road, the car was parked on a private driveway or in a garage for a prolonged period) a contributory cause of the disrepair of the vehicle which necessitated the repairs.
+I would accept that the repairs may properly be said to have arisen out of the use of the car as they were a response to the disrepair of that vehicle.
+But it does not follow that the property damage which is the subject of Phoenixs claim was caused by or arose out of the use of the vehicle as the RTA requires.
+In agreement with Judge Waksman, I consider it to be an artificial analysis to say that the property damage, which Phoenix and its neighbour suffered, was caused by or arose out of the use of the vehicle.
+As he stated (para 66 of his judgment), [t]he fire was caused by and arose out of the allegedly negligent repair of the car by the use of grinders and welders without taking any precautions with regard to flammable materials in the car itself.
+It was Mr Holdens alleged negligence in carrying out the repairs and not the prior use of the car as a means of transport which caused the relevant damage.
+In my view, Phoenixs claim clearly falls on the wrong side of the line.
+I have not overlooked the Commonwealth cases to which this court and the courts below were referred.
+Some, like Elias v Insurance Corpn of British Columbia (1992) 95 DLR (4th) 303 and Pilliteri v Priore (1997) 145 DLR (4th) 531, in which repair was treated as a use of a vehicle, concerned differently worded legislation which referred to damage arising out of the ownership, use or operation of a vehicle.
+The Australian cases, which Judge Waksman analysed in paras 52 57 of his judgment, appear to turn on their particular facts and two of the cases draw a distinction between repairs where the car is being prepared for use on the one hand and, on the other, circumstances in which the car is driven or some part of its mechanism is used in the course of repairs.
+Like the Master of the Rolls, I do not find the Commonwealth cases helpful.
+Because Mr Holden was not in his car when the accident occurred (as the express terms of clause 1a require) and because, for the reasons which I have given, the RTA does not require third party insurance cover in the circumstances of the accident in this case (with the result that the corrective interpretation does not assist Phoenix), UKI is entitled to the declaration which Judge Waksman gave in his order of 8 April 2016.
+Conclusion
+I would allow the appeal.
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+This is an interim judgment dealing with certain threshold issues on this appeal.
+It is final as to the issues covered, but interim in the sense that other issues will have to be decided before the appeal can be finally determined.
+The court regrets the delay in reaching a final disposal of this protracted and deeply troubling case.
+However, as will be explained, it has become apparent that some critical and difficult issues had not been clearly identified in the agreed statement of facts and issues, nor adequately covered by the written or oral submissions.
+In fairness to the parties, and to enable it to reach a fully informed conclusion, the court sees no alternative to inviting further submissions on the matters to be identified at the end of this judgment.
+It hopes that by giving its decision on the issues covered by this judgment, it will clear the way for more focussed discussion of the remaining points, and in particular on the interaction of international and domestic law in the context of the present judicial review proceedings against the Secretary of State.
+The Main Issue
+The respondents are six refugees from various countries in North Africa and the Middle East.
+In October 1998, they boarded a ship in the Lebanon which was bound for Italy but which foundered off the coast of Cyprus.
+On 8 October, 75 passengers including the respondents were airlifted to safety by RAF helicopters and brought to Akrotiri in south Cyprus.
+It will be necessary to give a fuller account of the status of Akrotiri below, but for present purposes it is enough to say that Akrotiri in the south of the island, and Dhekelia on the eastern side of the island, are Sovereign Base Areas (SBAs) retained under United Kingdom sovereignty for the purpose of accommodating military bases, when the former colony of Cyprus was granted independence in 1960.
+The respondents have lived in highly unsatisfactory conditions in disused service accommodation in Richmond village in the Dhekelia (or eastern) SBA since shortly after their arrival in 1998.
+The question at issue in this appeal is whether the respondents are entitled, or should be permitted, to be resettled in the United Kingdom.
+It is clear, and not seriously disputed, that the respondents have no right to entry into the United Kingdom under the Immigration Rules.
+The Secretary of State has a discretion to admit them outside the Rules, but his policy is not to exercise this discretion in favour of persons such as the respondents who have no existing connection with the United Kingdom.
+The basis of the respondents case is that in the circumstances of the present case they are entitled to entry into the United Kingdom by virtue of their status as refugees protected by the United Nations Convention Relating to the Status of Refugees (1951), as modified by the Protocol Relating to the Status of Refugees (1967), or that in the exceptional circumstances of the case the Secretary of State should exercise his discretion to admit them.
+The Refugee Convention
+As originally drawn, the Refugee Convention applied only to persons who became refugees as a result of events occurring before 1951, ie for the most part those displaced by the persecutions of the Axis powers and by military operations during and in the aftermath of the Second World War.
+The effect of the 1967 Protocol was to apply the principal provisions of the 1951 Convention to all refugees, irrespective of when the events occurred which caused them to leave their home countries.
+The United Kingdom was an original signatory of the Refugee Convention and ratified it on 11 March 1954.
+It acceded to the Protocol on 4 September 1968.
+The Convention (as amended) confers a number of rights on persons who qualify as refugees in any territory of refuge in which they find themselves.
+These rights include the right to engage in remunerated work, the right to public services such as housing, public education and social security, generally on the same basis as other aliens lawfully present there, and the right not to be expelled save on grounds of national security or public order.
+It is not disputed that the respondents are refugees for these purposes.
+Between July 1999 and March 2000, all of them were declared by the Chief Control Officer of the SBAs to be entitled to refugee status under the 1951 Convention and the 1967 Protocol.
+Neither party suggested that the Convention has been incorporated generally into the law of the United Kingdom, and plainly it has not been.
+The position was stated by Lord Bingham of Cornhill (with whom Lord Carswell agreed) in R v Asfaw (United Nations High Comr for Refugees intervening) [2008] AC 1061, para 29: The appellant sought to address this disparity by submitting that the Convention had been incorporated into our domestic law.
+Reliance was placed on observations of Lord Keith of Kinkel in R v Secretary of State for the Home Department, Ex p Sivakumaran [1988] AC 958, 990G; Lord Steyn in R (European Roma Rights Centre) v Immigration Officer at Prague Airport (United Nations High Comr for Refugees Intervening) [2005] 2 AC 1, paras 40 42; section 2 of the Asylum and Immigration Appeals Act 1993; and rule 328 of Statement of Changes in Immigration Rules (1994) (HC 395).
+It is plain from these authorities that the British regime for handling applications for asylum has been closely assimilated to the Convention model.
+But it is also plain (as I think) that the Convention as a whole has never been formally incorporated or given effect in domestic law Lord Hope of Craighead expressed the same view at para 69.
+Lord Rodger of Earlsferry and Lord Mance dissented, but not on this point.
+It follows that the Convention as such confers no rights and imposes no duties as a matter of the domestic law of the United Kingdom.
+The Convention is however given limited statutory effect in the domestic law of the United Kingdom for certain specific purposes, of which only one is relevant to the present appeal.
+Section 2 of the Asylum and Immigration Appeals Act 1993 provides that nothing in the immigration rules shall lay down any practice which would be contrary to the [Refugee] Convention.
+It is therefore common ground that any decision regarding the entry of the respondents into the United Kingdom must be consistent with the Convention.
+Furthermore, as Foskett J recognised in the High Court ([2016] 1 WLR 4613, para 322ff), a failure by the Secretary of State correctly to apply the Convention may have consequences in domestic public law, as under the so called Launder principle (following R v Secretary of State for the Home Department, Ex p Launder [1997] 1 WLR 839, para 325 per Lord Hope; see also R (Corner House Research) v Director of the Serious Fraud Office [2009] 1 AC 756).
+Cyprus and the Sovereign Base Areas
+Britain occupied Cyprus between 1878 and 1960.
+As with Britains other Mediterranean colonies, Gibraltar and Malta, the value of Cyprus to Britain was always strategic and military, not economic.
+The island sits across the main sea routes to the Suez Canal and the Levant.
+It had been governed for three centuries as part of the Ottoman Empire.
+After the defeat of Turkey in the Russo Turkish war of 1877 8, Britain entered into a military alliance with Turkey under which she undertook to defend Turkey by force of arms against any future Russian attack.
+In return, Turkey, while retaining sovereignty over the island, ceded it to be occupied and administered by Britain in order to enable England to make necessary provision for executing her engagement: article 1 of the Cyprus Convention, 4 June 1878.
+Under an Order in Council dated 1 October 1878, administration of the island was vested in a High Commissioner, whose functions were to be exercised ex officio by the Commander in Chief of the British forces stationed there.
+These arrangements subsisted until 1914, when Turkey entered the First World War on the German side, and the Anglo Turkish Convention lapsed.
+Cyprus was thereupon annexed to the British Empire by Order in Council: Cyprus (Annexation) Order 1914 SR&O 1914/1629.
+The annexation was recognised by Turkey after the war by the treaty of Lausanne (1923).
+The island played a modest part in British military operations in the middle east in both world wars, but its strategic significance has increased since then.
+The SBAs are currently the only significant British strategic assets in the eastern Mediterranean.
+The Refugee Convention contains a colonial clause in the following terms: Article 40 TERRITORIAL APPLICATION CLAUSE 1.
+Any State may, at the time of signature, ratification or accession, declare that this Convention shall extend to all or any of the territories for the international relations of which it is responsible.
+Such a declaration shall take effect when the Convention enters into force for the State concerned. 2.
+At any time thereafter any such extension shall be made by notification addressed to the Secretary General of the United Nations and shall take effect as from the ninetieth day after the day of receipt by the Secretary General of the United Nations of this notification, or as from the date of entry into force of the Convention for the State concerned, whichever is the later. 3.
+With respect to those territories to which this Convention is not extended at the time of signature, ratification or accession, each State concerned shall consider the possibility of taking the necessary steps in order to extend the application of this Convention to such territories, subject, where necessary for constitutional reasons, to the consent of the Governments of such territories.
+On 24 October 1956 the United Kingdom notified the Secretary General under article 40(2) that, subject to certain reservations, the Convention would be extended to 16 territories for whose international relations it was responsible, including Cyprus.
+It is common ground that the effect was to apply the Convention, as a matter of international law, to the whole island, including those parts of it which later became the SBAs.
+Cyprus became independent in 1960 as part of an international settlement between the United Kingdom, Turkey and Greece.
+Under these arrangements, it became an independent republic, but there were excluded from its territory the two SBAs, together comprising 98 square miles (about 3% of the surface of the island), which were retained under United Kingdom sovereignty.
+The SBAs comprise a number of important military facilities including, in the western SBA, a major RAF base at Akrotiri, and in the eastern SBA an army base at Dhekelia and a signals station at Ayios Nicolaos.
+But their geographical area extends well beyond the bases themselves and they support a substantial civilian population.
+The population of the SBAs currently comprises a transient population of British military personnel and civilian staff employed on defence related work, who have access to health, educational, recreational and other facilities provided by the Ministry of Defence; and about 10,000 permanent residents, almost all of them Cypriot nationals, who occupy the land outside the bases themselves, pay taxes to the Republic of Cyprus, vote in its elections and are entitled to services from the Republic in the same way as if they resided in its territory.
+Legally, these changes were achieved by a number of instruments: i) Section 1 of the Cyprus Act, enacted on 29 July 1960, provided that on a date to be appointed by Order in Council, there should be established in the Island of Cyprus an independent sovereign republic.
+Section 2 provided that its territory should comprise the entirety of the Island of Cyprus with the exception of [the Sovereign Base Areas] defined by designated maps with exact boundaries to be fixed by a Boundary Commission.
+An Order in Council subsequently fixed the appointed day as 16 August 1960: Republic of Cyprus Order (SI 1960/1368). ii) On 16 August 1960, a treaty was signed between the United Kingdom, Greece, Turkey and the new Republic of Cyprus.
+Article 1 of the treaty recognised the territory of the Republic as comprising the island with the exception of the SBAs. iii) On the same date, there was an exchange of notes between the United Kingdom and the Republic of Cyprus, which is annexed to the treaty and known as Appendix O.
+The British note transmitted a declaration by the United Kingdom government concerning the administration of the SBAs, and stated the United Kingdoms determination to create a continuous and lasting system of administration in the Sovereign Base Areas founded on close co operation between the authorities of those areas and the authorities of the Republic of Cyprus.
+Article 1 of the declaration declared that the main object to be achieved was the effective use of the SBAs as military bases, full co operation with the Republic of Cyprus and protection of the interests of those residing or working in the SBAs.
+By article 2, the United Kingdom government declared its intention to observe certain limits on the non military use of the SBAs.
+In particular, its intention was: (I) Not to develop the Sovereign Base Areas for other than military purposes. (II) Not to set up and administer colonies. (VI) Not to allow new settlement of people in the Sovereign Base Areas other than for temporary purposes.
+The Cypriot note took due note of the above.
+On the same date (16 August 1960), the Sovereign Base Areas of Akrotiri and Dhekelia Order in Council 1960 (SI 1960/1369) came into force.
+It made arrangements for the administration of the SBAs by an Administrator, who was to be a serving officer of HM Forces and is in practice the Commander of British Forces Cyprus.
+The Administrator was to have extensive executive and legislative powers.
+Subject to any repeal or modification by the Administrator, article 5 provided that any existing law should continue to have effect in the SBAs.
+For this purpose, an existing law meant any law enacted by any authority established for the Island of Cyprus, any Instrument made under such a law, and any rule of law, which is in force in the Sovereign Base Areas or any part thereof immediately before the date of commencement of this Order.
+Refugees in Cyprus
+In 1963 the Republic of Cyprus notified the Secretary General that it had succeeded to the Convention.
+In 1968 it acceded to the Protocol.
+No notification has ever been made by the United Kingdom specifically in relation to the SBAs.
+The Secretary of States position in these proceedings has been that the Convention does not apply in the SBAs.
+But the declared policy of the United Kingdom is that even in those dependent territories where the Refugee Convention does not apply, as in Hong Kong before 1997, it will nevertheless apply the spirit of the Convention to genuine refugees.
+The result is a practical, although not (it is said) a legal consistency of approach between the Republic of Cyprus and the administration of the SBAs.
+Refugees became a significant issue in Cyprus and the SBAs as a result of disturbances in the Middle East in the 1990s.
+They began to appear in substantial numbers in the Republic and in more limited numbers in the SBAs.
+It appears to be common ground, but is in any event clear, that the facilities currently available within the SBAs do not enable refugees to be supported there.
+There are few if any prospects of employment, no educational, health or other publicly provided facilities to which refugees have access, and limited and unsatisfactory housing provision.
+As a result, the arrival of the respondents and other shipwrecked passengers in the SBAs in October 1998, followed by further arrivals in 2000 and 2001, gave rise to argument between the SBA Administration and the authorities in the Republic of Cyprus about which of them was to be responsible for the refugees and asylum seekers among them.
+These arguments were apparently resolved, at least for future arrivals, when, on 20 February 2003 the United Kingdom and the Republic entered into a Memorandum of Understanding relating to illegal migrants and asylum seekers in the SBAs.
+The Memorandum recited the following: In view of the full co operation between the Governments of the Republic of Cyprus and the United Kingdom envisaged in the Exchange of Notes between the Government of the United Kingdom and the Government of the Republic of Cyprus concerning the administration of the Sovereign Base Areas, dated 16 August 1960, and the attached Declaration by the Government of the United Kingdom; Emphasising the importance of the international obligations of the Governments of the United Kingdom and the Republic of Cyprus with regard to asylum seekers, including the prohibition on indirect refoulement; Bearing in mind humanitarian considerations, such as those reflected in the 1951 Convention relating to the Status of Refugees, and the need for the Republic of Cyprus and the United Kingdom to work together with a view to devising practical ways and means of respecting the rights and satisfying the needs of asylum seekers and illegal migrants in the Sovereign Base Areas; In light of the fact that the Government of the United Kingdom has committed itself not to develop the Sovereign Base Areas for other than military purposes and, in particular, not to allow new settlement of people in the Sovereign Base Areas other than for temporary purposes.
+The agreement which followed provided, in summary, for the full range of governmental services to be provided to refugees by the Republic, but at the expense of the United Kingdom.
+The relevant provisions are as follows: 1.
+For the purpose of this Memorandum of Understanding an asylum seeker is any person seeking international protection under the 1951 Convention relating to the Status of Refugees and the 1967 Protocol, or the European Convention on Human Rights or the United Nations Convention Against Torture 1984. 8.
+Asylum seekers arriving directly in the Sovereign Base Areas may move freely throughout the island of Cyprus and have the right to opt to stay outside the Sovereign Base Areas, subject to any requirements imposed upon aliens by the relevant laws of the Republic.
+The government of the Republic of Cyprus reserves the right to refuse entry to, or return, an asylum seeker for reasons of national security or on grounds of public policy. 9.
+Subject to paragraph 13, the Government of the Republic of Cyprus will grant the following benefits to asylum seekers arriving directly in the Sovereign Base Areas: (a) Free medical care in case they lack the necessary means; (b) Welfare benefits equivalent to those given to the citizens of the Republic of Cyprus; (c) The right to apply for a work permit in accordance with the relevant laws of the Republic of Cyprus; (d) Access to education. 10.
+Subject to paragraph 13, during their stay on the island of Cyprus persons recognised as refugees or granted any other the through form of international protection under the procedures determined in this Memorandum, will be treated so far as the authorities of the Republic of Cyprus are concerned, as if such persons had been recognised as refugees or granted another form of international protection by the Republic of Cyprus. 12.
+The United Kingdom, [SBA] Administration, will endeavour to resettle persons recognised as refugees in countries willing to accept those persons, not later than one year after the decision granting the relevant status has been taken.
+The joint consultative body established in paragraph 16 of this Memorandum will regularly review the progress made with this programme. 13.
+The United Kingdom will indemnify the Republic of Cyprus for the net costs incurred in giving effect to paragraphs 7, 8, 9 and 10 excluding costs in respect of those who first entered the island of Cyprus other than directly by the Sovereign Base Areas.
+This Memorandum of Understanding may be terminated at any time by the mutual written consent of both Participants or by either Participant giving not less than three (3) months prior notice in writing to the other Participant.
+Any dispute about this Memorandum will be resolved by consultations between the Participants. interpretation of the 18.
+Under paragraph 20 of the Memorandum, paras 7 10, 13 and 14 were to come into effect on the date of the accession of Cyprus to the European Union, in the event 1 May 2004.
+The authorities of the Republic of Cyprus took the position that the Memorandum did not apply to refugees such as the respondents who had already arrived in the SBAs before that date.
+The Secretary of States case, however, is that it was agreed between the Cypriot authorities and the SBA Administration in 2005 that it would deal with refugees recognised as such by the SBA Administration in accordance with the Memorandum of Understanding, irrespective of the date of their arrival in the SBAs.
+This agreement has never been recorded in writing, but evidence of it is given by Ms Lisa Young, the then Policy Secretary of the SBA Administrator, and there is documentary and other material supporting its existence and the effect claimed for it.
+We shall consider this further later in this judgment. 19.
+Shortly after the Memorandum of Understanding of 2003 was agreed, the Administrator of the SBAs enacted the Refugees Ordinance 2003.
+The Ordinance has been radically amended since it was first enacted, without, however, altering its essential tenor.
+Section 4 and Part 4 of the Ordinance gave effect within the SBAs to rights substantially corresponding to those conferred on refugees by the Convention, including in particular rights to public relief and assistance, social security, free education and the right to engage in paid employment: see section 23.
+Section 23(2) provided: The rights given to a refugee or asylum seeker under this Ordinance shall be treated as having been properly accorded to him whether they are accorded to him by the relevant authorities of the Areas or the Republican authorities and whether they are to be enjoyed in the Areas or in the Republic.
+In September 2011 in judicial review proceedings between certain refugees in the SBAs (including some of the respondents) and the SBA Administrator and the Secretary of State for Defence, the Senior Judges Court, which serves as the Court of Appeal for the SBAs, held that the Refugees Ordinance did not apply to those who were recognised as refugees before it was made: Bashir v Administrator of the Sovereign Base Areas of Akrotiri and Dhekelia and Secretary of State for Defence Appeal No 1 of 2011, 13 September 2011.
+The correctness of that view has not been challenged in these proceedings.
+Appeal lies from the Senior Judges Court to the Privy Council, but there was no appeal from this decision.
+The factual background relating to the respondents
+Foskett Js judgment contains an extensive narrative of the facts, which provides a valuable starting point for analysis.
+It must, however, be borne in mind that the issues between the parties have broadened in the course of the proceedings, partly because not all of the legal problems raised by the appeals were appreciated at the time of the trial, and partly because of the much broader basis on which the Secretary of State sought to justify her refusal to admit the respondents to the United Kingdom in her second decision of July 2017.
+As a result, Foskett Js findings may not constitute a complete statement of the facts relevant to the issues that now separate the parties.
+It is unnecessary for present purposes to do more than refer to some of the main points in the history. (Where relevant we give paragraph references to the HC judgment.)
+From 1998 2002
+We have already mentioned the circumstances in which the respondents and their families arrived in the SBAs in October 1998.
+Their accommodation since 2000 is described in the agreed statement of facts in the following terms: Since May 2000 the respondents have been housed in disused military accommodation in Richmond Village in the Dhekelia SBA.
+That accommodation, which was due to be demolished in 1999, is no longer regarded as truly habitable and there is an urgent need for a move of location to take place (HC 74).
+There are health concerns raised by the fact that asbestos in potentially harmful quantities and form (HC 146) has been discovered in all of the accommodation.
+It is common ground, as Irwin LJ said in the Court of Appeal (para 84) that their present conditions are quite unacceptable.
+The dispute is as to the extent to which, if at all, the SBA Administration or the UK government bears responsibility for that state of affairs.
+Between July 1999 and March 2000, each of the respondents was declared to be entitled to refugee status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, by orders made by the Chief Control Officer of the SBAs.
+The judge described in detail the extensive exchanges between the SBA Administration and officials in London as to how they should be dealt with, given the recognised impossibility of meeting the Convention obligations within the SBAs, and the unwillingness of the Republic at that time to assist in any way.
+At official level, there was a view that resettlement in the UK might be necessary.
+The judge quoted a letter from a Ministry of Defence official to the Home Office dated 22 December 1999 (HC 76): We have exhausted all the options that we thought were open to us.
+The refugees are the responsibility of the UK Government, but we have no means of discharging that responsibility while they remain in the Sovereign Base Areas.
+We frankly see no realistic alternative to their resettlement in the UK (Judges emphasis) The judge added (HC 77): 77.
+That same letter referred to the fact that the RoC was unprepared to accept responsibility for the those who might be assessed as refugees, that the UNHCR was not prepared to help with resettlement because its view was that it was solely the responsibility of the UK and that attempts to engage with the Canadian and US resettlement schemes had been rejected also.
+However, suggestions that they should be allowed to come to the UK met an unsympathetic response from Ministers.
+Thus, the judge noted (HC 86) a memorandum to the Minister for Europe dated 28 June 2001, which recorded that relocating them to the UK was not attractive to the Home Office and MoD Ministers have already objected to this approach, but noted that re settlement in a third country was unlikely to be realistic and that [the] Cyprus government will not take them on.
+The preferred option proposed to the Minister was relocation to the UK, but the Minister responded in a hand written note: I will not support relocation to the UK.
+This is not on politically (HC 86).
+To similar effect, in February 2002 a request from the SBA Authority (SBAA) seeking formal guidance, attracted a handwritten note, apparently by an MOD official: no answer is at hand.
+Yes they should be let into the UK, but ministers have said no. (HC 94 95)
+Concern about the situation of refugees in the SBAs was expressed by the UNHCR in a letter to the Permanent Representatives of Cyprus and the UK dated 13 June 2001 (HC 90).
+The then view of the Foreign and Commonwealth Office of the legal merits appears from an internal note (HC 91) prepared for a meeting of the Permanent Representatives and the UNHCR in November 2001, suggesting the line to adopt: Ministers decided in early 1999 that asylum seekers arriving in the SBAs should be treated in accordance with the UN Convention on Refugees, even though the Convention does not apply in the SBAs But strong reasons for the UK not allowing either the refugees or those that failed RSD permission to settle in the UK.
+Doing so would increase the attractiveness of the SBAs as a destination for asylum seekers and it would be politically untenable given continuing public concern at the number of asylum seekers entering the UK.
+The involvement of the Republic 2002 2013
+Faced with the political objections to resettlement in the UK, the governments strategy in 2002, agreed apparently at Cabinet level, seems to have been to use the desire of Cyprus to become a member of the EU as leverage to secure an acceptable agreement on the treatment of all the refugees and other asylum seekers, existing and future (HC 99 101).
+Early drafts included provision for those already granted refugee status in the SBAs.
+However, the Republic was adamant that existing asylum seekers in the SBAs should be dealt with separately from future arrivals.
+Accordingly, the final form of the agreement was prospective, applying only to future arrivals.
+As already discussed, the 2003 Memorandum, concluded on 20 February 2003, was implemented in the SBAs by the Refugees Ordinance 2003, and took effect on 1 May 2004, the date of accession of Cyprus to the EU.
+So far as appears from the judgment, there is no record of any further consideration at UK government level at that time of those existing refugees excluded from the Memorandum.
+The only formal statement of the governments position in this period, in the papers before this court (though not mentioned by the judge), is in a letter from the FCO to the UNHCR dated 23 May 2005 [MS 1509].
+It confirmed their view that the Convention did not in law apply to the SBA, and that it was inappropriate to extend the Convention to the SBAs because of their nature and size, and the prohibition on new settlements in the 1960 Treaty of Establishment.
+The letter referred to the 2003 Memorandum as providing detailed arrangements to ensure appropriate assistance by the Republic for refugees arriving directly into the SBAs.
+There was no reference to those already in the SBAs as refugees, such as the respondents.
+The next event of substance seems to have been in autumn 2004, when there began discussions between SBA officials and the Migration Department of the Republic (HC114 119).
+A meeting was held on 27 September 2004, followed by a letter from Mr Stainton, Administrative Secretary of the SBAA, dated 17 November 2004.
+This recorded that the Republic would assume responsibility for the 66 individuals who had entered the SBAs directly, and that the SBAA had also agreed to pay the costs as identified at the September meeting.
+There was no reply to that letter, but there was a further meeting between the SBAA and Republic officials on 28 January 2005, at which there was discussion of arrangements in relation to welfare payments, medical matters, education, housing, work and residence, and a fixed date for the transfer of responsibility.
+There is no written record of the actual agreement or understanding, nor of its precise content or even of its date.
+However, from about September 2005, it was treated by the local administration as a basis for stronger action to encourage the remaining refugees to transfer to the Republic.
+The judge referred to the closure of the school in September 2005 with the destruction of the playground, and the withdrawal of medical facilities, as confirmed in a memorandum from the then Fiscal Officer, Mr Pitts, dated 23 September 2005 (HC 123).
+Mr Pitts described the agreement as being: for all residents of Richmond Village to be transferred to the administration of the RoC and for each person to be provided with the opportunity to have their individual claim considered.
+The judge accepted that documentation issued thereafter, to some at least of the refugees, indicated recognition by the Republic authorities that they had obligations towards the claimants which hitherto had been denied (HC 131).
+The judge also described the efforts to draw the agreement to the attention of the refugees, and their immediate response, as recorded in the evidence of Mr Bashir (HC 120 121).
+He spoke of a meeting on 28 January 2005 at Richmond Village with the UNHCR and the SBAA Fiscal Officer Mr Jim Smart.
+Mr Smart told them of a new agreement which would change (their) situation and that (they) could be recognised as refugees in the Republic of Cyprus if (they) made an application to the Cypriot authorities.
+In response to questions why they had to make new applications when they had already been recognized as refugees, they were told of assurances that the Republic would recognise us and give us rights; but that they would need to reside in the Republic for a further seven years to be able to apply for citizenship, and that the years spent living in the SBAs would not count.
+The residents response was that they did not want to apply to the Republic and they would not move there, for a number of reasons: First of all, we were aware that the Cypriot Government had denied responsibility for us in 1998: The minister at the time made a public statement that we were the responsibility of the SBA and the UK.
+Secondly, for all the years we had lived in the SBA most of us at one time or another had been subjected to ill treatment from the Cypriot police and the Cypriot immigration authorities.
+Thirdly many of us were, and still are, afraid that we would be deported back to our countries of origin if we agreed to become the responsibility of the Republic of Cyprus.
+Fourthly, we had already been living in limbo since our arrival on the SBAs and we were not the responsibility of the Republic of Cyprus, we were and are the responsibility of the UK who should have done more to assist us.
+We would observe that the reasonableness or otherwise of that response has been at the heart of the dispute ever since.
+Sadly, it evidences the existence of something of a stand off between the SBA authorities and the refugees which has in some measure continued until today regarded by the authorities as due to obstinate non cooperation by the refugees, and by them as legitimate insistence on the discharge of the duties for which the UK, not the Republic, was responsible.
+However, as the judge recorded (HC 128), notwithstanding this resistance, a number of the claimants did seek paperwork promised under the agreement.
+In fact, it appears that all but one did this.
+The Republic registered them as refugees for the purposes of their domestic legislation, thereby recognising their entitlement to the support provided for by the Refugee Convention.
+The evidence of Mr Gondelle is that the SBAA made payments to the Republic on this basis under paragraph 13 of the Memorandum.
+Mr Bashir himself says that the Republic gave him and most of the refugee families Cypriot documentation, including an alien registration certificate, a temporary residence permit, a medical card for him and his family, a travel document and a work permit.
+Further, as their witness statements show, the respondents have made extensive use of the facilities provided by the Republic under the MoU. The lead claimant, Mr Bashir, is a good example.
+He declines to move from the SBA to the RoC, but he met his current wife while working in the RoC; they were married in the RoC and their children were born there and go to school there.
+The absence of any written record of the agreement was later confirmed by Mr Stainton, the SBA Administrator.
+The judge (HC 138) referred to a note by him in October 2006 of a meeting earlier that month, attended by representatives of the Republic Asylum Service and the UNHCR, at which the Asylum Service had confirmed their intention to honour their commitments under the Memorandum and more importantly that they will apply it retrospectively to those who arrived in Cyprus via Akrotiri in 1998 .
+This was seen by him as important because there is no written agreement that they will other than an exchange of letters agreeing the sum of money the SBAA will pay for each applicant and family member. (HC 138)
+Mr Stainton also recorded that he intended to cease welfare payments for those who had not registered with the RoC from 31 January 2007, followed by eviction proceedings from the village.
+This intention was carried into effect and led to a demonstration which went on for some weeks until (in Mr Bashirs words, quoted by the judge) around March 2007 the SBAA backed down [and] stated that they were not going to evict us or cut our weekly payments.
+They also agreed to issue us new travel documents (HC 140).
+The subsequent progress of the informal agreement was described by the judge as chequered (HC 373).
+Mr Gondelle, who became the SBAA Administrative Secretary in August 2008, said in evidence to the SBA courts that there were records of payments made to the Republic in respect of families recognised as refugees, but that to the best of his knowledge, the Republic had not yet given full practical effect to the agreement, and that its implementation in practice [had] not been straightforward.
+By the time of his involvement in 2008, it was uncertain whether the RoC [was] still willing in principle to abide by the Agreement (HC 142).
+The judge went further, finding in the evidence a clear indication from the RoC in 2008 that it was not prepared to adhere to the informal understanding that the 2003 Memorandum would be applied to the refugees, although the respondents were not aware of this at the time (HC 144 145).
+The next event of significance came in February 2009, following the discovery of asbestos in some of the properties in Richmond Village.
+Mr Gondelle prepared a minute with a view to inviting Ministerial approval to permit all existing residents in Richmond Village to move to the UK (HC 147 148).
+The minute indicated that Home Office officials were supportive, and attached a letter to the relevant Minister.
+As the judge observed (HC 151), the minute made reference to the 2003 Memorandum, but none to the 2005 agreement; instead it noted that the Republic was reluctant to provide assistance of any nature to the SBA because it considered that the British military should end their presence in the SBAs and return the land to the RoC.
+The recommendation was not accepted.
+At a meeting of the relevant Ministers in June 2009, the joint view was that bringing them to the UK was not a desirable option.
+Instead authorisation was given for a carrot and stick approach, which involved the SBA paying for rented accommodation in the Republic for an initial period while simultaneously evicting the refugees from their current housing, and discontinuing welfare payments.
+In an email dated 16 December 2009 Mr Gondelle noted that the Home Office, while recognising the complexities of the situation and that entry to the UK might ultimately be necessary, was unwilling to authorise a significant departure from its current policy without first exploring the alternatives.
+The SBA Administration remained convinced that entry to the UK will ultimately prove to be the only solution (HC 152 154).
+Attempts to implement the new carrot and stick approach were impeded by judicial review proceedings in the SBA courts, commenced in April 2010 (HC 160).
+The Senior Judges Appeal Court, in a judgment given on 13 September 2011, held that the Convention did not apply to the SBA.
+As already noted, there was no appeal to the Privy Council.
+In the course of those proceedings the respondents solicitor had written to the Republics Ministry for Foreign Affairs asking about the agreement to resettle the refugees, on which the SBA authorities were relying.
+The reply dated 18 June 2010 stated (as translated from the Greek): there is no written agreement with the United Kingdom as regards case of your customers.
+The Republic of Cyprus had merely accepted to implement commensurately the relevant Memorandum of Understanding between the Republic of Cyprus and the United Kingdom in certain cases which concern persons that had arrived in Cyprus before the date of its entry into force.
+The judge observed that this appeared to be the only document emanating from the [Republic] in which the existence of the 2005 understanding is mentioned (HC 161 162).
+However, in the course of his evidence put before the Senior Judges Appeal Court, Mr Gondelle confirmed that since 2008 he and his staff had had many meetings with the Republics Asylum Service and Ministry of Foreign Affairs, during which it had indicated its willingness to cooperate, even though the effect appears to have not always reached other departments, that during his last meeting with the Director of the Republics Civil Registry and Migration Department, in late 2009, she had confirmed arrangements were in place to ensure that recognised refugees would receive welfare benefits from the Republic and that it was only after these assurances that SBA benefits had been withdrawn.
+Although free transport and the assistance of SBAA officials was offered to the respondents in March 2010 to take up such benefits, this offer was rejected by all of them.
+The UK governments understanding of the position as at the end of 2011 appears from a letter quoted by the judge from the UK Border Agency to the UNHCR dated 8 November 2011 (HC 163).
+Having explained the background it stated: The Republic of Cyprus (RoC) has agreed to accept and resettle the refugee families, but due to their distrust of the RoC, the refugee families have refused to move from their current accommodation in Richmond Village (former Service family accommodation) on the SBA.
+A Memorandum of Understanding (MoU) was signed with the RoC in 2003 to prevent this situation occurring again.
+Under this MoU the RoC handles all asylum seekers that enter the SBA.
+This has worked well.
+But the original applicants remain the responsibility of the SBAA.
+In 2007 [sic], an informal agreement was reached between the SBAA and the RoC, under which the RoC agreed to honour any decisions made by the SBAA in respect of the families and take responsibility for them.
+The UK Border Agency again provided assistance and sent caseworkers to the base to interview 25 of the individuals.
+Unfortunately, the families failed to co operate and the interviews never took place
+Events leading to the present proceedings
+In the proceedings before the Senior Judges Appeal Court, the respondents complaint that the Republic would not honour any commitment to make payments was found to have no evidential foundation [paras 63 69, MS 859 62].
+Since those proceedings, there is however evidence of a further consolidation of the respondents attitudes regarding any cooperative arrangements with the Republic pending the outcome of the present proceedings.
+Ms Charalambidou, the respondents legal representative in Cyprus, expressed this very clearly on their behalf in a letter of 31 December 2012: l would finally like to inform you that the refugee families continue to consider themselves as the responsibility of the SBAA and the United Kingdom and therefore they have informed me that they do not intend under any circumstances to be considered as the responsibility of the Republic of Cyprus.
+On 30 September 2013, following a meeting at the UNHCR offices in Nicosia, Ms Charalambidou, and the local representative of the United Nations High Commissioner for Refugees wrote jointly to the Administrator of the SBAs about the respondents predicament.
+They observed that although resettlement in the Republic had at one stage been seen as a desirable and practical option, the respondents did not consider this to be an option, based on their own experiences and for reasons that need not be discussed.
+The UNHCR representative added that in any event the Republic was no longer willing to take them because of the after effects of the financial crisis of 2008 and the number of refugees that it had already accepted.
+Both signatories expressed the view that resettlement in the United Kingdom was the only conceivable option.
+That letter was passed by the SBA Administrator to the Home Office, but there was a delay of more than a year in replying.
+The judge discussed the evidence about the drafting of the reply (HC 351 354) including an internal response of a Home Office official, apologising that the chasing email from the SBA had slipped under [his] radar: the UK has no legal obligation to accept the applicants, refugees or not, and there are no close family ties or previous residence in the UK or any compelling humanitarian reasons in their favour.
+All in all, there would be no appetite to accept this particular group, whose non cooperation and behaviour would make any country reluctant to take them.
+The judge commented (HC 354) that this response suggest[ed] a closed mind on the part of the Home Office to the question of admission of the refugees to the UK and to anything said in support of it by the UNHCR.
+The formal reply eventually came in a letter dated 25 November 2014 in a letter from Mr Rob Jones, the Home Office Head of Asylum and Family Policy.
+The operative part of Mr Jones letter read As was explained in a letter of 8 November 2011 to the London representative of the UNHCR (copy enclosed), Home Office Ministers and officials have consistently made it clear that there could be no question of the families on the SBA being admitted to the UK.
+The families have at no time been given any encouragement to believe that they could be.
+It would be contrary to UK policy to accept the transfer of refugees who have no close connection to the UK and it would also be inconsistent with our policy on asylum applicants who arrive in British Overseas Territories or Crown Dependencies.
+Although their presence on the Base has been tolerated by the SBA, their stay gives the families no claim to admission to the UK.
+The UKs policy on the admission of refugees is in accordance with the 1951 Refugee Convention and the UK accepts no responsibility for the consideration of applications for asylum or transfer of refugee status other than those made on UK territory, namely the mainland territory of the UK and excluding the UKs Overseas Territories, Crown Dependencies, or Sovereign Bases such as the ones in the Republic of Cyprus.
+Our position, therefore, is that none of the refugee families on the SBA will be considered for admission to the UK.
+They have no family or residential ties with the UK and there are no reasons for treating them exceptionally.
+The families have the right to reside in the Republic of Cyprus and have strong ties with the Republic.
+We do not believe that their preference for the UK should be allowed to override what is demonstrably a durable and suitable solution for their long term residence.
+The present proceedings were brought by way of application for judicial review of the decision of the Secretary of State said to have been communicated in that letter.
+The High Court
+The respondents application came before Foskett J in March 2016.
+He gave judgment on 28 April 2016.
+He held that as a matter of international law, the Refugee Convention did not apply to the SBAs because they were indeed a new international entity created in 1960.
+He went on to deal with the United Kingdoms declared policy of observing the spirit of the Convention.
+He recorded it as common ground (because it was accepted in internal documents passing between the SBA Administration and government departments in London) that the United Kingdom could not in practice provide the respondents with their full Convention rights within the SBAs with the facilities currently available there.
+Although he made no formal finding of his own to this effect, it is clear from his analysis of the evidence that he agreed.
+It followed that a level of support consistent with the spirit of the Convention could be achieved only (i) by effective resettlement of the respondents in the Republic of Cyprus, either by their moving there or by their remaining resident in the SBAs but relying on facilities provided by the Republic by arrangement with the SBAs; or (ii) by resettlement of the respondents in the United Kingdom.
+The Judge held that it would be consistent with the spirit of the Convention for the United Kingdom to support the respondents by making arrangements with the Republic of Cyprus to do so.
+He therefore considered that option (i) would be lawful if it could be achieved.
+He made no finding as to whether in fact it could be achieved.
+But he held that Mr Joness letter had failed to address the view expressed by the UNHCR local representative in UNHCRs letter dated 30 September 2013 that, even if relocation to the Republic of Cyprus may have been seen as the most desirable or practical option in the past, this is not the case anymore because of the financial crisis prevalent in the Republic; and that accordingly, consideration was not given as at the time of the decision letter in November 2014 to the strengths and/or weaknesses of the informal agreement reached in 2005.
+The decision letter had thus failed to consider a crucial factor in deciding whether to admit the claimants to the UK within the general discretion available to the Secretary of State (HC 397).
+He therefore quashed the Secretary of States decision.
+He left it to the Secretary of State to consider, when taking a fresh decision, whether support through the Republic of Cyprus was a practical proposition.
+The Court of Appeal
+The Secretary of States appeal was heard by Jackson, Briggs and Irwin LJJ in January 2017.
+In its unanimous judgment delivered on 25 May 2017, the Court held, overruling the judge, that the SBAs were not a new entity and that the Refugee Convention continued to apply to them by virtue of the United Kingdoms notification of 1956.
+In those circumstances, the question was no longer what was implied by the United Kingdoms policy of observing the spirit of the Convention.
+The Court of Appeal did not deal with the question whether the terms of the Convention required the United Kingdom to resettle the respondents in its metropolitan territory, nor with the question whether it was open to the United Kingdom in point of law to support the respondents through arrangements made with the Republic of Cyprus.
+Instead, they quashed the existing decision and directed that it be remade by 6 July 2017 on the footing that the Convention applied directly.
+Irwin LJ, delivering the only substantive judgment, said (para 79): In my judgment the outcome of that decision must take into account the history but cannot be determined by this court merely by re analysing the historic evidence.
+The decision must be taken in relation to the current facts He also identified some obvious factors which he thought absolutely critical to the decision.
+They included his view that the obligations of a State with responsibility for refugees could not be exported but remained with the Secretary of State (para 80); that the suggestion of counsel for the Secretary of State that they could be permitted to remain where they were was likely to be inconsistent with article 34 of the Convention, given the possibility of their assimilation into the UK or other British Overseas Territories (para 81); and that, while the arrangement with the Republic did not amount to constructive expulsion within article 32, a repeat of that approach, absent agreement to resettlement in the Republic, would be very likely to represent a repeated failure to meet the obligations which I conclude fall upon the UK (para 83).
+He added: 84.
+Prominent amongst the relevant factors must be the enormous delay which has affected these claimants and their families.
+There can be no justification for any future decision which leaves these claimants position unresolved for any further length of time.
+As the judge made clear, their present conditions are quite unacceptable.
+That appears to be common
+ground
+It followed from the way that the case was put in the courts below and from the somewhat different bases on which Foskett J and the Court of Appeal quashed the Secretary of States decision that neither of them needed to decide whether or not it was in practice feasible to support the respondents through the facilities provided by the Republic of Cyprus under the Memorandum of Understanding.
+Foskett J in terms left that matter to be determined in a new decision, in which the Secretary of State would be required to address the misgivings of the UNHCR local representative on that score.
+The Court of Appeal implicitly did the same, while pointing to a number of factors which she should take into account.
+Further exchanges
+On 16 June 2017, after the decision of the Court of Appeal, the United Nations High Commissioner for Refugees wrote to the Secretary of State asking her to reconsider her decision not to admit the respondents to the United Kingdom.
+In his letter, the High Commissioner raised doubts about the practical feasibility of supporting them through facilities provided by the Republic of Cyprus, after 19 years and in the absence of any formal agreement or assurances regarding their future in the Republic.
+He concluded: These refugees find themselves in a state of legal limbo with seriously compromised or no access to welfare, health care, education, and employment.
+Recently, welfare benefits have been reduced, and these refugees have been unable to renew their medical cards in the Republic of Cyprus, which are required to access health care.
+They also have not been able to access either tertiary education or employment in the Republic of Cyprus.
+Of serious concern, these refugees and their families are living in sub standard housing, which needs to be demolished due to the presence of asbestos.
+Meanwhile, the Court of Appeal having refused to stay its decision, the Secretary of State was obliged to make a fresh decision in compliance with its order by 6 July 2017.
+It is unnecessary to set it out in detail at this stage.
+She declined to allow the respondents entry into the United Kingdom.
+Her reasons were substantially the same as those given on 25 November 2014, except that the fresh decision, unlike the original one, directly addressed the options open to the respondents other than resettlement in the United Kingdom.
+It is apparent that she did not accept the version of events put forward by the UN High Commissioner.
+She considered that on the footing that the Refugee Convention applied in the SBAs the United Kingdom could comply with its obligations by arranging for the respondents to be supported by the Republic of Cyprus.
+The reason, she said, why that had not happened was that the respondents had declined to engage with the authorities in the Republic while there was any prospect that the present proceedings might result in their admission to the United Kingdom.
+While accepting that the 2003 Memorandum itself only applied to persons arriving in the SBAs on or after 1 May 2004, she stated again that in 2005 the Republic of Cyprus agreed to apply it to those who arrived in 1998.
+She addressed the concerns of the UNHCR local representative in the following terms: As you are aware, in 2003, the UK and the Republic of Cyprus signed a Memorandum of Understanding under which the Republic agreed to treat persons who arrived directly in the SBAs, and were recognised as refugees under the procedures contained in that Memorandum, as if they had been recognised as refugees by the Republic.
+Whilst the Memorandum itself only applies to persons arriving in the SBAs on or after 1 May 2004, in 2005 the Republic of Cyprus agreed to apply it to those who arrived in 1998.
+I have carefully considered the UNHCR letter of 30 September 2013, in which the UNHCR raised concerns because of the financial crisis in Cyprus at that time and claimed that the Republic of Cyprus had stated they could not take any more refugees.
+As was explained on the Secretary of States behalf in the Court of Appeal, the reference appeared to be to a speech by the Interior Minister, but he had actually said that the Republic could not sustain any more asylum seekers, though would still honour all international conventions and agreements on human rights.
+In any event, whilst I acknowledge there was a period in 2008 when it appeared that the Republic no longer stood by what it had agreed in 2005, the officials have since confirmed many times, both during the period between 2008 and 2013, and after the UNHCR letter of September 2013 that the Republic is committed to its 2005 agreement and stands by its decision in 2005 (documents in letters to you) to recognise you as refugees and grant you the rights to which you are entitled as a refugee in the Republic.
+The Sovereign Base Areas Administration (SBAA) is actively engaged, in cooperation with the Republics Asylum Service and its Labour Office, in efforts to assist you to access the help which this agreement clearly makes available to you.
+I have also carefully considered the UNHCR letter of 16 June 2017 in which concerns were raised about the impact on your health given the need to find a durable solution.
+However, I note that there is a durable solution available to you but you have been unwillingto engage with the Republic or take up the offer to obtain support from the Republic of Cyprus until the final outcome of the litigation.
+This was acknowledged by Chrystalla Katsapaou of UNHCR Cyprus at a recent meeting with the SBAA.
+I do not accept that you or your family members are subject to compromised or no access to welfare, health care, education or employment.
+This is simply not true.
+You are able to use the health services of the Republic and I am aware that the children already attend schools in the Larnaca district.
+You are entitled to register with the Labour Office and to claim welfare benefits as if you were nationals of the Republic.
+You would have to cooperate with the registration process of course, but that would be the same in any country to which you were resettled and I do not accept that your failure to cooperate should lead to a grant of entry clearance to the UK.
+Depending on the composition of each family, you can expect between 600 Euros and 1,100 Euros per family per month more than the ex gratia payments which were previously provided to you by the SBAA.
+I consider that there is adequate support available should you decide to take advantage of this.
+There is also work available that you could choose to take advantage of.
+The Labour Office in Larnaca will help you find work if you register with them.
+I am aware that the Labour Office offered to help you register and provide more information about the Republics system but you refused to do so.
+In addition, the Minister of the Interior has recently indicated that the Republic would look positively at applications you choose to make for naturalisation as Cypriot citizens. the SBAA, In the circumstances set out above, and as a result of ongoing discussions between the Foreign and Commonwealth Office and the Republic of Cyprus in order to try to support you, I have concluded that there remains a durable long term solution available for you to stay in the SBAs should you choose to do so, and look to the Republics government for public services and provision, as Cypriot nationals living in the SBAs do.
+Alternatively, there is an option for you to resettle in the Republic of Cyprus.
+In either case you could apply for Cypriot citizenship.
+I have also considered whether to grant entry clearance on compassionate grounds, in spite of the absence of any legal obligation to admit you to the UK, either under the Immigration Rules or by virtue of the Refugee Convention.
+In all the circumstances, I am not willing to do so.
+I take the view that the solution which has been on offer for many years is one which it is reasonable to expect you to take up.
+On 7 July 2017 the Secretary of State directly responded to the UNHCRs letter of 16 June 2017 in similar terms to her fresh decision of 6 July.
+The UNHCR replied to the Secretary of State on 26 October 2017 to clarify and share additional information about its June observations.
+Additional comments were provided on the Memorandum of Understanding and the precariousness of its application to the SBA refugees and difficulties faced by the SBA refugees regarding access to welfare assistance, access to the labour market, access to health care, access to education, access to long term residence and access to citizenship in the Republic of Cyprus.
+At the hearing Mr Eadie indicated that the Secretary of State was preparing a response to the UNHCRs most recent letter.
+The court received that response on 26 July 2018 from the Government Legal Department in the form of a letter dated 8 January 2018 without further comment from the parties on its contents.
+Accordingly, the present position is that the decision of 25 November 2014, which is the subject of the respondents application for judicial review, no longer exists.
+It has been quashed by the courts below and superseded by the fresh decision which the Secretary of State has now made in accordance with the order of the Court of Appeal.
+The Secretary of States current decision has not been quashed and is technically not before this court.
+The subject matter of the Secretary of States two decisions is, however, the same and they raise issues which partly overlap.
+The issues in the appeal
+As noted at the beginning of this judgment, the issues as they have emerged were not clearly identified in the agreed statement or in the pre hearing exchanges.
+No purpose would be served at this stage by examining the reasons for that failure.
+It would be highly unsatisfactory, as we approach the twentieth anniversary of the respondents arrival in the SBAs, to remit these issues to the High Court or leave them to be determined on a further application for judicial review of the Secretary of States decision of 6 July 2017.
+In these circumstances, we think that the least unsatisfactory approach is for us to identify the issues which now appear essential to the resolution of this appeal, to give judgment now on the issues which we are in a position to decide at this stage, and to make proposals for the early resolution of the remainder.
+In summary the following questions appear now to require decision: i) Does the Refugee Convention (as extended by the 1967 Protocol) apply to the SBAs? ii) Does the Convention by its terms entitle the respondents to be resettled in the United Kingdom? iii) Was the Memorandum of Understanding of 2003 a valid performance of the Convention obligations for those within its scope? In particular: a) Was the United Kingdom in principle entitled to fulfil its obligations under the Convention by arranging for support to be provided by the Republic of Cyprus? b) If so, were the terms of the Memorandum of Understanding (including the 2003 Refugee Ordinance) a proper basis on which to do so? If the answer to (iii) is yes: a) Was the United Kingdom entitled in 2005 to make the same arrangements in respect of the respondents without their consent, given their lawful and accepted presence as refugees in the SBAs since 2000? iv) b) If so, was the 2005 agreement with the Republic a legally effective means of doing so, having regard to its informality and the absence of incorporation into SBA law? c) Has the support of the Republic for the respondents in accordance with the 2005 agreement been available in practice, and can it be assured in the future? v) If the 2005 agreement, for whatever reason, was not a legally effective means of discharging the United Kingdoms obligations to the respondents under the Convention, or if such support has not been available in practice, what are the consequences, in terms of rights or remedies potentially available in these proceedings, and how should the court give effect to them in its order?
+Questions (i) and (ii), which are questions of international law, have been fully argued, and will be addressed in this judgment.
+We will also address issue (iii) in so far as it is relevant to the respondents case.
+We will then give a brief provisional view of the matters likely to require consideration under the other heads.
+We appreciate that Mr (now Sir) James Eadie QC submitted that at any rate points (b) and (c) under issue (iv) fell outside any issues argued below or for which leave to cross appeal to this Court has been obtained.
+Any objection of this nature will remain open for consideration, though we would wish to determine any issues which can fairly be determined. (i) Does the Refugee Convention (as extended by the 1967 Protocol) apply to the SBAs?
+The respective positions of the parties in summary are as follows.
+The respondents say that the Convention applies by virtue of the United Kingdoms declaration of 1956 under article 40(2).
+The Secretary of State says that the SBAs are new entities in international law, created in 1960, in relation to which no such declaration has been made.
+He accepts that the respondents have been treated as refugees protected by the Convention but contends that this was not a legal entitlement but an ex gratia concession made in accordance with the United Kingdoms policy relating to dependent territories where the Convention does not apply.
+Given that until 1960 the Convention unquestionably applied to the territory now comprised in the SBAs, the question is whether the political separation of that territory from the rest of the island brought an end to its application there.
+This is necessarily a question of international law.
+But while international law may identify the relevant categories and the principles that apply to them, the question whether a particular territory falls within a relevant category will depend on the facts, and these may include its domestic constitutional law.
+The only mode of termination expressly provided for in the Convention is denunciation, which is governed by article 44.
+The Convention has not of course been denounced by the United Kingdom, either generally or with respect to the SBAs.
+But as between contracting states, there are a number of other circumstances in which treaty obligations may come to an end, so far as they relate to particular territory.
+In particular, they may come to an end as a result of a sufficiently radical change in the international status of that territory.
+There is a substantial body of state practice bearing on this question, which is summarised in standard works such as Oppenheims International Law, 9th ed (1992), ed Sir Robert Jennings QC and Sir Arthur Watts, i, paras 62 64 and McNair, The Law of Treaties (1961), pp 600 606, 629 638.
+The ordinary principle is that obligations in international law are owed by international persons, primarily states.
+As subjects of international law, international persons enjoy rights, duties and powers established in international law and more generally a capacity to act on the international plane.
+Treaty obligations apply to the international entities which enter into them.
+Where they have territorial application, they apply to the states responsible internationally for the territory in question.
+It follows that treaty obligations will cease to apply to a territory where it secedes from the state which entered into the treaty, or where a formerly dependent territory becomes independent of the parent state which entered into the treaty.
+There is some support in state practice for the application of a broader rule to treaty obligations of a non political and especially of a humanitarian character.
+The broader rule would attach treaty obligations to territories rather than to the international persons responsible for them.
+The International Law Commission of the United Nations, in presenting draft articles on state succession to the General Assembly in 1974 (Document A/9610/Rev.1), expressed the opinion that some legal incidents may attach to an antecedent treaty on the ground that it establishes a legal nexus between the territory and the treaty such that a successor state will be bound by it: Yearbook (1974), vol ii(1), p 167, para (49).
+However, it is clear from the commentary that the circumstances in which the question arises are too varied and state practice on the point is insufficiently uniform and too obviously influenced by pragmatic considerations to give rise to a rule of customary international law: ibid, pp 196 199, 202 207, paras 1 9, 21 48.
+This is, as the editors of Brownlies Principles of Public International Law, 8th ed (2012), at p 424, note an area of uncertainty and controversy.
+In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] AC 453, the House of Lords had to answer the question whether the European Convention on Human Rights applied in the British Indian Ocean Territory (BIOT) by virtue of the extension of the Convention to the then colonies of Mauritius and the Seychelles in 1953 under a similar colonial clause.
+The BIOT comprised outlying groups of islands formerly part of those colonies, which had been separated from them for defence purposes in 1965 and constituted as a distinct colony by the British Indian Ocean Territory Order 1965 (SI 1965/1920).
+Section 3 of the Order provided that the islands, shall together form a separate colony which shall be known as the British Indian Ocean Territory.
+Mauritius and the Seychelles subsequently became independent in 1968.
+Lord Hoffmann, with the agreement of the rest of the Appellate Committee, dealt with the question at para 64 as follows: In 1953 the United Kingdom made a declaration under article 56 of the European Convention on Human Rights extending the application of the Convention to Mauritius as one of the territories for whose international relations it is responsible.
+That declaration lapsed when Mauritius became independent.
+No such declaration has ever been made in respect of BIOT.
+It is true that the territory of BIOT was, until the creation of the colony in 1965, part of Mauritius.
+But a declaration, as appears from the words for whose international relations it is responsible applies to a political entity and not to the land which is from time to time comprised in its territory.
+BIOT has since 1965 been a new political entity to which the Convention has never been extended.
+We have been invited to overrule this decision.
+It is said to be inconsistent with ordinary principles of international law whereby (i) international obligations are owed in respect of specific territory, and (ii) a states international responsibility is unaffected by changes to the governance or constitutional status of some part of its territory.
+It will be apparent from what we have already said that we do not accept this criticism.
+As to proposition (i), it is a truism that a states international responsibilities are generally owed in respect of particular territory.
+But it does not follow that the responsibility attaches to the territory as such, rather than the international person responsible for it.
+Otherwise, where a state assumes treaty obligations in respect of its entire territory, the severance of part of that territory could never result in those obligations ceasing to apply to it.
+Yet it is accepted that that is not the position.
+As to proposition (ii), it is correct that a state cannot rely on its domestic law as authorising or excusing a breach of its international obligations: see Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory (1932) PCIJ, Series A/B No 44, p 4, at p 24.
+The proposition is stated as follows in article 3 of the International Law Commissions Articles of Responsibility of States for Internationally Wrongful Acts (2001): The characterisation of an act of State as internationally wrongful is governed by international law.
+Such characterisation is not affected by the characterisation of the same act as lawful by internal law.
+This, however, assumes that the state in question is subject to the relevant international obligation.
+Where that obligation is derived from a treaty, the prior question is whether the treaty applies to the particular State in respect of the particular territory.
+That will necessarily depend on the current constitutional relationship between the state and the territory in question.
+Thus the international responsibility of the United Kingdom in respect of British Dominions has always depended on the constitutional relationship between them as it stood from time to time, which is a matter for their domestic law.
+The Statute of Westminster 1931, which confirmed the status of the Dominions as independent sovereign states, was an Act of the United Kingdom Parliament.
+It would have been absurd to suggest that international law would for that reason have declined to take cognizance of it, or would have treated it as an ineffective attempt by the United Kingdom to avoid the international obligations which it previously had for the Dominions acts.
+The decisive point is in our view a different one.
+The decision in Bancoult (No 2) was about the constitutional and international status of the BIOT, which is materially different from that of the SBAs.
+The Cyprus Act 1960 did not alter the status of the SBAs, but merely excluded them from the transfer of territory to the new Republic of Cyprus.
+The Sovereign Base Areas of Akrotiri and Dhekelia Order in Council 1960 has no equivalent of section 3 of the British Indian Ocean Territory Order 1965.
+Indeed, it says nothing at all about the status of the SBAs, but only about the organisation of their internal administration.
+These differences reflect the very different nature of the changes of which the orders were part.
+The BIOT was a territory reconstituted from parts of two other colonies to make a third colony.
+It had a different international status (ie vis vis third countries) from Mauritius and the Seychelles, and the United Kingdom had different international responsibilities in relation to it, notably in regard to the United States.
+In the case of the SBAs, the only change which occurred in 1960 was that whereas they had previously been part of the UK dependent territory of Cyprus, they were thereafter the whole of it.
+The mere fact the United Kingdom lost 97% of the island of Cyprus did not alter the status of the 3% that it retained.
+The status of the SBAs vis vis the rest of the world did not change, except in relation to the rest of Cyprus, and that was because of a change in the status of the rest of Cyprus and not because of a change in the status of the SBAs.
+With one exception, we find it difficult to attach much importance to the various instances cited by the respondents in which the United Kingdom has treated the creation of new colonial entities as leaving unaffected the application of treaties which previously applied to them.
+These instances include the separation of the Cayman Islands and the Turks and Caicos Islands from Jamaica in 1958 and the dissolution into its component territories of the Federation of Rhodesia and Nyasaland in 1963.
+They do not constitute a sufficient body of state practice to give rise to a rule of customary international law.
+At the most they show that the United Kingdom has not been consistent on this question.
+The exception is the treatment by the United Kingdom of treaties of mutual legal assistance which had been extended to Cyprus under colonial clauses before 1960.
+The United Kingdom has taken the position in its dealings with other countries party to these treaties that (in the words of a Foreign Office memorandum) treaties which had applied to the colony of Cyprus continued automatically to apply to the two pieces of territory now known as the Sovereign Base Areas.
+This has been tacitly accepted by all of them except, briefly, the Lebanon.
+The Lebanon was told that creation of an independent Republic of Cyprus effected no change in the international status of these areas (see HC 237).
+These exchanges do not suggest a rule of customary international law, any more than the other instances do.
+But they are, we think, relevant as a statement of the international status of the SBAs by the state responsible for their international relations, which is ultimately in a position to determine what their international status is to be.
+The position taken by the Foreign Office accords precisely with the law as we conceive it to be as a matter of analysis.
+We conclude that the Refugee Convention continues to apply to the SBAs by virtue of the declaration of 1956, in the same way as it applied to the whole colony of Cyprus before 1960.
+Article VII(4) of the 1967 Protocol provides that where a state made a declaration under article 40(1) or (2) of the Convention extending its application to a territory for whose international relations it was responsible, and then acceded to the Protocol, the declaration should apply to the Protocol also, unless that state notified the Secretary General to the contrary.
+In other words, no further declaration was required to extend the Protocol to dependent territories where the original Convention applied.
+The United Kingdom acceded to the Protocol without any reservation relating to the SBAs.
+It follows, since the Convention continued to apply to the SBAs after 1960, that the Protocol applies there also.
+That makes it inappropriate to assess the United Kingdoms treatment of the respondents by reference to the spirit of the Convention.
+The United Kingdom is, as a matter of international law, bound by the Convention and the Protocol as such. (ii) Does the Convention by its terms entitle the respondents to be resettled in the United Kingdom?
+The respondents say that they have a direct right to entry into the United Kingdom under the terms of the Convention, by virtue of their status as refugees in a territory under the United Kingdoms sovereignty.
+Specific reference is made to articles 26, 32 and 34.
+This is a question of great general importance.
+It may be restated as follows.
+Is it the effect of the Convention that, once a refugee reaches a dependent territory of a state (such as an SBA) to which the Convention applies, the refugee is entitled without more to move freely to what article 19(2) of the Convention calls the metropolitan territory of that State or to any other dependent territory of the same state to which the Convention has been extended?
+The territorial application of a treaty is a question of international, not domestic law.
+It depends, like most aspects of the law of treaties, on the intention of the contracting states.
+Article 29 of the Vienna Convention on the Law of Treaties (1969) provides that: unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.
+Multilateral treaties, however, commonly provide for a different intention.
+As Sir Humphrey Waldock, Special Rapporteur, demonstrated in his Third Report on the Law of Treaties to the International Law Commission (1964) (A/CN.4/167), at pp 12 15, this is reflected in the practice, which can be dated back to the 1880s, of inserting clauses excluding the application of treaties to parts of the territory of a contracting state, or making their application there subject to conditions, such as local consent or subsequent notification: see, more generally, Fawcett, Treaty Relations of British Overseas Territories (1949) 26 BYIL 86, 94 99.
+The practice originated in the need of imperial powers, and notably the United Kingdom, to consult the governments of dependent territories on whom it had conferred a measure of autonomy, before assuming international obligations affecting them.
+But it has also been adopted by federal states, in cases where the federal government has exclusive responsibility for international relations but part or all of the subject matter of the treaty is within the exclusive legislative competence of its component territories.
+These particular concerns are commonly dealt with by colonial clauses and federal clauses.
+In principle, however, states are at liberty to enter into treaties on terms as to their territorial application for any reason that they see fit.
+The widespread use of colonial clauses reflects the principle that for certain purposes, including the application of treaties, dependent territories of a state are treated as having a status in international law distinct from that of the parent states metropolitan territory.
+More generally, it reflects one of the basic principles of international law declared in the United Nations Declaration on Principles of International Law concerning Friendly Relations and Co operation among States in accordance with the Charter of the United Nations (General Assembly Resolution 2625 (XXV)) (1970), that: the territory of a colony or other Non Self Governing Territory has, under the Charter, a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the colony or Non Self Governing Territory have exercised their right of self determination in accordance with the Charter, and particularly its purposes and principles.
+It is true that the purpose of colonial clauses is to accommodate the limited autonomy accorded by some imperial powers to the more advanced dependent territories.
+It is also true that the purpose of this particular part of the United Nations Declaration is to accommodate the principle of self determination and the trusteeship obligations of colonial powers.
+These purposes may be said to have limited if any relevance to uninhabited territories or to sui generis cases such as the SBAs, which are military facilities rather than settlements, and whose indigenous inhabitants are citizens of the Republic with all the rights attaching to that status.
+But while the problems associated with colonial autonomy and trusteeship may have been the occasion for recognising an international status for dependent territories, distinct from that of the metropolitan territory, the principle itself cannot be confined to such cases.
+It would in any event be practically impossible to do so given the fine questions of degree which would arise if it were necessary to introduce a sub distinction between different dependent territories depending on the extent of their internal autonomy or the number or status of their indigenous inhabitants.
+Like many multilateral treaties, the Refugee Convention was so framed as to apply only to a States home country or metropolitan territory unless extended under article 40 to other territories for whose international relations the signatory state was responsible.
+In contrast with the position in some other contexts (see eg R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] AC 453, para 40, and R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69; [2016] AC 1355, para 186), the metropolitan and overseas territories of the United Kingdom for whose international relations it has responsibility are not in this context assimilated or treated as one undivided entity.
+Under article 40, any Contracting State is able to extend the Convention to all or any of the other territories for the international relations of which it is responsible, or to do so on terms specific to each territory.
+This is what happened when on 24 October 1956 the United Kingdom notified the Secretary General of the United Nations of its extension of the Convention to some 16 territories, including Cyprus.
+The notification was made subject to reservations, differing between some overseas territories and others, disapplying or varying particular terms of the Convention.
+By way of example, the right to engage in wage earning employment after completing three years residence in the country under article 17.2(a) was varied to four years in the case of 14 of the territories, but not in respect of Zanzibar and St Helena; the provisions of article 25.1 and 2 (relating to certain administrative assistance) were not accepted; and the provisions of articles 24.1(b), 24.2 and 25.3 (covering inter alia the provision of social security and certain administrative documentation) were made applicable only so far as the [local] law allows.
+In all these respects, the colonial clause gave effect to the individuality of each overseas territory, including by taking account of the views of any local administration.
+Article 40 suggests that for the purposes of the Refugee Convention the metropolitan territory and its dependent territories are to be treated as separate units.
+The different terms on which the Convention may extend to different territories could not be given effect, if all territories fell to be regarded as one.
+The Convention terminology varies between articles.
+Article 2 refers, for example, to a refugees duties to the country in which he finds himself, with the concomitant obligation to conform to its laws and regulations.
+The country in which he finds himself means whatever territory the refugee reaches.
+Article 4 provides that The Contracting States shall accord to refugees within their territories treatment at least as favourable as that accorded to their nationals with respect to freedom to practice their religion .
+The plural is used here because the article is dealing with all Contracting States territories.
+Where there are differences in the freedom to practise religion in different territories for the international relations of which a single State is responsible, the article will only work if applied on a territory by territory basis.
+A similar point applies to other articles requiring a State to accord to refugees in their territory the most favourable treatment accorded to nationals of a foreign country in the same circumstances or not less favourable [treatment] than that accorded to aliens generally in the same circumstances or the same treatment as nationals: see eg articles 15 and 17 to 24.
+Each territory for the international relations of which the State is responsible must in this context be treated separately.
+Article 26 is to be read in the same light.
+Headed Freedom of Movement, it reads: Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence [and] to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances.
+The French text confirms that the word and, inserted in brackets, should be read into the English version.
+Article 26 is directed to movement by a refugee within whichever territory they may be, whether it be the metropolitan territory, if that is where they are, or any overseas dependent territory, if they are there.
+The qualification relating to aliens in the same circumstances refers naturally to the possibility of restraints on movements internally, again within either the metropolitan territory or the overseas territory as the case may be.
+It cannot have been directed to conferring on a refugee a right to move between all or any of a States metropolitan and overseas territories, subject only to such constraints as might affect an alien.
+On this point, Foskett J (para 303) was in our opinion clearly correct.
+In the Court of Appeal, Irwin LJ (para 82) appears in contrast to have considered that article 26 applied without limitation across all of any States territories; and further that the limitation by reference to aliens could simply be avoided (or in effect eliminated) on the basis that a refugees circumstances differ from those of an alien.
+On both points, he was in our opinion mistaken.
+The term in the same circumstances is used in the Convention to indicate that a refugee should notionally be assimilated with a person who is not a refugee but seeks to enjoy the same right, except in the case of requirements which by their nature a refugee is incapable of fulfilling: article 6.
+Article 19 is instructive.
+It reads: LIBERAL PROFESSIONS 1.
+Each Contracting State shall accord to refugees lawfully staying in their territory who hold diplomas recognized by the competent authorities of that State, and who are desirous of practicing a liberal profession, treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances. 2.
+The Contracting States shall use their best endeavours consistently with their laws and constitutions to secure the settlement of such refugees in the territories, other than the metropolitan territory, for whose international relations they are responsible.
+Article 19(1) addresses the position of liberal professionals in the territory in which they are (which would in the circumstances in which the Convention was drafted commonly be a metropolitan European territory) while article 19(2) gives them the exceptional privilege of an undertaking that the relevant State will use its best endeavours to secure their settlement in another territory for whose international relations that State is responsible.
+Such a privilege makes no sense if everyone (not just liberal professionals) had the right to move anywhere in any of the territories for whose international relations a State was responsible and to which it had extended the Convention.
+Each such territory is, on the contrary, to be seen as a separate unit.
+It is noteworthy that the privilege is only to have the State use [its] best endeavours.
+Anything further would risk impinging on the local interests which constitute one reason for the separate treatment in article 40 of overseas territories for whose international relations a State is responsible.
+As already noted, the respondents also refer to and rely on articles 32 and 34, which provide EXPULSION 1.
+The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order Article 32 Article 34 NATURALIZATION The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees.
+They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.
+Article 32 gives a remedy against forced removal from the relevant territory (in this case the SBA), but says nothing about the right to move elsewhere.
+Although it may be relevant to other issues, it cannot be relied on in itself as providing a right to resettle in the UK.
+The same applies to article 34.
+It makes no specific reference to any territory, and there is room for argument as to how it should be interpreted in the particular circumstances of the SBAs (see, for example, A Grahl Madsen, Commentary on the Refugee Convention 1951 (1963, published 1997), Comment No 2 on article 34, on which Mr Husain relies).
+What however is clear is that article 34 does not seek to override the distinct treatment in the Convention of metropolitan and overseas territories.
+It provides no basis for submitting that a refugee is entitled to look to the State so far as possible to assimilate and naturalise himself or herself in whichever of those territories he or she may wish to settle in, irrespective of where he or she actually is or of the prevailing circumstances there.
+In our view, the Court of Appeal was clearly wrong if it intended, at para 81, to treat article 34 as giving any refugee in any territory anywhere, for whose international relations a State is responsible and to which the Convention has been extended, a right to have that State as far as possible facilitate his or her assimilation and naturalisation in any other of such territories.
+We conclude that the Convention does not by its terms entitle the respondents to be resettled in the United Kingdom.
+A States duties under the Convention to a refugee reaching a particular territory for whose international relations the State is responsible are in principle and in normal circumstances limited to providing and securing the refugees Convention rights in the context of that territory. (iii) Was the Memorandum of Understanding of 2003 a valid performance of the Convention obligations for those within its scope? In particular: (a) Was the United Kingdom in principle entitled to fulfil its obligations to refugees in the SBAs by arranging for support to be provided by the Republic of Cyprus? (b) If so, were the terms of the Memorandum of Understanding (including the 2003 Refugee Ordinance) a proper basis on which to do so?
+These issues do not arise directly for decision, since the 2003 Memorandum does not in terms apply to the respondents, and its validity as applied to those within its scope has not as far as we are aware been questioned hitherto.
+In any event, for the purposes of the domestic law of the SBAs, the 2003 Ordinance provides in terms that the rights under the Convention are to be treated as having been properly accorded, whether in the SBAs or the Republic: regulation 23(2).
+The validity of that regulation has not been questioned in these proceedings and would be a matter for the courts of the SBAs, not of the UK.
+The almost uniquely close practical links between the SBAs and the Republic are apparent from the complex treaty and regulatory framework which we have already summarised in paras 10 to 13 above.
+In summary, the international status of the SBAs and their relations with the Republic of Cyprus are governed by the Treaty concerning the Establishment of the Republic of Cyprus signed on 16 August 1960 between the United Kingdom, Greece, Turkey and Cyprus, as well as associated exchanges of notes.
+Annexes A and B to the Treaty of Establishment contain a broad range of mutual obligations, underlining the umbilical cooperation between the United Kingdom in respect of the SBAs and the Republic if the SBAs were to be viable.
+To take some examples, in addition to sovereignty over the SBAs, the United Kingdom was to have the use of and complete control over a number of Sites elsewhere in the Republic (Annex B, Part II, sections 1 and 2) and to police these Sites, but on the basis that persons arrested there would be handed over to the Republic save in cases where the United Kingdom had exclusive jurisdiction (Annex B, Part II, section 2, para 3).
+The Republic undertook to take necessary measures to ensure the security of the Sites, but on the basis that the United Kingdom authorities could take precautionary measures in the immediate and actual vicinity, in the event of an immediate threat, while the United Kingdom enjoyed a general right to take reasonable steps to prevent injury or damage to, or interference with, United Kingdom personnel, their dependents and United Kingdom property (Annex B, Part II, section 2, paras 4 and 5).
+Under Annex B, Part II, section 3, the authorities of the Republic undertook to arrange for, inter alia, such reasonable control over activities in the vicinity of United Kingdom installations and equipment in the Island of Cyprus as considered necessary by the United Kingdom to ensure their efficient operation and security (para 1); the authorities of the Republic undertook to search nearby villages where the United Kingdom authorities suspected that there might be apparatus likely to interfere with nearby installations in the Dhekelia SBA (para 2); and United Kingdom police and armed forces members were, if absolutely necessary, entitled to take into custody persons obstructing or attempting to obstruct the use or exercise of the facilities and rights accorded to the United Kingdom under the Treaty, or damaging, removing or attempting to damage United Kingdom property (para 3).
+The Annexes continue in a similar vein, with further mutual arrangements and obligations.
+The practical implications of the interdependence of the SBAs and the Republic of Cyprus are explained by Lisa Young, Policy Secretary of the SBA Administration, in her witness statement dated 15 January 2016: 10.
+In reality, the odd shaped boundaries of the SBAs and the existence of [Republic of Cyprus] enclaves in the [Eastern] SBA [Dhekelia] make little difference to the everyday life of people living in the SBAs.
+Although all people in the SBAs are subject to SBA law, the SBA courts and the jurisdiction of the SBA civil administration and SBA police, to many intents and purposes, Cypriots living in the SBAs live as if they were in the Republic.
+The declarations made on 18 August 1960 provide that the laws of the SBAs are as far as possible the same as the laws of the Republic and in practice this is largely the case.
+The SBAs have open borders and a customs union with the RoC. Residents move freely between the RoC and the SBAs, as provided in Appendix O. [T]he border is marked with inconspicuous pillars 11.
+RoC nationals and residents living in the SBAs can vote in the Republic.
+Under functions delegated in the 1960 arrangements, the RoC provides and pays for the utilities and social services (ie welfare, schools and health care, usually in the Republic) for RoC nationals living in the SBAs 13.
+Since 1960 the SBAs have operated and cooperated with the RoC under the principle of delegation, ie that the powers and duties are delegated by SBAs to officers of the RoC to carry out in the SBAs or in relation to the SBAs under the SBA law which is equivalent to the RoC law.
+The current legislation is the Delegation of Functions to the Republic Ordinance 2007. 14.
+The SBAA is a very small administration and the SBAs have limited resources because of their limited military purpose.
+The SBAs do not have the resources or authority to provide the normal civilian government and services of a modern welfare state to residents in the SBAs.
+The SBA does not provide any social services in the SBAs.
+Nor does the SBA provide any utilities to the general public living in the SBAs.
+Instead the relevant local RoC authorities provide public utilities (electricity, water, and civilian telecommunications services) to the Cypriot population living in the SBAs and MoD bases, and the MoD and/or SBAA make financial and practical contributions to RoC road construction.
+Most infrastructure is linked through the Republic.
+The SBAs have no international port of entry for members of the public.
+The public must use ports and airports in the RoC 15.
+Officials from the SBAA are in regular contact with their counterpart RoC officials at local government level.
+At the higher level, engagement with the RoC is normally through officials in the Ministry of Foreign Affairs, facilitated by the
+British High Commission in Nicosia
+It is correct that the Convention refers in many places to the appropriate standard of treatment of refugees in a States territory and the provision of facilities to refugees there.
+These references are commonly qualified by reference to the rights of or treatment afforded to nationals or aliens in a comparable position in the same territory.
+But nothing in the Convention, in our opinion, is expressly directed to a situation like that which exists on the island of Cyprus, and nothing in it is expressly inconsistent with the nature of the arrangements which the United Kingdom has made with the Republic of Cyprus.
+The Refugee Convention falls for interpretation in accordance with the principles laid down in the Vienna Convention on the law of treaties concluded on 23 May 1969 (the VCLT).
+Under article 31(1) of the VCLT: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
+Both international courts and tribunals will, in an appropriate case, interpret an international treaty not [as] static but as open to adapt to emerging norms of international law: Case concerning the Gabkovo Nagymaros Project [1997] ICJ Rep 7, para 112.
+They will endeavour to place a factual situation as it has developed since the inception of a treaty within the context of the preserved and developing treaty relationship, in order to achieve its object and purpose in so far as that is feasible: ibid, para 133.
+The former citation was picked up in the award dated 24 May 2005 of a distinguished Arbitral Tribunal chaired by Dame Rosalyn Higgins in the Arbitration regarding the Iron Rhine (Ijzeren Rijn) Railway between the Kingdom of Belgium and the Kingdom of the Netherlands (2005) RIAA, vol XXVII, p 35.
+The tribunal used it in support of the proposition that an evolutive interpretation, which would ensure an application of the treaty that would be effective in terms of its object and purpose, will be preferred to a strict application of the intertemporal rule: para 80.
+It also referred to the principle of effectiveness in support of a dynamic and evolutive approach to a treaty: para 84.
+In view of the above, and subject to issues about the precise interpretation of certain articles, the court finds it hard to see any objection in principle to some or even most or all of the supporting facilities required for refugees being provided by co operative and effective arrangements with the Republic.
+The more difficult issues are as to its application to those already accepted as lawful refugees (as discussed under the next group of issues).
+However, it was part of the respondents case before this court that the 2003 Memorandum was not itself fit for purpose, even in respect of those within its scope, so that the Secretary of State could not rely on its purported extension to the respondents.
+Since the court has reached a clear and unanimous view on that issue, it may help to narrow the remaining areas of dispute if we give our reasons at this stage.
+Mr Husain QC, who appeared for the respondents, submits that the 2003 Memorandum of Understanding is in terms unfit for its purpose even on the assumption that it is applied to the respondents, and that the provision of support to refugees in accordance with its terms would be a breach of the Refugee Convention.
+Mr Husains first point is that the Memorandum was not signed on behalf of the SBA Administration but on behalf of the Government of the United Kingdom, and that it contains undertakings by and in favour of the United Kingdom in respect of refugees in the SBAs.
+We see that as entirely natural and appropriate.
+The United Kingdom is responsible in international law for the international relations of the SBAs and for ensuring their compliance with the Refugee Convention.
+The Memorandum starts unsurprisingly by noting that the United Kingdom through the [SBA] Administration has the responsibility for illegal migrants and asylum seekers that enter the island of Cyprus by the [SBAs].
+Mr Husain next refers to paragraph 10 of the Memorandum, which provides that during their stay on the island of Cyprus persons recognised as refugees under the procedures determined in the Memorandum, will be treated so far as the authorities of the Republic of Cyprus are concerned, as if such persons had been recognised as refugees by the Republic of Cyprus .
+Mr Husain described this as very problematic and as constituting an obvious breach of the Convention, in that it relegated the respondents to the standard of treatment set by the Republic.
+However, the respondents have not suggested that the standard of treatment of refugees applied by the SBAs would be any higher than that applied by the Republic if the Memorandum had never been signed.
+Mr Husain next points to paragraph 12 of the Memorandum, which requires the United Kingdom to endeavour to resettle refugees within a year in a country willing to accept them, as indicating that it was not its intention or effect to achieve any durable long term settlement as refugees in the Republic.
+A similar point is taken in the most recent letter by the United Nations High Commissioner for Refugees, who reads paragraph 12 as limiting the United Kingdoms obligations to refugees to a year.
+That in our view misreads paragraph 12 and ignores paragraph 10.
+To suggest that an inter state undertaking to endeavour to resettle refugees within one year accords them rights which only extend for one year is simply wrong.
+Next, Mr Husain points to paragraph 19, which he submits gives the respondents no remedy for breach of the MoU.
+However, the Memorandum is an international agreement, which would not in itself be expected to provide any rights justiciable in the domestic law of either Cyprus or the SBAs.
+Such rights as there are in the domestic law of the SBAs are provided by the 2003 Ordinance. (We have no evidence of the status of the Memorandum in the domestic law of the Republic.)
+Finally, Mr Husain refers to paragraph 18, which he submits makes the Memorandum terminable even as regards refugees accepted as such under its terms.
+We consider it implausible that paragraph 18 would be interpreted as having this effect on the status of persons already accepted under paragraph 8 prior to any termination and so entitled, subject only to paragraph 13, to the treatment prescribed by paragraphs 8, 9 and 10.
+In any event, the United Kingdoms obligations to ensure compliance with the Refugee Convention would continue notwithstanding any such termination, and the United Kingdom would, in one way or another, have to ensure such compliance in that remote event.
+For these reasons, we reject the respondents submission that the 2003 Memorandum was not a proper basis for the provision of the support for refugees required by the Convention.
+Issues for future determination
+We turn to the issues on which we have found it necessary to ask for further submissions. (iv) Assuming the 2003 Memorandum was valid for those within its scope: (a) Was the United Kingdom entitled in 2005 to make similar arrangements for the provision by the Republic of facilities in respect of the respondents living in the SBAs without their consent, given their lawful and accepted presence as refugees in the SBAs?
+This question was not in terms identified by the agreed statement of facts and issues.
+However it emerged as an important part of the respondents response to the Secretary of States contention that it was permissible under the Convention to provide the respondents with facilities under arrangements made by the United Kingdom with the Republic of Cyprus.
+The point was put most clearly by Mr Husain QC in his written submissions (para 153): The first, and fundamental, objection to this response is that it is not open to a Contracting State to resettle lawfully present refugees in the territory of another Contracting State without their consent.
+There is no provision in the Refugee Convention that allows this.
+On the contrary, article 32 prevents a State from requiring a refugee to move to another State absent the refugees consent.
+Article 32 provides that, The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
+The Secretary of States case is thus that the United Kingdoms obligations under the Refugee Convention in respect of the respondents living in the SBAs can and should be fulfilled on the island by cooperation between the United Kingdom and the Republic of Cyprus.
+This, it is submitted, follows from the international arrangements whereby the SBAs were retained under United Kingdom sovereignty and from the realities on the ground.
+The respondents case, by comparison, is that the fulfilment of such obligations in this way is inconsistent with the terms of the Refugee Convention.
+The respondents argument that the provision of support through the Republic of Cyprus amounts to an expulsion was rejected by both Foskett J (paras 341 342) and the Court of Appeal (para 83).
+The Secretary of State now accepts that the respondents cannot, consistently with article 32 of the Convention, be required to live in the Republic of Cyprus, or anywhere else outside the SBAs against their will.
+There appears at one stage to have been an attempt by the SBA Administration to drive the respondents from the accommodation that they currently occupy with a view to making them leave for the Republic, but the attempt was abandoned and the Secretary of State has made it clear that the respondents are entitled to remain.
+It remains open to question whether that is sufficient if their only option there is and has been to remain in accommodation which is admittedly seriously deficient.
+However Mr Husains point is more fundamental.
+He refers to comments of Professor Hathaway in The Rights of Refugees under International Law (2005), pp 965 966 on the limited window of opportunity for any resettlement other than by consent.
+In the passage in question, Professor Hathaway discusses mandatory resettlement schemes, such as the so called Pacific Solution operated by the Australian government.
+He comments that such schemes can be operated without infringing the Convention only if the non consensual diversion into a resettlement scheme occurs before the refugee concerned is lawfully in a state party and hence entitled to the more elaborate protections against expulsion found in article 32.
+The window of opportunity, he says, is quite short: It ends once lawful presence (not lawful stay) is established, at which point the strict limitations on expulsion set by article 32 apply so as to make enforced resettlement unviable in most cases. (pp 965 966) That view appears consistent with the UNHCR Resettlement Handbook on which the Secretary of State relies, which indicates that resettlement can only be achieved by partnership, adding that of course, refugees are themselves partners in the process (Handbook pp 4 5 [MS5046]).
+Although this issue was raised in the written submissions it was not addressed in any detail in oral submissions.
+It appears potentially relevant to the legality of the approach adopted by the UK in 2005 and thereafter.
+There appear to the court to be potential issues as to what may constitute, first, expulsion, second, resettlement without consent and, third, transfer of responsibility; as to whether the Secretary of States proposed treatment of the respondents amounts to any of these; and as to whether the Secretary of States proposed treatment is in any event consistent with the Convention, having regard to the unique relationship between the SBAs and the Republic of Cyprus, but bearing in mind that the respondents do not consent to the proposed treatment.
+The quality of the accommodation presently available to the respondents is also an issue, and the court would invite submissions from both sides as to the significance of that in the context of the issues in this case, and as to any proposals which there may be to address it.
+The court accordingly now invites submissions on all these points, and in particular as to whether and how the Refugee Convention is capable of operating in the context of the SBAs, and whether it was and is in the circumstances open to the United Kingdom to satisfy its Convention obligations by arranging for facilities to be available through co operation with the Republic for refugees such as the respondents who do not give their consent that the United Kingdom satisfy its Convention obligations in this way. (iv)(b) If such transfer of responsibility was permissible, was the 2005 agreement with the Republic a legally effective means of doing so, having regard to its informality and the absence of incorporation into SBA law?
+As indicated above, the court does not accept Mr Husains primary case that the 2003 Memorandum was not fit for purpose even for those within its scope.
+However, he raised a logically separate point as to the informality and tenuous nature of any agreement to extend it to the respondents (Case paras 191ff).
+Again this point was not developed in any detail in oral submissions.
+The court notes in particular the formal and detailed nature of the 2003 Memorandum, which was also incorporated into SBA law by the Refugee Ordinance so creating enforceable rights and obligations under SBA law; and the lack of any equivalent legal formality in respect of the respondents.
+It invites submissions on the significance of this difference for the legal effectiveness of the 2005 agreement, and its consequences in the present proceedings. (iv)(c) Has the support of the Republic in accordance with the 2005 agreement been available in practice, and can it be assured in the future?
+Although this issue was not identified in the agreed statement of facts and issues, it was the subject of detailed and strongly conflicting factual submissions on both sides, and addressed also in the UNHCR correspondence.
+There was a disagreement as to whether it was an issue properly before the court, or, if not, how if at all it should be resolved, and in what forum.
+The court invites further submissions on this point. (v) If the 2005 agreement, for whatever reason, was not a legally effective means of discharging the United Kingdoms obligations to the respondents under the Convention, or if such support has not been available in practice, what are the consequences, in terms of rights or remedies potentially available in these proceedings, and how should the court give effect to them in its order?
+The Refugee Convention creates obligations in international law.
+The Convention is not part of the domestic law of the UK except to the limited extent noted earlier in this judgment.
+The written and oral submissions of the parties were largely directed to alleged breaches of obligations under the Convention.
+Mr Husains argument proceeded on what he took to be the uncontested assumption that any decision regarding the entry of the respondents to the United Kingdom must be consistent with the Refugee Convention (Case para 11, relying on Asylum and Immigration Appeals Act 1993 section 2, and R (European Roma Rights Centre) v Immigration Officer at Prague Airport (United Nations High Comr for Refugees intervening) [2005] 2 AC 1, para 41 per Lord Steyn).
+However, as noted at the beginning of this judgment, the court considers that the interaction of the Convention and domestic public law is a matter of some importance and difficulty, both in this case and more generally.
+In particular it seems necessary to consider the possible distinction between the direct application of section 2 of the 1993 Act, and the application of general public law principles (including the Launder principle: para 7 above).
+The court invites further submissions on those matters, and on the remedies potentially available in the present judicial review proceedings, including the matters which can be properly taken into account in the exercise of its discretion.
+Concluding comments
+It may of course be that, with the benefit of this interim judgment, the parties will be able reach agreement without further argument on the position of the respondents, or at least on some of the above questions.
+So far as they remain in dispute, we propose that the appeal should be relisted as soon as practically possible for the hearing of argument on the further issues identified above.
+The Court would hope that further evidence will not, at least at this stage, be required.
+However, if there are matters which one or other party contends cannot fairly be determined by this Court without further evidence, they should, before finalising their written cases for any further hearing, identify to each other any further evidence that they might wish to adduce on such issues, setting it out in draft supported by affidavit.
+The parties should in this connection be prepared to address the contents of the United Nations High Commissioners letter of 16 June 2017, the Secretary of States decision of 6 July 2017 and the letters of 7 July 2017 and 18 January 2018.
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+This is a case concerning the application of EU rules regarding food hygiene in relation to meat and poultry to certain chicken and pork products manufactured by the appellant, Newby Foods Ltd (Newby).
+Newby contends that these products should not be classified as mechanically separated meat (MSM) within point 1.14 of Annex I to EU regulation no (EC) 853/2004 of the European Parliament and of the Council laying down specific hygiene rules for food of animal origin (the Regulation).
+Factual and procedural background
+Nowadays the butchering of animal carcases in the food industry across the EU is carried out in many instances not by traditional hand butchering but by machines.
+These can do the job more economically, but they are less accurate than skilled human butchers.
+The machines often leave a significant amount of meat on the bone.
+For chickens, breast meat is usually removed by a somewhat different mechanical process, described below, leaving other meat on the carcase.
+With a view to making use of this residual meat on animal and poultry carcases, in the 1970s machines were developed that would crush the carcase bones and residual meat together under high pressure to produce, after filtering, what looks like a pure.
+The product of this high pressure process is one form of MSM for the purposes of the Regulation (high pressure MSM).
+Use of high pressure MSM for the production of food is subject to specific hygiene requirements set out in paragraph 4 of Chapter III of Section V of Annex III to the Regulation.
+Other processes have been developed to remove residual meat from the carcase bones under lower pressure, leaving the bones intact.
+The product of such low pressure processes is another form of MSM for the purposes of the Regulation (low pressure MSM).
+Use of this kind of MSM for the production of food is subject to different hygiene requirements, as set out in paragraph 3 of Chapter III of Section V of Annex III to the Regulation.
+The requirements in paragraph 3 apply to the production and use of MSM produced using techniques that do not alter the structure of the bones used in the production of MSM and the calcium content of which is not significantly higher than that of minced meat.
+Newby has developed a machine to remove residual meat from carcase bones.
+This has been used by Newby to process residual meat on beef, lamb and pork bones after the initial boning of the animal carcases (that is, after the mechanical butchery to remove the main meat from those animal carcases has taken place) and on chicken carcases after the breasts have first been removed by other mechanical processes.
+The Newby process has two stages.
+In the first stage, meat bearing bones are forced into contact with each other so that meat is removed from the bones by shearing forces.
+In a second stage the meat removed in this way is then passed through another machine, which is effectively a mincer, producing a product which looks like minced meat.
+This meat product was previously known in the United Kingdom as desinewed meat (DSM), and was regarded by many, including at one stage the Food Standards Agency (FSA), as distinct from MSM.
+DSM is not a category of product recognised in EU law.
+Under EU law important consequences flow from the classification of different products derived from meat.
+In particular, MSM cannot be counted towards the meat content of food and must be produced under stricter hygiene conditions, as laid down in Annex III to the Regulation.
+Special rules apply to the labelling of MSM under Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the member states relating to the labelling, presentation and advertising of foodstuffs (as amended by Commission Directive 2001/101/EC of 26 November 2001) (the Labelling Directive).
+Furthermore, the sale of MSM produced from lamb and beef bones is prohibited entirely in order to minimise the risk of the spread of Transmissible Spongiform Encephalopathies (TSE), by virtue of regulation (EC) 999/2001 of the European Parliament and of the Council of 22 May 2001 laying down rules for the prevention, control and eradication of certain transmissible encephalopathies (as amended by Commission regulation (EC) 722/2007 of 25 June 2007) (the TSE Regulation).
+The commercial value of MSM is less than other forms of fresh meat products, including minced meat.
+The issue before the court is how DSM produced using the Newby process should be classified within the scheme of this EU legislation, and in particular under the Regulation.
+The European Commission (the Commission) maintains that DSM should be classified as MSM.
+It criticised the stance originally taken by the FSA that DSM products should not be classified as MSM and threatened to take action against the United Kingdom if DSM continued to be produced and sold without regard to the restrictions imposed upon MSM.
+This action could have involved safeguard measures restricting the export of UK meat products to the rest of the EU.
+Notwithstanding the fact that it disagreed with the Commissions classification of DSM as MSM, on 4 April 2012 the FSA issued a moratorium to reflect the Commissions view regarding the effect of the relevant EU legislation (the moratorium).
+The moratorium had the result that DSM could no longer be produced from residual meat on beef and lamb bones and could only be produced from residual meat on chicken and pork bones if it were classified and labelled as MSM and not counted towards the meat content of products in which it was present.
+Newby brought judicial review proceedings challenging the moratorium, contending that it was based upon an error of law as to the definition of MSM in point 1.14 of Annex I to the Regulation (point 1.14).
+On 16 July 2013 Edwards Stuart J made a preliminary reference to the Court of Justice of the European Union (CJEU).
+He gave an extended judgment to explain the background to the case: [2013] EWHC 1966 (Admin) (the reference judgment).
+(Case C 453/13) judgment dated 16 October 2014 its ECLI:EU:C:2014:2297 (the CJEU judgment), the Tenth Chamber (Judges A Rosas, E Juhsz and D vby (Rapporteur)) of the CJEU made a ruling in the following terms: In Points 1.14 and 1.15 of Annex I to regulation (EC) no 853/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific hygiene rules for food of animal origin must be interpreted as meaning that the product obtained by the mechanical removal of meat from flesh bearing bones after boning or from poultry carcases must be classified as mechanically separated meat within the meaning of that point 1.14, since the process used results in a loss or modification of the muscle fibre structure which is greater than that which is strictly confined to the cutting point, irrespective of the fact that the technique used does not alter the structure of the bones used.
+Such a product cannot be classified as a meat preparation within the meaning of that point 1.15.
+After this ruling, Newby abandoned its challenge to the moratorium so far as concerned the prohibition against producing DSM from residual meat on lamb and beef carcases.
+It is relevant to note here that sheep and cows are ruminant animals, which is a significant category for the purposes of the TSE Regulation: see below.
+However, Newby continued its challenge to the moratorium as regards the requirement that DSM produced from residual meat on pork and chicken carcases should be treated as MSM and labelled as such.
+In the resumed proceedings before the national court, Newby filed further evidence in support of its case that the pork and chicken DSM it produces should not be categorised as MSM.
+In a judgment of 23 March 2016 [2016] EWHC 408 (Admin) (the main judgment) Edwards Stuart J concluded that the pork and chicken meat products resulting from the first stage of the Newby process are not MSM.
+On this view, under the EU legislation pork and chicken DSM could be counted towards the meat content of a product, did not have to be labelled as MSM and was not subject to the special hygiene regime in paragraph 3 of Chapter III of Section V of Annex III to the Regulation.
+The judge also found that such DSM was not a product derived from bone scrapings, which is another category of meat product under the EU legislation.
+The judge granted the FSA permission to appeal to the Court of Appeal on limited grounds.
+On the appeal, the FSA submitted that in the main judgment the judge had erred in departing from what the FSA argued was the clear ruling in the CJEU judgment that the pork and chicken products of Newbys process are, like the lamb and beef products of that process, properly to be classified as MSM within the meaning of point 1.14.
+The Court of Appeal [2017] EWCA Civ 400 allowed the appeal and dismissed the challenge to the moratorium.
+The Court of Appeal also found that Edwards Stuart J had been entitled to find that pork and chicken DSM is not a product derived from bone scrapings for the purposes of the EU legislation.
+Newby now appeals to this court in relation to the decision of the Court of Appeal regarding the proper interpretation of point 1.14.
+Regulation no 853/2004
+The recitals to the Regulation include the following: Whereas: (2) Certain foodstuffs may present specific hazards to human health, requiring the setting of specific hygiene rules.
+This is particularly the case for food of animal origin, in which microbiological and chemical hazards have frequently been reported. (9) The principal objectives of the recasting are to secure a high level of consumer protection with regard to food safety, in
+particular by making food business operators throughout the
+Article 2(3) of the Regulation provides that the definitions in Annex I to the Regulation shall apply.
+Paragraph 1 of Annex I is headed Meat and sets out various definitions relevant to that topic, including as follows: Community subject to the same rules, and to ensure the proper functioning of the internal market in products of animal origin, thus contributing to the achievement of the objectives of the common agricultural policy. (20) The definition of mechanically separated meat (MSM) should be a generic one covering all methods of mechanical separation.
+Rapid technological developments in this area mean that a flexible definition is appropriate.
+The technical requirements for MSM should differ, however, depending on a risk assessment of the product resulting from different methods. 1.1 Meat means edible parts of the animals referred to in points 1.2 to 1.8, including blood. [cows, sheep and pigs fall within the scope of point 1.2 and farmed chickens are poultry within the scope of point 1.3] 1.9 and dressing. 1.10 Fresh meat means meat that has not undergone any preserving process other than chilling, freezing or quick freezing, including meat that is vacuum wrapped or wrapped in a controlled atmosphere.
+Carcase means the body of an animal after slaughter 1.13 Minced meat means boned meat that has been minced into fragments and contains less than 1% salt. 1.14 Mechanically separated meat or MSM means the product obtained by removing meat from flesh bearing bones after boning or from poultry carcases, using mechanical means resulting in the loss or modification of the muscle fibre structure. 1.15 Meat preparations means fresh meat, including meat that has been reduced to fragments, which has had foodstuffs, seasonings or additives added to it or which has undergone processes insufficient to modify the internal muscle fibre structure of the meat and thus to eliminate the characteristics of fresh meat.
+In the EU legislation, no definition is given of boning in relation to cow, pig and sheep carcases.
+It is common ground that this term refers to the initial process of removal of meat from a carcase.
+As regards the carcases of cows, pigs and sheep, the definition of MSM in point 1.14 refers to removal of the meat left on the bones of those animals after the initial phase of butchering has taken place (typically, as described above, this initial butchering is by mechanical means): ie what I have called the residual meat.
+As regards the carcases of poultry, the definition of MSM in point 1.14 simply refers to removal of meat from those carcases (ie from the whole body of the bird: see point 1.9), without referring to any previous process of boning or removal of meat from the bird.
+The reference judgment
+In his judgment accompanying the reference to the CJEU, Edwards Stuart J set out relevant findings and expressed his provisional conclusions.
+He emphasised that the DSM produced by Newbys process was very different in texture and appearance from high pressure MSM, which is nothing like fresh meat.
+However, he was satisfied that the muscle fibre structure of that DSM underwent some modification during the process.
+Accordingly, therefore, as he put it, if it is sufficient for it to be classified as MSM that there has been any modification of the muscle fibre structure, then it is MSM (para 60, emphasis in original).
+The position of the FSA, reflecting the view of the Commission, was that any such modification was sufficient to mean that the residual meat removed by the Newby process is MSM.
+The submission of Newby was that something more, in the form of significant modification of the muscle fibre structure of the meat so removed, was required before the product of that process fell to be classified as MSM.
+Newby relied on analysis by microscopy by experts to maintain that the modification of muscle fibre in the residual meat removed by stage one of its process was not at a significant level such that it became MSM, and submitted that stage two of the process was simply equivalent to mincing of the meat so recovered.
+The judge referred, at para 61, to the wording of point 1.15 of Annex I to the Regulation.
+In his view the words and thus to in that provision indicated that there had to be a causal link between the loss or modification of the muscle fibre structure and the elimination of the characteristics of fresh meat.
+Furthermore, he did not consider that this wording could be construed to mean that any diminution, however minor, of those characteristics amounts to elimination of those characteristics.
+It seemed to the judge that there had to be at least a significant diminution in those characteristics before they could be said to be eliminated.
+He considered that in this context the relevant characteristics of fresh meat are its organoleptic properties including its taste, smell and texture.
+The judge also referred, at paras 62 63, to an alleged inconsistency in the approach to the application of the Regulation by the Commission and by the FSA in its moratorium, as regards the treatment of chicken breasts removed from poultry carcases.
+According to Newbys submission, as recorded by the judge, chicken breasts are commonly removed from the carcass by mechanical means and this inevitably causes some modification of the muscle fibre structure at the point where the meat is cut, which on the approach of the Commission and the FSA to point 1.14 would appear to mean that meat removed by that process would fall within the definition of MSM; yet according to the position of the Commission in its dealings with national authorities, chicken breast meat produced in this way was properly to be categorised as fresh meat for the purposes of the Regulation, and not as MSM.
+Newby cited this as an example of the absurd consequences that it maintained would follow if any damage to the muscle fibre structure were to lead to the meat product in question being classified as MSM.
+In the alternative, Newby submitted that it demonstrated an inconsistency of the application of the Regulation.
+The judge stated, at para 64, that he was satisfied on the evidence before him that the product of Newbys two stage process had not resulted in the elimination of the characteristics of fresh meat.
+Furthermore, he did not consider that there had been a sufficient diminution of those characteristics to prevent the product falling within the definition of meat preparations in point 1.15 of Annex I. Accordingly, the judges provisional conclusion was that the DSM produced by Newbys process did not fall to be classified as MSM.
+However, the position was not acte clair, so the judge made a preliminary reference to the CJEU, asking the following questions: i) Do the words loss or modification of the muscle fibre structure in point 1.14 of Annex I to regulation no 853/2004 mean any loss or modification of the muscle fibre structure that is visible using standard techniques of microscopy? ii) Can a meat product be classified as a meat preparation within point 1.15 of Annex I where there has been some loss or modification of its muscle fibre structure that is visible using standard techniques of microscopy? iii) If the answer to [the first question] is no and the answer to [the second question] is yes, is the degree of loss or modification of the muscle fibre structure that is sufficient to require each product to be classified as MSM within point 1.14 of Annex I the same as that required to eliminate the characteristics of fresh meat within point 1.15 of that annex? iv) To what extent must the characteristics of fresh meat have been diminished before they can be said to have been eliminated within the meaning of point 1.15? v) If the answer to [the first question] is no, but the answer to [the third question] is also no, what degree of modification to the muscle fibre structure is required in order for the product in question to be classified as MSM? vi) On the same assumption, what criteria should be used by national courts in determining whether or not the muscle fibre structure of the meat has been modified by that degree?
+The CJEU judgment
+The CJEU proceeded to a judgment without the benefit of an Advocate Generals opinion or, despite an application by Newby, an oral hearing.
+It delivered its judgment on 16 October 2014.
+The CJEU set out the following factual account, which is not controversial: 21.
+The referring court states that Newby Foods has developed a machine which is capable of removing the residual meat attached to the bones after the main part of the meat had been removed from them, without crushing those bones or liquefying the residual tissues.
+That machine, which operates essentially by means of shearing, can be distinguished from those operating at high pressure, which turn the residual tissues into a viscous paste.
+The resulting product, which, at the end of the first production stage, passes through a perforated plate with 10mm diameter apertures, is then processed in another machine which minces it by making it pass through a filter with 3mm diameter apertures.
+This product, which looks like ordinary minced meat, is marketed in the United Kingdom as desinewed meat.
+As regards its appearance, that product is clearly distinguishable from mechanically separated meat obtained at high pressure.
+According to the applicant in the main proceedings, no one would classify the product obtained by means of its machine as anything other than meat. 22.
+Also according to the applicant in the main proceedings, the desinewed meat which it produces contains only very rarely particles of bones, bone skin or bone marrow; however, the presence of occasional shards of bone cannot be excluded.
+In the proceedings before the CJEU, Newby was supported by the United Kingdom government (presenting the view of the FSA) in its submissions against the view of the Commission regarding the proper interpretation of point 1.14.
+The CJEU summarised the key submission of Newby, as supported by the FSA, at para 23 as follows: According to the applicant in the main proceedings and the FSA, by reference to the documents mentioned in paras 18 and 19 of the present judgment, the product obtained by means of that process does not correspond to the definition of mechanically separated meat within the meaning of regulation no 853/2004, in the absence of significant loss or modification of the muscle fibre structure, that is to say, in the absence of a change which is sufficient to eliminate the characteristics of fresh meat.
+That product should rather be classified as meat preparations within the meaning of point 1.15 of Annex I to that regulation.
+The CJEU reformulated the questions referred, at para 40: By its questions, which it is appropriate to examine together,
+the referring court is essentially asking whether points 1.14 and
+The CJEU addressed the reformulated questions in the following way at paras 41 to 43: 1.15 of Annex I to regulation no 853/2004, which contain the definitions of the concepts of mechanically separated meat and meat preparations respectively, must be interpreted as meaning that the product obtained by the mechanical removal of meat from flesh bearing bones after boning or from poultry carcases must be classified as mechanically separated meat within the meaning of that point 1.14 only where the process used results in a loss or modification of the muscle fibre structure which is significant, while the classification as meat preparations within the meaning of point 1.15 must be chosen where that loss or modification is not significant.
+Secondarily, in the event that that interpretation should prevail, the referring court seeks to ascertain what degree of modification or loss is required for that modification or loss to have to be regarded as significant and what process should be used in order to determine whether the degree thus required has been attained. 41.
+It must be stated at the outset that the definition of the concept of mechanically separated meat set out in point 1.14 of Annex I to regulation no 853/2004 is based on three cumulative criteria which must be read in conjunction with one another, namely (i) the use of bones from which the intact muscles have already been detached, or of poultry carcases, to which meat remains attached, (ii) the use of methods of mechanical separation to recover that meat, and (iii) the loss or modification of the muscle fibre structure of the meat thus recovered by reason of the use of those processes.
+In particular, that definition does not make any distinction as regards the degree of loss or modification of the muscle fibre structure, with the result that any loss or modification of that structure is taken into consideration within the context of that definition. 42.
+Consequently, any meat product which satisfies those three criteria must be classified as mechanically separated meat, irrespective of the degree of loss or modification of the muscle fibre structure, in so far as, by reason of the process used, that loss or modification is greater than that which is strictly confined to the cutting point. 43.
+In the case of use of mechanical processes, that third criterion allows mechanically separated meat within the meaning of point 1.14 of Annex I to regulation no 853/2004 to be distinguished from the product obtained by cutting intact muscles; the latter product does not show a more general loss or modification of the muscle fibre structure, but reveals a loss or modification of the muscle fibre structure which is strictly confined to the cutting point.
+Consequently, chicken breasts which are detached from the carcase of the animal by mechanically operated cutting rightly do not constitute mechanically separated meat.
+At paras 44 to 48 the CJEU stated that, as regards the products which meet the criteria for MSM, the Regulation did not make any distinction other than that stemming from paragraphs 3 and 4 of Chapter III of Section V of Annex III to the Regulation, which drew the distinction between low pressure MSM and high pressure MSM referred to above.
+At para 46, referring to low pressure MSM, the CJEU said: This type of product, which corresponds to mechanically separated meat obtained at low pressure, like the product at issue in the main proceedings, may, by way of exception, be used in certain meat preparations within the meaning of point 1.15 of Annex I to regulation no 853/2004, namely those intended to undergo heat treatment prior to consumption, whereas, in accordance with the definition given in point 1.15, meat preparations may in principle be obtained only from fresh meat, possibly minced into fragments that is to say, meat deriving from intact muscles to the exclusion of bone scrapings.
+The same type of product may also be used in all of the meat products within the meaning of point 7.1 of that annex.
+Having referred, by way of contrast, to high pressure MSM at para 47, the CJEU stated at para 48 that the distinction between different types of MSM made in paragraphs 3 and 4 of Chapter III of Section V of Annex III was reflected in the definition of MSM in point 1.14, with the word modification being intended to refer to MSM produced by use of methods of mechanical separation operating at low pressure.
+The CJEU went on: 49.
+That scheme, which consists in the arrangement of all mechanically separated meat into a single category subdivided into two subcategories of products which present different health risks and may consequently be intended for different uses, is explained in recital 20 in the preamble to regulation no 853/2004, which was also inserted at the same stage of the drafting of that Regulation.
+That recital announces, for that category of products, (i) a generic definition stated in flexible terms in such a way as to cover all methods of mechanical separation and to remain appropriate notwithstanding the rapid technological developments in that area, and (ii) technical requirements which differ depending on a risk assessment of the product resulting from different methods. 50.
+That recital, which clarifies perfectly the EU legislatures intentions, adequately demonstrates that the EU legislature took into consideration from the outset the possibility that new low pressure methods for the production of mechanically separated meat might be developed, such as, as the case may be, that used by the applicant in the main proceedings, assuming that that process demonstrates some innovation vis vis methods using techniques which do not alter the structure of the bones used, of which the EU legislature was aware at the time when regulation no 853/2004 was drafted.
+At paras 51 to 54 of its judgment the CJEU compared and contrasted the definition of MSM in point 1.14 and meat preparation in point 1.15 of Annex I to the Regulation.
+At para 52 it said that classification as meat preparations within point 1.15 of products which, like that at issue in the main proceedings, satisfy the criteria for [MSM] is excluded by the definition there set out.
+At para 53 it noted that the production of MSM involved neither of the processes referred to in point 1.15, namely the addition of foodstuffs, seasoning or additives or processing within the meaning of article 2(1)(m) of regulation no 852/2004; it stated that: on the contrary, a product such as that at issue in the main proceedings corresponds to the notion of an unprocessed product within the meaning of article 2(1)(n) of that Regulation.
+The CJEU further noted that the concept of meat preparations has a direct link not with MSM but, rather, with the concepts of fresh meat and minced meat which are, in principle, the only usable raw material, and secondly, with the concept of meat products within point 7.1 of Annex I to the Regulation.
+It then stated: 55.
+In addition, as the French Government suggests, a classification of products, such as that at issue in the main proceedings, as fresh meat within the meaning of point 1.10 of Annex I to regulation no 853/2004 is also excluded.
+Disregarding their other characteristics, such products consisting in fragmented meat would be capable of coming only within the concept of minced meat within the meaning of point 1.13 of that annex, a concept from which they must, however, be excluded by reason of point 1(c)(iv) of Chapter II of Section V of Annex III to that Regulation as products obtained from bone scrapings.
+At paras 56 and following the CJEU pointed out, further, that a classification of products as MSM had significant consequences with reference to the TSE Regulation and the Labelling Directive.
+As regards the TSE Regulation, at paras 57 to 59 the CJEU noted that according to that Regulation an industrial method which produces MSM within the meaning of point 1.14 cannot be used for the processing of bovine, ovine and caprine raw material; that Contrary to the view advanced in this regard by the applicant in the main proceedings, the application of that classification [ie as MSM] to products such as that at issue in the main proceedings in order to conclude that their production from raw material obtained from ruminants is prohibited follows from the implementation of the intention expressed in clear terms by the EU legislature within the context of the measures adopted with a view to combatting those diseases (para 58); that it is apparent from recital 11b to the TSE Regulation that the EU legislature had particularly in mind the fact that MSM could contain portions of bones and of the periosteum; and that it followed from the reference judgment that the same applies in the case of a product such as that produced by [Newby] (para 59).
+As regards the Labelling Directive, at paras 60 to 66 the CJEU noted that in accordance with Annex I to that directive the classification of a product as MSM within the meaning of point 1.14 implies a prohibition on labelling the product as meat rather than as MSM; an important objective of that directive is to ensure that labelling should not be such as could mislead a purchaser; the provisions of that directive and recitals 1 and 7 to Directive 2001/101 indicate that MSM, which differs significantly from meat as perceived by consumers, must be excluded from the scope of that concept for the purposes of labelling and presentation; those recitals express the findings that although MSM is technically fit for human consumption in so far as it is not obtained from ruminants, it is none the less a product of inferior quality because it consists of residual meat, fat and connective tissue which remain attached to the bones after the main part of the meat has been removed (para 63); and that to interpret the EU legislation so as to allow a product such as [Newby] produces, having an appearance comparable to minced meat, such that it could not easily be differentiated by consumers from minced meat derived from better quality meat, would defeat this intended objective of the Labelling Directive and another of its objectives, namely to prevent differences in the labelling of foodstuffs which might impede the free circulation of those products and lead to unequal conditions of competition.
+The CJEU expressed its conclusion at para 67 in terms reflected in the dispositif set out at para 9 above.
+The main judgment in the national court
+As set out above, when the case returned to the national court for further hearing, Newby dropped its challenge to the moratorium in so far as it covered the products of its process as applied to lamb and beef carcases.
+Newby maintained its challenge to the moratorium as regards its application to its process as applied to pork and chicken carcases.
+The further hearing took place on 9 and 10 February 2016.
+Newby filed additional evidence for this hearing.
+According to the evidence before the judge, the Newby process was applied to pork meat left on bones after the initial stage of butchery of the carcase (ie after the de boning phase) and to chicken meat left on chicken carcases after an initial stage of removal of the chicken breasts by a different mechanical process, involving scraping the chicken breasts cleanly from the breast bone.
+The further evidence about treatment of chicken carcases also indicated that before chicken breasts were removed in this way, the wishbone would be cut out of the meat.
+There was some evidence to suggest that certain methods of butchering pork carcases might leave some fully intact muscles in place after the initial phase of cutting meat from the carcase.
+In his main judgment, handed down on 23 March 2016, Edwards Stuart J correctly observed that it was clear from the judgment of the CJEU that it considered that the product of the first stage of Newbys process should be classified as MSM.
+However, Newby submitted that in the light of the CJEUs interpretation of point 1.14 this was not an available conclusion on the facts, and that it was for the national court to establish the facts and apply the guidance given by the CJEU to those facts.
+The judge rejected a submission on behalf of Newby that since what is fed into Newbys machine consists of bones with a fairly substantial amount of meat attached it does not consist of bones from which the intact muscles have been detached and accordingly did not satisfy the first criterion for MSM formulated by the CJEU at para 41 of its judgment.
+The judge observed that if this submission were correct even a high pressure process of crushing the meat and bones to a slurry would not be capable of producing MSM.
+Newby now accepts that the judge was right about this and that the first criterion for MSM set out by the CJEU is satisfied in relation to the products of its process.
+It was and is common ground that the second criterion for MSM, namely the use of mechanical separation to recover the residual meat left on the bones or poultry carcases, is satisfied in relation to the products of Newbys process.
+There is an extended discussion in the main judgment at paras 66 to 85 regarding the third criterion for MSM set out in para 41 of the judgment of the CJEU and the discussion at paras 42 and 43 concerning the cutting point.
+The judge correctly recognised that the CJEU in its judgment had interpreted the EU legislation with a view to achieving clarity in the application of point 1.14 rather than making it depend on case by case assessment by microscopic examination of muscle fibres, but said that by introducing the cutting point explanation in doing so, it may have thrown the baby out with the bath water.
+The CJEU had provided no elaboration of what was meant by the cutting point in the context of Newbys process.
+Cutting in this context must mean severance or separation (at para 66).
+The judge identified two principal possible readings of what the CJEU meant by cutting point: (i) on a narrower reading, it refers to the cutting of intact muscles, or (ii) on a more expansive reading, it refers to the points at which the meat has been severed or separated during the process of recovering it.
+The FSA, in line with the position of the Commission, submitted that the narrower reading at (i) is correct, and that since the meat recovered by the Newby process was taken after the original cutting of intact muscles during the initial de boning phase (in relation to pork) or after the initial phase of removal of chicken breasts in the case of chicken carcases, it followed that this recovered meat should be categorised as MSM.
+Newby, on the other hand, submitted that the more expansive reading at (ii) is correct; that microscopic examination of the strips of meat produced after the first stage of its process showed that the muscle fibre structure was only affected at the points where they had been removed from the bones or separated from other pieces of meat in the initial phase of removal of meat from a carcase or in the shearing involved in Newbys process; that therefore modification of the muscle fibre structure was strictly confined to the cutting points as so understood; and that accordingly this recovered meat did not meet the third criterion for MSM as laid down by the CJEU at para 41 of its judgment, as explained at paras 42 and 43.
+As the domestic court had further and better evidence regarding the state of the meat strips produced in the first stage of the Newby process than had been available to the CJEU, the domestic court should interpret the CJEUs judgment and apply it to the facts as appeared from that evidence.
+The judge accepted the submission by Newby, holding that the expansive reading of the notion of the cutting edge at (ii) above is correct.
+According to him, the cutting point of the muscle fibre produced by the first stage of the Newby process refers to every severed edge of the pieces of flesh that emerge from that process: para 85.
+Since, on the evidence before him, it was only at the cutting points in this sense that there was modification of the muscle fibre structure of the strips of meat produced at the first stage of the Newby process, this meat did not fall to be categorised as MSM.
+This appeared to mean that the product of this stage of the Newby process could be used in the second stage of that process to prepare what could be classified under the Regulation as minced meat and labelled and sold as such, although the judge expressed no final positive view to that effect: see paras 86 94.
+In the course of his discussion the judge found on the evidence that the product of the first stage of the Newby process could not be regarded as bone scrapings, contrary to the view of the CJEU at para 55 of its judgment.
+In due course, the Court of Appeal held that this was a legitimate finding which was open to him to make, and there is no cross appeal to this court regarding this point.
+In reaching his view regarding the interpretation of the notion of the cutting point, as used by the CJEU, the judge accepted the submission of Mr Mercer that he should have regard to article 11 of the Treaty on the Functioning of the European Union (TFEU).
+Article 11 TFEU provides that environmental protection requirements must be integrated into the definition and implementation of the EUs policies and activities, in particular with a view to promoting sustainable development.
+The judge agreed that he should interpret point 1.14 and paras 41 and 42 of the CJEUs judgment in a manner which promotes environmental protection rather than undermines it.
+According to the judge, on Newbys proposed interpretation of the CJEUs judgment there would be less wastage of meat suitable for human consumption and so fewer pigs would have to be raised and slaughtered.
+The judge also referred to the further evidence regarding removal of wishbones before chicken breasts were scraped from chicken carcases by mechanical processes, which Mr Mercer submitted meant that chicken breasts were not intact muscles at the point they were removed from chicken carcases: para 76.
+The judge said that he was not in a position to find whether or not Mr Mercers assertions about the process of removal of the wishbone were correct, but observed that it would be an absurdity if the prior removal of the wishbone section of the breast condemned the remainder of the breast to being classed as MSM, which would be avoided on his preferred reading of what the CJEU meant by the cutting edge: para 77.
+The judge did not make further mention here of the fact that, as noted by him in the reference judgment, the Commission took the view that mechanically removed chicken breasts do not fall to be categorised as MSM, but as fresh meat.
+As appears from correspondence in evidence, that does in fact continue to be the Commissions view.
+The judgment of the Court of Appeal
+The Court of Appeal allowed the appeal by the FSA in relation to the question whether the product of the first stage of Newbys process should be categorised as MSM.
+The court held that the judgment of the CJEU made it clear that it should be so categorised.
+The court therefore dismissed Newbys judicial review challenge to the moratorium, as it applied in relation to the application of its process to produce pork and chicken meat.
+The lead judgment was delivered by Lloyd Jones LJ (as he then was), with whom Beatson and Moylan LJJ agreed.
+Lloyd Jones LJ subjected paras 41 to 43 of the judgment of the CJEU to careful analysis.
+At para 41 the CJEU had given a clear answer adverse to Newbys principal submission on the reference.
+In his view, the qualification to the category of MSM as defined in point 1.14 introduced by the CJEU in paras 42 and 43 of its judgment by reference to the notion of the cutting point was directed to answering the argument of Newby that the mechanical removal of chicken breasts from a chicken carcase would necessarily involve a loss or modification of muscle fibre structure at the point where the breast was cut away with the result that, on the Commissions interpretation of point 1.14, all mechanically separated chicken breasts would have to be classified as MSM.
+On Lloyd Jones LJs reading of the CJEUs judgment, that qualification is limited to the cutting of intact muscles: para 39.
+He set out his reasoning as follows: 40.
+First, this is apparent from other passages in the judgment.
+At para 41 the courts paraphrase of [point] 1.14 emphasises in the case of the first criterion the use of bones from which the intact muscles have already been cut.
+At para 43 the court states in terms that the third criterion allows MSM to be distinguished from the product obtained by cutting intact muscles, explaining that the latter product reveals a loss or modification of the muscle fibre structure which is strictly confined to the cutting point.
+It then goes on to state in terms that chicken breasts detached from the carcase by mechanically operated cutting rightly do not constitute MSM.
+There is a further reference to the removal of intact muscles from bones at para 45.
+Secondly, if the cutting point exception were given the wide reading for which Newby contends it would exclude from classification as MSM products made by repeated mechanical cutting of meat left on bones or carcases from which intact muscles had previously been removed.
+The only loss or modification of the muscle fibre structure in such a case would be at the cutting points, however numerous they were.
+That would, in my view, defeat the purpose of the classification.
+Thirdly, the paragraphs of the judgment of the CJEU in which it applies the principle to the particular facts of this case demonstrate that the court cannot have intended the cutting point exception to bear such a wide meaning.
+I am, therefore, unable to agree with the judges broad 41. interpretation of the qualification as referring to every severed edge of the pieces of flesh that emerge from the Newby process.
+The qualification relates to cutting intact muscles from the animal.
+In the case of the Newby process, the product is not obtained by cutting intact muscles but by cutting or otherwise removing the meat left on the carcase after the intact muscle has been removed.
+Mechanical separation of residual meat from bones produces separation, shearing or cutting and hence modification to the muscle fibre structure at other points in addition to the point from which the intact muscles have been removed.
+The CJEU concluded as a matter of principle that meat which is mechanically separated from bones from which the intact muscles have already been detached shows a more general loss or modification of muscle fibre structure beyond the cutting point. 42.
+I have referred earlier to the fact that when the matter returned to the referring court it was submitted on behalf of Newby that since the bones fed into the machine for the first stage of the Newby process had substantial amounts of meat attached, the Newby process did not satisfy the first of the criteria identified by the CJEU ie it was said that it did not involve the use of bones from which the intact muscles have already been detached or poultry carcases, to which meat remains attached.
+The judge rejected that argument, correctly in my view, on the ground that if that were correct even a high pressure process of crushing such meat and bones to a slurry would be incapable of producing MSM.
+As Mr Coppel points out, it must follow that the product of Newbys process is not obtained by cutting intact muscles.
+The intact muscles have already been detached from the bones.
+In the case of chicken carcases the requirement that intact muscles have already been detached does not apply.
+It seems to me that this explains why the CJEU had to address the question of the cutting point in the context of the three limbs of the definition of MSM.
+I should add that to the extent that there may be an intact muscle left on a chicken carcase after removal of the breast or on a pork bone after the removal of the prime cuts of pork, it may well be that the process would involve the cutting of intact muscles within the qualification created by the CJEU.
+However, the product of the first stage of the Newby process would still in part comprise MSM and the entire product would have to be classified as MSM. 43.
+In coming to his conclusion the judge referred to the need to have regard to article 11 TFEU and to interpret point 1.14 of the Regulation and paras 41 and 42 of the judgment of the CJEU in a manner that promotes environmental protection rather than undermines it.
+He thought this a powerful point.
+He considered that to treat DSM produced by Newby as MSM was to waste a product that the informed observer would regard as meat, albeit not of the best quality.
+He stated that there was an environmental cost for treating this product as MSM.
+More pigs would have to be raised, slaughtered and butchered in order to make up the shortfall.
+He considered this contrary to the objective of promoting sustainable development.
+While this might be an appropriate factor to take into account in interpreting an EU measure in other circumstances, there is no scope for such an approach here.
+The CJEU was made aware of the argument that classifying Newbys products as MSM was a waste of good meat.
+Nevertheless it attached no weight to that consideration.
+The intention of the CJEU is clear.
+Moreover, the preamble to the Regulation (recital 9) makes clear that the principal objective of the classification is to secure a high level of consumer protection with regard to food safety.
+The reading favoured by the judge would undermine that objective.
+Lloyd Jones LJ recognised that in a case involving a reference to the CJEU on a point of interpretation of EU law it is for the national court to find the relevant facts and to apply the law as stated by the CJEU to those facts once found, as explained in Revenue and Customs Comrs v Aimia Coalition Loyalty UK Ltd [2013] UKSC 15; [2013] 2 CMLR 51, para 54 per Lord Reed.
+However, Lloyd Jones LJ did not accept that there had been any material change in the factual picture given by the further evidence adduced by Newby as compared to that available to the CJEU when it delivered its judgment; according to him, the statement of law set out in paras 41 to 43 of the judgment of the CJEU was conclusive of the dispute regarding the lawfulness of the FSAs moratorium and left no scope for argument as to the application of the law to the facts: para 50.
+Although Lloyd Jones LJ noted at para 30 the observations of Edwards Stuart J at paras 76 77 in the main judgment regarding Mr Mercers submissions about the significance of the cutting of wishbones from chicken carcases before the removal of chicken breasts, the Lord Justice did not revert to this point in his analysis when allowing the FSAs appeal.
+The appeal to this court
+For the appeal to the Supreme Court, the court gave permission for interventions by way of written submissions on behalf of the National Farmers Union and also on behalf of the Association of Independent Meat Suppliers, the British Meat Processors Association and the British Poultry Council.
+They all supported the case for Newby.
+In their application to intervene, dated 14 August 2018, the last three interveners also indicated that they wished to adduce further evidence, but did not file such evidence with their application.
+The question of the admission of such further evidence was postponed to the hearing of the appeal.
+The further evidence which was eventually filed and served comprised witness statements from a representative of each of those organisations, being a statement of Norman Bagley dated 5 January 2019, a statement of Nicholas Allen dated 4 January 2019 and a statement of Richard Griffiths dated 4 January 2019, respectively.
+The statements of Mr Bagley and Mr Allen provided additional information regarding pork production and current trends regarding automation in meat production and canvassed concerns of members of the meat industry regarding possible implications of the judgment of the Court of Appeal for that industry.
+The statement of Mr Griffiths provided an overview of poultry production and additional detail regarding the processes by which meat is removed from chicken carcases.
+The FSA objected to the admission of this further evidence so late in the day.
+The court read the new witness statements in advance of the hearing on a de bene esse basis and viewed certain video material referred to in the statements on the same basis.
+Having heard the application to adduce this new evidence and the opposing submissions, the court refuses permission to admit it in the appeal.
+It would be unfair to the FSA for the evidence to be admitted so late in the day.
+The way in which the Second to Fourth Interveners went about attempting to introduce the further evidence on the appeal to this court was very unsatisfactory.
+They should have made the fresh evidence available at the time of their application to intervene and to adduce further evidence (that is, in August 2018), in good time before the hearing and the filing of printed cases by the parties to the appeal.
+In that way the court could have determined well in advance of the preparation of printed cases by the parties to the appeal and well before the hearing whether fresh evidence was or was not to be admitted for consideration on the hearing of the appeal.
+Instead, the Second to Fourth Interveners only filed the fresh evidence after Newbys printed case was filed on 19 December 2018 and just days before the FSA filed its printed case on 9 January 2019.
+The FSA did not have a fair opportunity to take this fresh evidence into account in preparing its printed case, let alone to respond to it by seeking to file further evidence itself.
+Furthermore, now that the appeal has been heard, it is clear that it turns on issues of law and that the fresh evidence could have no relevant bearing on the outcome of the proceedings.
+I turn to the merits of the appeal.
+In my judgment the appeal should be dismissed, essentially for the reasons given by the Court of Appeal.
+The Court of Appeal has correctly understood the judgment of the CJEU and was right to adopt the narrow reading it did of the notion of the cutting point as used by the CJEU.
+On this appeal the focus has been on the proper characterisation of the products of the Newby process after stage one, which take the form of strips of meat removed from bones.
+It is now common ground that these products meet the first two criteria for categorisation of MSM for the purposes of point 1.14 as set out by the CJEU at para 41 of its judgment.
+The issue, therefore, is whether these products meet the third criterion (ie are characterised by the loss or modification of the muscle fibre structure of the meat recovered by use of methods of mechanical separation), in light of the qualification regarding that criterion introduced by the CJEU in paras 42 and 43.
+In my view, Newbys products satisfy the third criterion for classification as MSM, as the Court of Appeal correctly held.
+This is clear from the answer the CJEU gave at para 41 to the referred questions as summarised in para 40; from the language which it used in its discussion of the cutting point qualification and elsewhere in its judgment; from the clear and repeated statements it made that Newbys products should be categorised as MSM; and from the wider contextual factors derived from other parts of the EU legislative regime on which the CJEU relied as supporting its interpretation of point 1.14.
+To begin with, the way in which the CJEU formulated the first criterion for classification as MSM in para 41 of its judgment is significant: the use of bones from which the intact muscles have already been detached, or of poultry carcases, to which meat remains attached.
+This is the CJEUs paraphrase of the following words in point 1.14: removing meat from flesh bearing bones after boning or from poultry carcases.
+As regards animals other than poultry, according to point 1.14, the first criterion for MSM is only satisfied after the carcases have been through a process of boning.
+This is not a term used in relation to poultry carcases.
+In its formulation, however, the CJEU has given its interpretation of the concept of boning as the detachment of intact muscles from the carcase, which is to say in the initial act of removal of meat from the carcase.
+This is also reflected in its description in para 63 of the meat used for MSM as residual meat, fat and connective tissue which remain attached to the bones after the main part of the meat has been removed.
+This notion of residual meat after the main part of the meat has been removed from a carcase appears equally apt in respect of chicken carcases after the removal of the breasts by the usual simple mechanical processes used in the industry.
+The CJEUs formulation of the first criterion indicates that this is its view.
+It speaks of meat remaining attached to poultry carcases, rather than simply referring to poultry carcases, which would include all the meat on the carcase.
+In other words, by its formulation of the first criterion, the CJEU had already commenced the analysis, amplified in paras 42 and 43 of its judgment, by which it equates the initial removal of meat from animal carcases with the initial removal of chicken breasts from chicken carcases.
+Functionally, they are equivalent processes and the CJEU treats them as such.
+This reading of the CJEUs judgment is not compatible with Newbys submissions as to what the CJEU meant.
+In the last sentence of para 41 of its judgment, the CJEU gave a clear answer to the principal issue raised by the national court by its questions in the reference judgment.
+The concept of mechanically separated meat does not depend upon it being established that the process referred to in point 1.14 results in a loss or modification of the muscle fibre structure which is significant (see the terms of the question posed on the reference as formulated by the CJEU in para 40).
+This was, of course, an outright rejection of Newbys submission as to the proper interpretation of point 1.14.
+In para 42 the CJEU reiterated the point that the definition of MSM does not depend upon an analysis of the degree of loss or modification of the muscle fibre structure removed by the Newby process or equivalent processes.
+Instead, the CJEU held that a much clearer line of demarcation applies.
+Meat removed from a carcase will not be MSM if it is removed by mechanical means in the first phase of cutting meat from the whole carcase, but will generally be MSM if it is removed by mechanical means thereafter.
+For animals other than poultry, this is explained by the focus on the prior detachment of the intact muscles as the critical aspect of the first criterion for MSM in para 41, together with the CJEUs emphasis in para 42 that to escape categorisation as MSM any loss or modification of muscle fibre structure must be strictly confined to the cutting point.
+It is straightforward to know whether a carcase has gone through the initial phase of having meat cut from it, and there is no requirement for refined processes of microscopic investigation to be applied.
+In the first sentence of para 43 of its judgment, the CJEU emphasised that this is the proper interpretation of point 1.14.
+Again, it explains that on its interpretation of point 1.14 there is a clear distinction to be drawn between the product obtained by cutting intact muscles, which involves loss or modification of the muscle fibre structure which is strictly confined to the cutting point, and MSM.
+This is the context for the courts statement, Consequently, chicken breasts which are detached from the carcase of the animal by mechanically operated cutting rightly do not constitute mechanically separated meat.
+It is clear that initial removal of chicken breasts from chicken carcases is, in the CJEUs analysis, equated with the initial removal of meat by mechanically operated cutting in relation to other animal carcases.
+That is all that the CJEU meant to say.
+The point of this statement about chicken breasts in para 43 was, as the Court of Appeal rightly observed, to deal with the argument by Newby (referred to at para 37 of the CJEUs judgment) that the Commissions position in opposition to Newbys case was inconsistent, because the Commission treated chicken breasts removed by mechanical means as falling outside the definition of MSM.
+In giving the explanation in para 43, the CJEU was clearly not intending to undermine the clear and unequivocal answer it had given in para 41 to the referred questions, which answer has the consequence that the products of Newbys process have to be classified as MSM.
+Contrary to the view of Edwards Stuart J, the CJEU was not throwing the baby out with the bathwater by stating an exception to the clear general rule it had declared in para 41, which exception would have the effect of wholly undermining that rule.
+With respect to the judge, that is not a plausible interpretation of the CJEUs judgment.
+In describing what happens with the mechanical removal of chicken breasts the CJEU used the word cutting, whereas the later evidence adduced by Newby for the resumed proceedings in the national court shows that what happens is a combination of cutting at the edge of the chicken breasts before they are scraped as whole muscles from the breast bone.
+However, this is not a significant point.
+The CJEU used the term cutting because that was how Newby described the process in its submissions to the CJEU (as summarised at para 37 of the CJEUs judgment) and the way in which the national court described the process in the reference judgment at para 62.
+On any view the process for removal of chicken breasts by mechanical means is very different from Newbys process for removing residual meat from animal bones and chicken carcases, as the CJEU correctly understood.
+The fuller evidence now available regarding the details of the mechanical process for removal of chicken breasts does not undermine or otherwise call in question the interpretation of point 1.14 given by the CJEU, which is a matter of law.
+Mr Mercer pointed out that, according to the evidence, it occasionally happens that chicken carcases will be subjected to Newbys process without the breasts first being removed.
+However, this does not affect the legal analysis.
+Newbys process is different from, and very much less targeted than, the mechanical processes used to remove breasts from chicken carcases.
+It does not remove them as whole muscles, but subjects them to chopping through the use of shearing forces.
+Mr Mercer also pointed to evidence adduced in the resumed proceedings before the national court that, in the process of removing chicken breasts whole by mechanical means, the wishbone is usually cut out of the breast meat before such removal.
+He sought to suggest that this evidence undermined the CJEUs analysis in paras 41 to 43 of its judgment, since the breast muscle of a chicken will have been subjected to cutting before it is removed from the carcase by mechanical means and so should be classified as MSM according to the CJEUs interpretation of point 1.14.
+This would be contrary to the CJEUs statement in para 43 that chicken breasts removed by mechanical means do not constitute MSM.
+Again, however, this evidence regarding what happens in the case of mechanical removal of chicken breasts does not undermine or otherwise call in question the clear answer given by the CJEU as a matter of law in respect of the application of point 1.14 as regards the products of Newbys process.
+Furthermore, no legal dispute has arisen regarding the categorisation of chicken breasts removed by mechanical means.
+Neither the Commission nor the FSA has sought to categorise them as MSM.
+Mr Mercer says that there are ways of removing meat from a pork carcase at the initial stage which leave intact muscles on the carcase which are removed at a later stage.
+The Court of Appeal referred to this possibility at para 42 of its judgment.
+Once again, this does not affect the interpretation of point 1.14 given by the CJEU, which clearly does cover the products of Newbys process.
+It may be that the boning of a pork carcase, as that term is used in point 1.14, covers both these stages of removal of meat, so that the product of each stage does not fall to be categorised as MSM.
+But this court is not in a position to state any definitive view about that.
+As with the wishbone point, no relevant findings of fact, based on full evidence, have been made by the courts below and no legal proceedings have been issued in respect of this issue.
+I do not accept the submission of Mr Mercer that the reading of the CJEUs judgment as given by the Court of Appeal renders the third criterion in para 41 superfluous.
+On the contrary, the third criterion informs the first criterion, making it clear that it is not necessarily the case that all the meat on a poultry carcase which is removed by use of methods of mechanical separation has to be classified as MSM.
+It also informs the first criterion by giving some guidance regarding the concept of boning in point 1.14, thereby allowing for the possibility that the products of each of the two stages of removal of intact muscles from a pork carcase as referred to above might all fall outside the definition of MSM in that provision.
+As the CJEU said at para 41 of its judgment, the three cumulative criteria in point 1.14 must be read in conjunction with one other.
+In its judgment the CJEU made it explicit at many points that in its view on application of the definition in point 1.14 the products of Newbys process fall to be categorised as MSM.
+In its analysis the court made repeated direct references to Newbys process and the products of it, indicating explicitly that those products fell lIndustrie, within the category of low pressure MSM according to the courts interpretation of point 1.14: see paras 46, 50, 52, 53, 58, 59 and 64.
+The court could not have been clearer about this.
+Mr Mercer seeks to meet this aspect of the CJEUs judgment with the submission that the CJEUs role on a reference is to give an authoritative ruling on the interpretation of EU law, whereas it is the role of the national court to apply such a ruling to the facts of the case.
+Moreover, he points out that there are cases in which the CJEU has given a ruling on the interpretation of EU law and has also indicated how that law applies to the facts in a particular case, where the national court later reaches a different conclusion regarding the application of the law as interpreted by the CJEU to the facts of the case: the decision of this court in Revenue and Customs Comrs v Aimia Coalition Loyalty UK Ltd [2013] UKSC 15; [2013] 2 CMLR 51 is a prime example of this.
+Mr Mercer gave as another example the decision of the French Conseil dtat in De Groot en Slot Allium BV v Ministre de lconomie, des Finances et de judgment of 11 December 2006 ECLI:FR:CEASS:2006:23456020061211, following a judgment of the CJEU on a reference in those proceedings in (Case C 147/04) [2006] ECR I 261.
+So, contends Mr Mercer, it was open to Edwards Stuart J sitting in the national court when the proceedings resumed there after the reference, to examine the facts of the case and come to a conclusion opposite to that of the CJEU regarding the application of point 1.14 to Newbys products.
+The first part of Mr Mercers submission, as regards the division of responsibility between the CJEU and the national court making a reference under article 267 TFEU, is correct.
+It reflects a well established principle of EU law: see para 54 in the judgment of Lord Reed in the Aimia case.
+However, it is by no means unusual for the CJEU, consistently with that principle, to say itself how EU law should be applied to the facts of a particular case which is before it when it considers that the answer is clear.
+By way of example, Mr Coppel QC for the FSA referred us to Medical Imaging Systems GmbH (MIS) v Hauptzolloamt Mnchen (Case C 288/15) ECLI:EU:C:2016:424, at para 34; Kreyenhop & Kluge GmbH & Co KG v Hauptzollamt Hannover (Case C 471/17) ECLI:EU:C:2018:681, at para 47; Agenzia delle Dogane e dei Monopoli v Pilato SpA (Case C 445/17) ECLI:EU:C:2018:609, at para 41; and Mitnitsa Varna v SAKSA OOD (Case C 185/17) ECLI:EU:C:2018:108, at para 43; see also the discussion in M Broberg and N Fenger, Preliminary References to the European Court of Justice, 2nd ed (2014), at para 3.1 in Chapter 11.
+The CJEU proceeds in this way when it considers that the application of EU law, according to the interpretation the court has given it, is clear on the facts of the case.
+In the present case, the CJEUs conclusion that Newbys products fell to be categorised as MSM within point 1.14 simply reflected its ruling in para 41 of its judgment regarding the clarity of the test laid down in that provision, which had the obvious consequence that Newbys products fell to be so categorised according to that test.
+Indeed, the CJEU spelled this out at para 51 of its judgment.
+There is nothing untoward in the CJEU proceeding in this way and expressing its view regarding the application of EU law to the facts in an appropriate case.
+The Aimia case does not assist Mr Mercer.
+In that case, the CJEU gave an authoritative ruling regarding the proper interpretation of EU law and stated its conclusion regarding the application of that law to the facts of the case, as they had been set out in the reference.
+However, when the matter returned to the national court, that court was not bound by the statement of the facts as set out in the reference and instead made other, different findings of fact.
+The national court then applied the CJEUs authoritative guidance regarding EU law to the different facts of the case as determined by further examination of the relevant evidence at the national level, leading to a different conclusion as regards the application of EU law to the facts of the case: see the Aimia case at paras 46 52 and 56 per Lord Reed and at para 103 per Lord Hope.
+But in the present case there is no doubt that the CJEU understood very well the factual position as regards the operation of Newbys process and the products of it.
+This had all been clearly explained in the reference judgment and in the full evidence before the national court which was sent to the CJEU with the reference.
+The CJEU accurately summarised the position at paras 21 and 22 of its judgment.
+Even if there were any doubt regarding the CJEUs understanding of the different process by which breasts are removed from chicken carcases, that would not call into question the CJEUs understanding of the relevant facts in the case, which are those which concern Newbys process.
+Nor would that call into question the authoritative ruling of law by the CJEU regarding the proper interpretation of point 1.14 and the clear guidance it gave as to the application of that provision in relation to the products of Newbys process.
+Similar points fall to be made regarding the De Groot case on which Mr Mercer relied.
+That case concerned the compatibility with EU law of French legislation in respect of the labelling of shallots according to which only shallots derived in a traditional way from vegetative propagation by bulbs could be offered for sale under the name shallots, whereas varieties of shallots derived from seed as developed by De Groot and others could not be.
+The CJEU understood the reference to be founded on a common view between the parties in relation to the factual position regarding the differences between traditional shallots and seedling shallots, namely that those differences related essentially only to the method of reproduction.
+On that basis, the CJEU held that the French legislation was incompatible with EU law, as it would be sufficient to protect the interests of consumers if seedling shallots were marketed under the name shallots with a neutral additional statement that they were seedling shallots: paras 76 to 80 of the CJEUs judgment.
+However, as in the Aimia case, the Conseil dtat was not bound by that view of the facts and on further examination of the facts it found that there were other grounds for differentiation of the two sorts of shallot to do with their taste.
+The Conseil dtat therefore did not simply accept the conclusion of the CJEU, but carried out its own analysis of the position, applying the principles of EU law as laid down by the CJEU (in fact, as a result of that analysis, the Conseil dtat came to the same conclusion regarding the compatibility of the French legislation with EU law).
+For the reasons given above in relation to the Aimia case, this authority does not assist Mr Mercer.
+Returning to the judgment of CJEU in the present proceedings, the court gave further reasons at paras 56 and following for its interpretation of point 1.14 by reference to the general scheme of EU law in relation to the safety and labelling of meat products as set out in the TSE Regulation and in the Labelling Directive.
+This part of the reasoning of the court again makes it clear that the products of Newbys process fall to be categorised as MSM within the meaning of point 1.14.
+Mr Mercer had no good answer regarding the significance of these points for the proper interpretation of the CJEUs judgment in these proceedings.
+The definition of MSM in point 1.14 in Annex I to the Regulation is applicable both in respect of meat removed from the bones of ruminant animals such as cows and sheep and in respect of meat removed from the bones of non ruminant animals such as pigs and chickens.
+The definition in point 1.14 is also relevant for the purposes of the TSE Regulation, which together with the Regulation forms part of the EU regime governing the production of food from animals.
+The TSE Regulation lays down strict rules in relation to the production of meat from ruminant animals, to prevent the spread of transmissible spongiform encephalopathies associated with such animals.
+To that end, as noted above, it forbids the production of MSM from residual meat on the bones of such animals.
+The CJEU noted at para 22 of its judgment that the Newby process does not preclude the presence of occasional shards of bone in its products (this reflects para 23 of the reference judgment).
+On that basis, a reading of point 1.14 in the context of and having regard to the purpose of the TSE Regulation leads to the conclusion that Newbys products must be categorised as MSM under point 1.14: see paras 57 to 59 of the CJEUs judgment.
+That interpretation is necessary to secure the protection against the spread of transmissible spongiform encephalopathies associated with ruminant animals which is the primary object of the TSE Regulation.
+Since the meaning of point 1.14 is clear in relation to ruminant animals, it is also clear in relation to non ruminant animals.
+The CJEU also explained in paras 60 to 66 of its judgment why the same wide interpretation of point 1.14, covering the products of Newbys process, is necessary to secure primary objectives of the Labelling Directive.
+That is required so as to ensure that consumers are not misled as to the quality of products on sale and to ensure the free circulation of products in a context in which there is no unequal competition.
+This passage in the CJEUs judgment is, again, only consistent with the reading of the courts interpretation of point 1.14 given by the Court of Appeal.
+Finally, Mr Mercer sought to pray in aid article 11 TFEU in support of his proposed reading of the CJEUs judgment.
+I do not consider that this provision helps him.
+Article 11 TFEU sets out a general principle which informs the interpretation of EU legislation; it does not separately inform the reading to be given to a clear judgment of the CJEU.
+In the present case, the CJEU was well aware of the argument that a narrow interpretation of point 1.14 was appropriate so as to avoid unnecessary wastage of meat removed from animal carcases.
+The reference judgment referred to evidence that a large amount of meat, sometimes up to 80%, could be left on bones after the initial boning phase.
+The written observations of both the UK Government (representing the position of the FSA at that time) and Newby on the reference emphasised the desirability of an interpretation of point 1.14 which would avoid the wastage of meat suitable for human consumption which might occur if the products of Newbys process were categorised as MSM.
+There is no warrant for the suggestion that the CJEU overlooked this point when considering the proper interpretation of point 1.14.
+None of Newby, the UK Government, the Commission and the other member states which submitted written observations on the reference referred to article 11 TFEU, so it is not surprising that the CJEU did not find it necessary to refer to it.
+In any event, the CJEU has given a clear authoritative ruling regarding the proper interpretation of point 1.14 and reference to article 11 TFEU does not permit us to go behind that.
+I endorse what Lloyd Jones LJ said about article 11 TFEU in the Court of Appeal at para 43, set out above.
+This appeal turns on the proper interpretation of the CJEUs judgment, as it applies in relation to the products of Newbys process.
+On the proper interpretation of that judgment, the answer is clear that those products fall to be categorised as MSM within point 1.14.
+The position is acte clair and no further reference to the CJEU is required.
+For the reasons given above, I would dismiss this appeal.
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+The question at issue on this appeal is: in what circumstances is it permissible to sue an unnamed defendant? It arises in a rather special context in which the problem is not uncommon.
+On 26 May 2013 Ms Bianca Cameron was injured when her car collided with a Nissan Micra.
+It is common ground that the incident was due to the negligence of the driver of the Micra.
+The registration number of the Micra was recorded, but the driver made off without stopping or reporting the accident to the police and has not been heard of since.
+The registered keeper of the Micra was Mr Naveed Hussain, who was not the driver but has declined to identify the driver and has been convicted of failing to do so.
+The car was insured under a policy issued by Liverpool Victoria Insurance Co Ltd to a Mr Nissar Bahadur, whom the company believes to be a fictitious person.
+Neither Mr Hussain nor the driver was insured under the policy to drive the car.
+The statutory framework
+The United Kingdom was the first country in the world to introduce compulsory motor insurance.
+It originated with the Road Traffic Act 1930, which was part of a package of measures to protect accident victims, including the Third Parties (Rights Against Insurers) Act 1930.
+The latter Act entitled a person to claim directly against the insurer where an insured tortfeasor was insolvent.
+But it was shortly superseded as regards motor accidents by the Road Traffic Act 1934, which required motor insurers to satisfy any judgment against their insured and restricted the right of insurers to rely as against third parties on certain categories of policy exception or on the right of avoidance for non disclosure or misrepresentation.
+The statutory regime has become more elaborate and more comprehensive since 1934, but the basic framework has not changed.
+The current legislation is Part VI of the Road Traffic Act 1988.
+As originally enacted, it sought to give effect to the first three EEC Motor Insurance Directives, 72/166/EEC, 84/5/EEC and 90/232/EEC.
+It was subsequently amended by statutory instruments under the European Communities Act 1972 to reflect the terms of the Fourth, Fifth and Sixth Motor Insurance Directives 2000/26/EC, 2005/14/EC and 2009/103/EC.
+The object of the current legislation is to enable the victims of negligently caused road accidents to recover, if not from the tortfeasor then from his insurer or, failing that, from a fund operated by the motor insurance industry.
+Under section 143 of the Act of 1988 it is an offence to use or to cause or permit any other person to use a motor vehicle on a road or other public place unless there is in force a policy of insurance against third party risks in relation to the use of the vehicle by the particular driver (I disregard the statutory provision for the giving of security in lieu of insurance).
+Section 145 requires the policy to cover specified risks, including bodily injury and damage to property.
+Section 151(5) requires the insurer, subject to certain conditions, to satisfy any judgment falling within subsection (2).
+This means (omitting words irrelevant to this appeal) judgments relating to a liability with respect to any matter where liability with respect to that matter is required to be covered by a policy of insurance under section 145 of this Act and either (a) it is a liability covered by the terms of the policy or security , and the judgment is obtained against any person who is insured by the policy or it is a liability which would be so covered if (b) the policy insured all persons , and the judgment is obtained against any person other than one who is insured by the policy The effect of the latter subsection is that an insurer who has issued a policy in respect of the use of a vehicle is liable on a judgment, even where it was obtained against a person such as the driver of the Micra in this case who was not insured to drive it.
+The statutory liability of the insurer to satisfy judgments is subject to an exception under section 152 where it is entitled to avoid the policy for non disclosure or misrepresentation and has obtained a declaration to that effect in proceedings begun within a prescribed time period.
+But the operation of section 152 is currently under review in the light of recent decisions of the Court of Justice of the European Union.
+Under section 145(2), the policy must have been issued by an authorised insurer.
+This means a member of the Motor Insurers Bureau: see sections 95(2) and 145(5).
+The Bureau has an important place in the statutory scheme for protecting the victims of road accidents in the United Kingdom.
+Following a recommendation of the Cassell Committee, which reported in 1937 (Cmnd 5528/1937), the Bureau was created in 1946 to manage a fund for compensating victims of uninsured motorists.
+It is a private company owned and funded by all insurers authorised to write motor business in the United Kingdom.
+It has entered into agreements with the Secretary of State to compensate third party victims of road accidents who fall through the compulsory insurance net even under the enlarged coverage provided by section 151(2)(b).
+This means victims suffering personal injury or property damage caused by (i) vehicles in respect of which no policy of insurance has been issued; and (ii) drivers who cannot be traced.
+These categories are covered by two agreements with the Secretary of State, the Uninsured Drivers Agreement and the Untraced Drivers Agreement respectively.
+The relevant agreement covering Ms Camerons case was the 2003 Untraced Drivers Agreement.
+It applied to persons suffering death, bodily injury or property damage arising out of the use of a motor vehicle in cases where it is not possible to identify the person who is or appears to be liable: see clause 4(d).
+The measure of indemnity under this agreement is not always total.
+Under clause 10, there is a limit to the Bureaus liability for legal costs; and under clause 8 the indemnity for property damage is subject to a modest excess (at the relevant time 300) and a maximum limit corresponding to the minimum level of compulsory insurance (at the relevant time 1,000,000).
+The Bureau assumes liability under the Uninsured Drivers Agreement in cases where the insurer has a defence under the provisions governing avoided policies in section 152.
+But under article 75 of the Bureaus articles of association, each insurer binds itself to meet the Bureaus liability to satisfy a judgment in favour of the third party in such cases.
+In 2017, there were 17,700 concluded applications to the Motor Insurers Bureau by victims of untraced drivers.
+It is a fundamental feature of the statutory scheme of compulsory insurance in the United Kingdom that it confers on the victim of a road accident no direct right against an insurer in respect of the underlying liability of the driver.
+The only direct right against the insurer is the right to require it to satisfy a judgment against the driver, once the latters liability has been established in legal proceedings.
+This reflects a number of features of motor insurance in the United Kingdom which originated well before the relevant European legislation bound the United Kingdom, and which differentiate it from many continental systems.
+In the first place, policies of motor insurance in the United Kingdom normally cover drivers rather than vehicles.
+Section 151(2)(b) of the Act (quoted above) produces a close but not complete approximation to the continental position.
+Secondly, the rule of English insurance law is that an insurer is liable to no one but its insured, even when the risks insured include liabilities owed by the insured to third parties.
+Subject to limited statutory exceptions, the third party has no direct right against the insurer.
+Thirdly, even the insured cannot claim against his liability insurer unless and until his liability has been ascertained in legal proceedings or by agreement or admission.
+The Untraced Drivers Agreement assumes that judgment cannot be obtained against the driver if he cannot be identified, and therefore that no liability will attach to the insurer in that case.
+This is why it is accepted as a liability of the Motor Insurance Bureau.
+On the present appeal, Ms Cameron seeks to challenge that assumption.
+Such a challenge is usually unnecessary.
+It is cheaper and quicker to claim against the Bureau.
+But for reasons which remain unclear, in spite of her counsels attempt to explain them, Ms Cameron has elected not to do that.
+The proceedings
+Ms Cameron initially sued Mr Hussain for damages.
+The proceedings were then amended to add a claim against Liverpool Victoria Insurance for a declaration that it would be liable to meet any judgment obtained against Mr Hussain.
+The insurer served a defence which denied liability on the ground that there was no right to obtain a judgment against Mr Hussain, because there was no evidence that he was the driver at the relevant time.
+Ms Camerons response was to apply in the Liverpool Civil and Family Court to amend her claim form and particulars of claim so as to substitute for Mr Hussain the person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZJZ on 26 May 2013.
+District Judge Wright dismissed that application and entered summary judgment for the insurer.
+Judge Parker dismissed Ms Camerons appeal.
+But a further appeal to the Court of Appeal was allowed by a majority (Gloster and Lloyd Jones LJJ, Sir Ross Cranston dissenting): [2018] 1 WLR 657.
+Gloster LJ delivered the leading judgment.
+She held that the policy of the legislation was to ensure that the third party victims of negligent drivers received compensation from insurers whenever a policy had been issued in respect of the vehicle, irrespective of who the driver was.
+In her judgment, the court had a discretion to permit an unknown person to be sued whenever justice required it.
+Justice required it when the driver could not be identified, because otherwise it would not be possible to obtain a judgment which the issuer of a policy in respect of the car would be bound to satisfy.
+The majority considered it to be irrelevant that Ms Cameron had an alternative right against the Motor Insurance Bureau.
+She had a right against the driver and, upon getting judgment against him, against the insurer.
+In principle she was entitled to choose between remedies.
+Sir Ross Cranston dissented.
+He agreed that there was a discretion, but he did not consider that justice required an action to be allowed against the unknown driver when compensation was available from the Motor Insurance Bureau.
+Accordingly, the Court of Appeal (i) gave Ms Cameron permission to amend the claim form so as to sue the driver under the above description; (ii) directed under CPR 6.15 that service on the insurer should constitute service on the driver and that further service on the driver should be dispensed with; and (iii) gave judgment against the driver, as described, recording in their order that the insurer accepted that it was liable to satisfy that judgment.
+Suing unnamed persons
+Before the Common Law Procedure Act 1852 abolished the practice, it was common to constitute actions for trespass with fictional parties, generally John (or Jane) Doe or Roe, in order to avoid the restrictions imposed on possession proceedings by the forms of action.
+Placeholders such as these were also occasionally named as parties where the identity of the real party was unknown, a practice which subsists in the United States and Canada.
+After the disappearance of this practice in England, the extent of any right to sue unnamed persons was governed by rules of court.
+The basic rule before 1999 was laid down by the Court of Appeal in 1926 in Friern Barnet Urban District Council v Adams [1927] 2 Ch 25.
+The Friern Barnet District Council had a statutory right to recover the cost of making up Alexandra Road from the proprietors of the adjoining lands, but in the days before registered title reached Friern Barnet it had no way of discovering who they were.
+It therefore began proceedings against a named individual who was not concerned and the owners of certain lands adjoining Alexandra Road, whose names and addresses are not known to the plaintiffs.
+The judge struck out these words and declined to order substituted service by affixing copies of the writ to posts on the relevant land.
+The Court of Appeal dismissed the appeal.
+They held that there was no power to issue a writ in this form because the prescribed form of writ required it to be directed to C D of, etc in the County of (p 30).
+When the Civil Procedure Rules were introduced in 1999, the function of prescribing the manner in which proceedings should be commenced was taken over by CPR Part 7.
+The general rule remains that proceedings may not be brought against unnamed parties.
+This is implicit in the limited exceptions contemplated by the Rules.
+CPR 8.2A provides that a practice direction may set out circumstances in which a claim form may be issued under this Part without naming a defendant.
+It is envisaged that permission will be required, but that the notice of application for permission need not be served on any other person.
+However, no such practice direction has been made.
+The only express provision made for proceedings against an unnamed defendant, other than representative actions, is CPR 55.3(4), which permits a claim for possession of property to be brought against trespassers whose names are unknown.
+This is the successor to RSC Order 113, which was introduced in order to provide a means of obtaining injunctions against unidentifiable squatters, following the decision of Stamp J in In re Wykeham Terrace, Brighton, Sussex, Ex p Territorial Auxiliary and Volunteer Reserve Association for the South East [1971] Ch 204, that they could not be sued if they could not be named.
+In addition, there are specific statutory exceptions to broadly the same effect, such as the exception for proceedings for an injunction to restrain any actual or apprehended breach of planning controls under section 187B of the Town and Country Planning Act 1990.
+Section 187B(3) provides that rules of court may provide for such an injunction to be issued against a person whose identity is unknown.
+The Rules are supplemented by a practice direction which deals with the administrative steps involved.
+CPR 7A PD4.1 provides that a claim form must be headed with the title of the proceedings, which should state, among other things, the full name of each party.
+English judges have allowed some exceptions.
+They have permitted representative actions where the representative can be named but some or all of the class cannot.
+They have allowed actions and orders against unnamed wrongdoers where some of the wrongdoers were known so they could be sued both personally and as representing their unidentified associates.
+This technique has been used, for example, in actions against copyright pirates: see EMI Records Ltd v Kudhail [1985] FSR 35.
+But the possibility of a much wider jurisdiction was first opened up by the decision of Sir Andrew Morritt V C in Bloomsbury Publishing Group Plc v News Group Newspapers Ltd [2003] 1 WLR 1633.
+The claimant in that case was the publisher of the Harry Potter novels.
+Copies of the latest book in the series had been stolen from the printers before publication and offered to the press by unnamed persons.
+An injunction was granted in proceedings against the person or persons who have offered the publishers of The Sun, the Daily Mail and the Daily Mirror newspapers a copy of the book Harry Potter and the Order of the Phoenix by J K Rowling or any part thereof and the person or persons who has or have physical possession of a copy of the said book or any part thereof without the consent of the claimants.
+The real object of the injunction was to deter newspapers minded to publish parts of the text, who would expose themselves to proceedings for contempt of court by dealing with the thieves with notice of the order.
+The Vice Chancellor held that the decision in Friern Barnet Urban District Council v Adams had no application under the Civil Procedure Rules; that the decision of Stamp J in In re Wykeham Terrace was wrong; and that the words should state in CPR 7A PD4.1 were not mandatory, but imported a discretion to depart from the practice in appropriate cases.
+In his view, a person could be sued by a description, provided that the description was sufficiently certain as to identify both those who are included and those who are not (para 21).
+Since this decision, the jurisdiction has regularly been invoked.
+Judging by the reported cases, there has recently been a significant increase in its use.
+The main contexts for its exercise have been abuse of the internet, that powerful tool for anonymous wrongdoing; and trespasses and other torts committed by protesters, demonstrators and paparazzi.
+Cases in the former context include Brett Wilson LLP v Persons Unknown [2016] 4 WLR 69 and Smith v Unknown Defendant Pseudonym Likeicare [2016] EWHC 1775 (QB) (defamation); Middleton v Person Unknown [2016] EWHC 2354 (QB) (theft of information by hackers); PML v Persons Unknown [2018] EWHC 703 (QB) (hacking and blackmail); CMOC v Persons Unknown [2017] EWHC 3599 (Comm) (hacking and theft of funds).
+Cases decided in the second context include Hampshire Waste Services Ltd v Intending Trespassers upon Chineham Incinerator Site [2004] Env LR 9; Ineos Upstream Ltd v Persons Unknown [2017] EWHC 2945 (Ch); UK Oil and Gas Investments Plc v Persons Unknown [2018] EWHC 2253 (Ch).
+In some of these cases, proceedings against persons unknown were allowed in support of an application for a quia timet injunction, where the defendants could be identified only as those persons who might in future commit the relevant acts.
+The majority of the Court of Appeal followed this body of case law in deciding that an action was permissible against the unknown driver of the Micra who injured Ms Cameron.
+This is the first occasion on which the basis and extent of the jurisdiction has been considered by the Supreme Court or the House of Lords.
+The Civil Procedure Rules neither expressly authorise nor expressly prohibit exceptions to the general rule that actions against unnamed parties are permissible only against trespassers.
+The prescribed forms include a space in which to designate the claimant and the defendant, a format which is equally consistent with their being designated by name or by description.
+The only requirement for a name is contained in a practice direction.
+But unlike the Civil Procedure Rules, which are made under statutory powers, a practice direction is no more than guidance on matters of practice issued under the authority of the heads of division.
+As to those matters, it is binding on judges sitting in the jurisdiction with which it is concerned: Bovale Ltd v Secretary of State for Communities and Local Government [2009] 1 WLR 2274.
+But it has no statutory force, and cannot alter the general law.
+Whether or not the requirement of CPR 7A PD4.1 that the claim form should state the defendants full name admits of a discretion on the point, is not therefore the critical question.
+The critical question is what, as a matter of law, is the basis of the courts jurisdiction over parties, and in what (if any) circumstances can jurisdiction be exercised on that basis against persons who cannot be named.
+In approaching this question, it is necessary to distinguish between two kinds of case in which the defendant cannot be named, to which different considerations apply.
+The first category comprises anonymous defendants who are identifiable but whose names are unknown.
+Squatters occupying a property are, for example, identifiable by their location, although they cannot be named.
+The second category comprises defendants, such as most hit and run drivers, who are not only anonymous but cannot even be identified.
+The distinction is that in the first category the defendant is described in a way that makes it possible in principle to locate or communicate with him and to know without further inquiry whether he is the same as the person described in the claim form, whereas in the second category it is not.
+This appeal is primarily concerned with the issue or amendment of the claim form.
+It is not directly concerned with its service, which occurs under the rules up to four months after issue, subject to extension by order of the court.
+There is no doubt that a claim form may be issued against a named defendant, although it is not yet known where or how or indeed whether he can in practice be served.
+But the legitimacy of issuing or amending a claim form so as to sue an unnamed defendant can properly be tested by asking whether it is conceptually (not just practically) possible to serve it.
+The court generally acts in personam.
+Although an action is completely constituted on the issue of the claim form, for example for the purpose of stopping the running of a limitation period, the general rule is that service of originating process is the act by which the defendant is subjected to the courts jurisdiction: Barton v Wright Hassall LLP [2018] 1 WLR 1119, para 8.
+The court may grant interim relief before the proceedings have been served or even issued, but that is an emergency jurisdiction which is both provisional and strictly conditional.
+In Dresser UK Ltd v Falcongate Freight Management Ltd [1992] QB 502, the Court of Appeal held that, for the purposes of the Brussels Convention (the relevant provisions of the Brussels Regulation are different), an English court was seised of an action when the writ was served, not when it was issued.
+This was because of the legal status of an unserved writ in English law.
+Bingham LJ described that status, at p 523, as follows: it is in my judgment artificial, far fetched and wrong to hold that the English court is seised of proceedings, or that proceedings are decisively, conclusively, finally or definitively pending before it, upon mere issue of proceedings, when at that stage (1) the courts involvement has been confined to a ministerial act by a relatively junior administrative officer; (2) the plaintiff has an unfettered choice whether to pursue the action and serve the proceedings or not, being in breach of no rule or obligation if he chooses to let the writ expire unserved; (3) the plaintiffs claim may be framed in terms of the utmost generality; (4) the defendant is usually unaware of the issue of proceedings and, if unaware, is unable to call on the plaintiff to serve the writ or discontinue the action and unable to rely on the commencement of the action as a lis alibi pendens if proceedings are begun elsewhere; (5) the defendant is not obliged to respond to the plaintiffs claim in any way, and not entitled to do so save by calling on the plaintiff to serve or discontinue; (6) the court cannot exercise any powers which, on appropriate facts, it could not have exercised before issue; (7) the defendant has not become subject to the jurisdiction of the court.
+The case was decided under the Rules of the Supreme Court.
+But Bingham LJs statement would be equally true (mechanics and terminology apart) of an unserved claim form under the Civil Procedure Rules.
+An identifiable but anonymous defendant can be served with the claim form or other originating process, if necessary by alternative service under CPR 6.15.
+This is because it is possible to locate or communicate with the defendant and to identify him as the person described in the claim form.
+Thus, in proceedings against anonymous trespassers under CPR 55.3(4), service must be effected in accordance with CPR 55.6 by attaching copies of the documents to the main door or placing them in some other prominent place on the land where the trespassers are to be found, and posting them if practical through the letter box.
+In Brett Wilson LLP v Persons Unknown, supra, alternative service was effected by email to a website which had published defamatory matter, Warby J observing (para 11) that the relevant procedural safeguards must of course be applied.
+In Smith v Unknown Defendant Pseudonym Likeicare, supra, Green J made the same observation (para 11) in another case of internet defamation where service was effected in the same way.
+Where an interim injunction is granted and can be specifically enforced against some property or by notice to third parties who would necessarily be involved in any contempt, the process of enforcing it will sometimes be enough to bring the proceedings to the defendants attention.
+In Bloomsbury Publishing Group, for example, the unnamed defendants would have had to identify themselves as the persons in physical possession of copies of the book if they had sought to do the prohibited act, namely disclose it to people (such as newspapers) who had been notified of the injunction.
+The Court of Appeal has held that where proceedings were brought against unnamed persons and interim relief was granted to restrain specified acts, a person became both a defendant and a person to whom the injunction was addressed by doing one of those acts: South Cambridgeshire District Council v Gammell [2006] 1 WLR 658, para 32.
+In the case of anonymous but identifiable defendants, these procedures for service are now well established, and there is no reason to doubt their juridical basis.
+One does not, however, identify an unknown person simply by referring to something that he has done in the past.
+The person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZJZ on 26 May 2013, does not identify anyone.
+It does not enable one to know whether any particular person is the one referred to.
+Nor is there any specific interim relief such as an injunction which can be enforced in a way that will bring the proceedings to his attention.
+The impossibility of service in such a case is due not just to the fact that the defendant cannot be found but to the fact that it is not known who the defendant is.
+The problem is conceptual, and not just practical.
+It is true that the publicity attending the proceedings may sometimes make it possible to speculate that the wrongdoer knows about them.
+But service is an act of the court, or of the claimant acting under rules of court.
+It cannot be enough that the wrongdoer himself knows who he is.
+This is, in my view, a more serious problem than the courts, in their more recent decisions, have recognised.
+Justice in legal proceedings must be available to both sides.
+It is a fundamental principle of justice that a person cannot be made subject to the jurisdiction of the court without having such notice of the proceedings as will enable him to be heard.
+The principle is perhaps self evident.
+The clearest statements are to be found in the case law about the enforcement of foreign judgments at common law.
+The English courts will not enforce or recognise a foreign judgment, even if it has been given by a court of competent jurisdiction, if the judgment debtor had no sufficient notice of the proceedings.
+The reason is that such a judgment will have been obtained in breach of the rules of natural justice according to English notions.
+In his celebrated judgment in Jacobson v Frachon (1927) 138 LT 386, 392, Atkin LJ, after referring to the principles of natural justice put the point in this way: Those principles seem to me to involve this, first of all that the court being a court of competent jurisdiction, has given notice to the litigant that they are about to proceed to determine the rights between him and the other litigant; the other is that having given him that notice, it does afford him an opportunity of substantially presenting his case before the court.
+Lord Atkins principle is reflected in the statutory provisions for the recognition of foreign judgments in section 9(2)(c) of the Administration of Justice Act 1920 and section 8(1) and (2) of the Foreign Judgments (Reciprocal Enforcement) Act 1933, as well as in article 45(1)(b) of the Brussels I Regulation (Recast), Regulation (EU) No 1215/2012.
+It would be ironic if the English courts were to disregard in their own proceedings a principle which they regard as fundamental to natural justice as applied to the proceedings of others.
+In fact, the principle is equally central to domestic litigation procedure.
+Service of originating process was required by the practice of the common law courts long before statutory rules of procedure were introduced following the Judicature Acts of 1873 and 1875.
+The first edition of the Rules of the Supreme Court, which was promulgated in 1883, required personal service unless an order was made for what was then called substituted (now alternative) service.
+Subsequent editions of the rules allowed for certain other modes of service without a special order of the court, notably in the case of corporations, but every mode of service had the common object of bringing the proceedings to the attention of the defendant.
+In Porter v Freudenberg [1915] 1 KB 857 a specially constituted Court of Appeal, comprising the Lord Chief Justice, the Master of the Rolls and all five Lords Justices of the time, held that substituted service served the same function as personal service and therefore had to be such as could be expected to bring the proceedings to the defendants attention.
+The defendants in that case were enemy aliens resident in Germany during the First World War.
+Lord Reading CJ, delivering the judgment of the court, said at p 883: Once the conclusion is reached that the alien enemy can be sued, it follows that he can appear and be heard in his defence and may take all such steps as may be deemed necessary for the proper presentment of his defence.
+If he is brought at the suit of a party before a court of justice he must have the right of submitting his answer to the court.
+To deny him that right would be to deny him justice and would be quite contrary to the basic principles guiding the Kings courts in the administration of justice.
+It followed, as he went on to observe at pp 887 888, that the court must take into account the position of the defendant the alien enemy, who is, according to the fundamental principles of English law, entitled to effective notice of the proceedings against him.
+In order that substituted service may be permitted, it must be clearly shown that the plaintiff is in fact unable to effect personal service and that the writ is likely to reach the defendant or to come to his knowledge if the method of substituted service which is asked for by the plaintiff is adopted.
+The principle stated in Porter v Freudenberg was incorporated in the Rules of the Supreme Court in the revision of 1962 as RSC Order 67, rule 4(3).
+This provided: Substituted service of a document, in relation to which an order is made under this rule, is effected by taking such steps as the court may direct to bring the document to the notice of the person to be served.
+This provision subsequently became RSC Order 65, rule 4(3), and continued to appear in subsequent iterations of the Rules until they were superseded by the Civil Procedure Rules in 1999.
+The treatment of the principle in the more recent authorities is, unfortunately, neither consistent nor satisfactory.
+The history may be summarised as follows: (1) Murfin v Ashbridge [1941] 1 All ER 231 arose out of a road accident caused by the alleged negligence of a driver who was identified but could not be found.
+The case is authority for the proposition that while an insurer may be authorised by the policy to defend an action on behalf of his assured, he was not a party in that capacity and could not take any step in his own name.
+In the course of considering that point, Goddard LJ suggested at p 235 that possibly service on the driver might have been effected by substituted service on the insurers.
+Porter v Freudenberg was cited, but the point does not appear to have been argued. (2) In Gurtner v Circuit [1968] 2 QB 587, the driver alleged to have been responsible for a road accident had emigrated and could not be traced.
+He was thought to have been insured, but it was impossible to identify his insurer.
+The plaintiff was held not to be entitled to an order for substituted service on another insurer who had no relationship with the driver.
+Lord Denning MR thought (pp 596 597) that the affidavit in support of the application was defective because it failed to state that the writ, if served on a non insurer, was likely to reach the defendant.
+But he suggested that substituted service might have been effected on the real insurer if it had been identified.
+Diplock LJ thought (p 605) that it might have been effected on the Motor Insurers Bureau.
+Porter v Freudenberg was not cited, and the point does not appear to have been argued.
+In Clarke v Vedel [1979] RTR 26, the question was fully argued by (3) reference to all the relevant authorities in the context of the Road Traffic Acts.
+A person had stolen a motor cycle, collided with the plaintiffs, given a fictitious name and address and then disappeared.
+He was sued under the fictitious name he had given, and an application was made for substituted service on the Motor Insurance Bureau.
+The affidavit in support understandably failed to state that that mode of service could be expected to reach the driver.
+The Court of Appeal proceeded on the assumption (p 32) that there was no more reason to suppose that [the writ] will come to his notice or knowledge by being served on the Motor Insurance Bureau than by being served on any one else in the wide world.
+But it declined to treat the dicta in the above cases as stating the law.
+Stephenson LJ considered (p 36), on the strength of the dicta in Murfin v Ashbridge and Gurtner v Circuit, that there may be cases where a defendant, who cannot be traced and, therefore, is unlikely to be reached by any form of substituted service, can nevertheless be ordered to be served at the address of insurers or the Bureau in a road accident case.
+The existence of insurers and of the Bureau and of these various agreements does create a special position which enables a plaintiff to avoid the strictness of the general rule and obtain such an order for substituted service in some cases.
+But he held (p 37) that This is a case in which, on the face of it, substituted service under the rule is not permissible and the affidavit supporting the application for it is insufficient.
+This fictitious, or, at any rate, partly fictitious defendant cannot be served, so Mr Crowther is right in saying that he cannot be sued I do not think that Lord Denning MR or Diplock LJ or Salmon LJ or Goddard LJ had anything like the facts of this case in mind; and whatever the cases in which the exception to the general rule should be applied, in my judgment this is not one of them.
+In his concurring judgment, Roskill LJ (pp 38 39) approved the statement in the then current edition of the Supreme Court Practice that [t]he steps which the court may direct in making an order for substituted service must be taken to bring the document to the notice of the person to be served, citing Porter v Freudenberg in support of it. (4) 20 years later, another division of the Court of Appeal reached the opposite conclusion in Abbey National Plc v Frost (Solicitors Indemnity Fund Ltd intervening) [1999] 1 WLR 1080.
+The issue was the same, except that the defendant was a solicitor insured by the Solicitors Indemnity Fund pursuant to a scheme managed by the Law Society under the compulsory insurance provisions of the Solicitors Act 1974.
+The claimant sued his solicitor, who had absconded and could not be found.
+The Court of Appeal made an order for substituted service on the Fund.
+Nourse LJ (with whom Henry LJ and Robert Walker LJ agreed) distinguished Porter v Freudenberg on the ground that it was based on the practice of the masters of the Supreme Court recorded in the White Book at the time; and Clarke v Vedel on the ground that the policy of the statutory solicitors indemnity rules required a right of substituted service on an absconding solicitor.
+RSC Order 65, rule 4(3) was held to be purely directory and not to limit the discretion of the court as to whether or in what circumstances to order substituted service.
+Nourse LJ held that RSC Order 65 did not require that the order should be likely to result in the proceedings coming to the defendants attention.
+The current position is set out in Part 6 of the Civil Procedure Rules.
+CPR 6.3 provides for service by the court unless the claimant elects to effect service himself.
+It considerably broadens the permissible modes of service along lines recommended by Lord Woolfs reports on civil justice.
+But the object of all the permitted modes of service, as his final report made clear, was the same, namely to enable the court to be satisfied that the method used either had put the recipient in a position to ascertain its contents or was reasonably likely to enable him to do so within any relevant time period: see Access to Justice, Final Report (1996), Ch 12, para 25.
+CPR 6.15, which makes provision for alternative service, provides, so far as relevant: 6.15(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place. (2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.
+CPR 6.15 does not include the provision formerly at RSC Order 65, rule 4(3).
+But it treats alternative service as a mode of service, which is defined in the indicative glossary appended to the Civil Procedure Rules as steps required by rules of court to bring documents used in court proceedings to a persons attention.
+Moreover, sub paragraph (2) of the rule, which is in effect a form of retrospective alternative service, envisages in terms that the mode of service adopted will have had that effect.
+Applying CPR 6.15 in Abela v Baadarani [2013] 1 WLR 2043 Lord Clarke of Stone cum Ebony (with whom the rest of this court agreed) held (para 37) that the whole purpose of service is to inform the defendant of the contents of the claim form and the nature of the claimants case.
+The Court of Appeal appears to have had no regard to these principles in ordering alternative service of the insurer in the present case.
+In my opinion, subject to any statutory provision to the contrary, it is an essential requirement for any form of alternative service that the mode of service should be such as can reasonably be expected to bring the proceedings to the attention of the defendant.
+Porter v Freudenberg was not based on the niceties of practice in the masters corridor.
+It gave effect to a basic principle of natural justice which had been the foundation of English litigation procedure for centuries, and still is.
+So far as the Court of Appeal intended to state the law generally when it observed in Abbey National Plc v Frost that service need not be such as to bring the proceedings to the defendants attention, I consider that they were wrong.
+An alternative view of that case is that that observation was intended to apply only to claims under schemes such as the solicitors compulsory insurance scheme, where it was possible to discern a statutory policy that the public should be protected against defaulting solicitors.
+If so, the reasoning would apply equally to the compulsory insurance of motorists under the Road Traffic Acts, as indeed the Court of Appeal held in the present case.
+That would involve a narrower exception to the principle of natural justice to which I have referred, and I do not rule out the possibility that such an exception might be required by other statutory schemes.
+But I do not think that it can be justified in the case of the scheme presently before us.
+In the first place, the Road Traffic Act scheme is expressly based on the principle that as a general rule there is no direct liability on the insurer, except for its liability to meet a judgment against the motorist once it has been obtained.
+To that extent, Parliaments intention that the victims of negligent motorists should be compensated by the insurer is qualified.
+No doubt Parliament assumed, when qualifying it in this way, that other arrangements would be made which would fill the compensation gap, as indeed they have been.
+But those arrangements involve the provision of compensation not by the insurer but by the Motor Insurers Bureau.
+The availability of compensation from the Bureau makes it unnecessary to suppose that some way must be found of making the insurer liable for the underlying wrong when his liability is limited by statute to satisfying judgments.
+Secondly, ordinary service on the insurer would not constitute service on the driver, unless the insurer had contractual authority to accept service on the drivers behalf or to appoint solicitors to do so.
+Such provisions are common in liability policies.
+I am prepared to assume that the policy in this case conferred such authority on the insurer, although we have not been shown it.
+But it could only have conferred authority on behalf of the policy holder (if he existed), and it is agreed that the driver of the Micra was not the policy holder.
+Given its contingent liability under section 151 of the Road Traffic Act 1988, the insurer no doubt has a sufficient interest to have itself joined to the proceedings in its own right, if it wishes to be.
+That would authorise the insurer to make submissions in its own interest, including submissions to the effect that the driver was not liable.
+But it would not authorise it to conduct the defence on the drivers behalf.
+The driver, if sued in these proceedings, is entitled to be heard in his own right.
+Thirdly, it is plain that alternative service on the insurer could not be expected to reach the driver of the Micra.
+It would be tantamount to no service at all, and should not therefore have been ordered unless the circumstances were such that it would be appropriate to dispense with service altogether.
+There is a power under CPR 6.16 to dispense with service of a claim form in exceptional circumstances.
+It has been exercised on a number of occasions and considered on many more.
+In general, these have been cases in which the claimant has sought to invoke CPR 6.16 in order to escape the consequences of some procedural mishap in the course of attempting to serve the claim form by one of the specified methods, or to confer priority on the English court over another forum for the purpose of the Brussels Regulation, or to affect the operation of a relevant limitation period.
+In all of them, the defendant or his agents was in fact aware of the proceedings, generally because of a previous attempt by the claimant to serve them in a manner not authorised by the Rules.
+As Mummery LJ observed, delivering the judgment of the Court of Appeal in Anderton v Clwyd County Council (No 2) [2002] 1 WLR 3174, para 58, service was dispensed with because there was no point in requiring him to go through the motions of a second attempt to complete in law what he has already achieved in fact.
+In addition, I would accept that it may be appropriate to dispense with service, even where no attempt has been made to effect it in whatever manner, if the defendant has deliberately evaded service and cannot be reached by way of alternative service under CPR 6.15.
+This would include cases where the defendant is unidentifiable but has concealed his identity in order to evade service.
+However, a person cannot be said to evade service unless, at a minimum, he actually knows that proceedings have been or are likely to be brought against him.
+A court would have to be satisfied of that before it could dispense with service on that basis.
+An inference to that effect may be easier to draw in the case of hit and run drivers, because by statute drivers involved in road accidents causing personal injury or damage to another vehicle must either stop and, if required to do so by any person having reasonable grounds for so requiring, give his name and address and also the name and address of the owner and the identification marks of the vehicle, or else report the incident later.
+But the mere fact of breach of this duty will not necessarily be enough, for the driver may be unaware of his duty or of the personal injury or damage or of his potential liability.
+No submission was made to us that we should treat this as a case of evasion of service, and there are no findings which would enable us to do so.
+I would not wish arbitrarily to limit the discretion which CPR 6.16 confers on the court, but I find it hard to envisage any circumstances in which it could be right to dispense with service of the claim form in circumstances where there was no reason to believe that the defendant was aware that proceedings had been or were likely to be brought.
+That would expose him to a default judgment without having had the opportunity to be heard or otherwise to defend his interests.
+It is no answer to this difficulty to say that the defendant has no reason to care because the insurer is bound to satisfy a judgment against him.
+If, like the driver of the Micra, the motorist was not insured under the policy, he will be liable to indemnify the insurer under section 151(8) of the Road Traffic Act.
+It must be inherently improbable that he will ever be found or, if found, will be worth pursuing.
+But the court cannot deny him an opportunity to be heard simply because it thinks it inherently improbable that he would take advantage of it.
+I conclude that a person, such as the driver of the Micra in the present case, who is not just anonymous but cannot be identified with any particular person, cannot be sued under a pseudonym or description, unless the circumstances are such that the service of the claim form can be effected or properly dispensed with.
+The European law issue
+Mr Williams QC, who appeared for Ms Cameron, submitted that this result was inconsistent with the Sixth Motor Insurance Directive 2009/103/EC, and that the Road Traffic Act 1988 should be read down so as to conform with it.
+The submission was pressed with much elaboration, but it really boils down to two points.
+First, Mr Williams submits that the Directive requires a direct right against the insurer on the drivers underlying liability, and not simply a requirement to have the insurer satisfy a judgment against the driver.
+Secondly, he submits that recourse to the Motor Insurers Bureau is not treated by the Directive as an adequate substitute.
+Neither point appears to have been raised before the Court of Appeal, for there is no trace of them in the judgments.
+Before us, they emerged as Mr Williams main arguments.
+I propose, however, to deal with them quite shortly, because I think it clear that no point on the Directive arises.
+Article 3 of the Directive requires member states to ensure that civil liability in respect of the use of vehicles is covered by insurance, and article 9 lays down minimum amounts to be insured.
+Recital 30 states: The right to invoke the insurance contract and to claim against the insurance undertaking directly is of great importance for the protection of victims of motor vehicle accidents In order to facilitate an efficient and speedy settlement of claims and to avoid as far as possible costly legal proceedings, a right of direct action against the insurance undertaking covering the person responsible against civil liability should be extended to victims of any motor vehicle accident.
+Effect is given to this objective by article 18, which provides: Article 18 Direct Right of Action Member states shall ensure that any party injured as a result of an accident caused by a vehicle covered by insurance as referred to in article 3 enjoys a direct right of action against the insurance undertaking covering the person responsible against civil liability.
+I assume (without deciding) that article 18 requires a direct right of action against the insurer in respect of the underlying wrong of the person responsible and not just a liability to satisfy judgments entered against that person.
+It is a plausible construction in the light of the recital and the reference to Directive 2000/26/EC.
+However, Ms Cameron is not trying in these proceedings to assert a direct right against the insurer for the underlying wrong.
+Her claim against the insurer is for a declaration that it is liable to meet any judgment against the driver of the Micra.
+Her claim against the driver is for damages.
+But the right that she asserts against him on this appeal is a right to sue him without identifying him or observing rules of court designed to ensure that he is aware of the proceedings.
+Nothing in the Directive requires the United Kingdom to recognise a right of that kind.
+Indeed, it is questionable whether it would be consistent with article 47 of the Charter of Fundamental Rights regarding the fairness of legal proceedings.
+Mr Williams second point is in reality a reiteration of the first.
+It is based on article 10 of the Directive, which requires member states to ensure that there is a national bureau charged to pay compensation for damage to property or personal injuries caused by an unidentified vehicle or a vehicle for which the insurance obligation provided for in article 3 has not been satisfied.
+The submission is that the Directive requires that recourse to the Bureau, as the relevant body in the United Kingdom, should be unnecessary in a case like this, because the Micra was identified.
+It was only the driver who was unidentified.
+This is in effect a complaint that the indemnity available from the Motor Insurers Bureau under the Untraced Drivers Agreement, which extends to untraced drivers whether or not the vehicle is identified, is wider than the Directive requires.
+In reality, the complaint is not about the extent of the Bureaus coverage, which unquestionably extends to this case.
+The complaint is that it is the Bureau which is involved and not the insurer.
+But that is because the insurer is liable only to satisfy judgments, which is Mr Williams first point.
+It is true that the measure of the Bureaus indemnity is slightly smaller than that of the insurer (because of the excess for property damage and the limited provision for costs).
+But in that respect it is consistent with the Directive.
+Disposal
+I would allow the appeal, set aside the order of the Court of Appeal, and reinstate that of District Judge Wright.
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+This appeal raises an interesting but complicated question as to the meaning of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000 (SI 2000/1552) (the Transfer Order) made by the Secretary of State in exercise of powers conferred by section 405 and following of the Greater London Authority Act 1999 (the GLA Act).
+By that Act Parliament reorganised local government in London and created the Greater London Authority (GLA) under a directly elected Mayor of London.
+The GLA performs its strategic transport and road traffic functions through the appellant Transport for London (TfL), which became the highway authority for those public highways in London designated as GLA roads, in the GLA Roads Designation Order 2000 (SI 2000/1117) (the Designation Order).
+Previously those highways had been the responsibility of individual London borough councils as local highway authorities including, for their respective areas, the respondents London Borough of Southwark and the City of London Corporation (the Councils).
+As its name implies, the Transfer Order provided for the transfer from local highway authorities to TfL of specified property and liabilities relating to highways designated as GLA roads by the Designation Order.
+The present dispute concerns, in particular, the meaning of the following provisions in article 2 of the Transfer Order (article 2): (1) Subject to paragraph (2) and article 4 below, on the operative date there are hereby transferred to Transport for London in relation to each GLA road the highway, in so far as it is vested in the former (a) highway authority; (b) on the designation date, it was vested the property mentioned paragraph (3) in so far as, (i) in the former highway authority for the purposes of their highway functions in relation to the GLA road (3) The property referred to in paragraph (1)(b) is (a) land, other than land (i) vested in the former highway authority for the purpose of being used for the storage of material required wholly or mainly for the maintenance and improvement of other highways; (ii) where the former highway authority is a relevant authority, held by that authority for the improvement or development of frontages to the highway, or of land adjoining or adjacent to the highway; .
+The dispute arose, and was directed to be determined as a preliminary issue, in an arbitration held under article 8 of the Transfer Order.
+At its heart, the appeal is about what is transferred by the words in paragraph (1)(a) of article 2: the highway, in so far as it is vested in the former highway authority.
+The question is whether that phrase captures everything which the former authority owns in the vertical plane bounded by the road, which may include all the airspace above and all the subsoil below the surface of the road, or only that part which is necessary for the operation, maintenance and repair of the road, ie a slice of the airspace and a slice of the underlying subsoil.
+The Secretary of States drafting team adopted, as their model for article 2, the content of section 265 of the Highways Act 1980 (section 265) which provides for the transfer of property and liabilities upon a highway becoming, or ceasing to be, a trunk road.
+Although not part of that Act, article 2 therefore forms part, at least by inheritance, of what counsel fairly described as the rich tapestry of the highways legislation in England and Wales.
+In Farrell v Alexander [1977] AC 59, at 73, Lord Wilberforce said: self contained statutes, whether consolidating previous law, or so doing with amendments, should be interpreted, if reasonably possible, without recourse to antecedents, and that the recourse should only be had when there is a real and substantial difficulty or ambiguity which classical methods of construction cannot resolve.
+Goodes v East Sussex County Council [2000] 1 WLR 1356 was a case about the Highways Act 1980, and its predecessor, the Highways Act 1959.
+After citing Lord Wilberforces well known dictum, Lord Hoffmann continued, at p 1360H: It seems to me quite impossible, in construing the Act of 1959, to shut ones eyes to the fact that it was not a code which sprang fully formed from the legislative head but was built upon centuries of highway law.
+The provisions of the Act itself invited reference to the earlier law and in some cases were unintelligible without them.
+See also, to much the same effect: Cusack v Harrow London Borough Council [2013] UKSC 40; [2013] 1 WLR 2022, per Lord Carnwath at para 19 and per Lord Neuberger at paras 64 65.
+Lord Wilberforces wise words have lost none of their force, in an era which has seen an exponential increase in the complexity of legislation.
+It is hard enough on the law abiding public that legislation is often unintelligible without the assistance of skilled lawyers.
+It is even worse if its meaning requires, in addition, the assistance of a legal historian.
+None the less, this is a case, as were the Goodes and Cusack cases, where neither the analysis of the dispute as to statutory meaning, nor the appropriate solution to it, can be undertaken without substantial recourse to the history of English and Welsh highways law and in particular legislation.
+Even the innocent sounding word highway is itself capable of having a range of different meanings, dependent upon the context in which it is used.
+The Statutory History
+The word highway has no single meaning in the law but, in non technical language, it is a way over which the public have rights of passage, whether on foot, on horseback or in (or on) vehicles.
+At common law, at least prior to 1835, there was, generally speaking, no necessary connection between those responsible for the maintenance and repair of a public highway and those with a proprietary interest in the land over which it ran.
+Prima facie the inhabitants of the parish through which the highway ran would be responsible for its repair, but they were not a corporate body suitable to hold ownership rights in relation to it: see Sauvain on Highway Law (5th ed, 2013) at para 3 05.
+As he puts it: It was left to statute, therefore, to create an interest in land which was to be held by the body on whom the duty to repair had fallen.
+Parliament began this task, in a rudimentary way, in section 41 of the Highways Act 1835, continued it in section 68 of the Public Health Act 1848, section 96 of the Metropolis Management Act 1855 and section 149 of the Public Health Act 1875.
+They all provided for a form of automatic vesting of a property interest in the land over which the highway ran in favour of the body responsible for its maintenance and repair.
+A basic feature of the conveyance or transfer of freehold land by reference to an identified surface area is that, unless the context or the language of the grant otherwise requires or provides (eg by a reservation of minerals), its effect is to vest in the transferee not only the surface of the ground, but the subsoil down (at least in theory) to the centre of the earth and the air space up (at least in theory) into the heavens.
+Viewed in the vertical plane, the transferee acquires ownership not only of the slice on the surface but of the whole of the space above it, and the ground below it.
+But a series of 19th century cases beginning with Coverdale v Charlton (1878) 4 QBD 104 and culminating in the decision of the House of Lords in Tunbridge Wells Corpn v Baird [1896] AC 434, established that the successive statutory provisions for the automatic vesting of proprietary interests in highways in the bodies responsible for their maintenance and repair operated in a much more limited way than would a simple conveyance or transfer of the freehold.
+First, it was a determinable, rather than absolute, fee simple, which would end automatically if the body responsible for its repair ceased to be so responsible (eg if the road ceased to be a public highway): see Rolls v Vestry of St George the Martyr, Southwark (1880) 14 Ch D 785.
+Secondly it was inalienable, for so long as that responsibility lasted.
+Thirdly, and most importantly for present purposes, statutory vesting conferred ownership only of that slice of the land over which the highway ran, viewed in the vertical plane, as was necessary for its ordinary use, including its repair and maintenance.
+Following the example of counsel, I shall call this the Baird principle.
+That slice of the vertical plane included, of course, the surface of the road over which the public had highway rights, the subsoil immediately beneath it, to a depth sufficient to provide for its support and drainage, and a modest slice of the airspace above it sufficient to enable the public to use and enjoy it, and the responsible authority to maintain and repair it, and to supervise its safe operation.
+That lower slice was famously labelled the top two spits in Tithe Redemption Commission v Runcorn Urban District Council [1954] 1 Ch 383 at 407.
+A spit is a spades depth.
+Although colourful, that phrase says nothing about the necessary airspace above the surface.
+Again following counsels example, I prefer the phrase zone of ordinary use.
+It is common ground that the zone of ordinary use is a flexible concept, the application of which may lead to different depths of subsoil and heights of airspace being vested in a highway authority, both as between different highways and even, over time, as affects a particular highway, according to differences or changes in the nature and intensity of its public use.
+A simple footpath or bridleway might only require shallow foundations, and airspace of up to about ten feet, to accommodate someone riding a horse.
+By contrast a busy London street might require deep foundations to support intensive use, and airspace sufficient to accommodate double decker buses, and even the overhead electric power cables needed, in the past, by trolley buses and, now, by urban trams.
+The Baird principle was developed so as to limit, in the vertical plane, the defeasible freehold interest automatically vested in the body responsible for the repair of a highway.
+This was because, in a series of leading judgments, the court regarded this statutory vesting as a form of expropriation of private property rights without compensation, and was therefore concerned to limit its effect strictly to that which was necessary to achieve the Parliamentary objective, that is conferring upon highway authorities sufficient property to enable them to perform their statutory duties of the repair, maintenance and operation of highways.
+Thus for example, in Coverdale v Charlton, Bramwell LJ said (at p 116) that it would be monstrous if the highway authority thereby acquired rights in valuable minerals below the surface.
+In Rolls v Vestry of St George the Martyr, Southwark James LJ in a celebrated passage at p 796 said, of section 149 of the Public Health Act 1875: It seems to me very reasonable then to interpret this enactment in a way which gives everything that is wanted to be given to the public authority for the protection of the public rights without any unnecessary violation of the rights of the landowner.
+In Tunbridge Wells Corpn v Baird Lord Halsbury LC said, after approving every word of what James LJ had said in the passage quoted above: That the street should be vested in them as well as under their control, may be, I suppose, explained by the idea that as James LJ points out, it was necessary to give, in a certain sense, a right of property in order to give efficient control over the street.
+It was thought convenient, I presume, that there should be something more than a mere easement conferred upon the local authority, so that the complete vindication of the rights of the public should be preserved by the local authority; and, therefore, there was given to them an actual property in the street and in the materials thereof.
+It is intelligible enough that Parliament should have vested the street qua street and, indeed, so much of the actual soil of the street as might be necessary for the purpose of preserving and maintaining and using it as a street.
+At p 442 Lord Herschell said: My Lords, it seems to me that the vesting of the street vests in the urban authority such property and such property only as is necessary for the control, protection and maintenance of the street as a highway for public use.
+The modern successor currently in force, to the 19th century legislation to which those authorities refer, is section 263 of the Highways Act 1980.
+It provides, so far as is relevant, as follows: Vesting of highways maintainable at public expense. (1) Subject to the provisions of this section, every highway maintainable at the public expense together with the materials and scrapings of it, vests in the authority who are for the time being the highway authority for the highway. (2) Subsection (1) does not apply to a highway with respect to the vesting of which, on its becoming or ceasing to be a trunk road provision is made by section 265 below, It was, rightly, common ground between counsel that the Baird principle is firmly embedded in section 263.
+Apart from the section numbers, this provision for automatic vesting was taken, word for word, from section 226 of the Highways Act 1959.
+In its 1959 Report, the Committee of Consolidation on Highway Law, chaired by Lord Reading, which had been asked to consider the then draft bill, and whether amendments not of substantial importance to existing legislation should be made, clearly understood the rationale for the application of the Baird principle to what became section 226 (then clause 225), at para 135.
+They said: The enactments reproduced in the clause have frequently been considered by the courts and it has been held that they vest in the highway authority the property in the surface of the highway and in so much of the actual soil below and the air above as may be reasonably required for its control, protection and maintenance as a highway.
+Of rather more recent origin are those statutory antecedents to what is now section 265 of the Highways Act 1980, which make provision for the transfer of property and liabilities in connection with the designation of a highway as a trunk road, and the revocation of any such designation.
+These provisions respond, not to the need to vest in a highway authority rights formerly enjoyed by private owners of the land, but rather to the need to transfer such rights (and liabilities) from one highway authority to another where the changed status of the highway causes a change in the identity of the public body responsible for its maintenance, repair and operation.
+Prior to 1929 there was no specific statutory provision for this purpose.
+In Finchley Electric Light Co Ltd v Finchley Urban District Council [1903] 1 Ch 437 the question was whether the defendant as local highway authority could restrain the running of a power cable by the plaintiff at a height of 34 feet above Regents Park Road in London.
+The council had acquired property rights in relation to the road by automatic vesting under section 149 of the Public Health Act 1875 (a direct statutory predecessor of what is now section 263), the previous owners having been turnpike trustees, who had acquired it for the construction of a road.
+The fact that the councils predecessors in title were turnpike trustees did not permit the Court of Appeal to do otherwise than apply the Baird principle to the automatic vesting achieved by section 149, even though the turnpike trustees had acquired their title by conveyance in unqualified terms, so as to have been the owners of the whole of the vertical plane above and below the location of the road.
+Collins MR said: It seems to me that the standard which determines this question is, not how much the owner has to give, but how much the local authority under the Public Health Act have the right to take.
+A hesitant start towards a more bespoke regime for transfers of property between successive highway authorities was made in section 29 of the Local Government Act 1929, in relation to main roads (renamed county roads) for which, thereafter, county councils rather than local councils were to be responsible.
+Section 29 affords little assistance for present purposes because it appears to provide for the vesting only of the materials of the road and the drains belonging to it, leaving the vesting of property in the land itself (including the airspace above it) to the then provision for automatic vesting, in the Public Health Act 1875.
+A more ambitious property transfer scheme was undertaken in relation to newly designated trunk roads by section 7 of the Trunk Roads Act 1936.
+It provided as follows: Transfer of property and liabilities. (1) When a road becomes a trunk road, then, subject to the provisions of this section, of the property which immediately before the date on which the road became a trunk road was vested in the former highway authority for the purposes of their functions in relation to the road there shall, as from that date, be transferred to, and vest in, the Minister, by virtue of this section, the following property, that is to say: The road and any land (not being land vested in the former highway authority for the purpose of being used for the storage of materials required wholly or partly for the maintenance, repair or improvement of other roads or land acquired for the improvement or development of frontages or of land abutting on or adjacent to the road);
+This was the provision in force in relation to trunk roads when the Reading Committee came to review the consolidating and amending Highways Bill in 1959.
+Clause 229 of the Bill (which became, without amendment, section 228 of the 1959 Act) provided as follows: Transfer of property and liabilities on change of status of highway. (1) Where a highway becomes a trunk road, then, subject to the provisions of this section, there shall, as from the date on which the highway becomes a trunk road, be transferred to the Minister by virtue of this section (a) the highway, in so far as, immediately before said date, it was vested in the former highway authority, and (b) the property mentioned in the next following subsection, being property which, immediately before the said date, was vested (i) in the former highway authority for the purposes of their functions in relation to the highway, or in a council for the purposes of functions (ii) in relation to the highway under any enactment to which this section applies, and the highway and other property so transferred shall by virtue of this section vest in the Minister: (2) The property referred to in paragraph (b) of the foregoing subsection is (a) land, other than land vested in the former highway authority for (i) the purpose of being used for storage of materials required wholly or mainly for the maintenance or improvement of other highways, or (ii) acquired for improvement or development frontages to the highway, or of land adjoining or adjacent to the highway
+It will be immediately apparent that there are significant linguistic similarities and differences between section 7 of the 1936 Act and section 228 of the 1959 Act.
+What was previously called the road is now called the highway.
+Whereas, in the 1936 Act, the transfer both of the road and other property (including land) was all regulated by the condition that it had been vested in the former highway authority for the purposes of their functions in relation to the highway that condition is, in the 1959 Act, applied in the same language to other property including land, but not in express terms to the highway.
+Rather, the condition relating to the highway itself is that it is transferred in so far as, immediately before the said date, it was vested in the former highway authority.
+There is also, in section 228(6), a provision for reverse transfer where a trunk road ceases to be a trunk road but it is not suggested that this significantly affects the present dispute.
+Nothing in the Reading report (which includes a short commentary on what was then clause 227) suggests that the Committee thought that these changes to the language and layout of the provisions for transfer of property in relation to trunk roads effected any material change to the substance of those provisions.
+The wording of section 228 of the 1959 Act was carried forward into what is now section 265 of the 1980 Act with very little alteration.
+The phrase and the highway and other properties so transferred shall by virtue of this section vest in the Minister has been removed.
+As already noted, article 2 of the Transfer Order takes as its model the provisions of section 265, again with no amendment which has any consequence in relation to the present dispute.
+It was, more or less, common ground that since article 2 had been drafted on the basis of the model constituted by section 265, it was to that section that recourse had to be made to resolve the dispute as to the meaning of the article.
+Analysis
+The question for determination on this appeal, which is more focussed than the more widely drawn preliminary issues, is whether the provision in article 2(1)(a) for the transfer to TfL of the highway in relation to a GLA road, and the identical provision in section 265(1)(a) in relation to a trunk road, is governed by the Baird principle so as, in every case, to limit the property transferred within the vertical plane above and below the highway to the zone of ordinary use.
+The appellant TfL claim that it is not so limited.
+The respondent Councils say that it is.
+This would be an arid academic question if the only way in which local authorities (including the respondent Councils) could ever acquire property rights in relation to highways was by automatic vesting under section 263 and its predecessors.
+If that were so, the former highway authorities would only own the zone of ordinary use, and nothing in the airspace above it or the soil below it could ever be transferred, either under section 265(1)(a) or under article 2(1)(a).
+But local highway authorities may also acquire, and the Councils certainly have acquired, property rights in relation to highways by other means.
+They include compulsory purchase and acquisition by private treaty, which is completed in both cases by conveyance or transfer.
+Furthermore, local authorities may come to have property rights in relation to highway land for purposes other than highways purposes, and may acquire such rights, again, by compulsory or voluntary purchase, by means of conveyance or transfer.
+In the generality of such cases (save, that is, where there is a reservation of part of the vertical plane in the conveyance, or where the transferor does not own the whole of it) the local authority will acquire ownership of the whole of the vertical plane, not just the zone of ordinary use.
+Local authorities may also come to have ownership rights in relation to highways by being or becoming adjoining owners: see below.
+Furthermore, the ownership of airspace above, and subsoil below, the zone of ordinary use relating to a highway may, particularly in Central London, be of substantial commercial value.
+Buildings are commonly constructed across a highway in the airspace above that part needed for its use as such.
+The ground beneath highways is often intensively used for other purposes, such as underground railway stations, public lavatories and even, under the approach to Blackfriars bridge, a shooting gallery.
+Similarly, ownership of the airspace and subsoil, even where not yet used for buildings or other structures, may have substantial development value.
+These complexities are well illustrated in the admirable award of the arbitrator Mr John Male QC, and in the supporting materials.
+There is nothing new about disputes concerning highway ownership arising from commercial motivation.
+The question in the very earliest case, Coverdale v Charlton, was whether the highway authority had a sufficient proprietary right in the surface of the highway to let it for pasturage, sufficient to enable the plaintiff as lessee to bring proceedings for interference with it.
+It was sufficient for the courts affirmative conclusion that the highway authority did own the surface of the highway, so that the vertical plane issue in the present case did not arise.
+TfLs case, which was broadly accepted both by the arbitrator Mr John Male and, on the first appeal, by Mann J, may be summarised in this way.
+The purpose of the Transfer Order, as part of a scheme under which TfL replaced the Councils as highway authority in relation to GLA roads was, at least in relation to property rights, to place TfL squarely in the shoes of those Councils.
+Accordingly, whatever part of the vertical plane was owned by the Councils on the operative date, transferred under article 2(1)(a) to TfL.
+From the generality of this conclusion the arbitrator made this exception.
+Where particular layers or slices of subsoil and/or airspace (for example, certain structures) may have received or acquired a separate identity by the operative date, such that they could not properly be called parts of the highway, ownership in those slices would not pass to TfL.
+This qualification is recorded in paragraph 265.2(1)(c) of his award.
+On appeal, Mann J recorded a more significant concession made by Mr Morshead QC on behalf of TfL, namely that its claim related to land acquired for or appropriated to highway purposes: see para 56 of his judgment.
+At common law (and subject to any statutory vesting) the owner of land adjoining a highway is taken to be the owner of the subsoil beneath it and the airspace above it ad medium filum ie as far as the centre line of the highway.
+If the same person owns the adjoining land on both sides of the highway, then prima facie that person owns the whole of the vertical plane defined by the highway, outside the zone of ordinary use.
+As the judge explained, the specific purpose of TfLs concession, quoted above, was to renounce any claim to a transfer of parts of the vertical plane above and below a GLA road where the Councils ownership of it derived from its status as the owner of adjoining land.
+The Councils case, which was broadly accepted by the Court of Appeal, may be summarised as follows.
+The purpose of the Transfer Order, like the purpose of all provisions for statutory vesting of property in highway authorities, was to vest in TfL only those ownership rights in the vertical plane of the highway which were necessary to enable it to perform its functions as highway authority.
+Thus the Baird principle applied to article 2 just as much as it did to statutory vesting under section 263 and to transfer of property relating to trunk roads under section 265.
+That was apparent from the fact that in all those instances, the drafter defined the property transferred as the highway, which had by the time of the Transfer Order come to have a clear and consistent meaning, limited to the zone of ordinary use.
+Further, any more generous interpretation of article 2(1)(a) would expropriate from the Councils valuable property rights, particularly in Central London, without compensation to their ratepayers.
+Accordingly, article 2(1)(a) transfers as the highway only the zone of ordinary use, leaving the Councils as continuing owners of anything else which they owned on the operative date within the vertical plane.
+The question really boils down to this: does the Baird principle apply to article 2? In respectful disagreement with the Court of Appeal, I do not regard article 2 or, for that matter, section 265, as governed or constrained by the Baird principle.
+My reasons follow.
+In my judgment article 2(1)(a) transfers to TfL ownership of all that part of the vertical plane relating to a GLA road vested in the relevant council on the operative date, but only to the extent that ownership was then vested in the council in its capacity as former highway authority.
+That is, in my view, the true meaning of the phrase the highway, in so far as it is vested in the former highway authority.
+It follows that: i) rights held by the Councils in the vertical plane of a highway as adjoining owner, for purposes other than highway purposes, do not pass under article 2(1)(a).
+This is because they are not held by the Council in its capacity as highway authority. ii) rights originally acquired for purposes other than highway purposes, or appropriated to those other purposes by the operative date, do not pass under article 2(1)(a).
+This is so whether or not some non highway structure has by then been constructed.
+If acquisition or appropriation for non highway purposes has occurred by the operative date, it matters not that the relevant purpose has yet to be fulfilled, so that the relevant part of the vertical plane remains undeveloped. iii) rights originally acquired for highway purposes in the vertical plane, for example by conveyance on compulsory acquisition for highway purposes, do pass under article 2(1)(a), even if they extend beyond the zone of ordinary use, provided that they have not, by the operative date, been appropriated to some non highway use outside the zone of ordinary use. iv) All these consequences, and in particular the first, flow from the true construction of article 2, rather than merely by way of TfLs concession as recorded by Mann J.
+It may be that sub paragraph (ii) of the above summary differs a little from the reasoning of the arbitrator.
+This is because, whereas he regarded a non highway structure actually built in the vertical plane (like an over flying building of underground public lavatory) as falling outside the definition of highway for all purposes, he did not (at least expressly) also regard the acquisition or appropriation of part of the vertical plane for non highway purposes as sufficient on its own to take that part, even if undeveloped, out of the property transferred under article 2(1)(a).
+Meaning of highway
+The Court of Appeal concluded that highway as used in article 2 and section 265 had a clear common law meaning, limited in the vertical plane to the zone of ordinary use.
+I respectfully disagree.
+The word highway is not a defined term, either in the 1980 Act, in the Transfer Order, or in the GLA Act.
+There is a limited explanation, in section 328 of the 1980 Act that: In this Act, except where the context otherwise requires, highway means the whole or a part of a highway other than a ferry or waterway.
+This is largely circular so far as concerns the core meaning of highway and, in any event, subject to context.
+It does not follow that the interpreter is therefore required to find some uniform meaning of the word highway wherever it is used, either in the relevant legislation or, as the Court of Appeal thought, at common law.
+There is in my view no single meaning of highway at common law.
+The word is sometime used as a reference to its physical elements.
+Sometimes it is used as a label for the incorporeal rights of the public in relation to the locus in quo.
+Sometimes, as here, it is used as the label for a species of real property.
+When used within a statutory formula, as here, the word necessarily takes its meaning from the context in which it is used.
+In agreement with counsel and with the Court of Appeal, I do consider that the meaning of article 2 is to be found by an examination of the meaning of the almost identically worded section 265.
+This is not merely because of the linguistic similarity between those two provisions, but because the whole of the structure for the transfer of property and liabilities in the Transfer Order is closely modelled on the pre existing structure of the provisions in section 265 relating to trunk roads.
+It is tempting but, in my view, wrong to assume that, where sections 263 and 265 both refer to highway as a label for real property rights which are to be vested in a highway authority, the word highway must therefore have precisely the same meaning in both sections.
+This is not merely because the word appears as part of two quite differently worded provisions.
+Rather, it is because, although now lying almost side by side in a consolidating statute, the two sections have completely different ancestry, and serve two very different purposes.
+As already noted, section 263 takes away from private ownership only those rights in the vertical plane of the highway which are necessary to enable the highway authority to perform its statutory functions of operation, maintenance and repair.
+By contrast, section 265 merely transfers rights in the vertical plane already owned by one public authority to a successor public authority, so that the successor can stand in the shoes of its predecessor so far as ownership is concerned.
+This is, in particular, apparent from the way in which the Bill which became the Trunk Roads Act 1936 was described to Parliament by the then Minister for Transport at its second reading.
+Speaking of clause 7, he said: The basis for the transfer is, as laid down in clause 7, that the Minister should take over the road and all properties and liabilities attaching to it In the House of Lords the Earl of Erne, speaking for the Government,
+described the objectives of the Bill as follows: The principle on which the Bill is based is to make a clean
+transfer of responsibility
+As already explained, section 7 of the Trunk Roads Act 1936 is the original progenitor of what is now section 265, having been significantly re worded in 1959 as section 228 of the Highways Act 1959, without any apparent intention thereby to effect any change of substance in its meaning.
+There is no reason why the Baird principle should apply so as to restrict the nature or extent of property being transferred between two public highway authorities, one of which is stepping into the shoes of the other.
+The only limitation which does need to be imposed is one which restricts the rights transferred to those enjoyed by the former highway authority in its capacity as such.
+If the former authority enjoys rights in the vertical plane of the highway in some other capacity, such as adjoining owner, or for other public purposes, there is no sensible reason why those rights should be transferred to its successor as highway authority, merely because of the happenstance that they were vested in the former authority on the operative date.
+Full effect to that qualification upon the extent of the rights transferred is given if the words in section 265(1)(a) in so far as, immediately before the operative date, it was vested in the former highway authority are taken as meaning vested in the former highway authority in its capacity as such.
+When this way of interpreting section 265(1)(a), and the similarly worded article 2(1)(a), was suggested by the court to Mr Morshead for TfL, he acknowledged, upon reflection although not by way of concession, that this might well be correct.
+By contrast, the respondent Councils case, that highway in section 265 and article 2 can never mean more than the zone of ordinary use, makes the words which immediately follow, quoted above, redundant.
+A highway authority always has vested in it the zone of ordinary use, because of section 263, so the qualification beginning with the words in so far as then becomes meaningless.
+Multi layering
+Both the arbitrator and Mann J were powerfully affected by a perception of the unattractive consequences of the Councils construction, under what may be labelled as multi layering of the vertical plane.
+Where a local highway authority had acquired land by compulsory purchase (or private treaty) for the purpose of building a road, and thereby had the whole of the vertical plane conveyed or transferred to it, the effect of the Councils construction of section 265 and article 2 would be, for the first time, to split that vertical plane between two successive highway authorities, one owning the top slice and the bottom slice, and the other owning the middle slice constituted by the zone of ordinary use.
+As the arbitrator put it, at para 104: With all due respect to the Councils, I cannot see what rational purpose is served by there being two public bodies owning different layers of what was formerly owned by one single public body.
+I agree.
+The Court of Appeal acknowledged that this was a consequence of its interpretation but noted that multi layering of the vertical plane was already endemic within Central London, and that it was an insufficient factor to overcome what it regarded as the plain meaning of the word highway.
+In my view, where the transposition of the settled meaning of a word from one section to another section of a complex consolidating statute produces an irrational result, that is a powerful reason for treating the word as having different meanings in those different contexts.
+Furthermore, although article 2 only has effect in London, section 265 has effect in urban and rural areas alike.
+It is of course true that some layering of the vertical plane is inevitable in relation to highways, both in rural and urban areas.
+For example, it occurs whenever there is automatic vesting under section 263.
+But in such a case the layering arises between a public authority on the one hand and private owners on the other, for reasons which are not irrational.
+Equally, and particularly in the modern urban environment, there may be layering of the vertical plane between different public authorities, such as those responsible for highways, sewers and underground railways.
+Again, this is for reasons which have a rational purpose.
+By contrast, the irrationality identified by the arbitrator is that arising from two different highway authorities owning parts of the vertical plane in the same highway.
+To that I would add that, on the Councils case, by virtue of the transfer of highway functions from one to the other, the former authority, which held rights in the vertical plane only as highway authority, continues to enjoy those rights while it has no further statutory responsibilities to discharge in its capacity as such.
+It is difficult to identify any sensible purpose served by such an outcome.
+I acknowledge also that my interpretation of article 2(1)(a), which limits the rights transferred to those transferred by the former highway authority in its capacity as such, will also lead to layering of the vertical plane in some cases where it did not previously exist.
+This will occur, for example, where the former authority is an adjoining owner (with rights ad medium filum) or where the former authority has rights in part of the vertical plane for other statutory purposes, such as sewerage or the operation of underground railways.
+But again, there is nothing irrational about layering of that kind.
+Section 266A
+The Court of Appeal was significantly influenced in its reasoning by a perception of the difficulties which might flow from TfLs interpretation of article 2, in conjunction with section 266A of the Highways Act 1980.
+Mr Elvin QC for the respondent Councils pressed the same point upon us in his own excellent and succinct submissions.
+Section 14B of the 1980 Act empowers the Mayor of London to direct that a highway or proposed highway shall become or cease to be a GLA road.
+Section 266A provides for transfer of property and liabilities upon such an event.
+It contains provisions which broadly reflect article 2(1)(b) and (3) of the Transfer Order, for the transfer of property including land, but contains no equivalent to article 2(1)(a) providing expressly for the transfer of the highway itself.
+Mr Elvin submits that this must mean that in such a case, rights in the highway itself are transferred only under section 263, subject of course to the Baird principle.
+Thus, if TfLs interpretation of article 2(1)(a) is correct, TfL would receive more of the vertical plane upon the original designation of a GLA road under the Designation Order than it would have to give back under section 266A if that designation was subsequently revoked under section 14B, an irrational outcome which cannot have been intended.
+I agree that this would be a surprising and probably unintended outcome, but not that it is the consequence of the omission of an express reference to the highway in section 266A.
+In my judgment, a preferable view may be that when a highway becomes or ceases to be a GLA road by virtue of an order made under section 14B, rights in the nature of real property in the vertical plane of the highway pass under section 266A(4)(a) as land.
+It is preferable to Mr Elvins construction because a conclusion that rights in the highway itself only pass by virtue of section 263 would introduce the Baird principle into a context (transfer between successive public highway authorities) to which it has no sensible application.
+I accept that this requires the word land to be given a different, larger, meaning in section 266A than it has in article 2, but this is simply because its narrower meaning in article 2 is necessitated by the separate express treatment of rights in the highway as real property; ie as land.
+It is another example of identical words having different meanings as necessitated by their different contexts.
+I need express no final view on the interpretation of section 266A because it is not directly in issue in this case.
+Its later date means that it cannot be an aid to the interpretation of section 265, which was the model chosen for article 2, rather than the differently framed section 266A.
+The Baylis case
+Mr Elvin sought also to derive assistance from dicta of Mr Lewison QC (as he then was) in Secretary of State v Baylis (Gloucester) Ltd (2000) 80 P & CR 324, in a judgment with which the Court of Appeal agreed.
+The issue in the Baylis case did relate to what had by the time of the trial become a trunk road, but it had nothing to do with the extent of rights in the vertical plane of a highway transferred between highway authorities under what is now section 265.
+The dispute was about whether the strip of land in dispute, which adjoined the physical surface of the road, had ever been dedicated to the public as part of a highway, and that turned upon the true construction of a written agreement between the then owner and the county council.
+The adjacent highway (for which the dedicated strip was to facilitate an improvement) had later been designated a trunk road, but that had no consequence for the determination of the dispute.
+In an otherwise unimpeachable summary of the effect of land becoming part of a highway, Mr Lewison said: The effect of trunking a highway is that the highway vests in the Minister (now the Secretary of State).
+The extent of such vesting is such part of the land as is necessary for the highway authority to perform its statutory functions.
+It has been described as the top two spits.
+It did not matter in that case whether the Secretary of State received the top two spits (or as I would prefer to call it the zone of ordinary use) or the whole of the vertical plane.
+Furthermore the former highway authority had never obtained more than the zone of ordinary use, because its title depended upon automatic vesting under what is now section 263, following dedication.
+I therefore respectfully disagree with that small (and obiter) part of Mr Lewisons succinct summary of the relevant highways law, for the detailed reasons which I have given.
+Expropriation
+A final reason why the Court of Appeal was persuaded that transfers under article 2 should be subject to the Baird principle of necessity was that, otherwise, the residents and ratepayers of the respondent Councils would be deprived, without compensation, of more property than was necessary to fulfil the purpose of constituting TfL as the relevant highway authority.
+I have not been persuaded by this analogy.
+In every case of a transfer between highway authorities, whether under section 265 or article 2, the former authority is being relieved of its responsibilities for operation, maintenance and repair of the relevant highway, and all associated liabilities (subject to certain exceptions).
+The transfer of property held by the former highway authority in its capacity as such is simply the quid pro quo for that relief from responsibility.
+The ratepayers get the full financial benefit of that relief from responsibility.
+There may be cases where the value of the transferred ownership of the vertical plane exceeds the financial burden of the responsibilities, eg where the vertical plane outside the zone of ordinary use has development value.
+That may be part of the reason for this long and costly litigation.
+But usually it will have no such excess value.
+The meaning of article 2 and section 265 cannot vary as between one highway and another by reference to such infinitely variable economic comparisons.
+Burden of Proof
+While acknowledging that article 2(1)(a) of the Transfer Order might best be interpreted as subject to the limitation that rights in the highway should have been vested in the former highway authority in its capacity as such, Mr Morshead for TfL submitted that there should, nonetheless, be a strong presumption that all rights in the vertical plane as were in fact vested in the former highway authority on the operative date were vested in it in that capacity.
+It would be, he said, for the former authority (here the respondent Councils) to prove otherwise, the burden being firmly upon them.
+I can see no good reason why any such presumption or burden of proof should be identified as flowing from the true interpretation of article 2.
+The papers lodged with the court on this appeal demonstrate that the resolution of these vertical plane issues in the context of highways in Central London, where they cannot be agreed, is an intensely fact sensitive and complex task.
+As already explained, the Councils will have acquired rights in the vertical plane in a variety of different ways, and it will be necessary to analyse both the extent of the rights acquired, and the capacity in which the Council acquired those rights.
+Sometimes the GLA road has a non GLA highway running over or under it.
+There are frequently buildings and other structures encroaching upon the vertical plane of the highway, outside the zone of ordinary use.
+The arbitrator should not be saddled with a presumption as to the outcome of that difficult factual analysis, one way or the other.
+The Lateral Plane
+It was mentioned by counsel, and in the statement of agreed facts and issues, that the resolution of the dispute in this appeal would also have consequences in the lateral plane, rather than only the vertical plane, of land defined by a highway.
+That may be so, but all the argument before this court has been directed to the vertical plane.
+Nothing in this judgment should be taken as implying any view about lateral plane issues, which were not explored.
+Conclusion
+For the above reasons, I consider that this appeal should be allowed.
+The interpretation which I conceive to be correct differs in some small respects from that adopted by the arbitrator and indeed by Mann J, in dismissing the first appeal.
+Furthermore the questions as originally framed in the preliminary issues determined by the arbitrator have since narrowed.
+It will therefore be necessary to receive submissions about the precise form of order which this court should now make in relation to the preliminary issues which are the subject of this appeal.
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@@ -0,0 +1,528 @@
+This appeal concerns the application of the test of obviousness under section 3 of the Patents Act 1977 to a dosage patent.
+In summary, a patent, whose validity is not challenged, identified a compound as an efficacious treatment but did not identify an optimal dosage regime.
+A pharmaceutical company, which had acquired the patent, conducted extensive research into ascertaining the optimal dosage of the compound.
+It discovered a dose which not only was safe and effective but also, unexpectedly, could be administered in a new and beneficial manner, because of both the half life of the compound and its minimal side effects at that dose.
+A number of generic drug manufacturers challenge the validity of the dosage patent on the basis that it involves no inventive step.
+The appeal raises two principal questions.
+The first relates to the application of the obviousness test to a dosage patent and the second is concerned with whether the Court of Appeal was entitled to reverse the judgment of the judge at first instance on that question in the circumstances of this case.
+The patent under challenge
+The dosage patent which is the subject of this appeal is EP(UK) 1,173,181 (the 181 patent).
+It is owned by ICOS and exclusively licensed to Eli Lilly (collectively Lilly).
+It relates to the use of tadalafil in a dosage form for the treatment of sexual dysfunction.
+It was filed on 26 April 2000 and claims priority from US application no 60/132036P filed on 30 April 1999.
+It was granted on 15 October 2003.
+The form of the 181 patent is a B3 specification following centralised amendments made in the European Patent Office (EPO) on 25 March 2015.
+The claimants, who are the respondents in this appeal, raised proceedings to revoke the 181 patent and Lilly defended the claim and counterclaimed that the claimants were threatening to infringe its patent.
+The earlier phases of this litigation involved challenges to the 181 patent based on (a) priority, (b) added matter, (c) lack of novelty, (d) obviousness and (e) insufficiency.
+Of those challenges, the principal matter of contention is obviousness.
+The claimants challenges on priority, added matter and lack of novelty arise only if this court upholds the appeal by Lilly against the Court of Appeals finding of obviousness.
+Factual background
+Erectile dysfunction (ED) is a common medical condition which affects approximately 50% of the male population between the ages of 40 and 70.
+It is caused by a number of disorders, both physiological and psychological.
+Unsurprisingly, the discovery of a drug to treat ED, called sildenafil, which was and is sold under the brand name VIAGRA, proved to be a very great commercial success.
+The drug, which is the subject of the patent in dispute, is called tadalafil.
+Tadalafil is the generic name for a drug which is sold under the brand name CIALIS for the treatment of ED and benign prostatic hyperplasia, and under the brand name ADCIRCA for the treatment of pulmonary arterial hypertension.
+CIALIS has also enjoyed great commercial success.
+In 2014 worldwide sales amounted to about $2.29 billion and UK sales amounted to about $99m.
+In that year UK sales of ADCIRCA amounted to about $1m.
+Technical background
+I derive my summary of the technical background from the judgment of Kitchin LJ, who wrote the leading judgment in the Court of Appeal [2017] EWCA Civ 1671; [2018] RPC 7, and the findings of the trial judge, Birss J [2016] EWHC 1955 (Pat).
+The penis contains smooth muscle.
+When in its normal resting state, the smooth muscle contracts and so restricts the arteries supplying blood to the penis.
+When an erection is triggered, the smooth muscle relaxes and no longer restricts the supply of arterial blood, causing the penis to become tumescent.
+The smooth muscle relaxation which leads to the erection results from a cascade of complex biochemical reactions within the body.
+Sexual stimulation causes the release of the neurotransmitter nitric oxide (NO) which enters the smooth muscle cells where it leads to an increase in the production of a second molecule, cyclic guanosine 3, 5 monophosphate (cGMP). cGMP in turn binds to and activates an enzyme which regulates the activity of other intracellular proteins and leads to the relaxation of the smooth muscle.
+An increase in the intracellular level of cGMP, through NO production, therefore promotes smooth muscle relaxation, while a decrease in the intracellular level of cGMP tends to cause the smooth muscle to return to its ordinary contracted state.
+The intracellular concentrations of cGMP and another second molecule, cyclic adenosine 3,5 monophosphate (cAMP), are regulated by a class of enzymes known as cyclic nucleotide phosphodiesterases (PDEs).
+By the priority date in 1999 at least six PDE families had been identified.
+It was known that the PDE family most prevalent in the penis was PDE5.
+This binds cGMP and hydrolyses it to its non cyclic form GMP, so leading to a reduction in smooth muscle relaxation and the prevention of penile tumescence.
+It is necessary to mention also the concept of potency.
+Potency is the amount of the drug required to produce a defined biological effect of given intensity.
+Potency can be measured as the concentration or dose of a drug required to produce 50% of the drugs maximal effect (EC50 or ED50) as depicted by a graded dose response curve.
+In the context of a drug that inhibits the action of another substance, potency can be expressed as the concentration of a drug required to inhibit a given biological process by half, ie the in vitro concentration of the drug which is required for 50% inhibition (IC50).
+A higher potency drug will have a lower concentration because less drug will be required to achieve the same effect.
+As Kitchin LJ illustrated in paras 17 and 18 of his judgment the dose response curve of a drug is illustrated graphically as a sigmoid (or S shaped) curve with a flat or gently inclined base at which increasing doses are slow to manifest a significant effect, a steep central part at which increasing doses have an increasing effect, and a plateau at the top at which increasing doses have no increased effect.
+The minimum effective dose is the smallest dose in the dose response curve at which a clinically relevant effect can be seen.
+The concept of the minimum effective dose would be known to the skilled team, who would be aware that regulators could ask for it to be identified.
+But they would also know that it is not always required.
+The trial judge found that it had not been established that the skilled team would always seek to identify the minimum effective dose for a given drug.
+It might be sufficient to know that the minimum effective dose was somewhere in a range.
+In the context of ED, there was no agreed definition of a minimum clinically relevant effect and this had a bearing on the judges reasoning in relation to obviousness.
+Identification of the minimum effective dose depends on a value judgment, as the skilled team would know.
+The primary task of the skilled team was and is to make safe, tolerable and effective medicines.
+Sildenafil and tadalafil
+Sildenafil was marketed as an orally administered PDE5 inhibitor, which prevented PDE5 from hydrolysing cGMP to the inactive GMP. cGMP levels remain elevated as a result and this promotes smooth muscle relaxation.
+This leads to greater arterial blood flow into the penis when it is stimulated and results in penile tumescence.
+A disadvantage of sildenafil was its effect on other PDE families and, in particular, PDE6 which was associated with known visual side effects.
+Sildenafil was also associated with normally mild and transient side effects including flushing, headache and dyspepsia, which were thought to be related to its mode of action as a PDE5 inhibitor.
+Sildenafil was known to be administered on demand with an onset of action of about one hour and a half life of about four hours.
+It was marketed at doses of 25mg, 50mg and 100mg.
+It was known that broadly efficacy increased with dose and so did side effects.
+Those were the doses upon which a skilled team would focus although it was also known that a 10mg dose of sildenafil had been investigated in trials and shown to be efficacious.
+Sildenafil was a first in class drug which validated the rationale for trying to treat ED using an oral PDE5 inhibitor.
+Any other PDE5 inhibitor for ED would be known as a second in class drug.
+A clinical pharmacologist would have an enhanced expectation that a second in class drug would be efficacious.
+But the idea of investigating chronic dosing of a drug for ED was not part of the common general knowledge.
+Tadalafil is a second in class drug.
+It is another PDE5 inhibitor and operates in essentially the same way as sildenafil.
+An advantage which tadalafil was found to have over sildenafil was its selectivity; it was able to bind to and inhibit its target PDE5 while having significantly less effect than sildenafil on other PDE families and, in particular, PDE6.
+This selectivity resulted in less and a smaller number of side effects.
+The skilled team
+The parties agreed that the notional skilled team, by reference to which the question of the obviousness of the patent in dispute would be assessed, would include a clinical pharmacologist with experience in pharmacokinetics and a clinician specialising in urology.
+Both were important and would work together.
+The clinical pharmacologist would take the lead in the quantification of doses and the dose response.
+The clinician would take the lead when assessing the clinical significance of an effect, whether a desired effect or a side effect.
+The clinical pharmacologist would be primarily responsible for selecting the doses to be tried in the dose ranging study, with input from the clinician.
+The phases of clinical research
+It was of central importance to the case of obviousness which the claimants presented that clinical research into a new medicine follows a standard pathway of four phases.
+The judge set out this pathway in paras 76 81 of his judgment and below I draw heavily on Kitchin LJs summary of that exposition.
+A new drug, identified through appropriate in vitro testing and pre clinical animal studies, is taken forward into human tests.
+The first of such tests are known as Phase I and they are carried out on healthy volunteers to test safety rather than efficacy.
+The tests provide pharmacokinetic information and allow an assessment of bio availability.
+If these tests are positive, the next step is to move the drug into Phase II.
+Phase II studies are generally carried out in two stages, Phase IIa and Phase IIb.
+Phase IIa, which consists of what are sometimes known as go, no go studies, provides proof of concept.
+The studies are generally carried out at one dose, selected to be high enough to give the drug the best chance of showing a positive effect on the disease, albeit not too high to risk serious side effects.
+Phase IIb involves testing a range of doses to show the effect of the dose.
+In the judges words, the idea is that the highest dose will show a larger clinical effect than the smallest dose.
+The obviousness challenge in this case focuses on what the hypothetical skilled team would do in this phase of clinical research.
+If the decision after Phase II is positive, the next phase is Phase III.
+This is a large scale clinical trial designed to generate data to support an application for regulatory approval.
+Phase IV studies take place after regulatory approval and are not relevant to the issues arising in this appeal.
+The Daugan patent
+Glaxo filed an application for a patent which was published on 6 February 1997 and led to patent EP 0 839 040 (the Daugan patent or Daugan).
+Glaxo did not take forward the research to implement the Daugan patent but transferred it to ICOS.
+The Daugan patent discloses the idea of using certain compounds which are PDE5 inhibitors for the treatment of ED.
+It specifically describes two compounds, A and B. Compound A is tadalafil.
+Daugan discloses tadalafils (and Compound Bs) potency (ie IC50) against PDE5 as 2 nM. Daugan discloses that doses of Compounds A and B will generally be in the range of 0.5mg to 800mg daily for the average adult patient.
+It gives examples of a tablet containing a 50mg dose of the active ingredient.
+But the Daugan patent does not purport to set out an appropriate dosage regime as an oral treatment of ED.
+It is not disputed that at the priority date it was entirely obvious for the notional skilled team, given the Daugan patent, to set out taking tadalafil forward into a routine pre clinical and clinical trial programme as an oral treatment for ED.
+The statements in Daugan and the huge success of sildenafil as an oral PDE5 inhibitor made it very obvious.
+Tadalafil would be an attractive potential second in class medicine to develop because Daugan teaches that it has a promising IC50 against PDE5.
+It is more potent than sildenafil, which has an IC50 of about 3 or 3.9 nM.
+The trial judge found that the skilled team would understand the limitations of in vitro IC50 data and would know that there could be all sorts of factors such as bioavailability and tissue compartmentalisation which might limit tadalafils clinical utility.
+But he found that that would not deter the skilled team from embarking on a routine pre clinical and clinical trial programme.
+The central question in this appeal is whether in the light of the common general knowledge which I have summarised in paras 8 16 and 18 22 above and the Daugan patent as the nearest prior art, the relevant claims in the 181 patent were obvious.
+I therefore turn to the 181 patent.
+The 181 patent
+The 181 patent is a dosage patent.
+In the specification (para 1) it refers for priority to the provisional patent application to the US Patent and Trademark Office Serial no 60/132036, which was filed on 30 April 1999.
+It asserts (para 2) that the invention relates to a highly selective PDE enzyme inhibitor and to its use in a pharmaceutical unit dosage form.
+In particular it relates to a potent inhibitor of PDE5 that is useful for the treatment of sexual dysfunction.
+In its description of the background of the invention, it refers to VIAGRA, its lack of selectivity for PDE6 and its side effects (para 4).
+It refers in para 7 to the Daugan patent and its disclosures.
+It asserts (para 8) that the applicants have discovered that tadalafil (which it described as compound (I)) can be administered in a unit dose that provides an effective treatment without the side effects associated with the presently marketed PDE5 inhibitor, sildenafil.
+Prior to the present invention such side effects were considered inherent to the inhibition of PDE5.
+It continues (para 9) that clinical studies revealed that the product is effective with a reduced tendency to cause flushing and, unexpectedly, can be administered with clinically insignificant side effects associated with the combined effects of a PDE5 inhibitor and an organic nitrate.
+In its summary of the invention (paras 11 15) it discloses a pharmaceutical dosage form for human pharmaceutical use of about 1 to about 5mg of tadalafil in a unit dosage form suitable for oral administration for the treatment of sexual dysfunction, including ED up to a maximum total dose of 5mg per day.
+The relevant claims are as follows.
+Claim 1 asserts A pharmaceutical unit dosage composition comprising 1 to 5mg of a compound having [the illustrated structural formula of tadalafil] said unit dosage form suitable for oral administration up to a maximum total dose of 5mg per day.
+Claims 2 and 3 assert dosage forms comprising 2.5mg and 5mg of the compound respectively.
+Claim 6 states: the dosage form of any one of claims 1 through 3 for use in treating a condition where inhibition of PDE5 is desirable.
+Claim 7 refers to the dosage form of claim 6 wherein the condition is a sexual dysfunction.
+It is a claim for a purpose limited product, known as an EPC 2000 claim, which, since 2011, the European Patent Office (EPO) issues in place of Swiss form claims, and claim 8 refers to the sexual dysfunction of ED.
+Claim 10 is a Swiss form claim which, as is well known, is a purpose limited process claim, giving a monopoly for the use of compound X in the manufacture of a medicament for the treatment of indication Y. It is in the following terms: 10.
+Use of a unit dose containing 1 to 5mg of a compound having the structure [of tadalafil] for the manufacture of a medicament for administration up to a maximum total dose of 5mg of said compound per day in a method of treating sexual dysfunction in a patient in need thereof.
+Kitchin LJ in his judgment (para 46) observed that the purpose limited claim 7 is dependent on claim 6 and claim 1 and construed it as manifesting an intention that the maximum dose per day constituted part of the purpose limitation of the claim.
+He also interpreted claims 7 and 10 as being directed to the treatment of sexual dysfunction by the administration of a dose of no more than 5mg tadalafil per day.
+The claimed invention is the application of the discovery that sexual dysfunction may be treated by administering such a dose and with minimal side effects (paras 50 52).
+The claimants do not challenge those findings.
+Lilly asserts that the essence of the invention is the discovery that tadalafil is effective in treating ED at such a low dose and with minimal side effects.
+This discovery has allowed the drug to be taken daily (for chronic use) rather than on demand, thus avoiding the need to anticipate when sexual activity might occur.
+This is, Lilly claims, a significant technical advantage as sildenafil by contrast is approved for on demand use only.
+Obviousness: the claimants challenge and Lillys answer
+Before Birss J the claimants submitted that it would be obvious for a skilled team given the Daugan patent to take tadalafil forward into a routine pre clinical and clinical trial programme as an oral treatment for ED at the priority date.
+While costly and time consuming, the programme would involve nothing other than routine work and no inventive effort was required.
+In the course of the programme to establish tadalafil as a safe, tolerable and effective treatment for ED, a 5mg dose would be one of the doses used on patients as it was obvious to ascertain the lowest dose at which the drug was effective.
+Standard dose ranging studies would lead to the claims in the 181 patent.
+The programme would reveal the invention without any inventive step.
+The fact that the 5mg per day dosage has a surprising beneficial property of minimal side effects was simply a bonus which did not make the dosage regime an invention.
+Lillys response was first that the discovery of the dosage regime was the result of expensive and unpredictable research which was entitled to patent protection.
+Secondly, at the start of the programme it was not obvious to try a low dose like 5mg per day as there was no reason to think that it would be effective at that dosage.
+To invalidate the claim, it would be necessary to show that at the start of the programme it was obvious to the skilled team that a 5mg/day dose would be safe and effective and also would have the minimal PDE5 related side effects.
+Lilly referred to the EPOs problem and solution approach and sought to apply it to the facts of the case.
+Birss J accepted neither approach in its entirety.
+He analysed the obviousness case by concentrating on claim 7.
+He reminded himself that the test for obviousness is a single and relatively simple question of fact.
+It is a question of fact to be decided by detailed technical arguments and evidence concerning the particular facts and circumstances, a task with which wide generalisations do not assist.
+He accepted that some experiments which were undertaken without a particular expectation as to the result were obvious.
+When considering pre clinical and clinical research it may be necessary to consider a step wise series of tests which the skilled team would undertake.
+But even if each of those steps were obvious, one must avoid the risk of hindsight by standing back and looking at the facts as a whole.
+The fact that routine tests have uncertain results does not on its own turn those results into an invention.
+Similarly, the fact that, before the pre clinical, Phase I and Phase IIa tests had been performed, one cannot say what particular doses will be tested in a Phase IIb test does not of itself make those doses inventive if some of them are found to work.
+He referred to the statement by Kitchin J in Generics (UK) Ltd v H Lundbeck A/S [2007] RPC 32, which I set out in para 63 below, and identified as relevant factors in his assessment of obviousness in this case the following: motive, multiple avenues, the effort involved and the expectation of success, the occurrence of unexpected and surprising results and the need for and nature of value judgments which have to be made in carrying out the project.
+The judges findings of fact were based principally on the evidence of (i) Mr Gary Muirhead a consultant to the pharmaceutical industry, whom the claimants called and who had worked for Pfizer on the development of drugs, including sildenafil, (ii) Dr Jay Saoud, whom Lilly called and who had over 25 years of experience in clinical development, pharmacokinetics and statistical analysis in industry, academia and contract research organisations and (iii) Dr Gerald Brock, whom Lilly called and who is a practising clinical urologist with extensive clinical, academic and advisory experience in matters concerning treatments for ED.
+In his careful assessment of their evidence Birss J held, at paras 287 et seq, that it would have been entirely obvious for a skilled team given Daugan to set out to take tadalafil forward into a routine pre clinical and clinical trial programme as an oral treatment for ED at the priority date.
+The Phase I studies would produce results which would lead the skilled team to design and undertake the Phase IIa go no go study of a single 50mg dose of tadalafil in a relatively small group of patients.
+They would embark on that study with a reasonable expectation that the drug would be safe, tolerable and effective at that dose.
+Turning to the Phase IIb studies, Birss J concluded that the first dose ranging study would be of on demand dosing using 25, 50 and 100mg of the drug.
+He did not accept Mr Muirheads suggestion that a 5mg dose would be included in this first study.
+The skilled teams expectations would be that they would hope that the study would show a dose response relationship.
+But the results would not be what the team expected because they would show no difference in efficacy between the three doses, demonstrating an apparent therapeutic plateau.
+The critical dispute at this stage was whether in the light of those findings it was an obvious thing for the skilled team to conduct a further dose ranging study or studies to investigate lower doses and determine the minimum effective dose.
+Birss J did not accept the claimants case that it was.
+He held that the skilled team would be well aware that there was no defined standard of minimal efficacy in relation to ED and that it would require a value judgement to characterise a minimum effective dose.
+He concluded (para 327) that it was not inevitable that the skilled team would investigate lower doses after discovering the therapeutic plateau because they had found a dose (at least 25mg) which was safe, tolerable and effective and thus had secured the prime objective of the programme; but he held that it was very likely that they would.
+A skilled team would be familiar with multiple dose ranging studies as necessary as a generality.
+If the skilled team carried out a further dose ranging study they would have included 5mg and 10mg doses.
+They would not have any expectation that the minimum effective dose was substantially lower than 25mg or that they would find a dose below 25mg at which there was a clinically relevant effect with reduced side effects.
+The discovery that at a 5mg dose tadalafil was efficacious and had reduced side effects would surprise the team.
+The investigation of chronic daily dosing in addition to on demand dosing would follow the similar pattern but the initial study would probably include a 10mg dose.
+The teams expectation would be the same.
+Having conducted this step by step analysis, Birss J then looked at the programme as a whole and assessed obviousness overall.
+He concluded that, given Daugan, a 25mg/day dose of tadalafil was obvious as a treatment for ED but that a 5mg daily dose was not.
+In para 343 he summarised his reasons in these terms: i) In terms of motives to find a solution to the problem the patent addresses, the skilled team would be highly motivated by Daugan and the success of sildenafil to investigate tadalafil as a treatment for [ED]. ii) As for possible avenues of research, overall tadalafil would be obvious to investigate.
+In terms of doses however, 5mg/day is a significantly lower dose than the 50mg dose exemplified in the Daugan prior art and the marketed doses of sildenafil.
+It is also significantly lower than the 50mg dose which would be chosen for the first test of efficacy at Phase IIa.
+It would not be chosen in the routine first dose ranging study.
+The team would not have anticipated daily dosing as something to be studied from the outset but once the half life was discovered it is likely that daily dosing would be included.
+In terms of effort, overall the programme would involve iii) very substantial resources of time, money and people but it would be pursued.
+However, by the time the idea of investigating lower doses presents itself, the team would have established safe, tolerable and effective doses of tadalafil at 25mg on demand and 10mg for daily dosing.
+At that stage the impetus to investigate lower doses would be reduced but not eliminated. iv) Expectations of success can be considered overall and in relation to particular studies.
+Overall the team would embark on the project with a reasonable expectation of success in establishing tadalafil as a safe, tolerable and effective treatment for [ED].
+However, the claimants failed to prove that efficacy at 5mg tadalafil was predictable or worth considering by the skilled team based on the properties of tadalafil as compared to sildenafil.
+The team would know that in principle there would be a minimum effective dose for tadalafil but would also know that its definition depends on a value judgment made by the team.
+In relation to the dose ranging studies, the team would conduct them hoping for a dose response.
+Following discovery of a plateau starting at 25mg or 10mg, there would very likely be a subsequent dose ranging study which included 5mg.
+The team would include a 5mg dose in this study hoping to see a dose response but that does not mean they would have a reasonable expectation that 5mg would produce a clinically relevant effect at all nor one with minimal side effects.
+Assuming a 5mg/day dose of tadalafil was tested, it would not be tested with a reasonable expectation of success. v) Considering unexpected or surprising results, the position is as follows.
+The path to a 5mg dose requires the discovery of new information such as the half life and the IC50 vs PDE6.
+That information would inevitably be found in any clinical programme.
+The path includes an important result which is unexpected even if it is not actually surprising, ie the plateau in the dose response from 10 to 100mg.
+There is also a surprising result: the existence of a useful effect with reduced side effects.
+The claimed 5mg/day dose has that property. vi) A number of value judgments would be required of a skilled team in a programme which reaches the claimed invention.
+One is to define the level of clinical effect to be regarded as relevant.
+Another is to embark on investigating daily dosing.
+An important value judgment is what to do when an unexpected plateau in the dose response has been identified as the same time as a marketable dose.
+He therefore concluded that claim 7 of the 181 patent involves an inventive step.
+The Court of Appeal reached a contrary conclusion and allowed the appeal on the ground that claims 1, 7 and 10 were invalid for lack of inventive step.
+In the leading judgment, Kitchin LJ addressed the claimants case that, in the light of Daugan, it was obvious to take tadalafil forward into routine pre clinical and clinical trial programme to assess its use as an oral treatment for sexual dysfunction.
+The claimants argued that nearly all dosage regimes in a Swiss form claim will be obvious: Actavis UK Ltd v Merck & Co Inc [2008] EWCA Civ 444; [2009] 1 WLR 1186, Jacob LJ at para 32.
+A 5mg daily dose would be used in patients in the course of that programme and would reveal that it was a safe, tolerable and effective treatment.
+In other words, it would reveal the invention.
+The alleged invention was merely the product of standard practice in a routine clinical trials process and the purpose of Phase IIb studies was to provide an understanding of the dose response relationship.
+Lillys answer was that at the start of the programme it was not obvious to try a 5mg dose because the skilled team would have no idea if it would be a safe, tolerable and effective treatment.
+The skilled team had to make a series of value judgements in order to arrive at the invention and would have had no expectation that the 5mg dose would be efficacious or that it would have reduced side effects.
+Kitchin LJ stated, at paras 131 135, that it was not the law that investigations into appropriate dosage regimes cannot yield patentable inventions and that Jacob LJ had not suggested otherwise in Actavis v Merck.
+The statutory task of the court was to have regard to all the relevant circumstances in order to answer the single question: was it obvious to the skilled but unimaginative addressee in light of the prior art and the common general knowledge to make a product or carry out a process falling within the claim? He affirmed that the judge would have had this well in mind.
+Accordingly, where no question of principle was involved, an appellate court had to be very cautious in differing from a judges evaluation.
+Nonetheless, he held that claim 1 was invalid for obviousness.
+It had no purpose limitation and encompassed a unit dosage composition comprising 1mg to 5mg of tadalafil which was suitable for administration up to a maximum total dose of 5mg per day but which was intended and was in fact used for administration of a higher per day total dose.
+On the judges findings, given Daugan, it was obvious to develop such a composition and the judge should have so found.
+I do not understand Lilly to challenge this finding in this appeal.
+Instead, the battleground relates to claims 7 and 10.
+In relation to those claims, the debate in the Court of Appeal appears to have focussed on the notional skilled teams approach to the Phase II trial.
+Kitchin LJ recorded Lillys case that, having carried out the initial Phase IIb study, which would have found the 25mg dose on demand to be safe and efficacious, the skilled team needed to go no further but if they chose to do so, would test a 10mg dose before deciding whether to go further and test a 5mg dose.
+The skilled team also had to decide whether to test daily dosing.
+There were therefore various possible avenues of research, involving value judgements and it was not inevitable that the skilled team would investigate lower doses.
+Kitchin LJ accepted that it was relevant to consider whether the skilled team, starting with Daugan, would be faced with various possible avenues of research.
+He recognized that the skilled team would be faced with choices when embarking on Phase II studies, including how to proceed with the dose ranging studies and whether to study on demand or daily dosing.
+But in relation to the latter decision, he pointed out that the judge had found that the Phase I trial would have revealed the half life of tadalafil and that the team would have decided to pursue both on demand and daily dosing in Phase II.
+In relation to the former decision, Kitchin LJ pointed out that the judge had found that the team would very likely investigate the 5mg dose of tadalafil after the first or, in the case of on demand dosing, a possible second dose ranging study.
+This finding was supported by the purpose of dose ranging studies, which was to ascertain the dose response relationship of the drug, and the fact that, so long as the study showed the IC50 remaining on the upper therapeutic plateau, that dose response relationship had not been found.
+Further, it was consistent with the evidence of the expert clinical pharmacologists, Mr Muirhead and Dr Saoud, and Kitchin LJ quoted the latters evidence on cross examination that, having discovered the therapeutic plateau, it was a no brainer to test a lower dose and that the skilled team would have done so.
+Kitchin LJ therefore rejected the idea that the skilled team would have been faced with a series of parallel avenues of studies and would have no expectation that any one of them would prove fruitful.
+Further, the team would have addressed both on demand and daily dosing and each avenue of inquiry would be very likely to lead the team to the invention.
+Kitchin LJ held that the judge should not have attached weight to the fact that a 5mg dose was considerably less than the 50mg dose which would have been used in Phase IIa, because the Phase IIb tests were carried out for a different purpose, that is to ascertain the dose response relationship.
+Nor should the judge have attached weight to the conclusion that a 5mg dose would not be tested in the first Phase IIb study because he had also found that the team would very likely investigate it afterwards: the impetus to investigate lower doses would have remained because the purpose of the Phase IIb study had not been fulfilled.
+The finding that the skilled team could not predict at the outset that a 5mg dose would be safe and efficacious was of little weight because at least one of the purposes of the Phase IIb studies is to understand better the dose response relationship of the drug and so identify the appropriate dose for the target population.
+Similarly the judge was wrong to attach weight to the conclusion that the team would not have an expectation of success when testing the 5mg dose: the judge had held that the team were very likely to test the 5mg dose as part of the dose ranging study but it was hard to see why they would have done so unless they had a reasonable expectation that it would assist them better to understand the dose response relationship.
+Kitchin LJ also held that little weight could be attached to the fact that it was surprising (a) that there was a therapeutic plateau from 10mg to 100mg, and (b) that a 5mg per day dose was efficacious and had reduced side effects.
+While the discovery of a surprising or unexpected technical effect may be suggestive of invention, in this case the discovery of the therapeutic plateau and the efficacy of the 5mg dose was the product of a routine trial programme and the unexpected reduced side effects of the 5mg dose was a bonus effect which did not cause the 5mg dose to cease to be obvious.
+He also concluded that the value judgments to which the judge referred in para 343(vi) of his judgment (para 38 above) provided no effective support for the judges conclusion in the face of his critical finding that it was very likely that the team would test the 5mg dose.
+Kitchin LJ summarised his conclusions in this way, at para 152: Drawing the threads together, I am satisfied that Mr Speck has made good his criticisms of the judges reasoning.
+The judge has lost sight of the fact that, on his own findings, the claimed invention lies at the end of the familiar path through the routine pre clinical and clinical trials process.
+The skilled but non inventive team would embark on that process with a reasonable expectation of success and in the course of it they would carry out Phase IIb dose ranging studies with the aim of finding out, among other things, the dose response relationship.
+It is very likely that in so doing they would test a dose of 5mg tadalafil per day and, if they did so, they would find that it is safe and efficacious.
+At that point they would have arrived at the claimed invention.
+In my judgment claims 7 and 10 are therefore invalid.
+Floyd and Lewison LJJ issued concurring judgments to which I will refer in the discussion below.
+Mr Waughs challenge to the judgment of the Court of Appeal can be boiled down to one central submission: the statutory question in section 3 of the 1977 Act is whether the claimed invention was obvious at the priority date.
+This straightforward approach to the assessment of obviousness, he submitted, required the court to look at the invention set out in the relevant claim or claims of the patent and ask itself whether that asserted invention was obvious to the notional skilled but uninventive team at the priority date having regard to the state of the art at that date.
+Therefore, the question which the Court of Appeal should have asked was whether at the priority date, before the skilled team embarked on its investigation, it was obvious in the light of Daugan, and without knowledge of the alleged invention, that a 5mg per day dose of tadalafil would be a safe and effective treatment, with minimal side effects, for sexual dysfunction.
+The Court of Appeal erred by not adopting that approach and instead by holding that the invention was obvious, because the claimed invention was the product of a familiar and routine path of pre clinical and clinical research, in which each step was likely to follow the outcome of the prior step.
+This erroneous approach failed to address the question whether it was obvious to try that low dose because there was a reasonable expectation of success at the outset.
+It was also in conflict with the approach of the EPO which adopted a problem and solution analysis.
+Costly and time consuming research which led to an unexpected technical effect will be patentable, whether such work is routine or not.
+The Court of Appeal, which accepted the trial judges findings of fact, was not entitled to overrule his analysis.
+Mr Speck sought to answer this case by making seven propositions.
+They were, first, that patent law is concerned with technical information which is of use industrially.
+A technical contribution is the difference between what a skilled person is enabled to do (a) in light of the state of the art and (b) with the teaching of the patent.
+Secondly, there was a symmetry or balance in the patent system which required an enabling disclosure, in other words a technical contribution, as the basis of a patent.
+Thirdly, the fundamental principle underlying the grant of a monopoly through a patent is that the monopoly must be commensurate with that technical contribution.
+The monopoly cannot cover that which the skilled person is already able to do or make, including obvious modifications or additions to the state of the article Those he described as the skilled persons repertoire.
+Fourthly, if all that a skilled person discovers is more information about products or processes that are already within that notional persons repertoire, there is no basis for the grant of a patent because that information does not add to the products or processes which the skilled person can make or do.
+Fifthly, the principle advanced by Lilly, that it is not permissible to take into account information not known at the priority date, is contrary to the basic scheme of patent law.
+Sixthly, if that principle were correct, it would apply whether or not the research revealed an unexpected benefit.
+Seventhly, patent law excludes from consideration information which is routinely ascertained using routine methods as part of the state of the art and using them for a routine purpose towards a routine end: in this case the implementation of the Daugan patent.
+Discussion i)
+I am not persuaded that the law adopts the extreme position of either submission.
+Lillys approach would require the court to disregard the work which a skilled person would carry out after the priority date in order to implement the teaching of the Daugan patent.
+That approach, as Mr Speck submitted, is contrary to the basic scheme of patent law.
+Actaviss approach in its reliance on the skilled persons repertoire, in other words on what the skilled person could already do, cannot be a general test for obviousness as it would render irrelevant many of the The approach to obviousness factors to which the courts have had regard in the assessment of obviousness, some of which I mention below.
+Since the enactment of the 1623 Statute of Monopolies, which prohibited the grant of a monopoly by the Crown but in section VI created an exception for a patent for the sole working or making of any manner of new Manufactures to the true and first Inventor and Inventors of such Manufactures , the purpose of a grant of a patent has been to encourage innovation.
+The monopoly granted by the patent rewards the inventor by enabling him or her to charge a higher price than would have been possible if there had been competition.
+The patent bargain is this: the inventor obtains a monopoly in return for disclosing the invention and dedicating it to the public for use after the monopoly has expired.
+Lord Mansfield stated the point with his characteristic succinctness in Liardet v Johnson (1778): The condition of giving encouragement is this: that you must specify upon record your invention in such a way as shall teach an artist, when your term is out, to make it and to make it as well by your directions: for then at the end of the term, the public shall have benefit of it.
+The inventor has the benefit during the term, and the public have the benefit after (quoted in Hulme, On the History of Patent Law (1902) 18 LQR 280, 285 and cited by Lord Sumption in the leading judgment in Generics (UK) Ltd (trading as Mylan) v Warner Lambert Co LLC [2018] UKSC 56; [2019] Bus LR 360, para 17).
+This overarching principle has survived the amendment of UK patent law after accession to the European Patent Convention.
+The EPO Technical Board of Appeal has confirmed the principle in, for example, its decision of 12 September 1995 in Agrevo/Triazoles (Case T 939/92) [1996] EPOR 171, para 2.4.2 in which it stated: it has for long been a generally accepted legal principle that the extent of the patent monopoly should correspond to and be justified by the technical contribution to the article [T]his general legal principle was applied in relation to the extent of the patent protection that was justified by reference to the requirements of articles 83 and 84 EPC, the same legal principle also governs the decision that is required to be made under article 56 EPC, for everything falling within a valid claim has to be inventive.
+See also EXXON/Fuel Oils (Case T 409/91) [1994] OJ EPO 653 at paras 3.3 and 3.4.
+Articles 83 and 84 of the EPC are concerned with the sufficiency of the disclosure of the invention in the patent application and the support which the description gives to the claims in that application.
+Section 14(3) and (5) of the 1977 Act correspond to those requirements.
+Article 56 of the EPO is concerned with the inventive step and provides: An invention shall be considered as involving an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the article Section 3 of the 1977 Act, which I set out below, corresponds to this requirement.
+As is well known, section 130(7) of the 1977 Act declares that specified sections of the 1977 Act are so framed as to have, as nearly as practicable, the same effects in the United Kingdom as the corresponding provisions of the European Patent Convention, the Community Patent Convention and the Patent Co operation Treaty have in the territories to which those Conventions apply.
+Those sections include the sections which govern (a) the principal conditions of validity, that is to say novelty (section 2), inventive step (section 3), capability of industrial application (section 4) sufficiency of disclosure and the support of the claim by the description in the patent application (section 14(3) and (5)), and (b) the power of the court to revoke a patent on application, on grounds which include that the invention is not a patentable invention (which is a reference via section 1 to inter alia sections 2, 3 and 4) and inadequate disclosure in the patent application to enable the skilled person to perform the invention (section 72(1)).
+It is also well established in the jurisprudence of courts in the United Kingdom that our courts, although not bound to do so, should normally follow the settled jurisprudence of the EPO (especially decisions of its Enlarged Board of Appeal) on the interpretation of the European Patent Convention in the interests of uniformity, especially when the question is one of principle: Merrell Dow Pharmaceuticals Inc v H N Norton & Co Ltd [1996] RPC 76, 82 per Lord Hoffmann; Gales Application [1991] RPC 305, 322 per Nicholls LJ; Actavis UK Ltd v Merck & Co Inc [2009] 1 WLR 1186, paras 45 48 per Jacob LJ; Conor Medsystems Inc v Angiotech Pharmaceuticals Inc [2008] UKHL 49; [2008] 4 All ER 621, para 3 per Lord Hoffmann; Generics (UK) Ltd v H Lundbeck A/S [2009] UKHL 12; [2009] 2 All ER 955, para 35 per Lord Walker of Gestingthorpe; Dr Reddys Laboratories (UK) Ltd v Eli Lilly and Co Ltd [2010] RPC 9, para 102 per Lord Neuberger of Abbotsbury MR; Eli Lilly and Co v Human Genome Sciences Inc [2011] UKSC 51; [2012] 1 All ER 1154; [2012] RPC 6, paras 83 87 per Lord Neuberger.
+The general principle that the extent of the patent monopoly should correspond to and be justified by the actual technical contribution to the art is thus part of the jurisprudence of both the EPO and the UK courts and, as Lord Sumption observed in Generics v Warner Lambert (above), para 17, the principal conditions of validity, novelty, inventive step, industrial application and sufficiency are all, in one way or another, directed to satisfying the principle thus expressed.
+There is therefore a balance or symmetry in patent law, as Mr Speck submitted.
+This case is concerned with the condition which requires there to be an inventive step.
+Section 3 of the 1977 Act provides: An invention shall be taken to involve an inventive step if it is not obvious to a person skilled in the art, having regard to any matter which forms part of the state of the art by virtue only of section 2(2) above (and disregarding section 2(3) above).
+Section 2(2) provides: The state of the art in the case of an invention shall be taken to comprise all matter (whether a product, a process, information about either, or anything else) which has at any time before the priority date of that invention been made available to the public (whether in the United Kingdom or elsewhere) by written or oral description, by use or in any other way.
+These statutory provisions mandate the court to assess whether an invention is obvious by having regard to the state of the art at the priority date of the invention.
+If the invention is not obvious to the skilled person at that date, section 3 deems the invention to involve an inventive step.
+The notional skilled person, while having the compendious knowledge of the state of the art which section 2(2) requires, has no inventive capacity.
+But that does not mean that the skilled person has no skill to take forward in an uninventive way the teaching of the prior article In this case the notional skilled team comprises the clinical pharmacologist and the clinician specialising in urology (para 17 above).
+That notional team is treated as exercising the professional skills of its members in responding to the teaching of the Daugan patent.
+It follows that uninventive steps which the skilled team would take after the priority date to implement the Daugan patent are not excluded from consideration in assessing the obviousness of the alleged invention at the priority date.
+In addressing the statutory question of obviousness in section 3 of the 1977 Act it is common for English courts to adopt the so called Windsurfing/Pozzoli structure which asks these questions: Identify the notional person skilled in the art; Identify the relevant common general knowledge (1) (a) (b) of that person; Identify the inventive concept of the claim in question (2) or if that cannot readily be done, construe it; (3) Identify what, if any, differences exist between the matter cited as forming part of the state of the art and the inventive concept of the claim or the claim as construed; (4) Viewed without any knowledge of the alleged invention as claimed, do those differences constitute steps which would have been obvious to the person skilled in the art or do they require any degree of invention? (Pozzoli SPA v BDMO SA [2007] EWCA Civ 588; [2007] FSR 37, para 23 per Jacob LJ).
+The fourth question is the statutory question and the first three questions or tasks, the second and third of which involve knowledge and consideration of the invention, are a means of disciplining the courts approach to that fourth question: DSM NVs Patent [2001] RPC 35, para 55 per Neuberger J; Actavis UK Ltd v Novartis AG [2010] EWCA Civ 82; [2010] FSR 18, para 21 per Jacob LJ.
+In this case the trial judge adopted the Pozzoli approach.
+There is no dispute about the first question.
+Mr Waugh emphasises the focus of the second question on the wording of the claim, as I shall discuss below.
+An alternative approach which the EPO often adopts, is the so called problem and solution approach.
+The EPO has described the approach in these terms: the Boards of Appeal consistently decide the issue of obviousness on the basis of an objective assessment of the technical results achieved by the claimed subject matter, compared with the results obtained according to the state of the article It is then assumed that the inventor did in fact seek to achieve these results and, therefore, these results are taken to be the basis for defining the technical problem (or, in other words, the objective) of the claimed invention.
+The next step is then to decide whether the state of the art suggested the claimed solution of this technical problem in the way proposed by the patent in suit (Agrevo/Triazoles (above) para 2.4.3) The test is helpfully summarised in the EPOs Guidelines for Examination in the EPO (November 2017) (Part G Chapter VII) para 5: Problem and solution approach In order to assess inventive step in an objective and predictable manner, the so called problem and solution approach should be applied.
+Thus deviation from this approach should be exceptional.
+In the problem and solution approach there are three main stages: (i) (ii) establishing the objective technical problem to be solved, and (iii) considering whether or not the claimed invention, starting from the closest prior art and the objective technical problem, would have been obvious to the skilled person. determining the closest prior art, Again, Mr Waugh urges the application of this approach because of the emphasis which, he submits, it places on the terms of the claim.
+While both approaches focus on the inventive concept put forward in the claims, neither approach should be applied in a mechanistic way.
+Both are glosses on the text of section 3 of the 1977 Act and article 56 of the EPC and neither require a literalist approach to the wording of the claim in identifying the inventive concept.
+In Conor Medsystems Inc v Angiotech Pharmaceuticals Inc [2008] UKHL 49; [2008] RPC 28; [2008] 4 All ER 621, at para 42 Lord Hoffmann endorsed the fact specific approach which Kitchin J set out in Generics (UK) Ltd v H Lundbeck [2007] RPC 32, para 72 where he stated: The question of obviousness must be considered on the facts of each case.
+The court must consider the weight to be attached to any particular factor in the light of all the relevant circumstances.
+These may include such matters as the motive to find a solution to the problem the patent addresses, the number and extent of the possible avenues of research, the effort involved in pursuing them and the expectation of success.
+Kitchin Js list of factors is illustrative and not exhaustive.
+Another factor which needs to be considered in the present case is the routineness of the research.
+Much of the interest and controversy which the Court of Appeals judgment has generated relates to how people have understood or misunderstood the significance which that court has attached to the routine nature of the pre clinical and clinical research which I have described.
+Again, I discuss this below (paras 102 104).
+Factors which are relevant considerations in the present case include the following.
+First, it is relevant to consider whether at the priority date something was obvious to try, in other words whether it was obvious to undertake a specific piece of research which had a reasonable or fair prospect of success: Conor v Angiotech (above) para 42 per Lord Hoffmann; MedImmune Ltd v Novartis Pharmaceuticals UK Ltd [2012] EWCA Civ 1234; [2013] RPC 27, paras 90 and 91 per Kitchin LJ.
+In many cases the consideration that there is a likelihood of success which is sufficient to warrant an actual trial is an important pointer to obviousness.
+But as Kitchin LJ said in Novartis AG v Generics (UK) Ltd [2012] EWCA Civ 1623, para 55, there is no requirement that it is manifest that a test ought to work; that would impose a straightjacket which would preclude a finding of obviousness in a case where the results of an entirely routine test are unpredictable.
+As Birss J observed in this case (para 276), some experiments which are undertaken without any particular expectation as to result are obvious.
+The relevance of the obvious to try consideration and its weight when balanced against other relevant considerations depend on the particular facts of the case.
+Secondly, it follows that the routine nature of the research and any established practice of following such research through to a particular point may be a relevant consideration which is weighed against the consideration that the claimed process or product was not obvious to try at the outset of a research programme.
+Again, it is only one of several factors to be weighed in the assessment and it has no primacy and certainly no paramount status as a consideration.
+Thirdly, the burden and cost of the research programme is relevant.
+But the weight to be attached to this factor will vary depending on the particular circumstances.
+This appeal concerns a pharmaceutical patent claiming as an invention a dosage regime.
+The cost and effort involved in bringing a drug to market through pre clinical and clinical trials are notorious.
+Mr Waugh referred to the extrajudicial writing of Sir Hugh Laddie, Patents whats invention got to do with it? (in Intellectual property in the new millennium: essays in honour of William R Cornish (2004), p 91 et seq), in which he stated, at p 92: In this field it is apparent that, without patents, few new products would be marketed.
+The expense in producing a new pharmaceutical is in the research and development stage.
+Normally, once it has been discovered and given regulatory approval, the manufacture of a new pharmaceutical will be comparatively cheap and its replication by competitors easy.
+Without the protection of patents, there will be no ability to recoup the cost of the research and development, let alone fund such activities in the future.
+No private company is going to enter this business unless it can see a reasonable prospect of obtaining a return on investment.
+The need to facilitate expensive pharmaceutical research is an important policy consideration for legislators and others involved in intellectual property law.
+It was a factor behind the creation of the Swiss form claim and the EPC 2000 claim as well as the supplementary protection certificate regime under Regulation (EC) 469/2009, which is available after market authorisation to give the patent owner the protection of the patent for up to 15 years, and the data exclusivity regime which Directive 2001/83/EC (article 10) and Regulation (EC) 726/2004 (article 14), which may confer ten years of exclusive marketing protection against competition from generic manufacturers.
+But the effort involved in research is only one of several factors which may be relevant to the answer to the statutory question of obviousness.
+Fourthly, the necessity for and the nature of the value judgments which the skilled team would have in the course of a testing programme are relevant considerations as both the trial judge and the Court of Appeal held.
+Fifthly, the existence of alternative or multiple paths of research will often be an indicator that the invention contained in the claim or claims was not obvious.
+If the notional skilled person is faced with only one avenue of research, a one way street, it is more likely that the result of his or her research is obvious than if he or she were faced with a multiplicity of different avenues.
+But it is necessary to bear in mind the possibility that more than one avenue of research may be obvious.
+In Brugger v Medic Aid Ltd (No 2) [1996] RPC 635, 661, Laddie J stated: [I]f a particular route is an obvious one to take or try, it is not rendered any less obvious from a technical point of view merely because there are a number, and perhaps a large number, of other obvious routes as well.
+I agree.
+As a result, the need to make value judgments on how to proceed in the course of a research programme is not necessarily a pointer against obviousness.
+Sixthly, the motive of the skilled person is a relevant consideration.
+The notional skilled person is not assumed to undertake technical trials for the sake of doing so but rather because he or she has some end in mind.
+It is not sufficient that a skilled person could undertake a particular trial; one may wish to ask whether in the circumstances he or she would be motivated to do so.
+The absence of a motive to take the allegedly inventive step makes an argument of obviousness more difficult.
+In Agrevo/Triazoles (above), para 2.4.2, the Technical Board of Appeal of the EPO, having referred to the principle that the extent of the patent monopoly should correspond to and be justified by the technical contribution to the art (see para 54 above) made the point in these terms: Moreover, in the Boards judgment, it follows from this same legal principle that the answer to the question what a skilled person would have done in the light of the state of the art depends in large measure on the technical result he had set out to achieve.
+In other words, the notional person skilled in the art is not to be assumed to seek to perform a particular act without some concrete technical reason: he must, rather, be assumed to act not out of idle curiosity but with some specific technical purpose in mind.
+This forms the basis of the EPOs problem and solution approach to obviousness which I have quoted in para 61 above.
+Seventhly, the fact that the results of research which the inventor actually carried out are unexpected or surprising is a relevant consideration as it may point to an inventive step, at least in so far as it suggests that a test was not obvious to try or otherwise the absence of a known target of the research which would make it less likely that the skilled person would conduct a test.
+Eighthly, the courts have repeatedly emphasised that one must not use hindsight, which includes knowledge of the invention, in addressing the statutory question of obviousness.
+That is expressly stated in the fourth of the Windsurfing/Pozzoli questions.
+Where the pattern of the research programme which the notional skilled person would undertake can clearly be foreseen, it may be legitimate to take a step by step analysis.
+In Gedeon Richter plc v Bayer Schering Pharma AG [2011] EWHC 583 (Pat); [2011] Bus LR D153, Floyd J stated (para 114): I think that the guiding principle must be that one has to look at each putative step which the skilled person is required to take and decide whether it was obvious.
+Even then one has to step back and ask an overall question as to whether the step by step analysis, performed after the event, may not in fact prove to be unrealistic or driven by hindsight.
+The obvious danger of a step by step analysis is that the combination of steps by which the inventor arrived at his invention is ascertained by hindsight knowledge of a successful invention.
+Lord Diplock warned against this in Technograph Printed Circuits Ltd v Mills & Rockley (Electronics) Ltd [1972] RPC 346, 362, a warning which judges have reiterated in later cases.
+I am not persuaded by Mr Specks suggestion that Technograph is concerned only with a case in which a step by step approach was constructed by counsel on cross examination in the absence of evidence of routine steps of research.
+The case contains a wider warning against the use of hindsight and has been interpreted as doing so.
+I agree with Birss Js analysis in Hospira UK Ltd v Genentech Inc [2014] EWHC 3857 (Pat), para 240, where he stated: The particular point made in Technograph was that it was wrong to find an invention was obvious if it was only arrived at after a series of steps which involve the cumulative application of hindsight.
+In some circumstances success at each step in a chain is a necessary predicate for the next one and it is only the hindsight knowledge of the invention as the target which could motivate a skilled person to take each step without knowledge about the next one.
+In a situation like that, Technograph is important.
+But the Technograph warning has no bearing in a case in which the steps which the notional skilled person would take can readily be ascertained without the taint of hindsight.
+Ninthly, it is necessary to consider whether a feature of a claimed invention is an added benefit in a context in which the claimed innovation is obvious for another purpose.
+In Hallen & Co v Brabantia (UK) Ltd [1991] RPC 195 the Court of Appeal was concerned with an alleged selection patent for a self pulling corkscrew which had a helix coated with polytetrafluoroethylene (PTFE) which was a known friction reducing material.
+At the priority date PTFE had been used for several years to coat the helix of a twin lever type corkscrew to aid its penetration into the cork.
+The PTFE coated helix had this effect also on the self pulling corkscrew, a fact which was obvious at the priority date.
+The PTFE coat when applied to a self pulling corkscrew also had a non obvious benefit of making a striking improvement in the extraction of the cork.
+The trial judge, Aldous J, held that the patent was invalid on the ground of obviousness because it was obvious to select the features of the claim for the first purpose notwithstanding that it was not obvious for the other purpose: [1989] RPC 307, 326 327.
+The Court of Appeal agreed with the judge, holding (pp 215 216) that it was self evident that a PTFE coating would improve the penetration by any corkscrew and that the golden bonus or added benefit of the dramatic improvement in extraction of the cork would not found a valid patent as the claimed innovation was obvious for another purpose.
+Mr Waugh does not challenge this principle but submits that the 181 patent does not involve such an added benefit.
+ii) Dosage patents
+The courts are enjoined to have regard to all the relevant facts of particular case in assessing whether an alleged invention is obvious.
+One of those facts is the nature of the invention.
+A tenth consideration, therefore, is that here we are concerned with a dosage patent with a Swiss form claim and an EPC 2000 claim.
+The possibility that a dosage patent with such claims may be valid has been recognized both by the EPO and in the United Kingdom courts.
+In decision Abbott Respiratory LLC/Dosage regime (G 0002/08) EP:BA:2010:G000208.20100219 the Enlarged Board of Appeal of the EPO decided that, when it was already known to use a medicament to treat a particular illness, it was possible to obtain a patent for a new and inventive dosage regime for that medicament to treat that illness.
+In so finding the Enlarged Board decided (a) that the dosage patent did not breach the prohibition against the patenting of medical treatment in article 53(c) of the EPC and (b) that a novel dosage regime for the treatment of the same illness could be a specific use under article 54(5) of the European Patent Convention.
+Recognizing the risks of undue prolongation of patent rights, the Enlarged Board confirmed that the whole body of jurisprudence relating to the assessment of novelty and inventive step generally also applies.
+In relation to the assessment of obviousness this included consideration whether the dosage regime caused a new technical effect (para 6.3).
+The EPO has therefore not sanctioned any relaxation of the tests of obviousness in relation to dosage patents.
+In the United Kingdom the Court of Appeal addressed the question of dosage patents in Actavis UK Ltd v Merck & Co Inc [2009] 1 WLR 1186.
+The case concerned an application to revoke a patent which included a Swiss form claim for the use of a specified dose of a known and already patented substance, finasteride, in the treatment of androgenic alopecia.
+The Court of Appeal reversed the trial judges revocation of the patent, holding (para 29) that there was no policy reason why a novel non obvious dosage regime, which was the product of expensive and unpredictable research, should not be rewarded with a patent of a Swiss form claim.
+Jacob LJ, who delivered the judgment of the court, added this significant qualification (para 32): So holding is far from saying that in general just specifying a new dosage regime in a Swiss form claim can give rise to a valid patent.
+On the contrary nearly always such dosage regimes will be obvious it is standard practice to investigate appropriate dosage regimes.
+Only in an unusual case such as the present (where, see below, treatment for the condition with the substance had ceased to be worth investigating with any dosage regime) could specifying a dosage regime as part of the therapeutic use confer validity on an otherwise invalid claim.
+The reason for this qualification is no mystery.
+The target of the skilled persons research is in large measure pre determined.
+As Jacob LJ stated (para 109), the skilled person would aim for a dose as low as possible consistent with effectiveness.
+That would normally be the appropriate dosage regime.
+I recognize and respect Birss Js finding of fact that there was no defined standard of minimal efficacy in relation to ED and that this would require the skilled team to make a value judgment (para 36 above).
+But he also found that it was common general knowledge that regulators were often interested in and could require evidence of the minimum effective dose (para 83 of his judgment) and that the skilled team would be familiar with multiple dose ranging studies as necessary as a generality (para 327 of his judgment).
+In my view, the inventiveness of the dosage regime falls to be assessed in that context.
+iii) The role of the appellate court
+Finally, before addressing directly the question whether the Court of Appeal was entitled to reverse Birss Js finding of non obviousness, I remind myself of the limits of an appellate courts power to overturn the evaluation of a trial judge in this field.
+Where inferences from findings of primary fact involve an evaluation of numerous factors, the appropriateness of an intervention by an appellate court will depend on variables including the nature of the evaluation, the standing and experience of the fact finding judge or tribunal, and the extent to which the judge or tribunal had to assess oral evidence: South Cone Inc v Bessant, In re Reef Trade Mark [2002] EWCA Civ 763; [2003] RPC 5, paras 25 28 per Robert Walker LJ.
+An experienced patent judge faced with a challenge to a patent on the ground of obviousness, and who has heard oral evidence including cross examination, carries out an evaluation of all the relevant factors, none of which alone is decisive but each of which must be weighed in the balance in reaching a conclusion.
+In Biogen Inc v Medeva plc [1997] RPC 1, 45, Lord Hoffmann emphasised the need for appellate caution in reversing the judges evaluation of the facts where the application of a legal standard involved no question of principle but was simply a matter of degree.
+He held that it would be wrong to interfere with the judges assessment if no question of principle were involved.
+What is a question of principle in this context? An error of principle is not confined to an error as to the law but extends to certain types of error in the application of a legal standard to the facts in an evaluation of those facts.
+What is the nature of such an evaluative error? In this case we are not concerned with any challenge to the trial judges conclusions of primary fact but with the correctness of the judges evaluation of the facts which he has found, in which he weighs a number of different factors against each other.
+This evaluative process is often a matter of degree upon which different judges can legitimately differ and an appellate court ought not to interfere unless it is satisfied that the judges conclusion is outside the bounds within which reasonable disagreement is possible: Assicurazioni Generali SpA v Arab Insurance Group (Practice Note) [2002] EWCA Civ 1642; [2003] 1 WLR 577, paras 14 17 per Clarke LJ, a statement which the House of Lords approved in Datec Electronic Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23; [2007] 1 WLR 1325, para 46 per Lord Mance.
+Thus, in the absence of a legal error by the trial judge, which might be asking the wrong question, failing to take account of relevant matters, or taking into account irrelevant matters, the Court of Appeal would be justified in differing from a trial judges assessment of obviousness if the appellate court were to reach the view that the judges conclusion was outside the bounds within which reasonable disagreement is possible.
+It must be satisfied that the trial judge was wrong: see, by way of analogy, In re B (A Child) (Care Proceedings Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1911, paras 90 93 per Lord Neuberger, para 203 per Lady Hale. iv) Were claims 7 and 10 of the 181 patent obvious?
+The patent bargain which Lord Mansfield described and the EPO has used as an overarching principle (paras 53 and 54 above) underpins and creates a symmetry between the various provisions of the 1977 Act which govern the validity of a patent (para 55 above).
+Bearing in mind that symmetry, the starting point in the assessment of obviousness in this case is the Daugan patent.
+Its validity is not contested.
+Indeed, Lillys case assumes its validity.
+But to be valid it must both disclose and enable.
+It must disclose the invention, that is that tadalafil may be used as a PDE5 inhibitor for the treatment of ED, to the notional skilled person who uses common general knowledge in construing the patent.
+It must also enable the notional skilled person to perform the invention using the disclosed matter, common general knowledge, and that persons uninventive skill in making trial and error experiments.
+In Synthon BV v SmithKline Beecham plc [2005] UKHL 59; [2006] 1 All ER 685, the House of Lords addressed and distinguished the concepts of disclosure and enablement in the context of a challenge to the validity of a patent on the ground of lack of novelty because of anticipation by a prior patent application under section 2(3).
+But their Lordships discussion of the need for both disclosure and enablement is equally relevant to the validity of a patent under sections 14(3) and 72(1)(c) as Lord Hoffmann stated at para 27 and Lord Walker at paras 63 and 64.
+One begins therefore with the assumption that the Daugan patent has enabled the skilled person to perform the invention of the use of tadalafil for the treatment of ED.
+The notional skilled persons task is to implement the ex hypothesi valid patent.
+That involves finding the appropriate dosage regime having regard to safety, tolerability and effectiveness.
+The procedures to achieve that end are familiar and routine.
+In my view it is important to see the Court of Appeals discussion of familiar routine research in this case in this context (paras 102 104 below).
+In assessing whether the Court of Appeal was entitled to reject the trial judges evaluation it is important to recognize that the Court of Appeal did not reverse any of Birss Js findings of primary fact.
+Both courts accepted that it was obvious for the skilled team to pursue the pre clinical and clinical research in order to implement Daugan.
+Motive was clearly present.
+It was not in dispute that the target of that research was to identify the appropriate dosage regime for tadalafil in the treatment of ED.
+It was accepted that the skilled team were looking for a dose response relationship and that they would know that, as a generality, multiple dose ranging studies were necessary.
+There was no challenge to the finding that the discovery of a therapeutic plateau between 25mg and 100mg doses would have surprised the skilled team.
+Birss J, without relying on hindsight, held that it was very likely that the skilled team would research further by testing doses of 10mg and 5mg.
+That finding was amply justified as both Mr Muirhead and Lillys expert, Dr Saoud, agreed that the skilled team would not stop the dose ranging studies when they had revealed that therapeutic plateau.
+Indeed, as Kitchin LJ recorded, Dr Saoud accepted that the decision to test the lower doses, including the 5mg dose, was a no brainer.
+In short, the skilled team, having embarked on the Phase IIb tests, would have continued their search for a dose response relationship, because the purpose of the Phase IIb study had not been fulfilled.
+The Court of Appeal was correct to attach significance to this central finding because it undermined several of the factors which Birss J placed in the balance as pointing to non obviousness in para 343 of his judgment.
+The fact that a 5mg dose was so much lower than the 50mg dose, which was recommended for sildenafil, mentioned in the Daugan patent for tadalafil, and used in the notional skilled teams Phase IIa tests, is neither here nor there.
+The lack of an expectation of efficacy at a 5mg dose is a factor of little weight if, as was found, the skilled team would be very likely to study such a dose in the search for a dose response relationship.
+For the same reason the fact that the effectiveness of tadalafil at a dose of 5mg was a surprise can carry little, if any, weight.
+Similarly, the finding that there was an important value judgment to be made when the therapeutic plateau was identified at the same time as a marketable dose can bear little weight when there is a finding, which is not tainted by hindsight, that the skilled team would continue their tests.
+I consider that the Court of Appeal was entitled to treat the judges failure to appreciate the logical consequences of the finding that it was very likely that the skilled team would continue the testing as an error of principle which allowed an appellate court to carry out its own evaluation.
+Lilly also argues that the daily dosing regime by which a person prescribed tadalafil can take the drug once per day rather than on demand in expectation of sexual activity was enabled by the technical effect of the drug, namely the maintenance of efficacy with minimal side effects, which was not obvious and which justified the patent.
+I disagree for two reasons.
+First, the judge correctly treated the daily dosing regime as obvious because it was the result of the inevitable discovery of the half life of tadalafil in Phase 1 of the tests.
+Secondly, claims 7 and 10 are not confined to the daily dosing regime but also cover on demand use of the drug subject to a maximum total dose of 5mg per day.
+That is fatal to this argument.
+The inventive concept by which a patentee seeks to justify his or her monopoly must apply to all embodiments falling within the claims which are said to have independent validity.
+In Brugger v Medic Aid Ltd (No 2) [1996] RPC 635, 656 Laddie J stated: It is not legitimate to define the inventive step as something narrower than the scope of the relevant claims.
+In particular it is not legitimate to identify a narrow sub group of embodiments falling within the claim and which have certain technical advantages and then to define the inventive step in terms which apply to that sub group but not the rest of the claim.
+I agree.
+A similar rule applies in the EPOs problem and solution approach in the requirement that the identified problem must be covered by all embodiments of the claim: see for example (Cognis IP Management GmBH / Satuarated dicarboxylic acids) (Case T 1014/07) EP:BA:2012:T101407.20120702, para 5.
+The daily dosing regime is not a factor which pointed against obviousness.
+Standing back from the step by step analysis, it is clear that the skilled team was engaged in the familiar and routine testing of a drug to establish the appropriate dosage regime for tadalafil in order to implement the teaching of the Daugan patent.
+That target was never in doubt.
+It was obvious to embark on that exercise and carry out tests in a routine way until that appropriate dose was ascertained.
+Those tests included the completion of the dose ranging studies which were the purpose of Phase IIb.
+The fact that tadalafil at the dose of 5mg, while remaining effective as a treatment of ED, also, and unexpectedly, had the additional benefit of reduced side effects was an added benefit which does not prevent the identification of 5mg as the appropriate dose from being obvious.
+The completion of the Phase IIb dose ranging studies led to the asserted invention.
+Mr Waugh also submits (a) that the Court of Appeal lost sight of the requirement that obviousness must be assessed by reference to the subject matter of the relevant claims a dose of tadalafil of between 1mg and 5mgs for oral administration up to a maximum total dose of 5mg per day for the treatment of sexual dysfunction and not a loose paraphrase of what the claim or the process by which the dose is discovered, and (b) that the Court of Appeals approach conflicts with the problem and solution approach which the EPO adopts.
+In support of the first submission, he refers to the statement of Kitchin LJ in MedImmune Ltd v Novartis (above), para 93, that the court must answer a relatively simple question of fact: was it obvious to the skilled but unimaginative addressee to make a product or carry out a process falling within the claim (emphasis added).
+He also refers to Lord Hoffmanns statement in Conor v Angiotech (above) para 19, that the patentee is entitled to have the question of obviousness determined by reference to his claim and not a vague paraphrase based upon the extent of his disclosure.
+I am not persuaded that, in the context of a dosage patent, it is necessary for the skilled team to identify in advance of the Phase IIb tests the specific dose which is the subject of the claim.
+Were it otherwise, many, if not most, dosage regimes would be patentable, whether the results of the tests were surprising or not, simply because the precise doses which ultimately are specified in the claim may not be sufficiently foreseeable.
+In my view, the MedImmune requirement is met if the step by step approach, without the benefit of hindsight, demonstrates that the skilled team would be very likely to pursue the tests to the point at which they would ascertain the product or process falling within the claims.
+Conor v Angiotech does not assist Lilly in this context.
+In that case the relevant claim of the patent taught the use of a stent coated with taxol in the prevention or treatment of recurrent stenosis, or restenosis, which is the constriction of an arterial channel after the insertion of a stent.
+Conor, which challenged the patent on the ground of obviousness and not on the ground of insufficiency, sought to argue by reference to the patents specification that the patent taught no more than that taxol was worth trying.
+The House of Lords rejected this challenge, directed attention to the terms of the claim, as section 125 of the 1997 Act requires, rather than the specification, and held that the specification supported that claim.
+The case is not authority for the proposition that, in all circumstances, obviousness must be assessed by reference to the precise wording of the claim.
+In relation to the second submission, that the Court of Appeals approach was in conflict with the EPOs problem and solution approach, it is important to recall Jacob LJs words in Actavis v Novartis (above) (para 26) that no one has ever suggested that the problem and solution approach is the only way to go about considering obviousness.
+Like the Windsurfing/Pozzoli approach, it provides a structured approach which may assist in avoiding the dangers of hindsight and may be more helpful in some cases than in others.
+No formula should distract the court from the statutory question: Generics (UK) Ltd v Daiichi Pharmaceutical Co Ltd [2009] EWCA Civ 646; [2009] RPC 23, para 17 per Jacob LJ.
+Further, there is considerable room for judgment and disagreement on the formulation of the objective technical problem to be solved.
+The EPOs Guidelines for Examination state (Part G Chapter VII, para 5.2): In the context of the problem and solution approach, the technical problem means the aim and task of modifying or adapting the closest prior art to provide the technical effects that the invention provides over the closest prior article The technical problem thus defined is often referred to as the objective technical problem.
+The Guidelines recognize the difficulty which a court or tribunal faces in formulating the objective technical problem and state: The objective technical problem derived in this way may not be what the applicant presented as the problem in his application.
+The latter may require reformulation, since the objective technical problem is based on objectively established facts, in particular appearing in the prior art revealed in the course of the proceedings, which may be different from the prior art of which the applicant was actually aware at the time the application was filed.
+In particular, the prior art cited in the search report may put the invention in an entirely different perspective from that apparent from reading the application only.
+It is noted that the objective technical problem must be so formulated as not to contain pointers to the technical solution, since including part of a technical solution offered by an invention in the statement of the problem must, when the state of the art is assessed in terms of that problem, necessarily result in an ex post facto view being taken of inventive activity (see T 229/85, [OJ 1987, 237]).
+The expression technical problem should be interpreted broadly; it does not necessarily imply that the technical solution is an improvement to the prior article Thus the problem could be simply to seek an alternative to a known device or process which provides the same or similar effects or is more cost effective.
+The Guidelines continue in para 5.3 to discuss the could would approach, which the EPO adopts in the problem and solution approach, stating: the point is not whether the skilled person could have arrived at the invention by adapting or modifying the closest prior art, but whether he would have done so because the prior art incited him to do so in the hope of solving the objective technical problem or in expectation of some improvement or advantage (see T 2/83) When an invention requires various steps to arrive at the complete solution of the technical problem, it should nevertheless be regarded as obvious if the technical problem to be solved leads the skilled person to the solution in a step by step manner and each individual step is obvious in the light of what has already been accomplished and of the residual task still to be solved (see T 623/97 and T 558/00).
+I am not persuaded that the problem and solution approach would necessarily give a different answer from that of the Court of Appeal.
+The closest prior art is the Daugan patent and the well established procedures of pre clinical and clinical testing.
+The problem posed by Daugan was the identification of an appropriate dosage regime.
+The EPO approach to assessing the obviousness of the claimed invention would then be to apply the could would approach, which means asking not whether the skilled person could have carried out the invention, but whether he would have done so in the hope of solving the underlying technical problem or in the expectation of some improvement or advantage: T 2/83 OJ 1984 265 (Rider/Simethicone tablet), para 7; T 1014/07 (above) paras 7 and 8.
+The tangible evidence which reveals why the skilled team would have been prompted to come upon the asserted invention is that (a) the team would not have completed the dose ranging studies which Phase IIb requires if it had stopped after the initial dose ranging studies which revealed the therapeutic plateau and (b) Dr Saouds evidence that it was a no brainer to go on with the tests.
+The judges finding that the skilled team would not have had an expectation of effectiveness at a 5mg dose does not militate against the conclusion that the team would have investigated that dose in the course of a sequence of tests which had as its purpose the solution of the underlying technical problem, which the implementation of the Daugan patent entailed.
+Foreign judgments
+The court heard submissions about the judgments of the courts of other countries which are signatories of the EPC on parallel revocation proceedings against the 181 patent.
+The claimants founded principally on the judgments in the Netherlands and Germany, in which in each case the national court revoked the patent on the ground of obviousness.
+We were also referred to judgments from other jurisdictions concerning the same patent, including Belgium and Portugal, which upheld the obviousness challenge, and Denmark, Poland and the Czech Republic, which reached a different view.
+I do not find the judgments particularly helpful.
+While consistency of approach between the domestic courts of the signatory states to the EPC on matters of principle is desirable, we are not bound by the judgments of other national courts and it is possible that national courts applying the same law may come to different conclusions for various reasons: Conor v Angiotech (above) para 3 per Lord Hoffmann; Dr Reddys Laboratories (UK) Ltd v Eli Lilly (above) paras 79 82 per Jacob LJ, para 92 per Lord Neuberger MR; Actavis UK Ltd v Eli Lilly & Co [2017] UKSC 48; [2017] RPC 21, para 52 per Lord Neuberger.
+The Dutch District Court of the Hague in Teva Pharmaceuticals Europe BV v ICOS Corpn (14 March 2018) held the patent to be invalid as obvious over Daugan and in its judgment referred in some detail to the decisions of Birss J and the Court of Appeal in this case.
+The court treated as important the objective of the Phase IIb test and Dr Saouds evidence in the English proceedings (para 4.22).
+The court recorded (para 4.24) that it had not used the problem and solution approach but that if it had, the outcome would probably not have been different: if one adopted ICOSs formulation of the problem as providing an improved dosing regime the skilled team, having ascertained the half life of tadalafil, would have tested doses during the dose ranging studies that enabled safe and effective daily use.
+The German Federal Patent Court in its judgment in Hexal AG v ICOS Corpn of 24 October 2017 analysed the problem in the problem and solution approach to be to provide dosages of tadalafil for effective treatment of sexual dysfunction and stated that the skilled team would conduct dose finding studies as part of the standard repertoire in [their] field of activity.
+It considered and disagreed with the judgment of Birss J on the significance of the unexpected reduction in side effects, which in German case law would be treated as a bonus effect.
+One can draw some support from judicial decisions in other national courts which reach the same conclusion as one has come to.
+But it is necessary to recognize not only that the first instance decisions in the Netherlands and Germany are the subject of appeals but also that the evidence led before different courts in parallel proceedings may differ and, even when the same evidence is led, each courts findings of fact based on that evidence may not be the same.
+For example, the German court attached weight to evidence (a) that sildenafil was effective at a 5mg dose and the skilled person would infer from that that tadalafil would be more effective at low dosages because of its IC50 value (a finding which supported the conclusion that the skilled team had a reasonable expectation of success in a test at that level) and (b) that it was customary to start dose ranging studies with very low initial doses and increase the doses if tolerated.
+Neither of those findings was made in the English proceedings.
+Similarly, the Dutch court in its analysis of the Phase IIb studies accepted a mathematical calculation which Tevas expert, Dr Cohen, advanced in those proceedings which was similar to the three factors point which the claimants put on cross examination to Dr Saoud in the English proceedings but which Dr Saoud accepted only as a paper exercise and Birss J rejected as the thinking of the skilled team (paras 297 303 of his judgment).
+It is also necessary to observe, as Mr Waugh pointed out, that there was also a judgment in favour of Lilly on obviousness in Australia, which is not a signatory of the European Patent Convention.
+Because of the differences in the evidence led, the manner by which it is tested, and the differing findings to which that evidence gives rise, one may derive support from the approach to the question and methods of reasoning of other national courts but should never rely uncritically on the outcome.
+Interventions, selection patents and improvement patents
+In this appeal the court had the benefit of interventions from the IP Federation, Medicines for Europe, the British Generic Manufacturers Association, and the UK BioIndustry Association.
+The first intervener represents the views of a wide range of UK industry on policy and practice in relation to intellectual property rights.
+The second and third interveners represent the interests of a range of manufacturers of generic drugs.
+The fourth intervener is a national trade association for innovative enterprises in the bioscience sector of the UK economy.
+Several interveners advocated that obviousness be approached by a fact specific assessment on a case by case basis, an approach which is consistent with my approach in this judgment, and resisted the recognition of any one factor as being of overriding importance, whether it be the cost and effort which pre clinical and clinical trials entail, or the standardised and sometimes routine nature of such tests.
+The UK BioIndustry Association asked for guidance on the relevance in the assessment of obviousness of (a) the reasonable expectation of success as a factor and (b) the problem and solution approach of the EPO.
+It expressed concern that the judgment of the Court of Appeal might support the view that empirical research in the field of bioscience would not be seen as inventive in so far as the methods of research were well established.
+The IP Federation similarly expressed concern about a perceived risk that people might extrapolate from statements in the Court of Appeals judgments that the result of routine investigations cannot lead to a valid patent claim.
+It expressed a particular concern about the breadth of the statement by Lewison LJ (in para 180): in a case which involves routine pre clinical and clinical trials, what would be undertaken as part of that routine is unlikely to be innovative.
+Its concern was that a simplistic adoption of this phrase as a blanket test without regard to the facts of the specific case would be contrary to the fundamental principles of patent law.
+I do not interpret the Court of Appeals judgments, including Lewison LJs statement which I have quoted, as supporting such an extrapolation.
+Kitchin LJ gave the leading judgment, in which he adopted a fact specific assessment based on the facts of this case and involving the weighing up of several factors, and Floyd and Lewison LJJ agreed with his reasoning and conclusions.
+I do not construe the judgments of the Court of Appeal as supporting any general proposition that the product of well established or routine enquiries cannot be inventive.
+If that had been what the experienced judges had said, I would have respectfully disagreed.
+But it is not.
+As Jacob LJ stated in Actavis v Merck (above) para 29, there is no policy reason why a novel and inventive dosage regime should not be rewarded by a patent.
+A fortiori, efficacious drugs discovered by research involving standard pre clinical and clinical tests should be rewarded with a patent if they meet the statutory tests (para 54 above).
+Mr Waugh in his reply attacks Mr Specks proposition that nothing which was already within the skilled persons repertoire could be inventive.
+He suggests that such a proposition would undermine the so called selection patents and improvement patents.
+But because I do not accept Mr Specks submission on the skilled persons repertoire in this broad formulation, this judgment does not militate against selection patents or improvement patents.
+Selection patents are patentable as involving an inventive step if the selection is not arbitrary and is justified by a hitherto unknown technical effect (Agrevo/Triazoles (above) para 2.5.3) or, in other words, when they make a real, novel and non obvious technical advance (Dr Reddys Laboratories (above) para 50 per Jacob LJ; para 104 per Lord Neuberger MR).
+Improvement in the context of the law of patents is in the most technical sense an invention which comes within the claims of an earlier patent but contains a further inventive step: Buchanan v Alba Diagnostics Ltd [2004] UKHL 5; 2004 SC (HL) 9; [2004] RPC 34, para 32 per Lord Hoffmann.
+The use of well known research tests of itself does not render such selections and improvements obvious.
+Summary
+The balance or symmetry in patent law and the pre established or at least readily foreseeable target of the skilled teams tests hold the key to the resolution of this dispute.
+The Daugan patent is ex hypothesi valid and it is not in dispute that it discloses an invention that is the use of tadalafil in the treatment of ED in a manner which enables the skilled person to perform it as section 14(3) of the 1977 Act requires.
+The task which the notional skilled team would undertake was that of implementing Daugan.
+The target of the skilled team would be to ascertain the appropriate dose, which would usually be the lowest effective dose.
+The skilled team would know of that target from the outset of its research.
+The pre clinical and clinical tests involved familiar and routine procedures and normally progressed to the discovery of the dose response relationship in Phase IIb.
+In this case the trial judges findings of what would have been the sequence of the tests, which did not depend upon hindsight, included the finding, which the evidence clearly justified, that the team, having found a therapeutic plateau, would be very likely to test lower doses and so come upon the dosage regime which is the subject matter of the patent.
+For the reasons which I have given above, I am satisfied that the Court of Appeal was entitled to interfere with the trial judges assessment of obviousness and to hold that the 181 patent was invalid for lacking an inventive step.
+The claimants other challenges
+Having reached that conclusion, it is not necessary to address the claimants alternative arguments for revocation on the grounds of non disclosure by the priority document, anticipation, and added matter.
+Conclusion
+I would dismiss the appeal.
diff --git a/UK-Abs/test-data/judgement/uksc-2018-0030.txt b/UK-Abs/test-data/judgement/uksc-2018-0030.txt
new file mode 100644
index 0000000000000000000000000000000000000000..1c6ef86a38b8092eb5f08082bcf24162e6ca3f1c
--- /dev/null
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@@ -0,0 +1,63 @@
+This is an application by the Attorney General for Northern Ireland to refer to this court what is claimed to be a devolution issue.
+The reference is made under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998.
+In material part it provides: the Attorney General for Northern Ireland may refer to the Supreme Court any devolution issue which is not the subject of proceedings.
+By virtue of paragraph 1(b) of Schedule 10, a devolution issue includes a question whether a purported or proposed exercise of a function by a Minister or Northern Ireland department is, or would be, invalid by reason of section 24 of the 1998 Act.
+And section 24, among other things, provides (in subsection 1(a)) that a Minister or Northern Ireland department has no power to make, confirm or approve any subordinate legislation, or to do any act, so far as the legislation or act is incompatible with any of the rights under the European Convention on Human Rights (ECHR).
+By the Welfare Reform (Northern Ireland) Order 2015 (Commencement No 8 and Transitional and Transitory Provisions) Order 2017, the Secretary of State for Work and Pensions commenced a number of universal credit provisions for claims on or after 27 September 2017 where the claimant resides in an area known as No 1 relevant districts.
+Although it is for the Secretary of State to appoint the dates for commencement, he does so by a legislative technique which, the Attorney General contends, requires action by the Northern Ireland Department for Communities, which is one of the Northern Ireland ministerial departments.
+The 2017 Order defines the No 1 relevant districts as the postcodes specified in the table in the List of the No 1 Relevant Districts.
+It is the Department for Communities which must issue such lists.
+The same holds true for a second order made by the Secretary of State relating to No 3 relevant districts and No 2 relevant districts.
+The commencement order was drafted so that Universal Credit could come into effect if the Department published a list of postcodes, which postcodes together make up the district within which the benefit will commence.
+The basis for the Attorneys reference is his assertion that the universal credit provisions in question breach articles 8, 12 and 14 of the ECHR and article 1 of the first protocol to the ECHR and are therefore invalid per section 24 of the 1998 Act.
+The Attorney General submits that a devolution issue arises because the provision of lists by the Department for Communities is necessary in order to give effect to the Secretary of States commencement orders.
+The Department refutes this, contending that its role in issuing the relevant lists amounts to nothing more than providing administrative support to the Secretary of State.
+The commencement orders define the relevant territories by reference to lists of postcodes issued by the Department.
+The lists were not prepared, however, pursuant to any statutory or other power and do not have any independent legal force or effect, the Department says.
+They are incorporated by reference into the commencement orders and therefore have legal effects solely by reason of the act of the Secretary of State, not the act of the Department.
+Discussion
+Acts by the Secretary of State or by departments in Westminster do not come within the purview of section 24 of the 1998 Act.
+In order for a devolution issue to arise, therefore, it must be shown that an act has been carried out or a function has been discharged by a Northern Ireland Minister or a Northern Ireland department.
+Section 1(1) of the Northern Ireland (Welfare Reform) Act 2015 stated that
+Her Majesty could make provision for, inter alia, social security and child support maintenance in Northern Ireland by way of an Order in Council.
+Section 1(2) stipulated that such an Order in Council could confer power on the Secretary of State or a Northern Ireland department to make regulations relating to such payments.
+The Welfare Reform (Northern Ireland) Order 2015 was made on 9 December 2015, pursuant to the 2015 Act.
+Article 4 provides that until such date as appointed by the Secretary of State, a function conferred on a Northern Ireland department under the 2015 Order to make Regulations for social security and child support maintenance is to be exercised by the Secretary of State rather than by the Northern Ireland department.
+It also provides that any statutory provision relating to social security and child support maintenance may be exercised by the Secretary of State (as well as by the Northern Ireland department otherwise entitled to exercise the function).
+These provisions were deemed to be necessary because of disagreements over welfare reform among the Northern Ireland political parties.
+They were important, the department argued, because they concentrated the power to make regulations relating to welfare provision in the office of the Secretary of State.
+Actions taken by the Secretary of State could not constitute devolution issues.
+On one view, it would be anomalous that the provision of lists of postcodes, something entirely ancillary to the introduction of the welfare provision reforms, could be used as a hook on which to hang the argument that a devolution issue arose.
+The contrary view is that the provision of postcodes was indispensable to the effective introduction of the welfare reforms.
+Without them, the commencement orders could not operate.
+Conceivably, they could have been compiled by a Westminster department which would have rendered the act of preparing the lists immune from challenge as a devolution issue.
+But, in fact, they were not.
+A Northern Ireland department prepared the lists.
+Their existence was integral to the operation of the welfare reforms.
+The act of preparing the lists and providing them to the Secretary of State constituted an act for the purpose of section 24 of the 1998 Act.
+It is, I believe, important to recognise that the distinct prohibitions in section 24 are disjunctive.
+Thus, it is forbidden to make, confirm or approve any subordinate legislation, or to do any act, so far as the legislation or act is incompatible with any of the Convention rights.
+The section comprehends, therefore, not only the enactment of subordinate legislation but also acts which may be ancillary or even incidental to that enactment.
+On a theoretical or technical level, therefore, the compiling of lists of postcodes and providing them as a means of facilitating the introduction of the commencement orders is an act or the discharge of a function under paragraph 1(b) of Schedule 10 to the 1998 Act.
+Matters do not end there, however.
+Paragraph 2 of Schedule 10 to the 1998 Act provides that a devolution issue shall not be taken to arise in any proceedings merely because of any contention of a party to the proceedings which appears to the court or tribunal before which the proceedings take place to be frivolous or vexatious.
+It would be wrong to characterise the Attorneys application for a reference as frivolous or vexatious but it would be equally wrong to lose sight of two important and correlated aspects to the application.
+First, the application is not principally directed at the act of preparing the postcode lists on the basis that that act was incompatible with the ECHR.
+The avowed incompatibility is said to depend on its being shown that the introduction of Universal Credit is not compatible with the ECHR.
+The gravamen of the charge is not to the mode of introduction of the measure but to its impact.
+In Attorney General for Northern Irelands Reference [2019] UKSC 1, this court held that where precisely the same issue as the Attorney sought to refer to this court as a devolution issue arose in pending proceedings in Northern Ireland, it was not appropriate to accept the reference.
+This court must retain a discretion whether to deal with a reference on a devolution issue where that issue is to be raised in proceedings where the actual claimed incompatibility of the measure occupies centre stage, as opposed to its appearance via a side wind as here.
+And it is, of course, the case that this issue will come before this court on appeal from a decision of the English Court of Appeal (R (C) v Secretary of State for Work and Pensions [2019] EWCA Civ 615; [2019] 1 WLR 5687) which is due to be heard on 20 22 October 2020.
+It will be open to the Attorney to apply to intervene in that appeal.
+This leads to the second reason for refusing to accept the reference.
+The fundamental underpinning of the Attorneys case is that the introduction of Universal Credit in Northern Ireland is incompatible with the ECHR.
+It is not that a means of identifying the areas where it is to be introduced sequentially was incompatible.
+In this connection a passage from Reed and Murdoch: Human Rights Law in Scotland, 4th ed (2017) is instructive.
+At para 1.148 the authors state: Although the term act has been given a wide construction, there remains the critical question whether the act is incompatible with the Convention rights. what is meant by incompatible has proved to be a difficult question.
+Although it has been said on a number of occasions that the essence of the word incompatible is that there is an inconsistency between one thing and another, that explanation does not resolve all the difficulties that have arisen.
+Whether an act is inconsistent with a Convention right may not be obvious: it may not depend on a but for causal test or involve a remoteness test (ie whether any infringement of Convention rights will be the direct or proximate result of the act under challenge).
+Other approaches have been to ask whether the act under challenge is precluded by the Convention right in question, or whether the act involves an infringement of the Convention right.
+The latter formulations have the advantage of requiring analysis of the precise bearing of the Convention right, as understood in the Strasbourg and domestic jurisprudence, on the specific act under challenge, rather than falling back on concepts, such as those of causation or remoteness, borrowed from other areas of domestic law.
+The relative isolation of the act (in this case the compilation and the provision of the postcode lists) from the actual introduction of Universal Credit in the areas covered by them throws into stark relief the inappropriateness of regarding the preparation of the lists as an act sufficient to give rise to a devolution issue.
+Conclusion
+I would therefore refuse to accept the Attorneys application to refer this issue to the court under paragraph 34 of Schedule 10 to the 1998 Act.
diff --git a/UK-Abs/test-data/judgement/uksc-2018-0099.txt b/UK-Abs/test-data/judgement/uksc-2018-0099.txt
new file mode 100644
index 0000000000000000000000000000000000000000..2a1115c1ada7365a5afa6fe677ea6d139edb8b25
--- /dev/null
+++ b/UK-Abs/test-data/judgement/uksc-2018-0099.txt
@@ -0,0 +1,242 @@
+This appeal concerns the permitted uses of a retail store in Streatham in the area of the London Borough of Lambeth (the Council).
+Planning permission was originally granted by the Secretary of State in 1985, but the use was limited by condition to sale of DIY goods and other specified categories, not including food sales.
+Following implementation, the permitted categories were extended by later consents (under section 73 of the Town and Country Planning Act 1990), the most recent being in 2014 (the 2014 permission), which is in issue in this case.
+The second respondent sought a certificate from the Council determining that the lawful use of the store extended to sales of unlimited categories of goods including food.
+A certificate to that effect was refused by the Council, but granted by a planning inspector on appeal, and upheld by the lower courts.
+The Council, as local planning authority, appeals to this court.
+The planning history in more detail
+The original permission, granted by the Secretary of State on 17 September 1985 (the 1985 permission), was subject to a number of conditions, including: 6.
+The retail unit hereby permitted shall be used for the retailing of goods for DIY home and garden improvements and car maintenance, building materials and builders merchants goods and for no other purpose (including any other purpose in Class I of the Schedule to the Town and Country Planning (Use Classes) Order 1972 or in any provision equivalent to that Class in any statutory instrument revoking and re enacting that Order).
+The exclusion of use for other purposes, including those within Use Class 1, had the effect of excluding (inter alia) food sales.
+The following reason was given in the decision letter (para 16): Because the traffic generation and car parking requirements of certain types of large retail stores are substantially greater than those of the DIY unit proposed and could be excessive at this site, it is necessary to restrict the right to change to other
+types of retail unit
+On 30 June 2010, the Council granted a further planning permission (the 2010 permission) expressed to be for Variation of Condition 6 of the 1985 permission to allow for the sale of a wider range of goods as specified, not including food sales, and again excluding other uses within the relevant use class (now Class A1).
+Although it is common ground that this permission was granted under section 73, there was no specific reference to that section in the document, which referred simply to the 1990 Act.
+This permission included, as a separate condition 1, the same enumeration of permitted uses and exclusions as in the terms of the grant, and the following reason was given for the condition: In order to ensure that the level of traffic generation is such as to minimise danger, obstruction and inconvenience to users of the highway and of the accesses.
+There were in addition two new conditions which had not been in the 1985 permission: 2.
+Details of refuse and recycling storage to serve the development shall be submitted to and approved in writing by the Local Planning Authority prior to first commencement of any of the additional retail uses hereby permitted.
+The refuse and recycling storage facilities shall be provided in accordance with the approved details prior to commencement of the development and shall thereafter be retained as such for the duration of the permitted use. 3.
+A strategy for the Management of Deliveries and Servicing shall be submitted to and approved in writing by the Local Planning Authority prior to first commencement of any of the additional retail uses hereby permitted.
+Deliveries and servicing shall thereafter be carried out solely in accordance with the approved details.
+Reasons were given for each condition.
+The permission now in issue was granted on 7 November 2014. (The application is not before us.) In this case the grant referred in terms to section 73.
+It is necessary to set out the operative parts in full: DECISION NOTICE DETERMINATION OF APPLICATION UNDER SECTION 73 TOWN AND COUNTRY PLANNING ACT 1990 The London Borough of Lambeth hereby approves the following application for the variation of condition as set out below under the above mentioned Act Development At: Homebase Ltd 100 Woodgate Drive, London SW16 5YP For: Variation of condition 1 (Retail Use) of Planning Permission Ref: 10/01143/FUL (Variation of Condition 6 (Permitted retail goods) of planning permission Ref 83/01916 Granted on 30.06.2010.
+Original Wording: The retail use hereby permitted shall be used for the retailing of DIY home and garden improvements and car maintenance, building materials and builders merchants goods, carpets and floor coverings, furniture, furnishings, electrical goods, automobile products, camping equipment, cycles, pet and pet products, office supplies and for no other purpose (including the retail sale of food and drink or any other purpose in Class A1 of the Schedule to the Town and Country Planning (Use Classes) Order 1987 (as amended) or in any provision equivalent to that Class in any statutory instrument revoking and re enacting that Order).
+Proposed Wording: The retail unit hereby permitted shall be used for the sale and display of non food goods only and, notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 (or any Order revoking and re enacting that Order with or without modification), for no other goods. [I should note in passing that the reference in the revised form of condition to the General Development Order, rather than the Use Classes Order, appears to be a mistake, as Mr Lockhart Mummery QC for the third respondent suggested.
+Neither he nor any of the parties saw it as significant to the issues in the appeal.] Approved Plans Summary of the Reasons for Granting Planning Permission: In deciding to grant planning permission, the Council has had regard to the relevant policies of the development plan and all other relevant material considerations.
+Having weighed the merits of the proposals in the context of these issues, it is considered that planning permission should be granted subject to the conditions listed below.
+Conditions 1.
+The development to which this permission relates must be begun not later than the expiration of three years beginning from the date of this decision notice.
+Reason: To comply with the provisions of section 91(1)(a) of the Town and Country Planning Act 2.
+Prior to the variation her[e]by approved being implemented a parking layout plan at scale of 1:50 indicating the location of the reserved staff car parking shall be submitted to and approved in writing by the Local Planning Authority.
+The use shall thereafter be carried out solely in accordance with the approved staff car parking details.
+Reason: To ensure that the approved variation does not have a detrimental impact on the continuous safe an[d] smooth operation of the adjacent highway 3.
+Within 12 months of implementation of the development hereby approved details of a traffic survey on the site and surrounding highway network shall be undertaken within one month of implementation of the approved development date and the results submitted to the local planning authority.
+If the traffic generation of the site, as measured by the survey, is higher than that predicted in the Transport Assessment submitted with the original planning application the applicant shall, within three months, submit revised traffic modelling of the Woodgate Drive/Streatham Vale/Greyhound Lane junction for analysis.
+If the junction modelling shows that junction capacity is worse than originally predicted within the Transport Assessment, appropriate mitigation measures shall be agreed with the council, if required, and implemented within three months of the date of agreement.
+Reason: to ensure that the proposed development does not lead to an unacceptable traffic impact on the adjoining highway network There was no specific reference to conditions 2 and 3 of the 2010 permission.
+On 10 June 2015, the second respondent applied to the Council for a certificate of lawfulness of proposed use or development (under section 192 of the 1990 Act) for unrestricted use of the store.
+This was refused by the Council on 12 August 2015, but the appeal was allowed by the inspector by a decision letter dated 6 December 2016.
+The letter gave a certificate of lawfulness for use described as The use of the premises for purposes within Use Class Al of the Town and Country Planning (Use Classes) Order 1987 (as amended) without restriction on the goods that may be sold.
+The reason given was: No condition was imposed on [the 2014 permission] to restrict the nature of the retail use to specific uses falling within Use Class A1
+The statutory framework
+It is unnecessary to set out the familiar provisions of the 1990 Act relating to the definition of development, and to the granting of planning permission.
+It is to be noted however that the extension of the categories of goods to be sold within the store did not in itself amount to development (within the meaning of 1990 Act section 55) requiring planning permission.
+The erection of the building and the commencement of sales under the 1985 permission no doubt involved both operational development and a material change of use.
+Thereafter a change to sale of other categories (at least those within the relevant class under the current Use Class Order) would not involve any breach of planning control unless restricted by an appropriate condition.
+Section 73 of the Act, on which the Council relied in granting the 2010 and 2014 permissions, is headed Determination of applications to develop land without compliance with conditions previously attached.
+It provides: (1) This section applies to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted. (2) On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and (a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and (b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application.
+The background to this section (formerly section 31A of the Town and Country Planning Act 1971) was described by Sullivan J in Pye v Secretary of State for the Environment, Transport and the Regions [1998] 3 PLR 72: Prior to the enactment of (what is now) section 73, an applicant aggrieved by the imposition of the conditions had the right to appeal against the original planning permission, but such a course enabled the Local Planning Authority in making representations to the Secretary of State, and the Secretary of State when determining the appeal as though the application had been made to him in the first instance, to go back on the original decision to grant planning permission.
+So the applicant might find that he had lost his planning permission altogether, even though his appeal had been confined to a complaint about a condition or conditions.
+It was this problem which section 31A, now section 73, was intended to address .
+While section 73 applications are commonly referred to as applications to amend the conditions attached to a planning permission, a decision under section 73(2) leaves the original planning permission intact and un amended.
+That is so whether the decision is to grant planning permission unconditionally or subject to different conditions under paragraph (a), or to refuse the application under paragraph (b), because planning permission should be granted subject to the same conditions.
+In the former case, the applicant may choose whether to implement the original planning permission or the new planning permission; in the latter case, he is still free to implement the original planning permission.
+Thus, it is not possible to go back on the original planning permission under section 73.
+It remains as a base line, whether the application under section 73 is approved or refused, in contrast to the position that previously obtained.
+The original planning permission comprises not merely the description of the development in the operative part of the planning permission . but also the conditions subject to which the development was permitted to be carried out .
+This passage was approved by the Court of Appeal in Powergen United Kingdom plc v Leicester City Council [2000] JPL 1037, para 28, per Schiemann LJ.
+Sullivan Js comment that such applications are commonly referred to as applications to amend the conditions was echoed by Schiemann LJ, who noted, at para 1, that such an application is commonly referred to as an application to modify conditions imposed on a planning permission.
+This usage is also consistent with the wording used in the statute under which section 31A was originally introduced.
+It was one of various minor and consequential amendments introduced by section 49 and Schedule 11 of the Housing and Planning Act 1986, described as (d) applications to vary or revoke conditions attached to planning permission.
+It is clear, however, that this usage, even if sanctioned by statute, is legally inaccurate.
+A permission under section 73 can only take effect as an independent permission to carry out the same development as previously permitted, but subject to the new or amended conditions.
+This was explained in the contemporary circular 19/86, para 13, to which Sullivan J referred.
+It described the new section as enabling an applicant, in respect of an extant planning permission granted subject to conditions, to apply for relief from all or any of those conditions.
+It added: If the authority do decide that some variation of conditions is acceptable, a new alternative permission will be created.
+It is then open to the applicant to choose whether to implement the new permission or the one originally granted.
+Although the section refers to development in the future, it is not in issue that a section 73 application can be made and permission granted retrospectively, that is in relation to development already carried out.
+This question arose indirectly in the courts below, in the context of a dispute about the validity of the time limit condition (condition 1), which required the development to which this permission relates to be begun within three years.
+The Court of Appeal upheld the inspectors decision that this condition was invalid, in circumstances where the relevant development had been carried out many years before.
+Lewison LJ said: I cannot see that the decision notice granted planning permission for any prospective development.
+The mere widening of the classes of goods that were permitted to be sold by retail does not amount to development at all.
+Conformably with the definition of development in section 55 the only development to which the application could have related was the original erection of the store and the commencement of its use as a DIY store.
+It was that development that was permitted subject to the conditions that the application was designed to modify; and it was the planning permission permitting that development to which the decision notice referred. (para 79)
+I agree with that analysis, which is not I understand in dispute before this court.
+However, it leaves open the question as to the effect of the new permission on conditions which have already taken effect following implementation of the earlier permission.
+The section does not assist directly.
+It envisages two situations: either (a) the grant of a new permission unconditionally or subject to revised conditions, or (b) refusal of permission, leaving the existing permission in place with its conditions unchanged.
+It does not say what is to happen if the authority wishes to change some conditions but leave others in place.
+As will be seen (para 20 below), the Court of Appeal cited government guidance indicating that to assist with clarity planning decisions under section 73 should also repeat the relevant conditions from the original planning permission.
+However, as I read this, it was given as advice, rather than as a statement about the legal position.
+Although the current status of the 2010 conditions is not directly in issue in the appeal, it is of some background relevance and has attracted conflicting submissions.
+I shall return to this aspect later in the judgment.
+For completeness, before leaving this discussion of section 73, I should note that circular 19/86 (referred to above) described its predecessor as complementing section 32 of the Town and Country Planning Act 1971 (later, section 63 of the 1990 Act), which at the time made specific provision for retrospective permissions (Permission to retain buildings or works or continue use of land).
+That section has since been repealed and partially replaced by section 73A of the 1990 Act (see Planning and Compensation Act 1991, Schedule 7).
+Whatever the precise significance of this change, it is not suggested that it has any relevance to the issues in this appeal and neither side has sought to rely on section 73A.
+Principles of interpretation
+We have received extensive submissions and citations from recent judgments of this court on the correct approach to interpretation.
+Most relevant in that context is Trump International Golf Club Ltd v Scottish Ministers [2015] UKSC 74; [2016] 1 WLR 85.
+An issue in that case related to the interpretation of a condition in a statutory authorisation for an offshore wind farm, requiring the developer to submit a detailed design statement for approval by Ministers.
+One question was whether the condition should be read as subject to an implied term that the development would be constructed in accordance with the design so approved.
+In the leading judgment Lord Hodge (at paras 33 37) spoke of the modern tendency in the law to break down divisions in the interpretation of different kinds of document, private or public, and to look for more general rules.
+He summarised the correct approach to the interpretation of such a condition: 34.
+When the court is concerned with the interpretation of words in a condition in a public document such as a section 36 consent, it asks itself what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole.
+This is an objective exercise in which the court will have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense.
+He rejected a submission that implication had no place in this context: 32. [Counsel] submits that the court should follow the approach which Sullivan J adopted to planning conditions in Sevenoaks District Council v First Secretary of State [2005] 1 P & CR 186 and hold that there is no room for implying into condition 14 a further obligation that the developer must construct the development in accordance with the design statement.
+In agreement with Lord Carnwath JSC, I am not persuaded that there is a complete bar on implying terms into the conditions in planning permissions 35.
+While the court will, understandably, exercise great restraint in implying terms into public documents which have criminal sanctions, I see no principled reason for excluding implication altogether.
+In the instant case, had it been necessary to do so, he would, at para 37, have readily drawn the inference that the conditions of the consent read as a whole required the developer to conform to the design statement in the construction of the windfarm.
+In my own concurring judgment, having reviewed certain judgments in the lower courts which had sought to lay down lists of principles for the interpretation of planning conditions, I commented: I see dangers in an approach which may lead to the impression that there is a special set of rules applying to planning conditions, as compared to other legal documents, or that the process is one of great complexity. (para 53) Later in the same judgment, I added: Any such document of course must be interpreted in its particular legal and factual context.
+One aspect of that context is that a planning permission is a public document which may be relied on by parties unrelated to those originally involved It must also be borne in mind that planning conditions may be used to support criminal proceedings.
+Those are good reasons for a relatively cautious approach, for example in the well established rules limiting the categories of documents which may be used in interpreting a planning permission But such considerations arise from the legal framework within which planning permissions are granted.
+They do not require the adoption of a completely different approach to their interpretation. (para 66)
+In summary, whatever the legal character of the document in question, the starting point and usually the end point is to find the natural and ordinary meaning of the words there used, viewed in their particular context (statutory or otherwise) and in the light of common sense.
+The Court of Appeals reasoning
+It is unnecessary to review in any detail the reasoning of the inspector or the High Court, since the issues, and the competing arguments, are fully discussed in the judgment of the Court of Appeal.
+Having set out the planning history and the terms of section 73, Lewison LJ (paras 19 22) identified what he saw as the problem.
+While he acknowledged that it was clear what Lambeth meant to do in a very broad sense, he said: But that is not the question.
+The question is: what did Lambeth in fact do? The application was an application for the variation of a condition attached to the 2010 permission the technical trap, into which it is said that Lambeth fell, is that approval of an application under section 73 requires the grant of a fresh planning permission, rather than merely a variation of an existing one It follows from this that the decision notice must be read as a free standing grant of planning permission.
+However, it failed to repeat any of the conditions imposed on the previous planning permissions and, more importantly, failed to express the new description of the use as a condition, rather than as a limited description of the permitted use He noted the advice given in the relevant Planning Policy Guidance note (PPG): It should be noted that the original planning permission will continue to exist whatever the outcome of the application under section 73.
+To assist with clarity, decision notices for the grant of planning permission under section 73 should also repeat the relevant conditions from the original planning permission, unless they have already been discharged.
+This advice, he thought, was reflective of the words of section 73(2)(a) which requires a local planning authority, if it decides that different conditions should be imposed, to grant planning permission accordingly: that is to say in accordance with the conditions upon which it has decided that planning permission should be granted.
+Later in the judgment he addressed the submissions before the court.
+He noted that Mr Reed QC for the Council put his argument in two ways: first by implication of a condition and second as a matter of interpretation.
+He thought it more logical to reverse the order, while accepting that the exercise was an iterative process, and observing that the objective was not to determine what the parties meant to do in the broad sense, but what a reasonable reader would understand by the language they in fact used. (para 38)
+Having referred to the findings of the judge in the court below, he summarised Mr Reeds submission on the interpretation of the decision notice: 45.
+In the light of those findings Mr Reed argues that the decision notice described itself as doing no more than approving a variation of condition in two previous planning permissions.
+For technical reasons, however, a variation of a condition under section 73 takes effect as the grant of a fresh planning permission.
+In order to give effect to Lambeths intention and also to that of the applicant for the variation of the condition, the limited description of the use must therefore be read as if it were itself a condition.
+In the critical paragraphs of the judgment, he gave his view of how the
+reasonable reader would have approached the matter: 52.
+The reasonable reader of the decision notice must be notionally equipped with some knowledge of planning law and practice.
+The distinction between a limited description of a permitted use and a condition is a well known distinction.
+The reasonable reader would also know that the Governments own guidance stated that any conditions applicable to planning permission granted under section 73 must be explicitly stated.
+He would know the general structure of a planning permission which will set out a summary of the application, describe the development permitted by the permission and, in a separate part of the permission, will set out any conditions imposed on the grant of planning permission with reasons for those conditions.
+He would notice that there were some conditions attached to the grant which were explicitly stated in the decision notice, and that the decision notice stated that Lambeth had decided that planning permission should be granted subject to the conditions listed below.
+If he had looked back over the planning history he would also have seen the 2010 approval of a variation to the condition, which did specify the permitted range of goods in the form of a condition.
+That had not been repeated in the decision notice.
+He would also have noticed that the decision notice in 2010 had imposed two conditions (relating to refuse and recycling on the one hand, and management of deliveries on the other) which had also not been repeated in the decision notice.
+If he had considered the 2013 refusal he would have seen that Lambeth was not satisfied at that time that the applicant had demonstrated that increased traffic would not lead to adverse impacts.
+But he would have seen that the decision notice of 2014 referred to a traffic assessment which Lambeth had considered.
+He would also have noticed that condition 3 required a traffic survey and the implementation of mitigation measures if junction capacity was worse than predicted.
+He might reasonably have concluded that Lambeth had been sufficiently satisfied on this second application to grant conditional permission, with the safety net of condition 3. 53.
+Accordingly, sympathetic though I am to Lambeths position, this submission seems to me to go well beyond interpretation.
+It is not a question of rearranging words that appear on the face of the instrument (as in Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101).
+It is a question of adding a whole condition, which has a completely different legal effect to the words that Lambeth in fact used.
+As a further point he noted the statutory requirement for the notice to state the reasons for any condition imposed.
+He said: To impose a condition without giving reasons for it would be a breach of statutory duty.
+It is one of the principles of contractual interpretation that one should prefer a lawful interpretation to an unlawful one.
+There is nothing in the decision notice which could amount to a clear, precise and full reason for treating the description of the use as a condition.
+Although Mr Reed suggested that the first reason given for the 2013 refusal could stand as the reason, I consider that to be untenable.
+The requirement to give reasons is applicable to the notice.
+It may be that the notice might extend to another document incorporated by reference; but that is not this case.
+Although the decision notice does cross refer both to the original planning permission and also to previous approved variations, it does not mention the refusal at all.
+There would be no reason for a reasonable reader of the decision notice to suppose that a reason for an unexpressed condition was contained in a document which was simply part of the background. (para 59)
+Lewison LJ went on to deal with the alternative formulation, based on implication of a condition in the same form as the proposed wording, holding that it failed to meet the stringent tests laid down by the authorities (paras 63 75).
+In particular he accepted a submission by Mr Lockhart Mummery that the judgments in Trump (like the decision on which they relied: Crisp from the Fens Ltd v Rutland County Council (1949 1951) 1 P & CR 48) decided no more than that implication might be made into an extant condition that was incomplete; they did not contemplate the implication of a wholly new condition (para 72).
+In this court Mr Reed QC for the Council repeated and developed his arguments in the Court of Appeal.
+In line with the decision of the High Court in Im Your Man Ltd v Secretary of State for the Environment [1998] 4 PLR 107, he did not seek to argue that the proposed wording could be treated as an enforceable limitation.
+He accepted the need to establish that the permission was subject to a legally effective condition in that form.
+In summary he put his case in three ways: (a) as a matter of the correct interpretation of the permission; (b) by correction of an obvious error (by analogy with the contractual principles applied in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38; [2009] 1 AC 1101); (c) by the implication of a condition in the terms of the proposed wording (applying the principles in Attorney General of Belize v Belize Telecom Ltd [2009] UKPC 10; [2009] 1 WLR 1988).
+The respondents generally adopted the reasoning of the Court of Appeal.
+Mr Kolinsky QC for the Secretary of State emphasised the need for clarity and certainty in a public document.
+For the third respondent (as freehold owner of the site), Mr Lockhart Mummery reminded us that planning is a creature of statute, in which common law principles have a limited role; and also of the need for clear and specific words to exclude rights granted by provisions such as the Use Classes Order.
+Commentary
+With respect to the careful reasoning of the courts below, I consider that an ordinary reading of the decision notice compels a different view.
+I find it unnecessary to examine in detail the more ambitious alternatives proposed by Mr Reed.
+However, I observe in passing (in agreement with Mr Lockhart Mummerys submission as to the limited scope of the judgments in Trump) that it is difficult to envisage circumstances in which it would be appropriate to use implication for the purpose of supplying a wholly new condition, as opposed to interpretation of an existing condition.
+On the issue of interpretation, Lewison LJ was of course right to say that the 2014 permission needs to be seen through the eyes of the reasonable reader.
+However, such a reader should be assumed to start by taking the document at face value, before being driven to the somewhat elaborate process of legal and contextual analysis hypothesised in Lewison LJs para 52.
+In essence Mr Reeds submission, in the simple form recorded by Lewison LJ at para 45 (para 22 above) was in my view correct.
+It is not necessarily assisted by the varying formulations and citations discussed in his submissions to this court.
+There is a risk of over complication.
+Taken at face value the wording of the operative part of the grant seems to me clear and unambiguous.
+The Council hereby approves an application for the variation of condition as set out below .
+There then follow precise and accurate descriptions of the relevant development, of the condition to be varied, and of the permission under which it was imposed.
+They are followed by statements first of the Original wording, and then of the Proposed wording; the latter stating in terms that the store is to be used for the sale of non food goods only and for no other goods.
+Proposed wording in this context must be read as a description of the form of condition proposed in the application and hereby approved.
+In other words, the obvious, and indeed to my mind the only natural, interpretation of those parts of the document is that the Council was approving what was applied for: that is, the variation of one condition from the original wording to the proposed wording, in effect substituting one for the other.
+There is certainly nothing to indicate an intention to discharge the condition altogether, or in particular to remove the restriction on sale of other than non food goods.
+The suggested difficulties of interpretation do not arise from any ambiguity in the terms of the grant itself.
+Nor do they raise any question about the extent to which it is permissible to take account of extraneous material.
+It is unnecessary to look beyond the terms of the document.
+In these respects the case differs from many of the authorities to which reference has been made in submissions.
+The arguments against this simple view turn, not on any lack of clarity in the grant itself, but on supposed inconsistencies, firstly with its statutory context, and secondly with the treatment of other conditions in the remainder of the document.
+In respect of the statutory context, the objection is that this reading is inconsistent with the scope of the power under which the grant was made.
+Section 73, referred to in terms in the permission, does not give the authority power simply to vary a condition in the previous permission.
+That purpose could only be achieved by the grant of a new permission, subject in terms to a condition in the revised form.
+Accordingly, it is said, it was not enough simply to approve the proposed wording, without its terms being incorporated into the form of condition as required by section 73(2)(a).
+One problem with this argument is that it goes too far for the respondents case.
+If section 73 gave no power to grant a permission in the form described, the logical consequence would be that there was no valid grant at all, not that there was a valid grant free from the proposed condition.
+The validity of the grant might perhaps have been subject to a timely challenge by an interested third party or even the Council itself.
+That not having been done, there is no issue now as to the validity of the grant as such.
+All parties are agreed that there was a valid permission for something.
+That being the common position before the court, the document must be taken as it is.
+It may be that insufficient attention was paid in the submissions below to the background of section 73, as discussed earlier in this judgment.
+Once it is understood that it has been normal and accepted usage to describe section 73 as conferring power to vary or amend a condition, the reasonable reader would in my view be unlikely to see any difficulty in giving effect to that usage in the manner authorised by the section that is, as the grant of a new permission subject to the condition as varied.
+If the document had stopped at that point, I do not think such a reader could have been left in any real doubt about its intended meaning and effect.
+The lack of a specific reason for the condition, to which Lewison LJ attached weight, is of little practical significance, given that this was the relaxation of a previous condition for which the reason was well known, rather than the imposition of a new restriction.
+In any event the absence of a reason would not affect the validity of the condition (see Brayhead (Ascot) Ltd v Berkshire County Council [1964] 2 QB 303).
+Turning to the second part of the notice, it is true that there are some internal inconsistencies.
+Its heading suggests that it is simply stating the reasons for the permission granted in the first part, rather than imposing a separate set of conditions.
+Further, the wording of the conditions themselves betrays some ambivalence about what has been approved.
+In some places it is referred to as the development to which this permission relates, or the proposed development, in others as the variation hereby approved or the approved variation. (As I have already noted, the time limit condition was held by the courts below to be wholly invalid.)
+However, reading the document as a whole, and taking the first part in the sense suggested above, the second part can be given a sensible meaning without undue distortion.
+It is explanatory of and supplementary to the first part.
+The permitted development incorporating the amended condition is regarded as acceptable, in accordance with the development plan, but only subject to the conditions set out.
+They are in other words additional conditions.
+They are designed to regulate the expanded use as permitted by the revised condition, dealing in particular with staff parking, and monitoring of the additional traffic impact.
+The other 2010 conditions
+As I have said, we are not directly concerned in this appeal with the status of the other conditions in the 2010 permission, so far as still potentially relevant, notably conditions 2 and 3 relating respectively to treatment of waste and management of deliveries.
+However, some comment may be desirable, since the issue was subject to conflicting submissions before the Court of Appeal and in this court.
+At first sight it would seem surprising if the council, when relaxing the restrictions on sales, had not intended to maintain such requirements.
+No reason was given for releasing them, and it does not appear to have been requested in the application.
+For the Council, Mr Reeds position seems to have shifted during the course of the appeal below.
+Lewison LJ (paras 46 47) recorded his initial submission that conditions 2 and 3 should be treated as incorporated into the new permission; the reasonable reader of the decision notice could not be taken to understand that Lambeth was abandoning them.
+However, this argument was not pursued in his oral submissions (judgment paras 48, 51), and he seems implicitly to have accepted that they would cease to be effective.
+In this court this issue was not dealt with in any detail in the written submissions.
+Questioned in argument, Mr Lockhart Mummery QC for the third respondent submitted that conditions 2 and 3, not having been repeated in the new permission, must be taken as having lapsed altogether.
+In reply Mr Reed for the Council took a rather different position to that initially taken in the Court of Appeal.
+His submission as I understood it was that the 2010 conditions, so far as still relevant, were not as such incorporated into the new permission; but they continued to have effect under the 2010 permission, so far as not inconsistent with anything in the new grant.
+Although we have not heard full argument, my provisional view is that Mr Reeds current submission is correct.
+It will always be a matter of construction whether a later permission on the same piece of land is compatible with the continued effect of the earlier permissions (see the principles discussed in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132, 144).
+In this case, following implementation of the 2010 permission, the conditions would in principle remain binding unless and until discharged by performance or further grant.
+Conditions 2 and 3 were expressed to remain operative during continuation of the use so permitted.
+The 2014 permission did not in terms authorise non compliance with those conditions, nor, it seems, did it contain anything inconsistent with their continued operation.
+Accordingly, they would remain valid and binding not because they were incorporated by implication in the new permission, but because there was nothing in the new permission to affect their continued operation.
+This approach to the interpretation of the decision notice seems to me consistent with the decision of Sullivan J in a case relied on by Mr Reed before the Court of Appeal: Reid v Secretary of State for Transport [2002] EWHC 2174 (Admin).
+Permission for a transport depot had been granted subject to 12 conditions.
+The landowner applied for development described as retention of the use of the land without compliance with condition 2 (improvements to public highway) .
+The local authority responded with a notice referring to the terms of the application, and expressed in these terms notice of its decision to APPROVE Planning Permission for the application set out above subject to the following conditions: Conditions None.
+Sullivan J held that the grant did not mean that the other conditions were no longer effective.
+He said: 58.
+There is an apparent conflict between the description of the proposed development, which refers not to an existing use but to the retention of a permitted use without compliance with one condition in the 1992 planning permission, and the words Conditions: None.
+One is left wondering what is to happen to the remaining conditions on the 1992 planning permission.
+Once it is accepted that both the application and the 1992 planning permission referred to in the application for permission may properly be considered for the purpose of construing the meaning of the 2002 permission, then the words Conditions: None mean, in that context, no additional conditions beyond those which had been imposed upon the 1992 permission.
+Lewison LJ saw this as a case turning on the particular wording of permission, which was held to have the effect that the conditions attached to the previous planning permission continued to apply to the new one.
+He saw it as of no assistance in the present case, particularly given Mr Reeds abandonment before the Court of Appeal of the argument that the conditions attached to the 2010 permission could be carried forward into the new permission (para 51).
+As I read the judgment, however, Sullivan J did not intend to say that the other 11 conditions were by implication to be treated as included in the new permission, or that the old permission was superseded.
+Rather the new permission, confined as it was to the retention of the use without complying with condition 2, and involving no inconsistency with the old permission and the remaining conditions, had no effect on their continuing effect as conditions subject to which the development had been carried out.
+The words Conditions: None was indicating that there were to be no additional conditions beyond those already having effect under the earlier permission.
+By contrast, in the present case, the specific conditions in the 2014 permission were intended to be additional both to the varied condition, and to the others remaining in effect under the 2010 permission.
+Sullivan J added the following comment: 59.
+I accept unreservedly that the drafting of the 2002 planning permission could have been much clearer.
+The inspectors observations as to good practice should be heeded by all local planning authorities.
+When issuing a fresh planning permission under section 73, it is highly desirable that all the conditions to which the new planning permission will be subject should be restated in the new permission and not left to a process of cross referencing.
+Good practice was not followed in the present case.
+The present case illustrates the wisdom of that advice, which is also reflected in the PPG.
+Nothing in the present judgment is intended to detract from that advice, nor from the importance of ensuring that applications and grants under section 73 are couched in terms which properly reflect the nature of the statutory power.
+Conclusions
+For these reasons I would allow the appeal.
+The precise wording of the order should be agreed between the parties, or subject to further submissions.
diff --git a/UK-Abs/test-data/judgement/uksc-2018-0131.txt b/UK-Abs/test-data/judgement/uksc-2018-0131.txt
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+This appeal challenges the validity of two patents, which seek to confer a monopoly over the creation of a range of types of transgenic mouse.
+The subject matter, genetic engineering for medical purposes, is of great technical complexity, but the legal question which falls for determination in this court may be quite shortly stated.
+It is a general requirement of patent law both in this country and under the European Patent Convention (EPC) that, in order to patent an inventive product, the patentee must be able to demonstrate (if challenged) that a skilled person can make the product by the use of the teaching disclosed in the patent coupled with the common general knowledge which is already available at the time of the priority date, without having to undertake an undue experimental burden or apply any inventiveness of their own.
+This requirement is labelled sufficiency.
+It is said that the invention must be enabled by the teaching in the patent.
+Patent protection is sometimes claimed for a single product, but sometimes
+for a range of products.
+Whether the patent claims one or the other is a question of construction of the claim (or claims) in the patent.
+In the latter case the sufficiency requirement has usually been expressed as meaning that the invention must be enabled over the whole of the range of products for which the claim is made.
+In the present case both the trial judge (the late Henry Carr J) and the Court of Appeal construed the relevant claim as extending to a range of products (transgenic mice) answering a certain description.
+The judge held that the teaching in the patent did not enable any type of mouse within the range to be made, let alone mice across the whole of the relevant range.
+The Court of Appeal held, to the contrary, that the teaching in the patent, coupled with the available common general knowledge as at the priority date, did enable some types of mouse within the range to be made, but not all types across the whole range.
+There is no appeal against that essentially factual finding.
+But they held that the sufficiency requirement was nonetheless satisfied, because the invention for which protection was claimed amounted to an inventive, indeed ground breaking, general principle, such that every type of mouse with the specified characteristics would display the particular benefits which the invention was designed to achieve, benefits which would not be displayed by any types of mouse outside the specified range.
+The invention constituted by the specified characteristics was therefore sufficiently enabled across the whole scope of the claim, and matched the contribution which the disclosure of the invention made to the article
+The question for this court is therefore whether a product patent, the teaching of which enables the skilled person only to make some, but not all, of the types of product within the scope of the claim, passes the sufficiency test where the invention would contribute to the utility of all the products in the range, if and when they could be made.
+This is a pure question of law, but an understanding of its implications requires at least a bare summary of the technical context in which it arises.
+A full description of the technical context may be found in the judgments of the courts below.
+The Technical Background in Outline
+By the priority date, which was 16 February 2001, it was well recognised that antibodies (also known as immunoglobulins) could be used for treatment of disease in humans, by way of augmentation of, or in substitution for, antibodies produced by the patients own immune systems.
+Since the development of antibodies is a natural process shared by mammals generally, and since ethical constraints prevented the use of fellow humans as platforms for antibody development, mice had been identified as suitable platforms for the development of antibodies suitable for use in treatment of humans, and were already in use for that purpose by the priority date.
+Two main problems inhibited the use of mice for that purpose.
+The first was that humans tend to reject murine antibodies.
+The second was that if human antibody genes are genetically implanted in mice, so that the mice then produce human antibodies coded from those genes, then the mice suffer from a reduced immune response, and therefore reduced development of suitable antibodies in response to antigens, which seriously impairs their efficiency as platforms for antibody development.
+In the jargon of this litigation, this rendered the mice immunologically sick.
+The solution, which is the innovative idea at the heart of this case, was to develop a hybrid (chimeric) antibody gene structure, consisting in part of human and in part of murine elements, created by insertion into the genome of the mouse.
+Mammalian antibodies are proteins which all share a characteristic structure consisting of four polypeptide chains, two identical heavy chains and two identical light chains bonded in a Y formation.
+Each chain has a constant region, so named because it does not vary in its segments, called C segments, and a variable region, in which the segments vary between different antibodies.
+In both mice and humans the variable regions consist, in the light chains, of V (variable) and J (joining) segments and, in the heavy chains, of V, D (diversity) and J segments.
+Production of antibodies is one of the major functions of B cells.
+The natural development of specific antibodies in humans and mice involves a complex process of rearrangement among the segments in the variable regions, within the B cells which are created in the bone marrow.
+During this stage of development, each B cell acquires a B cell receptor on its surface.
+As a result of different combinations of the V, D and J segments, B cells are created with a variety of B cell receptors.
+As all the antibodies made by one B cell are identical, it is necessary to produce a diversity of B cells in order to have a diversity of antibodies.
+The degree of variety is important, because the body faces invasion by a wide variety of antigens associated with disease.
+The effectiveness of the bodys immunological response against a specific antigen depends upon the body producing a B cell whose receptor happens to be capable of binding to that antigen.
+The chances of that happening are increased the greater the number of different B cells (with different receptors) which the body produces.
+Repeated rearrangements of the V, D and J segments (known as somatic gene rearrangement or V(D)J recombination) through combinatorial use of a number of different gene segments coding for the polypeptide chains means that a huge variety of antibodies can be generated eventually.
+Where a B cell does encounter an antigen to which it binds, it is activated and induced to divide and differentiate.
+Repeated cell divisions give rise to sizeable clones that depend on antigen recognition for their survival.
+B cells that are unable to bind the antigen simply die.
+Those that do bind the antigen can be taken and subjected to other processes to produce antibodies in quantities which can be introduced into humans to combat or vaccinate against that particular antigen.
+It was generally understood, at least as at the priority date, that these processes of rearrangement were likely to be optimised, and the range of potential and effective antibodies increased, if the antibody genes implanted in the mice had as many as possible of the human V, D and J segments included within them.
+A typical human heavy chain gene locus has around 125 V segments (each different from the others), 27 D segments and nine J segments in the variable region.
+If the V and J segments in the light chains gene loci are factored in as well, the number of possible combinations which may be made from the human antibody gene loci is about 1.5m.
+The hybrid gene structure at the heart of the present dispute was designed to combine within one antibody gene structure the murine constant region and the whole of the human variable region.
+That was indeed what the patents in issue taught.
+But the judge found that the formidable difficulties in producing such a hybrid gene structure could not be surmounted at all by the combination of the existing common general knowledge and the disclosure in the patents.
+By contrast, the Court of Appeal found that it could be done, by a combination of the prior knowledge and the disclosure in the patents, but only so as to produce a hybrid gene structure with a small sub set of the 125 human V segments in the variable region (on the appellants estimate between two and six V segments), and an unspecified number of human D and J segments.
+Transplantation of the whole of the human variable region into a hybrid gene structure has since been achieved but only with the benefit of further inventive processes not forming part of the disclosure of the patents or the prior article
+The name given to this type of hybrid gene structure, containing the murine constant region and all or part of the human variable region is the Reverse Chimeric Locus.
+Once created in the mouse genome, it operated as the code for the production of a variety of hybrid antibodies which, when the B cells which contain the relevant coding are isolated and removed, could then have the murine constant regions removed and replaced with human equivalents before mass production and use in humans for therapy.
+The Patents in Issue
+The foregoing bare outline of the technical background makes it possible to understand the relevant claims of the patents in issue, to the limited extent necessary for the resolution of the single issue of law before this court.
+The dispute relates to two patents obtained by the respondent, Regeneron Pharmaceuticals Inc, each with a priority date of 16 February 2001, and each with substantially the same disclosure for the purpose of justifying different claims.
+They are European Patent (UK) No 1 360 287 (the 287 Patent) and European Patent (UK) No 2 264 163 (the 163 Patent).
+The 163 Patent is a divisional of the 287 Patent.
+The challenge to validity arose because Regeneron alleged infringement by Kymab Ltd of claim 1 in the 163 Patent and claims 5 and 6 of the 287 Patent by the offer to the pharmaceutical industry of its own Kymouse, a transgenic mouse with a Reverse Chimeric Locus some of which included the whole of the human variable segments in both the heavy and the light chain loci.
+The judge found infringement proved, but that all three claims were invalid for insufficiency.
+It was common ground before this court that the outcome for the validity of all three claims turns on the validity of claim 1 of the 163 Patent (Claim 1), which reads as follows: A transgenic mouse that produces hybrid antibodies containing human variable regions and mouse constant regions, wherein said mouse comprises an in situ replacement of mouse VDJ regions with human VDJ regions at a murine chromosomal immunoglobulin heavy chain locus and an in situ replacement of mouse VJ regions with human VJ regions at a murine chromosomal immunoglobulin light chain locus.
+This is of course a product claim, seeking a monopoly for the making (at first sight a strange but serviceable word to use of an animal) of a genetically engineered mouse having the characteristics described in the claim.
+The characteristics related both to what such a mouse does (namely produce the hybrid antibodies described) and to what is contained in its genome, namely the Reverse Chimeric Locus, achieved by a process of in situ replacement of the murine variable regions in both the light and heavy chain gene loci with the corresponding but of course different human variable regions.
+The claim seeks protection for the making and exploitation of any type of mouse having those characteristics.
+Since the description of what the mouse does is more loosely worded than the description of what lies within its genome, it is the latter description which mainly controls the breadth of the claim.
+All issues as to the construction of Claim 1, ie as to what it means, were resolved in the courts below, and none are subject to appeal in this court.
+There were, for example, issues as to the meaning of in situ replacement, which no longer matter.
+But there was a more important issue about whether Claim 1 described a single type of mouse or a range of types which the courts below also resolved, in favour of the range, arising from the meaning of the phrase with human VDJ regions in the heavy chain locus, and the phrase with human VJ regions in the light chain locus.
+Did this mean (only) all the segments in the VDJ and VJ regions, or did it include any of them? Looking at the V segments, did this capture only a mouse with all 125 human V segments, or also a mouse with only one such segment, and therefore mice with any number of V segments between one and 125?
+Both the judge and the Court of Appeal concluded that the quoted phrase meant both all and any.
+It was this interpretation which led them both to conclude that Claim 1 extended to a range of qualifying types of mice, rather than to a single type.
+Taking the V segments in the heavy chain locus as the best example, the range was denominated by reference to the number, between one and 125, of the human V segments introduced into the mouses genome as part of the human variable region.
+The conclusion that Claim 1 sought to protect the making of a range of transgenic mice was not in dispute on this appeal, even though every type (or embodiment) within the range would necessarily have a form of Reverse Chimeric Locus as part of its genome.
+The fact that there is such a range is the foundation for the agreed identification of the legal issue before this court, since the question, as framed above, makes no sense if there is not a relevant range with different types or embodiments within it.
+There was nonetheless a sharp difference in this court between the parties submissions on the relevance or otherwise of the existence of this range to the question of sufficiency.
+For the appellant it was submitted that the range was of the highest importance because of its effect upon the ability of a particular type of mouse to produce a wide variety of B cells, and hence its potential to deliver a broad stream of useful antibodies.
+A mouse fitted with only (say) four V segments from the human variable region gene locus would produce only a small fraction of the variety of B cells that would be produced by a mouse fitted with the entire 125 V segments in the human variable region gene locus.
+That at least (as the judge found) was the assumption made by the skilled person as at the priority date, even though research and development since 2001 have called into question to some extent the assumption that the full range of 125 V segments is necessary to optimise the desirable combinatorial possibilities needed for there to be a reasonable prospect of delivery of useful antibodies.
+For the respondent it was submitted that the existence of this range was irrelevant, because the unique advantage conferred by the use of a Reverse Chimeric Locus, namely a cure for the immunological sickness of the recipient mouse, worked across the whole range, regardless of the amount of the human variable region DNA inserted into the murine genome, because it was the product of the retention in the hybrid gene structure of the murine constant region genes.
+In a functional sense, both these submissions are to an extent literally true, on the facts found by the courts below.
+The amount of human variable region DNA inserted into the murine genome does substantially affect the usefulness of the mouse fitted with the Reverse Chimeric Locus as (to use the judges summary) a platform for therapeutic antibody discovery.
+More to the point that was the general understanding at the time of the priority date, and the patents in issue did not teach the contrary.
+But the ground breaking invention encapsulated and disclosed in the Reverse Chimeric Locus would (and eventually did) deliver a solution to murine immunological sickness across the whole of the range captured by Claim 1, making all of them better platforms than mice which had (as previously) been fitted with fully human antibody gene structures.
+That analysis does not of itself lead to a conclusion that the range which is denominated by reference to the amount of human variable segments in the hybrid gene structure is irrelevant, for sufficiency purposes.
+One can imagine an obviously irrelevant range, such as mice which are large and small, of differing colours, or having tails of varying length.
+No one would say that Claim 1 fails for insufficiency because it includes mice with very short tails (which it does) merely because it does not teach how to make such mice.
+The quality and diversity of the stream of antibodies which the mouse exists to produce is, so far as is known, wholly unaffected by the length of its tail.
+The question whether the range denominated by the amount of human segments in the variable region within the Reverse Chimeric Locus is relevant for sufficiency purposes is best answered from the terms of Claim 1 itself.
+The claim is to mice which produce a stream of antibodies with human variable regions, and the disclosure more generally shows that this stream is for eventual use (after further engineering and mass production) in treating disease in humans.
+True it is that the particular ground breaking contribution achieved by the invention of the Reverse Chimeric Locus is the delivery of a means of preventing (or greatly reducing) murine immunological sickness, to which the range of embedded human variable segments is irrelevant, but murine immunological health is not an end in itself.
+It is a means to a different end.
+Sufficiency the Basic Principle
+Sufficiency is one of the established tools by which is measured the correspondence, or lack of it, between the protection afforded by the claim and the technical contribution to the art made by the disclosure of the invention in the patent.
+The other main tools are novelty, inventive step and industrial application: see Actavis Group PTC EHF v ICOS Corpn [2019] UKSC 15; [2019] Bus LR 1318, para 57 per Lord Hodge.
+The essence of the bargain between the patentee and the public is that the patentee dedicates the invention to the public by making full disclosure of it, in return for a time limited monopoly over its use.
+The benefit afforded to the public is not merely the disclosure, but the ability to work the invention after the expiry of the monopoly by the use of the disclosure.
+Where the invention enables patentees to make a particular product, and they seek a monopoly over the making and exploitation of the product (which is what a product claim does), they must disclose enough in the teaching of the patent to enable the public also to make the product.
+In that context work the invention means make the product: see Generics (UK) Ltd v H Lundbeck A/S [2008] EWCA Civ 311; [2008] RPC 19, para 30 per Lord Hoffmann.
+If the patentee were able to obtain a product monopoly without disclosing how to make the product, the public would get nothing of substance in return for the grant of the monopoly.
+Furthermore, other inventors would be deterred from conducting the research and development in fact necessary to take advantage of the inventive idea for the benefit of society as a whole, since during the period of the monopoly they could derive no benefit from their own inventiveness.
+Similar basic principles apply to the patenting of processes, but such distinctions as there may be do not call for examination here.
+Disclosure does not, of course, have to enable the product to be made by any member of the public, or solely by using the teaching in the patent.
+The law creates, distinctly for each patent under scrutiny, a notional skilled person or (as here) skilled team who must be enabled to make the product by the combination of the teaching in the patent, the general technical knowledge available at the priority date, and a reasonable (ie not burdensome) element of experimentation.
+But the skilled person is not expected to be inventive or even, as is sometimes said, imaginative: see Rockwater Ltd v Technip France SA [2004] RPC 46, paras 7 and 10 per Jacob LJ.
+Sufficiency Enablement across the Range
+Starting to apply those basic principles to the question before the court, is disclosure sufficient if the teaching in the patent enables only some but not all of the products within the claimed range to be made? Subject to de minimis exceptions, the instinctive answer would be: surely not.
+If in principle the patentee should be entitled to a monopoly only over the making of a product which the teaching in the patent enables the skilled person to make, why should not the same principle apply to every product type within the relevant range for which a monopoly is sought? The essential patent bargain is not satisfied in relation to products in that part of the range which cannot be made, using the teaching in the patent.
+This analysis may be tested by a simple example.
+Suppose that five types of product (types A to E) were all claimed to be more efficient or useful than their predecessors by the application to their manufacture of the same new invention.
+The patentee made separate claims in relation to each type, all supported by the same disclosure.
+Each claim would be subjected to the sufficiency test: could a product of that type be made by use of the teaching in the patent, coupled with the existing common general knowledge? Suppose that types A and B could but C, D and E could not.
+Then claims A and B would be valid, and the remainder invalid.
+But now suppose that all five types were covered by the more compendious wording of a single claim.
+Would this enable the patentee also to obtain a monopoly for the making of types C, D and E? Surely not.
+The Court of Appeal did not doubt this analysis as a general rule, but concluded that it would defeat the implementation of the essential patent bargain if applied to a case in which the invention amounted to a principle of general application, which would yield the relevant increase in efficiency or usefulness across a range of potential product types if they incorporated the invention, as and when they could be made, even if only a few could be made as at the priority date by using the teaching in the patent.
+In bare outline their reasoning was as follows.
+The patent bargain requires that the reward given to the patentee should be commensurate with the contribution which the invention makes to the article An invention which consists of a new generally applicable principle may contribute to the art by its use, not only in products which can currently be made, but equally in products which will only be capable of being made in the future, after further inventive research and development.
+To limit the patentee strictly to a monopoly over the products which can immediately be made would be to deprive the patentee of any reward for the public benefit which will be derived from the use of that same invention in future types of product.
+In a fast moving field, where new products quickly outperform their predecessors so as to render them obsolete, the reward of a monopoly limited to those immediately capable of being made would be short lived and illusory.
+Accordingly the invention should be regarded as sufficiently enabled across the range if it can be seen that it will in due course benefit all products in the range, provided that, as at the priority date, the teaching in the patent enables at least one type to be made immediately.
+Since the Reverse Chimeric Locus would be likely to deal with murine immunological sickness in mice whose genomes were fitted with all or any amount of the human variable segments, up to and including the whole of the human variable region, its invention was one of those principles of general application which should be regarded as enabled across the whole range contemplated by Claim 1.
+A monopoly over the making and exploitation of the whole range would correspond with the contribution made by the Reverse Chimeric Locus to the article
+This is a sophisticated and internally logical process of reasoning, which certainly would tend to increase the rewards obtainable by inventors in a complex, rapidly developing field like genetic engineering for use in treatment of disease.
+The question is whether it is part of the law or, perhaps, a legitimate development of it.
+The requirement for sufficiency is now enshrined in article 83 of the EPC as follows (in its English version): The European patent application shall disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the article This is replicated in section 14(3) of the Patents Act 1977 as follows: The specification of an application shall disclose the invention in a manner which is clear enough and complete enough for the invention to be performed by a person skilled in the article Article 100(b) of the EPC makes it a ground of opposition that: the European patent does not disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art; This is reflected in section 72(1)(c) of the Act which provides as a ground for revocation that: the specification of the patent does not disclose the invention clearly enough and completely enough for it to be performed by a person skilled in the article By section 130(7) of the Act, provisions including section 72(1): are so framed as to have, as nearly as practicable, the same effects in the United Kingdom as the corresponding provisions of the European Patent Convention, the Community Patent Convention and the Patent Co operation Treaty have in the territories to which those Conventions apply.
+Those terse statements of the sufficiency requirement in articles 83 and 100(b) of the EPC and in sections 14(3) and 72(1)(c) of the Act offer no particular illumination in the present debate.
+Rather the answer is to be found in the European and UK authorities on sufficiency, which were subjected to intensive review both by the Court of Appeal and in submissions to this court.
+The interpretative objective is to strive for consistency between European and UK patent law: see Generics (UK) Ltd v H Lundbeck A/S [2009] RPC 13, para 86 per Lord Neuberger of Abbotsbury.
+A chronological review of the relevant decisions of the Technical Board of Appeal of the European Patent Office (EPO) begins with Unilever/Stable Bleaches (T 226/85) ECLI:EP:BA:1987:T022685.19870317, decided in March 1987.
+The appeal included opposition on the ground of insufficiency.
+At para 2 the Board provided this general summary of the sufficiency requirement: An attack on the ground of insufficiency under article 100(b) EPC is, of course, based on article 83 EPC which requires that the disclosure of the invention must be sufficiently clear and complete for it to be carried out by the person skilled in the article It is understood that this means that substantially any embodiment of the invention, as defined in the broadest claim, must be capable of being realised on the basis of the disclosure.
+That case was not specifically about a claim for a range of products, or an assertion that the invention disclosed a generally applicable principle.
+But such a claim and assertion were directly in issue in Exxon/Fuel Oils (T 409/91) EP:BA:1993:T040991.19930318, decided in March 1993.
+This has come to be seen as the leading case on the subject of sufficiency across a range.
+In Generics v Lundbeck (supra) at para 21 Lord Walker of Gestingthorpe described the requirement that the invention be enabled across the whole of the claim as the Exxon principle.
+At certain temperatures, wax crystals suspended in diesel fuel tend to clog fuel filters in diesel engines.
+Exxon claimed a monopoly over fuel oils which, within specified temperatures, had wax crystals having an average particle size of less than 4,000 nm.
+This was challenged on the basis that the claimed range was from 1 nm to 3,999 nm, but the teaching in the patent did not enable fuel oil to be produced (by the insertion of additives) with a wax crystal size below 1,000 nm.
+This was a relevant range because the smaller the crystal the more easily it would pass through a filter.
+The sufficiency challenge was eventually met by amending the claim to exclude crystal size below 1,000 nm (although it still failed for other reasons, under article 84 of the EPC).
+But Exxon sought to defend the claim by asserting that the invention embodied a general principle, applicable across the whole claimed range, that small crystals do not clog filters.
+Prior to amendment of the claim the sufficiency challenge was upheld, in these terms, at para 2: In other words, in the present case there is absolutely no doubt that all these claims must be so construed as to relate to fuel oils containing wax crystals smaller than 1,000 nanometres.
+The appellant has admitted that no way of obtaining such fuel oils was disclosed or could be found in the body of relevant common general knowledge.
+However, in the Boards judgment, in order to fulfil the requirement of article 83 EPC, the application as filed must contain sufficient information to allow a person skilled in the art, using his common general knowledge, to carry out the invention within the whole area that is claimed.
+Later, at para 3.5, the sufficiency requirement was defined as meaning that: the disclosure of the claimed invention is only sufficient if it enables the skilled person to obtain substantially all
+embodiments falling within the ambit of the claims
+At para 3.6 the Board directly addressed the submission that the invention disclosed a general principle, and decided that, even if it did, that made no difference.
+They said that the claim must fail: regardless of whether or not the alleged principle to avoid the so called cold filter plugging (or clogging) by reducing the size of the wax crystals would be novel and inventive.
+Despite the very different subject matter there is an obvious similarity between the claimed range in the Exxon case (wax crystals from 3,999 nm down to 1 nm) and the claimed range in the present case (from all the segments in the human variable region locus down to just one V, D and J segment in the heavy chain locus and one V and J segment in the light chain locus).
+Although the lower the better in Exxon contrasts with the higher the better in the present case, it is a feature of both cases that the invention was not enabled by the disclosure in the patent at the more beneficial end of the range.
+It is noteworthy that the descriptions of the sufficiency requirement in these
+EPO cases use the adverb substantially to qualify the strictness of the requirement, meaning that it is a requirement of substance, which may on a de minimis basis still be satisfied where there are or may be a tiny or inconsequential number of embodiments which are not enabled.
+But the enablement shortfall in the present case is, as already explained, much greater than anything which could be saved by that qualification.
+In Unilever/Detergents (T 435/91) ECLI:EP:BA:2008, decided in March 1994, the Board described the requirement that the invention be enabled across the whole of the claim as a rule of general application to all inventions, as follows: In the Boards judgment the criteria for determining the sufficiency of the disclosure are the same for all inventions, irrespective of the way in which they are defined, be it by way of structural terms of their technical features or by their function.
+In both cases the requirement of sufficient disclosure can only mean that the whole subject matter that is defined in the claims, and not only a part of it, must be capable of being carried out by the skilled person without the burden of an undue amount of experimentation or the application of inventive ingenuity.
+The Board shed some useful light on what the specification in a patent must do if it is to qualify as a general principle which enables an invention across a broad claim.
+It must disclose: a technical concept fit for generalisation which makes available to the skilled person the host of variants encompassed by the respective functional definition of the . claim.
+A similar analysis of the contribution which a general concept may make to sufficiency across a range is to be found in Mycogen/Modifying plant cells (T 694/92) ECLI:EP:BA:1996, decided in May 1996, at p 19.
+The key for present purposes is that the general concept or principle must actually make the embodiments within the claim available.
+It is not enough for the general inventive concept or principle to make all those variants, if and when they become available, fit or better than their predecessors for beneficial or efficient use.
+Henry Carr J had this well in mind when he said in the present case (at para 257): I do not accept that all embodiments within the claim are unified by a single principle of a reverse chimeric locus.
+This is not a principle that enables the method to be performed, rather it is the result of successfully carrying out the method.
+He was speaking mainly of process rather than product claims at that point, but the principle is the same for both.
+In relation to Claim 1 he could equally have said that the Reverse Chimeric Locus was not a principle that enables the products to be made, rather it is the result of successfully making the products.
+Lord Pannick QC, Adrian Speck QC and Justin Turner QC for the respondent relied on three EPO cases which, they submitted, supported the Court of Appeals analysis in the present case.
+The earliest, Genentech I/Polypeptide expression (T 292/85) ECLI:EP:BA:1988, was decided in January 1988.
+The Board upheld a patent claiming processes and resulting products which produced a uniform stream of specified polypeptides by the use as input components of a range of bacteria, plasmids and regulons, wide enough to embrace types which had yet to be made available under the then state of the article The Examining Division had rejected the patent because, in its view, the specification did not enable embodiments containing such future input components to be made.
+The Board of Appeal stated, to the contrary: 3.1.2 There is, however, in the opinion of the Board, no such requirement in the European Patent Convention, nor is such principle established in normal patent practice within the Contracting States.
+The suggested features in the claims are essentially functional terms in this particular context, in spite of structural connotations, and may cover an unlimited number of possibilities.
+It follows that the features may generically embrace the use of unknown or not yet envisaged possibilities, including specific variants which might be provided or invented in the future.
+The Board continued: In appropriate cases, such as the present, it is only possible to define the invention (the matter for which protection is sought article 84 EPC) in a way which gives a fair protection having regard to the nature of the invention which has been described, by using functional terminology in the claims. 3.1.3 What is also important in the present case is the irrelevancy of the particular choice of a variant within the functional terms bacteria, regulon or plasmid.
+It is not just that some result within the range of polypeptides is obtained in each case but it is the same polypeptide which is expressed, independent of the choice of these means . 3.1.5 Unless variants of components are also embraced in the claims, which are, now or later on, equally suitable to achieve the same effect in a manner which could not have been envisaged without the invention, the protection provided by the patent would be ineffectual.
+Thus it is the view of the Board that an invention is sufficiently disclosed if at least one way is clearly indicated enabling the skilled person to carry out the invention.
+At first sight, and taken out of context, (for which see paras 42 and 53 below) the first and last of those quoted passages might appear to provide powerful support for the respondents case.
+But an attempt to rely upon them for a similar purpose was made and firmly rejected in Unilever/Detergents (T 435/91).
+At pp 10 11 the Board said: In particular, it is not adequate to take the finding in point 3.1.5 of Decision T 292/85 (OJ EPO 1989, 275) out of its context.
+It is not only stated there, as quoted by the respondent, that an invention is sufficiently disclosed if at least one way of carrying out the invention is clearly indicated enabling the skilled person to carry out the invention, but in the next sentence it is made clear that any non availability of some particular variants of a functionally defined component feature of the invention is immaterial to sufficiency as long as there are suitable variants known to the skilled person through the disclosure or common general knowledge which provide the same effect for the invention .
+Moreover, in respect of the functional expression suitable bacterium it was pointed out that the applicability of the claimed method to any kind or most species of bacteria has not been effectively challenged.
+Similar findings of fact concerned the remaining functional
+definitions in the considered claim
+Unilever/Detergents was one of the EPO cases cited above where the requirement that the specification should enable all embodiments across the whole range of the claim was firmly asserted.
+The Board plainly did not regard that requirement as necessitating any departure from the decision in the Polypeptide case although, if such a departure was the only way of reconciling them, the law ought now to be taken as laid down by the Detergents case and by the Exxon case which applied the requirement to facts closely allied with those of the present case.
+But the Polypeptide and Detergents cases can be reconciled.
+In the former the claims were (necessarily in the Boards view) framed by reference to function, and sought to protect products and processes which in fact achieved that function when applied to a broad range of input variables, none of which were themselves embodiments of the claim.
+In the Detergents case (as the headnote explains) the claim was again made by reference to function, but the patent failed to disclose any general technical principle by which the skilled person could achieve the desired result across the whole range of claimed embodiments.
+Furthermore the range of the input variables which could be used to work the invention in the Polypeptide case was held to be irrelevant.
+For reasons already explained, Claim 1 in the present case is of the kind which falls within the Detergents and Exxon line of EPO authority.
+Mention should briefly be made of two EPO decisions which followed and applied the Polypeptide case.
+The first, decided in June 1988, is Nabisco/Micro organisms (T 361/87) ECLI:EP:BA:1988.
+A claim to protect a means of preparing fructose was challenged for sufficiency on the ground that a certain type of input variable falling within the claim only became available to persons skilled in the art after the priority date.
+The challenge was rejected in part by application of the cited passage in the Polypeptide case, but also because the description contained sufficient teaching to enable the invention to be used with that new input element, once available.
+The decision takes the matter no further for the purposes of the present case than does the Polypeptide case.
+The second, more recent, case is Novartis II/Transgenic plant (G 1/98) ECLI:EP:BA:1999, decided by the Enlarged Board in December 1999.
+The decision makes brief reference to both the Polypeptide and Nabisco cases as demonstrating that the requirement that the claim be enabled across the full range of the claim is not without exception.
+Save that it suggests that those earlier cases should not simply be regarded as having been overruled by the Detergents and Exxon line of EPO authority, it sheds little further light on the necessary distinction between the two.
+Reference was also made to the decision of the German Federal Supreme Court in Dipeptidyl Peptidase Inhibitoren (X ZB 8/12).
+It was about a medical use patent, rather than a product claim.
+It sought to protect a method of using a range of known substances for lowering the blood glucose level in mammals, in a manner which would be simple, cost efficient and not too burdensome on the patient, by comparison with methods already known.
+As in the Polypeptide case it was held not to be fatal to the validity of the patent that it applied to a range of known input substances and extended to substances not yet available.
+Neither the outcome nor the language used by the court (at paras 19 20) takes the matter any further than either the Polypeptide or Nabisco cases, when read in the context of a medical use claim.
+It is convenient at this point to explain why the present case falls on the Detergents/Exxon side of this line.
+The reason why Claim 1 fails to enable the skilled person to make mice with Reverse Chimeric Loci across the whole range of the human variable regions of the hybrid antibody gene structure is not because any of the V, D and J segments had yet to be discovered or mapped by the priority date, or even because any of them could not be inserted into mice.
+The whole of the human variable region gene locus had already been mapped.
+It could be (and had been) inserted into mice, but only when attached to the human constant region genes, thereby causing murine immunological sickness.
+The problem facing those skilled in the art at the priority date was that there was no known way, even using the teaching in the patents, to combine more than a very small part of the human variable region gene locus with the endogenous murine constant region gene locus, in the same hybrid gene structure.
+It took several years, and significant further inventive steps, before methods were developed sophisticated enough to accommodate the whole of the human variable and murine constant region genes in a single hybrid gene structure.
+Thus the inventive shortfall at the priority date lay not in the range of possible inputs to which the invention could be applied, but in the inability to create a Reverse Chimeric Locus involving the whole (or anything more than a very small part of) the human variable region.
+It was truly a shortcoming in the invention itself, which, as at the priority date, limited its use to only a small part of the relevant range within the scope of Claim 1.
+In sharp contrast the inventions in the Polypeptide line of cases did disclose a sufficient general principle which, without any further inventive step, would enable the skilled person to work the relevant invention by using, as input elements, examples of those components described generally in the claims, which were unavailable as at the priority date, in order to make products across the scope of the claim.
+The fact that the claim permitted alternative examples of input elements, as yet unavailable at the priority date, is the exception to the requirement for enablement across the whole scope of the claim to which the Enlarged Board made brief reference in the Novartis II decision.
+A study of the relevant UK cases reveals a similar approach to the existence and nature of this exception to the Exxon principle.
+The earliest, and perhaps best known, are the decisions of the Court of Appeal and the House of Lords in Biogen Inc v Medeva plc [1995] RPC 25 and [1997] RPC 1.
+It was, like the present, a case about genetic engineering, but the claim sought to protect a genetic molecule rather than a whole mouse.
+The claim was that the molecule would, if inserted into a suitable host cell, cause the cell to make antigens of the Hepatitis B virus.
+Both the Court of Appeal and the House of Lords held that the claim failed, inter alia for insufficiency, but for different reasons.
+Apart from the holding that sufficiency is to be tested as at the priority date (a rule which is not in dispute in this appeal) the case is of importance for present purposes only because of the reliance placed by the parties on different dicta by Hobhouse LJ (in the Court of Appeal) and Lord Hoffmann (in the House of Lords) about the sufficiency requirement and the principles of UK law to be derived from the main EPO decisions cited above.
+It is, again, important not to take the dicta out of context.
+In the Court of Appeal Hobhouse LJ addressed the submission, accepted by
+the trial judge, that the sufficiency requirement was satisfied whenever the patentee demonstrated that the invention enabled one embodiment of the claimed range to be made.
+Having cited extensively from the Exxon case, and held that it correctly represented UK law, he continued, at pp 98 99: The disclosure must be sufficient to enable the whole width of the claimed invention to be performed.
+What will suffice to satisfy this criterion will vary depending upon the nature of the claim that has been made.
+It is essential to apply the test having regard to the extent of the claim.
+It is not the law that the disclosure of a single embodiment will always satisfy the requirement regardless of the width of the claim.
+Having noted counsels attempt to limit his submission to cases where the patent related to the invention of a principle, he continued: The disclosure must be wide enough to enable the man skilled in the art to perform the claimed invention across its full width not just by reference to one type of antigen or one type of host.
+The plaintiff had a choice as to how widely it would draw its claim.
+If it chose to draw it widely, it must accept the co relative obligation to make a correspondingly wide disclosure.
+If it is unable to make that disclosure, that shows that it is seeking to claim an invention to which it is not entitled.
+In the House of Lords Lord Hoffmann described the submission that enablement of a single embodiment was sufficient (rejected by Hobhouse LJ) as having originated from a misunderstanding of the meaning of the Polypeptide case by Aldous J (who was the trial judge in Biogen) in Chiron Corpn v Organon Teknika Ltd (No 3) [1994] FSR 202.
+At pp 48 49 he set out his own understanding of the Polypeptide case as follows: In other words, the applicants had invented a general principle for enabling plasmids to control the expression of polypeptides in bacteria and there was no reason to believe that it would not work equally well with any plasmid, bacterium or polypeptide.
+The patent was therefore granted in general terms.
+He continued: In fact the Board in Genentech I/Polypeptide expression was doing no more than apply a principle of patent law which has long been established in the United Kingdom, namely, that the specification must enable the invention to be performed to the full extent of the monopoly claimed.
+If the invention discloses a principle capable of general application, the claims may be in correspondingly general terms.
+The patentee need not show that he has proved its application in every individual instance.
+On the other hand, if the claims include a number of discrete methods or products, the patentee must enable the invention to be performed in respect of each of them.
+Thus if the patentee has hit upon a new product which has a beneficial effect but cannot demonstrate that there is a common principle by which that effect will be shared by other products of the same class, he will be entitled to a patent for that product but not for the class, even though some may subsequently turn out to have the same beneficial effect: see May & Baker Ltd v Boots Pure Drug Co Ltd (1950) 67 RPC 23, 50.
+On the other hand, if he has disclosed a beneficial property which is common to the class, he will be entitled to a patent for all products of that class (assuming them to be new) even though he has not himself made more than one or two of them.
+He continued by treating the Exxon case as reinforcing the established principle of UK law which he had earlier described.
+In the event Lord Hoffmann decided that the patent failed for insufficiency because it disclosed only one method of working the invention, whereas there were other methods available to the skilled person.
+He did not disagree with Hobhouse LJs analysis of the law.
+At p 51 he concluded: This shows that there is more than one way in which the breadth of a claim may exceed the technical contribution to the art embodied in the invention.
+The patent may claim results which it does not enable, such as making a wide class of products when it enables only one of those products and discloses no principle which would enable others to be made.
+Or it may claim every way of achieving a result when it enables only one way and it is possible to envisage other ways of achieving that result which make no use of the invention. (my underlining)
+Both the Court of Appeal and the respondent in the present case placed great emphasis on the reference by Lord Hoffmann to a common principle by which products in a class may share the same beneficial effect, as if this was separate and additional to the case of a general principle which enables a whole class of products to be made.
+He did so by reference to the May & Baker Ltd v Boots Pure Drug Co Ltd (1950) 67 RPC 23 case, where a beneficial therapeutic effect was said to be of the essence of the claim.
+But the case before him and the submission with which he was dealing were all about the question whether the disclosure needed to enable all, or only some, of the embodiments of a claimed range to be made, as he acknowledged in the last of the passages quoted (and underlined) above.
+In Kirin Amgen Inc v Hoechst Marion Roussel Ltd [2005] RPC 9, the trial judge had cited Lord Hoffmanns concept of a general principle of beneficial effect in Biogen.
+Lord Hoffmann commented, at p 202 (para 112): This gave rise to a good deal of argument about what amounted to a principle of general application.
+In my opinion there is nothing difficult or mysterious about it.
+It simply means an element of the claim which is stated in general terms.
+Such a claim is sufficiently enabled if one can reasonably expect the invention to work with anything which falls within the general term.
+For example, in Genentech I/Polypeptide expression (T 292/85) [1989] OJ EPO 275, the patentee claimed in general terms a plasmid suitable for transforming a bacterial host which included an expression control sequence to enable the expression of exogenous DNA as a recoverable polypeptide.
+The patentee had obviously not tried the invention on every plasmid, every bacterial host or every sequence of exogenous DNA.
+But the Technical Board of Appeal found that the invention was fully enabled because it could reasonably be expected to work with any of them.
+Lord Hoffmanns reference to the Polypeptide case as an example shows that he was not thinking in terms of general beneficial effect.
+By reasonably expect the invention to work in relation to a product claim he meant reasonably expect the product to be able to be made.
+This is clear from dicta of his, sitting in the Court of Appeal, in the third of the UK cases, Generics (UK) Ltd v H Lundbeck A/S [2008] RPC 19.
+Two product claims were rejected by the trial judge for insufficiency, because the patent disclosed only one of a number of methods of making the products, following Biogen.
+Lord Hoffmann, with whom Jacob and Smith LJJ agreed, reversed him.
+At paras 29 30 he said: In order to decide whether the specification is sufficient, it is therefore first necessary to decide what the invention is.
+That must be found by reading and construing the claims, in which the inventor identifies what he claims to be his invention.
+As the Board of Appeal of the European Patent Office said in Exxon/Fuel Oils (T 409/91) [1994] OJ EPO 653, para 3.3, It is the definition of the invention in the claims that needs support.
+Section 60(1) of the Act makes it clear that a claim may be either to a product or a process.
+In the case of a product claim, performing the invention for the purposes of section 72(1)(c) means making or otherwise obtaining the product.
+In the case of a process claim, it means working the process.
+A product claim is therefore sufficiently enabled if the specification discloses how to make it.
+There is nothing to say that it must disclose more than one way.
+At paras 34 36 he continued: Thus, as a matter of construction, the House of Lords interpreted the claim as being to a class of products which satisfied the specified conditions, one of which was that the molecule had been made by recombinant technology.
+That expression obviously includes a wide variety of possible processes.
+But the law of sufficiency, both in the United Kingdom and in the EPO, is that a class of products is enabled only if the skilled man can work the invention in respect of all members of the class.
+The specification might show that this has been empirically demonstrated or it might disclose a principle which can reasonably be expected to apply across the class: see T 292/85 Polypeptide expression/Genentech [1989] OJ EPO 275; T 409/91 Exxon/Fuel Oils [1994] OJ EPO 653; Kirin Amgen Inc v Hoechst Marion Roussel Ltd [2005] RPC 9, para 112.
+But the specification in Biogen described only one method of making the molecule by recombinant technology and disclosed no general principle.
+It was easy to contemplate other methods about which the specification said nothing and which would owe nothing to the matter disclosed.
+In my opinion, therefore, the decision in Biogen is limited to the form of claim which the House of Lords was there considering and cannot be extended to an ordinary product claim in which the product is not defined by a class of processes of manufacture.
+It is true that the House in Biogen endorsed the general principle stated by the Board of Appeal in Exxon/Fuel Oils (T 409/91) [1994] OJ EPO 653, that: the extent of the patent monopoly, as defined by the claims, should correspond to the technical contribution to the art in order for it to be supported or justified.
+The judge said that in holding claim 1 insufficient, he was applying this principle.
+But then he treated the relevant technical contribution to the art as being the inventive step, namely a way of making the enantiomer.
+That, I respectfully consider, was a mistake.
+When a product claim satisfies the requirements of section 1 of the 1977 Act, the technical contribution to the art is the product and not the process by which it was made, even if that process was the only inventive step.
+The House of Lords dismissed the appeal.
+Lord Walker placed emphatic reliance upon the Exxon case as the leading statement of the law on sufficiency in relation to a product claim.
+At para 20 he said: The disclosure must be such as to enable the invention to be performed (that is, to be carried out if it is a process, or to be made if it is a product) to the full extent of the claims.
+Analysis
+Reflection upon those European and UK authorities yields the following principles: i) The requirement of sufficiency imposed by article 83 of the EPC exists to ensure that the extent of the monopoly conferred by the patent corresponds with the extent of the contribution which it makes to the article ii) In the case of a product claim, the contribution to the art is the ability of the skilled person to make the product itself, rather than (if different) the invention. iii) Patentees are free to choose how widely to frame the range of products for which they claim protection.
+But they need to ensure that they make no broader claim than is enabled by their disclosure. iv) The disclosure required of the patentee is such as will, coupled with the common general knowledge existing as at the priority date, be sufficient to enable the skilled person to make substantially all the types or embodiments of products within the scope of the claim.
+That is what, in the context of a product claim, enablement means. v) A claim which seeks to protect products which cannot be made by the skilled person using the disclosure in the patent will, subject to de minimis or wholly irrelevant exceptions, be bound to exceed the contribution to the art made by the patent, measured as it must be at the priority date. vi) This does not mean that the patentee has to demonstrate in the disclosure that every embodiment within the scope of the claim has been tried, tested and proved to have been enabled to be made.
+Patentees may rely, if they can, upon a principle of general application if it would appear reasonably likely to enable the whole range of products within the scope of the claim to be made.
+But they take the risk, if challenged, that the supposed general principle will be proved at trial not in fact to enable a significant, relevant, part of the claimed range to be made, as at the priority date. vii) Nor will a claim which in substance passes the sufficiency test be defeated by dividing the product claim into a range denominated by some wholly irrelevant factor, such as the length of a mouses tail.
+The requirement to show enablement across the whole scope of the claim applies only across a relevant range.
+Put broadly, the range will be relevant if it is denominated by reference to a variable which significantly affects the value or utility of the product in achieving the purpose for which it is to be made. viii) Enablement across the scope of a product claim is not established merely by showing that all products within the relevant range will, if and when they can be made, deliver the same general benefit intended to be generated by the invention, regardless how valuable and ground breaking that invention may prove to be.
+Application of those principles to the facts of the present case shows clearly that Claim 1 fails for insufficiency.
+At the priority date the disclosure of the two patents, coupled with the common general knowledge, did not enable transgenic mice to be made with a Reverse Chimeric Locus containing more than a very small part of the human variable region gene locus.
+The extent to which that variable region of the human antibody gene structure could be included in the hybrid antibody gene structure was, at that date, understood to be a very important factor affecting the diversity of useful antibodies capable of being discovered by the use of transgenic mice, so that the range thus denominated was a relevant range for sufficiency purposes, even though it did not affect the immunological health of the transgenic mouse.
+Thus the claim to a monopoly over the whole of that range went far beyond the contribution which the product made to the art at the priority date, precisely because mice at the more valuable end of the range could not be made, using the disclosure in the patents.
+A comparison between those principles and those applied by the Court of Appeal reveals that they did not correctly apply the law as it stands, for the following reasons.
+First, I cannot accept their summary of the essential patent bargain.
+In the case of a product claim, the contribution to the art is the product which is enabled to be made by the disclosure, not the invention itself.
+Patents are about products and processes, not pure ideas.
+Secondly, I do not accept their conclusion that an invention may be enabled in relation to a particular type of product falling within the scope of the claim even if it does not permit the skilled person to make it.
+They thought it was enough that the benefits which the invention unlocked (in terms of preventing murine immunological sickness) would in due course be realised over the whole range, if and when all embodiments within the range could be made.
+In practical terms they upheld a monopoly over that part of the range of products answering the broad description in Claim 1 which was likely to be of most benefit to medical genetic engineering, at a time when the disclosure in the patent only enabled the skilled person to make products over a very small part of the range, and at the least beneficial end of the range denominated by the amount of the human variable region gene locus incorporated in the hybrid gene structure.
+It is now known that the type of mouse fitted with a Reverse Chimeric Locus which actually does serve as the gold standard in the art has the whole of the human variable region gene locus as part of its hybrid antibody gene structure.
+Yet the Court of Appeal would have upheld a monopoly for its manufacture and exploitation when the disclosure in the patent, coupled with the common general knowledge, would not have enabled a skilled person to make such a mouse at all.
+The ability of both the appellant and the respondent to make such a mouse now depends upon further (and different) inventions separately made by each of them some years after the priority date.
+Nor is the Court of Appeals analysis to be regarded as a legitimate development of the law.
+The sufficiency requirement, namely that the disclosure in the patent should enable substantially all products within the scope of a product claim to be made by the skilled person as at the priority date, is part of the bedrock of the law, worked out over time both in the UK and by the EPO, which is essential to prevent patentees obtaining a monopoly which exceeds their contribution to the article To water down that requirement would tilt the careful balance thereby established in favour of patentees and against the public in a way which is not warranted by the EPC, and which would exceed by a wide margin the scope for the development of the law by judicial decision making in a particular Convention state.
+It may well be, as the Court of Appeal clearly thought, that the consequence of confining the patentee with a ground breaking invention to protection only over a range of products which the invention currently enables to be made at the priority date will give the patentee scant and short lived reward for their efforts and ingenuity, viewed in particular with the benefit of hindsight.
+The Court of Appeal put this point forcefully to counsel for Kymab at the hearing in October 2017, and the transcript discloses that little was said in response by way of mitigation.
+A little more was attempted in this court in the appellants reply, but it would not be a useful exercise to engage with it.
+What matters is that it is settled law, in relation to a product claim, that sufficiency requires substantially the whole of the range of products within the scope of the claim to be enabled to be made by means of the disclosure in the patent, and this both reflects and applies the principle that the contribution to the art is to be measured by the products which can thereby be made as at the priority date, not by the contribution which the invention may make to the value and utility of products, the ability to make which, if at all, lies in the future.
+I would therefore allow the appeal.
+LADY BLACK: (dissenting)
+I differ from the view of the majority and would have dismissed this appeal for reasons which I will set out shortly.
+I should first explain that, in what follows, in order to express myself as clearly as possible, I have at times consciously used simplified descriptions of the scientific concepts to which I need to refer.
+The issue raised by the appeal
+Lord Briggs says, at para 5, that the legal question that arises is whether a product patent, the teaching of which enables the skilled person to make some, but not all, of the types of product within the scope of the claim, passes the sufficiency test where the invention would contribute to the utility of all the products in the range, if and when they could be made.
+It is useful to bear in mind also how the issue was formulated by the parties in the Statement of Facts and Issues for this court, which was as follows: Is it a requirement for a valid patent under article 83 EPC that the description enables the skilled reader (at the date of the Patent) to make products across the whole scope of the claim, or is it enough that they could make products within only a limited part of that range, provided that all the products within the scope of the claim (if and when they could be made) would use the invention?
+The nature of the claims
+The Court of Appeal described claim 1 of the 287 patent as a method claim directed to the modification of an endogenous immunoglobulin heavy chain locus in a mouse ES cell such that murine V, D and J gene segments are replaced by human V, D and J segments and the locus produces hybrid antibodies containing human variable regions and mouse constant regions (para 114), the method having four steps as described in para 115.
+Claims 5 and 6 of the 287 patent were described as product by process claims (para 121).
+The issues in the appeal have been considered through the medium of claim 1 of the 163 patent, so it is worth setting that out again here.
+It is a claim to: A transgenic mouse that produces hybrid antibodies containing human variable regions and mouse constant regions, wherein said mouse comprises an in situ replacement of mouse VDJ regions with human VDJ regions at a murine chromosomal immunoglobulin heavy chain locus and an in situ replacement of mouse VJ regions with human VJ regions at a murine chromosomal immunoglobulin light chain locus.
+The Court of Appeal said of this claim that it is directed to a transgenic mouse in which there has been in situ replacement of mouse V, D and J regions on the heavy chain by human V, D and J regions; and in which there has been in situ replacement of mouse V and J regions on the light chain by human V and J regions (para 125).
+It then observed (para 126) that the claim contains no requirement that any particular size of DNA fragment is inserted or replaced; nor is there any limit to the number of steps by which the claim requirements may be met.
+Further, the reference to V, D and J regions must mean one or more V, D and J segments respectively.
+The Court of Appeal agreed with the judge that the claim was: not confined to a single product.
+It includes mice in which different amounts of mouse V, D and J regions (of the heavy chain) and mouse V and J regions (of the light chain) have been replaced with human V, D and J regions and V and J regions, respectively.
+So it includes, for example, a mouse in which one V, one D, and one J region (of the heavy chain) and one V and one J region (of the light chain) have been replaced and mice in which several such regions have been replaced. (para 127(i)) and that it: extends to a mouse in which the entire murine variable gene locus has been replaced with the entire human variable gene locus. (para 127(iv))
+Henry Carr Js determination and how it fared in the Court of Appeal
+Henry Carr J made two key decisions which formed the foundation for the rest of his conclusions.
+First, he had to determine the proper construction of the claims in issue, in particular what was meant by in situ replacement in claim 1 of the 287 Patent.
+He accepted Regenerons proposed construction of the words, as did the Court of Appeal.
+No construction issue has been pursued before this court.
+Secondly, Henry Carr J had to make findings as to the feasibility of putting the invention into practice, which he did focussing specifically on claim 1 of the 287 Patent.
+He rejected the approaches proposed, for varying reasons, concluding that the whole subject matter defined in the claim was not capable of being performed at the priority date without undue burden and without invention (para 257).
+He considered that the difficulty did not relate to some hypothetical puzzle at the edge of the claim, but rather to the central disclosure of the specification, and the amounts of genetic sequence of which it contemplates the deletion and insertion.
+None of the methods disclosed would have worked, and the task could not have been achieved, if it could be achieved at all at the priority date, without a great deal of creative thinking.
+On appeal from the trial judge, Regeneron argued that it was in fact possible for a skilled team to have implemented the reverse chimeric locus without undue effort by means of minigenes.
+The Court of Appeal was persuaded that this was correct.
+It was satisfied that the use of minigenes was part of the common general knowledge, and said (para 200): In our judgment and given the idea of the reverse chimeric locus, it would have been obvious to the skilled team and technically feasible to produce a transgenic mouse that would produce hybrid antibodies containing human variable regions and mouse constant regions, and in which mouse V, D and J segments had been replaced with human V, D and J segments in the mouse immunoglobulin heavy chain gene locus, and mouse V and J segments had been replaced with human V and J segments in the immunoglobulin light chain gene locus.
+Given that it differed from Henry Carr J in this respect, the Court of Appeal inevitably had a different starting point for its consideration of the central legal issue of whether the claim was enabled across its whole scope.
+As the Court of Appeals finding of technical feasibility has not been challenged before us, we share the Court of Appeals starting point.
+But it is nevertheless important to note the following observation that Henry Carr J made at para 257, and to which Lord Briggs refers at para 38, with approval: I do not accept that all embodiments within the claim are unified by a single principle of a reverse chimeric locus.
+This is not a principle that enables the method to be performed, rather it is the result of successfully carrying out the method.
+The Court of Appeals determination of the enablement issue
+Having reviewed various decisions of the Technical Boards of Appeal of the EPO and of the domestic courts, the Court of Appeal turned at para 250 to the application of the law to the instant case.
+This involved, inter alia, a consideration of the nature and extent of the contribution to the art that the disclosure of the invention had made, which Regeneron submitted Henry Carr J had failed to appreciate properly.
+The Court of Appeal noted that the claim is drawn in general language and is of broad scope, but that: each of the mice it encompasses has the reverse chimeric locus, that is to say, it is a mouse which produces hybrid antibodies containing human variable regions and mouse constant regions, and in which mouse V, D and J segments have been replaced with human V, D and J segments at a chromosomal immunoglobulin heavy chain locus, and mouse V and J segments have been replaced with human V and J segments at a chromosomal immunoglobulin light chain locus. (para 254)
+It observed that the disclosure of the reverse chimeric locus was a major contribution to the art for it provided the answer to a significant problem which those working in the field had faced, namely that transgenic mice produced by conventional methods were immunologically sick [whereas those] with the reverse chimeric locus do not suffer from this deficiency (para 255).
+It proceeded to characterise the invention as a principle of general application, supporting that conclusion as follows (para 256): The character of this invention is therefore such that any transgenic mouse which falls within the scope of the claim and so produces hybrid antibodies containing the human variable regions and mouse constant regions will benefit from the technical contribution the disclosure of the 163 patent has made to the art, and will do so irrespective of the antigen which is used to challenge the mouse.
+The court then noted, at paras 257 to 259, that it was satisfied that the ability of the skilled team to implement the teaching of the 163 patent had been established.
+It was also noted that the mice produced would have had only a subset of the human V gene segments, although they would have had an immunological response close to that of wild type mice.
+The court continued (para 260): These points, taken together, strongly suggest to us that the 163 patent does disclose the invention clearly enough and completely enough for it to be performed by a person skilled in the article The character of the invention is one of general application.
+It applies to any mouse challenged with any antigen and the benefit it confers will be shared by every mouse falling within the scope of the claim.
+The skilled team would reasonably expect the invention to work across the scope of the claim and that expectation would be correct.
+What is more, there is nothing in the claim which could have been envisaged without the invention and, were protection to be limited to only those embodiments which could have been made at the priority date without undue effort, the protection provided by the patent would have rapidly become ineffectual.
+A further passage is of importance, taken from the following paragraphs in which the court examines the implications of it not being possible to perform, precisely, elements of what was described in the examples.
+In explaining why this did not render the patent insufficient, the court recalled that the law does not require a patentee to enable each and every embodiment of a claimed invention, but recognises that a claim may encompass inventive improvements of what is described and that a specification is not insufficient merely because it does not enable the person skilled in the art to make every such invention.
+It then continued (para 265): It is important, however, that any such improvement is still a way of working the original invention.
+In this case we have no doubt that this is the case: there is no mouse falling within the scope of claim 1 of the 163 patent which does not embody the reverse chimeric locus and enjoy the benefits it brings.
+Claim 1 of the 163 patent was therefore found not to exceed the contribution to the art which the disclosure of its specification made, the extent of the patent monopoly corresponding to the technical contribution and being adequately enabled across its scope (para 267).
+The 287 patent was seen to be subject to very similar considerations.
+Here too, the invention was found to be one of general application, being a methodology of making the reverse chimeric locus in which successful integrations using LTVECs are detected by using the MOA assay (para 272).
+Claims 1, 5 and 6 of that patent were also adequately enabled across its scope (paras 273 and 274).
+It is useful to note particularly what the Court of Appeal said, at the end of its judgment, in summarising what it saw as the reasons why its conclusion was different from that of the very experienced first instance patent judge.
+It seems to me that this short summary reveals what is at the heart of the Court of Appeals reasoning.
+It said: we are satisfied that, in assessing the sufficiency of the disclosure of the patents, [the judge] did not attach sufficient weight to the character of the invention as claimed in each of the claims in issue, the contribution that its disclosure made to the art and the need to confer a fair degree of protection on the patentee. (para 275)
+The approach of the majority in this court
+The majority in this court would allow the appeal, holding that the Court of Appeal failed to apply the law correctly and should have concluded that Regenerons claims failed for insufficiency.
+In essence, this is because the disclosure of the patents did not enable the making of a mouse which incorporated any more than a small part of the human variable region, yet claimed a monopoly including mice incorporating a far greater quantity of the human variable region.
+In the majoritys view, the claims therefore fail to satisfy the requirement that substantially the whole range of products within the scope of the claim be enabled.
+Discussion
+It is common ground between the parties, established in the authorities, and acknowledged in Lord Briggs judgment (see for example para 56(vi)), that an invention may disclose a principle of general application.
+It is also common ground between the parties (and again see Lord Briggs judgment at para 56(vi)) that there is no exception from the ordinary principles of enablement for such inventions; the invention must be enabled across its full scope, as with any other invention.
+It is when it comes to characterising this claim, determining what its scope is, and deciding whether it is enabled across that full scope that the argument arises.
+The claim is framed in terms of the mouse, specifying what it does (produces the hybrid human/mouse antibodies), and what it has in it (the reverse chimeric locus).
+As the trial judge said, and the Court of Appeal reiterated, it is not confined to a single product in that it includes mice in which different amounts of the mouse variable regions have been replaced, extending to a mouse with the entire murine variable region replaced with the entire human variable gene locus.
+It is the existence of this range of mice that leads the majority of my colleagues to conclude that, as only a limited amount of replacement was possible at the priority date, the claim was insufficient.
+But this was not the view of the Court of Appeal, and it is important to attempt to isolate the point at which the two approaches diverge.
+As I have already foreshadowed, it seems to me that there is little, if any, real disagreement with the Court of Appeals statement of the legal principles.
+It is in the application of them that the paths diverge.
+Lord Briggs says, at para 58, that the Court of Appeal did not correctly apply the law as it stands, having failed to recognise that the contribution to the art is the product which is enabled to be made by the disclosure, not the invention itself, and having erroneously concluded that it was enough that the benefits unlocked by the invention would in due course be realised over the whole range if and when all embodiments could be made.
+The Court of Appeals characterisation of the claim was informed by the principle that (to use the Board of Appeals formulation in Unilever/Detergents (T 435/91)) the protection covered by a patent should correspond to the technical contribution to the art made by the disclosure of the invention described therein.
+This principle, and the other principles that are relevant to determining sufficiency, can only be applied having close regard to the facts of the particular case, and the authorities make clear that an assessment of sufficiency does depend very much upon the nature of the individual invention and the facts of the particular case, see for example Unilever/Detergents (T 435/91), para 2.2.1.
+The Court of Appeal here recognised the general language used in the claim and its broad scope (Court of Appeal judgment, para 254), and we know that it had well in mind that it extended to a mouse with its entire variable gene locus replaced with the entire human variable gene locus (ibid, para 127).
+It focussed its analysis firmly on the reverse chimeric locus.
+The disclosure of the reverse chimeric locus was, it observed, a major contribution to the art because it solved the problem of immunological sickness (ibid, para 255).
+Every mouse encompassed in the claim will have the reverse chimeric locus, or, as the court put it at para 256 will benefit from the technical contribution the disclosure of the 163 patent has made to the article Every such mouse will, in the terms of the issue stated by the parties in the Statement of Fact and Issues, use the invention.
+This is what led the court to characterise the claim as a principle of general application (ibid, para 256).
+For sufficiency, it was necessary for the skilled team to be able to produce transgenic mice incorporating the reverse chimeric locus and producing hybrid antibodies, and this they could do, producing mice which would have had a near wild type response (ibid, para 264).
+That the claim encompassed inventive improvements (more human variable region incorporated) did not make it insufficient as any such improvement was still a way of working the original invention (ibid, para 265).
+Lord Briggs, seeking to concentrate attention upon the fact that this is a product claim, and to emphasise that patents are about products and not about ideas, chooses terms which focus rather upon the mice containing the reverse chimeric locus (mice fitted with a reverse chimeric locus as Lord Briggs terms them at para 58).
+This difference of terminology is perhaps of less significance than the spotlight that he trains upon the range of the mice, extending from mice fitted with a reverse chimeric locus incorporating a subset of the human variable region (feasible at the time of the claim) to mice fitted with a reverse chimeric locus incorporating the whole human variable region (achievable now but not at the time of the claim).
+It is this focus on the quantum of replaced material in the reverse chimeric locus, rather than on the reverse chimeric locus as a general principle, that leads to a different conclusion about sufficiency from that reached by the Court of Appeal.
+Given that I am alone in my disagreement with my colleagues, I can see little to be gained by a lengthy exegesis on the issues arising in the appeal.
+As I see it, and as perhaps appears from my exploration of the differences between the approach of this court and that of the Court of Appeal, the case turns upon how this particular claim is characterised, and how the law is applied to the particular facts of this case.
+I do not perceive the errors in the Court of Appeals approach that have been identified by the majority, and I would not have interfered with their conclusion that the claim here relates to a principle of general application.
+It still has to be enabled across its scope, but seen in this way, it is so enabled, being deployed in each mouse across the range, irrespective of the quantum of human material incorporated.
+Furthermore, it can also be said that protection across the range coincides with the technical contribution of the patents which was to solve the problem of immunological sickness, or putting it (loosely) another way, to facilitate the making of immunologically efficient mice.
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+Mr Thomas Arthur Watkins lived near Tredegar in South Wales.
+He was employed by the National Coal Board (later British Coal Corporation) (British Coal) as a miner from 1964 until 1985.
+In that employment he was required to use vibratory tools and as a result of such exposure, in common with very many other miners, Mr Watkins developed Vibration White Finger (VWF) which is a form of Hand/Arm Vibration Syndrome (HAVS).
+He first experienced the symptoms, which consist of whitening, stiffness, numbness and tingling of the fingers of both hands, not later than the early 1980s.
+After he left the employment of British Coal in 1985, he worked as a driver of road sweeping vehicles until he retired in 1997.
+Shortly after that he was diagnosed with osteoarthritis in both knees which became increasingly acute.
+One symptom of VWF can be a reduction in grip strength and manual dexterity in the fingers.
+A common, although not invariable, consequence is that a person suffering from these conditions becomes unable, without assistance, to carry out routine domestic tasks such as gardening, do it yourself or car maintenance.
+The Scheme
+A group of test cases, representative of some 25,000 similar claims, established that British Coal had been negligent in failing to take reasonable steps to limit the exposure of employed miners to VWF from the excessive use of vibratory tools (Armstrong v British Coal Corpn [1998] CLY 975).
+As a result, the Department for Trade and Industry (DTI), which had assumed responsibility for British Coals relevant liabilities, set up a scheme in 1999 to provide tariff based compensation to miners who suffered from VWF as a result of exposure to excessive vibration (the Scheme).
+The Scheme was administered pursuant to a Claims Handling Arrangement (the CHA) dated 22 January 1999 and made between the DTI and a group of solicitors firms representing claimant miners suffering from VWF.
+The central objective of the CHA was to enable very large numbers of similar claims to be presented, examined and resolved expeditiously.
+The Scheme contemplated the making of two main types of compensatory award to miners suffering from VWF, corresponding broadly with general and special damages for personal injuries.
+The Scheme provided for compensation to be paid for pain, suffering and loss of amenity (General Damages), and for handicap on the labour market and other financial losses (Special Damages) including past and/or future loss of earnings.
+Pursuant to a Services Agreement dated 9 May 2000 the special damages could include a services award for qualifying miners in respect of the need for assistance in performing domestic tasks.
+Under the Scheme, each claimant was required to complete a questionnaire on his work history and IRISC, the claims handling organisation which acted on behalf of the DTI, would then allocate him to a particular occupational group, depending on his likely exposure to vibration.
+He would then undergo a medical examination in accordance with a defined Medical Assessment Process (MAP) by a doctor appointed under the Scheme.
+The resulting MAP 1 report was in standard format and was intended to determine whether the claimant suffered from VWF and, if so, the severity of the condition by reference to the stagings on the Stockholm Workshop Scale.
+The V score was a measure of the vascular symptoms and depended largely on reporting from the patient.
+The extension of blanching was recorded diagrammatically by the examining doctor.
+The sensori neural signs and symptoms were assessed partly from the claimants account and partly by standardised testing, the results of which were recorded as Sn markings.
+It was open to a claimant to challenge the findings of the MAP 1 report but there was no provision for IRISC to do so.
+Within 56 days of receipt of the MAP 1 report IRISC was obliged to make an offer of compensation or to reject the claim with reasons.
+The Services Agreement of 9 May 2000 was incorporated in the CHA as Schedule 7(1).
+It recorded an agreed approach to compensation for services.
+The respective medical experts of the parties to the Scheme rejected the idea that there should be an individual assessment of each claimants ability to carry out particular household tasks.
+Instead it was agreed that an assumption be made that once the condition had reached a certain level(s) causation it should be presumed that a man could no longer carry out certain tasks without assistance.
+The examining doctor would then merely have to consider whether there were any other conditions (VWF apart) which of themselves would have prevented the man from undertaking the task in question thereby rebutting the presumption. (Schedule 7.1, paragraph 3.1(ii)) Six tasks were identified for this purpose: gardening work, window cleaning, do it yourself, decorating, car washing and car maintenance (Schedule 7.1, paragraph 3.3).
+Claims under the Services Agreement were processed in the following way.
+The experts produced a matrix identifying in respect of each staging of 2V and 2Sn late, or higher, the tasks for which a claimant would be presumed to require assistance.
+Once a claimant had a staging of at least 2V or 2Sn late, a claimant was entitled to a services award if he had previously performed one of the identified tasks, but now required assistance to do so as a result of his VWF.
+Men at 2V on the scale would be expected to have difficulty with all tasks except do it yourself and decorating and at 3V would be expected to have difficulty with decorating.
+It was further assumed that the condition would not have deteriorated since cessation of exposure to vibration (Schedule 7.1, paragraphs 4.1, 4.2).
+A claimant did not have to show that his condition wholly disabled or prevented him from carrying out the relevant task.
+It was enough that he could no longer carry it out without assistance.
+The approach left to be determined when a claimant reached the relevant stages, whether he suffered from any other conditions which would have prevented him from continuing to carry out any tasks in any event (co morbidity), and, if so, what that condition was, when it developed and the extent to which it compromised his ability to carry out the relevant tasks expressed on a scale of nil, material, moderate, serious and complete (Schedule 7.1, paragraphs 3.7, 5.1).
+Factual evidence concerning a services claim was presented by a simple questionnaire completed by the claimant.
+Because it would be impracticable to investigate individual claims in any detail, the Scheme provided that broad assumptions will be made about the average assistance that would be required for the particular task by the individual at the relevant stage (Schedule 7.1, paragraph 6.7).
+Schedule 7 stated that practical and other considerations militate against other than a tariff based approach given the number of claims and the need for a quick, efficient and inexpensive approach to their settlement. (Schedule 7, paragraph 6.2) In addition, a claimants most recent helpers would complete questionnaires.
+A claimant would then be sent for a further medical examination (MAP 2) which was solely concerned to consider whether there were any other conditions which, of themselves, would have prevented the claimant from undertaking the task in question.
+A claimant was not usually contacted by IRISC concerning his claim, but helpers were.
+This normally consisted of a telephone interview, which might last 15 minutes, during which the helper would be asked whether he or she had assisted with the tasks claimed and, if so, when they started to do so.
+Even where the helper was out by a few years on dates, the information in the questionnaire would still be accepted.
+On receipt of the questionnaires, IRISC would consider each claim on its merits, adopting a pragmatic approach.
+If IRISC did not accept the claim entirely it had to set out in detail the reasons for rejecting the claim in whole or part.
+Compensation was calculated by application of a multiplier/multiplicand approach and an index linked tariff was set in respect of each task according to the particular staging.
+IRISC could reject a claim for services in whole or in part if a claimants work history after leaving the mining industry was such as to indicate that his ability to carry out the relevant tasks was not impaired.
+However, in order to be entitled to rebut the presumption that a man with a particular claimants stagings could not carry out the relevant tasks without assistance, IRISC had to discharge the burden of establishing that the work actually carried out by the claimant was such as to demonstrate that he could reasonably be expected to carry out all aspects of the task without assistance.
+Pending resolution of the services claim, a claimant was entitled to receive an interim payment in respect of his claim for general damages and handicap on the labour market.
+Mr Watkinss claim
+In February 1999 Mr Watkins instructed Hugh James Ford Simey Solicitors (the appellant) to act for him in relation to a claim under the Scheme.
+His claim was notified to the DTIs claims handlers on 10 February 1999.
+By November 1999 Mrs Barbara Kinsey, litigation solicitor within the appellant firm, had assumed responsibility for many VWF claims, including that of Mr Watkins, at the appellants office in Bargoed and, from 2001, Treharris.
+On 31 January 2000 Mr Watkins underwent an interview and examination performed in part by Dr Chadha, a general practitioner appointed under the Scheme, and in part by an unnamed laboratory technician, to assess whether he was suffering from VWF and, if so, how his condition should be categorised under the Stockholm Workshop Scale for its vascular and sensorineural components.
+This was referred to as a Medical Assessment Process 1 (MAP 1) examination.
+In a report dated 3 February 2000 Dr Chadha indicated that Mr Watkins suffered from VWF with stagings of 3V and 3Sn bilaterally (ie in both hands).
+Those stagings were sufficient for Mr Watkins to obtain general damages and to entitle him to a presumption in his favour that he satisfied the qualifying requirements for a services award.
+Mr Watkins did choose to seek a services award.
+He and his assistants completed the necessary questionnaires which were sent to the DTIs claims handlers on 23 March 2001.
+They initially sought to deny Mr Watkinss entire claim on the basis that he had not been exposed to excessive vibration while working for British Coal.
+The appellant challenged that decision and eventually the claims handlers were persuaded to accept Mr Watkinss claim under the Scheme.
+As a result of this delay, it was not until 12 February 2003 that the claims handlers wrote to the appellant, offering Mr Watkins the sum of 9,478 in full and final settlement of all [Mr Watkinss] claims arising out of his exposure to vibration during the course of his employment with the British Coal Corporation. 9,478 was the tariff award for general damages to which Mr Watkins would have been entitled under the Scheme on the basis of the stagings of 3V and 3Sn bilaterally.
+The offer made did not include any allowance for a services award.
+The appellant wrote to Mr Watkins on 18 February 2003, reporting the offer which had been received and advising him as to what would be involved should he wish to proceed with a special damages claim.
+On 23 February 2003 Mr Watkins spoke by telephone with Mrs Kinsey at the appellant and told her that he didnt want to proceed any further with the special damages claim as he had other conditions and had had various operations which in his view prevented him from carrying out certain tasks.
+He indicated that he was quite happy to continue with general damages only and would accept the offer.
+Mr Watkins completed a form of acceptance on 24 February 2003 and the appellant wrote to the claims handlers on 27 February 2003 accepting the offer in full and final settlement of Mr Watkinss VWF claim against British Coal.
+The professional negligence proceedings
+Nearly five years later, in January 2008, Mr Watkins, having seen a newspaper advertisement offering assistance to any ex miner who may have had his VWF claim settled at an undervalue, instructed fresh solicitors, who issued proceedings against the appellant on 11 August 2010.
+By the amended particulars of claim it is contended that as a result of the appellants negligence, Mr Watkins has lost the opportunity to bring a services claim under the Scheme or otherwise.
+That lost opportunity is quantified at 6,126.22 plus interest.
+On 22 October 2010, His Honour Judge Hawkesworth QC made an order in relation to a number of claims against solicitors arising out of the Scheme, directing that disputes about expert evidence and disclosure be dealt with at a hearing before him.
+The six test cases identified in the order did not include Mr Watkinss claim.
+Following a hearing, by order dated 3 May 2011 Judge Hawkesworth ordered that his directions should apply to all prospective and existing claims alleging negligence against solicitors in the context of the advice given by those solicitors in respect of claims for damages [under the Scheme].
+He directed that expert evidence should be obtained in the form of a report by a single joint expert.
+A schedule to the order set out a standard form letter of instruction to such a single joint expert in terms approved by the judge.
+That standard form was adopted in the letter dated 21 January 2013 by which the parties to the present proceedings jointly instructed Mr Tennant, a consultant vascular surgeon.
+It stated: It is an issue in the proceedings whether Mr Watkins would, if properly advised, in fact have brought a Services claim at all.
+Whether Mr Watkins was, as a result of HAVS, in fact disabled from carrying out (in whole or in part) the tasks he alleges would have formed the basis of his Services claim is relevant to that issue.
+Accordingly, we wish jointly to instruct you to carry out a medical examination of Mr Watkins and, on the basis of that examination and your consideration of the documents referred to below and attached to this letter, to prepare a report stating your opinion as to whether Mr Watkins is and was at any time from the date of onset of HAVS symptoms: (1) Disabled by HAVS as a matter of fact and, to the extent that he was, unable to carry out (in whole or in part), without assistance, the tasks which he alleges would have formed the basis of his Services Claim; and (2) Suffering from any co morbid medical condition which would, in any event, have affected his ability to carry out those tasks without assistance.
+In relation to co morbidity, could you please express your opinion as to whether any such co morbidity was at any time since the date of onset of HAVS symptoms: nil; minor; moderate; serious; complete (ie would have prevented the carrying out of the task in any event) If, in the course of your medical examination, you conclude that Mr Watkins does not, in fact, suffer from HAVS, you should report that opinion in your Report.
+The letter made clear that the expert was not to apply in Mr Watkinss favour the presumption under the Scheme that he could no longer carry out the relevant tasks without assistance by reason of his VWF staging.
+Mr Tennant examined Mr Watkins and, in a report dated 17 May 2013, he stated: Mr Watkins gives a good description of vasospasm and is graded 1V in this report as the white discolouration reaches the distal interphalangeal joint.
+The only abnormality on testing was of a mild lack of dexterity.
+As there is no other sensory loss in a warm environment, in my opinion this amounts only to HAVS grade Sn1.
+There is certainly no justification for Sn3 at this examination, and to reach Sn2 would require evidence of reduced sensory perception, which I could not demonstrate.
+Grading of 1V, 1Sn would not be expected to produce any disability in the domains tested below.
+In response to further questions from Mr Watkinss solicitors, Mr Tennant confirmed on 23 June 2013 that Mr Watkins met the criteria for the diagnosis of HAVS.
+He further stated that it was apparent at interview that the client had devolved certain tasks to others in the long term.
+Mr Watkins died in January 2014 at the age of 72.
+His daughter, Mrs Jean Edwards, was appointed to continue the claim on behalf of Mr Watkinss estate.
+The trial of the claim against the appellant took place in the County Court at Leeds before Mr Recorder Miller in March 2016.
+The parties had permission to rely on Mr Tennants written evidence at trial but an application by the appellant, made in advance of trial, for permission to call Mr Tennant was refused and that order was not appealed.
+The statements of Mr Watkins were admitted as hearsay evidence.
+In a reserved judgment, handed down on 16 May 2016, the judge held that the claim in negligence was not time barred, that the advice contained in the appellants letter dated 18 February 2003 had been negligent and that if Mr Watkins had received appropriate advice, he would probably have decided to reject the settlement offer of 9,478 and would have continued to pursue his services claim.
+However, the judge also held that Mr Watkins had suffered no loss and accordingly he dismissed the claim against the appellant.
+He observed: If, as here, expert or other evidence which post dates the settlement or other disposal of the original claim, establishes beyond any (or any but negligible) doubt that the claim could and would have been resolved only in one specific way had that evidence been available to the parties and the tribunal at the time, then the Court in the professional negligence action has the full facts adverted to by Laws LJ in Whitehead [v Searle [2009] 1 WLR 549, para 20] and should find accordingly, thereby avoiding an uncovenanted windfall or correcting injustice to a claimant whose case has turned out to be undoubtedly stronger than had been previously assumed.
+In the case of Mr Watkins, I can and should find that his chose in action has been shown to have had no value given the damages actually paid to him; another way of putting it is that, as I have found on the full facts, his services claim had no chance of success, for the same reason: it is beyond a peradventure that faced with Mr Tennants clinical findings and conclusions any award would have fallen short of 9,478.
+It is fanciful to assume otherwise.
+The judge took that view because on the consultants findings Mr Watkins would only have been offered 1,790 for general damages and a services claim would not have been possible.
+On appeal to the Court of Appeal (Underhill, Irwin and Singh LJJ) the appeal was allowed: [2018] PNLR 30.
+The Court of Appeal, influenced by the decision of the Court of Appeal in Perry v Raleys Solicitors [2017] PNLR 27 (more recently reversed by this Court [2019] 2 WLR 636) held that the trial judge had been wrong to conduct a trial within a trial to determine the value of Mr Watkinss claim against the DTI and to determine the severity of his VWF.
+It further held that the judge had been wrong to determine these matters on the basis of the evidence of Mr Tennant, since that evidence would not have been available at the time of Mr Watkinss notional services claim under the Scheme.
+Irwin LJ observed (at para 70) that it would be particularly inappropriate to lose sight of what would have been the outcome under the Scheme by reference to after coming evidence which would not have been brought into being at the time.
+The Court of Appeal further acknowledged exceptions in the case of fraud and in cases, such as Whitehead v Searle [2009] 1 WLR 549, where the consequences of a supervening event were of such a significant or serious scale that public policy required a departure from normal principles in order to do justice between the parties.
+In its view, such circumstances did not exist in the present case.
+The appellant now appeals to this court with the permission of this court.
+Although the appellant sought to appeal on 14 (partly overlapping) grounds, permission was limited to the sole question of whether the prospects of success of the claim are to be judged as at the date when the claim was lost or at the date when damages are awarded and it directed that the parties consider the relevance of the principle in Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co [1903] AC 426, namely that where the court assessing damages has knowledge of what has actually happened it should not speculate about what might have happened but base itself on what is now known to have happened. (See McGregor on Damages, 20th ed (2018), para 10 118.).
+Although this was the reason why permission to appeal was granted, the Court has concluded, in the light of the wide ranging arguments presented to us, that the Bwllfa principle is not relevant in the particular circumstances of this case.
+On behalf of the appellant, Mr Michael Pooles QC submits that the trial judge was right to rely on the evidence of Mr Tennant for four reasons. (1) In the circumstances of this case, the question whether Mr Watkins had suffered loss should be determined as at the date of the trial of the claim against the appellant, applying the Bwllfa principle. (2) In a professional negligence claim arising from personal injury litigation, the issue of loss should be determined as at the date of the trial of the professional negligence proceedings as it would have been in personal injury litigation (Golden Strait Corpn v Nippon Yusen Kubishika Kaisha (The Golden Victory) [2007] 2 AC 353, per Lord Bingham of Cornhill at para 13). (3) Even if the issue of loss should be determined at an earlier date, the Court should in making that determination take account of all of the evidence available at the trial of the professional negligence proceedings, following the decisions in Charles v Hugh James Jones & Jenkins [2000] 1 WLR 1278, Dudarec v Andrews [2006] 1 WLR 3002 and Whitehead v Searle, as this would enable the court to make a more accurate assessment of what the original personal injury claim was actually worth. (4) That evidence was needed in the present case to enable the issue of loss to be determined with all the adversarial rigour of a trial as required by the Supreme Court in Perry v Raleys Solicitors: [2019] 2 WLR 636, para 19.
+On behalf of the respondent, Mr Richard Copnall submits that the court should assess the prospects of success as at the date when the claim was lost, on the facts as they were and the evidence available at that time, subject to the following established exceptions. (1) Evidence that would have been available, in the absence of negligence, at the time the claim was lost will be admissible (Charles; Dudarec v Andrews [2006] 1 WLR 3002). (2) Evidence of the original parties attitude to settlement at the time that the claim was lost will be admissible (Somatra Ltd v Sinclair Roche and Temperley [2003] 2 Lloyds Rep 855). (3) Evidence of dishonesty or misconduct will be admissible (Perry; Green v Collyer Bristow [1999] Lloyds Law Rep PN 798). (4) Evidence of any accomplished fact within the meaning of the Bwllfa principle will be admissible.
+Discussion
+We are concerned with a claim in the tort of negligence.
+Although the claim for breach of contract was time barred, the judge held that, by virtue of section 14A of the Limitation Act 1980, as inserted by section 1 of the Latent Damage Act 1986 (Special time limit for negligence actions where facts relevant to cause of action are not known at date of accrual), the claim in negligence was not.
+In order to succeed in negligence against Mr Watkins former solicitors his estate had to establish a negligent breach of duty, causation and loss.
+A negligent breach of duty was found by the judge, on the basis that the appellants letter of 18 February 2003 was misleading and deficient in a number of respects and those features were not corrected in the subsequent conversation between Mr Watkins and Mrs Kinsey on 23 February 2003.
+There has been no appeal against that conclusion.
+In addition, the judge made a finding that, had Mr Watkins received non negligent advice, he would have pursued an honest services claim.
+That claim had already been notified and supporting statements provided.
+The judge considered that, had Mr Watkins been more fully and accurately informed as to where he stood and how the scheme operated, he would probably have instructed Mrs Kinsey to let the services claim and a MAP 2 medical examination proceed.
+The judge expressly rejected the submission on behalf of the appellants that, in reality, Mr Watkins had realised that his evidence in support of the services claim was grossly exaggerated or invented and, as a result, he had discontinued it for fear of getting into trouble or losing out financially further down the line.
+There has been no appeal against that conclusion.
+Accordingly, the issue considered by the Supreme Court in Perry v Raleys Solicitors does not arise in this case and, in my view, that decision has no direct bearing on the issues which we have to decide.
+For the claim by Mr Watkinss estate to succeed, however, it is also necessary to prove loss.
+There is a legal burden on the estate to prove that in losing the opportunity to pursue the claim Mr Watkins has lost something of value ie that his claim had a real and substantial rather than merely a negligible prospect of success.
+It is only if the estate can establish that Mr Watkinss chances of success in pursuing his service claim were more than negligible that it is appropriate to go on to evaluate those chances on a loss of chance basis by making a realistic assessment of what would have happened had the original claim been pursued (Mount v Barker Austin [1998] PNLR 493 per Simon Brown LJ at pp 510D to 511C).
+In the view of Mr Recorder Miller, the present claim failed at the first hurdle.
+On the basis of the evidence of Mr Tennant the judge considered that Mr Watkinss chose in action had no value given the damages actually paid to him.
+It was clear, in his view, that any award would have fallen short of the 9,478 which Mr Watkins had already received under the settlement.
+Against this background, the argument before this court has focussed on the issue of the admissibility in a professional negligence action of subsequently acquired evidence relating to the value of the original claim, an issue on which we have heard elaborate submissions.
+However, it is not necessary to express a concluded view in relation to these matters because the evidence contained in Mr Tennants report was not relevant to any issue before the court in the professional negligence proceedings.
+As a result, the authorities relied on by the appellant are not relevant in the particular circumstances of this case.
+It is important not to lose sight of the fact that Mr Watkinss original claim was a claim within the Scheme and not one made in the course of conventional civil litigation.
+It is necessary to consider whether Mr Watkinss original claim, which was accepted by the judge to be an honest claim, was of more than negligible value within the context of the Scheme.
+When the evidence of Mr Tennant is considered in this light, it is not the knock out blow which the appellant suggests.
+The Scheme has been described by Irwin LJ in the Court of Appeal and by counsel before us as a rough and ready scheme.
+This is a fair description.
+It was intended to provide an efficient and economic system for dealing with a huge number of claims in a way that was broadly fair.
+No doubt, it was considered that the decision not to require a detailed medical assessment of the level of disability of every claimant for a services award was justified by the savings in cost.
+A deliberate decision was taken to deal with services claims by reference to presumptions derived from the diagnosis and staging found at MAP 1, as opposed to requiring a precise assessment of the underlying disability.
+Medical assessment in the MAP 2 procedure was to be limited to the issue of co morbidity.
+More specifically, there was no provision within the Scheme whereby the DTI could appeal against a general award, nor did the Scheme contemplate reopening or reassessing the diagnosis or staging of the condition or the entitlement to a general award established at MAP 1.
+Recoverability under the Scheme, therefore, did not depend on entitlement at common law nor did it correspond with what might have been the outcome in conventional civil proceedings.
+In this case Mr Watkins lost the value of his claim under the Scheme as it would have been administered in accordance with its terms.
+In this regard it is instructive to consider why Judge Hawkesworth QC made the order in the professional negligence proceedings for further medical reports.
+In his judgment of 3 May 2011, he explained that it was common ground that the claims were for the lost chance to bring a claim under the MAP 2 procedure.
+On behalf of the claimants it was contended that the scope of the medical evidence should be a replication of the MAP 2 procedure which was limited to the issue of comorbidity, while on behalf of the defendants it was contended, initially at least, that there should be a more comprehensive medical examination by a consultant specialist which could revisit the original diagnosis of VWF as well as address the issue of comorbidity.
+For the claimants it was submitted that because the MAP 2 examination did not revisit or reopen the original diagnosis it would not be appropriate for the medical expert in the professional negligence proceedings to address them.
+During the hearing, however, it became clear that counsel for the defendants were not contending for a medical examination in order to revisit the diagnosis and staging of the VWF condition, but in order to evaluate the claimants case on causation ie in order to assess whether a claimants failure to pursue a services claim arose from negligent advice or from an inability to assert truthfully that he had lost the ability to perform those specified activities which would enable him to bring a claim for a services award.
+It was said that the extent of disability was relevant to that issue, while the medical examination in the MAP 1 procedure was predominantly directed at diagnosis and staging of the condition as opposed to the level of disability.
+Miss Foster [who appeared for four defendant firms of solicitors] did not seek to say that the fact of a MAP 1 diagnosis and its consequences for the subsequent progression to a services claim could be called into question.
+However, the defendants were entitled to investigate the implied averment that had the claimant been properly advised he would have made a services claim. (at para 7) The judge seems to have made the order for expert reports on that basis but expressly left open (at para 9) the question as to the extent to which any findings by an examining doctor could or could not be taken into account in valuing the loss of a chance to bring a services claim.
+The joint letter of instruction sent to Mr Tennant on 21 January 2015 (set out at para 13, above) reflected this reasoning.
+As a result, the instructions and the resulting medical examination and report departed significantly from those in a MAP 2 procedure.
+Most significantly, the expert was not to apply the presumption resulting from the diagnosis and staging at MAP 1 which applied under the Scheme.
+Mr Tennants report may have been relevant to the issue of causation in the claim by Mr Watkinss estate against his former solicitors.
+However, the judge decided that issue in favour of the estate, finding that if Mr Watkins had received non negligent advice he would have pursued an honest services claim.
+That conclusion has not been challenged on appeal.
+In my view, Mr Tennants report is not relevant to the issue of loss.
+We must assume that had Mr Watkins pursued a services claim the Scheme would have operated in accordance with its provisions.
+The conclusion of Dr Chadha that Mr Watkins was suffering at the level of 3V, 3Sn bilaterally had entitled him, under the tariffs applied within the Scheme, to an award of general damages of 9,478 and also created a rebuttable presumption that he did require assistance with the tasks prescribed under Schedule 7 of CHA.
+Mr Watkins would have had to undergo a second medical examination but that would have been limited to assessing co morbidity.
+There would have been no equivalent of Mr Tennants report, no reassessment of the diagnosis or staging found in the MAP 1 procedure and no reduction of the general award.
+Entitlement to a services award would have been decided in accordance with the procedure described at paras 4 8 above.
+The appellant now seeks to add to the counterfactual situation the effect of a further medical examination and report which would never have been commissioned.
+There is no justification for such a modification of the counterfactual situation and the judge erred in taking it into account when concluding that the lost claim was of no value.
+When Mr Tennant conducted his examination of Mr Watkins and prepared his report, he acted in accordance with his instructions in expressing his view as to whether and to what extent Mr Watkins was disabled by HAVS as a matter of fact and, to the extent he was, unable to carry out without assistance the tasks which formed the basis of his services claim.
+His opinion is set out at para 14 above.
+However, he then proceeded to set out his opinion on co morbidity in accordance with the Scheme by taking as his starting point the conclusions of Dr Chadha (3V, 3Sn) as in the MAP 1 report and grading disability for the purpose of a services claim on that basis.
+In doing so he provided an insight into the value of the claim which Mr Watkins lost.
+For each of the five activities relevant to Mr Watkinss case (car washing, car maintenance, gardening, DIY and decorating) his disability is assessed as complete.
+Mr Tennant states that on the basis of the MAP 1 report his HAVS would be expected to produce severe or complete disability in the tested domains.
+The only comorbidity to take into account is Mr Watkinss arthritic knees and this results in a comorbidity finding of moderate in all of the tested domains other than gardening where the finding is severe.
+In these circumstances I am unable to accept that the services claim had no chance of success and that the claim lost was of no value.
+At the heart of this case lies Mr Pooless assertion that Mr Tennants report shows that because of an error Mr Watkins had already been over compensated and that a professional negligence claim should reflect his true entitlement to just compensation and not what would have been an uncovenanted windfall.
+However, this overlooks the nature and operation of the Scheme.
+The payment of a services award to Mr Watkins would simply have been a consequence of the way in which the Scheme operated and was intended to operate.
+We are not concerned here with a claim in conventional civil proceedings but with a scheme possessing unusual features.
+The evidence in question, the report of Mr Tennant, is simply not relevant when constructing the counterfactual situation which would have arisen if Mr Watkinss solicitors had fulfilled their duty to him.
+I consider, therefore, that the Recorder erred in concluding that Mr Watkinss services claim could and would have been resolved only in one specific way had Mr Tennants report, or its equivalent, been available to IRISC and in concluding that the claim had been shown to have no value given the award already paid.
+On the contrary, Mr Watkins had lost a claim under the Scheme of some value and the Recorder should have proceeded to assess its value on a loss of opportunity basis.
+I would therefore dismiss the appeal and remit the matter for assessment of the value of the loss of the opportunity to pursue the services claim.
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+The appellant was born in Rwanda.
+He came to the United Kingdom in August 2000 and sought refugee status because of what he claimed was a well founded fear of persecution if he returned to his native land.
+His claim was accepted on 26 October 2000 on the basis that he was a member of a particular social group (Hutu).
+He was recognised as a refugee pursuant to the 1951 Refugee Convention and granted indefinite leave to remain.
+Since he arrived in the United Kingdom DN has been convicted of a number of offences.
+He has also been cautioned twice.
+The most significant of his convictions occurred on 22 January 2007 when he pleaded guilty to assisting the unlawful entry of a non EEA national to the United Kingdom contrary to section 25 of the Immigration Act 1971.
+The circumstances leading to the conviction were these: DN and his sister had travelled to the Netherlands where they met a niece.
+DN returned to the UK with his niece who used his sisters travel documents in an attempt to obtain entry to this country.
+Although this was a serious offence, it was accepted by the trial judge that DN had had no financial motivation for the crime.
+At the same court before which he had pleaded guilty to the immigration offence, however, DN was convicted, again on his plea of guilty, of three offences of obtaining or attempting to obtain a pecuniary advantage by seeking or taking employment in anothers name.
+He was sentenced to 12 months imprisonment for the Immigration Act offence and two months consecutively for each of the three pecuniary advantage offences making a total sentence of 18 months imprisonment.
+On 2 July 2007 DN completed the custodial element of his sentence.
+On the same date the Home Secretary decided to deport him subject to a final decision on the issue of his refugee status.
+This was followed by a decision on 3 July that DN should be deported pursuant to article 33(2) of the Refugee Convention which allows the expulsion of refugees whom there are reasonable grounds for regarding as a danger to the security of the country.
+It was said that DN had been convicted of a particularly serious crime and that he constituted a danger to the community.
+The decision was based on section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002.
+He was notified of the decision to deport him, and detained on foot of that decision on 2 July 2007, pursuant to paragraph 2(2) of Schedule 3 to the Immigration Act 1971, which provides that where notice has been given to a person of a decision to make a deportation order against him, he may be detained under the authority of the Secretary of State pending the making of the deportation order.
+Pursuant to powers conferred by section 72(4)(a) of the 2002 Act, the Home
+Secretary had made the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004.
+This specified several offences which were said to be particularly serious crimes.
+Assisting unlawful immigration to a member state contrary to section 25 of the 1971 Act was included among them.
+On that basis, the appellants conviction for the immigration offence was deemed to warrant his deportation.
+Section 72(4)(a) also provided that a person convicted of an offence specified in the 2004 Order was rebuttably presumed to have been guilty of a particularly serious crime and constituted a danger to the community.
+DN appealed the Home Secretarys decision.
+His appeal was heard by the Asylum and Immigration Tribunal (AIT) on 22 August 2007.
+On 29 August the tribunal dismissed the appeal.
+It found that the appellant constituted a danger to the community of the United Kingdom; that his attempt to circumvent the immigration law in itself amounted to a danger to the community; that he could now be expelled pursuant to article 33(2) of the Refugee Convention; and that he had failed to rebut the presumption created by the 2004 Order that a person convicted of an offence specified by the Order was deemed to have been convicted of a particularly serious crime and to constitute a danger to the community of the United Kingdom.
+DN sought reconsideration of the decision.
+On 18 September 2007 that was refused.
+An application for a statutory review by the High Court of the AITs decision under section 103A of the 2002 Act was dismissed on 7 December 2007.
+On 31 January 2008 the Secretary of State signed the deportation order and made an order for DNs detention pending deportation.
+That order was made pursuant to paragraph 2(3) of Schedule 3 to the 1971 Act which, although subsequently amended, at the time provided that Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise). (Emphasis added)
+Before the deportation order was signed, no suggestion had been made on DNs behalf that the 2004 Order was unlawful.
+After it was made, however, solicitors, who had replaced those who originally acted for DN, wrote to the Secretary of State making that precise case.
+On that account the Secretary of State was invited to revoke the deportation order.
+It was also claimed that DNs detention since 2 July 2007 was unlawful.
+On 29 February 2008 the appellant was released on bail by order of an immigration judge.
+By that time, he had spent 242 days in immigration detention.
+The proceedings
+On 20 March 2008 DN sought judicial review.
+He claimed that the deportation order should be quashed and applied for a declaration that the 2004 Order was ultra vires the 2002 Act.
+He also claimed damages and declaratory relief in respect of what he said was his unlawful detention.
+In two other cases appeals were made from decisions of the AIT in which the vires of the 2004 Order was challenged.
+These materialised into the decision of the Court of Appeal in EN (Serbia) v Secretary of State for the Home Department; KC (South Africa) v Secretary of State for the Home Department [2010] QB 633.
+Although permission to apply for judicial review had initially been denied the appellant, this was granted by Charles J on 28 November 2008 but stayed pending the decision in EN.
+That decision was duly delivered on 26 June 2009 and the Court of Appeal held that the 2004 Order was ultra vires the enabling power and was therefore unlawful.
+On 15 March 2010 the Home Secretary wrote to DN informing him that article 33(2) of the Refugee Convention was no longer relied on as a basis for his deportation, but instead cited a material change of circumstances in Rwanda sufficient to trigger article 1(C)(5) of the Convention (the cessation clause) which, in material part, provides: This Convention shall cease to apply to any person falling under the terms of section A if: (5) He can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality .
+On 15 and 16 May 2012, the Court of Appeal heard an appeal in the case of R (Draga) v Secretary of State for the Home Department.
+DNs application for judicial review was stayed pending the decision in Draga.
+Judgment was given on 21 June 2012 ([2012] EWCA Civ 842).
+At issue in that case was whether a distinction could be drawn between, on the one hand, a decision to make a deportation order and the making of the order, and, on the other, the decision to detain.
+It was argued that a flaw in the decision to make a deportation order/the making of the order did not impact upon the lawfulness of the decision to detain.
+That argument was, in essence, accepted by the Court of Appeal.
+Sullivan LJ (who delivered the leading judgment) considered the decision of this court in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245.
+At paras 65 and 66 of his judgment in that case, Lord Dyson had said: 65.
+All that a claimant has to prove in order to establish false imprisonment is that he was directly and intentionally imprisoned by the defendant, whereupon the burden shifts to the defendant to show that there was lawful justification for doing so.
+As Lord Bridge of Harwich said in R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58, 162C D: The tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it. 66.
+The causation test shifts the focus of the tort on to the question of how the defendant would have acted on the hypothesis of a lawful self direction, rather than on the claimants right not in fact to be unlawfully detained.
+There is no warrant for this.
+A purported lawful authority to detain may be impugned either because the defendant acted in excess of jurisdiction (in the narrow sense of jurisdiction) or because such jurisdiction was wrongly exercised.
+Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 established that both species of error render an executive act ultra vires, unlawful and a nullity.
+In the present context, there is in principle no difference between (i) a detention which is unlawful because there was no statutory power to detain and (ii) a detention which is unlawful because the decision to detain, although authorised by statute, was made in breach of a rule of public law.
+For example, if the decision to detain is unreasonable in the Wednesbury sense, it is unlawful and a nullity.
+The importance of Anisminic is that it established that there was a single category of errors of law, all of which rendered a decision ultra vires: see Boddington v British Transport Police [1999] 2 AC 143, 158D E.
+At para 88 of Lord Dysons judgment in Lumba a significant passage appears: To summarise, therefore, in cases such as these, all that the claimant has to do is to prove that he was detained.
+The Secretary of State must prove that the detention was justified in law.
+She cannot do this by showing that, although the decision to detain was tainted by public law error a decision to detain free from error could and would have been made.
+Having reflected on Lumba, Sullivan LJ said this at paras 57 and 58 of his judgment: 57.
+Applying the approach in Lord Dyson JSCs judgment in Lumba to the present case, both the deeming decision under section 3(5)(a) and the decision to make a deportation order under section 5(1), although authorised by statute, were made in breach of a rule of public law.
+The sole basis for both decisions was the unlawful 2004 Order.
+This error was sufficient to render those decisions unlawful, but did it bear upon, and was it relevant to, the decision to detain under paragraph 2(2) of Schedule 3? 58.
+I have not found this an easy question to answer.
+As a matter of first impression, the answer to the question is obvious: the unlawful decisions under sections 3(5)(a) and 5(1) did bear upon and were relevant to the decision to detain: without the prior decisions there could have been no decision to detain.
+But this approach does not pay sufficient regard to the statutory scheme as a whole.
+Making a deportation order is a two stage process.
+First the Secretary of State must serve notice of the decision to make a deportation order.
+The notice explains that there is a right of appeal under section 82(1) against the decision, and sets out of (sic) the grounds of appeal under section 84(1).
+Those grounds are not limited to the ground that removal in consequence of the decision would be unlawful under the Refugee Convention or the ECHR, they enable the person served with the notice to challenge the lawfulness of the notice on the basis of any breach of a rule of public law: that the decision is otherwise not in accordance with the law If there is an appeal the Secretary of State may not proceed to the second stage of the process the making of the deportation order until the appeal has been finally determined And at para 62 Sullivan LJ said: It would frustrate the operation of the statutory scheme if the Secretary of State was not able to rely upon the tribunals decision, dismissing an appeal, once time for applying for permission to appeal against the decision had expired, as a lawful basis for making a deportation order.
+On 27 November 2014 the High Court (Collins J) dismissed the appellants claim by consent, after both parties agreed that Draga was binding on him and that there was no need for a substantive hearing.
+The judge refused permission to appeal to the Court of Appeal.
+On 5 January 2015 DN applied to the Court of Appeal for permission to appeal and on 19 January 2016 Vos LJ granted the application.
+The appeal was heard on 18 January 2018 by the Court of Appeal (Arden, Longmore and Lewison LJJ).
+On 22 February 2018, the Court of Appeal dismissed the appeal, holding that it was not open to it to depart from the decision in Draga: [2019] QB 71.
+Although permission to appeal to this court was refused on the conventional basis that it is customarily a matter for the Supreme Court to decide whether permission should be given, Arden LJ observed (in para 42 of her judgment) that the issues in the case were worthy of further consideration.
+Longmore and Lewison LJJ agreed.
+Permission to appeal was granted by this court on 26 November 2018.
+Discussion
+The reference in para 57 of Sullivan LJs judgment in Draga to the question whether the unlawful decisions (founded on the ultra vires status of the 2004 Order) bore upon or were relevant to the decision to detain was prompted by a statement in para 68 of Lumba.
+There Lord Dyson had said that the breach of public law must bear on and be relevant to the decision to detain.
+But his observations there must be read in the light of his more important statements in paras 66 and 88 (cited above at paras 12 and 13).
+In the first of these passages Lord Dyson made it clear that there was no difference between a detention which is unlawful because there was no statutory power to detain and a detention which is unlawful because the decision to detain was made in breach of a rule of public law.
+Here, as in Lumba, there was no lawful statutory power to detain.
+The statutory power to which recourse had been had in deciding to make the deportation order, and in making it, was invalid.
+Detention in this instance was for the express purpose of facilitating the deportation.
+Without the existence of a deportation order, the occasion for (much less the validity of) detention would simply not arise.
+To divorce the detention from the deportation would be, in my view, artificial and unwarranted.
+The making of a deportation order is, as Sullivan LJ said, a two stage process, involving (a) notice of a decision to deport and (b) the making of the deportation order.
+Detention at both of these stages is entirely dependent on the decision to deport.
+Without that decision the question of detention could not arise, much less be legal.
+The detention was, therefore, inevitably, tainted (to borrow the expression from para 88 of Lord Dysons judgment) by public law error.
+The principle in Lumba applies with full force and effect to the circumstances of this case.
+In this connection reference to the recent decision of this court in R (Hemmati) v Secretary of State for the Home Department [2019] UKSC 56; [2019] 3 WLR 1156 is pertinent.
+In his judgment in that case Lord Kitchin discussed the Lumba decision extensively see, in particular, paras 49 and 50.
+I agree entirely with what Lord Kitchin had to say about the Lumba decision and R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23; [2011] 1 WLR 1299.
+As Lord Carnwath has pointed out (in paras 37 et seq of his judgment) that principle can be displaced by a specific rule of law.
+For the reasons that he gives in para 38 there is no such specific rule in the present case.
+The existence of a right of appeal does not constitute such a rule.
+The respondent argued that the independent judicial decision made in statutory appeals (per section 82 of the 2002 Act) was a step removing the legal error in question.
+It had, the respondent said, the equivalent effect of a break in the chain of causation, so that the decision to detain became independent of the decision to deport.
+I do not accept that argument.
+The notice of a decision to deport/deportation order is a prerequisite to detention under paragraph 2(2)/2(3).
+The rubric chain of causation is inapposite in this context.
+Where the deportation order is invalid, the unlawfulness of a paragraph 2(2)/2(3) detention which is founded upon it is inevitable.
+This is not an instance of a series of successive steps, each having, potentially, an independent existence, capable of surviving a break in the chain.
+To the contrary, the lawfulness of the detention is always referable back to the legality of the decision to deport.
+If that is successfully challenged, the edifice on which the detention is founded crumbles.
+The need for finality in litigation likewise does not warrant displacement of the Lumba principle.
+As Lord Carnwath says (para 38 of his judgment), finality and legal certainty are desirable objectives.
+But they cannot extinguish a clear legal right.
+In this case DN was detained on foot of an intended, and then actual, deportation order which proved to be unlawful.
+His detention was uniquely linked to that deportation order.
+The unlawfulness of that detention is inescapable.
+The desiderata of finality and certainty cannot impinge on that inevitable result.
+I agree with what Lord Carnwath has had to say (in paras 39 and 40) about
+the judgment of Pill LJ in Draga which gave somewhat different reasons from those of Sullivan LJ in dismissing the appeal.
+For the reasons given by Lord Carnwath, I consider that Draga was wrongly decided.
+I also agree with his discussion about the status of Ullah (Ullah v Secretary of State for the Home Department [1995] Imm AR 166).
+Indeed, I would go further and express doubt as to whether that case was correctly decided.
+In Ullah notice of intention to make a deportation order was served on the claimant, who was then detained under the authority of the Secretary of State for 17 days before being released.
+His release was prompted by the Secretary of State having concluded that the decision to deport was not in accordance with the law.
+This was because full consideration had not been given to applications made by the claimant before the deportation notice was served.
+Both Kennedy LJ and Millett LJ considered that paragraph 2(2) of Schedule 3 to the 1971 Act supplied the answer to Mr Ullahs claim for damages for false imprisonment.
+At the material time, it provided: Where notice has been given to a person in accordance with regulations under section 18 of this Act of a decision to make a deportation order against him he may be detained under the authority of the Secretary of State pending the making of the deportation order.
+Kennedy LJ said that all that is required by paragraph 2(2) of Schedule 3 in order to make detention legitimate is the giving of a notice of intention to make a deportation order.
+Millett LJ similarly said that [w]here the requirements of that paragraph are satisfied, the detention is lawful and no claim for false imprisonment can be maintained.
+Ullah was considered by the Court of Appeal in D v Home Office [2006] 1 WLR 1003.
+At para 120, Brooke LJ (who delivered the lead judgment) said that the court should not regard itself bound to follow Ullah and in that paragraph articulated a number of compelling reasons why this should be so.
+At para 121 he said: we are at liberty, unconstrained by binding authority, to interpret Schedule 2 to the 1971 Act without any preconceived notions.
+If we do so, there is nothing there to suggest that Parliament intended to confer immunity from suit on immigration officers who asked themselves the wrong questions, so that their decision to deprive an immigrant of his liberty was a nullity and consequently unlawful.
+In that case it had been alleged that immigration officers had made decisions in a manner which fell outside the jurisdiction conferred on them by the 1971 Act.
+The Court of Appeal held that, in the event that this was established, their decisions would be ultra vires and unlawful; that there was nothing peculiar about a private individual bringing a private law claim for damages against an executive official who had unlawfully infringed that individuals private rights, and there was nothing in Schedule 2 to the 1971 Act to suggest that Parliament had intended to confer immunity from suit on immigration officers who asked themselves the wrong questions in such circumstances so that their decision to deprive an immigrant of his liberty was a nullity and consequently unlawful; and that, accordingly, immigration officers had no immunity from claims for damages for false imprisonment.
+As with immigration officers, so with those who caused the appellant to be detained without lawful authority.
+What Lord Dyson said in Lumba about there being no difference between a detention which is unlawful because there was no statutory power to detain and a detention which is unlawful because the decision to detain was made in breach of a rule of public law is pertinent here (see paras 12 and 13 above).
+If, and inasmuch as, Ullah suggests that paragraph 2(2) of Schedule 3 provides a stand alone authority for lawful detention, no matter what has gone before, and irrespective of the fact that the decision to deport lacks a legal basis, I consider that the decision was wrong and should now be recognised as such.
+The giving of notice of the decision to make a deportation order, the making of the deportation order, and the detention on foot of it are essential steps in the same transaction.
+The detention depends for its legality on the lawfulness of the deportation itself.
+Absent a lawful basis for the making of a deportation order, it is not possible to breathe legal life into the decision to detain.
+Conclusion
+I would allow the appeal and confirm that the appellant is entitled to pursue a claim for damages for false imprisonment.
+The prospects of success in that claim are not, of course, a matter for this court, particularly because lines of possible defence to the claimants case, not pursued (or, at least, not pursued with any vigour), might be canvassed on the hearing of the claim.
+Lord Carnwath has discussed (in paras 44 to 63) the questions of res judicata and issue estoppel.
+He has said that, despite the parties reluctance to espouse these as possible ripostes to the appellants claim, he regarded them as potentially providing a straightforward answer to the questions raised by this case.
+So it may be.
+But this is an area which is distinctly one which is not free from controversy and it seems to me that it is also one where much further diligent thought may be needed.
+In any event, as Lord Carnwath says, [s]ince the Secretary of State has not hitherto relied on the principle of res judicata or issue estoppel, it would clearly be unfair to DN for the court to introduce it at this stage as a possible reason for determining the appeal against him (para 65).
+For that reason, as well as what I consider to be the considerable debate that may have to be had concerning whether these issues are relevant to a case such as the appellants, I have concluded that it would be unwise to express even a tentative view as to their possible relevance.
+LORD CARNWATH:
+Introduction
+I agree generally with Lord Kerrs judgment allowing the appeal on the arguments as presented to us.
+However, since we are disagreeing with a carefully reasoned decision of the Court of Appeal of R (Draga) v Secretary of State for the Home Department, given on 21 June 2012 ([2012] EWCA Civ 842) which has stood for some years, it may be helpful to add my own thoughts.
+I also take the opportunity to raise a topic res judicata or issue estoppel which was not discussed in argument, but which to my mind could provide a complete answer in similar cases in the future.
+I gratefully adopt Lord Kerrs statement of the background law and facts.
+In Draga the court held that there was no right of action for damages.
+In the
+leading judgment (paras 58 62) Sullivan LJ distinguished Lumba.
+Although he thought it obvious, as a matter of first impression, that the unlawful decisions relating to deportation did bear on the decision to detain, in the words of Lord Dyson in that case, it was necessary to take account of the different statutory scheme governing detention pending deportation.
+That provided for a two stage process, for an opportunity (under section 84) to challenge the deportation decision on a wide range of grounds including any breach of a rule of public law, and precluding the making of the deportation order until the appeal had been finally determined.
+It had been accepted by counsel for Mr Draga that in most cases the mere fact that an appeal had been allowed under section 82(1) would not mean that the deportation decision was unlawful in a way relevant to the decision to detain.
+Sullivan LJ continued: 60.
+There will, however, be some cases where appeals are allowed by the tribunal on the basis that there was a breach of a rule of public law in the process of making the decision to make the order, where the nature of the breach will have been such as to render the detention unlawful It must, however, be acknowledged that it is difficult to identify any principled basis for distinguishing between those public law errors which will render the decision to detain unlawful and those which will not.
+Errors of law are many and various and, as Lord Dyson said in para 66 of Lumba: The importance of Anisminic is that it established that there was a single category of errors of law, all of which rendered a decision ultra vires 61.
+The statutory scheme does not provide any mechanism for challenging the lawfulness of the kind of decision that was in issue in Lumba: an (unlawful) decision to detain where there had been a (lawful) decision to make a deportation order/the making of a (lawful) deportation order.
+The lawfulness of such a decision can be challenged only by way of judicial review.
+In sharp contrast, Parliament has established a comprehensive statutory scheme for determining the lawfulness of a decision by the Secretary of State to make a deportation order.
+The Secretary of State may not make the order until an appeal against the decision to make it has been finally determined There was, he thought, a very strong case for treating the tribunals decision under section 82(1) (subject to appeal to the Court of Appeal) as determinative of the issues as between the parties, in order to ensure finality in litigation and legal certainty, and so as not to frustrate the operation of the statutory scheme (paras 61 and 62).
+Pill LJ agreed that the detention was lawful because it was pursuant to the apparently lawful 2004 Order made by the Secretary of State following the procedure specified in section 72 of the 2002 Act, including placing the Order before Parliament I do not consider that the analysis is invalidated because the same actor, the Secretary of State, made both the 2004 Order and the deportation order.
+In making both orders, the Secretary of State was acting under statutory powers but the power to make the 2004 Order was distinct from the power that then arose to make a deportation order in reliance on it. (paras 81 and 82) He distinguished R v Governor of Brockhill Prison, Ex p Evans (No 2) [2001] 2 AC 19, in which the prison governor had sought to justify detention by reference to views expressed by the Divisional Court subsequently held to be erroneous: That is distinguishable from a deportation order based on the apparently lawful 2004 Order, lawfully made and also, in this case, upheld by the decision of the tribunal promulgated on 15 February 2007.
+Lord Hope, at p 35A to C in Evans, distinguished the case from one where the governor was acting within the four corners of an order which had been made by the court. (para 83)
+Permission to appeal from the Court of Appeal in Draga was refused by this court.
+The arguments in the present appeal
+Mr Knafler QC for DN submits that this case falls clearly within the principle established in Lumba.
+Whichever of the tests enunciated in the various judgments applies, the illegality of the deportation order bore directly on the decision to detain and rendered it ultra vires so as to preclude the Secretary of State from relying on it as justification for the detention.
+He submits that Draga was wrongly decided.
+For this purpose he submits that a distinction must be drawn between different categories of error which found an appeal against a deportation order.
+Where the dispute is not simply about the merits of the decision, but, as here, goes to its legal validity, the decision of the tribunal cannot be relied on in subsequent proceedings.
+By way of illustration, he contrasts a case where the tribunal disagrees with the Secretary of State on the application of article 8 of the European Convention on Human Rights (ECHR) in a particular case, with one where the Secretary of State has simply ignored the Convention altogether.
+The latter error, unlike the former, would render the earlier decision ultra vires, and so of no effect in subsequent proceedings.
+On the other side Mr Tam QC for the Secretary of State submits that Draga was correctly decided.
+He accepts that, on a strict application of the ultra vires doctrine, any public law error underlying the decision to detain could be said to render it a nullity and in theory could give rise to a claim for damages.
+However, he argues against a strict doctrinal approach, relying (inter alia) on the caution expressed by Lord Walker of Gestingthorpe in Lumba about translating judicial review principles too readily to other forms of private law action, such as false imprisonment (Lumba, para 193; see also R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22; [2019] 2 WLR 1219, paras 57 58).
+He submits that, taking any of the tests proposed in Lumba, the legal error must be one relating to the decision to detain itself.
+A decision made two or more steps back, in this case in the secondary legislation relating to the decision to deport, is too remote to satisfy the Lumba test.
+He suggests that this approach is consistent with the empirical approach taken by the courts to issues of invalidity, fashioning in each legal context a solution that is practical and pragmatic.
+Mr Tam further submits that the power to detain is dependent simply on the giving of the relevant notice as a matter of fact, regardless of any issue as to its legality (following Ullah v Secretary of State for the Home Department [1995] Imm AR 166).
+More generally he follows Sullivan LJs reliance on the specific statutory appeal process available in respect of the decision to deport, and on the importance of finality and legal certainty in this area of the law.
+Discussion
+I start from the position that the decision to detain in this case was directly dependent on the deportation decision.
+Without it there would have been no detention, nor any legal basis for detention.
+Even if the illegality was two steps back as Mr Tam submits, that step was the foundation of what followed.
+I agree therefore with Mr Knafler that DNs claim for damages comes clearly within the Lumba principle, unless excluded by some specific rule of law, statutory or otherwise.
+No such rule, in my view, emerges from the reasons of the Court of Appeal in Draga nor from the submissions for the Secretary of State before us.
+Sullivan LJ referred to the existence of a statutory right of appeal against deportation; the risk of frustrating that statutory scheme; the difficulty of distinguishing between different grounds of appeal; and, the need to ensure finality in litigation and legal certainty.
+I do not, with respect, see how the mere existence of a right of appeal can be read as taking away what would otherwise be a clear common law right, absent a specific statutory exclusion; nor why the existence of such a right can be said to frustrate or impede the working of the appeal process.
+Similarly, the wide scope of the statutory grounds of appeal under section 84, extending to issues of law as well as of policy or fact, does not, expressly or implicitly, detract from the clear conceptual distinction between the two in the context of a common law claim for false imprisonment.
+Similarly, finality in litigation and legal certainty are of course desirable objectives, but that in itself cannot convert them into legal rules in the context of a common law claim, except to the extent that they are reflected in recognised defences such as res judicata and issue estoppel (to which I will return below).
+In his concurring judgment in Draga Pill LJ made two additional points, not in terms adopted by Sullivan LJ nor by Mr Tam before us.
+With respect I find neither persuasive.
+First, his suggested grounds for distinguishing the Brockhill case are not supported by the full passage in the judgment of Lord Hope of Craighead to which he referred.
+Lord Hope said of the prison governor: His position would have been different if he had been able to show that he was acting throughout within the four corners of an order which had been made by the court for the applicants detention.
+The justification for the continued detention would then have been that he was doing what the court had ordered him to do. (R v Governor of Brockhill Prison, Ex p Evans (No 2) [2001] 2 AC 19, 35) Here there was no comparable order made by the court for the applicants detention, nor could the Secretary of State claim in that respect to be doing what any court or tribunal had ordered him to do.
+The decision of the tribunal, confirmed by the High Court, related only to deportation.
+Secondly, I note Pill LJs observation that Sullivan LJs analysis was not invalidated because the same actor (the Secretary of State) made both orders.
+This I take to be a reference to the so called Theory of the second actor, developed by Professor Forsyth among others to explain how an unlawful and void administrative act may none the less have legal effect: It is built on the perception that while unlawful administrative acts (the first acts) do not exist in law, they clearly exist in fact.
+Those unaware of their invalidity (the second actors) may take decisions and act on the assumption that these (first) acts are valid (Wade and Forsyth Administrative Law 11th ed, pp 251 252; see also footnote 145 for a list of judicial citations.) The best known example (though not at the time explained in those terms) is Percy v Hall [1997] QB 924, in which the Court of Appeal rejected a claim against police officers for wrongful arrest, where the byelaws on which they had relied were later found to have been invalid.
+Counsel for Mr Draga had sought to distinguish that case on the grounds that here there was only one decision maker throughout the process the Secretary of State (para 53).
+Whatever the precise scope of the second actor theory, that distinction seems to me in principle correct.
+Where the government, through the Secretary of State, was directly responsible for the order later found to be unlawful, it would be odd if it could rely on it to support the validity of later actions based on it.
+I note also that neither Lord Justice placed reliance on the decision of the Court of Appeal in Ullah.
+In my view they were right not to do so.
+Mr Tam mentions that case somewhat tentatively in support of his argument that it is enough that a notice of the decision to deport has been served in fact, regardless of its basis in law.
+In setting out the arguments before him (paras 44 45, 52) Sullivan LJ had referred in some detail to the reasoning of the Court of Appeal in Ullah as then relied on by counsel for the Secretary of State, but he noted also the reasons given by Brooke LJ in D v Home Office [2005] EWCA Civ 38; [2006] 1 WLR 1003, paras 120 121, for regarding the decision as no longer binding on the court in the light of subsequent case law, including the Brockhill case.
+I take, from the lack of any mention of Ullah in the discussion section of his judgment, that Sullivan LJ shared Brooke LJs view.
+If so, I would respectfully agree.
+More generally, Mr Tam relies on the case law as supporting what he calls an empirical approach, leading the court to fashion solutions that are practical and pragmatic, and he asks us to do the same.
+Whether or not that is a fair interpretation of the cases to which he refers, it is not in my view an acceptable approach in considering the available defences to a common law tort as well established and fundamental as that of false imprisonment.
+Indeed it contradicts the strict approach taken in that context by the House of Lords in the Brockhill case, where practicality and pragmatism might well have been thought to lend strong support to the prison governors position.
+Accordingly, on the arguments as presented to the court, I would hold that Draga was wrongly decided, and allow the present appeal.
+Finality, res judicata and issue estoppel
+During the course of argument I invited both parties to consider whether the Secretary of States position could have been supported by reference to the principle of res judicata or issue estoppel.
+Mr Tam did not take up the implicit invitation to adopt that as part of his case, but both parties produced helpful notes on the subject.
+The general theme of their submissions was that res judicata as such was of limited or at most doubtful application in the context of judicial review or public law.
+Since this aspect may arise in other similar cases which may come before the courts, I feel it desirable to explain why I find those doubts to be unjustified, and why, subject to further argument, I regard res judicata or issue estoppel as potentially providing a straightforward answer to the questions raised by this case.
+The authorities
+By way of introduction, I refer to the speech of Lord Bridge of Harwich, agreed by the other members of the House in Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273.
+This was a planning case.
+In 1982 the owner had appealed under section 88 of the Town and Country Planning Act 1971 against enforcement notices issued by the local planning authority alleging a material change of use of certain properties to use as a hotel or to use as a hostel.
+On appeal the inspector quashed the notices, finding that the use was correctly characterised as hotel use, not as hostel use, and that the hotel use had been carried on since 1960.
+In 1985 the council issued further enforcement notices alleging a material change of use of the properties to use as hostels.
+It was common ground that there had been no change of use since 1982.
+The Court of Appeal held that in these circumstances an issue estoppel arose which prevented the council on the appeals against the 1985 notices from contending that the use of either property was as a hostel, so contradicting the finding made by the 1982 inspector.
+The authoritys appeal to the House of Lords was dismissed.
+The sole reasoned speech was given by Lord Bridge, agreed by his colleagues.
+He made clear that for these purposes there was no distinction between public and private law: It is well established that a statutory body cannot by contract fetter its own freedom to perform its statutory duties or exercise its statutory powers and by parity of reasoning it has been held that no such fetter can arise from an estoppel by representation But the rationale which underlies the doctrine of res judicata is so different from that which underlies the doctrine of estoppel by representation that I do not think these authorities have any relevance for present purposes.
+The doctrine of res judicata rests on the twin principles which cannot be better expressed than in terms of the two Latin maxims interest reipublicae ut sit finis litium and nemo debet bis vexari pro una et eadem causa.
+These principles are of such fundamental importance that they cannot be confined in their application to litigation in the private law field.
+They certainly have their place in criminal law.
+In principle they must apply equally to adjudications in the field of public law.
+In relation to adjudications subject to a comprehensive self contained statutory code, the presumption, in my opinion, must be that where the statute has created a specific jurisdiction for the determination of any issue which establishes the existence of a legal right, the principle of res judicata applies to give finality to that determination unless an intention to exclude that principle can properly be inferred as a matter of construction of the relevant statutory provisions. (p 289) He distinguished between issues of law or fact, such as, in that case, whether there had been a material change of use, and issues of planning judgement which would arise under other grounds of appeal, in respect of which members of the public would have the right to attend any public inquiry and to be heard as objectors against the grant of planning permission.
+It is clear from the passage quoted above that the case did not rest on any peculiarity of planning law, but was based on a principle of fundamental importance in both private and public law, unless excluded by the particular statutory scheme.
+Nor is there anything to suggest that the principle is one sided, in public law any more than in private law.
+It may be invoked by either party, public or private.
+Indeed the two Latin maxims quoted by Lord Bridge make clear that it is a principle of general public concern, quite apart from the particular interests of the parties, public or private.
+It is true that the passage refers to an issue which establishes the existence of a legal right, but that phrase is applicable, not only to the legal right of a private owner in respect of his property, but equally to the legal right of the authority to bring enforcement proceedings in the public interest.
+Later in the speech he explained the difference in this context between two categories estoppel per rem judicatam and issue estoppel by reference to the classic description of Diplock LJ in Thoday v Thoday [1964] P 181.
+Of the latter Diplock LJ said: The second species, which I will call issue estoppel, is an extension of the same rule of public policy.
+There are many causes of action which can only be established by proving that two or more different conditions are fulfilled.
+Such causes of action involve as many separate issues between the parties as there are conditions to be fulfilled by the plaintiff in order to establish his cause of action; and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action.
+If in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was. (p 198)
+A useful illustration of the strength of the principle in a quasi public context, again at the highest level, is Watt v Ahsan [2007] UKHL 51; [2008] AC 696.
+A Labour Party councillor, of Pakistani origin, had brought a claim against the Labour Party in the employment tribunal for unlawful discrimination on racial grounds (contrary to section 12 of the Race Relations Act 1976) in failing to select him as an election candidate.
+A preliminary issue as to whether the Labour Party was a qualifying body for the purposes of section 12 was determined by the tribunal in his favour, and an appeal to the Employment Appeal Tribunal was dismissed.
+Before the final determination of the claim on the merits, it was held by the Court of Appeal in unrelated proceedings that a political party was not acting as a qualifying body when selecting candidates for public office.
+However, the tribunal regarded itself as bound by its original decision, and upheld the claim.
+Its decision was upheld by the House of Lords (disagreeing with the majority of the Court of Appeal).
+In his dissenting judgment in the Court of Appeal ([2005] EWCA Civ 990; [2005] ICR 1817), Sedley LJ explained that public and private law march together on jurisdictional issues: In neither field may a jurisdictional challenge to the decision of an inferior court or tribunal act as proxy for an appeal.
+This is fundamental to the functioning of the legal system. (para 29) He added: 33.
+These interlocking principles of precedent, appeal and finality cannot coexist with a separate doctrine, founded on a catholic meaning of jurisdiction, which undercuts them.
+In agreement with the Employment Appeal Tribunal, I consider that the effect of [counsels] argument is to erect such a doctrine.
+It is, in effect, an argument that an error of law on the part of a tribunal, although standing uncorrected by any superior court, invalidates all its subsequent proceedings not simply by exposing them to a successful appeal but by allowing them and their outcome to be disregarded or collaterally challenged.
+Such a proposition is serious enough when applied to an excess of a tribunals constitutive jurisdiction, but there it is generally irresistible because the courts cannot ordinarily equip a nullity with the force of law.
+To apply it to an excess of a tribunals adjudicative jurisdiction, by contrast, would be to supplant the entire edifice of finality and appeal by (to use a deliberate oxymoron) a retroactive system of precedent.
+Agreeing with that approach, in the leading speech in the House of Lords, Lord Hoffmann said: 30.
+Although it is well established that the parties cannot by agreement or conduct confer upon a tribunal a jurisdiction which it does not otherwise have, the question in this case is whether an actual decision by a tribunal that it has jurisdiction can estop the parties per rem judicatam from asserting the contrary.
+Neither Buxton LJ nor Rimer J cited any authority which decides that it cannot.
+The law on this point is not at all trite.
+Although estoppel in pais and estoppel per rem judicatam share the word estoppel, they share very little else.
+The former is based upon a policy of giving a limited effect to non contractual representations and promises while the latter is based upon the altogether different policy of avoiding relitigation of the same issues.
+It is easy to see why parties should not be able to agree to confer upon a tribunal a jurisdiction which Parliament has not given it.
+And if they cannot do this by contract, it would be illogical if they could do it by non contractual representations or promises.
+But when the tribunal has decided that it does have jurisdiction, the question of whether this decision is binding at a later stage of the same litigation, or in subsequent litigation, involves, as Sedley LJ explained in his dissenting judgment, quite different issues about fairness and economy in the administration of justice.
+Issue estoppel arises when a court of competent 31. jurisdiction has determined some question of fact or law, either in the course of the same litigation (for example, as a preliminary point) or in other litigation which raises the same point between the same parties: see Thoday v Thoday [1964] P 181, 198.
+The question is therefore whether the appeal tribunal was a court of competent jurisdiction to determine whether the Labour Party was a qualifying body within the meaning of section 12.
+Having answered that question in the affirmative, he noted the possibility of departing from the rule in special circumstances, but held that such circumstances did not exist on the facts of that case: 34.
+It is true that the severity of this rule is tempered by a discretion to allow the issue to be reopened in subsequent proceedings when there are special circumstances in which it would cause injustice not to do so: see Arnold v National Westminster Bank plc [1991] 2 AC 93.
+As Lord Keith of Kinkel said, at p 109, the purpose of the estoppel is to work justice between the parties In the instant case he thought it would be unjust not to apply the rule, against the background that the claimant had been involved in a lengthy and expensive hearing, during which the merits had been fully examined, and that it would be quite unfair for him to have to start again in the County Court.
+Although that passage might suggest that the court has a broad discretion to disapply the principle in the interests of justice, reference to the Arnold case itself shows the limits of that approach.
+That case related to the construction of a lease providing for rent reviews at five yearly intervals, such reviews to be carried out by reference to a hypothetical lease for the residue of the term.
+In the context of the first rent review, an issue arose as to whether the hypothetical lease was to be construed as itself containing a rent review clause.
+Walton J held, on an appeal from an arbitrator, that it was not to be so construed, and refused a certificate (under the Arbitration Act 1979) allowing an appeal against his decision.
+In subsequent cases between other parties, it was held by the Court of Appeal that his decision on this point was wrong.
+Before the date of the second five year review the tenants sought a declaration as to the basis of review, relying on the later decisions.
+The landlord applied to strike out the claim as barred by issue estoppel.
+It was held by the House of Lords, agreeing with the lower courts, that the action was not barred.
+In the leading speech in Arnold, Lord Keith affirmed the general principles governing res judicata and issue estoppel.
+He emphasised that there was no logical difference between a point which was previously raised and decided and one which might have been but was not (p 108); nor should there be a different result according to whether he decided not to take the point, thinking it hopeless, or argue it faintly without any real hope of success (p 109).
+However, he recognised the existence of an exception for special circumstances as he defined them: In my opinion your Lordships should affirm it to be the law that there may be an exception to issue estoppel in the special circumstance that there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, whether or not that point was specifically raised and decided, being material which could not by reasonable diligence have been adduced in those proceedings.
+One of the purposes of estoppel being to work justice between the parties, it is open to courts to recognise that in special circumstances inflexible application of it may have the opposite result (p 109)
+He went on to consider the extent to which the special circumstance could involve a decision on a point of law, posing the question thus: If a judge has made a mistake, perhaps a very egregious mistake, as is said of Walton Js judgment here, and a later judgment of a higher court overrules his decision in another case, do considerations of justice require that the party who suffered from the mistake should be shut out, when the same issue arises in later proceedings with a different subject matter, from reopening that issue? (p 109) He concluded that justice required an exception to the rule, against the background of Walton Js erroneous decision and refusal of a certificate allowing an appeal: I consider that anyone not possessed of a strictly legalistic turn of mind would think it most unjust that a tenant should be faced with a succession of rent reviews over a period of over 20 years all proceeding upon a construction of his lease which is highly unfavourable to him and is generally regarded as erroneous (p 110)
+It is important to note that there was no suggestion that the decision on the
+first rent review could be reopened.
+The potential unfairness arose when the same issue arose in later proceedings with a different subject matter.
+In the context of a lease with 20 years to run it was unfair that all future reviews should be governed by the erroneous decision on the first review.
+Finally, for completeness I should refer to the most recent discussion of the topic in this court: Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46; [2014] AC 160.
+For present purposes, it is sufficient to cite Lord Sumptions summary of the effect of Arnold: 22.
+Arnold is accordingly authority for the following propositions. (1) Cause of action estoppel is absolute in relation to all points which had to be and were decided in order to establish the existence or non existence of a cause of action. (2) Cause of action estoppel also bars the raising in subsequent proceedings of points essential to the existence or non existence of a cause of action which were not decided because they were not raised in the earlier proceedings, if they could with reasonable diligence and should in all the circumstances have been raised. (3) Except in special circumstances where this would cause injustice, issue estoppel bars the raising in subsequent proceedings of points which (i) were not raised in the earlier proceedings or (ii) were raised but unsuccessfully.
+If the relevant point was not raised, the bar will usually be absolute if it could with reasonable diligence and should in all the circumstances have been raised.
+Issue estoppel in the present case
+Applying the thinking of those authorities to the present case, and subject to any argument in a future case, the answer seems to me relatively clear.
+DNs private law claim for damages depended on the fact of detention and the absence of lawful justification.
+The former is not in doubt.
+But its lawfulness depended on the lawfulness of the deportation decision at the time it was made.
+That issue was conclusively determined by the decision of the tribunal in August 2007 and the decision of the High Court rejecting the application for review.
+There is no unfairness in treating that decision as precluding a claim for damages based on the alleged illegality of the original deportation decision, given that DN had had the opportunity to challenge it by reference to the invalidity of the 2004 Order, and failed to take it.
+In that respect Arnold is arguably a stronger case for an exception, since the tenant had taken the relevant point, but was precluded by the statute from challenging Walton Js decision.
+On the other hand, as in that case, it would be unfair to treat the decision as binding as respects the future conduct of the Secretary of State, once it had been shown to be erroneous by the higher courts.
+It could not be relied on to justify DNs continuing detention following the decision in EN (Serbia).
+It matters not whether that is treated as an application of the Arnold special circumstances exception, or of the Secretary of States duty in public law to keep the proposed deportation and detention under continuing review in the light of changing circumstances.
+As it happens DN had by then been released in any event.
+The parties submissions on res judicata
+Mr Knafler relied on cases which say, as he puts it, that res judicata and issue estoppel, as those terms are understood in private law, either have no application in judicial review or do not apply in the ordinary way.
+They include at Court of Appeal level: R v Secretary of State for the Environment, Ex p Hackney London Borough Council [1984] 1 WLR 592, R (Munjaz) v Mersey Care NHS Trust [2003] EWCA Civ 1036; [2004] QB 395, Ocampo v Secretary of State for the Home Department [2006] EWCA Civ 1276.
+He submits that Thrasyvoulou should be seen as a particular decision in a particular context with a specific and self contained statutory code.
+Alternatively he argues that Lord Bridge had focused on the statutory construction of the particular statutory code there in issue.
+His words could not be applied to the special protection afforded to personal liberty, which could be diluted by only the plainest statutory language, citing Khawaja v Secretary of State for Home Department [1984] AC 74, 122F per Lord Bridge.
+He also referred to a case in which Thrasyvoulou was cited, but an exception made.
+This was another planning case, this time at High Court level: R (East Hertfordshire District Council) v First Secretary of State [2007] EWHC 834 (Admin).
+On appeal against an enforcement notice alleging erection of a building without complying with the approved plans, the inspector had felt bound to allow the appeal and quash the notice because of the inadequacy of the plans with which he had been supplied, but he purported to do so without prejudice to the service of a further enforcement notice by the council if they thought it expedient to do so.
+In response to a further enforcement notice, the owner pleaded issue estoppel.
+Sullivan J accepted that Lord Bridges statement of principle in Thrasyvoulou remained authoritative, and unaffected by Lord Hoffmanns comments on the limited role of estoppel in modern public law in R (Reprotech) v East Sussex County Council [2002] UKHL 8; [2003] 1 WLR 348.
+However he considered that the circumstances of the instant case were so unusual as to amount to special circumstances justifying a departure from the estoppel rule.
+Mr Tam also referred to the cases in which doubts have been expressed as to the relevance of these principles in judicial review, the reasons for which appeared to stem from a number of factors, mentioned by different courts at different times: i) A lack of formal pleadings in judicial review proceedings; ii) There being no lis between the named parties in the judicial review proceedings that is being determined; iii) The lack of finality in the determination of the judicial review proceedings, as in many cases the relief leaves the redetermination of the underlying dispute to the original decision maker; iv) The discretionary nature of judicial review relief; v) The fact that, in judicial review, there is always a third party who is not present: the wider public or public interest, which should not be prejudiced if the court on the first occasion does not have all of the relevant material and argument before it when deciding the first judicial review application; vi) The interaction between the acceptance and rejection of separate grounds in judicial review proceedings and the result of the application, with the consequent limitation on the ability of a successful party in judicial review to appeal in relation to grounds on which it was unsuccessful.
+Mr Tam observed that most of these considerations apply with limited force to an immigration appeal, which does generally decide the issues between two parties and in which an identifiable lis can be formulated.
+He suggested that the most relevant judicial finding in this context would be the finding that DN had been convicted of a particularly serious crime, and discusses what he sees as the potential analytical difficulties in seeking to prevent DN from reopening this issue in subsequent proceedings.
+It is not necessary, or indeed appropriate, in the context of the present appeal to reach a concluded view on these points.
+I would however make the following observations: i) None of the judgments referred to by Mr Knafler went further than to express doubts on the question.
+More importantly in none of them was reference made to Thrasyvoulou, or in particular to Lord Bridges emphasis on the fundamental importance of the principle in both public and private law.
+I note, for example, Hale LJs statement in Munjaz (para 79) that issue estoppel is a doctrine appropriate to proceedings in private law and contrasting judicial review where there is always a third party who is not present: the wider public or public interest .
+It is very unlikely that she would have spoken in these terms if Lord Bridges words had been drawn to her attention. ii) Wade and Forsyth Administrative Law 11th ed (2014), p 201, in a section headed Res Judicata, states that res judicata plays a restricted role in administrative law, since it must yield to two fundamental principles of public law: that jurisdiction cannot be exceeded; and that statutory powers and duties cannot be fettered.
+However, it is accepted that within those limits the principle can extend to a wide variety of statutory tribunals, of which examples are given, including Thrasyvoulou.
+In the present context those principles do not pose an impediment; the tribunal had full jurisdiction to determine the legality of the detention, and there is no fetter on the Secretary of States exercise of powers in the future. iii) In any event, it is misleading to consider cases on judicial review generally.
+Although the present proceedings were brought by judicial review, the issues are the same as would have arisen in an ordinary common law action for damages for false imprisonment. iv) Mr Knaflers suggestion as to the narrow scope of Thrasyvoulou is impossible to reconcile with the clarity and generality of Lord Bridges statement of the principle, with the support of the whole House.
+There is no reason why it should not apply in the present context where the statutory immigration appeal process is equally specialised and self contained. v) Lord Bridges words in Khawaja about the special protection for personal liberty were directed to imprisonment without trial.
+The issue here is not about DNs personal liberty, but about the ordinary disciplines applicable to a common law claim for damages. vi) As regards the East Hertfordshire case, while I agree with Sullivan J that nothing said in Reprotech detracts from the authority of Lord Bridges statement of principle, the decision turned on its very special facts and gives no further assistance in the present context. vii) I agree with Mr Tam that the considerations which have led to doubts about the application of the principle in judicial review generally do not apply with the same force in the present context.
+However he seems to miss the point as to its potential application in this case.
+The relevant issue is not the seriousness of the crime, but the lawfulness of the decision to deport DN, and hence his detention, at the relevant time.
+That is the issue on which there was a definitive and final ruling in 2007, and which arises directly in his claim for false imprisonment.
+Conclusion
+Since the Secretary of State has not hitherto relied on the principle of res judicata or issue estoppel, it would clearly be unfair to DN for the court to introduce it at this stage as a possible reason for determining the appeal against him, whatever the position may be in future cases.
+On the arguments as presented to us, for the reasons set out earlier in this judgment, I would allow the appeal.
diff --git a/UK-Abs/test-data/judgement/uksc-2018-0154.txt b/UK-Abs/test-data/judgement/uksc-2018-0154.txt
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+This appeal concerns whether certain rules of the payment card schemes operated by Visa and Mastercard have the effect of restricting competition, in breach of article 101(1) of the Treaty on the Functioning of the European Union (TFEU), and equivalent national legislation.
+The rules in question provide for fees which are known as multilateral interchange fees or MIFs.
+Visa and Mastercard deny that there has been any restriction of competition, and contend that, in any event, the rules in question are exempt from the prohibition in article 101(1) because they satisfy the requirements of article 101(3) TFEU.
+The outline facts
+These are helpfully set out in the parties statement of facts and issues, as summarised below.
+The appellants, Visa and Mastercard, operate payment card schemes.
+They facilitate electronic funds transfers throughout the world, most commonly through branded credit and debit cards.
+The respondents, Asda Stores Ltd (Asda), Argos Ltd and others (Argos) and WM Morrison Supermarkets plc (Morrisons) (together AAM) and Sainsburys Supermarkets Ltd (Sainsburys), are retailers.
+The respondents accept payments from customers by way of debit and credit cards, including Visa and Mastercard branded cards.
+Visa and Mastercard each operate open four party payment card schemes (the Visa scheme and the Mastercard scheme), under which: Issuers (who are generally banks and other financial institutions) issue (i) debit and/or credit cards to their cardholder customers; and (ii) Acquirers (also generally banks or other financial institutions) provide payment services to merchants.
+These are the four parties to which the term open four party payment card scheme refers.
+In addition, the scheme operator (Visa or Mastercard in these cases) sets the rules of the scheme and allows institutions to join the scheme as issuers and/or acquirers.
+Visa and Mastercard do not themselves issue cards or sign up merchants to accept payment transactions.
+Instead, they accept as licensees all eligible financial institutions, these licensees being licensed to act, in specified territories, as issuers or acquirers or both.
+The operation of the Visa and Mastercard schemes can be represented by the following diagram: Issuers and acquirers join the Visa and/or Mastercard schemes, and In summary, the Visa and Mastercard schemes operate as follows: (i) agree to abide by the rules of the schemes. (ii) A cardholder contracts with an issuer, which agrees to provide the
+cardholder with a Visa or Mastercard debit or credit card, and agrees the
+terms on which they may use the card to buy goods or services from merchants. (iii) Those terms may include a fee payable by the cardholder to the issuer for the use of the card, the interest rate applicable to the provision of credit, and incentives or rewards payable by the issuer to the cardholder for holding or using the card (such as airmiles, cashback on transactions, or travel insurance). (iv) Merchants who wish to accept payment cards under the scheme contract with an acquirer, which agrees to provide services to the merchant enabling the acceptance of the cards, in consideration of a fee, known as the merchant service charge (the MSC).
+The acquirer receives payment from the issuer to settle a transaction entered into between cardholder and merchant, and passes the payment on to the merchant, less the MSC. (v) The MSC is negotiated between the acquirer and the merchant.
+Typically, it is set at a level that reflects the size and bargaining power of the merchant, the level of the acquirers costs (including scheme fees payable to Visa and Mastercard, and any interchange fees payable by the acquirer to issuers), and the acquirers margin. (vi) The scheme rules require that, whenever a cardholder uses a payment card to make a purchase from a merchant, the cardholders issuer must make a payment to the merchants acquirer to settle the transaction. (vii) The Visa and Mastercard scheme rules make provision for the terms on which issuers and acquirers (who are members of the scheme) are to deal with each other, in the absence of any different bilateral agreement made between them.
+These terms include issuers and acquirers settling transactions at the face value of the transaction (settlement at par or, as it is sometimes referred to, prohibition on ex post pricing) and also provide for the payment of an interchange fee on each transaction. (viii) Under both the Visa and Mastercard schemes, the default interchange fee (ie the MIF) which is payable by the acquirer to the issuer on each transaction is expressed either as a percentage of the value of the transaction, or as a flat figure in pence for each transaction.
+Different MIFs apply to different types of transaction (such as contactless payments, or payments made where the card is not present, including internet payments).
+Different MIFs also apply to transactions depending on whether the issuer and acquirer are based in the same state/region or different states/regions. (ix) Under the Visa and Mastercard schemes, issuers and acquirers are not required to contract on the basis of the MIF.
+Under the rules, they are free to enter into bilateral agreements with different terms.
+In practice, however, issuers and acquirers do contract on the basis of the MIF, as both trial judges below found. (a) Popplewell J stated in Asda Stores Ltd v Mastercard Inc [2017] EWHC 93 (Comm); [2017] 4 CMLR 32, para 9 in relation to the Mastercard scheme: Interchange fees can in theory be agreed bilaterally between issuers and acquirers.
+In practice this is not how the interchange fee is determined.
+Under the Scheme Rules (Rule 8.3), MasterCard sets the interchange fees which are to apply compulsorily in default of bilateral agreements.
+These are the multilateral interchange fees or MIFs.
+In practice there are no material bilateral agreements, and so the MIF always applies.
+This is not surprising: in a putative bilateral negotiation between an issuer and an acquirer the issuer has no incentive to accept less than the default MIF and the acquirer no incentive to offer more. (b) Phillips J stated in Sainsburys Supermarkets Ltd v Visa Europe Services LLC [2017] EWHC 3047 (Comm); [2018] 2 All ER 611, para 102 in relation to the Visa scheme: Although a MIF is, in theory, only a default provision applying in the absence of agreement, it was common ground that no bilateral agreements as to Interchange Fees are in fact made in the UK market.
+The reason for that result is also common ground and is obvious: Issuers have no need or incentive to agree a lower fee than the MIF and Acquirers have no need or incentive to agree to a higher fee.
+Both sides of the negotiation have the certainty that transactions will, in the absence of agreement, proceed on the basis of settlement at par plus an Interchange Fee set at the level of the MIF, so neither has a reason to depart from that position and certainly no incentive to incur the significant costs of entering negotiations with multiple counterparties in the (probably forlorn) hope of persuading one or more of them to agree a position which deviated from the default.
+As all Acquirers are in the same position, Merchants have no ability to negotiate with them as to the MIF element of the MSC, which is passed on in full.
+Witnesses called by each of the Merchants (12 in total) gave evidence that their respective Acquirers refused to negotiate the MIF element of their charge, treating it as a pass through cost set by the Scheme. (x) For most of the claim period, the MIF typically accounted for some 90% of the MSC.
+Acquirers pass on all of the MIF, and the scheme fee, to merchants through the MSC, with negotiation between acquirers and merchants in respect of the MSC being limited to the level of the acquirers margin.
+In the present proceedings, the MIFs at issue flow from the acquirer to the issuer.
+In other words, they involve a deduction from the payment that the issuer makes to the acquirer to settle the transaction.
+This is sometimes referred to as a positive MIF.
+However, this is not universally the case for schemes of this kind.
+In principle, interchange fees could flow in the opposite direction (ie be added to the payment made by the issuer to the acquirer).
+There are some four party payment card schemes which operate on that basis.
+This is sometimes referred to as a negative MIF.
+Other schemes operate on the basis that, in the absence of a bilateral agreement between the issuer and acquirer, the issuer must settle the transaction at par without the deduction of an interchange fee.
+It was common ground that a rule specifying the terms on which the transaction is to be settled between issuer and acquirer, at least in default of bilateral agreement, is necessary in order for a four party payment card scheme to operate.
+It was also common ground that a rule providing for positive MIFs is not necessary for the operation of a four party payment card scheme.
+Visa and Mastercard do not receive any part of the MIF or the acquiring bank fee.
+Their remuneration comes from scheme fees paid by issuers and acquirers.
+The lawfulness of those scheme fees is not the subject of these proceedings.
+Four party payment card schemes, such as the Visa and Mastercard schemes, operate in what is described by economists as a two sided market: (i) On one side of the market, issuers compete with each other for the business of customers to whom they will issue cards (the issuing market). (ii) On the other side of the market, acquirers compete with each other for the business of merchants to whom they seek to offer acquiring services (the acquiring market).
+These proceedings concern the effect of MIFs on competition in the acquiring market.
+Four party payment card schemes are not the only type of payment card scheme.
+There are also three party payment card schemes, including those operated in the UK by American Express and Diners Club.
+In the original form of that type of scheme, the scheme operator (ie American Express or Diners Club) acts as both acquirer and issuer and clears payments itself.
+One of the scheme rules that both the Visa and Mastercard schemes also operate is an Honour All Cards Rule (HACR).
+This requires a merchant, having agreed with an acquirer to accept Visa or Mastercard branded payment cards, to accept all such cards, regardless of which issuer issued the cards.
+Merchants can choose to accept only certain categories of card (for example, only debit cards), in which case they would be obliged to accept all Visa or Mastercard branded cards in that category.
+The lawfulness of the HACR is not in dispute in these proceedings.
+The legal framework
+Articles 101(1) and 101(3) TFEU provide as follows: Article 101(1) The following shall be prohibited as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between member states and which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in particular those which: limit or control production, markets, technical (a) directly or indirectly fix purchase or selling prices or any other trading conditions; (b) development, or investment; share markets or sources of supply; (c) (d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
+Article 101(3) The provisions of paragraph 1 may, however, be declared inapplicable in the case of: any agreement or category of agreements between undertakings, associations of undertakings, practices, any decision or category of decisions by any concerted practice or category of concerted which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while impose on allowing consumers a fair share of the resulting benefit, and which does not: (a) the undertakings concerned restrictions which are not indispensable to the attainment of these objectives; afford such undertakings the possibility of (b) eliminating competition in respect of a substantial part of the products in question.
+Section 2 of the Competition Act 1998 (the 1998 Act) makes the same provision as article 101(1) in relation to agreements which may affect trade within the UK, and which prevent, restrict or distort competition within the UK.
+Section 2 is the counterpart of article 101(1) and section 9 is the counterpart of article 101(3).
+Section 60 of the 1998 Act sets out principles to be applied when determining questions under sections 2 and 9.
+It provides as follows: Principles to be applied in determining questions (1) The purpose of this section is to ensure that so far as is possible (having regard to any relevant differences between the provisions concerned), questions arising under this Part in relation to competition within the United Kingdom are dealt with in a manner which is consistent with the treatment of corresponding questions arising in [EU] law in relation to competition within the [European Union]. (2) At any time when the court determines a question arising under this Part, it must act (so far as is compatible with the provisions of this Part and whether or not it would otherwise be required to do so) with a view to securing that there is no inconsistency between the principles applied, and decision reached, by (a) the court in determining that question; and (b) the principles laid down by the Treaty and the European Court, and any relevant decision of that Court, as applicable at that time in determining any corresponding question arising in [EU] law. (3) The court must, in addition, have regard to any relevant decision or statement of the Commission.
+The regulatory history
+Both the Visa and the Mastercard schemes have been subject to scrutiny by national and European competition authorities and regulators over many years, including in relation to MIFs.
+The Court of Appeal included a summary of the regulatory background in its judgment: [2018] EWCA Civ 1536; [2019] Bus LR 198; [2019] 1 All ER 903, paras 12 36.
+Of particular relevance to the appeal is the European Commission (the Commission) decision of 19 December 2007 that the Mastercard MIFs applicable within the European Economic Area (EEA MIFs) had, since 22 May 1992, been in breach of article 101(1), and Mastercard had not proved to the requisite standard that any of the first three article 101(3) exemption criteria were met: Decision C (2007) 6474 in Cases COMP/34.579 MasterCard, COMP/36.518 EuroCommerce, and COMP/38.580 Commercial Cards (the Mastercard Commission Decision).
+Mastercard applied to the Court of Justice of the European Union (the CJEU) for the annulment of the Mastercard Commission Decision.
+On 24 May 2012, the General Court gave judgment dismissing Mastercards application: MasterCard Inc v European Commission (Case T 111/08) [2012] 5 CMLR 5 (Mastercard GC).
+Mastercard appealed the General Courts decision to the Court of Justice.
+On 11 September 2014, the Court of Justice gave judgment dismissing Mastercards appeal: MasterCard Inc v European Commission (Case C 382/12 P) [2014] 5 CMLR 23 (Mastercard CJ).
+The trial proceedings
+The appeal relates to three sets of proceedings: the Mastercard Sainsburys proceedings, the AAM proceedings and the Visa Sainsburys proceedings.
+In the Mastercard Sainsburys proceedings, Sainsburys issued a claim against Mastercard in the Chancery Division for damages for infringement of article 101(1) TFEU and section 2 of the 1998 Act, in respect of the Mastercard MIFs applicable to domestic transactions in the United Kingdom (UK MIFs) for the period 19 December 2006 onwards.
+The claim was transferred to the Competition Appeal Tribunal (the CAT) on 1 December 2015.
+A liability and quantum trial was heard in the CAT over 23 days in January to March 2016.
+Judgment was given on 14 July 2016, with the CAT finding that, from 2006 to 2015, the Mastercard UK MIFs restricted competition by effect: Sainsburys Supermarkets Ltd v MasterCard Inc [2016] CAT 11; [2016] Comp AR 33.
+Damages of around 68.5m were awarded to Sainsburys (and subsequently adjusted to take into account the impact of corporation tax).
+In the AAM proceedings, Asda and Morrisons issued like claims for damages against Mastercard, ultimately limited to the Mastercard UK MIFs since 23 May 2006 and the Mastercard EEA MIFs since 23 May 2007.
+Argos also issued a claim limited to the Mastercard UK MIFs since 5 October 2006, the Mastercard EEA MIFs from 5 October 2007, and Mastercards Irish domestic MIFs (Irish MIFs) from 5 October 2006 to 5 January 2007 and from 20 January 2009 onwards.
+The parties various claims were combined.
+A liability trial took place before Popplewell J in the Commercial Court in June to July, and September to October 2016.
+On 30 January 2017, Popplewell J dismissed the claims: Asda Stores Ltd v MasterCard Inc [2017] EWHC 93 (Comm); [2017] 4 CMLR 32.
+He found that, subject to what came to be called for shorthand the death spiral argument, Mastercards UK and Irish MIFs restricted competition in the acquiring market contrary to article 101(1), but that the effect of that argument was that they did not infringe that provision.
+He also held that Mastercards UK, Irish and EEA MIFs were exempt under article 101(3) in any event.
+In the Visa Sainsburys proceedings, Sainsburys issued like claims for damages against Visa in respect of the Visa UK MIFs since 18 December 2007.
+Sainsburys claim was heard by Phillips J in the Commercial Court in a 39 day trial of liability issues in the period 14 November 2016 to 1 March 2017.
+On 30 November 2017, Phillips J dismissed Sainsburys claim against Visa: Sainsburys Supermarkets Ltd v Visa Europe Services LLC [2017] EWHC 3047 (Comm); [2018] 2 All ER 611.
+Phillips J found that the Visa UK MIFs did not restrict competition in the acquiring market and the claim was dismissed (the Visa restriction judgment).
+On 23 February 2018, Phillips J gave a further judgment, at the request of the parties, although it was strictly obiter.
+He found that if, contrary to his conclusion in the Visa restriction judgment, the Visa UK MIFs did restrict competition, they were not exempt, at any level, under article 101(3) because Visa had not established to the requisite standard that the Visa UK MIFs caused any benefits to consumers: Sainsburys Supermarkets Ltd v Visa Europe Services LLC [2018] EWHC 355 (Comm); [2018] 4 CMLR 24 (the Visa exemption judgment).
+The judgments below and their essential reasoning are summarised by the Court of Appeal at paras 37 57 of its judgment.
+The Court of Appeal decision
+The Court of Appeal directed that the appeals in the Mastercard Sainsburys proceedings, the AAM proceedings and the Visa Sainsburys proceedings be heard together.
+There was a ten day hearing between 16 and 27 April 2018.
+Judgment was handed down on 4 July 2018, overturning all four of the judgments given below.
+As regards Popplewell Js judgment in the AAM proceedings, the Court of Appeal endorsed his view that Mastercards default MIFs involved a distortion of competition contrary to article 101(1), but disapproved his reasoning on the death spiral argument, with the result that the Mastercard default MIFs were found to infringe article 101(1).
+The Court of Appeal also overruled the judge in relation to his conclusion on Mastercards claim of exemption under article 101(3).
+It held that Mastercard had not advanced evidence at trial which was capable of substantiating its claim for exemption under that provision; therefore, the judge should have concluded that Mastercards claim for exemption failed.
+Despite this ruling regarding article 101(3) in the AAM proceedings, the Court of Appeal remitted the issues arising under article 101(3) in all three sets of proceedings to the CAT, for reconsideration together on the basis of the existing evidence which had been adduced in all three sets of proceedings.
+On 29 November 2018 Visa and Mastercard were given permission to appeal against the Court of Appeal decision on all grounds.
+On 6 November 2019 AAM were given permission to cross appeal against the order for remittal made by the Court of Appeal.
+The issues
+The issues which arise on the appeal are as follows: (i) Did the Court of Appeal err in law in finding that there was a restriction of competition in the acquiring market contrary to article 101(1) TFEU and equivalent national legislation? (the restriction issue) (ii) Did the Court of Appeal find, and if so did it err in law in finding, that Visa and Mastercard were required to satisfy a more onerous evidential standard than that normally applicable in civil litigation, in order to establish that their MIFs were exempt from the prohibition on restrictive agreements pursuant to article 101(3) TFEU, because of the economic benefits to which they contributed? (the standard of proof issue) (iii) Did the Court of Appeal err in law in finding that in order to show that consumers receive a fair share of the benefits generated by the MIFs, for the purpose of satisfying the test for exemption under article 101(3) TFEU, Visa was required to prove that the benefits provided to merchants alone as a result of the MIFs outweighed the costs arising from the MIFs, without taking any account of the benefits received by cardholders as a result of the MIFs? (the fair share issue) (iv) Did the Court of Appeal find, and if so did it err in law in finding, that a defendant has to prove the exact amount of loss mitigated in order to reduce damages? (the broad axe issue)
+If it arises, the issue on the cross appeal is whether the Court of Appeal erred in remitting the AAM proceedings for reconsideration in relation to exemption under article 101(3) (the remission issue).
+Issue (i) The restriction issue
+In the CAT proceedings, the CAT decided two issues which are no longer in dispute, namely that: (i) the MIF did not amount to a restriction of competition by object; and (ii) the restriction issue fell to be considered against a counterfactual in which the transactions would be settled at par by default, which was equivalent to a default MIF of zero.
+It is also not in dispute that the setting of the UK MIF was pursuant to an agreement between undertakings within the meaning of article 101(1) (see para 95 of the CAT judgment, para 34 of Popplewell Js judgment and para 5 of the Visa restriction judgment).
+The CAT considered that bilateral MIF agreements would be made in the counterfactual and made detailed findings on this basis.
+Both Popplewell J and Phillips J disagreed with this conclusion.
+As Phillips J stated at paras 126 129 of the Visa restriction judgment: 126. despite the fact that MIFs have provided a default level of Interchange Fee for many years bilateral agreements are unknown in the UK market.
+That demonstrates the very considerable strength of the market forces which keep the Interchange Fee at the level of the default: no party has persuaded another to move away from the default and no party has volunteered to do so for some perceived benefit. 129.
+In my judgment it would require clear evidence to support a finding that [bilateral agreements] would emerge in a default settlement counterfactual when they do not arise in the actual default Scheme it is clear that there is no such evidence in these proceedings.
+On the contrary, the evidence was unanimous and unequivocal to the opposite effect
+It is now common ground that Popplewell J and Phillips J were correct so to
+It follows that the findings made by the CAT on the counterfactual on the basis of bilateral agreements being made are not relevant to the appeal.
+In the AAM proceedings, Popplewell J would have found that the Mastercard MIFs were a restriction on competition were it not for the death spiral argument.
+That argument was not supported on appeal.
+The reason that he would otherwise have found that there was a restriction is summarised at para 156 of Popplewell Js judgment: 156.
+They [the MIFs] imposed a floor below which the MSC could not fall, because acquirers had to pay at least that much to issuers and had to recoup it from the merchants, which in turn led to higher prices charged by acquirers to merchants through the MSC than if the MIF were lower or zero.
+Such a floor restricts competition because it interferes with the ability of acquirers to compete for merchants business by offering MSCs below such floor.
+It is no different in kind from a collective agreement by manufacturers to maintain inflated wholesale prices, which prevents wholesalers competing on the retail market below those prices.
+Phillips J disagreed with this reasoning and conclusion.
+His main reason for doing so is set out at para 156 of the Visa restriction judgment: 156. the situation is exactly the same at any lower level of MIF, including a zero MIF or its equivalent, a no MIF/default SAP [settlement at par] counterfactual.
+At that lower level, the default settlement rule still provides a default level of Interchange Fee, and therefore (because of the lack of competitive pressure to depart from that default) both a floor and a ceiling for that fee.
+The only difference is the level.
+Popplewell J rejected that argument in the Asda Judgment, stating at para 160 that in a no MIF counterfactual the alleged vice is not the same as the actual: there is no floor.
+However, a zero MIF or no MIF/default SAP counterfactual most certainly does give rise to a floor, both in economic terms and as a matter of logic, particularly in the context of a two sided market: it prevents the possibility of market forces driving the MIF to a negative level (equivalent to a premium on settling the transaction price).
+As I have mentioned above, that is not merely a theoretical possibility, as all the expert economists recognised .
+The Court of Appeal held that it was bound to follow the decision in Mastercard CJ that the MIFs in issue restricted competition within the meaning of article 101(1).
+It stated that this was not a decision from which the Court either can or should depart.
+Its reasoning is summarised at paras 185 186 of the judgment: 185.
+Our conclusions on the primary article 101(1) issue can be summarised quite shortly.
+The correct counterfactual for schemes like the MasterCard and Visa schemes before us was identified by the [Court of Justices] decision.
+It was no default MIF and a prohibition on ex post pricing (or a settlement at par rule).
+The relevant counterfactual has to be likely and realistic in the actual context (see the O2 Germany GmbH & Co OHG case [2006] ECR II 1231, paras 68 71 [O2 Germany v Commission (Case T 328/03)] and the [Court of Justices] decision, para 169), but for schemes of this kind, the [Court of Justice] has decided that that test is satisfied. 186.
+The [Court of Justices] decision also made clear at para 195 that MasterCards MIFs, which resulted in higher prices, limited the pressure which merchants could exert on acquiring banks, resulting in a reduction in competition between acquirers as regards the amount of the merchants service charge.
+This is not a decision from which this court either can or should depart.
+It answers the schemes argument that, whether as a matter of evidence or not, the competitive process will not differ in the counterfactual.
+The default MIFs may be a transparent common cost, which is passed on by acquirers to merchants, and which does not figure in the negotiations between them, but it does not follow that acquirers none the less compete as strongly for merchants business in relation to the acquirers margin and the additional services they offer, as they would in the absence of the default MIFs.
+It follows that there are essentially two issues which arise: (i) whether, as the Court of Appeal held, the court is bound by the Mastercard CJ decision on the restriction issue; and (ii) if not, whether that decision ought to be followed.
+This requires a detailed consideration of what was decided by the Commission, the General Court and the Court of Justice, and of their reasoning.
+Is the court bound by Mastercard CJ?
+The Mastercard Commission Decision
+The decision is summarised at paras 396 405 of the Court of Appeal judgment.
+The restriction of competition identified by the decision is summarised in the Executive Summary, point 2, as follows: The MIF in MasterCards scheme restricts competition between acquiring banks by inflating the base on which acquiring banks set charges to merchants and thereby setting a floor under the merchant fee.
+In the absence of the multilateral interchange fee the merchant fees set by acquiring banks would be lower.
+This reflects the finding made at recital 410: MasterCards MIF constitutes a restriction of price competition in the acquiring markets.
+In the absence of a bilateral agreement, the multilateral default rule fixes the level of the interchange fee rate for all acquiring banks alike, thereby inflating the base on which acquiring banks set charges to merchants.
+Prices set by acquiring banks would be lower in the absence of this rule and in the presence of a rule that prohibits ex post pricing.
+The MasterCard MIF therefore creates an artificial cost base that is common for all acquirers and the merchant fee will typically reflect the costs of the MIF.
+This leads to a restriction of price competition between acquiring banks to the detriment of merchants (and subsequent purchasers).
+This is further explained at recital 448 as follows: The decisive question is whether in the absence of the MIF the prices acquirers charge to merchants at large would be lower.
+This is the case, because the price each individual bank could charge to merchants would be fully determined by competition rather than to a large extent by a collective decision among (or on behalf of) the banks.
+At recitals 455 to 460 the Commission addressed the argument of Mastercard and Visa (who had been allowed to participate in the proceedings) that the MIF was not a restriction because its effect would be like an excise tax.
+This argument is recorded at recital 219 in the following terms: At the oral hearing Visas expert also argued that it was hard to imagine how a multilaterally set interchange fee could possibly restrict competition between acquiring banks.
+Competition among acquirers could not be stronger with at par clearing than with a MIF, just as it would be hard to assume that breweries would compete more keenly if one scraps excise taxes.
+This is essentially the same argument as that advanced successfully by Visa before Phillips J and again on this appeal.
+In summary, in a counterfactual with settlement at par (equivalent to a zero rated MIF) there is no process of competition as to that default term of settlement, just as there would not be if there was a MIF, a common and transparent cost which is also a default term of settlement, not a price or charge.
+In both the factual scenario and the counterfactual, competition is limited to the acquirers individual marginal cost and mark up.
+There is accordingly no difference in the competitive process and no restriction on competition (the zero MIF argument).
+The Commission rejected this argument for the following reasons: 455.
+MasterCard puts forward that the interchange fee does not favour a particular acquirer or type of acquirer over other acquirers/types of acquirers.
+The interchange fee is a common identical cost, borne by all acquirers, that does not influence price competition between acquirers in terms of determining the level of MSCs.
+Visas expert raised a similar argument at the oral hearing by comparing the MIF to an excise tax. 457. even if one were to qualify a MIF as a kind of excise tax this is no reason why the MIF should fall outside article 81(1) of the Treaty [now article 101(1) TFEU].
+The collective act of competing undertakings to raise charges for consumers is subject to the prohibition of article 81(1) of the Treaty. 458.
+If the concept of a restriction of competition within the meaning of article 81(1) of the Treaty had to be interpreted as MasterCard suggests, then article 81(1) of the Treaty would be entirely deprived of its effet utile.
+The MasterCard MIF not only creates an (artificial) common cost for acquirers and thereby sets a floor for the fees each acquirer charges to merchants.
+Acquirers also know precisely that all of their competitors pay the very same fees.
+The price floor and the transparency of it to all suppliers involved (that is to say the knowledge of each acquirer about the commonality of the MIF for all other acquirers in the MasterCard scheme) eliminate an element of uncertainty. 459.
+In the absence of MasterCards MIF, the prices acquirers charge to merchants would not take into account the artificial cost base of the MIF and would only be set taking into account the acquirers individual marginal cost and his mark up. 460.
+Statements of retailers demonstrate that they would be in a position to exert that pressure if acquirers were not able to refer to interchange fee as the starting point (that is to say, as the floor) for negotiating the MSC.
+This is because without a default that fixes an interchange fee rate in the absence of a bilateral agreement, merchants could shop around to contract with the acquirer who incurs the lowest interchange costs.517 Acquirers who bilaterally agree to pay relatively high interchange fees to issuers would ultimately not remain competitive, as other acquirers could undercut their merchant fees by refusing to enter into bilateral agreements with issuers or by agreeing on relatively lower interchange fees.
+The uncertainty of each individual acquirer about the level of interchange fees which competitors bilaterally agree to pay to issuers would exercise a constraint on acquirers.
+In the long run this process can be expected to lead to the establishment of inter bank claims and debts at the face value of the payment that is without deducting any interchange fees.
+A multilateral rule that by default sets a certain interchange fee rate in the absence of bilateral negotiations prevents this competitive process.
+In the absence of such a rule (and in the presence of a prohibition of ex post pricing) acquiring banks would eventually end up setting their MSCs merely by taking into account their own marginal cost plus a certain mark up.
+Footnote 517 to para 460 provides as follows: Note that in the Commissions view in the absence of a default MIF banks may or may not enter into bilateral agreements on interchange fees.
+The existence of such bilaterally agreed interchange fees is no pre requisite for the viability of the MasterCard payment card scheme.
+In the absence of a default MIF prices are established on both sides of the MasterCard scheme as set out in section 7.3.4.1, ie: each bank determines its service levels and prices in a manner that maximises its individual profits.
+Mastercard GC
+Mastercard applied to the CJEU for annulment of the Commissions decision.
+Its application was determined by the General Court.
+The General Courts decision is summarised at paras 406 411 of the Court of Appeal judgment.
+On the restriction issue the General Court summarised the Commissions reasoning and conclusion as follows: 28.
+According to the Commission, the members of the MasterCard payment organisation collectively exert market power vis vis merchants and their customers.
+Thus, the MIF had the effect of inflating the base of the MSC, while the latter could be lower if there were no MIF and if there were a prohibition of unilateral pricing a posteriori of transactions by the issuing banks (prohibition of ex post pricing).
+It follows from this that the MIF examined by the Commission in the contested decision led to a restriction of price competition between acquiring banks to the detriment of merchants and their customers (recitals 410, 411 and 522 to the contested decision).
+The General Court addressed the complaints made relating to the assessment of competition in the absence of the MIF at paras 129 167.
+At para 140 it made the following general observation about the purpose of article 101(1)(a): 140. it is helpful to point out that article 81(1)(a) EC [now article 101(1)(a) TFEU] expressly provides that measures which directly or indirectly fix purchase or selling prices constitute restrictions of competition, and that, according to the case law, the purpose of article 81(1)(a) EC is to prohibit undertakings from distorting the normal formation of prices on the markets (ICI v Commission (Case T 13/89) [1992] ECR II 1021, para 311).
+At para 142 the General Court set out the complaint made based on the zero MIF argument: 142. the applicants submit, in essence, that the fact that the MIF had an impact on the level of the MSC does not affect competition between acquirers, because the MIF applies in the same way to all acquirers and operates as a cost that is common to all of them.
+Thus, the prohibition of ex post pricing would effectively impose a MIF set at zero which, from a competitive aspect, would be equivalent to and just as transparent as the current MIF, the only difference being the level at which it is set.
+The General Court rejected this argument and set out its conclusion at para 143 as follows: 143.
+This line of argument cannot be accepted.
+Since it is acknowledged that the MIF sets a floor for the MSC and in so far as the Commission was legitimately entitled to find that a MasterCard system operating without a MIF would remain economically viable, it necessarily follows that the MIF has effects restrictive of competition.
+By comparison with an acquiring market operating without them, the MIF limits the pressure which merchants can exert on acquiring banks when negotiating the MSC by reducing the possibility of prices dropping below a certain threshold.
+Mastercard CJ
+Mastercard appealed against the General Courts decision to the Court of Justice.
+The Advocate General recommended that the appeal be dismissed.
+He summarised the Commissions reasoning and conclusion as follows: AG6 In the decision at issue, the Commission considered that the decisions setting the MIF, which it characterised as decisions of an association of undertakings within the meaning of article 81(1) EC, restrict competition between acquiring banks and thereby infringe that article and article 53 of the EEA Agreement, in that they amount in fact to setting a minimum price for the MSC AG54 In the present case, the Commission examined the competitive process that would have developed on the acquiring market in the absence of the MIF at recitals 458 to 460 to the decision at issue and concluded that, in the absence of the MIF and with a prohibition on ex post pricing, the prices charged to merchants by acquirers would only be set taking into account the acquirers individual marginal cost and his mark up.
+The Court of Justices decision is summarised at paras 412 417 of the Court of Appeal judgment.
+The Court of Justice explained and affirmed the General Courts conclusion at para 143 of its judgment in the following terms: 193.
+In particular, while the General Court clearly explained in para 143 of the judgment under appeal that the MIF had restrictive effects in that they: [limit] the pressure which merchants can exert on acquiring banks when negotiating the MSC by reducing the possibility of prices dropping below a certain threshold, in contrast with an acquiring market operating without them, the General Court did not merely presume that the MIF set a floor for the MSC but, on the contrary, proceeded to carry out a detailed examination in paras 157 to 165 of the judgment under appeal in order to determine whether that was in fact the case.
+The Court of Justice endorsed the General Courts rejection of the zero MIF argument in the following terms: 195. the appellants cannot criticise the General Court for having failed to explain how the hypothesis applied had less restrictive effects on competition than the MIF, given that the only difference between the two situations lies in the pricing level of the MIF.
+As the Commission rightly points out, the judgment under appeal is not based on the premiss that high prices in themselves constitute an infringement of article 81(1) EC.
+On the contrary, as is apparent from the very wording of para 143 of the judgment under appeal, high prices merely arise as the result of the MIF which limit the pressure which merchants could exert on acquiring banks, with a resulting reduction in competition between acquirers as regards the amount of the MSC.
+Visa and Mastercards arguments
+Ms Dinah Rose QC for Visa (whose argument is adopted and supported by Mr Mark Hoskins QC for Mastercard) submits that the Court of Appeal was wrong to conclude that it was bound by Mastercard CJ.
+The decisions of the Court of Justice and the General Court depended on the factual basis of the Mastercard Commission Decision.
+Crucial to that factual basis was the Commissions determination on the evidence before it that the competitive pressure which could be brought to bear on acquirers by merchants is greater in the counterfactual because of the possibility of bilateral negotiations of interchange fees and the uncertainty that that would create.
+Ms Rose relies in particular on para 460 of the Mastercard Commission Decision which describes how, if there were no default MIF, merchants could shop around to contract with the acquirer who incurs the lowest interchange costs and how the uncertainty of each individual acquirer about the level of interchange fees which competitors bilaterally agree to pay to issuers would exercise a constraint on acquirers.
+This is the pressure which merchants would be able to exert in the counterfactual, as borne out by statements of retailers.
+This is to be contrasted with the evidence before and the findings made by Phillips J in the Visa restriction judgment.
+He found that there would be no bilateral agreements in the counterfactual (para 129) and no resulting competition (para 151).
+It followed that there would be no competitive pressure as found by the Commission.
+Ms Rose submits that this is the pressure referred to in para 143 of Mastercard GC and para 195 of Mastercard CJ.
+In para 195 the Court of Justice was making it clear that the Commissions finding of infringement had been upheld by the General Court because of the Commissions findings that MIFs limit this pressure which merchants could otherwise exert on acquirers, thereby reducing competition between acquirers.
+Mastercard CJ is accordingly factually distinguishable.
+It turned on the factual assessment made by the Commission which was different to that made by Phillips J.
+Although Popplewell J did not make the same findings as Phillips J, he also found that there would be no bilateral agreements in the counterfactual, which is a critical difference in the factual assessment.
+It is well established that a court is not bound by factual assessments made by the Commission Crehan v Inntrepreneur Pub Co (CPC) (Office of Fair Trading intervening) [2007] 1 AC 333; [2006] UKHL 38.
+The Court of Appeal was therefore wrong to conclude that it was bound by Mastercard CJ.
+In our judgment Visa and Mastercards arguments involve a
+misinterpretation of the Mastercard Commission Decision, Mastercard GC and Mastercard CJ.
+In relation to the Mastercard Commission Decision, in the section of the decision relied upon by Visa and Mastercard, recital 459, read in the context of recitals 457 and 458, is as important as recital 460.
+Recital 459 bears repetition; it states: In the absence of MasterCards MIF, the prices acquirers charge to merchants would not take into account the artificial cost base of the MIF and would only be set taking into account the acquirers individual marginal cost and his mark up.
+The Commission was here focusing on the process by which merchants bargain with acquirers over the MSC.
+It was contrasting the position where that charge is negotiated by reference to a minimum price floor set by the MIF and one where it is negotiated by reference only to the acquirers individual marginal cost and his mark up ie between a situation in which the charge is only partly determined by competition and one in which it is fully determined by competition.
+In the latter situation the merchants have the ability to force down the charge to the acquirers individual marginal cost and his mark up and to negotiate on that basis.
+This is the pressure which is referred to in recital 460 of the decision.
+This is made clear by the reference in the first sentence of recital 460 to that pressure ie the pressure referred to in recital 459.
+It is correct that the Commission went on in recital 460 to describe the
+competitive process involved if there were bilateral negotiations over interchange fees, but the ultimate point it was here making is that that process would be transient and that acquiring banks would eventually end up setting their MSCs merely by taking into account their own marginal cost plus a certain mark up.
+The transient nature of such a competitive process shows that the existence of such a process cannot have been integral to the Commissions decision that there was a restriction on competition.
+This is further borne out by footnote 517 in which the Commission stated that in the counterfactual banks may or may not enter into bilateral agreements on interchange fees, thereby making it clear that such agreements were not essential to its reasoning.
+Mastercard GC is properly to be interpreted in a similar way.
+In para 143 the General Court rejected the zero MIF argument and held that since the MIF sets a minimum price floor for the MSC (which is not determined by competition) it necessarily follows that the MIF has effects restrictive of competition.
+This is the context in which the pressure referred to in the next sentence falls to be considered.
+The consequence of the minimum price floor set by the MIF is that such pressure is limited to only part of the MSC ie that relating to the acquirers individual marginal cost and mark up (in the present case about 10% of the MSC).
+A similar analysis applies to Mastercard CJ.
+The pressure which the Court of Justice referred to at para 195 is the same as that referred to in para 143 of Mastercard GC, which the Court of Justice was endorsing.
+Accordingly, we do not consider that Mastercard CJ can be factually distinguished in the manner suggested by Visa and Mastercard.
+Visa and Mastercard further contend that the recent decision of the Court of Justice in Gazdasgi Versenyhivatal v Budapest Bank Nyrt (Case C 228/18) EU:C:2020:265 (Budapest Bank) established that the question whether MIFs that set a floor under the MSC restrict competition has not been settled by Mastercard CJ, but must be determined by a national court by carrying out an in depth evidential examination of its effects, and that this was contrary to the judgment of the Court of Appeal.
+The Court of Justices decision in Budapest Bank was pronounced after the conclusion of the hearing of this appeal but the parties were allowed to make written submissions as to its significance.
+The Advocate Generals opinion had already been referred to in argument.
+Budapest Bank concerned an agreement made by banks that participated in both the Visa and Mastercard schemes in Hungary, by which they agreed on a uniform MIF that was applicable to both schemes.
+It was argued by the parties in the national proceedings that the agreement had the effect of preventing the fees from escalating upwards.
+The issue in the proceedings was whether the agreement had the object of restricting competition.
+It did not concern whether it had the effect of so doing.
+The Hungarian Supreme Court referred four questions to the CJEU for a preliminary ruling.
+The second question concerned whether the MIF agreement had the object of restricting competition.
+The Court of Justice ruled that it would only do so if the agreement in the light of its wording, its objectives and its context, can be regarded as posing a sufficient degree of harm to competition to be classified thus, a matter which is for the referring court to determine.
+In so ruling the Court of Justice rejected the Commissions argument that, in
+reliance on Mastercard CJ, the MIF agreement necessarily had the object of restricting competition.
+Particular reliance is placed by Visa and Mastercard on paras 78 79 of the judgment which state: 78.
+Second, as regards the acquiring market in Hungary, even assuming that the MIF Agreement had inter alia as its objective the fixing of a minimum threshold applicable to the service charges, the Court has not been provided with sufficient information to establish that that agreement posed a sufficient degree of harm to competition on that market for a restriction of competition by object to be found to exist.
+It is, however, for the referring court to carry out the necessary verifications in that respect.
+In particular, in the present instance, subject to those 79. verifications, it is not possible to conclude on the basis of the information produced for this purpose that sufficiently general and consistent experience exists for the view to be taken that the harmfulness of an agreement such as that at issue in the main proceedings to competition justifies dispensing with any examination of the specific effects of that agreement on competition.
+The information relied on by the Competition Authority, the Hungarian Government and the Commission in that connection, that is to say, primarily, that authoritys decision making practice and the case law of the Courts of the European Union, specifically demonstrates, as things currently stand, the need to conduct an in depth examination of the effects of such an agreement in order to ascertain whether it actually had the effect of introducing a minimum threshold applicable to the service charges and whether, having regard to the situation which would have prevailed if that agreement had not existed, the agreement was restrictive of competition by virtue of its effects.
+Visa and Mastercard contend that this shows that MIFs do not necessarily affect competition and that whether or not they do so is to be determined by the national court carrying out an in depth examination of its effects on competition in the actual and counterfactual markets.
+It is surprising that so much reliance should now be placed by Visa and
+Mastercard on Budapest Bank.
+At the hearing it was recognised by Visa that it raised a different question.
+As stated at para 116 of Visas written case: That case concerned the question whether an agreement between a number of Hungarian banks introducing a uniform MIF for both Visa and Mastercard credit card transactions in Hungary should be characterised as having the object of restricting competition.
+It was therefore quite a different question from that which the CJEU had considered in Mastercard CJEU, in that it concerned alleged infringements by object rather than effect, and a single agreement covering both Visa and Mastercard, rather than one schemes rules applicable only to its own system.
+In our judgment the case can clearly be distinguished in that: (i) it concerned restriction by object rather than effect; (ii) it involved a different type of MIF agreement and, in particular, one which was said to prevent escalating interchange fees; and (iii) it involved a different counterfactual, namely one where each scheme had its own MIF rather than there being no MIF.
+The fact that the Commission sought to rely on Mastercard CJ in argument does not affect these important distinctions, all the more so given that the Commissions attempt to read across from an effect case to an object case was rejected by the Court of Justice.
+In any event, in the present case there has been an examination by all courts
+of the effects of the MIF on competition in the actual and counterfactual markets, including whether it operates as a price floor.
+The issue is whether the effects as found are materially the same so that the same legal conclusion is to be drawn as in Mastercard CJ.
+For all these reasons, in our judgment Budapest Bank does not support Visa and Mastercards case on the restriction issue.
+Still less, as is boldly submitted, is it determinative in their favour.
+Whether Mastercard CJ is binding depends upon whether the findings upon which that decision is based are materially distinguishable from those made or accepted in the present appeals.
+We have rejected Visa and Mastercards arguments that it can be distinguished in the manner suggested by them and that their case is made out or supported by Budapest Bank.
+In our judgment, the essential factual basis upon which the Court of Justice held that there was a restriction on competition is mirrored in these appeals.
+Those facts include that: (i) the MIF is determined by a collective agreement between undertakings; (ii) it has the effect of setting a minimum price floor for the MSC; (iii) the non negotiable MIF element of the MSC is set by collective agreement rather than by competition; (iv) the counterfactual is no default MIF with settlement at par (that is, a prohibition on ex post pricing); (v) in the counterfactual there would ultimately be no bilaterally agreed interchange fees; and (vi) in the counterfactual the whole of the MSC would be determined by competition and the MSC would be lower.
+For all these reasons we conclude that Mastercard CJ is binding and that the Court of Appeal was correct so to hold.
+Should the court follow Mastercard CJ?
+In the light of our conclusion that this Court is bound by Mastercard CJ this further issue does not arise.
+Given the importance of the issues raised and the detailed arguments presented, we shall nevertheless briefly address it.
+Under article 101(1) an agreement between undertakings which has the effect of directly or indirectly fixing purchase or selling prices is a restriction of competition under article 101(1)(a).
+It is well established that the prohibition of price fixing under article 101(1)
+also extends to the fixing of part of the price Krupp Thyssen Stainless GmbH v Commission of the European Communities (Joined Cases T 45/98 and T 47/98) [2001] ECR II 3757; [2002] 4 CMLR 15, paras 156 157.
+The relevant selling price in the present appeals is the MSC.
+On the facts as found, the effect of the collective agreement to set the MIF is to fix a minimum price floor for the MSC.
+In the words of Mr Dryden, AAMs expert economist, it sets a reservation price.
+That minimum price is non negotiable.
+It is immunised from competitive bargaining.
+Acquirers have no incentive to compete over that part of the price.
+It is a known common cost which acquirers know they can pass on in full and do so.
+Merchants have no ability to negotiate it down.
+Whilst it is correct that higher prices resulting from a MIF do not in themselves mean there is a restriction on competition, it is different where such higher prices result from a collective agreement and are non negotiable.
+Whilst it is also correct that settlement at par sets a floor, it is a floor which reflects the value of the transaction.
+Unlike the MIF, it involves no charge resulting from a collective agreement, still less a positive financial charge.
+There is a clear contrast in terms of competition between the real world in which the MIF sets a minimum or reservation price for the MSC and the counterfactual world in which there is no MIF but settlement at par.
+In the former a significant portion of the MSC is immunised from competitive bargaining between acquirers and merchants owing to the collective agreement made.
+In the latter the whole of the MSC is open to competitive bargaining.
+In other words, instead of the MSC being to a large extent determined by a collective agreement it is fully determined by competition and is significantly lower.
+For all these reasons, which are essentially the same as those given by the Commission, the General Court, the Court of Justice, Popplewell J and the Court of Appeal, even if we were not bound by Mastercard CJ, we would follow it and conclude that there was in the present cases a restriction on competition.
+Conclusion on the restriction issue
+For these reasons we dismiss the appeal on issue (i).
+Issue (ii) The standard of proof issue
+This ground of appeal is advanced jointly by Visa and Mastercard.
+They submit that the Court of Appeal erred in law insofar as it concluded that, in relation to article 101(3) TFEU: (i) there is a specific requirement for robust and cogent evidence, which is a more onerous standard than that under the normal domestic civil standard of proof on the balance of probabilities; and (ii) there is a legal requirement that matters required to be considered have to be proved by facts and empirical data.
+We are concerned here with circumstances in which a party in breach of article 101(1) seeks exemption by satisfying the requirements of article 101(3).
+The following four conditions must be satisfied.
+First, the anti competitive conduct must contribute to improving the production or distribution of goods or to promoting technical or economic progress.
+Secondly, consumers must be allowed a fair share of the resulting benefit.
+Thirdly, it must not impose on the participating undertakings any restrictions which are not indispensable to the attainment of these objectives.
+Fourthly, it must not afford them the possibility of eliminating competition in respect of a substantial part of the products in question. (See, for example, GlaxoSmithKline Services Unlimited v Commission of the European Communities (Case T 168/01) [2006] ECR II 2969; [2006] 5 CMLR 29 (GlaxoSmithKline), para 234.) It is common ground between the parties that if the restriction on competition established under article 101(1) is to be justified, the burden of satisfying the four conditions set out in article 101(3) lies on the defendant.
+Visa and Mastercard describe the present issue as relating to the standard of proof.
+Visa and Mastercard maintain that in the first instance proceedings in the Commercial Court the judges adopted diverging views as to the standard of proof and the nature of the evidence required to satisfy that standard.
+In the AAM proceedings, Popplewell J followed the orthodox common law approach that the standard of proof is the balance of probabilities and that there is no additional requirement as to the evidence which is capable of satisfying that standard.
+In the context of exemption the requirement for substantiation is no more than a requirement for evidence, and the suggestion that it needs to be empirical and convincing means no more than that it must be based on evidence, not speculation, and be sufficient to convince the court to the requisite standard of proof which is the balance of probabilities.
+If the epithet robust is intended to add more and connote an enhanced standard of proof, it is difficult to discern any legal basis for such an approach, (at para 305) In the Visa exemption judgment, Phillips J referred to the agreement between the parties that it was for Visa to establish on the balance of probabilities that its UK MIFs at a particular level are or were exempt.
+He went on to address the relationship of that standard of proof with the requirement under EU law (citing the Mastercard Commission Decision at para 690) that the claim that a restrictive agreement creates efficiencies must be founded on detailed, robust and compelling analysis and that assumptions and deductions be based on empirical data and facts.
+In my judgment the distinction being drawn is between: (a) real links to real efficiencies, capable of being observed and demonstrated on the facts by evidence (in other words, requiring empirical data); and (b) theoretical or logically assumed links and efficiencies based on broad economic or logical analysis, opinion or anecdotal evidence, perhaps sound in theory but possibly failing to take into account one or more of the many factors which arise in highly complex interactions in the real economy.
+I see no difficulty in this court determining whether the former has been proved on the balance of probabilities.
+That test is capable of accommodating varying requirements as to what is expected to meet the standard: contract terms must be certain, allegations of fraud must be distinctly proved and it is often said that cogent evidence is required to rebut certain presumptions.
+In the case of article 101(3), it is recognised that robust analysis and cogent evidence will be required to establish, on the balance of probabilities, that a restrictive agreement in fact and in the real world (as opposed to in theory) gives rise to pro competitive effects. (at para 24) Phillips J went on to state (at para 25) that in his view this analysis did not differ significantly from that of Popplewell J.
+The Court of Appeal began its consideration of the conditions for exemption under article 101(3) with the following uncontroversial statement: 77.
+Pursuant to article 2 of the Modernisation Regulation [Council Regulation (EC) No 1/2003 on the implementation of Treaty competition rules (OJ 2003 L1, p 1)] the burden of proving that these cumulative conditions are satisfied is upon the schemes.
+Recital 5 to the [Modernisation] Regulation makes it clear, however, that the standard of proof is for the national law, so that the usual civil standard of the balance of probabilities applies.
+It then adopted para 24 of the Visa exemption judgment of Phillips J and continued: 80.
+We agree with Phillips J (at para 25 of that judgment), that this analysis does not differ significantly from that of Popplewell J at para 305 of his judgment, but to the extent that there are any differences, we prefer the analysis of Phillips J.
+In so far as Ms Dinah Rose QC, leading counsel for Visa, sought to argue that Phillips J adopted too prescriptive an approach and that any evidence should suffice provided it meets the civil standard of proof, we do not accept that argument.
+We consider that Phillips J was right that regard should be had to the requirement of the Commission and the CJEU for cogent and convincing arguments and evidence (see GlaxoSmithKline Services Unlimited v Commission of the European Communities (Case T 168/01) EU:T:2006:265, [2006] ECR II 2969; [2006] 5 CMLR 1623 para 235, which was applied and followed in the General Courts decision in MasterCard at para 196). 81.
+Although the standard of proof is a matter of English law, the nature of the evidence which will satisfy that standard must be informed by European Union law and Commission decisional practice since, ultimately, whether a party is entitled to exemption involves the application of a European treaty.
+Furthermore, in that context, it is important to maintain a consistency of approach across member states as to the requirements of article 101(3).
+Other passages in the judgment of the Court of Appeal (paras 85, 86 and 249) demonstrate that it considered that EU law requires cogent factual and empirical evidence to satisfy article 101(3).
+In particular, the Court of Appeal (at paras 84 and 85) derived from the Commission Guidelines on the application of what is now article 101(3) TFEU (2004/C 101/8) (the Guidelines) and the EU jurisprudence on article 101(3), first, a need for the relevant benefits to be causally linked to the relevant restriction and, secondly, for that causal link to be established by facts and evidence supported by empirical analysis and data and not just economic theory.
+It added (at para 86): Thirdly, as para 54 of the Guidelines makes clear, the causal link must be sufficiently direct to be capable of proof and an indirect effect will not generally be sufficient, precisely because cogent evidence of the link based on empirical analysis and data and not merely economic theory is required.
+It is convenient to observe at this point that, contrary to the submission of Mastercard, the Court of Appeal did not conclude that only facts and empirical data but not economic theory may be relied upon in this regard.
+The Court of Appeal made clear that its objection was to reliance solely on economic theory and that, in its view, a claim under article 101(3) must be based on empirical data and fact and not economic theory alone (paras 85 and 86).
+Visa and Mastercard complain that the Court of Appeal wrongly adopted an unduly onerous standard of proof.
+They take as their starting point Council Regulation (EC) No 1/2003 on the implementation of Treaty competition rules (the Modernisation Regulation).
+The major change effected by the Modernisation Regulation was that whereas previously the grant of exemption from the prohibition on agreements which restrict competition had been the exclusive function of the European Commission, the Modernisation Regulation introduced a directly applicable exception system in which the competition authorities and courts of the member states have the power to apply the exemption provisions under what is now article 101(3).
+The previous system of notification to the Commission for exemptions was abolished and the widespread involvement of national courts and authorities in exempting restrictive agreements was clearly contemplated.
+It is in this context that recital 5 of the Preamble states: In order to ensure an effective enforcement of the Community competition rules and at the same time the respect of fundamental rights of defence, this Regulation should regulate the burden of proof under articles 81 and 82 [now articles 101 and 102] of the Treaty.
+It should be for the party or the authority alleging an infringement of article 81(1) and article 82 of the Treaty to prove the existence thereof to the required legal standard.
+It should be for the undertaking or association of undertakings invoking the benefit of a defence against a finding of an infringement to demonstrate to the required legal standard that the conditions for applying such defence are satisfied.
+This Regulation affects neither national rules on the standard of proof nor obligations of competition authorities and courts of the member states to ascertain the relevant facts of a case, provided that such rules and obligations are compatible with general principles of Community law.
+Similarly, article 2 which bears the heading Burden of proof provides: In any national or Community proceedings for the application of articles 81 and 82 of the Treaty, the burden of proving an infringement of article 81(1) or of article 82 of the Treaty shall rest on the party or the authority alleging the infringement.
+The undertaking or association of undertakings claiming the benefit of article 81(3) of the Treaty shall bear the burden of proving that the conditions of that paragraph are fulfilled.
+There is, accordingly, a clear allocation of the burden of proof, while questions as to the standard of proof are left to the law of the member state concerned, provided that the national rules are compatible with general principles of EU law.
+Visa and Mastercard submit, therefore, that EU law expressly reserves the question of the standard of proof to national law, subject to the principles of effectiveness and equivalence.
+In this regard, Visa and Mastercard rely further on the following passage in the decision of the Court of Justice in Eturas UAB v Lietuvos Respublikos konkurencijos taryba (Case C 74/14) [2016] 4 CMLR 19, paras 30 32: 30.
+Although article 2 of Regulation No 1/2003 expressly governs the allocation of the burden of proof, that regulation does not contain any provisions on more specific procedural aspects.
+Thus, in particular, that regulation does not contain any provision in relation to the principles governing the assessment of evidence and the standard of proof in national proceedings for the application of article 101 TFEU. 31.
+That conclusion is confirmed by recital 5 of Regulation No 1/2003, which expressly states that the regulation does not affect national rules on the standard of proof. 32.
+According to settled case law, in the absence of EU rules on the matter, it is for the national legal order of each member state to establish them in accordance with the principle of procedural autonomy, provided, however, that those rules are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness)
+This passage, however, is not as helpful to Visa and Mastercard as might at first appear.
+The issue in that case, which was a reference from the Supreme Administrative Court of Lithuania in proceedings where an anti competitive concerted practice was alleged, was whether certain evidence was sufficient proof of a fact which, if established, would trigger a presumption of liability under article 101(1).
+The passage in the judgment of the Court of Justice at paras 30 32, cited above, was concerned with the specific question whether the dispatch of a message through an electronic system may constitute sufficient evidence to establish that the operators which used the system were aware, or ought to have been aware, of the content of that message.
+Unsurprisingly, the Court of Justice held that, in accordance with the principle of procedural autonomy, the standard of proof in relation to establishing that fact was a matter for the national legal order of the member state concerned.
+The Court of Justice went on, however, (at para 33) to distinguish the presumption arising under article 101(1) of a causal connection between a concertation and the market conduct of the undertakings participating in the practice.
+That presumption, it emphasised, followed from article 101(1) and consequently formed an integral part of the EU law which the national court was required to apply.
+The Court of Justice then went on (at paras 46 49) to address in detail the nature of the evidence that would be sufficient to rebut the presumption.
+In our view, the fact that the Court of Justice in Eturas addressed, as a question of EU law, what evidence was capable of rebutting the presumption of participation in a concerted practice provides the key to resolving the present issue.
+In that case Advocate General Szpunar observed (at AG100), with regard to rebuttable presumptions in competition law: Insofar as such presumptions stem from article 101(1) TFEU, as interpreted by the court, and consequently form an integral part of applicable EU law, they do not fall within the scope of the principle of the autonomy of national procedural law and are therefore binding on national authorities when they apply EU competition rules.
+As Mr Nicholas Khan QC, on behalf of the Commission, put it in his oral submissions, Eturas illustrates how the nature of the evidence by which a finding of infringement can be secured or rebutted may be a question of EU law.
+In the same way, the nature of the evidence by which an undertaking may establish that a restriction on competition is exempted by virtue of article 101(3) may also be a question of EU law.
+In the present case, the essential complaint made by Visa and Mastercard under this ground of appeal does not relate to the standard of proof but to the nature of the evidence required to meet the standard of proof in this context.
+More specifically, it relates to the type of evidence needed to establish that the benefits from the MIF rules under consideration outweigh the detriments to merchants and are indispensable for achieving those benefits.
+The Court of Appeal recognised this distinction at paras 77 to 81 of its judgment, where it expressly accepted that the applicable standard of proof was the usual civil standard of the balance of probabilities but observed that the nature of the evidence which will satisfy that standard must be informed by EU law and Commission decisional practice.
+While the Modernisation Regulation recognises the autonomy of member states in determining the legal test for the standard of proof under article 101(3), it does not recognise any autonomy in the member states to determine the nature of the evidence required to satisfy that standard.
+The outcome on this issue, therefore, does not depend on Visa and Mastercard upholding national procedural rules about the standard of proof but on whether EU law imposes requirements as to what type of evidence is capable of discharging that burden.
+It is clear, in our view, that article 101(3) does impose requirements as to the nature of the evidence which is capable of discharging the burden on an undertaking to establish an exemption under that provision.
+Section 60 of the 1998 Act imports these requirements into domestic competition law.
+Article 101(3) is founded on the notion that notwithstanding the existence of a restriction on competition and its likely negative effect on competition and consumers, efficiencies and benefits arising from the conduct which gave rise to the restriction may, nevertheless, justify exemption from the prohibition in article 101(1).
+This is an inherently empirical proposition and necessarily requires the authority or court addressing the issue to carry out a balancing exercise a complex assessment (GlaxoSmithKline, Court of First Instance, at paras 241, 304 and 307) involving weighing the pro competitive effect against the anti competitive effect of the conduct in question.
+Cogent empirical evidence is necessary in order to carry out the required evaluation of the claimed efficiencies and benefits.
+To the extent that objective efficiencies caused by a restriction cannot be established empirically, they cannot be balanced with the restrictive effects.
+As a result, although the standard of proof is a matter of domestic law, the nature of the evidence which will satisfy that standard must take account of the substantive requirements of article 101(3).
+This view is confirmed by the practice of the Commission and the judgments of the EU courts.
+The Guidelines were issued in 2004, in part to assist national courts and authorities in member states in undertaking what was for them the new role of applying article 101(3).
+The Guidelines are not binding but they are based on the experience and expertise of the Commission which had previously had sole responsibility for carrying out the balancing test and granting exemptions, and they provide an analytical framework for the application of article 101(3).
+In particular, they address (at paras 50 and 51) what is involved in identifying and evaluating the causal link between a restriction of competition and the creation of an efficiency and they cast light on this balancing exercise. 50.
+The purpose of the first condition of [article 101(3)] is to define the types of efficiency gains that can be taken into account and be subject to the further tests of the second and third conditions of [article 101(3)].
+The aim of the analysis is to ascertain what are the objective benefits created by the agreement and what is the economic importance of such efficiencies.
+Given that for [article 101(3)] to apply the pro competitive effects flowing from the agreement must outweigh its anti competitive effects, it is necessary to verify what is the link between the agreement and the claimed efficiencies and what is the value of these efficiencies. 51.
+All efficiency claims must therefore be substantiated so that the following can be verified: (a) The nature of the claimed efficiencies; (b) The link between the agreement and the efficiencies; (c) The likelihood and magnitude of each claimed efficiency; and (d) How and when each claimed efficiency would be achieved. (Original emphasis) This procedure requires the party seeking exemption to identify, substantiate and evaluate the claimed efficiencies and to verify their causal link with the anti competitive conduct as a pre condition to the balancing process which could not otherwise take place.
+There is a requirement for detailed, empirical evidence and analysis in order that this evaluative exercise can be carried out.
+In its judgment in GlaxoSmithKline (which was upheld by the Court of Justice, Third Chamber, GlaxoSmithKline Services Unlimited v Commission of the European Communities (Joined Cases C 501/06 P, C 513/06 P, C 515/06 P and C 519/06 P) [2009] ECR I 9291; [2010] 4 CMLR 2), the Court of First Instance (Fourth Chamber, Extended Composition) observed (at para 235) that a person seeking to rely on what is now article 101(3) must demonstrate that its conditions are satisfied, by means of convincing arguments and evidence.
+Referring to the reviewing jurisdiction of the Court of First Instance it noted (at para 242) that it is for the court to establish not only whether the evidence relied on is factually accurate, reliable and consistent, but also whether it contains all the information which must be taken into account for the purpose of assessing a complex situation and whether it is capable of substantiating the conclusions drawn from it.
+With regard to the first condition it observed (at para 248): It is therefore for the Commission, in the first place, to examine whether the factual arguments and the evidence submitted to it show, in a convincing manner, that the agreement in question must enable appreciable objective advantages to be obtained (See also paras 249, 263, 304, 307)
+We are unable to accept the submission on behalf of Visa, that in GlaxoSmithKline the evidential basis for the application for article 101(3) which was accepted by the Court of First Instance was almost entirely theoretical and based on economic studies.
+Having referred (at para 235) to the need for convincing arguments and evidence to demonstrate that the conditions of article 101(3) were satisfied, the General Court referred (at para 256) to the items of economic or econometric evidence submitted by GSK during the administrative procedure.
+The description of that material at paras 258 and 259 shows that it essentially comprised empirical evidence.
+The General Court observed (at para 263) that the factual arguments and the supporting evidence submitted by GSK appeared to be relevant, reliable and credible, having regard to their content which was corroborated in a number of significant aspects by documents originating with the Commission.
+This approach was followed in the Mastercard Commission Decision.
+There, the Commission stated (at recital 671): Given that for [article 101(3)] of the Treaty to apply the pro competitive effects flowing from the agreement must outweigh anti competitive effects, it is necessary to verify what the link between the agreement and the claimed efficiencies and what the value of these efficiencies are.
+The Commission did not dispute that payment card schemes such as Mastercards may represent, as such, economic and technical progress.
+However, it considered that the decisive question was whether the Mastercard MIF specifically contributed to that progress (at recital 679).
+In addressing Mastercards balancing of demand arguments the Commission referred to the assumption underlying the Mastercard MIF that there was a perceived imbalance between the issuing and the acquiring business in the scheme.
+The Commission observed (at recital 686): Also, an imbalance between issuing and acquiring cannot be assumed on the basis of cost considerations only but has to comprise an analysis of revenues as well.
+A cost imbalance is as such no sufficient evidence to explain why MasterCards MIF is always paid by the acquirer to the issuer, irrespective of the concrete market situation.
+If receipts (interests, money exchange fees, penalty fees, etc) or other monetary benefits (resulting from cost savings such as reduction of staff, paperwork etc) from payment card issuing provide sufficient commercial incentives for banks to invest in incremental card issuing, a transfer from acquiring to issuing may be superfluous and even counterproductive as the revenue transfer dampens card acceptance due to the increase of costs on the merchants side.
+Robust empirical evidence is therefore required to establish the necessity for and the direction of a fallback interchange fee. (Original emphasis) (See also recital 720)
+Similarly, in a section of the decision headed Need for empirical evidence No excessive burden of proof on MasterCard, the Commission explained (at recital 694) that Mastercard erred in its assertion that the Commission imposed an excessively high burden of proof on Mastercard if it required Mastercard to demonstrate empirically a causal link between the MIF and the actual effects on system output as well as the objective efficiencies that could result from increased system output.
+It continued (at recital 695): It is on the undertakings in the first place to present to the Commission the evidence intended to establish that the agreement in question fulfils the conditions laid down by [article 101(3)] of the Treaty.
+In the context of the first condition it has to be ascertained that the restrictive effects are offset by efficiencies.
+In this context the undertakings concerned must demonstrate whether a MIF generates the positive effects which the underlying model claims to achieve, here: an increase of system output and possible related efficiencies.
+To the extent that objective efficiencies cannot be established empirically, they cannot be balanced with the restrictive effects.
+Some form of convincing empirical evidence on the actual effect of a MIF on the market is therefore required.
+A footnote to the third sentence of recital 695 (footnote 840) reads: Again, it should be noted that an increase in system output does not constitute an objective efficiency if the benefits of increased card usage only accrue to banks, while customers and merchants are worse off due to higher retail prices and increased merchant fees.
+Hence, evoking the maximisation of system output also requires a convincing analysis that consumers benefit from this.
+On behalf of Visa and Mastercard it is submitted that these passages must be read in the context that the Commission was responding to the very different evidence put forward by Mastercard in that case, namely the Baxter framework, a different, older and less sophisticated economic theory which had been superseded by the work of Rochet and Tirole (discussed further in para 132 below).
+However, the Commissions statements at recitals 686 and 695 are general statements made before consideration of the Baxter framework which is introduced at recital 703.
+It is immediately preceded by the statement (at recital 702) that notwithstanding the lack of evidence to bolster Mastercards efficiency claim, the Commission has also assessed the theoretic underpinnings of Mastercards MIF.
+Similarly, the schemes are not assisted by their reliance on the following passage at recital 731 of the Mastercard Commission Decision which, they maintain, describes the Commissions approach: Contrary to MasterCards perception the Commissions position is not that only the level of a MIF is a decisive criterion for assessing whether that MIF fulfils the first condition of [article 101(3)] of the Treaty.
+Rather, the existence of objective appreciable efficiencies is assessed in relation to the MIF as such, the effects it produces on the market and the manner in which it is set.
+In particular, the Commission verifies on the basis of the evidence submitted whether the model underlying a MIF is based on realistic assumptions (which is not the case here), whether the methodology used to implement that model in practice is objective and reasonable (which is not the case for the two methodologies used by MasterCard) and whether the MIF indeed has the positive effect on the market to the benefit of both customer groups which the model claims.
+The Commission was not subscribing here to the view that convincing proof of efficiencies can be provided by economic modelling and assumptions alone.
+On the contrary, the Commission made abundantly clear the need for empirical evidence in the immediately preceding recital: There is no presumption that MIFs in general enhance the efficiency of card schemes just as there is no presumption that they do not fulfil the conditions of [article 101(3)] of the Treaty and are therefore illegal.
+A MIF may be used by banks to achieve efficiencies as well as to extract rents.
+The Commissions conclusion on the efficiencies of a MIF will depend on the concrete evidence brought forward by the parties. (recital 730) and the immediately following recital: Any claim that a MIF creates efficiencies within the meaning of [article 101(3)] of the Treaty must therefore be founded on a detailed, robust and compelling analysis that relies in its assumptions and deductions on empirical data and facts.
+MasterCard has not provided such analysis and empirical evidence, (recital 732)
+The appeal against the Commission decision was dismissed by the General Court in Mastercard GC.
+In those proceedings, Mastercard had complained that an excessively high burden of proof had been imposed on the applicants in relation to the conditions of what is now article 101(3) TFEU, whereas the Commission had been required to analyse the arguments and the evidence adduced by reference to the balance of probabilities alone (paras 194, 195 and 237).
+In rejecting this submission, the General Court observed (at para 196) that a person who relies on [article 101(3)] must demonstrate that those conditions are satisfied, by means of convincing arguments and evidence.
+At a later point in the judgment the General Court observed: 232.
+So far as concerns the allegation relating to the lack of data capable of meeting the standard of economic proof demanded by the Commission, even if that were established, it does not mean that the burden of proof is eased, or even reversed, as the applicants seem to suggest.
+It must be observed that such a difficulty might be regarded as having resulted from the arguments developed by the applicants during the administrative procedure. 233.
+Thus, inasmuch as it is not possible to establish precisely the extent of the advantages that can be deemed to justify some financial compensation from merchants for the costs incurred by issuing banks, it is reasonable to conclude that it was for the applicants in order to prove that the MIF satisfied the first condition laid down in [article 101(3), TFEU] to identify the services provided by the banks issuing debit, charge or credit cards capable of constituting objective advantages for merchants.
+It was also for them to establish that there was a sufficiently clear correlation between the costs involved in the provision of those services and the level of the MIF.
+As regards the last point, it must be noted that those costs cannot be determined without taking into account other revenues obtained by issuing banks on the provision of those services or by including costs which are not directly linked to them.
+This is entirely consistent with and supports our view that, in identifying what evidence may be required to discharge the burden on an undertaking claiming exemption under article 101(3), the Commission and the EU courts are not adjusting the standard of proof.
+The decision of the General Court in Mastercard GC was upheld by the Court of Justice in Mastercard CJ.
+Before the Court of Justice, a plea contending that the General Court had failed to apply the correct standard of proof, ie the balance of probabilities, was held inadmissible. (See Advocate General Mengozzi at paras 136 149, Mastercard CJ at paras 209 219.)
+It is noteworthy that both the General Court and the Court of Justice placed reliance on the authority of GlaxoSmithKline.
+The Court of Justice stated: 235.
+Next, the court notes that the examination of an agreement for the purposes of determining whether it contributes to the improvement of the production or distribution of goods or to the promotion of technical or economic progress, and whether that agreement generates appreciable objective advantages, must be undertaken in the light of the factual arguments and evidence provided by the undertakings (see to that effect, in connection with a request for exemption under article 81(3) EC, judgment in GlaxoSmithKline Services Unlimited v Commission of the European Communities (C 501/06 P, C 513/06 P, C 515/06 P and C 519/06 P) EU:C:2009:610, para 102). 236.
+Such an examination may require the nature and specific features of the sector concerned by the agreement in question to be taken into account if its nature and those specific features are decisive for the outcome of the analysis (see judgment in GlaxoSmithKline Services, EU:C:2009:610, para 103).
+In their written cases, Visa and Mastercard submit that there is no EU law that concerns the nature of the evidence required before national courts in order to satisfy the four conditions under article 101(3).
+In their submission, the EU has, by legislation, expressly deferred procedural autonomy to member states, not just in respect of the legal test for the standard of proof, but also in relation to the nature of evidence required to satisfy that domestic standard, subject only to the EU principles of equivalence and effectiveness.
+In our view, this submission is contradicted by authority and is simply wrong.
+While EU law has deferred to the law of member states in respect of the standard of proof under article 101(3), subject to the principles of equivalence and effectiveness, it clearly maintains its own requirements as to the type of evidence which may be capable of discharging the appropriate standard of proof.
+Moreover, those requirements cannot vary depending on whether EU competition law is being applied by EU courts or authorities or the courts or authorities of member states.
+As the Court of Appeal observed in the present case (at para 81), it is important to maintain a consistency of approach across member states as to the requirements of article 101(3).
+It should be noted, in this regard, that the Modernisation Regulation emphasises the importance of the effective and uniform application of competition law within the EU. (See recitals 1, 14, 17, 19, 21 and 22 and article 16.) In the same way, national courts are required by section 60(2) of the 1998 Act to ensure consistency in the application of article 101 with that of the General Court and the Court of Justice.
+In our view, EU law clearly requires an undertaking seeking exemption under article 101(3) to produce cogent empirical evidence in support of that claim.
+Visa submits that, while in some cases it may be difficult to prove that a causal link is real without specific empirical evidence and data, it will depend on the particular circumstances of the case.
+In the present case, Visa submits, a judge would be entitled to conclude that nothing more is required than the expert evidence of economists to prove that an issuing bank which receives a payment on each card transaction undertaken by its customers will probably invest more to encourage its customers to engage in a greater number of such card transactions than it would do if it did not receive any such payments.
+This submission, however, grossly underestimates the complexity and subtlety of the balancing exercise required under article 101(3).
+In particular, as the AAM parties point out, an assessment of any benefits accruing to consumers and merchants from MIFs will depend on a range of factors including issuer pass through (the extent to which issuing banks decide to recycle MIF revenues into promotional behaviour) and always card transactions (the extent to which cardholders alter their behaviour in the light of any incentives provided).
+Thus, in the present case the Court of Appeal correctly concluded (at para 88) that establishing the requisite causal link involves two critical stages: first that the default MIFs in each case incentivise the issuers to take steps they would not otherwise have taken, and secondly that the steps taken did indeed increase card usage or increase the efficiencies of transactions which would have been card transactions anyway. (See also the judgment of Popplewell J at para 310 and the Visa exemption judgment of Phillips J at para 37.) Such factors must necessarily be taken into account in assessing whether appreciable objective advantages for consumers arise from the restriction in question so as to compensate for its competitive disadvantages.
+This process necessarily requires empirical evidence.
+A further demonstration of the need for empirical evidence is provided by the General Court in Mastercard GC (at para 233) where it calls, inter alia, for a comparison between the cost of providing services from which merchants are said to benefit as a result of the MIF and the level of the MIF itself: Thus, inasmuch as it is not possible to establish precisely the extent of the advantages that can be deemed to justify some financial compensation from merchants for the costs incurred by issuing banks, it is reasonable to conclude that it was for the applicants in order to prove that the MIF satisfied the first condition laid down in [article 101(3)] to identify the services provided by the banks issuing debit, charge or credit cards capable of constituting objective advantages for merchants.
+It was also for them to establish that there was a sufficiently clear correlation between the costs involved in the provision of those services and the level of the MIF.
+As regards the last point, it must be noted that those costs cannot be determined without taking into account other revenues obtained by issuing banks on the provision of those services or by including costs which are not directly linked to them.
+Visa complains that the approach adopted by the Court of Appeal in this case is inconsistent with the object and purpose of the relevant legislation in that article 101 and the Chapter I prohibition under the 1998 Act apply to agreements between undertakings, or decisions of associations of undertakings, from the date that they are made and before they have been implemented and had any effect at all.
+As a result, it is submitted, the prohibition applies before empirical, real world evidence of the type demanded by the Court of Appeal can be available.
+Undertakings, it is said, must be able to make a realistic assessment, at the time of making their agreement, as to whether article 101(3) is satisfied or not and that can only be done with the best evidence that is reasonably available at the time.
+In our view, there is nothing in the Court of Appeals approach which is inconsistent with the object and purpose of the legislation.
+Indeed, the answers advanced by the AAM parties are, in our view, compelling.
+First, the Guidelines state (at para 58) that, in cases where an agreement has yet to be fully implemented, the parties must substantiate any projections as to the date from which the efficiencies will become operational so as to have a significant positive impact in the market. (See also the General Court in GlaxoSmithKline at para 249.) Secondly, it is not the case that where, as in the present case, there is experience of restrictive measures over many years, the courts must disregard the evidence then available to them in assessing the issue of exemption.
+Thus, in Krka Tovarna Zdravil d d v European Commission (Case T 684/14) [2019] 4 CMLR 14, the General Court (Ninth Chamber) observed (at para 360), with regard to the assessment of distortion of competition under article 101(1) by comparison with the situation which would have existed but for the agreement: It appears paradoxical where the clauses of an agreement have been implemented and their impact on competition can be measured by taking into account the relevant factual developments, including those subsequent to the conclusion of the agreement, which took place before the Commission issued its decision to allow the Commission to demonstrate merely the anticompetitive effects that such clauses are likely to have and, to that end, to make the comparison without taking those developments into account.
+Finally, in this regard, it is necessary to say something about the reliance placed by Visa and Mastercard on the merchant indifference test (MIT).
+The MIT, which is also known as the tourist test, is an economic methodology developed by Professors Rochet and Tirole, initially in a paper published in 2008.
+It embodies the notion that there is a level of MIF which, when included in the MSCs paid by merchants, equalises the cost to merchants of accepting a scheme card with the cost of their accepting other methods of payment such as cash.
+If the MIT is set at that level, a merchant would be indifferent as to whether a one off customer (such as a tourist) chooses to pay with cash or card, so long as he does not choose to shop elsewhere.
+If, however, it is set at a higher level, while a merchant could in principle be better off by refusing to accept scheme cards because other forms of payment would be cheaper, in reality, if he did so, he would probably lose sales to rivals who did accept them (the business stealing effect).
+There are must take cards that merchants cannot turn down.
+The MIT seeks to put an upper limit on MIFs so that the schemes are not able to exploit their market power over merchants in this way (Rochet and Tirole, Must Take Cards: Merchant Discounts and Avoided Costs, (2011) Journal of the European Economic Association 9(3): 462 at 463).
+Visa and Mastercard rely on the MIT in two ways.
+First, they submit that in the EU Interchange Fee Regulation 2015 (Regulation (EU) 2015/751 of the European Parliament and of the Council on Interchange Fees for Card based Payment Transactions (OJ 2015 L123, p 1)) (the IFR) the EU legislature has endorsed the MIT test as meeting the requirements of article 101(3).
+This is not correct.
+While the Commission and the European Parliament accepted the MIT for the purpose of setting a cap under the Regulation, the Commission has consistently maintained that adoption of the MIT alone will not lead to automatic exemption.
+This is reflected in recital 10 of the IFR: In addition to a consistent application of the competition rules to interchange fees, regulating such fees would improve the functioning of the internal market and contribute to reducing transaction costs for consumers. and in recital 14: The application of this Regulation should be without prejudice to the application of Union and national competition rules.
+It should not prevent member states from maintaining or introducing lower caps or measures of equivalent object or effect through national legislation.
+In enacting the IFR, the Commission and the European Parliament were concerned with regulation and were not specifically addressing issues of EU competition law.
+Secondly, Visa and Mastercard submit that the Commission has repeatedly taken into account a variety of forms of available evidence, including economic theory and in particular the MIT, when examining MIFs.
+In this regard, they rely in particular on a number of commitment decisions made under article 9 of the Modernisation Regulation.
+It is undoubtedly correct that the Commission has in these decisions had regard to the MIT as a proxy or a benchmark.
+However, it is important to bear in mind that these decisions are not instances of the application of article 101(3) but pragmatic means employed by the Commission to compromise outstanding investigations in return for commitments.
+As Mr Khan explained on behalf of the Commission, whereas an infringement decision adopted pursuant to article 7 of the Modernisation Regulation would have to include an assessment of any claim by the addressee that the agreement in issue qualified for an article 101(3) exemption, a commitment decision pursuant to article 9 does not include such an assessment.
+The essence of a commitment decision is that the Commission does not take a position on the existence of an infringement of article 101(1) TFEU, the approach being based on procedural economy.
+Moreover, the Commission has made clear that a MIF which satisfies the MIT will not automatically be considered compliant with what is now article 101(3).
+Thus, in its Memorandum of 1 April 2009 (Memo/09/143), at the time of accepting undertakings from Mastercard, it accepted that the MIT provides a reasonable benchmark for assessing a MIF level that generates benefits to merchants and final consumers.
+However, it went on to point out that the general applicability of the test for the purposes of what is now article 101(3) depends on the specifics of the markets at hand.
+Having listed some cautionary examples, it emphasised that where a MIF is restrictive, the parties to the agreement must demonstrate that the conditions under article 101(3) are met.
+It continued: In this respect, there is a need to ascertain that the concrete model underlying a MIF is based on realistic assumptions, that the model is plausibly implemented through an objectively verifiable methodology and that the MIF indeed yields the objective efficiencies on the market which are claimed by the parties.
+The methodology underlying a MIF should be transparent to the final users of a scheme.
+However, if a card scheme wishes to pre determine the fees merchants pay through a MIF, it must be aware that the burden of proof to demonstrate the fulfilment of the four conditions under [article 101(3)] lies upon the scheme and its members. (at pp 6 7)
+There is a further and more fundamental reason why the MIT does not assist Visa and Mastercard on the present issue.
+It is not designed as a substitute for the balancing test as a means of establishing efficiencies and benefits under article 101(3).
+It is, rather, designed to meet the specific concern that merchants may be vulnerable because they are typically in a poor position to resist consumers who want them to accept cards in exchange for goods or services.
+As a result, the MIT seeks to ensure that the collective interchange fees do not rise above a level at which payment by card is more expensive for merchants than other methods of payment.
+In a situation where a MIF satisfies the MIT and where the issuing bank recycles all of its MIF income to cardholders, there should be no net detriment to cardholders and merchants considered together.
+If, on the other hand, as in the present case, the issuer pass through is less than 100% (ie the issuer retains a part of the MIF), there is likely to be a net loss to cardholders and merchants considered together.
+A net benefit could still arise in these circumstances, however, if the MIF revenue passed to cardholders caused them to make greater use of their cards, so that merchants were relieved of a sufficiently large number of transactions using a more expensive form of payment, with the result that the loss to cardholders and merchants considered together from reduced issuer pass through was outweighed.
+Whether this in fact occurs will depend on the extent of issuer pass through, the extent of always card transactions and the difference in cost for merchants between accepting a scheme card and an alternative form of payment.
+As Mr Jon Turner QC put it on behalf of the AAM parties, the theory of the MIT does not even purport to avoid the need to address such issues, which would be essential if an appropriate balancing exercise under article 101(3) were to be carried out.
+These are highly relevant matters that can be brought into account only on the basis of empirical evidence.
+In the present case, the Commission intervened before the Court of Appeal and explained why Visa and Mastercard were wrong to suggest that the MIT had been treated by it as an appropriate basis for assessing the issue of exemption.
+We agree with the conclusion of the Court of Appeal (at para 109), accepting the submissions of the Commission, that the Commission regards the MIT as a useful starting point but not as a substitute for the facts of the case.
+It is not a silver bullet for Visa and Mastercard.
+In order to obtain exemption, they still have to back up any reliance on the MIT as a benchmark with robust analysis and cogent empirical evidence.
+Conclusion on the standard of proof issue
+For these reasons we dismiss the appeal on issue (ii).
+Issue (iii) The fair share issue
+The third issue in the appeal is raised by Visa.
+It concerns the interpretation of article 101(3) TFEU, under which an agreement, decision or concerted practice which is restrictive of competition is exempted from the prohibition imposed by article 101(1) provided it satisfies certain conditions.
+The terms of article 101(3) have been set out at para 19 above.
+As described at para 107 above, four conditions must be met before an exemption can be granted.
+It is the second of those conditions which is here in issue, namely that consumers must receive a fair share of the benefits resulting from the restriction of competition.
+The context in which that condition has to be considered in the present case includes the fact, explained in paras 15 16 above, that the Visa and Mastercard schemes operate in a two sided market.
+On one side of the market, issuers compete with each other for the business of customers to whom they will issue cards (the issuing market).
+The cardholders are the consumers in the issuing market.
+On the other side of the market, acquirers compete with each other for the business of merchants to whom they seek to offer acquiring services (the acquiring market).
+Merchants are the consumers in the acquiring market.
+As has been explained, MIFs restrict competition in the acquiring market.
+They do not restrict competition in the issuing market.
+The judgments at first instance
+At first instance, Phillips J concluded in the Visa restriction judgment (wrongly, as we have held) that the MIFs did not infringe article 101(1), but went on in the Visa exemption judgment to consider whether, if that was incorrect, the MIFs would have qualified for exemption under article 101(3).
+He concluded that they would not.
+That was because, in his opinion, they did not meet the first condition for exemption under article 101(3): it had not been proved that they produced any benefits.
+He nonetheless went on to consider the second condition at paras 53 64 of the Visa exemption judgment.
+He accepted Visas argument, based on its analysis of the judgment in Mastercard CJ, particularly at paras 240 243 and 247, that for the purpose of deciding whether consumers received a fair share of the resulting benefits, it was necessary in the context of a two sided market to consider the position of consumers in both markets as a whole.
+Benefits accruing to cardholders as a result of MIFs could therefore be taken into account in determining whether the benefits at least equalled the disadvantages.
+He considered that there must, however, be at least some objective advantages for merchants, even if they were less than the burden they suffered.
+On that interpretation, the second condition could be satisfied even if merchants were worse off as a result of MIFs, provided they received some objective advantages, and the benefits to cardholders and merchants, considered in aggregate, outweighed the disadvantages.
+However, given his finding that no benefits were generated by MIFs, it followed that that requirement was not met.
+Phillips Js analysis differed in important respects from that adopted by Popplewell J in the AAM proceedings.
+Like Phillips J, he considered that the MIFs were not prohibited by article 101(1), but went on to consider whether, if that was incorrect, they would qualify for exemption under article 101(3).
+He concluded that they would, applying what we have held to be an incorrect approach to the standard of proof.
+In relation to the first condition, he accepted at para 278 that, in a two sided market such as the Mastercard scheme, the relevant consumers included cardholders as well as merchants, and that the relevant benefits were not, therefore, confined to those arising on the acquiring market.
+When it came to the second condition, however, since merchants were the consumers who were adversely affected by the restriction of competition caused by MIFs, he concluded at paras 280 287 that the fair share requirement would not be met unless, as a minimum, they obtained benefits from MIFs which matched the anti competitive disadvantages which MIFs imposed on them.
+In addition, he considered that the MIFs must not generate unduly high profits for issuers: para 287.
+On the facts, he concluded at para 409 that those requirements were met, again applying a standard of proof which we have held to be mistaken.
+In the CAT proceedings, it was found on the evidence that Mastercards MIFs infringed article 101(1) and did not result in any benefits.
+Accordingly, the first condition under article 101(3) was not met, and the question whether consumers received a fair share of any benefits did not arise.
+The judgment of the Court of Appeal
+Before the Court of Appeal, Sainsburys challenged Phillips Js interpretation of the second condition, while Visa maintained that it was correct.
+Popplewell Js analysis was not challenged.
+The court carefully considered the relevant sections of Mastercard GC and Mastercard CJ at paras 96 104 of its judgment.
+It interpreted paras 240 243 and 247 of Mastercard CJ, in particular, as meaning that in applying both the first and the second conditions in a situation where the restriction affects two markets, if the restriction causes disadvantages overall to the consumers in the market under consideration (here the merchants in the acquiring market), those disadvantages cannot be compensated by advantages to consumers in the other market (here the cardholders in the issuing market), unless the two groups of consumers are substantially the same; which is not the position in this case.
+In the Court of Appeals view, the consumers in the relevant market, here the merchants, would only receive a fair share of the benefits if the advantages to them caused by the restriction outweighed the disadvantages, so that they were no worse off.
+The Court of Appeal therefore concluded that Popplewell Js analysis of the law was correct, and Phillips Js was wrong.
+The parties arguments on the present appeal
+In its appeal to this court, Visa challenges the decision of the Court of Appeal and argues that Phillips Js analysis of the second condition was correct.
+As will be explained in greater detail, it maintains, in particular, that the issue was considered and decided, in the manner for which it contends, in Mastercard CJ, particularly at paras 241 and 247.
+All parties agree that the question as to how the second condition should be applied in the context of two sided markets is a question of EU law, which has to be answered by considering the relevant jurisprudence of the CJEU.
+The Mastercard Commission Decision
+It is best to begin by considering the Mastercard Commission Decision, which was the subject matter of the judgments of the General Court and the Court of Justice in Mastercard GC and Mastercard CJ respectively.
+The Commission concluded at recital 733 that the Mastercard MIFs did not meet the first condition of article 81(3) of the EC Treaty (now article 101(3) TFEU).
+When it went on to consider the second condition, it stated at recitals 740 to 742: 740.
+There is no reason to assume from the outset that an interchange fee paid by acquirers to issuers increases the utility of the payment card system to [both] groups of consumers alike.
+The Commission does not dispute that merchants may benefit through enhanced network effects from the issuing side, but this does not necessarily offset their losses which result from paying inflated merchant fees.
+In setting a MIF the member banks of a card scheme must guarantee a fair share of the benefits to [all] customers, not only to those that are on the side of the scheme which receives the MIF.
+In a scheme where the MIF is paid by the acquirer to the issuer, the efficiencies must in particular counterbalance the restrictive effects to the detriment of merchants (and subsequent purchasers).
+MasterCard has not submitted evidence in this respect. 741.
+The Commission has therefore reviewed the methodologies which MasterCard uses as starting point for setting the level of the Intra EEA fallback interchange fees.
+It can be left open in this case whether cardholders sufficiently benefit from MasterCards MIF.
+The Commissions concerns under the second condition of article 81(3) of the Treaty in this decision relate to the customer group which bears the cost of the MIF, that is the merchants. 742.
+While merchants may benefit through enhanced network effects from the issuing side, this does not necessarily offset their losses which result from paying inflated merchant fees. (Emphasis added) The Commission concluded at recital 743 that without further evidence which Mastercard failed to submit it cannot safely be assumed that Mastercard is creating objective efficiencies that benefit all customers, including those that bear the cost of its MIF (merchants and subsequent purchasers) (emphasis in original).
+It is apparent from the foregoing, and perhaps especially from the passages which we have italicised in recitals 740 and 742, that the Commission proceeded on the basis that, in order for the second condition to be satisfied, it was necessary that the consumers who suffered the losses resulting from the restrictive agreement that is to say, the merchants must have those losses offset or counterbalanced by benefits enjoyed by themselves.
+The Guidelines
+That approach was consistent with the Guidelines.
+Under the heading of General principles, they state at para 43: [T]he condition that consumers (55) must receive a fair share of the benefits implies in general that efficiencies generated by the restrictive agreement within a relevant market must be sufficient to outweigh the anti competitive effects produced by the agreement within that same relevant market (56).
+Negative effects on consumers in one geographic market or product market cannot normally be balanced against and compensated by positive effects for consumers in another unrelated geographic market or product market.
+However, where two markets are related, efficiencies achieved on separate markets can be taken into account provided that the group of consumers affected by the restriction and benefiting from the efficiency gains are substantially the same (57). (Emphasis added) That analysis also underpins the discussion of the second condition in paras 85 86 of the Guidelines.
+The case law on which para 43 is based is cited in the footnotes.
+Footnote 56 refers to the judgment of the Court of First Instance in Shaw v Commission of the European Communities (Case T 131/99) [2002] ECR II 2023, para 163, where the court observed that the assessment of countervailing benefits under article 81(3) EC had to be made within the same analytical framework as that used for assessing the restrictive effects.
+Footnote 57 refers to the judgment of the Court of First Instance in Compagnie Gnrale Maritime v Commission of the European Communities (Case T 86/95) [2002] ECR II 1011.
+The case concerned a price fixing agreement relating to inland transport services provided to shippers by maritime carriers as part of intermodal transport.
+The alleged benefits relied on by the parties to the agreement related to maritime transport services provided to shippers by the same companies.
+The court stated at para 343: For the purposes of examining the merits of the Commissions findings as to the various requirements of article 85(3) of the [EEC] Treaty and article 5 of Regulation 1017/68 [which applied competition rules to the transport sector], regard should naturally be had to the advantages arising from the agreement in question, not only for the relevant market, namely that for inland transport services provided as part of intermodal transport, but also, in appropriate cases, for every other market on which the agreement in question might have beneficial effects, and even, in a more general sense, for any service the quality or efficiency of which might be improved by the existence of that agreement.
+Both article 5 of Regulation 1017/68 and article 85(3) of the Treaty envisage exemption in favour of, amongst others, agreements which contribute to promoting technical or economic progress, without requiring a specific link with the relevant market.
+That passage is expressed in wide terms.
+However, the last sentence is plainly concerned with the first condition of article 85(3) EEC (equivalent to article 81(3) EC and article 101(3) TFEU), and the passage as a whole responds to a criticism of the Commissions approach to the first condition: see para 305 of the judgment.
+In addition, on the facts of the case, the consumers in both markets were substantially the same.
+In those circumstances, it would be unsurprising if the benefits accruing to the same consumers in both markets were aggregated for the purpose of assessing compliance with article 85(3).
+The Court of First Instance subsequently made a similar observation in GlaxoSmithKline at para 248, again in the context of a challenge to the Commissions application of the first condition.
+The Guidelines are not legally authoritative, but they form an important element of the decentralised system for the enforcement of competition law established by the Modernisation Regulation.
+National authorities and courts are expected to take due account of them in accordance with their duty of sincere cooperation: see the Opinion of Advocate General Kokott in Expedia Inc v Autorit de la concurrence (Case C 226/11) EU:C:2012:544, points 37 38.
+Mastercard GC
+When the Mastercard Commission Decision was challenged before the General Court, it was argued, in relation to the first condition in article 81(3) EC, that the Commission had failed to take into account the positive effects of the MIFs on the issuing market.
+In response, the General Court stated at paras 228 229: 228. [I]t is indeed settled case law that the appreciable objective advantages to which the first condition of article 81(3) EC relates may arise not only for the relevant market but also for every other market on which the agreement in question might have beneficial effects, and even, in a more general sense, for any service the quality or efficiency of which might be improved by the existence of that agreement (Compagnie Gnrale Maritime v Commission of the European Communities (T 86/95) [2002] ECR II 1011 at para 343, and GlaxoSmithKlineServices (T 168/01) [2006] ECR II 2969 at para 248).
+However, as merchants constitute one of the two groups of users affected by payment cards, the very existence of the second condition of article 81(3) EC necessarily means that the existence of appreciable objective advantages attributable to the MIF must also be established in regard to them. 229.
+Therefore, in the absence of such proof, the applicants criticism that insufficient account was taken of the advantages of the MIF for cardholders is, in all events, ineffective.
+It appears from the last sentence of para 228 that the General Court considered that it was essential, in order to satisfy the second condition of article 81(3), to prove that merchants benefited from appreciable objective advantages which were attributable specifically to the MIFs.
+The court seemingly inferred that the advantages with which the first condition was concerned must, therefore, include appreciable objective advantages for merchants.
+In the absence of proof of such advantages, the criticism that the Commission had taken insufficient account of the advantages for cardholders went nowhere, as the court indicated at para 229.
+The General Court went on to state at para 233 that it was for the applicants (Mastercard and other financial institutions), in order to prove that the MIF satisfied the first condition, to identify the services which were capable of constituting objective advantages for merchants, and that there was a clear correlation between the costs involved in the provision of those services and the level of the MIF.
+Since that had not been done, it followed that the challenge to the Commissions reasoning in relation to the first condition must be rejected: para 236.
+Since the first condition was not satisfied, there was no need to examine the other aspects of the Commissions analysis: ibid.
+Mastercard CJ
+On further appeal to the Court of Justice, it was argued that the General Court had erred in focusing on the benefits to merchants, despite recognising in para 228 that advantages could be taken into account for any market that benefited from the existence of the agreement in question.
+The General Court had thus wrongly ignored, it was argued, the significant advantages which the Mastercard system and the MIF were said to bring about for cardholders.
+That argument, so far as it bore on the second condition, was considered in the Opinion of Advocate General Mengozzi.
+He identified the question of law arising from the argument in relation to the second condition: AG154.
+The point of law underlying that complaint is therefore whether, in order for the exemption provided for in article 81(3) EC to be applicable in such a context, it is necessary that the fair share of the profit resulting from the advantages arising from the agreement, as provided for in article 81(3) EC, be reserved for the direct consumers of the services provided on the market on which the restrictive effects for competition are produced in this case, in particular, merchants or whether it can be considered that the restrictive effects harming those consumers may be compensated by the advantages produced for consumers of the services provided on a related market, namely, in this case, cardholders.
+The Advocate Generals answer to that question was that the restrictive effects harming merchants could not be compensated by the advantages produced for cardholders: in order to satisfy the second condition, merchants themselves must receive a fair share of the benefits resulting from the restrictive agreement.
+He began his reasoning on this point by making some general points about the second condition: AG155.
+It should be borne in mind, as a preliminary point, that the second condition in article 81(3) EC requires that, in order for a restrictive agreement to benefit from the exemption provided for in that provision, consumers must be allowed a fair share of the resulting benefits. AG156.
+In that regard, it should be observed, first, that the consumers referred to in that provision must be considered to be the direct or indirect consumers of the goods or services covered by the agreement.
+Secondly, it is apparent from consistent case law that, in order for an agreement restrictive of competition to be capable of being exempted under article 81(3) EC, the appreciable objective advantages created by that agreement must be of such a character as to compensate for the disadvantages which they cause for competition.
+It may be inferred from that case law that, in order for a restrictive agreement to be able to benefit from the exemption, the advantages resulting from that agreement must ensure that consumers are compensated in full for the actual or probable adverse effects that they must bear owing to the restriction of competition resulting from the agreement.
+In other words, the benefits arising from the restrictive agreement must counterbalance its negative effects. (Emphasis added)
+It followed from the points which we have italicised that, in order for the second condition to be satisfied, the disadvantages suffered by consumers in the market where competition was restricted must be counterbalanced by advantages benefiting the same consumers, as the Advocate General went on to explain: AG157.
+To my mind, however, that compensation must apply to consumers who are directly or indirectly affected by the agreement.
+It is the consumers that suffer the harm caused by the restrictive effects of the agreement at issue that must, in principle, be allowed, as compensation for that harm, the fair share of the benefit resulting from the agreement referred to in article 81(3) EC.
+Furthermore, as the Advocate General explained, the contrary view would result in competition authorities favouring one category of consumers at the expense of others, something which was no part of the function of competition law: AG158.
+In fact, if it were possible to take into consideration the advantages resulting from an agreement for one category of consumers of certain services in order to counterbalance the negative effects on another category of consumers of other services on a different market, that would amount to allowing the former category of consumers to be favoured to the detriment of the latter category.
+However, distributive logic of that type seem[s] to me, in principle, to have no connection with the practical scope of competition law.
+Competition law is intended to protect the structure of the market, and thus competition, in the interest of competitors and, ultimately, consumers in general.
+Conversely, it is not intended to favour one category of consumers to the detriment of a different category. (Emphasis in original)
+In its judgment, the Court of Justice noted at para 208 that the General Court had rejected the submission that the Commission had erred in applying the first condition of article 81(3) EC, rendering further analysis unnecessary.
+The Court of Justice then focused in its own judgment on the first condition rather than the second.
+It characterised the challenge to the reasoning of the General Court at para 228 as raising in essence the question as to which markets may be regarded as generating the objective advantages that may be taken into account for the purposes of the analysis of the first condition.
+In the course of its discussion of whether the first condition was met, the court explained at para 234 that the improvement, within the meaning of the first condition laid down in article 81(3) EC must in particular display appreciable objective advantages of such a character as to compensate for the disadvantages which that agreement entails for competition.
+It added at para 237 that, in the case of a two sided system such as the Mastercard scheme, in order to assess whether the first condition was met, it was necessary to take into account, where appropriate, all the objective advantages flowing from the restrictive measure in both markets, and to assess whether the advantages were of such a character as to compensate for the disadvantages which the measure entailed for competition.
+The court then stated at paras 240 and 241: 240.
+In particular, as regards the argument that the General Court did not take into account the advantages flowing from the MIF for cardholders, it must be held that the General Court was, in principle, required, when examining the first condition laid down in article 81(3) EC, to take into account all the objective advantages flowing from the MIF, not only on the relevant market, namely the acquiring market, but also on the separate but connected issuing market. 241.
+It follows from this that, should the General Court have found that there were appreciable objective advantages flowing from the MIF for merchants, even if those advantages did not in themselves prove sufficient to compensate for the restrictive effects identified pursuant to article 81(1) EC, all the advantages on both consumer markets in the MasterCard scheme, including therefore on the cardholders market, could, if necessary, have justified the MIF if, taken together, those advantages were of such a character as to compensate for the restrictive effects of those fees.
+In the present appeal, Visa relies on para 241, which it describes as crucial to its argument.
+That paragraph is, however, concerned with the first condition of article 81(3), not the second.
+It is also qualified by the proviso contained in its final words: if, taken together, those advantages were of such a character as to compensate for the restrictive effect of those fees.
+That proviso was not satisfied in the case before the Court of Justice, as it explained in para 242: However, as is recalled in para 234 of the present judgment, examination of the first condition laid down in article 81(3) EC raises the question whether the advantages derived from the measure at issue are of such a character as to compensate for the disadvantages resulting therefrom.
+Thus, where, as in the present case, restrictive effects have been found on only one market of a two sided system, the advantages flowing from the restrictive measure on a separate but connected market also associated with that system cannot, in themselves, be of such a character as to compensate for the disadvantages resulting from that measure in the absence of any proof of the existence of appreciable objective advantages attributable to that measure in the relevant market, in particular, as is apparent from paras 21 and 168 to 180 of the judgment under appeal, where the consumers on those markets are not substantially the same. (Emphasis added)
+The passage which we have italicised makes it clear that in a situation where the disadvantages resulting from a restriction of competition are felt on only one side of a two sided market which is the position in this case then the advantages on the other market cannot be taken into account for the purposes of the first condition of article 81(3) EC (or article 101(3) TFEU), in the absence of particular circumstances justifying such a course (as where the consumers in both markets are substantially the same), unless it has been proved that the restrictive measure also causes appreciable objective advantages in the market where the restrictive effects are felt.
+Since no such advantages had been proved in the case before the court, it followed that the first condition was not satisfied.
+That was confirmed by the court in para 243: In the present case, and without any distortion having been claimed in that regard, the General Court concluded in para 226 of the judgment under appeal that there was no proof of the existence of objective advantages flowing from the MIF and enjoyed by merchants.
+In those circumstances, it was not necessary to examine the advantages flowing from the MIF for cardholders, since they cannot, by themselves, be of such a character as to compensate for the disadvantages resulting from those fees.
+The General Court was therefore fully entitled to find, in para 229 of the judgment under appeal, that the [appellants] criticism that insufficient account was taken of the advantages of the MIF for cardholders is, in all events, ineffective.
+The court went on to state in para 247, in the other passage relied on by Visa in the present appeal: As regards the appellants argument that the General Court did not explain why the first two conditions in article 81(3) EC could not be satisfied on the basis only of the advantages the MIF produce for cardholders, it is sufficient to refer to paras 240 to 245 of the present judgment.
+Visa submits that, in that paragraph, the court clarified that the analysis in paras 241 243 of its judgment, which had been expressed by reference to the first condition, also applied to the second.
+In our opinion, there is no warrant for that interpretation of para 247.
+The court had previously explained in paras 240 245 why the challenge to the General Courts conclusion in respect of the first condition was rejected.
+The court had not said anything about the second condition.
+The way in which the fair share requirement should be applied in a situation where the restrictive effects were felt on only one side of a two sided market had not received any consideration.
+All that the court said in substance, in para 247, was that it had already explained, in its discussion of the first condition, why the first two conditions could not be satisfied on the basis only of the advantages which the MIF produced for cardholders.
+As the court had already noted at para 208, where it cited para 236 of the judgment of the General Court, where the first condition was not satisfied, there was no need to examine the other aspects of article 81(3).
+If Visas argument were correct, the Court of Justice would effectively have treated the first and second conditions of article 81(3) as interchangeable: both could be satisfied by the same aggregation of the benefits on both sides of a two sided market, and the second condition would add nothing to the first.
+They are, however, essentially different.
+The second condition adds a distinct requirement of fairness to the considerations of economic efficiency with which the first condition is primarily concerned.
+Consideration of aggregate efficiency gains across different markets may well be relevant to the first condition, in situations where restrictive measures have effects in more than one market, but they cannot ordinarily be determinative of the question, under the second condition, whether a fair share of those gains has accrued to the consumers affected by the restriction of competition.
+Conclusions on the fair share issue
+It follows that the Court of Appeal arrived at the correct decision on this point, albeit by reasoning which was not precisely the same as that set out above.
+We therefore dismiss the appeal on issue (iii).
+Having reached that clear conclusion, it is unnecessary, and would be inappropriate, for this court to make a reference to the CJEU merely for the purpose of obtaining its clarification of the effect of the second condition in article 101(3) TFEU.
+It may, however, be helpful if, in addition to rejecting Visas argument, we provide some positive guidance, based upon our own understanding of the EU materials, while recognising that it lacks the authority accorded by EU law to a judgment of the CJEU.
+The second condition in article 101(3) arises only if the first condition is satisfied.
+In order to meet the requirements of the first condition, in a situation where there is a two sided market and the restrictive effects of the measure in question are experienced by consumers in only one of those markets, and where the consumers in both markets are not substantially the same, it has to be proved (1) that the measure causes appreciable objective advantages for consumers in the market where the restrictive effects are felt, and (2) that the objective advantages caused by the measure for consumers in both markets, taken together, compensate for the disadvantages which the measure entails for competition: see paras 240 242 of Mastercard CJ.
+If the first condition is satisfied, and the second condition then has to be considered, the best available guidance from the CJEU as to how it should be applied in the context of a two sided market is the Opinion of Advocate General Mengozzi in Mastercard CJ, the matter not having been considered by the Court of Justice in its judgment in that case, or by the General Court in Mastercard GC.
+The Advocate Generals reasoning in point 156 of his Opinion can be summarised in the following propositions: (1) The consumers referred to in the second condition are the direct or indirect consumers of the goods or services covered by the measure: here, the merchants. (2) Those consumers must be compensated in full for the adverse effects that they bear owing to the restriction of competition resulting from the measure.
+That reasoning is consistent with the Guidelines.
+It also reflects the language of the second condition.
+The merchants are the consumers of the services which are subject to the restriction of competition, and are therefore the consumers which the second condition is presumably intended to protect.
+If the merchants are not fully compensated for the harm inflicted on them by the restrictive measure, it is difficult to see how they can be said to receive a fair share of the resultant benefits.
+As the Advocate General indicated at point 158 of his Opinion, it is not the purpose of competition law to permit anti competitive practices to harm consumers in one market for the sake of providing benefits to those in another.
+Issue (iv) The broad axe issue
+This issue is concerned with the degree of precision that is required in the quantification of mitigation of loss where a defendant to a claim for damages arising out of a breach of competition law asserts that the claimant has mitigated its loss through the passing on of all or part of an overcharge to its customers.
+Mastercard raises this issue, which relates to a passage in the judgment of the Court of Appeal (para 331) in which the court rejected the submission that the broad axe principle of establishing recoverable loss applies to the burden on Mastercard to establish the fact and amount of pass on by Sainsburys (emphasis added).
+The court continued: The broad axe principle is applicable where the claimant has suffered loss as a result of the defendants culpable conduct but there is a lack of evidence as to the amount of such loss.
+There is no scope for the application of any such principle where the burden lies on the defendant to establish a pass on of the unlawful overcharge in order to reduce the amount recoverable by the claimant.
+The broad axe issue which is said to arise out of this statement is: Did the Court of Appeal find, and if so, did it err in law in finding, that a defendant has to prove the exact amount of loss mitigated in order to reduce damages?.
+The Court of Appeals statement is part of its discussion of a ground of appeal based on the assertion that the CAT had been inconsistent in rejecting Mastercards case that the merchants had mitigated their loss by pass on while making an allowance, when awarding compound interest, for pass on, which it estimated at 50% of the claimed loss (paras 320 342).
+Mastercard has not renewed that submission in these appeals, but, as we explain below, the debate around this issue widened in the course of the hearing.
+The Court of Appeals statement, which is the subject matter of this issue, must not be read in isolation.
+In the following paragraph (para 332) the court stated: On the other hand, we accept Mr Hoskinss submission that in each case it is a matter for the judge to decide whether, on the evidence before her or him, the defendant can show that there is a sufficiently close causal connection between an overcharge and an increase in the direct purchasers price.
+We see no reason why that increase should not be established by a combination of empirical fact and economic opinion evidence.
+It is not appropriate for us on these appeals to be more specific as to the nature and type of evidence capable of satisfying a trial judge that there is a sufficiently close causal connection.
+It is therefore clear that the Court of Appeal was not excluding any form of evidence as relevant to the establishment of pass on, but was drawing a distinction between the degree of precision in quantification required of the defendant pleading pass on in mitigation of loss and that which was required of the victim of the wrong in establishing its claim.
+The questions which arise are whether there is a requirement in European law or otherwise a basis in principle for that distinction.
+Mastercards stance at the hearing before this court was that it has to prove that the merchants passed on some of the overcharge to their customers but that having done so, the quantification of the extent of the pass on did not have to be precise where such precision could not reasonably be achieved.
+The court, having regard to all of the evidence, could and should estimate the extent of the pass on in order to give adequate compensation to the claimant and avoid over compensation.
+Mastercard accepts that at the trial before the CAT of Sainsburys claim against it, which covered quantification as well as liability (see para 28 above), it had not succeeded in proving that the overcharge had caused Sainsburys to raise the prices which it charged its customers.
+The matter is closed in that dispute but it remains a live issue in relation to other claims.
+The scope of the issue expanded as a result of exchanges with the bench during the hearing of the appeal.
+On the invitation of the court, Mastercard and Visa made further written submissions on the burden of proof.
+They argue that the legal burden lies on the claimant to prove its loss in the form of lost profits, that no question of mitigation of loss arises, and that there is no burden on the defendants in relation to the quantification of the merchants claims resulting from the pass on of the overcharge.
+AAM and Sainsburys have lodged written submissions in reply.
+In addressing the issue and these submissions, we examine, first, the requirements of EU law in relation to the claims for damages which the merchants advance; secondly, (in order to determine whether there is a question of mitigation of loss) whether the merchants are entitled in law to use the overcharge which is included in the MSC as the prima facie measure of their losses; thirdly, the burden of proof in the assessment of the damages due to the claimants; and, fourthly, the question of the degree of precision required in establishing the likely extent of any pass on.
+The requirements of EU law
+The claims of the merchants in these appeals are for damages for loss caused to them by the tortious acts of the operators of the payment card schemes in breach of their statutory obligations under the 1998 Act.
+It is not in dispute, as we discuss below, that the fundamental principle underlying the merchants claims is that the damages to which they are entitled are compensatory; the merchants are entitled to be placed, so far as money can achieve that, in the position which they would have been in but for the tortious acts which have caused them loss.
+Most of the case law of the CJEU, to which both the CAT and the Court of Appeal have referred, concerns claims for restitution arising from illegally levied taxes and similar charges such as occurred in the classic case of Amministrazione delle Finanze dello Stato v San Giorgio SpA (Case 199/82) [1983] ECR 3595.
+In those cases, the CJEU recognised the right of the defendant to meet the claim for restitution with the defence of pass on so that the claimant would not be unjustly enriched.
+The CJEU analysed the defence as an exception to the principle that taxes incompatible with EU law must be reimbursed: Socit Comateb v Directeur Gnrale des Douanes et Droits Indirects (Joined Cases C 192/95 to C 218/95) [1997] ECR I 165; [1997] STC 1006, para 21.
+The CJEU has limited the scope of that defence; it requires that the defence be interpreted strictly because it operates as a restriction upon the EU right to repayment of the unlawfully levied taxes.
+There can be no presumption that the unlawful charges have been passed on.
+Whether there has been a pass on is a question of fact to be established on evidence adduced before the national court: Socit Comateb (above) para 25; Webers Wine World Handels GmbH v Abgabenberufungskommission Wien (Case C 147/01) [2005] All ER (EC) 224; [2003] ECR I 11365; [2004] 1 CMLR 7, paras 93 97.
+The direct pass on of a wrongly levied tax is the sole exception to the right of reimbursement: Lady & Kid A/S v Skatteministeriet (Case C 398/09) [2012] All ER (EC) 410; [2011] ECR I 7375; [2012] 1 CMLR 14, paras 20 and 26.
+In that case, the Court of Justice rejected an argument that the taxpayer would be unjustly enriched by repayment of an unlawful levy because the taxpayer would have benefited from the concomitant abolition of other levies charged on a different basis.
+The benefit of the saving arising from the abolition of the other levies could not be regarded as unjust enrichment in EU law and could not be set off against the burden of the unlawful levy: para 26.
+No challenge is or can be made in relation to those judgments.
+But these appeals are not concerned with the EU rules on the reimbursement of unlawfully levied charges.
+They are concerned with claims for damages for losses incurred as a result of breaches of competition law.
+It is necessary to consider what EU law requires in relation to such claims.
+The CJEU recognises that the ability of persons, who have suffered loss by the anti competitive practices of others, to obtain damages in the courts of member states by the application of the rules of national law makes an important contribution to the maintenance of effective competition in the EU: Courage Ltd v Crehan (Case C 453/99) [2002] QB 507, paras 26 27.
+In para 29 of that judgment the Court of Justice sets out the essential requirements which are to govern actions in national courts for damages for breach of EU competition law.
+It states: [I]n the absence of Community rules governing the matter, it is for the domestic legal system of each member state to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive directly from Community law, provided that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and that they do not render practically impossible or excessively difficult the exercise of law (principle of rights conferred by Community effectiveness): see Palmisani v Istituto Nazionale della Previdenza Sociale (Case C 261/95) [1997] ECR I 4025, 4046, para 27.
+In para 30 of its judgment, the Court of Justice confirmed that Community law does not prevent national courts from taking steps to ensure that the protection of rights guaranteed by EU law does not entail the unjust enrichment of those who enjoy them.
+It refers in support of this principle to, among others, Hans Just I/S v Danish Ministry for Fiscal Affairs (Case 68/79) [1980] ECR 501, 523, para 26.
+Hans Just is a case about the unlawful imposition of excise levies on imports, and in para 26 of that case the Court of Justice stated: There is nothing therefore, from the point of view of Community law, to prevent national courts from taking account in accordance with their national law of the fact that it has been possible for charges unduly levied to be incorporated in the prices of the undertaking liable for the charge and to be passed on to the purchasers.
+In our view the reference in Courage Ltd to that paragraph in the Hans Just judgment is a recognition of the possibility and relevance of pass on.
+It is not an oblique incorporation of any other rules concerning the right of a taxpayer to obtain restitution of taxes levied in breach of EU law, which is a claim with a different legal basis.
+In relation to claims under national law for damages for breach of the statutory rules of competition law, the requirements of EU law are that a member state can lay down procedural rules governing actions which safeguard such rights derived from EU law, provided that the rules comply with the principle of equivalence and the principle of effectiveness: Courage Ltd (above) paras 29 30.
+We are not concerned on these appeals with the principle of equivalence.
+The only constraint on national law at the relevant time therefore was the principle of effectiveness which requires that the rules of domestic law do not make it practically impossible or excessively difficult to exercise rights guaranteed by EU law.
+The court must therefore give effect to the rules of English law governing claims for damages for breach of statutory duty unless those rules were to conflict with the principle of effectiveness.
+It is therefore a question of fact in each case, which the national court must resolve on the evidence adduced before it, whether an overcharge resulting from a breach of competition law has caused the claimant to suffer loss or whether all or part of the overcharge has been passed on by the claimant to its customers or otherwise mitigated.
+The principle of effectiveness applies to the procedural and evidential rules by which the court determines whether and to what extent the claimant has suffered loss.
+On 9 March 2017, the United Kingdom implemented Parliament and Council Directive 2014/104/EU of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the member states and of the European Union (OJ 2014 L349, p 1) (the Damages Directive) by bringing into effect Schedule 8A to the 1998 Act (as inserted by Schedule 1 to the Claims in respect of Loss or Damage arising from Competition Infringements (Competition Act 1998 and Other Enactments (Amendment)) Regulations 2017 (SI 2017/385)), which in paragraph 11(2) imposes on the defendant the burden of proving that the claimant has passed on an overcharge resulting from an infringement of competition law, and the extent to which the claimant did so.
+But we are not concerned with this provision because the substantive provisions of the Damages Directive are not retrospective and the other provisions do not apply to cases of which a court was seised before 26 December 2014: article 22.
+The merchants in these appeals each issued their claims before that date.
+The Damages Directive does not govern these claims.
+Nonetheless, the Damages Directive casts some light on the pre existing requirements of EU law, as recital 12 states that it reaffirms the acquis communautaire as to the right to compensation for harm caused by breach of EU competition law.
+We return to this when we discuss the degree of precision required of the defendant.
+Further, the Damages Directive has taken EU competition law in a radically different direction from the federal law of the United States in its approach to pass on.
+It leaves it to the English courts to apply the normal rules of English law on mitigation of damages, including the effect of pass on.
+The nature of the claims
+The merchants claims are for the added costs which they have incurred as a result of the MSC, which the acquiring banks have charged them, being larger than it would have been if there had been no breach of competition law.
+Sainsburys claims damages measured by the difference between the sums which it paid the acquirers through the MSC and the sums which it would have paid if the acquirers market had not been distorted by the MIF.
+Similarly, AAMs principal pleaded case is that they are entitled to recover the basic amounts by which they have been unlawfully overcharged with an alternative case that in so far as the unlawful overcharges have been passed on in their selling prices to their customers, they have suffered a loss of profit on the sales of the goods concerned through a reduced volume of sales.
+In each case the merchants primary claim of damages is for the pecuniary loss which has resulted directly from the breach of competition law by the operators of the schemes.
+That direct loss is prima facie measured by the extent of the overcharge in the MSC.
+It is trite law that, as a general principle, the damages to be awarded for loss caused by tort are compensatory.
+The claimant is entitled to be placed in the position it would have been in if the tort had not been committed.
+A classic statement of this principle is that of Lord Blackburn in Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39; (1880) 7 R (HL) 1, 7: I do not think there is any difference of opinion as to its being a general rule that, where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.
+See also Watson, Laidlaw, & Co Ltd v Pott, Cassels & Williamson 1914 SC (HL) 18, 29 per Lord Shaw of Dunfermline, who spoke of the principle of restoration; One Step (Support) Ltd v Morris Garner [2018] UKSC 20; [2019] AC 649, paras 25 27 per Lord Reed.
+In the United States, concerns about the complexity, uncertainty and cost of calculating the existence and effects of pass on in federal anti trust litigation have caused the US Supreme Court to exclude a defence of pass on under federal law and to allow the claimant to use the amount of the overcharge as the basis of its claim in a treble damage suit: Hanover Shoe Inc v United Shoe Machinery Corpn 392 US 481 (1968), 491 494 per White J.
+By contrast, in the United Kingdom there is, as is well known, no entitlement to treble damages.
+Nor is there any exclusion of pass on as an element in the calculation of damages and the normal rule of compensatory damages applies to claims for damages for breach of statutory duty: Devenish Nutrition Ltd v Sanofi Aventis SA [2008] EWCA Civ 1086; [2009] Ch 390, 477, para 147 per Longmore LJ, pp 478 479, para 151 per Tuckey LJ; Emerald Supplies Ltd v British Airways plc [2009] EWHC 741 (Ch); [2010] Ch 48, paras 36 and 37 per Sir Andrew Morritt C; W H Newson Holding Ltd v IMI plc [2013] EWCA Civ 1377; [2014] Bus LR 156, para 40 per Arden LJ.
+In this respect, English law and Scots law are consistent with EU law which now requires member states to ensure that there is a pass on defence: articles 12(2) and 13 and recital 39 of the Damages Directive.
+In the legal systems of the United Kingdom pass on is an element in the quantification of damages rather than a defence in a strict sense.
+But so long as the UKs competition rules remain aligned to those of the EU, the pass on of an overcharge remains a relevant factor in the assessment of damages.
+There are sound reasons for taking account of pass on in the calculation of damages for breach of competition law.
+Not only is it required by the compensatory principle but also there are cases where there is a need to avoid double recovery through claims in respect of the same overcharge by a direct purchaser and by subsequent purchasers in a chain, to whom an overcharge has been passed on in whole or in part.
+The question then arises as to whether the merchants are entitled to claim as the prima facie measure of their loss the overcharge in the MSC which results from the MIF.
+The merchants say that they are so entitled because they have had to pay out more than they would have but for the anti competitive practices of the schemes and so have suffered pecuniary loss.
+On the other hand, Visa in its supplementary written submissions submits that their claims are for pure economic loss and must be claims for the loss of the profit which they would have enjoyed but for the alleged wrongful act of the defendants.
+We are satisfied that the merchants are correct in their submissions that they are entitled to plead as the prima facie measure of their loss the pecuniary loss measured by the overcharge in the MSC and that they do not have to plead and prove a consequential loss of profit.
+There are many circumstances, which are not confined to damage to property, in which the law allows the recovery of damages without regard to the claimants profitability.
+If a claimant suffers damage to property, such as a vehicle or a ship, as a result of the tortious actions of a defendant, it can claim as damages the diminution in value of the damaged property, usually measured by the cost of repairing the property, and consequential loss, such as the loss of use of the property while it was being repaired, without having to show that that expenditure diminished its overall profitability.
+See, for example, Coles v Hetherton [2013] EWCA Civ 1704; [2015] 1 WLR 160; The London Corpn [1935] P 70; The World Beauty [1970] P 144.
+In a claim for contractual damages resulting from the failure of a supplier to deliver goods to a purchaser, the prima facie measure of damages is the difference between the market value of those goods and the contract price which the purchaser would have had to pay: Garnac Grain Co Inc v H M F Faure & Fairclough Ltd [1968] AC 1130, 1140 per Lord Pearson.
+Where charterers of a vessel redelivered the vessel two years before the contractual date on which the charterparty ended, the court accepted the owners claim for loss of profits from that charterparty during the remaining two years of the charterparty without having regard to the overall profitability of the claimant: Fulton Shipping Inc of Panama v Globalia Business Travel SAU (formerly Travelplan SAU) of Spain [2017] UKSC 43; [2017] 1 WLR 2581.
+The effect of the breach on the overall profitability of the claimant in each case was not the relevant measure of damages.
+Similarly, if a claimant incurs expenditure in replacing items which a supplier had failed to deliver, it is entitled to damages without having to show that the breach of contract adversely affected its overall profitability.
+An illustration of this is the judgment of Leggatt J in Thai Airways International Public Co Ltd v KI Holdings Co Ltd [2015] EWHC 1250 (Comm); [2016] 1 All ER (Comm) 675.
+The case concerned a claim for damages resulting from the defendants (Koitos) breach of contract through the late delivery and failure to deliver aircraft seats to Thai Airways for use in new aircraft which they had purchased.
+Thai Airways, facing a shortage of aircraft to perform its planned services, leased three aircraft on short term operating leases to cover the gap in capacity and ordered replacement seats for its new aircraft from another supplier.
+It claimed as damages the costs which it incurred in mitigating its loss and its principal claim was for the cost of leasing the replacement aircraft.
+Leggatt J held that Thai Airways was entitled to recover among other things, the costs of leasing the replacement aircraft for two years.
+Thai Airways did not attempt to base its claim on an estimate of a net loss of profits measured by the differential between what its overall profits would have been if Koito had performed its contractual obligations and the profits which Thai Airways actually made during the period of the leases of the replacement aircraft.
+Having regard to the complexity of the arrangements by which the airline sought to maximise the efficiency of the use of its aircraft, that calculation would have been extremely complex.
+In the present appeals, the merchants by paying the overcharge in the MSC to the acquirers have lost funds which they could have used for several purposes.
+As sophisticated retailers, which obtain their supplies from many suppliers and sell a wide range of goods to many customers, they can respond to the imposition of a cost in a number of ways, as the CAT pointed out in paras 434 and 455 of its judgment.
+There are four principal options: (i) a merchant can do nothing in response to the increased cost and thereby suffer a corresponding reduction of profits or an enhanced loss; or (ii) the merchant can respond by reducing discretionary expenditure on its business such as by reducing its marketing and advertising budget or restricting its capital expenditure; or (iii) the merchant can seek to reduce its costs by negotiation with its many suppliers; or (iv) the merchant can pass on the costs by increasing the prices which it charges its customers.
+Which option or combination of options a merchant will adopt will depend on the markets in which it operates and its response may be influenced by whether the cost was one to which it alone was subjected or was one which was shared by its competitors.
+If the merchant were to adopt only option (i) or (ii) or a combination of them, its loss would be measured by the funds which it paid out on the overcharge because it would have been deprived of those funds for use in its business.
+Option (iii) might reduce the merchants loss.
+Option (iv) also would reduce the merchants loss except to the extent that it had a volume effect, if higher prices were to reduce the volume of its sales and thereby have an effect on the merchants profits.
+In our view the merchants are entitled to claim the overcharge on the MSC as the prima facie measure of their loss.
+But if there is evidence that they have adopted either option (iii) or (iv) or a combination of both to any extent, the compensatory principle mandates the court to take account of their effect and there will be a question of mitigation of loss, to which we now turn.
+Mitigation and the burden of proof
+Visa and Mastercard submit that the burden is on a claimant to prove its loss taking account of any pass on.
+Visa presents the merchants claims as claims for loss of profits.
+On this presentation, the claim for the overcharge incorporated in the MSC is a poor surrogate for loss of profits and must be reduced by any pass on if it is to comply with the compensatory principle.
+Sainsburys and AAM on the other hand submit that, as they have stated a prima facie case of their loss, it falls to the defendants to assert and prove that the merchants have mitigated their loss by passing on the relevant costs in the prices which they charged their customers.
+There are two reasons why the merchants are correct in their submission that they do not have the legal burden of proving their loss of overall profits caused by the overcharge.
+First, if the law were to require a claimant, which is a complex trading entity, to prove the effect on its overall profits of a particular overcharge, the claimant might face an insurmountable burden in establishing its claim.
+Were there to be such a domestic rule, it would very probably offend the principle of effectiveness.
+It is the duty of the court to give full effect to the provisions of article 101 by enabling the claimant to obtain damages for the loss which has been caused by anti competitive conduct.
+Secondly, an exclusive focus on the claimants profits would result in it being undercompensated if the overcharge had caused it to forgo discretionary expenditure to develop its business which did not promptly enhance its profits (ie option (ii) in para 205 above).
+We are also satisfied that the merchants are correct in their assertion that there is a legal burden on the defendants to plead and prove that the merchants have mitigated their loss.
+See for example, The World Beauty, 154 per Lord Denning MR; OMV Petrom SA v Glencore International AG [2016] EWCA Civ 778; [2016] 2 Lloyds Rep 432, para 47 per Christopher Clarke LJ.
+The statement of the Court of Appeal in para 324 of its judgment in the present case is an accurate statement of English law: Whether or not the unlawful charge has been passed on is a question of fact, the burden of proving which lies on the defendant who asserts it.
+But in the context of these appeals, as we discuss below, the significance of the legal burden should not be overstated.
+In some cases of mitigation, the court is concerned with additional benefits which a claimant has gained from the mitigation action which it has taken.
+In such a case, it is for the defendant to show that the benefits should be set off against the prima facie claim of loss.
+For example, in Thai Airways (above) it fell to Koito to prove that the net benefits that the airline received as a result of leasing the replacement aircraft during the relevant period offset the losses which it suffered from the delayed entry into service of the aircraft for which Koito failed to supply the seats.
+Such cases raise delicate questions as to whether a benefit is sufficiently causally connected with the breach of contract or (in tort) the wrong or whether the benefit was the result of an independent commercial decision by the claimant.
+In Fulton Shipping at para 30, Lord Clarke of Stone cum Ebony explained that there must be a sufficiently close link between the benefit and the loss caused by the wrongdoer: The relevant link is causation.
+The benefit to be brought into account must have been caused either by the breach of the charterparty or by a successful act of mitigation.
+In that case, by selling the vessel after the charterparty had been prematurely terminated the owners avoided a substantial capital loss occasioned by the collapse in the market for such vessels following the financial crisis in 2008.
+While the premature termination of the charterparty in Fulton Shipping was the occasion for the owners decision to sell the vessel, the court held that that decision was not necessitated by the termination but was a commercial decision of the owners at their own risk.
+In other cases, the court may be concerned with a failure of a claimant to act reasonably in its response to its loss.
+As Leggatt J stated in Thai Airways at para 33, quoting from an article by A Dyson and A Kramer, There is No Breach Date Rule: Mitigation, Difference in Value and Date of Assessment (2014) 130 LQR 259, 263: damages are assessed as if the claimant acted reasonably, if in fact it did not act reasonably.
+Thus, for example in Golden Strait Corpn v Nippon Yusen Kubishika Kaisha (The Golden Victory) [2007] UKHL 12; [2007] 2 AC 353, Lord Bingham of Cornhill stated (at para 10): An injured party such as the owners may not, generally speaking, recover damages against a repudiator such as the charterers for loss which he could reasonably have avoided by taking reasonable commercial steps to mitigate his loss.
+Thus where, as here, there is an available market for the chartering of vessels, the injured partys loss will be calculated on the assumption that he has, on or within a reasonable time of accepting the repudiation, taken reasonable commercial steps to obtain alternative employment for the vessel for the best consideration reasonably obtainable.
+We are not concerned in these appeals with additional benefits resulting from a victims response to a wrong which was an independent commercial decision or with any allegation of a failure to take reasonable commercial steps in response to a loss.
+The issue of mitigation which arises is whether in fact the merchants have avoided all or part of their losses.
+In the classic case of British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd [1912] AC 673, at 689 Viscount Haldane described the principle that the claimant cannot recover for avoided loss in these terms: [W]hen in the course of his business [the claimant] has taken action arising out of the transaction, which action has diminished his loss, the effect in actual diminution of the loss he has suffered may be taken into account (Emphasis added) Here also a question of legal or proximate causation arises as the underlined words show.
+But the question of legal causation is straightforward in the context of a retail business in which the merchant seeks to recover its costs in its annual or other regular budgeting.
+The relevant question is a factual question: has the claimant in the course of its business recovered from others the costs of the MSC, including the overcharge contained therein? The merchants, having acted reasonably, are entitled to recover their factual loss.
+If the court were to conclude on the evidence that the merchant had by reducing the cost of its supplies or by the pass on of the cost to its customers (options (iii) and (iv) in para 205 above) transferred all or part of its loss to others, its true loss would not be the prima facie measure of the overcharge but a lesser sum.
+The legal burden lies on the operators of the schemes to establish that the merchants have recovered the costs incurred in the MSC.
+But once the defendants have raised the issue of mitigation, in the form of pass on, there is a heavy evidential burden on the merchants to provide evidence as to how they have dealt with the recovery of their costs in their business.
+Most of the relevant information about what a merchant actually has done to cover its costs, including the cost of the MSC, will be exclusively in the hands of the merchant itself.
+The merchant must therefore produce that evidence in order to forestall adverse inferences being taken against it by the court which seeks to apply the compensatory principle.
+The degree of precision required in establishing the extent of pass on of an
+overcharge
+The court in applying the compensatory principle is charged with avoiding under compensation and also over compensation.
+Justice is not achieved if a claimant receives less or more than its actual loss.
+But in applying the principle the court must also have regard to another principle, enshrined in the overriding objective of the Civil Procedure Rules, that legal disputes should be dealt with at a proportionate cost.
+The court and the parties may have to forgo precision, even where it is possible, if the cost of achieving that precision is disproportionate, and rely on estimates.
+The common law takes a pragmatic view of the degree of certainty with which damages must be pleaded and proved: Devenish Nutrition Ltd v Sanofi Aventis SA [2007] EWHC 2394 (Ch); [2009] Ch 390, 408, para 30 per Lewison J.
+In Livingstone v Rawyards Coal Co (above) Lord Blackburn in speaking of getting as nearly as possible to the sum which would restore the claimant, recognised that the courts task in achieving reparation is not always precise.
+Similarly, Lord Shaw in Watson Laidlaw & Co Ltd (above, at 29 to 30) spoke of restoration by way of compensation being accomplished to a large extent by the exercise of a sound imagination and the practice of the broad axe and of the attempt of justice to get back to the status quo ante in fact, or to reach imaginatively, by the process of compensation, a result in which the same principle is followed.
+When the court deals with claims for personal injury, loss of life or loss of reputation, it has to put a monetary value on things that cannot be valued precisely.
+But the task of valuing claims for purely monetary losses may also lack precision if the compensatory principle is to be honoured, particularly when one is dealing with complex trading entities such as the merchants in these appeals.
+We see this for example in AAMs alternative case which seeks to assess the loss of profit caused by the volume effect where the overcharge was passed on to their customers in the form of higher prices.
+Such a claim is likely to depend in considerable measure on economic opinion evidence and involve imprecise estimates.
+We see no reason in principle why, in assessing compensatory damages, there should be a requirement of greater precision in the quantification of the amount of an overcharge which has been passed on to suppliers or customers because there is a legal burden on the defendants in relation to mitigation of loss.
+The contrary view appears to have been based on an application of (a) the CJEU jurisprudence relating to a defence to claims for restitution, that there should be an identifiable increase in a retail price directly attributable to the unlawful charge and (b) the requirement, discussed in Fulton Shipping, of a close causative link between a wrong and a benefit which the victim obtains as a consequence of the wrong: see the judgment of the Court of Appeal at paras 327 330, 337 340.
+As we have said, the relevant requirement of EU law is the principle of effectiveness.
+The assessment of damages based on the compensatory principle does not offend the principle of effectiveness provided that the court does not require unreasonable precision from the claimant.
+On the contrary, the Damages Directive is based on the compensatory principle.
+The European Commission has issued Guidelines for national courts on how to estimate the share of overcharge which was passed on to the indirect purchaser (2019/C 267/07) (the 2019 Guidelines) in accordance with a power conferred by article 16 of the Damages Directive.
+The 2019 Guidelines make clear (para 12) that the compensatory principle underlies the entire Damages Directive and must be understood as requiring that a person entitled to claim compensation for the harm suffered must be placed in the position in which that person would have been had the infringement not been committed.
+It goes on to state that pass on may be invoked by an infringer as a shield against a claim for damages and by an indirect purchaser as a sword to support the argument that it has suffered harm (paras 18 19).
+Article 12.1 of the Damages Directive requires member states to ensure not only that both direct and indirect purchasers who have suffered harm should be able to claim full compensation but also that compensation exceeding the harm caused by the infringement of competition law is avoided.
+Article 12.5 states: Member states shall ensure that the national courts have the power to estimate, in accordance with national procedures, the share of any overcharge that was passed on.
+Similarly, in article 17.1 the Damages Directive states: Member states shall ensure that neither the burden nor the standard of proof required for the quantification of harm renders the exercise of the right to damages practically impossible or excessively difficult.
+Member states shall ensure that the national courts are empowered, in accordance with national procedures, to estimate the amount of harm if it is established that a claimant suffered harm but it is practically impossible or excessively difficult precisely to quantify the harm suffered on the basis of the evidence available.
+In discussing those articles of the Damages Directive, the 2019 Guidelines (section 2.3, paras 30 35) recognise that the national courts in addressing the issue of pass on will have to resort to estimates.
+In para 33 the 2019 Guidelines state that the principles of equivalence and effectiveness mean, as regards the power to estimate, that national courts cannot reject submissions on passing on merely because a party is unable to precisely quantify the passing on effects.
+The power to estimate requires national courts to, firstly, base their assessment on the information reasonably available and, secondly, strive for an approximation of the amount or share of passing on which is plausible (para 34).
+The 2019 Guidelines note that several member states already have rules which correspond to the power to estimate which the Damages Directive envisages and (in footnote 39) refer to Lord Shaws statement in Watson, Laidlaw & Co Ltd (above) that harm may be quantified by the exercise of a sound imagination and the practice of the broad axe, and to the application of that statement by the Court of Appeal in Devenish Nutrition Ltd (above), para 110.
+As the regime is based in the compensatory principle and envisages claims by direct and indirect purchasers in a chain of supply it is logical that the power to estimate the effects of passing on applies equally when pass on is used as a sword by a claimant or as a shield by a defendant.
+The loss caused by the overcharge included in the MSC was an increased cost which the merchants would in all probability not address as an individual cost but would take into account along with a multiplicity of other costs when developing their annual budgets.
+The extent to which a merchant utilised each of the four options, which the CAT identified and we described in para 205 above, can only be a matter of estimation.
+In accordance with the compensatory principle and the principle of proportionality, the law does not require unreasonable precision in the proof of the amount of the prima facie loss which the merchants have passed on to suppliers and customers.
+Conclusion on the broad axe issue
+In conclusion, we do not interpret the Court of Appeal as having held that the defendants had to prove the exact amount of the loss mitigated.
+But in so far as the Court of Appeal has required a greater degree of precision in the quantification of pass on from the defendant than from a claimant, the Court erred.
+For these reasons, the appeal succeeds on issue (iv).
+Issue (v) The remission issue: AAMs cross appeal
+The cross appeal is only relevant to the AAM proceedings.
+By our judgment on this appeal, we have upheld the conclusion of the Court of Appeal that the default MIFs infringed article 101(1).
+Therefore, it is necessary to consider Mastercards claim in the AAM proceedings that the default MIFs should be treated as exempt under article 101(3).
+This was an issue which was fully canvassed at trial before Popplewell J.
+The judge correctly held that in order to qualify for exemption under article 101(3) an anti competitive restriction must meet a number of cumulative conditions.
+It is the first and second conditions which are relevant for present purposes, namely that any given default MIF must: (i) contribute to improving the production or distribution of goods or to promoting technical or economic progress and (ii) allow consumers a fair share of the relevant benefits.
+At trial, Mastercard had a full opportunity to present any evidence it wished in support of its case that the default MIFs at issue should be treated as exempt pursuant to article 101(3).
+Popplewell J considered that Mastercard had established its case that the default MIFs were exempt.
+A critical part of his reasoning was that part of the MIFs paid to issuers had been passed through to their cardholder customers in the form of incentives to encourage use of scheme credit or debit cards to purchase more goods from merchants, thereby providing (so Mastercard asserted) increased benefits for the merchants issuer pass through.
+The Court of Appeal considered this aspect of Popplewell Js judgment at paras 211 271.
+It held that there were a number of flaws in the judges analysis.
+It noted that there was a critical gap in the evidence put forward by Mastercard: it did not provide evidence from issuers regarding the extent to which there was pass through of the MIFs to cardholders, and had not attempted to obtain such evidence (paras 242 244).
+It was therefore impossible to tell to what extent (if at all) the cost to merchants of having to pay a default MIF in relation to each card transaction might be outweighed by countervailing benefits to them from use of MIF income to incentivise increased card use.
+The judge had failed to carry out this balancing exercise (paras 246 248).
+As the Court of Appeal noted at para 245, all that could be said was that the expert witnesses on each side agreed, purely on the basis of economic theory, that pass through could incentivise card use; but there was no empirical, factual evidence on the point as would have been necessary to show that pass through did in fact occur, the extent of it and whether incentives to cardholders would in fact have resulted in more use of scheme cards (as opposed to cardholders simply using their scheme cards all the time in any event, without being influenced by incentives, so that the merchants bore the cost of the MIFs without any corresponding benefit: the always card transactions point described at paras 250 251).
+Since Mastercard could not establish by evidence the extent of pass through, it could not show the extent to which MIF revenue was used to incentivise card usage, nor whether and to what extent it did in fact stimulate additional card usage; and this was fatal to Mastercards case for exemption (paras 252 254).
+Accordingly, the Court of Appeal held (at para 255) that the judge should have concluded, by reference to this always cards point, that Mastercard could not establish, even on the basis of economic theory, that the extent of pass through was such that the advantages thereby conferred outweighed the disadvantages to the relevant consumers [the merchants]; and it further held (ibid) that the various materials relied on by Mastercard did not satisfy the requirement for cogent factual or empirical evidence of pass through.
+The court then proceeded to make further explicit rulings in paras 257 259 as follows: 257.
+The judge should have concluded that, in the absence of any evidence as to the actual extent of the pass through, Mastercard had failed to establish by robust analysis and cogent evidence, or otherwise, a sufficient causal link between the default MIFs and any net benefits, so that their claim for exemption under article 101(3) failed. 258. [T]he judge should have concluded, on the basis of the evidence before him, that the first condition of article 101(3), the benefits requirement, was not satisfied so that Mastercard had not established entitlement to an exemption under article 101(3). 259. [Further, in relation to the second condition for an exemption under article 101(3), the fair share requirement, on the evidence advanced at trial by Mastercard] had the judge carried out the necessary balancing exercise, he would inevitably have concluded that Mastercard could not satisfy the second condition either.
+As regards the evidential standard to be applied, this court has confirmed that as a matter of EU law, cogent empirical evidence is required to show that the claim for exemption is made out.
+In the light of this, the Court of Appeals conclusions in the AAM proceedings, as set out above, cannot be faulted.
+AAM should have succeeded on its claim under article 101(1).
+So far as concerns Mastercards defence based on article 101(3), there had been a full trial on this issue and on the evidence adduced at trial the judge should have dismissed it, as the Court of Appeal rightly held.
+Despite reaching this conclusion in the passages referred to above, the Court of Appeal made an order remitting the AAM proceedings to the CAT, alongside the two other sets of proceedings, for reconsideration of whether Mastercards case under article 101(3) in the AAM proceedings should have succeeded in whole or in part.
+According to the order, it is not open to any party to advance a new case or to adduce any fresh evidence on the remittals for reconsideration of Mastercards and Visas cases in each set of proceedings for exemption under article 101(3), but the parties to each of the proceedings may rely on evidence from the other two proceedings if and only to the extent that it is relevant to the case on exemption advanced in the proceedings in question.
+On any view, we consider that it would be impossible to justify an order in this form unless all the parties affected consented to it, since it would mean that a partys case could be determined by reference to evidence in other proceedings which it had not had a fair opportunity to controvert or subject to criticism or cross examination.
+Such consent was not obtained before the Court of Appeal made its order.
+Upon enquiry at the hearing in this court, it was only the parties in the Mastercard Sainsburys and Visa Sainsburys proceedings who said they were content with this order.
+AAM did not.
+However, the point taken by AAM in their cross appeal is a still more fundamental one.
+They say that, having rightly decided that the trial judge should have dismissed Mastercards article 101(3) defence and given judgment for AAM on its claim under article 101(1), it was not open to the Court of Appeal to order that the article 101(3) issue should be remitted for reconsideration and hence permit it to be re opened by Mastercard.
+This offends against the principle of finality in litigation.
+The Court of Appeals reasoning on this point is at para 366: We take the view that, despite what we have said above, it is not certain that, had Popplewell J had the benefit of this judgment and thus been fully aware of the need for empirical data and facts in order to prove an exemption, MasterCards case on article 101(3) would have failed in its entirety.
+It is possible, bearing in mind the acceptance by Sainsburys and the CAT in the other two cases that there was a lawful level of MIF, that the judge would have found that there was some exemptible level of MIF, albeit a lower one than he in fact found.
+Altogether removing the article 101(3) issue from reconsideration could therefore result in an unjustified windfall for the AAM parties.
+It seems far more just to us that the issue should be reconsidered in all three cases, based on the same principles, by the same tribunal.
+There is no real injustice to the AAM parties in the course we propose, since the windfall to which we have referred would have arisen from the procedural mishap caused by the separation of three cases raising almost identical issues.
+If the CAT is now able to reach a consistent conclusion in all three cases on the exemption and quantum issues, that will produce a fair and just outcome for all the parties.
+It would be a triumph of form over substance if we were to hold that we were unable to reach a just solution simply as a result of a procedural accident.
+In our judgment, this reasoning cannot be supported.
+We accept the submission of Mr Jon Turner QC for AAM that the Court of Appeal has erred in principle by allowing Mastercard to re open the article 101(3) issue on which, as the Court of Appeal held, it had lost after a full and fair trial of the issue.
+This offends against the strong principle of public policy and justice that there should be finality in litigation, which the Court of Appeal did not take properly into account.
+The court was wrong to characterise victory for AAM as an unjustified windfall or the product of a procedural mishap or accident.
+It was wrong to say that re opening the article 101(3) issue involved no real injustice for AAM.
+Under the Civil Procedure Rules (CPR), litigation is to be conducted in accordance with the overriding objective set out in CPR Part 1, that is in a manner enabling the court to deal with cases justly and at proportionate cost.
+CPR rule 52.20(2) provides that on an appeal, the appellate court has power, among other things, to (a) affirm, set aside or vary any order or judgment made or given by the lower court; (b) refer any claim or issue for determination by the lower court; or (c) order a new trial or hearing.
+By virtue of CPR rule 1.2(b) the procedural rules in the CPR are to be interpreted so as to give effect to the overriding objective; and by virtue of CPR rule 1.2(a) any power conferred on a court by the CPR is to be exercised so as to give effect to it.
+The higher courts have in a number of respects laid down important and binding principles regarding what justice requires in the context of litigation, and these inform the proper approach to the interpretation and application of the overriding objective.
+One such principle which is well established is that there should be finality in litigation.
+This is a general principle of justice which finds expression in several ways, which tend to be grouped under the portmanteau term res judicata: see Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46; [2014] AC 160, paras 17 26 per Lord Sumption.
+When a legal claim has finally been determined in litigation, a cause of action estoppel arises and it cannot be reopened.
+A binding issue estoppel may arise in respect of a matter, other than a legal claim, which is directly the subject of determination in proceedings.
+Further, parties are generally required to bring forward their whole case in one action, and attempts to revisit matters that have already been the subject of a determination (even if not formally a matter of cause of action estoppel or the subject of an issue estoppel) are liable to be barred as an abuse of process: Henderson v Henderson (1843) 3 Hare 100, 114 116 per Wigram V C; Johnson v Gore Wood & Co [2002] 2 AC 1, 31 per Lord Bingham of Cornhill and 58 59 per Lord Millett; Virgin Atlantic (above).
+Under this rule, first explored in Henderson v Henderson, a party is precluded from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones (Virgin Atlantic, para 17).
+As Sir Thomas Bingham MR (as he then was) explained in Barrow v Bankside Members Agency Ltd [1996] 1 WLR 257, 260: The rule in Henderson v Henderson requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided once and for all.
+In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise.
+The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel.
+It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits when one would do.
+That is the abuse at which the rule is directed.
+This is a rule based on what is required to do justice between the parties as well as on wider public policy considerations.
+It is a rule which is firmly underwritten by and inherent in the overriding objective.
+In our view, the order made by the Court of Appeal to remit the article 101(3) issue in the AAM proceedings for reconsideration by the CAT is contrary to the principle of finality in litigation as it finds expression in the rule in Henderson v Henderson.
+The trial before Popplewell J was a final trial between AAM and Mastercard of the issues between them under article 101(1) and 101(3) so far as affected Mastercards liability to AAM.
+In preparing for the trial, Mastercard was aware of the significance of the issue of pass through, not least because attention had been called to that issue in the Mastercard Commission Decision (as noted in para 243 in the judgment of the Court of Appeal).
+In any event, the issue of pass through was central to the way in which Mastercard sought to justify its claim for exemption under article 101(3).
+It had a full and fair opportunity to adduce any evidence it wished in respect of that claim.
+Yet, as the Court of Appeal found (at para 244), it did not attempt to obtain factual, empirical evidence on that issue, choosing instead to support its claim of exemption under article 101(3) by reference to economic theory.
+As explained above, on the evidence adduced at trial, the Court of Appeal rightly found that the judge should have upheld AAMs claim of infringement of article 101(1) and in the course of doing so should have dismissed Mastercards defence based on article 101(3).
+We agree with Mr Turners submission that in circumstances where: (i) in a final trial between private litigants to determine their rights and obligations inter se each side has had a fair opportunity to bring forward all the evidence that it wants to bring forward in support of its case, and (ii) where the appellate court has concluded that, on the basis of that evidence, one party ought to have won, the court should dispose of the matter by awarding a final remedy that reflects that outcome.
+This is necessary to do justice to the parties (so that the party that has won in a fair and it might be added, very expensive contest is not deprived of the fruits of its victory), to achieve finality, and to avoid the court enlarging the dispute outside the way in which the parties have chosen to frame it.
+In the adversarial system of litigation in this country, the task of the courts is to do justice between the parties in relation to the way in which they have framed and prosecuted their respective cases, rather than to carry out some wider inquisitorial function as a searcher after truth.
+In Al Medenni v Mars UK Ltd [2005] EWCA Civ 1041, Dyson LJ observed (at para 21): It is fundamental to our adversarial system of justice that the parties should clearly identify the issues that arise in the litigation, so that each has the opportunity of responding to the points made by the other.
+The function of the judge is to adjudicate on those issues alone.
+As Lord Wilberforce stated in Air Canada v Secretary of State for Trade [1983] 2 AC 394, 438: In a contest purely between one litigant and another the task of the court is to do, and be seen to be doing, justice between the parties There is no higher or additional duty to ascertain some independent truth.
+It often happens, from the imperfection of evidence, or the withholding of it, sometimes by the party in whose favour it would tell if presented, that an adjudication has to be made which is not, and is known not to be, the whole truth of the matter: yet if the decision has been in accordance with the available evidence and with the law, justice will have been fairly done.
+In our view, and with respect to them, the Court of Appeal lost sight of these principles when it made an order which would permit Mastercard to reopen its case under article 101(3) and rely upon evidence (adduced in other proceedings, but new in the AAM proceedings) which was not adduced at the trial of that issue.
+The matter may further be tested in various ways.
+Suppose Popplewell J had determined the issues before him as the Court of Appeal held they should have been determined by him (ie on the basis that Mastercards defence under article 101(3) failed) and there had been no need for an appeal.
+He would have made a final order in AAMs favour in 2017 giving judgment for them on their article 101(1) claim (necessarily thereby rejecting the article 101(3) defence), and that order would have constituted a cause of action estoppel in their favour.
+There could have been no question of Mastercard seeking to reopen that order by seeking to litigate again on the same issues, by relying on new evidence as adduced in other proceedings.
+It is difficult to see how it could be right for the Court of Appeal to produce a different outcome by reason of the adventitious circumstance that AAM had to go through the process of appeal to arrive at the result it was entitled to have achieved at first instance.
+Alternatively, one could analyse the outcome which would have been arrived at in relation to the article 101(3) defence as a matter of issue estoppel, and the same point could be made.
+Or again, one could analyse the position by reference to the rule in Henderson v Henderson and say that it would have been an abuse of process for Mastercard to have sought to re open the article 101(3) issue by reference to new evidence, the substance of which it had had the opportunity to adduce previously at trial before Popplewell J. Since it would have been unjust to allow an application by Mastercard to do that, it is difficult to see how it could be compatible with justice for the Court of Appeal to produce that same outcome by its exercise of discretion on its own initiative under CPR rule 52.20(2).
+On the contrary, in our view it was contrary to justice and to the overriding objective for the Court of Appeal to make the order it did in the AAM proceedings.
+It was also contrary to CPR rule 52.20(2) itself, on its proper construction, since under CPR rule 1.2(b) that provision falls to be interpreted in a way which is in conformity with the overriding objective.
+This is sufficient to justify allowing AAMs cross appeal.
+However, we also consider the comments made by the Court of Appeal at para 366 (above) to be misplaced.
+If it is decided by the CAT after the further hearing in the Mastercard Sainsburys proceedings and the Visa Sainsburys proceedings that, on the evidence and concessions made by Sainsburys in those proceedings (concessions with which AAM do not agree and which they consider to be baseless and wrongly made), there was some level of MIFs which would have been exempt under article 101(3), with the result that Sainsburys claims for damages for breach of article 101(1) would be reduced, that would in no way show that there was an unjustified windfall for AAM arising out of a final order in their favour in the AAM proceedings.
+As the Court of Appeal rightly held, after the fair trial which took place, the judge should have found that AAM succeeded in its claim.
+That result is not a windfall, nor is it unjustified.
+It is the just outcome of the contest fought by the parties in those proceedings.
+It would have made no difference if the fact that there was a separate trial of the AAM proceedings could be described as the result of a procedural mishap or accident, or if with hindsight it might have been thought better for all three sets of proceedings to be tried together.
+The fact would still remain that, as events transpired, Mastercard had lost to AAM at trial after a fair hearing on the issues between them.
+However, in any event, in our view it is not correct to characterise the way in which the AAM proceedings were dealt with separately from the other proceedings and went forward to be dealt with at a separate trial as being the result of a procedural mishap or accident.
+There are many sets of interchange damages claims pending against Mastercard and Visa (and other card system operators) in the court system, and it would be wholly impracticable for them all to be tried together at the same time.
+In a sensible and responsible way, Visa, Mastercard, Sainsburys and AAM debated at various stages whether the proceedings involving them could be case managed or heard together, and on each occasion the judgment was made that there were good reasons why they should not be.
+The fact that there have been three separate trials in the three sets of proceedings is not the result of any procedural accident, but rather of deliberate and informed choices made by the parties, courts and the CAT as to how these complex claims should be determined within the court system.
+It may also be observed that, contrary to what the Court of Appeal seems to have thought it would achieve by ordering a combined hearing in the CAT in the three sets of proceedings at issue in this appeal, that combined hearing will not produce a single, comprehensive determination of liability in relation to the other interchange fee damages claims.
+Those other claims will have to be determined in each case on the basis of the pleadings and the evidence adduced in that case.
+Conclusion on AAMs cross appeal
+For the reasons given above, AAMs cross appeal is allowed.
+The order made by the Court of Appeal will be varied, to substitute an order declaring that the relevant MIFs charged to AAM in the relevant period were contrary to article 101(1) (and the equivalent provisions of UK and Irish competition law); and that Mastercard has failed to discharge the burden on it of demonstrating that a MIF set at any positive level would have met the test for exemption under article 101(3) (and the equivalent provisions of UK and Irish law).
+If not settled, the AAM proceedings should then proceed to a trial on the issue of quantum of damages.
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+The law of vicarious liability is on the move.
+So stated Lord Phillips of Worth Matravers in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56; [2013] 2 AC 1, generally known as Christian Brothers, at para 19.
+The question raised by the current case, and by the parallel case of WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12, is how far that move can take it.
+Two elements have to be shown before one person can be made vicariously liable for the torts committed by another.
+The first is a relationship between the two persons which makes it proper for the law to make the one pay for the fault of the other.
+Historically, and leaving aside relationships such as agency and partnership, that was limited to the relationship between employer and employee, but that has now been somewhat broadened.
+That is the subject matter of this case.
+The second is the connection between that relationship and the tortfeasors wrongdoing.
+Historically, the tort had to be committed in the course or within the scope of the tortfeasors employment, but that too has now been somewhat broadened.
+That is the subject matter of the Morrisons case.
+The facts
+The issue before us is whether Barclays Bank is vicariously liable for the sexual assaults allegedly committed between 1968 and about 1984 by the late Dr Gordon Bates on some 126 claimants in this group action.
+Dr Bates was a medical practitioner practising in Newcastle upon Tyne.
+According to his sons evidence, he had a portfolio practice.
+Some of it was as an employee in local hospitals.
+Some of it was doing medical examinations for emigration purposes.
+Some of it was doing miscellaneous work for insurance companies, a mining company and a government board.
+Some of it was doing medical assessments and examinations of employees or prospective employees, originally for Martins Bank, and later for Barclays Bank following their merger in 1969.
+This was, however, a comparatively minor part of his practice.
+He also wrote a newspaper column.
+Applicants for jobs at Barclays who were successful at interview would be told that they would be offered a job, subject to passing a medical examination and obtaining satisfactory results in their GCE examinations.
+The purpose of the examination was to show that they were medically fit for working in the Bank and could be recommended for life insurance at ordinary rates as required by the Banks pension scheme.
+The Bank arranged the appointments with Dr Bates, told the applicants when and where to go, and provided him with a pro forma report to be filled in.
+This was headed Barclays Confidential Medical Report and signed by Dr Bates and the applicant.
+Dr Bates was paid a fee for each report.
+He was not paid a retainer by the Bank.
+If the report was satisfactory, the job offer would be confirmed, subject to examination results.
+At that time, the Bank was recruiting young people, many of them female.
+Many of the claimants were teenagers at the time, some aged 16, going for their first jobs on leaving school.
+The examinations took place in Dr Bates home in Newcastle.
+A room in the house had been converted into a consulting room.
+The claimants were always alone in the room when they were examined by the doctor, although some attended on their own and some were accompanied by other family members.
+It is alleged that Dr Bates sexually assaulted them in the course of those examinations, by inappropriate examination of their breasts and/or digital contact with or penetration of their anus or vagina.
+Dr Bates died in 2009 and his estate (worth over half a million pounds) has been distributed.
+He cannot be sued by the claimants but neither can the Bank claim contribution from him should any of these actions succeed.
+This litigation began in 2015 and a group litigation order was made in 2016.
+The managing judge, Nicola Davies J, ordered a trial of the preliminary issue of whether the Bank is vicariously liable for any assaults that Dr Bates is proved to have perpetrated in the course of medical examinations carried out at the Banks request.
+On 26 July 2017, Nicola Davies J held that Barclays is vicariously liable for any assaults proved: [2017] EWHC 1929 (QB); [2017] IRLR 1103.
+On 17 July 2018, the Court of Appeal dismissed Barclays appeal: [2018] EWCA Civ 1670; [2018] IRLR 947.
+The Bank now appeals to this court.
+The parties cases
+The parties respective positions can be simply put.
+As Lord Bridge of Harwich stated in D & F Estates Ltd v Church Comrs [1989] AC 177, 208 (echoing the words of Widgery LJ in Salsbury v Woodland [1970] 1 QB 324, 336), It is trite law that the employer of an independent contractor is, in general, not liable for the negligence or other torts committed by the contractor in the course of the execution of the work.
+The Bank argues that, although recent decisions have expanded the categories of relationship which can give rise to vicarious liability beyond a contract of employment, they have not so expanded it as to destroy this trite proposition of law, which has been with us since at least the decision of Baron Parke in Quarman v Burnett (1840) 6 M & W 499, 151 ER 509.
+The claimants, on the other hand, argue that the recent Supreme Court cases of Christian Brothers, Cox v Ministry of Justice [2016] UKSC 10; [2016] AC 660, and Armes v Nottinghamshire County Council [2017] UKSC 60; [2018] AC 355, have replaced that trite proposition with a more nuanced multi factorial approach in which a range of incidents are considered in deciding whether it is fair, just and reasonable to impose vicarious liability upon this person for the torts of another person who is not his employee.
+That was the approach adopted both by the trial judge and the Court of Appeal in this case.
+It will be apparent, therefore, that it is necessary to examine those three decisions in some detail, along with their precursor, the decision of the Court of Appeal in E v English Province of Our Lady of Charity [2012] EWCA Civ 938; [2013] QB 722, some four months before the decision in the Christian Brothers case, as well as some later cases.
+As it happens, I sat on all three of the Supreme Court cases and agreed with the leading judgment in each; Lord Reed sat on Cox and Armes, in each of which he delivered the leading judgment; Lord Kerr sat on Christian Brothers and Armes and agreed with the leading judgment in each.
+The recent decisions
+The recent expansion in the law of vicarious liability began with the House of Lords decision in Lister v Hesley Hall Ltd [2001] UKHL 22; [2002] 1 AC 215.
+The owners of a childrens home were held vicariously liable for the sexual abuse perpetrated by their employee, the warden.
+It was thus concerned with stage two of the enquiry the connection between the employment and the wrongdoing and not with stage one.
+Nevertheless, it proved influential in later cases, partly because of the willingness to expand the law, and partly because of the prominence it gave to some important decisions of the Supreme Court of Canada, which had placed emphasis on the policy considerations underlying the law.
+Although their lordships did not endorse all of those policy considerations, they did adopt the same test as had been adopted in Canada.
+Furthermore, some of those policy considerations found their way into the later cases dealing with stage one of the enquiry.
+In Bazley v Curry [1999] 2 SCR 534, the owners of a childrens home were held vicariously liable for sexual abuse committed by one of their employees in the home.
+The fundamental question was whether the wrongful act was sufficiently related to the conduct authorised by the employer to justify imposing vicarious liability.
+This was generally appropriate where there was a significant connection between the creation or enhancement of the risk and the wrongdoing.
+Vicarious liability would then serve the policy aims of providing an adequate remedy and deterring the risk.
+Once engaged in a business it was fair that the employer be made to pay for the generally foreseeable risks of that business.
+In contrast, in Jacobi v Griffiths [1999] 2 SCR 570, a childrens club was not vicariously liable for the acts of an employee which took place in the employees home outside working hours.
+It was not enough that his employment in the club gave him the opportunity to make friends with the children.
+The first English case to consider directly whether the enquiry at stage one might expand beyond the relationship of employee and employer was Es case.
+This built upon the earlier decision in Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ 1151; [2006] QB 510.
+Severe flood damage had been caused to a factory, where air conditioning was being installed, by the negligence of a fitters mate; the fitter and his mate had been supplied on a labour only basis by the third defendant to the second defendant to whom some of the work had been sub contracted; the Court of Appeal held both the second and third defendants jointly vicariously liable.
+May LJ relied on the fact that both were in a position to control the fitters mate.
+Rix LJ, on the other hand, said that he would hazard the view that what one is looking for is a situation where the employee in question, at any rate for relevant purposes, is so much a part of the work, business or organisation of both employers that it is just to make both employers answer for his negligence (para 79).
+Thus was vicarious liability extended to a person who was not in law the employer of the tortfeasor.
+In Es case, the claimant alleged that while living in a childrens home run
+by a Roman Catholic order of nuns she had been sexually abused by a priest appointed by the local diocesan bishop.
+The issue was whether the trust which stood in the place of the bishop could be vicariously liable for the priests wrongdoing.
+The priest was not an employee of the bishop or the diocese.
+Nevertheless, it was held that his relationship with the bishop was sufficiently akin to employment to make it fair and just to hold the bishop vicariously liable.
+Significantly, Ward LJ, who gave the leading judgment, did not question the traditional distinction between an employee and an independent contractor.
+Rather, he asked himself what was the essence of each of those roles and then asked whether the relationship between the priest and the bishop was closer to that of an employee or to that of an independent contractor.
+He summed up the difference thus (para 70): an employee is one who is paid a wage or salary to work under some, if only slight, control of his employer in his employers business for his employers business.
+The independent contractor works in and for his own business at his risk of profit or loss.
+By that test, the relationship between priest and bishop was sufficiently akin to employment to make it fair and just to hold the bishop liable.
+Next came the Christian Brothers case.
+This raised issues at both stage one and stage two of the enquiry but much more prominently at stage one.
+The claimants had been inmates at a residential school owned by the Catholic Child Welfare Society (referred to as the Middlesbrough defendants), which also employed the teachers.
+Some of the teachers, and the head teacher, were members of the Institute of Christian Brothers.
+Serious physical and sexual abuse was alleged against some of the brothers.
+The issue was whether the Institute could be vicariously liable, jointly with the Middlesbrough defendants.
+In para 35, Lord Phillips of Worth Matravers listed a number of policy reasons usually making it fair, just and reasonable to impose vicarious liability upon an employer for the torts committed by an employee in the course of his employment: the tort will have been committed as a result of activity the employees activity is likely to be part of the the employer is more likely to have the means to (i) compensate the victim than the employee and can be expected to have insured against that liability; (ii) being taken by the employee on behalf of the employer; (iii) business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) been under the control of the employer.
+the employee will, to a greater or lesser degree, have
+These are policy reasons, closely related to the policy reasons derived from the Canadian cases and Lister v Hesley Hall.
+But, as Lord Hobhouse of Woodborough stressed in that case, at para 60, an exposition of the policy reasons for a rule (or even a description) is not the same as defining the criteria for its application.
+Legal rules have to have a greater degree of clarity and definition than is provided by simply explaining the reasons for the existence of the rule and the social need for it, instructive though that may be.
+This passage was cited by Ward LJ in Es case, para 54, followed by this: My own view is that one cannot understand how the law relating to vicarious liability has developed nor how, if at all, it should develop without being aware of the various strands of policy which have informed that development.
+On the other hand, a coherent development of the law should proceed incrementally in a principled way, not as an expedient reaction to the problem confronting the court.
+There appears to have been a tendency to elide the policy reasons for the doctrine of the employers liability for the acts of his employee, set out in para 35 of Christian Brothers, with the principles which should guide the development of that liability into relationships which are not employment but which are sufficiently akin to employment to make it fair and just to impose such liability.
+This may have arisen because of what Lord Phillips said, at para 47: At para 35 above, I have identified those incidents of the relationship between employer and employee that make it fair, just and reasonable to impose vicarious liability on a defendant.
+Where the defendant and the tortfeasor are not bound by a contract of employment, but their relationship has the same incidents, that relationship can properly give rise to vicarious liability on the ground that it is akin to that between an employer and an employee.
+That was the approach adopted by the Court of Appeal in Es case [2013] QB 722.
+I do not believe that by his reference to those incidents Lord Phillips was saying that they were the only criteria by which to judge the question.
+This is for two reasons.
+First, in Es case, Ward LJ had adopted the test of akin to employment but he had not asked himself whether those five incidents were present.
+He had conducted a searching enquiry into whether the relationship between the priest and the bishop was more akin to employment than to anything else.
+Secondly, when it came to applying the akin to employment test in the Christian Brothers case, Lord Phillips did not address himself to those five incidents but to the detailed features of the relationship.
+Thus: 56.
+In the context of vicarious liability the relationship between the teaching brothers and the institute had many of the elements, and all the essential elements, of the relationship between employer and employees. (i) The institute was subdivided into a hierarchical structure and conducted its activities as if it were a corporate body. (ii) The teaching activity of the brothers was undertaken because the provincial directed the brothers to undertake it.
+True it is that the brothers entered into contracts of employment with the Middlesbrough defendants, but they did so because the provincial required them to do so. (iii) The teaching activity undertaken by the brothers was in furtherance of the objective, or mission, of the institute. (iv) The manner in which the brother teachers were obliged to conduct themselves as teachers was dictated by the institutes rules. 57.
+The relationship between the teacher brothers and the institute differed from that of the relationship between employer and employee in that: (i) The brothers were bound to the institute not by contract, but by their vows. (ii) Far from the institute paying the brothers, the brothers entered into deeds under which they were obliged to transfer all their earnings to the institute.
+The institute catered for their needs from these funds. 58.
+Neither of these differences is material.
+Indeed they rendered the relationship between the brothers and the institute closer than that of an employer and its employees.
+I have quoted these paragraphs at length to show that he was answering the questions by reference to the details of the relationship, and its closeness to employment, rather than by reference to the five policy reasons in para 35.
+It is significant that, shortly after the decision in Christian Brothers, this court decided the case of Woodland v Swimming Teachers Association [2013] UKSC 66; [2014] AC 537, in which it was held that a school had a non delegable duty of care towards the pupils for whom it arranged compulsory swimming lessons with an independent contractor.
+Lord Sumption said this, at para 3: The boundaries of vicarious liability have been expanded by recent decisions of the courts to embrace tortfeasors who are not employees of the defendant, but stand in a relationship which is sufficiently analogous to employment: Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1.
+But it has never extended to the negligence of those who are truly independent contractors, such as Mrs Stopford appears to have been in this case.
+Lord Sumption not only saw the Christian Brothers case as adopting the sufficiently analogous to employment test but also as casting no doubt on the conventional distinction between employees, and those analogous to employees, and independent contractors.
+The next case was Cox v Ministry of Justice [2016] UKSC 10; [2016] AC 660.
+The issue was whether the prison service could be vicariously liable for injuries caused to a prison catering manager by the negligence of a prisoner who was working under her direction on prison service pay.
+There was no contract of employment between the prison and the prisoners.
+Nevertheless, applying the Christian Brothers case, this court held that the prison was vicariously liable.
+It is fair to say that Lord Reed did focus on the five policy factors identified by Lord Phillips.
+He pointed out that they are not all of equal significance.
+Factor (i), deep pockets, is not in itself a principled reason to impose liability, although the absence of any other source of compensation may sometimes be taken into account (para 20).
+Factor (v), control, does not have the significance which once it did.
+In todays world an employer is likely to be able to tell an employee what to do but not (at least always) how to do it.
+But the absence of even this vestigial degree of control would point against liability (para 21).
+That left three interrelated factors: (ii) that the tort was committed as a result of activity undertaken by the tortfeasor on behalf of the defendant; (iii) that the activity was part of the business activity of the defendant; and (iii) that by employing the tortfeasor to do it, the defendant created the risk of his committing the tort (para 22).
+He summed up the principle thus (para 24): The result of this approach is that a relationship other than one of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the business activities carried on by a defendant and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to the individual in question. (Emphasis supplied)
+Lord Reed went on to refer to Lord Phillips citation of Es case and the sufficiently akin to employment test (para 26) and to his application of that test to the facts of the Christian Brothers activities (para 27).
+He emphasised that this new general approach was not special to cases of alleged sexual abuse (para 29).
+He repeated the distinction between integrated activities and activities entirely attributable to the conduct of a recognisably independent business of the tortfeasor or some other person (para 29).
+And he pointed out that references to business and enterprise did not mean that the employers activities had to be commercial in nature (para 30).
+He had no difficulty in concluding that the prison service was vicariously liable for the prisoners tort.
+It seems to me obvious that in Cox the result was bound to be the same whether it was expressed in terms of the test stated in para 24 of Lord Reeds judgment or in terms of the sufficiently akin to employment test.
+Indeed, the case for vicarious liability for torts committed by prisoners in the course of their work within the prison seems to me a fortiori the case for vicarious liability for the work done by employees for their employers.
+There is nothing in Lord Reeds judgment to cast doubt on the classic distinction between work done for an employer as part of the business of that employer and work done by an independent contractor as part of the business of that contractor.
+The last, and perhaps the most difficult, case is Armes v Nottinghamshire County Council [2017] UKSC 60; [2018] AC 855.
+The issue was whether the County Council could be vicariously liable for physical and sexual abuse allegedly carried out by two of the foster parents with whom the claimant was placed by the County Council while in their care.
+Lord Reed repeated his analysis in Cox, prefacing his account with the statement that, while the classic example of a relationship justifying the imposing of vicarious liability was employer and employee, as explained in Cox and Christian Brothers the doctrine can also apply where the relationship has certain characteristics similar to those found in employment (para 54).
+In applying the five incidents identified in those cases, he placed more emphasis on the lack of any other source of compensation if there were no vicarious liability and on the extent of the control exercised by the local authority over the foster parents care for the children (para 62).
+In applying the three inter related factors, he held that the relevant activity of the local authority was the care of children committed to the local authoritys care (para 59).
+The foster parents were an integral part of the local authoritys organisation of its childcare services, carried on for the benefit of the local authority (para 60).
+By placing the children in foster care, the local authority had created the risk of the harm being done (para 61).
+Significantly, having examined the relationship between the foster parents and the local authority in some detail, he concluded that the foster parents cannot be regarded as carrying on an independent business of their own (para 59).
+There is nothing, therefore, in the trilogy of Supreme Court cases discussed above to suggest that the classic distinction between employment and relationships akin or analogous to employment, on the one hand, and the relationship with an independent contractor, on the other hand, has been eroded.
+Two cases decided by common law courts since Christian Brothers and Cox have reached the same conclusion.
+In Kafagi v JBW Group Ltd [2018] EWCA Civ 1157, Singh LJ stated that the
+development from employment to something akin to employment had not undermined the conventional distinction between a contract of employment and a contract for services (para 21).
+The defendant company had a contract with a local authority to collect their council tax debts.
+It sub contracted the work to a registered bailiff, the alleged tortfeasor, who ran his own business and could pick and choose what work to do (para 50), had his own insurance (para 52) and could work for other clients (para 53).
+Their relationship was not akin to employment (para 56).
+In Ng Huat Seng v Mohammad [2017] SGCA 58, the owners of a property
+had engaged the tortfeasor as an independent contractor to carry out demolition works at their premises.
+It was argued that the recent decisions had undermined the distinction between employees and independent contractors.
+The Singapore Court of Appeal (their final court) held that the two cases did not present a new analytical framework.
+Rather (para 63): while we accept that the Christian Brothers case and Cox recognise that the doctrine of vicarious liability can be applied outside the strict confines of an employment relationship, it becomes evident, when one examines these judgments more closely, that their essential contribution was to fine tune the existing framework underlying the doctrine so as to accommodate the more diverse range of relationships which might be encountered in todays context.
+These relationships, when whittled down to their essence, possess the same fundamental qualities as those which inhere in employer employee relationships, and thus make it appropriate for vicarious liability to be imposed.
+Further (para 64): Indeed, we do not see how vicarious liability, the normative foundation of which rests on the theory that it is fair, just and reasonable to hold a defendant liable for the acts of the tortfeasor on the ground that the tortfeasor is in fact engaged in the defendants enterprise, could possibly be extended to tortious acts committed by an independent contractor, who, by definition, is engaged in his own enterprise.
+There is simply nothing fair, just and reasonable about imposing secondary liability on a defendant in such a situation.
+The question therefore is, as it has always been, whether the tortfeasor is carrying on business on his own account or whether he is in a relationship akin to employment with the defendant.
+In doubtful cases, the five incidents identified by Lord Phillips may be helpful in identifying a relationship which is sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability.
+Although they were enunciated in the context of non commercial enterprises, they may be relevant in deciding whether workers who may be technically self employed or agency workers are effectively part and parcel of the employers business.
+But the key, as it was in Christian Brothers, Cox and Armes, will usually lie in understanding the details of the relationship.
+Where it is clear that the tortfeasor is carrying on his own independent business it is not necessary to consider the five incidents.
+Application in this case
+Clearly, although Dr Bates was a part time employee of the health service, he was not at any time an employee of the Bank.
+Nor, viewed objectively, was he anything close to an employee.
+He did, of course, do work for the Bank.
+The Bank made the arrangements for the examinations and sent him the forms to fill in.
+It therefore chose the questions to which it wanted answers.
+But the same would be true of many other people who did work for the Bank but were clearly independent contractors, ranging from the company hired to clean its windows to the auditors hired to audit its books.
+Dr Bates was not paid a retainer which might have obliged him to accept a certain number of referrals from the Bank.
+He was paid a fee for each report.
+He was free to refuse an offered examination should he wish to do so.
+He no doubt carried his own medical liability insurance, although this may not have covered him from liability for deliberate wrongdoing.
+He was in business on his own account as a medical practitioner with a portfolio of patients and clients.
+One of those clients was the Bank.
+Comment
+Until these recent developments, it was largely assumed that a person would be an employee for all purposes employment law, tax, social security and vicarious liability.
+Recent developments have broken that link, which may be of benefit to people harmed by the torts of those working in the gig economy.
+It would be tempting to align the law of vicarious liability with employment law in a different way.
+Employment law now recognises two different types of worker: (a) those who work under a contract of employment and (b) those who work under a contract whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual (Employment Rights Act 1996, section 230(3)).
+Limb (b) workers enjoy some but by no means all the employment rights enjoyed by limb (a) workers.
+It would be tempting to say that limb (b) encapsulates the distinction between people whose relationship is akin to employment and true independent contractors: people such as the solicitor in Bates van Winkelhof v Clyde and Co LLP [2014] UKSC 32; [2014] 1 WLR 2047, or the plumber in Pimlico Plumbers Ltd v Smith [2018] UKSC 29; [2018] ICR 1511.
+Asking that question may be helpful in identifying true independent contractors.
+But it would be going too far down the road to tidiness for this court to align the common law concept of vicarious liability, developed for one set of reasons, with the statutory concept of worker, developed for a quite different set of reasons.
+Conclusion
+I would allow this appeal and hold that the Bank is not vicariously liable for
+any wrongdoing of Dr Bates in the course of the medical examinations he carried out for the Bank.
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+The common subject matter of these appeals is the treatment for rating purposes of ATMs (or automated teller machines) situated in supermarkets or shops.
+That turns on two main issues: first, were the sites of the ATMs properly identified as separate hereditaments from the stores or shops? Secondly, if so, who was in rateable occupation? The present appeals have been designated as lead appeals.
+Appeals relating to some 10,000 other sites (amounting to some 34,000 appeals in all) have been stayed pending the final decision in these cases.
+For convenience I shall refer to the respondents collectively as the retailers, to include (where different) the companies operating the ATMs.
+Different conclusions were reached at each level below.
+The Valuation Tribunal for England decided that in each case the sites of the ATMs were in separate rateable occupation.
+The Upper Tribunal (Lands Chamber) upheld that decision in respect of all the external machines, but not the internal machines.
+The Court of Appeal held that none of the machines, external or internal, were separately rateable.
+These questions have attracted a wealth of learning below, and in this court.
+I would pay tribute to the comprehensive and insightful treatment of the complex legal and factual issues at all three levels: the Valuation Tribunal for England (92 paragraphs: Alf Clark, Vice President); the Upper Tribunal (Lands Chamber) (195 paragraphs: Martin Rodger QC, Deputy Chamber President and A J Trott FRICS), and Court of Appeal (100 paragraphs: Lindblom LJ, with whom Gloster and King LJJ agreed).
+It is important however to be clear where lies the primary responsibility for reviewing the Valuation Officers decisions.
+Although the first appeal is to the Valuation Tribunal, and the Upper Tribunal acts as an appellate body, it does so by way of a full rehearing, not simply review, if necessary hearing evidence for that purpose (Johnson v H & B Foods Ltd [2013] UKUT 539 (LC); [2014] RA 490 per Sir Keith Lindblom CP).
+By contrast, onward appeal to the Court of Appeal lies only on points of law.
+Accordingly, it is to the Upper Tribunals judgment that we must look first for the relevant findings of fact and their evaluation.
+To justify intervention at a higher level it is necessary to identify something more than a difference of evaluative assessment.
+Further in this highly specialised area of the law the higher courts should give particular weight to the expertise which has been developed by the senior judges and members of the Upper Tribunal (Lands Chamber).
+That weight is not necessarily diminished by the fact that in this particular appeal, none of the parties before the court has seen it as in their own interests to defend the Upper Tribunals decision in its own terms.
+This of course is not to overlook the expertise in this field of Lindblom LJ, himself a former President of the Lands Chamber.
+External and internal ATMs
+The great majority of the ATMs in issue are external: typical hole in the wall machines fitted in the external walls of superstores or supermarkets belonging to the major national retailers, and as such available for use by the general public whether or not they are shopping there.
+In each case the ATM itself was installed and operated, not directly by the
+retail company but under contractual arrangements with a related banking company.
+This separation, we were told, was necessary for regulatory reasons.
+Although the contractual arrangements vary between the different groups, as discussed in detail in the judgments below, I do not understand these differences to have played a significant part in the ultimate decisions.
+That seems to me correct.
+It would be surprising if the rating treatment of such standard items were to vary according to the particular organisational arrangements of the companies concerned.
+As I understood his submissions, Mr Morshead QC for the appellant Valuation Officers did not attach particular weight to those differences, but was rightly concerned to establish principles of general application.
+Of the external ATMs, I can take as typical the ATM in Sainsburys supermarket in Worcester, as described by Lindblom LJ (para 6).
+The store was first shown in 2010 as Superstore and Premises with a rateable value of 875,000.
+That was replaced, as a result of the decision now under appeal, by separate entries of 875,000 for the store alone and 8,300 for the ATM site. (These figures can be taken as broadly illustrative for all the cases.
+The figures are not agreed and subject to future determination.
+But it is not in dispute that separate treatment of the ATMs is liable to have a significant impact in financial terms both in individual cases, and particularly when multiplied by the number of cases awaiting decision.)
+The Worcester ATM is in an external wall, next to the main entrance door, and can be used 24 hours a day.
+It sits on a metal plinth, is chained to the floor of the cash room in the store, and is connected to the supermarkets electricity supply.
+Sainsbury is the leasehold owner of the store, including the site of the ATM.
+An associated company, Sainsburys Bank plc, has a contractual licence to install and operate the ATM, and for that purpose to enter the ATM site.
+The cash dispensed by the ATMs is owned by the bank, but is kept in the security room of the store, under the control of Sainsburys staff.
+Maintenance is carried out daily by Sainsburys staff during the opening hours of the store.
+Some of Tescos ATMs are described as internal, in that they are available for use only from within the store, and accessible only during store opening hours.
+Apart from that, and with one exception, the physical and organisational arrangements are for practical purposes the same as for the external machines.
+The exception is the so called moveable ATM on the first floor of the Tescos store in Nottingham.
+It will be described later in this judgment.
+This difference led the Upper Tribunal to conclude that the site of this ATM, unlike all the others, did not qualify as a separate hereditament, so that the issue of rateable occupation did not arise.
+The last category can be described as a convenience store ATM, represented by the Cardtronics ATM in a Londis convenience store in Harefield.
+It is similar to the other external ATMs, but the main difference is the much smaller floorspace of the store, so that maintenance and loading leads to greater interference with the ordinary working of the store.
+I take the description from Lindblom LJ (para 9): Cardtronics operates an ATM in a Londis convenience store in Harefield, with about 60 square metres of floor space.
+The ATM is in an external wall, next to the entrance door.
+The ATM was placed in the store under a licence agreement with Londis, dated 26 March 2007, which makes provision for Cardtronics to gain access to it.
+It is owned, operated, maintained and loaded by Cardtronics.
+Maintenance and loading are undertaken within the store.
+Loading blocks an aisle, and the store is sometimes closed while it is being carried out.
+The Upper Tribunal gave further detail of the physical arrangement within the store (para 149): Within the store the machine is partially concealed from view by a pillar on one side but otherwise its metal cabinet is in plain sight, not being housed in any separate structure created for the purpose.
+The top of the cabinet is used to display magazines and other goods.
+The only adaptation to the store which has been undertaken to accommodate the ATM is the creation of a separate panel on the front of the building through which the display and keypad can be accessed and where we assume there would previously have been a window.
+The legal principles
+I turn to the relevant statutory provisions, and the leading authorities.
+Section 64(1) of the Local Government Finance Act 1988 defines a hereditament as anything which would before the passing of the Act have been a hereditament for the purposes of section 115(1) of the General Rate Act 1967.
+That section in turn provides that hereditament means: property which is or may become liable to a rate, being a unit of such property which is, or would fall to be, shown as a separate item in the valuation list.
+Authoritative guidance as to the application of that definition has recently been given by this court in Woolway (Valuation Officer) v Mazars LLP [2015] UKSC 53; [2015] AC 1862.
+As to rateable occupation, section 65(2) provides that whether a hereditament is occupied, and who is the occupier are to be determined by reference to the rules which would have applied under the 1967 Act.
+They were well established long before the 1967 Act.
+The classic statement of the ingredients of rateable occupation is that of Tucker LJ in John Laing & Son Ltd v Assessment Committee for Kingswood Assessment Area [1949] 1 KB 344, 350: . there are four necessary ingredients in rateable occupation .
+First, there must be actual occupation; secondly, that it must be exclusive for the particular purposes of the possessor; thirdly, that the possession must be of some value or benefit to the possessor; and, fourthly, the possession must not be for too transient a period.
+Two authorities at the highest level provide guidance as to the application of the second ingredient (exclusive) in cases of concurrent occupation.
+The first is Holywell Union Assessment Committee v Halkyn District Mines Drainage Co [1895] AC 117, 126, in which Lord Herschell LC said: There are many cases where two persons may, without impropriety, be said to occupy the same land, and the question has sometimes arisen which of them is rateable.
+Where a person already in possession has given to another possession of a part of his premises, if that possession be not exclusive he does not cease to be liable to the rate, nor does the other become so.
+A familiar illustration of this occurs in the case of a landlord and his lodger.
+Both are, in a sense, in occupation, but the occupation of the landlord is paramount, that of the lodger subordinate.
+The concepts of paramount and subordinate occupation were taken a stage further in the second case: Westminster Council v Southern Railway Co [1936] AC 511.
+This has been at the centre of much of the arguments in the present appeal.
+It was held that certain retail units at Victoria Station, including bookstalls, kiosks, a chemist's shop and various showcases, occupied by independent retailers under agreements with the railway company, should be treated as separate hereditaments in the rateable occupation of the retailers.
+As Lord Wright MR explained (p 551): The question is whether the premises in question have been so carved out of the railway hereditament, to which they or their sites belonged, as to be capable of a separate assessment, or whether they have, though let out, been so let out as still to leave them in the occupation of the Railway Company.
+As that passage shows, although it may be convenient for the purpose of analysis to separate the issues of hereditament and occupation, they are in truth linked.
+Lord Russell of Killowen (at pp 529 530) made some general observations on rateable occupation, including the treatment of concurrent occupation, which have been regarded as authoritative in later cases: The occupier, not the land, is rateable; but, the occupier is rateable in respect of the land which he occupies.
+Occupation, however, is not synonymous with legal possession: the owner of an empty house has the legal possession, but he is not in rateable occupation.
+Rateable occupation, however, must include actual possession, and it must have some degree of permanence: a mere temporary holding of land will not constitute rateable occupation.
+Where there is no rival claimant to the occupancy, no difficulty can arise; but in certain cases there may be a rival occupancy in some person who, to some extent, may have occupancy rights over the premises.
+The question in every such case must be one of fact namely, whose position in relation to occupation is paramount, and whose position in relation to occupation is subordinate; but, in my opinion, the question must be considered and answered in regard to the position and rights of the parties in respect of the premises in question, and in regard to the purpose of the occupation of those premises.
+In other words, in the present case, the question must be, not who is in paramount occupation of the station, within whose confines the premises in question are situate, but who is in paramount occupation of the particular premises in question.
+He also commented on the example of lodgers in a lodging house, mentioned by Lord Herschell, which he regarded as exceptional and largely the product of practical considerations, adding: But it can I think be justified and explained when we remember that the landlord, who is the person held to be rateable, is occupying the whole premises for the purpose of his business of letting lodgings, that for the purpose of that business he has a continual right of access to the lodgers rooms, and that he, in fact, retains the control of ingress and egress to and from the lodging house, notwithstanding that the power of ingress and egress at all hours, is essential to the lodger.
+The general principle applicable to the cases where persons occupy parts of a larger hereditament seems to be that if the owner of the hereditament (being also in occupation by himself or his servants) retains to himself general control over the occupied parts, the owner will be treated as being in rateable occupation; if he retains to himself no control, the occupiers of the various parts will be treated as in rateable occupation of those parts. (p 530)
+He referred to this as the landlord control principle, and having discussed its application to other cases, such as docks, he summarised the position: In truth the effect of the alleged control upon the question of rateable occupation must depend upon the facts in every case; and in my opinion in each case the degree of the control must be examined, and the examination must be directed to the extent to which its exercise would interfere with the enjoyment by the occupant of the premises in his possession for the purposes for which he occupies them, or would be inconsistent with his enjoyment of them to the substantial exclusion of all other persons. (p 532)
+Lord Wright MR, in his concurring judgment, also distinguished the lodging house cases: the position of the lodger is authoritatively explained by Lord Hatherley in Cory v Bristow ([(1877)] 2 App Cas 262, 276).
+Although, he says, a lodger may have the exclusive use of the chambers he occupies, still there is a concurrent right reserved by the person who lets the lodgings, of using the lodging house for whatever purposes he may think fit for managing the establishment and all purposes connected with it.
+In other words the landlord occupies his premises and uses them for his business of keeping lodgers.
+Such a case is far removed from the case of the tenants here, who occupy their shops in order to carry on their business . (p 556)
+As illustrations of the application of these principles in wholly different factual situations, reference has been made to two Court of Appeal decisions: i) In Wimborne District Council v Brayne Construction Co Ltd [1985] RA 234, contractors were engaged by the owner of a fish farm to excavate lakes and ponds on an area underlain by deposits of gravel.
+They engaged subcontractors who paid a royalty to the contractors for any gravel taken.
+It was held that the subcontractors were in rateable occupation because their occupation was exclusive for the particular purpose of winning the gravel, and not interfered with by the contractual control exercised by the contractors.
+Mr Morshead for the Valuation Officers relies on Lloyd LJs suggestion (at p 243) to reconcile the concepts of exclusive and concurrent occupation: Another way of explaining the difficulty might be that an occupier, in order to qualify for rateable occupation, has only to be in exclusive occupation for his own particular purposes.
+This does not exclude others from occupying the same hereditament for their particular purposes.
+Paramountcy is a way of choosing between exclusive occupiers in that sense.
+The degree of control exercised by one occupier over the other, or by a third party, seems to be relevant to both questions Sir George Waller added (p 247): In my opinion, in the phrase the particular purposes of the possessor, the word particular is to emphasise the work that the possessor is doing selling newspapers and not running a railway in the Southern Railway case; the carrying out of the contract in Laings case.
+In this case also, the particular purpose of the subcontractors was the carrying out of the contract, ie excavating the gravel.
+So far as the subcontractors were concerned, while no doubt the ultimate objective was to enable the contractors to complete the construction of the ponds, the particular purposes of the subcontractors were the excavation of gravel. ii) Vtesse Networks Ltd v Bradford (Valuation Officer) [2006] EWCA Civ 1339; [2006] RA 427 concerned a fibre optic telecommunications network consisting of pairs of fibres, encased within the cables and ducts owned by third parties, and leased to the ratepayer, Vtesse, for use in the transmission of its own signals.
+The network was held to be a hereditament of which Vtesse was in rateable occupation.
+The Court of Appeal upheld the Lands Tribunals conclusion that Vtesse was in paramount occupation of the network, notwithstanding that the owner of the ducts controlled access to the fibres and was responsible for maintenance.
+Suggested analogies with the landlord lodger relationship were rejected.
+One other House of Lords case, London County Council v Wilkins (Valuation Officer) [1957] AC 362, is of assistance in showing how chattels may be relevant to the identification of a rateable hereditament.
+It was held that wooden or corrugated iron huts, used as offices, stores and a canteen on a building site, could be included in the rating list (the building site itself not being rated).
+The House rejected the argument that the structures were chattels and should not be rated for that reason.
+Lord Radcliffe said (p 378): No one supposes, of course, that a man is rateable in respect of the enjoyment of chattels as he is in respect of the occupation of land.
+But, on the other hand, I think that that is a long way from saying that the presence of chattels on land can never be a relevant factor either in determining the assessment of the rateable value of a hereditament or in determining whether there is a rateable occupation or not.
+In the present case it is not in dispute, as I understand it, that in appropriate cases chattels may be taken into account in defining the land to be included in the hereditament.
+In the case of the ATMs, however there is however an issue as to whether that is compatible with their status as non rateable plant for valuation purposes under the special legislation relating to plant and machinery.
+The Bank of Ireland case
+To show how those principles have hitherto been applied to ATMs at tribunal or appellate court level, it is helpful to refer to a decision which is uncontentious, at least in its result.
+That is the decision of the Scottish Lands Valuation Appeal Court in Assessor for Central Scotland Joint Valuation Board v Bank of Ireland [2010] CSIH 91; [2011] RA 195.
+It related to a hole in the wall ATM in an outside wall of a sub post office.
+The court distinguished an earlier case, in which it had been decided by the same court that free standing ATMs inside various supermarkets and shops, to which the public had access only from within the premises, were not separately rateable (Clydesdale Bank plc v Lanarkshire Valuation Joint Board Assessor for Lanarkshire 2005 SLT 167).
+To illustrate the factors which have hitherto been regarded as relevant, it is worth setting out in full the reasoning of Lord Gill, as that of one of the most experienced judges in this field: [15] In my opinion, the crucial difference in this case is that there is no direct link between the ATM site and the operation of the sub post office.
+The ATM cannot reasonably be said to be one of the retail attractions provided in the sub post office for its customers.
+Where an ATM is sited within a retail store, it is reasonable to infer that its primary purpose is to provide a facility for shoppers enabling them to access cash in store in the course of shopping there.
+It is reasonable also to infer that few users will go to the store solely to obtain cash from the ATM. [16] In this case, however, although the ATM rests on the floor of the sub post office, the operative part of it from the users point of view is accessible only from outside.
+The ATM is therefore not an in store facility.
+Within the sub post office the site of it is in effect dead space.
+The ATM is intentionally provided for the use of the general public.
+For that purpose the building has been altered and adapted by the opening of an aperture in the glass frontage of the building in virtue of a planning permission and a building warrant.
+Furthermore, the usage of the ATM is entirely unrelated to the opening hours of the sub post office. [17] The sub postmaster has no access to the ATM site save for re filling and for simple first line maintenance, for all of which he receives a commission.
+Beyond that, he has no rights or duties in relation to the machine.
+Although Mr Morshead QC for the Valuation Officers criticised some of that reasoning as departing from the Southern Railway principles as he identified them, he did not question the actual decision.
+The Principle of Equality
+Mr Morshead urged that the approach of the Court of Appeal risked undermining a fundamental rating principle, the principle of equality.
+It meant that identical ATMs of adjacent High Street buildings would be treated differently depending on the use of the building.
+With respect, however, he seems to me to overstate the significance of the principle in these cases.
+It is already the position that identical ATMs in adjacent buildings may be treated differently.
+Lindblom LJ (para 1) recorded that in 2015 there were some 70,000 ATMs in the United Kingdom, most of them in bank premises.
+It seems clear that a typical hole in the wall ATM in the external wall of a high street bank is part of the same hereditament as the rest of the bank, and is no different in that respect from a similar machine within the bank.
+It is equally clear that an ATM in a building adjacent to the bank, for example a post office (as in the Bank of Ireland case) whose occupation has no direct link with the function of the ATM, may be treated as a separate hereditament.
+The present appeals are not about such fundamental issues of principle, but simply about where to draw the line, in cases where the functions of the ATM and of the host building are not wholly disconnected.
+General comment on the authorities
+I should add that, even in respect of authorities at the highest level such as those summarised above, there is a danger of over analysis.
+As Lord Sumption noted in Woolway v Mazars (supra at paras 1 to 4), the rating system has a very long history.
+As a fair and effective method of taxing property of all kinds, it has proved remarkably resilient and adaptable to technological developments and new forms of property.
+However, although the core concepts are well understood, they have not always proved susceptible to precise formulation, as indeed he observed of the term hereditament in that case.
+The same may be said of the concepts of paramount and subordinate occupation, which are at the heart of the second issue in these appeals.
+The underlying principles were authoritatively laid down in the Halkyn case.
+The notable length of the leading speeches in Southern Railway can be attributed to the attempts of their Lordships to develop those principles by drawing together the threads of a wide range of decided cases relating to disparate factual circumstances, not all readily reconcilable with each other.
+Inevitably in such an exercise, as anyone who has attempted the task will know, some tensions and inconsistencies are likely to arise.
+It may be misleading to extract particular statements, and to treat them as definitive propositions of law, without regard to their overall context.
+Further, as Lord Russell was at pains to emphasise, the principles as stated by him provide no more than a framework for the evaluation of the facts of any particular case.
+Identifying the hereditament
+The first issue is whether the sites of the ATMs are capable of identification as separate hereditaments.
+As the Upper Tribunal explained (para 115) there were two aspects to the arguments under this head: [The retailers] submitted first that the boundaries of a hereditament could not be defined by reference only to the presence of a piece of machinery which was not itself liable to be rated.
+If the ATM was ignored there was nothing to identify the area said to constitute the hereditament, as it was otherwise indistinguishable from any other part of the floor area of the host store.
+Secondly, it followed from the inability to define the area of the purported hereditament that the geographical test in Woolway v Mazars could not be satisfied.
+On both issues the Upper Tribunals reasoning and conclusions were approved by the Court of Appeal.
+I take the two aspects in turn.
+Non rateable plant
+The first argument, which was developed in this court by Mr Kolinsky QC for the first respondent, arises from the Valuation for Rating (Plant and Machinery) (England) Regulations 2000 (SI 2000/540), under which the ATM is left out of account for valuation purposes.
+Regulation 2 provides that in assessing the hypothetical rent for rating purposes, other than in respect of plant or machinery within the classes set out in the Schedule to these Regulations: (b) the prescribed assumption is that the value of any plant and machinery has no effect on the rent to be so estimated.
+An ATM does not fall within any of the classes set out in the Schedule, and it must therefore be assumed to have no effect on the rateable value of the hereditament on which it is sited.
+Items within paragraph (b) are sometimes described as non rateable plant, but that is no more than a term of convenience.
+On its face the Regulations are concerned solely with issues of valuation, not issues of rateability such as those raised by the appeal.
+However, it was argued that the ATM, being non rateable plant, must be disregarded for all purposes, including for the identification of the hereditament.
+This argument was supported by reference to a number of authorities, but most particularly to the decision of the House of Lords in Kennet District Council v British Telecommunications [1983] RA 43.
+The issue there was whether BT was in rateable occupation of two telephone exchanges while they were being fitted out with machinery and were not yet ready to be used as exchanges.
+The machinery was non rateable plant under the then current legislation (the predecessor of the 2000 Regulations).
+The House of Lords upheld the finding that BTs business purpose was the housing of telephone equipment, and the exchanges were used for that purpose once the first equipment was moved in.
+There had been an argument that the equipment was an essential part of the telephone exchange, which was thus incapable of beneficial occupation until the equipment was fully installed.
+It was in rejecting that argument that Lord Keith of Kinkel had used the words on which Mr Kolinsky relies.
+Having observed that the hereditament was the land with the building on it, and did not include any part of the plant and machinery in it, Lord Keith said (at p 46): The subsection provides that it is for the purposes of valuation that plant and machinery within para (b) is to be left out of account, but it must, I think, follow that it is impossible to treat such plant and machinery as part of the hereditament for any rating purpose, even though it be so fixed or attached that it would have fallen to be valued as part of the hereditament under the law prevailing before the statutory ancestor of section 21 was enacted in the form of section 24 of the Rating and Valuation Act 1925.
+Nothing can be rated which is not capable of being valued for the purposes of rating, and nothing which is not so capable can be the subject of rateable occupation.
+So it was rightly conceded by counsel for the respondents that the hereditament in issue here was land with the bare shell of the building on it, excluding all of the equipment therein. (Emphasis added)
+Mr Kolinskys argument, as the Upper Tribunal noted (para 122), was that, if the ATM could not be treated as part of a hereditament for any rating purpose, it must also be ignored in deciding whether the site on which it is placed is a separate hereditament.
+Against that Mr Morshead had argued that such a wide interpretation of Lord Keiths words was not consistent with statutory provision, and was contradicted by the decision itself, which did in fact treat the equipment as relevant to the issue of rateable occupation.
+The Upper Tribunal also referred (para 123) to Edmondson v Teesside Textiles Ltd (1984) 83 LGR 317, in which Oliver LJ had explained the specific nature of the argument which Lord Keith had been addressing.
+The finding that the hereditament was the building alone did not require it to be assumed that the equipment had been magically removed leaving an empty building.
+The Upper Tribunal agreed that neither Kennet nor any of the other authorities relied on was of assistance, since: each concerned a building whose boundaries clearly defined the extent of the relevant hereditament, the existence of which was not in doubt.
+They concluded: In principle, therefore, we consider that the presence of an item of non rateable machinery, such as an ATM, should not be ignored when determining whether a separate hereditament exists.
+The statutory assumption applies only for the purpose of valuation and may not legitimately be applied in answering the logically prior question of whether there is or is not a hereditament which needs to be valued. (paras 124 126) In the Court of Appeal, Lindblom LJ agreed in substantially similar terms (paras 45 50).
+Since I agree with both, and without disrespect to Mr Kolinskys attractive restatement of the arguments in this court, I am content to adopt their reasoning without further explanation.
+Defining the hereditament
+On the second aspect the principal argument for the retailers, as the Upper Tribunal noted (paras 127ff), relied on the observation by Lord Neuberger of Abbotsbury in Woolway v Mazars (para 47) referring to a hereditament as: a self contained piece of property (ie property all parts of which are physically accessible from all other parts, without having to go onto other property) It was argued (on behalf of Tesco and Cardtronics) that the site of an ATM did not satisfy this description because it was not self contained, and it was unusable without extensive use of the adjoining parts of the host store for servicing and for access by the public.
+Against that it was argued for the Valuation Officers that in this respect the ATM sites were no different in principle from separate shop units in a shopping centre which would undoubtedly qualify as separate hereditaments even though dependent for some purposes including access on other parts of the shopping centre.
+The Upper Tribunal agreed; as they said: Once a machine has been installed there should, in our view, be no difficulty in defining the boundaries of a fixed ATM site with sufficient precision to satisfy the geographic test of self containment. (para 130)
+They distinguished these cases from Clydesdale, in which the bank had been given a right of access to a more or less free standing moveable machine placed in a location chosen by the store from which it could be readily moved.
+They added: The deliberate creation of a specific space in a fixed and apparently permanent location, visibly different from the generality of the host store and clearly intended for a particular use, is sufficient to differentiate most of these cases from the arrangements considered in Clydesdale.
+In such cases enhanced security, visibility and permanence all contribute to the separation and identification of the unit. (paras 135 136)
+As already noted, they took a different view of the moveable ATM at Tescos Nottingham store.
+They described it as follows: On the first floor of the Nottingham store is a third ATM, which stands in a corner adjacent to a caf and customer toilets.
+The store itself has not been adapted to receive this machine, which could be unbolted from the floor and moved without difficulty to the ground floor lobby or to a different part of the retail area.
+The ATM is housed in a large metal cupboard, about 2 metres tall and 1.5 metres deep, which can be rolled forward to create a secure working area at the front of the ATM from which it can be serviced and replenished.
+Although this arrangement is slightly more substantial than some entirely free standing ATMs, its essential qualities are impermanence and mobility.
+We do not regard the space occupied by the machine from time to time as a unit of property separate from the remainder of the store. (para 143)
+They concluded as follows on this aspect: We are therefore satisfied that each of the appeal sites, with the exception of the first floor site at Tescos Nottingham store (where the machine is free standing), is capable of being the subject of a separate entry in the rating list.
+With that single exception, each site is more than just an indistinguishable space on the shop floor which happens to be occupied by an ATM; in each case the site has either been designed or adapted to accommodate such a machine.
+We are satisfied that the physical characteristics of a site, rather than incidental details of access or servicing arrangements, justify treating it as a potential hereditament.
+There are inevitably borderline cases (Cardtronics machine at Harefield, and Tescos at Walsall being closest to the boundary), but a clear distinction can be drawn between the space occupied by free standing machines on the one hand and specific sites which have been designed or adapted for the purpose on the other.
+That distinction is practical and appropriate to a tax on property, it is consistent with the Scottish jurisprudence and it provides a clear answer to the first issue for each of the appeal sites. (para 151)
+The Court of Appeal reviewed the Upper Tribunals reasoning and the opposing arguments at some length (paras 51 57) but in the end endorsed the Upper Tribunals approach, including the exception made for the moveable ATM, as faithful to the tests in Woolway v Mazars, and unimpeachable in its findings of fact (para 58).
+Again, although the main arguments were rehearsed in similar form in this court, I am content on this issue also to adopt the reasoning of the judgments below.
+I should note Mr Morsheads attempt to persuade us that the Upper Tribunal had been wrong to distinguish the Nottingham ATM, which though described as moveable was not regularly moved in practice.
+The tribunal had failed to consider the only relevant question, which was whether the occupation was so transient as to lack the necessary quality of permanence required by the Laing tests.
+However, that point seems to me sufficiently answered by the Upper Tribunals finding that the essential qualities of this ATM were impermanence and mobility.
+That was a finding of fact open to them.
+Like the Court of Appeal, I see no error of law in their approach.
+Rateable occupation
+I turn to the second issue, whether the retailer or the bank was in rateable occupation.
+This proved to be the most contentious issue below, and the only one on which there was a significant difference between the tribunal and the Court of Appeal.
+Both judgments deal with this issue at considerable length, in the course of which the relevant authorities and respective arguments are fully discussed.
+To avoid overburdening this judgment, I have consigned my (selective) account of their findings to an Appendix.
+I am grateful for this valuable groundwork which makes it possible to narrow down the scope of the investigation, and to concentrate on what seem to me the critical points of contention.
+At the heart of the submissions for the retailers, as I understand them, is the relationship between the service provided by the ATMs and the general retail business of the store.
+From their point of view, the ATM service is not a distinct business activity, but an integral part of the business activity of the store.
+It is, they say, one of the typical services provided at a modern retail store, and so regarded by their users.
+It is no different from other common facilities in such stores, such as photo booths, or coin change machines.
+It would be difficult to suggest that the sites of such individual services, at least if operated by the retailer, would be separately rateable.
+That relationship, they submit, is not altered by fact that for regulatory reasons the ATM is operated by a separate banking company.
+Such a situation they say is clearly distinguishable from cases such as Southern Railway or Wimborne.
+Selling newspapers was no part of the railway companys business; nor was commercial digging for gravel part of the business of the fish farm.
+Issues such as general control and interference as highlighted by Lord Russell may of course be important in the context of what he called rival occupations.
+By that I think he meant, not rivals in any commercial sense, but simply distinct business activities (selling newspapers or running railways in Southern Railway), and as such competing candidates for identification as paramount occupiers.
+Here by contrast there is of course no rivalry, and no question of any control exercised by the retailer interfering with the operations of its banking arm in respect of the ATM machines, since they share a common interest in their success.
+Their purpose is rather to facilitate that operation.
+However, the underlying principle remains that stated by Lord Herschell in Halkyn: Where a person already in possession has given to another possession of a part of his premises, if that possession be not exclusive he does not cease to be liable to the rate, nor does the other become so Thus in a case such as the present one starts from the position, as recognised by the unamended rating list, that the retailers were in exclusive occupation of their stores.
+One then asks how that has been affected by the transfer of operation to an associated company, and the limited possession given of the ATM sites, and whether nonetheless the occupation of the store owner remains paramount a concept which Lord Herschell chose to illustrate by reference to the familiar case of a landlord and his lodger.
+The retailers argue that, like the landlord, the retailer retains control of the whole premises and the ATM remains part of the overall business.
+Mr Morshead criticises the retailers approach for departing from what he calls the core principle derived from Lord Russells speech in the Southern Railway case as to the identification of the person who has paramount control of the area in question.
+That question is to be approached, he says, as in the Southern Railway case itself, by focussing on the particular sites in question (the bookstalls or showcases in that case, or the ATM sites in this), and asking whether the degree of control exercised by the host interferes with the enjoyment by the ATM operator of the site of the ATM for the purpose for which it is occupied, to the substantial exclusion of all other persons.
+Thus in that case, although the railway company retained a degree of control over each individual area, that control did not interfere with the enjoyment by each operator of that space for its own purpose.
+In the present cases, similarly, none of the factors identified by the Court of Appeal constitutes any interference by the host with the occupation by the bank for the purpose for which the bank occupies the ATM site, which is for the provision of ATM services.
+Rather the presence of the bank through its ATM excludes the host from any occupation of the ATM site for the same purpose, and excludes the host from any beneficial occupation of the ATM site for any other purpose, including the retail purpose which it conducts elsewhere in the store.
+I am with respect unpersuaded by Mr Morsheads analysis.
+While his analysis can perhaps be supported by a strict application of Lord Russells words, it sits uneasily with Lord Herschells approach, and in particular his comparison with the landlord lodger example.
+The lodging house has always been treated as a single hereditament in the occupation of the landlord, even though his control of the premises does not interfere with, but rather supports, the enjoyment by the lodgers of their own rooms for their own purposes.
+Mr Morshead appears implicitly to acknowledge this tension.
+His answer to that is in Lord Russells reference to the principle as exceptional and based on practical considerations.
+In the light of that, Mr Morshead submits that the landlord lodger example is anomalous and should not be extended: the lodger principle has no independent contribution to make to this area of the law.
+Whatever contribution it once had to make in this field has been fully absorbed, and fully expressed, in Southern Railway.
+I find that difficult to accept.
+The principle was long established by the time of Lord Herschells reference.
+He would hardly have described it as familiar, or have used it as his example of paramount and subordinate occupation, if he thought it in any way anomalous.
+It is true that Lord Russell appears to have had reservations about the principle, but he felt able to justify it by reference to the fact that the landlord would be occupying the whole premises for the purpose of his business of letting lodgings.
+Lord Wright also referred to the landlord lodger example, without suggesting that it was exceptional or anomalous; as he said the landlord occupies his premises and uses them for his business of keeping lodgers.
+occupation of the ATM sites: In the present case the Upper Tribunal has found that the retailers retained The Store has not, in any of these cases, parted with possession of the site of the ATM, but it has agreed to confer rights on the Bank which substantially restrict the Stores use of that small part of its premises which comprises the ATM site.
+The Store has agreed to that restriction because the presence of the ATM furthers its own general business purposes and because the operation of the ATM by the Bank provides the Store with an income. (para 169)
+I agree with the Court of Appeal that this was a finding which they were entitled to make on the evidence.
+Further at para 176, although they may perhaps have read more into the concept of rivalry than Lord Russell had intended, they were clearly right to reject it as of any relevance in these cases, and entitled to find in respect of the retailers and the banking companies that: Both parties derive a direct benefit from the use of the site for the same purpose and share the economic fruits of the specific activity for which the space is used.
+This in my view was sufficient to support their conclusion, affirmed by the Court of Appeal, that the sites of the internal ATMs remained in the occupation of the retailers.
+It is necessary however to consider the Upper Tribunals reason for treating the external machines differently.
+This appears most clearly from the following passage: Although obviously the Bank and the Store have a mutual interest in providing ATM services, and both derive a benefit from the presence of the machines, where the parties have chosen to make the service available to all, and at all times, and have physically separated the ATM from the facilities offered within the Store, we consider it is right to treat the primary purpose of the occupation of the site of the machine as being a purpose of the Bank.
+The Banks occupation for that purpose is exclusive: only one machine can be accommodated on the site and in each case the arrangements between the Store and the Bank provide that only the Bank is to have the right to locate such a machine in the Store. (para 185)
+With respect, I find that distinction difficult to understand.
+Like Lindblom LJ (para 96), I do not see that the factors identified by the tribunal support the conclusion that: where the retailers and the banks purposes in providing an ATM in a store are either the same or closely aligned, the retailer remains in occupation and possession of the ATM site, and the contractual, physical and functional arrangements are as they were here, an internal ATM site is in the paramount occupation of the retailer, but an external site is in the paramount occupation of the bank.
+I agree with the Court of Appeal that the Upper Tribunal erred in law by taking an unduly narrow approach.
+The only differences identified by them were the fact that the external ATMs were available to a wider market and at all times, and physically separated from the other facilities in the store.
+However these factors did not detract from their finding that the retailer remained in occupation of the ATM site, nor did they suggest that it was any less part of the retailers overall business.
+As Lindblom LJ said (para 93), this was in stark contrast with the independent uncontrolled occupation by the bank for the purposes of the banks business and the absence of a direct link with the Post Office use, as found in the Bank of Ireland case (see para 24 above).
+The difference is no greater in principle than that between internal and external ATMs in a bank building.
+No one, I think, would suggest that in that case the external ATM should be treated as a separate hereditament.
+On this issue also I consider that the retailers analysis is correct in law and should be supported.
+Conclusion
+In this appendix I set out what seem to me the principal points from the 1. treatment of this issue by the Upper Tribunal and the Court of Appeal.
+The Upper Tribunal 2.
+In their discussion of this issue, the Upper Tribunal began (paras 161 168) by referring to the Scottish cases, in particular Clydesdale and Bank of Ireland, which, contrary to the view of the Valuation Tribunal, it regarded as faithful to the principles in Southern Railway.
+In the Upper Tribunals view, the sole modification made by the Scottish court to the approach taken in Southern Railway concerned the value of control as a means of resolving the issue of paramount occupation.
+As the Upper Tribunal explained: In this very different factual context, where occupiers are not truly rivals but are both deriving a direct benefit from the same use of the subjects it regarded the question of control . as essentially subordinate to the broad question of purpose.
+That seems to us to be an unobjectionable refinement of the approach to paramount occupation where the circumstances do not justify treating concurrent occupiers as deriving different benefits from the use of the same unit of occupation. 3.
+They also accepted the retailers argument that, in respect of both internal and external machines, the floor space on which an ATM stands may be regarded as occupied both by the Store and by the Bank: The Store has not, in any of these cases, parted with possession of the site of the ATM, but it has agreed to confer rights on the Bank which substantially restrict the Stores use of that small part of its premises which comprises the ATM site.
+The Store has agreed to that restriction because the presence of the ATM furthers its own general business purposes and because the operation of the ATM by the Bank provides the Store with an income. (para 169) They cited Lord Russells statement that what matters is the position and rights of the parties in respect of the premises in question, and the purpose of the occupation of those premises, not of the larger premises of which they form part; and to the extent that there is concurrent occupation to consider which partys possession is paramount and which subordinate (para 170).
+However, they found less assistance in his references to rival claimants to the occupancy or to the issues of control and interference.
+They said: 176.
+We do not consider that it is generally helpful to characterise the Store and the Bank as rivals in their occupation of the site of an ATM.
+Both parties derive a direct benefit from the use of the site for the same purpose and share the economic fruits of the specific activity for which the space is used.
+In smaller stores it may be easier to detect an element of rivalry or competition associated with the presence of an ATM, despite the shared interest in providing the machine, because relative to the area of the store as a whole the potential sales space taken by the ATM is much greater than in a larger store.
+But even in the case of a small store we regard the concept of rivalry in occupation as artificial and unhelpful when considering which partys occupation of an ATM site is rateable. 177.
+When considering rateable occupation in the context of a complementary activity like the provision of an ATM, we do not regard control or interference as particularly relevant considerations either.
+Clearly where a segregated secure room has been created to accommodate the handling of cash, a high degree of security is to be expected.
+It suits the purposes of both the Bank and the Store for there to be very limited access to such a room, but there is no suggestion that the mutually beneficial security arrangements in place deprive the Bank of access which it would otherwise wish to have to enable it to operate its ATM facilities.
+The restrictions in place should therefore be seen as facilitating the Banks enjoyment of the site, rather than as interfering with it.
+Instead they preferred to consider the purpose of the occupation in question, 4. in respect first of the external ATMs: 179.
+We find it more helpful to consider the purpose of the occupation of the site in the light of the decisions the parties make about the manner in which the space dedicated to ATMs will be used.
+We regard it as significant that, by design, the target market of an external ATM is much broader than the retail customers of the store.
+An external ATM is not only physically remote from the generality of the retail offer of the store, as it was described, but its purpose is also distinctively different.
+It is to reach as wide a market for ATM services as possible, rather than to restrict usage to those who have entered the Store to make use of facilities only available to customers of the Store.
+They accordingly agreed with the approach exemplified by the decision in Bank of Ireland, that external ATMs available to the public at large should not be regarded as an in store facility (para 181).
+They then considered whether a different approach was required in respect of ATMs in small convenience stores but reached the same conclusion (paras 182 184). 5.
+Their overall conclusions in respect of external ATMs were stated thus: 185.
+Having regard to the broad customer base at which the service of an external ATM is targeted, the distinct character and branding of the space and the security arrangements associated with its use, the practical impossibility of the Store making any different use of the same space while it is occupied by the Banks ATM, and the inconvenience and impracticality of the machine being removed to a different location, we consider it to be realistic and workable to regard the Bank as being in paramount occupation.
+Although obviously the Bank and the Store have a mutual interest in providing ATM services, and both derive a benefit from the presence of the machines, where the parties have chosen to make the service available to all, and at all times, and have physically separated the ATM from the facilities offered within the Store, we consider it is right to treat the primary purpose of the occupation of the site of the machine as being a purpose of the Bank.
+The Banks occupation for that purpose is exclusive: only one machine can be accommodated on the site and in each case the arrangements between the Store and the Bank provide that only the Bank is to have the right to locate such a machine in the Store. 6.
+However, they reached a different view in respect of the internal ATMs: 190.
+We consider that the sites of these internal ATMs are in the paramount occupation of the Store, and not the Bank.
+The service is primarily offered to shoppers in the store, and is not aimed at attracting passing trade (although no doubt there will be occasions when someone who wishes to use an ATM and is aware of its presence inside a store may make an incidental purchase).
+The purpose of the Banks occupation of the site is to provide a service to the Stores customers, which is also the purpose of the Stores occupation of the whole of the premises including the site.
+By its control of the opening hours of the premises the Store limits the use which may be made of the ATM by the Bank.
+We do not think it is appropriate to make any distinction between the normal arrangement where access for all purposes is from within the store and the arrangement at Tescos store in Rugby where, for servicing, access to the room which houses the machine itself is from outside the store. 191.
+An internal site, even one which has been designed or adapted to house an ATM, is likely to be more easily relocated elsewhere in the store than an external hole in the wall site.
+The space vacated by an internal ATM is also likely to be more readily usable for an alternative purpose (the recess in which the machines at Walsall are housed could equally accommodate the vending machines, display cabinets or recycling bins seen in other photographs of Tesco stores). 192.
+These considerations are sufficient, in our judgment, to justify treating the Store as the party in paramount occupation of the site of an internal ATM.
+The Court of Appeal 7.
+Having summarised the relevant principles of law, which he described as well established, familiar and complete (para 83), Lindblom LJ pointed to the Upper Tribunals finding (at para 169) that: in each instance here the retailer had not parted with possession of the ATM site and had remained in occupation of it, sharing actual occupation with the bank, that retailer and bank were not rivals in their occupation of the site, and that they were using it for the same purpose Having regard to that finding he saw no justification for the Upper Tribunals conclusion that the bank rather than the retailer was in paramount occupation of an external ATM as the paramount occupier (para 85).
+He continued: 87.
+I think there is force in the submission [for the retailers] that where the owner has given up neither possession nor actual occupation of the site in question, where the purpose for which that site is occupied in this instance, the operation of an ATM is a common purpose with that of the other party in occupation and is of direct benefit to the owner, and where the owner retains physical or contractual control over the site to realize that benefit and this can be demonstrated by objective evidence, the principle of general control applies, in the normal way.
+Rateable occupation is not resolved in such a case by weighing one partys purpose against anothers.
+General control remains the decisive factor in establishing who is in rateable occupation of the site.
+There is no need for a further test to be imposed to gauge which of two purposes is the dominant or primary purpose, or for the general control principle to be subordinated or made subject to such an enquiry.
+Such a test is not prescribed in the jurisprudence.
+And in my view it is neither necessary nor appropriate to resort to it as a means of resolving the question of rateable occupation 88.
+On a straightforward application of the general control principle, in the light of the facts the Tribunal accepted, the correct answer seems to me to have been that the retailer, as owner, had in all these cases both internal and external ATM sites retained sufficient control of the site, in contractual, physical and functional terms, to be regarded as being in rateable occupation of it. 8.
+Lindblom LJ referred to the undisputed evidence that: the ATMs the retailers had chosen to have sited in their stores, whether inside the store or in an external wall, enhanced their stores retail offer by adding to the range of services available at the store; that some at least of the stores had been either designed to accommodate an ATM or physically adapted to accommodate it; that access to the ATM for regular servicing, maintenance and loading could only be achieved from within the store, and with the retailers co operation or consent (para 92) He noted also the Upper Tribunals acceptance that: [both] parties bank and retailer derive a direct benefit from the use of the [ATM] site for the same purpose, and share the economic fruits of the specific activity for which the space is used. (para 176) He contrasted the position in the Bank of Ireland case: The banks shared occupation of the ATM site with the retailer, the retailers continued possession of that site, and the fact that the retailer had, as the Tribunal also found (in para 169), agreed to restrict its own use of the site because the presence of the ATM furthers its own general business purposes , are in stark contrast with the independent uncontrolled occupation by the bank for the purposes of the banks business and the absence of a direct link, as was found to be so on different facts in Bank of Ireland .
+There, on the evidence, the synergy one sees in this case was lacking.
+Here the retailers remained in occupation and possession of the ATM sites in their stores, the banks had not been given exclusive possession for their own purposes, the relevant purpose of the banks and the retailers was the same, and the retailers had retained general control over those sites in the relevant sense (para 93).
+He concluded accordingly that the Upper Tribunal had been wrong to hold that the sites of external ATMs should be entered as in separate rateable occupation (para 94).
+The same criticism did not apply to its treatment of the internal sites, in respect of which its conclusions were consistent with previous decisions, but did not validate its approach to the external sites: They do not justify the conclusion that, where the retailers and the banks purposes in providing an ATM in a store are either the same or closely aligned, the retailer remains in occupation and possession of the ATM site, and the contractual, physical and functional arrangements are as they were here, an internal ATM site is in the paramount occupation of the retailer, but an external site is in the paramount occupation of the bank.
+In short, it is not clear from the Tribunals decision how the application of the principles established in the authorities, including the principle of general control in Westminster Council v Southern Railway Co, could properly lead to that result. (para 96) 9.
+The Court of Appeal accordingly allowed the retailers appeals in respect of the external ATMs and dismissed the Valuation Officers appeal in respect of the internal sites.
+For all these reasons I would dismiss these appeals by the Valuation Officers and uphold the order of the Court of Appeal.
+Appendix Rateable Occupation
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+This appeal raises two important questions, one procedural and the other substantive, arising out of the decision of a planning inspector under the Planning (Listed Buildings and Conservation Areas) Act 1990 (the Listed Buildings Act).
+It concerns the correct treatment of a pair of early 18th century lead urns (or finials), attributed to the Flemish sculptor John van Nost, each resting on a limestone pedestal of a slightly later date.
+The two vases, together in each case with its plinth, were described in the judgments below as the items.
+I shall do the same.
+There is no doubt as to their artistic significance, which led to them being sold at auction in 2009 for 55,000.
+There is however a dispute as to whether they were properly treated as buildings under that legislation; but also a prior question as to whether such a dispute could and should have been addressed by the planning inspector in the proceedings before him.
+Factual background
+The items were originally at Wrest Park in Bedfordshire, owned by the first Duke of Kent.
+According to the 2009 auction particulars Wrest Park was one of the grandest and most admired gardens established in England in the first part of the 18th century.
+Apparently, a large plan of the garden by John Roque in 1735 showed the items flanking the entrance to the gardens.
+They remained at Wrest Park until 1939, when it was sold by the then owner, Mr J G Murray, who took various items of statuary, including these items, with him to Coles Park, Buntingford in Hertfordshire.
+In 1954 55, following the death of Mr Murray, his estate was left to a trust, with his grandson, Major R P G Dill, as a lifetime beneficiary.
+In 1955 56, under Major Dill, Coles Park was sold and he took the items with him to the Dower House, Buntingford.
+Major Dill sold the Dower House in 1962, when he moved to Badgers Farm, Idlicote, Warwickshire, again taking the items with him.
+In 1973 he sold Badgers Farm and moved to Idlicote House.
+He again took the items with him and placed them on either side of a path in the gardens which had served as the front drive to the house since the 1820s.
+No alteration was made to the garden design to accommodate the items, which were free standing.
+The piers were not attached to the ground and the urns were not attached to the piers.
+In 1966 Idlicote House had been designated a Grade II listed building.
+In June 1986 the items were themselves added to the list under section 54 of the Town and Country Planning Act 1971.
+Each was described as follows in both of the list entries: Pier surmounted by urn C18.
+Limestone and lead.
+Square pier with panelled sides, moulded stone plinth and chamfered cornices.
+Lead urn is decorated with high relief cherubs heads and flame finial.
+The listing decision and paperwork on which it was based have not been found despite enquiries.
+Although notice of the listing was required to be given to the owner or occupier by the local planning authority, there appears to be no extant record of such a notice.
+However, in January1987 (six months after listing the delay has not been explained) the items were entered on the local land charges register.
+The present owner, Mr Marcus Dill, acquired the house and the items in 1993.
+He was not aware of the listing of the items, and does not understand that his father, Major Dill, was aware of it.
+In 2009 he removed and arranged for sale of the items at auction.
+English Heritage was notified in advance and was sent the auction catalogue (as a potential purchaser) but did not respond.
+It is understood that they have since been removed from the United Kingdom.
+As to the physical qualities of the items, and the method of removal, I take the following (which I do not understand to be contentious) from Mr Dills statement in the planning appeal: The piers consist of limestone pedestals of a slab rather than solid construction.
+Consequently they were not especially heavy.
+Together a pier and finial was 274cm high .
+At Idlicote House the pedestals were resting on concrete slabs which were on the ground.
+They were not fixed to the slabs.
+The finials were also sitting on the pedestals without any attachment.
+The top of the piers can be removed.
+When they were taken from Idlicote House the finials and the top of the piers were lifted together and then the remaining part of each pier lifted.
+The items were lifted onto a Hiab lorry by its crane.
+Procedural history
+In 2014 the local planning authority became aware that the items had been removed and began correspondence with Mr Dill.
+On 29 April 2015 they wrote to Mr Dill informing him that listed building consent had been required for their removal and threatening formal action.
+On 17 June 2015 Mr Dill made a retrospective application for listed building consent.
+This was refused by the local planning authority on 11 February 2016.
+In response to consultation on the application, Historic England had advised that the grounds for listing these structures were the same as for any listing, that is their special architectural and historic interest.
+They observed that: Many garden items (as well as structures such as buildings relocated in open air museums), including statues and urns have been listed after they have been moved because they still qualify under that definition.
+On 26 April 2016, the local planning authority issued a listed building enforcement notice requiring the reinstatement of the items at Idlicote House.
+Mr Dill appealed to the Secretary of State against the refusal of listed building consent and the enforcement notice on several grounds, including that the items were not buildings.
+The appeals were considered together by a planning inspector appointed by the Secretary of State, who gave his decision dismissing the appeals in a letter dated 19 January 2017.
+He took the view, in summary, that the status of the items as buildings was established by the listing; that he could not reconsider that issue; and, that issues of property law or the so called Skerritts tests of size, permanence and degree of annexation (see below) were irrelevant.
+The view that the status of the item as a building was not open to challenge was upheld by Singh J in the High Court ([2017] EWHC 2378 (Admin)) and by the Court of Appeal ([2018] EWCA Civ 2619; [2019] PTSR 1214).
+In the leading judgment, Hickinbottom LJ (with the agreement of McCombe and Coulson LJJ) held: In my view, the wording of the relevant provisions in the Listed Buildings Act make clear that it was the intention of the statute that, for the purposes of applications for listed building consent and enforcement (and appeals from the same), being on the list is determinative of the status of the subject matter as a listed building, the protection given by the Act deriving from that status. (para 33) He thought that view was supported by the statutory background, and was not displaced by any of the authorities relied on by Mr Harwood QC for Mr Dill.
+That conclusion made it unnecessary to consider the separate grounds relating to the correct test for categorisation of such items as buildings (paras 46 50).
+McCombe LJ (para 61), concurring, noted the possible conflict with the view expressed by him at first instance in Chambers v Guildford Borough Council [2008] EWHC 826 (QB); [2008] JPL 1459, but agreed with Hickinbottom LJ (para 38) that the real issue in that case was different.
+Two issues are agreed as arising before the Supreme Court, in short: i) Whether an inspector considering an appeal under section 20 or section 39 of the Listed Buildings Act can consider whether or not something on that list is a building. ii) (In so far as this issue arises) what criteria are relevant in determining whether an item appearing in its own right in the statutory list is a building for this purpose: whether concepts of property law (the extent and purpose of a structures annexation), or the criteria set out in Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and Regions (No 2) [2000] JPL 1025 (size, permanence and degree of annexation).
+Legislation
+The current statutory provisions are contained in the Listed Buildings Act.
+They are subject to minor variations in the same form as enacted in the Town and Country Planning Act 1968, and repeated in subsequent consolidations.
+For present purposes it is sufficient to refer to the current Act.
+Section 1(1) requires the Secretary of State to compile lists of buildings of special architectural or historic interest.
+Section 1(5) provides: In this Act listed building means a building which is for the time being included in a list compiled or approved by the Secretary of State under this section; and for the purposes of this Act a) any object or structure fixed to the building; b) any object or structure within the curtilage of the building which, although not fixed to the building, forms part of the land and has done so since before 1 July 1948, shall be treated as part of the building.
+Subsection (5A) enables the list to indicate that particular objects or structures mentioned in subsection (5)(a) or (b) are not to be treated as part of the building for the purposes of this Act; or that any part or feature of the building is not of special architectural or historic interest.
+In this judgment I shall refer to the second part of subsection (5) (and for the purposes of ) as the extended definition.
+I shall refer to objects or structures within paragraph (b) as curtilage structures.
+The word building is not separately defined in this Act.
+By section 91(2), except where the context otherwise requires, it has the same meaning as in section 336 of the Town and Country Planning Act 1990 which provides: Building includes any structure or erection, and any part of a building, as so defined, but does not include plant or machinery comprised in a building.
+Section 7 provides that no person shall execute or cause to be executed any works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest, unless the works are authorised under section 8.
+By section 9(1), if a person contravenes section 7, he shall be guilty of an offence.
+Section 8 provides for listed building consent to be granted by a local planning authority or the Secretary of State, and section 10 makes provision for the making of applications for such consent.
+Section 16(1) provides that the local planning authority or the Secretary of State may grant or refuse an application for listed building consent and, if they grant consent, may do so subject to conditions.
+By section 16(2), in considering whether to grant consent, the local planning authority or the Secretary of State: shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.
+Section 20(1)(a) confers the right to appeal to the Secretary of State against a refusal of consent by a local planning authority.
+By section 21(3): The notice of appeal may include as the ground or one of the grounds of the appeal a claim that the building is not of special architectural or historic interest and ought to be removed from any list compiled or approved by the Secretary of State under section 1.
+By section 22(1), on an appeal the Secretary of State may deal with the application as if it had been made to him in the first instance, and may exercise his power under section 1 to amend any list compiled under section 1 by removing from it the building to which the appeal relates.
+Section 20 appeals may be determined by a person appointed by the Secretary of State (in other words a planning inspector) who has the same powers as the Secretary of State.
+Section 62 provides: (1) Except as provided by section 63, the validity of [a decision on an appeal under section 20] shall not be questioned in any legal proceedings whatsoever.
+Section 63(1) provides for a challenge by way of application to the High Court on legal grounds.
+Section 38 confers a power on a local planning authority to issue listed building enforcement notices.
+Section 39(1) provides for an appeal from such a notice to the Secretary of State on any of the following grounds (so far as potentially relevant to this appeal): (a) interest; (b) section 9(1) have not occurred; that the building is not of special architectural or historic
+that the matters alleged to constitute a contravention of
+Section 41(6): that those matters (if they occurred) do not constitute (c) such a contravention; (d) ; (e) that listed building consent ought to be granted for the works, or that any relevant condition of such consent which has been granted ought to be discharged, or different conditions substituted; On the determination of an appeal the Secretary of State may (a) grant listed building consent for the works to which the listed building enforcement notice relates or for part only of those works; (b) ; (c) if he thinks fit, exercise his power under section 1 to amend any list compiled or approved under that section by removing from it the building to which the appeal relates.
+Section 64 provides: The validity of a listed building enforcement notice shall not, except by way of an appeal under section 39, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought.
+Section 65 gives a right to appeal to the High Court on legal grounds against a decision of the Secretary of State or inspector on an enforcement appeal under section 39.
+The first issue is designation as a listed building conclusive?
+Without disrespect to the courts below, I can deal with the first issue relatively shortly.
+The principles are not in doubt.
+As Mr David Elvin QC for the Secretary of State rightly accepts (in the words of his written submissions, citing Boddington v British Transport Police [1999] 2 AC 143): The issue of statutory construction is subject to the rule of law that individuals affected by legal measures should have a fair opportunity to challenge these measures and to vindicate their right in court proceedings, and there is a strong presumption that Parliament will not legislate to prevent individuals from doing so.
+The same principle is reflected in the European Convention on Human Rights article 6, under which an individual must have a clear, practical opportunity to challenge an act that is an interference with his rights: Bellet v France CE:ECHR:1995:1204JUD002380594, para 36.
+However, as Mr Elvin also correctly submits, that principle needs to be read in the context of the particular statutory scheme in question (citing Lord Hoffmann in R v Wicks [1998] AC 92, 117B).
+In the present scheme, he submits, identification as a building is not one of the matters that can be questioned through the statutory appeal route; but the right to challenge the validity of the listing by judicial review provides the fair opportunity required by the principle.
+Wicks is of particular relevance because it arose under the parallel enforcement provisions for breach of planning control.
+It concerned a prosecution for failure to comply with an enforcement notice for breach of planning control under the Town and Country Planning Acts.
+The relevant statute had a provision (in similar terms to section 64 of the Listed Buildings Act: see para 19 above) excluding challenges to the validity of an enforcement notice other than by the statutory appeal procedure.
+It was held that on a proper construction of the relevant provisions all that was required to be proved in the criminal proceedings for breach of an enforcement notice was that the enforcement notice issued by the local planning authority was formally valid, and that it was not open to the defendant to raise other public law challenges to its validity, such as bad faith, bias or procedural impropriety (residual grounds), by way of defence to the charge.
+In my view that authority if anything supports the appellants case.
+There was no issue but that the enforcement appeal could encompass every aspect of the planning case.
+As Lord Hoffmann said (p 122D): I do not think that in practice hardship will be caused by requiring the residual grounds to be raised in judicial review proceedings.
+The statutory grounds of appeal are so wide that they include every aspect of the merits of the decision to serve an enforcement notice.
+The residual grounds will in practice be needed only for the rare case in which enforcement is objectively justifiable but the decision that service of the notice is expedient is vitiated by some impropriety.
+As Keene J said in the Court of Appeal, the owner has been served with the notice and knows that he has to challenge it or comply with it.
+His position is quite different from that of a person who has contravened a byelaw, who may not have heard of the byelaw until he contravened it. (Emphasis added) If in that context fairness requires that the grounds of appeal should extend to every aspect of the merits of the enforcement action in planning cases, it is hard to see why it should be any different in the context of a listed building enforcement notice.
+In particular, as will appear from the cases considered later in this judgment, whether a particular structure constitutes a building, and its erection a building operation, is an issue which may undoubtedly be raised in the context of a planning enforcement appeal.
+As those cases show, it may raise difficult issues of factual judgement, which are much more appropriate for a planning inspector than for the High Court in judicial review.
+No convincing reason was offered as to why the question whether something qualifies as a building should be treated in a different way in the listed building context.
+One advantage of allowing these issues to be dealt with through the planning appeal route is that it enables the inspectorate, with appropriate legal advice, to develop workable criteria on a case by case basis.
+Mr Elvin points to the desirability of certainty as to the identification of listed buildings, which may have to be considered as material considerations in various statutory contexts.
+He cites for example Lord Hope of Craighead in City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447: The Act assumes, in regard to the statutory procedures, that the question whether or not the building is a listed building can be determined simply by inspecting the list which the Secretary of State has prepared.
+That of course is correct as a general proposition, but it says nothing about the circumstances in which a listing may be questioned.
+Similar uncertainty attaches to the possibility of a successful appeal (under ground (a)) on the grounds of lack of special interest.
+Against the desirability of certainty, is the fact that (unlike breach of planning control) contravention of listed building control is a criminal offence, whether or not an enforcement notice is served.
+In that context the starting point must be the presumption that the accused should be able to raise any grounds relating to the lawfulness of the proceedings on which the prosecution is based (see eg R v Wicks at p 106 per Lord Nicholls of Birkenhead).
+Furthermore, Mr Elvins argument overlooks the form of the statutory definition of listed building.
+A listed building means a building which is included in [the] list .
+Thus there are two essential elements: it must be both a building and it must be included in [the] list .
+If it is not in truth a building at all, there is nothing to say that mere inclusion in the list will make it so.
+Section 7 prohibits the demolition of a listed building, and section 9(1) makes contravention of section 7 a criminal offence.
+There is nothing to prevent the accused arguing that the item on the list is not a building and so not within the definition.
+Short of a specific provision that the listing is to be treated as conclusive for such purposes, there is no reason to displace the ordinary presumption that the accused may raise any relevant defence.
+Notably there is no equivalent to the exclusivity provision of section 64.
+If that is the case under section 9, then the same approach applies to the grounds of appeal under section 39.
+Under section 39(1)(c) the appellant can argue that the the matters alleged to constitute a contravention of section 9(1) do not constitute such a contravention.
+If there would be no contravention of section 9(1), because the relevant item is not a building, there is no reason why the same point cannot be taken under section 39.
+If that ground is made out on the facts, the Secretary of State has power to deal with the matter by removing it from the list.
+There might be a theoretical question whether this would operate retrospectively, so as to preclude any further action based on the original listing.
+However, I do not see that as a practical problem, given that there would be an authoritative decision by the Secretary of State to cancel the listing, specifically on the grounds that the items were not properly categorised as buildings.
+That would carry with it the clear implication that they should never have been listed in the first place, and should be sufficient in practice (if not in law) to protect the owner against any further proceedings.
+Accordingly, I would allow the appeal on the first issue.
+In principle (subject to consideration of the second issue), this means that the enforcement appeal must be remitted to the Secretary of State for redetermination.
+I am conscious that there is before us also an appeal in respect of the
+application for listed building consent.
+Although this may in theory raise different legal issues, I do not understand them to have any practical consequences in this case which cannot be dealt with in the context of the enforcement appeal.
+Subject to any submissions to the contrary, it should be possible to leave that aspect to be dealt with so far as necessary by agreement between the parties.
+The second issue were they buildings?
+On one view, if the appeal has to be remitted to the Secretary of State in any event, it might be better to leave the second issue for consideration at that level.
+However, there is in my view a need for more general guidance as to the legal principles in play.
+This case has revealed a disturbing lack of clarity about the criteria which have been adopted by the relevant authorities, not only in this instance but more generally, in determining whether free standing items such as these are regarded as qualifying for listing protection, whether as curtilage structures, or as separate buildings as in this case.
+Even now, in spite of the issue having been raised by Mr Dill in 2015, and after a planning appeal and three court hearings, he has had no official explanation of the criteria by which it was determined that these items qualified as buildings.
+It is useful to begin by looking at the wide variety of items which may fall to be considered, before going on to look at the development of the relevant legislation, and case law, and its application to different categories, including the items in issue in this case.
+Garden and Park Structures
+A good idea of the significance and variety of structures under potential consideration for listing purposes is given by a publication by Historic England Garden and Park Structures Listing Selection Guide (December 2017).
+This is one of 20 listing selection guides issued by Historic England, which has adapted and updated the selection guides originally issued by English Heritage in 2011.
+The Garden and Park Structures guide overlaps with other listing selection guides, including those for commemorative structures and for street furniture (including items such as fountains).
+The introduction explains its purpose: This selection guide is devoted to individual built structures found in gardens and parks, rather than the designed landscapes themselves All designed landscapes are likely to contain buildings and other hard landscaping features such as balustraded terraces that will often make a positive contribution to the overall character of the place.
+This selection guide helps identify which structures meet the test of special interest for listing. (p 1)
+The following pages contain a fascinating historical survey of the role of such structures in designed landscapes, parks and gardens since medieval times.
+It makes clear the extraordinary variety of objects or structures apparently considered for listing, by no means limited to features such as balustraded terraces.
+I take three examples: i) Wrest Park itself, as it was in the 19th century (p 5), is given as an example of reversion to the severely formal fashions of the 17th and earlier 18th centuries: with terraces, balustrades, vases, basins and fountains, elaborate steps and gateways, seats, summerhouses, and statuary.
+Some of these latter features, it is said, were industrially produced, moulded from terracotta, Coade stone, or cast iron.
+A photograph shows the restored parterre at Wrest Park, with formal planting and some large classical statues, which appear to be an intrinsic part of the design.
+We were informed by Mr Elvin that these are not fixed in place other than by their own weight, and are separately listed as buildings in their own right.
+On the same page, the guide also refers to raised terraces, which were sometimes decorated with elaborate flower urns.
+At p 10 the guide refers to statuary, urns and other features such as sundials and astronomical devices which adorned formal gardens; and at p 11 it states that even when these have been moved from elsewhere, pre 1850 examples will generally merit designation. ii) A more recent item is shown by a photograph of Henry Moores Reclining Woman (1947), at Dartington Hall, a large stone sculpture resting on a substantial stone base, said to be listed Grade II (p 7). iii) Perhaps the most unusual example is the group of 27 life size Crystal Palace dinosaurs (listed Grade I), survivors from an exceptional High Victorian pleasure ground created in the early 1850s, [which] show the singularity park features could sometimes attain. (p 18)
+Although the guide gives much useful information about the assessment of the historic interest of such objects and uses the word structures to describe them, it contains no discussion of the criteria by which they are to be treated as buildings within the statutory definition, nor in particular whether they are thought to qualify in their own right, or under the extended definition.
+I will return to this issue in the next section of this judgment.
+In considering the correct legal and policy approach to such garden and park structures, it is also important to bear in mind the limited protection available for the gardens and parks themselves.
+It was not until 1983 that there was any statutory recognition of the need to identify and safeguard historic gardens.
+Section 8C of the Historic Buildings and Ancient Monuments Act 1953, introduced by paragraph 10 of Schedule 4 of the National Heritage Act 1983, provided for the preparation by English Heritage of a register of gardens and other land situated in England and appearing to them to be of special historic interest.
+No doubt for practical reasons, there is no statutory protection for the garden layout itself nor any restriction on works within a registered garden, but being on the register may be required to be taken into account as a material factor in a range of planning decisions.
+There is no protection for garden and park structures as part of a registered garden as such.
+If the garden is attached to a listed building, they may be protected as curtilage structures, under the extended definition, but as part of the listed building, not of the garden.
+Identifying a building legislation and case law
+As has been seen, although listed building control has a long history, dating back before the Town and Country Planning Act 1947, the provisions were substantially recast in the Town and Country Planning Act 1968. (There is a detailed history in Shimizu (UK) Ltd v Westminster City Council [1997] 1 WLR 168, 175 per Lord Hope.
+That case itself was concerned with a relatively narrow issue relating to the scope of demolition and is of no direct assistance in this case.)
+Protection is given to buildings as defined.
+For this purpose, as already noted, the statute adopts the ordinary planning definition of building as including a structure or erection.
+The one significant variation comes in the extended definition, that is the provision that certain objects or structures are to be treated as part of the building, if they are either fixed to the building or within the curtilage of the building and form[ing] part of the land (subject, since 1986, to an exception for those placed since July 1948).
+It is important to note that the extended definition does not result in the item in question becoming a listed building in its own right; it merely results in its being treated as part of the building to which it is attached, or in whose curtilage it stands.
+That is to be distinguished from the circumstances in which a garden object or structure may qualify for listing as a building in its own right.
+Unfortunately, this critical distinction is blurred in the other official guidance to which we were referred.
+That is a Department for Digital, Culture, Media and Sport publication Principles of Selection for Listed Buildings (November 2018).
+This states: For the purposes of listing, a building includes any structure or erection and a listed building includes any object or structure: (a) fixed to it; or (b) within its curtilage which, although not fixed to it, forms part of the land and has done so since before 1 July 1948, unless the list entry expressly excludes such things.
+In some cases, such as for works of art or sculptures, it will be necessary to consider the degree and purpose of annexation to the land or building to determine whether it may be listed under the 1990 Act. (para 6) This acknowledges (rightly as will be seen) the relevance of the degree and purpose of annexation in considering whether a work of art or sculpture forms part of the land under the extended definition.
+But the second sentence might be taken to confuse that issue, relevant to whether the sculpture is to be treated as part of a building already on the list, with the distinct question whether the sculpture itself may be listed under the 1990 Act as a separate entry.
+This depends upon whether the sculpture constitutes a building, in the sense of being a structure or erection within the statutory definition, in relation to which the degree and purpose of annexation to the land may be relevant factors but are not necessarily conclusive.
+In what follows it will be convenient to consider first the application of the extended definition to free standing objects such as sculptures, before considering the criteria by which they might be treated as buildings in their own right.
+Garden objects or structures under the extended definition
+The extended definition, first introduced in the Town and Country Planning Act 1968, seems to have been designed to clarify the position following the case of Corthorn Land and Timber Co Ltd v Minister of Housing and Local Government (1966) 17 P & CR 210.
+Corthorn concerned a building preservation order made under section 30(1) of the Town and Country Planning Act 1962, prohibiting the removal from a listed building of various portrait panels, wooden panels, a large wood carving of the Crowning with Thorns, and a large wooden equestrian figure of St George and the Dragon.
+The issue was whether they were part of the listed building.
+In deciding that they were, Russell LJ applied a property law approach, saying: It is not, in my judgment, open to serious doubt that these items were all fixed and annexed in their places as part of the overall and permanent architectural scheme and intended in every sense to be annexed to the freehold (p 217) In Debenhams plc v Westminster City Council [1987] AC 396, 408 409 Lord Mackay of Clashfern confirmed that the word fixed in the extended definition was to have the same connotation as in the law of fixtures so that any object or structure fixed to a building should be treated as part of it, thereby put[ting] beyond question the matter that was decided by Russell LJ in the Corthorn case .
+Corthorn was not concerned with objects or structures within the curtilage of a listed building.
+We were not referred to any contemporary information as to the derivation of that part of the extended definition in the 1968 Act.
+It can be assumed to have been a recognition of the important part often played by such objects in the overall architectural composition or setting of a listed building, even though the architectural quality of the curtilage structure itself is not part of the test.
+The requirement that they should form part of the land is clearly designed to tie this part of the definition, like the first part, to real property concepts under the common law.
+It is not known what if any assumptions would have been made in 1968 about how the common law would treat statues or other ornamental objects resting only by their own weight.
+Reliance may have been placed on the then current edition of Megarry & Wade, The Law of Real Property, 3rd ed (1966) which stated: Statues, figures, vases and stone garden seats have been held to become part of the land because they are essentially part of the design of the house and grounds, even though standing by their own weight.
+This was supported by a footnote reference to DEyncourt v Gregory (1866) LR 3 Eq 382, but with a cautionary note: the authority of this decision is not great; see De Falbe [1901] 1 Ch 523, at 531, 532.
+Some years after the 1968 Act the treatment of such objects in real property law was considered by the Court of Appeal in Berkley v Poulett [1977] 1 EGLR 86.
+The dispute was about certain pictures and other objects which, it was said, should pass as fixtures on the sale of a house.
+The disputed items included a statue and sundial in the garden.
+The court was agreed that the sundial was a chattel, but there was disagreement as to the sculpture.
+Scarman LJ, in the leading judgment (pp 88 89), with which Stamp LJ in substance agreed (p 96), explained that, following Leigh v Taylor [1902] AC 157: The answer today to the question whether objects which were originally chattels have become fixtures, that is to say part of the freehold, depends upon the application of two tests: (1) the method and degree of annexation; (2) the object and purpose of the annexation.
+Having discussed the principles and the other objects in dispute, he turned to the statute and sundial.
+The latter was a small object which had been detached from its pedestal many years earlier and thus ceased to be part of the realty.
+Of the statue he said: The statue was heavy.
+It weighed 10 cwt and stood 5 ft 7 in high on its plinth.
+There is an issue as to whether it was cemented into the plinth or rested on its own weight.
+The question is not decisive, for, even if it was attached by a cement bond, it was (as events proved) easily removable.
+However, upon the balance of probability, I agree with the Vice Chancellor in thinking it was not attached.
+The best argument for the statue being a fixture was its careful siting in the West Lawn so as to form an integral part of the architectural design of the west elevation of the house.
+The design point is a good one so far as it goes: it explains the siting of the plinth, which undoubtedly was a fixture.
+But what was put upon the plinth was very much a matter for the taste of the occupier of the house for the time being.
+We know that at one time the object on the plinth had been a sundial.
+At the time of the sale it was this statue of a Greek athlete.
+The plinths position was architecturally important: it ensured that whatever stood on it would be correctly positioned.
+But the object it carried could be whatever appealed to the occupier for the time being.
+Sundial or statue it did not matter to the design, so long as it was in the right place a result ensured by the plinth which was firmly fixed into the ground.
+Being, as I think, unattached, the statue was, prima facie, not a fixture, but, even if it were attached, the application of the second test would lead to the same conclusion.
+Goff LJ took a different view of the statue (p 90) which had been placed at a focal point in the grounds, not for better enjoyment as a chattel but for the permanent enhancement of the beauty of the grounds, a case where resting upon its own bulk was a sufficient annexation.
+On that point he regarded DEyncourt v Gregory (1866) LR 3 Eq 382 as still authoritative, not overlooking the criticisms in In re De Falbe [1901] 1 Ch 523, which in his view related to the inferences drawn from the facts, rather than the principle that a thing may be a fixture because it is part of the architectural design.
+As I read the judgments the difference was not as to the principle, but as to its application to the particular facts.
+This view accords with the current 9th edition of Megarry & Wade, (2019) para 22.010, which repeats the relevant passage from the earlier editions, with the same case references, but adds: the principle that an object resting on its own weight can be a fixture if it is part of the overall design of the property has been approved: Berkley v Poulett [1977] 1 EGLR 86 at 89.
+Although that is not a precise formulation, it follows in my view that a statue or other ornamental object, which is neither physically attached to the land, nor directly related to the design of the relevant listed building and its setting, cannot be treated as a curtilage structure and so part of the building within the extended definition.
+Further confirmation of that approach can be found in a much more recent judgment of the High Court.
+It was held that a Henry Moore bronze sculpture Draped Seated Women, weighing 1,500 kg and resting on a plinth, which in 1962 had been placed by the London County Council in a new housing estate, under its policy of promoting works of art in public places, remained a chattel rather than part of the land (Tower Hamlets London Borough Council v Bromley London Borough Council [2015] EWHC 1954 (Ch); [2015] LGR 622).
+The judge (Norris J) noted as material that the sculpture was an entire object in itself, resting by its own weight on the ground, and able to be removed without damage, and that it did not form part of an integral design of that estate (para 17).
+Garden objects or structures as buildings
+object or structure may qualify as a listed building in its own right.
+Both sides have referred to the so called Skerritts test, that is a three fold test which involved considering size, permanence and degree of physical attachment.
+That formulation was derived from the judgment of Schiemann LJ in the Court of Appeal in Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions (No 2) [2000] JPL 1025, para 39.
+It can in I turn to the criteria which might be relevant in determining whether such an turn be traced back through the leading planning case on the definition of building in the planning statutes (Barvis Ltd v Secretary of State for the Environment (1971) 22 P & CR 710, DC), and to the judgment of Jenkins J in a rating case Cardiff Rating Authority v Guest Keen Baldwins Iron and Steel Co Ltd [1949] 1 KB 385.
+The Cardiff case was concerned with a different expression (plant in the nature of, a building or structure) in a different statutory context.
+In Barvis and Skerritts, however, the decisions turned on whether the item in question qualified as a building for the purpose of the definition in the relevant planning statute, which is the same definition (now contained in section 336 of the Town and Country Planning Act 1990) which applies for the purposes of the Listed Buildings Act.
+They refer to the Cardiff case for that purpose.
+The meaning of building was relevant to deciding whether the operations in issue qualified as building operations, as part of the statutory definition of development.
+The Cardiff case is relevant principally for a passage in the judgment of Jenkins J (pp 402 403) from which the three fold test was later derived.
+In addressing the question whether certain apparatus was or was in the nature of a building or structure, he said (as quoted by Bridge J in giving the leading judgment in Barvis (1971) 22 P & CR 710, 716): The general range of things in view consists of things built or constructed.
+I think, in addition to coming within this general range, the things in question must, in relation to the hereditament, answer the description of buildings or structures, or, at all events, be in the nature of buildings or structures.
+That suggests built or constructed things of substantial size: I think of such size that they either have been in fact, or would normally be, built or constructed on the hereditament as opposed to being brought on to the hereditament ready made.
+It further suggests some degree of permanence in relation to the hereditament, ie, things which once installed on the hereditament would normally remain in situ and only be removed by a process amounting to pulling down or taking to pieces.
+I do not, however, mean to suggest that size is necessarily a conclusive test in all cases, or that a thing is necessarily removed from the category of buildings or structures or things in the nature of buildings or structures, because by some feat of engineering or navigation it is brought to the hereditament in one piece.
+The question whether a thing is or is not physically attached to the hereditament is, I think, certainly a relevant consideration, but I cannot regard the fact that it is not so attached as being in any way conclusive against its being a building or structure or in the nature of a building or structure.
+Nor can I regard the fact that a thing has a limited degree of motion in use, either in relation to the hereditament or as between different parts of itself, necessarily prevents it from being a structure or in the nature of a structure, if it otherwise possesses the characteristics of such.
+As Bridge J held in Barvis at pp 716 717, in a judgment with which Lord Parker CJ and Widgery LJ agreed, if one substitutes throughout that passage the phrase structure or erection for the phrase structure or in the nature of a structure, this guidance is fully applicable to the considerations which govern the application of the definition in the Town and Country Planning Act 1962 (ie in section 221 of that Act, now re enacted as section 336 of the 1990 Act).
+Barvis was concerned with alleged development comprising the laying of a length of steel track and the mounting thereon of a moveable tower crane some 89 feet in height.
+The court upheld the Secretary of States view (disagreeing with the planning inspector) that it involved a building operation.
+Bridge J, giving the leading judgment, cautioned against reliance on the application of tests from real property law as to what amount to fixtures, rather than focusing on the statutory definition in the Act.
+He asked himself if the crane when erected was a building as defined, and said that if it was: I should want a great deal of persuading that the erection of it had not amounted to a building or other operation.
+Building includes any structure or erection.
+If, as a matter of impression, one looks objectively at this enormous crane, it seems to me impossible to say that it did not amount to a structure or erection.
+He found nothing in the statutory context to displace that impression: I would be very surprised if the planning legislation did not give to a planning authority the opportunity to control this kind of operation, and, in my judgment, this crane was not the less a structure or erection by reason of its limited degree of mobility on its rails on the site, nor by reason of the circumstance that at some future date, uncertain when it was erected, the appellants contemplated that it would be dismantled and the rails and beams broken out of their concrete beds and that it would be transported in pieces to other sites where it would be re erected for use in contract work. (pp 715 716) That view was confirmed by reference to the passage cited above from the judgment of Jenkins J in the Cardiff case.
+Bridge J distinguished a previous planning case, Cheshire County Council v Woodward [1962] 2 QB 126, DC, in which it was held that the Minister of Housing and Local Government had not erred in finding that the placing on a site of a mobile hopper and a mobile conveyancer, some 16 to 20 feet high, did not amount to development.
+Skerritts itself is of importance, both because it was the first time that the issue was considered at Court of Appeal level, and also because the three fold test derived from the Cardiff case was treated as of general application in the planning context.
+It is also useful as an illustration of how the planning inspector was able to treat those tests as workable guidance in a very different factual situation from that considered in the earlier cases.
+In the definition of building, Parliament has used the general concepts of erection and structure, rather than more precise and specific terms, and these are applicable across a very wide range of cases.
+Therefore, the application of the definition requires an evaluative judgment to be made.
+The Court of Appeal confirmed that where the relevant decision maker, in that case the inspector, directs himself by reference to Barvis and the guidance in the Cardiff case and arrives at a rationally defensible conclusion, his decision on the application of the statutory definition will be upheld as lawful.
+The case itself related to a marquee erected in the grounds of a hotel, and retained on site between February and October each year.
+On appeal against an enforcement notice, the inspector had concluded that it was to be regarded as a building for planning purposes and that its erection was a building operation requiring planning permission.
+In respect of its size and method of assembly he said: The marquee is a substantial object which is about 40m long, including the additions, and some 17m wide and the ridge height is around 5m There is no direct evidence before me of the assembly method or period, but from my inspection, I consider that it took several days with a number of erectors and amounted to a sizable and protracted event.
+I imagine that its dismantling follows much the same process.
+It is assembled on site, not delivered ready made.
+I do not regard its considerable bulk to be de minimis in relation to planning controls.
+It was sitting on square metal plates which are spiked to the soil beneath and appeared to be held in place by its own considerable weight, the internal bracing and the ground spikes.
+The timber floor was supported by metal ground beams resting on the land.
+He concluded: I conclude that, as a matter fact and degree, the marquee, due to its ample dimensions, its permanent rather than fleeting character and the secure nature of its anchorage, is a structure which is to be regarded as a building for planning purposes The main issue in the Court of Appeal was whether the marquee had a sufficient degree of permanence to qualify as a building.
+The court held that the inspector had been entitled to arrive at the conclusion that he did.
+None of these cases is of direct assistance in deciding how to categorise an object of artistic significance in the listed building context.
+It is notable that in both Barvis and Skerritts there was a clear move away from real property analogies.
+That seems to me correct.
+As has been seen, real property concepts are relevant to the extended definition, but there is nothing to import them into the basic definition of building.
+Skerritts provides clear authority at Court of Appeal level for the three fold test, albeit imprecise, of size, permanence and degree of physical attachment.
+No preferable alternative has been suggested in this court.
+Given that the same definition of building is adopted in the Listed Building Act, it is difficult to see any reason in principle why the same test should not apply.
+On the other hand, notwithstanding the apparent width of the statutory definition, the mere fact that something had been erected on land was not sufficient to make it a building.
+Skerritts is a good illustration of the practical application of the relevant tests, and in particular of the importance of the method of erection (a sizable and protracted event It is assembled on site, not delivered ready made).
+In addition to the fact that installation occurred by erection, the degree of permanence of the location of the item on the site was significant.
+In the listed building context that need for something akin to a building operation when the structure is installed can be seen as the counterpart to the reference to works for the demolition as the relevant contravening act under section 7 of the Listed Buildings Act, which clearly envisages some form of dismantling (ie pulling down or taking to pieces in the words of Jenkins J in the Cardiff case) when the item is removed from the site.
+It is also important to keep in mind the purpose of listed building control, which is to identify and protect buildings of special architectural or historic interest.
+It is not enough that an object may be of special artistic or historic interest in itself; the special interest must be linked to its status as a building.
+That is implicit in the reference to architectural interest.
+But it is relevant in my view also to the concept of historic interest.
+The historic interest must be found not merely in the object as such, but in its erection in a particular place.
+For completeness I should note that no assistance is to be gained from another case mentioned by the inspector: R (Judge) v First Secretary of State [2005] EWHC 887 (Admin); [2006] JPL 996.
+The inspector cited Sullivan Js statement (para 17) that the treatment of items as a matter of property law was wholly irrelevant.
+But that was said in relation to the quite different question whether the dismantled components of something which had unquestionably been a listed building could, by the process of dismantling, become chattels rather than buildings and thereby lose their statutory protection as such.
+Not surprisingly the court rejected that interpretation as wholly incompatible with the purpose of the legislation.
+It throws no light on the present issue.
+At this point, it may be useful to consider how the Skerritts criteria might apply to the various forms of garden structure identified in the guide discussed in the previous section.
+In doing so I emphasise that we have not heard any detailed submissions on these matters.
+Nor were we shown any commentary which was critical of the existing guides from the Department for Digital, Culture, Media & Sport and Historic England.
+Taking the three examples selected above from the Historic England guide (para 31), the latter two are readily understandable.
+Even if the Dartington statue is resting by its own weight, the plinth appears as a substantial built structure, and together they appear to form an integral design for the site in which it is placed.
+Similarly, the Crystal Palace dinosaurs, having regard to their relative size and permanence (whether or not physically attached to the land) could reasonably have been seen as buildings in their own right.
+But the first of the examples is more debatable.
+It is hard to see how it could be appropriate to include without discrimination items such as vases, basins seats, . and statuary, without any indication of how they might be brought within any part of the definition, whether as separate buildings or as curtilage structures under the extended definition.
+In particular, most ordinary forms of garden vases or seats would be unlikely to have become part of the land in real property terms, nor would they naturally be regarded as buildings under any of the tests considered above.
+The present case
+I return finally to the two items at issue in this case.
+It is not, as I understand it, suggested that they would have qualified for protection as curtilage structures within the extended definition.
+I agree.
+It seems clear that, whatever might have been the position had they remained in Wrest Park, the vases and their piers did not fall to be treated as part of the listed building of Idlicote House.
+Not only had they had been placed on the land after July 1948, but also, being freely movable, there is no suggestion that they were related in any relevant way to the design of that particular listed building and its setting.
+The applicable real property tests were not satisfied.
+How then might they fare under the Skerritts criteria: size, permanence and degree of physical attachment? Again in the absence of full submissions anything we say can only be provisional.
+There are arguments both ways.
+On the one hand, it can be said, they comprised a set of elements which had to be assembled together (a structure), required a small crane to move them and to assemble them (as an erection), and were intended to occupy a stable and near permanent position in situ (with greater permanence than the marquee in Skerritts).
+On the other hand, they are not particularly large, compared for example with the items considered in the three planning cases.
+It may also be relevant that the vases themselves, which are the real focus of the special interest, are physically separate.
+If they had been resting on the ground, rather than a plinth, I doubt if it would have occurred to anyone that they might qualify as buildings.
+Relevant also is the apparent ease of their installation and removal (as compared for example to the works in Skerritts).
+These are issues which can only be satisfactorily investigated and determined in the context of a renewed appeal.
+Conclusion
+The second agreed issue asks us simply to determine whether the Skerritts criteria for identifying a building are also relevant in the listed building context.
+For the reasons given above I would answer that question in the affirmative.
+As indicated above, I do not think it is possible or appropriate for us to reach a concluded view on how those tests should be applied in this case.
+Not only do we not have a full view of the facts, but the issue also involves questions of factual evaluation which are best dealt with by a planning inspector in the context of a renewed appeal.
+I would in any event urge those responsible on the part of the Secretary of State to consider the criticisms I have made about the lack of reliable guidance in the existing publications on this subject.
+I understand that this will be deeply frustrating for Mr Dill.
+There is as I
+understand it no suggestion that he acted other than in good faith in disposing of items which he believed to be his own disposable property, and had been so treated by his family for several decades.
+Since this problem was first drawn to his attention by the local authority in April 2015 he has been attempting to obtain a clear ruling on that issue.
+On the view I have taken, that opportunity has been wrongly denied to him for five years.
+Even if his appeal were ultimately to fail, the practicability of restoring the vases to their previous location in the grounds of Idlicote House is uncertain.
+Accordingly, this courts formal order for remittal should not prevent the respondents from giving serious consideration to whether in all the circumstances it is fair to Mr Dill or expedient in the public interest to pursue this particular enforcement process any further.
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+The appellant, TRA, who was arrested in the United Kingdom on 1 June 2017, is charged with one count of conspiracy to commit torture (count 1) and seven counts of torture (counts 2 8).
+The substantive offence alleged in each case is that of torture contrary to section 134, Criminal Justice Act 1988 (CJA).
+The charges relate to events in Liberia in 1990, in the early stages of the first Liberian civil war, when an armed group, the National Patriotic Front of Liberia (NPFL), sought to take control of the country and to depose the then President, Samuel Doe.
+The leader of the NPFL was Charles Taylor REDACTED.
+The NPFL eventually succeeded in taking control of Liberia and Charles Taylor became President in 1997.
+This is an appeal pursuant to section 36, Criminal Procedure and Investigations Act 1996 (CPIA) and section 33(1), Criminal Appeal Act 1968.
+It arises out of a ruling on a question of law made within a preparatory hearing under section 32(3) CPIA which was amalgamated into a decision on an application for dismissal under the Crime and Disorder Act 1998, Schedule 3 paragraph 2(2).
+The Criminal Division of the Court of Appeal (Lord Burnett CJ, Popplewell and Whipple JJ) has certified the following point of law of general public importance: What is the correct interpretation of the term person acting in an official capacity in section 134(1) of the Criminal Justice Act 1988; in particular does it include someone who acts otherwise than in a private and individual capacity for or on behalf of an organisation or body which exercises or purports to exercise the functions of government over the civilian population in the territory which it controls and in which the relevant conduct occurs?
+The prosecution case
+REDACTED
+The prosecution maintains that at the time and place of the alleged offences, the NPFL was the de facto military government or government authority and that Charles Taylor and those acting for and with him, including the appellant, were acting in an official capacity for, and on behalf of, the NPFL and had effective control of the area where the various alleged offences occurred at the time they occurred.
+The prosecutions expert witness acknowledges that identifying a specific date when a particular town fell under NPFL control is difficult.
+Territory changed hands quickly during the early months of the war.
+Both the NPFL and the government of Liberia made misleading statements regarding which towns were under their control.
+During its advance across Nimba County the NPFL did not have a clearly defined military structure, although Charles Taylor was universally recognised as leader of the group during this period.
+Commanders moved with the fighting and exercised influence based on the number of soldiers they were able to recruit and train.
+The prosecutions expert witness indicates that within days of falling under NPFL control, villages and towns usually received a visit from an NPFL commander and a detachment of fighters, although the NPFL did not maintain a permanent presence in all locations.
+Further, he states that his own research suggests that all of Nimba County including the major towns and cities was under NPFL control by early May 1990.
+In a memorandum served by the prosecution after the hearing before the Court of Appeal, the prosecutions expert clarifies that his use of the term control refers to military rather than administrative control over the area.
+He states that the NPFL offensives in early 1990 caused the Armed Forces of Liberia (AFL) to withdraw from nearly all areas of Nimba County and consolidate their forces in military bases located in strategic towns.
+This withdrawal created a situation in which NPFL forces had freedom of movement throughout the County.
+As a result, the NPFL was the de facto military authority in the area.
+Such military control is said to be very different from administrative control.
+He states that before June 1990 the NPFL did not have a sustained presence in much of Nimba County.
+It did not assign officials to oversee towns or deploy forces to provide security.
+NPFL forces passed through towns and villages on an ad hoc basis; there was no sustained or coordinated occupation.
+Much of the population lived in a no mans land, areas without any consistent administrative authority, but with the occasional presence of NPFL fighters.
+REDACTED
+Following her arrest on 1 June 2017, the appellant denied involvement in the offences.
+In her Defence Case Statement, she asserts that at no time did she act in an official capacity for the NPFL and she disputes that the NPFL was the de facto government authority in the relevant locations and at the relevant times.
+The proceedings
+The appellant made an application to dismiss the charges pursuant to the Crime and Disorder Act 1998, Schedule 3, paragraph 2.
+The application came before Sweeney J at the Central Criminal Court in two stages.
+The parties agreed that the judge should first hear argument as to the correct legal test of official capacity with the intention that, once that ruling had been delivered, the defence could consider whether to continue with a submission that there was no case to answer.
+The application proceeded on the basis that a submission of no case to answer may include the calling of evidence by the prosecution or the defence and that the determination of such a submission would be a matter of law.
+The first part of the dismissal application was heard on 26 and 27 March 2018.
+In his ruling dated 30 July 2018, Sweeney J concluded that section 134 applies, not only to acting for entities either tolerated by, or acting under the authority of the government of a state, but also, in situations of armed conflict, to individuals who act in a non private capacity and as part of an authority wielding entity.
+Following this ruling, the second part of the defendants dismissal application was heard on 4 October 2018.
+On 10 October 2018 Sweeney J ruled that there was a case to answer on all counts.
+In his reasons given in writing on 29 October 2018 the judge explained that, while the questions whether the appellant was acting in a non official capacity on behalf of the NPFL and whether the NPFL was an authority wielding entity would ultimately be for the jury, the dismissal application turned on whether the evidence, taken at its highest, was sufficient for a jury properly to so conclude.
+He held that it was.
+The appellant appealed against the ruling dated 30 July 2018, made again within the context of the preliminary hearing on 29 October 2018, to the Court of Appeal which dismissed the appeal on 21 December 2018.
+It held that the category of perpetrator defined as a public official or person acting in an official capacity in section 134 CJA is not confined to those acting on behalf of a recognised state but covers any person who acts otherwise than in a private and individual capacity for or on behalf of an organisation or body which exercises or purports to exercise the functions of government over the civilian population in the territory which it controls and in which the relevant conduct occurs.
+Furthermore, it covers any such person whether acting in peace time or in a situation of armed conflict. (para 69) The Court of Appeal noted that it had expressed its conclusion in slightly different language from that of Sweeney J in his ruling, but it considered that the test he adopted and applied was not materially different on the facts of the case and that his subsequent ruling on the factual submission of no case to answer was not affected by the difference.
+Accordingly, the appeal was dismissed.
+On 13 February 2019 the Supreme Court (Lady Hale, Lord Reed and Lord Kerr) granted permission to appeal.
+The UN Convention against Torture and its implementation
+it is alleged that the offences in the indictment were committed.
+Section 134 CJA provides in relevant part: It is necessary to identify and apply the law as it existed at the dates on which 134.
+Torture (1) A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties. (2) A person not falling within subsection (1) above commits the offence of torture, whatever his nationality, if (a) in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another at the instigation or with the consent or acquiescence of a public official; or (i) (ii) of a person acting in an official capacity; and (b) the official or other person is performing or purporting to perform his official duties when he instigates the commission of the offence or consents to or acquiesces in it. (6) A person who commits the offence of torture shall be liable on conviction on indictment to imprisonment for life.
+Section 134 CJA came into effect on 29 September 1988.
+It applies to conduct committed after that date.
+Section 135 provides that prosecutions under section 134 require the consent of the Attorney General.
+Such consent was given in this case on 2 June 2017.
+Section 134 CJA implements in domestic law certain obligations of the United Kingdom pursuant to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, New York, 10 December 1984, (1991) (Cm 1775), 1465 UNTS 85 (UNCAT).
+Article 1 defines torture for the purposes of UNCAT: Article 1 1.
+For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
+It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 2.
+This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.
+Under UNCAT each State Party is required to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction (article 2).
+No State Party shall expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture (article 3).
+Each State Party is required to ensure that all acts of torture are offences under its criminal law (article 4) and to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him (article 5).
+In such cases each State Party is obliged, if it does not extradite the alleged offender, to submit the case to its competent authorities for the purpose of prosecution (article 7).
+Each State Party also undertakes to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity (article 16).
+UNCAT entered into force on 26 June 1987, in accordance with article 27(1).
+It currently has 166 State Parties.
+Torture in international humanitarian law
+Torture for the purposes of UNCAT must be distinguished from discrete concepts of torture in international humanitarian law where torture may form the basis of a war crime or a crime against humanity.
+I would draw attention, in particular, to the following matters. (1) Article 3, common to each of the four Geneva Conventions of 1949, prohibits torture in non international armed conflicts and establishes protections for persons who do not or who no longer take an active part in hostilities.
+In Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits, Judgment) ICJ Rep 1986, 14 at 113 4, para 218, the International Court of Justice held that Common Article 3 establishes minimum guarantees that apply in all armed conflict. (2) The statutes of the ad hoc international tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) conferred jurisdiction to try offences of torture committed during armed conflict without defining the offence.
+The Tribunals produced their own definitions, based heavily on UNCAT. (3) Under the Rome Statute of the International Criminal Court (ICC), 17 July 1988, torture is capable of constituting (1) a crime against humanity when committed as part of a widespread or systematic attack directed against any civilian population (article 7(1)(f)); (2) a war crime when committed in an armed conflict whether international or not of an international character (articles 8(2)(a)(ii) and 8(2)(c)(i)).
+A vital distinction for present purposes between torture under UNCAT and torture in international humanitarian law is that torture under UNCAT is limited to cases where pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
+Although the ICTY initially considered that there was a requirement in respect of torture in an armed conflict that at least one of the persons involved in the torture process must be a public official or must at any rate act in a non private capacity, eg as a de facto organ of a State or any other authority wielding entity (Prosecutor v Furundija, Trial Chamber Judgment, 10 December 1998, para 162; see also Appeal Chamber Judgment, 21 July 2000, para 111), it later took the contrary view (Prosecutor v Kunarac, Trial Chamber Judgment, 22 February 2001, para 496; Appeals Chamber Judgment, 12 June 2002, para 148).
+It is now established that there is no such requirement in the case of war crimes or crimes against humanity in international humanitarian law.
+In particular, there is no such requirement in the case of torture as a war crime or a crime against humanity under the Statute of the ICC.
+As a result, it is necessary to exercise caution when referring to materials and authorities on international humanitarian law for the purpose of ascertaining the scope of article 1 of UNCAT.
+Torture as a crime against humanity and torture as a war crime, as defined in the Statute of the ICC, are both offences contrary to UK law by virtue of sections 50 and 51, International Criminal Court Act 2001.
+As a result, torture committed in certain circumstances may be prosecuted here as a war crime or a crime against humanity.
+However, the alleged conduct which gives rise to the current charges against the appellant could not be prosecuted in the United Kingdom on either of these bases, even if the elements of these offences were otherwise established, because section 65A of the International Criminal Court Act 2001, inserted by section 70 of the Coroners and Justice Act 2009, which deals with retrospective application, provides that the relevant sections apply to acts committed on or after 1 January 1991, which is later than the date on which the instant offences are alleged to have been committed.
+The submissions of the parties
+On behalf of the appellant Mr Steven Powles QC submits that section 134 CJA and the term person acting in an official capacity apply only to those acting for or on behalf of the government of a State.
+He submits that this is the ordinary meaning of both section 134 CJA and article 1, UNCAT, in light of the object and purpose of UNCAT, that this is also supported by the travaux preparatoires and that this is further demonstrated by the pronouncements of the UN Committee against Torture.
+He submits that, as a result, section 134 CJA does not apply to the conduct of an alleged member of an armed opposition group fighting against or seeking to overthrow the government of a State.
+On behalf of the prosecution Mr David Perry QC submits that section 134(1) CJA covers any person who acts otherwise than in a private and individual capacity for or on behalf of an organisation or body which exercises the functions of government over the civilian population in the territory which it controls and in which the relevant conduct occurs.
+Furthermore, it covers any such person whether acting in peace time or in a situation of armed conflict.
+He submits that the concept of official capacity in the Convention extends beyond any formal State structure and even beyond actors who had been invested with authority by the State.
+It covers all those who exercise a form of public authority over individuals in a manner which might be similar to the authority of a State.
+Thus, he submits, it would extend to armed groups who seek to depose the government and to exercise State power and would certainly extend to those who in their quest for authority have displaced the legitimate government in those areas where they operate.
+The approach to interpretation of section 134 CJA and article 1, UNCAT
+Section 134 CJA was intended to give effect to UNCAT in domestic law.
+As a result, the words person acting in an official capacity must bear the same meaning in section 134 as in article 1, UNCAT. (See R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3) (Pinochet No 3) [2000] 1 AC 147 per Lord Browne Wilkinson at p 200A B.) The principles of international law governing the interpretation of treaties are to be found in articles 31 and 32, Vienna Convention on the Law of Treaties, 23 May 1969, (1980) (Cm 7964), 1155 UNTS 331.
+Article 31.
+General Rule of Interpretation 1.
+A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2.
+The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (b) Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3.
+There shall be taken into account, together with the context: (a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) Any relevant rules of international law applicable in the relations between the parties. 4.
+A special meaning shall be given to a term if it is established that the parties so intended.
+Article 32.
+Supplementary Means of Interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) Leaves the meaning ambiguous or obscure; or (b) Leads to a result which is manifestly absurd or unreasonable.
+Ordinary meaning
+On behalf of the appellant, Mr Powles submits that the ordinary meaning of both article 1, UNCAT and section 134 CJA is such that section 134 applies only to those acting for or on behalf of the government of a State.
+He points out, correctly, that while article 1(2) UNCAT is without prejudice to national legislation which does or may contain provisions of wider application, section 134 is not drafted in terms of wider application than article 1.
+The offence contrary to section 134(1) can be committed only by a public official or person acting in an official capacity.
+He further draws attention to the fact that both subsections 134(1) and (2) provide that the public official or person acting in an official capacity must be acting in the performance or purported performance of their official duties.
+He points to the fact that the definition applies to torture both in the United Kingdom and elsewhere and submits that it is hard to envisage that anyone could, in the United Kingdom, commit an act of torture in the performance of their official duties unless they were acting for or on behalf of the State.
+Anyone not acting either for or on behalf of the State is, he submits, by definition, acting in a private and individual capacity and such conduct, in the United Kingdom, would fall within the jurisdiction of ordinary domestic criminal law and be prosecuted accordingly.
+The difficulty with the appellants approach is that it seeks to impose a gloss on the ordinary meaning of the words of the two provisions.
+Those words are apt to describe a person performing official administrative or governmental functions but provide no suggestion that those functions must be performed on behalf of the government of the State concerned.
+The dichotomy drawn by the provisions is between official conduct and purely private conduct, not between State and non State activity.
+While in most normal circumstances, such as those prevailing in the United Kingdom to which the appellant refers, official conduct will usually be performed on behalf of a State, it is necessary to consider the applicability of the Convention in less stable situations, including those where more than one body may be performing administrative or governmental functions within the territory of the State.
+Unhappily, examples of such situations arise not infrequently.
+In my view the words used do not support a limitation of the kind proposed.
+On the contrary, the words person acting in an official capacity are apt to include someone who holds an official position or acts in an official capacity in an entity exercising governmental control over a civilian population in a territory over which it holds de facto control.
+Object and purpose
+It is well established that a treaty should be interpreted in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose (Vienna Convention on the Law of Treaties, article 31(1)).
+It is necessary, however, to sound a cautionary note at this point.
+While the object of UNCAT was undoubtedly, in one sense, to end impunity for perpetrators of what might be termed official torture it does not follow that the reading of the Convention which would best avoid impunity must be adopted in all circumstances.
+It is, rather, necessary to give effect to the words used in the light of the object and purpose of the scheme created by the State parties to the Convention.
+Similarly, the mere fact that a particular reading may be seen as a desirable development of the law is not of itself a valid reason for adopting it.
+It is not for national courts engaged in interpreting a treaty to seek to force the pace of the development of international law, however tempting that may be.
+There is an analogy to be drawn here with the consideration by national courts of potential rules of customary international law, addressed by the House of Lords in Jones v Ministry of the Interior of the Kingdom of Saudi Arabia (Secretary of State for Constitutional Affairs intervening) (Jones v Saudi Arabia) [2006] UKHL 26; [2007] 1 AC 270 where Lord Hoffmann observed (at para 63): It is not for a national court to develop international law by unilaterally adopting a version of that law which, however desirable, forward looking and reflective of values it may be, is simply not accepted by other states.
+Lord Bingham noted, similarly, (at para 22) that one swallow does not make a rule of international law.
+The principal purpose of UNCAT is not to outlaw torture and other cruel, inhuman or degrading treatment or punishment.
+On the contrary the Convention is based upon the recognition that such practices are already outlawed under international law and the principal aim of UNCAT is to strengthen the existing prohibition by a number of supportive measures (Burgers and Danelius, The United Nations Convention against Torture A Handbook on the Convention against Torture, (Martinus Nijhoff 1988), p 1).
+Thus, Lord Browne Wilkinson observed in Pinochet (No 3) at p 199C: The Torture Convention was agreed not in order to create an international crime which had not previously existed but to provide an international system under which the international criminal the torturer could find no safe haven. (See also Lord Hutton at pp 260F 261B) As Judge Crawford points out, UNCAT, in common with similar treaties relating, for example, to the unlawful seizure of aircraft or the taking of hostages, does not impose criminal responsibility directly upon individuals, but rather requires contracting States to prevent and punish the conduct in question.
+The enforcement of such norms occurs at the domestic rather than the international level, as the treaties envisage punishment only by domestic courts.
+In addition to obliging states parties to criminalize certain conduct, such treaties generally require them to prosecute or extradite accused persons to other states parties that are willing to prosecute them (aut dedere aut iudicare).
+While the enforcement of these norms is dependent on domestic legal systems either prosecuting or extraditing accused persons, various treaty bodies such as the Committee against Torture often play an important role in monitoring the implementation of the treaty norms at the domestic level. (James Crawford, Brownlies Principles of Public International Law, 9th ed (2019), p 663.) It can be seen therefore that the object of UNCAT has been to make torture as defined in article 1 a criminal offence of universal jurisdiction enforceable by domestic courts and, by virtue of very extensive State participation in the Convention, to establish a machinery capable of reducing the likelihood of perpetrators of official torture escaping justice before national courts.
+Article 1 of UNCAT therefore defines a criminal offence which contracting States are required to criminalize and punish within their respective legal systems.
+The fact that UNCAT is a human rights treaty imposing obligations in international law on the contracting States is not a good reason for limiting the scope of that offence to conduct attributable to the State itself.
+It does not follow that the reference in the Convention to public officials and those acting in an official capacity must be taken to refer to State actors as opposed to non State actors.
+Travaux preparatoires
+We have been referred by the parties to records of the drafting history of article 1, UNCAT and to commentaries on the Convention, including Burgers and Danelius (above) and Nowak and McArthur, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OUP, 2008).
+Both parties submit that these materials are admissible as a supplementary means of interpretation under article 32, Vienna Convention on the Law of Treaties and support their respective interpretations of the words a public official or other person acting in an official capacity in article 1, UNCAT.
+The UN Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by General Assembly resolution 3452 (XXX) of 9 December 1975 (the 1975 Declaration) defined torture in article 1 in terms which required that it be inflicted by or at the instigation of a public official.
+By Resolution 32/62 of 8 December 1977, the UN General Assembly requested the Commission on Human Rights to draw up a draft convention against torture.
+The Commission examined the matter at its 34th session and invited comments on the draft articles from the governments of member states of the United Nations and its specialized agencies in advance of its 35th session.
+The comments received are summarised in three documents published by the Commission on Human Rights (E/CN.4/1314, 19 December 1978; E/CN.4/1314/Add 1, 18 January 1979; E/CN.4/1314/Add 2, 31 January 1979).
+At that stage, the definition of torture in draft article 1 required that it be inflicted by or at the instigation of a public official.
+In its response the Austrian Government proposed that the concept of public official be expanded, for example by using the words persons, acting in an official capacity (E/CN.4/1314, para 43).
+The United States proposed that the term public official be defined in order to clarify the breadth of the concept and to make clear that both civil and military officials are included (E/CN.4/1314, para 45).
+The United Kingdom proposed that, in order to amplify the definition, the phrase or any other agent of the State be inserted after public official (E/CN.4/1314/Add 1, para 3).
+The observation of the Federal Republic of Germany was summarised as follows: in particular, it should be made clear that the term public official contained in paragraph 1 refers not only to persons who, regardless of their legal status, have been assigned public authority by State organs on a permanent basis or in an individual case, but also to persons who, in certain regions or under particular conditions, actually hold and exercise authority over others and whose authority is comparable to governmental authority or be it only temporarily has replaced government authority or whose authority has been derived from the aforementioned persons. (E/CN.4/1314/Add 2, para 2) Clearly, the German proposal was not implemented in terms. (See Boulesbaa, The UN Convention on Torture and the Prospects for Enforcement, (Martinus Nijhoff 1999), pp 27 28; Wendland, A Handbook on State Obligations under the UN Convention against Torture, Association for the Prevention of Torture, (2002), p 29.) Nevertheless, it may have influenced the expansion of the concept of public official.
+Nowak and McArthur summarise the matter as follows: 116.
+Severe pain or suffering only counts as torture in the understanding of the Convention if it is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
+The formulation in the 1975 Declaration and the original Swedish draft (by or at the instigation of a public official) reflects the traditional view that States can only be held accountable for human rights violations committed by State actors.
+Since the main purpose of the Convention was to require States parties to use domestic criminal law for the purpose of punishing perpetrators of torture, several governments, such as France, Barbados, Panama and Spain, advocated an extension of the definition covering also private individuals.
+Germany did not go as far but wished to include also non State actors who exercise authority over others and whose authority is comparable to government authority.
+Since other governments, including the United States, United Kingdom, Morocco and Austria, insisted on a traditional State centred definition, the Working Group finally agreed on a US compromise proposal which extended State responsibility to the consent or acquiescence of a public official.
+Since the delegations could not agree on a definition of the term public official, the Austrian proposal to add the phrase or other person acting in an official capacity was adopted. (footnotes excluded) On this basis Mr Powles submits that the compromise was the inclusion of non State actors who act with the consent or acquiescence of a public official and not the expansion of the definition of person acting in an official capacity beyond persons or entities who in fact act for or on behalf of the State.
+It seems clear from this account by Nowak and McArthur that, in the result, the intention was at least to exclude from the definition the conduct of private individuals acting in a private capacity.
+The question is whether it was intended to go further and to include within the definition acts of de facto authorities exercising governmental functions.
+On behalf of the appellant, Mr Powles draws particular attention to the reference by Nowak and McArthur to insistence on a traditional State centred definition and submits that it supports the view that conduct in an official capacity must be attributable to the State.
+It is not entirely clear, however, what is meant by this term.
+A later passage in Nowak and McArthur, on which the prosecution relies, suggests that it may be intended simply to exclude perpetrators acting entirely in a personal capacity. 118.
+The term other person acting in an official capacity goes, however, clearly beyond State officials.
+It was inserted on the proposal of Austria in order to meet the concerns of the Federal Republic of Germany that certain non State actors whose authority is comparable to governmental authority should also be held accountable.
+These de facto authorities seem to be similar to those political organizations which, according to article 7(2)(i) ICC Statute, can be held accountable for the crime of enforced disappearance before the ICC.
+One might think of rebel, guerrilla or insurgent groups who exercise de facto authority in certain regions or of warring factions in so called failing States. 119.
+In the case of Elmi v Australia, the Committee had to decide whether the forced return of a Somali national belonging to the Shikal clan to Somalia, where he was at a substantial risk of being subjected to torture by the ruling Hawiye clan, constituted a violation of the prohibition of refoulement pursuant to article 3.
+The Committee found a violation of article 3 and explicitly rejected the argument of the Australian Government that the acts of torture the applicant feared he would be subjected to in Somalia would not fall within the definition of torture set out in article 1: (original emphasis, footnotes omitted) Article 7(2)(i), ICC Statute, to which Nowak and McArthur refer, provides: Enforced disappearance of persons means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts so those persons, with the intention of removing them from the protection of the law for a prolonged period of time.
+On its face, this passage from Nowak and McArthur strongly supports the prosecutions submission.
+Mr Powles, however, criticises Nowak and McArthurs statement that the term other person acting in an official capacity was inserted in order to meet the concerns of the Federal Republic of Germany that certain non State actors whose authority is comparable to governmental authority should also be held accountable.
+He points to the sequence in which comments were submitted, which seems to show that the Austrian amendment was proposed before the German observation was made.
+On the information presently available to us, it can nevertheless be said that the German observation was under consideration by the Working Group before the amendment proposed by Austria was agreed and the sequence does not necessarily mean that the amendment does not reflect Germanys concern. (In this regard, Mr Perry, on behalf of the prosecution, also draws our attention to the fact that section 312a of the Austrian Criminal Code provides that public officials within the meaning of this provision shall also be those who, in the event of the absence or default of the public authorities, are effectively acting as officials.
+The significance of this as an aid to interpreting article 1, UNCAT is, however, much reduced by the fact that article 1(2) provides that article 1 is without prejudice to any national legislation which does or may contain provisions of wider application.
+In other words, UNCAT does not prohibit gold plating by contracting States.
+Furthermore, although Austria ratified UNCAT in 1987 this amendment to the Austrian Criminal Code was not introduced until 2013.) In the result, therefore, the commentary by Nowak and McArthur and the legislative history to which they refer can be said to provide some support for the interpretation for which the prosecution contends.
+Mr Powles also relies on passages in Burgers and Danelius concerning the drafting history in support of his reading of article 1.
+There were different opinions on the question as to whether or not the definition of torture in the convention should be limited to acts of public officials.
+It was pointed out by many States that the purpose of the convention was to provide protection against acts committed on behalf of, or at least tolerated by, the public authorities, whereas the State could normally be expected to take action according to its criminal law against private persons having committed acts of torture against other persons.
+However, France considered that the definition of the act of torture should be a definition of the intrinsic nature of the act of torture itself, irrespective of the status of the perpetrator.
+Although there was little support for the French view on this matter, most States agreed that the convention should not only be applicable to acts committed by public officials, but also to acts for which the public authorities could otherwise be considered to have some responsibility. (Burgers and Danelius (above) at p 45, original emphasis) In principle, the common element of the purposes referred to in the definition should rather be understood to be the existence of some even remote connection with the interests or policies of the State and its organs.
+It is important to note, in this context, that the primary objective of the Convention is to eliminate torture committed by or under the responsibility of public officials for purposes connected with their public functions.
+Precisely because the public interest is sometimes seen in such cases as a justification, the authorities may be reluctant to suppress these practices.
+The provisions of the Convention are intended to ensure that torture does not occur in such cases or that, if it occurs, action is taken against the offender. (Burgers and Danelius (above), at pp 118 119) In a further passage, Burgers and Danelius state: While these passages may be read as providing some support for the appellants case, it is important to bear in mind that neither was addressing the specific question which arises in these proceedings.
+The first was addressing the distinct questions of whether torture under the Convention should include private acts of torture and whether it should extend beyond acts committed by public officials.
+The second was addressing the requirement that torture should be committed for a specific purpose connected to the actors public function.
+As a result, these passages cast little light on the meaning of the words acting in an official capacity.
+The same is true of the following statement by the Chairman Rapporteur, Mr J H Burgers in his report of the Working Group dated 25 March 1983 addressing whether the offence of torture should attract universal jurisdiction: Most speakers were in favour of the principle of universal jurisdiction, holding it to be essential in securing the effectiveness of the Convention.
+Territorial jurisdiction would not suffice to punish torture effectively as a State policy, under the definition of article 1. (E/CN.4/1983/63 at para 21)
+While these aspects of the travaux preparatoires may be inconclusive as to the meaning of the words public official or other person acting in an official capacity in article 1, they do, however, cast some light on certain objectives of the Convention.
+Two points, in particular, emerge with some clarity.
+First, it was the intention that the offence defined in article 1 should not include purely private acts of torture with no official character or connection.
+While the representatives of some States in the Working Group considered that the offence should not be limited to the conduct of public officials since the purpose of the Convention was to eradicate any and all activities which result in torture, others considered that such purely private acts were not matters of particular interest to the international community and that each State could normally be expected to take action according to its criminal law against private persons who had committed such private acts of torture so that there was no need for its regulation by an international convention.
+The prevailing view was that acts of torture committed by or under the responsibility of public officials for purposes connected with their public functions were different in nature from, and inherently more serious than, those inflicted by a private person, and that the elimination of the former category of torture should be the primary target of the Convention. (See Nowak and McArthur, paras 33, 40; Burgers and Danelius, pp 45, 118 120; E/CN.4/1314, 19 December 1978, para 29.) Thus, international action was primarily designed to cover situations where national action was otherwise least likely (E/CN.4/L.170, 12 March 1979, paras 17, 18).
+To the extent that the words a public official or other person acting in an official capacity in article 1 were intended to achieve that result, they should not exclude conduct by rebels, outside the authority of the State, exercising governmental functions over the civilian population of territory under its control.
+On the contrary, such conduct is properly the concern of the international community and requires international regulation, albeit implemented at national level.
+Official torture is as objectionable and of as much concern to the international community when it is committed by a representative of a de facto governmental authority as when it is committed on behalf of the de jure government.
+Secondly, there is likely to be reluctance on the part of States to bring to justice perpetrators of torture who have acted in an official capacity, where torture is a State policy, not least because the public interest may be claimed as a justification. (See Burgers and Danelius, pp 45, 118 120; E/CN.4/1982/L.40, para 26; E/CN.4/1983/63, para 21.) As a result, the bringing to justice of perpetrators could not be left to the territorial jurisdiction of the State concerned and a primary objective of the Convention was to establish universal jurisdiction for this reason.
+To the extent that the words a public official or other person acting in an official capacity in article 1 were intended to achieve that result, the point can fairly be made on behalf of the appellant that this rationale does not apply to torture perpetrated by rebels acting outside the authority of the State.
+While a case for establishing universal jurisdiction may be made out in such circumstances, its basis would be the inability and not the reluctance of the State to act.
+Subsequent practice
+Article 31(2)(b) Vienna Convention on the Law of Treaties provides that in interpreting a treaty there shall be taken into account, together with the context, any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation.
+In this regard, the appellant relies on the report by the Special Rapporteur dated 19 February 1986 and both parties rely on the decisions and General Comments of the UN Committee Against Torture (CAT).
+Kooijmans Report, 19 February 1986
+UNCAT was adopted on 10 December 1984 and entered into force on 26 June 1987.
+In his report of 19 February 1986 (E/CN.4/1986/15) the Special Rapporteur, Mr P Kooijmans, made the following reference to the text of article 1.
+Article 1, para 1, of the Convention reads as follows when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
+The Convention was again following the Declaration of 1975, but developing it by adding the phrases or with the consent or acquiescence of and or other person acting in an official capacity.
+Consequently, State responsibility is apparent even when the authorities resort to the use of private gangs or paramilitary groups in order to inflict severe pain or suffering with the intention and purposes already mentioned.
+However, private acts of brutality even the possible sadistic tendencies of particular security officials should not imply State responsibility, since these would usually be ordinary criminal offences under national law. (at para 38) In this passage Mr Kooijmans is focussing on the circumstances in which a State may be responsible for acts of torture.
+He emphasises the distinction between official and private acts and the extension of the States responsibility in cases of consent or acquiescence within article 1.
+Contrary to the appellants submission, this passage does not support the proposition that a state nexus requirement is inherent in the term official capacity, such that the term only applies to persons acting on behalf of the State.
+The relevance of state responsibility to the present issue is considered below.
+Committee Against Torture
+Part II of UNCAT establishes the CAT which consists of ten experts of high moral standing and recognized competence in the field of human rights, who shall serve in their personal capacity (article 17(1)).
+The States Parties are required to submit to the CAT reports on the measures they have taken to give effect to their undertakings under UNCAT and the CAT may make general comments on the reports (article 19).
+In addition, a State Party may declare that it recognises the competence of the CAT to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention.
+The CAT is required to consider such communications and to forward its views to the State Party and the individual concerned (article 22).
+The decisions and General Comments of the CAT are clearly entitled to respect.
+However, in considering the work of the CAT as part of subsequent practice in the application of UNCAT it is necessary to bear in mind the particular status of the Committee.
+In Jones v Saudi Arabia Lord Bingham observed, at para 23, with regard to a General Comment made by the CAT on the issue of effective measures of redress: [T]he committee is not an exclusively legal and not an adjudicative body; its power under article 19 is to make general comments; the committee did not, in making this recommendation, advance any analysis or interpretation of article 14 of the Convention; and it was no more than a recommendation.
+Whatever its value in influencing the trend of thinking, international this recommendation is slight. legal authority of the
+General Comments of the CAT
+The CAT has published four General Comments on UNCAT.
+In these proceedings, particular reliance has been placed on General Comment No 2: Implementation of article 2 by States Parties, 24 January 2008 (CAT/C/GC/2) and General Comment No 4: Implementation of article 3 of the Convention in the context of article 22, 4 September 2018 (CAT/C/GC/4).
+The appellant submits that the CAT has consistently defined official capacity according to whether the person or entity is carrying out a public function on behalf of the State.
+In this regard, she relies, in particular, on the following passage in General Comment No 2: The Convention imposes obligations on States parties and not on individuals.
+States bear international responsibility for the acts and omissions of their officials and others, including agents, private contractors and others acting in an official capacity or acting on behalf of the State, in conjunction with the State, under its direction or control, or otherwise under colour of law. (at para 15) It is, of course, correct that UNCAT is binding on the Contracting States in international law and that it does not itself impose obligations on individuals.
+Rather, it imposes on each State party an obligation to create and enforce in its domestic law an offence which conforms with the definition in article 1.
+However, it is not possible to derive from this the conclusion that torture within article 1 is limited to conduct attributable to the State as suggested by the appellant.
+Furthermore, this passage is not necessarily intended to be an exclusive description of the scope of article 1.
+The appellant also relies on the following passage in General Comment No 4 on the implementation of the non refoulment obligation in article 3: States parties should refrain from deporting individuals to another State where there are substantial grounds for believing that they would be in danger of being subjected to torture or other ill treatment at the hands of non State entities, including groups that are unlawfully exercising actions that inflict severe pain or suffering for the purposes prohibited by the Convention, and over which the receiving State has no or only partial de facto control, or whose acts it is unable to prevent or whose impunity it is unable to counter. (at para 30) This passage accurately describes the non refoulment obligation.
+However, it does not address the question whether the conduct of such non State entities might constitute torture within article 1 if they are quasi governmental entities performing governmental functions.
+More generally, the General Comments do not provide any support for the reading of article 1 for which the appellant contends.
+It is also necessary to address a submission on behalf of the prosecution that the General Comments taken as a whole demonstrate that the actions of non State actors can be considered as acts impermissible under UNCAT.
+Here it is submitted that if the interpretation of article 1 advanced by the appellant is correct (namely that it only applies to State actors or those acting with the approval or acquiescence of the State) then there would be no obligation on the State to punish acts of torture which violate the Convention committed by non State officials in areas outside the States control (emphasis in original).
+The prosecution relies in particular on the following passage in General Comment No 2: 18.
+The Committee has made clear that where State authorities or others acting in an official capacity or under colour of law, know or have reasonable grounds to believe that acts of torture or ill treatment are being committed by non State officials or private actors and they fail to exercise due diligence to prevent, investigate, prosecute and punish such non State officials or private actors consistently with the Convention, the State bears responsibility and its officials should be considered as authors, complicit or otherwise responsible under the Convention for consenting to or acquiescing in such impermissible acts.
+Since the failure of the State to exercise due diligence to intervene to stop, sanction and provide remedies to victims of torture facilitates and enables non State actors to commit acts impermissible under the Convention with impunity, the States indifference or inaction provides a form of encouragement and/or de facto permission.
+The Committee has applied this principle to States parties failure to prevent and protect victims from gender based violence, such as rape, domestic violence, female genital mutilation, and trafficking.
+In this regard the prosecution further relies on passages in the CATs initial report on Iraq, 7 September 2015 (CAT/C/IRQ/CO/1, paras 11 12) and its second periodic report on Afghanistan, 12 July 2017 (CAT/C/AFG/2, para 7).
+On this basis it submits that it is envisaged that it is not only State agents who should be prosecuted and punished pursuant to the State parties obligations under the Convention but also perpetrators from non State party groups or organisations operating on the territory of the State party.
+This submission cannot be accepted.
+Although the matter is awkwardly expressed, in General Comment No 2, para 18, the CAT is stating the proposition that a States failure to fulfil its obligation under the Convention to prevent, investigate, prosecute and punish inhuman treatment committed by non State officials or private actors will amount to the States consent to or acquiescence in those acts within the definition in article 1.
+It is that consent or acquiescence and not the status of the actor which gives the conduct its official character.
+This is a principle familiar in the fields of State responsibility and human rights.
+The State is responsible not because the acts of the individuals concerned are attributable to the State but because of its own failure to act in accordance with its obligations under the Convention.
+As a result, this passage does not assist the prosecution in establishing that acts of a de facto authority are within the scope of article 1.
+Indeed, the submission proves too much for, if correct, it would entirely negate the requirement that the conduct be that of a public official or other person acting in an official capacity.
+As a result, I consider that the General Comments of the CAT cast little light on the present issue.
+Decisions under article 22(7), UNCAT
+A series of decisions of the CAT under article 22(7) UNCAT addresses the obligation on State Parties under article 3 not to expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
+In these decisions the statements by the CAT in relation to the present issue are inconsistent.
+In SV v Canada (15 May 1996; Communication No 49/1996; UN Doc CAT/C/26/D/49/1996 (2001)) the authors complained that they were at risk of torture by the Sri Lankan authorities, but also complained that they were at risk of torture by the Liberation Tigers of Tamil Eelam (LTTE) a rebel organisation which, the decision recorded, had in 1990 taken control of the Tamil region.
+The CAT, having referred to the definition in article 1, rejected the latter complaint.
+The Committee considers that the issue of whether the State party has an obligation to refrain from expelling a person who might risk pain or suffering inflicted by a non governmental entity, without the consent or acquiescence of the Government, falls outside the scope of article 3 of the Convention.
+Consequently, the issue, on which the authors base part of their claim that they would suffer torture by LTTE or other non governmental entities on return to Sri Lanka, cannot be considered by the Committee. (para 9.5) Similarly, in GRB v Sweden (19 June 1998; CAT/C/20/D/83/1997 at para 6.5) (where the author complained that if returned to Peru she would be at risk of torture both by the State authorities and by Sendero Luminoso) and in MPS v Australia (30 April 2002; CAT/C/28/D/138/1999 at para 7.4) (concerning the risk of torture by the LTTE in Sri Lanka) the CAT repeated this conclusion in almost identical terms.
+By contrast, in Elmi v Australia (14 May 1999; CAT/C/22D/120/1998) the author, a Somali national of the Shikal clan, claimed that his forced return to Somalia would constitute a violation of article 3 because he was a risk of torture at the hands of the Hawiye clan.
+The CAT concluded: 6.5 The Committee does not share the State partys view that the Convention is not applicable in the present case since, according to the State party, the acts of torture the author fears he would be subjected to in Somalia would not fall within the definition of torture set out in article 1 The Committee notes that for a number of years Somalia has been without a central government, that the international community negotiates with the warring factions and that some of the factions operating in Mogadishu have set up quasi governmental institutions and are negotiating the establishment of a common administration.
+It follows then that, de facto, those factions exercise certain prerogatives that are comparable to those normally exercised by legitimate governments.
+Accordingly, the members of those factions can fall, for the purposes of the application of the Convention, within the phrase public officials or other persons acting in an official capacity contained in article 1. 6.7 The Committee further notes, on the basis of the information before it, that the area of Mogadishu where the Shikal mainly reside, and where the author is likely to reside if he ever reaches Mogadishu, is under the effective control of the Hawiye clan, which has established quasi governmental institutions and provides a number of public services.
+Three years later, however, in HMHI v Australia (1 May 2002; CAT/C/28/D/177/2001) the CAT distinguished Elmi on the ground that in the exceptional circumstance of State authority that was wholly lacking, acts by groups exercising quasi governmental authority could fall within the definition of article 1, and thus call for the application of article 3 (at para 6.4).
+It considered that: with three years elapsing since the Elmi decision, Somalia currently possesses a State authority in the form of the Transitional National Government, which has relations with the international community in its capacity as central government, though some doubts may exist as to the reach of its territorial authority and its permanence.
+Accordingly, the Committee does not consider this case to fall within the exceptional situation in Elmi and takes the view that acts of such entities as are now in Somalia commonly fall outside the scope of article 3 of the Convention. (at para 6.4)
+The CAT has considered the matter more recently still, in SS v The Netherlands (19 May 2003; CAT/C/30/D/191/2001).
+The complainant argued that he would be in danger of being tortured by the LTTE if returned to Sri Lanka.
+Referring to the definition of torture in article 1, the Netherlands submitted that acts by non State entities such as the LTTE could not, for the purposes of the Convention, be considered to constitute torture (para 4.6).
+The CAT rejected that submission, observing that: the issue whether the State party has an obligation to refrain from expelling a person who might risk pain or suffering inflicted by a non governmental entity, without the consent or acquiescence of the Government, falls outside the scope of article 3 of the Convention, unless the non governmental entity occupies and exercises quasi governmental authority over the territory to which the complainant would be returned. (at para 6.4)
+The basis on which the CAT sought to distinguish Elmi in HMHI is, with respect, unconvincing.
+If acts by rebel groups exercising de facto authority are capable of falling within the definition of torture in article 1 at all, then that should be the case regardless of whether there exists a central government.
+Furthermore, the suggestion on behalf of the appellant that once there was a central government, notwithstanding doubts as to the reach of its territorial authority and permanence, the risk of torture fell outside the scope of the Convention, cannot be accepted.
+The decision in Elmi did not turn on the notion that refoulement would violate the Convention because there was no effective government in Somalia to protect individuals from non State actors.
+Rather, the decision in Elmi made clear that the Hawiye were a quasi governmental institution performing functions comparable to those normally performed by legitimate governments and that it was that de facto status which brought its conduct within the scope of article 1.
+By contrast with HMHI, the ruling on this point in SS makes eminent sense.
+It reaffirms that acts of a de facto authority are capable of falling within the definition in article 1 and it does so in terms which free it from the unprincipled restriction apparently imposed in HMHI.
+Despite its manifest inconsistencies, therefore, this line of authority does provide some support for the view that the conduct of non State actors exercising de facto authority over territory which they occupy can fall within article 1 of UNCAT.
+Context of international law
+Article 31(2)(c) of the Vienna Convention on the Law of Treaties provides that in interpreting a treaty there shall be taken into account, together with the context, any relevant rules of international law applicable in the relations between the parties.
+In this regard it is necessary to refer to the possible relevance of two matters: State responsibility and recognition of States and governments.
+Relevance of State responsibility
+Before the Court of Appeal the prosecution sought to rely on principles concerning the responsibility of an insurrectional movement which ultimately succeeds in replacing the government of a State, as the NPFL did in Liberia.
+The General Commentary to the International Law Commission Draft Articles on State Responsibility explains that whereas the conduct of an unsuccessful insurrectional movement is not in general attributable to the State, where the movement achieves its aims and installs itself as the new government of the State it would be anomalous if the new regime could avoid responsibility for conduct earlier committed by it.
+The continuity which exists between the new organisation of the State and that of the insurrectional movement leads to the attribution to the State of conduct which the insurrectional movement may have committed during the struggle.
+As a result, article 10 of the Draft Articles provides for the attribution of the conduct of the successful insurrectional movement to the State (J Crawford, The International Law Commissions Articles on State Responsibility: Introduction, Text and Commentaries, (2002), 117).
+This led the prosecution to submit before the Court of Appeal that it would be anomalous if torture committed by a public official of an insurrectional movement exercising governmental functions over territory in which it exercises de facto control should be treated as outside the scope of the Torture Convention, so as to attract no individual responsibility, because the acts were not those of a de jure State, in circumstances where the very same acts would constitute acts of the State for which the State would assume responsibility, if the insurrectional movement was successful and became the de jure government.
+This submission was not pursued before the Supreme Court, rightly in my view.
+The question of the attribution of conduct to States for the purposes of State responsibility is distinct from the responsibility of individuals whether under international law (article 58 of the Draft ILC Articles) or, as in this case, under national law where it implements an international convention.
+It would, moreover, be an unsatisfactory state of affairs if the question whether conduct constituted torture within article 1 of UNCAT were to depend on whether the entity to which the perpetrators belonged subsequently succeeded in replacing the government of the State concerned.
+Relevance of recognition of States and Governments
+The appellants suggested reading of article 1 gives rise to a number of difficulties and anomalies concerning issues of recognition of States and governments.
+First, before the Court of Appeal the appellant submitted that the term person acting in an official capacity is limited to a person acting for or on behalf of a government authority of a recognised State, a submission which was rejected by the Court of Appeal.
+At the hearing before the Supreme Court that submission was no longer maintained.
+For present purposes it is not necessary to embark on a consideration of the relevance, if any, of recognition to statehood in international law.
+It is sufficient to refer to the following observation of Chief Judge Newman in the US Court of Appeals, Second Circuit in Kadic v Karadic 70 F 3d 232 (2d Cir 1995), at 245 with which I respectfully agree.
+The customary international law of human rights, such as the proscription of official torture, applies to states without distinction between recognized and unrecognized states It would be anomalous indeed if non recognition by the United States, which typically reflects disfavour with a foreign regime sometimes due to human rights abuses had the perverse effect of shielding officials of the unrecognized regime from liability for those violations of international law norms that apply only to state actors.
+This observation applies with equal force to the scope of the offence defined in article 1 of UNCAT.
+While in the present case the statehood of Liberia is not in question, the issue nevertheless serves to demonstrate a difficulty inherent in the appellants proposed reading of article 1 which must be capable of uniform application.
+As Mr Swaroop QC, on behalf of the intervener, pointed out, it now seems to be accepted on behalf of the appellant that the offence defined in article 1 can apply in the case of a person acting on behalf of a de facto entity which is not recognised as a State.
+Secondly, in a situation where two or more entities are competing and are both performing governmental functions within the territory of a State, the appellants suggested reading of article 1 would require a determination as to which of them is, at any given time, to be regarded as constituting the government of the State ie which is to be regarded as the de jure government and which is merely exercising de facto control or authority.
+On the appellants suggested reading of the provisions, only a person acting in an official capacity on behalf of the de jure government of the State could commit the offence defined in article 1.
+How is such an evaluation to be performed? At the oral hearing before us, Mr Powles stated that he was neutral as to whether recognition of the entity as the de jure government of the State was required and that while it could be relevant in some circumstances it is not relevant in this case.
+The practice of States in this regard varies enormously and often turns on policy as opposed to legal considerations.
+Whereas the United Kingdom has in the past recognised governments, it no longer does so (HL Debates, vol 48, cols 1121 1122, 28 April 1980; HC Debates, vol 983, Written Answers, cols 277 279, 25 April 1980 and HC Debates, vol 985, Written Answers, col 385, 23 May 1980; Republic of Somalia v Woodhouse Drake & Carey (Suisse) SA [1993] QB 54; C Warbrick, The New British Policy on Recognition of Governments, (1983) 30 ICLQ 568).
+Resort to State practice in recognising or not recognising governments is, therefore, incapable of providing a uniform standard by which the Convention can be applied.
+Thirdly, Mr Powles accepted that in one situation article 1 does apply to a quasi governmental entity exercising de facto control over territory.
+He accepted that the decision of the CAT in Elmi, considered at paras 49 to 52 above, was correct in applying article 1 to a body exercising de facto control over territory in Somalia, but sought to distinguish this as an exceptional situation because in that case there was no central government.
+However, it is difficult to see any basis on which this situation can be distinguished from others in which governmental functions are being performed by bodies in de facto control of territory.
+As the Court of Appeal observed in the present case (at para 55), once it is accepted that the words person acting in an official capacity are wide enough to cover factions exercising governmental functions in territory over which they exercise de facto control, it is difficult to see why there should be any such limitation to the circumstances of Elmi, either as a matter of principle in international law or as a matter of the language of article 1 of UNCAT.
+UK authorities
+The appellant draws attention to the following passage in the speech of Lord Millett in Pinochet (No 3) as emphasising the governmental nature of the act of torture in article 1 UNCAT.
+The definition of torture, both in the Convention and section 134, is in my opinion entirely inconsistent with the existence of a plea of immunity ratione materiae.
+The offence can be committed only by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
+The official or governmental nature of the act, which forms the basis of the immunity, is an essential ingredient of the offence.
+No rational system of criminal justice can allow an immunity which is coextensive with the offence. (at p 277D E) So much is uncontroversial.
+What is more problematical is what constitutes acting in an official capacity, a matter on which, with one exception, the UK authorities provide little assistance.
+The appellant relies on a line of authority concerning the relevant definition of torture for the purposes of immigration and asylum detention policy which, it is submitted, reveals a clear understanding that person acting in an official capacity in article 1 UNCAT refers to persons acting on behalf of the State.
+In R (EO) v Secretary of State for the Home Department [2013] EWHC 1236 (Admin), ACD 116 Burnett J concluded that torture in rule 35(3), Detention Centre Rules 2001 (SI 2001/238) (DCR) and in certain policy documents had a broader meaning than the UNCAT definition.
+It was not confined to acts of public officials or other persons acting in an official capacity or in which they were complicit or acquiesced.
+Subsequent to EO, the Secretary of State introduced statutory guidance entitled Adults at Risk in Immigration Detention (AARSG).
+The definition of torture for the purposes of rule 35 of DCR and the AARSG is set out in Detention Services Order, DSO 09/2016 which sets out the definition in article 1 UNCAT but adds: It includes such acts carried out by terrorist groups exploiting instability or civil war to hold territory.
+In R (Medical Justice) v Secretary of State for the Home Department [2017] EWHC 2461 (Admin); [2017] 4 WLR 198, Ouseley J set out the history of these provisions and noted that: The reference to acts carried out by terrorist groups is not part of the UNCAT definition, but was added following discussions between the SSHD and an NGO, Freedom from Torture; it was suggested by Sir Keir Starmer MP. (at para 33) This, it is said on behalf of the appellant, demonstrates that the courts and the parties to these cases, including the Secretary of State, clearly understood that person acting in an official capacity for the purposes of article 1, UNCAT applies only to a person acting for or on behalf of a State.
+While this might, at first sight, appear to support the appellants case, I am unable to attach any great weight to it.
+The precise question in issue here was not under consideration.
+Moreover, in the particular context of immigration detention it was clearly desirable to include such an express provision for the benefit of persons who, because of their history, should not be detained.
+We were informed that this is only the third occasion on which a prosecution has been brought in the United Kingdom pursuant to section 134, CJA.
+In R v Lama [2014] EWCA Crim 1729; [2017] QB 1171 the present issue did not arise.
+However, in my view considerable assistance is to be found in the first instance decision of Treacy J in R v Zardad, Case No T2203 7676, 7 April 2004.
+Zardad was charged with a conspiracy to torture in Afghanistan in circumstances where the substantive charge would have been that contrary to section 134, CJA.
+The case concerned the period between 1992 and 1996 when the Hezb I Islami faction was in control of Laghman Province.
+During that period Zardad was a chief commander of Hezb I Islami and the military controller of the area of Sarobi.
+Zardad maintained that he was not a public official since there was a recognised government in Afghanistan at the relevant time and the group to which he belonged was not a part of that government and was actively opposed to it.
+The prosecution maintained that he was either a public official de jure or a person acting in an official capacity de facto.
+At a preparatory hearing pursuant to section 29, Criminal Procedure and Investigations Act 1996, Treacy J considered that there was no evidence on which a jury could find that Zardad was a de jure public official.
+However, having surveyed the evidence of the degree of control exercised by Hezb I Islami, he continued: It seems to me that what needs to be looked at is the reality of any particular situation.
+Is there sufficient evidence that Hezb I Islami had a sufficient degree of organisation, a sufficient degree of actual control of an area and that it exercised the type of functions which a government or governmental organisation would exercise? It seems to me that I have to take care not to impose Western ideas of an appropriate structure for government, but to be sensitive to the fact that in countries such as Afghanistan different types of structure may exist, but which may legitimately come within the ambit of an authority which wields power sufficient to constitute an official body. (at para 33) He rejected a submission, based on Elmi, that the mere fact that there is a central government in existence precludes there being a de facto authority of which a person might be a public official or on whose behalf a person might act in a similar capacity.
+He considered that the words person acting in a public capacity included those acting for an entity which had acquired de facto effective control over an area of a country and was exercising governmental or quasi governmental functions in that area.
+In his view, there was material on which a jury could conclude that Zardad was such a de facto public official in an area totally controlled by his organisation which exercised, with a degree of permanence, functions which would be functions of a state authority (at paras 34 38).
+Mr Powles submits that Zardad is wrongly decided.
+However, I find the approach of Treacy J compelling and in conformity with the preponderant weight of material relevant to the interpretation of article 1, UNCAT.
+Zardad is also instructive as to which features are indicative of governmental activity.
+There, in support of its contention that Zardad should be treated as a public official on a de facto basis, the prosecution maintained that Zardad was akin to a Military Governor in control of a province and that he was, accordingly, to be regarded as a quasi official and amenable to the provisions of section 134 CJA.
+Treacy J drew attention, inter alia, to Zardads admission that he was a general within Hekmatyars army (Hekmatyar being the leader of the Hezb I Islami faction), which controlled the Sarobi area, and to the clear command structure within that force.
+The judge referred to the fact that prisons within the controlled area were run by Hezb I Islami which was the only law enforcement authority in the area and to the role of Hezb I Islami and Zardad personally in arresting and imprisoning lawbreakers and in mediating and resolving disputes between individuals.
+Representatives of international organisations and aid agencies would make representations to Zardad, as opposed to any central government authority, if equipment was seized or delayed at any of the checkpoints for which Zardads force was responsible.
+Those who complained of ill treatment, torture and hostage taking regarded Zardad and Hekmatyar as the only official authority in the area which was dominated and controlled by them.
+Against this background Treacy J concluded: The material to which I have referred in this judgment leaves it open for a jury to conclude that Mr Zardad was a de facto public official in an area which was totally controlled by Hezb I Islami and controlled by them with a degree of permanence.
+There is no evidence to show that at any material time the central government exercised any governmental function over the area controlled by Hezb I Islami.
+Such evidence as there is tends to show that Hezb I Islami had total control of the area in question.
+There is evidence that the Hezb I Islami faction exercised functions which could be functions of a state authority. (at para 35)
+US authorities
+The appellant relies on a number of US authorities concerning the Alien Tort Claims Act (ATCA).
+First, reliance is placed on certain passages in the judgment of Chief Judge Newman in Kadic v Karadzic (above).
+The plaintiffs sought remedies against Karadzic, the president of a three man presidency of the self proclaimed Bosnian Serb Republic of Srpska in respect of alleged atrocities including torture committed in Bosnia Herzegovina.
+The complaints alleged that Karadzic acted in an official capacity, either as titular head of Srpska or in collaboration with the government of the recognised nation of the former Yugoslavia.
+Subject matter jurisdiction was grounded, inter alia, in ATCA and the Torture Victim Protection Act of 1991 (TVPA).
+A motion for dismissal succeeded in the District Court, inter alia, on the ground of lack of subject matter jurisdiction.
+The Court of Appeals considered that the requirement of ATCA that the tort be committed in violation of the law of nations was satisfied.
+With regard to torture, the Court of Appeals observed, at p 243: However, torture and summary execution when not perpetrated in the course of genocide or war crimes are proscribed by international law only when committed by state officials or under color of law. and then recited the definition in article 1, UNCAT.
+In a passage cited earlier in this judgment at para 56 the Court of Appeals held that the proscription of official torture applied without distinction to both recognised and non recognised States and continued, at p 245: Appellants allegations entitle them to prove that Karadzics regime satisfies the criteria for a state, for purposes of those international law violations requiring state action.
+Srpska is alleged to control defined territory, control populations within its power, and to have entered into agreements with other governments.
+It has a president, a legislature, and its own currency.
+These circumstances readily appear to satisfy the criteria for a state in all aspects of international law.
+Moreover, it is likely that the state action concept, where applicable for some violations like official torture, requires merely the semblance of official authority.
+The inquiry, after all, is whether a person purporting to wield official power has exceeded internationally recognized standards of civilized conduct, not whether statehood in all its formal aspects exists.
+On behalf of the appellant it is submitted that the Court of Appeals here placed considerable emphasis on the need for the entity under consideration to possess significant State like qualities.
+Moreover, it is said that the State like qualities possessed by Srpska were of a considerably different order from those of NPFL as it existed during the relevant period of 1990 in Liberia.
+However, in common with most of the other US authorities relied on by the appellant, Kadic concerns the distinct question of actionability under ATCA.
+Furthermore, to the extent that it may be relevant, Kadic, notwithstanding the use of the language of statehood, does not support the appellants reading of article 1, UNCAT.
+On the contrary, the Court of Appeals apparently considered that official torture required merely the semblance of official authority and could be committed by a person purporting to wield official power who had exceeded internationally recognised standards of civilised conduct.
+In the result, the conduct of a de facto governmental authority was held to constitute official torture.
+The same is true of a further US decision on which the appellant relies, Mehinovic v Vuckovic, 198 F Supp 2d 1322 (2002) (US District Court, N D Georgia, Atlanta Division).
+The plaintiffs sued a former soldier in the Bosnian Serb Army alleging, inter alia, acts of torture.
+The District Court held that it had jurisdiction under both ATCA and TVPA.
+With regard to ATCA, it noted that official torture violated obligatory norms of customary international law and, after referring to the definition in article 1, UNCAT observed that the beatings carried out by Vuckovic and his accomplices were clearly perpetrated, instigated, and acquiesced in, by persons acting in an official capacity as part of the police or military forces of Republika Srpska. (at p 1346) The appellant relies in particular on the following passage: Vuckovic clearly committed abuses against plaintiffs under official authority.
+In light of the de facto governmental authority of the Republika Srpska, under which Vuckovic served as a soldier, and the control exerted over it by the Serbian government, Vuckovic may be considered also to have been acting under the authority of a foreign nation. (at p 1347) (Emphasis added) In this second passage, the court was considering whether the claim also satisfied the requirement of TVPA that the torture be under actual or apparent authority, or color of law, of any foreign nation.
+This does not detract in any way from the courts earlier conclusion that the conduct was that of persons acting in an official capacity.
+On the contrary, the courts reasoning supports the view that conduct of a de facto governmental authority can constitute official torture within article 1, UNCAT.
+The appellant also relies on further US cases concerning the scope of application of ATCA, in particular the requirement that the tort alleged should have been committed in violation of the law of nations.
+Tel Oren v Libyan Arab Republic, 726 F 2d 774, 233 US App DC 384 (1984), a decision which pre dated UNCAT, concerned the murder of civilians in a terrorist attack on a bus in Israel in March 1978.
+The three members of the court, for different reasons, provided support for the view that torture claims against non State actors were not within the jurisdictional grant of ATCA.
+In particular, Judge Edwards considered that the Palestine Liberation Organisation was not a recognised member of the community of nations and that there was insufficient consensus in 1984 that torture by private actors violated international law.
+In Ali Shafi v Palestinian Authority 642 F 3d 1088 (2011), the US Court of Appeals, Second Circuit endorsed this approach concluding, similarly, that in 2011 the appellants in that case had not demonstrated a consensus in the law of nations that torture by private actors violates international law.
+These cases were concerned with whether under ATCA there is a cause of action for torture against non State actors.
+Neither case was directly concerned with the question whether the conduct of an individual acting on behalf of a quasi governmental entity which is in de facto control of territory may give rise to official torture under UNCAT.
+Nor, in my respectful view, does the decision of the US Supreme Court in Sosa v Alvarez Machain 542 US 692 (2004) on the scope of ATCA cast any light on the present issue.
+Finally, in this regard, I should refer to United States of America v Belfast (US Court of Appeals, 11th Circuit, 15 July 2010) which concerned a series of constitutional challenges to the Torture Act, 18 USC para 2340 2340A.
+In rejecting a challenge brought on the ground that the official conduct requirement of the Act used the phrase under color of law rather than the phrase in an official capacity as found in UNCAT, the Court of Appeals referred to the view of the Senate Executive Committee charged with evaluating UNCAT that there is no distinction between the phrases.
+The scope of the Convention is limited to torture inflicted by or at the instigation or with the consent or acquiescence of a public official or other person acting in an official capacity.
+Thus, the Convention applies only to torture that occurs in the context of governmental authority, excluding torture that occurs as a wholly private act or, in terms more familiar in US law, it applies to torture inflicted under color of law.
+The appellant points to the fact that the Court of Appeals then went on to draw attention to the definition of under color of law in the different context of 42 USC para 1983 ([t]he traditional definition of acting under color of state law requires that the defendant have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law: West v Atkins, 487 US 42, 49 (1988) quoting in turn from United States v Classic, 313 US 299, 326 (1941)).
+Notwithstanding this equiparation of official conduct under UTCA and acting under color of law in a different context, the statement by the Senate Executive Committee and its adoption by the Court of Appeals makes clear that the distinction both sought to draw was between torture that occurs in a the context of governmental authority and torture that occurs as a wholly private act.
+Furthermore, Belfast was concerned solely with conduct which took place in Liberia after Charles Taylor had established himself as President of that State.
+Accordingly, it was not directly concerned with the question whether the conduct of a person acting on behalf of a quasi governmental entity which is in de facto control of territory may give rise to official torture.
+Academic commentators
+We have been referred to academic commentary which tends to support the reading of article 1 for which the prosecution contends.
+Thus, for example, Professor Paola Gaeta (When is the Involvement of State Officials a Requirement for the Crime of Torture?, Journal of International Criminal Justice 6 (2008), 183) explains that, whereas criminal law is usually the prerogative of each State, exceptionally international law is used by States for criminal issues as a tool to achieving stronger cooperation in judicial matters, when they want to oppose forms of trans national criminality jeopardizing their collective interests.
+This premise, , helps clarify why the Torture Convention sets out the requirement of the involvement of state officials for torture.
+The requirement of a state official is therefore needed to avoid that under international law a single conduct although consisting of an infliction of severe mental or physical pain or suffering be considered criminal when it is carried out by private individuals for private purposes.
+Such conduct is not of international concern and is therefore not covered by the Convention.
+In other words, the state official requirement constitutes what one could term the quid pluris, transforming an ordinary criminal offence into an international crime.
+It simply serves the purpose of precluding every single wicked act carried out by private individuals against other private individuals from being elevated to the international level. (at p 190) Similarly, Burgers and Danelius (above) observe (at p 1) that UNCAT does not deal with cases of ill treatment which occur in an exclusively non governmental setting.
+It only relates to practices which occur under some sort of responsibility of public officials or other persons acting in an official capacity.
+Other writers go further in addressing the particular issue with which we are concerned.
+Reference has been made above (at para 31) to the commentary by Nowak and McArthur in which they conclude that the conduct of rebel, guerrilla or insurgent groups which exercise de facto authority in certain regions or of warring factions in so called failing States would fall within the scope of article 1.
+Similarly, the editors of Casseses International Criminal Law, 3rd ed (2013) state: Finally, under the UN Torture Convention, the pain and suffering that is a necessary ingredient of torture must be inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
+The need for this sort of participation of a de jure or de facto state official stems from: i) the fact that in this case torture is punishable under international rules even when it constitutes a single or sporadic episode; and ii) the consequent necessity to distinguish between torture as a common or ordinary crime (for example, torture of a former intimate partner by a sadist) and torture as an international crime covered by international rules on human rights. (at p 133)
+Professor Gaeta returns to this issue in Clapham and Gaeta, Torture by Private Actors and Gold Plating the Offence in National Law, in Guzman et al (eds), Arcs of Global Justice: Essays in Honour of William Schabas, (OUP 2018), Ch 15, which is a dialogue between Professor Gaeta and Professor Andrew Clapham.
+While Professor Gaetas contributions largely address the extent to which States may choose to exceed the scope of article 1 UNCAT, Professor Clapham in the following passage is clearly addressing the scope of article 1.
+But I would go further than you one does not even need the involvement of a state official under the Convention.
+The Convention uses the expression official capacity in contrast to state official.
+As you know, in the Zardad case in the UK this was interpreted to cover a person working against the state as part of a rebellion.
+One could not say that the state acquiesced in the torture, and yet the defendant was convicted and sentenced to 20 years.
+The judge said that in Afghanistan there may be different types of structure which may come within the ambit of an authority which wields power sufficient to constitute an official body.
+It seems to me that one can have torture by an authority even where that authority is fighting against the state.
+I admit that this is just one case.
+But as we know it is more likely that prosecutions will be brought for international crimes against non state actors than against state actors.
+I have not found many national prosecutions for torture by state actors. (at p 292, footnotes omitted) The committee stressed in the later HMHI v Australia, in which it distinguished Elmi on the facts, that its finding in Elmi as to groups exercising quasi governmental authority was restricted to the exceptional circumstances of state authority that was wholly lacking.
+But notwithstanding what the Committee reiterated was the exceptional situation in Elmi, the Committees view is open to doubt.
+Even more doubtful is the ruling in the English criminal case of R v Zardad (Faryadi) that, even where there exists a government within a state, the expression a public official or other person acting in an official capacity in article 1 of the Torture Convention can extend to people who are acting for an entity which has acquired de facto effective control over an area of a country and is exercising governmental or quasi governmental functions in that area. (at para 7.121, footnotes omitted)
+The only unequivocal academic statement of the contrary view to which we were referred was that of Professor Roger OKeefe, International Criminal Law, OUP, 2015, Ch 7.
+Having referred to the decision of the CAT in Elmi he continued: It is time to draw the threads together.
+Unfortunately, however, in the absence of any further explanation it is difficult to understand the basis of the authors objection.
+Conclusion
+First, I am persuaded that the prosecution is correct in its interpretation of article 1 UNCAT and section 134 CJA.
+I consider that the words of those provisions in their ordinary meaning support this reading.
+They are sufficiently wide to include conduct by a person acting in an official capacity on behalf of an entity exercising governmental control over a civilian population in a territory over which it exercises de facto control.
+In particular, I can see no justification for imposing the limitation on those words for which the appellant contends, which would require the conduct to be on behalf of the government of the State concerned.
+On the contrary, the words in their ordinary meaning are apt to include conduct on behalf of a de facto authority which seeks to overthrow the government of the State.
+This reading also conforms with the object and purpose of the provisions.
+Here I attach particular significance to the purpose of the Convention in seeking to establish a regime for the international regulation of official torture as opposed to private acts of individuals.
+Torture perpetrated on behalf of a de facto governmental authority is clearly a matter of proper concern to the international community and within the rationale of the scheme.
+In addition, some support for this conclusion can be found in the decisions of the CAT under article 22(7), UNCAT and it is favoured by the preponderant weight of academic comment.
+I would express the principle in the following terms.
+A person acting in an official capacity in section 134(1) of the Criminal Justice Act 1988 includes a person who acts or purports to act, otherwise than in a private and individual capacity, for or on behalf of an organisation or body which exercises, in the territory controlled by that organisation or body and in which the relevant conduct occurs, functions normally exercised by governments over their civilian populations.
+Furthermore, it covers any such person whether acting in peace time or in a situation of armed conflict.
+Secondly, I would emphasise, that exercise of governmental functions is a core requirement.
+It will be noted that the formulation of the principle set out above differs from that of the Court of Appeal, which referred to a person acting for or on behalf of an organisation or body which exercises or purports to exercise the functions of government .
+Section 134(1) refers to a person acting in the performance or purported performance of his official duties.
+In the Court of Appeals formulation, however, the adjective purported has been transposed so as to refer to the function being exercised by the organisation or body.
+This is an error as the functions being exercised by the organisation or body must be governmental in character.
+Purporting to exercise such functions would not be sufficient.
+Thirdly, the exercise of a governmental function must be distinguished from purely military activity not involving any governmental function.
+I note that, in this regard, Treacy J in Zardad distinguished governmental functions from the activities of a rebel faction which has not acquired a sufficient degree of control, permanence, authority or organisation to fulfil criteria sufficient for it to be recognised as an authority wielding official or quasi official powers (at para 36).
+However, insurrectional forces engaged in fighting the forces of the central government of a State may nevertheless exercise sufficient governmental authority over territory and persons under their control for acts done on their behalf to be official acts for this purpose.
+Thus, in Zardad the area controlled by Hezb I Islami was controlled essentially by military force but the group also exercised governmental functions.
+The failure to take account of the distinction between governmental and military activity leads me to the view that the formulation adopted by Sweeney J in the present case in situations of armed conflict, individuals who act in a non private capacity and as part of an authority wielding entity is too broad.
+It is also necessary to bear in mind that there are circumstances in which torture might constitute a crime against humanity or a war crime contrary to UK law, whether or not performed by a public official or a person acting in an official capacity.
+However, for reasons explained at para 20 above, that is not so with regard to the alleged facts in the present case.
+Fourthly, it is necessary to say something about what may be the indicative features of governmental authority in any particular case.
+I consider that Treacy J in Zardad correctly identified the required approach when he observed that it is necessary to look at the reality of any particular situation and to consider whether, at the relevant time, the entity in question had a sufficient degree of organisation and actual control over an area and whether it exercised the type of functions which a government or governmental organisation would exercise.
+This will require examination of evidence as to the position on the ground.
+In doing so it will be necessary to make allowance for the particular conditions which may make administration difficult and for different views of appropriate structures of government.
+The question will be whether the entity has established a sufficient degree of control, authority and organisation to become an authority exercising official or quasi official powers, as opposed to a rebel faction or a mere military force.
+The one reservation I have about the approach of Treacy J. in Zardad is his view that the entity would be required to establish itself with a degree of permanence.
+This, it seems to me, is likely to be a flexible concept and the fact that the long term survival of an entity may be an unlikely prospect should not prevent it from being considered a de facto government provided that it has effectively established itself as such.
+Furthermore, it is clear that the continued existence of a central government would not prevent an entity exercising the authority described above from being a de facto government in respect of the territory under its control.
+The application of this approach to the particular facts in Zardad has been considered at para 65 above.
+Fifthly, if this matter proceeds to trial, the question whether the appellant acted in an official capacity as alleged in the indictment will be a matter for the jury and it will be open to the defence to argue that the evidence does not come up to the mark.
+However, this appeal arises out of a ruling at a preparatory hearing under section 31(3) CPIA and the issue for the judge at that hearing was the correct interpretation of the words person acting in an official capacity in section 134 CJA.
+The Court of Appeal expressed its conclusion on the legal test in different terms from those of Sweeney J but, nevertheless, considered that the test the judge applied was not materially different on the facts of the case and that his ruling on the factual submission of no case to answer was not affected.
+Since the hearing in the Court of Appeal, however, the prosecution has served a further memorandum in which its expert witness clarifies that his use of the term control in his evidence refers to military rather than administrative control over the area.
+In particular, he states that NPFL were the de facto military authority but that military control is very different from administrative control. (See para 7, above.) This is a matter of some importance for the reasons expressed at para 79, above.
+Furthermore, for the reasons set out in para 77 above, I would modify the test adopted by the Court of Appeal.
+Accordingly, in these circumstances, I consider that it is necessary for this matter to be remitted to the judge for him to reconsider it in the light of these further developments and in the light of further expert evidence.
+I would, therefore, on this narrow basis, allow the appeal, quash the determination of the Court of Appeal and remit the matter to the judge for further consideration in the light of the new evidence from the prosecution expert and the judgment of this Court.
+For this purpose, I would make an order under rule 9.16(5), Criminal Procedure Rules that the appellant be permitted to make, within 28 days from the date on which judgment is given in this appeal, a new application to dismiss.
+Lord Reed: (dissenting)
+I regret that I am unable to agree with the careful reasoning of Lord Lloyd Jones.
+Bearing in mind in particular that this courts decision may be considered in other jurisdictions, it is right that I should indicate briefly the reasons why I find more persuasive the arguments advanced on behalf of the appellant.
+First, article 31(1) of the Vienna Convention on the Law of Treaties sets out the general rule of interpretation of treaties: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
+Applying that general rule to article 1 of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), the ordinary meaning of the phrase a public official or other person acting in an official capacity does not in my opinion extend to a member of an insurgent group engaged in armed insurrection against the government of the country.
+That point does not admit of much elaboration.
+The ordinary meaning of the words a public official is reasonably clear, and would not in my opinion apply to such a person.
+The words or other person acting in an official capacity would, in their ordinary meaning, extend to persons who were not public officials but who were acting in a similar capacity, by reason for example of the outsourcing of public functions to private agencies.
+The core idea seems to me to be that the person in question is acting on behalf of the state.
+I have difficulty in applying the words acting in an official capacity to persons participating in an armed insurrection against the government.
+Secondly, article 31(1) of the Vienna Convention requires the terms used in a treaty to be given their ordinary meaning in their context.
+The context, so far as UNCAT concerns the position of the state where the torture occurs, includes in the first place the final sentence in article 1, which excludes from the definition of torture pain or suffering arising only from, inherent in or incidental to lawful sanctions.
+The reference to lawful sanctions supports the view that article 1 is concerned with conduct for which the state bears responsibility.
+It is far from obvious how the exclusion of lawful sanctions is to be applied if the conduct of insurgents controlling an area of territory falls within the scope of article 1.
+Are they to be regarded as being in a position to impose lawful sanctions, despite their lack of any lawful authority for their conduct? If so, by what standards is the lawfulness of any sanctions they might impose to be judged? But if not, can no distinction be drawn between punishment which falls within the scope of UNCAT and punishment which does not?
+The context also includes article 2(1): Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
+The territory under the jurisdiction of a state would ordinarily be understood as being the territory over which it has de jure control.
+If torture carried out by insurgents in territory under their de facto control falls within the scope of UNCAT, it follows that article 2(1) imposes an obligation on states with which they cannot comply: they cannot take effective measures in relation to territory which they do not control.
+UNCAT cannot sensibly be interpreted in a way which would have the effect of imposing an obligation on states with which they cannot comply: lex non cogit ad impossibilia.
+That strongly suggests that article 2(1) cannot have been intended to apply in those circumstances, which in turn implies that the definition of torture in article 1 cannot have been intended to apply to torture committed by insurgent forces, without the consent or acquiescence of the state in question.
+Thirdly, article 31(1) of the Vienna Convention requires a treaty to be interpreted in the light of its object and purpose.
+UNCAT is intended, as its preamble recites, to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world.
+Nevertheless, by the time UNCAT was concluded, the prohibition of torture was already recognised as a peremptory norm of international law, enshrined in article 7 of the International Covenant on Civil and Political Rights (ICCPR).
+The objective of UNCAT, as appears from its substantive provisions, was more specific: to impose obligations on states actively to prevent and punish torture, including by means of universal jurisdiction.
+Thus, as I have explained, article 2 requires states to take effective measures to prevent acts of torture, as defined in article 1, in any territory under their jurisdiction.
+Article 3 prohibits states from expelling, returning or extraditing persons to other states where they are liable to be tortured.
+Articles 4 to 9 make provision for states to exercise an extra territorial jurisdiction in respect of acts of torture, requiring them to prosecute persons within their jurisdiction who are alleged to be responsible for torture, wherever it occurred, and to punish them if convicted.
+It is for the purpose of those obligations that article 1 adopts a definition of torture which is specifically concerned with the conduct of public officials and other persons acting in an official capacity: a definition which is narrower than the concept of torture in the ICCPR (or in other international law instruments, such as common article 3 of the Geneva Conventions, the Rome Statute of the International Criminal Court, or the statutes of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda).
+Articles 4 to 9 of UNCAT, in requiring states to exercise a universal jurisdiction in respect of acts committed in other states and having no connection to themselves, are particularly significant in international law, since they make inroads into national sovereignty.
+Two implications follow.
+First, if there is a real doubt as to the interpretation of article 1, it is more likely, other things being equal, that the states parties will have intended a narrower rather than a more expansive reading, since they are unlikely to have intended to diminish their sovereignty further than they had made reasonably clear.
+Secondly, one would expect there to be a compelling justification for states to accept the presence in an international treaty of provisions having the effect of diminishing their sovereignty.
+Such a justification exists if article 1 is understood as applying to persons exercising official functions on behalf of the state, or at least acting with its consent or acquiescence, since states might be reluctant to prosecute such persons for acts committed in the course of their duties.
+There would be no reason to apprehend such reluctance, on the other hand, if torture were committed by persons who were unconnected with the state and had neither its authority nor consent, nor even its acquiescence.
+That is indeed the explanation given in Burgers and Danelius, The United Nations Convention against Torture A Handbook on the Convention against Torture (1988), p 120: The problem with which the Convention was meant to deal was that of torture in which the authorities of a country were themselves involved and in respect of which the machinery of investigation and prosecution might therefore not function normally.
+A typical case is torture inflicted by a policeman or an officer of the investigating or prosecuting authority.
+But many variations are conceivable.
+It could be that the torturer is not directly connected with any public authority but that the authorities have hired him to help gather information or have at least accepted or tolerated his act.
+All such situations where the responsibility of the authorities is somehow engaged are supposed to be covered by the rather wide phrase appearing in article 1: inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
+The two authors were actively involved in the preparation of UNCAT, Herman Burgers as chairman rapporteur of the Working Group set up to draw up the text of the Convention, and Hans Danelius as the author of the initial draft of the Convention and as an active participant in all sessions of the Working Group.
+Other respected experts in this field have also interpreted article 1 as being confined to situations where the responsibility of state authorities is engaged: that is my understanding of what is said, for example, in Boulesbaa, The UN Convention on Torture and the Prospects for Enforcement (1999), pp 27 28; in Gaeta, When is the Involvement of State Officials a Requirement for the Crime of Torture? (2008) 6 JICJ 183, 184 and 190, and in Gaeta and Clapham, Torture by Private Actors and Gold Plating the Offence in National Law: An Exchange of Emails in Honour of William Schabas, in de Guzman and Amann (eds), Arcs of Global Justice: Essays in Honour of William Schabas (2018), p 290; and, perhaps most emphatically, in OKeefe, International Criminal Law (2015), Part Two, para 7.121.
+Fourthly, it is apparent that while many states parties, including the United Kingdom, have followed the wording of article 1 when implementing UNCAT in their domestic law, there are also states which have adopted a definition based on the understanding that article 1 is confined to situations where the responsibility of state authorities is engaged.
+Examples include Norway (where section 174 of the Penal Code of 2005 imposes liability on any public official, defined as any person in central or local government service, or engaged by central or local government to perform a service or work), Spain (where article 174(1) of the Criminal Code provides that torture is committed by the public authority or officer who, abusing his office ).
+Turkey (where article 94(1) of the Criminal Code imposes liability on any civil servant ; article 94(4) imposes an ancillary liability on any other person found to have participated in this offence, who shall be subject to the same punishment as the civil servant).
+The implication of the respondents argument is that those states parties have failed to implement UNCAT correctly.
+Counsel for the respondent emphasised that Austria, whose representatives had proposed the wording adopted in article 1, provides in the relevant provision of its Criminal Code (section 312a) that public officials within the meaning of this provision shall also be those who, in the event of the absence or default of the public authorities, are effectively acting as officials.
+What is of greater interest, however, is that this provision was only introduced in 2013.
+Is it to be inferred that, until then, Austria had failed to implement correctly a provision of UNCAT which had been adopted at its own suggestion?
+Fifthly, an interpretation of article 1 which confined it to situations where the conduct was the responsibility of the state was consistently adopted by the United Nations Committee Against Torture in its decisions prior to about 2003.
+In GRB v Sweden, Communication No 83/1997, 15 May 1998, para 6.5, the Committee stated: The Committee considers that the issue whether the State party has an obligation to refrain from expelling a person who might risk pain or suffering inflicted by a non governmental entity, without the consent or acquiescence of the Government, falls outside the scope of article 3 of the Convention.
+The Committee went somewhat further in Elmi v Australia, Communication No 120/98, 14 May 1999, para 6.5, but in circumstances where there was no functioning state: The Committee notes that for a number of years Somalia has been without a central government, that the international community negotiates with the warring factions and that some of the factions operating in Mogadishu have set up quasi governmental institutions and are negotiating the establishment of a common administration.
+It follows then that, de facto, those factions exercise certain prerogatives that are comparable to those normally exercised by legitimate governments.
+Accordingly, the members of those factions can fall, for the purposes of the application of the Convention, within the phrase public officials or other persons acting in an official capacity contained in article 1.
+The following day, in SV v Canada, Communication No 49/1996, 15 May 1999, para 9.5, the Committee reiterated its established position: The Committee considers that the issue of whether the State party has an obligation to refrain from expelling a person who might risk pain or suffering inflicted by a non governmental entity, without the consent or acquiescence of the Government, falls outside the scope of article 3 of the Convention.
+That was repeated in MPS v Australia, Communication No 138/1999, 30 April 2002, para 7.4: The Committee recalls its previous jurisprudence that the issue whether the state party has an obligation to refrain from expelling a person who might risk pain or suffering inflicted by a non governmental entity, without the consent or acquiescence of the Government, falls outside the scope of article 3 of the Convention.
+The special nature of the Elmi case was made clear by the Committee in the case of HMHI v Australia, Communication No 177/2001, 1 May 2002, para 6.4: The Committee recalls its jurisprudence that the State partys obligation under article 3 to refrain from forcibly returning a person to another State where there are substantial grounds of a risk of torture, as defined in article 1 of the Convention, which requires actions by a public official or other person acting in an official capacity.
+Accordingly, in GRB v Sweden, the Committee considered that allegations of a risk of torture at the hands of Sendero Luminoso, a non state entity controlling significant portions of Peru, fell outside the scope of article 3 of the Convention.
+In Elmi v Australia, the Committee considered that, in the exceptional circumstance of State authority that was wholly lacking, acts by groups exercising quasi governmental authority could fall within the definition of article 1, and thus call for the application of article 3.
+The Committee considers that, with three years elapsing since the Elmi decision, Somalia currently possesses a State authority in the form of the Transitional National Government, which has relations with the international community in its capacity as central government, though some doubts may exist as to the reach of its territorial authority and its permanence.
+Accordingly, the Committee does not consider this case to fall within the exceptional situation in Elmi, and takes the view that acts of such entities as are now in Somalia commonly fall outside the scope of article 3 of the Convention.
+A different approach was, however, adopted by the Committee in SS v Netherlands, Communication No 191/2001, 5 May 2003, para 6.4: The Committee observes that the issue whether the State party has an obligation to refrain from expelling a person who might risk pain or suffering inflicted by a non governmental entity, without the consent or acquiescence of the Government, falls outside the scope of article 3 of the Convention, unless the non governmental entity occupies and exercises quasi governmental authority over the territory to which the complainant would be returned.
+The Committees change of approach was neither acknowledged nor explained.
+On the contrary, the passages quoted above from Elmi v Australia, SV v Canada and MPS v Australia were cited as supporting this approach.
+The approach adopted by the Committee more recently in MKM v Australia, Communication No 681/2015, 10 May 2017, was seemingly more orthodox.
+It referred at para 8.6 to the failure of the state in question to provide protection from torture by non state actors, and referred in para 8.7 to its General Comment No 2 (2008), discussed below, and to the failure on the part of a state party to exercise due diligence to intervene and stop the abuses [by non state actors] that are impermissible under the Convention, for which it may bear responsibility.
+A parallel but slower development to that in SS v Netherlands can be seen in the Committees General Comments.
+In its General Comment No 2: Implementation of article 2 by States Parties, 24 January 2008, CAT/C/GC/2, the Committee adopted an approach which treated article 1 of the Convention as not normally applying to the actions of non state actors.
+In that regard, it stated at para 15: States bear international responsibility for the acts and omissions of their officials and others, including agents, private contractors, and others acting in official capacity or acting on behalf of the State, in conjunction with the State, under its direction or control, or otherwise under colour of law.
+The only situations in which the actions of non state actors would be relevant were where the state consented or acquiesced in them, or failed in its duty under article 2 to take effective measures to prevent them.
+In that regard, the Committee stated at para 18: where State authorities or others acting in official capacity or under colour of law, know or have reasonable grounds to believe that acts of torture or ill treatment are being committed by non state officials or private actors and they fail to exercise due diligence to prevent, investigate, prosecute and punish such non state officials or private actors consistently with the Convention, the State bears responsibility and its officials should be considered as authors, complicit or otherwise responsible under the Convention for consenting to or acquiescing in such impermissible acts.
+Since the failure of the State to exercise due diligence to intervene to stop, sanction and provide remedies to victims of torture facilitates and enables non State actors to commit acts impermissible under the Convention with impunity, the States indifference or inaction provides a form of encouragement and/or de facto permission.
+Following that approach, UNCAT would not normally apply to the conduct of insurgent forces within territory under their control.
+Ten years later, however, the Committee adopted a different approach in its General Comment No 4 (2017): Implementation of article 3 of the Convention in the context of article 22, 4 September 2018, CAT/C/GC/4.
+Citing Elmi v Australia and MKM v Australia, it stated at para 30: States parties should refrain from deporting individuals to another State where there are substantial grounds for believing that they would be in danger of being subjected to torture or other ill treatment at the hands of non state entities, including groups that are unlawfully exercising actions that inflict severe pain or suffering for purposes prohibited by the Convention, and over which the receiving State has no or only partial de facto control, or whose acts it is unable to prevent or whose impunity it is unable to counter.
+There appears, therefore, to have been a development in the Committees interpretation of article 1 in relatively recent times, which may be reflected also in the amendment of Austrian law mentioned earlier.
+Indeed, the Committee has in recent years been urging a number of states to amend their domestic law so as to conform to its current interpretation of article 1: see, for example, its Concluding Observations on the sixth periodic report on Austria dated 27 January 2016, CAT/C/AUT/CO/6, para 5(a), and its Concluding Observations on the seventh periodic report on the Netherlands dated 18 December 2018, CAT/C/NLD/CO/7, para 7.
+This development may reflect wider changes.
+The period since the end of the Cold War has witnessed a proliferation of non international armed conflict.
+In that context, the use of torture by non state actors has become an increasingly serious problem.
+Against that background, to the extent that the Committees current approach to the interpretation of UNCAT departs from the meaning which might have been envisaged in 1984, that development might perhaps be argued to be an example of evolutionary interpretation.
+That there has been a development must however be borne in mind when considering the relevance of the Committees interpretation to the present proceedings, which are concerned with events alleged to have occurred during 1990.
+An interpretation of UNCAT which was only adopted by the Commission in relatively recent times, long after the events in question, cannot be applied when assessing the criminality of those events, bearing in mind the fundamental principle, recognised in both international and domestic law, of nulla poena sine lege.
+That principle must be respected in relation to section 134 of the Criminal Justice Act 1988, having regard to the Human Rights Act 1998 and the Convention right arising under article 7 of the European Convention on Human Rights (ECHR).
+Accordingly, even if article 1 of UNCAT might now be interpreted, consistently with the Committees recent statements, as extending to the actions of non state entities exercising quasi governmental functions over which the state has no control, it does not follow that it should be interpreted in the same way when considering the criminality of actions which took place in 1990.
+Finally, it is essential, both under our domestic law and under international law (for example, article 7 of the ECHR and article 15 of the ICCPR), that the principle of legal certainty should be respected, above all in criminal proceedings.
+As the law of this country has long recognised, that means that criminal legislation whose meaning is unclear should be given a restrictive rather than an expansive interpretation.
+The fact that considerations of policy might be better served by a broad construction do not justify a departure from that principle.
+For the foregoing reasons, I would have allowed the appeal.
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+This case concerns the framework which will govern an application for the grant of development consent for the construction of a third runway at Heathrow Airport.
+This is a development scheme promoted by the appellant, Heathrow Airport Ltd (HAL), the owner of the airport.
+As a result of consideration over a long period, successive governments have come to the conclusion that there is a need for increased airport capacity in the South East of England to foster the development of the national economy.
+An independent commission called the Airports Commission was established in 2012 under the chairmanship of Sir Howard Davies to consider the options.
+In its interim report dated 17 December 2013 the Airports Commission reached the conclusion that there was a clear case for building one new runway in the South East, to come into operation by 2030.
+In that report the Airports Commission set out scenarios, including a carbon traded scenario under which overall carbon dioxide (CO) emissions were set at a cap consistent with a goal to limit global warming to 2C.
+The Commission reduced the field of proposals to three main candidates.
+Two of these involved building additional runway capacity at Heathrow Airport, either to the north west of the existing two runways (the NWR Scheme) or by extending the existing northern runway (the ENR Scheme).
+The third involved building a second runway at Gatwick airport (the G2R Scheme).
+The Airports Commission carried out an extensive consultation on which scheme should be chosen.
+In its final report dated 1 July 2015 (the Airports Commission Final Report) the Commission confirmed that there was a need for additional runway capacity in the South East by 2030 and concluded that, while all three options could be regarded as credible, the NWR Scheme was the best way to meet that need, if combined with a significant package of measures which addressed environmental and community impacts.
+The Government carried out reviews of the Airports Commissions analysis and conclusions.
+It assessed the Airports Commission Final Report to be sound and robust.
+On 14 December 2015 the Secretary of State for Transport (the Secretary of State) announced that the Government accepted the case for airport expansion; agreed with, and would consider further, the Airports Commissions short list of options; and would use the mechanism of a national policy statement (NPS) issued under the Planning Act 2008 (the PA 2008) to establish the policy framework within which to consider an application by a developer for a development consent order (DCO).
+The announcement also stated that further work had to be done in relation to environmental impacts, including those arising from carbon emissions.
+In parallel with the development of national airports policy, national and
+international policy to combat climate change has also been in a state of development.
+The Climate Change Act 2008 (the CCA 2008) was enacted on the same day as the PA 2008.
+It sets a national carbon target (section 1) and requires the Government to establish carbon budgets for the UK (section 4).
+There are mechanisms in the CCA 2008 to adjust the national target and carbon budgets (in sections 2 and 5, respectively) as circumstances change, including as scientific understanding of global warming develops.
+In 1992, the United Nations adopted the United Nations Framework
+Convention on Climate Change. 197 states are now parties to the Convention.
+Following the 21st Conference of the parties to the Convention, on 12 December 2015 the text of the Paris Agreement on climate change was agreed and adopted.
+The Paris Agreement set out certain obligations to reduce emissions of greenhouse gases, in particular CO2, with the object of seeking to reduce the rate of increase in global warming and to contain such increase to well below 2oC above, and if possible to 1.5oC, above pre industrial levels.
+On 22 April 2016 the United Kingdom signed the Paris Agreement and on 17 November 2016 the United Kingdom ratified the Agreement.
+An expansion of airport capacity in the South East would involve a substantial increase in CO2 emissions from the increased number of flights which would take place as a result.
+The proposals for such expansion have therefore given rise to a considerable degree of concern as to the environmental impact it would be likely to have on global warming and climate change.
+This is one aspect of the proposals for expansion of airport capacity, among many others, which have made the decision whether to proceed with such expansion a matter of controversy.
+On 25 October 2016, the Secretary of State announced that the NWR Scheme was the Governments preferred option.
+In February 2017 the Government commenced consultation on a draft of an Airports NPS which it proposed should be promulgated pursuant to the PA 2008 to provide the national policy framework for consideration of an application for a DCO in respect of the NWR Scheme.
+A further round of consultation on a draft of this NPS was launched in October 2017.
+There were many thousands of responses to both consultations.
+In June 2018 the Government published its response to the consultations.
+It also published a response to a report on the proposed scheme dated 1 November 2017 by the Transport Committee (a Select Committee of the House of Commons).
+On 5 June 2018 the Secretary of State laid before Parliament the final version of the Airports NPS (the ANPS), together with supporting documents.
+As is common ground on this appeal, the policy framework set out in the ANPS makes it clear that issues regarding the compatibility of the building of a third runway at Heathrow with the UKs obligations to contain carbon emissions and emissions of other greenhouse gases could and should be addressed at the stage of the assessment of an application by HAL for a DCO to allow it to proceed with the development.
+As is also common ground, the ANPS makes it clear that the emissions obligations to be taken into account at the DCO stage will be those which are applicable at that time, assessed in the light of circumstances and the detailed proposals of HAL at that time.
+On 25 June 2018 there was a debate on the proposed ANPS in the House of Commons, followed by a vote approving the ANPS by 415 votes to 119, a majority of 296 with support from across the House.
+On 26 June 2018 the Secretary of State designated the ANPS under section 5(1) of the PA 2008 as national policy.
+It is the Secretary of States decision to designate the ANPS which is the subject of legal challenge in these proceedings.
+Objectors to the NWR Scheme commenced a number of claims against the Secretary of State to challenge the lawfulness of the designation of the ANPS on a wide variety of grounds.
+For the most part, those claims have been dismissed in the courts below in two judgments of the Divisional Court (Hickinbottom LJ and Holgate J) in the present proceedings, [2019] EWHC 1070 (Admin); [2020] PTSR 240, and an associated action ([2019] EWHC 1069 (Admin)) and in the judgment of the Court of Appeal in the present proceedings: [2020] EWCA Civ 214; [2020] PTSR 1446.
+The Divisional Court dismissed all the claims brought by objectors, including those brought by the respondents to this appeal (Friends of the Earth FoE and Plan B Earth).
+FoE is a non governmental organisation concerned with climate change.
+Plan B Earth is a charity concerned with climate change.
+However, the Court of Appeal allowed appeals by FoE and Plan B Earth and granted declaratory relief stating that the ANPS is of no legal effect and that the Secretary of State had acted unlawfully in failing to take into account the Paris Agreement in making his decision to designate the ANPS.
+The Court of Appeal set out four grounds for its decision: (i) The Secretary of State breached his duty under section 5(8) of the PA 2008 to give an explanation of how the policy set out in the ANPS took account of Government policy, which was committed to implementing the emissions reductions targets in the Paris Agreement (the section 5(8) ground); (ii) The Secretary of State breached his duty under section 10 of the PA 2008, when promulgating the ANPS, to have regard to the desirability of mitigating and adapting to climate change, in that he failed to have proper regard to the Paris Agreement (the section 10 ground); (iii) The Secretary of State breached his duty under article 5 of the Strategic Environmental Assessment Directive (the SEA Directive, Directive 2001/42/EC of the European Parliament and of the Council on the assessment of the effects of certain plans and programmes on the environment) to issue a suitable environmental report for the purposes of public consultation on the proposed ANPS, in that he failed to refer to the Paris Agreement (the SEA Directive ground); and (iv) The Secretary of State breached his duty under section 10 of the PA 2008, when promulgating the ANPS, in that he failed to have proper regard to (a) the desirability of mitigating climate change in the period after 2050 (the post 2050 ground) and (b) the desirability of mitigating climate change by restricting emissions of non CO impacts of aviation, in particular nitrous oxide (the non CO2 emissions ground).
+The Court of Appeal also rejected a submission by HAL, relying on section 31 of the Senior Courts Act 1981, that it should exercise its discretion as to remedy to refuse any relief, on the grounds that (HAL argued) it was highly likely that even if there had been no breach of duty by the Secretary of State the decision whether to issue the ANPS would have been the same.
+HAL appeals to this court with permission granted by the court.
+HAL is joined in the proceedings as an interested party.
+It has already invested large sums of money in promoting the NWR Scheme and wishes to carry it through by applying for a DCO in due course and then building the proposed new runway.
+The Secretary of State has chosen not to appeal and has made no submissions to us.
+However, HAL is entitled to advance all the legal arguments which may be available in order to defend the validity of the ANPS.
+Prior to the Covid 19 pandemic, Heathrow was the busiest two runway airport in the world.
+The pandemic has had a major impact in reducing aviation and the demand for flights.
+However, there will be a lead time of many years before any third runway at Heathrow is completed and HALs expectation is that the surplus of demand for aviation services over airport capacity will have been restored before a third runway would be operational.
+Lord Anderson QC for HAL informed the court that HAL intends to proceed with the NWR Scheme despite the pandemic.
+The Planning Act 2008
+We are grateful to the Divisional Court for their careful account of the PA 2008, on which we draw for this section.
+The PA 2008 established a new unified development consent procedure for nationally significant infrastructure projects defined to include certain airport related development including the construction or alteration of an airport that is expected to be capable of providing air passenger services for at least 10m passengers per year (sections 14 and 23).
+Originally, many of the primary functions under the Act were to be exercised by the Infrastructure Planning Commission, established under section 1.
+However, those functions were transferred to the Secretary of State by the Localism Act 2011.
+The mischiefs that the Act was intended to address were identified in the White Paper published in May 2007, Planning for a Sustainable Future (Cm 7120) (the 2007 White Paper).
+Prior to the PA 2008, a proposal for the construction of a new airport or extension to an airport would have required planning permission under the Town and Country Planning Act 1990.
+An application for permission would undoubtedly have resulted in a public inquiry, whether as an appeal against refusal of consent or a decision by the Secretary of State to call in the matter for his own determination.
+As paragraph 3.1 of the 2007 White Paper said: A key problem with the current system of planning for major infrastructure is that national policy and, in particular, the national need for infrastructure, is not in all cases clearly set out.
+This can cause significant delays at the public inquiry stage, because national policy has to be clarified and the need for the infrastructure has to be established through the inquiry process and for each individual application.
+For instance, the absence of a clear policy framework for airports development was identified by the inquiry secretary in his report on the planning inquiry as one of the key factors in the very long process for securing planning approval for Heathrow Terminal 5.
+Considerable time had to be taken at the inquiry debating whether there was a need for additional capacity.
+The Government has since responded by publishing the Air Transport White Paper to provide a framework for airport development.
+This identifies airport development which the Government considers to be in the national interest, for reference at future planning inquiries.
+But for many other infrastructure sectors, national policy is still not explicitly set out, or is still in the process of being developed.
+Paragraph 3.2 identified a number of particular problems caused by the absence of a clear national policy framework.
+For example, inspectors at public inquiries might be required to make assumptions about national policy and national need, often without clear guidance and on the basis of incomplete evidence.
+Decisions by Ministers in individual cases might become the means by which government policy would be expressed, rather than such decisions being framed by clear policy objectives beforehand.
+In the absence of a clear forum for consultation at the national level, it could be more difficult for the public and other interested parties to have their say in the formulation of national policy on infrastructure.
+The ability of developers to make long term investment decisions is influenced by the availability of clear statements of government policy and objectives, and might be adversely affected by the absence of such statements.
+The 2007 White Paper proposed that national policy statements would set the policy framework for decisions on the development of national infrastructure.
+They would integrate the Governments objectives for infrastructure capacity and development with its wider economic, environmental and social policy objectives, including climate change goals and targets, in order to deliver sustainable development.
+The role of Ministers would be to set policy, in particular the national need for infrastructure development (para 3.4).
+Paragraph 3.11 envisaged that any public inquiry dealing with individual applications for development consent would not have to consider issues such as whether there is a case for infrastructure development, or the types of development most likely to meet the need for additional capacity, since such matters would already have been addressed in the NPS.
+It was said that NPSs should have more weight than other statements of policy, whether at a national or local level: they should be the primary consideration in the determination of an application for a DCO (para 3.12), although other relevant considerations should also be taken into account (para 3.13).
+To provide democratic accountability, it was said that NPSs should be subject to Parliamentary scrutiny before being adopted (para 3.27).
+In line with the 2007 White Paper recommendation, Part 2 of the PA 2008 provides for NPSs which give a policy framework within which any application for development consent, in the form of a DCO, is to be determined.
+Section 5(1) gives the Secretary of State the power to designate an NPS for development falling within the scope of the Act; and section 6(1) provides that [t]he Secretary of State must review each [NPS] whenever the Secretary of State thinks it appropriate to do so.
+The content of an NPS is governed by section 5(5) (8) which provide that: set out the relative weight to be given to specified (5) The policy set out in [an NPS] may in particular (a) set out, in relation to a specified description of development, the amount, type or size of development of that description which is appropriate nationally or for a specified area; (b) set out criteria to be applied in deciding whether a location is suitable (or potentially suitable) for a specified description of development; (c) criteria; (d) identify one or more locations as suitable (or potentially suitable) or unsuitable for a specified description of development; (e) identify one or more statutory undertakers as appropriate persons to carry out a specified description of development; (f) set out circumstances in which it is appropriate for a specified type of action to be taken to mitigate the impact of a specified description of development. [An NPS] must give reasons for the policy set out in the (6) If [an NPS] sets out policy in relation to a particular description of development, the statement must set out criteria to be taken into account in the design of that description of development. (7) statement. (8) The reasons must (in particular) include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change.
+As is made clear, the NPS may (but is not required to) identify a particular location for the relevant development.
+provides (so far as relevant to these claims): In addition, under the heading Sustainable development, section 10 (1) This section applies to the Secretary of States functions under sections 5 and 6. (2) The Secretary of State must, in exercising those functions, do so with the objective of contributing to the achievement of sustainable development. (3) For the purposes of subsection (2) the Secretary of State must (in particular) have regard to the desirability of (a) mitigating, and adapting to, climate change;
+The process for designation of an NPS is also set out in the Act.
+The PA 2008 imposed for the first time a transparent procedure for the public and other consultees to be involved in the formulation of national infrastructure policy in advance of any consideration of an application for a DCO.
+The Secretary of State produces a draft NPS, which is subject to (i) an appraisal of sustainability (AoS) (section 5(3)), (ii) public consultation and publicity (section 7), and (iii) Parliamentary scrutiny (sections 5(4) and 9).
+In addition, there is a requirement to carry out a strategic environmental assessment under the SEA Directive as transposed by the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004/1633) (the SEA Regulations) (see regulation 5(2) of the SEA Regulations).
+The consultation and publicity requirements are set out in section 7, which so far as relevant provides: (1) This section sets out the consultation and publicity requirements referred to in sections 5(4) and 6(7). (2) The Secretary of State must carry out such consultation, and arrange for such publicity, as the Secretary of State thinks appropriate in relation to the proposal.
+This is subject to subsections (4) and (5). (3) In this section the proposal means (a) the statement that the Secretary of State proposes to designate as [an NPS] for the purposes of this Act or (b) (as the case may be) the proposed amendment. (4) The Secretary of State must consult such persons, and such descriptions of persons, as may be prescribed. (5) If the policy set out in the proposal identifies one or more locations as suitable (or potentially suitable) for a specified description of development, the Secretary of State must ensure that appropriate steps are taken to publicise the proposal. (6) The Secretary of State must have regard to the responses to the consultation and publicity in deciding whether to proceed with the proposal.
+A proposed NPS must be laid before Parliament (section 9(2) and (8)).
+The Act thus provides an opportunity for a committee of either House of Parliament to scrutinise a proposed NPS and to make recommendations; and for each House to scrutinise it and make resolutions (see section 9(4)).
+An NPS is not the end of the process.
+It simply sets the policy framework within which any application for a DCO must be determined.
+Section 31 provides that, even where a relevant NPS has been designated, development consent under the PA 2008 is required for development to the extent that the development is or forms part of a nationally significant infrastructure project.
+Such applications must be made to the relevant Secretary of State (section 37).
+Chapter 2 of Part 5 of the Act makes provision for a pre application procedure.
+This provides for a duty to consult pre application, which extends to consulting relevant local authorities and, where the land to be developed is in London, the Greater London Authority (section 42).
+There are also duties to consult the local community, and to publicise and to take account of responses to consultation and publicity (sections 47 49; and see also regulation 12 of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (SI 2017/572), which makes provision for publication of and consultation on preliminary environmental information).
+Any application for a DCO must be accompanied by a consultation report (section 37(3)(c)); and adequacy of consultation is one of the criteria for acceptance of the application (section 55(3) and (4)(a)).
+Part 6 of the PA 2008 is concerned with Deciding applications for orders granting development consent.
+Once the application has been accepted, section 56 requires the applicant to notify prescribed bodies and authorities and those interested in the land to which the application relates, who become interested parties to the application (section 102).
+The notification must include a notice that interested parties may make representations to the Secretary of State.
+Section 60(2) provides that where a DCO application is accepted for examination there is a requirement to notify any local authority for the area in which land, to which the application relates, is located (see section 56A)) and, where the land to be developed is in London, the Greater London Authority, inviting them each to submit a local impact report (section 60(2)).
+The Secretary of State may appoint a panel or a single person to examine the application (the Examining Authority) and to make a report setting out its findings and conclusions, and a recommendation as to the decision to be made on the application.
+The examination process lasts six months, unless extended (section 98); and the examination timetable is set out in the Infrastructure Planning (Examination Procedure) Rules 2010 (SI 2010/103) (the Examination Rules).
+In addition to local impact reports (section 60), the examination process involves written representations (section 90), written questions by the Examining Authority (rules 8 and 10 of the Examination Rules), and hearings (which might be open floor and/or issue specific and/or relating to compulsory purchase) (sections 91 93).
+As a result of the examination process, the provisions of the proposed DCO may be amended by either the applicant or the Examination Authority, eg in response to the representations of interested parties; and it is open to the Secretary of State to modify the proposed DCO before making it.
+Section 104 constrains the Secretary of State when determining an application for a DCO for development in relation to which an NPS has effect, in the following terms (so far as relevant to these claims): (2) In deciding the application the Secretary of State must have regard to (a) any [NPS] which has effect in relation to development of the description to which the application relates (a relevant [NPS]), any local impact report , (b) (c) any matters prescribed in relation to development of the description to which the application relates, and (d) any other matters which the Secretary of State thinks are both important and relevant to the Secretary of States decision. (3) The Secretary of State must decide the application in accordance with any relevant [NPS], except to the extent that one or more of subsections (4) to (8) applies. (4) This subsection applies if the Secretary of State is satisfied that deciding the application in accordance with any relevant [NPS] would lead to the United Kingdom being in breach of any of its international obligations. (5) This subsection applies if the Secretary of State is satisfied that deciding the application in accordance with any relevant [NPS] would lead to the Secretary of State being in breach of any duty imposed on the Secretary of State by or under any enactment. (6) This subsection applies if the Secretary of State is satisfied that deciding the application in accordance with any relevant [NPS] would be unlawful by virtue of any enactment. (7) This subsection applies if the Secretary of State is satisfied that the adverse impact of the proposed development would outweigh its benefits. (8) This subsection applies if the Secretary of State is satisfied that any condition prescribed for deciding an application otherwise than in accordance with [an NPS] is met. (9) For the avoidance of doubt, the fact that any relevant [NPS] identifies a location as suitable (or potentially suitable) for a particular description of development does not prevent one or more of subsections (4) to (8) from applying. (1) In deciding an application for an order granting development consent, the Secretary of State may disregard representations if the Secretary of State considers that the representations (a) (b) NPS].
+In this section representation includes evidence. relate to the merits of policy set out in [an (2)
+Section 104 is complemented by section 106 which, under the heading Matters which may be disregarded when determining an application, provides (so far as relevant to these claims): That is also reflected in sections 87(3) and 94(8), under which the Examining Authority may disregard representations (including evidence) or refuse to allow representations to be made at a hearing if it considers that they relate to the merits of the policy set out in [an NPS] .
+By section 120(1), a DCO may impose requirements in connection with the development for which consent is granted, eg it may impose conditions considered appropriate or necessary to mitigate or control the environmental effects of the development.
+Section 120(3) is a broad provision enabling a DCO to make provision relating to, or to matters ancillary to, the development for which consent is granted including any of the matters listed in Part 1 of Schedule 5 (section 120(4)).
+That schedule lists a wide range of potentially applicable provisions, including compulsory purchase, the creation of new rights over land, the carrying out of civil engineering works, the designation of highways, the operation of transport systems, the charging of tolls, fares and other charges and the making of byelaws and their enforcement.
+Section 13 concerns Legal challenges relating to [NPSs].
+Section 13(1) provides: A court may entertain proceedings for questioning [an NPS] or anything done, or omitted to be done, by the Secretary of State in the course of preparing such a statement only if the proceedings are brought by a claim for (a) judicial review, and (b) the claim form is filed before the end of the period of six weeks beginning with the day after (i) the day on which the statement is designated as [an NPS] for the purposes of this Act, or (ii) published. (if later) the day on which the statement is It was under section 13 that the claims by objectors to the ANPS were brought.
+The Climate Change Act 2008
+Again, we gratefully draw on the account given by the Divisional Court.
+As they explain, the UK has for a long time appreciated the desirability of tackling climate change, and wished to take a more rigorous domestic line.
+In the 2003 White Paper, Our Energy Future Creating a Low Carbon Economy, the Government committed to reduce CO2 emissions by 60% on 1990 levels by 2050; and to achieve real progress by 2020 (which equated to reductions of 26 32%).
+The 60% figure emanated from the EU Council of Ministers Community Strategy on Climate Change in 1996, which determined to limit emissions to 550 parts per million (ppm) on the basis that to do so would restrict the rise in global temperatures to 2C above pre industrial levels which, it was then considered, would avoid the serious consequences of global warming.
+However, by 2005, there was scientific evidence that restricting emissions to 550ppm would be unlikely to be effective in keeping the rise to 2C; and only stabilising CO2 emissions at something below 450ppm would be likely to achieve that result.
+Parliament addressed these issues in the CCA 2008.
+Section 32 established a Committee on Climate Change (the CCC), an independent public body to advise the UK and devolved Governments and Parliaments on tackling climate change, including on matters relating to the UKs statutory carbon reduction target for 2050 and the treatment of greenhouse gases from international aviation.
+Section 1 gives a mandatory target for the reduction of UK carbon emissions.
+At the time of designation of the ANPS, it provided: It is the duty of the Secretary of State [then, the Secretary of State for Energy and Climate Change: now, the Secretary of State for Business, Enterprise and Industrial Strategy (BEIS)] to ensure that the net UK carbon account for the year 2050 is at least 80% lower than the 1990 baseline.
+The figure of 80% was substituted for 60% during the passage of the Bill, as evolving scientific knowledge suggested that the lower figure would not be sufficient to keep the rise in temperature to 2C in 2050.
+Therefore, although the CCA 2008 makes no mention of that temperature target, as the CCC said in its report on the Paris Agreement issued in October 2016 (see para 73 below): This 2050 target was derived as a contribution to a global emissions path aimed at keeping global average temperatures to around 2C above pre industrial levels.
+The statutory target of a reduction in carbon emissions by 80% by 2050 was Parliaments response to the international commitment to keep the global temperature rise to 2C above pre industrial levels in 2050.
+Since the designation of the ANPS, the statutory target has been made more stringent.
+The figure of 100% was substituted for 80% in section 1 of the CCA 2008 by the Climate Change Act 2008 (2050 Target Amendment) Order 2019/1056.
+The Secretary of State for BEIS has the power to amend that percentage (section 2(1) of the CCA 2008), but only: (i) if it appears to him that there have been significant developments in scientific knowledge about climate change since the passing of the Act, or developments in European or international law or policy (section 2(2) and (3)): the Explanatory Note to the Act says, as must be the case, that this power might be used in the event of a new international treaty on climate change; (ii) after obtaining, and taking into account, advice from the CCC (section 3(1)); and (iii) subject to Parliamentary affirmative resolution procedure (section 2(6)).
+Section 1 of the CCA 2008 sets a target that relates to carbon only.
+Section 24 enables the Secretary of State for BEIS to set targets for other greenhouse gases, but subject to similar conditions to which an amendment to the section 1 target is subject.
+In addition to the carbon emissions target set by section 1 and to ensure compliance with it (see sections 5(1)(b) and 8) the Secretary of State for BEIS is also required to set for each succeeding period of five years, at least 12 years in advance, an amount for the net UK carbon account (the carbon budget); and ensure that the net UK carbon account for any period does not exceed that budget (section 4).
+The carbon budget for the period including 2020 was set to be at least 34% lower than the 1990 baseline.
+Section 10(2) sets out various matters which are required to be taken into account when the Secretary of State for BEIS sets, or the CCC advises upon, any carbon budget, including: (a) scientific knowledge about climate change; (b) technology relevant to climate change; (c) economic circumstances, and in particular the likely impact of the decision on the economy and the competitiveness of particular sectors of the economy; (d) fiscal circumstances, and in particular the likely impact of the decision on taxation, public spending and public borrowing; (e) of the decision on fuel poverty; (f) (h) (i) international aviation and international shipping circumstances at European and international level; the estimated amount of reportable emissions from social circumstances, and in particular the likely impact Therefore, although for the purposes of the CCA 2008 emissions from greenhouse gases from international aviation do not generally count as emissions from UK sources (section 30(1)), by virtue of section 10(2)(i), in relation to any carbon budget, the Secretary of State for BEIS and the CCC must take such emissions into account.
+The evidence for the Secretary of State explains that the CCC has interpreted that as requiring the UK to meet a 2050 target which includes these emissions.
+The CCC has advised that, to meet the 2050 target on that basis, emissions from UK aviation (domestic and international) in 2050 should be no higher than 2005 levels, ie 37.5 megatons (million tonnes) of CO2 (MtCO2).
+This is referred to by the respondents as the Aviation Target.
+However, the Aviation Policy Framework issued by the Government in March 2013 explains that the Government decided not to take a decision on whether to include international aviation emissions in its carbon budgets, simply leaving sufficient headroom in those budgets consistent with meeting the 2050 target including such emissions, but otherwise deferring a decision for consideration as part of the emerging Aviation Strategy.
+The Aviation Strategy is due to re examine how the aviation sector can best contribute its fair share to emissions reductions at both the UK and global level.
+It is yet to be finalised.
+The SEA Directive
+Again, in this section we gratefully draw on the careful account given by the Divisional Court.
+As they explain, Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment as amended (the EIA Directive), as currently transposed by the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (SI 2017/571), requires a process within normal planning procedures. (For the purposes of these claims, the transposing regulations have not materially changed over the relevant period; and we will refer to them collectively as the EIA Regulations.) The SEA Directive as transposed by the SEA Regulations concerns the environmental impact of plans and programmes.
+The SEA Directive and Regulations applied to the ANPS.
+The EIA Directive would apply when there was a particular development for which development consent was sought, at the DCO stage.
+Recital (1) to the SEA Directive states: Article 174 of the Treaty provides that Community policy on the environment is to contribute to, inter alia, the preservation, protection and improvement of the quality of the environment, the protection of human health and the prudent and rational utilisation of natural resources and that it is to be based on the precautionary principle.
+Article 6 of the Treaty provides that environmental protection requirements are to be integrated into the definition of Community policies and activities, in particular with a view to promoting sustainable development.
+As suggested here, the SEA Directive relies upon the precautionary principle where appropriate.
+Recital (4) states: Environmental assessment is an important tool for integrating environmental considerations into the preparation and adoption of certain plans and programmes which are likely to have significant effects on the environment in the member states, because it ensures that such effects of implementing plans and programmes are taken into account during their preparation and before their adoption.
+Recital (9) states: This Directive is of a procedural nature, and its requirements should either be integrated into existing procedures in member states or incorporated in specifically established procedures.
+With a view to avoiding duplication of the assessment, member states should take account, where appropriate, of the fact that assessments will be carried out at different levels of a hierarchy of plans and programmes.
+Thus, the requirements of the SEA Directive are essentially procedural in nature; and it may be appropriate to avoid duplicating assessment work by having regard to work carried out at other levels or stages of a policy making process (see article 5(2) (3) below).
+Recital (17) states: The environmental report and the opinions expressed by the relevant authorities and the public, as well as the results of any transboundary consultation, should be taken into account during the preparation of the plan or programme and before its adoption or submission to the legislative procedure.
+The objectives of the SEA Directive are set out in article 1: The objective of this Directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development, by ensuring that, in accordance with this Directive, an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment.
+Article 3(1) requires an environmental assessment to be carried out, in accordance with articles 4 to 9, for plans and programmes referred to in article 3(2) (4) which are likely to have significant environmental effects.
+Article 3(2) requires strategic environmental assessment generally for any plan or programme which is prepared for (inter alia) transport, town and country planning or land use and which sets the framework for future development consent for projects listed in Annexes I and II to the EIA Directive.
+Strategic environmental assessment is also required for other plans and programmes which are likely to have significant environmental effects (article 3(4)).
+By virtue of sections 104 and 106 of the PA 2008, the ANPS designated under section 5 sets out the framework for decisions on whether a DCO for the development of an additional runway at Heathrow under Part 6 of that Act should be granted.
+That development would, in due course, require environmental impact assessment under the EIA Directive and Regulations; and there is no dispute that the ANPS needed to be subjected to strategic environmental assessment under the SEA Directive and the SEA Regulations.
+Article 2(b) of the SEA Directive defines environmental assessment for the purposes of the Directive: environmental assessment shall mean the preparation of an environmental report, the carrying out of consultations, the taking into account of the environmental report and the results of the consultations in decision making and the provision of information on the decision in accordance with articles 4 to 9.
+Article 4(1) requires environmental assessment to be carried out during the preparation of a plan or programme and before its adoption . , which in this instance would refer to the Secretary of States decision to designate the ANPS.
+Article 5 sets out requirements for an environmental report.
+By article 2(c): environmental report shall mean the part of the plan or programme documentation containing the information required in article 5 and Annex I.
+In the case of the ANPS the environmental report was essentially the AoS.
+Article 5(1) provides: Where an environmental assessment is required under article 3(1), an environmental report shall be prepared in which the likely significant effects on the environment of implementing the plan or programme, and reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme, are identified, described and evaluated.
+The information to be given for this purpose is referred to in Annex I. Annex I states, under the heading, Information referred to in article 5(1): The information to be provided under article 5(1), subject to article 5(2) and (3), is the following: the environmental characteristics of areas likely (a) an outline of the contents, main objectives of the plan or programme and relationship with other relevant plans and programmes; (b) the relevant aspects of the current state of the environment and the likely evolution thereof without implementation of the plan or programme; (c) to be significantly affected; (d) any existing environmental problems which are relevant to the plan or programme including, in particular, those relating to any areas of a particular environmental importance, such as areas designated pursuant to [the Habitats and Birds Directives]; (e) the environmental protection objectives, established at international, Community or member state level, which are relevant to the plan or programme and the way those objectives and any environmental considerations have been taken into account during its preparation; (f) the likely significant effects on the environment, including on issues such as biodiversity, population, human health, fauna, flora, soil, water, air, climatic factors, material assets, cultural heritage including architectural and archaeological heritage, landscape and the interrelationship between the above factors; (g) the measures envisaged to prevent, reduce and as fully as possible offset any significant adverse effects on the environment of implementing the plan or programme; (h) an outline of the reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken including any difficulties (such as technical deficiencies or lack of know how) encountered in compiling the required information; (i) a description of the measures envisaged concerning monitoring in accordance with article 10; (j) a non technical summary of the information provided under the above headings. (2) The environmental report prepared pursuant to paragraph 1 shall include the information that may reasonably be required taking into account current knowledge and methods of assessment, the contents and level of detail in the plan or programme, its stage in the decision making process and the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment. (3) Relevant information available on environmental effects of the plans and programmes and obtained at other levels of decision making or through other Community legislation may be used for providing the information referred to in Annex I. (Emphasis added) Thus, the information required by the combination of article 5(1) and Annex I is subject to article 5(2) and (3), which provide:
+Accordingly, the information which is required to be included in an environmental report, whether by article 5(1) itself or by that provision in conjunction with Annex I, is qualified by article 5(2) and (3) in a number of respects.
+First, the obligation is only to include information that may reasonably be required, which connotes the making of a judgment by the plan making authority.
+Second, that judgment may have regard to a number of matters, including current knowledge and assessment methods.
+In addition, the contents and level of detail in a plan such as the ANPS, the stage it has reached in the decision making process and the ability to draw upon sources of information used in other decision making, may affect the nature and extent of the information required to be provided in the environmental report for the strategic environmental assessment.
+The stage reached by the ANPS should be seen in the context of the statutory framework of the PA 2008, as set out above (see paras 19 38).
+Section 5(5) authorises the Secretary of State to set out in an NPS the type and size of development appropriate nationally or for a specified area and to identify locations which are either suitable or unsuitable for that development.
+In addition, the Secretary of State may set out criteria to be applied when deciding the suitability of a location.
+Section 104(3) requires the Secretary of State to decide an application for a DCO in accordance with a relevant NPS, save in so far as any one or more of the exceptions in section 104(4) (8) applies, which include the situation where the adverse impacts of a proposal are judged to outweigh its benefits (section 104(7)).
+Section 106(1) empowers the Secretary of State to disregard a representation objecting to such a proposal in so far as it relates to the merits of a policy contained in the NPS.
+In the present case, the Secretary of State made it plain in the strategic
+environmental assessment process that the AoS drew upon and updated the extensive work which had previously been carried out by, and on behalf of, the Airports Commission, including numerous reports to the Airports Commission and its own final report.
+It is common ground that the Secretary of State was entitled to take that course.
+Article 6 of the SEA Directive sets out requirements for consultation.
+Article 6(1) requires that the draft plan or programme and the environmental report be made available to the public and to those authorities designated by a member state under article 6(3) which, by virtue of their specific environmental responsibilities, are likely to be concerned by the environmental effects of implementing plans and programmes.
+In England, the designated authorities are Natural England, Historic England and the Environment Agency (see regulation 4 of the SEA Regulations).
+In the case of the ANPS, the Secretary of State also had to consult those designated authorities on the scope and level of detail of the information to be included in the environmental report (article 5(4)).
+In relation to the consultation process, article 6(2) provides: The authorities referred to in para 3 and the public referred to in para 4 shall be given an early and effective opportunity within appropriate time frames to express their opinion on the draft plan or programme and the accompanying environmental report before the adoption of the plan or programme or its submission to the legislative procedure.
+The public referred to in [article 6(4)] is a cross reference to the rules made by each member state for defining the public affected, or likely to be affected by, or having an interest in the decision making on the plan.
+Regulation 13(2) of the SEA Regulations leaves this to be determined as a matter of judgment by the plan making authority.
+Article 8 requires the environmental report prepared under article 5, the opinions expressed under article 6, and the results of any transboundary consultations under article 7 to be taken into account during the preparation of the plan or programme and before its adoption or submission to the legislative procedure.
+In Cogent Land LLP v Rochford District Council [2012] EWHC 2542 (Admin); [2013] 1 P & CR 2, Singh J held that a defect in the adequacy of an environmental report prepared for the purposes of the SEA Directive may be cured by the production of supplementary material by the plan making authority, subject to there being consultation on that material (see paras 111 126).
+He held that articles 4, 6(2) and 8 of the Directive, along with their transposition in the SEA Regulations, are consistent with that conclusion; and that none of the previous authorities on the SEA Directive (which he reviewed) suggested otherwise.
+He held that SEA is not a single document, still less is it the same thing as the environmental report.
+Rather, it is a process, during the course of which an environmental report must be produced (see para 112).
+The Court of Appeal endorsed this analysis in No Adastral New Town Ltd v Suffolk Coastal District Council [2015] EWCA Civ 88; [2015] Env LR 28, in deciding that SEA failures in the early stages of an authoritys preparation of its Core Strategy (a statutory development plan) were capable of being, and were in fact, cured by the steps taken in subsequent stages (see paras 48 54).
+We agree with this analysis.
+It follows that strategic environmental assessment may properly involve an
+iterative process; and that it is permissible for a plan making authority to introduce alterations to its draft plan subject to complying with the information requirements in article 5 and the consultation requirements in articles 6 and 7.
+Regulation 12 of the SEA Regulations transposes the main requirements in article 5 of the Directive governing the content of an environmental report as follows (emphasis added): (2) The report shall identify, describe and evaluate the likely significant effects on the environment of implementing the plan or programme; and (a) (b) reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme. (3) The report shall include such of the information referred to in Schedule 2 to these Regulations as may reasonably be required, taking account of current knowledge and methods of assessment; the contents and level of detail in the plan or (a) (b) programme; (c) decision making process; and (d) the extent to which certain measures are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment. the stage of the plan or programme in the Schedule 2 replicates the list of items in Annex I to the SEA Directive.
+No issue is raised as to the adequacy of that transposition.
+As the Divisional Court observed, it is plain from the language as may reasonably be required that the SEA Regulations, like the SEA Directive, allow the plan making authority to make a judgment on the nature of the information in Schedule 2 and the level of detail to be provided in an environmental report, whether as published initially or in any subsequent amendment or supplement.
+Factual background
+At the heart of the challenge to the ANPS is the Paris Agreement (para 7 above) which acknowledged that climate change represents an urgent and potentially irreversible threat to human societies and the planet (Preamble to the Decision to adopt the Paris Agreement).
+In article 2 the Paris Agreement sought to enhance the measures to reduce the risks and impacts of climate change by setting a global target of holding the increase in the global average temperature to well below 2C above pre industrial levels and pursuing efforts to limit the temperature increase to 1.5C above pre industrial levels.
+Each signatory of the Paris Agreement undertook to take measures to achieve that long term global temperature goal so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century (article 4(1)).
+Each party agreed to prepare, communicate and maintain successive nationally determined contributions (NDCs) that it intended to achieve and to pursue domestic mitigation measures with the aim of achieving the objectives of such NDCs (article 4(2)).
+A partys successive NDC was to progress beyond its current NDC and was to reflect its highest possible ambition (article 4(3)).
+Notwithstanding the common objectives set out in articles 2 and 4(1), the Paris Agreement did not impose an obligation on any state to adopt a binding domestic target to ensure that those objectives were met.
+The specific legal obligation imposed in that regard was to meet any NDC applicable to the state in question.
+So far as concerns the United Kingdom, it is common ground that the relevant NDC is that adopted and communicated on behalf of the EU, which set a binding target of achieving 40% reduction of 1990 emissions by 2030.
+This is less stringent than the targets which had already been set in the fourth and fifth carbon budgets issued pursuant to section 4 of the CCA 2008, which were respectively a 50% reduction on 1990 levels for the period 2023 2027 and a 57% reduction for the period 2028 2032.
+Before the United Kingdom had signed or ratified the Paris Agreement two Government Ministers made statements in the House of Commons about the Governments approach to the Paris Agreement.
+On 14 March 2016 the Minister of State for Energy, Andrea Leadsom MP, told the House of Commons that the Government believe we will need to take the step of enshrining the Paris goal of net zero emissions in UK law the question is not whether, but how we do it, and there is an important set of questions to be answered before we do.
+Ten days later (24 March 2016) Amber Rudd MP, Secretary of State for Energy and Climate Change, responded to an oral question on what steps her department was taking to enshrine the net zero emissions commitment of the Paris Climate Change Conference by stating that the question is not whether we do it but how we do it.
+The Government received advice from the CCC on the UKs response to the Paris goal.
+At a meeting on 16 September 2016 the CCC concluded that while a new long term target would be needed to be consistent with the Paris goal, the evidence was not sufficient to specify that target now.
+In October 2016 the CCC published a report entitled UK Climate Action following the Paris Agreement on what domestic action the Government should take as part of a fair contribution to the aims of the Paris Agreement.
+In that report the CCC stated that the goals of the Paris Agreement involved a higher level of global ambition in the reduction of greenhouse gases than that which formed the basis of the UKs existing emissions reduction targets.
+But the CCC advised that it was neither necessary nor appropriate to amend the 2050 target in section 1 of the CCA 2008 or alter the level of existing carbon budgets at that time.
+It advised that there would be several opportunities to revisit the UKs targets in the future and that the UK 2050 target is potentially consistent with a wide range of global temperature outcomes.
+In its executive summary (p 7) the CCC summarised its advice: Do not set new UK emissions targets now The five yearly cycle of pledges and reviews created by the Paris Agreement provides regular opportunities to consider increasing UK ambition.
+In October 2017 the Government published its Clean Growth Strategy which set out its policies and proposals to deliver economic growth and decreased emissions.
+In Annex C in its discussion of UK climate action it acknowledged the risks posed by the growing level of global climate instability.
+It recorded the global goals of the Paris Agreement and that global emissions of greenhouse gases would need to peak as soon as possible, reduce rapidly thereafter and reach a net zero level in the second half of this century.
+It recorded the CCCs advice in these terms: In October 2016 the [CCC] said that the Paris Agreement target is more ambitious than both the ambition underpinning the UK 2050 target and previous international agreements, but that the UK should not set new UK emissions targets now, as it already had stretching targets and achieving them will be a positive contribution to global climate action.
+The CCC advised that the UKs fair contribution to the Paris Agreement should include measures to maintain flexibility to go further on UK targets, the development of options to remove greenhouse gases from the air, and that its targets should be kept under review.
+In December 2017 Plan B Earth and 11 other claimants commenced judicial review proceedings against the Secretary of State for BEIS and CCC alleging that the Secretary of State had unlawfully failed to revise the 2050 target in section 1 of the CCA 2008 in line with the Paris Agreement.
+The Secretary of State pleaded: [While] the Government is fully committed to the objectives in the Paris Agreement, the legal obligation upon the Parties is to prepare, communicate and maintain nationally determined contributions to reduce net emissions, with a view to achieving the purpose of holding global average temperature increases to well below 2C above pre industrial levels and pursuing efforts to limit them to 1.5C.
+This is not the same as a legal duty or obligation for the Parties, individually or collectively, to achieve this aim. (Emphasis in original) The CCC also explained its position in its written pleadings: The CCC recommended no change to the existing UK 2050 target (at that time, October 2016), not because a more ambitious target was unfeasible, but rather because the existing UK target was potentially consistent with more ambitious global temperature goals, including that in the Paris Agreement.
+At an oral hearing ([2018] EWHC 1892 (Admin); [2019] Env LR 13), Supperstone J refused permission to proceed with the judicial review, holding among other things that the Paris Agreement did not impose any legally binding target on each contracting party, that section 2 of the CCA 2008 gave the Secretary of State the power, but did not impose a duty, to amend the 2050 target in the event of developments in scientific knowledge or European or international law or policy, and that on the basis of the advice of the CCC, the Secretary of State was plainly entitled to refuse to change the 2050 target.
+Asplin LJ refused permission to appeal on 22 January 2019.
+In January 2018 the CCC published An independent assessment of the UKs Clean Growth Strategy.
+In that report the CCC explained that the aim of the Paris Agreement for emissions to reach net zero in the second half of the century was likely to require the UK to revise its statutory 2050 target to seek greater reductions and advised that it is therefore essential that actions are taken now to enable these deeper reductions to be achieved (p 21).
+The CCC invited the Secretary of State for BEIS to seek further advice from it and review the UKs long term emissions targets after the publication of the report by the Intergovernmental Panel on Climate Change (IPCC) on the implications of the Paris Agreements 1.5C goal.
+In January 2018 the Government published A Green Future: Our 25 Year Plan to Improve the Environment in which it undertook to continue its work in providing international leadership to meet the goals of the Paris Agreement (for example, p 118).
+In early 2018 governments, including the UK Government, were able to review a draft of the IPCC report and in early June 2018 the UK Government submitted final comments on the draft of the IPCC report.
+On 17 April 2018 the Government announced at the Commonwealth Heads of Government Meeting that after the publication of the IPCC report later that year, it would seek the advice of the CCC on the implications of the Paris Agreement for the UKs long term emissions reductions targets.
+At the same time the Government was working to develop an aviation strategy which would address aviation emissions.
+In April 2018, after public consultation, the Department for Transport published Beyond the Horizon: The Future of UK Aviation Next Steps towards an Aviation Strategy in which it undertook to investigate technical and policy measures to address aviation emissions and how those measures related to the recommendations of the CCC.
+It stated (para 6.24): The government will look again at what domestic policies are available to complement its international approach and will consider areas of greater scientific uncertainty, such as the aviations contribution to non carbon dioxide climate change effects and how policy might make provision for their effects.
+On 1 May in response to an oral parliamentary question concerning the offshore wind sector Claire Perry MP, Minister of State for Energy and Clean Growth, stated that the UK was the first developed nation to have said that it wanted to understand how to get to a zero carbon economy by 2050.
+On 5 June 2018, the Government issued its response to the consultation on the draft ANPS and the Secretary of State laid the proposed ANPS before Parliament.
+On the same day, the Secretary of State presented a paper on the proposed ANPS to a Cabinet sub committee giving updated information on the three short listed schemes and the Governments preference for the NWR scheme.
+In relation to aviation emissions it stated that it was currently uncertain how international carbon emissions would be incorporated into the Governments carbon budget framework, that policy was developing and would be progressed during the development of the Aviation Strategy.
+The Governments position remained that action to address aviation emissions was best taken at an international level.
+On 14 June 2018 the Chair of the CCC (Lord Deben) and Deputy Chair (Baroness Brown) wrote to the Secretary of State expressing surprise that he had not referred to the legal targets in the CCA 2008 or the Paris Agreement commitments in his statement to the House of Commons on the proposed ANPS on 5 June and stressing the need for his department to consider aviations place in the overall strategy for UK emissions reduction.
+They stated that the Government should not plan for higher levels of aviation emissions since this would place an unreasonably large burden on other sectors.
+The Secretary of State responded on 20 June 2018 stating that the Government remained committed to the UKs climate change target and that the proposed ANPS made it clear that an increase in carbon emissions that would have a material impact on the Governments ability to meet its carbon reduction targets would be a reason to refuse development consent for the NWR.
+He stated that the Government was confident that the measures and requirements set out in the proposed ANPS provided a strong basis for mitigating the environmental impacts of expansion.
+He explained that the forthcoming Aviation Strategy would put in place a framework for UK carbon emissions to 2050, which ensures that aviation contributes its fair share to action on climate change, taking into account the UKs domestic and international obligations.
+After the Parliamentary debate on 25 June 2018 (para 11 above), the Secretary of State designated the ANPS as national policy on 26 June 2018 (para 12 above).
+Section 5 of the ANPS focused on the potential impacts of the NWR Scheme and the assessments that any applicant would have to carry out and the planning requirements which it would have to meet in order to gain development consent.
+In its discussion of greenhouse gas emissions the ANPS stated that the applicant would have to undertake an environmental impact assessment quantifying the greenhouse gas impacts before and after mitigation so that the project could be assessed against the Governments carbon obligations.
+In para 5.82 the ANPS stated: Any increase in carbon emissions alone is not a reason to refuse development consent, unless the increase in carbon emissions resulting from the project is so significant that it would have a material impact on the ability of Government to meet its carbon reduction targets, including carbon budgets.
+As in this appeal a challenge has been made as to the factual basis of the Secretary of States decision not to consider the possible new domestic emissions targets which might result from the Paris Agreement, it is necessary to mention the evidence before the Divisional Court on this matter.
+In her first witness statement Ms Caroline Low, the Director of the Airport Capacity Programme at the Department for Transport, stated (para 458): In October 2016 the CCC said that the Paris Agreement is more ambitious than both the ambition underpinning the UK 2050 target and previous international agreements but that the UK should not set new UK emissions targets now, as it already has stretching targets and achieving them will be a positive contribution to global climate action.
+Furthermore, the CCC acknowledged in the context of separate legal action brought by Plan B against the Secretary of State for Business, Energy and Industrial Strategy that it is possible that the existing 2050 target could be consistent with the temperature stabilization goals set out in the Paris Agreement.
+Subsequently, in establishing its carbon obligations for the purpose of assessing the impact of airport expansion, my team has followed this advice and considered existing domestic legal obligations as the correct basis for assessing the carbon impact of the project, and that it is not appropriate at this stage for the government to consider any other possible targets that could arise through the Paris Agreement.
+Her account was corroborated by Ms Ursula Stevenson, an engineering and project management consultant whom the Secretary of State retained to deal with the process for consideration of the environmental impacts of the NWR Scheme.
+She stated (witness statement para 3.128) that the Department had followed the CCCs advice when preparing the AoS required by the PA 2008 (see para 28 above) and accordingly had considered existing domestic legal obligations to be the correct basis for assessing the carbon impact of the project.
+She added: At this stage, it is not possible to consider what any future targets [sic] might be recommended by the CCC to meet the ambitions of the Paris Agreement.
+It is expected that, should more ambitious targets be recommended and set through the carbon budgets beyond 2032, then government will be required to make appropriate policy decisions across all sectors of the economy to limit emissions accordingly.
+She emphasised (para 3.129) that the obligations under the CCA 2008 could be made more stringent in future, should that prove necessary, and that the ANPS provided that any application for a DCO would have to be assessed by reference to whatever obligations were in place at that time.
+The IPCC Special Report on Global Warming of 1.5C was published on 8 October 2018.
+It concluded that limiting global warming to that level above pre industrial levels would significantly reduce the risks of challenging impacts on ecosystems and human health and wellbeing and that it would require deep emissions reductions and rapid, far reaching and unprecedented changes to all aspects of society.
+To achieve that target global net emissions of CO would need to fall by about 45% from 2010 levels by 2030, reaching zero by 2050.
+The Government commissioned the CCC to advise on options by which the UK should achieve (i) a net zero greenhouse gas target and/or (ii) a net zero carbon target in order to contribute to the global ambitions set out in the Paris Agreement, including whether now was the right time to set such a target.
+In December 2018 the Department for Transport published consultation materials on its forthcoming Aviation Strategy.
+In Aviation 2050: The future of UK aviation the Department stated (paras 3.83 3.87) that it proposed to negotiate in the International Civil Aviation Organisation (the UN body responsible for tackling international aviation climate emissions) for a long term goal for international aviation that is consistent with the temperature goals of the Paris Agreement and that it would consider appropriate domestic action to support international progress.
+It stated that the Government would review the CCCs revised aviation advice and advice on the implications of the Paris Agreement.
+In the same month, in a paper commissioned and published by the Department and written by David S Lee, International aviation and the Paris Agreement temperature goals the author acknowledged that the Paris Agreement had a temperature based target which implied the inclusion of all emissions that affect the climate.
+The author stated that aviation had significant climate impacts from the oxides of nitrogen, particle emissions, and effects on cloudiness but that those impacts were subject to greater scientific uncertainty than the impacts of CO.
+It recorded that examples of CO emission equivalent metrics indicated up to a doubling of aviation CO equivalent emissions to account for those non CO effects.
+On 1 May 2019 Parliament approved a motion to declare a climate and environmental emergency.
+On the following day, the CCC published a report entitled Net zero: The UKs contribution to stopping global warming, in which they recommended that legislation should be passed as soon as possible to create a new statutory target of net zero greenhouse gases by 2050 and the inclusion of international aviation and shipping in that target (p 15).
+That recommendation, so far as it related to the CO target, was implemented on 26 June 2019 when the Climate Change Act (2050 Target Amendment) Order 2019 amended section 1(1) of the CCA 2008.
+On 24 September 2019 the CCC wrote to the Secretary of State for Transport advising that the international aviation and shipping emissions should be brought formally within the UKs net zero statutory 2050 target.
+The statutory target has not yet been changed to this effect but international aviation and shipping are taken into account when the carbon budgets are set against the statutory target: section 10(2)(i) of the CCA 2008.
+On 25 June 2020 the CCC published its 2020 Progress Report to Parliament entitled Reducing UK emissions, in which it recommended that international aviation and shipping be included in the UK climate targets when the Sixth Carbon Budget is set (which should be in 2021) and net zero plans should be developed (p 22).
+It recommended that the UKs airport capacity strategy be reviewed in the light of COVID 19 and the net zero target and that action was needed on non CO effects from aviation (p 180).
+The parties to this appeal have stated in the agreed Statement of Facts and Issues that it was expected that the Governments Aviation Strategy will be published before the end of 2020.
+From this narrative of events it is clear that the Governments response to the targets set in the Paris Agreement has been developing over time since 2016, that it has led to the amendment of the statutory CO target in section 1(1) of the CCA 2008 approximately one year after the Secretary of State designated the ANPS, and that the Government is still in the process of developing its Aviation Strategy in response to the advice of the CCC.
+Before turning to the legal challenges in this appeal it is also important to emphasise that, as we have stated in para 10 above, HAL, FoE and Plan B Earth agree that should the NWR Scheme be taken forward to a DCO application, the ANPS would not allow it to be assessed by reference to the carbon reduction targets, including carbon budgets, that were in place when the ANPS was designated in June 2018.
+The ANPS requires that the scheme be assessed against the carbon reduction targets in place at the time when a DCO application is determined: para 5.82 of the ANPS which we have set out in para 87 above.
+There is therefore no question of the NWR Scheme being assessed in future against outdated emissions targets.
+The judgments of the Divisional Court and the Court of Appeal
+A number of objectors to the NWR Scheme and the ANPS brought a large number of disparate claims in these proceedings to challenge the ANPS.
+The Divisional Court heard the claims on a rolled up basis, that is to say by considering the question of whether to grant permission to apply for judicial review at the same time as considering the merits of the claims should permission be granted.
+The hearing lasted for seven days and involved a full merits consideration of all the claims by the Divisional Court.
+In a judgment of high quality, described by the Court of Appeal as a tour de force, the Divisional Court dismissed all of the claims.
+For some claims it granted permission to apply for judicial review and then dismissed them on the merits.
+For others, it decided that they were not reasonably arguable on the merits and refused to grant permission.
+After thorough examination, the Divisional Court reached the conclusion that none of the claims which form the subject of grounds (i) to (iv) in the present appeal were reasonably arguable, and accordingly refused permission to apply for judicial review in relation to each of them.
+In relation to those claims, the Court of Appeal decided that they were both arguable and that they were made out as good claims.
+Accordingly, the Court of Appeal granted permission in relation to them for the respondents to apply for judicial review of the decision to designate the ANPS and then held that the ANPS was of no legal effect unless and until a review was carried out rectifying the legal errors.
+Analysis
+Ground (i) the section 5(8) ground
+This ground raises a question of statutory interpretation.
+Section 5(7) and (8) of the PA 2008, which we set out in para 25 above, provide that an NPS must give reasons for the policy set out in the statement and that the reasons must explain how the policy in the NPS takes account of Government policy relating to the mitigation of, and adaptation to, climate change.
+Mr Crosland for Plan B Earth presented this argument.
+Mr Wolfe QC for FoE adopted his submissions.
+Mr Crosland submits that it was unlawful for the Secretary of State when stating the reasons for the policy in the ANPS in June 2018 to have treated as irrelevant the Governments commitment to (a) the temperature target in the Paris Agreement and (b) the introduction of a new net zero carbon target.
+The Governments commitment to the Paris Agreement targets constituted Government policy within the meaning of section 5(8) of the PA 2008 and so should have been addressed in giving the reasons for the ANPS.
+Plan B Earth advanced this argument before the Divisional Court, which rejected the submission.
+The Divisional Court held that the Paris Agreement did not impose an obligation on any individual state to implement its global objective in any particular way, Parliament had determined the contribution of the UK towards global targets in section 1 of the CCA 2008 as a national carbon cap which represented the relevant policy in an entrenched form, and the Secretary of State could not change that carbon target unless and until the conditions set out in that Act were met.
+The Court of Appeal disagreed with the approach of the Divisional Court and held that Government policy in section 5(8) was not confined to the target set out in the CCA 2008.
+The words Government policy were words of the ordinary English language.
+Taking into account the consequences of the Paris Agreement involved no inconsistency with the provisions of the CCA 2008.
+Based on the Secretary of States written pleadings the Court of Appeal concluded that the Secretary of State had received and accepted legal advice that he was legally obliged not to take into account the Paris Agreement and the court characterised that as a misdirection of law.
+We address that conclusion in the next section of this judgment at paras 124 129 below.
+The court held that section 5(8) of the PA 2008 simply required the Government to take into account its own policy.
+The statements of Andrea Leadsom MP and Amber Rudd MP in March 2016 (para 72 above) and the formal ratification of the Paris Agreement showed that the Governments commitment to the Paris Agreement was part of Government policy by the time of the designation of the ANPS in June 2018.
+The principal question for determination is the meaning of Government policy in section 5(8) of the PA 2008.
+We adopt a purposive approach to this statutory provision which expands upon the obligation in section 5(7) that an NPS give reasons for the policy set out in it and interpret the statutory words in their context.
+The purpose of the provision is to make sure that there is a degree of coherence between the policy set out in the NPS and established Government policies relating to the mitigation of and adaptation to climate change.
+The section speaks of Government policy, which points toward a policy which has been cleared by the relevant departments on a government wide basis.
+In our view the phrase is looking to carefully formulated written statements of policy such as one might find in an NPS, or in statements of national planning policy (such as the National Planning Policy Framework), or in government papers such as the Aviation Policy Framework.
+For the subsection to operate sensibly the phrase needs to be given a relatively narrow meaning so that the relevant policies can readily be identified.
+Otherwise, civil servants would have to trawl through Hansard and press statements to see if anything had been said by a minister which might be characterised as policy.
+Parliament cannot have intended to create a bear trap for ministers by requiring them to take into account any ministerial statement which could as a matter of ordinary language be described as a statement of policy relating to the relevant field.
+In our view, the epitome of Government policy is a formal written statement of established policy.
+In so far as the phrase might in some exceptional circumstances extend beyond such written statements, it is appropriate that there be clear limits on what statements count as Government policy, in order to render them readily identifiable as such.
+In our view the criteria for a policy to which the doctrine of legitimate expectations could be applied would be the absolute minimum required to be satisfied for a statement to constitute policy for the purposes of section 5(8).
+Those criteria are that a statement qualifies as policy only if it is clear, unambiguous and devoid of relevant qualification: see for example Inland Revenue Comrs v MFK Underwriting Agents Ltd [1990] 1 WLR 1545, 1569 per Bingham LJ; R (Gaines Cooper) v Comrs for Her Majestys Revenue and Customs [2011] UKSC 47; [2011] 1 WLR 2625, paras 28 and 29 per Lord Wilson of Culworth, delivering the judgment with which the majority of the court agreed, and para 70 per Lord Mance.
+The statements of Andrea Leadsom MP and Amber Rudd MP (para 72 above) on which the Court of Appeal focused and on which Plan B Earth particularly relied do not satisfy those criteria.
+Their statements were not clear and were not devoid of relevant qualification in this context.
+They did not refer to the temperature targets at all and they both left open the question of how the Paris Agreement goal of net zero emissions would be enshrined in UK law.
+Andrea Leadsom went out of her way to emphasise that there is an important set of questions to be answered before we do.
+The statements made by these ministers were wholly consistent with and plainly reflected the fact that there was then an inchoate or developing policy being worked on within Government.
+This does not fall within the statutory phrase.
+We therefore respectfully disagree with the Court of Appeal in so far as they held (para 224) that the words Government policy were ordinary words which should be applied in their ordinary sense to the facts of a given situation.
+We also disagree with the courts conclusion (para 228) that the statements by Andrea Leadsom MP and Amber Rudd MP constituted statements of Government policy for the purposes of section 5(8).
+Although the point had been a matter of contention in the courts below, no party sought to argue before this court that a ratified international treaty which had not been implemented in domestic law fell within the statutory phrase Government policy.
+Plan B Earth and FoE did not seek to support the conclusion of the Court of Appeal (para 228) that it followed from the solemn act of the United Kingdoms ratification of [the Paris Agreement] that the Governments commitment to it was part of Government policy.
+The fact that the United Kingdom had ratified the Paris Agreement is not of itself a statement of Government policy in the requisite sense.
+Ratification is an act on the international plane.
+It gives rise to obligations of the United Kingdom in international law which continue whether or not a particular government remains in office and which, as treaty obligations, are not part of UK law and give rise to no legal rights or obligations in domestic law (R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5; [2018] AC 61, para 55).
+Ratification does not constitute a commitment operating on the plane of domestic law to perform obligations under the treaty.
+Moreover, it cannot be regarded in itself as a statement devoid of relevant qualification for the purposes of domestic law, since if treaty obligations are to be given effect in domestic law that will require law making steps which are uncertain and unspecified at the time of ratification.
+Before applying these conclusions to the facts of this case, it is necessary to consider another argument which HAL advances in this appeal.
+HAL renews an argument which the Divisional Court had accepted at least in part.
+HAL argues that because Parliament had set out the target for the reduction of carbon emissions in section 1 of the CCA 2008 and had established a statutory mechanism by which the target could be altered only with the assent of Parliament, Government policy was entrenched in section 1 and could not be altered except by use of the subordinate legislation procedure in sections 2 and 3 of the CCA 2008.
+The statutory scheme had either expressly or by necessary implication displaced the prerogative power of the Government to adopt any different policy in this field.
+In support of this contention HAL refers to the famous cases of Attorney General v De Keysers Royal Hotel Ltd [1920] AC 508 and R v Secretary of State for the Home Department, Ex p Fire Brigades Union [1995] 2 AC 513, to which this court referred in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5; [2018] AC 61.
+The short answer to that submission is that it is possible for the Government to have a policy that it will seek Parliamentary approval of an alteration of the carbon target, which is to be taken into account in section 5(8) of the PA 2008.
+The ousting of a prerogative power in a field which has become occupied by a corresponding power conferred or regulated by statute is a legal rule which is concerned with the validity of the exercise of a power, and to the extent that exercise of powers might require reference to the target set out in section 1 of the CCA 2008 it would not be open to the Government to make reference to a different target, not as yet endorsed by Parliament under the positive resolution procedure applicable to changes to that statutory target.
+However, the rule does not address what is Government policy for the purposes of section 5(8) of the PA 2008.
+If at the date when the Secretary of State designated the ANPS, the Government had adopted and articulated a policy that it would seek to introduce a specified new carbon target into section 1 of the CCA 2008 by presenting draft subordinate legislation to that effect for the approval of Parliament, the Secretary of State could readily record in the ANPS that the Government had resolved to seek that change but that it required the consent of Parliament for the new target to have legal effect.
+Further, questions such as how to mitigate non CO emissions fell outside the carbon emissions target in the CCA 2008.
+Turning to the facts of the case, it is clear from the narrative of events in paras 70 96 above that in June 2018, when the Secretary of State for Transport designated the ANPS, the Governments approach on how to adapt its domestic policies to contribute to the global goals of the Paris Agreement was still in a process of development.
+There was no established policy beyond that already encapsulated in the CCA 2008.
+The Government followed the advice of the CCC.
+The CCCs advice in 2016 was that the evidence was not sufficient to specify a new carbon target and that it was not necessary to do so at that time (paras 73 74 above).
+In early 2018 the CCC invited the Government to seek further advice from it after the publication of the IPCCs report (para 79 above).
+During 2018 the Governments policy in relation to aviation emissions was in a process of development and no established policy had emerged on either the steps to be taken at international level or about which domestic measures would be adopted; it was expected that the forthcoming Aviation Strategy would clarify those matters (paras 83 and 86 above).
+The Governments consultation in December 2018 confirmed that the development of aviation related targets was continuing and in 2020 the Governments Aviation Strategy is still awaited (paras 92 and 96 above).
+Against this background, the section 5(8) challenge fails and HALs appeal on this ground must succeed.
+It is conceded that the Paris Agreement itself is not Government policy.
+The statements by Andrea Leadsom MP and Amber Rudd MP in 2016, on which Plan B Earth principally founds, do not amount to Government policy for the purpose of section 5(8) of the PA 2008.
+The statements concerning the development of policy which the Government made in 2018 were statements concerning an inchoate and developing policy and not an established policy to which section 5(8) refers.
+Mr Crosland placed great emphasis on the facts (i) that the Airports Commission had assessed the rival schemes against scenarios, one of which was that overall CO emissions were set at a cap consistent with a worldwide goal to limit global warming to 2C, and (ii) that that scenario was an input into Secretary of States assessment of the ANPS at a time when the UK Government had ratified the Paris Agreement and ministers had made the statements to which we referred above.
+But those facts are irrelevant to the section 5(8) challenge.
+It is not in dispute that the internationally agreed temperature targets played a formative role in the development of government policy.
+But that is not enough for Plan B Earth to succeed in this challenge.
+What Mr Crosland characterised as a policy commitment to the Paris Agreement target did not amount to Government policy under that subsection.
+Finally, Mr Crosland sought to raise an argument under section 3 of the Human Rights Act 1998 that interpreting section 5(8) so as to preclude consideration of the temperature limit in the Paris Agreement would tend to allow major national projects to be developed and that those projects would create an intolerable risk to life and to peoples homes contrary to articles 2 and 8 of the European Convention on Human Rights (ECHR).
+This argument must fail for two reasons.
+First, as Lord Anderson for HAL submits, the argument was advanced as a separate ground before the Divisional Court and rejected, that finding was not appealed to the Court of Appeal, and is therefore not before this court.
+Secondly, even if it were to be treated as an aspect of Plan B Earths section 5(8) submission and thus within the scope of the appeal (as Mr Crosland sought to argue), it is in any event unsound because any effect on the lives and family life of those affected by the climate change consequences of the NWR Scheme would result not from the designation of the ANPS but from the making of a DCO in relation to the scheme.
+As HAL has conceded and the respondents have agreed, the ANPS requires the NWR Scheme to be assessed against the emissions targets which would be current if and when an application for a DCO were determined.
+Ground (ii): the section 10 ground
+Mr Wolfe for FoE presented the submissions for the respondents on this ground and grounds (iii) and (iv).
+Mr Crosland for Plan B Earth adopted those submissions.
+Section 10 of the PA 2008 applies to the Secretary of States function in promulgating an NPS.
+In exercising that function the Secretary of State must act with the objective of contributing to the achievement of sustainable development.
+Sustainable development is a recognised term in the planning context and its meaning is not controversial in these proceedings.
+As explained in paras 7 and 8 of the National Planning Policy Framework (July 2018), at a very high level the objective of sustainable development involves meeting the needs of the present without compromising the ability of future generations to meet their own needs; it has three overarching elements, namely an environmental objective, an economic objective and a social objective.
+For a major infrastructure project like the development of airport capacity in the South East, which promotes economic development but at the cost of increased greenhouse gases emissions, these elements have to be taken into account and balanced against each other.
+Section 10(3)(a) provides that the Secretary of State must, in particular, have regard to the desirability of mitigating, and adapting to, climate change.
+Unlike in section 5(8) of the PA 2008, this is not a factor which is tied to Government policy.
+As it transpired, very little divided the parties under this ground.
+The basic legal approach is agreed.
+A useful summation of the law was given by Simon Brown LJ in R v Somerset County Council, Ex p Fewings [1995] 1 WLR 1037, 1049, in which he identified three categories of consideration, as follows: [T]he judge speaks of a decision maker who fails to take account of all and only those considerations material to his task.
+It is important to bear in mind, however, that there are in fact three categories of consideration.
+First, those clearly (whether expressly or impliedly) identified by the statute as considerations to which regard must be had.
+Second, those clearly identified by the statute as considerations to which regard must not be had.
+Third, those to which the decision maker may have regard if in his judgment and discretion he thinks it right to do so.
+There is, in short, a margin of appreciation within which the decision maker may decide just what considerations should play a part in his reasoning process.
+The three categories of consideration were identified by Cooke J in the New Zealand Court of Appeal in CREEDNZ Inc v Governor General [1981] NZLR 172, 183: What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the [relevant public authority] as a matter of legal obligation that the court holds a decision invalid on the ground now invoked.
+It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the court itself, would have taken into account if they had to make the decision.
+Cooke J further explained at p 183 in relation to the third category of consideration that, notwithstanding the silence of the statute, there will be some matters so obviously material to a decision on a particular project that anything short of direct consideration of them by [the public authority] would not be in accordance with the intention of the Act.
+These passages were approved as a correct statement of principle by the House of Lords in In re Findlay [1985] AC 318, 333 334.
+See also R (Hurst) v London Northern District Coroner [2007] UKHL 13; [2007] 2 AC 189, paras 55 59 (Lord Brown of Eaton under Heywood, with whom a majority of the Appellate Committee agreed); R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60; [2009] 1 AC 756, para 40 (Lord Bingham of Cornhill, with whom a majority of the Appellate Committee agreed); and R (Samuel Smith Old Brewery (Tadcaster)) v North Yorkshire County Council [2020] UKSC 3; [2020] PTSR 221, paras 29 32 (Lord Carnwath, with whom the other members of the court agreed).
+In the Hurst case, Lord Brown pointed out that it is usually lawful for a decision maker to have regard to unincorporated treaty obligations in the exercise of a discretion (para 55), but that it is not unlawful to omit to do so (para 56).
+As the Court of Appeal correctly held in Baroness Cumberlege of Newick v Secretary of State for Communities and Local Government [2018] EWCA Civ 1305; [2018] PTSR 2063, paras 20 26, in line with these other authorities, the test whether a consideration falling within the third category is so obviously material that it must be taken into account is the familiar Wednesbury irrationality test (Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223; Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410 411 per Lord Diplock).
+It is possible to subdivide the third category of consideration into two types of case.
+First, a decision maker may not advert at all to a particular consideration falling within that category.
+In such a case, unless the consideration is obviously material according to the Wednesbury irrationality test, the decision is not affected by any unlawfulness.
+Lord Bingham deals with such a case in Corner House Research at para 40.
+There is no obligation on a decision maker to work through every consideration which might conceivably be regarded as potentially relevant to the decision they have to take and positively decide to discount it in the exercise of their discretion.
+Secondly, a decision maker may in fact turn their mind to a particular consideration falling within the third category, but decide to give the consideration no weight.
+As we explain below, this is what happened in the present case.
+The question again is whether the decision maker acts rationally in doing so.
+Lord Brown deals with a case of this sort in Hurst (see para 59).
+This shades into a cognate principle of public law, that in normal circumstances the weight to be given to a particular consideration is a matter for the decision maker, and this includes that a decision maker might (subject to the test of rationality) lawfully decide to give a consideration no weight: see, in the planning context, Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 (HL), 780 (Lord Hoffmann).
+The Divisional Court (para 648) and the Court of Appeal (para 237) held that the Paris Agreement fell within the third category identified in Fewings.
+In so far as it is an international treaty which has not been incorporated into domestic law, this is correct.
+In fact, however, as we explain (para 71 above), the UKs obligations under the Paris Agreement are given effect in domestic law, in that the existing carbon target under section 1 of the CCA 2008 and the carbon budgets under section 4 of that Act already meet (and, indeed, go beyond) the UKs obligations under the Paris Agreement to adhere to the NDCs notified on its behalf under that Agreement.
+The duties under the CCA 2008 clearly were taken into account when the Secretary of State decided to issue the ANPS.
+At para 5.69 of the ANPS the Secretary of State stated: The Government has a number of international and domestic obligations to limit carbon emissions.
+Emissions from both the construction and operational phases of the [NWR Scheme] project will be relevant to meeting these obligations.
+This statement covered the Paris Agreement as well as other international treaties.
+At para 5.71 the ANPS correctly stated that [t]he UKs obligations on greenhouse gas emissions are set under the [CCA 2008].
+As explained above, the relevant NDCs required to be set under the Paris Agreement were covered by the target in the CCA 2008 and the carbon budgets set under that Act.
+At paras 5.72 5.73 of the ANPS it was explained how aviation emissions were taken into account in setting carbon budgets under the CCA 2008 in accordance with the advice given by the CCC.
+We have set out the evidence of Ms Low and Ms Stevenson regarding this topic (paras 88 and 89 above) which confirms that, in acting for the Secretary of State in drawing up the ANPS, they followed the advice of the CCC that the existing measures under the CCA 2008 were capable of being compatible with the 2050 target set by the Paris Agreement.
+The CCC did not recommend adjusting the UKs targets further at that stage.
+They were to be kept under review and appropriate adjustments could be made to the emissions target and carbon budgets under the CCA 2008 in future as necessary.
+According to that advice, therefore, sufficient account was taken of the Paris Agreement by ensuring that the relevant emissions target and carbon budgets under the CCA 2008 would be properly taken into account in the construction and operation of the NWR Scheme.
+The ANPS ensured that this would occur: see para 5.82 (set out at para 87 above).
+Therefore, on a correct understanding of the ANPS and the Secretary of States evidence, this is not a case in which the Secretary of State omitted to give any consideration to the Paris Agreement; nor is it one in which no weight was given to the Paris Agreement when the Secretary of State decided to issue the ANPS.
+On the contrary, the Secretary of State took the Paris Agreement into account and, to the extent that the obligations under it were already covered by the measures under the CCA 2008, he gave weight to it and ensured that those obligations would be brought into account in decisions to be taken under the framework established by the ANPS.
+On proper analysis the question is whether the Secretary of State acted irrationally in omitting to take the Paris Agreement further into account, or give it greater weight, than in fact he did.
+In its judgment, the Divisional Court recorded (para 638) that the Secretary of State accepted that, in designating the ANPS, he took into account only the CCA 2008 carbon emission targets and did not take into account either the Paris Agreement or otherwise any post 2050 target or non CO2 emissions (these latter points are relevant to ground (iv) below).
+However, this way of describing the position masks somewhat the way the Paris Agreement did in fact enter into consideration by the Secretary of State.
+In the same paragraph, the Divisional Court summarised two submissions advanced by counsel for the Secretary of State as to why the Secretary of States approach was not unlawful: (i) on its proper construction, and having regard to the express reference to the UKs international obligations in section 104(4) of the PA 2008, the PA 2008 requires the Secretary of State to ignore international commitments except where they are expressly referred to in that Act; alternatively, (ii) even if not obliged to ignore such commitments, the Secretary of State had a discretion as to whether to do so and was not obliged to take them into account.
+The Divisional Court rejected the first argument but accepted the second.
+It noted that the Secretary of State was bound by the obligations in the CCA 2008, which effectively transposed international obligations into domestic law (para 643).
+Beyond that, the Secretary of State had a discretion whether to take the Paris Agreement further into account, and had not (even arguably) acted irrationally in deciding not to do so.
+It therefore refused to give permission for judicial review of the ANPS on this ground.
+The Court said (para 648): In our view, given the statutory scheme in the CCA 2008 and the work that was being done on if and how to amend the domestic law to take into account the Paris Agreement, the Secretary of State did not arguably act unlawfully in not taking into account that Agreement when preferring the NWR Scheme and in designating the ANPS as he did.
+As we have described, if scientific circumstances change, it is open to him to review the ANPS; and, in any event, at the DCO stage this issue will be re visited on the basis of the then up to date scientific position.
+Mr Wolfe sought to support the judgment of the Court of Appeal in relation to this ground.
+He argued that the evidence for the Secretary of State had to be read in the light of the first submission made by his counsel in the Divisional Court, and that the true position was that the Secretary of State (acting by his officials and advisers) had been advised that he was not entitled to have regard to the Paris Agreement when deciding whether to designate the ANPS and had proceeded on that basis, with the result that he had not in fact exercised any discretion in deciding not to have further regard to the Paris Agreement.
+He also submitted that it was obvious that it was a material consideration.
+Mr Wolfe was successful in persuading the Court of Appeal on these points (paras 203 and 234 238 of its judgment).
+The Court of Appeal accepted his submissions that there was an error of law in the approach of the Secretary of State because he never asked himself the question whether he could take into account the Paris Agreement pursuant to his obligations under section 10 and [i]f he had asked himself that question the only answer that would reasonably have been open to him is that the Paris Agreement was so obviously material to the decision he had to make in deciding whether to designate the ANPS that it was irrational not to take it into account.
+With respect to the Court of Appeal, they were wrong to overturn the judgment of the Divisional Court on this ground.
+Mr Wolfes submissions conflated a submission of law (submission (i) above) made by counsel for the Secretary of State as recorded in para 638 of the judgment of the Divisional Court and the evidence of fact given by the relevant witnesses for the Secretary of State.
+In making his submission of law, counsel was not giving evidence about the factual position.
+There is a fundamental difference between submissions of law made by counsel and evidence of fact.
+Clearly, if the Secretary of State had been correct in submission (i) that would have provided an answer to the case against him whatever the position on the facts.
+This explains why counsel advanced the submission.
+But it is equally clear that if that submission failed, the Secretary of State made an alternative submission that he had a discretion whether to take the Paris Agreement further into account than was already the case under the CCA 2008 and that there had been no error of law in the exercise of that discretion.
+That was the submission accepted by the Divisional Court.
+In our view, both the submissions of Mr Wolfe which the Court of Appeal accepted are unsustainable.
+The Divisional Courts judgment on this point is correct.
+On the evidence, the Secretary of State certainly did ask himself the question whether he should take into account the Paris Agreement beyond the extent to which it was already reflected in the obligations under the CCA 2008 and concluded in the exercise of his discretion that it would not be appropriate to do so.
+As mentioned above, this case is in the class referred to in para 121 above.
+Mr Wolfe sought to suggest that in deciding the case as it did, the Court of Appeal had acted as a first instance court (since the Divisional Court had refused to give permission for judicial review on this ground) and that it had made factual findings to contrary effect which this court was not entitled to go behind.
+He also submitted that HAL, in its notice of appeal, had not questioned the factual position as it was taken to be by the Court of Appeal and was therefore not entitled to dispute it on this appeal.
+Neither of these submissions has any merit.
+The Divisional Court considered the claims brought against the Secretary of State at a rolled up hearing lasting many days and considered each claim in full and in depth.
+In respect of all aspects of the Divisional Courts decision, both in relation to those claims on which it granted permission for judicial review but then dismissed the claim and in relation to those claims (including those relating to grounds (i) to (iv) in this appeal) on which after full consideration it decided they were unarguable and so refused to grant permission for judicial review, the Court of Appeal correctly understood that its role was the conventional role of an appellate court, to examine whether the Divisional Court had erred in its decision.
+In any event, this court can read the undisputed evidence of Ms Low and Ms Stevenson for itself and has the benefit of an agreed Statement of Facts and Issues which makes it clear what the true factual position was.
+The Court of Appeal was wrong to proceed on the basis of a different assessment of the facts.
+On a fair reading of HALs notice of appeal, it indicated that its case under this ground was to be that the Secretary of State had a discretion whether to have regard to the Paris Agreement, which discretion had been exercised lawfully.
+In any event, that was put beyond doubt by HALs written case.
+FoE and Plan B Earth have been on notice of HALs case under this ground for a long time and are in no way prejudiced by it being presented in submissions to this court.
+The view formed by the Secretary of State, that the international obligations of the UK under the Paris Agreement were sufficiently taken into account for the purposes of the designation of the ANPS by having regard to the obligations under the CCA 2008, was in our judgment plainly a rational one.
+Mr Wolfe barely argued to the contrary.
+The Secretary of States assessment was based on the advice of the CCC, as the relevant independent expert body.
+The assessment cannot be faulted.
+Further, the ANPS itself indicated at para 5.82 that the up to date carbon targets under the CCA 2008, which would reflect developing science and any change in the UKs international obligations under the Paris Agreement, would be taken into account at the stage of considering whether a DCO should be granted.
+That was a necessary step before the NWR Scheme could proceed.
+Moreover, as observed by the Divisional Court, there was scope for the Secretary of State to amend the ANPS under section 6 of the PA 2008, should that prove to be necessary if it emerged in the future that there was any inconsistency between the ANPS and the UKs obligations under the Paris Agreement.
+It should also be observed that the carbon emissions associated with all three of the principal options identified by the Airports Commission (that is, the NWR Scheme, the ENR Scheme and the G2R Scheme) were assessed to be broadly similar.
+Accordingly, reference to the Paris Agreement does not provide any basis for preferring one scheme rather than another.
+To the extent the obligations under the Paris Agreement have a bearing on the decision to designate the ANPS, therefore, they are only significant if it is to be argued that there should not be any decision to meet economic needs by increasing airport capacity by one of these schemes.
+But in light of the extensive work done by the Airports Commission about the need for such an increase in capacity it could not be said that the Secretary of State acted irrationally in considering that the case for airport expansion had been sufficiently made out to allow the designation of the ANPS.
+The respondents did not seek to argue that this aspect of his reasoning was irrational.
+As we have noted above, the concept of sustainability in section 10 of the PA 2008 includes consideration of economic and social factors as well as environmental ones.
+In light of the factual position, it is not necessary to decide the different question whether, if the Secretary of State had omitted to think about the Paris Agreement at all (so that this was a case of the type described in para 120 above), as an unincorporated treaty, that would have constituted an error of law.
+That is not a straightforward issue and we have not heard submissions on the point.
+We say no more about it.
+Ground (iii): the SEA Directive ground
+The SEA Directive operates along with the EIA Directive to ensure that environmental impacts from proposals for major development are properly taken into account before a development takes place.
+The relationship between the Directives was explained by Lord Reed in Walton v Scottish Ministers [2012] UKSC 44; [2013] PTSR 51, paras 10 30.
+The SEA Directive applies upstream, at the stage of preparation of strategic development plans or proposals.
+The EIA Directive requires assessment of environmental impacts downstream, at the stage when consent for a particular development project is sought.
+Although the two Directives are engaged at different points in the planning process for large infrastructure projects such as the NWR Scheme, they have similar objects and have to deal with similar issues of principle, including in particular the way in which regard should be had to expert assessment of various factors bearing on that process.
+These points indicate that a similar approach should apply under the two Directives.
+The SEA Directive is implemented in domestic law by the SEA Regulations.
+It is common ground that the SEA Regulations are effective in transposing the Directive into domestic law.
+Accordingly, it is appropriate to focus the discussion of this ground on the SEA Directive itself.
+The structure of the SEA Directive appears from its provisions, set out and discussed above.
+The Directive requires that an environmental assessment of major plans and proposals should be carried out.
+The ANPS is such a plan, which will have a significant effect in setting the policy framework for later consideration of whether to grant a DCO for implementing the NWR Scheme.
+Therefore the proposal to designate it under section 5 of the PA 2008 required an environmental assessment as defined in article 2(b).
+The environmental assessment had to include the preparation of an environmental report and the carrying out of consultations.
+An environmental report for the purposes of the Directive is directed to providing a basis for informed public consultation on the plan.
+The decision making framework under the SEA Directive is similar to that under the EIA Directive for environmental assessment of particular projects.
+Under the EIA Directive, an applicant for planning consent for particular projects has to produce an environmental statement which, among other things, serves as a basis for consultation with the public.
+Under the SEA Directive, the public authority which proposes the adoption of a strategic plan has to produce an environmental report for the same purpose.
+In due course, any application by HAL for a DCO will have to go through the process of environmental assessment pursuant to the EIA Directive and the EIA Regulations.
+FoE and Plan B Earth complain that the environmental report which the Secretary of State was required under the SEA Directive to prepare and publish was defective, in that it did not make reference to the Paris Agreement.
+Mr Wolfe pointed out that the Secretary of State did not include the Paris Agreement in the long list of legal instruments and other treaties appended to the scoping report produced in March 2016 (ie after the Paris Agreement was adopted in December 2015 but before it was signed by the UK in April 2016 and ratified by it in November 2016) for the purposes of preparing the draft AoS which was to stand as the Secretary of States environmental report for the purposes of the SEA Directive for the consultation on the draft ANPS.
+No reference to the Paris Agreement was included in the AoS used for the February 2017 consultation on the draft ANPS, nor in that used for the October 2017 consultation on the draft ANPS.
+Against this, HAL points out that the carbon target in the CCA 2008 and the carbon budgets set under that Act were referred to in the AoS, as well as in the draft ANPS itself, so to that extent the UKs obligations under the Paris Agreement were covered in the environmental report.
+Beyond that, the evidence of Ms Stevenson (who led the team who prepared the AoS on behalf of the Secretary of State) makes it clear that the Secretary of State followed the advice of the CCC in deciding that it was not necessary and would not be appropriate to make further reference to the Paris Agreement in the AoS. The existing domestic legal obligations were considered to be the correct basis for assessing the carbon impact of the project, and it would be speculative and unhelpful to guess at what different targets might be recommended by the CCC in the future.
+Therefore, despite its omission from the scoping report, when the AoS actually came to be drafted the Paris Agreement (which had been ratified by the UK after the scoping report was issued) had been considered and the Secretary of State, acting by Ms Stevenson and her team, had decided in the exercise of his discretion not to make distinct reference to it.
+As regards the law, the parties are in agreement.
+Any obligation to make further reference to the Paris Agreement in the environmental report depended on the application of three provisions of the SEA Directive.
+Under paragraph (e) of Annex I, the AoS had to provide information in the form of the environmental protection objectives, established at international, Community or member state level, which are relevant to the plan or programme and the way those objectives and any environmental considerations have been taken into account during its preparation.
+But, as stated in the introduction to Annex I, this was subject to article 5(2) and (3) of the Directive, set out at para 58 above.
+It is common ground that the effect of article 5(2) and (3) is to confer on the Secretary of State a discretion regarding the information to include in an environmental report.
+It is also common ground that the approach to be followed in deciding whether the Secretary of State has exercised his discretion unlawfully for the purposes of that provision is that established in relation to the adequacy of an environmental statement when applying the EIA Directive, as set out by Sullivan J in R (Blewett) v Derbyshire County Council [2003] EWHC 2775 (Admin); [2004] Env LR 29 (Blewett).
+Blewett has been consistently followed in relation to judicial review of the adequacy of environmental statements produced for the purposes of environmental assessment under the EIA Directive and endorsed at the highest level.
+In Shadwell Estates Ltd v Breckland District Council [2013] EWHC 12 (Admin) Beatson J held that the Blewett approach was also applicable in relation to the adequacy of an environmental report under the SEA Directive.
+The Divisional Court and the Court of Appeal in the present case endorsed this view (at paras 401 435 and paras 126 144 of their respective judgments).
+The respondents have not challenged this and we see no reason to question the conclusion of the courts below on this issue.
+As Sullivan J held in Blewett (paras 32 33), where a public authority has the function of deciding whether to grant planning permission for a project calling for an environmental impact assessment under the EIA Directive and the EIA Regulations, it is for that authority to decide whether the information contained in the document presented as an environmental statement is sufficient to meet the requirements of the Directive, and its decision is subject to review on normal Wednesbury principles.
+Sullivan J observed (para 39) that the process of requiring that the environmental statement is publicised and of public consultation gives those persons who consider that the environmental statement is inaccurate or inadequate or incomplete an opportunity to point out its deficiencies.
+The EIA Directive and Regulations do not impose a standard of perfection in relation to the contents of an environmental statement in order for it to fulfil its function in accordance with the Directive and the Regulations that it should provide an adequate basis for public consultation.
+At para 41 Sullivan J warned against adoption of an unduly legalistic approach in relation to assessment of the adequacy of an environmental statement and said: The [EIA] Regulations should be interpreted as a whole and in a common sense way.
+The requirement that an [environmental impact assessment] application (as defined in the Regulations) must be accompanied by an environmental statement is not intended to obstruct such development.
+As Lord Hoffmann said in R v North Yorkshire County Council, Ex p Brown [2000] 1 AC 397, at p 404, the purpose is to ensure that planning decisions which may affect the environment are made on the basis of full information.
+In an imperfect world it is an unrealistic counsel of perfection to expect that an applicants environmental statement will always contain the full information about the environmental impact of a project.
+The Regulations are not based upon such an unrealistic expectation.
+They recognise that an environmental statement may well be deficient, and make provision through the publicity and consultation processes for any deficiencies to be identified so that the resulting environmental information provides the local planning authority with as full a picture as possible.
+There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations , but they are likely to be few and far between.
+Lord Hoffmann (with whom the other members the Appellate Committee agreed on this issue) approved this statement in R (Edwards) v Environment Agency [2008] UKHL 22; [2008] 1 WLR 1587, para 38.
+As the Divisional Court and the Court of Appeal held in the present case, the discretion of the relevant decision maker under article 5(2) and (3) of the SEA Directive as to whether the information included in an environmental report is adequate and appropriate for the purposes of providing a sound and sufficient basis for public consultation leading to a final environmental assessment is likewise subject to the conventional Wednesbury standard of review.
+We agree with the Court of Appeal when it said (para 136): The courts role in ensuring that an authority here the Secretary of State has complied with the requirements of article 5 and Annex I when preparing an environmental report, must reflect the breadth of the discretion given to it to decide what information may reasonably be required when taking into account the considerations referred to first, current knowledge and methods of assessment; second, the contents and level of detail in the plan or programme; third, its stage in the decision making process; and fourth the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment.
+These requirements leave the authority with a wide range of autonomous judgment on the adequacy of the information provided.
+It is not for the court to fix this range of judgment more tightly than is necessary.
+The authority must be free to form a reasonable view of its own on the nature and amount of information required, with the specified considerations in mind.
+This, in our view, indicates a conventional Wednesbury standard of review as adopted, for example, in Blewett.
+A standard more intense than that would risk the court being invited, in effect, to substitute its own view on the nature and amount of information included in environmental reports for that of the decision maker itself.
+This would exceed the proper remit of the court.
+The EIA Directive and the SEA Directive are, of course, EU legislative instruments and their application is governed by EU law.
+However, as the Court of Appeal observed (paras 134 135), the type of complex assessment required in compiling an environmental report for the purposes of environmental assessment is an area where domestic public law principles have the same effect as the parallel requirements of EU law.
+As Advocate General Lger stated in his opinion in Upjohn Ltd v Licensing Authority Established Under Medicines Act 1968 (Case C 120/97) [1999] 1 WLR 927, para 50, [the] court has always taken the view that when an authority is required, in the exercise of its functions, to undertake complex assessments, a limited judicial review of the action which that authority alone is entitled to perform must be exercised, since otherwise that authoritys freedom of action would be definitively paralysed .
+The appropriateness of this approach is reinforced in the present context, having regard to the function which an environmental report is supposed to fulfil under the scheme of the SEA Directive.
+It is intended that such a report should inform the public by providing an appropriate and comprehensible explanation of the relevant policy context for a proposed strategic plan or project to enable them to provide comments thereon, and in particular to suggest reasonable alternatives by which the public need for development in accordance with the proposed plan or project could be met.
+As article 6(2) states, the public is to have an early and effective opportunity to express their opinion on a proposed plan or programme.
+It is implicit in this objective that the public authority responsible for promulgating an environmental report should have a significant editorial discretion in compiling the report to ensure that it is properly focused on the key environmental and other factors which might have a bearing on the proposed plan or project.
+Absent such a discretion, there would be a risk that public authorities would adopt an excessively defensive approach to drafting environmental reports, leading to the reports being excessively burdened with irrelevant or unfocused information which would undermine their utility in informing the general public in such a way that the public is able to understand the key issues and comment on them.
+In the sort of complex environmental report required in relation to a major project like the NWR Scheme, there is a real danger that defensive drafting by the Secretary of State to include reference to a wide range of considerations which he did not consider to be helpful or appropriate in the context of the decision to be taken would mean that the public would be drowned in unhelpful detail and would lose sight of the wood for the trees, and their ability to comment effectively during the consultation phase would be undermined.
+The appositeness of Sullivan Js analysis in Blewett at para 41, quoted above, has been borne out in this case.
+The draft ANPS issued with the AoS for the purposes of consultation included the statement that it was compatible with the UKs international obligations in relation to climate change.
+Concerns about the impact of the expansion of Heathrow on the UKs ability to meet its climate change commitments were raised in representations made during the consultation.
+In the Governments response to the consultation published on 5 June 2018 these representations were noted and the Governments position in relation to them was explained (paras 8.18 8.19 and 8.25).
+The Governments view was that the NWR Scheme was capable of being compatible with the UKs international obligations and that there was no good reason to hold up the designation of the ANPS until future policy in relation to aviation carbon emissions, which was in a state of development internationally and domestically, was completely fixed.
+Accordingly, it is clear that the public was able to comment on the Paris Agreement in the course of the consultation and that their comments were taken into account in the environmental assessment required by the SEA Directive.
+It again appears from this material that the Secretary of State did have regard to the Paris Agreement when deciding to designate the ANPS.
+As we have said, Mr Wolfe did not challenge the legal framework set out above.
+In particular, he did not challenge the appropriateness of applying the Wednesbury standard in relation to the exercise of discretion under article 5(2) and (3).
+Instead, in line with his submission under ground (ii) above, his submission was that the Secretary of State had decided that the Paris Agreement was not a relevant statement of international policy falling within Annex I, paragraph (e), because he had been advised that it was legally irrelevant to the decision he had to take as to whether to designate the ANPS.
+Thus, according to Mr Wolfe, the Secretary of State had never reached the stage of exercising his discretion whether to include a distinct reference to the Paris Agreement in the AoS. The Secretary of States decision that the Paris Agreement was irrelevant as a matter of law was wrong, and therefore the Secretary of State had erred in law because he simply did not turn his mind to whether reference to it should be included in the environmental report (the AoS).
+This was the argument which the Court of Appeal accepted at paras 242 to 247.
+The Court of Appeals reasoning on this point was very short because, as it pointed out, it followed its reasoning in relation to the respondents submissions in relation to section 10 of the PA 2008 (ground (ii) above).
+In our view, as with the ground (ii) above, Mr Wolfes submission and the reasoning of the Court of Appeal cannot be sustained in light of the relevant evidence on the facts.
+As we have explained, the Secretary of State did not treat the Paris Agreement as legally irrelevant and on that basis refuse to consider whether reference should be made to it.
+On the contrary, as Ms Stevenson explains in her evidence, in compiling the AoS as the environmental statement required under the SEA Directive the Secretary of State decided to follow the advice of the CCC to the effect that the UKs obligations under the Paris Agreement were sufficiently taken into account in the UKs domestic obligations under the CCA 2008, which were referred to in the ANPS and the AoS. Further reference to the Paris Agreement was not required.
+As we have already held above, this was an assessment which was plainly rational and lawful.
+Therefore, we would uphold this ground of appeal as well.
+Having regard to the evidence regarding the factual position, the Divisional Court was right to reject this complaint by the respondents (paras 650 656).
+The Secretary of State did not act in breach of any of his obligations under the SEA Directive in drafting the AoS as the relevant environmental report in respect of the ANPS, and in omitting to include any distinct reference in it to the Paris Agreement.
+Ground (iv) the post 2050 and non CO emissions grounds
+This ground concerns other matters which it is said that the Secretary of State failed to take into consideration in the performance of his duty under section 10(2) and (3) of the PA 2008.
+Those provisions, as we have said, obliged the Secretary of State in performing his function of designating the ANPS to do so with the objective of contributing to sustainable development and in so doing to have regard to the desirability of mitigating, and adapting to, climate change.
+FoE has argued and the Court of Appeal (paras 248 260) has accepted that the Secretary of State failed in his duty under section 10 to have regard to (i) the effect of emissions created by the NWR Scheme after 2050 and (ii) the effect of non CO emissions from that scheme.
+The Divisional Court dealt with this matter together with the matter which has become ground (ii) in this appeal, namely whether the Secretary of State failed to have regard to the Paris Agreement in breach of section 10, as issue 19 in the rolled up hearing (paras 633 648, 659(iv)) and held that that FoEs case was not arguable.
+The Court of Appeal (para 256) correctly treated this issue as closely bound up with what is now ground (ii) in this appeal.
+It is not in dispute in this appeal that in assessing whether the Secretary of State was bound to address the effect of the post 2050 emissions and the effect of the non CO emissions in the ANPS we are dealing with the third category of considerations in Simon Brown LJs categorisation in R v Somerset County Council, Ex p Fewings (para 116 above).
+The Secretary of State had a margin of appreciation in deciding what matters he should consider in performing his section 10 duty.
+It is also not in dispute that it is appropriate to apply the Wednesbury irrationality test to that decision (para 119 above).
+The task for the court therefore is one of applying that legal approach to the facts of this case.
+We address first the question of post 2050 emissions before turning to the non CO emissions. (i)
+post 2050 emissions
+FoEs argument on the relevance to the objectives of the Paris Agreement of the impacts of emissions after 2050 was straightforward.
+An assessment of the impact of the emissions from aircraft using the North West Runway by reference to a greenhouse gas target for 2050 fails to consider whether it would be sustainable for the additional aviation emissions from the use of the North West Runway to occur after 2050 given the goal of the Paris Agreement for global emissions to reach net zero in the second half of the century.
+HAL submitted that the Secretary of States approach is entirely rational.
+Lord Anderson points out, and FoE accepts, that the Airports Commission assessed the carbon emissions of each of the short listed schemes over a 60 year appraisal period up to 2085/2086 and that the same appraisal period was used in the AoS which accompanied the ANPS.
+The Secretary of State therefore did take into account the fact that there would be carbon emissions from the use of the North West Runway after 2050 and quantified those emissions.
+It was not irrational to decide not to attempt to assess post 2050 emissions by reference to future policies which had yet to be formulated.
+It was rational for him to assume that future policies in relation to the post 2050 period, including new emissions targets, could be enforced by the DCO process and mechanisms such as carbon pricing, improvements to aircraft design, operational efficiency improvements and limitation of demand growth.
+In our view, HAL is correct in its submission that the Secretary of State did not act irrationally in not attempting in the ANPS to assess post 2050 emissions against policies which had yet to be determined.
+It is clear from the AoS that the Department for Transport modelled the likely future carbon emissions of both Heathrow and Gatwick airports, covering aircraft and other sources of emissions, to 2085/2086 (paras 6.11.1 6.11.3, 6.11.13 and Table 6.4).
+As we have set out in our discussion of ground (i) above, policy in response to the global goals of the Paris Agreement was in the course of development in June 2018 when the Secretary of State designated the ANPS and remains in development.
+Further, as we have already pointed out (paras 10 and 98 above), the designation of the NWR Scheme in the ANPS did not immunise the scheme from complying with future changes of law and policy.
+The NWR Scheme would fall to be assessed against the emissions targets which were in force at the date of the determination of the application for a DCO.
+Under section 120 of the PA 2008 (para 37 above) the DCO may impose requirements corresponding to planning conditions and requirements that the approval of the Secretary of State be obtained.
+Under section 104 (para 35 above), the Secretary of State is not obliged to decide the application for the DCO in accordance with the ANPS if (i) that would lead the United Kingdom to be in breach of any of its international obligations, (ii) that would lead the Secretary of State be in breach of any duty imposed by or under any other enactment, (iii) the Secretary of State is satisfied that deciding the application in accordance with the ANPS would be unlawful by virtue of any enactment and (iv) the Secretary of State is satisfied that the adverse impact of the proposed development would outweigh its benefits.
+There are therefore provisions in place to make sure that the NWR Scheme complies with law and policy, including the Governments forthcoming Aviation Strategy, at the date when the DCO application is determined.
+There are also mechanisms available to the Government, as HAL submits (para 155 above), by which the emissions from the use of the North West Runway can be controlled.
+(ii) non CO emissions
+To understand FoEs argument in relation to non CO emissions, it is necessary first to identify what are the principal emissions which give rise to concern.
+Mr Tim Johnson, of the Aviation Environmental Federation, explained in his first witness statement that aircraft emit nitrogen oxides, water vapour and sulphate and soot aerosols, which combine to have a net warming effect.
+Depending on atmospheric humidity, the hot air from aircraft exhausts combines with water vapour in the atmosphere to form ice crystals which appear as linear condensation trails and can lead to cirrus like cloud formation.
+Using the metric of radiative forcing (RF), which is a measure of changes in the energy balance of the atmosphere in watts per square metre, it is estimated that the overall RF by aircraft is 1.9 times greater than the forcing by aircraft CO emissions alone, but the RF metric is not suitable for forecasting future impacts.
+He recognised that there is continuing uncertainty about the impacts of non CO emissions, which tend to be short lived, but he stated that there is high scientific consensus that the total climate warming effect of aviation is more than that from CO emissions alone.
+Scientists are exploring metrics to show how non CO impacts can be reflected in emission forecasts for the purpose of formulating policy.
+There is substantial agreement between the parties that there is continuing uncertainty in the scientific community about the effects of non CO emissions.
+The Department for Transport acknowledged this uncertainty in the AoS (para 6.11.11): The assessment undertaken is based on CO emissions only There are likely to be highly significant climate change impacts associated with non CO emissions from aviation, which could be of a similar magnitude to the CO emissions themselves, but which cannot be readily quantified due to the level of scientific uncertainty and have therefore not been assessed.
+There are also non CO emissions associated with the operation of the airport infrastructure, such as from refrigerant leaks and organic waste arisings, however, evidence suggests that these are minor and not likely to be material.
+The AoS returned to this topic (Appendix A 9, para 9.11.5): In addition, there are non carbon emissions associated with the combustion of fuels in aircraft engines while in flight, which are also thought to have an impact on climate change.
+As well as CO, combustion of aviation fuel results in emission of water vapour, nitrogen oxides (NO) and aerosols.
+NO are indirect greenhouse gases, in that they do not give rise to a radiative effect themselves, but influence the concentration of other direct greenhouse gases With the exception of sulphate aerosols, all other emissions cause warming.
+In addition, the flight of aircraft can also cause formation of linear ice clouds (contrails) and can lead to further subsequent aviation induced cloudiness.
+These cloud effects cause additional warming.
+Evidence suggests that the global warming impact of aviation, with these sources included, could be up to two times that of the CO impact by itself, but that the level of scientific uncertainty involved means that no multiplier should be applied to the assessment.
+For these reasons the [Airports Commission] did not assess the impact of the non CO effects of aviation and these have not been included in the AoS assessment.
+This position is kept under review by DfT but it is worth noting that non CO emissions of this type are not currently included in any domestic or international legislation or emissions targets and so their inclusion in the assessment would not affect its conclusion regarding legal compliance.
+It is recommended that further work be done on these impacts by the applicant during the detailed scheme design, according to the latest appraisal guidance. (Emphasis added)
+This approach of addressing the question of capacity by reference to CO emissions targets, keeping the policy in relation to non CO emissions under review and requiring an applicant for a DCO to address such impacts by reference to the state of knowledge current at the time of the determination of its application was consistent with the advice of the CCC to the Airports Commission and to the Secretary of State.
+The Airports Commission recorded that advice in its interim report in December 2013: because of the uncertainties in the quantification of the impact of non CO emissions, the target for constraining CO emissions remained the most appropriate basis for planning future airport capacity.
+The approach of reconsidering the effect of all significant emissions when determining an application for a DCO is reflected in the ANPS which addressed the CO emissions target and stated (para 5.76): Pursuant to the terms of the Environmental Impact Assessment Regulations, the applicant should undertake an assessment of the project as part of the environmental statement, to include an assessment of any likely significant climate factors.
+The applicant should quantify the greenhouse gas impacts before and after mitigation to show the impacts of the proposed mitigation. (Emphasis added) The approach remains consistent with the CCCs advice since the designation of the ANPS.
+In its letter of 24 September 2019 to the Secretary of State recommending that international aviation and shipping emissions be included in a net zero CO emissions target, the CCC stated: Aviation is likely to be the largest emitting sector in the UK by 2050, even with strong progress on technology and limiting demand.
+Aviation also has climate warming effects beyond CO, which it will be important to monitor and consider within future policies. (Emphasis added)
+The Government in its response to consultations on the ANPS (para 11.50) stated that it will address how policy might make provision for the effects of non CO aviation emissions in its Aviation Strategy.
+That strategy is due to be published shortly.
+The Secretary of State when he designated the ANPS was aware that the applicant for a DCO in relation to the NWR Scheme would have to provide an environmental assessment which addressed, and would be scrutinised against, the then current domestic and international rules and policies on aviation and other emissions.
+He would have been aware of his power to make requirements under section 120 of the PA 2008 and to depart from the ANPS in the circumstances set out in section 104 of that Act (para 157 above).
+The Court of Appeal (para 258) upheld FoEs challenge stating the precautionary principle and common sense suggested that scientific uncertainty was not a reason for not taking something into account at all, even if it could not be precisely quantified at this stage.
+The Court did not hold in terms that the Secretary of State had acted irrationally in this regard but said (para 261) that, since it was remitting the ANPS to the Secretary of State for reconsideration, the question of non CO emissions and the effect of post 2050 emissions would need to be taken into account as part of that exercise.
+We respectfully disagree with that approach.
+The precautionary principle adds nothing to the argument in this context and we construe the judgment as equating the principle with common sense.
+But a courts view of common sense is not the same as a finding of irrationality, which is the only relevant basis on which FoE seeks to impugn the designation in its section 10 challenges.
+In any event we are satisfied that the Secretary of States decision to address only CO emissions in the ANPS was not irrational.
+In summary, we agree with the Divisional Court that it is not reasonably arguable that the Secretary of State acted irrationally in not addressing the effect of the non CO emissions in the ANPS for six reasons.
+First, his decision reflected the uncertainty over the climate change effects of non CO emissions and the absence of an agreed metric which could inform policy.
+Secondly, it was consistent with the advice which he had received from the CCC.
+Thirdly, it was taken in the context of the Governments inchoate response to the Paris Agreement.
+Fourthly, the decision was taken in the context in which his department was developing as part of that response its Aviation Strategy, which would seek to address non CO emissions.
+Fifthly, the designation of the ANPS was only the first stage in a process by which permission could be given for the NWR Scheme to proceed and the Secretary of State had powers at the DCO stage to address those emissions.
+Sixthly, it is clear from both the AoS and the ANPS itself that the applicant for a DCO would have to address the environmental rules and policies which were current when its application would be determined.
+Conclusion
+It follows that HAL succeeds on each of grounds (i) to (iv) of its appeal.
+It is not necessary therefore to address ground (v) which is concerned with the question whether the court should have granted the relief which it did.
+We would allow the appeal.
diff --git a/UK-Abs/test-data/stats-UK-test.txt b/UK-Abs/test-data/stats-UK-test.txt
new file mode 100644
index 0000000000000000000000000000000000000000..cf913a896f4e853c17ca38c687c79632a0716959
--- /dev/null
+++ b/UK-Abs/test-data/stats-UK-test.txt
@@ -0,0 +1,100 @@
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diff --git a/UK-Abs/test-data/summary/full/uksc-2009-0022.txt b/UK-Abs/test-data/summary/full/uksc-2009-0022.txt
new file mode 100644
index 0000000000000000000000000000000000000000..dccf15e9eec397a991e809737bad6031ee637601
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2009-0022.txt
@@ -0,0 +1,47 @@
+The issue in this appeal is whether a failure by the Respondent to comply with a procedural requirement in its policy relating to the detention of foreign national prisoners results in their detention being unlawful, so as to allow the detainee to advance a claim in tort for false imprisonment.
+Shepherd Masimba Kambadzi is a Zimbabwean national.
+He entered the UK lawfully, but remained here after his leave to remain expired.
+In 2005, he was convicted of assault and sexual assault, sentenced to one years imprisonment and ordered to be registered as a sex offender for five years.
+Prior to his being released from prison, the Respondent decided to make a deportation order against the Appellant.
+Paragraph 2(2) of Schedule 3 to the Immigration Act 1971 (the 1971 Act) gives the Secretary of State the power to detain foreign nationals pending the making of a deportation order and the Appellant was detained under that power on 7 March 2006.
+On 24 August 2007, a deportation order was made against the Appellant, after which he was detained under paragraph 2(3) of Schedule 3 to the 1971 Act.
+In all, he was detained for 27 months until 13 June 2008, when he was granted bail.
+He has not yet been returned to Zimbabwe because of conditions in that country.
+The common law has recognised limits on the extent of the power to detain under paragraphs 2(2) and (3) of Schedule 3 to the 1971 Act (the Hardial Singh principles, set down in R v Governor of Durham Prison Ex p Hardial Singh [1984] 1 WLR 904).
+The Respondent had a policy which detailed how the power to detain was to be exercised.
+It provided, for example, that all reasonable alternatives to detention must be considered before detention was authorised.
+The policy also provided for detention to be subject to review at regular intervals.
+It specified the frequency of review and the grade of official which was to carry them out.
+The policy required the Appellants detention to be reviewed on five occasions during the first month and then monthly thereafter.
+The Appellants detention was not reviewed in accordance with that policy.
+By the date of the first instance hearing of this claim, he had been entitled to 22 monthly reviews of the lawfulness of his detention, in addition to the five reviews which should have taken place in the first month.
+His detention had been reviewed only ten times.
+Only six of those reviews had been conducted by officials of the required seniority and, of those six, two were flawed by material errors of fact.
+The substantive requirements for detaining the Appellant were, however, met throughout the period of his detention: had the Respondent carried out the reviews, it could justifiably have decided to continue to detain him.
+While still detained, the Appellant raised a judicial review, seeking a declaration that he was unlawfully detained and damages.
+At first instance, Munby J granted a declaration that the Appellant had been unlawfully detained for various periods amounting to about 19 months and gave directions for the assessment of damages, but he declined to order his release. (The Appellant was subsequently granted bail in other proceedings.) The Court of Appeal allowed the Secretary of States appeal and held that the Appellants detention had been lawful throughout.
+Although the Supreme Court heard the appeal in February 2010, it delayed handing down its judgment so as to be enable a court of nine Justices to consider the case of R (Lumba) v Secrteary of State for the
+Home Department [2011] UKSC 12.
+That case also considered the legality of the detention of foreign national prisoners where the Secretary of State has not complied with the terms of the published policy relating to detention.
+The Supreme Court, by a majority, allows the appeal.
+Lord Hope gives the leading judgment; Lady Hale and Lord Kerr issue separate concurring judgments.
+The majority holds that the Appellants detention was unlawful for the periods in respect of which no review was carried out and that he does have a claim in tort for false imprisonment in respect of those periods.
+The amount of damages is yet to be ascertained, but will be nominal if it is found that the Appellant would have been detained even if his detention had been reviewed as the policy required.
+Lord Brown gives a dissenting judgment, with which Lord Rodger agrees.
+The Secretary of State was under a public law duty to adhere to the terms of the policy relating to reviews unless there were good reasons not to: [36], [39], [66].
+The majority of the Court holds that the Respondents unlawful failure to review the Appellants detention, as required by the policy, resulted in his detention being unlawful.
+The court rejects the argument that because the breach of public law related to a procedural requirement, it did not affect the legality of the detention: [69] [73], [85].
+Some procedural requirements go to the legality of the detention and some do not: [71].
+The policy was sufficiently closely related to the authority to detain to qualify the Secretary of States discretion under the 1971 Act: [51].
+The very point of the review was to ensure that the detention was lawful: [73], [86].
+The public law error bore directly on the decision to detain the Appellant and therefore satisfied the test adopted by the majority in Lumba for determining when a public law error will result in detention being unlawful: [42], [88].
+The Appellants detention was not unlawful, however, where the only defect in the decision to continue detention was that the review had been carried out by an official of the wrong grade: [60].
+As the Court also held in Lumba, it was no defence to the claim that there were grounds which justified the Appellants detention: [54], [73], [88].
+False imprisonment is a trespass to the person and actionable in itself, without proof of loss or damage: [74].
+The result of the reviews which should have taken place is, however, relevant to assessing damages.
+A defendant is liable only for the loss which his wrongful act has caused.
+The full facts of this case are yet to be established, but if it is found that the claimant would not have been released had proper reviews been carried out, he will only be entitled to nominal damages: [55] [56], [74], [89].
+Lord Brown (with whom Lord Rodger agrees) would have held that the failure to review the Appellants detention did not result in the Appellants detention being unlawful.
+They hold that the policy did not confer upon the Appellant an entitlement to be released, but only an entitlement to be reviewed for release: [107].
+Once properly detained, a detainee remains lawfully imprisoned unless and until released on bail or by the Secretary of States direction, or he establishes a substantive entitlement to release: [111].
+Lumba does not compel the majoritys result, because it was concerned with a substantive entitlement under the policy and not a procedural one, and because it also held that not every breach of public law resulted in detention being unlawful: [116] [118].
diff --git a/UK-Abs/test-data/summary/full/uksc-2009-0073.txt b/UK-Abs/test-data/summary/full/uksc-2009-0073.txt
new file mode 100644
index 0000000000000000000000000000000000000000..5a631f5b7c40782cfc00d7e705a1825725f3d576
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2009-0073.txt
@@ -0,0 +1,19 @@
+The appellants were convicted of serious criminal offences after trials in which the victims of the offences did not give evidence: in one case because he had since died and in the other because she had run away in fear when the trial was about to commence.
+In each case a statement from the victim was admitted pursuant to s 116 Criminal Justice Act 2003 and placed before the jury.
+The appellants complained that their convictions were based solely or to a decisive extent on the statement of a witness whom they had had no chance to cross examine.
+This had infringed their right to a fair trial guaranteed by articles 6(1) and 6(3) of the European Convention on Human Rights which provide: 6(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law (3) Everyone charged with a criminal offence has the following minimum rights: (d) To examine or have examined witnesses against him and to obtain the attendance and examination of The Court of Appeal had dismissed the appellants appeals against conviction, holding that the test of fairness laid down by the European Court of Human Rights in Al Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1 was not determinative of the results in these appeals.
+The United Kingdom had requested that this decision be referred to the Grand Chamber of the Strasbourg Court.
+On 5 June 2009 the Panel of the Grand Chamber adjourned consideration of that request pending the judgement of the Supreme Court in this case.
+The Supreme Court unanimously dismissed the appeal.
+The judgment of the court was given by Lord Phillips, President. witnesses on his behalf under the same conditions as witnesses against him.
+The questions before the court were (i) whether the regime enacted by Parliament in relation to the admission of the evidence of an absent witness at a criminal trial will result in an unfair trial and, if not (ii) whether the case law of the European Court on Human Rights nonetheless requires the court to apply that regime in a manner contrary to the intention of Parliament.
+The requirement to take into account any judgment of the European Court of Human Rights found in s 2 Human Rights Act 1998 would normally result in the Supreme Court applying principles that were clearly established by the Strasbourg court.
+There would however be rare occasions where the court had concerns as to whether a decision of the Strasbourg court sufficiently appreciated or accommodated particular aspects of the UK trial process.
+In such circumstances it was open to the Supreme Court to decline to follow the Strasbourg decision, giving reasons for adopting this course.
+This was likely to give the Strasbourg Court the opportunity to reconsider the particular aspect of the decision that was in issue, so that there took place what might prove to be a valuable dialogue between the courts [para 11].
+The conclusions of the Court of Appeal were correct and the judgement of the Supreme Court should be read as complementary to that of the Court of Appeal and not as a substitute for it [para 13].
+The Supreme Court held that the appellants trials were fair notwithstanding the decision in Al Khawaja for the following reasons: (i) The common law hearsay rule addressed the aspect of a fair trial covered by article 6(3)(d).
+Parliament had enacted exceptions to the hearsay rule in a regime which contained safeguards that rendered the sole or decisive rule unnecessary. (ii) The Strasbourg Court had recognised that exceptions to article 6(3)(d) were required in the interests of justice but the jurisprudence on the exceptions lacked clarity and had introduced a sole or decisive rule without discussion of the principle underlying it or full consideration of whether it was justified to impose it equally on common law and continental jurisdictions (iii) The sole or decisive rule would create severe practical difficulties if applied to English criminal procedure.
+In almost all cases English law would reach the same result without it.
+Al Khawaja did not establish that it was necessary to apply the rule in this jurisdiction.
+Judgments
diff --git a/UK-Abs/test-data/summary/full/uksc-2009-0105.txt b/UK-Abs/test-data/summary/full/uksc-2009-0105.txt
new file mode 100644
index 0000000000000000000000000000000000000000..0328531f04983cf397e708c08a97562a3d048b5f
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2009-0105.txt
@@ -0,0 +1,81 @@
+E challenged JFSs (formerly the Jews Free School) refusal to admit his son, M, to the school.
+JFS is designated as a Jewish faith school.
+It is over subscribed and has adopted as its oversubscription policy an approach of giving precedence in admission to those children recognised as Jewish by the Office of the Chief Rabbi of the United Hebrew Congregation of the Commonwealth (the OCR).
+The OCR only recognises a person as Jewish if: (i) that person is descended in the matrilineal line from a woman whom the OCR would recognise as Jewish; or (ii) he or she has undertaken a qualifying course of Orthodox conversion.
+E and M are both practising Masorti Jews.
+E is recognised as Jewish by the OCR but Ms mother is of Italian and Catholic origin and converted to Judaism under the auspices of a non Orthodox synagogue.
+Her conversion is not recognised by the OCR.
+Ms application for admission to JFS was therefore rejected as he did not satisfy the OCR requirement of matrilineal descent.
+E challenged the admissions policy of JFS as directly discriminating against M on grounds of his ethnic origins contrary to section 1(1)(a) of the Race Relations Act 1976 (the 1976 Act).
+Alternatively, E claimed that the policy was indirectly discriminatory.
+The High Court rejected both principal claims.
+The Court of Appeal unanimously reversed the High Court, holding that JFS directly discriminated against M on the ground of his ethnic origins.
+JFS appealed to the Supreme Court.
+The United Synagogue also appealed a costs order made against it by the Court of Appeal.
+The Supreme Court has dismissed the appeal by The Governing Body of JFS.
+On the direct discrimination issue, the decision was by a majority of five (Lord Phillips, Lady Hale, Lord Mance, Lord Kerr and Lord Clarke) to four (Lord Hope, Lord Rodger, Lord Walker and Lord Brown).
+The Majority held that JFS had directly discriminated against M on grounds of his ethnic origins.
+Lords Hope and Walker in the minority would have dismissed the appeal on the ground that JFS had indirectly discriminated against M as it had failed to demonstrate that its policy was proportionate.
+Lords Rodger and Brown would have allowed JFSs appeal in its entirety.
+The Supreme Court unanimously allowed in part the United Synagogues appeal on costs.
+The Majority Judgments The judgments of the Court should not be read as criticising the admissions policy of JFS on moral grounds or suggesting that any party to the case could be considered racist in the commonly understood, pejorative, sense.
+The simple legal question to be determined by the Court was whether in being denied admission to JFS, M was disadvantaged on grounds of his ethnic origins (or his lack thereof) (paras [9], [54], [124] and [156]).
+Direct Discrimination General Principles In determining whether there is direct discrimination on grounds of ethnic origins for the purposes of the 1976 Act, the court must determine, as a question of fact, whether the victims ethnic origins are the factual criterion that determined the decision made by the discriminator (paras [13], [16], [20] and [62]).
+If so, the motive for the discrimination and/or the reason why the discriminator considered the victims ethnic origins significant is irrelevant (paras [20], [22], [62] and [142]).
+Where the factual criteria upon which discriminatory treatment is based are unclear, unconscious or subject to dispute the court will consider the mental processes of the discriminator in order to infer as a question of fact from the available evidence whether there is discrimination on a prohibited ground (paras [21], [64], [115] and [133]).
+It is only necessary to consider the mental processes of the discriminator where the factual criteria underpinning the discrimination are unclear (para [114]).
+To treat an individual less favourably on the ground that he lacks certain prescribed ethnic origins constitutes direct discrimination.
+There is no logical distinction between such a case and less favourable treatment predicated upon the fact that an individual does possess certain ethnic origins (paras [9] and [68]).
+Direct discrimination does not require that the discriminator intends to behave in a discriminatory manner or that he realises that he is doing so (para [57]).
+There is no need for any consideration of mental processes in this case as the factual criterion that determined the refusal to admit M to JFS is clear: the fact that he is not descended in the matrilineal line from a woman recognised by the OCR as Jewish.
+The subjective state of mind of JFS, the OCR and/or the Chief Rabbi is therefore irrelevant (paras [23], [26], [65], [78], [127], [132], [136], [141] and [147] [148]).
+The crucial question to be determined is whether this requirement is properly characterised as referring to Ms ethnic origins (paras [27], [55] and [65]).
+Application in This Case The test applied by JFS focuses upon the ethnicity of the women from whom M is descended.
+Whether such women were themselves born as Jews or converted in a manner recognised by the OCR, the only basis upon which M would be deemed to satisfy the test for admission to JFS would be that he was descended in the matrilineal line from a woman recognised by the OCR as Jewish (para [41] per Lord Phillips).
+It must also be noted that while it is possible for women to convert to Judaism in a manner recognised by the OCR and thus confer Orthodox Jewish status upon their offspring, the requirement of undergoing such conversion itself constitutes a significant and onerous burden that is not applicable to those born with the requisite ethnic origins this further illustrates the essentially ethnic nature of the OCRs test (para [42] per Lord Phillips).
+The test of matrilineal descent adopted by JFS and the OCR is one of ethnic origins.
+To discriminate against a person on this basis is contrary to the 1976 Act (para [46] per Lord Phillips).
+The reason that M was denied admission to JFS was because of his mothers ethnic origins, which were not halachically Jewish.
+She was not descended in the matrilineal line from the original Jewish people.
+There can be no doubt that the Jewish people are an ethnic group within the meaning of the 1976 Act.
+While JFS and the OCR would have overlooked this fact
+if Ms mother had herself undergone an approved course of Orthodox conversion, this could not alter the fundamental nature of the test being applied.
+If Ms mother herself was of the requisite ethnic origins in her matrilineal line no conversion requirement would be imposed.
+It could not be said that M was adversely treated because of his religious beliefs.
+JFS and the OCR were indifferent to these and focussed solely upon whether M satisfied the test of matrilineal descent (paras [66] and [67] per Lady Hale).
+Direct discrimination on grounds of ethnic origins under the 1976 Act does not only encompass adverse treatment based upon membership of an ethnic group defined in the terms elucidated by the House of Lords in Mandla v Dowell Lee [1983] 2 AC 548.
+The 1976 Act also prohibits discrimination by reference to ethnic origins in a narrower sense, where reference is made to a persons lineage or descent (paras [80] [84] per Lord Mance).
+The test applied by JFS and the OCR focuses on genealogical descent from a particular people, enlarged from time to time by the assimilation of converts.
+Such a test is one that is based upon ethnic origins (para [86] per Lord Mance).
+This conclusion is buttressed by the underlying policy of the 1976 Act, which is that people must be treated as individuals and not be assumed to be like other members of a group: treating an individual less favourably because of his ancestry ignores his unique characteristics and attributes and fails to respect his autonomy and individuality.
+The UN Convention on the Rights of the Child requires that in cases involving children the best interests of the child are the primary consideration (para [90] per Lord Mance).
+The reason for the refusal to admit M to JFS was his lack of the requisite ethnic origins: the absence of a matrilineal connection to Orthodox Judaism (para [112] per Lord Kerr).
+Ms ethnic origins encompass, amongst other things, his paternal Jewish lineage and his descent from an Italian Roman Catholic mother.
+In denying M admission on the basis that he lacks a matrilineal Orthodox Jewish antecedent, JFS discriminated against him on grounds of his ethnic origins (paras [121] [122] per Lord Kerr).
+It might be said that the policy adopted by JFS and the OCR was based on both ethnic grounds and grounds of religion, in that the reason for the application of a test based upon ethnic origins was the conviction that such a criterion was dictated by Jewish religious law.
+The fact that the rule adopted was of a religious character cannot obscure or alter the fact that the content of the rule itself applies a test of ethnicity (paras [129] [131] per Lord Clarke).
+The fact that a decision to discriminate on racial grounds is based upon a devout, venerable and sincerely held religious belief or conviction cannot inoculate or excuse such conduct from liability under the 1976 Act (paras [35], [92], [113] and [119] [120]).
+Further Comments It is not clear that the practice based test adopted by JFS following the Court of Appeals judgment will result in JFS being required to admit children who are not regarded by Jewish by one or more of the established Jewish movements (para [50] per Lord Phillips).
+It may be arguable that an explicit exemption should be provided from the provisions of the 1976 Act in order to allow Jewish faith schools to grant priority in admissions on the basis of matrilineal descent; if so, formulating such an exemption is unquestionably a matter for Parliament (paras [69] [70] per Lady Hale).
+Indirect Discrimination As the case is one of impermissible direct discrimination it is unnecessary to address the claim of indirect discrimination (para [51] per Lord Phillips).
+Direct and indirect discrimination are mutually exclusive; both concepts cannot apply to a single case concurrently.
+As this case is one of direct discrimination it could not be one of indirect discrimination (para [57] per Lady Hale).
+Ex hypothesi, if the case was not direct discrimination, then the policy was indirectly discriminatory (para [103]).
+The policy pursued the legitimate aim of effectuating the obligation imposed by Jewish religious law to educate those regarded by the OCR as Jewish (paras [95] [96]).
+However, JFS had not, and on the basis of the evidence before the court could not, demonstrate that the measures it adopted, given the gravity of their adverse effect upon
+individuals such as M, were a proportionate means of pursuing this aim (paras [100] [103], [123] and [154]).
+The Minority Judgments Direct Discrimination In identifying the ground on which JFS refused to admit M to the school the Court should adopt a subjective approach which takes account of the motive and intention of JFS, the OCR and the Chief Rabbi (para [195] [197] per Lord Hope).
+In the instant case JFS, the OCR and the Chief Rabbi were subjectively concerned solely with Ms religious status, as determined by Jewish religious law.
+There is no cause to doubt the Chief Rabbis frankness or good faith on this matter (para [201] per Lord Hope).
+The availability of conversion demonstrates that the test applied is inherently of a religious rather than racial character (para [203] per Lord Hope).
+It is inapt to describe the religious dimension of the test being applied by JFS as a mere motive (paras [201] per Lord Hope; [227] per Lord Rodger).
+The appropriate comparator for M in this case is a child whose mother had converted under Orthodox Jewish auspices.
+The ground of difference in treatment between M and such a child would be that the latters mother had completed an approved course of Orthodox conversion (paras [229] [230] per Lord Rodger).
+Indirect Discrimination Lords Hope and Walker Clearly, children who were not of Jewish ethnic origin in the matrilineal line were placed at a disadvantage by JFSs admission policy relative to those who did possess the requisite ethnic origins (para [205]).
+JFSs policy pursued the legitimate aim of educating those regarded as Jewish by the OCR within an educational environment espousing and practising the tenets of Orthodox Judaism (para [209]).
+The 1976 Act placed the onus on JFS to demonstrate that in formulating its policy it had carefully considered the adverse effect of its policy on M and other children in his position and balanced this against what was required to give effect to the legitimate aim which it sought to further (para [210]).
+There is no evidence that JFS considered whether less discriminatory means might be adopted which would not undermine its religious ethos: the failure to consider alternate, potentially less discriminatory, admission policies means that JFS is not entitled to a finding that the means which it has employed are proportionate (paras [212] and [214]).
+Lords Rodger and Brown The objective pursued by JFSs admission policy educating those children recognised by the OCR as Jewish was irreconcilable with any approach that would give precedence to children not recognised as Jewish by the OCR in preference to children who were so recognised.
+JFSs policy was therefore a rational way of giving effect to the legitimate aim pursued and could not be said to be disproportionate. (para [233] per Lord Rodger; para [256] per Lord Brown).
+The United Synagogue Costs Appeal The United Synagogue must pay 20 per cent. of Es costs from the Court of Appeal but not those incurred in the High Court.
+The 20 per cent. of Es costs in the High Court previously allocated to the United Synagogue must be borne by JFS in addition to the 50 per cent. that it has already been ordered to pay (para [217]).
diff --git a/UK-Abs/test-data/summary/full/uksc-2009-0118.txt b/UK-Abs/test-data/summary/full/uksc-2009-0118.txt
new file mode 100644
index 0000000000000000000000000000000000000000..04ee3264d376144abe89c246b422f6fbe4673374
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2009-0118.txt
@@ -0,0 +1,34 @@
+Farstad Supply AS (Farstad) owned an oil rig supply vessel which was damaged by fire while berthed in harbour on 7 July 2002.
+At the time of the fire, the third party charterer, Asco UK Limited (Asco), had engaged the defender, Enviroco Limited (Enviroco), to clean out tanks on board the vessel.
+Following the fire, Farstad sued Enviroco for damages, alleging that the fire was caused by the negligence of Envirocos employees.
+Enviroco, as well as alleging contributory negligence against Farstads employees, sought a contribution from Asco under section 3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 (the 1940 Act).
+Section 3 of the 1940 Act is entitled Contribution among joint wrongdoers.
+Section 3(1) deals with the case where the party suing (Farstad) proceeds against two defenders in respect of loss or damage caused by both and a judgment is given against both, so that both are found jointly and severally liable in damages.
+Subsection (2) provides that a defender who has been held liable and pays damages to the suing party under subsection (1), has a right to recover such contribution as the court deems just from any other person who, if sued, might also have been held liable in respect of the loss or damage on which the action was founded.
+By clause 33(5) of the charterparty, Farstad agreed to defend, indemnify and hold harmless Asco from all liabilities resulting from damage to the vessel.
+If therefore Enviroco was entitled to a contribution from Asco under section 3(2) it was agreed that Asco would (at the least) be entitled to an indemnity from Farstad under clause 33(5).
+Whatever the result therefore, Asco would not ultimately be liable.
+In the Outer House, Court of Session, the Lord Ordinary held that Enviroco was not entitled to a contribution from Asco under section 3(2) of the 1940 Act.
+An Extra Division of the Inner House, Court of Session, allowed Envirocos subsequent reclaiming motion by a majority of 2:1.
+Farstad appealed to the Supreme Court to restore the decision of the Lord Ordinary.
+The three agreed issues to be decided on appeal were: 1) The meaning and effect of section 3(2) of the 1940 Act; 2) Whether a defence provided by a pre existing contract (such as the charterparty) can be taken into account in determining whether a person if sued, might also have been held liable for the purposes of section 3(2); and 3) If the answer to (2) is yes, whether clause 33(5) of the charterparty has the effect that Asco is not a person who, if sued, might have also been held liable to Farstad for the purposes of section 3(2).
+The Supreme Court unanimously allows the appeal.
+The Court holds that Enviroco is not entitled to a contribution from Asco under section 3(2) of the 1940 Act because it cannot establish that if sued Asco might have been liable to Farstad in respect of losses caused by the fire.
+Lord Clarke delivered the leading judgment.
+Lord Clarke, with whom all other members of the Court agree, considered the first two questions together as both involve the construction of the 1940 Act.
+Although section 3(2) is specifically intended to deal with the position where there are two actions it is not limited to such a case and the claim for contribution could be made by third party proceedings in the same action (paras [11] [12]).
+The words if sued are to be construed as meaning relevantly, competently and timeously sued (para [14]).
+The question under section 3(2) is whether, if Asco had been sued by Farstad, it would have been liable.
+That depends upon whether Asco would have had a defence to Farstads claim.
+The outcome of the appeal therefore depends upon the true construction of the charterparty, with the essential question being whether clause 33.5 of the charterparty excludes Ascos liability to Farstad in respect of damage to the vessel caused by Ascos own negligence (paras [15] [16]).
+The Court found that it does (paras [24], [29]).
+Enviroco is not entitled to contribution from Asco under section 3(2) of the 1940 Act because it cannot establish that if sued Asco might have been liable to Farstad in respect of losses caused by the fire (paras [15], [16], [19] [29]).
+This conclusion makes the remaining question whether the position would be different if clause 33.5 were only an indemnity rather than an exclusion clause irrelevant.
+The Court did not accept the argument that, if clause 33.5 was only an indemnity clause Farstad would have been entitled to a joint and several decree against both Asco and Enviroco and both would be found joint and severally liable in damages within the meaning of section 3(1) of the 1940 Act.
+The charterparty is governed by English law and such a claim by Farstad would be met by the defence of circuity of action.
+In other words, it would be useless in such circumstances to give judgment for Farstad against Asco as there could be no order of the court that Asco pay damages to Farstad.
+Although not called circuity of action, Scots law applies what is in effect the same principle.
+Therefore, even if it were a matter of Scots law, the answer would be the same and any action by Farstad against Asco would clearly fail (paras [30] [34], [44], [59]).
+In his judgment, Lord Rodger confirmed that the Courts construction of section 3(2) is in line with the established case law of the courts of New Zealand and Canada on similar provisions.
+The policy which underlies the decisions of those courts is equally applicable to Scots law.
+The appeal is allowed and the decision of the Lord Ordinary is restored.
diff --git a/UK-Abs/test-data/summary/full/uksc-2009-0125.txt b/UK-Abs/test-data/summary/full/uksc-2009-0125.txt
new file mode 100644
index 0000000000000000000000000000000000000000..9484ae60aee88a5237f3dbd3374813febcedf47e
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2009-0125.txt
@@ -0,0 +1,42 @@
+As originally enacted, s.33 and Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988 (the RTOA) provided that the maximum sentence that a Sheriff sitting summarily could impose in respect of the offence of driving while disqualified (s.103(1)(b) of the Road Traffic Act 1988 (the RTA)) was six months imprisonment or the statutory maximum fine or both.
+If the offence was prosecuted on indictment, the maximum sentence was 12 months imprisonment or a fine or both.
+Following a recommendation by a committee appointed to review the provision of summary justice in Scotland that the criminal jurisdiction of judges sitting summarily should be increased to a maximum of 12 months, the Criminal Proceedings etc (Reform)(Scotland) Act 2007 (the 2007 Act) was enacted by the Scottish Parliament.
+S.45 of that Act increased the maximum sentence that sheriffs sitting summarily could impose for the offence of driving while disqualified to 12 months imprisonment.
+On 17 December 2007 and 14 May 2008, respectively, in summary proceedings Sean Martin and Ross Miller were each sentenced by Sheriffs to periods in excess of six months imprisonment for driving while disqualified contrary to s.103(1)(b) of the RTA.
+They both sought to challenge their sentences on the basis that amending the relevant provisions of the 2007 Act were outside the legislative competence of the Scottish Parliament.
+The High Court of Justiciary (the HCJ) dismissed the appeals, holding that the increase in the sentencing power of Sheriffs sitting summarily by s.45 of the 2007 Act was within the Scottish Parliaments legislative competence.
+The HCJ gave the Appellants permission to appeal to the Supreme Court.
+The Supreme Court, by a majority of three to two (Lord Rodger and Lord Kerr dissenting), dismisses the appeals.
+The Court holds that the provision in question was within the Scottish Parliaments legislative competence.
+Lord Hope delivered the leading judgment on behalf of the majority.
+Majority Judgments The answer to the question raised by this case is to be found by applying the rules laid down in s 29 and Part 1 of Schedule 4 the Scotland Act 1998 which determine whether a provision of an Act is
+outside the Scottish Parliaments legislative competence.
+Three questions arise in this case: (1) whether the purpose of s.45 was to modify Scots criminal law as defined in s.126(5) of the Scotland Act; (2) if so, whether its purpose was to make the law apply consistently to reserved matters and otherwise; and (3) if (1) and (2) are answered in the affirmative, whether the rule that s.45 modified was special to a reserved matter within the meaning of para 2(3) of Schedule 4 [para [22]].
+The purpose of s.45 of the Criminal Proceedings etc (Reform)(Scotland) 2007 Act The available material conclusively demonstrates that the purpose of s.45 was to contribute to the reform of summary justice by reducing pressure on the higher courts.
+The jurisdiction of a Sheriff is defined by the penalties which he can impose and his powers in this respect are quintessentially matter of Scots criminal law.
+S.45 was directed to a rule of Scots criminal law, so it does not relate to a reserved matter within the meaning of s.29(2)(b) of the Scotland Act 1998 [para [31]].
+Was s.46 concerned to ensure that law applied consistently between reserved and non reserved matters? S.45 is one of a group of related provisions contained in the 2007 Act increasing the summary sentencing powers of Sheriffs in respect of a number of common law and statutory offences.
+If the 2007 Act had increased the sentencing power in respect of common law but not statutory offences the reform would have been incomplete and confusing.
+This problem would have been exacerbated if the reform had attempted to distinguish between statutory offences related to reserved matters and those which did not.
+The purpose of s.45 was to ensure that the law relating to the sentencing powers of Sheriffs was consistent as between offences concerning reserved matters and otherwise.
+Consequently, s.45 is not related to a reserved matter for the purpose of s.29(4) of the Scotland Act 1998 [paras [32] [33]].
+Is the sentencing jurisdiction of a Sheriff in relation to road traffic offences special to the Road Traffic Offenders Act 1988 and the Road Traffic Act 1988? In identifying the rule of law that is being modified for the purpose of the test established by para 2(3) of Schedule 4, regard may be had to the purpose of the legislative provision effecting the modification [para [34]].
+The key to the decision in this case lies in identifying the rule that is being modified.
+This is achieved by examining the purpose of the legislative provision which is under scrutiny [para [38] and [39]].
+S.33 and Part 1 of Schedule 2 to the RTOA and s.103(1)(b) of the RTA contain, in effect, two rules of Scots criminal law.
+Firstly, that the overall maximum sentence in respect of driving while disqualified is 12 months.
+Secondly, the route by which the maximum sentence can be imposed.
+The former provision is plainly a rule that is special to the RTOA and RTA and is a reserved matter that the Scottish Parliament has no power to modify.
+However, the latter is a rule concerning Scots criminal jurisdiction and procedure which is not reserved.
+The change in the law effected by s.45 does not alter the maximum period of imprisonment for the offence of driving while disqualified.
+It relates to the procedure which determines whether the sheriff has power to impose that sentence.
+The rule of Scots law being modified is the rule of Scots criminal procedure.
+This rule of procedure is not special to the RTOA or RTA [para [37]].
+Had it been necessary to address the point, para 3 of Schedule 4 (which provides that legislation having incidental or minor effects upon reserved matters shall be within competence) could not, contrary to the conclusion reached by the HCJ, render s.45 within the Scottish Parliaments legislative competence. s.45 constituted an important modification to a rule of Scots criminal procedure that could not be regarded as incidental or consequential [para [40]].
+Accordingly the court holds that s.45 is within the legislative competence of the Scottish Parliament.
+The appeals are dismissed and remitted to the HCJ for any further orders that may be required [para [43]].
+Dissenting Judgments Lord Rodger agreed that s.45 did not relate to a reserved matter [para [119]].
+But he would have held that the provision of the RTOA prescribing the maximum term of imprisonment for a summary conviction for driving while disqualified is special to a reserved matter, in the sense that the United Kingdom Parliament has chosen it specifically for that offence.
+Lord Rodger did not agree that the purpose of the modifying provision can be a relevant consideration in identifying the rule of Scots law that is being modified for the purpose of para 2(3) of Schedule 4 [para [143]].
+He also did not agree that the purpose of a provision which purports to modify a rule of Scots law can be used to determine whether that rule is special to a reserved matter [para [145]].
+Lord Kerr agreed with Lord Rodger.
diff --git a/UK-Abs/test-data/summary/full/uksc-2009-0127.txt b/UK-Abs/test-data/summary/full/uksc-2009-0127.txt
new file mode 100644
index 0000000000000000000000000000000000000000..9484ae60aee88a5237f3dbd3374813febcedf47e
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2009-0127.txt
@@ -0,0 +1,42 @@
+As originally enacted, s.33 and Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988 (the RTOA) provided that the maximum sentence that a Sheriff sitting summarily could impose in respect of the offence of driving while disqualified (s.103(1)(b) of the Road Traffic Act 1988 (the RTA)) was six months imprisonment or the statutory maximum fine or both.
+If the offence was prosecuted on indictment, the maximum sentence was 12 months imprisonment or a fine or both.
+Following a recommendation by a committee appointed to review the provision of summary justice in Scotland that the criminal jurisdiction of judges sitting summarily should be increased to a maximum of 12 months, the Criminal Proceedings etc (Reform)(Scotland) Act 2007 (the 2007 Act) was enacted by the Scottish Parliament.
+S.45 of that Act increased the maximum sentence that sheriffs sitting summarily could impose for the offence of driving while disqualified to 12 months imprisonment.
+On 17 December 2007 and 14 May 2008, respectively, in summary proceedings Sean Martin and Ross Miller were each sentenced by Sheriffs to periods in excess of six months imprisonment for driving while disqualified contrary to s.103(1)(b) of the RTA.
+They both sought to challenge their sentences on the basis that amending the relevant provisions of the 2007 Act were outside the legislative competence of the Scottish Parliament.
+The High Court of Justiciary (the HCJ) dismissed the appeals, holding that the increase in the sentencing power of Sheriffs sitting summarily by s.45 of the 2007 Act was within the Scottish Parliaments legislative competence.
+The HCJ gave the Appellants permission to appeal to the Supreme Court.
+The Supreme Court, by a majority of three to two (Lord Rodger and Lord Kerr dissenting), dismisses the appeals.
+The Court holds that the provision in question was within the Scottish Parliaments legislative competence.
+Lord Hope delivered the leading judgment on behalf of the majority.
+Majority Judgments The answer to the question raised by this case is to be found by applying the rules laid down in s 29 and Part 1 of Schedule 4 the Scotland Act 1998 which determine whether a provision of an Act is
+outside the Scottish Parliaments legislative competence.
+Three questions arise in this case: (1) whether the purpose of s.45 was to modify Scots criminal law as defined in s.126(5) of the Scotland Act; (2) if so, whether its purpose was to make the law apply consistently to reserved matters and otherwise; and (3) if (1) and (2) are answered in the affirmative, whether the rule that s.45 modified was special to a reserved matter within the meaning of para 2(3) of Schedule 4 [para [22]].
+The purpose of s.45 of the Criminal Proceedings etc (Reform)(Scotland) 2007 Act The available material conclusively demonstrates that the purpose of s.45 was to contribute to the reform of summary justice by reducing pressure on the higher courts.
+The jurisdiction of a Sheriff is defined by the penalties which he can impose and his powers in this respect are quintessentially matter of Scots criminal law.
+S.45 was directed to a rule of Scots criminal law, so it does not relate to a reserved matter within the meaning of s.29(2)(b) of the Scotland Act 1998 [para [31]].
+Was s.46 concerned to ensure that law applied consistently between reserved and non reserved matters? S.45 is one of a group of related provisions contained in the 2007 Act increasing the summary sentencing powers of Sheriffs in respect of a number of common law and statutory offences.
+If the 2007 Act had increased the sentencing power in respect of common law but not statutory offences the reform would have been incomplete and confusing.
+This problem would have been exacerbated if the reform had attempted to distinguish between statutory offences related to reserved matters and those which did not.
+The purpose of s.45 was to ensure that the law relating to the sentencing powers of Sheriffs was consistent as between offences concerning reserved matters and otherwise.
+Consequently, s.45 is not related to a reserved matter for the purpose of s.29(4) of the Scotland Act 1998 [paras [32] [33]].
+Is the sentencing jurisdiction of a Sheriff in relation to road traffic offences special to the Road Traffic Offenders Act 1988 and the Road Traffic Act 1988? In identifying the rule of law that is being modified for the purpose of the test established by para 2(3) of Schedule 4, regard may be had to the purpose of the legislative provision effecting the modification [para [34]].
+The key to the decision in this case lies in identifying the rule that is being modified.
+This is achieved by examining the purpose of the legislative provision which is under scrutiny [para [38] and [39]].
+S.33 and Part 1 of Schedule 2 to the RTOA and s.103(1)(b) of the RTA contain, in effect, two rules of Scots criminal law.
+Firstly, that the overall maximum sentence in respect of driving while disqualified is 12 months.
+Secondly, the route by which the maximum sentence can be imposed.
+The former provision is plainly a rule that is special to the RTOA and RTA and is a reserved matter that the Scottish Parliament has no power to modify.
+However, the latter is a rule concerning Scots criminal jurisdiction and procedure which is not reserved.
+The change in the law effected by s.45 does not alter the maximum period of imprisonment for the offence of driving while disqualified.
+It relates to the procedure which determines whether the sheriff has power to impose that sentence.
+The rule of Scots law being modified is the rule of Scots criminal procedure.
+This rule of procedure is not special to the RTOA or RTA [para [37]].
+Had it been necessary to address the point, para 3 of Schedule 4 (which provides that legislation having incidental or minor effects upon reserved matters shall be within competence) could not, contrary to the conclusion reached by the HCJ, render s.45 within the Scottish Parliaments legislative competence. s.45 constituted an important modification to a rule of Scots criminal procedure that could not be regarded as incidental or consequential [para [40]].
+Accordingly the court holds that s.45 is within the legislative competence of the Scottish Parliament.
+The appeals are dismissed and remitted to the HCJ for any further orders that may be required [para [43]].
+Dissenting Judgments Lord Rodger agreed that s.45 did not relate to a reserved matter [para [119]].
+But he would have held that the provision of the RTOA prescribing the maximum term of imprisonment for a summary conviction for driving while disqualified is special to a reserved matter, in the sense that the United Kingdom Parliament has chosen it specifically for that offence.
+Lord Rodger did not agree that the purpose of the modifying provision can be a relevant consideration in identifying the rule of Scots law that is being modified for the purpose of para 2(3) of Schedule 4 [para [143]].
+He also did not agree that the purpose of a provision which purports to modify a rule of Scots law can be used to determine whether that rule is special to a reserved matter [para [145]].
+Lord Kerr agreed with Lord Rodger.
diff --git a/UK-Abs/test-data/summary/full/uksc-2009-0129.txt b/UK-Abs/test-data/summary/full/uksc-2009-0129.txt
new file mode 100644
index 0000000000000000000000000000000000000000..9618b6c4027ab85e5654d3e834ecc326b350dd6e
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2009-0129.txt
@@ -0,0 +1,28 @@
+On 9 September 2004 the appellant, Steve Allison, was convicted after trial in the High Court at Glasgow of four contraventions of section 4(3)(b) of the Misuse of Drugs Act 1971.
+In effect, he was found guilty of being concerned in the supplying of cocaine and three other controlled drugs.
+The trial judge sentenced him to 8 years imprisonment.
+The appellant appealed against both his conviction and sentence.
+On 7 November 2008 the appeal court (Lord Osborne, Lady Paton and Lord Philip) refused his appeal against conviction, leaving his appeal against sentence to be heard on a date to be fixed.
+One of his grounds of appeal, which was first advanced in an additional Note of Appeal, related to the record of a police interview of a John Stronach.
+Mr Stronach had died before the trial and the Crown introduced the interview into evidence in accordance with the procedure in section 259(5) of the Criminal Procedure (Scotland) Act 1995.
+Neither before nor during the trial did the Crown disclose to the defence that Mr Stronach had a number of previous convictions and that there were outstanding charges against him.
+One of the outstanding cases was under the Misuse of Drugs Act and related to events covered by the trial and it was therefore known to the appellants legal advisers.
+The Crown disclosed the previous convictions and the other outstanding charges only while the appellants appeal was pending before the appeal court.
+This prompted the appellant to argue that the Crowns failure to disclose to the defence the existence of all the previous convictions and outstanding charges was incompatible with his article 6 Convention rights.
+As a result, the defence had been unable to prepare and conduct their defence properly and appellant did not receive a fair trial.
+When dismissing the appellants appeal, the appeal court accepted that the failure by the Crown to disclose Mr Stronachs previous convictions had been incompatible with the appellants article 6(1) rights.
+Having considered the circumstances of the case, however, the appeal court was not persuaded that the Crowns failure had resulted in an unfair trial and hence a miscarriage of justice.
+The appeal court drew a distinction between Mr Stronachs previous convictions and the outstanding charges against him.
+Because of the presumption of innocence, the appeal court did not consider that the existence of outstanding charges could be of importance in connection with the preparation of a defence or with any challenge that might be mounted to the credibility of a witness.
+The Supreme Court unanimously dismisses the appeal, with Lord Rodger delivering the leading judgment of the Court.
+The Court disagrees with the appeal courts view in relation to outstanding charges.
+It is, of course, trite that an individual charged with crime is presumed to be innocent until proven guilty.
+But that is not to say that he has to be treated in all respects as if he were an innocent person against whom no charge has been brought (para 9).
+The Privy Councils decision in Holland v HM Advocate 2005 1 SC (PC) 3, that the Crown should disclose outstanding charges of Crown witnesses of which they are aware, simply reflects the common sense position that just as in everyday life judges or jurors who have to assess the credibility of a witness may properly take into account not only the fact that the witness has been convicted of various offences, but also the fact that he has been charged with others.
+This approach merely reflects what appears to have been recognised as the proper practice in Scottish courts for more than 170 years (para 10).
+In the present case, the Crown does not deny that the outstanding charges against Mr Stronach might have weakened the Crown case by casting doubt on his character or credibility.
+Indeed the Crown accepts that, in accordance with Holland and HM Advocate v Murtagh 2009 SLT 1060, the failure to disclose the outstanding charges to the defence was incompatible with the appellants article 6(1) rights (para 14).
+The only live issue in the appeal, therefore, is the actual significance, in the whole circumstances of the case, of the Crowns failure to disclose the outstanding charges.
+Having considered the circumstances of the case against the appellant, the Court is not persuaded that, if defence counsel had been able to deploy Mr Stronachs outstanding charges as well as his previous convictions, this would have made any material difference (para 22).
+The Court is satisfied that there is no real possibility that the jury would have come to a different verdict on the charges against the appellant if they had been made aware, not only of Mr Stonachs previous convictions, but of the outstanding charges against him as well.
+There has therefore been no miscarriage of justice (para 23).
diff --git a/UK-Abs/test-data/summary/full/uksc-2009-0152.txt b/UK-Abs/test-data/summary/full/uksc-2009-0152.txt
new file mode 100644
index 0000000000000000000000000000000000000000..a733dafa8257c0bc4a7a4234d140c8c3c97f5e91
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2009-0152.txt
@@ -0,0 +1,41 @@
+The Respondent was vaccinated on 3 November 1992 with a vaccine (the Product) manufactured in France by a French company, now known as Aventis Pasteur SA (APSA).
+On 18 September 1992 APSA sent a consignment of the vaccine, including the Product, to its then wholly owned subsidiary, Aventis Pasteur MSD Ltd (APMSD), in England.
+APMSD acted as a United Kingdom distributor for APSAs products.
+APMSD received the consignment on 22 September 1992 and sold part of it, including the Product, on an unknown date.
+The Product was eventually used to vaccinate the Respondent.
+On 1 August 2001 the Respondent began proceedings under section 2 of the Consumer Protection Act 1987 (CPA) against APMSD, alleging that the Product was defective and had caused him brain damage.
+On 16 October 2002 the Respondent issued separate proceedings against APSA also under section 2 of the CPA.
+Relying on section 11(3) of the Limitation Act 1980 (the LA) and Article 11 of Council Directive 85/374/EEC of 25 July 1985 (the Directive), APSA defended this action on the basis that it had been raised more than ten years after APSA had put the Product into circulation, which APSA alleged was 22 September 1992 at the latest.
+Broadly, Article 11 provides that there is a ten year time limit for initiating proceedings against the producer (as defined in the Directive) of a product.
+Faced with this defence, the Respondent sought an order that APSA be substituted as a defendant in place of APMSD in the proceedings against APMSD, relying on section 35(5)(b) and (6)(a) of the LA.
+These provisions allow a new party to be substituted for a party whose name was given in any claim made in the original action in mistake.
+APSA contended that, in so far as English law permitted such substitution after the expiry of the time limit, it was inconsistent with Article 11.
+The High Court made a preliminary reference to the European Court of Justice (ECJ).
+So far as the power to substitute one producer for another as defendant was concerned, the House of Lords (to which the case eventually came) could not reach a unanimous view as to the effect of the ECJs judgment.
+The House of Lords therefore referred the question back to the ECJ.
+The answer returned by the ECJ is now clear: once ten years have passed since a producer put a product into circulation, that producer cannot be sued unless proceedings have been taken against it within the ten year period.
+The Respondent now accepts that he cannot use section 35 of the LA as a basis for substituting APSA for APMSD as the defendant in the present proceedings.
+The Respondent submits, however, that in its judgment the ECJ indicated a different basis on which he can actually make the desired substitution, namely, that in proceedings instituted within the ten year period against the wholly owned subsidiary of the producer, that producer can be substituted for that subsidiary if the domestic court finds that the putting into circulation of the product in question was,
+in fact, determined by that producer.
+The dispute between the parties therefore turns on the interpretation of that part of the ECJs judgment.
+The Supreme Court unanimously allowed the appeal and set aside paragraph 1 of the order of Teare J dated 20 October 2006 substituting APSA for APMSD in the present action.
+Lord Rodger gave the judgment of the Court.
+There is nothing to suggest that, when providing the additional guidance which is the subject of the dispute in the present case, the ECJ was intending to depart from the principled approach which it had formulated earlier in its judgment, namely, that Article 11 precluded national legislation being applied in a way which permitted a producer to be sued after the expiry of the ten year limitation period as defendant in proceedings brought within that period against another person (para 17).
+In venturing to give the additional guidance, the ECJ was following the lead of the Advocate General.
+The Advocate General had given some thought to how Article 11 should be applied in a case like the present, where APSA transferred the Product to a distributor, APMSD, which was its wholly owned subsidiary.
+In doing so, the Advocate General had referred back to the ECJs judgment on the first reference where the ECJ had held that a product is put into circulation when it is taken out of the manufacturing process operated by the producer and enters a marketing process in the form in which it is offered to the public in order to be used or consumed (paras 18 20).
+The ECJ, in its judgment following the first reference, had rejected an approach that was based on the formal legal relationship between the parent manufacturing producer and the subsidiary distributor.
+The national court had to look at all the links between the two entities and decide on that basis whether they were so close that, for the purposes of Article 11, the concept of the manufacturing producer (which would apply to APSA) really included the distributor (in this case, APMSD).
+In that event, even if the Product were transferred from one to the other, this would not mean that it had been taken out of the manufacturing process operated by the producer (para 22).
+The Advocate General made use of that part of the ECJs analysis from the first reference to show when a distribution subsidiary could be so closely involved with the parent producer that they could, in effect, be regarded as one for the purposes of Article 11 (so that suing the subsidiary would be tantamount to suing the parent).
+In concrete terms, if that were the position in this case, by suing APMSD within the ten year period, the Respondent would also have sued APSA within that period.
+So the Article 11 time bar would not bite and the Respondent could, if he wished, substitute APSA for APMSD as defendant in the present action (para 23).
+It is with this background in mind that the ECJ gave its additional guidance in the second reference.
+There is nothing to suggest that, in giving that guidance, it was intending to depart in any way from the analysis in its first reference (para 27).
+Certainly, to judge from the Advocate Generals analysis, the only way in which the principle that had just been laid down in relation to the substitution of APSA for APMSD could be maintained and yet APSA could be substituted for APMSD would be if, by suing APMSD, the Respondent had in effect sued APSA (para 28).
+The ECJ was therefore indicating, in giving its guidance, that the domestic court was to consider, in accordance with domestic rules of proof, whether the manufacturer, APSA, was in fact controlling APMSD and determining when it put the Product into circulation.
+The fact that APSA was a wholly owned subsidiary was simply one by no means decisive factor to be taken into
+account by the domestic court when assessing how closely the subsidiary was involved with its parents business as a producer.
+All the circumstances would have to be taken into account.
+If APSA was indeed in a position to decide when the Product was distributed, then APMSD would be integrated into the manufacturing process and would be so tightly controlled by APSA that proceedings against APMSD could properly be regarded as proceedings against the parent company, APSA.
+Hence, the manufacturing company could be substituted for the subsidiary (para 34).
diff --git a/UK-Abs/test-data/summary/full/uksc-2009-0167.txt b/UK-Abs/test-data/summary/full/uksc-2009-0167.txt
new file mode 100644
index 0000000000000000000000000000000000000000..d542dd5fdec78858544406d53cf60c80bd8d7fc7
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2009-0167.txt
@@ -0,0 +1,12 @@
+In order to be as of right, use must not be by force, nor stealth, nor by permission of the landowner [20, 67, 87 107, 115].
+The law in this area was also concerned with how the matter would have appeared to the reasonable landowner [36].
+There was great difficulty in seeing how a reasonable landowner would have concluded that the residents were not asserting a right to take recreation on the disputed land simply because they showed civility towards members of the golf club [36].
+The inspector misdirected himself as to the significance of perfectly
+natural behaviour by the residents [38, 96].
+The appeal would be allowed and the council should register the land [49, 78, 97 108, 116].
+The Respondent had argued that the rights of the residents after registration of a village green afforded them unqualified use of the land whatever the landowner wished to do with it.
+There would be a mismatch between what the residents would have done to gain the rights and what they would be in a position to do after the green had been registered.
+However, Lords Walker and Rodger considered that there was little danger in normal circumstances of registration leading to a sudden diversification or intensification of use by residents [47, 84]; the parties could co exist.
+Lords Hope and Kerr considered that there was a broad equivalence between the use relied on to establish the right and what the land might be used for after registration, although there may be some asymmetry as to the manner of its use pre and post registration [72, 115].
+Lord Brown considered that the locals could increase their use of the land but only in so far as it would not be incompatible with the owner continuing with his previous use [101].
+Lord Hope suggested that the forthcoming review of village greens by the Government should look at the consequences of registration as revealed by the developing case law as well as how the registration system itself is working [56].
diff --git a/UK-Abs/test-data/summary/full/uksc-2009-0180.txt b/UK-Abs/test-data/summary/full/uksc-2009-0180.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e8b111fd4ed431b8345c9854b9c14778c8347cff
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2009-0180.txt
@@ -0,0 +1,30 @@
+This appeal concerns the question of whether article 8 of the European Convention on Human Rights (article 8) requires UK courts to consider the proportionality of evicting an occupier from his home in claims for possession by local authorities and, if so, whether the demoted tenancy regime in the Housing Acts 1985 and 1996 (the 1985 Act and 1996 Act respectively) can properly be interpreted so as to comply with the requirements of article 8.
+Most residential occupiers of local authority properties are secure tenants under Part IV of the 1985 Act who cannot be evicted other than pursuant to the grounds in section 84 of the 1985 Act.
+The Anti Social Behaviour Act 2003 Act gave the courts power, however, to remove this security of tenure by making a demotion order.
+A demoted tenancy will last for a year and then revert to being a secure tenancy, unless within that year the landlord brings possession proceedings under section 143D of the 1996 Act effectively requesting a court to end the demoted tenancy.
+Section 143D(2) provides that the court must make an order for possession unless it thinks that the procedure under sections 143E and 143F has not been followed.
+Under sections 143E and 143F of the 1996 Act, before issuing possession proceedings against a demoted tenant, the landlord must serve a notice informing the tenant, inter alia, of its decisions (with reasons why) to seek possession and, if so requested by the tenant, must carry out a review of its decision.
+The Appellant, Cleveland Pinnock, is a demoted tenant.
+He contests a possession order made against him under section 143D.
+Mr Pinnock has lived in a property owned by the Respondent local authority, Manchester City Council (the Council), for over 30 years with his partner, Ms Walker, and, from time to time, with all or some of their five children.
+The demotion order was made on the basis of a number of incidents of serious anti social behaviour caused by all members of Mr Pinnocks family (other than Mr Pinnock himself) at or near the property.
+A day before the effective lapse of the demoted tenancy, the Council served a notice under section 143E seeking possession of the property and citing further incidents of anti social behaviour by Mr Pinnocks sons which had occurred after the demotion order.
+A review under section 143F effectively upheld the Councils possession notice.
+The Council then issued a claim for possession in the Manchester County Court.
+Following a two day hearing, the court granted an order for possession of the property.
+Mr Pinnock appealed to the Court of Appeal, who dismissed his appeal.
+Mr Pinnock then appealed to the Supreme Court.
+Mr Pinnocks main contention is that the possession order violates his right to respect for his home under article 8 as it is disproportionate.
+In view of the previous line of the House of Lords authorities, both the Manchester County Court and the Court of Appeal rejected Mr Pinnocks article 8 arguments on the basis that it was not open to them to review the Councils decision on the ground that it was disproportionate.
+Approaching the matter on a domestic law basis, both courts concluded that the Councils decision to seek possession was rational.
+In a judgment of the Court delivered by Lord Neuberger, the Supreme Court unanimously dismissed the appeal (but for different reasons from those of the County Court and the Court of Appeal).
+The Court identified four issues of increasing specificity facing the court in this appeal [21]: (1) whether the European Convention on Human Rights (the Convention) requires domestic courts to consider the proportionality of evicting a person from his home before making an order for possession; (2) if so, the general implications of this conclusion in practice for claims for possession; (3) the implications of this conclusion on the compatibility of the statutory demoted tenancy regime with the Convention; and (4) the application of conclusions (1) (3) above to the facts of Mr Pinnocks appeal.
+In light of the clear and constant line of jurisprudence of the European Court of Human Rights, the Court departed from the previous line of the House of Lords authorities and concluded that a court, which is asked by a local authority to make an order for possession of a persons home, must have the power to assess the proportionality of making the order and, in making that assessment, to resolve any factual disputes between the parties [49], [74].
+The Court emphasised that this conclusion relates to possession claims by local authorities and is not intended to bear on cases where the person seeking possession is a private landlord, which issue will have to be determined when it arises [50].
+The Court noted that the appeal involved a comparatively rare type of possession claim, a claim against a demoted tenant.
+Nevertheless, the Court was able to make certain general points [61] [64]: (1) article 8 only comes into play where a persons home is involved; (2) as a general rule, the proportionality of seeking possession will only need to be considered if the point is raised by the occupier concerned; (3) any article 8 defence should initially be considered summarily; (4) even where an outright order for possession is valid under domestic law, article 8 may justify granting an extended period for possession, suspending any possession order or refusing an order altogether; (5) the conclusion that the court must have the ability to consider the article 8 proportionality of making a possession order may require certain statutory and procedural provisions to be revisited; and (6) article 8 proportionality is more likely to be relevant in respect of occupiers who are vulnerable, due to either a mental or a physical disability.
+The Court went on to conclude that it was possible to read and give effect to section 143D(2) in a way that would permit the court to review the proportionality of a landlords decision to seek possession and, if necessary, to make its own assessment of facts in dispute.
+In particular, he concluded that, by virtue of section 7(1) of the Human Rights Act, County Court judges have the necessary jurisdiction to carry out the article 8 proportionality review [77] [80].
+It therefore followed that the demoted tenancy regime is compatible with the Convention [104].
+Given the above conclusions, the Court went on to consider whether it was proportionate to evict Mr Pinnock and his family from the property in light of their article 8 Convention rights.
+Having regard to the undisputed evidence of three serious offences committed by Mr Pinnocks sons in, or in the vicinity of, the property during the year when the demotion order was in force, the Court concluded that the possession order against Mr Pinnock was indeed proportionate and should be upheld [127] [132].
diff --git a/UK-Abs/test-data/summary/full/uksc-2010-0039.txt b/UK-Abs/test-data/summary/full/uksc-2010-0039.txt
new file mode 100644
index 0000000000000000000000000000000000000000..14e8bae1545ea79d037cdbae8997e4328db785ad
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2010-0039.txt
@@ -0,0 +1,26 @@
+This appeal concerns the scope of the exceptions to the principle that statements made in the course of without prejudice negotiations are not admissible in evidence (the without prejudice rule).
+The issue is whether it is permissible to refer to anything written or said in the course of the without prejudice negotiations to help interpret any agreement which results from the negotiations.
+The appellants, TMT Asia Limited and others, and the respondent, Oceanbulk Shipping & Trading SA, had entered into a number of forward freight agreements.
+When the appellants failed to pay a sum due under those agreements, the parties entered into settlement negotiations which were expressed to be without prejudice.
+The negotiations resulted in a written settlement agreement in respect of the sum due.
+The respondent brought a claim for damages against the appellants alleging breach of a clause of the settlement agreement.
+In their defence the appellants sought to rely on statements made during the without prejudice negotiations in support of their interpretation of the clause.
+The respondent contended that reliance on the statements was precluded by the without prejudice rule.
+The High Court held that the evidence was admissible for the purpose of determining how the terms of the settlement agreement were to be construed notwithstanding the without prejudice rule.
+The majority of the Court of Appeal (Longmore and Stanley Burnton LJJ), however, allowed Oceanbulks appeal, holding that the evidence was not admissible.
+The Supreme Court unanimously allowed the appeal.
+The substantive judgment was given by Lord Clarke, with whom the other Justices agreed.
+Lord Clarke observed that the without prejudice rule was now very much wider than it had been historically and extended to admissions made with a genuine intention to reach a settlement, including any admissions made to reach a settlement with a different party within the same litigation, and applied whether or not settlement was reached with that party: [19] [29].
+The without prejudice rule was an important rule that founded upon the public policy of encouraging litigants to settle their differences, as well as the express or implied agreement of the parties themselves that communications in the course of their negotiations should not be admissible in evidence: [24].
+Because of the importance of the without prejudice rule, its boundaries should not be lightly eroded.
+Nevertheless, the authorities
+clearly established that resort might be had to without prejudice material by way of exception to the rule where the justice of the case required it: [30] [33].
+The central issue in the present case was whether one of the exceptions to the rule should be that facts which (a) are communicated between the parties in the course of without prejudice negotiations, (b) form part of the factual matrix or surrounding circumstances and (c) would, but for the without prejudice rule, be admissible as an aid to construction of a settlement agreement which results from the negotiations should be admissible in evidence by way of exception to the rule (the interpretation exception): [35].
+Lord Clarke reached the conclusion that justice clearly demanded that the interpretation exception should be recognised as an exception to the without prejudice rule for two principal reasons: [36] and [46].
+Without recourse to the without prejudice material the agreement could not be properly construed in accordance with the well recognised principles identified in Investors Compensations Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 and Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] AC 1101 that objective facts which emerge during negotiations are admissible as part of the factual matrix in order to assist courts to interpret an agreement in accordance with the parties true intentions.
+The process of interpretation of a settlement agreement should in principle be the same, whether negotiations are without prejudice or not, and permitting recourse to the without prejudice material for this purpose was the only way in which the modern principles of contractual interpretation could be properly respected: [36] [41].
+Any other approach would introduce an unprincipled distinction between this class of case and two other exceptions to the without prejudice rule.
+The first such exception, which has already been accepted, is that resort might be had to without prejudice material in order to resolve the issue whether negotiations had resulted in a concluded compromise agreement.
+The second such exception (which has not yet been accepted) followed from the first, namely that if a party could have resort to without prejudice material to see whether negotiations had resulted in a concluded settlement agreement, then a party could also rely on such material in order to show that a settlement agreement should be rectified.
+There was no sensible basis on a which a line could be drawn between admitting without prejudice communications in order to consider a plea of rectification and admitting them as part of the factual matrix relevant to the true construction of a settlement agreement: [42] [45].
+Lord Clarke stressed that nothing in the judgment was intended to underplay the importance of the without prejudice rule or to encourage the admission of evidence of pre contractual negotiations beyond that which is admissible in order to explain the factual matrix or surrounding circumstances: [46].
diff --git a/UK-Abs/test-data/summary/full/uksc-2010-0106.txt b/UK-Abs/test-data/summary/full/uksc-2010-0106.txt
new file mode 100644
index 0000000000000000000000000000000000000000..cecf9d2afd292343939633061d9654f308a4d622
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2010-0106.txt
@@ -0,0 +1,47 @@
+This appeal concerns the permissibility of a procedure whereby a claimant in employment tribunal proceedings may be excluded along with his representatives from certain aspects of those proceedings on grounds of national security.
+In particular the question arises as to whether such a procedure, known as a closed material procedure, is compatible with European Union law and the European Convention on Human Rights.
+Mr Tariq was employed as an immigration officer with the Home Office until 2006 when he was suspended and his security clearance withdrawn.
+The background for these decisions was the arrest of Mr Tariqs brother and cousin during an investigation into a suspected plot to mount a terrorist attack on transatlantic flights.
+Mr Tariqs cousin was convicted in 2008 of various offences in relation to that plot.
+No information suggested that Mr Tariq had himself been involved in any terrorism plot.
+Mr Tariq commenced proceedings in the Employment Tribunal claiming direct and indirect discrimination on grounds of race and religion.
+He alleged that the Home Office had relied on stereotypical assumptions about him, Muslims and individuals of Pakistani origin such as susceptibility to undue influence and that the Home Office had indirectly discriminatory policies and procedures.
+The Home Office denied this and stated that its decisions were based on Mr Tariqs association with individuals suspected of involvement in terrorist activities and the risk of their attempting to exert influence on him to abuse his position.
+Section 10(6) of the Employment Tribunals Act 1996 provides that the Secretary of State may make regulations that enable a tribunal to adopt a closed material procedure if it considers this expedient in the interests of national security.
+Rule 54(2) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (the Regulations) provides for the adoption of a closed material procedure if the tribunal so orders.
+Schedule 2 provides for the use of special advocates, whose role is to represent a claimants interests so far as possible in relation to the aspects closed to him and his representatives.
+The Employment Tribunal made an order for a closed material procedure, directing that Mr Tariq and his representatives should be excluded from the proceedings when closed evidence or documents were being considered.
+Mr Tariq appealed the order to the Employment Appeal Tribunal.
+The appeal was dismissed and a further appeal was dismissed by the Court of Appeal.
+The Court of Appeal, however, declared that Article 6 of the European Convention on Human Rights required Mr Tariq to be provided with the allegations being made against him in sufficient detail to enable him to give instructions to his legal team so that those allegations can be challenged effectively.
+This requirement is known as gisting.
+The Home Office appealed to the Supreme Court against the declaration and Mr Tariq cross appealed against the conclusion that a closed material procedure was permissible.
+The Supreme Court by a majority of 8 1 allows the Home Offices appeal and sets aside the declaration made by the Court of Appeal requiring the provision of a gist.
+Lord Kerr dissents.
+The Supreme Court unanimously dismisses Mr Tariqs cross appeal, holding that a closed material procedure is compatible with Article 6 of the European Convention on Human Rights and EU Law.
+Mr Tariqs Cross Appeal The issue in the cross appeal was whether the provisions in the Regulations providing for a closed material procedure were contrary to EU law or the European Convention on Human Rights.
+It is a basic principle of EU law that national law should provide effective legal protection of EU law rights.
+Those rights include the right not to be discriminated against on grounds of race or religion.
+As to whether the closed material procedure provided effective legal protection, the case law of the European Court of Justice is clear that EU law will look for guidance on the subject in the case law of the European Court of Human Rights.
+That Court has established in a line of cases culminating in Kennedy v UK that the demands of national security may necessitate a system for determining complaints under which a claimant is, for reasons of national security, unable to know the secret material by reference to which his complaint is determined.
+The tests are whether the system is necessary and whether it contains sufficient safeguards.
+On the facts, both were satisfied.
+The system was necessary because security vetting is a highly sensitive area in which integrity of sources of information and the means of obtaining it must be protected.
+The alternatives of the Home Office routinely having to pay unmeritorious claims or the courts refusing to hear claims at all are not possibilities that the law should readily contemplate.
+The rule of law must, so far as possible, stand for the objective resolution of civil disputes on their merits by a court which has before it material enabling it to do so.
+The system contained sufficient safeguards in the form of special advocates, who can usefully protect the claimants interests.
+For these reasons the use of the closed material procedure in this case was lawful and the cross appeal must be dismissed.
+The Home Offices Appeal The question in the appeal was whether there is an absolute requirement that a claimant should be able to see the allegations against him in sufficient detail to give instructions to his legal team to enable the allegations to be challenged effectively.
+Mr Tariq argued that the European Convention on Human Rights contained such a principle.
+The Supreme Court, however, held that the line of cases culminating in Kennedy v UK recognised that there was no absolute requirement.
+Article 6 of the European Convention on Human Rights provides the right to a fair trial.
+The European Court of Human Rights has held that where the liberty of the subject is involved, Article 6 requires the provision of a gist as described by the Court of Appeal.
+In cases such as the present not involving the liberty of the subject, however, the question is whether the use of the closed material procedure will impair the very essence of the right to a fair trial.
+That cannot be said to be so in this case, as Mr Tariqs claim will be determined by an independent and impartial tribunal and the disadvantages that the procedure gives rise to will as far as possible be minimised.
+The appeal was therefore allowed.
+Lord Kerr dissented.
+He held, first, that the withholding of information from a claimant which is then deployed to defeat his claim is a breach of his fundamental common law right to a fair trial.
+The removal of that right can only be achieved by legislation framed in unambiguous language.
+Secondly, such withholding also constitutes a breach of a claimants Article 6 right to a fair trial.
+Kennedy v UK was an anomaly.
+Lord Kerr would therefore have dismissed the appeal.
diff --git a/UK-Abs/test-data/summary/full/uksc-2010-0127.txt b/UK-Abs/test-data/summary/full/uksc-2010-0127.txt
new file mode 100644
index 0000000000000000000000000000000000000000..948b7a18ccd0fcb384f1a3e4c5dcaa026193538a
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2010-0127.txt
@@ -0,0 +1,45 @@
+This case concerns the correct construction of refund guarantees issued by the Respondent bank in relation to six shipbuilding contracts.
+In May 2007 the first to sixth claimants (the Buyers) entered into shipbuilding contracts (the Contracts) with Jinse Shipbuilding Co Ltd (the Builder).
+Under the Contracts the Builder agreed to build and sell one vessel to each of the six Buyers.
+The price of each vessel was US$33.3m, which was to be paid in five equal instalments.
+Article X.8 of the Contracts stated that payment of the first instalment was conditional upon the Builder providing the Buyer with a satisfactory refund guarantee from a first class Korean bank.
+Article X.5 gave the Buyer a right to a full refund in the event that the Buyer exercised their right to reject the vessel or to terminate, cancel or rescind the Contract.
+Article XII.3 of the Contracts then gave the Buyers further rights to repayment of instalments paid in the event of a default by the Builder.
+In particular, Article XII.3 stated that if the Builder became subject to certain insolvency proceedings, the Buyer may by notice in writing to the Builder require the Builder to refund immediately to the Buyer the full amount of all sums paid by the Buyer to the Builder.
+As envisaged by Article X.8 of the Contracts, in August 2007 the Respondent bank issued each of the Buyers with materially identical Advanced Payment Bonds (the Bonds).
+Paragraph 2 of the Bonds stated that, under the terms of the Buyers Contract with the Builder, the Buyer was entitled to a refund in the event that they exercised their right to reject the vessel or to terminate, cancel or rescind the Contract.
+The Respondents guarantee obligation was then set out in paragraph 3, which stated that the Respondent promised to pay the Buyer all such sums due to you under the Contract.
+The first line of paragraph 3 explained that this promise was given [i]n consideration of your agreement to make the pre delivery instalments under the Contract.
+Paragraph 4 stated that payment would be made upon receipt of a written demand from the Buyer stating that the Builder had failed to fulfil the terms of the Contract and specifying the amount claimed.
+Paragraph 5(v) stated that the Respondents liability under the Bonds would not be affected by any insolvency, re organisation or dissolution of the Builder.
+Each of the Buyers duly paid the first instalment of US$6.66m due under the Contracts.
+One of the Buyers also subsequently paid a second instalment in the same amount.
+In 2008 the Builder experienced financial difficulties and in January 2009 it became subject to a formal debt workout procedure under the Korean Corporate Restructuring Promotion Law 2007.
+In April 2009 the Buyers wrote to the Respondent demanding repayment under the Bonds of the instalments that had been paid to the Builder under the Contracts.
+The Respondent rejected the Buyers demands on the basis that, on the true construction of the Bonds, the Respondent had not undertaken to guarantee payment of refunds arising under Article XII.3 of the Contracts.
+In the High Court the judge ruled in favour of the Buyers construction of the Bonds and entered summary judgment against the Respondent.
+On appeal, the majority of the Court of Appeal (Thorpe
+and Patten LJJ) overturned the High Courts ruling and entered summary judgment in favour of the Respondent.
+Sir Simon Tuckey gave a dissenting judgment in which he explained his reasons for preferring the High Court judges construction of the Bonds.
+The Supreme Court granted the Appellants leave to appeal to the Supreme Court.
+The Supreme Court unanimously allows the appeal and restores the order of the High Court.
+Lord Clarke gives the sole judgment, with which Lords Phillips, Mance, Kerr and Wilson agree.
+The issue at the heart of this appeal is whether, on the true construction of paragraph 3 of the Bonds, the Buyers are entitled to payment from the Respondent in respect of refunds that they are entitled to from the Builder under Article XII.3 of the Contracts [6].
+It was common ground that everything depends upon the true construction of the Bonds and that the terms and meaning of the Contracts are only relevant to the extent that they inform the true construction of the Bonds [7],[10].
+Under paragraph 3 of the Bonds the Respondent promised to pay the Buyers all such sums due to you under the Contract.
+The question is therefore what was meant by such sums.
+On this point, neither Article X.5 nor Article X.8 was intended to set out all the circumstances in which the refund guarantee should operate [37].
+The Buyers said that the expression covered the pre delivery instalments referred to in the first line of paragraph 3 in other words, the phrase referred to all pre delivery instalments paid by the Buyers.
+The Respondent, on the other hand, contended that the expression such sums was limited to the sums that were referred to in paragraph 2 of the Bonds.
+Since paragraph 2 did not include any reference to the Buyers rights under Article XII.3 of the Contracts to repayment upon the Builders insolvency, the Respondent was under no obligation to make any payment to the Buyers in the present case.
+On the face of it, the correct approach to the construction of the Bonds is not in dispute.
+The cases show that the ultimate aim of interpreting a provision in a contract, especially a commercial contract, is to determine what the parties meant by the language used.
+This process involves ascertaining what a reasonable person would have understood the parties to have meant.
+A reasonable person, for these purposes, is one who has all the background knowledge that would reasonably have been available to the parties in the situation in which they were at the time of the contract [14].
+The issue between the parties is the role to be played by considerations of business common sense in determining what the parties meant [15].
+Where the parties have used unambiguous language, the court must apply it [23].
+However if there are two possible constructions, it is generally appropriate to adopt the interpretation that is most consistent with business common sense and to reject the other [21], [29].
+It is not necessary to conclude that a particular construction would produce an absurd or irrational result before proceeding to have regard to the commercial purpose of the agreement [43].
+In the present case, since the language of paragraph 3 is capable of two meanings, it is appropriate for the court to have regard to considerations of commercial commonsense [40].
+Although the Buyers are unable to provide any very good reason why paragraph 2 was included in the Bonds [34], a construction of paragraph 3 which excluded the Builders insolvency from the situations that trigger the Respondents obligation to refund advance payments made by the Buyers would make no commercial sense [41].
+Accordingly, of the two arguable constructions of paragraph 3 of the Bonds, the Buyers construction is to be preferred because it is consistent with the commercial purpose of the Bonds in a way that the Respondents construction is not [45].
diff --git a/UK-Abs/test-data/summary/full/uksc-2010-0128.txt b/UK-Abs/test-data/summary/full/uksc-2010-0128.txt
new file mode 100644
index 0000000000000000000000000000000000000000..c9dd172e775ebc622a1dd479c1f65b2998e4faa7
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2010-0128.txt
@@ -0,0 +1,44 @@
+This is a case about the rights of unmarried fathers to take part in childrens hearings under Part II of the Children (Scotland) Act 1995.
+It raises two distinct issues.
+The first concerns the kind of order made in the sheriff court which would be effective to give a father the right to take part in the childrens hearing.
+The second concerns the compatibility of the statutory scheme for participation in the childrens hearing with the rights of the father (and indeed the child) under the European Convention on Human Rights.
+The appellant K is an unmarried father.
+He formed a relationship with JR.
+They cohabited and had a child, L, born in May 2002, whose birth they registered together.
+Their relationship subsequently broke down.
+After the separation, K continued to have contact with L, and was involved with her hospital appointments until at least September 2003.
+In about May 2004, K raised proceedings in the sheriff court seeking full parental responsibilities and parental rights and a contact order.
+An interim order for weekly overnight stays was made.
+In December 2005, JR alleged that K had abused L. In March 2006, the local authoritys social work services department referred the case to the Principal Reporter on the ground that L was in need of compulsory measures of supervision.
+There were childrens hearings in June and July and in August the sheriff deemed the grounds of referral proved and remitted the case to the childrens hearing.
+K was not entitled to attend any of these hearings as he was not a relevant person within the meaning of section 93(2)(b) of the 1995 Act.
+At a child welfare hearing on 27 October 2006, the sheriff made an order granting K parental rights and responsibilities to the extent that he becomes a relevant person in the childrens referral.
+Thereafter K attended the childrens hearings.
+In August 2007, the hearing imposed a condition of no contact between K and L.
+In January 2009 K appealed against the continuation of this condition.
+The Principal Reporter then challenged the sheriffs order in the Court of Session on the ground that it was incompetent.
+On 27 March 2009, the Lord Ordinary suspended the sheriffs order of 27 October 2006.
+On 21 January 2010 the First Division refused Ks appeal and his application for a declaration of incompatibility with the European Convention on Human Rights.
+Section 11(1) of the 1995 Act provides that the sheriff court may make an order in relation to parental responsibilities and parental rights.
+Subsection (7) provides that in considering whether to make an order under subsection (1), the court shall regard the welfare of the child as its paramount consideration, shall not make an order unless it would be better for the child to do so, and, where practicable, shall ascertain the childs views.
+These considerations are referred to as the overarching principles.
+Section 93(2)(b) defines relevant person as a person (including a parent) with parental responsibilities or parental rights or who appears to be a person who ordinarily has charge of, or control over, the child.
+The Supreme Court unanimously allows the appeal.
+Lord Hope and Lady Hale give the judgment of the Court.
+The Court holds that the sheriffs order of 27 October 2006 was not incompetent and so recalls the First Divisions interlocutor and dismisses the petition.
+The Court declares that section 93(2)(b)(c) of the Children (Scotland) Act 1995 should be read so as to include the words or who appears to have established family life with the child with which the decision of a childrens hearing may interfere.
+The Court makes a finding that K is a relevant person within the meaning of section 93(2)(b)(c) as so read.
+The Court notes that the case raises a fundamental issue about fairness.
+Neither in July nor in August 2006 did K have the opportunity to refute the allegations in the grounds of referral.
+This is contrary to one of the fundamental rules of natural justice, the right to be heard. [14] The order of 27 October 2006 was competently pronounced.
+The order was one which the sheriff had power to grant under section 11(1) of the 1995 Act.
+The defect in the order is one of specification, not of substance.
+While it would have been better if the sheriff had expressly referred to the relevant provisions of the 1995 Act and to the relevant parental responsibilities and rights, and to the fact that participation in the childrens hearing set the limits for the exercise of those responsibilities and rights, the order was not incompetent because he did not do so. [24] [28] There was not a sound basis for the First Divisions view that the sheriff failed to apply the overarching principles.
+Such evidence as there is suggests that the very experienced sheriff had these principles in mind throughout the hearing.
+In any event, failure to apply the correct principles when making an order, while it may be a ground of appeal, would not normally render the order incompetent. [31] A parent (or other person) whose family life with the child is at risk in the proceedings must be afforded a proper opportunity to take part in the decision making process.
+As currently constituted the childrens hearing system violated the article 8 rights of K (and indeed of L) and risks violating the rights of others in the same situation.
+The childrens hearing has to have the best and most accurate information that it can in order to make the best decisions about the child.
+The only justification advanced for excluding a father unless and until he secures a parental responsibilities and parental rights order from the sheriff court is to ensure that only persons who can make a meaningful contribution to the hearing are present.
+However, it is difficult to see how excluding a father such as K can possibly be proportionate to that aim.
+All fathers registered since 4 May 2006 are entitled to be present.
+Further, when the alleged grounds for referring the child consist almost entirely of allegations against the father, it cannot possibly be legitimate to exclude him for the purpose of restricting the numbers. [39] [48] The incompatibility with Article 8 can be cured by inserting the words or who appears to have established family life with the child with which the decision of a childrens hearing may interfere into section 93(2)(b)(c) of the 1995 Act. [69]
diff --git a/UK-Abs/test-data/summary/full/uksc-2010-0154.txt b/UK-Abs/test-data/summary/full/uksc-2010-0154.txt
new file mode 100644
index 0000000000000000000000000000000000000000..8d79d5544bf8d4b88490e7327ea3b6aa5df19332
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2010-0154.txt
@@ -0,0 +1,48 @@
+The issue in this case is whether an employment tribunal has jurisdiction in relation to individuals who are resident in Great Britain and employed by a British company but who travel to and from home to work overseas.
+The Appellant is a UK company based near Aberdeen, which is one of about 70 subsidiary or associated companies of Halliburton Inc., a US corporation.
+It supplies tools, services and personnel to the oil industry.
+Mr Ravat lives in Preston, Lancashire, and is a British citizen.
+He was employed by the Appellant from April 1990 until May 2006, when he was made redundant.
+He complains that he was unfairly dismissed.
+At the time of his dismissal he was working in Libya.
+The question is whether the employment tribunal has jurisdiction to consider his complaint.
+Mr Ravats employment documentation described him as a UK commuter.
+He worked for 28 consecutive days in Libya, followed by 28 consecutive days off at home in Preston.
+He was job sharing, working back to back with another employee.
+Some of the Appellants employees were accorded expatriate status, but that was not done in Mr Ravats case because he did not live abroad full time.
+His travel costs were paid for by the Appellant.
+The work that Mr Ravat carried out in Libya was for the benefit of a German associated company of Halliburton Inc. His salary was paid in Sterling to a UK bank account, and he paid income tax and national insurance on the PAYE basis.
+An employment tribunal sitting in Aberdeen held that it did have jurisdiction.
+That decision was set aside by the Employment Appeal Tribunal.
+Mr Ravat appealed, and the Inner House of the Court of Session allowed the appeal.
+The Appellant now appeals to the Supreme Court.
+The Supreme Court unanimously dismisses the appeal and remits the case to the employment tribunal to deal with the merits of the respondents claim that he was dismissed unfairly.
+The judgment is given by Lord Hope.
+Section 94(1) of the Employment Rights Act 1996 sets out the right of the employee not to be unfairly dismissed and section 230(1) sets out the definition of employee.
+They do not contain any geographical limitation, nor is any such limitation to be found anywhere else in the Act [3].
+Yet it is plain that some limitation must be implied: section 94(1) cannot apply to all employment anywhere in the world [4].
+In Lawson v Serco Ltd [2006] UKHL 3, Lord Hoffmann identified three categories of employees who would fall within the jurisdiction of the employment tribunal: employees working in Great Britain; peripatetic employees where the employee is based in Great Britain; and, in some exceptional cases, expatriate employees [9 12].
+But it would be difficult to fit Mr Ravats case into any of Lord
+Hoffmanns categories [13].
+The problem that it raises must be resolved by applying the relevant guiding principles to the facts described in the employment tribunals judgment [25].
+The question in each case is whether section 94(1) applied to the particular case, notwithstanding its foreign elements.
+It is not for the courts to lay down a series of fixed rules where Parliament has decided not to do so.
+Their role is rather to give effect to what Parliament may reasonably be taken to have intended by identifying and applying the relevant principles [26].
+The starting point is that the employment relationship must have a stronger connection with Great Britain than with the foreign country where the employee works.
+The general rule is that the place of employment is decisive, but that is not an absolute rule [27].
+In some cases, an exception can be made because the connection between Great Britain and the employment relationship is sufficiently strong to enable it to be presumed that, although they were working abroad, Parliament must have intended that section 94(1) should apply to them.
+It will always be a question of fact and degree as to whether the connection is sufficiently strong to overcome the general rule that the place of employment is decisive.
+The case of those who are truly expatriate because they not only work but also live outside Great Britain requires an especially strong connection with Great Britain and British employment law before an exception can be made for them [28].
+But it does not follow that the connection that must be shown in the case of those who are not truly expatriate, because they are not both working and living overseas, must achieve the high standard that would enable one to say that their case was exceptional.
+In this case, the fact that the commuter has his home in Great Britain, with all the consequences that flow from this for the terms and conditions of his employment, makes the burden in his case of showing that there was a sufficient connection less onerous.
+The question of law is whether section 94(1) applies to this particular employment.
+The question of fact is whether the connection between the circumstances of the employment and Great Britain and with British employment law was sufficiently strong to enable it to be said that it would be appropriate for the employee to have a claim for unfair dismissal in Great Britain [29].
+In this case, Mr Ravat was working in Libya, for a different Halliburton associated company which was based in Germany, and the decision to dismiss him was taken by an individual based in Cairo.
+But all the other factors point towards Great Britain as the place with which, in comparison with any other, Mr Ravats employment had the closer connection [30].
+The Appellants business was based in Great Britain.
+It treated Mr Ravat as a commuter, which meant that all the benefits for which he would have been eligible had he been working in Great Britain were preserved for him [31].
+Although it was not open to the parties to contract in to the jurisdiction of the employment tribunal, factors such as any assurance that the employer may have given to the employee regarding the applicability of UK employment law, and the way the employment relationship is then handled in practice must play a part in the overall assessment [32].
+On being assigned to Libya, Mr Ravat was assured that UK employment law would apply to his contract.
+The documentation he received reflected this, and in fact matters relating to the termination of his employment were handled by the Appellants human resources department in Aberdeen [33 34].
+As the question is ultimately one of degree, considerable respect must be given to the decision of the employment tribunal as the primary fact finder.
+In the circumstances of this case, section 94(1) must be interpreted as applying to Mr Ravats employment, and the employment tribunal therefore has jurisdiction to hear his claim [35].
diff --git a/UK-Abs/test-data/summary/full/uksc-2010-0189.txt b/UK-Abs/test-data/summary/full/uksc-2010-0189.txt
new file mode 100644
index 0000000000000000000000000000000000000000..302cf30504cdfec1b17734b59b67b26286ffba77
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2010-0189.txt
@@ -0,0 +1,33 @@
+Wolverhampton City Council (the Council), in its capacity as the local planning authority, granted planning permission for four blocks of student accommodation in proximity to a site used for storage of liquefied petroleum gas (LPG).
+Three of the four blocks of student accommodation had been completed, but work on the fourth had not commenced.
+Concerned that the LPG storage facility in the vicinity constituted a danger to human life, the Health and Safety Executive (the HSE), a statutory, non departmental public body, applied for an order to revoke or modify the planning permission under section 97 of the Town and Country Planning Act 1990 (the Act).
+In refusing the application, the Council took into account its liability to pay compensation under section 107 of the Act were it to revoke planning permission in respect of all four blocks, but it did not consider whether the application should be granted only in respect of the fourth block.
+The HSE brought judicial review proceedings challenging, among other things, the Councils decision not to revoke or modify the planning permission.
+The High Court refused that part of the claim.
+The Court of Appeal allowed the HSEs appeal, holding that it was irrational for the Council to fail to consider whether to exercise its powers under section 97 so as to prevent the construction of the fourth block alone.
+The Councils decision was therefore unlawful and it was ordered to reconsider the matter.
+However, the Court of Appeal held by a majority (Pill LJ dissenting) that a decision under section 97 of the Act was to be taken not in isolation but within the statutory framework of the Act which imposed a liability to pay compensation if an order was made under the section.
+Accordingly, the Council, when reconsidering the matter, would be entitled to take into account its liability to pay compensation under section 107 of the Act.
+The HSE appealed to the Supreme Court against this part of the decision of the Court of Appeal: the issue being whether it is always open to a local planning authority, in considering under section 97 of the Act whether it appears to be expedient to revoke or modify a permission to develop land, to have regard to the compensation that it would or might have to pay under section 107.
+The Supreme Court unanimously dismisses the HSEs appeal.
+Lord Carnwath gives the leading judgment of the Court with which all other Justices agree.
+In simple terms, the question is whether a public authority, when deciding whether to exercise a discretionary power to achieve a public objective, is entitled to take into account the cost to the public of so doing.
+As custodian of public funds, the authority not only may, but generally must, have regard to the cost to the public of its actions, at least to the extent of considering in any case whether the cost is proportionate to the aim to be achieved, and taking account of any more economic ways of achieving the same objective [24] [25].
+Section 97 of the Act requires no different approach.
+The section requires the authority to satisfy itself that revocation is expedient, and in so doing to have regard to the development plan and other material considerations.
+The development plan throws no light on the issue in this case.
+The word expedient implies no more than that the action should be appropriate in all the circumstances.
+Where one of those circumstances is a potential liability for compensation, it is hard to see why it should be excluded.
+Material in ordinary language is the same as relevant.
+Where the exercise of the power, in the manner envisaged by the statute, will have both planning and financial consequences, there is no obvious reason to treat either as irrelevant [26].
+Under section 97, a planning authority has a discretion whether to act, and, if so, how.
+If it does decide to act, it must bear the financial consequences.
+Section 97 creates a specific statutory power to buy back a permission previously granted.
+Cost, or value for money, is naturally relevant to the purchasers consideration [51].
+Sufficient consistency is given to the expression material considerations if it is treated as it is elsewhere in administrative law: that is, as meaning considerations material (or relevant) to the exercise of the particular power, in its statutory context and for the purposes for which it was granted.
+So read, there is no inconsistency between section 97 and other sections such as section 70 [49] [50].
+Furthermore, in exercising its choice not to act under section 97, or in choosing between that and other means of achieving its planning objective, the authority is to be guided by what is expedient.
+No principle of consistency requires that process to be confined to planning considerations, or to exclude cost [52].
+The contrary view of Richards J in Alnwick DC v Secretary of State (2000) 79 P & CR 130 was wrong, although the actual decision may be supportable on its own facts [54].
+Possible difficulty in assessing precisely the likely level of compensation is no reason for not conducting the exercise, still less for leaving cost considerations out of account altogether [55] [56].
+Accordingly, for reasons which essentially follow those of the majority of the Court of Appeal, the HSEs appeal is dismissed [57].
diff --git a/UK-Abs/test-data/summary/full/uksc-2010-0201.txt b/UK-Abs/test-data/summary/full/uksc-2010-0201.txt
new file mode 100644
index 0000000000000000000000000000000000000000..96622f56cba2c56cd3330fa624ef598b0ae7f4e7
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2010-0201.txt
@@ -0,0 +1,47 @@
+This case concerns the scope for justifying direct discrimination on the ground of age and in particular a mandatory retirement age contained within a partnership agreement.
+The case was heard alongside Homer (Appellant) v Chief Constable of West Yorkshire Police (Respondent) [2012] UKSC 15 which concerned the scope of indirect discrimination on the ground of age.
+Mr Seldon joined the Respondent law firm in 1971 and was made an equity partner in 1972.
+In 2005 he and the other partners in the firm agreed and adopted a partnership deed which (like earlier deeds) provided that, subject to the partners agreement to the contrary, partners who attain the age of 65 had to retire from the firm by the end of the following December.
+Mr Seldon reached the age of 65 on 15 January 2006.
+Realising that he would need to continue working beyond this point, he asked the other partners to extend his tenure.
+The proposals were rejected on the basis of there being no sufficient business need.
+The partners did however offer Mr Seldon an ex gratia payment of 30,000.
+The Employment Equality (Age) Regulations 2006, SI 2006/1031 (the Age Regulations) came into force in October 2006.
+Mr Seldon informed the partners that he was considering his rights under the Age Regulations (which have since been repealed but substantially re enacted under the Equality Act 2010).
+The partners then withdrew their offer of an ex gratia payment.
+Mr Seldon ceased to be a partner in the firm on 31 December 2006.
+He issued proceedings in March 2007 alleging, under the Age Regulations, that his forced retirement was an act of direct age discrimination and that the withdrawal of the offer of an ex gratia payment was an act of victimisation.
+Regulation 17 of the Age Regulations provides that it is unlawful for a firm to discriminate against partners by, amongst other things, expelling them from that position.
+The definition of discrimination is contained in regulation 3 which provides that a person (A) discriminates against another person (B) if on grounds of Bs age, A treats B less favourably than he treats or would treat other persons and A cannot show the treatment to be a proportionate means of achieving a legitimate aim.
+There was no dispute that the mandatory retirement age treated Mr Seldon less favourably than other partners and that this was necessarily on account of his age.
+The key issue was whether that treatment could be justified.
+The Age Regulations were intended to transpose Council Directive 2000/78/EC on equal treatment in occupation and employment into UK law.
+Article 2(1)(a) of the Directive states that direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation.
+Article 2(1)(b) provides that indirect discrimination occurs where an apparently neutral provision, criterion or practice puts people of a particular age at a particular disadvantage, unless the provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
+In relation to age discrimination, however, article 6(1) allows member states to provide that differences of treatment on grounds of age shall not constitute discrimination if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.
+Regulation 3 does not distinguish between direct and indirect discrimination for the purpose of justification.
+The Employment Tribunal accepted that the retirement policy pursued three legitimate aims: (i) giving
+associates an opportunity of partnership within a reasonable time, and thereby an incentive to remain with the firm; (ii) facilitating workforce planning by knowing when vacancies were to be expected; (iii) limiting the need to expel underperforming partners, thus contributing to a congenial and supportive culture within the firm.
+The Tribunal found that the mandatory retirement age of 65 was a proportionate means of achieving the three legitimate aims and therefore rejected the discrimination claim (but upheld the victimisation claim).
+The Employment Appeal Tribunal held that the Employment Tribunal had failed to consider whether the aims could have been met by a retirement age other than 65 and remitted the case on that point alone.
+The Court of Appeal dismissed Mr Seldons appeal.
+He then appealed to the Supreme Court asserting that: first, it is wrong to elide the tests for justification in direct and indirect discrimination cases and that the aims pursued by the firm were not legitimate in the context of the former; and secondly, that the treatment had to be justified not only in respect of the firm generally but in its particular application to Mr Seldon.
+The Supreme Court unanimously dismisses the appeal and remits the case to the Employment Tribunal on the outstanding issue.
+Lady Hale gives the lead judgment with which the other members of the Court agree.
+Lord Hope adds some further comments.
+As to the first issue, the Employment Tribunal did not have the benefit of the later decisions in the European Court of Justice/Court of Justice of the European Union and in the High Court.
+That jurisprudence shows that a distinction must be drawn between the tests for justification in direct and indirect discrimination and regulation 3 should be read accordingly [51].
+The aims set out in article 6(1) of the Directive are directed primarily to the Member States and are of a public interest nature, which is distinguishable from purely individual reasons particular to the employers situation, such as cost reduction or improving competitiveness [50(2)].
+The Age Regulations had given employers and partnerships the flexibility to choose which aims to pursue, provided that (i) they can count as legitimate objectives of a public interest nature within the meaning of the Directive, (ii) they are consistent with the social policy aims of the state, and (iii) the means used are both appropriate to the aim and reasonably necessary to achieve it [55].
+It is necessary to identify the actual objective being pursued, although it may not have been articulated or even realised when the measure was first adopted [59, 60]].
+Once an aim has been identified, it has to be asked whether it is legitimate in the particular circumstances of the employment or partnership concerned [61].
+Finally, the means chosen must be both appropriate and necessary to achieve that aim [62].
+Two broad categories of aim had been accepted as legitimate by the European Court: inter generational fairness and preserving the dignity of older workers [56, 57].
+The three aims accepted by the Employment Tribunal in this case were consistent with article 6(1) of the Directive.
+Staff retention and workforce planning were directly related to the social policy aim of sharing out professional employment opportunities fairly between the generations.
+Limiting the need to expel partners by way of performance management was directly related to the dignity aim [67] (despite some reservations expressed about this aim generally [57, 58]).
+As to the second issue, the wording of regulation 3 suggests that the focus is on whether the treatment of Mr Seldon (B) in particular was justified [63].
+However, where it is justified to have a general rule, then the existence of that rule will usually justify the treatment which results from it. [65].
+Often, requiring the application of the rule to the individual to be specifically justified would negate the purpose of having a rule in the first place [66].
+However, all businesses will now have to give careful consideration to what, if any, mandatory retirement rules can be justified in their particular business [66].
+The case is remitted to the Employment Tribunal to consider whether the choice of a mandatory age of 65 was a proportionate means of achieving the legitimate aims of the partnership [68].
diff --git a/UK-Abs/test-data/summary/full/uksc-2010-0231.txt b/UK-Abs/test-data/summary/full/uksc-2010-0231.txt
new file mode 100644
index 0000000000000000000000000000000000000000..9c91060ca5fd71296dee5b84724e0f5ec35785bf
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2010-0231.txt
@@ -0,0 +1,39 @@
+The Appellants are all employed to work in various capacities on offshore oil and gas installations.
+The Respondents are their employers.
+With the exception of one, all were contracted to work to a pattern of two weeks offshore followed by two weeks onshore (called a field break).
+Whilst offshore the Appellants generally worked a 12 hour shift each day during which rest breaks were taken.
+This was followed by 12 hours off duty living offshore on the installation.
+They did not have any days off while they were offshore.
+For the most part the Appellants were free from work related obligations during the entire period of their field breaks.
+The Working Time Regulations 1998 (the WTR) set out in domestic law the provisions of the Working Time Directive 2003 (the WTD), which lays down minimum health and safety requirements for the organisation of working time, with minimum rest periods consisting of daily rest, weekly rest and annual leave (Articles 3 to 7 WTD).
+Article 7 of the WTD and Regulation 13 of the WTR provide that the worker is entitled to paid annual leave of at least four weeks (at the time the Appellants made their claims).
+Regulation 15 of the WTR provides that a worker may take leave to which he is entitled on such days as he chooses by giving notice to his employer, but that the employer may require him to take leave on particular days.
+The issue in this case is whether the period spent onshore should count towards the workers entitlement to four weeks paid annual leave.
+The Appellants issued proceedings contending that annual leave, properly construed, means release from what would otherwise have been an obligation to work, and therefore the WTR required the Respondents to permit them to take annual leave from periods when they would otherwise be required to work on the offshore installation.
+The Respondents maintained that the time onshore is itself a rest period, as it is not working time, so the paid annual leave entitlement was discharged by two weeks onshore within the shift pattern.
+The Employment Tribunal held that leave in Regulation 13 of the WTR involved a release from what would otherwise have been an obligation to work.
+That decision was set aside by the Employment Appeal Tribunal, which held that the time available during field breaks, after allowing for compensatory rest to take account of the fact that the Appellants worked offshore without a weekly rest period, was more than sufficient to cover the entitlement to annual leave.
+The Inner House of the Court of Session refused the Appellants appeal, holding that what the WTD required was that there be provided to the worker within the year at least four remunerated weeks in which he was free from working commitments.
+There was nothing in the WTD to suggest that employers might not arrange matters so that annual leave was taken during the school holidays or such similar industrial equivalent.
+The Supreme Court unanimously refuses the request for a reference to the Court of Justice of the European Union, dismisses the appeal, and affirms the interlocutor of the Extra Division of the Court of Session.
+The judgment is given by Lord Hope.
+Under the WTD, every worker must be entitled to a rest break, a daily rest, and a weekly rest period.
+Each period must be measured separately from each other.
+They cannot intrude upon each other or overlap [16].
+Where necessary because of special working patterns, workers must be afforded equivalent periods of compensatory rest.
+In the Appellants case, it was agreed that the first two days of each period of their field break is accounted for as compensatory rest, to make up for the fact that they work a 12 hour shift every day during their two weeks offshore [17].
+With regard to the annual leave entitlement, Article 7 of the WTD does not require that those four weeks must be taken consecutively or that those weeks cannot be interrupted [18].
+But as a period of leave is not a period which is defined in Article 2 as working time, it must be taken to be what that article defines as a rest period.
+It is an annual period of rest [19].
+The WTD does not imply any qualitative requirement to test whether a given period can be accounted as rest.
+The exercise that must be carried out is simply one of counting up the relevant hours, days or seven day periods and ensuring that the worker is not required to work during those periods.
+There is no indication anywhere that the WTD was concerned about the quality of the minimum periods of rest, other than to make it clear in the definition of rest period that it means a period which is not working time[21].
+The contract in question is a contract for the whole of the year, in which the employees were required to work for 26 weeks [34].
+The purpose of the entitlement to annual leave is to enable the worker to rest and enjoy a period of relaxation and leisure.
+The ECJ has not said that a pre ordained rest period, when the worker is free from all obligations to the employer, can never constitute annual leave.
+On the contrary, the term rest period simply means any period which is not working time, and any period means every such period irrespective of where the worker is at that time and what he is doing, so long as it is a period when he is not working.
+It is plain that any period when the Appellants are on field break onshore will fall into that category [36].
+The Respondents are therefore entitled to insist that the Appellants must take their paid annual leave during periods other than their 26 working weeks when they are onshore on field break.
+This is permitted by Regulation 13 of the WTR, read in conformity with Article 7 of the WTD [38].
+A reference to the CJEU is not necessary in this case.
+The meaning to be given to article 7, for the purposes of this judgment, is not open to any doubt [43].
diff --git a/UK-Abs/test-data/summary/full/uksc-2010-0236.txt b/UK-Abs/test-data/summary/full/uksc-2010-0236.txt
new file mode 100644
index 0000000000000000000000000000000000000000..0b9c865756da080ed3a8fd1aefe65ab6b63c1bdb
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2010-0236.txt
@@ -0,0 +1,30 @@
+The three respondents were part of a vitamins cartel which the European Commission found by Commission Decision COMP/E 1/37.512 of 21 November 2001 had infringed Article 81 of the EC Treaty (now Article 101 TFEU).
+Accordingly, the Commission imposed fines on the cartelists who were given until 31 January 2002 to appeal against; (a) the infringement decision; and/or (b) the fine.
+Only BASF exercised that right of appeal and they did so only in respect of the amount of the fine; no appeal was made against the Commissions decision that an infringement had occurred.
+On 15 March 2006 the Court of First Instance (CFI) reduced the amount of the fine and the deadline for any further appeal expired shortly afterwards (on 25 May 2006) without any further appeal being lodged.
+Section 47A of the Competition Act 1998 (the 1998 Act) provides that following an infringement finding by the Commission, any person who has suffered loss as a result of that infringement may bring a follow on claim for damages.
+On 12 March 2008 the four appellants sought to bring such claims against the respondents before the UK Competition Appeal Tribunal (CAT).
+The respondents argued that the appellants were precluded from doing so on the grounds that the two year limitation period for the bringing of such claims had expired with the result that the claims were time barred.
+The respondents contended that the limitation period started running on the date on which BASFs time for appealing against the Commissions infringement decision expired (31 January 2002) with the result that the limitation period expired two years later (31 January 2004) and the proposed claims were therefore time barred.
+The appellants rejected this interpretation contending instead that the limitation period commenced on the date on which BASFs time for appealing the CFIs decision on the level of the fine expired (25 May 2006) with the result that the limitation period expired on 25 May 2008 and the proposed claims were in time.
+The CAT held that the appellants interpretation was correct and that the proposed follow on damages claims had been brought in time.
+The Court of Appeal (CA) granted the respondents permission to appeal and allowed the appeal holding that the plain and ordinary meaning of the statutory language drew a clear distinction between infringement decisions and penalty decisions.
+Only infringement decisions were of relevance in determining when the limitation period started to run.
+The CA further held that the CAT had no power to extend the time in which follow on damages claims could be brought and EU law did not override the UK time bar or require that a power to extend time be held to exist.
+The appellants appealed to the Supreme Court on the grounds that the operation of the two year limitation period caused legal uncertainty and thus made it excessively difficult for the appellants to pursue follow on damages claims against the respondents in time in breach of EU law.
+The Supreme Court unanimously dismisses the appeal.
+There is no failure to comply with the European legal principles of effectiveness and legal certainty; the statutory limitation period is sufficiently clear, precise and foreseeable as to allow individuals to ascertain their rights and obligations and to exercise those rights without excessive difficulty.
+The judgment of the Court is given by Lord Mance.
+National limitation periods are permissible under EU law but they should not operate so as to render practically impossible or excessively difficult the exercise of EU law rights [15]; whether or not they do so is a matter for the national courts to determine in light of the European principles of effectiveness and legal certainty [12].
+EU law does not require that the interpretation or true effect of a statutory limitation period be clear beyond doubt [20 22].
+The true test is more flexible and does not impose a requirement for absolute clarity.
+Instead what is required is that national law is sufficiently clear, precise and foreseeable as to enable individuals to ascertain their rights and obligations and exercise those rights without excessive difficulty [23 24].
+Section 47A of the 1998 Act satisfies that test as it is sufficiently clear, precise and foreseeable as to enable individuals to ascertain when the limitation period commences.
+In this case, the statutory limitation period commenced following the expiry of the time within which the respondents could appeal against the Commissions infringement decision; it did not commence following the expiry of the time within which the respondents could appeal against the CFIs decision as to the level of the fine [29].
+The Competition Act 1998 repeatedly distinguishes between infringement decisions on the one hand and penalty decisions on the other, making clear that only infringement decisions are of relevance in determining the date upon which a limitation period commences: see e.g. sections 31, 32, 36, 46 and 47A [30].
+Given that BASF did not appeal against the Commissions infringement decision it was sufficiently clear that the two year limitation period started on 31 January 2002 following the expiry of the time for appealing against the Commissions infringement decision.
+As the operation of the statutory time limit is sufficiently clear, precise and foreseeable the statute did not render it excessively difficult for the appellants to exercise their EU law rights.
+Consequently, EU law does not require that a power to extend time be treated as existing.
+Indeed, it is clear that the Secretary of State in making the CAT rules deliberately decided that there should be no power to extend time for the commencement of damages claims [42].
+Had the Court found that the statutory limitation period failed to comply with the European principles of effectiveness and legal certainty then the United Kingdom would have been in breach of its obligations under EU law and State liability would have arisen.
+However, even in such circumstances the appellants could not have brought follow on damages claims against the respondents as EU law does not require the setting aside as between civil parties of a limitation defence, successfully established under domestic law, on the grounds that its effect would have been insufficiently clear, precise and foreseeable prior to the court decision establishing it [44 47].
diff --git a/UK-Abs/test-data/summary/full/uksc-2010-0244.txt b/UK-Abs/test-data/summary/full/uksc-2010-0244.txt
new file mode 100644
index 0000000000000000000000000000000000000000..14b9cbd2a75b7d53d9b299cbe5b82118f8238669
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2010-0244.txt
@@ -0,0 +1,33 @@
+This appeal concerns the liability of a local authority to pay the costs of a party to care proceedings.
+The proceedings related to two children, whose parents were separated.
+The local authority applied for a care order under section 31 (2) Children Act 1989 in response to the making of allegations by the children that they had suffered sexual abuse by their father and six other men, in which the fathers parents (the grandparents) had colluded.
+The six men and the grandparents were joined to the care proceedings as interveners.
+The judge conducted a lengthy fact finding hearing, as a result of which he exonerated five of the six men and the grandparents of any such abuse.
+The interveners were entitled to be represented at the hearing.
+The six men qualified for legal aid but the grandparents did not.
+They incurred costs of 52,000, which they met by taking out a mortgage on their house.
+At the end of the hearing they applied for an order that the local authority should pay their costs on the ground that they had succeeded in defending the allegations made against them.
+It was accepted that the local authority had acted reasonably in bringing the proceedings.
+The judge refused their application on the basis that it was not usual to order costs in a child case against a party unless that partys conduct had been unreasonable or reprehensible.
+The Court of Appeal allowed the grandparents appeal, holding that costs could be awarded in respect of discrete fact finding hearings.
+Although it rarely hears appeals relating solely to costs, the Supreme Court granted permission to appeal because of the important point of principle raised by the appeal, on terms that, whatever the result, the grandparents entitlement to recover their costs as a result of the order of the Court of Appeal would not be disturbed.
+The Supreme Court unanimously allows the appeal.
+It holds that the general practice of not awarding costs in care proceedings against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, should not be subject to an exception in the case of discrete fact finding hearings.
+Lord Phillips delivers the judgment of the court.
+Family proceedings depart from the general rule applicable in civil proceedings that the unsuccessful party will be ordered to pay the costs of the successful party (CPR 44.3(2)(a)).
+This is because there are special considerations that militate against the approach appropriate in other kinds of adversarial litigation, particularly where the interests of children are at stake.
+It is usual in proceedings involving a child for no order to be made in relation to costs [11].
+Care proceedings usually involve allegations of misconduct towards a child by some persons, typically a parent.
+The object of the proceedings is to reach a decision which is in the best interests of the child.
+Often it is necessary to resolve issues of fact which are disputed.
+The decision whether or not to have a split hearing is one of case management, taken by the court, and cannot affect the principles to be applied by the court when dealing with costs.
+If it is correct in a particular case to award costs in relation to individual issues of fact this can more easily be done if the costs associated with those issues are incurred in a separate hearing, but this is only relevant to the practicality of such an order [28].
+The question of whether it was just to make an award of costs against a public authority had to be distinguished from the question of whether a litigants costs should be publicly funded, which was a matter for Parliament [39].
+The current arrangements might lead to injustice for interveners in the position of the grandparents in the present case, but it did not follow that justice demanded that any deficiency in the provision of public funding should be made up from the funds of the local authority responsible for care proceedings [40].
+Equally, if in principle a local authority should be liable for the costs of interveners who succeed in showing that factual allegations against them are unfounded, this liability should arise whether or not the interveners are publicly funded [41].
+It was legitimate to have regard to the competing demands on the limited funds of the local authority.
+It was not right to treat it as in the same position as a civil litigant who raises an issue that is ultimately determined against him.
+A local authority has a duty to investigate reports that a child has been subjected to significant harm and, where there are reasonable grounds for believing that they may be well founded, to instigate care proceedings.
+In this respect the role of the local authority has much in common with that of a prosecuting authority and it is for the court to determine where the truth lies [42].
+There was no valid basis for restricting the approach of the Court of Appeal in this case to findings of fact in a split hearing and the effect on the resources of local authorities would be significant [43].
+For these reasons the Supreme Court concluded that that the general practice of not awarding costs in care proceedings against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, is one that accords with the ends of justice and which should not be subject to an exception in the case of split hearings [44].
diff --git a/UK-Abs/test-data/summary/full/uksc-2011-0011.txt b/UK-Abs/test-data/summary/full/uksc-2011-0011.txt
new file mode 100644
index 0000000000000000000000000000000000000000..52561d0365dd620e53a748c76c98b750caa76044
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2011-0011.txt
@@ -0,0 +1,29 @@
+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]
diff --git a/UK-Abs/test-data/summary/full/uksc-2011-0024.txt b/UK-Abs/test-data/summary/full/uksc-2011-0024.txt
new file mode 100644
index 0000000000000000000000000000000000000000..27f79532d11a9cb4e3f4f196b60bc9b2ad39663d
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2011-0024.txt
@@ -0,0 +1,42 @@
+The issue is whether the ban on the entry for settlement of foreign spouses or civil partners unless both parties are aged 21 or over, contained in paragraph 277 of the Immigration Rules, was a lawful way of deterring or preventing forced marriages.
+Paragraph 277 of the Immigration Rules [Paragraph 277] was amended with effect from 27 November 2008 to raise the minimum age for a person either to be granted a visa for the purposes of settling in the United Kingdom as a spouse or to sponsor another for the purposes of obtaining such a visa from 18 to 21.
+The purpose of the amendment was not to control immigration but to deter forced marriages.
+A forced marriage is a marriage into which at least one party enters without her or his free and full consent through force or duress, including coercion by threats or other psychological means.
+Mr Quila, a Chilean national, entered into a fully consensual marriage with Ms Jeffery, a British citizen.
+Mr Aguilar Quila applied for a marriage visa before the amendment took effect, but his application was refused as his wife was only 17 and a sponsoring spouse had to be 18.
+By the time that Ms Jeffrey had turned 18 the amendment was in force and the Home Office refused to waive it.
+Consequently, Mr Quila and his wife were forced to leave the UK initially to live in Chile (his wife having had to relinquish a place to study languages at Royal Holloway, University of London) and subsequently to live in Ireland.
+Bibi (as she invited the Court to describe her) is a Pakistani national who applied to join her husband, Mohammed, a British citizen, in the UK.
+Bibi and Mohammed had an arranged marriage in Pakistan in October 2008, to which each of them freely consented.
+Their application was refused as both parties were under 21.
+The Respondents claims for judicial review of the decisions were both rejected in the High Court.
+The Respondents successfully appealed to the Court of Appeal, which declared that the application of Paragraph 277 so as to refuse them marriage visas was in breach of their rights under Article 8 of the European Convention on Human Rights and Fundamental Freedoms 1950 [the ECHR].
+The Secretary of State has appealed to the Supreme Court.
+The Supreme Court, by a 4 1 majority, dismisses the Secretary of States appeal on the grounds that the refusal to grant marriage visas to the Respondents was an infringement of their rights under Article 8 ECHR.
+Lord Wilson gives the leading judgment; Lady Hale gives a concurring judgment.
+Lord Phillips and Lord Clarke agree with Lord Wilson and Lady Hale.
+Lord Brown gives a dissenting judgment.
+Article 8 ECHR was engaged [43; 72].
+Applying R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, the relevant question was whether there had been an interference by a public authority with the exercise of a persons right to respect for his private or family life and if so, whether it had had consequences of sufficient gravity to engage the operation of the article [30].
+Unconstrained by authority,
+Lord Wilson would have considered it a colossal interference to require for up to three years either that the spouses should live separately or that a British citizen should leave the UK for up to three years [32].
+The ECtHR in Abdulaziz v United Kingdom (1985) 7 EHRR 471 has, however, held that there was no lack of respect for family life in denying entry to foreign spouses.
+There was no positive obligation on the State to respect a couples choice of country of matrimonial residence [35 36].
+Lord Wilson holds that Abdulaziz should not be followed in this respect; there was dissent at the time and no clear and consistent subsequent jurisprudence from the ECtHR as four more recent decisions [38 41] were inconsistent with the decision [43].
+The ECtHR has since recognized that the distinction between positive and negative obligations should not generate different outcomes [43].
+The Secretary of State has failed to establish that the interference with the Respondents rights to a family life was justified under Article 8(2) ECHR.
+Paragraph 277 has a legitimate aim, namely the protection of the rights and freedoms of those who might be forced into marriage [45] and is rationally connected to that objective, but its efficacy is highly debatable [58].
+A number of questions remain unanswered including how prevalent the motive of applying for UK citizenship is in the genesis of forced marriages; whether the forced marriage would have occurred in any event and thus the rule increase the control of victims abroad and whether the amendment might precipitate a swift pregnancy in order to found an application for a discretionary grant of a visa [49].
+The Secretary of State has failed to adduce any robust evidence that the amendment would have any substantial deterrent effect [50; 75].
+By contrast, the number of forced marriages amongst those refused a marriage visa had not been quantified [53].
+The only conclusion that could be drawn was that the amendment would keep a very substantial number of bona fide young couples apart or forced to live outside the UK [54], vastly exceeding the number of forced marriages that would be deterred [58; 74].
+The measure was similar to the blanket prohibition on persons subject to immigration control marrying without the Secretary of States written permission found to be unlawful in R (Baiai) v Secretary of State for the Home Department [2008] UKHL 53 [57, 78 79].
+The Secretary of State has failed to exercise her judgement on this imbalance and thus failed to establish both that the measure is no more than is necessary to accomplish the objective of deterring forced marriage and that it strikes a fair balance between the rights of parties to unforced marriages and the interests of the community in preventing forced marriage.
+On any view, the measure was a sledgehammer but the Secretary of State has not attempted to identify the size of the nut [58].
+Lady Hale holds that the debate on Abdulaziz is something of a red herring as the Secretary of State could not simultaneously state that the measure was not for the purpose of controlling immigration and rely upon jurisprudence wholly premised on the States right to control immigration [72].
+She further holds that the restriction was automatic and indiscriminate [74]; failed to detect forced marriages and imposed a delay on cohabitation in the country of choice, which was a deterrent that could impair the essence of the right to marry under Article 12 ECHR [78 79].
+Whilst the judgment is essentially individual, it is hard to conceive that the Secretary of State could avoid infringement of Article 8 ECHR when applying Paragraph 277 to an unforced marriage [59; 80].
+Lord Brown, dissenting, holds the extent of forced marriage is impossible to quantify so the deterrent effect of Paragraph 277 could never be satisfactorily determined [87].
+The judgement of how to balance the enormity of suffering within forced marriages with the disruption to innocent couples was one for elected politicians, not for judges [91].
+The measure was not an automatic indiscriminate restriction [92]; would be disapplied in exceptional circumstances [93] and similar rules applied in other European countries [85].
+To disapply the rule would exceed ECtHR jurisprudence and in such a sensitive context, government policy should not be frustrated except in the clearest cases [97].
diff --git a/UK-Abs/test-data/summary/full/uksc-2011-0046.txt b/UK-Abs/test-data/summary/full/uksc-2011-0046.txt
new file mode 100644
index 0000000000000000000000000000000000000000..ec2309a188d2153c84f6aa37ac4bf3a45e6198d8
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2011-0046.txt
@@ -0,0 +1,29 @@
+The issue arising in the appeal is whether the appellants have satisfied the threshold conditions set out in section 1(6) of the Equal Pay Act 1970 (the Act) in order to bring claims alleging that they are employed under less favourable terms and conditions than certain male employees of the respondent council who do work of equal value.
+The appellants have to establish that the male employees are in the same employment as they are, notwithstanding the fact that they are employed on different terms and conditions at different establishments from the appellants.
+The appellants are 251 classroom assistants, support for learning assistants and nursery nurses employed during school term time in the respondents schools under terms contained in a national collective agreement known as the Blue Book.
+The appellants wish to compare their terms and conditions with those enjoyed by a variety of full time manual workers employed by the respondent, as groundsmen, refuse collectors, refuse drivers and a leisure attendant (the comparators), under a different collective agreement known as the Green Book.
+The comparators are entitled to a substantial supplement on top of their basic pay, whereas the appellants are not.
+The issue of whether the appellants are in the same employment as the comparators was determined in a pre hearing review.
+The Employment Tribunal ruled that they are, because the appellants could show that if the comparators were employed at their establishments they would be employed under broadly similar terms to those under which they are employed at present.
+The Employment Appeal Tribunal allowed an appeal by the respondent on the ground that the appellants could not show that there was a real possibility that the comparators could be employed in schools to do their existing jobs.
+The Court of Session held that this was the wrong test, but that the appellants still failed on the evidence to show that if the comparators were to be based at schools they would be employed on Green Book terms and conditions.
+The appellants appealed to the Supreme Court.
+The Supreme Court unanimously allows the appeal and restores the decision of the Employment Tribunal permitting the claims to be brought.
+The tribunal will now proceed to decide whether the appellants work is in fact of equal value to that of the comparators and, if so, whether there is an explanation other than the difference in sex for the difference between their terms and conditions.
+Lady Hale gives the only judgment.
+The requirement that claimants and their chosen comparators are in the same employment before a claim can be brought under the Act does not simply mean that they must be employed by the same employer.
+If they do not work at the same establishment as their comparators, claimants must show that they are both employed at establishments in Great Britain at which common terms and conditions of employment are observed either generally or for employees of the relevant classes (s 1 (6) of the Act).
+The common terms and conditions are between the comparators terms at different establishments and those on which they are or would be employed at the claimants establishment [12].
+It is no answer to say that no such comparators ever would be employed at the same establishment as the claimant, otherwise it would be far too easy for an employer to arrange things so that only men worked in one place and only women in another [13].
+The correct hypothesis to consider is the transfer of the comparators to do their present job in a different location [30].
+The evidence from the respondents Group Manager of Human Resources confirmed that, although he could not envisage it happening, in the event that the comparators were based in schools then they would retain their Green Book conditions [31].
+The Employment Tribunal adopted the correct test and was entitled to find it satisfied on this evidence.
+It was not necessary to show that it was feasible to co locate the relevant workers.
+This was an unwarranted gloss on s 1(6) [33] and would defeat the object of the legislation.
+The fact that of necessity work has to be carried on in different places is no barrier to equalising the terms on which it is done [34].
+It is not the function of the same employment test to establish comparability between the jobs done, but simply to weed out those cases in which geography plays a significant part in determining the relevant terms and conditions [35].
+This construction of s 1(6) is more consistent with the requirements of European Union law, to which the Act gives effect [36].
+Case law of the European Court of Justice has established that for the principle of equal pay to have direct effect, the difference in treatment must be attributable to a single source which is capable of putting it right [40].
+That is clearly the case here.
+If s 1(6) were to operate as a barrier to a comparison which was required by EU law to give effect to the fundamental principle of equal treatment it would be the courts duty to disapply it.
+However, s 1(6) sets a low threshold which does not operate as a barrier to the comparison proposed in this case [42].
diff --git a/UK-Abs/test-data/summary/full/uksc-2011-0089.txt b/UK-Abs/test-data/summary/full/uksc-2011-0089.txt
new file mode 100644
index 0000000000000000000000000000000000000000..acee44682fee8e8b9db35cfc05f1efa07a82924d
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2011-0089.txt
@@ -0,0 +1,49 @@
+These appeals raise important and difficult issues in the field of equity and trust law.
+Both appeals raise issues about the so called rule in Hastings Bass, which is concerned with trustees who make decisions without having given proper consideration to relevant matters which they ought to have taken into account.
+In addition, the appeal in Pitt raises issues as to the courts jurisdiction to set aside a voluntary disposition on the ground of mistake.
+In 1985, Mr Mark Futter made two settlements.
+Initially, both settlements had non resident trustees, until, in 2004, he and Mr Cutbill, both resident in the United Kingdom, were appointed.
+In 2008, on the advice of solicitors, Mr Futter and Mr Cutbill, in exercise of a power of enlargement, distributed the whole capital of the first settlement to Mr Futter, and, in exercise of a power of advancement, distributed 36,000 from the second settlement to Mr Futters three children in equal shares.
+In so doing, they overlooked the effect of section 2(4) of the Taxation of Chargeable Gains Act 1992 (TCGA), which resulted in a large capital gains tax liability for Mr Futter, and a modest one for his children.
+Mr Futter and Mr Cutbill, as trustees of the two settlements, applied to have the deed of enlargement and the deeds of advancement declared void, which Norris J held them to be on the basis of the rule in Hastings Bass.
+In 1990, Mr Derek Pitt suffered very serious head injuries in a road traffic accident, resulting in his mental incapacity.
+Mr Pitts claim for damages for his injuries was compromised by a court approved settlement in the sum of 1.2m.
+Mr Pitts solicitors sought advice from Frankel Topping, a firm of financial advisers.
+They advised that the damages should be settled in a discretionary settlement.
+This was done in 1994 by the establishment of the Derek Pitt Special Needs Trust (the SNT).
+The SNT could have been established without any immediate inheritance tax liability, but it was not.
+The report from Frankel Topping made no reference whatsoever to inheritance tax.
+In 2007, Mr Pitt died.
+His personal representatives, who were also two of the trustees of the SNT, commenced proceedings to have the SNT set aside, which the deputy judge ordered on the basis of the rule in Hastings Bass.
+However, in so doing, he indicated that, even if there had been a mistake of any sort, it was only a mistake as to the consequences of the transaction, rather than its effect, and so he would not have granted rescission of the SNT.
+The Revenues appeals against these decisions were heard together in the Court of Appeal.
+Lloyd LJ (with whom Longmore and Mummery LJJ agreed) (i) allowed the appeals, principally on the ground that the rule in Hastings Bass was not applicable, because the respective trustees acted reasonably in reliance on what they supposed to be competent professional advice, (ii) dismissed Mrs Pitts appeal based on mistake, on the basis that rescission for mistake could only be granted if there was a serious mistake as to nature of a transaction, rather than its consequences, and a mistake as to tax consequences was not a sufficient mistake for the purposes of rescission.
+The Supreme Court unanimously (i) dismisses the appeal in Futter, and the appeal in Pitt, so far as they turn on the rule in Hastings Bass, (ii) allows the appeal in Pitt on the ground of mistake, and sets aside the SNT.
+Lord Walker gives the judgment, with which the other Justices agree.
+The rule in Hastings Bass The rule in Hastings Bass, properly understood, depends on breach of duty in the performance of something that is within the scope of the trustees powers, not in the trustees doing something that they had no power to do at all [43].
+The rule is centred on the failure of trustees to perform their decision making function.
+It is that which founds the courts jurisdiction to intervene if it thinks fit to do so [91].
+As a matter of principle there must be a high degree of flexibility in the range of the courts possible responses.
+To lay down a rigid rule would inhibit the court in seeking the best practical solution in the application of the rule in Hastings Bass in a variety of different factual situations [92].
+For the rule in Hastings Bass to apply, the inadequate deliberation on the part of the trustees must be sufficiently serious as to amount to a breach of fiduciary duty.
+It is generally only a breach of duty on the part of the trustees that entitles the court to intervene.
+It is not enough to show that the trustees deliberations have fallen short of the highest possible standards, or that the court would, on a surrender of discretion by the trustees, have acted in a different way.
+Apart from exceptional circumstances (such as an impasse reached by honest and reasonable trustees) only breach of fiduciary duty justifies judicial intervention [73].
+However, where trustees have been in breach of duty by exercising a discretion with inadequate deliberation, setting aside their decision may not be the only course open to the court [63].
+It would be contrary to principle and authority to impose a form of strict liability on trustees who conscientiously obtain and follow, in making a decision which is within the scope of their powers, apparently competent professional advice which turns out to be wrong [80].
+Such a result cannot be achieved by the route of attributing any fault on the part of professional advisers to the trustees as their supposed principals [81].
+There have been, and no doubt will be in the future, cases in which small variations in the facts lead to surprisingly different outcomes.
+That is inevitable in an area where the law has to balance the need to protect beneficiaries against aberrant conduct by trustees (the policy behind the rule in Hastings Bass) with the competing interests of legal certainty, and of not imposing too stringent a test in judging trustees decision making [83].
+Rescission on the ground of mistake The true requirement for rescission on the ground of mistake is simply for there to be a causative mistake of sufficient gravity.
+The test will normally be satisfied only when there is a mistake either as to the legal character or nature of a transaction, or as to some matter of fact or law which is basic to the transaction [122].
+Consequences (including tax consequences) are relevant to the gravity of a mistake [132].
+A mistake must be distinguished from mere ignorance, inadvertence, and misprediction [104].
+Forgetfulness, inadvertence or ignorance is not, as such, a mistake, but it can lead to a false belief or assumption which the law will recognise as a mistake [105].
+Mere ignorance, even if causative, is insufficient [108].
+However, the distinctions may not be clear on the facts of a particular case [109].
+In order to satisfy the test for setting aside a voluntary disposition on the ground of mistake, the gravity of the mistake must be assessed by a close examination of the facts.
+The injustice of leaving a mistaken disposition uncorrected must be evaluated objectively, but with an intense focus on the facts of the particular case [126].
+The court must make an evaluative judgment whether it would be unconscionable, or unjust, to leave the mistake uncorrected, and form a judgment about the justice of the case [128].
+Mrs Pitt had an incorrect conscious belief, or made an incorrect tacit assumption, that the proposed SNT had no adverse tax effects [133].
+The SNT could have complied with statutory requirements without any artificiality or abuse of statutory relief.
+It was precisely the sort of trust to which Parliament intended to grant relief [134].
diff --git a/UK-Abs/test-data/summary/full/uksc-2011-0115.txt b/UK-Abs/test-data/summary/full/uksc-2011-0115.txt
new file mode 100644
index 0000000000000000000000000000000000000000..8a9d4df9317b8fe805f8d247bb87c63df545b0c6
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2011-0115.txt
@@ -0,0 +1,24 @@
+Section 6(1) of the Prosecution of Offences Act 1985 (the 1985 Act) recognises the right of a private person to institute and conduct a private prosecution where the duty of the Director of Public Prosecutions (the DPP) to take over them does not apply.
+But the right is subject to s.6(2) of the 1985 Act which confers upon the DPP a power, even when not under a duty to take over the proceedings, nevertheless to do so at any stage.
+In determining whether to do so, it is his policy to apply certain criteria, including in particular a criterion relating to the strength of the evidence in support of the prosecution.
+Prior to 23 June 2009, the DPP asked himself whether there was clearly no case for the defendant to answer.
+If such was his conclusion, he took over the prosecution and discontinued it; otherwise, subject to the application of further criteria, he declined to take it over.
+However, on 23 June 2009 he changed his policy in relation to the evidential criterion.
+In that regard it became his policy to take over and discontinue a private prosecution unless the prosecution was more likely than not to result in a conviction (the reasonable prospect test).
+In August 2010 the Appellant instituted two private prosecutions.
+On 16 November 2010 the DPP, acting by the Crown Prosecution Service (the CPS), took over and discontinued the prosecutions.
+The Appellant applied for judicial review of the decision to do so.
+His case was that the reasonable prospect test, adopted by the DPP on 23 June 2009, is unlawful.
+It is common ground that the application of the DPPs former evidential criterion would not have led to him to take over and discontinue the prosecutions.
+The Divisional Court of the Queens Bench Division of the High Court dismissed the application and the Appellant now appeals.
+The Supreme Court, by a majority of 3:2 (Lord Mance and Lady Hale dissenting), dismisses the appeal.
+Lord Wilson gives the lead judgment for the majority.
+The critical question for Lord Wilson is not the constitutional importance of the right to private prosecutions, which he recognises [27 29].
+It is whether, in applying the reasonable prospect test, the DPP frustrates the policy and objects which underpin s.6 of the 1985 Act. [30, 49] In reaffirming, in qualified terms, the right to maintain a private prosecution in s.6, Parliament could not be taken to have intended that the DPP should decline to exercise his discretion so as to intervene and discontinue a prosecution even if it lacks a reasonable prospect of success. [39] The new tests focus on the likelihood of conviction was a more relevant question than the previous no case to answer test. [34] Lord Wilson gives illustrations of private prosecutions which survive the current test [33], and four further reasons to support his conclusions [36]: (1) Parliament did not expressly confine the discretion
+in s.6(2). (2) The main object behind the 1985 Act, reflected in the report of the Royal Commission in 1981, was to establish a nationwide CPS and to achieve consistent standards in instituting and conducting prosecutions.
+The reasonable prospect standard was also approved in the Royal Commission report for all prosecutions. [58] (3) A prosecution lacking a reasonable prospect of success draws inappropriately on court resources. (4) A defendant would have a legitimate grievance about being subjected to private prosecution when, by the application of lawful criteria as to the strength of the evidence against him, there would be no public prosecution.
+Furthermore, as acknowledged in general terms in paragraph 2.3 of the 2009 Code for Crown Prosecutors, the DPP acts unlawfully if he adopts too rigid an approach in applying his policy towards interventions with a view to discontinuance, which would be amenable to judicial review. [37] Lord Neuberger adds that many of the factors justifying the reasonable prospect test in public prosecutions unfairness to a defendant, costs, use of court time and confidence in the justice system apply to private prosecutions. [57] The right to initiate a private prosecution remains virtually unlimited and those meeting the evidential and public interest tests are allowed to continue save where there is a particular need for the DPP to take over. [60 1] Whilst mindful of cutting down individuals right of access to the courts, the right to conduct a private prosecution has always been subject to being curtailed by the Attorney General through issuing a nolle prosequi [64].
+Lord Kerr observes that the right has been modified by successive enactments over time, including the establishment of the office of the DPP itself. [80] There is nothing to suggest that the policy prior to 2009 was immutable or inviolable. [84] The new policy might restrict private prosecutions, but it is not unacceptable as a matter of law. [71] Lord Mance however emphasises the strong historical and constitutional basis for private prosecutions [88 90, 94, 99, 100, 105 6].
+He approves the words of Laws LJ in R v Director of Public Prosecutions, Ex Parte Duckenfield [2000] 1 WLR 55, at 68 9, that a reasonable prospect test would emasculate the right afforded by s.6(1). [113] The right of access to justice granted in s.6(1) was not intended to be made ineffective or subverted by s.6(2), which can only be removed by clear words. [107] The unspecified nature of the words in s.6(2) were aimed at public policy not new evidential grounds [114].
+The fundamental right in s.6(1) was not undermined by the potential harm resulting from an unsuccessful prosecution.
+It provides an important safeguard when an individual prosecutor might have misjudged the evidence. [115] There is no justification for such a radical change of policy. [117 118] Lady Hale expresses doubts over the reasonable prospect test as there could be, as in this case, two reasonable but different views on whether a reasonable court would convict. [126 131] This leaves a victim dependent on which prosecutor handles the case, exacerbated by the fact the exercise is done on the papers without examination of witnesses. [131] The possibility of judicial review is not a sufficient safeguard and the test could raise issues under the European Convention of Human Rights. [132 3]
diff --git a/UK-Abs/test-data/summary/full/uksc-2011-0117.txt b/UK-Abs/test-data/summary/full/uksc-2011-0117.txt
new file mode 100644
index 0000000000000000000000000000000000000000..7420fce880dbd53742a3c3055098ab231ebf41c2
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2011-0117.txt
@@ -0,0 +1,41 @@
+This appeal concerns the interpretation of a provision of the Housing Act 1996 (the 1996 Act) relating to the duties of local housing authorities to provide accommodation for those who are, or claim to be, homeless or threatened with homelessness.
+Section 175 of the 1996 Act states, in essence, that a person is homeless if he has no accommodation available for his occupation in the United Kingdom or elsewhere.
+According to section 176, accommodation is to be regarded as available for a persons occupation only if it is available for occupation by him together with any other person who normally resides with him as a member of his family, or any other person who might reasonably be expected to reside with him [3].
+The phrase available for his occupation is relevant not only to establishing whether a person is homeless for the purposes of the 1996 Act, but also to identifying what duties a local authority owes to a person who is, or claims to be, homeless [4].
+In 2004, Camden London Borough Council accepted that it owed a duty under the 1996 Act to provide accommodation to Ms Sharif, her father (a man in his 60s with certain health problems) and her sister (aged 14), on the basis that Ms Sharif was homeless.
+They were initially accommodated by the Council in a hostel and later moved to a three bedroom house owned by a private sector landlord.
+In 2009, the Council asked Ms Shariff, her father and her sister to move to two units on the same floor of a block of flats in North London.
+Each unit comprised a single bed sitting room with cooking facilities, plus a bathroom.
+The two units were separated by only a few yards.
+It was envisaged by the Council that Ms Sharif and her sister would share one unit, and the other unit (suitable only for one person) would be used by her father [8].
+Ms Sharif refused the offer, saying that the accommodation was not suitable because her fathers medical condition required them to live in the same unit of accommodation [9].
+Ms Sharif requested a review of the Councils decision, but the Councils reviewing officer concluded that the accommodation offered was suitable [9].
+Ms Sharif appealed to the London Central County Court on a number of grounds, including the suggestion that the accommodation was not suitable and that section 176 of the 1996 Act precluded the Council from offering Ms Sharif and her family two separate units of accommodation [10].
+The County Court dismissed the appeal [11].
+There was no further appeal on the issue of the suitability of the accommodation.
+However, the Court of Appeal reversed the County Courts decision on the basis that the words together with in section 176 require a homeless family to be housed in the same unit of accommodation [12].
+The Council appealed to the Supreme Court.
+The Supreme Court allows the Councils appeal.
+It holds that section 176 of the 1996 Act does not preclude local authorities from offering a homeless family two separate units of accommodation.
+The lead judgment for the majority is given by Lord Carnwath.
+Lord Kerr gives a dissenting judgment.
+The majority concludes that, whilst one of the main purposes of the 1996 Act is to ensure that members of a homeless family are not split up by local housing authorities, section 176 does not prevent a local housing authority offering a homeless family two separate units of accommodation if they are so located that they enable the family to live together in practical terms.
+That is a factual judgment to be made by the local housing authority [17].
+The 1996 Act requires accommodation provided by a local housing authority to be suitable.
+However, Ms Sharif no longer denies that the two flats offered to her by the Council meet that requirement [18, 29].
+Neither the word accommodation nor the words together with in section 176 imply that a homeless family must be accommodated in the same unit of accommodation [5, 17].
+Had the Councils reviewing officer been asked to answer the question of whether section 176 prohibits the Council from housing a homeless family in two separate units of accommodation, it is reasonably clear that he would have answered in the negative.
+The main obstacle to family living which had been raised before the reviewing officer had been the problem of caring for Ms Sharifs father in a separate unit of accommodation.
+That problem was discounted by the reviewing officer, on the basis that the problem of communication between the two flats would be no greater than in a house with two floors [18].
+The arguments made on behalf of Ms Sharif would produce surprising results.
+For example, the Council would not be able to improve the position of a homeless family residing in an overcrowded house or flat by offering them an additional neighbouring unit of accommodation, even on a temporary basis [19].
+Ms Sharif also accepted that two separate rooms in a hostel or hotel would satisfy the requirements of section 176 of the 1996 Act.
+However, the majority found it hard to see why that should be treated differently from the provision of two adjacent flats [20, 30].
+Lady Hale emphasises that there is no requirement under the 1996 Act for local housing authorities to provide a communal living space to those who are, or claim to be, homeless [30].
+The majority emphasises that their interpretation of section 176 of the 1996 Act does not give local housing authorities a free hand.
+It is a fundamental objective of the 1996 Act to ensure that families can live together in a true sense; accommodation provided by a local housing authority will not satisfy section 176 unless it enables that objective to be achieved [23].
+Lord Hope says that the test is not to be exploited by local housing authorities; it must be applied reasonably and proportionately [28].
+Lord Kerr, dissenting, says that section 176 requires a local housing authority to accommodate a homeless family in the same unit of accommodation.
+The accommodation must be of a character that will allow all members of the family to live within it [34].
+Lord Kerr concludes that the words together with in section 176 imply joint occupation of the same unit of accommodation [32, 33].
+He takes the view that sufficient proximity is very different from living together [35].
diff --git a/UK-Abs/test-data/summary/full/uksc-2011-0196.txt b/UK-Abs/test-data/summary/full/uksc-2011-0196.txt
new file mode 100644
index 0000000000000000000000000000000000000000..1884a9c0529df8b2daff90611d6a464df8760e62
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2011-0196.txt
@@ -0,0 +1,27 @@
+In 2005, the Assets Recovery Agency (ARA) obtained an interim receiving order over certain properties acquired by Mrs Szepietowskis husband with money allegedly obtained through drug trafficking, mortgage fraud and concealment from the Revenue.
+In November 2006, the ARA began civil proceedings against Mr and Mrs Szepietowski (the Szepietowskis), seeking to confiscate 20 properties on the basis that they constituted recoverable property within section 266 of the Proceeds of Crime Act 2002 (the 2002 Act).
+These properties included Ashford House (the Szepietowskis home), two properties known as Thames Street, two properties known as Church Street, and two properties known as Claygate.
+These properties were all registered in the name of Mrs Szepietowski and had been charged to RBS for a debt of about 3.225m (the RBS debt).
+On 16 January 2008, the Szepietowskis and the ARA settled the proceedings on terms contained in documents attached to a consent order (including a Settlement Deed).
+Pursuant to the terms of the Settlement Deed, (a) Thames Street and Church Street were sold and the proceeds paid over in part satisfaction of the RBS debt, and (b) in September 2009, Mrs Szepietowski granted a charge over Claygate (the 2009 Charge) to the Serious Organised Crime Agency (SOCA, as the ARA had by this point become) entitling SOCA to recover a sum of up to 1.24m from the proceeds of sale of Claygate.
+The 2009 Charge (a) was a second charge over Claygate as it was subject to the RBS debt, and (b) contained various provisions including a statement that Mrs Szepietowski had no personal liability to pay any money to SOCA.
+In late 2009, Mrs Szepietowski sold Claygate for 2.44m and, once the net proceeds of sale of Claygate had been used to pay off the RBS debt, all that was left to satisfy SOCAs rights under the 2009 Charge was 1,324.16.
+SOCA then sought to invoke the right to marshal against Ashford House.
+The right to marshal classically applies when there are two or more creditors, each of whom is owed a debt by the same debtor, but one of whom has security in the form of a charge on more than one property (the first mortgagee), whilst the other has security in the form of an inferior charge on only one of those properties (the second mortgagee).
+If the first mortgagee chooses to enforce his charge against the property which secures both debts (the common property), the second mortgagee is able to enforce his charge against the property which only secured the first mortgagees debt (the other property).
+SOCA argued that, as the proceeds of sale of Claygate (the common property, which was subject to the charge in favour of RBS and the 2009 Charge in favour of SOCA) were used to pay off what was due to RBS, it was entitled under the marshalling principle to look to Ashford House (the other property, which was only subject to the charge in favour of RBS), in order to obtain payment of the sum which it would have obtained on the sale of Claygate if RBS had sold Ashford House and used the proceeds of sale to clear the RBS debt.
+Mrs Szepietowski argued that SOCA should not be allowed to marshal because (a) the 2009 Charge did not secure a debt from her to SOCA and/or (b) the provisions of the Settlement Deed
+and the 2009 Charge, coupled with the circumstances in which they were executed, demonstrated that marshalling was precluded.
+Henderson J held that SOCAs marshalling claim was well founded ([2010] EWHC 2570 (Ch)) and the Court of Appeal agreed ([2011] EWCA Civ 856).
+The Supreme Court unanimously allows the appeal by Mrs Szepietowski.
+Lord Neuberger, with whom Lord Sumption and Lord Reed agree, holds that the 2009 Charge did not create, or acknowledge the existence of, any debt from Mrs Szepietowski, or anyone else, to SOCA, save that under its terms, she was bound to pay SOCA an amount of up to 1.24m out of such sum if any, as remained from the proceeds of sale of Claygate after any prior claim had been met [40 43].
+As a matter of principle, marshalling is not available to a second mortgagee where the common property does not secure a debt due from the mortgagor, but is merely available as security for whatever amount the second mortgagee can extract from that property.
+In such a case, there is nothing from which the right to marshal against the other property can arise [46 50].
+Not least because marshalling is an equitable remedy, whether it is available in any particular case may depend on the circumstances.
+However, where there is no surviving debt due from the mortgagor to the second mortgagee after the sale and distribution of proceeds of sale of the common property, in the absence of express words which permit or envisage marshalling, it is hard to conceive how marshalling would be available [56 58].
+If, contrary to this conclusion, marshalling is in principle available to a second mortgagee where there is no underlying debt, Mrs Szepietowskis appeal would still have been allowed.
+Where facts arise which potentially give rise to the right to marshal, the correct approach is to ask whether, in the perception of an objective reasonable bystander at the date of the grant of the second mortgage, taking into account (i) the terms of the second mortgage, (ii) any contract or other arrangement which gave rise to it, (iii) what passed between the parties prior to its execution, and (iv) all the admissible surrounding facts, it is reasonable to conclude that the second mortgagee was nonetheless not intended to be able to marshal [60 62].
+The statutory background to, and the terms of, the 2009 Charge and of the Settlement Deed, coupled with all the surrounding circumstances demonstrate that the parties did not intend SOCA to have the right to marshal [64 72].
+The fact that Ashford House was Mrs Szepietowskis home is one of the relevant background facts for that purpose, but it was insufficient on its own to prevent a right to marshal if such a right otherwise existed.
+Where the requirements of the right to marshal are otherwise present, it would require a contractually enforceable obligation, or something close thereto, on the first mortgagee to enforce against the common property in priority to the other property, for the second mortgagee to lose the right to marshal [73 77].
+Lord Carnwath and Lord Hughes would allow the appeal on the narrower basis, namely that, read against the statutory background provided by the 2002 Act, and the fact that the 2009 Charge excluded any personal liability on the part of Mrs Szepietowski, that Charge impliedly excluded recourse to any source for payment other than those identified, and in particular excluded the right to marshal.
diff --git a/UK-Abs/test-data/summary/full/uksc-2011-0233.txt b/UK-Abs/test-data/summary/full/uksc-2011-0233.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e3f2515921751ad5ba4e9cc5899a6b60ad2cc32f
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2011-0233.txt
@@ -0,0 +1,39 @@
+The question in this appeal is whether there is a requirement for the prosecution to prove a defendant had an absence of belief that the person they were having sexual intercourse with was over the age of 13, before they can be convicted of an offence of unlawful carnal knowledge of a girl under the age of 14.
+The appellant, who was 17 years old at the time, had sexual intercourse with a 13 year old girl.
+Initially the girl informed her mother of this fact but told her the intercourse had not been consensual.
+The appellant was arrested.
+Subsequently however, the girl withdrew the allegation and admitted the sex had been consensual.
+As a result, the appellant was charged with the offence of having unlawful carnal knowledge of a girl under the age of 14 contrary to section 4 of the Criminal Law Amendment Acts (Northern Ireland 1885 1923) (the 1885 Act) a serious offence that carries a maximum of life imprisonment.
+The appellant was represented and pleaded guilty to the charge at Belfast Crown Court in 2004.
+He was sentenced to 3 years detention in a Young Offenders Centre, suspended for 2 years.
+He had pleaded guilty on the understanding that it was no defence to a charge under section 4 for the defendant to show he believed the girl was over the age of 13.
+Following his conviction the appellant received advice from different solicitors and launched an appeal, arguing that the Crown was indeed required to prove that the appellant did not believe the girl was over 13 years old.
+The appellant argued before the Northern Ireland Court of Appeal that section 4 was silent as to such a defence but in view of the legislative history and its seriousness, it must be presumed that there is a mental element to the offence.
+The appellant relied on the general presumption that criminal offences require the prosecution to prove mens rea i.e. some intent on the part of the accused, unless explicitly excluded by the language of the statute or necessarily inferred from the language of the offence.
+Such a presumption is hard to displace, especially in relation to serious offences.
+The Court of Appeal rejected the appellants arguments and held that no defence of reasonable or honest belief existed.
+All that was necessary was for the prosecution to prove the accused had had sex with a girl who was actually under the age of 14.
+The appellant thus appealed to the Supreme Court.
+The Supreme Court unanimously dismisses the appeal.
+Lord Kerr gives the judgment of the court.
+A clearly discernible historical trend of increasing the age at which liability for more serious offences is incurred, while reducing the sentence imposed, can be detected [3].
+Section 4 as originally enacted referred to unlawful carnal knowledge of a girl under 13 years old.
+This was amended to 14 years by the Children and Young Persons (Northern Ireland) Act 1950 (the 1950 Act).
+Section 5 of the 1885 Act created the same offence in relation to a girl between the ages of 13 15.
+Section 5 and section 6 (permitting defilement on premises) contained provisos that it would be a defence to show that the accused reasonably believed the girl was of or above the age of 16 years.
+Such defences were abolished by section 2 of the Criminal Law (Northern Ireland) Amendment Act 1923, as amended by section 140 of the 1950 Act.
+Section 5 thus referred to any girl under 17 years old, with an express prohibition of any defence of reasonable belief that she was 17 or older.
+No such type of defence has ever been explicitly provided in any version of section 4 [7 13].
+The constitutional principle that mens rea is presumed to be required in order to establish criminal liability is a strong one.
+It is not to be displaced in the absence of clear statutory language or unmistakably necessary implication.
+Where the statutory offence is grave and carries a heavy penalty or a substantial social stigma, the case is enhanced against implying that mens rea of any ingredient of the offence is not needed [26].
+One must at least begin with an examination of what the legislative intention was before considering whether modification of that intention is justified by later amendments or contemporary social contexts [31].
+There can really be no doubt that the section in its original form was intended to impose criminal liability for carnal knowledge of a female under the age of 14 without proof that the perpetrator knew or had reason to believe that she was below that age.
+The decision in R v Prince (1875) LR 2 CCR 154 10 years prior to the 1885 Act confirmed that proof of knowledge or lack of reasonable belief in the age of the victim was not required under section 51 of the Offences Against the Person Act 1861.
+This formed the crucial backdrop to the 1885 Act.
+The juxtaposition of sections 5 and 6 of the 1885 Act, which originally contained a defence of reasonable belief, with section 4 make it clear that no such defence was to be provided for under the latter section [32].
+It would be anomalous if the subsequent removal of the defence from sections 5 and 6 meant that it should be implied into section 4 to which it had not previously applied [34].
+While the amended legislation is to be construed in its revised form, it does not follow that its antecedent history has to be entirely left out of account.
+To suggest that the removal of the defence under sections 5 and 6 would have the effect of introducing it under section 4 by implication takes contrivance too far [36].
+The policy approach of protecting younger females by ensuring that a defence of reasonable belief should not be available has been unswerving.
+Further, there is nothing in the contemporary social context which militates against the denial of the defence of belief as to age for section 4 offences [37 38].
diff --git a/UK-Abs/test-data/summary/full/uksc-2011-0244.txt b/UK-Abs/test-data/summary/full/uksc-2011-0244.txt
new file mode 100644
index 0000000000000000000000000000000000000000..acd6f8b362fd23123d49ea57d565f7442bd76c98
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2011-0244.txt
@@ -0,0 +1,30 @@
+On 20 December 2010, the Financial Services Authority (FSA), acting in pursuance of its public duties under sections 3 to 6 of the Financial Services and Markets Act 2000 (FSMA), made a without notice application for a freezing injunction against Sinaloa Gold and PH Capital Invest under section 380(3) of FSMA.
+The FSA alleged that both companies were involved in promoting the sale of shares in Sinaloa without proper authorisation and an approved prospectus and that PH Capital Invest had breached FSMA in various other respects.
+Schedule B to the injunction stated that the FSA gave no cross undertaking in damages.
+However, under Schedule B, the FSA undertook to cover both costs and losses incurred by third parties as a result of the injunction.
+The undertaking in respect of third party losses was inadvertent and the FSA applied to have it removed.
+Barclays with whom Sinaloa Gold plc had six bank accounts intervened to oppose this application.
+The application to have the undertaking removed was refused in the High Court.
+However, this decision was reversed in the Court of Appeal.
+The effect of the Court of Appeals decision was to preserve the undertaking in respect of third party costs but eliminate the undertaking in respect of third party losses.
+Barclays appealed to the Supreme Court.
+The Supreme Court unanimously dismisses the appeal.
+There is no general rule that an authority such as the FSA, acting pursuant to a public law duty, should be required to give a cross undertaking in respect of losses incurred by third parties.
+Further, there are no particular circumstances which mean that the FSA should be required to give such a cross undertaking on the facts of this case.
+The judgment of the Court is given by Lord Mance.
+Whilst there is no continuing justification for the former blanket practice whereby the Crown was not required to give a cross undertaking in any circumstances, a general distinction still exists between private claims and law enforcement actions [33].
+In a private claim, a claimant seeking an injunction will ordinarily be expected to give a cross undertaking in damages to the defendant(s) and to third parties.
+This can be justified on the basis that such a claimant should be prepared to back its own interest with its own assets against the event that it obtains the injunction unjustifiably with the result that harm is caused to the interest of another [30].
+However, different considerations arise in relation to law enforcement actions, where a public authority is seeking to enforce the law in the interests of the public generally, often in pursuance of a public duty to do so, and enjoys only the resources which have been assigned to it for its functions [31].
+In these circumstances public authorities cannot generally be expected to back their legal actions with the public funds with which they are entrusted for the purpose of undertaking their functions [33].
+Such a requirement may inhibit public officials from fulfilling their public duties for fear of exposing public funds to claims for compensation.
+The position regarding the giving of any cross undertaking cannot differ according to whether it is intended to protect a defendant or a third party [14, 34].
+In both instances the cross undertaking covers the loss caused by the grant of an injunction in circumstances where the person incurring the loss is essentially innocent [34].
+A pragmatic distinction can be drawn between an undertaking in respect of costs and an undertaking in damages.
+Public authorities should be able to enforce the law without being inhibited by the fear of cross claims and the exposure of their resources, and this applies with particular force to any open ended undertaking in respect of third party loss.
+It does not apply with the same force to a more limited cross undertaking in respect of third party costs [35].
+There are no special circumstances why the FSA should be required to give a cross undertaking in respect of losses suffered by third parties on the particular facts of this case.
+In a case such as the instant one, where the FSA takes positive action to shut down allegedly unlawful activity, it does not in the course of so doing assume any responsibility towards or liability for breach of a duty of care enforceable at the instance of third parties [37 38].
+The FSA enjoys a further power to freeze the assets of a permitted person, without making any application to a court, under Part IV of the FSMA.
+In the exercise of its powers under Part IV the FSA is excluded from any risk of liability by virtue of paragraph 19 of Schedule 1 to FSMA.
+There would therefore be an apparent imbalance were the FSA required to accept potential liability in cases such as the instant one concerned with the activities of unauthorised persons [37 38].
diff --git a/UK-Abs/test-data/summary/full/uksc-2011-0260.txt b/UK-Abs/test-data/summary/full/uksc-2011-0260.txt
new file mode 100644
index 0000000000000000000000000000000000000000..2b2ba7a75fc6954f2a27c699382ad752f59d6852
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2011-0260.txt
@@ -0,0 +1,31 @@
+These appeals raise questions of some significance arising out of the interrelationship of the statutory schemes relating to the protection of employees pensions and to corporate insolvency.
+In order to protect employees from the adverse consequences of an under funded occupational pension scheme, the Pensions Act 2004 (the 2004 Act) introduced a financial support direction (FSD) regime.
+This enables the Pensions Regulator in specified circumstances (i) to impose, by the issue of an FSD to some or all of the other group companies (known as targets), an obligation to provide reasonable financial support to the under funded scheme of the service company or insufficiently resourced employer, and (ii) to deal with non compliance with that obligation by imposing, through a Contribution Notice (a CN), a specific monetary liability payable by a target to the trustees.
+Many UK registered members of the Lehman group of companies and of the Nortel group of companies have gone into insolvent administration.
+One of those Lehman group companies entered into service contracts with, and ran a pension scheme for the benefit of, employees who worked for other group members.
+The Nortel group included a company which had a pension scheme, and which was insufficiently resourced to fund that scheme.
+The pension scheme (the Scheme) in each case was a final salary scheme, which appears to be, and to have been for some time, in substantial deficit.
+The Pensions Regulator subsequently initiated machinery under the 2004 Act to require certain other group members the target companies to provide financial support for the Scheme.
+That machinery has been held up so it can be decided how the administrators of a target company should treat that companys potential liability under the FSD regime (in due course the liability under a CN) in a case where the FSD is not served until after the company has gone into administration (or into insolvent liquidation).
+Specifically, would the liability under such a requirement rank (a) as an expense of the targets administration, (b) pari passu (i.e. equally) with the target companies other unsecured creditors, or (c) as neither? Under option (a) the liability would rank ahead of the unsecured creditors, and may well be paid in full; under option (b) it would rank equally with those creditors; under option (c) it would rank behind them, and would probably be worthless.
+Briggs J and the Court of Appeal concluded that option (b) was not open to them, and preferred option (a) to option (c).
+The Supreme Court considers option (b) to be correct, and unanimously allows the appeals to the extent of declaring that a targets liability under the FSD regime, arising pursuant to an FSD issued after the company has gone into administration, ranks as a provable debt of the company, and does not rank as an expense of the administration.
+Lord Neuberger gives the main judgment of the Court, with which Lord Mance, Lord Clarke and Lord Toulson agree.
+Lord Sumption gives a short concurring judgment, with which Lord Mance and Lord Clarke agree.
+The potential liability as a result of an FSD issued after the commencement of an administration or an insolvent liquidation (an insolvent event) can constitute a provable debt within rule 13.12 of the Insolvency Rules 1986 (SI 1925/1986) (the Insolvency Rules).
+Whilst the potential FSD regime liabilities in the present cases do not fall within rule 13.12(1)(a) [68] [71], they fall within rule 13.12(1)(b) [83].
+It is common ground that if a CN had been issued in respect of a target before an insolvent event, it would give rise to a provable debt.
+The courts below considered that, if a CN were issued after an insolvent event, it would give rise to a provable debt if it was based on an FSD issued before the insolvent event.
+It appears somewhat arbitrary that the characterisation and treatment of the liability under the FSD regime should turn on when the FSD or CN happens to have been issued, if it is based on a state of affairs which existed before the insolvent event [59].
+The courts below felt constrained by a consistent line of authority from reaching the conclusion the Supreme Court has reached, although it appears that they would have so held if they had felt able to do so [56].
+These earlier authorities can be overruled: the judgments are very short of reasoning, are inconsistent with another line of authority, and were decided at a time when the legislature and the courts were less anxious than currently for an insolvency to clear all the liabilities of a bankrupt (as they were all concerned with individual insolvencies) [87] [94].
+There is no doubt that the liability which is imposed on a target on the issuing of an FSD after an insolvent event is a liability for the purposes of rule 13.12(1)(b), as it is a liability under an enactment within rule 13.12(4).
+The question is, however, whether it can be said to be a liability which arose by reason of any obligation incurred before the insolvent event [72].
+That issue centres on the meaning of the word obligation in rule 13.12(1)(b) [74].
+At least normally, in order for a company to have incurred a relevant obligation under rule 13.12(1)(b), it must have taken, or been subjected to, some step or combination of steps which (a) had some legal effect (such as putting it under some legal duty or into some legal relationship), and which (b) resulted in it being vulnerable to the specific liability in question, such that there would be a real prospect of that liability being incurred.
+If these two requirements are satisfied, it is also relevant to consider (c) whether it would be consistent with the regime under which the liability is imposed to conclude that the step or combination of steps gave rise to an obligation under rule 13.12(1)(b) [77].
+In these appeals, all these requirements are satisfied, and accordingly the relevant obligation arose before the target companies went into administration.
+Given that the potential FSD liability in each of these cases is a provable debt within rule 12.3 of the Insolvency Rules, and therefore it would not be an expense, it is strictly unnecessary to consider whether the liability under an FSD served after an insolvent event would be a liquidation expense, if, as the courts below held, it was not a provable debt [97].
+However, given that this issue was fully debated before the Court, and is one of some potential importance, the Court concludes that, if the liability did not rank as a provable debt, it would not count as an expense of the administration [98] [114].
+The Court also concludes that if it had taken a different view on the provable debt issue, it would not have held that it had a residual discretion to direct the administrator of a target company to accord to the potential liability under the FSD regime a higher ranking than it would be given under the relevant legislation [115] [127].
+Lord Sumption adds some observations about the limitations on what constitutes an obligation incurred for the purpose of rule 13.12(1)(b) of the Insolvency Rules [129] [136].
diff --git a/UK-Abs/test-data/summary/full/uksc-2012-0007.txt b/UK-Abs/test-data/summary/full/uksc-2012-0007.txt
new file mode 100644
index 0000000000000000000000000000000000000000..343384c0dcfd8dad50cee5aa85556322ece79250
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2012-0007.txt
@@ -0,0 +1,35 @@
+The issue in the appeal is: what are the statutory consequences if the fingerprints of a defendant have been taken in a police station in Northern Ireland by an electronic device for which the legislation required approval from the Secretary of State, when such approval has never been given? In particular, is any evidence which makes use of the fingerprints taken on such a device inadmissible at the defendants trial? The appellants were charged with theft in Northern Ireland.
+The offence was alleged to have taken place on 6 October 2007.
+A stack of building materials had been found removed from the owners depot apparently ready for collection by thieves.
+The appellants were found nearby in a van but said they were waiting there innocently.
+They were arrested and their fingerprints were taken at the police station using an electronic fingerprint scanner called Livescan.
+This machine has been commonly used by police in the UK, including in Northern Ireland, for a number of years.
+A fingerprint matching Elliotts left thumb was found on packaging of the building materials.
+Article 61 of the Police and Criminal Evidence (Northern Ireland) Order sets out the powers of the police to take fingerprints without consent.
+Between 1 March 2007 and 12 January 2010 article 61(8B) provided that where a persons fingerprints are taken electronically, they may only be taken using such devices, as the Secretary of State has approved for the purpose of electronic fingerprinting.
+Due to an oversight no approval was ever given to any device (including Livescan) until it was belatedly provided on 29 March 2009.
+Article 61(8B) was later repealed by the Policing and Crime Act 2009.
+Therefore at the time the fingerprints were taken from the appellants there was no approval for the Livescan machine in breach of article 61 (8B).
+The appellants were convicted at trial and no issue over the fingerprints was taken.
+After the lack of approval for the Livescan device was noticed the appellants appealed to the County Court which, after a full re hearing, declared the fingerprint evidence inadmissible and acquitted the appellants.
+The Public Prosecution Service appealed to the Court of Appeal who allowed the appeal and reinstated the appellants convictions.
+The appellants primary argument before the Supreme Court and the courts below was that the lack of approval for the Livescan device meant that the fingerprints obtained with it were automatically inadmissible at the appellants trial.
+The Supreme Court dismisses the appeal.
+Lord Hughes gives the judgment of the court.
+The difficulty with the appellants argument is that the statute says nothing about the potential consequences of failure to use an approved device.
+This is despite the fact that there are numerous examples of other statutes where such consequences are expressly spelled out, such as in relation to obtaining specimens of breath for road traffic offences [8].
+There is a well understood common law rule that evidence which has been obtained unlawfully does not automatically become inadmissible.
+It is clear that this rule extends equally to evidence created by an unlawful process as it does to existing material uncovered by unlawful process.
+The common law background to the legislation (article 61 (8B)) shows that inadmissibility of the fingerprints here under consideration cannot possibly simply follow from the existence of the requirement for device approval [9].
+It is not correct to say that article 61 (8B) would have no purpose unless fingerprints obtained from unapproved devices were inadmissible at trial.
+A defendant who was asked to give a fingerprint on an unapproved device could lawfully refuse to do so.
+While, if such devices were found to be routinely in use by police, there would be no defence to an application for judicial review in which their unlawfulness could be declared and further use prohibited [10].
+The appellants relied on the rule that the product of a breathalyser test was inadmissible unless the testing device was an approved one.
+However, the requirement for approval of fingerprint devices is not analogous to that in cases of breath tests or speed guns.
+The latter are methods of measuring something that cannot be re measured, they capture a snapshot of the suspects activity and are often the offence itself i.e. being found to be over the prescribed limit of alcohol at the time of driving.
+The fingerprints on the other hand could be reproduced at any time afterwards, and would be the same.
+If the Livescan readings were disputed they could readily be independently checked for accuracy and further fingerprints taken by a different method.
+The ease of which this could be done shows there was no need for Parliament to stipulate that the product of unapproved fingerprint readers should be inadmissible.
+Further, no challenge was ever made by the appellants to the accuracy of the fingerprints taken by the Livescan device [15].
+The background material to the legislation shown to the Court further shows that the purpose of the requirement for device approval was not principally the protection of the individual against the risk of conviction on inaccurate evidence [16].
+Relevant parts of the Protection for Freedoms Act 2012 and Criminal Justice (Northern Ireland) Act 2013 regarding fingerprints that have yet to come into force further support the construction of the legislation chosen by the Supreme Court in this case as, where required, express provision is made for evidence to be inadmissible [18].
diff --git a/UK-Abs/test-data/summary/full/uksc-2012-0025.txt b/UK-Abs/test-data/summary/full/uksc-2012-0025.txt
new file mode 100644
index 0000000000000000000000000000000000000000..53df609f2fecf1f34dfc25bd56aba9e7b3987c12
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2012-0025.txt
@@ -0,0 +1,19 @@
+Lord Reed begins by questioning whether the way the case has been approached by the courts below and in the parties printed cases is correct [5 7].
+Instead of viewing the representation as an event whose legal consequences were fixed at the time when the statement was made, Lord Reed concludes that the case in fact concerns a continuing representation capable of remaining in effect until the contract is concluded [31].
+The representation contained in the critical email was undoubtedly of a continuing nature so long as Mr Erskine remained the prospective contracting party [24].
+In principle, the possibility that a representation may continue to be asserted, and may have a causative effect so as to induce the conclusion of a contract, is not necessarily excluded where, as here, the contracting parties are not the original representor and representee.
+The inference can be drawn from the parties conduct that they proceeded with the negotiation and conclusion of the contract on the basis that the accuracy of the representation continued to be asserted by the representor, implicitly if not expressly, after the identity of the prospective contracting party had changed.
+In such circumstances, the representation could continue to have a causative effect, so as to induce the conclusion of the contract [25].
+Where the inference to be drawn is that a representation continued to be made until the contract was concluded, it may also be inferred that the risk of harm being suffered as a result of reliance upon it, in the event that it was inaccurate, continued to be foreseeable.
+In such circumstances, the representor may be taken to have assumed responsibility for the accuracy of the representation towards the contracting party who relied upon it, even where he is not the original representee [26].
+Just as a representation may continue up to conclusion of the contract when made by a companys agent prior to the commencement of his agency, it may have the same effect where the person to whom it is addressed becomes the agent of the contracting party [27 28].
+In this case, the negotiations simply continued after it became apparent that an LLP was to be used as the vehicle for Mr Erskines investment.
+Neither party drew a line under the previous discussions, disclaimed what had previously been said or sought assurance that it could be relied upon as between the contracting parties [30].
+In continuing and concluding the contractual negotiations with Cramaso, through its agent Mr Erskine, without having withdrawn the representation earlier made to him as an individual, the respondents by their conduct implicitly asserted to Cramaso the accuracy of that representation.
+It continued to be foreseeable that the representation would induce the other party to the negotiations to enter into a contract.
+The respondents therefore assumed a responsibility towards Cramaso for the accuracy of the representation and owed it a duty of care, which they failed to fulfil [31].
+Cramaso is entitled to recover damages for any loss suffered as a result, under section 10 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 [32 43].
+In a concurring judgment, Lord Toulson rejects the respondents argument that it was necessary for Cramaso to show that, at the time of the critical email, Mr Lewis knew or ought to have known that there was a high degree of probability that Mr Erskine would be sent the email and would rely upon it.
+The situation where a statement is made by one party to another, who in turn relies upon it in entering a contract with a third party is different to the present situation, where a statement was made during contractual negotiations by one prospective party to another in relation to the very transaction about which they were negotiating [51].
+Lord Toulson agrees with Lord Reed that the fact the representation was negligent rather than fraudulent does not affect its continuing nature; what matters is its continuing potency as an inducing factor [63].
+The case will have to return to the Court of Session for further procedure in relation to remedies [44].
diff --git a/UK-Abs/test-data/summary/full/uksc-2012-0072.txt b/UK-Abs/test-data/summary/full/uksc-2012-0072.txt
new file mode 100644
index 0000000000000000000000000000000000000000..2b35f8efee93983434e5fd841c9c0c6ed0d54813
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2012-0072.txt
@@ -0,0 +1,45 @@
+Where an application for a European Arrest Warrant (EAW) is made, and the defendant has been convicted and sentenced in the requesting state, section 2(6)(e) of the Extradition Act 2003 (the Act) requires the EAW to include particulars of the sentence(s) imposed.
+This enables the requested court to determine whether the sentence is equal to or exceeds the minimum sentence required to constitute an extradition offence.
+Section 65(3)(c) of the Act applies to offences in the requesting state which would constitute an offence in the UK if it occurred there, provided that a minimum sentence of four months was imposed.
+Many EU states provide for the aggregation of successive sentences imposed on different occasions to produce a single sentence for all of the offences committed, which usually has the effect of reducing the overall period of imprisonment.
+Earlier case law establishes that where each of the original sentences is for conduct that satisfies all the other requirements of an extradition offence, it is enough for a EAW to specify the cumulative sentence rather than all of the individual sentences.
+This appeal concerns the converse: what happens if a EAW specifies only the original sentences, but after it has been issued they are aggregated and their totality reduced? Lukasz Zakrzewski was convicted on four occasions in Poland of various offences of dishonesty or violence.
+His sentences were initially suspended and then activated by further offences or breaches of probation terms.
+On 24 February 2010, Mr Zakrzewski having absconded, the Regional Court in Lodz issued a EAW against him based on these four convictions specifying the sentences passed.
+He was then arrested in England on 28 September 2010 and brought before the City of Westminster Magistrates Court the same day.
+However, as he was facing further criminal charges in England, the extradition proceedings were adjourned.
+During this adjournment, Mr Zakrzewski applied to the District Court of Grudziadz in Poland to have the four sentences aggregated.
+The court duly aggregated them and on 19 April 2012 imposed a cumulative sentence of 22 months imprisonment (as opposed to the aggregate of 45 months of the original sentences).
+When the extradition proceedings resumed, Mr Zakrzewski claimed that the aggregation order meant the EAW was no longer gave the particulars required by s.2(6)(e) because the only relevant sentence now included was the cumulative sentence.
+The warrant was therefore invalid, and no longer gave proper, fair or accurate particulars.
+District Judge Rose rejected Mr Zakrzewskis arguments and granted an extradition order.
+However, this was overturned by Lloyd Jones J in the High Court on the basis that the EAW must relate to the current operative sentence in force not to earlier individual ones subsumed in an aggregated order to enable the requested court to know the length of imprisonment the requesting state had ordered.
+The Regional Court in Lodz appealed to the Supreme Court.
+The Supreme Court unanimously allows the appeal and restores the extradition order of District Judge Rose.
+Lord Sumption gives the judgment of the Court.
+Just before this judgment was due to be delivered, the Court was informed that Mr. Zakrzewski had returned voluntarily to Poland after the argument on the appeal and been arrested there.
+Accordingly, the warrant has been withdrawn by the court which issued it.
+This does not affect the issue which the Court has to decide.
+But it does mean that, formally, the appeal must now be dismissed: see section 43(4).
+The purpose of the European Council Framework Decision 2002/584/JHA of 13 June 2002 (the Framework Decision) and Part 1 of the Act was to create a simplified and accelerated procedure based on mutual recognition [7].
+The courts of states being asked to consider EAWs should generally take information contained in them at face value.
+An EAWs validity depends on whether the prescribed particulars are found in it, not on whether they are correct.
+A defendant cannot normally challenge its validity by reference to extraneous evidence.
+If this is true of information in an EAW which was wrong at the time of issue, it is true for information which was correct at the time of issue but ceased to be correct due to subsequent events.
+A EAW is either valid or not valid.
+It cannot change over time [8].
+It does not follow that nothing can be done to correct prescribed particulars that have become incorrect but the remedy must be at the stage when the court is deciding whether to extradite [9].
+Lord Sumption drew attention to two safeguards against unjustified extradition in this context.
+The first was mutual trust between parties to the Framework Decision to ensure information in a EAW is true.
+The requesting authority has the right to forward additional information at any time and the requested UK authority has the right to receive it and to request further information [10].
+The second safeguard is the courts inherent right to ensure its process is not abused, for example, where an EAW has been obtained for improper purposes [11].
+A court can question statements made in EAW on the grounds of an abuse of process.
+However, Lord Sumption noted that: (a) this jurisdiction is exceptional; (b) the facts needed to correct the error must be beyond legitimate doubt and abuse of process must not become an indirect way of challenging the factual basis of conduct alleged in a EAW; (c) the error must be material to the operation of the statutory scheme.
+It is inconsistent with the Framework Decision to refuse to execute a EAW, in which the prescribed particulars were included, because of immaterial errors [13].
+In the present case, the EAW was valid when it was issued to Mr Zakrzewski.
+It did not become invalid when the aggregation order was made.
+The particulars of sentence were no longer complete but they were not wrong.
+The evidence is that in Polish law the original sentences remain valid but the cumulative one determines what period of imprisonment will be treated as satisfying them [14].
+The fact that the imprisonment period which would satisfy the four original sentences was shortened was immaterial, as even the shorter sentences were longer than the minimum of 4 months required for disclosing an extradition offence under the Act [15].
+The sentence of the court will rarely be the current operative sentence since the period to be served will be affected by factors such as remission or parole as well as aggregation.
+Criminal procedures vary from one jurisdiction to another without affecting the ordinary criteria for extradition or undermining the purpose of the Framework Decision or Part I of the Act [16].
diff --git a/UK-Abs/test-data/summary/full/uksc-2012-0109.txt b/UK-Abs/test-data/summary/full/uksc-2012-0109.txt
new file mode 100644
index 0000000000000000000000000000000000000000..f57c8570bb965945fa852f20b1d2ca402d49c170
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2012-0109.txt
@@ -0,0 +1,57 @@
+Mr and Mrs Stott decided to take a holiday in Zante, Greece, in September 2008.
+Mr Stott is paralysed from the shoulders down and a permanent wheelchair user.
+He has double incontinence and uses a catheter.
+When travelling by air, he depends on his wife to manage his incontinence, help him to eat, and change his sitting position.
+Mr Stott booked return flights with Thomas Cook Tour Operators Ltd (Thomas Cook), a tour operator and air carrier.
+He telephoned Thomas Cooks helpline twice, informing them that he had paid to be seated with his wife, and was assured that this would happen.
+However, on arrival at check in for the return journey, Mr and Mrs Stott were told that they would not be seated together.
+They protested, but were eventually told that the seat allocations could not be changed.
+Mr Stott had difficulties in boarding the aircraft, and was not sufficiently assisted by Thomas Cook staff.
+He felt extremely embarrassed, humiliated, and angry.
+He was eventually helped into his seat, with his wife sitting behind him.
+This arrangement was problematic, since Mrs Stott could not properly assist her husband during the three hour and twenty minute flight.
+She had to kneel or crouch in the aisle to attend to his personal needs, obstructing the cabin crew and other passengers.
+The cabin crew made no attempt to ease their difficulties.
+Mr Stott, assisted by the Equality and Human Rights Commission, brought a claim under the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007 (SI 2007/1895) (the UK Regulations), which implement EC disability rights regulations (the EC Regulations).
+The UK Regulations enable civil proceedings in UK courts for breaches of the EC Regulations, and state that compensation awarded may include sums for injury to feelings.
+The EC Regulations require Community air carriers (among other things) to make reasonable efforts to provide accompanying persons with a seat next to a disabled person.
+Mr Stott claimed that Thomas Cook had breached this duty, and sought a declaration and damages for injury to his feelings.
+Thomas Cook argued that it had made reasonable efforts and that the Montreal Convention (the Convention), an international treaty which governs the liability of air carriers in international carriage by air, precluded a damages award for injury to feelings.
+Under Articles 17 and 29 of the Convention, damages can only be awarded for harm to passengers in cases of death or bodily injury.
+The judge at trial found that Thomas Cook had breached the UK Regulations, and made a declaration to that effect.
+However, he held that the Convention prevented him from making any damages award to Mr Stott.
+The Court of Appeal agreed.
+Mr Stott appealed, arguing that his claim was (i) outside the substantive scope of the Convention, since the Convention did not touch the issue of equal access to air travel which are governed by the EC Regulations and (ii) outside the temporal scope of the Convention, since Thomas Cooks failure to make all reasonable efforts began before Mr and Mrs Stott boarded the aircraft.
+He relied on EU cases discussing a different EU Regulation which required compensation and assistance for
+passengers in the event of cancellations and delays: the European Court had held that this Regulation was not incompatible with the Convention.
+The Secretary of State for Transport intervened to support Mr Stotts claim on the second (temporal) ground.
+The Supreme Court unanimously dismisses the appeal.
+The judgment of the Court is given by Lord Toulson, with a concurring judgment by Lady Hale.
+Mr Stott was treated in a humiliating and disgraceful manner by Thomas Cook.
+However, his claim falls within the substantive and temporal scope of the Convention, and as a result damages cannot be awarded for injury to feelings.
+Substantively, the Convention deals comprehensively with the carriers liability for physical incidents involving passengers between embarkation and disembarkation.
+The fact that Mr Stotts claim involves an EU law right makes no difference.
+Temporally, Mr Stotts claim is for damages and distress suffered in the course of embarkation and flight, and these fall squarely within the temporal scope of the Convention.
+It is not enough that the operative causes began prior to boarding.
+The only true question in the case is whether Mr Stotts claim falls within the scope of the Montreal Convention.
+There is no dispute between Mr Stott and Thomas Cook as to the interpretation of the EC Regulations or UK Regulations, or their compatibility with the Convention.
+The EU cases do not assist: that other Regulation concerned general standardised measures, and the European Court had recognised that any claim for individualised damages would be subject to the Convention.
+The case raised no question of European law [54 59].
+On substantive scope: the Convention was intended to deal comprehensively with the liability of the air carrier for whatever might physically happen to passengers between embarkation or disembarkation.
+The fact that Mr Stotts claim relates to disability discrimination makes no difference.
+The underlying difficulty is that the Montreal Convention and its predecessors long pre dated equality laws.
+It is unfair that someone suffering as Mr Stott had could not obtain any compensation, but that is the plain meaning of the Convention.
+It would be desirable for the states parties to the Convention to consider its amendment.
+It is also possible that the Civil Aviation Authority could take other enforcement actions against Thomas Cook [61 64].
+On temporal scope: the operative causes of Mr Stotts treatment undoubtedly began at check in, prior to embarkation.
+However, this is not enough.
+Mr Stotts claim is for damages for the humiliation and distress that Mr Stott had suffered during the course of the flight, which fall squarely within the Convention period of exclusivity.
+To hold otherwise would encourage deft pleading and would circumvent the purpose of the Convention [60].
+In her concurring judgment, Lady Hale considers it disturbing that the Convention excludes damages claims for breaches of individuals fundamental rights.
+It is particularly unsettling that this applies not only to private air carriers such as Thomas Cook, but also to state airlines.
+A treaty which contravened a fundamental international law norm would be void.
+Torture is a fundamental norm of this kind, and race discrimination might be another.
+There is a respectable view that Mr Stotts treatment would, under the European Convention on Human Rights, constitute inhuman and degrading treatment (IDT).
+However, it appears that IDT has not yet become a fundamental international law norm.
+Since Thomas Cook is not a state air carrier, these issues do not arise in this case.
+At the very least, however, the grave injustice done to those in Mr Stotts position should be addressed by the parties to the Convention [67 70].
diff --git a/UK-Abs/test-data/summary/full/uksc-2012-0124.txt b/UK-Abs/test-data/summary/full/uksc-2012-0124.txt
new file mode 100644
index 0000000000000000000000000000000000000000..271d6d43f513e6c07c7363909e317511fb3e80bf
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2012-0124.txt
@@ -0,0 +1,33 @@
+The issue in the appeal is whether the definition of terrorism in the Terrorism Act 2000 includes military attacks by non state armed groups against national or international armed forces in a non international armed conflict.
+Mr Gul was convicted by a jury of five counts of disseminating terrorist publications, for which he was sentenced to five years imprisonment.
+The offence was created by section 2 of the Terrorism Act 2006, which defines terrorist publications as including publications which are likely to be understood as a direct or indirect encouragement to the commission, preparation, or instigation of acts of terrorism.
+Terrorism is defined in section 1 of the Terrorism Act 2000, as the use or threat of action, inside or outside the United Kingdom, (a) involving serious violence against a person, involving serious damage to property, endangering another persons life, creating a serious risk to public health or safety, or designed to seriously interfere with seriously disrupt an electronic system; (b) designed to influence a government or intergovernmental organization or to intimidate the public or a section of the public; and (c) made for the purpose of advancing a political, religious, racial, or ideological cause.
+The publications in question included videos which Mr Gul posted on YouTube showing (i) attacks by members of al Qaeda, the Taliban, and other proscribed groups on military targets in Chechnya, and on the Coalition forces in Iraq and in Afghanistan, (ii) the use of improvised explosive devices against Coalition forces, (iii) excerpts from martyrdom videos, and (iv) clips of attacks on civilians, including the 11 September 2001 attack on the United States.
+These videos were accompanied by commentaries praising the bravery, and martyrdom, of those carrying out the attacks, and encouraging others to emulate them.
+The Court of Appeal refused Mr Guls appeal against conviction and sentence.
+His appeal to the Supreme Court was based on a challenge to the conclusion of the Court of Appeal (arising from a direction given by the trial judge following a request from the jury) that the definition of terrorism included military attacks by non state armed groups against national or international armed forces in their territory.
+The Supreme Court unanimously dismisses Mr Guls appeal for reasons contained in a judgment given by Lord Neuberger and Lord Judge, with whom the other members of the Court agree.
+Mr Gul argued that both domestic law and international law required the statutory definition of terrorism to be interpreted narrowly, so as to exclude its application to situations such as those depicted in some of the videos which he had uploaded, namely those involving actions by non state armed troops attacking foreign armed forces in their territory.
+The court addresses this argument first by considering the application of familiar domestic law principles to the statutory definition of terrorism, and then by considering whether that results in a conclusion which has to be adapted to meet those requirements of international law that are incorporated into domestic law [25].
+Applying the familiar domestic law approach to statutory interpretation, the Court holds that there is no basis on which the natural, very wide, meaning of section 1 of the 2000 Act could be read restrictively, as Mr Gul
+argued.
+The definition had clearly been drafted in deliberately wide terms so as to take account of the various and possibly unpredictable forms that terrorism might take, and the changes which may occur in the diplomatic and political spheres [312, 38].
+In reaching this conclusion, the Court considers that section 117 of the 2000 Act, which prohibits the prosecution of most offences under the 2000 and 2006 Acts without the consent of the Director of Public Prosecutions or (in some cases) the Attorney General, is of no assistance [35 37, 42].
+The Court also observes that creating an offence with a very broad reach and then invoking prosecutorial discretion as a means of mitigation is undesirable in principle and should only be adopted if it is unavoidable.
+In these circumstances, the only reason for the Court to interpret the definition more restrictively would be if it conflicted with the European Convention on Human Rights (which was not relied on by Mr Gul) or with the United Kingdoms obligations in international law more generally [38].
+The first aspect of Mr Guls argument here was that the United Kingdoms international obligations require it to define terrorism more narrowly in its criminal laws, as it should have the same meaning as it has in international law.
+The second aspect was that the United Kingdom could not criminalize terrorism happening abroad except so far as international law allowed.
+Both aspects of the international law argument face the insuperable obstacle that there is no accepted definition of terrorism in international law [44].
+The U.N. General Assemblys working group seeking to agree a comprehensive international convention on terrorism, reported in 2012 that there were disagreements as to the precise distinction between terrorism and legitimate struggle of peoples fighting in the exercise of their right to self determination.
+And, although there are other, non comprehensive treaties dealing with terrorism, there is no plain or consistent approach in UN Conventions on the issue [4648].
+This is consistent with what was said by this Court in Al Sirri v Secretary of State [2012] UKSC 54, [2012] 3 WLR 1263, para 37 [44].
+Moreover, there have been U.N. resolutions referring to the activities of al Qaeda and the Taliban as terrorism, although their actions involved insurgents attacking forces of states and intergovernmental organizations in non international armed conflict.
+And the international law of armed conflict does not give any immunity combatants in non international armed conflicts [4950].
+It is true that some other provisions of the 2000 and 2006 Acts give effect to treaties that do not extend to insurgent attacks on military forces in non international armed conflicts.
+But there was no reason why the United Kingdom could not go further in the 2000 Act than the treaties had.
+And even if those treaties had intended to limit the definition of terrorism that they applied, that would only affect the particular provisions of the 2000 Act that implemented those treaties [54].
+As to the second aspect of the international law argument, it is irrelevant for present purposes whether the United Kingdom can criminalize certain actions committed abroad, because the material in this case was disseminated in the United Kingdom [56].
+Therefore, whether one approaches the matter as an issue of purely domestic law, or as an issue of domestic law read in the light of international law, there is no valid basis for reading the definition of terrorism more narrowly than the plain and natural meaning of its words suggested.
+In parting, the Court notes that although the issue is one for Parliament to decide, the current definition of terrorism is concerningly wide. [38] Canada and South Africa, for example, exclude acts committed by parties regulated by the law of armed conflict from the definition, and a recent report in Australia recommends that that country should follow suit. [61] The Independent Reviewer of Terrorism Legislation in the United Kingdom, Mr David Anderson QC, has made the point that the current law allows members of any nationalist or separatist group to be turned into terrorists by virtue of their participation in a lawful armed conflict, however great the provocation and however odious the regime which they have attacked [61].
+The 2000 and 2006 Acts also grant substantial intrusive powers to the police and to immigration officers, which depend upon what appears to be a very broad discretion on their part.
+While the need to bestow wide, even intrusive, powers on the police and other officers in connection with terrorism is understandable, the fact that the powers are so unrestricted and the definition of terrorism is so wide is probably of even more concern than the power of criminal prosecution to which the Acts give rise. [64]
diff --git a/UK-Abs/test-data/summary/full/uksc-2012-0143.txt b/UK-Abs/test-data/summary/full/uksc-2012-0143.txt
new file mode 100644
index 0000000000000000000000000000000000000000..06362e363c7d76cad34d81dc4c636c3ef360d89b
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2012-0143.txt
@@ -0,0 +1,49 @@
+This appeal concerns the principle that an individual extradited to the UK to face trial may only be tried for crimes allegedly committed before the extradition if those crimes form the basis of the extradition request (the specialty principle), and its application to contempt of court proceedings.
+In 2009 Mr OBrien came under investigation on suspicion of involvement in a large scale scheme to defraud investors, commonly known as a boiler room fraud.
+On 24 September 2009 the Common Serjeant of London made a restraint order against him under section 41 of the Proceeds of Crime Act 2002 (POCA).
+This order required Mr OBrien (amongst other things) to make disclosure of his assets, not to remove assets from England and Wales, and to return to England and Wales within 21 days any moveable asset in which he had an interest outside England and Wales.
+The order contained a penal notice, warning Mr OBrien that if he disobeyed the order he could be found to be in contempt of court.
+Mr OBrien disobeyed the order and fled to the United States.
+On 18 December 2009 the Common Serjeant found that he was in contempt and issued a bench warrant for his arrest.
+Mr OBrien was traced to Chicago.
+The Serious Fraud Office (SFO) sought his extradition to face charges relating to the alleged boiler room fraud.
+Mr OBrien consented to his extradition on 8 October 2010.
+Since there was a concern that the outstanding bench warrant could complicate the extradition, the SFO applied to the Common Serjeant to set aside the bench warrant, which he did on 18 November 2010.
+Mr OBrien was returned to the UK on 2 December 2010.
+He was arrested, charged with various fraud offences, and remanded in custody.
+Meanwhile the SFO had reviewed its concerns about the contempt allegation, and re applied to the Common Serjeant for Mr OBriens committal for contempt.
+Mr OBrien challenged the courts jurisdiction to hear the application.
+That challenge was rejected by the Common Serjeant and by the Court of Appeal.
+Mr OBrien now appeals to the Supreme Court on two grounds, namely that: On the correct construction of the Extradition Act 2003, the specialty rule applies to any extradition offence, defined as conduct occurring in the UK and punishable under the law of the UK with imprisonment or detention for 12 months or more (by reference to sections 148 and 151A of the Extradition Act 2003 (the 2003 Act)).
+Mr OBriens contempt satisfies these criteria and so falls within the specialty rule; or In the alternative, Mr OBriens contempt of court is a criminal contempt constituting a criminal offence, and so falls within the specialty rule.
+The Supreme Court dismisses the appeal.
+The judgment of the Court is given by Lord Toulson.
+On the first issue, the Court holds that section 151A does not directly apply to this case [34 35].
+In any event, the sections relied upon by Mr OBrien cannot be read in isolation, and reading the Act as a whole it is clear
+that conduct constituting an extradition offence must be a criminal offence under the law of the requesting state (here the UK) [36].
+On the second issue, the Court holds that there is a material distinction between civil and criminal contempt.
+The latter involves a serious interference with the administration of justice [41].
+The former is an inherent power used by a senior court in order to ensure that its orders are observed.
+Its primary purpose is to ensure that the courts orders are observed, and the contemnor does not acquire a criminal record [39 40].
+In this case Mr OBriens disobedience to the Common Serjeants order constitutes civil contempt, which does not constitute an extradition offence [45].
+First Ground: Mr OBrien argued that if his contempt satisfied the definition of extradition offence in section 148 of the 2003 Act, section 151A precluded a United Kingdom court dealing with him for that contempt [14 16].
+Mr OBriens argument required reading these two sections in isolation.
+However, it is necessary to see how those sections fit into the structure of the 2003 Act [20].
+Each of Parts 1 3 of the 2003 Act contain a similar definition of extradition offence, in each case referring to conduct punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment, with a common structure across the definitions [21].
+The Extradition Act 1989 was replaced by the 2003 Act in order to implement, in Part 1 of the 2003 Act, an EU Framework Decision [22].
+Under the Framework Decision, it is a prerequisite of a valid arrest warrant that the conduct of which the person is accused or has been convicted constitutes a criminal offence under the law of the requesting state [25].
+In relation to Part 1 (dealing with extradition from the UK to other Member States), the definition of extradition offence accordingly requires that an offence either be a listed extraditable offence or an offence under the law of the United Kingdom [28].
+A similar scheme is in place in relation to extradition from the UK to those non EU countries with which the UK has extradition arrangements, governed by Part 2 of the 2003 Act.
+So, sections 137 and 138 of the 2003 Act require that an extradition offence concerns conduct which would constitute an offence under UK law [29 30].
+That accords with the essential nature of extradition as it has been understood in the UK [31 33].
+Part 3 of the 2003 Act deals with extradition to the UK. section 148 (within Part 3) has no direct application to this case, since the UK judiciary is not involved in the process of obtaining Mr OBriens extradition [35].
+Nonetheless section 151A should be understood in the light of the wider scheme of the 2003 Act.
+It is clear that nothing can constitute an extradition offence unless it is a criminal offence under the relevant state, here the UK [36].
+Second Ground: A restraint order under POCA is an interim remedy, aiming to prevent the disposal of realisable assets during a criminal investigation.
+The Crown Court has an inherent jurisdiction to treat breach of such orders as contempt of court [37 38].
+There is a well recognised distinction between criminal contempt, covering conduct itself a crime, and civil contempt, covering conduct which is not itself a crime but is punishable by the court in order that the courts orders be observed.
+A civil contemnor does not receive a criminal record [39 41].
+If a victim of Mr OBriens fraud had obtained a freezing order against him similar to the POCA restraint order and Mr OBrien had disobeyed and absconded, the victim would clearly have been able to bring contempt proceedings following his extradition [43].
+There is no relevant difference with a POCA order.
+The key is the nature and purpose of the order, not the court in which the order was made [44].
+Mr OBriens contempt was civil, and his committal is not barred by the specialty principle.
diff --git a/UK-Abs/test-data/summary/full/uksc-2012-0162.txt b/UK-Abs/test-data/summary/full/uksc-2012-0162.txt
new file mode 100644
index 0000000000000000000000000000000000000000..9da70284bcd53e960e71a295ecfe7b42d4edee8b
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2012-0162.txt
@@ -0,0 +1,39 @@
+This appeal is the lead case in a number of appeals concerned with liability to pay National Insurance Contributions (NICs) and, in particular, with the interpretation of the phrase in section 6(1) of the Social Security Contributions and Benefits Act 1992, [w]here in any tax week earnings are paid to or for the benefit of an earner.
+The case focuses on the meaning of the word earnings in that phrase, and whether it covers a payment by the appellant, FML, of an employers contribution to a Funded Unapproved Retirement Benefits Scheme [1].
+The scheme was set up by FML by trust deed on 11 April 2002 to provide certain benefits to its employees and directors.
+The trust provided that upon a members retirement from service the trustees were to apply the accumulated fund in providing the member with a pension for life or such other relevant benefits as might be agreed.
+On the members death the trustees were to realise the accumulated fund and apply the net proceeds to or for the benefit of a defined discretionary class of beneficiary.
+On the same day, Mr McHugh, a shareholder and director of FML, asked to become a member of the scheme.
+He informed the trustees that he wished them to exercise their discretion in favour of his wife in the event of his death.
+FML made an initial cash contribution to the scheme of 1,000 and transferred to it Treasury Stock with the nominal value of 162,000, both for Mr McHughs benefit.
+He has been the only member of the scheme and has received no relevant benefits from it, as defined in section 612 of the Income and Corporation Taxes Act 1988 [2].
+He was 54 years old when the transfers were made, and FML specified his retirement age to be his 60th birthday.
+However as he controlled FML this date could be brought forward for the purposes of the scheme [3].
+The question was whether the transfers were payments of earnings to or for the benefit of Mr McHugh within the meaning of section 6 of the 1992 Act.
+It was agreed that the payment was for his benefit, but was it earnings? HMRC decided that it was, and that FML was therefore liable to pay Class 1 NICs on the value of the transfer.
+FMLs appeal to the Upper Tribunal was successful, but the Court of Appeal reinstated HMRCs decision [4 5].
+FML appealed to the Supreme Court.
+Departing from its position before the Court of Appeal, FML accepted that earnings had a wider meaning than emoluments in income tax legislation.
+It submitted that the payment of earnings under section 6 did not extend to the employers transfer to a trust of funds or assets in which the earner had at the time of the transfer only a contingent interest [6].
+In a judgment delivered by Lord Hodge, the Supreme Court unanimously allows the appeal.
+Lord Hodge examines the legislative history behind the UKs system of national insurance, which shows that NICs have indeed been levied on a basis that is different from the emoluments on which income tax has been raised [7 13].
+He considers it significant that Parliament, in the National Insurance Act 1946, chose to use the word earnings rather than emoluments.
+The latter word has been interpreted by the courts as referring to actual money payments and benefits in kind capable of being turned into money by the recipient [10].
+Lord Hodge refers to primary legislation in 1911 and 1946 and also subordinate legislation for the purpose of demonstrating that the scheme of NICs legislation by which earnings includes non convertible benefits in kind (unless they are disregarded) has existed since 1946 [11 13].
+As a result of the assumptions on which the subordinate legislation had been framed, HMRC had to argue that earnings are paid to an earner both when assets are transferred to a pension scheme to be held on a trust and also when payments are made from the trust fund.
+HMRC looked to the payment and not to what the earner received.
+The sum paid into the trust was part of Mr McHughs remuneration, going into a trust fund for the sole benefit of Mr McHugh and his wife.
+Payments out to him from the trust would also, it was submitted, be earnings as they were also payments to him in respect of his employment.
+Double counting would be avoided only as a result of specific disregards in the subordinate legislation [15].
+Lord Hodge considers that remarkable position to be wrong for three reasons: First, the ordinary man on the underground would consider it counter intuitive that a person would earn remuneration both when his employer paid money into a trust to create a fund for his benefit and again when at a later date the trust fund was paid out to him.
+If one gives words their ordinary meaning, it is clear that a retired earner receives earnings in respect of his employment in the form of deferred remuneration when he receives his pension.
+The payment from the trust is deferred earnings; the payment into it is not earnings [16].
+Secondly, HMRCs view could only be sustained by looking exclusively at what was paid and ignoring what the earner received.
+Such an interpretation denudes the word earnings of any meaning, so the phrase earnings are paid would amount to payments are made [17].
+The third reason relates to the method of computation.
+By treating the payment into the trust as earnings, HMRC fail to take into account the existence of the contingency.
+The transfer gave Mr McHugh not cash and treasury stock, but only the entitlement to a future pension or relevant benefits once the condition of reaching retirement age had been purified.
+The hypothetical value to his entitlement would not be the value at the date of the transfer of the assets paid into the fund, but the value of Mr McHughs contingent right to the trust fund such as it would be at his retirement age.
+That would not be a simple exercise, and HMRCs approach fails to address what it was that Mr McHugh received when the transfer was made [18].
+Lord Hodge concludes that the transfer to the trust was not the payment of earnings for section 6(1) purposes [19].
+The court allows FMLs appeal and reinstates the judgment of the Upper Tribunal [22].
diff --git a/UK-Abs/test-data/summary/full/uksc-2012-0179.txt b/UK-Abs/test-data/summary/full/uksc-2012-0179.txt
new file mode 100644
index 0000000000000000000000000000000000000000..dad8d2a5c02d9bffbf3a81926bb1a9cb99aac919
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2012-0179.txt
@@ -0,0 +1,29 @@
+The proceedings arose out of the admitted and continuing failure of the United Kingdom since 2010 to secure compliance in certain zones with the limits for nitrogen dioxide levels set by European Union law, under Directive 2008/50/EC.
+In a judgment of 1 May 2013, the Supreme Court referred certain questions to the Court of Justice of the European Union (CJEU) concerning the interpretation of articles 13, 22 and 23 of the Directive.
+Article 13 laid down limit values for the protection of human health; in respect of nitrogen dioxide, certain limits may not be exceeded from the relevant date, i.e. 1 January 2010.
+Article 22 provided a procedure for a member state to apply to the European Commission to postpone the compliance date for not more than five years in certain circumstances and subject to specified conditions.
+Article 23 imposed a general duty on member states to prepare air quality plans for areas where the limits were exceeded.
+By the second paragraph of article 23(1), in cases where the attainment deadline (was) already expired, the air quality plans must set out appropriate measures, so that the period for which the member state would be in exceedance of the limits can be kept as short as possible.
+Where an application was made under article 22, the air quality plan had to include the information listed in Annex XV, section B of the Directive.
+This included information on all air pollution abatement measures considered, including five specified categories of measures, such as for example (d) measures to limit transport emissions.
+The required contents of air quality plans prepared under article 23 were in Annex XV section A. ClientEarth argued that the UK was required by article 22 to apply for postponement in respect of all zones where compliance with the air quality limits could not be met by the original deadline.
+The Secretary of State had not applied to postpone the deadline for some of the UKs non compliant zones, but instead in 2011 had produced air quality plans under article 23, predicting compliance would not be achieved until 2025.
+The Secretary of State argued that it was not required to apply for postponement under article 22.
+The Supreme Court in its judgment of 1 May 2013 declared the UK to be in breach of article 13, and referred the following questions to the CJEU: (1) Where in any zone of the UK the state has not achieved conformity with the nitrogen dioxide limit values by the 2010 deadline, is a member state obliged to seek postponement of the deadline in accordance with article 22? (2) If so, in what circumstances (if any) may a member state be relieved of that obligation? (3) To what extent (if at all) are the obligations of a member state which
+has failed to comply with article 13 affected by article 23? (4) In the event of non compliance with articles 13 or 22, what remedies must a national court provide? The CJEU answered these questions in a judgment dated 14 November 2014 (C 404/13).
+The present proceedings considered what further orders, if any, should be made by the Supreme Court.
+The Supreme Court unanimously orders that the government must submit new air quality plans to the European Commission no later than 31 December 2015.
+Lord Carnwath gives a judgment with which all members of the Court agree.
+The CJEU decided to reformulate the first two questions referred.
+This introduced ambiguity enabling each party to claim success on the issue of whether the Secretary of State had breached article 22 by not applying to extend the deadline.
+However, it is unnecessary to make a final ruling on the meaning of the CJEUs judgment on these questions. [5] The CJEUs answer to the third question was that the fact that an air quality plan complying with article 23(1) has been drawn up does not in itself mean the member state has met is obligations under article 13.
+Its answer to the fourth question was that where a member state has failed to comply with article 13 and not applied to postpone the deadline under article 22, it is for the national court to take any necessary measure so that the authority establishes the plan required by the Directive in accordance with the conditions laid down by the latter. [6] The time taken by these proceedings has meant that the article 22 issue has no practical significance, except in relation to the requirements of Annex XV section B, which apply to a plan produced under article 22 but not, in terms, to a plan under article 23.
+However, as the Commission explained in its observations to the CJEU, the requirements of article 23(1) are no less onerous than those under article 22.
+The court is able where necessary to impose requirements which are appropriate to secure effective compliance at the earliest possible opportunity.
+The checklist of measures under paragraph 3 of section B have to be considered in order to demonstrate compliance with either article 22 or 23. [23 24] It is unnecessary to reach a concluded view on whether the article 22 procedure was obligatory.
+Lord Carnwath saw force in the Commissions reasoning, which treats article 22 as an optional derogation, but makes clear that failure to apply for a postponement, far from strengthening the position of the state, rather reinforces its essential obligation to act urgently under article 23(1) in order to remedy the danger to public health as soon as possible. [25 26] The Secretary of States argument that there was no basis for an order quashing the 2011 plans, nor a mandatory order to replace them, was rejected.
+The critical breach is of article 13, not of articles 22 or 23.
+The CJEU judgment leaves no doubt as the seriousness of the breach, which has been continuing for more than five years, nor as to the responsibility on the national court to secure compliance.
+Further, during those five years the prospects of early compliance have become worse (2014 projections predicting non compliance in some zones after 2030).
+The Secretary of State accepted that a new plan has to be prepared.
+The new government should be left in no doubt as to the need for immediate action, which is achieved by an order that new plans must be delivered to the Commission not later than 31 December 2015. [19, 28 29, 33]
diff --git a/UK-Abs/test-data/summary/full/uksc-2012-0181.txt b/UK-Abs/test-data/summary/full/uksc-2012-0181.txt
new file mode 100644
index 0000000000000000000000000000000000000000..c7ad750084b46b63effd017158e7b62f464517ca
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2012-0181.txt
@@ -0,0 +1,36 @@
+The issue in this appeal is whether AA falls within the definition of an adopted child in paragraph 352D of the Immigration Rules.
+AA was born in Somalia on 21 August 1994.
+Her family were torn apart by events in Somalia and her father was killed in the mid 1990s.
+AA became separated from her mother and other siblings during the fighting.
+Around the end of 2002, she went to live with her brother in law, Mohamed.
+He had a daughter, Fadima and step daughter, Amaani.
+Mohamed took AA into his family home under the Islamic procedure known as Kafala (described as a process of legal guardianship akin to adoption).
+In October 2007, Mohamed left Somalia and came to the UK in November 2007.
+He was granted asylum on 21 July 2008.
+The three girls, AA, Fadima and Amaani, were left with a maternal aunt in Mogadishu.
+An application for entry into the UK was made for all three girls.
+Entry clearance was granted to Fadima and Amaani who came to the UK in January 2010.
+It was refused for AA who remained in Addis Ababa pending her appeal.
+Her appeal was heard in the First tier Tribunal (FTT) on 3 September 2010.
+Exert evidence, accepted by the tribunal, was to the effect that, although adoption as such does not exist under Islamic law, under the legal institution known as Kafala a person may become a protg and a part of the household of an adult; and that this only falls short of a full blown adoption in that such adoptee does not enjoy a right of inheritance under Islamic law.
+The FTT allowed the appeal both under paragraph 352D and article 8 ECHR (right to respect for private and family life).
+The Secretary of State appealed.
+The Upper Tribunal (UT) allowed the Secretary of States appeal in respect of paragraph 352D but confirmed the FTTs decision under article 8.
+On 2 May 2012, the Court of Appeal confirmed the UTs decision.
+On 14 May 2012, AA was given entry clearance and she arrived in the UK on 4 June 2012.
+AA appeals to the Supreme Court in respect of paragraph 352D of the Immigration Rules.
+The Supreme Court dismisses the appeal.
+Lord Carnwath gives the lead judgment, with which Lady Hale, Lord Wilson, Lord Reed and Lord Hughes agree.
+The correct approach to construction of the rules is well settled, as explained by Lord Brown in Mahed v Entry Clearance Officer [2010] 1 WLR 48.
+Read in accordance with those principles, it is clear that paragraph 352D does not cover AAs case and cannot be rewritten in order to do so [14 15].
+Whether or not Kafala could be treated as a form of adoption for other purposes, the definition of adoptive parent in paragraph 6 is more restricted.
+It extends to de facto adoption only within the limitations laid down by paragraph 309A, which does not cover this case [15 16].
+A number of international instruments call for a broad approach to the protection of the interests of children.
+The best interests principle is now, in appropriate areas of law, recognised both by domestic and international law [17].
+However, taking them at their highest, there is no specific obligation covering the position of AA [18].
+Subject to the issue of discrimination, there is no international obligation which goes further in practical terms than the protection which has been afforded to AA under human rights law [21].
+It appears harsh that under the rules AA is treated less favourably than her adoptive siblings, largely because of the tragic circumstances in which parental responsibility passed to her brother in law, taken with the lack of any functioning legal system allowing for formal adoption in the country from which she comes.
+However, it is unnecessary to decide in the context of the present appeal whether or not such treatment could give rise to a claim for unlawful discrimination under article 14 ECHR or otherwise.
+This is because any rights which AA has in that respect would apply equally to her position in this country, regardless of the basis of her admission.
+In exercising any discretion in relation to the grant or extension of definite leave to remain, the Secretary of State is obliged to act in conformity with the Convention, including article 14.
+It is not necessary to reinterpret the rules to achieve that result [24].
diff --git a/UK-Abs/test-data/summary/full/uksc-2012-0247.txt b/UK-Abs/test-data/summary/full/uksc-2012-0247.txt
new file mode 100644
index 0000000000000000000000000000000000000000..29850074517c0cb358a2cd1ca945c93fde07b606
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2012-0247.txt
@@ -0,0 +1,34 @@
+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.
diff --git a/UK-Abs/test-data/summary/full/uksc-2012-0249.txt b/UK-Abs/test-data/summary/full/uksc-2012-0249.txt
new file mode 100644
index 0000000000000000000000000000000000000000..674f07696714eaac59bd3d07ef8a72c859c12749
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2012-0249.txt
@@ -0,0 +1,37 @@
+These proceedings concern three sets of claims which arise out of the deaths of three young British servicemen and the serious injuries of two other young British servicemen in Iraq.
+The first set (the Challenger claims) arise from a friendly fire incident involving British tanks which caused the death of Cpl Stephen Allbutt and the serious injury of Lance Cpl Daniel Twiddy and Tpr Andrew Julien.
+They are brought in negligence and allege failures by the Ministry of Defence (the MoD) to properly equip the tanks involved and to give soldiers adequate recognition training.
+The second set (the Snatch Land Rover claims) arise from the deaths of Pte Phillip Hewett (son of the claimant Susan Smith) and Pte Lee Ellis (father of the claimant Courtney Ellis and brother of the claimant Karla Ellis) by the detonation of improvised explosive devices level with the Snatch Land Rovers in which the soldiers were travelling.
+The claimants all claim that the MoD breached the implied positive obligation in article 2 of the European Convention on Human Rights (the Convention) to take preventive measures to protect life in the light of the real and immediate risk to life of soldiers who were required to patrol in Snatch Land Rovers.
+The third (the Ellis negligence claim) is brought by Courtney Ellis in negligence and is based on various alleged failures on the part of the MoD [1 12].
+The MoD argued that the Snatch Land Rover claims under article 2 of the Convention should be struck out because at the time of their deaths Pte Hewett and Pte Ellis were not within the jurisdiction of the UK for the purposes of the Convention, and because on the facts as pleaded the MoD did not owe a duty to them at the time of their deaths under article 2.
+It also argued that the Challenger claims and the Ellis negligence claim should all be struck out (1) on the principle of combat immunity (which operates to exclude liability for negligence in respect of the acts or omissions of those engaged in active operations against the enemy), and (2) because it would not be fair, just or reasonable to impose a duty of care on the MoD in the circumstances of those cases [13].
+The High Court and Court of Appeal considered these arguments.
+The effect of the Court of Appeals judgment was that: (1) the Snatch Land Rover claims under article 2 of the Convention should be struck out because the deceased were outside the jurisdiction of the UK for the purposes of the Convention and there was no basis for extra territorial jurisdiction; and (2) the Challenger claims and the Ellis negligence claim should proceed to trial [15].
+The following issues were before the Supreme Court. (1) In relation to the Snatch Land Rover claims, whether at the time of their deaths Pte Hewett and Pte Ellis were within the jurisdiction of the UK for the purposes of the Convention. (2) If they were, whether and if so, the extent to which article 2 imposes positive obligations on the UK with a view to preventing the deaths of its own soldiers in active operations against the enemy. (3) In relation to the Challenger claims and the Ellis negligence claim, whether the allegations of negligence should be struck out because they fall within the scope of combat immunity or because it would not be fair, just or reasonable to impose a duty to take care to protect against death or injury in the circumstances [16].
+The Court unanimously holds that, in relation to the Snatch Land Rover claims, Pte Hewett and Pte Ellis were within the UKs jurisdiction for the purposes of the Convention at the time of their deaths.
+By a majority (Lords Mance, Wilson and Carnwath dissenting), the Court holds that: (i) the Snatch Land Rover claims should not be struck out on the ground that the claims are not within the scope of article 2 of the Convention; and (ii) the Challenger claims and Ellis negligence claim should not be struck out on the ground of combat immunity or on the ground that it would not be fair, just or reasonable to extend the MoDs duty of care to those cases [101].
+The effect of the Courts decision is that all three sets of claims may proceed to trial.
+Issue 1: Convention jurisdiction: In its judgment of July 2011 in the Al Skeini case, the European Court of Human Rights decided that six Iraqi civilians who had died as a result of the actions of British armed forces in Iraq were within the UKs jurisdiction for the purposes of the Convention.
+The judgment does not answer issue 1 directly, but elements can be extracted from it which point clearly to the conclusion that the Court reaches in this case.
+It formulates a relatively general principle that extra territorial jurisdiction can exist whenever a state through its agents exercises authority and control over an individual.
+It also indicated that Convention rights can be divided and tailored to the particular circumstances of the extra territorial act in question, as opposed to being an indivisible package.
+A states extra territorial jurisdiction over local inhabitants exists because of the authority and control that is exercised over them as a result of the authority and control that the state has over its own armed forces.
+They are all brought within the states jurisdiction by the application of the same general principle [42 52].
+Issue 2: Snatch Land Rover claims under article 2 of the Convention: In this area, the court must fully recognise the wide margin of appreciation to be given to the state and avoid imposing obligations which are unrealistic or disproportionate.
+But it must give effect to those obligations where it would be reasonable to expect the individual to be protected by article 2.
+Policy decisions made at a high level of command and things done on the battlefield will fall outside the scope of article 2.
+But whether claims which are between these two categories are within the scope of article 2 will require the exercise of judgment in the light of the facts of each case [76].
+The present claims provide only brief outlines of the claimants cases and they pre date developments in relevant case law on article 2.
+The circumstances in which the various decisions were made need to be inquired into before it can be determined with complete confidence whether or not there was a breach of article 2.
+However, given the Courts guidance on the margin of appreciation to be given to the state, it is far from clear that the claimants will be able to demonstrate such a breach [78 81].
+Issue 3: Challenger claims and Ellis negligence claim: The doctrine of combat immunity should be construed narrowly and should not be extended beyond its established scope to the planning of and preparation for active operations against the enemy.
+The Challenger claims are not within the scope of the doctrine because they relate to decisions which are sufficiently far removed from the pressures and risks of active operations against the enemy.
+The Ellis negligence claim is less obviously directed to things done away from the theatre of battle so it is arguably within the doctrine.
+It would be premature for these claims to be struck out and the issue should be open to further argument in the light of the evidence [89 96].
+The circumstances in which active operations are undertaken by the UKs armed services today vary greatly and cannot all be grouped under a single umbrella as if they were all open to the same risk of judicialising warfare.
+However, considerations similar to those affecting the Snatch Land Rover claims under article 2 arise in relation to whether it would be fair, just and reasonable to impose a duty of care on the MoD in this area.
+The question whether the negligence claims in this case entail subjecting the MoD to duties that are unrealistic or excessively burdensome cannot properly be determined without hearing evidence [98 100].
+Minority judgments: Lord Mance (with whom Lord Wilson agrees) would have struck out all three sets of claims in their entirety, essentially because they are not suitable for resolution by a court [125 137, 146, 150 152].
+For the same reasons, Lord Carnwath would have struck out the Challenger claims.
+However, he considered that the Snatch Land Rover claims were not necessarily excluded, because major combat operations had ceased by the time of the relevant incidents [156, 186 188].
diff --git a/UK-Abs/test-data/summary/full/uksc-2012-0250.txt b/UK-Abs/test-data/summary/full/uksc-2012-0250.txt
new file mode 100644
index 0000000000000000000000000000000000000000..8411526fc60d85ddcb6a08abaf73f7735505ebad
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2012-0250.txt
@@ -0,0 +1,54 @@
+Mr George was born in Grenada in 1984 and came to the UK in 1995 at the age of 11.
+In March 2000 he was granted indefinite leave to remain (ILR) in the UK.
+He has a partner whom he has known since school, with whom he has a daughter born in 2005.
+He and his partner do not live together: his daughter however sees him reasonably often and sometimes stays with him.
+Since 2000, Mr George has been convicted of seven different offences, including supply of cocaine and possession with intent to supply heroin and cocaine.
+The Secretary of State decided that Mr Georges deportation would be conducive to the public good.
+From that point he was, by section 3(5) Immigration Act 1971 (the 1971 Act), liable to deportation.
+Notice was served upon him, in January 2007, that a deportation order was to be made against him.
+He unsuccessfully challenged that decision and, on 24 April 2008, a deportation order was made in respect of him.
+The effect of that deportation order, by section 5(1) of the 1971 Act, was to invalidate his ILR.
+Mr George made a further application to the Secretary of State arguing that his deportation to Grenada would be unlawful under section 6 Human Rights Act 1998 as it would breach his right to private and family life under Article 8 ECHR.
+The Secretary of State rejected that application, but an immigration judge allowed his appeal on 31 March 2009.
+The effect of that judgment was to revoke his deportation order.
+The question in this case is Mr Georges immigration status following the making and revocation of the deportation order.
+Did Mr Georges ILR, invalidated by the deportation order, revive when the deportation order was itself revoked? Mr Georges solicitors considered that it did, and called on the Secretary of State to confirm this.
+The Secretary of State however considered that it did not, and instead granted six months discretionary leave to remain (DLR) on 2 August 2013.
+On the expiry of that leave the Secretary of State granted a further three years DLR.
+Mr George judicially reviewed the decision not to reinstate ILR.
+He argued that on the true interpretation of section 5(1) (2) Immigration Act 1971, his ILR was reinstated by the revocation of the deportation order.
+Subsection (1) provides that a deportation order shall invalidate any leave to remain given [to a person] before the order is made or while it is in force.
+Subsection (2) provides that a deportation order may at any time be revoked by a further order of the Secretary of State, and shall cease to have effect if he becomes a British citizen.
+He further argued that an interpretation of section 5 by which his ILR was revived was supported by the fact that other immigration statutes, particularly section 76 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act), required that reading of the 1971 Act.
+Mr Georges claim was dismissed in the High Court, but his appeal to the Court of Appeal was allowed.
+The Secretary of State appealed to the Supreme Court.
+The Supreme Court unanimously allows the appeal.
+Lord Hughes gives the only reasoned judgment, with which the other members of the court agree.
+The better reading of section 5 of the 1971 Act is that it does
+not revive prior leave on a deportation orders revocation.
+The other statutory provisions relied upon by Mr George do not support his case.
+Mr Georges first argument is that on its natural meaning, (i) revocation of a deportation order under section 5(2) of the 1971 Act must reverse all the consequences of the order listed in section 5(1), including therefore the invalidation of the leave to remain, and (ii) that the words shall cease to have effect in section 5(2) govern both the citizenship and revocation possibilities in that subsection.
+However, neither point is compelling.
+The wording of the subsections does not provide a conclusive answer to the question in the appeal [10 11].
+Importantly, the 1971 Act has consistently been treated as meaning that revocation does not revive prior leave to remain.
+Draft Immigration Rules which made this clear were prepared (and considered by Parliament) alongside the 1971 Act, and every subsequent version of the Immigration Rules has contained the same statement.
+Each version has been laid before Parliament.
+Likewise, successive editions of practitioner textbooks have taken the same position [12].
+Revival of prior leave to remain is not the natural meaning of section 5 of the 1971 Act.
+It is a significant and far reaching legal concept, and it is likely that if intended, it would have been explicitly provided [29].
+The treatment of section 5(2) of the 1971 Act in successive Rules laid before Parliament clearly demonstrates that there was no legislative assumption that the effect of revocation of a deportation order was revival of prior leave to remain [30].
+Mr Georges second argument was that other immigration statutes, particularly section 76 of the 2002 Act, indicate that the proper interpretation of the 1971 Act is that revocation of a deportation order revives leave to remain. section 76 provides a power for the Secretary of State to revoke ILR if a person is liable to deportation but cannot be deported for legal reasons.
+Mr George argued that this power would be superfluous if the making of a deportation order irrevocably cancelled ILR [13 14].
+However, this is incorrect.
+While the legal impediment to Mr Georges deportation arose only after his deportation order was made, in other cases the legal impediment would be apparent prior to this point, and so the order would never be made. section 76 provides a power for the Secretary of State to revoke ILR and instead provide for limited or conditional leave.
+In any event the only import of this argument goes to Parliaments intention when it passed the 1971 Act: the legislative history set out at [12] demonstrates that Parliament intended a deportation order irrevocably to extinguish prior leave to remain [16 18].
+A number of arguments based on other statutes and situations were raised.
+Where an individual previously possessing ILR had been deported, that individual might need to return to the UK for a brief period.
+The Secretary of State would need to revoke the deportation order and make a fresh grant of conditional leave.
+It could not be right that in such a situation the previous ILR would revive, and this provided some limited support for the Secretary of States position.
+The Immigration (Leave to Enter and Remain) Order 2000 did not alter this conclusion, since the issue is the construction of the 1971 Act, and the problem existed prior to 2000 [19 21].
+Mr George had based an argument on an analogy with section 10 of the Immigration and Asylum Act 1999.
+However, that issue was not squarely before the court, and it would be wrong to determine its interpretation in the abstract [25 26].
+The same was true of the UK Borders Act 2007 [27 28].
+More fundamentally, it is wrong to reason from suggested scenarios under later Acts to the meaning of an earlier Act.
+Later statutes are not reliable guides to the meaning of earlier ones, particular in areas where there have been fast moving changes to the legislation [30].
diff --git a/UK-Abs/test-data/summary/full/uksc-2013-0006.txt b/UK-Abs/test-data/summary/full/uksc-2013-0006.txt
new file mode 100644
index 0000000000000000000000000000000000000000..9f87395028ac1184dc8c37e3b907bc415c41170f
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2013-0006.txt
@@ -0,0 +1,53 @@
+On 6 December 2010 the Crown Prosecution Service applied to the Crown Court for restraint orders under section 41 of the Proceeds of Crime Act 2002 (POCA) against two individuals, and restraint and receivership orders (under section 48 POCA) against Eastenders Group.
+Eastenders Group, of which the individuals were the joint owners, was a holding company for a number of trading cash and carry retail outlets.
+These orders were sought because the CPS was conducting a covert investigation into a suspected fraud on HMRC, allegedly carried out through Eastenders Group companies.
+A POCA restraint order prevents named persons from dealing with their own assets until the order is discharged.
+A receivership order appoints a receiver to manage the assets of the company subject to the restraint order.
+The CPS sought to have Mr Barnes, a partner in a well known firm of accountants, appointed as Eastenders Groups receiver under a letter of agreement between the CPS and Mr Barnes.
+The letter of agreement suggested that Mr Barnes would be remunerated from Eastenders Group property.
+The restraint and receivership orders were made by the Crown Court judge after a short hearing.
+Mr Barnes was appointed and began to manage the Group.
+On 23 December 2010, the Eastenders Group sought to have its orders discharged, but the judge refused.
+The Group appealed to the Court of Appeal, heard on 25 January 2011.
+On 26 January 2011 the Court of Appeal quashed the orders over the Group.
+They held that the orders should never have been made: there was no good arguable case that the Group assets should be regarded as the individuals assets, and 95% of the business of the Group was demonstrably legitimate.
+However, during the period of the receivership, the receiver had incurred costs and expenses of 772,547.
+This included significant sums for site security, legal expenses and the receivers fees.
+The receiver applied to the Crown Court for permission to draw his remuneration and expenses from Eastenders Group assets.
+The application was refused by Underhill J, who held that requiring the companies to pay would breach the Groups right to peaceful enjoyment of its possessions under Article 1 of Protocol 1 to the European Convention on Human Rights (A1P1), and so would be unlawful under section 6 Human Rights Act 1998 (section 3 HRA 1998).
+He went on to hold that it was possible to interpret POCA (by section 3 HRA 1998) to give the court the power to require the CPS to pay the receivers remuneration and expenses.
+The CPS appealed to the Court of Appeal.
+The majority of the Court of Appeal upheld Underhill Js decision that the Groups rights under A1P1 would be infringed by an order entitling the receiver to draw his remuneration from its assets on the basis that the order was insufficiently foreseeable.
+Laws LJ, dissenting on that point, would have allowed the receiver to draw his remuneration from Eastenders assets.
+The Court was unanimous that there was no basis under POCA or the HRA 1998 for the CPS to be required to pay the receivers remuneration and expenses.
+The receiver appealed to the Supreme Court.
+The Supreme Court unanimously allows the receivers appeal (only) against the Court of Appeals refusal to have the CPS to pay the receivers remuneration and expenses.
+Lord Toulson gives the leading judgment, with a short concurrence by Lord Hughes dealing with the practical application of the courts decision.
+It is a general principle of the law of receivership that a court appointed receiver is entitled to remuneration from the assets of the administered company.
+That law is clear and foreseeable.
+However, where the administered company is not itself a defendant, nor at the time of the order was there any reasonable cause to regard its assets as the defendants, it would be a disproportionate interference with the companys A1P1 rights for the receivers remuneration to be drawn from the companys assets.
+However, to leave the receiver without a remedy would be to substitute one injustice for another and violate the receivers A1P1 rights.
+In this case the receiver and the CPS acted on a common assumption, fundamental to the agreement, that the receiver would be able to claim his remuneration and expenses from the Eastenders Group.
+That assumption failed: the receiver accordingly has a valid right to restitution from the CPS.
+It is an established principle of the common law of receivership that a court appointed receiver may draw his remuneration and expenses to the assets placed by the court in his/her control.
+The receiver has a lien over those assets for that purpose [44].
+That common law, together with the provisions of POCA and the Criminal Procedure Rules, provide amply clear and foreseeable authority for the making of such order, and Laws LJ was correct so to hold [83].
+The critical question in this case is not foreseeability, but proportionality.
+Would it be disproportionate to order that the Receivers expenses be drawn from the companies? [87].
+The taking of property without compensation is, in general, a disproportionate interference with A1P1 [88].
+In this case the Group were neither defendants nor (as the Court of Appeal found) was there any reasonable cause for regarding the Group assets as those of the defendants at the time when it was made [89], [125 130].
+Divesting the Group of its assets in that situation is disproportionate [94].
+It is as if the assets of an innocent defendant were sought to be used to cover the costs of detaining and prosecuting him or her [92].
+The Receivers application to recover his expenses from Eastenders Group therefore fails [96].
+However, that conclusion would leave the court in an invidious position, since to leave the Receiver without recompense would violate his A1P1 rights [96].
+The Receiver had, however, entered on his receivership pursuant to a letter of agreement with the CPS [98].
+It was the mutual expectation of both the Receiver and the CPS that the Receiver would have a legally enforceable lien over the receivership property [99].
+Unjust enrichment may cover a variety of situations.
+Failure of services at the request of another is capable of being regarded as enrichment, and it would be unjust if the receiver were not paid for the services which he provided [100 117].
+Hence the receiver has a claim in unjust enrichment against the CPS [117].
+The restraint and receivership orders were made in this case on an application at short notice.
+Applications by the CPS for such orders should be made as early as possible, with proper time estimates and reading lists, enabling the court to consider the necessary arrangements [118 119].
+The fact that such applications are made ex parte places a special burden of candour on the CPS and considerable responsibility upon the court [120].
+Failure to discharge the duty of candour could well be considered serious misconduct [121].
+The court should always consider such applications carefully: making such orders should never be a rubber stamping exercise.
+In certain cases, it could be appropriate to attach a Piggott condition to a receivership order providing that if property was shown not to be realisable property, the receivers costs should fall on the CPS [124].
diff --git a/UK-Abs/test-data/summary/full/uksc-2013-0023.txt b/UK-Abs/test-data/summary/full/uksc-2013-0023.txt
new file mode 100644
index 0000000000000000000000000000000000000000..13ead19078fc354601cdc4d9a97b1edf6fb2d372
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2013-0023.txt
@@ -0,0 +1,48 @@
+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].
diff --git a/UK-Abs/test-data/summary/full/uksc-2013-0036.txt b/UK-Abs/test-data/summary/full/uksc-2013-0036.txt
new file mode 100644
index 0000000000000000000000000000000000000000..de951f08edb5fd7ed9afaad9373f9f2e53485999
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2013-0036.txt
@@ -0,0 +1,36 @@
+This appeal concerns the liability for Value Added Tax (VAT) of a company known as Med, which marketed hotel accommodation in the Mediterranean and the Caribbean through a website.
+An hotelier who wished his hotel to be marketed by Med had to enter into a written agreement with Med (the Accommodation Agreement).
+When a potential customer identified a hotel at which she wished to stay, she would book a holiday through a form on the website, which set out standard booking conditions (the website terms).
+The customer had to pay the whole of the sum she agreed with Med to pay for the holiday (the gross sum) before arriving at the hotel.
+However, Med only paid the hotel a lower sum (the net sum) for the holiday after it had ended.
+VAT is an EU tax levied on the supply of goods or services.
+By article 2.1(c) of Directive 2006/112/EC (the Principal VAT Directive) VAT is liable to be levied on the supply of services for consideration within the territory of a Member State by a taxable person acting as such.
+Article 45 states that The place of the supply of services connected with immovable propertyshall be the place where the property is located.
+The application of article 45 to travel agents could result in their having to be registered in many member states, and so articles 306 310 contain a special scheme relating to travel agents.
+Article 306 differentiates between two categories of travel agent, namely (a) those who deal with customers in their own name and use supplies of goods or services provided by other taxable persons, in the provision of travel facilities and (b) those who act solely as intermediaries (referred to for convenience as, respectively, article 306.1(a) and article 306.1(b)), and provides for a special VAT scheme for transactions carried out by travel agents who fall within article 306.1(a).
+The Commissioners for Her Majestys Revenue and Customs (HMRC) assessed Med for VAT on the basis that Med was a travel agent that deals with customers in its own name within the meaning of article 306.1(a).
+On that basis, it was agreed that Med would be liable for VAT on the gross sum paid by the customer to Med.
+Med challenged this assessment, on the ground that it was a travel agent acting solely as an intermediary within the meaning of article 306.1(b).
+On this approach, any VAT would be due to the Greek taxation authorities.
+The First Tier Tribunal upheld HMRCs analysis.
+Morgan J allowed Meds appeal, but HMRCs subsequent appeal to the Court of Appeal was successful.
+The Supreme Court unanimously allows the appeal.
+Lord Neuberger gives the only judgment, with which the rest of the court agrees.
+Med was acting as an intermediary rather than in its own name, and so falls within article 306.1(b).
+Consequently, the Supreme Court discharges the order of the Court of Appeal and restores the order of Morgan J.
+The outcome of this appeal turns on the question whether Meds activities in relation to the provision of hotel rooms to customers fell within article 306.1(a) or article 306.1(b) of the Principal Tax Directive [20].
+What article 306 means and how it is to be applied is a matter of EU law, a topic on which the decisions of the Court of Justice of the European Community (CJEU) are binding on national courts [22].
+However, insofar as the provisions of article 306 depend upon the precise nature and character of the contractual relationship between two or more parties, that issue must be determined by reference to the proper law of the contract or contracts concerned [23].
+The domestic law Where parties have entered into a written agreement which appears on its face to be intended to govern the relationship between them, in order to determine the legal and commercial nature of that relationship it is necessary to interpret the agreement in order to identify the parties respective rights and obligations, unless it is established that it constitutes a sham [31].
+While it is not possible to take into account the subsequent behaviour or statements of the parties as an aid to interpreting their written agreement, this may be invoked for other reasons: (i) to support the contention that the written agreement was sham; (ii) to support a claim for rectification; (iii) to support a claim that the written agreement was subsequently varied, or rescinded and replaced by a subsequent contract; or (iv) to establish that the written agreement represented only part of the parties contractual relationship [33].
+It is not suggested that either the Accommodation Agreement or the website terms is a sham or liable to rectification.
+Accordingly, one must start by characterising the nature of the relationship between Med, the customer, and the hotel, in the light of the Accommodation Agreement and the website terms (the contractual documentation).
+One must then consider whether this characterisation represents the economic reality of the situation, and, finally, one must determine the result of this characterisation under article 306 [34].
+The contractual documentation makes it clear that, both as between Med and the hotelier, and as between Med and the customer, the hotel room is provided by the hotelier to the customer through the agency of Med.
+The customer pays the gross sum to the hotelier on the basis that the amount by which it exceeds the net sum is to be Meds commission as agent [36].
+None of the provisions of the contractual documentation relied on by HMRC is inconsistent with Med acting as the hoteliers agent: they merely reflect the relative bargaining positions of Med and the hoteliers.
+They do not alter the nature of the relationship between Med, the hotelier and the customer [37] [44].
+The EU law It is clear from the guidance given by CJEU that the concepts of an intermediary and an agent are similar, as are the concepts of a person dealing in his own name and a principal [55].
+In deciding whether article 306.1(a) or 306.1(b) applies, the approach laid down by the CJEU in order to determine whether a person such as Med is an intermediary is very similar to the approach applied in English law to determine whether Med was an agent [56].
+For the same reasons that the contractual documentation supports the notion that Med was an agent, it also supports the conclusion that Med was an intermediary, and the economic reality does not assist a contrary view [57].
+Once it has been decided that Med was the hoteliers agent in relation to the supply of accommodation to customers as a matter of English law, it follows, at least on the facts of this case, that it was an intermediary for the purpose of article 306.1 [58].
diff --git a/UK-Abs/test-data/summary/full/uksc-2013-0057.txt b/UK-Abs/test-data/summary/full/uksc-2013-0057.txt
new file mode 100644
index 0000000000000000000000000000000000000000..b6d0cf115c8f216f0c3dbf12221503f9e0e763c4
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2013-0057.txt
@@ -0,0 +1,28 @@
+The present appeal is from Guernsey, where there is no equivalent of the 2006 Act.
+The common laws of England and Guernsey are agreed to be identical in this area.
+The principal issues are: (1) whether the reasoning in Barker still applies in Guernsey [8], and means that an employers liability insurer covering an employer for only part of the period during which the employer exposed a victim is liable for only a pro rata part of the employers liability to the victim [9], and (2) if Barker does not apply and the position in Guernsey is now the same as in the UK under the 2006 Act, whether such an insurer is liable in the first instance for the whole of the employers liability to the victim, and (3) if so, whether the insurer has pro rata rights to contribution from any other insurer of that employer and/or from the employer in respect of any periods not covered by the insurer [9].
+There are parallel issues regarding such an insurers responsibility for defence costs incurred in meeting the victims claim.
+For 27 years from 1961 to 1988, Mr Carr was negligently and consistently exposed to asbestos dust by his employer, Guernsey Gas Light Co Ltd (GGLCL).
+He later contracted mesothelioma, from which he died [10].
+Before his death, he sued the Respondent (IEG), as successor in title of GGLCL, and recovered compensation of 250,000 damages and interest plus 15,300 towards his costs.
+IEG also incurred defence costs of 13,151.60 [11].
+During the 27 years of exposure GGLCL had two identifiable liability insurances, one with Excess Insurance Co Ltd, for two years from 1978 to 1980, the other with Midland Assurance Ltd, for six years from 1982 to 1988 [12].
+The Appellant (Zurich), as successor to Midlands liabilities, maintains that it is only liable to meet 22.08% of IEGs loss and defence costs, based on the fact that Midland only insured GGLCL for 6/27ths of the 27 year period
+of exposure [14].
+The trial judge ordered Zurich to meet 22.08% of the compensation but 100% of defence costs.
+The Court of Appeal ordered Zurich to pay 100% of both the compensation and defence costs [15].
+Zurich appeals in relation to both compensation and defence costs.
+The Supreme Court unanimously holds that the common law rule of proportionate recovery established in Barker [2006] UKHL 20 continues to apply in Guernsey; it accordingly allows Zurichs appeal in respect of compensation; but it dismisses the appeal in relation to defence costs [35 and 100].
+The judges order is therefore restored.
+The other issues do not in these circumstances arise, but, because of their general importance, the Supreme Court states its opinion on them.
+By a majority of 4 3 the Court concludes that, had the position in Guernsey been as in the UK under the 2006 Act, Zurich would have been liable in the first instance to meet IEGs claim in respect of the compensation paid by IEG in full, but would have been entitled, in respect of the 21 years not covered by the Midland insurance, to claim pro rata contribution from the Excess and IEG [96].
+Lord Mance (with whom Lords Clarke, Carnwath and Hodge agree) gives the leading majority judgment, and Lord Sumption (with whom Lords Neuberger and Reed agree) the leading minority judgment.
+Lord Hodge gives a separate judgment, as does Lord Neuberger and Lord Reed.
+(1) All members of the Court agree that the common law rule in Barker remains unaltered in Guernsey where the 2006 Act does not apply. [27 31].
+Only 22.08% of IEGs loss is thus attributable to the period of the Midland insurance for which Zurich must answer [35]. (2) The defence costs are different.
+They would have been incurred in defending the claim whatever the total period of exposure by GGLCL.
+They were incurred with insurers consent, in defending a claim for damages for injury or disease caused during the Midland insurance period within the meaning of the main insuring clause.
+Under the rule in Fairchild, as applied in Trigger, mesothelioma is caused in any period in which exposure occurs which materially contributed to the risk of contracting mesothelioma [36 39]. (3) Had Guernsey had an equivalent to the 2006 Act, IEG would have been liable to Mr Carr for his full 100% loss whether it had exposed him to asbestos for actual 27 years or only for the 6 years of the Midland insurance cover.
+But it would be anomalous if Zurich had to answer for the full 100% loss without any defence or right of recourse.
+In this situation, the majority holds that, although Zurich must in the first instance answer for the full 100%, Zurich has equitable rights to contribution pro rata from any other insurer (such as Excess) able to contribute and, in respect of any period where there is no such insurer, from IEG itself. [42 54], [63] and [77 78].
+The minority considers that Zurich is only liable to IEG in the first instance for 22.08% of the full loss [180 187]. (4) Lord Mances judgment also discusses the position under the Third Party (Rights against Insurers) Act 1930 had IEG been insolvent, and concludes that it is probable that Mr Carr would in such a case have been able to look to Zurich for his full 100% loss [97].
diff --git a/UK-Abs/test-data/summary/full/uksc-2013-0083.txt b/UK-Abs/test-data/summary/full/uksc-2013-0083.txt
new file mode 100644
index 0000000000000000000000000000000000000000..01635ed9b393bc9d38c41b4e99c2b8bb38e4d711
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2013-0083.txt
@@ -0,0 +1,39 @@
+This case relates to the liquidation of Letham Grange Development Company Limited (LGDC) and the question whether its sale of a hotel and adjoining golf courses (the subjects) was a gratuitous alienation, ie. a property transaction conducted for significantly less than market value.
+Section 242 of the Insolvency Act 1986 provides that an alienation made by a company within two years of its winding up is challengeable by the liquidator.
+On such a challenge being brought, the court shall grant decree of reduction setting the alienation aside, unless, in particular, the alienation was made for adequate consideration.
+The section contains a proviso preserving any right or interest acquired in good faith and for value from or through the transferee in the alienation. [3] The subjects were bought by LGDC in November 1994 for just over 2m.
+In February 2001, it sold them to the second appellant, NSL.
+The consideration recorded in the disposition was 248,100.
+LGDC went into liquidation in December 2002.
+The value of the subjects at the time was estimated at about 1.8m.
+In January 2003, NSL granted a standard security (a charge) over the subjects in favour of Foxworth Investments Limited.
+Later that year, the liquidator of LGDC, Mr Henderson, began proceedings against NSL seeking the reduction of the 2001 disposition on the grounds that the sale was a gratuitous alienation, an unfair preference or a fraudulent preference.
+He obtained a decree by default in 2009 when NSL failed to be represented at the proof (trial) [2].
+The liquidator then brought these proceedings, seeking reduction of Foxworths standard security.
+He argues that Foxworth cannot bring itself within the section 242 proviso since it knew at the time when it obtained the standard security that LGDC was in liquidation and that the sale by LGDC to NSL was open to challenge under section 242.
+The relevant decisions of all three companies were made by their common director and directing mind, Mr Liu [3].
+The appellants claim that, in addition to the sale price recorded in the disposition, NSL had also assumed debts of 1.85m owed by LGDC to Mr Liu and his family, so that the sale was not a gratuitous alienation.
+This, they say, brought Foxworth within the scope of the proviso, having obtained the standard security in good faith and for value [4].
+The Lord Ordinary, Lord Glennie, rejected the liquidators case that the sale was a gratuitous alienation.
+The liquidator sought to establish that the documentation relating to the assumption of the LGDC debts had not been prepared on the dates it bore, but had been produced subsequently to support a false case that the assumption formed part of the consideration for the sale of the subjects [22].
+But Lord Glennie accepted Mr Lius evidence on the point [23].
+Lord Glennies decision was reversed on appeal by an Extra Division of the Inner House of the Court of Session, which found that the judge had erred in law.
+In the absence of a finding that the assumption of any debts by NSL had occurred at the time of the sale and had therefore formed part of the consideration, he had not been entitled to hold that there had been adequate consideration or (given Mr Lius knowledge of the circumstances) that Foxworth had obtained the standard security in good faith [6].
+The Extra Division also considered that Lord Glennie had failed to give satisfactory reasons for the factual conclusions he had reached on the evidence, particularly on whether there had, at the time of the sale, been an assumption by NSL of LGDCs debts to Mr Liu.
+The Extra Division concluded that the sale had been a gratuitous alienation and that Foxworth had not obtained its rights under the standard security in good faith or for value [7].
+The court unanimously allows the appeal by Foxworth and NSL.
+Lord Reed delivers the main judgment, with which the other Justices agree.
+Lord Reed sets out the principles governing review of a trial courts findings of fact [58 69].
+The Extra Division was correct to identify that an appellate court can interfere where satisfied that the trial judge has gone plainly wrong, but it erred in concluding that this criterion was met in the present case [62].
+Plainly does not refer to the degree of confidence felt by the appellate court that it would not have reached the same conclusion as the trial judge.
+What matters is whether the decision under appeal is one that no reasonable judge could have reached [62]; that the decision cannot reasonably be explained or justified [66 68].
+Lord Glennie did not err in law; he clearly understood the critical issue under section 242(4)(b) to be whether the alienation was made for adequate consideration [22].
+He was aware that an obligation on the part of NSL could only constitute part of the consideration for the sale if it was undertaken as the counterpart of the obligations undertaken by LGDC [25].
+His opinion had understandably focused on the question on which the parties had joined issue, namely whether not when any obligation was taken to assume the LGDC debts [26].
+Lord Glennie was entitled to accept Mr Lius evidence on this point [27].
+Lord Reed rejects the criticisms made of Lord Glennies treatment of the evidence [29 57].
+The fact that Lord Glennie was less impressed by the liquidators case than the Extra Division reflected a careful and nuanced assessment of the evidence, and an understanding of the commercial realities [29].
+He had taken into account the various criticisms of Mr Lius evidence before concluding that his evidence was credible and reliable.
+The weight given to the material evidence was pre eminently a matter for the Lord Ordinary, subject only to the requirement that his findings be such as might reasonably be made [57].
+Before the Supreme Court, the parties accepted that no prejudice would be occasioned by remitting the question of expenses in the Outer House to the Lord Ordinary [72].
+They are invited to make submissions as to the appropriate form of order [73].
diff --git a/UK-Abs/test-data/summary/full/uksc-2013-0158.txt b/UK-Abs/test-data/summary/full/uksc-2013-0158.txt
new file mode 100644
index 0000000000000000000000000000000000000000..d9eb8f560f943b9f9a9375d8684d1ac2547a1e84
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2013-0158.txt
@@ -0,0 +1,26 @@
+Olympic Airlines SA was wound up by a court in Athens on 2 October 2009.
+The main liquidation proceedings are ongoing in Greece.
+The company pension scheme has a 16m deficit.
+Olympic Airlines SA is liable to make good the deficit by s 75 of the Pensions Act 1995.
+It is unlikely to be able to do so.
+Members of the pension scheme are eligible for compensation under the Pensions Act 2004 from the UKs Pension Protection Fund in respect of the shortfall.
+Such compensation is payable from the date when a qualifying insolvency event occurred.
+There are two possible dates in this case.
+The first possible date is 20 July 2010, which is when the trustees of the pension scheme presented a winding up petition in England.
+The winding up of a company under the Insolvency Act 1986 is a qualifying insolvency event: Pensions Act 2004, s 121(3)(g).
+English courts have jurisdiction to wind up a foreign company under the Insolvency Act 1986.
+However, under EU Regulation 1346/2000 on Insolvency Proceedings (the Regulation), where (as here) the company has its centre of main interests in another member state of the European Union, the English court is only permitted to wind it up if it has an establishment in England, meaning any place of operations where the debtor carries out a non transitory economic activity with human means and goods (article 2(h)).
+The second possible date is 2 October 2014, which is the fifth anniversary of the commencement of the proceedings in Greece.
+The possibility of treating this date as the date of a qualifying insolvency event in the specific circumstances of this case was created by a change in legislation subsequent to the Court of Appeals decision in this case refusing to make a winding up order on the basis of lack of jurisdiction: Pension Fund (Entry Rules) (Amendment) Regulations 2014.
+The trustees of the pension scheme would prefer compensation to be treated as payable from the earlier of those two dates, namely 20 July 2010.
+The only question for the court is therefore whether Olympic Airlines SA had an establishment in the UK on 20 July 2010 entitling the English court to make a winding up order under the Regulation, so that it can be said that a qualifying insolvency event occurred on that date.
+By 20 July 2010, Olympic Airlines SA had: closed all of its offices in the UK except for its head office at 11 Conduit Street in London; ceased all commercial operations; and terminated the contracts of all remaining UK staff except for the General Manager, the Purchasing Manager, and an accounts clerk, who were retained on short term ad hoc contracts to implement instructions from the liquidator in Athens, supervise the disposal of the companys assets in the UK, and pay bills and conduct other administration relating to the head office building.
+At first instance, the judge held that these activities constituted non transitory economic activities and Olympic Airlines SA therefore had an establishment in the UK entitling him to make the winding up order.
+The Court of Appeal disagreed and held that the remaining activity consisted only in the winding up of the companys affairs, which was not enough to give the court jurisdiction to make the order.
+The trustees of the pension scheme appeal from the Court of Appeals decision.
+The Supreme Court unanimously dismisses the appeal.
+Lord Sumption gives the only judgment.
+Lord Sumption holds that the Regulations definition of establishment, which must be read as a whole, envisages a fixed place of business and business activity carried on there consisting in dealings with third parties, and not merely acts of internal administration [13].
+For example, disposal of stock in trade would clearly satisfy the definition, but mere internal administration of the winding up including administration of remaining premises in the UK would not [14].
+Olympic Airlines SA was not carrying on business activity at its head office on 20 July 2010 and did not therefore have an establishment in the UK at that date [16].
+The requirement of showing at least some subsisting business with third parties is acte clair and so no reference to the Court of Justice of the European Union is necessary [16].
diff --git a/UK-Abs/test-data/summary/full/uksc-2013-0161.txt b/UK-Abs/test-data/summary/full/uksc-2013-0161.txt
new file mode 100644
index 0000000000000000000000000000000000000000..4e2b8fa9ba67f34a24905d59ed5c171d4022ced0
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2013-0161.txt
@@ -0,0 +1,44 @@
+These two appeals concern the claims of two EU nationals to claim benefits in the United Kingdom.
+Ms Mirga was born in Poland and, having previously lived in the UK with her parents for four years, moved back here in 2004.
+The benefit rights of people from Poland in the UK were mostly governed by the Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004/1219) (the A8 Regulations) which were enacted to give effect to the Treaty on Accession 2003 (the Accession Treaty) under which Poland (and seven other countries) joined the EU.
+After finishing her education in April 2005, she carried out registered work within the meaning of the A8 Regulations for seven months.
+She then became pregnant and did around three months of unregistered work.
+Ms Mirga claimed income support in August 2006 under the Income Support (General) Regulations (SI 1987/1967) (the Income Support Regulations) on the grounds of pregnancy.
+The Secretary of State refused Ms Mirgas application for income support and his decision was upheld by the First tier Tribunal.
+The Upper Tribunal and then the Court of Appeal affirmed that decision, on the ground that Ms Mirga did not have a right of residence in the UK under the A8 Regulations and therefore was excluded from income support by the Income Support Regulations.
+Mr Samin was born in Iraq in 1960.
+In 1992, he and his family were granted asylum in Austria in 1992 and he was granted Austrian citizenship the following year.
+He then became estranged from his wife and children and came to the UK in December 2005, since when he has lived here alone.
+Where the A8 Regulations do not apply, the benefit rights of EU nationals in the UK are mostly governed by the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) (the EEA Regulations), issued pursuant to EU Directive 2004/38/EC (the 2004 Directive).
+Mr Samin is socially isolated and suffers from poor mental and physical health.
+Mr Samin occupied private accommodation until 2010, when he applied to Westminster City Council (the Council) for housing under the homelessness provisions of the Housing Act 1996 (the Housing Act).
+The Council decided that he was a person from abroad who is not eligible for housing assistance within the meaning of section 185(1) of the Housing Act, because he did not have the right of residence in the UK under the EEA Regulations.
+That decision was affirmed in the Central London County Court, whose decision was in turn upheld by the Court of Appeal.
+The Supreme Court unanimously dismisses both Ms Mirgas and Mr Samins appeals for reasons set out in a judgment given by Lord Neuberger (with which Lady Hale, Lord Kerr, Lord Clarke and Lord Reed agree).
+Submissions of the parties The Secretary of State contended that the Court of Appeals decisions were right.
+At the time she applied for it, Ms Mirga was ineligible for income support because she was a person from abroad, and could not claim to be a worker as she was an A8 national who had not done 12 months employment and thus could not qualify under the A8 Regulations.
+Even if the A8 Regulations did not apply, the Secretary of State argued, Ms Mirga would not have been a worker under the EEA Regulations as she had not worked for 12 months before claiming income support [36].
+In respect of Mr Samin, the Council contended that he was not a worker within the EEA Regulations because he is now incapable of work and had not worked for 12 months in the UK [37].
+In response to these contentions, two arguments were raised on behalf of Ms Mirga and Mr Samin.
+The first argument rested on the Treaty on the Functioning of the European Union (the TFEU).
+Ms Mirga contended that, given her right to respect for family and private life under article 8 of the European Convention on Human Rights, and given that she had been a worker, albeit not for the requisite period under the A8 Regulations (or the EEA Regulations), she could not be removed from the UK; accordingly, she contended, her right of residence under article 21.1 of TFEU could not lawfully be cut back by restricting her right to income support as the Income Support Regulations purport to do [38, 41].
+Mr Samin argued that refusal of housing assistance to him constituted unlawful discrimination contrary to article 18.1 of the TFEU because such assistance would have been accorded to a citizen of the UK or a qualifying member from another member state who was in the same position as Mr Samin [39, 42].
+Ms Mirgas alternative argument was that, even if the Income Support Regulations could have the effect for which the Secretary of State contended, it would only be so if it could be shown that providing her with income support would be disproportionate i.e. if it would place an unreasonable burden on the UK social assistance system, and there has been no inquiry into that question [38, 58].
+To much the same effect, Mr Samins alternative argument was that the refusal of housing allowance to him could only be justified if it could be shown that the grant of such an allowance would be disproportionate and there had been no inquiry into that question [58].
+The first issue: do the domestic Regulations infringe the appellants TFEU rights? The right accorded to Ms Mirga by article 21.1 of TFEU is qualified by the words subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.
+In the present case, the measures include the Accession Treaty and the 2004 Directive, and hence the A8 Regulations and the EEA Regulations respectively [43].
+A significant aim of these measures was to ensure that EU nationals from one member state should not be able to exercise their rights of residence in another member state so as to become an unreasonable burden on the social assistance system.
+Further, any right of residence after three months can be subject to conditions, and EU nationals can be refused social assistance where appropriate [44].
+Whether the Accession Treaty or the 2004 Directive applied, Ms Mirga has not done 12 months work in the UK, and therefore cannot claim to be a worker, and she is not a jobseeker, self employed, a student or self sufficient.
+Therefore she can be validly denied a right of residence in the UK and can be excluded from social assistance.
+Article 21.1 of TFEU therefore cannot assist her [45].
+The article 18 right claimed by Mr Samin is limited to the scope of the Treaties, which means that it only comes into play where there is discrimination in connection with a right in the TFEU or another EU treaty.
+Further, the right is without prejudice to any special provisions contained in the Treaties.
+Therefore, Mr Samins argument fails for the same reasons that Ms Mirgas does [47].
+Examination of recent judgments of the Court of Justice of the European Union (CJEU), especially Dano v Jobcenter Leipzig [2015] All ER (EC) 1 and Case C 67/14 Jobcenter Berlin Neukolin v Alimanovic clearly support this conclusion. [48 57] The second issue: the arguments based on lack of proportionality The argument that the determinations of the courts and tribunals below in relation to Ms Mirgas claim and Mr Samins claim were flawed because no consideration was given to the proportionality of refusing each of them social assistance is rejected.
+The judgments of the CJEU relied on by the appellants do not support the argument [58 66].
+On the other hand, the judgment and reasoning in Dano, supported by the judgment in Alimanovic undermine the argument [66, 67, 71].
+It is unrealistic to require an individual examination of each particular case, as is recognised by the jurisprudence from the CJEU [68].
+Where a national of another member state is not a worker, self employed or a student and had no, or very limited, means of support and no medical insurance, it would undermine the whole thrust of the 2004 Directive if proportionality could be invoked to entitle that person to have the right of residence and social assistance in another member state, save perhaps in extreme circumstances [69].
+It would also place a substantial burden on a host member state if it had to carry out a proportionality exercise in every case where the right or residence or the right against discrimination was invoked [69].
+Even if there is a category of exceptional cases where proportionality would come into play, Mr Samin and Ms Mirga do not fall into it [70].
diff --git a/UK-Abs/test-data/summary/full/uksc-2013-0243.txt b/UK-Abs/test-data/summary/full/uksc-2013-0243.txt
new file mode 100644
index 0000000000000000000000000000000000000000..b4a53d2280db1a9bf9fb680b7c8ff87e062f722f
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2013-0243.txt
@@ -0,0 +1,42 @@
+On 4 January 2011, Mrs Sylvie Beghal passed through East Midlands Airport with her three children on returning from visiting her husband in Paris, a French national in custody on terrorist offences.
+She was stopped by police and, although not formally detained, arrested or suspected of being a terrorist, was told they needed to speak to her to establish whether she was involved in terrorist acts.
+The police did this exercising the power under Paragraph 2 of Schedule 7 of the Terrorism Act 2000, which deals with questioning individuals at ports or borders for the purpose of determining whether he appears to be [or to have been concerned in the commission, preparation or instigation of acts of terrorism].
+No reasonable suspicion of a past or future offence is needed.
+Under other provisions of Schedule 7, officers may also: require the production of documents carried; copy and retain material; and, search and detain (currently for a maximum of 6 hours) individuals.
+By way of sanction, Paragraph 18 of Schedule 7 of the Terrorism Act 2000 makes it a criminal offence, on pain of fine and/or imprisonment, wilfully to fail to comply with such requirements.
+A Code of Practice exists for officers exercising these powers.
+Mrs Beghal sent her two eldest children to the arrivals gate, asked for a lawyer (with whom she spoke on the phone) and requested and was granted an opportunity to pray.
+She was searched and in the absence of the lawyer was asked, amongst other questions, about her relationship with her husband, her reasons for travel, where she had stayed and whether she had travelled beyond France.
+She refused to answer most of the questions and was charged with the offence of wilful failure to comply with the requirement to answer questions.
+The questions and reporting her for failure to answer them lasted under half an hour.
+She later pleaded guilty to this offence and her sentence was a conditional discharge.
+Mrs Beghal brought proceedings arguing that the Schedule 7 powers breached her Article 5 (right to liberty), Article 6 (privilege against self incrimination) and Article 8 (right to respect for private and family life) rights under the European Convention on Human Rights (ECHR).
+The Divisional Court dismissed her claims.
+The Supreme Court dismisses the appeal by a majority of 4 1 (Lord Kerr dissenting).
+Lord Hughes delivers the lead judgment.
+Lord Neuberger and Lord Dyson give a joint concurring opinion.
+Powers of questioning and search and inspecting, copying and retaining data on electronic devices Article 8 ECHR Questioning and search under compulsion undoubtedly constitutes an interference with Article 8(1) ECHR [28].
+As to justification under Article 8(2) ECHR, it is in accordance with the law as there are sufficient safeguards and controls against overbroad and arbitrary use of this power [45].
+These include, for example, the restrictions on the location, duration and type of questioning and search, the requirement to permit consultation with a solicitor, the availability of judicial review and the supervision
+of the Independent Reviewer of terrorism legislation [43].
+The fact that questioning does not require objective grounds for suspicion does not by itself mean that the safeguards are inadequate [44].
+The power is also proportionate: (i) questioning and search at ports is rationally connected to the proper objective of Schedule 7, which is preventing and detecting terrorism [47]; (ii) to require reasonable suspicion before using the power would not achieve anything like the same utility in fighting the threat of terrorism [49]; and, (iii) it also represents a fair balance between the rights of individuals and the interests of community at large; the level of intrusion is comparatively light and not beyond the reasonable expectations of international travellers and the importance of preventing and detecting acts of terrorism can scarcely be overstated [48, 51].
+There is also no substantial risk of these powers being used on a racially discriminatory basis.
+The statistics show that the exercise of Schedule 7 powers is proportionate to the terrorist population, considering the sources of the terrorist threat, that travels through UK ports [50].
+Retaining electronic data is a considerable intrusion into the private life of an individual [57].
+It may well be that retention longer than an initial inspection for a reasonable period can only be justified if there exist objectively established grounds for suspicion [58].
+This power, however, was not used in the case of Mrs Beghal.
+Power to detain Article 5 ECHR The power to detain for six hours falls within Article 5(1)(b) ECHR and involves a greater level of intrusion than questioning and search [52].
+Nonetheless, restricting an individuals movement in order to exercise the questioning and search power, and for no more than is necessary, will either not be a deprivation of liberty or will be justified [54].
+The better view is that detention beyond what is necessary to complete the process of questioning and search for example, for six hours can only be justified by objectively demonstrated suspicion [55].
+However, in this case any deprivation of Mrs Beghals liberty was for no longer than was necessary for the completion of the process [56].
+Privilege against self incrimination Article 6 ECHR Schedule 7 excludes privilege against self incrimination as it is by necessary inference abrogated by the words of the statute [64].
+Moreover, the risk of prosecution based on answers to Schedule 7 is not a real and appreciable one; in practice section 78 of the Police and Criminal Evidence Act 1984 (PACE) would inevitably render such evidence inadmissible.
+Article 6 ECHR would also compel the same result [65 66].
+As port questioning and search is not part of a criminal investigation, the individual is not a person charged for the purposes of Article 6 ECHR so that Article 6 ECHR has no application [69].
+Lord Kerr (dissenting) would find that the Schedule 7 powers are incompatible with Articles 5, 6 and 8 ECHR: (i) they are not in accordance with the law.
+The potential for arbitrary or discriminatory exercise of the powers is apparent from the Code of Practice [103 104].
+Moreover, a crucial element of this requirement is to make it possible to examine whether the powers have been used proportionately.
+Where the Schedule 7 powers can be exercised without any suspicion whatsoever there is simply no material to judge whether they are being used proportionately [106]; (ii) the powers are greater than necessary to accomplish the aims; there is no evidence that such suspicion less powers are the only way to achieve the goal of combatting terrorism and no reasoned justification has been given for granting examining officers such powers [122, 124]; (iii) a proper balance has not been struck between the rights of the individual and the interests of the community [126 127].
+Lord Kerr further finds that the requirement to answer questions breaches an individuals common law privilege against self incrimination and is incompatible with Article 6 ECHR.
+There is, inescapably, a real and appreciable risk of prosecution if answers to the questions posed prove to be self incriminating [115].
diff --git a/UK-Abs/test-data/summary/full/uksc-2013-0266.txt b/UK-Abs/test-data/summary/full/uksc-2013-0266.txt
new file mode 100644
index 0000000000000000000000000000000000000000..b90affecfa261491339d41579a3d76805bc658f0
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2013-0266.txt
@@ -0,0 +1,25 @@
+The appellants in these cases challenged the validity of an amendment to the Immigration Rules in 2010 requiring a foreign spouse or partner of a British citizen or person settled in the United Kingdom to pass a test of competence in the English language before coming to live here (rule E ECP 4.1 and E LTRP 4.1 in Appendix FM) (the Rule).
+They argued that the Rule itself is an unjustifiable interference with the right to respect for private and family life protected by article 8 of the European Convention on Human Rights (ECHR) and/or is unjustifiably discriminatory in securing the enjoyment that right contrary to article 14, or unlawful by reason of its irrationality.
+The Governments objectives in introducing the pre entry English requirement for spouses and partners were (a) to assist the spouse or partners integration into British society at an early stage, (b) to improve employment chances for those who have access to the labour market, (c) to raise awareness of the importance of language and to prepare for the tests that the spouses or partners would later have to pass to settle indefinitely in the UK, (d) to save translation costs, (e) to benefit any children the couple might have and (f) to reduce the vulnerability of newly arrived spouses, especially women.
+The Rule requires spouses and partners to show the ability to speak English at a basic level by passing a test with an approved test provider unless exceptional circumstances are shown.
+Guidance accompanying the Rule makes it clear that exceptional circumstances will rarely arise and do not include financial reasons or lack of literacy.
+The appellants are UK citizens who have been married to foreigners since 2009 and 2010 respectively.
+Their husbands are unable to satisfy the pre entry language requirement, in Saiqa Bibis case because he would have to relocate to Rawalpindi in Pakistan for several months, which is not affordable, and in Mrs Alis case because there is no test centre in the Yemen where they have had to live.
+The High Court held that the Rule itself was not unlawful.
+The Court of Appeal by a majority upheld the High Courts decision.
+The Supreme Court unanimously dismisses the appeal in respect of the finding that the Rule itself does not infringe article 8, but it invites further submissions from the parties on whether a declaration should be made that the operation of the Guidance in its present form is incompatible with article 8 rights where compliance with the requirement is impracticable.
+Three justices give substantive judgments: Lady Hale (with whom Lord Wilson agrees), Lord Hodge (with whom Lord Hughes agrees) and Lord Neuberger.
+The right to respect for family life guaranteed by the ECHR includes the right of married couples to live together, but article 8 does not impose a general obligation on the part of a state to respect the choice by married couples of the country of their matrimonial residence and to accept the non national spouses for settlement in that country [25 26].
+However, interference with the right must still be proportionate, striking a fair balance between the interests of the individuals and the community as a whole [29]: The six objectives of the Rule are intended to protect the interests of the economic well being of the country or perhaps the protection of the rights and freedoms of others.
+Assisting the spouse or partners integration into British society at an early stage is undoubtedly an important and benign aim for which even a basic level of English language skills would be of some benefit.
+Evidence filed by the appellants casts doubt on the value of the test in getting the learner off to a flying start compared with the opportunities to learn after arrival, but the aim is legitimate and sufficiently important to justify interference with the article 8 right [30 45] There is a rational connection between the Rule and the aim it seeks to achieve.
+It will make a contribution to the overall aim of promoting integration [46] The Rule is no more than necessary to achieve this contribution [47 48] The impact of the pre entry language requirement has not been systematically studied by the Secretary of State but it is obvious that at an individual level access to appropriate tuition and a test centre may prove such an obstacle that it amounts to an unjustified interference with their partners article 8 rights [50].
+However, the problem lies not in the Rule itself but in the restrictive interpretation of exceptional circumstances in the Guidance which means there are likely to be a significant number of cases in which the present practice does not strike the fair balance required by article 8 [53 55].
+The discrimination claim adds nothing to the claim under article 8: the exemption for nationals of Anglophone countries makes sense and direct discrimination on grounds of nationality could be justified under article 14 [56 59].
+Accordingly, the Rule itself is not disproportionate.
+Lady Hale suggests that the appropriate solution to avoid infringements in individual cases would be to recast the Guidance to grant exemptions in cases where compliance with the requirement is simply impracticable, and one remedy might be for the court to declare that the present application of the Guidance is incompatible with the rights of individuals in such circumstances.
+Since this was not a remedy sought by the appellants the Court should invite further submissions before finally deciding the outcome of the appeal [55, 60].
+Lord Hodge agrees that there is no basis for striking down the Rule and that the Guidance may result in a significant number of cases in which the article 8 rights of individuals will be breached, where, for example the cost is inordinate.
+He is not persuaded that a declaration relating to the Guidance is appropriate but is content to reach a concluded view after further submissions [61 76].
+Lord Neuberger agrees that the Guidance seems bound to result in the infringement of article 8 rights in individual cases but that the Rule itself is not disproportionate, bearing in mind the wide measure of discretion which should be accorded to the executive in a case such as this and the research that was done in anticipation [98].
+He is sympathetic to the proposed declaration relating to the Guidance but agrees that it would be wrong to make it without considering further submissions [104].
diff --git a/UK-Abs/test-data/summary/full/uksc-2013-0273.txt b/UK-Abs/test-data/summary/full/uksc-2013-0273.txt
new file mode 100644
index 0000000000000000000000000000000000000000..c5c6a4e2073e3efc9e30c7fbc9a1f7b5160b91fa
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2013-0273.txt
@@ -0,0 +1,36 @@
+Section 28 of the Housing Act 1988 The Housing Act 1988 (the 1988 Act) was brought in with a view to stimulating the availability of rented accommodation in the private sector; it allowed landlords to let new tenancies on terms more advantageous to themselves [4].
+Parliament included safeguards to deter unscrupulous landlords from evicting existing tenants with protected tenancies [15].
+Section 27 of the 1988 Act provides the right to claim damages for unlawful eviction [6].
+Section 28 sets out the method by which such damages are calculated, being the difference in value between two alternative calculations of the landlords interest in the building at the time immediately prior to the unlawful eviction: (1) The basis for the assessment of damages [for unlawful eviction] is the difference in value, determined as at the time immediately before the residential occupier ceased to occupy the premises in question as his residence, between (a) the value of the interest of the landlord in default determined on the assumption that the residential occupier continues to have the same right to occupy the premises as before that time; and (b) the value of that interest determined on the assumption that the residential occupier has ceased to have that right. (2) In relation to any premises, any reference in this section to the interest of the landlord in default is a reference to his interest in the building in which the premises in question are comprised (whether or not that building contains any other premises) together with its curtilage. (3) For the purposes of the valuations referred to in subsection (1) above, it shall be assumed (a) that the landlord in default is selling his interest on the open market to a willing buyer Mr Loveridges flat at 19 Moresby Walk From November 2002 Mr Loveridge lived in the downstairs flat at 19 Moresby Walk, a two storey house.
+Both his flat and the upstairs flat were owned by the London Borough of Lambeth (Lambeth) and let under secure tenancies conferring certain statutory protections.
+From July to December 2009 Mr Loveridge made a trip to Ghana.
+While he was away, Lambeth changed the locks on his flat and cleared his possessions, mistakenly believing that he had died.
+Two days after he returned to the UK, his flat was rented to somebody else [2].
+Mr Loveridge sued Lambeth for damages.
+The parties approaches to damages under section 28 Mr Loveridge and Lambeth each instructed a surveyor to value Lambeths interest in 19 Moresby Walk for the purposes of subsections 28(1)(a) and (b).
+Mr Loveridges surveyor calculated valuation (a) on the basis that 19 Moresby Walk was sold with both the upstairs and downstairs flats subject to secure tenancies.
+He calculated valuation (b) on the basis that 19 Moresby Walk was sold with vacant possession of the downstairs flat but with the upstairs flat subject to a secure tenancy.
+The difference in value was 90,500 [22].
+Lambeth adopted a different approach.
+It relied on subsection 28(3)(a), which requires both valuations (a) and (b) to be calculated on the assumption that the property is sold on the open market to a willing buyer [18].
+If 19 Moresby Walk had in fact been sold on the open market, say to a private landlord, the secure tenancies (which do not apply to private landlords) would have been converted into assured tenancies, thus allowing the new landlord to bring the rents up to market level [20].
+Lambeths surveyor therefore conducted valuation (a) on the basis that both flats were subject to assured tenancies.
+He concluded that valuation (b) produced the same figure as valuation (a) because the downstairs flat with vacant possession would be worth the same as if it were subject to an assured tenancy [23].
+The procedural history At the hearing in the Lambeth County Court, the judge found that Mr Loveridge had been unlawfully evicted.
+He preferred Mr Loveridges approach to the section 28 valuation exercise.
+On 25 September 2012 he awarded Mr Loveridge90,500 under section 28 and 9,000 at common law in respect of the trespass to his goods [2].
+Lambeth appealed against the quantum of damages.
+The Court of Appeal accepted Lambeths argument and 10 May 2013 set aside the section 28 award [1].
+It ordered Lambeth to pay 7,400 in damages at common law for unlawfully evicting Mr Loveridge, and, as before, 9,000 for trespass to goods.
+The Supreme Court unanimously allows the appeal and restores HHJ Blunsdons order for damages.
+Lord Wilson (with whom Lord Neuberger, Lord Sumption, Lord Carnwath and Lord Toulson agree) gives the judgment.
+The words of section 27 of the 1988 Act are wide enough to cover local authority landlords as well as public landlords, even though local authority landlords rarely perpetrate unlawful evictions of their tenants [15].
+Section 28(1) requires the court to make two valuations, namely (a) and (b), of the landlords interest [16].
+Valuation (a) is based on the assumption that the tenant continues to have the same right to occupy the premises, and the landlord continues to be subject to the same restrictions on recovering possession, as before the eviction occurred.
+Valuation (b) is based on the assumption that the tenants right to occupy and the restrictions on recovering possession have ceased [17].
+The issue in this case was whether the valuation of both the upstairs and downstairs flats at 19 Moresby Walk (for valuation (a)) and of the upstairs flat (for valuation (b)) should be conducted on the assumption that they were subject to secure tenancies or to assured tenancies [24].
+The assumption of a sale on the open market (subsection 28(3)(a)) is for the purposes of the valuations at subsection 28(1), in which other assumptions are mandated, namely (a) that the tenant continues to have the same right to occupy the premises as he had immediately prior to the eviction and, alternatively, (b) that he has ceased to have that right [26].
+Prior to eviction, Mr Loveridges right to occupy the downstairs flat was that of a secure tenant.
+The notional exercise required by subsection 28(3)(a) does not extend to making adjustments to the nature of the tenants rights that are consequent upon sale.
+Such adjustments are barred by subsection 28(1)(a) which stipulates that the same right continues [27].
+The likely effect upon a secure tenancy of a sale to a private landlord should not therefore be taken into account [28].
diff --git a/UK-Abs/test-data/summary/full/uksc-2014-0023.txt b/UK-Abs/test-data/summary/full/uksc-2014-0023.txt
new file mode 100644
index 0000000000000000000000000000000000000000..bb0cac0490be5a5c5bd697679932df1f0aee59f8
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2014-0023.txt
@@ -0,0 +1,33 @@
+Mr Aaron Hunt, born on 17 April 1991, suffers from ADHD, learning difficulties and behavioural problems.
+As a result, North Somerset Council (the Council) are statutorily required, so far as reasonably practicable, to secure access for him to sufficient educational and recreational leisure time activities for the improvement of his well being.
+On 21 February 2012, the Council made a decision to approve a reduction of 364,793 from its youth services budget for 2012/2013.
+Mr Hunt, concerned about the impact this would have on the provision of services for young persons with disabilities, brought judicial review proceedings of that decision.
+He argued that the decision was unlawful on two grounds: (1) the Council had failed its duty under section 507B of the Education Act 1996 to take properly into account the views of young persons with difficulties such as his; and, (2) it failed to fulfil its public sector equality duty under section 149 of the Equality Act 2010 to have due regard to the statutory equality needs of disabled individuals.
+He sought a declaration that the Councils decision was unlawful and an order that the decision be quashed.
+At the end of the High Court hearing, but before giving judgment, Wyn Williams J asked the parties barristers for written submissions on relief in the event that he found in favour of Mr Hunt.
+The note provided by Mr Hunts barristers stated that he sought a quashing order but made no reference to a declaration.
+Ultimately, Wyn Williams J rejected Mr Hunts challenges to the legality of the decision.
+Mr Hunt was ordered to pay the Councils costs, subject to a proviso against enforcement of the costs order without further permission of the Court.
+The Court of Appeal allowed Mr Hunts appeal on both grounds.
+It, nonetheless, refused to make a quashing order, considering that it was too late to unwind the entire revenue budget for the financial year.
+It also ordered him to pay half of the Councils costs.
+Mr Hunts barristers did not make alternative submissions about declaratory relief so no mention was made of this in the Court of Appeals judgment.
+Mr Hunts barristers did not raise this omission on receiving the judgment in draft and did not make suggestions as to the appropriate form of the order in light of the judgment.
+The Councils barristers prepared a draft order stating that the appeal was dismissed.
+Mr Hunts barristers stated in written submissions that the parties were agreed on the order except in relation to costs.
+Mr Hunt appealed to the Supreme Court on the basis that the Court of Appeal should have made: (1) a declaration that the Council had failed in its statutory obligations; and, (2) an order for costs in his favour.
+The Supreme Court unanimously allows the appeal in relation to costs but dismisses it in relation to declaratory relief.
+Lord Toulson delivers the judgment of the Court.
+Declaratory relief Lord Toulson rejects Mr Hunts argument that the Court of Appeal should have made a declaration of its own initiative.
+The judgment of the Court of Appeal itself contained a ruling that the Council acted unlawfully and the authority of its judgment would be no greater or less by making or not making a declaration in the form of the order to the same effect.
+A court is not required to make declaratory orders where, although a finding of illegality has been made, it is not asked to make a declaratory order by a partys experienced legal representatives [12].
+Costs In relation to costs, although courts have wide discretion in this matter, the Court of Appeal fell into error by treating the Council as the successful party.
+As the Court of Appeal rejected the Councils case on the two issues, it was only successful in the limited sense that the findings of failure came too late to do anything about what had happened in the past, although this occurred through no fault on Mr Hunts part.
+It was unsuccessful on the substantive issues regarding its statutory responsibilities [15].
+Indeed, the Court of Appeal judgment contained a lesson of general application for local authorities regarding the discharge by committee members of the Councils equality duty.
+In such circumstances, where a local authority is shown to have acted unlawfully, some good reason would have to be shown why a claimant should not recover his reasonable costs [16].
+Despite this, the reasons for limiting Mr Hunts order for costs in his favour in this case are that: he raised issues much wider than the issues on which he was given permission to appeal and which required detailed rebuttal; and, he persisted in seeking an unrealistic remedy a quashing order [17].
+Consequently, the Court of Appeals order should be set aside and substituted with an order that Mr Hunt recover two thirds of his costs both in the High Court and in the Court of Appeal [18].
+As to costs in this Court, although Mr Hunt is entitled to his reasonable costs, having succeeded in reversing the costs orders made by the courts below, a significant proportion of his argument was directed to the question of a declaration.
+This had no merit.
+Therefore, Mr Hunt should recover two thirds of his costs subject to either party making written submissions as to why a different order should be made [19].
diff --git a/UK-Abs/test-data/summary/full/uksc-2014-0073.txt b/UK-Abs/test-data/summary/full/uksc-2014-0073.txt
new file mode 100644
index 0000000000000000000000000000000000000000..9c4b3070e06143cbf10c5f9038fb726ee2fadd19
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2014-0073.txt
@@ -0,0 +1,43 @@
+In 2006 the United States of America (USA) closed a watercraft repair centre (the Base) which it maintained in Hampshire.
+Mrs Nolan was employed at the Base by the appellant and was dismissed for redundancy the day before it closed.
+Mrs Nolan complained that the appellant had failed to consult with any employee representative when proposing to dismiss her.
+The appellant denies any such duty.
+Mrs Nolan brought Employment Tribunal proceedings under Part IV Chapter II of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA) as amended by The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1995 (SI 1995/2587) (the 1995 Regulations).
+TULCRA as originally enacted by Parliament went beyond the requirements of European law under Council Directive 77/187/EEC (or now under Council Directive 98/59/EEC) in extending a right to be consulted prior to redundancies to employees of public administrative bodies, such as those at the Base.
+But it fell short of European law in that it was confined to circumstances where employees enjoyed union representation recognised by the employer.
+In 1994 the Court of Justice identified this failure, and in consequence the Secretary of State relying on the power to make secondary legislation conferred by section 2(2) of the European Communities Act 1972 (the 1972 Act) made the 1995 Regulations which amended TULCRA to require employee representatives to be designated for consultation purposes in all situations covered by TULCRA.
+On the basis of TULCRA as amended, Mrs Nolan succeeded before the Employment Tribunal and was granted an order for remuneration for a one month period.
+This Employment Appeal Tribunal upheld the order.
+The Court of Appeal referred to the Court of Justice the question whether the obligation to consult arose on a proposal or only on a decision to close the base (the UK Coal Mining and Fujitsu issue: see [2008] ICR 163 and Case C 44/08; [2009] ECR I 8163).
+The Court of Justice declined jurisdiction, holding that (i) Directive 98/59/EEC being an internal market measure covering economic activities, national defence and the dismissal of staff at a military base are outside its scope; and (ii) it was not appropriate to rule on a question relating to a public administrative establishment to which the Directive did not apply.
+The Court of Appeal ordered a further hearing of the UK Coal Mining/Fujitsu issues.
+The USA appeals to the Supreme Court on three grounds: (1) TULCRA should in the light of the Court of Justices ruling be construed as not applying to employment by a public administrative establishment, at least as regards non commercial (jure imperii) activity such as closure of a military base decided at the highest level in Washington;
+(2) the same result should be reached in the light of principles of international law and EU law; (3) In any event, the Secretary of State exceeded the powers conferred by s.2 of the 1972 Act when making the 1995 Regulations, in so far as these went further than EU law requires by protecting workers without trade union representation employed by public administrative establishments.
+The Supreme Court dismisses the USAs appeal by a majority of 4:1.
+The case is remitted to the Court of Appeal for determination, as necessary, of the UK Coal/ Fujitsu issues.
+Lord Mance gives the lead judgment, with which Lord Neuberger, Lady Hale and Lord Reed agree.
+Lord Carnwath dissents.
+Ground (1): That the present situation might not have been foreseen by the legislature is not a reason for reading into clear legislation a specific exemption which would not reflect the scope of any exemption in EU law, especially when the foreign state could have invoked state immunity but did not do so in time [24, 25].
+The USAs first submission is rejected [26].
+Ground (2): Jurisdiction is primarily territorial in both international and domestic law [29 30].
+TULCRA regulates the procedures for dismissal on the grounds of redundancy of employees at institutions in England, Wales and Scotland.
+The UK is not legislating extra territorially when it covers proposals or decisions about domestic redundancies developed or taken abroad [31].
+TULCRA contains no exception for such cases.
+The USAs submission would render largely otiose the procedures and time for a plea of state immunity.
+State immunity is an adjudicative bar separate from a foreign states underlying responsibility.
+The USAs case elides two distinct principles. [35 38].
+This appeal concerns situations covered by TULCRA but falling outside EU law, so the USA cannot rely on EU law as entitling it to protection from discrimination [45].
+Further EU law does not protect third country nationals from discrimination or therefore non member states [46 47].
+The USAs second submission is therefore also rejected [47].
+Ground (3): The power conferred under s.2(2) of the 1972 Act to make delegated legislation for the purpose of dealing with matters related to any obligation of the United Kingdom under EU law envisages a close link between the content of any such legislation and the relevant obligation [61].
+While each case must be considered on its merits, the domestic extension of an EU regime into areas outside or specifically excluded from that regime may well fall outside s.2(2) [66].
+In the present case, however, Parliament had by its original enactment of TULCRA established a unified domestic regime drawing no distinction between different parts of TULCRA within or outside the EUs internal market competence.
+In these unusual circumstances, Parliament could be taken to have created for the domestic purposes of s.2(2) of the 1972 Act a relationship which the Secretary of State was entitled to take into account and continue by and in the 1995 Regulations [72].
+The submission that the 1995 Regulations went beyond the Secretary of States powers in protecting employees of public administrative establishments without trade union representation would therefore also be rejected [77 73].
+Lord Carnwath (dissenting) considers that the relationship between TULCRA and the Directive created by domestic statute has no obvious relevance to the purpose of the 1972 Act [94 95].
+Some limitation is necessary to ensure that the power to legislate outside the normal parliamentary process is kept within bounds [96].
+Lord Carnwath would dismiss the appeals on the first two issues, but allow the appeal on the third issue [100 101].
+the Courts decision.
+It does not form part of the reasons for the decision.
+The full judgment of the Court is the only authoritative document.
+Judgments are public documents and are available at: http://supremecourt.uk/decided cases/index.html
diff --git a/UK-Abs/test-data/summary/full/uksc-2014-0079.txt b/UK-Abs/test-data/summary/full/uksc-2014-0079.txt
new file mode 100644
index 0000000000000000000000000000000000000000..4b9564347da747f60470b27ed30d3a1e967c8c62
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2014-0079.txt
@@ -0,0 +1,44 @@
+The benefit cap was introduced in the Welfare Reform Act 2012 and implemented by the Benefit Cap (Housing Benefit) Regulations 2012 (the Regulations).
+The main issue in this appeal is whether the Regulations are unlawful under the Human Rights Act 1998.
+It is argued that the cap has an unjustifiably discriminatory impact on women in relation to their right to the peaceful enjoyment of their possessions, contrary to article 14 of the European Convention on Human Rights taken with article 1 of the First Protocol to the ECHR (A1P1).
+The cap applies where the total entitlement of a single person or couple to specified welfare benefits exceeds an amount which represents the average weekly earnings of a working household in Great Britain, net of tax and national insurance contributions.
+The Regulations fix the cap at 350 a week for a single claimant without dependent children, and 500 for all other claimants.
+Benefits taken into account include housing benefit, child benefit and child tax credit.
+The Governments justification for the scheme is that it is necessary (i) to set a reasonable limit on the extent to which the state will support non working families from public funds; (ii) provide members of households of working age with a greater incentive to work and (iii) achieve savings in public expenditure.
+The cap does not apply to persons or families entitled to working tax credit.
+Receipt of this benefit requires a lone parent responsible for a child to work at least 16 hours a week, and a couple with a child to work a total of 24 hours a week, with one of them working at least 16 hours.
+The cap affects a higher number of women than men.
+That is because the majority of non working households receiving the highest levels of benefits are single parent households, and most single parents are women.
+The appellants are two lone mothers and their youngest children.
+The application of the cap reduced SGs weekly income from the specified benefits by 75, and NSs by 55.
+The courts below held that the indirectly discriminatory impact of the scheme upon lone parents, and therefore women, could be justified and that the scheme was therefore lawful.
+The Supreme Court dismisses the appeal by a majority of 3 2.
+Lord Reed gives the lead judgment, with which Lord Hughes agrees.
+Lord Carnwath concurs with the result but for different reasons.
+Lady Hale and Lord Kerr each give dissenting judgments.
+Lord Reed notes that it was conceded that the Regulations result, indirectly, in differential treatment of men and women in relation to welfare benefits, and that the benefits constitute possessions falling within A1P1. [60 61] The question is whether the cap is a proportionate means of meeting legitimate aims.
+Lord Reed accepts that the aims of the cap are legitimate. [63 66] In relation to proportionality, the appellants argued that the aim of setting a reasonable limit to benefits could be achieved by setting the cap at the average income of working households inclusive of in work benefits, rather than their average earnings exclusive of benefits.
+Lord Reed notes, however, that the Act requires the cap to be set by reference to earnings. [67 69] The appellants also argued that the savings in public expenditure were marginal.
+Lord Reed notes that, although the short term savings are a small proportion of the total welfare budget, they nevertheless contribute towards deficit reduction.
+The cap is also intended to change behaviour over the longer term.
+Other arguments focused on the impact of the cap on the families affected.
+Lord Reed notes that the cap for households with children is equivalent to
+a gross annual salary of 35,000, which is higher than the earnings of half of the UKs working households.
+Whether the cap should be higher is a political question.
+It is not the function of the courts to determine how much public expenditure should be devoted to welfare benefits.
+Importantly, affected households were given advance notice and assistance to enable them to adjust. [70 75] The differential impact results from including child related benefits in the cap.
+Excluding these would reduce savings by 80 90% and compromise the achievement of the caps legitimate aims.
+No credible means were suggested by which those aims might be achieved without affecting more women than men. [76 77] Other arguments relied on the United Nations Convention on the Rights of the Child (UNCRC), which has not been incorporated by Parliament into UK law, but which can be relevant to the application of the ECHR.
+Strasbourg cases do not support the argument that the cap impinges on the article 8 ECHR rights of children, and that therefore article 3(1) UNCRC obliged the Government to treat the best interests of children as a primary consideration. [78 80] Although the UNCRC can be relevant to questions concerning the rights of children under the ECHR, the present context is one of alleged discrimination against women in the enjoyment of their A1P1 property rights. [86 89] The argument that the Regulations were vitiated by the Governments misinterpretation of article 3(1) was no stronger.
+It is firmly established that UK courts cannot interpret or apply treaties to which Parliament has not given effect. [90] Lord Reed further reasons that the question of proportionality involves controversial issues of social and economic policy, with major implications for public spending.
+It is therefore necessary for the court to give due weight to the considered assessment of democratically elected institutions.
+Unless manifestly without reasonable foundation, their assessment should be respected by the court.
+Many of the issues in the appeal were considered by Parliament before it approved the Regulations.
+The Governments view, endorsed by Parliament, that achieving its aims was sufficiently important to justify making the Regulations, despite the differential impact on men and women, was not manifestly without reasonable foundation. [92 96] Lord Hughes adds that Strasbourgs case law is a long way from saying that article 3(1) is relevant to justification of any kind of discrimination, whether or not the rights, upbringing, or family life of a child are affected. [144] Lord Carnwath agrees that article 3(1) UNCRC has no role in justifying discrimination against women: the treatment of the child does not depend on the sex of their parent. [129] It is trite law that unincorporated treaties like the UNCRC have no direct effect in domestic law unless and until incorporated by statute. [115] On compliance with article 3(1), he reasons that the Governments reliance on limiting expenditure and the need for a clear upper limit on benefits ignores the distinctive statutory purpose of child related benefits: to meet the needs of children as individuals.
+The cap means children lose these benefits for reasons unrelated to their own needs.
+If excluding those benefits emasculates the scheme, this raises questions about the viability of a scheme so dependent on child related benefits.
+However, though the Secretary of State failed to show how the Regulations comply with article 3(1), it is in the political, rather than the legal, arena that the consequences should be played out. [123 127, 133] Lady Hale, in her dissenting judgment, reasons that the question is whether the legitimate aims of the cap justify the discrimination involved in its implementation. [189] The manifestly without reasonable foundation test applies to both the aims of the interference with property rights, and the proportionality of the discriminatory means employed. [209] The UNCRC has not yet been generally translated into domestic law, but Strasbourg case law shows that article 3(1) UNCRC is relevant to proportionality and discrimination as well as informing the substantive content of Convention rights, even in cases where the discrimination is not against the children but their mothers. [215 222] What has to be considered is whether the benefit cap as it applies to lone parents can be justified independently of its discriminatory effects.
+In considering that, it is necessary to ask whether proper account has been taken of the best interests of the children affected, i.e. whether the Government complied with article 3(1).
+It is clear to Lady Hale that it did not.
+The cap deprives some children of provision for their basic needs, which cannot be in their best interests.
+It does so in order to incentivise their parents to seek work, but discriminates against lone parents, who are least likely to be able to do so. [223 226] In light of article 3(1), the indirect sex discrimination inherent in the caps implementation is not a proportionate way of achieving its aims. [228] Lord Kerr, in his dissenting judgment, considers that the UNCRC can be directly enforceable in domestic law. [255 256] He further reasons that a mothers personality is defined not simply by her gender but by her role as carer for her children, so that justification of a discriminatory measure must directly address the impact on the children of lone mothers. [264 265]
diff --git a/UK-Abs/test-data/summary/full/uksc-2014-0087.txt b/UK-Abs/test-data/summary/full/uksc-2014-0087.txt
new file mode 100644
index 0000000000000000000000000000000000000000..8cae3922fdbb3358fd5c435eb0ecedbc6787fe24
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2014-0087.txt
@@ -0,0 +1,31 @@
+On 15 March 2008 the Claimant entered the Respondents premises in Small Heath, Birmingham which include a petrol station and a kiosk where customers pay for their purchases.
+Having parked his car he entered the kiosk to ask whether he could print some documents from a USB stick.
+Mr Amjid Khan was behind the kiosk desk, employed by the Respondent to see that petrol pumps and the kiosk were kept in good order and to serve customers.
+Mr Khan refused the Claimants request in a rude manner, at which the Claimant protested.
+Mr Khan responded in foul, racist and threatening language and ordered the Claimant to leave.
+The Claimant returned to his car followed by Mr Khan.
+Before the Claimant could drive off, Mr Khan opened the passenger door, told the Claimant in threatening words never to return and punched him on the left temple.
+The Claimant got out and walked round to close the passenger door when Mr Khan subjected him to a serious attack.
+The Claimant had not done anything which could be considered aggressive or abusive.
+The Claimant brought proceedings against the Respondent on the basis that it was vicariously liable for the actions of its employee Mr Khan.
+The trial judge dismissed the claim because he considered that there was an insufficiently close connection between what Mr Khan was employed to do and his tortious conduct in attacking the Claimant for the Respondent to be liable.
+The Court of Appeal upheld the judges decision.
+The Claimant appealed, challenging whether the close connection test was the appropriate standard to apply and also arguing that his claim should have succeeded in any event.
+The Supreme Court unanimously allows the Claimants appeal and holds the Respondent vicariously liable for the actions of its employee, Mr Khan, in attacking the Claimant.
+Lord Toulson gives the lead judgment.
+The close connection test has been followed at the highest level [42] and there is nothing wrong with it as such [46].
+In the present case, the court has to consider two matters.
+First, the court must ask what function or field of activities has been entrusted by the employer to the employee (i.e. what was the nature of his job).
+This is to be viewed broadly [44].
+Second, the court must decide whether there was a sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable [45].
+Applying that test here, it was Mr Khans job to attend to customers and respond to their inquiries.
+His conduct in responding to the Claimants request with abuse was inexcusable, but interacting with customers was within the field of activities assigned to him by his employer.
+What happened thereafter was an unbroken sequence of events.
+The connection between the field of activities assigned to Mr Khan and his employment did not cease at the moment when he came out from behind the counter and followed the Claimant onto the forecourt.
+There are two reasons to draw this conclusion.
+First, it is not correct to regard Mr Khan as having metaphorically taken off his uniform the moment he stepped out from behind the counter he was following up on what he said to the Claimant.
+Secondly, when Mr Khan followed the Claimant to his car and told him not to come back to the petrol station, that was not something personal between them, but an order to keep away from his employers premises.
+In giving the order he was purporting to act about his employers business [47].
+Mr Khans motive in the attack is irrelevant.
+It does not matter whether he was motivated by personal racism rather than a desire to benefit his employers business [48].
+Lord Dyson agrees with the reasons given by Lord Toulson [57] and emphasises that the close connection test is the correct test to apply [53].
diff --git a/UK-Abs/test-data/summary/full/uksc-2014-0089.txt b/UK-Abs/test-data/summary/full/uksc-2014-0089.txt
new file mode 100644
index 0000000000000000000000000000000000000000..d5c68c1f34659ea7eac039f1b360563c86b9a7ef
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2014-0089.txt
@@ -0,0 +1,47 @@
+The Respondent, Mrs Cox, worked as the catering manager at HM Prison Swansea.
+She was in charge of all aspects of the catering, including the operation of the kitchen producing meals for prisoners.
+She supervised prisoners who worked in the kitchen alongside other civilian catering staff.
+On 10 September 2007 Mrs Cox instructed some prisoners to take some kitchen supplies to the kitchen stores.
+During the course of this operation, one of the prisoners, Mr Inder, accidentally dropped a sack of rice onto Mrs Coxs back, injuring her.
+Mrs Cox brought a claim against the Ministry of Justice (MOJ) in the Swansea County Court.
+His Honour Judge Keyser QC found that Mr Inder was negligent, but dismissed the claim on the basis that the prison service, which is an executive agency of the Ministry of Justice, was not vicariously liable as the relationship between the prison service and Mr Inder was not akin to that between an employer and an employee.
+The Court of Appeal reversed the decision, finding that the prison service was vicariously liable for Mr Inders negligence.
+The question on the MOJs appeal to the Supreme Court concerns the sort of relationship which has to exist between an individual and a defendant before the defendant can be made vicariously liable in tort for the conduct of that individual.
+This case was heard alongside Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 which addresses the question of how the conduct of the individual has to be related to that relationship, in order for vicarious liability to be imposed on the defendant.
+The Supreme Court unanimously dismisses the Ministry of Justices appeal.
+Lord Reed gives the lead judgment, with which the other Justices agree.
+Lord Reed gives guidance on the sort of relationship which may give rise to vicarious liability.
+In Various Claimants v Catholic Child Welfare Society [2012] UKSC 56, (the Christian Brothers case), Lord Phillips mentioned five factors which make it fair, just and reasonable to impose vicarious liability on a defendant, where the defendant and the tortfeasor are not bound by a contract of employment [19].
+Lord Reed explains that these five factors are not equally significant.
+The first factor, that the defendant is more likely to have the means to compensate the victim and can be expected to have insured against vicarious liability, is unlikely to be of independent significance in most cases [20].
+The fifth factor, that the tortfeasor will have been under the control of the defendant, no longer has the significance it was sometimes considered to have.
+In modern life, it is not realistic to look for a right to direct how an employee should perform his duties as a necessary element in the employment relationship [21].
+The remaining three factors are inter related.
+These are (1) the tort will have been committed as a result of activity being taken by the tortfeasor on behalf of the defendant; (2) the tortfeasors activity is likely to be part of the business activity of the defendant; and (3) the defendant,
+by employing the tortfeasor to carry on the activity, will have created the risk of the tort committed by the tortfeasor [22].
+A relationship other than one of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the defendants business and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to that individual [24].
+The general approach described in Christian Brothers is not confined to a special category of cases, but provides a basis for identifying the circumstances in which vicarious liability may in principle be imposed outside employment relationships.
+It extends the scope of vicarious liability beyond the responsibility of an employer for the acts and omissions of its employees in the course of their employment, but not to the extent of imposing such liability where a tortfeasors activities are entirely attributable to the conduct of a recognisably independent business of his own, or of a third party.
+This enables the law to maintain previous levels of protection for the victims of torts, despite changes in the legal relationships between enterprises and members of their workforces which may be motivated by factors extraneous to the enterprises activities or attendant risks [29].
+The defendant need not be carrying on activities of a commercial nature.
+The benefit which it derives from the tortfeasors activities need not take the form of a profit.
+It is sufficient that there is a defendant carrying on activities in the furtherance of its own interests.
+The individual for whose conduct it may be vicariously liable must carry on activities assigned to him by the defendant as an integral part of its operation and for its benefit.
+The defendant must, by assigning those activities to the tortfeasor, have created a risk of his committing the tort [30].
+A wide range of circumstances can satisfy those requirements, and defendants cannot avoid vicarious liability on the basis of arguments about the employment status of the tortfeasor [31].
+Prisoners working in kitchens are integrated into the operation of the prison.
+The activities assigned to them form an integral part of the activities the prison carries on in the furtherance of its aims, in particular the provision of meals to prisoners.
+The fact that these aims serve the public interest is not a bar to the imposition of vicarious liability.
+The prison service places these prisoners in a position where there is a risk that they may commit a variety of negligent acts in carrying out assigned activities, which is recognised by the provision of health and safety training.
+The prisoners work under the direction of prison staff.
+Mrs Cox was injured as a result of Mr Inders negligence in carrying on activities assigned to him, and the prison service is therefore vicariously liable to her [32].
+The MOJs arguments that requiring prisoners to work serves the purpose of rehabilitation and that the prisoners have no interest in furthering the objectives of the prison service are rejected.
+Rehabilitation is not the sole objective.
+Penal policy also aims to ensure that convicted prisoners contribute to the cost of their upkeep.
+When prisoners work in the prison kitchen they are integrated into the operation of the prison, and their activities are of direct and immediate benefit to the prison service itself [34].
+The fact that a prisoner is required to undertake work for nominal wages binds him into a closer relationship with the prison service than would be the case for an employee, and strengthens the case for imposing vicarious liability [35].
+Payment of a wage is not essential for the imposition of vicarious liability [37].
+Nor is it necessary for the prison to have an unrestricted pool from which to select a workforce.
+The prisoners who work in the kitchen are selected with particular care, having regard to the risks involved [38].
+In cases where the criteria set out in Christian Brothers are satisfied, it should not generally be necessary to re assess the fairness, justice and reasonableness of the result.
+The criteria are designed to ensure that vicarious liability is imposed where it is fair, just and reasonable to do so [41].
diff --git a/UK-Abs/test-data/summary/full/uksc-2014-0094.txt b/UK-Abs/test-data/summary/full/uksc-2014-0094.txt
new file mode 100644
index 0000000000000000000000000000000000000000..5cc32e28807ef77ce0f960db593c42a0d4a502b2
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2014-0094.txt
@@ -0,0 +1,32 @@
+A patient, who was clinically asymptomatic at the time, requested that his GP refer him for a heart screen on 30 May 2008.
+The GP referred him for an electrocardiogram (ECG) test in July 2008.
+The test reported negative for ischaemic heart disease, and no further action was taken.
+The patient made further complaints of chest pain to a locum doctor on 10 December 2008, and so his GP referred him to a chest pain clinic 5 days later.
+The clinic declined to see him because of his earlier negative test, and sent a report to the practice on 20 December, which was not marked urgent or reviewed.
+The patient attended the practice again on 6 January 2009 enquiring as to why he had not received an appointment.
+The GP referred him for another ECG, but the patient died of a myocardial infarction later that day.
+The patients widow complained to the Northern Ireland Commissioner for Complaints (the Complaints Commissioner).
+Following an investigation, the Commissioner held that the practice had failed to provide a reasonable level of care and treatment and was guilty of maladministration.
+He recommended that the GP make a payment of 10,000 to the widow.
+The GP refused to make the payment, and so the Commissioner indicated that he would lay a special report about the matter before the Northern Ireland Assembly.
+The Commissioners recommendation was upheld at first instance but quashed by a majority of the Court of Appeal.
+The Commissioner appealed to the Supreme Court.
+The Supreme Court unanimously dismisses the appeal by the Complaints Commissioner, holding that the Commissioner had (i) no power to recommend the payment of a money sum against an individual who was not a public authority in an investigation under article 8 of the Commissioner for Complaints (Northern Ireland) Order 1996 and (ii) no power to make a special report drawing the attention of the legislature to such a persons failure to comply with a recommendation.
+Lord Sumption gives the judgment, with which the other Justices agree.
+The Complaints Commissioners power to investigate the complaint were derived from article 8 of the Commissioner for Complaints (Northern Ireland) Order 1996, which deals with complaints against individuals, like the GP in this case, providing professional services under contracts or other consensual arrangements with the NHS [11].
+The short answer to this appeal is that the Complaints Commissioner may not, under article 9 of the 1996 Order, carry out any investigations in respect of which the complainant has a remedy by way of proceedings in a court of law, unless it is not reasonable to expect the complainant to resort to law.
+The widow had such a remedy but the Commissioner proceeded with the investigation because she
+said that she only wished to find out what had gone wrong (and not to obtain money).
+It was not open to the Commissioner, having proceeded on that basis, to recommend a payment to her [17].
+More generally, the Complaints Commissioner does not have the power to recommend monetary redress against individuals in investigations under article 8.
+This is because his recommendations are not binding as a matter of private law, and a private individual such as a GP has no relevant duties in public law.
+Furthermore, a private individual has no means of effectively challenging the Commissioners findings on the merits of the case before a court [20, 24].
+Nor does the Complaints Commissioner have a power to make a special report in default of payment.
+Whilst the Parliamentary Commissioner and Assembly Ombudsman for Northern Ireland have such a power as against departments or public bodies that have been ordered to provide financial redress, the Complaints Commissioner does not.
+This is because the Commissioners relationship with the legislature is different to that of other statutory ombudsmen in the United Kingdom.
+The Commissioner is not an officer of the legislature, unlike the Assembly Ombudsman for Northern Ireland, but receives complaints from and reports to the complainant and individuals or bodies whose conduct is at issue.
+He has no powers of compulsion, and limited powers to use information discovered during investigations for the purposes of enforcement [20 21, 26 28].
+Article 19 of the 1996 Order is concerned with the presentation of annual reports before the Assembly, and not reports on individual cases such as this [29].
+Lord Sumption further comments on the substance of the Commissioners recommendation that the GP pay 10,000 to the widow.
+A monetary recommendation must be rational and capable of explanation.
+The figure in the Commissioners report appears to have been plucked out of the air: it does not offer a coherent explanation or calculation, or identify the precise failings in respect of which it was made [30].
diff --git a/UK-Abs/test-data/summary/full/uksc-2014-0110.txt b/UK-Abs/test-data/summary/full/uksc-2014-0110.txt
new file mode 100644
index 0000000000000000000000000000000000000000..522324f888a12d258980effd2069e7ff6b82d9c7
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2014-0110.txt
@@ -0,0 +1,30 @@
+This appeal concerns a repayment of overpaid value added tax (VAT) of approximately 125m (the VAT Repayment) received by the appellant, Shop Direct Group (SDG), a company in the Littlewoods corporate group (the Group).
+Over a number of years, companies within the Group made substantial overpayments of VAT to HMRC.
+These VAT overpayments were made on an incorrect understanding of law: the VAT was wrongly calculated when goods were sold to agents of the supplier with a discount for commission.
+The relevant supplies were made between 1978 and 1996 by companies within the Group, including SDG.
+VAT was paid to HMRC in relation to these supplies by the representative member of the Group under section 43 of Value Added Tax Act 1994 (VATA 1994).
+By 2007, following a series of reorganisations within the Group, each of the companies which had made relevant supplies had permanently discontinued its trade.
+In June 2003, the representative member of the Group made a claim for repayment of VAT from HMRC under section 80 of VATA 1994.
+This claim included the various payments which led to the VAT Repayment.
+In September 2007, HMRC made the VAT Repayment pursuant to arrangements which resulted in the VAT Repayment being received by SDG as beneficial owner at the time of receipt.
+The issue before the Supreme Court is whether the VAT Repayment is liable to corporation tax under the Income and Corporation Taxes Act 1988 (ICTA, later rewritten in the Corporation Tax Act 2009).
+Sections 103 and 106 of ICTA imposed a charge to corporation tax on post cessation receipts from a trade, profession or vocation.
+These provisions and their statutory predecessors were enacted to prevent tax avoidance by businesses choosing when to discontinue a business in order to escape tax on post cessation receipts [1, 3 9].
+In the proceedings below, the First tier Tribunal, Upper Tribunal and Court of Appeal all held that SDG was liable to corporation tax on the receipt of the VAT Repayment.
+The Supreme Court unanimously dismisses SDGs appeal.
+Lord Hodge (with whom Lord Neuberger, Lord Reed, Lord Carnwath and Lord Hughes agree) gives the judgment of the court.
+Against the background of the other relevant provisions of ICTA [18], the court concludes that section 103 does not contain an implicit restriction so that the charge to tax on post cessation receipts falls
+only on the former trader whose trade was the source of the income [19].
+There are three reasons in support of this conclusion: First, there is nothing in the wording of section 103(1) or (2) which necessitates such implication.
+The charge to tax is clear: where a trade has been permanently discontinued, corporation tax shall be charged on sums arising from the carrying on of the tradeduring any period before the discontinuance.
+Section 103(1) required only that the sums are received after the discontinuance; it specified the source of the sums falling within the charge but imposed no further restriction [20].
+Secondly, section 103 was designed to catch the fruit of the trade.
+Its aim was to make sure that sums which a person received, which arose from a discontinued trade and which were not otherwise taxed, were brought into a charge to tax.
+No sound policy reason has been suggested for confining the charge to the former trader and his personal representatives [21].
+Thirdly, the neighbouring provisions of section 103 drew a distinction between the person chargeable to tax and the person who had previously carried on the trade.
+This suggests that the former was not confined to the latter [22 23].
+The court rejects SDGs submission that the sum it received equivalent to the VAT Repayment did not have a former trade as its source, but was the result of an intra group arrangement which was either a transfer for no consideration of that sum, or a transfer for no consideration of the rights to the VAT Repayment.
+Under section 103 of ICTA, the focus was on the original source of the receipt; the arrangements within the Group as to the specific company that was to receive the VAT Repayment did not alter that original source [24].
+Section 106 of ICTA also supports a wider interpretation of the scope of the section 103 charge to corporation tax: section 106(1) quantifies the section 103 charge at the amount of the consideration or the market value of the rights to such sums when the former trader transfers its rights to those future receipts for value and the subsection imposes the charge on the former trader [25]; and section 106(2) disapplies section 103 and substitutes another Case of Schedule D only if the transferee company is carrying on the continuing business when it receives the fruits of the trade which is deemed to have been discontinued [26].
+Applying this analysis of sections 103 and 106 of ICTA to the facts of this case, the court concludes that the Groups affairs were organised such that the VAT Repayment was received by SDG as beneficial owner, receiving sums arising from the carrying on of the trade of the companies making relevant supplies during periods before the discontinuance and the sums were not otherwise chargeable to tax.
+The VAT Repayment accordingly is subject to a charge to corporation tax in the hands of SDG [28 31].
diff --git a/UK-Abs/test-data/summary/full/uksc-2014-0138.txt b/UK-Abs/test-data/summary/full/uksc-2014-0138.txt
new file mode 100644
index 0000000000000000000000000000000000000000..fe1cb2b1c0f944d3896adf69bb9b205f59eae0eb
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2014-0138.txt
@@ -0,0 +1,35 @@
+This appeal involves a challenge to the compatibility of the police power contained in s 60 Criminal Justice and Public Order Act 1994 (s 60), with the right to respect for private life protected by article 8 of the European Convention on Human Rights (ECHR).
+S 60 permits a police officer to stop and search any person or vehicle for offensive weapons or dangerous instruments, whether or not he has any grounds for suspecting that the person or vehicle is carrying them, when an authorisation from a senior police officer, which must be limited in time and place, is in force.
+On 9 September 2010, in response to a period of gang related violence in Haringey, Superintendent Barclay authorised the carrying out of searches under s 60 for 17 hours in parts of the borough, concluding that it was a proportionate response to protect members of the public from serious violence.
+That day, Police Constable Jacqui Reid was called to an incident in Tottenham involving a passenger who had not paid her fare on the no. 149 bus.
+The passenger was the appellant, Mrs Roberts.
+She had denied having identification with her and kept a tight hold on her bag.
+PC Reid used the power under s 60 to search her bag, which enabled Mrs Roberts name to be established from a bank card.
+Mrs Roberts brought judicial review proceedings against the police alleging breaches of a number of her rights under the ECHR.
+Both the High Court and Court of Appeal rejected her claims.
+The only claim pursued in her appeal to the Supreme Court was the alleged breach of article 8.
+She sought a declaration of incompatibility under s 4 Human Rights Act 1998 on the ground that the power is not in accordance with the law.
+Article 8 requires the law to be sufficiently accessible and foreseeable for an individual to regulate his conduct accordingly and to have sufficient safeguards against the risk that it will be used in an arbitrary or discriminatory manner
+The Supreme Court unanimously dismisses Mrs Roberts appeal, holding that the safeguards attending the use of the s 60 power, in particular the requirements to give reasons both for the authorisation and for the stop and search, make it possible to judge whether the power has been exercised lawfully.
+Both the power and the particular search of Mrs Roberts were in accordance with the law.
+Lady Hale and Lord Reed give the only substantive judgment with which the other justices agree.
+The power found in s 60 is one of the few instances where Parliament has decided that stop and search powers without reasonable grounds to suspect the commission of an offence are necessary for the protection of the public from terrorism or serious crime.
+It was common ground in the appeal that the power interferes with the right to respect for private life but that it pursues a legitimate aim which is capable of justification under article 8(2).
+The issue was whether it also satisfied article 8(2) by being in accordance with the law [3].
+S 60 is directed towards the risk of violence involving knives and other offensive weapons in a particular locality.
+It depends on an authorisation by an officer of the rank of inspector or above, who reasonably believes that incidents involving serious violence may take place in any locality in his police area, and that an authorisation of up to 24 hours (renewable once) is expedient to prevent their occurrence by allowing stops and searches in order to discover offensive weapons.
+The exercise of the powers is subject to numerous safeguards and restrictions in the Police and Criminal Evidence Act 1984, the Code of Practice and the Standard Operating Procedures of the Metropolitan Police.
+Failure to comply with these safeguards renders the exercise of compulsory powers which interfere with individual freedom unlawful [7, 28 37].
+The authorisation made on 9 September 2010 followed police intelligence reports indicating a risk of further violence in connection with rival gangs.
+When PC Reid attended the incident she considered that the appellant was holding her bag in a suspicious manner, and her experience was that it was not uncommon for women of a similar age to carry weapons for other people.
+She therefore conducted a search of the appellants bag exercising the s 60 power, and provided the appellant with a form explaining these reasons [10 13].
+This is the first challenge to the s 60 power to come before the court.
+Previous case law concerning similar stop and search powers establishes that some but not every suspicion less power would fail the requirement of lawfulness under the ECHR.
+It is often important to the effectiveness of the powers that they be exercised randomly and unpredictably.
+The question is whether the legal framework permits the court to examine the propriety of the exercise of the power [15 26].
+Whatever the scope of the power, it must be operated in a manner which is compatible with the ECHR rights of any individual and be free of discrimination [42].
+These constraints, together with disciplinary sanctions against police officers, guard against the risk that the s 60 power will be exercised when the officer does not in fact have good reasons for the decision [43].
+The requirements attaching to the authorisation [44], the operation [45] and the actual encounter on the street [46], in particular the requirement to give reasons, should make it possible to judge whether the action was necessary in a democratic society for the prevention of disorder or crime.
+The law itself is not incompatible with article 8 [47].
+Accordingly, a declaration under the Human Rights Act should not be made.
+Nor should there be a declaration that the guidance current at the time was inadequate or that the particular search of the appellant was not in accordance with the law [48].
diff --git a/UK-Abs/test-data/summary/full/uksc-2014-0159.txt b/UK-Abs/test-data/summary/full/uksc-2014-0159.txt
new file mode 100644
index 0000000000000000000000000000000000000000..1af299763a2a8c917c19cff47371bde45d80a5c2
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2014-0159.txt
@@ -0,0 +1,28 @@
+In June 2006 the Appellant, Hastings Borough Council (the Council), exercised its emergency powers to restrict public access to Hastings Pier on account of its being in a dangerous condition as a result of serious structural defects.
+The Respondent, Manolete Partners PLC (Manolete), pursued a claim for compensation against the Council for loss to business as a result of the Councils emergency closure of the pier.
+Manolete brought the claim as an assignee of the business Stylus Sports Ltd (Stylus), which went into liquidation in late 2011.
+Stylus had leased two units from the freeholder of the pier, Ravenclaw Investments Incorporated (Ravenclaw), and had operated a bingo hall and amusement arcade.
+Two years before the closure of the pier, Stylus had commissioned a structural engineering survey of the pier, which advised that urgent and future work, within a year, was required to the structure of the pier to prevent an unacceptable risk to the public.
+Ravenclaw, which was responsible as landlord for repair and renewal of the pier structure, did not take action to remedy the defects identified.
+Nor did the Council, and the pier remained open to the public.
+In April 2006, a section of tension cord fell from the pier.
+This led the Council to attempt, unsuccessfully, to compel Ravenclaw to take action, and to commission its own structural integrity report, which in June 2006 recommended immediate restrictions on access to the pier.
+The Council exercised its emergency powers under section 78 of the 1984 Act, and in September 2006 obtained a court order under section 77, prohibiting public access to the pier until the necessary remedial works had been carried out.
+Section 106 of the Building Act 1984 (the 1984 Act), requires compensation to be paid for loss to a business resulting from emergency action, but only where the owner or occupier of the premises has not been in default.
+The Council alleged that Stylus had breached the Occupiers Liability Act 1957, which imposes a duty of care towards visitors, and the Health and Safety at Work Act 1974, which imposes a duty on an employer to ensure the safety of his employees and the safety of the workplace.
+The Council sought to rely on these alleged breaches to establish a default, thereby precluding Manolete from making a compensation claim under the 1984 Act.
+This defence was rejected by the Technology and Construction Court and the Court of Appeal, on the basis that the reference to default was limited default in respect of obligations imposed by the 1984 Act itself.
+The Supreme Court unanimously dismisses Hastings Borough Councils appeal.
+Lord Carnwath gives the judgment, with which the other Justices agree.
+Section 106 of the 1984 Act gives a right to compensation to a person who has sustained damage by reason of the exercise of the authoritys powers under the Act in relation to a matter as to which he has not himself been in default.
+This requires firstly, identification of the matter in relation to which authority has exercised its powers, and secondly, consideration of whether that is a matter as to which the claimant has been in default [25].
+The relevant power is the power to take emergency action under section 78 of the 1984 Act, and the claim for compensation is limited to the period from the date of the Councils emergency closure of the pier until the court order in September 2006 [26].
+The matter which led the Council to take such emergency action was identified in the letter sent by the Council to the tenants at the time, which was the state of the pier combined with fear of possible collapse from crowd loading during the events planned for that month, in particular the risk of overloading in an emergency evacuation.
+The trigger was not the general state of the pier or the specific repairs identified in the report commissioned by Stylus.
+Whatever Stylus position towards its clients and employees, it was not in default as to the matter which led to the Councils exercise of its section 78 powers, and on this basis, Manolete is entitled to succeed in its claim for compensation [27 8].
+Although not strictly necessary to determine the present appeal, Lord Carnwath addresses the issue of whether default in section 106 is limited to default under the 1984 Act itself, as this may impact on future cases.
+Lord Carnwath finds that the legislative history and the authorities under the predecessor statutes support the conclusion that the default is not limited to the particular provisions of each statute, but extends to other forms of legal default.
+Concerns as to the wide scope of the factual inquiry do not arise if the inquiry is limited to the two stage assessment set out above [30 5].
+The Court of Appeals conclusion that the Council had no defence in principle to the claim for compensation was correct, not because, as they so held, there was no default under the 1984 Act, but because it was not Stylus default which led to the Councils emergency action [36].
+Lord Carnwath emphasises that this does not limit the issues which can be taken into account by the arbitrator in assessing the level of compensation payable.
+The arbitrator may take account of Stylus statutory and common law responsibilities to its clients and employees, the structural condition of the pier and the implications it would have had for the continuation of business quite apart from the effects of the emergency action [37].
diff --git a/UK-Abs/test-data/summary/full/uksc-2014-0231.txt b/UK-Abs/test-data/summary/full/uksc-2014-0231.txt
new file mode 100644
index 0000000000000000000000000000000000000000..ed76497c0ca97464258b5b487be69602635e2368
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2014-0231.txt
@@ -0,0 +1,41 @@
+The Public Processions (Northern Ireland) Act 1998 (the 1998 Act) placed responsibility for the management of parades in Northern Ireland in the hands of an independent statutory body called the Parades Commission.
+The Act placed a duty on anyone proposing to organise a public procession to give advance notice to the police and made it a criminal offence to organise, or take part in, a public procession of which notification had not been given.
+On 3 December 2012 Belfast City Council decided to stop flying the Union flag over Belfast City Hall every day.
+The flag was to be flown on certain designated days only.
+The decision sparked a wave of protests by loyalists which continued for some months and became known as the flags protests.
+The protesters marched from a meeting point in East Belfast to Belfast City Hall in the centre of the city and back again.
+The route took the parade through the Short Strand, which is perceived to be a nationalist area, and where violence, disorder and sectarian abuse were directed at residents.
+No notification was made under the 1998 Act that a parade was due to take place.
+Initially, in order to prevent potential disorder, the police had taken the decision not to permit the protesters to enter Belfast City Centre.
+But between 6 and 8 December 2012 this decision was changed, as it was considered there was a need to try to facilitate some form of protest in order to ease community tension.
+Therefore, when the parades began on 8 December 2012 the protesters were permitted to enter the City Centre and pass through the Short Strand area.
+The weekly parades continued until March 2013, during which time the police took no action to stop them.
+The police made a number of public announcements to the effect that it had no power to stop a parade that had not been notified under the 1998 Act.
+They also tried, unsuccessfully, to refer the matter to the Parades Commission.
+The appellant, a resident of Short Strand, issued judicial review proceedings challenging the failure of the police to take action to prevent the parades from taking place.
+The High Court found that the police had failed to appreciate the extent of its powers to stop an un notified parade, which had the effect of undermining the 1998 Act.
+The Court of Appeal allowed the Chief Constables appeal.
+DB appealed to the Supreme Court.
+The Supreme Court unanimously allows DBs appeal and declares that the Police Service of Northern Ireland misconstrued their legal powers to stop parades passing through or adjacent to the Short Strand area.
+Lord Kerr gives the judgment, with which the other Justices agree.
+The flag protests presented the Police Service of Northern Ireland with enormous, almost impossible difficulties [1].
+There can be no suggestion that they failed to treat them with sufficient seriousness.
+This case is not about the sincerity and authenticity of those efforts, it is about whether, corporately, the police were sufficiently aware of the full range and scope of the powers available to them [3].
+The police have a duty, under the general law, to prevent the commission of offences.
+Participating in an un notified parade is a criminal offence under the 1998 Act and as such the police therefore had the power to prevent the parades.
+The police failed properly to appreciate this, instead believing that they only had a power to prevent the commission of general public order offences [10].
+The police were not required to form a judgment as to whether a parade should take place, but they were required to decide whether the parade was taking place legally.
+Failure to notify a proposed parade strikes at the heart of the effective functioning of the Parades Commission and therefore at the successful implementation of the 1998 Act.
+This Act represented a paradigm shift away from the old system where police were drawn into the controversial role of deciding which parades should be permitted to take place and under what conditions they should be allowed to proceed [63].
+The police failed to recognise that the integrity of the system depended on the enforcement of the requirement to notify an intention to hold a parade [64].
+It is the police, not the Parades Commission, who have the responsibility for preventing un notified parades from taking place [45].
+The police mistakenly believed that they were obliged by article 11 of the European Convention on Human Rights (freedom of assembly and association) to facilitate peaceful protests, even though they thought the protests were technically illegal.
+To the contrary, they had an inescapable duty to prevent, where possible, what were plainly illegal parades from taking place and to protect those whose rights under article 8 of the European Convention (respect for private life) were in peril of being infringed, subject to operational constraints.
+In general, a decision to disperse a parade or protest which has not been lawfully notified will not infringe article 11.
+There was no warrant for allowing article 11 considerations to determine how the parades should be policed [60 62].
+The High Court was therefore right to conclude that the police laboured under a misapprehension as to the extent of their powers [70].
+The polices policy did not, however, have the intention or the effect of undermining the 1998 Act [66].
+The police had an operational discretion in deciding how to respond to the parades.
+Discussion of what action might have been taken had the police properly understood the limits of their powers is unlikely to was unhelpful [74].
+Difficulties in making policing decisions should not be underestimated, especially since these frequently require to be made in fraught circumstances [76].
+The absence of a more proactive approach was not caused by police inertia, but by a concatenation of unfortunate circumstances, including misunderstandings about the powers available to them [77].
diff --git a/UK-Abs/test-data/summary/full/uksc-2015-0057.txt b/UK-Abs/test-data/summary/full/uksc-2015-0057.txt
new file mode 100644
index 0000000000000000000000000000000000000000..f7bd5859572c2d8f7880fb949aa910f88c885848
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2015-0057.txt
@@ -0,0 +1,36 @@
+This appeal and cross appeal arise out of claims made by certain investment trust companies (the ITCs) for refunds of VAT which they had paid on the supply of investment management services from investment managers (the Managers).
+The VAT transpired not to be due, because the supplies in question were exempt from VAT under EU law.
+The Managers who received VAT from the ITCs paid it to the Commissioners, believing they were entitled to deduct from the VAT chargeable on their supplies to the ITCs (output tax) the tax which they had themselves paid on supplies received for the purposes of their businesses (input tax).
+Out of a notional 100 received from the ITCs, the Managers might have therefore accounted to the Commissioners for only 75 after deducting 25 in respect of input tax.
+When it transpired that the supplies were VAT exempt, the Managers made claims to the Commissioners for refunds under s.80 of the VAT Act 1994, and passed on the refunded VAT and interest to the ITCs.
+However, under the statute, the Managers were only entitled to a refund of the VAT they had actually paid the Commissioners (i.e. the notional 75).
+In addition, they could not claim refunds in relation to accounting periods excluded by the three year statutory limitation period under s.80 (the dead periods).
+The ITCs did not receive the full amount of VAT they had been mistakenly charged and brought proceedings against the Commissioners seeking remedies in unjust enrichment and EU law in respect of the notional 25 and the dead periods.
+The judge found that the Commissioners had been enriched by the full amount of VAT the ITCs paid to the Managers (i.e the notional 100), but that the ITCs cause of action at common law was excluded by the statutory scheme, which protected the Commissioners from liability other than as provided in s.80.
+EU law required that exclusion to be disapplied so as to permit a claim, but still subject to the limitation period in s.80.
+The claim in relation to the dead periods was therefore dismissed, but payment of the notional 25 outside those periods was ordered.
+Both sides appealed, and the Court of Appeal allowed both appeals.
+The statutory scheme did not exclude a common law claim, but it was wrong to treat the Commissioners as having been enriched to the extent of the notional 100, where they had only received 75.
+There was no claim in EU law for the remaining amounts retained by the Managers.
+Judgment was given for the notional 75 claim in relation to the dead periods, and the claim for the notional 25 (for all periods) was dismissed.
+The Supreme Court unanimously allows the Commissioners appeal and dismisses the ITCs cross appeal.
+Lord Reed gives the judgment, with which the rest of the Court agrees.
+The principal issues to be decided were (i) whether the ITCs in principle could make out a claim in unjust enrichment against the Commissioners, (ii) whether such a claim was excluded by the statutory scheme under s.80 and (iii) whether the lack of any such claim was incompatible with EU law.
+The extent of the Commissioners enrichment was limited to the notional 75 which they received from the Managers.
+It did not include the notional 25 which the Managers retained as an input tax credit, because that was not an amount which the Commissioners owed to the Managers: it was only deductible from output tax that was properly due [25 31].
+As to whether the Commissioners enrichment was at the expense of the ITCs, there has been uncertainty surrounding the approach to be adopted.
+It would be unwise to attempt a definitive statement of the circumstances in which the at the expense of requirement would be satisfied, but as a general rule it will be satisfied where there is a direct transfer of value from the claimant to the defendant, and in situations equivalent to direct transfers, for example where an agent is interposed, or where a series of coordinated transactions can be treated as a single transaction.
+A further situation where the requirement is satisfied is where the claimant discharges a debt owed by the defendant to a third party.
+The possibility of genuine exceptions to a direct provision rule should not be ruled out, but beyond direct transfers of value, or equivalent situations, it is generally difficult to maintain that the defendant has been enriched at the claimants expense.
+For there to be a transfer of value, the claimant must incur a loss through the provision of the benefit: incidental benefits alone cannot constitute a transfer of value [32 66].
+In the present case there is no direct transfer of value, or equivalent situation.
+The ITCs payment to the Managers became part of the Managers general assets, and was not impressed with a special purpose trust, while the Managers VAT liability to the Commissioners arose independently of whether the ITCs actually paid VAT.
+The two transactions are separate and cannot be collapsed into a single transfer of value from the ITCs to the Commissioners [67 74].
+Even if the ITCs had in principle been able to make out a claim in unjust enrichment, such a claim would have been excluded by s.80.
+The statute creates an exhaustive code of remedies not just for suppliers who have accounted to the Commissioners, but for the ultimate consumers as well.
+This is because it set out arrangements for the supplier to reimburse the consumer, subject to a limitation period, removing the need for the consumer to have a direct remedy against the Commissioners.
+Parliament cannot have intended this scheme for reimbursement of consumers to exist concurrently with non statutory liabilities that would be inconsistent with the rationale of the statutory scheme [75 88].
+The application of the statutory scheme in the present case is compatible with EU law.
+The European Court of Justice has accepted that in principle, a system under which only the supplier is entitled to seek reimbursement of VAT from the tax authorities, and the consumer can seek restitution from the supplier, meets the requirements of EU law.
+In cases where the reimbursement of the consumer by the supplier would be impossible or excessively difficult, the principle of effectiveness would require that the consumer be able to bring a claim directly against the tax authorities.
+That was not the case here, and it would not be appropriate to consider what the position would be in a hypothetical case where a supplier was insolvent [89 94].
diff --git a/UK-Abs/test-data/summary/full/uksc-2015-0063.txt b/UK-Abs/test-data/summary/full/uksc-2015-0063.txt
new file mode 100644
index 0000000000000000000000000000000000000000..ec1cf02bb72e7ce6da882740534f7bfb04ae641c
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2015-0063.txt
@@ -0,0 +1,45 @@
+Ms Janah is a Moroccan national who was recruited in Libya to work as a domestic worker for the Libyan government at its London embassy.
+Ms Benkharbouche is a Moroccan national who was recruited in Iraq to work for Sudan at its London embassy.
+Both were dismissed from their employment and then issued claims in the Employment Tribunal against Libya and Sudan respectively.
+Some of their claims were based on EU law.
+Others were based on breach of contract or on purely domestic statutes of the United Kingdom.
+In both actions the Employment Tribunal dismissed the claims on the basis that Libya and Sudan were entitled to state immunity under the State Immunity Act 1978 (1978 Act).
+The Employment Appeal Tribunal (EAT) heard Ms Janahs and Ms Benkharbouches appeals together.
+The EAT allowed the appeals and held that those sections were incompatible with article 47 of the EU Charter of Fundamental Rights and Freedoms (EU Charter) which reflects the right in EU law to a remedy before a tribunal.
+The EAT consequently disapplied sections 4(2)(b) and 16(1)(a) of the 1978 Act insofar as those sections barred the claims which were based on EU law.
+The Court of Appeal affirmed the judgment of the EAT and declared those sections of the 1978 Act to be incompatible with the right to access a court, under article 6 of the European Convention on Human Rights (ECHR).
+The Secretary of State appeals in both cases.
+The Supreme Court unanimously dismisses the appeal.
+Lord Sumption gives the judgment, with which Lord Neuberger, Lady Hale, Lord Clarke and Lord Wilson agree.
+The 1978 Act renders a foreign state immune from the jurisdiction of a UK court in a claim based on the foreign states employment of the claimant, where the claimant either: (i) at the time of the contract, was neither a UK national nor UK resident; or (ii) works for the foreign states diplomatic mission.
+Section 4(2)(b) confers immunity in the first category; section 16(1)(a) confers immunity in the second [1, 11].
+Article 6 of the ECHR confers a right of access to a court to determine disputes, although that right is not absolute [14].
+The Claimants argued that the relevant provisions of the 1978 Act were incompatible with EU law and with Article 6 of the ECHR, because they prevented access to a court in circumstances where this result was not required by international law.
+The Secretary of State argued (i) that a courts recognition of state immunity can never amount to an infringement of article 6, because it only reflects the courts lack of jurisdiction over a foreign state, but (ii) that in any event the relevant
+provisions of the Act were consistent with international law or at least with a tenable view of international law. [29 30, 34 35].
+The test was whether the relevant provisions of the Act were consistent with international law, not whether there was a tenable view to that effect.
+These provisions were not consistent with international law.
+A court may identify a rule of customary international law only if enough states follow a consistent practice, on the footing that it is a legal obligation [31].
+The Secretary of State argued that although states now recognise a more restrictive doctrine of state immunity, the immunity is still absolute unless there is sufficient international consensus to show that Libya and Sudan fall into any established exception to that absolute immunity [33].
+This Court rejects those arguments, which mischaracterise the historical development of the restrictive doctrine of immunity.
+Specifically: (i) while there is a long standing consensus of states in favour of immunity there has probably never been sufficient international consensus for an absolute rule of state immunity in customary international law; (ii) the only consensus that there has ever been about the scope of state immunity is the relatively recent consensus in favour of the restrictive doctrine; (iii) that restrictive doctrine emerged after a re examination of the true basis of the doctrine, rather than by creating exceptions to any general rule of absolute immunity [40 52].
+In customary international law, a foreign state is immune where a claim is based on sovereign acts.
+Whether a foreign states employment of a claimant constitutes a sovereign act depends on the nature of that employer employee relationship.
+That will, in turn, depend primarily on the functions which the employee is employed to perform.
+The employment of purely domestic staff in a diplomatic mission is a private act, rather than an inherently sovereign act.
+That approach is supported by the reasoning in case law from the United States, France, and the European Court of Human Rights [53 56].
+Under section 4(2)(b) of the Act, whether a foreign state is immune depends entirely on the nationality and residence of the claimant at the date of the employment contract.
+That section draws no distinction between acts of a private nature and acts of a sovereign nature.
+That approach to state immunity is followed by some states but lacks any basis in customary international law [64 66].
+A persons nationality and residence at the date of the employment contract are not proper grounds for denying a person access to the courts in respect of their employment in this country [67].
+Section 16(1)(a) extends state immunity to the employment of all members of a diplomatic mission.
+The Court rejects the Secretary of States argument that a state is entitled in international law to absolute immunity in respect of the employment of embassy staff.
+Although article 7 of the Vienna Convention on Diplomatic Relations 1961 indicates that a court may not order a foreign state to employ a specific person in its embassy, this issue does not arise where the claimant only seeks damages (rather than reinstatement in his or her previous position) [68 69].
+Nor is there any corresponding rule of customary international law to extend absolute state immunity to the employment of embassy staff [70 72].
+As a matter of customary international law, therefore, neither Sudan nor Libya are entitled to immunity in respect of these claims.
+Sections 4(2)(b) and 16(1)(a) of the 1978 Act, which confer immunity in English law, are consequently incompatible with article 6 of the ECHR [74 75].
+In light of that, the Secretary of State accepted that those sections were also incompatible with article 47 of the EU Charter [77].
+The Court also accepts Ms Janahs argument that section 16(1)(a) of the 1978 Act discriminated unjustifiably on the grounds of nationality, but in the circumstances that adds nothing [76].
+EU law prevails over English law in the event of a conflict, so those sections of the 1978 Act cannot bar the claims which are based on EU law [77].
+Those EU law claims are remitted to the Employment Tribunal, to be determined at trial.
+The other claims remain barred by the 1978 Act, notwithstanding that the Court of Appeal properly made a declaration of incompatibility with the ECHR in respect of them [78].
diff --git a/UK-Abs/test-data/summary/full/uksc-2015-0082.txt b/UK-Abs/test-data/summary/full/uksc-2015-0082.txt
new file mode 100644
index 0000000000000000000000000000000000000000..82bce6bdfe210b1c291df4376c600956faf4063c
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2015-0082.txt
@@ -0,0 +1,37 @@
+This case concerns the scope of the duty of confidentiality owed by Her Majestys Revenue and Customs (HMRC) in respect of the affairs of taxpayers.
+This duty is set out in statutory form in Section 18(1) of the Commissioners for Revenue and Customs Act 2005 (the 2005 Act), which provides that HMRC officials may not disclose taxpayer information.
+Section 18(2) of the 2005 Act sets out a number of situations in which this duty may be overridden.
+These include where a disclosure is made for the purposes of a function of HMRC (s.18(2)(a)(i)) and function is given a broad and general definition in various sections.
+There are also a number of more specific situations set out in ss.18(2)(b) to (j), such as for the purposes of civil or criminal proceedings.
+Mr Patrick McKenna is the Founder and Chief Executive Officer of Ingenious Media Holdings plc (Ingenious Media), an investment and advisory group specialising in the media and entertainment industries.
+It promoted film and investment schemes involving film production partnerships which utilised certain tax relief previously available [8].
+On 14 June 2012 the Permanent Secretary for tax in HMRC, Mr David Hartnett, gave an off the record interview to two financial journalists from The Times about tax avoidance [9].
+On 21 June 2012 The Times published two articles on film schemes and tax avoidance which identified Mr McKenna as one of two main providers of film investment schemes in the UK and informed readers that such schemes had enabled investors to avoid at least 5 million in tax a figure that had been provided by Mr Hartnett.
+The articles also contained a direct quote from the interview with Mr Hartnett about Mr McKenna, which was attributed to a senior Revenue official [10 11].
+Mr McKenna and Ingenious Media brought a claim for judicial review of the decision of HMRC, acting by way of Mr Hartnett, to disclose information which concerned them to The Times journalists.
+The court at first instance held that it should not approach the disclosures as if it were the primary decision maker.
+It found that the disclosures made by Mr Hartnett were not irrational, were made for a legitimate purpose and were proportional [14].
+This approach was upheld by the Court of Appeal [15].
+Ingenious Media Holdings appealed to the Supreme Court.
+The Supreme Court unanimously allows Ingenious Medias appeal.
+Lord Toulson, with whom the other Justices agree, gives the lead judgment.
+Judicial review is not the only course of action available to challenge the conduct of a public body.
+Public bodies are not immune from the ordinary application of the common law, including the law of
+confidentiality [28].
+This case should be approached from the perspective of the common law of confidentiality [17, 28].
+It is a well established principle of the law of confidentiality that where information of a personal or confidential nature is obtained or received in the exercise of a legal power or in furtherance of a public duty, the recipient will in general owe a duty to the person from whom the information was received or it relates.
+The tax affairs of individual taxpayers are matters between HMRC and the taxpayer, and confidentiality is a vital element in the working of the system [17].
+However, this principle may be overridden by explicit statutory provisions [18].
+By taking together ss.5, 9 and 51(2) of the 2005 Act, HMRCs interpretation of the phrase disclosure made for the purpose of a function of HMRC in s.18(2)(a)(i), would permit disclosure of anything which in the view of HMRC is necessary, expedient, incidental, conducive to or in connection with the exercise of the functions of the collection and management of revenue.
+However, if this interpretation was correct the provisions permitting disclosure in the specific circumstances in s.18(2)(b) to (j) would be superfluous.
+Furthermore, such a construction would run counter to the principle of legality, by which fundamental rights cannot be overridden by general or ambiguous words [19].
+In enacting the 2005 Act, Parliament cannot have envisaged that it was authorising HMRC officials such a wide ranging discretion to disclose confidential information about the affairs of individual taxpayers, limited only by the rationality test applied in judicial review claims, as this would significantly undermine the primary duty of confidentiality in s.18(1) [22].
+The correct interpretation of Section 18(2)(a)(i) is that it permits disclosure to the extent reasonably necessary for HMRC to fulfil its primary function [23].
+It is for the court to decide whether there has been a breach of confidentiality by applying the law to its own judgment of the facts.
+The opinion of the individual who has disclosed the information is not irrelevant, but the court will decide what weight it should be given [26].
+This principle applies whether the duty of confidentiality is contractual or where, as in the current case, the person or body owing a duty of confidentiality holds a public office, is a public body, or is performing a public function, subject to any contrary statutory provision [27, 29].
+An impermissible disclosure of confidential information is no less impermissible because the information is passed on in confidence, or off the record [31].
+The information supplied by Mr Hartnett to the journalists about Mr McKenna and Ingenious Media was confidential in nature, in respect of which HMRC owed a duty of confidentiality under s.18(1) of the 2005 Act [32].
+The fact that Mr Hartnett did not anticipate his comments being reported is not a justification for making them [35].
+The desire to foster good relations with the media and to publicise HMRCs view about tax avoidance schemes and speculation that the journalists may have subsequently informed Mr Hartnett about other tax avoidance schemes do not provide sufficient justification for the disclosures either [34].
+The disclosures by Mr Hartnett were not therefore justified under s.18(2)(a) of the 2005 Act [36].
diff --git a/UK-Abs/test-data/summary/full/uksc-2015-0177.txt b/UK-Abs/test-data/summary/full/uksc-2015-0177.txt
new file mode 100644
index 0000000000000000000000000000000000000000..900c6462b1075e596e180b17734e7521282a23cf
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2015-0177.txt
@@ -0,0 +1,33 @@
+Littlewoods overpaid VAT to HMRC between 1973 and 2004.
+Between 2005 and 2008, HMRC repaid the principal sum of 205 million, together with simple interest of 268 million.
+In these proceedings, Littlewoods seek additional interest, calculated on a compound basis as 1.25 billion, on the ground that such interest is due under the common law of restitution, either as restitution for a mistake of law, or as restitution of tax unlawfully demanded (a Woolwich claim).
+The two issues for the Supreme Court in the present case are: (1) Whether Littlewoods common law claims are excluded by sections 78 and 80 of the Value Added Tax Act 1994 (the 1994 Act) as a matter of English law, and without reference to EU law.
+The lower courts found that Littlewoods common law claims were barred by the 1994 Act.
+Littlewoods appeals on this issue; (2) If Littlewoods claims for compound interest are excluded by sections 78 and 80 of the 1994 Act, whether that exclusion is contrary to EU law, in light of the Court of Justice of the European Unions (CJEU) judgment in Case C 591/10 Littlewoods.
+The lower courts found that denying compound interest was contrary to EU law.
+HMRC appeals on this issue.
+Other issues were raised, but these would only need to be decided if Littlewoods were successful on either of the first two issues.
+The Supreme Court unanimously dismisses Littlewoods cross appeal on the first issue, and allows HMRCs appeal on the second issue.
+Lord Reed and Lord Hodge give a joint judgment, with which the rest of the Court agrees.
+The first issue: whether the common law claims are excluded by the 1994 Act Section 78 of the 1994 Act impliedly excludes the claims made by Littlewoods, as a matter of English law, for the following reasons.
+First, the scheme created by section 78 is inconsistent with the availability of concurrent common law claims to interest.
+The right to interest in section 78 is subject to certain limitations, including (i) section 78(1), which limits HMRCs liability to pay interest to cases of error by HMRC [31]; (ii) section 78(3),
+and the provisions to which it refers, which determine that the interest rate is calculated on a simple rather than a compounded basis [32]; (iii) section 78(11), which sets the applicable limitation period, which is shorter than the limitation period that would apply to a common law claim [33].
+These limitations would be defeated and rendered effectively pointless if it were possible for the taxpayer to bring a common law claim[34].
+Second, section 78 states that the liability to pay interest under that section applies if and to the extent that [the Commissioners] would not be liable to do so apart from this section.
+On a literal meaning, this would permit a common law claim for interest to be made outside section 78.
+At the time section 78 was enacted, however, the type of common law claim made by Littlewoods in the present case had not yet been recognised in law, and was thus not contemplated by Parliament when it enacted the legislation.
+It cannot have been Parliaments intention that a common law claim would be permitted in any case where an amount was paid under section 80, as this would render section 78 a dead letter, and would fatally compromise the statutory scheme.
+As such, the reservation in section 78(1) (italicised above) cannot be read literally.
+It must be construed as referring only to statutory liabilities to pay interest, not to a common law liability for interest [34 39] The second issue: whether EU law requires the payment of compound interest The CJEU judgment does not require reimbursement of the losses constituted by the unavailability of money.
+The CJEU has given member state courts a discretion to provide reasonable redress in the form of interest in addition to the principal sum.
+The lower courts in this case read too much into the phrase adequate indemnity in the CJEU judgment [51, 70].
+Three reasons support this view.
+First, when read as a whole, the CJEUs judgment, which directly addresses the issue in this case, is clear.
+The judgment can be analysed in the following three parts: (i) there is a general entitlement to interest on tax levied in breach of EU law (paras 24 26 of the CJEU judgment); (ii) it is for member states to determine whether the interest rate is simple or compound, subject to the principle of effectiveness which requires that the calculation of that interest should amount to reasonable redress or an adequate indemnity for the taxpayers loss (paras 27 29 of the CJEU judgment); and (iii) the suggestion that interest which is over 125% of the principal sum might be such reasonable redress (para 30 of the CJEU judgment) [52 59, 71].
+Second, there is a widespread practice among EU member states of awarding taxpayers simple interest on the recovery of taxes which were unduly paid.
+If the CJEU were seeking to outlaw that practice, one would have expected clear words to that effect [60, 72].
+Third, the prior and subsequent case law of the CJEU is consistent with the principle that there is an EU right to interest, but that the rate and method of calculation of interest are matters for the member states.
+Case C 271/91 Marshall, where the CJEU held that interest had to be awarded to take account of the diminution in value of money over time, was a case about the measure of compensation for sex discrimination, and is distinguishable from the present case [61 69].
+In summary, the payment of interest in this case cannot realistically be regarded as having deprived Littlewoods of an adequate indemnity [73].
+The other issues raised in the appeal do not arise for decision, as they would arise only if Littlewoods were successful on either of the first two issues [16].
diff --git a/UK-Abs/test-data/summary/full/uksc-2015-0214.txt b/UK-Abs/test-data/summary/full/uksc-2015-0214.txt
new file mode 100644
index 0000000000000000000000000000000000000000..fa00d2cfad7c2247cc521f29ca120c673f58d139
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2015-0214.txt
@@ -0,0 +1,49 @@
+The girl at the centre of this appeal, B, is a British national now aged 7.
+The Respondent (a British national of Pakistani ethnicity) is Bs biological mother and was previously in a same sex relationship with the Appellant (a British national of Indian ethnicity), who has strong claims also to be described as a mother of B.
+The couple lived in England and set up home together, but they never became civil partners.
+Following IUI treatment, given to them both as a couple, the Respondent gave birth to B in April 2008.
+The Respondent undertook most of Bs care but the Appellant also helped care for her and, as co parents, they took B out at weekends, in particular to visit members of their families.
+In December 2011, the relationship broke down acrimoniously and the Appellant left the family home.
+Over the next two years, the Respondent progressively reduced the level of the Appellants contact with B. The Appellant objected and suggested mediation.
+Meanwhile, the Respondent decided privately to move with B to live in Pakistan where she says members of her wider family remain.
+She did not share this decision with the Appellant.
+On 3 February 2014 the Respondent moved to Pakistan with B where they have remained ever since.
+Although the Appellant did not consent to it, Bs removal to Pakistan was lawful.
+On 13 February 2014, unaware where the Respondent had taken B, the Appellant applied under the Children Act 1989 (1989 Act) for orders for shared residence of B, or for contact with her.
+This application depended upon showing that B was habitually resident in England at the time it was issued (i.e. 13 February 2014).
+Subsequently, having learned that the Respondent had taken B to Pakistan, the Appellant also applied for orders under the courts inherent jurisdiction over B (as a British national) that she be made a ward of court and returned to England.
+In July 2014 Hogg J held that (a) the English court had no jurisdiction to determine the Appellants 1989 Act application because B had lost her habitual residence immediately upon her removal to Pakistan on 3 February 2014; and (b) the inherent jurisdiction over a British national who was neither habitually resident nor present in England should be exercised only if the circumstances were dire and exceptional, and this was not such a case.
+On 6 August 2015, the Court of Appeal dismissed the Appellants appeal.
+The Appellant appeals to the Supreme Court in respect of both applications.
+The Supreme Court allows the appeal on the Appellants application under the 1989 Act by a majority of 3:2 (Lord Clarke and Lord Sumption dissenting) on the basis that B remained habitually resident in England on 13 February 2014.
+Lord Wilson gives the lead judgment.
+Habitual residence
+Lord Wilson (with whom Lady Hale and Lord Toulson agree) observes that two consequences flow from the modern international primacy of the concept of a childs habitual residence.
+First, it is not in the interests of children routinely to be left without a habitual residence [30].
+Second, the English courts interpretation of the concept of habitual residence should be consonant with its international interpretation [31].
+The present case, however, involved a third aspect of the concept of habitual residence: the circumstances in which a child loses his or her habitual residence [32].
+The traditional English law approach to this issue is heavily dependent upon parental intention.
+In particular, in In re J (A Minor), Lord Brandon observed that a person may cease to be habitually resident in a country in a single day if he or she leaves it with a settled intention not to return and settle elsewhere [33 34].
+Lord Wilson notes that the Supreme Court in A v A held that the English concept of habitual residence should be governed by the criterion set out in the CJEU jurisprudence: namely, that there be some degree of integration by the child in a social and family environment.
+This focuses on the childs situation, with parental intention being merely one relevant factor [35 38].
+Lord Wilson identifies two points in the CJEU jurisprudence relevant to the issue of when habitual residence is lost.
+First, the effect of Recital 12 to the Brussels II Regulation is that, where the interpretation of the concept of habitual residence can reasonably follow two paths, the courts should follow the path perceived better to serve the interests of children.
+Second, the CJEU has indorsed the view that, although it is conceivable that a child may have no habitual residence, this will only be in exceptional cases [40 44].
+Lord Wilson concludes that the modern concept of a childs habitual residence operates in such a way as to make it highly unlikely, albeit conceivable, that a child will be left without a habitual residence; the concept operates in the expectation that, when a child gains a new habitual residence, he or she loses their old one.
+Lord Brandons observation in In Re J should no longer be regarded as correct, and Hogg J fell into error in being guided by it [45 47].
+Lord Wilson therefore states that the correct question is whether B had by 13 February 2014 achieved the requisite degree of disengagement from her English environment [48].
+He concludes that, taken cumulatively, the factors pointing to the conclusion that B had not by 13 February 2014 achieved the requisite degree of disengagement compel the conclusion that she retained habitual residence in England [49 50].
+Accordingly, the Appellants application under the 1989 Act can and should proceed to substantive determination by the High Court (Family Division) [51].
+Lord Sumption (dissenting) considers that Hogg J made no error of law and, having heard and reviewed the evidence, was entitled to find that B lost her habitual residence in England on 3 February 2014 [64 80].
+Lord Clarke agrees [89 95].
+Inherent jurisdiction Given the majoritys conclusion on habitual residence, it is unnecessary to decide whether the inherent jurisdiction can be exercised.
+Lady Hale and Lord Toulson observe that none of the reasons for caution when deciding whether to exercise the inherent jurisdiction has much force in this case.
+They consider that the jurisdiction is not confined to exceptional circumstances; it could have been exercised if the court held that B required protection [59 62].
+Lord Wilson agrees, but leaves open the question of whether it would have been appropriate to exercise the inherent jurisdiction in this case [53].
+Lord Sumption (dissenting) considers that, unless the inherent jurisdiction is reserved for exceptional cases, it may be exercised in a manner which cuts across the statutory scheme.
+He considers that the jurisdiction could not have been exercised in this case [81 87].
+Lord Clarke, noting that the jurisdiction must be exercised with great caution, agrees that it should not be used on the facts of this case [96 97].
+This summary is provided to assist in understanding the Courts decision.
+It does not form part of the reasons for the decision.
+The full judgment of the Court is the only authoritative document.
+Judgments are public documents and are available at: http://supremecourt.uk/decided cases/index.html
diff --git a/UK-Abs/test-data/summary/full/uksc-2015-0216.txt b/UK-Abs/test-data/summary/full/uksc-2015-0216.txt
new file mode 100644
index 0000000000000000000000000000000000000000..dd59d6385e5f51d0ba99133f6851cc12a8a06a88
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2015-0216.txt
@@ -0,0 +1,63 @@
+The Children and Young People (Scotland) Act 2014 (the 2014 Act) makes provision for a named person service (the NPS) in relation to children and young people (C&YP) in Scotland.
+The NPS establishes the new professional role of the named person, and envisages that all C&YP in Scotland will be assigned a named person.
+The NPS aims to achieve two policy aims: first, a shift away from intervention by public authorities after a risk to welfare has been identified, to an emphasis on early intervention to promote wellbeing.
+Secondly, moving from a legal structure under which the duties of statutory bodies to cooperate were linked to the performance of their individual functions, to one which ensures that they work collaboratively and share information in order to support wellbeing.
+The 2014 Act is supplemented by revised statutory guidance (the Guidance), which is still in draft.
+Part 4 of the 2014 Act (Part 4) provides that named persons will exercise certain functions in relation to C&YP.
+These include: (a) advising, informing or supporting them or their parents; (b) helping them or their parents access a service or support; and (c) discussing or raising a matter about them with a service provider (e.g. health boards and local authorities) or relevant authority (e.g. the NHS and Scottish Police Authority).
+The authority responsible for the provision of the NPS (the NPS Provider) changes depending on the age and circumstances of the child or young person.
+Part 4 also sets out powers and duties relating to information sharing, including (in s.23) conditions for when information must be shared following a change in NPS Provider, and (in s.26) conditions for when information must be shared between service providers or relevant authorities, and the NPS Provider.
+Section 26(8) includes an additional power of disclosure where the NPS Provider holds information and it considers that providing it to a service provider or relevant authority is necessary or expedient (s.26(9)) for the purpose of the exercise of any of the named person functions.
+The powers and duties of disclosure under ss.23 and 26 cannot, however, be exercised where the information would be provided in breach of a prohibition or restriction under an enactment.
+The appellants are four registered charities with an interest in family matters, and three individual parents.
+They challenged Part 4 by way of judicial review on the basis that it is outside the legislative competence of the Scottish Parliament under the Scotland Act 1998 (the Scotland Act) because: (a) it relates to matters which are reserved under the Scotland Act to the UK Parliament (the Reserved Matters Challenge); (b) it is incompatible with rights under the European Convention on Human Rights (the ECHR Challenge); and/or (c) it is incompatible with EU law (the EU Law Challenge).
+The appellants challenges were dismissed in both the Outer House and the Inner House of the Court of Session.
+They now appeal to the Supreme Court.
+The Supreme Court unanimously allows the appeal on the basis of the ECHR Challenge and the EU Law Challenge (to the extent it mirrors the ECHR Challenge).
+The Court invites written submissions
+as to the terms of its order under s.102 of the Scotland Act in order to give the Scottish Parliament and Scottish Ministers an opportunity to address the matters raised in the judgment.
+In the meantime, since the defective provisions of Part 4 of the 2014 Act are not within the legislative competence of the Scottish Parliament, they cannot be brought into force.
+Lady Hale, Lord Reed and Lord Hodge (with whom Lord Wilson and Lord Hughes agree) give the joint leading judgment.
+The Reserved Matters Challenge Part 4 is challenged on the ground that the data sharing provisions relate to the reserved matter of the Data Protection Act 1998 (the DPA) and Council Directive 95/46/EC (the Directive).
+Whether a provision relates to a reserved matter under the Scotland Act is determined by reference to its purpose [27 33].
+The subject matter of the Directive (and therefore the DPA, which implemented the Directive in the UK) is the standards of protection which must be afforded to data and the methods by which those standards are secured [34 39].
+The DPA imposes obligations on data controllers in relation to data processing, and creates rights for data subjects and a system for the regulation of data controllers.
+Section 35 of the DPA allows scope for derogation from certain of its requirements by legislation, which may include devolved legislation [44].
+The bodies described in Part 4 as service providers and relevant authorities are currently subject to legal duties in relation to the disclosure of information as data controllers under the DPA [45 47].
+The result of these duties is that information about C&YP can currently be disclosed, without their consent, if the disclosure is necessary in order to protect their vital interests, or if the disclosure is necessary for the exercise of a statutory function.
+These thresholds are higher than those under Part 4 which (respectively) refer to disclosure being likely to benefit wellbeing, and being likely to be relevant to the exercise of statutory functions.
+Data controllers are also obliged to comply with other data protection principles under the DPA [48].
+Further protections are included in relation to sensitive data (e.g. health and sexual life) under Schedule 3 to the DPA [49 50].
+The effect of Part 4 on the requirements of the DPA is extremely complex and was not fully discussed at the hearing.
+Sections 23 and 26 of Part 4 do not permit disclosure of information in breach of a prohibition or restriction on its disclosure arising by virtue of an enactment.
+At first sight, that means that disclosure under Part 4 is subject to compliance with the requirements of the DPA, since the DPA is an enactment.
+However, under sections 27 and 35 of the DPA, personal data are exempt from some of the requirements of the DPA where the disclosure is required by or under any enactment.
+An Act of the Scottish Parliament is an enactment for this purpose.
+The result is a logical puzzle [51 54].
+It is, however, clear that the powers and duties of disclosure under Part 4 cannot be taken at face value; in several respects, they are significantly curtailed by the DPA and the Directive [55 58].
+However, although Part 4 contains powers and duties the objective of which is to ensure that information is shared, that objective is not distinct from the overall purpose of promoting the wellbeing of C&YP [64].
+Part 4 also does not detract from the regime established by the DPA and the Directive [65].
+Part 4 does not therefore relate to the subject matter of the DPA and the Directive for the purposes of the Scotland Act, and the Reserved Matters Challenge cannot succeed [66].
+The ECHR Challenge The appellants claim that the NPS breaches Article 8 ECHR rights.
+This is both (a) on the broad basis that compulsory appointment of a named person without parental consent amounts to a breach of the parents Article 8 rights, and (b) on the narrow basis that the information sharing provisions under Part 4 amount to breaches of parents and C&YPs Article 8 rights [67 68].
+The Community Law Advice Network, as intervener, also challenged the information sharing provisions on the basis that they impose too low a threshold for the disclosure of confidential information and amount to an infringement of the Article 8 rights of C&YP.
+This meant that there was more focus on Article 8 in the appeal before this Court than there had been before the Court of Session below [69].
+In the context of the 2014 Act, the interests protected by Article 8 include both family life [71 74] and privacy [75 77], and the operation of the information sharing provisions of Part 4 will result in interferences with those interests [78].
+In accordance with the law In order for that interference to be in accordance with the law (for the purposes of Article 8(2)), the measures must not only have some basis in domestic law but also be accessible to the person(s) concerned and foreseeable as to their effects.
+This means rules must be formulated with sufficient precision to give legal protection against arbitrariness [79 81].
+In assessing the legality of Part 4, regard must be had to the Guidance [82].
+As is clear from the Courts findings on the Reserved Matters Challenge, there are difficulties in accessing the relevant rules for information sharing.
+An information holder would need to read together and cross refer between Part 4, the DPA and the Directive in order to work out the priority of their provisions.
+Of even greater concern is the lack of safeguards which would enable the proportionality of any interference with Article 8 to be adequately examined [83 84].
+For example, information, including confidential information concerning a child or young persons state of health (e.g. as to contraception, pregnancy or sexually transmitted disease), could be disclosed to a wide range of authorities without either the child or young person or their parents being aware of the interference with their Article 8 rights, and in circumstances in which there was no objectively compelling reason for the failure to inform them.
+Accordingly, as currently drafted, the information sharing sections of Part 4 and the Guidance do not satisfy the requirement of being in accordance with the law [85].
+Proportionality In assessing whether the operation of Part 4 would give rise to interferences with Article 8 which are disproportionate having regard to the legitimate aim pursued, it is necessary to distinguish between the 2014 Act and its operation in individual cases [86 88].
+Focusing on the proportionality of the legislation itself, Part 4 undoubtedly pursues legitimate policy aims and is clearly rationally connected to those aims [91 92].
+Allowing the legislature the appropriate margin of discretion, Part 4 is also a reasonable measure for the legislature to impose in order to achieve those legitimate aims.
+It is for this reason that the appellants broad challenge cannot succeed.
+If a named person could be appointed only with parental consent, the scope for early intervention would be diminished [93].
+However, the operation of Part 4 may well give rise to disproportionate interferences in particular cases: First, there is a risk that parents will be given the impression that they must accept advice in relation to the services offered by a named person in the exercise of the named person functions, and that their failure to cooperate would be taken as evidence of risk of harm.
+Care should therefore be taken to emphasise the voluntary nature of the advice, information, support and help offered by the named person [94 95].
+Secondly, the information holder will have to address difficult questions of proportionality in relation to the disclosure of confidential information with the help of only the Guidance, which is limited, and the Part 4 criteria, which set too low a threshold for overriding duties of confidentiality [96 100].
+There is therefore a need for clear guidance to information holders as to how to assess proportionality when considering whether information should be shared [101].
+The EU Law Challenge In relation to the EU Law Challenge, there is no incompatibility additional to that identified in relation to the ECHR Challenge [102 105].
diff --git a/UK-Abs/test-data/summary/full/uksc-2015-0238.txt b/UK-Abs/test-data/summary/full/uksc-2015-0238.txt
new file mode 100644
index 0000000000000000000000000000000000000000..de35c1a5ab7c956a805bcb9d1048b150e4254807
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2015-0238.txt
@@ -0,0 +1,35 @@
+The issue in this appeal is the role of the Court of Protection where there is a dispute between the providers or funders of health or social care services for a person who lacks the capacity to make decisions for himself and members of his family about what should be provided for him.
+N is a profoundly disabled man, now in his twenties, who is part of a large, close and loving family.
+His disabilities require that carers are in attendance throughout the day and night.
+His parents have been unable to co operate with the authorities in meeting his needs and a care order was made in respect of N when he was eight.
+This necessarily came to an end when he was eighteen.
+Shortly before that point, the local authority issued proceedings in the Court of Protection seeking orders pursuant to the Mental Capacity Act 2005 (the MCA) that it was in Ns best interests for N to reside in a care home and for contact with his parents to be regulated and supervised by the local authority.
+Responsibility for his care passed to the National Health Service when he turned 18.
+It was not in dispute that N lacked the capacity to make decisions about his residence or contact with his family, nor that for the time being the care home provides a safe and settled environment for N.
+By the time of the hearing the issues between Ns parents and the respondent clinical commissioning group had narrowed to whether N could visit the family home and whether his mother could assist care home staff with his intimate care when she was visiting him there.
+The respondent considered that neither was in Ns best interests: the first would require additional trained carers which it was not prepared to fund, and the care home staff had concerns about the second, after the parents had declined an offer of the necessary training in manual handling.
+At the hearing the respondent argued that the Court of Protection, on Ns behalf, could only decide between the available options and that it was inappropriate to try to obtain a best interests declaration to put pressure on the respondent to make further funding available.
+The judge agreed that she could not consider the parents proposals for this reason, and she declared that the contact plan proposed by the respondents was in Ns best interests.
+The Court of Appeal upheld the judges decision.
+The Supreme Court unanimously dismisses Ns parents appeal.
+Although the Court of Protection had jurisdiction to continue with the planned hearing, it did not have power to order the respondent to fund the parents plan, nor to order the actual care providers to do that which they were unwilling or unable to do.
+The judge had therefore been entitled to conclude that no useful purpose was served by continuing the hearing.
+Lady Hale, with whom all the Justices agree, gives the only judgment.
+The jurisdiction of the Court of Protection is limited to decisions that a person (P) could take if he had the capacity to do so.
+It is not to be equated with the jurisdiction of the courts to make orders in respect of children: under the MCA the court does not become the guardian of an adult who lacks capacity and the adult does not become the ward of the court [24].
+The MCA focuses on capacity in relation to a specific decision or matter.
+Rather than granting declaratory relief available under section 15, it is better if possible for the court to make orders under section 16 [26].
+There is scope under section 16 for the court to make a decision on Ps behalf, or to appoint a deputy to make such decisions, and the courts powers set out in section 17 include the power to decide where P is to live and what contact, if any, P is to have with any specified persons.
+These powers do not extend to decisions compelling third parties to accommodate, or meet, or to provide services or treatments for P [29].
+The fact that the court has no greater power to take a decision than P would have had himself means that it too can only choose between the available options.
+It resembles the inability of the family court in children cases to oblige an unwilling parent to have the child to live with him, or to oblige an unwilling health service to provide a particular treatment for the child [35].
+Nor can the court use its powers to put pressure upon a local authority to make particular decisions in exercise of its statutory powers and duties to provide public services.
+Such decisions can instead be challenged on judicial review principles, where the legal considerations for the public authority and for the court will be different from those under the MCA [37].
+It was unfortunate in Ns case that the issue was described as one of jurisdiction since the Court of Protection clearly has jurisdiction to make declarations and orders under the MCA.
+The question was rather how Ns case should be handled in the light of the limited powers of the court [38].
+The court has wide case management powers, which include the identification of issues which need full investigation, and it is entitled to take the view that no useful purpose will be served by holding a hearing to resolve other issues [41].
+In this case, there were good reasons for thinking that Ns parents wishes were impracticable and that the respondent had good reasons for rejecting them.
+The Official Solicitor supported the respondent.
+It was unlikely that investigation would bring about any further modifications or consensus and it would be disproportionate to devote any more of the courts scarce resources to resolving matters [42].
+Accordingly, since the court did not have power to order the respondent to fund what Ns parents wanted, nor to order the actual care providers to do that which they were unwilling or unable to do, the judge was entitle to conclude (as in substance she had) that no useful purpose would be served by continuing the hearing [44].
+The appeal is therefore dismissed.
diff --git a/UK-Abs/test-data/summary/full/uksc-2015-0255.txt b/UK-Abs/test-data/summary/full/uksc-2015-0255.txt
new file mode 100644
index 0000000000000000000000000000000000000000..070975093f4eec3e8bc89d67a86990aa4ebcae1c
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2015-0255.txt
@@ -0,0 +1,30 @@
+This appeal concerns the legality of attempts by the Lord Chancellor to introduce a residence test for civil legal aid by amending the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).
+Part 1 of LASPO came into force on 1 April 2013.
+It includes section 9, subsection (1) of which provides that civil legal services are to be available to an individual if they are legal services described in Part 1 of Schedule 1, and the Director of Legal Aid Casework has determined that the individual qualifies for the services in accordance with Part 1 of LASPO.
+Part 1 of Schedule 1 accordingly sets out the services for which civil legal aid is available.
+Subsection 9(2) permits the Lord Chancellor to (a) add to, and (b) vary or omit services in Part 1 of the Schedule.
+In April 2013, the Ministry of Justice (MOJ) issued a paper in which it stated that, subject to certain specific exceptions, the Government would proceed with the introduction of a residence test so that only those who are lawfully resident in the UK (or Crown Dependencies or British Overseas Territories) at the time of the application and have so resided for a continuous period of at least 12 months at any point in the past would be eligible for civil legal aid.
+In September 2013, the Lord Chancellor decided to proceed with the proposal and to make regulations to that effect in the form of delegated legislation (the draft order), which was put before Parliament on 31 March 2014.
+Before the draft order was laid before Parliament, the Public Law Project applied to the High Court for a declaration that the draft order was unlawful on the basis that it was (i) ultra vires, i.e. outside the scope of the power granted to the Lord Chancellor by LASPO to bring forward delegated legislation; and (ii) unjustifiably discriminatory in its effect.
+The Divisional Court held that the draft order was unlawful on both grounds.
+Following the decision of the Divisional Court, the Lord Chancellor withdrew the draft order before any debate in the House of Lords could take place.
+On appeal, the Court of Appeal allowed the Lord Chancellors appeal on both grounds, holding that the draft order was intra vires and that, while it was discriminatory in its effect, the discrimination could be justified.
+The Public Law Project now appeal to the Supreme Court on both grounds.
+Following a hearing at which the Court heard argument on the ultra vires issue and indicated that it did not need to hear argument on the discrimination issue, the Supreme Court unanimously allows the
+Public Law Projects appeal on the ultra vires issue.
+Lord Neuberger gives the only judgment, with which the other Justices agree.
+The Public Law Project contend that the exclusion of a specific group of people from the right to receive legal services on the ground of personal circumstances or characteristics, which have nothing to do with the nature of the issue or services involved or the individuals need, or ability to pay, for the services, is not within the scope of the power accorded to the Lord Chancellor by section 9(2)(b) of LASPO, and that nothing in section 41 undermines that contention.
+That argument is accepted by the Court [30].
+In declaring subordinate legislation to be outside the scope of the statutory power pursuant to which it was purportedly made, the Court is upholding the supremacy of Parliament over the Executive [23].
+Section 9(2)(b) provides a power to vary or omit services, but the relevant parts of the draft order do not seek to vary or omit services; rather, they seek to reduce the class of individuals who are entitled to receive those services by reference to a personal characteristics or circumstance unrelated to the services (i.e. length of residency) [30].
+This interpretation of the wording of section 9(2) is supported by the wider statutory context.
+Each of the services identified in Part 1 and Part 2 of Schedule 1 is linked to a specific type of legal issue or claim, and has nothing to do with the personal circumstances or characteristics in particular the geographical residence of the potential recipient of the services [31].
+This conclusion is also supported by contrasting the wording of the two subsections of section 9.
+Subsection (1) clearly distinguishes between the question of whether the particular services qualify and whether the particular individual qualifies [33].
+Section 9(2) is concerned with the services which qualify, and it is section 11 which appears to be concerned with identifying the characteristics or circumstances of individuals who are to qualify for civil legal aid.
+The criteria that section 11 sets out all relate to the issue involved, the services concerned, or the need of the individual for financial assistance, in contrast to the draft order.
+This indicates that the draft order is attempting to do something which the legislature never had in mind when enacting section 9 [34].
+The Court of Appeal concluded that section 41 could be invoked to defeat the contention that the Lord Chancellor could not make the draft order under section 9.
+While it is true that section 41(2)(b) permits any order made under section 9(2)(b) to make provision by reference to services provided for a particular class of individual, this cannot extend the power under section 9(2)(b) so as to exclude a whole class of individuals from the scope of Part 1 of LASPO by reference to their residence [36].
+Section 41 is clearly intended to grant ancillary powers to those primarily granted under section 9 [36].
+Accordingly, the appeal should be allowed on the first, ultra vires, issue, and the Court does not have to deal with the discrimination issue [39].
diff --git a/UK-Abs/test-data/summary/full/uksc-2016-0004.txt b/UK-Abs/test-data/summary/full/uksc-2016-0004.txt
new file mode 100644
index 0000000000000000000000000000000000000000..b352c6edad8372a64ad6134fff7f0cb175ab5ca3
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2016-0004.txt
@@ -0,0 +1,32 @@
+The appellant was in the care of the respondent local authority from the ages of seven to eighteen.
+The local authority placed her into foster care with Mr and Mrs A between March 1985 and March 1986, and with Mr and Mrs B between October 1987 and February 1988.
+She was physically and emotionally abused by Mrs A, and sexually abused by Mr B. The case proceeded on the basis that the local authority were not negligent in the selection or supervision of the foster parents, but that they were nevertheless liable for the abuse perpetrated by her foster carers.
+She claimed that the local authority were liable for the abuse, either on the basis that they were in breach of a non delegable duty, or on the basis that they were vicariously liable for the wrongdoing of the foster parents.
+Her claim was dismissed by the High Court and the Court of Appeal.
+The Supreme Court allows the appeal by a majority of 4 1, finding the local authority vicariously liable for the abuse committed by the foster parents, but rejecting the argument that the local authority were liable on the basis of a non delegable duty.
+Lord Reed gives the lead judgment, with which Lady Hale, Lord Kerr and Lord Clarke agree.
+Lord Hughes gives a dissenting judgment.
+Non delegable duty of care A local authority are not under a non delegable duty to ensure that reasonable care is taken for the safety of children in care while they are in the care and control of foster parents.
+Such a proposition is too broad, and fixes local authorities with too demanding a responsibility [49].
+The following reasons are given: The Child Care Act 1980 (the 1980 Act) permits a local authority to arrange for children in care to spend time staying with their parents or grandparents, or other relatives or friends.
+Imposing a strict liability on local authorities for the lack of care of those relatives or friends would risk creating a conflict between the local authoritys duty, under section 18(1) of the 1980 Act, to give first consideration to the need to safeguard and promote the welfare of the child, and their interests in avoiding exposure to such liability.
+It would also risk creating a form of state insurance in situations where the local authority place the child with the childs own parents [45].
+The 1980 Act required the local authority to discharge the duty to provide accommodation and maintenance for a child, including by placing the child with foster parents.
+This implies that,
+although the local authority have numerous duties towards the child, their duty is not to provide the child with day to day care, but rather to arrange for, and monitor, the performance of that function by the foster parents [46 47].
+The Secretary of State makes regulations under section 22 of the 1980 Act imposing duties on local authorities in relation to the boarding out of children.
+The implication of section 22 is that the local authoritys continuing responsibility for the child is discharged by boarding out the child in accordance with those regulations, including by prior approval of the household, and subsequent inspection, supervision and removal.
+The statutory regime does not impose any responsibility for the day to day care of the child [48].
+Vicarious liability Applying the principles set out in Cox v Ministry of Justice [2016] UKSC 10 on the imposition of vicarious liability, the local authority are vicariously liable for the acts of the foster parents in the present case for the following reasons: Integration and business activity: The local authority carried out the recruitment, selection and training of foster parents, paid their expenses, and supervised the fostering.
+In those circumstances, the foster parents were not carrying on an independent business of their own, and it is impossible to draw a sharp distinction between the activity of the local authority and that of the foster parents.
+Thus the abuse committed by the foster parents against the claimant was committed by the foster parents in the course of an activity carried on for the benefit of the local authority [59 60].
+Creation of risk: The placement of children with foster parents creates a relationship of authority and trust between the foster parents and children in circumstances where close control cannot be exercised by the local authority.
+This renders the children particularly vulnerable to abuse [61].
+Control: The local authority exercised a significant degree of control over the foster parents: it exercised powers of approval, inspection, supervision and removal [62].
+Micro management, or a high degree of control, are not necessary for the imposition of vicarious liability [65].
+Ability to pay damages: Most foster parents have insufficient means to meet a substantial award of damages, whilst local authorities can more easily compensate the victims of abuse [63].
+There was no evidence to suggest that imposing vicarious liability would discourage local authorities from placing children in care with foster parents, and encourage them instead to place them in residential homes, at much greater cost. [68].
+In response to the concerns raised by Lord Hughes: (1) The approach adopted would not have resulted in the imposition of vicarious liability if the appellant had been placed with her own parents. (2) This decision is concerned only with the legislation and practice that was in force at the relevant time, not with the current regime. (3) The courts care not to impose unduly exacting standards in the context of family life applies equally to life in foster families [71 73].
+Lord Hughes gives a dissenting judgment on the vicarious liability issue.
+He considers that the majoritys approach would extend vicarious liability to family and friend placements under the current statutory regime, and consequently inhibit local authorities practice of making such placements.
+Finally, he considers that it may result in undesirable litigation of family activity in the courts [87 90].
diff --git a/UK-Abs/test-data/summary/full/uksc-2016-0048.txt b/UK-Abs/test-data/summary/full/uksc-2016-0048.txt
new file mode 100644
index 0000000000000000000000000000000000000000..372b165b5bd156a9ea0e0a2ec1c36c546f275f8d
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2016-0048.txt
@@ -0,0 +1,27 @@
+These proceedings concern a child, called DD in the judgment, who was born in 2006 in Romania, to Romanian parents who met while working in England.
+The family returned to England after the birth.
+The parents separated in 2007 and DD has lived in England since then in the care of his mother.
+The father returned to Romania in 2009 but has maintained a significant relationship with his son.
+He commenced divorce and custody proceedings in Romania in 2007 which, after long delays, culminated in a decision of the Bucharest Court of Appeal in November 2013 that DD should live with his father.
+The father applied for the recognition and enforcement of this custody order by the English court in February 2014.
+These proceedings are governed by the Brussels II (Revised) Regulation (BIIR).
+DD was made a party.
+In July 2014 a High Court judge refused the fathers application, applying article 23(b) BIIR which provides that a judgment should not be recognised if it was given, except in a case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the member state in which recognition was sought.
+The Romanian court had not made direct or indirect enquiry of DD regarding his wishes and feelings.
+The Court of Appeal upheld the judges order.
+The father sought to pursue a further appeal to the Supreme Court.
+The Supreme Court considered as a preliminary issue whether it had jurisdiction to hear an appeal against an order for the enforcement of a custody order in proceedings governed by BIIR.
+The Supreme Court unanimously rules that it does not have jurisdiction to hear the fathers appeal, which must therefore be struck out.
+Lady Hale gives the only substantive judgment.
+Under s 40 of the Constitutional Reform Act 2005, appeals to the Supreme Court are subject to provision under any other enactment restricting such an appeal.
+The question therefore is whether the provisions of BIIR constitute such an enactment or otherwise override the jurisdiction granted to the Supreme Court by s 40 [12].
+The application to register a judgment governed by BIIR is intended to be a speedy and essentially administrative process.
+Either party may appeal the decision under article 33, which is subject to the provision in article 34 that the judgment given on such an appeal may be contested only by the proceedings referred to in the list notified by each member state to the Commission pursuant to article 68.
+The UK has provided in its list of notifications under article 68 that appeals in England and Wales
+under article 34 may be brought only by a single further appeal on a point of law to the Court of Appeal [16].
+It has been the practice of the UK in several previous European instruments concerned with the free movement of judgments and judicial cooperation to provide for only one tier of further appeal.
+The purpose of this restriction is to further the intention of these instruments that member states should recognise and enforce each others judgments without too many avenues for challenge [26].
+The provisions of BIIR and the notification under article 68 are directly applicable in the UK.
+Article 34 does not depend for its implementation upon the member states choice of avenue of appeal and in any event the UK did make a notification [37].
+It is not necessary for the notification to reflect all appellate rights under UK law: to further the objective of BIIR, article 68 permits member states to make notifications which cut down the routes of appeal which would otherwise be available [38].
+It follows that the Supreme Court has no jurisdiction to entertain an appeal in this case and the appeal is struck out.
diff --git a/UK-Abs/test-data/summary/full/uksc-2016-0052.txt b/UK-Abs/test-data/summary/full/uksc-2016-0052.txt
new file mode 100644
index 0000000000000000000000000000000000000000..1376b25d5353cda15807d3be9c0ecae78f50aefb
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2016-0052.txt
@@ -0,0 +1,31 @@
+The appellant was convicted of drug trafficking offences on 21 May 1999 and sentenced to 25 years imprisonment.
+On 29 March 2000, he was ordered to pay a little over 5.4 million by way of a confiscation order.
+The order required the appellant to pay the amount within 12 months or serve six years imprisonment in default of payment.
+On 4 May 2007, a receiver appointed to realise the appellants assets paid 12,500.
+The magistrates deducted seven days from the six year term in default, to account for that part payment.
+At that time interest had increased the net sum outstanding, allowing for the part payment, to 8.1 million.
+Later in 2007 and 2011, the appellants receiver made further payments of 12,500 and 65,370.
+The prison authorities calculated the reduction in the six year default term on the basis of the proportion which these payments bore to the 8.1 million at the time of his committal.
+That produced a total reduction of 24 days.
+Had the arithmetic been applied instead to an outstanding figure confined to the original 5.4m, an extra 11 days reduction would have been made.
+The issue in the appeal is whether interest is included in the starting point under s.79(2) Magistrates Courts Act 1980 for the giving of proportionate credit for part payment of a confiscation order.
+The Supreme Court unanimously allows the appeal.
+Lord Reed and Lord Hughes give a joint judgment with which the other Justices agree.
+The key provisions of the Drug Trafficking Act 1994 (DTA), as in force at the relevant time, were s.10(1), which treats interest for the purposes of enforcement as part of the amount to be recovered under the confiscation order and s.10(2) which enables a Crown Court judge to refix and increase the default term if the addition of accrued interest takes the sum outstanding into a higher bracket in the relevant schedule of defaults terms. [7] At the relevant time, s.9 DTA stated that where the Crown Court orders a defendant to pay any amount under s.2 DTA, ss.139(1) (4) and 140(1) (3) of the Powers of Criminal Courts (Sentencing Act) 2000 (the 2000 Sentencing Act) shall have the effect as if that amount were a fine imposed on the defendant by the Crown Court. [9] S.140(1) of the 2000 Sentencing Act treats for enforcement purposes a fine imposed by the Crown Court as if it had been imposed by the magistrates, and thus a confiscation order is treated the same.
+S.76 Magistrates Courts Act 1980 contains the magistrates power to commit an individual to prison for failure to pay a fine and an alternative power to issue a warrant of distress (now named a warrant of control).
+S.79 Magistrates Courts Act 1980 is the only provision dealing with part payments. [11] The difficulties in this case arise from the fact that the enforcement of confiscation orders is achieved by applying statutory provisions to confiscation orders which were not designed for them.
+A confiscation order is thus treated as if it was a fine imposed by the magistrates.
+The difference between a magistrates imposed fine and a Crown Court imposed fine is that magistrates do not fix a default term when imposing the fine.
+Imprisonment in default is only considered in the event of a default and, at that time, the magistrates will know whether the default is total or partial.
+Thus, credit can be given for part payments made before the commitment process is undertaken.
+However, s.139(2) of the 2000 Sentencing Act mandates the fixing of an anticipatory default term at the time the fine or order is imposed. [12] The difference in practices led the lower courts to analyse s.79(2) Magistrates Courts Act 1980 as assuming the standard magistrates practice and thus to conclude that the references in that subsection to a period of imprisonment having been imposed in default of payment were references to the act of the magistrates in issuing the warrant of commitment.
+This caused the consequential difficulty that s.79(2) would say nothing about how to deal with part payments made in Crown Court cases between the Crown Court making a confiscation order and the later magistrates proceedings.
+Hence the Court of Appeal understandably read additional words into s.79(2). [13] The period of imprisonment in default of payment is imposed for the purposes of s.79 when the Crown Court discharges its statutory duty under s.139(2) of the 2000 Sentencing Act and fixes the (anticipatory) term in default.
+This construction follows from s.150 Magistrates Courts Act 1980 and is necessary to make sense of s.140(3) of the 2000 Sentencing Act.
+It is also assumed by the Magistrates Court Rules.
+Thus, the default term in the case of Crown Court orders must be the term that the court imposed at the time of making its order. [15 17] The operative words of s.79(2) expressly say that the days to be deducted are to be the number which bear the same proportion to the total default term imposed (by the Crown Court) as the part payments bear to so much of the said sum as was due at the time the period of detention was imposed.
+At the time the Crown Court imposed the default term, there was as yet no interest accrued at all. [20] Straining of the wording of s.79(2) cannot be justified where it would adversely impact on the period of imprisonment to which a person is subject.
+Penal legislation, particularly legislation imposing penalties that deprive liberty, is construed strictly.
+The natural construction of the section is that the starting point for the arithmetical calculation of reduction in days of imprisonment is the sum outstanding at the time of the Crown Court order. [21] charges of distress do not support the respondents construction.
+The reference is explained by the case of magistrates first issuing a warrant for distress and only subsequently fixing the default term for non payment.
+The addition of such costs and charges is expressly provided for and that does not mean that an equivalent provision can be read in as a consequence of a provision in different statute (s.10(1) DTA). [22]
diff --git a/UK-Abs/test-data/summary/full/uksc-2016-0080.txt b/UK-Abs/test-data/summary/full/uksc-2016-0080.txt
new file mode 100644
index 0000000000000000000000000000000000000000..07da65f6ad4cdce5dce12eafb8426556c243cc3f
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2016-0080.txt
@@ -0,0 +1,36 @@
+PJS is married to YMA.
+Both are well known individuals in the entertainment business.
+They have two young children.
+Between 2009 and 2011 PJS had a sexual relationship with AB and, on one occasion, with AB and CD.
+In January 2016 the editor of the Sun on Sunday newspaper, published by News Group Newspapers (NGN), notified PJS that he proposed to publish ABs account of the relationship.
+PJS issued proceedings claiming that the publication would breach his rights to privacy and confidentiality, protected by article 8 of the European Convention on Human Rights (ECHR).
+He applied for an interim injunction, to restrain publication pending the trial of his claim.
+This application required the court to balance PJSs article 8 rights with NGNs right to freedom of expression under article 10 ECHR, and was subject to s 12 of the Human Rights Act 1998 (HRA).
+Section 12(3) provides that an interim injunction can only be granted if a claimant is likely to establish at trial that publication should not be allowed.
+Section 12(4) provides that the court must have particular regard to the importance of freedom of expression and, in relation to journalistic material, to the extent to which the material has or is about to become available to the public, to the public interest in the material being published, as well as to any relevant privacy code.
+The High Court refused the application but the Court of Appeal allowed PJSs appeal on 22 January 2016 and granted an interim injunction which restrained publication of information which would disclose the identity of PJS and details of the sexual relationship.
+On 6 April 2016 ABs account was published in print in the United States, and thereafter in Canada and in Scotland, identifying PJS.
+As a result of representations by the appellants solicitors, publication was restricted to hardcopy editions and online publication was geo blocked such that internet users in England and Wales could not readily access those sites.
+However, details have been published on a number of other websites and social media, although the appellants solicitors have been doing their best to remove offending URLs and web pages.
+On 12 April 2016 NGN applied to the Court of Appeal to set aside the interim injunction on the ground that, as the information was now in the public domain, PJS was unlikely to obtain a permanent injunction at trial and the interim injunction could therefore no longer be justified.
+On 18 April 2016 the Court of Appeal held that the injunction should be discharged.
+The Supreme Court restored it pending determination of PJSs application for permission to appeal, which it ordered to be heard with the appeal, should permission be granted.
+The Supreme Court unanimously grants permission to appeal; and allows PJSs appeal by a majority of 4 to 1.
+Lord Mance gives the leading judgment, with which Lord Neuberger and Lady Hale (each of whom give supporting judgments) and Lord Reed agree.
+Lord Toulson gives a dissenting judgment.
+As the Court of Appeal erred in law, the Supreme Court grants permission to appeal and must decide for itself whether the interim injunction should be discharged or maintained [19].
+The principal error is that the Court of Appeal wrongly directed itself that s 12 HRA enhanced the weight to be given to article 10 rights in the balancing exercise, when the case law establishes that neither article 8 nor article 10 has preference over the other and what is necessary is an intense focus on the comparative rights being claimed in the individual case [20][51].
+The Court of Appeal also referred to a limited public interest in the story when it had rightly held that there was none in its earlier judgment [21].
+There is not, on its own, any public interest in the legal sense in the disclosure of private sexual encounters even if they involve infidelity or more than one person at the same time, however famous the individual(s) involved [24][32].
+It is essential to distinguish between the claims for breach of privacy and for breach of confidence.
+The widespread availability of the information in the public domain may well mean that PJS would face difficulties in obtaining a permanent injunction in so far as his claim is based on confidentiality [57], but different considerations apply to privacy claims, where the impact of any additional disclosure on the likely distress to PJS and his family, and the degree of intrusion or harassment, continues to be highly relevant.
+The question is whether the injunction can still serve a useful purpose.
+It is important to consider the medium and form of the previous publication: there is a qualitative difference in intrusiveness and distress between the disclosures on the internet which have occurred and the media storm which would follow from publication by the English media in hard copy, together with unrestricted internet coverage of the story [35][63].
+Publication in this form is contrary to the interests of PJSs children and in breach of the requirement to show an exceptional public interest for the intrusion set out in the Editors Code of Practice to which NGN has subscribed [36].
+Lady Hales judgment discusses this consideration further, partly in redacted form to prevent identification [72 78] Rights must be practical and effective.
+The grant of an injunction is the only remedy of any value to PJS and his family, for whom the invasion of privacy occasioned by further disclosure in the English media, rather than any award of damages, is likely to be the real concern [43].
+The central issue is whether the trial judge is likely to grant a permanent injunction.
+Balancing all these factors, the majority concludes that PJS is likely to establish at trial that the proposed publication by NGN constitutes a serious breach of his and his familys privacy rights, with no countervailing public interest on the present evidence, and that he is likely to be granted a permanent injunction notwithstanding the internet and social media publication.
+Accordingly, the interim injunction is maintained [44 45][68].
+Lord Toulson, dissenting, would have upheld the discharge of the injunction.
+He considers that where the information is widely available, the form of the publication should not make a significant difference: the purpose of s 12(3) is to discourage the granting of an injunction to prevent publication of information which is already widely known [89].
diff --git a/UK-Abs/test-data/summary/full/uksc-2016-0082.txt b/UK-Abs/test-data/summary/full/uksc-2016-0082.txt
new file mode 100644
index 0000000000000000000000000000000000000000..6d8d789cb9fcbc7c97765c2cb6b11a0f40905f76
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2016-0082.txt
@@ -0,0 +1,37 @@
+In July 2008, the Appellant, then aged 76, was knocked over on a street in the centre of Huddersfield by a group of men.
+Two of the men were police officers (DS Willan and PC Dhurmea) and the third was a suspected drug dealer (Williams) whom they were attempting to arrest.
+As the officers struggled with Williams, he backed into the Appellant, who was standing close by.
+She fell over, and the three men fell on top of her, causing her to be injured.
+The officers had foreseen that Williams would attempt to escape.
+They had not noticed that the Appellant was in the immediate vicinity.
+The principal question to be decided in this appeal was whether the officers owed a duty of care to the Appellant and whether, if they did, they were in breach of that duty.
+The judge held that the officers had been negligent, but that the police were immune from claims against them in negligence.
+The Court of Appeal found that most claims against the police when engaged in their core functions will fail the third stage of the Caparo test i.e. that it will not be fair, just and reasonable to impose a duty of care.
+The Court also found that Williams had caused the harm to the Appellant and the case therefore concerned an omission by the police, rather than a positive act.
+Finally, the Court considered that even if the officers had owed the Appellant a duty of care, they had not acted in breach of it.
+The issues to be resolved in the Supreme Court were (1) does the existence of a duty of care always depend on an application of the Caparo test (2) is there a general rule that the police are not under any duty of care when discharging their core functions, and is there any distinction between acts and omissions (3) was this a positive act or an omissions case (4) did the police owe a duty of care to the Appellant (5) if so, was the Court of Appeal correct to overturn the judges finding that the officers failed in that duty and (6) if there was a breach of a duty of care, were the Appellants injuries caused by it?
+The Appeal is allowed.
+Lord Reed gives the lead judgment with which Lady Hale and Lord Hodge agree.
+Lord Mance and Lord Hughes also allow the appeal but reach the conclusion that a duty of care existed by different reasoning.
+The proposition that there is a Caparo test which applies to all claims in the modern law of negligence, and that in consequence the court will only impose a duty of care where it considers it fair, just and reasonable to do so on the particular facts, is mistaken [21 24].
+It is normally only in novel cases, where established principles do not provide an answer, that the courts need to exercise judgment that involves consideration of what is fair, just and reasonable [27].
+This case concerned an application of established principles of the law of negligence and so the existence of a duty of care did not depend on the application of a Caparo test [30].
+Like other public authorities, in accordance with the general law of tort, the police are subject to liability for causing personal injury [45 48].
+On the other hand, as held by the Supreme Court in Michael v Chief Constable of South Wales Police (Refuge and others intervening) [2015] UKSC 2, the general duty of the police to enforce the criminal law does not carry with it a private law duty towards individual members of the public.
+The common law does not normally impose liability for omissions, or, more particularly, for a failure to prevent harm caused by the conduct of third parties [50].
+The case of Hill v Chief Constable of West Yorkshire [1989] AC 53 is not authority for the proposition that the police enjoy a general immunity from suit in respect of anything done by them in the course of investigating or preventing crime.
+The effect of Hill is that the police do not owe a duty of care, in the absence of special circumstances, to protect the public from harm through the performance of their function of investigating crime [54 55].
+The authorities relied on by the respondent [56 66] are not inconsistent with the police being generally under a duty of care to avoid causing personal injury where such a duty would arise according to ordinary principles of the law of negligence [67 68].
+Applying these principles, the police may be under a duty of care to protect an individual from danger of injury which they have themselves created [70].
+The present case concerned a positive act, not an omission.
+The reasonably foreseeable risk of injury to the Appellant when the arrest was attempted was enough to impose a duty of care on the officers [74].
+The judge was entitled to find negligence where Willan accepted that he was aware of the risk that Williams would attempt to escape and of the risk to members of the public in that event, that he would not have attempted the arrest at a time when he was aware that someone was in harms way, and that he had failed to notice the Appellant [75 78].
+The Appellants injuries were caused by the officers breach of their duty of care; she was injured as a result of being exposed to the danger from which they had a duty of care to protect her [79 80].
+Both Lord Mance and Lord Hughes agreed with the majority that the present case concerned a positive act, not an omission, and that the finding of the trial judge on negligence should be restored [82; 122 124].
+However, Lord Mance found it unrealistic to suggest that, when recognising and developing an established category of liability, the courts are not influenced by policy considerations [84].
+It was not possible to state absolutely that policy considerations may not shape police liability where the conduct of the police may be analysed as positive, rather than simply as involving some form of omission [85 94].
+However, he concluded that we should now recognise the direct physical interface between the police and the public, in the course of an arrest placing an innocent passer by at risk, as falling within a now established area of general police liability for positive negligent conduct which foreseeably and directly inflicts physical injury [97].
+Lord Hughes referred to vital policy considerations which impose limits on the duty of care which the police owe to individuals.
+Such considerations are the ultimate reason why there is no duty of care imposed on police officers engaged in the investigation and prevention of crime towards victims, suspects or witnesses.
+The greater public good requires the absence of any duty of care [103 120].
+In response to these points, Lord Reed emphasised that discussion of policy considerations is not a routine aspect of deciding cases in the law of negligence, and is unnecessary when existing principles provide a clear basis for the decision, as in the present appeal [69].
diff --git a/UK-Abs/test-data/summary/full/uksc-2016-0210.txt b/UK-Abs/test-data/summary/full/uksc-2016-0210.txt
new file mode 100644
index 0000000000000000000000000000000000000000..523f1e9b5eec101949d95d54ffbb295ed8e75498
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2016-0210.txt
@@ -0,0 +1,36 @@
+There is a recognised need for private pension schemes to provide some form of indexation of pensions to protect the value of members pensions against price inflation.
+To this end, Barnardos adopted a pension scheme which provides for pensions in the course of payment to be increased by the prescribed rate, which is defined as an increase at the rate of the lesser of: (a) 5%, and (b) the percentage rise in the Retail Prices Index (if any) over the year ending on the previous 31 December.
+The definition of Retail Prices Index lies at the heart of the dispute: Retail Prices Index means the General Index of Retail Prices published by the Department of Employment or any replacement adopted by the Trustees without prejudicing Approval.
+Where an amount is to be increased in line with the Retail Prices Index over a period, the increase as a percentage of the original amount will be equal to the percentage increase between the figures in the Retail Prices Index published immediately prior to dates when the period began and ended, with an appropriate restatement of the later figure if the Retail Prices Index has been replaced or re based during the period (the Definition).
+The critical clause in the Definition is or any replacement adopted by the Trustees without prejudicing Approval.
+Barnardos argues that this clause empowers the trustees to adopt another index which they consider a more suitable measure of price inflation (such as the Consumer Prices Index (the CPI)), regardless of whether or not the Retail Price Index (RPI) continues to be published.
+Representatives of members of the scheme, who are concerned that the adoption of the CPI as the index would over time reduce benefits which they receive from the scheme, argue that the clause does not empower the trustees to depart from the RPI for the purposes of the indexation if the RPI continues to be published.
+The trustees adopt a neutral stance.
+The trustees sought a ruling on the meaning of the Definition.
+The High Court held that, on a proper construction, the Definition did not empower the trustees to adopt an index other than the RPI unless the RPI had been discontinued as an officially published index and replaced.
+Barnardos appealed this decision.
+The Court of Appeal by majority (Lewison and McFarlane LLJ, Vos LJ dissenting) dismissed the appeal.
+Barnardos appealed to the Supreme Court.
+The Supreme Court unanimously dismisses the appeal.
+Lord Hodge gives the sole judgment with which the other Justices agree.
+In deciding which interpretative tools will best assist in ascertaining the meaning of a contract or trust, and the weight to be given to each of the relevant interpretative tools, English courts must have regard to the nature and circumstances of the particular instrument [13].
+A pension scheme has several distinctive characteristics which are relevant to the courts selection of the appropriate interpretative tools.
+First, it is a formal legal document which has been prepared by skilled and specialist legal draftsmen.
+Secondly, unlike many commercial contracts, it is not the product of commercial negotiation between parties who may have conflicting interests and who may conclude their agreement under considerable pressure of time.
+Thirdly, it is an instrument which is designed to operate in the long term, defining peoples rights long after the economic and other circumstances, which existed at the time when it was signed, may have ceased to exist.
+Fourthly, the scheme confers important rights on parties, the members of the pension scheme, who were not parties to the instrument and who may have joined the scheme many years after it was initiated.
+Fifthly, members of a pension scheme may not have easy access to expert legal advice or be able readily to ascertain the circumstances which existed when the scheme was established [14].
+In light of these characteristics, it is appropriate for the Court to give weight to textual analysis, by concentrating on the words which the draftsman has chosen to use and by attaching less weight to the background factual matrix than might be appropriate in certain commercial contracts [15].
+However, the emphasis on textual analysis as an interpretative tool does not derogate from the need both to avoid undue technicality and to have regard to the practical consequences of any construction.
+Such an analysis does not involve literalism but includes a purposive construction when that is appropriate [16].
+The Court is persuaded that the correct interpretation of the first sentence of the Definition is that RPI means the RPI or any index that replaces the RPI and is adopted by the trustees [19].
+The Court reaches this view for the following eight reasons.
+First, the draftsman chose to use the word replacement which does not naturally suggest the selection of an alternative to an option which remains available.
+It is, nonetheless, capable of bearing that meaning, and one must look to the context for guidance [20].
+Secondly, the word order and grammatical construction of the phrase a replacement adopted by the trustees suggest that the RPI must first be replaced and that the trustees adopt the replacement. [21].
+Thirdly, the existence of a discretion on the part of the trustees and the requirement that the adoption should not prejudice the approval of the Commissioners of Inland Revenue (CIR) do not militate against this view [22].
+Fourthly, consistency within the rules of the scheme as a whole, and indeed within the Definition itself, would suggest that it is the relevant official authority and not the trustees who are to effect the replacement in the first sentence of the Definition [23].
+Fifthly, the CIR guidance on approval of schemes does not assist because the draftsman has not chosen to use wording similar to that guidance in the Definition [25].
+Sixthly, the superseded rules do not assist in interpreting the Definition [26].
+Seventhly, a provision which provides for the circumstance of the official replacement of a cost of living index does not lack a rational purpose [27].
+Eighthly, while the requirement of indexation by reference to the RPI imposes obligations on Barnardos and contributes to the pension deficit at a time when many see the CPI as a more reliable index for the cost of living, the Court must construe the rules of the scheme without any preconceptions as to whether a construction should favour the sponsoring employer or the members [28].
diff --git a/UK-Abs/test-data/summary/full/uksc-2016-0213.txt b/UK-Abs/test-data/summary/full/uksc-2016-0213.txt
new file mode 100644
index 0000000000000000000000000000000000000000..83fd5ce03a47ce27c2a6218687c31220f209efd5
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2016-0213.txt
@@ -0,0 +1,45 @@
+This appeal arises out of a case where a professional gambler, Mr Ivey, sues a casino, Crockfords, to recover his winnings at Punto Banco.
+Mr Ivey claims for his winnings in circumstances where Crockfords refused to pay out because it believed Mr Ivey cheated.
+The appeal raises questions about the meaning of the concept of cheating at gambling and the relevance of dishonesty to that concept.
+Punto Banco is a variant of Baccarat and is not normally a game of skill.
+The different odds applied to certain bets mean that the casino enjoys a small advantage, taken over all the play.
+In Punto Banco at Crockfords it was 1.24% if the player wins and 1.06% if the banker wins.
+Edge sorting is possible when the manufacturing process of playing cards causes tiny differences to appear on the edges of the cards so that, for example, the edge of one long side is marginally different from the edge of the other.
+It is possible for a sharp eyed person sitting close to a card shoe (the holder that dispenses the playing cards) to see which long edge it is.
+This information becomes useful only if things can be arranged so that the cards which the gambler is most interested in are all presented with one long edge facing the table, whilst all the less interesting cards present the other long edge.
+Then the gambler knows which kind of card is next out of the shoe.
+Using edge sorting to identify high value cards in Punto Banco will give the player a long term edge of about 6.5% over the house if played perfectly accurately.
+On 20 and 21 August 2012, Mr Ivey and his associate, Ms Sun, played Punto Banco at Crockfords.
+Mr Ivey openly admits to the use of edge sorting during this game.
+Mr Ivey asked the senior croupier that the same shoe of cards be re used if he indicated to him that he won.
+Ms Sun (affecting superstition) asked the croupier to turn the cards in a particular manner if she indicated they were good or not good.
+The croupier had no idea of the significance of what she was being asked to do.
+In consequence, the long edge of the not good cards were oriented in a different way from the long edge of the good cards.
+This procedure was followed for each game of Punto Banco until the shoe was finished.
+Mr Ivey then indicated that he had won with that shoe and so the cards were reshuffled.
+The use of a machine shuffler ensured that the cards were shuffled without rotating any of the cards.
+Mr Ivey could now identify high value cards and his betting accuracy increased sharply.
+Mr Iveys total winnings over the two days was 7.7m.
+Nine days after play, Crockfords told Mr Ivey they would not pay his winnings because the game had been compromised.
+The High Court held that Mr Iveys use of edge sorting was cheating.
+The Court of Appeal upheld this finding.
+The Supreme Court unanimously dismisses the appeal.
+Lord Hughes gives the judgment, with which Lord Neuberger, Lady Hale, Lord Kerr and Lord Thomas agree.
+It was common ground that the parties contract for betting contained an implied term that neither of them will cheat. [35] It would be unwise to attempt a definition of cheating.
+Its essentials normally involve a deliberate act designed to gain an advantage in the play which is objectively improper given the parameters and rules of the game in question.
+What amounts to cheating is a jury question.
+Dishonesty is not a concept that would bring clarity or certainty to a jurys assessment of whether certain behaviour is or is not cheating. [47 48] It is an essential element of Punto Banco that it is a game of pure chance.
+Mr Ivey staged a carefully planned and executed sting.
+If he had secretly gained access to the shoe of cards and personally re arranged them that would be considered cheating.
+He accomplished the same results by directing the actions of the croupier and tricking her into thinking that what she did was irrelevant.
+Mr Iveys actions were positive steps to fix the deck and therefore constituted cheating. [50] Dishonesty is included in the definition of some but not all acquisitive criminal offences. [52] R v Ghosh [1982] EWCA Crim 2 introduced a two stage test for dishonesty for a jury to apply, with a subjective second leg.
+Firstly, the jury must ask whether in its judgment the conduct complained of was dishonest by the lay objective standards of ordinary reasonable and honest people.
+If the answer is no, that disposes of the case in favour of the defendant.
+But if the answer is yes, it must ask, secondly, whether the defendant must have realised that ordinary honest people would so regard his behaviour as dishonest, and he is to be convicted only if the answer to that second question is yes.
+However, the second leg of the rule adopted in Ghosh has serious problems.
+The principal objection is that the less a defendants standards conform to societys expectations, the less likely they are to be held criminally responsible for their behaviour.
+The law should not excuse those who make a mistake about contemporary standards of honesty, a purpose of the criminal law is to set acceptable standards of behaviour. [54, 57 59] In civil actions the law has settled on an objective test of dishonesty.
+There can be no logical or principled basis for the meaning of dishonesty to differ according to whether it arises in a civil action or a criminal prosecution. [62 63] The second leg of the test propounded in Ghosh does not correctly represent the law and directions based upon it ought no longer to be given.
+The test of dishonesty is that used in civil actions.
+The fact finding tribunal must ascertain (subjectively) the actual state of the individuals knowledge or belief as to the facts and then determine whether his conduct was honest or dishonest by the (objective) standards of ordinary decent people.
+There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest. [74] If cheating at gambling required an additional legal element of dishonesty, it would be satisfied in this case. [75]
diff --git a/UK-Abs/test-data/summary/full/uksc-2017-0006.txt b/UK-Abs/test-data/summary/full/uksc-2017-0006.txt
new file mode 100644
index 0000000000000000000000000000000000000000..7502b5e8bb7610fb4495f023b50040b38796d153
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2017-0006.txt
@@ -0,0 +1,32 @@
+This is an interlocutory appeal in a criminal case in which the appellants are defendants indicted for offences of unauthorised use of trademarks, contrary to section 92(1) of the Trade Marks Act 1994 (the 1994 Act).
+An offence is committed under that section where a person does any of the following three things (with the intent to gain or to cause loss, and without the consent of the trademark proprietor): (a) applies to goods a sign identical to, or likely to be mistaken for, a registered trade mark, (b) sells goods which bear such a sign, or (c) possesses in the course of a business any such goods with a view to committing an offence under (b).
+The allegations against the appellants (which have yet to be proved) are that they are engaged in the bulk import and subsequent sale of goods bearing registered trademarks, manufactured abroad, in countries outside the EU.
+A significant portion of the goods said to be sold by the appellants were manufactured (and the trademark applied) with the permission of the trademark proprietor, but were then sold without the trademark proprietors consent (for example because the goods were in excess of the numbers or below the quality permitted by the trademark proprietor).
+The appellant describes these as grey market goods and distinguishes them from true counterfeits manufactured without the authorisation of the trademark proprietor.
+At a preparatory hearing in the Crown Court, the appellants argued that while the sale of grey goods attracts civil liability, it is not covered by the offence in s.92(1), which properly construed applies only to true counterfeits.
+The appellants argued that such a sign in subsection (1)(b) refers back to (1)(a), so that 1(b) applies only to goods where the trademark has been applied without the consent of the proprietor.
+Any goods in the grey market category have had the trademark originally applied with the consent of the proprietor.
+It is only the sale which the proprietor has not authorised.
+It follows, they contend, that they are not, when it comes to paragraph (b), goods which bear such a sign.
+Both the trial judge and the Court of Appeal (Criminal Division) rejected that submission.
+The Supreme Court unanimously dismisses the appeals.
+Lord Hughes gives the lead judgment, with which the rest of the Court agrees.
+So called grey market goods are caught by the criminal offence in s.92(1), and the appellants contended construction of that section must be rejected.
+The plain reading of such a sign in (1)(b) is that it refers back to the sign mentioned in (1)(a) i.e. a sign which is identical to, or likely to be mistaken for, a registered trade mark. 1(b) therefore covers the unauthorised sale of any
+goods bearing a trademark (regardless of whether the trademark was applied to the goods in their manufacture with consent or not).
+But this reference back to (1)(a) does not also incorporate into the meaning of such a sign the commission of an offence under (1)(a), i.e. the requirement that the sign has been applied without the consent of the proprietor.
+Such a reading of (1)(b) is strained and unnatural and requires one to read such sign as such a sign, so applied.
+The offences set out in (a), (b) and (c) are not cumulative, but separate, and the requirement in the opening lines of s.92(1) that the use made of the sign is without the consent of the proprietor applies to each type of use specified whether it is the application of a trademark to goods, the sale of goods bearing a trademark, or the possession for sale of goods bearing a trademark. [8 12] The predecessor of section 92, section 58A of the Trademarks Act 1938, also plainly covered grey market goods.
+The appellants contention therefore that the more stringent test for intention in s.58A had the practical effect of confining criminal liability to cases of their category of true counterfeits must be rejected. [16 17] There is therefore no ambiguity in the language of the section to justify investigating the Parliamentary debate at the passing of the 1994 Act.
+In any event, the appellants did not contend that Parliament considered a difference between true counterfeits and grey market goods.
+Still less is there any point at which it can be suggested that Parliament plainly confined itself to criminalising fake goods and abjured the criminalising of grey market goods.
+The authorities relied on by the appellants in support of their contention that such a distinction was plainly intended do not assist here, as they were not addressing any difference between fake goods and unauthorised goods on the grey market, and moreover came years after the passage of the 1994 Act so could not have been in mind at the time of its passing. [13 14] The appellants are correct that in the context of goods which a proprietor voluntarily puts into the European single market with his trademark attached, section 12 of the 1994 Act, transposing article 7 of Directive 89/104/EEC, has the effect that further objection to the use of the mark is limited to special cases, such as changes or impairments to the goods.
+But that is true whichever of the rival constructions of section 92 is correct.
+Where it applies, this concept of exhaustion means that there is no infringement of the mark as a matter of civil law, and thus no criminal offence.
+But this sheds no light on the correct construction of section 92. [15] There is no reason to strain the construction of s.92(1) to exclude the sale of grey market goods.
+This is not because of the supposedly adverse consequences which the Crown argued would follow, some of which would be as likely to ensue even on the correct interpretation of the section.
+The distinction between the two categories suggested by the appellant is not cut and dried, but both are clear infringements of the rights of the trademark proprietor.
+The plain meaning of the Act is that it is unlawful to put grey goods on the market just as it is to put fake ones on there.
+In both cases the trader is setting out to profit from someone elses trademark without permission. [18] In the alternative, the appellants contend that the Crowns construction of section 92(1) involves a disproportionate breach of their rights under article 1, Protocol 1 to the European Convention on Human Rights.
+But the 1994 Act does not deprive them of their property, as it does not stop them selling the goods, except if they wish to do so whilst still with the misleading and infringing trademark attached.
+Such regulation of use or disposal of goods is permitted under the second paragraph of article 1 in the general interest, and is in any event a proportionate measure, striking a legitimate balance between the rights of the proprietor to protect his valuable trademark, and those of the person who wishes to sell good which he has bought. [19]
diff --git a/UK-Abs/test-data/summary/full/uksc-2017-0031.txt b/UK-Abs/test-data/summary/full/uksc-2017-0031.txt
new file mode 100644
index 0000000000000000000000000000000000000000..32a1b487c5627df3f7fb897ff818c3b1d68ba29b
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2017-0031.txt
@@ -0,0 +1,32 @@
+An EU citizen with a permanent right of residence in a host member state may have that right removed in the case of abuse of rights or fraud, such as marriages of convenience.
+The issue in this appeal is which party bears the burden of proof of establishing that a proposed marriage is one of convenience.
+Ms Sadovska is a citizen of Lithuania.
+She moved to the United Kingdom in 2007 and has lived and worked here lawfully since, acquiring a right of permanent residence as an EU citizen pursuant to Directive 2004/38/EC (the Directive).
+Mr Malik is a citizen of Pakistan who entered the UK with a student visa in May 2011 and has remained here unlawfully after his visas expiry in April 2013, in breach of section 10(1)(a) Immigration and Asylum Act 1999.
+Ms Sadovska and Mr Malik (the appellants) maintain that they have been in a relationship with each other since February 2013, and decided to marry in January 2014.
+On 11 April 2014, the appellants solicitors notified the Home Office in Glasgow that they intended to marry on 17 April 2014 at Leith Registry Office and invited officials to interview them before the wedding.
+Immigration officers arrived at the Registrars Office, interviewed the appellants separately, and then detained them before they were able to marry.
+Both were then served with notice that they were persons liable to removal from the UK: Mr Malik by having stayed after the expiry of his visa and Ms Sadovska by giving the Secretary of State reasonable grounds to suspect the abuse of her EU right of residence by attempting to enter into a marriage of convenience, contrary to regulation 19(3)(c) Immigration (European Economic Area) Regulations 2006.
+The appellants appealed to the First tier Tribunal.
+The judge held that the burden of proof was on the appellants to establish that their proposed marriage was not a marriage of convenience, and that they had failed to do this, having regard to the inconsistencies in their accounts at interview.
+The appellants appealed unsuccessfully to the Upper Tribunal and to the First Division of the Inner House, arguing that the tribunal had adopted the wrong approach to the burden of proof, and that the Secretary of State had failed to prove that the appellants were guilty of fraud, when the totality of the evidence relating to their relationship and the circumstances in which the interviews had taken place was taken into account.
+The Supreme Court unanimously allows the appeal and remits the case for a full re hearing by the First tier Tribunal.
+Lady Hale gives the only substantive judgment.
+It was important to identify the different rights the appellants individually enjoyed, and thus what the Secretary of State needed to establish in order to remove them: Ms Sadovska had a right of permanent residence in the UK and could not be expelled unless she had abused her rights within the meaning of article 35 of the Directive.
+A Communication in 2014 from the European Commission giving guidance on the Directive explained that a marriage of convenience was a marriage contracted with the predominant purpose of enjoying the right of free movement.
+It was not enough that the marriage might bring incidental immigration and other benefits, and the predominant purpose must be the purpose of both parties [21 24, 29].
+Mr Malik was liable to be removed as an over stayer.
+Had he succeeded in marrying Ms Sadovska he would have acquired a right of residence in the UK under the Directive as a family member of an EU national working here.
+The Directive also required member states to facilitate the entry and residence of the partner of an EU citizen if it was a durable relationship, duly attested [25 26].
+Both appellants enjoyed rights under articles 8 and 12 of the European Convention on Human Rights to a private and family life, and to marry and found a family [27].
+The 2006 Regulations permitted the Secretary of State to take steps to remove Ms Sadovska on the basis of reasonable grounds to suspect that she had entered or attempted to enter a marriage of convenience, but she was entitled to an appeal where the facts and circumstances were fully investigated.
+The tribunal had to form its own view of the facts from the evidence presented.
+It was not for her to establish that her relationship with Mr Malik was a genuine and lasting one, but for the Secretary of State to establish that it fell within the definition of a marriage of convenience [28].
+The tribunal had also to be satisfied that the removal of Ms Sadovska from the country where she had lived and worked for so long with other family members would be a proportionate response to the abuse of rights, rather than merely the prevention of the marriage [30].
+As the tribunal had not analysed Ms Sadovskas rights this way, it was not possible for the Supreme Court to conclude that the Secretary of State had proved that the narrow grounds for taking away her established rights existed [31].
+Mr Malik had no established rights but if he could produce evidence of a durable relationship with Ms Sadovska, it would be for the Secretary of State to show that it was not, or that there were other good reasons to deny him entry.
+Again, the Supreme Court could not conclude that, had his case been approached in the right way, the outcome would have inevitably been the same [32 33].
+Accordingly, the burden of proof of establishing that the proposed marriage is one of convenience falls on the Secretary of State.
+The appeal is allowed and the case remitted for a full rehearing by the First tier Tribunal, at which the inconsistencies in the appellants interviews will be considered along with their evidence supportive of a genuine relationship dating back several months, and the circumstances in which the interviews took place will also be taken into account [34].
+The appellants ECHR rights did not add anything further to their claims in the light of this conclusion.
+Such rights would not in any event prevent a state from taking steps to prevent sham marriages, if it could show that the marriage would indeed be a sham [35].
diff --git a/UK-Abs/test-data/summary/full/uksc-2017-0040.txt b/UK-Abs/test-data/summary/full/uksc-2017-0040.txt
new file mode 100644
index 0000000000000000000000000000000000000000..41c73cbf0bf3257a0611fc45f5fbb161baa746b1
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2017-0040.txt
@@ -0,0 +1,28 @@
+The Appellant and Respondent are former husband and wife.
+They divorced in 2002 after a marriage of approximately fifteen years, and the financial issues in the divorce were resolved by way of a consent order.
+Under the terms of that order the wife received 230,000 in settlement of her capital claims against the husband, and it was also agreed that the husband would make periodical payments to her at an annual rate of 13,200.
+It was reasonably anticipated by the husband that the wife would use the 230,000 to purchase a suitable home for herself and their son without a mortgage, as the wife had been suffering from ill health which made it difficult for her to work.
+In the event, however, the wife did manage to take out a mortgage, and she duly purchased a more expensive home for 345,000.
+Between 2002 and 2009 the wife sold and purchased a series of different properties, and with each purchase the amount which she borrowed increased.
+In addition, she did not necessarily reinvest all of the sale proceeds from one property into the next and seemingly spent the balance, with the result that the amount of capital she had decreased over time.
+Eventually, in 2009 the wife sold her final property and began to rent accommodation.
+By April 2015, when the first instance judge heard the case, the wife had no capital, and she had debts of around 42,000.
+The hearing before the judge was to determine two cross applications made under s.31(1) of the Matrimonial Causes Act 1973.
+The husband had applied for the discharge or downwards variation of the order for periodical payments, whereas the wife had applied for the order for periodical payments to be varied upwards.
+In determining the applications the judge noted that there was a shortfall of 4,092 per annum between the wifes current needs and, when coupled with her own earnings, the existing level of the periodical payments.
+However, he also held that, although the wifes actions had not been profligate, she had not managed her finances wisely and her current financial needs, in particular her need to pay rent, had been increased by the choices which she had made.
+Consequently, the judge considered that it would be unfair to the husband if he had to make a full contribution to the wifes rental costs.
+The judge therefore declined to vary the order for periodical payments either upwards or downwards.
+This meant that the husband would continue to contribute to around 60% of the wifes rental costs, and the wife would have to adjust her expenditure to accommodate the shortfall.
+The wife appealed against this decision to the Court of Appeal, and was successful.
+The Court of Appeal considered that the judge had not given sufficient reasons why all of the wifes basic needs should not be met by the periodical payments from the husband, and increased the level of periodical payments to cover her shortfall, i.e. to 17,292.
+The husband now appeals against this decision to the Supreme Court.
+The Supreme Court unanimously allows the appeal, concluding that the judge was entitled to decline to vary the order for periodical payments so as to require the husband to pay all of the wifes rental costs.
+Lord Wilson gives the judgment with which Lady Hale, Lord Carnwath, Lord Hughes and Lord Hodge agree.
+The husband was granted permission to appeal to the Supreme Court only on a single ground whether, in light of the fact that provision had already been made for the wifes housing needs in the capital settlement, the Court of Appeal was entitled to interfere with the judges decision not to increase the periodical payments so as to cover all of the wifes current rental costs [32].
+The Court of Appeal had erred in saying that the judge had given no reason for declining to increase the order for periodical payments the judge had given a clear reason, namely that the wifes unwise decisions in relation to her capital had increased her basic needs by requiring her to pay rent, and that it was consequently unfair to expect the husband to meet these increased needs in full [33].
+The Court of Appeal should have considered the impact of the original capital payment on the wifes current need to pay rent, and this involved a consideration of three earlier Court of Appeal authorities: Pearce v Pearce [2003] EWCA Civ 1054, North v North [2007] EWCA Civ 760, and Yates v Yates [2012] EWCA Civ 532 [34 38].
+These cases were correctly decided and in light of this the judge was entitled, although not obliged, to decline to require the husband to fund payment of the rent in full.
+This respects the wide discretion conferred upon the court under section 31(1) and (7) of the Matrimonial Causes Act 1973 in determining an application for variation of an order for periodical payments.
+Moreover, a court would need to give very good reasons for requiring a spouse to fund payment of the other spouses rent in the circumstances of this case.
+A spouse may well be obliged to make provision for the other spouse, but an obligation to duplicate that provision in situations such as this is improbable [40].
diff --git a/UK-Abs/test-data/summary/full/uksc-2017-0073.txt b/UK-Abs/test-data/summary/full/uksc-2017-0073.txt
new file mode 100644
index 0000000000000000000000000000000000000000..c3bec6a7d84c4a7e18a86bd6c3c242d94420236f
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2017-0073.txt
@@ -0,0 +1,32 @@
+Nottingham City Council, the appellant, is the licensing authority for houses in multiple occupation (HMOs) in its area under Part 2 of the Housing Act 2004 (2004 Act).
+This appeal concerns two HMOs, 44, Rothesay Avenue and 50, Bute Avenue which are owned by the second respondent, Trevor Parr Associates Ltd. The first respondent, Dominic Parr, is the managing director of the second respondent and the manager of the two HMOs.
+The 2004 Act requires HMOs to be licensed by the local housing authority.
+The local housing authority can grant the application under section 64 of the 2004 Act if it is satisfied that, among other requirements, the house is reasonably suitable for occupation by not more than the maximum number of households or persons [specified in the application or decided by the authority] or that it can be made so suitable by the imposition of conditions under section 67 [of the 2004 Act].
+The appellant issued guidance on the operation of the licensing system, which provides that the minimum space provision in the case of bedrooms in single occupation in HMOs is eight square metres, although a degree of flexibility is sometimes possible if other features are present. 44, Rothesay Avenue and 50, Bute Avenue are both used for letting to students and each has an attic bedroom with an area of useable living space below eight square metres.
+In each case, the appellant granted an HMO licence which imposed a condition prohibiting the use of the attic bedroom for sleeping.
+The respondents appealed to the First tier Tribunal against the imposition of the conditions.
+The First tier Tribunal at separate hearings deleted the conditions imposed by the appellant.
+In the case of 44, Rothesay Avenue it substituted a condition that the attic bedroom may only be used for sleeping accommodation by a full time student who resides in the bedroom for a maximum of ten months in each year.
+The appellant appealed both decisions to the Upper Tribunal, which dismissed the appeals and also directed that the substituted condition be included in the HMO licence for 50, Bute Avenue.
+The appellant then appealed to the Court of Appeal, which upheld the decision of the Upper Tribunal and included further conditions in both HMO licences that the communal space be kept available for communal living only and that no bedrooms be let to persons other than full time students.
+The appellant appealed to the Supreme Court contending that the power to impose conditions under sections 64 and 67 of the 2004 Act cannot be used to limit the class of persons for whom the HMO is suitable, and that the conditions imposed by the First tier Tribunal, Upper Tribunal and the Court of Appeal are irrational and unenforceable.
+The Supreme Court unanimously dismisses the appeal, subject to varying the conditions to delete the requirement of occupation for a maximum of ten months in each year.
+Lord Lloyd Jones gives the sole judgment with which the other Justices agree.
+Section 64(3)(a) of the 2004 Act indicates that the purpose of the imposition of conditions is to make a house reasonably suitable for occupation by not more than the maximum number of households or persons specified in the application or decided by the housing authority.
+Section 67(1)(a) provides that a licence may include such conditions as the local housing authority considers appropriate for regulating all or any of the management, use and occupation of the house concerned, and section 67(2) sets out a non exhaustive list of permitted conditions including conditions imposing restrictions or prohibitions on the use or occupation of particular parts of the house by persons occupying it [18].
+These words in their natural meaning are sufficiently wide to include the conditions imposed by the Tribunals and the Court of Appeal [18].
+Such a reading is also consistent with the object and purpose of the 2004 Act.
+Elsewhere in Part 2 of the 2004 Act, the manner of occupation and characteristics of occupants are considered relevant in contexts connected with HMOs and housing standards generally [20].
+The guidance in respect of the 2004 Act also supports the view that the manner of occupation of a room and the type of occupant may have a bearing on the suitability of a particular room for a particular use [23].
+The Court does not consider that the conditions in issue introduce an exception for a category of persons or a defined set of circumstances [24].
+Furthermore, they do not permit occupation at a lower standard [25].
+It is therefore appropriate to have regard to the proposed mode of occupation in considering the suitability of accommodation in an HMO [26].
+In particular, account should be taken of the proposed mode of occupation where it is likely to influence the quality of the accommodation made available to the occupant.
+However, this does not permit the application of lower standards than would otherwise be applicable [26].
+Thus, the power to impose conditions under sections 64 and 67 of the 2004 Act can be used to limit the class of persons for whom the HMO is suitable [27].
+The Court agrees with the Court of Appeal that the conditions imposed by the Tribunals were deficient in that they failed to require any part of the HMO to be available for communal living and did not require the bedrooms other than the attic bedrooms to be let to students.
+That deficiency was, however, cured by the further conditions introduced by the Court of Appeal [33].
+The condition limiting the occupation to persons engaged in full time education is rational [35] and enforceable [37].
+The Court considers, however, that the requirement limiting occupation to ten months in each year is irrational [36].
+Therefore, subject to the deletion of the requirement of occupation for a maximum of ten months in each year, the conditions imposed by the Tribunals and the Court of Appeal in each case, considered cumulatively, were entirely lawful.
+Accordingly, the Supreme Court varies the conditions to delete the requirement of occupation for a maximum of ten months in each year but otherwise dismisses the appeal [38].
diff --git a/UK-Abs/test-data/summary/full/uksc-2017-0075.txt b/UK-Abs/test-data/summary/full/uksc-2017-0075.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e07f6fa708b3418a71e0996f8b73486f5ab7a40f
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2017-0075.txt
@@ -0,0 +1,41 @@
+Ms Rhuppiah, a Tanzanian national, entered the UK in 1997 with leave to reside here as a student for three months.
+The Home Secretary granted further leave to her to reside in the UK as a student on 12 occasions, but some of these applications for leave were made after the previous leave had expired.
+While they were studying at the same college, Ms Rhuppiah met Ms Charles, who suffers from ulcerative colitis, a gravely debilitating condition.
+They have resided together since 2001.
+Ms Rhuppiah cooks food suitable for Ms Charless medical condition and accompanies her to Bristol, to hospital and in effect everywhere.
+Instead of paying her for looking after her in these respects, Ms Charles provides her with largely free board and lodging.
+Ms Rhuppiah, a Seventh Day Adventist, cares for Ms Charles out of friendship, faith and habit.
+Were Ms Rhuppiah to leave the UK, Ms Charless health would be compromised, her life turned upside down, and she would have to turn to the state for care.
+After her final grant of leave expired in November 2009, Ms Rhuppiah twice failed to secure indefinite leave to remain in the UK, first because her residence here over the past ten years had not always been lawful, and second because she applied on the wrong form and by the time she reapplied the Immigration Rules, HC395 (the rules) had changed, fatally for her reapplication.
+The Home Secretary was then obliged to determine whether her reapplication could nevertheless succeed outside the rules, on the basis of her right to respect for the private life she had established in the UK, including her friendship with Ms Charles, under article 8 of the European Convention on Human Rights.
+The Home Secretarys determination on this basis was also negative.
+Ms Rhuppiah challenged the Home Secretarys decision at the First tier Tribunal (FTT).
+Under section 117B(5) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act), little weight should be given to an applicants private life if it was established in the UK at a time when his or her immigration status was precarious.
+The FTT dismissed Ms Rhuppiahs challenge on the basis that this provision applied to her; and that, besides, she was not financially independent (another consideration, which section 117B(3) of the 2002 Act required the Home Secretary to weigh against her right to respect for her private life) as she depended on support from her father and from Ms Charles.
+Ms Rhuppiah appealed unsuccessfully to the Upper Tribunal and the Court of Appeal.
+Her appeal has now become academic, because she has now lived continuously in the UK for long enough to secure leave to remain by a different route.
+The Supreme Court nevertheless heard the appeal, because of the public importance of providing a definitive interpretation of the word precarious in section 117B(5).
+The Supreme Court unanimously allows the appeal.
+Lord Wilson gives the only judgment.
+Section 6 of the Human Rights Act 1998 requires the Home Secretary to act compatibly with the rights contained in the European Convention on Human Rights, including the right under article 8 to respect for private and family life.
+Removing an applicant from the UK may interfere with this right.
+Therefore, if the Home Secretary refuses a persons application for leave to remain in the UK under the rules, he must nevertheless consider whether to grant leave on the basis of their right under article 8.
+Article 8 gives him a limited discretion to determine whether the interference is justified [4].
+Section 117A(2) of the 2002 Act prompts decision makers exercising this discretion to have regard to the public interest considerations in section 117B, which include: the maintenance of effective immigration controls; that persons in the UK can speak English and are financially independent; and that little weight should be given to a private life established by a person at a time when they are in the UK unlawfully or when the persons immigration status is precarious [20 21].
+A persons immigration status in the UK can therefore be precarious even when he or she is lawfully present here [24].
+Equally, the concept of little weight and the wording of section 117A(2) give decision makers a limited degree of flexibility to uphold an article 8 claim on the basis of the applicants right to respect for private life, even if it was established when the applicants immigration status was precarious [49].
+The Court of Appeal accepted that Ms Rhuppiahs own immigration status was precarious, but suggested that some immigrants could have an immigration status which was not precarious even though they did not have indefinite leave to remain in the UK.
+It added that the concept of precariousness might fall to be applied having regard to the persons overall circumstances.
+The Supreme Court holds that the application of the concept of precariousness does not depend on such a subtle evaluation of the overall circumstances as suggested by the Court of Appeal [25, 42].
+The European Court of Human Rights (ECtHR) has approached the concept of precariousness in the context of the right to family life by asking whether the family life was created at a time when the parties knew that the immigration status of one of them made its persistence in the host state precarious from the outset [28].
+Therefore, it distinguished the situation of an applicant who (though not present unlawfully) was no more than tolerated by the host state while it determined her various applications for residence permits and consequential appeals, from that of settled migrants who had formally been granted a right of residence.
+The Supreme Court has previously addressed this ECtHR decision, suggesting that family life will be precarious if created when an applicant was here unlawfully or had only a temporary right to remain in the UK [34 45].
+Section 117B imports the concept of precariousness from the ECtHR case law.
+But the section only applies to an applicants private life [37].
+In a case not cited to the Court of Appeal, the Upper Tribunal previously held that a persons immigration status was precarious for the purpose of section 117B(5) if his continued presence in the UK would be dependent upon a further grant of leave [38 39].
+The Supreme Court now approves this decision.
+Everyone who, not being a UK citizen, is present in the UK and who has leave to reside here other than to do so indefinitely, has a precarious immigration status for the purposes of section 117B(5) [44].
+This bright line interpretation is consistent with the ECtHR and Supreme Courts language in the decisions referred to above [43].
+The FTT nonetheless erred in concluding that Ms Rhuppiah was not financially independent within the meaning of section 117B(3).
+The Supreme Court holds that financially independent in section 117B(3) means not financially dependent upon the state.
+It therefore allows Ms Rhuppiahs appeal [52 58].
diff --git a/UK-Abs/test-data/summary/full/uksc-2017-0083.txt b/UK-Abs/test-data/summary/full/uksc-2017-0083.txt
new file mode 100644
index 0000000000000000000000000000000000000000..6513b2f6b391c5ab58d5e68dc5c3e5445c2106d9
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2017-0083.txt
@@ -0,0 +1,48 @@
+Broome Park is a substantial country estate near Canterbury.
+It originally included the Mansion House, Elham House and surrounding lands.
+In 1967, Elham House and adjoining land were conveyed away.
+This is the alleged dominant tenement of the disputed easement.
+The seller retained the rest of Broome Park, including the Mansion House (jointly the Park).
+This is the alleged servient tenement.
+In or before 1979, the Park was acquired by Gulf Investments Ltd (Gulf Investments) to develop a timeshare and leisure complex.
+The key features were the creation of: (i) timeshare apartments in the Mansion House; (ii) a communal club house for the timeshare owners and other paying members of the public in the Mansion House, including restaurant, TV, billiards and gymnasium facilities; and (iii) sporting and recreational facilities in the surrounding grounds, including a full golf course, outdoor heated swimming pool, tennis and squash courts and formal gardens.
+The individual purchasers of timeshare units formed the Broome Park Owners Club (BPOC).
+They were indirectly granted free use of the communal and leisure facilities within the lower part of the Mansion House and its surrounding grounds by a lease to another Gulf company in August 1980.
+Following the initial success of the development, Elham House was re acquired in November 1980.
+Planning permission was obtained for the conversion and construction of 26 timeshare apartments using a freehold structure Regency Villas.
+By a transfer dated 11 November 1981, Gulf Investments transferred Elham House to an associated company (the 1981 Transfer).
+A further transfer took place on the following day, to a trustee for intended timeshare owners.
+Elham House was then held for the benefit of the Regency Villas Owners Club (RVOC) members.
+The grant of rights in the 1981 Transfer (the Facilities Grant) stated: the Transferee its successors in title its lessees and the occupiers from time to time of the property to use the swimming pool, golf course, squash courts, tennis courts, the ground and basement floors of the sporting or recreational facilities on the Transferors adjoining estate.
+Most of the relevant sporting and recreational facilities had been constructed by then.
+Subsequently, there was a reduction in the number of available facilities and a concern that they would deteriorate without contributions from the RVOC members.
+The swimming pool fell into disuse and was filled in by 2000.
+Other facilities, such as the putting green, croquet lawn, jacuzzi and roller skating rink, were closed and the riding stables were demolished.
+Further, from time to time, beginning in about 1983, the RVOC made voluntary contributions towards the cost of the facilities.
+When agreement about contributions broke down, the new owners of Broome Park denied that the RVOC timeshare owners had any enforceable rights as to the leisure complex, so that they could be charged for their use.
+The First Respondent (as freehold owner of Elham House) and the other Respondents (as individual RVOC timeshare members) claimed a declaration that they were entitled, under an easement, to free use of all the sporting and recreational facilities from time to time provided within the Park.
+They also sought an injunction restraining interference with their use of the facilities, and the return of sums paid for the use of the facilities since 2009, as damages for breach of the easement or by way of restitution.
+At trial before HHJ Purle QC, the Respondents succeeded in their claims, save recovery of payments for use of the facilities before 2012.
+In the Court of Appeal, they were again successful on the main issue about whether the Facilities Grant amounted to a grant of an easement.
+The judges decision was only reversed on matters of detail, such as the Respondents rights regarding a new swimming pool constructed in the basement of the Mansion House, which reduced the amount due.
+The Appellants succeeded in part in their counterclaim for quantum meruit.
+In the Supreme Court, the Appellants sought dismissal of all the claims and the Respondents sought restoration of the judges original order.
+A majority of the Supreme Court dismisses the appeal and allows the cross appeal.
+The judges consequential orders, including his order for monetary compensation for the payment under protest for use of the facilities in and after 2012, are restored.
+Lord Briggs, with whom Lady Hale, Lord Kerr and Lord Sumption agree, gives the main judgment.
+Lord Carnwath gives a dissenting judgment.
+Three main conclusions follow from the contextual factors relevant to construing the Facilities Grant [22 24].
+First, the intention was to confer a property right in the form of an easement [25].
+Secondly, the grant was of a single comprehensive right to use a complex of facilities as they evolved, not fixed in 1981 [26 29].
+Thirdly, there is no express requirement for contribution to the operational costs [30].
+The effect of In re Ellenborough Park [1956] Ch 131 (CA) the leading case on easements on the central question in this appeal, namely whether the Facilities Grant could not amount to an easement because it conferred recreational and sporting rights, is fully discussed [44 57].
+Lord Briggs concludes that Ellenborough Park establishes that such a grant can amount to an easement [48, 52 53, 59].
+Overall, the majority accepts that the grant of an easement in this case was novel, given the greater running costs and operational responsibilities, and that there are factors which tell against broad recognition of rights over such facilities as easements [75] [80].
+Ultimately, however, the grant of purely recreational (including sporting) rights over land which genuinely accommodate adjacent land may be the subject matter of an easement, provided always that they satisfy the four well settled conditions for easements [81].
+Where the actual or intended use of the dominant tenement is itself recreational, as is the norm for holiday timeshare developments, the accommodation condition will generally be satisfied by a recreational easement [81].
+Regarding the fourth condition whether the right is capable of forming the subject matter of a grant other objections based on an ouster (the concern in this case being step in rights of the dominant owner) and mere passivity (the issue being alleged positive duties on the servient owner) are not accepted by the majority, because of concurrent factual findings by the courts below [60 73].
+On the cross appeal, the majority holds that the Court of Appeal was wrong to limit the grant of rights to the facilities in existence at the time of the grant in 1981 [85, 92].
+The sporting and recreational facilities referred to in the Facilities Grant were bound to change significantly over time [26, 86] and the new indoor swimming pool was, once complete, a facility made within the complex [88 92].
+Lord Carnwaths dissenting judgment: Lord Carnwath considers that the intended enjoyment of the rights granted in this case, particularly as to the golf course and swimming pool, cannot be achieved without the active participation of the owner of those facilities in their provision, maintenance and management [95].
+Thus, Lord Carnwath would not extend the Ellenborough Park principle to a full leisure complex.
+He considers that such an extension of the law on easements is wrong in principle and not supported by case law [96].
diff --git a/UK-Abs/test-data/summary/full/uksc-2017-0096.txt b/UK-Abs/test-data/summary/full/uksc-2017-0096.txt
new file mode 100644
index 0000000000000000000000000000000000000000..ecd3fe3e1525bfe86a8ddf2449105bc1d3558a8e
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2017-0096.txt
@@ -0,0 +1,35 @@
+Mr Holden accidentally set fire to his car while repairing it at the premises of his employer, Phoenix Engineering.
+The fire caused 2 million of damage to Phoenix and its neighbours premises.
+Phoenixs insurer (Axa) paid out and has agreed not to pursue Mr Holden personally for the money, but only his car insurance provider (Churchill).
+Axa says that Mr Holden is covered by his car insurance policy's third party liability cover but Churchill says he is not.
+Clause 1a of the policy says we will cover you for your legal responsibility if you have an accident in your vehicle and: you kill or injure someone; [or] you damage their property .
+As required by law, the policy also includes a certificate that it satisfies the requirements of relevant legislation, which includes the Road Traffic Act 1988 (RTA).
+Under the RTA, car insurance policies must provide cover in respect of any liability incurred in respect of damage to property caused by, or arising out of, the use of the vehicle on a road or other public place.
+The High Court held that the policy did not cover Mr Holden's accident because it had arisen out of the negligent way in which it was being repaired and not out of the use of the car.
+The Court of Appeal (CA) allowed his appeal.
+It held that the wording of clause 1a was inadequate and had to be read with the certificate that the policy provided the cover required by law.
+As the policy had no geographical limitations, no such limitations were to be imposed in extending its cover to meet the statutory requirements.
+It accordingly construed the opening words of clause 1a to mean we will cover you for your legal responsibility if there is an accident involving your vehicle.
+The Supreme Court unanimously allows the appeal.
+Lord Hodge gives the only judgment.
+Having regard to the statutory requirements and the terms of the certificate, which disclose the insurers intention, the policy must be construed so that the third party cover meets the requirements of the RTA [24].
+As the certificate did not purport to provide any additional cover in itself, and because the relevant legislation treats a certificate of insurance as distinct from a policy, it is therefore necessary to read words into clause 1a.
+However, the CA went too far by doing so in such a way as to extend cover to any accident involving Mr Holden's vehicle [25 31].
+The first step is to ask what caused by, or arising out of, the use of the vehicle on a road or other public place means.
+In English case law, the statutory word use has been interpreted broadly to cover any situation where the owner has an element of control, management or operation of the vehicle on the road or in a public place.
+The reason is that even a parked car may be a hazard on a road or in such a place [32 34].
+The words caused by, or arising out of the use of further extend the required cover, but there must be a reasonable limit to the causal chain [42 45].
+The concept of use in EU law goes further, and is not confined to a road or other public place.
+It extends to any use of a vehicle as a means of transport.
+To comply with EU law, Parliament may need to reconsider the wording of the RTA.
+But the RTA cannot be read down to comply by excising the words on a road or other public place because this would go against the grain and thrust of the legislation.
+It is therefore the cover required by the RTA, not EU law, that must be read into the policy [35 41].
+Where the context and background of a contract drives the courts to the conclusion that something has gone wrong with the language used, it may adopt a corrective construction where it is clear what a reasonable person would have understood the parties to have meant [46 47].
+Here, the necessary correction is to extend the cover beyond what was expressly provided to that which the RTA requires, and no more [48 49].
+The CA erred in not adopting this approach: the formulation involving your vehicle expanded the cover significantly beyond both the express terms of the clause and the requirements of the RTA, by removing the statutory causal link between use of the vehicle on a road or other public place and the accident [50].
+Nor does the statutory rule that the interpretation most favourable to the consumer must prevail apply to a situation such as this, where the court is correcting a mistake in the language used and there is no doubt about the parties intended meaning [51].
+The appropriate corrective construction is therefore to read the clause as if it said we will cover you for your legal responsibility if you have an accident in your vehicle or if there is an accident caused by or arising out of your use of your vehicle on a road or other public place and [52].
+Mr Holden's accident does not fall within clause 1a as so interpreted.
+A vehicle being repaired on private property is not being used [53].
+Furthermore, although the attempted repairs may have arisen out of the use of the car, the property damage did not.
+It was Mr Holden's alleged negligence in carrying out the repairs, not the prior use of the car as a means of transport, that caused the relevant damage [54 55].
diff --git a/UK-Abs/test-data/summary/full/uksc-2017-0106.txt b/UK-Abs/test-data/summary/full/uksc-2017-0106.txt
new file mode 100644
index 0000000000000000000000000000000000000000..173ea518af80229c88c4743976dd26dc1cfff605
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2017-0106.txt
@@ -0,0 +1,64 @@
+Until 1960 Cyprus was a colony of the UK.
+In 1960, pursuant to the Cyprus Act, the Treaty concerning the Establishment of the Republic of Cyprus between the UK, Turkey Greece and Cyprus and an exchange of notes between the UK and Cyprus, Cyprus became an independent Republic.
+The territory of the new republic was composed of the island of Cyprus with the exception of two areas Akrotiri and Dhekelia which were retained under UK sovereignty as Sovereign Base Areas (SBAs) for the purposes of accommodating military bases.
+Article 40(1) of the United Nations Convention Relating to the Status of Refugees (1951) (the Convention) as modified by the Protocol Relating to the Status of Refugees (1967) (the Protocol) states that: any State may, at the time of signature, ratification or accession, declare that this Convention shall extend to all or any of the territories for the international relations of which it is responsible.
+On 24 October 1956, prior to Cypriot independence, the UK notified the UN Secretary General that, subject to certain reservations, the Convention would be extended to Cyprus.
+Post independence, Cyprus notified the Secretary General in 1963 that it had acceded to the Convention and in 1968 to the Protocol.
+No notification has ever been made by the UK specifically in relation to the SBAs post Cypriot independence.
+The Respondents are six refugees.
+In October 1998 they boarded a ship in Lebanon which was bound for Italy but which foundered off the coast of Cyprus.
+On 8 October 75 passengers including the respondents were airlifted to safety by RAF helicopters and brought to Akrotiri in south western Cyprus.
+In due course they were accepted as lawful refugees under the Convention by the SBA Administration, and permitted to remain.
+The SBA Administration sought to persuade the UK government to allow them to resettle in the UK but this was not acceptable to Ministers.
+Ever since then they have lived in disused and highly unsatisfactory service accommodation in the SBA, while continuing to press for their admission to the UK, on the basis that this is the only practicable way for the UK to discharge its obligations to them under the Refugee Convention.
+The arrival of the Respondents in the SBAs followed by further arrivals in 2000 and 2001 gave rise to arguments between the SBAs and Cyprus about which of them was to be responsible for the refugees and asylum seekers among them.
+These arguments were resolved for future arrivals on 20 February 2003 when the UK and Cyprus entered into a Memorandum of Understanding relating to illegal migrants and asylum seekers (the 2003 Memorandum).
+The agreement provided, in summary, for the full range of governmental services to be provided to refugees by Cyprus but at the expense of the UK.
+Shortly after the 2003 Memorandum, the SBA Administrator enacted the Refugee Ordinance 2003 which gave effect within the SBAs to rights substantially corresponding to those conferred by the Convention.
+The 2003 Memorandum did not apply to refugees such as the Respondents who had arrived in the SBAs prior to the date of its conclusion.
+The Appellants case is that in 2005 the Cypriot authorities agreed with the SBA Administration that they would deal with refugees recognised as such by the SBA Administration in accordance with the 2003 Memorandum irrespective of the date of their arrival in the SBAs.
+This agreement, however, has never been reduced to writing.
+The Respondents were unwilling for responsibility for them under the Convention to be transferred to the Republic, and did not accept that this could lawfully be done without their consent.
+They continued to press for admission to the UK, latterly with the support of the UN High Commissioner for Refugees (UNHCR).
+The unhappy course of the ensuing dispute is summarised in the judgment.
+It came to a head when in 2013, the Respondents formally asked to be admitted to the UK.
+In a decision dated 25 November 2014, the Secretary of State refused entry.
+The Respondents challenged that decision on the basis that it was inconsistent with the Convention.
+The High Court held that the Convention did not extend to the SBAs as a matter of international law, but quashed the Secretary of States decision on the basis that she had failed to take into account concerns raised by the UNHCR.
+The Court of Appeal overturned that decision, declared that the Convention did extend to the SBAs and directed the Secretary of State to make a fresh decision on whether to admit the Respondents to the UK, having regard to the UKs obligations under the Convention.
+On 6 July 2017, the Secretary of State made a fresh decision refusing to admit the Respondents on the basis that she considered that they could resettle in the Cyprus or, alternatively that the UK could comply with its obligations by arranging for the Respondents to be supported by Cyprus as agreed in 2005.
+The broad question at issue in the appeal is whether the Respondents are entitled or should be permitted to be resettled in the UK on the basis of the Convention or that in the exceptional circumstances of the case the Secretary of State should exercise his discretion to admit them.
+The specific issues identified by the Court as essential to the resolution of the appeal are as follows [60]: (i) Does the Convention (as extended by the 1967 Protocol) apply to the SBAs? (ii) Does the Convention by its terms entitle the Respondents to be resettled in the UK? (iii) Was the Memorandum of Understanding of 2003 a valid performance of the Convention obligations for those within its scope? In particular: a. Was the UK in principle entitled to fulfil its obligations under the Convention by arranging for support to be provided by Cyprus? b.
+If so, were the terms of the Memorandum of Understanding (including the 2003 Refugee Ordinance) a proper basis on which to do so? a.
+Was the UK entitled in 2005 to make the same arrangements in respect of the Respondents without their consent given their lawful and accepted presence as refugees in the SBAs since 2000 (it being accepted that the Respondents are entitled to continue to live in the SBAs [107])? b.
+If so, was the 2005 agreement with Cyprus a legally effective means of doing so, having regard to its informality and the absence of incorporation into SBA law? c.
+Has the support of Cyprus for the Respondents in accordance with the 2005 agreement been available in practice, and can it be assured in the future? (v) If the 2005 agreement, for whatever reason, was not a legally effective means of discharging the UKs obligations to the Respondents under the Convention, or if such support has not been available in practice, what are the consequences, in terms of rights or remedies potentially available in these proceedings, and how should the court give effect to them in its order? (iv) If the answer to (iii) is yes:
+The Supreme Court gives an interim judgment.
+It is final as to the issues covered (issues (i) (iii)), but interim in the sense that other issues will have to be decided (issues (iv) (v)) before the appeal can be finally determined.
+Certain critical and difficult issues had not been clearly identified in the agreed statement of facts and issues, nor adequately covered by the written or oral submissions.
+In fairness to the parties and in order to reach a fully informed conclusion, the court sees no alternative but to invite further submissions on the matters identified in the interim judgment.
+Issue (i) Until 1960 the Convention unquestionably applied to the territory now comprised in the SBAs [63].
+Treaty obligations cease to apply to a territory where it secedes from the state which entered into the treaty, or where a formerly dependent territory becomes independent of the parent state which entered into the treaty [64].
+The Cyprus Act 1960 did not alter the status of the SBAs but merely excluded them from the transfer of territory to the new Republic of Cyprus when it became independent [69].
+As a matter of international law the Convention continues to apply to the SBAs by virtue of the declaration in 1956, in the same way it applied to the colony of Cyprus before 1960.
+Article VII(4) of the Protocol provides that where a state made a declaration under Article 40(1) or (2) of the Convention extending its application to a territory for whose international relations it was responsible, and then acceded to the Protocol, the declaration should apply to the Protocol also, unless that state notified the Secretary General to the contrary.
+No further declaration was required to extend the Protocol to dependent territories where the original Convention applied.
+The UK acceded to the Protocol without any reservation relating to the SBAs.
+Since the Convention continued to apply to the SBAs after 1960, the Protocol applies there also [71].
+Issue (ii) The Convention does not entitle the Respondents to be resettled in the UK metropolitan territory.
+A states duties under the Convention to a refugee reaching a particular territory for whose international relations the state is responsible are in principle and in normal circumstances limited to providing and securing the refugees Convention rights in that context [89].
+The widespread use of colonial clauses in international treaties reflects the principle that for certain purposes, including the application of treaties, dependent territories of a state are treated as having a status in international law distinct from that of the parent states metropolitan territory [76].
+Like many multilateral treaties, the Convention was framed to apply only to a states home country or metropolitan territory unless extended to other territories under Article 40 [78].
+Article 40 suggests that for the purposes of the Convention the metropolitan territory and its dependent territories are to be treated as separate units [80].
+Similarly, other articles of the Convention indicate that the metropolitan territory is to be treated as distinct such as Articles 15, 17 to 24, 26, 19, 32 and 34 [81 88].
+Issue (iii) The Respondents submission that the 2003 Memorandum was not a proper basis for the provision of the support for refugees required by the Convention is rejected [103].
+There are uniquely close practical links between the SBAs and Cyprus [91 93].
+The Convention does refer to the appropriate treatment of refugees in a States territory and the provision of facilities to refugees there.
+But nothing in the Convention is expressly directed to a situation like that which exists in Cyprus and nothing in it is expressly inconsistent with the nature of the arrangements which the UK has made with Cyprus [94].
+International courts and tribunals will interpret a treaty in line with Article 31(1) of the Vienna Convention on the Law of Treaties.
+They will endeavour to place the factual situation as it has developed since the inception of the treaty within the context of the preserved and developing treaty relationship in order to achieve its object and purpose in so far as that is feasible [95].
+Subject to issues about the precise interpretation of certain articles, the court does not find objection in principle to some, most or all of the supporting facilities required for refugees being provided by co operative and effective arrangements with the Republic.
+The more difficult issues are as to its application to those already accepted as lawful refugees [96].
+Issues (iv) and (v) have been left for future determination and further submissions.
+The parties may be able to reach agreement without further argument on those issues [104 114].
+So far as they remain in dispute the appeal should be relisted for further submissions as soon as practicable [115].
diff --git a/UK-Abs/test-data/summary/full/uksc-2017-0110.txt b/UK-Abs/test-data/summary/full/uksc-2017-0110.txt
new file mode 100644
index 0000000000000000000000000000000000000000..3627dd2bce203be47d567672b4a3c920fcd90b6c
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2017-0110.txt
@@ -0,0 +1,48 @@
+This case is about the application of EU food hygiene rules to certain chicken and pork products manufactured by the appellant, Newby Foods Ltd (Newby).
+Specifically, the appeal concerns whether these products should be classified as mechanically separated meat (MSM) within point 1.14 of Annex I to EU Regulation No 853/2004 (the Regulation).
+Newby argues they should not be classified as MSM.
+The Food Standards Agency (FSA) contends that they should be so classified.
+It is now common for the butchering of animal carcases in the food industry across the EU to be carried out by machines.
+These often leave a significant amount of meat on the bone.
+Under the Regulation, there are two types of MSM: (1) high pressure MSM and (2) low pressure MSM.
+The specific hygiene requirements for both are set by paragraphs 3 4, Chapter III, Section V, Annex III in the Regulation.
+Further, MSM cannot count towards food meat content and attracts specific labelling requirements.
+MSM produced from lamb and beef bones is prohibited entirely under EU law.
+Consequently, the commercial value of MSM is much lower than that of other fresh meat products.
+Newby has developed a machine to remove residual meat from carcase bones.
+It uses this to process residual meat on beef, lamb and pork bones after the initial boning of the animal carcases and on chicken carcases after the breasts have first been removed by other mechanical processes.
+The Newby process has two stages: (1) meat bearing bones are forced into contact to remove meat by shearing and (2) meat so removed is then passed through a machine producing a product similar to minced meat.
+Newbys meat product was previously known in the UK as desinewed meat (DSM).
+It was widely regarded as distinct from MSM, including by the FSA.
+DSM is not a category recognised in EU law.
+On 4 April 2012, following criticism by the Commission, the FSA issued a moratorium with the result that DSM could (1) no longer be produced from residual meat on beef and lamb bones and (2) only be produced from residual meat on chicken and pork bones if classified and labelled as MSM.
+Newby brought judicial review proceedings challenging the moratorium.
+On 16 July 2013, Edwards Stuart J in the High Court made a preliminary reference to the Court of Justice of the European Union (CJEU) on the definition of MSM in point 1.14 of Annex I of the Regulation (point 1.14).
+The CJEU made a preliminary ruling on 16 October 2014 (the CJEU judgment).
+After the CJEU judgment, Newby abandoned its challenge to the moratorium as to lamb and beef carcases, but not pork and chicken.
+On 23 March 2016, Edwards Stuart J concluded that the pork and chicken meat products resulting from stage (1) of Newbys process are not MSM.
+He also found that such DSM was not a product derived from bone scrapings.
+The Court of Appeal allowed the appeal and dismissed the challenge to the moratorium, but upheld the judges finding as to bone scrapings.
+Newby now appeals to the Supreme Court on the proper interpretation of point 1.14 in light of the CJEU judgment.
+The Supreme Court unanimously dismisses the appeal.
+Lord Sales gives the lead judgment, with which all members of the Court agree.
+The proper interpretation of point 1.14 requires a correct application of the guidance provided in the CJEU judgment [51].
+In its preliminary ruling, the CJEU identified three cumulative criteria in defining MSM for the purposes of point 1.14: (1) the use of bones from which the intact muscles have already been detached, or of poultry carcases, to which meat remains attached; (2) the use of methods of mechanical separation to recover that meat; and (3) the loss or modification of the muscle fibre structure of the meat recovered through the use of those processes [26].
+The CJEU added that any meat product which satisfies those three criteria must be classified as MSM, irrespective of the degree of loss or modification of the muscle fibre structure, provided the loss or modification is greater than that which is strictly confined to the cutting point (the cutting point qualification) [26].
+In the Supreme Court, it was common ground between the parties that Newbys pork and chicken products meet the first two criteria for categorisation of MSM within point 1.14 [52].
+The appeal thus turns on whether Newbys products meet criterion (3), in light of the cutting point qualification [52].
+As identified in the courts below, there are two main possible readings of what the CJEU meant by cutting point: (1) on a narrower reading, it refers to the cutting of intact muscles, or (2) on a more expansive reading, it refers to the points at which the meat has been severed or separated during the process of recovering it [39].
+Edwards Stuart J favoured the more expansive reading [42 43], while the Court of Appeal preferred the narrower reading [45 46].
+This Court finds that, on the proper interpretation of the CJEU judgment, the narrower reading is correct [51].
+First, the way in which the CJEU formulated criterion (1) reflects the words removing meat from flesh bearing bones after boning or from poultry carcases in point 1.14 [54].
+The CJEUs formulation speaks of meat remaining attached to poultry carcases, rather than simply referring to poultry carcases, which would include all (not merely some of) the meat on the carcase [55].
+Secondly, the CJEU clearly held that the concept of MSM does not depend on it being shown that the process referred to in point 1.14 results in a loss or modification of the muscle fibre structure which is significant, rejecting outright Newbys case [56].
+On the CJEUs approach, the dividing line is much clearer.
+Meat removed from a carcase will not be MSM if it is removed by mechanical means in the first phase of cutting meat from the whole carcase, but will generally be MSM if it is later removed by mechanical means [57].
+This clear distinction avoids the need for microscopic investigation [57].
+Thirdly, the legal analysis is not affected by evidence (1) that chicken carcases will occasionally be subjected to Newbys process without the breasts first being removed or (2) that the wishbone is usually cut out of the breast meat before mechanical removal of whole chicken breasts [61 63].
+Lastly and importantly, the CJEU judgment made it explicit that, applying the definition in point 1.14, Newbys products fall to be categorised as MSM [66].
+The CJEU was entitled to express its view on the application of point 1.14 to this case and there is nothing to call into question its analysis [69 75].
+After the CJEU judgment, the position is acte clair and no further reference to the CJEU is needed [76].
+The Court reaches the above conclusions having seen, but not relied on, further evidence submitted by three of the four interveners [49 50].
+The Court refuses permission to admit this further evidence due to unfairness to the FSA and, in any event, this evidence is not considered to affect the outcome [50].
diff --git a/UK-Abs/test-data/summary/full/uksc-2017-0115.txt b/UK-Abs/test-data/summary/full/uksc-2017-0115.txt
new file mode 100644
index 0000000000000000000000000000000000000000..1c2d95558b272030332b3670e93fa441f6b060fe
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2017-0115.txt
@@ -0,0 +1,41 @@
+On 26 May 2013, the respondent, Ms Bianca Cameron, was injured when her car collided with a Nissan Micra.
+It is not in dispute that the incident was due to the negligence of the driver of the Micra.
+The registration number of the Micra was recorded, but the driver made off without stopping or reporting the accident to the police and has not been heard of since.
+Mr Naveed Hussain, the registered keeper, was not the driver and has declined to identify the driver.
+He has been convicted of failing to disclose the drivers identity.
+The car was insured under a policy issued by the appellant, Liverpool Victoria Insurance Co Ltd, to a Mr Nissar Bahadur, whom the company believes to be a fictitious person.
+Neither Mr Hussain nor the driver was insured under the policy to drive the car.
+Ms Cameron initially sued Mr Hussain for damages.
+The proceedings were amended to add a claim against Liverpool Victoria Insurance for a declaration that it would be liable to meet any judgment against him.
+The insurer served a defence, denying liability on the ground that there was no right to obtain a judgment against him as there was no evidence that he was the driver.
+Ms Cameron then applied to amend her claim form and particulars of claim.
+She sought to substitute for Mr Hussain, as defendant, the person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZJZ on 26 May 2013.
+District Judge Wright dismissed that application and entered summary judgment for the insurer.
+HHJ Parker dismissed Ms Camerons appeal.
+On further appeal, the Court of Appeal allowed the appeal by a majority (Gloster and Lloyd Jones LJJ, Sir Ross Cranston dissenting).
+The majority considered that the court had a discretion to permit an unknown person to be sued whenever justice required it and that an alternative right of claim against the Motor Insurance Bureau (MIB) was irrelevant.
+Sir Ross Cranston would have dismissed the appeal in light of the alternative right to an MIB claim.
+Liverpool Victoria Insurance appealed to the Supreme Court in relation to two issues: (1) the power to issue or amend the claim form and (2) the compatibility of the Road Traffic Act 1988 (the 1988 Act) with the Sixth Motor Insurance Directive (2009/103/EC).
+The Supreme Court allows the appeal.
+The Court of Appeals order is set aside and that of District Judge Wright is reinstated.
+Lord Sumption gives the lead judgment, with which all the Justices agree.
+Part VI of the Road Traffic Act 1988 applies in this appeal.
+Section 145 requires there to be an insurance policy against third party risks in relation to the use of the vehicle by the particular driver, while section 151(5) requires the insurer to satisfy any judgment falling within section 151(2), subject to
+certain conditions.
+Under section 151(2)(b), an insurer who has issued a policy in relation to the use of a vehicle is liable on a judgment, even where it was obtained against an uninsured driver. [3] The MIB has entered into agreements with the Secretary of State to compensate third party victims of road accidents not even covered by section 151(2)(b).
+This means victims suffering personal injury or property damage caused by (1) uninsured vehicles and (2) drivers who cannot be traced.
+Clause 4(d) of the 2003 Untraced Drivers Agreement (the 2003 Agreement) is applicable in Ms Camerons case. [4] It is a fundamental feature of the statutory scheme of compulsory insurance in the UK that it does not confer on victims a direct right of recovery against an insurer for the underlying liability of the driver.
+The only direct right against the insurer is the right to require it to satisfy a judgment against the driver, under section 151, once the drivers liability has been established in legal proceedings.
+Consistent with this approach, the 2003 Agreement assumes that judgment cannot be obtained against the driver if he cannot be identified, and therefore the only recourse is against the MIB, not the insurer. [5, 22] The general rule remains that proceedings may not be brought against unnamed parties, as is implicit in the limited exceptions contemplated by the Civil Procedure Rules (CPR) [9].
+The main exceptions are: (1) possession actions against trespassers, (2) actions and orders where some of the wrongdoers were known so they could be sued both personally and as representing their unidentified associates and (3) the wider jurisdiction recognised in Bloomsbury Publishing Group Plc v News Group Newspapers Ltd [2003] 1 WLR 1633 (Ch) [10].
+The key distinction is between two classes of unnamed defendant cases: (1) anonymous defendants who are identifiable but whose names are unknown and (2) defendants, such as in most hit and run drivers, who are not only anonymous but cannot even be identified.
+In category (1), defendants are described in such a way that it is at least possible to locate or communicate with them, and to determine whether they are the person described in the claim form.
+In category (2), this is not possible. [13] This appeal is not directly concerned with service it is about the issue or amendment of the claim form but the legitimacy of issuing or amending can be tested against the possibility of service [14].
+An identifiable but anonymous defendant can be served, if necessary by CPR r.6.15 alternative service [15].
+Interim injunction cases can fall in category (1), because the process of enforcing the injunction will sometimes be enough to bring the proceedings to the defendants attention, as in Bloomsbury [15].
+However, an unknown person is not identified simply by referring to past actions [16].
+Proceedings against such a person (in category (2)) offend the fundamental principle of justice that a person cannot be made subject to the jurisdiction of the court without having such notice of the proceedings as will enable a fair hearing [17 18].
+While CPR r.6.15 permits alternative service, the mode of service should be such as can reasonably be expected to bring the proceedings to the defendants attention [20 21].
+Applying these principles to the present appeal, alternative service against an unidentifiable person referred to in the proceedings only by a pseudonym or description cannot be justified.
+In particular, ordinary service on the insurer would not constitute service on the driver, and alternative service could not be expected to reach the driver of the Micra.
+Nor would it be appropriate to dispense with service under CPR r.6.16 in a case where it could not be shown that the defendant knew of the proceedings. [21 26] As to the EU law issue on the Sixth Motor Insurance Directive, the Supreme Court considers no point on the Directive arises because: (1) Ms Cameron is not trying to assert a direct right against the insurer for the underlying wrong (her claim is for damages from the driver) and (2) it is consistent with the Directive to require a claim against the MIB, not the insurer, in this class of case [27 30].
diff --git a/UK-Abs/test-data/summary/full/uksc-2017-0160.txt b/UK-Abs/test-data/summary/full/uksc-2017-0160.txt
new file mode 100644
index 0000000000000000000000000000000000000000..c5e9de36d0b4d42dbb2e610e3cbbfb688041fa4e
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2017-0160.txt
@@ -0,0 +1,35 @@
+This appeal concerns the effect of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000 (SI 2000/1552) (the Transfer Order) and the GLA Roads Designation Order 2000 (SI 2000/1117) (the Designation Order).
+By combined operation of those Orders, responsibility for Greater London Authority (GLA) roads was transferred from individual London borough councils, including the Respondents (the Councils) as local highway authorities, to the Appellant (TfL).
+The provision at the heart of this appeal is article 2(1)(a) of the Transfer Order, which provides for the transfer of the highway, in so far as it is vested in the former highway authority.
+TfL and the Councils convened a statutory arbitration before Mr John Males QC.
+The purpose was to determine exactly what specified property and liabilities transferred to TfL in relation to each highway.
+The dispute between the parties is whether the automatic transfer of the highway under article 2(1)(a) of the Transfer Order carried with it: (i) only the zone of ordinary use (i.e. the road surface and the airspace and subsoil necessary for the operation, maintenance and repair of the road) or (ii) the entire vertical plane (i.e. all the airspace above and the subsoil below the surface of the road), to the extent that the relevant council already owned it prior to the transfer date.
+In the arbitration and at each stage on appeal, the Councils argued the transfer was limited to the former, while TfL argued for the latter, wider approach.
+The arbitrator broadly agreed with TfLs case.
+The caveat was that particular layers or slices of subsoil and/or airspace that had acquired a separate identity by the transfer date could not be treated as parts of the highway and so did not pass to TfL.
+On appeal to the High Court, Mr Justice Mann agreed with the arbitrator, recording a concession by counsel for TfL that its claim related to land acquired for or appropriated to highway purposes.
+However, on further appeal, the Court of Appeal adopted a narrower position.
+It considered that the word highway in article 2(1)(a) of the Transfer Order must have been intended to carry the same meaning as it had at common law, and in relation to section 263 of the Highways Act 1980 (the 1980 Act).
+Thus, the Court of Appeal held that only the zone of ordinary use had transferred to TfL.
+The Supreme Court unanimously allows the appeal.
+Lord Briggs gives the sole judgment of the Court.
+The word highway has no single meaning in the law [6].
+The default land law position, that the conveyance of freehold land automatically involves the transfer of the entire vertical plane, was not
+followed in successive statutory provisions dealing with automatic vesting of highway interests formerly in private ownership, as seen in the decision in Tunbridge Wells Corpn v Baird [1896] AC 434 (HL) (the Baird principle) [7 8].
+The Baird principle provides that such a transfer was limited to the road surface, the subsoil immediately beneath it and airspace sufficient to enable use and enjoyment by the public and maintenance by the highway authority [9].
+The limits set by the Baird principle reflected concerns about expropriation of private property without compensation resulting from statutory vesting [11].
+It was, rightly, common ground that the Baird principle applies to section 263 of the 1980 Act, replicating section 226 of the Highways Act 1959 (the 1959 Act) [12].
+However, section 265 of the 1980 Act and its predecessors make provision for the transfer of property and liabilities, as between successive highway authorities, of highways designated as trunk roads [13].
+The first major property transfer scheme was undertaken in relation to newly designated trunk roads by section 7 of the Trunk Roads Act 1936 (the 1936 Act) [15].
+Despite differences in language, the substance of section 228 of the 1956 Act and section 265 of the 1980 are materially the same as section 7 of the 1936 Act [16 19].
+The extent of transfer of highway rights is complicated by the fact that local highway authorities often acquire property rights in relation to highways by means other than automatic vesting under section 263, such as compulsory purchase and acquisition by private treaty and, at times, for non highway purposes [21].
+Ownership of airspace above and subsoil below the zone of ordinary use may also be of substantial commercial or development value, particularly in urban areas like Central London [22].
+Disagreeing with the Court of Appeal, the Supreme Court decides that the Baird principle does not apply to article 2 of the Transfer Order or to section 265 of the 1980 Act, upon which article 2 was modelled [28].
+The words [t]he highway, in so far as it is vested in the former highway authority in article 2, properly construed, mean only that part of the vertical plane relating to a GLA road which was vested in the relevant council on the operative date, in its capacity as former highway authority, is transferred [29].
+The Supreme Court disagrees with the Court of Appeals reasoning that the word highway, used in article 2 and section 265, has a clear common law meaning it is not a defined term and its meaning in this context is to be found through the almost identical wording of section 265 on trunk roads [31 33].
+Given the different ancestry of, and purposes served by, section 263 and section 265 of the 1980 Act, the word highway used in both provisions cannot be given the same meaning [34 36].
+The phrase beginning with in so far as in section 265(1)(a) of the 1980 Act, and in article 2, imports the ownership capacity limitation [37 39].
+The Courts approach, like that of the arbitrator, largely avoids irrational types of multi layering on the vertical plane in the sense of different highway authorities owning parts of the vertical plane in the same highway [40 43].
+Further, expropriation concerns are not well founded because, generally, the transfer of property from one highway authority to another is simply the quid pro quo for relief from responsibility for operation and maintenance [48].
+Lastly, there is no presumption or burden of proof as to the extent of highway rights transferred [49 50].
+This decision does not resolve any issues as to the ownership of the lateral plane of a highway [51].
diff --git a/UK-Abs/test-data/summary/full/uksc-2017-0214.txt b/UK-Abs/test-data/summary/full/uksc-2017-0214.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e380b3a903f3faa8328165a3c03662e7cd4fbd6e
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2017-0214.txt
@@ -0,0 +1,50 @@
+Tadalafil is the generic name for a drug which is sold under the brand name CIALIS for the treatment of, among other things, erectile dysfunction (ED).
+Tadalafil is a competitor (second in class) to sildenafil, which was and is sold under the brand name, VIAGRA.
+The patent which is the subject of this appeal is EP(UK) 1,173,181 (the 181 patent).
+It is owned by ICOS and exclusively licensed to Eli Lilly (collectively Lilly).
+It was filed on 26 April 2000 and granted on 15 October 2003.
+The 181 patent relates to the use of tadalafil in a dosage form for the treatment of ED.
+This case is concerned with section 3 of the Patents Act 1977 (1977 Act): Section 2(2) of the 1977 Act provides: An invention shall be taken to involve an inventive step if it is not obvious to a person skilled in the art, having regard to any matter which forms part of the state of the art by virtue only of section 2(2) above (and disregarding section 2(3) above).
+The state of the art in the case of an invention shall be taken to comprise all matter (whether a product, a process, information about either, or anything else) which has at any time before the priority date of that invention been made available to the public (whether in the United Kingdom or elsewhere) by written or oral description, by use or in any other way.
+These statutory provisions mandate the court to assess whether an invention is obvious by having regard to the state of the art at the priority date of the invention.
+If the invention is not obvious to the skilled person at that date, section 3 deems the invention to involve an inventive step.
+Lilly asserts that the essence of the invention is the discovery that tadalafil is effective in treating ED at a low dose and with minimal side effects.
+This discovery has allowed the drug to be taken daily (for chronic use) rather than on demand, avoiding the need to anticipate when sexual activity might occur.
+This is, Lilly claims, a significant technical advantage as sildenafil is approved for on demand use only.
+The respondents raised proceedings to revoke the 181 patent.
+Lilly defended the claim and counterclaimed that the respondents were threatening to infringe its patent.
+The High Court held that a 5mg daily dose of tadalafil was not obvious as a treatment for ED and therefore concluded that the 181 patent involves an inventive step.
+The Court of Appeal allowed the appeal on the ground that the 181 patent lacked inventive step.
+Lilly appealed to the Supreme Court.
+The Supreme Court unanimously dismisses the appeal.
+Lord Hodge gives the sole judgment with which the other Justices agree.
+Since the enactment of the 1623 Statute of Monopolies, the purpose of a grant of a patent has been to encourage innovation.
+The patent bargain is this: the inventor obtains a monopoly in return for disclosing the invention and dedicating it to the public for use after the monopoly has expired [53].
+This overarching principle has survived the amendment of UK patent law after accession to the European Patent Convention [54].
+In addressing the statutory question of obviousness in section 3 of the 1977 Act it is common for English courts to adopt the so called Windsurfing/Pozzoli structure [60].
+An alternative approach which the EPO often adopts is the so called problem and solution approach [61].
+While both approaches focus on the inventive concept put forward in the claims, neither approach should be applied in a mechanistic way [62].
+The question of obviousness must be considered on the facts of each case [63].
+Factors which are relevant considerations in the present case include the following [64].
+First, it is relevant to consider whether at the priority date something was obvious to try, in other words whether it was obvious to undertake a specific piece of research which had a reasonable or fair prospect of success [65].
+Secondly, it follows that the routine nature of the research and any established practice of following such research through to a particular point may be a relevant consideration [66].
+Thirdly, the burden and cost of the research programme is relevant [67].
+Fourthly, the necessity for and the nature of the value judgments which the skilled team would have in the course of a testing programme are relevant considerations [68].
+Fifthly, the existence of alternative or multiple paths of research will often be an indicator that the invention contained in the claim or claims was not obvious [69].
+Sixthly, the motive of the skilled person is a relevant consideration.
+The notional skilled person is not assumed to undertake technical trials for the sake of doing so but rather because he or she has some end in mind [70].
+Seventhly, the fact that the results of research which the inventor actually carried out are unexpected or surprising is a relevant consideration as it may point to an inventive step [71].
+Eighthly, the courts have repeatedly emphasised that one must not use hindsight, which includes knowledge of the invention, in addressing the statutory question of obviousness [72].
+Ninthly, it is necessary to consider whether a feature of a claimed invention is an added benefit in a context in which the claimed innovation is obvious for another purpose [73].
+A tenth consideration is the nature of the invention.
+In this case, the Court is concerned with a dosage patent with a Swiss form claim and an EPC 2000 claim.
+The possibility that a dosage patent with such claims may be valid has been recognized both by the EPO and in the United Kingdom courts [74].
+In the present dispute, the Court considers that the balance or symmetry in patent law and the pre established or at least readily foreseeable target of the skilled teams tests hold the key to its resolution.
+The prior art discloses an invention that is the use of tadalafil in the treatment of ED in a manner which enables the skilled person to perform it.
+The task which the notional skilled team would undertake was that of implementing patent EP 0 839 040 (the Daugan patent), which was the nearest prior article The Daugan patent had disclosed that doses of tadalafil for the treatment of ED will generally be in the range of 0.5mg to 800mg daily for the average adult patient.
+The target of the skilled team would be to ascertain the appropriate dose, which would usually be the lowest effective dose.
+The skilled team would know of that target from the outset of its research.
+The pre clinical and clinical tests involved familiar and routine procedures and normally progressed to the discovery of the dose response relationship in Phase IIb [105].
+In this case the trial judges findings of what would have been the sequence of the tests, which did not depend upon hindsight, included the finding, which the evidence clearly justified, that the team, having found a therapeutic plateau, would be very likely to test lower doses and so come upon the dosage regime which is the subject matter of the patent [105].
+The Court considers that the Court of Appeal was entitled to treat the judges failure to appreciate the logical consequences of the finding that it was very likely that the skilled team would continue the testing as an error of principle which allowed an appellate court to carry out its own evaluation [82].
+As such, the Court is satisfied that the Court of Appeal was entitled to interfere with the trial judges assessment of obviousness and to hold that the 181 patent was invalid for lacking an inventive step [105].
diff --git a/UK-Abs/test-data/summary/full/uksc-2018-0030.txt b/UK-Abs/test-data/summary/full/uksc-2018-0030.txt
new file mode 100644
index 0000000000000000000000000000000000000000..6ac4e6ab7c67f27f67f78a608ecc8d6f246e1e3b
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2018-0030.txt
@@ -0,0 +1,30 @@
+This is an application by the Attorney General for Northern Ireland under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 (the 1998 Act).
+Paragraph 34 provides that the Attorney General may refer to the Supreme Court any devolution issue which is not the subject of proceedings.
+A devolution issue includes a question whether a purported exercise of a function by a Northern Ireland Department is or would be invalid by reason of section 24 of the 1998 Act. section 24(1)(a) provides that a Department of Northern Ireland has no power to make, confirm or approve any subordinate legislation, or to do any act, so far as the legislation or act is incompatible with any of the rights guaranteed by the European Convention on Human Rights (the ECHR).
+By the Welfare Reform (Northern Ireland) Order 2015 (Commencement no. 8 and Transitional and Transitory Provisions) Order 2017, the Secretary of State commenced a number of universal credit provisions for claims on or after 27 September 2017 where the claimant resides in an area known as no. 1 relevant districts.
+Although it is for the Secretary of State to appoint the dates for commencement, he does so by a legislative technique which requires action by the Northern Ireland Department for Communities (part of the Northern Ireland Executive).
+The 2017 Order defines the no. 1 relevant districts as the postcodes specified in the table in the List of the no. 1 Relevant Districts.
+It is the Department for Communities which must issue such lists.
+The same holds true of a second order made by the Secretary of State relating to no. 3 relevant districts and no. 2 relevant districts.
+The basis for the Attorney Generals reference is his assertion that the universal credit provisions in question breach Article 1 Protocol 1, Articles 8, 14 and 12 of the ECHR and are therefore invalid per section 24 of the Northern Ireland Act 1998.
+The Attorney General submits that the provision of lists by the Department for Communities is necessary in order to give effect to the Secretary of States commencement orders and thus constitutes an act, per section 24 of the 1998 Act, which is incompatible with the ECHR and invalid.
+It is for this reason that the Attorney General submits that the publication of lists by the Department for Communities raises a devolution issue under Schedule 10 of the 1998 Act.
+The Department for Communities refutes this, contending that the provisions under challenge concentrated the power to make welfare provision in the office of the Secretary of State.
+The Department for Communities submits that its role in issuing the lists amounts to nothing more than providing administrative support to the Secretary of State, and that the lists have legal effects solely by reason of the act of the Secretary of State, not the act of the Department.
+The publication of lists is not, therefore, an act raising a devolution issue under section 24 of the 1998 Act.
+The Supreme Court unanimously refuses to accept the Attorney Generals application to refer this issue to the court under paragraph 34 of Schedule 10 to the 1998 Act.
+Lord Kerr, with whom Lady Hale and Lord Reed agree, gives the judgment.
+The Court notes that acts by the Secretary of State for Northern Ireland or by departments in Westminster do not come within the purview of section 24 of the 1998 Act.
+For a devolution issue to arise, it must be shown that an act or function has been carried out by a Northern Ireland minister or department, and that the act in question is invalid by reason of section 24 [6].
+The prohibitions in section 24 are disjunctive: it is forbidden to make, confirm or approve any subordinate legislation, or to do any act, so far as the legislation or act is incompatible with the ECHR.
+Acts ancillary to the enactment of subordinate legislation are thus in principle capable of being caught by section 24.
+It is therefore possible, on a theoretical or technical level, to consider that the Departments provision of the postcode lists in question amounts to such an ancillary act [11].
+There are, however, two reasons that the provision of such lists cannot be said to raise a devolution issue.
+First, as the Court held in AGNIs reference [2019] UKSC 1, where the Attorney General sought to refer to this court a devolution issue that arose in parallel pending proceedings, it was considered not to be appropriate to accept the reference.
+The same holds true here: a challenge to the universal credit provisions will come before this court shortly on appeal from a decision of the English Court of Appeal.
+It will be open to the Attorney General to apply to intervene in that appeal [12].
+Second, the fundamental underpinning of the Attorney Generals case is that the introduction of universal credit in Northern Ireland by act of the Secretary of State is incompatible with the ECHR.
+It is not that the Departments act in identifying the areas where universal credit is to be introduced that is incompatible.
+The publication of the lists itself is not an act sufficient to give rise to an incompatibility with the ECHR.
+For a devolution issue under Schedule 10 to arise, it must be shown that the departmental act under challenge is capable of being incompatible with the ECHR.
+Because the publication of lists is not in itself capable of giving rise to an incompatibility, it is not appropriate to accept a reference under paragraph 34 [13 14].
diff --git a/UK-Abs/test-data/summary/full/uksc-2018-0099.txt b/UK-Abs/test-data/summary/full/uksc-2018-0099.txt
new file mode 100644
index 0000000000000000000000000000000000000000..b14a758ed94c7abce1029765001b581ec5ea487a
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2018-0099.txt
@@ -0,0 +1,35 @@
+This appeal concerns the permitted uses of a retail store in Streatham in the London Borough of Lambeth.
+Planning permission was granted by the Secretary of State in 1985, but the use was limited by condition to sale of DIY goods and other specified categories, not including food.
+The permitted categories were extended by later consents (under section 73 of the Town and Country Planning Act 1990 (the 1990 Act)).
+The most recent was in 2014, which is in issue in this case.
+In that permission, the proposed new wording for the permission included: The conditions in the 2014 permission did not refer to the restriction on the sale of food goods, or to conditions in the previous permission from 2010.
+The second respondent (Aberdeen Asset Management) sought a certificate from the appellant Council determining that the lawful use of the store extended to sales of unlimited categories of goods including food.
+A certificate to that effect was refused by the Council, but granted by a planning inspector on appeal, on the basis that no condition was imposed on the 2014 permission to restrict the nature of the retail use to specific uses.
+This was upheld by the lower courts.
+The Council, as the local planning authority, appeals to this court.
+The Supreme Court unanimously allows the appeal.
+The certificate should be amended to exclude uses within the scope of the Proposed wording in the decision notice.
+Lord Carnwath gives the lead judgment.
+Section 73 of the 1990 Act envisages two situations: either (a) the grant of a new permission unconditionally or subject to revised conditions, or (b) refusal of permission, leaving the existing permission in place with its conditions unchanged.
+It does not say what is to happen if the authority wishes to change some conditions but leave others in place.
+Government guidance indicating that to assist with clarity planning decisions under section 73 should also repeat the relevant conditions
+from the original planning permission was given as advice, rather than as a statement about the legal position [13].
+Whatever the legal character of the document in question, the starting point for interpretation is to find the natural and ordinary meaning of the words there used, viewed in their particular context and in the light of common sense [19].
+The 2014 permission needs to be seen through the eyes of a reasonable reader, who is assumed to start by taking the document at face value [28].
+The wording of the operative part of the grant are clear and unambiguous.
+The Council approves an application for the variation of condition as set out below, which is followed by precise and accurate descriptions of the relevant development, of the condition to be varied, and of the permission under which it was imposed.
+That is followed by statements of the Original wording, then of the Proposed wording, the latter stating in terms that the store is to be used for the sale of non food goods only.
+The obvious and only natural interpretation of those parts of the document is that the Council was approving what was applied for: the variation of one condition from the original wording to the proposed wording, in effect substituting one for the other.
+There is nothing to indicate an intention to discharge the condition altogether, or to remove the restriction on the sale of food goods [29].
+If section 73 gave no power to grant a permission in the form described, the logical consequence would be that there was no valid grant at all, not that there was a valid grant free from the proposed condition.
+There is no issue now as to the validity of the grant as such, and all parties agree there was a valid permission for something.
+That being the common position, the document must be taken as it is [32].
+It has been normal and accepted usage to describe section 73 as conferring power to vary or amend a condition, so the reasonable reader would not see any difficulty in giving effect to the 2014 permission in the manner authorised by the section i.e. as the grant of a new permission subject to the condition as varied.
+The absence of a reason for the condition does not affect its validity [33].
+There are some internal inconsistencies in the second part of the notice, but reading the document as a whole, the second part can be given a sensible meaning without undue distortion.
+It is explanatory of and supplementary to the first part.
+The permitted development incorporating the amended condition is acceptable but only subject to the other conditions set out.
+In other words, they are additional conditions [34 35].
+This appeal is not concerned with the status of the conditions in the 2010 permission, but the courts provisional view is that the 2010 conditions were not incorporated into the new permission, but continued to have effect under the 2010 permission, so far as they are consistent with anything in the new grant.
+The conditions remain valid and binding because there was nothing in the new permission to affect their continued operation [37 38].
+Nothing in the present judgment is intended to detract from the advice, contained in the decision by Sullivan J in R (Reid) v Secretary of State for Transport [2002] EWHC 2174 (Admin), at paragraph 59, that it is highly desirable that all the conditions to which the new planning permission will be subject should be restated in the new permission and not left to a process of cross referencing [42].
diff --git a/UK-Abs/test-data/summary/full/uksc-2018-0131.txt b/UK-Abs/test-data/summary/full/uksc-2018-0131.txt
new file mode 100644
index 0000000000000000000000000000000000000000..bdecc4ab659abfd28e2902a0334c1bf9250474ba
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2018-0131.txt
@@ -0,0 +1,43 @@
+In 2001 Regeneron Pharmaceuticals Inc filed patents for a new type of genetically modified mouse.
+Regenerons breakthrough was a hybrid version of the gene that produces antibodies, combining a section of the mouses genetic material (the constant region DNA) with a section of genetic material from a human (the variable region DNA).
+The resulting mouse can be used to produce antibodies which are suitable for medical treatment in humans, but are sufficiently similar to mouse antibodies that they do not cause immunological sickness in the mouse.
+The idea of combining a human variable region with a mouse constant region was a major contribution to science.
+At the hearing in February 2020 the court was told that hybrid mice incorporating this invention had a range of medical uses, including in the race to generate antibody therapies against coronavirus.
+In 2013 Regeneron sued a British company, Kymab Ltd, for infringement of its patents.
+Kymab was producing its own genetically modified mice, branded Kymice, with a similar genetic structure to Regenerons mice.
+Kymab responded by arguing the patents filed by Regeneron in 2001 were invalid because they fell foul of a patent law rule called sufficiency.
+Sufficiency means documents filed with the patent must be detailed enough to enable scientifically skilled readers to make the invention for themselves.
+The Court of Appeal found that Regenerons patents contained enough information to enable a skilled reader to insert some of the human material into a mouses genes.
+This would have created one type of hybrid mouse.
+However, the patents did not explain how to create a hybrid structure incorporating the full human variable region genes into the mouses genome.
+That was a complicated feat of genetic engineering and no reliable method for doing it was invented until 2011.
+This meant an expert reading the patents in 2001 would be unable to make many types of hybrid mice which Regeneron had claimed to have invented.
+The Court of Appeal upheld the patents, saying there was no need for the patents to explain how to make the full range of mice because Regenerons idea was a principle of general application.
+Kymab appealed to the Supreme Court.
+The Supreme Court allows Kymabs appeal by a majority of four to one, holding that the patents are invalid.
+Lord Briggs gives the majority judgment.
+Lady Black gives a dissenting judgment.
+A patent reflects a bargain between the inventor and the public.
+The inventor gains a time limited monopoly over the making and use of a product.
+In return, the public gains the ability to make the product after the expiry of the monopoly.
+As part of this bargain, the inventor must publish sufficient information to enable a skilled member of the public to make the product.
+This ensures that patent holders only gain legal protection which is proportional to their actual technical contribution to the art, and encourages inventors to conduct research for the benefit of society [23].
+The Court of Appeal was influenced by the fact that Regenerons invention is a principle of general application.
+Its contribution to the field was present not only in mice which could be made in 2001, but also in mice with a larger amount of human genetic material which could be made using later scientific developments.
+The Court of Appeal thought it was unfair to limit Regenerons monopoly to types of hybrid mice which could be made when the patent was filed [27].
+However, the authorities establish a number of principles in this area.
+Patentees must not make overly broad claims [56(iii)].
+If they claim the right to make a range of products, sufficiency means they must disclose enough information to enable a skilled person to make the full range which is claimed [56(iv)].
+This means a relevant range which affects the utility of the product [56(vii)].
+So Regeneron was not required to explain how to make mice of varying colours, or with tails of varying length, because these features do not affect a mouses ability to produce antibodies [21].
+Applying these principles, Regenerons patents did not enable a skilled person to make mice containing more than a very small section of the human variable region.
+The amount of human material was an important factor which was thought to affect the diversity of useful antibodies which the mice would produce.
+Mice at the more valuable end of the range could not be made using Regenerons patents.
+So Regeneron was claiming a monopoly which was far wider than its contribution to the art [57].
+The Court of Appeal upheld patents over a range of mice even though Regeneron could only make mice over a small part of the range, at the least beneficial end of the range with the smallest amount of human genetic material [58].
+Its analysis watered down the sufficiency requirement which is a bedrock of patent law, tilting the balance of patent law in favour of patentees and against the public [59].
+Therefore, the majority allows the appeal and holds that the patents are invalid for insufficiency.
+Lady Black gives a dissenting judgment, in substance agreeing with the Court of Appeal.
+The application of the sufficiency requirement depends on the nature of the individual invention and the facts of the case.
+The Court of Appeal characterised Regenerons invention as a principle of general application which solved the problem of immunological sickness [83 84].
+Seen in this way, the sufficiency requirement was met since the invention was deployed in each mouse across the range, irrespective of the quantum of human material incorporated [86].
diff --git a/UK-Abs/test-data/summary/full/uksc-2018-0132.txt b/UK-Abs/test-data/summary/full/uksc-2018-0132.txt
new file mode 100644
index 0000000000000000000000000000000000000000..f7613aa29256fd102672fbf6622ace2b77752e18
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2018-0132.txt
@@ -0,0 +1,34 @@
+This appeal relates to a compensation scheme (the Scheme) set up in 1999 by the Department for Trade and Industry to provide tariff based compensation to miners employed by the British Coal Corporation (British Coal) who suffered from a medical condition called vibration white finger (VWF) as a result of excessive exposure to vibration through the use of vibratory tools.
+The Scheme provided for compensation to be paid for pain, suffering and loss of amenity (General Damages) and handicap on the labour market and other financial losses including past and/or future loss of earnings (Special Damages), which could include a services award to cover the need for assistance in performing specified domestic tasks.
+Rather than conducting an individual assessment of each claimants ability to carry out the specified tasks, the Scheme applied a presumption based on the condition reaching a certain level of severity.
+Mr Arthur Watkins was employed by British Coal as a miner from 1964 until 1985 and had developed VWF by the early 1980s.
+In 1999 he instructed the appellant to act for him in relation to a claim under the Scheme.
+Findings from a medical examination and interview indicated that Mr Watkins could obtain General Damages and qualified for the presumption in his favour that he satisfied the requirements for a services award.
+Mr Watkins sought a services award.
+In 2003 he was instead offered the tariff award for General Damages in full and final settlement of his claims.
+The appellant wrote to Mr Watkins on 18 February 2003 reporting the offer.
+After a telephone conversation with an employee of the appellant, Mr Watkins accepted the offer.
+In 2008, Mr Watkins instructed new solicitors to bring a claim against the appellant for professional negligence, on the basis that as a result of the appellants negligence Mr Watkins had lost the opportunity to bring a services claim under the Scheme.
+Mr Watkins died in 2014 and his daughter, Mrs Jean Edwards, was appointed to continue the claim on behalf of his estate.
+The first instance court held that the letter of 18 February 2003 and the advice given had been negligent and that had Mr Watkins received appropriate advice he would probably have rejected the offer and pursued his services claim.
+A jointly instructed medical expert, who had been instructed not to apply the presumption that would have applied under the Scheme, provided a report that concluded Mr Watkinss symptoms would have been insufficient to succeed on a services claim.
+The court therefore held that Mr Watkins had suffered no loss and dismissed the claim.
+Mr Watkins successfully appealed to the Court of Appeal, which decided that the trial judge had been wrong to determine the value of the services claim on the basis of evidence that would not have been available at the time of the notional claim.
+The appellant seeks to appeal that decision.
+The issue in the appeal is whether, in assessing the prospects of success of the negligence claim, the court should have taken account of the further medical report.
+The Supreme Court unanimously dismisses the appeal and remits the matter for assessment of the value of the loss of the opportunity to pursue the services claim.
+Lord Lloyd Jones gives the judgment, with which all members of the Court agree.
+In order to succeed in his claim in the tort of negligence, Mr Watkins had to establish a negligent breach of duty, causation and loss.
+The trial judge found that there had been a negligent breach of duty and that causation was established.
+Neither conclusion has been appealed [22].
+To succeed, therefore, Mr Watkinss estate must prove loss, specifically that in losing the opportunity to pursue the claim Mr Watkins lost something of value, i.e. that his services claim had a real and substantial rather than merely a negligible prospect of success [23].
+Mr Watkinss original claim was within the Scheme, and it is therefore necessary to consider whether the claim was of more than negligible value within the context of that Scheme [25].
+The expert report was concerned with causation, not loss, and was prepared to assist in the assessment of whether Mr Watkinss failure to pursue a services claim arose from negligent advice or from an inability to assert truthfully that he had lost the ability to perform activities that would qualify him for a services award [27].
+As a result, the expert was instructed not to apply the presumption used under the Scheme [28].
+Had Mr Watkins pursued a services claim it would have proceeded on the basis of the Schemes procedures.
+He would have had to undergo only a limited second medical examination and there would have been no equivalent of the experts report.
+His entitlement to a services award would have been decided by the application of the Schemes presumption.
+There was no justification for considering a further medical examination and report which would not have been commissioned under the Scheme and therefore the judge erred in taking this into account [29].
+Given other findings in the expert report, the court is unable to accept that the services claim had no chance of success so that the lost claim was of no value [30].
+The first instance judge should have proceeded to assess the value of the lost claim on a loss of opportunity basis.
+The court therefore dismisses the appeal and remits the matter for that assessment [32].
diff --git a/UK-Abs/test-data/summary/full/uksc-2018-0140.txt b/UK-Abs/test-data/summary/full/uksc-2018-0140.txt
new file mode 100644
index 0000000000000000000000000000000000000000..bd423ab017578a150a283206579010b94128fa86
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2018-0140.txt
@@ -0,0 +1,41 @@
+The appellant, DN, is a Rwandan national who was granted refugee status in the UK pursuant to the 1951 Refugee Convention on 26 October 2000.
+He was subsequently convicted in the UK of a number of offences, the most serious of which occurred on 22 January 2007 when he pleaded guilty to assisting the unlawful entry of a non EEA (European Economic Area) national in the UK contrary to section 25 of the Immigration Act 1971 (the 1971 Act).
+He was sentenced to 12 months imprisonment for the Immigration Act offence and two months consecutively for each of three pecuniary advantage offences making a total sentence of 18 months imprisonment.
+The Secretary of State for the Home Department has powers, under the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) to order the deportation of persons convicted of serious offences.
+Section 72(4)(a) of the 2002 Act provides that a person shall be presumed to have been convicted of a particularly serious crime and to constitute a danger to the community of the United Kingdom if s/he is convicted of an offence specified by order of the Secretary of State.
+The Secretary of State specified several offences which were said to be particularly serious crimes by way of the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 (the 2004 Order).
+Assisting unlawful immigration contrary to section 25 of the 1971 Act was included among them.
+At the conclusion of DNs imprisonment on 2 July 2007, the Secretary of State made a decision to deport DN, based on section 72(4)(a) of the 2002 Act: DN was presumed, on the basis of the 2004 Order, to have been convicted of a particularly serious crime and to constitute a danger to the community.
+On 31 January 2008, the Secretary of State, using his powers of administrative detention conferred by Schedule 3, paragraph 2(3) of the 1971 Act, ordered DNs detention pending deportation.
+DN brought a claim for judicial review of the deportation order.
+Following a stay and the decision in EN (Serbia) v Secretary of State for the Home Department [2009] EWCA Civ 630, [2010] QB 633, which determined that the 2004 Order was unlawful, DN amended his judicial review proceedings to concentrate on the lawfulness of the detention.
+Following a further stay and the decision in R (Draga) v Secretary of State for the Home Department [2012] EWCA Civ 842, where the Court of Appeal ruled detention lawful even where based on an unlawful deportation order, the Court of Appeal dismissed DNs substantive appeal.
+The Supreme Court unanimously allows the appeal.
+It holds that the appellant was unlawfully detained and is entitled to pursue a claim for damages for false imprisonment.
+Lord Kerr, with whom Lord Wilson, Lady Black and Lord Kitchin agree, gives the lead judgment.
+Lord Carnwath gives a concurring judgment.
+Lord Kerr, with whom Lord Wilson, Lady Black and Lord Kitchin agree First, the Court notes that Lord Dyson in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 made it clear that there is no difference between a detention that is unlawful because there was no statutory power to detain and a detention that is unlawful because the decision to detain was made in breach of a rule of public law.
+Here, as in Lumba, there was no statutory power to detain.
+The 2004 Order upon which the decision to deport was based was ruled unlawful in EN (Serbia).
+As detention was for the express purpose of facilitating deportation, without a lawful deportation order the occasion for detention simply does not arise [17].
+Second, detention is entirely dependent on the decision to deport.
+DNs detention was uniquely linked to the deportation order.
+Without a lawful decision to deport, the question of detention cannot arise, much less be legal [18, 20].
+The lawfulness of detention is always referable back to the legality of the decision to deport, and this is not an instance of a series of successive steps, each having an independent existence.
+For this reason, the Court does not accept the argument that the independent judicial decision made in statutory appeals (per section 82 of the 2002 Act) is a step removing the legal error in question.
+The rubric, chain of causation is inapposite in this context [19].
+The Court considers that Draga was wrongly decided, for the reasons given by Lord Carnwath.
+Further, the Court considers that, if and insomuch as Ullah suggests that paragraph 2(2) of Schedule 3 of the 1971 Act provides stand alone authority for lawful detention, no matter what has gone before and irrespective of the fact that the decision to deport lacks legal basis, that decision too was wrong.
+Lord Carnwath Lord Carnwath agrees with Lord Kerrs judgment, but adds his thoughts, particularly on the issue of res judicata / issue estoppel, which was not discussed in argument but which to his mind could provide a complete answer in similar cases in the future [1].
+Lord Carnwath agrees that the decision to detain in this case was directly dependent on the deportation decision and that, as such, DNs claim for damages comes clearly within the Lumba principle, unless excluded by some specific rule of law.
+No such rule emerges from the reasons of the Court of Appeal in Draga or from submissions for the Secretary of State [9 10].
+Lord Carnwath considers Draga was wrongly decided for two reasons.
+First, Pill LJs suggested grounds for distinguishing R v Governor of Brockhill Prison, Ex p Evans (No 2) [2002] 2 AC 19 are unpersuasive: it could not be said that the Secretary of State was acting within the four corners of a court order relating to the applicants detention.
+Rather, the decision of the tribunal related only to deportation [11 12].
+Second, Pill LJs reliance on the second actor theory was misplaced: where the Secretary of State is directly responsible for making the order later found to be unlawful, it would be odd if it could rely on it to support the validity of later actions based on it [12].
+Finally, Lord Carnwath considers that issue estoppel, if argued, could have provided the answer to this appeal.
+DNs private law claim for damages depended on the lawfulness of the deportation decision at the time it was made.
+That issue was conclusively determined by the decision of the tribunal in August 2007 and the decision of the High Court rejecting the application for review.
+DN had the opportunity to challenge the legality of the original deportation decision by reference to the invalidity of the 2004 Order, but did not do so.
+Hence, he would be estopped from challenging it at a later date [30].
+However, since the Secretary of State did not rely on res judicata, it would be unfair to DN for the court to introduce it at this stage [37].
diff --git a/UK-Abs/test-data/summary/full/uksc-2018-0154.txt b/UK-Abs/test-data/summary/full/uksc-2018-0154.txt
new file mode 100644
index 0000000000000000000000000000000000000000..fbce1e276724db9d72cf3f7ea7bde2e3fa5ce3ea
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2018-0154.txt
@@ -0,0 +1,90 @@
+This appeal concerns whether certain rules of the Visa and Mastercard payment card schemes have the effect of restricting competition, in breach of article 101(1) of the Treaty on the Functioning of the European Union (TFEU) and equivalent national legislation.
+The appellants, Visa and Mastercard, operate open four party payment card schemes.
+Under these schemes, issuers (generally banks) issue debit and/or credit cards to cardholder customers and acquirers (also generally banks) provide payment services to merchants (such as the respondents).
+The scheme operator, Visa or Mastercard, sets the rules of the scheme and allows institutions to join as issuers and/or acquirers.
+The schemes operate as follows.
+A cardholder contracts with an issuer, which agrees to provide the cardholder with a Visa or Mastercard debit or credit card.
+It agrees terms on which they may use the card to buy goods or services from merchants, which may include a fee paid by the cardholder, an interest rate for credit, and incentives or rewards paid by the issuer to the cardholder for using the card (such as airmiles or cashback).
+Merchants contract with an acquirer, which agrees to provide services to the merchant enabling acceptance of the cards for a fee.
+This is known as the merchant service charge (MSC).
+To settle a transaction made between a cardholder and a merchant, the issuer pays the acquirer, who passes the payment on to the merchant, less the MSC.
+The rules of both schemes provide for the payment of a default interchange fee, known as the multilateral interchange fee (MIF), on each transaction, which is payable by the acquirer to the issuer.
+Though under the rules acquirers and issuers are not required to contract based on the MIF, in practice they invariably do so.
+Visa and Mastercard do not receive any part of the MIF or the MSC.
+Their remuneration comes from scheme fees paid by issuers and acquirers.
+For most of the claim period, the MIF typically accounted for some 90% of the MSC.
+Acquirers passed on all of the MIF to the merchants through the MSC, with negotiation between acquirers and merchants in respect of the MSC being limited to the level of the acquirers margin.
+Schemes such as the Visa and Mastercard schemes operate in a two sided market.
+On one side, issuers compete for the business of cardholder customers.
+On the other side, acquirers compete for the business of merchants to whom they seek to offer acquiring services.
+These proceedings concern the effect of MIFs on competition in the acquiring market.
+Article 101(1) TFEU prohibits agreements between companies that may affect trade between member states, and which have as their object or effect the restriction of competition.
+Article 101(3) provides for
+an exemption where the agreement improves the production or distribution of goods or promotes technical or economic progress while allowing consumers a fair share of the resulting benefit.
+These provisions are reflected in sections 2 and 9 of the Competition Act 1998 (the 1998 Act), respectively.
+The Visa and Mastercard schemes have previously been subject to scrutiny by competition authorities.
+In a decision dated 19 December 2007, the European Commission decided that the Mastercard MIFs applicable within the European Economic Area (EEA MIFs) breached article 101(1) (the Mastercard Commission Decision).
+Mastercard applied to the Court of Justice of the European Union (the CJEU) for annulment of the Mastercard Commission Decision, which was dismissed by a judgment of the General Court (Mastercard GC).
+Mastercard appealed this decision to the Court of Justice, which gave judgment dismissing the appeal (Mastercard CJ).
+The present appeal relates to three sets of proceedings.
+In the first, brought by Sainsburys Supermarkets Ltd (Sainsburys) against Mastercard, the Competition Appeal Tribunal (the CAT) held that Mastercard MIFs in the UK (UK MIFs) restricted competition by effect and awarded damages to Sainsburys.
+In the second, brought by Asda Stores Ltd, Argos Ltd and others, and WM Morrison Supermarkets plc (together AAM) against Mastercard, Popplewell J in the Commercial Court found that Mastercards EEA MIFs, UK MIFs and MIFs in the Republic of Ireland (Irish MIFs) did not infringe article 101 and were exempt under article 101(3) in any event.
+In the third, brought by Sainsburys against Visa, Phillips J in the Commercial Court dismissed the claim and found that Visas UK MIFs did not restrict competition in the acquiring market.
+At the request of the parties, Phillips J gave an additional judgment, in which he found that if the MIFs did restrict competition, they were not exempt under article 101(3).
+The appeals in these three sets of proceedings were heard together by the Court of Appeal, which overturned all four judgments given below.
+It held that there was restriction of competition and made various rulings as to the legal effect of article 101(3).
+The Court of Appeal remitted the article 101(3) exemption issue in all three sets of proceedings to the CAT for reconsideration in the light of the legal rulings it had made and based on the evidence adduced in all three cases.
+Visa and Mastercard seek to appeal the Court of Appeals decision on four grounds.
+AAM seek to cross appeal against the order for remittal.
+The Supreme Court unanimously upholds the conclusion of the Court of Appeal that the MIFs infringed article 101(1) and its legal rulings on article 101(3), dismissing the appeal on all grounds except the broad axe issue (defined below).
+The Court allows the cross appeal.
+The full Court gives the judgment.
+Visa and Mastercard appeal on four grounds.
+First, whether the Court of Appeal was wrong to find that there was a restriction of competition in the acquiring market contrary to article 101(1) TFEU and equivalent national legislation (the restriction issue).
+Second, whether the Court of Appeal found, and if so was it wrong in finding, that Visa and Mastercard were required to satisfy a more onerous evidential standard than that normally applicable in civil litigation, in order to establish that their MIFs were exempt under article 101(3) (the standard of proof issue).
+Third, whether the Court of Appeal was wrong to find that in order to show that consumers receive a fair share of the benefits generated by the MIFs, to satisfy the test under article 101(3), Visa was required to prove that the benefits provided to merchants alone as a result of the MIFs outweighed the costs arising from the MIFs, without taking any account of the benefits received by cardholders as a result of the MIFs (the fair share issue).
+Fourth, whether the Court of Appeal found and, if so, was it wrong in finding, that a defendant has to prove the exact amount of loss mitigated in order to reduce damages (the broad axe issue).
+Finally, AAM seek to cross appeal on the issue of whether the Court of Appeal was wrong to remit the AAM proceedings for reconsideration in relation to exemption under article 101(3) (the remission issue) [40] [41].
+The restriction issue The restriction issue raises two issues for consideration: (i) whether the Court is bound by the Mastercard CJ decision; and (ii) if not, whether that decision ought to be followed [48].
+The appellants argue that the Court of Appeal was wrong to conclude that it was bound by Mastercard CJ to find that there was a restriction of competition in the acquiring market contrary to article 101(1) TFEU and equivalent national legislation because Mastercard CJ is factually distinguishable [68] [72].
+The Supreme Court concludes that Mastercard CJ is binding and the Court of Appeal was correct so to hold.
+The essential factual basis upon which the Court of Justice held that there was a restriction on competition in Mastercard CJ is mirrored in these appeals [93] [94].
+Even if the Court were not bound by Mastercard CJ, the Supreme Court would follow it and conclude that there was a restriction on competition in the present cases.
+The effect of the collective agreement to set the MIF is to fix a minimum price floor for the MSC.
+That minimum or reservation price is non negotiable.
+Acquirers have no incentive to compete over it.
+It is a known common cost which acquirers know they can pass on in full and do so.
+Merchants have no ability to negotiate it down.
+A significant portion of the MSC is thereby immunised from competitive bargaining and is determined by collective agreement rather than by competition.
+By contrast, in the counterfactual, in which there is no MIF but settlement at par, the whole of the MSC is open to competitive bargaining and determined by competition [95] [104].
+The Court therefore dismisses the appeal on the restriction issue [105].
+The standard of proof issue On the standard of proof issue, the appellants submit that the Court of Appeal was wrong to conclude that, in relation to article 101(3), there is a specific requirement for robust and cogent evidence, which is a more onerous standard than the normal domestic civil standard of proof on the balance of probabilities, and that there is a legal requirement for facts and empirical data [106].
+It is common ground that to justify the restriction on competition the burden of satisfying that the four conditions set out in article 101(3) lies on the defendant; the present issue relates to the standard of proof [107].
+Visa and Mastercard submit that in the Commercial Court proceedings the judges adopted diverging views on the standard of proof [108].
+The Court of Appeal considered that EU law requires cogent factual and empirical evidence to satisfy article 101(3) [109].
+The Court considers that the essential complaint made by Visa and Mastercard here does not relate to the standard of proof but rather to the nature of the evidence required to meet the standard of proof in this context and, more specifically, the type of evidence needed to establish that the benefits from the MIF rules under consideration outweigh the detriments to merchants [115].
+In the Courts view, article 101(3) imposes requirements as to the nature of the evidence that can discharge the burden to establish an exemption under that provision, which is imported into domestic competition law by the 1998 Act.
+Cogent empirical evidence is required to carry out the required evaluation of the claimed efficiencies and benefits [116].
+The Court therefore dismisses the appeal on the standard of proof issue [138].
+The fair share issue On the fair share issue, Visa challenges the decision of the Court of Appeal, which interpreted Mastercard CJ as meaning that in a two sided market situation such as in the present case, if the restriction causes disadvantages overall to the consumers in the market under consideration (here the merchants in the acquiring market), those disadvantages cannot be compensated by advantages to consumers in the other market (the cardholders in the issuing market), unless the two groups of consumers are substantially the same, which is not the position here [144].
+The Supreme Court finds that the Court of Appeal arrived at the correct decision, albeit by different reasoning.
+The best available guidance from the CJEU on the application of the fair share requirement is the opinion of the Advocate General Mengozzi in Mastercard CJ, which considered that the fair share of the benefits must be received by the consumers in the same market.
+The Court therefore dismisses the appeal on the fair share issue [171] [174].
+The broad axe issue The broad axe issue relates to the degree of precision required in the quantification of mitigation of loss where a defendant to a claim for damages arising out of a breach of competition law asserts that the claimant has mitigated its loss through the passing on of all or part of an overcharge to its customers [175].
+Mastercard submitted that it must prove that the merchants passed on some of the overcharge to their customers but the quantification of the pass on did not have to be precise if precision could not reasonably be achieved [179].
+The claims of the merchants in these appeals are for compensatory damages for loss caused to them by the tortious acts of Visa and Mastercard in breach of their statutory obligations under the 1998 Act [182].
+In such circumstances, EU law allows a member state to lay down procedural rules governing actions that safeguard rights derived from EU law, provided the rules comply with the principles of equivalence and effectiveness.
+The only constraint on national law at the relevant time was the principle of effectiveness, which requires that the domestic rules do not make it practically impossible or excessively difficult to exercise rights guaranteed by EU law [188].
+In the UK, pass on is an element in the quantification of damages that is required by the compensatory principle and required to prevent double recovery through claims in respect of the same overcharge by a direct purchaser and by subsequent purchasers in a chain [196] [197].
+Visa and Mastercard have the burden of establishing that the merchants have recovered the costs incurred in the MSC but, once the defendants have raised the issue of mitigation, in the form of pass on, there is a heavy evidential burden on the merchants to provide evidence [216].
+The degree of precision requires a balance between achieving justice by precisely compensating the claimant and dealing with disputes at a proportionate cost [217].
+The law does not require unreasonable precision in the proof of the amount of the loss that the merchants have passed on to suppliers and customers [225].
+The Supreme Court does not interpret the Court of Appeal as having held that the defendants had to prove the exact amount of the loss mitigated, but insofar as the Court of Appeal required a greater degree of precision in the quantification of pass on from Visa and Mastercard than from the merchants, the Court erred.
+As a result, the appeal succeeds on the broad axe issue [226].
+The remission issue The cross appeal relates only to the AAM proceedings [227].
+AAM submit that the Court of Appeal erred in remitting the AAM proceedings for reconsideration of the exemption under article 101(3).
+Despite reaching the correct conclusion that Mastercards defence based on article 101(3) should have been dismissed, the Court of Appeal made an order remitting the AAM proceedings to the CAT, alongside the other two sets of proceedings, for reconsideration of whether Mastercards case under article 101(3) should have succeeded in whole or in part [232] [233].
+AAM submit that it was not open to the Court of Appeal to so order and to permit the issue to be re opened by Mastercard, and that it offended against the principle of finality in litigation [235].
+In the Supreme Courts judgment, the Court of Appeal was wrong to allow Mastercard to re open this issue, which it had lost after a full and fair trial.
+It offends against the strong principle of public policy and justice that there should be finality in litigation [237].
+Accordingly, AAMs cross appeal is allowed [247].
diff --git a/UK-Abs/test-data/summary/full/uksc-2018-0164.txt b/UK-Abs/test-data/summary/full/uksc-2018-0164.txt
new file mode 100644
index 0000000000000000000000000000000000000000..5d5f106272d4171c0e88fdffbe43111d9af94c94
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2018-0164.txt
@@ -0,0 +1,43 @@
+In this appeal, the Supreme Court is asked to decide whether Barclays Bank is vicariously liable for sexual assaults allegedly committed between 1968 and about 1984 by the late Dr Gordon Bates.
+Dr Bates was a self employed medical practitioner with a portfolio practice.
+His work included conducting medical assessments and examinations of prospective Barclays employees.
+Barclays required job applicants to pass a pre employment medical examination as part of its recruitment and employment procedures.
+Barclays arranged the appointments with Dr Bates and provided him with a pro forma report headed Barclays Confidential Medical Report.
+Dr Bates was paid a fee for each report; Barclays did not pay him a retainer.
+If the report was satisfactory, the applicants job offer would be confirmed, subject to satisfactory GCE examination results.
+Dr Bates conducted the (unchaperoned) medical examinations in a consulting room at his home.
+It is alleged that Dr Bates sexually assaulted the 126 claimants in this group action during their medical examinations.
+After Dr Bates died in 2009, the claimants sought damages from Barclays.
+At first instance, the judge held that Barclays is vicariously liable for any assaults that Dr Bates is proved to have perpetrated.
+The Court of Appeal agreed and dismissed Barclays appeal.
+Barclays now appeals to the Supreme Court.
+The Supreme Court unanimously allows Barclays appeal, and holds that it is not vicariously liable for Dr Bates alleged wrongdoing.
+Lady Hale gives the judgment, with which all members of the Court agree.
+Before one person can be made vicariously liable for the torts of another, two elements must be shown.
+First, there must be a relationship between the two persons which makes it proper for the law to make one pay for the fault of the other.
+Second, there must be a sufficient connection between that relationship and the wrongdoing of the person who committed the tort.
+This case concerns the first element [1].
+Historically, and leaving aside relationships such as agency and partnership, the relationships that could give rise to vicarious liability were limited to that between an employee and an employer [1].
+Accordingly, Barclays case is that, since Dr Bates was an independent contractor and not a Barclays employee, it cannot
+be held liable for his wrongdoing.
+As Lord Bridge of Harwich said in D & F Estates Ltd v Church Comrs [1989] AC 177 at 208, It is trite law that the employer of an independent contractor is, in general, not liable for the negligence or other torts committed by the contractor in the course of the execution of the work [7].
+The claimants, on the other hand, argue that the law has been broadened by the Supreme Court decisions in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 (generally known as Christian Brothers), Cox v Ministry of Justice [2016] UKSC 10 and Armes v Nottinghamshire County Council [2017] UKSC 60.
+They say that these decisions have established a more nuanced approach, in which a range of factors are considered to determine whether or not it is fair, just and reasonable to impose vicarious liability in the circumstances of the case [8].
+Lady Hale examines these three decisions in detail at [10 23], together with their precursor, the Court of Appeal decision in E v English Province of Our Lady of Charity [2012] EWCA Civ 938.
+The cases make it clear that a person can be held vicariously liable for the acts of someone who is not their employee, provided the relationship between them is sufficiently akin or analogous to employment.
+However, they do not erode the classic distinction between employment (and relationships that are akin or analogous to employment) on the one hand, and the relationship with an independent contractor on the other hand [24].
+Two cases decided by common law courts since Christian Brothers have reached the same conclusion: namely, the Court of Appeals decision in Kafagi v JBW Group Ltd [2018] EWCA Civ 1157 and the Singapore Court of Appeals decision in Ng Huat Seng v Mohammad [2017] SGCA 58 [25 26].
+In light of this, the question is, as it has always been, whether the person who committed the tort is carrying on business on his own account, or whether he is in a relationship akin to employment with the defendant.
+In doubtful cases, the five factors or incidents identified by Lord Phillips in Christian Brothers (reproduced at [15]) may help to identify a relationship which is sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability.
+But the key will usually lie in understanding the details of the relationship.
+Where it is clear that the person who committed the tort is carrying on his own independent business, it is not necessary to consider the five incidents [27].
+On the facts, Dr Bates was not at any time an employee or anything close to an employee of Barclays.
+Rather, he was in business on his own account as a medical practitioner, with a portfolio of patients and clients.
+He did work for Barclays, which made the arrangements for the medical examinations and chose the questions to which it wanted answers, but much the same would be true of window cleaners or auditors.
+Dr Bates was not paid a retainer, which might have obliged him to accept a certain number of referrals from Barclays.
+He was paid a fee for each report and was free to refuse to conduct an offered examination.
+He no doubt carried his own medical liability insurance [28].
+Lady Hale considers the relationship between the first element of the test for vicarious liability and the definition of worker in section 230(3) of the Employment Rights Act 1996.
+She concludes that asking whether or not a person is a worker who is not an employee within the definition in section 230(3)(b) may be helpful in identifying whether or not they are a true independent contractor, as opposed to being in a relationship akin to employment.
+However, she declines to align the common law concept of vicarious liability, developed for one set of reasons, with the statutory concept of worker, developed for quite a different set of reasons [29].
+Accordingly, the Court allows the appeal and holds that Barclays is not vicariously liable for any assaults that Dr Bates is proved to have perpetrated in the course of the medical examinations he carried out for Barclays [30].
diff --git a/UK-Abs/test-data/summary/full/uksc-2018-0225.txt b/UK-Abs/test-data/summary/full/uksc-2018-0225.txt
new file mode 100644
index 0000000000000000000000000000000000000000..b4cbbeb2ddc38b072ad9154fab5d85378dd6ab83
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2018-0225.txt
@@ -0,0 +1,40 @@
+These appeals concern the treatment for rating purposes of ATMs situated in supermarkets or shops owned and operated by the retailers.
+There are two main issues: (1) whether the sites of the ATMs are to be properly identified as separate hereditaments (see below for definition) from the stores; and, if so (2) who was in rateable occupation of the separate hereditaments? The appeals in this case are designated as lead appeals.
+Appeals relating to some 10,000 other sites have been stayed pending the final decision in these cases.
+The appellants in this case are the valuation officers; the respondents are the retailers, banks, and ATM operators.
+In each of these appeals the ATMs are installed and operated not directly by the retailers but under contractual arrangements with related banking companies.
+The ATMs fall into four categories: 1.
+External ATMs (e.g. Sainsburys Worcester store): these ATMs are found in the external walls of stores and can be used 24 hours a day.
+They are chained to the floor of the cash room of the stores and are connected to the stores electricity supplies.
+The money dispensed is owned by the bank but kept in the cash room of the stores. 2.
+Internal ATMs (e.g. some Tesco stores): these ATMs are available only for use within the stores and can only be accessed within the stores opening hours.
+For all other practical purposes the arrangement are the same as with the external ATMs. 3.
+Convenience store ATMs (e.g. Londis Harefield store): these ATMs are similar to other external ATMs.
+However, because of the much reduced floor space of these stores, the maintenance and loading of the ATMs lead to greater interference with the stores workings. 4.
+Moveable ATMs (the only example on appeal being at Tescos Nottingham store): these ATMs can be unbolted from the floor and moved without difficulty.
+Hereditament is defined in s.115(1) of the General Rate Act 1967 (the 1967 Act) as property which is or may become liable to a rate, being a unit of such property which is, or would fall to be, shown as a separate item on the valuation list.
+This is adopted into the current statutory scheme by s.64(1) of the Local Government Finance Act 1988 (the 1988 Act).
+As to the definition of rateable occupation, s.65(2) of the 1988 Act provides that whether a hereditament is occupied, and who is the occupier are to be determined by reference to the rules which would have applied under the 1967 Act.
+By virtue of the Valuation for Rating (Plant and Machinery) (England) Regulations 2000 (SI 2000/540) (the
+2000 Regulations), an ATM must be assumed to have no effect on the rateable value of the hereditament on which it is sited.
+At first instance the Valuation Tribunal for England held that all of the ATMs were situated on hereditaments which were rateably occupied separately from the host stores.
+This was overturned by the Upper Tribunal (Lands Chamber) which held that that, save for the moveable ATM, all of the ATMs were situated on hereditaments separate from the host stores; but that only the external ATMs were rateably occupied separately from the host stores.
+This was overturned on appeal by the Court of Appeal which held that none of the ATMs were rateably occupied separately from the host stores.
+The Supreme Court unanimously dismisses the appeals.
+Lord Carnwath gives the sole judgment, with which the other Justices agree.
+There are two aspects to the argument of whether the sites of the ATMs are capable of identification as separate hereditaments [28].
+First, with regard to the 2000 Regulations, the statutory assumption that certain plant (e.g. ATMs) has no effect on rateable value applies only to the valuation of the hereditament.
+It does not follow that this applies to the logically prior question of whether there is a hereditament that needs to be valued [33].
+Second, previous case law establishes that a hereditament is a self contained piece of property (i.e. property all parts of which are physically accessible from all other parts, without having to go onto other property) [34].
+The Upper Tribunal was entitled to find that there should be no difficulty in defining the boundaries of fixed ATMs so as to satisfy the geographical test for self containment [35], with the exception is the moveable ATM, which, as they found, had the qualities of impermanence and mobility [39].
+The second question is whether the retailers or the banks were in rateable occupation of the ATMs [40].
+A lodging house, which is treated as a single hereditament in the occupation of the landlord, is a useful example.
+While the landlords control of the premises does not interfere with, and indeed supports, the enjoyment by the lodgers of their own rooms for their own purposes, there is still only one hereditament in the occupation of the landlord [46].
+On the facts the Upper Tribunal held that the retailers' retained occupation of the ATM sites but had conferred on the banks rights which substantially restricted the retailers use of those sites.
+This was because the presence of the ATMs furthered the retailers general business purposes and the operation of the ATMs provides the retailers with an income [48].
+Both the parties derived a direct benefit from the use of the sites for the same purpose and shared the economic fruits of the activity for which the space was used.
+This is sufficient to support the conclusion that the internal ATMs remained in the occupation of the retailers [49].
+External ATMs are to be treated the same as internal ones.
+That an external ATMs is available to a wider marker at all times, and is physically separated from the other facilities in the stores, does not detract from the Upper Tribunals finding that the retailers remained in occupation of the ATMs, nor that they were any less a part of the retailers businesses.
+The difference is no greater than the difference between an internal or external ATM in a bank building.
+Thus, the external ATMs remained in the rateable occupation of the retailers [52].
diff --git a/UK-Abs/test-data/summary/full/uksc-2019-0001.txt b/UK-Abs/test-data/summary/full/uksc-2019-0001.txt
new file mode 100644
index 0000000000000000000000000000000000000000..c7f7cf195ec099d554803e23e7d709758ff2e6bd
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2019-0001.txt
@@ -0,0 +1,38 @@
+This appeal raises two important questions about the interpretation and application of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the Listed Buildings Act).
+The case concerns the correct treatment of a pair of early 18th century lead urns resting on limestone pedestals (the items).
+The items were originally commissioned for a historic garden at Wrest Park in Bedfordshire where they remained until 1939 but have been moved a number of times since then.
+In 1973 they were moved by Major Dill (Mr Dills father) to the garden of Idlicote House.
+In June 1986 the items were added to the list of listed buildings under s.54 of the Town and Country Planning Act 1971.
+There is no record of notice of the listing having been served, but in due course it was included in the register of local land charges.
+In 1993 the Mr Dill (the appellant) acquired the house and the items.
+He was not aware of the items presence on the list.
+In 2009 he sold them at auction.
+On 29 April 2015 the district council (the second respondents) wrote to the Mr Dill informing him that listed building consent had been required for the items to be removed.
+His retrospective application for consent was refused on 11 February 2016, following which on 26 April 2016 the council issued a listed building enforcement notice requiring the reinstatement of the items at Idlicote House.
+He appealed against the refusal of listed building consent and the issuing of the enforcement notice to the Secretary of State for Housing, Communities and Local Government (the first respondent).
+The grounds of appeal included the argument that the items were not buildings for the purposes of the Listed Buildings Act.
+The appeals were dismissed by a planning inspector on 19 January 2017.
+He took the view that the status of the items as buildings was established by the listing; that he could not reconsider the issue.
+Mr Dills appeal was rejected by the High Court (Singh J) and the Court of Appeal (McCombe and Coulson LJJ).
+Both courts below held that listing was conclusive of the items being buildings.
+The Supreme Court unanimously allows the appeal.
+Lord Carnwath gives the sole judgment, with which the other Justices agree.
+Whether listing is conclusive of the items being buildings for the purposes of the Listed Buildings Act It is a principle that individuals affected by a legal measure should have a fair opportunity to challenge the measure and to vindicate their rights in court proceedings.
+In applying this principle, the context of the particular statutory scheme in question is relevant [20].
+In the parallel context of breach of planning control, the statutory grounds of appeal are so wide that they include every aspect of the merits of the decision to serve an enforcement notice.
+It is hard to see why it should be any different in the context of a listed building enforcement notice.
+Indeed, the question of whether something is a building may raise difficult issues of factual judgment which an inspector appointed under the statutory scheme is more appropriately placed to decide than the High Court on judicial review [22].
+Under the statutory scheme a listed building means a building which is included in [the] list.
+It is an essential element that the thing in issue be a building.
+If it is not in truth a building at all, there is nothing to say that the mere inclusion in the list will make it otherwise.
+Section 7 prohibits the demolition of a listed building, and s.9(1) makes contravention of that prohibition a criminal offence.
+But there is nothing to prevent the accused arguing that the item demolished is not a building and so not within the definition [24].
+As such, the question of whether the thing listed is in fact a building can be considered by the inspector on a statutory appeal [25].
+The enforcement appeal must be remitted to the First Respondent for redetermination [26].
+The application for listed building consent can be dealt with by agreement [27].
+The relevant test for a building There is a need for general guidance on the legal principles in play in determining whether something constitutes a building [28].
+In Skerritts of Nottingham v Secretary of State for the Environment Transport and Regions [2000] JPL 1025 a three fold test was adopted considering size, permanence and degree of physical attachment [46].
+This case is important as the three fold test was treated as of general application in the planning context [50].
+Along with other jurisprudence, it indicated a move away from real property analogies.
+Lacking a preferable alternative, and as the same definition of building as was in issue in Skerritts was adopted in the Listed Buildings Act, it is difficult to see any reason in principle why the same test should not apply [52].
+The application of this test to the items is something to be considered in the context of the remittal of the appeal to the First Respondent [58].
diff --git a/UK-Abs/test-data/summary/full/uksc-2019-0028.txt b/UK-Abs/test-data/summary/full/uksc-2019-0028.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e24a20df171ac212284f088bceb95bdf8badb66c
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2019-0028.txt
@@ -0,0 +1,42 @@
+The appellant was arrested in the United Kingdom in 2017 and charged with one count of conspiracy to commit torture and seven counts of torture, contrary to section 134 of the Criminal Justice Act 1988 (CJA).
+The charges relate to events in the early stages of the first Liberian civil war in 1990 when an armed group, the National Patriotic Front of Liberia (NPFL), took control of parts of Liberia.
+Its leader, Charles Taylor, subsequently became President of Liberia in 1997.
+The point of law raised in the appeal, and certified by the court below, relates to the correct interpretation of the term person acting in an official capacity in section 134(1) of the CJA.
+The prosecution maintained that at the time and place of the alleged offences, the NPFL was the de facto military government with effective control of the relevant area.
+Charles Taylor and those acting for and with him, including the appellant, were therefore acting in an official capacity for, and on behalf of, the NPFL.
+The appellant denied involvement in the offences and asserted that at no time did she act in an official capacity for the NPFL, nor was the NPFL the de facto government authority in the relevant locations.
+The appellant made an application to dismiss the charges.
+The judge concluded that section 134 applies not only to entities tolerated by or acting under the authority of a government but also, in situations of armed conflict, to individuals who act in a non private capacity as part of an authority wielding entity.
+Accordingly, the judge ruled that there was a case to answer on all counts.
+The appellant appealed to the Court of Appeal, which dismissed the appeal, holding that section 134 CJA is not confined to individuals acting on behalf of a State.
+It held that section 134 covers any person who acts otherwise than in a private and individual capacity for or on behalf of an organisation or body which exercises or purports to exercise the functions of government over the civilian population, whether in peace time or during armed conflict.
+The appellant appealed the decision to the Supreme Court.
+By a majority, the Supreme Court substantially agrees with the conclusion of the Court of Appeal, but because of further evidence from the prosecutions expert produced after the judgment of the Court of Appeal, it allows the appeal to the limited extent of remitting the matter to the judge for further consideration in the light of that further evidence and the judgment of this court.
+Lord Lloyd Jones gives the majority judgment, with which Lady Hale, Lord Wilson and Lord Hodge agree.
+Lord Reed delivers a dissenting judgment.
+Section 134 CJA implements in domestic law certain obligations of the United Kingdom pursuant to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (UNCAT) [16].
+Accordingly, the wording of section 134 CJA must bear the same meaning as in article 1 UNCAT.
+The principles governing the interpretation of treaties are to be found in articles 31 and 32 of the Vienna Convention on the Law of Treaties 1969 (VCLT) [23].
+The ordinary meaning of the words describes a person performing official administrative or governmental functions and provides no suggestion that those functions must be performed on behalf of the government of a State [25].
+The object of UNCAT was not to outlaw torture but rather to strengthen the prohibition that already exists in international law [27].
+The drafting history indicates that torture committed by public officials for purposes connected with their public functions was considered different in nature from, and inherently more serious than, that inflicted by a private person.
+The conduct of rebels exercising governmental functions over the civilian population of territory under its control is properly the concern of the international community and falls within this rationale [36].
+The appellants suggested reading gives rise to a number of anomalies concerning issues of recognition of States and governments.
+The offence applies without distinction between recognised and unrecognised States.
+Similarly, resort to State practice in the recognition or non recognition of governments cannot provide a uniform standard by which the Convention can be applied [56 59].
+The majority concludes that a person acting in an official capacity in section 134(1) CJA includes a person who acts or purports to act, otherwise than in a private and individual capacity, for or on behalf of an organisation or body which exercises, in the territory controlled by that organisation or body and in which the relevant conduct occurs, functions normally exercised by governments over their civilian populations.
+Furthermore, it covers any such person whether acting in peace time or in a situation of armed conflict [76].
+The exercise of a governmental function, which is a core requirement, must be distinguished from purely military activity not involving any governmental function [77 78].
+It is necessary to look at the reality of any particular situation.
+The question is whether the entity has established a sufficient degree of control, authority and organisation to become an authority exercising official or quasi official powers, as opposed to a rebel faction or mere military force [79].
+In the light of further evidence from the prosecutions expert witness regarding the nature of the NPFLs control over the relevant territory, it is necessary for this matter to be remitted to the judge to reconsider whether there is sufficient evidence to enable a properly directed jury to conclude that the appellant was acting in an official capacity [80].
+Lord Reed dissents from the majoritys reasoning and finds the appellants arguments more persuasive [82].
+The ordinary meaning of the phrase does not extend to a member of an insurgent group engaged in armed insurrection against the government of the country.
+The core idea is that the person is acting on behalf of the State [83].
+The reference to lawful sanctions later in article 1 supports the view that it is concerned with conduct for which the State bears responsibility [84].
+If torture carried out by insurgents in territory under their de facto control falls within the scope of article 1, then article 2(1) UNCAT, which requires each State Party to take measures to prevent acts of torture in any territory under its jurisdiction, imposes an obligation with which States cannot comply, since they cannot take effective measures in relation to territory they do not control [85].
+The problem which UNCAT was intended to address was the reluctance of states to investigate and prosecute torture in which their authorities were themselves involved [87 88].
+A number of States Parties have adopted a definition in their domestic law based on the understanding that article 1 is confined to situations where the responsibility of state authorities is engaged [90].
+In relatively recent times, there appears to have been a development in the CATs interpretation of article 1.
+Accordingly, even if article 1 might now be interpreted as extending to the actions of non state entities, it does not follow that it should be interpreted in the same way when considering the criminality of actions that took place in 1990 [95 98].
+Finally, criminal legislation whose meaning is unclear should be given a restrictive rather than an expansive interpretation [98].
diff --git a/UK-Abs/test-data/summary/full/uksc-2020-0042.txt b/UK-Abs/test-data/summary/full/uksc-2020-0042.txt
new file mode 100644
index 0000000000000000000000000000000000000000..169a52555c2f72ab45aa2a8366646b7db4917ea3
--- /dev/null
+++ b/UK-Abs/test-data/summary/full/uksc-2020-0042.txt
@@ -0,0 +1,71 @@
+This appeal concerns the lawfulness of the Airports National Policy Statement (the ANPS) and its accompanying environmental report.
+The ANPS is the national policy framework which governs the construction of a third runway at Heathrow Airport.
+Any future application for development consent to build this runway will be considered against the policy framework in the ANPS.
+The ANPS does not grant development consent in its own right.
+Successive governments have considered whether there is a need for increased airport capacity in the South East of England.
+The Secretary of State for Transport (the Secretary of State) declared that the Government accepted the case for airport expansion in 2015.
+He announced that the North West Runway (NWR) scheme was the preferred scheme in October 2016.
+The UK was separately developing its policy on environmental issues and climate change.
+On 22 April 2016 the UK signed the Paris Agreement under the United Nations Framework Convention on Climate Change (the Paris Agreement).
+The UK ratified the agreement on 17 November 2016.
+The agreement sets out various targets for the reduction of greenhouse gas emissions, particularly carbon dioxide, and the reduction of temperature increases resulting from global warming (the Paris Agreement Targets).
+Two Government ministers Andrea Leadsom MP and Amber Rudd MP made statements about the Governments approach to the Paris Agreement in March 2016.
+Against this background, the Secretary of State designated the ANPS as national policy on 26 June 2018.
+Objectors to the NWR scheme, including Friends of the Earth Ltd (FoE) and Plan B Earth, challenged the lawfulness of the Secretary of States designation on a number of grounds.
+The Divisional Court dismissed all of the objectors various claims in two separate judgments.
+The Court of Appeal upheld the main parts of these judgments on appeal but allowed some of FoE and Plan B Earths grounds.
+It held the Secretary of State had acted unlawfully in failing to take the Paris Agreement into account when designating the ANPS.
+Accordingly, the ANPS was of no legal effect.
+The Secretary of State does not appeal the Court of Appeals decision.
+However, the company which owns Heathrow Airport, Heathrow Airport Ltd (HAL), is a party to the proceedings and has been granted permission to appeal to the Supreme Court.
+HAL has stated that it has already invested a large sum of money in promoting the NWR scheme and wishes to make an application for development consent to carry the project through.
+The Supreme Court unanimously allows the appeal.
+Lord Hodge and Lord Sales give the main judgment (with which Lord Reed, Lady Black and Lord Leggatt agree).
+Government policy The Secretary of State designated the ANPS under section 5(1) of the Planning Act 2008 (the PA 2008) [12].
+Section 5(7) of the PA 2008 provides that national policy frameworks such as the ANPS must give reasons for the policy adopted.
+Section 5(8) states that these reasons must include an explanation of how that policy takes account of existing Government policy relating to the mitigation of and adaptation to climate change [25].
+The Court rejects Plan B Earths argument that the reasons in the ANPS needed to refer to the Paris Agreement Targets in order to comply with section 5(8).
+The March 2016 statements of Andrea Leadsom MP and Amber Rudd MP and the formal ratification of the Paris Agreement do not mean that the Governments commitment to the Paris Agreement constitutes Government policy in the sense in which that term is used in the statute [102].
+The meaning of Government policy is a matter of interpretation of the statutory provision [101].
+The phrase needs to be construed relatively narrowly in context to allow section 5(8) to operate sensibly.
+Otherwise it would create a bear trap for civil servants and ministers, who would have to consider all ministerial statements given in any context which might be characterised as policy in a broad sense [105].
+The Court explains that Government policy in the context of section 5(8) refers to carefully formulated written statements of policy which have been cleared by the relevant departments on a Government wide basis [105].
+The epitome of Government policy is a formal written statement of established policy.
+The absolute minimum standard is a statement which is clear, unambiguous, and devoid of relevant qualification [106].
+The Court does not consider that the statements of Andrea Leadsom MP and Amber Rudd MP meet this minimum standard.
+They were not clear, did not refer to the Paris Temperature Targets at all, and did not explain how the Paris Agreement goal of net zero emissions would be incorporated into UK law [106].
+The lower courts were asked to consider whether international treaties which have been formally ratified but have not been incorporated into domestic law such as the Paris Agreement are Government policy.
+FoE and Plan B Earth did not maintain that argument in the Supreme Court.
+As the Court explains, international treaties are binding only as a matter of international law and do not have an effect in domestic law.
+Treaty commitments continue whether or not a particular Government remains in office and do not constitute a statement of Government policy for the purposes of domestic law [108].
+Section 1 of the Climate Change Act 2008 (the CCA 2008) sets a national carbon target.
+Section 4 obliges the Government to establish carbon budgets for the UK [6].
+These are already more demanding than the limits which the UK is currently obliged to have in place under the Paris Agreement [71].
+The Court holds that, at the point the ANPS was designated in June 2018, there was no established Government policy on climate change beyond that already reflected in the CCA 2008 [111].
+Sustainable development Section 10(2) and (3) of the PA 2008 requires the Secretary of State to designate national policy frameworks with the aim of contributing to the achievement of sustainable development.
+He has to take into account the environmental, economic and social objectives that make up sustainable development.
+He must, in particular, have regard to the desirability of mitigating and adapting to climate change [26],[115].
+The Court dismisses FoEs argument that the Secretary of State breached this duty on the ground that he failed to have proper regard to the Paris Agreement when designating the ANPS.
+The evidence shows that the Secretary of State took the Paris Agreement into account and, to the extent that its obligations were already covered by the measures in the CCA 2008, ensured that these were incorporated into the ANPS framework [123] [125].
+Insofar as the Paris Agreement might in future require steps going beyond the current measures in the CCA 2008, the Secretary of State took it into account but decided that it was not necessary to give it further weight in the ANPS [126],[129].
+The weight to be given to a particular consideration is a matter which falls within the discretion of the decision maker, in this case the Secretary of State.
+His exercise of discretion is lawful unless the decision made is so unreasonable that no reasonable
+decision maker would have made it [121].
+That could not be said to be the case here [128].
+The ANPS was carefully structured to ensure that when HAL applied for development consent to construct the runway, it would have to show at that stage that the development would be compatible with the up to date requirements under the Paris Agreement and the CCA 2008 measures as revised to take account of those requirements [87] [89], [123] [124].
+Post 2050 and non CO emissions The Court dismisses FoEs argument that the Secretary of State separately breached his section 10 duty by failing to have regard to, firstly, the effect of greenhouse gas emissions created by the NWR scheme after 2050 and, secondly, the effect of non CO emissions [151],[156],[166].
+The UKs policy in respect of the Paris Agreements global goals, including the post 2050 goal for greenhouse gas emissions to reach net zero, was in the course of development in June 2018 [154].
+The Secretary of State did not act irrationally in deciding not to assess post 2050 emissions by reference to future policies which had yet to be formulated [155].
+The Secretary of States department was also still considering how to address the effect of non CO emissions in June 2018 [166].
+The Court further holds that future applications for development consent regarding the NWR scheme will be assessed against the emissions targets and environmental policies in force at that later date rather than those set out in the ANPS [157], [166].
+Environmental report Section 5(3) of the PA 2008 requires the Secretary of State to produce an appraisal of sustainability in respect of frameworks such as the ANPS [28].
+This is also required by EU law.
+Council Directive 2001/42/EC of 27 June 2001 (the SEA Directive) as transposed into domestic law by the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004/1633), requires the Secretary of State to produce an environmental report in respect of major plans and proposals such as the ANPS [28].
+The report must include information about relevant environmental protection objectives established at the international, EU or domestic level and the way that they have been taken into account during the preparation of the plan as may reasonably be required (Article 5 and Annex I to the SEA Directive) [57],[58].
+The appraisal of sustainability accompanying the ANPS was intended to meet both the domestic and EU requirements for an appraisal of sustainability and environmental report respectively.
+The Court dismisses the respondents complaint that the appraisal of sustainability accompanying the ANPS was defective because it did not refer to the Paris Agreement [139].
+Emphasising that the purpose of these reports is to provide the basis for informed public consultation [137], it holds that an unduly legalistic approach should not be taken when assessing their adequacy [143].
+Whether a report provides a sound and sufficient basis for public consultation is a matter that falls within the Secretary of States discretion and the exercise of this discretion will only be found unlawful if it is one that no reasonable decision maker would have made [144].
+Were this discretion removed, public authorities might adopt an excessively defensive and counterproductive approach by including so much detail that the public would be unable to comment effectively, contrary to the object of the SEA Directive [146].
+In this instance, the targets set out in the CCA 2008, which were referred to in the appraisal of sustainability, took the UKs obligations under the Paris Agreement sufficiently into account [149].
+The Court therefore upholds this ground of appeal as well [150].
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2009-0022.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2009-0022.txt
new file mode 100644
index 0000000000000000000000000000000000000000..0219592c4c9d05c4f560570dc382a1c62f28df49
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2009-0022.txt
@@ -0,0 +1 @@
+The issue in this appeal is whether a failure by the Respondent to comply with a procedural requirement in its policy relating to the detention of foreign national prisoners results in their detention being unlawful, so as to allow the detainee to advance a claim in tort for false imprisonment. Shepherd Masimba Kambadzi is a Zimbabwean national. He entered the UK lawfully, but remained here after his leave to remain expired. In 2005, he was convicted of assault and sexual assault, sentenced to one years imprisonment and ordered to be registered as a sex offender for five years. Prior to his being released from prison, the Respondent decided to make a deportation order against the Appellant. Paragraph 2(2) of Schedule 3 to the Immigration Act 1971 (the 1971 Act) gives the Secretary of State the power to detain foreign nationals pending the making of a deportation order and the Appellant was detained under that power on 7 March 2006. On 24 August 2007, a deportation order was made against the Appellant, after which he was detained under paragraph 2(3) of Schedule 3 to the 1971 Act. In all, he was detained for 27 months until 13 June 2008, when he was granted bail. He has not yet been returned to Zimbabwe because of conditions in that country. The common law has recognised limits on the extent of the power to detain under paragraphs 2(2) and (3) of Schedule 3 to the 1971 Act (the Hardial Singh principles, set down in R v Governor of Durham Prison Ex p Hardial Singh [1984] 1 WLR 904). The Respondent had a policy which detailed how the power to detain was to be exercised. It provided, for example, that all reasonable alternatives to detention must be considered before detention was authorised. The policy also provided for detention to be subject to review at regular intervals. It specified the frequency of review and the grade of official which was to carry them out. The policy required the Appellants detention to be reviewed on five occasions during the first month and then monthly thereafter. The Appellants detention was not reviewed in accordance with that policy. By the date of the first instance hearing of this claim, he had been entitled to 22 monthly reviews of the lawfulness of his detention, in addition to the five reviews which should have taken place in the first month. His detention had been reviewed only ten times. Only six of those reviews had been conducted by officials of the required seniority and, of those six, two were flawed by material errors of fact. The substantive requirements for detaining the Appellant were, however, met throughout the period of his detention: had the Respondent carried out the reviews, it could justifiably have decided to continue to detain him. While still detained, the Appellant raised a judicial review, seeking a declaration that he was unlawfully detained and damages. At first instance, Munby J granted a declaration that the Appellant had been unlawfully detained for various periods amounting to about 19 months and gave directions for the assessment of damages, but he declined to order his release. (The Appellant was subsequently granted bail in other proceedings.) The Court of Appeal allowed the Secretary of States appeal and held that the Appellants detention had been lawful throughout. Although the Supreme Court heard the appeal in February 2010, it delayed handing down its judgment so as to be enable a court of nine Justices to consider the case of R (Lumba) v Secrteary of State for the Home Department [2011] UKSC 12. That case also considered the legality of the detention of foreign national prisoners where the Secretary of State has not complied with the terms of the published policy relating to detention.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2009-0073.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2009-0073.txt
new file mode 100644
index 0000000000000000000000000000000000000000..fa8d78314d81226763f315ab0ddf6a7c7cbfee5f
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2009-0073.txt
@@ -0,0 +1 @@
+The appellants were convicted of serious criminal offences after trials in which the victims of the offences did not give evidence: in one case because he had since died and in the other because she had run away in fear when the trial was about to commence. In each case a statement from the victim was admitted pursuant to s 116 Criminal Justice Act 2003 and placed before the jury. The appellants complained that their convictions were based solely or to a decisive extent on the statement of a witness whom they had had no chance to cross-examine. This had infringed their right to a fair trial guaranteed by articles 6(1) and 6(3) of the European Convention on Human Rights which provide: 6(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law (3) Everyone charged with a criminal offence has the following minimum rights: (d) To examine or have examined witnesses against him and to obtain the attendance and examination of The Court of Appeal had dismissed the appellants appeals against conviction, holding that the test of fairness laid down by the European Court of Human Rights in Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1 was not determinative of the results in these appeals. The United Kingdom had requested that this decision be referred to the Grand Chamber of the Strasbourg Court. On 5 June 2009 the Panel of the Grand Chamber adjourned consideration of that request pending the judgement of the Supreme Court in this case.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2009-0105.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2009-0105.txt
new file mode 100644
index 0000000000000000000000000000000000000000..0ff353378f4ea795e677a8705094a601aaba23ad
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2009-0105.txt
@@ -0,0 +1 @@
+E challenged JFSs (formerly the Jews Free School) refusal to admit his son, M, to the school. JFS is designated as a Jewish faith school. It is over-subscribed and has adopted as its oversubscription policy an approach of giving precedence in admission to those children recognised as Jewish by the Office of the Chief Rabbi of the United Hebrew Congregation of the Commonwealth (the OCR). The OCR only recognises a person as Jewish if: (i) that person is descended in the matrilineal line from a woman whom the OCR would recognise as Jewish; or (ii) he or she has undertaken a qualifying course of Orthodox conversion. E and M are both practising Masorti Jews. E is recognised as Jewish by the OCR but Ms mother is of Italian and Catholic origin and converted to Judaism under the auspices of a non-Orthodox synagogue. Her conversion is not recognised by the OCR. Ms application for admission to JFS was therefore rejected as he did not satisfy the OCR requirement of matrilineal descent. E challenged the admissions policy of JFS as directly discriminating against M on grounds of his ethnic origins contrary to section 1(1)(a) of the Race Relations Act 1976 (the 1976 Act). Alternatively, E claimed that the policy was indirectly discriminatory. The High Court rejected both principal claims. The Court of Appeal unanimously reversed the High Court, holding that JFS directly discriminated against M on the ground of his ethnic origins. JFS appealed to the Supreme Court. The United Synagogue also appealed a costs order made against it by the Court of Appeal.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2009-0118.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2009-0118.txt
new file mode 100644
index 0000000000000000000000000000000000000000..15c182a868e030ea9e85aa5d025383cf2bda7895
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2009-0118.txt
@@ -0,0 +1 @@
+Farstad Supply AS (Farstad) owned an oil rig supply vessel which was damaged by fire while berthed in harbour on 7 July 2002. At the time of the fire, the third party charterer, Asco UK Limited (Asco), had engaged the defender, Enviroco Limited (Enviroco), to clean out tanks on board the vessel. Following the fire, Farstad sued Enviroco for damages, alleging that the fire was caused by the negligence of Envirocos employees. Enviroco, as well as alleging contributory negligence against Farstads employees, sought a contribution from Asco under section 3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 (the 1940 Act). Section 3 of the 1940 Act is entitled Contribution among joint wrongdoers. Section 3(1) deals with the case where the party suing (Farstad) proceeds against two defenders in respect of loss or damage caused by both and a judgment is given against both, so that both are found jointly and severally liable in damages. Subsection (2) provides that a defender who has been held liable and pays damages to the suing party under subsection (1), has a right to recover such contribution as the court deems just from any other person who, if sued, might also have been held liable in respect of the loss or damage on which the action was founded. By clause 33(5) of the charterparty, Farstad agreed to defend, indemnify and hold harmless Asco from all liabilities resulting from damage to the vessel. If therefore Enviroco was entitled to a contribution from Asco under section 3(2) it was agreed that Asco would (at the least) be entitled to an indemnity from Farstad under clause 33(5). Whatever the result therefore, Asco would not ultimately be liable. In the Outer House, Court of Session, the Lord Ordinary held that Enviroco was not entitled to a contribution from Asco under section 3(2) of the 1940 Act. An Extra Division of the Inner House, Court of Session, allowed Envirocos subsequent reclaiming motion by a majority of 2:1. Farstad appealed to the Supreme Court to restore the decision of the Lord Ordinary. The three agreed issues to be decided on appeal were: 1) The meaning and effect of section 3(2) of the 1940 Act; 2) Whether a defence provided by a pre-existing contract (such as the charterparty) can be taken into account in determining whether a person if sued, might also have been held liable for the purposes of section 3(2); and 3) If the answer to (2) is yes, whether clause 33(5) of the charterparty has the effect that Asco is not a person who, if sued, might have also been held liable to Farstad for the purposes of section 3(2).
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2009-0125.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2009-0125.txt
new file mode 100644
index 0000000000000000000000000000000000000000..a9b5c51cf71f672cb02de11e5a0b0f54c568e440
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2009-0125.txt
@@ -0,0 +1 @@
+As originally enacted, s.33 and Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988 (the RTOA) provided that the maximum sentence that a Sheriff sitting summarily could impose in respect of the offence of driving while disqualified (s.103(1)(b) of the Road Traffic Act 1988 (the RTA)) was six months imprisonment or the statutory maximum fine or both. If the offence was prosecuted on indictment, the maximum sentence was 12 months imprisonment or a fine or both. Following a recommendation by a committee appointed to review the provision of summary justice in Scotland that the criminal jurisdiction of judges sitting summarily should be increased to a maximum of 12 months, the Criminal Proceedings etc (Reform)(Scotland) Act 2007 (the 2007 Act) was enacted by the Scottish Parliament. S.45 of that Act increased the maximum sentence that sheriffs sitting summarily could impose for the offence of driving while disqualified to 12 months imprisonment. On 17 December 2007 and 14 May 2008, respectively, in summary proceedings Sean Martin and Ross Miller were each sentenced by Sheriffs to periods in excess of six months imprisonment for driving while disqualified contrary to s.103(1)(b) of the RTA. They both sought to challenge their sentences on the basis that amending the relevant provisions of the 2007 Act were outside the legislative competence of the Scottish Parliament. The High Court of Justiciary (the HCJ) dismissed the appeals, holding that the increase in the sentencing power of Sheriffs sitting summarily by s.45 of the 2007 Act was within the Scottish Parliaments legislative competence. The HCJ gave the Appellants permission to appeal to the Supreme Court.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2009-0127.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2009-0127.txt
new file mode 100644
index 0000000000000000000000000000000000000000..a9b5c51cf71f672cb02de11e5a0b0f54c568e440
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2009-0127.txt
@@ -0,0 +1 @@
+As originally enacted, s.33 and Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988 (the RTOA) provided that the maximum sentence that a Sheriff sitting summarily could impose in respect of the offence of driving while disqualified (s.103(1)(b) of the Road Traffic Act 1988 (the RTA)) was six months imprisonment or the statutory maximum fine or both. If the offence was prosecuted on indictment, the maximum sentence was 12 months imprisonment or a fine or both. Following a recommendation by a committee appointed to review the provision of summary justice in Scotland that the criminal jurisdiction of judges sitting summarily should be increased to a maximum of 12 months, the Criminal Proceedings etc (Reform)(Scotland) Act 2007 (the 2007 Act) was enacted by the Scottish Parliament. S.45 of that Act increased the maximum sentence that sheriffs sitting summarily could impose for the offence of driving while disqualified to 12 months imprisonment. On 17 December 2007 and 14 May 2008, respectively, in summary proceedings Sean Martin and Ross Miller were each sentenced by Sheriffs to periods in excess of six months imprisonment for driving while disqualified contrary to s.103(1)(b) of the RTA. They both sought to challenge their sentences on the basis that amending the relevant provisions of the 2007 Act were outside the legislative competence of the Scottish Parliament. The High Court of Justiciary (the HCJ) dismissed the appeals, holding that the increase in the sentencing power of Sheriffs sitting summarily by s.45 of the 2007 Act was within the Scottish Parliaments legislative competence. The HCJ gave the Appellants permission to appeal to the Supreme Court.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2009-0129.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2009-0129.txt
new file mode 100644
index 0000000000000000000000000000000000000000..1e8ecf697da29b134206ab16d408652b0bf12e42
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2009-0129.txt
@@ -0,0 +1 @@
+On 9 September 2004 the appellant, Steve Allison, was convicted after trial in the High Court at Glasgow of four contraventions of section 4(3)(b) of the Misuse of Drugs Act 1971. In effect, he was found guilty of being concerned in the supplying of cocaine and three other controlled drugs. The trial judge sentenced him to 8 years imprisonment. The appellant appealed against both his conviction and sentence. On 7 November 2008 the appeal court (Lord Osborne, Lady Paton and Lord Philip) refused his appeal against conviction, leaving his appeal against sentence to be heard on a date to be fixed. One of his grounds of appeal, which was first advanced in an additional Note of Appeal, related to the record of a police interview of a John Stronach. Mr Stronach had died before the trial and the Crown introduced the interview into evidence in accordance with the procedure in section 259(5) of the Criminal Procedure (Scotland) Act 1995. Neither before nor during the trial did the Crown disclose to the defence that Mr Stronach had a number of previous convictions and that there were outstanding charges against him. One of the outstanding cases was under the Misuse of Drugs Act and related to events covered by the trial and it was therefore known to the appellants legal advisers. The Crown disclosed the previous convictions and the other outstanding charges only while the appellants appeal was pending before the appeal court. This prompted the appellant to argue that the Crowns failure to disclose to the defence the existence of all the previous convictions and outstanding charges was incompatible with his article 6 Convention rights. As a result, the defence had been unable to prepare and conduct their defence properly and appellant did not receive a fair trial. When dismissing the appellants appeal, the appeal court accepted that the failure by the Crown to disclose Mr Stronachs previous convictions had been incompatible with the appellants article 6(1) rights. Having considered the circumstances of the case, however, the appeal court was not persuaded that the Crowns failure had resulted in an unfair trial and hence a miscarriage of justice. The appeal court drew a distinction between Mr Stronachs previous convictions and the outstanding charges against him. Because of the presumption of innocence, the appeal court did not consider that the existence of outstanding charges could be of importance in connection with the preparation of a defence or with any challenge that might be mounted to the credibility of a witness.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2009-0152.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2009-0152.txt
new file mode 100644
index 0000000000000000000000000000000000000000..c3871ca81dd7bec8301b2f2de80da34c8278ae25
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2009-0152.txt
@@ -0,0 +1 @@
+The Respondent was vaccinated on 3 November 1992 with a vaccine (the Product) manufactured in France by a French company, now known as Aventis Pasteur SA (APSA). On 18 September 1992 APSA sent a consignment of the vaccine, including the Product, to its then wholly-owned subsidiary, Aventis Pasteur MSD Ltd (APMSD), in England. APMSD acted as a United Kingdom distributor for APSAs products. APMSD received the consignment on 22 September 1992 and sold part of it, including the Product, on an unknown date. The Product was eventually used to vaccinate the Respondent. On 1 August 2001 the Respondent began proceedings under section 2 of the Consumer Protection Act 1987 (CPA) against APMSD, alleging that the Product was defective and had caused him brain damage. On 16 October 2002 the Respondent issued separate proceedings against APSA also under section 2 of the CPA. Relying on section 11(3) of the Limitation Act 1980 (the LA) and Article 11 of Council Directive 85/374/EEC of 25 July 1985 (the Directive), APSA defended this action on the basis that it had been raised more than ten years after APSA had put the Product into circulation, which APSA alleged was 22 September 1992 at the latest. Broadly, Article 11 provides that there is a ten-year time-limit for initiating proceedings against the producer (as defined in the Directive) of a product. Faced with this defence, the Respondent sought an order that APSA be substituted as a defendant in place of APMSD in the proceedings against APMSD, relying on section 35(5)(b) and (6)(a) of the LA. These provisions allow a new party to be substituted for a party whose name was given in any claim made in the original action in mistake. APSA contended that, in so far as English law permitted such substitution after the expiry of the time-limit, it was inconsistent with Article 11. The High Court made a preliminary reference to the European Court of Justice (ECJ). So far as the power to substitute one producer for another as defendant was concerned, the House of Lords (to which the case eventually came) could not reach a unanimous view as to the effect of the ECJs judgment. The House of Lords therefore referred the question back to the ECJ. The answer returned by the ECJ is now clear: once ten years have passed since a producer put a product into circulation, that producer cannot be sued unless proceedings have been taken against it within the ten-year period. The Respondent now accepts that he cannot use section 35 of the LA as a basis for substituting APSA for APMSD as the defendant in the present proceedings. The Respondent submits, however, that in its judgment the ECJ indicated a different basis on which he can actually make the desired substitution, namely, that in proceedings instituted within the ten-year period against the wholly-owned subsidiary of the producer, that producer can be substituted for that subsidiary if the domestic court finds that the putting into circulation of the product in question was, in fact, determined by that producer. The dispute between the parties therefore turns on the interpretation of that part of the ECJs judgment.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2009-0167.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2009-0167.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e69de29bb2d1d6434b8b29ae775ad8c2e48c5391
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2009-0180.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2009-0180.txt
new file mode 100644
index 0000000000000000000000000000000000000000..56aa4a5b55f1c1d31917c36c74b1489e6acc4d18
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2009-0180.txt
@@ -0,0 +1 @@
+This appeal concerns the question of whether article 8 of the European Convention on Human Rights (article 8) requires UK courts to consider the proportionality of evicting an occupier from his home in claims for possession by local authorities and, if so, whether the demoted tenancy regime in the Housing Acts 1985 and 1996 (the 1985 Act and 1996 Act respectively) can properly be interpreted so as to comply with the requirements of article 8. Most residential occupiers of local authority properties are secure tenants under Part IV of the 1985 Act who cannot be evicted other than pursuant to the grounds in section 84 of the 1985 Act. The Anti-Social Behaviour Act 2003 Act gave the courts power, however, to remove this security of tenure by making a demotion order. A demoted tenancy will last for a year and then revert to being a secure tenancy, unless within that year the landlord brings possession proceedings under section 143D of the 1996 Act effectively requesting a court to end the demoted tenancy. Section 143D(2) provides that the court must make an order for possession unless it thinks that the procedure under sections 143E and 143F has not been followed. Under sections 143E and 143F of the 1996 Act, before issuing possession proceedings against a demoted tenant, the landlord must serve a notice informing the tenant, inter alia, of its decisions (with reasons why) to seek possession and, if so requested by the tenant, must carry out a review of its decision. The Appellant, Cleveland Pinnock, is a demoted tenant. He contests a possession order made against him under section 143D. Mr Pinnock has lived in a property owned by the Respondent local authority, Manchester City Council (the Council), for over 30 years with his partner, Ms Walker, and, from time to time, with all or some of their five children. The demotion order was made on the basis of a number of incidents of serious anti-social behaviour caused by all members of Mr Pinnocks family (other than Mr Pinnock himself) at or near the property. A day before the effective lapse of the demoted tenancy, the Council served a notice under section 143E seeking possession of the property and citing further incidents of anti-social behaviour by Mr Pinnocks sons which had occurred after the demotion order. A review under section 143F effectively upheld the Councils possession notice. The Council then issued a claim for possession in the Manchester County Court. Following a two-day hearing, the court granted an order for possession of the property. Mr Pinnock appealed to the Court of Appeal, who dismissed his appeal. Mr Pinnock then appealed to the Supreme Court. Mr Pinnocks main contention is that the possession order violates his right to respect for his home under article 8 as it is disproportionate. In view of the previous line of the House of Lords authorities, both the Manchester County Court and the Court of Appeal rejected Mr Pinnocks article 8 arguments on the basis that it was not open to them to review the Councils decision on the ground that it was disproportionate. Approaching the matter on a domestic law basis, both courts concluded that the Councils decision to seek possession was rational.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0039.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0039.txt
new file mode 100644
index 0000000000000000000000000000000000000000..dd698e742488bdf10bec8d6eb1ee0c2ebb8fa6bc
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0039.txt
@@ -0,0 +1 @@
+This appeal concerns the scope of the exceptions to the principle that statements made in the course of without prejudice negotiations are not admissible in evidence (the without prejudice rule). The issue is whether it is permissible to refer to anything written or said in the course of the without prejudice negotiations to help interpret any agreement which results from the negotiations. The appellants, TMT Asia Limited and others, and the respondent, Oceanbulk Shipping & Trading SA, had entered into a number of forward freight agreements. When the appellants failed to pay a sum due under those agreements, the parties entered into settlement negotiations which were expressed to be without prejudice. The negotiations resulted in a written settlement agreement in respect of the sum due. The respondent brought a claim for damages against the appellants alleging breach of a clause of the settlement agreement. In their defence the appellants sought to rely on statements made during the without prejudice negotiations in support of their interpretation of the clause. The respondent contended that reliance on the statements was precluded by the without prejudice rule. The High Court held that the evidence was admissible for the purpose of determining how the terms of the settlement agreement were to be construed notwithstanding the without prejudice rule. The majority of the Court of Appeal (Longmore and Stanley Burnton LJJ), however, allowed Oceanbulks appeal, holding that the evidence was not admissible.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0106.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0106.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e121944f66943135806d6c365e09dd25c0ac48f6
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0106.txt
@@ -0,0 +1 @@
+This appeal concerns the permissibility of a procedure whereby a claimant in employment tribunal proceedings may be excluded along with his representatives from certain aspects of those proceedings on grounds of national security. In particular the question arises as to whether such a procedure, known as a closed material procedure, is compatible with European Union law and the European Convention on Human Rights. Mr Tariq was employed as an immigration officer with the Home Office until 2006 when he was suspended and his security clearance withdrawn. The background for these decisions was the arrest of Mr Tariqs brother and cousin during an investigation into a suspected plot to mount a terrorist attack on transatlantic flights. Mr Tariqs cousin was convicted in 2008 of various offences in relation to that plot. No information suggested that Mr Tariq had himself been involved in any terrorism plot. Mr Tariq commenced proceedings in the Employment Tribunal claiming direct and indirect discrimination on grounds of race and religion. He alleged that the Home Office had relied on stereotypical assumptions about him, Muslims and individuals of Pakistani origin such as susceptibility to undue influence and that the Home Office had indirectly discriminatory policies and procedures. The Home Office denied this and stated that its decisions were based on Mr Tariqs association with individuals suspected of involvement in terrorist activities and the risk of their attempting to exert influence on him to abuse his position. Section 10(6) of the Employment Tribunals Act 1996 provides that the Secretary of State may make regulations that enable a tribunal to adopt a closed material procedure if it considers this expedient in the interests of national security. Rule 54(2) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (the Regulations) provides for the adoption of a closed material procedure if the tribunal so orders. Schedule 2 provides for the use of special advocates, whose role is to represent a claimants interests so far as possible in relation to the aspects closed to him and his representatives. The Employment Tribunal made an order for a closed material procedure, directing that Mr Tariq and his representatives should be excluded from the proceedings when closed evidence or documents were being considered. Mr Tariq appealed the order to the Employment Appeal Tribunal. The appeal was dismissed and a further appeal was dismissed by the Court of Appeal. The Court of Appeal, however, declared that Article 6 of the European Convention on Human Rights required Mr Tariq to be provided with the allegations being made against him in sufficient detail to enable him to give instructions to his legal team so that those allegations can be challenged effectively. This requirement is known as gisting. The Home Office appealed to the Supreme Court against the declaration and Mr Tariq cross-appealed against the conclusion that a closed material procedure was permissible.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0127.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0127.txt
new file mode 100644
index 0000000000000000000000000000000000000000..d03e71122f791dcbea80ed94fe3c74ee263b84fd
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0127.txt
@@ -0,0 +1 @@
+This case concerns the correct construction of refund guarantees issued by the Respondent bank in relation to six shipbuilding contracts. In May 2007 the first to sixth claimants (the Buyers) entered into shipbuilding contracts (the Contracts) with Jinse Shipbuilding Co Ltd (the Builder). Under the Contracts the Builder agreed to build and sell one vessel to each of the six Buyers. The price of each vessel was US$33.3m, which was to be paid in five equal instalments. Article X.8 of the Contracts stated that payment of the first instalment was conditional upon the Builder providing the Buyer with a satisfactory refund guarantee from a first class Korean bank. Article X.5 gave the Buyer a right to a full refund in the event that the Buyer exercised their right to reject the vessel or to terminate, cancel or rescind the Contract. Article XII.3 of the Contracts then gave the Buyers further rights to repayment of instalments paid in the event of a default by the Builder. In particular, Article XII.3 stated that if the Builder became subject to certain insolvency proceedings, the Buyer may by notice in writing to the Builder require the Builder to refund immediately to the Buyer the full amount of all sums paid by the Buyer to the Builder. As envisaged by Article X.8 of the Contracts, in August 2007 the Respondent bank issued each of the Buyers with materially identical Advanced Payment Bonds (the Bonds). Paragraph 2 of the Bonds stated that, under the terms of the Buyers Contract with the Builder, the Buyer was entitled to a refund in the event that they exercised their right to reject the vessel or to terminate, cancel or rescind the Contract. The Respondents guarantee obligation was then set out in paragraph 3, which stated that the Respondent promised to pay the Buyer all such sums due to you under the Contract. The first line of paragraph 3 explained that this promise was given [i]n consideration of your agreement to make the pre-delivery instalments under the Contract. Paragraph 4 stated that payment would be made upon receipt of a written demand from the Buyer stating that the Builder had failed to fulfil the terms of the Contract and specifying the amount claimed. Paragraph 5(v) stated that the Respondents liability under the Bonds would not be affected by any insolvency, re-organisation or dissolution of the Builder. Each of the Buyers duly paid the first instalment of US$6.66m due under the Contracts. One of the Buyers also subsequently paid a second instalment in the same amount. In 2008 the Builder experienced financial difficulties and in January 2009 it became subject to a formal debt workout procedure under the Korean Corporate Restructuring Promotion Law 2007. In April 2009 the Buyers wrote to the Respondent demanding repayment under the Bonds of the instalments that had been paid to the Builder under the Contracts. The Respondent rejected the Buyers demands on the basis that, on the true construction of the Bonds, the Respondent had not undertaken to guarantee payment of refunds arising under Article XII.3 of the Contracts. In the High Court the judge ruled in favour of the Buyers construction of the Bonds and entered summary judgment against the Respondent. On appeal, the majority of the Court of Appeal (Thorpe and Patten LJJ) overturned the High Courts ruling and entered summary judgment in favour of the Respondent. Sir Simon Tuckey gave a dissenting judgment in which he explained his reasons for preferring the High Court judges construction of the Bonds. The Supreme Court granted the Appellants leave to appeal to the Supreme Court.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0128.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0128.txt
new file mode 100644
index 0000000000000000000000000000000000000000..ae7cb13a15b9081ec478b78e267421e6e4728aa5
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0128.txt
@@ -0,0 +1 @@
+This is a case about the rights of unmarried fathers to take part in childrens hearings under Part II of the Children (Scotland) Act 1995. It raises two distinct issues. The first concerns the kind of order made in the sheriff court which would be effective to give a father the right to take part in the childrens hearing. The second concerns the compatibility of the statutory scheme for participation in the childrens hearing with the rights of the father (and indeed the child) under the European Convention on Human Rights. The appellant K is an unmarried father. He formed a relationship with JR. They cohabited and had a child, L, born in May 2002, whose birth they registered together. Their relationship subsequently broke down. After the separation, K continued to have contact with L, and was involved with her hospital appointments until at least September 2003. In about May 2004, K raised proceedings in the sheriff court seeking full parental responsibilities and parental rights and a contact order. An interim order for weekly overnight stays was made. In December 2005, JR alleged that K had abused L. In March 2006, the local authoritys social work services department referred the case to the Principal Reporter on the ground that L was in need of compulsory measures of supervision. There were childrens hearings in June and July and in August the sheriff deemed the grounds of referral proved and remitted the case to the childrens hearing. K was not entitled to attend any of these hearings as he was not a relevant person within the meaning of section 93(2)(b) of the 1995 Act. At a child welfare hearing on 27 October 2006, the sheriff made an order granting K parental rights and responsibilities to the extent that he becomes a relevant person in the childrens referral. Thereafter K attended the childrens hearings. In August 2007, the hearing imposed a condition of no contact between K and L. In January 2009 K appealed against the continuation of this condition. The Principal Reporter then challenged the sheriffs order in the Court of Session on the ground that it was incompetent. On 27 March 2009, the Lord Ordinary suspended the sheriffs order of 27 October 2006. On 21 January 2010 the First Division refused Ks appeal and his application for a declaration of incompatibility with the European Convention on Human Rights. Section 11(1) of the 1995 Act provides that the sheriff court may make an order in relation to parental responsibilities and parental rights. Subsection (7) provides that in considering whether to make an order under subsection (1), the court shall regard the welfare of the child as its paramount consideration, shall not make an order unless it would be better for the child to do so, and, where practicable, shall ascertain the childs views. These considerations are referred to as the overarching principles. Section 93(2)(b) defines relevant person as a person (including a parent) with parental responsibilities or parental rights or who appears to be a person who ordinarily has charge of, or control over, the child.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0154.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0154.txt
new file mode 100644
index 0000000000000000000000000000000000000000..b61f25fdb2c51b83179b2423cd18933b063be202
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0154.txt
@@ -0,0 +1 @@
+The issue in this case is whether an employment tribunal has jurisdiction in relation to individuals who are resident in Great Britain and employed by a British company but who travel to and from home to work overseas. The Appellant is a UK company based near Aberdeen, which is one of about 70 subsidiary or associated companies of Halliburton Inc., a US corporation. It supplies tools, services and personnel to the oil industry. Mr Ravat lives in Preston, Lancashire, and is a British citizen. He was employed by the Appellant from April 1990 until May 2006, when he was made redundant. He complains that he was unfairly dismissed. At the time of his dismissal he was working in Libya. The question is whether the employment tribunal has jurisdiction to consider his complaint. Mr Ravats employment documentation described him as a UK commuter. He worked for 28 consecutive days in Libya, followed by 28 consecutive days off at home in Preston. He was job- sharing, working back-to-back with another employee. Some of the Appellants employees were accorded expatriate status, but that was not done in Mr Ravats case because he did not live abroad full-time. His travel costs were paid for by the Appellant. The work that Mr Ravat carried out in Libya was for the benefit of a German associated company of Halliburton Inc. His salary was paid in Sterling to a UK bank account, and he paid income tax and national insurance on the PAYE basis. An employment tribunal sitting in Aberdeen held that it did have jurisdiction. That decision was set aside by the Employment Appeal Tribunal. Mr Ravat appealed, and the Inner House of the Court of Session allowed the appeal. The Appellant now appeals to the Supreme Court.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0189.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0189.txt
new file mode 100644
index 0000000000000000000000000000000000000000..42efbc01a89a36beec0e1f53ee283f0562aa95c3
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0189.txt
@@ -0,0 +1 @@
+Wolverhampton City Council (the Council), in its capacity as the local planning authority, granted planning permission for four blocks of student accommodation in proximity to a site used for storage of liquefied petroleum gas (LPG). Three of the four blocks of student accommodation had been completed, but work on the fourth had not commenced. Concerned that the LPG storage facility in the vicinity constituted a danger to human life, the Health and Safety Executive (the HSE), a statutory, non-departmental public body, applied for an order to revoke or modify the planning permission under section 97 of the Town and Country Planning Act 1990 (the Act). In refusing the application, the Council took into account its liability to pay compensation under section 107 of the Act were it to revoke planning permission in respect of all four blocks, but it did not consider whether the application should be granted only in respect of the fourth block. The HSE brought judicial review proceedings challenging, among other things, the Councils decision not to revoke or modify the planning permission. The High Court refused that part of the claim. The Court of Appeal allowed the HSEs appeal, holding that it was irrational for the Council to fail to consider whether to exercise its powers under section 97 so as to prevent the construction of the fourth block alone. The Councils decision was therefore unlawful and it was ordered to reconsider the matter. However, the Court of Appeal held by a majority (Pill LJ dissenting) that a decision under section 97 of the Act was to be taken not in isolation but within the statutory framework of the Act which imposed a liability to pay compensation if an order was made under the section. Accordingly, the Council, when reconsidering the matter, would be entitled to take into account its liability to pay compensation under section 107 of the Act. The HSE appealed to the Supreme Court against this part of the decision of the Court of Appeal: the issue being whether it is always open to a local planning authority, in considering under section 97 of the Act whether it appears to be expedient to revoke or modify a permission to develop land, to have regard to the compensation that it would or might have to pay under section 107.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0201.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0201.txt
new file mode 100644
index 0000000000000000000000000000000000000000..8e8b7eaf2efdc654d757f908136497b236cb50cd
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0201.txt
@@ -0,0 +1 @@
+This case concerns the scope for justifying direct discrimination on the ground of age and in particular a mandatory retirement age contained within a partnership agreement. The case was heard alongside Homer (Appellant) v Chief Constable of West Yorkshire Police (Respondent) [2012] UKSC 15 which concerned the scope of indirect discrimination on the ground of age. Mr Seldon joined the Respondent law firm in 1971 and was made an equity partner in 1972. In 2005 he and the other partners in the firm agreed and adopted a partnership deed which (like earlier deeds) provided that, subject to the partners agreement to the contrary, partners who attain the age of 65 had to retire from the firm by the end of the following December. Mr Seldon reached the age of 65 on 15 January 2006. Realising that he would need to continue working beyond this point, he asked the other partners to extend his tenure. The proposals were rejected on the basis of there being no sufficient business need. The partners did however offer Mr Seldon an ex gratia payment of 30,000. The Employment Equality (Age) Regulations 2006, SI 2006/1031 (the Age Regulations) came into force in October 2006. Mr Seldon informed the partners that he was considering his rights under the Age Regulations (which have since been repealed but substantially re-enacted under the Equality Act 2010). The partners then withdrew their offer of an ex gratia payment. Mr Seldon ceased to be a partner in the firm on 31 December 2006. He issued proceedings in March 2007 alleging, under the Age Regulations, that his forced retirement was an act of direct age discrimination and that the withdrawal of the offer of an ex gratia payment was an act of victimisation. Regulation 17 of the Age Regulations provides that it is unlawful for a firm to discriminate against partners by, amongst other things, expelling them from that position. The definition of discrimination is contained in regulation 3 which provides that a person (A) discriminates against another person (B) if on grounds of Bs age, A treats B less favourably than he treats or would treat other persons and A cannot show the treatment to be a proportionate means of achieving a legitimate aim. There was no dispute that the mandatory retirement age treated Mr Seldon less favourably than other partners and that this was necessarily on account of his age. The key issue was whether that treatment could be justified. The Age Regulations were intended to transpose Council Directive 2000/78/EC on equal treatment in occupation and employment into UK law. Article 2(1)(a) of the Directive states that direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation. Article 2(1)(b) provides that indirect discrimination occurs where an apparently neutral provision, criterion or practice puts people of a particular age at a particular disadvantage, unless the provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. In relation to age discrimination, however, article 6(1) allows member states to provide that differences of treatment on grounds of age shall not constitute discrimination if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary. Regulation 3 does not distinguish between direct and indirect discrimination for the purpose of justification. The Employment Tribunal accepted that the retirement policy pursued three legitimate aims: (i) giving associates an opportunity of partnership within a reasonable time, and thereby an incentive to remain with the firm; (ii) facilitating workforce planning by knowing when vacancies were to be expected; (iii) limiting the need to expel underperforming partners, thus contributing to a congenial and supportive culture within the firm. The Tribunal found that the mandatory retirement age of 65 was a proportionate means of achieving the three legitimate aims and therefore rejected the discrimination claim (but upheld the victimisation claim). The Employment Appeal Tribunal held that the Employment Tribunal had failed to consider whether the aims could have been met by a retirement age other than 65 and remitted the case on that point alone. The Court of Appeal dismissed Mr Seldons appeal. He then appealed to the Supreme Court asserting that: first, it is wrong to elide the tests for justification in direct and indirect discrimination cases and that the aims pursued by the firm were not legitimate in the context of the former; and secondly, that the treatment had to be justified not only in respect of the firm generally but in its particular application to Mr Seldon.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0231.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0231.txt
new file mode 100644
index 0000000000000000000000000000000000000000..2d9ca7de302075ed9d40ae3d0581984160e8d12c
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0231.txt
@@ -0,0 +1 @@
+The Appellants are all employed to work in various capacities on offshore oil and gas installations. The Respondents are their employers. With the exception of one, all were contracted to work to a pattern of two weeks offshore followed by two weeks onshore (called a field break). Whilst offshore the Appellants generally worked a 12 hour shift each day during which rest breaks were taken. This was followed by 12 hours off duty living offshore on the installation. They did not have any days off while they were offshore. For the most part the Appellants were free from work-related obligations during the entire period of their field breaks. The Working Time Regulations 1998 (the WTR) set out in domestic law the provisions of the Working Time Directive 2003 (the WTD), which lays down minimum health and safety requirements for the organisation of working time, with minimum rest periods consisting of daily rest, weekly rest and annual leave (Articles 3 to 7 WTD). Article 7 of the WTD and Regulation 13 of the WTR provide that the worker is entitled to paid annual leave of at least four weeks (at the time the Appellants made their claims). Regulation 15 of the WTR provides that a worker may take leave to which he is entitled on such days as he chooses by giving notice to his employer, but that the employer may require him to take leave on particular days. The issue in this case is whether the period spent onshore should count towards the workers entitlement to four weeks paid annual leave. The Appellants issued proceedings contending that annual leave, properly construed, means release from what would otherwise have been an obligation to work, and therefore the WTR required the Respondents to permit them to take annual leave from periods when they would otherwise be required to work on the offshore installation. The Respondents maintained that the time onshore is itself a rest period, as it is not working time, so the paid annual leave entitlement was discharged by two weeks onshore within the shift pattern. The Employment Tribunal held that leave in Regulation 13 of the WTR involved a release from what would otherwise have been an obligation to work. That decision was set aside by the Employment Appeal Tribunal, which held that the time available during field breaks, after allowing for compensatory rest to take account of the fact that the Appellants worked offshore without a weekly rest period, was more than sufficient to cover the entitlement to annual leave. The Inner House of the Court of Session refused the Appellants appeal, holding that what the WTD required was that there be provided to the worker within the year at least four remunerated weeks in which he was free from working commitments. There was nothing in the WTD to suggest that employers might not arrange matters so that annual leave was taken during the school holidays or such similar industrial equivalent.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0236.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0236.txt
new file mode 100644
index 0000000000000000000000000000000000000000..9562a8973bc2feb8e6e24460e8eb7844a17926ee
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0236.txt
@@ -0,0 +1 @@
+The three respondents were part of a vitamins cartel which the European Commission found by Commission Decision COMP/E-1/37.512 of 21 November 2001 had infringed Article 81 of the EC Treaty (now Article 101 TFEU). Accordingly, the Commission imposed fines on the cartelists who were given until 31 January 2002 to appeal against; (a) the infringement decision; and/or (b) the fine. Only BASF exercised that right of appeal and they did so only in respect of the amount of the fine; no appeal was made against the Commissions decision that an infringement had occurred. On 15 March 2006 the Court of First Instance (CFI) reduced the amount of the fine and the deadline for any further appeal expired shortly afterwards (on 25 May 2006) without any further appeal being lodged. Section 47A of the Competition Act 1998 (the 1998 Act) provides that following an infringement finding by the Commission, any person who has suffered loss as a result of that infringement may bring a follow-on claim for damages. On 12 March 2008 the four appellants sought to bring such claims against the respondents before the UK Competition Appeal Tribunal (CAT). The respondents argued that the appellants were precluded from doing so on the grounds that the two-year limitation period for the bringing of such claims had expired with the result that the claims were time-barred. The respondents contended that the limitation period started running on the date on which BASFs time for appealing against the Commissions infringement decision expired (31 January 2002) with the result that the limitation period expired two years later (31 January 2004) and the proposed claims were therefore time-barred. The appellants rejected this interpretation contending instead that the limitation period commenced on the date on which BASFs time for appealing the CFIs decision on the level of the fine expired (25 May 2006) with the result that the limitation period expired on 25 May 2008 and the proposed claims were in time. The CAT held that the appellants interpretation was correct and that the proposed follow-on damages claims had been brought in time. The Court of Appeal (CA) granted the respondents permission to appeal and allowed the appeal holding that the plain and ordinary meaning of the statutory language drew a clear distinction between infringement decisions and penalty decisions. Only infringement decisions were of relevance in determining when the limitation period started to run. The CA further held that the CAT had no power to extend the time in which follow-on damages claims could be brought and EU law did not override the UK time bar or require that a power to extend time be held to exist. The appellants appealed to the Supreme Court on the grounds that the operation of the two-year limitation period caused legal uncertainty and thus made it excessively difficult for the appellants to pursue follow-on damages claims against the respondents in time in breach of EU law.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0244.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0244.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e2073016caf96ef3eb60a8880a97149827765641
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2010-0244.txt
@@ -0,0 +1 @@
+This appeal concerns the liability of a local authority to pay the costs of a party to care proceedings. The proceedings related to two children, whose parents were separated. The local authority applied for a care order under section 31 (2) Children Act 1989 in response to the making of allegations by the children that they had suffered sexual abuse by their father and six other men, in which the fathers parents (the grandparents) had colluded. The six men and the grandparents were joined to the care proceedings as interveners. The judge conducted a lengthy fact-finding hearing, as a result of which he exonerated five of the six men and the grandparents of any such abuse. The interveners were entitled to be represented at the hearing. The six men qualified for legal aid but the grandparents did not. They incurred costs of 52,000, which they met by taking out a mortgage on their house. At the end of the hearing they applied for an order that the local authority should pay their costs on the ground that they had succeeded in defending the allegations made against them. It was accepted that the local authority had acted reasonably in bringing the proceedings. The judge refused their application on the basis that it was not usual to order costs in a child case against a party unless that partys conduct had been unreasonable or reprehensible. The Court of Appeal allowed the grandparents appeal, holding that costs could be awarded in respect of discrete fact-finding hearings. Although it rarely hears appeals relating solely to costs, the Supreme Court granted permission to appeal because of the important point of principle raised by the appeal, on terms that, whatever the result, the grandparents entitlement to recover their costs as a result of the order of the Court of Appeal would not be disturbed.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0011.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0011.txt
new file mode 100644
index 0000000000000000000000000000000000000000..754d89b00b76ef783c213218eb0517e3e637dd14
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0011.txt
@@ -0,0 +1 @@
+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]
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0024.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0024.txt
new file mode 100644
index 0000000000000000000000000000000000000000..a8a20cb881fd9765d7d6a83ec1e3619f286aa076
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0024.txt
@@ -0,0 +1 @@
+The issue is whether the ban on the entry for settlement of foreign spouses or civil partners unless both parties are aged 21 or over, contained in paragraph 277 of the Immigration Rules, was a lawful way of deterring or preventing forced marriages. Paragraph 277 of the Immigration Rules [Paragraph 277] was amended with effect from 27 November 2008 to raise the minimum age for a person either to be granted a visa for the purposes of settling in the United Kingdom as a spouse or to sponsor another for the purposes of obtaining such a visa from 18 to 21. The purpose of the amendment was not to control immigration but to deter forced marriages. A forced marriage is a marriage into which at least one party enters without her or his free and full consent through force or duress, including coercion by threats or other psychological means. Mr Quila, a Chilean national, entered into a fully consensual marriage with Ms Jeffery, a British citizen. Mr Aguilar Quila applied for a marriage visa before the amendment took effect, but his application was refused as his wife was only 17 and a sponsoring spouse had to be 18. By the time that Ms Jeffrey had turned 18 the amendment was in force and the Home Office refused to waive it. Consequently, Mr Quila and his wife were forced to leave the UK initially to live in Chile (his wife having had to relinquish a place to study languages at Royal Holloway, University of London) and subsequently to live in Ireland. Bibi (as she invited the Court to describe her) is a Pakistani national who applied to join her husband, Mohammed, a British citizen, in the UK. Bibi and Mohammed had an arranged marriage in Pakistan in October 2008, to which each of them freely consented. Their application was refused as both parties were under 21. The Respondents claims for judicial review of the decisions were both rejected in the High Court. The Respondents successfully appealed to the Court of Appeal, which declared that the application of Paragraph 277 so as to refuse them marriage visas was in breach of their rights under Article 8 of the European Convention on Human Rights and Fundamental Freedoms 1950 [the ECHR]. The Secretary of State has appealed to the Supreme Court.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0046.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0046.txt
new file mode 100644
index 0000000000000000000000000000000000000000..d806ab40ca8c621e21731cc8714b1a139b1ebed5
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0046.txt
@@ -0,0 +1 @@
+The issue arising in the appeal is whether the appellants have satisfied the threshold conditions set out in section 1(6) of the Equal Pay Act 1970 (the Act) in order to bring claims alleging that they are employed under less favourable terms and conditions than certain male employees of the respondent council who do work of equal value. The appellants have to establish that the male employees are in the same employment as they are, notwithstanding the fact that they are employed on different terms and conditions at different establishments from the appellants. The appellants are 251 classroom assistants, support for learning assistants and nursery nurses employed during school term-time in the respondents schools under terms contained in a national collective agreement known as the Blue Book. The appellants wish to compare their terms and conditions with those enjoyed by a variety of full time manual workers employed by the respondent, as groundsmen, refuse collectors, refuse drivers and a leisure attendant (the comparators), under a different collective agreement known as the Green Book. The comparators are entitled to a substantial supplement on top of their basic pay, whereas the appellants are not. The issue of whether the appellants are in the same employment as the comparators was determined in a pre-hearing review. The Employment Tribunal ruled that they are, because the appellants could show that if the comparators were employed at their establishments they would be employed under broadly similar terms to those under which they are employed at present. The Employment Appeal Tribunal allowed an appeal by the respondent on the ground that the appellants could not show that there was a real possibility that the comparators could be employed in schools to do their existing jobs. The Court of Session held that this was the wrong test, but that the appellants still failed on the evidence to show that if the comparators were to be based at schools they would be employed on Green Book terms and conditions. The appellants appealed to the Supreme Court.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0089.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0089.txt
new file mode 100644
index 0000000000000000000000000000000000000000..8de5ba8b686a770a221a51cd675d8b1759bbad6c
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0089.txt
@@ -0,0 +1 @@
+These appeals raise important and difficult issues in the field of equity and trust law. Both appeals raise issues about the so-called rule in Hastings-Bass, which is concerned with trustees who make decisions without having given proper consideration to relevant matters which they ought to have taken into account. In addition, the appeal in Pitt raises issues as to the courts jurisdiction to set aside a voluntary disposition on the ground of mistake. In 1985, Mr Mark Futter made two settlements. Initially, both settlements had non-resident trustees, until, in 2004, he and Mr Cutbill, both resident in the United Kingdom, were appointed. In 2008, on the advice of solicitors, Mr Futter and Mr Cutbill, in exercise of a power of enlargement, distributed the whole capital of the first settlement to Mr Futter, and, in exercise of a power of advancement, distributed 36,000 from the second settlement to Mr Futters three children in equal shares. In so doing, they overlooked the effect of section 2(4) of the Taxation of Chargeable Gains Act 1992 (TCGA), which resulted in a large capital gains tax liability for Mr Futter, and a modest one for his children. Mr Futter and Mr Cutbill, as trustees of the two settlements, applied to have the deed of enlargement and the deeds of advancement declared void, which Norris J held them to be on the basis of the rule in Hastings-Bass. In 1990, Mr Derek Pitt suffered very serious head injuries in a road traffic accident, resulting in his mental incapacity. Mr Pitts claim for damages for his injuries was compromised by a court-approved settlement in the sum of 1.2m. Mr Pitts solicitors sought advice from Frankel Topping, a firm of financial advisers. They advised that the damages should be settled in a discretionary settlement. This was done in 1994 by the establishment of the Derek Pitt Special Needs Trust (the SNT). The SNT could have been established without any immediate inheritance tax liability, but it was not. The report from Frankel Topping made no reference whatsoever to inheritance tax. In 2007, Mr Pitt died. His personal representatives, who were also two of the trustees of the SNT, commenced proceedings to have the SNT set aside, which the deputy judge ordered on the basis of the rule in Hastings-Bass. However, in so doing, he indicated that, even if there had been a mistake of any sort, it was only a mistake as to the consequences of the transaction, rather than its effect, and so he would not have granted rescission of the SNT. The Revenues appeals against these decisions were heard together in the Court of Appeal. Lloyd LJ (with whom Longmore and Mummery LJJ agreed) (i) allowed the appeals, principally on the ground that the rule in Hastings-Bass was not applicable, because the respective trustees acted reasonably in reliance on what they supposed to be competent professional advice, (ii) dismissed Mrs Pitts appeal based on mistake, on the basis that rescission for mistake could only be granted if there was a serious mistake as to nature of a transaction, rather than its consequences, and a mistake as to tax consequences was not a sufficient mistake for the purposes of rescission.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0115.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0115.txt
new file mode 100644
index 0000000000000000000000000000000000000000..298fe1bcf0c73af9bd3800283210db4388c5d809
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0115.txt
@@ -0,0 +1 @@
+Section 6(1) of the Prosecution of Offences Act 1985 (the 1985 Act) recognises the right of a private person to institute and conduct a private prosecution where the duty of the Director of Public Prosecutions (the DPP) to take over them does not apply. But the right is subject to s.6(2) of the 1985 Act which confers upon the DPP a power, even when not under a duty to take over the proceedings, nevertheless to do so at any stage. In determining whether to do so, it is his policy to apply certain criteria, including in particular a criterion relating to the strength of the evidence in support of the prosecution. Prior to 23 June 2009, the DPP asked himself whether there was clearly no case for the defendant to answer. If such was his conclusion, he took over the prosecution and discontinued it; otherwise, subject to the application of further criteria, he declined to take it over. However, on 23 June 2009 he changed his policy in relation to the evidential criterion. In that regard it became his policy to take over and discontinue a private prosecution unless the prosecution was more likely than not to result in a conviction (the reasonable prospect test). In August 2010 the Appellant instituted two private prosecutions. On 16 November 2010 the DPP, acting by the Crown Prosecution Service (the CPS), took over and discontinued the prosecutions. The Appellant applied for judicial review of the decision to do so. His case was that the reasonable prospect test, adopted by the DPP on 23 June 2009, is unlawful. It is common ground that the application of the DPPs former evidential criterion would not have led to him to take over and discontinue the prosecutions. The Divisional Court of the Queens Bench Division of the High Court dismissed the application and the Appellant now appeals.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0117.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0117.txt
new file mode 100644
index 0000000000000000000000000000000000000000..c6d8a8abac5b8e0413e76058cf406bd87c927da7
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0117.txt
@@ -0,0 +1 @@
+This appeal concerns the interpretation of a provision of the Housing Act 1996 (the 1996 Act) relating to the duties of local housing authorities to provide accommodation for those who are, or claim to be, homeless or threatened with homelessness. Section 175 of the 1996 Act states, in essence, that a person is homeless if he has no accommodation available for his occupation in the United Kingdom or elsewhere. According to section 176, accommodation is to be regarded as available for a persons occupation only if it is available for occupation by him together with any other person who normally resides with him as a member of his family, or any other person who might reasonably be expected to reside with him [3]. The phrase available for his occupation is relevant not only to establishing whether a person is homeless for the purposes of the 1996 Act, but also to identifying what duties a local authority owes to a person who is, or claims to be, homeless [4]. In 2004, Camden London Borough Council accepted that it owed a duty under the 1996 Act to provide accommodation to Ms Sharif, her father (a man in his 60s with certain health problems) and her sister (aged 14), on the basis that Ms Sharif was homeless. They were initially accommodated by the Council in a hostel and later moved to a three-bedroom house owned by a private sector landlord. In 2009, the Council asked Ms Shariff, her father and her sister to move to two units on the same floor of a block of flats in North London. Each unit comprised a single bed-sitting room with cooking facilities, plus a bathroom. The two units were separated by only a few yards. It was envisaged by the Council that Ms Sharif and her sister would share one unit, and the other unit (suitable only for one person) would be used by her father [8]. Ms Sharif refused the offer, saying that the accommodation was not suitable because her fathers medical condition required them to live in the same unit of accommodation [9]. Ms Sharif requested a review of the Councils decision, but the Councils reviewing officer concluded that the accommodation offered was suitable [9]. Ms Sharif appealed to the London Central County Court on a number of grounds, including the suggestion that the accommodation was not suitable and that section 176 of the 1996 Act precluded the Council from offering Ms Sharif and her family two separate units of accommodation [10]. The County Court dismissed the appeal [11]. There was no further appeal on the issue of the suitability of the accommodation. However, the Court of Appeal reversed the County Courts decision on the basis that the words together with in section 176 require a homeless family to be housed in the same unit of accommodation [12]. The Council appealed to the Supreme Court.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0196.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0196.txt
new file mode 100644
index 0000000000000000000000000000000000000000..9724d5bcd6778dda10d69d6f8cf401681c379d51
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0196.txt
@@ -0,0 +1 @@
+In 2005, the Assets Recovery Agency (ARA) obtained an interim receiving order over certain properties acquired by Mrs Szepietowskis husband with money allegedly obtained through drug trafficking, mortgage fraud and concealment from the Revenue. In November 2006, the ARA began civil proceedings against Mr and Mrs Szepietowski (the Szepietowskis), seeking to confiscate 20 properties on the basis that they constituted recoverable property within section 266 of the Proceeds of Crime Act 2002 (the 2002 Act). These properties included Ashford House (the Szepietowskis home), two properties known as Thames Street, two properties known as Church Street, and two properties known as Claygate. These properties were all registered in the name of Mrs Szepietowski and had been charged to RBS for a debt of about 3.225m (the RBS debt). On 16 January 2008, the Szepietowskis and the ARA settled the proceedings on terms contained in documents attached to a consent order (including a Settlement Deed). Pursuant to the terms of the Settlement Deed, (a) Thames Street and Church Street were sold and the proceeds paid over in part satisfaction of the RBS debt, and (b) in September 2009, Mrs Szepietowski granted a charge over Claygate (the 2009 Charge) to the Serious Organised Crime Agency (SOCA, as the ARA had by this point become) entitling SOCA to recover a sum of up to 1.24m from the proceeds of sale of Claygate. The 2009 Charge (a) was a second charge over Claygate as it was subject to the RBS debt, and (b) contained various provisions including a statement that Mrs Szepietowski had no personal liability to pay any money to SOCA. In late 2009, Mrs Szepietowski sold Claygate for 2.44m and, once the net proceeds of sale of Claygate had been used to pay off the RBS debt, all that was left to satisfy SOCAs rights under the 2009 Charge was 1,324.16. SOCA then sought to invoke the right to marshal against Ashford House. The right to marshal classically applies when there are two or more creditors, each of whom is owed a debt by the same debtor, but one of whom has security in the form of a charge on more than one property (the first mortgagee), whilst the other has security in the form of an inferior charge on only one of those properties (the second mortgagee). If the first mortgagee chooses to enforce his charge against the property which secures both debts (the common property), the second mortgagee is able to enforce his charge against the property which only secured the first mortgagees debt (the other property).  SOCA argued that, as the proceeds of sale of Claygate (the common property, which was subject to the charge in favour of RBS and the 2009 Charge in favour of SOCA) were used to pay off what was due to RBS, it was entitled under the marshalling principle to look to Ashford House (the other property, which was only subject to the charge in favour of RBS), in order to obtain payment of the sum which it would have obtained on the sale of Claygate if RBS had sold Ashford House and used the proceeds of sale to clear the RBS debt. Mrs Szepietowski argued that SOCA should not be allowed to marshal because (a) the 2009 Charge did not secure a debt from her to SOCA and/or (b) the provisions of the Settlement Deed and the 2009 Charge, coupled with the circumstances in which they were executed, demonstrated that marshalling was precluded. Henderson J held that SOCAs marshalling claim was well-founded ([2010] EWHC 2570 (Ch)) and the Court of Appeal agreed ([2011] EWCA Civ 856).
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0233.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0233.txt
new file mode 100644
index 0000000000000000000000000000000000000000..142c5bdb2f6514fb35eaf1401749152367af56af
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0233.txt
@@ -0,0 +1 @@
+The question in this appeal is whether there is a requirement for the prosecution to prove a defendant had an absence of belief that the person they were having sexual intercourse with was over the age of 13, before they can be convicted of an offence of unlawful carnal knowledge of a girl under the age of 14. The appellant, who was 17 years old at the time, had sexual intercourse with a 13 year old girl. Initially the girl informed her mother of this fact but told her the intercourse had not been consensual. The appellant was arrested. Subsequently however, the girl withdrew the allegation and admitted the sex had been consensual. As a result, the appellant was charged with the offence of having unlawful carnal knowledge of a girl under the age of 14 contrary to section 4 of the Criminal Law Amendment Acts (Northern Ireland 1885-1923) (the 1885 Act) - a serious offence that carries a maximum of life imprisonment. The appellant was represented and pleaded guilty to the charge at Belfast Crown Court in 2004. He was sentenced to 3 years detention in a Young Offenders Centre, suspended for 2 years. He had pleaded guilty on the understanding that it was no defence to a charge under section 4 for the defendant to show he believed the girl was over the age of 13. Following his conviction the appellant received advice from different solicitors and launched an appeal, arguing that the Crown was indeed required to prove that the appellant did not believe the girl was over 13 years old. The appellant argued before the Northern Ireland Court of Appeal that section 4 was silent as to such a defence but in view of the legislative history and its seriousness, it must be presumed that there is a mental element to the offence. The appellant relied on the general presumption that criminal offences require the prosecution to prove mens rea i.e. some intent on the part of the accused, unless explicitly excluded by the language of the statute or necessarily inferred from the language of the offence. Such a presumption is hard to displace, especially in relation to serious offences. The Court of Appeal rejected the appellants arguments and held that no defence of reasonable or honest belief existed. All that was necessary was for the prosecution to prove the accused had had sex with a girl who was actually under the age of 14. The appellant thus appealed to the Supreme Court.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0244.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0244.txt
new file mode 100644
index 0000000000000000000000000000000000000000..adc4014063c98c24027776db8ee4063b0c4ae332
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0244.txt
@@ -0,0 +1 @@
+On 20 December 2010, the Financial Services Authority (FSA), acting in pursuance of its public duties under sections 3 to 6 of the Financial Services and Markets Act 2000 (FSMA), made a without notice application for a freezing injunction against Sinaloa Gold and PH Capital Invest under section 380(3) of FSMA. The FSA alleged that both companies were involved in promoting the sale of shares in Sinaloa without proper authorisation and an approved prospectus and that PH Capital Invest had breached FSMA in various other respects. Schedule B to the injunction stated that the FSA gave no cross-undertaking in damages. However, under Schedule B, the FSA undertook to cover both costs and losses incurred by third parties as a result of the injunction. The undertaking in respect of third party losses was inadvertent and the FSA applied to have it removed. Barclays - with whom Sinaloa Gold plc had six bank accounts - intervened to oppose this application. The application to have the undertaking removed was refused in the High Court. However, this decision was reversed in the Court of Appeal. The effect of the Court of Appeals decision was to preserve the undertaking in respect of third party costs but eliminate the undertaking in respect of third party losses. Barclays appealed to the Supreme Court.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0260.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0260.txt
new file mode 100644
index 0000000000000000000000000000000000000000..d80953ae8131e130b3b865a97a3c425f1184d801
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2011-0260.txt
@@ -0,0 +1 @@
+These appeals raise questions of some significance arising out of the interrelationship of the statutory schemes relating to the protection of employees pensions and to corporate insolvency. In order to protect employees from the adverse consequences of an under-funded occupational pension scheme, the Pensions Act 2004 (the 2004 Act) introduced a financial support direction (FSD) regime. This enables the Pensions Regulator in specified circumstances (i) to impose, by the issue of an FSD to some or all of the other group companies (known as targets), an obligation to provide reasonable financial support to the under-funded scheme of the service company or insufficiently resourced employer, and (ii) to deal with non-compliance with that obligation by imposing, through a Contribution Notice (a CN), a specific monetary liability payable by a target to the trustees. Many UK registered members of the Lehman group of companies and of the Nortel group of companies have gone into insolvent administration. One of those Lehman group companies entered into service contracts with, and ran a pension scheme for the benefit of, employees who worked for other group members. The Nortel group included a company which had a pension scheme, and which was insufficiently resourced to fund that scheme. The pension scheme (the Scheme) in each case was a final salary scheme, which appears to be, and to have been for some time, in substantial deficit. The Pensions Regulator subsequently initiated machinery under the 2004 Act to require certain other group members the target companies to provide financial support for the Scheme. That machinery has been held up so it can be decided how the administrators of a target company should treat that companys potential liability under the FSD regime (in due course the liability under a CN) in a case where the FSD is not served until after the company has gone into administration (or into insolvent liquidation). Specifically, would the liability under such a requirement rank (a) as an expense of the targets administration, (b) pari passu (i.e. equally) with the target companies other unsecured creditors, or (c) as neither? Under option (a) the liability would rank ahead of the unsecured creditors, and may well be paid in full; under option (b) it would rank equally with those creditors; under option (c) it would rank behind them, and would probably be worthless. Briggs J and the Court of Appeal concluded that option (b) was not open to them, and preferred option (a) to option (c).
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0007.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0007.txt
new file mode 100644
index 0000000000000000000000000000000000000000..93e990a5143f2551b8fbee976fccfc941a82b87b
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0007.txt
@@ -0,0 +1 @@
+The issue in the appeal is: what are the statutory consequences if the fingerprints of a defendant have been taken in a police station in Northern Ireland by an electronic device for which the legislation required approval from the Secretary of State, when such approval has never been given? In particular, is any evidence which makes use of the fingerprints taken on such a device inadmissible at the defendants trial? The appellants were charged with theft in Northern Ireland. The offence was alleged to have taken place on 6 October 2007. A stack of building materials had been found removed from the owners depot apparently ready for collection by thieves. The appellants were found nearby in a van but said they were waiting there innocently. They were arrested and their fingerprints were taken at the police station using an electronic fingerprint scanner called Livescan. This machine has been commonly used by police in the UK, including in Northern Ireland, for a number of years. A fingerprint matching Elliotts left thumb was found on packaging of the building materials. Article 61 of the Police and Criminal Evidence (Northern Ireland) Order sets out the powers of the police to take fingerprints without consent. Between 1 March 2007 and 12 January 2010 article 61(8B) provided that where a persons fingerprints are taken electronically, they may only be taken using such devices, as the Secretary of State has approved for the purpose of electronic fingerprinting. Due to an oversight no approval was ever given to any device (including Livescan) until it was belatedly provided on 29 March 2009. Article 61(8B) was later repealed by the Policing and Crime Act 2009. Therefore at the time the fingerprints were taken from the appellants there was no approval for the Livescan machine in breach of article 61 (8B). The appellants were convicted at trial and no issue over the fingerprints was taken. After the lack of approval for the Livescan device was noticed the appellants appealed to the County Court which, after a full re-hearing, declared the fingerprint evidence inadmissible and acquitted the appellants. The Public Prosecution Service appealed to the Court of Appeal who allowed the appeal and reinstated the appellants convictions. The appellants primary argument before the Supreme Court and the courts below was that the lack of approval for the Livescan device meant that the fingerprints obtained with it were automatically inadmissible at the appellants trial.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0025.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0025.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e69de29bb2d1d6434b8b29ae775ad8c2e48c5391
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0072.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0072.txt
new file mode 100644
index 0000000000000000000000000000000000000000..5a41adf109a08edb298d12417bf8e9a21985c560
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0072.txt
@@ -0,0 +1 @@
+Where an application for a European Arrest Warrant (EAW) is made, and the defendant has been convicted and sentenced in the requesting state, section 2(6)(e) of the Extradition Act 2003 (the Act) requires the EAW to include particulars of the sentence(s) imposed. This enables the requested court to determine whether the sentence is equal to or exceeds the minimum sentence required to constitute an extradition offence. Section 65(3)(c) of the Act applies to offences in the requesting state which would constitute an offence in the UK if it occurred there, provided that a minimum sentence of four months was imposed. Many EU states provide for the aggregation of successive sentences imposed on different occasions to produce a single sentence for all of the offences committed, which usually has the effect of reducing the overall period of imprisonment. Earlier case law establishes that where each of the original sentences is for conduct that satisfies all the other requirements of an extradition offence, it is enough for a EAW to specify the cumulative sentence rather than all of the individual sentences. This appeal concerns the converse: what happens if a EAW specifies only the original sentences, but after it has been issued they are aggregated and their totality reduced? Lukasz Zakrzewski was convicted on four occasions in Poland of various offences of dishonesty or violence. His sentences were initially suspended and then activated by further offences or breaches of probation terms. On 24 February 2010, Mr Zakrzewski having absconded, the Regional Court in Lodz issued a EAW against him based on these four convictions specifying the sentences passed. He was then arrested in England on 28 September 2010 and brought before the City of Westminster Magistrates Court the same day. However, as he was facing further criminal charges in England, the extradition proceedings were adjourned. During this adjournment, Mr Zakrzewski applied to the District Court of Grudziadz in Poland to have the four sentences aggregated. The court duly aggregated them and on 19 April 2012 imposed a cumulative sentence of 22 months imprisonment (as opposed to the aggregate of 45 months of the original sentences). When the extradition proceedings resumed, Mr Zakrzewski claimed that the aggregation order meant the EAW was no longer gave the particulars required by s.2(6)(e) because the only relevant sentence now included was the cumulative sentence. The warrant was therefore invalid, and no longer gave proper, fair or accurate particulars. District Judge Rose rejected Mr Zakrzewskis arguments and granted an extradition order. However, this was overturned by Lloyd Jones J in the High Court on the basis that the EAW must relate to the current operative sentence in force not to earlier individual ones subsumed in an aggregated order to enable the requested court to know the length of imprisonment the requesting state had ordered. The Regional Court in Lodz appealed to the Supreme Court.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0109.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0109.txt
new file mode 100644
index 0000000000000000000000000000000000000000..32ccf7e7d440e8c260d4ac9692ab59ae440e308c
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0109.txt
@@ -0,0 +1 @@
+Mr and Mrs Stott decided to take a holiday in Zante, Greece, in September 2008. Mr Stott is paralysed from the shoulders down and a permanent wheelchair user. He has double incontinence and uses a catheter. When travelling by air, he depends on his wife to manage his incontinence, help him to eat, and change his sitting position. Mr Stott booked return flights with Thomas Cook Tour Operators Ltd (Thomas Cook), a tour operator and air carrier. He telephoned Thomas Cooks helpline twice, informing them that he had paid to be seated with his wife, and was assured that this would happen. However, on arrival at check-in for the return journey, Mr and Mrs Stott were told that they would not be seated together. They protested, but were eventually told that the seat allocations could not be changed. Mr Stott had difficulties in boarding the aircraft, and was not sufficiently assisted by Thomas Cook staff. He felt extremely embarrassed, humiliated, and angry. He was eventually helped into his seat, with his wife sitting behind him. This arrangement was problematic, since Mrs Stott could not properly assist her husband during the three hour and twenty minute flight. She had to kneel or crouch in the aisle to attend to his personal needs, obstructing the cabin crew and other passengers. The cabin crew made no attempt to ease their difficulties. Mr Stott, assisted by the Equality and Human Rights Commission, brought a claim under the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007 (SI 2007/1895) (the UK Regulations), which implement EC disability rights regulations (the EC Regulations). The UK Regulations enable civil proceedings in UK courts for breaches of the EC Regulations, and state that compensation awarded may include sums for injury to feelings. The EC Regulations require Community air carriers (among other things) to make reasonable efforts to provide accompanying persons with a seat next to a disabled person. Mr Stott claimed that Thomas Cook had breached this duty, and sought a declaration and damages for injury to his feelings. Thomas Cook argued that it had made reasonable efforts and that the Montreal Convention (the Convention), an international treaty which governs the liability of air carriers in international carriage by air, precluded a damages award for injury to feelings. Under Articles 17 and 29 of the Convention, damages can only be awarded for harm to passengers in cases of death or bodily injury. The judge at trial found that Thomas Cook had breached the UK Regulations, and made a declaration to that effect. However, he held that the Convention prevented him from making any damages award to Mr Stott. The Court of Appeal agreed. Mr Stott appealed, arguing that his claim was (i) outside the substantive scope of the Convention, since the Convention did not touch the issue of equal access to air travel which are governed by the EC Regulations and (ii) outside the temporal scope of the Convention, since Thomas Cooks failure to make all reasonable efforts began before Mr and Mrs Stott boarded the aircraft. He relied on EU cases discussing a different EU Regulation which required compensation and assistance for passengers in the event of cancellations and delays: the European Court had held that this Regulation was not incompatible with the Convention. The Secretary of State for Transport intervened to support Mr Stotts claim on the second (temporal) ground.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0124.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0124.txt
new file mode 100644
index 0000000000000000000000000000000000000000..37e51893a3ab0b8ba751b66a46b00ddb4183e0f1
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0124.txt
@@ -0,0 +1 @@
+The issue in the appeal is whether the definition of terrorism in the Terrorism Act 2000 includes military attacks by non-state armed groups against national or international armed forces in a non-international armed conflict. Mr Gul was convicted by a jury of five counts of disseminating terrorist publications, for which he was sentenced to five years imprisonment. The offence was created by section 2 of the Terrorism Act 2006, which defines terrorist publications as including publications which are likely to be understood as a direct or indirect encouragement to the commission, preparation, or instigation of acts of terrorism. Terrorism is defined in section 1 of the Terrorism Act 2000, as the use or threat of action, inside or outside the United Kingdom, (a) involving serious violence against a person, involving serious damage to property, endangering another persons life, creating a serious risk to public health or safety, or designed to seriously interfere with seriously disrupt an electronic system; (b) designed to influence a government or intergovernmental organization or to intimidate the public or a section of the public; and (c) made for the purpose of advancing a political, religious, racial, or ideological cause. The publications in question included videos which Mr Gul posted on YouTube showing (i) attacks by members of al-Qaeda, the Taliban, and other proscribed groups on military targets in Chechnya, and on the Coalition forces in Iraq and in Afghanistan, (ii) the use of improvised explosive devices against Coalition forces, (iii) excerpts from martyrdom videos, and (iv) clips of attacks on civilians, including the 11 September 2001 attack on the United States. These videos were accompanied by commentaries praising the bravery, and martyrdom, of those carrying out the attacks, and encouraging others to emulate them. The Court of Appeal refused Mr Guls appeal against conviction and sentence. His appeal to the Supreme Court was based on a challenge to the conclusion of the Court of Appeal (arising from a direction given by the trial judge following a request from the jury) that the definition of terrorism included military attacks by non-state armed groups against national or international armed forces in their territory.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0143.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0143.txt
new file mode 100644
index 0000000000000000000000000000000000000000..1f8c73414e15383fc43231243ddf2b92d9c59716
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0143.txt
@@ -0,0 +1 @@
+This appeal concerns the principle that an individual extradited to the UK to face trial may only be tried for crimes allegedly committed before the extradition if those crimes form the basis of the extradition request (the specialty principle), and its application to contempt of court proceedings. In 2009 Mr OBrien came under investigation on suspicion of involvement in a large-scale scheme to defraud investors, commonly known as a boiler room fraud. On 24 September 2009 the Common Serjeant of London made a restraint order against him under section 41 of the Proceeds of Crime Act 2002 (POCA). This order required Mr OBrien (amongst other things) to make disclosure of his assets, not to remove assets from England and Wales, and to return to England and Wales within 21 days any moveable asset in which he had an interest outside England and Wales. The order contained a penal notice, warning Mr OBrien that if he disobeyed the order he could be found to be in contempt of court. Mr OBrien disobeyed the order and fled to the United States. On 18 December 2009 the Common Serjeant found that he was in contempt and issued a bench warrant for his arrest. Mr OBrien was traced to Chicago. The Serious Fraud Office (SFO) sought his extradition to face charges relating to the alleged boiler room fraud. Mr OBrien consented to his extradition on 8 October 2010. Since there was a concern that the outstanding bench warrant could complicate the extradition, the SFO applied to the Common Serjeant to set aside the bench warrant, which he did on 18 November 2010. Mr OBrien was returned to the UK on 2 December 2010. He was arrested, charged with various fraud offences, and remanded in custody. Meanwhile the SFO had reviewed its concerns about the contempt allegation, and re-applied to the Common Serjeant for Mr OBriens committal for contempt. Mr OBrien challenged the courts jurisdiction to hear the application. That challenge was rejected by the Common Serjeant and by the Court of Appeal. Mr OBrien now appeals to the Supreme Court on two grounds, namely that: On the correct construction of the Extradition Act 2003, the specialty rule applies to any extradition offence, defined as conduct occurring in the UK and punishable under the law of the UK with imprisonment or detention for 12 months or more (by reference to ss. 148 and 151A of the Extradition Act 2003 (the 2003 Act)). Mr OBriens contempt satisfies these criteria and so falls within the specialty rule; or In the alternative, Mr OBriens contempt of court is a criminal contempt constituting a criminal offence, and so falls within the specialty rule.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0162.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0162.txt
new file mode 100644
index 0000000000000000000000000000000000000000..9e24b81d8501520dd94e0f4f74e6ee7f6694467d
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0162.txt
@@ -0,0 +1 @@
+This appeal is the lead case in a number of appeals concerned with liability to pay National Insurance Contributions (NICs) and, in particular, with the interpretation of the phrase in section 6(1) of the Social Security Contributions and Benefits Act 1992, [w]here in any tax week earnings are paid to or for the benefit of an earner. The case focuses on the meaning of the word earnings in that phrase, and whether it covers a payment by the appellant, FML, of an employers contribution to a Funded Unapproved Retirement Benefits Scheme [1]. The scheme was set up by FML by trust deed on 11 April 2002 to provide certain benefits to its employees and directors. The trust provided that upon a members retirement from service the trustees were to apply the accumulated fund in providing the member with a pension for life or such other relevant benefits as might be agreed. On the members death the trustees were to realise the accumulated fund and apply the net proceeds to or for the benefit of a defined discretionary class of beneficiary. On the same day, Mr McHugh, a shareholder and director of FML, asked to become a member of the scheme. He informed the trustees that he wished them to exercise their discretion in favour of his wife in the event of his death. FML made an initial cash contribution to the scheme of 1,000 and transferred to it Treasury Stock with the nominal value of 162,000, both for Mr McHughs benefit. He has been the only member of the scheme and has received no relevant benefits from it, as defined in section 612 of the Income and Corporation Taxes Act 1988 [2]. He was 54 years old when the transfers were made, and FML specified his retirement age to be his 60th birthday. However as he controlled FML this date could be brought forward for the purposes of the scheme [3]. The question was whether the transfers were payments of earnings to or for the benefit of Mr McHugh within the meaning of section 6 of the 1992 Act. It was agreed that the payment was for his benefit, but was it earnings? HMRC decided that it was, and that FML was therefore liable to pay Class 1 NICs on the value of the transfer. FMLs appeal to the Upper Tribunal was successful, but the Court of Appeal reinstated HMRCs decision [4-5]. FML appealed to the Supreme Court. Departing from its position before the Court of Appeal, FML accepted that earnings had a wider meaning than emoluments in income tax legislation. It submitted that the payment of earnings under section 6 did not extend to the employers transfer to a trust of funds or assets in which the earner had at the time of the transfer only a contingent interest [6].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0179.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0179.txt
new file mode 100644
index 0000000000000000000000000000000000000000..0d8ddf32a1fe1790e2ac8a88a2e14c98b5ca7632
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0179.txt
@@ -0,0 +1 @@
+The proceedings arose out of the admitted and continuing failure of the United Kingdom since 2010 to secure compliance in certain zones with the limits for nitrogen dioxide levels set by European Union law, under Directive 2008/50/EC. In a judgment of 1 May 2013, the Supreme Court referred certain questions to the Court of Justice of the European Union (CJEU) concerning the interpretation of articles 13, 22 and 23 of the Directive. Article 13 laid down limit values for the protection of human health; in respect of nitrogen dioxide, certain limits may not be exceeded from the relevant date, i.e. 1 January 2010. Article 22 provided a procedure for a member state to apply to the European Commission to postpone the compliance date for not more than five years in certain circumstances and subject to specified conditions. Article 23 imposed a general duty on member states to prepare air quality plans for areas where the limits were exceeded. By the second paragraph of article 23(1), in cases where the attainment deadline (was) already expired, the air quality plans must set out appropriate measures, so that the period for which the member state would be in exceedance of the limits can be kept as short as possible. Where an application was made under article 22, the air quality plan had to include the information listed in Annex XV, section B of the Directive. This included information on all air pollution abatement measures considered, including five specified categories of measures, such as for example (d) measures to limit transport emissions. The required contents of air quality plans prepared under article 23 were in Annex XV section A. ClientEarth argued that the UK was required by article 22 to apply for postponement in respect of all zones where compliance with the air quality limits could not be met by the original deadline. The Secretary of State had not applied to postpone the deadline for some of the UKs non- compliant zones, but instead in 2011 had produced air quality plans under article 23, predicting compliance would not be achieved until 2025. The Secretary of State argued that it was not required to apply for postponement under article 22. The Supreme Court in its judgment of 1 May 2013 declared the UK to be in breach of article 13, and referred the following questions to the CJEU: (1) Where in any zone of the UK the state has not achieved conformity with the nitrogen dioxide limit values by the 2010 deadline, is a member state obliged to seek postponement of the deadline in accordance with article 22? (2) If so, in what circumstances (if any) may a member state be relieved of that obligation? (3) To what extent (if at all) are the obligations of a member state which has failed to comply with article 13 affected by article 23? (4) In the event of non-compliance with articles 13 or 22, what remedies must a national court provide? The CJEU answered these questions in a judgment dated 14 November 2014 (C-404/13). The present proceedings considered what further orders, if any, should be made by the Supreme Court.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0181.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0181.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e810cd2f37e101fae0bb76dae80a8cf09dcb24e2
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0181.txt
@@ -0,0 +1 @@
+The issue in this appeal is whether AA falls within the definition of an adopted child in paragraph 352D of the Immigration Rules. AA was born in Somalia on 21 August 1994. Her family were torn apart by events in Somalia and her father was killed in the mid-1990s. AA became separated from her mother and other siblings during the fighting. Around the end of 2002, she went to live with her brother-in-law, Mohamed. He had a daughter, Fadima and step-daughter, Amaani. Mohamed took AA into his family home under the Islamic procedure known as Kafala (described as a process of legal guardianship akin to adoption). In October 2007, Mohamed left Somalia and came to the UK in November 2007. He was granted asylum on 21 July 2008. The three girls, AA, Fadima and Amaani, were left with a maternal aunt in Mogadishu. An application for entry into the UK was made for all three girls. Entry clearance was granted to Fadima and Amaani who came to the UK in January 2010. It was refused for AA who remained in Addis Ababa pending her appeal. Her appeal was heard in the First-tier Tribunal (FTT) on 3 September 2010. Exert evidence, accepted by the tribunal, was to the effect that, although adoption as such does not exist under Islamic law, under the legal institution known as Kafala a person may become a protg and a part of the household of an adult; and that this only falls short of a full blown adoption in that such adoptee does not enjoy a right of inheritance under Islamic law. The FTT allowed the appeal both under paragraph 352D and article 8 ECHR (right to respect for private and family life). The Secretary of State appealed. The Upper Tribunal (UT) allowed the Secretary of States appeal in respect of paragraph 352D but confirmed the FTTs decision under article 8. On 2 May 2012, the Court of Appeal confirmed the UTs decision. On 14 May 2012, AA was given entry clearance and she arrived in the UK on 4 June 2012. AA appeals to the Supreme Court in respect of paragraph 352D of the Immigration Rules.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0247.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0247.txt
new file mode 100644
index 0000000000000000000000000000000000000000..db8938dcb4fb32ba3c54eb0da2492ece4d10216e
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0247.txt
@@ -0,0 +1 @@
+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.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0249.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0249.txt
new file mode 100644
index 0000000000000000000000000000000000000000..55158b176460da0e7456989ea438fafac14eddc0
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0249.txt
@@ -0,0 +1 @@
+These proceedings concern three sets of claims which arise out of the deaths of three young British servicemen and the serious injuries of two other young British servicemen in Iraq. The first set (the Challenger claims) arise from a friendly fire incident involving British tanks which caused the death of Cpl Stephen Allbutt and the serious injury of Lance Cpl Daniel Twiddy and Tpr Andrew Julien. They are brought in negligence and allege failures by the Ministry of Defence (the MoD) to properly equip the tanks involved and to give soldiers adequate recognition training. The second set (the Snatch Land Rover claims) arise from the deaths of Pte Phillip Hewett (son of the claimant Susan Smith) and Pte Lee Ellis (father of the claimant Courtney Ellis and brother of the claimant Karla Ellis) by the detonation of improvised explosive devices level with the Snatch Land Rovers in which the soldiers were travelling. The claimants all claim that the MoD breached the implied positive obligation in article 2 of the European Convention on Human Rights (the Convention) to take preventive measures to protect life in the light of the real and immediate risk to life of soldiers who were required to patrol in Snatch Land Rovers. The third (the Ellis negligence claim) is brought by Courtney Ellis in negligence and is based on various alleged failures on the part of the MoD [1 12]. The MoD argued that the Snatch Land Rover claims under article 2 of the Convention should be struck out because at the time of their deaths Pte Hewett and Pte Ellis were not within the jurisdiction of the UK for the purposes of the Convention, and because on the facts as pleaded the MoD did not owe a duty to them at the time of their deaths under article 2. It also argued that the Challenger claims and the Ellis negligence claim should all be struck out (1) on the principle of combat immunity (which operates to exclude liability for negligence in respect of the acts or omissions of those engaged in active operations against the enemy), and (2) because it would not be fair, just or reasonable to impose a duty of care on the MoD in the circumstances of those cases [13]. The High Court and Court of Appeal considered these arguments. The effect of the Court of Appeals judgment was that: (1) the Snatch Land Rover claims under article 2 of the Convention should be struck out because the deceased were outside the jurisdiction of the UK for the purposes of the Convention and there was no basis for extra-territorial jurisdiction; and (2) the Challenger claims and the Ellis negligence claim should proceed to trial [15]. The following issues were before the Supreme Court. (1) In relation to the Snatch Land Rover claims, whether at the time of their deaths Pte Hewett and Pte Ellis were within the jurisdiction of the UK for the purposes of the Convention. (2) If they were, whether and if so, the extent to which article 2 imposes positive obligations on the UK with a view to preventing the deaths of its own soldiers in active operations against the enemy. (3) In relation to the Challenger claims and the Ellis negligence claim, whether the allegations of negligence should be struck out because they fall within the scope of combat immunity or because it would not be fair, just or reasonable to impose a duty to take care to protect against death or injury in the circumstances [16].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0250.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0250.txt
new file mode 100644
index 0000000000000000000000000000000000000000..669b79902403627dc604ebe26aaa9d50bfce6cc7
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2012-0250.txt
@@ -0,0 +1 @@
+Mr George was born in Grenada in 1984 and came to the UK in 1995 at the age of 11. In March 2000 he was granted indefinite leave to remain (ILR) in the UK. He has a partner whom he has known since school, with whom he has a daughter born in 2005. He and his partner do not live together: his daughter however sees him reasonably often and sometimes stays with him. Since 2000, Mr George has been convicted of seven different offences, including supply of cocaine and possession with intent to supply heroin and cocaine. The Secretary of State decided that Mr Georges deportation would be conducive to the public good. From that point he was, by s. 3(5) Immigration Act 1971 (the 1971 Act), liable to deportation. Notice was served upon him, in January 2007, that a deportation order was to be made against him. He unsuccessfully challenged that decision and, on 24 April 2008, a deportation order was made in respect of him. The effect of that deportation order, by section 5(1) of the 1971 Act, was to invalidate his ILR. Mr George made a further application to the Secretary of State arguing that his deportation to Grenada would be unlawful under s. 6 Human Rights Act 1998 as it would breach his right to private and family life under Article 8 ECHR. The Secretary of State rejected that application, but an immigration judge allowed his appeal on 31 March 2009. The effect of that judgment was to revoke his deportation order. The question in this case is Mr Georges immigration status following the making and revocation of the deportation order. Did Mr Georges ILR, invalidated by the deportation order, revive when the deportation order was itself revoked? Mr Georges solicitors considered that it did, and called on the Secretary of State to confirm this. The Secretary of State however considered that it did not, and instead granted six months discretionary leave to remain (DLR) on 2 August 2013. On the expiry of that leave the Secretary of State granted a further three years DLR. Mr George judicially reviewed the decision not to reinstate ILR. He argued that on the true interpretation of s. 5(1)-(2) Immigration Act 1971, his ILR was reinstated by the revocation of the deportation order. Subsection (1) provides that a deportation order shall invalidate any leave to remain given [to a person] before the order is made or while it is in force. Subsection (2) provides that a deportation order may at any time be revoked by a further order of the Secretary of State, and shall cease to have effect if he becomes a British citizen. He further argued that an interpretation of s. 5 by which his ILR was revived was supported by the fact that other immigration statutes, particularly s. 76 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act), required that reading of the 1971 Act. Mr Georges claim was dismissed in the High Court, but his appeal to the Court of Appeal was allowed. The Secretary of State appealed to the Supreme Court.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0006.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0006.txt
new file mode 100644
index 0000000000000000000000000000000000000000..283934edb1ebbaa5ba28f23ff2abfe55f144621b
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0006.txt
@@ -0,0 +1 @@
+On 6 December 2010 the Crown Prosecution Service applied to the Crown Court for restraint orders under section 41 of the Proceeds of Crime Act 2002 (POCA) against two individuals, and restraint and receivership orders (under s. 48 POCA) against Eastenders Group. Eastenders Group, of which the individuals were the joint owners, was a holding company for a number of trading cash and carry retail outlets. These orders were sought because the CPS was conducting a covert investigation into a suspected fraud on HMRC, allegedly carried out through Eastenders Group companies. A POCA restraint order prevents named persons from dealing with their own assets until the order is discharged. A receivership order appoints a receiver to manage the assets of the company subject to the restraint order. The CPS sought to have Mr Barnes, a partner in a well-known firm of accountants, appointed as Eastenders Groups receiver under a letter of agreement between the CPS and Mr Barnes. The letter of agreement suggested that Mr Barnes would be remunerated from Eastenders Group property. The restraint and receivership orders were made by the Crown Court judge after a short hearing. Mr Barnes was appointed and began to manage the Group. On 23 December 2010, the Eastenders Group sought to have its orders discharged, but the judge refused. The Group appealed to the Court of Appeal, heard on 25 January 2011. On 26 January 2011 the Court of Appeal quashed the orders over the Group. They held that the orders should never have been made: there was no good arguable case that the Group assets should be regarded as the individuals assets, and 95% of the business of the Group was demonstrably legitimate. However, during the period of the receivership, the receiver had incurred costs and expenses of 772,547. This included significant sums for site security, legal expenses and the receivers fees. The receiver applied to the Crown Court for permission to draw his remuneration and expenses from Eastenders Group assets. The application was refused by Underhill J, who held that requiring the companies to pay would breach the Groups right to peaceful enjoyment of its possessions under Article 1 of Protocol 1 to the European Convention on Human Rights (A1P1), and so would be unlawful under s. 6 Human Rights Act 1998 (s. 3 HRA 1998). He went on to hold that it was possible to interpret POCA (by s. 3 HRA 1998) to give the court the power to require the CPS to pay the receivers remuneration and expenses. The CPS appealed to the Court of Appeal. The majority of the Court of Appeal upheld Underhill Js decision that the Groups rights under A1P1 would be infringed by an order entitling the receiver to draw his remuneration from its assets on the basis that the order was insufficiently foreseeable. Laws LJ, dissenting on that point, would have allowed the receiver to draw his remuneration from Eastenders assets. The Court was unanimous that there was no basis under POCA or the HRA 1998 for the CPS to be required to pay the receivers remuneration and expenses. The receiver appealed to the Supreme Court.
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diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0023.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0023.txt
new file mode 100644
index 0000000000000000000000000000000000000000..3890cc87a969999add7c82b2e3c0a89309ce680e
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0023.txt
@@ -0,0 +1 @@
+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.
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diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0036.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0036.txt
new file mode 100644
index 0000000000000000000000000000000000000000..c6a32236d14219a3d54765dbf51ba6581a162d98
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0036.txt
@@ -0,0 +1 @@
+This appeal concerns the liability for Value Added Tax (VAT) of a company known as Med, which marketed hotel accommodation in the Mediterranean and the Caribbean through a website. An hotelier who wished his hotel to be marketed by Med had to enter into a written agreement with Med (the Accommodation Agreement). When a potential customer identified a hotel at which she wished to stay, she would book a holiday through a form on the website, which set out standard booking conditions (the website terms). The customer had to pay the whole of the sum she agreed with Med to pay for the holiday (the gross sum) before arriving at the hotel. However, Med only paid the hotel a lower sum (the net sum) for the holiday after it had ended. VAT is an EU tax levied on the supply of goods or services. By article 2.1(c) of Directive 2006/112/EC (the Principal VAT Directive) VAT is liable to be levied on the supply of services for consideration within the territory of a Member State by a taxable person acting as such. Article 45 states that The place of the supply of services connected with immovable propertyshall be the place where the property is located. The application of article 45 to travel agents could result in their having to be registered in many member states, and so articles 306-310 contain a special scheme relating to travel agents. Article 306 differentiates between two categories of travel agent, namely (a) those who deal with customers in their own name and use supplies of goods or services provided by other taxable persons, in the provision of travel facilities and (b) those who act solely as intermediaries (referred to for convenience as, respectively, article 306.1(a) and article 306.1(b)), and provides for a special VAT scheme for transactions carried out by travel agents who fall within article 306.1(a). The Commissioners for Her Majestys Revenue and Customs (HMRC) assessed Med for VAT on the basis that Med was a travel agent that deals with customers in its own name within the meaning of article 306.1(a). On that basis, it was agreed that Med would be liable for VAT on the gross sum paid by the customer to Med. Med challenged this assessment, on the ground that it was a travel agent acting solely as an intermediary within the meaning of article 306.1(b). On this approach, any VAT would be due to the Greek taxation authorities. The First-Tier Tribunal upheld HMRCs analysis. Morgan J allowed Meds appeal, but HMRCs subsequent appeal to the Court of Appeal was successful.
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diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0057.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0057.txt
new file mode 100644
index 0000000000000000000000000000000000000000..73b027ce6df7d85a4cfddff6d375b94511ae828a
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0057.txt
@@ -0,0 +1 @@
+The present appeal is from Guernsey, where there is no equivalent of the 2006 Act. The common laws of England and Guernsey are agreed to be identical in this area. The principal issues are: (1) whether the reasoning in Barker still applies in Guernsey [8], and means that an employers liability insurer covering an employer for only part of the period during which the employer exposed a victim is liable for only a pro rata part of the employers liability to the victim [9], and (2) if Barker does not apply and the position in Guernsey is now the same as in the UK under the 2006 Act, whether such an insurer is liable in the first instance for the whole of the employers liability to the victim, and (3) if so, whether the insurer has pro rata rights to contribution from any other insurer of that employer and/or from the employer in respect of any periods not covered by the insurer [9]. There are parallel issues regarding such an insurers responsibility for defence costs incurred in meeting the victims claim.  For 27 years from 1961 to 1988, Mr Carr was negligently and consistently exposed to asbestos dust by his employer, Guernsey Gas Light Co Ltd (GGLCL). He later contracted mesothelioma, from which he died [10]. Before his death, he sued the Respondent (IEG), as successor in title of GGLCL, and recovered compensation of 250,000 damages and interest plus 15,300 towards his costs. IEG also incurred defence costs of 13,151.60 [11]. During the 27 years of exposure GGLCL had two identifiable liability insurances, one with Excess Insurance Co Ltd, for two years from 1978 to 1980, the other with Midland Assurance Ltd, for six years from 1982 to 1988 [12]. The Appellant (Zurich), as successor to Midlands liabilities, maintains that it is only liable to meet 22.08% of IEGs loss and defence costs, based on the fact that Midland only insured GGLCL for 6/27ths of the 27-year period of exposure [14]. The trial judge ordered Zurich to meet 22.08% of the compensation but 100% of defence costs. The Court of Appeal ordered Zurich to pay 100% of both the compensation and defence costs [15]. Zurich appeals in relation to both compensation and defence costs.
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diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0083.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0083.txt
new file mode 100644
index 0000000000000000000000000000000000000000..c8321cecc472afc57a2452c2f60da0e1a91b4a51
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0083.txt
@@ -0,0 +1 @@
+This case relates to the liquidation of Letham Grange Development Company Limited (LGDC) and the question whether its sale of a hotel and adjoining golf courses (the subjects) was a gratuitous alienation, ie. a property transaction conducted for significantly less than market value. Section 242 of the Insolvency Act 1986 provides that an alienation made by a company within two years of its winding up is challengeable by the liquidator. On such a challenge being brought, the court shall grant decree of reduction setting the alienation aside, unless, in particular, the alienation was made for adequate consideration. The section contains a proviso preserving any right or interest acquired in good faith and for value from or through the transferee in the alienation. [3] The subjects were bought by LGDC in November 1994 for just over 2m. In February 2001, it sold them to the second appellant, NSL. The consideration recorded in the disposition was 248,100. LGDC went into liquidation in December 2002. The value of the subjects at the time was estimated at about 1.8m. In January 2003, NSL granted a standard security (a charge) over the subjects in favour of Foxworth Investments Limited. Later that year, the liquidator of LGDC, Mr Henderson, began proceedings against NSL seeking the reduction of the 2001 disposition on the grounds that the sale was a gratuitous alienation, an unfair preference or a fraudulent preference. He obtained a decree by default in 2009 when NSL failed to be represented at the proof (trial) [2]. The liquidator then brought these proceedings, seeking reduction of Foxworths standard security. He argues that Foxworth cannot bring itself within the section 242 proviso since it knew at the time when it obtained the standard security that LGDC was in liquidation and that the sale by LGDC to NSL was open to challenge under section 242. The relevant decisions of all three companies were made by their common director and directing mind, Mr Liu [3]. The appellants claim that, in addition to the sale price recorded in the disposition, NSL had also assumed debts of 1.85m owed by LGDC to Mr Liu and his family, so that the sale was not a gratuitous alienation. This, they say, brought Foxworth within the scope of the proviso, having obtained the standard security in good faith and for value [4]. The Lord Ordinary, Lord Glennie, rejected the liquidators case that the sale was a gratuitous alienation. The liquidator sought to establish that the documentation relating to the assumption of the LGDC debts had not been prepared on the dates it bore, but had been produced subsequently to support a false case that the assumption formed part of the consideration for the sale of the subjects [22]. But Lord Glennie accepted Mr Lius evidence on the point [23]. Lord Glennies decision was reversed on appeal by an Extra Division of the Inner House of the Court of Session, which found that the judge had erred in law. In the absence of a finding that the assumption of any debts by NSL had occurred at the time of the sale and had therefore formed part of the consideration, he had not been entitled to hold that there had been adequate consideration or (given Mr Lius knowledge of the circumstances) that Foxworth had obtained the standard security in good faith [6]. The Extra Division also considered that Lord Glennie had failed to give satisfactory reasons for the factual conclusions he had reached on the evidence, particularly on whether there had, at the time of the sale, been an assumption by NSL of LGDCs debts to Mr Liu. The Extra Division concluded that the sale had been a gratuitous alienation and that Foxworth had not obtained its rights under the standard security in good faith or for value [7].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0158.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0158.txt
new file mode 100644
index 0000000000000000000000000000000000000000..1e442b9609595b01d783c7a04431f3d82541365f
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0158.txt
@@ -0,0 +1 @@
+Olympic Airlines SA was wound up by a court in Athens on 2 October 2009. The main liquidation proceedings are ongoing in Greece. The company pension scheme has a 16m deficit. Olympic Airlines SA is liable to make good the deficit by s 75 of the Pensions Act 1995. It is unlikely to be able to do so. Members of the pension scheme are eligible for compensation under the Pensions Act 2004 from the UKs Pension Protection Fund in respect of the shortfall. Such compensation is payable from the date when a qualifying insolvency event occurred. There are two possible dates in this case. The first possible date is 20 July 2010, which is when the trustees of the pension scheme presented a winding-up petition in England. The winding up of a company under the Insolvency Act 1986 is a qualifying insolvency event: Pensions Act 2004, s 121(3)(g). English courts have jurisdiction to wind up a foreign company under the Insolvency Act 1986. However, under EU Regulation 1346/2000 on Insolvency Proceedings (the Regulation), where (as here) the company has its centre of main interests in another member state of the European Union, the English court is only permitted to wind it up if it has an establishment in England, meaning any place of operations where the debtor carries out a non-transitory economic activity with human means and goods (article 2(h)). The second possible date is 2 October 2014, which is the fifth anniversary of the commencement of the proceedings in Greece. The possibility of treating this date as the date of a qualifying insolvency event in the specific circumstances of this case was created by a change in legislation subsequent to the Court of Appeals decision in this case refusing to make a winding-up order on the basis of lack of jurisdiction: Pension Fund (Entry Rules) (Amendment) Regulations 2014. The trustees of the pension scheme would prefer compensation to be treated as payable from the earlier of those two dates, namely 20 July 2010. The only question for the court is therefore whether Olympic Airlines SA had an establishment in the UK on 20 July 2010 entitling the English court to make a winding-up order under the Regulation, so that it can be said that a qualifying insolvency event occurred on that date. By 20 July 2010, Olympic Airlines SA had: closed all of its offices in the UK except for its head office at 11 Conduit Street in London; ceased all commercial operations; and terminated the contracts of all remaining UK staff except for the General Manager, the Purchasing Manager, and an accounts clerk, who were retained on short-term ad hoc contracts to implement instructions from the liquidator in Athens, supervise the disposal of the companys assets in the UK, and pay bills and conduct other administration relating to the head office building. At first instance, the judge held that these activities constituted non-transitory economic activities and Olympic Airlines SA therefore had an establishment in the UK entitling him to make the winding-up order. The Court of Appeal disagreed and held that the remaining activity consisted only in the winding up of the companys affairs, which was not enough to give the court jurisdiction to make the order. The trustees of the pension scheme appeal from the Court of Appeals decision.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0161.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0161.txt
new file mode 100644
index 0000000000000000000000000000000000000000..f8ad6c40b049573a5d0afaa0065a352bb3f8e6fc
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0161.txt
@@ -0,0 +1 @@
+These two appeals concern the claims of two EU nationals to claim benefits in the United Kingdom. Ms Mirga was born in Poland and, having previously lived in the UK with her parents for four years, moved back here in 2004. The benefit rights of people from Poland in the UK were mostly governed by the Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004/1219) (the A8 Regulations) which were enacted to give effect to the Treaty on Accession 2003 (the Accession Treaty) under which Poland (and seven other countries) joined the EU. After finishing her education in April 2005, she carried out registered work within the meaning of the A8 Regulations for seven months. She then became pregnant and did around three months of unregistered work. Ms Mirga claimed income support in August 2006 under the Income Support (General) Regulations (SI 1987/1967) (the Income Support Regulations) on the grounds of pregnancy. The Secretary of State refused Ms Mirgas application for income support and his decision was upheld by the First-tier Tribunal. The Upper Tribunal and then the Court of Appeal affirmed that decision, on the ground that Ms Mirga did not have a right of residence in the UK under the A8 Regulations and therefore was excluded from income support by the Income Support Regulations. Mr Samin was born in Iraq in 1960. In 1992, he and his family were granted asylum in Austria in 1992 and he was granted Austrian citizenship the following year. He then became estranged from his wife and children and came to the UK in December 2005, since when he has lived here alone. Where the A8 Regulations do not apply, the benefit rights of EU nationals in the UK are mostly governed by the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) (the EEA Regulations), issued pursuant to EU Directive 2004/38/EC (the 2004 Directive). Mr Samin is socially isolated and suffers from poor mental and physical health. Mr Samin occupied private accommodation until 2010, when he applied to Westminster City Council (the Council) for housing under the homelessness provisions of the Housing Act 1996 (the Housing Act). The Council decided that he was a person from abroad who is not eligible for housing assistance within the meaning of section 185(1) of the Housing Act, because he did not have the right of residence in the UK under the EEA Regulations. That decision was affirmed in the Central London County Court, whose decision was in turn upheld by the Court of Appeal.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0243.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0243.txt
new file mode 100644
index 0000000000000000000000000000000000000000..9f05cb04ec2a446bd377a682e77f6d783a8a2354
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0243.txt
@@ -0,0 +1 @@
+On 4 January 2011, Mrs Sylvie Beghal passed through East Midlands Airport with her three children on returning from visiting her husband in Paris, a French national in custody on terrorist offences. She was stopped by police and, although not formally detained, arrested or suspected of being a terrorist, was told they needed to speak to her to establish whether she was involved in terrorist acts. The police did this exercising the power under Paragraph 2 of Schedule 7 of the Terrorism Act 2000, which deals with questioning individuals at ports or borders for the purpose of determining whether he appears to be [or to have been concerned in the commission, preparation or instigation of acts of terrorism]. No reasonable suspicion of a past or future offence is needed. Under other provisions of Schedule 7, officers may also: require the production of documents carried; copy and retain material; and, search and detain (currently for a maximum of 6 hours) individuals. By way of sanction, Paragraph 18 of Schedule 7 of the Terrorism Act 2000 makes it a criminal offence, on pain of fine and/or imprisonment, wilfully to fail to comply with such requirements. A Code of Practice exists for officers exercising these powers. Mrs Beghal sent her two eldest children to the arrivals gate, asked for a lawyer (with whom she spoke on the phone) and requested and was granted an opportunity to pray. She was searched and in the absence of the lawyer was asked, amongst other questions, about her relationship with her husband, her reasons for travel, where she had stayed and whether she had travelled beyond France. She refused to answer most of the questions and was charged with the offence of wilful failure to comply with the requirement to answer questions. The questions and reporting her for failure to answer them lasted under half an hour. She later pleaded guilty to this offence and her sentence was a conditional discharge. Mrs Beghal brought proceedings arguing that the Schedule 7 powers breached her Article 5 (right to liberty), Article 6 (privilege against self-incrimination) and Article 8 (right to respect for private and family life) rights under the European Convention on Human Rights (ECHR). The Divisional Court dismissed her claims.
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diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0266.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0266.txt
new file mode 100644
index 0000000000000000000000000000000000000000..0f263039181a6c188b61fac53d0d22aa9e36aca3
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0266.txt
@@ -0,0 +1 @@
+The appellants in these cases challenged the validity of an amendment to the Immigration Rules in 2010 requiring a foreign spouse or partner of a British citizen or person settled in the United Kingdom to pass a test of competence in the English language before coming to live here (rule E-ECP 4.1 and E-LTRP 4.1 in Appendix FM) (the Rule). They argued that the Rule itself is an unjustifiable interference with the right to respect for private and family life protected by article 8 of the European Convention on Human Rights (ECHR) and/or is unjustifiably discriminatory in securing the enjoyment that right contrary to article 14, or unlawful by reason of its irrationality. The Governments objectives in introducing the pre-entry English requirement for spouses and partners were (a) to assist the spouse or partners integration into British society at an early stage, (b) to improve employment chances for those who have access to the labour market, (c) to raise awareness of the importance of language and to prepare for the tests that the spouses or partners would later have to pass to settle indefinitely in the UK, (d) to save translation costs, (e) to benefit any children the couple might have and (f) to reduce the vulnerability of newly arrived spouses, especially women. The Rule requires spouses and partners to show the ability to speak English at a basic level by passing a test with an approved test provider unless exceptional circumstances are shown. Guidance accompanying the Rule makes it clear that exceptional circumstances will rarely arise and do not include financial reasons or lack of literacy. The appellants are UK citizens who have been married to foreigners since 2009 and 2010 respectively. Their husbands are unable to satisfy the pre-entry language requirement, in Saiqa Bibis case because he would have to relocate to Rawalpindi in Pakistan for several months, which is not affordable, and in Mrs Alis case because there is no test centre in the Yemen where they have had to live. The High Court held that the Rule itself was not unlawful. The Court of Appeal by a majority upheld the High Courts decision.
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diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0273.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0273.txt
new file mode 100644
index 0000000000000000000000000000000000000000..29129b8f086ccca1a1c53d78e9623a27603aa612
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2013-0273.txt
@@ -0,0 +1 @@
+Section 28 of the Housing Act 1988 The Housing Act 1988 (the 1988 Act) was brought in with a view to stimulating the availability of rented accommodation in the private sector; it allowed landlords to let new tenancies on terms more advantageous to themselves [4]. Parliament included safeguards to deter unscrupulous landlords from evicting existing tenants with protected tenancies [15]. Section 27 of the 1988 Act provides the right to claim damages for unlawful eviction [6]. Section 28 sets out the method by which such damages are calculated, being the difference in value between two alternative calculations of the landlords interest in the building at the time immediately prior to the unlawful eviction: (1) The basis for the assessment of damages [for unlawful eviction] is the difference in value, determined as at the time immediately before the residential occupier ceased to occupy the premises in question as his residence, between (a) the value of the interest of the landlord in default determined on the assumption that the residential occupier continues to have the same right to occupy the premises as before that time; and (b) the value of that interest determined on the assumption that the residential occupier has ceased to have that right. (2) In relation to any premises, any reference in this section to the interest of the landlord in default is a reference to his interest in the building in which the premises in question are comprised (whether or not that building contains any other premises) together with its curtilage. (3) For the purposes of the valuations referred to in subsection (1) above, it shall be assumed (a) that the landlord in default is selling his interest on the open market to a willing buyer Mr Loveridges flat at 19 Moresby Walk From November 2002 Mr Loveridge lived in the downstairs flat at 19 Moresby Walk, a two-storey house. Both his flat and the upstairs flat were owned by the London Borough of Lambeth (Lambeth) and let under secure tenancies conferring certain statutory protections. From July to December 2009 Mr Loveridge made a trip to Ghana. While he was away, Lambeth changed the locks on his flat and cleared his possessions, mistakenly believing that he had died. Two days after he returned to the UK, his flat was rented to somebody else [2]. Mr Loveridge sued Lambeth for damages. The parties approaches to damages under section 28 Mr Loveridge and Lambeth each instructed a surveyor to value Lambeths interest in 19 Moresby Walk for the purposes of subsections 28(1)(a) and (b). Mr Loveridges surveyor calculated valuation (a) on the basis that 19 Moresby Walk was sold with both the upstairs and downstairs flats subject to secure tenancies. He calculated valuation (b) on the basis that 19 Moresby Walk was sold with vacant possession of the downstairs flat but with the upstairs flat subject to a secure tenancy. The difference in value was 90,500 [22]. Lambeth adopted a different approach. It relied on subsection 28(3)(a), which requires both valuations (a) and (b) to be calculated on the assumption that the property is sold on the open market to a willing buyer [18]. If 19 Moresby Walk had in fact been sold on the open market, say to a private landlord, the secure tenancies (which do not apply to private landlords) would have been converted into assured tenancies, thus allowing the new landlord to bring the rents up to market level [20]. Lambeths surveyor therefore conducted valuation (a) on the basis that both flats were subject to assured tenancies. He concluded that valuation (b) produced the same figure as valuation (a) because the downstairs flat with vacant possession would be worth the same as if it were subject to an assured tenancy [23]. The procedural history At the hearing in the Lambeth County Court, the judge found that Mr Loveridge had been unlawfully evicted. He preferred Mr Loveridges approach to the section 28 valuation exercise. On 25 September 2012 he awarded Mr Loveridge90,500 under section 28 and 9,000 at common law in respect of the trespass to his goods [2]. Lambeth appealed against the quantum of damages. The Court of Appeal accepted Lambeths argument and 10 May 2013 set aside the section 28 award [1]. It ordered Lambeth to pay 7,400 in damages at common law for unlawfully evicting Mr Loveridge, and, as before, 9,000 for trespass to goods.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0023.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0023.txt
new file mode 100644
index 0000000000000000000000000000000000000000..6e9a68d0759dfa99ee524f8b8d5b071c8c7983f9
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0023.txt
@@ -0,0 +1 @@
+Mr Aaron Hunt, born on 17 April 1991, suffers from ADHD, learning difficulties and behavioural problems. As a result, North Somerset Council (the Council) are statutorily required, so far as reasonably practicable, to secure access for him to sufficient educational and recreational leisure-time activities for the improvement of his well-being. On 21 February 2012, the Council made a decision to approve a reduction of 364,793 from its youth services budget for 2012/2013. Mr Hunt, concerned about the impact this would have on the provision of services for young persons with disabilities, brought judicial review proceedings of that decision. He argued that the decision was unlawful on two grounds: (1) the Council had failed its duty under section 507B of the Education Act 1996 to take properly into account the views of young persons with difficulties such as his; and, (2) it failed to fulfil its public sector equality duty under section 149 of the Equality Act 2010 to have due regard to the statutory equality needs of disabled individuals. He sought a declaration that the Councils decision was unlawful and an order that the decision be quashed. At the end of the High Court hearing, but before giving judgment, Wyn Williams J asked the parties barristers for written submissions on relief in the event that he found in favour of Mr Hunt. The note provided by Mr Hunts barristers stated that he sought a quashing order but made no reference to a declaration. Ultimately, Wyn Williams J rejected Mr Hunts challenges to the legality of the decision. Mr Hunt was ordered to pay the Councils costs, subject to a proviso against enforcement of the costs order without further permission of the Court. The Court of Appeal allowed Mr Hunts appeal on both grounds. It, nonetheless, refused to make a quashing order, considering that it was too late to unwind the entire revenue budget for the financial year. It also ordered him to pay half of the Councils costs. Mr Hunts barristers did not make alternative submissions about declaratory relief so no mention was made of this in the Court of Appeals judgment. Mr Hunts barristers did not raise this omission on receiving the judgment in draft and did not make suggestions as to the appropriate form of the order in light of the judgment. The Councils barristers prepared a draft order stating that the appeal was dismissed. Mr Hunts barristers stated in written submissions that the parties were agreed on the order except in relation to costs. Mr Hunt appealed to the Supreme Court on the basis that the Court of Appeal should have made: (1) a declaration that the Council had failed in its statutory obligations; and, (2) an order for costs in his favour.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0073.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0073.txt
new file mode 100644
index 0000000000000000000000000000000000000000..095adb6b4d46c649fb0d425332f538f4d3af2a86
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0073.txt
@@ -0,0 +1 @@
+In 2006 the United States of America (USA) closed a watercraft repair centre (the Base) which it maintained in Hampshire. Mrs Nolan was employed at the Base by the appellant and was dismissed for redundancy the day before it closed. Mrs Nolan complained that the appellant had failed to consult with any employee representative when proposing to dismiss her. The appellant denies any such duty. Mrs Nolan brought Employment Tribunal proceedings under Part IV Chapter II of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA) as amended by The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1995 (SI 1995/2587) (the 1995 Regulations). TULCRA as originally enacted by Parliament went beyond the requirements of European law under Council Directive 77/187/EEC (or now under Council Directive 98/59/EEC) in extending a right to be consulted prior to redundancies to employees of public administrative bodies, such as those at the Base. But it fell short of European law in that it was confined to circumstances where employees enjoyed union representation recognised by the employer. In 1994 the Court of Justice identified this failure, and in consequence the Secretary of State relying on the power to make secondary legislation conferred by section 2(2) of the European Communities Act 1972 (the 1972 Act) made the 1995 Regulations which amended TULCRA to require employee representatives to be designated for consultation purposes in all situations covered by TULCRA. On the basis of TULCRA as amended, Mrs Nolan succeeded before the Employment Tribunal and was granted an order for remuneration for a one month period. This Employment Appeal Tribunal upheld the order. The Court of Appeal referred to the Court of Justice the question whether the obligation to consult arose on a proposal or only on a decision to close the base (the UK Coal Mining and Fujitsu issue: see [2008] ICR 163 and Case C-44/08; [2009] ECR I-8163). The Court of Justice declined jurisdiction, holding that (i) Directive 98/59/EEC being an internal market measure covering economic activities, national defence and the dismissal of staff at a military base are outside its scope; and (ii) it was not appropriate to rule on a question relating to a public administrative establishment to which the Directive did not apply. The Court of Appeal ordered a further hearing of the UK Coal Mining/Fujitsu issues. The USA appeals to the Supreme Court on three grounds: (1) TULCRA should in the light of the Court of Justices ruling be construed as not applying to employment by a public administrative establishment, at least as regards non-commercial (jure imperii) activity such as closure of a military base decided at the highest level in Washington; (2) the same result should be reached in the light of principles of international law and EU law; (3) In any event, the Secretary of State exceeded the powers conferred by s.2 of the 1972 Act when making the 1995 Regulations, in so far as these went further than EU law requires by protecting workers without trade union representation employed by public administrative establishments.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0079.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0079.txt
new file mode 100644
index 0000000000000000000000000000000000000000..a7e350d6f654db295a52cc4e96cf0222fb78a25e
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0079.txt
@@ -0,0 +1 @@
+The benefit cap was introduced in the Welfare Reform Act 2012 and implemented by the Benefit Cap (Housing Benefit) Regulations 2012 (the Regulations). The main issue in this appeal is whether the Regulations are unlawful under the Human Rights Act 1998. It is argued that the cap has an unjustifiably discriminatory impact on women in relation to their right to the peaceful enjoyment of their possessions, contrary to article 14 of the European Convention on Human Rights taken with article 1 of the First Protocol to the ECHR (A1P1). The cap applies where the total entitlement of a single person or couple to specified welfare benefits exceeds an amount which represents the average weekly earnings of a working household in Great Britain, net of tax and national insurance contributions. The Regulations fix the cap at 350 a week for a single claimant without dependent children, and 500 for all other claimants. Benefits taken into account include housing benefit, child benefit and child tax credit. The Governments justification for the scheme is that it is necessary (i) to set a reasonable limit on the extent to which the state will support non-working families from public funds; (ii) provide members of households of working age with a greater incentive to work and (iii) achieve savings in public expenditure. The cap does not apply to persons or families entitled to working tax credit. Receipt of this benefit requires a lone parent responsible for a child to work at least 16 hours a week, and a couple with a child to work a total of 24 hours a week, with one of them working at least 16 hours. The cap affects a higher number of women than men. That is because the majority of non-working households receiving the highest levels of benefits are single parent households, and most single parents are women. The appellants are two lone mothers and their youngest children. The application of the cap reduced SGs weekly income from the specified benefits by 75, and NSs by 55. The courts below held that the indirectly discriminatory impact of the scheme upon lone parents, and therefore women, could be justified and that the scheme was therefore lawful.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0087.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0087.txt
new file mode 100644
index 0000000000000000000000000000000000000000..950711f035503b94824f72957efb21fade9e6cc8
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0087.txt
@@ -0,0 +1 @@
+On 15 March 2008 the Claimant entered the Respondents premises in Small Heath, Birmingham which include a petrol station and a kiosk where customers pay for their purchases. Having parked his car he entered the kiosk to ask whether he could print some documents from a USB stick. Mr Amjid Khan was behind the kiosk desk, employed by the Respondent to see that petrol pumps and the kiosk were kept in good order and to serve customers. Mr Khan refused the Claimants request in a rude manner, at which the Claimant protested. Mr Khan responded in foul, racist and threatening language and ordered the Claimant to leave. The Claimant returned to his car followed by Mr Khan. Before the Claimant could drive off, Mr Khan opened the passenger door, told the Claimant in threatening words never to return and punched him on the left temple. The Claimant got out and walked round to close the passenger door when Mr Khan subjected him to a serious attack. The Claimant had not done anything which could be considered aggressive or abusive. The Claimant brought proceedings against the Respondent on the basis that it was vicariously liable for the actions of its employee Mr Khan. The trial judge dismissed the claim because he considered that there was an insufficiently close connection between what Mr Khan was employed to do and his tortious conduct in attacking the Claimant for the Respondent to be liable. The Court of Appeal upheld the judges decision. The Claimant appealed, challenging whether the close connection test was the appropriate standard to apply and also arguing that his claim should have succeeded in any event.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0089.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0089.txt
new file mode 100644
index 0000000000000000000000000000000000000000..6c62d16a3fc4f482466cd8d6131a7f97ebd05976
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0089.txt
@@ -0,0 +1 @@
+The Respondent, Mrs Cox, worked as the catering manager at HM Prison Swansea. She was in charge of all aspects of the catering, including the operation of the kitchen producing meals for prisoners. She supervised prisoners who worked in the kitchen alongside other civilian catering staff. On 10 September 2007 Mrs Cox instructed some prisoners to take some kitchen supplies to the kitchen stores. During the course of this operation, one of the prisoners, Mr Inder, accidentally dropped a sack of rice onto Mrs Coxs back, injuring her. Mrs Cox brought a claim against the Ministry of Justice (MOJ) in the Swansea County Court. His Honour Judge Keyser QC found that Mr Inder was negligent, but dismissed the claim on the basis that the prison service, which is an executive agency of the Ministry of Justice, was not vicariously liable as the relationship between the prison service and Mr Inder was not akin to that between an employer and an employee. The Court of Appeal reversed the decision, finding that the prison service was vicariously liable for Mr Inders negligence. The question on the MOJs appeal to the Supreme Court concerns the sort of relationship which has to exist between an individual and a defendant before the defendant can be made vicariously liable in tort for the conduct of that individual. This case was heard alongside Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 which addresses the question of how the conduct of the individual has to be related to that relationship, in order for vicarious liability to be imposed on the defendant.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0094.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0094.txt
new file mode 100644
index 0000000000000000000000000000000000000000..a9468c3b275fb7717a06db35205c6274bea1b983
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0094.txt
@@ -0,0 +1 @@
+A patient, who was clinically asymptomatic at the time, requested that his GP refer him for a heart screen on 30 May 2008. The GP referred him for an electrocardiogram (ECG) test in July 2008. The test reported negative for ischaemic heart disease, and no further action was taken. The patient made further complaints of chest pain to a locum doctor on 10 December 2008, and so his GP referred him to a chest pain clinic 5 days later. The clinic declined to see him because of his earlier negative test, and sent a report to the practice on 20 December, which was not marked urgent or reviewed. The patient attended the practice again on 6 January 2009 enquiring as to why he had not received an appointment. The GP referred him for another ECG, but the patient died of a myocardial infarction later that day. The patients widow complained to the Northern Ireland Commissioner for Complaints (the Complaints Commissioner). Following an investigation, the Commissioner held that the practice had failed to provide a reasonable level of care and treatment and was guilty of maladministration. He recommended that the GP make a payment of 10,000 to the widow. The GP refused to make the payment, and so the Commissioner indicated that he would lay a special report about the matter before the Northern Ireland Assembly. The Commissioners recommendation was upheld at first instance but quashed by a majority of the Court of Appeal. The Commissioner appealed to the Supreme Court.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0110.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0110.txt
new file mode 100644
index 0000000000000000000000000000000000000000..6ce1925fbf89c868452a41f9014851c4b79436b5
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0110.txt
@@ -0,0 +1 @@
+This appeal concerns a repayment of overpaid value added tax (VAT) of approximately 125m (the VAT Repayment) received by the appellant, Shop Direct Group (SDG), a company in the Littlewoods corporate group (the Group). Over a number of years, companies within the Group made substantial overpayments of VAT to HMRC. These VAT overpayments were made on an incorrect understanding of law: the VAT was wrongly calculated when goods were sold to agents of the supplier with a discount for commission. The relevant supplies were made between 1978 and 1996 by companies within the Group, including SDG. VAT was paid to HMRC in relation to these supplies by the representative member of the Group under section 43 of Value Added Tax Act 1994 (VATA 1994). By 2007, following a series of reorganisations within the Group, each of the companies which had made relevant supplies had permanently discontinued its trade. In June 2003, the representative member of the Group made a claim for repayment of VAT from HMRC under section 80 of VATA 1994. This claim included the various payments which led to the VAT Repayment. In September 2007, HMRC made the VAT Repayment pursuant to arrangements which resulted in the VAT Repayment being received by SDG as beneficial owner at the time of receipt. The issue before the Supreme Court is whether the VAT Repayment is liable to corporation tax under the Income and Corporation Taxes Act 1988 (ICTA, later rewritten in the Corporation Tax Act 2009). Sections 103 and 106 of ICTA imposed a charge to corporation tax on post-cessation receipts from a trade, profession or vocation. These provisions and their statutory predecessors were enacted to prevent tax avoidance by businesses choosing when to discontinue a business in order to escape tax on post-cessation receipts [1, 3-9]. In the proceedings below, the First-tier Tribunal, Upper Tribunal and Court of Appeal all held that SDG was liable to corporation tax on the receipt of the VAT Repayment.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0138.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0138.txt
new file mode 100644
index 0000000000000000000000000000000000000000..c089bd8cfef79c663f5fa639b86b5594658470c0
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0138.txt
@@ -0,0 +1 @@
+This appeal involves a challenge to the compatibility of the police power contained in s 60 Criminal Justice and Public Order Act 1994 (s 60), with the right to respect for private life protected by article 8 of the European Convention on Human Rights (ECHR). S 60 permits a police officer to stop and search any person or vehicle for offensive weapons or dangerous instruments, whether or not he has any grounds for suspecting that the person or vehicle is carrying them, when an authorisation from a senior police officer, which must be limited in time and place, is in force. On 9 September 2010, in response to a period of gang related violence in Haringey, Superintendent Barclay authorised the carrying out of searches under s 60 for 17 hours in parts of the borough, concluding that it was a proportionate response to protect members of the public from serious violence. That day, Police Constable Jacqui Reid was called to an incident in Tottenham involving a passenger who had not paid her fare on the No. 149 bus. The passenger was the appellant, Mrs Roberts. She had denied having identification with her and kept a tight hold on her bag. PC Reid used the power under s 60 to search her bag, which enabled Mrs Roberts name to be established from a bank card. Mrs Roberts brought judicial review proceedings against the police alleging breaches of a number of her rights under the ECHR. Both the High Court and Court of Appeal rejected her claims. The only claim pursued in her appeal to the Supreme Court was the alleged breach of article 8. She sought a declaration of incompatibility under s 4 Human Rights Act 1998 on the ground that the power is not in accordance with the law. Article 8 requires the law to be sufficiently accessible and foreseeable for an individual to regulate his conduct accordingly and to have sufficient safeguards against the risk that it will be used in an arbitrary or discriminatory manner
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0159.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0159.txt
new file mode 100644
index 0000000000000000000000000000000000000000..fe612c0b8242f0ef5795b721af278c3e89ef8d83
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0159.txt
@@ -0,0 +1 @@
+In June 2006 the Appellant, Hastings Borough Council (the Council), exercised its emergency powers to restrict public access to Hastings Pier on account of its being in a dangerous condition as a result of serious structural defects. The Respondent, Manolete Partners PLC (Manolete), pursued a claim for compensation against the Council for loss to business as a result of the Councils emergency closure of the pier. Manolete brought the claim as an assignee of the business Stylus Sports Ltd (Stylus), which went into liquidation in late 2011. Stylus had leased two units from the freeholder of the pier, Ravenclaw Investments Incorporated (Ravenclaw), and had operated a bingo hall and amusement arcade. Two years before the closure of the pier, Stylus had commissioned a structural engineering survey of the pier, which advised that urgent and future work, within a year, was required to the structure of the pier to prevent an unacceptable risk to the public. Ravenclaw, which was responsible as landlord for repair and renewal of the pier structure, did not take action to remedy the defects identified. Nor did the Council, and the pier remained open to the public. In April 2006, a section of tension cord fell from the pier. This led the Council to attempt, unsuccessfully, to compel Ravenclaw to take action, and to commission its own structural integrity report, which in June 2006 recommended immediate restrictions on access to the pier. The Council exercised its emergency powers under section 78 of the 1984 Act, and in September 2006 obtained a court order under section 77, prohibiting public access to the pier until the necessary remedial works had been carried out. Section 106 of the Building Act 1984 (the 1984 Act), requires compensation to be paid for loss to a business resulting from emergency action, but only where the owner or occupier of the premises has not been in default. The Council alleged that Stylus had breached the Occupiers Liability Act 1957, which imposes a duty of care towards visitors, and the Health and Safety at Work Act 1974, which imposes a duty on an employer to ensure the safety of his employees and the safety of the workplace. The Council sought to rely on these alleged breaches to establish a default, thereby precluding Manolete from making a compensation claim under the 1984 Act. This defence was rejected by the Technology and Construction Court and the Court of Appeal, on the basis that the reference to default was limited default in respect of obligations imposed by the 1984 Act itself.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0231.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0231.txt
new file mode 100644
index 0000000000000000000000000000000000000000..38cd5ff4b37aeb65fc33a922118cbdf32838f860
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2014-0231.txt
@@ -0,0 +1 @@
+The Public Processions (Northern Ireland) Act 1998 (the 1998 Act) placed responsibility for the management of parades in Northern Ireland in the hands of an independent statutory body called the Parades Commission. The Act placed a duty on anyone proposing to organise a public procession to give advance notice to the police and made it a criminal offence to organise, or take part in, a public procession of which notification had not been given. On 3 December 2012 Belfast City Council decided to stop flying the Union flag over Belfast City Hall every day. The flag was to be flown on certain designated days only. The decision sparked a wave of protests by loyalists which continued for some months and became known as the flags protests. The protesters marched from a meeting point in East Belfast to Belfast City Hall in the centre of the city and back again. The route took the parade through the Short Strand, which is perceived to be a nationalist area, and where violence, disorder and sectarian abuse were directed at residents. No notification was made under the 1998 Act that a parade was due to take place. Initially, in order to prevent potential disorder, the police had taken the decision not to permit the protesters to enter Belfast City Centre. But between 6 and 8 December 2012 this decision was changed, as it was considered there was a need to try to facilitate some form of protest in order to ease community tension. Therefore, when the parades began on 8 December 2012 the protesters were permitted to enter the City Centre and pass through the Short Strand area. The weekly parades continued until March 2013, during which time the police took no action to stop them. The police made a number of public announcements to the effect that it had no power to stop a parade that had not been notified under the 1998 Act. They also tried, unsuccessfully, to refer the matter to the Parades Commission. The appellant, a resident of Short Strand, issued judicial review proceedings challenging the failure of the police to take action to prevent the parades from taking place. The High Court found that the police had failed to appreciate the extent of its powers to stop an un-notified parade, which had the effect of undermining the 1998 Act. The Court of Appeal allowed the Chief Constables appeal. DB appealed to the Supreme Court.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2015-0057.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2015-0057.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e573feb618f8f3c5c802ca1b95e2ff707b106a88
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2015-0057.txt
@@ -0,0 +1 @@
+This appeal and cross-appeal arise out of claims made by certain investment trust companies (the ITCs) for refunds of VAT which they had paid on the supply of investment management services from investment managers (the Managers). The VAT transpired not to be due, because the supplies in question were exempt from VAT under EU law. The Managers who received VAT from the ITCs paid it to the Commissioners, believing they were entitled to deduct from the VAT chargeable on their supplies to the ITCs (output tax) the tax which they had themselves paid on supplies received for the purposes of their businesses (input tax). Out of a notional 100 received from the ITCs, the Managers might have therefore accounted to the Commissioners for only 75 after deducting 25 in respect of input tax. When it transpired that the supplies were VAT exempt, the Managers made claims to the Commissioners for refunds under s.80 of the VAT Act 1994, and passed on the refunded VAT and interest to the ITCs. However, under the statute, the Managers were only entitled to a refund of the VAT they had actually paid the Commissioners (i.e. the notional 75). In addition, they could not claim refunds in relation to accounting periods excluded by the three year statutory limitation period under s.80 (the dead periods). The ITCs did not receive the full amount of VAT they had been mistakenly charged and brought proceedings against the Commissioners seeking remedies in unjust enrichment and EU law in respect of the notional 25 and the dead periods. The judge found that the Commissioners had been enriched by the full amount of VAT the ITCs paid to the Managers (i.e the notional 100), but that the ITCs cause of action at common law was excluded by the statutory scheme, which protected the Commissioners from liability other than as provided in s.80. EU law required that exclusion to be disapplied so as to permit a claim, but still subject to the limitation period in s.80. The claim in relation to the dead periods was therefore dismissed, but payment of the notional 25 outside those periods was ordered. Both sides appealed, and the Court of Appeal allowed both appeals. The statutory scheme did not exclude a common law claim, but it was wrong to treat the Commissioners as having been enriched to the extent of the notional 100, where they had only received 75. There was no claim in EU law for the remaining amounts retained by the Managers. Judgment was given for the notional 75 claim in relation to the dead periods, and the claim for the notional 25 (for all periods) was dismissed.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2015-0063.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2015-0063.txt
new file mode 100644
index 0000000000000000000000000000000000000000..5a21cca5d2ef9693f8aa180cd523db0083aae524
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2015-0063.txt
@@ -0,0 +1 @@
+Ms Janah is a Moroccan national who was recruited in Libya to work as a domestic worker for the Libyan government at its London embassy. Ms Benkharbouche is a Moroccan national who was recruited in Iraq to work for Sudan at its London embassy. Both were dismissed from their employment and then issued claims in the Employment Tribunal against Libya and Sudan respectively. Some of their claims were based on EU law. Others were based on breach of contract or on purely domestic statutes of the United Kingdom. In both actions the Employment Tribunal dismissed the claims on the basis that Libya and Sudan were entitled to state immunity under the State Immunity Act 1978 (1978 Act). The Employment Appeal Tribunal (EAT) heard Ms Janahs and Ms Benkharbouches appeals together. The EAT allowed the appeals and held that those sections were incompatible with article 47 of the EU Charter of Fundamental Rights and Freedoms (EU Charter) which reflects the right in EU law to a remedy before a tribunal. The EAT consequently disapplied sections 4(2)(b) and 16(1)(a) of the 1978 Act insofar as those sections barred the claims which were based on EU law. The Court of Appeal affirmed the judgment of the EAT and declared those sections of the 1978 Act to be incompatible with the right to access a court, under article 6 of the European Convention on Human Rights (ECHR). The Secretary of State appeals in both cases.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2015-0082.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2015-0082.txt
new file mode 100644
index 0000000000000000000000000000000000000000..87a73b019937133363a993bd17a49da2091b7ef1
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2015-0082.txt
@@ -0,0 +1 @@
+This case concerns the scope of the duty of confidentiality owed by Her Majestys Revenue and Customs (HMRC) in respect of the affairs of taxpayers. This duty is set out in statutory form in Section 18(1) of the Commissioners for Revenue and Customs Act 2005 (the 2005 Act), which provides that HMRC officials may not disclose taxpayer information. Section 18(2) of the 2005 Act sets out a number of situations in which this duty may be overridden. These include where a disclosure is made for the purposes of a function of HMRC (s.18(2)(a)(i)) and function is given a broad and general definition in various sections. There are also a number of more specific situations set out in ss.18(2)(b) to (j), such as for the purposes of civil or criminal proceedings. Mr Patrick McKenna is the Founder and Chief Executive Officer of Ingenious Media Holdings plc (Ingenious Media), an investment and advisory group specialising in the media and entertainment industries. It promoted film and investment schemes involving film production partnerships which utilised certain tax relief previously available [8]. On 14 June 2012 the Permanent Secretary for tax in HMRC, Mr David Hartnett, gave an off the record interview to two financial journalists from The Times about tax avoidance [9]. On 21 June 2012 The Times published two articles on film schemes and tax avoidance which identified Mr McKenna as one of two main providers of film investment schemes in the UK and informed readers that such schemes had enabled investors to avoid at least 5 million in tax a figure that had been provided by Mr Hartnett. The articles also contained a direct quote from the interview with Mr Hartnett about Mr McKenna, which was attributed to a senior Revenue official [10-11]. Mr McKenna and Ingenious Media brought a claim for judicial review of the decision of HMRC, acting by way of Mr Hartnett, to disclose information which concerned them to The Times journalists. The court at first instance held that it should not approach the disclosures as if it were the primary decision maker. It found that the disclosures made by Mr Hartnett were not irrational, were made for a legitimate purpose and were proportional [14]. This approach was upheld by the Court of Appeal [15]. Ingenious Media Holdings appealed to the Supreme Court.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2015-0177.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2015-0177.txt
new file mode 100644
index 0000000000000000000000000000000000000000..0c840e63393fef7bd545c2e16ef41c91cb549def
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2015-0177.txt
@@ -0,0 +1 @@
+Littlewoods overpaid VAT to HMRC between 1973 and 2004. Between 2005 and 2008, HMRC repaid the principal sum of 205 million, together with simple interest of 268 million. In these proceedings, Littlewoods seek additional interest, calculated on a compound basis as 1.25 billion, on the ground that such interest is due under the common law of restitution, either as restitution for a mistake of law, or as restitution of tax unlawfully demanded (a Woolwich claim). The two issues for the Supreme Court in the present case are: (1) Whether Littlewoods common law claims are excluded by sections 78 and 80 of the Value Added Tax Act 1994 (the 1994 Act) as a matter of English law, and without reference to EU law. The lower courts found that Littlewoods common law claims were barred by the 1994 Act. Littlewoods appeals on this issue; (2) If Littlewoods claims for compound interest are excluded by sections 78 and 80 of the 1994 Act, whether that exclusion is contrary to EU law, in light of the Court of Justice of the European Unions (CJEU) judgment in Case C-591/10 Littlewoods. The lower courts found that denying compound interest was contrary to EU law. HMRC appeals on this issue. Other issues were raised, but these would only need to be decided if Littlewoods were successful on either of the first two issues.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2015-0214.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2015-0214.txt
new file mode 100644
index 0000000000000000000000000000000000000000..995f6f4f32481543ee4ebb1675e0cf2636b4dd89
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2015-0214.txt
@@ -0,0 +1 @@
+The girl at the centre of this appeal, B, is a British national now aged 7. The Respondent (a British national of Pakistani ethnicity) is Bs biological mother and was previously in a same-sex relationship with the Appellant (a British national of Indian ethnicity), who has strong claims also to be described as a mother of B. The couple lived in England and set up home together, but they never became civil partners. Following IUI treatment, given to them both as a couple, the Respondent gave birth to B in April 2008. The Respondent undertook most of Bs care but the Appellant also helped care for her and, as co-parents, they took B out at weekends, in particular to visit members of their families. In December 2011, the relationship broke down acrimoniously and the Appellant left the family home. Over the next two years, the Respondent progressively reduced the level of the Appellants contact with B. The Appellant objected and suggested mediation. Meanwhile, the Respondent decided privately to move with B to live in Pakistan where she says members of her wider family remain. She did not share this decision with the Appellant. On 3 February 2014 the Respondent moved to Pakistan with B where they have remained ever since. Although the Appellant did not consent to it, Bs removal to Pakistan was lawful. On 13 February 2014, unaware where the Respondent had taken B, the Appellant applied under the Children Act 1989 (1989 Act) for orders for shared residence of B, or for contact with her. This application depended upon showing that B was habitually resident in England at the time it was issued (i.e. 13 February 2014). Subsequently, having learned that the Respondent had taken B to Pakistan, the Appellant also applied for orders under the courts inherent jurisdiction over B (as a British national) that she be made a ward of court and returned to England. In July 2014 Hogg J held that (a) the English court had no jurisdiction to determine the Appellants 1989 Act application because B had lost her habitual residence immediately upon her removal to Pakistan on 3 February 2014; and (b) the inherent jurisdiction over a British national who was neither habitually resident nor present in England should be exercised only if the circumstances were dire and exceptional, and this was not such a case. On 6 August 2015, the Court of Appeal dismissed the Appellants appeal. The Appellant appeals to the Supreme Court in respect of both applications.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2015-0216.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2015-0216.txt
new file mode 100644
index 0000000000000000000000000000000000000000..317840e08e5cec4dd12bbcb223a02d9fc8409e44
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2015-0216.txt
@@ -0,0 +1 @@
+The Children and Young People (Scotland) Act 2014 (the 2014 Act) makes provision for a named person service (the NPS) in relation to children and young people (C&YP) in Scotland. The NPS establishes the new professional role of the named person, and envisages that all C&YP in Scotland will be assigned a named person. The NPS aims to achieve two policy aims: first, a shift away from intervention by public authorities after a risk to welfare has been identified, to an emphasis on early intervention to promote wellbeing. Secondly, moving from a legal structure under which the duties of statutory bodies to cooperate were linked to the performance of their individual functions, to one which ensures that they work collaboratively and share information in order to support wellbeing. The 2014 Act is supplemented by revised statutory guidance (the Guidance), which is still in draft. Part 4 of the 2014 Act (Part 4) provides that named persons will exercise certain functions in relation to C&YP. These include: (a) advising, informing or supporting them or their parents; (b) helping them or their parents access a service or support; and (c) discussing or raising a matter about them with a service provider (e.g. health boards and local authorities) or relevant authority (e.g. the NHS and Scottish Police Authority). The authority responsible for the provision of the NPS (the NPS Provider) changes depending on the age and circumstances of the child or young person. Part 4 also sets out powers and duties relating to information sharing, including (in s.23) conditions for when information must be shared following a change in NPS Provider, and (in s.26) conditions for when information must be shared between service providers or relevant authorities, and the NPS Provider. Section 26(8) includes an additional power of disclosure where the NPS Provider holds information and it considers that providing it to a service provider or relevant authority is necessary or expedient (s.26(9)) for the purpose of the exercise of any of the named person functions. The powers and duties of disclosure under ss.23 and 26 cannot, however, be exercised where the information would be provided in breach of a prohibition or restriction under an enactment. The appellants are four registered charities with an interest in family matters, and three individual parents. They challenged Part 4 by way of judicial review on the basis that it is outside the legislative competence of the Scottish Parliament under the Scotland Act 1998 (the Scotland Act) because: (a) it relates to matters which are reserved under the Scotland Act to the UK Parliament (the Reserved Matters Challenge); (b) it is incompatible with rights under the European Convention on Human Rights (the ECHR Challenge); and/or (c) it is incompatible with EU law (the EU Law Challenge). The appellants challenges were dismissed in both the Outer House and the Inner House of the Court of Session. They now appeal to the Supreme Court.
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diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2015-0238.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2015-0238.txt
new file mode 100644
index 0000000000000000000000000000000000000000..830c5ea0922abdf6fbb28e9a60b241e132f11c52
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2015-0238.txt
@@ -0,0 +1 @@
+The issue in this appeal is the role of the Court of Protection where there is a dispute between the providers or funders of health or social care services for a person who lacks the capacity to make decisions for himself and members of his family about what should be provided for him. N is a profoundly disabled man, now in his twenties, who is part of a large, close and loving family. His disabilities require that carers are in attendance throughout the day and night. His parents have been unable to co-operate with the authorities in meeting his needs and a care order was made in respect of N when he was eight. This necessarily came to an end when he was eighteen. Shortly before that point, the local authority issued proceedings in the Court of Protection seeking orders pursuant to the Mental Capacity Act 2005 (the MCA) that it was in Ns best interests for N to reside in a care home and for contact with his parents to be regulated and supervised by the local authority. Responsibility for his care passed to the National Health Service when he turned 18. It was not in dispute that N lacked the capacity to make decisions about his residence or contact with his family, nor that for the time being the care home provides a safe and settled environment for N. By the time of the hearing the issues between Ns parents and the respondent clinical commissioning group had narrowed to whether N could visit the family home and whether his mother could assist care home staff with his intimate care when she was visiting him there. The respondent considered that neither was in Ns best interests: the first would require additional trained carers which it was not prepared to fund, and the care home staff had concerns about the second, after the parents had declined an offer of the necessary training in manual handling. At the hearing the respondent argued that the Court of Protection, on Ns behalf, could only decide between the available options and that it was inappropriate to try to obtain a best interests declaration to put pressure on the respondent to make further funding available. The judge agreed that she could not consider the parents proposals for this reason, and she declared that the contact plan proposed by the respondents was in Ns best interests. The Court of Appeal upheld the judges decision.
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diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2015-0255.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2015-0255.txt
new file mode 100644
index 0000000000000000000000000000000000000000..48451bb8f4b82c776cb5b96b9b3959abb5bc699d
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2015-0255.txt
@@ -0,0 +1 @@
+This appeal concerns the legality of attempts by the Lord Chancellor to introduce a residence test for civil legal aid by amending the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Part 1 of LASPO came into force on 1 April 2013. It includes section 9, subsection (1) of which provides that civil legal services are to be available to an individual if they are legal services described in Part 1 of Schedule 1, and the Director of Legal Aid Casework has determined that the individual qualifies for the services in accordance with Part 1 of LASPO. Part 1 of Schedule 1 accordingly sets out the services for which civil legal aid is available. Subsection 9(2) permits the Lord Chancellor to (a) add to, and (b) vary or omit services in Part 1 of the Schedule. In April 2013, the Ministry of Justice (MOJ) issued a paper in which it stated that, subject to certain specific exceptions, the Government would proceed with the introduction of a residence test so that only those who are lawfully resident in the UK (or Crown Dependencies or British Overseas Territories) at the time of the application and have so resided for a continuous period of at least 12 months at any point in the past would be eligible for civil legal aid. In September 2013, the Lord Chancellor decided to proceed with the proposal and to make regulations to that effect in the form of delegated legislation (the draft order), which was put before Parliament on 31 March 2014. Before the draft order was laid before Parliament, the Public Law Project applied to the High Court for a declaration that the draft order was unlawful on the basis that it was (i) ultra vires, i.e. outside the scope of the power granted to the Lord Chancellor by LASPO to bring forward delegated legislation; and (ii) unjustifiably discriminatory in its effect. The Divisional Court held that the draft order was unlawful on both grounds. Following the decision of the Divisional Court, the Lord Chancellor withdrew the draft order before any debate in the House of Lords could take place. On appeal, the Court of Appeal allowed the Lord Chancellors appeal on both grounds, holding that the draft order was intra vires and that, while it was discriminatory in its effect, the discrimination could be justified. The Public Law Project now appeal to the Supreme Court on both grounds.
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diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2016-0004.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2016-0004.txt
new file mode 100644
index 0000000000000000000000000000000000000000..3ce424ce72c2a5bec87a55f292c702911697b68d
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2016-0004.txt
@@ -0,0 +1 @@
+The appellant was in the care of the respondent local authority from the ages of seven to eighteen. The local authority placed her into foster care with Mr and Mrs A between March 1985 and March 1986, and with Mr and Mrs B between October 1987 and February 1988. She was physically and emotionally abused by Mrs A, and sexually abused by Mr B. The case proceeded on the basis that the local authority were not negligent in the selection or supervision of the foster parents, but that they were nevertheless liable for the abuse perpetrated by her foster carers. She claimed that the local authority were liable for the abuse, either on the basis that they were in breach of a non-delegable duty, or on the basis that they were vicariously liable for the wrongdoing of the foster parents. Her claim was dismissed by the High Court and the Court of Appeal.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2016-0048.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2016-0048.txt
new file mode 100644
index 0000000000000000000000000000000000000000..81c7a4907951d341886b74618b67e00677198096
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2016-0048.txt
@@ -0,0 +1 @@
+These proceedings concern a child, called DD in the judgment, who was born in 2006 in Romania, to Romanian parents who met while working in England. The family returned to England after the birth. The parents separated in 2007 and DD has lived in England since then in the care of his mother. The father returned to Romania in 2009 but has maintained a significant relationship with his son. He commenced divorce and custody proceedings in Romania in 2007 which, after long delays, culminated in a decision of the Bucharest Court of Appeal in November 2013 that DD should live with his father. The father applied for the recognition and enforcement of this custody order by the English court in February 2014. These proceedings are governed by the Brussels II (Revised) Regulation (BIIR). DD was made a party. In July 2014 a High Court judge refused the fathers application, applying article 23(b) BIIR which provides that a judgment should not be recognised if it was given, except in a case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the member state in which recognition was sought. The Romanian court had not made direct or indirect enquiry of DD regarding his wishes and feelings. The Court of Appeal upheld the judges order. The father sought to pursue a further appeal to the Supreme Court. The Supreme Court considered as a preliminary issue whether it had jurisdiction to hear an appeal against an order for the enforcement of a custody order in proceedings governed by BIIR.
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diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2016-0052.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2016-0052.txt
new file mode 100644
index 0000000000000000000000000000000000000000..534ce9129a8febdbe179f79e15e651d53b90f45c
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2016-0052.txt
@@ -0,0 +1 @@
+The appellant was convicted of drug trafficking offences on 21 May 1999 and sentenced to 25 years imprisonment. On 29 March 2000, he was ordered to pay a little over 5.4 million by way of a confiscation order. The order required the appellant to pay the amount within 12 months or serve six years imprisonment in default of payment. On 4 May 2007, a receiver appointed to realise the appellants assets paid 12,500. The magistrates deducted seven days from the six-year term in default, to account for that part payment. At that time interest had increased the net sum outstanding, allowing for the part payment, to 8.1 million. Later in 2007 and 2011, the appellants receiver made further payments of 12,500 and 65,370. The prison authorities calculated the reduction in the six-year default term on the basis of the proportion which these payments bore to the 8.1 million at the time of his committal. That produced a total reduction of 24 days. Had the arithmetic been applied instead to an outstanding figure confined to the original 5.4m, an extra 11 days reduction would have been made. The issue in the appeal is whether interest is included in the starting point under s.79(2) Magistrates Courts Act 1980 for the giving of proportionate credit for part payment of a confiscation order.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2016-0080.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2016-0080.txt
new file mode 100644
index 0000000000000000000000000000000000000000..026a9e03d7bc75b7efc8828c9ec7f9750a1ec3fe
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2016-0080.txt
@@ -0,0 +1 @@
+PJS is married to YMA. Both are well-known individuals in the entertainment business. They have two young children. Between 2009 and 2011 PJS had a sexual relationship with AB and, on one occasion, with AB and CD. In January 2016 the editor of the Sun on Sunday newspaper, published by News Group Newspapers (NGN), notified PJS that he proposed to publish ABs account of the relationship. PJS issued proceedings claiming that the publication would breach his rights to privacy and confidentiality, protected by article 8 of the European Convention on Human Rights (ECHR). He applied for an interim injunction, to restrain publication pending the trial of his claim. This application required the court to balance PJSs article 8 rights with NGNs right to freedom of expression under article 10 ECHR, and was subject to s 12 of the Human Rights Act 1998 (HRA). Section 12(3) provides that an interim injunction can only be granted if a claimant is likely to establish at trial that publication should not be allowed. Section 12(4) provides that the court must have particular regard to the importance of freedom of expression and, in relation to journalistic material, to the extent to which the material has or is about to become available to the public, to the public interest in the material being published, as well as to any relevant privacy code. The High Court refused the application but the Court of Appeal allowed PJSs appeal on 22 January 2016 and granted an interim injunction which restrained publication of information which would disclose the identity of PJS and details of the sexual relationship. On 6 April 2016 ABs account was published in print in the United States, and thereafter in Canada and in Scotland, identifying PJS. As a result of representations by the appellants solicitors, publication was restricted to hardcopy editions and online publication was geo-blocked such that internet users in England and Wales could not readily access those sites. However, details have been published on a number of other websites and social media, although the appellants solicitors have been doing their best to remove offending URLs and web pages. On 12 April 2016 NGN applied to the Court of Appeal to set aside the interim injunction on the ground that, as the information was now in the public domain, PJS was unlikely to obtain a permanent injunction at trial and the interim injunction could therefore no longer be justified. On 18 April 2016 the Court of Appeal held that the injunction should be discharged. The Supreme Court restored it pending determination of PJSs application for permission to appeal, which it ordered to be heard with the appeal, should permission be granted.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2016-0082.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2016-0082.txt
new file mode 100644
index 0000000000000000000000000000000000000000..781a0b9aaebde2beb044e3ef5a34a6102d3688c7
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2016-0082.txt
@@ -0,0 +1 @@
+In July 2008, the Appellant, then aged 76, was knocked over on a street in the centre of Huddersfield by a group of men. Two of the men were police officers (DS Willan and PC Dhurmea) and the third was a suspected drug dealer (Williams) whom they were attempting to arrest. As the officers struggled with Williams, he backed into the Appellant, who was standing close by. She fell over, and the three men fell on top of her, causing her to be injured. The officers had foreseen that Williams would attempt to escape. They had not noticed that the Appellant was in the immediate vicinity. The principal question to be decided in this appeal was whether the officers owed a duty of care to the Appellant and whether, if they did, they were in breach of that duty. The judge held that the officers had been negligent, but that the police were immune from claims against them in negligence. The Court of Appeal found that most claims against the police when engaged in their core functions will fail the third stage of the Caparo test i.e. that it will not be fair, just and reasonable to impose a duty of care. The Court also found that Williams had caused the harm to the Appellant and the case therefore concerned an omission by the police, rather than a positive act. Finally, the Court considered that even if the officers had owed the Appellant a duty of care, they had not acted in breach of it. The issues to be resolved in the Supreme Court were (1) does the existence of a duty of care always depend on an application of the Caparo test (2) is there a general rule that the police are not under any duty of care when discharging their core functions, and is there any distinction between acts and omissions (3) was this a positive act or an omissions case (4) did the police owe a duty of care to the Appellant (5) if so, was the Court of Appeal correct to overturn the judges finding that the officers failed in that duty and (6) if there was a breach of a duty of care, were the Appellants injuries caused by it?
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2016-0210.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2016-0210.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e4acb759f9cb3c88cf74abe4d9a55fa1b36464dd
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2016-0210.txt
@@ -0,0 +1 @@
+There is a recognised need for private pension schemes to provide some form of indexation of pensions to protect the value of members pensions against price inflation. To this end, Barnardos adopted a pension scheme which provides for pensions in the course of payment to be increased by the prescribed rate, which is defined as an increase at the rate of the lesser of:- (a) 5%, and (b) the percentage rise in the Retail Prices Index (if any) over the year ending on the previous 31 December. The definition of Retail Prices Index lies at the heart of the dispute: Retail Prices Index means the General Index of Retail Prices published by the Department of Employment or any replacement adopted by the Trustees without prejudicing Approval. Where an amount is to be increased in line with the Retail Prices Index over a period, the increase as a percentage of the original amount will be equal to the percentage increase between the figures in the Retail Prices Index published immediately prior to dates when the period began and ended, with an appropriate restatement of the later figure if the Retail Prices Index has been replaced or re-based during the period (the Definition). The critical clause in the Definition is or any replacement adopted by the Trustees without prejudicing Approval. Barnardos argues that this clause empowers the trustees to adopt another index which they consider a more suitable measure of price inflation (such as the Consumer Prices Index (the CPI)), regardless of whether or not the Retail Price Index (RPI) continues to be published. Representatives of members of the scheme, who are concerned that the adoption of the CPI as the index would over time reduce benefits which they receive from the scheme, argue that the clause does not empower the trustees to depart from the RPI for the purposes of the indexation if the RPI continues to be published. The trustees adopt a neutral stance. The trustees sought a ruling on the meaning of the Definition. The High Court held that, on a proper construction, the Definition did not empower the trustees to adopt an index other than the RPI unless the RPI had been discontinued as an officially published index and replaced. Barnardos appealed this decision. The Court of Appeal by majority (Lewison and McFarlane LLJ, Vos LJ dissenting) dismissed the appeal. Barnardos appealed to the Supreme Court.
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diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2016-0213.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2016-0213.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e5fbdb5d714d30e3ecfb75efa7d3caa13d2cb3b6
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2016-0213.txt
@@ -0,0 +1 @@
+This appeal arises out of a case where a professional gambler, Mr Ivey, sues a casino, Crockfords, to recover his winnings at Punto Banco. Mr Ivey claims for his winnings in circumstances where Crockfords refused to pay out because it believed Mr Ivey cheated. The appeal raises questions about the meaning of the concept of cheating at gambling and the relevance of dishonesty to that concept. Punto Banco is a variant of Baccarat and is not normally a game of skill. The different odds applied to certain bets mean that the casino enjoys a small advantage, taken over all the play. In Punto Banco at Crockfords it was 1.24% if the player wins and 1.06% if the banker wins. Edge sorting is possible when the manufacturing process of playing cards causes tiny differences to appear on the edges of the cards so that, for example, the edge of one long side is marginally different from the edge of the other. It is possible for a sharp-eyed person sitting close to a card shoe (the holder that dispenses the playing cards) to see which long edge it is. This information becomes useful only if things can be arranged so that the cards which the gambler is most interested in are all presented with one long edge facing the table, whilst all the less interesting cards present the other long edge. Then the gambler knows which kind of card is next out of the shoe. Using edge sorting to identify high value cards in Punto Banco will give the player a long-term edge of about 6.5% over the house if played perfectly accurately. On 20 and 21 August 2012, Mr Ivey and his associate, Ms Sun, played Punto Banco at Crockfords. Mr Ivey openly admits to the use of edge sorting during this game. Mr Ivey asked the senior croupier that the same shoe of cards be re-used if he indicated to him that he won. Ms Sun (affecting superstition) asked the croupier to turn the cards in a particular manner if she indicated they were good or not good. The croupier had no idea of the significance of what she was being asked to do. In consequence, the long edge of the not good cards were oriented in a different way from the long edge of the good cards. This procedure was followed for each game of Punto Banco until the shoe was finished. Mr Ivey then indicated that he had won with that shoe and so the cards were reshuffled. The use of a machine shuffler ensured that the cards were shuffled without rotating any of the cards. Mr Ivey could now identify high value cards and his betting accuracy increased sharply. Mr Iveys total winnings over the two days was 7.7m. Nine days after play, Crockfords told Mr Ivey they would not pay his winnings because the game had been compromised. The High Court held that Mr Iveys use of edge sorting was cheating. The Court of Appeal upheld this finding.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0006.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0006.txt
new file mode 100644
index 0000000000000000000000000000000000000000..817c9e8294637df6ea0a359f4b9233548ddef4fa
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0006.txt
@@ -0,0 +1 @@
+This is an interlocutory appeal in a criminal case in which the appellants are defendants indicted for offences of unauthorised use of trademarks, contrary to section 92(1) of the Trade Marks Act 1994 (the 1994 Act). An offence is committed under that section where a person does any of the following three things (with the intent to gain or to cause loss, and without the consent of the trademark proprietor): (a) applies to goods a sign identical to, or likely to be mistaken for, a registered trade mark, (b) sells goods which bear such a sign, or (c) possesses in the course of a business any such goods with a view to committing an offence under (b). The allegations against the appellants (which have yet to be proved) are that they are engaged in the bulk import and subsequent sale of goods bearing registered trademarks, manufactured abroad, in countries outside the EU. A significant portion of the goods said to be sold by the appellants were manufactured (and the trademark applied) with the permission of the trademark proprietor, but were then sold without the trademark proprietors consent (for example because the goods were in excess of the numbers or below the quality permitted by the trademark proprietor). The appellant describes these as grey market goods and distinguishes them from true counterfeits manufactured without the authorisation of the trademark proprietor. At a preparatory hearing in the Crown Court, the appellants argued that while the sale of grey goods attracts civil liability, it is not covered by the offence in s.92(1), which properly construed applies only to true counterfeits. The appellants argued that such a sign in subsection (1)(b) refers back to (1)(a), so that 1(b) applies only to goods where the trademark has been applied without the consent of the proprietor. Any goods in the grey market category have had the trademark originally applied with the consent of the proprietor. It is only the sale which the proprietor has not authorised. It follows, they contend, that they are not, when it comes to paragraph (b), goods which bear such a sign. Both the trial judge and the Court of Appeal (Criminal Division) rejected that submission.
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diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0031.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0031.txt
new file mode 100644
index 0000000000000000000000000000000000000000..42c602867971e1682e5eb75455c29808369c03ad
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0031.txt
@@ -0,0 +1 @@
+An EU citizen with a permanent right of residence in a host member state may have that right removed in the case of abuse of rights or fraud, such as marriages of convenience. The issue in this appeal is which party bears the burden of proof of establishing that a proposed marriage is one of convenience. Ms Sadovska is a citizen of Lithuania. She moved to the United Kingdom in 2007 and has lived and worked here lawfully since, acquiring a right of permanent residence as an EU citizen pursuant to Directive 2004/38/EC (the Directive). Mr Malik is a citizen of Pakistan who entered the UK with a student visa in May 2011 and has remained here unlawfully after his visas expiry in April 2013, in breach of section 10(1)(a) Immigration and Asylum Act 1999. Ms Sadovska and Mr Malik (the appellants) maintain that they have been in a relationship with each other since February 2013, and decided to marry in January 2014. On 11 April 2014, the appellants solicitors notified the Home Office in Glasgow that they intended to marry on 17 April 2014 at Leith Registry Office and invited officials to interview them before the wedding. Immigration officers arrived at the Registrars Office, interviewed the appellants separately, and then detained them before they were able to marry. Both were then served with notice that they were persons liable to removal from the UK: Mr Malik by having stayed after the expiry of his visa and Ms Sadovska by giving the Secretary of State reasonable grounds to suspect the abuse of her EU right of residence by attempting to enter into a marriage of convenience, contrary to regulation 19(3)(c) Immigration (European Economic Area) Regulations 2006. The appellants appealed to the First-tier Tribunal. The judge held that the burden of proof was on the appellants to establish that their proposed marriage was not a marriage of convenience, and that they had failed to do this, having regard to the inconsistencies in their accounts at interview. The appellants appealed unsuccessfully to the Upper Tribunal and to the First Division of the Inner House, arguing that the tribunal had adopted the wrong approach to the burden of proof, and that the Secretary of State had failed to prove that the appellants were guilty of fraud, when the totality of the evidence relating to their relationship and the circumstances in which the interviews had taken place was taken into account.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0040.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0040.txt
new file mode 100644
index 0000000000000000000000000000000000000000..935b5d7a1f4d3b40c020ab4597fabd024eeb49fb
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0040.txt
@@ -0,0 +1 @@
+The Appellant and Respondent are former husband and wife. They divorced in 2002 after a marriage of approximately fifteen years, and the financial issues in the divorce were resolved by way of a consent order. Under the terms of that order the wife received 230,000 in settlement of her capital claims against the husband, and it was also agreed that the husband would make periodical payments to her at an annual rate of 13,200. It was reasonably anticipated by the husband that the wife would use the 230,000 to purchase a suitable home for herself and their son without a mortgage, as the wife had been suffering from ill health which made it difficult for her to work. In the event, however, the wife did manage to take out a mortgage, and she duly purchased a more expensive home for 345,000. Between 2002 and 2009 the wife sold and purchased a series of different properties, and with each purchase the amount which she borrowed increased. In addition, she did not necessarily reinvest all of the sale proceeds from one property into the next and seemingly spent the balance, with the result that the amount of capital she had decreased over time. Eventually, in 2009 the wife sold her final property and began to rent accommodation. By April 2015, when the first-instance judge heard the case, the wife had no capital, and she had debts of around 42,000. The hearing before the judge was to determine two cross-applications made under s.31(1) of the Matrimonial Causes Act 1973. The husband had applied for the discharge or downwards variation of the order for periodical payments, whereas the wife had applied for the order for periodical payments to be varied upwards. In determining the applications the judge noted that there was a shortfall of 4,092 per annum between the wifes current needs and, when coupled with her own earnings, the existing level of the periodical payments. However, he also held that, although the wifes actions had not been profligate, she had not managed her finances wisely and her current financial needs, in particular her need to pay rent, had been increased by the choices which she had made. Consequently, the judge considered that it would be unfair to the husband if he had to make a full contribution to the wifes rental costs. The judge therefore declined to vary the order for periodical payments either upwards or downwards. This meant that the husband would continue to contribute to around 60% of the wifes rental costs, and the wife would have to adjust her expenditure to accommodate the shortfall. The wife appealed against this decision to the Court of Appeal, and was successful. The Court of Appeal considered that the judge had not given sufficient reasons why all of the wifes basic needs should not be met by the periodical payments from the husband, and increased the level of periodical payments to cover her shortfall, i.e. to 17,292. The husband now appeals against this decision to the Supreme Court.
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diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0073.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0073.txt
new file mode 100644
index 0000000000000000000000000000000000000000..683cd553bd99d8ad30b5e773f2a381473a3e036a
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0073.txt
@@ -0,0 +1 @@
+Nottingham City Council, the appellant, is the licensing authority for houses in multiple occupation (HMOs) in its area under Part 2 of the Housing Act 2004 (2004 Act). This appeal concerns two HMOs, 44, Rothesay Avenue and 50, Bute Avenue which are owned by the second respondent, Trevor Parr Associates Ltd. The first respondent, Dominic Parr, is the managing director of the second respondent and the manager of the two HMOs. The 2004 Act requires HMOs to be licensed by the local housing authority. The local housing authority can grant the application under section 64 of the 2004 Act if it is satisfied that, among other requirements, the house is reasonably suitable for occupation by not more than the maximum number of households or persons [specified in the application or decided by the authority] or that it can be made so suitable by the imposition of conditions under section 67 [of the 2004 Act]. The appellant issued guidance on the operation of the licensing system, which provides that the minimum space provision in the case of bedrooms in single occupation in HMOs is eight square metres, although a degree of flexibility is sometimes possible if other features are present. 44, Rothesay Avenue and 50, Bute Avenue are both used for letting to students and each has an attic bedroom with an area of useable living space below eight square metres. In each case, the appellant granted an HMO licence which imposed a condition prohibiting the use of the attic bedroom for sleeping. The respondents appealed to the First-tier Tribunal against the imposition of the conditions. The First- tier Tribunal at separate hearings deleted the conditions imposed by the appellant. In the case of 44, Rothesay Avenue it substituted a condition that the attic bedroom may only be used for sleeping accommodation by a full-time student who resides in the bedroom for a maximum of ten months in each year. The appellant appealed both decisions to the Upper Tribunal, which dismissed the appeals and also directed that the substituted condition be included in the HMO licence for 50, Bute Avenue. The appellant then appealed to the Court of Appeal, which upheld the decision of the Upper Tribunal and included further conditions in both HMO licences that the communal space be kept available for communal living only and that no bedrooms be let to persons other than full-time students. The appellant appealed to the Supreme Court contending that the power to impose conditions under sections 64 and 67 of the 2004 Act cannot be used to limit the class of persons for whom the HMO is suitable, and that the conditions imposed by the First-tier Tribunal, Upper Tribunal and the Court of Appeal are irrational and unenforceable.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0075.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0075.txt
new file mode 100644
index 0000000000000000000000000000000000000000..0cd5f9debdcd458e8579dc310da497565bd67df3
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0075.txt
@@ -0,0 +1 @@
+Ms Rhuppiah, a Tanzanian national, entered the UK in 1997 with leave to reside here as a student for three months. The Home Secretary granted further leave to her to reside in the UK as a student on 12 occasions, but some of these applications for leave were made after the previous leave had expired. While they were studying at the same college, Ms Rhuppiah met Ms Charles, who suffers from ulcerative colitis, a gravely debilitating condition. They have resided together since 2001. Ms Rhuppiah cooks food suitable for Ms Charless medical condition and accompanies her to Bristol, to hospital and in effect everywhere. Instead of paying her for looking after her in these respects, Ms Charles provides her with largely free board and lodging. Ms Rhuppiah, a Seventh Day Adventist, cares for Ms Charles out of friendship, faith and habit. Were Ms Rhuppiah to leave the UK, Ms Charless health would be compromised, her life turned upside down, and she would have to turn to the state for care. After her final grant of leave expired in November 2009, Ms Rhuppiah twice failed to secure indefinite leave to remain in the UK, first because her residence here over the past ten years had not always been lawful, and second because she applied on the wrong form and by the time she reapplied the Immigration Rules, HC395 (the rules) had changed, fatally for her reapplication. The Home Secretary was then obliged to determine whether her reapplication could nevertheless succeed outside the rules, on the basis of her right to respect for the private life she had established in the UK, including her friendship with Ms Charles, under article 8 of the European Convention on Human Rights. The Home Secretarys determination on this basis was also negative. Ms Rhuppiah challenged the Home Secretarys decision at the First-tier Tribunal (FTT). Under section 117B(5) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act), little weight should be given to an applicants private life if it was established in the UK at a time when his or her immigration status was precarious. The FTT dismissed Ms Rhuppiahs challenge on the basis that this provision applied to her; and that, besides, she was not financially independent (another consideration, which section 117B(3) of the 2002 Act required the Home Secretary to weigh against her right to respect for her private life) as she depended on support from her father and from Ms Charles. Ms Rhuppiah appealed unsuccessfully to the Upper Tribunal and the Court of Appeal. Her appeal has now become academic, because she has now lived continuously in the UK for long enough to secure leave to remain by a different route. The Supreme Court nevertheless heard the appeal, because of the public importance of providing a definitive interpretation of the word precarious in section 117B(5).
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0083.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0083.txt
new file mode 100644
index 0000000000000000000000000000000000000000..0b5ec5770091d803a91ef96bc32ded297edbaa86
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0083.txt
@@ -0,0 +1 @@
+Broome Park is a substantial country estate near Canterbury. It originally included the Mansion House, Elham House and surrounding lands. In 1967, Elham House and adjoining land were conveyed away. This is the alleged dominant tenement of the disputed easement. The seller retained the rest of Broome Park, including the Mansion House (jointly the Park). This is the alleged servient tenement. In or before 1979, the Park was acquired by Gulf Investments Ltd (Gulf Investments) to develop a timeshare and leisure complex. The key features were the creation of: (i) timeshare apartments in the Mansion House; (ii) a communal club house for the timeshare owners and other paying members of the public in the Mansion House, including restaurant, TV, billiards and gymnasium facilities; and (iii) sporting and recreational facilities in the surrounding grounds, including a full golf course, outdoor heated swimming pool, tennis and squash courts and formal gardens. The individual purchasers of timeshare units formed the Broome Park Owners Club (BPOC). They were indirectly granted free use of the communal and leisure facilities within the lower part of the Mansion House and its surrounding grounds by a lease to another Gulf company in August 1980. Following the initial success of the development, Elham House was re-acquired in November 1980. Planning permission was obtained for the conversion and construction of 26 timeshare apartments using a freehold structure Regency Villas. By a transfer dated 11 November 1981, Gulf Investments transferred Elham House to an associated company (the 1981 Transfer). A further transfer took place on the following day, to a trustee for intended timeshare owners. Elham House was then held for the benefit of the Regency Villas Owners Club (RVOC) members. The grant of rights in the 1981 Transfer (the Facilities Grant) stated: the Transferee its successors in title its lessees and the occupiers from time to time of the property to use the swimming pool, golf course, squash courts, tennis courts, the ground and basement floors of the sporting or recreational facilities on the Transferors adjoining estate. Most of the relevant sporting and recreational facilities had been constructed by then. Subsequently, there was a reduction in the number of available facilities and a concern that they would deteriorate without contributions from the RVOC members. The swimming pool fell into disuse and was filled in by 2000. Other facilities, such as the putting green, croquet lawn, jacuzzi and roller skating rink, were closed and the riding stables were demolished. Further, from time to time, beginning in about 1983, the RVOC made voluntary contributions towards the cost of the facilities. When agreement about contributions broke down, the new owners of Broome Park denied that the RVOC timeshare owners had any enforceable rights as to the leisure complex, so that they could be charged for their use. The First Respondent (as freehold owner of Elham House) and the other Respondents (as individual RVOC timeshare members) claimed a declaration that they were entitled, under an easement, to free use of all the sporting and recreational facilities from time to time provided within the Park. They also sought an injunction restraining interference with their use of the facilities, and the return of sums paid for the use of the facilities since 2009, as damages for breach of the easement or by way of restitution. At trial before HHJ Purle QC, the Respondents succeeded in their claims, save recovery of payments for use of the facilities before 2012. In the Court of Appeal, they were again successful on the main issue about whether the Facilities Grant amounted to a grant of an easement. The judges decision was only reversed on matters of detail, such as the Respondents rights regarding a new swimming pool constructed in the basement of the Mansion House, which reduced the amount due. The Appellants succeeded in part in their counterclaim for quantum meruit. In the Supreme Court, the Appellants sought dismissal of all the claims and the Respondents sought restoration of the judges original order.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0096.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0096.txt
new file mode 100644
index 0000000000000000000000000000000000000000..63cc7947e09801662563a394f68490e1c61a3ccb
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0096.txt
@@ -0,0 +1 @@
+Mr Holden accidentally set fire to his car while repairing it at the premises of his employer, Phoenix Engineering. The fire caused 2 million of damage to Phoenix and its neighbours premises. Phoenixs insurer (Axa) paid out and has agreed not to pursue Mr Holden personally for the money, but only his car insurance provider (Churchill). Axa says that Mr Holden is covered by his car insurance policy's third party liability cover but Churchill says he is not. Clause 1a of the policy says we will cover you for your legal responsibility if you have an accident in your vehicle and: you kill or injure someone; [or] you damage their property . As required by law, the policy also includes a certificate that it satisfies the requirements of relevant legislation, which includes the Road Traffic Act 1988 (RTA). Under the RTA, car insurance policies must provide cover in respect of any liability incurred in respect of damage to property caused by, or arising out of, the use of the vehicle on a road or other public place. The High Court held that the policy did not cover Mr Holden's accident because it had arisen out of the negligent way in which it was being repaired and not out of the use of the car. The Court of Appeal (CA) allowed his appeal. It held that the wording of clause 1a was inadequate and had to be read with the certificate that the policy provided the cover required by law. As the policy had no geographical limitations, no such limitations were to be imposed in extending its cover to meet the statutory requirements. It accordingly construed the opening words of clause 1a to mean we will cover you for your legal responsibility if there is an accident involving your vehicle.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0106.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0106.txt
new file mode 100644
index 0000000000000000000000000000000000000000..fc32eb42f4725f2a2a1a6ef015369afa070c695d
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0106.txt
@@ -0,0 +1 @@
+Until 1960 Cyprus was a colony of the UK. In 1960, pursuant to the Cyprus Act, the Treaty concerning the Establishment of the Republic of Cyprus between the UK, Turkey Greece and Cyprus and an exchange of notes between the UK and Cyprus, Cyprus became an independent Republic. The territory of the new republic was composed of the island of Cyprus with the exception of two areas - Akrotiri and Dhekelia - which were retained under UK sovereignty as Sovereign Base Areas (SBAs) for the purposes of accommodating military bases. Article 40(1) of the United Nations Convention Relating to the Status of Refugees (1951) (the Convention) as modified by the Protocol Relating to the Status of Refugees (1967) (the Protocol) states that: any State may, at the time of signature, ratification or accession, declare that this Convention shall extend to all or any of the territories for the international relations of which it is responsible. On 24 October 1956, prior to Cypriot independence, the UK notified the UN Secretary-General that, subject to certain reservations, the Convention would be extended to Cyprus. Post independence, Cyprus notified the Secretary-General in 1963 that it had acceded to the Convention and in 1968 to the Protocol. No notification has ever been made by the UK specifically in relation to the SBAs post Cypriot independence. The Respondents are six refugees. In October 1998 they boarded a ship in Lebanon which was bound for Italy but which foundered off the coast of Cyprus. On 8 October 75 passengers including the respondents were airlifted to safety by RAF helicopters and brought to Akrotiri in south-western Cyprus. In due course they were accepted as lawful refugees under the Convention by the SBA Administration, and permitted to remain. The SBA Administration sought to persuade the UK government to allow them to resettle in the UK but this was not acceptable to Ministers. Ever since then they have lived in disused and highly unsatisfactory service accommodation in the SBA, while continuing to press for their admission to the UK, on the basis that this is the only practicable way for the UK to discharge its obligations to them under the Refugee Convention. The arrival of the Respondents in the SBAs followed by further arrivals in 2000 and 2001 gave rise to arguments between the SBAs and Cyprus about which of them was to be responsible for the refugees and asylum-seekers among them. These arguments were resolved for future arrivals on 20 February 2003 when the UK and Cyprus entered into a Memorandum of Understanding relating to illegal migrants and asylum seekers (the 2003 Memorandum). The agreement provided, in summary, for the full range of governmental services to be provided to refugees by Cyprus but at the expense of the UK. Shortly after the 2003 Memorandum, the SBA Administrator enacted the Refugee Ordinance 2003 which gave effect within the SBAs to rights substantially corresponding to those conferred by the Convention. The 2003 Memorandum did not apply to refugees such as the Respondents who had arrived in the SBAs prior to the date of its conclusion. The Appellants case is that in 2005 the Cypriot authorities agreed with the SBA Administration that they would deal with refugees recognised as such by the SBA Administration in accordance with the 2003 Memorandum irrespective of the date of their arrival in the SBAs. This agreement, however, has never been reduced to writing. The Respondents were unwilling for responsibility for them under the Convention to be transferred to the Republic, and did not accept that this could lawfully be done without their consent. They continued to press for admission to the UK, latterly with the support of the UN High Commissioner for Refugees (UNHCR). The unhappy course of the ensuing dispute is summarised in the judgment. It came to a head when in 2013, the Respondents formally asked to be admitted to the UK. In a decision dated 25 November 2014, the Secretary of State refused entry. The Respondents challenged that decision on the basis that it was inconsistent with the Convention. The High Court held that the Convention did not extend to the SBAs as a matter of international law, but quashed the Secretary of States decision on the basis that she had failed to take into account concerns raised by the UNHCR. The Court of Appeal overturned that decision, declared that the Convention did extend to the SBAs and directed the Secretary of State to make a fresh decision on whether to admit the Respondents to the UK, having regard to the UKs obligations under the Convention. On 6 July 2017, the Secretary of State made a fresh decision refusing to admit the Respondents on the basis that she considered that they could resettle in the Cyprus or, alternatively that the UK could comply with its obligations by arranging for the Respondents to be supported by Cyprus as agreed in 2005. The broad question at issue in the appeal is whether the Respondents are entitled or should be permitted to be resettled in the UK on the basis of the Convention or that in the exceptional circumstances of the case the Secretary of State should exercise his discretion to admit them. The specific issues identified by the Court as essential to the resolution of the appeal are as follows [60]: (i) Does the Convention (as extended by the 1967 Protocol) apply to the SBAs? (ii) Does the Convention by its terms entitle the Respondents to be resettled in the UK? (iii) Was the Memorandum of Understanding of 2003 a valid performance of the Convention obligations for those within its scope? In particular: a. Was the UK in principle entitled to fulfil its obligations under the Convention by arranging for support to be provided by Cyprus? b. If so, were the terms of the Memorandum of Understanding (including the 2003 Refugee Ordinance) a proper basis on which to do so? a. Was the UK entitled in 2005 to make the same arrangements in respect of the Respondents without their consent given their lawful and accepted presence as refugees in the SBAs since 2000 (it being accepted that the Respondents are entitled to continue to live in the SBAs [107])? b. If so, was the 2005 agreement with Cyprus a legally effective means of doing so, having regard to its informality and the absence of incorporation into SBA law? c. Has the support of Cyprus for the Respondents in accordance with the 2005 agreement been available in practice, and can it be assured in the future? (v) If the 2005 agreement, for whatever reason, was not a legally effective means of discharging the UKs obligations to the Respondents under the Convention, or if such support has not been available in practice, what are the consequences, in terms of rights or remedies potentially available in these proceedings, and how should the court give effect to them in its order? (iv) If the answer to (iii) is yes:
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0110.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0110.txt
new file mode 100644
index 0000000000000000000000000000000000000000..183059d082f8f550c09e37a0489a7cf0f1866dad
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0110.txt
@@ -0,0 +1 @@
+This case is about the application of EU food hygiene rules to certain chicken and pork products manufactured by the appellant, Newby Foods Ltd (Newby). Specifically, the appeal concerns whether these products should be classified as mechanically separated meat (MSM) within point 1.14 of Annex I to EU Regulation No 853/2004 (the Regulation). Newby argues they should not be classified as MSM. The Food Standards Agency (FSA) contends that they should be so classified. It is now common for the butchering of animal carcases in the food industry across the EU to be carried out by machines. These often leave a significant amount of meat on the bone. Under the Regulation, there are two types of MSM: (1) high pressure MSM and (2) low pressure MSM. The specific hygiene requirements for both are set by paragraphs 3-4, Chapter III, Section V, Annex III in the Regulation. Further, MSM cannot count towards food meat content and attracts specific labelling requirements. MSM produced from lamb and beef bones is prohibited entirely under EU law. Consequently, the commercial value of MSM is much lower than that of other fresh meat products. Newby has developed a machine to remove residual meat from carcase bones. It uses this to process residual meat on beef, lamb and pork bones after the initial boning of the animal carcases and on chicken carcases after the breasts have first been removed by other mechanical processes. The Newby process has two stages: (1) meat-bearing bones are forced into contact to remove meat by shearing and (2) meat so removed is then passed through a machine producing a product similar to minced meat. Newbys meat product was previously known in the UK as desinewed meat (DSM). It was widely regarded as distinct from MSM, including by the FSA. DSM is not a category recognised in EU law. On 4 April 2012, following criticism by the Commission, the FSA issued a moratorium with the result that DSM could (1) no longer be produced from residual meat on beef and lamb bones and (2) only be produced from residual meat on chicken and pork bones if classified and labelled as MSM. Newby brought judicial review proceedings challenging the moratorium. On 16 July 2013, Edwards-Stuart J in the High Court made a preliminary reference to the Court of Justice of the European Union (CJEU) on the definition of MSM in point 1.14 of Annex I of the Regulation (point 1.14). The CJEU made a preliminary ruling on 16 October 2014 (the CJEU judgment). After the CJEU judgment, Newby abandoned its challenge to the moratorium as to lamb and beef carcases, but not pork and chicken. On 23 March 2016, Edwards-Stuart J concluded that the pork and chicken meat products resulting from stage (1) of Newbys process are not MSM. He also found that such DSM was not a product derived from bone scrapings. The Court of Appeal allowed the appeal and dismissed the challenge to the moratorium, but upheld the judges finding as to bone scrapings. Newby now appeals to the Supreme Court on the proper interpretation of point 1.14 in light of the CJEU judgment.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0115.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0115.txt
new file mode 100644
index 0000000000000000000000000000000000000000..cedd223806f19815f641942ae89469211a57fa7f
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0115.txt
@@ -0,0 +1 @@
+On 26 May 2013, the respondent, Ms Bianca Cameron, was injured when her car collided with a Nissan Micra. It is not in dispute that the incident was due to the negligence of the driver of the Micra. The registration number of the Micra was recorded, but the driver made off without stopping or reporting the accident to the police and has not been heard of since. Mr Naveed Hussain, the registered keeper, was not the driver and has declined to identify the driver. He has been convicted of failing to disclose the drivers identity. The car was insured under a policy issued by the appellant, Liverpool Victoria Insurance Co Ltd, to a Mr Nissar Bahadur, whom the company believes to be a fictitious person. Neither Mr Hussain nor the driver was insured under the policy to drive the car. Ms Cameron initially sued Mr Hussain for damages. The proceedings were amended to add a claim against Liverpool Victoria Insurance for a declaration that it would be liable to meet any judgment against him. The insurer served a defence, denying liability on the ground that there was no right to obtain a judgment against him as there was no evidence that he was the driver. Ms Cameron then applied to amend her claim form and particulars of claim. She sought to substitute for Mr Hussain, as defendant, the person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZJZ on 26 May 2013. District Judge Wright dismissed that application and entered summary judgment for the insurer. HHJ Parker dismissed Ms Camerons appeal. On further appeal, the Court of Appeal allowed the appeal by a majority (Gloster and Lloyd Jones LJJ, Sir Ross Cranston dissenting). The majority considered that the court had a discretion to permit an unknown person to be sued whenever justice required it and that an alternative right of claim against the Motor Insurance Bureau (MIB) was irrelevant. Sir Ross Cranston would have dismissed the appeal in light of the alternative right to an MIB claim. Liverpool Victoria Insurance appealed to the Supreme Court in relation to two issues: (1) the power to issue or amend the claim form and (2) the compatibility of the Road Traffic Act 1988 (the 1988 Act) with the Sixth Motor Insurance Directive (2009/103/EC).
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0160.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0160.txt
new file mode 100644
index 0000000000000000000000000000000000000000..b5bd7f3d0800707b9de608b20a749c5f0ada63de
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0160.txt
@@ -0,0 +1 @@
+This appeal concerns the effect of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000 (SI 2000/1552) (the Transfer Order) and the GLA Roads Designation Order 2000 (SI 2000/1117) (the Designation Order). By combined operation of those Orders, responsibility for Greater London Authority (GLA) roads was transferred from individual London borough councils, including the Respondents (the Councils) as local highway authorities, to the Appellant (TfL). The provision at the heart of this appeal is article 2(1)(a) of the Transfer Order, which provides for the transfer of the highway, in so far as it is vested in the former highway authority. TfL and the Councils convened a statutory arbitration before Mr John Males QC. The purpose was to determine exactly what specified property and liabilities transferred to TfL in relation to each highway. The dispute between the parties is whether the automatic transfer of the highway under article 2(1)(a) of the Transfer Order carried with it: (i) only the zone of ordinary use (i.e. the road surface and the airspace and subsoil necessary for the operation, maintenance and repair of the road) or (ii) the entire vertical plane (i.e. all the airspace above and the subsoil below the surface of the road), to the extent that the relevant council already owned it prior to the transfer date. In the arbitration and at each stage on appeal, the Councils argued the transfer was limited to the former, while TfL argued for the latter, wider approach. The arbitrator broadly agreed with TfLs case. The caveat was that particular layers or slices of subsoil and/or airspace that had acquired a separate identity by the transfer date could not be treated as parts of the highway and so did not pass to TfL. On appeal to the High Court, Mr Justice Mann agreed with the arbitrator, recording a concession by counsel for TfL that its claim related to land acquired for or appropriated to highway purposes. However, on further appeal, the Court of Appeal adopted a narrower position. It considered that the word highway in article 2(1)(a) of the Transfer Order must have been intended to carry the same meaning as it had at common law, and in relation to section 263 of the Highways Act 1980 (the 1980 Act). Thus, the Court of Appeal held that only the zone of ordinary use had transferred to TfL.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0214.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0214.txt
new file mode 100644
index 0000000000000000000000000000000000000000..40518f2f2767c10984e586563f7539ba35ef59be
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2017-0214.txt
@@ -0,0 +1 @@
+Tadalafil is the generic name for a drug which is sold under the brand name CIALIS for the treatment of, among other things, erectile dysfunction (ED). Tadalafil is a competitor (second in class) to sildenafil, which was and is sold under the brand name, VIAGRA. The patent which is the subject of this appeal is EP(UK) 1,173,181 (the 181 patent). It is owned by ICOS and exclusively licensed to Eli Lilly (collectively Lilly). It was filed on 26 April 2000 and granted on 15 October 2003. The 181 patent relates to the use of tadalafil in a dosage form for the treatment of ED. This case is concerned with section 3 of the Patents Act 1977 (1977 Act): Section 2(2) of the 1977 Act provides: An invention shall be taken to involve an inventive step if it is not obvious to a person skilled in the art, having regard to any matter which forms part of the state of the art by virtue only of section 2(2) above (and disregarding section 2(3) above). The state of the art in the case of an invention shall be taken to comprise all matter (whether a product, a process, information about either, or anything else) which has at any time before the priority date of that invention been made available to the public (whether in the United Kingdom or elsewhere) by written or oral description, by use or in any other way. These statutory provisions mandate the court to assess whether an invention is obvious by having regard to the state of the art at the priority date of the invention. If the invention is not obvious to the skilled person at that date, section 3 deems the invention to involve an inventive step. Lilly asserts that the essence of the invention is the discovery that tadalafil is effective in treating ED at a low dose and with minimal side effects. This discovery has allowed the drug to be taken daily (for chronic use) rather than on demand, avoiding the need to anticipate when sexual activity might occur. This is, Lilly claims, a significant technical advantage as sildenafil is approved for on-demand use only. The respondents raised proceedings to revoke the 181 patent. Lilly defended the claim and counterclaimed that the respondents were threatening to infringe its patent. The High Court held that a 5mg daily dose of tadalafil was not obvious as a treatment for ED and therefore concluded that the 181 patent involves an inventive step. The Court of Appeal allowed the appeal on the ground that the 181 patent lacked inventive step. Lilly appealed to the Supreme Court.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2018-0030.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2018-0030.txt
new file mode 100644
index 0000000000000000000000000000000000000000..0c0b81e64cdc07ead39cf0fd12b49bbfa3f48ff1
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2018-0030.txt
@@ -0,0 +1 @@
+This is an application by the Attorney General for Northern Ireland under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 (the 1998 Act). Paragraph 34 provides that the Attorney General may refer to the Supreme Court any devolution issue which is not the subject of proceedings. A devolution issue includes a question whether a purported exercise of a function by a Northern Ireland Department is or would be invalid by reason of s. 24 of the 1998 Act. S. 24(1)(a) provides that a Department of Northern Ireland has no power to make, confirm or approve any subordinate legislation, or to do any act, so far as the legislation or act is incompatible with any of the rights guaranteed by the European Convention on Human Rights (the ECHR). By the Welfare Reform (Northern Ireland) Order 2015 (Commencement No. 8 and Transitional and Transitory Provisions) Order 2017, the Secretary of State commenced a number of universal credit provisions for claims on or after 27 September 2017 where the claimant resides in an area known as No. 1 relevant districts. Although it is for the Secretary of State to appoint the dates for commencement, he does so by a legislative technique which requires action by the Northern Ireland Department for Communities (part of the Northern Ireland Executive). The 2017 Order defines the No. 1 relevant districts as the postcodes specified in the table in the List of the No. 1 Relevant Districts. It is the Department for Communities which must issue such lists. The same holds true of a second order made by the Secretary of State relating to No. 3 relevant districts and No. 2 relevant districts. The basis for the Attorney Generals reference is his assertion that the universal credit provisions in question breach Article 1 Protocol 1, Articles 8, 14 and 12 of the ECHR and are therefore invalid per s. 24 of the Northern Ireland Act 1998. The Attorney General submits that the provision of lists by the Department for Communities is necessary in order to give effect to the Secretary of States commencement orders and thus constitutes an act, per s. 24 of the 1998 Act, which is incompatible with the ECHR and invalid. It is for this reason that the Attorney General submits that the publication of lists by the Department for Communities raises a devolution issue under Schedule 10 of the 1998 Act. The Department for Communities refutes this, contending that the provisions under challenge concentrated the power to make welfare provision in the office of the Secretary of State. The Department for Communities submits that its role in issuing the lists amounts to nothing more than providing administrative support to the Secretary of State, and that the lists have legal effects solely by reason of the act of the Secretary of State, not the act of the Department. The publication of lists is not, therefore, an act raising a devolution issue under s. 24 of the 1998 Act.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2018-0099.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2018-0099.txt
new file mode 100644
index 0000000000000000000000000000000000000000..85f562c60d237c2ff669bed3393bee56730d927b
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2018-0099.txt
@@ -0,0 +1 @@
+This appeal concerns the permitted uses of a retail store in Streatham in the London Borough of Lambeth. Planning permission was granted by the Secretary of State in 1985, but the use was limited by condition to sale of DIY goods and other specified categories, not including food. The permitted categories were extended by later consents (under section 73 of the Town and Country Planning Act 1990 (the 1990 Act)). The most recent was in 2014, which is in issue in this case. In that permission, the proposed new wording for the permission included: The conditions in the 2014 permission did not refer to the restriction on the sale of food goods, or to conditions in the previous permission from 2010. The second respondent (Aberdeen Asset Management) sought a certificate from the appellant Council determining that the lawful use of the store extended to sales of unlimited categories of goods including food. A certificate to that effect was refused by the Council, but granted by a planning inspector on appeal, on the basis that no condition was imposed on the 2014 permission to restrict the nature of the retail use to specific uses. This was upheld by the lower courts. The Council, as the local planning authority, appeals to this court.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2018-0131.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2018-0131.txt
new file mode 100644
index 0000000000000000000000000000000000000000..a21179b3c7b0913d4bb50b374144579303df03e1
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2018-0131.txt
@@ -0,0 +1 @@
+In 2001 Regeneron Pharmaceuticals Inc filed patents for a new type of genetically modified mouse. Regenerons breakthrough was a hybrid version of the gene that produces antibodies, combining a section of the mouses genetic material (the constant region DNA) with a section of genetic material from a human (the variable region DNA). The resulting mouse can be used to produce antibodies which are suitable for medical treatment in humans, but are sufficiently similar to mouse antibodies that they do not cause immunological sickness in the mouse. The idea of combining a human variable region with a mouse constant region was a major contribution to science. At the hearing in February 2020 the court was told that hybrid mice incorporating this invention had a range of medical uses, including in the race to generate antibody therapies against coronavirus. In 2013 Regeneron sued a British company, Kymab Ltd, for infringement of its patents. Kymab was producing its own genetically modified mice, branded Kymice, with a similar genetic structure to Regenerons mice. Kymab responded by arguing the patents filed by Regeneron in 2001 were invalid because they fell foul of a patent law rule called sufficiency. Sufficiency means documents filed with the patent must be detailed enough to enable scientifically skilled readers to make the invention for themselves. The Court of Appeal found that Regenerons patents contained enough information to enable a skilled reader to insert some of the human material into a mouses genes. This would have created one type of hybrid mouse. However, the patents did not explain how to create a hybrid structure incorporating the full human variable region genes into the mouses genome. That was a complicated feat of genetic engineering and no reliable method for doing it was invented until 2011. This meant an expert reading the patents in 2001 would be unable to make many types of hybrid mice which Regeneron had claimed to have invented. The Court of Appeal upheld the patents, saying there was no need for the patents to explain how to make the full range of mice because Regenerons idea was a principle of general application. Kymab appealed to the Supreme Court.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2018-0132.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2018-0132.txt
new file mode 100644
index 0000000000000000000000000000000000000000..24500b0a10674cc4863a8a7c516769fd45b2e818
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2018-0132.txt
@@ -0,0 +1 @@
+This appeal relates to a compensation scheme (the Scheme) set up in 1999 by the Department for Trade and Industry to provide tariff-based compensation to miners employed by the British Coal Corporation (British Coal) who suffered from a medical condition called vibration white finger (VWF) as a result of excessive exposure to vibration through the use of vibratory tools. The Scheme provided for compensation to be paid for pain, suffering and loss of amenity (General Damages) and handicap on the labour market and other financial losses including past and/or future loss of earnings (Special Damages), which could include a services award to cover the need for assistance in performing specified domestic tasks. Rather than conducting an individual assessment of each claimants ability to carry out the specified tasks, the Scheme applied a presumption based on the condition reaching a certain level of severity. Mr Arthur Watkins was employed by British Coal as a miner from 1964 until 1985 and had developed VWF by the early 1980s. In 1999 he instructed the appellant to act for him in relation to a claim under the Scheme. Findings from a medical examination and interview indicated that Mr Watkins could obtain General Damages and qualified for the presumption in his favour that he satisfied the requirements for a services award. Mr Watkins sought a services award. In 2003 he was instead offered the tariff award for General Damages in full and final settlement of his claims. The appellant wrote to Mr Watkins on 18 February 2003 reporting the offer. After a telephone conversation with an employee of the appellant, Mr Watkins accepted the offer. In 2008, Mr Watkins instructed new solicitors to bring a claim against the appellant for professional negligence, on the basis that as a result of the appellants negligence Mr Watkins had lost the opportunity to bring a services claim under the Scheme. Mr Watkins died in 2014 and his daughter, Mrs Jean Edwards, was appointed to continue the claim on behalf of his estate. The first-instance court held that the letter of 18 February 2003 and the advice given had been negligent and that had Mr Watkins received appropriate advice he would probably have rejected the offer and pursued his services claim. A jointly instructed medical expert, who had been instructed not to apply the presumption that would have applied under the Scheme, provided a report that concluded Mr Watkinss symptoms would have been insufficient to succeed on a services claim. The court therefore held that Mr Watkins had suffered no loss and dismissed the claim. Mr Watkins successfully appealed to the Court of Appeal, which decided that the trial judge had been wrong to determine the value of the services claim on the basis of evidence that would not have been available at the time of the notional claim. The appellant seeks to appeal that decision. The issue in the appeal is whether, in assessing the prospects of success of the negligence claim, the court should have taken account of the further medical report.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2018-0140.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2018-0140.txt
new file mode 100644
index 0000000000000000000000000000000000000000..3b81325f8be3e231a0b96b922607fb3557e3f6af
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2018-0140.txt
@@ -0,0 +1 @@
+The appellant, DN, is a Rwandan national who was granted refugee status in the UK pursuant to the 1951 Refugee Convention on 26 October 2000. He was subsequently convicted in the UK of a number of offences, the most serious of which occurred on 22 January 2007 when he pleaded guilty to assisting the unlawful entry of a non-EEA (European Economic Area) national in the UK contrary to section 25 of the Immigration Act 1971 (the 1971 Act). He was sentenced to 12 months imprisonment for the Immigration Act offence and two months consecutively for each of three pecuniary advantage offences making a total sentence of 18 months imprisonment. The Secretary of State for the Home Department has powers, under the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) to order the deportation of persons convicted of serious offences. Section 72(4)(a) of the 2002 Act provides that a person shall be presumed to have been convicted of a particularly serious crime and to constitute a danger to the community of the United Kingdom if s/he is convicted of an offence specified by order of the Secretary of State. The Secretary of State specified several offences which were said to be particularly serious crimes by way of the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 (the 2004 Order). Assisting unlawful immigration contrary to section 25 of the 1971 Act was included among them. At the conclusion of DNs imprisonment on 2 July 2007, the Secretary of State made a decision to deport DN, based on s. 72(4)(a) of the 2002 Act: DN was presumed, on the basis of the 2004 Order, to have been convicted of a particularly serious crime and to constitute a danger to the community. On 31 January 2008, the Secretary of State, using his powers of administrative detention conferred by Schedule 3, paragraph 2(3) of the 1971 Act, ordered DNs detention pending deportation. DN brought a claim for judicial review of the deportation order. Following a stay and the decision in EN (Serbia) v Secretary of State for the Home Department [2009] EWCA Civ 630, [2010] QB 633, which determined that the 2004 Order was unlawful, DN amended his judicial review proceedings to concentrate on the lawfulness of the detention. Following a further stay and the decision in R (Draga) v Secretary of State for the Home Department [2012] EWCA Civ 842, where the Court of Appeal ruled detention lawful even where based on an unlawful deportation order, the Court of Appeal dismissed DNs substantive appeal.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2018-0154.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2018-0154.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e8b6fb90fbf0ddd6f191b4963db6555dbda485f1
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2018-0154.txt
@@ -0,0 +1 @@
+This appeal concerns whether certain rules of the Visa and Mastercard payment card schemes have the effect of restricting competition, in breach of article 101(1) of the Treaty on the Functioning of the European Union (TFEU) and equivalent national legislation. The appellants, Visa and Mastercard, operate open four-party payment card schemes. Under these schemes, issuers (generally banks) issue debit and/or credit cards to cardholder customers and acquirers (also generally banks) provide payment services to merchants (such as the respondents). The scheme operator, Visa or Mastercard, sets the rules of the scheme and allows institutions to join as issuers and/or acquirers. The schemes operate as follows. A cardholder contracts with an issuer, which agrees to provide the cardholder with a Visa or Mastercard debit or credit card. It agrees terms on which they may use the card to buy goods or services from merchants, which may include a fee paid by the cardholder, an interest rate for credit, and incentives or rewards paid by the issuer to the cardholder for using the card (such as airmiles or cashback). Merchants contract with an acquirer, which agrees to provide services to the merchant enabling acceptance of the cards for a fee. This is known as the merchant service charge (MSC). To settle a transaction made between a cardholder and a merchant, the issuer pays the acquirer, who passes the payment on to the merchant, less the MSC. The rules of both schemes provide for the payment of a default interchange fee, known as the multilateral interchange fee (MIF), on each transaction, which is payable by the acquirer to the issuer. Though under the rules acquirers and issuers are not required to contract based on the MIF, in practice they invariably do so. Visa and Mastercard do not receive any part of the MIF or the MSC. Their remuneration comes from scheme fees paid by issuers and acquirers. For most of the claim period, the MIF typically accounted for some 90% of the MSC. Acquirers passed on all of the MIF to the merchants through the MSC, with negotiation between acquirers and merchants in respect of the MSC being limited to the level of the acquirers margin. Schemes such as the Visa and Mastercard schemes operate in a two-sided market. On one side, issuers compete for the business of cardholder customers. On the other side, acquirers compete for the business of merchants to whom they seek to offer acquiring services. These proceedings concern the effect of MIFs on competition in the acquiring market. Article 101(1) TFEU prohibits agreements between companies that may affect trade between member states, and which have as their object or effect the restriction of competition. Article 101(3) provides for an exemption where the agreement improves the production or distribution of goods or promotes technical or economic progress while allowing consumers a fair share of the resulting benefit. These provisions are reflected in sections 2 and 9 of the Competition Act 1998 (the 1998 Act), respectively. The Visa and Mastercard schemes have previously been subject to scrutiny by competition authorities. In a decision dated 19 December 2007, the European Commission decided that the Mastercard MIFs applicable within the European Economic Area (EEA MIFs) breached article 101(1) (the Mastercard Commission Decision). Mastercard applied to the Court of Justice of the European Union (the CJEU) for annulment of the Mastercard Commission Decision, which was dismissed by a judgment of the General Court (Mastercard GC). Mastercard appealed this decision to the Court of Justice, which gave judgment dismissing the appeal (Mastercard CJ). The present appeal relates to three sets of proceedings. In the first, brought by Sainsburys Supermarkets Ltd (Sainsburys) against Mastercard, the Competition Appeal Tribunal (the CAT) held that Mastercard MIFs in the UK (UK MIFs) restricted competition by effect and awarded damages to Sainsburys. In the second, brought by Asda Stores Ltd, Argos Ltd and others, and WM Morrison Supermarkets plc (together AAM) against Mastercard, Popplewell J in the Commercial Court found that Mastercards EEA MIFs, UK MIFs and MIFs in the Republic of Ireland (Irish MIFs) did not infringe article 101 and were exempt under article 101(3) in any event. In the third, brought by Sainsburys against Visa, Phillips J in the Commercial Court dismissed the claim and found that Visas UK MIFs did not restrict competition in the acquiring market. At the request of the parties, Phillips J gave an additional judgment, in which he found that if the MIFs did restrict competition, they were not exempt under article 101(3). The appeals in these three sets of proceedings were heard together by the Court of Appeal, which overturned all four judgments given below. It held that there was restriction of competition and made various rulings as to the legal effect of article 101(3). The Court of Appeal remitted the article 101(3) exemption issue in all three sets of proceedings to the CAT for reconsideration in the light of the legal rulings it had made and based on the evidence adduced in all three cases. Visa and Mastercard seek to appeal the Court of Appeals decision on four grounds. AAM seek to cross-appeal against the order for remittal.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2018-0164.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2018-0164.txt
new file mode 100644
index 0000000000000000000000000000000000000000..d317b8fbd55d60529dad08853641b3f1240e71e1
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2018-0164.txt
@@ -0,0 +1 @@
+In this appeal, the Supreme Court is asked to decide whether Barclays Bank is vicariously liable for sexual assaults allegedly committed between 1968 and about 1984 by the late Dr Gordon Bates. Dr Bates was a self-employed medical practitioner with a portfolio practice. His work included conducting medical assessments and examinations of prospective Barclays employees. Barclays required job applicants to pass a pre-employment medical examination as part of its recruitment and employment procedures. Barclays arranged the appointments with Dr Bates and provided him with a pro forma report headed Barclays Confidential Medical Report. Dr Bates was paid a fee for each report; Barclays did not pay him a retainer. If the report was satisfactory, the applicants job offer would be confirmed, subject to satisfactory GCE examination results. Dr Bates conducted the (unchaperoned) medical examinations in a consulting room at his home. It is alleged that Dr Bates sexually assaulted the 126 claimants in this group action during their medical examinations. After Dr Bates died in 2009, the claimants sought damages from Barclays. At first instance, the judge held that Barclays is vicariously liable for any assaults that Dr Bates is proved to have perpetrated. The Court of Appeal agreed and dismissed Barclays appeal. Barclays now appeals to the Supreme Court.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2018-0225.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2018-0225.txt
new file mode 100644
index 0000000000000000000000000000000000000000..fdbb40a3c1e1d4bbedc3bf4b2ee30aea5e1a72cd
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2018-0225.txt
@@ -0,0 +1 @@
+These appeals concern the treatment for rating purposes of ATMs situated in supermarkets or shops owned and operated by the retailers. There are two main issues: (1) whether the sites of the ATMs are to be properly identified as separate hereditaments (see below for definition) from the stores; and, if so (2) who was in rateable occupation of the separate hereditaments? The appeals in this case are designated as lead appeals. Appeals relating to some 10,000 other sites have been stayed pending the final decision in these cases. The appellants in this case are the valuation officers; the respondents are the retailers, banks, and ATM operators. In each of these appeals the ATMs are installed and operated not directly by the retailers but under contractual arrangements with related banking companies. The ATMs fall into four categories: 1. External ATMs (e.g. Sainsburys Worcester store): these ATMs are found in the external walls of stores and can be used 24 hours a day. They are chained to the floor of the cash room of the stores and are connected to the stores electricity supplies. The money dispensed is owned by the bank but kept in the cash room of the stores. 2. Internal ATMs (e.g. some Tesco stores): these ATMs are available only for use within the stores and can only be accessed within the stores opening hours. For all other practical purposes the arrangement are the same as with the external ATMs. 3. Convenience store ATMs (e.g. Londis Harefield store): these ATMs are similar to other external ATMs. However, because of the much-reduced floor space of these stores, the maintenance and loading of the ATMs lead to greater interference with the stores workings. 4. Moveable ATMs (the only example on appeal being at Tescos Nottingham store): these ATMs can be unbolted from the floor and moved without difficulty. Hereditament is defined in s.115(1) of the General Rate Act 1967 (the 1967 Act) as property which is or may become liable to a rate, being a unit of such property which is, or would fall to be, shown as a separate item on the valuation list. This is adopted into the current statutory scheme by s.64(1) of the Local Government Finance Act 1988 (the 1988 Act). As to the definition of rateable occupation, s.65(2) of the 1988 Act provides that whether a hereditament is occupied, and who is the occupier are to be determined by reference to the rules which would have applied under the 1967 Act. By virtue of the Valuation for Rating (Plant and Machinery) (England) Regulations 2000 (SI 2000/540) (the 2000 Regulations), an ATM must be assumed to have no effect on the rateable value of the hereditament on which it is sited. At first instance the Valuation Tribunal for England held that all of the ATMs were situated on hereditaments which were rateably occupied separately from the host stores. This was overturned by the Upper Tribunal (Lands Chamber) which held that that, save for the moveable ATM, all of the ATMs were situated on hereditaments separate from the host stores; but that only the external ATMs were rateably occupied separately from the host stores. This was overturned on appeal by the Court of Appeal which held that none of the ATMs were rateably occupied separately from the host stores.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2019-0001.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2019-0001.txt
new file mode 100644
index 0000000000000000000000000000000000000000..afa94bdbb8410d2da486aee306ee7a396f6987fe
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2019-0001.txt
@@ -0,0 +1 @@
+This appeal raises two important questions about the interpretation and application of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the Listed Buildings Act). The case concerns the correct treatment of a pair of early 18th century lead urns resting on limestone pedestals (the items). The items were originally commissioned for a historic garden at Wrest Park in Bedfordshire where they remained until 1939 but have been moved a number of times since then. In 1973 they were moved by Major Dill (Mr Dills father) to the garden of Idlicote House. In June 1986 the items were added to the list of listed buildings under s.54 of the Town and Country Planning Act 1971. There is no record of notice of the listing having been served, but in due course it was included in the register of local land charges. In 1993 the Mr Dill (the appellant) acquired the house and the items. He was not aware of the items presence on the list. In 2009 he sold them at auction. On 29 April 2015 the district council (the second respondents) wrote to the Mr Dill informing him that listed building consent had been required for the items to be removed. His retrospective application for consent was refused on 11 February 2016, following which on 26 April 2016 the council issued a listed building enforcement notice requiring the reinstatement of the items at Idlicote House. He appealed against the refusal of listed building consent and the issuing of the enforcement notice to the Secretary of State for Housing, Communities and Local Government (the first respondent). The grounds of appeal included the argument that the items were not buildings for the purposes of the Listed Buildings Act. The appeals were dismissed by a planning inspector on 19 January 2017. He took the view that the status of the items as buildings was established by the listing; that he could not reconsider the issue. Mr Dills appeal was rejected by the High Court (Singh J) and the Court of Appeal (McCombe and Coulson LJJ). Both courts below held that listing was conclusive of the items being buildings.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2019-0028.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2019-0028.txt
new file mode 100644
index 0000000000000000000000000000000000000000..3c3264b859945cb94c1e59a37cf4f3343a28ea8e
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2019-0028.txt
@@ -0,0 +1 @@
+The appellant was arrested in the United Kingdom in 2017 and charged with one count of conspiracy to commit torture and seven counts of torture, contrary to section 134 of the Criminal Justice Act 1988 (CJA). The charges relate to events in the early stages of the first Liberian civil war in 1990 when an armed group, the National Patriotic Front of Liberia (NPFL), took control of parts of Liberia. Its leader, Charles Taylor, subsequently became President of Liberia in 1997. The point of law raised in the appeal, and certified by the court below, relates to the correct interpretation of the term person acting in an official capacity in section 134(1) of the CJA. The prosecution maintained that at the time and place of the alleged offences, the NPFL was the de facto military government with effective control of the relevant area. Charles Taylor and those acting for and with him, including the appellant, were therefore acting in an official capacity for, and on behalf of, the NPFL. The appellant denied involvement in the offences and asserted that at no time did she act in an official capacity for the NPFL, nor was the NPFL the de facto government authority in the relevant locations. The appellant made an application to dismiss the charges. The judge concluded that section 134 applies not only to entities tolerated by or acting under the authority of a government but also, in situations of armed conflict, to individuals who act in a non-private capacity as part of an authority-wielding entity. Accordingly, the judge ruled that there was a case to answer on all counts. The appellant appealed to the Court of Appeal, which dismissed the appeal, holding that section 134 CJA is not confined to individuals acting on behalf of a State. It held that section 134 covers any person who acts otherwise than in a private and individual capacity for or on behalf of an organisation or body which exercises or purports to exercise the functions of government over the civilian population, whether in peace time or during armed conflict. The appellant appealed the decision to the Supreme Court.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/background/uksc-2020-0042.txt b/UK-Abs/test-data/summary/segment-wise/background/uksc-2020-0042.txt
new file mode 100644
index 0000000000000000000000000000000000000000..671d7b894413b050f6d8c43872513bbfa4fb94cc
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/background/uksc-2020-0042.txt
@@ -0,0 +1 @@
+This appeal concerns the lawfulness of the Airports National Policy Statement (the ANPS) and its accompanying environmental report. The ANPS is the national policy framework which governs the construction of a third runway at Heathrow Airport. Any future application for development consent to build this runway will be considered against the policy framework in the ANPS. The ANPS does not grant development consent in its own right. Successive governments have considered whether there is a need for increased airport capacity in the South East of England. The Secretary of State for Transport (the Secretary of State) declared that the Government accepted the case for airport expansion in 2015. He announced that the North West Runway (NWR) scheme was the preferred scheme in October 2016. The UK was separately developing its policy on environmental issues and climate change. On 22 April 2016 the UK signed the Paris Agreement under the United Nations Framework Convention on Climate Change (the Paris Agreement). The UK ratified the agreement on 17 November 2016. The agreement sets out various targets for the reduction of greenhouse gas emissions, particularly carbon dioxide, and the reduction of temperature increases resulting from global warming (the Paris Agreement Targets). Two Government ministers Andrea Leadsom MP and Amber Rudd MP made statements about the Governments approach to the Paris Agreement in March 2016. Against this background, the Secretary of State designated the ANPS as national policy on 26 June 2018. Objectors to the NWR scheme, including Friends of the Earth Ltd (FoE) and Plan B Earth, challenged the lawfulness of the Secretary of States designation on a number of grounds. The Divisional Court dismissed all of the objectors various claims in two separate judgments. The Court of Appeal upheld the main parts of these judgments on appeal but allowed some of FoE and Plan B Earths grounds. It held the Secretary of State had acted unlawfully in failing to take the Paris Agreement into account when designating the ANPS. Accordingly, the ANPS was of no legal effect. The Secretary of State does not appeal the Court of Appeals decision. However, the company which owns Heathrow Airport, Heathrow Airport Ltd (HAL), is a party to the proceedings and has been granted permission to appeal to the Supreme Court. HAL has stated that it has already invested a large sum of money in promoting the NWR scheme and wishes to make an application for development consent to carry the project through.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2009-0022.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2009-0022.txt
new file mode 100644
index 0000000000000000000000000000000000000000..c1c0c7eeaab197a948f8c8cdc3e879a9ceafeacc
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2009-0022.txt
@@ -0,0 +1 @@
+The Supreme Court, by a majority, allows the appeal. Lord Hope gives the leading judgment; Lady Hale and Lord Kerr issue separate concurring judgments. The majority holds that the Appellants detention was unlawful for the periods in respect of which no review was carried out and that he does have a claim in tort for false imprisonment in respect of those periods. The amount of damages is yet to be ascertained, but will be nominal if it is found that the Appellant would have been detained even if his detention had been reviewed as the policy required. Lord Brown gives a dissenting judgment, with which Lord Rodger agrees.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2009-0073.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2009-0073.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e1f07db7afc9811b115740f658c5e28606ba9e52
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2009-0073.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously dismissed the appeal. The judgment of the court was given by Lord Phillips, President. witnesses on his behalf under the same conditions as witnesses against him.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2009-0105.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2009-0105.txt
new file mode 100644
index 0000000000000000000000000000000000000000..9495029314f16f64bd695931701266dfafd5cebf
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2009-0105.txt
@@ -0,0 +1 @@
+The Supreme Court has dismissed the appeal by The Governing Body of JFS. On the direct discrimination issue, the decision was by a majority of five (Lord Phillips, Lady Hale, Lord Mance, Lord Kerr and Lord Clarke) to four (Lord Hope, Lord Rodger, Lord Walker and Lord Brown). The Majority held that JFS had directly discriminated against M on grounds of his ethnic origins. Lords Hope and Walker in the minority would have dismissed the appeal on the ground that JFS had indirectly discriminated against M as it had failed to demonstrate that its policy was proportionate. Lords Rodger and Brown would have allowed JFSs appeal in its entirety. The Supreme Court unanimously allowed in part the United Synagogues appeal on costs.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2009-0118.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2009-0118.txt
new file mode 100644
index 0000000000000000000000000000000000000000..6476fe1aeecf84dbacdd893695daa1a528ad2c6b
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2009-0118.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allows the appeal. The Court holds that Enviroco is not entitled to a contribution from Asco under section 3(2) of the 1940 Act because it cannot establish that if sued Asco might have been liable to Farstad in respect of losses caused by the fire. Lord Clarke delivered the leading judgment.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2009-0125.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2009-0125.txt
new file mode 100644
index 0000000000000000000000000000000000000000..23b00d2e2672ceb6ed8edec49259a32f00477118
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2009-0125.txt
@@ -0,0 +1 @@
+The Supreme Court, by a majority of three to two (Lord Rodger and Lord Kerr dissenting), dismisses the appeals. The Court holds that the provision in question was within the Scottish Parliaments legislative competence. Lord Hope delivered the leading judgment on behalf of the majority.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2009-0127.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2009-0127.txt
new file mode 100644
index 0000000000000000000000000000000000000000..23b00d2e2672ceb6ed8edec49259a32f00477118
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2009-0127.txt
@@ -0,0 +1 @@
+The Supreme Court, by a majority of three to two (Lord Rodger and Lord Kerr dissenting), dismisses the appeals. The Court holds that the provision in question was within the Scottish Parliaments legislative competence. Lord Hope delivered the leading judgment on behalf of the majority.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2009-0129.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2009-0129.txt
new file mode 100644
index 0000000000000000000000000000000000000000..0eb22b404bca58950ad12defac3f948b3ea96d17
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2009-0129.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously dismisses the appeal, with Lord Rodger delivering the leading judgment of the Court.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2009-0152.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2009-0152.txt
new file mode 100644
index 0000000000000000000000000000000000000000..3ff60d793f61d9bb139070e4b0f8ef54b3b818ac
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2009-0152.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allowed the appeal and set aside paragraph 1 of the order of Teare J dated 20 October 2006 substituting APSA for APMSD in the present action. Lord Rodger gave the judgment of the Court.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2009-0167.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2009-0167.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e69de29bb2d1d6434b8b29ae775ad8c2e48c5391
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2009-0180.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2009-0180.txt
new file mode 100644
index 0000000000000000000000000000000000000000..8ba0abc8886f38fe0670d6832e4afb24d8f113a6
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2009-0180.txt
@@ -0,0 +1 @@
+In a judgment of the Court delivered by Lord Neuberger, the Supreme Court unanimously dismissed the appeal (but for different reasons from those of the County Court and the Court of Appeal).
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0039.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0039.txt
new file mode 100644
index 0000000000000000000000000000000000000000..aef5b33351d277b88e431e0fc77b590eec587ba4
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0039.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allowed the appeal. The substantive judgment was given by Lord Clarke, with whom the other Justices agreed.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0106.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0106.txt
new file mode 100644
index 0000000000000000000000000000000000000000..f074a100e66ce41ae0775eca2c09879bb0e0e71e
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0106.txt
@@ -0,0 +1 @@
+The Supreme Court by a majority of 8-1 allows the Home Offices appeal and sets aside the declaration made by the Court of Appeal requiring the provision of a gist. Lord Kerr dissents. The Supreme Court unanimously dismisses Mr Tariqs cross-appeal, holding that a closed material procedure is compatible with Article 6 of the European Convention on Human Rights and EU Law.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0127.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0127.txt
new file mode 100644
index 0000000000000000000000000000000000000000..135c4ee605f5aa96ed1ddf820225b53db814b475
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0127.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allows the appeal and restores the order of the High Court. Lord Clarke gives the sole judgment, with which Lords Phillips, Mance, Kerr and Wilson agree.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0128.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0128.txt
new file mode 100644
index 0000000000000000000000000000000000000000..5ae520c7fd78b8fb0c4a977606938ba0d993192f
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0128.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allows the appeal. Lord Hope and Lady Hale give the judgment of the Court. The Court holds that the sheriffs order of 27 October 2006 was not incompetent and so recalls the First Divisions interlocutor and dismisses the petition. The Court declares that section 93(2)(b)(c) of the Children (Scotland) Act 1995 should be read so as to include the words or who appears to have established family life with the child with which the decision of a childrens hearing may interfere. The Court makes a finding that K is a relevant person within the meaning of section 93(2)(b)(c) as so read.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0154.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0154.txt
new file mode 100644
index 0000000000000000000000000000000000000000..3d6a8a5b6c95ee933b9b325765f5aed4b3113ecc
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0154.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously dismisses the appeal and remits the case to the employment tribunal to deal with the merits of the respondents claim that he was dismissed unfairly. The judgment is given by Lord Hope.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0189.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0189.txt
new file mode 100644
index 0000000000000000000000000000000000000000..2e656b6c4f624fd1e4aeeb1b26dc620d5c7e9171
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0189.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously dismisses the HSEs appeal. Lord Carnwath gives the leading judgment of the Court with which all other Justices agree.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0201.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0201.txt
new file mode 100644
index 0000000000000000000000000000000000000000..8f855fb47bb19562bce97da584be9349a81ffb00
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0201.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously dismisses the appeal and remits the case to the Employment Tribunal on the outstanding issue. Lady Hale gives the lead judgment with which the other members of the Court agree. Lord Hope adds some further comments.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0231.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0231.txt
new file mode 100644
index 0000000000000000000000000000000000000000..49f833313bc73ee87047f76c0eb9c9795df34b72
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0231.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously refuses the request for a reference to the Court of Justice of the European Union, dismisses the appeal, and affirms the interlocutor of the Extra Division of the Court of Session. The judgment is given by Lord Hope.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0236.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0236.txt
new file mode 100644
index 0000000000000000000000000000000000000000..5eebcc0f4e22b2f56b7ecac3c962f7e2cc542b25
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0236.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously dismisses the appeal. There is no failure to comply with the European legal principles of effectiveness and legal certainty; the statutory limitation period is sufficiently clear, precise and foreseeable as to allow individuals to ascertain their rights and obligations and to exercise those rights without excessive difficulty. The judgment of the Court is given by Lord Mance.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0244.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0244.txt
new file mode 100644
index 0000000000000000000000000000000000000000..d594e033692335c05ba82cb47aed8ab3f3cfb57a
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2010-0244.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allows the appeal. It holds that the general practice of not awarding costs in care proceedings against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, should not be subject to an exception in the case of discrete fact- finding hearings. Lord Phillips delivers the judgment of the court.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0011.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0011.txt
new file mode 100644
index 0000000000000000000000000000000000000000..fdec195bc8c6b4c15d305ff0257a34a50e60cb80
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0011.txt
@@ -0,0 +1 @@
+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.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0024.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0024.txt
new file mode 100644
index 0000000000000000000000000000000000000000..605fd185b657317ac9cc9999d677a9fe6a989696
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0024.txt
@@ -0,0 +1 @@
+The Supreme Court, by a 4-1 majority, dismisses the Secretary of States appeal on the grounds that the refusal to grant marriage visas to the Respondents was an infringement of their rights under Article 8 ECHR. Lord Wilson gives the leading judgment; Lady Hale gives a concurring judgment. Lord Phillips and Lord Clarke agree with Lord Wilson and Lady Hale. Lord Brown gives a dissenting judgment.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0046.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0046.txt
new file mode 100644
index 0000000000000000000000000000000000000000..3372c8286ddcd08de56592df6d96ec3f562fab8e
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0046.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allows the appeal and restores the decision of the Employment Tribunal permitting the claims to be brought. The tribunal will now proceed to decide whether the appellants work is in fact of equal value to that of the comparators and, if so, whether there is an explanation other than the difference in sex for the difference between their terms and conditions. Lady Hale gives the only judgment.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0089.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0089.txt
new file mode 100644
index 0000000000000000000000000000000000000000..29ac15f2b41dc8680160cd857f1cc7bb1d9db31e
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0089.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously (i) dismisses the appeal in Futter, and the appeal in Pitt, so far as they turn on the rule in Hastings-Bass, (ii) allows the appeal in Pitt on the ground of mistake, and sets aside the SNT. Lord Walker gives the judgment, with which the other Justices agree.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0115.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0115.txt
new file mode 100644
index 0000000000000000000000000000000000000000..c2596b4b0bc2c08fa7a61aded875d1b5593f21dc
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0115.txt
@@ -0,0 +1 @@
+The Supreme Court, by a majority of 3:2 (Lord Mance and Lady Hale dissenting), dismisses the appeal. Lord Wilson gives the lead judgment for the majority.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0117.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0117.txt
new file mode 100644
index 0000000000000000000000000000000000000000..f753c03aa4d67f906365397df253bc4b2a9d7276
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0117.txt
@@ -0,0 +1 @@
+The Supreme Court allows the Councils appeal. It holds that section 176 of the 1996 Act does not preclude local authorities from offering a homeless family two separate units of accommodation. The lead judgment for the majority is given by Lord Carnwath. Lord Kerr gives a dissenting judgment.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0196.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0196.txt
new file mode 100644
index 0000000000000000000000000000000000000000..6a73d868f82d0828eb820a0143ff80a8cb764f54
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0196.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allows the appeal by Mrs Szepietowski. Lord Neuberger, with whom Lord Sumption and Lord Reed agree, holds that the 2009 Charge did not create, or acknowledge the existence of, any debt from Mrs Szepietowski, or anyone else, to SOCA, save that under its terms, she was bound to pay SOCA an amount of up to 1.24m out of such sum if any, as remained from the proceeds of sale of Claygate after any prior claim had been met [40-43]. As a matter of principle, marshalling is not available to a second mortgagee where the common property does not secure a debt due from the mortgagor, but is merely available as security for whatever amount the second mortgagee can extract from that property. In such a case, there is nothing from which the right to marshal against the other property can arise [46-50]. Not least because marshalling is an equitable remedy, whether it is available in any particular case may depend on the circumstances. However, where there is no surviving debt due from the mortgagor to the second mortgagee after the sale and distribution of proceeds of sale of the common property, in the absence of express words which permit or envisage marshalling, it is hard to conceive how marshalling would be available [56-58]. If, contrary to this conclusion, marshalling is in principle available to a second mortgagee where there is no underlying debt, Mrs Szepietowskis appeal would still have been allowed. Where facts arise which potentially give rise to the right to marshal, the correct approach is to ask whether, in the perception of an objective reasonable bystander at the date of the grant of the second mortgage, taking into account (i) the terms of the second mortgage, (ii) any contract or other arrangement which gave rise to it, (iii) what passed between the parties prior to its execution, and (iv) all the admissible surrounding facts, it is reasonable to conclude that the second mortgagee was nonetheless not intended to be able to marshal [60-62]. The statutory background to, and the terms of, the 2009 Charge and of the Settlement Deed, coupled with all the surrounding circumstances demonstrate that the parties did not intend SOCA to have the right to marshal [64-72]. The fact that Ashford House was Mrs Szepietowskis home is one of the relevant background facts for that purpose, but it was insufficient on its own to prevent a right to marshal if such a right otherwise existed. Where the requirements of the right to marshal are otherwise present, it would require a contractually enforceable obligation, or something close thereto, on the first mortgagee to enforce against the common property in priority to the other property, for the second mortgagee to lose the right to marshal [73-77]. Lord Carnwath and Lord Hughes would allow the appeal on the narrower basis, namely that, read against the statutory background provided by the 2002 Act, and the fact that the 2009 Charge excluded any personal liability on the part of Mrs Szepietowski, that Charge impliedly excluded recourse to any source for payment other than those identified, and in particular excluded the right to marshal.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0233.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0233.txt
new file mode 100644
index 0000000000000000000000000000000000000000..04f2faa8f70b18fe55277ebf3172fe0bad376efb
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0233.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously dismisses the appeal. Lord Kerr gives the judgment of the court.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0244.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0244.txt
new file mode 100644
index 0000000000000000000000000000000000000000..d5d9143f50aec6f79f6228f9373940fc98fbfe33
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0244.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously dismisses the appeal. There is no general rule that an authority such as the FSA, acting pursuant to a public law duty, should be required to give a cross-undertaking in respect of losses incurred by third parties. Further, there are no particular circumstances which mean that the FSA should be required to give such a cross-undertaking on the facts of this case. The judgment of the Court is given by Lord Mance.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0260.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0260.txt
new file mode 100644
index 0000000000000000000000000000000000000000..aa4100edad0516647ea243d9c84e81a198730275
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2011-0260.txt
@@ -0,0 +1 @@
+The Supreme Court considers option (b) to be correct, and unanimously allows the appeals to the extent of declaring that a targets liability under the FSD regime, arising pursuant to an FSD issued after the company has gone into administration, ranks as a provable debt of the company, and does not rank as an expense of the administration. Lord Neuberger gives the main judgment of the Court, with which Lord Mance, Lord Clarke and Lord Toulson agree. Lord Sumption gives a short concurring judgment, with which Lord Mance and Lord Clarke agree.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0007.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0007.txt
new file mode 100644
index 0000000000000000000000000000000000000000..340a9ff0514a66824e6fd4fd9a280e4f7029c848
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0007.txt
@@ -0,0 +1 @@
+The Supreme Court dismisses the appeal. Lord Hughes gives the judgment of the court.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0025.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0025.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e69de29bb2d1d6434b8b29ae775ad8c2e48c5391
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0072.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0072.txt
new file mode 100644
index 0000000000000000000000000000000000000000..7046a8e1f059d771a867f4ad8af41bafde05c261
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0072.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allows the appeal and restores the extradition order of District Judge Rose. Lord Sumption gives the judgment of the Court. Just before this judgment was due to be delivered, the Court was informed that Mr. Zakrzewski had returned voluntarily to Poland after the argument on the appeal and been arrested there. Accordingly, the warrant has been withdrawn by the court which issued it. This does not affect the issue which the Court has to decide. But it does mean that, formally, the appeal must now be dismissed: see section 43(4).
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0109.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0109.txt
new file mode 100644
index 0000000000000000000000000000000000000000..f661a2068e4b50a2f70a49c65eb126d7f4456621
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0109.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously dismisses the appeal. The judgment of the Court is given by Lord Toulson, with a concurring judgment by Lady Hale. Mr Stott was treated in a humiliating and disgraceful manner by Thomas Cook. However, his claim falls within the substantive and temporal scope of the Convention, and as a result damages cannot be awarded for injury to feelings. Substantively, the Convention deals comprehensively with the carriers liability for physical incidents involving passengers between embarkation and disembarkation. The fact that Mr Stotts claim involves an EU law right makes no difference. Temporally, Mr Stotts claim is for damages and distress suffered in the course of embarkation and flight, and these fall squarely within the temporal scope of the Convention. It is not enough that the operative causes began prior to boarding.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0124.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0124.txt
new file mode 100644
index 0000000000000000000000000000000000000000..398b25621a26e284a545341ed5beee21fc45cc20
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0124.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously dismisses Mr Guls appeal for reasons contained in a judgment given by Lord Neuberger and Lord Judge, with whom the other members of the Court agree. Mr Gul argued that both domestic law and international law required the statutory definition of terrorism to be interpreted narrowly, so as to exclude its application to situations such as those depicted in some of the videos which he had uploaded, namely those involving actions by non-state armed troops attacking foreign armed forces in their territory.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0143.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0143.txt
new file mode 100644
index 0000000000000000000000000000000000000000..580c08df5eed139ba9643744742158da370053cf
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0143.txt
@@ -0,0 +1 @@
+The Supreme Court dismisses the appeal. The judgment of the Court is given by Lord Toulson. On the first issue, the Court holds that s. 151A does not directly apply to this case [34-35]. In any event, the sections relied upon by Mr OBrien cannot be read in isolation, and reading the Act as a whole it is clear that conduct constituting an extradition offence must be a criminal offence under the law of the requesting state (here the UK) [36]. On the second issue, the Court holds that there is a material distinction between civil and criminal contempt. The latter involves a serious interference with the administration of justice [41]. The former is an inherent power used by a senior court in order to ensure that its orders are observed. Its primary purpose is to ensure that the courts orders are observed, and the contemnor does not acquire a criminal record [39-40]. In this case Mr OBriens disobedience to the Common Serjeants order constitutes civil contempt, which does not constitute an extradition offence [45].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0162.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0162.txt
new file mode 100644
index 0000000000000000000000000000000000000000..d705579454411cd3387a99f8ccebde0bb10ced0c
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0162.txt
@@ -0,0 +1 @@
+In a judgment delivered by Lord Hodge, the Supreme Court unanimously allows the appeal.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0179.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0179.txt
new file mode 100644
index 0000000000000000000000000000000000000000..f2fdae71b1441ad0a786c85709e32cfbb2e73f7e
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0179.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously orders that the government must submit new air quality plans to the European Commission no later than 31 December 2015. Lord Carnwath gives a judgment with which all members of the Court agree.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0181.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0181.txt
new file mode 100644
index 0000000000000000000000000000000000000000..1eb12a6921f013c4c1ce30a42df8c7bb393e7c22
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0181.txt
@@ -0,0 +1 @@
+The Supreme Court dismisses the appeal. Lord Carnwath gives the lead judgment, with which Lady Hale, Lord Wilson, Lord Reed and Lord Hughes agree.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0247.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0247.txt
new file mode 100644
index 0000000000000000000000000000000000000000..f86f386ce61ff69d58ebb7af8dfa4253a6a6f160
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0247.txt
@@ -0,0 +1 @@
+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.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0249.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0249.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e2b34e05a6c97acae9ac662d7fed7aa499590a5d
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0249.txt
@@ -0,0 +1 @@
+The Court unanimously holds that, in relation to the Snatch Land Rover claims, Pte Hewett and Pte Ellis were within the UKs jurisdiction for the purposes of the Convention at the time of their deaths. By a majority (Lords Mance, Wilson and Carnwath dissenting), the Court holds that: (i) the Snatch Land Rover claims should not be struck out on the ground that the claims are not within the scope of article 2 of the Convention; and (ii) the Challenger claims and Ellis negligence claim should not be struck out on the ground of combat immunity or on the ground that it would not be fair, just or reasonable to extend the MoDs duty of care to those cases [101]. The effect of the Courts decision is that all three sets of claims may proceed to trial.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0250.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0250.txt
new file mode 100644
index 0000000000000000000000000000000000000000..862bcbbdeaf5ee972a190be7f2f19e7772dd4be4
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2012-0250.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allows the appeal. Lord Hughes gives the only reasoned judgment, with which the other members of the court agree. The better reading of section 5 of the 1971 Act is that it does not revive prior leave on a deportation orders revocation. The other statutory provisions relied upon by Mr George do not support his case.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0006.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0006.txt
new file mode 100644
index 0000000000000000000000000000000000000000..745a74c1fa0f418bce1dc1d493663e21902b6616
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0006.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allows the receivers appeal (only) against the Court of Appeals refusal to have the CPS to pay the receivers remuneration and expenses. Lord Toulson gives the leading judgment, with a short concurrence by Lord Hughes dealing with the practical application of the courts decision. It is a general principle of the law of receivership that a court-appointed receiver is entitled to remuneration from the assets of the administered company. That law is clear and foreseeable. However, where the administered company is not itself a defendant, nor at the time of the order was there any reasonable cause to regard its assets as the defendants, it would be a disproportionate interference with the companys A1P1 rights for the receivers remuneration to be drawn from the companys assets. However, to leave the receiver without a remedy would be to substitute one injustice for another and violate the receivers A1P1 rights. In this case the receiver and the CPS acted on a common assumption, fundamental to the agreement, that the receiver would be able to claim his remuneration and expenses from the Eastenders Group. That assumption failed: the receiver accordingly has a valid right to restitution from the CPS.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0023.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0023.txt
new file mode 100644
index 0000000000000000000000000000000000000000..2162aa985433832c75146dae553beac3362bddae
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0023.txt
@@ -0,0 +1 @@
+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.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0036.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0036.txt
new file mode 100644
index 0000000000000000000000000000000000000000..bb85fe019d7236fd8bf1030569555b75f6188db9
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0036.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allows the appeal. Lord Neuberger gives the only judgment, with which the rest of the court agrees. Med was acting as an intermediary rather than in its own name, and so falls within article 306.1(b). Consequently, the Supreme Court discharges the order of the Court of Appeal and restores the order of Morgan J.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0057.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0057.txt
new file mode 100644
index 0000000000000000000000000000000000000000..9e1b8559be7983ccbbf2ecd099cc39a6878eeafb
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0057.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously holds that the common law rule of proportionate recovery established in Barker [2006] UKHL 20 continues to apply in Guernsey; it accordingly allows Zurichs appeal in respect of compensation; but it dismisses the appeal in relation to defence costs [35 and 100]. The judges order is therefore restored. The other issues do not in these circumstances arise, but, because of their general importance, the Supreme Court states its opinion on them. By a majority of 4-3 the Court concludes that, had the position in Guernsey been as in the UK under the 2006 Act, Zurich would have been liable in the first instance to meet IEGs claim in respect of the compensation paid by IEG in full, but would have been entitled, in respect of the 21 years not covered by the Midland insurance, to claim pro rata contribution from the Excess and IEG [96]. Lord Mance (with whom Lords Clarke, Carnwath and Hodge agree) gives the leading majority judgment, and Lord Sumption (with whom Lords Neuberger and Reed agree) the leading minority judgment. Lord Hodge gives a separate judgment, as does Lord Neuberger and Lord Reed.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0083.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0083.txt
new file mode 100644
index 0000000000000000000000000000000000000000..2991d5ba498be4896e4e084a2566dc3b7672c639
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0083.txt
@@ -0,0 +1 @@
+The court unanimously allows the appeal by Foxworth and NSL. Lord Reed delivers the main judgment, with which the other Justices agree.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0158.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0158.txt
new file mode 100644
index 0000000000000000000000000000000000000000..d7c06267513844e8c47b5105b84a585d41a2d270
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0158.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously dismisses the appeal. Lord Sumption gives the only judgment.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0161.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0161.txt
new file mode 100644
index 0000000000000000000000000000000000000000..a38b09fc29a171842a0836c15ff762ef64c80ba1
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0161.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously dismisses both Ms Mirgas and Mr Samins appeals for reasons set out in a judgment given by Lord Neuberger (with which Lady Hale, Lord Kerr, Lord Clarke and Lord Reed agree).
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0243.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0243.txt
new file mode 100644
index 0000000000000000000000000000000000000000..8de7d1230df83416c945a576f28a6138de0cb009
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0243.txt
@@ -0,0 +1 @@
+The Supreme Court dismisses the appeal by a majority of 4-1 (Lord Kerr dissenting). Lord Hughes delivers the lead judgment. Lord Neuberger and Lord Dyson give a joint concurring opinion.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0266.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0266.txt
new file mode 100644
index 0000000000000000000000000000000000000000..b6ad6721dab27028e1280cf9bc906f8b997afa1c
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0266.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously dismisses the appeal in respect of the finding that the Rule itself does not infringe article 8, but it invites further submissions from the parties on whether a declaration should be made that the operation of the Guidance in its present form is incompatible with article 8 rights where compliance with the requirement is impracticable. Three justices give substantive judgments: Lady Hale (with whom Lord Wilson agrees), Lord Hodge (with whom Lord Hughes agrees) and Lord Neuberger.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0273.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0273.txt
new file mode 100644
index 0000000000000000000000000000000000000000..b956dc22b798146bde2c7770d64ef168043aec68
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2013-0273.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allows the appeal and restores HHJ Blunsdons order for damages. Lord Wilson (with whom Lord Neuberger, Lord Sumption, Lord Carnwath and Lord Toulson agree) gives the judgment.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0023.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0023.txt
new file mode 100644
index 0000000000000000000000000000000000000000..6b691fa8fb40b4b44c0db612c385af27b2db104a
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0023.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allows the appeal in relation to costs but dismisses it in relation to declaratory relief. Lord Toulson delivers the judgment of the Court.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0073.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0073.txt
new file mode 100644
index 0000000000000000000000000000000000000000..1b7c0ef6a2e9e9c02452139acfdc8eff57ade00c
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0073.txt
@@ -0,0 +1 @@
+The Supreme Court dismisses the USAs appeal by a majority of 4:1. The case is remitted to the Court of Appeal for determination, as necessary, of the UK Coal/ Fujitsu issues. Lord Mance gives the lead judgment, with which Lord Neuberger, Lady Hale and Lord Reed agree. Lord Carnwath dissents.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0079.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0079.txt
new file mode 100644
index 0000000000000000000000000000000000000000..c1c9457424197ac286b2d97133f83a22e30aba43
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0079.txt
@@ -0,0 +1 @@
+The Supreme Court dismisses the appeal by a majority of 3-2. Lord Reed gives the lead judgment, with which Lord Hughes agrees. Lord Carnwath concurs with the result but for different reasons. Lady Hale and Lord Kerr each give dissenting judgments.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0087.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0087.txt
new file mode 100644
index 0000000000000000000000000000000000000000..f3d21434ac07337d1fa80fcb6f3552eada54ca34
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0087.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allows the Claimants appeal and holds the Respondent vicariously liable for the actions of its employee, Mr Khan, in attacking the Claimant. Lord Toulson gives the lead judgment.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0089.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0089.txt
new file mode 100644
index 0000000000000000000000000000000000000000..f8f7400f9aad83ce20b5f452a3f6fc4abb78afca
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0089.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously dismisses the Ministry of Justices appeal. Lord Reed gives the lead judgment, with which the other Justices agree.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0094.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0094.txt
new file mode 100644
index 0000000000000000000000000000000000000000..5ca844a333b6e3ce6ac86c7c8d36588e34687dab
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0094.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously dismisses the appeal by the Complaints Commissioner, holding that the Commissioner had (i) no power to recommend the payment of a money sum against an individual who was not a public authority in an investigation under article 8 of the Commissioner for Complaints (Northern Ireland) Order 1996 and (ii) no power to make a special report drawing the attention of the legislature to such a persons failure to comply with a recommendation. Lord Sumption gives the judgment, with which the other Justices agree.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0110.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0110.txt
new file mode 100644
index 0000000000000000000000000000000000000000..a74e537041189e2e75805e0bf544836ef5ec9ef8
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0110.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously dismisses SDGs appeal. Lord Hodge (with whom Lord Neuberger, Lord Reed, Lord Carnwath and Lord Hughes agree) gives the judgment of the court.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0138.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0138.txt
new file mode 100644
index 0000000000000000000000000000000000000000..acf167b81f6fe336be0087d3c56a9f92337ec52a
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0138.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously dismisses Mrs Roberts appeal, holding that the safeguards attending the use of the s 60 power, in particular the requirements to give reasons both for the authorisation and for the stop and search, make it possible to judge whether the power has been exercised lawfully. Both the power and the particular search of Mrs Roberts were in accordance with the law. Lady Hale and Lord Reed give the only substantive judgment with which the other justices agree.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0159.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0159.txt
new file mode 100644
index 0000000000000000000000000000000000000000..2516c3b3e61ebbd51a42b9f609445462c0919183
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0159.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously dismisses Hastings Borough Councils appeal. Lord Carnwath gives the judgment, with which the other Justices agree.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0231.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0231.txt
new file mode 100644
index 0000000000000000000000000000000000000000..ef615d0813374aac30d34c9b3bc369c342fef0ab
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2014-0231.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allows DBs appeal and declares that the Police Service of Northern Ireland misconstrued their legal powers to stop parades passing through or adjacent to the Short Strand area. Lord Kerr gives the judgment, with which the other Justices agree.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2015-0057.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2015-0057.txt
new file mode 100644
index 0000000000000000000000000000000000000000..7d650e8252624c20874554b82a44f7a9dcd1c110
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2015-0057.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allows the Commissioners appeal and dismisses the ITCs cross- appeal. Lord Reed gives the judgment, with which the rest of the Court agrees.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2015-0063.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2015-0063.txt
new file mode 100644
index 0000000000000000000000000000000000000000..c7d52ce8794f5156f9511aa25146afeb44ff0364
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2015-0063.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously dismisses the appeal. Lord Sumption gives the judgment, with which Lord Neuberger, Lady Hale, Lord Clarke and Lord Wilson agree.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2015-0082.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2015-0082.txt
new file mode 100644
index 0000000000000000000000000000000000000000..cc0d8de3f0ad083c2e15a3c3b702e6dbbd2d59f3
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2015-0082.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allows Ingenious Medias appeal. Lord Toulson, with whom the other Justices agree, gives the lead judgment.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2015-0177.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2015-0177.txt
new file mode 100644
index 0000000000000000000000000000000000000000..31d608d8507e2808b2d726981ef0bfa99a2a1f01
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2015-0177.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously dismisses Littlewoods cross-appeal on the first issue, and allows HMRCs appeal on the second issue. Lord Reed and Lord Hodge give a joint judgment, with which the rest of the Court agrees.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2015-0214.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2015-0214.txt
new file mode 100644
index 0000000000000000000000000000000000000000..4114c82c3314957fe3bbeb714ffcfc7114adc9ba
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2015-0214.txt
@@ -0,0 +1 @@
+The Supreme Court allows the appeal on the Appellants application under the 1989 Act by a majority of 3:2 (Lord Clarke and Lord Sumption dissenting) on the basis that B remained habitually resident in England on 13 February 2014. Lord Wilson gives the lead judgment.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2015-0216.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2015-0216.txt
new file mode 100644
index 0000000000000000000000000000000000000000..31bd82c6485285815c14b2c17b8b1f09f6ebfabb
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2015-0216.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allows the appeal on the basis of the ECHR Challenge and the EU Law Challenge (to the extent it mirrors the ECHR Challenge). The Court invites written submissions as to the terms of its order under s.102 of the Scotland Act in order to give the Scottish Parliament and Scottish Ministers an opportunity to address the matters raised in the judgment. In the meantime, since the defective provisions of Part 4 of the 2014 Act are not within the legislative competence of the Scottish Parliament, they cannot be brought into force. Lady Hale, Lord Reed and Lord Hodge (with whom Lord Wilson and Lord Hughes agree) give the joint leading judgment.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2015-0238.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2015-0238.txt
new file mode 100644
index 0000000000000000000000000000000000000000..8de03239a7c1184e392fe07f825913fc58afc69b
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2015-0238.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously dismisses Ns parents appeal. Although the Court of Protection had jurisdiction to continue with the planned hearing, it did not have power to order the respondent to fund the parents plan, nor to order the actual care providers to do that which they were unwilling or unable to do. The judge had therefore been entitled to conclude that no useful purpose was served by continuing the hearing. Lady Hale, with whom all the Justices agree, gives the only judgment.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2015-0255.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2015-0255.txt
new file mode 100644
index 0000000000000000000000000000000000000000..ae21ba5250603255043377283bbe4e19d2961d57
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2015-0255.txt
@@ -0,0 +1 @@
+Following a hearing at which the Court heard argument on the ultra vires issue and indicated that it did not need to hear argument on the discrimination issue, the Supreme Court unanimously allows the Public Law Projects appeal on the ultra vires issue. Lord Neuberger gives the only judgment, with which the other Justices agree.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2016-0004.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2016-0004.txt
new file mode 100644
index 0000000000000000000000000000000000000000..4524de7805e8363c1e115e6e8767c94e71e0b764
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2016-0004.txt
@@ -0,0 +1 @@
+The Supreme Court allows the appeal by a majority of 4-1, finding the local authority vicariously liable for the abuse committed by the foster parents, but rejecting the argument that the local authority were liable on the basis of a non-delegable duty. Lord Reed gives the lead judgment, with which Lady Hale, Lord Kerr and Lord Clarke agree. Lord Hughes gives a dissenting judgment.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2016-0048.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2016-0048.txt
new file mode 100644
index 0000000000000000000000000000000000000000..4265be1625acbc2b045d9086ef219e3a8fe8ebf1
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2016-0048.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously rules that it does not have jurisdiction to hear the fathers appeal, which must therefore be struck out. Lady Hale gives the only substantive judgment.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2016-0052.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2016-0052.txt
new file mode 100644
index 0000000000000000000000000000000000000000..ae0084c2b3e199c8a61753b88db0432cfe00dff3
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2016-0052.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allows the appeal. Lord Reed and Lord Hughes give a joint judgment with which the other Justices agree.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2016-0080.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2016-0080.txt
new file mode 100644
index 0000000000000000000000000000000000000000..4365e0a8c99c863aaf38110ef39bd80e70f35d47
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2016-0080.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously grants permission to appeal; and allows PJSs appeal by a majority of 4 to 1. Lord Mance gives the leading judgment, with which Lord Neuberger and Lady Hale (each of whom give supporting judgments) and Lord Reed agree. Lord Toulson gives a dissenting judgment.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2016-0082.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2016-0082.txt
new file mode 100644
index 0000000000000000000000000000000000000000..6ee1047daf3d90e00bb968a1546ee2501d844ae4
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2016-0082.txt
@@ -0,0 +1 @@
+The Appeal is allowed. Lord Reed gives the lead judgment with which Lady Hale and Lord Hodge agree. Lord Mance and Lord Hughes also allow the appeal but reach the conclusion that a duty of care existed by different reasoning.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2016-0210.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2016-0210.txt
new file mode 100644
index 0000000000000000000000000000000000000000..c893c309741186e12805d8f71e0ec92896bfcc13
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2016-0210.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously dismisses the appeal. Lord Hodge gives the sole judgment with which the other Justices agree.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2016-0213.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2016-0213.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e9a856cb28b4315f5e35e113e3a69103884cf016
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2016-0213.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously dismisses the appeal. Lord Hughes gives the judgment, with which Lord Neuberger, Lady Hale, Lord Kerr and Lord Thomas agree.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0006.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0006.txt
new file mode 100644
index 0000000000000000000000000000000000000000..d7f8d1ae81ebcd1df3ba2fd64c21d5ffa3fe44d6
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0006.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously dismisses the appeals. Lord Hughes gives the lead judgment, with which the rest of the Court agrees.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0031.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0031.txt
new file mode 100644
index 0000000000000000000000000000000000000000..9130ed53358c10dd488f05789da4a4f61b20e5d6
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0031.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allows the appeal and remits the case for a full re-hearing by the First-tier Tribunal. Lady Hale gives the only substantive judgment.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0040.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0040.txt
new file mode 100644
index 0000000000000000000000000000000000000000..a80cd74341ebbe3fb3f93efc209f9a8f42978b6e
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0040.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allows the appeal, concluding that the judge was entitled to decline to vary the order for periodical payments so as to require the husband to pay all of the wifes rental costs. Lord Wilson gives the judgment with which Lady Hale, Lord Carnwath, Lord Hughes and Lord Hodge agree.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0073.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0073.txt
new file mode 100644
index 0000000000000000000000000000000000000000..54a8d6498460aa34afd73aa41d7d0ed585339ec3
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0073.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously dismisses the appeal, subject to varying the conditions to delete the requirement of occupation for a maximum of ten months in each year. Lord Lloyd-Jones gives the sole judgment with which the other Justices agree.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0075.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0075.txt
new file mode 100644
index 0000000000000000000000000000000000000000..ef46889b29e02b6cd1ac6304aa29b4c09454cbd9
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0075.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allows the appeal. Lord Wilson gives the only judgment.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0083.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0083.txt
new file mode 100644
index 0000000000000000000000000000000000000000..935d9155ad38acf57a91ddeee000b14c2721d204
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0083.txt
@@ -0,0 +1 @@
+A majority of the Supreme Court dismisses the appeal and allows the cross-appeal. The judges consequential orders, including his order for monetary compensation for the payment under protest for use of the facilities in and after 2012, are restored. Lord Briggs, with whom Lady Hale, Lord Kerr and Lord Sumption agree, gives the main judgment. Lord Carnwath gives a dissenting judgment.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0096.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0096.txt
new file mode 100644
index 0000000000000000000000000000000000000000..2d233f58d81a84316eb564edc44173f3a163ad73
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0096.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allows the appeal. Lord Hodge gives the only judgment.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0106.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0106.txt
new file mode 100644
index 0000000000000000000000000000000000000000..a29edf5262d78a67da42ae388d6462785049cf47
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0106.txt
@@ -0,0 +1 @@
+The Supreme Court gives an interim judgment. It is final as to the issues covered (issues (i)-(iii)), but interim in the sense that other issues will have to be decided (issues (iv)-(v)) before the appeal can be finally determined. Certain critical and difficult issues had not been clearly identified in the agreed statement of facts and issues, nor adequately covered by the written or oral submissions. In fairness to the parties and in order to reach a fully informed conclusion, the court sees no alternative but to invite further submissions on the matters identified in the interim judgment.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0110.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0110.txt
new file mode 100644
index 0000000000000000000000000000000000000000..ed6cfc8f3662b02535512322430512f62be3bf8e
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0110.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously dismisses the appeal. Lord Sales gives the lead judgment, with which all members of the Court agree.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0115.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0115.txt
new file mode 100644
index 0000000000000000000000000000000000000000..d0f2c21dcdda442150d4356c70d25036149bbda3
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0115.txt
@@ -0,0 +1 @@
+The Supreme Court allows the appeal. The Court of Appeals order is set aside and that of District Judge Wright is reinstated. Lord Sumption gives the lead judgment, with which all the Justices agree.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0160.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0160.txt
new file mode 100644
index 0000000000000000000000000000000000000000..401a5839ff1491aeaae766b6e120877861752cfb
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0160.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allows the appeal. Lord Briggs gives the sole judgment of the Court.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0214.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0214.txt
new file mode 100644
index 0000000000000000000000000000000000000000..c893c309741186e12805d8f71e0ec92896bfcc13
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2017-0214.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously dismisses the appeal. Lord Hodge gives the sole judgment with which the other Justices agree.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2018-0030.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2018-0030.txt
new file mode 100644
index 0000000000000000000000000000000000000000..bc20c003c8d2e85812faa00708d794db524082c5
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2018-0030.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously refuses to accept the Attorney Generals application to refer this issue to the court under paragraph 34 of Schedule 10 to the 1998 Act. Lord Kerr, with whom Lady Hale and Lord Reed agree, gives the judgment.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2018-0099.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2018-0099.txt
new file mode 100644
index 0000000000000000000000000000000000000000..3789b18e1f8002c201047daf1d44ae06bf3a9a0f
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2018-0099.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allows the appeal. The certificate should be amended to exclude uses within the scope of the Proposed wording in the decision notice. Lord Carnwath gives the lead judgment.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2018-0131.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2018-0131.txt
new file mode 100644
index 0000000000000000000000000000000000000000..1e6ddc7e80666a016bbd1c986dc545b9fbfa25b3
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2018-0131.txt
@@ -0,0 +1 @@
+The Supreme Court allows Kymabs appeal by a majority of four to one, holding that the patents are invalid. Lord Briggs gives the majority judgment. Lady Black gives a dissenting judgment.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2018-0132.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2018-0132.txt
new file mode 100644
index 0000000000000000000000000000000000000000..adb5bf18ae3283afc2e49e380cc23f6d1ab692f6
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2018-0132.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously dismisses the appeal and remits the matter for assessment of the value of the loss of the opportunity to pursue the services claim. Lord Lloyd-Jones gives the judgment, with which all members of the Court agree.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2018-0140.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2018-0140.txt
new file mode 100644
index 0000000000000000000000000000000000000000..9cc7715094eda0f3007ac3fe3ece3df969574dac
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2018-0140.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allows the appeal. It holds that the appellant was unlawfully detained and is entitled to pursue a claim for damages for false imprisonment. Lord Kerr, with whom Lord Wilson, Lady Black and Lord Kitchin agree, gives the lead judgment. Lord Carnwath gives a concurring judgment. T:
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2018-0154.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2018-0154.txt
new file mode 100644
index 0000000000000000000000000000000000000000..4c0c4b8b4ff6e6e53e70a2571433c9cf718bb23f
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2018-0154.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously upholds the conclusion of the Court of Appeal that the MIFs infringed article 101(1) and its legal rulings on article 101(3), dismissing the appeal on all grounds except the broad axe issue (defined below). The Court allows the cross-appeal. The full Court gives the judgment.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2018-0164.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2018-0164.txt
new file mode 100644
index 0000000000000000000000000000000000000000..57552eadb5c44f08cac717157e8e87f69a6424dd
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2018-0164.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allows Barclays appeal, and holds that it is not vicariously liable for Dr Bates alleged wrongdoing. Lady Hale gives the judgment, with which all members of the Court agree.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2018-0225.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2018-0225.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e8ec5cabb78eefeec603bce8ee01da3592c9e351
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2018-0225.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously dismisses the appeals. Lord Carnwath gives the sole judgment, with which the other Justices agree.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2019-0001.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2019-0001.txt
new file mode 100644
index 0000000000000000000000000000000000000000..16bed0d1e9a5215429c9a58ff4b8c19cdd6c02b5
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2019-0001.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allows the appeal. Lord Carnwath gives the sole judgment, with which the other Justices agree.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2019-0028.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2019-0028.txt
new file mode 100644
index 0000000000000000000000000000000000000000..b68603666ba2c7659721f4941453cf5ba6a45aee
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2019-0028.txt
@@ -0,0 +1 @@
+By a majority, the Supreme Court substantially agrees with the conclusion of the Court of Appeal, but because of further evidence from the prosecutions expert produced after the judgment of the Court of Appeal, it allows the appeal to the limited extent of remitting the matter to the judge for further consideration in the light of that further evidence and the judgment of this court. Lord Lloyd-Jones gives the majority judgment, with which Lady Hale, Lord Wilson and Lord Hodge agree. Lord Reed delivers a dissenting judgment.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2020-0042.txt b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2020-0042.txt
new file mode 100644
index 0000000000000000000000000000000000000000..36497e45ec432a1af3ebed897a7a1aca959852cd
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/judgement/uksc-2020-0042.txt
@@ -0,0 +1 @@
+The Supreme Court unanimously allows the appeal. Lord Hodge and Lord Sales give the main judgment (with which Lord Reed, Lady Black and Lord Leggatt agree).
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0022.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0022.txt
new file mode 100644
index 0000000000000000000000000000000000000000..eefe96bf5950f3924c789f0ee7fbf5db4ded2410
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0022.txt
@@ -0,0 +1 @@
+The Secretary of State was under a public law duty to adhere to the terms of the policy relating to reviews unless there were good reasons not to: [36], [39], [66]. The majority of the Court holds that the Respondents unlawful failure to review the Appellants detention, as required by the policy, resulted in his detention being unlawful. The court rejects the argument that because the breach of public law related to a procedural requirement, it did not affect the legality of the detention: [69] [73], [85]. Some procedural requirements go to the legality of the detention and some do not: [71]. The policy was sufficiently closely related to the authority to detain to qualify the Secretary of States discretion under the 1971 Act: [51]. The very point of the review was to ensure that the detention was lawful: [73], [86]. The public law error bore directly on the decision to detain the Appellant and therefore satisfied the test adopted by the majority in Lumba for determining when a public law error will result in detention being unlawful: [42], [88]. The Appellants detention was not unlawful, however, where the only defect in the decision to continue detention was that the review had been carried out by an official of the wrong grade: [60]. As the Court also held in Lumba, it was no defence to the claim that there were grounds which justified the Appellants detention: [54], [73], [88]. False imprisonment is a trespass to the person and actionable in itself, without proof of loss or damage: [74]. The result of the reviews which should have taken place is, however, relevant to assessing damages. A defendant is liable only for the loss which his wrongful act has caused. The full facts of this case are yet to be established, but if it is found that the claimant would not have been released had proper reviews been carried out, he will only be entitled to nominal damages: [55] [56], [74], [89]. Lord Brown (with whom Lord Rodger agrees) would have held that the failure to review the Appellants detention did not result in the Appellants detention being unlawful. They hold that the policy did not confer upon the Appellant an entitlement to be released, but only an entitlement to be reviewed for release: [107]. Once properly detained, a detainee remains lawfully imprisoned unless and until released on bail or by the Secretary of States direction, or he establishes a substantive entitlement to release: [111]. Lumba does not compel the majoritys result, because it was concerned with a substantive entitlement under the policy and not a procedural one, and because it also held that not every breach of public law resulted in detention being unlawful: [116] [118].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0073.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0073.txt
new file mode 100644
index 0000000000000000000000000000000000000000..41845204923d0224833b93f24d02afaf403f4303
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0073.txt
@@ -0,0 +1 @@
+The questions before the court were (i) whether the regime enacted by Parliament in relation to the admission of the evidence of an absent witness at a criminal trial will result in an unfair trial and, if not (ii) whether the case law of the European Court on Human Rights nonetheless requires the court to apply that regime in a manner contrary to the intention of Parliament. The requirement to take into account any judgment of the European Court of Human Rights found in s 2 Human Rights Act 1998 would normally result in the Supreme Court applying principles that were clearly established by the Strasbourg court. There would however be rare occasions where the court had concerns as to whether a decision of the Strasbourg court sufficiently appreciated or accommodated particular aspects of the UK trial process. In such circumstances it was open to the Supreme Court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This was likely to give the Strasbourg Court the opportunity to reconsider the particular aspect of the decision that was in issue, so that there took place what might prove to be a valuable dialogue between the courts [para 11]. The conclusions of the Court of Appeal were correct and the judgement of the Supreme Court should be read as complementary to that of the Court of Appeal and not as a substitute for it [para 13]. The Supreme Court held that the appellants trials were fair notwithstanding the decision in Al- Khawaja for the following reasons: (i) The common law hearsay rule addressed the aspect of a fair trial covered by article 6(3)(d). Parliament had enacted exceptions to the hearsay rule in a regime which contained safeguards that rendered the sole or decisive rule unnecessary. (ii) The Strasbourg Court had recognised that exceptions to article 6(3)(d) were required in the interests of justice but the jurisprudence on the exceptions lacked clarity and had introduced a sole or decisive rule without discussion of the principle underlying it or full consideration of whether it was justified to impose it equally on common law and continental jurisdictions (iii) The sole or decisive rule would create severe practical difficulties if applied to English criminal procedure. In almost all cases English law would reach the same result without it. Al-Khawaja did not establish that it was necessary to apply the rule in this jurisdiction. Judgments
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0105.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0105.txt
new file mode 100644
index 0000000000000000000000000000000000000000..a4310e7e2f9c94e7531d1564a72cf26c2af063c8
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0105.txt
@@ -0,0 +1 @@
+The Majority Judgments The judgments of the Court should not be read as criticising the admissions policy of JFS on moral grounds or suggesting that any party to the case could be considered racist in the commonly understood, pejorative, sense. The simple legal question to be determined by the Court was whether in being denied admission to JFS, M was disadvantaged on grounds of his ethnic origins (or his lack thereof) (paras [9], [54], [124] and [156]). Direct Discrimination General Principles In determining whether there is direct discrimination on grounds of ethnic origins for the purposes of the 1976 Act, the court must determine, as a question of fact, whether the victims ethnic origins are the factual criterion that determined the decision made by the discriminator (paras [13], [16], [20] and [62]). If so, the motive for the discrimination and/or the reason why the discriminator considered the victims ethnic origins significant is irrelevant (paras [20], [22], [62] and [142]). Where the factual criteria upon which discriminatory treatment is based are unclear, unconscious or subject to dispute the court will consider the mental processes of the discriminator in order to infer - as a question of fact from the available evidence - whether there is discrimination on a prohibited ground (paras [21], [64], [115] and [133]). It is only necessary to consider the mental processes of the discriminator where the factual criteria underpinning the discrimination are unclear (para [114]). To treat an individual less favourably on the ground that he lacks certain prescribed ethnic origins constitutes direct discrimination. There is no logical distinction between such a case and less favourable treatment predicated upon the fact that an individual does possess certain ethnic origins (paras [9] and [68]). Direct discrimination does not require that the discriminator intends to behave in a discriminatory manner or that he realises that he is doing so (para [57]). There is no need for any consideration of mental processes in this case as the factual criterion that determined the refusal to admit M to JFS is clear: the fact that he is not descended in the matrilineal line from a woman recognised by the OCR as Jewish. The subjective state of mind of JFS, the OCR and/or the Chief Rabbi is therefore irrelevant (paras [23], [26], [65], [78], [127], [132], [136], [141] and [147]-[148]). The crucial question to be determined is whether this requirement is properly characterised as referring to Ms ethnic origins (paras [27], [55] and [65]). Application in This Case The test applied by JFS focuses upon the ethnicity of the women from whom M is descended. Whether such women were themselves born as Jews or converted in a manner recognised by the OCR, the only basis upon which M would be deemed to satisfy the test for admission to JFS would be that he was descended in the matrilineal line from a woman recognised by the OCR as Jewish (para [41] per Lord Phillips). It must also be noted that while it is possible for women to convert to Judaism in a manner recognised by the OCR and thus confer Orthodox Jewish status upon their offspring, the requirement of undergoing such conversion itself constitutes a significant and onerous burden that is not applicable to those born with the requisite ethnic origins this further illustrates the essentially ethnic nature of the OCRs test (para [42] per Lord Phillips). The test of matrilineal descent adopted by JFS and the OCR is one of ethnic origins. To discriminate against a person on this basis is contrary to the 1976 Act (para [46] per Lord Phillips). The reason that M was denied admission to JFS was because of his mothers ethnic origins, which were not halachically Jewish. She was not descended in the matrilineal line from the original Jewish people. There can be no doubt that the Jewish people are an ethnic group within the meaning of the 1976 Act. While JFS and the OCR would have overlooked this fact if Ms mother had herself undergone an approved course of Orthodox conversion, this could not alter the fundamental nature of the test being applied. If Ms mother herself was of the requisite ethnic origins in her matrilineal line no conversion requirement would be imposed. It could not be said that M was adversely treated because of his religious beliefs. JFS and the OCR were indifferent to these and focussed solely upon whether M satisfied the test of matrilineal descent (paras [66] and [67] per Lady Hale). Direct discrimination on grounds of ethnic origins under the 1976 Act does not only encompass adverse treatment based upon membership of an ethnic group defined in the terms elucidated by the House of Lords in Mandla v Dowell-Lee [1983] 2 AC 548. The 1976 Act also prohibits discrimination by reference to ethnic origins in a narrower sense, where reference is made to a persons lineage or descent (paras [80]-[84] per Lord Mance). The test applied by JFS and the OCR focuses on genealogical descent from a particular people, enlarged from time to time by the assimilation of converts. Such a test is one that is based upon ethnic origins (para [86] per Lord Mance). This conclusion is buttressed by the underlying policy of the 1976 Act, which is that people must be treated as individuals and not be assumed to be like other members of a group: treating an individual less favourably because of his ancestry ignores his unique characteristics and attributes and fails to respect his autonomy and individuality. The UN Convention on the Rights of the Child requires that in cases involving children the best interests of the child are the primary consideration (para [90] per Lord Mance). The reason for the refusal to admit M to JFS was his lack of the requisite ethnic origins: the absence of a matrilineal connection to Orthodox Judaism (para [112] per Lord Kerr). Ms ethnic origins encompass, amongst other things, his paternal Jewish lineage and his descent from an Italian Roman Catholic mother. In denying M admission on the basis that he lacks a matrilineal Orthodox Jewish antecedent, JFS discriminated against him on grounds of his ethnic origins (paras [121]-[122] per Lord Kerr). It might be said that the policy adopted by JFS and the OCR was based on both ethnic grounds and grounds of religion, in that the reason for the application of a test based upon ethnic origins was the conviction that such a criterion was dictated by Jewish religious law. The fact that the rule adopted was of a religious character cannot obscure or alter the fact that the content of the rule itself applies a test of ethnicity (paras [129]-[131] per Lord Clarke). The fact that a decision to discriminate on racial grounds is based upon a devout, venerable and sincerely held religious belief or conviction cannot inoculate or excuse such conduct from liability under the 1976 Act (paras [35], [92], [113] and [119]-[120]). Further Comments It is not clear that the practice-based test adopted by JFS following the Court of Appeals judgment will result in JFS being required to admit children who are not regarded by Jewish by one or more of the established Jewish movements (para [50] per Lord Phillips). It may be arguable that an explicit exemption should be provided from the provisions of the 1976 Act in order to allow Jewish faith schools to grant priority in admissions on the basis of matrilineal descent; if so, formulating such an exemption is unquestionably a matter for Parliament (paras [69]-[70] per Lady Hale). Indirect Discrimination As the case is one of impermissible direct discrimination it is unnecessary to address the claim of indirect discrimination (para [51] per Lord Phillips). Direct and indirect discrimination are mutually exclusive; both concepts cannot apply to a single case concurrently. As this case is one of direct discrimination it could not be one of indirect discrimination (para [57] per Lady Hale). Ex hypothesi, if the case was not direct discrimination, then the policy was indirectly discriminatory (para [103]). The policy pursued the legitimate aim of effectuating the obligation imposed by Jewish religious law to educate those regarded by the OCR as Jewish (paras [95]- [96]). However, JFS had not, and on the basis of the evidence before the court could not, demonstrate that the measures it adopted, given the gravity of their adverse effect upon individuals such as M, were a proportionate means of pursuing this aim (paras [100]-[103], [123] and [154]). The Minority Judgments Direct Discrimination In identifying the ground on which JFS refused to admit M to the school the Court should adopt a subjective approach which takes account of the motive and intention of JFS, the OCR and the Chief Rabbi (para [195]-[197] per Lord Hope). In the instant case JFS, the OCR and the Chief Rabbi were subjectively concerned solely with Ms religious status, as determined by Jewish religious law. There is no cause to doubt the Chief Rabbis frankness or good faith on this matter (para [201] per Lord Hope). The availability of conversion demonstrates that the test applied is inherently of a religious rather than racial character (para [203] per Lord Hope). It is inapt to describe the religious dimension of the test being applied by JFS as a mere motive (paras [201] per Lord Hope; [227] per Lord Rodger). The appropriate comparator for M in this case is a child whose mother had converted under Orthodox Jewish auspices. The ground of difference in treatment between M and such a child would be that the latters mother had completed an approved course of Orthodox conversion (paras [229]-[230] per Lord Rodger). Indirect Discrimination Lords Hope and Walker Clearly, children who were not of Jewish ethnic origin in the matrilineal line were placed at a disadvantage by JFSs admission policy relative to those who did possess the requisite ethnic origins (para [205]). JFSs policy pursued the legitimate aim of educating those regarded as Jewish by the OCR within an educational environment espousing and practising the tenets of Orthodox Judaism (para [209]). The 1976 Act placed the onus on JFS to demonstrate that in formulating its policy it had carefully considered the adverse effect of its policy on M and other children in his position and balanced this against what was required to give effect to the legitimate aim which it sought to further (para [210]). There is no evidence that JFS considered whether less discriminatory means might be adopted which would not undermine its religious ethos: the failure to consider alternate, potentially less discriminatory, admission policies means that JFS is not entitled to a finding that the means which it has employed are proportionate (paras [212] and [214]). Lords Rodger and Brown The objective pursued by JFSs admission policy educating those children recognised by the OCR as Jewish was irreconcilable with any approach that would give precedence to children not recognised as Jewish by the OCR in preference to children who were so recognised. JFSs policy was therefore a rational way of giving effect to the legitimate aim pursued and could not be said to be disproportionate. (para [233] per Lord Rodger; para [256] per Lord Brown). The United Synagogue Costs Appeal The United Synagogue must pay 20 per cent. of Es costs from the Court of Appeal but not those incurred in the High Court. The 20 per cent. of Es costs in the High Court previously allocated to the United Synagogue must be borne by JFS in addition to the 50 per cent. that it has already been ordered to pay (para [217]).
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0118.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0118.txt
new file mode 100644
index 0000000000000000000000000000000000000000..1f2ed68e285dc041020be1883268cfbc9b8fe199
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0118.txt
@@ -0,0 +1 @@
+Lord Clarke, with whom all other members of the Court agree, considered the first two questions together as both involve the construction of the 1940 Act. Although section 3(2) is specifically intended to deal with the position where there are two actions it is not limited to such a case and the claim for contribution could be made by third party proceedings in the same action (paras [11]-[12]). The words if sued are to be construed as meaning relevantly, competently and timeously sued (para [14]). The question under section 3(2) is whether, if Asco had been sued by Farstad, it would have been liable. That depends upon whether Asco would have had a defence to Farstads claim. The outcome of the appeal therefore depends upon the true construction of the charterparty, with the essential question being whether clause 33.5 of the charterparty excludes Ascos liability to Farstad in respect of damage to the vessel caused by Ascos own negligence (paras [15]-[16]). The Court found that it does (paras [24], [29]). Enviroco is not entitled to contribution from Asco under section 3(2) of the 1940 Act because it cannot establish that if sued Asco might have been liable to Farstad in respect of losses caused by the fire (paras [15], [16], [19]-[29]). This conclusion makes the remaining question - whether the position would be different if clause 33.5 were only an indemnity rather than an exclusion clause - irrelevant. The Court did not accept the argument that, if clause 33.5 was only an indemnity clause Farstad would have been entitled to a joint and several decree against both Asco and Enviroco and both would be found joint and severally liable in damages within the meaning of section 3(1) of the 1940 Act. The charterparty is governed by English law and such a claim by Farstad would be met by the defence of circuity of action. In other words, it would be useless in such circumstances to give judgment for Farstad against Asco as there could be no order of the court that Asco pay damages to Farstad. Although not called circuity of action, Scots law applies what is in effect the same principle. Therefore, even if it were a matter of Scots law, the answer would be the same and any action by Farstad against Asco would clearly fail (paras [30]-[34], [44], [59]). In his judgment, Lord Rodger confirmed that the Courts construction of section 3(2) is in line with the established case law of the courts of New Zealand and Canada on similar provisions. The policy which underlies the decisions of those courts is equally applicable to Scots law. The appeal is allowed and the decision of the Lord Ordinary is restored.
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0125.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0125.txt
new file mode 100644
index 0000000000000000000000000000000000000000..ce1611ef78c8ef6e8358a7967cdf4f7af7ee547d
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0125.txt
@@ -0,0 +1 @@
+Majority Judgments The answer to the question raised by this case is to be found by applying the rules laid down in s 29 and Part 1 of Schedule 4 the Scotland Act 1998 which determine whether a provision of an Act is outside the Scottish Parliaments legislative competence. Three questions arise in this case: (1) whether the purpose of s.45 was to modify Scots criminal law as defined in s.126(5) of the Scotland Act; (2) if so, whether its purpose was to make the law apply consistently to reserved matters and otherwise; and (3) if (1) and (2) are answered in the affirmative, whether the rule that s.45 modified was special to a reserved matter within the meaning of para 2(3) of Schedule 4 [para [22]]. The purpose of s.45 of the Criminal Proceedings etc (Reform)(Scotland) 2007 Act The available material conclusively demonstrates that the purpose of s.45 was to contribute to the reform of summary justice by reducing pressure on the higher courts. The jurisdiction of a Sheriff is defined by the penalties which he can impose and his powers in this respect are quintessentially matter of Scots criminal law. S.45 was directed to a rule of Scots criminal law, so it does not relate to a reserved matter within the meaning of s.29(2)(b) of the Scotland Act 1998 [para [31]]. Was s.46 concerned to ensure that law applied consistently between reserved and non-reserved matters? S.45 is one of a group of related provisions contained in the 2007 Act increasing the summary sentencing powers of Sheriffs in respect of a number of common law and statutory offences. If the 2007 Act had increased the sentencing power in respect of common law but not statutory offences the reform would have been incomplete and confusing. This problem would have been exacerbated if the reform had attempted to distinguish between statutory offences related to reserved matters and those which did not. The purpose of s.45 was to ensure that the law relating to the sentencing powers of Sheriffs was consistent as between offences concerning reserved matters and otherwise. Consequently, s.45 is not related to a reserved matter for the purpose of s.29(4) of the Scotland Act 1998 [paras [32]- [33]]. Is the sentencing jurisdiction of a Sheriff in relation to road traffic offences special to the Road Traffic Offenders Act 1988 and the Road Traffic Act 1988? In identifying the rule of law that is being modified for the purpose of the test established by para 2(3) of Schedule 4, regard may be had to the purpose of the legislative provision effecting the modification [para [34]]. The key to the decision in this case lies in identifying the rule that is being modified. This is achieved by examining the purpose of the legislative provision which is under scrutiny [para [38] and [39]]. S.33 and Part 1 of Schedule 2 to the RTOA and s.103(1)(b) of the RTA contain, in effect, two rules of Scots criminal law. Firstly, that the overall maximum sentence in respect of driving while disqualified is 12 months. Secondly, the route by which the maximum sentence can be imposed. The former provision is plainly a rule that is special to the RTOA and RTA and is a reserved matter that the Scottish Parliament has no power to modify. However, the latter is a rule concerning Scots criminal jurisdiction and procedure which is not reserved. The change in the law effected by s.45 does not alter the maximum period of imprisonment for the offence of driving while disqualified. It relates to the procedure which determines whether the sheriff has power to impose that sentence. The rule of Scots law being modified is the rule of Scots criminal procedure. This rule of procedure is not special to the RTOA or RTA [para [37]]. Had it been necessary to address the point, para 3 of Schedule 4 (which provides that legislation having incidental or minor effects upon reserved matters shall be within competence) could not, contrary to the conclusion reached by the HCJ, render s.45 within the Scottish Parliaments legislative competence. s.45 constituted an important modification to a rule of Scots criminal procedure that could not be regarded as incidental or consequential [para [40]]. Accordingly the court holds that s.45 is within the legislative competence of the Scottish Parliament. The appeals are dismissed and remitted to the HCJ for any further orders that may be required [para [43]]. Dissenting Judgments Lord Rodger agreed that s.45 did not relate to a reserved matter [para [119]]. But he would have held that the provision of the RTOA prescribing the maximum term of imprisonment for a summary conviction for driving while disqualified is special to a reserved matter, in the sense that the United Kingdom Parliament has chosen it specifically for that offence. Lord Rodger did not agree that the purpose of the modifying provision can be a relevant consideration in identifying the rule of Scots law that is being modified for the purpose of para 2(3) of Schedule 4 [para [143]]. He also did not agree that the purpose of a provision which purports to modify a rule of Scots law can be used to determine whether that rule is special to a reserved matter [para [145]]. Lord Kerr agreed with Lord Rodger.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0127.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0127.txt
new file mode 100644
index 0000000000000000000000000000000000000000..ce1611ef78c8ef6e8358a7967cdf4f7af7ee547d
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0127.txt
@@ -0,0 +1 @@
+Majority Judgments The answer to the question raised by this case is to be found by applying the rules laid down in s 29 and Part 1 of Schedule 4 the Scotland Act 1998 which determine whether a provision of an Act is outside the Scottish Parliaments legislative competence. Three questions arise in this case: (1) whether the purpose of s.45 was to modify Scots criminal law as defined in s.126(5) of the Scotland Act; (2) if so, whether its purpose was to make the law apply consistently to reserved matters and otherwise; and (3) if (1) and (2) are answered in the affirmative, whether the rule that s.45 modified was special to a reserved matter within the meaning of para 2(3) of Schedule 4 [para [22]]. The purpose of s.45 of the Criminal Proceedings etc (Reform)(Scotland) 2007 Act The available material conclusively demonstrates that the purpose of s.45 was to contribute to the reform of summary justice by reducing pressure on the higher courts. The jurisdiction of a Sheriff is defined by the penalties which he can impose and his powers in this respect are quintessentially matter of Scots criminal law. S.45 was directed to a rule of Scots criminal law, so it does not relate to a reserved matter within the meaning of s.29(2)(b) of the Scotland Act 1998 [para [31]]. Was s.46 concerned to ensure that law applied consistently between reserved and non-reserved matters? S.45 is one of a group of related provisions contained in the 2007 Act increasing the summary sentencing powers of Sheriffs in respect of a number of common law and statutory offences. If the 2007 Act had increased the sentencing power in respect of common law but not statutory offences the reform would have been incomplete and confusing. This problem would have been exacerbated if the reform had attempted to distinguish between statutory offences related to reserved matters and those which did not. The purpose of s.45 was to ensure that the law relating to the sentencing powers of Sheriffs was consistent as between offences concerning reserved matters and otherwise. Consequently, s.45 is not related to a reserved matter for the purpose of s.29(4) of the Scotland Act 1998 [paras [32]- [33]]. Is the sentencing jurisdiction of a Sheriff in relation to road traffic offences special to the Road Traffic Offenders Act 1988 and the Road Traffic Act 1988? In identifying the rule of law that is being modified for the purpose of the test established by para 2(3) of Schedule 4, regard may be had to the purpose of the legislative provision effecting the modification [para [34]]. The key to the decision in this case lies in identifying the rule that is being modified. This is achieved by examining the purpose of the legislative provision which is under scrutiny [para [38] and [39]]. S.33 and Part 1 of Schedule 2 to the RTOA and s.103(1)(b) of the RTA contain, in effect, two rules of Scots criminal law. Firstly, that the overall maximum sentence in respect of driving while disqualified is 12 months. Secondly, the route by which the maximum sentence can be imposed. The former provision is plainly a rule that is special to the RTOA and RTA and is a reserved matter that the Scottish Parliament has no power to modify. However, the latter is a rule concerning Scots criminal jurisdiction and procedure which is not reserved. The change in the law effected by s.45 does not alter the maximum period of imprisonment for the offence of driving while disqualified. It relates to the procedure which determines whether the sheriff has power to impose that sentence. The rule of Scots law being modified is the rule of Scots criminal procedure. This rule of procedure is not special to the RTOA or RTA [para [37]]. Had it been necessary to address the point, para 3 of Schedule 4 (which provides that legislation having incidental or minor effects upon reserved matters shall be within competence) could not, contrary to the conclusion reached by the HCJ, render s.45 within the Scottish Parliaments legislative competence. s.45 constituted an important modification to a rule of Scots criminal procedure that could not be regarded as incidental or consequential [para [40]]. Accordingly the court holds that s.45 is within the legislative competence of the Scottish Parliament. The appeals are dismissed and remitted to the HCJ for any further orders that may be required [para [43]]. Dissenting Judgments Lord Rodger agreed that s.45 did not relate to a reserved matter [para [119]]. But he would have held that the provision of the RTOA prescribing the maximum term of imprisonment for a summary conviction for driving while disqualified is special to a reserved matter, in the sense that the United Kingdom Parliament has chosen it specifically for that offence. Lord Rodger did not agree that the purpose of the modifying provision can be a relevant consideration in identifying the rule of Scots law that is being modified for the purpose of para 2(3) of Schedule 4 [para [143]]. He also did not agree that the purpose of a provision which purports to modify a rule of Scots law can be used to determine whether that rule is special to a reserved matter [para [145]]. Lord Kerr agreed with Lord Rodger.
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0129.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0129.txt
new file mode 100644
index 0000000000000000000000000000000000000000..33b9aa24207ecb58fff6469ef922c9396e025a76
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0129.txt
@@ -0,0 +1 @@
+The Court disagrees with the appeal courts view in relation to outstanding charges. It is, of course, trite that an individual charged with crime is presumed to be innocent until proven guilty. But that is not to say that he has to be treated in all respects as if he were an innocent person against whom no charge has been brought (para 9). The Privy Councils decision in Holland v HM Advocate 2005 1 SC (PC) 3, that the Crown should disclose outstanding charges of Crown witnesses of which they are aware, simply reflects the common sense position that just as in everyday life judges or jurors who have to assess the credibility of a witness may properly take into account not only the fact that the witness has been convicted of various offences, but also the fact that he has been charged with others. This approach merely reflects what appears to have been recognised as the proper practice in Scottish courts for more than 170 years (para 10). In the present case, the Crown does not deny that the outstanding charges against Mr Stronach might have weakened the Crown case by casting doubt on his character or credibility. Indeed the Crown accepts that, in accordance with Holland and HM Advocate v Murtagh 2009 SLT 1060, the failure to disclose the outstanding charges to the defence was incompatible with the appellants article 6(1) rights (para 14). The only live issue in the appeal, therefore, is the actual significance, in the whole circumstances of the case, of the Crowns failure to disclose the outstanding charges. Having considered the circumstances of the case against the appellant, the Court is not persuaded that, if defence counsel had been able to deploy Mr Stronachs outstanding charges as well as his previous convictions, this would have made any material difference (para 22). The Court is satisfied that there is no real possibility that the jury would have come to a different verdict on the charges against the appellant if they had been made aware, not only of Mr Stonachs previous convictions, but of the outstanding charges against him as well. There has therefore been no miscarriage of justice (para 23).
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0152.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0152.txt
new file mode 100644
index 0000000000000000000000000000000000000000..4e7aef919e41eb942658d0a8026caf0b669d5777
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0152.txt
@@ -0,0 +1 @@
+There is nothing to suggest that, when providing the additional guidance which is the subject of the dispute in the present case, the ECJ was intending to depart from the principled approach which it had formulated earlier in its judgment, namely, that Article 11 precluded national legislation being applied in a way which permitted a producer to be sued after the expiry of the ten- year limitation period as defendant in proceedings brought within that period against another person (para 17). In venturing to give the additional guidance, the ECJ was following the lead of the Advocate General. The Advocate General had given some thought to how Article 11 should be applied in a case like the present, where APSA transferred the Product to a distributor, APMSD, which was its wholly-owned subsidiary. In doing so, the Advocate General had referred back to the ECJs judgment on the first reference where the ECJ had held that a product is put into circulation when it is taken out of the manufacturing process operated by the producer and enters a marketing process in the form in which it is offered to the public in order to be used or consumed (paras 18-20). The ECJ, in its judgment following the first reference, had rejected an approach that was based on the formal legal relationship between the parent manufacturing producer and the subsidiary distributor. The national court had to look at all the links between the two entities and decide on that basis whether they were so close that, for the purposes of Article 11, the concept of the manufacturing producer (which would apply to APSA) really included the distributor (in this case, APMSD). In that event, even if the Product were transferred from one to the other, this would not mean that it had been taken out of the manufacturing process operated by the producer (para 22). The Advocate General made use of that part of the ECJs analysis from the first reference to show when a distribution subsidiary could be so closely involved with the parent producer that they could, in effect, be regarded as one for the purposes of Article 11 (so that suing the subsidiary would be tantamount to suing the parent). In concrete terms, if that were the position in this case, by suing APMSD within the ten-year period, the Respondent would also have sued APSA within that period. So the Article 11 time-bar would not bite and the Respondent could, if he wished, substitute APSA for APMSD as defendant in the present action (para 23). It is with this background in mind that the ECJ gave its additional guidance in the second reference. There is nothing to suggest that, in giving that guidance, it was intending to depart in any way from the analysis in its first reference (para 27). Certainly, to judge from the Advocate Generals analysis, the only way in which the principle that had just been laid down in relation to the substitution of APSA for APMSD could be maintained and yet APSA could be substituted for APMSD would be if, by suing APMSD, the Respondent had in effect sued APSA (para 28). The ECJ was therefore indicating, in giving its guidance, that the domestic court was to consider, in accordance with domestic rules of proof, whether the manufacturer, APSA, was in fact controlling APMSD and determining when it put the Product into circulation. The fact that APSA was a wholly-owned subsidiary was simply one by no means decisive factor to be taken into account by the domestic court when assessing how closely the subsidiary was involved with its parents business as a producer. All the circumstances would have to be taken into account. If APSA was indeed in a position to decide when the Product was distributed, then APMSD would be integrated into the manufacturing process and would be so tightly controlled by APSA that proceedings against APMSD could properly be regarded as proceedings against the parent company, APSA. Hence, the manufacturing company could be substituted for the subsidiary (para 34).
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0167.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0167.txt
new file mode 100644
index 0000000000000000000000000000000000000000..90b13647bf6a19d1fa38a304a69857f0e294b3e5
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0167.txt
@@ -0,0 +1 @@
+In order to be as of right, use must not be by force, nor stealth, nor by permission of the landowner [20, 67, 87 107, 115]. The law in this area was also concerned with how the matter would have appeared to the reasonable landowner [36]. There was great difficulty in seeing how a reasonable landowner would have concluded that the residents were not asserting a right to take recreation on the disputed land simply because they showed civility towards members of the golf club [36]. The inspector misdirected himself as to the significance of perfectly natural behaviour by the residents [38, 96]. The appeal would be allowed and the council should register the land [49, 78, 97 108, 116]. The Respondent had argued that the rights of the residents after registration of a village green afforded them unqualified use of the land whatever the landowner wished to do with it. There would be a mismatch between what the residents would have done to gain the rights and what they would be in a position to do after the green had been registered. However, Lords Walker and Rodger considered that there was little danger in normal circumstances of registration leading to a sudden diversification or intensification of use by residents [47, 84]; the parties could co-exist. Lords Hope and Kerr considered that there was a broad equivalence between the use relied on to establish the right and what the land might be used for after registration, although there may be some asymmetry as to the manner of its use pre- and post-registration [72, 115]. Lord Brown considered that the locals could increase their use of the land but only in so far as it would not be incompatible with the owner continuing with his previous use [101]. Lord Hope suggested that the forthcoming review of village greens by the Government should look at the consequences of registration as revealed by the developing case law as well as how the registration system itself is working [56].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0180.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0180.txt
new file mode 100644
index 0000000000000000000000000000000000000000..6832882524a4c8e274903f9dd9946814ce70f71e
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2009-0180.txt
@@ -0,0 +1 @@
+The Court identified four issues of increasing specificity facing the court in this appeal [21]: (1) whether the European Convention on Human Rights (the Convention) requires domestic courts to consider the proportionality of evicting a person from his home before making an order for possession; (2) if so, the general implications of this conclusion in practice for claims for possession; (3) the implications of this conclusion on the compatibility of the statutory demoted tenancy regime with the Convention; and (4) the application of conclusions (1)-(3) above to the facts of Mr Pinnocks appeal. In light of the clear and constant line of jurisprudence of the European Court of Human Rights, the Court departed from the previous line of the House of Lords authorities and concluded that a court, which is asked by a local authority to make an order for possession of a persons home, must have the power to assess the proportionality of making the order and, in making that assessment, to resolve any factual disputes between the parties [49], [74]. The Court emphasised that this conclusion relates to possession claims by local authorities and is not intended to bear on cases where the person seeking possession is a private landlord, which issue will have to be determined when it arises [50]. The Court noted that the appeal involved a comparatively rare type of possession claim, a claim against a demoted tenant. Nevertheless, the Court was able to make certain general points [61]-[64]: (1) article 8 only comes into play where a persons home is involved; (2) as a general rule, the proportionality of seeking possession will only need to be considered if the point is raised by the occupier concerned; (3) any article 8 defence should initially be considered summarily; (4) even where an outright order for possession is valid under domestic law, article 8 may justify granting an extended period for possession, suspending any possession order or refusing an order altogether; (5) the conclusion that the court must have the ability to consider the article 8 proportionality of making a possession order may require certain statutory and procedural provisions to be revisited; and (6) article 8 proportionality is more likely to be relevant in respect of occupiers who are vulnerable, due to either a mental or a physical disability. The Court went on to conclude that it was possible to read and give effect to section 143D(2) in a way that would permit the court to review the proportionality of a landlords decision to seek possession and, if necessary, to make its own assessment of facts in dispute. In particular, he concluded that, by virtue of section 7(1) of the Human Rights Act, County Court judges have the necessary jurisdiction to carry out the article 8 proportionality review [77]-[80]. It therefore followed that the demoted tenancy regime is compatible with the Convention [104]. Given the above conclusions, the Court went on to consider whether it was proportionate to evict Mr Pinnock and his family from the property in light of their article 8 Convention rights. Having regard to the undisputed evidence of three serious offences committed by Mr Pinnocks sons in, or in the vicinity of, the property during the year when the demotion order was in force, the Court concluded that the possession order against Mr Pinnock was indeed proportionate and should be upheld [127]-[132].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0039.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0039.txt
new file mode 100644
index 0000000000000000000000000000000000000000..1f9bed1e893518d054fe31f72a80d01e9191d0b4
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0039.txt
@@ -0,0 +1 @@
+Lord Clarke observed that the without prejudice rule was now very much wider than it had been historically and extended to admissions made with a genuine intention to reach a settlement, including any admissions made to reach a settlement with a different party within the same litigation, and applied whether or not settlement was reached with that party: [19]-[29]. The without prejudice rule was an important rule that founded upon the public policy of encouraging litigants to settle their differences, as well as the express or implied agreement of the parties themselves that communications in the course of their negotiations should not be admissible in evidence: [24]. Because of the importance of the without prejudice rule, its boundaries should not be lightly eroded. Nevertheless, the authorities clearly established that resort might be had to without prejudice material by way of exception to the rule where the justice of the case required it: [30]-[33]. The central issue in the present case was whether one of the exceptions to the rule should be that facts which (a) are communicated between the parties in the course of without prejudice negotiations, (b) form part of the factual matrix or surrounding circumstances and (c) would, but for the without prejudice rule, be admissible as an aid to construction of a settlement agreement which results from the negotiations should be admissible in evidence by way of exception to the rule (the interpretation exception): [35]. Lord Clarke reached the conclusion that justice clearly demanded that the interpretation exception should be recognised as an exception to the without prejudice rule for two principal reasons: [36] and [46]. Without recourse to the without prejudice material the agreement could not be properly construed in accordance with the well recognised principles identified in Investors Compensations Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 and Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] AC 1101 that objective facts which emerge during negotiations are admissible as part of the factual matrix in order to assist courts to interpret an agreement in accordance with the parties true intentions. The process of interpretation of a settlement agreement should in principle be the same, whether negotiations are without prejudice or not, and permitting recourse to the without prejudice material for this purpose was the only way in which the modern principles of contractual interpretation could be properly respected: [36]-[41]. Any other approach would introduce an unprincipled distinction between this class of case and two other exceptions to the without prejudice rule. The first such exception, which has already been accepted, is that resort might be had to without prejudice material in order to resolve the issue whether negotiations had resulted in a concluded compromise agreement. The second such exception (which has not yet been accepted) followed from the first, namely that if a party could have resort to without prejudice material to see whether negotiations had resulted in a concluded settlement agreement, then a party could also rely on such material in order to show that a settlement agreement should be rectified. There was no sensible basis on a which a line could be drawn between admitting without prejudice communications in order to consider a plea of rectification and admitting them as part of the factual matrix relevant to the true construction of a settlement agreement: [42]-[45]. Lord Clarke stressed that nothing in the judgment was intended to underplay the importance of the without prejudice rule or to encourage the admission of evidence of pre-contractual negotiations beyond that which is admissible in order to explain the factual matrix or surrounding circumstances: [46].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0106.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0106.txt
new file mode 100644
index 0000000000000000000000000000000000000000..07b408eec6b227a80487ce47d53484c18ebc2b33
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0106.txt
@@ -0,0 +1 @@
+Mr Tariqs Cross-Appeal The issue in the cross-appeal was whether the provisions in the Regulations providing for a closed material procedure were contrary to EU law or the European Convention on Human Rights. It is a basic principle of EU law that national law should provide effective legal protection of EU law rights. Those rights include the right not to be discriminated against on grounds of race or religion. As to whether the closed material procedure provided effective legal protection, the case-law of the European Court of Justice is clear that EU law will look for guidance on the subject in the case-law of the European Court of Human Rights. That Court has established in a line of cases culminating in Kennedy v UK that the demands of national security may necessitate a system for determining complaints under which a claimant is, for reasons of national security, unable to know the secret material by reference to which his complaint is determined. The tests are whether the system is necessary and whether it contains sufficient safeguards. On the facts, both were satisfied. The system was necessary because security vetting is a highly sensitive area in which integrity of sources of information and the means of obtaining it must be protected. The alternatives of the Home Office routinely having to pay unmeritorious claims or the courts refusing to hear claims at all are not possibilities that the law should readily contemplate. The rule of law must, so far as possible, stand for the objective resolution of civil disputes on their merits by a court which has before it material enabling it to do so. The system contained sufficient safeguards in the form of special advocates, who can usefully protect the claimants interests. For these reasons the use of the closed material procedure in this case was lawful and the cross-appeal must be dismissed. The Home Offices Appeal The question in the appeal was whether there is an absolute requirement that a claimant should be able to see the allegations against him in sufficient detail to give instructions to his legal team to enable the allegations to be challenged effectively. Mr Tariq argued that the European Convention on Human Rights contained such a principle. The Supreme Court, however, held that the line of cases culminating in Kennedy v UK recognised that there was no absolute requirement. Article 6 of the European Convention on Human Rights provides the right to a fair trial. The European Court of Human Rights has held that where the liberty of the subject is involved, Article 6 requires the provision of a gist as described by the Court of Appeal. In cases such as the present not involving the liberty of the subject, however, the question is whether the use of the closed material procedure will impair the very essence of the right to a fair trial. That cannot be said to be so in this case, as Mr Tariqs claim will be determined by an independent and impartial tribunal and the disadvantages that the procedure gives rise to will as far as possible be minimised. The appeal was therefore allowed. Lord Kerr dissented. He held, first, that the withholding of information from a claimant which is then deployed to defeat his claim is a breach of his fundamental common law right to a fair trial. The removal of that right can only be achieved by legislation framed in unambiguous language. Secondly, such withholding also constitutes a breach of a claimants Article 6 right to a fair trial. Kennedy v UK was an anomaly. Lord Kerr would therefore have dismissed the appeal.
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0127.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0127.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e6337a696bdb5708f9694ad534a2d48e259c0dc2
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0127.txt
@@ -0,0 +1 @@
+The issue at the heart of this appeal is whether, on the true construction of paragraph 3 of the Bonds, the Buyers are entitled to payment from the Respondent in respect of refunds that they are entitled to from the Builder under Article XII.3 of the Contracts [6]. It was common ground that everything depends upon the true construction of the Bonds and that the terms and meaning of the Contracts are only relevant to the extent that they inform the true construction of the Bonds [7],[10]. Under paragraph 3 of the Bonds the Respondent promised to pay the Buyers all such sums due to you under the Contract. The question is therefore what was meant by such sums. On this point, neither Article X.5 nor Article X.8 was intended to set out all the circumstances in which the refund guarantee should operate [37]. The Buyers said that the expression covered the pre-delivery instalments referred to in the first line of paragraph 3 in other words, the phrase referred to all pre-delivery instalments paid by the Buyers. The Respondent, on the other hand, contended that the expression such sums was limited to the sums that were referred to in paragraph 2 of the Bonds. Since paragraph 2 did not include any reference to the Buyers rights under Article XII.3 of the Contracts to repayment upon the Builders insolvency, the Respondent was under no obligation to make any payment to the Buyers in the present case. On the face of it, the correct approach to the construction of the Bonds is not in dispute. The cases show that the ultimate aim of interpreting a provision in a contract, especially a commercial contract, is to determine what the parties meant by the language used. This process involves ascertaining what a reasonable person would have understood the parties to have meant. A reasonable person, for these purposes, is one who has all the background knowledge that would reasonably have been available to the parties in the situation in which they were at the time of the contract [14]. The issue between the parties is the role to be played by considerations of business common sense in determining what the parties meant [15]. Where the parties have used unambiguous language, the court must apply it [23]. However if there are two possible constructions, it is generally appropriate to adopt the interpretation that is most consistent with business common sense and to reject the other [21], [29]. It is not necessary to conclude that a particular construction would produce an absurd or irrational result before proceeding to have regard to the commercial purpose of the agreement [43]. In the present case, since the language of paragraph 3 is capable of two meanings, it is appropriate for the court to have regard to considerations of commercial commonsense [40]. Although the Buyers are unable to provide any very good reason why paragraph 2 was included in the Bonds [34], a construction of paragraph 3 which excluded the Builders insolvency from the situations that trigger the Respondents obligation to refund advance payments made by the Buyers would make no commercial sense [41]. Accordingly, of the two arguable constructions of paragraph 3 of the Bonds, the Buyers construction is to be preferred because it is consistent with the commercial purpose of the Bonds in a way that the Respondents construction is not [45].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0128.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0128.txt
new file mode 100644
index 0000000000000000000000000000000000000000..109b2de272a7732748dcbe590917761dcd798281
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0128.txt
@@ -0,0 +1 @@
+The Court notes that the case raises a fundamental issue about fairness. Neither in July nor in August 2006 did K have the opportunity to refute the allegations in the grounds of referral. This is contrary to one of the fundamental rules of natural justice, the right to be heard. [14] The order of 27 October 2006 was competently pronounced. The order was one which the sheriff had power to grant under section 11(1) of the 1995 Act. The defect in the order is one of specification, not of substance. While it would have been better if the sheriff had expressly referred to the relevant provisions of the 1995 Act and to the relevant parental responsibilities and rights, and to the fact that participation in the childrens hearing set the limits for the exercise of those responsibilities and rights, the order was not incompetent because he did not do so. [24] [28] There was not a sound basis for the First Divisions view that the sheriff failed to apply the overarching principles. Such evidence as there is suggests that the very experienced sheriff had these principles in mind throughout the hearing. In any event, failure to apply the correct principles when making an order, while it may be a ground of appeal, would not normally render the order incompetent. [31] A parent (or other person) whose family life with the child is at risk in the proceedings must be afforded a proper opportunity to take part in the decision-making process. As currently constituted the childrens hearing system violated the article 8 rights of K (and indeed of L) and risks violating the rights of others in the same situation. The childrens hearing has to have the best and most accurate information that it can in order to make the best decisions about the child. The only justification advanced for excluding a father unless and until he secures a parental responsibilities and parental rights order from the sheriff court is to ensure that only persons who can make a meaningful contribution to the hearing are present. However, it is difficult to see how excluding a father such as K can possibly be proportionate to that aim. All fathers registered since 4 May 2006 are entitled to be present. Further, when the alleged grounds for referring the child consist almost entirely of allegations against the father, it cannot possibly be legitimate to exclude him for the purpose of restricting the numbers. [39] - [48] The incompatibility with Article 8 can be cured by inserting the words or who appears to have established family life with the child with which the decision of a childrens hearing may interfere into section 93(2)(b)(c) of the 1995 Act. [69]
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0154.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0154.txt
new file mode 100644
index 0000000000000000000000000000000000000000..656b209b9d59bcba1fa01a76d0eb6ad35b225bd8
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0154.txt
@@ -0,0 +1 @@
+Section 94(1) of the Employment Rights Act 1996 sets out the right of the employee not to be unfairly dismissed and section 230(1) sets out the definition of employee. They do not contain any geographical limitation, nor is any such limitation to be found anywhere else in the Act [3]. Yet it is plain that some limitation must be implied: section 94(1) cannot apply to all employment anywhere in the world [4]. In Lawson v Serco Ltd [2006] UKHL 3, Lord Hoffmann identified three categories of employees who would fall within the jurisdiction of the employment tribunal: employees working in Great Britain; peripatetic employees where the employee is based in Great Britain; and, in some exceptional cases, expatriate employees [9-12]. But it would be difficult to fit Mr Ravats case into any of Lord Hoffmanns categories [13]. The problem that it raises must be resolved by applying the relevant guiding principles to the facts described in the employment tribunals judgment [25]. The question in each case is whether section 94(1) applied to the particular case, notwithstanding its foreign elements. It is not for the courts to lay down a series of fixed rules where Parliament has decided not to do so. Their role is rather to give effect to what Parliament may reasonably be taken to have intended by identifying and applying the relevant principles [26]. The starting point is that the employment relationship must have a stronger connection with Great Britain than with the foreign country where the employee works. The general rule is that the place of employment is decisive, but that is not an absolute rule [27]. In some cases, an exception can be made because the connection between Great Britain and the employment relationship is sufficiently strong to enable it to be presumed that, although they were working abroad, Parliament must have intended that section 94(1) should apply to them. It will always be a question of fact and degree as to whether the connection is sufficiently strong to overcome the general rule that the place of employment is decisive. The case of those who are truly expatriate because they not only work but also live outside Great Britain requires an especially strong connection with Great Britain and British employment law before an exception can be made for them [28]. But it does not follow that the connection that must be shown in the case of those who are not truly expatriate, because they are not both working and living overseas, must achieve the high standard that would enable one to say that their case was exceptional. In this case, the fact that the commuter has his home in Great Britain, with all the consequences that flow from this for the terms and conditions of his employment, makes the burden in his case of showing that there was a sufficient connection less onerous. The question of law is whether section 94(1) applies to this particular employment. The question of fact is whether the connection between the circumstances of the employment and Great Britain and with British employment law was sufficiently strong to enable it to be said that it would be appropriate for the employee to have a claim for unfair dismissal in Great Britain [29]. In this case, Mr Ravat was working in Libya, for a different Halliburton associated company which was based in Germany, and the decision to dismiss him was taken by an individual based in Cairo. But all the other factors point towards Great Britain as the place with which, in comparison with any other, Mr Ravats employment had the closer connection [30]. The Appellants business was based in Great Britain. It treated Mr Ravat as a commuter, which meant that all the benefits for which he would have been eligible had he been working in Great Britain were preserved for him [31]. Although it was not open to the parties to contract in to the jurisdiction of the employment tribunal, factors such as any assurance that the employer may have given to the employee regarding the applicability of UK employment law, and the way the employment relationship is then handled in practice must play a part in the overall assessment [32]. On being assigned to Libya, Mr Ravat was assured that UK employment law would apply to his contract. The documentation he received reflected this, and in fact matters relating to the termination of his employment were handled by the Appellants human resources department in Aberdeen [33-34]. As the question is ultimately one of degree, considerable respect must be given to the decision of the employment tribunal as the primary fact-finder. In the circumstances of this case, section 94(1) must be interpreted as applying to Mr Ravats employment, and the employment tribunal therefore has jurisdiction to hear his claim [35].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0189.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0189.txt
new file mode 100644
index 0000000000000000000000000000000000000000..bbb5715997e0fa9aaa33362b2615b833347014dc
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0189.txt
@@ -0,0 +1 @@
+In simple terms, the question is whether a public authority, when deciding whether to exercise a discretionary power to achieve a public objective, is entitled to take into account the cost to the public of so doing. As custodian of public funds, the authority not only may, but generally must, have regard to the cost to the public of its actions, at least to the extent of considering in any case whether the cost is proportionate to the aim to be achieved, and taking account of any more economic ways of achieving the same objective [24]-[25]. Section 97 of the Act requires no different approach. The section requires the authority to satisfy itself that revocation is expedient, and in so doing to have regard to the development plan and other material considerations. The development plan throws no light on the issue in this case. The word expedient implies no more than that the action should be appropriate in all the circumstances. Where one of those circumstances is a potential liability for compensation, it is hard to see why it should be excluded. Material in ordinary language is the same as relevant. Where the exercise of the power, in the manner envisaged by the statute, will have both planning and financial consequences, there is no obvious reason to treat either as irrelevant [26]. Under section 97, a planning authority has a discretion whether to act, and, if so, how. If it does decide to act, it must bear the financial consequences. Section 97 creates a specific statutory power to buy back a permission previously granted. Cost, or value for money, is naturally relevant to the purchasers consideration [51]. Sufficient consistency is given to the expression material considerations if it is treated as it is elsewhere in administrative law: that is, as meaning considerations material (or relevant) to the exercise of the particular power, in its statutory context and for the purposes for which it was granted. So read, there is no inconsistency between section 97 and other sections such as section 70 [49]-[50]. Furthermore, in exercising its choice not to act under section 97, or in choosing between that and other means of achieving its planning objective, the authority is to be guided by what is expedient. No principle of consistency requires that process to be confined to planning considerations, or to exclude cost [52]. The contrary view of Richards J in Alnwick DC v Secretary of State (2000) 79 P & CR 130 was wrong, although the actual decision may be supportable on its own facts [54]. Possible difficulty in assessing precisely the likely level of compensation is no reason for not conducting the exercise, still less for leaving cost considerations out of account altogether [55]-[56]. Accordingly, for reasons which essentially follow those of the majority of the Court of Appeal, the HSEs appeal is dismissed [57].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0201.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0201.txt
new file mode 100644
index 0000000000000000000000000000000000000000..593bb1df4e0d6e60700bf9255b23958b8a602aa8
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0201.txt
@@ -0,0 +1 @@
+As to the first issue, the Employment Tribunal did not have the benefit of the later decisions in the European Court of Justice/Court of Justice of the European Union and in the High Court. That jurisprudence shows that a distinction must be drawn between the tests for justification in direct and indirect discrimination and regulation 3 should be read accordingly [51]. The aims set out in article 6(1) of the Directive are directed primarily to the Member States and are of a public interest nature, which is distinguishable from purely individual reasons particular to the employers situation, such as cost reduction or improving competitiveness [50(2)]. The Age Regulations had given employers and partnerships the flexibility to choose which aims to pursue, provided that (i) they can count as legitimate objectives of a public interest nature within the meaning of the Directive, (ii) they are consistent with the social policy aims of the state, and (iii) the means used are both appropriate to the aim and reasonably necessary to achieve it [55]. It is necessary to identify the actual objective being pursued, although it may not have been articulated or even realised when the measure was first adopted [59, 60]]. Once an aim has been identified, it has to be asked whether it is legitimate in the particular circumstances of the employment or partnership concerned [61]. Finally, the means chosen must be both appropriate and necessary to achieve that aim [62]. Two broad categories of aim had been accepted as legitimate by the European Court: inter-generational fairness and preserving the dignity of older workers [56, 57]. The three aims accepted by the Employment Tribunal in this case were consistent with article 6(1) of the Directive. Staff retention and workforce planning were directly related to the social policy aim of sharing out professional employment opportunities fairly between the generations. Limiting the need to expel partners by way of performance management was directly related to the dignity aim [67] (despite some reservations expressed about this aim generally [57, 58]).. As to the second issue, the wording of regulation 3 suggests that the focus is on whether the treatment of Mr Seldon (B) in particular was justified [63]. However, where it is justified to have a general rule, then the existence of that rule will usually justify the treatment which results from it. [65]. Often, requiring the application of the rule to the individual to be specifically justified would negate the purpose of having a rule in the first place [66]. However, all businesses will now have to give careful consideration to what, if any, mandatory retirement rules can be justified in their particular business [66]. The case is remitted to the Employment Tribunal to consider whether the choice of a mandatory age of 65 was a proportionate means of achieving the legitimate aims of the partnership [68].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0231.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0231.txt
new file mode 100644
index 0000000000000000000000000000000000000000..c88d86a3ab8f9a262c561fa900a67e2f781277f4
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0231.txt
@@ -0,0 +1 @@
+Under the WTD, every worker must be entitled to a rest break, a daily rest, and a weekly rest period. Each period must be measured separately from each other. They cannot intrude upon each other or overlap [16]. Where necessary because of special working patterns, workers must be afforded equivalent periods of compensatory rest. In the Appellants case, it was agreed that the first two days of each period of their field break is accounted for as compensatory rest, to make up for the fact that they work a 12 hour shift every day during their two weeks offshore [17]. With regard to the annual leave entitlement, Article 7 of the WTD does not require that those four weeks must be taken consecutively or that those weeks cannot be interrupted [18]. But as a period of leave is not a period which is defined in Article 2 as working time, it must be taken to be what that article defines as a rest period. It is an annual period of rest [19]. The WTD does not imply any qualitative requirement to test whether a given period can be accounted as rest. The exercise that must be carried out is simply one of counting up the relevant hours, days or seven-day periods and ensuring that the worker is not required to work during those periods. There is no indication anywhere that the WTD was concerned about the quality of the minimum periods of rest, other than to make it clear in the definition of rest period that it means a period which is not working time[21]. The contract in question is a contract for the whole of the year, in which the employees were required to work for 26 weeks [34]. The purpose of the entitlement to annual leave is to enable the worker to rest and enjoy a period of relaxation and leisure. The ECJ has not said that a pre-ordained rest period, when the worker is free from all obligations to the employer, can never constitute annual leave. On the contrary, the term rest period simply means any period which is not working time, and any period means every such period irrespective of where the worker is at that time and what he is doing, so long as it is a period when he is not working. It is plain that any period when the Appellants are on field break onshore will fall into that category [36]. The Respondents are therefore entitled to insist that the Appellants must take their paid annual leave during periods other than their 26 working weeks when they are onshore on field break. This is permitted by Regulation 13 of the WTR, read in conformity with Article 7 of the WTD [38]. A reference to the CJEU is not necessary in this case. The meaning to be given to article 7, for the purposes of this judgment, is not open to any doubt [43].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0236.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0236.txt
new file mode 100644
index 0000000000000000000000000000000000000000..afdf0183abfe8d5ba98956164a656029e2284db3
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0236.txt
@@ -0,0 +1 @@
+National limitation periods are permissible under EU law but they should not operate so as to render practically impossible or excessively difficult the exercise of EU law rights [15]; whether or not they do so is a matter for the national courts to determine in light of the European principles of effectiveness and legal certainty [12]. EU law does not require that the interpretation or true effect of a statutory limitation period be clear beyond doubt [20-22]. The true test is more flexible and does not impose a requirement for absolute clarity. Instead what is required is that national law is sufficiently clear, precise and foreseeable as to enable individuals to ascertain their rights and obligations and exercise those rights without excessive difficulty [23-24]. Section 47A of the 1998 Act satisfies that test as it is sufficiently clear, precise and foreseeable as to enable individuals to ascertain when the limitation period commences. In this case, the statutory limitation period commenced following the expiry of the time within which the respondents could appeal against the Commissions infringement decision; it did not commence following the expiry of the time within which the respondents could appeal against the CFIs decision as to the level of the fine [29]. The Competition Act 1998 repeatedly distinguishes between infringement decisions on the one hand and penalty decisions on the other, making clear that only infringement decisions are of relevance in determining the date upon which a limitation period commences: see e.g. sections 31, 32, 36, 46 and 47A [30]. Given that BASF did not appeal against the Commissions infringement decision it was sufficiently clear that the two-year limitation period started on 31 January 2002 following the expiry of the time for appealing against the Commissions infringement decision. As the operation of the statutory time limit is sufficiently clear, precise and foreseeable the statute did not render it excessively difficult for the appellants to exercise their EU law rights. Consequently, EU law does not require that a power to extend time be treated as existing. Indeed, it is clear that the Secretary of State in making the CAT rules deliberately decided that there should be no power to extend time for the commencement of damages claims [42]. Had the Court found that the statutory limitation period failed to comply with the European principles of effectiveness and legal certainty then the United Kingdom would have been in breach of its obligations under EU law and State liability would have arisen. However, even in such circumstances the appellants could not have brought follow-on damages claims against the respondents as EU law does not require the setting aside as between civil parties of a limitation defence, successfully established under domestic law, on the grounds that its effect would have been insufficiently clear, precise and foreseeable prior to the court decision establishing it [44-47].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0244.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0244.txt
new file mode 100644
index 0000000000000000000000000000000000000000..ae0cfaefbe363b6d4400a2c42f12dac5452800f4
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2010-0244.txt
@@ -0,0 +1 @@
+Family proceedings depart from the general rule applicable in civil proceedings that the unsuccessful party will be ordered to pay the costs of the successful party (CPR 44.3(2)(a)). This is because there are special considerations that militate against the approach appropriate in other kinds of adversarial litigation, particularly where the interests of children are at stake. It is usual in proceedings involving a child for no order to be made in relation to costs [11]. Care proceedings usually involve allegations of misconduct towards a child by some persons, typically a parent. The object of the proceedings is to reach a decision which is in the best interests of the child. Often it is necessary to resolve issues of fact which are disputed. The decision whether or not to have a split hearing is one of case management, taken by the court, and cannot affect the principles to be applied by the court when dealing with costs. If it is correct in a particular case to award costs in relation to individual issues of fact this can more easily be done if the costs associated with those issues are incurred in a separate hearing, but this is only relevant to the practicality of such an order [28]. The question of whether it was just to make an award of costs against a public authority had to be distinguished from the question of whether a litigants costs should be publicly funded, which was a matter for Parliament [39]. The current arrangements might lead to injustice for interveners in the position of the grandparents in the present case, but it did not follow that justice demanded that any deficiency in the provision of public funding should be made up from the funds of the local authority responsible for care proceedings [40]. Equally, if in principle a local authority should be liable for the costs of interveners who succeed in showing that factual allegations against them are unfounded, this liability should arise whether or not the interveners are publicly funded [41]. It was legitimate to have regard to the competing demands on the limited funds of the local authority. It was not right to treat it as in the same position as a civil litigant who raises an issue that is ultimately determined against him. A local authority has a duty to investigate reports that a child has been subjected to significant harm and, where there are reasonable grounds for believing that they may be well founded, to instigate care proceedings. In this respect the role of the local authority has much in common with that of a prosecuting authority and it is for the court to determine where the truth lies [42]. There was no valid basis for restricting the approach of the Court of Appeal in this case to findings of fact in a split hearing and the effect on the resources of local authorities would be significant [43]. For these reasons the Supreme Court concluded that that the general practice of not awarding costs in care proceedings against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, is one that accords with the ends of justice and which should not be subject to an exception in the case of split hearings [44].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2011-0011.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2011-0011.txt
new file mode 100644
index 0000000000000000000000000000000000000000..07e8cea91e1dafc5b769ec2d047c5b72931eb230
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2011-0011.txt
@@ -0,0 +1 @@
+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]
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2011-0024.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2011-0024.txt
new file mode 100644
index 0000000000000000000000000000000000000000..b95bba493068b5d7e3f404222ea13bfbaa181e0d
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2011-0024.txt
@@ -0,0 +1 @@
+Article 8 ECHR was engaged [43; 72]. Applying R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, the relevant question was whether there had been an interference by a public authority with the exercise of a persons right to respect for his private or family life and if so, whether it had had consequences of sufficient gravity to engage the operation of the article [30]. Unconstrained by authority, Lord Wilson would have considered it a colossal interference to require for up to three years either that the spouses should live separately or that a British citizen should leave the UK for up to three years [32]. The ECtHR in Abdulaziz v United Kingdom (1985) 7 EHRR 471 has, however, held that there was no lack of respect for family life in denying entry to foreign spouses. There was no positive obligation on the State to respect a couples choice of country of matrimonial residence [35 - 36]. Lord Wilson holds that Abdulaziz should not be followed in this respect; there was dissent at the time and no clear and consistent subsequent jurisprudence from the ECtHR as four more recent decisions [38 41] were inconsistent with the decision [43]. The ECtHR has since recognized that the distinction between positive and negative obligations should not generate different outcomes [43]. The Secretary of State has failed to establish that the interference with the Respondents rights to a family life was justified under Article 8(2) ECHR. Paragraph 277 has a legitimate aim, namely the protection of the rights and freedoms of those who might be forced into marriage [45] and is rationally connected to that objective, but its efficacy is highly debatable [58]. A number of questions remain unanswered including how prevalent the motive of applying for UK citizenship is in the genesis of forced marriages; whether the forced marriage would have occurred in any event and thus the rule increase the control of victims abroad and whether the amendment might precipitate a swift pregnancy in order to found an application for a discretionary grant of a visa [49]. The Secretary of State has failed to adduce any robust evidence that the amendment would have any substantial deterrent effect [50; 75]. By contrast, the number of forced marriages amongst those refused a marriage visa had not been quantified [53]. The only conclusion that could be drawn was that the amendment would keep a very substantial number of bona fide young couples apart or forced to live outside the UK [54], vastly exceeding the number of forced marriages that would be deterred [58; 74]. The measure was similar to the blanket prohibition on persons subject to immigration control marrying without the Secretary of States written permission found to be unlawful in R (Baiai) v Secretary of State for the Home Department [2008] UKHL 53 [57, 78 - 79]. The Secretary of State has failed to exercise her judgement on this imbalance and thus failed to establish both that the measure is no more than is necessary to accomplish the objective of deterring forced marriage and that it strikes a fair balance between the rights of parties to unforced marriages and the interests of the community in preventing forced marriage. On any view, the measure was a sledgehammer but the Secretary of State has not attempted to identify the size of the nut [58]. Lady Hale holds that the debate on Abdulaziz is something of a red herring as the Secretary of State could not simultaneously state that the measure was not for the purpose of controlling immigration and rely upon jurisprudence wholly premised on the States right to control immigration [72]. She further holds that the restriction was automatic and indiscriminate [74]; failed to detect forced marriages and imposed a delay on cohabitation in the country of choice, which was a deterrent that could impair the essence of the right to marry under Article 12 ECHR [78 -79]. Whilst the judgment is essentially individual, it is hard to conceive that the Secretary of State could avoid infringement of Article 8 ECHR when applying Paragraph 277 to an unforced marriage [59; 80]. Lord Brown, dissenting, holds the extent of forced marriage is impossible to quantify so the deterrent effect of Paragraph 277 could never be satisfactorily determined [87]. The judgement of how to balance the enormity of suffering within forced marriages with the disruption to innocent couples was one for elected politicians, not for judges [91]. The measure was not an automatic indiscriminate restriction [92]; would be disapplied in exceptional circumstances [93] and similar rules applied in other European countries [85]. To disapply the rule would exceed ECtHR jurisprudence and in such a sensitive context, government policy should not be frustrated except in the clearest cases [97].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2011-0046.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2011-0046.txt
new file mode 100644
index 0000000000000000000000000000000000000000..8d2499ddf3251582685deae5577776e5fddf9e0d
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2011-0046.txt
@@ -0,0 +1 @@
+The requirement that claimants and their chosen comparators are in the same employment before a claim can be brought under the Act does not simply mean that they must be employed by the same employer. If they do not work at the same establishment as their comparators, claimants must show that they are both employed at establishments in Great Britain at which common terms and conditions of employment are observed either generally or for employees of the relevant classes (s 1 (6) of the Act). The common terms and conditions are between the comparators terms at different establishments and those on which they are or would be employed at the claimants establishment [12]. It is no answer to say that no such comparators ever would be employed at the same establishment as the claimant, otherwise it would be far too easy for an employer to arrange things so that only men worked in one place and only women in another [13]. The correct hypothesis to consider is the transfer of the comparators to do their present job in a different location [30]. The evidence from the respondents Group Manager of Human Resources confirmed that, although he could not envisage it happening, in the event that the comparators were based in schools then they would retain their Green Book conditions [31]. The Employment Tribunal adopted the correct test and was entitled to find it satisfied on this evidence. It was not necessary to show that it was feasible to co-locate the relevant workers. This was an unwarranted gloss on s 1(6) [33] and would defeat the object of the legislation. The fact that of necessity work has to be carried on in different places is no barrier to equalising the terms on which it is done [34]. It is not the function of the same employment test to establish comparability between the jobs done, but simply to weed out those cases in which geography plays a significant part in determining the relevant terms and conditions [35]. This construction of s 1(6) is more consistent with the requirements of European Union law, to which the Act gives effect [36]. Case law of the European Court of Justice has established that for the principle of equal pay to have direct effect, the difference in treatment must be attributable to a single source which is capable of putting it right [40]. That is clearly the case here. If s 1(6) were to operate as a barrier to a comparison which was required by EU law to give effect to the fundamental principle of equal treatment it would be the courts duty to disapply it. However, s 1(6) sets a low threshold which does not operate as a barrier to the comparison proposed in this case [42].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2011-0089.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2011-0089.txt
new file mode 100644
index 0000000000000000000000000000000000000000..d48e4df0b1f0597bb53212c0ade698d2b1437444
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2011-0089.txt
@@ -0,0 +1 @@
+The rule in Hastings-Bass The rule in Hastings-Bass, properly understood, depends on breach of duty in the performance of something that is within the scope of the trustees powers, not in the trustees doing something that they had no power to do at all [43]. The rule is centred on the failure of trustees to perform their decision-making function. It is that which founds the courts jurisdiction to intervene if it thinks fit to do so [91]. As a matter of principle there must be a high degree of flexibility in the range of the courts possible responses. To lay down a rigid rule would inhibit the court in seeking the best practical solution in the application of the rule in Hastings-Bass in a variety of different factual situations [92]. For the rule in Hastings-Bass to apply, the inadequate deliberation on the part of the trustees must be sufficiently serious as to amount to a breach of fiduciary duty. It is generally only a breach of duty on the part of the trustees that entitles the court to intervene. It is not enough to show that the trustees deliberations have fallen short of the highest possible standards, or that the court would, on a surrender of discretion by the trustees, have acted in a different way. Apart from exceptional circumstances (such as an impasse reached by honest and reasonable trustees) only breach of fiduciary duty justifies judicial intervention [73]. However, where trustees have been in breach of duty by exercising a discretion with inadequate deliberation, setting aside their decision may not be the only course open to the court [63]. It would be contrary to principle and authority to impose a form of strict liability on trustees who conscientiously obtain and follow, in making a decision which is within the scope of their powers, apparently competent professional advice which turns out to be wrong [80]. Such a result cannot be achieved by the route of attributing any fault on the part of professional advisers to the trustees as their supposed principals [81]. There have been, and no doubt will be in the future, cases in which small variations in the facts lead to surprisingly different outcomes. That is inevitable in an area where the law has to balance the need to protect beneficiaries against aberrant conduct by trustees (the policy behind the rule in Hastings-Bass) with the competing interests of legal certainty, and of not imposing too stringent a test in judging trustees decision-making [83]. Rescission on the ground of mistake The true requirement for rescission on the ground of mistake is simply for there to be a causative mistake of sufficient gravity. The test will normally be satisfied only when there is a mistake either as to the legal character or nature of a transaction, or as to some matter of fact or law which is basic to the transaction [122]. Consequences (including tax consequences) are relevant to the gravity of a mistake [132]. A mistake must be distinguished from mere ignorance, inadvertence, and misprediction [104]. Forgetfulness, inadvertence or ignorance is not, as such, a mistake, but it can lead to a false belief or assumption which the law will recognise as a mistake [105]. Mere ignorance, even if causative, is insufficient [108]. However, the distinctions may not be clear on the facts of a particular case [109]. In order to satisfy the test for setting aside a voluntary disposition on the ground of mistake, the gravity of the mistake must be assessed by a close examination of the facts. The injustice of leaving a mistaken disposition uncorrected must be evaluated objectively, but with an intense focus on the facts of the particular case [126]. The court must make an evaluative judgment whether it would be unconscionable, or unjust, to leave the mistake uncorrected, and form a judgment about the justice of the case [128]. Mrs Pitt had an incorrect conscious belief, or made an incorrect tacit assumption, that the proposed SNT had no adverse tax effects [133]. The SNT could have complied with statutory requirements without any artificiality or abuse of statutory relief. It was precisely the sort of trust to which Parliament intended to grant relief [134].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2011-0115.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2011-0115.txt
new file mode 100644
index 0000000000000000000000000000000000000000..661c62166526053c0fe56e0146624ff97f694a74
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2011-0115.txt
@@ -0,0 +1 @@
+The critical question for Lord Wilson is not the constitutional importance of the right to private prosecutions, which he recognises [27-29]. It is whether, in applying the reasonable prospect test, the DPP frustrates the policy and objects which underpin s.6 of the 1985 Act. [30, 49] In reaffirming, in qualified terms, the right to maintain a private prosecution in s.6, Parliament could not be taken to have intended that the DPP should decline to exercise his discretion so as to intervene and discontinue a prosecution even if it lacks a reasonable prospect of success. [39] The new tests focus on the likelihood of conviction was a more relevant question than the previous no case to answer test. [34] Lord Wilson gives illustrations of private prosecutions which survive the current test [33], and four further reasons to support his conclusions [36]: (1) Parliament did not expressly confine the discretion in s.6(2). (2) The main object behind the 1985 Act, reflected in the report of the Royal Commission in 1981, was to establish a nationwide CPS and to achieve consistent standards in instituting and conducting prosecutions. The reasonable prospect standard was also approved in the Royal Commission report for all prosecutions. [58] (3) A prosecution lacking a reasonable prospect of success draws inappropriately on court resources. (4) A defendant would have a legitimate grievance about being subjected to private prosecution when, by the application of lawful criteria as to the strength of the evidence against him, there would be no public prosecution. Furthermore, as acknowledged in general terms in paragraph 2.3 of the 2009 Code for Crown Prosecutors, the DPP acts unlawfully if he adopts too rigid an approach in applying his policy towards interventions with a view to discontinuance, which would be amenable to judicial review. [37] Lord Neuberger adds that many of the factors justifying the reasonable prospect test in public prosecutions - unfairness to a defendant, costs, use of court time and confidence in the justice system - apply to private prosecutions. [57] The right to initiate a private prosecution remains virtually unlimited and those meeting the evidential and public interest tests are allowed to continue save where there is a particular need for the DPP to take over. [60-1] Whilst mindful of cutting down individuals right of access to the courts, the right to conduct a private prosecution has always been subject to being curtailed by the Attorney General through issuing a nolle prosequi [64]. Lord Kerr observes that the right has been modified by successive enactments over time, including the establishment of the office of the DPP itself. [80] There is nothing to suggest that the policy prior to 2009 was immutable or inviolable. [84] The new policy might restrict private prosecutions, but it is not unacceptable as a matter of law. [71] Lord Mance however emphasises the strong historical and constitutional basis for private prosecutions [88-90, 94, 99, 100, 105-6]. He approves the words of Laws LJ in R v Director of Public Prosecutions, Ex Parte Duckenfield [2000] 1 WLR 55, at 68-9, that a reasonable prospect test would emasculate the right afforded by s.6(1). [113] The right of access to justice granted in s.6(1) was not intended to be made ineffective or subverted by s.6(2), which can only be removed by clear words. [107] The unspecified nature of the words in s.6(2) were aimed at public policy not new evidential grounds [114]. The fundamental right in s.6(1) was not undermined by the potential harm resulting from an unsuccessful prosecution. It provides an important safeguard when an individual prosecutor might have misjudged the evidence. [115] There is no justification for such a radical change of policy. [117-118] Lady Hale expresses doubts over the reasonable prospect test as there could be, as in this case, two reasonable but different views on whether a reasonable court would convict. [126-131] This leaves a victim dependent on which prosecutor handles the case, exacerbated by the fact the exercise is done on the papers without examination of witnesses. [131] The possibility of judicial review is not a sufficient safeguard and the test could raise issues under the European Convention of Human Rights. [132-3]
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2011-0117.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2011-0117.txt
new file mode 100644
index 0000000000000000000000000000000000000000..690225d10675928c95984a241a51621ec56b7178
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2011-0117.txt
@@ -0,0 +1 @@
+The majority concludes that, whilst one of the main purposes of the 1996 Act is to ensure that members of a homeless family are not split up by local housing authorities, section 176 does not prevent a local housing authority offering a homeless family two separate units of accommodation if they are so located that they enable the family to live together in practical terms. That is a factual judgment to be made by the local housing authority [17]. The 1996 Act requires accommodation provided by a local housing authority to be suitable. However, Ms Sharif no longer denies that the two flats offered to her by the Council meet that requirement [18, 29]. Neither the word accommodation nor the words together with in section 176 imply that a homeless family must be accommodated in the same unit of accommodation [5, 17]. Had the Councils reviewing officer been asked to answer the question of whether section 176 prohibits the Council from housing a homeless family in two separate units of accommodation, it is reasonably clear that he would have answered in the negative. The main obstacle to family living which had been raised before the reviewing officer had been the problem of caring for Ms Sharifs father in a separate unit of accommodation. That problem was discounted by the reviewing officer, on the basis that the problem of communication between the two flats would be no greater than in a house with two floors [18]. The arguments made on behalf of Ms Sharif would produce surprising results. For example, the Council would not be able to improve the position of a homeless family residing in an overcrowded house or flat by offering them an additional neighbouring unit of accommodation, even on a temporary basis [19]. Ms Sharif also accepted that two separate rooms in a hostel or hotel would satisfy the requirements of section 176 of the 1996 Act. However, the majority found it hard to see why that should be treated differently from the provision of two adjacent flats [20, 30]. Lady Hale emphasises that there is no requirement under the 1996 Act for local housing authorities to provide a communal living space to those who are, or claim to be, homeless [30]. The majority emphasises that their interpretation of section 176 of the 1996 Act does not give local housing authorities a free hand. It is a fundamental objective of the 1996 Act to ensure that families can live together in a true sense; accommodation provided by a local housing authority will not satisfy section 176 unless it enables that objective to be achieved [23]. Lord Hope says that the test is not to be exploited by local housing authorities; it must be applied reasonably and proportionately [28]. Lord Kerr, dissenting, says that section 176 requires a local housing authority to accommodate a homeless family in the same unit of accommodation. The accommodation must be of a character that will allow all members of the family to live within it [34]. Lord Kerr concludes that the words together with in section 176 imply joint occupation of the same unit of accommodation [32, 33]. He takes the view that sufficient proximity is very different from living together [35].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2011-0196.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2011-0196.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e69de29bb2d1d6434b8b29ae775ad8c2e48c5391
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2011-0233.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2011-0233.txt
new file mode 100644
index 0000000000000000000000000000000000000000..156c1cb858e261be3c8c72964a5966bc1b2170cc
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2011-0233.txt
@@ -0,0 +1 @@
+A clearly discernible historical trend of increasing the age at which liability for more serious offences is incurred, while reducing the sentence imposed, can be detected [3]. Section 4 as originally enacted referred to unlawful carnal knowledge of a girl under 13 years old. This was amended to 14 years by the Children and Young Persons (Northern Ireland) Act 1950 (the 1950 Act). Section 5 of the 1885 Act created the same offence in relation to a girl between the ages of 13-15. Section 5 and section 6 (permitting defilement on premises) contained provisos that it would be a defence to show that the accused reasonably believed the girl was of or above the age of 16 years. Such defences were abolished by section 2 of the Criminal Law (Northern Ireland) Amendment Act 1923, as amended by section 140 of the 1950 Act. Section 5 thus referred to any girl under 17 years old, with an express prohibition of any defence of reasonable belief that she was 17 or older. No such type of defence has ever been explicitly provided in any version of section 4 [7-13]. The constitutional principle that mens rea is presumed to be required in order to establish criminal liability is a strong one. It is not to be displaced in the absence of clear statutory language or unmistakably necessary implication. Where the statutory offence is grave and carries a heavy penalty or a substantial social stigma, the case is enhanced against implying that mens rea of any ingredient of the offence is not needed [26]. One must at least begin with an examination of what the legislative intention was before considering whether modification of that intention is justified by later amendments or contemporary social contexts [31]. There can really be no doubt that the section in its original form was intended to impose criminal liability for carnal knowledge of a female under the age of 14 without proof that the perpetrator knew or had reason to believe that she was below that age. The decision in R v Prince (1875) LR 2 CCR 154 10 years prior to the 1885 Act confirmed that proof of knowledge or lack of reasonable belief in the age of the victim was not required under section 51 of the Offences Against the Person Act 1861. This formed the crucial backdrop to the 1885 Act. The juxtaposition of sections 5 and 6 of the 1885 Act, which originally contained a defence of reasonable belief, with section 4 make it clear that no such defence was to be provided for under the latter section [32]. It would be anomalous if the subsequent removal of the defence from sections 5 and 6 meant that it should be implied into section 4 to which it had not previously applied [34]. While the amended legislation is to be construed in its revised form, it does not follow that its antecedent history has to be entirely left out of account. To suggest that the removal of the defence under sections 5 and 6 would have the effect of introducing it under section 4 by implication takes contrivance too far [36]. The policy approach of protecting younger females by ensuring that a defence of reasonable belief should not be available has been unswerving. Further, there is nothing in the contemporary social context which militates against the denial of the defence of belief as to age for section 4 offences [37- 38].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2011-0244.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2011-0244.txt
new file mode 100644
index 0000000000000000000000000000000000000000..cf44ea40765778401d4bc66aaecc3f3b733e2e24
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2011-0244.txt
@@ -0,0 +1 @@
+Whilst there is no continuing justification for the former blanket practice whereby the Crown was not required to give a cross-undertaking in any circumstances, a general distinction still exists between private claims and law enforcement actions [33]. In a private claim, a claimant seeking an injunction will ordinarily be expected to give a cross- undertaking in damages to the defendant(s) and to third parties. This can be justified on the basis that such a claimant should be prepared to back its own interest with its own assets against the event that it obtains the injunction unjustifiably with the result that harm is caused to the interest of another [30]. However, different considerations arise in relation to law enforcement actions, where a public authority is seeking to enforce the law in the interests of the public generally, often in pursuance of a public duty to do so, and enjoys only the resources which have been assigned to it for its functions [31]. In these circumstances public authorities cannot generally be expected to back their legal actions with the public funds with which they are entrusted for the purpose of undertaking their functions [33]. Such a requirement may inhibit public officials from fulfilling their public duties for fear of exposing public funds to claims for compensation. The position regarding the giving of any cross-undertaking cannot differ according to whether it is intended to protect a defendant or a third party [14, 34]. In both instances the cross- undertaking covers the loss caused by the grant of an injunction in circumstances where the person incurring the loss is essentially innocent [34]. A pragmatic distinction can be drawn between an undertaking in respect of costs and an undertaking in damages. Public authorities should be able to enforce the law without being inhibited by the fear of cross-claims and the exposure of their resources, and this applies with particular force to any open-ended undertaking in respect of third party loss. It does not apply with the same force to a more limited cross-undertaking in respect of third party costs [35]. There are no special circumstances why the FSA should be required to give a cross- undertaking in respect of losses suffered by third parties on the particular facts of this case. In a case such as the instant one, where the FSA takes positive action to shut down allegedly unlawful activity, it does not in the course of so doing assume any responsibility towards or liability for breach of a duty of care enforceable at the instance of third parties [37-38]. The FSA enjoys a further power to freeze the assets of a permitted person, without making any application to a court, under Part IV of the FSMA. In the exercise of its powers under Part IV the FSA is excluded from any risk of liability by virtue of paragraph 19 of Schedule 1 to FSMA. There would therefore be an apparent imbalance were the FSA required to accept potential liability in cases such as the instant one concerned with the activities of unauthorised persons [37-38].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2011-0260.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2011-0260.txt
new file mode 100644
index 0000000000000000000000000000000000000000..191e857fd41cafdd9b71123225654cf44ffe7ff2
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2011-0260.txt
@@ -0,0 +1 @@
+The potential liability as a result of an FSD issued after the commencement of an administration or an insolvent liquidation (an insolvent event) can constitute a provable debt within rule 13.12 of the Insolvency Rules 1986 (SI 1925/1986) (the Insolvency Rules). Whilst the potential FSD regime liabilities in the present cases do not fall within rule 13.12(1)(a) [68]-[71], they fall within rule 13.12(1)(b) [83]. It is common ground that if a CN had been issued in respect of a target before an insolvent event, it would give rise to a provable debt. The courts below considered that, if a CN were issued after an insolvent event, it would give rise to a provable debt if it was based on an FSD issued before the insolvent event. It appears somewhat arbitrary that the characterisation and treatment of the liability under the FSD regime should turn on when the FSD or CN happens to have been issued, if it is based on a state of affairs which existed before the insolvent event [59]. The courts below felt constrained by a consistent line of authority from reaching the conclusion the Supreme Court has reached, although it appears that they would have so held if they had felt able to do so [56]. These earlier authorities can be overruled: the judgments are very short of reasoning, are inconsistent with another line of authority, and were decided at a time when the legislature and the courts were less anxious than currently for an insolvency to clear all the liabilities of a bankrupt (as they were all concerned with individual insolvencies) [87]-[94]. There is no doubt that the liability which is imposed on a target on the issuing of an FSD after an insolvent event is a liability for the purposes of rule 13.12(1)(b), as it is a liability under an enactment within rule 13.12(4). The question is, however, whether it can be said to be a liability which arose by reason of any obligation incurred before the insolvent event [72]. That issue centres on the meaning of the word obligation in rule 13.12(1)(b) [74]. At least normally, in order for a company to have incurred a relevant obligation under rule 13.12(1)(b), it must have taken, or been subjected to, some step or combination of steps which (a) had some legal effect (such as putting it under some legal duty or into some legal relationship), and which (b) resulted in it being vulnerable to the specific liability in question, such that there would be a real prospect of that liability being incurred. If these two requirements are satisfied, it is also relevant to consider (c) whether it would be consistent with the regime under which the liability is imposed to conclude that the step or combination of steps gave rise to an obligation under rule 13.12(1)(b) [77]. In these appeals, all these requirements are satisfied, and accordingly the relevant obligation arose before the target companies went into administration. Given that the potential FSD liability in each of these cases is a provable debt within rule 12.3 of the Insolvency Rules, and therefore it would not be an expense, it is strictly unnecessary to consider whether the liability under an FSD served after an insolvent event would be a liquidation expense, if, as the courts below held, it was not a provable debt [97]. However, given that this issue was fully debated before the Court, and is one of some potential importance, the Court concludes that, if the liability did not rank as a provable debt, it would not count as an expense of the administration [98]-[114]. The Court also concludes that if it had taken a different view on the provable debt issue, it would not have held that it had a residual discretion to direct the administrator of a target company to accord to the potential liability under the FSD regime a higher ranking than it would be given under the relevant legislation [115]-[127]. Lord Sumption adds some observations about the limitations on what constitutes an obligation incurred for the purpose of rule 13.12(1)(b) of the Insolvency Rules [129]-[136].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0007.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0007.txt
new file mode 100644
index 0000000000000000000000000000000000000000..2fa51837ecd91e1ed099d53f6c8b3261e8aea775
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0007.txt
@@ -0,0 +1 @@
+The difficulty with the appellants argument is that the statute says nothing about the potential consequences of failure to use an approved device. This is despite the fact that there are numerous examples of other statutes where such consequences are expressly spelled out, such as in relation to obtaining specimens of breath for road traffic offences [8]. There is a well understood common law rule that evidence which has been obtained unlawfully does not automatically become inadmissible. It is clear that this rule extends equally to evidence created by an unlawful process as it does to existing material uncovered by unlawful process. The common law background to the legislation (article 61 (8B)) shows that inadmissibility of the fingerprints here under consideration cannot possibly simply follow from the existence of the requirement for device approval [9]. It is not correct to say that article 61 (8B) would have no purpose unless fingerprints obtained from unapproved devices were inadmissible at trial. A defendant who was asked to give a fingerprint on an unapproved device could lawfully refuse to do so. While, if such devices were found to be routinely in use by police, there would be no defence to an application for judicial review in which their unlawfulness could be declared and further use prohibited [10]. The appellants relied on the rule that the product of a breathalyser test was inadmissible unless the testing device was an approved one. However, the requirement for approval of fingerprint devices is not analogous to that in cases of breath tests or speed guns. The latter are methods of measuring something that cannot be re-measured, they capture a snapshot of the suspects activity and are often the offence itself i.e. being found to be over the prescribed limit of alcohol at the time of driving. The fingerprints on the other hand could be reproduced at any time afterwards, and would be the same. If the Livescan readings were disputed they could readily be independently checked for accuracy and further fingerprints taken by a different method. The ease of which this could be done shows there was no need for Parliament to stipulate that the product of unapproved fingerprint readers should be inadmissible. Further, no challenge was ever made by the appellants to the accuracy of the fingerprints taken by the Livescan device [15]. The background material to the legislation shown to the Court further shows that the purpose of the requirement for device approval was not principally the protection of the individual against the risk of conviction on inaccurate evidence [16]. Relevant parts of the Protection for Freedoms Act 2012 and Criminal Justice (Northern Ireland) Act 2013 regarding fingerprints that have yet to come into force further support the construction of the legislation chosen by the Supreme Court in this case as, where required, express provision is made for evidence to be inadmissible [18].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0025.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0025.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e94b28d226d474d5749413a60f943dffcb77365d
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0025.txt
@@ -0,0 +1 @@
+Lord Reed begins by questioning whether the way the case has been approached by the courts below and in the parties printed cases is correct [5-7]. Instead of viewing the representation as an event whose legal consequences were fixed at the time when the statement was made, Lord Reed concludes that the case in fact concerns a continuing representation capable of remaining in effect until the contract is concluded [31]. The representation contained in the critical email was undoubtedly of a continuing nature so long as Mr Erskine remained the prospective contracting party [24]. In principle, the possibility that a representation may continue to be asserted, and may have a causative effect so as to induce the conclusion of a contract, is not necessarily excluded where, as here, the contracting parties are not the original representor and representee. The inference can be drawn from the parties conduct that they proceeded with the negotiation and conclusion of the contract on the basis that the accuracy of the representation continued to be asserted by the representor, implicitly if not expressly, after the identity of the prospective contracting party had changed. In such circumstances, the representation could continue to have a causative effect, so as to induce the conclusion of the contract [25]. Where the inference to be drawn is that a representation continued to be made until the contract was concluded, it may also be inferred that the risk of harm being suffered as a result of reliance upon it, in the event that it was inaccurate, continued to be foreseeable. In such circumstances, the representor may be taken to have assumed responsibility for the accuracy of the representation towards the contracting party who relied upon it, even where he is not the original representee [26]. Just as a representation may continue up to conclusion of the contract when made by a companys agent prior to the commencement of his agency, it may have the same effect where the person to whom it is addressed becomes the agent of the contracting party [27-28]. In this case, the negotiations simply continued after it became apparent that an LLP was to be used as the vehicle for Mr Erskines investment. Neither party drew a line under the previous discussions, disclaimed what had previously been said or sought assurance that it could be relied upon as between the contracting parties [30]. In continuing and concluding the contractual negotiations with Cramaso, through its agent Mr Erskine, without having withdrawn the representation earlier made to him as an individual, the respondents by their conduct implicitly asserted to Cramaso the accuracy of that representation. It continued to be foreseeable that the representation would induce the other party to the negotiations to enter into a contract. The respondents therefore assumed a responsibility towards Cramaso for the accuracy of the representation and owed it a duty of care, which they failed to fulfil [31]. Cramaso is entitled to recover damages for any loss suffered as a result, under section 10 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 [32-43]. In a concurring judgment, Lord Toulson rejects the respondents argument that it was necessary for Cramaso to show that, at the time of the critical email, Mr Lewis knew or ought to have known that there was a high degree of probability that Mr Erskine would be sent the email and would rely upon it. The situation where a statement is made by one party to another, who in turn relies upon it in entering a contract with a third party is different to the present situation, where a statement was made during contractual negotiations by one prospective party to another in relation to the very transaction about which they were negotiating [51]. Lord Toulson agrees with Lord Reed that the fact the representation was negligent rather than fraudulent does not affect its continuing nature; what matters is its continuing potency as an inducing factor [63]. The case will have to return to the Court of Session for further procedure in relation to remedies [44].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0072.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0072.txt
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index 0000000000000000000000000000000000000000..ea8a0d2bc865284b25bb0313bde04680ea8f2cd7
--- /dev/null
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@@ -0,0 +1 @@
+The purpose of the European Council Framework Decision 2002/584/JHA of 13 June 2002 (the Framework Decision) and Part 1 of the Act was to create a simplified and accelerated procedure based on mutual recognition [7]. The courts of states being asked to consider EAWs should generally take information contained in them at face value. An EAWs validity depends on whether the prescribed particulars are found in it, not on whether they are correct. A defendant cannot normally challenge its validity by reference to extraneous evidence. If this is true of information in an EAW which was wrong at the time of issue, it is true for information which was correct at the time of issue but ceased to be correct due to subsequent events. A EAW is either valid or not valid. It cannot change over time [8]. It does not follow that nothing can be done to correct prescribed particulars that have become incorrect but the remedy must be at the stage when the court is deciding whether to extradite [9]. Lord Sumption drew attention to two safeguards against unjustified extradition in this context. The first was mutual trust between parties to the Framework Decision to ensure information in a EAW is true. The requesting authority has the right to forward additional information at any time and the requested UK authority has the right to receive it and to request further information [10]. The second safeguard is the courts inherent right to ensure its process is not abused, for example, where an EAW has been obtained for improper purposes [11]. A court can question statements made in EAW on the grounds of an abuse of process. However, Lord Sumption noted that: (a) this jurisdiction is exceptional; (b) the facts needed to correct the error must be beyond legitimate doubt and abuse of process must not become an indirect way of challenging the factual basis of conduct alleged in a EAW; (c) the error must be material to the operation of the statutory scheme. It is inconsistent with the Framework Decision to refuse to execute a EAW, in which the prescribed particulars were included, because of immaterial errors [13]. In the present case, the EAW was valid when it was issued to Mr Zakrzewski. It did not become invalid when the aggregation order was made. The particulars of sentence were no longer complete but they were not wrong. The evidence is that in Polish law the original sentences remain valid but the cumulative one determines what period of imprisonment will be treated as satisfying them [14]. The fact that the imprisonment period which would satisfy the four original sentences was shortened was immaterial, as even the shorter sentences were longer than the minimum of 4 months required for disclosing an extradition offence under the Act [15]. The sentence of the court will rarely be the current operative sentence since the period to be served will be affected by factors such as remission or parole as well as aggregation. Criminal procedures vary from one jurisdiction to another without affecting the ordinary criteria for extradition or undermining the purpose of the Framework Decision or Part I of the Act [16].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0109.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0109.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e37cd338bf50ac7eb7fa030bf2d1e83c14286ed3
--- /dev/null
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@@ -0,0 +1 @@
+The only true question in the case is whether Mr Stotts claim falls within the scope of the Montreal Convention. There is no dispute between Mr Stott and Thomas Cook as to the interpretation of the EC Regulations or UK Regulations, or their compatibility with the Convention. The EU cases do not assist: that other Regulation concerned general standardised measures, and the European Court had recognised that any claim for individualised damages would be subject to the Convention. The case raised no question of European law [54-59]. On substantive scope: the Convention was intended to deal comprehensively with the liability of the air carrier for whatever might physically happen to passengers between embarkation or disembarkation. The fact that Mr Stotts claim relates to disability discrimination makes no difference. The underlying difficulty is that the Montreal Convention and its predecessors long pre- dated equality laws. It is unfair that someone suffering as Mr Stott had could not obtain any compensation, but that is the plain meaning of the Convention. It would be desirable for the states parties to the Convention to consider its amendment. It is also possible that the Civil Aviation Authority could take other enforcement actions against Thomas Cook [61-64]. On temporal scope: the operative causes of Mr Stotts treatment undoubtedly began at check-in, prior to embarkation. However, this is not enough. Mr Stotts claim is for damages for the humiliation and distress that Mr Stott had suffered during the course of the flight, which fall squarely within the Convention period of exclusivity. To hold otherwise would encourage deft pleading and would circumvent the purpose of the Convention [60]. In her concurring judgment, Lady Hale considers it disturbing that the Convention excludes damages claims for breaches of individuals fundamental rights. It is particularly unsettling that this applies not only to private air carriers such as Thomas Cook, but also to state airlines. A treaty which contravened a fundamental international law norm would be void. Torture is a fundamental norm of this kind, and race discrimination might be another. There is a respectable view that Mr Stotts treatment would, under the European Convention on Human Rights, constitute inhuman and degrading treatment (IDT). However, it appears that IDT has not yet become a fundamental international law norm. Since Thomas Cook is not a state air carrier, these issues do not arise in this case. At the very least, however, the grave injustice done to those in Mr Stotts position should be addressed by the parties to the Convention [67-70].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0124.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0124.txt
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index 0000000000000000000000000000000000000000..5377a1b7bba5cf9e6db0dce96b30f0dc7ca859b5
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0124.txt
@@ -0,0 +1 @@
+The court addresses this argument first by considering the application of familiar domestic law principles to the statutory definition of terrorism, and then by considering whether that results in a conclusion which has to be adapted to meet those requirements of international law that are incorporated into domestic law [25]. Applying the familiar domestic law approach to statutory interpretation, the Court holds that there is no basis on which the natural, very wide, meaning of section 1 of the 2000 Act could be read restrictively, as Mr Gul argued. The definition had clearly been drafted in deliberately wide terms so as to take account of the various and possibly unpredictable forms that terrorism might take, and the changes which may occur in the diplomatic and political spheres [312, 38]. In reaching this conclusion, the Court considers that section 117 of the 2000 Act, which prohibits the prosecution of most offences under the 2000 and 2006 Acts without the consent of the Director of Public Prosecutions or (in some cases) the Attorney General, is of no assistance [35-37, 42]. The Court also observes that creating an offence with a very broad reach and then invoking prosecutorial discretion as a means of mitigation is undesirable in principle and should only be adopted if it is unavoidable. In these circumstances, the only reason for the Court to interpret the definition more restrictively would be if it conflicted with the European Convention on Human Rights (which was not relied on by Mr Gul) or with the United Kingdoms obligations in international law more generally [38]. The first aspect of Mr Guls argument here was that the United Kingdoms international obligations require it to define terrorism more narrowly in its criminal laws, as it should have the same meaning as it has in international law. The second aspect was that the United Kingdom could not criminalize terrorism happening abroad except so far as international law allowed. Both aspects of the international law argument face the insuperable obstacle that there is no accepted definition of terrorism in international law [44]. The U.N. General Assemblys working group seeking to agree a comprehensive international convention on terrorism, reported in 2012 that there were disagreements as to the precise distinction between terrorism and legitimate struggle of peoples fighting in the exercise of their right to self-determination. And, although there are other, non-comprehensive treaties dealing with terrorism, there is no plain or consistent approach in UN Conventions on the issue [4648]. This is consistent with what was said by this Court in Al Sirri v Secretary of State [2012] UKSC 54, [2012] 3 WLR 1263, para 37 [44]. Moreover, there have been U.N. resolutions referring to the activities of al-Qaeda and the Taliban as terrorism, although their actions involved insurgents attacking forces of states and intergovernmental organizations in non- international armed conflict. And the international law of armed conflict does not give any immunity combatants in non-international armed conflicts [4950]. It is true that some other provisions of the 2000 and 2006 Acts give effect to treaties that do not extend to insurgent attacks on military forces in non-international armed conflicts. But there was no reason why the United Kingdom could not go further in the 2000 Act than the treaties had. And even if those treaties had intended to limit the definition of terrorism that they applied, that would only affect the particular provisions of the 2000 Act that implemented those treaties [54]. As to the second aspect of the international law argument, it is irrelevant for present purposes whether the United Kingdom can criminalize certain actions committed abroad, because the material in this case was disseminated in the United Kingdom [56]. Therefore, whether one approaches the matter as an issue of purely domestic law, or as an issue of domestic law read in the light of international law, there is no valid basis for reading the definition of terrorism more narrowly than the plain and natural meaning of its words suggested. In parting, the Court notes that although the issue is one for Parliament to decide, the current definition of terrorism is concerningly wide. [38] Canada and South Africa, for example, exclude acts committed by parties regulated by the law of armed conflict from the definition, and a recent report in Australia recommends that that country should follow suit. [61] The Independent Reviewer of Terrorism Legislation in the United Kingdom, Mr David Anderson QC, has made the point that the current law allows members of any nationalist or separatist group to be turned into terrorists by virtue of their participation in a lawful armed conflict, however great the provocation and however odious the regime which they have attacked [61]. The 2000 and 2006 Acts also grant substantial intrusive powers to the police and to immigration officers, which depend upon what appears to be a very broad discretion on their part. While the need to bestow wide, even intrusive, powers on the police and other officers in connection with terrorism is understandable, the fact that the powers are so unrestricted and the definition of terrorism is so wide is probably of even more concern than the power of criminal prosecution to which the Acts give rise. [64]
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0143.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0143.txt
new file mode 100644
index 0000000000000000000000000000000000000000..8dc650fc3d2acc70b03daf625211f5112f5c6248
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0143.txt
@@ -0,0 +1 @@
+First Ground: Mr OBrien argued that if his contempt satisfied the definition of extradition offence in s. 148 of the 2003 Act, s. 151A precluded a United Kingdom court dealing with him for that contempt [14-16]. Mr OBriens argument required reading these two sections in isolation. However, it is necessary to see how those sections fit into the structure of the 2003 Act [20]. Each of Parts 1-3 of the 2003 Act contain a similar definition of extradition offence, in each case referring to conduct punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment, with a common structure across the definitions [21]. The Extradition Act 1989 was replaced by the 2003 Act in order to implement, in Part 1 of the 2003 Act, an EU Framework Decision [22]. Under the Framework Decision, it is a prerequisite of a valid arrest warrant that the conduct of which the person is accused or has been convicted constitutes a criminal offence under the law of the requesting state [25]. In relation to Part 1 (dealing with extradition from the UK to other Member States), the definition of extradition offence accordingly requires that an offence either be a listed extraditable offence or an offence under the law of the United Kingdom [28]. A similar scheme is in place in relation to extradition from the UK to those non-EU countries with which the UK has extradition arrangements, governed by Part 2 of the 2003 Act. So, sections 137 and 138 of the 2003 Act require that an extradition offence concerns conduct which would constitute an offence under UK law [29-30]. That accords with the essential nature of extradition as it has been understood in the UK [31-33]. Part 3 of the 2003 Act deals with extradition to the UK. S. 148 (within Part 3) has no direct application to this case, since the UK judiciary is not involved in the process of obtaining Mr OBriens extradition [35]. Nonetheless s. 151A should be understood in the light of the wider scheme of the 2003 Act. It is clear that nothing can constitute an extradition offence unless it is a criminal offence under the relevant state, here the UK [36]. Second Ground: A restraint order under POCA is an interim remedy, aiming to prevent the disposal of realisable assets during a criminal investigation. The Crown Court has an inherent jurisdiction to treat breach of such orders as contempt of court [37-38]. There is a well-recognised distinction between criminal contempt, covering conduct itself a crime, and civil contempt, covering conduct which is not itself a crime but is punishable by the court in order that the courts orders be observed. A civil contemnor does not receive a criminal record [39-41]. If a victim of Mr OBriens fraud had obtained a freezing order against him similar to the POCA restraint order and Mr OBrien had disobeyed and absconded, the victim would clearly have been able to bring contempt proceedings following his extradition [43]. There is no relevant difference with a POCA order. The key is the nature and purpose of the order, not the court in which the order was made [44]. Mr OBriens contempt was civil, and his committal is not barred by the specialty principle.
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0162.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0162.txt
new file mode 100644
index 0000000000000000000000000000000000000000..0cdc1df6c2f1fa818b7793293dc2443d95e46cd8
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0162.txt
@@ -0,0 +1 @@
+Lord Hodge examines the legislative history behind the UKs system of national insurance, which shows that NICs have indeed been levied on a basis that is different from the emoluments on which income tax has been raised [7-13]. He considers it significant that Parliament, in the National Insurance Act 1946, chose to use the word earnings rather than emoluments. The latter word has been interpreted by the courts as referring to actual money payments and benefits in kind capable of being turned into money by the recipient [10]. Lord Hodge refers to primary legislation in 1911 and 1946 and also subordinate legislation for the purpose of demonstrating that the scheme of NICs legislation by which earnings includes non-convertible benefits in kind (unless they are disregarded) has existed since 1946 [11-13]. As a result of the assumptions on which the subordinate legislation had been framed, HMRC had to argue that earnings are paid to an earner both when assets are transferred to a pension scheme to be held on a trust and also when payments are made from the trust fund. HMRC looked to the payment and not to what the earner received. The sum paid into the trust was part of Mr McHughs remuneration, going into a trust fund for the sole benefit of Mr McHugh and his wife. Payments out to him from the trust would also, it was submitted, be earnings as they were also payments to him in respect of his employment. Double counting would be avoided only as a result of specific disregards in the subordinate legislation [15]. Lord Hodge considers that remarkable position to be wrong for three reasons: - First, the ordinary man on the underground would consider it counter-intuitive that a person would earn remuneration both when his employer paid money into a trust to create a fund for his benefit and again when at a later date the trust fund was paid out to him. If one gives words their ordinary meaning, it is clear that a retired earner receives earnings in respect of his employment in the form of deferred remuneration when he receives his pension. The payment from the trust is deferred earnings; the payment into it is not earnings [16]. - Secondly, HMRCs view could only be sustained by looking exclusively at what was paid and ignoring what the earner received. Such an interpretation denudes the word earnings of any meaning, so the phrase earnings are paid would amount to payments are made [17]. - The third reason relates to the method of computation. By treating the payment into the trust as earnings, HMRC fail to take into account the existence of the contingency. The transfer gave Mr McHugh not cash and treasury stock, but only the entitlement to a future pension or relevant benefits once the condition of reaching retirement age had been purified. The hypothetical value to his entitlement would not be the value at the date of the transfer of the assets paid into the fund, but the value of Mr McHughs contingent right to the trust fund such as it would be at his retirement age. That would not be a simple exercise, and HMRCs approach fails to address what it was that Mr McHugh received when the transfer was made [18]. Lord Hodge concludes that the transfer to the trust was not the payment of earnings for section 6(1) purposes [19]. The court allows FMLs appeal and reinstates the judgment of the Upper Tribunal [22].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0179.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0179.txt
new file mode 100644
index 0000000000000000000000000000000000000000..7b73f4008199c6bbc8bebe7f7448b7943d4b6782
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0179.txt
@@ -0,0 +1 @@
+The CJEU decided to reformulate the first two questions referred. This introduced ambiguity enabling each party to claim success on the issue of whether the Secretary of State had breached article 22 by not applying to extend the deadline. However, it is unnecessary to make a final ruling on the meaning of the CJEUs judgment on these questions. [5] The CJEUs answer to the third question was that the fact that an air quality plan complying with article 23(1) has been drawn up does not in itself mean the member state has met is obligations under article 13. Its answer to the fourth question was that where a member state has failed to comply with article 13 and not applied to postpone the deadline under article 22, it is for the national court to take any necessary measure so that the authority establishes the plan required by the Directive in accordance with the conditions laid down by the latter. [6] The time taken by these proceedings has meant that the article 22 issue has no practical significance, except in relation to the requirements of Annex XV section B, which apply to a plan produced under article 22 but not, in terms, to a plan under article 23. However, as the Commission explained in its observations to the CJEU, the requirements of article 23(1) are no less onerous than those under article 22. The court is able where necessary to impose requirements which are appropriate to secure effective compliance at the earliest possible opportunity. The checklist of measures under paragraph 3 of section B have to be considered in order to demonstrate compliance with either article 22 or 23. [23-24] It is unnecessary to reach a concluded view on whether the article 22 procedure was obligatory. Lord Carnwath saw force in the Commissions reasoning, which treats article 22 as an optional derogation, but makes clear that failure to apply for a postponement, far from strengthening the position of the state, rather reinforces its essential obligation to act urgently under article 23(1) in order to remedy the danger to public health as soon as possible. [25-26] The Secretary of States argument that there was no basis for an order quashing the 2011 plans, nor a mandatory order to replace them, was rejected. The critical breach is of article 13, not of articles 22 or 23. The CJEU judgment leaves no doubt as the seriousness of the breach, which has been continuing for more than five years, nor as to the responsibility on the national court to secure compliance. Further, during those five years the prospects of early compliance have become worse (2014 projections predicting non-compliance in some zones after 2030). The Secretary of State accepted that a new plan has to be prepared. The new government should be left in no doubt as to the need for immediate action, which is achieved by an order that new plans must be delivered to the Commission not later than 31 December 2015. [19, 28-29, 33]
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0181.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0181.txt
new file mode 100644
index 0000000000000000000000000000000000000000..7515e43bfc9cfec7af4abf998ec73bbb971548f2
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0181.txt
@@ -0,0 +1 @@
+The correct approach to construction of the rules is well settled, as explained by Lord Brown in Mahed v Entry Clearance Officer [2010] 1 WLR 48. Read in accordance with those principles, it is clear that paragraph 352D does not cover AAs case and cannot be rewritten in order to do so [14-15]. Whether or not Kafala could be treated as a form of adoption for other purposes, the definition of adoptive parent in paragraph 6 is more restricted. It extends to de facto adoption only within the limitations laid down by paragraph 309A, which does not cover this case [15-16]. A number of international instruments call for a broad approach to the protection of the interests of children. The best interests principle is now, in appropriate areas of law, recognised both by domestic and international law [17]. However, taking them at their highest, there is no specific obligation covering the position of AA [18]. Subject to the issue of discrimination, there is no international obligation which goes further in practical terms than the protection which has been afforded to AA under human rights law [21]. It appears harsh that under the rules AA is treated less favourably than her adoptive siblings, largely because of the tragic circumstances in which parental responsibility passed to her brother-in-law, taken with the lack of any functioning legal system allowing for formal adoption in the country from which she comes. However, it is unnecessary to decide in the context of the present appeal whether or not such treatment could give rise to a claim for unlawful discrimination under article 14 ECHR or otherwise. This is because any rights which AA has in that respect would apply equally to her position in this country, regardless of the basis of her admission. In exercising any discretion in relation to the grant or extension of definite leave to remain, the Secretary of State is obliged to act in conformity with the Convention, including article 14. It is not necessary to reinterpret the rules to achieve that result [24].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0247.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0247.txt
new file mode 100644
index 0000000000000000000000000000000000000000..58c97e77a26244a9782110743ed44055bef9aae4
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0247.txt
@@ -0,0 +1 @@
+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.
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0249.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0249.txt
new file mode 100644
index 0000000000000000000000000000000000000000..57ba9c9283157fb843239578409380a9691ed606
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0249.txt
@@ -0,0 +1 @@
+Issue 1: Convention jurisdiction: In its judgment of July 2011 in the Al-Skeini case, the European Court of Human Rights decided that six Iraqi civilians who had died as a result of the actions of British armed forces in Iraq were within the UKs jurisdiction for the purposes of the Convention. The judgment does not answer issue 1 directly, but elements can be extracted from it which point clearly to the conclusion that the Court reaches in this case. It formulates a relatively general principle that extra-territorial jurisdiction can exist whenever a state through its agents exercises authority and control over an individual. It also indicated that Convention rights can be divided and tailored to the particular circumstances of the extra-territorial act in question, as opposed to being an indivisible package. A states extra-territorial jurisdiction over local inhabitants exists because of the authority and control that is exercised over them as a result of the authority and control that the state has over its own armed forces. They are all brought within the states jurisdiction by the application of the same general principle [42 52]. Issue 2: Snatch Land Rover claims under article 2 of the Convention: In this area, the court must fully recognise the wide margin of appreciation to be given to the state and avoid imposing obligations which are unrealistic or disproportionate. But it must give effect to those obligations where it would be reasonable to expect the individual to be protected by article 2. Policy decisions made at a high level of command and things done on the battlefield will fall outside the scope of article 2. But whether claims which are between these two categories are within the scope of article 2 will require the exercise of judgment in the light of the facts of each case [76]. The present claims provide only brief outlines of the claimants cases and they pre-date developments in relevant case law on article 2. The circumstances in which the various decisions were made need to be inquired into before it can be determined with complete confidence whether or not there was a breach of article 2. However, given the Courts guidance on the margin of appreciation to be given to the state, it is far from clear that the claimants will be able to demonstrate such a breach [78 81]. Issue 3: Challenger claims and Ellis negligence claim: The doctrine of combat immunity should be construed narrowly and should not be extended beyond its established scope to the planning of and preparation for active operations against the enemy. The Challenger claims are not within the scope of the doctrine because they relate to decisions which are sufficiently far removed from the pressures and risks of active operations against the enemy. The Ellis negligence claim is less obviously directed to things done away from the theatre of battle so it is arguably within the doctrine. It would be premature for these claims to be struck out and the issue should be open to further argument in the light of the evidence [89 96]. The circumstances in which active operations are undertaken by the UKs armed services today vary greatly and cannot all be grouped under a single umbrella as if they were all open to the same risk of judicialising warfare. However, considerations similar to those affecting the Snatch Land Rover claims under article 2 arise in relation to whether it would be fair, just and reasonable to impose a duty of care on the MoD in this area. The question whether the negligence claims in this case entail subjecting the MoD to duties that are unrealistic or excessively burdensome cannot properly be determined without hearing evidence [98 100]. Minority judgments: Lord Mance (with whom Lord Wilson agrees) would have struck out all three sets of claims in their entirety, essentially because they are not suitable for resolution by a court [125 137, 146, 150 152]. For the same reasons, Lord Carnwath would have struck out the Challenger claims. However, he considered that the Snatch Land Rover claims were not necessarily excluded, because major combat operations had ceased by the time of the relevant incidents [156, 186 188].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0250.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2012-0250.txt
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index 0000000000000000000000000000000000000000..8a917c10af9ee2c6e491f23c31f9549885bf1abe
--- /dev/null
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@@ -0,0 +1 @@
+Mr Georges first argument is that on its natural meaning, (i) revocation of a deportation order under s. 5(2) of the 1971 Act must reverse all the consequences of the order listed in s. 5(1), including therefore the invalidation of the leave to remain, and (ii) that the words shall cease to have effect in s. 5(2) govern both the citizenship and revocation possibilities in that subsection. However, neither point is compelling. The wording of the subsections does not provide a conclusive answer to the question in the appeal [10-11]. Importantly, the 1971 Act has consistently been treated as meaning that revocation does not revive prior leave to remain. Draft Immigration Rules which made this clear were prepared (and considered by Parliament) alongside the 1971 Act, and every subsequent version of the Immigration Rules has contained the same statement. Each version has been laid before Parliament. Likewise, successive editions of practitioner textbooks have taken the same position [12]. Revival of prior leave to remain is not the natural meaning of s. 5 of the 1971 Act. It is a significant and far-reaching legal concept, and it is likely that if intended, it would have been explicitly provided [29]. The treatment of s. 5(2) of the 1971 Act in successive Rules laid before Parliament clearly demonstrates that there was no legislative assumption that the effect of revocation of a deportation order was revival of prior leave to remain [30]. Mr Georges second argument was that other immigration statutes, particularly s. 76 of the 2002 Act, indicate that the proper interpretation of the 1971 Act is that revocation of a deportation order revives leave to remain. S. 76 provides a power for the Secretary of State to revoke ILR if a person is liable to deportation but cannot be deported for legal reasons. Mr George argued that this power would be superfluous if the making of a deportation order irrevocably cancelled ILR [13-14]. However, this is incorrect. While the legal impediment to Mr Georges deportation arose only after his deportation order was made, in other cases the legal impediment would be apparent prior to this point, and so the order would never be made. S. 76 provides a power for the Secretary of State to revoke ILR and instead provide for limited or conditional leave. In any event the only import of this argument goes to Parliaments intention when it passed the 1971 Act: the legislative history set out at [12] demonstrates that Parliament intended a deportation order irrevocably to extinguish prior leave to remain [16-18]. A number of arguments based on other statutes and situations were raised. Where an individual previously possessing ILR had been deported, that individual might need to return to the UK for a brief period. The Secretary of State would need to revoke the deportation order and make a fresh grant of conditional leave. It could not be right that in such a situation the previous ILR would revive, and this provided some limited support for the Secretary of States position. The Immigration (Leave to Enter and Remain) Order 2000 did not alter this conclusion, since the issue is the construction of the 1971 Act, and the problem existed prior to 2000 [19-21]. Mr George had based an argument on an analogy with s. 10 of the Immigration and Asylum Act 1999. However, that issue was not squarely before the court, and it would be wrong to determine its interpretation in the abstract [25-26]. The same was true of the UK Borders Act 2007 [27-28]. More fundamentally, it is wrong to reason from suggested scenarios under later Acts to the meaning of an earlier Act. Later statutes are not reliable guides to the meaning of earlier ones, particular in areas where there have been fast-moving changes to the legislation [30].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2013-0006.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2013-0006.txt
new file mode 100644
index 0000000000000000000000000000000000000000..f6afb6ea22096a29cd4cb5d76f47887f78b6a570
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2013-0006.txt
@@ -0,0 +1 @@
+It is an established principle of the common law of receivership that a court-appointed receiver may draw his remuneration and expenses to the assets placed by the court in his/her control. The receiver has a lien over those assets for that purpose [44]. That common law, together with the provisions of POCA and the Criminal Procedure Rules, provide amply clear and foreseeable authority for the making of such order, and Laws LJ was correct so to hold [83]. The critical question in this case is not foreseeability, but proportionality. Would it be disproportionate to order that the Receivers expenses be drawn from the companies? [87]. The taking of property without compensation is, in general, a disproportionate interference with A1P1 [88]. In this case the Group were neither defendants nor (as the Court of Appeal found) was there any reasonable cause for regarding the Group assets as those of the defendants at the time when it was made [89], [125-130]. Divesting the Group of its assets in that situation is disproportionate [94]. It is as if the assets of an innocent defendant were sought to be used to cover the costs of detaining and prosecuting him or her [92]. The Receivers application to recover his expenses from Eastenders Group therefore fails [96]. However, that conclusion would leave the court in an invidious position, since to leave the Receiver without recompense would violate his A1P1 rights [96]. The Receiver had, however, entered on his receivership pursuant to a letter of agreement with the CPS [98]. It was the mutual expectation of both the Receiver and the CPS that the Receiver would have a legally enforceable lien over the receivership property [99]. Unjust enrichment may cover a variety of situations. Failure of services at the request of another is capable of being regarded as enrichment, and it would be unjust if the receiver were not paid for the services which he provided [100-117]. Hence the receiver has a claim in unjust enrichment against the CPS [117]. The restraint and receivership orders were made in this case on an application at short notice. Applications by the CPS for such orders should be made as early as possible, with proper time estimates and reading lists, enabling the court to consider the necessary arrangements [118-119]. The fact that such applications are made ex parte places a special burden of candour on the CPS and considerable responsibility upon the court [120]. Failure to discharge the duty of candour could well be considered serious misconduct [121]. The court should always consider such applications carefully: making such orders should never be a rubber-stamping exercise. In certain cases, it could be appropriate to attach a Piggott condition to a receivership order providing that if property was shown not to be realisable property, the receivers costs should fall on the CPS [124].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2013-0023.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2013-0023.txt
new file mode 100644
index 0000000000000000000000000000000000000000..59498587a963dadd5f44b5e44fceee4d3a1b99f9
--- /dev/null
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@@ -0,0 +1 @@
+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].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2013-0036.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2013-0036.txt
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index 0000000000000000000000000000000000000000..b78d2097e38b13fafdb4e23ffe460e6c8cf54484
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2013-0036.txt
@@ -0,0 +1 @@
+The outcome of this appeal turns on the question whether Meds activities in relation to the provision of hotel rooms to customers fell within article 306.1(a) or article 306.1(b) of the Principal Tax Directive [20]. What article 306 means and how it is to be applied is a matter of EU law, a topic on which the decisions of the Court of Justice of the European Community (CJEU) are binding on national courts [22]. However, insofar as the provisions of article 306 depend upon the precise nature and character of the contractual relationship between two or more parties, that issue must be determined by reference to the proper law of the contract or contracts concerned [23]. The domestic law Where parties have entered into a written agreement which appears on its face to be intended to govern the relationship between them, in order to determine the legal and commercial nature of that relationship it is necessary to interpret the agreement in order to identify the parties respective rights and obligations, unless it is established that it constitutes a sham [31]. While it is not possible to take into account the subsequent behaviour or statements of the parties as an aid to interpreting their written agreement, this may be invoked for other reasons: (i) to support the contention that the written agreement was sham; (ii) to support a claim for rectification; (iii) to support a claim that the written agreement was subsequently varied, or rescinded and replaced by a subsequent contract; or (iv) to establish that the written agreement represented only part of the parties contractual relationship [33]. It is not suggested that either the Accommodation Agreement or the website terms is a sham or liable to rectification. Accordingly, one must start by characterising the nature of the relationship between Med, the customer, and the hotel, in the light of the Accommodation Agreement and the website terms (the contractual documentation). One must then consider whether this characterisation represents the economic reality of the situation, and, finally, one must determine the result of this characterisation under article 306 [34]. The contractual documentation makes it clear that, both as between Med and the hotelier, and as between Med and the customer, the hotel room is provided by the hotelier to the customer through the agency of Med. The customer pays the gross sum to the hotelier on the basis that the amount by which it exceeds the net sum is to be Meds commission as agent [36]. None of the provisions of the contractual documentation relied on by HMRC is inconsistent with Med acting as the hoteliers agent: they merely reflect the relative bargaining positions of Med and the hoteliers. They do not alter the nature of the relationship between Med, the hotelier and the customer [37]-[44]. The EU law It is clear from the guidance given by CJEU that the concepts of an intermediary and an agent are similar, as are the concepts of a person dealing in his own name and a principal [55]. In deciding whether article 306.1(a) or 306.1(b) applies, the approach laid down by the CJEU in order to determine whether a person such as Med is an intermediary is very similar to the approach applied in English law to determine whether Med was an agent [56]. For the same reasons that the contractual documentation supports the notion that Med was an agent, it also supports the conclusion that Med was an intermediary, and the economic reality does not assist a contrary view [57]. Once it has been decided that Med was the hoteliers agent in relation to the supply of accommodation to customers as a matter of English law, it follows, at least on the facts of this case, that it was an intermediary for the purpose of article 306.1 [58].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2013-0057.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2013-0057.txt
new file mode 100644
index 0000000000000000000000000000000000000000..681b2277ea0a67d64bd1209a8fdf4396833824a9
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2013-0057.txt
@@ -0,0 +1 @@
+(1) All members of the Court agree that the common law rule in Barker remains unaltered in Guernsey where the 2006 Act does not apply. [27-31]. Only 22.08% of IEGs loss is thus attributable to the period of the Midland insurance for which Zurich must answer [35]. (2) The defence costs are different. They would have been incurred in defending the claim whatever the total period of exposure by GGLCL. They were incurred with insurers consent, in defending a claim for damages for injury or disease caused during the Midland insurance period within the meaning of the main insuring clause. Under the rule in Fairchild, as applied in Trigger, mesothelioma is caused in any period in which exposure occurs which materially contributed to the risk of contracting mesothelioma [36-39]. (3) Had Guernsey had an equivalent to the 2006 Act, IEG would have been liable to Mr Carr for his full 100% loss whether it had exposed him to asbestos for actual 27 years or only for the 6 years of the Midland insurance cover. But it would be anomalous if Zurich had to answer for the full 100% loss without any defence or right of recourse. In this situation, the majority holds that, although Zurich must in the first instance answer for the full 100%, Zurich has equitable rights to contribution pro rata from any other insurer (such as Excess) able to contribute and, in respect of any period where there is no such insurer, from IEG itself. [42-54], [63] and [77-78]. The minority considers that Zurich is only liable to IEG in the first instance for 22.08% of the full loss [180-187]. (4) Lord Mances judgment also discusses the position under the Third Party (Rights against Insurers) Act 1930 had IEG been insolvent, and concludes that it is probable that Mr Carr would in such a case have been able to look to Zurich for his full 100% loss [97].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2013-0083.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2013-0083.txt
new file mode 100644
index 0000000000000000000000000000000000000000..860560bf743415775ba771db4e1b1506f1aa09e9
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2013-0083.txt
@@ -0,0 +1 @@
+Lord Reed sets out the principles governing review of a trial courts findings of fact [58-69]. The Extra Division was correct to identify that an appellate court can interfere where satisfied that the trial judge has gone plainly wrong, but it erred in concluding that this criterion was met in the present case [62]. Plainly does not refer to the degree of confidence felt by the appellate court that it would not have reached the same conclusion as the trial judge. What matters is whether the decision under appeal is one that no reasonable judge could have reached [62]; that the decision cannot reasonably be explained or justified [66-68]. Lord Glennie did not err in law; he clearly understood the critical issue under section 242(4)(b) to be whether the alienation was made for adequate consideration [22]. He was aware that an obligation on the part of NSL could only constitute part of the consideration for the sale if it was undertaken as the counterpart of the obligations undertaken by LGDC [25]. His opinion had understandably focused on the question on which the parties had joined issue, namely whether not when any obligation was taken to assume the LGDC debts [26]. Lord Glennie was entitled to accept Mr Lius evidence on this point [27]. Lord Reed rejects the criticisms made of Lord Glennies treatment of the evidence [29-57]. The fact that Lord Glennie was less impressed by the liquidators case than the Extra Division reflected a careful and nuanced assessment of the evidence, and an understanding of the commercial realities [29]. He had taken into account the various criticisms of Mr Lius evidence before concluding that his evidence was credible and reliable. The weight given to the material evidence was pre-eminently a matter for the Lord Ordinary, subject only to the requirement that his findings be such as might reasonably be made [57]. Before the Supreme Court, the parties accepted that no prejudice would be occasioned by remitting the question of expenses in the Outer House to the Lord Ordinary [72]. They are invited to make submissions as to the appropriate form of order [73].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2013-0158.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2013-0158.txt
new file mode 100644
index 0000000000000000000000000000000000000000..963ba55717489786037098fe5f58dc691138db3e
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2013-0158.txt
@@ -0,0 +1 @@
+Lord Sumption holds that the Regulations definition of establishment, which must be read as a whole, envisages a fixed place of business and business activity carried on there consisting in dealings with third parties, and not merely acts of internal administration [13]. For example, disposal of stock in trade would clearly satisfy the definition, but mere internal administration of the winding up including administration of remaining premises in the UK would not [14]. Olympic Airlines SA was not carrying on business activity at its head office on 20 July 2010 and did not therefore have an establishment in the UK at that date [16]. The requirement of showing at least some subsisting business with third parties is acte clair and so no reference to the Court of Justice of the European Union is necessary [16].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2013-0161.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2013-0161.txt
new file mode 100644
index 0000000000000000000000000000000000000000..aea7c80b6309756aa0352afae8e439ea1f745785
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2013-0161.txt
@@ -0,0 +1 @@
+Submissions of the parties The Secretary of State contended that the Court of Appeals decisions were right. At the time she applied for it, Ms Mirga was ineligible for income support because she was a person from abroad, and could not claim to be a worker as she was an A8 national who had not done 12 months employment and thus could not qualify under the A8 Regulations. Even if the A8 Regulations did not apply, the Secretary of State argued, Ms Mirga would not have been a worker under the EEA Regulations as she had not worked for 12 months before claiming income support [36]. In respect of Mr Samin, the Council contended that he was not a worker within the EEA Regulations because he is now incapable of work and had not worked for 12 months in the UK [37]. In response to these contentions, two arguments were raised on behalf of Ms Mirga and Mr Samin. The first argument rested on the Treaty on the Functioning of the European Union (the TFEU). Ms Mirga contended that, given her right to respect for family and private life under article 8 of the European Convention on Human Rights, and given that she had been a worker, albeit not for the requisite period under the A8 Regulations (or the EEA Regulations), she could not be removed from the UK; accordingly, she contended, her right of residence under article 21.1 of TFEU could not lawfully be cut back by restricting her right to income support as the Income Support Regulations purport to do [38, 41]. Mr Samin argued that refusal of housing assistance to him constituted unlawful discrimination contrary to article 18.1 of the TFEU because such assistance would have been accorded to a citizen of the UK or a qualifying member from another member state who was in the same position as Mr Samin [39, 42]. Ms Mirgas alternative argument was that, even if the Income Support Regulations could have the effect for which the Secretary of State contended, it would only be so if it could be shown that providing her with income support would be disproportionate i.e. if it would place an unreasonable burden on the UK social assistance system, and there has been no inquiry into that question [38, 58]. To much the same effect, Mr Samins alternative argument was that the refusal of housing allowance to him could only be justified if it could be shown that the grant of such an allowance would be disproportionate and there had been no inquiry into that question [58]. The first issue: do the domestic Regulations infringe the appellants TFEU rights? The right accorded to Ms Mirga by article 21.1 of TFEU is qualified by the words subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect. In the present case, the measures include the Accession Treaty and the 2004 Directive, and hence the A8 Regulations and the EEA Regulations respectively [43]. A significant aim of these measures was to ensure that EU nationals from one member state should not be able to exercise their rights of residence in another member state so as to become an unreasonable burden on the social assistance system. Further, any right of residence after three months can be subject to conditions, and EU nationals can be refused social assistance where appropriate [44]. Whether the Accession Treaty or the 2004 Directive applied, Ms Mirga has not done 12 months work in the UK, and therefore cannot claim to be a worker, and she is not a jobseeker, self-employed, a student or self-sufficient. Therefore she can be validly denied a right of residence in the UK and can be excluded from social assistance. Article 21.1 of TFEU therefore cannot assist her [45]. The article 18 right claimed by Mr Samin is limited to the scope of the Treaties, which means that it only comes into play where there is discrimination in connection with a right in the TFEU or another EU treaty. Further, the right is without prejudice to any special provisions contained in the Treaties. Therefore, Mr Samins argument fails for the same reasons that Ms Mirgas does [47]. Examination of recent judgments of the Court of Justice of the European Union (CJEU), especially Dano v Jobcenter Leipzig [2015] All ER (EC) 1 and Case C-67/14 Jobcenter Berlin Neukolin v Alimanovic clearly support this conclusion. [48-57] The second issue: the arguments based on lack of proportionality The argument that the determinations of the courts and tribunals below in relation to Ms Mirgas claim and Mr Samins claim were flawed because no consideration was given to the proportionality of refusing each of them social assistance is rejected. The judgments of the CJEU relied on by the appellants do not support the argument [58-66]. On the other hand, the judgment and reasoning in Dano, supported by the judgment in Alimanovic undermine the argument [66, 67, 71]. It is unrealistic to require an individual examination of each particular case, as is recognised by the jurisprudence from the CJEU [68]. Where a national of another member state is not a worker, self-employed or a student and had no, or very limited, means of support and no medical insurance, it would undermine the whole thrust of the 2004 Directive if proportionality could be invoked to entitle that person to have the right of residence and social assistance in another member state, save perhaps in extreme circumstances [69]. It would also place a substantial burden on a host member state if it had to carry out a proportionality exercise in every case where the right or residence or the right against discrimination was invoked [69]. Even if there is a category of exceptional cases where proportionality would come into play, Mr Samin and Ms Mirga do not fall into it [70].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2013-0243.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2013-0243.txt
new file mode 100644
index 0000000000000000000000000000000000000000..a7d27facbfd041d6b1ffa4f9f0d93b83ab4ba397
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2013-0243.txt
@@ -0,0 +1 @@
+Powers of questioning and search and inspecting, copying and retaining data on electronic devices - Article 8 ECHR Questioning and search under compulsion undoubtedly constitutes an interference with Article 8(1) ECHR [28]. As to justification under Article 8(2) ECHR, it is in accordance with the law as there are sufficient safeguards and controls against overbroad and arbitrary use of this power [45]. These include, for example, the restrictions on the location, duration and type of questioning and search, the requirement to permit consultation with a solicitor, the availability of judicial review and the supervision of the Independent Reviewer of terrorism legislation [43]. The fact that questioning does not require objective grounds for suspicion does not by itself mean that the safeguards are inadequate [44]. The power is also proportionate: (i) questioning and search at ports is rationally connected to the proper objective of Schedule 7, which is preventing and detecting terrorism [47]; (ii) to require reasonable suspicion before using the power would not achieve anything like the same utility in fighting the threat of terrorism [49]; and, (iii) it also represents a fair balance between the rights of individuals and the interests of community at large; the level of intrusion is comparatively light and not beyond the reasonable expectations of international travellers and the importance of preventing and detecting acts of terrorism can scarcely be overstated [48, 51]. There is also no substantial risk of these powers being used on a racially discriminatory basis. The statistics show that the exercise of Schedule 7 powers is proportionate to the terrorist population, considering the sources of the terrorist threat, that travels through UK ports [50]. Retaining electronic data is a considerable intrusion into the private life of an individual [57]. It may well be that retention longer than an initial inspection for a reasonable period can only be justified if there exist objectively established grounds for suspicion [58]. This power, however, was not used in the case of Mrs Beghal. Power to detain - Article 5 ECHR The power to detain for six hours falls within Article 5(1)(b) ECHR and involves a greater level of intrusion than questioning and search [52]. Nonetheless, restricting an individuals movement in order to exercise the questioning and search power, and for no more than is necessary, will either not be a deprivation of liberty or will be justified [54]. The better view is that detention beyond what is necessary to complete the process of questioning and search for example, for six hours can only be justified by objectively demonstrated suspicion [55]. However, in this case any deprivation of Mrs Beghals liberty was for no longer than was necessary for the completion of the process [56]. Privilege against self-incrimination - Article 6 ECHR Schedule 7 excludes privilege against self-incrimination as it is by necessary inference abrogated by the words of the statute [64]. Moreover, the risk of prosecution based on answers to Schedule 7 is not a real and appreciable one; in practice section 78 of the Police and Criminal Evidence Act 1984 (PACE) would inevitably render such evidence inadmissible. Article 6 ECHR would also compel the same result [65-66]. As port questioning and search is not part of a criminal investigation, the individual is not a person charged for the purposes of Article 6 ECHR so that Article 6 ECHR has no application [69]. Lord Kerr (dissenting) would find that the Schedule 7 powers are incompatible with Articles 5, 6 and 8 ECHR: (i) they are not in accordance with the law. The potential for arbitrary or discriminatory exercise of the powers is apparent from the Code of Practice [103-104]. Moreover, a crucial element of this requirement is to make it possible to examine whether the powers have been used proportionately. Where the Schedule 7 powers can be exercised without any suspicion whatsoever there is simply no material to judge whether they are being used proportionately [106]; (ii) the powers are greater than necessary to accomplish the aims; there is no evidence that such suspicion-less powers are the only way to achieve the goal of combatting terrorism and no reasoned justification has been given for granting examining officers such powers [122, 124]; (iii) a proper balance has not been struck between the rights of the individual and the interests of the community [126-127]. Lord Kerr further finds that the requirement to answer questions breaches an individuals common law privilege against self- incrimination and is incompatible with Article 6 ECHR. There is, inescapably, a real and appreciable risk of prosecution if answers to the questions posed prove to be self-incriminating [115].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2013-0266.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2013-0266.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e80b59cc3486eb44295b06ca47fe88eeb5ee874f
--- /dev/null
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@@ -0,0 +1 @@
+The right to respect for family life guaranteed by the ECHR includes the right of married couples to live together, but article 8 does not impose a general obligation on the part of a state to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country [25-26]. However, interference with the right must still be proportionate, striking a fair balance between the interests of the individuals and the community as a whole [29]: The six objectives of the Rule are intended to protect the interests of the economic well-being of the country or perhaps the protection of the rights and freedoms of others. Assisting the spouse or partners integration into British society at an early stage is undoubtedly an important and benign aim for which even a basic level of English language skills would be of some benefit. Evidence filed by the appellants casts doubt on the value of the test in getting the learner off to a flying start compared with the opportunities to learn after arrival, but the aim is legitimate and sufficiently important to justify interference with the article 8 right [30-45] There is a rational connection between the Rule and the aim it seeks to achieve. It will make a contribution to the overall aim of promoting integration [46] The Rule is no more than necessary to achieve this contribution [47-48] The impact of the pre-entry language requirement has not been systematically studied by the Secretary of State but it is obvious that at an individual level access to appropriate tuition and a test centre may prove such an obstacle that it amounts to an unjustified interference with their partners article 8 rights [50]. However, the problem lies not in the Rule itself but in the restrictive interpretation of exceptional circumstances in the Guidance which means there are likely to be a significant number of cases in which the present practice does not strike the fair balance required by article 8 [53-55]. The discrimination claim adds nothing to the claim under article 8: the exemption for nationals of Anglophone countries makes sense and direct discrimination on grounds of nationality could be justified under article 14 [56-59]. Accordingly, the Rule itself is not disproportionate. Lady Hale suggests that the appropriate solution to avoid infringements in individual cases would be to recast the Guidance to grant exemptions in cases where compliance with the requirement is simply impracticable, and one remedy might be for the court to declare that the present application of the Guidance is incompatible with the rights of individuals in such circumstances. Since this was not a remedy sought by the appellants the Court should invite further submissions before finally deciding the outcome of the appeal [55, 60]. Lord Hodge agrees that there is no basis for striking down the Rule and that the Guidance may result in a significant number of cases in which the article 8 rights of individuals will be breached, where, for example the cost is inordinate. He is not persuaded that a declaration relating to the Guidance is appropriate but is content to reach a concluded view after further submissions [61-76]. Lord Neuberger agrees that the Guidance seems bound to result in the infringement of article 8 rights in individual cases but that the Rule itself is not disproportionate, bearing in mind the wide measure of discretion which should be accorded to the executive in a case such as this and the research that was done in anticipation [98]. He is sympathetic to the proposed declaration relating to the Guidance but agrees that it would be wrong to make it without considering further submissions [104].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2013-0273.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2013-0273.txt
new file mode 100644
index 0000000000000000000000000000000000000000..af1d733f515ec65f9330a89a4dac64ecb61f5fbd
--- /dev/null
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@@ -0,0 +1 @@
+The words of section 27 of the 1988 Act are wide enough to cover local authority landlords as well as public landlords, even though local authority landlords rarely perpetrate unlawful evictions of their tenants [15]. Section 28(1) requires the court to make two valuations, namely (a) and (b), of the landlords interest [16]. Valuation (a) is based on the assumption that the tenant continues to have the same right to occupy the premises, and the landlord continues to be subject to the same restrictions on recovering possession, as before the eviction occurred. Valuation (b) is based on the assumption that the tenants right to occupy and the restrictions on recovering possession have ceased [17]. The issue in this case was whether the valuation of both the upstairs and downstairs flats at 19 Moresby Walk (for valuation (a)) and of the upstairs flat (for valuation (b)) should be conducted on the assumption that they were subject to secure tenancies or to assured tenancies [24]. The assumption of a sale on the open market (subsection 28(3)(a)) is for the purposes of the valuations at subsection 28(1), in which other assumptions are mandated, namely (a) that the tenant continues to have the same right to occupy the premises as he had immediately prior to the eviction and, alternatively, (b) that he has ceased to have that right [26]. Prior to eviction, Mr Loveridges right to occupy the downstairs flat was that of a secure tenant. The notional exercise required by subsection 28(3)(a) does not extend to making adjustments to the nature of the tenants rights that are consequent upon sale. Such adjustments are barred by subsection 28(1)(a) which stipulates that the same right continues [27]. The likely effect upon a secure tenancy of a sale to a private landlord should not therefore be taken into account [28].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2014-0023.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2014-0023.txt
new file mode 100644
index 0000000000000000000000000000000000000000..c9cf1d5dfa1cfd54720bbf4705be74a9edf663f3
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2014-0023.txt
@@ -0,0 +1 @@
+Declaratory relief Lord Toulson rejects Mr Hunts argument that the Court of Appeal should have made a declaration of its own initiative. The judgment of the Court of Appeal itself contained a ruling that the Council acted unlawfully and the authority of its judgment would be no greater or less by making or not making a declaration in the form of the order to the same effect. A court is not required to make declaratory orders where, although a finding of illegality has been made, it is not asked to make a declaratory order by a partys experienced legal representatives [12]. Costs In relation to costs, although courts have wide discretion in this matter, the Court of Appeal fell into error by treating the Council as the successful party. As the Court of Appeal rejected the Councils case on the two issues, it was only successful in the limited sense that the findings of failure came too late to do anything about what had happened in the past, although this occurred through no fault on Mr Hunts part. It was unsuccessful on the substantive issues regarding its statutory responsibilities [15]. Indeed, the Court of Appeal judgment contained a lesson of general application for local authorities regarding the discharge by committee members of the Councils equality duty. In such circumstances, where a local authority is shown to have acted unlawfully, some good reason would have to be shown why a claimant should not recover his reasonable costs [16]. Despite this, the reasons for limiting Mr Hunts order for costs in his favour in this case are that: he raised issues much wider than the issues on which he was given permission to appeal and which required detailed rebuttal; and, he persisted in seeking an unrealistic remedy a quashing order [17]. Consequently, the Court of Appeals order should be set aside and substituted with an order that Mr Hunt recover two thirds of his costs both in the High Court and in the Court of Appeal [18]. As to costs in this Court, although Mr Hunt is entitled to his reasonable costs, having succeeded in reversing the costs orders made by the courts below, a significant proportion of his argument was directed to the question of a declaration. This had no merit. Therefore, Mr Hunt should recover two thirds of his costs subject to either party making written submissions as to why a different order should be made [19].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2014-0073.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2014-0073.txt
new file mode 100644
index 0000000000000000000000000000000000000000..3675c4873a2d55aa2c0f60e79110d2a3948506b2
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2014-0073.txt
@@ -0,0 +1 @@
+Ground (1): That the present situation might not have been foreseen by the legislature is not a reason for reading into clear legislation a specific exemption which would not reflect the scope of any exemption in EU law, especially when the foreign state could have invoked state immunity but did not do so in time [24, 25]. The USAs first submission is rejected [26]. Ground (2): Jurisdiction is primarily territorial in both international and domestic law [29-30]. TULCRA regulates the procedures for dismissal on the grounds of redundancy of employees at institutions in England, Wales and Scotland. The UK is not legislating extra-territorially when it covers proposals or decisions about domestic redundancies developed or taken abroad [31]. TULCRA contains no exception for such cases. The USAs submission would render largely otiose the procedures and time for a plea of state immunity. State immunity is an adjudicative bar separate from a foreign states underlying responsibility. The USAs case elides two distinct principles. [35-38]. This appeal concerns situations covered by TULCRA but falling outside EU law, so the USA cannot rely on EU law as entitling it to protection from discrimination [45]. Further EU law does not protect third country nationals from discrimination or therefore non-member states [46-47]. The USAs second submission is therefore also rejected [47]. Ground (3): The power conferred under s.2(2) of the 1972 Act to make delegated legislation for the purpose of dealing with matters related to any obligation of the United Kingdom under EU law envisages a close link between the content of any such legislation and the relevant obligation [61]. While each case must be considered on its merits, the domestic extension of an EU regime into areas outside or specifically excluded from that regime may well fall outside s.2(2) [66]. In the present case, however, Parliament had by its original enactment of TULCRA established a unified domestic regime drawing no distinction between different parts of TULCRA within or outside the EUs internal market competence. In these unusual circumstances, Parliament could be taken to have created for the domestic purposes of s.2(2) of the 1972 Act a relationship which the Secretary of State was entitled to take into account and continue by and in the 1995 Regulations [72]. The submission that the 1995 Regulations went beyond the Secretary of States powers in protecting employees of public administrative establishments without trade union representation would therefore also be rejected [77-73]. Lord Carnwath (dissenting) considers that the relationship between TULCRA and the Directive created by domestic statute has no obvious relevance to the purpose of the 1972 Act [94-95]. Some limitation is necessary to ensure that the power to legislate outside the normal parliamentary process is kept within bounds [96]. Lord Carnwath would dismiss the appeals on the first two issues, but allow the appeal on the third issue [100-101]. the Courts decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available at: http://supremecourt.uk/decided-cases/index.html
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2014-0079.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2014-0079.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e077bec53c2847268954a2a2c0eef0d17fbb73fa
--- /dev/null
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@@ -0,0 +1 @@
+Lord Reed notes that it was conceded that the Regulations result, indirectly, in differential treatment of men and women in relation to welfare benefits, and that the benefits constitute possessions falling within A1P1. [60-61] The question is whether the cap is a proportionate means of meeting legitimate aims. Lord Reed accepts that the aims of the cap are legitimate. [63-66] In relation to proportionality, the appellants argued that the aim of setting a reasonable limit to benefits could be achieved by setting the cap at the average income of working households inclusive of in- work benefits, rather than their average earnings exclusive of benefits. Lord Reed notes, however, that the Act requires the cap to be set by reference to earnings. [67-69] The appellants also argued that the savings in public expenditure were marginal. Lord Reed notes that, although the short-term savings are a small proportion of the total welfare budget, they nevertheless contribute towards deficit reduction. The cap is also intended to change behaviour over the longer term. Other arguments focused on the impact of the cap on the families affected. Lord Reed notes that the cap for households with children is equivalent to a gross annual salary of 35,000, which is higher than the earnings of half of the UKs working households. Whether the cap should be higher is a political question. It is not the function of the courts to determine how much public expenditure should be devoted to welfare benefits. Importantly, affected households were given advance notice and assistance to enable them to adjust. [70-75] The differential impact results from including child-related benefits in the cap. Excluding these would reduce savings by 80-90% and compromise the achievement of the caps legitimate aims. No credible means were suggested by which those aims might be achieved without affecting more women than men. [76-77] Other arguments relied on the United Nations Convention on the Rights of the Child (UNCRC), which has not been incorporated by Parliament into UK law, but which can be relevant to the application of the ECHR. Strasbourg cases do not support the argument that the cap impinges on the article 8 ECHR rights of children, and that therefore article 3(1) UNCRC obliged the Government to treat the best interests of children as a primary consideration. [78- 80] Although the UNCRC can be relevant to questions concerning the rights of children under the ECHR, the present context is one of alleged discrimination against women in the enjoyment of their A1P1 property rights. [86- 89] The argument that the Regulations were vitiated by the Governments misinterpretation of article 3(1) was no stronger. It is firmly established that UK courts cannot interpret or apply treaties to which Parliament has not given effect. [90] Lord Reed further reasons that the question of proportionality involves controversial issues of social and economic policy, with major implications for public spending. It is therefore necessary for the court to give due weight to the considered assessment of democratically-elected institutions. Unless manifestly without reasonable foundation, their assessment should be respected by the court. Many of the issues in the appeal were considered by Parliament before it approved the Regulations. The Governments view, endorsed by Parliament, that achieving its aims was sufficiently important to justify making the Regulations, despite the differential impact on men and women, was not manifestly without reasonable foundation. [92-96] Lord Hughes adds that Strasbourgs case-law is a long way from saying that article 3(1) is relevant to justification of any kind of discrimination, whether or not the rights, upbringing, or family life of a child are affected. [144] Lord Carnwath agrees that article 3(1) UNCRC has no role in justifying discrimination against women: the treatment of the child does not depend on the sex of their parent. [129] It is trite law that unincorporated treaties like the UNCRC have no direct effect in domestic law unless and until incorporated by statute. [115] On compliance with article 3(1), he reasons that the Governments reliance on limiting expenditure and the need for a clear upper limit on benefits ignores the distinctive statutory purpose of child-related benefits: to meet the needs of children as individuals. The cap means children lose these benefits for reasons unrelated to their own needs. If excluding those benefits emasculates the scheme, this raises questions about the viability of a scheme so dependent on child-related benefits. However, though the Secretary of State failed to show how the Regulations comply with article 3(1), it is in the political, rather than the legal, arena that the consequences should be played out. [123-127, 133] Lady Hale, in her dissenting judgment, reasons that the question is whether the legitimate aims of the cap justify the discrimination involved in its implementation. [189] The manifestly without reasonable foundation test applies to both the aims of the interference with property rights, and the proportionality of the discriminatory means employed. [209] The UNCRC has not yet been generally translated into domestic law, but Strasbourg case-law shows that article 3(1) UNCRC is relevant to proportionality and discrimination as well as informing the substantive content of Convention rights, even in cases where the discrimination is not against the children but their mothers. [215-222] What has to be considered is whether the benefit cap as it applies to lone parents can be justified independently of its discriminatory effects. In considering that, it is necessary to ask whether proper account has been taken of the best interests of the children affected, i.e. whether the Government complied with article 3(1). It is clear to Lady Hale that it did not. The cap deprives some children of provision for their basic needs, which cannot be in their best interests. It does so in order to incentivise their parents to seek work, but discriminates against lone parents, who are least likely to be able to do so. [223-226] In light of article 3(1), the indirect sex discrimination inherent in the caps implementation is not a proportionate way of achieving its aims. [228] Lord Kerr, in his dissenting judgment, considers that the UNCRC can be directly enforceable in domestic law. [255- 256] He further reasons that a mothers personality is defined not simply by her gender but by her role as carer for her children, so that justification of a discriminatory measure must directly address the impact on the children of lone mothers. [264-265]
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2014-0087.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2014-0087.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e1418fc01b01a28a619749db24dd8cea523f905e
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2014-0087.txt
@@ -0,0 +1 @@
+The close connection test has been followed at the highest level [42] and there is nothing wrong with it as such [46]. In the present case, the court has to consider two matters. First, the court must ask what function or field of activities has been entrusted by the employer to the employee (i.e. what was the nature of his job). This is to be viewed broadly [44]. Second, the court must decide whether there was a sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable [45]. Applying that test here, it was Mr Khans job to attend to customers and respond to their inquiries. His conduct in responding to the Claimants request with abuse was inexcusable, but interacting with customers was within the field of activities assigned to him by his employer. What happened thereafter was an unbroken sequence of events. The connection between the field of activities assigned to Mr Khan and his employment did not cease at the moment when he came out from behind the counter and followed the Claimant onto the forecourt. There are two reasons to draw this conclusion. First, it is not correct to regard Mr Khan as having metaphorically taken off his uniform the moment he stepped out from behind the counter - he was following up on what he said to the Claimant. Secondly, when Mr Khan followed the Claimant to his car and told him not to come back to the petrol station, that was not something personal between them, but an order to keep away from his employers premises. In giving the order he was purporting to act about his employers business [47]. Mr Khans motive in the attack is irrelevant. It does not matter whether he was motivated by personal racism rather than a desire to benefit his employers business [48]. Lord Dyson agrees with the reasons given by Lord Toulson [57] and emphasises that the close connection test is the correct test to apply [53].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2014-0089.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2014-0089.txt
new file mode 100644
index 0000000000000000000000000000000000000000..fa943aba6dd4f7cafb48c7e2969c2bfd323e6e74
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2014-0089.txt
@@ -0,0 +1 @@
+Lord Reed gives guidance on the sort of relationship which may give rise to vicarious liability. In Various Claimants v Catholic Child Welfare Society [2012] UKSC 56, (the Christian Brothers case), Lord Phillips mentioned five factors which make it fair, just and reasonable to impose vicarious liability on a defendant, where the defendant and the tortfeasor are not bound by a contract of employment [19]. Lord Reed explains that these five factors are not equally significant. The first factor, that the defendant is more likely to have the means to compensate the victim and can be expected to have insured against vicarious liability, is unlikely to be of independent significance in most cases [20]. The fifth factor, that the tortfeasor will have been under the control of the defendant, no longer has the significance it was sometimes considered to have. In modern life, it is not realistic to look for a right to direct how an employee should perform his duties as a necessary element in the employment relationship [21]. The remaining three factors are inter-related. These are (1) the tort will have been committed as a result of activity being taken by the tortfeasor on behalf of the defendant; (2) the tortfeasors activity is likely to be part of the business activity of the defendant; and (3) the defendant, by employing the tortfeasor to carry on the activity, will have created the risk of the tort committed by the tortfeasor [22]. A relationship other than one of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the defendants business and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to that individual [24]. The general approach described in Christian Brothers is not confined to a special category of cases, but provides a basis for identifying the circumstances in which vicarious liability may in principle be imposed outside employment relationships. It extends the scope of vicarious liability beyond the responsibility of an employer for the acts and omissions of its employees in the course of their employment, but not to the extent of imposing such liability where a tortfeasors activities are entirely attributable to the conduct of a recognisably independent business of his own, or of a third party. This enables the law to maintain previous levels of protection for the victims of torts, despite changes in the legal relationships between enterprises and members of their workforces which may be motivated by factors extraneous to the enterprises activities or attendant risks [29]. The defendant need not be carrying on activities of a commercial nature. The benefit which it derives from the tortfeasors activities need not take the form of a profit. It is sufficient that there is a defendant carrying on activities in the furtherance of its own interests. The individual for whose conduct it may be vicariously liable must carry on activities assigned to him by the defendant as an integral part of its operation and for its benefit. The defendant must, by assigning those activities to the tortfeasor, have created a risk of his committing the tort [30]. A wide range of circumstances can satisfy those requirements, and defendants cannot avoid vicarious liability on the basis of arguments about the employment status of the tortfeasor [31]. Prisoners working in kitchens are integrated into the operation of the prison. The activities assigned to them form an integral part of the activities the prison carries on in the furtherance of its aims, in particular the provision of meals to prisoners. The fact that these aims serve the public interest is not a bar to the imposition of vicarious liability. The prison service places these prisoners in a position where there is a risk that they may commit a variety of negligent acts in carrying out assigned activities, which is recognised by the provision of health and safety training. The prisoners work under the direction of prison staff. Mrs Cox was injured as a result of Mr Inders negligence in carrying on activities assigned to him, and the prison service is therefore vicariously liable to her [32]. The MOJs arguments that requiring prisoners to work serves the purpose of rehabilitation and that the prisoners have no interest in furthering the objectives of the prison service are rejected. Rehabilitation is not the sole objective. Penal policy also aims to ensure that convicted prisoners contribute to the cost of their upkeep. When prisoners work in the prison kitchen they are integrated into the operation of the prison, and their activities are of direct and immediate benefit to the prison service itself [34]. The fact that a prisoner is required to undertake work for nominal wages binds him into a closer relationship with the prison service than would be the case for an employee, and strengthens the case for imposing vicarious liability [35]. Payment of a wage is not essential for the imposition of vicarious liability [37]. Nor is it necessary for the prison to have an unrestricted pool from which to select a workforce. The prisoners who work in the kitchen are selected with particular care, having regard to the risks involved [38]. In cases where the criteria set out in Christian Brothers are satisfied, it should not generally be necessary to re-assess the fairness, justice and reasonableness of the result. The criteria are designed to ensure that vicarious liability is imposed where it is fair, just and reasonable to do so [41].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2014-0094.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2014-0094.txt
new file mode 100644
index 0000000000000000000000000000000000000000..5a192693a1b7665fb1576d9185e31fd5e3411fea
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2014-0094.txt
@@ -0,0 +1 @@
+The Complaints Commissioners power to investigate the complaint were derived from article 8 of the Commissioner for Complaints (Northern Ireland) Order 1996, which deals with complaints against individuals, like the GP in this case, providing professional services under contracts or other consensual arrangements with the NHS [11]. The short answer to this appeal is that the Complaints Commissioner may not, under article 9 of the 1996 Order, carry out any investigations in respect of which the complainant has a remedy by way of proceedings in a court of law, unless it is not reasonable to expect the complainant to resort to law. The widow had such a remedy but the Commissioner proceeded with the investigation because she said that she only wished to find out what had gone wrong (and not to obtain money). It was not open to the Commissioner, having proceeded on that basis, to recommend a payment to her [17]. More generally, the Complaints Commissioner does not have the power to recommend monetary redress against individuals in investigations under article 8. This is because his recommendations are not binding as a matter of private law, and a private individual such as a GP has no relevant duties in public law. Furthermore, a private individual has no means of effectively challenging the Commissioners findings on the merits of the case before a court [20, 24]. Nor does the Complaints Commissioner have a power to make a special report in default of payment. Whilst the Parliamentary Commissioner and Assembly Ombudsman for Northern Ireland have such a power as against departments or public bodies that have been ordered to provide financial redress, the Complaints Commissioner does not. This is because the Commissioners relationship with the legislature is different to that of other statutory ombudsmen in the United Kingdom. The Commissioner is not an officer of the legislature, unlike the Assembly Ombudsman for Northern Ireland, but receives complaints from and reports to the complainant and individuals or bodies whose conduct is at issue. He has no powers of compulsion, and limited powers to use information discovered during investigations for the purposes of enforcement [20-21, 26-28]. Article 19 of the 1996 Order is concerned with the presentation of annual reports before the Assembly, and not reports on individual cases such as this [29]. Lord Sumption further comments on the substance of the Commissioners recommendation that the GP pay 10,000 to the widow. A monetary recommendation must be rational and capable of explanation. The figure in the Commissioners report appears to have been plucked out of the air: it does not offer a coherent explanation or calculation, or identify the precise failings in respect of which it was made [30].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2014-0110.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2014-0110.txt
new file mode 100644
index 0000000000000000000000000000000000000000..528e1068ddb5a17716935b4315c7b62125d0de99
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2014-0110.txt
@@ -0,0 +1 @@
+Against the background of the other relevant provisions of ICTA [18], the court concludes that section 103 does not contain an implicit restriction so that the charge to tax on post-cessation receipts falls only on the former trader whose trade was the source of the income [19]. There are three reasons in support of this conclusion: First, there is nothing in the wording of section 103(1) or (2) which necessitates such implication. The charge to tax is clear: where a trade has been permanently discontinued, corporation tax shall be charged on sums arising from the carrying on of the tradeduring any period before the discontinuance. Section 103(1) required only that the sums are received after the discontinuance; it specified the source of the sums falling within the charge but imposed no further restriction [20]. Secondly, section 103 was designed to catch the fruit of the trade. Its aim was to make sure that sums which a person received, which arose from a discontinued trade and which were not otherwise taxed, were brought into a charge to tax. No sound policy reason has been suggested for confining the charge to the former trader and his personal representatives [21]. Thirdly, the neighbouring provisions of section 103 drew a distinction between the person chargeable to tax and the person who had previously carried on the trade. This suggests that the former was not confined to the latter [22-23]. The court rejects SDGs submission that the sum it received equivalent to the VAT Repayment did not have a former trade as its source, but was the result of an intra-group arrangement which was either a transfer for no consideration of that sum, or a transfer for no consideration of the rights to the VAT Repayment. Under section 103 of ICTA, the focus was on the original source of the receipt; the arrangements within the Group as to the specific company that was to receive the VAT Repayment did not alter that original source [24]. Section 106 of ICTA also supports a wider interpretation of the scope of the section 103 charge to corporation tax: section 106(1) quantifies the section 103 charge at the amount of the consideration or the market value of the rights to such sums when the former trader transfers its rights to those future receipts for value and the subsection imposes the charge on the former trader [25]; and section 106(2) disapplies section 103 and substitutes another Case of Schedule D only if the transferee company is carrying on the continuing business when it receives the fruits of the trade which is deemed to have been discontinued [26]. Applying this analysis of sections 103 and 106 of ICTA to the facts of this case, the court concludes that the Groups affairs were organised such that the VAT Repayment was received by SDG as beneficial owner, receiving sums arising from the carrying on of the trade of the companies making relevant supplies during periods before the discontinuance and the sums were not otherwise chargeable to tax. The VAT Repayment accordingly is subject to a charge to corporation tax in the hands of SDG [28-31].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2014-0138.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2014-0138.txt
new file mode 100644
index 0000000000000000000000000000000000000000..38ccf1b08d1f8d5583be752767641164343a872f
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2014-0138.txt
@@ -0,0 +1 @@
+The power found in s 60 is one of the few instances where Parliament has decided that stop and search powers without reasonable grounds to suspect the commission of an offence are necessary for the protection of the public from terrorism or serious crime. It was common ground in the appeal that the power interferes with the right to respect for private life but that it pursues a legitimate aim which is capable of justification under article 8(2). The issue was whether it also satisfied article 8(2) by being in accordance with the law [3]. S 60 is directed towards the risk of violence involving knives and other offensive weapons in a particular locality. It depends on an authorisation by an officer of the rank of inspector or above, who reasonably believes that incidents involving serious violence may take place in any locality in his police area, and that an authorisation of up to 24 hours (renewable once) is expedient to prevent their occurrence by allowing stops and searches in order to discover offensive weapons. The exercise of the powers is subject to numerous safeguards and restrictions in the Police and Criminal Evidence Act 1984, the Code of Practice and the Standard Operating Procedures of the Metropolitan Police. Failure to comply with these safeguards renders the exercise of compulsory powers which interfere with individual freedom unlawful [7, 28-37]. The authorisation made on 9 September 2010 followed police intelligence reports indicating a risk of further violence in connection with rival gangs. When PC Reid attended the incident she considered that the appellant was holding her bag in a suspicious manner, and her experience was that it was not uncommon for women of a similar age to carry weapons for other people. She therefore conducted a search of the appellants bag exercising the s 60 power, and provided the appellant with a form explaining these reasons [10-13]. This is the first challenge to the s 60 power to come before the court. Previous case-law concerning similar stop and search powers establishes that some but not every suspicion-less power would fail the requirement of lawfulness under the ECHR. It is often important to the effectiveness of the powers that they be exercised randomly and unpredictably. The question is whether the legal framework permits the court to examine the propriety of the exercise of the power [15-26]. Whatever the scope of the power, it must be operated in a manner which is compatible with the ECHR rights of any individual and be free of discrimination [42]. These constraints, together with disciplinary sanctions against police officers, guard against the risk that the s 60 power will be exercised when the officer does not in fact have good reasons for the decision [43]. The requirements attaching to the authorisation [44], the operation [45] and the actual encounter on the street [46], in particular the requirement to give reasons, should make it possible to judge whether the action was necessary in a democratic society for the prevention of disorder or crime. The law itself is not incompatible with article 8 [47]. Accordingly, a declaration under the Human Rights Act should not be made. Nor should there be a declaration that the guidance current at the time was inadequate or that the particular search of the appellant was not in accordance with the law [48].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2014-0159.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2014-0159.txt
new file mode 100644
index 0000000000000000000000000000000000000000..c525a278a1543f0a83bea11e84bc15962375ea67
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2014-0159.txt
@@ -0,0 +1 @@
+Section 106 of the 1984 Act gives a right to compensation to a person who has sustained damage by reason of the exercise of the authoritys powers under the Act in relation to a matter as to which he has not himself been in default. This requires firstly, identification of the matter in relation to which authority has exercised its powers, and secondly, consideration of whether that is a matter as to which the claimant has been in default [25]. The relevant power is the power to take emergency action under section 78 of the 1984 Act, and the claim for compensation is limited to the period from the date of the Councils emergency closure of the pier until the court order in September 2006 [26]. The matter which led the Council to take such emergency action was identified in the letter sent by the Council to the tenants at the time, which was the state of the pier combined with fear of possible collapse from crowd-loading during the events planned for that month, in particular the risk of overloading in an emergency evacuation. The trigger was not the general state of the pier or the specific repairs identified in the report commissioned by Stylus. Whatever Stylus position towards its clients and employees, it was not in default as to the matter which led to the Councils exercise of its section 78 powers, and on this basis, Manolete is entitled to succeed in its claim for compensation [27-8]. Although not strictly necessary to determine the present appeal, Lord Carnwath addresses the issue of whether default in section 106 is limited to default under the 1984 Act itself, as this may impact on future cases. Lord Carnwath finds that the legislative history and the authorities under the predecessor statutes support the conclusion that the default is not limited to the particular provisions of each statute, but extends to other forms of legal default. Concerns as to the wide scope of the factual inquiry do not arise if the inquiry is limited to the two-stage assessment set out above [30-5]. The Court of Appeals conclusion that the Council had no defence in principle to the claim for compensation was correct, not because, as they so held, there was no default under the 1984 Act, but because it was not Stylus default which led to the Councils emergency action [36]. Lord Carnwath emphasises that this does not limit the issues which can be taken into account by the arbitrator in assessing the level of compensation payable. The arbitrator may take account of Stylus statutory and common law responsibilities to its clients and employees, the structural condition of the pier and the implications it would have had for the continuation of business quite apart from the effects of the emergency action [37].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2014-0231.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2014-0231.txt
new file mode 100644
index 0000000000000000000000000000000000000000..8ccf9f679b89049bce9764bd3aa6f0d9ef6161a2
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2014-0231.txt
@@ -0,0 +1 @@
+The flag protests presented the Police Service of Northern Ireland with enormous, almost impossible difficulties [1]. There can be no suggestion that they failed to treat them with sufficient seriousness. This case is not about the sincerity and authenticity of those efforts, it is about whether, corporately, the police were sufficiently aware of the full range and scope of the powers available to them [3]. The police have a duty, under the general law, to prevent the commission of offences. Participating in an un-notified parade is a criminal offence under the 1998 Act and as such the police therefore had the power to prevent the parades. The police failed properly to appreciate this, instead believing that they only had a power to prevent the commission of general public order offences [10]. The police were not required to form a judgment as to whether a parade should take place, but they were required to decide whether the parade was taking place legally. Failure to notify a proposed parade strikes at the heart of the effective functioning of the Parades Commission and therefore at the successful implementation of the 1998 Act. This Act represented a paradigm shift away from the old system where police were drawn into the controversial role of deciding which parades should be permitted to take place and under what conditions they should be allowed to proceed [63]. The police failed to recognise that the integrity of the system depended on the enforcement of the requirement to notify an intention to hold a parade [64]. It is the police, not the Parades Commission, who have the responsibility for preventing un-notified parades from taking place [45]. The police mistakenly believed that they were obliged by article 11 of the European Convention on Human Rights (freedom of assembly and association) to facilitate peaceful protests, even though they thought the protests were technically illegal. To the contrary, they had an inescapable duty to prevent, where possible, what were plainly illegal parades from taking place and to protect those whose rights under article 8 of the European Convention (respect for private life) were in peril of being infringed, subject to operational constraints. In general, a decision to disperse a parade or protest which has not been lawfully notified will not infringe article 11. There was no warrant for allowing article 11 considerations to determine how the parades should be policed [60-62]. The High Court was therefore right to conclude that the police laboured under a misapprehension as to the extent of their powers [70]. The polices policy did not, however, have the intention or the effect of undermining the 1998 Act [66]. The police had an operational discretion in deciding how to respond to the parades. Discussion of what action might have been taken had the police properly understood the limits of their powers is unlikely to was unhelpful [74]. Difficulties in making policing decisions should not be underestimated, especially since these frequently require to be made in fraught circumstances [76]. The absence of a more proactive approach was not caused by police inertia, but by a concatenation of unfortunate circumstances, including misunderstandings about the powers available to them [77].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2015-0057.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2015-0057.txt
new file mode 100644
index 0000000000000000000000000000000000000000..b6b3e5edc22bffde2baeb895506244a8d587a779
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2015-0057.txt
@@ -0,0 +1 @@
+The principal issues to be decided were (i) whether the ITCs in principle could make out a claim in unjust enrichment against the Commissioners, (ii) whether such a claim was excluded by the statutory scheme under s.80 and (iii) whether the lack of any such claim was incompatible with EU law. The extent of the Commissioners enrichment was limited to the notional 75 which they received from the Managers. It did not include the notional 25 which the Managers retained as an input tax credit, because that was not an amount which the Commissioners owed to the Managers: it was only deductible from output tax that was properly due [25-31]. As to whether the Commissioners enrichment was at the expense of the ITCs, there has been uncertainty surrounding the approach to be adopted. It would be unwise to attempt a definitive statement of the circumstances in which the at the expense of requirement would be satisfied, but as a general rule it will be satisfied where there is a direct transfer of value from the claimant to the defendant, and in situations equivalent to direct transfers, for example where an agent is interposed, or where a series of coordinated transactions can be treated as a single transaction. A further situation where the requirement is satisfied is where the claimant discharges a debt owed by the defendant to a third party. The possibility of genuine exceptions to a direct provision rule should not be ruled out, but beyond direct transfers of value, or equivalent situations, it is generally difficult to maintain that the defendant has been enriched at the claimants expense. For there to be a transfer of value, the claimant must incur a loss through the provision of the benefit: incidental benefits alone cannot constitute a transfer of value [32-66]. In the present case there is no direct transfer of value, or equivalent situation. The ITCs payment to the Managers became part of the Managers general assets, and was not impressed with a special purpose trust, while the Managers VAT liability to the Commissioners arose independently of whether the ITCs actually paid VAT. The two transactions are separate and cannot be collapsed into a single transfer of value from the ITCs to the Commissioners [67-74]. Even if the ITCs had in principle been able to make out a claim in unjust enrichment, such a claim would have been excluded by s.80. The statute creates an exhaustive code of remedies not just for suppliers who have accounted to the Commissioners, but for the ultimate consumers as well. This is because it set out arrangements for the supplier to reimburse the consumer, subject to a limitation period, removing the need for the consumer to have a direct remedy against the Commissioners. Parliament cannot have intended this scheme for reimbursement of consumers to exist concurrently with non-statutory liabilities that would be inconsistent with the rationale of the statutory scheme [75-88]. The application of the statutory scheme in the present case is compatible with EU law. The European Court of Justice has accepted that in principle, a system under which only the supplier is entitled to seek reimbursement of VAT from the tax authorities, and the consumer can seek restitution from the supplier, meets the requirements of EU law. In cases where the reimbursement of the consumer by the supplier would be impossible or excessively difficult, the principle of effectiveness would require that the consumer be able to bring a claim directly against the tax authorities. That was not the case here, and it would not be appropriate to consider what the position would be in a hypothetical case where a supplier was insolvent [89-94].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2015-0063.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2015-0063.txt
new file mode 100644
index 0000000000000000000000000000000000000000..38ca1a8d0cc9444d376f56be872a52cb27bc233e
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2015-0063.txt
@@ -0,0 +1 @@
+The 1978 Act renders a foreign state immune from the jurisdiction of a UK court in a claim based on the foreign states employment of the claimant, where the claimant either: (i) at the time of the contract, was neither a UK national nor UK resident; or (ii) works for the foreign states diplomatic mission. Section 4(2)(b) confers immunity in the first category; section 16(1)(a) confers immunity in the second [1, 11]. Article 6 of the ECHR confers a right of access to a court to determine disputes, although that right is not absolute [14]. The Claimants argued that the relevant provisions of the 1978 Act were incompatible with EU law and with Article 6 of the ECHR, because they prevented access to a court in circumstances where this result was not required by international law. The Secretary of State argued (i) that a courts recognition of state immunity can never amount to an infringement of article 6, because it only reflects the courts lack of jurisdiction over a foreign state, but (ii) that in any event the relevant provisions of the Act were consistent with international law or at least with a tenable view of international law. [29-30, 34-35]. The test was whether the relevant provisions of the Act were consistent with international law, not whether there was a tenable view to that effect. These provisions were not consistent with international law. A court may identify a rule of customary international law only if enough states follow a consistent practice, on the footing that it is a legal obligation [31]. The Secretary of State argued that although states now recognise a more restrictive doctrine of state immunity, the immunity is still absolute unless there is sufficient international consensus to show that Libya and Sudan fall into any established exception to that absolute immunity [33]. This Court rejects those arguments, which mischaracterise the historical development of the restrictive doctrine of immunity. Specifically: (i) while there is a long-standing consensus of states in favour of immunity there has probably never been sufficient international consensus for an absolute rule of state immunity in customary international law; (ii) the only consensus that there has ever been about the scope of state immunity is the relatively recent consensus in favour of the restrictive doctrine; (iii) that restrictive doctrine emerged after a re-examination of the true basis of the doctrine, rather than by creating exceptions to any general rule of absolute immunity [40-52]. In customary international law, a foreign state is immune where a claim is based on sovereign acts. Whether a foreign states employment of a claimant constitutes a sovereign act depends on the nature of that employer-employee relationship. That will, in turn, depend primarily on the functions which the employee is employed to perform. The employment of purely domestic staff in a diplomatic mission is a private act, rather than an inherently sovereign act. That approach is supported by the reasoning in case law from the United States, France, and the European Court of Human Rights [53-56]. Under section 4(2)(b) of the Act, whether a foreign state is immune depends entirely on the nationality and residence of the claimant at the date of the employment contract. That section draws no distinction between acts of a private nature and acts of a sovereign nature. That approach to state immunity is followed by some states but lacks any basis in customary international law [64-66]. A persons nationality and residence at the date of the employment contract are not proper grounds for denying a person access to the courts in respect of their employment in this country [67]. Section 16(1)(a) extends state immunity to the employment of all members of a diplomatic mission. The Court rejects the Secretary of States argument that a state is entitled in international law to absolute immunity in respect of the employment of embassy staff. Although article 7 of the Vienna Convention on Diplomatic Relations 1961 indicates that a court may not order a foreign state to employ a specific person in its embassy, this issue does not arise where the claimant only seeks damages (rather than reinstatement in his or her previous position) [68-69]. Nor is there any corresponding rule of customary international law to extend absolute state immunity to the employment of embassy staff [70-72]. As a matter of customary international law, therefore, neither Sudan nor Libya are entitled to immunity in respect of these claims. Sections 4(2)(b) and 16(1)(a) of the 1978 Act, which confer immunity in English law, are consequently incompatible with article 6 of the ECHR [74-75]. In light of that, the Secretary of State accepted that those sections were also incompatible with article 47 of the EU Charter [77]. The Court also accepts Ms Janahs argument that section 16(1)(a) of the 1978 Act discriminated unjustifiably on the grounds of nationality, but in the circumstances that adds nothing [76]. EU law prevails over English law in the event of a conflict, so those sections of the 1978 Act cannot bar the claims which are based on EU law [77]. Those EU law claims are remitted to the Employment Tribunal, to be determined at trial. The other claims remain barred by the 1978 Act, notwithstanding that the Court of Appeal properly made a declaration of incompatibility with the ECHR in respect of them [78].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2015-0082.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2015-0082.txt
new file mode 100644
index 0000000000000000000000000000000000000000..071d7a0885f158050bdd01e10b2a678421f60315
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2015-0082.txt
@@ -0,0 +1 @@
+Judicial review is not the only course of action available to challenge the conduct of a public body. Public bodies are not immune from the ordinary application of the common law, including the law of confidentiality [28]. This case should be approached from the perspective of the common law of confidentiality [17, 28]. It is a well-established principle of the law of confidentiality that where information of a personal or confidential nature is obtained or received in the exercise of a legal power or in furtherance of a public duty, the recipient will in general owe a duty to the person from whom the information was received or it relates. The tax affairs of individual taxpayers are matters between HMRC and the taxpayer, and confidentiality is a vital element in the working of the system [17]. However, this principle may be overridden by explicit statutory provisions [18]. By taking together ss.5, 9 and 51(2) of the 2005 Act, HMRCs interpretation of the phrase disclosure made for the purpose of a function of HMRC in s.18(2)(a)(i), would permit disclosure of anything which in the view of HMRC is necessary, expedient, incidental, conducive to or in connection with the exercise of the functions of the collection and management of revenue. However, if this interpretation was correct the provisions permitting disclosure in the specific circumstances in s.18(2)(b) to (j) would be superfluous. Furthermore, such a construction would run counter to the principle of legality, by which fundamental rights cannot be overridden by general or ambiguous words [19]. In enacting the 2005 Act, Parliament cannot have envisaged that it was authorising HMRC officials such a wide ranging discretion to disclose confidential information about the affairs of individual taxpayers, limited only by the rationality test applied in judicial review claims, as this would significantly undermine the primary duty of confidentiality in s.18(1) [22]. The correct interpretation of Section 18(2)(a)(i) is that it permits disclosure to the extent reasonably necessary for HMRC to fulfil its primary function [23]. It is for the court to decide whether there has been a breach of confidentiality by applying the law to its own judgment of the facts. The opinion of the individual who has disclosed the information is not irrelevant, but the court will decide what weight it should be given [26]. This principle applies whether the duty of confidentiality is contractual or where, as in the current case, the person or body owing a duty of confidentiality holds a public office, is a public body, or is performing a public function, subject to any contrary statutory provision [27, 29]. An impermissible disclosure of confidential information is no less impermissible because the information is passed on in confidence, or off the record [31]. The information supplied by Mr Hartnett to the journalists about Mr McKenna and Ingenious Media was confidential in nature, in respect of which HMRC owed a duty of confidentiality under s.18(1) of the 2005 Act [32]. The fact that Mr Hartnett did not anticipate his comments being reported is not a justification for making them [35]. The desire to foster good relations with the media and to publicise HMRCs view about tax avoidance schemes and speculation that the journalists may have subsequently informed Mr Hartnett about other tax avoidance schemes do not provide sufficient justification for the disclosures either [34]. The disclosures by Mr Hartnett were not therefore justified under s.18(2)(a) of the 2005 Act [36].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2015-0177.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2015-0177.txt
new file mode 100644
index 0000000000000000000000000000000000000000..3d70925d97f5cbc0cdaa8f752c72d65d69b25f59
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2015-0177.txt
@@ -0,0 +1 @@
+The first issue: whether the common law claims are excluded by the 1994 Act Section 78 of the 1994 Act impliedly excludes the claims made by Littlewoods, as a matter of English law, for the following reasons. First, the scheme created by section 78 is inconsistent with the availability of concurrent common law claims to interest. The right to interest in section 78 is subject to certain limitations, including (i) section 78(1), which limits HMRCs liability to pay interest to cases of error by HMRC [31]; (ii) section 78(3), and the provisions to which it refers, which determine that the interest rate is calculated on a simple rather than a compounded basis [32]; (iii) section 78(11), which sets the applicable limitation period, which is shorter than the limitation period that would apply to a common law claim [33]. These limitations would be defeated and rendered effectively pointless if it were possible for the taxpayer to bring a common law claim[34]. Second, section 78 states that the liability to pay interest under that section applies if and to the extent that [the Commissioners] would not be liable to do so apart from this section. On a literal meaning, this would permit a common law claim for interest to be made outside section 78. At the time section 78 was enacted, however, the type of common law claim made by Littlewoods in the present case had not yet been recognised in law, and was thus not contemplated by Parliament when it enacted the legislation. It cannot have been Parliaments intention that a common law claim would be permitted in any case where an amount was paid under section 80, as this would render section 78 a dead letter, and would fatally compromise the statutory scheme. As such, the reservation in section 78(1) (italicised above) cannot be read literally. It must be construed as referring only to statutory liabilities to pay interest, not to a common law liability for interest [34-39] The second issue: whether EU law requires the payment of compound interest The CJEU judgment does not require reimbursement of the losses constituted by the unavailability of money. The CJEU has given member state courts a discretion to provide reasonable redress in the form of interest in addition to the principal sum. The lower courts in this case read too much into the phrase adequate indemnity in the CJEU judgment [51, 70]. Three reasons support this view. First, when read as a whole, the CJEUs judgment, which directly addresses the issue in this case, is clear. The judgment can be analysed in the following three parts: (i) there is a general entitlement to interest on tax levied in breach of EU law (paras 24-26 of the CJEU judgment); (ii) it is for member states to determine whether the interest rate is simple or compound, subject to the principle of effectiveness which requires that the calculation of that interest should amount to reasonable redress or an adequate indemnity for the taxpayers loss (paras 27-29 of the CJEU judgment); and (iii) the suggestion that interest which is over 125% of the principal sum might be such reasonable redress (para 30 of the CJEU judgment) [52-59, 71]. Second, there is a widespread practice among EU member states of awarding taxpayers simple interest on the recovery of taxes which were unduly paid. If the CJEU were seeking to outlaw that practice, one would have expected clear words to that effect [60, 72]. Third, the prior and subsequent case law of the CJEU is consistent with the principle that there is an EU right to interest, but that the rate and method of calculation of interest are matters for the member states. Case C-271/91 Marshall, where the CJEU held that interest had to be awarded to take account of the diminution in value of money over time, was a case about the measure of compensation for sex discrimination, and is distinguishable from the present case [61-69]. In summary, the payment of interest in this case cannot realistically be regarded as having deprived Littlewoods of an adequate indemnity [73]. The other issues raised in the appeal do not arise for decision, as they would arise only if Littlewoods were successful on either of the first two issues [16].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2015-0214.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2015-0214.txt
new file mode 100644
index 0000000000000000000000000000000000000000..f6ecdc494fefd725dd82b098713dec06d50d3b15
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2015-0214.txt
@@ -0,0 +1 @@
+Habitual residence Lord Wilson (with whom Lady Hale and Lord Toulson agree) observes that two consequences flow from the modern international primacy of the concept of a childs habitual residence. First, it is not in the interests of children routinely to be left without a habitual residence [30]. Second, the English courts interpretation of the concept of habitual residence should be consonant with its international interpretation [31]. The present case, however, involved a third aspect of the concept of habitual residence: the circumstances in which a child loses his or her habitual residence [32]. The traditional English law approach to this issue is heavily dependent upon parental intention. In particular, in In re J (A Minor), Lord Brandon observed that a person may cease to be habitually resident in a country in a single day if he or she leaves it with a settled intention not to return and settle elsewhere [33-34]. Lord Wilson notes that the Supreme Court in A v A held that the English concept of habitual residence should be governed by the criterion set out in the CJEU jurisprudence: namely, that there be some degree of integration by the child in a social and family environment. This focuses on the childs situation, with parental intention being merely one relevant factor [35-38]. Lord Wilson identifies two points in the CJEU jurisprudence relevant to the issue of when habitual residence is lost. First, the effect of Recital 12 to the Brussels II Regulation is that, where the interpretation of the concept of habitual residence can reasonably follow two paths, the courts should follow the path perceived better to serve the interests of children. Second, the CJEU has indorsed the view that, although it is conceivable that a child may have no habitual residence, this will only be in exceptional cases [40-44]. Lord Wilson concludes that the modern concept of a childs habitual residence operates in such a way as to make it highly unlikely, albeit conceivable, that a child will be left without a habitual residence; the concept operates in the expectation that, when a child gains a new habitual residence, he or she loses their old one. Lord Brandons observation in In Re J should no longer be regarded as correct, and Hogg J fell into error in being guided by it [45-47]. Lord Wilson therefore states that the correct question is whether B had by 13 February 2014 achieved the requisite degree of disengagement from her English environment [48]. He concludes that, taken cumulatively, the factors pointing to the conclusion that B had not by 13 February 2014 achieved the requisite degree of disengagement compel the conclusion that she retained habitual residence in England [49-50]. Accordingly, the Appellants application under the 1989 Act can and should proceed to substantive determination by the High Court (Family Division) [51]. Lord Sumption (dissenting) considers that Hogg J made no error of law and, having heard and reviewed the evidence, was entitled to find that B lost her habitual residence in England on 3 February 2014 [64-80]. Lord Clarke agrees [89-95]. Inherent jurisdiction Given the majoritys conclusion on habitual residence, it is unnecessary to decide whether the inherent jurisdiction can be exercised. Lady Hale and Lord Toulson observe that none of the reasons for caution when deciding whether to exercise the inherent jurisdiction has much force in this case. They consider that the jurisdiction is not confined to exceptional circumstances; it could have been exercised if the court held that B required protection [59-62]. Lord Wilson agrees, but leaves open the question of whether it would have been appropriate to exercise the inherent jurisdiction in this case [53]. Lord Sumption (dissenting) considers that, unless the inherent jurisdiction is reserved for exceptional cases, it may be exercised in a manner which cuts across the statutory scheme. He considers that the jurisdiction could not have been exercised in this case [81-87]. Lord Clarke, noting that the jurisdiction must be exercised with great caution, agrees that it should not be used on the facts of this case [96-97]. This summary is provided to assist in understanding the Courts decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available at: http://supremecourt.uk/decided-cases/index.html
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2015-0216.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2015-0216.txt
new file mode 100644
index 0000000000000000000000000000000000000000..32bb9015199211c3baa961c1f1e216152905f1af
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2015-0216.txt
@@ -0,0 +1 @@
+The Reserved Matters Challenge Part 4 is challenged on the ground that the data sharing provisions relate to the reserved matter of the Data Protection Act 1998 (the DPA) and Council Directive 95/46/EC (the Directive). Whether a provision relates to a reserved matter under the Scotland Act is determined by reference to its purpose [27-33]. The subject matter of the Directive (and therefore the DPA, which implemented the Directive in the UK) is the standards of protection which must be afforded to data and the methods by which those standards are secured [34-39]. The DPA imposes obligations on data controllers in relation to data processing, and creates rights for data subjects and a system for the regulation of data controllers. Section 35 of the DPA allows scope for derogation from certain of its requirements by legislation, which may include devolved legislation [44]. The bodies described in Part 4 as service providers and relevant authorities are currently subject to legal duties in relation to the disclosure of information as data controllers under the DPA [45-47]. The result of these duties is that information about C&YP can currently be disclosed, without their consent, if the disclosure is necessary in order to protect their vital interests, or if the disclosure is necessary for the exercise of a statutory function. These thresholds are higher than those under Part 4 which (respectively) refer to disclosure being likely to benefit wellbeing, and being likely to be relevant to the exercise of statutory functions. Data controllers are also obliged to comply with other data protection principles under the DPA [48]. Further protections are included in relation to sensitive data (e.g. health and sexual life) under Schedule 3 to the DPA [49-50]. The effect of Part 4 on the requirements of the DPA is extremely complex and was not fully discussed at the hearing. Sections 23 and 26 of Part 4 do not permit disclosure of information in breach of a prohibition or restriction on its disclosure arising by virtue of an enactment. At first sight, that means that disclosure under Part 4 is subject to compliance with the requirements of the DPA, since the DPA is an enactment. However, under ss. 27 and 35 of the DPA, personal data are exempt from some of the requirements of the DPA where the disclosure is required by or under any enactment. An Act of the Scottish Parliament is an enactment for this purpose. The result is a logical puzzle [51-54]. It is, however, clear that the powers and duties of disclosure under Part 4 cannot be taken at face value; in several respects, they are significantly curtailed by the DPA and the Directive [55-58]. However, although Part 4 contains powers and duties the objective of which is to ensure that information is shared, that objective is not distinct from the overall purpose of promoting the wellbeing of C&YP [64]. Part 4 also does not detract from the regime established by the DPA and the Directive [65]. Part 4 does not therefore relate to the subject-matter of the DPA and the Directive for the purposes of the Scotland Act, and the Reserved Matters Challenge cannot succeed [66]. The ECHR Challenge The appellants claim that the NPS breaches Article 8 ECHR rights. This is both (a) on the broad basis that compulsory appointment of a named person without parental consent amounts to a breach of the parents Article 8 rights, and (b) on the narrow basis that the information sharing provisions under Part 4 amount to breaches of parents and C&YPs Article 8 rights [67-68]. The Community Law Advice Network, as intervener, also challenged the information sharing provisions on the basis that they impose too low a threshold for the disclosure of confidential information and amount to an infringement of the Article 8 rights of C&YP. This meant that there was more focus on Article 8 in the appeal before this Court than there had been before the Court of Session below [69]. In the context of the 2014 Act, the interests protected by Article 8 include both family life [71-74] and privacy [75-77], and the operation of the information sharing provisions of Part 4 will result in interferences with those interests [78]. In accordance with the law In order for that interference to be in accordance with the law (for the purposes of Article 8(2)), the measures must not only have some basis in domestic law but also be accessible to the person(s) concerned and foreseeable as to their effects. This means rules must be formulated with sufficient precision to give legal protection against arbitrariness [79-81]. In assessing the legality of Part 4, regard must be had to the Guidance [82]. As is clear from the Courts findings on the Reserved Matters Challenge, there are difficulties in accessing the relevant rules for information sharing. An information holder would need to read together and cross refer between Part 4, the DPA and the Directive in order to work out the priority of their provisions. Of even greater concern is the lack of safeguards which would enable the proportionality of any interference with Article 8 to be adequately examined [83-84]. For example, information, including confidential information concerning a child or young persons state of health (e.g. as to contraception, pregnancy or sexually transmitted disease), could be disclosed to a wide range of authorities without either the child or young person or their parents being aware of the interference with their Article 8 rights, and in circumstances in which there was no objectively compelling reason for the failure to inform them. Accordingly, as currently drafted, the information sharing sections of Part 4 and the Guidance do not satisfy the requirement of being in accordance with the law [85]. Proportionality In assessing whether the operation of Part 4 would give rise to interferences with Article 8 which are disproportionate having regard to the legitimate aim pursued, it is necessary to distinguish between the 2014 Act and its operation in individual cases [86-88]. Focusing on the proportionality of the legislation itself, Part 4 undoubtedly pursues legitimate policy aims and is clearly rationally connected to those aims [91-92]. Allowing the legislature the appropriate margin of discretion, Part 4 is also a reasonable measure for the legislature to impose in order to achieve those legitimate aims. It is for this reason that the appellants broad challenge cannot succeed. If a named person could be appointed only with parental consent, the scope for early intervention would be diminished [93]. However, the operation of Part 4 may well give rise to disproportionate interferences in particular cases: First, there is a risk that parents will be given the impression that they must accept advice in relation to the services offered by a named person in the exercise of the named person functions, and that their failure to cooperate would be taken as evidence of risk of harm. Care should therefore be taken to emphasise the voluntary nature of the advice, information, support and help offered by the named person [94-95]. Secondly, the information holder will have to address difficult questions of proportionality in relation to the disclosure of confidential information with the help of only the Guidance, which is limited, and the Part 4 criteria, which set too low a threshold for overriding duties of confidentiality [96-100]. There is therefore a need for clear guidance to information holders as to how to assess proportionality when considering whether information should be shared [101]. The EU Law Challenge In relation to the EU Law Challenge, there is no incompatibility additional to that identified in relation to the ECHR Challenge [102-105].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2015-0238.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2015-0238.txt
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index 0000000000000000000000000000000000000000..08be3df49fe546636b8f1a2fbb7982f7ad30d056
--- /dev/null
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@@ -0,0 +1 @@
+The jurisdiction of the Court of Protection is limited to decisions that a person (P) could take if he had the capacity to do so. It is not to be equated with the jurisdiction of the courts to make orders in respect of children: under the MCA the court does not become the guardian of an adult who lacks capacity and the adult does not become the ward of the court [24]. The MCA focuses on capacity in relation to a specific decision or matter. Rather than granting declaratory relief available under section 15, it is better if possible for the court to make orders under section 16 [26]. There is scope under section 16 for the court to make a decision on Ps behalf, or to appoint a deputy to make such decisions, and the courts powers set out in section 17 include the power to decide where P is to live and what contact, if any, P is to have with any specified persons. These powers do not extend to decisions compelling third parties to accommodate, or meet, or to provide services or treatments for P [29]. The fact that the court has no greater power to take a decision than P would have had himself means that it too can only choose between the available options. It resembles the inability of the family court in children cases to oblige an unwilling parent to have the child to live with him, or to oblige an unwilling health service to provide a particular treatment for the child [35]. Nor can the court use its powers to put pressure upon a local authority to make particular decisions in exercise of its statutory powers and duties to provide public services. Such decisions can instead be challenged on judicial review principles, where the legal considerations for the public authority and for the court will be different from those under the MCA [37]. It was unfortunate in Ns case that the issue was described as one of jurisdiction since the Court of Protection clearly has jurisdiction to make declarations and orders under the MCA. The question was rather how Ns case should be handled in the light of the limited powers of the court [38]. The court has wide case management powers, which include the identification of issues which need full investigation, and it is entitled to take the view that no useful purpose will be served by holding a hearing to resolve other issues [41]. In this case, there were good reasons for thinking that Ns parents wishes were impracticable and that the respondent had good reasons for rejecting them. The Official Solicitor supported the respondent. It was unlikely that investigation would bring about any further modifications or consensus and it would be disproportionate to devote any more of the courts scarce resources to resolving matters [42]. Accordingly, since the court did not have power to order the respondent to fund what Ns parents wanted, nor to order the actual care providers to do that which they were unwilling or unable to do, the judge was entitle to conclude (as in substance she had) that no useful purpose would be served by continuing the hearing [44]. The appeal is therefore dismissed.
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2015-0255.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2015-0255.txt
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index 0000000000000000000000000000000000000000..b3a281239b0d64a441777af2cc3817bf60eb60bb
--- /dev/null
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@@ -0,0 +1 @@
+The Public Law Project contend that the exclusion of a specific group of people from the right to receive legal services on the ground of personal circumstances or characteristics, which have nothing to do with the nature of the issue or services involved or the individuals need, or ability to pay, for the services, is not within the scope of the power accorded to the Lord Chancellor by section 9(2)(b) of LASPO, and that nothing in section 41 undermines that contention. That argument is accepted by the Court [30]. In declaring subordinate legislation to be outside the scope of the statutory power pursuant to which it was purportedly made, the Court is upholding the supremacy of Parliament over the Executive [23]. Section 9(2)(b) provides a power to vary or omit services, but the relevant parts of the draft order do not seek to vary or omit services; rather, they seek to reduce the class of individuals who are entitled to receive those services by reference to a personal characteristics or circumstance unrelated to the services (i.e. length of residency) [30]. This interpretation of the wording of section 9(2) is supported by the wider statutory context. Each of the services identified in Part 1 and Part 2 of Schedule 1 is linked to a specific type of legal issue or claim, and has nothing to do with the personal circumstances or characteristics in particular the geographical residence of the potential recipient of the services [31]. This conclusion is also supported by contrasting the wording of the two subsections of section 9. Subsection (1) clearly distinguishes between the question of whether the particular services qualify and whether the particular individual qualifies [33]. Section 9(2) is concerned with the services which qualify, and it is section 11 which appears to be concerned with identifying the characteristics or circumstances of individuals who are to qualify for civil legal aid. The criteria that section 11 sets out all relate to the issue involved, the services concerned, or the need of the individual for financial assistance, in contrast to the draft order. This indicates that the draft order is attempting to do something which the legislature never had in mind when enacting section 9 [34]. The Court of Appeal concluded that section 41 could be invoked to defeat the contention that the Lord Chancellor could not make the draft order under section 9. While it is true that section 41(2)(b) permits any order made under section 9(2)(b) to make provision by reference to services provided for a particular class of individual, this cannot extend the power under section 9(2)(b) so as to exclude a whole class of individuals from the scope of Part 1 of LASPO by reference to their residence [36]. Section 41 is clearly intended to grant ancillary powers to those primarily granted under section 9 [36]. Accordingly, the appeal should be allowed on the first, ultra vires, issue, and the Court does not have to deal with the discrimination issue [39].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2016-0004.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2016-0004.txt
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index 0000000000000000000000000000000000000000..7eff2c22815f114d4c664d97c2d5f02d72e8077c
--- /dev/null
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@@ -0,0 +1 @@
+Non-delegable duty of care A local authority are not under a non-delegable duty to ensure that reasonable care is taken for the safety of children in care while they are in the care and control of foster parents. Such a proposition is too broad, and fixes local authorities with too demanding a responsibility [49]. The following reasons are given: The Child Care Act 1980 (the 1980 Act) permits a local authority to arrange for children in care to spend time staying with their parents or grandparents, or other relatives or friends. Imposing a strict liability on local authorities for the lack of care of those relatives or friends would risk creating a conflict between the local authoritys duty, under section 18(1) of the 1980 Act, to give first consideration to the need to safeguard and promote the welfare of the child, and their interests in avoiding exposure to such liability. It would also risk creating a form of state insurance in situations where the local authority place the child with the childs own parents [45]. The 1980 Act required the local authority to discharge the duty to provide accommodation and maintenance for a child, including by placing the child with foster parents. This implies that, although the local authority have numerous duties towards the child, their duty is not to provide the child with day to day care, but rather to arrange for, and monitor, the performance of that function by the foster parents [46-47]. The Secretary of State makes regulations under section 22 of the 1980 Act imposing duties on local authorities in relation to the boarding out of children. The implication of section 22 is that the local authoritys continuing responsibility for the child is discharged by boarding-out the child in accordance with those regulations, including by prior approval of the household, and subsequent inspection, supervision and removal. The statutory regime does not impose any responsibility for the day to day care of the child [48]. Vicarious liability Applying the principles set out in Cox v Ministry of Justice [2016] UKSC 10 on the imposition of vicarious liability, the local authority are vicariously liable for the acts of the foster parents in the present case for the following reasons: Integration and business activity: The local authority carried out the recruitment, selection and training of foster parents, paid their expenses, and supervised the fostering. In those circumstances, the foster parents were not carrying on an independent business of their own, and it is impossible to draw a sharp distinction between the activity of the local authority and that of the foster parents. Thus the abuse committed by the foster parents against the claimant was committed by the foster parents in the course of an activity carried on for the benefit of the local authority [59-60]. Creation of risk: The placement of children with foster parents creates a relationship of authority and trust between the foster parents and children in circumstances where close control cannot be exercised by the local authority. This renders the children particularly vulnerable to abuse [61]. Control: The local authority exercised a significant degree of control over the foster parents: it exercised powers of approval, inspection, supervision and removal [62]. Micro-management, or a high degree of control, are not necessary for the imposition of vicarious liability [65]. Ability to pay damages: Most foster parents have insufficient means to meet a substantial award of damages, whilst local authorities can more easily compensate the victims of abuse [63]. There was no evidence to suggest that imposing vicarious liability would discourage local authorities from placing children in care with foster parents, and encourage them instead to place them in residential homes, at much greater cost. [68]. In response to the concerns raised by Lord Hughes: (1) The approach adopted would not have resulted in the imposition of vicarious liability if the appellant had been placed with her own parents. (2) This decision is concerned only with the legislation and practice that was in force at the relevant time, not with the current regime. (3) The courts care not to impose unduly exacting standards in the context of family life applies equally to life in foster families [71-73]. Lord Hughes gives a dissenting judgment on the vicarious liability issue. He considers that the majoritys approach would extend vicarious liability to family and friend placements under the current statutory regime, and consequently inhibit local authorities practice of making such placements. Finally, he considers that it may result in undesirable litigation of family activity in the courts [87-90].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2016-0048.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2016-0048.txt
new file mode 100644
index 0000000000000000000000000000000000000000..8958030fced216a955655720793f361414ad05ca
--- /dev/null
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@@ -0,0 +1 @@
+Under s 40 of the Constitutional Reform Act 2005, appeals to the Supreme Court are subject to provision under any other enactment restricting such an appeal. The question therefore is whether the provisions of BIIR constitute such an enactment or otherwise override the jurisdiction granted to the Supreme Court by s 40 [12]. The application to register a judgment governed by BIIR is intended to be a speedy and essentially administrative process. Either party may appeal the decision under article 33, which is subject to the provision in article 34 that the judgment given on such an appeal may be contested only by the proceedings referred to in the list notified by each member state to the Commission pursuant to article 68. The UK has provided in its list of notifications under article 68 that appeals in England and Wales under article 34 may be brought only by a single further appeal on a point of law to the Court of Appeal [16]. It has been the practice of the UK in several previous European instruments concerned with the free movement of judgments and judicial cooperation to provide for only one tier of further appeal. The purpose of this restriction is to further the intention of these instruments that member states should recognise and enforce each others judgments without too many avenues for challenge [26]. The provisions of BIIR and the notification under article 68 are directly applicable in the UK. Article 34 does not depend for its implementation upon the member states choice of avenue of appeal and in any event the UK did make a notification [37]. It is not necessary for the notification to reflect all appellate rights under UK law: to further the objective of BIIR, article 68 permits member states to make notifications which cut down the routes of appeal which would otherwise be available [38]. It follows that the Supreme Court has no jurisdiction to entertain an appeal in this case and the appeal is struck out.
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2016-0052.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2016-0052.txt
new file mode 100644
index 0000000000000000000000000000000000000000..7739265e86598ce6ff8fa2f02a1fc7d6ea8b65e1
--- /dev/null
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@@ -0,0 +1 @@
+The key provisions of the Drug Trafficking Act 1994 (DTA), as in force at the relevant time, were s.10(1), which treats interest for the purposes of enforcement as part of the amount to be recovered under the confiscation order and s.10(2) which enables a Crown Court judge to refix and increase the default term if the addition of accrued interest takes the sum outstanding into a higher bracket in the relevant schedule of defaults terms. [7] At the relevant time, s.9 DTA stated that where the Crown Court orders a defendant to pay any amount under s.2 DTA, ss.139(1) (4) and 140(1) (3) of the Powers of Criminal Courts (Sentencing Act) 2000 (the 2000 Sentencing Act) shall have the effect as if that amount were a fine imposed on the defendant by the Crown Court. [9] S.140(1) of the 2000 Sentencing Act treats for enforcement purposes a fine imposed by the Crown Court as if it had been imposed by the magistrates, and thus a confiscation order is treated the same. S.76 Magistrates Courts Act 1980 contains the magistrates power to commit an individual to prison for failure to pay a fine and an alternative power to issue a warrant of distress (now named a warrant of control). S.79 Magistrates Courts Act 1980 is the only provision dealing with part payments. [11] The difficulties in this case arise from the fact that the enforcement of confiscation orders is achieved by applying statutory provisions to confiscation orders which were not designed for them. A confiscation order is thus treated as if it was a fine imposed by the magistrates. The difference between a magistrates imposed fine and a Crown Court imposed fine is that magistrates do not fix a default term when imposing the fine. Imprisonment in default is only considered in the event of a default and, at that time, the magistrates will know whether the default is total or partial. Thus, credit can be given for part payments made before the commitment process is undertaken. However, s.139(2) of the 2000 Sentencing Act mandates the fixing of an anticipatory default term at the time the fine or order is imposed. [12] The difference in practices led the lower courts to analyse s.79(2) Magistrates Courts Act 1980 as assuming the standard magistrates practice and thus to conclude that the references in that subsection to a period of imprisonment having been imposed in default of payment were references to the act of the magistrates in issuing the warrant of commitment. This caused the consequential difficulty that s.79(2) would say nothing about how to deal with part payments made in Crown Court cases between the Crown Court making a confiscation order and the later magistrates proceedings. Hence the Court of Appeal understandably read additional words into s.79(2). [13] The period of imprisonment in default of payment is imposed for the purposes of s.79 when the Crown Court discharges its statutory duty under s.139(2) of the 2000 Sentencing Act and fixes the (anticipatory) term in default. This construction follows from s.150 Magistrates Courts Act 1980 and is necessary to make sense of s.140(3) of the 2000 Sentencing Act. It is also assumed by the Magistrates Court Rules. Thus, the default term in the case of Crown Court orders must be the term that the court imposed at the time of making its order. [15-17] The operative words of s.79(2) expressly say that the days to be deducted are to be the number which bear the same proportion to the total default term imposed (by the Crown Court) as the part payments bear to so much of the said sum as was due at the time the period of detention was imposed. At the time the Crown Court imposed the default term, there was as yet no interest accrued at all. [20] Straining of the wording of s.79(2) cannot be justified where it would adversely impact on the period of imprisonment to which a person is subject. Penal legislation, particularly legislation imposing penalties that deprive liberty, is construed strictly. The natural construction of the section is that the starting point for the arithmetical calculation of reduction in days of imprisonment is the sum outstanding at the time of the Crown Court order. [21] charges of distress do not support the respondents construction. The reference is explained by the case of magistrates first issuing a warrant for distress and only subsequently fixing the default term for non-payment. The addition of such costs and charges is expressly provided for and that does not mean that an equivalent provision can be read in as a consequence of a provision in different statute (s.10(1) DTA). [22]
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2016-0080.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2016-0080.txt
new file mode 100644
index 0000000000000000000000000000000000000000..ac237505ac8e5d7c091ae0df9343c2eade6f1124
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2016-0080.txt
@@ -0,0 +1 @@
+As the Court of Appeal erred in law, the Supreme Court grants permission to appeal and must decide for itself whether the interim injunction should be discharged or maintained [19]. The principal error is that the Court of Appeal wrongly directed itself that s 12 HRA enhanced the weight to be given to article 10 rights in the balancing exercise, when the case law establishes that neither article 8 nor article 10 has preference over the other and what is necessary is an intense focus on the comparative rights being claimed in the individual case [20][51]. The Court of Appeal also referred to a limited public interest in the story when it had rightly held that there was none in its earlier judgment [21]. There is not, on its own, any public interest in the legal sense in the disclosure of private sexual encounters even if they involve infidelity or more than one person at the same time, however famous the individual(s) involved [24][32]. It is essential to distinguish between the claims for breach of privacy and for breach of confidence. The widespread availability of the information in the public domain may well mean that PJS would face difficulties in obtaining a permanent injunction in so far as his claim is based on confidentiality [57], but different considerations apply to privacy claims, where the impact of any additional disclosure on the likely distress to PJS and his family, and the degree of intrusion or harassment, continues to be highly relevant. The question is whether the injunction can still serve a useful purpose. It is important to consider the medium and form of the previous publication: there is a qualitative difference in intrusiveness and distress between the disclosures on the internet which have occurred and the media storm which would follow from publication by the English media in hard copy, together with unrestricted internet coverage of the story [35][63]. Publication in this form is contrary to the interests of PJSs children and in breach of the requirement to show an exceptional public interest for the intrusion set out in the Editors Code of Practice to which NGN has subscribed [36]. Lady Hales judgment discusses this consideration further, partly in redacted form to prevent identification [72-78] Rights must be practical and effective. The grant of an injunction is the only remedy of any value to PJS and his family, for whom the invasion of privacy occasioned by further disclosure in the English media, rather than any award of damages, is likely to be the real concern [43]. The central issue is whether the trial judge is likely to grant a permanent injunction. Balancing all these factors, the majority concludes that PJS is likely to establish at trial that the proposed publication by NGN constitutes a serious breach of his and his familys privacy rights, with no countervailing public interest on the present evidence, and that he is likely to be granted a permanent injunction notwithstanding the internet and social media publication. Accordingly, the interim injunction is maintained [44-45][68]. Lord Toulson, dissenting, would have upheld the discharge of the injunction. He considers that where the information is widely available, the form of the publication should not make a significant difference: the purpose of s 12(3) is to discourage the granting of an injunction to prevent publication of information which is already widely known [89].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2016-0082.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2016-0082.txt
new file mode 100644
index 0000000000000000000000000000000000000000..aec1dc6a84d8fe7a2a003ea854bcf17ab4e39dd7
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2016-0082.txt
@@ -0,0 +1 @@
+The proposition that there is a Caparo test which applies to all claims in the modern law of negligence, and that in consequence the court will only impose a duty of care where it considers it fair, just and reasonable to do so on the particular facts, is mistaken [21-24]. It is normally only in novel cases, where established principles do not provide an answer, that the courts need to exercise judgment that involves consideration of what is fair, just and reasonable [27]. This case concerned an application of established principles of the law of negligence and so the existence of a duty of care did not depend on the application of a Caparo test [30]. Like other public authorities, in accordance with the general law of tort, the police are subject to liability for causing personal injury [45-48]. On the other hand, as held by the Supreme Court in Michael v Chief Constable of South Wales Police (Refuge and others intervening) [2015] UKSC 2, the general duty of the police to enforce the criminal law does not carry with it a private law duty towards individual members of the public. The common law does not normally impose liability for omissions, or, more particularly, for a failure to prevent harm caused by the conduct of third parties [50]. The case of Hill v Chief Constable of West Yorkshire [1989] AC 53 is not authority for the proposition that the police enjoy a general immunity from suit in respect of anything done by them in the course of investigating or preventing crime. The effect of Hill is that the police do not owe a duty of care, in the absence of special circumstances, to protect the public from harm through the performance of their function of investigating crime [54-55]. The authorities relied on by the respondent [56-66] are not inconsistent with the police being generally under a duty of care to avoid causing personal injury where such a duty would arise according to ordinary principles of the law of negligence [67-68]. Applying these principles, the police may be under a duty of care to protect an individual from danger of injury which they have themselves created [70]. The present case concerned a positive act, not an omission. The reasonably foreseeable risk of injury to the Appellant when the arrest was attempted was enough to impose a duty of care on the officers [74]. The judge was entitled to find negligence where Willan accepted that he was aware of the risk that Williams would attempt to escape and of the risk to members of the public in that event, that he would not have attempted the arrest at a time when he was aware that someone was in harms way, and that he had failed to notice the Appellant [75-78]. The Appellants injuries were caused by the officers breach of their duty of care; she was injured as a result of being exposed to the danger from which they had a duty of care to protect her [79-80]. Both Lord Mance and Lord Hughes agreed with the majority that the present case concerned a positive act, not an omission, and that the finding of the trial judge on negligence should be restored [82; 122- 124]. However, Lord Mance found it unrealistic to suggest that, when recognising and developing an established category of liability, the courts are not influenced by policy considerations [84]. It was not possible to state absolutely that policy considerations may not shape police liability where the conduct of the police may be analysed as positive, rather than simply as involving some form of omission [85- 94]. However, he concluded that we should now recognise the direct physical interface between the police and the public, in the course of an arrest placing an innocent passer-by at risk, as falling within a now established area of general police liability for positive negligent conduct which foreseeably and directly inflicts physical injury [97]. Lord Hughes referred to vital policy considerations which impose limits on the duty of care which the police owe to individuals. Such considerations are the ultimate reason why there is no duty of care imposed on police officers engaged in the investigation and prevention of crime towards victims, suspects or witnesses. The greater public good requires the absence of any duty of care [103-120]. In response to these points, Lord Reed emphasised that discussion of policy considerations is not a routine aspect of deciding cases in the law of negligence, and is unnecessary when existing principles provide a clear basis for the decision, as in the present appeal [69].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2016-0210.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2016-0210.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e9d500c50aed4cab9f9663ec11a8f53d609152c3
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2016-0210.txt
@@ -0,0 +1 @@
+In deciding which interpretative tools will best assist in ascertaining the meaning of a contract or trust, and the weight to be given to each of the relevant interpretative tools, English courts must have regard to the nature and circumstances of the particular instrument [13]. A pension scheme has several distinctive characteristics which are relevant to the courts selection of the appropriate interpretative tools. First, it is a formal legal document which has been prepared by skilled and specialist legal draftsmen. Secondly, unlike many commercial contracts, it is not the product of commercial negotiation between parties who may have conflicting interests and who may conclude their agreement under considerable pressure of time. Thirdly, it is an instrument which is designed to operate in the long term, defining peoples rights long after the economic and other circumstances, which existed at the time when it was signed, may have ceased to exist. Fourthly, the scheme confers important rights on parties, the members of the pension scheme, who were not parties to the instrument and who may have joined the scheme many years after it was initiated. Fifthly, members of a pension scheme may not have easy access to expert legal advice or be able readily to ascertain the circumstances which existed when the scheme was established [14]. In light of these characteristics, it is appropriate for the Court to give weight to textual analysis, by concentrating on the words which the draftsman has chosen to use and by attaching less weight to the background factual matrix than might be appropriate in certain commercial contracts [15]. However, the emphasis on textual analysis as an interpretative tool does not derogate from the need both to avoid undue technicality and to have regard to the practical consequences of any construction. Such an analysis does not involve literalism but includes a purposive construction when that is appropriate [16]. The Court is persuaded that the correct interpretation of the first sentence of the Definition is that RPI means the RPI or any index that replaces the RPI and is adopted by the trustees [19]. The Court reaches this view for the following eight reasons. First, the draftsman chose to use the word replacement which does not naturally suggest the selection of an alternative to an option which remains available. It is, nonetheless, capable of bearing that meaning, and one must look to the context for guidance [20]. Secondly, the word order and grammatical construction of the phrase a replacement adopted by the trustees suggest that the RPI must first be replaced and that the trustees adopt the replacement. [21]. Thirdly, the existence of a discretion on the part of the trustees and the requirement that the adoption should not prejudice the approval of the Commissioners of Inland Revenue (CIR) do not militate against this view [22]. Fourthly, consistency within the rules of the scheme as a whole, and indeed within the Definition itself, would suggest that it is the relevant official authority and not the trustees who are to effect the replacement in the first sentence of the Definition [23]. Fifthly, the CIR guidance on approval of schemes does not assist because the draftsman has not chosen to use wording similar to that guidance in the Definition [25]. Sixthly, the superseded rules do not assist in interpreting the Definition [26]. Seventhly, a provision which provides for the circumstance of the official replacement of a cost of living index does not lack a rational purpose [27]. Eighthly, while the requirement of indexation by reference to the RPI imposes obligations on Barnardos and contributes to the pension deficit at a time when many see the CPI as a more reliable index for the cost of living, the Court must construe the rules of the scheme without any preconceptions as to whether a construction should favour the sponsoring employer or the members [28].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2016-0213.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2016-0213.txt
new file mode 100644
index 0000000000000000000000000000000000000000..00711a90cce2973f6e8edc7462a21a0b92443b9a
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2016-0213.txt
@@ -0,0 +1 @@
+It was common ground that the parties contract for betting contained an implied term that neither of them will cheat. [35] It would be unwise to attempt a definition of cheating. Its essentials normally involve a deliberate act designed to gain an advantage in the play which is objectively improper given the parameters and rules of the game in question. What amounts to cheating is a jury question. Dishonesty is not a concept that would bring clarity or certainty to a jurys assessment of whether certain behaviour is or is not cheating. [47-48] It is an essential element of Punto Banco that it is a game of pure chance. Mr Ivey staged a carefully planned and executed sting. If he had secretly gained access to the shoe of cards and personally re- arranged them that would be considered cheating. He accomplished the same results by directing the actions of the croupier and tricking her into thinking that what she did was irrelevant. Mr Iveys actions were positive steps to fix the deck and therefore constituted cheating. [50] Dishonesty is included in the definition of some but not all acquisitive criminal offences. [52] R v Ghosh [1982] EWCA Crim 2 introduced a two-stage test for dishonesty for a jury to apply, with a subjective second leg. Firstly, the jury must ask whether in its judgment the conduct complained of was dishonest by the lay objective standards of ordinary reasonable and honest people. If the answer is no, that disposes of the case in favour of the defendant. But if the answer is yes, it must ask, secondly, whether the defendant must have realised that ordinary honest people would so regard his behaviour as dishonest, and he is to be convicted only if the answer to that second question is yes. However, the second leg of the rule adopted in Ghosh has serious problems. The principal objection is that the less a defendants standards conform to societys expectations, the less likely they are to be held criminally responsible for their behaviour. The law should not excuse those who make a mistake about contemporary standards of honesty, a purpose of the criminal law is to set acceptable standards of behaviour. [54, 57-59] In civil actions the law has settled on an objective test of dishonesty. There can be no logical or principled basis for the meaning of dishonesty to differ according to whether it arises in a civil action or a criminal prosecution. [62-63] The second leg of the test propounded in Ghosh does not correctly represent the law and directions based upon it ought no longer to be given. The test of dishonesty is that used in civil actions. The fact-finding tribunal must ascertain (subjectively) the actual state of the individuals knowledge or belief as to the facts and then determine whether his conduct was honest or dishonest by the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest. [74] If cheating at gambling required an additional legal element of dishonesty, it would be satisfied in this case. [75]
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0006.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0006.txt
new file mode 100644
index 0000000000000000000000000000000000000000..9535a733c8ccb35f0adbaecc1cfd4dd34c23b7b1
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0006.txt
@@ -0,0 +1 @@
+So-called grey market goods are caught by the criminal offence in s.92(1), and the appellants contended construction of that section must be rejected. The plain reading of such a sign in (1)(b) is that it refers back to the sign mentioned in (1)(a) i.e. a sign which is identical to, or likely to be mistaken for, a registered trade mark. 1(b) therefore covers the unauthorised sale of any goods bearing a trademark (regardless of whether the trademark was applied to the goods in their manufacture with consent or not). But this reference back to (1)(a) does not also incorporate into the meaning of such a sign the commission of an offence under (1)(a), i.e. the requirement that the sign has been applied without the consent of the proprietor. Such a reading of (1)(b) is strained and unnatural and requires one to read such sign as such a sign, so applied. The offences set out in (a), (b) and (c) are not cumulative, but separate, and the requirement in the opening lines of s.92(1) that the use made of the sign is without the consent of the proprietor applies to each type of use specified whether it is the application of a trademark to goods, the sale of goods bearing a trademark, or the possession for sale of goods bearing a trademark. [8-12] The predecessor of section 92, section 58A of the Trademarks Act 1938, also plainly covered grey market goods. The appellants contention therefore that the more stringent test for intention in s.58A had the practical effect of confining criminal liability to cases of their category of true counterfeits must be rejected. [16-17] There is therefore no ambiguity in the language of the section to justify investigating the Parliamentary debate at the passing of the 1994 Act. In any event, the appellants did not contend that Parliament considered a difference between true counterfeits and grey market goods. Still less is there any point at which it can be suggested that Parliament plainly confined itself to criminalising fake goods and abjured the criminalising of grey market goods. The authorities relied on by the appellants in support of their contention that such a distinction was plainly intended do not assist here, as they were not addressing any difference between fake goods and unauthorised goods on the grey market, and moreover came years after the passage of the 1994 Act so could not have been in mind at the time of its passing. [13-14] The appellants are correct that in the context of goods which a proprietor voluntarily puts into the European single market with his trademark attached, section 12 of the 1994 Act, transposing article 7 of Directive 89/104/EEC, has the effect that further objection to the use of the mark is limited to special cases, such as changes or impairments to the goods. But that is true whichever of the rival constructions of section 92 is correct. Where it applies, this concept of exhaustion means that there is no infringement of the mark as a matter of civil law, and thus no criminal offence. But this sheds no light on the correct construction of section 92. [15] There is no reason to strain the construction of s.92(1) to exclude the sale of grey market goods. This is not because of the supposedly adverse consequences which the Crown argued would follow, some of which would be as likely to ensue even on the correct interpretation of the section. The distinction between the two categories suggested by the appellant is not cut and dried, but both are clear infringements of the rights of the trademark proprietor. The plain meaning of the Act is that it is unlawful to put grey goods on the market just as it is to put fake ones on there. In both cases the trader is setting out to profit from someone elses trademark without permission. [18] In the alternative, the appellants contend that the Crowns construction of section 92(1) involves a disproportionate breach of their rights under article 1, Protocol 1 to the European Convention on Human Rights. But the 1994 Act does not deprive them of their property, as it does not stop them selling the goods, except if they wish to do so whilst still with the misleading and infringing trademark attached. Such regulation of use or disposal of goods is permitted under the second paragraph of article 1 in the general interest, and is in any event a proportionate measure, striking a legitimate balance between the rights of the proprietor to protect his valuable trademark, and those of the person who wishes to sell good which he has bought. [19]
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0031.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0031.txt
new file mode 100644
index 0000000000000000000000000000000000000000..f6cdaeca7e3ead837f5afd823056221cb82c63c4
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0031.txt
@@ -0,0 +1 @@
+It was important to identify the different rights the appellants individually enjoyed, and thus what the Secretary of State needed to establish in order to remove them: Ms Sadovska had a right of permanent residence in the UK and could not be expelled unless she had abused her rights within the meaning of article 35 of the Directive. A Communication in 2014 from the European Commission giving guidance on the Directive explained that a marriage of convenience was a marriage contracted with the predominant purpose of enjoying the right of free movement. It was not enough that the marriage might bring incidental immigration and other benefits, and the predominant purpose must be the purpose of both parties [21-24, 29]. Mr Malik was liable to be removed as an over-stayer. Had he succeeded in marrying Ms Sadovska he would have acquired a right of residence in the UK under the Directive as a family member of an EU national working here. The Directive also required member states to facilitate the entry and residence of the partner of an EU citizen if it was a durable relationship, duly attested [25-26]. Both appellants enjoyed rights under articles 8 and 12 of the European Convention on Human Rights to a private and family life, and to marry and found a family [27]. The 2006 Regulations permitted the Secretary of State to take steps to remove Ms Sadovska on the basis of reasonable grounds to suspect that she had entered or attempted to enter a marriage of convenience, but she was entitled to an appeal where the facts and circumstances were fully investigated. The tribunal had to form its own view of the facts from the evidence presented. It was not for her to establish that her relationship with Mr Malik was a genuine and lasting one, but for the Secretary of State to establish that it fell within the definition of a marriage of convenience [28]. The tribunal had also to be satisfied that the removal of Ms Sadovska from the country where she had lived and worked for so long with other family members would be a proportionate response to the abuse of rights, rather than merely the prevention of the marriage [30]. As the tribunal had not analysed Ms Sadovskas rights this way, it was not possible for the Supreme Court to conclude that the Secretary of State had proved that the narrow grounds for taking away her established rights existed [31]. Mr Malik had no established rights but if he could produce evidence of a durable relationship with Ms Sadovska, it would be for the Secretary of State to show that it was not, or that there were other good reasons to deny him entry. Again, the Supreme Court could not conclude that, had his case been approached in the right way, the outcome would have inevitably been the same [32-33]. Accordingly, the burden of proof of establishing that the proposed marriage is one of convenience falls on the Secretary of State. The appeal is allowed and the case remitted for a full rehearing by the First-tier Tribunal, at which the inconsistencies in the appellants interviews will be considered along with their evidence supportive of a genuine relationship dating back several months, and the circumstances in which the interviews took place will also be taken into account [34]. The appellants ECHR rights did not add anything further to their claims in the light of this conclusion. Such rights would not in any event prevent a state from taking steps to prevent sham marriages, if it could show that the marriage would indeed be a sham [35].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0040.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0040.txt
new file mode 100644
index 0000000000000000000000000000000000000000..d532dba62b11d50f80c7c1ddb6d7130d6f8b92fd
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0040.txt
@@ -0,0 +1 @@
+The husband was granted permission to appeal to the Supreme Court only on a single ground - whether, in light of the fact that provision had already been made for the wifes housing needs in the capital settlement, the Court of Appeal was entitled to interfere with the judges decision not to increase the periodical payments so as to cover all of the wifes current rental costs [32]. The Court of Appeal had erred in saying that the judge had given no reason for declining to increase the order for periodical payments the judge had given a clear reason, namely that the wifes unwise decisions in relation to her capital had increased her basic needs by requiring her to pay rent, and that it was consequently unfair to expect the husband to meet these increased needs in full [33]. The Court of Appeal should have considered the impact of the original capital payment on the wifes current need to pay rent, and this involved a consideration of three earlier Court of Appeal authorities: Pearce v Pearce [2003] EWCA Civ 1054, North v North [2007] EWCA Civ 760, and Yates v Yates [2012] EWCA Civ 532 [34-38]. These cases were correctly decided and in light of this the judge was entitled, although not obliged, to decline to require the husband to fund payment of the rent in full. This respects the wide discretion conferred upon the court under s. 31(1) and (7) of the Matrimonial Causes Act 1973 in determining an application for variation of an order for periodical payments. Moreover, a court would need to give very good reasons for requiring a spouse to fund payment of the other spouses rent in the circumstances of this case. A spouse may well be obliged to make provision for the other spouse, but an obligation to duplicate that provision in situations such as this is improbable [40].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0073.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0073.txt
new file mode 100644
index 0000000000000000000000000000000000000000..2679b38b77651511b8b47c4c03d81a05d298e907
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0073.txt
@@ -0,0 +1 @@
+Section 64(3)(a) of the 2004 Act indicates that the purpose of the imposition of conditions is to make a house reasonably suitable for occupation by not more than the maximum number of households or persons specified in the application or decided by the housing authority. Section 67(1)(a) provides that a licence may include such conditions as the local housing authority considers appropriate for regulating all or any of the management, use and occupation of the house concerned, and section 67(2) sets out a non-exhaustive list of permitted conditions including conditions imposing restrictions or prohibitions on the use or occupation of particular parts of the house by persons occupying it [18]. These words in their natural meaning are sufficiently wide to include the conditions imposed by the Tribunals and the Court of Appeal [18]. Such a reading is also consistent with the object and purpose of the 2004 Act. Elsewhere in Part 2 of the 2004 Act, the manner of occupation and characteristics of occupants are considered relevant in contexts connected with HMOs and housing standards generally [20]. The guidance in respect of the 2004 Act also supports the view that the manner of occupation of a room and the type of occupant may have a bearing on the suitability of a particular room for a particular use [23]. The Court does not consider that the conditions in issue introduce an exception for a category of persons or a defined set of circumstances [24]. Furthermore, they do not permit occupation at a lower standard [25]. It is therefore appropriate to have regard to the proposed mode of occupation in considering the suitability of accommodation in an HMO [26]. In particular, account should be taken of the proposed mode of occupation where it is likely to influence the quality of the accommodation made available to the occupant. However, this does not permit the application of lower standards than would otherwise be applicable [26]. Thus, the power to impose conditions under sections 64 and 67 of the 2004 Act can be used to limit the class of persons for whom the HMO is suitable [27]. The Court agrees with the Court of Appeal that the conditions imposed by the Tribunals were deficient in that they failed to require any part of the HMO to be available for communal living and did not require the bedrooms other than the attic bedrooms to be let to students. That deficiency was, however, cured by the further conditions introduced by the Court of Appeal [33]. The condition limiting the occupation to persons engaged in full-time education is rational [35] and enforceable [37]. The Court considers, however, that the requirement limiting occupation to ten months in each year is irrational [36]. Therefore, subject to the deletion of the requirement of occupation for a maximum of ten months in each year, the conditions imposed by the Tribunals and the Court of Appeal in each case, considered cumulatively, were entirely lawful. Accordingly, the Supreme Court varies the conditions to delete the requirement of occupation for a maximum of ten months in each year but otherwise dismisses the appeal [38].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0075.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0075.txt
new file mode 100644
index 0000000000000000000000000000000000000000..5fa495f4d3e0a9edadde6857285e5ec225dbde7e
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0075.txt
@@ -0,0 +1 @@
+Section 6 of the Human Rights Act 1998 requires the Home Secretary to act compatibly with the rights contained in the European Convention on Human Rights, including the right under article 8 to respect for private and family life. Removing an applicant from the UK may interfere with this right. Therefore, if the Home Secretary refuses a persons application for leave to remain in the UK under the rules, he must nevertheless consider whether to grant leave on the basis of their right under article 8. Article 8 gives him a limited discretion to determine whether the interference is justified [4]. Section 117A(2) of the 2002 Act prompts decision-makers exercising this discretion to have regard to the public interest considerations in section 117B, which include: the maintenance of effective immigration controls; that persons in the UK can speak English and are financially independent; and that little weight should be given to a private life established by a person at a time when they are in the UK unlawfully or when the persons immigration status is precarious [20-21]. A persons immigration status in the UK can therefore be precarious even when he or she is lawfully present here [24]. Equally, the concept of little weight and the wording of section 117A(2) give decision-makers a limited degree of flexibility to uphold an article 8 claim on the basis of the applicants right to respect for private life, even if it was established when the applicants immigration status was precarious [49]. The Court of Appeal accepted that Ms Rhuppiahs own immigration status was precarious, but suggested that some immigrants could have an immigration status which was not precarious even though they did not have indefinite leave to remain in the UK. It added that the concept of precariousness might fall to be applied having regard to the persons overall circumstances. The Supreme Court holds that the application of the concept of precariousness does not depend on such a subtle evaluation of the overall circumstances as suggested by the Court of Appeal [25, 42]. The European Court of Human Rights (ECtHR) has approached the concept of precariousness in the context of the right to family life by asking whether the family life was created at a time when the parties knew that the immigration status of one of them made its persistence in the host state precarious from the outset [28]. Therefore, it distinguished the situation of an applicant who (though not present unlawfully) was no more than tolerated by the host state while it determined her various applications for residence permits and consequential appeals, from that of settled migrants who had formally been granted a right of residence. The Supreme Court has previously addressed this ECtHR decision, suggesting that family life will be precarious if created when an applicant was here unlawfully or had only a temporary right to remain in the UK [34-45]. Section 117B imports the concept of precariousness from the ECtHR case law. But the section only applies to an applicants private life [37]. In a case not cited to the Court of Appeal, the Upper Tribunal previously held that a persons immigration status was precarious for the purpose of section 117B(5) if his continued presence in the UK would be dependent upon a further grant of leave [38-39]. The Supreme Court now approves this decision. Everyone who, not being a UK citizen, is present in the UK and who has leave to reside here other than to do so indefinitely, has a precarious immigration status for the purposes of section 117B(5) [44]. This bright-line interpretation is consistent with the ECtHR and Supreme Courts language in the decisions referred to above [43]. The FTT nonetheless erred in concluding that Ms Rhuppiah was not financially independent within the meaning of section 117B(3). The Supreme Court holds that financially independent in section 117B(3) means not financially dependent upon the state. It therefore allows Ms Rhuppiahs appeal [52-58].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0083.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0083.txt
new file mode 100644
index 0000000000000000000000000000000000000000..584c8698db24eb80985295884ea443ee719d34bb
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0083.txt
@@ -0,0 +1 @@
+Three main conclusions follow from the contextual factors relevant to construing the Facilities Grant [22-24]. First, the intention was to confer a property right in the form of an easement [25]. Secondly, the grant was of a single comprehensive right to use a complex of facilities as they evolved, not fixed in 1981 [26-29]. Thirdly, there is no express requirement for contribution to the operational costs [30]. The effect of In re Ellenborough Park [1956] Ch 131 (CA) the leading case on easements on the central question in this appeal, namely whether the Facilities Grant could not amount to an easement because it conferred recreational and sporting rights, is fully discussed [44-57]. Lord Briggs concludes that Ellenborough Park establishes that such a grant can amount to an easement [48, 52-53, 59]. Overall, the majority accepts that the grant of an easement in this case was novel, given the greater running costs and operational responsibilities, and that there are factors which tell against broad recognition of rights over such facilities as easements [75]-[80]. Ultimately, however, the grant of purely recreational (including sporting) rights over land which genuinely accommodate adjacent land may be the subject matter of an easement, provided always that they satisfy the four well-settled conditions for easements [81]. Where the actual or intended use of the dominant tenement is itself recreational, as is the norm for holiday timeshare developments, the accommodation condition will generally be satisfied by a recreational easement [81]. Regarding the fourth condition whether the right is capable of forming the subject-matter of a grant other objections based on an ouster (the concern in this case being step-in rights of the dominant owner) and mere passivity (the issue being alleged positive duties on the servient owner) are not accepted by the majority, because of concurrent factual findings by the courts below [60-73]. On the cross-appeal, the majority holds that the Court of Appeal was wrong to limit the grant of rights to the facilities in existence at the time of the grant in 1981 [85, 92]. The sporting and recreational facilities referred to in the Facilities Grant were bound to change significantly over time [26, 86] and the new indoor swimming pool was, once complete, a facility made within the complex [88-92]. Lord Carnwaths dissenting judgment: Lord Carnwath considers that the intended enjoyment of the rights granted in this case, particularly as to the golf course and swimming pool, cannot be achieved without the active participation of the owner of those facilities in their provision, maintenance and management [95]. Thus, Lord Carnwath would not extend the Ellenborough Park principle to a full leisure complex. He considers that such an extension of the law on easements is wrong in principle and not supported by case law [96].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0096.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0096.txt
new file mode 100644
index 0000000000000000000000000000000000000000..52e05c75828f780a5587db042235129a11ac0daa
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0096.txt
@@ -0,0 +1 @@
+Having regard to the statutory requirements and the terms of the certificate, which disclose the insurers intention, the policy must be construed so that the third party cover meets the requirements of the RTA [24]. As the certificate did not purport to provide any additional cover in itself, and because the relevant legislation treats a certificate of insurance as distinct from a policy, it is therefore necessary to read words into clause 1a. However, the CA went too far by doing so in such a way as to extend cover to any accident involving Mr Holden's vehicle [25-31]. The first step is to ask what caused by, or arising out of, the use of the vehicle on a road or other public place means. In English case law, the statutory word use has been interpreted broadly to cover any situation where the owner has an element of control, management or operation of the vehicle on the road or in a public place. The reason is that even a parked car may be a hazard on a road or in such a place [32-34]. The words caused by, or arising out of the use of further extend the required cover, but there must be a reasonable limit to the causal chain [42-45]. The concept of use in EU law goes further, and is not confined to a road or other public place. It extends to any use of a vehicle as a means of transport. To comply with EU law, Parliament may need to reconsider the wording of the RTA. But the RTA cannot be read down to comply by excising the words on a road or other public place because this would go against the grain and thrust of the legislation. It is therefore the cover required by the RTA, not EU law, that must be read into the policy [35-41]. Where the context and background of a contract drives the courts to the conclusion that something has gone wrong with the language used, it may adopt a corrective construction where it is clear what a reasonable person would have understood the parties to have meant [46-47]. Here, the necessary correction is to extend the cover beyond what was expressly provided to that which the RTA requires, and no more [48-49]. The CA erred in not adopting this approach: the formulation involving your vehicle expanded the cover significantly beyond both the express terms of the clause and the requirements of the RTA, by removing the statutory causal link between use of the vehicle on a road or other public place and the accident [50]. Nor does the statutory rule that the interpretation most favourable to the consumer must prevail apply to a situation such as this, where the court is correcting a mistake in the language used and there is no doubt about the parties intended meaning [51]. The appropriate corrective construction is therefore to read the clause as if it said we will cover you for your legal responsibility if you have an accident in your vehicle or if there is an accident caused by or arising out of your use of your vehicle on a road or other public place and [52]. Mr Holden's accident does not fall within clause 1a as so interpreted. A vehicle being repaired on private property is not being used [53]. Furthermore, although the attempted repairs may have arisen out of the use of the car, the property damage did not. It was Mr Holden's alleged negligence in carrying out the repairs, not the prior use of the car as a means of transport, that caused the relevant damage [54-55].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0106.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0106.txt
new file mode 100644
index 0000000000000000000000000000000000000000..094b0de9e439cc349699624692b26514ba6a3d9a
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0106.txt
@@ -0,0 +1 @@
+Issue (i) Until 1960 the Convention unquestionably applied to the territory now comprised in the SBAs [63]. Treaty obligations cease to apply to a territory where it secedes from the state which entered into the treaty, or where a formerly dependent territory becomes independent of the parent state which entered into the treaty [64]. The Cyprus Act 1960 did not alter the status of the SBAs but merely excluded them from the transfer of territory to the new Republic of Cyprus when it became independent [69]. As a matter of international law the Convention continues to apply to the SBAs by virtue of the declaration in 1956, in the same way it applied to the colony of Cyprus before 1960. Article VII(4) of the Protocol provides that where a state made a declaration under Article 40(1) or (2) of the Convention extending its application to a territory for whose international relations it was responsible, and then acceded to the Protocol, the declaration should apply to the Protocol also, unless that state notified the Secretary-General to the contrary. No further declaration was required to extend the Protocol to dependent territories where the original Convention applied. The UK acceded to the Protocol without any reservation relating to the SBAs. Since the Convention continued to apply to the SBAs after 1960, the Protocol applies there also [71]. Issue (ii) The Convention does not entitle the Respondents to be resettled in the UK metropolitan territory. A states duties under the Convention to a refugee reaching a particular territory for whose international relations the state is responsible are in principle and in normal circumstances limited to providing and securing the refugees Convention rights in that context [89]. The widespread use of colonial clauses in international treaties reflects the principle that for certain purposes, including the application of treaties, dependent territories of a state are treated as having a status in international law distinct from that of the parent states metropolitan territory [76]. Like many multilateral treaties, the Convention was framed to apply only to a states home country or metropolitan territory unless extended to other territories under Article 40 [78]. Article 40 suggests that for the purposes of the Convention the metropolitan territory and its dependent territories are to be treated as separate units [80]. Similarly, other articles of the Convention indicate that the metropolitan territory is to be treated as distinct such as Articles 15, 17 to 24, 26, 19, 32 and 34 [81-88]. Issue (iii) The Respondents submission that the 2003 Memorandum was not a proper basis for the provision of the support for refugees required by the Convention is rejected [103]. There are uniquely close practical links between the SBAs and Cyprus [91-93]. The Convention does refer to the appropriate treatment of refugees in a States territory and the provision of facilities to refugees there. But nothing in the Convention is expressly directed to a situation like that which exists in Cyprus and nothing in it is expressly inconsistent with the nature of the arrangements which the UK has made with Cyprus [94]. International courts and tribunals will interpret a treaty in line with Article 31(1) of the Vienna Convention on the Law of Treaties. They will endeavour to place the factual situation as it has developed since the inception of the treaty within the context of the preserved and developing treaty relationship in order to achieve its object and purpose in so far as that is feasible [95]. Subject to issues about the precise interpretation of certain articles, the court does not find objection in principle to some, most or all of the supporting facilities required for refugees being provided by co-operative and effective arrangements with the Republic. The more difficult issues are as to its application to those already accepted as lawful refugees [96]. Issues (iv) and (v) have been left for future determination and further submissions. The parties may be able to reach agreement without further argument on those issues [104-114]. So far as they remain in dispute the appeal should be relisted for further submissions as soon as practicable [115].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0110.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0110.txt
new file mode 100644
index 0000000000000000000000000000000000000000..f1088bef4418e68c6e2f318a260fc7b12057c08e
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0110.txt
@@ -0,0 +1 @@
+The proper interpretation of point 1.14 requires a correct application of the guidance provided in the CJEU judgment [51]. In its preliminary ruling, the CJEU identified three cumulative criteria in defining MSM for the purposes of point 1.14: (1) the use of bones from which the intact muscles have already been detached, or of poultry carcases, to which meat remains attached; (2) the use of methods of mechanical separation to recover that meat; and (3) the loss or modification of the muscle fibre structure of the meat recovered through the use of those processes [26]. The CJEU added that any meat product which satisfies those three criteria must be classified as MSM, irrespective of the degree of loss or modification of the muscle fibre structure, provided the loss or modification is greater than that which is strictly confined to the cutting point (the cutting point qualification) [26]. In the Supreme Court, it was common ground between the parties that Newbys pork and chicken products meet the first two criteria for categorisation of MSM within point 1.14 [52]. The appeal thus turns on whether Newbys products meet criterion (3), in light of the cutting point qualification [52]. As identified in the courts below, there are two main possible readings of what the CJEU meant by cutting point: (1) on a narrower reading, it refers to the cutting of intact muscles, or (2) on a more expansive reading, it refers to the points at which the meat has been severed or separated during the process of recovering it [39]. Edwards-Stuart J favoured the more expansive reading [42-43], while the Court of Appeal preferred the narrower reading [45-46]. This Court finds that, on the proper interpretation of the CJEU judgment, the narrower reading is correct [51]. First, the way in which the CJEU formulated criterion (1) reflects the words removing meat from flesh-bearing bones after boning or from poultry carcases in point 1.14 [54]. The CJEUs formulation speaks of meat remaining attached to poultry carcases, rather than simply referring to poultry carcases, which would include all (not merely some of) the meat on the carcase [55]. Secondly, the CJEU clearly held that the concept of MSM does not depend on it being shown that the process referred to in point 1.14 results in a loss or modification of the muscle fibre structure which is significant, rejecting outright Newbys case [56]. On the CJEUs approach, the dividing line is much clearer. Meat removed from a carcase will not be MSM if it is removed by mechanical means in the first phase of cutting meat from the whole carcase, but will generally be MSM if it is later removed by mechanical means [57]. This clear distinction avoids the need for microscopic investigation [57]. Thirdly, the legal analysis is not affected by evidence (1) that chicken carcases will occasionally be subjected to Newbys process without the breasts first being removed or (2) that the wishbone is usually cut out of the breast meat before mechanical removal of whole chicken breasts [61-63]. Lastly and importantly, the CJEU judgment made it explicit that, applying the definition in point 1.14, Newbys products fall to be categorised as MSM [66]. The CJEU was entitled to express its view on the application of point 1.14 to this case and there is nothing to call into question its analysis [69-75]. After the CJEU judgment, the position is acte clair and no further reference to the CJEU is needed [76]. The Court reaches the above conclusions having seen, but not relied on, further evidence submitted by three of the four interveners [49-50]. The Court refuses permission to admit this further evidence due to unfairness to the FSA and, in any event, this evidence is not considered to affect the outcome [50].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0115.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0115.txt
new file mode 100644
index 0000000000000000000000000000000000000000..711e476325e3676b17d37020ad4b6ebfc3d20ae1
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0115.txt
@@ -0,0 +1 @@
+Part VI of the Road Traffic Act 1988 applies in this appeal. Section 145 requires there to be an insurance policy against third party risks in relation to the use of the vehicle by the particular driver, while section 151(5) requires the insurer to satisfy any judgment falling within section 151(2), subject to certain conditions. Under section 151(2)(b), an insurer who has issued a policy in relation to the use of a vehicle is liable on a judgment, even where it was obtained against an uninsured driver. [3] The MIB has entered into agreements with the Secretary of State to compensate third party victims of road accidents not even covered by section 151(2)(b). This means victims suffering personal injury or property damage caused by (1) uninsured vehicles and (2) drivers who cannot be traced. Clause 4(d) of the 2003 Untraced Drivers Agreement (the 2003 Agreement) is applicable in Ms Camerons case. [4] It is a fundamental feature of the statutory scheme of compulsory insurance in the UK that it does not confer on victims a direct right of recovery against an insurer for the underlying liability of the driver. The only direct right against the insurer is the right to require it to satisfy a judgment against the driver, under section 151, once the drivers liability has been established in legal proceedings. Consistent with this approach, the 2003 Agreement assumes that judgment cannot be obtained against the driver if he cannot be identified, and therefore the only recourse is against the MIB, not the insurer. [5, 22] The general rule remains that proceedings may not be brought against unnamed parties, as is implicit in the limited exceptions contemplated by the Civil Procedure Rules (CPR) [9]. The main exceptions are: (1) possession actions against trespassers, (2) actions and orders where some of the wrongdoers were known so they could be sued both personally and as representing their unidentified associates and (3) the wider jurisdiction recognised in Bloomsbury Publishing Group Plc v News Group Newspapers Ltd [2003] 1 WLR 1633 (Ch) [10]. The key distinction is between two classes of unnamed defendant cases: (1) anonymous defendants who are identifiable but whose names are unknown and (2) defendants, such as in most hit and run drivers, who are not only anonymous but cannot even be identified. In category (1), defendants are described in such a way that it is at least possible to locate or communicate with them, and to determine whether they are the person described in the claim form. In category (2), this is not possible. [13] This appeal is not directly concerned with service it is about the issue or amendment of the claim form but the legitimacy of issuing or amending can be tested against the possibility of service [14]. An identifiable but anonymous defendant can be served, if necessary by CPR r.6.15 alternative service [15]. Interim injunction cases can fall in category (1), because the process of enforcing the injunction will sometimes be enough to bring the proceedings to the defendants attention, as in Bloomsbury [15]. However, an unknown person is not identified simply by referring to past actions [16]. Proceedings against such a person (in category (2)) offend the fundamental principle of justice that a person cannot be made subject to the jurisdiction of the court without having such notice of the proceedings as will enable a fair hearing [17-18]. While CPR r.6.15 permits alternative service, the mode of service should be such as can reasonably be expected to bring the proceedings to the defendants attention [20-21]. Applying these principles to the present appeal, alternative service against an unidentifiable person referred to in the proceedings only by a pseudonym or description cannot be justified. In particular, ordinary service on the insurer would not constitute service on the driver, and alternative service could not be expected to reach the driver of the Micra. Nor would it be appropriate to dispense with service under CPR r.6.16 in a case where it could not be shown that the defendant knew of the proceedings. [21-26] As to the EU law issue on the Sixth Motor Insurance Directive, the Supreme Court considers no point on the Directive arises because: (1) Ms Cameron is not trying to assert a direct right against the insurer for the underlying wrong (her claim is for damages from the driver) and (2) it is consistent with the Directive to require a claim against the MIB, not the insurer, in this class of case [27-30].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0160.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0160.txt
new file mode 100644
index 0000000000000000000000000000000000000000..bc975522a32343b00764b01d17a52a76cb6a5bea
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0160.txt
@@ -0,0 +1 @@
+The word highway has no single meaning in the law [6]. The default land law position, that the conveyance of freehold land automatically involves the transfer of the entire vertical plane, was not followed in successive statutory provisions dealing with automatic vesting of highway interests formerly in private ownership, as seen in the decision in Tunbridge Wells Corpn v Baird [1896] AC 434 (HL) (the Baird principle) [7-8]. The Baird principle provides that such a transfer was limited to the road surface, the subsoil immediately beneath it and airspace sufficient to enable use and enjoyment by the public and maintenance by the highway authority [9]. The limits set by the Baird principle reflected concerns about expropriation of private property without compensation resulting from statutory vesting [11]. It was, rightly, common ground that the Baird principle applies to section 263 of the 1980 Act, replicating section 226 of the Highways Act 1959 (the 1959 Act) [12]. However, section 265 of the 1980 Act and its predecessors make provision for the transfer of property and liabilities, as between successive highway authorities, of highways designated as trunk roads [13]. The first major property transfer scheme was undertaken in relation to newly designated trunk roads by section 7 of the Trunk Roads Act 1936 (the 1936 Act) [15]. Despite differences in language, the substance of section 228 of the 1956 Act and section 265 of the 1980 are materially the same as section 7 of the 1936 Act [16-19]. The extent of transfer of highway rights is complicated by the fact that local highway authorities often acquire property rights in relation to highways by means other than automatic vesting under section 263, such as compulsory purchase and acquisition by private treaty and, at times, for non-highway purposes [21]. Ownership of airspace above and subsoil below the zone of ordinary use may also be of substantial commercial or development value, particularly in urban areas like Central London [22]. Disagreeing with the Court of Appeal, the Supreme Court decides that the Baird principle does not apply to article 2 of the Transfer Order or to section 265 of the 1980 Act, upon which article 2 was modelled [28]. The words [t]he highway, in so far as it is vested in the former highway authority in article 2, properly construed, mean only that part of the vertical plane relating to a GLA road which was vested in the relevant council on the operative date, in its capacity as former highway authority, is transferred [29]. The Supreme Court disagrees with the Court of Appeals reasoning that the word highway, used in article 2 and section 265, has a clear common law meaning it is not a defined term and its meaning in this context is to be found through the almost identical wording of section 265 on trunk roads [31-33]. Given the different ancestry of, and purposes served by, section 263 and section 265 of the 1980 Act, the word highway used in both provisions cannot be given the same meaning [34-36]. The phrase beginning with in so far as in section 265(1)(a) of the 1980 Act, and in article 2, imports the ownership capacity limitation [37-39]. The Courts approach, like that of the arbitrator, largely avoids irrational types of multi-layering on the vertical plane in the sense of different highway authorities owning parts of the vertical plane in the same highway [40-43]. Further, expropriation concerns are not well-founded because, generally, the transfer of property from one highway authority to another is simply the quid pro quo for relief from responsibility for operation and maintenance [48]. Lastly, there is no presumption or burden of proof as to the extent of highway rights transferred [49-50]. This decision does not resolve any issues as to the ownership of the lateral plane of a highway [51].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0214.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0214.txt
new file mode 100644
index 0000000000000000000000000000000000000000..09168641377c72919bf5544bfca30c78df8502e1
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2017-0214.txt
@@ -0,0 +1 @@
+Since the enactment of the 1623 Statute of Monopolies, the purpose of a grant of a patent has been to encourage innovation. The patent bargain is this: the inventor obtains a monopoly in return for disclosing the invention and dedicating it to the public for use after the monopoly has expired [53]. This overarching principle has survived the amendment of UK patent law after accession to the European Patent Convention [54]. In addressing the statutory question of obviousness in section 3 of the 1977 Act it is common for English courts to adopt the so-called Windsurfing/Pozzoli structure [60]. An alternative approach which the EPO often adopts is the so called problem-and-solution approach [61]. While both approaches focus on the inventive concept put forward in the claims, neither approach should be applied in a mechanistic way [62]. The question of obviousness must be considered on the facts of each case [63]. Factors which are relevant considerations in the present case include the following [64]. First, it is relevant to consider whether at the priority date something was obvious to try, in other words whether it was obvious to undertake a specific piece of research which had a reasonable or fair prospect of success [65]. Secondly, it follows that the routine nature of the research and any established practice of following such research through to a particular point may be a relevant consideration [66]. Thirdly, the burden and cost of the research programme is relevant [67]. Fourthly, the necessity for and the nature of the value judgments which the skilled team would have in the course of a testing programme are relevant considerations [68]. Fifthly, the existence of alternative or multiple paths of research will often be an indicator that the invention contained in the claim or claims was not obvious [69]. Sixthly, the motive of the skilled person is a relevant consideration. The notional skilled person is not assumed to undertake technical trials for the sake of doing so but rather because he or she has some end in mind [70]. Seventhly, the fact that the results of research which the inventor actually carried out are unexpected or surprising is a relevant consideration as it may point to an inventive step [71]. Eighthly, the courts have repeatedly emphasised that one must not use hindsight, which includes knowledge of the invention, in addressing the statutory question of obviousness [72]. Ninthly, it is necessary to consider whether a feature of a claimed invention is an added benefit in a context in which the claimed innovation is obvious for another purpose [73]. A tenth consideration is the nature of the invention. In this case, the Court is concerned with a dosage patent with a Swiss- form claim and an EPC 2000 claim. The possibility that a dosage patent with such claims may be valid has been recognized both by the EPO and in the United Kingdom courts [74]. In the present dispute, the Court considers that the balance or symmetry in patent law and the pre- established or at least readily foreseeable target of the skilled teams tests hold the key to its resolution. The prior art discloses an invention - that is the use of tadalafil in the treatment of ED - in a manner which enables the skilled person to perform it. The task which the notional skilled team would undertake was that of implementing patent EP 0 839 040 (the Daugan patent), which was the nearest prior art. The Daugan patent had disclosed that doses of tadalafil for the treatment of ED will generally be in the range of 0.5mg to 800mg daily for the average adult patient. The target of the skilled team would be to ascertain the appropriate dose, which would usually be the lowest effective dose. The skilled team would know of that target from the outset of its research. The pre-clinical and clinical tests involved familiar and routine procedures and normally progressed to the discovery of the dose- response relationship in Phase IIb [105]. In this case the trial judges findings of what would have been the sequence of the tests, which did not depend upon hindsight, included the finding, which the evidence clearly justified, that the team, having found a therapeutic plateau, would be very likely to test lower doses and so come upon the dosage regime which is the subject matter of the patent [105]. The Court considers that the Court of Appeal was entitled to treat the judges failure to appreciate the logical consequences of the finding - that it was very likely that the skilled team would continue the testing - as an error of principle which allowed an appellate court to carry out its own evaluation [82]. As such, the Court is satisfied that the Court of Appeal was entitled to interfere with the trial judges assessment of obviousness and to hold that the 181 patent was invalid for lacking an inventive step [105].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2018-0030.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2018-0030.txt
new file mode 100644
index 0000000000000000000000000000000000000000..d61f6ab5e23a32e283ce3e41d317017f0680e157
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2018-0030.txt
@@ -0,0 +1 @@
+The Court notes that acts by the Secretary of State for Northern Ireland or by departments in Westminster do not come within the purview of section 24 of the 1998 Act. For a devolution issue to arise, it must be shown that an act or function has been carried out by a Northern Ireland minister or department, and that the act in question is invalid by reason of s. 24 [6]. The prohibitions in s. 24 are disjunctive: it is forbidden to make, confirm or approve any subordinate legislation, or to do any act, so far as the legislation or act is incompatible with the ECHR. Acts ancillary to the enactment of subordinate legislation are thus in principle capable of being caught by s. 24. It is therefore possible, on a theoretical or technical level, to consider that the Departments provision of the postcode lists in question amounts to such an ancillary act [11]. There are, however, two reasons that the provision of such lists cannot be said to raise a devolution issue. First, as the Court held in AGNIs reference [2019] UKSC 1, where the Attorney General sought to refer to this court a devolution issue that arose in parallel pending proceedings, it was considered not to be appropriate to accept the reference. The same holds true here: a challenge to the universal credit provisions will come before this court shortly on appeal from a decision of the English Court of Appeal. It will be open to the Attorney General to apply to intervene in that appeal [12]. Second, the fundamental underpinning of the Attorney Generals case is that the introduction of universal credit in Northern Ireland by act of the Secretary of State is incompatible with the ECHR. It is not that the Departments act in identifying the areas where universal credit is to be introduced that is incompatible. The publication of the lists itself is not an act sufficient to give rise to an incompatibility with the ECHR. For a devolution issue under Schedule 10 to arise, it must be shown that the departmental act under challenge is capable of being incompatible with the ECHR. Because the publication of lists is not in itself capable of giving rise to an incompatibility, it is not appropriate to accept a reference under paragraph 34 [13 14].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2018-0099.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2018-0099.txt
new file mode 100644
index 0000000000000000000000000000000000000000..2d447e1a71ba4a7cc540c246fae9d22f117686dc
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2018-0099.txt
@@ -0,0 +1 @@
+Section 73 of the 1990 Act envisages two situations: either (a) the grant of a new permission unconditionally or subject to revised conditions, or (b) refusal of permission, leaving the existing permission in place with its conditions unchanged. It does not say what is to happen if the authority wishes to change some conditions but leave others in place. Government guidance indicating that to assist with clarity planning decisions under section 73 should also repeat the relevant conditions from the original planning permission was given as advice, rather than as a statement about the legal position [13]. Whatever the legal character of the document in question, the starting point for interpretation is to find the natural and ordinary meaning of the words there used, viewed in their particular context and in the light of common sense [19]. The 2014 permission needs to be seen through the eyes of a reasonable reader, who is assumed to start by taking the document at face value [28]. The wording of the operative part of the grant are clear and unambiguous. The Council approves an application for the variation of condition as set out below, which is followed by precise and accurate descriptions of the relevant development, of the condition to be varied, and of the permission under which it was imposed. That is followed by statements of the Original wording, then of the Proposed wording, the latter stating in terms that the store is to be used for the sale of non-food goods only. The obvious and only natural interpretation of those parts of the document is that the Council was approving what was applied for: the variation of one condition from the original wording to the proposed wording, in effect substituting one for the other. There is nothing to indicate an intention to discharge the condition altogether, or to remove the restriction on the sale of food goods [29]. If section 73 gave no power to grant a permission in the form described, the logical consequence would be that there was no valid grant at all, not that there was a valid grant free from the proposed condition. There is no issue now as to the validity of the grant as such, and all parties agree there was a valid permission for something. That being the common position, the document must be taken as it is [32]. It has been normal and accepted usage to describe section 73 as conferring power to vary or amend a condition, so the reasonable reader would not see any difficulty in giving effect to the 2014 permission in the manner authorised by the section i.e. as the grant of a new permission subject to the condition as varied. The absence of a reason for the condition does not affect its validity [33]. There are some internal inconsistencies in the second part of the notice, but reading the document as a whole, the second part can be given a sensible meaning without undue distortion. It is explanatory of and supplementary to the first part. The permitted development incorporating the amended condition is acceptable but only subject to the other conditions set out. In other words, they are additional conditions [34-35]. This appeal is not concerned with the status of the conditions in the 2010 permission, but the courts provisional view is that the 2010 conditions were not incorporated into the new permission, but continued to have effect under the 2010 permission, so far as they are consistent with anything in the new grant. The conditions remain valid and binding because there was nothing in the new permission to affect their continued operation [37-38]. Nothing in the present judgment is intended to detract from the advice, contained in the decision by Sullivan J in R (Reid) v Secretary of State for Transport [2002] EWHC 2174 (Admin), at paragraph 59, that it is highly desirable that all the conditions to which the new planning permission will be subject should be restated in the new permission and not left to a process of cross-referencing [42].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2018-0131.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2018-0131.txt
new file mode 100644
index 0000000000000000000000000000000000000000..7a403fd7ecdc731bca871b1c2c9ebe7a6e877382
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2018-0131.txt
@@ -0,0 +1 @@
+A patent reflects a bargain between the inventor and the public. The inventor gains a time-limited monopoly over the making and use of a product. In return, the public gains the ability to make the product after the expiry of the monopoly. As part of this bargain, the inventor must publish sufficient information to enable a skilled member of the public to make the product. This ensures that patent holders only gain legal protection which is proportional to their actual technical contribution to the art, and encourages inventors to conduct research for the benefit of society [23]. The Court of Appeal was influenced by the fact that Regenerons invention is a principle of general application. Its contribution to the field was present not only in mice which could be made in 2001, but also in mice with a larger amount of human genetic material which could be made using later scientific developments. The Court of Appeal thought it was unfair to limit Regenerons monopoly to types of hybrid mice which could be made when the patent was filed [27]. However, the authorities establish a number of principles in this area. Patentees must not make overly broad claims [56(iii)]. If they claim the right to make a range of products, sufficiency means they must disclose enough information to enable a skilled person to make the full range which is claimed [56(iv)]. This means a relevant range which affects the utility of the product [56(vii)]. So Regeneron was not required to explain how to make mice of varying colours, or with tails of varying length, because these features do not affect a mouses ability to produce antibodies [21]. Applying these principles, Regenerons patents did not enable a skilled person to make mice containing more than a very small section of the human variable region. The amount of human material was an important factor which was thought to affect the diversity of useful antibodies which the mice would produce. Mice at the more valuable end of the range could not be made using Regenerons patents. So Regeneron was claiming a monopoly which was far wider than its contribution to the art [57]. The Court of Appeal upheld patents over a range of mice even though Regeneron could only make mice over a small part of the range, at the least beneficial end of the range with the smallest amount of human genetic material [58]. Its analysis watered down the sufficiency requirement which is a bedrock of patent law, tilting the balance of patent law in favour of patentees and against the public [59]. Therefore, the majority allows the appeal and holds that the patents are invalid for insufficiency. Lady Black gives a dissenting judgment, in substance agreeing with the Court of Appeal. The application of the sufficiency requirement depends on the nature of the individual invention and the facts of the case. The Court of Appeal characterised Regenerons invention as a principle of general application which solved the problem of immunological sickness [83-84]. Seen in this way, the sufficiency requirement was met since the invention was deployed in each mouse across the range, irrespective of the quantum of human material incorporated [86].
\ No newline at end of file
diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2018-0132.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2018-0132.txt
new file mode 100644
index 0000000000000000000000000000000000000000..9fad1f36e76426dc5c54af6a82424ffc32e2cdd8
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2018-0132.txt
@@ -0,0 +1 @@
+In order to succeed in his claim in the tort of negligence, Mr Watkins had to establish a negligent breach of duty, causation and loss. The trial judge found that there had been a negligent breach of duty and that causation was established. Neither conclusion has been appealed [22]. To succeed, therefore, Mr Watkinss estate must prove loss, specifically that in losing the opportunity to pursue the claim Mr Watkins lost something of value, i.e. that his services claim had a real and substantial rather than merely a negligible prospect of success [23]. Mr Watkinss original claim was within the Scheme, and it is therefore necessary to consider whether the claim was of more than negligible value within the context of that Scheme [25]. The expert report was concerned with causation, not loss, and was prepared to assist in the assessment of whether Mr Watkinss failure to pursue a services claim arose from negligent advice or from an inability to assert truthfully that he had lost the ability to perform activities that would qualify him for a services award [27]. As a result, the expert was instructed not to apply the presumption used under the Scheme [28]. Had Mr Watkins pursued a services claim it would have proceeded on the basis of the Schemes procedures. He would have had to undergo only a limited second medical examination and there would have been no equivalent of the experts report. His entitlement to a services award would have been decided by the application of the Schemes presumption. There was no justification for considering a further medical examination and report which would not have been commissioned under the Scheme and therefore the judge erred in taking this into account [29]. Given other findings in the expert report, the court is unable to accept that the services claim had no chance of success so that the lost claim was of no value [30]. The first-instance judge should have proceeded to assess the value of the lost claim on a loss of opportunity basis. The court therefore dismisses the appeal and remits the matter for that assessment [32].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2018-0140.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2018-0140.txt
new file mode 100644
index 0000000000000000000000000000000000000000..ac91e8089f86d67cd3be147cc0bcf1b0082a5362
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2018-0140.txt
@@ -0,0 +1 @@
+Lord Kerr, with whom Lord Wilson, Lady Black and Lord Kitchin agree First, the Court notes that Lord Dyson in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 made it clear that there is no difference between a detention that is unlawful because there was no statutory power to detain and a detention that is unlawful because the decision to detain was made in breach of a rule of public law. Here, as in Lumba, there was no statutory power to detain. The 2004 Order upon which the decision to deport was based was ruled unlawful in EN (Serbia). As detention was for the express purpose of facilitating deportation, without a lawful deportation order the occasion for detention simply does not arise [17]. Second, detention is entirely dependent on the decision to deport. DNs detention was uniquely linked to the deportation order. Without a lawful decision to deport, the question of detention cannot arise, much less be legal [18, 20]. The lawfulness of detention is always referable back to the legality of the decision to deport, and this is not an instance of a series of successive steps, each having an independent existence. For this reason, the Court does not accept the argument that the independent judicial decision made in statutory appeals (per section 82 of the 2002 Act) is a step removing the legal error in question. The rubric, chain of causation is inapposite in this context [19]. The Court considers that Draga was wrongly decided, for the reasons given by Lord Carnwath. Further, the Court considers that, if and insomuch as Ullah suggests that paragraph 2(2) of Schedule 3 of the 1971 Act provides stand-alone authority for lawful detention, no matter what has gone before and irrespective of the fact that the decision to deport lacks legal basis, that decision too was wrong. Lord Carnwath Lord Carnwath agrees with Lord Kerrs judgment, but adds his thoughts, particularly on the issue of res judicata / issue estoppel, which was not discussed in argument but which to his mind could provide a complete answer in similar cases in the future [1]. Lord Carnwath agrees that the decision to detain in this case was directly dependent on the deportation decision and that, as such, DNs claim for damages comes clearly within the Lumba principle, unless excluded by some specific rule of law. No such rule emerges from the reasons of the Court of Appeal in Draga or from submissions for the Secretary of State [9-10]. Lord Carnwath considers Draga was wrongly decided for two reasons. First, Pill LJs suggested grounds for distinguishing R v Governor of Brockhill Prison, Ex p Evans (No 2) [2002] 2 AC 19 are unpersuasive: it could not be said that the Secretary of State was acting within the four corners of a court order relating to the applicants detention. Rather, the decision of the tribunal related only to deportation [11-12]. Second, Pill LJs reliance on the second actor theory was misplaced: where the Secretary of State is directly responsible for making the order later found to be unlawful, it would be odd if it could rely on it to support the validity of later actions based on it [12]. Finally, Lord Carnwath considers that issue estoppel, if argued, could have provided the answer to this appeal. DNs private law claim for damages depended on the lawfulness of the deportation decision at the time it was made. That issue was conclusively determined by the decision of the tribunal in August 2007 and the decision of the High Court rejecting the application for review. DN had the opportunity to challenge the legality of the original deportation decision by reference to the invalidity of the 2004 Order, but did not do so. Hence, he would be estopped from challenging it at a later date [30]. However, since the Secretary of State did not rely on res judicata, it would be unfair to DN for the court to introduce it at this stage [37].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2018-0154.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2018-0154.txt
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index 0000000000000000000000000000000000000000..502ec8abc5948d7f1f07e23f87f2d2db6b8b9d22
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@@ -0,0 +1 @@
+Visa and Mastercard appeal on four grounds. First, whether the Court of Appeal was wrong to find that there was a restriction of competition in the acquiring market contrary to article 101(1) TFEU and equivalent national legislation (the restriction issue). Second, whether the Court of Appeal found, and if so was it wrong in finding, that Visa and Mastercard were required to satisfy a more onerous evidential standard than that normally applicable in civil litigation, in order to establish that their MIFs were exempt under article 101(3) (the standard of proof issue). Third, whether the Court of Appeal was wrong to find that in order to show that consumers receive a fair share of the benefits generated by the MIFs, to satisfy the test under article 101(3), Visa was required to prove that the benefits provided to merchants alone as a result of the MIFs outweighed the costs arising from the MIFs, without taking any account of the benefits received by cardholders as a result of the MIFs (the fair share issue). Fourth, whether the Court of Appeal found and, if so, was it wrong in finding, that a defendant has to prove the exact amount of loss mitigated in order to reduce damages (the broad axe issue). Finally, AAM seek to cross-appeal on the issue of whether the Court of Appeal was wrong to remit the AAM proceedings for reconsideration in relation to exemption under article 101(3) (the remission issue) [40]-[41]. The restriction issue The restriction issue raises two issues for consideration: (i) whether the Court is bound by the Mastercard CJ decision; and (ii) if not, whether that decision ought to be followed [48]. The appellants argue that the Court of Appeal was wrong to conclude that it was bound by Mastercard CJ to find that there was a restriction of competition in the acquiring market contrary to article 101(1) TFEU and equivalent national legislation because Mastercard CJ is factually distinguishable [68]-[72]. The Supreme Court concludes that Mastercard CJ is binding and the Court of Appeal was correct so to hold. The essential factual basis upon which the Court of Justice held that there was a restriction on competition in Mastercard CJ is mirrored in these appeals [93]-[94]. Even if the Court were not bound by Mastercard CJ, the Supreme Court would follow it and conclude that there was a restriction on competition in the present cases. The effect of the collective agreement to set the MIF is to fix a minimum price floor for the MSC. That minimum or reservation price is non-negotiable. Acquirers have no incentive to compete over it. It is a known common cost which acquirers know they can pass on in full and do so. Merchants have no ability to negotiate it down. A significant portion of the MSC is thereby immunised from competitive bargaining and is determined by collective agreement rather than by competition. By contrast, in the counterfactual, in which there is no MIF but settlement at par, the whole of the MSC is open to competitive bargaining and determined by competition [95]-[104]. The Court therefore dismisses the appeal on the restriction issue [105]. The standard of proof issue On the standard of proof issue, the appellants submit that the Court of Appeal was wrong to conclude that, in relation to article 101(3), there is a specific requirement for robust and cogent evidence, which is a more onerous standard than the normal domestic civil standard of proof on the balance of probabilities, and that there is a legal requirement for facts and empirical data [106]. It is common ground that to justify the restriction on competition the burden of satisfying that the four conditions set out in article 101(3) lies on the defendant; the present issue relates to the standard of proof [107]. Visa and Mastercard submit that in the Commercial Court proceedings the judges adopted diverging views on the standard of proof [108]. The Court of Appeal considered that EU law requires cogent factual and empirical evidence to satisfy article 101(3) [109]. The Court considers that the essential complaint made by Visa and Mastercard here does not relate to the standard of proof but rather to the nature of the evidence required to meet the standard of proof in this context and, more specifically, the type of evidence needed to establish that the benefits from the MIF rules under consideration outweigh the detriments to merchants [115]. In the Courts view, article 101(3) imposes requirements as to the nature of the evidence that can discharge the burden to establish an exemption under that provision, which is imported into domestic competition law by the 1998 Act. Cogent empirical evidence is required to carry out the required evaluation of the claimed efficiencies and benefits [116]. The Court therefore dismisses the appeal on the standard of proof issue [138]. The fair share issue On the fair share issue, Visa challenges the decision of the Court of Appeal, which interpreted Mastercard CJ as meaning that in a two-sided market situation such as in the present case, if the restriction causes disadvantages overall to the consumers in the market under consideration (here the merchants in the acquiring market), those disadvantages cannot be compensated by advantages to consumers in the other market (the cardholders in the issuing market), unless the two groups of consumers are substantially the same, which is not the position here [144]. The Supreme Court finds that the Court of Appeal arrived at the correct decision, albeit by different reasoning. The best available guidance from the CJEU on the application of the fair share requirement is the opinion of the Advocate General Mengozzi in Mastercard CJ, which considered that the fair share of the benefits must be received by the consumers in the same market. The Court therefore dismisses the appeal on the fair share issue [171]-[174]. The broad axe issue The broad axe issue relates to the degree of precision required in the quantification of mitigation of loss where a defendant to a claim for damages arising out of a breach of competition law asserts that the claimant has mitigated its loss through the passing on of all or part of an overcharge to its customers [175]. Mastercard submitted that it must prove that the merchants passed on some of the overcharge to their customers but the quantification of the pass-on did not have to be precise if precision could not reasonably be achieved [179]. The claims of the merchants in these appeals are for compensatory damages for loss caused to them by the tortious acts of Visa and Mastercard in breach of their statutory obligations under the 1998 Act [182]. In such circumstances, EU law allows a member state to lay down procedural rules governing actions that safeguard rights derived from EU law, provided the rules comply with the principles of equivalence and effectiveness. The only constraint on national law at the relevant time was the principle of effectiveness, which requires that the domestic rules do not make it practically impossible or excessively difficult to exercise rights guaranteed by EU law [188]. In the UK, pass-on is an element in the quantification of damages that is required by the compensatory principle and required to prevent double recovery through claims in respect of the same overcharge by a direct purchaser and by subsequent purchasers in a chain [196]-[197]. Visa and Mastercard have the burden of establishing that the merchants have recovered the costs incurred in the MSC but, once the defendants have raised the issue of mitigation, in the form of pass-on, there is a heavy evidential burden on the merchants to provide evidence [216]. The degree of precision requires a balance between achieving justice by precisely compensating the claimant and dealing with disputes at a proportionate cost [217]. The law does not require unreasonable precision in the proof of the amount of the loss that the merchants have passed on to suppliers and customers [225]. The Supreme Court does not interpret the Court of Appeal as having held that the defendants had to prove the exact amount of the loss mitigated, but insofar as the Court of Appeal required a greater degree of precision in the quantification of pass-on from Visa and Mastercard than from the merchants, the Court erred. As a result, the appeal succeeds on the broad axe issue [226]. The remission issue The cross-appeal relates only to the AAM proceedings [227]. AAM submit that the Court of Appeal erred in remitting the AAM proceedings for reconsideration of the exemption under article 101(3). Despite reaching the correct conclusion that Mastercards defence based on article 101(3) should have been dismissed, the Court of Appeal made an order remitting the AAM proceedings to the CAT, alongside the other two sets of proceedings, for reconsideration of whether Mastercards case under article 101(3) should have succeeded in whole or in part [232]-[233]. AAM submit that it was not open to the Court of Appeal to so order and to permit the issue to be re-opened by Mastercard, and that it offended against the principle of finality in litigation [235]. In the Supreme Courts judgment, the Court of Appeal was wrong to allow Mastercard to re-open this issue, which it had lost after a full and fair trial. It offends against the strong principle of public policy and justice that there should be finality in litigation [237]. Accordingly, AAMs cross-appeal is allowed [247].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2018-0164.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2018-0164.txt
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index 0000000000000000000000000000000000000000..9d34eb1511bf5ff322cd33136f10ddfb52116cb6
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@@ -0,0 +1 @@
+Before one person can be made vicariously liable for the torts of another, two elements must be shown. First, there must be a relationship between the two persons which makes it proper for the law to make one pay for the fault of the other. Second, there must be a sufficient connection between that relationship and the wrongdoing of the person who committed the tort. This case concerns the first element [1]. Historically, and leaving aside relationships such as agency and partnership, the relationships that could give rise to vicarious liability were limited to that between an employee and an employer [1]. Accordingly, Barclays case is that, since Dr Bates was an independent contractor and not a Barclays employee, it cannot be held liable for his wrongdoing. As Lord Bridge of Harwich said in D & F Estates Ltd v Church Comrs [1989] AC 177 at 208, It is trite law that the employer of an independent contractor is, in general, not liable for the negligence or other torts committed by the contractor in the course of the execution of the work [7]. The claimants, on the other hand, argue that the law has been broadened by the Supreme Court decisions in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 (generally known as Christian Brothers), Cox v Ministry of Justice [2016] UKSC 10 and Armes v Nottinghamshire County Council [2017] UKSC 60. They say that these decisions have established a more nuanced approach, in which a range of factors are considered to determine whether or not it is fair, just and reasonable to impose vicarious liability in the circumstances of the case [8]. Lady Hale examines these three decisions in detail at [10-23], together with their precursor, the Court of Appeal decision in E v English Province of Our Lady of Charity [2012] EWCA Civ 938. The cases make it clear that a person can be held vicariously liable for the acts of someone who is not their employee, provided the relationship between them is sufficiently akin or analogous to employment. However, they do not erode the classic distinction between employment (and relationships that are akin or analogous to employment) on the one hand, and the relationship with an independent contractor on the other hand [24]. Two cases decided by common law courts since Christian Brothers have reached the same conclusion: namely, the Court of Appeals decision in Kafagi v JBW Group Ltd [2018] EWCA Civ 1157 and the Singapore Court of Appeals decision in Ng Huat Seng v Mohammad [2017] SGCA 58 [25-26]. In light of this, the question is, as it has always been, whether the person who committed the tort is carrying on business on his own account, or whether he is in a relationship akin to employment with the defendant. In doubtful cases, the five factors or incidents identified by Lord Phillips in Christian Brothers (reproduced at [15]) may help to identify a relationship which is sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability. But the key will usually lie in understanding the details of the relationship. Where it is clear that the person who committed the tort is carrying on his own independent business, it is not necessary to consider the five incidents [27]. On the facts, Dr Bates was not at any time an employee or anything close to an employee of Barclays. Rather, he was in business on his own account as a medical practitioner, with a portfolio of patients and clients. He did work for Barclays, which made the arrangements for the medical examinations and chose the questions to which it wanted answers, but much the same would be true of window cleaners or auditors. Dr Bates was not paid a retainer, which might have obliged him to accept a certain number of referrals from Barclays. He was paid a fee for each report and was free to refuse to conduct an offered examination. He no doubt carried his own medical liability insurance [28]. Lady Hale considers the relationship between the first element of the test for vicarious liability and the definition of worker in section 230(3) of the Employment Rights Act 1996. She concludes that asking whether or not a person is a worker who is not an employee within the definition in section 230(3)(b) may be helpful in identifying whether or not they are a true independent contractor, as opposed to being in a relationship akin to employment. However, she declines to align the common law concept of vicarious liability, developed for one set of reasons, with the statutory concept of worker, developed for quite a different set of reasons [29]. Accordingly, the Court allows the appeal and holds that Barclays is not vicariously liable for any assaults that Dr Bates is proved to have perpetrated in the course of the medical examinations he carried out for Barclays [30].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2018-0225.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2018-0225.txt
new file mode 100644
index 0000000000000000000000000000000000000000..728ba8fcc2b89cb17fb3b65863e2c9dc67fb417e
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2018-0225.txt
@@ -0,0 +1 @@
+There are two aspects to the argument of whether the sites of the ATMs are capable of identification as separate hereditaments [28]. First, with regard to the 2000 Regulations, the statutory assumption that certain plant (e.g. ATMs) has no effect on rateable value applies only to the valuation of the hereditament. It does not follow that this applies to the logically prior question of whether there is a hereditament that needs to be valued [33]. Second, previous case law establishes that a hereditament is a self-contained piece of property (i.e. property all parts of which are physically accessible from all other parts, without having to go onto other property) [34]. The Upper Tribunal was entitled to find that there should be no difficulty in defining the boundaries of fixed ATMs so as to satisfy the geographical test for self-containment [35], with the exception is the moveable ATM, which, as they found, had the qualities of impermanence and mobility [39]. The second question is whether the retailers or the banks were in rateable occupation of the ATMs [40]. A lodging house, which is treated as a single hereditament in the occupation of the landlord, is a useful example. While the landlords control of the premises does not interfere with, and indeed supports, the enjoyment by the lodgers of their own rooms for their own purposes, there is still only one hereditament in the occupation of the landlord [46]. On the facts the Upper Tribunal held that the retailers' retained occupation of the ATM sites but had conferred on the banks rights which substantially restricted the retailers use of those sites. This was because the presence of the ATMs furthered the retailers general business purposes and the operation of the ATMs provides the retailers with an income [48]. Both the parties derived a direct benefit from the use of the sites for the same purpose and shared the economic fruits of the activity for which the space was used. This is sufficient to support the conclusion that the internal ATMs remained in the occupation of the retailers [49]. External ATMs are to be treated the same as internal ones. That an external ATMs is available to a wider marker at all times, and is physically separated from the other facilities in the stores, does not detract from the Upper Tribunals finding that the retailers remained in occupation of the ATMs, nor that they were any less a part of the retailers businesses. The difference is no greater than the difference between an internal or external ATM in a bank building. Thus, the external ATMs remained in the rateable occupation of the retailers [52].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2019-0001.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2019-0001.txt
new file mode 100644
index 0000000000000000000000000000000000000000..18ab5b0990c0164961d05ed11dc4e92948218137
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2019-0001.txt
@@ -0,0 +1 @@
+Whether listing is conclusive of the items being buildings for the purposes of the Listed Buildings Act It is a principle that individuals affected by a legal measure should have a fair opportunity to challenge the measure and to vindicate their rights in court proceedings. In applying this principle, the context of the particular statutory scheme in question is relevant [20]. In the parallel context of breach of planning control, the statutory grounds of appeal are so wide that they include every aspect of the merits of the decision to serve an enforcement notice. It is hard to see why it should be any different in the context of a listed building enforcement notice. Indeed, the question of whether something is a building may raise difficult issues of factual judgment which an inspector appointed under the statutory scheme is more appropriately placed to decide than the High Court on judicial review [22]. Under the statutory scheme a listed building means a building which is included in [the] list. It is an essential element that the thing in issue be a building. If it is not in truth a building at all, there is nothing to say that the mere inclusion in the list will make it otherwise. Section 7 prohibits the demolition of a listed building, and s.9(1) makes contravention of that prohibition a criminal offence. But there is nothing to prevent the accused arguing that the item demolished is not a building and so not within the definition [24]. As such, the question of whether the thing listed is in fact a building can be considered by the inspector on a statutory appeal [25]. The enforcement appeal must be remitted to the First Respondent for redetermination [26]. The application for listed building consent can be dealt with by agreement [27]. The relevant test for a building There is a need for general guidance on the legal principles in play in determining whether something constitutes a building [28]. In Skerritts of Nottingham v Secretary of State for the Environment Transport and Regions [2000] JPL 1025 a three-fold test was adopted considering size, permanence and degree of physical attachment [46]. This case is important as the three-fold test was treated as of general application in the planning context [50]. Along with other jurisprudence, it indicated a move away from real property analogies. Lacking a preferable alternative, and as the same definition of building as was in issue in Skerritts was adopted in the Listed Buildings Act, it is difficult to see any reason in principle why the same test should not apply [52]. The application of this test to the items is something to be considered in the context of the remittal of the appeal to the First Respondent [58].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2019-0028.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2019-0028.txt
new file mode 100644
index 0000000000000000000000000000000000000000..f4ef72b026fb64a08e8de6ddcd884817622e32ab
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2019-0028.txt
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+Section 134 CJA implements in domestic law certain obligations of the United Kingdom pursuant to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (UNCAT) [16]. Accordingly, the wording of section 134 CJA must bear the same meaning as in article 1 UNCAT. The principles governing the interpretation of treaties are to be found in articles 31 and 32 of the Vienna Convention on the Law of Treaties 1969 (VCLT) [23]. The ordinary meaning of the words describes a person performing official administrative or governmental functions and provides no suggestion that those functions must be performed on behalf of the government of a State [25]. The object of UNCAT was not to outlaw torture but rather to strengthen the prohibition that already exists in international law [27]. The drafting history indicates that torture committed by public officials for purposes connected with their public functions was considered different in nature from, and inherently more serious than, that inflicted by a private person. The conduct of rebels exercising governmental functions over the civilian population of territory under its control is properly the concern of the international community and falls within this rationale [36]. The appellants suggested reading gives rise to a number of anomalies concerning issues of recognition of States and governments. The offence applies without distinction between recognised and unrecognised States. Similarly, resort to State practice in the recognition or non-recognition of governments cannot provide a uniform standard by which the Convention can be applied [56-59]. The majority concludes that a person acting in an official capacity in section 134(1) CJA includes a person who acts or purports to act, otherwise than in a private and individual capacity, for or on behalf of an organisation or body which exercises, in the territory controlled by that organisation or body and in which the relevant conduct occurs, functions normally exercised by governments over their civilian populations. Furthermore, it covers any such person whether acting in peace time or in a situation of armed conflict [76]. The exercise of a governmental function, which is a core requirement, must be distinguished from purely military activity not involving any governmental function [77-78]. It is necessary to look at the reality of any particular situation. The question is whether the entity has established a sufficient degree of control, authority and organisation to become an authority exercising official or quasi-official powers, as opposed to a rebel faction or mere military force [79]. In the light of further evidence from the prosecutions expert witness regarding the nature of the NPFLs control over the relevant territory, it is necessary for this matter to be remitted to the judge to reconsider whether there is sufficient evidence to enable a properly directed jury to conclude that the appellant was acting in an official capacity [80]. Lord Reed dissents from the majoritys reasoning and finds the appellants arguments more persuasive [82]. The ordinary meaning of the phrase does not extend to a member of an insurgent group engaged in armed insurrection against the government of the country. The core idea is that the person is acting on behalf of the State [83]. The reference to lawful sanctions later in article 1 supports the view that it is concerned with conduct for which the State bears responsibility [84]. If torture carried out by insurgents in territory under their de facto control falls within the scope of article 1, then article 2(1) UNCAT, which requires each State Party to take measures to prevent acts of torture in any territory under its jurisdiction, imposes an obligation with which States cannot comply, since they cannot take effective measures in relation to territory they do not control [85]. The problem which UNCAT was intended to address was the reluctance of states to investigate and prosecute torture in which their authorities were themselves involved [87-88]. A number of States Parties have adopted a definition in their domestic law based on the understanding that article 1 is confined to situations where the responsibility of state authorities is engaged [90]. In relatively recent times, there appears to have been a development in the CATs interpretation of article 1. Accordingly, even if article 1 might now be interpreted as extending to the actions of non-state entities, it does not follow that it should be interpreted in the same way when considering the criminality of actions that took place in 1990 [95-98]. Finally, criminal legislation whose meaning is unclear should be given a restrictive rather than an expansive interpretation [98].
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diff --git a/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2020-0042.txt b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2020-0042.txt
new file mode 100644
index 0000000000000000000000000000000000000000..9bbc69e8870bd924d1c923c3dc2d345aaeeba66b
--- /dev/null
+++ b/UK-Abs/test-data/summary/segment-wise/reasons/uksc-2020-0042.txt
@@ -0,0 +1 @@
+Government policy The Secretary of State designated the ANPS under section 5(1) of the Planning Act 2008 (the PA 2008) [12]. Section 5(7) of the PA 2008 provides that national policy frameworks such as the ANPS must give reasons for the policy adopted. Section 5(8) states that these reasons must include an explanation of how that policy takes account of existing Government policy relating to the mitigation of and adaptation to climate change [25]. The Court rejects Plan B Earths argument that the reasons in the ANPS needed to refer to the Paris Agreement Targets in order to comply with section 5(8). The March 2016 statements of Andrea Leadsom MP and Amber Rudd MP and the formal ratification of the Paris Agreement do not mean that the Governments commitment to the Paris Agreement constitutes Government policy in the sense in which that term is used in the statute [102]. The meaning of Government policy is a matter of interpretation of the statutory provision [101]. The phrase needs to be construed relatively narrowly in context to allow section 5(8) to operate sensibly. Otherwise it would create a bear trap for civil servants and ministers, who would have to consider all ministerial statements given in any context which might be characterised as policy in a broad sense [105]. The Court explains that Government policy in the context of section 5(8) refers to carefully formulated written statements of policy which have been cleared by the relevant departments on a Government-wide basis [105]. The epitome of Government policy is a formal written statement of established policy. The absolute minimum standard is a statement which is clear, unambiguous, and devoid of relevant qualification [106]. The Court does not consider that the statements of Andrea Leadsom MP and Amber Rudd MP meet this minimum standard. They were not clear, did not refer to the Paris Temperature Targets at all, and did not explain how the Paris Agreement goal of net zero emissions would be incorporated into UK law [106]. The lower courts were asked to consider whether international treaties which have been formally ratified but have not been incorporated into domestic law such as the Paris Agreement are Government policy. FoE and Plan B Earth did not maintain that argument in the Supreme Court. As the Court explains, international treaties are binding only as a matter of international law and do not have an effect in domestic law. Treaty commitments continue whether or not a particular Government remains in office and do not constitute a statement of Government policy for the purposes of domestic law [108]. Section 1 of the Climate Change Act 2008 (the CCA 2008) sets a national carbon target. Section 4 obliges the Government to establish carbon budgets for the UK [6]. These are already more demanding than the limits which the UK is currently obliged to have in place under the Paris Agreement [71]. The Court holds that, at the point the ANPS was designated in June 2018, there was no established Government policy on climate change beyond that already reflected in the CCA 2008 [111]. Sustainable development Section 10(2) and (3) of the PA 2008 requires the Secretary of State to designate national policy frameworks with the aim of contributing to the achievement of sustainable development. He has to take into account the environmental, economic and social objectives that make up sustainable development. He must, in particular, have regard to the desirability of mitigating and adapting to climate change [26],[115]. The Court dismisses FoEs argument that the Secretary of State breached this duty on the ground that he failed to have proper regard to the Paris Agreement when designating the ANPS. The evidence shows that the Secretary of State took the Paris Agreement into account and, to the extent that its obligations were already covered by the measures in the CCA 2008, ensured that these were incorporated into the ANPS framework [123]-[125]. Insofar as the Paris Agreement might in future require steps going beyond the current measures in the CCA 2008, the Secretary of State took it into account but decided that it was not necessary to give it further weight in the ANPS [126],[129]. The weight to be given to a particular consideration is a matter which falls within the discretion of the decision-maker, in this case the Secretary of State. His exercise of discretion is lawful unless the decision made is so unreasonable that no reasonable decision-maker would have made it [121]. That could not be said to be the case here [128]. The ANPS was carefully structured to ensure that when HAL applied for development consent to construct the runway, it would have to show at that stage that the development would be compatible with the up-to-date requirements under the Paris Agreement and the CCA 2008 measures as revised to take account of those requirements [87]-[89], [123]-[124]. Post-2050 and non-CO emissions The Court dismisses FoEs argument that the Secretary of State separately breached his section 10 duty by failing to have regard to, firstly, the effect of greenhouse gas emissions created by the NWR scheme after 2050 and, secondly, the effect of non-CO emissions [151],[156],[166]. The UKs policy in respect of the Paris Agreements global goals, including the post-2050 goal for greenhouse gas emissions to reach net zero, was in the course of development in June 2018 [154]. The Secretary of State did not act irrationally in deciding not to assess post-2050 emissions by reference to future policies which had yet to be formulated [155]. The Secretary of States department was also still considering how to address the effect of non-CO emissions in June 2018 [166]. The Court further holds that future applications for development consent regarding the NWR scheme will be assessed against the emissions targets and environmental policies in force at that later date rather than those set out in the ANPS [157], [166]. Environmental report Section 5(3) of the PA 2008 requires the Secretary of State to produce an appraisal of sustainability in respect of frameworks such as the ANPS [28]. This is also required by EU law. Council Directive 2001/42/EC of 27 June 2001 (the SEA Directive) as transposed into domestic law by the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004/1633), requires the Secretary of State to produce an environmental report in respect of major plans and proposals such as the ANPS [28]. The report must include information about relevant environmental protection objectives established at the international, EU or domestic level and the way that they have been taken into account during the preparation of the plan as may reasonably be required (Article 5 and Annex I to the SEA Directive) [57],[58]. The appraisal of sustainability accompanying the ANPS was intended to meet both the domestic and EU requirements for an appraisal of sustainability and environmental report respectively. The Court dismisses the respondents complaint that the appraisal of sustainability accompanying the ANPS was defective because it did not refer to the Paris Agreement [139]. Emphasising that the purpose of these reports is to provide the basis for informed public consultation [137], it holds that an unduly legalistic approach should not be taken when assessing their adequacy [143]. Whether a report provides a sound and sufficient basis for public consultation is a matter that falls within the Secretary of States discretion and the exercise of this discretion will only be found unlawful if it is one that no reasonable decision-maker would have made [144]. Were this discretion removed, public authorities might adopt an excessively defensive and counterproductive approach by including so much detail that the public would be unable to comment effectively, contrary to the object of the SEA Directive [146]. In this instance, the targets set out in the CCA 2008, which were referred to in the appraisal of sustainability, took the UKs obligations under the Paris Agreement sufficiently into account [149]. The Court therefore upholds this ground of appeal as well [150].
\ No newline at end of file
diff --git a/UK-Abs/train-data/judgement/uksc-2009-0047.txt b/UK-Abs/train-data/judgement/uksc-2009-0047.txt
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+I have had the advantage of reading in draft the opinion which has been prepared by Lord Mance, and I agree with it.
+For the reasons he gives, I would dismiss the appeal.
+LORD RODGER
+I too have had the advantage of considering in draft the opinion prepared by Lord Mance.
+I agree with it and, for the reasons which he gives, I would dismiss the appeal.
+LORD MANCE
+The appellant, Mr Louca, is a Cypriot national whose arrest in England and surrender to the Federal Republic of Germany for trial of six alleged offences of tax evasion is sought by the Office of the Public Prosecutor of Bielefeld pursuant to a European Arrest Warrant dated 14 July 2008.
+The warrant was on that date certified by the Serious Organised Crime Agency (SOCA) pursuant to s.2(7) of the Extradition Act 2003.
+Mr Louca challenges its validity on the ground that it contains no reference to two previous European arrest warrants (likewise certified by SOCA), but refers only to a domestic German arrest warrant.
+A reference to any previous European arrest warrants, was, he submits, essential under s.2(2)(a) and (4)(b) of the 2003 Act, which, read together, require a warrant to contain particulars of any other warrant issued in the category 1 territory for the persons arrest in respect of the offence.
+Senior District Judge Workman rejected Mr Loucas challenge on 11 September 2008, and the Divisional Court, in a judgment given by Dyson LJ, dismissed his appeal on 27 November 2008.
+The two previous European arrest warrants were issued and in turn superseded in a manner that appears not uncommon in relation to requests by overseas authorities for the arrest of suspects in England.
+The first warrant was dated 14 September 2006 and led to Mr Loucas arrest on 9 April 2008.
+Shortly thereafter it was withdrawn, Mr Louca was discharged from further proceedings on it, and a second warrant dated 23 April 2008 was issued on which Mr Louca was again arrested on 25 April 2008.
+That warrant amplified the description of Mr Loucas alleged involvement in the offences and contained other minor changes.
+It was in turn withdrawn, Mr Louca was again discharged from any proceedings on it, and it was replaced by the subsisting warrant dated 14 July 2008, upon which Mr Louca was again arrested and which is now before the Supreme Court.
+The wording of the subsisting warrant differs from that of the second warrant only in the insertion of the words which I have italicised in the time frame and places of commission given for the alleged offences: From a few days before the 23rd April 2003, till the 8th of April 2004 and Minden, Seckenhausen and other places in the Federal Republic of Germany, including the borders of Germany.
+Part I of the 2003 Act, in which s.2 appears, falls to be read in the context of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between member states of the European Union (2002/584/JHA; OJ 2002 L190, pl).
+This is a ground breaking measure intended to simplify and expedite procedures for the surrender, between member states, of those accused of crime committed in other member states or required to be sentenced or serve sentences for such crimes following conviction in other member states: Dabas v High Court of Justice of Madrid, Spain [2007] UKHL 6; [2007] 2 AC 31, para. 4, per Lord Bingham of Cornhill.
+Although article 34(2)(b) of the Treaty on European Union makes framework decisions binding upon member states as to the result to be achieved but [leaves] to national authorities the choice of form and methods, a national court must interpret a national law as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with article 34(2)(b): para. 5, per Lord Bingham citing Criminal Proceedings against Pupino (Case C 105/03); [2006] QB 83, paras. 43 and 47.
+The Framework Decision provides inter alia: Article 1(1): The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.
+Article 2(1): A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.
+Article 8(1): The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex: (a) the identity and nationality of the requested person; the name, address, telephone and fax numbers and e mail address (b) of the issuing judicial authority; evidence of an enforceable judgment, an arrest warrant or any other (c) enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2; the nature and legal classification of the offence, particularly in (d) respect of Article 2; a description of the circumstances in which the offence was (e) committed, including the time, place and degree of participation in the offence by the requested person; the penalty imposed, if there is a final judgment, or the prescribed (f) scale of penalties for the offence under the law of the issuing Member State; (g) if possible, other consequences of the offence.
+The annexed form contains boxes for completion, including: (b) Decision on which warrant is based: 1.
+Arrest warrant or judicial decision having the same effect: .
+Type: . 2.
+Enforceable judgement: .
+Reference: . and (f) Other circumstances relevant to the case (optional information): (NB This could cover remarks on extraterritoriality, interruption of periods of time limitation and other consequences of the offence)
+In the present case, box (b) of the form was completed in the European arrest warrant (as in the two withdrawn warrants) with a reference to a domestic warrant issued by the Bielefeld County Court reference 9Gs 2740/06 dated 27 July 2006 for Mr Loucas imprisonment on remand.
+In Ruiz v Central Criminal Court of Criminal Proceedings No 5 of the National Court, Madrid [2007] EWHC 2983 (Admin); [2008] 1 WLR 2798, Dyson LJ in an obiter dictum rejected a prosecution submission that the enforceable judgment, etc. [referred to in article 8(1)(c) of the Framework Decision] is the domestic warrant on which the index EAW is based (para. 26).
+The words in article 8(1)(c) coming within the scope of Articles 1 and 2 in his view precluded that submission, on the basis that Articles 1 and 2 were only concerned with European arrest warrants.
+The actual decision was that article 8(1)(c) and s.2(4)(b) were only concerned with currently enforceable warrants.
+However, Dyson LJs view that they were also only concerned with European arrest warrants was adopted in Zakowski v Regional Court in Szczecin Poland [2008] EWHC 1389 (Admin).
+That was a case on s.2(6)(c) of the 2003 Act, which mirrors the language of s.2(4) in relation to the situation of a person unlawfully at large after conviction.
+Maurice Kay LJ, with whom Penry Davey J agreed, held that s.6(2)(c) should be construed as referring only to other EAWs issued in respect of the offence (paras. 25 26).
+In his judgment in the present case, Dyson LJ reconsidered the position and concluded that the interpretation of ss.2(4)(b) and 2(6)(c) proposed in Ruiz and adopted in Zakowski was wrong.
+His reasoning covered five points: (i) the Framework Decision does not in article 8(1)(c) use the phrase European arrest warrant, as it does consistently elsewhere when referring to such a warrant; (ii) the concepts of an enforceable judgment, an arrest warrant or any other enforceable judicial decision cannot easily be understood as limited to an European arrest warrant; (iii) the phrase coming within the scope of Articles 1 and 2 can and should simply be understood as meaning that the enforceable judgment, arrest warrant or other enforceable judicial decision must be for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order and be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months; (iv) one European arrest warrant is most unlikely to be based on another, and (v) there is no point in requiring such a warrant to contain information about an earlier European arrest warrant on which it is not based, and on which reliance is no longer placed.
+On this basis, the present Divisional Court held that article 8(1)(c) and ss.2(4)(b) and 2(6)(c) are concerned with domestic judgments, arrest warrants or other decisions, and not with any other European arrest warrant issued in respect of the alleged offending, still less one which has been withdrawn.
+Before the House in July 2009, Mr Conor Quigley QC had to accept the first part of this conclusion inevitably so, in my view, in the light of the first four reasons given by Dyson LJ and also having regard to article 8(1)(c) of and box (b) in the form annexed to the Framework Decision.
+It is entirely understandable that the Framework Decision should require a European arrest warrant to set out its jurisdictional basis in the domestic law of the issuing state.
+Mr Quigley submitted, nonetheless, that the latter part of the Divisional Courts decision does not follow, and challenged Dyson LJs fifth reason.
+There is a purpose, he argued, in also requiring evidence of any other European arrest warrant, even if withdrawn, because this could constitute the basis of, or be relevant to, a decision by the executing court to set aside or consider whether to set aside the subsisting European arrest warrant as an abuse of process.
+He relied upon the statement by Bingham LJ, as he was, in R vs Liverpool Stipendiary Magistrates ex p. Ellison [1990] RTR 220, 227 that: If any criminal court at any time has cause to suspect that a prosecutor may be manipulating or using the procedures of the court in order to oppress or unfairly to prejudice a defendant before the court, I have no doubt that it is the duty of the court to inquire into the situation and ensure that its procedure is not being so abused.
+Usually no doubt such inquiry will be prompted by a complaint on the part of the defendant.
+But the duty of the court in my view exists even in the absence of a complaint.
+In support of these submissions, Mr Quigley pointed to various recitals in the Framework Decision.
+Under recital (8), the execution of the European arrest warrant must be subject to sufficient controls; under recital (10), its mechanism is based on a high level of confidence between Member States. and under recital (12), the Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union and does not prevent a Member State from applying its constitutional rules relating to due process.
+Mr Quigley noted that, under Article 8(1), The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex: . (g) if possible, other consequences of the offence.
+He suggested that, in order to give effect to all these provisions, ss.2(4)(b) and 2(6)(c) must be understood as embracing not only domestic judgments, warrants or decisions, but also prior European arrest warrants, even if withdrawn.
+Otherwise, mutual confidence would not be promoted and the executing court would not be able to inquire into whether there had been any abuse of process.
+In my opinion, this is to seek to make bricks without straw.
+The words if possible, other consequences of the offence and box (f) in the annexed form Other circumstances relevant to the case (optional information) do not carry the obligatory connotation for which Mr Quigley argues; the note to box (f) lends no support to Mr Quigleys case; and there is no reason to read ss.2(4)(b) and 2(6)(c) in the 2003 Act as intended to require the executing court to be informed by the European arrest warrant of one (and only one) point the existence of another European arrest warrant which might, in some conceivable case, be of some conceivable relevance to an argument of abuse of process.
+The duty which a criminal court may have, if prosecution authorities appear to be committing an abuse of process, is no basis for reading either the Framework Decision or the 2003 Act as requiring the inclusion in a European arrest warrant of that or any other information on which a defendant wishing to raise an argument of abuse of process might conceivably wish to rely.
+Ss.2(4)(b) and 2(6)(c) are designed on their face simply to give effect to article 8(1)(c) and box (b) in the annexed form.
+Other due process factors are comprehensively covered by ss.11 to 20, dealing with double jeopardy, extraneous considerations, passage of time, age, hostage taking considerations, speciality, earlier extradition to the United Kingdom and trial in absentia, as well as by the general safeguard in s.21 that the judge must decide whether surrender would be compatible with the European Human Rights Convention rights.
+The unreal consequences of the appellants argument in this particular case also need no stressing.
+Mr Louca was arrested under the previous European arrest warrants, and he and his advisers were fully aware at every stage of their issue and withdrawal.
+Their withdrawal and the changes made in successive warrants lend no support to any suggestion of abuse of process. (Arguments based on oppression due to passage of time and interference with the right to family life were mounted, unavailingly, in the courts below.) Mr Quigley was nevertheless compelled by his argument to submit that, however obvious it might be that the reason for the withdrawal of a previous European arrest warrant was technical or irrelevant to any question of abuse of process, a new European arrest warrant would be invalid unless it gave particulars of the previous warrant.
+The question certified by the Divisional Court is: Whether the reference to any other warrant in ss.2(4)(b) and 2(6)(c) of the Extradition Act 2003 properly construed is a reference to any other domestic warrant on which the European arrest warrant is based.
+For the reasons given above and those given by the Divisional Court, the answer is that the reference is to any domestic warrant on which the European arrest warrant is based, and not to any other European arrest warrant which may have been issued on the basis of any such domestic warrant.
+Mr Loucas appeal falls to be dismissed accordingly.
+LORD COLLINS
+appeal.
+LORD KERR
+I too agree with the opinion prepared by Lord Mance, and I would dismiss the I also agree with the opinion prepared by Lord Mance, and I would dismiss the appeal.
diff --git a/UK-Abs/train-data/judgement/uksc-2009-0057.txt b/UK-Abs/train-data/judgement/uksc-2009-0057.txt
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@@ -0,0 +1,782 @@
+These appeals raise the question as to the test which is to be applied when considering whether a gay person who is claiming asylum under the Convention relating to the Status of Refugees 1951, as applied by the 1967 Protocol (the Convention) has a well founded fear of persecution in the country of his or her nationality based on membership of that particular social group.
+The need for reliable guidance on this issue is growing day by day.
+Persecution for reasons of homosexuality was not perceived as a problem by the High Contracting Parties when the Convention was being drafted.
+For many years the risk of persecution in countries where it now exists seemed remote.
+It was the practice for leaders in these countries simply to insist that homosexuality did not exist.
+This was manifest nonsense, but at least it avoided the evil of persecution.
+More recently, fanned by misguided but vigorous religious doctrine, the situation has changed dramatically.
+The ultra conservative interpretation of Islamic law that prevails in Iran is one example.
+The rampant homophobic teaching that right wing evangelical Christian churches indulge in throughout much of Sub Saharan Africa is another.
+The death penalty has just been proposed in Uganda for persons who engage in homosexual practices.
+Two gay men who had celebrated their relationship in a public engagement ceremony were recently sentenced to 14 years imprisonment in Malawi.
+They were later pardoned in response to international pressure by President Mutharika, but he made it clear that he would not otherwise have done this as they had committed a crime against the countrys culture, its religion and its laws.
+Objections to these developments have been greeted locally with derision and disbelief.
+The fact is that a huge gulf has opened up in attitudes to and understanding of gay persons between societies on either side of the divide.
+It is one of the most demanding social issues of our time.
+Our own government has pledged to do what it can to resolve the problem, but it seems likely to grow and to remain with us for many years.
+In the meantime more and more gays and lesbians are likely to have to seek protection here, as protection is being denied to them by the state in their home countries.
+It is crucially important that they are provided with the protection that they are entitled to under the Convention no more, if I may be permitted to coin a well known phrase, but certainly no less.
+Background
+The appellants are both gay men.
+HJ, who is 40 years old, is an Iranian.
+He claimed asylum on arrival in the United Kingdom on 17 December 2001.
+He practised homosexuality in Iran and has continued to do so in the United Kingdom.
+HT, who is 36 years old, is a citizen of Cameroon.
+He claimed asylum following his arrest at Gatwick on 19 January 2007.
+He had presented a false passport while in transit to Montreal.
+He too is a practising homosexual.
+Both appellants claim that they have a well founded fear that they would be persecuted if they were to be returned to their home countries.
+The Secretary of State for the Home Department (the respondent) refused asylum in both cases.
+HJs appeal against that decision was dismissed by the Asylum and Immigration Tribunal on 15 August 2005.
+On 26 July 2006 the Court of Appeal remitted his case to the Tribunal for reconsideration: J v Secretary of State for the Home Department [2006] EWCA Civ 1238, [2007] Imm AR 73.
+On 8 May 2008, following reconsideration, his appeal remained dismissed.
+HTs appeal to the Tribunal was dismissed on 29 October 2007.
+Reconsideration was ordered on 14 November 2007 on the ground that the Tribunal might have made an error of law in the test to be applied to a gay person seeking asylum.
+But on 5 June 2008 Senior Immigration Judge Warr held that the earlier determination was not flawed, and he did not proceed to a reconsideration of the evidence.
+The appellants appealed against these decisions to the Court of Appeal.
+On 10 March 2009 the Court of Appeal (Pill and Keene LJJ and Sir Paul Kennedy) dismissed both appeals: [2009] EWCA Civ 172.
+The Secretary of State accepted that practising homosexuals are a particular social group for the purposes of article 1A of the Convention.
+The issue was how those who had a well founded fear of persecution could be identified.
+It was said by counsel for the appellants to be whether it was an answer to a claim for refugee status for the applicant to be required to conceal his sexual identity in order to avoid harm of sufficient severity as to amount to persecution the proposition being that to impose such a requirement was incompatible with the Convention.
+For the Secretary of State it was submitted that the issue always was whether the applicant could reasonably be expected to tolerate the need for discretion on return: para 7.
+The Court of Appeal applied the test stated by Maurice Kay LJ in J v Secretary of State for the Home Department [2007] Imm AR 73, para 16, where he said that the tribunal would have to ask itself whether discretion was something that the applicant could reasonably be expected to tolerate, not only in the context of random sexual activity but in relation to matters following from, and relevant to, sexual identity in the wider sense.
+In HJs case the Court of Appeal held that the Tribunal were entitled to conclude on the evidence that HJ could reasonably be expected to tolerate conditions in Iran: [2009] EWCA Civ 172, para 31.
+In HTs case there was finding that he would be discreet on return to Cameroon.
+The question whether he could reasonably be expected to tolerate a life involving discretion was not raised.
+The Court of Appeal held that there were no facts on which a decision on that matter could be based but that the Tribunal were entitled to find that HT had not established that there was a real risk of persecution in the future: paras 44, 45.
+In this court Mr Bourne for the Secretary of State submitted that the test of whether the appellants should have refugee status was correctly stated by the Court of Appeal in J v Secretary of State for the Home Department [2007] Imm AR 73, that it was correctly applied by the Tribunal in both cases and that the Court of Appeal was right to dismiss the appeals.
+Mr Husain QC for HJ said that the test as stated in J v Secretary of State for the Home Department is misconceived.
+He submitted that it is contrary to the ordinary meaning of the definition of refugee in the Convention, and the objects and purposes of the treaty, to deny a refugees claim on the basis that he was required to suppress or surrender his protected identity to avoid the persecution that would ensue if that identity were to be disclosed.
+Miss Carss Frisk QC for HT too disputed the test in Js case.
+She submitted that if the applicant could show that he had a well founded fear of persecution he was entitled to refugee status.
+He should not be required to demonstrate that concealment of his identity was something that he could not reasonably be expected to tolerate.
+She also said that HT ought to succeed on the facts in any event because of what happened to him in Cameroon.
+Background
+Article 1A(2) of the Convention provides that a refugee is a person who owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country Amongst the benefits that a person who satisfies that definition enjoys under the Convention is the prohibition of expulsion or return.
+Article 33(1) provides: No Contracting State shall expel or return (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.
+To a large extent the meaning of the definition in article 1A(2) is common ground.
+It treats membership of a particular social group as being in pari materia with the other Convention reasons for persecution: Fornah v Secretary of State for the Home Department [2006] UKHL 46, [2007] 1 AC 412, para 20, per Lord Bingham of Cornhill.
+There is no doubt that gay men and women may be considered to be a particular social group for this purpose: Islam v Secretary of State for the Home Department; R v Immigration Appeal Tribunal, Ex p Shah [1999] 2 AC 629, 643 644, per Lord Steyn.
+As Lord Rodger points out in para 42, regulation 6(1)(e) of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI 2006/2525) recognises as clearly as can be that a group based on a common characteristic of sexual orientation may be included in a particular social group that is in need of international protection.
+The group is defined by the immutable characteristic of its members sexual orientation or sexuality.
+This is a characteristic that may be revealed, to a greater or lesser degree, by the way the members of this group behave.
+In that sense, because it manifests itself in behaviour, it is less immediately visible than a persons race.
+But, unlike a persons religion or political opinion, it is incapable of being changed.
+To pretend that it does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny the members of this group their fundamental right to be what they are of the right to do simple, everyday things with others of the same orientation such as living or spending time together or expressing their affection for each other in public.
+The Convention does not define persecution.
+But it has been recognised that it is a strong word: Sepet and Bulbul v Secretary of State for the Home Department [2003] UKHL 15, [2002] 1 WLR 856, para 7, per Lord Bingham.
+Referring to the dictionary definitions which accord with common usage, Lord Bingham said that it indicates the infliction of death, torture or penalties for adherence to a belief or opinion, with a view to the repression or extirpation of it.
+Article 9(1)(a) of the EC Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees (the Qualification Directive) states that acts of persecution must (a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a).
+In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, para 40, McHugh and Kirby JJ said: Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to state sponsored or condoned discrimination in social life and employment.
+Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it.
+To constitute persecution for the purposes of the Convention the harm must be state sponsored or state condoned.
+Family or social disapproval in which the state has no part lies outside its protection.
+As Professor J C Hathaway in The Law of Refugee Status (1991), p 112 has explained, persecution is most appropriately defined as the sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognised by the international community.
+The Convention provides surrogate protection, which is activated only upon the failure of state protection.
+The failure of state protection is central to the whole system: Horvath v Secretary of State for the Home Department [2001] 1 AC 489, 495.
+The question is whether the home state is unable or unwilling to discharge its duty to establish and operate a system for the protection against persecution of its own nationals.
+The reference in the preamble to the Universal Declaration of Human Rights of 1948 shows that counteracting discrimination was a fundamental purpose of the Convention.
+Article 2 states: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
+Lord Steyn emphasised this point in Islam v Secretary of State for the Home Department; R v Immigration Appeal Tribunal, Ex p Shah [1999] 2 AC 629, 639.
+He also drew attention to the first preamble to the Declaration, which proclaimed the inherent dignity and the equal and inalienable rights of all members of the human family.
+No mention is made of sexual orientation in the preamble or any of its articles, nor is sexual orientation mentioned in article 1A(2) of the Convention.
+But coupled with an increasing recognition of the rights of gay people since the early 1960s has come an appreciation of the fundamental importance of their not being discriminated against in any respect that affects their core identity as homosexuals.
+They are as much entitled to freedom of association with others of the same sexual orientation, and to freedom of self expression in matters that affect their sexuality, as people who are straight.
+The guarantees in the Universal Declaration are fundamental to a proper understanding of the Convention.
+But the Convention itself has, as the references in para 12 show, a more limited purpose.
+It is not enough that members of a particular social group are being discriminated against.
+The contracting states did not undertake to protect them against discrimination judged according to the standards in their own countries.
+Persecution apart, the Convention was not directed to reforming the level of rights prevailing in the country of origin.
+Its purpose is to provide the protection that is not available in the country of nationality where there is a well founded fear of persecution, not to guarantee to asylum seekers when they are returned all the freedoms that are available in the country where they seek refuge.
+It does not guarantee universal human rights.
+So the conditions that prevail in the country in which asylum is sought have no part to play, as matter of legal obligation binding on all states parties to the Convention, in deciding whether the applicant is entitled to seek asylum in that country: Januzi v Secretary of State for the Home Department [2006] UKHL 5, [2006] 2 AC 426, paras 16, 46.
+As Laws LJ said in Amare v Secretary of State for the Home Department [2005] EWCA Civ 1600, [2006] Imm AR 217 para 31: The Convention is not there to safeguard or protect potentially affected persons from having to live in regimes where pluralist liberal values are less respected, even much less respected, than they are here.
+It is there to secure international protection to the extent agreed by the contracting states.
+Thus international protection is available only to those members of the particular social group who can show that they have a well founded fear of being persecuted for reasons of their membership of it who, owing to that fear, are unwilling to avail themselves of the protection of their home country.
+Those who satisfy this test cannot be returned to the frontiers of a territory where their life or freedom would be threatened on account of their membership of that group: article 33(1).
+To be accorded this protection, however, the test that article 1A(2) sets out must first be satisfied.
+As Lord Bingham of Cornhill said in Januzi v Secretary of State for the Home Department [2006] 2 AC 426, para 5, the words owing to well founded fear of being persecuted for reasons of membership of a particular social group in the definition of refugee express a causative condition which governs all that follows.
+Well founded fear: the causative condition
+In situations such as those presented by these appeals the fact that members of the particular social group are persecuted may not be seriously in issue.
+In Iran, where the death penalty exists, persons have been hanged simply because they are gay.
+In Cameroon homosexuality is illegal and the sanctions for it include sentences of up to five years imprisonment.
+Although prosecutions are rare, homosexuals are liable to be denounced and subjected to acts of violence and harassment against which the state offers no protection.
+But the situation in the country of origin is only the beginning, not the end, of the inquiry.
+The Convention directs attention to the state of mind of the individual.
+It is the fear which that person has that must be examined and shown to be well founded.
+In cases where the fear is of persecution for reasons of religion or political opinion, it may be necessary to examine the nature and consequences of any activity that the applicant claims he or she may wish to pursue if returned to the country of nationality.
+It will not be enough for the person merely to assert that persons who are of that religion or political opinion are liable to be persecuted.
+The question is, what will the applicant actually do, and does what he or she will in fact do justify the fear that is complained of?
+INLR 1, 7 8 Simon Brown LJ said: In Ahmed (Iftikhar) v Secretary of State for the Home Department, [2000] In all asylum claims there is ultimately a single question to be asked: is there a serious risk that on return the applicant will be persecuted for a Convention reason? The critical question [is]: if returned, would the asylum seeker in fact act in the way he says he would and thereby suffer persecution? If he would, then, however unreasonable he might be thought for refusing to accept the necessary restraint on his liberties, in my judgment he would be entitled to asylum.
+Nobody has suggested that there is anything wrong with these observations, as far as they go, and I would respectfully endorse them.
+They contain two propositions which the Secretary of State in this case accepts, and which I do not think can be disputed.
+The first is that attention must be focused on what the applicant will actually do if he is returned to his country of nationality.
+The second is that the fact that he could take action to avoid persecution does not disentitle him from asylum if in fact he will not act in such a way as to avoid it.
+That is so even if to fail or to refuse to avoid it would be unreasonable.
+In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, para 40, per McHugh and Kirby JJ said that persecution does not cease to be persecution for the purposes of the Convention because the harm can be avoided by taking avoiding action within the country of origin.
+I am inclined to think that this proposition, as stated, expresses the point too broadly.
+But I would accept it as accurate if at the end there were added the words which the applicant will in fact not take.
+Of course, I do not mean by this that persecution ceases to be persecution if those at risk of being persecuted can and do eliminate the harm by taking avoiding action.
+That is a different point, with which their Honours go on to deal later in the same paragraph.
+How to define the test for its application is the issue in this case: see paras 21 and 22.
+It has been recognised, of course, that an applicant may be required to live in a place of relocation within his country of origin so long as it would not be unduly harsh for him to be required to do so: Januzi v Secretary of State for the Home Department [2006] 2 AC 426.
+As Lord Bingham explained in para 7, the Convention does not expressly address the situation where, within his country of nationality a person has a well founded fear of persecution at place A, where he lived, but not at place B, where he could reasonably be expected to relocate.
+But that situation may reasonably be said to be covered by the causative condition to which he referred in para 5.
+A person will be excluded from refugee status if under all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country.
+Persons seeking refuge from the process known as ethnic cleansing, for example, may be refused asylum on the basis that there are other parts of the country of their nationality where they may live without being persecuted: see also R (Yogathas) v Secretary of State for the Home Department [2002] UKHL 36, [2003] 1 AC 920, para 40; the UNHCR Handbook, para 91.
+Mr Bourne suggested that an analogy could be drawn between internal relocation, or internal flight as it is sometimes less happily called: see R (Yogathas) v Secretary of State for the Home Department [2003] 1 AC 920, para 6.
+Mr Husain submitted in his written case that applicants who are gay and who avoid persecution by a modification of their behaviour may be said on return to have taken internal flight within the self to avoid persecution.
+Mr Bourne submitted that any such analogy supported the respondent.
+The analogy, as he expressed it in his written case, was put this way.
+A person to whom geographical internal flight is available is not a refugee unless it would be unduly harsh to take such flight.
+So a person who will, if necessary, take the metaphorical flight of hiding his sexuality is not a refugee unless it would be intolerable for him to do so.
+Examples were referred to of situations that might demonstrate the logic of this approach.
+They were said to include situations where the applicant would be discreet, there would be no real risk that he would come to the attention of the authorities and suffer persecution and the consequences of his discretion were objectively reasonable for him to be expected to tolerate.
+He would have no well founded fear of persecution and not be a refugee even if the reason why he would be discreet was because, or partly because, he feared persecution.
+This submission takes me to the core of the issue between the parties and to the question whether the test in para 16 of J v Secretary of State for the Home Department [2007] Imm AR 73 stands up to examination.
+But I think that the suggested analogy with internal relocation can be dismissed at once as incompatible with the principles of the Convention.
+The objection to it is that it assumes that the applicant will be prepared to lie about and conceal his sexual orientation when he moves to the place of relocation.
+Unless he does this he will be no better off than he would be if he did not relocate at all.
+The misconception lies in the idea that he will be willing and able to make a fresh start when he moves to somewhere where he is not known.
+In Hysi v Secretary of State for the Home Department [2005] EWCA Civ 711, [2005] INLR 602 the Court of Appeal held that the tribunal had not assessed the consequences of expecting the applicant to lie and dissemble in the place of relocation about his ethnic origins.
+He would have to be a party to the long term deliberate concealment of the truth, living in continuing fear that the truth would be discovered: para 37.
+There is no place, in countries such as Iran and Cameroon, to which a gay applicant could safely relocate without making fundamental changes to his behaviour which he cannot make simply because he is gay.
+The submission that it is proper to examine the question whether it would be objectively reasonable for the applicant to be expected to tolerate some element of concealment I would prefer not to use the word discretion, as this euphemistic expression does not tell the whole truth when he is returned to the country of his nationality cannot be dismissed so easily.
+Behaviour which reveals ones sexual orientation, whether one is gay or straight, varies from individual to individual.
+It occupies a wide spectrum, from people who are naturally reticent and have no particular desire to establish a sexual relationship with anybody to those who wish, for various reasons, to proclaim in public their sexual identity.
+Social and family disapproval of overt sexual behaviour of any kind, gay or straight, may weigh more heavily with some people than others.
+Concealment due to a well founded fear of persecution is one thing.
+Concealment in reaction to family or social pressures is another.
+So one must ask why the applicant will conduct himself in this way.
+A carefully nuanced approach is called for, to separate out those who are truly in need of surrogate protection from those who are not.
+The test in J's case
+In J v Secretary of State for the Home Department [2007] Imm AR 73 the applicant was of Iranian nationality.
+The Asylum and Immigration Tribunal found that he was a practising homosexual, but that his relationship with his partner in Iran was discreet and that his homosexual practices there had never been such that his own homosexual activity was reasonably likely to result in adverse attention from the authorities.
+It was held that the tribunal had fallen into error by not asking why the applicant had acted discreetly, especially as the appellant said in his witness statement that he was forced to hide his relationship and was not able to live openly with his partner as he wanted to do.
+The case was remitted to the tribunal for further reconsideration.
+In para 16 Maurice Kay LJ gave the following directions to the tribunal: It will have to address questions that were not considered on the last occasion, including the reason why the appellant opted for discretion before his departure from Iran and, by implication, would do so again on return.
+It will have to ask itself whether discretion is something that the appellant can reasonably be expected to tolerate, not only in the context of random sexual activity but in relation to matters following from, and relevant to, sexual identity in the wider sense recognised by the High Court of Australia (see the judgment of Gummow and Hayne JJ at para 83).
+This requires consideration of the fact that homosexuals living in a stable relationship will wish, as this appellant says, to live openly with each other and the discretion which they may feel constrained to exercise as the price to pay for the avoidance of condign punishment will require suppression of many aspects of life that related to, or informed by, their sexuality (ibid, para 81).
+This is not simply generalisation; it is dealt with in the appellants evidence. [Emphasis added] Buxton LJ, making the same point, said in para 20 that the applicant might have to abandon part of his sexual identity in circumstances where failure to do so exposed him to the extreme danger that the country guidance indicated: The Tribunal may wish to consider whether the combination of those two circumstances has an effect on their decision as to whether the applicant can be expected to tolerate the situation he may find himself in when he returns to Iran. [Emphasis added]
+The passages which I have italicised lie at the heart of the argument.
+For the Secretary of State, Mr Bourne submitted that there were two major questions that had to be addressed: (1) what will the situation be on return, and (2) in these circumstances is there a real risk of persecution? The inquiry in regard to the first question was directed to how the applicant will conduct himself and how others will react to this.
+He accepted that a finding that the applicant will in fact be discreet on return to the country of his nationality is not the end of the inquiry.
+The question that then had to be asked, he said, was whether opting for discretion itself amounted to persecution.
+The threshold between what was and was not persecution was marked by what he could reasonably be expected to tolerate.
+As in the case of internal flight, it was what he could not reasonably be expected to tolerate that amounted to persecution.
+As the references to it in para 16 of J v Secretary of State for the Home Department [2007] Imm AR 73 indicate, the Court of Appeal in that case sought guidance from the decision of the High Court of Australia in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.
+Among the passages from that judgment that are quoted is para 40, where (setting out the paragraph in full) McHugh and Kirby JJ said: The purpose of the Convention is to protect the individuals of every country from persecution on the grounds identified in the Convention whenever their governments wish to inflict, or are powerless to prevent, that persecution.
+Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to state sponsored or condoned discrimination in social life and employment.
+Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it.
+But persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality.
+The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps reasonable or otherwise to avoid offending the wishes of the persecutors.
+Nor would it give protection to membership of many a particular social group if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution.
+Similarly, it would often fail to give protection to people who are persecuted for reasons of race or nationality if it was a condition of protection that they should take steps to conceal their race or nationality. [Emphasis added] It was the appearance in this paragraph of the sentence which I have italicised that led Maurice Kay LJ to use almost the same words when he was framing his directions in para 16.
+This can be seen from his quotation of it in para 11 of his judgment, where he said that it had been adopted in Z v Secretary of State for the Home Department [2005] Imm AR 75, para 12, Amare v Secretary of State for the Home Department [2006] Imm AR 217, para 27 and RG (Colombia) v Secretary of State for the Home Department [2006] EWCA Civ 57, [2006] Imm AR 297, para 16.
+Para 40 of the judgment in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 is not entirely easy to follow.
+The Convention does not permit, or indeed envisage, applicants being returned to the countries of their nationality on condition that they take steps to avoid offending their persecutors.
+The use of the phrase a condition of protection seems to overlook the fact that it is the country in which asylum is sought that is being appealed to for protection, not the country of the applicants nationality.
+But the flaw in the sentence in para 16 of J v Secretary of State for the Home Department [2007] Imm AR 73 to which the appellants take objection is indicated by the sentence that immediately follows it.
+It makes the point that persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality.
+In para 50, which the Court of Appeal did not quote in Js case, McHugh and Kirby JJ said: In so far as decisions in the Tribunal and the Federal Court contain statements that asylum seekers are required, or can be expected, to take reasonable steps to avoid persecutory harm, they are wrong in principle and should not be followed.
+The same point was made with perhaps greater force by Gummow and Hayne JJ in para 82, where they said: Saying that an applicant for protection would live discreetly in the country of nationality may be an accurate description of the way in which that person would go about his or her daily life.
+To say that a decision maker expects that that person will live discreetly may also be accurate if it is read as a statement of what is thought likely to happen.
+But to say that an applicant for protection is expected to live discreetly is both wrong and irrelevant to the task to be undertaken by the Tribunal if it is intended as a statement of what the applicant must do.
+The references in the judgments of Maurice Kay and Buxton LJJ in J v Secretary of State for the Home Department [2007] Imm AR 73, paras 16 and 20 to what the applicant could be expected to do when he returned do not fit happily with the approach indicated in some parts of the judgment in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 which they said they were following.
+The explanation for this may perhaps lie in para 10 of the judgment in Js case, where Maurice Kay LJ said: In our jurisdiction Buxton LJ demonstrated in Z v SSHD [2005] Imm AR 75 that the approach of the High Court of Australia had in turn been influenced by English authority, particularly Ahmed v SSHD [2000] INLR 1.
+Having referred to the judgment of Simon Brown LJ in Ahmed, he said at para 16: It necessarily follows from that analysis that a person cannot be refused asylum on the basis that he could avoid otherwise persecutory conduct by modifying the behaviour that he would otherwise engage in, at least if that modification was sufficiently significant to place him in a situation of persecution.
+In para 11 Maurice Kay LJ added this comment: That brief extract is particularly helpful because it brings together the principle articulated by the High Court of Australia and the underlying need for an applicant to establish that his case contains something significant in itself to place him in a situation of persecution.
+The principle which the Court of Appeal should have taken from the judgment of the High Court of Australia is that it would be wrong to say that an applicant for protection was expected to live discreetly if it was intended as a statement of what the applicant must do: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, para 82.
+The test of whether the situation he may find himself in on return was one that he could reasonably be expected to tolerate was introduced to address the high threshold that has to be crossed between what does and what does not amount to persecution.
+But the way the test was expressed in para 16 of Js case suggests that the applicant will be refused asylum if it would be reasonable to expect him to be discreet even if he is unwilling or unable to do this.
+That is a fundamental error.
+It conflicts with Simon Brown LJs observation in Ahmed (Iftikhar) v Secretary of State for the Home Department [2000] INLR 1, 8 that, however unreasonable the applicant might be thought for refusing to accept the necessary restraint on his liberties, he would be entitled to asylum.
+I would hold that the test in para 16 of Js case is not accurately expressed and should no longer be followed.
+For the reasons that Sir John Dyson gives, I would reject the reasonably tolerable test.
+As this was the test that the Court of Appeal applied to these appeals, its decision to dismiss them was mistaken and must be set aside.
+Comparative jurisprudence
+The Court was referred to a number of decisions in Australia, New Zealand, South Africa, the United States and Canada.
+I do not think that they reveal a consistent line of authority that indicates that there is an approach which is universally accepted internationally.
+The Australian cases that are of interest are those that post date the decision in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.
+They are NALZ v Minister for Immigration and Multicultural Affairs [2004] FCAFC 320; NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29, (2005) 79 ALJR 1142, and SZATV v Minister for Immigration and Citizenship [2007] HCA 40, (2007) 233 CLR 18.
+In NALZ the Federal Court was divided on the question how the principles set out S395/2002 should be applied.
+The applicant was an Indian national who was refused refugee status by the tribunal because he could avoid future arrest by not engaging in the activity that would attract persecution.
+The majority, Emmett and Downes JJ, held that this was not an impermissible approach.
+Madgwick J thought that the tribunal had fallen into the error identified in S395/2002 because it had not asked itself what the applicant would in fact do.
+In NABD the High Court was again divided in its identification of the relevant legal principles.
+It did not reach the question whether a test of what was reasonably tolerable could be applied.
+It is worth noting however that McHugh J stressed the need for a rigorous and careful examination of the applicants specific characteristics and circumstances.
+In SZATV the question was whether the tribunal was right to deny asylum on the ground that it would be reasonable for the applicant, a journalist whose fear was of persecution on grounds of political opinion, to relocate to another part of the country of his nationality and do construction work there.
+The High Court on this occasion was unanimous in holding that the tribunal had failed to address itself to what might reasonably be expected of the applicant with respect to his relocation if he were to be returned.
+I think that the single most important message to emerge from these cases is the need for a careful and fact sensitive analysis.
+The New Zealand case is Refugee Appeal No 74665/03 [2005] INLR 68, in which the judgment of the New Zealand Refugee Status Appeals Authority was written by Rodger Haines QC.
+It contains an impressive analysis of the relevant principles, and it is impossible to do full justice here to what it contains.
+The passages that are of particular interest are to be found from paras 92 and following.
+The point made by Sachs J in National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6, para 130 that to require an applicant to engage in self denial was to require him to live in a state of self induced oppression was approved and adopted: para 114.
+The decision of the High Court of Australia in S395/2002 is analysed in paras 116 124.
+Haines is critical of its approach on the ground that it concentrates on an evaluation of the risk rather than being, as it is put in para 124, located in the persecution element.
+The New Zealand approach, it is said, places international human rights standards at the centre of the being persecuted analysis in the belief that this provides a principled and disciplined framework for analysis.
+The significance of this distinction becomes apparent at the end of the judgment when, without any detailed analysis of the causative condition by examining what will actually happen on return, the conclusion is reached in a few sentences that the applicant was at risk of serious harm simply because he was gay: para 132.
+In Karouni v Gonzales (2005) 399 F 3d 1163 the US Court of Appeals upheld an appeal by an applicant who claimed that he had a well founded fear of persecution on return to Lebanon because he was gay.
+It applied the principle, which the Secretary of State in this case accepts, that he should not be required to change his sexual identity, as it was a fundamental characteristic and an integral part of human freedom.
+Several Canadian cases were referred to by Mr Bourne in support of his proposition that the tribunal must look at what the applicant will, rather than could, do if he were to be returned: Case no 02751 of 9 January 2007 (unreported) 16 February 2007; Atta Fosu v Canada (Minister of Citizenship and Immigration) [2008] FC 1135 and Okoli v Minister of Citizenship and Immigration [2009] FC 332.
+In Atta Fosu, for example, the Federal Court held that it was impermissible to require a person to deny or hide his sexuality when there was no evidence that he could, or was even prepared to, keep it secret.
+What is missing from these cases, especially those from Australia and New Zealand, is clear and consistent guidance as to the way the fact finding tribunals should go about their task.
+Useful advice is set out in A Guide to Refugee Law in Australia, prepared by the Legal Service Section of the Refugee Review Tribunal and the Migration Review Tribunal, pp 10.25 10.26.
+But it is not authoritative.
+The test as stated in para 16 of J v Secretary of State for the Home Department [2007] Imm AR 73 does not fit well with some of the dicta in these cases, and with the recommendation in the Guide that asylum seekers are not required, and cannot be expected, to take reasonable steps to avoid persecutory harm or to live discreetly so as to avoid it.
+But I have already concluded that it should be departed from.
+The test
+This brings me to the test that should be adopted by the fact finding tribunals in this country.
+As Lord Walker points out in para 98, this involves what is essentially an individual and fact specific inquiry.
+Lord Rodger has described the approach in para 82, but I would like to set it out in my own words.
+It is necessary to proceed in stages. (a) The first stage, of course, is to consider whether the applicant is indeed gay.
+Unless he can establish that he is of that orientation he will not be entitled to be treated as a member of the particular social group.
+But I would regard this part of the test as having been satisfied if the applicants case is that he is at risk of persecution because he is suspected of being gay, if his past history shows that this is in fact the case. (b) The next stage is to examine a group of questions which are directed to what his situation will be on return.
+This part of the inquiry is directed to what will happen in the future.
+The Home Offices Country of Origin report will provide the background.
+There will be little difficulty in holding that in countries such as Iran and Cameroon gays or persons who are believed to be gay are persecuted and that persecution is something that may reasonably be feared.
+The question is how each applicant, looked at individually, will conduct himself if returned and how others will react to what he does.
+Those others will include everyone with whom he will come in contact, in private as well as in public.
+The way he conducts himself may vary from one situation to another, with varying degrees of risk.
+But he cannot and must not be expected to conceal aspects of his sexual orientation which he is unwilling to conceal, even from those whom he knows may disapprove of it.
+If he fears persecution as a result and that fear is well founded, he will be entitled to asylum however unreasonable his refusal to resort to concealment may be.
+The question what is reasonably tolerable has no part in this inquiry. (c) On the other hand, the fact that the applicant will not be able to do in the country of his nationality everything that he can do openly in the country whose protection he seeks is not the test.
+As I said earlier (see para 15), the Convention was not directed to reforming the level of rights in the country of origin.
+So it would be wrong to approach the issue on the basis that the purpose of the Convention is to guarantee to an applicant who is gay that he can live as freely and as openly as a gay person as he would be able to do if he were not returned.
+It does not guarantee to everyone the human rights standards that are applied by the receiving country within its own territory.
+The focus throughout must be on what will happen in the country of origin. (d) The next stage, if it is found that the applicant will in fact conceal aspects of his sexual orientation if returned, is to consider why he will do so.
+If this will simply be in response to social pressures or for cultural or religious reasons of his own choosing and not because of a fear of persecution, his claim for asylum must be rejected.
+But if the reason why he will resort to concealment is that he genuinely fears that otherwise he will be persecuted, it will be necessary to consider whether that fear is well founded. (e) This is the final and conclusive question: does he have a well founded fear that he will be persecuted? If he has, the causative condition that Lord Bingham referred to in Januzi v Secretary of State for the Home Department [2006] 2 AC 426, para 5 will have been established.
+The applicant will be entitled to asylum.
+It should always be remembered that the purpose of this exercise is to separate out those who are entitled to protection because their fear of persecution is well founded from those who are not.
+The causative condition is central to the inquiry.
+This makes it necessary to concentrate on what is actually likely to happen to the applicant.
+As Lord Walker says in para 88, the inquiry is directed to what will happen in the future if the applicant is returned to his own country.
+An approach which disregards what is in fact likely to occur there in the case of the particular applicant is wrong and should not be adopted.
+The facts of these cases
+Applying the guidance in J v Secretary of State for the Home Department [2007] Imm AR 73 to HJs case, the Asylum and Immigration Tribunal said that the issue was whether the need for him to live discreetly would itself constitute persecution.
+The evidence of suppression of aspects of his life in Iran was limited.
+It concluded that to live a private life discreetly would not cause significant detriment to his right to respect for private life and that it would not involve suppression of many aspects of his sexual identity.
+Noting that enforcement of the law against homosexuality in Iran is arbitrary, it said that the evidence did not show a real risk of discovery or of adverse action against homosexuals who conduct their homosexual activities discreetly.
+It found on the evidence that the level of seriousness for international protection had not been reached.
+HJ could reasonably be expected to tolerate the position in Iran on any return: para 46.
+In the Court of Appeal Pill LJ said that in his judgment the test stated in para 16 of Js case by reference to S395/2002 complied with the standard required by the Convention and that the findings of the tribunal were findings that they were entitled to make on the evidence: para 31.
+In HTs case the Tribunal found that he would be discreet on return to Cameroon.
+In the Court of Appeal Pill LJ said that the groundwork for a further finding that he could not reasonably be required to be discreet in Cameroon or to tolerate a life involving discretion there was not established: para 44.
+He upheld the Tribunals decision on the ground that it was entitled to find that the first panel did not err in law in finding that a single attack on HT followed a one off incident of him being seen by a neighbour kissing another man with whom he had a three year relationship in his garden.
+Miss Carss Frisk pointed out that there was no finding that his behaviour with the other man was a one off incident.
+He was the victim of a single attack involving serious violence by way of mob justice following the garden incident.
+Instead of helping him, the police joined in the assault.
+But he had had two homosexual relationships.
+The second had lasted for a period of five years.
+The problem had started when neighbours spotted what he and his partner were doing in the garden.
+The Tribunal said that he could move to another part of Cameroon where his sexual identity was unknown.
+But it is plain that to be effective against the risk of persecution, which is present everywhere in that country, he would have to lie about and conceal his sexuality.
+The Tribunal did not assess the effects on him of suppressing his sexual identity.
+Conclusion
+I am not confident that the tribunals would have come to the same conclusion if they had approached the facts in the way I have suggested in paras 35 36.
+It was suggested by the appellants that this court should make a reference of a question arising under the Qualification Directive to the Court of Justice of the European Union under article 267 TFEU (formerly article 234 EC).
+But the point that was said to require a reference was not clearly identified, and I would reject that suggestion.
+I would allow these appeals and set aside the orders of the Court of Appeal.
+I would remit both cases to the Tribunal, for further reconsideration in HJs case and for reconsideration in the case of HT, in the light of the guidance given by this Court.
+LORD RODGER
+A gay man applies for asylum in this country.
+The Secretary of State is satisfied that, if he returns to his country of nationality and lives openly as a homosexual, the applicant will face a real and continuing prospect of being beaten up, or flogged, or worse.
+But the Secretary of State is also satisfied that, if he returns, then, because of these dangers of living openly, he will actually carry on any homosexual relationships discreetly and so not come to the notice of any thugs or of the authorities.
+Is the applicant a refugee for purposes of the United Nations Convention relating to the Status of Refugees 1951 (the Convention)? The answer is Yes.
+Article 1A(2) of the Convention declares that a refugee is a person who, owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.
+The appellants, HJ, from Iran, and HT, from Cameroon, are gay men who both claim to be outside their country of nationality owing to a well founded fear of being persecuted for reasons of being gay.
+At one time there would have been debate as to whether homosexuals constitute a particular social group for the purposes of the Convention.
+But, in more recent years, it has come to be accepted that, at least in societies which discriminate against homosexuals, they are indeed to be regarded as a particular social group.
+See, for instance, R v Immigration Appeal Tribunal, Ex p Shah [1999] 2 AC 629, 644G 645A, per Lord Steyn, and at p 663, per Lord Millett (dissenting).
+Indeed regulation 6(1)(e) of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI 2006/2525) really puts the point beyond doubt by providing that, subject to an exception which is not relevant for present purposes, a particular social group might include a group based on a common characteristic of sexual orientation.
+The Secretary of State therefore accepts that, in the case of Iran and Cameroon, homosexuals do indeed form a particular social group, of which HJ and HT are members.
+The approach in HJ
+In the case of HJ, the Asylum and Immigration Tribunal observed, at para 9 of its determination, that It is accepted that for a person to be openly gay in Iran would attract a real risk of persecution (see in particular RM and BB (Homosexuals) Iran [2005] UKAIT 00117).
+The issue therefore is whether the need for the appellant to be discreet about his sexuality on return to Iran would itself constitute persecution within the meaning of the Refugee Convention.
+The Tribunal went on to hold, at para 25, that It remains clear, as it was at the time of RM and BB, that those who confess to homosexual acts or are convicted by whatever means are at real risk as they face condign punishment.
+But, in its view, the evidence fell well short of showing that surveillance had reached such levels that Iranian citizens who engaged in homosexual activities in private ran a real risk of discovery.
+It remained the case, as the Tribunal had concluded in RM and BB, at para 124, that, given the legal context in which homosexuals operate in Iran, it can be expected that they would be likely to conduct themselves discreetly for fear of the obvious repercussions that would follow.
+The Tribunal in the present case summarised the position at para 44: We acknowledge that the way in which he is able to live as a gay man in the UK is preferable for him and we are satisfied that this informs his view that it is impossible for him to return to Iran.
+We acknowledge too that the appellant is now much more aware of the legal prohibitions on homosexuals in Iran and the potential punishments for breach of those prohibitions.
+On any return, to avoid coming to the attention of the authorities because of his homosexuality he would necessarily have to act discreetly in relation to it.
+We are satisfied that as a matter of fact he would behave discreetly.
+On the evidence he was able to conduct his homosexual activities in Iran without serious detriment to his private life and without that causing him to suppress many aspects of his sexual identity.
+Whilst he has conducted his homosexual activities in the UK less discreetly, we are not persuaded that his adaptation back to life in Iran would be something he could not reasonably be expected to tolerate.
+We consider that as a matter of fact he would behave in similar fashion as he did before he left Iran and that in doing so he would, as before, be able to seek out homosexual relationships through work or friends without real risk to his safety or serious detriment to his personal identity and without this involving for him suppression of many aspects of his sexual identity.
+Having analysed the evidence in more detail in para 45, the Tribunal referred to the test laid down by Buxton LJ in J v Secretary of State for the Home Department [2006] EWCA Civ 1238, [2007] Imm AR 73, at para 20. (The test is set out at para 48 below.) The Tribunal added, at para 46: The circumstances to be tolerated are the inability to live openly as a gay man as the appellant can in the UK.
+The part of sexuality to be abandoned is on the evidence also the ability to live openly as a gay man in the same way the appellant can do elsewhere.
+To live a private life discreetly will not cause significant detriment to his right to respect for private life, nor will it involve suppression of many aspects of his sexual identity.
+Enforcement of the law against homosexuality in Iran is arbitrary but the evidence does not show a real risk of discovery of, or adverse action against, homosexuals who conduct their homosexual activities discreetly.
+The position has not deteriorated since RM and BB [2005] UKAIT 00117.
+On the evidence we find the appellant can reasonably be expected to tolerate the position on any return.
+The approach in HT
+In the case of HT it is agreed that, following an occasion when he was seen kissing his then (male) partner in the garden of his home, the appellant was attacked by a crowd of people when leaving church.
+They beat him with sticks and threw stones at him.
+They pulled off his clothes and tried to cut off his penis with a knife.
+He attempted to defend himself and was cut just above the penis and on his hand.
+He was threatened with being killed imminently on the ground that you people cannot be changed.
+Police officers arrived and demanded to know what was going on and why the crowd were assaulting him.
+They were told it was because he was gay.
+One of the policemen said to the appellant How can you go with another man? and punched him on the mouth.
+The policemen then kicked him until he passed out.
+As a result of the injuries which he received he was kept in hospital for two months.
+After that, he was taken home by a member of his church who told him that he feared for his life and safety if he remained in Cameroon.
+This man made travel arrangements for HT who flew to the United Kingdom via another European country.
+In HTs case the Tribunal was of the view that in some respects the position in Cameroon was not dissimilar from the position in Iran and it was the view of the Tribunal that there might be difficulties for someone openly professing his homosexuality.
+A homosexual relationship carried on in private, however, was considered by the Tribunal not to create a reasonable degree of likelihood of persecution. (The Tribunals information about the position in Iran appears to have been taken from the admissibility decision of the European Court of Human Rights in F v United Kingdom (Application No 17341/03), 22 June 2004, unreported.) Because people in the area where he lived before leaving Cameroon knew that he was gay, the Tribunal contemplated that, in addition to conducting any relationship in private, HT would move to another part of the country where he would not be known.
+On reconsideration, the Senior Immigration Judge held, at para 15 of his determination, that Should the appellant choose to relocate it would be relatively safe for him to practice [sic] his sexual orientation in private and not come to the attention of the authorities.
+In both cases, therefore, the findings of the Tribunal are to the effect that, if the appellant were to return to his country of origin, he would be at risk of persecution if he were openly homosexual, but he would be unlikely to come to the attention of the authorities or to suffer harm, if he were to conduct any relationship in private.
+The test adopted by the Court of Appeal
+The question, whether in such circumstances an applicant has a well founded fear of persecution, seems to have been considered by the Court of Appeal for the first time in Z v Secretary of State for the Home Department [2004] EWCA Civ 1578, [2005] Imm AR 75.
+The court had been referred to the decision of the High Court of Australia in Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473.
+Buxton LJ accepted that the judgments in that case contained a number of statements to the effect that, if an applicants way of life would be subjected to persecution in his home country, he cannot be denied asylum on the basis of a conclusion that he could avoid that persecution by modifying that way of life.
+Having referred to paras 40 and 43 of the judgment of McHugh and Kirby JJ, Buxton LJ continued, at paras 15 16: 15.
+Mr Kovats for the Secretary of State pointed out that where avoiding action is forced on the subject, that case only falls under the Refugee Convention if it results in a condition that can properly be called persecutory, in that imposes on the subject a state of mind or conscience that fits with the definition of persecution given by McHugh and Kirby JJ in paragraph 40 of their judgment, and in line with English authority already quoted: Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it.
+That no doubt is the level of interference that McHugh and Kirby JJ had in mind when speaking of threats and menaces in the passage cited in para 14 above. 16.
+Although S395 was presented to the court that granted permission in this appeal as a new departure in refugee law, and for that reason justifying the attention of this court, in truth it is no such thing.
+McHugh and Kirby JJ, at their paragraph 41, specifically relied on English authority, Ahmed v SSHD [2000] INLR 1.
+It has been English law at least since that case, and the case that preceded it, Danian v SSHD [1999] INLR 533, that, in the words of the leading judgment of Simon Brown LJ at pp 7G and 8C D: in all asylum cases there is ultimately a single question to be asked: is there a serious risk that on return the applicant would be persecuted for a Convention reason.the critical question: if returned, would the asylum seeker in fact act in the way he says he would and thereby suffer persecution? If he would, then, however, unreasonable he might be thought for refusing to accept the necessary restraint on his liberties, in my judgment he would be entitled to asylum.
+It necessarily follows from that analysis that a person cannot be refused asylum on the basis that he could avoid otherwise persecutory conduct by modifying the behaviour that he would otherwise engage in, at least if that modification was sufficiently significant in itself to place him in a situation of persecution.
+If the IAT in our case refused Mr Z asylum on the basis that he was required to avoid persecution they did not respect the jurisprudence of Ahmed.
+Buxton LJs formulation of the position, as he derived it from Simon Brown LJs statement in Ahmed v Secretary of State for the Home Department [2000] INLR 1, 7, was quoted by Maurice Kay LJ in J v Secretary of State for the Home Department [2007] Imm AR 73, at para 11.
+He added that it was particularly helpful because it brings together the principle articulated by the High Court of Australia and the underlying need for an applicant to establish that his case contains something sufficiently significant in itself to place him in a situation of persecution.
+Maurice Kay LJ went on to say, at para 16, that the Tribunal will have to address questions that were not considered on the last occasion, including the reason why the appellant opted for discretion before his departure from Iran and, by implication, would do so again on return.
+It will have to ask itself whether discretion is something that the appellant can reasonably be expected to tolerate, not only in the context of random sexual activity but in relation to matters following from, and relevant to, sexual identity in the wider sense recognised by the High Court of Australia (see the judgment of Gummow and Hayne JJ at para 83).
+This requires consideration of the fact that homosexuals living in a stable relationship will wish, as this appellant says, to live openly with each other and the discretion which they may feel constrained to exercise as the price to pay for the avoidance of condign punishment will require suppression in respect of many aspects of life that related to or informed by their sexuality (Ibid, para 81).
+Buxton LJ added, at para 20: The question that will be before the AIT on remission will be whether the applicant could reasonably be expected to tolerate whatever circumstances are likely to arise were he to return to Iran.
+The applicant may have to abandon part of his sexual identity, as referred to in the judgment of Gummow and Hayne JJ in S, in circumstances where failure to do that exposes him to the extreme danger that is set out in the country guidance case of RM and BB.
+The Tribunal may wish to consider whether the combination of those two circumstances has an effect on their decision as to whether the I would accept both submissions. applicant can be expected to tolerate the situation he may find himself in when he returns to Iran.
+In his judgment on the present appeals Pill LJ held, at para 31, that the test stated in para 16 of Maurice Kay LJs judgment in J v Secretary of State complies with the standard required by the Refugee Convention.
+He added that it is an appropriate and workable test.
+Pill LJ considered that in the case of HJ the Tribunal had plainly understood the test and that their conclusion that he could reasonably be expected to tolerate conditions in Iran was firmly based on the evidence in the case, considered in the context of the in country evidence.
+On that ground he dismissed the appeal.
+Keene LJ and Sir Paul Kennedy agreed.
+The appellants take this fairly well established case law of the Court of Appeal head on.
+They contend that the Court of Appeal test is incompatible with the definition of refugee in article 1A(2) of the Convention and is based on a misunderstanding of the decision of the High Court of Australia in Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473.
+The rationale of the Convention
+For someone to be a refugee within the terms of article 1A(2) of the Convention, he must be outside his country of nationality owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
+In effect, the Convention proceeds on the basis that people should be allowed to live their lives free from the fear of serious harm coming to them because of their race, religion, nationality, membership of a particular social group or political opinion.
+Countries which sign up to the Convention recognise, however, that we do not live in an ideal world and that, in fact, there are many countries where persecution for these reasons does indeed take place.
+In such countries either agents of the state carry out the persecution themselves or, at least, the state does not offer adequate protection against individuals and groups who carry it out.
+Of course, diplomatic and other pressures may be exerted on states in the hope of improving the situation.
+But, in the meantime, the signatories to the Convention do not wash their hands of those at risk: in effect, they agree that, by giving the victims asylum, they will afford them the protection from persecution which their country of origin should have afforded them but did not.
+See, for example, La Forest J in Canada (Attorney General) v Ward [1993] 2 SCR 689, 709: At the outset, it is useful to explore the rationale underlying the international refugee protection regime, for this permeates the interpretation of the various terms requiring examination.
+International refugee law was formulated to serve as a back up to the protection one expects from the state of which an individual is a national.
+It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations.
+In Horvath v Secretary of State for the Home Department [2001] 1 AC 489, 495D G, Lord Hope of Craighead quoted this passage with approval and adopted Professor Hathaways description of the protection as surrogate or substitute protection.
+At the risk of repetition, the importance of this analysis for present purposes is that it proceeds on the basis that, so far from permitting or encouraging its agents to persecute the applicant for one of the protected grounds, the home state should have protected him from any persecution on that ground.
+The underlying rationale of the Convention is therefore that people should be able to live freely, without fearing that they may suffer harm of the requisite intensity or duration because they are, say, black, or the descendants of some former dictator, or gay.
+In the absence of any indication to the contrary, the implication is that they must be free to live openly in this way without fear of persecution.
+By allowing them to live openly and free from that fear, the receiving state affords them protection which is a surrogate for the protection which their home state should have afforded them.
+The applicant who would not take steps to avoid persecution
+The Secretary of State accepts accordingly that an applicant is entitled to the protection of the Convention if he could avoid suffering any actual harm by modifying his behaviour (say, by conducting himself discreetly) on his return to his home state but would not in fact choose to do so.
+English authority for this approach in the field of religion is to be found in the judgment of Simon Brown LJ in Ahmed (Iftikhar)v Secretary of State for the Home Department [2000] INLR 1.
+The applicant was an Ahmadi, who, if returned to Pakistan, would still have been vocal in his proclamation of Ahmadi beliefs, for which he would have suffered persecution.
+Simon Brown LJ observed, at p 7: It is one thing to say that it may well be reasonable to require asylum seekers to refrain from certain political or even religious activities to avoid persecution on return.
+It is quite another thing to say that, if in fact it appears that the asylum seeker on return would not refrain from such activities if, in other words, it is established that he would in fact act unreasonably he is not entitled to refugee status.
+The same point is made, with considerably more elaboration, in the judgment of McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473.
+They begin by pointing out, at p 489, para 40, that persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality.
+In the remainder of para 40 they point out that, if the position were otherwise, the Convention would not protect those who chose to exercise their right, say, to express their political opinion openly.
+Similarly, the Convention would not protect those who chose to live openly as gay men rather than take the option of living discreetly.
+Their Honours added, 216 CLR 473, 489 490, para 41: History has long shown that persons holding religious beliefs or political opinions, being members of particular social groups or having particular racial or national origins are especially vulnerable to persecution from their national authorities.
+The object of the signatories to the Convention was to protect the holding of such beliefs, opinions, membership and origins by giving the persons concerned refuge in the signatory countries when their country of nationality would not protect them.
+It would undermine the object of the Convention if the signatory countries required them to modify their beliefs or opinions or to hide their race, nationality or membership of particular social groups before those countries would give them protection under the Convention.
+They concluded the paragraph by citing the passage from Simon Brown LJ in Ahmed v Secretary of State for the Home Department [2000] INLR 1, 7, which I have quoted at para 54 above.
+The applicant who would conduct himself discreetly
+In Ahmed Simon Brown LJ was tackling the case of an applicant who could take steps to avoid persecution on his return, but who would not do so.
+The present appeals concern a completely different kind of applicant: the applicant who, on his return, would act discreetly to avoid the harm which would come to him if he were to live openly as a gay man.
+In the passage from Ahmed which I cited at para 54 above, Simon Brown LJ appears to have envisaged that it might, in some sense, be reasonable to require applicants to refrain from certain political or even religious activities to avoid persecution on return.
+But, in his conspicuously clear argument on behalf of the Secretary of State in the present case, Mr Bourne accepted that neither the Secretary of State nor a tribunal had any power to require a gay applicant to act discreetly on his return to his country of nationality in order to avoid persecution.
+Both of them might, of course, purport to decide the case on the assumption that the applicant would do so.
+But counsel accepted that neither the Secretary of State nor any tribunal could reject an application for asylum on the basis of an assumption that the gay applicant would act discreetly and so avoid, say, being beaten up or worse.
+He might or might not.
+It would be a question of fact, depending on the circumstances of the individual case.
+Although counsel for the Secretary of State was at pains to draw this distinction between assuming that the applicant would act discreetly to avoid persecution and finding that this is what he would in fact do, the distinction is pretty unrealistic.
+Unless he were minded to swell the ranks of gay martyrs, when faced with a real threat of persecution, the applicant would have no real choice: he would be compelled to act discreetly.
+Therefore the question is whether an applicant is to be regarded as a refugee for purposes of the Convention in circumstances where the reality is that, if he were returned to his country of nationality, he would have to act discreetly in order to avoid persecution.
+The question is not confined to cases where fear of persecution is the only reason why the applicant would act discreetly.
+In practice, the picture is likely to be more complicated.
+A fear of persecution is by no means the only reason why an applicant might behave discreetly if he were returned to his country of nationality.
+For example, he might not wish to upset his parents or his straight friends and colleagues by revealing that he is gay; in particular, he might worry that, if the fact that he was gay were known, he would become isolated from his friends and relatives, be the butt of jokes or unkind comments from colleagues or suffer other discrimination.
+Indeed, in a society where gay men are persecuted, it is quite likely that the prevailing culture will be such that some of an applicants friends, relatives and colleagues would react negatively if they discovered that he was gay.
+In these circumstances it is at least possible that the only real reason for an applicant behaving discreetly would be his perfectly natural wish to avoid harming his relationships with his family, friends and colleagues.
+The Convention does not afford protection against these social pressures, however, and so an applicant cannot claim asylum in order to avoid them.
+So if, having considered the facts of any individual case, the Secretary of State or a tribunal concluded that the applicant would choose to behave discreetly on his return simply to avoid these social pressures, his application for asylum would fall to be rejected.
+He would not be a refugee within the terms of article 1A(2) of the Convention because, by choosing to behave discreetly in order to avoid these social pressures, the applicant would simultaneously choose to live a life in which he would have no well founded fear of being persecuted for reasons of his homosexuality.
+A similar point arose, in the context of religion, in NABD of 2002 v Minister of Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1142, discussed at para 70 below.
+Having examined the relevant evidence, the Secretary of State or the tribunal may conclude, however, that the applicant would act discreetly partly to avoid upsetting his parents, partly to avoid trouble with his friends and colleagues, and partly due to a well founded fear of being persecuted by the state authorities.
+In other words the need to avoid the threat of persecution would be a material reason, among a number of complementary reasons, why the applicant would act discreetly.
+Would the existence of these other reasons make a crucial difference? In my view it would not.
+A Jew would not lose the protection of the Convention because, in addition to suffering state persecution, he might also be subject to casual, social anti semitism.
+Similarly, a gay man who was not only persecuted by the state, but also made the butt of casual jokes at work, would not lose the protection of the Convention.
+It follows that the question can be further refined: is an applicant to be regarded as a refugee for purposes of the Convention in circumstances where the reality is that, if he were returned to his country of nationality, in addition to any other reasons for behaving discreetly, he would have to behave discreetly in order to avoid persecution because of being gay?
+It is convenient to use a phrase such as acting or behaving discreetly to describe what the applicant would do to avoid persecution.
+But in truth he could do various things.
+To take a few examples.
+At the most extreme, the applicant might live a life of complete celibacy.
+Alternatively, he might form relationships only within a circle of acquaintances whom he could trust not to reveal to others that he had gay relationships.
+Or, he might have a gay partner, but never live with him or have him to stay overnight or indulge in any display of affection in public.
+Or the applicant might have only fleeting anonymous sexual contacts, as a safe opportunity presented itself.
+The gradations are infinite.
+Suppose the Secretary of State or the tribunal were satisfied that, if the applicant took some such precautions, he would be unlikely to suffer any actual harm.
+Would the applicant then have no well founded fear of persecution by reason of being gay and so be unable to claim asylum under the Convention?
+Surely not.
+As already explained in para 53 above, so far as the social group of gay people is concerned, the underlying rationale of the Convention is that they should be able to live freely and openly as gay men and lesbian women, without fearing that they may suffer harm of the requisite intensity or duration because they are gay or lesbian.
+Their home state should protect them and so enable them to live in that way.
+If it does not and they will be threatened with serious harm if they live openly, then most people threatened with persecution will be forced to take what steps they can to avoid it.
+But the applicants country of nationality does not meet the standard of protection from persecution which the Convention envisages simply because conditions in the country are such that he would be able to take, and would in fact take, steps to avoid persecution by concealing the fact that he is gay.
+On the contrary, the fact that he would feel obliged to take these steps to avoid persecution is, prima facie, an indication that there is indeed a threat of persecution to gay people who live openly.
+His country of nationality is therefore not affording him the necessary level of protection.
+So the receiving country should.
+For this reason, in Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473, 493, para 51, McHugh and Kirby JJ emphasise that a tribunal will fall into error if it fails to ask why an applicant would act discreetly if he were returned to his home state.
+That question will be particularly important where the evidence shows that, before leaving his country and applying for asylum, the applicant lived discreetly.
+Their Honours explained, at p 490, para 43: In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future.
+The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted.
+In many perhaps the majority of cases, however, the applicant has acted in the way that he or she did only because of the threat of harm.
+In such cases, the well founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm.
+It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct.
+Their Honours went on to apply that approach to the decision of the tribunal in that case, at p 493, paras 51 53: 51.
+Central to the Tribunals decision was the finding that the appellants had not suffered harm in the past because they had acted discreetly.
+Because the Tribunal assumed that it is reasonable for a homosexual person in Bangladesh to conform to the laws of Bangladesh society, the Tribunal failed to determine whether the appellants had acted discreetly only because it was not possible to live openly as a homosexual in Bangladesh.
+Because of that failure, the Tribunal, unsurprisingly, failed to give proper attention to what might happen to the appellants if they lived openly in the same way as heterosexual people in Bangladesh live. 52.
+The Tribunal did find, however, that to attempt to live openly as a homosexual in Bangladesh would mean to face problems ranging from being disowned by ones family and shunned by friends and neighbours to more serious forms of harm, for example the possibility of being bashed by the police.
+That finding appears to be based on an acceptance of the evidence of Mr Khan, the Executive Director of the Naz Foundation.
+In its reasons, the Tribunal recorded Mr Khan as saying: [T]he consequences of being identified as homosexual vary enormously, from acceptance and tolerance, to harassment, physical abuse or expulsion from the community.
+Most of the harassment of males who have sex with males takes the form of extortion by local police and hustlers who threaten to expose them to their families if they do not cooperate. 53.
+The Tribunals findings on the attitude of Bangladesh society and the statements of the appellants indicate that they were discreet about their relationship only because they feared that otherwise they would be subjected to the kinds of discrimination of which Mr Khan spoke.
+If the Tribunal had found that this fear had caused them to be discreet in the past, it would have been necessary for the Tribunal then to consider whether their fear of harm was well founded and amounted to persecution.
+That would have required the Tribunal to consider what might happen to the appellants in Bangladesh if they lived openly as a homosexual couple.
+Would they have suffered physical abuse, discrimination in employment, expulsion from their communities or violence or blackmail at the hands of police and others, as Mr Khan suggested were possibilities? These were the sorts of questions that the Tribunal was bound to consider if it found that the appellants discreet behaviour in the past was the result of fear of what would happen to them if they lived openly as homosexuals.
+Because the Tribunal assumed that it is reasonable for a homosexual person in Bangladesh to conform to the laws of Bangladesh society, however, the Tribunal disqualified itself from properly considering the appellants claims that they had a real fear of persecution if they were returned to Bangladesh.
+In short, the fact that the applicants would act discreetly and so not be subjected to violence if returned to Bangladesh did not mean that they did not have a well founded fear of persecution on their return.
+Rather, the tribunal had to go on to ask itself why they would act discreetly.
+If it was because they would suffer serious harm if they lived openly as a homosexual couple, then they would have a well founded fear of persecution since it is the right to live openly without fear of persecution which the Convention exists to protect.
+The other justices in the majority, Gummow and Hayne JJ, described the tribunals error in this way, 216 CLR 473, 503, para 88: The Tribunal did not ask why the appellants would live discreetly.
+It did not ask whether the appellants would live discreetly because that was the way in which they would hope to avoid persecution.
+That is, the Tribunal was diverted from addressing the fundamental question of whether there was a well founded fear of persecution by considering whether the appellants were likely to live as a couple in a way that would not attract adverse attention.
+That the Tribunal was diverted in that way is revealed by considering the three statements in its reasons that are referred to earlier: first, that it is not possible to live openly as a homosexual in Bangladesh; secondly, that [t]o attempt to [live openly] would mean to face problems; and, thirdly, that Bangladeshi men can have homosexual affairs or relationships, provided they are discreet.
+Nowhere did the Tribunal relate the first and second of these statements to the position of the appellants.
+It did not consider whether the adverse consequences to which it referred sufficed to make the appellants fears well founded.
+All that was said was that they would live discreetly.
+Again, the point is that the tribunal should have considered why the appellants would live discreetly if they were returned to Bangladesh.
+In particular, it should have asked whether they would live discreetly because that was the way they would hope to avoid persecution.
+If so, then the tribunal should have considered whether the adverse consequences sufficed to make the appellants fears of persecution well founded.
+The decision of the High Court is accordingly powerful authority, which I would respectfully follow, for the proposition that, if a person has a well founded fear that he would suffer persecution on being returned to his country of nationality if he were to live openly as a gay man, then he is to be regarded as a refugee for purposes of the Convention, even though, because of the fear of persecution, he would in fact live discreetly and so avoid suffering any actual harm.
+The High Court has followed the same line of reasoning in subsequent cases.
+Application of the High Courts approach in Appellant S395/2002
+In NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1142 the appellant, who had converted to Christianity, would face persecution if he returned to Iran.
+He argued that the tribunal had fallen into the same kind of error as the tribunal in S395/2002 v Minister for Immigration by attaching significance to a supposed difference between discreet and confrontational behaviour.
+By a majority (McHugh and Kirby JJ dissenting), the High Court dismissed his appeal.
+In doing so, they did not reject the approach in S395/2002 v Minister for Immigration.
+Rather, applying that approach, they held that the appeal failed on the facts.
+As Hayne J (one of the majority in S395/2002) and Heydon J explained, at para 168: At no point in its chain of reasoning did the Tribunal divert from inquiring about whether the fears which the appellant had were well founded.
+It did not ask (as the Tribunal had asked in Appellant S395/2002) whether the appellant could avoid persecution; it asked what may happen to the appellant if he returned to Iran.
+Based on the material the Tribunal had, including the material concerning what the appellant had done while in detention, it concluded that were he to practise his faith in the way he chose to do so, there was not a real risk of his being persecuted.
+In SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 the appellant had worked as a journalist in Chernovtsy in Ukraine.
+Due to his political views he had been subjected to a systematic campaign of harassment, including physical maltreatment.
+The Refugee Review Tribunal none the less rejected his claim for asylum on the ground that he could return to a different part of Ukraine where he would not be known, and work in the construction industry.
+He would not then come to the notice of the authorities.
+Allowing his appeal, at p 28, para 28, Gummow, Hayne and Crennan JJ referred to the analysis in para 40 of the judgment of McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473, 489, where they had criticised the idea that an applicant would not suffer persecution for his homosexuality if he could avoid it by living discreetly.
+Similarly, in SZATV, the tribunal had gone wrong by approaching the issue on the footing that it would not be unreasonable for the appellant to relocate within Ukraine and obtain work which would not involve the expression to the public of his political opinions.
+In other words, he would avoid persecution by giving up the very right to express his political opinions without fear of persecution which the Convention is designed to protect.
+Again, the decision is consistent with the approach in Appellant S395/2002 v Minister for Immigration.
+The same approach has been followed in New Zealand.
+In Refugee Appeal No 74665/03, [2005] INLR 68 at para 124, the New Zealand Refugee Status Appeals Authority considered that its own approach and the approach of the High Court of Australia in Appellant S395/2002 converged on the same point, namely that refugee status cannot be denied by requiring of the claimant that he or she avoid being persecuted by forfeiting a fundamental human right.
+The difference between the High Court and the Authority which the Authority considered could be important in certain cases was that it preferred to use a human rights framework in order to determine the limits of what an individual is entitled to do and not to do.
+That approach might, for instance, be relevant if an applicant were claiming asylum on the ground that he feared persecution if he took part in a gay rights march.
+I respectfully see the attractions of that approach.
+But no such issue arises in the present appeals and I prefer to leave the point for consideration in a case where it might be of practical effect.
+For present purposes I take the decision of the Authority, based on a particularly full and impressive analysis of the relevant materials, as clear support for the High Court of Australias approach that an applicant cannot be denied asylum on the basis that he would, in fact, take effective steps, by suppressing his sexual identity, to avoid the harm which would otherwise threaten him.
+The Court of Appeal: living discreetly as persecution
+Under reference to the case law of the Court of Appeal set out above at paras 47 49, the Secretary of State argued, however, that if the applicant would actually live discreetly and avoid the danger, then he would have no real fear of persecution unless he could not reasonably be expected to tolerate that situation, viz, having to conceal his sexual identity, and all the restrictions which that would entail, in circumstances where failure to do so would expose him to extreme danger.
+In other words the basis for claiming asylum would be a well founded fear that he would find it intolerable to live discreetly to avoid the danger.
+Something of the same idea can be seen in the argument which Mosley J considered in Sadeghi Pari v Canada (Minister of Citizenship and Immigration) 2004 FC 282, para 29: The meaning of persecution is generally defined as the serious interference with a basic human right.
+Concluding that persecution would not exist because a gay woman in Iran could live without punishment by hiding her relationship to another woman may be erroneous, as expecting an individual to live in such a manner could be a serious interference with a basic human right, and therefore persecution (internal citations omitted).
+In my view, the approach adopted by the Court of Appeal is unsound.
+I leave on one side my reasoning so far and also the obvious point that the Court of Appeals test seems to require the applicant to establish a form of secondary persecution brought on by his own actions in response to the primary persecution.
+In my view the core objection to the Court of Appeals approach is that its starting point is unacceptable: it supposes that at least some applications for asylum can be rejected on the basis that the particular applicant could find it reasonably tolerable to act discreetly and conceal his sexual identity indefinitely to avoid suffering severe harm.
+The New Zealand Refugee Status Appeals Authority observed in Re GJ [1998] (1995) INLR 387, 420 that sexual orientation is either an innate or unchangeable characteristic or a characteristic so fundamental to identity or human dignity that it ought not be required to be changed (emphasis in the original).
+So, starting from that position, the Convention offers protection to gay and lesbian people and, I would add, bisexuals and everyone else on a broad spectrum of sexual behaviour because they are entitled to have the same freedom from fear of persecution as their straight counterparts.
+No one would proceed on the basis that a straight man or woman could find it reasonably tolerable to conceal his or her sexual identity indefinitely to avoid suffering persecution.
+Nor would anyone proceed on the basis that a man or woman could find it reasonably tolerable to conceal his or her race indefinitely to avoid suffering persecution.
+Such an assumption about gay men and lesbian women is equally unacceptable.
+Most significantly, it is unacceptable as being inconsistent with the underlying purpose of the Convention since it involves the applicant denying or hiding precisely the innate characteristic which forms the basis of his claim of persecution: Atta Fosu v Canada (Minister of Citizenship and Immigration) 2008 FC 1135, para 17, per Zinn J.
+At the most basic level, if a male applicant were to live discreetly, he would in practice have to avoid any open expression of affection for another man which went beyond what would be acceptable behaviour on the part of a straight man.
+He would have to be cautious about the friendships he formed, the circle of friends in which he moved, the places where he socialised.
+He would have constantly to restrain himself in an area of life where powerful emotions and physical attraction are involved and a straight man could be spontaneous, impulsive even.
+Not only would he not be able to indulge openly in the mild flirtations which are an enjoyable part of heterosexual life, but he would have to think twice before revealing that he was attracted to another man.
+Similarly, the small tokens and gestures of affection which are taken for granted between men and women could well be dangerous.
+In short, his potential for finding happiness in some sexual relationship would be profoundly affected.
+It is objectionable to assume that any gay man can be supposed to find even these restrictions on his life and happiness reasonably tolerable.
+It would be wrong, however, to limit the areas of behaviour that must be protected to the kinds of matters which I have just described essentially, those which will enable the applicant to attract sexual partners and establish and maintain relationships with them in the same way as happens between persons who are straight.
+As Gummow and Hayne JJ pointed out in Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473, 500 501, para 81: Sexual identity is not to be understood in this context as confined to engaging in particular sexual acts or, indeed, to any particular forms of physical conduct.
+It may, and often will, extend to many aspects of human relationships and activity.
+That two individuals engage in sexual acts in private (and in that sense discreetly) may say nothing about how those individuals would choose to live other aspects of their lives that are related to, or informed by, their sexuality In short, what is protected is the applicants right to live freely and openly as a gay man.
+That involves a wide spectrum of conduct, going well beyond conduct designed to attract sexual partners and maintain relationships with them.
+To illustrate the point with trivial stereotypical examples from British society: just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates.
+Mutatis mutandis and in many cases the adaptations would obviously be great the same must apply to other societies.
+In other words, gay men are to be as free as their straight equivalents in the society concerned to live their lives in the way that is natural to them as gay men, without the fear of persecution.
+This is not to give any false or undue prominence to the applicants sexuality or to say that an individual is defined by his sexuality.
+It is just to accept that sexual identity is inherent to ones very identity as a person: Hernandez Montiel v Immigration and Naturalisation Service, 225 F 3d 1084, 1093 (9th Cir 2000), per Tashima J. A E Housman showed many of the hallmarks of genius both as a textual critic and as a poet; Alan Turing was a mathematical genius.
+Not only may these talents have been at least as significant to their identity as their homosexuality, but the individuals themselves may well have thought so too.
+That does not matter in the context of persecution.
+As the Nazi period showed all too clearly, a secular Jew, who rejected every tenet of the religion and did not even think of himself as Jewish, was ultimately in as much need as any Orthodox rabbi of protection from persecution as a Jew.
+Similarly, an applicant for asylum does not need to show that his homosexuality plays a particularly prominent part in his life.
+All that matters is that he has a well founded fear that he will be persecuted because of that particular characteristic which he either cannot change or cannot be required to change.
+Another way of pointing to essentially the same basic defect in the approach of the Court of Appeal is to say that a tribunal has no legitimate way of deciding whether an applicant could reasonably be expected to tolerate living discreetly and concealing his homosexuality indefinitely for fear of persecution.
+Where would the tribunal find the yardstick to measure the level of suffering which a gay man far less, the particular applicant would find reasonably tolerable? How would the tribunal measure the equivalent level for a straight man asked to suppress his sexual identity indefinitely? The answer surely is that there is no relevant standard since it is something which no one should have to endure.
+In practice, of course, where the evidence showed that an applicant had avoided persecutory harm by living discreetly for a number of years before leaving his home country, the tribunal would be tempted to fall into error.
+The tribunal would be liable to hold that the evidence showed that this applicant, at least, must have found his predicament reasonably tolerable in the past and so would find it reasonably tolerable if he were returned to his country of nationality.
+But, in truth, that evidence would merely show that the applicant had put up with living discreetly for fear of the potentially dire consequences of living openly.
+I would therefore hold that the tests formulated by Maurice Kay LJ and Buxton LJ in J v Secretary of State for the Home Department [2007] Imm AR 73, at paras 16 and 20, and applied by Pill LJ in this case, are wrong in principle, unworkable and inconsistent with the way that article 1A(2) of the Convention has been interpreted and applied in other authorities.
+As can be seen from the passage from Z v Secretary of State for the Home Department [2005] Imm AR 75 quoted at para 47 above, Buxton LJ seems to have thought that he was following the approach of McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473.
+That was, quite simply, a misunderstanding.
+As the cross heading above para 40 of their judgment showed, at this point in their judgment their Honours were considering the position of a gay person who would live openly.
+They first explained that persecution could take a variety of forms, and then observed, in the sentence quoted by Buxton LJ, that to count as persecution the harm had to be intolerable.
+But this is just a general description of what counts as persecution.
+As I have explained, in paras 55 and 56 above, the remainder of para 40 of their Honours judgment contains not the slightest hint of the approach favoured by the Court of Appeal.
+That approach should not be followed in future.
+The approach to be followed by tribunals
+When an applicant applies for asylum on the ground of a well founded fear of persecution because he is gay, the tribunal must first ask itself whether it is satisfied on the evidence that he is gay, or that he would be treated as gay by potential persecutors in his country of nationality.
+If so, the tribunal must then ask itself whether it is satisfied on the available evidence that gay people who lived openly would be liable to persecution in the applicants country of nationality.
+If so, the tribunal must go on to consider what the individual applicant would do if he were returned to that country.
+If the applicant would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well founded fear of persecution even if he could avoid the risk by living discreetly.
+If, on the other hand, the tribunal concludes that the applicant would in fact live discreetly and so avoid persecution, it must go on to ask itself why he would do so.
+If the tribunal concludes that the applicant would choose to live discreetly simply because that was how he himself would wish to live, or because of social pressures, e g, not wanting to distress his parents or embarrass his friends, then his application should be rejected.
+Social pressures of that kind do not amount to persecution and the Convention does not offer protection against them.
+Such a person has no well founded fear of persecution because, for reasons that have nothing to do with any fear of persecution, he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay.
+If, on the other hand, the tribunal concludes that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then, other things being equal, his application should be accepted.
+Such a person has a well founded fear of persecution.
+To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect his right to live freely and openly as a gay man without fear of persecution.
+By admitting him to asylum and allowing him to live freely and openly as a gay man without fear of persecution, the receiving state gives effect to that right by affording the applicant a surrogate for the protection from persecution which his country of nationality should have afforded him.
+The Secretary of State should, of course, apply the same approach when considering applications of this type.
+Although I have, for the most part, concentrated on the position of gay men, the Secretary of State and tribunals should approach applications concerning lesbian women in the same way.
+These appeals
+I add a comment on the case of HT.
+The tribunal rejected his application on the ground that, on his return to Cameroon, he could go to live in another part of the country and live discreetly there.
+In that event he would have no real fear of persecution.
+But there appears to have been nothing in the evidence to suggest that there was any area of Cameroon where gay men could live openly without any fear of persecution.
+So in no sense would the applicant be returning to a part of the country where the state would protect him from persecution.
+In effect, therefore, the tribunal was simply saying that his application should be rejected because, on return, he could take steps to avoid persecution by conducting himself discreetly.
+For the reasons which I have given, that approach is inconsistent with the very aims of the Convention.
+In effect, the tribunal made the same error as the tribunal in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18, discussed at para 71 above.
+For these reasons I would allow both appeals and remit matters to the respective tribunals for reconsideration in the light of the approach which I have outlined.
+LORD WALKER
+I agree with the reasoning and conclusions in Lord Rodgers judgment.
+But in view of the importance of this appeal I will add some observations in my own words.
+After all the carefully researched debate that the Court has heard and participated in (we have had 23 bundles of authorities containing 250 different items) there is, as has often been noted, ultimately a single question: does the claimant asylum seeker have a well founded fear of being persecuted, if returned to his own country, for reasons falling within article 1A(2) of the Convention? As it was put by Simon Brown LJ in Secretary of State for the Home Department v Iftikar Ahmed [2000] INLR 1, cited by McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 (2003) 216 CLR 473 para 42 : [I]n all asylum cases there is ultimately but a single question to be asked: is there a serious risk that on return the applicant would be persecuted for a Convention reason? If there is, then he is entitled to asylum.
+This single question is however complex (McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 256) described it as a compound conception which nevertheless needs to be interpreted as a totality).
+It is not directed at ascertaining past facts (though findings as to events asserted by the claimant to have happened in the past will always be relevant, and often crucial).
+Instead it is directed at predicting what would or might happen in the future if (contrary to his wishes) the claimant is returned to his own country.
+Here too his evidence as to his own state of mind (in particular his intentions and his apprehensions in an eventuality which he earnestly hopes to avoid) will always be relevant.
+But his evidence may have to be treated with caution because of his strong personal interest in the outcome of his claim.
+Moreover the inquiry is by no means wholly subjective.
+The need for the claimants fear to be well founded introduces a very important objective element.
+Different jurisdictions have taken different approaches to evaluating what Professor James C Hathaway has called the threshold of concern (Hathaway, The Law of Refugee Status (1991) pp 75 80).
+When that work was published the test approved by the House of Lords in R v Secretary of State for the Home Department Ex p Sivakumaran (and conjoined appeals) [1988] AC 958 was that there should be a reasonable degree of likelihood (Lord Keith at p 994) or real and substantial danger (Lord Templeman at p 996) or a real and substantial risk (Lord Goff at p 1000) of persecution for a Convention reason.
+This remains the test.
+The editors of Macdonald, Immigration Law and Practice 7th ed (2008) prefer the expression real risk, citing the Court of Appeal in MH (Iraq) v Secretary of State for the Home Department [2007] EWCA Civ 852, a real as opposed to a fanciful risk.
+Risk is in my view the best word because (as explained in the next paragraph) it factors in both the probability of harm and its severity.
+In understanding the practical implications of the test it is important to note that in Sivakumaran Lord Keith quoted Lord Diplocks remarks in R v Governor of Pentonville Prison, Ex p Fernandez [1971] 1 WLR 987, 994 (an extradition case) as to the relative gravity of the consequences of the courts expectation being falsified either in one way or in the other and Lord Templeman referred to his own similar remarks in R v Secretary of State for the Home Department Ex p Bugdaycay [1987] AC 514, 537.
+Where life or liberty may be threatened, the balance of probabilities is not an appropriate test.
+As Sedley LJ said in Batayav v Secretary of State for the Home Department [2003] EWCA Civ 1489, [2004] INLR 126 para 38: If a type of car has a defect which causes one vehicle in ten to crash, most people would say that it presents a real risk to anyone who drives it, albeit crashes are not generally or consistently happening.
+Getting away from metaphor, I suppose that it may be debatable whether a gay man would be at real risk of persecution (in the Convention sense) if, on returning to his own country, he would face a one in ten risk of being prosecuted and made to pay a fine, or sent to prison for a month.
+But if he would face a one in ten risk of being prosecuted and sentenced to death by public hanging from a crane there could be only one answer.
+The notion that a gay man could (and so, some might say, should) avoid trouble by adopting a discreet lifestyle (or leading an entirely celibate life) is not limited to the context of asylum law.
+It is the way in which hundreds of thousands of gay men lived in England before the enactment of the Sexual Offences Act 1967.
+But it has assumed particular importance in asylum law since gays and lesbians have become generally recognised as a particular social group for Convention purposes.
+Jenni Millbank has described this development (which she terms discretion reasoning) in From discretion to disbelief: recent trends in refugee determinations on the basis of sexual orientation in Australia and the United Kingdom (2009) 13 IJHR 391, 393 394 (most references omitted): At its baldest, discretion reasoning entailed a reasonable expectation that persons should, to the extent that it is possible, co operate in their own protection, by exercising self restraint such as avoiding any behaviour that would identify them as gay; never telling anyone they were gay; only expressing their sexuality by having anonymous sex in public places; pretending that their partner is a flatmate; or indeed remaining celibate.
+This approach subverted the aim of the Refugees Convention that the receiving state provide a surrogate for protection from the home state by placing the responsibility of protection upon the applicant: it is he or she who must avoid harm.
+The discretion approach also varied the scope of protection afforded in relation to each of the five Convention grounds by, for example, protecting the right to be openly religious but not to be openly gay or in an identifiable same sex relationship.
+The idea of discretion reflects broader social norms concerning the proper place of lesbian and gay sexuality, as something to be hidden and reluctantly tolerated, a purely private sexual behaviour rather than an important and integral aspect of identity, or as an apparent relationship status.
+The discretion approach explicitly posited the principle that human rights protection available to sexual orientation was limited to private consensual sex and did not extend to any other manifestation of sexual identity (which has been variously characterised as flaunting displaying and advertising homosexuality as well as inviting persecution).
+Thus for example in 2001 the Federal Court of Australia held that the Iranian Penal Code prohibiting homosexuality and imposing a death penalty did place limits on the applicants behaviour; the applicant had to avoid overt and public, or publicly provocative homosexual activity.
+But having to accept those limits did not amount to persecution. (Nezhadian v Minister for Immigration and Multicultural Affairs [2001] FCA 1415, para 12).
+On appeal, the full Federal Court endorsed the view that public manifestation of homosexuality is not an essential part of being homosexual (WABR v Minister for Immigration and Multicultural Affairs [2002] FCAFC 124, para 23).
+The discretion approach thus has had wide reaching ramifications in terms of framing the human rights of lesbians and gay men to family life, freedom of association and freedom of expression as necessarily lesser in scope than those held by heterosexual people.
+This approach has been brought to an end, for the purposes of Australian asylum law, by the majority decision of the High Court of Australia in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.
+The High Court divided by four to three in favour of allowing the appeal and remitting the case (though the tribunal to which the case was remitted decided that S395/2002 and his co applicant S396/2002 were not gay after all this fact, recorded by Jenni Millbank in her article, is reflected in its title).
+The minority (Gleeson CJ and Callinan and Heydon JJ) considered that the tribunal had not erred in law.
+The majority consisted of McHugh and Kirby JJ who joined in one judgment, and Gummow and Hayne JJ who joined in another.
+I find the joint judgment of Gummow and Hayne JJ illuminating and compelling.
+Lord Hope and Lord Rodger have quoted parts of paras 81 and 82 but I think it helpful to set out the whole section (paras 78 83) which appears under the heading Discretion and being discreet: The central question in any particular case is whether there is a well founded fear of persecution.
+That requires examination of how this applicant may be treated if he or she returns to the country of nationality.
+Processes of classification may obscure the essentially individual and fact specific inquiry which must be made.
+The dangers of arguing from classifications are particularly acute in matters in which the applicants sexuality is said to be relevant.
+Those dangers lie within the notions of discretion and being discreet: terms often applied in connection with some aspects of sexual expression.
+To explain why use of those terms may obscure more than they illuminate, it is useful to begin by considering Convention reasons other than membership of a social group defined in terms of sexual identity.
+If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief.
+But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question.
+And to say to an applicant that he or she should be discreet about such matters is simply to use gentler terms to convey the same meaning.
+The question to be considered in assessing whether the applicants fear of persecution is well founded is what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences.
+It is important to recognise the breadth of the assertion that is made when, as in the present case, those seeking protection allege fear of persecution for reasons of membership of a social group identified in terms of sexual identity (here, homosexual men in Bangladesh).
+Sexual identity is not to be understood in this context as confined to engaging in particular sexual acts or, indeed, to any particular forms of physical conduct.
+It may, and often will, extend to many aspects of human relationships and activity.
+That two individuals engage in sexual acts in private (and in that sense discreetly) may say nothing about how those individuals would choose to live other aspects of their lives that are related to, or informed by, their sexuality.
+Saying that an applicant for protection would live discreetly in the country of nationality may be an accurate general description of the way in which that person would go about his or her daily life.
+To say that a decision maker expects that that person will live discreetly may also be accurate if it is read as a statement of what is thought likely to happen.
+But to say that an applicant for protection is expected to live discreetly is both wrong and irrelevant to the task to be undertaken by the Tribunal if it is intended as a statement of what the applicant must do.
+The Tribunal has no jurisdiction or power to require anyone to do anything in the country of nationality of an applicant for protection.
+Moreover, the use of such language will often reveal that consideration of the consequences of sexual identity has wrongly been confined to participation in sexual acts rather than that range of behaviour and activities of life which may be informed or affected by sexual identity.
+No less importantly, if the Tribunal makes such a requirement, it has failed to address what we have earlier identified as the fundamental question for its consideration, which is to decide whether there is a well founded fear of persecution.
+It has asked the wrong question.
+Addressing the question of what an individual is entitled to do (as distinct from what the individual will do) leads on to the consideration of what modifications of behaviour it is reasonable to require that individual to make without entrenching on the right.
+This type of reasoning, exemplified by the passages from reasons of the Tribunal in other cases, cited by the Federal Court in Applicant LSLS v Minister for Immigration and Multicultural Affairs, leads to error.
+It distracts attention from the fundamental question.
+It leads to confining the examination undertaken (as it was in LSLS) merely to considering whether the applicant had a well founded fear of persecution if he were to pursue a homosexual lifestyle in [the country of nationality], disclosing his sexual orientation to the extent reasonably necessary to identify and attract sexual partners and maintain any relationship established as a result.
+That narrow inquiry would be relevant to whether an applicant had a well founded fear of persecution for a Convention reason only if the description given to what the applicant would do on return was not only comprehensive, but exhaustively described the circumstances relevant to the fear that the applicant alleged.
+On its face it appears to be an incomplete, and therefore inadequate, description of matters following from, and relevant to, sexual identity.
+Whether or not that is so, considering what an individual is entitled to do is of little assistance in deciding whether that person has a well founded fear of persecution.
+Lord Rodger, in paras 78 80 of his judgment, adds a vivid commentary which illustrates and brings to life the general message conveyed by this part of the judgment of Gummow and Hayne JJ.
+There is a similar message in the joint judgment of McHugh and Kirby JJ (especially paras 40 43).
+But I have to say, with great respect to those two very distinguished judges, that I have difficulty with some of the reasoning in para 43, and in particular the sentence, It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct.
+I think that this sentence (together with the unexceptionable comment in para 40 that harm is persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it) have contributed to the Court of Appeal straying into error in J v Secretary of State for the Home Department [2006] EWCA Civ 1238, [2007] Imm AR 1 paras 16 and 20, an error which was followed in this case: [2009] EWCA Civ 172, paras 11, 12, 31 and 44.
+In the present case Pill LJ referred, at para 10 of his judgment, to what counsel had described as the Anne Frank principle.
+That is of course a reference to the Jewish girl who was hidden in an attic in Amsterdam for more than two years, but ultimately discovered by the Nazis and sent to a concentration camp, where she died.
+The conditions which she had to endure, confined in an attic away from the normal pleasures of childhood and in constant fear of discovery, were certainly severe enough to be described as persecution.
+But in the context of a claim to asylum under the Convention this approach may be an unnecessary complication, and lead to confusion.
+The essential question in these cases is whether the claimant has a well founded fear of persecution as a gay man if returned to his own country, even if his fear (possibly in conjunction with other reasons such as his familys feelings) would lead him to modify his behaviour so as to reduce the risk.
+There are some countries in which a gay couple who lived together quite openly, and made no attempt to conceal their affection, even in public places, would be inviting persecution (an expression used in R v Secretary of State for the Home Department, Ex p Binbasi [1989] Imm AR 595, p 4).
+That is an unfortunate expression.
+Some people who risk martyrdom have complex motivation and appear to others to be stubborn and wrong headed. (John Donne, who was born a Catholic and knew a lot about persecution from his own familys experiences, wrote a prose work entitled Pseudo Martyr, published in 1610, deploring the intransigence of some loyal Catholics.) But neither the most courageous nor the most timorous forfeit protection as asylum seekers if, in their different ways, they satisfy the test of a well founded fear of persecution because of their sexuality.
+I respectfully concur in para 82 of Lord Rodgers judgment, setting out the approach to be followed by tribunals in cases of this sort.
+It involves (as Gummow and Hayne JJ put it in S395, para 78) an essentially individual and fact specific inquiry.
+It will often be a difficult task since much of the relevant evidence will come from the claimant, who has a strong personal interest in its outcome.
+For these reasons, and for the fuller reasons given by Lord Rodger, I would allow both appeals and remit them to the tribunal for reconsideration in the light of Lord Rodgers judgment.
+LORD COLLINS
+I agree that the appeal should be allowed for the reasons given by Lord Rodger and that the approach to be followed by tribunals should be as he proposes in paragraph [82] of his judgment.
+In the context of cases such as this, the use of the words discretion and discreetly tends to obscure the point that what is really involved is concealment of sexual orientation.
+The relevant question is whether the applicant has a well founded fear of being persecuted for reasons of membership of a particular social group: Refugee Convention, article 1A(2).
+Persecution is sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognised by the international community, or an affront to internationally accepted human rights norms, and in particular the core values of privacy, equality and dignity: Horvath v Secretary of State for the Home Department [2001] 1 AC 489, 495; Amare v Home Secretary [2005] EWCA Civ 1600, [2006] Imm AR 217, [17].
+The test of reasonable tolerability adopted by Buxton LJ in Z v Secretary of State for the Home Department [2004] EWCA Civ 1578, [2005] Imm AR 75 at [17], and applied by Maurice Kay LJ in J v Secretary of State for the Home Department [2006] EWCA Civ 1238, [2007] Imm AR 73 at [16], and Pill LJ in the present case at [31] was based on a misunderstanding of the passage in the judgment of McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration [2003] HCA 71,(2003) 216 CLR 473, at [40], when they said: [40] Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to state sponsored or condoned discrimination in social life and employment.
+Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it.
+But persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality.
+The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps reasonable or otherwise to avoid offending the wishes of the persecutors.
+Nor would it give protection to membership of many a particular social group if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution.
+Similarly, it would often fail to give protection to people who are persecuted for reasons of race or nationality if it was a condition of protection that they should take steps to conceal their race or nationality.
+The idea of reasonable toleration was plainly being mentioned in the context of what amounts to persecution and not in the context of what they described as taking avoiding action or where members of the group hide their membership or modify some attribute or characteristic of the group to avoid persecution.
+If a person would have to conceal his sexual identity because of a well founded fear of persecution, he does not cease to have that well founded fear even if the concealment will be successful: see also NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29, (2005) 216 ALR 1; SZATV v Minister for Immigration and Citizenship [2007] HCA 40, (2007) 233 CLR 18; Refugee Appeal No 74665/03 [2005] INLR 68 (NZ Refugee Status Appeals Authority, Mr Haines QC).
+A similar, though not identical, approach has been adopted in Canada and the United States.
+Thus in Atta Fosu v Canada (Citizenship and Immigration) 2008 FC 1135 (Federal Court of Canada, Zinn J) it was held that to say that an internal flight alternative existed if the homosexual refugee claimant lived a discreet existence, was to say that it was not an internal flight alternative.
+The applicant was a Ghanaian citizen who claimed to fear persecution by the police and the family of his former same sex partner, on the basis of his homosexuality.
+The immigration board found that the applicant could live as a homosexual, discreetly, in the city of Accra, and therefore that an internal flight alternative existed for the applicant and therefore held that no determination on his identity as a homosexual needed to be made.
+The court held that the decision was unreasonable because it required the applicant to deny or hide the innate characteristic which formed the basis of his claim of persecution.
+See also Sadeghi Pari v Canada (Minister of Citizenship and Immigration), 2004 FC 282.
+In the United States it was said in Karouni v Gonzales, 399 F 3d 1163, 1173 (9th Cir 2005) that by arguing that the homosexual applicant could avoid persecution by living a life of celibacy in Lebanon, the Attorney General was essentially arguing that the law required him to change a fundamental aspect of his human identity.
+See also, for a full discussion of the suggestion that applicants could hide their religion to avoid persecution, Kazemzadeh v US Attorney General, 577 F 3d 1341 (11th Cir 2009), following Iao v Gonzales, 400 F 3d 530, 532 (7th Cir 2005), Zhang v Ashcroft, 388 F 3d 713, (9th Cir.2004); Woldemichael v Ashcroft, 448 F 3d 1000 (8th Cir 2006).
+These principles also answer the Anne Frank question which is discussed in the case law and which was the subject of argument on this appeal.
+In Win v Minister for Immigration and Multicultural Affairs [2001] FCA 132, a political opinion case, the Minister argued that the Tribunal was only required, under the terms of the Convention, to consider whether the applicants would be punished for their political opinions; and that since the applicants had claimed to have operated clandestinely in the past and gave no indication that they would not do so in the future, it was appropriate for the Tribunal merely to ask what the prospects were that the authorities would discover their activities in the future.
+Madgwick J said (at [18]): upon the approach suggested by counsel for the [Minister], Anne Frank, terrified as a Jew and hiding for her life in Nazi occupied Holland, would not be a refugee: if the Tribunal were satisfied that the possibility of her being discovered by the authorities was remote, she would be sent back to live in the attic.
+It is inconceivable that the framers of the Convention ever did have, or should be imputed to have had, such a result in contemplation.
+In this case the Secretary of State argued that had Anne Frank escaped to the United Kingdom, and had it been found (improbably, as the Secretary of State recognised) that on return to Holland she would successfully avoid detection by hiding in the attic, then she would not be at real risk of persecution by the Nazis, and the question would be whether permanent enforced confinement in the attic would itself amount to persecution.
+Simply to re state the Secretary of States argument shows that it is not possible to characterise it as anything other than absurd and unreal.
+It is plain that it remains the threat to Jews of the concentration camp and the gas chamber which constitutes the persecution.
+SIR JOHN DYSON SCJ
+On the findings of the tribunals, HJ and HT would have a well founded fear of persecution if, on return to Iran and Cameroon respectively, they were to live openly as gay men.
+Their claims for asylum failed because it was found that on their return they would conceal their sexual orientation and live discreet lives.
+I agree that these appeals should be allowed for the reasons given by Lord Rodger.
+In view of the importance of the issues, I would like to add a few words of my own.
+How can a gay man, who would have a well founded fear of persecution if he were to live openly as a gay man on return to his home country, be said to have a well founded fear of persecution if on return he would in fact live discreetly, thereby probably escaping the attention of those who might harm him if they were aware of his sexual orientation? It is well established that in asylum cases it is necessary for the decision maker to determine what the asylum seeker will do on return: see Ahmad v Secretary of State for the Home Department [1990] Imm AR 61.
+Thus, the asylum seeker who could avoid persecution on his return, but who (however unreasonably) would not do so is in principle a refugee within the meaning of the Convention.
+At first sight, therefore, it might be thought that this should lead to the conclusion that, if a gay man would live discreetly on return and thereby avoid being harmed or persecuted on account of his sexual orientation, he could not have a well founded fear of persecution within the meaning of article 1A(2) of the Convention.
+I shall call this the prima facie interpretation.
+But none of the parties to this appeal argues for this interpretation, although their reasons for not doing so differ fundamentally.
+Reasons why the prima facie interpretation must be rejected
+The Convention must be construed in the light of its object and purpose, which is to protect a person who owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.
+If the price that a person must pay in order to avoid persecution is that he must conceal his race, religion, nationality, membership of a social group or political opinion, then he is being required to surrender the very protection that the Convention is intended to secure for him.
+The Convention would be failing in its purpose if it were to mean that a gay man does not have a well founded fear of persecution because he would conceal the fact that he is a gay man in order to avoid persecution on return to his home country.
+A purposive approach to the meaning of refugee was adopted by McHugh and Kirby JJ in the S395/2002 decision (2003) 216 CLR 473, at para 41 where they said: The object of the signatories to the Convention was to protect the holding of such beliefs, opinions, membership and origins by giving the persons concerned refuge in the signatory countries when their country of nationality would not protect them.
+It would undermine the object of the Convention if the signatory countries required them to modify their beliefs or opinions or to hide their race, nationality or membership of particular social groups before those countries would give them protection under the Convention.
+Like Lord Rodger, I would follow this approach which has been substantially followed in Australia.
+I do not find it necessary to examine the Australian authorities to which we were referred.
+It is perhaps sufficient to refer to the paper by Jenni Millbank From discretion to disbelief: recent trends in refugee determinations on the basis of sexual orientation in Australia and the United Kingdom (2009) 13 (2 3) IJHR 391 414.
+This paper explores the impact of the S395/2002 decision on the refugee jurisprudence of Australia and the United Kingdom five years on.
+It shows that the reasoning of the majority judgments is being generally applied in Australia, but that there has been a clear shift away from discretion towards disbelief as the major area of contest in decisions since S395 and S396, with a significant increase in decisions where the applicants claim to actually being gay, lesbian, or bisexual is outright rejected.
+The somewhat different analysis of the problem adopted in New Zealand also leads to a rejection of the prima facie interpretation and to the same overall conclusion that a persons claim to refugee status is not to be denied even if on return he will act discreetly in order to avoid being persecuted.
+On this analysis, which is expounded very fully in the leading case of Refugee Appeal No 74665/03 [2005] INLR 68, the emphasis is on the fact that refugee status cannot be denied to a person who on return would forfeit a fundamental human right in order to avoid persecution.
+Like Lord Rodger, I see the attractions of this approach.
+It gives due weight to the fact that the Convention must be interpreted in accordance with its broad humanitarian objective and having regard to the principles, expressed in the preamble, that human beings should enjoy fundamental rights and freedoms without discrimination and that refugees should enjoy the widest possible exercise of these rights and freedoms: see per Lord Bingham in Fornah v Secretary of State for the Home Department [2007] 1 AC 412 at para 10.
+An interpretation of article 1A(2) of the Convention which denies refugee status to gay men who can only avoid persecution in their home country by behaving discreetly (and who say that on return this is what they will do) would frustrate the humanitarian objective of the Convention and deny them the enjoyment of their fundamental rights and freedoms without discrimination.
+The right to dignity underpins the protections afforded by the Refugee Convention: see Canada (AG) v Ward [1993] 2 SCR 689, approving Professor Hathaway, Law of Refugee Status, 1991, p 108: The dominant view, however, is that refugee law ought to concern itself with actions which deny human dignity in any key way, and that the sustained or systemic denial of core human rights is the appropriate standard.
+A particular attraction of the New Zealand approach is that, as was said at [2005] INLR 68, para 120 of the decision delivered by RPG Haines QC, it facilitates a determination of: whether the proposed action by the claimant is at the core of the right or at its margins and whether the prohibition or restriction imposed by the state is lawful in terms of international human rights law.
+If the proposed action is at the core of the right and the restriction unlawful, we would agree that the claimant has no duty to avoid the harm by being discreet or complying with the wishes of the persecutor.
+If, however, the proposed activity is at the margin of the protected interest, then persistence in the activity in the face of the threatened harm is not a situation of being persecuted for the purposes of the Refugee Convention.
+The individual can choose to carry out the intended conduct or to act reasonably or discreetly in order to avoid the threatened serious harm.
+None of these choices, however, engages the Refugee Convention.
+It is open to question how far the distinction between harmful action at the core of the right and harmful action at its margin is of relevance in cases of persecution on grounds of immutable characteristics such as race and sexual orientation.
+But it is a valuable distinction and there may be more scope for its application in relation to cases concerning persecution for reasons of religion or political opinion.
+There is a yet further analysis that may be adopted which leads to the conclusion that the prima facie interpretation should be rejected.
+This is that, if a person will conceal his true identity and protected status out of a well founded fear that he will otherwise be persecuted, he will nevertheless continue to have a well founded fear of persecution even if, by concealing his true identity, he may succeed in avoiding serious harm.
+As McHugh and Kirby JJ said in S395/2002 at para 43: In manyperhaps the majority ofcases, however, the applicant has acted in the way that he or she did only because of the threat of harm.
+In such cases, the well founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm.
+It is the threat of serious harm with its menacing implications that constituted the persecutory conduct.
+In other words, the threat of serious harm and the fear of it will remain despite the avoiding behaviour.
+In Win v Minister for Immigration and Multicultural Attains (2001) FCA 132, at para 18 Madgwick J said: upon the approach suggested by counsel for the respondent, Anne Frank, terrified as a Jew and hiding for her life in Nazi occupied Holland would not be a refugee: if the Tribunal were satisfied that the possibility of her being discovered by the authorities was remote, she would be sent back to live in the attic.
+It is inconceivable that the framers of the Convention ever did have, or should be imputed to have had, such a result in contemplation.
+Even if it could be imagined that Anne Frank, as an asylum seeker, would not objectively have been at risk of being discovered in the attic, she would nevertheless have had a well founded fear of the threat of serious harm, a fear not eliminated by her decision to conceal her identity as a Jew and live in the attic.
+The Secretary of States solution: the reasonable tolerability test
+The Secretary of State recognises that it cannot have been intended that Convention protection should be denied to those who feel compelled to take extreme measures to avoid persecution.
+She does not, therefore, espouse the prima facie interpretation.
+Her case is that, if the measures that an asylum seeker would take on return to avoid persecution are not reasonably tolerable, then that of itself would amount to persecution.
+I cannot accept this.
+First, the phrase being persecuted in article 1A(2) refers to the harm caused by the acts of the state authorities or those for whom they are responsible.
+The impact of those acts on the asylum seeker is only relevant to the question whether they are sufficiently harmful to amount to persecution.
+But the phrase being persecuted does not refer to what the asylum seeker does in order to avoid such persecution.
+The response by the victim to the threat of serious harm is not itself persecution (whether tolerable or not) within the meaning of the article.
+Secondly, the test of what is reasonably tolerable is vague and difficult to apply.
+Is it a subjective test? Or does the word reasonably import the idea of the reasonable victim? If so, how for example would a decision maker determine whether it is reasonably tolerable to a person to conceal his or her sexual orientation or race? These are difficult questions which those who framed the Refugee Convention surely cannot have intended decision makers to address.
+On the Secretary of States test, it would seem that a person who feels compelled to conceal his or her protected status, but does not feel strongly about it and does not find the concealment intolerable is denied the protection of the Convention; whereas the person who does feel strongly about it and finds the concealment intolerable has the benefit of its protection.
+This differential treatment of the tolerant and the intolerant is unfair.
+It is an unprincipled and improper basis for deciding whether a person should or should not be accorded refugee status.
+The decision by the AIT in HJs case shows just how unsatisfactory the Secretary of States test is.
+The AIT comprised three very experienced immigration judges who endeavoured faithfully to apply the reasonable tolerability test prescribed for them by the Court of Appeal.
+They found at para 44 of their Determination that for 16 years HJ had been able to conduct his homosexual activities in Iran without serious detriment to his private life and without that causing him to suppress many aspects of his sexual identity (my emphasis).
+They concluded at para 45 that he would behave in the same way on his return to Iran and that it was difficult to see on the evidence that a return to that way of living can properly be characterised as likely to result in an abandonment of the appellants sexual identity.
+They said that he had been able to express his sexuality albeit in a more limited way than he can do elsewhere.
+Finally, they said at para 46: To live a private life discreetly will not cause significant detriment to his right to respect for private life, nor will it involve suppression of many aspects of his sexual identity.
+I do not understand by what yardstick the AIT measured the tolerability of these limitations and concluded that they were reasonably tolerable.
+True, HJ had endured them for 16 years, but that did not make them tolerable, let alone reasonably tolerable to him.
+He had endured them because the alternative was the real risk that he would face severe punishment at the hands of the state authorities.
+In short, there was no basis on which the tribunal could properly conclude that the fact that HJ had to conceal his identity as a gay man was reasonably tolerable to him.
+I wish to make it clear that I am not seeking to criticise the tribunal, but rather to show the nature of the task that they were asked to perform.
+Thirdly, the Secretary of State seeks to draw a distinction between the decision maker (i) requiring the asylum seeker to act discreetly on return and (ii) making a finding that the asylum seeker will in fact act discreetly on return.
+It is said that the former is impermissible and irrelevant to whether the asylum seeker has a well founded fear of persecution, whereas the latter is not only permissible but highly relevant.
+But as Lord Rodger points out, this is an unrealistic distinction.
+Most asylum seekers will opt for the life of discretion in preference to persecution.
+This is no real choice.
+If they are returned, they will, in effect, be required to act discreetly.
+Fourthly, the Secretary of States test, as formulated by the Court of Appeal in Z v Secretary of State for the Home Department [2004] EWCA Civ 1578, [2005] Imm AR 75 and applied in subsequent decisions of the Court of Appeal is based on a misunderstanding of two authorities.
+The test is founded entirely on these authorities and is not supported by any independent reasoning.
+The first misunderstanding is of para 40 of the judgment of McHugh and Kirby JJ in S395/2002.
+The sentence relied on by Buxton LJ is: Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it.
+This sentence comes in a passage which is dealing with persecution generally.
+The paragraph then goes on to say that persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality.
+The sentence relied on by Buxton LJ is saying nothing about the quality or effect of action taken to avoid persecution.
+The second misunderstanding is of the true effect of what Simon Brown LJ said in Ahmed v Secretary of State for the Home Department.
+What he said at p 7 of his judgment (quoted by Lord Rodger at para 54 above) was that an asylum seeker would have a well founded fear of persecution if he could avoid persecution on his return, but would choose not to do so (case A).
+He did not address either expressly or by implication the question whether an asylum seeker would have a well founded fear of persecution if on his return he would act discreetly to avoid the persecution that he would suffer if he lived openly (case B).
+A conclusion on case A sheds no light on the correct answer to case B.
+Fifthly, there is no support for the Court of Appeal approach in any other jurisprudence.
+This is important in view of the implicit rejection of it in a number of other jurisdictions, including at least Australia and New Zealand, and the fact that it is desirable that, so far as possible, there should be international consensus on the meaning of the Convention.
+For all these reasons, I would reject the reasonable tolerability test.
+I should add that in his judgment in the present case, Pill LJ said at para 32 that in determining whether suppression was reasonably tolerable for an individual: . a degree of respect for social norms and religious beliefs in other states is in my view appropriate.
+Both in Muslim Iran and Roman Catholic Cameroon, strong views are genuinely held about homosexual practices.
+In considering what is reasonably tolerable in a particular society, the fact finding Tribunal is in my view entitled to have regard to the beliefs held there.
+Even if I had accepted the reasonable tolerability test, I would not have felt able to agree with this passage.
+It would have been necessary to conduct the assessment by reference to objective human rights standards, and not by reference to the social mores of the home country.
+As Lord Hoffmann said in R v Immigration Appeal Tribunal, Ex p Shah [1999] 2 AC 629, 655E: The findings of fact as to discrimination have not been challenged.
+They cannot be ignored merely on the ground that this would imply criticism of the legal or social arrangements in another country.
+The whole purpose of the Convention is to give protection to certain classes of people who have fled from countries in which their human rights have not been respected.
+In Refugee Appeal No 74665/03, the New Zealand Status Appeals Authority stated at para 112: We do not accept that the domestic law of the country of origin or cultural relativity can override international human rights norms in the refugee determination context.
+I agree.
+Conclusion
+It follows that the AIT in HJs case applied the wrong test, although they are not to be criticised for having done so.
+His appeal must be allowed and his case remitted to a fresh tribunal.
+The tribunal in HTs case did not apply the reasonably tolerability test.
+But they dismissed HTs appeal on the basis that he could relocate to a different part of Cameroon, presumably on the basis that he would act discreetly there.
+Their conclusion is flawed for the simple reason that they seem to have thought that the mere fact that HT had acted discreetly in the past and would do so in the future was determinative of the issue.
+That was an error of law.
+His appeal must also be allowed and his case remitted to a fresh tribunal.
+As regards guidance for immigration judges in the future, I agree with what Lord Rodger has said at para 82.
diff --git a/UK-Abs/train-data/judgement/uksc-2009-0103.txt b/UK-Abs/train-data/judgement/uksc-2009-0103.txt
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+Private Jason Smith joined the Territorial Army in 1992, when he was 21 years old.
+In June 2003 he was mobilised for service in Iraq.
+On 26 June 2003, after a brief spell in Kuwait for purposes of acclimatisation, he arrived at Camp Abu Naji, which was to be his base in Iraq.
+From there he was moved to an old athletics stadium some 12 kilometres away, where about 120 men were billeted.
+By August temperatures in the shade were exceeding 50 degrees centigrade.
+On 9 August he reported sick, saying that he could not stand the heat.
+Over the next few days he was employed on various duties off the base.
+On the evening of 13 August he was found collapsed outside the door of a room at the stadium.
+He was rushed by ambulance to the medical centre at Camp Abu Naji but died almost immediately of hyperthermia, or heat stroke.
+Private Smiths body was brought back to this country and an inquest was held.
+The inquest suffered from procedural shortcomings.
+His mother commenced judicial proceedings in which she sought an order quashing the coroners inquisition.
+In bringing her claim Mrs Smith relied upon the Human Rights Act 1998.
+She contended that throughout the time that her son was in Iraq the United Kingdom owed him a duty to respect his right to life under article 2 of the European Convention on Human Rights and that the inquest also had to satisfy the procedural requirements of article 2.
+On more narrow grounds than these the Secretary of State conceded that Mrs Smith was entitled to the relief that she sought, and a new inquest is to be held.
+Two issues of public importance have been raised by her claim.
+Is a soldier on military service abroad in Iraq subject to the protection of the Human Rights Act 1998 (the HRA) when outside his base? I shall call this the jurisdiction issue.
+If so, must the death of such a soldier be the subject of an inquest that satisfies the procedures that article 2 of the European Convention on Human Rights (the Convention) implicitly requires where there is reason to believe that a death may be attributable to default on the part of a public authority? I shall call this the inquest issue.
+These issues are largely academic inasmuch as the Secretary of State has conceded that a fresh inquest must be held in relation to Private Smiths death that satisfies those Convention requirements a concession which does not, of course, bind the Coroner.
+The courts below have nonetheless been prepared to entertain them because of their importance and this court has done the same.
+The jurisdiction issue
+Mrs Smith succeeded on this issue, both at first instance and before the Court of Appeal.
+Section 6(1) of the HRA provides: It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
+Section 1 defines the Convention rights as including articles 2 to 12 and 14 of the Convention.
+It is common ground that the HRA is capable of applying outside the territorial jurisdiction of the United Kingdom, but that section 6(1) will only be infringed by conduct that the Strasbourg Court would hold to have violated a Convention right.
+This was determined by the House of Lords in R (Al Skeini) v Secretary of State for Defence [2008] AC 153.
+It follows that, in order to decide whether conduct has infringed section 6(1) of the HRA it is necessary to consider the ambit of application of the Convention.
+More particularly, no claim can succeed under the HRA unless there has been a breach of a Convention right of a person within the jurisdiction of the United Kingdom that should have been secured pursuant to article 1.
+Article 1 of the Convention provides: The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention.
+The jurisdiction issue is whether, on the true interpretation of article 1, British troops operating on foreign soil fall within the jurisdiction of the United Kingdom.
+There has recently grown a small body of authority, both in this country and at Strasbourg, dealing with the application of the Convention to the activities of armed forces on foreign soil.
+The Grand Chamber sat to consider this question in Bankovic v United Kingdom (2001) 11 BHRC 435, which has been recognised both in this country and at Strasbourg as a leading case on the scope of jurisdiction under article 1.
+I propose to start by considering that case.
+Bankovic
+Five of the applicants in Bankovic were close relatives of civilians killed by air strikes carried out on a radio and television centre in Belgrade by members of NATO, when intervening in the Kosovo conflict in 1999.
+The sixth applicant had himself been injured in the raids.
+The critical issue in relation to admissibility was whether the applicants and their deceased relatives came within the jurisdiction of the respondent States within the meaning of article 1 of the Convention.
+The applicants founded their case on the reasoning of the Court in Loizidou v Turkey (1995) 20 EHRR 99.
+The Court held in that case that a Greek Cypriot, who claimed in relation to the dispossession of her property in Northern Cyprus, was potentially within the jurisdiction of Turkey for the purposes of article 1 by reason of the fact that Turkey exercised effective control of Northern Cyprus.
+The applicants in Bankovic accepted that they could not contend that the action of the member States in bombing Belgrade put them under an obligation in relation to the observance of all of the Convention rights in the area bombed, but argued that they should be held accountable for those rights that did fall within their control, and in particular the right to life of those whom they bombed.
+The Court applied the principles agreed in the Vienna Convention on the Law of Treaties 1969 (the Vienna Convention) to the task of interpreting article 1.
+Thus it paid primary regard to the natural meaning of the words used, but also took into consideration the travaux prparatoires (the travaux) and State practice.
+This approach contrasted with the approach that the Strasbourg Court has adopted of treating the Convention as a living instrument when considering the manner in which it operates.
+The Court recognised this at paras 64 and 65 but commented that the scope of article 1 was determinative of the scope and reach of the entire Convention system of human rights protection.
+The Court was indicating that the meaning of article 1, and thus the scope of application of the Convention, could not change over time, and this seems plainly correct as a matter of principle.
+I shall describe this as the original meaning principle.
+The Court approached the natural meaning of jurisdiction on the premise that this had to be consonant with the meaning of that word under principles of public international law.
+Under these principles the jurisdictional competence of a State was primarily territorial.
+Thus: article 1 of the Convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each caseIn keeping with the essentially territorial notion of jurisdiction, the court has accepted only in exceptional cases that acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of article 1 of the Convention. (paras 61 and 67)
+Thus the Court held that jurisdiction in article 1 was not limited to the territory over which a State exercises lawful authority.
+It extended in exceptional circumstances requiring special justification to other bases of jurisdiction.
+The difficulty in delineating article 1 jurisdiction arises in identifying and defining the exceptions to territorial jurisdiction.
+The Court recognised that one such exception arose where a member State had taken effective control of part of the territory of another member State.
+I shall call this the principle of effective territorial control.
+Loizidou v Turkey exemplified this jurisdiction.
+The Court justified this exception by remarking at para 80 that the inhabitants of Northern Cyprus would have found themselves excluded from the benefits of the Convention safeguards and system which they had previously enjoyed by Turkeys effective control of the territory and by the accompanying inability of the Cypriot Government, as a contracting State, to fulfil the obligations that it had undertaken under the Convention.
+Thus the Court appeared to restrict the principle of effective territorial control to the territories of the contracting States.
+The Court made the following comments about this head of jurisdiction: 71.
+In sum, the case law of the Court demonstrates that its recognition of the exercise of extra territorial jurisdiction by a contracting state is exceptional: it has done so when the respondent state, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the government of that territory, exercises all or some of the public powers normally to be exercised by that government. 80.
+In short, the Convention is a multi lateral treaty operating, subject to article 56 of the Convention, in an essentially regional context and notably in the legal space (espace juridique) of the contracting states.
+The FRY clearly does not fall within this legal space.
+The Convention was not designed to be applied throughout the world, even in respect of the conduct of contracting states.
+Accordingly, the desirability of avoiding a gap or vacuum in human rights protection has so far been relied on by the Court in favour of establishing jurisdiction only when the territory in question was one that, but for the specific circumstances, would normally be covered by the Convention.
+Article 56 enables a Contracting State to declare that the Convention shall extend to all or any of the territories for whose international relations the State is responsible.
+Thus, implicitly and paradoxically, the principle of effective territorial control does not appear to apply automatically to such territories see also Bui van Thanh v United Kingdom (1990) 33 Yearbook of the European Convention on Human Rights 59 at p 61; Loizidou v Turkey at paras 86 87; Yonghong v Portugal Reports of Judgments and Decisions 1999 IX, pp 385, 391 392.
+The Court rejected the suggestion that extra territorial acts could bring individuals within the jurisdiction for the purposes of some Convention rights but not others.
+It said at para 75: the court is of the view that the wording of article 1 does not provide any support for the applicants suggestion that the positive obligation in article 1 to secure the rights and freedoms defined in Section I of this Convention can be divided and tailored in accordance with the particular circumstances of the extra territorial act in question and, it considers its view in this respect supported by the text of article 19 of the Convention.
+Indeed the applicants approach does not explain the application of the words within their jurisdiction in article 1 and it even goes so far as to render those words superfluous and devoid of any purpose.
+Had the drafters of the Convention wished to ensure jurisdiction as extensive as that advocated by the applicants, they could have adopted a text the same as or similar to the contemporaneous articles 1 of the four Geneva Conventions of 1949.
+I shall describe this as the whole package principle.
+The Court singled out for special mention as an example of an exceptional case of extra territorial jurisdiction that fell within article 1, the case of Drozd and Janousek v France and Spain (1992) 14 EHRR 745.
+I shall consider this decision in due course.
+The Court noted a number of other examples of States exercising extra territorial jurisdiction, implying, I believe, that those affected would be within the jurisdiction of the State in question within the meaning of article 1: Additionally, the Court notes that other recognised instances of the extra territorial exercise of jurisdiction by a state include cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that state.
+In these specific situations, customary international law and treaty provisions have recognised the extra territorial exercise of jurisdiction by the relevant state.
+The applicants in Bankovic also relied on two admissibility decisions that proceeded on a different basis of article 1 jurisdiction that has been described as state agent authority, namely de facto control by state agents of persons as opposed to territory, Issa v Turkey (Application No 31821/96) (unreported) 30 May 2000 and calan v Turkey (Application No 46221/99) (unreported) 14 December 2000.
+The Grand Chamber swept these aside with the comment that in neither case was the issue of jurisdiction raised by the respondent Government, adding that the merits of those cases had yet to be decided.
+The respondent Governments in Bankovic, including the United Kingdom, had in fact accepted the existence of jurisdiction in those cases on the basis that it was the assertion or exercise of legal authority, actual or purported, over persons owing some form of allegiance to that state or who have been brought within that states control.
+Mr Eadie QC, for the Secretary of State, has not in this Court accepted any general principle whereby article 1 jurisdiction can be based on the exercise of control by State agents over individuals as opposed to territory.
+It is convenient at this point to consider the treatment by the Strasbourg Court of the question of jurisdiction on the substantive hearings in those two cases.
+calan and Issa
+In calan (2005) 41 EHRR 985 the applicant, a Turk, was handed over to Turkish officials aboard a Turkish aircraft at Nairobi.
+At the substantive hearing, following that before the Court (2003) 37 EHRR 238, the Grand Chamber recorded at para 91 that it was common ground that, directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was under effective Turkish authority and therefore within the jurisdiction of that state for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory.
+It is true that the applicant was physically forced to return to Turkey by Turkish officials and was under their authority and control following his arrest and return to Turkey.
+The substantive hearing in Issa (2004) 41 EHRR 567 took place before the Second Section, three members of which had been party to the decision in Bankovic.
+The applicants, Iraqi nationals, alleged that their relatives had been unlawfully arrested, detained, ill treated and killed by Turkish troops in the course of a military operation in Northern Iraq.
+The claim failed because they were unable to prove this.
+The Court had, however, permitted Turkey to challenge the existence of article 1 jurisdiction, albeit that no challenge on this ground had been made at the admissibility hearing.
+The Court at paras 68 69 referred to the substantive decision in Loizidou v Turkey (1996) 23 EHRR 513, para 52 for the proposition that: According to the relevant principles of international law, a States responsibility may be engaged where, as a consequence of military action whether lawful or unlawful that State in practice exercises effective control of an area situated outside its national territory.
+The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control, whether it be exercised directly, through its armed forces, or through a subordinate local administration.
+The Court went on to say, at para 71: Moreover, a State may also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former States authority and control through its agents operating whether lawfully or unlawfully in the latter State.(Citations omitted).
+This clearly advances state agent authority as an alternative to effective territorial control as a basis of article 1 jurisdiction.
+Al Skeini
+The implications of the Strasbourg Courts decision in Bankovic received detailed analysis in Al Skeini in the Divisional Court, the Court of Appeal and the House of Lords.
+This Court ought to consider the conclusions of the House of Lords to be definitive unless these have plainly been invalidated by subsequent decisions of the Strasbourg Court.
+The claimants were relatives of six Iraqi civilians who had been killed by or in the course of operations by British soldiers in the period following completion of major combat operations in Iraq and before the assumption of authority by the Iraqi Interim Government.
+Five of these were shot in separate incidents in Basra.
+The sixth, Mr Baha Mousa, was beaten to death by British troops while detained in a British military detention unit.
+The claimants sought independent enquiries into these deaths, relying upon the HRA.
+Two preliminary issues were before the Court.
+Did the HRA apply outside the territorial jurisdiction and were the six Iraqi citizens within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention? The House, Lord Bingham dissenting, answered the first question in the affirmative.
+So far as concerns the second question, the ambit of article 1 had been exhaustively considered by the Divisional Court [2004] EWHC 2911 (Admin); [2007] QB 140 which had analysed chronologically all the relevant Strasbourg authorities, including Bankovic.
+The court concluded that these established that the primary meaning of within their jurisdiction in article 1 was within the territorial jurisdiction of the contracting States, subject to a number of exceptions.
+There was no general exception whereby those subject to the exercise of state agent authority fell within the article 1 jurisdiction of the State.
+Insofar as Issa had held to the contrary, it should be disregarded as inconsistent with the decision in Bankovic.
+The Court of Appeal [2005] EWCA Civ 1609; [2007] QB 140 differed on the last point, holding that Issa was authoritative and demonstrated that article 1 jurisdiction was established by the exercise of control over individuals by State agents, both within and outside the jurisdiction of contracting States.
+The House of Lords preferred the reasoning of the Divisional Court.
+The majority approached the issue of article 1 jurisdiction on the footing that this was essentially a matter for the Strasbourg court and the House should not construe article 1 as having any further reach than that established by that Court.
+As to that pre eminence should be given to the decision of the Grand Chamber in Bankovic.
+The House was, however, faced with the fact that, so far as Mr Baha Mousa was concerned, the Secretary of State had accepted that, because he died as a result of misconduct that took place at a detention centre within a British military base, he met his death within the jurisdiction of the United Kingdom for the purposes of article 1.
+The claimants sought to rely on a principle of state agent authority, arguing that if such authority was exercised over individuals, this brought them within the jurisdiction for purposes of article 1.
+The majority was troubled by the fact that some statements of the Court in Issa were hard to reconcile with Bankovic, and particularly with the whole package principle.
+Insofar as Issa could not be reconciled with Bankovic, the majority held that it should be disregarded.
+Thus Lord Rodger held, at para 79: the whole package of rights applies and must be secured where a contracting state has jurisdiction.
+This merely reflects the normal understanding that a contracting state cannot pick and choose among the rights in the Convention: it must secure them all to everyone within its jurisdiction.
+If that is so, then it suggests that the obligation under article 1 can arise only where the contracting state has such effective control of the territory of another state that it could secure to everyone in the territory all the rights and freedoms in section 1 of the Convention.
+Lord Brown carried out a detailed analysis of the Strasbourg jurisprudence.
+He recognised some narrow categories where the Strasbourg Court had found article 1 jurisdiction in circumstances where the State had not got territorial control irregular extradition such as calan and activities of embassies and consulates.
+These exceptions apart, Lord Brown considered the whole package principle to be of importance: 128.
+There is one other central objection to the creation of the wide basis of jurisdiction here contended for by the appellants under the rubric control and authority, going beyond that arising in any of the narrowly recognised categories already discussed and yet short of that arising from the effective control of territory within the Council of Europe area.
+Bankovic (and later Assanidze) stands, as stated, for the indivisible nature of article 1 jurisdiction: it cannot be divided and tailored.
+As Bankovic had earlier pointed out, at para 40: the applicants interpretation of jurisdiction would invert and divide the positive obligation on contracting states to secure the substantive rights in a manner never contemplated by article 1 of the Convention.
+When, moreover, the Convention applies, it operates as a living instrument. calan provides an example of this, a recognition that the interpretation of article 2 has been modified consequent on the territories encompassed by the member states of the Council of Europe [having] become a zone free of capital punishment: para 195. (Paras 64 and 65 of Bankovic, I may note, contrast on the one hand the Conventions substantive provisions and the competence of the Convention organs, to both of which the living instrument approach applies and, on the other hand, the scope of article 1 the scope and reach of the entire Convention to which it does not.) Bear in mind too the rigour with which the court applies the Convention, well exemplified by the series of cases from the conflict zone of south eastern Turkey in which, the states difficulties notwithstanding, no dilution has been permitted of the investigative obligations arising under articles 2 and 3. 129.
+The point is this: except where a state really does have effective control of territory, it cannot hope to secure Convention rights within that territory and, unless it is within the area of the Council of Europe, it is unlikely in any event to find certain of the Convention rights it is bound to secure reconcilable with the customs of the resident population.
+Applying Bankovic, the majority held that the five Iraqi citizens who had been killed in Basra were not within the jurisdiction of the United Kingdom for the purposes of article 1.
+Lord Brown indicated that he would recognise the United Kingdoms jurisdiction over Mr Baha Mousa only on the basis of an analogy with the extra territorial exception made for embassies.
+However, in a subsequent admissibility decision in Al Saadoon and Mufdhi v United Kingdom (2009) 49 EHRR SE 95 the Strasbourg Court has held that detainees in British detention centres in Iraq fell within United Kingdom jurisdiction by reason of the total and exclusive de facto, and subsequently de jure, control exercised by the United Kingdom authorities over the premises in question. (para 88)
+A more recent example of where the Strasbourg Court has equated control over individuals with article 1 jurisdiction is the decision of the Grand Chamber in Medvedyev and others v France (Application No 3394/03) judgment delivered on 29 March 2010.
+On the high seas a French warship boarded a merchant vessel, crewed by the applicants who were suspected of being engaged in drug smuggling and compulsorily escorted it on a 13 day voyage into Brest.
+The court held at para 67 that as the vessel and its crew were, at least de facto, under the control of France, they were effectively under Frances jurisdiction for the purposes of article 1.
+This decision, when added to that in Issa suggests that the Strasbourg Court may be prepared to found article 1 jurisdiction on state agent authority, even though this principle does not seem consistent with the approach in Bankovic.
+Gentle
+The possibility that British soldiers serving abroad were within the article 1 jurisdiction of the United Kingdom because they were under the authority of the United Kingdom was shortly dismissed by Lord Bingham in R (Gentle) v Prime Minister [2008] AC 1356.
+He said, at para 8: (3) The obligation of member states under article 1 of the Convention is to secure to everyone within their jurisdiction the rights and freedoms in the Convention.
+Subject to limited exceptions and specific extensions, the application of the Convention is territorial: the rights and freedoms are ordinarily to be secured to those within the borders of the state and not outside.
+Here, the deaths of Fusilier Gentle and Trooper Clarke occurred in Iraq and although they were subject to the authority of the defendants they were clearly not within the jurisdiction of the UK as that expression in the Convention has been interpreted: R (Al Skeini) v Secretary of State for Defence [2008] AC 153, paras 79, 129.
+The other members of the House expressed general agreement with Lord Bingham.
+Article 1 jurisdiction was not, however, at the heart of the case, to the extent that the Court of Appeal, whose decision was upheld, had not found it necessary to decide the point.
+Gentle nonetheless lends support to the analysis of the House of Lords in Al Skeini.
+The claimants in Al Skeini have taken their case to Strasbourg and this will give the Strasbourg Court a further opportunity to clarify this difficult area of its jurisprudence.
+Submissions
+For the Secretary of State, Mr Eadie submitted that Private Smith was only within the jurisdiction of the United Kingdom when he was within territory that was under the effective control of the United Kingdom.
+On this basis he conceded that article 2 had applied during those periods when Private Smith was within the military base, which included the time of his death.
+When, however, he was not within territory controlled by the United Kingdom, he was not within article 1 jurisdiction.
+His position in those circumstances did not fall within any of the recognised exceptions to the general principle that article 1 jurisdiction was territorial.
+In so submitting he relied in particular on Bankovic, Al Skeini and Gentle.
+For Mrs Smith Miss Dinah Rose QC made it clear that her case was not based on Private Smith having been on territory under the de facto control of the United Kingdom, nor upon Private Smith himself having been under the de facto control of the Army, as a State agent, but upon the fact that Private Smith was subject to the jurisdiction of the United Kingdom as a matter of both domestic and international law.
+He was so subject by reason of his status as a member of the Armed Forces.
+Miss Rose submitted that soldiers were in the same position as other State agents, such as diplomats, consular agents and judges.
+When exercising State powers outside the territory of the State they themselves remained subject to the jurisdiction of the State.
+Mr Beloff QC appeared for the Intervener, the Equality and Human Rights Commission.
+He supported Miss Roses submissions.
+He submitted that the authorities dealing with control of territory, or control of persons, did not touch on the basis of jurisdiction asserted in this case.
+That was personal jurisdiction, which, to quote from para 17 of his written case, does not depend on a persons location.
+It is founded on the reciprocal rights and obligations of nationals and their state, wherever they may be.
+Mr Beloff accepted that the precise question of whether article 1 jurisdiction could be founded on this basis had not arisen before the Strasbourg Court.
+The decision of the Court of Appeal.
+The Court of Appeal held that article 1 required the existence of a jurisdictional link and that this requirement was satisfied in the case of Private Smith, for the reasons set out in para 29 of its judgment.
+Members of the armed forces were: subject to United Kingdom military law without territorial limit and may be tried by court martial whether the offence is committed in England or elsewhere.
+They are also subject to the general criminal and civil law.
+Soldiers serve abroad as a result of and pursuant to the exercise of United Kingdom jurisdiction over them.
+Thus the legality of their presence and of their actions depends on their being subject to United Kingdom jurisdiction and complying with United Kingdom law.
+As a matter of international law, no infringement of the sovereignty of the host state is involved in the United Kingdom exercising jurisdiction over its soldiers serving abroad.
+The Court was also influenced by what it perceived as the illogicality of holding that Private Smith was within the jurisdiction when on military premises, but not when outside them: it is accepted that a British soldier is protected by the 1998 Act and the Convention when he is at a military base.
+In our judgment, it makes no sense to hold that he is not so protected when in an ambulance or in a truck or in the street or in the desert.
+There is no sensible reason for not holding that there is a sufficient link between the solider as victim and the United Kingdom whether he is at a base or not.
+So too, if he is court martialled for an act committed in Iraq, he should be entitled to the protection of article 6 of the Convention wherever the court martial takes place.
+The meaning of jurisdiction
+interpretation.
+The first is that: Article 31 of the Vienna Treaty lays down a number of general rules of A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
+Jurisdiction has more than one ordinary meaning.
+The meanings given by the Shorter Oxford Dictionary include the following: 1.
+Exercise of judicial authority, or of the functions of a judge or legal tribunal; power of administering law or justice.
+Also, power or authority in general. 2.
+The extent or range of judicial or administrative power; the territory over which such power extends.
+Jowetts Dictionary of English Law, 2nd ed (1977), after giving the primary
+meaning of legal authority goes on to state: Jurisdiction also signifies the district or geographical limits within which the judgments or orders of a court can be enforced or executed.
+This is sometimes called territorial jurisdiction.
+Thus the phrase within the jurisdiction can bear the natural meaning subject to the authority of but can equally bear the natural meaning within the territory over which authority is exercised.
+There are different varieties of authority that can be described as jurisdiction.
+Oppenheims International Law, 9th ed (1992), vol 1, describes these and their relationship to territorial jurisdiction: 136 State jurisdiction in general State jurisdiction concerns essentially the extent of each states right to regulate conduct or the consequences of events.
+In practice jurisdiction is not a single concept.
+A states jurisdiction may take various forms.
+Thus a state may regulate conduct by legislation; or it may, through its courts, regulate those differences which come before them, whether arising out of the civil or criminal law; or it may regulate conduct by taking executive or administrative action which impinges more directly on the course of events, as by enforcing its laws or the decisions of its courts.
+The extent of a states jurisdiction may differ in each of these contexts.
+The jurisdiction concerns both international law and the internal law of each state.
+The former determines the permissible limits of a states jurisdiction in the various forms it may take, while the latter prescribes the extent to which, and manner in which, the state in fact asserts its jurisdiction. 137 Territorial jurisdiction As all persons and things within the territory of a state fall under its territorial authority, each state normally has jurisdiction legislative, curial and executive over them.
+Territoriality is the primary basis for jurisdiction; 138 Jurisdiction over citizens abroad International law does not prevent a state from exercising jurisdiction, within its own territory, over its nationals travelling or residing abroad, since they remain under its personal authority.
+Accordingly, it may legislate with regard to their conduct when abroad, levy taxes in respect of their assets or earnings abroad, or legislate in respect of their foreign property.
+In all such cases, however, the states power to enforce its laws depends upon its national being in, or returning to, its territory or having there property against which they can be enforced.
+Most human rights can only be the subject of protection, or interference, by the State if the individual who enjoys them is within the administrative, or executive, authority of the State.
+This is obviously true of the rights that protect the person, namely those protected by articles 2, 3 4 and 5 and is also true of articles 8, 9, 10, 11 and 12.
+Save in exceptional circumstances those requiring State protection of these rights will be within the territorial jurisdiction of the State in question.
+In respect of these rights it produces a perfectly sensible result to interpret within their jurisdiction in article 1 as meaning within the territorial jurisdiction of the Member States.
+Public international law recognises that both legislative and judicial authority can be exercised over individuals whether they are inside or outside the territorial jurisdiction of the State.
+The exercise of these types of jurisdiction may well have potential impact on some human rights, but not on others.
+The Strasbourg Court appears to have recognised, at least implicitly, that the exercise of these types of jurisdiction can bring those who are subject to them within the jurisdiction for purposes of article 1, whether or not they are within the territorial jurisdiction of the State, in relation to those rights that are affected.
+In such circumstances there can be no question of the whole package principle applying.
+I shall give a number of examples.
+Article 6 protects the right to a fair trial.
+The English court exercises extra territorial jurisdiction in defined circumstances in relation to civil claims.
+If a foreigner resident abroad is impleaded by a resident of this country in the English court, it is hard to believe that the Strasbourg Court would hold the English claimant entitled to the benefit of article 6 but the foreign defendant not so entitled.
+Both would be within the judicial jurisdiction of the English court and there would seem a strong case for equating that with article 1 jurisdiction in the context of the application of article 6.
+Such an approach would seem implicitly to have been accepted by the Strasbourg Court in plenary session in Drozd and Janousek v France and Spain (1992) 14 EHRR 745.
+The applicants in that case had been tried in criminal proceedings in Andorra by a Tribunal, presided over by a French judge.
+Andorra was not party to the Convention.
+The applicants complained, none the less, of violation of their article 6 rights to a fair trial.
+The Court held that the judge had not been sitting in his capacity as a French judge, but as an Andorran judge, but appears to have accepted that had this not been so the applicants would have fallen within the jurisdiction of France for the purposes of article 1 in relation to their article 6 rights.
+This would not, however, have entitled them to claim against France the benefit of protection of the rest of the Convention rights.
+What of the property rights protected by article 1 of the First Protocol? Many foreign residents own property in this country.
+Are they within the jurisdiction for the purposes of article 1? In Carson v United Kingdom (Application No 42184/05) judgment 16 March 2010 the Grand Chamber ruled admissible claims against the United Kingdom by 13 persons entitled to British State pensions for violation of article 14 of the Convention in combination with article 1 of the First Protocol.
+All the claimants had earned pensions by working in Britain, but had emigrated to South Africa, Australia or Canada on retirement.
+The report states, in para 1 that they were all British nationals, but para 21 states that one of them remained an Australian national.
+The basis of the claim was discrimination against the claimants in that their pensions were not linked to United Kingdom inflation, in contrast to the position of pensioners resident within the United Kingdom.
+Neither before the English courts nor before the Strasbourg Court was there any discussion of the basis upon which the claimants were treated as within the jurisdiction of the United Kingdom for the purposes of article 1.
+One possible answer is that because their pension rights were governed by legislation, they fell within the legislative jurisdiction of the United Kingdom in relation to those rights.
+There could be no question, however, of the United Kingdom having to afford them protection in relation to the whole package of Convention rights.
+In X v United Kingdom (1979) 15 DR 137, the Commission ruled inadmissible on the merits a claim by a British citizen, who was employed by the European Commission and resident in Brussels, for violation of article 1 of the Convention in combination with article 3 of the First Protocol.
+She complained that she had no right to vote in United Kingdom elections whereas members of the diplomatic service and the Armed Forces stationed outside the United Kingdom retained their right to vote.
+The Commission held that the discrimination was justified in that these persons were not voluntarily abroad but had been sent abroad to serve their country.
+They fell to be regarded as resident citizens, in contrast to the applicant who was living abroad voluntarily.
+It was not, however, suggested that the applicant did not fall within the article 1 jurisdiction of the United Kingdom.
+The basis for this jurisdiction was perhaps that, in relation to voting rights, nationals fall within the jurisdiction of their own State, whether or not they are within the territorial jurisdiction.
+There are other cases that suggest that where one State delegates to another State authority to control a particular area of government that engages one of the Convention rights, those subject to the exercise of the latter States authority will be deemed to be within the jurisdiction of the latter State for the purposes of article 1 in relation to that right: Drozd; X and Y v Switzerland (1977) 9 DR 57; Gentilhomme, Schaff Benhadji and Zerouki v France (Application Nos 48205/99, 48207/99, 48209/99) (unreported) 14 May 2002.
+A recent decision of the Strasbourg Court provides a variation on this theme.
+In Stephen v Malta (No 1) (2009) 50 EHRR 144 the applicant was a British subject who had been arrested and detained in Spain pursuant to an arrest warrant that had been issued by a Maltese Court that had not been competent to issue it.
+The Strasbourg Court, of its own motion, considered article 1 jurisdiction.
+It remarked at para 45: the question to be decided is whether the facts complained of by the applicant can be attributed to Malta The Court gave an affirmative answer to this question and held that the applicants complaints under article 5 engaged the responsibility of Malta under the Convention.
+No principled explanation was given for this departure from the territorial approach to article 1 jurisdiction other than the passage quoted above which, if applied generally, would render that approach nugatory.
+These cases might be thought to support a general principle that there will be jurisdiction under article 1 whenever a State exercises authority, be it legislative, judicial or executive, which affects a Convention right of a person, whether that person is within the territory of that State or not.
+So far as the exercise of executive authority is concerned, one can postulate that this requires effective control, either of territory or of individuals, before article 1 jurisdiction is established.
+The fact remains, however, that the Strasbourg Court has not propounded any such general principle.
+Nor can such a principle readily be reconciled with the proposition, approved in Bankovic, that article 1 jurisdiction is essentially territorial in nature and that other bases of jurisdiction are exceptional and require special justification in the particular circumstances of each case.
+There are compelling reasons for following the approach of the Grand Chamber in Bankovic, quite apart from the reasons that led the House of Lords to treat it as a landmark decision.
+The travaux to which the Court referred demonstrate that the contracting States were concerned with the manner in which those within their territories were treated.
+It is not credible that the change to the phrase within their jurisdiction was intended to effect a fundamental extension to the scope of the Convention without this being clearly reflected in the travaux.
+The question then is whether, applying the original meaning principle, it is right to include a States armed forces abroad as falling within the jurisdiction of the State for purposes of article 1 by reason of the special status that they enjoy.
+That is the proposition that Miss Rose advances and it is one that is, as the Grand Chamber pointed out in Bankovic, not reflected by State practice.
+It is, furthermore, almost wholly unsupported by Strasbourg jurisprudence.
+decision of the Commission in Cyprus v Turkey (1975) 2 DR 125: I say almost having regard to the following passage in the admissibility 8The Commission further observes that nationals of a State, including registered ships and aircrafts, are partly within its jurisdiction wherever they may be, and that authorised agents of a State, including diplomatic or consular agents and armed forces, not only remain under its jurisdiction when abroad but bring any other persons or property within the jurisdiction of that State, to the extent that they exercise authority over such persons or property.
+Insofar as, by their acts or omissions, they affect such persons or property, the responsibility of the State is engaged.
+I am not aware of any other Strasbourg jurisprudence that suggests that armed forces remain under the jurisdiction of a State when abroad and the reasoning of the Commission in this case was far wider than that of the Court when dealing with Turkeys jurisdiction in Northern Cyprus in Loizidou v Turkey (1995) 20 EHRR 99.
+Miss Rose drew attention to Strasbourg jurisprudence that holds that those affected by the conduct of a States diplomatic and consular officials abroad can fall within the jurisdiction of the State, which was applied by the Court of Appeal in R (B and others) v Secretary of State for Foreign and Commonwealth Affairs [2004] EWCA Civ 1344; [2005] QB 643.
+She submitted that it followed from this that such officials were themselves within the jurisdiction of their States and that the same principle should apply to the armed forces.
+I have some difficulty with the logic of the proposition that State agents whose acts bring those affected by them within article 1 jurisdiction must, in consequence, themselves also be within the article 1 jurisdiction of the State whose agents they are but, more fundamentally, it does not seem to me that the analogy between diplomatic and consular officials and members of the armed forces is compelling.
+More compelling were the points made by Miss Rose in relation to the unique status of members of the armed forces.
+When the Convention was agreed men who were British citizens were liable to conscription under the National Service (Armed Forces) Act 1948 and, in consequence of conscription, rendered subject to the executive authority of the armed forces and to the legislative and judicial regimes that applied to the armed forces.
+A similar situation no doubt existed in the case of other contracting States.
+Today the same is true of those who volunteer to serve in the armed forces see the description of the relevant legislation set out by Lord Mance in his judgment at para 190.
+Under domestic law and in accordance with public international law, members of the armed forces remain under the legislative, judicial and executive authority of the United Kingdom, whether serving within or outside United Kingdom territory.
+From the viewpoint of domestic law they can thus be said to be within the jurisdiction of the United Kingdom wherever they are.
+It is not attractive to postulate that, when they are outside the territorial jurisdiction in the service of their country they lose the protection afforded by the Convention and the HRA.
+That, however, is not the question.
+The question is whether, in concluding the Convention, the contracting States agreed that article 1 jurisdiction should extend to armed forces when serving abroad as an exception to the essentially territorial nature of that jurisdiction.
+What were the practical implications of so doing?
+It is not wholly realistic to consider the perceived implications of the application of the Convention in 1953 by reference to the requirements of the Convention, that have been identified by the Strasbourg Court since 1953.
+In particular, it is perhaps not realistic to apply to conditions in 1953 the positive obligations in relation to article 2 that have quite recently been laid down by the Strasbourg Court.
+It is nonetheless instructive to consider the implications of applying the Convention to armed forces serving abroad.
+It is not practicable for a State to secure many of the Convention rights and freedoms for troops in active service abroad.
+Article 2 is, however, plainly capable of being engaged.
+The safety of the lives of those fighting abroad can depend critically on the acts or omissions of State agents, covering the equipment with which they are supplied, the missions on which they are sent, and strategic and tactical decisions taken by commanders in the field.
+If the troops are within the article 1 jurisdiction of the State the question arises of how far these matters fall within the substantive obligations imposed by article 2.
+Insofar as they do, the question then arises of whether the procedural obligation arises every time a serviceman is killed in circumstances which may involve a shortcoming in the performance of those substantive obligations.
+These are questions that I shall explore when addressing the Inquest Issue.
+The Convention was agreed in the aftermath of a global conflict in which millions of troops had been deployed.
+In 1944 the United Kingdom had over 4.5 million troops serving.
+British casualties in the war numbered about 330,000.
+By 1950 the number of British troops in service had reduced to about 700,000, many of whom were conscripts.
+While the Convention was being negotiated the Korean War was in progress.
+British casualties in that war numbered about 700.
+Derogation is permitted under article 15 in time of war or other public emergency threatening the life of the nation, although there can be no derogation from article 2 except in respect of deaths resulting from lawful acts of war.
+No derogation was made, and troops were deployed abroad in circumstances falling short of those permitting derogation under article 15.
+The contracting States might well not have contemplated that the application of article 2 to troop operations abroad would have involved obligations such as those I have discussed above, but whatever the implications might have seemed, it is unlikely that they would have appeared a desirable consequence of the Convention.
+So far as this country is concerned, it is significant that when the Crown Proceedings Act 1947 rendered the Crown susceptible to civil suit an exception was made in relation to the armed forces.
+Only in 1987 did the Crown Proceedings (Armed Forces) Act remove that exception.
+This does not lie happily with the proposition that the United Kingdom bound itself to the observance of the Convention obligations toward its armed forces abroad when it ratified the Convention in 1951.
+Today the size of the forces maintained by contracting States is a fraction of those that they maintained when the Convention was agreed.
+Every death of a British serviceman abroad is now reported in the British press.
+The bodies of British servicemen who die on active service are flown back and buried in this country, and it is this fact which makes it mandatory to hold an inquest in each case.
+The care that is taken to avoid casualties and the procedures that are followed when casualties occur are to be commended, but they would not have seemed practicable in 1953.
+In Al Skeini at para 107 Lord Brown expressed the view that the House should not construe article 1 as reaching any further than the existing Strasbourg jurisprudence clearly shows it to reach.
+I endorse that comment.
+We are here dealing with the scope of the Convention and exploring principles that apply to all contracting States.
+The contention that a States armed forces, by reason of their personal status, fall within the jurisdiction of the State for the purposes of article 1 is novel.
+I do not believe that the principles to be derived from the Strasbourg jurisprudence, conflicting as some of them are, clearly demonstrate that the contention is correct.
+The proper tribunal to resolve this issue is the Strasbourg Court itself, and it will have the opportunity to do so when it considers Al Skeini.
+For these reasons I would hold that the Court of Appeal should not have held that Private Smith was within the jurisdiction of the United Kingdom within the meaning of article 1 at times when he was not within premises under the effective control of the army.
+This conclusion, and the reasoning that has led to it, accords with the comprehensive analysis of the relevant jurisprudence in the judgment of Lord Collins.
+For these reasons I would allow the appeal against the Court of Appeals order on the jurisdiction issue.
+The Inquest Issue
+The nature of the issue
+The Inquest Issue arises on the premise that Private Smith was within the jurisdiction of the United Kingdom within the meaning of article 1 at the time of the events that led to his death, so that he was entitled to the protection of article 2 of the Convention.
+Article 2 of the Convention provides: 1.
+Everyones right to life shall be protected by law.
+No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
+In R (Middleton) v West Somerset Coroner [2004] UKHL 10; [2004] 2 AC 182 the Appellate Committee of the House of Lords, in a considered opinion, summarised the Strasbourg jurisprudence as to the effect of this provision: 2.
+The European Court of Human Rights has repeatedly interpreted article 2 of the European Convention as imposing on member states substantive obligations not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life. 3.
+The European Court has also interpreted article 2 as imposing on member states a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the foregoing substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated (references omitted).
+The Inquest Issue is concerned with the procedural obligation.
+The procedural obligation requires a State, of its own motion, to carry out an investigation into a death that has the following features: i) It must have a sufficient element of public scrutiny of the investigation or its results. ii) It must be conducted by a tribunal that is independent of the state agents who may bear some responsibility for the death. iii) The relatives of the deceased must be able to play an appropriate part in it. iv) It must be prompt and effective.
+This means that it must perform its essential purposes.
+These are to secure the effective implementation of the domestic laws which protect the right to life and to ensure the accountability of state agents or bodies for deaths occurring under their responsibility.
+These features are derived from the Strasbourg jurisprudence, as analysed in Middleton and R (L (A Patient)) v Secretary of State for Justice [2008] UKHL 68; [2009] AC 588.
+I shall describe an investigation that has these features as an article 2 investigation.
+The procedural obligation implicit in article 2 was first recognised by the Strasbourg Court in McCann v United Kingdom (1995) 21 EHRR 97.
+Since then the Court has repeatedly found such an obligation to have existed, but always in the context of a case in which the respondent State has been held to have been in breach of a substantive obligation imposed by article 2.
+This is no doubt because complaints of violation of the procedural obligation of article 2 are only likely to be brought by relatives before the Strasbourg Court where these are ancillary to complaints of substantive breaches of article 2.
+It has been stated on a number of occasions that the procedural obligation under article 2 is parasitic upon the existence of the article 2 substantive right and cannot exist independently see, for example, Lord Binghams observations at para 6 of Gentle.
+The Inquest Issue has been formulated in the agreed Statement of Facts and Issues as follows: Whether the fresh inquest into Private Smiths death must conform with the procedural obligation implied into Article 2 of the Convention.
+In the first inquest the Coroner gave a narrative verdict which included the finding that Private Smiths death was caused by a serious failure to recognise and take appropriate steps to address the difficulty that he had in adjusting to the climate.
+Subsequently, on 5 January 2007 the Coroner gave a ruling holding that the requirements of article 2 did not apply to the inquest because any shortcomings related to a failure to follow the procedures that should have applied and not to any defects in those procedures, so that there was no question of any substantive breach of article 2.
+The basis upon which Mrs Smith has successfully challenged this ruling has raised an important issue of principle.
+Both Miss Rose and Mr Beloff have contended that an article 2 investigation must be held whenever a member of the armed services dies on active service and the Court of Appeal has so found.
+The argument has proceeded on the following basis.
+There are two different types of inquest.
+The first has the features that the Court of Appeal identified in R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1 (a Jamieson inquest).
+The second has the features that the House of Lords identified in R (Middleton) v West Somerset Coroner [2004] UKHL 10; [2004] 2 AC 182 (a Middleton inquest).
+If the requirements of article 2 apply, the coroner must conduct a Middleton inquest.
+The Middleton inquest will address any alleged failures on the part of the State to comply with the substantive obligations imposed by article 2.
+Before addressing the Inquest Issue directly I propose to explain a number of reservations that I have in relation to the procedural obligation: i) I do not see how the procedural obligation can work if it is limited to an obligation to hold an article 2 investigation if, and only if, there are grounds for suspecting a breach by the State of a substantive article 2 obligation. ii) I question the extent of the distinction between a Jamieson inquest and a Middleton inquest. iii) There is a major difficulty in identifying the substantive obligations that article 2 imposes on a State in relation to the safety of its armed forces. iv) I question the extent to which an inquest, even a Middleton inquest, will necessarily be an appropriate process for discharging the procedural obligation.
+The duty to investigate death
+The duty to hold an article 2 investigation arises where there are grounds for suspecting that a death may involve breach by the State of one of the substantive obligations imposed by article 2.
+This raises the question of how the State is to identify that there are grounds for such suspicion.
+Any effective scheme for protecting the right to life must surely require a staged system of investigation of deaths, under which the first stage takes place automatically in relation to every death, whether or not there are grounds for suspecting that there is anything untoward about the death.
+Where the first stage shows that the death has not, or may not have, resulted from natural causes, there will be a requirement for a further stage or stages of the investigation.
+The requirement for an article 2 investigation will only arise if the preceding stage of the investigation discloses that there is a possibility that the State has not complied with a substantive article 2 obligation.
+In the United Kingdom such a staged system of investigating deaths exists.
+All deaths are required to be registered under the Births and Deaths Registration Act 1953.
+Registration requires a death certificate certifying the cause of death from a doctor or coroner.
+Where there is doubt as to whether the death is due to natural causes, it will be reported to a coroner.
+He then decides whether further enquiries need to be carried out.
+These may take the form of a post mortem examination or an inquest.
+Section 8 of the Coroners Act 1988 requires a coroner to hold an inquest where the body of a person is lying within his district and there is reasonable cause to suspect that the deceased has died a violent or an unnatural death, has died a sudden death of which the cause is unknown or has died in prison or in such place or in such circumstances as to require an inquest under any other Act.
+The inquest was designed to perform a fact finding role.
+It was not intended necessarily to be the final stage of the investigation.
+Its mandate expressly excludes determining civil or criminal liability.
+It is, however, being used as the appropriate process for determining whether there has been a violation of the States article 2 obligations.
+Jamieson and Middleton Inquests
+Jamieson involved an application for judicial review brought by the brother of a man who had hanged himself in his prison cell.
+The report of the case suggests that the evidence adduced at the inquest of the prisoner covered in detail the circumstances that led up to his suicide.
+It was the applicants case that the prison authorities were aware of the danger that his brother would commit suicide and failed to take the steps that they should have done to prevent this.
+He submitted to the coroner that he should direct the jury to consider whether the death of his brother was caused or contributed to by lack of care.
+The coroner refused to do so and it was this decision that was challenged by judicial review.
+The issue thus related, not to the scope of the investigation that had taken place, but as to the verdict that the jury were permitted to give.
+Sir Thomas Bingham MR, giving the judgment of the Court of Appeal, traced the statutory history of the coroners role and drew particular attention to the following statutory provisions, which are still in force.
+Under section 8(1) of the Coroners Act 1988 a coroner has to hold a inquest when a body is lying within his district and there is reason to think that the deceased has died a violent or unnatural death, or has died a sudden death of which the cause is unknown, or has died in prison or in such circumstances as to require an inquest under any other Act.
+Section 11(5)(b)(i) and (ii) requires the coroners jury to set out in an inquisition who the deceased was and how, when and where he came by his death.
+The Coroners Rules 1984 provide: 36(1) The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters, namely(a) who the deceased was; (b) how, when and where the deceased came by his death; (c) the particulars for the time being required by the Registration Acts to be registered concerning the death. (2) Neither the coroner nor the jury shall express any opinion on any other matters. 40.
+No person shall be allowed to address the coroner or the jury as to the facts. 41.
+Where the coroner sits with a jury, he shall sum up the evidence to the jury and direct them as to the law before they consider their verdict and shall draw their attention to rules 36(2) and 42. 42.
+No verdict shall be framed in such a way as to appear to determine any question of(a) criminal liability on the part of a named person, or (b) civil liability. 43.
+A coroner who believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held may announce at the inquest that he is reporting the matter in writing to the person or authority who may have power to take such action and he may report the matter accordingly.
+In upholding the coroners ruling, the Court of Appeal set out a number of
+general principles, which included the following: (1) An inquest is a fact finding inquiry conducted by a coroner, with or without a jury, to establish reliable answers to four important but limited factual questions.
+The first of these relates to the identity of the deceased, the second to the place of his death, the third to the time of death.
+In most cases these questions are not hard to answer but in a minority of cases the answer may be problematical.
+The fourth question, and that to which evidence and inquiry are most often and most closely directed, relates to how the deceased came by his death.
+Rule 36 requires that the proceedings and evidence shall be directed solely to ascertaining these matters and forbids any expression of opinion on any other matter. (2) Both in section 11(5)(b)(ii) of the Act of 1988 and in rule 36(1)(b) of the Rules of 1984, how is to be understood as meaning by what means.
+It is noteworthy that the task is not to ascertain how the deceased died, which might raise general and far reaching issues, but howthe deceased came by his death, a more limited question directed to the means by which the deceased came by his death. (3) It is not the function of a coroner or his jury to determine, or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame.
+Middleton also involved an inquest on a prisoner who had hanged himself in his cell.
+Similar allegations of neglect were made and once again the evidence covered the circumstances leading up to the deceaseds suicide.
+The jury handed the coroner a note stating that the Prison Service had failed in its duty of care to the deceased, but the coroner concluded that this could not be appended to the inquisition.
+The verdict was challenged on the ground (not open in Jamieson) that it did not comply with the procedural obligations of article 2.
+Lord Bingham, delivering the considered decision of the Committee, held that where article 2 was engaged it might be necessary, in accordance with section 3 of the Human Rights Act, to give the relevant statutory provisions a different meaning to that which the Court of Appeal had laid down in Jamieson.
+The change was not a big one: 35.
+Only one change is in our opinion needed: to interpret how in section 11(5)(b)(ii) of the Act and rule 36 (1)(b) of the Rules in the broader sense previously rejected, namely as meaning not simply by what means but by what means and in what circumstances. 36.
+This will not require a change of approach in some cases, where a traditional short form verdict will be quite satisfactory, but it will call for a change of approach in others (paras 30 31 above).
+In the latter class of case it must be for the coroner, in the exercise of his discretion, to decide how best, in the particular case, to elicit the jury's conclusion on the central issue or issues.
+The decision in Middleton has been given statutory effect by section 5 (2) of the Coroners and Justice Act 2009.
+That section provides: 5 Matters to be ascertained (1) The purpose of an investigation under this Part into a persons death is to ascertain (a) who the deceased was; (b) how, when and where the deceased came by his or her death; (c) the particulars (if any) required by the 1953 Act to be registered concerning the death. (2) Where necessary in order to avoid a breach of any Convention rights (within the meaning of the Human Rights Act 1998 (c 42)), the purpose mentioned in subsection (1)(b) is to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death. (3) Neither the senior coroner conducting an investigation under this Part into a persons death nor the jury (if there is one) may express any opinion on any matter other than (a) the questions mentioned in subsection (1)(a) and (b) (read with subsection (2) where applicable); (b) the particulars mentioned in subsection (1)(c).
+This is subject to paragraph 7 of Schedule 5.
+It seems to me that the only difference that the decision of the House in Middleton would have made to either the Jamieson inquest or the Middleton inquest would have been to the form of the verdict.
+In each case the Coroner appears to have permitted exploration of the relevant circumstances despite the fact that he did not permit these to be reflected in the verdict.
+I question whether there is, in truth, any difference in practice between a Jamieson and a Middleton inquest, other than the verdict.
+If there is, counsel were not in a position to explain it.
+Coroners appear frequently to have exercised considerable latitude as to the scope of the inquiry the inquest into the shootings in Gibraltar that were the subject of McCann v United Kingdom (1995) 21 EHRR 97 exemplifies this.
+The form of the verdict will, no doubt be dictated by the evidence that emerges at the inquest, but I have difficulty with the concept that the inquest itself may in midstream undergo a significant change in character from a Jamieson to a Middleton inquest.
+How far it is appropriate to widen the scope of an inquest in order to consider allegations of breach of obligations imposed by article 2 is a matter to which I shall revert.
+The substantive obligations of article 2 in relation to armed forces.
+If armed forces on active service abroad are within a States jurisdiction for purposes of article 1, the question arises of the scope of the substantive obligations imposed by article 2.
+Would the Strasbourg Court hold that they extend to the adequacy of the equipment with which the forces are provided; to the planning and execution of military manoeuvres? These questions are not easy to address, but an affirmative answer certainly cannot be excluded.
+McCann involved the shooting by an SAS unit of three members of the provisional IRA who were suspected of being about to detonate a bomb in Gibraltar.
+The Court held that article 2 imposed substantive duties in relation to the planning, execution and control of the operation, and a procedural obligation to investigate these matters in the light of the casualties.
+The Court adopted a similar approach to deaths that resulted from the operations of the Russian military when conducting substantial military operations against insurgents: Isayeva, Yusupova and Basayeva v Russia (Application Nos 57947 49/00) and Isayeva v Russia (Application No 57950/00), decisions of 24 February 2005.
+There would seem no reason why the Court might not adopt a similar approach to operations resulting in the death of a States own soldiers.
+The facts of this case do not require the Court to define the extent of the positive duty that article 2 imposes on a State in relation to its armed forces.
+How appropriate is an inquest for the discharge of article 2 procedural obligations?
+As I have pointed out, inquests were designed to perform a fact finding function as a stage in an overall scheme of investigation that would commence before the inquest and might continue after it.
+An inquest will not be the appropriate vehicle for all inquiries into State responsibility for loss of life.
+An inquest would not have been the appropriate means of determining whether the death of a victim of new variant CJD, contracted from eating BSE infected beef, involved government responsibility, nor for determining the issues of State responsibility for the Bloody Sunday killings.
+An inquest can properly conclude that a soldier died because a flack jacket was pierced by a snipers bullet.
+It does not seem to me, however, that it would be a satisfactory tribunal for investigating whether more effective flack jackets could and should have been supplied by the Ministry of Defence.
+If the article 2 obligation extends to considering the competence with which military manoeuvres have been executed, a coroners inquest cannot be the appropriate medium for the inquiry.
+Must an article 2 investigation be held whenever a member of the armed services dies on active service?
+Miss Rose argued that the State was under a positive obligation to take all reasonable steps to protect the lives of military recruits, who were subject to the authority and control of the State.
+It followed that any death of a serviceman on active service potentially engaged the responsibility of the State.
+All the evidence was likely to be under the control of the State.
+Where a soldier died on active service, whether he was a conscript, a regular or a reservist this triggered the obligation to hold an independent investigation.
+This was certainly the case where the circumstances of a soldiers death indicated the possibility of a systemic or operational failing by military personnel.
+The Court of Appeal considered a number of cases of deaths in the custody of the State, of one kind or another, where the article 2 procedural duty had been held to arise.
+It held at para 90: The question in the instant appeal is whether what may be called the custody principles apply to a case like this where the deceased lost his life while serving as a soldier in the Territorial Army.
+The Court went on to give an affirmative answer to this question, at least in the circumstances of a death from causes such as those that resulted in Private Smiths death.
+The obligation to hold an article 2 investigation is triggered by circumstances that give ground for suspicion that the State may have breached a substantive obligation imposed by article 2.
+That in its turn raises the question of the scope of the substantive obligations that a State owes in relation to its armed forces, which I have raised above.
+Whatever the scope of those obligations I do not consider that the death of a soldier on active service of itself raises a presumption that there has been a breach of those obligations.
+Troops on active service are at risk of being killed despite the exercise of due diligence by those responsible for doing their best to protect them.
+Death of a serviceman from illness no more raises an inference of breach of duty on the part of the State than the death of a civilian in hospital.
+For these reasons I reject the submission that the death of a serviceman on active service, assuming that this occurs within the article 1 jurisdiction of a State, automatically gives rise to an obligation to hold an article 2 investigation.
+Inquiries into the deaths of servicemen.
+I have already referred to the fact that, whatever the requirements of the Convention may be, the United Kingdom has a staged system of investigation into deaths.
+Where a death occurs in circumstances involving a public authority, an in house investigation will often precede the inquest and provide valuable information to assist the inquest.
+In the present case the Special Investigations Branch of the Military Police carried out an investigation into Private Smiths death and two Boards of Inquiry made reports.
+It was because the first of these was not disclosed to the coroner that a second inquest is to be held.
+I would expect that in the case of every military death in service some form of internal investigation is held.
+As the bodies of servicemen who die or are killed on active service abroad are brought back to this country, any internal investigation that has taken place will be followed by a public inquest that will satisfy many of the requirements of an article 2 investigation.
+It will often be only in the course of the inquest that it will become apparent that there is an issue as to whether there has been a breach by the State of its positive article 2 obligations.
+Only at that stage will it be appreciated that the exercise that is in progress is one called for by article 2 and one that must, if possible, satisfy the requirements of that article.
+Whether the inquest will be the appropriate medium to do this will depend on the nature of the obligation that is alleged to have been broken.
+The decision in Middleton, and section 5(2) of the 2009 Act that gives effect to it, requires the coroner to adapt the verdict, insofar as this is possible, in order to satisfy the requirements of article 2.
+Must the second inquest satisfy the procedural requirements of article 2?
+The Coroner ruled at the end of the first inquest that it was not necessary to satisfy the procedural requirements of article 2.
+Collins J and the Court of Appeal have held that the Coroner was mistaken.
+I agree.
+This is not, however, because Private Smiths death on active service, of itself, gave rise to a suspicion of breach by the State of its substantive article 2 obligations.
+It is because the evidence that was placed before the Coroner has raised the possibility that there was a failure in the system that should have been in place to protect soldiers from the risk posed by the extreme temperatures in which they had to serve.
+On the facts disclosed it was arguable that there was a breach of the States substantive obligations under article 2.
+This was enough to trigger the need to give a verdict that complied with the requirements of article 2.
+I am not convinced that the Coroners narrative verdict failed to do this.
+It summarised the facts leading to Private Smiths death and ended: Jason George Smiths death was caused by a serious failure to recognise and take appropriate steps to address the difficulty that he had in adjusting to the climate.
+The new inquest is likely to receive more detailed evidence of the circumstances surrounding Private Smiths death.
+In conducting that inquest the Coroner should certainly attempt to satisfy the requirements of an article 2 investigation.
+For these reasons I would dismiss the appeal on the second issue.
+LORD HOPE
+I agree with Lord Phillips that a member of the States armed forces is not, by reason of his or her personal status according to the military law and discipline of the United Kingdom, within the jurisdiction of the state for the purposes of article 1 of the European Convention on Human Rights.
+To hold otherwise would be to go beyond the categories that have hitherto been recognised by the Strasbourg Court in cases that do not arise from the effective control of territory within the Council of Europe area.
+But, as to the reasons for this view, I am in full and respectful agreement too with the judgment of Lord Collins.
+It is perhaps worth noting, in support of his conclusion that there are no policy grounds for extending the scope of the Convention to members of the armed services serving abroad simply because they are under the authority and control of the United Kingdom, that in an interview which he gave shortly after his retirement as President of the European Court of Human Rights, Luzius Wildhaber questioned how the Court could function effectively as a court when there was no prospect of it acquiring reliable evidence concerning the situation beyond the frontiers of Member States.
+He suggested that expecting the Court to act in such circumstances risked turning it into a campaigning organisation making allegations without solid evidence.
+He saw this as a compelling reason to be very careful about extending the notion of extra territoriality too far and to be wary about departing too much from the Bankovic judgment: Reflections of a Former President of the European Court of Human Rights [2010] EHRLR 169, 174.
+It is one thing, therefore, to recognise a Member States jurisdiction over persons within an area beyond the frontiers of the Member States over which their armed forces have established total and exclusive de facto control such as a military base, a military hospital or a detention centre, on the analogy with the extra territorial exception made for embassies: Al Saadoon and Mufdhi v United Kingdom (Application No 61498/08) (unreported) 30 June 2009, para 88.
+It is quite another to extend that jurisdiction to areas outside premises of that kind over which the armed forces may be operating but over which they do not have exclusive control, where the safeguarding of Convention rights cannot be guaranteed and where reliable evidence about the circumstances of alleged violations could be hard to come by because the state over whose territory these operations are being conducted is not a party to the Convention.
+A decision that the extra territorial jurisdiction should extend that far in this case would be likely to have profound consequences for other Member States and, it would seem from what Luzius Wildhaber has said, for the Court itself.
+A decision of that kind is best left to Strasbourg.
+I would in any event respectfully endorse the view expressed by Lord Brown of Eaton under Heywood in R (Al Skeini) v Secretary of State for Defence [2008] AC 153, para 107, for the further reasons he gives in this case, that article 1 should not be construed as reaching any further than the existing Strasbourg jurisprudence clearly shows it to reach.
+I also would hold that Private Smith was not within the jurisdiction of the United Kingdom within the meaning of article 1 when he was outside his base while serving in Iraq.
+There is nothing that I would wish to add on the first issue.
+The second issue in this appeal is whether the fresh inquest into Private Smiths death would have to comply with the procedural investigatory obligation guaranteed by article 2 of the Convention.
+At first sight this question is academic because the Secretary of State agrees that he will not submit to the new coroner in the fresh inquest that the scope of the investigation, or the nature of the verdict, should be less broad than would be appropriate if the inquest must satisfy the obligation of the United Kingdom under that article: see the Court of Appeals judgment [2009] 3 WLR 1099, para 62.
+This is on the assumption that, as Private Smith died on base, he was within the jurisdiction of the United Kingdom within the meaning of article 1 when he died and because the findings of the coroner at the first inquest indicate a possible breach of the positive obligation to establish processes to deal with the risk of heatstroke and hyperthermia.
+But, as Ms Rose QC for the respondent pointed out, a concession as to the scope of the inquest would not bind the coroner.
+The question whether the procedural obligation was triggered by Private Smiths death was argued before Collins J, in the Court of Appeal and before this Court on the basis that it raised an important issue of principle.
+Its importance is not limited to cases where members of the armed forces are serving in places such as Iraq and Afghanistan.
+It extends to cases where at the time of their death they were serving in the United Kingdom in Northern Ireland, for example or within the territory of another Council of Europe Member State.
+In the ideal world this would be an empty question.
+The coroner would have complete freedom to determine the scope of his own inquiry and to adapt the form and content of his verdict according to the needs of each case.
+That however is not how the scheme for the conduct of inquests has been designed in English law.
+As Lord Bingham of Cornhill explained in R (Middleton) v West Somerset Coroner [2004] 2 AC 182, paras 34 35, the scheme which has been enacted by and under the authority of Parliament must be respected, save to the extent that a change of interpretation is required to honour the international obligations of the United Kingdom under the Convention: see also R (Sacker) v West Yorkshire Coroner [2004] 1 WLR 796, para 27.
+The crucial difference is to be found in the way the word how in section 11(5)(b)(ii) of the Coroners Act 1988 and rule 36(1)(b) of the Coroners Rules 1984 is to be interpreted.
+Tempting though it may be to depart from Middleton by declaring that there is really no material difference between the functions of the coroner and the jury in the two types of inquest as Lord Phillips has indicated, I think for all the reasons that were given in that case we should not do so.
+The temptation to do this, adopting what the sheriff may do when he is making his determination according to the Scottish model, was confronted and resisted in Middleton, and I think that we must follow the decision that was taken in that case.
+On the other hand I would not wish to limit the scope that is available to the coroner under rule 43 of the Coroners Rules 1984.
+How far he may go in pursuing lines of inquiry in order to determine whether he should make a report under that rule with a view to preventing the recurrence of similar fatalities must depend on his judgment as to what is appropriate in the circumstances.
+It is only in cases where the article 2 procedural duty applies, therefore, that the Middleton approach is available to the coroner.
+It will then be necessary for him to conduct an inquiry which is effective, as that expression was explained by the Grand Chamber in Ramsahai v The Netherlands (2007) 46 EHRR 983, paras 324 325; see also R (L (A Patient)) v Secretary of State for Justice (Equality and Human Rights Commission intervening) [2009] AC 588, para 78, per Lord Rodger of Earlsferry.
+But that approach is not available in all cases.
+It arises only in the comparatively few cases where the states responsibility for the death is or may be engaged: R (Hurst) v London Northern District Coroner [2007] 2 AC 189, para 48 Lord Brown of Eaton under Heywood.
+In all other cases the proceedings must be conducted according to the regime for conducting inquests in England and Wales as summarised in R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1.
+Section 5 of the Coroners and Justice Act 2009 has retained the distinction between these two forms of inquest.
+It is only where necessary to avoid a breach of any of the Convention rights that it permits the Middleton approach: see section 5(2).
+The scheme which Parliament has enacted in section 5 of the 2009 Act is deceptively simple.
+In practice however it gives rise to a variety of problems to which the Courts attention was drawn by counsel.
+We cannot resolve them all in this case.
+But at the root of most, if not all, of them lies the problem of determining whether the case in hand is one which attracts the procedural obligation that is imposed by article 2.
+In broad terms, it is triggered by any death occurring in circumstances in which it appears that any one or more of the substantive obligations that article 2 imposes not to take life without justification, and to establish a framework of laws, precautions, procedures and means of enforcement which will to the greatest extent practicable protect life, has been, or may have been, violated in circumstances in which it appears that agents of the state are, or may be, in some way implicated: R (Middleton) v West Somerset Coroner [2004] 2 AC 182, paras 2 and 3.
+The procedural obligation depends on the existence of the substantive right.
+It cannot exist independently: R (Gentle) v Prime Minister [2008] AC 1356, para 6.
+Some situations in which the procedural obligation is triggered are now well recognised.
+The suicide of an individual while in the custody of the state is the prime example.
+It has been extended to the case where a prisoner attempted to commit suicide while in custody and suffered brain damage: R (L (A Patient)) v Secretary of State for Justice (Equality and Human Rights Commission intervening) [2009] AC 588.
+This is because it has been recognised that prisoners as a class present a particular risk of suicide and because those who have custody of them, as agents of the state, are or may be in some way implicated.
+A Middleton inquest is required in all these cases, because it is at least possible that the prison authorities failed to take the steps to protect the prisoners life that the substantive right requires.
+As Lord Rodger of Earlsferry said in Ls case, para 59, suicide is in this respect like any other violent death in custody.
+The procedural obligation extends to prisoners as a class irrespective of the particular circumstances in which the death occurred.
+The fact that they are under the care and control of the authorities by whom they are held gives rise to an automatic obligation to investigate the circumstances.
+The same is true of suicides committed by others subject to compulsory detention by a public authority, such as patients suffering from mental illness who have been detained under the Mental Health Acts: Savage v South Essex Partnership NHS Foundation Trust (MIND intervening) [2009] AC 681.
+This approach has the merit of clarity.
+Everyone knows from the outset that the inquest in these cases must follow the guidance that was given in Middleton, paras 36 38.
+The issue before the Court is whether it is possible to achieve equal clarity in the case of an inquest into the death of a soldier.
+Soldiers who die while in military custody are, of course, in the same position as any other prisoner.
+Their case has the benefit of the substantive obligation, so the procedural obligation applies.
+So too does the case of members of the other armed services who die in such circumstances.
+The question is how far, if at all, the detainees approach can be applied to other situations which servicemen and servicewomen encounter in the service of their country, at home or abroad.
+Death may occur from natural causes as well as a result of neglect or injury.
+And fatal injuries may occur due to the mishandling of equipment during training or in other situations when personnel are not engaged in combat as well as in the face of the enemy.
+The conflicts in Iraq and Afghanistan have brought the issue into greater prominence.
+But the situation that we face today is in principle no different from that which members of the armed forces serving both at home and abroad have faced for many years.
+The single characteristic which currently unites all our service personnel is that they have volunteered for the branch of the service to which they belong.
+This applies to those who have made their profession in the armed services as well as those, like Private Smith, who chose to serve part time in reserve forces such as the Territorial Army.
+Mandatory military service no longer exists in this country.
+For this reason I would be reluctant to follow the guidance of the Strasbourg Court that is to be found in cases such as Chember v Russia, (Application No 7188/03) (unreported) 3 July 2008.
+The applicant in that case was called up for two years mandatory military service in the course of which he was subjected to ill treatment and harassment.
+The court was careful to stress in para 49 that many acts that would constitute degrading or inhuman treatment in respect of prisoners may not reach the threshold of ill treatment when they occur in the armed forces, provided they contribute to the specific mission of the armed forces in which they form part, for example training for battle field conditions: Engel v The Netherlands (No 1) (1976) 1 EHRR 647.
+But the description which it gave in para 50 of the duty that the State owes to persons performing military service was directed specifically to cases where it decides to call up ordinary citizens to perform military service.
+That description cannot be applied to those who serve in the armed forces as volunteers.
+It is true, of course, that those who join the armed services as volunteers accept the obligation to comply with military discipline.
+They are trained to obey orders, and they are subject to sanctions if they do not do so.
+Private Smith did not choose to go to Iraq.
+He received a notice of compulsory call up.
+But it was a condition of the service for which he volunteered that he would obey instructions of this kind.
+I do not think that his situation can be distinguished from that of any other member of the armed services who is deployed on active service.
+There is a close analogy with men and women who volunteer for service in the emergency services.
+Fire fighters, in particular, may face situations of great danger where their lives are at risk.
+But they follow instructions because that is a necessary part of the job they have chosen to do.
+It is tempting to select examples of cases where the cause of a soldiers death may be attributed to failures on the part of the State and to conclude that this fact in itself gives rise to the need for a Middleton inquest.
+But I would resist this temptation.
+The examples that Lord Rodger gives illustrate the difficulty.
+He says that he would apply the reasoning as to a prisoner committing suicide to a raw recruit to the armed forces who committed suicide during initial military training in barracks in this country: para 118.
+We have no evidence that raw recruits to the armed services are in this respect especially vulnerable, but this reference calls to mind the tragic cases of the four young soldiers who died at Deep Cut Barracks between 1995 and 2002 which according to the Ministry of Defence were all cases of suicide.
+Those soldiers were still in training, but they were not raw recruits.
+The training they were undergoing at Deep Cut was a course of further training, additional to the initial training which they had received in an Army Training Regiment.
+Where does one draw the line between the raw recruit and the more seasoned soldier who is still in training? And what about schoolchildren who commit suicide as a result of bullying from which, as they must attend school, there is no escape? Or students who do so because of the pressures they encounter in colleges or universities? To extend the substantive article 2 obligation to volunteers while they are undergoing basic or advanced training would go further than has so far been indicated as necessary by Strasbourg.
+Then there is the example that Lord Rodger gives of deaths as a result of friendly fire from other British forces: para 126.
+Trooper David Clarke, the son of the second claimant in R (Gentle) v Prime Minister [2008] AC 1356, was killed by friendly fire while on armed service with the Queens Royal Lancers in Iraq.
+He was driving a Challenger 2 tank when it was fired on by another Challenger 2 tank from a different unit whose crew had mistaken it for an enemy vehicle.
+That was an example of friendly fire by British forces.
+But a number of other servicemen, including several soldiers serving with the Queens Own Highlanders, were killed during the same campaign when their armoured vehicle was fired on by a US Black Hawk Helicopter.
+Are cases of accidental deaths due to friendly fire by allied forces to be distinguished from those which are due to accidents caused by British forces? And why should deaths due to friendly fire be distinguished from deaths due to injuries sustained as a result of the actions of opposing forces that could also have been avoided if mistakes had not been made by the soldiers themselves or by their commanders? The risk of death due to friendly fire in the confusion and heat of battle is one of the risks that a soldier must face as part of the mission for which he has volunteered.
+The same is true of the risk of death while in training due, for example, to mistakes made while handling weapons or other equipment or to exposure to the elements.
+The Court of Appeal applied the principle that extends the protection of article 2 to detained mental patients to the case of soldiers such as Private Smith who die of heatstroke while on active service in Iraq: [2009] 3 WLR 1099, paras 104 105.
+The essence of its reasoning is to be found in these sentences taken from para 105: [The soldiers] are under the control of and subject to army discipline.
+They must do what the army requires them to do.
+If the army sends them out into the desert they must go.
+In this respect they are in the same position as a conscript.
+Once they have signed up for a particular period they can no more disobey an order than a conscript can.
+On this basis it saw no reason why they should not have the same protection as is afforded by article 2 to a conscript.
+I think that this reasoning goes further than the Strasbourg Court has gone in the case of conscripts, as its reference in Chember v Russia (Application No 7188/03) 3 July 2008, para 49, to risks inherent in the specific mission of the armed forces shows.
+But it seems to me to be objectionable on other grounds.
+Members of our armed services are not conscripts.
+They have chosen to accept the demands of military discipline.
+Moreover, if the fact that they must obey orders is to be treated as the criterion, there is no logical stopping place.
+Every situation where death occurs in circumstances where they were obeying orders, from the training ground to battle conditions, would have to be treated in the same way.
+I would reject the analogy with those who are in the custody of the state.
+The volunteer soldiers duty to obey orders is not comparable with the state of the detainee who is held against his will in the States custody.
+In my opinion the substantive obligation under article 2 does not extend automatically to all service personnel in a volunteer army while they are on active service at home or within the article 1 jurisdiction overseas.
+Like Lord Mance, I regard the proposition that all deaths of military personnel on active service require to be investigated by a Middleton type inquiry as going too far: para 214.
+As I said in R (Gentle) v Prime Minister [2008] AC 1356, para 19, the guarantee in the first sentence of article 2(1) is not violated simply by deploying servicemen and women on active service overseas as part of an organised military force which is properly equipped and capable of defending itself, even though the risk of their being killed is inherent in what they are being asked to do.
+But one must not overlook the fact that there have been many cases where the death of service personnel indicates a systemic or operational failing on the part of the State.
+These may range from a failure to provide them with the equipment which is needed to protect life to mistakes made in the way they were deployed due to bad planning or inadequate appreciation of the risks that had to be faced.
+These are cases where the investigator should, as article 2 requires, take all reasonable steps to secure the evidence relating to the incident, to find out, if possible, what caused the death, and to identify the defects in the system which brought it about and any other factors that may be relevant: see R (Middleton) v West Somerset Coroner [2004] 2 AC 182, para 36.
+Private Smiths death, which occurred on base, seems to me to fall into this category.
+This was a place over which the armed forces had exclusive control, so the jurisdictional requirement was satisfied.
+And all the signs are that this was a death which might have been prevented if proper precautions had been taken.
+There is a sufficient indication of a systemic breach in an area that was within its jurisdiction for the purposes of article 1 to engage the responsibility of the State to carry out an effective investigation into the circumstances.
+There is something that ought to be inquired into, if only to ensure that tragedies of this or a similar kind do not happen again.
+I would hold that this is enough to trigger the article 2 procedural obligation so as to require the coroner to conduct a Middleton inquiry in his case.
+I recognise that the case by case approach which I favour, coupled with the lack of definition in this area of the law, creates a very real problem for the parties as well as for coroners.
+It risks creating satellite litigation as decisions as to whether a case falls on one side of the boundary are opened up for challenge, resulting in delays and increased costs.
+The solution to this highly unsatisfactory situation lies in a reform of the law which restricts inquiries in England and Wales which are of that kind to cases where there are grounds for thinking that the substantive obligation under article 2 has been violated.
+It does not lie in extending the potential reach of article 2 to a broadly defined category of cases which may well deserve sympathy but which lie outside the well defined circumstances in which the positive obligation has hitherto been held to apply.
+The balance of advantage until the law is reformed lies, I would suggest, in holding the line at cases where there are grounds for thinking that there was a failure by the State in fulfilling its responsibility to protect life and not extending it to cases which, although involving the element of compulsion that is inherent in service life, are truly outside that category.
+I would allow the appeal against the Court of Appeals order on the first issue.
+I would dismiss the appeal on the second issue.
+LORD RODGER
+The present appeal arises out of the death of Private Jason Smith on 13 August 2003, while serving in Iraq.
+He died of heat stroke.
+On the day in question the effects were first noticed when Private Smith was seen lying on the floor in the Stadium at Al Amarah where his accommodation was.
+He was taken to the medical facility at Camp Abu Naji where he died shortly afterwards.
+Because he died at the Camp, which was the centre of British operations in the area, the Secretary of State concedes that he died within the jurisdiction of the United Kingdom for purposes of article 1 of the European Convention on Human Rights and Fundamental Freedoms (the Convention).
+The Secretary of State further concedes that the circumstances of his death are such as to call for an independent inquiry under article 2 of the Convention.
+Despite these concessions, the Secretary of State asks this Court to decide points relating to the United Kingdoms jurisdiction for purposes of article 1 and to the circumstances in which an inquest which complies with the requirements in R (Middleton) v West Somerset Coroner [2004] 2 AC 182 (a Middleton inquest) has to be held.
+The precise basis and extent of the Secretary of States concession on the first point are not altogether clear to me.
+So far as the second point is concerned, the parties appeared to agree that coroners and lawyers found it difficult to know whether, in a case involving the death of a soldier on active service overseas, any inquest should be a Middleton inquest, or whether it should start a Jamieson inquest (one whose more limited scope is described in R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1), but evolve into a Middleton inquest if the coroners investigation seemed to require it.
+For the reasons given by Lord Collins, to which I could not possibly add anything of value, I would allow the appeal on the first issue.
+It follows that, leaving aside the position when they are on a United Kingdom base, soldiers on active service overseas are not within the jurisdiction of the United Kingdom for purposes of article 1 of the Convention.
+It follows also that their deaths will not give rise to any requirement to carry out an article 2 investigation.
+Nevertheless, the Secretary of State asks for a decision on the point.
+As counsel for the respondent pointed out, an issue could certainly arise in relation to a soldier who had been killed in combat in this country Northern Ireland providing recent examples.
+Unfortunately, counsels submissions left me, at least, unclear about how exactly a decision one way or the other, as to the form of the inquest, would affect such practical matters as how the coroner or parties prepared for the inquest or what would happen if the coroner decided, half way through, that it should become a Middleton inquest.
+There is, therefore, a limit to the guidance that this Court can usefully give in a case where the point is moot and in which we have not been told of any particular practical problems that have arisen.
+Ms Rose QC and Mr Beloff QC submitted, however, that the Court should lay down and it would have to be a matter of law that all inquests into the death of a soldier on active service should be Middleton inquests.
+Then everyone would know where they stood and such matters as legal aid, representation of relatives and the form of any eventual verdict would be clear from the outset.
+The submission is superficially attractive and, doubtless for that reason, a somewhat similar argument has been tried before.
+In R (Hurst) v London Northern District Coroner [2007] 2 AC 189, 214, Lord Brown of Eaton under Heywood dealt with it in this way: Middleton clearly accepted that Jamieson was correctly decided.
+Were it otherwise, the House could simply have overruled it without recourse to the Human Rights Act 1998 at all, let alone section 3.
+It is plain that the House was not intending the Middleton approach thereafter to apply in all cases.
+In the first place, an article 2 investigative obligation only arises in the comparatively few cases where the states responsibility is or may be engaged.
+Secondly, even where the obligation does arise, it will often be satisfied without resort to a Middleton inquestin some cases by criminal proceedings, in particular where a defendant pleads not guilty and the trial involves a full exploration of the facts surrounding the death (para 30 of the committees opinion delivered by Lord Bingham of Cornhill); in others, like McCann, where short verdicts in the traditional form will enable the jury to express their conclusion on the central issue canvassed at the inquest at para 31 of the opinion.
+All this is clear from the committee's opinion which in terms recognises at para 36 that only sometimes will a change of approach be called for.
+The key point is that the decision in Middleton involved using section 3 of the Human Rights Act 1998 to place an extended construction on section 11(5)(b)(ii) of the Coroners Act 1988 and rule 36 of the Coroners Rules 1984 (SI 1984/552).
+This was justified only because the extended construction was necessary in order to meet the requirements of article 2.
+So counsels submission really implied that, as a class, the deaths of British soldiers on active service in, say, Iraq or Afghanistan, would trigger the article 2 investigative obligation.
+I would reject that approach.
+In R (L(A Patient)) v Secretary of State for Justice [2009] AC 588 a young man had tried to hang himself in Feltham Young Offender Institution.
+The Secretary of State argued that, since the obligation on the prison authorities to protect a prisoner from himself is not absolute and so only arises in particular circumstances, a suicide can occur without there having been any breach of the authorities article 2 obligation to protect him.
+So there did not need to be an independent investigation unless there was some positive reason to believe that the authorities had indeed been in breach of their obligation to protect the prisoner.
+I rejected that argument in these words, at p 619: 59.
+That argument is mistaken.
+Whenever a prisoner kills himself, it is at least possible that the prison authorities, who are responsible for the prisoner, have failed, either in their obligation to take general measures to diminish the opportunities for prisoners to harm themselves, or in their operational obligation to try to prevent the particular prisoner from committing suicide.
+Given the closed nature of the prison world, without an independent investigation you might never know.
+So there must be an investigation of that kind to find out whether something did indeed go wrong.
+In this respect a suicide is like any other violent death in custody.
+In affirming the need for an effective form of investigation in a case involving the suicide of a man in police custody, the European court held that such an investigation should be held when a resort to force has resulted in a persons death: Akdogdu v Turkey, para 52. 60.
+In R (Middleton) v West Somerset Coroner [2004] 2 AC 182, another case of a suicide in custody, at p 191, para 3, Lord Bingham of Cornhill summarised the jurisprudence of the European court as imposing an obligation to hold an independent investigation if it appears that one or other of the substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way, implicated.
+Mr Giffin suggested that Lord Binghams formulation was inconsistent with there being a requirement for an independent investigation in all cases of suicide in custody.
+I do not agree.
+In summarising the case law, Lord Bingham was recognising that, where the circumstances of a prisoners death in custody indicate that the substantive obligations of the state may have been violated, any violation, whether due to a systemic or operational failure, will necessarily have involved members of the prison service in one capacity or another.
+An independent investigation is therefore required to see whether there was, in fact, a violation.
+The starting point for the reasoning in this passage is that the prison authorities are under both an obligation to take general measures to diminish the opportunities for prisoners to harm themselves and an operational obligation, in certain limited circumstances, to try to prevent a particular prisoner from committing suicide.
+The authorities are under these obligations because persons in custody are in a vulnerable position and the authorities are under a duty to protect them: Edwards v United Kingdom (2002) 35 EHRR 487, 507, para 56.
+Therefore the mere fact that a prisoner has committed suicide indicates that there may have been a failure on the part of the prison authorities to perform their article 2 obligations to prevent those in custody from doing so.
+I would apply precisely the same reasoning if, say, a raw recruit to the armed forces committed suicide during initial military training.
+It is obvious and past experience shows that recruits, who are usually very young and away from their families and friends for the first time, may be unable to cope with the stresses of military discipline and training.
+In these circumstances I would regard such recruits as vulnerable individuals for whom the military authorities have undertaken responsibility.
+So the authorities must have staff trained, and structures in place, to deal with the potential problems which may, quite predictably, arise.
+Therefore, if a suicide occurred in such circumstances, this would suggest that there might have been a failure on the part of the authorities to discharge their obligation to protect the recruits.
+There would need to be an independent inquiry especially since recruits are trained in a closed environment.
+I would take much the same view of Private Smiths death in this case.
+It may well be that, in the circumstances in Iraq at the time, a soldier could die of heatstroke without there having been any violation of the Armys obligations under article 2.
+Nevertheless, the likelihood of extreme heat and its possible effects on soldiers were known to the military authorities.
+There was an obvious need to take appropriate precautions.
+So, where, as here, a soldier suffers so badly from heatstroke, while in his living accommodation, that he dies shortly afterwards, it is at least possible that the Army authorities failed in some aspect of their article 2 obligation to protect him.
+For that reason I am satisfied that, given his concession on jurisdiction, the Secretary of State was correct to concede the need for a Middleton inquest into Private Smiths death.
+I would, however, take an entirely different view of the death of a trained soldier in action e g, when a roadside bomb blows up the vehicle in which he is patrolling, or when his observation post is destroyed by a mortar bomb.
+The fact that the soldier was killed in these circumstances raises no prima facie case for saying that the United Kingdom army authorities have failed in their obligation to protect him and that there has, in consequence, been a breach of his article 2 Convention rights.
+In the first place, even if an active service unit is, in some ways a closed world, it would be quite wrong to construct any argument around the idea that ordinary members of the forces are vulnerable in the same way as prisoners or detained patients or, even, conscripts doing military national service in Russia or Turkey.
+I have already accepted that, in the initial stages of their training, recruits to the United Kingdom forces may indeed be vulnerable in this sense.
+But those who pass through training and are accepted into the forces are often the reverse of vulnerable: their training and discipline make them far more self reliant and resilient than most members of the population and, so far from being isolated, they form part of a group whose members are supportive of one another.
+Even more importantly, any suggestion that the death of a soldier in combat conditions points to some breach by the United Kingdom of his article 2 right to life is not only to mistake, but much worse to devalue, what our soldiers do.
+It is not just that their job involves being exposed to the risk of death or injury.
+That is true of many jobs, from steeplejacks to firemen, from test pilots to divers.
+Uniquely, the job of members of the armed forces involves them being deployed in situations where, as they well know, opposing forces will actually be making a determined effort, and using all their resources, to kill or injure them.
+While steps can be taken, by training and by providing suitable armour, to give our troops some measure of protection against these hostile attacks, that protection can never be complete.
+Deaths and injuries are inevitable.
+Indeed it is precisely because, in combat, our troops are inevitably exposed to these great dangers that they deserve and enjoy the admiration of the community.
+The long established exemption from inheritance tax of the estates of those who die on active service is an acknowledgment of the fact that members of the armed forces can be called upon to risk death in this way in the defence of what the government perceives to be the national interest.
+I have deliberately referred to our soldiers and our troops because it may well be that not all Council of Europe countries look on their armed forces in the same way.
+For historical or cultural reasons, some may be reluctant to see their armed forces engage in combat or carry out dangerous peace keeping operations.
+So they may have a very different attitude to the risks to which their forces should be exposed.
+Correspondingly, members of their forces may not attract the level of public esteem that members of our forces, who are regularly expected to face very real threats of death or injury, enjoy.
+At present our troops are exposed to great dangers in Afghanistan.
+Inevitably, many have been killed and many more have been wounded.
+To suggest that these deaths and injuries can always, or even usually, be seen as the result of some failure to protect the soldiers, whether by their immediate companions or by more senior officers or generals or ministers, is to depreciate the bravery of the men and women who face these dangers.
+They are brave precisely because they do the job, knowing full well that, however much is done to protect them, they are going to be up against opposing forces who are intent on killing or injuring them and who are sometimes going to succeed.
+This is the background to any inquest into the death of a soldier on active service.
+In most cases the starting point is that the soldier died as a result of a deliberate attack by opposing forces by, say, a mortar bomb, or a roadside bomb, or by sniper fire.
+Usually, at least, that will also be the end point of the coroners investigation because it will be an adequate description not only of how the soldier was killed, but also of the circumstances in which he was killed.
+Of course, it will often perhaps even usually be possible to say that the death might well not have occurred if the soldier had not been ordered to carry out the particular patrol, or if he had been in a vehicle with thicker armour plating, or if the observation post had been better protected.
+But, even if that is correct, by itself, it does not point to any failure by the relevant authorities to do their best to protect the soldiers lives.
+It would only do so if contrary to the very essence of active military service the authorities could normally be expected to ensure that our troops would not be killed or injured by opposing forces.
+On the contrary, in order to achieve a legitimate peacekeeping objective, a commander may have to order his men to carry out an operation when he knows that they are exhausted or that their equipment is not in the best condition.
+Indeed the European Convention on Human Rights owes its very existence to countless individuals who carried out operations in just such circumstances.
+For these reasons, I am satisfied that, where a serviceman or woman has been killed by opposing forces in the course of military operations, the coroner will usually have no basis for considering, at the outset, that there has been a violation of any substantive obligation under article 2.
+So a Middleton inquest will not be called for and indeed it would not be lawful, in such circumstances, to return the wider verdict which is required where a potential violation of article 2 is under consideration.
+Of course, as his investigation proceeds, the coroner may uncover new information which does point to a possible violation of article 2.
+To take an extreme example, it may emerge from the evidence that the soldier actually died as a result of friendly fire from other British forces.
+At that point, the legal position will change because there will be reason to believe that the military authorities may indeed have failed in their article 2 duty to protect the soldiers life.
+So the coroner will conduct the inquest in the manner required to fulfil the United Kingdoms investigatory obligation under article 2.
+But the coroner is not concerned with broad political decisions which may seem to have a bearing, and may indeed actually have a bearing, on what happened.
+This is clear from Nachova v Bulgaria (2005) 42 EHRR 933, 957, para 110, where the Grand Chamber described the essential purpose of an article 2 investigation as being to secure the effective implementation of the domestic laws safeguarding the right to life and, in those cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility.
+Once it is established, say, that a soldier died because the blast from a roadside bomb penetrated the armour plating on his vehicle, it may well be inferred that he would not have died if the plating had been stronger.
+And that simple fact may be worth pointing out as a possible guide for the future.
+But questions, say, as to whether it would have been feasible to fit stronger protection, or as to why the particular vehicles were used in the operation or campaign, or as to why those vehicles, as opposed to vehicles with stronger protection, were originally purchased by the Ministry of Defence, or as to whether it would have been better to have more helicopters available etc, all raise issues which are essentially political rather than legal.
+That being so, a curious aspect of counsels submissions before this Court was the complete absence of any reference to Parliament as the forum in which such matters should be raised and debated and in which ministers should be held responsible.
+Of course, in consequence of pressure brought to bear by Parliament, the government might set up an independent inquiry with wide terms of reference to look into all aspects of a situation, including the political aspects.
+But we are concerned with the scope of a coroners inquest whose function is different.
+Many of the issues about the deaths of soldiers which are, understandably, of the greatest concern to their relatives are indeed of this much broader nature.
+In short, they raise questions of policy, not of legality, and so would fall outside the scope of any article 2 investigation which a coroner might be obliged to carry out.
+For these reasons I agree that the contentions advanced by Ms Rose and Mr Beloff should be rejected.
+LORD WALKER
+In common with other members of this Court I feel some disquiet about our engaging in protracted deliberation and the preparation of lengthy judgments on two issues which (as all parties agree) do not actually affect what is to happen in consequence of the tragic death of Pte Smith.
+It is not the function of this Court to deliver advisory opinions, and in this case we may be going some way beyond what would be regarded as a proper exercise of judicial power in a country with a written constitution providing for the separation of powers (for instance the position in Australia is very fully discussed in a paper A Human Rights Act, the Courts and the Constitution presented to the Australian Human Rights Commission by the Hon Michael McHugh AC on 5 March 2009).
+The fact that every death of a soldier in Afghanistan brings tragedy to his or her family, and sorrow to the whole nation, may not be a sufficient reason for stretching our jurisdiction to the limits.
+That is underlined by the second issue, as to coroners inquests, which has led to the submission of further detailed evidence which, informative as it is, has no possible bearing on the second inquest which is to be held on the death of Pte Smith.
+On the two issues argued before the Court I respectfully agree with Lord Collins on the first issue, and with Lord Phillips and Lord Rodger on the second issue.
+I would particularly associate myself with paras 118 127 of Lord Rodgers judgment.
+LADY HALE
+Mrs Smith must wonder why she is in this court.
+She did not ask to be here.
+All she wants is a proper inquiry, in which she can play a proper part, into how it was that her son Jason came to die of heatstroke while serving with the British army in Iraq.
+She wants to understand what happened to him, but she also wants others to understand it too, so that anything which reasonably can be done will be done to prevent other families suffering as hers has suffered.
+She had to begin these proceedings because of shortcomings in the first inquest, which are now conceded both by the Coroner and by the Ministry of Defence.
+The Ministry failed to produce the principal board of inquiry report into Private Smiths death, insisted upon wholesale redaction of the documents which were disclosed, and the coroner wrongly held that he had no power to order disclosure if the Ministry would not agree.
+As the judge commented, it has seemed to the family that the Army was concerned to cover up any shortcomings and to protect its reputation.
+That may not be a correct conclusion, but it is not surprising that it has been reached (para 5).
+But all that is now behind her.
+A new inquest is to be held and those points are conceded.
+More than that, Mrs Smith wished to establish that her son had died within the jurisdiction of the United Kingdom, so that he and she were covered by the guarantees in article 2 of the European Convention on Human Rights.
+This imposes upon the state a duty, not only to avoid taking life, but also to take positive steps to protect the right to life in a variety of ways.
+One of these is to hold a proper inquiry, in which the family of the deceased may play a proper part, if it appears that the state may have failed in its responsibility to protect life.
+But both of these points have also been conceded.
+The Ministry of Defence accept that Private Smith was within the jurisdiction of the United Kingdom when he died.
+They will also not object to an inquest which examines, not only the precise cause of his death, but also the circumstances in which it took place.
+This is as far as they or anyone else can go, because it will be for the coroner to decide, on the basis of that inquiry, what sort of verdict should be delivered.
+But if the evidence were to warrant it, the verdict could clearly be one which identified any breach that there may have been of the United Kingdoms obligations under article 2.
+That is all that is needed to decide this case.
+The Ministry of Defence have appealed to this court because both the trial judge and the Court of Appeal accepted the invitation of both parties to decide more than they needed to decide.
+Of course they meant to be helpful.
+But because the Ministry of Defence did not like what they said, Mrs Smith has had to wait for more than two years for the case to be over so that the fresh inquest can be arranged.
+Perhaps worse, it is not at all clear what this court is doing.
+The trial judge ordered that the first inquisition and verdict be quashed and a new inquest held that complies with the procedural obligations implicit in Article 2 of the European Convention on Human Rights, as set out in the Courts judgment. (He also dismissed a competing claim by the Ministry of Defence but there was no appeal against that.) The Court of Appeal dismissed the Ministrys appeal.
+So the judges order stands.
+As I understand it, the most we might be asked to do is to delete the words as set out in the Courts judgment.
+He made no declarations as to the rights of the parties so we are not asked to change those.
+So we are merely making observations on two extremely important and interesting questions but we are not deciding anything.
+In those circumstances I doubt whether any of the important and interesting things which are said about those questions in this court can be part of the essential grounds for our decision and thus binding upon other courts in future.
+In the words of Sir Frederick Pollock, cited by Lord Denning in Close v Steel Company of Wales Ltd [1962] AC 367, at 388 389: Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons given, but only to the principles accepted and applied as necessary grounds of the decision.
+Lest it be thought that Lord Denning took an unusual view of the circumstances in which he was bound by previous authority, he also referred to Lord Selborne LC, in Caledonian Railway Company v Walkers Trustees (1882) 7 App Cas 259, at 275: A judgment which is right, and consistent with sound principles, upon the facts and circumstances of the case which the House had to decide, need not be construed as laying down a rule for a substantially different state of facts and circumstances, though some propositions, wider than the case itself required, may appear to have received countenance from those who then advised the House.
+Pithier still was the Earl of Halsbury LC in Quinn v Leathem [1901] AC 495, at 506: . a case is only an authority for what it actually decides.
+Technically, therefore, I believe that our views are not binding, but they are of course persuasive.
+So it is only polite to the powerful arguments advanced by counsel, and to the patience with which Mrs Smith has listened to them, to indicate where I currently stand on each of the two broader issues.
+On the jurisdiction issue, I remain of the view to which I was inclined in R (Gentle) v Prime Minister [2008] UKHL 20, [2008] AC 1356, that British soldiers serving in Iraq were within the jurisdiction of the United Kingdom when they were killed, in one case by friendly fire and in the other by a road side bomb.
+I am quite clear that this was not part of the principle, or essential ground, upon which the House of Lords decided the case: this was that taking care to discover whether or not the war was legal in international law had nothing to do with the duty in article 2 to protect life.
+This can easily be tested.
+It would have made no difference to the decision on the issue in the case where the soldiers deaths had taken place: whether they were clearly within the jurisdiction of the United Kingdom or whether they were not.
+The House did hear some argument on the point, but nothing as full as the argument which this court has heard.
+Although I am sorry to disagree with colleagues whose opinions are worthy of the deepest respect, I agree with the opinions of Lord Mance and Lord Kerr, and for the very full reasons which they give, and there is nothing which I can usefully add.
+On the second issue, I agree that this is a question for a coroner to determine on the evidence that emerges at the inquest, but I also agree with Lord Phillips and Lord Rodger that we already know enough to raise the serious possibility that the United Kingdom may in some way have been in breach of its obligations under article 2.
+So the scope of the inquiry must be wide enough to look into this and, depending on the conclusions drawn from the evidence, the verdict must be able to reflect this.
+I do not believe that we are either allowing or dismissing an appeal on either issue, but if we are I would dismiss it on both.
+LORD BROWN
+Are our armed services abroad, in Iraq, Afghanistan or wherever else they may be called upon to fight, within the United Kingdoms jurisdiction within the meaning of article 1 of the European Convention on Human Rights? That is the critical first issue for decision on this appeal.
+If they are, then the United Kingdom is required to secure to them all the Convention rights and freedoms.
+Some will say that this is no less than they deserve.
+They are brave men and women, undoubtedly entitled to these rights and freedoms whilst serving (sometimes, as recently in Northern Ireland, on active service) at home.
+Why should they not enjoy the same rights when, whether they like it or not, they are called upon to face dangers abroad? When abroad, they are, after all, still subject to UK military law and, indeed, remain generally under the legislative, judicial and executive authority of the UK.
+Others, however, will say that to accord Convention rights and freedoms to our services whilst engaged in armed combat with hostile forces abroad makes no sense at all.
+It could serve only to inhibit decision making in the field and to compromise our services fighting power.
+For my part I can readily see the force of both arguments and do not pretend to have found this an easy case to decide.
+In the end, however, I have concluded that, save in an exceptional case like that of Private Smith himself whose death resulted from his treatment on base, Convention rights do not generally attach to our armed forces serving abroad.
+Having regard to the number and length of other judgments in the case, my own reasoning will be brief.
+Sometimes less is more.
+I take as my starting point the decision of the House of Lords in R (Al Skeini) v Secretary of State for Defence [2008] AC 153 where I sought to analyse the existing Strasbourg jurisprudence on the reach of article 1.
+Nothing that I have since heard or read has persuaded me that that analysis is wrong.
+It was known, of course, at the time this case was argued before us, that the application in Al Skeini was to be heard in Strasbourg on 9 June 2010, with the judgment of the Grand Chamber expected some 3 6 months later, and, obviously, if the application succeeds, it is likely to transform our understanding of the scope of article 1 in cases of this sort.
+Meanwhile, however, Al Skeini must be assumed to be correct and, in turn, the decision of the Grand Chamber in Bankovic v Belgium (2001) 11 EHRC 435 must be regarded as Strasbourgs ruling judgment on the point.
+There has been some suggestion (see, for example, paras 29 and 30 of Lord Phillips judgment) that, since Bankovic, a wider concept of article 1 jurisdiction based upon state agent authority has been gaining ground in Strasbourg.
+In Al Skeini (at paras 124 131) I dealt at length with one post Bankovic Strasbourg decision said to support such an approach Issa v Turkey (Merits) (2004) 41 EHRR 567 and concluded that it should not be understood to detract in any way from the clearly restrictive approach to article 1 jurisdiction adopted in Bankovic.
+Reference is now made to more recent Strasbourg decisions, in particular Al Saadoon and Mufdhi v United Kingdom (2009) 49 EHRR SE 95 and Medvedyev v France (Application No 3394/03) (unreported) 29 March 2010.
+To my mind, however, neither casts any real doubt on the Bankovic/Al Skeini analysis.
+In Al Saadoon the Court at para 62 cited para 132 of my own judgment in Al Skeini recognising the UKs jurisdiction over Mr Mousa essentially by analogy with the extra territorial exception made for embassies (an analogy recognised too in Hess v United Kingdom (1975) 2 DR 72, a Commission decision in the context of a foreign prison which had itself referred to the embassy case of X v Federal Republic of Germany) and, at paras 88 89, concluded that: . given the total and exclusive de facto, and subsequently also de jure, control exercised by the United Kingdom authorities over the premises in question, the individuals detained there, including the applicant, were within the United Kingdoms jurisdiction (see Hess v United Kingdom . ).
+This conclusion is, moreover, consistent with the dicta of the House of Lords in Al Skeini . (see para 62 above).
+In the Courts view, the applicants remained within the United Kingdoms jurisdiction until their physical transfer to the custody of the Iraqi authorities on 31 December 2008.
+It seems to me clear that the Court was there adopting, rather than doubting, the Al Skeini analysis.
+The decision of the Grand Chamber in Medvedyev is sufficiently described at para 30 of Lord Phillips judgment and paras 180 182 of Lord Mances judgment.
+I cannot see how it supports an argument for article 1 jurisdiction generally in respect of a states armed services abroad.
+All that said, I recognise that whilst there is nothing in Al Skeini (or, indeed, Bankovic) which supports the respondents argument on the present appeal, neither is there anything in the cases wholly inconsistent with it.
+True, as para 61 of Bankovic stated, article 1 reflects an essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case.
+And true it is too that the particular basis of exceptional jurisdiction being contended for here has not previously been recognised by the Court, the Commissions express reference to armed forces remaining under a states article 1 jurisdiction when abroad (for example in their 1975 admissibility decision in Cyprus v Turkey 2 DR 125 cited at para 49 of Lord Phillips judgment) being conspicuously omitted from more recent such formulations.
+Nevertheless, as I recognised at the outset, our armed forces abroad are subject not only to UK military law but also to the UKs general criminal and civil law and (as the Court of Appeal [2009] 3 WLR 1099 pointed out at para 29 of its judgment): As a matter of international law, no infringement of the sovereignty of the host state is involved in the United Kingdom exercising jurisdiction over its soldiers serving abroad.
+Plainly, therefore, it can respectably be argued that special justification exists for accepting an extra territorial basis of article 1 jurisdiction in their particular case.
+Arguably, moreover, this would eliminate at a stroke various apparent anomalies otherwise resulting from the position contended for by the Secretary of State for example, Convention rights attaching to a soldier in, say, a tented desert base camp (or military ambulance) but not when out with a patrol group, or, indeed, to a soldier like Private Smith who dies on base but not perhaps if his hyperthermia had resulted from inadequate care and water off base.
+The two principal reasons why for my part I would reject the respondents argument are these.
+First, because, if our armed forces abroad are within the reach of the Convention but, as Al Skeini decides, the local population are not, those responsible for the planning, control and execution of military operations will owe article 2 (and article 3) duties to our servicemen but not to the civilians whose safety is also imperilled by such operations.
+That would seem to me an odd and unsatisfactory situation (not to mention a situation unlikely to win the hearts and minds of the local population) and to sit uneasily with the growing Strasbourg case law on internal armed conflict which, it should be noted, has not hitherto been suggested to extend also to international armed conflict situations.
+Cases like Ergi v Turkey) (1998) 32 EHRR 388 (extending the principles established in McCann v United Kingdom (1995) 21 EHRR 97 to situations of armed conflict), Isayeva, Yusupova and Bazayeva v Russia (Application Nos 57947 49/00) (Isayeva I) and Isayeva v Russia (Application No 57950/00) (Isayeva II) (decisions of 24 February 2005) show, in the context respectively of Turkish army operations against the PKK in Turkey and Russian army operations against Chechnyan separatist fighters in Chechnya, the ECtHR closely scrutinising the planning, control and execution of military operations and asking whether all this has been done in such a way as to minimise, to the greatest extent possible, recourse to lethal force.
+The exigencies of armed conflict notwithstanding, Strasbourg requires the state to have taken all feasible precautions to avoid or at least minimise incidental loss of life.
+In all three cases substantive breaches of article 2 were found established.
+In Isayeva I, for instance, the Court criticised the failure of the operational command to timeously communicate the fact that civilians may have been in the vicinity of the forces on active deployment, the absence of provision of forward air controllers to direct the military aircraft participating in the attack, and the deployment of missiles with a blast radius of between 300 to 800 metres which the Court regarded as disproportionate weaponry; in Isayeva II it criticised the Russian militarys failure to adequately anticipate the arrival of Chechnyan fighters, the absence of any preemptive measures to warn or evacuate the populace, the failure to accurately quantify the operational risk of deploying aircraft armed with heavy combat weapons, and the decision to utilise what again the Court regarded as disproportionate and indiscriminate weaponry.
+As can be seen, Strasbourgs concern in these cases is essentially for the safety of civilians caught up in the conflict conflict, of course, occurring within the legal space (espace juridique) of the respective contracting states.
+Assuming Al Skeini is right, such civilians have no article 2 rights if they are outside the Council of Europe area.
+It is, however, the respondents case that the soldiers do.
+Is it really to be suggested that even outside the area of the Council of Europe Strasbourg will scrutinise a contracting states planning, control and execution of military operations to decide whether the states own forces have been subjected to excessive risk (risk, that is, which is disproportionate to the objective sought)? May Strasbourg say that a different strategy or tactic should have been adopted perhaps the use of airpower or longer range weaponry to minimise the risk to ground troops notwithstanding that this might lead to higher civilian casualties? Such problems would to my mind be inescapable were Strasbourg to find armed forces abroad within the reach of article 1 and then adopt with regard to their article 2 rights the approach hitherto taken in situations of internal armed conflict.
+My second principal reason for not holding the UKs armed forces abroad to be within the states article 1 jurisdiction is that this would be to go further than the ECtHR has yet gone, to construe article 1 as reaching further than the existing Strasbourg jurisprudence clearly shows it to reach.
+As the ECtHR itself pointed out in Bankovic (para 65), The scope of article 1 . is determinative of the very scope of the contracting parties positive obligations and, as such, of the scope and reach of the entire Convention system of human rights protection.
+Article 1 is in this respect to be contrasted with the Conventions substantive provisions and with the competence of the Convention organs, to both of which (as the Court had noted at para 64) the living instrument approach applies.
+It was for these reasons that all of us in Al Skeini decided that it was for the ECtHR to give the definitive interpretation of article 1 and that domestic courts should not construe it as having any wider reach than that established by Strasbourgs existing jurisprudence.
+The first five appellants there failed because, as Lady Hale put it (at para 91), she did not think that Strasbourg would inevitably hold that the deceased . were within the jurisdiction of the UK when they met their deaths.
+That is similarly my conclusion in the present case not, of course, with regard to Private Smith himself whose death, it is conceded, occurred in circumstances which did fall within the United Kingdoms jurisdiction, but rather with regard to our armed forces generally whilst serving abroad.
+For these reasons, together with those given by Lord Phillips and Lord Collins, I would accept the appellants argument upon the first issue.
+The second issue before us, although ostensibly raised with regard to Pte Smiths death, in reality invites our ruling as to which deaths amongst the UKs armed forces abroad require inquests that comply with the article 2 investigatory obligation.
+Plainly Pte Smiths does.
+Equally plainly, if the majority of us are right on the first issue, that would not be so in respect of most of our armed forces abroad (at any rate when not serving within the territory of another Council of Europe state).
+If, however, the majority of us are wrong on the jurisdiction issue in respect of our forces in, for example, Iraq and Afghanistan, and in any event with regard to our armed forces on, for example, active service in Northern Ireland, together with isolated cases such as that of Pte Smith, then I am in full agreement with Lord Phillips judgment on this issue and there is little that I wish to add.
+I agree that the obligation to hold an article 2 investigation arises only when there is ground for suspicion that the State may have breached a substantive obligation imposed by article 2 (Lord Phillips at para 84) which would certainly not ordinarily be the case where a soldier dies on active service abroad.
+I agree also with Lord Rodgers judgment on this point.
+As I earlier observed in R (Hurst) v London Northern District Coroner [2007] 2 AC 189, 214 (para 48): An article 2 investigative obligation only arises in the comparatively few cases where the states responsibility is or may be engaged.
+I agree also with Lord Phillips judgment at para 81 that an inquest will not always be the appropriate vehicle for discharging an article 2 investigatory obligation although I note what was said in the considered opinion of the Committee delivered by Lord Bingham in R (Middleton) v West Somerset Coroner [2004] 2 AC 182, 206 (para 47) that: in the absence of full criminal proceedings, and unless otherwise notified, a coroner should assume that his inquest is the means by which the state will discharge its procedural investigative obligation under article 2.
+I further agree with Lord Phillips that in practice the only real difference between a Jamieson inquest (R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1) and a Middleton inquest is likely to be with regard to its verdict and findings, rather than its inquisitorial scope.
+As I pointed out in Hurst (paras 27 and 51), the scope of the inquiry is essentially a matter for the coroner.
+Such indeed had been eloquently recognised in Jamieson itself in the Courts judgment given there by Sir Thomas Bingham MR (at para 14 of the Courts general conclusions, p 26): It is the duty of the coroner as the public official responsible for the conduct of inquests, whether he is sitting with a jury or without, to ensure that the relevant facts are fully, fairly and fearlessly investigated.
+He is bound to recognise the acute public concern rightly aroused where deaths occur in custody.
+He must ensure that the relevant facts are exposed to public scrutiny, particularly if there is evidence of foul play, abuse or inhumanity.
+He fails in his duty if his investigation is superficial, slipshod or perfunctory.
+But the responsibility is his.
+He must set the bounds of the inquiry.
+He must rule on the procedure to be followed.
+His decisions, like those of any other judicial officer, must be respected unless and until they are varied or overruled.
+As, however, I also pointed out in Hurst (para 51), the verdict and findings are not a matter for the coroner.
+These are severely circumscribed when an inquest is confined to ascertaining by what means the deceased came by his death (a Jamieson inquest); not so where the inquest is to fulfil the article 2 investigatory obligation when it must also ascertain in what circumstances the deceased came by his death (a Middleton inquest).
+Sometimes, of course, as in McCann v United Kingdom (1995) 21 EHRR 97 (the Death on the Rock case), short verdicts in the traditional form will enable the jury to express their conclusion on the central issue canvassed at the inquest (Hurst at para 48, citing Lord Bingham in Middleton at para 31).
+Other times, perhaps generally indeed, an article 2 obligation will require the coroner or jury to state conclusions upon the important underlying issues in a way that plainly goes beyond the sort of restricted verdict available in a Jamieson inquest and in such cases a Middleton inquest is required.
+Even then, however, as noted at para 37 of Middleton, the conclusions must be conclusions of fact as opposed to expressions of opinion.
+Nor must the verdict appear to determine any question of civil liability.
+Although, as I recognised in Hurst (para 51), the coroner may sometimes choose to widen the scope of the inquiry if he recognises that article 2 conclusions of fact (and thus a Middleton verdict and findings) are required, more probably (as Lord Hope envisages at para 95 of his judgment) the coroner is likely to decide the scope of inquiry with a view rather to the exercise of his rule 43 power to make a written report to a responsible authority aimed at avoiding similar fatalities in future.
+To my mind, guidance beyond these broad generalities is quite impossible.
+This is really not an area of the law in which advisory opinions are likely to prove especially helpful.
+LORD MANCE
+Issue 1 Jurisdiction: (a) general
+The first issue before the Supreme Court is whether a soldier on military service in Iraq is subject to the jurisdiction of the United Kingdom within the meaning of article 1 of the European Convention on Human Rights so as to benefit from the rights guaranteed by the Human Rights Act 1998 while operating in Iraq.
+If, or at least to the extent that, such a soldier is subject to United Kingdom jurisdiction within article 1, he will be entitled to rights guaranteed by the 1998 Act.
+During the period leading up to his death, Private Smith spent time both at locations (particularly the Al Amarah stadium) constituting part of the United Kingdom army bases in Iraq and elsewhere.
+He became ill on 13 August 2003 at the stadium after performing various duties off base (particularly supervising fuel distribution in circumstances where only coalition troops were acceptable to locals in that role and were, it appears, correspondingly stretched in terms of man power).
+He was taken then by ambulance to an United Kingdom accident and emergency medical centre at Abu Naji, where he sustained a cardiac arrest and died, the cause of death being heatstroke.
+The Secretary of State for Defence accepts that, in so far as the events leading to his death occurred on base, they occurred within United Kingdom jurisdiction for the purposes of article 1 of the Convention and that the conduct leading to them is subject to examination for compliance with article 2 of the Convention accordingly.
+But he submits that, in so far as they occurred elsewhere, the converse applies.
+This is because, in his submission, jurisdiction under article 1 is primarily territorial and the only relevant exception, covering United Kingdom bases in Iraq, arises from the analogy of United Kingdom embassies, consulates, vessels and aircraft and places of detention abroad.
+Some members of the Court describe this issue as academic.
+But it has a potential relevance in relation to the fresh inquest which has now to be held.
+Before the Court of Appeal, the Secretary of State noted that Mrs Smiths case regarding the circumstances leading to Private Smiths death had been extended to include circumstances that took place outside the British army base and hospital, and argued originally that, as these matters took place outside the jurisdiction of the UK, they can form no part of the consideration in this case of whether the UK is in arguable breach of its obligations under article 2 (skeleton, para 16).
+By the end of the hearing, the Secretary of State had conceded that he would not submit to the new coroner in the fresh inquest that the scope of that inquest is restricted in any way by any decision by him on the applicability (or not) of the enhanced article 2 investigative obligation (appellants note and Court of Appeal judgment, para 62.) However, by letters dated respectively 22 January and 12 February 2010 the coroner has (correctly) affirmed that it is not for the parties to agree the scope of the new inquest, but for the coroner to do this in the light of the judgment of this Court, and the Secretary of State has (correctly) accepted this to be so.
+For this reason, the scope and application of article 1 and article 2 are of potential relevance to the future conduct of the fresh inquest.
+It was on the analogy of embassies, consulates, vessels and aircraft and places of detention that the House of Lords held in R (Al Skeini) v Secretary of State for Defence [2007] UKHL 26; [2008] AC 153 that Mr Mousa (an Iraqi citizen who had died, allegedly as a result of torture, in United Kingdom custody in a United Kingdom base in Iraq) was within this countrys jurisdiction under article 1.
+The respondent, Private Smiths mother, supported by the Equality and Human Rights Commission, submits that the present case, concerning the relationship between a state and its own armed forces occupying Iraq, falls within another or a more general exception to the general principle of territoriality.
+(b) Gentle
+The Secretary of State submits that the House of Lords decision in R (Gentle) v Prime Minister [2008] UKHL 20; [2008] AC 1356 is binding authority in his favour, negativing the application of any such exception in the present context.
+He refers, in particular, to Lord Binghams speech at para 8(3): Subject to limited exceptions and specific extensions, the application of the Convention is territorial: the rights and freedoms are ordinarily to be secured to those within the borders of the state and not outside.
+Here, the deaths of Fusilier Gentle and Trooper Clarke occurred in Iraq and although they were subject to the authority of the defendants they were clearly not within the jurisdiction of the UK as that expression in the Convention has been interpreted: .
+Al Skeini . paras 79, 129.
+The claimants seek to overcome that problem, in reliance on authorities such as Soering v United Kingdom (1989) 11 EHRR 439, by stressing that their complaint relates to the decision making process (or lack of it) which occurred here, even though the ill effects were felt abroad.
+There is, I think, an obvious distinction between the present case and the Soering case, and such later cases as Chahal v United Kingdom (1996) 23 EHRR 413 and D v United Kingdom (1997) 24 EHRR 423, in each of which action relating to an individual in the UK was likely to have an immediate and direct impact on that individual elsewhere.
+But I think there is a more fundamental objection: that the claimants argument, necessary to meet the objection of extra territoriality, highlights the remoteness of their complaints from the true purview of article 2.
+Paras 79 and 129 in Al Skeini, to which Lord Bingham referred, concern jurisdiction based on effective control.
+Lord Bingham evidently considered that no other exceptional head of jurisdiction applied.
+However, in so far as argument was addressed to this point, it appears to have been extremely brief (see pp 1361B C and 1363G H).
+The passage quoted from Lord Binghams speech constituted the last of three reasons why article 2 could not embrace the process of deciding on the lawfulness of a resort to arms; and it is noticeable that, at its conclusion, in dismissing the submission based on Soering, Lord Bingham reverted to his previous two reasons.
+Other members of the House focused in their express reasoning on Lord Binghams first two reasons.
+But Lord Hoffmann, Lord Hope, Lord Scott, Lord Brown and I myself at paras 16, 28, 29, 71 and 74 all also agreed in general terms with Lord Binghams reasons.
+Lord Rodger said only that his reasons were essentially the same as Lord Binghams and Lord Hoffmanns (para 45), and Lady Hale regarded her reasons as being in substantial agreement with Lord Binghams (para 61), although she expressly disagreed with him on the question whether a British soldier serving under the command and control of his superiors was within the United Kingdoms jurisdiction within the meaning of article 1 (para 60).
+Lord Carswell left that point open (para 66), and decided the case on the basis (again part of Lord Binghams first two reasons) that article 2 did not involve a duty not to go to war contrary to the UN Charter or to investigate the lawfulness of an armed conflict.
+In the above circumstances, it is open to doubt whether the first part of the passage in para 8(3) quoted above from Lord Binghams speech was part of the ratio decidendi.
+But, even if it technically was, it was not the product of the detailed argument and citation which we have now had, and it would, in my view, be wrong to refuse to reconsider it de novo.
+(c) Bankovic and the concept of jurisdiction
+Leaving Gentle aside, the submissions of all parties have, realistically, taken as their general starting point the decisions of the European Court of Human Rights in Bankovic v United Kingdom (2001) 11 BHRC 435 and Al Saadoon and Mufdhi v United Kingdom (2009) 49 EHRR SE 95 and of the House of Lords in Al Skeini.
+Dicta in the House of Lords basing jurisdiction in Al Skeini on the total and exclusive de facto, and subsequently also de jure, control exercised by the United Kingdom authorities over the premises in question were referred to with approval by the European Court of Human Rights in Al Saadoon.
+The decision in Al Skeini is shortly to be reviewed in that court.
+But for present purposes the Supreme Court can and should accept it.
+This starting point avoids the need for any entirely open review of the concept of jurisdiction under article 1.
+Just how vexed that concept and how controversial the decisions in Bankovic and Al Skeini are appears from extensive literature which they have generated: see e.g. Lawson, Life after Bankovic: on the Extraterritorial Application of the European Convention on Human Rights; OBoyle, The European Convention on Human Rights and Extraterritorial Jurisdiction: A Comment on Life after Bankovic (both in F Coopman and M Kamminga, Extraterritorial Application of Human Rights Treaties; Antwerp Oxford 2004); Loucaides, Determining the Extra territorial Effect of the European Convention: Facts, Jurisprudence and the Bankovic case (2006) 4 EHRLR 391; Milanovic, From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties (2008) HRLR 8(3), 411; and King, The Extraterritorial Human Rights Obligations of States (2009) HRLR 521.
+Arguments that the European Court of Human Rights was guilty of a non sequitur in assimilating the concept of jurisdiction in article 1 to the concept in general international law and in relying upon this to restrict the extra territorial application of the Convention to exceptional circumstances only (see Milanovic, p 435) do not arise for consideration.
+Nor do similar arguments that the Court in Bankovic was wrong in failing to recognise, as a separate and equal head of jurisdiction having extra territorial effect, the existence of effective authority over individuals or of actual authority or control over a given territory or person, whether lawfully or unlawfully exercised, (Lawson, p 120, Loucaides, p 399 and Milanovic, p 435).
+Whatever the merits of giving the Convention a wider reach might be de lege ferenda, we are (like, in fact more so than, the House of Lords in Al Skeini: see per Lord Rodger, para 69) only concerned with its reach de lege lata.
+Criticisms of the House of Lords approach in Al Skeini to jurisdiction based on territorial control (see King, pp 534 536 and 545 547) and suggestions that the House ought (in the light of cases such as Issa v Turkey (2004) 41 EHRR 567) to have recognised a cause and effect notion of jurisdiction (King, p 553) are also out of place in the light of the reasoning in Bankovic and Al Skeini.
+The argument on the present appeal assumes the correctness of the general principles stated in Bankovic and Al Saadoon and applied in Al Skeini.
+According to these jurisdiction in article 1 refers primarily to territorial jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case (Bankovic, para 61).
+The Court in Bankovic explained this conclusion as follows: 59.
+As to the ordinary meaning of the relevant term in article 1 of the Convention, the Court is satisfied that, from the standpoint of public international law, the jurisdictional competence of a state is primarily territorial.
+While international law does not exclude a states exercise of jurisdiction extra territorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant states (Mann, The Doctrine of Jurisdiction in International Law, RdC, 1964, vol 1; Mann, The Doctrine of Jurisdiction in International Law, Twenty Years Later, RdC, 1984, vol 1; Bernhardt, Encyclopaedia of Public International Law edition 1997, vol 3, pp 55 59 Jurisdiction of States and edition 1995, vol 2, pp 337 343 Extra territorial Effects of Administrative, Judicial and Legislative Acts; Oppenheims International Law, 9th ed 1992 (Jennings and Watts), vol 1, 137; Dupuy, Droit International Public, 4th ed 1998, p 61; and Brownlie, Principles of International Law, 5th ed 1998, pp 287, 301 and 312 314). 60.
+Accordingly, for example, a states competence to exercise jurisdiction over its own nationals abroad is subordinate to that states and other states territorial competence (Higgins, Problems and Process (1994), p 73; and Nguyen Quoc Dinh, Droit International Public, 6th ed 1999 (Daillier and Pellet), p 500).
+In addition, a state may not actually exercise jurisdiction on the territory of another without the latters consent, invitation or acquiescence, unless the former is an occupying state in which case it can be found to exercise jurisdiction in that territory, at least in certain respects (Bernhardt, cited above, vol 3 at p 59 and vol 2, pp 338 340; Oppenheim, cited above, at 137; Dupuy, cited above, at pp 64 65; Brownlie, cited above, at p 313; Cassese, International Law, 2001, p 89; and, most recently, the Report on the Preferential Treatment of National Minorities by their Kin States adopted by the Venice Commission at its 48th Plenary Meeting, Venice, 19 20 October 2001).
+The Court found support for a primarily territorial approach to article 1 not only in general international law and the works cited in paras 59 and 60, but also in the travaux prparatoires (Bankovic, paras 19 21 and 63).
+During the negotiation of the Convention, the words all persons residing within the territories of the signatory States in article 1 were replaced by all persons within their jurisdiction.
+The Court noted that this was expressly on the basis that there were good grounds for extending the benefits of the Convention to all persons in the territories of the signatory States.
+However, it is not without significance that the replacement phrase adopted the word jurisdiction, rather than territories; and also that the Court itself has recognised, by the exceptions which it has endorsed, that the Convention is not exclusively confined in its application to persons within the territories of the signatory States.
+Lawson (cited above) points out (p 88) that the original proposal was to replace residing in by living in, but that the drafting sub committee noting that the aim was to widen as far as possible the categories of persons who are to benefit by the guarantees contained in the Convention proposed the replacement of residing within by within the jurisdiction (or, in French, relevant de leur jurisdiction).
+The use of the more flexible notion within the jurisdiction, with its potentially wider jurisprudential connotations, was clearly deliberate, even if it is not unlikely that the drafters did not give much thought at all to any extraterritorial impact of the Convention (Lawson, p 90; and see also Loucaides, above, p 397).
+Jurisdiction in general international law exists in the form of (a) jurisdiction to prescribe or legislate (and, as a subsidiary aspect, adjudicate), which is primarily territorial but generally also regarded as extending to a states nationals wherever they are, and (b) jurisdiction to enforce what is prescribed, which is usually only territorial (and does not usually exist, for example, against the persons of a states nationals, while they remain abroad): see Dr F A Mann in the writings cited in Bankovic at para 59, particularly RdC, 1964, pp 13, 22 et seq. and 127 et seq, and RdC, 1984, Chaps I and II, the Reinstatement of the Law Third: Restatement of the Foreign Relations Law of the United States, para 401 and Alcom Ltd v Republic of Colombia [1984] AC 580, 600C, per Lord Diplock.
+In drawing on the conception of jurisdiction in general international law (while also reminding itself of the Conventions special character as a human rights treaty: para 57), the Court was (as Lord Rodger noted in Al Skeini, para 64) relating the scope of the Convention to the existence of a pre existing relationship between the relevant state and the victim.
+For the Convention to apply, the mutual relationship must be one under which the state possessed and was able to enforce lawful authority and power over the victim and the victim was in return under and entitled to the states protection.
+Jurisdiction in international law is, as Dr Mann said (RdC, 1964, p 13), concerned with the states right of regulation or, in the incomparably pithy language of Mr Justice Holmes, with the right to apply the law to the acts of men.
+This means that there must be, translated to the international legal sphere, a similar bond of reciprocal allegiance to that identified domestically as existing between sovereign and subject in Calvins Case (1608) 7 Co Rep 1a; 77 ER 377: duplex et reciprocum ligamen; quia sicut subditus regi tenetur ad obedientiam, ita rex subdito tenetur ad protectionem; merito igitur ligeantia dicitur ab ligando, quia continet in se duplex ligamen.
+A states international jurisdiction, based on this reciprocal bond, respects the matching jurisdiction of other states based on their mutual relationship with those within their territories and their nationals.
+In international law, each state owes duties to protect those within its jurisdiction.
+If state A infringes the fundamental human rights of a person subject to state Bs jurisdiction, then, although that person may have no direct right against state A, it may become state Bs duty to pursue the matter at the international level against state A.
+In the same vein, the Court in Bankovic noted that the Convention was designed to ensure the observance of the engagements undertaken by the Contracting Parties (para 80) engagements which cannot be regarded as having been undertaken to benefit everyone in the world at large.
+Consistently with the above, in Dr Manns writings, jurisdiction in international law is thus associated with sovereignty: it is an aspect of sovereignty, it is coextensive with and, indeed, incidental to, but also limited by the states sovereignty (RdC, 1964, pp 24 31, esp p 30; see also RdC, 1984, p 20).
+In Bankovic itself, the only connection with the United Kingdom consisted in the act of bombing Belgrade which was alleged to constitute a breach of the Convention (a pure cause and effect notion of jurisdiction).
+In that context, it is unsurprising that the Court should emphasise that the Convention was not designed to be applied throughout the world, even in respect of the conduct of contracting states (para 80) and should underline the significance of a pre existing reciprocal relationship under which sovereignty of one sort or another was legitimately possessed and exercised.
+In Al Skeini (see paras 6, 61, 90, 97 and 132) the House of Lords decided that the United Kingdom as an occupying power did not, except within its military bases, have sufficient effective control over any territory of Iraq to bring such territory within its jurisdiction under article 1 of the European Convention on Human Rights.
+The present appeal raises a different question, whether the United Kingdom had sufficient authority under international law over its own forces in Iraq for them to be regarded as within its jurisdiction under article 1.
+(d) The respondents case
+For present purposes, the respondent accepts the approach taken by the Court in Bankovic and Al Saadoon and by the House in Al Skeini.
+But she relies on its underlying rationale the limitation of jurisdiction by reference to the limitations of sovereignty and the need to avoid conflicts of jurisdiction.
+This rationale appears with clarity in both paras 59 and 60 cited above.
+The suggested bases of extra territorial jurisdiction are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant States. [A] States competence to exercise jurisdiction over its own nationals abroad is subordinate to that States and other States territorial competence; and in addition a State may not actually exercise jurisdiction on the territory of another without the latters consent, invitation or acquiescence, unless the former is an occupying State in which case it can be found to exercise jurisdiction in that territory, at least in certain respects.
+In the respondents submission, the relationship between the United Kingdom and its armed forces in Iraq meets all these requirements for recognising that it involved in August 2003 the legitimate and effective exercise of jurisdiction, in the prescriptive, the adjudicatory and the enforcement senses.
+The United Kingdom was in August 2003 exercising its authority lawfully in Iraq, with the consent of the Coalition Provisional Authority (CPA), over United Kingdom troops including Private Smith, a United Kingdom citizen.
+By CPA Order No 17 issued in June 2003, the CPA formalised the status and arrangements governing the presence of the multinational force (MNF), which included the United Kingdoms armed forces, in Iraq.
+The MNF was given, inter alia, the right to enter into, remain in and depart from Iraq (section 13), freedom of movement without delay throughout Iraq (section 7), freedom of radio communications (section 6), the right to use without cost such areas for headquarters, camps or other premises as might be necessary as well as to use, free of cost or where this was not practicable at the most favourable rate, water, electricity and other public utilities and facilities (section 9).
+Importantly, by section 2 the MNF, its personnel, property, funds and assets were immune from Iraqi legal process and all MNF personnel were expressed to be subject to the exclusive jurisdiction of their Sending States.
+Further, the respondent submits, the CPA was in issuing CPA Order No 17 operating with the legal mandate of the Security Council, which by Resolution 1483 adopted on 22 May 2003 under Chapter VII of the UN Charter, had recognised the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command (the Authority), and called upon the Authority (in practice the CPA) consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory.
+The respondent therefore submits that there would be no interference with Iraqi sovereignty and no attempt to impose Convention standards on Iraq or anyone other than the British state, by recognising the existence of Convention obligations as between the United Kingdom and nationals like Private Smith serving in its armed forces in Iraq.
+There would be no question of Private Smith being brought within the Convention merely by virtue of the fact that he was a victim of an alleged breach of article 2.
+On the contrary, the relationship of command and control under which Private Smith served gave the United Kingdom a broad protective capability and responsibility, which meant that a wide range of Convention rights could be effectively secured for his benefit.
+Further, this being an exceptional head of jurisdiction, it was, in the respondents further submission, no objection if or that there might be some Convention rights which could not be secured; the objection, identified by the House in Al Skeini, to any application of the Convention based on tailoring and restricting Convention rights did not apply to the exceptional heads of jurisdiction.
+In this connection, the Secretary of State points to para 130 in Lord Browns speech in Al Skeini, to which I return below (para 193).
+These are forceful submissions, but they require closer analysis of the status of the United Kingdoms armed forces in Iraq.
+Paras 59 and 60 of the Courts judgment in Bankovic recognise that state A may exercise jurisdiction on or in the territory of state B either (a) with the consent, invitation or acquiescence of state B or (b) as an occupying state at least in certain respects.
+I will consider in turn these alternative bases of jurisdiction (a) and (b).
+But first I examine three specific cases of the exceptional extraterritorial jurisdiction contemplated in paras 59 and 60 of Bankovic.
+These were identified and analysed by Lord Brown in Al Skeini at paras 118 to 122.
+(e) Cases of exceptional extra territorial jurisdiction
+The first involves the forcible removal by state A from state B and with state Bs consent of a person wanted for trial in state A (Al Skeini, paras 118 119).
+Within this category, Lord Brown put calan v Turkey (2005) 41 EHRR 985, where the European Court of Human Rights said: 91.
+The Court notes that the applicant was arrested by members of the Turkish security forces inside an aircraft registered in Turkey in the international zone of Nairobi Airport.
+It is common ground that, directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was under effective Turkish authority and therefore within the jurisdiction of that state for the purposes of article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory.
+It is true that the applicant was physically forced to return to Turkey by Turkish officials and was under their authority and control following his arrest and return to Turkey (see, in this respect, the aforementioned decisions in Snchez Ramirez v France (1996) 86 A DR 155 and Freda v Italy (1980) 21 DR 250, and, by converse implication, Bankovi v Belgium [(2001) 11 BHRC 435].
+Lord Brown commented that, in circumstances where the forcible removal was effected with the full cooperation of the relevant foreign authorities and with a view to the applicants criminal trial in the respondent state, it was unsurprising that the Grand Chamber in calan had felt able to distinguish Bankovic by converse implication.
+The inference from para 91 in calan is that, if (a) state A exercises authority over an individual in state B by consent of state B, and (b) it does so in order to lead to exercise of state As ordinary domestic jurisdiction over that individual, then it is throughout exercising jurisdiction over that individual under article 1.
+The present case is not precisely on all fours (not least, because the United Kingdoms authority over its armed forces was to be exercised in Iraq), but, if the case could be analysed in terms of consent, that could hardly be critical in principle.
+A second exceptional category was considered by Lord Brown in para 121 with reference back to para 109(4)(iii), where he introduced the category in these terms: Certain other cases where a states responsibility could, in principle, be engaged because of acts which produced effects or were performed outside their own territory (para 69).
+Drozd and Janousek v France and Spain (1992) 14 EHRR 745, at para 91, is the only authority specifically referred to in Bankovic as exemplifying this class of exception to the general rule.
+Drozd, however, contemplated no more than that, if a French judge exercised jurisdiction extraterritorially in Andorra in his capacity as a French judge, then anyone complaining of a violation of his Convention rights by that judge would be regarded as being within Frances jurisdiction.
+In para 121, Lord Brown further explained this category: Another category, similarly recognised in Bankovic, was Drozd (see para 109(4)(iii) above ) into which category can also be put cases like X and Y v Switzerland (1977) 9 DR 57 and Gentilhomme, Schaff Benhadji and Zerouki v France (Application Nos 48205/99, 48207/99 and 48209/99) (unreported) 14 May 2002.
+In X and Y v Switzerland, Switzerland was held to be exercising jurisdiction where, pursuant to treaty provisions with Liechtenstein, it legislated for immigration matters in both states, prohibiting X from entering either.
+In Gentilhomme, France operated French state schools in Algeria, again pursuant to a treaty arrangement.
+Drozd concerned complaints brought by defendants tried in Andorra against France and Spain as being allegedly responsible for non observance of the Convention by persons from these countries nominated to sit as judges in Andorra.
+Its significance is that the European Court of Human Rights found it necessary to consider whether the judges acts could be attributed to France and Spain, even though they were not performed on the territory of those states (Drozd, para 91).
+As the Court explained in Bankovic (para 69) the impugned acts could not, in the circumstances, be attributed to the respondent states because the judges in question were not acting in their capacity as French or Spanish judges and as the Andorran courts functioned independently of the respondent states (para 69).
+Rix LJ in the Divisional Court in Al Skeini (paras 158 166 and 256 257) subjected Drozd to close scrutiny, and was puzzled by its reasoning.
+He noted that, if the judges sitting in Andorra had been acting in their capacities as French and Spanish judges, then in this most important legal sphere, in one sense the heart of what is meant by jurisdiction, there would have been a form of extension of French and Spanish jurisdiction into the territory of Andorra, and regarded Drozd as too much of a special case to provide any firm foundation for a submission that personal jurisdiction exercised extraterritorially by state agents or authorities is a broad principle of jurisdiction under article 1 (para 257).
+Special case though it was, Drozd points to the possibility that certain relationships, such as those between a national judge and those under his or her authority, may attract the operation of the Convention, irrespective of whether they take place within the territory of the judges state.
+Gentilhomme is of interest, not just because it recognises the operation by France in Algeria of French schools with the consent of Algeria as capable of amounting to an exercise of jurisdiction by France in Algeria within the scope of article 1, but also because, on the facts, France was held not responsible.
+The complainants children had, under French law, dual French and Algerian nationality but, under Algerian law, were only recognised as having Algerian nationality.
+The complaint related to the refusal to admit them to the French schools in Algeria.
+However, this was the result of a decision taken by Algeria unilaterally, with which France had no option but to comply although that decision was in breach of a declaration of cultural co operation which the two countries had signed on 19 March 1962.
+The Court held that the conduct complained of could not be attributed to France, and the complaint was accordingly incompatible with the Convention ratione personae.
+The possibility of exercising jurisdiction abroad by consent, invitation or acquiescence of the overseas state, to which the Court had referred in Bankovic, est subordonne la competence territoriale de cet autre Etat, et, en principe, un Etat ne peut concrtement exerciser sa jurisdiction sur le territoire dun autre Etat sans le consentement, linvitation ou lacquiescement de ce dernier (Bankovic, paras 59 60).
+This appears clearly to indicate that exceptional jurisdiction may be tailored, in extent and in the liability to which it is capable of giving rise, by reference to the scope of the authority for the exercise of which abroad consent is given.
+The third exceptional category involves the activities of [a states] diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that state (Bankovic, para 73, Al Skeini, paras 109(4)(ii) and 122).
+As regards the activities of diplomatic or consular agents abroad, the critical feature is, again, the consent of the foreign state, in accordance with general principles of international law, to the exercise within its territory of the authority of the sending state by representatives of that state.
+As Lord Brown noted in para 122, jurisdiction within article 1 has been held to exist both in relation to nationals of the sending state and even in relation to foreigners.
+In relation to nationals, the existence of such jurisdiction is more obvious than it is, perhaps, in relation to foreigners.
+The present case is concerned with the existence of jurisdiction in Iraq in relation to British soldiers.
+As to a states activities on board craft and vessels registered in, or flying the flag of, that state, the relevant consideration is, once again, that the state has under international law recognised authority and control over such craft and vessels since the view that a ship is a floating part of state territory has long fallen into disrepute (Brownlies Principles of Public International Law, 7th ed (2008), p 318).
+The recent decision of a seventeen member Grand Chamber in Medvedyev v France (Application No 3394/03) (29 March 2010) is not without interest in this connection.
+The Winner, a Cambodian vessel was engaged on drug trafficking in the high seas (Cape Verde).
+Belying its name, it was detected and boarded by the French authorities, who detained the crew on board and took them on the vessel to France for trial.
+France was, but Cambodia was not, party to the relevant international drug trafficking conventions, which did not in the circumstances authorise the arrest by France of the Cambodian vessel.
+Nevertheless, Cambodia had given France specific ad hoc authorisation to intercept, inspect and take legal action against the ship.
+A majority of the Court considered that the crew were within the jurisdiction of France for the purposes of article 1 on the simple basis of France having exercised full and exclusive control over the Winner and its crew, at least de facto, from the time of its interception, in a continuous and uninterrupted manner until they were tried in France (contrast Bankovic, cited above) (para 67).
+Bankovic was cited in para 64, where the Court noted that it was only in exceptional cases that acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them for the purposes of article 1, and that This excluded situations, however, where as in the Bankovic case what was at issue was an instantaneous extraterritorial act, as the provisions of article 1 did not admit of a cause and effect notion of jurisdiction (Bankovic, para 75).
+Having accepted that France had jurisdiction under article 1, the majority in Medvedyev went on to hold the detention of the crew unjustified, on the basis that, although international as well as domestic law was capable of shaping a procedure prescribed by law within article 5.1 (para 79), Cambodias ad hoc authorisation did not meet the requirements under article 5.1 of clearly defined and foreseeable law (paras 99 100).
+Presumably foreshadowing that conclusion, the majority appear in para 67 to have endorsed the possibility of a purely factual (albeit unlawfully exercised) concept of jurisdiction under article 1.
+In contrast, seven judges, dissenting from the majoritys conclusion under article 5.1, accepted that article 1 applied on the simple basis that the Winner with the agreement of the flag state was undeniably within the jurisdiction of France for the purposes of article 1 (para 10).
+That state B may authorise state A to exercise jurisdiction which would otherwise belong to state B for the purposes of article 1 is on any view consistent with the principles in Bankovic, paras 59 60, as well as with the three specific categories of extraterritorial jurisdiction which I have been considering.
+(f) The present case
+The present case falls directly within none of these specific categories.
+But all three categories depend upon the exercise by state A abroad of state power and authority over individuals, particularly nationals of state A, by consent, invitation or acquiescence of the foreign state B. They exemplify in this respect one underlying theme of paras 59 and 60 in Bankovic.
+The first question is whether the present case represents an example of the exercise by state A (here the United Kingdom) of its lawful authority and power over its nationals in state B (Iraq) with the consent of state B.
+If it does not, then it will be necessary to consider the alternative possibility mentioned in Bankovic, para 60, namely that the United Kingdom had, as an occupying power, jurisdiction under international law over its armed forces wherever they were in Iraq.
+(g) Exercise of jurisdiction by consent
+The answer to the first question depends upon the position of the CPA.
+The CPAs origin, role and status were examined in Al Skeini, particularly by Rix LJ in the Divisional Court at [2004] EWHC 2911 (Admin); [2007] QB 140, paras 9 39.
+Following their invasion of Iraq, the United States and United Kingdom became occupying powers within and subject to the provisions of the Hague Convention 1907 and the Fourth Geneva Convention 1949 (Rix LJ, para 11).
+The CPA was the creation of a freedom message issued in that capacity by United States General Tommy Franks on 16 April 2003 (Rix LJ, para 14).
+The formation and purpose of the CPA (to exercise powers of government temporarily and to transfer responsibility for administration to representative Iraqi authorities as soon as possible) were reported by letter by the two governments permanent representatives to the Security Council, The Security Council on 22 May 2003 adopted Resolution 1483 under Chapter VII of the UN Charter, that is as a measure taken to maintain or restore international peace and security.
+Resolution 1483 noted the contents of the letter and, as stated in para 171 above, recognised the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command (the Authority) and called upon the Authority (in practice the CPA) consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory (para 4).
+But it also supported a transformative process in Iraq, through the formation, by the people of Iraq with the help of the Authority, of an Iraqi interim administration as a transitional administration run by Iraqis, until an internationally recognised, representative government is established by the people of Iraq and assumes the responsibilities of the Administration (Resolution 1483, para 9).
+The CPA had by regulation R1 dated 16 May 2003 already declared that there were vested in the CPA all executive, legislative and judicial authority necessary to achieve its objectives, to be exercised under relevant UN Security Council resolutions. (anticipating in this respect by some 6 days the effect of Resolution 1483, a draft of which was by then publicly available).
+In June 2003 the CPA issued CPA Order No 17, which formalised the status and arrangements covering the United Kingdoms occupying forces (para 171 above).
+To complete the picture, on 13 July 2003, following two national conferences and widespread consultation, the Iraqi Governing Council (IGC) announced its formation and was recognised formally by the CPA by regulation R6, in line with para 9 of Security Council Resolution 1483, as the principal body of an Iraqi interim administration, with which the CPA would consult and co ordinate on all matters involving the temporary governance of Iraq.
+The Security Council by Resolution 1500 on 14 August 2003 welcomed the establishment of the IGC as an important step towards the formation by the people of Iraq of an internationally recognized, representative government that will exercise the sovereignty of Iraq.
+In its later Resolution 1511 of 16 October 2003, the Security Council, again acting under Chapter VII, reaffirm[ed] the sovereignty and territorial integrity of Iraq, and underscore[ed] in that context, the temporary nature of the exercise by the Coalition Provisional Authority (Authority) of the specific responsibilities, authorities, and obligations under applicable international law recognized and set forth in resolution 1483 (2003) .
+The IGC eventually dissolved itself on 1 June 2004, and on 28 June 2008 the CPA transferred authority to the Iraqi Interim Government, which became the sole sovereign authority of Iraq (Rix LJ, para 38).
+The CPA was thus exercising, and was recognised by the Security Council as having under international law, responsibility for the temporary governance and administration of Iraq throughout the relevant period from the end of May to August 2003.
+In the Court of Appeal in Al Skeini [2005] EWCA Civ 1609; [2007] QB 140, para 123, Brooke LJ said that the CPA, which was not an instrument of the UK government, had the overall executive, legislative and judicial authority in Iraq whenever it deemed it necessary to exercise such authority to achieve its objectives.
+In the House of Lords (para 83) Lord Rodger expressed himself as being in agreement with paras 120 to 128 of Brooke LJs judgment when concluding that the United Kingdom lacked effective control of Basra and its surrounding areas.
+The CPA expressly endorsed and authorised the presence of the United Kingdoms armed forces in Iraq, and it had the support of Security Council Resolution 1483 in so acting.
+But that does not necessarily mean that the CPA equates with the state of Iraq for the purposes of consenting to the presence of foreign troops under international law.
+The CPA, although separate from the United Kingdom government, was the creature of the occupying forces, and Security Council Resolutions 1483 and 1511 were careful to refer to the CPA in terms consistent with this.
+An analysis which relies upon the Security Councils recognition of the CPAs role and upon CPA Order No 17 as a basis for saying that the state of Iraq consented to the presence and activities of United Kingdom forces in Iraq may be regarded as essentially circular: the CPA owed its existence, rights and responsibilities to the presence and activities of the occupying forces, and the Security Councils Resolution was drafted on a basis which can be said merely to recognise this truth.
+On the other hand, if that is so, then it is also true there was during the period May to August 2003 no other body which could claim to represent the state of Iraq, and a correspondingly reduced risk of any objectionable clash of sovereignty.
+(g) Exercise of jurisdiction over occupying forces
+This brings me to the other head of extra territorial jurisdiction mentioned in Bankovic, para 60, although not the subject of detailed analysis there or in Al Skeini: that is jurisdiction as an occupying force.
+The laws of war apply whatever the legitimacy or otherwise of the casus belli.
+They would not otherwise have much point.
+In the present case, the specific authorities, responsibilities, and obligations under applicable international law of the occupying forces, as well as the role of the CPA, were also endorsed by Security Council Resolution 1483.
+The European Court of Human Rights recognised in para 60 in Bankovic that occupation can give jurisdiction at least in certain respects, and referred to inter alia Oppenheims International Law (vol I Peace) (9th ed) (1992) para 137.
+This states that: International law, however, gives every state a right to claim exemption from local jurisdiction, chiefly for itself, its Head of State, its diplomatic envoys, its warships and its armed forces abroad.
+In relation to the words and its armed forces, footnote 19 refers to paras 556 558, which, in relation to belligerent occupation of foreign territory, refer in turn by footnote 4 to paras 166 172b of volume II Disputes,War and Neutrality of the same work (7th ed) (1952).
+Para 166 states that, in modern international law: although the occupant in no wise acquires sovereignty over such territory through the mere fact of having occupied it, he actually exercises for the time being military authority over it.
+As he thereby prevents the legitimate sovereign from exercising his authority, and claims obedience for himself from the inhabitants, he must administer the country, not only in the interest of his own military Para 169 continues: advantage, but also, at any rate so far as possible, for the public benefit of the inhabitants.
+As the occupant actually exercises authority, and as the legitimate Government is prevented from exercising its authority, the occupant acquires a temporary right of administration over the territory and its inhabitants; .
+In carrying out [the administration] the occupant is totally independent of the constitution and law of the territory, since occupation is an aim of warfare, and the maintenance and safety of his forces and the purpose of war, stand in the foreground of his interest, and must be promoted under all circumstances and conditions.
+But, although as regards the safety of his army and the purpose of war the occupant is vested with an almost absolute power, as he is not the sovereign of the territory he has no right to make changes in the laws, or in the administration, other than those which are temporarily necessitated by his interest in the maintenance and safety of his army and the realisation of the purpose of war.
+On the contrary, he has the duty of administering the country according to the existing laws and the existing rules of administration; he must ensure public order and safety, must respect family honour and rights, individual lives, private property, religious convictions and liberty.
+It has been observed that the transformative aspect of Resolution 1483 (para 184 above) and the transformation in Iraqi society and governance which the CPA actually implemented do not reconcile easily with the traditional principles governing occupation stated in Oppenheim: see Adam Roberts, The End of Occupation (2005) ICLQ 27 and Transformative Military Occupation: Applying the Laws of War and Human Rights (2006) 100 AJIL 580, 604 618 and Nehal Bhuta, The antimonies of transformative occupation (2005) EJIL 721.
+It seems clear that neither the occupying states nor the Security Council viewed the situation as one in which there was, after the overthrow of Saddam Hussein, any legitimate sovereign.
+It also seems improbable that the wide ranging and in certain respects fundamental measures introduced by the CPA for the temporary governance of Iraq (as described by Rix LJ in the Divisional Court in Al Skeini at paras 19 to 26) would fit with the traditional duty of administering the country according to the existing laws and the existing rules of administration to which Oppenheim refers in para 169.
+However, I think it unnecessary to consider how far and on what basis the occupation of Iraq may have had features going beyond that of traditional belligerent occupation.
+What is important for present purposes is that the status even of a traditional occupying state is recognised and regulated by international law, and that it is one in which as regards the safety of his army and the purpose of war the occupant is vested with an almost absolute power, and in which the occupant has the right to claim immunity for its armed forces from local jurisdiction.
+In the context of Bankovic, the European Court may in para 60 have been thinking primarily of jurisdiction exercised by a state through occupying forces over local inhabitants.
+But to the extent that such jurisdiction exists, it does so only because of the states pre existing authority and control over its own armed forces.
+An occupying state cannot have any jurisdiction over local inhabitants without already having jurisdiction over its own armed forces, in each case in the sense of article 1 of the Convention.
+That is not of course to equate a states jurisdiction over third parties with its pre existing and more widely based jurisdiction over its own armed forces (see further para 191 below).
+In providing for the occupying forces to have immunity from Iraqi legal process, CPA Order No 17 reflected the general principle of state immunity, under international and common law, precluding civil suits in one state against a foreign state or its servants in respect of sovereign activities of that foreign state: see eg Littrell v United States of America (No 2) [1995] 1 WLR 82, Holland v Lampen Wolfe [2000] 1 WLR 1573 and Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2006] UKHL 26; [2007] 1 AC 270 (the position relating to torture not being relevant on this appeal) and, under general international law, para 137 of Oppenheim (para 187 above).
+No such general immunity today exists under English law as between the United Kingdom and those within its territory or having its nationality, whether the conduct occurs within or outside the United Kingdom.
+Soldiers can bring proceedings in England against the Ministry of Defence in respect of any breach of the states common law duty of care towards them: Crown Proceedings (Armed Forces) Act 1987, section 1.
+That such liability is capable of arising in respect of operations or activity anywhere in the world appears implicit in section 1 of the 1987 Act (read in the light of section 10 of the Crown Proceedings Act 1947 which it repealed) as well as in section 2 of the 1987 Act.
+The United Kingdom government is thus already liable to receive claims at common law by soldiers serving in Iraq based, for example, on allegations of failure to take proper care in relation to their safety, other than in the context of active operations against an enemy.
+A distinction between actual operations against an enemy (during the course of which no common law duty of care exists) and other activities of combatant services in time of war was drawn in Shaw Savill and Albion Co Ltd v Commonwealth of Australia (1940) CLR 344, Burmah Oil Company Ltd v Lord Advocate [1965] AC 75, 110, per Lord Reid (using the term battle damage to describe the former category), Mulcahy v Minister of Defence [1996] QB 732 and Bici v Ministry of Defence [2004] EWHC 786 (QB), paras 90 100.
+It is unnecessary to examine it or its scope here.
+I can also leave undecided the question whether the doctrine of act of state might in limited circumstances make even a claim by a British subject non justiciable: see Nissan v Attorney General [1970] AC 179; Bici v Ministry of Defence (above), para 88.
+In providing for the United Kingdom to have exclusive jurisdiction, CPA Order No 17 also mirrored in effect the domestic position, whereby British soldiers are subject to United Kingdom military law wherever they serve.
+This was so under the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957 (the Service Acts), backed up by rules and regulations, including the Queens Regulations 1975, in force in 2003; and it remains so since their replacement from 31 October 2009 by the Armed Forces Act 2006.
+Although the Service Acts are largely silent on their territorial scope, it is not in dispute that their provisions governed service overseas as well as domestically: see Al Skeini, per Lord Bingham at paras 15(4) and 26.
+This is, for example, reflected in provisions for courts martial to have jurisdiction over offences committed abroad (Naval Discipline Act 1957, section 48(1)) and to sit abroad (Army Act, section 91): see also Halsburys Laws of England, Armed Forces, vol 2(2), para 303, footnote 4, noting that the jurisdiction of army and air force courts martial to try offences committed outside the United Kingdom is to be inferred from the fact that each of the offence creating provisions provides that the offence in question is committed by any person subject to military or air force law without any limiting words as to where the offence must be committed.
+Section 70(1) of the Army Act has made it an offence for any person subject to military law to commit a civil law offence anywhere in the world.
+Section 367 of the 2006 Act now provides expressly that Every member of the regular forces is subject to service law at all times.
+(h) Conclusion on issue of jurisdiction
+In the light of the above, it is in my view possible to give a clear answer to the question whether the United Kingdom had jurisdiction under international law over its armed forces wherever they were in Iraq.
+If the United Kingdom did not, then no state did.
+The invasion clearly and finally ousted any previous government.
+The United Kingdom was the only power exercising and having under international law authority over its soldiers.
+In so far as there was any civil administration in Iraq, it consented to this.
+If the CPAs consent is disregarded as coming from what was, in effect, an emanation of the two occupying powers, then the United Kingdom was, and was by Security Council Resolution 1483 recognised as, an occupying power in Iraq.
+Bankovic indicates that one basis on which the UK could be regarded as having had jurisdiction over its forces in Iraq would have been by consent of the state of Iraq.
+It would be strange if the position were different in the absence of any Iraqi government to give such consent, or therefore to object, to the exercise of such jurisdiction by the UK over its occupying forces.
+As an occupying power, the UK was necessarily in complete control of the armed forces by which it achieved such occupation, and had under international law an almost absolute power as regards their safety (Oppenheim, para 169, above), as well as duties regarding the effective administration of Iraq and the restoration of security and stability, to be performed through such forces.
+The United Kingdom did not have such effective control over the whole of the area of Southern Iraq or even Basra as could cause such area to be equated with territory of the United Kingdom, or therefore to require the United Kingdom to ensure the full range of Convention rights to all within it.
+It is, however, a different matter to suggest that the United Kingdom ceased to have jurisdiction over its armed forces (with the consequence that it ceased to owe them any further Convention duty) whenever they were out of base; and the United Kingdoms jurisdiction over its own armed forces within article 1 does not mean that it had jurisdiction within article 1 over all or any other persons with whom those armed forces came into contact off base.
+The actual feasibility of the United Kingdom assuring and providing protection for its armed forces in Iraq depends on the circumstances, including the circumstances and place in which such forces are serving.
+But to distinguish fundamentally between the existence of the protective duties on the part of the United Kingdom towards its armed forces at home and abroad also appears to me as unrealistic under the Convention as it is at common law.
+The relationship between the United Kingdom and its armed forces is effectively seamless.
+Members of the armed forces serve under the same discipline and conditions wherever they are, and they are required to go wherever they are ordered.
+The relationship is not territorial, it depends in every context and respect on a reciprocal bond, of authority and control on the one hand and allegiance and obedience on the other.
+The armed forces serve on that basis.
+The compact is that they will receive the support and protection of the country they serve.
+I recognise that these considerations could apply even in a case where the United Kingdom did not have under international law a recognised role, like that of an occupying power which it had in Iraq.
+That may, on another day, lead back to re examination of statements (such as that in Medvedyev: see para 182 above) which contemplate the possibility that article 1 may embrace purely factual, though unlawfully exercised, jurisdiction.
+That possibility does not however require consideration on this appeal.
+Where, as here, the United Kingdom was present in Iraq, both with the consent of the only civil administrative authority that existed and in any event as an occupying power recognised as such under international law by the Security Council, there is in my view an irresistible case for treating the United Kingdoms jurisdiction over its armed forces as extending to soldiers serving in Iraq for the purposes of article 1 of the Convention.
+In Al Skeini (para 53) Lord Rodger said, in the context of interpreting the scope of the Human Rights Act 1998, that where a public authority has power to operate outside of the United Kingdom and does so legitimately for example, with the consent of the other state in the absence of any indication to the contrary it would only be sensible to treat the public authority, so far as possible, in the same way as when it operates at home.
+Similar thinking applies to the scope of a states jurisdiction under article 1 of the Convention, and is not only consistent with, but positively supported by, the Courts reasoning in Bankovic.
+In the present case, Lord Collins, whose judgment I have read after formulating my own, identifies a number of cases where commonsense in his view justifies a recognition of extra territorial jurisdiction within article 1 albeit necessarily of a limited nature tailored to the context (see paras 281, 301 and 306).
+I agree, but in my view commonsense also suggests a similar analysis of the relationship between the United Kingdom and the British army.
+Is such a conclusion precluded on the basis that Convention rights cannot properly be tailored? I do not believe so.
+We are concerned with an exceptional head of jurisdiction.
+In Al Skeini, Lord Brown said this at para 130: Realistically the concept of the indivisibility of the Convention presents no problem in the categories of cases discussed in paras 119 126 above: those concern highly specific situations raising only a limited range of Convention rights.
+This passage might, on one view, be read as suggesting that there is something inherent in the exceptional categories of cases discussed in paras 119 to 126 which means that it could never realistically be suggested that the state was in such cases under any general Convention obligation to secure the Convention rights.
+But it is not obvious why.
+The true explanation must be that in circumstances falling within one of the exceptional categories the states Convention duties are limited to those falling within the scope of the relationship giving rise to the exception in question.
+The consul cannot be expected to guarantee the full range of Convention rights, any more than can a state exercising authority by consent in other circumstances, such as those existing where it takes someone into custody (calan), or operates a school (Gentilhomme) or mans a court (Drozd), abroad by consent of the foreign state.
+The United Kingdom could not guarantee the full range of Convention rights to foreign litigants using its courts.
+Yet, once a person brings a civil action in the courts or tribunals of a state, there indisputably exists a jurisdictional link for the purposes of article 1: Markovic v Italy (2006) 44 EHRR 1045, para 54.
+Thus the Convention was applied, unsurprisingly in my view without anyone suggesting that it might not, as the measure of the legitimacy of claims by such nationals against the United Kingdom for refusal to up rate their pensions to the same level as those of persons residing in the United Kingdom who had made equivalent National Insurance contributions: Carson v United Kingdom (Application No 42184/05), 16 March 2010, where the claims in fact failed on the basis that persons residing within and outside the territory of the United Kingdom were not in an analogous situation.
+I add, without needing to explore this further, that, even in relation to territorially based jurisdiction, factual inability to enforce all the Convention rights, due to temporary loss of control to rebel forces, may, it appears, qualify the extent of the jurisdiction enjoyed and of the duties attaching to it: Ilacu v Moldova and Russia (2005) 40 EHRR 1040 (GC), paras 332 333.
+The United Kingdoms jurisdiction over its armed forces is essentially personal.
+The United Kingdom cannot and cannot be expected to provide in Iraq the full social and protective framework and facilities which it would be expected to provide domestically.
+But the United Kingdom could be expected to take steps to provide proper facilities and proper protection against risks falling within its responsibility or its ability to control or influence when despatching and deploying armed forces overseas.
+Will there be consequences beyond or outside any that the framers of the Convention can have contemplated, if Convention rights, and in particular those under article 2, continue to apply as between the United Kingdom and members of its armed forces serving abroad? That the obligation on states under article 1 to secure the Convention rights to everyone within their jurisdiction is, in principle, capable of applying to members of the armed forces as it does to anyone else is clear: see Engel v The Netherlands (1976) 1 EHRR 647, paras 54, 59, and en v Turkey (Application No 45824/99), 8 July 2003, para 1.
+The factors which justify exposing soldiers to the risk of death differ fundamentally from those that apply where civilian lives are at risk.
+But there is nothing that makes the Convention impossible or inappropriate of application to the relationship between the state and its armed forces as it exists in relation to overseas operations, in matters such as, for example, the adequacy of equipment, planning or training.
+See also on these points Gentle, per Lord Hope, para 19.
+Mr Eadie QC for the Secretary of State accepted in his submissions that it could be argued that to send a soldier out of the United Kingdom (or no doubt, in the light of Al Skeini, out of base) on a mission with inadequate equipment or training could involve a breach of the Convention, by analogy with the principle recognised in Soering v United Kingdom (1989) 11 EHRR 439 and referred to in Bankovic, para 68; and that coroners inquests in respect of deaths on active service in Iraq or Afghanistan have addressed such issues.
+The jurisprudence of the European Court of Human Rights includes cases where that court has examined closely and criticised the conduct of armed forces in domestic contexts.
+Such cases start with McCann v United Kingdom (1995) 21 EHRR 97, relating to the shooting by SAS officers of members of the Provisional IRA suspected of planning to attack the Royal Anglian Regiment in Gibraltar, and include Isayeva, Yusupova and Bazayeva v Russia (Application Nos 57947 49/00), 24 February 2005, and Isayeva v Russia (Application No 57950/00), 24 February 2005, relating to the conduct of military operations by the Russian armed forces against Chechen separatist fighters which led to the deaths of civilians.
+In such cases, it appears that the exigencies of military life go to the standard and performance, rather than the existence of, any Convention duty.
+Outside the sphere of combat operations or battle damage (para 34 above), this has been held also to be the position at common law, in which connection Elias J said in Bici v Ministry of Defence, para 104 that Troops frequently have to carry out difficult and sensitive peace keeping functions, such as in Northern Ireland, whilst still being subject to common law duties of care.
+The difficulties of their task are reflected in the standard of the duty rather than by denying its applicability.
+The European Court of Human Rights has (as Lord Hope noted in Gentle, paras 18 19) itself also acknowledged that when interpreting and applying the rules of the Convention it is necessary to bear in mind the particular characteristics of military life and its effects on the situation of individual members of the armed services (Engel, para 54, and en, p 1(b)).
+Reluctance about accepting the application of article 2 to the armed forces serving abroad may be due to concerns on several scores: first, the improbability that the founding fathers of the Convention perceived that jurisdiction under article 1 would extend to such matters, second, the apparent absence from the Convention of any immunities paralleling those of combat operations or battle damage (or, perhaps, act of state) recognised at common law (para 189 above), and, third, the extent to which the Court has in practice shown itself ready to re examine and re assess minutely, after the event and in the cold light of day, the factual conduct and decision making of member states in difficult circumstances, as evidenced perhaps by some decisions already mentioned, including in particular McCann and, recently, Medvedyev.
+But none of these matters seem to me to justify giving to the concept of jurisdiction a different or more limited meaning to that which, in my view, follows from the guidance which the Court has already given, particularly in Bankovic.
+As to the first such matter, the scope and application of the Convention, as revealed over the years, would probably surprise its founding fathers in many respects, and it seems particularly unrealistic to measure the scope of article 1 (fixed though it is, rather than living) by reference to the now revealed positive meaning of article 2 (cf Lord Phillipss comment to like effect in para 54).
+As to the second and third matters, it would have been foreseeable when the Convention was concluded that combat operations against an enemy might take place in the territory of a Contracting State a context in which the Secretary of State accepts the application of the Convention.
+The armed forces have not infrequently also been involved in combat operations in bases under attack in Afghanistan or, previously, Iraq.
+On the approach accepted in Al Skeini and in Al Saadoon and Mufdhi v United Kingdom (2009) 49 EHRR SE95, the United Kingdom is already required to ensure that its armed forces enjoy whatever protection the Convention, and in particular article 2, may require in such situations.
+The possible existence of Soering type liability for sending troops out from the United Kingdom with inadequate equipment or training is also acknowledged by the Secretary of State (para 196 above).
+If (as to which I express no view) the Convention contains no homologue of the common law immunity in respect of combat operations or battle damage, that is, therefore, a concern that already exists in contexts recognised as falling within Contracting States jurisdiction under article 1 of the Convention.
+It is not a guide to the scope of article 1.
+In fact, the Convention does contain at least one provision aimed at addressing this concern.
+Under article 15 of the Convention states are, in time of war or other public emergency, permitted, to the extent strictly required by the exigencies of the situation, to derogate from article 2 in respect of deaths resulting from lawful acts of war.
+By article 15 the Contracting States were catering for the natural concern that military operations against an enemy should not be unduly hampered.
+Finally, the Secretary of State submits, even if a soldier in Private Smiths position might be thought to be entitled to the protection of the Convention (and of article 2 in particular) at all times while serving overseas, whether or not he was on a British base, a domestic court should decline so to decide, but should leave the matter to be taken (whether in relation to this or another case) to Strasbourg.
+The principle here relied upon is that the role of United Kingdom courts, when interpreting the Convention, is to keep in step with Strasbourg neither lagging behind, nor leaping ahead: doing no more, but certainly no less (R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323, para 20, per Lord Bingham) or no less, but certainly no more (Al Skeini: paras 90 and 106, per Lady Hale and Lord Brown).
+However, it is our duty to give effect to the domestically enacted Convention rights, while taking account of Strasbourg jurisprudence, although caution is particularly apposite where Strasbourg has decided a case directly in point or, perhaps, where there are mixed messages in the existing Strasbourg case law and, as a result, a real judicial choice to be made there about the scope or application of the Convention.
+But neither is the case here.
+Strasbourg has not decided any case directly in point, and both the messages contained in its existing jurisprudence and considerations of general principle seem to me to point in a clear direction.
+In my judgment the armed forces of a state are, and the European Court of Human Rights would hold that they are, within its jurisdiction, within the meaning of article 1 and for the purposes of article 2 wherever they may be.
+On that basis, it is incumbent on us under the Human Rights Act 1998, s.6, to give effect to that conclusion.
+I would dismiss the appeal on the first issue.
+Issue 2 article 2
+The second issue is whether the fresh inquest into Private Smiths death must conform with the procedural obligation implied into article 2 of the Convention.
+In essence: what kind of inquest should the coroner hold, leading to what kind of verdict, in respect of Private Smiths death? Again, since questions of jurisdiction are involved, this issue cannot simply be answered by reference to the Secretary of States concession (para 159 above) that he will not object to the fullest type of inquest and (presumably) verdict.
+The reference to the procedural obligation implied into article 2 is significant.
+Article 2 has two aspects; one substantive, the other procedural.
+The latter is implied in order to make sure that [the former is] effective in practice; and is parasitic upon the existence of the substantive right, and cannot exist independently: R (Gentle) v Prime Minister [2008] UKHL 20; [2008] AC 1356, paras 5 6, per Lord Bingham; and see Jordan v United Kingdom (2001) 37 EHRR 52, para 105 and Edwards v United Kingdom (2002) 35 EHRR 487, para 69.
+In its substantive aspect, article 2 requires states not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life: R (Middleton) v West Somerset Coroner [2004] UKHL 10; [2004] 2 AC 182, para 2 of the opinion of the Appellate Committee given by Lord Bingham.
+Where there is such an established and appropriate framework, casual errors of judgment or acts of negligence (or operational as opposed to systematic failures) by state servants or agents will not by themselves amount to breach of the substantive obligation inherent in article 2 (a principle established in the context of medical negligence): Powell v United Kingdom (2000) 30 EHRR CD 362, Takoushis v Inner North London Coroner [2005] EyWCA Civ 1440; [2006] 1 WLR 461, paras 51 to 58; Byrzykowski v Poland (2006) 46 EHRR 675, paras 104 106; and Savage v South Essex Partnership NHS Foundation Trust (MIND intervening) [2008] UKHL 74; [2009] AC 681.
+In its procedural aspect, article 2 requires member states to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the foregoing substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated: Middleton, para 3.
+Thus to make good [a] procedural right to the inquiry which the respondent seeks, she must show at least an arguable case that the substantive right arises on the facts .: Gentle, para 6, per Lord Bingham.
+The framework of procedures and means of enforcement required under the substantive aspect of article 2 must include, where appropriate, means of civil redress and criminal prosecution.
+The present focus is however on the procedural aspect of article 2, and on its requirement (based clearly on the potential involvement of the state in the death) for an effective public investigation by an independent official body into certain types of death, that is those occurring in circumstances potentially engaging the substantive right which article 2 contains.
+English law has long required a coroners inquest in respect of certain types of death.
+Pending the coming into force of the relevant sections of the Coroners and Justice Act 2009, the position is governed by the Coroners Act 1988.
+Section 8(1) requires a coroner to hold an inquest in respect of any body lying within his district where there is reasonable cause to suspect that the deceased (a) has died a violent or an unnatural death, (b) has died a sudden death of which the cause is unknown or (c) has died in prison (or in a place or circumstances requiring an inquest under any other Act).
+Section 8(3) requires the coroner to summon a jury, in various cases, including where it appears that (c) applies, or the death occurred while the deceased was in police custody, or resulted from an injury caused by a police officer in the purported execution of his duty or was caused by an accident, poisoning or disease requiring notice under section 19 of the Health and Safety at Work etc Act 1974, or in circumstances the continuation or possible recurrence of which is prejudicial to public health or safety.
+Such an inquest is designed to lead to a verdict, certified by an inquisition setting out, so far as such particulars have been proved (i) who the deceased was; and (ii) how, when and where the deceased came by his death: section 11(3) to (5) and rule 36 of the Coroners Rules 1984.
+There is a clear overlap (particularly when sections 8(1)(c) and 8(3) apply) between the circumstances in which the 1988 Act requires a coroners inquest and those in which the procedural obligation inherent in article 2 arises.
+But the two do not necessarily coincide.
+The domestic duty to hold an inquest can quite often arise in circumstances not engaging the procedural obligation under article 2.
+The procedural obligation inherent in article 2 may be satisfied by other forms of investigation than an inquest, for example a public inquiry or even criminal proceedings.
+Where the domestic duty to hold an inquest and the procedural obligation inherent in article 2 coincide, the difficulty arose under English law that the coroners duty to seek to ascertain how the deceased came by his death was interpreted as limiting him to considering by what means the deceased died, rather than looking more widely at the circumstances in which this occurred: R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1.
+In Middleton, which concerned the suicide in prison of a long term prisoner, the House of Lords addressed this difficulty, by acknowledging that a broader inquiry was required under article 2, if the investigation was to ensure the proper accountability of state agents for deaths occurring under their responsibility.
+Accordingly, it held, pursuant to section 3(1) of the Human Rights Act 1998, that the word how must in such a context be given the expanded meaning of in what broad circumstances, so as to give effect to the requirements to be read into article 2 of the Convention.
+The House thus distinguished between a traditional Jamieson inquest and an article 2 compliant Middleton inquest.
+In R (Hurst) v London Northern District Coroner [2007] UKHL 13; [2007] 2 AC 189, it was argued that Middleton had established the expanded meaning of how for all contexts, including those not engaging article 2, and that the traditional Jamieson inquest had therefore been entirely superseded.
+The House categorically rejected the argument.
+The question arose in Hurst was whether it would serve any useful purpose to reopen an inquest.
+Lady Hale and I took the view that the distinction between the scope of investigation, (rather than verdict) possible in a Jamieson as opposed to a Middleton inquest was not as stark as we understood Lord Brown (with whom Lord Bingham agreed) to be suggesting: compare paras 19 and 23, per Lady Hale and paras 74 76, per Lord Mance, with paras 51 and 56 57, per Lord Brown.
+I drew attention (para 74) to the possibility of a coroners report to a responsible person or authority under rule 43 of the Coroners Rules 1984.
+Lord Rodger (to whom I must have been mistaken in referring in para 74) was at pains to stress the distinction in scope at paras 6 7, noting that on the Jamieson approach the allegations of failure by the police to heed prior warnings of hostility on the part of the deceaseds killer towards the deceased would be outside the scope of the wider enquiry that would have been required on a Middleton approach.
+The potential limitations of the Jamieson approach on the scope of investigation were encapsulated by Sir Thomas Bingham MR in that case, [1995] QB 1, 23G, in a reference to rule 36 of the 1984 Rules as requiring that the proceedings and evidence shall be directed solely to ascertaining the deceaseds identity, the place and time of death and how the deceased came by his death.
+The Coroners and Justice Act 2009 (not yet in force) might appear to perpetuate the distinction by underlining that it is only when necessary under article 2 that the purpose of ascertaining how, when and where the deceased came by his or her death is expanded so as to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death.
+It is in these circumstances of relevance that Lord Phillips questions the extent of the distinction, and in particular whether there is any difference in practice between a Jamieson and a Middleton inquest, other than the verdict (paras 69(ii) and 78), and to note that he has on this point the support of Lord Walker (though he also agrees with Lord Rodger on this point) as well as of Lord Collins and Lord Kerr.
+Lord Hope expressly (para 95) and, as I read him, Lord Rodger implicitly (paras 112 115) see a continuing distinction between the scope of investigation under a Jamieson and a Middleton inquest.
+For my part, I would have wished to be able to go as far as Lord Phillips, but I do feel some difficulty about questioning whether there is in practice any real distinction at all (save in the verdict expressed), having regard to Hurst and the 2009 Act and also having regard to my relative ignorance as to the extent to which such a distinction between the two types of inquest is in fact meaningful in day to day practice (as the courts in Jamieson, Middleton and Hurst must on the face of it have thought).
+However, it seems unnecessary on this appeal to pursue this aspect further.
+Everyone agrees that coroners have a considerable discretion as to the scope of their enquiry, although the verdict that they may deliver differs according to the type of inquest being held.
+The practical solution is no doubt for coroners to be alert to the possibility that a Middleton type verdict may be, or become, necessary, and to be ready to adapt the scope of their investigation accordingly.
+In the present case, the coroner (whose verdict has been set aside on different grounds) concluded that, on the facts as he saw them in the first inquest, a traditional Jamieson type of inquest was all that was required.
+Collins J and the Court of Appeal disagreed.
+They concluded that a Middleton type inquest was required.
+The Court of Appeals reasoning was that Private Smith was in a position analogous to that of a prisoner, a person detained on mental or other grounds or a conscript, and that a Middleton type inquest was required in respect of any death of such a person in prison or custody or while serving in the army.
+The Secretary of State appeals to the Supreme Court against the Court of Appeals reasoning and conclusion.
+The states procedural duty under article 2 to provide for or ensure an effective public investigation by an independent official body of certain deaths or near deaths has been developed in the case law of the European Court of Human Rights and explored in domestic case law, including that of the House of Lords in R (Amin) v Secretary of State for the Home Department [2003] UKHL 51; [2004] 1 AC 653, Middleton (above) and R (L(A Patient)) v Secretary of State for Justice [2008] UKHL 68; [2009] AC 588.
+Certain categories of case in which the substantive right contained in article 2 has been held to be potentially engaged, with the result that the procedural obligation has been held to exist, are clearly recognisable: (i) Killings by state agents: McCann v United Kingdom (1995) 21 EHHR 97, para 161 (article 2 requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State") and Jordan v United Kingdom (2001) 37 EHRR 52; and see Amin, paras 20 and 25, per Lord Bingham. (ii) Deaths in custody: Salman v Turkey (2000) 34 EHHR 425, esp para 99 (unexplained death in custody, because persons in custody are in a vulnerable position and the authorities are under a duty to protect them); Edwards v United Kingdom (2002) 35 EHRR 487 (violent death of a prisoner at the hands of his cell mate); Akdogdu v Turkey (Application No 46747/99), 18 October 2005, (suicide in prison); R (D) v Secretary of State for the Home Department [2005] EWHC 728 (Admin); [2006] EWCA Civ 143, considered by the House of Lords in L (a case of suicide in prison). (iii) Conscripts: lvarez Ramn v Spain (Application No 51192/99), 3 July 2001; Kilin v Turkey (Application No 40145/98),7 June 2005; Savage v South East Essex NHS Foundation Trust (MIND intervening) [2008] UKHL 74; [2009] AC 681, paras 35 37, per Lord Rodger. (iv) Mental health detainees: Savage although concerned not with any duty to investigate under article 2, but with responsibility in a claim for damages for the suicide of a mental health detainee who succeeded in absconding and committed suicide highlights the analogy between the states duties (v) towards persons in custody and persons in detention for mental health reasons as well as conscripts.
+Other situations where the State has a positive substantive obligation to take steps to safeguard life.
+Such situations exist not only where the right to life is inherently at risk, but also where the State is on notice of a specific threat to someones life against which protective steps could be taken: Osman v United Kingdom (1998) 29 EHRR 245; neryildiz v Turkey (2004) 41 EHRR 325 (state allegedly tolerated and, for political reasons, encouraged slum settlements close to a huge uncontrolled rubbish tip, without making any effort to inform the settlers of dangers posed by the tip, which in the event exploded, killing some 39 residents).
+In neryildiz the Court said that, where lives had actually been lost in circumstances potentially engaging the responsibility of the State, the procedural aspect of article 2 entailed a further duty on the State to ensure an adequate response judicial or otherwise so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished (para 91), and that the applicable principles are rather to be found in those the Court has already had occasion to develop in relation notably to the use of lethal force, principles which lend themselves to application in other categories of cases (para 93, italics added for emphasis).
+The Court explained that, just as in homicide cases the true circumstances of the death often in practice were, or might be, largely confined within the knowledge of state officials or authorities, so in its view such considerations are indisputably valid in the context of dangerous activities, when lives have been lost as a result of events occurring under the responsibility of the public authorities, which are often the only entities to have sufficient relevant knowledge to identify and establish the complex phenomena that might have caused such incidents (para 93).
+It added that: the requirements of article 2 go beyond the state of official investigation, where this has led to the institution of proceedings in the national courts: the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law (para 95).
+In neryildiz itself, it was not the preliminary investigation following the tragedy that was at fault, but rather the operation of the judicial system in response to the tragedy and investigation: paras 96, 115, 117 118 and 150 155.
+The procedural obligation incumbent on the state to investigate deaths which, either of their inherent nature or in their particular circumstances, involve the states potential responsibility under article 2 may be distinguished from the general substantive obligation under article 2 to establish an appropriate regulatory, investigatory and judicial system.
+The distinction was drawn clearly in respect of a third party killing in Menson v United Kingdom (2003) 37 EHRR CD 220.
+The Court there said: The Court observes that the applicants have not laid any blame on the authorities of the respondent State for the actual death of Michael Menson; nor has it been suggested that the authorities knew or ought to have known that Michael Menson was at risk of physical violence at the hands of third parties and failed to take appropriate measures to safeguard him against that risk.
+The applicants case is therefore to be distinguished from cases involving the alleged use of lethal force either by agents of the State or by private parties with their collusion (see, for example, McCann v United Kingdom (1995) [21 EHRR 97]; Jordan v United Kingdom (2001) [37 EHRR 52]; Shanaghan v United Kingdom, (Application No 37715/97), judgment of 4 May 2001, ECHR 2001 III (extracts), or in which the factual circumstances imposed an obligation on the authorities to protect an individuals life, for example where they have assumed responsibility for his welfare (see, for example, Edwards v United Kingdom (2002) [35 EHRR 487]), or where they knew or ought to have known that his life was at risk (see, for example, Osman v United Kingdom (1998) [29 EHRR 245].
+The Court went on: However, the absence of any direct state responsibility for the death of Michael Menson does not exclude the applicability of article 2.
+It recalls that by requiring a State to take appropriate steps to safeguard the lives of those within its jurisdiction (see LCB v United Kingdom (1998) [27 EHRR 212], para 36), article 2 para 1 imposes a duty on that state to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person, backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions (see Osman, cited above, para 115).
+With reference to the facts of the instant case, the Court considers that this obligation requires by implication that there should be some form of effective official investigation when there is reason to believe that an individual has sustained life threatening injuries in suspicious circumstances.
+The investigation must be capable of establishing the cause of the injuries and the identification of those responsible with a view to their punishment.
+Where death results, as in Michael Mensons case, the investigation assumes even greater importance, having regard to the fact that the essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life (see mutatis mutandis, the Edwards judgment, above cited, para 69).
+Analysis: Both the substantive and the procedural limbs of article 2 are therefore capable of giving rise to obligations of investigation on the part of state authorities, including the courts.
+The present appeal concerns the circumstances in which article 2 gives rise to a particular procedural obligation on the part of the state of its own motion to initiate an effective public investigation by an independent official body following a death or near death.
+This in turn depends upon whether the circumstances involve a potential breach of the substantive obligation which article 2 contains.
+The questions are how general is this obligation and whether it was potentially engaged by the circumstances giving rise to Private Smiths sad death.
+The present case: The Court of Appeal treated Private Smiths death as analogous to the killing or suicide of a prisoner, detainee or conscript.
+It said (para 105): The question is therefore whether the principles apply to soldiers on active service in Iraq.
+We conclude that they do.
+They are under the control of and subject to army discipline.
+They must do what the army requires them to do.
+If the army sends them out into the desert they must go.
+In this respect they are in the same position as a conscript.
+Once they have signed up for a particular period they can no more disobey an order than a conscript can.
+The army owes them the same duty of care at common law.
+We recognise that they may not be quite as vulnerable as conscripts but they may well be vulnerable in much the same way, both in stressful situations caused by conflict and in stressful situations caused, as in Private Smith's case, by extreme heat.
+We see no reason why they should not have the same protection as is afforded by article 2 to a conscript.
+The scope of this reasoning is uncertain.
+It is unclear in particular whether the Court of Appeal was suggesting that all deaths of military personnel in service require to be investigated by a Middleton type inquiry.
+Certainly, it was the respondents submission before the Supreme Court that all soldiers deaths on active service must be regarded as being potentially the states responsibility, because of the degree of control in a closed system, and, therefore, as requiring full investigation by a Middleton type inquiry.
+In my judgment, that submission goes too far.
+Death on military service was an everyday risk in the environment of Iraq, as it is today in Afghanistan.
+Military service against hostile forces in a harsh environment is a situation par excellence where soldiers lives are likely to be lost without their employing state having even potential responsibility.
+I do not think that courts should subscribe to a view that all military service involves lions led by donkeys (Alan Clarks words in his 1961 work, The Donkeys: a History of the British Expeditionary Force in 1915, the inspiration for Joan Littlewoods Oh, What a Lovely War!).
+That may or may not have been a fair description of Earl Haigs strategy in the First World War.
+But, whatever debate may arise about the adequacy of equipment or funding for the armed forces in todays world, I do not think that it should open on an assumption that modern generals or modern ministers of defence are necessarily or even potentially in breach of their article 2 duties.
+There needs to be something more than that.
+The European Court of Human Rights jurisprudence summarised in para 210 above, is focused on deaths where, because of the nature or context (whether general or specific) of the death, the state can, without more, be said realistically to have some form of responsibility and in particular where it may alone have sufficient relevant knowledge to identify and establish the cause of the death or near death.
+Whether it can be said that such responsibility potentially exists in other cases depends upon their particular circumstances.
+The significance of a state having exclusive knowledge of the relevant events appears to be that this tends to open up a possibility of state involvement and a corresponding need for public investigation to exclude or establish that possibility.
+Nothing in the case law, and nothing in principle, establishes or indicates that the duty extends to every death of every soldier on active service.
+There are two particular differences between the present case and any situation previously considered.
+First, the present case concerns a volunteer Territorial Army soldier, who, the Supreme Court was told, would also have volunteered to go to Iraq (before, then, being served with compulsory call up papers to protect his position, presumably in respect of such matters as employment).
+I accept that a person who volunteers for active service puts himself or herself in a position where he or she is under extreme discipline, bound to obey orders in a harsh physical environment, the concomitant being that the army authorities must protect him or her against risks potentially arising from obeying such orders.
+But it does not follow that every death by heatstroke engages, without more, the states potential responsibility.
+Second, the case concerns death, not by killing, suicide or violence, but by heat associated with the admittedly harsh physical environment in which Private Smith was placed.
+It was incumbent on the army authorities to address the risks of heat in active service in Iraq, and put adequate systems in place to meet them.
+But, again, not every death by heat on active service in Iraq can or should be treated without more as involving a potential failure by the state to fulfil that responsibility or a defective system of protection, or therefore, in my view, as requiring the same level of scrutiny and investigation as a death by killing or suicide of a person in custody or a conscript.
+Some further examination of the particular facts is called for, before such a conclusion.
+Conclusion on issue 2
+In my view, therefore, the coroners general approach was correct.
+Only if there were sufficient indicia of such a failure or deficiency was it incumbent on the state of its own motion to ensure an effective public investigation by an independent official body, and incumbent therefore on the coroner to expand the inquest to become a Middleton type inquest.
+The coroner in the first inquest (whose inquisition has now been set aside) concluded that there were insufficient indicia.
+Death resulting from negligence by members of the armed forces in the application of an established and appropriate system of protection is not axiomatically to be equated with state responsibility for the death under article 2: see para 215 above.
+But the sequence of events set out in Mrs Smiths case (paras 4 to 35), including the coroners own recommendations after giving judgment, are suggestive of systematic rather than simply operational errors and persuade me that there is here a sufficient case of state responsibility for Private Smiths death for us to be able to rule now that the fresh inquest should be of the Middleton type.
+The Secretary of States agreement serves merely to confirm the appropriateness of this on the particular facts.
+I would therefore answer the second issue (identified in para 200 above) affirmatively.
+It also follows that I would maintain the declaration contained in para 1 of Collins Js Order dated 12 May 2008 (deleting only its final words as set out in the Courts judgment, since it is the judgments in this Court that will now be determinative).
+LORD COLLINS Preliminary
+The academic nature of the debate on the first issue
+As the Court of Appeal recognised, the question of jurisdiction under article 1 on this appeal is academic.
+After Private Smith collapsed in the stadium where he was billeted, he was taken by ambulance to the medical centre at the camp, where he died of heatstroke.
+The Secretary of State conceded that the relevant circumstances leading to Private Smiths death took place within the geographical area of a British army camp and a British army hospital, and that a soldier who dies on a United Kingdom base dies within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention: [2008] 3 WLR 1284, at [7] (Collins J); [2009] 3 WLR 1099, at [8], [14] (CA).
+These concessions flowed from the decision of the House of Lords in R (Al Skeini) v Secretary of State for Defence [2007] UKHL 26, [2008] AC 153 (see [6], [61], [132] for the concessions) that the Secretary of State was right to concede the correctness of the Divisional Courts reasoning that Mr Mousas death in a British military detention centre in Iraq was within the scope of the Convention because the camp was to be assimilated to exceptional cases of extraterritoriality such as embassies and consulates: [2007] QB 140, at [287] (Div Ct).
+Nevertheless the Court of Appeal decided to hear argument on, and rule upon, the question whether a British soldier in the Territorial Army, who is on military service in Iraq, is subject to the jurisdiction of the United Kingdom within the meaning of article 1 of the Convention, so as to benefit from the rights guaranteed by the Human Rights Act 1998, while operating in Iraq, or whether he is only subject to the jurisdiction for those purposes when he is on a British military base or in a British hospital.
+The reason why the Court of Appeal took this course is that Collins J had decided the broader question, and because both the Secretary of State and the Equality and Human Rights Commission had characterised the question as being of great general significance or importance.
+The question is plainly one of importance, but it is unfortunate that it has been decided in the courts below, and will be decided in this court, in a case in which the point does not arise for decision and in which it is conceded to be academic.
+There is an obvious danger in giving what are in substance advisory opinions on hypothetical facts divorced from any concrete factual situation: see R (Weaver) v London and Quadrant Housing Trust (Equality and Human Rights Commission intervening) [2009] EWCA Civ 587, [2010] 1 WLR 363, at [90].
+That is particularly so in the present case.
+In some of the cases on article 1 the Strasbourg court has considered relevant the degree of control or authority exercised by the respondent state in the foreign territory and the existence of the consent of the territorial state to the exercise of authority by the respondent state: see eg Loizidou v Turkey (Preliminary Objections) (1995) 20 EHRR 99, at [62]; Bankovi v Belgium (2001) 11 BHRC 435, at [60], [71]; calan v Turkey (2003) 37 EHRR 238, at [93]; (2005) 41 EHRR 985, at [91]; Issa v Turkey (2004) 41 EHRR 567, at [69]; Al Saadoon and Mufdhi v United Kingdom (admissibility) (2009) 49 EHRR SE 95, at [85].
+The degree of authority and control exercised by United Kingdom forces in Iraq, and the legal authority under which they operated, have varied from time to time over a lengthy period which is still continuing.
+The invasion of Iraq by coalition forces led by the United States of America (with a substantial force from the United Kingdom and smaller contingents from Australia and Poland) began on 20 March 2003.
+Major combat operations ceased at the beginning of May 2003.
+Private Smith was in Iraq from 18 June 2003 and died on 13 August 2003.
+It was accepted by the Secretary of State that between 1 May 2003 and 28 June 2004 (when the occupation formally ended) the United Kingdom was an occupying power for the purposes of the Hague Regulations on the Laws and Customs of War on Land, 1949, and the Fourth Geneva Convention on the Protection of Civilians in Time of War, 1949, in those areas of Southern Iraq where British troops exercised sufficient authority.
+On the relationship between international human rights law and international humanitarian law (such as the Geneva Conventions) contrast Dennis, Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation (2005) 99 AJIL 119, 141 with Roberts, Transformative Military Occupation: Applying the Laws of War and Human Rights (2006) 100 AJIL 580, 594.
+The Coalition Provisional Authority (CPA) was established on 16 April 2003 by the United States Government as a caretaker administration until an Iraqi government could be established.
+On 13 May 2003 the United States Secretary for Defense appointed Ambassador Paul Bremer as Administrator of the CPA with responsibility for the temporary governance of Iraq.
+The CPA administration was divided into regional areas.
+CPA South remained under United Kingdom responsibility and control.
+It covered the southernmost four of Iraq's eighteen provinces, and United Kingdom troops were deployed in the area.
+The CPA was not a subordinate organ or authority of the United Kingdom.
+The United Kingdom was represented at CPA headquarters through the office of the United Kingdom Special Representative, who had no formal decision making power within the CPA.
+All the CPAs administrative and legislative decisions were taken by Ambassador Bremer.
+By CPA Order No 17, issued in June 2003, all coalition personnel were expressed to be subject to the exclusive jurisdiction of their Sending States (section 2(3)) and immune from legal process and arrest or detention (section 2(1), (3)), and coalition facilities were to be inviolable (section 9(1)): While any areas on which such headquarters, camps or other premises are located remain Iraqi territory, they shall be inviolable and subject to the exclusive control and authority of the MNF, including with respect to entry and exit of all personnel.
+The MNF shall be guaranteed unimpeded access to such MNF premises.
+Where MNF Personnel are co located with military personnel of Iraq, permanent, direct and immediate access for the MNF to those premises shall be guaranteed.
+On 22 May 2003 the UN Security Council adopted Resolution 1483 under Chapter VII of the UN Charter.
+The Security Council re affirmed the sovereignty and territorial integrity of Iraq and recognised the specific authorities, responsibilities, and obligations under applicable international law of [the United States and the United Kingdom] as occupying powers under unified command.
+The Resolution supported the formation of an Iraqi interim administration as a transitional administration run by Iraqis until an internationally recognised, responsible government was established to assume the responsibilities of the CPA (article 9).
+In July 2003 the Governing Council of Iraq was established, which the CPA was to consult on all matters concerning the temporary governance of Iraq.
+UN Security Council Resolution 1500 (2003) of 14 August 2003 welcomed the establishment of the Governing Council of Iraq, and Resolution 1511 (2003) of 16 October 2003 determined that the Governing Council of Iraq and its ministers were the principal bodies of the Iraqi interim administration which embodied the sovereignty of the State of Iraq during the transitional period until an internationally recognised, representative government was established and assumed the responsibilities of the CPA; called upon the CPA to return governing responsibilities and authorities to the people of Iraq as soon as practicable; and invited the Governing Council of Iraq to produce a timetable and programme for the drafting of a new constitution for Iraq and for the holding of democratic elections under that constitution.
+It authorised the coalition to take all necessary measures to contribute to the maintenance of security and stability in Iraq and provided that the requirements and mission of the coalition would be reviewed within one year of the date of the Resolution and that in any case the mandate of the coalition was to expire upon the completion of the political process to which the resolution referred.
+On 8 March 2004 the Governing Council of Iraq promulgated the Law of Administration for the State of Iraq for the Transitional Period, which provided a temporary legal framework for the administration of Iraq for the transitional period which was due to commence by 30 June 2004 with the establishment of an interim Iraqi government.
+Security Council Resolution 1546 (2004) was adopted on 8 June 2004.
+It endorsed the formation of a sovereign Interim Government of Iraq to assume full responsibility and authority by 30 June 2004 for governing Iraq, and welcomed that, also by 30 June 2004, the occupation will end and [the CPA] will cease to exist, and that Iraq will reassert its full sovereignty (article 2).
+It noted that the presence of the coalition force was at the request of the incoming Interim Government (as set out in correspondence between the Iraqi Prime Minister and the United States Secretary of State annexed to the resolution) and reaffirmed the authorisation for the force to remain in Iraq, with authority to take all necessary measures to contribute to the maintenance of security and stability there.
+Provision was again made for the mandate to be reviewed within 12 months and to expire upon completion of the political process previously referred to.
+On 28 June 2004 the occupation came to an end when full authority was transferred from the CPA to the Interim Government and the CPA ceased to exist.
+Subsequently the coalition forces, including the United Kingdom force, remained in Iraq pursuant to the request and consent of the Iraqi Government and authorisations from the Security Council.
+All of the relevant Security Council resolutions from 1483 (2003) onwards reaffirmed the sovereignty of Iraq.
+Consequently the legal position of the United Kingdom forces has changed over the period since the invasion.
+Between March 2003 and June 2004 the United Kingdom was a belligerent occupant.
+The effective government of Iraq from April 2003 until June 2004 was the CPA, together with (from July 2003) the Governing Council of Iraq.
+From June 2004 the United Kingdom forces have been present at the request of, and with the consent of, the Iraqi Government.
+The consequence of the way in which these proceedings have been dealt with is that the court is being asked to determine whether the article 2 obligation existed in relation to a British soldier who died in Iraq in August 2003, when the United Kingdom forces were belligerent occupants in part of Iraq with a very small force.
+In 2003, in the area of Southern Iraq for which the United Kingdom had responsibility there were about 8,000 British troops for a population of 2,760,000: R (Al Skeini) v Secretary of State for Defence [2004] EWHC 2911 (Admin), [2007] QB 140, at [42] (Div Ct).
+The United Kingdom was not in effective control of Basra and surrounding areas: [2007] UKHL 26, [2008] AC 153, [83], per Lord Rodger, approving Brooke LJ [2005] EWCA Civ 1609, [2007] QB 140, [124] (CA).
+The Court of Appeal recognised in the present case that at the time of Private Smiths death the army was neither in effective control of Iraqi territory nor acting through the consent, invitation or acquiescence of the local sovereign or its government: [2009] 3 WLR 1099 [37] [38].
+The case for Mrs Smith and for the Equality and Human Rights Commission on Private Smith was not put on the basis of Private Smith having been on territory under the control of the United Kingdom, or of the army as a State agent.
+Their case was that Private Smith was subject to the jurisdiction of the United Kingdom as a member of the armed forces.
+But the question whether the elements of authority and control by the United Kingdom and/or consent of the territorial sovereign are relevant cannot be avoided, and it is regrettable that the issues fall to be decided either without any relevant factual background, or on the hypothesis that the death occurred (as Private Smiths death did) in 2003, when United Kingdom forces were not in effective control, and when they were there as belligerent occupants without the consent of the territorial sovereign, and that the only issue is whether jurisdiction over armed forces is sufficient for article 1 purposes.
+R (Gentle) v Prime Minister
+The next preliminary matter is that the first question raised on this appeal has already been the subject of a decision of the House of Lords.
+In R (Gentle) v Prime Minister [2008] UKHL 20, [2008] AC 1356, the appellants submitted that all British servicemen on active service overseas fall within the article 1 jurisdiction of the United Kingdom.
+The appellants specifically relied upon the fact that the soldiers were United Kingdom nationals under the command and control of the United Kingdom and that they were under the authority of British law when in Iraq.
+The argument was firmly rejected by Lord Bingham, who said at [8(3)]: Here the deaths of Fusilier Gentle and Trooper Clarke occurred in Iraq and although they were subject to the authority of the defendants they were clearly not within the jurisdiction of the UK as that expression in the Convention has been interpreted [citing Al Skeini [79] and [129]].
+Lady Hale took a different view ([60]), and Lord Carswell left the point open ([66]), but Lords Hoffmann ([16]), Hope ([28]), Scott ([29]), Rodger ([45]), Brown ([71]) (but perhaps with a reservation at [70]) and Mance ([74]) agreed generally with Lord Binghams opinion.
+It would be a sterile exercise to consider whether this holding was part of the ratio, since on any view this important question was not subject to extensive argument, and it would be wrong for this court to dispose of the matter simply on the basis that the issue was covered by precedent.
+But it has to be said that the views of Lord Bingham in this area (as in many others) are entitled to the greatest possible respect.
+The application of the Convention and the meaning of jurisdiction
+The problem presented on this appeal is not a problem unique to the application of modern human rights instruments.
+In the United States there are many decisions on the application of constitutional rights to United States citizens and aliens abroad.
+See (among many others) Henkin, The Constitution as Compact and as Conscience: Individual Rights Abroad and at our Gates, 27 Wm & Mary L Rev 11, 17 24 (1985); Lowenfeld, US Law Enforcement Abroad: The Constitution and International Law 83 AJIL 880 (1989) and 84 AJIL 444 (1990); Brilmayer and Norchi, Federal Extraterrioriality and Fifth Amendment Due Process, 105 Harv L Rev 1217 (1992).
+The trend in the United States is to extend the protection of the Constitution to United States citizens abroad (but not, generally, aliens) whose rights are violated by United States authorities.
+It has been said that when the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land: Reid v Covert, 354 US 1, 6 (1957), per Black J, for a plurality of four justices (military court tried and convicted the wife of a US air force sergeant for the murder of her husband at an air base in England: entitled to a jury trial as required by the Sixth Amendment).
+Thus in relation to the Iraq conflict, United States citizens have been held entitled to make constitutional claims arising out of detention or alleged torture by US military officials: Kar v Rumsfeld, 580 F Supp 2d 80 (DDC 2008); Vance v Rumsfeld, 5 March 2010, WL 850173 (ND Ill 2010) (American citizens do not forfeit their core constitutional rights when they leave the United States, even when their destination is a foreign war zone[T]he right of American citizens to be free from torture is a well established part of our constitutional fabric.) But as the court said in the latter case, the cases establish the importance of citizenship in circumstances in which federal agents outside the United States carry out constitutional violations (at 13).
+The position is different where non citizens are involved.
+In United States v Verdugo Urquidez, 494 US 259 (1990) it was held that the Fourth Amendment did not apply to the joint search by Mexican and United States authorities of a Mexican suspects home in Mexico while he was in custody in the United States.
+This is because the people means the American people.
+Rehnquist CJ said that aliens should not have extra territorial Fourth Amendment rights, because grave uncertainties would be created for the US employment of armed forces abroad: at 273.
+See also Rasul v Myers, 563 F 3d 527, 532 (DC Cir 2009) (British citizens detained at Guantanamo Bay); Re Iraq and Afghanistan Detainees Litigation, 479 F Supp 2d 85, 108 (DDC 2007) (alleged torture of Afghani and Iraqi citizens); Arar v Ashcroft, 585 F 3d 559 (2d Cir 2009) (no action against government officials allegedly responsible for aliens extraordinary rendition to Syria).
+But the application of constitutional protection to activities abroad does not mean that the conduct of military operations is justiciable.
+In the United States the conduct of military operations is so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference: Harisiades v Shaughnessy, 342 US 580, 589 (1952).
+See Arar v Ashcroft, 585 F 3d 559, 590 (2d Cir 2009)
+On this appeal the question arises in the context of the meaning and application of the expression within their jurisdiction.
+The expression jurisdiction is used in many senses in international law.
+The doctrine of jurisdiction in international law has given rise to an enormous literature, of which it is useful to mention, in particular, Mann, The Doctrine of Jurisdiction in International Law, in Studies in International Law (1973), p 1; Oppenheim, International Law, 8th ed Sir Hersch Lauterpacht, 1955, pp 235 et seq; Akehurst, Jurisdiction in International Law (1972 73) 46 BYIL 145; Meessen, Extraterritorial Jurisdiction in International Law (1996); Higgins, Themes and Theories: Selected Essays, Speeches and Writings in International Law, 2009, Vol 2, pp 799 et seq.
+Not every use of the expression jurisdiction in international law is co terminous with that in article 1.
+For example, a state may exercise jurisdiction over its nationals abroad in the sense that it may prescribe rules of law in relation to its nationals abroad: Restatement (Third), Foreign Relations Law of the United States, 1987, section 402; Oppenheim, International Law, 9th ed Jennings and Watts, 1992, vol 1, para 138; Higgins, ante, vol 2, p 802.
+But that does not mean that all United Kingdom nationals wherever they may be are within the jurisdiction of the United Kingdom for the purposes of article 1.
+Armed forces of the United Kingdom serving abroad are subject to military law and discipline, they owe allegiance to the Crown, and where they are stationed abroad with the consent of the local sovereign, the arrangements with that sovereign will normally provide for immunity (at least in certain respects) from the civil and criminal jurisdiction of the host state: for the immunity of United States armed forces in the United Kingdom see Littrell v United States of America (No 2) [1995] 1 WLR 82 (CA); Holland v Lampen Wolfe [2000] 1 WLR 1573 (HL).
+In that sense there can be no doubt that armed forces serving abroad are subject to the jurisdiction of the United Kingdom, or as Lord Bingham put it in R (Gentle) v Prime Minister [2008] UKHL 20, [2008] AC 1356, [8(3)], subject to the authority of the United Kingdom.
+The international practice is confirmed by CPA Order No 17, under which all coalition personnel were expressed to be subject to the exclusive jurisdiction of their Sending States(section 2(3)) and immune from legal process and arrest or detention (section 2(1), (3)).
+Nor is there any doubt that members of the armed forces have, apart from the Convention, rights to enforce the Crowns duties to them: Mulcahy v Ministry of Defence [1996] QB 732 (subject to a possible exception for active operations: Shaw Savill and Albion Co Ltd v Commonwealth (1940) 66 CLR 344 and cf Burmah Oil Co Ltd v Lord Advocate [1965] AC 75).
+The Crown Proceedings Act 1947, section 10 excluded armed forces from the benefit of remedies against the Crown, but its operation was suspended by the Crown Proceedings (Armed Forces) Act 1987, section 2 of which gave the Secretary of State for Defence the power (which has not yet been exercised) to revive section 10 of the 1947 Act.
+What is jurisdiction in international law? According to Oppenheim, International Law, 9th ed Jennings and Watts, 1992, vol 1, p 456: State jurisdiction concerns essentially the extent of each states right to regulate conduct or the consequences of events.
+In practice jurisdiction is not a single concept.
+A states jurisdiction may take various forms.
+Thus a state may regulate conduct by legislation; or it may, through its courts, regulate those differences which come before them, whether arising out of the civil or criminal law; or it may regulate conduct by taking executive or administrative action which impinges more directly on the course of events, as by enforcing its laws or the decisions of its courts.
+The extent of the states jurisdiction may differ in each of these contexts.
+The Restatement (Third), Foreign Relations Law of the United States (1987) vol 1, p 230, uses jurisdiction to mean the authority of states to prescribe their law, to subject persons and things to adjudication in their courts and other tribunals, and to enforce their law, both judicially and non judicially.
+These different aspects of jurisdiction are sometimes said to be curial or judicial jurisdiction, legislative jurisdiction, and enforcement jurisdiction.
+Curial jurisdiction is essentially concerned with the ability of courts to exercise jurisdiction in civil matters over foreigners.
+Legislative jurisdiction is about the ability of states to use their own laws to regulate or punish acts in foreign countries.
+The question in international law is whether states have a legitimate interest in, or sufficient connection with, acts committed abroad so as to justify the application of their laws to them.
+In the famous Lotus case (France v Turkey), (1927) PCIJ, Series A, No.10, p 4, the Permanent Court of International Justice said (at 19): Far from laying down a general prohibition to the effect that states may not extend the application of their laws . to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by
+prohibitive rules
+International controversies over the extra territorial application of criminal or penal laws, such as anti trust or securities laws, are about the limits of legislative jurisdiction: see Morrison v National Australia Bank Ltd, United States Supreme Court, June 24, 2010.
+That is no doubt why, as will appear below, the Strasbourg court referred in Bankovi v Belgium (2001) 11 BHRC 435, [59], in the context of the words within their jurisdiction in article 1 of the Convention to the bases of jurisdiction to prescribe criminal offences for conduct abroad.
+As for enforcement jurisdiction, in the Lotus case (France v Turkey), the Permanent Court said (at 18 19): Now the first and foremost restriction imposed by international law upon a state is that failing the existence of a permissive rule to the contrary it may not exercise its power in any form in the territory of another state.
+In this sense jurisdiction is certainly territorial; it cannot be exercised by a state outside its territory except by virtue of a permissive rule derived from international custom or from a convention.
+That is a statement about enforcement jurisdiction, namely the limits of the right of a state to act on the territory of another state or to take measures on its own territory which require compliance in another state.
+Thus a state cannot, without the consent of the territorial sovereign, perform official acts in a foreign state or carry out official investigations in the foreign state.
+The inability of a foreign state to claim, directly or indirectly, its taxes in England is sometimes put on the basis that it is an illegitimate extension of its territorial jurisdiction: see Government of India v Taylor [1955] AC 491.
+The issue on this part of the appeal
+On this part of the appeal the issue is whether the undoubted jurisdiction which states has over their armed forces abroad means that their soldiers are within their jurisdiction for the purposes of article 1 of the Convention.
+The obvious starting point is that the operation of the Convention is territorial, and that its extra territorial application is exceptional.
+The Strasbourg court has recognised few exceptions, and it is not easy to extract a common principled basis for them.
+The main questions which arise are (1) whether armed forces can be brought within article 1 simply on the basis that in international law they are subject to the jurisdiction of the state which they serve; or (2) whether they are within article 1 because of the authority and control which the state exercises over them; (3) whether they are within article 1 because there is a jurisdictional link between them and the state.
+In order that these questions may be considered it is necessary to consider Bankovi v Belgium (2001) 11 BHRC 435 and its antecedents, and some of the subsequent Strasbourg cases considered in Al Skeini, and finally cases decided in Strasbourg after Al Skeini.
+Early cases
+At the risk of repeating some of what has been said in other cases about the antecedents of Bankovi v Belgium (2001) 11 BHRC 435, it is important to consider what was decided by the Strasbourg court in Bankovi in December 2001 against the background of decisions of the Commission and the Court on the scope of jurisdiction under article 1 stretching over 35 years.
+In Soering v United Kingdom (1989) 11 EHRR 439, at [86], the Court, in plenary session, had referred to the limit on the reach of the Convention under article 1 as being notably territorial.
+One line of decisions suggested that a state would be responsible for acts of its officials (especially diplomatic and consular officials) performed abroad in performance of their duties to nationals: X v Germany (1965) 8 Yb ECHR 158 (Commission).
+Similar statements in Cyprus v Turkey (1975) 2 DR 125, at [8] and Hess v United Kingdom (1975) 2 DR 72 fall within this category also, and are not based, as they could have been (and, in the case of Cyprus, later were), on control of territory in Northern Cyprus in the former decision, or on Spandau prison being an extension of the territory of the occupying powers.
+It is likely that the emphasis on diplomats and consuls in the early decisions reflected the fiction of the extra territoriality of diplomatic premises.
+There is, however, no actual decision (as distinct from dicta) either of the Commission or of the Court which assimilates diplomatic or consular premises to the territory of the sending state.
+So also Cyprus v Turkey (1975) 2 DR 125, at [8] assumed an extended notion of territoriality in relation to ships and aircraft registered in a Convention state.
+Another line of Commission decisions expressed the thought that the expression within their jurisdiction was not equivalent to or limited to the national territory of the contracting state concerned, and extended to all persons under their actual authority and responsibility, whether that authority is exercised within their own territory or abroad : Cyprus v Turkey (1975) 2 DR 125, at [8].
+See also X & Y v Switzerland (1977) 2 DR 57; M v Denmark (1992) 73 DR 193.
+These strands, acts by officials affecting persons, or officials exercising authority over persons, were brought together in X v United Kingdom, (Application No 7547/76) (1977) 12 DR 73.
+This was a child abduction case in which a Jordanian married to a British woman took their daughter to Jordan.
+The complaint was that the British consulate in Amman had not done enough to obtain the custody of her daughter following a custody order by the English court.
+The Commission was satisfied that the consular authorities had done all that could be reasonably expected of them.
+The Commission said, on jurisdiction, that it was clear from the constant jurisprudence of the Commission that authorised agents of a state, including diplomatic or consular agents, brought other persons or property within the jurisdiction of that state to the extent that they exercised authority over such persons or property.
+Insofar as they affected such persons or property by their acts or omissions, the responsibility of the state was engaged.
+Therefore even though the alleged failure of the consular authorities to do all in their power to help the applicant occurred outside the territory of the United Kingdom, it was still within [the] jurisdiction within the meaning of article 1.
+It should be noted that this formulation by the Commission is inconsistent with the text of article 1, which is about persons within the jurisdiction, and not about acts or omissions within the jurisdiction.
+The decision of the Court in plenary session in Drozd and Janousek v France and Spain (1992) 14 EHRR 745 must be read against the background of the previous cases.
+French and Spanish judges acted as judges in Andorra which was ruled by two co princes, the President of the French Republic and the Bishop of Urgel (in Spain).
+The applicants were Spanish and Czech citizens, who had been convicted of armed robbery and complained that they had not had a fair trial.
+The Court agreed with the respondent states that the judges did not sit in their capacity as French or Spanish judges, and their judgments were not subject to supervision by the authorities of France or Spain.
+It does not seem to have been disputed by France and Spain that, if the judges had sat in their capacity as French or Spanish judges, the jurisdictional test of article 1 would have been satisfied.
+The way in which the Court put it was that France and Spain would be responsible because of acts of their authorities producing effects outside their own territory. (at [91], citing most of the cases mentioned above).
+See also Loizidou v Turkey (Preliminary Objections) (1995) 20 EHRR 99, at [62].
+The final strand in the authorities prior to Bankovi is represented by the notion that effective control of territory abroad is equivalent to jurisdiction over that territory.
+In Loizidou v Turkey (Preliminary Objections) (1995) 20 EHRR 99, the Court (reflecting Cyprus v Turkey (1975) 2 DR 125, at [8]) held (at [62]) that the responsibility of a Contracting Party may also arise when as a consequence of military action whether lawful or unlawful it exercises effective control of an area outside its national territory.
+The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration.
+The concept of control is also taken up in other Northern Cyprus cases: e.g. Loizidou v Turkey (Merits) (1996) 23 EHRR 513, at [52]; Cyprus v Turkey (2001) 35 EHRR 731, at [77].
+Prior to Bankovi, the Court had also declared admissible complaints against Turkey (a) arising out of operations of its armed forces in Northern Iraq which were alleged to have resulted in violations of the Convention, including the death and torture of some villagers (Issa v Turkey, Application No 31821/96, 30 May 2000, unreported); and (b) arising out of the arrest by Turkish security officers of the applicant, the leader of the PKK, at Nairobi airport with the consent of the Kenyan authorities, and his subsequent removal to, and trial in Turkey (calan v Turkey, (Application No 46221/99), 14 December 2000, unreported).
+In neither of these admissibility decisions was there any discussion of jurisdiction under article 1.
+Bankovi v Belgium
+The concessions by the respondent states
+The prior decisions go some way to explaining why the respondent states made a number of concessions in Bankovi, not all of which found their way into the reasoning of the Court.
+They accepted that (a) the exercise of jurisdiction involved the assertion or exercise of legal authority, actual or purported, over persons owing some form of allegiance to the state or who had been brought within that states control, and that the term jurisdiction generally entailed some form of structured relationship normally existing over a period of time (judgment of the Court at [36]); (b) the Court had applied that notion of jurisdiction to confirm that individuals affected by acts of a state outside its territory could be considered to fall within its jurisdiction because there was an exercise of some form of legal authority by the state over them (at [37]); (c) the arrest and detention of the applicants in Issa v Turkey and calan v Turkey constituted a classic exercise of such legal authority or jurisdiction over those persons by military forces on foreign soil (ibid).
+The issue
+The issue in Bankovi, stated in para [54] of the decision of the Grand Chamber by reference to the decisions in Drozd and the cases involving Northern Cyprus, was whether the fact that the acts of the respondent states were performed or had effects outside the territory of the contracting states meant that the applicants were capable of falling within the jurisdiction of the respondent states.
+The concept of jurisdiction in the Courts decision
+For present purposes, the relevant points which emerge from Bankovi are these: (1) the jurisdictional competence of a state is primarily territorial; (2) international law does not exclude a states exercise of jurisdiction extra territorially, but the bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are as a general rule defined and limited by the sovereign territorial rights of other states; (3) the competence of a state to exercise jurisdiction over its own nationals abroad is subordinate to the territorial competence of that state and other states; (4) a state may not exercise jurisdiction on the territory of another without the consent of the latter unless it is an occupying state, in which case it may exercise jurisdiction in certain respects; (5) article 1 of the Convention reflects the ordinary and essentially territorial notion of jurisdiction; (6) other bases of jurisdiction are exceptional and require special justification in the particular circumstances of each case; (7) article 1 is not to be treated as part of the living instruments provisions, and the travaux confirmed the ordinary meaning of article 1.
+It should be noted that the Court nowhere explains what it understands by the expression jurisdiction in the context of article 1.
+The reference in para [59] to extraterritorial jurisdiction as including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality is a mixture of two entirely different concepts of extra territoriality.
+The first (nationality, flag, diplomatic and consular relations) reflects the fiction of the extra territoriality of ships and aircraft and diplomatic and consular premises.
+The second (effect, protection, passive personality and universality) represents the generally accepted exceptions to the territorial nature of criminal jurisdiction, that is, the exceptions to the principle that a state cannot use its criminal courts to punish persons for acts committed abroad.
+The first aspect can be illustrated by the way it is put in the last edition of Oppenheim edited by Sir Hersch Lauterpacht, 8th ed (1955), pp 461, 793): In contradistinction to these real parts of State territory there are some things that are either in every respect or for some purposes treated as though they were territorial parts of a State.
+They are fictional and in a sense only parts of the territory.
+Thus men of war and other public vessels on the high seas as well as in foreign territorial waters are essentially in every point treated as though they were floating parts of their home State.
+The premises in which foreign diplomatic envoys have their official residence are in many respects treated as though they were parts of the home States of the envoys concerned.
+Again merchantmen on the high seas are in certain respects treated as though they were floating parts of the territory of the State under whose flag they legitimately sail.
+Extraterritoriality, in this as in every other case, is a fiction only, for diplomatic envoys are in reality not without, but within, the territories of the receiving States.
+The term extraterritoriality is nevertheless valuable because it demonstrates clearly the fact that envoys must, in most respects, be treated as though they were not within the territory of the receiving States.
+The so called extraterritoriality of envoys takes practical form in a body of privileges which must be severally discussed.
+The second aspect of jurisdiction, reflected in the Courts reference to effect, protection, passive personality and universality is that which has much exercised international lawyers (but which has nothing to do with the issue under article 1), namely the extent to which states can exercise criminal jurisdiction in respect of acts committed outside their national territory.
+In the Lotus case the Permanent Court said (at 20): Though it is true that in all systems of law the principle of the territorial character of criminal law is fundamental, it is equally true that all or nearly all these systems of law extend their action to offences committed outside the territory of the State which adopts them, and they do so in ways which vary from State to State.
+The territoriality of criminal law, therefore, is not an absolute principle of international law and by no means coincides with territorial sovereignty.
+Consequently it is well accepted that there are well established exceptions to the territorial principle, and they are reflected in the reference in Bankovi at [59] to effect (normally referred to as effects), protection, passive personality and universality.
+The exceptions normally articulated are these: first, the nationality principle by which a state has jurisdiction over crimes committed by its nationals abroad; second, the so called protective principle under which states claim jurisdiction over acts committed by aliens abroad which threaten the state; third, the passive personality basis of jurisdiction under which a state may exercise jurisdiction over crimes committed abroad by aliens if the victim is a national of the state claiming jurisdiction; fourth, the controversial effects doctrine where jurisdiction is taken over an offence which is committed abroad, but which has economic effects in the forum state (such as violations of anti trust laws or securities laws), and which is sometimes said to be an aspect of the so called objective territorial principle, jurisdiction over an offence committed outside the state but concluded or consummated within the territory; fifth, the principle of universal jurisdiction, the oldest example being jurisdiction to try pirates, and now frequently invoked in relation to jurisdiction over war crimes.
+See Jennings, Extraterritorial Jurisdiction and United States Anti Trust Laws (1957) 32 BYIL 146.
+It has to be said that neither Bankovi nor a case such as the present has anything to do with extra territorial jurisdiction in these two senses.
+The question here is whether armed forces serving abroad are within the jurisdiction of the contracting states in a quite different sense, namely whether the fact that they are subject to the military law and discipline of the United Kingdom, and generally not subject to the local law, results in their being within the jurisdiction of the United Kingdom for article 1 purposes.
+The exceptional cases
+The Court went out of its way in Bankovi to emphasise the exceptional nature of the cases in which a state could be responsible for acts or omissions outside its national territory.
+First, it expressed the view that article 1 of the Convention must be considered to reflect [the] ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case (at [61]).
+Second, it said (at [67]): In keeping with the essentially territorial notion of jurisdiction, the Court has accepted only in exceptional cases that acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of article 1 of the Convention.
+Third, it emphasised (at [71]): In sum, the case law of the Court demonstrates that its recognition of the exercise of extra territorial jurisdiction by a contracting state is
+exceptional
+The Courts treatment of the exceptional cases where acts of contracting states performed, or producing effects, outside their territories could constitute an exercise of jurisdiction within the meaning of article 1 may be summarised in this way.
+The Soering v United Kingdom line of cases is not concerned with the extra territorial exercise of jurisdiction, because liability is incurred in such cases by the action of a state concerning a person while he or she was on its territory and clearly within its jurisdiction: [68].
+The exceptions which the Court recognises are these.
+First, the responsibility of contracting states could in principle be engaged because of acts of their authorities which produced effects or were performed outside their own territory, at [69], citing the Drozd case.
+Second, the responsibility of a contracting state is capable of being engaged when as a consequence of military action (lawful or unlawful) it exercises effective control of an area outside its national territory as a consequence of military operation or through the consent, invitation or acquiescence of the Government of that territory, and exercises all or some of the public powers normally to be exercised by that Government: at [70], citing Loizidou v Turkey (Preliminary Objections) and Cyprus v Turkey (2001) 35 EHRR 731.
+These cases were explained on this basis that the respondent state, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government (at [71]).
+Third (reflecting the fictional extra territoriality of diplomatic and consular premises and of ships and aircraft) other recognised instances of the extra territorial exercise of jurisdiction by a state include cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that state and in these specific situations, customary international law and treaty provisions have recognised the extra territorial exercise of jurisdiction by the relevant state (at [73]).
+In applying these principles to the facts the Court rejected the suggestion that anyone adversely affected by an act imputable to a contracting state, wherever in the world that act may have been committed or its consequences felt, was thereby brought within the jurisdiction of that state for the purpose of article 1 of the Convention.
+The applicants had accepted that jurisdiction, and any consequent state Convention responsibility, would be limited in the circumstances to the commission and consequences of that particular act.
+But the Court was of the view that the wording of article 1 [did] not provide any support for the applicants suggestion that the positive obligation in article 1 to secure the rights and freedoms defined in Section I of this Convention can be divided and tailored in accordance with the particular circumstances of the extra territorial act in question (at [75]).
+In answer to the argument that failure to recognise the claim of the applicants would leave a vacuum in the Convention system, the Court said (at [80]): The Courts obligation, in this respect, is to have regard to the special character of the Convention as a constitutional instrument of European public order for the protection of individual human beings and its role, as set out in article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting Parties It is therefore difficult to contend that a failure to accept the extra territorial jurisdiction of the respondent States would fall foul of the Conventions ordre public objective, which itself underlines the essentially regional vocation of the Convention system In short, the Convention is a multi lateral treaty operating, subject to article 56 of the Convention, in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States.
+The Convention was not designed to be applied throughout the world, even in respect of the conduct of Contracting States.
+Accordingly, the desirability of avoiding a gap or vacuum in human rights protection has so far been relied on by the Court in favour of establishing jurisdiction only when the territory in question was one that, but for the specific circumstances, would normally be covered by the Convention.[Emphasis in original text].
+The Court said (at [80]) that Cyprus v Turkey (2001) 35 EHRR 731 related to an entirely different situation: the inhabitants of northern Cyprus would have found themselves excluded from the benefits of the Convention safeguards and system which they had previously enjoyed, by Turkeys effective control of the territory and by the accompanying inability of the Cypriot Government, as a contracting state, to fulfil the obligations it had undertaken under the Convention.
+The Court did not deal expressly with the applicability of the exception it had identified by reference to Drozd, namely that the responsibility of contracting states could in principle be engaged because of acts of their authorities which produced effects or were performed outside their own territory.
+But it did deal with the applicants reliance on the admissibility decisions in Issa v Turkey and calan v Turkey.
+In each of those cases the Court had held admissible complaints relating to Turkeys conduct in non contracting states, Iraq in the former case and Kenya in the latter case.
+All that the Court said about those cases was this (at [81]): It is true that the Court has declared both of these cases admissible and that they include certain complaints about alleged actions by Turkish agents outside Turkish territory.
+However, in neither of those cases was the issue of jurisdiction raised by the respondent Government or addressed in the admissibility decisions and in any event the merits of those cases remain to be decided.
+The conclusion of the Court (at [82]) was that there was no jurisdictional link between the persons who were victims of the act complained of and the respondent states.
+The subsequent decisions
+The exceptional nature of any liability for extra territorial acts or omissions articulated in Bankovi has been repeatedly quoted or re stated by the Court: calan v Turkey (2003) 37 EHRR 238, at [93]; Assanidze v Georgia (2004) 39 EHRR 653, at [137]; Ilacu v Moldova and Russia (2005) 40 EHRR 1030, at [314]; Issa v Turkey (2004) 41 EHRR 567, at [68]; Al Saadoon and Mufdhi v United Kingdom (admissibility) (2009) 49 EHRR SE 95, at [85]; Stephens v Malta (No 1)(2009) 50 EHRR 144, at [49]; Medvedyev v France, Grand Chamber, 29 March 2010, at [64].
+In particular the concept of jurisdiction based on effective control has been applied in Assanidze v Georgia and Ilacu v Moldova and Russia, ante.
+The decisions subsequent to Bankovi in Strasbourg up to the time of Al Skeini were fully discussed by the Divisional Court, the Court of Appeal, and the House of Lords, and it is not necessary to go over the same ground.
+It is useful only to consider the relevance of the decisions in calan v Turkey (2003) 37 EHRR 238; (2005) 41 EHRR 985 (Grand Chamber) and Issa v Turkey (2004) 41 EHRR 567, and of the decisions subsequent to Al Skeini in Markovic v Italy (2006) 44 EHRR 1045 (Grand Chamber); Al Saadoon and Mufdhi v United Kingdom (admissibility) (2009) 49 EHRR SE 95; and Medvedyev v France, Grand Chamber, 29 March 2010.
+Authority and control and State agents
+The decisions in calan v Turkey (2003) 37 EHRR 238; (2005) 41 EHRR 985 (Grand Chamber) and Issa v Turkey (2004) 41 EHRR 567, both of which were extensively discussed in Al Skeini, are relevant on this appeal because of what is said to be their support for the argument that armed forces abroad are subject to the jurisdiction of the sending state because they are under the authority and control of the sending state.
+calan v
+Turkey
+In calan v Turkey (2003) 37 EHRR 238; (2005) 41 EHRR 985 (Grand Chamber) the applicant was arrested by members of the Turkish security forces inside a Turkish aircraft in the international zone of Nairobi airport.
+His complaint related both to his treatment in Nairobi and subsequently in Turkey.
+As regards his treatment in Kenya, he complained under articles 3 and 5 about handcuffing and blindfolding, alleged sedation and unlawful arrest.
+There was also a complaint that the abduction overseas on account of his political opinions constituted inhuman or degrading treatment within the meaning of article 3.
+It was held that the complaints about the arrest in Kenya fell within article 1.
+In the first decision the Court said (at [93]): the applicant was arrested by members of the Turkish security forces inside an aircraft in the international zone of Nairobi Airport.
+Directly after he had been handed over by the Kenyan officials to the Turkish officials the applicant was under effective Turkish authority and was therefore brought within the jurisdiction of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory.
+The Court considers that the circumstances of the present case are distinguishable from those in the aforementioned Bankovi case, notably in that the applicant was physically forced to return to Turkey by Turkish officials and was subject to their authority and
+control following his arrest and return to Turkey
+The Grand Chamber said (at [91]): The Court notes that the applicant was arrested by members of the Turkish security forces inside an aircraft registered in Turkey in the international zone of Nairobi Airport.
+It is common ground that, directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was under effective Turkish authority and therefore within the jurisdiction of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory.
+It is true that the applicant was physically forced to return to Turkey by Turkish officials and was under their authority and control following his arrest and return to Turkey (see, in this respect, the aforementioned decisions in the cases of Illich Ramirez Snchez v France and Freda v Italy; and, by converse implication, the Bankovi v Belgium .
+There are four features about this decision which should be noted.
+First, the Turkish Government conceded that the case fell within article 1.
+Second, it involved, at least in part, acts committed on a Turkish aircraft.
+Third, the Turkish activities were authorised by Kenya.
+Fourth (as Lord Brown pointed out in Al Skeini at [118] [119]), it involved the forcible removal by state A from state B with state Bs consent of a person wanted for trial in state A. Cf Illich Ramirez Snchez v France (Application No 28780/95) (1996) 86 A DR 155 (Commission); see also Lpez Burgos v Uruguay (1981) 68 ILR 29 and Celiberti de Casariego v Uruguay (1981) 68 ILR 41(UN Human Rights Committee).
+In Stephens v Malta (No 1) (2009) 50 EHRR 144, at [52], [54], in a section dealing with jurisdiction under article 1, it was held that the arrest of a British citizen in Spain pursuant to an unlawful request for extradition by Malta was attributable to, and engaged the responsibility of, Malta, but the Court did not explain why the applicant was within the jurisdiction of Malta.
+It is entirely consistent with common sense for the Convention to apply (even to that part of the operation which occurs abroad) when agents of a state go abroad and forcibly remove one of its citizens for trial at home.
+The decision is not authority for a generalised basis of jurisdiction based on authority and control by state agents.
+Issa v Turkey
+Issa v Turkey (2004) 41 EHRR 567 has been subject to close analysis and criticism at all levels in Al Skeini.
+It arose out of an incursion by Turkish troops into Northern Iraq in 1995 to pursue and eliminate Turkish terrorists who were seeking shelter in Iraq.
+The applicants were Iraqi villagers who alleged that in contravention of their Convention rights and those of their relatives, Turkish troops had (among other things) detained, tortured, and killed villagers and caused distress to others.
+The Court decided that the applicants relatives did not come within the jurisdiction of Turkey within the meaning of article 1.
+Citing Loizidou v Turkey (Merits) (1996) 23 EHRR 513, at [52], the Court re stated (but for the first time in relation to territory outside the Convention states) that the responsibility of a state could be engaged where as a consequence of military action, whether lawful or unlawful, the state in practice exercised effective control of an area situated outside its national territory: [68] [69].
+That deals with jurisdiction based on control of territory, and not jurisdiction based on authority and control of the victim by state agents outside the territory of the state.
+In a much discussed passage, the Court said (at [71]) Moreover, a State may also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former States authority and control through its agents operating whether lawfully or unlawfully in the latter State Accountability in such situations stems from the fact that Article 1 of the Convention cannot be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory (ibid).
+Consequently, jurisdiction could have been based on either effective control of the area or (although the formulation is by no means clear) on the activities of state agents against local inhabitants.
+But the applicants were not within the jurisdiction of Turkey because Turkey did not exercise effective control over the relevant area, and also because it had not been proved that Turkish forces had conducted operations in the area in question: [75], [81].
+It is implicit in the reasoning in this decision that there would have been jurisdiction if the Turkish troops had been guilty of atrocities even without overall control of the area.
+If that is so, it is inconsistent with Bankovi.
+It is impossible to see how an attack on villagers in a cross border incursion into a non contracting state could make the villagers within the jurisdiction of Turkey, when a bombing raid on Belgrade did not make the victims within the jurisdiction of the NATO States involved.
+The notion of authority and control through State agents operating abroad derives from the report of the Inter American Commission of Human Rights in Coard v United States (Report No 109/99, 29 September 1999) (1999) 9 BHRC 150, which was cited by the Strasbourg court in Issa v Turkey at [71] in support of that notion.
+The Commission was examining complaints about the applicants detention and treatment by United States forces in the military operation in Grenada.
+The American Declaration on the Rights and Duties of Man 1948 contains no express provision on its territorial limits.
+The Commission said: While the extraterritorial application of the Declaration has not been placed at issue by the parties Given that individual rights inhere simply by virtue of a persons humanity, each American state is obliged to uphold the protected rights of any person subject to its jurisdiction.
+While this most commonly refers to persons within a states territory, it may, under given circumstances, refer to conduct with an extraterritorial locus where the person concerned is present in the territory of one state, but subject to the control of another state usually through the acts of the latters agents abroad.
+In principle, the inquiry turns not on the presumed victims nationality or presence within a particular geographic area, but on whether, under the specific circumstances, the state observed the rights of a person subject to its authority and control.
+The Coard report was referred to in Bankovi at [23] and [78], but the Grand Chamber (at [78]) specifically indicated that it derived no assistance from it because the American Declaration on the Rights and Duties of Man 1948 contained no explicit limitation of jurisdiction.
+Jurisdiction on the basis of authority and control (especially outside the Convention states) as a separate head was firmly rejected by the House of Lords in Al Skeini: see especially Lord Brown at [116] [127], and Lord Rodger at [73] [77]; and see also Rix LJ speaking for the Administrative Court at [216], and Brooke LJ in the Court of Appeal at [103].
+Not only is there no firm basis in authority for the notion of authority and control as a basis of jurisdiction under article 1, Issa is also inconsistent with the notion of the regional nature of the Convention.
+As Lord Rodger said in Al Skeini (at [78]): The essentially regional nature of the Convention is relevant to the way that the court operates.
+It has judges elected from all the contracting states, not from anywhere else.
+The judges purport to interpret and apply the various rights in the Convention in accordance with what they conceive to be developments in prevailing attitudes in the contracting states.
+This is obvious from the court's jurisprudence on such matters as the death penalty, sex discrimination, homosexuality and transsexuals.
+The result is a body of law which may reflect the values of the contracting states, but which most certainly does not reflect those in many other parts of the world.
+So the idea that the United Kingdom was obliged to secure observance of all the rights and freedoms as interpreted by the European Court in the utterly different society of southern Iraq is manifestly absurd.
+Hence, as noted in Bankovi, 11 BHRC 435, 453 454, para 80, the court had so far recognised jurisdiction based on effective control only in the case of territory which would normally be covered by the Convention.
+If it went further, the court would run the risk not only of colliding with the jurisdiction of other human rights bodies but of being accused of human rights imperialism.
+See also Mactavish J in the Federal Court of Canada: Amnesty International Canada v Canada (Chief of Defence Staff), 2008 FC 336, [2008] FCR 546, [235].
+Medvedyev v France
+In Medvedyev v France, Grand Chamber, 29 March 2010, the applicants alleged that they had been arbitrarily deprived of their liberty contrary to article 5(1) following the boarding of the ship on which they were crewmen by French authorities and complained that they had not been brought promptly before a judge or other officer authorised by law to exercise judicial power.
+The ship was registered in Cambodia.
+Cambodia had given France authorisation to intercept the ship.
+The Court held unanimously (although it was divided on the merits of the claim) that because France exercised full and exclusive control over the ship and its crew, at least de facto, from the time of its interception, in a continuous and uninterrupted manner until they were tried in France, the applicants were effectively within Frances jurisdiction for the purposes of article 1: at [67].
+This case bears some resemblance to calan v Turkey (2003) 37 EHRR 238, except that the aircraft in calan was registered in Turkey, the respondent state, whereas the ship in Medvedyev v France was registered in Cambodia, and the applicant in calan had the nationality of the respondent state, whereas the applicants in Medvedyev had a variety of non French nationalities, Ukrainian, Romanian, Greek and Chilean.
+The differences are not crucial, since although an aircraft is for some purposes regarded as part of the territory of the country of registration, while it is in an airport it is no sense exempt from the criminal and public law of the territorial state, and non nationals within the jurisdiction are equally entitled to the protection of Convention rights.
+Al Saadoon and Mufdhi v United Kingdom (admissibility)
+Nor is Al Saadoon and Mufdhi v United Kingdom (admissibility) (2009) 49 EHRR SE 95 authority for any concept of extra territoriality going beyond Bankovi as recognised in Al Skeini.
+The applicants complained that their transfer by British forces to the custody of the Iraqi High Tribunal exposed them to a real risk of the death penalty in breach of articles 2 and 3.
+The United Kingdoms argument on jurisdiction was that the transfer of the applicants into the custody of the Iraqi authorities took place in circumstances where the United Kingdom forces had the power to detain Iraqi nationals only at the request of the Iraqi courts; the United Kingdom forces were not to retain any power to detain Iraqi nationals after 31 December 2008 and, within hours of the actual transfer, the base would have ceased to be inviolable and the Iraqi authorities would have had the right to come physically to the base where the applicants were detained and remove them.
+Consequently, it was argued, the United Kingdom was not exercising any public powers through the effective control of any part of the territory or the inhabitants of Iraq,
+The Court recognised that, during the first months of the detention of the applicants, the United Kingdom was an occupying power in Iraq.
+The United Kingdom exercised control and authority over the individuals detained in the British run detention facilities initially solely as a result of the use of military force.
+Subsequently its de facto control over the premises was reflected by the CPA order which provided that all premises used by the multi national force should be inviolable and subject to the exclusive control and authority of the multi national force: [87].
+Given the total and exclusive de facto and subsequently also de jure control exercised by United Kingdom authorities over the premises, the individuals detained there, including the applicants, were within the United Kingdoms jurisdiction: Hess v United Kingdom.
+That conclusion, the Court said (at [88]), was consistent with the decision of the House of Lords in Al Skeini and the position adopted by the United Kingdom in that case before the Court of Appeal and the House of Lords (where it had been conceded that the jurisdiction under article 1 extended to a military prison occupied and controlled by the United Kingdom).
+The Court referred to Rasul v Bush, 542 US 466 (2004) where the United States Supreme Court decided (6 3) that United States courts had jurisdiction to consider challenges to the legality of the detention of foreign nationals incarcerated in Guantanamo Bay, since by the express terms of the agreements with Cuba, the United States exercised complete jurisdiction and control over the Guantanamo Bay.
+See also Al Saadoon and Mufdhi v United Kingdom (Merits), 2 March 2010, with many references to the United Kingdoms jurisdiction over the applicants: [137], [140], [164], [165].
+The decisions in Al Saadoon are consistent with, and do not take the matter any further than, Al Skeini.
+The concept of a jurisdictional link and Markovic v Italy
+The conclusion of the Court in Bankovi (at [82]) was that there was no jurisdictional link between the persons who were victims of the act complained of and the respondent states.
+There was no elucidation of that expression, and the only other decision of the Strasbourg court in the article 1 context which makes use of the notion of jurisdictional link is Markovic v Italy (2006) 44 EHRR 1045 (Grand Chamber), in which the Court said that once a person brings a civil action in the courts or tribunals of a state, there indisputably exists, without prejudice to the outcome of the proceedings, a jurisdictional link for the purposes of article 1 ([54]).
+Markovic v Italy is a decision which shows that the victim of a breach of the Convention need not necessarily be present in the contracting state.
+The applicants were nationals of Serbia and Montenegro, who had brought claims in the Italian courts for compensation for damage caused by an airstrike by NATO forces.
+The Italian Court of Cassation ruled that the Italian courts had no jurisdiction because the claim was a political one.
+The applicants claimed that this was a refusal to grant them access to a court in breach of article 6.
+The Court held that there was no breach of article 6 because the inability to sue the state was not the result of an immunity but of the principles governing the substantive right of action in domestic law.
+The Court held that the applicants were within the jurisdiction of Italy for the purposes of article 1.
+The Italian and British Governments argued that there was no jurisdiction for the purposes of article 1 because (for reasons which are hard to follow) the underlying claim related to NATO airstrikes outside the Convention countries.
+But, apart from that, they both accepted that a claimant from outside the contracting states who brings a claim in the courts of the contracting state is within its jurisdiction for article 1 purposes.
+The Italian Government accepted that the applicants had brought themselves within the ambit of the states jurisdiction by lodging a claim with the authorities: see [38].
+The British Government seemed (somewhat artificially) to treat the bringing of the claim as a notional entry into the territory in order to bring proceedings: see [48].
+As regards jurisdiction for the purposes of article 1, the Court three times used the expression jurisdictional link in these passages: 54.
+Even though the extraterritorial nature of the events alleged to have been at the origin of an action may have an effect on the applicability of Article 6 and the final outcome of the proceedings, it cannot under any circumstances affect the jurisdiction ratione loci and ratione personae of the State concerned.
+If civil proceedings are brought in the domestic courts, the State is required by Article 1 of the Convention to secure in those proceedings respect for the rights protected by Article 6.
+The Court considers that once a person brings a civil action in the courts or tribunals of a State, there indisputably exists, without prejudice to the outcome of the proceedings, a jurisdictional link for the purposes of Article 1. 55.
+The Court notes that the applicants in the instant case brought an action in the Italian civil courts.
+Consequently, it finds that a jurisdictional link existed between them and the Italian State.
+The expression jurisdictional link in the conclusion in Bankovi (at [82]) is plainly not intended to state or represent a separate and independent test of jurisdiction, and the same must be so of the passages in Markovic v Italy.
+Consequently, neither of those decisions suggests that there is a separate free standing head of jurisdiction based on a jurisdictional link, and (contrary to the respondents position on this appeal) there is nothing in the opinion of Lord Rodger in Al Skeini which supports such a suggestion.
+He said (at [64]) It is important therefore to recognise that, when considering the question of jurisdiction under the Convention, the focus has shifted to the victim or, more precisely, to the link between the victim and the contracting state [F]or the purposes of deciding whether the Convention applies outside the territory of the United Kingdom, the key question is whether the deceased were linked to the United Kingdom when they were killed.
+However reprehensible, however contrary to any common understanding of respect for human rights, the alleged conduct of the British forces might have been, it had no legal consequences under the Convention, unless there was that link and the deceased were within the jurisdiction of the United Kingdom at the time.
+For, only then would the United Kingdom have owed them any obligation in international law to secure their rights under article 2 of the Convention and only then would their relatives have had any rights under the 1998 Act.
+All that Lord Rodger was saying was that there must be a relevant link, not that a link, or any link, is a sufficient basis for the existence of jurisdiction under article 1.
+It should be added in relation to Markovic v Italy that it makes complete sense for the Convention to apply to parties to litigation in contracting states irrespective of where they are.
+It could not be seriously suggested, for example, that a Japanese defendant in English proceedings who is served out of the jurisdiction is not entitled to article 6 rights.
+In Lubbe v Cape plc [2000] 1 WLR 1545 the South African asbestosis victims suing in England submitted that to stay the proceedings in favour of the South African forum would violate their article 6 rights.
+A stay was refused on the non Convention ground that, because of the lack of funding and legal representation in South Africa, they would be denied a fair trial on terms of equality with the defendant.
+Lord Bingham said (at p 1561) that article 6 did not support any conclusion which was not already reached on application of the stay principles Spiliada Maritime Corpn v Cansulex Ltd [1987] AC 460.
+There was no suggestion, nor could there have been, that the claimants could not rely on article 6 because they were South Africans without any connection with the United Kingdom.
+In Bankovi the Court said [75] that the obligation in article 1 could not be divided and tailored in accordance with the particular circumstances of the extra territorial act in question, and the Court has said that in territory which is subject to the effective control of a contracting state the obligation of the State is to secure the entire range of substantive Convention rights Bankovi at [70], citing Cyprus v Turkey (2001) 35 EHRR 731 at [77].
+But cases such as Markovic v Italy suggest that some qualification is necessary to the principle of indivisibility of Convention rights, and that there may be cases in which a person may be within the jurisdiction of a contracting state for limited purposes only.
+Another possible example is suggested by Carson v United Kingdom, Grand Chamber, 16 March 2010 (in which there was no issue under article 1).
+The applicants were persons who had worked in the United Kingdom and paid national insurance contributions and then emigrated to South Africa, Canada or Australia.
+State pensions to persons abroad were not up rated to take account of inflation with the result that they received less (far less in some cases).
+They failed in their claim under article 14 of the Convention and article 1 of the First Protocol, but rightly it was never suggested that because they were permanently abroad they were not within the jurisdiction of the United Kingdom for article 1 purposes in relation to interference with property situate in the United Kingdom (as the pension rights were).
+Consequently there may be cases in which persons abroad may not be entitled to the whole package of Convention rights.
+Conclusions
+Bankovi made it clear that article 1 was not to be interpreted as a living instrument in accordance with changing conditions: [64] [65].
+It is hardly conceivable that in 1950 the framers of the Convention would have intended the Convention to apply to the armed forces of Council of Europe states engaged in operations in the Middle East or elsewhere outside the contracting states.
+Even the limited exceptions to territoriality recognised by the Strasbourg court were plainly not contemplated in the drafting process.
+The original draft prepared by the Committee of the Consultative Assembly of the Council of Europe on legal and administrative questions referred to all persons residing within their territories.
+Following a suggestion that residing within be replaced by living in, the Expert Intergovernmental Committee decided instead on persons within their jurisdiction.
+The reason was that the term residing might be considered too restrictive, and there were good grounds for extending the benefits of the Convention to all persons in the territories of the signatory states, even those who could not be considered as residing there in the legal sense of the word: Collected Edition of the Travaux Prparatoires of the European Convention on Human Rights, vol III, p 260.
+Apart from a comment by M Rolin, the eminent Belgian representative to the Consultative Assembly, that the protections would extend to all individuals of whatever nationality, who on the territory of any one of the states, might have had reason to complain that their rights were violated, article 1 did not give rise to any further discussion on this aspect and that text was adopted by the Consultative Assembly on 25 August 1950 without further amendment: Collected Edition, vol VI, pp 132, 148.
+See Bankovi at [19] [21] and also Lawson, Life After Bankovic: On the Extraterritorial Application of the European Convention on Human Rights, in Extraterritorial Application of Human Rights Treaties, ed Coomans and Kamminga, 2004, 83, at 89 90.
+There is nothing in the drafting history to give the slightest credence to the proposition that the Convention was to apply to the relations of the state with its armed forces abroad.
+It is noteworthy that, writing in the same year, Professor Hersch Lauterpacht (as he then was) produced a draft of the International Bill of the Rights of Man which provided (article 18): The obligations of this Bill of Rights shall be binding upon States in relation both to their metropolitan territory and to any other territory under their control and jurisdiction.
+See Lauterpacht, International Law and Human Rights, 1950, p 317.
+Bankovi (as applied in Al Skeini) confirms that article 1 reflects the territorial notion of jurisdiction, and that other bases of jurisdiction are exceptional and require special justification.
+In practice the exceptions recognised by the Court have either consisted of (1) territorial jurisdiction by a state over the territory of another contracting state; (2) extensions of territorial jurisdiction by analogy; and (3) commonsense extensions of the notion of jurisdiction to fit cases which plainly should be within the scope of the Convention.
+The Northern Cyprus cases such as Loizidou v Turkey (Merits) and Cyprus v Turkey, and also Ilacu v Moldova and Russia and Assanidze v Georgia are all illustrations of the extension or application of territoriality to cases of effective control (or lack of control) by contracting states of Council of Europe territory.
+The extension of the Convention to military bases and hospitals (ultimately based on concession by the Secretary of State) in Al Skeini and Al Saadoon and Mufdhi v United Kingdom (admissibility) is consistent with the treatment in dicta of the Commission and the Court of fixed premises abroad as territorial extensions of the state.
+If the judges in Drozd v France and Spain had been acting as French or Spanish judges commonsense would have recognised them as extensions of the state judiciary acting abroad.
+So also in cases such as calan v Turkey and Medvedyev v France, where a states officials detain a person abroad for trial in its territory, it would be odd if there could be no complaint under the Convention in respect of the acts which took place outside the territory.
+Similarly, the application of article 6 rights to foreign claimants in Markovic v Italy makes complete sense: it would be a travesty of the Convention to deny them the right to access to a court because they were outside the Convention states.
+This case comes within none of the exceptions recognised by the Strasbourg court, and there is no basis in its case law, or in principle, for the proposition that the jurisdiction which states undoubtedly have over their armed forces abroad both in national law and international law means that they are within their jurisdiction for the purposes of article 1.
+For the reasons given in the preceding sections of this judgment, jurisdiction cannot be established simply on the basis that the United Kingdoms armed forces abroad are under the authority and control of the United Kingdom, or that there is a jurisdictional link between the United Kingdom and those armed forces.
+To the extent that Issa v Turkey states a principle of jurisdiction based solely on authority and control by state agents over individuals abroad, it is inconsistent with Bankovi, and with Al Skeini, where it was comprehensively criticised by the House of Lords.
+Nor is there anything in Markovic v Italy or in Lord Rodgers opinion in Al Skeini to support a jurisdictional link as a free standing basis for jurisdiction under article 1.
+Nor are there policy grounds for extending the scope of the Convention to armed forces abroad.
+On the contrary, to extend the Convention in this way would ultimately involve the courts in issues relating to the conduct of armed hostilities which are essentially non justiciable.
+I would therefore allow the appeal on the first issue.
+On the second issue, I agree with the judgment of Lord Phillips and would dismiss the appeal.
+LORD KERR
+Article 1 of the European Convention on Human Rights and Fundamental Freedoms provides that the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.
+The first issue in this appeal is concerned with the question of what is meant by the phrase, within their jurisdiction.
+I have read the judgment of Lord Mance and am in complete agreement with what he has said on the first issue.
+For the reasons that he has given, I too would dismiss the appeal on the first ground.
+The first issue
+It has been accepted in a series of decisions, both domestic and European, that the primary and essential basis for jurisdiction under article 1 is territorial.
+It has also been accepted that this important principle is subject to exceptions.
+A central issue on the first ground of appeal is whether the admissible exceptions are confined to those specific examples that have been expressly recognised by the decisions in this field, particularly those reached in Strasbourg, or whether further exceptions may be recognised by the application of principles already established by the European Court of Human Rights.
+In R (Gentle) v Prime Minister [2008] UKHL 20; [2008] AC 1356, Lord Bingham clearly contemplated that any exceptions to or extensions of the principle of territoriality should be specific and limited see para 8(3) of his opinion.
+That case of course involved a claim that the lawfulness of the war in Iraq should be investigated in order to test whether the United Kingdom had fulfilled what were said to be its article 2 obligations to soldiers who were exposed to the risk of death in that war.
+It was not concerned with the question that arises here whether a soldier who is within the control of the state, in the form of the army authorities, remains within the jurisdiction of the state for the purposes of article 1 of the Convention when he is outside the states national territory.
+As Lord Mance has pointed out, Lord Bingham outlined three reasons that article 2 had never been held to apply to the process of deciding on the lawfulness of a resort to arms.
+The first was that the lawfulness of military action has no immediate bearing on the risk of fatalities.
+The second was that the draftsmen of the European Convention had not envisaged that it could provide a suitable framework or machinery for resolving questions about the resort to war.
+The final reason related to the territoriality issue.
+On this point, Lord Bingham said: Subject to limited exceptions and specific extensions, the application of the Convention is territorial: the rights and freedoms are ordinarily to be secured to those within the borders of the state and not outside.
+Here, the deaths of Fusilier Gentle and Trooper Clarke occurred in Iraq and although they were subject to the authority of the defendants they were clearly not within the jurisdiction of the UK as that expression in the Convention has been interpreted: R (Al Skeini) v Secretary of State for Defence [2008] AC 153, paras 79, 129.
+The Al Skeini case involved the deaths of six Iraqi civilians at the hands of British troops.
+Five of the deceased were shot in the course of security operations; the sixth, Mr Mousa, died following gross ill treatment while in custody in a UK military detention facility.
+The appellants, who were relatives of the deceased, asked the Secretary of State to hold a public inquiry into their relatives' deaths.
+The Secretary of State indicated that he would not hold such an inquiry.
+The appellants sought judicial review of that decision.
+In order to promote that application the appellants had to establish (among other things) that their complaint fell within the scope of ECHR and that a Convention right had been violated.
+The violation alleged by the appellants consisted primarily of a failure to investigate, as required by article 2, a violent death alleged to have been caused by agents of the state.
+The House of Lords held that the Convention operated in an essentially regional context, most notably in the legal space of the contracting states (ie within the area of the Council of Europe countries).
+The jurisdiction under article 1 was primarily territorial.
+The House of Lords recognised, however, that exceptions to that principle existed.
+These included circumstances where the state had effective control of a foreign territory and its inhabitants through military occupation or by the consent, invitation or acquiescence of the government of that territory and it exercised all or some of the public powers that would normally have been exercised by the local government.
+This was the context in which the observations in paras 79 and 129 of Al Skeini (on which Lord Bingham relied in Gentle) were made.
+The statements of Lord Rodger in para 79 of Al Skeini were based largely on his consideration of the decision of the European Court of Human Rights in Bankovic v Belgium (2001) 11 BHRC 435.
+That case has been extensively discussed in the judgment of Lord Phillips and it is therefore unnecessary for me to rehearse its details.
+It should be noted, however, that in para 80 the court observed that Strasbourg had so far recognised jurisdiction based on effective control only in the case of territory which would normally be covered by the Convention.
+From this one can safely assume that it was not contemplated that the exceptions would be confined solely to this situation and, indeed, further extensions to the exceptional category have been recognised in later decisions of ECtHR.
+The observation in para 80 of Bankovic provided the backdrop for what Lord Rodger said at para 79 of Al Skeini: The essentially regional nature of the Convention has a bearing on another aspect of the decision in Bankovic v Belgium (2001) 11 BHRC 435.
+In the circumstances of that case the respondent states were plainly in no position to secure to everyone in the RTS station or even in Belgrade all the rights and freedoms defined in Section I of the Convention.
+So the applicants had to argue that it was enough that the respondents were in a position to secure the victims rights under articles 2, 10 and 13 of the Convention.
+In effect, the applicants were arguing that it was not an answer to say that, because a state was unable to guarantee everything, it was required to guarantee nothingto adopt the words of Sedley LJ, [2007] QB 140, 300, para 197.
+The European Court quite specifically rejected that line of argument.
+The court held, (2001) 11 BHRC 435, 452, para 75, that the obligation in article 1 could not be divided and tailored in accordance with the particular circumstances of the extra territorial act in question.
+In other words, the whole package of rights applies and must be secured where a contracting state has jurisdiction.
+This merely reflects the normal understanding that a contracting state cannot pick and choose among the rights in the Convention: it must secure them all to everyone within its jurisdiction.
+If that is so, then it suggests that the obligation under art 1 can arise only where the contracting state has such effective control of the territory of another state that it could secure to everyone in the territory all the rights and freedoms in Section I of the Convention.
+It is important, I believe, to note that these comments were made in the context of jurisdiction based on territorial control.
+This is clear from para 75 of Bankovic, on which they are founded.
+But the present case is not one of territorial control.
+It is, rather, a case of control of personnel.
+Soldiers serving in Iraq were under the complete control of the United Kingdom authorities.
+They were subject to UK law.
+They were not amenable to the law of Iraq.
+The only legal system to which they were answerable or to which they might have recourse was that of the United Kingdom.
+In these circumstances, one may ask, if they were not within the jurisdiction of the UK, in whose jurisdiction were they? The answer that the appellant impliedly gives to this question is that the soldiers were within the jurisdiction of the UK for all purposes except for those of article 1 of the Convention but that response merely prompts the further question, why and, for reasons that I shall touch on below, to that second query I can find no satisfactory reply.
+Para 129 of Al Skeini (the other passage on which Lord Bingham relied in Gentle) is equally concerned with the question of territorial control.
+There Lord Brown said: except where a state really does have effective control of territory, it cannot hope to secure Convention rights within that territory and, unless it is within the area of the Council of Europe, it is unlikely in any event to find certain of the Convention rights it is bound to secure reconcilable with the customs of the resident population.
+Indeed it goes further than that.
+During the period in question here it is common ground that the UK was an occupying power in southern Iraq and bound as such by Geneva IV and by the Hague Regulations.
+Article 43 of the Hague Regulations provides that the occupant shall take all the measures in his power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.
+The appellants argue that occupation within the meaning of the Hague Regulations necessarily involves the occupant having effective control of the area and so being responsible for securing there all Convention rights and freedoms.
+So far as this being the case, however, the occupants' obligation is to respect the laws in force, not to introduce laws and the means to enforce them (for example, courts and a justice system) such as to satisfy the requirements of the Convention.
+Often (for example where Sharia law is in force) Convention rights would clearly be incompatible with the laws of the territory occupied.
+It is immediately evident that Lord Brown was discussing the nature and degree of control that was required before the territorial control exception could arise.
+The principal message as it seems to me to emerge from this passage is that the extent of the occupants actual control over the territory in question was very far from complete and therefore entirely incompatible with a capacity to enforce compliance with the Convention.
+On that account, the extra territorial exception could not be held to apply.
+When one approaches the matter from the perspective of power over military personnel, however, the level of control of the UK occupying forces is of an altogether different order from that which they could exert over the territory.
+The control that the UK had over Private Smith was as complete as it is possible in todays world to be.
+Moreover, for the reasons given by Lord Mance in paras 185 188 of his judgment, no other agency or state was entitled to or could exercise any authority over him.
+In plain terms, he did not come within any legal order or jurisdiction other than that of the United Kingdom.
+I therefore respectfully agree with Lord Mance that Lord Binghams statement in Gentle that the soldiers, although subject to the authority of the United Kingdom government, were clearly not within the jurisdiction of the UK must be treated with some reservation.
+Neither Lord Rodger nor Lord Brown (in the paragraphs of their opinions in Al Skeini that Lord Bingham relied on) had addressed the question whether serving soldiers came within the states jurisdiction for the purposes of article 1 of the Convention.
+Although a number of other members of the House of Lords in Gentle agreed in general terms with Lord Bingham, like Lord Mance, I doubt that his statement that the soldiers were not within the jurisdiction of the UK forms part of the ratio decidendi of that case.
+Even if it does, in light of the much fuller argument that this court has received on the topic than was presented to the House of Lords in Gentle, it is right that the matter should be considered again.
+Lord Brown discussed in Al Skeini the exceptions that had been already identified to the strict territorial basis for jurisdiction and Lord Mance has analysed these in paras 172 to 179 of his judgment.
+I agree with his analysis and with his conclusion that underpinning each of the exceptions is the exercise by a state in a country other than its national territory of power over individuals by the consent, invitation or acquiescence of the foreign state.
+The exclusion of extra territorial jurisdiction of one state in the territory of another rests primarily on the sovereign territorial rights of the latter state.
+As the court in Bankovic said, a States competence to exercise jurisdiction over its own nationals abroad is subordinate to that States and other States territorial competence para 60.
+Where, however, a state yields authority to a foreign state to exercise power in its sovereign territory, this principle does not apply.
+Likewise, if the sovereignty of the original state is ousted by an occupying force, the occupiers jurisdiction replaces that of the original state.
+In the present case both these situations so far as they involved UK military personnel tend to blend into each other.
+The UK was certainly permitted to exercise power over its soldiers, although this could not be said to be a permission granted by the state having original sovereignty over Iraq since that states sovereignty had been ousted by the invading forces.
+In so far as the UKs authority to exercise power over its own forces depended on the grant of permission, however, that was certainly constituted by CPA Order No 17 and Security Council Resolution No 1483.
+For the reasons given by Lord Mance in paras 184 to 186 of his judgment, I also consider that the UK exercised exclusive jurisdiction over its forces by reason of its being an occupying power.
+The situation can be described simply in the following way: the United Kingdom brought its soldiers into Iraq; it not only asserted complete authority over them while they remained there, it explicitly excluded the exercise of authority over those soldiers by any other agency or state; and it has always been clear that soldiers remain subject to the laws of the UK during their service abroad.
+In those circumstances it would be, to my mind, wholly anomalous to say that soldiers did not remain within the jurisdiction of the UK while serving in Iraq especially since it has been accepted in Al Skeini and not disputed by the appellant in the present case that all persons while on premises under the control of the army are within the UKs jurisdiction for the purposes of article 1 of the Convention.
+In Bankovic there were no fewer than 17 respondent states: Belgium, the Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey and the United Kingdom.
+It is interesting and significant that all seventeen subscribed to an argument described in this way in para 36 of the courts judgment: As to the precise meaning of 'jurisdiction', [the respondent governments] suggest that it should be interpreted in accordance with the ordinary and well established meaning of that term in public international law.
+The exercise of 'jurisdiction' therefore involves the assertion or exercise of legal authority, actual or purported, over persons owing some form of allegiance to that state or who have been brought within that state's control.
+They also suggest that the term 'jurisdiction' generally entails some form of structured relationship normally existing over a period of time.
+Of course, most soldiers serving on behalf of a member state in a foreign country would come clearly within the first of these formulations since they are subject to the legal authority of the government of their native country and they owe allegiance to that state.
+The court in Bankovic did not comment adversely on the argument that a states exercise abroad of legal authority over persons owing allegiance to that state would satisfy the requirements of article 1.
+Indeed, the courts treatment of the arguments of the parties is not at all inconsistent with that submission.
+It is to be noted that the final conclusions expressed by the court in paras 67 to 71 are preceded by the cross heading Extra territorial acts recognised as constituting an exercise of jurisdiction (emphasis added).
+By making its soldiers subject to its sole authority while abroad a state is not engaging in an extra territorial act so much as creating a state of affairs.
+There may not be much in this point but it is, I think, worth remarking that the focus of the court in Bankovic was whether the actions of the respondent governments might be a sufficient foundation for concluding that the applicants came within their jurisdiction whereas here the essential issue is whether soldiers who are subject to the exclusive legal control of the UK authorities remain within its jurisdiction.
+There is nothing in Bankovic which speaks directly to the question whether a member state that takes its soldiers abroad, asserts that it has sole authority over them and expressly excludes all other possible forms of control over them can nevertheless claim that those soldiers are not within its jurisdiction for the purposes of article 1 of the Convention.
+To suggest, as the Secretary of State must, that soldiers are within the jurisdiction of the United Kingdom for every conceivable legal purpose other than article 1 seems to me to involve the acceptance of one anomaly too many.
+In this appeal the Secretary of State has argued that, because it is impossible to secure the whole package of Convention rights for soldiers serving abroad, it should be concluded that they cannot be within the UKs jurisdiction for article 1 purposes.
+Expressed in this unvarnished way, the argument appears circular or, at least, intensely pragmatic.
+But a similar argument found favour with ECtHR in Bankovic and with the House of Lords in Al Skeini.
+One must consider, therefore, whether this is a universally required prerequisite in order to bring an applicant within the jurisdiction.
+As Lord Phillips has pointed out (in para 43 of his judgment), the European Court in Drozd and Janousek v France and Spain (1992) 14 EHRR 745 accepted that if the applicants had appeared before a French judge sitting in that capacity in Andorra they would have been within the jurisdiction of France for the purposes of article 1 in relation to their article 6 rights.
+They would not have been entitled to claim against France the benefit of protection of the other Convention rights, however.
+It is implicit in that judgment that there are certain settings in which the whole package principle does not apply.
+In other words, there is not an invariable pre condition that one must be able to have access to the entire panoply of Convention rights in order to be able to claim that one is within the jurisdiction of the member state for the purposes of article 1.
+Likewise in Carson v United Kingdom (Application No 42184/05) (unreported) 16 March 2010, the decision of the Grand Chamber on the admissibility of claims against the United Kingdom by persons who were resident abroad must have proceeded on the basis that they were within the jurisdiction for the purposes of pursuing a claim of violation of article 14 of the Convention in combination with article 1 of the First Protocol.
+There was no question of the applicants being entitled to the benefit of other Convention rights.
+It follows that the whole package of rights principle is not an indispensable requirement in every case.
+It is not necessary in every instance that it be shown that an applicant, in order to be entitled to claim that he is within the jurisdiction for article 1 purposes, must also show that he is entitled to the benefit of all the Convention rights.
+It appears to me that this principle is primarily relevant in the territorial control context.
+One can understand that an applicant who claims that he is entitled to be regarded as within the jurisdiction of a member state on the basis that he was, at the material time, within the territory controlled by that state should be able to demonstrate that the state was in a position to deliver all the protections secured by the Convention.
+In that instance the capacity of the state (or its lack of capacity) to deliver that breadth of protection can be seen as a measure of the extent of its control of the territory.
+Having examined the cases of Drozd; X and Y v Switzerland (1977) 9 DR 57; Gentilhomme, Schaff Benhadji and Zerouki v France (Application Nos 48205/99, 48207/99, 48209/99) (unreported) 14 May 2002, Lord Phillips suggests that they might be thought to support a general principle that there will be jurisdiction under article 1 whenever a state exercises legislative, judicial or executive authority which affects a Convention right of a person, whether or not he is within the territory of that state.
+He points out, however, that the Strasbourg court had not yet propounded such a principle.
+I agree that no principle in these precise terms has been articulated by the ECtHR but where the exercise of such authority is combined with control over the individual affected, it appears to me that the extra territorial extension of jurisdiction is undeniable.
+The essence of the decisions in Bankovic and Al Skeini is that an exception to the territorial basis for jurisdiction will be recognised where there is effective control of the relevant territory and its inhabitants by an occupying force.
+The rationale for the decision is surely the element of control.
+Where the occupying force supplants and replaces the power which had been wielded by the national authority, it provides, indeed imposes, its own jurisdiction.
+No particular magic attaches to the geographical dimension of this exercise of power it is the comprehensive nature of the power rather than the area where it is exerted that matters.
+Obviously, in those areas where the occupying force is unable to exert a measure of power that might be regarded as effective, its jurisdiction will not be established but that is a reflection of the restriction on the power rather than of geography.
+And so, where the control of an individual is of a sufficiently comprehensive nature as to qualify for the description, effective power, there is no reason in logic or principle that he should not be regarded as being within the jurisdiction of the state which wields that power over him.
+If a state can export its jurisdiction by taking control of an area abroad, why should it not equally be able to export the jurisdiction when it takes control of an individual?
+I agree with Lord Phillips that, despite some indications to the contrary, the case law of Strasbourg has not yet developed to the point of recognising a general principle that there will be jurisdiction under article 1 whenever a State exercises legislative, judicial or executive authority in a way that affects an individuals Convention right, whether that person is within the territory of that State or not.
+But where an individual is under the complete control of his native state while in foreign territory, I cannot see any reason that he should be regarded as being any less within its jurisdiction than individuals who happen to find themselves in a location in that territory which is under the effective control of the same state.
+And it appears to me that this position has already been recognised, albeit somewhat obliquely, by the ECtHR.
+In Issa v Turkey (2004) 41 EHRR 567 the court said at para 71: a State may also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former States authority and control through its agents operating whether lawfully or unlawfully in the latter State.
+Lord Phillips suggests that this passage clearly advances state agent authority as an alternative to effective territorial control as a basis of article 1 jurisdiction.
+I agree.
+But, more significantly, it emphasises the importance of control (whether of territory or individuals) as the essential ingredient in extra territorial jurisdiction.
+That theme featured again in the recent decision of the Grand Chamber in Medvedyev v France (Application No 3394/03) judgment delivered on 29 March 2010.
+In that case a special forces team from a French warship boarded a merchant vessel which, it was suspected, was carrying drugs.
+After boarding the vessel, the French commando team kept the crew members of the merchant ship under their exclusive guard and confined them to their cabins during the rerouting of the ship to France.
+At para 67 the court said: the court considers that, as this was a case of France having exercised full and exclusive control (my emphasis) over the [merchant vessel] and its crew, at least de facto, from the time of its interception, in a continuous and uninterrupted manner until they were tried in France, the applicants were effectively within Frances jurisdiction for the purposes of article 1 of the Convention.
+The exercise of control was obviously pivotal to the finding that the merchant ships crew were within the jurisdiction of France.
+That control had no geographical dimension, at least not before the vessel was returned to France.
+But the very fact that the crew members were under the control of the French authorities, even before they arrived in France, was sufficient to bring them within French jurisdiction for the purposes of article 1 of the Convention.
+If taking control of the crew members on the high seas is sufficient to bring them within the jurisdiction of France, it appears to me that where a state asserts and exercises exclusive control over the members of its own armed forces while they are in foreign territory, this must be an a fortiori instance of the extra territorial reach of the Convention.
+The prospect of the state owing article 2 obligations to its soldiers serving overseas is not the daunting one that the appellant in this case has portrayed.
+For the reasons explained by Lord Rodger in his judgment, the article 2 investigation conducted by means of a coroners inquest is not concerned with matters of policy or broad political decisions.
+The primary function of a coroners inquest is, as Lord Phillips has put it, to find facts rather than review policy.
+Lord Brown expresses concern that, if it is held that soldiers operating outside the espace juridique are within the jurisdiction for the purposes of article 1, Strasbourg will scrutinise a contracting states planning, control and execution of military operations to decide whether the states own forces have been subjected to excessive risk.
+I am afraid that, with great respect, I must disagree.
+The cases which prompted Lord Browns apprehension were Ergi v Turkey (1998) 32 EHRR 388, Isayeva, Yusupova and Bazayeva v Russia (Application Nos 57947 49/00) [2005] ECHR 129 and Isayeva v Russia (Application No 57950/00) [2005] ECHR 128.
+In the first of these cases, the Turkish security forces had set up an ambush in the vicinity of the village where the applicants sister lived, purportedly to capture members of the PKK.
+The applicant alleged that his sister had been killed by a bullet fired by members of the security forces in the course of an indiscriminate, retaliatory attack on the village, apparently carried out because the inhabitants had in the past harboured members of the PKK.
+Although the court felt unable to conclude that the applicants sister had been killed by a bullet fired by a member of the security forces or that the firing on the village was carried out in retaliation, as alleged, it decided that, even on the governments account of having laid an ambush for the PKK and having been involved in a fire fight with them, a violation of article 2 had been established.
+This was because insufficient precautions had been taken to protect the lives of the civilian population.
+It was also held that the investigation into the death was insufficient to satisfy the procedural requirements of article 2.
+Judgment in the second and third cases referred to by Lord Brown was delivered on the same day, 24 February 2005.
+In the earlier of these two cases the applicants alleged that they had been the victims of indiscriminate bombing by Russian military planes of a civilian convoy near Grozny.
+The attack took place while the applicants were on what had been designated a humanitarian corridor.
+It was found that a large number of civilian vehicles were in the convoy when the attack took place.
+It was found that, even assuming that the military were pursuing a legitimate aim, the operation had not been planned and executed with sufficient care for the civilian population.
+In the final case the applicant claimed that she and her family were the victims of an air bombardment by Russian forces while trying to flee their village in Chechnya.
+It was established that heavy free falling, high explosive bombs and other non guided heavy combat weapons were used in the centre and on the edges of the applicants village.
+The avowed justification for this was that the civilian population was being held hostage by a large group of Chechen fighters.
+No attempt had been made to evacuate the village in advance and no steps had been taken to minimise the risk of injury to the civilian population.
+A breach of article 2 was found.
+The facts of these three cases are very far removed from the hypothetical example given by Lord Brown of courts embarking on scrutiny of planning, control and execution of military operations to decide whether a states own forces have been exposed to excessive risk.
+Lord Brown acknowledges that Strasbourgs concern in these cases was essentially for the safety of civilians caught up in conflict.
+That is a very different matter from the safety of combatants in the course of a war.
+As Lord Rodger has said, deaths and injuries of soldiers in a combat situation are inevitable.
+There is no reason, in my view, to anticipate that a similar level of scrutiny to that suitable to the death of a civilian will be required or appropriate where a soldier has been killed in the course of military operations.
+In this context, I should say that I agree entirely with Lord Rodgers observations in para 126 of his judgment.
+It will often be possible to suggest, after an event, measures that could have been taken that might have reduced the risk to a particular soldier but that type of retrospective analysis is surely inapposite (and will be recognised by courts as such) to address the question whether a states obligations to its soldiers under article 2 have been discharged.
+The duty to protect soldiers in a war setting is of an entirely different nature from the obligation to take proper steps to ensure that civilians are not exposed to unnecessary risks from military operations.
+I do not believe that the fear of tactical decisions taken in the field by military commanders being subject to painstaking dissection by the courts is justified or that it should deter this court from declaring that when our government commits our armed forces to wars in foreign territories, it cannot deny them the protection that the Convention affords.
+The second issue
+I have read and agree with the judgment of Lord Phillips in relation to the second issue.
+For the reasons that he has given, I would dismiss the appeal on this ground also.
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+This appeal concerns the liability of employers in the knitting industry of Derbyshire and Nottingham for hearing loss shown by employees to have been suffered during the years prior to 1 January 1990, the date when the Noise at Work Regulations 1989 (SI 1989/1790) came into force.
+The central issue is whether liability exists at common law and/or under section 29(1) of the Factories Act 1961, towards an employee who can establish noise induced hearing loss resulting from exposure to noise levels between 85 and 90dB(A)lepd.
+Noise is generated by pressure levels in the air.
+The loudness of a noise depends on the sound pressure level of the energy producing it, measured in decibels (dB).
+The decibel scale is logarithmic, so that each 3dB increase involves a doubling of the sound energy, even though a hearer will not actually perceive a doubled sound pressure as involving much, if any, increase in sound.
+Noise is rarely pure, it usually consists of a broadband combination of sounds at different frequencies, and the human ear is more sensitive to noise at some (particularly middle) frequencies than at others.
+The sound pressure level across a range of frequencies is in a general industrial context commonly expressed by a weighted measurement described as dB(A).
+Apart from very loud, immediately damaging noise, with which this case is not concerned, damage to the human ear by noise exposure depends upon both the sound pressure level from time to time and the length of exposure, as well the individual susceptibility of the particular individual.
+Sound pressure level averaged over a period is described as dB(A)leq.
+Exposure at a given dB(A)leq for 8 hours is described as dB(A)lepd.
+Exposure at a given dB(A)lepd for a year gives a Noise Immission Level (NIL), which will build up slowly with further years exposure.
+Sound is perceived by the hearer as a result of the conversion by the ear drum of the sound pressure variations in the air into mechanical vibrations.
+These are conveyed by the middle ear to the cochlea, which, by a process of analysis and amplification, translates these vibrations into nerve impulses which are then transmitted to the brains auditory nerve.
+Hair cells in the cochlea play a vital part in the process, and noise induced hearing loss (described as sensorineural) is the result of damage to such hair cells resulting from exposure to noise over time.
+Other causes of hearing loss include decline in the conductive function of the outer and/or inner ear, due for example to disease, infection, excess wax or very loud traumatic noise, as well as loss due to simple ageing (presbyacusis).
+Hearing loss is commonly measured by ascertaining the average threshold below which hearing is affected and comparing it with a normal threshold.
+Both the rate at which any individual will suffer ageing loss and the susceptibility of any individual to damage as a result of noise exposure are, as between different individuals, very variable as well as unpredictable.
+Statistics, produced as will appear in the 1970s, do no more than attempt to indicate what percentage of a particular population may be predicted to suffer a particular level of hearing loss by a particular time in their lives by these different causes depending upon their circumstances.
+In 1971 a Code of Practice was prepared by the Industrial Health Advisory Committees Sub Committee on Noise, and in 1972 it was published by the Department of Employment as a blueprint for action.
+This Code remained in issue at the material times thereafter, and it said that a level of 90dB(A) should not be exceeded [i]f exposure is continued for eight hours in any one day, and is to a reasonably steady sound (para 4.3.1).
+On 14 February 2007, His Honour Judge Inglis decided test cases, involving seven claims against four different companies: Taymil Ltd (successors to the liabilities of several employing companies and now known as Quantum Clothing Group Ltd), Meridian Ltd, Pretty Polly Ltd and Guy Warwick Ltd. The cases were all brought on the basis that there had been exposure to noise levels between 80 and 90dB(A)lepd.
+Mrs Bakers claim was against Taymil.
+She had worked in Simpson Wright & Lowes factory in Huthwaite Road, Sutton in Ashfield from 1971 (when she was 15) to 2001.
+The judge found that for 18 years, from 1971 to 1989, she is likely to have been exposed to a noise level that attained 85dB(A)lepd, but did not at any time substantially exceed that level by more than 1db (para 182).
+He also found that some other condition was affecting her left ear, but that her years of exposure at or slightly above 85dB(A)lepd had led to her sustaining a degree of noise induced hearing loss and had played a small part in her suffering tinnitus.
+But Mrs Bakers claim failed on the ground that her employers had not committed any breach of common law or statutory duty.
+Had liability been established, the judge would have awarded her 5,000 for this slight hearing loss and slight contribution to the tinnitus (paras 192 193).
+All the other employees claims failed.
+In none of their cases was any noise induced hearing loss shown to have occurred due to the relevant employment.
+Only for a few months in the 1960s in the case of Mrs Moss claiming against Taymil and for about two years (1985 1986) in the case of Mrs Grabowski claiming against Pretty Polly was there shown to have been any exposure to noise levels of or over 85dB(A)lepd in the relevant defendants employment.
+However, in the case of Meridian (employers of Mr Parkes and Mrs Baxter and a subsidiary of Courtaulds plc) and Pretty Polly (employers of Mrs Grabowski and a subsidiary of Thomas Tilling Ltd until 1982 and of BTR plc until 1994) the judge would have held liability to exist from the beginning of 1985, had noise induced hearing loss been shown to have been incurred due to exposure to noise exceeding 85dB(A) in such defendants employment.
+Mrs Baker appealed to the Court of Appeal as against Quantum, and Meridian and Pretty Polly were joined to enable issue to be taken with certain of the judges conclusions potentially affecting other claims.
+Guy Warwick was a respondent to an appeal brought only on costs.
+The Court of Appeal (Sedley, Smith and Jacob LJJ) allowed Mrs Bakers appeal on 22 May 2009, and reached conclusions less favourable to all four employers than those arrived at by the judge.
+The present appeal is brought by Quantum, Meridian and Pretty Polly, with Guy Warwick intervening by permission of the Supreme Court given on 30 June 2010.
+The test of an employers liability for common law negligence is common ground.
+In Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776, 1783, Swanwick J described the position as follows: From these authorities I deduce the principles, that the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions.
+He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve.
+If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.
+Mustill J adopted and developed this statement in another well known judgment in Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405, when he said (at pp 415F 416C): I shall direct myself in accordance with this succinct and helpful statement of the law, and will make only one additional comment.
+In the passage just cited, Swanwick J drew a distinction between a recognised practice followed without mishap, and one which in the light of common sense or increased knowledge is clearly bad.
+The distinction is indeed valid and sufficient for many cases.
+The two categories are not, however, exhaustive: as the present actions demonstrate.
+The practice of leaving employees unprotected against excessive noise had never been followed without mishap.
+Yet even the plaintiffs have not suggested that it was clearly bad, in the sense of creating a potential liability in negligence, at any time before the mid 1930s.
+Between the two extremes is a type of risk which is regarded at any given time (although not necessarily later) as an inescapable feature of the industry.
+The employer is not liable for the consequences of such risks, although subsequent changes in social awareness, or improvements in knowledge and technology, may transfer the risk into the category of those against which the employer can and should take care.
+It is unnecessary, and perhaps impossible, to give a comprehensive formula for identifying the line between the acceptable and the unacceptable.
+Nevertheless, the line does exist, and was clearly recognised in Morris v West Hartlepool Steam Navigation Co Ltd [1956] AC 552.
+The speeches in that case show, not that one employer is exonerated simply by proving that other employers are just as negligent, but that the standard of what is negligent is influenced, although not decisively, by the practice in the industry as a whole.
+In my judgment, this principle applies not only where the breach of duty is said to consist of a failure to take precautions known to be available as a means of combating a known danger, but also where the omission involves an absence of initiative in seeking out knowledge of facts which are not in themselves obvious.
+The employer must keep up to date, but the court must be slow to blame him for not ploughing a lone furrow.
+An employer following generally accepted practice will not therefore necessarily be liable for common law negligence, even if the practice involves an identifiable risk of leading to noise induced hearing loss.
+There is, as Hale LJ also said succinctly in Doherty v Rugby Joinery (UK) Ltd [2004] EWCA Civ 147; [2004] ICR 1272, para 44, a distinction between holding that a reasonable employer should have been aware of the risks and holding that certain steps should have been taken to meet that risk.
+Section 29 of the Factories Act 1961 provides: (1) There shall, so far as is reasonably practicable, be provided and maintained safe means of access to every place at which any person has at any time to work, and every such place shall, so far as is reasonably practicable, be made and kept safe for any person working there. (2) Where any person has to work at a place from which he will be liable to fall a distance more than six feet six inches, then, unless the place is one which affords secure foothold and, where necessary, secure hand hold, means shall be provided, so far as is reasonably practicable, by fencing or otherwise, for ensuring his safety.
+The judgments below
+In his clear and comprehensive judgment, His Honour Judge Inglis followed the authority of Taylor v Fazakerley Engineering Co (Rose J, 26 May 1989) in concluding that the standard of safety required under section 29(1) is governed by the general standard which ought reasonably to have been adopted by employers at the relevant time, and therefore that the section did not add materially to the common law duty in that respect (para 99).
+He held (para 87), in the light of the Code of Practice 1972 and extensive oral evidence called before him, that neither Taymil nor Guy Warwick as reasonable and prudent employers could be said to have been in breach of duty at common law or under section 29(1) during the 1970s and 1980s, certainly until the time when the terms of [European Economic Community Directive 86/188/EEC of 12 May 1986] became generally known in the consultative document.
+The consultative document in question was Prevention of damage to hearing from noise at work, Draft proposals for Regulations and Guidance, issued by the Health and Safety Commission in 1987.
+The document invited comments by 30 June 1988 and led to the Noise at Work Regulations 1989 (SI 1989/1790) which took effect from 1 January 1990.
+In the case of Meridian and Pretty Polly, the judge held that they had a greater understanding of the risks of noise by the beginning of 1983, that this required them to put in place a conservation programme accompanied by information and instruction, and that they were potentially liable from the beginning of 1985.
+The judge thus allowed a two year period for action from the date when there was or should have been appreciation that action was necessary.
+However, it is in issue whether, in the case of Taymil and Guy Warwick, he was treating the two year period as expiring at some undefined time during 1989 or as expiring on 1 January 1990, the same date as the 1989 Regulations came into force.
+In the Court of Appeal, the main judgment was given by Smith LJ, with whom the two other members of the court agreed.
+Sedley LJ gave some short additional concurring reasons.
+The court differed from the judge.
+It held section 29 of the Factories Act 1961 to involve a more stringent liability than liability for negligence at common law, and it held further that, were it material, it would have concluded that liability for negligence at common law arose at earlier dates than the judge had adopted.
+With regard to section 29, Smith LJ concluded that the court was bound by the previous authority of Larner v British Steel [1993] ICR 551, with which she anyway agreed, to hold that whether a place was safe involved applying [an] objective test without reference to reasonable foresight and that what is objectively safe cannot change with time (paras 77 and 78).
+In the alternative, if foresight was relevant, she would have held that by the early 1970s, any employer who kept abreast of developing knowledge would have known that prolonged exposure to 85dB(A)lepd was harmful to some people, making the workplace unsafe for an undefined section of his workforce, and, so, that he must do what was reasonably practicable to make and keep it safe.
+She concluded that having regard to a method available in a British Standard BS 5330 published in July 1976 which could be used by anyone with a modest degree of mathematical skill the position was that by late 1976 or early 1977, the average sized employer in the knitting industry could and should have been able to make an informed assessment of the quantum of risk arising from the below 90dB(A)lepd noise in his workshops.
+She then allowed, instead of the judges two year period, about six to nine months for the provision of ear protectors once the decision had been taken that they should be provided and, for the sake of simplicity fixed the date, by which action should have been taken and as from which liability arose under section 29(1), as January 1978 (paras 101 102).
+On this basis, Mrs Baker was awarded, for breach of statutory duty, 66.67% of 5,000 in respect of the 12 years of noise exposure which she suffered from January 1978.
+With regard to the common law claim, Smith LJ concluded that HHJ Ingliss holding in para 87 of his judgment (para 16 below) cannot be faulted, and upheld his view that there was no breach of the duty at common law during the period for which a responsible body of opinion regarded it as acceptable to expose employees to noise in the 85 89dB(A)lepd range (para 105).
+While indicating her personal inclination towards an earlier date (based on the publication in 1982 by the European Commission of a first draft directive, later withdrawn), she also agreed with the judges conclusion that for the employer with the ordinary, or average degree of knowledge, that period came to an end in 1987, following publication of the second draft Directive (para 105).
+In this connection, she again held that to allow longer than six to nine months was over generous, and so fixed the date of any breach of common law duty by the average employer at January 1988 (para 106).
+She agreed that Meridian and Pretty Polly should have known by early 1983 which of their workers required protection and should within six to nine months thereafter have provided such protection (paras 107 108); and she regarded it as irrational to treat Quantum any differently, merely because it was part of a smaller group and operated as an individual company without the benefit of the central advice on health and safety issues enjoyed by the Courtaulds group and Pretty Polly.
+So Quantum would, in the Court of Appeals view, have been liable at common law, like Meridian and Pretty Polly, from late 1983 (para 109).
+The history
+The judge set out in paras 29 to 45 the history of investigation and awareness regarding the risks of occupational exposure to noise from the early 1960s to date.
+The Court of Appeal helpfully summarised the historical background in terms which I quote, interposing a number of observations of my own.
+Historical Background 2.
+For well over a hundred years, it has been known that prolonged exposure to loud noise causes deafness.
+Such deafness was long regarded as an unavoidable occupational hazard.
+In the early 20th century, ear protectors were developed and were supplied to some members of the armed forces during both world wars.
+But it was not until the second half of the century that any real interest was taken in preventing noise induced deafness in industrial workers. 3.
+In April 1960, the government of the day instructed Sir Richard Wilson to chair a committee to report on the problems of noise.
+The committee's first report was published in 1963.
+In the same year, in reliance on that report, a Ministry of Labour publication entitled 'Noise and the Worker' drew the attention of employers to the need to protect their workers from excessive noise.
+At that time, scientific knowledge was not such that it could be said with confidence at what noise level harm was likely to occur.
+A rough guide was given that workers who were regularly exposed to noise of 85 decibels (dB) at any frequency for eight hours a day should be protected.
+I interpose that the author of the report was in fact Sir Alan Wilson FRS.
+An interim report was published in March and the final report in July.
+Noise and the Worker was published in the light of the interim report. 4.
+Further research was carried out during the 1960s, in particular by a team led by Professor W Burns, Professor of Physiology at the University of London and Dr D W Robinson, then head of the acoustics section of the National Physical Laboratory.
+In 1970, the result of their work was published as 'Hearing and Noise in Industry'.
+By that time, a method had been developed of measuring noise levels by reference to the weighted average for all frequencies (expressed as dB(A)) and for assessing the equivalent noise exposure over an eight hour working day (expressed as dB(A)leq or more recently dB(A)lepd).
+Burns and Robinson explained that they were now in a position to predict the degree of risk of hearing loss to groups of an exposed population of varying susceptibility from various levels of noise exposure.
+Their work would make it possible to prepare a code of practice for employers.
+They discussed the possibility of establishing a limit of maximum exposure as follows: The limit can be set at a variety of levels according to the ultimate risk judged to be acceptable and we suggest that it should not be set higher than 90dB(A) for normal continuous daily exposure which is likely to persist for many years. 5.
+In 1968 and 1971 two further editions of 'Noise and the Worker' were published.
+The gist of the advice given in the third edition was that, if employees were exposed to noise in excess of 90dB(A), there should be a programme of noise reduction or hearing conservation.
+That level of noise exposure corresponded approximately to the 85dB which had been the level at which action was recommended in the first edition of 'Noise and the Worker'.
+The third edition encouraged employers to reduce noise exposure below the maximum permitted level in order to avoid risk to the hearing of 'the minority of people who are exceptionally susceptible to hearing damage.
+The guidance given in the third edition to help to protect most people against serious hearing loss was that they should not be exposed to levels of noise exceeding maximum sound levels specified in table 1 by reference to duration of exposure.
+In the case of an exposure duration of eight hours a day (the longest covered), the maximum sound level specified was 90dB(A).
+The encouragement given to reduce noise exposure below the maximum was to reduce noise exposure if possible and was expressed to be in order to avoid risk to the hearing of the minority of people who are exceptionally susceptible to hearing damage, and for reasons of general welfare.
+In the foreword to impressions published after April 1972, two of them by 1976, the third edition also said: This booklet has been overtaken by the publication in April 1972 of the Code of Practice .
+However it is a useful introduction to the subject and should be read as a supplement to the Code.
+The third edition referred under the head Monitoring Audiometry to the possibility of monitoring checks, but did not repeat the suggestion in the second edition that monitoring should take place in respect of noise levels approaching those set out in table 1. 6.
+A Code of Practice, based on the work of Burns and Robinson was published by the Department of Employment in 1972.
+Its main messages were that employers must measure the noise in their premises and, if the noise level was 90dB(A)leq or above, must take steps to reduce the noise at source and, if that was not practicable, to provide ear protectors.
+The Code of Practice also explained that protection from noise of 90dB(A)leq would not protect all workers from hearing damage; some harm was likely to be caused to some susceptible workers by noise below that level.
+The Court of Appeal was not justified in using the word likely.
+What the relevant paragraph (1.1.2) in fact said was: The Code sets out recommended limits to noise exposure.
+It should be noted that, on account of the large inherent variations of susceptibility between individuals, these limitations are not in themselves guaranteed to remove all risk of noise induced hearing loss. 7.
+A set of tables first published in 1973 by the National Physical Laboratory (the NPL tables) showed the relationship between noise dose and the expected extent of hearing loss of persons with different degrees of susceptibility.
+Noise dose was based upon the daily exposure adjusted for the number of days' exposure in the year and the number of years' exposure.
+These tables were based on the work of Burns and Robinson.
+They were republished in 1977 in a more user friendly form but the underlying science was the same as before and indeed it remains valid today.
+The tables demonstrated the harmful effect of prolonged exposure to noise below 90dB(A)leq but, because they were based on empirical data and because the data available for these lower noise levels was limited, there was some dependence on extrapolation.
+The degree of predicted risk arising from exposure to these lower levels of noise is therefore less certain than that caused by noise over 90dB(A)leq.
+That is of significance in the context of this appeal which raises the issue of when employers ought to have taken steps to protect their employees from exposure to such lower levels of noise.
+These tables consisted of some 15 pages of introductory material and 149 pages of tables.
+The latter would require expert advice to interpret, but, even with such advice, they did no more than indicate in detailed statistical terms the risk to susceptible employees identified by the Code of Practice.
+The judge recorded (para 23) the expert evidence that the NPL tables were (as distinct from the ISO1999 tables mentioned in point 10 below) less accurate below 90dB(A), though reasonably accurate above that level.
+They tend at lower levels to exaggerate the effect of noise.
+Some of the NPL tables were used in BS 5330: 1976 mentioned in point 11, below. 8.
+Until 1989, the Government of the United Kingdom made no attempt of general application to regulate noise exposure in industry.
+In 1974, regulations were made to control noise in the woodworking industry and in tractor cabs.
+The regulations required employers to reduce noise to the greatest extent practicable and to provide ear protectors where persons were likely to be exposed to noise at or above 90dB(A)leq, 9.
+In 1975, a sub committee of the Industrial Health Advisory Committee, set up after publication of the Code of Practice in 1972, reported on the problems of framing protective legislation.
+The gist of this report was that the noise limit recommended by the 1972 Code had widespread acceptance although it did not eliminate all risk of harm. 90dB(A)leq was the most practicable standard although a lower limit should be considered at regular intervals.
+More particularly, para 19 of the report, Framing Noise Legislation, read: The Codes noise limit of 90dB(A)leq has widespread international acceptance, and although it does not eliminate all risk of hearing damage, we feel it continues to be the most practicable standard, in recognition of the necessity of concentrating limited resources on workers subject to the most significant risks and of eliminating these risks as a first priority.
+Prediction of risks of hearing damage at these levels, based on a lifetimes exposure of 30 or 40 years, indicates that the proportion of an exposed population likely to suffer unacceptable degrees of impairment falls off rapidly below 90dB(A).
+The specification of a daily dose introduces a further margin of safety since it is unlikely that a large number of workers would receive the full daily limit throughout their entire working lifetimes.
+Similar conclusions have been reached in other major industrial countries, and none of those examined in our survey has introduced a generally applicable environmental limit lower than 90dB(A).
+Nevertheless, the question of a lower limit should be reconsidered at regular intervals.
+A level of 90dB(A) is by no means ideal, and the aim should be to ensure a progressive reduction. 10.
+In 1975 an international standard was published (ISO1999).
+This proposed a formula by which hearing loss could be predicted from various levels of noise exposure.
+It was not easy for a lay person to use.
+IS01999 did not suggest limits of tolerable exposure.
+It said that that was the province of 'competent authorities' who would demand the institution of hearing conservation programmes if limits were exceeded.
+It mentioned that 'in many cases', 85 to 90dB(A) equivalent continuous sound level had been chosen. 11.
+In 1976, a British Standard was published (BS 5330: 1976).
+This was based on the work of Burns and Robinson and explained the relationship between noise exposure and the expected incidence of hearing disability.
+The foreword stated that determination of a maximum tolerable noise exposure was outside the scope of the standard and referred the reader to the 1972 Code of Practice.
+More particularly, BS 5330 said: Determination of a maximum tolerable noise exposure is outside the scope of this standard; it involves consideration of risk in relation to other factors.
+For occupational noise exposure such a limit is specified in the Department of Employment (HMSO, 1972) Code of Practice for Reducing Exposure of Employed Persons to Noise. 12.
+In 1981, the Health and Safety Executive (HSE) issued a consultative document 'Protection of Hearing at Work' which included draft regulations and a draft approved code of practice.
+The proposed level of protection was at or above 90dB(A)lepd.
+These draft regulations were not promulgated. 13.
+In 1982, a draft directive was published by the European Commission, proposing a general limit of 85dB(A)lepd with ear protection to be provided at or above that level with medical surveillance and routine audiometry for all employees exposed at or above that level.
+This was greeted with some dismay by industry and was withdrawn in 1984.
+A further draft directive was published and was promulgated in 1986.
+This required member states to enact legislation which would, inter alia, require employers to provide ear protectors and information as to risks where employees were exposed to noise likely to exceed 85dB(A)lepd.
+Medical surveillance was to be made available to all exposed employees by means of access to a doctor.
+Thus, the only change of significance between the 1982 draft and the 1986 directive was that responsibility for medical surveillance would not fall on the employer but (at any rate in this country) would be satisfied through the provisions of the National Health Service.
+The Noise at Work Regulations 1989 (SI 1989/1790) implementing the directive came into effect on 1 January 1990.
+The directive promulgated in (May) 1986 was Council Directive 86/188/EEC.
+It required member states to enact and to bring into force the relevant legislation by 1 January 1990.
+The Court of Appeal was not accurate in stating that the only difference between the 1982 draft and the actual directive in 1986 related to responsibility for medical surveillance.
+As the judge noted (para 39), the directive replaced the earlier withdrawn draft with less stringent proposals: in short, where daily personal noise exposure of a worker exceeded 90dB(A), the directive required the use by the worker of personal ear protectors (article 6(1)), but where such exposure was likely to exceed 85dB(A), it only required such protectors to be made available to workers (article 6(2)). 14.
+For the sake of completeness, although not relevant to this appeal, I mention that, in 2003, the European Commission issued a further directive imposing more stringent requirements.
+The Control of Noise at Work Regulations 2005 (SI 2005/1643) gave effect to that directive.
+Inter alia, they introduced a maximum permitted noise level of 87dB(A) and required employers to provide ear protectors to workers exposed to 85dB(A) and to make them available on request to workers exposed to 80dB(A).
+The judge in paras 46 to 48 also set out the general approach to noise in industry until the end of the 1980s, based on the oral evidence called before him.
+Paras 46 to 48 of HHJ Ingliss judgment led him to reach the following conclusions on liability in para 87: 87.
+There is no doubt that research into the question of what risks to the hearing of employees exposure below 90dB(A)leq posed would have yielded the answer that 90dB(A) was not a natural cut off point, and that there were risks to susceptible individuals below that level.
+Indeed, the 1972 Guidelines themselves made that clear.
+From the early 1970s, certainly by 1976 with the publication of BS 5330 and of IS0 1999 in the previous year, the information was available if researched to give an indication of the level of the risk.
+It was a level of risk that came by the end of the 1980s to be seen as unacceptable if not accompanied by at least voluntary protection, though the 90dB(A) limit had remained, both in 1975 and in 1981, the proposed regulatory standard in England.
+In the end though I am not persuaded that employers in industry who conformed to the maximum acceptable level of exposure in the 1972 Guidelines were in breach of their duty of care to their employees who were exposed over 80dB(A)lepd.
+In rejecting the primary case for the claimants I acknowledge that I do not see the issue as only one of foreseeability.
+It would in my judgment be futile to hide behind the 1972 Guidelines for that purpose, or behind the third edition of Noise and the Worker, when the documents themselves proclaim that the level proposed will not be safe for all workers.
+But good practice as informed by official guidance has in my view to be taken into account as well.
+The guidance as to the maximum acceptable level was official and clear.
+It would in my view be setting too high a standard to say that it was incumbent on employers to ignore it, and to reach and act, even as early as the 1960s, on a view that the standard set was inadequate to discharge their duty to their employees.
+To put it in the context of Swanwick J's judgment, complying with 90dB(A)lepd as the highest acceptable level was, I think, meeting the standards of the reasonable and prudent employer during the 1970s and 1980s, certainly until the time when the terms of the 1986 directive became generally known in the consultative document of 1987.
+I accept that this means that employers were not bound in the discharge of their duty to ask the question Who are those at risk in my factory, and how big is the risk.
+It is a question that none of them in this case asked.
+But the effect of the maximum acceptable level in the Guidelines means in my judgment, that they were not in breach of their duty for not asking it.
+The judge then distinguished the position of Meridian (Courtaulds) and Pretty Polly: 88.
+There is room, however, for greater than average knowledge as Swanwick J put it, to inform the steps that individual employers should have taken at an earlier time than the late 1980s.
+At first sight it is not attractive that those who have a safety department and medical officers and take the matter of noise seriously should be worse off than those who wallow in relative ignorance, but it is an inevitable consequence of a test that depends on what an individual employer understood.
+On that basis, I have found that by the beginning of 1983 management both at Courtaulds and at Pretty Polly had sufficient understanding of the risks to hearing below 90dB(A)lepd to require them to take action.
+Both in fact say that they did so.
+Plainly putting a conservation programme into action, accompanied by information and instruction is not to be done in an instant, as Mustill J recognised in the passage in Thompson that I have set out above.
+In the case of those two employers, because of the particular state of their knowledge, I would say that they were in breach of their duty to employees who suffered damage through exposure at 85dB(A)lepd and over, without having the opportunity of using hearing protection, from the beginning of 1985.
+Earlier in his judgment, HHJ Inglis had made detailed factual findings about the conduct and understanding of each of the relevant employers with regard to the risks of noise induced hearing loss.
+I summarise these in the appendix to this judgment.
+Smith LJ addressed the judges conclusions on liability at common law as follows: 105.
+I consider that the opinion, implied by the Code of Practice, that exposure to noise below 90dB(A)lepd was 'acceptable' was a factor which could properly be taken into account when an employer considered what it was reasonable for him to do in respect of the health and safety of his employees.
+In short, I take the view that Judge Inglis's holding which I quoted at paragraph 46 cannot be faulted.
+I would uphold his view that there was no breach of the duty at common law during the period for which a responsible body of opinion regarded it as 'acceptable' to expose employees to noise in the 85 89dB(A)lepd range.
+I consider that, for the employer with the ordinary or average degree of knowledge, the judge's conclusion that that period came to an end in 1987, following publication of the second European draft directive, was a reasonable conclusion, although, left to myself, I would have said that the publication of the first draft directive in 1982 would have put all employers on notice that it could no longer be regarded as acceptable or reasonable to leave this group of employees exposed. 107.
+The judge imposed different dates of common law liability on Courtaulds and Pretty Polly from that of Quantum and Guy Warwick which he regarded as having only an average degree of knowledge.
+It is clear that from 1972 all employers should have been aware of the risk to some of their employees from exposure to 85 89dB(A)lepd.
+The question at common law was when they should have realised that it was no longer to be regarded as acceptable to disregard that risk.
+The judge's conclusion in respect of Courtaulds was plainly justified.
+They actively opposed the proposal in the first draft directive, not on the ground that the risk was minimal but on the ground that the cost to them would be too great.
+By early 1983, they could no longer have thought that a responsible body of opinion took the view that it was acceptable to ignore the risks of harm below 90dB(A)lepd.
+They should by that time have known which of their workers required protection and only a further six to nine months should be allowed for provision. 108.
+Pretty Polly was in a different position in that there was no direct evidence that it knew of the first draft directive.
+However, in my view the judge was entitled to hold that it must have done.
+In any event, there was other evidence that it had been advised of the need to take action in respect of the lower levels of noise.
+In my view, the judge's holding was justified, subject to the reduction in the period allowed for provision. 109.
+As a fall back submission, Mr Hendy argued that the judge had been wrong to reach a different conclusion in respect of Quantum.
+There was evidence that it was aware of the first draft directive and Mr Hendy submitted that, given that knowledge, it was irrational to say that, because the group was smaller than Pretty Polly or Courtaulds and operated as individual companies without the benefit of central advice on health and safety issues, they should be treated differently from the other two employers.
+I would accept that submission and would hold that, if it were to become material, Quantum would have been in breach of its common law duty at the same date as Courtaulds.
+The judge and the Court of Appeal therefore accepted the Code of Practice as the generally appropriate standard for employers with average knowledge during the 1970s and early 1980s, differing only as to the date in the 1980s when it ceased to be so.
+The judge and, ostensibly at least, the Court of Appeal also distinguished between average employers and other employers, described by the judge as having greater than average knowledge, differing however as to which employers fell into the latter category.
+The parties respective cases on common law liability
+The respondent challenges the conclusion reached by both courts below that the Code of Practice represented a generally appropriate standard; she submits that it ceased to be such from at least 1976, though she does not in this case ask for that date to be substituted for the dates found by the Court of Appeal.
+For opposite reasons, the distinction drawn by the judge between employers with average and greater than average knowledge finds little support in any sides submissions.
+Mr Hendy positively asserts that all three appellant employers and the interveners were in the same position; that they should all be treated as having the same constructive knowledge (based on the generally available published provisions and materials); and that neither court below based its decision upon specific evidence of knowledge of incidence of hearing problems in particular workforces, or technical or operational knowledge specific to the particular defendants (respondents case, para 202).
+So, on his submission, it was not appropriate to regard Quantum and Guy Warwick, or any employer, as any less liable than the judge held Meridian and Pretty Polly to be.
+The Court of Appeal, by putting Quantum into the same category as Meridian and Pretty Polly, went some, though not the whole, way towards accepting this submission.
+The appellants, on the other hand, support the concurrent conclusion below that the Code of Practice constituted an appropriate standard for employers with average knowledge, submit that it continued to be so, as the judge held, until the late 1980s, but also submit that the judge failed to provide any satisfactory analysis of what he meant by greater than average knowledge in para 88, and that he had no basis for treating Meridian and Pretty Polly as liable by reference to any date other than that which he held applicable to the reasonable and prudent employer during the 1970s and 1980s of whom he spoke in para 87.
+Analysis of common law position: (a) Greater than average knowledge?
+At the level of principle, the parties submissions take one back to Swanwick and Mustill JJs classic statements regarding the test of negligence at common law (paras 9 and 10 above).
+These statements identify two qualifications on the extent to which an employer can rely upon a recognised and established practice to exonerate itself from liability in negligence for failing to take further steps: one where the practice is clearly bad, the other where, in the light of developing knowledge about the risks involved in some location or operation, a particular employer has acquired greater than average knowledge of the risks.
+The question is not whether the employer owes any duty of care; that he (or it) certainly does.
+It is what performance discharges that duty of care.
+For that reason, I find difficult to accept as appropriate in principle some of the reasoning in another, more recent Court of Appeal authority, Harris v BRB (Residuary) Ltd [2005] EWCA Civ 900; [2005] ICR 1680 (Neuberger and Rix LJJ).
+In Harris, the issue was whether regular exposure of train locomotive drivers between 1974 and 2000 to noise levels between 85dB(A) and 90dB(A) gave rise to liability for any noise induced hearing loss shown to have resulted.
+Neuberger LJ gave the sole reasoned judgment.
+He accepted on the evidence before the court that, at least until the 1989 Regulations came into force, an employer would not normally be expected to be liable to an employee who was exposed to a level of sound lower than 90dB(A)leq, but said that this evidence cannot go so far as to negative in all circumstances liability to employees whose health is impaired as a result of exposure to sound below that level (para 39).
+After quoting Swanwick J, Neuberger LJ suggested that a good working approach might be to treat 90dB(A) as giving rise to a presumption, with the effect that, below 90dB(A), it was for the employee to show why a duty should be imposed at all (paras 40 41).
+The reference to a duty being imposed derives from the way in which the defendants case was presented: the submission was that the mere fact that a particular level of sound is potentially injurious does not of itself give rise to a duty of care. the existence of a duty of care depends not merely on foreseeability of injury but whether it is just and equitable to impose the duty (para 36).
+On this basis, Neuberger LJ said that, while not intending to call into question the applicability in the general run of cases of the 90dB(A)leq threshold each case must turn very much on its facts, not least because of the just and equitable test accepted, indeed advanced on behalf of the defendant (para 38).
+In my opinion, however, the adoption of such a test would import an extraneous concept.
+The primary inquiry, when considering whether an employer has acted with due care to avoid injury from noise induced hearing loss, is whether there is a recognised and established practice to that end; if there is, the next question is whether the employer knows or ought to know that the practice is clearly bad, or, alternatively, if the area is one where there is developing knowledge about the risks involved in some location or operation, whether the employer has acquired greater than average knowledge of the risks.
+Considerations of justice and equity no doubt underlie both Swanwick and Mustill JJs statements of principle.
+But to ignore the statements and to restate the inquiry in simple terms of justice and equity opens a wide and uncertain prospect, despite the courts attempts in Harris to emphasise that it was not departing from a position whereby an employer would not normally be expected to be liable for a level of sound lower than 90dB(A).
+That prospect has a present resonance, although HHJ Inglis did not base himself on the reasoning in Harris, but used language picking up the more conventional statements of principle.
+Nonetheless, I consider that he did not apply those statements in the sense in which they were meant.
+He did not consider the practice represented in the Code to be clearly bad during the 1970s or until the end of the 1980s; and it is common ground that the general state of knowledge about the risks involved in the knitting industry remained essentially static throughout this period (see also the first seven sentences of para 87 of the judges judgment).
+As Mr Hendy made clear in the Court of Appeal (Core II, pp.749 750), no question of special resources arises, since no amount of research would have led to further knowledge, or indeed to different conclusions about the level of risk than those indicated in the Code of Practice.
+Mr Hendy is in my opinion also correct in saying that the judge based his conclusions, including those relating to Courtaulds and Pretty Polly, on generally available published provisions and materials, rather than on any specific knowledge.
+That is particularly apparent from the final sentences of paras 56 and 66 of his judgment (cited in the appendix) as well as in paras 87 and 88.
+It might perhaps have been suggested, in relation to Courtaulds, that the rising incidence of claims which they experienced in the early 1980s gave rise to some degree of special knowledge, but that is not how the matter has been put.
+It follows that, on the judges approach, the only real difference between employers lay in the degree of their consideration of and reaction to such risks.
+In these circumstances, the judges conclusions in relation to Meridian (Courtaulds) and Pretty Polly amount in substance to saying that, because these companies focused more closely on the potential risk below 90dB(A) and displayed greater than average social awareness (to use Mustill Js words in Thompson at p 415H) by resolving that some action should probably be taken at times before ordinary, reasonable employers arrived at any such conclusion, they incurred greater liability than such employers.
+The judge himself recognised here a paradox (para 88).
+Those who have a safety department and medical officers and take noise more seriously than the ordinary reasonable employer are liable, while others are not.
+That is appropriate if extra resources or diligence lead to relevant fresh knowledge.
+But here they have led simply to the formation or inception of a different view to that generally accepted about what precautions to take.
+In such a case, the effect of the judges approach is not to blame employers for not ploughing a lone furrow; rather, it positively blames them for ploughing a lone furrow but not doing so deeply enough.
+When Mustill J spoke of changes in social awareness (p 415H), he was referring to changes leading to a general raising of the standard which average employers were expected to observe, not of individual employers spear heading such changes by forming the view that the standard should be raised.
+In my view, therefore, no real basis was shown for treating Courtaulds and Pretty Polly differently.
+On this aspect of the appeal, I would only add two points: first, had I considered there to be a sound basis for treating Courtaulds and Pretty Polly as having relevantly different and greater knowledge than average employers, I would see no basis for the Court of Appeals addition of Quantum into the same special category; Lord Dyson and Lord Saville agree, I understand, that there was no such basis; secondly, since Lord Dyson does not share the view that the judge should not have treated even Courtaulds and Pretty Polly as falling into a special category (see para 104 below), it follows that there is no majority in favour of this view and that (in reflection of the common ground between Lord Dyson, Lord Saville and myself), the appeal should be allowed only to the extent of restoring the judges decision in this regard. (b) Was the Code of Conduct an acceptable standard for average employers?
+In my opinion, the respondent is correct in submitting that the real question is the sustainability of the judges conclusion that the Code of Practice constituted an acceptable standard for average employers to adhere to during the 1970s and 1980s.
+The Court of Appeal expressed agreement with the judges conclusion that the Code of Practice remained a generally acceptable standard.
+Smith LJ stated that this conclusion cannot be faulted and that I would uphold his view that there was no breach of the duty at common law during the period for which a responsible body of opinion regarded it as acceptable to expose employees to noise in the 85 89dB(A)lepd range (para 105).
+Endorsing, in effect, the judges approach of distinguishing between employers with average and greater than average knowledge, she concluded para 105 by saying: I consider that, for the employer with the ordinary or average degree of knowledge, the judge's conclusion that that period came to an end in 1987, following publication of the second European draft directive, was a reasonable conclusion, although, left to myself, I would have said that the publication of the first draft directive in 1982 would have put all employers on notice that it could no longer be regarded as acceptable or reasonable to leave this group of employees exposed.
+Turning to examine the different dates of common law liability which the judge had imposed, Smith LJ identified the issue as being when employers should have realised that it was no longer to be regarded as acceptable to disregard the risk to some of their employees from exposure to 85 89dB(A)lepd, of which they should, because of the Code of Practice, have been aware from 1972 (para 107).
+As regards Courtaulds, she regarded the judges conclusion as plainly justified, saying that By 1983, they could no longer have thought that a responsible body of opinion took the view that it was acceptable to ignore the risks of harm below 90dB(A)lepd (para 107).
+However, that appears to say that from 1983 there was no responsible body of opinion in favour of relying on the Code of Practice, and, if so, it should on its face have led automatically to a conclusion that no reasonable employer could do so.
+Nonetheless, Smith LJ went on to consider the state of Pretty Pollys awareness about the need to take action and the 1982 draft directive and of Quantums awareness of the draft directive.
+After noting Quantums awareness of the draft directive, she accepted Mr Hendys submission that it was irrational to say that, because the group was smaller than Pretty Polly or Courtaulds and operated as individual companies without the benefit of central advice on health and safety issues, they should be treated differently from the other two employers (para 109).
+While Smith LJ ostensibly viewed the issue (as the judge did) as depending upon analysis of each individual employers position, in reality her approach seems to suggest a conclusion that the Code of Practice ceased to be an acceptable standard for any responsible employer in 1982.
+In effect, the Court of Appeal appears to have disagreed with HHJ Ingliss conclusion that the period during which a reasonable employer could rely upon the Code of Practice continued until 1987.
+The basis for this, despite the passage concluding para 105 of Smith LJs judgment, quoted above, appears to have been the publication in 1982 of the first draft directive.
+The judges conclusion in para 87 was the product of a lengthy trial, and was based on extensive expert evidence.
+The Code of Practice itself repeatedly refers to a limit defined in section 4.3.1 in relation to continuous noise exposure as 90dB(A)lepd: see e.g. sections 2.2.1, 3.1.2, 4.1.1, 4.2.1, 5.1.1, 6.1.3, 6.7.1 and 7.1.1.
+It also says that Where it is reasonably practicable to do so it is desirable for the sound to be reduced to lower levels (section 4.1.1), but this has to be read with section 6.1.3, which states: Reduction of noise is always desirable, whether or not it is practicable to reduce the sound level to the limit set out in section 4, and whether or not it is also necessary for people to use ear protectors.
+Reduction below the limit in section 4 is desirable in order to reduce noise nuisance.
+When addressing section 29(1) of the Factories Act 1961, the Court of Appeal said (para 101) that, although the Code of Practice was not irrelevant, it was, in itself, plainly inadequate as an assessment tool, in that it advised only that there was some risk to susceptible individuals from exposure below 90dB(A)lepd; and it went on to conclude that the publication of BS 5330 in July 1976 could and should have enabled any average sized employer in the knitting industry, with the assistance of anyone with a modest degree of mathematical skill or any consultant acoustic engineer, to make an informed assessment of the quantum of risk arising from noise below 90dB(A)lepd.
+These statements are not on their face easy to reconcile with the judges findings (in particular in paras 46 48 and 87).
+However, they were made in the course of considering the issue of reasonable practicability under section 29, and on the basis that it was irrelevant in that context whether a reasonable employer could reasonably rely upon the Code of Practice as setting an acceptable standard of conduct in relation to exposure of employees to noise: see paras 89 and 100 (quoted in para 75 below).
+Even if regarded as consistent with the judges findings, they do not therefore bear on the question whether the Code of Practice provided such a standard.
+In any event, however, I do not consider that examination of the underlying statistical material undermines either the appropriateness or relevance of the Code of Practice as a guide to acceptable practice.
+Both the Code of Practice and BS 5330 were based on the research and statistics developed through the work of Burns and Robinson.
+BS 5330 itself stated that determination of a maximum tolerable noise exposure was outside its scope, that it involved consideration of risk in relation to other factors, and that for occupational exposure a limit was specified by the Code of Practice (para 15, above).
+The respondent in fact accepted in the Court of Appeal that there was no basis in this case for going behind the Code of Practice, while submitting that the Code was enough for her purposes (Core II, pp 749 750).
+If general standards of, or attitudes to, acceptable risk are left out of account, the statistical tables contained in the NPL tables, BS 5330 and ISO1999 could be used to suggest that no reasonable employer could from the early or mid 1970s expose his employees to noise exceeding 80dB(A)lepd.
+This would not be consistent with the contemporary recognition of the Code of Practice as setting a generally appropriate standard in BS 5330 itself as well as in other documents such as Noise and the Worker and the Industrial Health Advisory Committee report of 1975 (see para 15 above).
+The statistically identified risks at levels between 80dB(A)lepd (currently, at least, identified with no risk) and 90dB(A)lepd do not enable any easy distinction to be drawn within that bracket, if the elimination of all statistical risk is taken as a criterion.
+This is highlighted by consideration of the tables in BS 5330: 1976 upon which the respondent and the Court of Appeal (para 101) have relied to show the risk attaching at levels of exposure between 85 and 90dB(A) lepd.
+The same tables can be used to demonstrate the existence of risks (in terms of the percentage of persons exposed attaining or exceeding a mean hearing level of 30dB) arising below noise levels of 85dB(A)lepd.
+Caution is necessary because of the inherent inaccuracy, and tendency to exaggerate, of the NPL tables, and to the extent that they were based on them, the BS 5330: 1976 tables at all levels below 90dB(A) (para 15 above).
+But another, separate problem, which also applies to the ISO1999 tables, is that reliance on such tables as demonstrating the existence of a risk which needed counter acting makes it necessary to confront the question on what basis any distinction exists between say an increase by an additional 6% in the level of risk for 60 year old persons who have been exposed for 40 years at 86dB(A)lepd and by 5% for such a person so exposed at 85dB(A)lepd or by 4% for such a person so exposed at 84dB(A)lepd.
+The equivalent increases for 60 year olds so exposed for 30 years would be 52, 42, and 32%, and for 60 year olds exposed for 20 years, 4, 3 and 2%.
+Consistently with this, the respondent did argue before the judge that 80dB(A)lepd was the only acceptable limit.
+But, despite this, the judge concluded that any risk below 85dB(A)lepd was minimal (para 26), and that the risk between 85dB(A)lepd and 90dB(A)lepd was at the relevant times an acceptable risk for reasonable employers without greater than average knowledge to take.
+The judge, correctly, did not resolve the issues before him by considering statistical extrapolations at low levels of exposure, but by forming a judgment on the whole of the expert, documentary and factual evidence adduced before him.
+On the issue whether there was an acceptable contemporary standard to which reasonable employers could adhere, in the light of the terms of the Code of Practice and on the basis of the expert evidence, HHJ Inglis held (para 48) that the 90dB(A)lepd level was regarded . as the touchstone of reasonable standards that should be attained.
+Confirmation existed in notes published by the Wolfson Unit for Noise and Vibration Control in the University of Southampton.
+These were intended to supplement a series of seminars held round the country in the autumn of 1976 on the theme "Industrial Noise The Conduct of the Reasonable and Prudent Employer".
+The seminars were intended "primarily for company lawyers, solicitors, insurance claims and risk assessors, safety officers, medical officers and others with interests in occupational hearing loss".
+The notes were, the judge said, strong evidence of the prevailing advice being given to people in industry concerned with noise at that time.
+They described the 1972 Guidelines as establishing a comprehensive "damage risk criterion" based on 90dB(A)lepd, and said that they had been actively promulgated by the Factory Inspectorate.
+In discussing the emerging principles of legal liability for noise induced hearing loss, the authors said: Over the last 15 years knowledge as to the relationship between noise and deafness has grown and become more precise .
+Today a reasonable employer ought to know that to expose an employee to noise in excess of 90dB(A) for eight hours or its equivalent is potentially hazardous.
+It also seems a fair assumption that the reasonable employer should have known of the criteria set out in "Noise in Factories" and "Noise and the Worker" by the mid 1960s." The introduction in 1974 and continuance in force at all times thereafter of woodworking and tractor regulations based on maximum exposures of 90dB(A) reinforce this comment (para 15, above, and para 56, below).
+At least until the mid 1980s, there were still many people employed in industry exposed to over 90dB(A)lepd, and the approach of enforcement agencies and others was to concentrate on them (HHJ Inglis, para 48).
+The expert evidence before the judge also included the following, summarised by him in paras 46 48: 46.
+There was evidence given by the expert witness engineers for Courtaulds (Mr Bramer and Mr Currie) about the approach to control of noise in the period from the 1970s in industry.
+The report of Mr Worthington for Pretty Polly and Guy Warwick is also in evidence.
+To Mr Bramer, the guidance in Noise and the Worker and the 1972 Guidelines provided a clear and consistent recommendation to employers as to how they ought to deal with noise in the workplace.
+The result was that in his practice, his invariable advice until the late 1980s, was that the relevant level was a daily personal noise exposure of 90dB(A).
+This approach, he said, was standard during the period up to 1989 among noise professionals, and taught at training courses.
+In the mid 1980s, when it appeared that EEC regulation would involve a first action level of 85dB(A) his advice changed to reflect that.
+He was not aware of the NPL tables before the 1980s when he found that they were being used by medical experts writing reports for the purpose of deafness claims.
+He has never come across them being used in any part of industry.
+In evidence Mr Bramer said that he gave advice to employers in terms of complying with the 1972 Code.
+He was speaking to the 90dB(A) level, as were all his colleagues.
+He agreed that the advice would be to answer the question Tell us how to comply with legislation and the Code of Practice, rather than Tell me how to avoid reasonably foreseeable risk to my workforce.
+He would have recommended 90dB(A) as the cut off point, but would also have said that does not actually stop some more susceptible people from having some small noise induced hearing loss.
+If asked about risk, he would have had some difficulty, and regarded the question as more one for medical people. 47.
+Mr Currie said that the Health and Safety Executive and factory inspectors after the Health and Safety at Work etc Act 1974 concentrated their advice and enforcement on the 90dB(A) level.
+He was not aware of any instance in which the NPL tables had been used by employers to predict the level of risk for their workforce.
+In evidence Mr Currie said that good practice won't necessarily remove all risk.
+He agreed that there has been no very different understanding about noise induced hearing loss since the 1970s.
+The first thing to look at when deciding on practices, which is what employers have to do, is to look at the guidance available.
+Mr Worthington's report is to the effect that employers looked to the 90dB(A) limit in the Code of Practice as the maximum acceptable limit, and that the Factory Inspectorate and HSE did not refer employers to the risks below that limit as risks about which they should take action.
+That was the practice of the day, and employers taking advice, if they did, would be referred to the standard in the Code as being what had to be observed. 48.
+It is clear from some of the documents referred to above that by the beginning of the 1980s there were still many people employed in industry exposed over 90dB(A)lepd, and that the approach of enforcement agencies was to concentrate on those people.
+The evidence of the engineers referred to above suggests that that was a common approach until at least into the mid 1980s.
+That the 90dB(A)lepd level was regarded, as is the effect of the evidence of the engineers referred to above, in industry as the touchstone of reasonable standards that should be attained is evidenced by notes published by the Wolfson Unit for Noise and Vibration Control in the University of Southampton in 1976.
+Mr Bramer and Mr Currie were independent engineers called as witnesses at trial.
+There is no suggestion that they were employed by or advisers to Courtaulds or any of the other employers involved in this case at any date relevant to liability in this litigation.
+The judge was clearly impressed by their evidence.
+Whatever critique might, with hindsight, be directed at the advice or approach they said was being given or taken in respect of employers does not alter the fact that this was the contemporaneous advice and approach, upon which the judge found that reasonable employers could generally rely, unless they fell into his category of employers with greater than average knowledge.
+The Court of Appeal attached considerable relevance to employers awareness of the first draft directive prepared by the Commission in October 1982.
+As I have observed, the court did not accurately place the position of this directive in the development of legislation at the European level (para 15 above).
+More importantly, a Commission draft is only a proposal for legislation by the Council of Ministers, and no reliance was or is placed on any underlying material which may, or may not, have been produced in its preparation or support.
+The first draft directive was proposed by the Commission as a basis for legislation in 1982, proved controversial, and was withdrawn in 1984.
+It was superseded by a differently framed legislative proposal, agreed by the Council of Ministers in May 1986, which gave member states until 1 January 1990 to bring into force provisions complying with the directive.
+In the light of the above, there is, in my opinion, no basis for the court to disturb the judges conclusion in para 87 that the Code of Practice was an 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.
+Before leaving this aspect, it is also worth noting one further small indication of the consistency of the judges conclusion with informed contemporary attitudes.
+The relevant level of noise exposure above which a reasonable employer should take protective steps was of direct relevance in the early case of noise induced hearing loss, Kellett v British Rail Engineering Ltd (Popplewell J, 3 May 1984).
+The strength of the representation attests to the importance attached to the issues.
+On the facts and in the light of agreed expert evidence, Popplewell J recorded that there had been exposure for long periods initially in the period 1946 to 1955 below 90dB(A) and then in the period 1955 to 1979 above 90dB(A), and proceeded on the basis that The level of 90 is generally recognised as being a figure above which it is necessary for precautions to be taken.
+That was the basis on which it was accepted that the defendants, who had taken no precautions until 1979, were negligent. (c) What period should be allowed for implementation of any different standard?
+It follows, in relation to all the employers before the court, that the date when they should have been aware that it was no longer acceptable simply to comply with the Code of Practice was the date identified by the judge as applicable to Quantum and Guy Warwick, that is the time when the terms of the 1986 directive became generally known in the consultative document of 1987 (para 87).
+Dealing with this point, Smith LJ said (para 105): I consider that, for the employer with the ordinary or average degree of knowledge, the judge's conclusion that that period came to an end in 1987, following publication of the second European draft directive, was a reasonable conclusion Adding a further six to nine months for implementing protective measures (instead of the judges period of two years), she went on to conclude (para 106) that: In case it should ever become material, I would fix the date for breach of common law duty for the average employer at January 1988.
+Leaving aside for the moment the difference in the period allowed for protective measures, that approach does not reflect the nuances of the judges finding.
+The consultative document was issued in 1987, but seeking responses no later than 30 June 1988.
+Its terms would have become generally known during the period of consultation, which was to last to 30 June 1988.
+The judge was prepared to add a period of two years for putting a conservation programme into action, accompanied by information and instruction (para 88).
+This would bring the period before ear protection would have to be made available to those exposed to noise levels over 85dB(A)lepd to 1 January 1990, the date when the Directive and Regulations under it anyway required such protection to be made available to them.
+I therefore understand the judge as having held that Quantum and Guy Warwick had no potential common law liability in negligence before 1 January 1990.
+The judge, in taking two years as the appropriate period for putting a conservation programme into action, accompanied by information and instruction, referred to a further passage in Thompson.
+Mustill J there said (pp 423 424): From what date would a reasonable employer, with proper but not extraordinary solicitude for the welfare of his workers, have identified the problem of excessive noise in his yard, recognised that it was capable of solution, found a possible solution, weighed up the potential advantages and disadvantages of that solution, decided to adopt it, acquired a supply of the protectors, set in train the programme of education necessary to persuade the men and their representatives that the system was useful and not potentially deleterious, experimented with the system, and finally put it into full effect? This question is not capable of an accurate answer: and indeed none is needed, as will appear when the scientific aspects of the case are considered.
+Various years were selected as rough markers, for the purpose of argument.
+I reject without hesitation the notion that the date lay somewhere in the years immediately preceding and following the Second World War.
+It was not until 1951, with the inconspicuous entry of the V 51R into the United Kingdom market that even a really enlightened employer would have started to ask himself whether something could be done.
+Even then, I consider that it pitches the standard of care too high to say that an employer would have been negligent, from that date, in failing to find, decide upon, and put into effect a system of using the protectors then available.
+At the other extreme, I consider that the choice of a date as late as 1973 cannot be sustained.
+The problem, and the existence of different ways in which it might have been combated, had been well known for years; there had been devices which were both reasonably effective, and reasonably easy to wear; and if the employers did not know precisely what they were they would have had no difficulty in finding out.
+All this being so, I conclude that the year 1963 marked the dividing line between a reasonable (if not consciously adopted) policy of following the same line of inaction as other employers in the trade, and a failure to be sufficiently alert and active to measure up to the standards laid down in the reported cases.
+After the publication of Noise and the Worker there was no excuse for ignorance.
+Given the availability of Billesholm wool and reasonably effective ear muffs, there was no lack of a remedy.
+From that point, the defendants, by offering their employees nothing, were in breach of duty at common law.
+The Court of Appeal disagreed with HHJ Ingliss period of two years on the basis that he was allowing time not merely for the provision of ear protectors but also for the noise measurement and policy decisions which preceded the actual provision of protection and that, by the time when employers should have appreciated the need for noise protection below 90dB(A), they must be taken to have known already to which workshops that applied (para 106).
+In paras 32 and 48 of her judgment, Smith LJ also noted that Courtaulds noise committee had over a period of a year (between March 1983 and March 1984: see para 52 of HHJ Ingliss judgment) identified areas of over 90dB(A)lepd and areas of 85 to 90dB(A)lepd.
+There is a paucity of evidence in this area of the case.
+It is common ground that some period should be allowed, and the period chosen by the judge fits with periods chosen by courts in other contexts see e.g. Armstrong v British Coal Corporation [1998] CLY 975, para 2842, Smith v Wright & Beyer Ltd [2001] EWCA Civ 1069, para 6, and Brookes v South Yorkshire Passenger Transport Executive [2005] EWCA Civ 452, paras 22 23 (and, less clearly on this point, Doherty v Rugby Joinery (UK) Ltd [2004] EWCA Civ 147; [2004] ICR 1272, paras 21 and 33 35) as well as with periods commonly allowed for the implementation of new health or safety measures, e.g. under Directive 86/188/EEC and the Noise at Work Regulations 1989 which gave effect to it domestically.
+I do not see how it can be said that all employers who exposed their employees to noise levels between 85 and 90dB(A)lepd up to the end of 1987 must, Smith LJs words (para 106) by that time be taken to have known already to which workshops the provisions of the Directive and Regulations would apply.
+An employers duty towards a particular employee depends upon the circumstances of that particular employees employment.
+Smith LJ appears to have derived the duty to have measured noise levels from the fact or likelihood that there were other employees exposed elsewhere by the relevant employers to noise levels exceeding 90dB(A)lepd (paras 92 93).
+But the relevant circumstance is that none of the employees to whom this case relates were employed in circumstances where they were exposed to noise levels exceeding 90dB(A)lepd.
+Accordingly, the relevant employers were not, on the judges findings, under any duty to take further steps.
+The Code of Practice only stipulated that All places where it is considered the limit in section 4 may be exceeded should be surveyed (section 5.1.1).
+The limit referred to in section 4 for continuous exposure was that If exposure is continued for eight hours in any one day, and is to a reasonably steady sound, the sound level should not exceed 90dB(A) (section 4.3.1).
+I do not therefore consider that the basis on which the Court of Appeal interfered with the judges conclusion on this point was justified.
+Had my view prevailed that Courtaulds were in no significantly different position from Quantum and Guy Warwick as regards the date when they should have taken further steps to protect employees against the risk of hearing loss, I would still have held Courtaulds position to differ in one material respect.
+At this point it would have been relevant that they were to some extent already ploughing a lone furrow.
+By mid 1984 they had in fact undertaken the relevant noise surveys and they already knew to which workshops the issue of exposure between 85 and 90dB(A)lepd applied.
+Accordingly, in relation to Courtaulds alone, I would have seen force in the view that a period of no more than nine months was long enough to perfect such steps as they were already contemplating.
+Bearing in mind that the consultation paper, on which the judge based the date by reference to which employers generally should have begun to take action, was open for responses until mid 1988, I would have taken the end of 1988 as the latest date by when Courtaulds should have had full and effective protective measures in place for employees exposed to noise between 85 and 90dB(A)lepd.
+But since (as stated in paragraph 25 above) the judges view will prevail that Courtaulds were (along with Pretty Polly) in a special position, and should have acted to take further steps from the start of 1983, they too must in my view be entitled to the two years allowed by the judge for the actual implementation of such steps, making them liable as the judge held from the start of 1985.
+The Factories Act 1961
+In relation to the scope and application of section 29(1) (set out in para 11 above), the Court of Appeal disagreed substantially from the judge, holding that the section involves a significantly more stringent standard of liability than any arising at common law.
+Several important issues arise on which there is no prior authority at the highest level: whether section 29(1) applies at all, where the claim relates not simply to the workplace, but to activities carried on at it; whether it applies to risks of noise induced hearing loss arising from such activities in relation to long term employees working in the place; whether the safety of a place is an absolute and unchanging concept or a relative concept, the practical implications of which may change with time; and what is meant by so far as is reasonably practicable and how it relates to the concept of safety.
+(i) Lack of safety arising from activities
+The first issue concerns the extent to which a place can be rendered unsafe by activities carried on at it.
+The appellants rely on the background to section 29(1) to argue that it cannot.
+Section 29 re enacts section 26 of the Factories Act 1937, as amended by section 5 of the Factories Act 1959.
+Section 26, as originally enacted, did not have wording corresponding with the second part of section 29(1).
+The words and every such place shall, so far as is reasonably practicable, be made and kept safe for any person working there were added by section 5 of the 1959 Act.
+The amendment adding them was proposed late in the passage of the bill.
+It was felt to be a real fault and a gap in the existing legislation that it covered only the means of access to, and not the safety of, the place of work.
+The Minister, Mr Macleod, accepted the idea, and, ultimately accepted in substance the whole amendment (House of Commons Standing Committee B, 12 March 1959, 17th Sitting, cols 747 752).
+There had been a series of prior cases in which courts had had to distinguish, less than happily, between the place of work and means of access to it, and to reject claims on, for example, the ground that the employee was injured at his workplace on his way to the lavatory, rather than on his way to his workplace: see Davies v de Havilland Aircraft Co Ltd [1951] 1 KB 50; Rose v Colvilles Ltd 1950 SLT (Notes) 72; Dorman Long & Co Ltd v Hillier [1951] 1All ER 357 and Prince v Carrier Engineering Co Ltd [1955] 1 Lloyds Rep 401.
+Looking at the matter today, one might perhaps have expected responsibility for the safety of the workplace to be a subject for legislative attention even before responsibility for the means of access to it.
+But, for whatever reason, that was not the original statutory scheme.
+The gap was filled by the 1959 amendment.
+In considering the scope of the words added, Mr Beloff QC, on behalf of the first appellant, submits that the means of access looks to physical dangers or obstructions, that section 29(2) is likewise clearly focused on the physical risks inherent in working at height, and that the whole section is part of a scheme of criminal liability, from which any civil liability only follows by judicial interpretation (Taylor v Coalite Oils & Chemicals Ltd (1967) 3 KIR 315, 318, per Diplock LJ).
+This last point has some, though only limited, force, for two reasons.
+First, the criminal liability is under the Act imposed on the occupier or, in certain cases not presently relevant, on the owner of the factory.
+That to my mind suggests that responsibility under section 29 is likely to attach to matters over which an occupier (typically of course the employer him or itself) would be expected to have control.
+But such matters would include not merely the physical state of the premises, but also, at least, the carrying on there of regular activities.
+Secondly, a person is not to be put in peril upon an ambiguity, however much the purpose of the Act appeals to the predilection of the court (London and North Eastern Railway Co v Berriman [1946] AC 278, 313 314, per Lord Simonds).
+However, it is only if the section is ambiguous, unclear or open to two reasonable interpretations that its penal effect may indicate the narrower construction (Franklin v Gramophone Co Ltd [1948] 1 KB 542, 557, per Somervell LJ), and courts should remember that the Factories Act is a remedial measure passed for the protection of the workmen [which] must, therefore, be read so as to effect its object so far as the wording fairly and reasonably permits (Harrison v National Coal Board [1951] AC 639, 650, per Lord Porter; McCarthy v Coldair Ltd [1951] 2 TLR 1226, per Denning LJ).
+Mr Beloff is however also right to remind the Court that it is always necessary to consider in what respects and to what extent the Act involves remedial measures.
+Mr Beloff QC submits that there are three possible interpretations of section 29(1): a minimalist, a maximalist and a middle way.
+The minimalist would involve treating the section as confined to intrinsic aspects of the physical place, ignoring any activities carried on there.
+With the possible exception of the Delphic rejection of the claim under section 29 by Mustill J in Thompson at p 449C D, there appears to be no reported case rejecting a claim under that section on this basis.
+Reference was made to the interpretation given to section 25(1) and by extension section 26(1) of the 1937 Act: in Latimer v AEC Ltd [1953] AC 643, the House held that section 25(1), which in its then form provided: All floors, steps, stairs, passages and gangways shall be of sound construction and properly maintained, was not breached when a structurally sound factory floor became wet and oily after a flood due to an unusually heavy rainstorm; and that approach was then applied under section 26(1) in Levesley v Thomas Firth & John Brown Ltd [1953] 1 WLR 1206 (CA), where in the course of some loading operations a block of iron was left temporarily protruding three inches out into a gangway, used as a means of access.
+This restriction of the word maintained in relation to the means of access has been strongly criticised in successive editions of Munkmans Employers Liability at Common Law, and there is no reason to extend it to the words be made and kept safe which govern the duty, first introduced in 1959, in relation to the safety of the workplace.
+Indeed, it is clear from the Parliamentary materials that the words and kept were introduced specifically with the Latimer case in mind, and to make clear that employers should so conduct their business as to see that a workplace did not become unsafe.
+The examples were given of overstocking or slippery substances left on the floor (Factories Bill, Standing Committee B, 12 March 1959, cols 749 750).
+A workplace may therefore be unsafe because of some feature which is neither structural nor permanent.
+But this does not determine whether a workplace may be unsafe by reason of operations carried on in or at it.
+Mr Beloff submits that the law took a wrong turn in Evans v Sant [1975] QB 626, when the Divisional Court initiated what he described as a middle approach which was later followed by the Court of Appeal in Wilson v Wallpaper Manufacturers [1982] CLY para 1364 and Homer v Sandwell Castings Ltd [1995] PIQR P318.
+In Evans v Sant, the Divisional Court (Lord Widgery CJ, Bridge and Shaw JJ), on a case stated by magistrates after conviction, said that the guiding light in their approach was that in deciding whether the place of work was made safe, it is the place qua place that we look at, and not the place qua operation carried on upon the place (p 635G H).
+But Lord Widgery CJ then went on (pp 635H 636B) That does not mean of course that in deciding whether the place is made safe one has total disregard for the activities which go on in the place itself.
+The safety of the place depends not simply on the construction of the floor or the solidity of the walls, but it also depends in some degree upon the nature of the operations carried on therein.
+In so far as there is permanent equipment in the place, then its safety can in my judgment reflect on the safety of the place.
+In so far as there are activities carried on in the place which are constant, regular and recurring, I can well see that they may have their impact on the question of whether the place has been made safe.
+In Evans v Sant, even this relaxed or middle approach did not enable the prosecution to succeed.
+The facts were that, in the course of laying a water main, a test head was attached between the pipe and a pump to test the water pressure, but it was insecurely fitted and, as pressure built up, it blew off, causing the death of a workman who ran into the path of a passing car.
+In allowing the defendants appeal against conviction, Widgery CJ said, at p 636, that: where, as in the present case, you start with a place safe in every degree, and the only thing which renders it unsafe is the fact that equipment brought upon it for a particular operation, and being used for a particular operation on a particular day, produces an element of danger, it seems to me that that is not enough to justify the allegation, certainly in criminal proceedings, that the place itself has not been made safe.
+In Homer v Sandwell Castings Ltd, a civil claim failed because the danger did not arise from any static condition of the place of work, but arose from the operation upon which the plaintiff was engaged (p 320, per Russell LJ).
+The employee had noticed a slight leak through sand paste, which he had himself introduced to seal a gap, but had carried on working, with the result that an eruption of molten metal through the seal fell onto his foot.
+The appellants support their case on section 29(1) by reference to the layout as well as other specific sections of the 1961 Act.
+These, they submit, are only consistent with a limited interpretation, confining it to physical dangers inherent in the structure.
+They point out that section 55 addresses any process or work carried on or to be carried on in any premises used or intended to be used as a factory; it gives a magistrates court power, if satisfied that such process or work cannot be so carried on with due regard to the safety, health and welfare of the persons employed, to prohibit the use of the premises for that process or work.
+They also point to various other sections designed to address problems arising from operations carried on in premises.
+For example section 4 requires suitable and effective provision for circulation of fresh air, and for rendering harmless, so far as practicable, all such fumes, dust and other impurities generated in the course of any process or work carried on in the factory as may be injurious to health; section 14 requires (with immaterial exceptions) Every dangerous part of any machinery [to] be securely fenced unless it is in such a position or of such construction as to be as safe to every person employed or working on the premises as it would be if securely fenced; and section 27 requires all parts and working gear to be of good construction, sound material, adequate strength and free from patent defect, and properly maintained.
+However, the sections of the Act are not exclusive codes in relation to their particular subject matters (see e.g. Liptrot v British Railways Board [1969] 1 AC 136), and it is not axiomatic that there cannot be overlap between the application of two different sections.
+It seems to me good sense to describe a workplace as unsafe, if operations constantly and regularly carried on in it make it so.
+It is unnecessary to comment on the decisions on particular facts, but section 29(1) cannot in my opinion have a narrower meaning than that given it in Evans v Sant and the later cases following Evans v Sant.
+To take another example, a place may well, as it seems to me, be unsafe by reason of activities carried on in it, e.g. if a shop floor were to be constantly crossed by fork lift trucks passing from a store on one side to somewhere else on the other side of it.
+In the present case, the noise generated by knitting and other machines was a permanent feature of the operations which were intrinsic to the workplace.
+If the section is directed to noise at all, then such noise must, on the approach taken in Evans v Sant, make the place unsafe.
+It is unnecessary to say more on the facts of this case.
+(ii) Lack of safety arising from noise
+The second issue is whether section 29 is directed to noise.
+This is more open to question.
+There is much to suggest that noise was not in the legislatures mind at all, when section 26(1) of the 1937 Act was expanded to cover the safety of the workplace in 1959 and later re enacted as section 29(1) of the 1961 Act.
+Further, the relevant noise is not noise of a literally deafening nature, causing immediate injury.
+It is noise which would only injure some people and then only if they were exposed to it for continuous periods lasting many years.
+The appellants submit that a requirement that the workplace be made and kept safe for any person working there is inapt to cover a situation where many or all of the persons working there may never be at any risk, because they have not been there long enough and may never be, or because they may not be susceptible to suffering such noise induced hearing loss.
+The appellants further submit that the fact that the principal protective measure suggested consists in the provision of ear protectors, rather than any corrective measures affecting the workplace itself or any regular feature of it, indicates or suggests that section 29(1) is inapplicable.
+I am not impressed by this point.
+If a workplace can be unsafe for employees by reason of constant and regular activities carried on at it, I do not see why it should not be rendered safe by counter acting measures of an equally constant and regular nature relating to the clothes or equipment worn by employees.
+On the other hand, the scheme of the 1961 Act does indicate that, even though section 29(1) is to be read as indicated in Evans v Sant, it is essentially dealing with safety, rather than health.
+Safety typically covers accidents.
+Health covers longer term and more insidious disease, infirmity or injury to well being suffered by an employee.
+Hearing loss, at least of the nature presently in issue, falls most naturally into this latter category.
+The 1961 Act is divided into Parts, the first four being headed (I) Health (General Provisions), (II) Safety (General Provisions), (III) Welfare (General Provisions) and (IV) Health, Safety and Welfare (Special Provisions and Regulations).
+Part I comprising sections 1 to 11 deals with cleanliness, overcrowding, temperature, ventilation, lighting, drainage of floors, sanitary conveniences, and enforcement powers; while Part II contains, in addition to section 29, a wide variety of sections covering inter alia machinery, dangerous substances, hoists, lifts, openings and doorways, chains, ropes, lifting apparatus, floors, passages and stairs, fumes and lack of oxygen in confined spaces, explosive or inflammable dust, vapour or substance, boilers, means of escape and fire.
+The general distinction between health and safety provisions was also present in the 1937 Act, and significance was attached to it in Clifford v Charles H Challen & Son Ltd [1951] 1 KB 495, 498, per Denning LJ and Ebbs v James Whitson & Co Ltd [1952] 2 QB 877, 886, per Hodson LJ.
+As to the legislative mind set in 1959 and 1961, the government promoting the 1959 Act made no mention of noise.
+The only relevant reference to noise by any MP in debate concerned the possibility that the minister might take advice on and look more closely at noise, with a view to making regulations under section 60 of the 1937 Act as amended (later section 76 of the 1961 Act), enabling the minister to make regulations where satisfied that, inter alia, any process was of such a nature as to cause risk of bodily injury.
+Likewise, when the Offices, Shops and Railways Premises Bill came before Parliament in November 1962 and March 1963, comments were made on the absence of any provision dealing with noise.
+Initially, the minister directed attention to the general power to make regulations for securing health and safety, but ultimately section 21 was included, specifically permitting regulations to protect from risks of bodily injury or injury to health arising from noise or vibrations.
+The minister in the House of Lords commented on section 21: This is a new subject, on which we still have much to learn (House of Commons, 2nd reading, 15 November 1962, Hansard cols 615, 618 619 and House of Lords 2nd reading, 18 March 1963, Hansard, col 948).
+It was not until April 1960 that Sir Alan Wilsons committee was set up to report on noise, and only in March and July 1963 that it issued interim and final reports.
+The main focus was on ambient noise and, in discussing the general effects of noise in chapter II, the report said, in relation to noise in a working environment, merely that it may disturb concentration, and perhaps affect the efficiency of someone working at a difficult or skilful task; it may affect personal safety.
+In outlining the law relating to noise in chapter III, the report identified the common law of nuisance and the Noise Abatement Act 1960.
+However, chapter XIII addressed occupational exposure to high levels of noise.
+It noted that it had been established that a permanent reduction of hearing sensitivity can occur in people who are exposed for long periods to noisy environments, such as are found in some industries (para 513).
+But it made clear the understanding that there was no existing legislation applicable to such noise and no sufficient basis for introducing any without further research.
+It said (para 534): Although voluntary action is now possible and, indeed, essential, we do not consider that the present knowledge of this complex problem provides a sufficient basis for legislation.
+Although the levels of continuous, broadband noise which represent a hazard to the hearing of people who are exposed to them for long, unbroken periods have been established within certain margins of error, many uncertainties remain.
+There is no satisfactory means of predicting the susceptibility of individuals to hearing loss, nor is the distribution of susceptibility known; the comparative danger of noises in which energy is concentrated in narrow frequency bands is not determined; nor is the influence on hearing loss of impulsive noises, which are common in industry.
+Neither is there much information on the physical properties of industrial noise, the distribution of noise of any given type in industry and the practicability of minimising those properties which are found to be dangerous to hearing.
+If early legislation were introduced it could do no more than lay down general standards, the effect and cost of which cannot at present be estimated.
+If the standards adopted proved to be too severe in some respects the industries affected might be exposed to heavy unnecessary expenditure; on the other hand if minimum standards were adopted, these would tend to suggest that compliance with these standards was all that was needed even in parts of industry where there were important hazards at lower sound pressure levels or with shorter exposure.
+Legislative insistence on the wearing of ear protectors would be particularly difficult to introduce until there is a wider recognition of the need for them in noisy industries.
+Early legislation would, therefore, have to be very general in its terms and it would be impossible to enforce effectively.
+We think that, at present, it would not achieve as much as vigorous voluntary action.
+In our view, before practical legislation could be considered, it would be necessary to establish the extent of the risk to average people of exposure to industrial noise, and the cost and possibility of measures which would effectively reduce this risk to the point which, on balance, was regarded as acceptable.
+In paras 535 536, the report suggested a further research programme, to be followed by more detailed surveys of individual industries and processes, and then, when the results of such surveys were available, consideration by government whether the time has not then come to lay down by legislation minimum standards to protect workers against damaging noise exposure in industry.
+The Annual Report of HM Chief Inspector of Factories on Industrial Health for 1965 (Cmnd. 3081) also stated at p 79 that At present there is no legislation requiring the control of noise in factories, nor is occupational deafness prescribed under the National Insurance (Industrial Injuries) Act 1965.
+The problem was examined in detail by the Wilson Committee, whose report was published in 1963.
+They concluded that the knowledge then existing was insufficient to enable legislation to be made.
+They advocated research and indicated some of the lines this should take.
+At present a very great deal of research is being conducted by various bodies.
+The Report of a Committee chaired by Lord Robens in 1970 72 (Cmnd 5034) referred to the Wilson Committees words (para 341), but went on to record the research recorded in Prof Burnss and Dr Robinsons 1970 report, Hearing and Noise in Industry.
+The research had established a system of predicting on a statistical basis the hearing deterioration to be expected for specified exposures within a wide range of industrial noise and the report had amongst other things suggested that workers should not be consistently exposed over long periods to a noise emission level higher than 90dB(A) (para 342).
+Robens then mentioned that industrial noise had now become a live issue in the field of compensation claims, referring to a case where a court awarded damages for the first time (para 344).
+This must have been Berry v Stone Manganese and Marine Ltd [1972] 1 Lloyds Rep 182, where a claim for common law negligence succeeded in respect of noise which amounted to about 115 to 120 decibels, whereas the tolerable noise is about 90 and no ear muffs had been provided (p 184).
+A claim under section 29(1) was in fact also introduced by amendment at trial.
+It was not argued on the basis of failure to provide ear muffs, but of alleged failure to reduce the actual noise level as far as reasonably practicable, and it failed on the facts.
+Robens continued that, since the relationship between exposure to certain levels of noise and hearing loss [was] now recognised the time was ripe to include basic requirements on noise control in occupational safety and health legislation (para 345).
+Lord Robenss recommendation stimulated the inclusion of regulation 44 in the Woodworking Machines Regulations 1974 (SI 1974/903) made under section 76 of the 1961 Act.
+In relation to factories using woodworking machines, regulation 44 requires that, where on any day any person employed is likely to be exposed continuously for eight hours to a sound level of 90dB(A) or equivalent or greater, then (i) such measures as are reasonably practicable shall be taken to reduce noise to the greatest extent which is reasonably practicable; and (ii) suitable ear protectors shall be provided and made readily available for the use of every such person.
+Later in 1974, there were also made, under agricultural health and safety legislation, the Agriculture (Tractor Cabs) Regulations 1974 (SI 1974/2034), regulation 3(3) of which provided that ministerial approval of safety cabs required ministers to be satisfied that the noise levels inside would not be more than 90dB(A).
+The existence of specific regulations under section 76 is not necessarily inconsistent with a more general duty of safety existing in respect of noise under section 29(1), though the inter relationship could give rise to problems and one might have expected or at least hoped that it would be clarified.
+HM Chief Inspector of Factories report for 1974 (Cmnd 6322) referred to the Woodworking Machines Regulations 1974 as the first British regulations to contain a legal requirement specifically intended to protect factory workers against the effects of noise (p 73).
+Under the heading of Noise and Vibration, it also noted (p 71) that The Inspectorate has been mainly concerned with protection of workers against levels of noise exposure likely to cause permanent hearing damage.
+To this end continuing efforts have been made to encourage voluntary compliance with the Code of Practice , which recommends that where people are likely to be exposed to sound levels over 90dB(A) for eight hours per day (or to suffer an equivalent exposure) action should be taken to reduce the noise exposure, and ensure that ear protection is provided and used.
+The position is therefore that section 29(1) is part of the statutory provisions dealing with safety, and it was enacted without any appreciation that it could cover noise or noise induced hearing loss.
+Noise induced hearing loss was not a newly discovered phenomenon, at least in heavy industry, where it was evidently regarded as an inescapable fact of life (see e.g. Thompson, p 409A, per Mustill J).
+An immediately injuring noise (like that which punctured the Duke of Wellingtons ear drum when he stood too close to the firing of a battery in his honour) could probably only occur as a result of some one off error or break down in the workplace, which would not reflect on its safety, although it could give rise to common law liability in negligence.
+None of the contemporary reports or documents suggests that the possibility of noise was in anyones mind or would have been conceived of as an element of safety of the workplace in 1959 or 1961.
+It follows that there is considerable force in the appellants submission that section 29(1) does not refer to safety in a sense depending not upon the current condition of the workplace with its noisy machinery, but upon the periods for which employees have worked, or are likely to continue to work in that, or another, workplace with equivalent or greater noise levels and upon their particular susceptibility to noise.
+Ultimately, however, I have come to the conclusion that it is not possible to be so categorical, and that the answer to the present issue links up with the next issue, that is how far responsibility under section 29(1) is absolute or relative.
+If section 29(1) imposes absolute liability, irrespective in particular of current attitudes or standards from time to time, then noise induced loss appears so far outside the thinking behind and aim of section 29(1) that I doubt whether it would be right to construe the section as covering it.
+But if liability under section 29(1) is relative, depending in particular on knowledge about and attitudes to safety from time to time, then, as thinking develops, the safety of a workplace may embrace matters which were previously disregarded, but have now become central or relevant to reasonable employers and employees view of safety.
+(iii) The absolute or relative nature of safety
+The third issue is whether the requirements regarding safety in section 29(1) are absolute or relative.
+In the respondents submission, they are absolute: what is safe is objective, unchanging and independent of any foresight of injury; the only qualification on an employers liability, where a workplace is unsafe because of employees exposure to noise, is if the employer can show that it was not reasonably practicable to reduce or avoid the exposure, e.g. by providing ear protectors.
+The House of Lords, by a majority, held in Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107 that the onus lies on the employer to plead and prove under section 29(1) that it was not reasonably practicable to make and keep a place safe.
+Smith LJ accepted the submission that safety is an absolute.
+She said that what is objectively unsafe cannot change with time (para 78).
+She also associated lack of safety with the occurrence of injury to a single person, for she continued: If 85dB(A)lepd causes deafness to a particular claimant, that claimants place of work was not safe for him or her.
+It might have been safe for another person working alongside.
+But for the susceptible worker who has in fact been damaged, it can be demonstrated, without more, that his or her place of work was not safe.
+Looking at matters from the point of view of the work force generally, it is known that a minority of people will suffer appreciable harm as the result of prolonged exposure to 85dB(A)lepd.
+Therefore, it can be said that the place of work is not safe for the workforce because there is a risk of injury to all of them.
+I do not accept this approach.
+Whether a place is safe involves a judgment, one which is objectively assessed of course, but by reference to the knowledge and standards of the time.
+There is no such thing as an unchanging concept of safety.
+The Court of Appeals approach means in reality that any court determining an issue of safety would be applying (retrospectively) whatever happened to be the view of safety current at the time the matter came before it.
+Further, the fact that a single person has suffered injury due to some feature of the workplace is not, without more, proof that the workplace was unsafe.
+As Lord Upjohn (one of the majority) said in Nimmo (p 126C D), the section requires the occupier to make it [the workplace] 100 per cent safe (judged of course by a reasonable standard of care) if that is reasonably practicable and, if it is not, to make it as safe so far as is reasonably practicable to a lower percentage.
+Prior to the 1959 and 1961 Acts, the requirement, under regulation 5 of the Building (Safety, Health and Welfare) Regulations 1948 (SI 1948/1145), that sufficient safe means of access shall so far as is reasonably practicable be provided, had been considered in Sheppey v Matthew T Shaw & Co Ltd [1952] 1 TLR 1272 and Trott v WE Smith (Erectors) Ltd [1957] 1 WLR 1154 (CA).
+There it was said, by respectively Parker J at p 1274 and Jenkins LJ at p 1159, that safe cannot mean absolutely safe, although it must take account of circumstances likely to occur, including the fact that employees do not always behave with reasonable care for their own safety.
+I also note that in Trott, Jenkins LJ after suggesting that the statutory obligation was stricter than the general duty of reasonable care at common law and anticipating Nimmo by identifying the qualification so far as is reasonably practicable as involving a shift of the burden of proof (pp 1158 59), ended his judgment by saying that to regard the standard of care prescribed by regulation 5 and at common law as approximating to each other was if not absolutely right . at all events not very far wrong (p 1162).
+Likewise, in relation to a similar requirement under the Shipbuilding and Ship repairing Regulations 1960 (SI 1960/1932), it was argued in Paramor v Dover Harbour Board [1967] 2 Lloyds Rep 107 that if the bare possibility of injury and accident could reasonably be foreseen, then the means of access is not safe.
+In response, Salmon LJ said (p 109) that there is, of course, a risk of injury and accident inherent in every human operation but that whether a means of access was safe involved assessing the risk in all the circumstances of the case and must be a question of fact and degree in each case.
+The successor legislation to the 1961 Act, the Health and Safety at Work Act etc 1974 was differently, and on its face more broadly, formulated.
+It required every employer by section 2(1) to ensure, so far as is reasonably practicable, the health, safety and welfare of all his employees, and by section 3(1) to conduct his undertaking in such a way that other persons were not thereby exposed to risks to their health or safety.
+The concept of safety was considered in this context in R v Chargot Ltd (trading as Contract Services) [2008] UKHL 73 [2009] 1 WLR 1.
+Lord Hope, with whose speech all other members of the House agreed, said that the legislation was not contemplating risks that are trivial or fanciful, that the statutory framework was intended to be a constructive one, not excessively burdensome, that the law does not aim to create an environment that is entirely risk free and that the word risk which the statute uses is directed at situations where there is a material risk to health and safety, which any reasonable person would appreciate and take steps to guard against (para 27).
+It would be strange if the earlier, narrower formulation in section 29(1) had a more stringent effect.
+Similar comments to Lord Hopes had also been made in the earlier case of R (Junttan Oy) v Bristol Magistrates Court [2003] UKHL 55; [2003] ICR 1475, in relation to regulations requiring machinery to be in fact safe, safe being defined to mean giving rise to no risk (apart from one reduced to a minimum) of its endangering the health of or of its being the cause or occasion of death or injury to persons.
+Lords Nicholls and Hobhouse (both dissenting on presently immaterial points) made clear in that context that safe is not an absolute standard.
+Lord Nicholls said (para 22): There may be differences of view on whether the degree of safety of a particular piece of machinery is acceptable.
+Lord Hobhouse said (para 103) that: to describe questions of safety as simple questions of fact, just as if one was asking whether a given bird is a sparrow or a sparrowhawk, is to make a fundamental and elementary mistake.
+Safety is a question of opinion.
+There is no such thing as absolute safety.
+All safety is relative.
+Two men can legitimately hold different opinions [as to] whether a machine is safe or unsafe.
+Different assessments can be and are made of the safety of a particular machine by the authorities in different countries.
+If safety is a relative concept, then foreseeability must play a part in determining whether a place is or was safe.
+Mr Hendy submits that foresight has no such role; it can come in, if at all, only at the second stage, when considering whether it was reasonably practicable to make and keep the place safe.
+He also notes that there was in any event, on the judges findings, foresight in the present case of some statistical risk of injury.
+On the role of foresight, there are differing strands of authority.
+Not long before the 1959 Act, the House had in John Summers & Sons Ltd v Frost [1955] AC 740 considered the requirement under section 14(1) of the 1937 Act that Every dangerous part of any machinery shall be securely fenced unless it is in such a position or of such construction as to be as safe to every person employed or working on the premises as it would be if securely fenced, and had applied to the concept of dangerousness an approach dating back to Hindle v Birtwhistle [1897] 1 QB 192, namely that a machine or part is dangerous if in the ordinary course of human affairs danger may reasonably be anticipated from the use of them without protection, and that it was impossible to say that because an accident had happened once therefore the machine was dangerous.
+Lords Reid and Keith at pp 765 766 and 774 expressly endorsed the relevance of determining whether the degree of danger was such that there was a reasonably foreseeable cause of injury.
+The same approach, again based on Hindle v Birtwhistle, was followed under section 14 in Close v Steel Co of Wales Ltd [1962] AC 367.
+The claim there failed because in the ordinary course of human affairs danger could not reasonably be anticipated from the use of the drill unfenced (p 382, per Lord Denning, with whom Lord Morton agreed on this point at p 398); the risk of injury, serious and regrettable as it proved to be, was not reasonably foreseeable (p 389, per Lord Goddard); and No reasonable employer could have been expected to anticipate any risk of significant injury (p 412, per Lord Guest).
+Close proved controversial on another, presently irrelevant, aspect (whether the duty to fence extended to preventing fragments flying out of a machine) on which it was criticised in paragraph 7 of Appendix 7 to the Robens Report.
+But the endorsement in Close of the concept of foreseeability taken from Hindle v Birtwhistle was noted without criticism in paragraph 5 of Appendix 7 to the Robens Report and was regarded as correct by contemporaneous commentators in The Solicitors Journal (The Duty to fence dangerous machinery: (1961) 105 Sol J 997) and The Modern Law Review (New Wave of Interpretation of the Factories Acts: (1962) 25 MLR 98, commending the broad common sense view of danger taken in Hindle v Birtwhistle), though it was regretted by John Munkman, writing in The Law Journal (The Fencing of Machinery: (1962) LJ 761).
+The concept of foreseeability continued to be adopted by courts, most notably, in Taylor v Coalite Oils & Chemicals Ltd (1967) 3 KIR 315.
+In Allen v Avon Rubber Co Ltd [1986] ICR 695, the Court of Appeal also endorsed it under section 29(1) of the 1961 Act.
+In Taylor, Diplock LJ said, obiter (pp 319 320): Safe is the converse of dangerous.
+A working place is safe if there is nothing there which might be a reasonably foreseeable cause of injury to anyone working there, acting in a way in which a human being may reasonably be expected to act, in circumstances which may reasonably be expected to occur: see John Summers & Sons Ltd v Frost [1955] AC 740, per Lord Reid at p 766.
+In determining, therefore, whether the occupier was under a duty to take any measures to prevent an accident which was caused by the presence at a working place of a particular object, it is necessary to ask, first, whether the possibility of an object of that kind being at that particular place was reasonably foreseeable, and, if so, secondly, whether it was reasonably foreseeable that it would be a cause of injury to a person working there.
+It is only if both those questions are answered affirmatively that it becomes necessary to consider whether it was reasonably practicable to avert the danger.
+More recently, in Robb v Salamis (M & I) Ltd [2006] UKHL 56; [2007] ICR 175, Lord Hope confirmed the relevance of reasonable foreseeability to article 5(1) of the Framework Directive 89/391/EEC (imposing on employers the duty to ensure the safety and health of workers in every aspect related to the work) and article 3(1) of the Work Equipment Directive 89/655/EEC (requiring employers to take the measures necessary to ensure that the work equipment made available to workers is suitable for the work to be carried out), stating that The obligation is to anticipate situations which may give rise to accidents (para 24).
+The respondent relies on a different stream of authority, consisting of Robertson v RB Cowe & Co 1970 SLT 122, Larner v British Steel plc [1993] ICR 551, Neill v Greater Glasgow Health Board [1994] SLR 673, [1996] SC 185 and Mains v Uniroyal Englebert Tyres Ltd [1995] SC 518.
+The Court of Appeal in the present case held that it was bound by Larner, as well as expressing agreement with it.
+Robertson concerned a trestle erected on a marine slipway which moved causing a workman to fall.
+Lord Guthrie concluded from the whole circumstances elicited as to the position of the staging, the way in which the pursuer worked, the outward movement of the trestle, and where the pursuer fell that on a balance of probabilities the erection was insecure and unsafe (p 129).
+Lord Migdale treated the fact that the trestle fell over as proof that it was not safe, and both he and, with hesitation, Lord President Clyde concluded that the decision in Nimmo meant that breach of section 29(1) was established once it was proved that the trestle was not sufficiently stable to support a workman doing his job there normally.
+There was no plea that it was not reasonably practicable to make or keep the trestle safe, and Lord Guthrie noted the obvious difficulty that such a plea would have faced.
+Lords Guthrie and Migdale rejected a submission based on the line of authority including John Summers and Close, that the employee had to prove that the accident was reasonably foreseeable.
+The basic issue was whether the trestle was insecure as erected, or whether it fell because the pursuer over reached (pp 128 129).
+Larner concerned an undetected crack which caused a structure to fall on the plaintiff.
+The Court of Appeal preferred the reasoning in Robertson to Diplock LJs dicta in Taylor and rejected foreseeability as a test of safety.
+In Mains the injury arose when a piece of machinery made an involuntary and unexpected movement, the cause of which was never ascertained, and so trapped the workmans hand; and it was common ground that the circumstances of the accident and its cause were not reasonably foreseeable.
+The Inner House took the same view as in, and followed, Larner.
+In so far as Robertson, Larner and Mains stand for a proposition accepted by the Court of Appeal in the present case, that safety is an eternal absolute independent of any judgment based on current standards and attitudes, then I do not accept their correctness.
+One factor in the decisions in both Larner and Robertson was that the introduction of foreseeability would reduce the utility of the section, by frequently limiting success under it to circumstances in which a common law claim for negligence would succeed (Larner, p 560A, per Hirst LJ, and p 562C D, per Peter Gibson J; Mains, p 531D E, per Lord Sutherland and p 535G H and 536H 537B, per Lord Johnston).
+This begs the question as to the intended scope and effect of the section.
+Not only does the section introduce criminal sanctions, but, as established in Nimmo, if the workplace is unsafe, then the burden shifts to the employer to show that it was not reasonably practicable to make and keep it safe.
+It was in this connection that in Nimmo Lord Guest said that he could not think that the section was intended to place such a limited obligation on employers as they would have at common law (where it would be for an injured employee to plead and prove failure to take reasonably practicable steps) (p 122F G), and that Lord Upjohn (whose view that safety is judged of course by a reasonable standard I have already quoted in paragraph 64 above) added that it is not in doubt that the whole object of the Factories Act is to reinforce the common law obligation of the employer to take care for the safety of his workmen (p 125B).
+Further, section 29(1) imposes a non delegable duty, so that an employer is responsible for achieving or for the taking all reasonably practicable measures to achieve the requisite safety irrespective of whether he chooses to set about doing this through himself, his servants or independent contractors.
+There is nothing to show that section 29(1) was intended to go further, and there is no assumption (or, in my opinion, likelihood) that it was intended to.
+The standard of reasonableness expressed in the qualification so far as is reasonably practicable (in respect of which the onus of proof is on the employer) makes it more, rather than less, likely in my view that the concept of safety is itself to be judged, as Lord Upjohn thought obvious in Nimmo, by reference to what would, according to the knowledge and standards of the relevant time, have been regarded as safe (see further paragraph 79 et seq. below).
+Peter Gibson J (at p 562G H) regarded it as surprising that the approach in John Summers, based on section 14(1) of the 1937 Act containing no qualification of reasonable practicability, should have been regarded as relevant under section 29(1) of the 1961 Act which does contain such a qualification.
+The same point was made in Mains (pp 527A D and 531D F, per Lord Sutherland and p 536A, per Lord Johnston).
+But there was authority pre dating 1959 which took the same approach to safety where there was such a qualification: see Sheppey v Matthew T Shaw & Co Ltd and Trott v W E Smith (Erectors) Ltd (para 65 above).
+The force of the point depends in any event upon the effect of the qualification.
+In Mains it was contemplated that the qualification might enable a defender to say it was not reasonably practicable to make this place safe, because this particular mishap was not reasonably foreseeable (p 527C D, per Lord Sutherland) and that The unforeseeable accident occurring in an unforeseeable way may well give the defenders a defence under the qualification (p 637E, per Lord Johnston).
+Likewise, in the present case the Court of Appeal considered as a matter of common sense that if, the employer does not know of the risk and cannot reasonably have been expected to know of it, it cannot be reasonably practicable for him to take any steps at all (paras 83 and 91).
+On that basis, foresight can be very relevant under section 29(1).
+But, if this is so, then section 29(1) is to that extent merely shifting the onus of proof, which weakens the argument that it must be seen as departing substantially from conceptions of common law negligence.
+In summary, safety must, in my view, be judged according to the general knowledge and standards of the times.
+The onus is on the employee to show that the workplace was unsafe in this basic sense.
+(iv) Reasonably practicable
+Since it took the view that safety is absolute and unchanging, the Court of Appeal had to consider whether the qualification so far as is reasonably practicable enabled the employers to exonerate themselves by showing that reasonable employers would not have considered that there was cause to reduce noise exposure in the workplace below 90dB(A).
+The Court of Appeal held that the qualification gave no scope for such a defence.
+It said (para 89): Under the statute, the employer must first consider whether the employee's place of work is safe.
+If the place of work is not safe (even though the danger is not of grave injury or the risk very likely to occur) the employer's duty is to do what is reasonably practicable to eliminate it.
+Thus, once any risk has been identified, the approach must be to ask whether it is practicable to eliminate it and then, if it is, to consider whether, in the light of the quantum of the risk and the cost and difficulty of the steps to be taken to eliminate it, the employer can show that the cost and difficulty of the steps substantially outweigh the quantum of risk involved.
+I cannot see how or where the concept of an acceptable risk comes into the equation or balancing exercise.
+I cannot see why the fact that a responsible or official body has suggested that a particular level of risk is 'acceptable' should be relevant to what is reasonably practicable.
+In that respect, it appears to me that there is a significant difference between common law liability where a risk might reasonably be regarded as acceptable and statutory liability where the duty is to avoid any risk within the limits of reasonable practicability.
+Smith LJ reiterated the point at the end of para 100, when rejecting the relevance of the Code of Practice to the question whether it was reasonably practicable to provide protection.
+In the light of my conclusion that safety is a relative concept, the correctness of these passages does not strictly arise for consideration in this case.
+Had it arisen, I would have regarded the qualification as wide enough to allow current general knowledge and standards to be taken into account.
+Even the Court of Appeal in its formulation acknowledged the quantum of risk involved as material in the balancing exercise.
+But this can only mean that some degree of risk may be acceptable, and what degree can only depend on current standards.
+The criteria relevant to reasonable practicability must on any view very largely reflect the criteria relevant to satisfaction of the common law duty to take care.
+Both require consideration of the nature, gravity and imminence of the risk and its consequences, as well as of the nature and proportionality of the steps by which it might be addressed, and a balancing of the one against the other.
+Respectable general practice is no more than a factor, having more or less weight according to the circumstances, which may, on any view at common law, guide the court when performing this balancing exercise: see Swanwick and Mustill JJs statements of principle, set out earlier in this judgment, and also Charlesworth on Negligence (12th ed) (2010), chapter 7, The Standard of Care, both generally and especially at para 7.38.
+It would be strange if the Court of Appeal was right in suggesting that, under the statutory formulation, this one factor is irrelevant, when the whole aim of the balancing exercise must, in reality, be to identify what is or is not acceptable at a particular time.
+That the qualification so far as may be reasonably practicable may, if necessary, receive a broad interpretation is also indicated by the reasoning of the House in Marshall v Gotham Co Ltd [1954] AC 360.
+Under the Metalliferous Mines General Regulations 1938 (SR & O No 630) the roof and sides of every travelling road in a mine were required to be made secure.
+An employee was killed by a fall of roof, due to the presence of an unusual geological condition known as slickenside, which there was no known means of detecting prior to a fall.
+It was argued that the mine owner could have propped all roofs, and that reasonably practicable meant no more than practicable (p 364).
+The argument was rejected.
+Lord Oaksey at p 370 agreed with Jenkins LJs statement, [1953] 1 WB 167, 179, that what is reasonably practicable in this context is no more nor less than what is capable of being done to make roofs and sides secure within the limits of what it is reasonable to do; and it cannot be reasonable to do for this purpose anything more than that which it appears necessary and sufficient to do according to the best assessment of what is necessary and sufficient that can be made at the relevant time, that is, in the present instance a point of time immediately prior to the accident.
+Lord Reid at p 373 said that if a precaution is practicable it must be taken unless in the whole circumstances that would be unreasonable and took into account that the danger was a very rare one, that the trouble and expense involved in the use of the precautions, while not prohibitive, would have been considerable, that the precautions would not have afforded anything like complete protection against the danger, and that their adoption would have had the disadvantage of giving a false sense of security.
+Lord Keith considered at p 378 that there was no general rule or test that can safely be relied on for measuring the discharge of such a duty, but that he could not, as at present advised, accept that the measure of an employers liability can satisfactorily be determined by having regard solely to the proportion which the risk to be apprehended bears to the sacrifice in money, time or trouble involved in meeting the risk.
+Lord Tucker (with whom Lord Cohen agreed at p 377) said at pp 374 375 that the word secure does not involve security from the effects of earthquake or an atom bomb, but added that it must include security from all the known geological hazards inherent in mining operations.
+At p 376 he echoed the list of factors which Lord Reid had identified in support of his conclusion that the precautions were not reasonably practicable.
+A further aspect of para 84 in Smith LJs judgment is the suggestion that there must be at least a substantial disproportion before the desirability of taking precautions can be outweighed by other considerations.
+This theme was developed in paras 82 to 84 of her judgment, on the basis of dicta in two cases prior to Marshall v Gotham.
+But it represents, in my view, an unjustified gloss on statutory wording which requires the employer simply to show that he did all that was reasonably practicable.
+In deciding the appeal in favour of the respondent, the Court of Appeal relied upon HHJ Ingliss estimation of the quantum of risk below 90dB(A).
+HHJ Inglis said that the description given to the risk to hearing of exposure below 85dB(A) as minimal is one that I accept and adopt.
+Above 85dB(A) the risk accelerates up to 90dB(A).
+In the high 80s, given long enough exposure, significant hearing loss may be expected in at least a substantial minority of individuals.
+On that basis, Smith LJ said that, assuming (as she did) that the employers well knew that some of their workforce stayed in their employment over many years, they would, if they had asked a suitably qualified expert, have received advice conveying to them that a substantial minority of their workforce in the relevant departments were likely to suffer significant hearing loss, and could not then have hoped to establish that the burden of providing ear protectors was substantially disproportionate to the quantum of risk to their employees (para 98).
+Advice of this nature as to the quantum of the risk should have been received by late 1976 or early 1977 (para 101).
+To this, Smith LJ added six to nine months, for reasons already discussed, putting Quantum in breach of its statutory duty under section 29(1) from 1 January 1978.
+Neither Quantum nor any other of the employers before the court exposed their workforce to noise levels in the high 80s.
+The exposure found was in the case of Mrs Baker to levels of 86dB(A).
+As I have already stated, every 3dB(A) represents a doubling of the sound pressure level of the energy involved in the noise, even though it will not be appreciated as such by the hearer.
+More importantly, the approach taken by the Court of Appeal requires employers to take expert advice and to identify the quantum of risk in circumstances in which current standards and thinking did not expect any such steps.
+And if risks which are not currently regarded by responsible employers as calling for any action are required to be addressed, then, despite Smith LJs references to the balancing of the quantum of risk against other factors, any employer who was or should have been aware of any risk at all greater than de minimis would be obliged to address it unless the trouble and cost involved were prohibitive.
+This is highlighted by consideration of the arguments which can be made if one has regard simply to the statistical tables in BS 5330: 1976 upon which the respondent and the Court of Appeal have relied to show the risk attaching at levels of exposure between 85 and 90dB(A) lepd: see para 31 above.
+The respondent, as I understand, accepts that the logic of her case is that the risks below 85dB(A) cannot and should not have been regarded as immaterial.
+But this highlights how independent her case on section 29(1) is of contemporary standards of behaviour or thought.
+Only since 2005 have employers been obliged to require ear protectors to be worn by workers exposed to 85dB(A) and obliged to make them available on request to workers exposed to 80dB(A) (see para 14 of the Court of Appeals judgment, quoted in para 15, above).
+There is nothing in the history of section 29(1) or the mischief to which it was addressed to suggest that the legislature in 1959 or 1961 intended in this way to detach the penal liability which it then introduced in respect of the workplace from the ordinary understanding of reasonable employers.
+Contrary to the Court of Appeals view, I consider that HHJ Inglis was correct in the approach he took to section 29(1), which followed that taken by Rose J in Fazakerley.
+Conclusion
+I would allow the appellants appeals both at common law and under section 29(1).
+At common law, Quantum, and other employers in a similar position such as Guy Warwick, were not in breach of their duty of care or of their duty under section 29(1) in not implementing measures to protect their employees in respect of noise exposure at levels below 90dB(A) prior to 1 January 1990.
+As regards Meridian and Pretty Polly, in reflection of the common ground between Lord Dyson, Lord Saville and myself (paragraphs 25 and 43 above), the appeal will be allowed by restoring the judges decision that they were in breach of duty in not having implemented such measures as from 1 January 1985.
+APPENDIX (para 18) This Appendix indicates the factual position as found by the judge in relation to each employer.
+Meridian (Courtaulds) 1.
+Taking the Courtaulds group of which Meridian was part, the judge found that the group had spinning and weaving divisions with high noise levels, that in the early 1980s the issue of noise began to be widely discussed, that claims for industrial deafness were emerging by 1983 and at the end of 1982 a Dr Cooper was asked to form and chair a noise committee.
+This committee met on 17 March 1983, and considered a paper indicating that a number of other countries had set a maximum exposure level of 85dB(A)lepd.
+It set companies in the division the task of surveying noise levels in all the factories.
+Also in the first half of 1983, Courtaulds legal department and medical officer circulated a memorandum, containing this passage: It has been suggested that some impairment may be caused by noise levels in the range of 85 90dB(A) .
+We strongly recommend that hearing protectors be provided for all those who may be exposed to noise within the range 85 90dB(A)leq. 2.
+Factory surveys were completed by the committee meeting in March 1984.
+They identified areas above 90dB(A), as well as between 85dB(A) and 90dB(A), and in relation to the latter a 75% aim of acceptance of hearing protection by mid 1985 was suggested.
+At a further meeting in October 1984 the difficulties of obtaining compliance without Code of Practice backing were discussed, but the target was increased to 80% by the end of 1985, and the need for information, instruction and encouragement was recognised.
+By the meeting of 12 March 1986, Directive 86/188/EEC was imminent, and the committee noted that their policies already complied with the directive.
+The evidence showed that the drivers for the activity from the early 1980s were proposed legislation, and the rising incidence of claims.
+Courtaulds were active in the debate stimulated by the consultation in 1981 and in opposing on economic and competition grounds the European proposal for legislation from 1982 (judgment, para 53).
+The judge also said that Courtaulds had the resources to look beyond the 1972 Guidelines and reach their own conclusion about the nature and extent of the risks posed to the hearing of their employees exposed below 90dB(A), but 56 nobody actually considered or sought to answer the question What are the actual risks to members of the workforce exposed to different levels of noise? The 90dB(A) standard from 1972 was considered to be the standard that the law and good practice required.
+There was a clear awareness by the early 1980s that exposure to levels of noise between 85 and 90dB(A) could be expected to damage the hearing of some workers to the extent that action was desirable at those levels.
+No large company who responded to the consultation document or read the background document and was aware of the EEC proposals in 1982, and one that then took part in the debates trying to fend off compulsory protection at 85dB(A) on economic grounds, but not on grounds that such levels of exposure were not harmful, could be said to be ignorant of the facts by the beginning of 1983 at the latest.
+Pretty Polly 3.
+This company disclosed a substantial quantity of material consisting of or based on documents in the public domain.
+In 1975 a Factory Inspector found noise levels of 89dB(A) and did not recommend any steps.
+Further, as the judge found (para 63): The internal documents include a Guide to Preparing a Noise Control Policy from Midland Insurance, undated but probably from the late 1970s or early 1980s, in which it is said that [on] exposure to 90dB(A)lepd over a long period there is a possibility of damage to hearing, so that adequate steps should be taken to prevent this; also that a noise reduction programme should aim at reducing noise to 84dB(A) or less if practicable; a Commercial Union Risk Management Ltd paper from 1977 saying that research has shown that few industrial workers will suffer serious hearing loss if the intensity and duration of exposure is controlled to allow a maximum of 90db(A) and, later, that the exposure standard of [90dB(A) lepd] is based on the prediction that not more than 1 % of those exposed to this level over a 30 year working lifetime will suffer social handicap as a result.
+Levels should thus be reduced whenever possible and 90dB(A) regarded as a ceiling rather than a safe level. 4.
+In December 1982 Pretty Pollys work studies department produced a memorandum, probably written by a Mr John Butler, later manager of the department, stating that 90dB(A) was the maximum level, that noise at that level involved accepting a certain risk of hearing damage and that: if we as a company feel that we require a zero risk of hearing damage for our employees, then no person should be exposed to a noise level of more than 80dB(A) for an eight hour day.
+There followed a table of percentage risk of hearing damage (such damage not being defined) showing 0% at 80dB(A), and at 85dB(A) 1, 3, 5, 6, 7, 8, 9 and 10% for 5, 10, 15, 20, 25, 30, 35 and 40 years of exposure respectively.
+The percentages for the same periods at 90dB(A) were said to be 4, 10, 14, 16, 16, 18, 20 and 21 %.
+These figures came in fact from ISO: 1999 of 1975, and some, but not all of this information about low level exposure, was in the 1981 consultative document. 5.
+In 1985 Mr Butler distributed an assessment with essentially the same table, noting that with one exception all machinery areas in the company were in excess of 85dB(A) and that: Even at this level we are accepting a certain risk of damage for our employees.
+If a zero risk of hearing damage is required, then no employee should be exposed to a noise level of more than 80dB(A) for more than eight hours a day.
+The judge found (para 66) that: There is no evidence that anyone at Pretty Polly turned their mind towards any evaluation of the risks below 90dB(A) before 1982.
+It is not really likely that they did so.
+It is plain from Mr Butler's documents that by that year he had done so.
+Indeed, it is unlikely that a company of that size where there had been some collection of materials, and where they cannot have been unaware of the EEC proposals and the very public debate that followed, could not have known that there was a real case to be made that exposure below 90dB(A) could cause levels of hearing damage that should be guarded against.
+I would put actual awareness of the nature of the real risk below 90dB(A), as with Courtaulds, as having arisen by the beginning of 1983.
+Taymil (now Quantum) and its subsidiaries 6. employers, the judge found: In relation to the subsidiaries of Taymil, which included Mrs Bakers 60.
+The factories in the group seem to have run largely independently, with factory management being responsible for health and safety, reflecting the origins of each factory in a separate business.
+There was no central health and safety function.
+Mr Jones said that he thought that in 1977 or thereabouts a Health and Safety policy document had been produced.
+He said it would probably have been destroyed when the company folded.
+There is no reason to think that such a policy, if it did in fact exist, would on noise have done anything but refer to the limit of 90dB(A).
+The knitting shops were recognised as being the areas with possibly dangerous levels of noise, not making up areas.
+Of the documents referred to the first is a noise survey and accompanying documents done for Huthwaite Avenue by Midland Insurance in June 1983.
+Mr Watson had discussed the conclusions of it with Midland Insurance, as appears on the face of the document, though he said in evidence that he could not remember it.
+The survey refers to the 90dB(A) limit and suggests that all areas in the survey above 87dB(A) should be areas where ear protection is worn until the noise is reduced by engineering methods.
+A number of areas were identified as having noise over that level.
+Proper training and instruction of staff is advised; and appended is a guide to preparing a noise control policy, in which it is suggested that any noise reduction programme should aim at reducing noise to 84dB(A) or less if practicable.
+There is a noise survey of Botany Avenue by Mr Graham Allin, an engineer working to Mr Gage in August 1984 in which Mr Allin refers to company policy taking 85dB(A) as the exposure threshold level.
+I am satisfied that there was no such policy.
+Mr Gage, who was a good witness was quite clear about that, and explained how Mr Allin may have got that idea from Mr Gage's view about a margin of safety below 90dB(A) so as to ensure the 90dB(A) level was achieved.
+Moreover, in a draft survey of the Ollerton factory written after June 1984 when the EEC proposals were changed there is no mention of such a policy.
+The quality of their evidence was not as good as that of Mr Gage, but both Mr Watson and Mr Ivan Jones said that the limit to be worked to was 90dB(A).
+There is no evidence of any steps towards protection being taken in the Nottingham Manufacturing years aimed at conservation over 85dB(A).
+Mr Watson said in evidence that he was aware of the EEC proposal in 1982 to reduce the exposure level to 85dB(A).
+He was aware of the existence of the debate about that proposal, from discussions with insurers: It was viewed with some scepticism, I think.
+Coats was a large organisation.
+By the time they came on the scene attention, if any, must have been focused on the EEC proposals that led to the 1989 regulations. 61.
+There is therefore no evidence that anyone in Nottingham Manufacturing or its subsidiaries with which this case is concerned turned their mind towards the level of risk about possible harm below 90dB(A)leq, except that Mr Watson was aware after 1982 of a debate going on about what levels would ultimately be imposed, and by the summer of 1984 it was known that though the compulsory level would remain at 90, some measures, possibly audiometry, would be imposed at 85dB(A).
+The 1983 Midland Insurance document is an important document, with its plain implication that the 90dB(A) Code of Practice level did not provide protection to everyone, and that a noise conservation policy should do better, but it does not provide the information that means that management at Nottingham Manufacturing were in a position of knowledge and understanding that set them apart from what I take to be the understanding of the great majority of employers, that 90dB(A)lepd was the official limit that had to be worked to.
+I do not think it is shown that Nottingham Manufacturing had a greater than average degree of knowledge.
+Guy Warwick 7.
+The judge said that, by comparison with other defendants, they were a very small company, engaged in making up operations, with at their height four factories and under 400 employees, and (para 68) that There is no evidence that anyone at Guy Warwick knew about the 1972 Code of Practice, or even about the Noise at Work Regulations 1989, which were in force for the last two years of the company's life.
+Mr Kettle was involved in health and safety and set up the health and safety committee.
+There were committee meetings at which he said in his statement the question of noise was never raised.
+The factory inspectors who came round periodically and the insurance representatives never raised it.
+No surveys were ever done.
+In my opinion said Mr Kettle, the industry was not renowned for excessive noise.
+Whether, on the facts of actual noise to which Mrs Hooley was exposed, Guy Warwick were in breach of any duty to her, has to be judged on the basis that they had no actual knowledge of the relevance of noise to their operation.
+LORD DYSON Common law negligence
+The decisions below
+The history of investigation and awareness of the risks of occupational exposure to noise is fully set out by Lord Mance at para 15 of his judgment.
+On the basis of this material, the judge applied the well known test enunciated by Swanwick J in Stokes v Guest, Keen and Nettleford (Bolts and Nuts) Ltd [1968] 1 WLR 1776, and held at para 87 that complying with 90dB(A) lepd as the highest acceptable limit met the standards of the reasonable and prudent employer during the 1970s and 1980s certainly until the time when the terms of the 1986 directive became generally known in the consultative document of 1987.
+He concluded, therefore, that the average employer was not in breach of its common law duty of care to its employees in failing to provide ear protectors before about the beginning of 1990.
+At para 88, however, he held that by the beginning of 1983 Courtaulds and Pretty Polly had sufficient understanding of the risks to hearing below 90dB(A) lepd to require them to take action.
+He then considered what was a reasonable period to allow for these two companies to take action and held that they should have done so by the beginning of 1985.
+Accordingly, from that date they were in breach of duty to employees who suffered damage through exposure at 85dB(A) lepd and above without having the opportunity of using hearing protection.
+He must also have held that the other (average) employer defendants were entitled to a period of about two years to take action.
+Although the judge gave no precise dates, it is for this reason that he dismissed the claim by Mrs Baker.
+Smith LJ (with whom Sedley and Jacob LJJ agreed) said at para 105 that the judges conclusion at para 87 of his judgment cannot be faulted.
+She said that she would uphold his view that there was no breach of duty at common law during the period for which a responsible body of opinion regarded it as acceptable to expose employees to noise in the 85 89dB(A) lepd range.
+For the employer with the ordinary or average degree of knowledge, the judges conclusion that this period came to an end in 1987 following the publication of the consultation paper on the 1986 draft directive was a reasonable conclusion.
+She differed from the judge only in that she considered that the average employer should have needed no more than six to nine months from the date of the publication of the consultation paper.
+For that reason, in respect of the average employer she fixed the date for breach of the common law duty of care at January 1988.
+As for Courtaulds and Pretty Polly, she upheld the judges conclusion that these companies had the requisite knowledge in early 1983.
+But, differing from the judge, she allowed them only six to nine months to provide ear protection.
+Finally, at para 109 she explained why Quantum should not be treated as an average employer and why its position should be assimilated to that of Courtaulds and Pretty Polly.
+The judge had found that the group insurance and risk manager of Quantum admitted that he was aware of the first draft EEC directive in 1982.
+Having reviewed the evidence, the judge said at para 61 that the company management were not in a position of knowledge and understanding that set them apart from what I take to be the understanding of the great majority of employers that 90dB(A) lepd was the official limit that had to be worked to.
+Smith LJ accepted the submission of Mr Hendy QC that, since there was evidence that Quantum was aware of the first draft directive, it was irrational to treat Quantum differently from Courtaulds and Pretty Polly, who also had such knowledge.
+Is compliance with the 1972 Code of Practice a defence for the average employer?
+On this appeal, Mr Hendy challenges the decision of the judge (upheld by the Court of Appeal) that the 1972 Code of Practice constituted an acceptable standard for average employers to adhere to until the late 1980s.
+I shall deal first with this challenge before coming to the question whether there was any basis for the judge to treat Courtaulds and Pretty Polly (and the Court of Appeal additionally to treat Quantum) differently.
+I agree for the reasons given by Lord Mance at paras 28 to 37 of his judgment that there is no basis for interfering with the judges finding at para 87 that until the late 1980s the Code of Practice set the standard for the reasonable and prudent employer without specialist knowledge.
+The avowed purpose of the Code was to set standards to protect loss of hearing due to noise at work.
+The Foreword by the Rt Hon Robert Carr MP, Secretary of State for Employment, states that until the pioneering work of Professor Burns and Dr Robinson (both members of the committee that prepared the Code of Practice) we lacked the necessary scientific knowledge of the precise levels of noise, and the duration of exposure to them, which can cause damage.
+Mr Carr wrote that he regarded the publication of the Code as the first important step in the prevention of loss of hearing due to noise at work.
+It should be considered as a blueprint for action.
+Section 1.1.2 stated: The Code sets out recommended limits to noise exposure.
+It went on to say: It should be noted that, on account of the large inherent variations of susceptibility between individuals, these limitations are not in themselves guaranteed to remove all risk of noise induced hearing loss.
+At section 4.3.1, the Code defines the limit in these terms: If exposure is continued for eight hours in any one day, and is to a reasonably steady sound, the sound level should not exceed 90dB(A).
+It is this limit which the Code specifies [as] a limit for exposure to noise (section 2.1.1); which if not achieved triggered the obligation to provide ear protectors and ensure their use (sections 3.1.2 and 7.1.1); which should be regarded as maximum acceptable levels and not as desirable levels (section 4.1.1); and which if it was considered that it may be exceeded dictated the obligation to carry out a survey (section 5.1.1).
+On a fair reading of the Code, this blueprint for action provided that, although it was desirable to reduce levels where reasonably practicable to below the 90dB(A) level, continuous exposure for eight hours in any one day to a reasonably steady sound below 90dB(A) was acceptable and did not require the provision of ear protectors.
+It was made clear that, having regard to the large inherent variations of susceptibility between individuals, exposure below 90dB(A) could not guarantee to remove all risk of noise induced hearing loss.
+But the clear message of the document, based on the latest scientific knowledge, was that ear protectors were not required if the noise levels were below 90dB(A) and that at levels below 90dB(A) the risk to particularly susceptible people was sufficiently small, both in terms of the numbers who might be affected and the seriousness of any damage that might result, to be acceptable.
+That is how I would interpret the document.
+That is also how the document was interpreted by those in the industry.
+Lord Mance has referred at paras 32 and 34 of his judgment to the evidence on this point summarised by the judge at paras 46 to 48 of his judgment and his findings at para 48.
+In summary, the judge found that the 90dB(A) limit was regarded by everyone in the industry, the Health and Safety Executive and factory inspectors as the touchstone of reasonable standards that should be attained.
+This finding was supported by the notes published by the Wolfson Unit for Noise and Vibration Control in the University of Southampton in 1976.
+As the judge said, with the publication of BS 5330 in 1976, there was information available which, if researched, would give an indication of the level of risk below 90dB(A).
+But in the light of the terms of the Code itself and all the evidence summarised at paras 46 to 48, I agree with the Court of Appeal that the judge was entitled to hold that an average reasonable and prudent employer was not in breach of its duty of care to its employees in simply relying on the 90dB(A) limit as an acceptable limit.
+There is no rule of law that a relevant code of practice or other official or regulatory instrument necessarily sets the standard of care for the purpose of the tort of negligence.
+The classic statements by Swanwick J in Stokes and Mustill J in Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405 which have been quoted by Lord Mance at paras 9 and 10 of his judgment remain good law.
+What they say about the relevance of the reasonable and prudent employer following a recognised and general practice applies equally to following a code of practice which sets out practice that is officially required or recommended.
+Thus to follow a relevant code of practice or regulatory instrument will often afford a defence to a claim in negligence.
+But there are circumstances where it does not do so.
+For example, it may be shown that the code of practice or regulatory instrument is compromised because the standards that it requires have been lowered as a result of heavy lobbying by interested parties; or because it covers a field in which apathy and fatalism has prevailed amongst workers, trade unions, employers and legislators (see per Mustill J in Thompson at pp 419 420); or because the instrument has failed to keep abreast of the latest technology and scientific understanding.
+But no such circumstances exist here.
+The Code was the result of careful work by an expert committee.
+As the judge said, at para 87, the guidance as to the maximum acceptable level was official and clear.
+He was entitled to accept the evidence which led him to conclude that it remained the touchstone of reasonable standards for the average reasonable and prudent employer at least until the publication of the consultation paper on the 1986 draft Directive (para 48).
+Remaining questions
+There remain three questions in relation to the issue of common law negligence.
+First, was the judge right to treat Courtaulds and Pretty Polly as different from the average employer? Secondly, was the Court of Appeal right to hold that employers should have provided ear protectors within six to nine months of the publication in 1987 of the consultation paper on the draft second EEC Directive (and not two years as held by the judge)? Thirdly, was the Court of Appeal right to hold that Quantum was not an average employer, but had particular knowledge, which assimilated its position to that of Courtaulds and Pretty Polly as it was found by the judge to be?
+As regards the first question, the judge held that by the beginning of 1983 Courtaulds and Pretty Polly had an understanding of the risk that some workers would suffer damage at exposure between 85 and 90dB(A)lepd which led him to distinguish their position from that of the average prudent employer.
+Lord Mance (paras 21 to 25) says that neither Courtaulds nor Pretty Polly had acquired any new knowledge by this time.
+All that had happened was that they had formed a different view from that generally accepted about what precautions to take.
+He says that the failure to give effect to that different view does not amount to a breach of the duty of care.
+I would not interfere with the judges assessment on this point.
+The position of the average employer was that, until about 1987, it knew or should have known that there was a risk at below 90dB(A), but that it was officially regarded as so small as to be acceptable.
+But as the judge said at para 56 in relation to Courtaulds, that company had the resources to look beyond the 1972 Guidelines and reach their own conclusion about the nature and extent of the risks posed to the hearing of their employees exposed below 90dB(A).
+It is true that they did not seek to assess the actual risks to members of the workforce exposed to different levels of noise.
+But the judge found that the company had a clear awareness by the early 1980s that exposure to noise between 85 and 90dB(A) could be expected to damage the hearing of some workers to the extent that action was desirable at those levels.
+So too as regards Pretty Polly.
+Thus, on the basis of their own research into the problem and the discussion generated in the industry by the EEC proposals, by early 1983 large employers such as Courtaulds and Pretty Polly had come to the conclusion that the 90 limit was no longer acceptable.
+Unlike Lord Mance, I would not characterise the decision of the two companies that some action should probably be taken as a display of greater than average social awareness.
+As responsible employers, they understood that they owed a duty of care to their employees and were keeping the content of that duty under review.
+But even if the decision that action was desirable was a display of social awareness, I do not see how that would necessarily afford a defence.
+On the finding by the judge, their appreciation that the Code limit was no longer acceptable was sufficient to found liability.
+I note, in any event, that Mustill J in Thompson said that changes in social awareness may transfer the risk into the category against which the employer can and should take care (pp 415 416).
+As regards the second question, in my view the Court of Appeal was not entitled to interfere with the judges assessment of what was a reasonable lead in time for the average employer.
+A period of two years from the publication of the consultation paper takes one to the end of 1989, which was effectively the date when the 1989 Regulations came into force.
+The judge was entitled to hold that it was reasonable not to require the average employer to implement protective measures before the impending regulations came into force.
+As regards the third question, the judge carefully considered all the evidence about the knowledge and understanding of Quantum at paras 57 to 61 of his judgment.
+He concluded that it did not show that the management were in a position of knowledge and understanding that set them apart from what I take to be the understanding of the great majority of employers, that 90dB(A) lepd was the official limit that had to be worked to.
+In my view, this assessment of the facts was reasonably open to the judge.
+The Court of Appeal should not have interfered with it.
+Section 29(1) of the Factories Act 1961
+I agree with and do not wish to add anything to what Lord Mance has said on the issue of whether section 29 applies to operations carried out within the place of work.
+I also agree that the section applies to noise.
+Like Lord Mance, I recognise the force of the arguments to the contrary.
+Noise was clearly not in the contemplation of Parliament when section 29 or its predecessors were enacted.
+But the language of section 29(1) (every such place shall, so far as is reasonably practicable, be made and kept safe for any person working there) is general and always speaking.
+Thus it can accommodate working methods and technological developments that were not foreseeable (and attitudes to safety that were not held) at the time when the statute was enacted.
+I would hold that section 29 applies to noise for the simple reason that excessive noise can cause injury by damaging a persons hearing thereby rendering a place of work unsafe for those who are working there.
+For my part, I would reach this conclusion regardless of whether section 29(1) imposes absolute liability in the sense to which Lord Mance refers at para 61.
+Meaning of safe
+The judge held that what was safe within the meaning of section 29(1) was not to be judged objectively, but was really a jury question, to be answered in the light of all the circumstances prevailing at the time, including what might reasonably have been foreseen by an employer (para 97).
+And again at para 99: as contemplated by Rose J in Taylor v Fazakerley, the standard of safety in the section is governed by the general standard which ought reasonably to have been adopted by employers at the relevant time.
+Having reviewed the facts in detail, he concluded that the standard of safety was determined by the 1972 Code until the coming into force of the Noise at Work Regulations 1989 and that, judged by the standard of the 1972 Code, Mrs Bakers place of work was safe.
+Having reached this conclusion, he did not go on to consider whether her employers had discharged the burden of proving that they had done all that was reasonably practicable to make and keep the place safe for any person working there.
+Smith LJ agreed with and applied the Court of Appeal decision in Larner v British Steel plc [1993] ICR 551 (which was followed by the Inner House of the Court of Session in Scotland in Mains v Uniroyal Englebert Tyres Ltd [1995] IRLR 544) and held (para 76) that the safety of a place of work within the meaning of section 29 was to be judged objectively without reference to reasonable foresight of injury.
+She said that what is objectively safe cannot change with time.
+On the evidence before the judge, she held that the places of work where the ambient noise levels were 85dB(A) lepd or above were not safe (para 78).
+In the alternative, if reasonable foresight was relevant, she said that by the early 1970s any employer who kept abreast of developing knowledge would have known that prolonged exposure to 85dB(A) lepd was harmful to some people (para 79).
+On that basis, by the early 1970s there would have been liability for breach of section 29, subject to the reasonable practicability defence.
+Like Lord Mance, I prefer the approach of the judge, with the qualification that what is safe is an objective question in the sense that safety must be judged by reference to what might reasonably be foreseen by a reasonable and prudent employer.
+The concept of what is safe is not, however, absolute.
+As Lord Nicholls and Lord Hobhouse said in R (Junttan Oy) v Bristol Magistrates Court [2003] UKHL 55, [2003] ICR 1475, safety is a relative concept.
+People can legitimately hold different opinions as to what is safe.
+Opinions as to what is safe may vary over time as, with developing knowledge, changes occur to the standards that are reasonably expected to be followed.
+I do not, therefore, agree with Smith LJ (para 78) that what is objectively safe cannot change with time.
+Standards of safety are influenced by the opinion of the reasonable person and foreseeability of risk plays a part in the forming of that opinion.
+If reasonable foreseeability is not imported into the concept of safety, then unless the Court of Appeal are right in holding that it is relevant to reasonable practicability, section 29(1) imposes an obligation on employers to guard against dangers of which they cannot reasonably be aware (in so far as it is reasonably practicable to do so).
+Breach of that obligation exposes the employer to potential criminal liability: see section 155 of the 1961 Act.
+That is an unreasonable interpretation to place on the statute, which I would not adopt unless compelled to do so by clear words, whether express or necessarily to be implied.
+In my view, there are no such words.
+As Lord Mance points out, there are two strands of authority on the meaning of safe in section 29(1).
+Before I come to these, I should refer to section 14(1) of the 1961 Act which provides: (1) Every dangerous part of any machinery.shall be securely fenced unless it is in such a position or of such construction as to be as safe to every person employed or working on the premises as it would be if securely fenced.
+It will be seen that section 14(1) does not include a reasonable practicability qualification.
+There is a line of authority to the effect that reasonable foreseeability is a component of the meaning of dangerous in section 14(1) and its predecessors: see, for example, cases such as Hindle v Birtwhistle [1897] 1 QB 192, John Summers & Sons Ltd v Frost [1955] AC 740 and Close v Steel Company of Wales Ltd [1962] AC 367.
+In Close, Lord Denning referred with approval to Hindle, a case involving a shuttle which flew out and injured a weaver.
+He said at pp 380 381: The Divisional Court held that it was capable of being a dangerous part of the machinery.
+It depended on the frequency with which shuttles were likely to fly out.
+If it was so frequent as to be a reasonably foreseeable cause of injury, it was dangerous.
+But if it was so rare as to be a minimal risk, it was not dangerous.
+Wills J gave a definition which has been repeatedly approved: It seems to me that machinery or parts of machinery is and are dangerous if in the ordinary course of human affairs danger may be reasonably anticipated from the use of them without protection .
+Lord Denning added: My Lords, anyone who has practised in the Queens Bench Division knows that the case of Hindle v Birtwhistle has been cited very, very many times.
+Du Parcq LJ vouched for it up to 1940 in Stimpson v Standard Telephones and Cables Ltd [1940] 1 KB 342 and I can vouch for it since.
+The first strand of authority on section 29(1) imports the concept of reasonable foreseeability into the meaning of safe.
+Lord Mance has mentioned two of the cases at para 71 above.
+There are others including a number of Scottish cases and the unreported decision of Rose J in Taylor v Fazakerley Engineering Co (26 May 1989), which I mention only because he was a judge who had great experience of personal injury litigation.
+The second strand includes the cases mentioned by Lord Mance at para 73.
+In Larner v British Steel plc [1993] ICR 551, Hirst LJ approved a passage in Munkman, Employers Liability, 11th ed (1990) p 292, where the author expressed the view that safe was a simple English word and there was no reason why the safety of a place of work should not be decided as a pure question of fact.
+Hirst LJ regretted the introduction of the vague and uncertain notion of foreseeability.
+Peter Gibson J said that it was not unfair on employers to impose a strict duty, because the duty was qualified by the defence of reasonable practicability.
+To introduce the concept of reasonable foreseeability into the question of safety was effectively to equate the duty under the section with the duty at common law.
+Mr Hendy QC seeks to uphold this reasoning.
+He submits that the word safe is a plain English word.
+It is not qualified.
+In this respect, it may be contrasted with, for example, reg 4 of the Provision and Use of Work Equipment Regulations 1998 by which the duty to ensure that work equipment is suitable for its purpose is conditioned by reg 4(4), which provides that the word suitable means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person.
+Mr Hendy has referred to a number of decisions on other health and safety provisions in which the court held that the duty on the employer was absolute and did not import any element of reasonable foreseeability.
+In my view, the meaning of section 14(1) is highly relevant.
+As a matter of ordinary English, the word dangerous is an antonym of safe.
+The text of section 14(1) suggests that it is being so used in the subsection.
+The subsection provides that every dangerous part of any machinery shall be securely fenced unless it is in such a position or of such construction as to be as safe to every person employed or working on the premises as it would be if securely fenced (emphasis added).
+The contrast between dangerous and safe is striking.
+As I have said, the meaning of section 14(1) is long established: there can be no liability for dangerous parts of machinery unless the danger is reasonably foreseeable.
+In these circumstances, it would be surprising if Parliament had intended to impose liability under section 29(1) for a danger (or lack of safety) which is not reasonably foreseeable.
+The only justification for interpreting safe in section 29(1) as not importing the concept of reasonable foreseeability is that it is unnecessary to do so because reasonable foreseeability is imported into the reasonable practicability qualification.
+I accept that, if it is imported into the reasonable practicability qualification, there is no need to interpret safe as importing reasonable foreseeability in order to avoid an inexplicable mismatch between sections 14(1) and 29(1).
+Smith LJ accepted (and Mr Hendy QC accepts) that reasonable foreseeability is relevant to reasonable practicability: As a matter of common sense, if the employer does not know of the risk and cannot reasonably have been expected to know of it, it cannot be reasonably practicable for him to take any steps at all (para 83).
+That was also the view of the courts in Larner and Mains.
+But in my view, the foreseeability of a risk is distinct from the question whether it was reasonably practicable to avoid it.
+Diplock LJ explained the point in Taylor v Coalite at pp 319 320 in the passage quoted by Lord Mance at para 71 above.
+It is only if a risk is reasonably foreseeable and it was reasonably foreseeable that an injury would be caused that it becomes necessary to consider whether it was reasonably practicable to avert the risk.
+Thus, for the purpose of deciding the issue of reasonable practicability, it is assumed that the risk was reasonably foreseeable.
+The importance of the section 14(1) line of cases is that they recognise that the mere fact that a risk of injury is foreseeable as a possibility is not necessarily sufficient to make the machinery dangerous.
+It is dangerous only if the risk of injury is sufficiently likely to make it more than a minimal risk: see, for example, the passage in Lord Dennings judgment in Close which I have quoted at para 113 above.
+I would apply that approach in the present case.
+The 1972 Code specified a limit of 90dB(A)lepd.
+As the HSE report Framing Noise Legislation published in 1975 made clear, this noise limit has widespread international acceptance, and although it does not eliminate all risk of hearing damage, we feel it continues to be the most practicable standard (para 19).
+The Code itself stated that exposure below 90dB(A) lepd could not guarantee to remove all risk of noise induced hearing loss.
+But the implication was that the risk was very small and acceptable in the view of the Government Department responsible for issues of health and safety and the experts who were advising them.
+I would agree, however, that if the concept of reasonable foreseeability is not imported into safe in section 29(1), then it is imported into reasonable practicability for the reasons given by Smith LJ.
+This is the position for which Mr Hendy contends.
+In agreement with the Court of Appeal in Larner, there is more than a hint in the reasoning of Smith LJ as to the meaning of safe in section 29(1) that it is influenced by the idea that it is necessary to interpret the subsection as imposing a greater obligation than would be imposed at common law.
+In this respect, at paras 59 and 60, she criticises Rose J in Taylor v Fazakerley for doing no more than formulating the common law test.
+At para 67, she refers with approval to Peter Gibson Js statement in Larner that to introduce the concept of reasonable foreseeability into the question of safety was effectively to equate the duty under the section with the duty at common law.
+At para 70, she refers to a similar observation by Lord Sutherland in Mains.
+Finally, when discussing the issue of reasonable practicability at paras 87 to 89, she draws a distinction between section 29(1) and the common law.
+The critical passage is quoted by Lord Mance at para 81.
+She says that at common law a risk might be regarded as acceptable, whereas under the statute the duty is to avoid any risk within the limits of reasonable practicability.
+There is a similar passage at para 100 of her judgment.
+I assume that the justification for saying that the statutory duty must differ from the common law duty is that the statutory provisions would otherwise be otiose.
+But there is no principle of law that a statutory obligation cannot be interpreted as being co terminous with a common law duty.
+As Stephenson LJ said in Bux v Slough Metals Ltd [1973] 1 WLR 1358, 1369 1370: The statutory obligation may exceed the duty at common law or it may fall short of it or it may equal it.
+Sometimes Parliament may decide that, in the interests of clarity and certainty, there is advantage in providing a detailed all embracing set of rules.
+The merit in setting these out in a single authoritative document, such as a statute, is not undermined even if they do no more than reflect what the courts would be likely to decide when applying the common law.
+There are, in any event, two important respects in which section 29(1) clearly does not reflect the common law.
+First, if a defendant wishes to say that it was not reasonably practicable to make or keep a place of work safe, the burden is on him to do so; it is not on the claimant to prove that it was reasonably practicable.
+I accept that few cases of this kind are likely to be decided on an application of the burden of proof.
+Nevertheless, in this respect there is a legal difference between the statutory and common law positions.
+Secondly, the fact that breaches are offences is a very significant difference.
+The fact that, as we were told, there have been few (if any) prosecutions is immaterial.
+Parliament considered that a breach of section 29(1) was sufficiently serious to attract potential liability to criminal sanctions.
+Were the places of work safe?
+Safety must be judged by the understanding and standards of the times.
+Where these are set out in a clear and official publication such as a Code of Practice issued by a relevant government department based on the most up to date expert advice, they are likely to set the bounds of what risks are reasonably foreseeable and acceptable and what is reasonably to be expected of an employer.
+If the guidance given in such a publication becomes out of date and a reasonable and prudent employer becomes aware of this (or ought reasonably to do so), then it can no longer rely on the publication to meet an allegation that its place of work is no longer safe.
+And employers with special expertise fall into a special category, as the positions of Courtaulds and Pretty Polly demonstrate.
+I see no reason to disturb the judges conclusion on the issue of safety.
+He was entitled to conclude that the standard of safety was determined by the 1972 Code until the coming into force of the 1989 Regulations and that, judged by the standard of the 1972 Code, Mrs Bakers place of work was safe.
+Reasonably practicable
+In view of the conclusion I have reached on the meaning of safe the question of reasonable practicability does not arise.
+But as I have said, if reasonable foreseeability is not imported into the meaning of safe, I would agree with the Court of Appeal that it is imported into reasonable practicability.
+On this hypothesis, however, I do not agree with the Court of Appeal that the acceptability of risk is irrelevant to reasonable practicability.
+I would adopt what Lord Mance says at paras 82 and 83.
+Smith LJ refers to the quantum of the risk as being relevant to whether it is reasonably practicable to eliminate it.
+I agree.
+But if the quantum of the risk is relevant to that question, how can the fact that a Code of Practice says that a risk is acceptable not be relevant? As Smith LJ said, the classic exposition of reasonable practicability is to be found in Edwards v National Coal Board [1949] 1 KB 704.
+Tucker LJ said at p 710: in every case it is the risk that has to be weighed against the measures necessary to eliminate the risk.
+The greater the risk, no doubt, the less will be the weight to be given to the factor of cost.
+If, to use the words of Smith LJ, a responsible or official body has suggested that a particular level of risk is acceptable, that is likely to be cogent evidence that this level of risk is minimal and one that can reasonably be disregarded.
+Smith LJ acknowledged that an official view as to the acceptability of a risk might well have a role to play in the determination of common law liability.
+Having said at paras 89 and 100 that it had no part to play in the determination of whether it was reasonably practicable to make a place of work safe, she acknowledged at para 101 (rightly in my view) that the 1972 Code was relevant to the employers assessment of the quantum of the risk, although it was inadequate as an assessment tool.
+In my view, the 1972 Code was plainly relevant to an employers assessment of the risk.
+The central question is whether, and during what period, it was reasonable for an employer to rely on the 1972 Code for the assessment of the risk and whether in all the circumstances it was reasonable for an employer not to provide ear protectors.
+At para 101, Smith LJ gave her reasons for holding that by late 1976 or early 1977 the average sized employer in the knitting industry could and should have been able to make an informed assessment of the quantum of risk arising from noise in the range of 85 to 90dB(A) lepd and that this assessment would have led the employer to the conclusion that ear protectors should be provided.
+It is true that the judge did not deal with the issue of reasonable practicability since, on his view as to the meaning of safe, it did not arise.
+But he did deal with the issue of the appreciation of risk by a reasonable employer when he addressed the issue of common law negligence: see paras 69 to 89.
+This section of his judgment must be considered against the background of his earlier findings of fact at paras 46 48 to which I have earlier made reference.
+The critical paragraph in the judgment of the judge is para 87 which Lord Mance has set out at para 16.
+It can be seen that para 101 of the judgment of Smith LJ is at variance with para 87 of the judges judgment.
+The judge said that the guidance given as to the maximum acceptable level by the 1972 Code was official and clear.
+His assessment was that complying with the 90dB(A) lepd as the highest acceptable level was meeting the standards of the reasonable and prudent employer during the 1970s and 1980s, certainly until the time when the terms of the 1986 Directive became generally known in the consultative document of 1987.
+They were not in breach of duty for not asking the question who is at risk in my factory and how big is the risk?
+In my judgment, the Court of Appeal should not have interfered with this assessment of the standards of the reasonable and prudent employer during the 1970s and 1980s.
+For the purpose of the reasonable practicability issue, Smith LJ accepted that an employer was entitled to rely on the 1972 Code until the publication of BS 5330 in July 1976.
+She said that the significance of that document was that it now became possible for anyone with a modest degree of mathematical skill to assess the quantum of risk from noise in the range 85 to 90dB(A) lepd.
+But in expressing this view, Smith LJ must have overlooked paras 46 to 48 of the judges judgment.
+In the light of that evidence (which was accepted by the judge), he was entitled to hold that a reasonable and prudent employer would not have sought advice from an acoustic engineer on the basis of BS 5330.
+All the evidence was that nobody used the tables to do the kind of calculation that Smith LJ said should have been carried out.
+The evidence was that the 90dB(A) lepd limit stated in the 1972 Code was regarded as the touchstone of reasonable standards at least until the mid 1980s.
+In my judgment, there was no basis for the Court of Appeal to interfere with that assessment either in relation to the issue of reasonable practicability or the standard to be expected of the reasonable prudent employer.
+Conclusion
+It follows that I would allow the appeals both at common law and on the section 29(1) issue.
+For the reasons that I have given, I agree with the conclusions reached by Judge Inglis (to whose judgment I would pay tribute).
+LORD SAVILLE
+For the reasons given by Lord Mance and Lord Dyson, I would allow this appeal to the extent proposed by those Justices.
+To my mind the contrary views depend to a significant degree on hindsight and consequently place an undue burden on employers.
+LORD KERR
+Liability at common law
+The report of the Committee under the chairmanship of Sir Alan Wilson on the Problem of Noise (the Wilson Committee) of March 1963 was presented to Parliament in July 1963.
+It contained the following observations: 508 Permanent reductions in sensitivity of hearing can be caused by damage to the inner ear, resulting from exposure over a considerable period to certain types of noise.
+The existence of this damage, which is irreversible, has been demonstrated in people who work in noisy industrial environments. 509.
+Though the existence of these temporary and permanent reductions is well established, as this chapter shows, our knowledge is very inadequate. 518.
+Different individuals vary considerably in the amount of hearing loss produced in them by a given noise exposure. 521. (b) the British Medical Association stated in their evidence that they believed that there is general acceptance of the view that working conditions involving continuous exposure throughout working hours for a prolonged period to noise whose intensity exceeds 85 dB [approx 90dB(A)] in any octave band in the speech frequency range (250 4,000 cycles per second) may cause permanent damage to hearing; 533.
+Much could be done voluntarily within industry, and, indeed, we know that some firms already have well established hearing conservation programmes.
+There is, however, a need for a wider and more urgent interest in the problem.
+We recommend, as immediate steps, that the Ministry of Labour should: (a) disseminate as widely as possible existing knowledge of the hazard of noise to hearing; (b) impress on industry the need to take action to reduce the hazard as it is at present recognised; and (c) advise industry on practical measures to this end. 534.
+Although voluntary action is now possible and, indeed, essential, we do not consider that the present knowledge of this complex problem provides a sufficient basis for legislation.
+Acting on the advice contained in para 533 of the Wilson Report, in June 1963 the first edition of a Ministry of Labour publication entitled Noise and the Worker made the following recommendations: The first steps in the programme [i.e. a Noise Reduction and Hearing Conservation Programme] are to carry out a noise survey and to obtain specialist advice. (page 5) Our knowledge of the relation of noise to hearing loss is as yet too limited for it to be possible to say with certainty what amount of exposure is safe partly because people vary greatly in their susceptibility to noise.
+It is generally agreed, however, that if workers are exposed for eight hours a day, five days a week, to a continuous steady noise of 85 dB or more in any octave band, in the speech range of frequency (500 to 4,000 cycles per second), it is desirable to introduce a programme of noise reduction or hearing conservation. (page 7) Where it is not possible, by environmental control, to reduce noise to sufficiently safe levels, workers should be protected by ear defenders. (page 14)
+The second edition of Noise and the Worker was published in June 1968.
+In a section entitled Monitoring Workers Hearing it stated that workers exposed to levels of noise at or approaching those set out in a table should have their hearing tested periodically.
+The table contained a range of decibel levels from 80 to 100 with corresponding frequency bands of 1200 4800 (in relation to 80 decibels) up to 37.5 150 (in the case of 100 decibels).
+The third edition of Noise and the Worker was prepared by the Health and Safety Executive in 1971.
+It gave the following warning: Because some people are more liable to hearing loss than others and because our knowledge of the effects of noise exposure, especially exposure to intensive noise of short duration, is still incomplete it is not possible to set out a simple table of permissible limits for all types of noise.
+The publication nevertheless contained a table which set out levels of noise which indicated a serious hazard to hearing.
+Eight hours exposure to noise levels of 90 dBA was stated to constitute such a serious hazard.
+This can only be taken to mean that there was a distinct, albeit less serious, hazard to hearing at lower levels.
+That conclusion is confirmed by the injunction that appears later in the text (page 9) to the effect that damage risk criteria should be regarded as maximum permissible levels and not as desirable levels.
+If possible the noise should be reduced to levels lower than the danger levels set out in the table.
+This was particularly required in order to avoid risk to the minority of people who are exceptionally susceptible to hearing damage, and for reasons of general welfare.
+Two salient conclusions can be drawn from these statements.
+Employers should have been aware that damage to hearing could occur at levels less than 90 dBA.
+They ought also to have realised that there may well be vulnerable individuals within the workforce whose hearing was particularly at risk at those lower levels.
+Other material was available about the risk of noise induced damage to hearing, most notably Hearing and Noise in Industry detailing the research carried out by Burns and Robinson in 1970.
+Together with the publications that I have so far reviewed, this provided the essential setting in which the seminal Code of Practice for reducing the exposure of employed persons to noise was published in 1972.
+The gradually evolving state of knowledge that emerges from the earlier documents is manifest from the Code of Practice itself.
+In a foreword, the Secretary of State for Employment, Rt Hon Robert Carr MP, said: It has been common knowledge for many years that high levels of noise at work can cause impairment of hearing.
+In a few firms where there is this danger, good work has been done in suppressing noise, but in many others the problem has not been recognised, or has been under estimated.
+In those firms, the tragedy is that all too often the workers are accustomed to the noise and do not notice the gradual deterioration of their hearing until it is too late.
+For hearing lost in this way cannot be recovered.
+The general solution to this problem, which is a complex one, has been hampered more by ignorance than by neglect.
+Until the pioneer work of Professor Burns and Dr. Robinson was published in March 1970, we lacked the necessary scientific knowledge of the precise levels of noise, and the duration of exposure to them, which can cause damage.
+It is largely due to their work that this Code of Practice has been made possible.
+The provisions in the code, and its publication, have been recommended by my Industrial Health Advisory Committee on which both sides of industry are represented.
+It is the outcome of 12 months' work by a sub committee.
+I regard the publication of the Code as the first important step in the prevention of loss of hearing due to noise at work.
+It should be considered as a blueprint for action.
+The Code was at pains to reinforce the message that had been conveyed by earlier publications to the effect that recommended limits on noise exposure could not be taken as eliminating all risk of noise induced hearing loss.
+Prominently, at para 1.1.2, it stated: The Code sets out recommended limits to noise exposure.
+It should be noted that, on account of the large inherent variations of susceptibility between individuals, these limitations are not in themselves guaranteed to remove all risk of noise induced hearing loss.
+Section 4 of the Code, dealing with limits on sound levels, reiterated the need to regard these as maximum levels which ought not to be exceeded.
+It was desirable that levels of noise be reduced below those specified.
+Para 4.3.1 provided that if exposure was continued for eight hours in any single day, and was to a reasonably steady sound, the sound level should not exceed 90 dB(A).
+In her judgment in the Court of Appeal Smith LJ had said at para 6 that the Code of Practice, having explained that protection from noise of 90dB(A)leq would not protect all workers from hearing damage, had indicated that some harm was likely to be caused to some susceptible workers by noise below that level.
+Lord Mance has observed that the use of the word likely in this context was not justified because the Code had in fact stated that the limitations which it specified were not in themselves guaranteed to remove all risk of noise induced hearing loss.
+It may well be that the particular formulation chosen by Smith LJ was not strictly justified but by 1972 it was recognised that a minority of workers would suffer hearing loss if exposed to noise levels of less than 90 dB(A) see the third edition of Noise and the Worker (referred to in para 5 above).
+Lord Mance and Lord Dyson have concluded that the Code of Practice set an appropriate standard on which a reasonable and prudent employer could legitimately rely.
+In Lord Mances view, it was acceptable for such an employer to continue to rely on the Code for this purpose until the late 1980s.
+Lord Dyson agreed with the trial judge, His Honour Judge Inglis, that the Code remained the touchstone of reasonable standards for the average reasonable and prudent employer at least until the publication in 1986 of the draft proposal for a Council directive on the protection of workers from the risks related to exposure to noise.
+The Court of Appeal, although expressing a preference for an earlier date, felt that the trial judge was entitled to reach the conclusion on this issue that he expressed in para 87 of his judgment.
+I shall consider this paragraph in a little detail presently.
+Before examining the question of how long an employer might reasonably rely on the Code, it is, I believe, necessary to look at what a reasonable employer would have taken from the information contained not only in the Code but also in the earlier publications that I have discussed.
+True it is that 90 dBA was the stipulated danger level.
+But employers were not told that lower levels were safe.
+On the contrary, they were told that certain employees could well suffer a hearing loss if exposed to noise at lower levels.
+That risk had been clearly signalled.
+Employers had also been told that too little was known about the relationship of noise to hearing loss to say with certainty what amount of exposure was safe.
+What ought to have been the reaction of a prudent and reasonable employer to that information? It seems to me that adopting a passive, sanguine attitude to the risk of hearing loss in workers exposed to noise of less than 90 dBA was not an available option.
+The Code was described as a blueprint for action.
+It was certainly not a blueprint for inaction.
+In Doherty v Rugby Joinery (UK) Ltd [2004] ICR 1272 Hale LJ stressed that the duty on the employer was to consider those within the workforce who (although not identifiable in advance) would be particularly susceptible to vibration injury.
+This seems to me to be an important argument against passivity on the part of employers following the publication of the 1972 Code.
+A prudent employer should have concluded that the health of a minority was at risk when exposed to noise levels below 90dB(A).
+The law should not, and in other areas does not, deny protection to a minority simply because they are a minority.
+An employers duty extends to the protection of those of his employees who are, by dint of their susceptibility to injury, more likely to sustain it.
+Whatever may have been the position immediately after the Code was published, treating it as an enduring touchstone was no longer possible after 1976, in my opinion.
+The effect of ISO 1999, published in 1975 and BS 5330 in 1976 was described by Judge Inglis in para 87 of his judgment in the following passage: There is no doubt that research into the question of what risks to the hearing of employees exposure below 90dB(A)leq posed would have yielded the answer that 90dB(A) was not a natural cut off point, and that there were risks to susceptible individuals below that level.
+Indeed, the 1972 Guidelines themselves made that clear.
+From the early 1970s, certainly by 1976 with the publication of BS5330 and of lS0 1999 in the previous year, the information was available if researched to give an indication of the level of the risk.
+Judge Inglis considered that research was required to unearth the information that there was a risk to the hearing loss of some employees who were exposed to noise at a lesser level than 90 dB(A).
+There appears to me to be an inherent contradiction in play here.
+The Code has been hailed as the basis on which a reasonable and prudent employer might determine that protection was required.
+This obviously presupposes that the reasonable and prudent employer was aware of the contents of the Code.
+But within the very Code that provided the basis for the defence that an employer might deploy was the cautionary admonition that some workers would suffer some damage if exposed to noise levels of less than 90 dB(A).
+In this connection, Lord Dyson has said that the clear message of the Code was that the risk to particularly susceptible people was sufficiently small, both in terms of the numbers who might be affected and the seriousness of any damage that might result, to be acceptable.
+With respect, I cannot agree.
+Nowhere in the Code is any estimate made of the numbers who might constitute this exceptional category.
+Nor is there any assessment offered of the degree of disability that might accrue to those who were affected.
+What the 1972 Code should have conveyed to employers (especially those who sought subsequently to rely on it for the defence of noise induced hearing loss claims) was that an unquantified minority of their workforce would suffer hearing loss if exposed to noise levels at less than 90 dB(A).
+As a minimum, this should have made them alert to further information from public authority sources that might emerge in coming years.
+By contrast with the Code, ISO 1999 and BS 5330 did permit an estimate to be made of the number of workers who would be affected by exposure to various levels of noise below 90 dB(A).
+Thus, in para 13 of his judgment the judge, by reference to a table produced by Professor Lutman, was able to calculate that noise exposure of 85 dB(A)lepd over 40 years would cause 8.5dB hearing loss at 4khz.
+At para 14 the judge reproduced a table from a paper by Professor Robinson which showed that 10% of a typical population exposed for 30 years to 85dB(A)lepd will have a hearing loss of 35dB.
+This can be compared to a non noise exposed population, 10% of whom at age 48 would have a hearing loss of 31.5.
+It was thus possible to show that noise exposure added a further 3.5dBs of hearing loss in this percentile.
+And at para 21 the judge reproduced a further table from Professor Lutman which showed a 9dB threshold loss at 4 kHz in 5% of men exposed to 85 dB(A)lepd for 45 years.
+Now it is true, as Lord Mance has pointed out, that neither ISO 1999 nor BS 5330 purported to identify a maximum tolerable noise exposure.
+Indeed, both documents disavowed any attempt to do so.
+But that, as it seems to me, is neither here nor there.
+What is important in this context is that employers who exposed their employees to noise had been alerted in 1972 to the fact that some employees who were exposed to noise levels of less than 90 dB(A) would suffer hearing loss and in 1976 a means of calculating what percentage of their workforce would be affected was available to them.
+From 1976 onwards, therefore, employers, who should since 1972 have been alive to the dangers of noise induced hearing loss in a percentage of their employees exposed to levels of noise in excess of 85 dB(A), could estimate what the percentage was likely to be.
+All that was unknown was which particular workers would fall into that category.
+What was certain was that, if they were exposed over a sufficiently long period, some at least of their workforce would suffer permanent, irremediable damage to their hearing.
+Although that hearing loss would not be substantial, its impact on those who were affected by it is not to be underestimated.
+As the respondent submitted, it diminishes the lives of those who suffer from it in a real and significant way.
+The appellants have argued that a reasonable employer could not have been expected to read, absorb and apply ISO 1999 and BS 5330.
+I do not accept that argument.
+The cornerstone of the appellants defence is the Code of Practice of 1972.
+If this is proffered as the reason that it was acceptable for employers not to supply ear defenders to employees unless they were exposed to noise levels of 90 dB(A) and greater, it must also be acknowledged as the source of warning that noise levels less than that would damage some workers hearing.
+Thus alerted, it seems to me that an employers obligation to remain abreast of information that would allow him to know what percentage of his workforce was likely to be affected was plain.
+This conclusion does not conflict with the classic statement of principle by Swanwick J in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776, 1783: the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve.
+If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.
+While, for reasons that I shall discuss below, it could be concluded that a practice of recommending protection for those exposed to 90 dB(A) and above had grown up, so far from there being a recognised and general practice which had been followed for a substantial period in similar circumstances without mishap, as I have sought to demonstrate in the review of the various government publications on this subject, thinking on the problems of noise at work was characterised by uncertainty and qualification until 1972 and beyond.
+In the 1970s knowledge was developing and conclusions, albeit qualified conclusions, were emerging.
+There was a clear duty on the part of employers to keep abreast of these, a duty made all the more acute by the uncertainty of the past.
+The information that became available in 1975 and 1976 would have led to the conclusion that a sufficiently significant percentage of a workforce exposed to noise at levels greater than 85dB(A) would suffer a hearing loss.
+I therefore agree with Smith LJs analysis on this issue, although not with her conclusion on liability at common law.
+At para 101 of her judgment, Smith LJ said this: from July 1976, there was a method available which could be used by anyone with a modest degree of mathematical skill.
+Certainly any consultant acoustic engineer could have used the British Standard method.
+Accordingly, I conclude that by late 1976 or early 1977, the average sized employer in the knitting industry could and should have been able to make an informed assessment of the quantum of risk arising from the below 90dB(A)lepd noise in his workshops.
+As I have said above, this assessment would have led the employer to broadly the same conclusion as was reached by Judge Inglis.
+Once that assessment had been made, it could not in my judgment be said that it was not reasonably practicable to provide ear protectors.
+The conclusion reached by Judge Inglis referred to in this passage was that when exposed to noise above the level of 85dB(A) the risk of suffering hearing loss accelerates up to 90dB(A) and in the high 80s, given long enough exposure, significant hearing loss may be expected in at least a substantial minority of individuals.
+That important finding was not challenged either in the Court of Appeal or in this court.
+It appears to me to lie at the heart of the issue of the liability of the appellants at common law.
+The finding was complemented by another important conclusion reached by the judge, a conclusion which again no one has sought to challenge.
+At para 73 of his judgment he said: The evidence does not show that at any time the cost of implementing a policy of voluntary hearing protection at levels below 90dB(A) was such that a reasonable employer could use cost or difficulty as a valid reason for not having such a policy.
+Shortly put, therefore, from 1977 onwards an employer in the knitting industry should have known that a percentage of his workforce would suffer hearing loss if they were exposed to and remained unprotected from noise levels of more than 85dB(A).
+Such an employer should also have known that he could provide ear protection that would have reduced the risk of that hearing loss occurring at not inordinate cost.
+Both Judge Inglis and Smith LJ appear to have absolved employers of liability at common law because, until the late 1980s, advice was not given to them that ear protection was required for noise levels below 90 dB(A).
+The failure to give this advice seems to have been due to the manner in which the experts addressed the question.
+Thus in paras 46 and 47 of Judge Ingliss judgment the following appears: There was evidence given by the expert witness engineers for Courtaulds (Mr Bramer and Mr Currie) about the approach to control of noise in the period from the 1970s in industry.
+The report of Mr Worthington for Pretty Polly and Guy Warwick is also in evidence.
+To Mr Bramer, the guidance in Noise and the Worker and the 1972 Guidelines provided a "clear and consistent recommendation to employers as to how they ought to deal with noise in the workplace".
+The result was that in his practice, his invariable advice until the late 1980s, was that "the relevant level was a daily personal noise exposure of 90dB(A)".
+This approach, he said, was standard during the period up to 1989 among noise professionals, and taught at training courses.
+In the mid 1980s, when it appeared that EEC regulation would involve a first action level of 85dB(A) his advice changed to reflect that.
+He was not aware of the NPL tables before the 1980s when he found that they were being used by medical experts writing reports for the purpose of deafness claims.
+He has never come across them being used in any part of industry.
+In evidence Mr Bramer said that he gave advice to employers in terms of complying with the 1972 Code.
+He was speaking to the 90dB(A) level, as were all his colleagues.
+He agreed that the advice would be to answer the question "Tell us how to comply with legislation and the Code of Practice", rather than "Tell me how to avoid reasonably foreseeable risk to my workforce".
+He would have recommended 90dB(A) as the cut off point, but would also have said "that does not actually stop some more susceptible people from having some small noise induced hearing loss".
+If asked about risk, he would have had some difficulty, and regarded the question as more one for medical people. 47.
+Mr Currie said that the Health and Safety Executive and factory inspectors after the 1974 Act concentrated their advice and enforcement on the 90dB(A) level.
+He was not aware of any instance in which the NPL tables had been used by employers to predict the level of risk for their workforce.
+In evidence Mr Currie said that good practice won't necessarily remove all risk.
+He agreed that there has been no very different understanding about noise induced hearing loss since the 1970s.
+The first thing to look at when deciding on practices, which is what employers have to do, is to look at the guidance available.
+Mr Worthington's report is to the effect that employers looked to the 90dB(A) limit in the Code of Practice as the maximum acceptable limit, and that the Factory Inspectorate and HSE did not refer employers to the risks below that limit as risks about which they should take action.
+That was the practice of the day, and employers taking advice, if they did, would be referred to the standard in the Code as being what had to be observed.
+Mr Bramers evidence, recorded uncritically by Judge Inglis, so far from bolstering the case for the appellants, seems to me to have exposed critical weaknesses in it.
+To deliver invariable advice that the relevant level was a daily personal noise exposure of 90dB(A) (by which, one presumes, he means that it was acceptable to ignore dangers arising from noise exposure below that level) crucially fails to take account of the unambiguous evidence that risks to a percentage of employees from exposure to noise of over 85 dB(A) had been recognised.
+What was to become of this group in Mr Bramers equation? Were they to be discounted as an insignificant minority? If so, on what basis did he assess their significance? And on what basis did he conclude (if indeed he did conclude) that the hearing loss that they would sustain could be overlooked?
+Of course, Mr Bramer sidestepped most of these difficult issues by saying that he tailored his advice to address the question how would the legislation and the Code of Practice be complied with, rather than how could the employer comply with his elementary duty of avoiding foreseeable risk to his employees.
+Judge Inglis appears again not to have cast a critical eye on this aspect of Mr Bramers testimony and the Court of Appeal was likewise silent as to its reaction to it.
+But the fundamental duty of an employer is that he should ascertain by whatever reasonable means are at his disposal, what are the likely dangers to his employees from the work that he asks them to do and that he should then do what he reasonably can to avoid those dangers.
+Mr Bramer gave evidence that if he had been asked what appears to me to be not only the right, but also the obvious, question of how to avoid reasonably foreseeable risk to employees, he would have adverted to the fact that some risk to susceptible employees of small noise induced hearing loss would arise.
+But he would not have been able to assess what that risk was, how many employees would be affected nor the level of disability that it would give rise to, these matters lying more in the province of medical people.
+Of course he was not asked the right and obvious question.
+He ought to have been.
+But if he had been asked that question, he could not have given any meaningful reply.
+It seems to me remarkable that an employer who should have asked, in light of what the Code of Practice had said, what were the dangers to the minority of his workforce who would suffer damage to their hearing by exposure to levels of noise that were current in his factory and what he could do about those dangers, can be relieved of liability because he did not ask the right question and because his expert did not direct him to the right issue.
+The evidence of Mr Currie and Mr Worthington is open to the same criticisms which attach to that of Mr Bramer.
+The fact that after the 1974 Act the Health and Safety Executive and factory inspectors concentrated their advice and enforcement on the 90dB(A) level does not relieve employers of the duty to inform themselves of the true purport of the available evidence.
+After all, Judge Inglis was able to calculate without difficulty what percentage of workers would be likely to suffer hearing loss on the basis of data that were available to any employer from 1977 onwards.
+He may have been directed to those data by reports of the experts produced at trial but the data existed in the 1970s.
+Employers and those who advised them ought to have considered those data shortly after they became available in 1976; they should have made the calculation that Judge Inglis was able to make many years later; they ought to have concluded, as he did, that a significant minority would suffer hearing loss if exposed to noise levels exceeding 85 dB(A) over a prolonged period; they should have discovered that this could be avoided by the provision of ear defenders at not unreasonable cost; and they should have provided their workers with those ear defenders.
+Because of their failure to do so, they were, in my opinion, guilty of negligence.
+In reaching this conclusion I have kept in mind the salutary warning of Mustill J in Thompson v Smith Shiprepairers [1984] QB 405, 422 where he said: One must be careful, when considering documents culled for the purpose of a trial, and studied by reference to a single isolated issue, not to forget that they once formed part of a flood of print on numerous aspects of industrial life, in which many items were bound to be overlooked.
+However conscientious the employer, he cannot read every textbook and periodical, attend every exhibition and conference, on every technical issue which might arise in the course of his business; nor can he necessarily be expected to grasp the importance of every single item which he comes across.
+The employers in this appeal and their advisers were not required to immerse themselves in esoterica in order to understand what I believe to be the clear and simple import of the material that confronted them.
+The evidence that some of their employees were at risk was unmistakable.
+Hindsight is not required in order to see that clearly.
+The means of mitigating that risk were also clear.
+The need to take the necessary steps cannot plausibly be challenged.
+It is not only unnecessary, in light of my view about the common law liability of the appellants from the late 1970s onwards, for me to embark on any exegesis about how soon employers should have been alerted by the imminence of European legislation to the need to protect workers from noise levels of 85dB(A), it would be inappropriate for me to do so on what would be an academic basis.
+In my view, their liability arose much earlier.
+The employers liability under statute
+As Lord Mance has said, several issues arise in addressing the questions whether section 29 of the Factories Act 1961 covers exposure to noise in the workplace, and, if so, what standards it sets.
+It seems to me that these can be grouped in four categories.
+First whether the section is designed to cover only the physical fabric and structure of the workplace.
+Second, are the duties imposed applicable only to occupiers as opposed to employers? (This issue was raised for the first time on the hearing of the appeal to this court).
+Thirdly, even if activity within the workplace is covered, does it apply to environmental conditions which may only have a deleterious effect over a long period of time? Finally, what does safe mean? Does it mean what can be reasonably foreseen or does it set an absolute standard?
+On the first of these issues, for the reasons given by Lord Mance, with which I agree, the answer must surely be that activities carried on in the workplace which render it unsafe, come clearly within the embrace of the section.
+The context of the provision is the protection of workers in factories.
+The nature of factories is that employees will carry on working activities, some at least of which will carry potential, inherent dangers.
+When an employer is enjoined to provide a safe place of work, it can only be for the purpose of ensuring that the work that is carried on in the place where it occurs does not jeopardise the employees safety.
+The work activity cannot be divorced from the physical location where it takes place.
+On the second question, it is, I think, significant that neither employer nor occupier is defined in the legislation and the terms, I am satisfied, are used interchangeably throughout the Act.
+Employers duties are imposed and require to be discharged in the factory setting.
+It would thwart the entire purpose of the legislation to confine the discharge of those duties artificially to occupiers and to exempt employers from their reach.
+I have concluded that the duties arising under the Factories legislation were intended to be imposed on employers, whether they be occupiers or not.
+The third question does not admit of quite such an easy answer as the first two.
+It is, I believe, helpful to have regard to the general character or nature of the provision and the timing of its enactment.
+It is a provision which imposes a general requirement and it can be assumed, I think, that Parliament realised that it would be impossible, at the moment of its enactment, to prescribe comprehensively all the ways in which a place of work might become dangerous.
+This was therefore a catch all provision designed to ensure that workplaces be kept safe in any and all of the myriad ways that danger might arise in the future.
+One rather prosaic way of considering the question might be to imagine what the response of the enactors of the legislation might be if they had been asked in 1961, whether, if in 20 years time it proved that a workroom where women were required to operate knitting machines at a level of noise that would irreversibly damage their hearing, they intended that the requirement that employers maintain a safe place of work should apply to that situation.
+I believe that their answer would unquestionably be yes.
+A rather more principled way of addressing the question can be found in Bennions treatment of the subject of the presumption that an updating construction is to be given to an enactment.
+At section 288 of the fifth edition (2008) of his work on Statutory Interpretation, he says this: Section 288.
+Presumption that updating construction to be given (1) With regard to the question of an updating construction, Acts can be divided into two categories, namely the usual case of the Act that is intended to develop in meaning with developing circumstances (in this Code called an ongoing Act) and the comparatively rare case of the Act that is intended to be of unchanging effect (a fixed time Act). (2) It is presumed that Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wording to allow for changes since the Act was initially framed (an updating construction).
+While it remains law, it is to be treated as always speaking.
+This means that in its application on any date, the language of the Act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law. (3) A fixed time Act is intended to be applied in the same way whatever changes might occur after its passing.
+Updating construction is not therefore applied to it. (4) Where, owing to developments occurring since the original passing of an enactment, a counter mischief comes into existence or increases, it is presumed that Parliament intends the court so to construe the enactment as to minimise the adverse effects of the counter mischief.
+This appears to me to be a classic case of the mischief of noise induced hearing loss from exposure to 85 dB(A) becoming recognised during the lifetime of the relevant legislation.
+An updating construction is clearly called for and should be applied to the updated mischief.
+The always speaking principle is well established.
+Its clearest exposition remains that of Lord Wilberforce in Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800, 822: In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time.
+It is a fair presumption that Parliament's policy or intention is directed to that state of affairs.
+Leaving aside cases of omission by inadvertence, this being not such a case, when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the parliamentary intention.
+They may be held to do so, if they fall within the same genus of facts as those to which the expressed policy has been formulated.
+They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made.
+How liberally these principles may be applied must depend upon the nature of the enactment, and the strictness or otherwise of the words in which it has been expressed.
+The discernible policy of section 29 was to ensure that the place at which employees had to work was safe and since, for the reasons given, this aspiration was directed not only at the fabric and structure of the place but also at the working activities within it, the fresh set of facts represented by the risks of hearing loss from exposure to noise must be taken to fall within the parliamentary intention.
+Indeed, to exclude noise as a possible means by which a place of work might be rendered unsafe would run directly counter to the parliamentary intention that places of work were generally rendered into a safe condition.
+Now that it is well known that exposure to loud noise in a working environment without protection will bring about irreversible hearing loss, it is inconceivable that noise should not be accommodated within the reach of the section.
+The final question is perhaps the most difficult.
+Must safety be seen as an objective standard or is it a relative concept? The straightforward answer is that a place is safe or it is not.
+A place which is not safe cannot be said to be safe merely because it is believed to be, however justified the belief.
+Lord Mance has said that there is no such thing as an unchanging concept of safety.
+I agree, but as he has also observed, safety must be assessed objectively.
+It appears to me that the truly critical question is to which point in time should the assessment relate.
+Lord Mances view is that what he describes as a retrospective assessment based on knowledge current at the time that the court is considering the matter is impermissible.
+I am afraid that I cannot agree with that view.
+I do agree, however, that safety, in the context of section 29, does not connote absolute safety in the sense of the elimination of every conceivable risk.
+As was said in Sheppey v Matthew T Shaw & Co Ltd [1952] 1 TLR 1272 and Trott v WE Smith (Erectors) Ltd [1957] 1 WLR 1154 (CA) (to which Lord Mance has referred) a safe means of access does not mean absolutely safe so that no accident could possibly occur.
+But as Parker J in Sheppey pointed out, simply because safe does not mean absolutely safe, it does not follow that it means reasonably safe.
+A means of access is unsafe if it is a possible cause of injury to anybody acting in a way a human being may be reasonably be expected to act.
+There is nothing in Sheppey or Trott which suggests that the court in either case considered that safety had to be judged solely according to the state of knowledge at the time that the injury was sustained.
+Of course, neither case involved a re evaluation of what constituted safe in the light of evolving knowledge.
+As I have said, both cases are authority for the proposition that safe does not mean absolutely safe but I do not consider that this provides the answer to the question whether safety is to be judged by reference to what was believed to be safe at the time that the damage occurred.
+Therefore, when Lord Hope in R v Chargot Ltd (trading as Contract Services) [2008] UKHL 73; [2009] 1 WLR 1, 12 13 said that the Health and Safety at Work etc Act 1974 was not contemplating risks which are trivial or fanciful, and that the statutory framework was intended to be a constructive one, not excessively burdensome, and that the law does not aim to create an environment that is entirely risk free, he should not, in my opinion, be taken as suggesting that a state of affairs which is undoubtedly unsafe should be held not to have been unsafe for the purposes of the legislation simply because, at the time that injury was suffered, it was believed to be safe.
+Since safety is not an absolute, immutable concept, forseeability may play a part in the assessment whether a place was safe but I do not believe that this must necessarily be rooted in perceptions of what was historically considered to be safe.
+There is nothing wrong in principle in recognising that a place of work was unsafe based on contemporary knowledge.
+Forseeability of risk based on current information is relevant to the judgment whether a place of work was in fact safe.
+Thus, since it is now indisputable that a substantial minority of employees will develop hearing loss if exposed to noise levels of more than 85 dB(A) over a prolonged period, it is possible to recognise that the place at which the respondent was required to work was unsafe within the meaning of section 29.
+The role played by forseeability in this context is necessarily limited.
+It is confined to the judgment as to what is necessary, in light of all currently available information, to render a workplace free from such risks as might befall anybody acting in a way a human being may be reasonably be expected to act.
+By contrast, however, reasonable practicability does import consideration of what was known at the time that the injury was sustained.
+By definition it cannot be reasonable to put in place measures that are not known to be necessary.
+It may be practicable to do so but it cannot be said to be reasonably practicable.
+As the Court of Appeal in the present case said at para 83 of Smith LJs judgment, it is a matter of common sense [that], if the employer does not know of the risk and cannot reasonably have been expected to know of it, it cannot be reasonably practicable for him to take any steps at all.
+Once it is clear that the employer knew or should have known that there was a risk, an evaluation of the chances of the risk materialising is relevant to an examination of what it is reasonably practicable for an employer to do as Lord Goff put it in Austin Rover Group Ltd v HM Inspector of Factories [1990] 1 AC 619, 626 627: for the purpose of considering whether the defendant has discharged the onus which rests upon him to establish that it was not reasonably practicable for him, in the circumstances, to eliminate the relevant risk, there has to be taken into account (inter alia) the likelihood of that risk eventuating.
+The degree of likelihood is an important element in the equation.
+It follows that the effect is to bring into play forseeability in the sense of likelihood of the incidence of the relevant risk, and that the likelihood of such risk eventuating has to be weighed against the means, including cost, necessary to eliminate it.
+I agree with Smith LJ in her conclusion (at para 84 of her judgment) that for the defence to succeed, the employer must establish a gross disproportion between the risk and the measures necessary to eliminate it.
+In the words of Asquith LJ in Edwards v National Coal Board [1949] 1 KB 704, 712, the risk [must be] insignificant in relation to the sacrifice.
+In the present case, the provision of ear defenders at relatively modest cost was entirely practicable.
+For that reason, and since I have concluded that the employers ought to have been aware of the risk of noise induced hearing loss to the respondent, I do not consider that the defence of reasonable practicability was available to them.
+Conclusions
+Although the respondent has chosen, for what her counsel described as pragmatic reasons, not to challenge the findings of the Court of Appeal as to the date on which the appellants could have been said to be negligent for failing to recognise the risk of noise induced hearing loss, I have concluded that this was much earlier than was found by Smith LJ.
+Since the Court of Appeals findings on this issue were not challenged by the respondent, however, and since I have found that the statutory defence was not available to the appellants, I must content myself with saying that I would dismiss the appeal.
+LORD CLARKE
+Introduction
+As Lord Dyson observes, the history and awareness of the risks of occupational exposure to noise have been fully set out by Lord Mance.
+In addition, the issues have been discussed in considerable detail by Lord Mance, Lord Kerr and Lord Dyson.
+I shall therefore try not to repeat what they say, save in so far as it is necessary to explain the conclusions which I have reached.
+One of the striking features of the issues in this case, at any rate as it seems to me, is that the science upon which decisions as to what precautions employers should take to protect their employees from hearing loss caused by noise in the workplace had scarcely changed since the research carried out by Burns and Robinson in 1970, which led to the Code of Practice in 1972.
+All that has changed is the formation of a different view on the part of industry and the regulators as to the level of risk that it is acceptable to disregard.
+In these cases the claimants allege breaches by the employers of their duty under section 29(1) of the Factories Act 1961 (the 1961 Act), so far as reasonably practicable, to make and keep their place of work safe for them.
+If there is a breach of this duty, the question whether they were also in breach of their duty of care at common law becomes irrelevant because, so far as I am aware, nobody suggests that the claimants could recover more or different damages at common law from those recoverable for breach of statutory duty.
+I shall therefore consider first the issues under section 29.
+It is important to keep the questions relevant to the two bases of claim separate because the issues are different.
+If section 29 applies, the approach to the question whether there was a breach of duty under that section is materially different from the approach to the question whether there was a breach of duty at common law.
+Lord Wright made this clear in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152, 178 and London Passenger Transport Board v Upson [1949] AC 155, 168.
+Section 29 the principles
+Section 29(1) of the 1961 Act provided: There shall, so far as is reasonably practicable, be provided and maintained safe means of access to every place at which any person has at any time to work, and every such place shall, so far as is reasonably practicable, be made and kept safe for any person working there.
+The first question that arises is whether section 29(1) applies in this class of case.
+Lord Mance discusses this question in detail.
+He asks three questions.
+They are whether section 29(1) applies to activities carried on in the workplace, whether it applies to risks of noise induced hearing loss arising from such activities in relation to long term employees working in the workplace and what is the meaning of safe.
+He answers the first two questions in the affirmative.
+Both Lord Kerr and Lord Dyson agree with him, essentially for the reasons he gives.
+So do I.
+In particular, I agree with Lord Kerr and Lord Dyson that, for the reasons they give, the language of the section is always speaking.
+I agree with Lord Kerr that in this context safety cannot connote absolute safety: Sheppey v Matthew T Shaw & Co Ltd [1952] 1 TLR 1272 and Trott v WE Smith (Erectors) Ltd [1957] 1 WLR 1154.
+In Sheppey Parker J said that it cannot mean absolutely safe in the sense that no accident could possibly occur.
+Trott was concerned with regulation 5 of the Building (Safety, Health and Welfare) Regulations 1948 (SI 1948/1145), which included a provision that: . sufficient safe means of access shall so far as is reasonably practicable be provided to every place at which any person has at any time to work.
+The Court of Appeal accepted that the regulation did not require absolute safety.
+Parker J was by now Parker LJ.
+He said at p 1162 that a means of access was not safe within regulation 5 if it was a possible means of injury to someone acting in a way that a human being might reasonably be expected to act in circumstances that might reasonably be expected to occur.
+I would accept that approach.
+The section does not say reasonably safe.
+Nor does it say that the workplace is safe if it is believed to be safe.
+The question remains simply whether the workplace was, at the relevant time, safe.
+I note in passing that Jenkins LJ said at p 1158 that the obligation to provide a safe means of access so far as reasonably practicable placed a stricter obligation on the employer than is placed upon him in the discharge of the general duty of reasonable care at common law.
+I agree.
+The word safe in section 29(1) is not limited by the concept of reasonable foreseeability.
+However, as Lord Mance and Lord Dyson have explained, there is a line of authority that it should be construed as if it were, by reference to the meaning of dangerous in section 14(1) of the 1961 Act and its predecessors.
+See eg Hindle v Birtwhistle [1897] 1 QB 192, John Summers & Sons Ltd v Frost [1955] AC 740, Close v Steel Co of Wales Ltd [1962] AC 367 and, to similar effect, the unreported decision of Rose J in Taylor v Fazakerley Engineering Co, 26 May 1989.
+This line of authority imports the concept of reasonable foreseeability into the meaning of safe on the basis that safe is the converse of dangerous: see to this effect the judgment of Diplock LJ in Taylor v Coalite Oils & Chemicals Ltd [1967] 3 KIR 315 and Allen v Avon Rubber Co Ltd [1986] ICR 695.
+There is, however, a second line of authority in which the Court of Appeal and the Extra Division of the Inner House of the Court of Session concluded that it is inappropriate to equiparate section 14 with section 29 of the 1961 Act: see Larner v British Steel plc [1993] ICR 551, Neil v Greater Glasgow Health Board [1994] SLR 673, Mains v Uniroyal Engelbert Tyres Ltd [1995] SC 518 and Robertson v RB Cowe & Co [1970] SLT 122.
+I do not think there is any basis on which it is possible to distinguish this second line of authority.
+The question then arises which line of authority to follow.
+I see the force of the approach of Lord Mance and Lord Dyson, which is to prefer the first strand of authority: see Lord Mance at para 71 and Lord Dyson at para 118.
+For my part I prefer the second.
+I do so for these reasons.
+The reasoning in the second line of cases is to my mind compelling.
+In particular, it is supported by the language of section 29(1), which is not reflected in section 14(1).
+This is emphasised by the reasoning of both Hirst LJ and Peter Gibson J in the Court of Appeal in Larner.
+At p 559 Hirst LJ quoted from the 11th edition of Munkmans Employers Liability (1990), pp 292 293: (v) When is access or place unsafe? Safe is, however, a simple English word and there is no reason why it should not be decided as a pure question of fact whether a place is safe or not.
+Unfortunately, the vague and uncertain notion of foreseeability has been introduced as a test.
+Hirst LJ added at pp 559 560 This view seems to me to have considerable force in the light of the very clear wording of section 29(1), which contains no reference to foreseeability, and seeing that, if [counsels] argument is correct, the distinction between the common law duty of care and the statutory duty will be virtually obliterated.
+Peter Gibson J said at pp 560 561 that the way in which the duty in section 29(1) was framed made it clear that to make good a claim for breach of statutory duty under section 29(1) the plaintiff had to allege and prove injury while and in consequence of working at a place at which he had to work and that such place was not made or kept safe for him.
+It was then for the employer to establish that it was not reasonably practicable to make and keep such place safe.
+It was common ground in the present appeal that in this last respect the burden was on the employer: Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107, Gibson v British Insulated Callenders Construction Co Ltd 1973 SLT 2 and Bowes v Sedgefield District Council [1981] ICR 234.
+In Larner the employer had not sought to discharge that burden; so the critical issue was whether the workplace was safe.
+This raised two questions.
+The first was whether the word safe meant safe from a reasonably foreseeable danger, so that a workman injured at his place of work by an accident which the employer could not reasonably foresee was unable to succeed in a claim for breach of statutory duty.
+The second question was whether, if so, the danger was reasonably foreseeable on the facts.
+Peter Gibson J answered the first question no.
+He did so convincingly and with clarity, by reference both to the language of section 29 and to the authorities.
+He said this at p 562: I start by considering the words of section 29(1) apart from authority.
+They contain no express reference to foreseeability, reasonable or otherwise.
+Safe is an ordinary English word and I cannot see any reason why the question whether a place of work is safe should not be decided purely as a question of fact, without putting any gloss on the word: see Munkman, Employer's Liability, p 292.
+Further, to imply words in the section so as to introduce a test of reasonable foreseeability is to reduce the protection afforded by the Act of 1961 for the workman, the plain object of the section being to provide for a safe working place: see Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107, 122, per Lord Guest.
+On principle and on authority that is impermissible: see John Summers & Sons Ltd v Frost [1955] AC 740, 751, per Viscount Simonds.
+This is not unfair on the employer whose duty to make and keep the working place safe is qualified by so far as is reasonably practicable, and I see no necessity to imply any other qualification.
+It would also seem wrong to me to imply a requirement of foreseeability, as the result will frequently be to limit success in a claim for breach of statutory duty to circumstances where the workman will also succeed in a parallel claim for negligence; thus it reduces the utility of the section. [Counsel] accepted that there was no authority that compels us to conclude that section 29 requires such a test and in Robertson v RB Cowe & Co, 1970 SLT 122 an argument that the test of reasonable foreseeability applied to section 29(1) was specifically rejected by the First Division of the Inner House of the Court of Session.
+However, [counsel] referred us to a number of other authorities in which the reference to safety in section 29 and other similar statutory provisions has been construed as importing the test of reasonable foreseeability.
+These authorities are based on certain comments by Lord Reid in the John Summers case [1955] AC 740 on the meaning of dangerous in section 14(1) of the Factories Act 1937.
+That subsection imposed the duty that Every dangerous part of any machinery shall be fenced.
+Lord Reid referred, at pp 765766, to what du Parcq J said in Walker v Bletchley Flettons Ltd [1937] 1 All ER 170, 175: a part of machinery is dangerous if it is a possible cause of injury to anybody acting in a way in which a human being may be reasonably expected to act in circumstances which may be reasonably expected to occur and queried the word possible, adding If the question of degree of danger has to be considered it might perhaps be better to say a reasonably foreseeable cause of injury.
+These comments on the meaning of dangerous in that provision which contains no qualification of reasonable practicability have, surprisingly, been relied on in obiter comments on the meaning of its antonym safe in section 29 of the Act of 1961 and other similar provisions notwithstanding that they do contain such a qualification.
+Peter Gibson J then noted that the views to the contrary by Diplock LJ in Taylor v Coalite were obiter and expressed before the decision in Nimmo, where Lord Guest said this at p 122: To treat the onus as being on the pursuer seems to equiparate the duty under the statute to the duty under common law, namely, to take such steps as are reasonably practicable to keep the working place safe.
+I cannot think that the section was intended to place such a limited obligation on employers.
+Peter Gibson J referred to three conflicting Scottish cases, namely Keenan v Rolls Royce Ltd 1970 SLT 90, Robertson v RB Crowe & Co 1970 SLT 122 and Morrow v Enterprise Sheet Metal Works (Aberdeen) Ltd 1986 SLT 697.
+He concluded that on the then state of the authorities the court was free to choose whether to apply the test of reasonable foreseeability.
+In agreement with Hirst LJ he said that he preferred to read the section without implying any such test.
+I entirely agree with both the approach of Peter Gibson J and with his reasons, which he put very clearly.
+Section 14 was in significantly different terms from section 29(1).
+It provided, so far as relevant: (1) Every dangerous part of any machinery shall be securely fenced unless it is in such a position or of such construction as to be as safe to every person employed or working on the premises as it would be if securely fenced.
+It is noteworthy that there was no reference in section 14 either to reasonable foreseeability or to reasonable practicability.
+In Mains v Englebert Tyres, which was a decision of the Inner House, both Lord Sutherland and Lord Johnston convincingly rejected the suggestion that section 29 should be construed by reference to the construction of section 14.
+The Lord Ordinary had rejected the pursuers case on the basis that the accident had not been reasonably foreseeable.
+The Inner House, comprising Lord Sutherland, Lord Johnston and Lord Wylie allowed the pursuers appeal.
+They rejected the argument that reasonable foreseeability was a necessary prerequisite in the determination of whether or not a place of work was made and kept safe within the meaning of section 29(1).
+Lord Sutherland, with whom Lord Wylie agreed, analysed the authorities in some detail at pp 521 to 530.
+He agreed with the decision in Larner.
+At pp 530 to 531 he expressed his reasons, both as to the meaning of safe and as to the scope of the defence of reasonable practicability.
+In short, he concluded that reasonable foreseeability was not relevant to the question whether the workplace was safe but was relevant to the question whether it was reasonably practicable for them to prevent the breach.
+He said this: In my opinion, the construction of section 29(1) must depend upon the wording of that section itself.
+Since Nimmo the obligation under the section must be read as being that every working place shall be made and kept safe.
+If that obligation has not been met then it may be open to the employers to invoke the qualification that it was not reasonably practicable for them to prevent the breach and it may well be that reasonable foreseeability has a part to play in that.
+As considerations of reasonable practicability involve weighing the degree and extent of risk on the one hand against the time, trouble and expense of preventing it on the other, quite clearly foreseeability comes into the matter as it is impossible to assess the degree of risk in any other way.
+To that extent I agree that reasonable foreseeability can play its part in a consideration of section 29(1) but only at the later stage of considering whether the employers have discharged the onus upon them of showing that there were no reasonably practicable precautions which could have been taken.
+The initial part of the section is, in my view, clear.
+The duty is to make the working place safe.
+That means that there is a duty to prevent any risk of injury arising from the state or condition of the working place.
+There is nothing whatever in the section to suggest that the obligation is only to prevent any risk arising if that risk is of a reasonably foreseeable nature.
+Had that been the intention of Parliament it would have been perfectly simple for Parliament to have said so.
+If the duty had only been to take reasonably practicable precautions against reasonably foreseeable risks it is difficult to see how this section would have added anything of substance to the common law.
+Where the statute is designed to protect the safety of workmen it is, in my view, not appropriate to read into the statute qualifications which derogate from that purpose.
+It cannot be said that this reading of section 29 imposes an intolerable or impossible burden upon employers.
+They have the opportunity of establishing that there were no practicable precautions which could have been taken to prevent their breach of obligation.
+If they can do so they have a complete answer both to civil and criminal liability even though they are prima facie in breach of their obligation.
+This puts section 29 into an entirely different category from section 14 and I see no legitimate reason for forcing a construction upon section 29 which its plain words will not bear just because in the different context of section 14 the word dangerous has been construed in a particular way.
+Lord Johnston said this at pp 535 to 536, with particular reference to the relationship between sections 14 and 29: I do not consider that it is appropriate to equiparate section 14 with section 29, with particular reference to the line of authority construing the word dangerous in section 14.
+In my opinion that issue arises under that section in order to determine the scope of the section in the particular instance and indeed whether it applies at all.
+Whether rightly or wrongly, accordingly, the fact that the courts have interpreted dangerous under reference to reasonable foreseeability does not mean that necessarily the same criteria should apply when considering a different provision raising the questions of safety, particularly where that latter provision is qualified by a so called escape clause, viz reasonable practicability, and section 14, when it comes to breach, is absolute.
+I do not consider that it is appropriate to apply the law which limits or determines the scope of section 14 before considering a breach of it, to what constitutes a breach of section 29(1) under reference to safety or lack of it.
+I therefore consider that section 29(1) stands on its own and authorities relating to section 14 fall to be ignored.
+While, as a matter of English language, safe may be the converse of dangerous, in my opinion section 29 has to stand on its own and be construed as such.
+I entirely agree with the reasoning of Lord Sutherland and Lord Johnston in those passages.
+In doing so, I do not conclude that safe is not the antonym of dangerous in the two sections, only that there is nothing in section 29 to introduce the principle of reasonable foreseeability into the meaning of safe.
+I note in passing that, as Lord Mance says at para 67, the Close line of case law has received mixed academic commentary.
+It was criticised by Munkman in his article The Fencing of Machinery 1962 LJ 761, where he said at p 761 that foreseeability is not to be found in the Factories Act, that it is an alien importation from the law of negligence and that, since negligence is a lower standard of liability, to import its concepts would necessarily reduce liability under the statute.
+Close was also criticised by the authors of the 1970 72 Safety and Health at Work Report of the Committee chaired by Lord Robens.
+Appendix 7 reviewed the case law on statutory safety provisions.
+At para 7 on p 186, the authors criticised the Close line of case law as contrary to the interests of accident prevention.
+In my opinion, given that the section 14(1) cases are susceptible to criticism, even on their own terms, we should be cautious about transferring the rationale to other provisions, particularly when so many cases have decided that it is inappropriate to do so.
+The language of section 29(1) to my mind shows that it is a results provision.
+That it provides that, subject to the defence of reasonable practicability, it requires that the workplace be and remain safe.
+Lord Johnston put it thus in Mains at p 536: The obvious starting point in my opinion is that the wording of the section, putting aside the qualification, does not admit immediately any reference to reasonable foreseeability.
+The verb shall is relentless and the phrase made and kept safe, if looked at on the basis of made and kept accident free, would immediately admit a construction so far as these words go that if an accident occurs within the workplace and related to it the pursuer need prove no more.
+The defender then can raise the issue of reasonable practicability on any basis that he thinks fit.
+Some reference has been made to sections 2 and 3 of the Health and Safety at Work etc Act 1974.
+Section 2(1) provides that it is the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees and section 3(1) provides that it is the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.
+In para 63 Lord Mance has made some reference to the decision of the House of Lords and to the speech of Lord Hope, with whom the other members of the House agreed, in R v Chargot Ltd (trading as Contract Services) [2008] UKHL 73, [2009] 1 WLR 1.
+As I read Lord Hopes judgment in that case, the central issue was whether in prosecutions for breaches of those duties it was for the prosecution to prove the acts and omissions by which it was alleged there had been a breach of duty and, in particular, whether it was enough for it simply to assert that a state of affairs existed which gave rise to risk to health or safety: see the statement of the issues at para 15.
+This involved a consideration of the scope of the duties in paras 17 to 21.
+In para 17 Lord Hope noted that both sections provided for a duty to ensure certain things.
+He then asked what the employer must ensure and concluded: The answer is that he is to ensure the health and safety at work of all his employees, and that persons not in his employment are not exposed to risks to their health and safety.
+These duties are expressed in general terms, as the heading to this group of sections indicates.
+They are designed to achieve the purposes described in section 1(1)(a) and (b).
+The description in section 2(2) of the matters to which the duty in section 2(1) extends does not detract from the generality of that duty.
+They describe a result which the employer must achieve or prevent.
+These duties are not, of course, absolute.
+They are qualified by the words so far as is reasonably practicable.
+If that result is not achieved the employer will be in breach of his statutory duty, unless he can show that it was not reasonably practicable for him to do more than was done to satisfy it.
+The same is true of section 29(1), as Lord Hope explained in para 18, by reference to Nimmo, to which I have already referred.
+He said that this method of prescribing a statutory duty was not new.
+As Lord Reid explained in the opening paragraphs of his speech in Nimmo, the steps which an employer must take to promote the safety of persons working in factories, mines and other premises are prescribed by a considerable number of statutes and regulations.
+Sometimes the duty imposed is absolute.
+In such a case the step that the statutory provision prescribes must be taken, and it is no defence to say that it was impossible to achieve it because there was a latent defect or that its achievement was not reasonably practicable.
+In others it is qualified so that no offence is committed if it was not reasonably practicable to comply with the duty.
+Sometimes the form that this qualified duty takes is that the employer shall do certain things, of which Lord Hope gave a number of examples.
+He added that sometimes the statute provides that the employer must achieve or prevent a certain result.
+He concluded thus: Section 29(1) of the Factories Act 1961, which was considered in Nimmo, took that form.
+So too do sections 2(1) and 3(1) of the 1974 Act.
+It is the result that these duties prescribe, not any particular means of achieving it.
+So the House of Lords recognised in Chargot that section 29(1) prescribed a certain result, namely that the workplace must be kept safe, subject of course to the employer showing that it was not reasonably practicable to do so.
+Lord Mance, however, relies upon para 27 of Lord Hopes speech, where he said this: The framework which the statute creates is intended to be a constructive one, not excessively burdensome.
+The law does not aim to create an environment that is entirely risk free.
+It concerns itself with risks that are material.
+That, in effect, is what the word risk which the statute uses means.
+It is directed at situations where there is a material risk to health and safety, which any reasonable person would appreciate and take steps to guard against.
+It is important to note that there is a distinction between the language of sections 2 and 3 of the 1974 Act on the one hand and section 29 of the 1961 Act on the other.
+As I read it, para 27 does not detract from Lord Hopes previous statement at para 17 that the obligation to achieve the statutorily prescribed result is absolute.
+Rather, it is by analysing the result prescribed by sections 2 and 3 of the 1974 Act by reference to the use of the word risk that he imports the notion of relativity, namely that the result is to protect against material risks.
+Given the difference between the wording of the sections, I am not persuaded that the reasoning in para 27 is applicable to section 29(1) of the 1961 Act.
+Both Lord Mance and Lord Dyson (at paras 64 and 111 respectively) refer to passages from the speeches of Lord Nicholls and Lord Hobhouse in R (Junttan Oy) v Bristol Magistrates Court [2003] UKHL 55, [2003] ICR 1475, again to the effect that safety is a relative concept.
+The issue was whether there was any difference between the standards set by the Machinery Directive 98/37/EC and those set by the 1974 Act.
+Both require machinery to be safe.
+It was in the context of the discussion of that issue that Lord Nicholls said at para 22: Section 6(1)(a) of the 1974 Act imposes a duty to ensure, so far as is reasonably practicable, that machinery is so designed and constructed that it will be safe.
+The effect of regulations 11 and 12(1)(e) of the 1992 Regulations is to prohibit the supply of machinery which is not in fact safe.
+So far there is no difficulty.
+But safe is not an absolute standard.
+There may be differences of view on whether the degree of safety of a particular piece of machinery is acceptable.
+Unlike the 1974 Act, the 1992 Regulations define what is meant by safe.
+At once there may be room for argument that the standards set by the Act and the Regulations are not necessarily the same.
+This in itself is not satisfactory.
+As already noted, the inhibiting effect of differently worded provisions having much the same result was one of the matters the Machinery Directive was specifically intended to eradicate: see recital 6 in the preamble.
+To my mind, that statement reads as an acknowledgment that the use of the word safe in different statutory contexts can mean different things, not, as Lord Mance suggests at para 64, that safety is always a relative concept, at any rate if so to construe it is to import the notion of reasonable foreseeability.
+Finally, Lord Mance refers at para 68 to Robb v Salamis (M&I) Ltd [2006] UKHL 56, [2007] ICR 175 in support of the proposition that reasonable foreseeability is generally accepted to be relevant to determining the standard of safety required across the health and safety legislation.
+In that case, Lord Hope confirmed the relevance of reasonable foreseeability to regulations 4 and 20 of the Provision and Use of Work Equipment Regulations 1998 (SI 1998/2306).
+However, as Lord Hope makes clear at para 3 of his judgment, the starting point for his analysis is the words of the regulations.
+Regulation 4(1) requires the work equipment to be suitable and regulation 4(4) provides that suitable in that regulation means suitable in any respect which it is reasonably foreseeable will affect the health and safety of any person.
+It thus contains an express reference to reasonable foreseeability.
+So it must be queried how far, if at all, this case supports the general argument that reasonable foreseeability is relevant in health and safety legislation in the absence of express words used in the statute.
+I agree with Lord Mance and Lord Dyson (at paras 60 61 and 111 respectively) that, given the divergent strands of authority and the differences of opinion identified in the cases, it is relevant to have regard to considerations of policy in construing section 29(1).
+Such considerations seem to me to point away from importing the concept of reasonable foreseeability into the meaning of safe.
+The critical first question in every case under section 29(1) is whether the workplace was in fact safe for the employee.
+The purpose of the section is to protect the employee not the employer.
+This is plain from the unqualified use of the word safe.
+Moreover it makes sense.
+First, the employer is in a much better position to obtain insurance against unforeseeable risks than the employee.
+Secondly, the employer, and industry more broadly, are better placed to investigate and identify risks to health and safety.
+As I see it, one of the purposes of such legislation is to provide every incentive for employers to do precisely that.
+Thirdly, in section 29, the balance between the employer and the employee is struck by the reasonable practicability defence, which itself imports considerations of reasonable foreseeability.
+Fourthly, it is no doubt for these reasons that, when commenting on the distinction between breach of statutory duty and negligence, the editors of the 14th edition of Munkman say at para 33 that it is not generally necessary to establish foresight of harm or fault on the employers part to establish breach of statutory duty.
+These are essentially the considerations that Peter Gibson J had in mind in the passage from his judgment in Larner at p 562 quoted above.
+Finally, I note that at para 61 Lord Mance expresses doubt as to whether section 29 can apply to a case of this kind if it imposes absolute liability.
+For my part I do not agree.
+Once it is accepted, as it is by Lord Mance at para 48, that a workplace can be rendered unsafe by operations constantly and regularly carried on in it, it would seem to me to follow that section 29(1) will cover any hazards created by such operations.
+The requirement is to achieve the result of safety, as opposed to safety from a particular hazard.
+It seems contrary to the clear wording of the statute to exclude from the scope of section 29 a category of hazard on the basis that the particular hazard was not in the mind of the draftsman.
+If noise can cause injury by damaging a persons hearing, then that workplace is unsafe for those who are working there.
+It does not matter that the hazard that renders a working environment unsafe was not contemplated at the time of the Act.
+In any event, as explained above, section 29 does not impose absolute liability because the employer has a defence if he can establish that he took all reasonably practical precautions, which involves a consideration of what risks are reasonably foreseeable.
+As stated above, the first question in each case is whether the workplace was safe.
+If the claimant proves that it was not, the second question arises, namely whether the employer has shown that, so far as reasonably practicable, it was safe for those working there.
+I agree with the reasoning in Larner and Mains that, in considering whether the employer has shown that, so far as reasonably practicable, it was safe it is relevant to consider whether it was reasonably foreseeable that it was unsafe.
+While (as demonstrated by Lord Dyson at para 125) the language could be construed more narrowly, I agree with Lord Sutherlands opinion expressed in the passage quoted above that, as considerations of reasonable practicability involve weighing the degree and extent of risk on the one hand against the time, trouble and expense of preventing it on the other, quite clearly foreseeability comes into the matter because it is impossible to assess the degree of risk in any other way.
+I also agree with Peter Gibson J to the same effect in the passage from Larner quoted above.
+Those conclusions are consistent with the view expressed in the 14th edition of Munkman at para 5.89: In considering what is practicable, account must be taken of the state of knowledge at the time.
+A defendant cannot be held liable for failing to use a method which, at the material time, had not been invented: Adsett v K and L Steelfounders and Engineers Ltd [1953] 2 All ER 320; nor for failing to take measures against a danger which was not known to exist: Richards v Highway Ironfounders (West Bromwich) Ltd [1955] 3 All ER 205.
+That view is consistent with the view expressed by Smith LJ in the Court of Appeal at para 83 (and quoted by Lord Kerr at para 182 above) that it is a matter of common sense [that], if the employer does not know of the risk and cannot reasonably have been expected to know of it, it cannot be reasonably practicable for him to take any steps at all.
+Section 29 the facts
+I turn to the facts.
+Although I have discussed the meaning of safe in some detail because I regard it as a point of some general importance, I have reached the conclusion that the employers were liable on the facts, whatever the true meaning of safe.
+I agree with Lord Kerrs analysis of the facts.
+I agree with him (at para 155) that the Code of Practice of 1972 was the source of warning that noise levels of less than 90 dB(A) would damage some workers hearing and that, thus alerted, an employers obligation to remain abreast of information that would allow him to know what percentage of his workforce was likely to be affected was plain.
+In these circumstances there was a clear duty to keep abreast of developments, which included giving consideration to the information that became available in 1975 and 1976.
+That information would have led to the conclusion that a significant percentage of a workforce exposed to noise at levels greater than 85dB(A) would suffer a hearing loss.
+The judge made two unchallenged findings of fact of some importance: (1) that the information would have revealed that, when exposed to noise above the level of 85dB(A), the risk of suffering hearing loss accelerates up to 90dB(A) and in the high 80s, given long enough exposure, significant hearing loss may be expected in at least a substantial minority of individuals; and (2) that the evidence did not show that the cost of implementing a policy of voluntary hearing protection at levels below 90dB(A) was such that a reasonable employer could use cost or difficulty as a valid reason for not having such a policy.
+See Lord Kerr above at paras 157 to 159.
+At paras 161 to 168 Lord Kerr considers in some detail the practice of employers of taking no steps in respect of levels below 90dB(A) in the light of the Code of Practice of 1972.
+I agree with his critique of the evidence of Mr Bramer, Mr Currie and Mr Worthington.
+I agree with his conclusion at para 165 that employers should have considered the data shortly after it became available in 1976 and, if they had, that they would have concluded that a significant minority would suffer hearing loss if exposed to noise levels exceeding 85dB(A) over a prolonged period.
+They would have discovered that this could be avoided by the provision of ear defenders at not unreasonable cost and that they would or should have provided their employees with ear defenders.
+On the construction of section 29 preferred by Lord Mance and Lord Dyson, the correct conclusion on those facts is that it was reasonably foreseeable that if nothing was done a substantial minority of employees would suffer from significant hearing loss and that the workplace was therefore unsafe, from which it follows that the employers had not procured that it was safe.
+That conclusion is inconsistent with the conclusion both that the risk of sustaining damage was minimal and that the number of those affected was minimal.
+This is not a case of de minimis non curat lex.
+Nor is it a case in which the employers can rely upon the practice in industry, for the reasons given by Lord Kerr.
+It is clear that in these circumstances the employers could not successfully rely upon the defence that they had done what was reasonably practicable: see per Lord Kerr at paras 182 to 184 above.
+On my construction of the meaning of safe, on the judges findings of fact there can be no doubt that the workplace was unsafe and the employers cannot rely upon the defence.
+They cannot show that it was not reasonably foreseeable that the workplace was unsafe and, for the reasons already given, they cannot show that they took all reasonably practicable steps to make it safe.
+For these reasons, like Lord Kerr, I would dismiss the appeal on the basis that the employers were liable for breach of the duty contained in section 29 of the 1961 Act.
+Liability at common law
+The above conclusion makes it unnecessary to express a concluded view under this head.
+I was initially attracted by the employers case that they were not in breach of duty having regard to the fact that they complied with the practice in the industry as set out in the 1972 Code.
+However, on reflection I am persuaded by the reasons in Lord Kerrs judgment.
+In doing so, I do not intend to depart from the principles stated by Swanwick J in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776, 1783 and by Mustill J in Thompson v Smith Shiprepairers (North Shields) Ltd [1984] QB 405, 422, quoted by Lord Kerr at paras 156 and 166 respectively.
+It is appropriate for an employer to have regard to any relevant industry code, but, as Swanwick J put it, employers must give positive thought to the safety of their workers in the light of what they know or ought to know.
+I agree with Lord Kerr that an application of that approach would have led employers to take action long before they did.
+In this regard (as stated earlier) I agree in particular with Lord Kerrs critique of the expert evidence at paras 162 to 166 and with his conclusions at paras 166 to 168.
+In short, the employers should have given consideration to the risks posed to those exposed to levels of noise between 85 and 90dB(A).
+If they had they would have appreciated that a significant number of their employees would be exposed to significant hearing loss, which should (and perhaps would) have led to their making ear protectors available to their workforce.
+Conclusion
+For the reasons I have given I would dismiss the appeal.
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+As a result of the experience of the pre war dictatorships, the right to free elections was emphasised during and immediately following the Second World War as an essential element of personal freedom and equality before the law.
+As Professor Hersch (later Sir Hersch) Lauterpacht put it in 1945: the right of self government which in developed society means government by persons freely chosen by and accountable to the electors is in itself an expression and a condition of freedom.
+No individual is free if he is governed against his will, that is, if the persons who exercise authority are not chosen by and accountable to the community at large. (Lauterpacht, An International Bill of the Rights of Man (1945), 135)
+Five years later Lauterpacht said: Without an effective guarantee of these political rights of freedom, personal freedom and equality before the law must be, at best, precarious; at worst they may be meaningless The insistence on an International Bill of Rights and the proclamation of the enthronement rights of man as a major purpose of the Second World War were prompted by the experience of dictatorships the essence of which was the denial of the political right of freedom.
+There is no intrinsic reason why the right to free, secret and periodic elections should not be recognised by law and declared enforceable. (Lauterpacht, International Law and Human Rights (1950), 281 2)
+Consequently the right to free elections as an essential element of the developing international law of human rights was recognised in Lauterpachts own draft International Bill of the Rights of Man (Article 10), in the American Law Institutes 1944 draft Statement of Essential Human Rights (Article 16), in the Inter American Juridical Committees 1946 draft Declaration of the International Rights and Duties of Man (Article XIII), and in the Universal Declaration of Human Rights adopted by the General Assembly in 1948 (Article 21(1)), and later in the International Covenant on Civil and Political Rights (1966) (Article 25) and the American Convention on Human Rights (1969) (Article 23).
+The Preamble to the European Convention on Human Rights states that fundamental freedoms are best ensured by (inter alia) an effective political democracy.
+In Bowman v United Kingdom (1998) 26 EHRR 1, para 42, the European Court of Human Rights said: Free elections and freedom of expression, particularly freedom of political debate, together form the bedrock of any democratic system.
+In United Communist Party of Turkey and Others vs Turkey (1998) 26 EHRR 121, para 45, it was said: Democracy is without doubt a fundamental feature of the European public order .
+The Preamble goes on to affirm that European countries have a common heritage of political traditions, ideals, freedom and the rule of law.
+The Court has observed that in that common heritage are to be found the underlying values of the Convention; it has pointed out several times that the Convention was designed to maintain and promote the ideals and values of a democratic society.
+The First Protocol to the European Convention on Human Rights was signed in Paris on March 20, 1952.
+The Protocol was ratified by the United Kingdom in November 1952, and entered into force on May 18, 1954.
+By Article 3 of the Protocol: Right to free elections The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.
+Background to the appeal
+Sark is a small island in the Channel Islands, with a population of about 600.
+appeal from the Court of Appeal (Pill, Jacob and Etherton LJJ: [2008] EWCA Civ 1319, [2009] 2 WLR 1205) principally concerns the application of Article 3 of the First Protocol to the constitutional changes introduced on Sark under the Reform (Sark) Law, 2008 (the Reform Law) in relation to the composition of the Chief Pleas, which is its legislature (and also its executive).
+Under the Reform Law the members of the electorate (consisting of some 500 voters) each vote for 28 Conseillers, and the 28 candidates with the largest number of votes are elected.
+After approval of the Reform Law by Order in Council, the first election of the 28 Conseillers took place on December 10, 2008.
+Sir David Barclay and Sir Frederick Barclay, the first and second appellants (the Barclay brothers), own property on Sark.
+The third appellant, Dr Slivnik, lives on Sark and wants to stand for election to the Chief Pleas.
+The appellants have two complaints.
+First, they claim that because of the position under the Reform Law of two office holders and prominent members of the community, the Seigneur (or Lord) of Sark and the Seneschal (or Steward), the Reform Law is incompatible with Article 3.
+Each of them is an ex officio, unelected, member of the Chief Pleas, and the Seneschal is the president of the Chief Pleas.
+Neither of them has the right to vote, but the Seigneur may speak in debate, and has the right of temporary veto of certain legislation.
+Second, the appellants claim that the Reform Law is incompatible with Article 3 (read alone or in conjunction with the prohibition on discrimination in Article 14 of the Convention) because Dr Slivnik is prevented from standing for election: as a resident he has the right to vote, but he is ineligible to stand because, as a citizen of Slovenia, he is an alien for the purposes of the Reform Law.
+Dr Slivnik also made a number of complaints about the conduct of the Seigneur and the Seneschal, but they are not relevant to the outcome of the appeal.
+The Channel Islands
+The Channel Islands consist of two Bailiwicks, Jersey and Guernsey.
+The Channel Islands are Crown dependencies but they are not part of the United Kingdom nor are they colonies.
+When King Philippe Auguste retook possession of continental Normandy in 1204, King John retained the Channel Islands.
+His right as Duke of Normandy lapsed, and a separate title grew up by force of occupation, which attached to him as King of England.
+This was confirmed by the Treaty of Bretigny in 1360.
+See Matthews (1999) 3 Jersey L Rev 177; Minquiers and Ecrehos Case (France v United Kingdom) 1953 ICJ Rep 47, 56 57.
+The Channel Islands are not represented in the United Kingdom Parliament.
+Acts of Parliament do not extend to them automatically, but only if they expressly apply to the Islands or to all HM Dominions or do so by necessary implication.
+By convention Parliament does not legislate for the Islands without their consent in matters of taxation or other matters of purely domestic concern.
+The United Kingdom Government is responsible for their international relations and for their defence.
+It is the practice for the Island authorities to be consulted before an international agreement is reached which would apply to them.
+The Crown has ultimate responsibility for the good government of the Islands.
+The Secretary of State for Justice and Lord Chancellor (the Secretary of State), the first respondent, has departmental responsibility for the constitutional relationship between the Crown and the Channel Islands.
+The second respondent, the Committee for the Affairs of Jersey and Guernsey, is a committee of the third respondent, the Privy Council.
+It is the practice for such a Committee to be appointed at the start of each sovereigns reign to deal with the affairs of the Channel Islands.
+The Committee consists of three Privy Counsellors: the Secretary of State, a Minister in the Department of Justice, and the Lord President of the Council.
+The Privy Councils main business in connection with the Islands is to deal with legislative measures submitted for ratification by Order in Council.
+The Crown acts through the Privy Council on the recommendation of the Committee.
+In 1565, acting by letters patent, Queen Elizabeth I appointed Helier de Carteret as the Seigneur of Sark (or Lord of Sark), and granted it to him as a royal fief as a reward for his having secured the island against the French.
+Inheritance of the fief and any land sublet by the Seigneur is by male primogeniture in the manner of the Crown.
+The Seigneur has always been free to sell the fief subject to royal consent.
+The present Seigneur is John Michael Beaumont.
+His family acquired the fief with Crown permission in 1852.
+He inherited it on the death of his grandmother Dame Sibyl Hathaway in 1974.
+The letters patent granted in 1565 required the Seigneur to keep the island continually inhabited or occupied by 40 men who had to be English subjects or swear allegiance to the Crown.
+To achieve and to maintain the islands defences, Helier de Carteret leased 40 parcels of land (known as tenements) at a low rent on condition that a house was built and maintained on each parcel and that the Tenant provided one man, armed with a musket, for the defence of the island.
+The 40 tenements still exist, with minor boundary changes.
+There are 36 Tenants because some Tenants own more than one tenement.
+In 1675 the office of Seneschal (or Steward) was created by the Crown.
+The main function of the Seneschal was to dispense justice, as Sarks chief judge.
+The present Seneschal is Lieutenant Colonel Reginald Guille MBE.
+Sark is part of the Bailiwick of Guernsey, but has a large measure of independence from Guernsey.
+The States of Guernsey may legislate for Sark on criminal matters without the consent of the Chief Pleas and on any other matter with their consent.
+The European Convention on Human Rights and Sark
+The European Convention on Human Rights provided in Article 63 (now Article 56, since the Eleventh Protocol) that a Contracting State could declare that the Convention should extend to all or any of the territories for whose international relations it was responsible, with the effect that the provisions of the Convention would be applied in such territories with due regard, however, to local requirements.
+The Convention was extended in this way to the Bailiwick of Guernsey in 1953, and the First Protocol, which contains a similar power to extend in Article 4, was extended to the Bailiwick of Guernsey in 1988.
+One of the questions canvassed on this appeal is whether the remedies under the Human Rights Act 1998 are available to the appellants.
+In the course of the passage of the 1998 Act the House of Lords rejected an amendment to apply the Act to the Channel Islands and the Isle of Man, and a similar amendment was withdrawn in the House of Commons: Human Rights Law and Practice, 3rd ed 2009, ed Lester et al, para 2.22.4.
+Instead the Convention was applied by local legislation.
+The Human Rights (Bailiwick of Guernsey) Law 2000 has given effect to Convention rights and came into force in November 2006.
+Legislation in Sark
+The Chief Pleas legislates by two methods, Laws and Ordinances.
+It can legislate for Sark on any matter by Projet de Loi, which requires the Royal Assent.
+After the Chief Pleas passes a Law, it is remitted as a Projet de Loi to departmental officials at the Ministry of Justice to be referred to the Committee for the Affairs of Jersey and Guernsey for its consideration and report.
+If the Committee recommends that Royal Assent be granted, the Projet de Loi is presented to the next available meeting of the Privy Council, together with a report on any petitions which have been received.
+The Projet de Loi will not go to the Privy Council if the Committee decides not to recommend it for Royal Assent.
+Her Majesty in Council then gives Royal Assent (by Order in Council) to any Projet de Loi presented by the Privy Council pursuant to a recommendation by the Committee.
+She will also dismiss any petitions as appropriate.
+The evidence in these proceedings was that, in considering whether or not to recommend approval, the Committee will in general respect the decision of the Chief Pleas, and there would tend to be a presumption in favour of recommending Royal Assent.
+But consideration is given to the Crowns responsibilities, so that if a Projet de Loi violates the Crowns international obligations or any fundamental constitutional principle, or if it is clearly not in the public interest for it to become law, then a recommendation may be made to withhold Assent.
+The Chief Pleas also legislates on a range of local affairs by Ordinance.
+The Royal Court of Guernsey may annul an Ordinance on the ground that it is unreasonable or ultra vires the Chief Pleas, but the Chief Pleas may appeal to the Privy Council against the annulment.
+The Seigneur had (and continues to have) power to veto an Ordinance, but it must be placed before the Chief Pleas again (not more than 21 days later), and the Chief Pleas will then consider whether the Ordinance should be confirmed.
+The Seigneur had (and has) no power to veto Laws.
+Between meetings, the business of the Chief Pleas is conducted through various Committees which function in effect as the executive government of Sark.
+The Reform (Sark) Law 1951 (the 1951 Law)
+Until the Reform Law became law in 2008, the majority of the members of the Chief Pleas were unelected Tenants, whose entitlement to sit derived from their status as landowners.
+Until 1922 the Seigneur and the Tenants were the only members, together with a Seneschal chosen by the Seigneur.
+The Sark Reform Law of 1922 introduced adult suffrage for the election of 12 Peoples Deputies.
+Under the 1951 Law the Chief Pleas consisted of the Seigneur, the Seneschal (who was appointed for a three year term of office by the Seigneur with the approval of the Lieutenant Governor and was ex officio President of the Chief Pleas), the Tenants, and 12 Deputies of the People elected triennially.
+In the case of a tenement jointly owned by two or more persons, one of those persons was appointed as the Tenant, by those owners or a majority of them.
+Both the Seigneur and the Seneschal had the right to vote in the Chief Pleas.
+The Seneschal was entitled, in the event of an equality of votes, to a casting vote in addition to his original vote, but following McGonnell vs United Kingdom (2000) 30 EHRR 289 (involving the compatibility of the judicial functions of the Bailiff of Guernsey with Article 6(1) of the Convention), the Seneschal agreed not to exercise his casting vote pending further reform.
+Under the 1951 Law, aliens were not eligible to vote or stand for election to the Chief Pleas.
+Reform process
+Sark has been considering constitutional reform since 1999.
+In March 2006, the Chief Pleas voted for a reform which would have provided for a legislature to consist of 16 Tenants elected by the Tenants and 16 Deputies elected by the rest of the population.
+In April 2006 the Chief Pleas withdrew its support for that option.
+On May 7, 2006, the Secretary of State (at that time Lord Falconer) wrote to the Seigneur to say that he was pleased with the decision of the Chief Pleas to withdraw the plan to reserve 16 seats in the Chief Pleas for Tenants because he would not have been able to recommend for Royal Assent legislation about which there are serious or substantial ECHR compliance issues".
+He said that [a]ny option which falls short of a wholly democratic process would cause me serious difficulties.
+I am concerned that Sark should give itself, and the UK, the best protection it can from ECHR challenge and its possible consequences [i]t is the UK which is vulnerable to an ECHR challenge.
+The UK cannot stand by and give that situation its tacit approval by doing nothing".
+In April 2007, the Chief Pleas approved another version of a new law
+would still reserve seats in the Chief Pleas for Tenants, but with those Tenants elected by universal suffrage.
+The Secretary of State (by then Mr Jack Straw) decided not to submit that proposal to the Privy Council, because there were some aspects of the proposed law which he considered not to be unquestionably compliant with international law and the United Kingdoms obligations, having regard to the Crowns responsibility for the good government of the Crown Dependencies.
+In particular, there were concerns that (a) the composition of the legislature was not consistent with modern democratic principles; (b) the dual role of the Seneschal as judge in Sarks sole court of justice and President of Chief Pleas might cast doubt on the judicial impartiality of a person subsequently called upon to determine a dispute concerning legislation with which he had been involved; and (c) the role of the Seigneur, his membership of the Chief Pleas and his wider functions, sat uneasily with democratic principles.
+On February 21, 2008, the Chief Pleas approved a new version of a Reform Law.
+Under that Law, the reserved seats for Tenants are removed.
+The Seigneur and the Seneschal remain members, but without the right to vote.
+The Seigneurs right of temporary veto of Ordinances is preserved.
+The Seneschal can now only speak for the purposes of exercising his role as President.
+Neither is now entitled to sit on Committees of the Chief Pleas.
+The Barclay brothers presented several Petitions opposing the reform proposals as they evolved, and in particular a Petition dated March 3, 2008, asking that the Privy Council withhold approval of the Reform Law as enacted.
+The Petition complained, so far as is now material, that (a) in violation of Article 3 of the First Protocol, the Seigneur would be an unelected member of Chief Pleas, with a right to address it and with a power to veto Ordinances; (b) the membership of the Seneschal as President of Chief Pleas was incompatible with Article 3; (c) the prohibition on non British nationals standing for election was incompatible with Article 3 and with Article 14 of the Convention.
+The Committee for the Affairs of Jersey and Guernsey rejected the Petitions.
+Schedule to an Order in Council dated April 9, 2008 notes that the Committee recommended that the Petitions be dismissed and that the Reform Law should receive Royal Assent at the next meeting of the Privy Council on April 9, 2008.
+The Schedule then gave a summary of the Committees conclusions, which included: The Reform Law would not violate any of the Crown's international obligations, and that therefore those international obligations provided no basis for refusing Royal Assent".
+The Reform Law
+The following are the principal features of the Reform Law which are relevant on this appeal.
+The Chief Pleas
+All legislative and executive functions which may be exercised within Sark are exercisable by the Chief Pleas, or by the relevant Committee of the Chief Pleas or other body on which the function is imposed or conferred: section 1.
+The Chief Pleas consists of the Seigneur, the Seneschal, and 28 elected Conseillers, with elections to take place every fourth year: section 21(1).
+The number of Conseillers may be varied by ordinance: section 21(5).
+A person is entitled to have his name inscribed in the register of electors if he is ordinarily resident in Sark and has been for 12 months: section 28(4).
+A person who is registered in the Cadastre (rating register) as the possessor of real property in Sark is deemed to be ordinarily resident: section 28(5).
+A person is eligible to be elected a Conseiller if he is entitled to vote and he is not an alien within the meaning of the law in force in the United Kingdom (section 28(3)(b)).
+By section 50(1) of the British Nationality Act 1981, an alien is: a person who is neither a Commonwealth citizen nor a British protected person nor a citizen of the Republic of Ireland.
+Both the Seigneur and the Seneschal are now prohibited from being members of a Committee of the Chief Pleas: section 45(3).
+Thus, neither can be directly concerned in the day to day running of Sarks Executive Government.
+The 1951 Law did not prevent the Seneschal and the Seigneur from sitting on executive Committees of Chief Pleas, and they exercised their right to do so.
+The Seigneur
+The Seigneur is a member of the Chief Pleas: section 21(1)(a).
+The Seigneur has the right to speak at any meeting of the Chief Pleas but does not have the right to vote: section 35(3).
+He cannot be a member of a Committee of the Chief Pleas: section 45(3).
+The Seigneur has the power temporarily to veto Ordinances made by the Chief Pleas.
+Section 38 provides: (1) Subject to subsections (2) and (3), the Seigneur may, during any meeting of the Chief Pleas at which an Ordinance is made, veto any Ordinance made at that meeting. (2) Where an Ordinance has been vetoed pursuant to subsection (1), it shall not be registered but shall again be laid before the Chief Pleas not earlier than 10 days, and not later than 21 days, after the meeting at which it was made. (3) Where an Ordinance is laid before the Chief Pleas pursuant to subsection (2), the Chief Pleas may either (a) confirm the Ordinance, whereupon the veto shall cease to be operative and the Ordinance shall take effect from the date of its registration, or otherwise in accordance with its provisions, as if it had not been vetoed; or refuse to confirm the Ordinance, whereupon it shall not be registered and shall not take effect". (b)
+The Seigneur has other powers and responsibilities under the Reform Law.
+The most significant for the purposes of this appeal are these: (1) the Seigneur appoints the Seneschal (with the approval of the Lieutenant Governor): section 6(1); (2) the Seigneurs consent is needed for the Seneschal to summon an extraordinary meeting of the Chief Pleas: section 32(2)(b); (3) the Seigneur is a Trustee (section 56), making him responsible, together with the other three Trustees (the Seneschal, Prvt and Greffier) for all Island Properties, i.e. schools, teachers houses, the medical centre, and administrative offices.
+The Seneschal
+The Seneschal continues to be appointed by the Seigneur with the approval of the Lieutenant Governor: section 6(1).
+He is no longer appointed for a limited 3 year term: his appointment is for life.
+The reason is that it was thought that a Seneschal with a three year term might not give a fair trial in litigation involving the Crown or the Seigneur if he were seeking re appointment.
+By section 6(2), the Seneschal may only be removed by the direction of the Lieutenant Governor for good cause (formerly, he was simply subject to removal by the direction of the Crown: section 22(1) of the 1951 Law).
+The Seneschal is an unelected member of the Chief Pleas: section 21(1)(b).
+The Seneschal continues to be the ex officio President of the Chief Pleas: section 35(1).
+He is a Trustee of Island property (section 56).
+Meetings of the Chief Pleas are convened by the Seneschal by the publication of an Agenda (section 32(1)).
+He has power (if the Seigneur consents) to summon an extraordinary meeting of the Chief Pleas, and a discretion to determine whether an extraordinary meeting will be held at the request of at least nine Conseillers (section 32(2)(b) and (c)).
+The Seneschal has no right to speak or to vote at any meeting of the Chief Pleas (section 35(4)).
+It was common ground that he may speak insofar as is necessary to enable him to preside over the Chief Pleas.
+But he cannot speak in favour of or against the substance of any matter raised by the Conseillers.
+Seneschals procedural powers
+The Chief Pleas has power to make rules of procedure (section 36(1)) but the Rules of Procedure under the 1951 Law have been applied by the Chief Pleas under the Reform Law.
+New rules were adopted in April 2009.
+The procedural powers of the Seneschal under the rules which were current when the decisions of the Committee for the Affairs of Jersey and Guernsey and the Privy Council were taken are these.
+He convenes meetings by means of an agenda: rule 1(2).
+He may, on grounds of public interest, decline to allow a question to be put or rule that the question need not be answered: rule 8.
+He is responsible for maintaining order at a meeting and, subject to the provisions of the Rules, regulates the conduct of business: rule 10(1).
+He may direct a member to discontinue his speech if he considers it irrelevant or tedious repetition of the member's arguments: rule 10(4).
+Where he considers that grave disorder has arisen in a meeting he may adjourn the meeting: rule 10(7).
+He decides whether to allow an amendment to be moved in the case of non compliance with the requisite notice period (rule 11(2)).
+He decides whether or not a member's oral contribution to the debate is relevant and therefore permissible (rule 11(6)), and he decides the order of proposed amendments (rule 11(8)).
+He provides clarification on the Rules: rule 13.
+The proceedings: jurisdiction
+By claim form dated April 4, 2008, the appellants sought judicial review of (1) the decision dated March 19, 2008 of the Committee for the Affairs of Jersey and Guernsey to recommend that Royal Assent be granted to the Reform Law; and (2) the decision of the Privy Council to advise Her Majesty, on April 9, 2008, to grant Royal Assent in accordance with the first decision, which resulted in an Order in Council of that date.
+There is no issue on this appeal about jurisdiction to determine the legality of the decisions of the Committee and the Privy Council.
+Wyn Williams J held in the Administrative Court [2008] 3 WLR 867, paras 98 102, and the respondents accepted in the Court of Appeal [2009] 2 WLR 1205 (see Pill LJ at paras 19 21) that to the extent that the Reform Law is in breach of Convention rights, then the appellants are entitled to appropriate relief in these proceedings.
+That is because the respondents expressly advised Her Majesty the Queen to approve the Reform Law on the ground that it did not involve any breach of the obligations of the United Kingdom under the Convention.
+It will, however, be necessary to revert to the question of jurisdiction because of the appellants contention that the courts of this country also have jurisdiction to grant relief on the basis that the respondents were acting as public authorities for the purposes of section 6 of the Human Rights Act 1998 when recommending the Order in Council by which the Reform Law was given Royal Assent.
+The judgments below
+Wyn Williams J decided that the comparatively limited rights and powers conferred upon the Seigneur and the Seneschal did not impair the essence of the rights conferred under Article 3 of the First Protocol.
+Neither was entitled to vote.
+The Seigneurs right of veto was limited to Ordinances and was no more than a means by which he could ask Chief Pleas to revisit a decision.
+It was impossible to envisage that the power could ever be used in such a way that it would frustrate the will of the Conseillers permanently.
+There was no principle that a State could not comply with Article 3 unless every member of its legislative body were democratically elected.
+The positions of Seigneur and Seneschal had been inextricably linked with the governance of Sark over centuries, and there was no legal impediment to there being some continuation of those links.
+Their membership was being pursued for a legitimate aim, namely to form part of a package of measures which was most likely or at least very likely to find favour with a majority of the members of Chief Pleas as currently constituted, and to provide some link between the past and the future.
+The Reform Law was not in breach of Article 3 in not permitting aliens to stand for election.
+Wyn Williams J also decided that the combination of the judicial and other functions of the Seneschal was consistent with the duty under Article 6(1) of the Convention to establish an independent and impartial tribunal.
+His decision on that point was reversed by the Court of Appeal, and there was no further appeal on that point.
+The Court of Appeal agreed with Wyn Williams J so far as the position of the Seigneur was concerned, and by a majority (Etherton LJ dissenting) with regard to the Seneschal.
+The principal points made by Pill and Jacob LJJ were these: all members of the Chief Pleas entitled to vote were elected in accordance with a procedure about which there was no complaint.
+The power of the Seigneur to speak (but not vote) in Chief Pleas made sense in a small community such as Sark, and would not undermine the free expression of the people.
+The power of the Seigneur to veto Ordinances temporarily, and the requirement for the Seneschals consent to an extraordinary meeting of Chief Pleas requested in writing by nine Conseillers, might serve the democratic will in providing the opportunity at a later date for a more representative meeting, if some members of Chief Pleas were away from Sark.
+There was no reason to believe that the Seneschal would use his position as ex officio President to thwart the will of elected members.
+If his procedural powers were not acceptable to the elected members, Chief Pleas could alter the rules.
+Jacob LJ added that if the elected members of Chief Pleas were to decide that the continued presence and powers of the Seigneur and Seneschal in Chief Pleas were obstructive to the expression or exercise of the will of the people, there would be nothing that could be done legally to prevent Chief Pleas from voting for a change.
+The Reform Law did not breach Article 3 in failing to grant to aliens the right to stand for election to Chief Pleas and, in the absence of such a breach, Article 14 of the Convention did not apply.
+Etherton LJ dissented with respect to the role and functions of the Seneschal.
+His view was that an unelected President for life of a unicameral legislature, who was not appointed to office by the electorate or by the elected members of the legislature, and whom the elected members had no power to discipline or remove as President, was in principle fundamentally inconsistent with a political democracy.
+His procedural powers and the requirement of his consent for extraordinary meetings taken as a whole were capable of enabling suppression of free and appropriate debate within the Chief Pleas by elected members on topics they or some of them wished to raise.
+There was no clearly practicable means for the elected members of the Chief Pleas to control abusive or otherwise incorrect exercise by the Seneschal of his powers as President.
+They had no power to dismiss or suspend him.
+They could apply in writing to the Lieutenant Governor under section 6(2) of the Reform Law for his removal as Seneschal, but that process would be neither swift nor certain.
+The particular features of the Sark constitution under the Reform Law and the social and constitutional standing of the Seneschal in Sark were obvious disincentives for elected members to challenge the rulings and conduct of the Seneschal as President.
+In addition to serving as President of the Chief Pleas he held the following positions under the Reform Law: one of the four trustees who, subject to any direction of the Chief Pleas, manage, control and dispose of its property and who sign contracts on its behalf; the returning officer for the purposes of elections of Conseillers to the Chief Pleas and, as such, is required to do everything necessary for effectually conducting the election; critically, under the Reform Law the only court on Sark was the Court of the Seneschal in which, unless a Deputy Seneschal or a Lieutenant Seneschal is appointed to sit, the Seneschal sat alone.
+The elected members would doubtless bear in mind the possibility that at some point in the future they might have to appear in court before him or one of his deputies or lieutenants in civil or criminal proceedings.
+The issues on appeal
+The principal issues on this appeal are (1) whether (as the appellants contend) the position of the Seneschal and the Seigneur in the Chief Pleas of Sark, as provided for in the Reform Law, constitutes a breach of the right conferred by Article 3 of the First Protocol to participate in elections which ensure the free expression of the opinion of the people in the choice of the legislature; and (2) whether (as the appellants contend) the prohibition imposed by the Reform Law on persons who are aliens from standing for election to the Chief Pleas of Sark is a breach of the right under Article 3 of the First Protocol, read alone and/or in conjunction with Article 14 of the Convention.
+Although there is no cross appeal by the respondents on the issue of jurisdiction, the appellants invited the House of Lords to determine whether, had it not been accepted by the respondents that the decisions of the Committee for the Affairs of Jersey and Guernsey and the Privy Council were amenable to judicial review (because the respondents expressly advised Her Majesty to approve the Reform Law on the ground that it did not involve any breach of the international obligations of the United Kingdom under the Convention), the Human Rights Act 1998 applies to the decisions.
+Article 3 of the First Protocol
+There have been more than 50 decisions of the European Court of Human Rights on Article 3 of the First Protocol.
+The following principles emerge from these decisions, particularly from the relatively early case of Mathieu Mohin v Belgium (1988) 10 EHRR 1, and the recent decision of the Grand Chamber in Yumak v Turkey (2009) 48 EHRR 61.
+First, Article 3 of the First Protocol enshrines a characteristic principle of an effective democracy.
+It is of prime importance in the Convention system, of which democracy constitutes a fundamental element, and the rights guaranteed under Article 3 of the First Protocol are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law: Mathieu Mohin v Belgium, at para 47; Yumak v Turkey, at paras 105 and 107.
+See also Zdanoka v Latvia (2007) 45 EHRR 478, para 98 (Grand Chamber); Tanase v Moldova [2008] ECHR 1468, at paras 100 101.
+Second, although Article 3 is phrased in terms of the obligation of the Contracting States to hold elections which ensure the free expression of the opinion of the people rather than in terms of individual rights, Article 3 guarantees individual rights, including the right to vote and the right to stand for election: Mathieu Mohin v Belgium, at paras 48 51; Yumak v Turkey, at para 109(i); Zdanoka v Latvia, at para 102.
+Third, there is room for implied limitations on the rights enshrined in Article 3, and Contracting States must be given a wide margin of appreciation in this sphere: Mathieu Mohin v Belgium, at para 52; Yumak v Turkey, at para 109(ii).
+Fourth, the content of the obligation under Article 3 varies in accordance with the historical and political factors specific to each State; and for the purposes of applying Article 3, any electoral legislation must be assessed in the light of the political evolution of the country concerned, so that features which would be unacceptable in the context of one system may be justified in the context of another, at least so long as the chosen system provides for conditions which will ensure the free expression of the opinion of the people in the choice of the legislature: Yumak v Turkey at para 109(iii); Aziz v Cyprus (2005) 41 EHRR 164, para 28.
+Fifth, Article 3 is not (by contrast with some other Convention rights, such as those enumerated in Articles 8 to 11) subject to a specific list of legitimate limitations, and the Contracting States are therefore free to rely in general in justifying a limitation on aims which are proved to be compatible with the principle of the rule of law and the general objectives of the Convention: Yumak v Turkey, at para 109(iii); Tanase v Moldova, at para 105.
+Sixth, limitations on the exercise of the right to vote or stand for election must be imposed in pursuit of a legitimate aim, must not be arbitrary or disproportionate, and must not interfere with the free expression of the opinion of the people in the choice of the legislature: Yumak v Turkey, at para 109(iii) (iv).
+Seventh, such limitations must not curtail the rights under Article 3 to such an extent as to impair their very essence, and deprive them of their effectiveness.
+They must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage.
+Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature and the laws which it promulgates: Mathieu Mohin v Belgium, at para 52; Yumak v Turkey, at para 109(iv).
+Eighth, as regards the right to stand for election, the Court accepts that stricter requirements may be imposed on the eligibility to stand for election to parliament, as distinguished from voting eligibility: Melnychenko v Ukraine (2006) 42 EHRR 784, para 57.
+In Zdanoka vs Latvia (2007) 45 EHRR 478, para 106 the Grand Chamber said: The Convention institutions have had fewer occasions to deal with an alleged violation of an individuals right to stand as a candidate for election, i.e, the so called passive aspect of the rights under Article 3 of Protocol no. 1.
+In this regard the Court has emphasised that the Contracting States enjoy considerable latitude in establishing constitutional rules on the status of members of parliament, including criteria governing eligibility to stand for election.
+Although they have a common origin in the need to ensure both the independence of elected representatives and the freedom of choice of electors, these criteria vary in accordance with the historical and political factors specific to each State.
+The multiplicity of situations provided for in the constitutions and electoral legislation of numerous member States of the Council of Europe shows the diversity of possible approaches in this area.
+Therefore, for the purposes of applying Article 3, any electoral legislation must be assessed in the light of the political evolution of the country concerned.
+Ninth, the Court takes account of the practice of members of the Council of Europe in assessing the compatibility of electoral rules with Article 3, in particular in the area of qualifications to stand for election.
+In Yumak v Turkey (at para 111) the Court said in relation to electoral systems that the large variety of situations provided for in the electoral legislation of numerous Member States of the Council of Europe shows the diversity of the possible options.
+In Melnychenko v Ukraine, at para 30, the Court, when considering whether it was compatible with Article 3 to impose a residence requirement before citizens could stand for election, referred to the fact that 19 States did not impose any such requirement for participation in elections while 21 States did so for elections to one or more of the legislative chambers.
+In Gitonas v Greece (1997) 26 EHRR 691 the Court decided that the disqualification in Greece of civil servants from elected office was compatible with Article 3, and at para 40 it said that equivalent provisions exist in several member States of the Council of Europe.
+In Sukhovetsky v Ukraine (2007) 44 EHRR 57, at para 76, the Court, in deciding that the Ukrainian rules with regard to electoral deposits were compatible with Article 3, considered the practice of the Convention States with regard to the amount of the deposit and whether it was appropriate that it should be forfeit if the candidate failed to win election irrespective of the percentage of votes cast.
+Examples of the operation of these principles as regards the right to vote include Yumak v Turkey, which concerned a Turkish law under which a political party had to receive at least 10% of the national vote in an election in order to obtain any seats in the Turkish parliament, and which was the highest threshold in the Contracting States.
+The effect was that two of the eighteen parties which had taken part in the 2002 elections had passed the 10% threshold and secured seats, with the result that 45% of the voting public were not represented in the parliament.
+It was held that the threshold law served the legitimate aim of avoiding excessive and destabilising parliamentary fragmentation and thus strengthening governmental stability.
+Although it appeared excessive, it was not disproportionate in that it did not impair the essence of the rights secured by Article 3 of the First Protocol.
+But a blanket disenfranchisement of convicted prisoners regardless of the nature of the offence or length of sentence was held to be disproportionate: Hirst v United Kingdom (No 2) (2006) 42 EHRR 41 (Grand Chamber).
+As regards the right to stand for election, it has been held that public servants could be barred from standing for election: Ahmed v United Kingdom (2000) 29 EHRR 1; Gitonas v Greece, supra; and a former member of the Communist Party could be banned from standing for election in Latvia because she could be presumed to be anti democratic: Zdanoka v Latvia (2007) 45 EHRR 478.
+But the requirement of a command of Latvian at the highest level from a Russian minority candidate for election was disproportionate: Podkolzina v Latvia [2002] ECHR 405.
+The effect of these principles is that there is no narrow focus on one particular element of democracy.
+The electoral rules have to be looked at in the round, and in the light of historical and political factors.
+The proper application of these principles leads inevitably to the conclusion that the Reform Law is not in breach of Article 3 of the First Protocol.
+The appellants submit that it is incompatible with the most basic principles of democracy as expressed in Article 3 of the First Protocol for unelected individuals to be members of the Chief Pleas with the power (1) in the case of the Seigneur, to speak in the Chief Pleas and to veto (even on a temporary basis) legislation and (2) in the case of the Seneschal, to preside and control proceedings in the Chief Pleas, in each case in addition to their other important functions and powers on Sark (Appellants Case, at para 58).
+The appellants exaggerate their case.
+The starting point is that only Conseillers are entitled to vote in the Chief Pleas, and therefore it is only Conseillers who determine whether legislation is to be enacted.
+The electorate of Sark consists of fewer than 500 voters, who choose 28 elected Conseillers by a process of casting 28 votes each and electing the 28 candidates with the largest number of votes.
+There is therefore one Conseiller for every 17 18 persons in the electorate.
+It is not easy to envisage, in the words of Article 3, conditions which are more likely to ensure the expression of the opinion of the people in the choice of the legislature.
+The appellants case was, in part, that to the extent that members of the legislature (implicitly including both chambers) were not elected, Article 3 was not satisfied: Appellants Case at para 63(2).
+That was put too widely.
+It is plain that the effect of Article 3 is not to require that all members of the legislature of a Contracting State be elected.
+A legislature may consist of two chambers, and a wholly unelected second chamber, such as the House of Lords, is not in itself incompatible with Article 3.
+When the First Protocol was under negotiation, the formula The High Contracting Parties undertake to hold free elections of the Legislature was proposed, but it was not acceptable to some countries, because it might be interpreted as an obligation to hold elections for both chambers of the legislature.
+This was unacceptable to the Governments of some States where the upper chamber was in whole or in part not elected but hereditary (such as the United Kingdom) or appointed (as in Belgium).
+The Committee of Ministers recorded that the original text, which was maintained, had been carefully drafted to avoid this difficulty: Collected Edition of the Travaux Prparatoires of the European Convention on Human Rights, Vol VIII (1985), pp 48 52, letter dated November 28, 1951, from Chairman of the Committee of Ministers to the President of the Consultative Assembly.
+It was for that reason and by reference to those documents that the Court in Mathieu Mohin v Belgium said, at para 53, that Article 3 applies only to the election of the legislature, or at least of one of its chambers if it has two or more.
+The European Commission for Democracy through Law (also known as the Venice Commission) was established in 1990 as the Council of Europes advisory body on constitutional matters.
+The Venice Commission adopted guidelines on elections as part of a code of good practice in electoral matters.
+Guideline 5 was that at least one chamber of the national parliament must be elected by direct suffrage.
+Consequently the appellants also formulated the principle for which they contended as being that all the members of a unicameral legislature must be elected: Appellants Case at para 63(3).
+No doubt where, as here, there is a unicameral legislature, best practice is that it should be an elected assembly.
+Jacob LJ observed correctly in the Court of Appeal that [i]f one were starting from scratch, there can be few who would think the new Reform Law of Sark satisfactory [T]o confer by heredity upon an unelected man the positions and powers of the Seigneur would be going too far by the standards of modern democratic governance: para 117.
+It does not follow, however, that as a matter of Convention law there is an invariable rule that all members must be elected irrespective of their powers and irrespective of the circumstances.
+The effect of the jurisprudence under Article 3 is that all the circumstances must be considered.
+It is not a necessary consequence, therefore, that the mere existence of some unelected members contravenes Article 3.
+In 2007 the Barclay brothers themselves made a representation supporting an option for constitutional change which would have continued the reservation of half of the seats for 16 Tenants elected by the Tenants.
+Membership of two unelected individuals in the circumstances of this case does not contravene Article 3.
+The purpose of Article 3 is to ensure that legislation is enacted through genuinely democratic processes.
+An electorate of about 500 elects 28 voting representatives.
+Neither the Seigneur nor the Seneschal can vote.
+It is true that the Seigneur can speak on matters of substance in debate.
+But the fact that unelected persons may influence the outcome of debate is not undemocratic, especially when the influence is open and transparent.
+Even if Article 3 did in principle require that even non voting members be elected, then a limitation on that principle by having two prominent non voting members would be well within the margin of appreciation in the light of the constitutional history and the political factors relevant to Sark.
+The position of the Seigneur dates from 1565, and the position of the Seneschal from 1675.
+Until 1922 the composition of the Chief Pleas reflected the feudal system in Sark.
+Between 1922 and 2008, the feudal Tenants dominated the Chief Pleas.
+Even the introduction in 1922 of a minority of elected Deputies was not easily achieved.
+At the time this was a very controversial change.
+The Lieutenant Governor told the Chief Pleas members that, unless they agreed to changes approved by the Privy Council, the Islands administration would be taken over forcibly: Sark Constitutional Review Committee, Report on the Future Constitution of the Island of Sark, January 2002, para 62.
+The Reform Law eventually introduced universal suffrage for the election of all those members who could vote on legislation.
+The fact that the Reform Law was enacted by, and therefore with the consent of, the legislature was relied on by the respondents.
+But that would not save it from incompatibility with the Convention.
+Some profoundly undemocratic laws have been enacted by democratically elected legislatures.
+In any event, the Reform Law was enacted by the unreformed Chief Pleas which was certainly not fully democratic.
+But the respondents are right in their contention that the Chief Pleas support for the Reform Law is a political factor of weight, because it offers confidence that the Reform Law will command the level of respect and legitimacy in the eyes of the people of Sark that is necessary to secure significant constitutional change.
+Thus even if the membership of the Seigneur and the Seneschal is to be regarded as a limitation on the peoples right to choose the legislature, then the limitation falls well within the margin of appreciation allowed by Article 3.
+It fulfils all the conditions suggested by the jurisprudence of the Strasbourg Court.
+It cannot be said to be arbitrary.
+Because the Seigneur and the Seneschal cannot vote, it cannot be said to be lacking in proportionality.
+The free expression of the opinion of the people of Sark is not impeded by it.
+Nor could it be plausibly suggested that their membership impairs the very essence of the peoples right to choose the legislature, or deprives the right of its effectiveness.
+Nor can it be argued seriously that the Seigneurs right to speak in the Chief Pleas will frustrate the free expression of the opinion of the people in the choice of the legislature.
+Nor is the conclusion affected by the other powers and responsibilities of the Seigneur and the Seneschal.
+The Seigneur has the power temporarily to veto Ordinances (but not Laws) under section 38 of the Reform Law.
+The effect of section 38 is that where an Ordinance has been vetoed then it is laid before the Chief Pleas again not earlier than 10 days later, but no later than 21 days later, whereupon the Chief Pleas will either confirm, or refuse to confirm, the Ordinance.
+The appellants argue that the existence of this power will inevitably deter the Chief Pleas from adopting a position opposed by the Seigneur, whether because the Chief Pleas wishes to avoid a veto or simply because it prefers to seek the approval, or avoid the disapproval, of the Seigneur.
+It is true that HM Procureur, the head of the Government legal service in Guernsey, in a letter of April 30, 2004 to the Chairman of the Sark Constitutional Steering Committee, wrote: I regret that I remain opposed to the retention by the Seigneur of any power of veto.
+In my opinion it is simply unacceptable in the 21st century for an unelected and unappointed citizen, whatever his civic role, or whatever his rank or position in Sark society, to be able to veto legislation passed by the (soon to be more democratically constituted) Chief Pleas, irrespective of whether that veto is absolute or limited.
+The Seigneur has informed me that he has no strong feelings on the Seigneurial veto.
+He writes: If it is a possibility that it might cause problems in the
+future then I am quite happy that it should be abolished
+The present Seigneurs evidence was that he had never used his power of temporary veto, and that he had no recollection of his predecessor (his grandmother, Dame Sybil Hathaway) having used it.
+His evidence was that he would only consider using it in, at most, two circumstances: (a) if an Ordinance had not been drafted by the Guernsey Law Officers and he considered that it might be ultra vires; or (b) in what he describes as the unlikely event that an ordinance were passed by a close vote at a meeting of the Chief Pleas at which only a minimal number of members were present and he were to feel that, with a normal turnout, the Ordinance might possibly have been rejected.
+The suggestion by the appellants that the power might have a chilling effect on the exercise of the power of the democratically elected members to legislate is wholly speculative.
+It is legitimate to take account of the fact that the power has not been used in modern times, and that the Seigneur has indicated that it will be used in only very limited circumstances.
+The use of the power if few members are present and voting will tend to ensure that the democratic will is respected by ensuring that sufficient numbers of members are present.
+That objective could have been achieved by different means (such as a special quorum for the passage of legislation), but the method proposed is proportionate and consistent with Article 3.
+The unelected House of Lords has power (subject to the Parliament Acts 1911 and 1949) to delay United Kingdom legislation, and that is a power which directly affects the process of the elected chamber.
+The appellants do not suggest that that power is inconsistent with Article 3.
+The reason why the power is compatible with Article 3 is that it has its origin in historical and political factors, it is not arbitrary or disproportionate, and it does not affect the essence of democratic rights.
+Indeed in R (Jackson) v Attorney General [2005] UKHL 56, [2006] 1 AC 262, para 32, Lord Bingham of Cornhill suggested that the use of the Parliament Acts to secure extension of the maximum duration of Parliament by overriding the need for the passage of legislation through the House of Lords might itself be contrary to Article 3.
+So also in theory Her Majesty could refuse Royal Assent, although by convention it cannot be refused except on the advice of ministers, and the power to refuse it has not been exercised since 1708: see Bradley and Ewing, Constitutional and Administrative Law, 14th ed 2007, p 21.
+The appellants argue that the delaying power of the House of Lords is not incompatible with Article 3 because the requirements of Article 3 are satisfied if there is one wholly elected legislative chamber.
+This is unpersuasive.
+It does not follow from the fact that Article 3 does not regulate the composition of a second chamber that there are no limitations imposed by Article 3 on the powers of the second chamber.
+If a second chamber had a power permanently to frustrate the will of the democratically elected chamber, and the power was not purely theoretical, like Her Majestys power to withhold Royal Assent, then there would at the least be a case for breach of Article 3.
+Nor are the appellants assisted by the existence of the Seigneurs other powers.
+Apart from the power of temporary veto of Ordinances already discussed, the only one which affects proceedings of the Chief Pleas is that the Seigneurs consent is needed for the Seneschal to summon an extraordinary meeting of the Chief Pleas: Reform Law, section 32(2)(b).
+The Chief Pleas has to meet four times annually: section 32(2).
+All three methods of summoning extraordinary meetings require the action of an unelected official: (1) at the direction of the Lieutenant Governor; (2) by the Seneschal with the consent of the Seigneur; and (3) with the consent of the Seneschal on the written request of at least nine Conseillers.
+The mere existence of this power does not undermine effective political democracy.
+If there were any serious prospect of its being abused, the Chief Pleas could amend the Reform Law.
+The Seigneurs other powers do not affect the democratic process.
+They simply underline his status on Sark.
+He appoints the Seneschal (with the approval of the Lieutenant Governor) and the Deputy Seneschal (in consultation with the Seneschal and with the approval of the Lieutenant Governor), and he appoints the Deputy Seigneur.
+He appoints the Prvt and the Greffier subject to the approval of the Lieutenant Governor.
+His consent is required for Guernsey police officers to attend in Sark, and his consent is required for removal of a special constable.
+The Seigneur is a Trustee, making him responsible, together with the other three Trustees (the Seneschal, Prvt and Greffier) for all Island Properties.
+It is not suggested that the existence of these powers is contrary to Article 3.
+So far as the position of the Seneschal is concerned, it is true that it is anomalous that the presiding officer of an elected assembly should be an unelected official appointed by another unelected (and indeed hereditary) official.
+Etherton LJ was right to say that it is relevant that the members of Chief Pleas have no power to dismiss or suspend the Seneschal, and that the process of applying in writing to the Lieutenant Governor under section 6(2) of the Reform Law for his removal as Seneschal would not be swift or certain.
+But it does not follow that legislation which provides for an unelected presiding officer is contrary to the duty to allow free elections for the choice of the legislature under Article 3 of the First Protocol.
+In any event, for essentially the same reasons as apply in the case of the Seigneur, the position of the Seneschal is well within the margin of appreciation, taking into account historical and political factors, and cannot realistically be said to impair the essence of the rights under Article 3 nor to deprive them of effectiveness.
+It is not suggested that the procedural powers themselves are contrary to Article 3.
+What is said is that the width of the procedural powers makes it inappropriate that they should be exercised by an unelected person.
+But they are powers which any presiding officer would be given or would need.
+It is true that they are capable of being misused, but they could equally be misused by an elected officer.
+If there were any abuse of the powers, the Chief Pleas could alter the procedural rules under section 36(1) of the Reform Law without the need for any consent.
+There is nothing in the appellants reliance on the other powers of the Seneschal.
+He is ex officio the returning officer for elections held under the Reform Law.
+He is a Trustee of Island property.
+In both capacities he must act according to law, and in the latter capacity on behalf and subject to the direction of the Chief Pleas: section 57.
+The right to stand for election
+The appellants do not suggest that Article 3 of the First Protocol itself gives resident aliens a right to stand for election.
+The primary way it is put in relation to Article 3 is that the prohibition on aliens from standing for election to the Chief Pleas advances no legitimate aim and is disproportionate, and therefore contrary to Article 3 of the First Protocol, given that (1) resident aliens may vote for elections to the Chief Pleas; and (2) the Law does not identify as eligible to stand those with sufficiently continuous or close links to, or a stake in Sark.
+Commonwealth citizens, British protected persons and citizens of the Republic of Ireland may stand for election to the Chief Pleas, so long as they are resident in Sark or own property there, even if they do not live there.
+The appellants alternative case is that if citizens have the right to vote, then the prohibition on aliens (or, perhaps, resident aliens) standing for election to the Chief Pleas is unjustifiable discrimination on grounds of nationality contrary to Article 3 of the First Protocol read with Article 14 of the Convention.
+The principal answer to the appellants case is that there are many decisions of the Strasbourg Court which proceed on the basis that the rights under Article 3 belong to citizens, and therefore not to aliens.
+In a passage in Mathieu Mohin at (1988) 10 EHRRI, para 54 repeated or referred to in many subsequent judgments, the Court referred to the principle of equality of treatment of all citizens in the exercise of their right to vote and their right to stand for election.
+For example, in Kovach v Ukraine [2008] ECHR 125, para 49, the Court said in the same context: In this field, Contracting States enjoy a wide margin of appreciation, provided that they ensure the equality of treatment for all citizens.
+In Makuc v Slovenia [2007] ECHR 523, para 206, the Court said The Court recalls that this provision guarantees individual rights, including the right to vote and to stand for election.
+However, these rights are not absolute but rather subject to limitations, such as citizenship citing Hirst v United Kingdom (No 2) (2006) 42 EHRR 41.
+The Guidelines on Elections of the Venice Commission (referred to above, para 68) said, in the context of conditions for voting and standing for election, that a nationality requirement may apply, but that it would be advisable for foreigners to be allowed to vote in local elections after a certain period of residence: Guideline 1.1.b.
+The Explanatory Report said (para 6.b c) that most countries legislation laid down a nationality requirement, but that the right to vote and/or the right to stand for election might be subject to residence requirements.
+The International Covenant on Civil and Political Rights (1966) is consistent with this interpretation of the European Convention.
+Article 25 grants every citizen, without any of the distinctions in Article 2 (race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status) and without unreasonable restrictions the right and the opportunity to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage .
+In Melnychenko v Ukraine (2006) 42 EHRR 784 the Court considered whether a residence requirement could be imposed before a refugee from the Ukraine living in the United States could stand for election to the Parliament.
+As mentioned above (para 61), the Court looked at the practice of some 40 Council of Europe States, all of which had a nationality requirement together with (in about half of the States) a residence requirement for participation in elections by expatriate citizens as regards at least one chamber.
+It treated the International Covenant as expressing the relevant international law on the subject.
+The Court accepted that a residence requirement was compatible with Article 3, but concluded that the electoral commissions decision that the applicant was not resident was unlawful.
+On the hearing of this appeal the parties did not provide any comparative material on the practice of the Contracting States, but the website of the Inter Parliamentary Union has a table of the conditions for voting and for standing for election, which confirms what was said in Melnychenko v Ukraine.
+There does not appear to be a single member of the Council of Europe which does not impose a citizenship requirement (in some cases coupled with a residence requirement).
+Py v France (2005) 42 EHRR 548 does not justify the appellants argument that the Court has implicitly recognised that a person who was not a citizen was within the scope of Article 3 of the First Protocol.
+New Caledonia was a French overseas territory, and as part of its move towards self determination the French Constitution was amended to provide for a referendum on self determination in the territory.
+A French law provided that persons resident in New Caledonia since 1988 would have the right to vote in the referendum.
+There was an identical qualification for obtaining citizenship.
+A French national was appointed to a university post in New Caledonia in 1995, and claimed the right to vote in the referendum although he had not been resident there since 1988.
+It was held that the residence requirement pursued a legitimate aim and that although a ten year requirement might have seemed disproportionate, local requirements (Article 63, now Article 56) justified the restrictions.
+There was therefore no breach of Article 3 of the First Protocol (or of Article 14 of the Convention).
+This is not a decision that non citizens have a right to vote or stand for election.
+It was simply a decision that the length of residence required by the French law as a qualification for voting in the referendum was justified by local requirements.
+In view of New Caledonias transitional status the right to vote was given to the population defined by reference to 10 years residence, which was identical to the citizenship requirement.
+The Court specifically referred (at [46]) to the need to ensure citizen participation and knowledge in framing rules on voting eligibility.
+Consequently both in international law, as reflected in the International Covenant and in the practice of States, and under the European Convention, as reflected in the decisions of the Strasbourg Court and in the practice of the members of the Council of Europe, it is citizens, and not non resident aliens, who have the right to vote and stand for election.
+There may be some exceptional cases, for example where citizenship is withheld on, for example, linguistic grounds from communities who have been settled on the territory of a State for several generations: see Venice Commission Explanatory Report, para 1.16b.
+But the general rule is clear.
+Sark is not an entity in international law and has no separate citizenship.
+It is entitled to restrict the right to stand for election to persons who are entitled to vote (which requires 12 months residence or registration in the rating register as the possessor of land) and who are not aliens within the meaning of United Kingdom law, where an alien is a person who is neither a Commonwealth citizen nor a British protected person nor a citizen of the Republic of Ireland: British Nationality Act 1981, section 50(1).
+Article 3 does not require a justification for qualifications which are stricter for standing for election than for voting.
+As already indicated, it is well established that stricter requirements may be imposed on the eligibility to stand for election to parliament, as distinguished from voting eligibility: Melnychenko v Ukraine (2006) 42 EHRR 39, para 57; Zdanoka vs Latvia (2007) 45 EHRR 478, para 106 (Grand Chamber).
+Historical and political factors have determined the definition of alien in United Kingdom law.
+The concept of Commonwealth citizenship is of course very wide, but eligibility is limited to those with a genuine connection with Sark in the form of residence or ownership of property.
+It is clear that in the light of those factors and the breadth of the margin of appreciation, the exclusion of aliens from eligibility to stand for election is justifiable.
+Articles 14 and 16 of the Convention
+Nor does Article 14 assist the appellants.
+Article 14 provides that the enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground The crucial element under Article 14 is that the discrimination must be in the enjoyment of the rights under the Convention.
+The applicant must have a Convention right before he can complain of discrimination: Moustaquim vs Belgium (1991) 13 EHRR 802, and contrast Gaygusuz vs Austria (1996) 23 EHRR 364.
+As the Court said in, for example, Aziz v Cyprus (2005) 41 EHRR 164, paras 35 36: The Court further observes that Article 14 has no independent existence, but plays an important role by complementing the other provisions of the Convention and the Protocols, since it protects individuals, placed in similar situations, from any discrimination in the enjoyment of the rights set forth in those other provisions.
+Where a substantive Article of the Convention has been invoked, both on its own and together with Article 14, and a separate breach has been found of the substantive Article, it is not generally necessary for the Court to consider the case under Article 14 also, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case.
+Consequently, where there is a breach of Article 3, it has not normally been necessary to deal with Article 14: e.g. Matthews v United Kingdom (1999) 28 EHRR 361, para 68; Hirst v United Kingdom (No 2) (2006) 42 EHRR 41, para 87; Tanase v Moldova [2008] ECHR 1468, para 116.
+Podkolzina v Latvia [2002] ECHR 405, para 42; Sadak v Turkey (No 2) (2003) 36 EHRR 23, para 47; Melnychenko v Ukraine (2006) 42 EHRR 784, para 71.
+So also where the claim under Article 3 is dismissed and the complaint under Article 14 is essentially the same, it will not be necessary to consider Article 14: Mathieu Mohin (1988) 10 EHRRI, para 59; Sukhovetskyy v Ukraine (2007) 44 EHRR 57, para 76.
+Aziz v Cyprus (2005) 41 EHRR 164 is an example of a case where there was a separate breach of Article 14, because the applicant was excluded from the electoral register because he was a member of the Turkish Cypriot community.
+The complaint under Article 14 was not a mere restatement of the applicants complaint under Article 3 of the First Protocol.
+The applicant was a Cypriot national, resident in the Government controlled area of Cyprus.
+The difference in treatment in that case resulted from the very fact that the applicant was a Turkish Cypriot.
+The present case is not a case of discrimination in this sense.
+There was some discussion in argument of the relevance of Article 16 of the Convention to the present appeal.
+It provides that nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.
+Article 16 is of very limited scope.
+It applies only to Articles 10, 11 and 14, and has been held not to apply to non nationals who are citizens of EU countries: Piermont v France (1995) 20 EHRR 301.
+Because aliens do not have a right under Article 3 of the First Protocol to stand for election, there is no scope for the operation of Article 16.
+The applicability of the Human Rights Act 1998
+The respondents accept that to the extent that the Reform Law breaches Convention rights, then the appellants are entitled to relief in these proceedings.
+That is because the respondents expressly advised Her Majesty to approve the Reform Law on the ground that it did not involve any breach of the obligations of the United Kingdom under the Convention: R v Secretary of State for the Home Department, Ex p Launder [1997] 1 WLR 839, 867, per Lord Hope of Craighead.
+Consequently the decision of the Committee for the Affairs of Jersey and Guernsey and the Order in Council are subject to judicial review: R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (no. 2) [2009] 1 AC 453, para 35 (Lord Hoffmann) and para 105 (Lord Rodger of Earlsferry).
+The Human Rights Act 1998 contains no provision as to its territorial scope, except that section 22(6) provides that it extends to Northern Ireland.
+As already mentioned, amendments to extend the Act to the Channel Islands and the Isle of Man were rejected or withdrawn during the passage of the Act.
+The appellants contend that the courts of this country also have the power and the duty to grant relief on the basis that the respondents were acting as public authorities for the purposes of section 6 of the Human Rights Act 1998 when recommending the Order in Council by which the Reform Law was given Royal Assent.
+The respondents position is that the Act does not apply because (a) it was not intended to apply to obligations of the United Kingdom assumed under Article 56 (formerly Article 63) of the Convention, and Article 4 of the First Protocol, in respect of compliance with the Convention in territories for the international relations of which it is responsible; and (b) in any event the respondents were not acting as public authorities of the United Kingdom for the purposes of section 6 of the Act, but were acting to advise Her Majesty in respect of her role as sovereign of the Bailiwick of Guernsey.
+Wyn Williams J accepted both points: [2008] 3 WLR 867, paras 89 96.
+The Court of Appeal agreed with Wyn Williams J on the first point, but disagreed on the second point: Pill LJ: [2009] 2 WLR 1205, paras 106 109.
+The appellants accepted in the hearing before the Appellate Committee that the point was academic, but drew attention to the fact that the House of Lords was prepared to address such points if they were of general importance: R v Secretary of State for the Home Department, Ex p Salem [1999] 1 AC 450, 456 457.
+In R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2006] 1 AC 529 the Secretary of State had instructed the Commissioner of South Georgia to issue fishing licences to two specified vessels, which had the effect that the claimants vessel did not receive a licence.
+The claimant sought judicial review and damages for deprivation of a possession under Article 1 of the First Protocol.
+The Convention had been extended to South Georgia and the South Sandwich Islands, but not the First Protocol.
+The instruction was quashed on the ground of procedural unfairness: [2002] EWCA Civ 1409.
+The question before the House of Lords was whether the claimant could sue for damages under sections 6 and 7 of the Human Rights Act 1998.
+As in the present appeal, this was taken to involve two issues, failure on either of which was fatal to the claim.
+The first issue was whether the instruction had been issued by the Crown in right of the United Kingdom, or in right of South Georgia and the Sandwich Islands.
+In the latter event the Secretary of State acting on behalf of HM the Queen would not be a United Kingdom public authority for the purposes of section 6.
+The second issue was whether the claimant had established breach of a Convention right for the purposes of section 7 of the Human Rights Act.
+On the first issue it was held by a majority that the instruction had been given by the Crown acting through the Secretary of State in the context of South Georgia and the South Sandwich Islands, and Secretary of State had acted on behalf of HM the Queen in right of that territory and not of the United Kingdom.
+For the majority the question was the constitutional standing of the instruction: at para 19, per Lord Bingham, para 64, per Lord Hoffmann, and para 79, per Lord Hope.
+The argument for the claimant that the instruction was given in the interests of the United Kingdom was rejected on the basis that whether the Secretary of States decision was motivated by the wider political and diplomatic interests of the United Kingdom was unsuitable for judicial determination (at para 18, per Lord Bingham), the court was neither concerned nor equipped to decide in whose interests the act was done (at para 64, per Lord Hoffmann); or that, although the question might be justiciable, for it to be explored would give rise to great uncertainty; it was irrelevant because the question was simply in what capacity the instruction was given by the Crown: at paras 78 79, per Lord Hope.
+Lord Nicholls of Birkenhead and Baroness Hale, dissenting, considered that the capacity in which the Crown acted was irrelevant: paras 45 46, 94 95.
+Baroness Hale of Richmond said that to treat capacity as decisive, when the legality of the instruction could be raised in United Kingdom courts, and when the Secretary of State was answerable, if at all, to the United Kingdom Parliament, would be a surrender of substance to form.
+The authority of the majority was weakened when in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (no. 2) [2009] 1 AC 453, para 46 Lord Hoffmann said that, in the light of Finnis, Common Law Constraints: Whose Common Good Counts? (2008) Oxford Legal Studies Research Paper 10/2008 (criticising the decision of the House of Lords in Quark and of the Court of Appeal in Bancoult [2008] QB 365), he thought that Lord Nicholls was right.
+Since it is agreed that this issue does not arise on the present appeal, it is not necessary to say more than that, as matters now stand, the approach laid down by the then majority of the House of Lords leads to the conclusion that the decisions of the Committee for the Affairs of Jersey and Guernsey and the Privy Council were taken as part of the constitutional machinery of the Bailiwick of Guernsey and of Sark for the approval and enactment of Laws in Sark, and that the fact that the decisions were taken by Ministers of the Crown who took into account the international obligations of the United Kingdom is irrelevant.
+It would be quite wrong for the approach in Quark to be revisited on an appeal (particularly with a panel of five) in which it does not arise, and in which it is not argued that Quark was wrongly decided and ought to be reconsidered.
+The second issue in Quark was whether the claimant had established breach of a Convention right for the purposes of section 7 of the Human Rights Act.
+Lord Nicholls considered that, even if the First Protocol had been extended to South Georgia and the South Sandwich Islands, the claimants would not have had a Convention right on which they claim damages under the Human Rights Act.
+He said at para 36: The Human Rights Act is a United Kingdom statute.
+The Act is expressed to apply to Northern Ireland: section 22(6).
+It is not expressed to apply elsewhere in any relevant respect.
+What, then, of Convention obligations assumed by the United Kingdom in respect of its overseas territories by making a declaration under article 56? In my view the rights brought home by the Act do not include Convention rights arising from these extended obligations assumed by the United Kingdom in respect of its overseas territories.
+I can see no warrant for interpreting the Act as having such an extended territorial reach.
+If the United Kingdom notifies the Secretary General of the European Council that the Convention shall apply to one of its overseas territories, the United Kingdom thenceforth assumes in respect of that territory a treaty obligation in respect of the rights and freedoms set out in the Convention.
+But such a notification does not extend the reach of sections 6 and 7 of the Act.
+The position is the same in respect of protocols
+Lord Hoffmann came to the same view on this point: The Act is concerned only with the Convention as it applies to the United Kingdom and not by extension to other territories: para 62.
+Lord Hope emphasised that the United Kingdom government would not be answerable in Strasbourg if the international obligation had not been extended to the overseas territory, but he said that he agreed with Lord Nicholls: para 93.
+Lord Bingham expressed no view on this point: para 26.
+Baroness Hale left the question open: para 98.
+Lord Hoffmann in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (no. 2) [2009] 1 AC 453, para 48, reiterated his view, but that too was a case in which the Convention had not been extended to the overseas territory (the British Indian Ocean Territory).
+In R (Al Skeini) vs Secretary of State for Defence [2008] 1 AC 153 Lord Bingham
+said, at para 20, that it was not clear that the view of Lord Nicholls in Quark commanded majority support.
+But Lord Brown (with whom Lord Carswell agreed: para 96) endorsed Lord Nicholls approach.
+He said (at para 134): . there is a distinction between rights arising under the Convention and rights created by the Act by reference to the Convention.
+A plain illustration of this arises from the temporal limitations imposed by the Act .
+Another illustration is the Act's non applicability in article 56 cases.
+Consider R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs .
+Even had the UK extended article 1 of the First Protocol to [South Georgia and the South Sandwich Islands], no claim would have been available against the Secretary of State under the Act although the UK would clearly have been liable internationally for any breach.
+It is for the dependent territorys own legislation to give effect to Convention rights, just as for Jersey, Guernsey and the Isle of Man.
+I would therefore dismiss the appeal.
+This is a case, by contrast with those in which the point has been canvassed, where the relevant Convention obligation has been extended to a dependency.
+But this point does not arise for decision on this appeal for the principal reason that it was conceded that there was jurisdiction to determine the lawfulness of the decisions of the Committee and the Privy Council.
+It might conceivably have arisen on the question of remedy, but that too would not arise on the view of the merits expressed in this judgment.
+In addition there would have been a separate ground for the non applicability of the Human Rights Act, namely the capacity in which the decisions were taken.
+Consequently it would also be wrong for the question whether the claimant had established breach of a Convention right to be decided on an appeal where it does not arise and would be an academic question.
+LORD HOPE
+I am in full agreement with the opinion of Lord Collins.
+I wish to add a few comments on two points only.
+First, while I agree that some of what Dr Slivnik (who appeared in person) said in his brief address was not relevant to the outcome of this appeal, he did bring vividly to life what it means to live in a small island community.
+He said that Sark works so well because of its small size.
+That was why it was possible to achieve such a high degree of democracy in such a small society, where everyone knows everyone else.
+His experience since coming to live there was that it was possible for someone to make a much greater contribution to public life than he had found anywhere else.
+It was a place where one could go round and talk to people.
+One could have much greater direct access to the legislators.
+This led to two considerations which he wished to stress.
+The first was that it would be in conflict with democracy in a small society to vest too much power in individuals.
+The powers that the Reform Law gave to the Seneschal, the highest paid official on the island, were disproportionate.
+The second was that, as membership of the Chief Pleas was unpaid, there was a very real problem in attracting able and willing candidates for election.
+The fact that so few tenants had expressed an interest in standing tended to reinforce his perception that the Seneschal had too much power.
+He himself was keen to volunteer for public life.
+But he was prevented from doing so because, as an alien, he was not entitled to stand for election.
+He said that the greatest prospect in achieving reforms that were truly in the best interests of democracy lay in quashing the Reform Law, so that the 1951 Law could be restored and more time given to the process of reform.
+The answer to these points lies, as Lord Collins has explained so carefully, in the principles that are to be derived from Article 3 of the First Protocol.
+As he has said, electoral rules have to be looked at in the round and in the light of each states own historical and political factors.
+Taken in the round, having regard to the things that the Seneschal can and cannot do and to the potential means of addressing any abuse, the powers that are given to him are well within the margin of appreciation allowed by that article.
+Dr Slivniks frustration at not being eligible for election is readily understandable.
+But there is ample authority for the proposition that the Chief Pleas decision granting the right to stand for elections only to those who are citizens of Sark was well within that margin of appreciation also.
+I agree that the appeal must be dismissed.
+Second, I wish to clear up any uncertainty which my remarks in R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2006] 1 AC 529, paras 92 93 may have caused; see paras 109 110 above.
+As I stated in para 93 of my opinion in that case, I was in full agreement with what Lord Nicholls of Birkenhead said about the territorial scope of the Human Rights Act 1998.
+This extended to para 36 of his opinion, where he said that notification by the United Kingdom that the Convention was to apply to its overseas territories did not extend the reach of the Act to those territories.
+I would respectfully endorse the observation by Pill LJ in the Court of Appeal [2009] 2 WLR 1205, para 105 that my own remarks should not be interpreted as meaning that notification attracted the application of the Act.
+What I was seeking to show, as an additional reason for agreeing with Lord Nicholls, was that notification under article 56 or, as the case may be, article 4 of the First Protocol was a pre condition for a consideration of that issue and that on the facts of that case this condition could not be satisfied.
+LORD SCOTT
+I am in full agreement with the reasons Lord Collins gives for dismissing this appeal.
+I can add nothing useful and for the reasons he gives I would do likewise.
+LORD BROWN
+I have read Lord Collins judgment and regard it as convincing and definitive on all the issues we have to decide.
+With regard to the applicability of the Human Rights Act 1998, to my mind the most interesting question debated before us, tempted though I have been to address it, I am persuaded by Lord Collins (see paras 100 111 of his judgment) that it would not be right to succumb.
+LORD NEUBERGER
+I have read the magisterial judgment of Lord Collins and agree with it.
+Accordingly, I too would dismiss this appeal.
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+Recitals 4, 5 and 7, taken together with Article 1, of Council Directive 2003/9/EC (the Reception Directive), encapsulate its purpose.
+They respectively provide: The recitals (4) The establishment of minimum standards for the reception of asylum seekers is a further step towards a European asylum policy. (5) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union.
+In particular, this Directive seeks to ensure full respect for human dignity and to promote the application of Articles 1 and 18 of the said Charter [inviolability of human dignity and the guarantee of the right to asylum with due respect to the Geneva Convention 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees] (7) Minimum standards for the reception of asylum seekers that will normally suffice to ensure them a dignified standard of living and comparable living conditions in all Member States should be laid down.
+Article 1 Purpose The purpose of this Directive is to lay down minimum standards for the reception of asylum seekers in Member States.
+Notwithstanding the seemingly clear terms of these provisions, the appellant in these cases argues that where an asylum seeker makes a second application for asylum after his first application has been finally rejected, he is not entitled to the benefits that are conferred by the Reception Directive.
+Those benefits include (in Article 11) certain provisions in relation to entitlement to be employed while awaiting the outcome of an asylum application.
+The Secretary of States argument was rejected by the Court of Appeal (Regina (ZO (Somalia) and others) v Secretary of State for the Home Department [2009] 1 WLR 2477, [2009] EWCA Civ 442) in its judgment delivered on 20 May 2009, allowing appeals by ZO (Somalia) and MM (Burma) from a decision of HH Judge Mackie QC of 25 June 2008.
+The Court of Appeal had also dismissed an appeal by the Secretary of State from a decision of Blake J of 11 December 2008 in the case of DT (Eritrea).
+Originally the appellant had appealed to this court against all three decisions of the Court of Appeal.
+Subsequently, however, DT was granted indefinite leave to remain in this country and, with the agreement of all the parties, the Secretary of State was permitted to withdraw the appeal in that case.
+The facts and history of proceedings
+ZO is a Somali national who arrived in the United Kingdom in 2003.
+She applied for asylum.
+That application was refused on 17 February 2004.
+A number of challenges were made to that refusal but the last of these finally foundered towards the end of 2004.
+On 31 March 2005 the Immigration Appeal Tribunal issued its determination in the case of NM and others (Lone Women Ashraf) (Somalia) CG [2005] UKIAT 00076.
+On 9 May 2005, solicitors acting on behalf of ZO made further submissions to the Secretary of State based on the IATs determination in the NM case.
+It was contended that this amounted to a fresh claim for asylum within the meaning of rule 353 of the Immigration Rules.
+AT the time of the hearing of this appeal, the Secretary of State had yet to decide whether leave to enter the UK should be given to ZO or whether the further submissions made on her behalf constitute a fresh claim.
+On 27 February 2007 ZO was granted permission to apply for judicial review to challenge the delay in dealing with her further submissions.
+On 5 June 2007 she wrote to the Secretary of State asking for permission to work.
+She advanced this claim on the grounds of hardship and suggested that, if it could not be granted, she would seek priority for her application for judicial review.
+The Secretary of State refused to prioritise consideration of ZOs further submissions and on 31 August 2007 refused permission to work.
+ZO renewed her application for permission to work on 8 October 2007, referring to rule 360 of the Immigration Rules (which deals with applications for permission to work) but this was rejected on 15 October 2007, on the ground that her application for asylum had been refused on 17 February 2004.
+Prompted by consideration of the decision of the High Court in R (FH) v Home Secretary [2007] EWHC 1571 (Admin), ZO conceded the ground of her application in relation to delay but in November 2007 she was given permission to amend the judicial review proceedings in order to challenge the refusal of permission to work under rule 360 of the Immigration Rules.
+The gravamen of the grounds of this latter challenge was that she had made an asylum claim on 9 May 2005.
+At an oral hearing on 30 January 2008, Stanley Burnton J set aside the grant of permission on the delay ground and refused permission to apply for judicial review on the Secretary of States refusal of consent to her taking up employment.
+She was subsequently given permission to appeal the dismissal of her application in relation to the employment ground and by a consent order of 7 May 2008, the Court of Appeal granted permission to apply for judicial review.
+This was the application that was subsequently heard and dismissed by HH Judge Mackie QC.
+MM is a Burmese national who made an application for asylum after he arrived in the United Kingdom in 2004.
+That application was refused and all attempts to challenge the refusal had failed by March 2005.
+On 9 May 2005 he also made further submissions which, he said, amounted to a fresh claim based on new evidence.
+Again in his case the Secretary of State has not yet decided whether to grant MM leave to enter the United Kingdom or whether he has made a fresh claim for asylum.
+On 27 July 2007 MM wrote to the Secretary of State asking for permission to work and referring to rule 360.
+This application was refused on 26 September.
+On 25 October 2007 MM applied for judicial review to challenge the delay in considering his further submissions and to challenge the refusal of permission to work.
+As in the case of ZO he based this on the circumstance that he had made an asylum application some 2 years and 5 months previously.
+On 10 March 2008, applying the decision in FH, the High Court refused permission to apply for judicial review on the delay ground but granted permission on the refusal of consent to take up employment.
+This application was also dismissed by Judge Mackie and allowed by the Court of Appeal.
+The issues
+On the hearing of the appeal to this court two principal issues were identified.
+The first was whether Article 11 of the Reception Directive applies to a person who has had an application for asylum in the United Kingdom finally determined against him when he makes a further application for asylum.
+Article 11 (2) of the Reception Directive is the critical provision in this instance.
+It provides: If a decision at first instance has not been taken within one year of the presentation of an application for asylum and this delay cannot be attributed to the applicant, Member States shall decide the conditions for granting access to the labour market for the applicant.
+The second main issue was whether this court should make a request of the Court of Justice for the European Union under Article 267 of the Treaty on the Functioning of the European Union (TFEU) for a preliminary ruling on the proper interpretation of the Reception Directive, in particular whether it is a measure intended to cover only the first application for asylum made by an individual to a Member State.
+A subsidiary argument was made in the printed case for MM and supported by ZO in her printed case.
+It was contended that, even if the Secretary of States claimed interpretation of the Reception Directive was accepted, the policy of refusing permission to work was in violation of Article 8 of the European Convention on Human Rights and Fundamental Freedoms.
+Blake J had dealt with this argument in the case of DT.
+He held that the Secretary of States policy was unlawful as an unjustified interference with the right to respect for a private life.
+The Court of Appeal did not address the Article 8 issue because of its conclusion on the reach of the Reception Directive.
+Notwithstanding this, Mr Fordham QC for MM submitted that this court should deal with the Article 8 argument and uphold the reasoning of Blake J.
+The court indicated that, if we required argument on the Article 8 point, an opportunity would be given to present it.
+In the event, however, since we have reached the same conclusion as did the Court of Appeal on the interpretation of the Reception Directive, this is not necessary.
+The case for the Secretary of State
+For the appellant Mr Tam QC submitted that the clear purpose of the Reception Directive was to devise minimum standards for those who were received by Member States for the first time as asylum seekers.
+He drew particular attention to the use of the expression reception in Article 1 and the title of the Directive.
+This, he said, indicated that the Directive was concerned with the initial encounter between the asylum seeker and the receiving State.
+That this was its purpose was reinforced by consideration of the corresponding words in some of the other Community languages, for example, opvang, accueil, aufnahme, accoglienza, acogida which translated to acceptance, reception or welcome.
+Mr Tams second argument was that the Directive had a settled meaning at the time of its adoption.
+That meaning could not be influenced by subsequent EU measures such as Directive 2004/83/EC of 29 April 2004 (the Qualifications Directive), Council Directive 2005/85/EC of 1 December 2005 (the Procedures Directive) or Council Regulation 343/2003/EC (the Dublin Regulation) adopted on 18 February 2003.
+The Court of Appeal had been wrong, Mr Tam said, to have had regard to these subsequent measures in reaching a conclusion on the interpretation to be applied to the Reception Directive.
+Mr Tam also argued that support for the interpretation that he advanced was to be found in various of the specific provisions of the Reception Directive.
+He suggested that, if the literal interpretation that the respondents contended for was adopted, a number of anomalies in the application of those provisions would be produced.
+He further claimed that the scheme that the Directive contained for dealing with abuse was inapt for repeat applications.
+If the Reception Directive was held to apply to such applications there was no effective mechanism to deal with abuse of the system.
+The enactment of the Directives, the Immigration Rules and the Dublin Regulation
+The Reception Directive was made pursuant to the power conferred by Article 63 (1) (b) of the Treaty Establishing the European Community (TEC).
+Article 63 was introduced to the TEC by the Treaty of Amsterdam which was concluded on 2 October 1997 and came into force on 1 May 1999.
+So far as is material, Article 63 provides: The Council, acting in accordance with the procedure referred to in Article 67, shall, within a period of five years after the entry into force of the Treaty of Amsterdam, adopt: 1. measures on asylum, in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and other relevant treaties, within the following areas: (a) criteria and mechanisms for determining which Member State is responsible for considering an application for asylum submitted by a national of a third country in one of the Member States, (b) minimum standards on the reception of asylum seekers in Member States, (c) minimum standards with respect to the qualification of nationals of third countries as refugees, (d) minimum standards on procedures in Member States for granting or withdrawing refugee status;
+Quite clearly, a comprehensive charter dealing with the various aspects of asylum applications was contemplated.
+This circumstance alone suggests that an identity of purpose for all the measures adopted to implement the proposed scheme was to be expected and, as we shall see, this conclusion is reinforced by examining the legislative history of those measures.
+The Reception Directive was adopted on 27 January 2003 and by Article 26 (1) it was required to be transposed into national law by 6 February 2005.
+Immigration Rules intended to implement the Directive were laid before Parliament on 11 January 2005.
+Rules 360 and 360A provide: 360 An asylum Applicant may apply to the Secretary of State for permission to take up employment which shall not include permission to become self employed or to engage in a business or professional activity if a decision at first instance has not been taken on the Applicant's asylum application within one year of the date on which it was recorded.
+The Secretary of State shall only consider such an application if, in his opinion, any delay in reaching a decision at first instance cannot be attributed to the Applicant. 360A If an asylum Applicant is granted permission to take up employment under Rule 360 this shall only be until such time as his asylum application has been finally determined.
+Rules 353 and 353A of the Immigration Rules deal with the question of whether submissions made after an asylum claim has been refused should be treated as a fresh claim.
+They provide: 353 When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim.
+The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered.
+The submissions will only be significantly different if the content: had not already been considered; and (i) (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.
+This paragraph does not apply to claims made overseas. 353A Consideration of further submissions shall be subject to the procedures set out in these Rules.
+An Applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise.
+This paragraph does not apply to submissions made overseas.
+The Secretary of State does not treat as an asylum seeker a person who has made a new application for asylum until that application has been accepted as a fresh claim.
+Once it is accepted, however, the asylum seeker enjoys the same rights of appeal as those given to a person whose first claim for asylum in this country has been rejected.
+He is also given the right to apply for permission to work (PTW).
+The Enforcement Instructions and Guidance Manual (the manual) issued by the Secretary of State provides in paragraph 23.10.4: Permission to work Fresh claims If a failed asylum seeker makes a fresh asylum claim then provided it is accepted as a fresh claim the procedures set out above should be followed, i.e. the Claimant will be entitled to apply for PTW provided he satisfies the criteria in Paragraph 360 of the Rules, otherwise any request for PTW would be a mandatory refusal.
+If the new asylum claim is not accepted as a fresh claim the person will have no entitlement to apply for PTW.
+As a matter of general practice the Secretary of State does not make a preliminary decision on whether a repeat application constitutes a fresh claim.
+Instead, the decision on whether the new application is to be treated as a fresh claim is made at the same time as the decision to either allow or reject the claim.
+On this account, the Court of Appeal unsurprisingly decided that paragraph 23.10.4 was unlikely to benefit a subsequent asylum seeker.
+It was also concluded that the fact that para 23.10.4 of the manual gives the potential benefit of article 11 to a subsequent asylum seeker whose claim has been accepted as a fresh claim does not assist in the interpretation of the Reception Directive.
+A short time after the adoption of the Reception Directive, on 18 February 2003, the Dublin Regulation was adopted.
+This established the criteria and mechanisms for determining which Member State should have the responsibility of examining an asylum application lodged in one of the Member States by a third country national.
+It came into force on 17 March 2003.
+The Qualification Directive was adopted on 29 April 2004.
+It prescribed minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection to be granted to them.
+The Procedures Directive was adopted on 1 December 2005.
+As Mr Tam pointed out, this was some ten months after the Reception Directive was required to be transposed into national law.
+The Procedures Directive set out minimum standards on procedures in Member States for granting and withdrawing refugee status.
+The interpretation of application for asylum in the Reception and Procedures
+Directives
+Article 2 of the Reception Directive contains definitions of the expressions, application for asylum and applicant or asylum seeker as follows: (b) 'application for asylum' shall mean the application made by a third country national or a stateless person which can be understood as a request for international protection from a Member State, under the Geneva Convention.
+Any application for international protection is presumed to be an application for asylum unless a third country national or a stateless person explicitly requests another kind of protection that can be applied for separately; (c) 'applicant' or 'asylum seeker' shall mean a third country national or a stateless person who has made an application for asylum in respect of which a final decision has not yet been taken;
+Virtually identical definitions are contained in Article 2 of the Procedures Directive: (b) "application" or "application for asylum" means an application made by a third country national or stateless person which can be understood as a request for international protection from a Member State under the Geneva Convention.
+Any application for international protection is presumed to be an application for asylum, unless the person concerned explicitly requests another kind of protection that can be applied for separately; (c) "applicant" or "applicant for asylum" means a third country national or stateless person who has made an application for asylum in respect of which a final decision has not yet been taken;
+There can be no doubt that subsequent applications for asylum come within the definitions contained in Article 2 of the Procedures Directive and Mr Tam did not seek to argue otherwise.
+Subsequent applications are mentioned in recital 15 of the Procedures Directive and in Articles 7 (2), 23 (4) (h), 32, 34 and 39 (1) (c).
+It is clear that the scheme of the Directive is workable only if the definition covers repeat applications.
+In particular, Article 32 gives power to Member States to undertake a preliminary examination of a subsequent application in order to ascertain whether new elements or findings have arisen or have been presented by the applicant which touch on the question whether he or she qualifies as a refugee.
+This unquestionably means that a subsequent application is an application for asylum within the meaning given to that term in Article 2 (b).
+On the Secretary of States case, the expression application for asylum must be given a markedly different meaning in the Reception Directive from that in the Procedures Directive.
+Mr Tam seeks to dismiss this apparent anomaly by suggesting that the purpose of each of the Directives is quite different.
+By way of preliminary observation on this claim, one may note that, if it is correct, it is surprising that the draftsman of the later measure did not employ a different formulation for the definitions of the terms application for asylum and applicant for asylum from those used in the Reception Directive.
+If Mr Tam is right, using almost identical language was, at best, highly misleading.
+But it is even more surprising, if the Reception Directive was not intended to apply to subsequent applications, that the text of the Directive did not make it unequivocally clear that these would not be covered.
+It is in any event clear that the purpose of both Directives (and, incidentally the Qualification Directive and the Dublin Regulation) is the same.
+Apart from mirroring the definitions contained in Article 2 of the Reception Directive, the critical recitals in the Procedures Directive bear a striking resemblance to those in the Reception Directive.
+While Mr Tam may be right that, as a matter of general principle, later legislation should not operate to change the established meaning of an earlier enactment, the manner in which the later legislation is framed may provide an insight into the proper interpretation of the earlier instrument.
+Whatever may be said on this matter on a theoretical basis, however, the matter is put beyond any doubt by an examination of the legislative history of the two measures.
+Much was made by Mr Tam of the fact that the Procedures Directive was a much later instrument than the Reception Directive but it is quite clear that both Directives shared if not an exactly time coincident genesis at least a broadly common ancestry.
+In fact, the proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status was first made on 20 September 2000 whereas the proposal for the Reception Directive was published in the Official Journal of the European Union on 31 July 2001 (Official Journal 213E, 31/07/2001 P. 0286 0295).
+The proposal for the Reception Directive contained an overview of the standards that the Directive would be designed to cover.
+Among these were the reception conditions that should be granted, in principle, at all stages and in all kinds of asylum procedures (the emphasis has been added).
+The most significant portion of the proposal document, however, is found in the part that deals with definitions.
+The proposed definition for application for asylum is in broadly similar terms to those that ultimately were enacted.
+The proposal for Article 2 (c) is particularly illuminating.
+It is in these terms: Applicant or applicant for asylum means a third country national or a stateless person who has made an application for asylum in respect of which a final decision has not yet been taken.
+A final decision is a decision in respect of which all possible remedies under Council Directive //EC [on minimum standards on procedures in Member States for granting and withdrawing refugee status] have been exhausted;
+From this it is indisputably clear that it had always been intended not only that the definitions of applicant for asylum in both Directives should be congruent with one another but also that an application should not be regarded as having been subject to a final decision until all possible remedies had been pursued and determined.
+This can only mean that subsequent applications would fall within the purview of the definitions of application for asylum and asylum seeker in the Reception Directive.
+If further proof that this was so was needed, it is provided in a document which sets out the suggested amendments of the proposal document.
+Amendment 114 deals with Article 2 (c).
+It states: (c) Applicant means a third country national or a stateless person who has made an application for asylum or another form of international protection in respect of which a final decision has not yet been taken.
+A final decision is a decision in respect of which all possible remedies have been exhausted (original emphasis but underlining added).
+I therefore conclude that an application for asylum in the Reception Directive must be interpreted to include a subsequent application made after an original application has been determined and that the term asylum seeker should be construed accordingly to include a person who makes such a subsequent application.
+This conclusion seems to me to chime well with the spirit of the recitals to the Directive, particularly recital 7.
+The Directive seeks to set minimum standards for the reception of asylum seekers that will normally suffice to ensure them a dignified standard of living.
+It would be, in my view, anomalous and untoward that an applicant who makes a subsequent application after his first application has been finally disposed of should be denied access to standards that are no more than the minimum to permit him to live with some measure of dignity.
+Moreover, if the Directive was found not to apply to subsequent applications for asylum this would give rise to a surprising incongruity.
+First time applications for asylum made long after an asylum seeker arrived in this country would be governed by the Directive but a perfectly genuine applicant who makes a subsequent application, perhaps within a relatively short time of arrival, would be denied the benefits that it affords.
+Article 3 applies the Directive to all third country nationals and stateless persons who make an application for asylum at the border or in the territory of a Member State.
+It is clear, therefore, that a person who has been in the United Kingdom for some time can apply for asylum and, on the interpretation that the appellant espouses, such a person would be entitled to the benefits of the Reception Directive whereas an applicant who has made an application immediately on arrival would lose those benefits forever after the first application has been determined.
+The Court of Appeal considered that the strongest argument in favour of the interpretation advanced by the Secretary of State was that the word reception had been used so prominently in the Directive.
+I have therefore considered that argument carefully but, as Mr Fordham pointed out, one can be received, or have an application received, or return to reception more than once.
+The Directive stipulates what must happen when one is received into the asylum system.
+There is nothing unusual or untoward in the notion that one can be received into that system on more than one occasion.
+I do not consider that the corresponding words of the other Community languages on this point detract from that conclusion.
+One can be received, accepted or even welcomed several times.
+I would therefore dismiss the appeals.
+Since, however, much of the argument for the appellant was devoted to the anomalies that, it was said, would arise if the Reception Directive was held to apply to subsequent applications, it is right that I should deal, albeit briefly, with those claims.
+By way of preamble, however, I should observe that, while seeking to deduce the purpose of an item of legislation from claimed difficulties that its literal implementation will involve is not an illegitimate exercise, it is one that must be approached with caution.
+Where a different purpose from that canvassed is unmistakably clear from, for instance, the text of the instrument and its enacting history, supposed problems that may arise from giving effect to that purpose cannot be permitted to frustrate the intention of the legislative body.
+The claimed anomalies
+Articles 5 and 6 of the Reception Directive deal respectively with information and documentation that must be given to an applicant for asylum.
+Mr Tam pointed out that there is no reference in either article to subsequent applications and it is therefore to be supposed that, if the Reception Directive applies to these, the same information and documentation will have to be provided on each occasion.
+In order to assess the administrative burden that Mr Tam suggests will thereby be cast on the Home Department, it is necessary to look at the actual provisions.
+Article 5 is in the following terms: Article 5 Information 1.
+Member States shall inform asylum seekers, within a reasonable time not exceeding fifteen days after they have lodged their application for asylum with the competent authority, of at least any established benefits and of the obligations with which they must comply relating to reception conditions.
+Member States shall ensure that applicants are provided with information on organisations or groups of persons that provide specific legal assistance and organisations that might be able to help or inform them concerning the available reception conditions, including health care. 2.
+Member States shall ensure that the information referred to in paragraph 1 is in writing and, as far as possible, in a language that the applicants may reasonably be supposed to understand.
+Where appropriate, this information may also be supplied orally.
+The information that is required to be provided under this Article is likely to be of a routine nature and one may reasonably anticipate that in most cases it will involve no more than issuing precisely the same material as was provided when the first application was made.
+Presumably, it could be conveniently held on file and generated more or less automatically on receipt of a second or subsequent application.
+On that basis, it is difficult to accept that this would impose a substantial logistical burden on the authorities.
+In any event, it is not in dispute that subsequent applicants for asylum must be provided with information under Article 10 (1) (a) of the Procedures Directive which provides: 1.
+With respect to the procedures provided for in Chapter III, Member States shall ensure that all applicants for asylum enjoy the following guarantees: (a) they shall be informed in a language which they may reasonably be supposed to understand of the procedure to be followed and of their rights and obligations during the procedure and the possible consequences of not complying with their obligations and not cooperating with the authorities.
+They shall be informed of the time frame, as well as the means at their disposal for fulfilling the obligation to submit the elements as referred to in Article 4 of Directive 2004/83/EC.
+This information shall be given in time to enable them to exercise the rights guaranteed in this Directive and to comply with the obligations described in Article 11;
+To have to provide the further information that Article 5 of the Reception Directive requires does not seem to me to be a significant encumbrance.
+There has to be a relay of information in any event.
+The extra material that has to be provided will in most cases have been prepared already.
+In those circumstances, I find it impossible to accept that the requirement to supply the Article 5 information again could be described as an anomaly.
+Moreover, as Mr Fordham put it, a renewed entitlement to information is not in the least absurd.
+If it is considered that the provision of the information on the first application for asylum is vital, why should it not be considered important on subsequent applications?
+Article 6 of the Reception Directive provides: Documentation 1.
+Member States shall ensure that, within three days after an application is lodged with the competent authority, the applicant is provided with a document issued in his or her own name certifying his or her status as an asylum seeker or testifying that he or she is allowed to stay in the territory of the Member State while his or her application is pending or being examined.
+If the holder is not free to move within all or a part of the territory of the Member State, the document shall also certify this fact. 2.
+Member States may exclude application of this Article when the asylum seeker is in detention and during the examination of an application for asylum made at the border or within the context of a procedure to decide on the right of the applicant legally to enter the territory of a Member State.
+In specific cases, during the examination of an application for asylum, Member States may provide applicants with other evidence equivalent to the document referred to in paragraph 1. 3.
+The document referred to in paragraph 1 need not certify the identity of the asylum seeker. 4.
+Member States shall adopt the necessary measures to provide asylum seekers with the document referred to in paragraph 1, which must be valid for as long as they are authorised to remain in the territory of the Member State concerned or at the border thereof. 5.
+Member States may provide asylum seekers with a travel document when serious humanitarian reasons arise that require their presence in another State.
+The provision of a document that confirms the holder as an asylum seeker is obviously important to any applicant for asylum.
+Without it, he or she is liable to be removed from the jurisdiction.
+So far from being anomalous that this should be provided to someone who has made a subsequent application for asylum, it seems to me that, in order to forestall removal, the availability of such a document is imperative so that the applicants continued entitlement to remain in the jurisdiction may be established.
+I do not therefore accept that the need to provide documentation under Article 6 on subsequent applications can be characterised as irregular or anomalous.
+Furthermore, there is no requirement under the Procedures Directive to supply the documentation specified by Article 6 of the Reception Directive.
+Plainly, an asylum seeker who makes a subsequent application must be entitled to remain in the jurisdiction in which the application is made until the procedures provided for in the Procedures Directive have been completed.
+This is a clear indication that Article 6 of the Reception Directive was intended to apply to subsequent applications for asylum and, by the same token, an obvious sign that the Procedures Directive was drafted on the assumption that this was so.
+Otherwise, one would have expected that the Directive which was enacted later would have contained provision for the supply of documentation that would have protected the asylum seeker from removal.
+The next avowed anomaly that Mr Tam identified was in the application of Article 9.
+It provides that Member States may require medical screening for applicants on public health grounds.
+He suggested that this power makes sense only in the context of an initial encounter between an asylum seeker and a Member State.
+Properly understood, the appellants complaint about this Article being applied to subsequent applications, is that it is unnecessary rather than anomalous for this to happen.
+Even if this is so, it is contrived to argue that because medical screening is not necessary for subsequent applications for asylum, it must be taken that the entire Reception Directive should be held not to apply to such applications.
+This is a power to be used when required and it is entirely unsurprising that it is expressed in the general and pithy way in which it appears in the Directive.
+The assertion made by the appellant in relation to Article 10 falls into essentially the same category.
+It provides: Schooling and education of minors 1.
+Member States shall grant to minor children of asylum seekers and to asylum seekers who are minors access to the education system under similar conditions as nationals of the host Member State for so long as an expulsion measure against them or their parents is not actually enforced.
+Such education may be provided in accommodation centres.
+The Member State concerned may stipulate that such access must be confined to the State education system.
+Minors shall be younger than the age of legal majority in the Member State in which the application for asylum was lodged or is being examined.
+Member States shall not withdraw secondary education for the sole reason that the minor has reached the age of majority. 2.
+Access to the education system shall not be postponed for more than three months from the date the application for asylum was lodged by the minor or the minor's parents.
+This period may be extended to one year where specific education is provided in order to facilitate access to the education system. 3.
+Where access to the education system as set out in paragraph 1 is not possible due to the specific situation of the minor, the Member State may offer other education arrangements.
+The appellant is unquestionably right that some of the provisions contained in this Article cannot be fitted comfortably into second time applications.
+The power to postpone access to education, for instance, provided for in para 2 of the Article cannot have been intended to be exercisable by the Member State on more than one occasion.
+But this is not a sound basis on which to reason that, as a consequence, it cannot have been intended that the Reception Directive should apply to subsequent asylum applications.
+The Article should be understood for what it is a general purpose provision setting out various duties and powers covering a variety of circumstances.
+It would perhaps have been preferable if the Article had stated which of its parts should not apply to subsequent applications but the absence of such a statement does not establish that those applications are not covered by the Directive.
+I have concluded therefore that none of the claimed anomalies (or their collective impact) constitutes a reason for believing that it was intended that the Reception Directive should not apply to subsequent applications for asylum.
+I am reinforced in that view by the consideration that, if the Reception were held not to apply, some decidedly curious consequences would follow.
+For instance, the duties under Article 8 of the Directive (to maintain as far as possible family unity) and under Article 13 (2) (to ensure a standard of living adequate for the health of applicants and capable of ensuring their subsistence) and 15 (1) (the provision of necessary health care) would not apply to those who make subsequent applications for asylum.
+When one considers that many of these will be genuine applicants, it is impossible to believe that it was intended that they should not have access to these basic amenities and facilities.
+Mr Tam submitted that, if the Reception Directive is held to apply to subsequent applications, the potential for abuse of the system of applications for asylum is greatly increased.
+Wholly unmeritorious claims would be put forward by applicants who saw the opportunity of not only delaying their removal but also of gaining access to the benefits that the Directive confers.
+This argument was rejected by the Court of Appeal on, according to Mr Tam, two grounds first that administrative problems because of unmeritorious claims should not determine the proper interpretation to be given to the Directive and, second, that abuse of the system by lodging subsequent applications was sufficiently catered for by Article 16 of the Directive which provides: Reduction or withdrawal of reception conditions 1.
+Member States may reduce or withdraw reception conditions in the following cases: (a) where an asylum seeker: abandons the place of residence determined by the competent authority without informing it or, if requested, without permission, or does not comply with reporting duties or with requests to provide information or to appear for personal interviews concerning the asylum procedure during a reasonable period laid down in national law, or has already lodged an application in the same Member State.
+When the applicant is traced or voluntarily reports to the competent authority, a duly motivated decision, based on the reasons for the disappearance, shall be taken on the reinstallation of the grant of some or all of the reception conditions; (b) where an applicant has concealed financial resources and has therefore unduly benefited from material reception conditions.
+If it transpires that an applicant had sufficient means to cover material reception conditions and health care at the time when these basic needs were being covered, Member States may ask the asylum seeker for a refund. 2.
+Member States may refuse conditions in cases where an asylum seeker has failed to demonstrate that the asylum claim was made as soon as reasonably practicable after arrival in that Member State. 3.
+Member States may determine sanctions applicable to serious breaching of the rules of the accommodation centres as well as to seriously violent behaviour. 4.
+Decisions for reduction, withdrawal or refusal of reception conditions or sanctions referred to in paragraphs 1, 2 and 3 shall be taken individually, objectively and impartially and reasons shall be given.
+Decisions shall be based on the particular situation of the person concerned, especially with regard to persons covered by Article 17, taking into account the principle of proportionality.
+Member States shall under all circumstances ensure access to emergency health care. 5.
+Member States shall ensure that material reception conditions are not withdrawn or reduced before a negative decision is taken.
+Systemic difficulties which the interpretation adopted by the Court of Appeal would create were not advanced in order to influence the choice of interpretation, Mr Tam claimed, but to demonstrate that an interpretation that leads to such difficulties is not consistent with the purpose of the Reception Directive.
+As a general principle, it is of course correct that difficulties in implementing legislation may provide a useful guide to the identification of the true purpose of an enactment but where, as here, the purpose of the Directive is unmistakably clear, the fact that this may give rise to administrative difficulties cannot impel an interpretation which is inconsistent with that purpose.
+It appears to me that Hooper LJ was saying no more when he observed in para 70 that he would be loath to interpret the Reception Directive restrictively because of the administrative problems which this country faces dealing with the backlog.
+It is, I think, clear that the impact of Article 16 will fall principally on first time applications for asylum.
+I consider that there is force in the appellants argument that the first and second tirets of Article 16 (1) (a) cannot sensibly be applied to subsequent applications.
+Mr Tam accepted, however, that the third tiret could perform an effective attenuation of abuse but he characterised this as a bootstrap argument.
+In other words, just because the third tiret can be applied to those who re apply for asylum after their first application has been finally determined, this is not a reason to expand the overall relevance of the Directive to subsequent applications.
+This argument is eclipsed, however, by the determination that, for the reasons given earlier, the Directive does apply to subsequent applications.
+Once that position is reached, the efficacy albeit limited of Article 16 (1) (a) to subsequent applications emerges.
+Mr Tam is also undoubtedly right in saying that Article 16 (2) does not apply to subsequent applications but his submission on this point is met by his own bootstrap argument.
+Simply because one aspect of a particular provision is not capable of adaptation to a particular species of application it does not follow that it must fall outside the Directives ambit.
+In other words, although the principal focus of Article 16 is on first applications, it should not be assumed that it was not intended to cover subsequent applications as well.
+Article 16 (4) requires individual attention to be given to decisions for reduction, withdrawal or refusal of reception conditions and the appellant has argued that the detailed assessment that this will entail would impose an onerous burden on the immigration authorities which would in turn limit the scope for withdrawal or reduction of reception conditions.
+I cannot accept this argument.
+There does not appear to be any reason in principle why the State should not be able to adopt what the respondents described as the screening short cut of accelerated determinations, particularly in view of the inroads which Mr Tam has told us are being made in the backlog of repeat applications.
+The answer to the possibility of abuse in the making of repeat applications must surely lie in the devising of streamlined procedures for identifying and rejecting promptly those that are devoid of merit.
+This is undoubtedly what was contemplated by certain provisions in the Procedures Directive, particularly Article 24 (1) (a) (which empowers Member States to create specific procedures to allow for a preliminary examination for the purposes of processing cases); and Article 32 (2) (which permits a specific procedure to be applied after a decision has been taken on a previous application).
+Recital 15 of the Procedures Directive is also relevant.
+It states: (15) Where an applicant makes a subsequent application without presenting new evidence or arguments, it would be disproportionate to oblige Member States to carry out a new full examination procedure.
+In these cases, Member States should have a choice of procedure involving exceptions to the guarantees normally enjoyed by the applicant.
+These provisions point powerfully to the way in which the problem of unmeritorious applications should be confronted and dealt with.
+This is not to be achieved by disapplying the Reception Directive to all repeat applications whether or not they have merit.
+The problem of undeserving cases should be counteracted by identifying and disposing promptly of those which have no merit and ensuring that those applicants who are genuine are not deprived of the minimum conditions that the Directive provides for.
+A reference under Article 267 of TFEU?
+In support of the application for a reference to ECJ under Article 267 of TFEU, the appellant relied on Case 283/81 CILFIT Srl v Ministro della Sanita [1982] ECR 3415.
+At paragraph 16 of its judgment in that case, the ECJ had said: the correct application of Community Law may be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved.
+Before it comes to the conclusion that such is the case, the national court or tribunal must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice.
+Only if those conditions are satisfied, may the national court or tribunal refrain from submitting the question to the Court of Justice and take upon itself the responsibility for resolving it.
+This sets what appears at first sight to be a very high standard.
+The national court must not only be convinced that there is no reasonable doubt as to how the question should be answered but must also be of the unequivocal view that its opinion would be shared by courts in all the Member States and the Court of Justice.
+But I do not believe that this passage was meant to convey to national courts the need to conduct an analysis of how the matter might be approached in all of those other courts.
+Rather, it seems to me that what is required is for the national court to conduct a careful examination of the reasoning underlying any contrary argument ranged against the view that it has formed.
+If, having done so, the court is of the opinion that such an argument, on any conventional basis of reasoning, could not be accepted, a reference should not be made.
+Having anxiously assessed the appellants arguments against this yardstick, I have come firmly to the view (particularly in light of the legislative history of the Reception Directive and the Procedures Directive) that a reference is not required in this case and I would therefore also dismiss the appellants application under Article 267 of TFEU.
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+When the court issued its previous judgment on this appeal ([2013] UKSC 15), it allowed the parties an opportunity to make written submissions as to the form of the order to be made.
+The Commissioners then made submissions inviting the court to make a further reference to the Court of Justice of the European Union under article 267 of the Treaty on the Functioning of the European Union.
+LMUK made submissions opposing such a reference and inviting the court to dismiss the appeal.
+Summarising matters developed at much greater length in the submissions, the Commissioners have put forward two principal arguments in favour of a further reference.
+First, they submit that a national court is obliged under EU law to make a further reference if it finds the ruling of the CJEU on the first reference to be incomplete or unsatisfactory.
+In support of that submission, they refer to the judgment in Wnsche Handelsgesellschaft GmbH & Co v Federal Republic of Germany (Case 69/85) [1986] ECR 947, in which the court said at para 15 that the authority of a preliminary ruling does not preclude the national court from properly taking the view that it is necessary to make a further reference before giving judgment.
+The court added that such a procedure may be justified when the national court encounters difficulties in understanding or applying the judgment, when it refers a fresh question of law to the court, or when it submits new considerations which might lead the court to give a different answer to a question submitted earlier.
+Secondly, the Commissioners submit that there must be an issue of EU law raised in the present appeal on which a decision is necessary, and which cannot be considered to be acte clair, given the difference of view on the court.
+In relation to the first point, LMUK point out correctly that the court did not in its earlier judgment question the European courts ruling on any question of EU law.
+On the contrary, the court recognised the binding character of the European courts judgment on questions as to the validity, meaning or effect of any EU instrument: see paras 56, 103 and 119.
+The court proceeded however on the basis of a more comprehensive consideration of the facts of the case than that set out in the reference to the European court: see for example paras 38, 40, 48 and 49.
+A different view of the facts from that on which the European court had based its ruling might of course necessitate a further reference in order to obtain further guidance, but it cannot be said that it would necessarily do so.
+On a different view of the facts, the difficulty which had led to the reference might no longer arise.
+That was the position in the present case, in the view of the majority of the court.
+They considered that, with the benefit of hindsight, there had in reality been no need for a reference in the first place: see paras 30, 87 and 118.
+They noted that the European court had itself considered that the case raised no new point of law: see paras 34, 55, 87 and 118.
+They considered the judgment of the European court in order to identify the principles which it had applied to the incomplete account of the facts which it had been requested to consider: see for example para 56.
+They then applied the principles established by the case law of the European court to the more comprehensive account of the facts which, in their judgment, this court required to consider: see paras 73 75 and 78 82.
+On that view of the case, there is no question of EU law which now requires to be elucidated, and therefore no need for a further reference.
+In relation to the second point, as I have explained the majority of the court considered that the case could be decided by applying well established principles to the particular facts.
+They also noted, as I have mentioned, that the European court had dealt with the reference on the basis that it raised no new point of law.
+That was also acknowledged by the minority of the court: para 129.
+Although the minority of the court questioned the approach adopted in the majority judgments to the application of EU law and to the judgment of the European court, those criticisms were not accepted by the majority, and they are not regarded by the court as now requiring or justifying a further reference.
+In so far as the minority raised issues of fairness under domestic law, they raise no issue of European law suitable for the European court.
+In the circumstances, including the European courts own assessment that the case raised no new point of EU law, the court does not consider that a further reference to the European court is necessary.
+It would be unfortunate if the position were otherwise, bearing in mind that this litigation has already lasted since 2003.
+Hilary Term [2013] UKSC 15 On appeal from: [2007] EWCA Civ 938 JUDGMENT Her Majesty's Revenue and Customs (Appellant) v Aimia Coalition Loyalty UK Limited (formerly known as Loyalty Management UK Limited) (Respondent) Lord Hope, Deputy President before Lord Walker Lord Wilson Lord Reed Lord Carnwath JUDGMENT GIVEN ON 13 March 2013 Heard on 24 and 25 October 2012 Appellant Philippa Whipple QC Suzanne Lambert (Instructed by VAT & Duties Litigation Team, Solicitor's Office, HM Revenue and Customs) Respondent David Milne QC Michael Conlon QC (Instructed by Hogan Lovells International LLP) LORD REED Introduction 1.
+This appeal concerns the well known Nectar scheme.
+Its essential elements as at the relevant time can be summarised as follows.
+A member of the scheme has an account with Aimia Coalition Loyalty UK Ltd, formerly called Loyalty Management UK Ltd (LMUK), the promoter of the scheme, and is issued with a Nectar card.
+When a member purchases goods or services from a retailer which has agreed with LMUK to participate in the scheme in relation to the issue of points, the retailer swipes the Nectar card and the members account with LMUK is electronically credited with a number of points.
+The member is then entitled to use the points to receive goods or services, either at no cost or at a reduced cost, from a retailer which has agreed with LMUK to participate in the scheme in relation to the redemption of points.
+When the member receives goods or services from that retailer, the retailer swipes the Nectar card and the members account with LMUK is electronically debited with the number of points which have been redeemed. 2.
+The scheme involves four parties: (1) the promoter of the scheme, LMUK; (2) the members of the scheme (collectors); (3) retailers of goods and services (sponsors), who pay for their customers, if they produce a Nectar card, to have points credited to their accounts with LMUK when they have purchased goods or services and their cards are swiped; and (4) other retailers of goods and services (redeemers), from whom collectors receive goods and services, at no cost or at a reduced cost, when their cards are swiped and points are debited to their accounts. 3.
+The scheme depends upon a network of contracts between LMUK and the three other parties.
+First, LMUK agrees with the collectors the terms upon which their accounts are operated, including an obligation on the part of LMUK that it will ensure that the collectors can obtain points when they purchase goods or services from sponsors, and that it will make goods and services available to the collectors at no cost, or at a reduced cost, when they redeem their points.
+LMUK provides the members with information about the identities of sponsors and redeemers, the particular goods and services which can be obtained using the points, and the number of points required in order to receive the goods or services in question. 4.
+Secondly, LMUK agrees with the sponsors that it will credit collectors accounts with the points for which the sponsor has agreed to pay and will secure that goods and services are made available to collectors on their redemption of the points.
+In return, the sponsors make payments to LMUK based on the number of points credited to collectors accounts, at an agreed value per point, together with an annual marketing fee.
+Each sponsor is granted by LMUK the exclusive right to participate in the Nectar scheme in a particular market sector.
+The contract entered into between LMUK and each sponsor provides that their agreement does not create a relationship of partnership or agency. 5.
+Thirdly, LMUK agrees with the redeemers that they will provide collectors with specified goods and services upon the redemption of the applicable number of points, and will in addition provide a number of other services to LMUK, in return for the payment of service charges by LMUK based on the number of points redeemed, at an agreed value per point.
+That value is lower than the value agreed with the sponsors.
+In relation to the other services which redeemers are required to supply, they must for example provide LMUK with information about problems affecting the quality or availability of goods and services, provide customer data and other information which LMUK requires for marketing purposes, grant permission for the use of their names and brands in marketing material, handle complaints by collectors and replace faulty goods.
+The commercial arrangements between LMUK and each of the redeemers are negotiated individually.
+The sponsors and collectors are not involved in these negotiations and are not normally in a position to know what arrangements have been made.
+In particular, since a sponsor or collector does not normally know the agreed redemption value of the points, it is not normally in a position to know the price paid by LMUK to a redeemer for the provision of particular goods and services: a price which will however be less than the amount which the sponsor paid LMUK for the issue of the points in question to the collector. 6.
+The three contracts involved in the scheme, described in the preceding paragraphs, are separate from, and should not be confused with, the contracts between the sponsors and the collectors, or the contracts between the collectors and the redeemers.
+In particular, the purchase of goods or services by a collector from a sponsor is a separate transaction, between different parties, from the crediting of points by LMUK to a collectors account, or the payment of LMUK by a sponsor in respect of those points. 7.
+As is apparent from this summary of the arrangements, which reflects the findings of fact made by the Value Added Tax and Duties Tribunal (the tribunal), to refer to points being issued, purchased and redeemed is to speak metaphorically.
+The points are a means of describing the collectors contractual rights to receive goods and services at no cost or at a reduced cost.
+The sponsors pay LMUK for the grant of those rights to collectors.
+LMUK uses part of its receipts from the sponsors to pay the redeemers to provide collectors with the goods and services in accordance with their rights.
+LMUK derives its profits from the difference between its receipts from the sponsors and its payments to the redeemers.
+In essence, therefore, when sponsors pay LMUK for the points issued to collectors, they are paying LMUK for granting the collectors the right to receive goods and services in exchange for their points.
+The redeemers provide the collectors with the goods and services to which their points entitle them, and LMUK pays the redeemers the redemption value of the points.
+It is thus by means of the redeemers performance of their contractual obligations to LMUK that LMUK fulfils the obligations which it has undertaken to the sponsors and collectors and so carries on its business.
+Since points are used by collectors to obtain goods or services, they may be regarded as a means of payment for those goods or services.
+The amount paid for the right to obtain the goods or services is the amount paid to LMUK by the sponsors for the issue of the points which the collector uses.
+The amount received by the redeemer, following the provision of the goods or services, is the lesser amount which it is paid by LMUK.
+It is common ground that the provision of points to collectors in return for payment by the sponsors is a taxable supply by LMUK.
+When LMUK charges VAT on the payments which it receives from the sponsors, it is therefore charging VAT on the amount which it receives as consideration for granting to collectors the right to receive goods and services in exchange for the points.
+The redeemers in turn charge VAT on the payments which they receive from LMUK.
+The VAT is charged at the standard rate, regardless of whether the goods and services provided to the collectors are zero rated or exempt, on the basis that it is charged in respect of a service supplied by the redeemers to LMUK.
+The facts of this case, as I have described them, are both complex and unusual.
+In particular, the business operated by LMUK differs in fundamental respects from sales promotion or customer loyalty schemes which are operated by retailers as part of their own business, and under which the issue of points or vouchers does not involve a taxable supply.
+That being so, LMUKs business cannot be assumed to fall within the scope of decided cases concerned with schemes of the latter kind.
+Rather than relying upon inexact analogies with other forms of business, it is essential to bear in mind the particular characteristics of the business carried on by LMUK when considering the issue raised in the present appeal.
+The issue in dispute is whether LMUK is entitled to deduct as input tax the VAT element of the payments which it makes to the redeemers.
+LMUK contends that the payments are the consideration for the redeemers supply to it of the services for which it has contracted with them.
+Since that supply is made to LMUK for the purpose of its business, it maintains that it is entitled to deduct the VAT as input tax in accordance with article 17 of Council Directive 77/388/EEC of 17 May 1977 (the Sixth Directive), as implemented by the Value Added Tax Act 1994.
+The Commissioners on the other hand decided in 2003 that the payments were third party consideration for the redeemers supply of goods and services to collectors, and that any VAT charged on such a supply was therefore not deductible by LMUK as input tax.
+LMUK appealed to the tribunal against that decision.
+The relevant legislation
+The relevant EU legislation is contained in Council Directive 67/227/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes (the First Directive), and the Sixth Directive, as amended by Council Directive 95/7/EC of 10 April 1995.
+These are translated into domestic law by the Value Added Tax Act 1994.
+It is sufficient to refer to the EU provisions.
+Article 2 of the First Directive describes the basic system of value added tax: The principle of the common system of value added tax involves the application to goods and services of a general tax on consumption exactly proportional to the price of the goods and services, whatever the number of transactions which take place in the production and distribution process before the stage at which tax is charged.
+On each transaction, value added tax, calculated on the price of the goods or services at the rate applicable to such goods or services, shall be chargeable after deduction of the amount of value added tax borne directly by the various cost components.
+The common system of value added tax shall be applied up to and including the retail trade stage.
+Article 2 of the Sixth Directive provides: The following shall be subject to value added tax: (1) the supply of goods or services effected for consideration within the territory of the country by a taxable person acting as such .
+Articles 5 and 6 define supply of goods and supply of services respectively.
+The former means the transfer of the right to dispose of tangible property as owner.
+The latter means, generally, any transaction which does not constitute a supply of goods within the meaning of article 5.
+Article 11 defines the taxable amount.
+It provides, so far as relevant: (A) Within the territory of the country 1.
+The taxable amount shall be: (a) in respect of supplies of goods and services, everything which constitutes the consideration which has been or is to be obtained by the supplier from the purchaser, the customer or a third party for such supplies.
+Article 17(2) allows a taxable person the right, in so far as the goods and services are used for the purpose of his taxable transactions, the right to deduct VAT due or paid in respect of goods or services supplied or to be supplied to him by another taxable person.
+The decision of the tribunal
+The tribunal allowed LMUKs appeal against the Commissioners decision ([2005] BVC 2628).
+It considered that the transactions in question could only be understood in the context of the arrangements between LMUK, the sponsors, the redeemers and the collectors viewed as a whole.
+Assessing the commercial and economic reality of the case on that basis, the tribunal concluded that the proper analysis of the transaction under which a [redeemer] provides goods to a [collector] in return for points is that the [redeemer] is providing a service to [LMUK] in assisting it to discharge its obligation to [collectors] (para 60).
+The tribunal reached the same conclusion in relation to the provision of services to collectors.
+The tribunal further concluded that LMUKs payments to redeemers were consideration only for the supply of the service which it received from them.
+In that regard, the tribunal applied the principle, established by the case law of the Court of Justice of the European Union, that the concept of consideration requires a direct link between the goods or services provided and the consideration
+received.
+The tribunal considered that LMUK was provided by redeemers with a
+In the view of the tribunal, the only taxable supply for which LMUK provided consideration was therefore the supply of services to itself.
+Since that was a supply to a taxable person for the purpose of its business, it followed that the VAT element of the amounts for which the redeemers invoiced LMUK was deductible as input tax.
+The tribunal declined to make a preliminary reference to the Court of Justice, observing that the real issue in the appeal did not concern the interpretation of the relevant directives but rather concerned the correct analysis of the facts.
+The decision of the High Court
+The Commissioners appealed against the tribunals decision: it is relevant to recall that an appeal lies on a point of law only.
+The appeal was allowed by the High Court ([2007] STC 536).
+Lindsay J noted that, when goods were provided by a redeemer to a collector, that must be a supply of goods to the collector.
+That followed from the definition of a supply of goods in article 5(1) of the Sixth Directive (the transfer of the right to dispose of tangible property as owner) as interpreted by the Court of Justice, notably in Auto Lease Holland BV v Bundesamt fr Finanzen (Case C 185/01) [2003] ECR 1 1317; [2005] STC 598: a case to which it will be necessary to return.
+Since there were passages in the tribunals decision where it had said that goods should be regarded as being supplied to LMUK, it followed that the tribunal had in that respect erred in law.
+Lindsay J considered that this error was material to the tribunals decision.
+Lindsay J stated that whether a redeemers provision of goods or services to a collector was wholly for points or partly for points, what the redeemer received had to include what LMUK became obliged to pay him upon his having supplied the collector.
+On that basis the service charge paid by LMUK to the redeemer was third party consideration for that supply.
+It followed that the payments made by LMUK to the redeemers could not also be consideration for the supply of services to LMUK.
+Ultimately, Lindsay J stated that he preferred the argument of the Commissioners because it seems to me the more consistent with the requirements, illustrated in Auto Lease and the coupon cases, that one should stand back and look at the characteristics of the provision and payment in issue in a relatively robust and commonsensical way (para 78).
+In that regard, emphasis was placed upon the fact that the payments made by LMUK were related to the number of points redeemed, and upon the absence of any separately identifiable fee for the services provided to LMUK other than the provision of goods and services to collectors.
+The decision of the Court of Appeal
+LMUKs appeal against the decision of the High Court was allowed by the Court of Appeal ([2008] STC 59).
+Chadwick LJ, in a judgment with which the other members of the Court of Appeal agreed, regarded the decision of the House of Lords in Customs and Excise Commissioners v Redrow Group plc [1999] 1 WLR 408; [1999] STC 161 as authority for two propositions: first, that a supplier could be treated as making, in the same transaction, both a supply of services to one person and a supply of different services to another person; and secondly, that in addressing a claim for input tax by one of those persons, the relevant questions were (1) whether that person had made a payment to the supplier, (2) whether the payment was consideration for the services supplied to him, and (3) whether the services were used or to be used in the course of a business carried on by that person.
+Applying the approach adopted by Lord Millett in the case of Customs and Excise Commissioners v Plantiflor Ltd [2002] UKHL 33; [2002] 1 WLR 2287; [2002] STC 1132, to which it will be necessary to return, Chadwick LJ observed that it might be said that LMUK made a supply of services to the collectors: it granted them rights which they could exercise to obtain goods and services.
+When a collector received goods and services from a redeemer, the redeemer made two different supplies.
+One was the supply of the goods and services to the collector; the other was the supply to LMUK of the services of providing the rewards to the collector and providing the agreed information and other services to LMUK.
+In relation to the supply by the redeemer to LMUK, the answer to each of the three relevant questions identified in Redrow was an affirmative: (1) LMUK made a payment to the redeemer, (2) that payment was consideration for services supplied by the redeemer to LMUK, since LMUK received something of value in return for the payment, and (3) the services supplied by the redeemer to LMUK were used or to be used in the course of LMUK's business of operating the scheme.
+It followed that there was a supply of services by the redeemer to LMUK and that the supply was made for a consideration.
+If that was correct, it was not in dispute that LMUK was entitled to input tax credit in respect of the VAT paid on that supply.
+Chadwick LJ also observed that it was important to keep in mind the tribunals finding that the collectors right to receive goods and services was a right which he acquired when he was credited with points.
+The sponsor paid LMUK for the issue of the points, and thus for the grant of that right.
+LMUK accounted to the tax authorities for the output tax.
+The tax authorities therefore received VAT at that time on the supply of the right to receive goods and services in exchange for the points.
+If, when the collector exercised that right, the provision of the goods or services was treated as a taxable supply to him, the tax authorities would receive not only VAT on the amount paid for the right to obtain those goods and services but also VAT on the amount paid to satisfy that right.
+If, on the other hand, the provision of the goods and services to the collector formed part of a service supplied by the redeemer to LMUK, the tax authorities would still receive from LMUK the VAT chargeable on the amount paid for the collectors right to obtain those goods and services (and on any additional amount paid by the collector when it exercised that right) but account would also be taken of LMUKs entitlement to deduct as input tax the VAT element of the amount which it had to pay in order to satisfy that right.
+The Court of Appeal declined to make a reference to the Court of Justice.
+Chadwick LJ observed that the real issue in the appeal was not as to the interpretation of Community legislation, or as to the effect to be given to judgments of the Court of Justice, but as to how principles which were not in doubt should be applied to the particular facts.
+That was an issue which the Court of Justice would expect the national court to resolve.
+The preliminary reference
+The Commissioners appealed against the decision of the Court of Appeal to the House of Lords.
+It is that appeal which is now before this court.
+The House referred the following questions to the Court of Justice for a preliminary ruling: In circumstances where a taxable person (the promoter) is engaged in the business of running a multi participant customer loyalty rewards programme (the scheme), pursuant to which the promoter enters into various agreements as follows: (a) Agreements with various companies referred to as sponsors under which the sponsors issue points to customers of the sponsors (collectors) who purchase goods or services from the sponsors and the sponsors make payments to the promoter; (b) Agreements with the collectors which include provisions such that, when they purchase goods and/or services from the sponsors, they will receive points which they can redeem for goods and/or services; and (c) Agreements with various companies (known as redeemers) under which the redeemers agree, among other things, to provide goods and/or services to collectors at a price which is less than would otherwise be payable or for no cash payment when the collector redeems the points and in return the promoter pays a service charge which is calculated according to the number of points redeemed with that redeemer during the relevant period; 1.
+How are articles 14, 24 and 73 of the Council Directive 2006/112/EC of 28 November 2006 [the VAT Directive] (formerly Articles 5, 6 and 11(A)(1)(a) of Council Directive 77/388/EEC of 17 May 1977 [the Sixth Directive]) to be interpreted where payments are made by the promoter to the redeemers? 2.
+In particular, are those provisions to be interpreted such that the payments of the kind made by the promoter to redeemers are to be characterised as: (a) consideration solely for the supply of services by the redeemers to the promoter; or (b) consideration solely for the supply of goods and services by the redeemers to the collectors; or (c) consideration in part for the supply of services by the redeemers to the promoter and in part for the supply of goods and/or services by the redeemers to the collectors? 3.
+If the answer to question 2 is (c), so that the service charge is consideration for two supplies by the redeemers, one to the promoter and the other to the collectors, what are the criteria laid down by Community law to determine how a charge such as the service charge is to be apportioned between those two supplies?
+The House of Lords reasons for concluding that it was necessary that a preliminary reference should be made are not recorded.
+Although the case was not straightforward, the view of the tribunal and of the Court of Appeal, that the issue in the case was as to how established principles should be applied to the particular facts, was one for which there was in my view much to be said.
+More importantly, it is apparent from what followed that the reference did not make sufficiently clear to the Court of Justice what the central issues were, as they emerged from the judgment of the Court of Appeal: issues which had appeared to the highest court in this country to be of such difficulty that a reference was required.
+Nor did the reference direct the attention of the Court of Justice to the facts found by the tribunal which bore most directly upon those issues.
+In relation to the facts, for example, the statement that the sponsors issue points to customers was a very compressed, and potentially misleading, way of describing the arrangement under which the sponsors computer communicates electronically with LMUK when a collectors card is swiped, LMUK then credits the collectors account with the rights represented by points, and the sponsor pays LMUK for the grant of those rights.
+That compressed description gave no indication of how different the arrangement was from that involved in a typical loyalty rewards scheme, where a retailer issues points to its customers: on the contrary, it tended to suggest that the LMUK scheme was of a similar character.
+Nor was it explained that, unlike the position in a typical loyalty rewards scheme, where no identifiable consideration is given for the issuing of points (as, for example, in Kuwait Petroleum (GB) Ltd v Customs and Excise Commissioners (Case C 48/97) [1999] STC 488, the issuing of points by LMUK was accepted by both parties to be a taxable supply.
+Nor was it explained that LMUK therefore accounted for VAT on the consideration given for the supply to collectors of the right to receive rewards.
+In relation to the issues emerging from the judgment of the Court of Appeal, one such was what might be described as the Redrow issue: that is to say, whether, considering the transactions in question in the context of the scheme as a whole, the payments made by LMUK to the redeemers were most aptly regarded as the consideration paid for the supply of services to it by the redeemers, which it required for the purposes of its business: services which included the provision of goods and services to collectors.
+A second issue, closely related to the first, was whether the principle that VAT is neutral in its effect upon taxable persons required that LMUK, having accounted for VAT on its supply of the right to receive the goods and services provided by redeemers, should be able to deduct the VAT element of the costs which it incurred in order to satisfy that right.
+As a consequence of these aspects of the reference, a situation was created in which, instead of the dialogue between the Court of Justice and national courts which is the essence of the preliminary reference procedure, there was a danger that the ruling of the Court of Justice would fail to address the issues which lay at the heart of the appeal before the referring court.
+The Court of Justice joined the reference with another, in the case of Baxi Group Ltd v Commissioners for Her Majestys Revenue and Customs [2008] STC 491, which was concerned with a loyalty scheme of an entirely different character.
+It appears to have considered that both cases alike involved the straightforward application of established principles, since it determined them without a submission from the Advocate General.
+In terms of article 20, paragraph 5 of its Statute, it may do so only where it considers that the case raises no new point of law.
+The preliminary ruling
+In its judgment Commissioners for Her Majestys Revenue and Customs v Loyalty Management UK Ltd and Baxi Group Ltd (Joined Cases C 53/09 and C 55/09) [2010] STC 2651, the Court of Justice reformulated the questions so as to ask the following: whether, in the context of a customer loyalty reward scheme such as those at issue in the main proceedings: payments made by the operator of the scheme at issue to redeemers who supply loyalty rewards to customers must be considered, in Case C 53/09, as third party consideration for a supply of goods to those customers, and/or, as the case may be, for a supply of services made by those redeemers for the benefit of those customers, and/or as the consideration for a supply of services made by those redeemers for the benefit of the operator of that scheme.
+The court answered the question which it had formulated as follows: Payments made by the operator of the scheme concerned to redeemers who supply loyalty rewards to customers must be regarded, in Case C 53/09, as being the consideration, paid by a third party, for a supply of goods to those customers or, as the case may be, a supply of services to them.
+It is, however, for the referring court to determine whether those payments also include the consideration for a supply of services corresponding to a separate service.
+The judgment of the Court of Justice
+In its judgment, the court made a preliminary observation about the limited nature of the reference, and the fact that it did not touch on the relationship between LMUK and the sponsors: It must also be stated, in relation to Case C 53/09, that neither the questions referred by the national court nor the views exchanged before the Court of Justice touched on the relationship between the sponsors and the operator of the loyalty reward scheme, namely LMUK.
+Consequently, the court will confine its assessment to the questions as referred by the national court. (para 32)
+It is readily understandable that the Court of Justice should have made that preliminary observation.
+The case law of the court, including its judgment in the present case, indicates that, when determining the relevant supply in which a taxable person engages, regard must be had to all the circumstances in which the transaction or combination of transactions takes place.
+In the present case, in particular, it would be impossible to answer the questions on a proper footing without considering as a whole the relationships between LMUK, the sponsors, the collectors and the redeemers.
+The Court of Justice was not however in a position to consider the matter in that way.
+This preliminary observation also implied that the assessment by the Court of Justice would leave out of account matters which had been regarded as being of importance in the national proceedings.
+In particular, the tribunal and the Court of Appeal had, as I have explained, attached significance to the undisputed fact that LMUK made taxable supplies when it granted to collectors, in return for payment by the sponsors, the right to receive goods and services from redeemers.
+The Court of Justice then carried out an evaluation of the facts of the case on that limited basis.
+It stated that it was evident from the orders for reference that the loyalty rewards schemes at issue in both the present case and the Baxi case were designed to encourage customers to make their purchases from particular traders.
+To that end, the court said, LMUK, in the present case, and Baxis sub contractor, @1, in the Baxi case, provide a number of services linked to the operation of those schemes (para 41).
+The court appears therefore to have inferred from the reference that the present case, like the Baxi case, concerned a scheme operated by traders with the assistance of a third party.
+That approach does not however fully reflect the facts found by the tribunal, by which this court is bound.
+LMUK did not provide a number of services linked to the operation of the scheme: it operated the scheme.
+The scheme was established by LMUK.
+It was designed to earn profits for LMUK, and to provide benefits to its millions of members (according to the evidence, 40% of UK households), as well as to the retailers who took part.
+The court did not mention that the services provided by LMUK included the supply of the right to receive the rewards.
+Nor did it mention that the payments made by LMUK to redeemers for the provision of the rewards were met out of the consideration which it received from sponsors for the supply of the right to receive the rewards.
+As I have explained, these matters had not been focused in the reference.
+They had however played an important part in the reasoning of the Court of Appeal.
+On the basis of its assessment of the economic reality, the Court of Justice concluded, in the first place, that loyalty rewards were supplied by the redeemers to the collectors.
+That much was not in dispute between the parties, and had been understood by the Court of Appeal.
+The court then considered whether the transactions between the collectors and the redeemers constituted supplies of goods or services to the collectors within the meaning of the Sixth Directive.
+In a case where the transaction involved the provision of goods, the court held that that must constitute a supply of goods within the meaning of article 5(1) of the Sixth Directive, since there was a transfer by the redeemer to the collector of the right to dispose of tangible property as owner.
+In a case where the transaction did not constitute a supply of goods, it held that it must constitute a supply of services within the meaning of article 6(1) of the Sixth Directive, since the transaction did not constitute a supply of goods, and article 6(1) defines the expression supply of services as meaning any transaction which does not constitute a supply of goods.
+These matters also were not in dispute and had been understood by the national courts.
+The court next considered whether the supply of goods or services by the redeemer to the collector was a taxable supply.
+As I have explained, that depended upon whether the supply was effected for consideration.
+The court noted that it followed from its case law that, in order for that requirement to be satisfied, there must be a direct link between the goods or service provided and the consideration received.
+These matters had been understood by the national courts.
+The court then addressed the possibility that collectors might have provided consideration for the supply of the rewards when they purchased goods and services from sponsors.
+It noted that the price which customers paid to the sponsors was the same whether the customers were collectors or not.
+The court referred to its earlier judgment in Kuwait Petroleum (GB) Ltd v Customs and Excise Commissioners (Case C 48/97) [1999] STC 488.
+That case had concerned a loyalty rewards scheme operated by a petrol retailer, under which customers received points which they could exchange for goods.
+Since the customers paid the same price for their petrol regardless of whether they took the points or not, the court held that the price could not be regarded as containing an element representing the value of the points or of the goods for which they were exchanged.
+The sale of the petrol which gave rise to the award of points, on the one hand, and the supply of goods in exchange for the points, on the other hand, were therefore two separate transactions.
+In the view of the court, it followed that, in the case at hand, the sale of goods and services giving rise to the award of points, on the one hand, and the supply of goods and services in return for points, on the other hand, were also two separate transactions.
+So far as it went, that conclusion was uncontentious.
+What is however significant is that the court did not address the possibility that the sponsors might have provided consideration for the supply of the rewards when they paid LMUK for the points issued to collectors, as the Court of Appeals judgment had suggested.
+The court again left out of account the fact (1) that the award of points was a taxable supply by LMUK, separate from the supply of goods or services by the sponsor, (2) that, as a consequence of LMUKs having made that supply, the collectors were entitled to receive goods and services at no cost or at a reduced cost, and LMUK had to make goods and services available to them on that basis, and (3) that it paid redeemers to provide those goods and services on that basis.
+These features had not been present in the Kuwait case.
+The court continued at para 57: In that regard, it is evident from the order for reference in Case C 53/09 that the exchange of points by the customers with the redeemers gives rise to the making of a payment by LMUK to those redeemers.
+The amount of that payment is the sum total of the charges, which are of a fixed amount for each point redeemed against all or part of the price of the loyalty reward.
+In that context, it must be considered that, as maintained by the United Kingdom Government, that payment corresponds to the consideration for the supply of the loyalty rewards.
+On the basis of the approach to the facts which the court had adopted, its conclusion is unsurprising.
+As I have explained, however, the terms of the reference resulted in the courts approaching the facts on a different basis from that which the referring court was bound to adopt.
+It left out of account a number of matters found by the tribunal and relied upon by LMUK before the national courts, including (1) the fact that sponsors pay LMUK for the grant to collectors of the right to receive goods and services, (2) the fact that LMUK meets the cost of the provision of goods and services to collectors out of those payments, (3) the fact that LMUK has, in return for those payments, granted collectors the right to receive goods and services without further payment or at a reduced cost, (4) the fact that collectors obtaining goods and services from redeemers are therefore exercising a right which has already been paid for, (5) the fact that the provision of goods and services by the redeemers is the means by which LMUK discharges its obligations to sponsors and collectors and (6) the fact that the payments made by LMUK to redeemers are therefore an essential cost of its business.
+More generally, as I have explained, the court does not appear to have assessed the transactions in question in the context of the arrangements considered as a whole, or determined on that basis what they amounted to in terms of economic reality.
+Nor is it apparent that the court took into account, in reaching its conclusion, the fact that (1) LMUK was agreed to make a taxable supply when it granted to collectors the right to receive goods and services at no cost or at a reduced cost, and (2) collectors receiving goods and services on that basis were therefore exercising a right for which LMUK had already been paid, and the consideration for which had already been subject to VAT.
+The court is not of course to be criticised for failing to take these matters into account.
+As I have explained, they were not focused in the reference, and the court understandably confined its assessment to the matters raised in the questions referred.
+The question whether there was also a supply of services to the promoter of the scheme was considered by the court principally in relation to the scheme with which the Baxi case was concerned.
+That scheme was of a different character from the Nectar scheme.
+It was an in house scheme under which Baxi issued points to its own customers, which they could redeem in order to obtain rewards in the form of goods.
+The operation of the scheme had been subcontracted to an operator, @1, which purchased the rewards and supplied them to customers in return for points.
+Baxi paid @1 the retail sale price of the rewards.
+The court held that there was a supply of goods by @1 to the customers.
+It was against that background that the court considered Baxis contention that (in the courts words) the consideration for the payment did not correspond to a supply of goods, but to a complex service under which the supply of rewards to customers was one of a number of services.
+On the facts of the case, the court concluded that the payments made by Baxi could be divided into two elements, each of which corresponded to a separate service: the supply of the rewards to the customers on the one hand, and the service supplied by @1 to Baxi on the other.
+In relation to the present case, the court stated at para 64: By contrast, in Case C 53/09, LMUK has, in both its written and oral observations, asserted that the payments which it makes to the redeemers are not the consideration for two or more separate services.
+It is, however, for the referring court to determine whether that is the case.
+The issues now arising
+The first issue which now arises is how this court should apply the ruling of the Court of Justice.
+Article 267 TFEU confers on the Court of Justice jurisdiction to give preliminary rulings concerning (a) the interpretation of the Treaties and (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union.
+In the present case, it is the courts jurisdiction to rule on the interpretation of the VAT directives which is relevant.
+On the other hand, putting the matter very broadly, the evaluation of the facts of the case, and the application of EU law to those facts, are in general functions of the national courts.
+The relevant principles were summarised more precisely by the Court of Justice in AC ATEL Electronics Vertriebs GmbH v Hauptzollamt Mnchen Mitte (Case C 30/93) [1994] ECR I 2305, paras 16 18: 16.
+On that point, it should be borne in mind that Article [267] of the Treaty is based on a clear separation of functions between the national courts and the Court of Justice, so that, when ruling on the interpretation or validity of Community provisions, the latter is empowered to do so only on the basis of the facts which the national court puts before it (see the judgment in Case 104/77 Oehlschlger v Hauptzollamt Emmerich [1978] ECR 791, point 4).
+It is not for the Court of Justice, but for the national court, to 17. ascertain the facts which have given rise to the dispute and to establish the consequences which they have for the judgment which it is required to deliver (see the judgment in Case 17/81 Pabst & Richarz v Hauptzollamt Oldenburg [1982] ECR 1331, paragraph 12). 18.
+It is, moreover, solely for the national court before which the dispute has been brought, and which must assume the responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of each case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the question which it submits to the court (see the judgments in Case 247/86 Alsatel v Novasam [1988] ECR 5987, paragraph 8, and in Case C 127/92 Enderby v Frenchay Health Authority and Secretary of State for Health [1993] ECR I 5535, paragraph 10).
+As I have explained, the Court of Justice recognised that the reference in the present case raised no new point of law.
+The court however endeavoured to clarify how established principles applied in the circumstances of the case, so far as they emerged from the reference.
+It is particularly unfortunate in those circumstances that, as I have explained, the reference failed to reflect fully either the facts on the basis of which this court must proceed or the issues at the heart of the dispute, with the consequence that the Court of Justice did not fully address those facts or those issues.
+The Court of Justices analysis of the legal issues focused in the reference, on the basis of the facts as it understood them, is not open to question.
+This court is required by section 3(1) of the European Communities Act 1972 (as amended by section 3 of and the Schedule to the European Union (Amendment) Act 2008) to determine any question as to the validity, meaning or effect of any EU instrument in accordance with any relevant decision of the European Court.
+Nevertheless, this courts responsibility for the decision of the present case on the basis of all the relevant factual circumstances, and all the arguments presented, requires it to take into account all the facts found by the tribunal, including those elements left out of account by the Court of Justice, and to consider all those arguments, including those which were not reflected in the questions referred.
+That responsibility under domestic law is also recognised in EU law, as the Court of Justice explained at paragraphs 17 and 18 of its AC ATEL judgment.
+In the exceptional circumstances of this case, this court cannot therefore treat the ruling of the Court of Justice as dispositive of its decision, in so far as it was based upon an incomplete evaluation of the facts found by the tribunal or addressed questions which failed fully to reflect those arguments.
+This court must nevertheless reach its decision in the light of such guidance as to the law as can be derived from the judgment of the Court of Justice.
+In that regard, important aspects of the judgment include the statement that consideration of economic realities is a fundamental criterion for the application of the common system of VAT (para 39), and the statement that, where a transaction comprises a bundle of features and acts, regard must be had to all the circumstances in which the transaction in question takes place (para 60).
+Before turning to consider the present case on that basis, it is necessary to say something about the principal authorities which are relied upon by the parties in support of their contentions.
+The Redrow line of authority
+LMUK seeks support for its contentions from the approach adopted by the House of Lords in Customs and Excise Commissioners v Redrow Group plc [1999] 1 WLR 408; [1999] STC 161.
+That case concerned a sales incentive scheme under which Redrow, a firm of housebuilders, promoted the sale of its houses to prospective customers by arranging for estate agents to value and market the customers existing homes.
+This was done on the basis that the cost would be borne by Redrow, provided the customer bought a Redrow house.
+The House concluded that there was a supply of services by the estate agents to the customers, and simultaneously a supply of services by the estate agents to Redrow.
+Since the latter supply was received by Redrow for the purposes of its business, it followed that Redrow was entitled to deduct the VAT which it had paid as input tax.
+The critical reasoning appears in the speeches of Lord Hope of Craighead and Lord Millett, with which the other members of the Committee agreed.
+Lord Hope said at pp 412 413: Questions such as who benefits from the service or who is the consumer of it are not helpful.
+The answers are likely to differ according to the interest which various people may have in the transaction.
+The matter has to be looked at from the standpoint of the person who is claiming the deduction by way of input tax.
+Was something being done for him for which, in the course or furtherance of a business carried on by him, he has had to pay a consideration which has attracted value added tax? The fact that someone else in this case, the prospective purchaser also received a service as part of the same transaction does not deprive the person who instructed the service and who has had to pay for it of the benefit of the deduction.
+Lord Milletts reasoning was similar, at p 418: The fact is that the nature of the services and the identity of the person to whom they are supplied cannot be determined independently of each other, for each defines the other.
+Where, then, should one begin? One should start with the taxpayer's claim to deduct tax.
+He must identify the payment of which the tax to be deducted formed part; if the goods or services are to be paid for by someone else he has no claim to deduction.
+Once the taxpayer has identified the payment the question to be asked is: did he obtain anything anything at all used or to be used for the purposes of his business in return for that payment? This will normally consist of the supply of goods or services to the taxpayer.
+But it may equally well consist of the right to have goods delivered or services rendered to a third party.
+The grant of such a right is itself a supply of services.
+Applying this reasoning to the present case, LMUK argues that it is in a similar situation to Redrow.
+LMUK pays the redeemers and obtains services in return, including the provision of goods and services to the collectors in fulfilment of its contractual obligations towards them, which it uses for the purposes of its business.
+Following the approach adopted in Redrow, it is therefore entitled to deduct input tax.
+LMUK seeks to draw further support from the decision of the House of Lords in Customs and Excise Commissioners v Plantiflor Ltd [2002] UKHL 33; [2002] 1 WLR 2287; [2002] STC 1132.
+Plantiflor sold horticultural goods by mail order, and contracted with its customers to arrange for the delivery of the goods by Parcelforce and to meet the cost of that delivery, in return for the payment by its customers of a charge for postage.
+It contracted with Parcelforce for the delivery of the goods in return for payment of the postage charge.
+Plantiflor argued that it was not accountable for output tax on the postage charges paid by its customers, since it received those payments merely as the agent of its customers rather than as consideration for any service provided by itself: it maintained that the charges were the consideration for a service supplied to the customers by Parcelforce.
+The majority of the House however rejected that analysis, holding that Plantiflor was acting as a principal and received consideration from its customers for providing them with the service of arranging the delivery of the plants.
+Parcelforce made two supplies: it supplied to the customers the service of delivering the plants they had ordered, and it supplied to Plantiflor the service of delivering the goods which it had sold.
+These authorities were followed by the Court of Appeal in WHA Ltd v Customs and Excise Commissioners [2004] STC 1081.
+WHA was an insurance claims handler which acted on behalf of motor breakdown insurers.
+It entered into agreements with garages under which it authorised and paid for repairs to policyholders cars.
+The issue was whether it could deduct the VAT element of the repair bills as input tax.
+The Court of Appeal held that it could.
+It received a service from the garages, namely the carrying out of the repairs, and it did so for the purposes of its business, since it was discharging its obligations to the insurers.
+Although there were other beneficiaries of the repairs, namely the car owners, that did not prevent the repairs being a supply of services to WHA.
+That decision is currently under appeal to this court.
+The Commissioners contend that the decision of the Court of Justice in the present case is incompatible with that line of authority, and in particular with both the reasoning and the conclusion reached in Redrow, which should therefore not be followed.
+I cannot however find anything in the courts judgment which directly engaged with the issues considered in those cases.
+That indeed is part of the problem with which this court is faced, since the decision of the Court of Appeal in this case was based upon the application of the principles established in Redrow.
+I see no reason to question the correctness of the conclusions reached on the facts of Redrow and Plantiflor (it would not be appropriate to express any view in relation to WHA, since it is under appeal).
+Nor do I question the reasoning.
+On the contrary, the passages which I have cited from the speeches of Lord Hope and Lord Millett appear to me to provide valuable guidance.
+I would at the same time stress that the speeches in Redrow should not be interpreted in a manner which would conflict with the principle, stated by the Court of Justice in the present case, that consideration of economic realities is a fundamental criterion for the application of VAT.
+Previous House of Lords authority had emphasised the importance of recognising the substance and reality of the matter (Customs and Excise Commissioners v Professional Footballers Association (Enterprises) Ltd [1993] 1 WLR 153, 157; [1993] STC 86, 90), and the judgments in Redrow cannot have been intended to suggest otherwise.
+On the contrary, the emphasis placed upon the fact that the estate agents were instructed and paid by Redrow, and had no authority to go beyond Redrows instructions, and upon the fact that the object of the scheme was to promote Redrows sales, indicates that the House had the economic reality of the scheme clearly in mind.
+When, therefore, Lord Hope posed the question, Was something being done for him for which, in the course or furtherance of a business carried on by him, he has had to pay a consideration ?, and Lord Millett asked, Did he obtain anything anything at all used or to be used for the purposes of his business in return for that payment?, those questions should be understood as being concerned with a realistic appreciation of the transactions in question.
+Reflecting the point just made, it is also necessary to bear in mind that consideration paid in respect of the provision of a supply of goods or services to a third party may sometimes constitute third party consideration for that supply, either in whole or in part.
+The speeches in Redrow should not be understood as excluding that possibility.
+Economic reality being what it is, commercial businesses do not usually pay suppliers unless they themselves are the recipient of the supply for which they are paying (even if it may involve the provision of goods or services to a third party), but that possibility cannot be excluded a priori.
+A business may, for example, meet the cost of a supply of which it cannot realistically be regarded as the recipient in order to discharge an obligation owed to the recipient or to a third party.
+In such a situation, the correct analysis is likely to be that the payment constitutes third party consideration for the supply.
+It is also important to bear in mind that decisions about the application of the VAT system are highly dependent upon the factual situations involved.
+A small modification of the facts can render the legal solution in one case inapplicable to another.
+I would therefore hesitate to treat the judgments in Redrow as laying down a universal rule which will necessarily determine the identity of the recipient of the supply in all cases.
+Given the diversity of commercial operations, it may not be possible to give exhaustive guidance on how to approach the problem correctly in all cases.
+Auto Lease Holland
+The Commissioners on the other hand rely upon the decision of the Court of Justice in Auto Lease Holland BV v Bundesamt fr Finanzen (Case C 185/01) [2003] ECR 1 1317; [2005] STC 598.
+That case was concerned with fuel management agreements between Auto Lease, a vehicle leasing company, and its lessees, under which a lessee could fill up his vehicle in the name and at the expense of Auto Lease, using a credit card issued by a credit card company, DKV.
+The lessee paid a monthly sum to Auto Lease based on his likely consumption of fuel, with a balancing sum being paid at the end of the year.
+Auto Lease contended that it was entitled to deduct the VAT paid on the fuel as input tax, on the basis that it was the recipient of the supply of the fuel.
+The Court of Justice rejected the contention.
+It noted in the first place that the expression "supply of goods" was defined by article 5(1) of the Sixth Directive as meaning the transfer of the right to dispose of tangible property as owner.
+The court continued: 34.
+It is common ground that the lessee is empowered to dispose of the fuel as if he were the owner of that property.
+He obtains the fuel directly at filling stations and Auto Lease does not at any time have the right to decide in what way the fuel must be used or to what end. 35.
+The argument to the effect that the fuel is supplied to Auto Lease, since the lessee purchases the fuel in the name and at the expense of that company, which advances the cost of that property, cannot be accepted.
+As the Commission rightly contends, the supplies were effected at Auto Lease's expense only ostensibly.
+The monthly payments made to Auto Lease constitute only an advance.
+The actual consumption, established at the end of the year, is the financial responsibility of the lessee who, consequently, wholly bears the costs of the supply of fuel. 36.
+Accordingly, the fuel management agreement is not a contract for the supply of fuel, but rather a contract to finance its purchase.
+This decision does not appear to me to assist the Commissioners in the present case.
+Although the Court of Justice referred to it in its judgment, it did so in the context of identifying the recipient of a supply of goods in a situation where redemption goods are provided by a redeemer to a collector.
+As the court held, the recipient of that supply is the collector.
+That conclusion is not in dispute in this appeal: indeed, it was not in dispute before the Court of Justice.
+The present case
+The only issue which this court has to determine is whether LMUK is entitled to deduct as input tax the VAT element of the payments which it makes to the redeemers.
+As the Court of Justice has explained many times, VAT is chargeable on each transaction in the production and distribution process only after deduction of the amount of VAT borne directly by the costs of the various price components.
+The court has consistently stressed that the deduction system is meant to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities, and that the VAT system consequently ensures complete neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are subject in principle to VAT (see for example the statement of the Grand Chamber to that effect in Halifax plc & Others v Customs and Excise Commissioners (Case C 255/02) [2006] Ch 387 para 78).
+The right to deduct VAT, as an integral part of the VAT scheme, has been described by the court as a fundamental principle underlying the common system of VAT, which in principle may not be limited (see, for a recent statement to that effect, Commissioners for Her Majestys Revenue and Customs v RBS Deutschland Holdings GmbH (Case C 277/09) [2010] ECR I 13805, paras 38 39).
+The consequence of the deduction of input VAT is that the tax is charged, at each stage in the production and distribution process, only on the added value and is ultimately borne only by the final consumer (see, for a recent statement to that effect, Lebara Ltd v Revenue and Customs Commissioners (Case C 520/10) [2012] STC 1536, paras 24 25).
+In the present case, the Court of Justice focused upon the relationship between redeemers and collectors.
+Since collectors are usually final consumers of the goods and services provided by redeemers, the principle described in paragraph 75 would suggest, at first sight, that final taxation should take place at the stage of that supply.
+Since no monetary consideration is paid by the collector in so far as the goods or services are exchanged for points, but a payment is subsequently made by LMUK which is based on the value of the points as agreed with the redeemer, it would be possible, if these aspects of the present case were considered in isolation, to conclude that that payment should be regarded as third party consideration for that supply, and taxed accordingly.
+As I have explained, however, there is another dimension to the case, which the Court of Justice was not requested to consider, and which it therefore left out of account.
+The appeal before this court is concerned with the claim of LMUK, a taxable person, to deduct input tax.
+LMUKs business is of an unusual character.
+Through the Nectar scheme, it provides collectors with a contractual right to obtain goods and services from redeemers in exchange for points.
+It is common ground before this court that that is a taxable supply, and that the taxable amount is the whole of the consideration which is received by LMUK.
+The counterpart of the right supplied to collectors is an obligation on the part of LMUK to procure that redeemers provide goods and services in exchange for points.
+The payments made to redeemers constitute the cost of fulfilling that obligation, and are therefore a cost of LMUKs business.
+Applying the principles summarised in paragraphs 73 and 74 above, VAT should be chargeable on LMUKs taxable supplies only after deduction of the VAT borne by LMUKs necessary costs.
+The most obvious of those costs, as I have explained, is the cost of securing that goods and services are provided to collectors in exchange for their points: that is to say, the payments made by LMUK to the redeemers.
+The principles summarised in paragraphs 73 and 74 therefore indicate that LMUK should be authorised to deduct from the VAT for which it is accountable the VAT charged by the redeemers, so that it accounts for VAT only on the added value for which it is responsible.
+Only in that way will VAT be completely neutral as regards LMUK.
+It is implicit in that approach that the transaction between a redeemer and LMUK involves a taxable supply by the former to the latter.
+That analysis appears to me to be consistent with economic reality.
+LMUK carries on a genuine business for its own benefit.
+It issues the points in its own name and on its own behalf: it is not a mere cipher for the sponsors.
+As a matter of economic reality, the payments which it makes to redeemers are an essential cost of its business.
+Its business model is to sell the right to receive goods and services, pay redeemers to provide the goods and services, and derive a profit from the difference between its income from the sponsors and its expenditure on the redeemers.
+There is a legal relationship between the redeemer and LMUK pursuant to which there is reciprocal performance.
+In accepting points, which have no inherent value, in exchange for goods or services, the redeemer is acting in a manner which is only explicable because of its agreement with LMUK, under which LMUK will pay it for doing so.
+LMUK pays it for doing so because its business is dependent on redeemers accepting points in exchange for the provision of goods and services.
+The only economically realistic explanation of LMUKs behaviour is the value to LMUK itself of the redeemers acceptance of points in exchange for the provision of goods and services.
+In these circumstances, it can in my view be said that the remuneration received by the redeemer represents the value to LMUK of the service which the redeemer provides (cf Tolsma v Inspecteur der Omzetbelasting Leeuwarden (Case C 16/93) [1994] STC 509, para 14; First National Bank of Chicago v Customs and Excise Commissioners (Case C 172/96) [1999] QB 570; [1998] STC 850, paras 26 to 29).
+The approach described in the foregoing paragraphs is consistent with the fundamental principle, as the Court of Justice has described it, that a taxable person is entitled to deduct the VAT payable in the course of his economic activities.
+The alternative approach described in paragraph 76 is not.
+This approach is also consistent with the application of the guidance given in Redrow.
+If one asks whether, when the redeemer accepts points in exchange for the provision of goods or services to a collector, something is being done for LMUK for which, in the course or furtherance of its business, it has to pay a consideration, the answer seems to me to be in the affirmative, for the reasons given in paragraph 80.
+If one asks, what about taxation of the supply to the final consumer, the answer is that the Commissioners have decided to treat the issue of the points to the collectors that is to say, the award of the right to obtain goods and services from redeemers as a taxable supply.
+The taxable amount is agreed to be the whole of the consideration received by LMUK for the grant of those rights: an amount which exceeds the value received by the redeemers from LMUK when the rights are exercised.
+No question arises in this appeal as to whether that tax treatment is correct.
+Because of the principle of tax neutrality, however, that tax treatment has implications for the question in issue.
+As the Court of Appeal pointed out, if the provision of goods or services by redeemers were treated as a taxable supply to the collector (other than to the extent to which any monetary consideration might be paid by the collector), the tax authorities would receive not only VAT on the amount received by LMUK for supplying the right to receive those goods and services, but also VAT on the amount which LMUK must pay to satisfy that right.
+If, on the other hand, the consideration paid by LMUK to the redeemers is regarded as the consideration for the supply of a service to LMUK (a service which encompasses the provision of goods and services to collectors), the tax authorities will still receive VAT from LMUK on the difference between the value of the supplies which it makes in the course of its business (ie its receipts from the supply of the right to receive such goods and services) and the value of the supplies which it receives for the purposes of that business (ie the cost to LMUK of satisfying that right).
+The tax authorities will thus recover VAT on the value added by the taxable transactions entered into by LMUK, taking the issue and redemption of points as a whole.
+That conclusion is in accordance with the basic principle of VAT.
+Conclusion
+For these reasons, I would be inclined to uphold the decision of the Court of Appeal and dismiss the appeal.
+The parties should however be afforded an opportunity to make written submissions on the form of order to be made.
+LORD HOPE
+I think that it was a pity that a preliminary ruling was sought in this case.
+I agree with Chadwick LJs observation in the Court of Appeal that the real issue is not one as to the interpretation of Community legislation or as to the effect to be given to judgments of the Court of Justice, but rather as to how principles that are not themselves in doubt should be applied to particular facts: Loyalty Management UK Limited v Commissioners for HM Revenue and Customs [2007] EWCA Civ 938, [2008] STC 59, para 66.
+The CJEU seems to have taken a similar view.
+It did not seek an opinion from the Advocate General before it proceeded to judgment, indicating that in its view the case raised no new point of law.
+This places the reader at a disadvantage, as its judgment lacks the depth of reasoning which a judgment informed by an opinion would have provided.
+It is quite rare for the domestic court to find itself in this position.
+The recent case of OBrien v Ministry of Justice (Case C393/10) [2012] 2 CMLR 25 is an excellent example of the guidance that the CJEU normally gives on issues of EU law and there are, of course, many more.
+I also think that the questions that were referred, although agreed to by the parties and approved by the House of Lords, tended to obscure what became the real issue when the case was argued in Luxembourg.
+For this reason the CJEU can hardly be blamed for not addressing that issue directly when it was conducting its analysis.
+The situation was also complicated by the fact that in the case of Baxi Group Ltd (Case C 55/09), which was referred by the House to the CJEU at the same time, there was a separate set of questions designed to fit the facts of that case.
+The CJEU analysed the Baxi Group Ltd case separately in the same judgment.
+Its analysis of the facts of that case may have influenced its analysis of the present case to the disadvantage of its treatment of the case for LMUK.
+The issue
+Chadwick LJ said that the issue in the present case was whether there was a supply of redemption services by the redeemer to LMUK for the purposes of VAT: para 33.
+This is how LMUK put its case in paragraph 29 of its written observations to the CJEU: LMUKs analysis is that the redeemers made supplies to both LMUK (redemption services) and the collectors (rewards) and that the recipient in either case can deduct VAT which it pays, subject to the normal rules.
+Only LMUKs analysis results in the VAT being deductible (subject to the normal rules) by the person who has actually paid the VAT and ensures that the UK Government collects VAT on the amount of the consideration actually paid by the final consumer. [emphasis added] The words both and in either case in this analysis are important.
+They directed attention to the fact that LMUKs argument was that the redeemers were making supplies in both directions.
+The Revenues argument, on the other hand, was encapsulated in question (2)(b) of the reference (see para 29, above).
+It asked whether the provisions of articles 14, 24 and 73 of Council Directive 2006/112/EC of 28 November 2006 were to be interpreted, where payments were made by the promoter to the redeemers, such that those payments were to be characterised as consideration solely for the supply of goods and/or services by the redeemers to the customers.
+In paragraph 9 of its written observations the Revenue said that the correct analysis was that the relevant supplies were made by the redeemers to the collectors, and that the consideration given by LMUK to the redeemers was third party consideration for those supplies.
+The questions in paragraphs (2) (c) and (3) of the reference then asked whether the consideration was in part for the supply of services by the redeemers to LMUK and in part for supplies by the redeemers to the customers and, if so, what the criteria are for an apportionment.
+Their inclusion in the reference was unfortunate, as they tended to divert attention from the way the case was presented when it reached the CJEU.
+This was not, in the event, an analysis which was argued for by either party.
+It was not LMUKs case by that stage that the consideration that it paid to the redeemers was in part for the supply of services by the redeemers to it and in part for the supply of goods and services to the customers, and that the consideration could or should be apportioned accordingly.
+A question which directed attention to the argument that the redeemers made supplies both to LMUK and the collectors, and that the recipient in either case could deduct the VAT which it paid on the consideration for the supply, was not included in the reference.
+In his submissions to this court Mr Milne QC renewed the case which he had presented to the CJEU.
+He said that apportionment was not what his clients wanted, and emphasised that it had not been a live issue before the tribunal.
+LMUKs case, looked at from its point of view (see Customs and Execise Commissioners v Redrow Group plc [1999] 1 WLR 408, 412; [1999] STC 161, 166), was that services were supplied to it by the redeemers for which it paid consideration and, that as the payment it made to the redeemers attracted VAT, it was entitled to deduct input tax on that amount.
+The scheme required the co operation of both the sponsors and the redeemers.
+The redeemers were accountable for the VAT payable on the consideration which they received both for their supplies to the customers and for the services provided by them to LMUK.
+The customers, assuming that they were traders (as some of them were), and LMUK were both entitled to the benefit of the doctrine of fiscal neutrality.
+In para 33 of its judgment the Court said that the essence of the questions that were put to it in LMUKs case was whether payments made by LMUK to the redeemers must be considered as third party consideration for supplies to or for the benefit of customers (which was the Revenues case), or as the consideration for the supply of services made by the redeemers for the benefit of LMUK.
+This was an incomplete appreciation of the alternative analyses on which the Courts interpretation of the EU legislation was sought.
+The argument for the Revenue was that LMUKs ability to deduct the input tax on the consideration which it paid to the redeemers for the services that they provided for its benefit was excluded by the fact that the payments that it made to the redeemers were third party consideration for the goods or services provided by the redeemers to the customers.
+LMUKs argument was that the treatment of the consideration passing between it and the redeemers should be considered separately from that passing between the redeemers and the customers.
+A summary of the observations submitted to the CJEU is set out in paras 34 to 37 of the judgment.
+The Revenues case is appropriately summarised in para 36, that the payments made by LMUK to the redeemers must be regarded as third party consideration for supplies of goods and services to the customers.
+LMUKs case is summarised in para 34.
+The summary is in these terms: In Case C 53/09, LMUK argues that the payments which it made to the redeemers constitute the consideration for services supplied to it by the redeemers.
+Those services, it submits, consist of various contractually agreed services, including the redeemers undertaking to supply goods or services to customers without charge or at a reduced price.
+This formulation takes the point made by LMUK in paragraph 29 of its written observations.
+But it does not recognise the argument that the redeemers made supplies both to the collectors and to LMUK, and that the recipient in either case could deduct the VAT which it paid.
+The judgment
+The Courts reply to these observations begins in para 38.
+The obvious point is made in that paragraph that the system of VAT involves the application of a general tax on consumption which is exactly proportional to the price of the goods and services.
+In para 39 of the judgment reference is then made to economic realities as a fundamental consideration for the application of the system.
+Two examples are given: first, the meaning of place of business and, secondly, the identification of the person to whom goods are supplied.
+The second example is said to be illustrated by Auto Lease Holland BV v Bundesamt fr Finanzen (Case C 185/01) [2003] ECR I 1317.
+Having asked itself what the nature was of the transactions under the schemes at issue, the Court said in para 42 that the economic reality was that loyalty rewards were supplied by the redeemers to the customers.
+So far as it goes, this point was not in dispute.
+But no mention is made of the effect of applying the economic reality test to the argument that there was also a supply of services by the redeemers to LMUK.
+Here again the significance of the way LMUK put its case in paragraph 29 of its written observations, where the word both was used, appears to have been overlooked.
+In para 43 of its judgment the Court asks itself whether the supply of the rewards constituted a supply of goods or services effected for consideration by a taxable person.
+The conclusion is then drawn in para 49 that the redeemers were supplying goods and services to the customers within the meaning of articles 5(1) and 6(1) of the Sixth Directive.
+This is unsurprising.
+But it does not advance the argument, as it was already common ground between the parties.
+In para 50 the Court asks itself the question whether these supplies were carried out for consideration.
+In para 56 the point is made that article 11.A(1)(a) of the Sixth Directive provides that the consideration may be obtained from a third party.
+There then follows para 57, which is in these terms: In that regard, it is evident from the order for reference in Case C 53/09 that the exchange of points by the customers with the redeemers gives rise to the making of a payment by LMUK to those redeemers.
+The amount of that payment is the sum total of the charges, which are of a fixed amount for each point redeemed against all or part of the price of the loyalty reward.
+In that context, it must be considered that, as maintained by the United Kingdom Government, that payment corresponds to the consideration for the supply of the loyalty rewards. [emphasis added]
+At first sight the sentence which I have emphasised determines this appeal in favour of the Revenue.
+But the proposition which I have emphasised does not include the word solely.
+Nor is any mention made of the point that LMUK made in paragraph 29 of its observations, where the word both was used: that the redeemers were supplying services to LMUK too, and that the payments which LMUK made to the redeemers could also be seen as consideration for services supplied to it by the redeemers.
+If that proposition was being rejected at this stage on the ground that it was not in accordance with the economic reality, this is not clearly stated.
+Nor is any reason given here for its rejection.
+In paras 58 to 63 of the judgment there is an analysis of the issues raised by Baxi Group Ltd (Case C 55/09), where it was contended by Baxi that the consideration for the payment by it to the redeemer did not correspond to a supply of goods but to a complex advertising service under which the supply of loyalty rewards to customers was one of a number of services.
+The conclusion that the Court drew from its analysis of the facts of that case, assisted by a question directed to this issue, was that the payment could be divided into two elements, each of which corresponded to a separate service.
+This was because it was possible to identify a profit margin consisting of the difference between the retail sale price of the loyalty rewards to the customer paid by Baxi and the price at which those rewards were purchased by the redeemer.
+Its conclusion was that the payment was the consideration for two separate supplies.
+It was in part consideration, paid by the third party Baxi, for a supply of goods to the customers and in part consideration for the supply of services to Baxi.
+The answer to the question how, in view of that conclusion, the payment was to be apportioned between these two supplies was given in para 63.
+The judgment then sets out the conclusion that, in contrast to its conclusion in Baxi, the Court reached in LMUKs case.
+It is set out in para 64 as follows : By contrast, in Case C 53/09, LMUK has, in both its written and oral observations, asserted that the payments which it makes to the redeemers are not the consideration for two or more separate [supplies].
+It is, however, for the referring court to determine whether that is the case.
+The first sentence is a correct statement as far as it goes.
+It distinguished LMUKs case from that of Baxi.
+But, for the reasons already mentioned, it does not address the question that needed to be answered.
+Here again, as in para 57 of its judgment, the Court seems to have overlooked the point that LMUK made in paragraph 29 of its observations that services were also supplied to LMUK by the redeemers in return for consideration paid by LMUK.
+If that proposition was being rejected, once again this is not clearly stated.
+The question which is then sent back to the referring court is not in point.
+LMUK was not asserting, and did not seek to argue before us, that the payments made to the redeemers were the consideration for two or more separate supplies.
+Lastly, there are the answers that the Court gives in para 65 to the questions referred in each case.
+The answer to the questions referred in LMUKs case is as follows: [P]ayments made by the operator of the scheme concerned to redeemers who supply loyalty rewards to customers must be regarded as being the consideration, paid by a third party, for a supply of goods to those customers or, as the case may be, a supply of services to them.
+It is, however, for the referring court to determine whether those payments also include the consideration for a supply of services corresponding to a separate [supply].
+This answer brings together the points that the Court made in paras 57 and 64.
+Here again, it respectfully seems to me, the point that is really in issue in this case is not answered.
+The question sent back to the referring court must be taken to be the same as that which the Court set out in para 64.
+An affirmative answer to it would lead to the making of an apportionment of the consideration between the two separate services.
+But LMUK is not contending that there should be an apportionment.
+The CJEU then sets out a proposition for which LMUK was not contending and did not contend when the case came back to this court.
+The response
+We are, of course, obliged to treat any question as to the meaning or effect of any EU instrument as a question of law which must be determined as such in accordance with the principles laid down by and any relevant decision of the CJEU: section 3 of the European Communities Act 1972, as substituted by the European Union (Amendment) Act 2008, section 3 and the Schedule, Part 1.
+And where a question is referred to the CJEU for a preliminary ruling, it is our duty to give effect to the Courts ruling as to how the instrument must be interpreted according to the principles of EU law.
+We must be loyal to our Treaty obligations.
+But I do not read the ruling contained in this judgment as determining how the principles that it sets out are to be applied to the facts of this case.
+That is our responsibility.
+The problem that we face in looking to the judgment for guidance is that it does not say that the payments made by the promoters to the redeemers are to be characterised solely as consideration for the supplies by the redeemers to the customers.
+Nor does it say that the proposition that the redeemers made supplies in both directions and that the recipients of those supplies could deduct VAT on the payments they made must be rejected.
+That, as I understand the competing arguments which were advanced before us, is what is really at issue.
+In this situation it must be treated as an issue of fact for us to decide.
+It is worth recalling that in para 38 of his judgment in the Court of Appeal Chadwick LJ said that the passages which he had quoted from the speeches in Customs and Excise Commissioners v Redrow Group Plc provided clear authority for the propositions (a) that there is no reason why, in a VAT context, a supplier (S) may not be treated as making, in the same transaction, both a supply of services to one person (P1) and a supply of different services to another person (P2); and (b) that, in addressing a claim for input tax credit by P2, to whom services have been supplied in these circumstances, the relevant question are (i) did P2 make a payment to S, (ii) was that payment consideration for services supplied to P2 and (iii) were those services used or to be used in the course of a business carried on by P2.
+Having considered the speeches in Customs and Excise Commissioners v Plantiflor Ltd [2002] 1 WLR 2287; [2002] STC 1132 and the judgment of Neuberger LJ in WHA Ltd and another v Customs and Excise Commissioners [2004] STC 1081, Chadwick LJ observed in para 51 that the argument that found favour with Lindsay J in the present case which was that, in a case where it was possible to identify different supplies to different recipients in the same transaction, only one could be the relevant supply for VAT purposes was not self evident.
+His own conclusion was to the contrary.
+Mr Milne invited us to endorse that conclusion.
+As he put it, the fact that there was a supply to the customers did not eliminate the possibility of their having also been the supply of a service to LMUK.
+The ruling that has been obtained from the CJEU does not, as I have sought to show, address this issue.
+The question then is whether the judgment lays down any principles which are determinative of this issue.
+Mrs Whipple QC for the Revenue said that the question in this case all the way up has been: to whom was the supply made? She submitted that it must be taken from what the Court said in para 39 of its judgment that this question must be answered by considering the economic realities, as this was a fundamental criterion for the application of the system of VAT: Customs and Excise Commissioners v DFDS A/S (Case C 260/95) [1997] 1 WLR 1037, para 23 and Planzer Luxembourg Srl v Bundeszentralamt fr Steuern (Case C 73/06) [2007] ECR I 5655, para 43.
+The judgment in Auto Lease Holland [2003] ECR I 1317, paras 35 and 36 showed how this test was to be applied to identify the person to whom the goods are supplied.
+The case of Redrow was wrongly decided.
+The economic realities of the case could show that the supply was to a third party, not to the person who paid the consideration.
+That was the position in this case.
+The problem with this approach is that it does not exclude the possibility that there may, as a matter of economic reality, be two or more supplies within the same transaction.
+Mrs Whipple said that one must start with the economic reality, and I have no difficulty in accepting that.
+But what the economic reality is in a given case must surely be a question of fact for the domestic court.
+The statement that the Court makes in para 42 of its judgment that the economic reality is that the loyalty rewards are supplied by the redeemers to the customers is only part of the story.
+This is shown by the fact that the Court said in para 64 that it was for the referring court to determine whether the payments that LMUK makes to the redeemers were the consideration for two or more separate services.
+Presumably the test which it would have to apply, if it were to address this question, would be to consider the economic realities.
+If that is a question which it is proper to send back to the referring court, why is it not open to it to examine the question that the Court itself did not answer whether it is possible, upon consideration of the economic realities, to identify two different supplies by the redeemers to two different recipients in the same transaction?
+If, as the Court of Appeal held, it is possible to identify different supplies by the redeemers to different recipients in the transaction by which LMUK pays consideration to the redeemers, what then? It is not easy to see why the economic realities test should exclude the possibility there can be more than one relevant supply for VAT purposes.
+It seems to me that the judgment leaves it open to this court to determine whether, in fact and as a matter of economic reality, the redeemers may not be treated as having made, in the same transaction, both a supply of services to the customers and a supply of different services to LMUK or, as LMUK put its case in paragraph 29 of its written observations, the redeemers made supplies both to LMUK (redemption services) and to the customer (rewards).
+For the reasons the Court of Appeal gave, I would answer that question in the affirmative.
+Mrs Whipple argued strongly to the contrary.
+She submitted that it followed from the CJEUs judgment that Customs and Excise Commissioners v Redrow Group plc, which the Court of Appeal applied to the facts of this case, was wrongly decided.
+But I am unable to find anything in the CJEUs judgment that drives us to that conclusion.
+The only statement of principle which it contains is that consideration of economic realities is a fundamental criterion for the application of VAT: para 39.
+I do not see this as undermining the way the questions of fact were determined in Redrow or the conclusion by the appellate committee that, as the services in respect of which Redrow claimed input tax deductions were supplied for a consideration paid to it in return, it was entitled to the benefit of the deduction.
+I am not persuaded that Redrow was wrongly decided.
+I acknowledge, however, that some of the reasoning in Redrow needs to be adjusted in the light of later authority.
+I would not wish to alter what I said at [1999] 1 WLR 408, 412H 413A: was something being done for the person claiming the deduction for which, in the course or furtherance of a business carried on by him, he has had to pay a consideration which has attracted value added tax? But I think that Lord Millett went too far at p 418 G when he said that the question to be asked is whether the taxpayer obtained anything anything at all used or to be used for the purposes of his business in return for that payment.
+Payment for the mere discharge of an obligation owed to a third party will not, as he may be taken to have suggested, give rise to the right to claim a deduction.
+A case where the taxpayer pays for a service which consists of the supply of goods or services to a third party requires a more careful and sensitive analysis, having regard to the economic realities of the transaction when looked at as a whole.
+It may lead to the conclusion that it was solely third party consideration, or it may not.
+Conclusion
+For the reasons I have given, do I not see the CJEUs judgment as precluding a finding in LMUKs favour that the redeemers should be treated as having made, in the same transaction and as a matter of economic reality, both a supply of goods and services to the customers and a supply of different services to LMUK, and that LMUK is entitled to input tax credit on the consideration in return for which those different services were supplied to it.
+In my opinion the only conclusion that can properly and fairly be reached in this case is that the Court of Appeals decision should be affirmed.
+For these reasons, and for the further reasons given by Lord Reed, I would make the order that he proposes.
+LORD WALKER
+I am doubtful whether I can usefully add anything to the thorough and closely reasoned judgments of Lord Hope and Lord Reed, with which I am in full agreement.
+But as this Court is divided I think it right to restate, as briefly as I can, what I see as the essential reasons for dismissing this appeal.
+Anyone with even a passing acquaintance with value added tax is familiar with the basic concept of the fiscal neutrality of a chain of transactions which, however short or long, leaves the burden of the tax on the ultimate consumer.
+In BLP Group Plc v Customs & Excise Commissioners (Case C 4/94) [1996] 1 WLR 174, 190, [1995] ECR I 983, 993, [1995] STC 424, 430, para 30, the Advocate General (Lenz) referred to . an ideal image of chains of transactions . intended to attach to each transaction only so much VAT liability as corresponds to the added value accruing in that transaction, so that there is to be deducted from the total amount the tax which has been occasioned by the preceding link in the chain.
+In a simple chain (a wholly linear series of transactions) each transaction in the chain must be considered separately to determine what output tax is payable and what credit is available for input tax.
+But in developed economies wholly linear series of transactions are relatively unusual.
+Increasingly, businesses are organised so as to rely on subcontracting and outsourcing.
+Consumers are increasingly encouraged to obtain packages of goods and services put together by entrepreneurs.
+Many marketing schemes (such as that run by LMUK during the period now under consideration) operate through a construct of contractual relationships of some sophistication.
+It is a construct that is more like a web than a chain.
+In cases of that sort it is still necessary, in determining the proper amounts of output tax and input tax, to look separately at different parts of the web of transactions.
+But in determining the economic reality it is also necessary to look at the matter as a whole.
+This Court was not shown any authority establishing that a payment by A to B cannot be both consideration for a service supplied to A by B, and (as third party consideration) an element of the consideration paid for a supply by B to C (in this case, the collector, who is usually, but not always, also the final consumer).
+That negative proposition was adopted by Lindsay J in the Chancery Division in his once and one way only theory: [2007] STC 536, paras 58 and 76 to 80.
+In support of it he relied on EC Commission v Germany (Case C 427/98), [2002] ECR I 8315, [2003] STC 301.
+That was a case about a simpler promotional scheme for reduction of the retailers price for goods on presentation of a coupon distributed by the manufacturer to potential retail customers.
+But the Court of Justices decision related to the amount of tax on the supply by the retailer to the customer.
+It did not rule that the manufacturer must suffer a loss of input tax credit when it reimbursed the retailer, and it would have been inconsistent to have made such a ruling.
+Like Lord Hope and Lord Reed I consider that Customs & Excise Commissioners v Redrow Group Plc [1999] 1 WLR 408 and Customs & Excise Commissioners v Plantiflor Ltd [2002] 1 WLR 2287 were correctly decided, and are still good law.
+Lord Milletts unqualified language (anything anything at all) at p 418 may be capable of being misunderstood, but in context (including his explanation at p 417 of BLP Group Plc v Customs & Excise Commissioners) it must be understood as referring to anything that can properly be regarded as a taxable supply.
+Mrs Whipple QC suggested in her oral submissions that Plantiflor was an exception of a relatively small and insignificant category of cases of delivery.
+But if that expression is taken, in the common modern usage, to cover the delivery of a variety of packages of outsourced services, it can be seen as more than a small or insignificant category.
+The Court of Justice did not discern any significant issue of EU law arising on this case.
+The issue of economic reality is for the national court.
+I was one of the Law Lords who, five years ago, directed a reference to the Court of Justice, but with hindsight I recognise that it was unnecessary, and that it would have been better not to have made a reference.
+For these reasons, and for the much fuller reasons stated by Lord Hope and Lord Reed, I would make the order proposed by Lord Reed.
+LORD CARNWATH (with whom Lord Wilson agrees) (dissenting)
+Luxembourg has spoken
+In the light of the CJEU judgment, I would have regarded the appeal as bound to succeed.
+With respect to my colleagues, I find it difficult to see how their contrary view can be compatible with our responsibilities under the European Communities Act 1972.
+Criticism is made in the majority judgments of the form of the questions referred to the court, and even of the fact that a reference was made at all.
+I find this very surprising.
+The decision to refer was made by a panel of the House of Lords (Lords Hoffmann, Walker, and Mance, one of whom is a member of the present panel), following an oral hearing on 3 April 2008.
+Although there is no formal record of the reasons, they can be inferred from the Commissioners request, which pointed to an apparent conflict between the decision of the House in Redrow and the CJEU judgment in Auto Lease.
+The questions were then agreed by the parties in the normal way, submitted to the House on 30 June 2008, and adopted for the purpose of the reference.
+They were substantially in the form of the draft appended to in the Commissioners petition of appeal.
+LMUKs notice of objection, dated 16 November 2007, and signed by the counsel for LMUK (who had appeared successfully in the Court of Appeal), challenged the need for a reference; but LMUK did not take material issue with the form of questions proposed, then or later.
+We must assume that they were thought by all, including the members of the House and LMUK, to be the questions which needed answers in order to determine the appeal.
+I do not see how we can, properly or responsibly, go behind either the decision of the House to make the reference, or the questions which were then approved with LMUKs consent.
+Nor, still less (with respect to Lord Reed), do I believe that it is appropriate or fair for us now to decide that there were other relevant facts , necessary for the determination, but which, through oversight of ourselves and the parties, were not drawn to the attention of the court; and, further, that the true issues were not questions of law at all, so that we are free to redetermine them for ourselves as questions of fact, without regard to the CJEUs conclusions on them.
+Those are to me entirely novel and controversial propositions, on which at the very least I would have wished to hear submissions from the parties.
+As it happened, there was a significant delay between the agreement of the questions in June 2008 and the formal order making the reference on 15 December 2008, which was registered by the CJEU on 6 February 2009.
+This delay, as I understand it, was caused principally by the decision to link this case with the Baxi case.
+The history is summarised in a letter to the judicial office dated 19 February 2009 from LMUKs solicitors.
+In that letter, they complained of the delay and of the handling of the case by the office, but they made no criticism of the form of the questions.
+At some point, certainly before May 2009, new counsel (Mr Milne QC) was instructed.
+The hearing in the CJEU took place in January 2010.
+If at any time during that period LMUKs representatives had formed the view that the questions were defective in some way, they had plenty of time to seek to amend or supplement them.
+The real issue two supplies or one
+Lord Hope (para 89 above) defines what he calls the real issue by reference to a paragraph in LMUKs written observations to the CJEU: LMUKs analysis is that the redeemers made supplies to both LMUK (redemption services) and the collectors (rewards) and that the recipient in either case can deduct VAT which it pays, subject to the normal rules.
+Only LMUKs analysis results in the VAT being deductible (subject to the normal rules) by the person who has actually paid the VAT and ensures that the UK Government collects VAT on the amount of the consideration actually paid by the final consumer. (para 29, Lord Hopes emphasis) Lord Hope attaches importance to the words both and in either case, as showing the nature of LMUKs case.
+It was not that the consideration was to be apportioned between the two forms of supply; rather that, following Redrow, and looking at the matter solely from LMUKs own point of view (regardless of the collectors position), the whole consideration was paid for services supplied to LMUK, which was accordingly entitled to deduct input tax on the whole amount.
+If this was seen by LMUK as the real issue, it is strange that they took no steps to ensure that it was adequately reflected in the submitted questions.
+In LMUKs notice of objection to HMRCs petition, the sole issue was said to be whether the supplies were made to LMUK notwithstanding that third parties, namely the Collectors, also benefited de facto from the making of such supplies.
+The Commissioners suggested alternative of apportionment was said to have no merit in it.
+Against that background, I can only infer that the omission of a question directed specifically to Chadwick LJs formulation was a matter of deliberate choice, presumably because it was thought unlikely to succeed in Europe.
+As Lord Hope recognises, it is hard to criticise the CJEU for failing to answer an issue which had not been raised in the questions referred to it, even if mentioned in some of the subsequent observations.
+I note in passing Mr Milnes separate complaint about the lack of any specific reference, either in the questions, or in the Courts response, to the issue of deduction of input tax as such.
+I found this difficult to understand.
+Since deduction of input tax was what the case had been about from the outset, it is fanciful to suggest that there was any doubt in anyones mind of the context in which the questions were asked.
+It was referred to in terms in the European Commissions observations (see below), and the Court began its judgment by accurately summarising the course of proceedings below, beginning with LMUKs claim to deduct input VAT on its payments of service charges to the redeemers (para 13).
+Absence of an Advocate Generals Opinion
+In agreement with Lord Hope, I think it was unfortunate that there was no Advocate Generals Opinion in this case.
+This is by no means unusual.
+Published figures show that it happens in more than 40% of the cases decided by the court.
+But those figures say nothing about the relative importance of the various cases, or the level of the court from which they have been referred.
+Article 20, paragraph 5, of the CJEU Statute provides: Where it considers that the case raises no new point of law, the Court may decide, after hearing the Advocate General, that the case shall be determined without a submission from the Advocate General.
+I can understand that this case was thought to raise no new point of law, as such.
+The underlying principles had been discussed in many previous judgments.
+However, it was a reference by the highest court in this country.
+It should have been clear from the judgments below, and the submissions, that it had raised serious differences as to the correct application of those principles, including questions as to the authority of the leading House of Lords decision in the light of subsequent European authority.
+The court itself does not as a matter of practice comment directly on domestic cases, but the Advocate General may have more flexibility in that respect, and more opportunity to look at the issues in a wider context.
+Experience shows that the Advocate Generals Opinion can often provide a fuller discussion of the principles and their practical application, against which the sometimes sparse reasoning of the judgment can be easier to understand and apply.
+In this case, at least in retrospect, as the present controversy demonstrates, it was an unfortunate omission.
+On the other hand, it is important to note that United Kingdom interpretation was supported by the European Commission in written observations.
+They provide some useful background information, and to that extent did something to fill the gap left by the absence of an Advocate Generals opinion.
+In particular they addressed the possibility of a more comprehensive view, not dissimilar to that adopted by the Lord Reed: 21.
+One possible approach to such schemes would be to say that there is no such thing as a free gift.
+Loyal customers pay for those gifts as part of the price of goods they buy; customers who are not loyal, moreover, pay for the gifts enjoyed by those who are loyal.
+The cost of operating a loyalty scheme is a cost of business for the trader, and at any given level of profit there is no difference between lowering the price for all customers and selectively lowering the price for loyal customers by giving them more products for the same price.
+Nor is there any difference between giving loyal customers additional quantities of the products normally supplied by the trader and giving them other goods or services.
+Again, this is a form of price discrimination in favour of loyal customers: it is no different from granting them a quantity discount or for that matter a cash rebate.
+Over time, the customer has paid a certain amount for the whole of goods received by him, including those presented as being free.
+Accordingly, he should bear the VAT on that amount, which is the total of his consumption.
+There is no reason to charge additional VAT in respect of the free goods, because in reality he (together with the customers who are not loyal) has already paid for them.
+They rejected this approach as inconsistent with Kuwait Petroleum.
+They then considered whether the inclusion of the services made any difference to the analysis: 26.
+The circumstances of the present cases appear at first sight to fall within that analysis.
+However, in an apparent attempt to evade its consequences, the creators of the loyalty schemes concerned have introduced a nuance: the payments made to the redeemers, that is to say the persons supplying the goods to the customers, are described as payments for services.
+Those services are said to be redemption services (compendiously described in point 8 of the order for reference in Case C 53/09) or marketing services (in Case C 55/09).
+In the Commissions view the inclusion of the services did not make a material difference.
+The economic reality of the situation was that the redeemer was being paid to provide goods to the customers, and nothing more.
+Even if there can be said to be a service element, it is purely ancillary, and the core of the transaction is the supply of goods. (para 27) Accordingly, the payments were to be regarded as third party consideration for the supply of the goods, and no input VAT is deductible in respect of those payments.
+Such payments could be considered as including payment for services to promoters only in so far as it is possible to identify a service separate from the provision of the goods and to determine the price of that service.
+The courts reasoning
+In spite of the criticisms which can be made of some aspects of the judgment, I do not myself find any serious uncertainty about what the court has decided and why.
+In substance the court adopted the Commissions reasoning.
+It is important to read the judgment in the light of the words of the directive, and the previous European case law, and without any preconceptions derived from domestic case law, or from an independent view as to how the tax should operate.
+There are as I see it three crucial points underlying the courts decision.
+First, the supply of loyalty rewards by the redeemers to the collectors was to be treated as a distinct transaction, separate from the other elements of the rewards scheme (para 55).
+As the court noted (para 32), this approach accorded with the form of the questions and the submissions of the parties, and also with previous case law (Kuwait Petroleum [1999] ECR I 2323, para 28).
+That being so, it is unsurprising (as Lord Reed acknowledges paras 36 38 above) that the court did not undertake a broader analysis of the relationships between LMUK and the other parties involved.
+While I acknowledge the apparent attractions of Lord Reeds analysis and the elegance with which it is presented, the decision of the court is to my mind clear on this point and binding on us.
+Nor did I understand LMUK to argue otherwise.
+Secondly, the taxable event under the directive (article 2.1) is a supply of goods or services for consideration.
+In relation to any transaction, it is therefore necessary to start by identifying the relevant supply in respect of which tax is said to be chargeable or deductible.
+Thirdly, the amount of the charge to tax on the one hand, and the right to deduct on the other, are governed by two provisions of the Directive respectively: i) Article 11, which defines the taxable amount as everything which constitutes the consideration which has been or is to be obtained by the supplier from the purchaser, the customer or a third party for such supplies. ii) Article 17(2), which allows a taxable person the right, in so far goods and services are used for the purpose of his taxable transactions, to deduct value added tax due or paid in respect of goods or services supplied or to be supplied to him by another taxable person.
+It is noteworthy that these two provisions are not directly matched.
+From the point of view of the person making the supply, and accounting for the tax, the taxable amount is not limited to consideration from the recipient of the goods, but includes consideration from third parties.
+Conversely, the person seeking to deduct tax has to show, not merely that he gave consideration and paid tax in connection with his own taxable transactions.
+He must show also that the tax was paid in respect of goods or services supplied to him.
+Consideration given by a third party is taken into account in assessing the taxable amount, but there is no corresponding provision giving the person paying third party consideration the right to deduct.
+Applied to the facts of this case, if one ignores for the moment the incidental information and other support services given to LMUK by the redeemers, the CJEUs interpretation of those provisions is readily understandable.
+As is now common ground, the goods were supplied by the redeemers to the collectors, not to LMUK, who merely paid third party consideration for them.
+Article 17(2) gives LMUK no right to deduct, even though the consideration was paid in respect of their taxable transactions, because it was not paid in respect of supplies received by them.
+It is true that the redeemers had a contractual obligation to LMUK to make the supplies to the collectors.
+But there is nothing in the words of the directive to suggest that the mere fulfilment of a contractual obligation of this kind is to be equated with the supply of a service.
+This approach can be seen as a natural extension of the courts reasoning in Auto Lease Holland BV v Bundesant fr Finanzen (Case C 185/01) [2003] ECR I 1317.
+Under the fuel management agreement between Auto Lease and its lessees, the cost of petrol supplied to lessees was paid for by Auto Lease (through a credit card arrangement) and reimbursed by lessees by monthly payments and an annual balancing charge.
+It was held that there was no relevant supply to Auto Lease.
+The fuel management agreement was not a contract for the supply of fuel, but rather a contract to finance its purchase.
+The fuel was purchased not by Auto Lease, but by the lessee having a free choice as to its quality and quantity, as well as the time of purchase. (para 36).
+So here, the agreement between LMUK and the redeemers, so far as relates to the supply of goods, is no more than a contract to finance their purchase, the choice of goods and the time of purchase being left entirely to the collectors.
+Does the addition of the information and other services make any difference? The courts answer (para 58 64) was no, unless the services can be separately identified, and part of the consideration properly apportioned to them.
+That was possible in respect of Baxi but not LMUK.
+There is nothing surprising about that conclusion.
+Once it is accepted that the contractual obligation to supply the goods does not in itself amount to the taxable supply of a service to LMUK, there is no reason why the provision of such incidental services should fundamentally alter the position in relation to the goods element of the transaction, as opposed to any value properly attributable to the services as such.
+Other interpretations might have been possible.
+Arguably, a broader, more purposive interpretation might have led the court to an approach similar to that proposed by Lord Reed, and in line with that of the Court of Appeal in this case.
+That might also have had the attraction of avoiding what appears to be an element of double taxation if the scheme is looked at as a whole (as Lord Reed suggests para 84 above).
+However, that is (or should be) water under the bridge.
+Interpretation of the directive is ultimately a matter for the CJEU, not the domestic courts.
+We are bound to follow their lead.
+LMUKs submissions
+Mr Milne QC, for LMUK, submitted that, properly understood, the judgment is not inconsistent with the reasoning of the Court of Appeal.
+The finding that the payments were third party consideration for supply of rewards to customers did not exclude the possibility of their being at the same time consideration for redemption services supplied to LMUK.
+On the contrary, the judgment acknowledged that possibility in paragraph 64, by leaving it to the referring court to determine whether those payments also include the consideration for the supply of services corresponding to a separate supply.
+Accordingly there is nothing in the judgment to undermine the reasoning of Chadwick LJ, or the decisions in Redrow and Plantiflor on which it was based.
+In his oral submissions, Mr Milne relied strongly on the decision of the CJEU in Case C 165/86 Leesportefeuille Intiem CV v Staatssecretaris van Financin [1989] 2 CMLR 856 (Intiem), and the comments of the Advocate General in Case C 338/98 EC Commission v Netherlands [2004] 1 WLR 35; [2003] STC 1506.
+They showed that there could be a taxable supply of goods to one person, notwithstanding that delivery was to a third party.
+He also relied on a table, showing hypothetical payments and their tax consequences, as indicating that LMUKs argument alone was consistent with the underlying principle of fiscal neutrality.
+As a fall back position, Mr Milne argued for an apportionment on the basis that the service charge should be split between the cost incurred by the redeemer in providing the rewards, and the difference between such cost and the total service charge; alternatively on the basis of the market value of the services provided to LMUK less the cost of the rewards.
+He suggested that the issue might be remitted to a new tribunal for determination.
+Discussion
+Fairly read, it is impossible in my view to read the judgment as leaving open the possibility that the whole consideration might be taken as in respect of supplies both to LMUK and to the collectors.
+Even if that possibility was not addressed in terms, the judgment as a whole, particularly the reasoning in the Baxi case, leaves no serious doubt what the answer would have been.
+The court considered the argument that the payments should be treated, not as payment for supply of goods, but rather for a complex advertising service under which the supply of loyalty rewards to customers is one of a number of services (para 59).
+That argument was clearly rejected.
+The element of the payments, representing the price of the rewards and the cost of packaging and delivery, was treated solely as consideration for the supply of goods to collectors, only the profit margin being allocated to the services to Baxi (paras 61 63).
+That reasoning is inconsistent with the proposition that, other than by apportionment, the consideration could be treated at the same time as being in respect of supplies to both parties.
+Paragraph 64 of the judgment must be seen in that context.
+It cannot be read as leaving open the issue of whether the whole consideration could be treated as in respect of two different supplies.
+Although the issue of apportionment had not previously been raised in the LMUK case, and had been rejected by LMUK itself as without merit, it was included in the questions before the court, and therefore required an answer.
+Paragraph 64 follows the treatment of the same issue in the Baxi case, where it did arise.
+As I read paragraph 64, it is simply covering the same issue for the sake of completion in the LMUK case, indicating that, in the absence of any relevant findings before the court, it must be left to the domestic courts to determine.
+Intiem
+I turn to the argument based on Intiem.
+The company operated a business involving the distribution by its employees of a catalogue to customers at their homes.
+The employees used their own cars for deliveries.
+At the end of each working day, they were able to refuel at the companys expense at a filling station near the companys office, under a contractual arrangement between the company and the station.
+The filling station then invoiced Intiem for the petrol so supplied to employees.
+The issue referred to the CJEU was whether the company could deduct the full amount of tax on the petrol so supplied, notwithstanding that it was supplied in fact to the employees.
+That question was answered in the affirmative.
+Having noted that the right to deduct applied to goods and services connected with the pursuit of the taxable persons business, the Court said: 14 It must accordingly be concluded that this deduction system must be applied in such a way that its scope corresponds as far as possible to the sphere of the taxable persons business activity.
+Where, in such circumstances, article 17 (2) of the Sixth Directive restricts the taxable persons right of deduction, as regards the value added tax on supplied goods, to the tax due or paid in respect of goods . supplied to him, the purpose of that provision cannot be to exclude from the right of deduction the value added tax paid on goods which, although sold to the taxable person in order to be used exclusively in his business, were physically delivered to his employees.
+As the Advocate General had said: The fact that the petrol is pumped directly into the tank of the employees car and is used on account of the undertaking in no way affects the legal and economic reality of the transaction In economic terms, the petrol with which Intiem is invoiced and for which it has to pay constitutes one of its production cost components which bears the value added tax charged on it at the previous stage ([1989] 2 CMLR at p 861)
+That judgment was distinguished in Case C 338/98 EC Commission v Netherlands [2004] 1 WLR 35; [2003] STC 1506, where, under Dutch legislation, an employer was able to pay employees allowances for use of their cars in the employers business and a standard 12% deduction was allowed by way of input VAT.
+That arrangement was held to be incompatible with the relevant EU legislation for a number of reasons.
+The Court noted (para 37), and implicitly accepted, the Commissions identification of three significant differences from the facts of Intiem: first, there was no agreement between the employer and the supplier; secondly, the goods were not used exclusively for the employers business; and thirdly, the taxable employer was not invoiced by the taxable supplier.
+The Court arrived at its conclusion on the true interpretation of the Sixth Directive, while accepting that it might not appear fully consistent with certain objectives pursued by that Directive such as fiscal neutrality and the avoidance of double taxation (para 55).
+Mr Milne submits that this case is analogous to Intiem, rather than the Netherlands case, in that, while the goods are physically supplied to the customers, that is in pursuance of contracts between LMUK and the Redeemers, and invoiced accordingly, and it is done wholly for the purposes of LMUKs business.
+Attractively though the argument was put, the short answer is that it is irreconcilable with the CJEUs decision in this case.
+The Court has clearly decided that, on the facts of this case, and notwithstanding the contractual position, economic reality lies in treating the rewards as goods supplied to the collectors and not, directly or indirectly, as part of services supplied to LMUK.
+Previous House of Lords authorities
+It remains to consider how the judgment in this case affects the reasoning and conclusions of the House of Lords in the Redrow and Plantifor.
+The relevant facts and the essential reasoning of the House of Lords in each case have been described by Lord Reed.
+Like him, I see no reason to doubt the correctness of the decision in either case, but hesitate to regard either as laying down a universal rule.
+The Commissioners position on the correctness of the decision in Redrow has fluctuated.
+Lindsay J recorded, and in effect adopted, their submission (presented at that time by Mr Vajda QC) that Redrow was distinguishable on the facts: Mr Vajda draws attention to the very different facts of Redrow.
+There it was Redrow not the prospective house purchaser who chose the estate agents and gave instructions to them.
+Redrow obtained a contractual right as against the estate agents and could even prevent or override changes in the agents' instruction which the house purchasers might otherwise have been minded to make By contrast, says Mr Vajda, it was not LMUK that selected the particular goods or services enjoyed by way of reward by Collectors, nor, (in the sense that no Collector was bound to use points in all his acquisitions but could deal with retailers who were not Suppliers) was it LMUK that selected who it was that was to supply them.
+LMUK had no role in determining whether goods or services should be acquired by Collectors only by the use of points or wholly by cash or partly for one and partly for the other or in what proportions between the two forms of satisfaction.
+Nor is it the case that such provision as is made to Collectors is exclusively at LMUK's expense; in all cases where points alone did not suffice the Collectors, too, would bear some expense.
+In Redrow it was easy enough to see the legal and financial characteristics that were there being examined as pointing to a supply to Redrow but the overriding characteristics of the Programme suggest a provision to Collectors, says Mr Vajda, with third party consideration for that provision coming from LMUK (para 72 73) Similar submissions were made in the Commissioners written observations to the CJEU, when it was asserted that the House of Lords reached the correct result in the Redrow case, but for the wrong reasons.
+By contrast, before us Mrs Whipple for the Commissioners submitted that neither the reasoning nor the conclusion in Redrow was compatible with the CJEU decision in the present case.
+The House of Lords had been wrong to focus on the position from the point of view of the taxpayer, rather than determining the economic reality of the transaction.
+On that view, the estate agency services were supplied to the householders, albeit subject to a measure of control by Redrow.
+Lord Hope was right to acknowledge that reality (clearly the estate agents were supplying services to prospective purchasers), but wrong to think that it could stand with a finding that tax was deductible by the person who instructed the service and who has had to pay for it of the benefit of the deduction ([1999] 1 WLR 408, 412).
+I prefer the Commissioners earlier view.
+The facts of Redrow differed markedly from those of the present case, for the reasons Mr Vajda gave.
+Although the prospective purchasers benefited, Redrow did not merely pay for the services, but exercised a high degree of control and received benefits for purposes directly related to its own business objectives.
+By contrast, in the present case LMUK had no direct or indirect interest in the reward goods themselves; their interest was only in the fulfilment of obligations previously undertaken as part of the rewards scheme as a whole.
+As Lord Reed has noted, Redrow was followed and applied in Plantiflor, though the outcome in the latter case was victory for the Commissioners.
+It is unnecessary to repeat his description of the case.
+Mrs Whipple submitted that the decision in Plantifor is compatible with the reasoning of the CJEU in the present case.
+As she put it in her printed submissions, in terms with which I readily agree: There plainly are cases which fall properly within the delivery model referred to by Lord Millett as being cases where the arrangements consist of the right to have goods delivered or services rendered to a third party.
+A typical example is where A contracts with B to have flowers delivered to C.
+The economic reality of those arrangements is that A and B contract, on terms that As payment is to B, for services provided to A, those services consisting of delivery to C.
+In CEC v Plantifor, Plantifor contracted with Parcelforce to have flowers delivered to its customers.
+The supply was by Parcelforce to P of the service of delivering Ps goods (plants and garden products) to Ps customers pursuant to a contract for delivery made between Parcelforce and P, and for a consideration payable by P. The House of Lords correctly identified the VAT supply as being, on these facts, by Parcelforce to P, and not to Ps customer.
+I do not find it necessary or useful to consider in detail the other cases to which we have been referred.
+They merely serve to illustrate, as Lord Reed has said, how difficult and fact sensitive the issues may be in individual cases.
+Other issues
+I have noted that the CJEU left open the possibility of an apportionment of the service charge, and LMUK has proposed that the issue should be referred back to the Tribunal.
+I agree with Mrs Whipple that this point is not open to them at this stage, having clearly and repeatedly declined hitherto to make it a part of their case.
+It would be contrary to well established principles to remit the case to the Tribunal for findings on factual issues which could have been but were not raised when the matter was originally before them.
+Both parties have claimed that the principles of fiscal neutrality support their respective cases.
+I have found this a somewhat elusive concept on the facts of this case.
+It must be assumed that so far as appropriate this aspect has been taken into account by the CJEU in their decision.
+We were told by Mr Milne that they were shown the tables which are before us, and which appear to show an element of double taxation looking at the scheme as a whole.
+However, as I have indicated, where third party consideration is involved, a potential for imbalance is inherent in the definitions respectively of the taxable amount and of the right to deduct.
+It is clear from the CJEU case law that the principle of neutrality is not to be treated as an overriding principle of interpretation such as to justify a departure from the words of the directive (see for example EC Commission v Netherlands cited above).
+Conclusion
+For these reasons, I would have allowed the appeal, and restored the order of Lindsay J.
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+This appeal arises from steps taken by the appellant, Dallah Real Estate and Tourism Holding Company (Dallah), to enforce in England a final award dated 23 June 2006 made in its favour in the sum of US$20,588,040 against the Government of Pakistan (the Government) by an International Chamber of Commerce (ICC) arbitral tribunal sitting in Paris.
+The Government has hitherto succeeded in resisting enforcement on the ground that the arbitration agreement was not valid . under the law of the country where the award was made (Arbitration Act 1996, s.103(2)(b), reflecting Article V(I)(a) of the New York Convention), that is under French law.
+Dallah now appeals.
+The award was made against the Government on the basis that it was a true party to an Agreement dated 10 September 1996 expressed to be made between and signed on behalf of Dallah and Awami Hajj Trust (the Trust).
+The Agreement contains an arbitration clause referring disputes or differences between Dallah and the Trust to ICC arbitration.
+The tribunal in a first partial award dated 26 June 2001 concluded that the Government was a true party to the Agreement and as such bound by the arbitration clause, and so that the tribunal had jurisdiction to determine Dallahs claim against the Government.
+The central issue before the English courts is whether the Government can establish that, applying French law principles, there was no such common intention on the part of the Government and Dallah as would make the Government a party.
+Dallah is a member of a group providing services for the Holy Places in Saudi Arabia.
+It had had long standing commercial relations with the Government.
+By letter dated 15 February 1995, Mr Shezi Nackvi, a senior director in the Dallah group, made a proposal to the Government to provide housing for pilgrims on a 55 year lease with associated financing.
+The Government approved the proposal in principle, and a Memorandum of Understanding (MOU) was concluded on 24 July 1995.
+Land was to be purchased and housing facilities were to be constructed at a total cost not exceeding US$242 million and the Government was to take a 99 year lease subject to Dallah arranging the necessary financing to be secured by the Borrower designated by THE GOVERNMENT under the Sovereign Guarantee of THE GOVERNMENT.
+The lease and financing terms were to be communicated to the Government within 30 days for approval, and Dallah was to supply detailed specifications within 60 days of the date of such approval.
+In the event, Dallah in November 1995 acquired a larger and more expensive plot of land than the MOU contemplated, and the timetable was also not maintained.
+Further, on 21 January 1996 the President of Pakistan promulgated Ordinance No VII establishing the Trust with effect from 14 February 1996.
+Under article 89(2) of the Constitution of Pakistan, an Ordinance so promulgated shall stand repealed at the expiration of four months from its promulgation, although, under the same article, it should before then have been laid before Parliament, upon which it would have taken effect as a bill.
+In the event, Parliament appears never to have been involved, but further Ordinances were promulgated to recreate and continue the Trust, viz Ordinance No XLIX of 1996 on a date unknown (presumably prior to 21 May 1996) and No LXXXI of 1996 on 12 August 1996.
+Under each Ordinance the Trust was to maintain a fund with a trustee bank, to be financed from contributions and savings by pilgrims (Hujjaj) and philanthropists, as well as by any income from investments or property.
+The Ordinances also assigned functions within the Trust to various public officers.
+They prescribed, in particular, that the secretary of the Ministry of Religious Affairs (MORA) should act as secretary of the Board of Trustees and (unless some other person of integrity was appointed) as Managing Trustee of the Trust.
+On 29 February 1996 Dallah wrote to the secretary of MORA with a revised proposal, increasing the cost to US$345 million to take account of the larger plot purchased, setting out options for a new legal and financial structure and stating: Legal issues In order to comply with the legal requirements of the various entities involved, the structure will be as follows: a) Government of Pakistan to set up AWAMI HAJJ TRUST b) Trust will borrow the US$100 Million from Dallah Albaraka c) Trust will make a down payment of US$100 million to Albaraka d) Trust will enter into a lease to use these buildings during the Hajj period Annex A detailed the financial structure: Loan terms for down payment of US $ 100 Million Approx 30% of project cost Amount: US $ 100 Million Borrower: Awami Hajj Trust
+Guarantor: Government of Pakistan
+On 3 April 1996 Dallah instructed its lawyers, Orr, Dignam & Co. that the current shape of the transaction involved an agreement to be entered into between Dallah and the Trust on terms which it described.
+Further negotiations with the Government led to the signing of the Agreement between Dallah and the Trust on 10 September 1996.
+The Agreement reflected the increased cost of $345 million, out of which it provided that: the Trust shall pay a lump sum of U.S. $ 100 [million] . to Dallah by way of advance . subject to (i) Dallah arranging through one of its affiliates a U.S. Dollar 100 [million] Financing Facility for the Trust against a guarantee of the Government of Pakistan, . (iii) A counter guarantee issued by the Trust and Al Baraka Islamic Investment Bank, E.C., Bahrain, . appointed by the Board of Trustees pursuant to Section 8 of the Awami Hajj Trust Ordinance, 1996 in favour of the Government of Pakistan.
+Clause 27 provided that: The Trust may assign or transfer its rights and obligations under this Agreement to the Government of Pakistan without the prior consent in writing of Dallah.
+The Agreement made no other references to the Government and was in terms introducing and setting out mutual obligations on the part of Dallah and the Trust.
+These included the arbitration clause: 23.
+Any dispute or difference of any kind whatsoever between the Trust and Dallah arising out of or in connection with this Agreement shall be settled by arbitration held under the Rules of Conciliation and Arbitration of the International Chamber of Commerce, Paris, by three arbitrators appointed under such Rules.
+On 6 November 1996 Ms Benazir Bhuttos government fell from power, and was replaced by that of Mr Nawaz Sharif.
+No further Ordinance was promulgated, and the Trust accordingly ceased to exist as a legal entity at midnight on 11 December 1996.
+It will be necessary to look in detail at correspondence as well as three sets of proceedings in Pakistan which took place during the following years.
+Dallah invoked ICC arbitration against the Government on 19 May 1998, nominating Lord Mustill as its arbitrator.
+It is common ground that the Government has throughout the arbitration denied being party to any arbitration agreement, maintained a jurisdictional reservation and not done anything to submit to the jurisdiction of the tribunal or waive its sovereign immunity.
+The ICC under its Rules appointed Justice Dr Nassim Hasan Shah to act as the Governments arbitrator and Dr Ghaleb Mahmassani to chair the tribunal.
+Terms of Reference, in which the Government refused to join, were signed by the arbitrators and Dallah in March 1999 and approved by the ICC in April 1999.
+The tribunal issued its first partial award on its own jurisdiction on 26 June 2001.
+A second partial award on liability was issued on 19 January 2004 and the final award on 23 June 2006.
+Leave to enforce the final award in England was given by Order of Christopher Clarke J dated 9 October 2006 on a without notice application by Dallah.
+The Governments application to set aside the leave led to a three day hearing with oral evidence before Aikens J in July 2008.
+His judgment setting aside the Order is dated 1 August 2008: [2008] EWHC 1901 (Comm); [2009] 1 All ER (Comm) 505.
+A further three day hearing led to the Court of Appeals dismissal of Dallahs appeal on 20 July 2009 ([2009] EWCA Civ 755; [2010] 1 AER 592), against which the present appeal lies.
+On 19 August 2009, Dallah filed an application in the French courts for enforcement of the final award, and, on 12 January 2010, it sought a stay of the present appeal pending the outcome of its French application.
+On 25 January 2010, the Supreme Court refused such a stay.
+On 21 December 2009, the Government applied in France to set aside all three awards.
+It was in time to do this, since, under French law, the limitation period for doing so only starts to run one month after official notification of the award bearing an enforcement order.
+The issue and the principles governing its resolution
+The validity of the arbitration agreement depends in the present case upon whether there existed between Dallah and the Government any relevant arbitration agreement at all.
+Dallahs case is that the Government has at all times been an unnamed party to the Agreement containing the arbitration clause.
+Before the English courts, this case has been founded on a submission that it was the common intention of the parties that the Government should be such a party to the Agreement.
+Before the arbitral tribunal Dallah put the matter differently.
+It argued that either the Trust was the alter ego of the Government or the Government was the successor to the Trust or to the rights and obligations which the Trust had under the Agreement prior to its demise.
+Neither of these ways of putting the case is now pursued.
+Dallah did not argue before Aikens J that the Trust was the Governments alter ego (judgment, para 58, footnote 21), and it merely submitted that, if and so far as the Government behaved as if it were a successor to the Trust, this was relevant to the issue of common intention (judgment, paras 94 96).
+The issue regarding the existence of any relevant arbitration agreement falls to be determined by the Supreme Court as a United Kingdom court under provisions of national law which are contained in the Arbitration Act 1996 and reflect Article V(1)(a) of the New York Convention.
+The parties submissions before the Supreme Court proceeded on the basis that, under s.103(2)(b) of the 1996 Act and Article V(1)(a) of the Convention, the onus was and is on the Government to prove that it was not party to any such arbitration agreement.
+This was so, although the arbitration agreement upon which Dallah relies consists in an arbitration clause in the Agreement which on its face only applies as between Dallah and the Trust.
+There was no challenge to, and no attempt to distinguish, the reasoning on this point in Dardana Limited v Yukos Oil Company [2002] EWCA Civ 543; [2002] 1 All ER (Comm) 819, paras 10 12, and I therefore proceed on the same basis as the parties submissions.
+S.103(2)(b) and article V(1)(a) raise a number of questions: (a) what is meant by the law of the country where the award was made? (b) what are the provisions of that law as regards the existence and validity of an arbitration agreement? (c) what is the nature of the exercise which an enforcing court must undertake when deciding whether an arbitration agreement existed under such law? and, in particular, (d) what is the relevance of the fact that the arbitral tribunal has itself ruled on the issue of its own jurisdiction? (a) The law of the country where the award was made.
+It is common ground that the award was made in France and French law is relevant.
+But it is also common ground that this does not mean the French law that would be applied in relation to a purely domestic arbitration.
+In relation to an international arbitration, the experts on French law called before Aikens J by Dallah and the Government agreed in their Joint Memorandum (para 2.8) that: Under French law, the existence, validity and effectiveness of an arbitration agreement in an international arbitration . need not be assessed on the basis of a national law, be it the law applicable to the main contract or any other law, and can be determined according to rules of transnational law.
+The approach taken in French law appears in decisions of the Court of Appeal of Paris, in particular Menicucci v Mahieux [1976] Rev Crit 507 (13 December 1975) and Coumet et Ducler v Polar Rakennusos a Keythio [1990] Rev Arb 675 (8 March 1990), and later in the decision of the Cour de Cassation (1re Ch.
+Civ) (20 December 1993) in Municipalit de Khoms El Mergeb v Dalico [1994] 1 Rev Arb 116, where the court said that: en vertu dune rgle matrielle du droit international de larbitrage, la clause compromissoire est indpendante juridiquement du contrat principal qui la contient directement ou par rfrence et que son existence et son efficacit sapprcient, sous rserve des rgles impratives du droit franais et de lordre public international, daprs la commune volont des parties, sans quil soit ncessaire de se rfrer une loi tatique .
+This language suggests that arbitration agreements derive their existence, validity and effect from supra national law, without it being necessary to refer to any national law.
+If so, that would not avoid the need to have regard to French law as the law of the country where the award was made under Article V(1)(a) of the Convention and s.103(2)(b) of the 1996 Act.
+The Cour de Cassation is, however, a national court, giving a French legal view of international arbitration; and Dallah and the Government agree that the true analysis is that French law recognises transnational principles as potentially applicable to determine the existence, validity and effectiveness of an international arbitration agreement, such principles being part of French law.
+As Miss Heilbron QC representing Dallah put it, transnational law is part of French law.
+Mr Landau QC representing the Government now accepts this analysis (although in his written case, para 157, he appeared to take issue with it and Aikens J, para 93, in fact disregarded transnational law on the basis that it was not part of French law, but relevant only under French conflict of laws principles and so not within Article V(1)(a) and s.103(2)(b)).
+Since the point is common ground, I merely record that Mr Landau referred the Court to Pierre Mayers note on Ducler in KluwerArbitration, explaining the rationale of the Paris Court of Appeal decisions as being to confine the restrictive provisions of article 2061 of the French Civil Code to internal contracts.
+He also referred to Fouchard, Gaillard, Goldmans International Commercial Arbitration (1999) (Kluwer), para 440, describing as somewhat unfortunate the terminology used in (French) decisions referring to an arbitration agreement as autonomous from any national law and as having its own effectiveness, and observing that a contract can only be valid by reference to a law that recognises such validity.
+Finally, in response to a 1977 commentary, suggesting that the validity of an arbitration clause in an international contract resulted solely from the will of the parties, independently of any reference to the law of the main contract, and to any national law and describing this as the ultimate pinnacle of autonomy, Poudret and Bessons Comparative Law of International Arbitration 2nd ed (2007), para 180 also said that: it is only the first two aspects, i.e. indifference to the fate of the main contract and the possibility of being submitted to a separate law, that flow logically from the principle of separability.
+The latter by no means implies that the arbitration agreement is independent of any national law.
+The real justification of this regime lies elsewhere: as Philippe Fouchard emphasises in his note on the Menicucci judgment, the aim is to remove the obstacles which certain laws, including French law, bring to the development of international arbitration.
+Although the judgment does not say so, this new conception of separability implies abandoning the conflict of laws approach in favour of material rules, which are in reality part of French law and not of any international or transnational system.
+We shall see this point with the Dalico judgment.
+In the light of the common ground between the parties, it is also unnecessary to engage with the competing representations of international arbitration lucidly discussed in Gaillards Legal Theory of International Arbitration (2010) pp. 13 66.
+Whatever the juridical underpinning or autonomy of their role from the viewpoint of international arbitrators, the present case involves an application to enforce in the forum of a national court, subject to principles defined by s.103 of the 1996 Act and Article V of the New York Convention, upon the effect of which there is substantial, though not complete, agreement between the parties now before the Supreme Court. (b) The provisions of that law as regards the existence and validity of an arbitration agreement.
+The parties experts on French law were agreed that a French court would apply a test of common intention to an issue of jurisdiction.
+Dallahs expert, M. Derains, said this in his written report (p.14): Thus, my Experts opinion is that it is open to an arbitral tribunal seating in Paris in an international arbitration to find that the arbitration agreement is governed by transnational law.
+Yet, the arbitrators must also look for the common will of the parties, express or implied, since it is a substantive rule of French law that the Courts will apply when controlling the jurisdiction of the arbitrators.
+In para 2.9 of a joint memorandum to which Aikens J referred in paras 85 et seq of his judgment, the experts agreed upon the following statement: Under French law, in order to determine whether an arbitration clause upon which the jurisdiction of an arbitral tribunal is founded extends to a person who is neither a named party nor a signatory to the underlying agreement containing that clause, it is necessary to find out whether all the parties to the arbitration proceedings, including that person, had the common intention (whether express or implied) to be bound by the said agreement and, as a result, by the arbitration clause therein.
+The existence of a common intention of the parties is determined in the light of the facts of the case.
+To this effect, the courts will consider the involvement and behaviour of all the parties during the negotiation, performance and, if applicable, termination of the underlying agreement.
+The experts agreement summarises a jurisprudence constante in the French courts.
+The Cour de Cassation endorsed a test of common intention in the case of Dalico (para 14 above).
+M. Derains endorsed its application to issues such as that in the present case.
+Aikens J had cited to him the leading decisions of the Paris Court of Appeal spelling out the principle in greater detail in a series of cases concerning international arbitrations: Socit Isover Saint Gobain v Socit Dow Chemical [1984] 1 Rev Arb 98 (21 October 1983), Co. tunisienne de Navigation v Socit Comptoir commercial Andr [1990] 3 Rev Arb 675 (28 November 1989) and Orri v Socit des Lubrifiants Elf Aquitaine [1992] Jur Fr 95 (11 January 1990).
+In the last case, the Court put the position as follows: Selon les usages du commerce international, la clause compromissoire insre dans un contrat international a une validit et une efficacit propres qui commandent den tendre lapplication aux parties directement impliques dans lexcution du contrat et les litiges qui peuvent en rsulter, ds lors quil est tabli que leur situation contractuelle, leurs activits et les relations commerciales habituelles existent entre les parties font prsumer quelles ont accept la clause darbitrage dont elles connaissaient lexistence et la porte, bien quelles naient pas t signataires du contrat qui la stipulait.
+In translation: According to the customary practices of international trade, the arbitration clause inserted into an international contract has its own validity and effectiveness which require that its application be extended to the parties directly involved in the performance of the contract and any disputes which may result therefrom, provided that it is established that their contractual situation, their activities and the normal commercial relations existing between the parties allow it to be presumed that they have accepted the arbitration clause of which they knew the existence and scope, even though they were not signatories of the contract containing it.
+This then is the test which must be satisfied before the French court will conclude that a third person is an unnamed party to an international arbitration agreement.
+It is difficult to conceive that any more relaxed test would be consistent with justice and reasonable commercial expectations, however international the arbitration or transnational the principles applied.
+Aikens J recorded that the experts were also agreed that: (i) when the court is looking for the common intention of all the potential parties to the arbitration agreement, it is seeking to ascertain the subjective intention of each of the parties, through their objective conduct.
+The court will consider all the facts of the case, starting at the beginning of the chronology and going on to the end and looking at the facts in the round (para 87); (ii) when a French court is considering the question of the common intention of the parties, it will take into account good faith (para 90); and (iii) under French law a state entering into an arbitration agreement thereby waives its immunity, both from jurisdiction (as under English law: State Immunity Act 1978, s.9(1) and Svenska Petroleum Exploration AB v Government of the Republic of Lithuania (No 2) [2006] EWCA Civ 1529; [2007] QB 886) and (unlike English law) also from execution (para 91).
+However the experts disagreed as to whether the last point had any relevance when considering whether a state had entered into such an agreement.
+In the light of their conflicting evidence on this point, Aikens J found that: (iv) the correct analysis of French law is that when the court is ascertaining the subjective intention of the potential state party to the arbitration agreement, it will bear in mind the fact that the potential state party to the arbitration agreement would lose its state immunity if it were to become a party to the arbitration agreement (para 91). (c) The nature of the exercise which an enforcing court must undertake when deciding whether an arbitration agreement existed under such law, and (d) the relevance of the fact that the arbitral tribunal has itself ruled on the issue of its own jurisdiction.
+These questions are here linked.
+Miss Heilbrons primary submission on question (c) is that the only court with any standing to undertake a full examination of the tribunals jurisdiction would be a French court on an application to set aside the award for lack of jurisdiction.
+An example of the French courts willingness to do this is provided by Rpublique arabe dEgypte v Southern Pacific Properties Ltd [1986] Ju Fr 75; [1987] Ju Fr 469 (12 July 1984, Paris Court of Appeal and 6 January 1987, Cour de Cassation) (the Pyramids case).
+Article 1502 of the French Code of Civil Procedure entitles a French court to refuse to recognise or enforce an arbitral award made in the absence of any arbitration agreement, while article 1504 entitles the court to set aside an award made in France in an international arbitration on the grounds provided in article 1502.
+An ICC arbitral tribunal sitting in Paris had held the Arab Republic of Egypt liable as being party to a contract signed between companies in the Southern Pacific group and the Egyptian General Organisation for Tourism and Hotels (EGOTH).
+On an application by Egypt to set aside the award, the Court of Cassation held that the Court of Appeal had been entitled under articles 1502 and 1504 de rechercher en droit et en fait tous les elements concernant les vices en question (to examine in law and in fact all the elements relevant to the alleged defects: p 470), and that it had on that basis been up to the Court of Appeal to make up its own mind whether the arbitrators had exceeded their jurisdiction.
+In Miss Heilbrons submission, any enforcing court (other than the court of the seat of the arbitration) should adopt a different approach.
+It should do no more than review the tribunals jurisdiction and the precedent question whether there was ever any arbitration agreement binding on the Government.
+The nature of the suggested review should be flexible and nuanced according to the circumstances.
+Here, Miss Heilbron argues that the answer to question (d) militates in favour of a limited review.
+She submits that the tribunal had power to consider and rule on its own jurisdiction (Kompetenz Kompetenz or comptence comptence), that it did so after full and close examination, and that its first partial award on jurisdiction should be given strong evidential effect.
+In these circumstances, she submits, a court should refuse to become further involved, at least when the tribunals conclusions could be regarded on their face as plausible or reasonably supportable.
+At times, Dallah has put its case regarding the first partial award even higher.
+In her oral submissions, Miss Heilbron went so far as to suggest that the first partial award was itself an award entitled to recognition and enforcement under the New York Convention.
+No application for its recognition or enforcement has in fact been made (the present proceedings concern only the final award), but, quite apart from that, the suggestion carries Dallah nowhere.
+First, (in the absence of any agreement to submit the question of arbitrability itself to arbitration) I do not regard the New York Convention as concerned with preliminary awards on jurisdiction.
+As Fouchard, Gaillard, Goldmans International Commercial Arbitration, para 654, observes the Convention does not cover the competence competence principle.
+Dallah could not satisfy even the conditions of Article IV(1) of the Convention and s.102(1)(b) of the 1996 Act requiring the production of an agreement under which the parties agreed to submit the question of arbitrability to the tribunal let alone resist an application under Article V(1)(a) and s.103(2)(b) on the ground that the parties had never agreed to submit that question to the binding jurisdiction of the tribunal.
+Second, Dallahs case quotes extensively from Fouchard, Gaillard, Goldman, para 658, pointing out that arbitral tribunals are free to rule on their own jurisdiction, but ignores the ensuring para 659, which says, pertinently, that: Even today, the competence competence principle is all too often interpreted as empowering the arbitrators to be the sole judges of their jurisdiction.
+That would be neither logical nor acceptable.
+In fact, the real purpose of the rule is in no way to leave the question of the arbitrators jurisdiction in the hands of the arbitrators alone.
+Their jurisdiction must instead be reviewed by the courts if an action is brought to set aside or to enforce the award.
+In its written case Dallah also argued that the first partial award gave rise, under English law, to an issue estoppel on the issue of jurisdiction, having regard to the Governments deliberate decision not to institute proceedings in France to challenge the tribunals jurisdiction to make any of its awards.
+This was abandoned as a separate point by Miss Heilbron in her oral submissions before the Supreme Court, under reference to the Governments recent application to set aside the tribunals awards in France.
+But, in my judgment, the argument based on issue estoppel was always doomed to fail.
+A person who denies being party to any relevant arbitration agreement has no obligation to participate in the arbitration or to take any steps in the country of the seat of what he maintains to be an invalid arbitration leading to an invalid award against him.
+The party initiating the arbitration must try to enforce the award where it can.
+Only then and there is it incumbent on the defendant denying the existence of any valid award to resist enforcement.
+Dallahs stance on question (d) cannot therefore be accepted.
+Arbitration of the kind with which this appeal is concerned is consensual the manifestation of parties choice to submit present or future issues between them to arbitration.
+Arbitrators (like many other decision making bodies) may from time to time find themselves faced with challenges to their role or powers, and have in that event to consider the existence and extent of their authority to decide particular issues involving particular persons.
+But, absent specific authority to do this, they cannot by their own decision on such matters create or extend the authority conferred upon them.
+Of course, it is possible for parties to agree to submit to arbitrators (as it is possible for them to agree to submit to a court) the very question of arbitrability that is a question arising as to whether they had previously agreed to submit to arbitration (before a different or even the same arbitrators) a substantive issue arising between them.
+But such an agreement is not simply rare, it involves specific agreement (indeed clear and unmistakable evidence in the view of the United States Supreme Court in First Options of Chicago, Inc. v Kaplan 514 US 938, 944 (1995) per Breyer J), and, absent any agreement to submit the question of arbitrability itself to arbitration, the court should decide that question just as it would decide any other question that the parties did not submit to arbitration, namely, independently: ibid, per Breyer J, p.943.
+Leaving aside the rare case of an agreement to submit the question of arbitrability itself to arbitration, the concept of competence competence is applied in slightly different ways around the world, but it says nothing about judicial review and it appears that every country adhering to the competence competence principle allows some form of judicial review of the arbitrators jurisdictional decision . : China Minmetals Materials Import and Export Co., Ltd. v Chi Mei Corporation 334 F 3d 274, 288 (2003), where some of the nuances (principally relating to the time at which courts review arbitrators jurisdiction) were examined.
+In China Minmetals it was again held, following First Options, that under United States law the court must make an independent determination of the agreements validity and therefore of the arbitrability of the dispute, at least in the absence of a waiver precluding the defense: p 289.
+English law is well established in the same sense, as Devlin J explained in Christopher Brown Ltd v Genossenschaft sterreichischer [1954] 1 QB 8, 12 13, in a passage quoted in the February 1994 Consultation Paper on Draft Clauses and Schedules of an Arbitration Bill of the DTIs Departmental Advisory Committee (then chaired by Lord Steyn): It is not the law that arbitrators, if their jurisdiction is challenged or questioned, are bound immediately to refuse to act until their jurisdiction has been determined by some court which has power to determine it finally.
+Nor is it the law that they are bound to go on without investigating the merits of the challenge and to determine the matter in dispute, leaving the question of their jurisdiction to be held over until it is determined by some court which had power to determine it.
+They might then be merely wasting their time and everybody elses.
+They are not obliged to take either of those courses.
+They are entitled to inquire into the merits of the issue whether they have jurisdiction or not, not for the purpose of reaching any conclusion which will be binding upon the parties because that they cannot do but for the purpose of satisfying themselves as a preliminary matter whether they ought to go on with the arbitration or not.
+If it became abundantly clear to them, on looking into the matter, that they obviously had no jurisdiction as, for example, it would be if the submission which was produced was not signed, or not properly executed, or something of that sort, then they might well take the view that they were not going to go on with the hearing at all.
+They are entitled, in short, to make their own inquiries in order to determine their own course of action, and the result of that inquiry has no effect whatsoever upon the rights of the parties.
+This coincides with the position in French law: paras 20 and 22 above.
+An arbitral tribunals decision as to the existence of its own jurisdiction cannot therefore bind a party who has not submitted the question of arbitrability to the tribunal.
+This leaves for consideration the nature of the exercise which a court should undertake where there has been no such submission and the court is asked to enforce an award.
+Domestically, there is no doubt that, whether or not a partys challenge to the jurisdiction has been raised, argued and decided before the arbitrator, a party who has not submitted to the arbitrators jurisdiction is entitled to a full judicial determination on evidence of an issue of jurisdiction before the English court, on an application made in time for that purpose under s.67 of the Arbitration Act 1996, just as he would be entitled under s.72 if he had taken no part before the arbitrator: see e.g. Azov Shipping Co. v Baltic Shipping Co. [1999] 1 Lloyds Rep 68.
+The English and French legal positions thus coincide: see the Pyramids case (para 20 above).
+The question is whether the position differs when an English court is asked to enforce a foreign award.
+There is an irony about Dallahs stance that any enforcing court, other than the court of the seat, has a restricted role in reviewing an arbitral tribunals jurisdiction.
+The concept of transnational arbitration has been advocated in arbitral circles, and was no doubt recognised by French courts, in order so far as possible to underline the autonomy of international arbitration from the seat of arbitration or its national legal system.
+What matters in real terms is where an arbitration award can be enforced: see Gaillards Legal Theory of International Arbitration, (op. cit.) Chapter I.
+Yet Miss Heilbrons submissions invoke in one and the same breath a transnational view and a view attaching a special and dominant significance to the law of the seat.
+They also invite the spectre of dual sets of proceedings, conducted in two different countries (that of the seat and that of enforcement) involving different levels of review in relation to essentially the same issue whether the award should be enforced in the latter country.
+It is true that Article V(1)(e) of the Convention and s.103(2)(f) of the 1996 Act recognise the courts of the country in which, or under the law of which an award was made as the courts where an application to set aside or suspend an award may appropriately be made; and also that Article VI and s.103(5) permit a court in any other country where recognition or enforcement of the award is sought to adjourn, if it considers it proper, pending resolution of any such application.
+But Article V(1)(a) and s.103(2)(b) are framed as free standing and categoric alternative grounds to Article V(1)(e) of the Convention and s.103(2)(f) for resisting recognition or enforcement.
+Neither Article V(1)(a) nor s.103(2)(b) hints at any restriction on the nature of the exercise open, either to the person resisting enforcement or to the court asked to enforce an award, when the validity (sc. existence) of the supposed arbitration agreement is in issue.
+The onus may be on the person resisting recognition or enforcement, but the language enables such person to do so by proving (or furnishing proof) of the non existence of any arbitration agreement.
+This language points strongly to ordinary judicial determination of that issue.
+Nor do Article VI and s.103(5) contain any suggestion that a person resisting recognition or enforcement in one country has any obligation to seek to set aside the award in the other country where it was made.
+None of this is in any way surprising.
+The very issue is whether the person resisting enforcement had agreed to submit to arbitration in that country.
+Such a person has, as I have indicated, no obligation to recognise the tribunals activity or the country where the tribunal conceives itself to be entitled to carry on its activity.
+Further, what matters, self evidently, to both parties is the enforceability of the award in the country where enforcement is sought.
+Since Dallah has chosen to seek to enforce in England, it does not lie well in its mouth to complain that the Government ought to have taken steps in France.
+It is true that successful resistance by the Government to enforcement in England would not have the effect of setting aside the award in France.
+But that says nothing about whether there was actually any agreement by the Government to arbitrate in France or about whether the French award would actually prove binding in France if and when that question were to be examined there.
+Whether it is binding in France could only be decided in French court proceedings to recognise or enforce, such as those which Dallah has now begun.
+I note, however, that an English judgment holding that the award is not valid could prove significant in relation to such proceedings, if French courts recognise any principle similar to the English principle of issue estoppel (as to which see The Sennar (no. 2) [1985] 1 WLR 490).
+But that is a matter for the French courts to decide.
+The nature of the present exercise is, in my opinion, also unaffected where an arbitral tribunal has either assumed or, after full deliberation, concluded that it had jurisdiction.
+There is in law no distinction between these situations.
+The tribunals own view of its jurisdiction has no legal or evidential value, when the issue is whether the tribunal had any legitimate authority in relation to the Government at all.
+This is so however full was the evidence before it and however carefully deliberated was its conclusion.
+It is also so whatever the composition of the tribunal a comment made in view of Dallahs repeated (but no more attractive for that) submission that weight should be given to the tribunals eminence, high standing and great experience.
+The scheme of the New York Convention, reflected in ss.101 103 of the 1996 Act may give limited prima facie credit to apparently valid arbitration awards based on apparently valid and applicable arbitration agreements, by throwing on the person resisting enforcement the onus of proving one of the matters set out in Article V(1) and s.103.
+But that is as far as it goes in law.
+Dallah starts with advantage of service, it does not also start fifteen or thirty love up.
+This is not to say that a court seised of an issue under Article V(1)(a) and s.103(2)(b) will not examine, both carefully and with interest, the reasoning and conclusion of an arbitral tribunal which has undertaken a similar examination.
+Courts welcome useful assistance.
+The correct position is well summarised by the following paragraph which I quote from the Governments written case: 233.
+Under s.103(2)(b) of the 1996 Act / Art V.1(a) NYC, when the issue is initial consent to arbitration, the Court must determine for itself whether or not the objecting party actually consented.
+The objecting party has the burden of proof, which it may seek to discharge as it sees fit.
+In making its determination, the Court may have regard to the reasoning and findings of the alleged arbitral tribunal, if they are helpful, but it is neither bound nor restricted by them.
+The application of the above principles
+The above principles have already been applied to the facts of this case at two previous instances.
+Not surprisingly, therefore, most of the emphasis of Dallahs written case and oral submissions before the Supreme Court was on the submissions of principle which have already been considered.
+In the circumstances and in the light of the careful examination of the whole history in the courts below, it is unnecessary to go once again into every detail.
+Each of the courts below has paid close attention to the arbitral tribunals reasoning and conclusions, before concluding that the tribunal lacked jurisdiction to make the final award now sought to be enforced.
+Their examination of the case took place by reference to the same principles that a French court would, on the expert evidence, apply if and when called upon to examine the existence of an arbitration agreement between Dallah and the Government: see paras 17 20 above.
+It took account of the whole history, including the Governments close involvement with and interest in the project from the original proposal onwards, the negotiation and signature of the MOU with the Government, the creation by the Government of the Trust and the re structuring of the project to introduce the Trust, the negotiation and signature of the Agreement between Dallah and the Trust, the subsequent correspondence, the three sets of proceedings in Pakistan and the arbitration proceedings.
+The tribunals approach
+The arbitral tribunal set out its approach to the issue of jurisdiction in the opening paragraphs of its first partial award.
+Dallah and the Government had argued for a single law governing both arbitral jurisdiction and the substance of the issues: the law of Saudi Arabia in Dallahs submission and the law of Pakistan in the Governments.
+The tribunal distinguished between jurisdiction and substance, relying on the principle of autonomy of arbitral agreements, and rejected both the suggested national laws.
+It held (section III(I)) that: 3.
+Judicial as well as Arbitral case law now clearly recognise that, as a result of the principle of autonomy, the rules of law, applicable to an arbitration agreement, may differ from those governing the main contract, and that, in the absence of specific indication by the parties, such rules need not be linked to a particular national law (French Cour de Cassation, 1er civ., Dec. 20, 1993, Dalico), but may consist of those transnational general principles which the Arbitrators would consider to meet the fundamental requirements of justice in international trade.
+Dr Justice Shah and Lord Mustill would not endorse without reservation the concept of a transnational procedural law independent of all national laws.
+They need not however pursue this, since it makes no difference to the result. 4. in view of the autonomy of the Arbitration Agreement, the Tribunal believes that such Agreement is not to be assessed, as to its existence, validity and scope, neither under the laws of Saudi Arabia nor under those of Pakistan, nor under the rules of any other specific local law connected or not, to the present dispute.
+By reason of the international character of the Arbitration Agreement coupled with the choice, under the main Agreement, of institutional arbitration under the ICC Rules without any reference in such Agreement to any national law, the Tribunal will decide on the matter of its jurisdiction and on all issues relating to the validity and scope of the Arbitration Agreement and therefore on whether the Defendant is a party to such Agreement and to this Arbitration, by reference to those transnational general principles and usages reflecting the fundamental requirements of justice in international trade and the concept of good faith in business.
+As to what this meant in practice, the tribunal noted (section III(III)(1)) that: a non signatory may be bound by an arbitration agreement, by virtue of any one of a number of legal theories such as representation, assignment, succession, alter ego or the theory of group of companies.
+It recorded that Dallahs primary case was that the Trust was an alter ego of the Government, but went on immediately to say that: To arbitrate this disputed issue, the Arbitral Tribunal believes that it is very difficult to reason exclusively on the basis of juristic and abstract legal principles and provisions and to decide such issue by merely relying on general considerations of legal theory.
+The tribunal then described the setting up and organisation of the Trust.
+It concluded that the rules and regulations provided in the Ordinance did not contain sufficient evidence that would permit it to disregard the Trusts legal entity and to consider that the Trust and the Government are one such entity, and were fully consistent with the general features of the regulations of public entities, and that Such control of the Trust by the Government is not, in itself, sufficiently pertinent to impair the distinct legal personality enjoyed by the Trust or to lead to the disregard of such personality, and therefore to the extension of the Arbitration Agreement from the Trust to the Government.
+The tribunal, or Dr Shah and Lord Mustill, added that particular caution must be observed where the party sought to be joined as defendant is a state or state body.
+The tribunal continued (section III(III)): 5.
+In fact, any reply to the present issue relating to whether or not the Present Defendant is a Party to the Arbitration Agreement depends on the factual circumstances of the case and requires a close scrutiny of the conduct and of the actions of the parties before, during and after the implementation of the main Agreement in order to determine whether the Defendant may be, through its role in the negotiation, performance and termination of such Agreement, considered as a party thereto, and hence to the Arbitration Agreement.
+The control exercised by the State over the Trust becomes, within that framework, an element of evidence of the interest and the role that the party exercising such control has in the performance of the agreement concluded by the Trust, and provides the backdrop for understanding the true intentions of the parties. 6.
+Arbitral as well as judicial case law has widely recognised that, in international arbitration, the effects of the arbitration clause may extend to parties that did not actually sign the main contract but that were directly involved in the negotiation and performance of such contract, such involvement raising the presumption that the common intention of all parties was that the non signatory party would be a true party to such contract and would be bound by the arbitration agreement.
+In the context of the award as a whole, the last paragraph must be a statement by the tribunal of one of the transnational general principles and usages reflecting the fundamental requirements of justice in international trade and the concept of good faith in business, to which the tribunal had earlier referred in section III(I)(4).
+In this light, the tribunal examined in turn the position prior to, at signature of, and during performance of the Agreement, and during the period after the Trust lapsed.
+At each point, it focused on the Governments conduct.
+It considered that it was clearly established that the Trust was organically and operationally under the Governments strict control, that its financial and administrative independence was largely theoretical, and that everything concerning the Agreement was at all times performed by the [Government] concurrently with the Trust and that the Trust functions . reverted back logically to the Government, after the Trust ceased to exist (section III(III)(12 1).
+The tribunals examination led it to conclude (para 12 1) that: The Trust, in spite of its distinct legal personality in theory, appears thus in fact and in conduct to have been considered and to have acted as a part and a division of the Defendant to which it is fully assimilated, a temporary instrument that has been created by a political decision of the Defendant for specific activities which the Defendant wanted to perform, and which was cancelled also by a political decision of the Defendant.
+Therefore, the Trust appears as having been no more than the alter ego of the Defendant which appears, in substance, as the real party in interest, and therefore as the proper party to the Agreement and to the Arbitration with the Claimant.
+The tribunal went on (para 12 2) to say that the Governments behaviour, as in actual fact the party that was involved in the negotiation, implementation and termination of the Agreement . before, during and after the existence of the Trust, shows and proves that the [Government] has always been and considered itself to be a true party to the Agreement .
+The tribunal acknowledged (para 13) that Certainly, many of the above mentioned factual elements, if isolated and taken into a fragmented way, may not be construed as sufficiently conclusive for the purpose of this section, but it recorded that Dr Mahmassani believed that, when looked at globally as a whole, such elements constitute a comprehensive set of evidence that may be relied upon to conclude that the Defendant is a true party to the Agreement, and that While joining in this conclusion Dr Shah and Lord Mustill note that they do so with some hesitation, considering that the case lies very close to the line.
+In paragraph 14, the tribunal recorded a further divergence of view, with Dr Mahmassani believing that the general principle of good faith comforts the conclusion that the Trust is the alter ego of the Defendant, but Dr Shah and Lord Mustill not convinced that in matters not concerning the conduct of proceedings but rather the identification of those who should be participants in them, a duty of good faith can operate to make someone a party to an arbitration who on other grounds could not be regarded as such.
+The tribunals ultimate conclusion on jurisdiction was thus expressed as a finding (in which two of the arbitrators only narrowly concurred) that the Trust was the alter ego of the Government, making the Government a true party to the Agreement.
+That, as I have said (para 11 above), is not now Dallahs case.
+But Dallah points out that the tribunals reasoning for its ultimate finding, and the lengthy analysis of conduct and events which the tribunal undertook, can be traced back to para 6 of section (III)(III) of its award, where the tribunal identified a test of common intention to be derived from judicial and arbitral case law.
+How these strands of thought relate is not to my mind clear.
+There is a considerable difference between a finding (and between the evidence relevant to a finding) that one of two contracting parties is the alter ego of a third person and a finding that it was the common intention of the other party to the contract that the third person should be a party to the contract made with the first party.
+The former depends on the characteristics and relationship of the first contracting party and the third person.
+The latter depends on a common intention on the part of the second contracting party and the third person (and possibly also on the part of the first contracting party, although no one has suggested that the Trust in the present case did not concur in any common intention that Dallah and the Government may be found to have had).
+Since the tribunal focused throughout on the Trust and Government and their relationship and conduct, and ended with a conclusion that the former was the alter ego of the latter, it is not clear how far the tribunal was in fact examining or making any finding about any common intention of Dallah and the Government.
+If it was, the weight attaching to the finding is diminished by the tribunals failure to focus on Dallahs intention.
+The hesitation of two of the arbitrators about the conclusion they reached also suggests the possibility that even a slight difference in the correct analysis of the relevant conduct and events could have led the tribunal overall to a different conclusion.
+More fundamentally, if and so far as the tribunal was applying a test of common intention, the test which it expressed in section III(III)(6) differs, potentially significantly, from the principle recognised by the relevant French case law on international arbitration.
+Although the tribunal must have viewed its test as a transnational general principle and usage, it appears likely that it also had the French case law in mind.
+This is suggested by its use of the words directly involved in and presumption, by its earlier mention of the Dalico case (see para 18 above), and by its letter dated 29 November 2000 written (after the oral hearings before it on jurisdiction) raising the possibility that reasoning embodied in the French Pyramids case might be relevant on the issue of jurisdiction.
+In any event, in Dallahs submission, the tribunal applied principles which accord broadly with French law.
+But, the French legal test, set out in para 18 above, is that an international arbitration clause be may extended to non signatories directly involved in the performance of a contract: provided that it is established that their contractual situation, their activities and the normal commercial relations existing between the parties allow it to be presumed that they have accepted the arbitration clause of which they knew the existence and scope.
+In contrast, under the test stated by the tribunal (para 36 above), direct involvement in the negotiation and performance of the contract is by itself said to raise the presumption of a common intention that the non signatory should be bound.
+The tribunals test represents, on its face, a low threshold, which, if correct, would raise a presumption that many third persons were party to contracts deliberately structured so that they were not party.
+Asked about the tribunals test, M. Vatier did not consider it accurate enough, adding that the principles adopted were in general the principles that might be adopted in French law.
+But they are too general.
+I consider that Aikens J was therefore correct to doubt (in para 148) whether the tribunal had applied a test which accords with that recognised under French law.
+Analysis of the history
+I turn to the conduct of the Government and the events on which the tribunal relied.
+As to the Ordinance, the tribunal said that it regarded the Governments organic control of the Trust as an element of evidence as to the true intention of the Defendant to run and control directly and indirectly the activities of the Trust, and to view such Trust as one of its instruments.
+Miss Heilbron accepts that Dallah cannot rely on the last ten words.
+Dallah is not advancing a case of agency, and the Ordinance does not support a case of agency.
+The tribunals comment at this point is on its face also inconsistent with the tribunals earlier references to the normality of the control established by the Ordinance (para 35 above).
+As to the negotiations leading up the Agreement, the courts below were in my view correct to observe that the fact that the Government was itself involved in negotiations and in the MOU and remained interested throughout in the project does not itself mean that the Government (or Dallah) intended that the Government should be party to the Agreement deliberately structured so as to be made, after the Trusts creation, between Dallah and the Trust.
+It does not appear that a French court would adopt any different attitude to governmental interest and involvement in the affairs of a state entity.
+An illustration of the careful analysis required in this context is provided by the decision of the Court of Appeal of Paris in the Pyramids case (above).
+Under Heads of Agreement signed by the Egyptian government through its Minister of Tourism, the Egyptian General Organisation for Tourism and Hotels (EGOTH) and the claimant, the government had committed itself to do the necessary work to acquire property near the Pyramids and EGOTH and the claimants undertook to form a company (to be owned 40/60 by EGOTH and the claimants) to develop a tourist centre on such property.
+A usufruct over the property was to be given to the company by the government and EGOTH, and the claimants were to be responsible for engineering, construction and architectural services, as well as financing.
+Subsequently, EGOTH and the claimants entered into a Supplemental Agreement which defined the project and their obligations and contained an ICC arbitration clause.
+Underneath their respective signatures on this agreement, the Minister of Tourism placed the words approved, agreed and ratified by the Minister of Tourism followed by his signature.
+A worldwide outcry led to the Egyptian authorities cancelling the project.
+The Paris Court of Appeal set aside an arbitral award against the state of Egypt, holding that the words and signature added by the Minister did not mean that the state was a party.
+They were added because the Ministry was responsible for supervising tourist sites and approving the creation of economic complexes and the creation, operation and management of hotels, and EGOTH and the claimants had specifically contemplated that their agreement would be subject to such approval.
+The added words and signature did not therefore indicate any intention to be bound and so to waive the states immunity.
+Here, the structure of the Agreement made clear that the Government was distancing itself from any direct contractual involvement: see per Aikens J, para 129 and Moore Bick LJ, para 32.
+The Governments only role under the Agreement (in the absence of any assignment or transfer under clause 27) was to guarantee the Trusts loan obligations and to receive a counter guarantee from the Trust and its trustee bank.
+Dallah was throughout this period advised by lawyers, Orr, Dignam & Co. The tribunal confined itself in relation to the Agreement to statements that (a) it was the Government which decided to delegate to the Trust the finalisation, signature and implementation of the Agreement, (b) the Government was contractually involved in the Agreement, as the Government was bound, under Article 2, to give its guarantee and (c) clause 27 authorised the Trust to assign its rights and obligations to the Government without Dallahs prior approval, such a clause being normally used only when the assignee is very closely linked to the assignor or is under its total control . (no doubt true, but on its face irrelevant to the issue).
+The delegate and bound tend to beg the issue, and nothing in these statements lends any support to Dallahs case that the Agreement evidences or is even consistent with an intention on the part of either Dallah or the Government that the Government should be party to the Agreement.
+Nowhere did the tribunal address the deliberate change in structure and in parties from the MOU to the Agreement, the potential significance of which must have been obvious to Dallah and its lawyers, but which they accepted without demur.
+As to performance of the Agreement, between April 1996 and September 1996, exchanges between Dallah and the Ministry of Religious Affairs (MORA) of the Government culminated in agreement that one of Dallahs associate companies, Al Baraka Islamic Investment Bank Ltd., should be appointed trustee bank to manage the Trusts fund as set out in each Ordinance (para 5 above), and in notification by letters dated 30 July and 9 September 1996 of such appointment by the Board of Trustees of the Trust.
+In subsequent letters dated 26 September and 4 November 1996, the MORA urged Mr Nackvi of the Dallah/Al Baraka group to give wide publicity to the appointment and to the savings schemes proposed to be floated for the benefit of intending Hujjaj.
+By letter dated 22 October 1996 Dallah submitted to the MORA a specimen financing agreement for the Trust (never in fact approved or agreed), under one term of which the Trust would have confirmed that it was under the control of the Government.
+The Governments position and involvement in all these respects is clear but understandable, and again adds little if any support to the case for saying that, despite the obvious inference to the contrary deriving from the Agreement itself, any party intended or believed that the Government should be or was party to the Agreement.
+The fact that the Trust never itself acquired any assets is neutral, since its acquisition of any property always depended upon the arrangement of financing through Dallah, which never occurred, and its acquisition of other funds was to depend on the savings and philanthropic schemes to be arranged through its trustee bank under the Ordinances, the time for which never came.
+It is scarcely surprising that in these circumstances the Trust never itself acquired its own letter paper, and letters recording its activity were, like those reporting decisions of its Board of Trustees, written on MORA letter paper.
+At the forefront of Dallahs factual case before the Supreme Court, as below, were exchanges and events subsequent to the Trusts demise.
+One letter in particular, dated 19 January 1997, was described in Dallahs written case as playing a pivotal role in, and in Miss Heilbrons oral submissions as key to the differing analyses of the tribunal and the courts below.
+The letter was written by Mr Lutfullah Mufti, signing himself simply as Secretary, on MORA letter paper, and faxed to Dallah on 20 January 1997.
+It read: Pursuant to the above mentioned Agreement for the leasing of housing facilities in the holy city of Makkah, Kingdom of Saudi Arabia, you were required within ninety (90) days of the execution of the said Agreement to get the detailed specifications and drawings approved by the Trust.
+However, since you have failed to submit the specifications and drawings for the approval of the Trust to date you are in breach of a fundamental term of the Agreement which tantamounts to a repudiation of the whole Agreement which repudiation is hereby accepted.
+Moreover, the effectiveness of the Agreement was conditional upon your arranging the requisite financing facility amounting to U.S. $100,000,000.00 within thirty (30) days of the execution of the Agreement and your failure to do so has prevented the Agreement from becoming effective and as such there is no Agreement in law.
+This is without prejudice to the rights and remedies which may be available to us under the law.
+Mr Lutfullah Mufti was secretary of MORA from 26 August 1993 to 19 December 1995 and from 23 December 1996 to 3 June 1998, and it will be recalled that, under each Ordinance, the secretary of MORA was at the same time secretary of the Trust.
+Also on 20 January 1997 Mr Mufti verified on oath the contents of a plaint issued in the name of the Trust as plaintiff to bring the first set of Pakistani proceedings against Dallah.
+The plaint set out the establishment of the Trust by Ordinance LXXXI of 1996 dated 12 August 1996 as a body having perpetual succession and asserted that Dallah had repudiated the Agreement by failing to submit detailed specifications and drawings within 90 days of the execution of the Agreement which repudiation was accordingly accepted by the plaintiff vide its letter dated 19.01.1997.
+The Trust sought a declaration that, in consequence of the accepted repudiation, the Agreement was not binding and is of no consequence upon the rights of the plaintiff and a permanent injunction restraining Dallah from claiming any right against the plaintiff.
+By an undated application, also verified by Mr Mufti, the Trust further sought an interlocutory injunction restraining Dallah from representing or holding out itself to have any contractual relation with the applicant on the basis of the aforesaid repudiated Agreement.
+Dallah made an application against the Trust for a stay of the Trusts proceedings in favour of arbitration under clause 23 of the Agreement.
+The application is missing from the bundle, but a written reply to it was put in on behalf of the Trust.
+This averred, in terms consistent with the stance taken in the plaint (though less obviously consistent with the principle of the separability of arbitration clauses), that since the plaintiff has challenged the very validity and existence of the agreement dated 10.09.1996, the instant application is, therefore, not maintainable.
+Mr Mufti deposed on oath that allegations evidently made by Dallah against the Trust in its application for a stay were false and that the facts stated in the plaint are true and correct to the best of my knowledge and belief and are reiterated.
+In early 1998, the first set of Pakistan proceedings were brought to an end by a judgment which commenced by recording that: Counsel for the defendant had objected at the last date of hearing that Awami Haj Trust was established [under section] 3 of the Awami Haj Trust Ordinance, 1996 but at the time of institution of this suit Ordinance had elapsed, there was no more ordinance in the field and suit has been filed on behalf of same which was formed under the Ordinance after the lapse of Ordinance.
+Awami Haj Trust is plaintiff in this suit.
+After the lapse of Ordinance, the present plaintiff was no more a legal person in the eye of law.
+The judge went on to record and reject the submission of counsel appearing for the Trust that the Trust continued to be able to file suit in respect of things done during the life of the Trust, adding: Moreover the things done during the Ordinance can be sued and can sue by the parent department for which this Ordinance was issued by the government and that was ministry for religious affairs.
+Suit should have been filed by the Ministry of religious affairs. [B]efore parting with this Order, I observe that the liabilities and duties against the present defendant can be agitated by the Ministry of Religious affairs government of Pakistan if any.
+Since the suit has not been filed by the legal person.
+The present plaintiff is no more a plaintiff in the eye of the law.
+Suit is dismissed.
+Dallah invoked ICC arbitration against the Government on 19 May 1998, on the basis that the Government was party to the Agreement.
+Notice of Dallahs request for arbitration was received by the Government on 29 May 1998, and on 2 June 1998 a second Pakistani suit was filed in the Governments name against Dallah, verified once again by Mr Mufti.
+Its terms were clearly drawn from those of the first suit, but it started by reciting that the Trust established under Ordinance no. LXXXI of 1996 no longer remained in field after the lapse of the Ordinance after four months, and that The present suit is, therefore, being filed by Pakistan who issued the said Ordinance.
+The plaint went on to recite the Agreement, variously referring to the parties to it, to the Trust as a party, to the plaintiff Trust, to the plaintiff and to Dallahs alleged repudiation which repudiation was accordingly accepted by the plaintiff vide its letter dated 19.01.1997.
+It further asserted that, on account of such repudiation, the Agreement is no longer binding on the plaintiff and then: 14.
+That in January 1997, Awami Hajj Trust instituted a civil suit for declaration and permanent injunction against the defendant which suit was, however, dismissed vide order dated 21.02.1998 on the ground that after the lapse of the Ordinance, Awami Hajj Trust was no more a legal person and it could neither sue or be sued.
+The learned civil court, however observed that liabilities and duties against the defendant can be agitated by the Government of Pakistan [sic].
+The plaint concluded by praying for a declaratory decree in favour of the plaintiff that the Agreement stands repudiated on account of default of the defendant . and the same, as such, is not binding and is of no consequence upon the rights of the plaintiff and by seeking a permanent injunction restraining Dallah from claiming any right against the plaintiff under the said Agreement or representing or holding out that it has any contractual relationship with the plaintiff.
+An interim injunction in the same terms was obtained on 2 June 1998.
+On 5 June 1998 the Government, through its advocates, wrote to the ICC informing it of the proceedings and the interim injunction as well as relying on s.35 of the Pakistan Arbitration Act 1940 in support of a contention that any further proceedings in the ICC arbitration would be invalid in the light of the Pakistan proceedings.
+Dallah responded to the second set of Pakistan proceedings on 12 June 1998 with an application for a stay for arbitration, asserting that the contract, admitted by the Plaintiff, which is complete, valid and fully effective between the parties, contains the following clause 23 ., which was then set out.
+It pointed out, no doubt correctly, that the Governments plaint must be seen as a riposte to the recently notified request for ICC arbitration.
+The Government replied on 27 June 1998 to the effect that there is no valid and effective Agreement between the parties.
+The application, as such, is incompetent and is liable to be dismissed.
+On 15 August 1998 the Governments advocates informed the ICC that the Government has already declined to submit to the jurisdiction of the International Court of Arbitration and spelled out that: There is no contract or any arbitration agreement between our client and Dallah .
+The contract and the arbitration agreement referred to by the Claimant were entered into between the Claimant and Awami Hajj Trust.
+The Trust has already ceased to exist after expiry of the period of the Ordinance under which it was established.
+By a judgment dated 18 September 1998, the judge in the second set of Pakistan proceedings dismissed Dallahs application for a stay for arbitration on the ground that Dallah had neither alleged nor placed on record any instrument of transfer of rights and obligations of the Trust in the name of the [Government], which was not therefore prima facie bound by the Agreement dated 10 September 1996.
+Dallah appealed on the ground that the Government was successor to the Trust, but on 14 January 1999 the Government withdrew its suit, as it was apparently entitled to, in view of its commencement of the third set of Pakistani proceedings.
+Dallah has disclaimed, both before the tribunal and before the English courts, any suggestion that these short lived and abortive proceedings could give rise to any estoppel on the issue of the tribunals jurisdiction.
+But Dallah relies on them in support of its current case of common intention.
+In the third set of proceedings the Government claimed against Dallah declarations to the effect, inter alia, that it was not successor to the Trust, had not taken over the Trusts responsibilities and was not a party to the Agreement or any arbitration agreement with Dallah.
+The claim was made under s.33 of the Arbitration Act 1940, which entitles a party to an arbitration agreement or any person claiming under such party to claim relief.
+Dallahs response was that, since the Government was denying that it was party to an arbitration agreement, it had no locus standi to make the claim.
+This response was upheld by judgment dated 19 June 1999, against the Governments argument that the purpose of s.33 was to enable a party alleged to be party to an arbitration agreement to seek the relief it claimed.
+An appeal by the Government to the Lahore High Court was dismissed, again on the basis that the Government was not a party to the Agreement or arbitration agreement.
+An appeal to the Pakistan Supreme Court has apparently remained unresolved.
+No evidence was adduced from Mr Mufti before Aikens J. Aikens J said, in relation to the letter dated 19 January 1997 that, logically Mr Mufti must, in fact, have been writing the letter in his capacity of Secretary to MORA, whatever he may have thought at the time, but Aikens J found it possible to get a clearer indication of the state of mind of the [Government] at this stage by reference to the proceedings begun by Mr Mufti on 20 January 1997 (paras 117, 119).
+These indicated, in Aikens Js view, that Mr Mufti thought that the Trust had rights it could enforce, and that there was no intention on the part of the Government to be bound by the Agreement or to step into the shoes of the Trust (para 119).
+The Court of Appeal took a slightly different view.
+It observed that the fact that, after the Trust ceased to exist, Mr Mufti could not have been writing (as opposed, I add, to purporting to write) as secretary to the Board of Trustees did not necessarily mean that he was writing on behalf of the Government or that the Government viewed itself as a party to the Agreement (Moore Bick LJ, para 36).
+Moore Bick LJ continued: If, as I think likely, the letter was written in ignorance that the Trust had ceased to exist, it is almost certain that Dallah was equally unaware of the fact and that it was read and understood as written on behalf of the Trust.
+Miss Heilbron challenges this reasoning as regards the Government, and invites attention to the letter on its face and to the Governments stance in the second set of Pakistan proceedings.
+But one obvious explanation of the letter, read with the first set of proceedings of which it was clearly the precursor, is that neither Mr Mufti nor indeed Dallah was at that stage conscious of the drastic effect under Pakistan law of the failure to repromulgate the Ordinance.
+Even if Mr Mufti was aware of the Trusts demise, he may well have believed (and one may understand why) that this could not affect the Trusts right to litigate matters arising during and out of the Trusts existence which was the stance taken by counsel for the Trust when Dallah eventually realised and pointed out that the Trust had lapsed.
+However that may be, it seems clear that Mr Mufti was in January 1997 acting on the basis that and as if the Trust existed.
+Further, Dallah clearly cannot have appreciated that the Trust had ceased to exist until a late stage in the course of the first set of Pakistan proceedings.
+The arbitral tribunal regarded the letter dated 19 January 1997 as very significant because it confirmed in the clearest way possible that the Defendant [the Government], after the elapse of the Trust, regarded the Agreement with the Claimant as its own and considered itself as a party to such Agreement (para 11 1).
+It went on to say that the Governments position in the arbitration: did not deal with the substance and contents of such letter, but was rather limited to a formal and very general challenge of the validity of said letter, on the ground that such letter was absolutely unauthorised, illegal and of no legal effect because all office bearers of the Trust, including the Secretary, had ceased to have any authority to act for the defunct Trust.
+Such challenge is however completely unfounded as the signatory of the letter of 19.1.97, Mr Lutfallah Mufti, did not sign such letter in his capacity as official of the Trust, to which anyhow the letter makes no reference at all, but in his capacity as Secretary of the Defendant i.e. the Ministry of Religious Affairs which is an integral part of the Government of Pakistan.
+As such, the signatory of the letter engages and binds the Government, as he has continued to bind it during the whole previous period where the Trust was in existence.
+Several features of the arbitral tribunals reliance on the letter are notable.
+First, the tribunal did not put the letter in its context.
+It did not mention the first set of proceedings at all in addressing the letters significance.
+In fact, it referred to those proceedings only once in its whole award.
+That was much earlier in para 5(c) where it recited three short submissions by the Government With respect to the effect of the legal proceedings in Pakistan.
+The first such submission read: The 1st [sic] January 1997 suit : Pakistan was not a party to such suit and as such it is not bound by any observation made by the Court in the said suit instituted by the defunct Trust. (In making this submission, the Government was evidently seeking to rebut a possible argument that it might be bound by the (obiter) observations of the judge in his judgment at the end of the first set of proceedings to the effect that the liabilities and duties against the present defendant can be agitated by the Ministry of Religious affairs government of Pakistan if any.
+It has not been, and could not have been suggested in the present proceedings that these observations in any way bind the Government.)
+Secondly, the tribunal rejected any idea that Mr Mufti was, when writing the letter, acting in a manner which was absolutely unauthorised, illegal and of no legal effect.
+But that, on any view, was precisely what Mr Mufti can be seen, with hindsight, to have been doing, on the same day as the letter was faxed, by commencing the first set of proceedings in the Trusts name.
+Thirdly, the tribunals comments on the letter assume that the Government or Mr Mufti on its behalf was aware of the elapse of the Trust and believed that this ended any possibility of the Trust taking any legal stance or proceedings.
+That, for reasons I have indicated, cannot have been the case.
+He must at least have believed that it was still possible for action to be taken in the Trusts name in respect of matters arising from the Agreement.
+Fourth, the tribunal, in this context as in others, did not address Dallahs state of mind, or its objective manifestation an important point when considering a test based on common intention.
+The letter dated 19 January 1997 and faxed on 20 January 1997 cannot be read in a vacuum, particularly when the issue is whether the parties shared a common intention, manifested objectively, to treat the Government as a or the real party to the Agreement and arbitration clause.
+Read in the objectively established context which I have indicated, it is clear that it was written and intended as a letter setting out the Trusts position by someone who believed that the Trust continued either to exist or at least to have a sufficient existence in law to enable it to take a position on matters arising when the Ordinance was in force.
+This is precisely how the plaint of 20 January 1997 put the matter when it said that the repudiation was accordingly accepted by the plaintiff [i.e. the Trust] vide its letter dated 19.01.1997.
+It makes no sense to suppose that Mr Mufti on one and the same day sent a letter intended to set out the Governments position and caused proceedings to be issued by the Trust on the basis that the letter was intended to set out the Trusts position.
+That Dallah also believed that the Trust continued to exist, certainly in a manner sufficient to enable it to pursue the proceedings, is confirmed by Dallahs application to stay the Trusts proceedings pending arbitration and is also (as I understood her) admitted by Miss Heilbron.
+The arbitral tribunal also relied on the second set of Pakistan proceedings and on the Governments letter dated 5 June 1998 to the tribunal.
+It saw Mr Muftis verification on oath of the plaint dated 2 June 1998 as an admission providing another piece of evidence to be added to the other pieces, as to the fact that the [Government] has always been and has considered itself a party to the agreement, and the letter as an admission that it was a party to such Agreement and that it could accept repudiation of the Agreement by [Dallah] (para 11 2).
+Aikens J and the Court of Appeal did not accept this analysis.
+They considered that the second set of proceedings viewed overall was premised on the basis that the Government had succeeded to the Trusts rights and obligations upon the Trusts demise, not that the Government had been a party to it always or at any previous date.
+The Government was taking up the suggestion of the judge who, when determining the first set of proceedings, had remarked that the liabilities and duties against the present defendant can be agitated by the Ministry of Religious affairs government of Pakistan if any.
+In my opinion this analysis is clearly correct.
+If the search is for confirmation of an intention to be or belief that the Government was party to the Agreement throughout, the second set of proceedings does not therefore advance the matter.
+Nor does the letter dated 5 June 1998.
+This was written to draw express attention to the second set of proceedings, and it recorded and attached a copy of the Pakistan judges injunction in them restraining Dallah from representing or holding out itself to have contractual relations with the applicant on the basis of the disputed contract.
+Further, nothing affirmed by the Government during the second set of proceedings or in the letter throws any light on Dallahs intention at any prior date, or therefore assists the case that there was any common intention that the Government should always be party to the Agreement.
+If the search is for an admission in or after June1998 that the Agreement or arbitration clause was binding on the Government, this is equally lacking.
+The Governments case in the second set of proceedings, and the gist of the injunction and the letter dated 5 June 1998 was that, although the Government could agitate the former Trusts rights and liabilities, the Governments acceptance of Dallahs alleged repudiation meant that the Agreement as such, is not binding and is of no consequence upon the rights of the [Government] (plaint of 20 January 1997).
+However questionable the proposition that an accepted repudiation renders the whole agreement (let alone an arbitration clause) not binding, that was the Governments case, and such a case is inconsistent with an intention to be party to the Agreement or agreement clause in or after June 1998.
+Further and in any event, a very short time afterwards on 15 August 1998 the Government wrote to the tribunal making clear also its current position that it had never been party to any contract or arbitration agreement with Dallah.
+Even if the Government could be treated in June as having made any relevant, short lived admission, it would in context and in the overall course of events be incapable of giving rise to any real inference that the Government had always intended or been intended to be a party to the Agreement.
+Finally, the search for a subjective common intention under the principle recognised by the French courts must be undertaken by examining, and so through the prism of, the parties conduct.
+Account will in that sense necessarily be taken of good faith.
+The tribunal also described the transnational general principles and usages, which it decided to apply, as reflecting the fundamental requirements of justice in international trade and the concept of good faith in business (award, section III (I)(4)), and this must also be true of the principle recognised by the French courts.
+As both Aikens J (para 130) and Moore Bick LJ (para 45) said, and in agreement on this point with Justice Dr Shah and Lord Mustill, if conduct interpreted as it would be understood in good faith does not indicate any such common intention, then it is impossible to see how a duty of good faith can operate to make someone a party to an arbitration who on other grounds could not be regarded as such (award, section (III)(III)(14)).
+This remains so, whatever comments might or might not be made about the Governments conduct in allowing the Trust to lapse without providing for the position following its lapse.
+In my view, the third re examination by this court, in the light of the whole history, of the issue whether the Government was party to the Agreement, and so to its arbitration clause, leads to no different answer to that reached in the courts below.
+The arbitral tribunals contrary reasoning is neither conclusive nor on examination persuasive in a contrary sense.
+As to the law, it is far from clear that the tribunal was directing its mind to common intention and, if it was, it approached the issue of common intention in terms differing significantly from those which a French court would adopt.
+In any event, as to the facts, there are a number of important respects in which the tribunals analysis of the Governments conduct and the course of events cannot be accepted, and this is most notably so in relation to the significance of the letter dated 19 January 1997 and the second set of proceedings in Pakistan.
+The upshot is that the course of events does not justify a conclusion that it was Dallahs and the Governments common intention or belief that the Government should be or was a party to the Agreement, when the Agreement was deliberately structured to be, and was agreed, between Dallah and the Trust.
+Discretion
+Dallah has a fall back argument, which has also failed in both courts below.
+It is that s.103(2) of the 1996 Act and Article V(1) of the New York Convention state that Recognition and enforcement of the award may be refused if the person against whom such is sought proves (or furnishes proof of) one of the specified matters.
+So, Miss Heilbron submits, it is open to a court which finds that there was no agreement to arbitrate to hold that an award made in purported pursuance of the non existent agreement should nonetheless be enforced.
+In Dardana Ltd v Yukos Oil Company [2002] 1 All ER (Comm) 819 I suggested that the word may could not have a purely discretionary force and must in this context have been designed to enable the court to consider other circumstances, which might on some recognisable legal principle affect the prima facie right to have enforcement or recognition refused (paras 8 and 18).
+I also suggested as possible examples of such circumstances another agreement or estoppel.
+S.103(2) and Article V in fact cover a wide spectrum of potential objections to enforcement or recognition, in relation to some of which it might be easier to invoke such discretion as the word may contains than it could be in any case where the objection is that there was never any applicable arbitration agreement between the parties to the award.
+Article II of the Convention and ss.100(2) and 102(1) of the 1996 Act serve to underline the (in any event obviously fundamental) requirement that there should be a valid and existing arbitration agreement behind an award sought to be enforced or recognised.
+Absent some fresh circumstance such as another agreement or an estoppel, it would be a remarkable state of affairs if the word may enabled a court to enforce or recognise an award which it found to have been made without jurisdiction, under whatever law it held ought to be recognised and applied to determine that issue.
+The factors relied upon by Dallah in support of its suggestion that a discretion should be exercised to enforce the present award amount for the most part to repetition of Dallahs arguments for saying that there was an arbitration agreement binding on the Government, or that an English court should do no more than consider whether there was a plausible or reasonably supportable basis for its case or for the tribunals conclusion that it had jurisdiction.
+But Dallah has lost on such points, and it is impossible to re deploy them here.
+The application of s.103(2) and Article V(1) must be approached on the basis that there was no arbitration agreement binding on the Government and that the tribunal acted without jurisdiction.
+General complaints that the Government did not behave well, unrelated to any known legal principle, are equally unavailing in a context where the Government has proved that it was not party to any arbitration agreement.
+There is here no scope for reliance upon any discretion to refuse enforcement which the word may may perhaps in some other contexts provide.
+Conclusion
+It follows that Aikens J and the Court of Appeal were right in the conclusions they reached and that Dallahs appeal to this Court must be dismissed.
+LORD COLLINS Introduction
+I agree that this appeal from the excellent judgments of Aikens J [2009] 1 All ER (Comm) 505 and the Court of Appeal [2010] 2 WLR 805 (with Moore Bick and Rix LJJ giving the reasons) should be dismissed.
+Because of the international importance of the issues on the appeal, I set out the steps which have led me to that conclusion.
+The final award is a Convention award which prima facie is entitled to enforcement in England under the Arbitration Act 1996, section 101(2).
+The principal issue is whether the courts below were right to find that the Government has proved that on the proper application of French law (as the law of the country where the award was made, since there is no indication in the Agreement as to the law governing the arbitration agreement), it is not bound by the arbitration agreement.
+To avoid any misunderstanding, it is important to dispel at once the mistaken notion (which has, it would appear, gained currency in the international arbitration world) that this is a case in which the courts below have recognised that the arbitral tribunal had correctly applied the correct legal test under French law.
+On the contrary, one of the principal questions before all courts in this jurisdiction has been whether the tribunal had applied French law principles correctly or at all.
+The main issue involves consideration of these questions: (a) the role of the doctrine that the arbitral tribunal has power to determine its own jurisdiction, or Kompetenz Kompetenz, or comptence comptence; (b) the application of arbitration agreements to non signatories (including States) in French law, and the role of transnational law or rules of law in French law; (c) whether renvoi is permitted under the New York Convention (and therefore the 1996 Act) and whether the application by an English court of a reference by French law to transnational law or rules of law is a case of renvoi.
+There is also a subsidiary issue as to whether, even if the Government has proved that it is not bound by the arbitration agreement, the court should exercise its discretion ( enforcement may be refused ) to enforce the award.
+By Article V(1)(a) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958: Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that: (a) the [arbitration] agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made;
+The New York Convention is given effect in the United Kingdom by Part III of the Arbitration Act 1996 (England and Wales and Northern Ireland) and by sections 18 to 22 of the Arbitration (Scotland) Act 2010.
+Article V(1)(a) of the New York Convention is transposed in England and Wales and Northern Ireland by section 103 of the 1996 Act, which provides: (1) Recognition or enforcement of a New York Convention award shall not be refused except in the following cases. (2) Recognition or enforcement of the award may be refused if the person against whom it is invoked proves (b) that the arbitration agreement was not valid under the law to which the parties subjected it or, failing any indication thereon, under the law of the country where the award was made;
+Although Article V(1)(a) (and section 103(2)(b)) deals expressly only with the case where the arbitration agreement is not valid, the consistent international practice shows that there is no doubt that it also covers the case where a party claims that the agreement is not binding on it because that party was never a party to the arbitration agreement.
+Thus in Dardana Ltd v Yukos Oil Co [2002] 2 Lloyds Rep 326 it was accepted by the Court of Appeal that section 103(2)(b) applied in a case where the question was whether a Swedish award was enforceable in England against Yukos on the basis that, although it was not a signatory, it had by its conduct rendered itself an additional party to the contract containing the arbitration agreement.
+In Sarhank Group v Oracle Corp, 404 F 3d 657 (2d Cir 2005) the issue, on the enforcement of an Egyptian award, was whether a non signatory parent company was bound by an arbitration agreement on the basis that its subsidiary, which had signed the agreement, was a mere shell; and in China Minmetals Materials Import and Export Co Ltd v Chei Mei Corpn, 334 F 3d 274 (3d Cir 2003) enforcement of a Chinese award was resisted on the ground that the agreement was a forgery.
+See also Born, International Commercial Arbitration (2009), pp 2778 2779.
+In this case, because there was no indication by the parties of the law to which the arbitration agreement was subject, French law as the law of the country where the award was made, is the applicable law, subject to the relevance of transnational law or transnational rules under French law.
+II The applicable principles
+Kompetenz Kompetenz or comptence comptence as a general principle
+A central part of this appeal concerns the authority to be given to the decision of the arbitral tribunal as to its own jurisdiction, and the relevance in this connection of the doctrine of Kompetenz Kompetenz or comptence comptence.
+These terms may be comparatively new but the essence of what they express is old.
+The principle was well established in international arbitration under public international law by the 18th century.
+In the famous case of The Betsy (1797) the question was raised as to the power of the commissioners under the Mixed Commissions organised under the Jay Treaty between United States and Great Britain of 19 November 1794 to determine their own jurisdiction.
+On 26 December 1796 Lord Loughborough LC had a meeting at his house with the American Commissioners and the American Ambassador.
+The Lord Chancellor expressed the view that the doubt respecting the authority of the commissioners to settle their own jurisdiction, was absurd; and that they must necessarily decide upon cases being within, or without, their competency: Moore, History and Digest of International Arbitrations to which the United States has been a Party, Vol 1 (1898), p 327.
+While the point was under discussion, the American Commissioners filed opinions.
+Mr. Christopher Gore, the eminent American Commissioner, said: A power to decide whether a Claim preferred to this Board is within its Jurisdiction, appears to me inherent in its very Constitution, and indispensably necessary to the discharge of any of its duties: Moore, op cit, Vol.3 (1898), p 2278.
+The principle has been recognised by the Permanent Court of International Justice and the International Court of Justice: Rosenne, The Law and Practice of the International Court 1920 1996 (3rd ed 1997), Vol II, pp 846 et seq.
+In the Advisory Opinion on the Interpretation of the Greco Turkish Agreement (1928) Series B No 16, 20, the Permanent Court of International Justice said: as a general rule, any body possessing jurisdictional powers has the right in the first place itself to determine the extent of its jurisdiction .
+In the Nottebohm case (Liechtenstein v Guatemala), 1953 ICJ Rep 111, 119, the International Court of Justice, after referring to the Alabama case in 1872, and the views of the rapporteur of the Hague Convention of 1899 for the Pacific Settlement of International Disputes, said: it has been generally recognised.thatan international tribunal has the right to decide as to its own jurisdiction.
+The principle has been recognised also by the European Court of Justice.
+In West Tankers Inc v Allianz SpA (formerly Ras Riunione Adriatica di Sicurta SpA) (Case C 185/07) [2009] ECR I 663, [2009] AC 1138, para 57, it referred to the general principle that every court is entitled to examine its own jurisdiction (doctrine of Kompetenz Kompetenz).
+The principle that a tribunal has jurisdiction to determine its own jurisdiction does not deal with, or still less answer, the question whether the tribunals determination of its own jurisdiction is subject to review, or, if it is subject to review, what that level of review is or should be.
+Thus the International Courts decision on jurisdiction is not subject to recourse, although the State which denies its jurisdiction may decline to take any part at all in the proceedings (as in the Fisheries Jurisdiction cases (Federal Republic of Germany v Iceland; United Kingdom v Iceland), 1972 1974), or to take any further part after it has failed in its objections to the jurisdiction (as in Military and Paramilitary Activities in and against Nicaragua case (Nicaragua v United States, 1986).
+By contrast, a decision of an ICSID tribunal (which shall be the judge of its own competence: Article 41(1) of the ICSID Convention) is subject to annulment on the grounds (inter alia) that the tribunal manifestly exceeded its powers (article 52(1)(b)), which includes lack of jurisdiction: Klckner v Cameroon, Decision on Annulment, 2 ICSID Rep 95; Schreuer, The ICSID Convention: A Commentary (2nd ed 2009), pp 943 947.
+The principle in international commercial arbitration
+So also the principle that a tribunal in an international commercial arbitration has the power to consider its own jurisdiction is no doubt a general principle of law.
+It is a principle which is connected with, but not dependant upon, the principle that the arbitration agreement is separate from the contract of which it normally forms a part.
+But it does not follow that the tribunal has the exclusive power to determine its own jurisdiction, nor does it follow that the court of the seat may not determine whether the tribunal has jurisdiction before the tribunal has ruled on it.
+Nor does it follow that the question of jurisdiction may not be re examined by the supervisory court of the seat in a challenge to the tribunals ruling on jurisdiction.
+Still less does it mean that when the award comes to be enforced in another country, the foreign court may not re examine the jurisdiction of the tribunal.
+Thus Article 16(1) of the UNCITRAL Model Law on International Commercial Arbitration provides that the arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement.
+But by article 34(2) an arbitral award may be set aside by the court of the seat if an applicant furnishes proof that the agreement is not valid under the law to which the parties have subjected it, or, failing any indication thereon, under the law of the seat (and see also article 36(1)(a)(i)).
+Articles V and VI of the European Convention on International Commercial Arbitration of 1961 also preserve the respective rights of the tribunal and of the court to consider the question of the jurisdiction of the arbitrator.
+Comparative procedure
+Consequently in most national systems, arbitral tribunals are entitled to consider their own jurisdiction, and to do so in the form of an award.
+But the last word as to whether or not an alleged arbitral tribunal actually has jurisdiction will lie with a court, either in a challenge brought before the courts of the arbitral seat, where the determination may be set aside or annulled, or in a challenge to recognition or enforcement abroad.
+The degree of scrutiny, particularly as regards the factual enquiry, will depend on national law, subject to applicable international conventions.
+There was sometimes said to be a rule in German law that an arbitral tribunal had the power to make a final ruling on its jurisdiction without any court control, but if it ever existed, there is no longer any such rule: Poudret and Besson, Comparative Law of International Arbitration (2nd ed 2007), para 457; Born, International Commercial Arbitration, vol I (2009), pp 907 910.
+In France the combined effect of articles 1458, 1466 and 1495 of the New Code of Civil Procedure (NCPC) is that, in an international arbitration conducted in France, the tribunal has power to rule on its jurisdiction if it is challenged.
+If judicial proceedings are brought in alleged breach of an arbitration agreement the court must declare that it has no jurisdiction unless the jurisdiction agreement is manifestly a nullity: Fouchard, Gaillard, Goldman, International Commercial Arbitration (ed Gaillard and Savage 1999), paras 655, 672; Delvolv, Pointon and Rouche, French Arbitration Law and Practice (2nd ed. 2009), paras 139 et seq, 172 et seq; and eg Soc Laviosa Chimica Mineraria v Soc Afitex, Cour de cassation, 11 February 2009, 2009 Rev Arb 155 (Vu le principe comptence comptence selon lequel il appartient larbitre de statuer par priorit sur sa propre competence).
+But the position is different once the arbitral tribunal has ruled on its jurisdiction.
+Its decision is not final and can be reviewed by the court hearing an action to set it aside.
+The French Cour dappel seised of an action for annulment of an award made in France for lack of jurisdiction, or seised with an issue relating to the jurisdiction of a foreign tribunal or an appeal against an exequatur granted in respect of a foreign award, has the widest power to investigate the facts: Fouchard, Gaillard, Goldman, paras 1605 to 1614; Delvolv, Pointon and Rouche, para 426.
+In the Pyramids case (Rpublique Arabe dEgypte v Southern Pacific Properties Ltd, Paris Cour dappel, 12 July 1984 (1985) 10 Yb Comm Arb 113; Cour de cassation, 6 January 1987 (1987) 26 ILM 1004) the question was whether a distinguished tribunal had been entitled to find that Egypt (as opposed to a State owned entity responsible for tourism) was a party to an arbitration agreement.
+The Cour dappel said that the arbitral tribunal had no power finally to decide the issue of its jurisdiction; if it decided the issue of the existence or of the validity of the arbitration agreement, nevertheless it only decided this question subject to the decision of the court on an application for the annulment of the award pursuant to article 1504, NCPC.
+The Cour de cassation confirmed that the Cour dappel had been entitled de rechercher en droit et en fait tous les elements concernant les vices en question en particulier, il lui appartient dinterprter le contrat pour apprcier elle mme si larbitre a statu sans convention darbitrage. (to examine as a matter of law and as a matter of fact all circumstances relevant to the alleged defects in particular, it is for the court to construe the contract in order to determine itself whether the arbitrator ruled in the absence of an arbitration agreement.)
+First Options of Chicago Inc v Kaplan, 514 US 938 (1995) was not an international case.
+It concerned the application of the Federal Arbitration Act to an award of an arbitral panel of the Philadelphia Stock Exchange.
+The question was whether the federal District Court should independently decide whether the arbitral panel had jurisdiction.
+The United States Supreme Court drew a distinction between the case where the parties had agreed to submit the arbitrability question itself to arbitration, and the case where they had not.
+In the former case the court should give considerable leeway to the arbitrator, setting aside the award only in certain narrow circumstances, but (at 943, per Breyer J): If, on the other hand, the parties did not agree to submit the arbitrability question itself to arbitration, then the court should decide that question just as it would decide any other question that the parties did not submit to arbitration, namely, independently.
+That flowed inexorably from the fact that arbitration was simply a matter of contract between the parties and was a way to resolve those disputes, but only those disputes, that the parties had agreed to submit to arbitration.
+This decision was applied in the international context, in connection with the enforcement of a CIETAC award, in China Minmetals Materials Import and Export Co Ltd v Chei Mei Corpn, 334 F 3d 274 (3d Cir 2003) in which Minmetals, a Chinese corporation, sought to enforce a CIETAC award against Chei Mei, a New Jersey corporation.
+Chei Mei resisted enforcement on the ground that the contract containing the arbitration clause had been forged.
+The tribunal had held that Chei Mei failed to show that the contracts were forged, but that even if its signature and stamp had been forged, it had taken various steps which confirmed its adherence to the arbitration agreement.
+The Court of Appeals for the Third Circuit decided that the court asked to enforce an award may determine independently the arbitrability of the dispute.
+After an illuminating discussion of the doctrine of comptence comptence and kompetenz kompetenz, it concluded (at 288, citing Park, Determining Arbitral Jurisdiction: Allocation of Tasks Between Courts and Arbitrators (1997) 8 Am Rev Int Arb 133, 140 142) that it appears that every country adhering to the competence competence principle allows some form of judicial review of the arbitrators jurisdictional decision where the party seeking to avoid enforcement of an award argues that no valid arbitration agreement ever existed.
+The court said (ibid): After all, a contract cannot give an arbitral body any power, much less the power to determine its own jurisdiction, if the parties never entered into it.
+The position in England
+Prior to the 1996 Act the leading authority in England was Christopher Brown Ltd v Genossenschaft Osterreichischer [1954] 1 QB 8, in which Devlin J said (at pp 12 13): It is not the law that arbitrators, if their jurisdiction is challenged or questioned, are bound immediately to refuse to act until their jurisdiction has been determined by some court which has power to determine it finally.
+Nor is it the law that they are bound to go on without investigating the merits of the challenge and to determine the matter in dispute, leaving the question of their jurisdiction to be held over until it is determined by some court which had power to determine it.
+They might then be merely wasting their time and everybody elses.
+They are not obliged to take either of those courses.
+They are entitled to inquire into the merits of the issue whether they have jurisdiction or not, not for the purpose of reaching any conclusion which will be binding upon the parties because that they cannot do but for the purpose of satisfying themselves as a preliminary matter whether they ought to go on with the arbitration or not.
+If it became abundantly clear to them, on looking into the matter, that they obviously had no jurisdiction as, for example, it would be if the submission which was produced was not signed, or not properly executed, or something of that sort, then they might well take the view that they were not going to go on with the hearing at all.
+They are entitled, in short, to make their own inquiries in order to determine their own course of action, and the result of that inquiry has no effect whatsoever upon the rights of the parties.
+The DTI Departmental Advisory Committee in its February 1994 Report on a draft Arbitration Bill said: [The German] doctrine of Kompetenz Kompetenz resolves logical difficulties in legal systems where the jurisdiction of state courts and the jurisdiction of arbitrators under a valid arbitration agreement are mutually exclusive in legal theory.
+In these legal systems, the state courts must dismiss legal proceedings brought in violation of a valid arbitration agreement, thereby retaining no competence over the parties but in the case of an invalid or non existent arbitration agreement, the arbitrators can have no jurisdiction at all.
+Who then decides what and in what order in the absence of a suitable doctrine of Kompetenz Kompetenz? In contrast, the courts of most common law countries (including England) merely stay legal proceedings because in legal theory an arbitration agreement can never oust the Courts jurisdiction over the parties; and this logical problem over jurisdiction has not arisen in the same form For these reasons, the law and practice of English arbitration does not require an express doctrine of Kompetenz Kompetenz.
+English law achieves the same result as the German doctrine by a different route. [T]he practice of arbitration tribunals determining their own jurisdiction, subject to the final decision of the English Court, has long been settled in England . (Ch III, pp 4 5)
+The position in England under the Arbitration Act 1996 as regards arbitrations the seat of which is in England is as follows.
+By section 30(1) of the 1996 Act, which is headed Competence of tribunal to rule on its own jurisdiction the arbitral tribunal may rule on its own substantive jurisdiction, including the question whether there is a valid arbitration agreement.
+By section 30(2) any such ruling may be challenged (among other circumstances) in accordance with the provisions of the Act.
+Section 32 gives the court jurisdiction to determine any preliminary point on jurisdiction but only if made with the agreement of all parties or with the permission of the tribunal, and the court is satisfied (among other conditions) that there is good reason why the matter should be decided by the court.
+By section 67 a party to arbitral proceedings may challenge any award of the tribunal as to its substantive jurisdiction but the arbitral tribunal may continue the arbitral proceedings and make a further award while an application to the court is pending in relation to an award as to jurisdiction.
+The equivalent provisions in Scotland are in the Arbitration (Scotland) Act 2010, Sched 1, Rules 19, 42 (not limited to jurisdiction), and 67.
+The consistent practice of the courts in England has been that they will examine or re examine for themselves the jurisdiction of arbitrators.
+This can arise in a variety of contexts, including a challenge to the tribunals jurisdiction under section 67 of the 1996 Act, or in an application to stay judicial proceedings on the ground that the parties have agreed to arbitrate.
+Thus in Azov Shipping Co v Baltic Shipping Co [1999] 1 Lloyds Rep 68 Rix J decided that where there was a substantial issue of fact as to whether a party had entered into an arbitration agreement, then even if there had already been a full hearing before the arbitrator the court, on a challenge under section 67, should not be in a worse position than the arbitrator for the purpose of determining the challenge.
+This decision has been consistently applied at first instance (see, eg, Peterson Farms Inc v C&M Farming Ltd [2004] EWHC 121 (Comm), [2004] 1 Lloyds Rep 603) and is plainly right.
+Where there is an application to stay proceedings under section 9 of the 1996 Act, both in international and domestic cases, the court will determine the issue of whether there ever was an agreement to arbitrate: Al Naimi (t/a Buildmaster Construction Services) v Islamic Press Agency [2000] 1 Lloyds Rep 522 (CA) (English arbitration); Albon (t/a NA Carriage Co) v Naza Motor Trading Sdn Bhd (No 4) [2007] EWCA Civ 1124, [2008] 1 Lloyds Rep 1 (Malaysian arbitration).
+So also where an injunction was refused restraining an arbitrator from ruling on his own jurisdiction in a Geneva arbitration, the Court of Appeal recognised that the arbitrator could consider the question of his own jurisdiction, but that would only be a first step in determining that question, whether the subsequent steps took place in Switzerland or in England: Weissfisch v Julius [2006] EWCA Civ 218, [2006] 1 Lloyds Rep 716, para 32.
+Consequently, in an international commercial arbitration a party which objects to the jurisdiction of the tribunal has two options.
+It can challenge the tribunals jurisdiction in the courts of the arbitral seat; and it can resist enforcement in the court before which the award is brought for recognition and enforcement.
+These two options are not mutually exclusive, although in some cases a determination by the court of the seat may give rise to an issue estoppel or other preclusive effect in the court in which enforcement is sought.
+The fact that jurisdiction can no longer be challenged in the courts of the seat does not preclude consideration of the tribunals jurisdiction by the enforcing court: see, e.g. Svenska Petroleum Exploration AB v Government of the Republic of Lithuania (No 2) [2006] EWCA Civ 1529, [2007] QB 886, para 104; Paklito Investment Ltd v Klockner East Asia Ltd [1993] 2 HKLR 39, 48, per Kaplan J.
+The application of the principles in the present case
+Dallahs argument is that the enforcing court, faced with a decision by the tribunal that it has jurisdiction, should only conduct a limited review.
+The argument is essentially this: (1) The arbitral tribunal remained a competent tribunal to determine its own jurisdiction, whether or not it determined it wrongly. (2) The first partial award was made with jurisdiction i.e. the Kompetenz Kompetenz jurisdiction, even if (on the English courts view) the later awards relating to the merits were subsequently found to be made without substantive jurisdiction. (3) It is universally accepted that an enforcing court cannot review the merits of an award, and a de novo rehearing at the enforcement stage (by contrast with an application to set aside at the seat of the arbitration) adds a fact finding layer to the process which was not envisaged by those drafting the New York Convention and which undermines the finality and efficiency of the system. (4) The review envisaged by the New York Convention is premised on the need to ensure that there is not a grave departure from the basic precepts of international arbitration and fairness and basic concepts of justice. (5) The award is itself an evidential element of the reviewing process, and deference must be given to such an award by the reviewing/enforcing court. (6) The degree of deference may vary according to many factors, for example, the experience of the tribunal or the nature of the underlying decision, such as whether it was one of fact or law or mixed fact and law, and enforcing courts must be particularly wary where, as here, the underlying decision is fact based or a case of mixed fact and law. (7) Where, as here, there is no dispute as to the underlying facts or law such that the decision is one upon which different tribunals can legitimately come to different conclusions, enforcing national courts should be slow to substitute their own interpretation unless it can be shown that the tribunals decision was unsustainable, and this is particularly so where, as in this case, the resisting party has offered no new evidence. (8) In essence the issue in this case is whether the English court should refuse to enforce the award on the basis that its views and interpretation of the same facts, applying the same principles of law, should be preferred to the decision of a former Law Lord and a doyen of international arbitration, a former Chief Justice of Pakistan and an eminent Lebanese lawyer.
+Dallah relies in particular on international authorities relating to applications to annul awards on the basis that the matters decided by the arbitral tribunal exceeded the scope of the submission to arbitration: article V(1)(c) of the New York Convention; article 34 of the UNCITRAL Model Law.
+In Parsons & Whittemore Overseas Co Inc v Soc Gn de lIndustrie du Papier, 508 F 2d 969 (2d Cir 1974) the Court of Appeals for the Second Circuit, in dealing with an attack on a Convention award based on Article V(1)(c), said (at p 976) that the objecting party must overcome a powerful presumption that the arbitral body acted within its powers.
+That statement was applied by the British Columbia Court of Appeal, in a case under article 34 of the Model Law as enacted by the International Commercial Arbitration Act, SBC 1986: Quintette Coal Ltd v Nippon Steel Corpn [1991] 1 WWR 219 (BCCA).
+These cases are of no assistance in the context of a challenge based on the initial jurisdiction of the tribunal and in particular when it is said that a party did not agree to arbitration.
+Nor is any assistance to be derived from Dallahs concept of deference to the tribunals decision.
+There is simply no basis for departing from the plain language of article V(1)(a) as incorporated by section 103(2)(b).
+It is true that the trend, both national and international, is to limit reconsideration of the findings of arbitral tribunals, both in fact and in law.
+It is also true that the Convention introduced a pro enforcement policy for the recognition and enforcement of arbitral awards.
+The New York Convention took a number of significant steps to promote the enforceability of awards.
+The Geneva Convention placed upon the party seeking enforcement the burden of proving the conditions necessary for enforcement, one of which was that the award had to have become final in the country in which it was made.
+In practice in some countries it was thought that that could be done only by producing an order for leave to enforce (such as an exequatur) and then seeking a similar order in the country in which enforcement was sought, hence the notion of double exequatur (but in England it was decided, as late as 1959, that a foreign order was not required for the enforcement of a Geneva Convention award under the Arbitration Act 1950, section 37: Union Nationale des Co opratives Agricoles des Crales v Robert Catterall & Co Ltd [1959] 2 QB 44).
+The New York Convention does not require double exequatur and the burden of proving the grounds for non enforcement is firmly on the party resisting enforcement.
+Those grounds are exhaustive.
+But article V safeguards fundamental rights including the right of a party which has not agreed to arbitration to object to the jurisdiction of the tribunal.
+As van den Berg, The New York Arbitration Convention of 1958 (1981) puts it, at p 265: In fact, the grounds for refusal of enforcement are restricted to causes which may be considered as serious defects in the arbitration and award: the invalidity of the arbitration agreement, the violation of due process, the award extra or ultra petita, the irregularity in the composition of the arbitral tribunal or the arbitral procedure, the non binding force of the award, the setting aside of the award in the country of origin, and the violation of public policy.
+In Kanoria v Guinness [2006] 1 Lloyds Rep 701, 706, May LJ said that section 103(2) concerns matters that go to the fundamental structural integrity of the arbitration proceedings.
+Nor is there anything to support Dallahs theory that the New York Convention accords primacy to the courts of the arbitral seat, in the sense that the supervisory court should be the only court entitled to carry out a re hearing of the issue of the existence of a valid arbitration agreement; and that the exclusivity of the supervisory court in this regard ensures uniformity of application of the Convention.
+There is nothing in the Convention which imposes an obligation on a party seeking to resist an award on the ground of the non existence of an arbitration agreement to challenge the award before the courts of the seat.
+It follows that the English court is entitled (and indeed bound) to revisit the question of the tribunals decision on jurisdiction if the party resisting enforcement seeks to prove that there was no arbitration agreement binding upon it under the law of the country where the award was made.
+Arbitration agreements and non signatories: groups of companies/State owned
+entities and States
+One of the most controversial issues in international commercial arbitration is the effect of arbitration agreements on non signatories: among many others see, eg, Hanotiau, Non Signatories in International Arbitration: Lessons from Thirty Years of Case Law, in International Arbitration 2006: Back to Basics? (2007, ed van den Berg), p 341; Park, Non signatories and International Contracts: An Arbitrators Dilemma, in Multiple Party Actions in International Arbitration (ed Macmahon, Permanent Court of Arbitration, 2009), p 1.
+The issue has arisen frequently in two contexts: the first is the context of groups of companies where non signatories in the group may seek to take advantage of the arbitration agreement, or where the other party may seek to bind them to it.
+The second context is where a State owned entity with separate legal personality is the signatory and it is sought to bind the State to the arbitration agreement.
+Arbitration is a consensual process, and in each type of case the result will depend on a combination of (a) the applicable law; (b) the legal principle which that law uses to supply the answer (which may include agency, alter ego, estoppel, third party beneficiary); and (c) the facts of the individual case.
+One of the decisions in the field of groups of companies best known internationally is the Dow Chemical case in France, which arose in the context of the setting aside of a French award.
+The arbitrators (Professors Sanders, Goldman and Vasseur: (1984) 9 Yb Comm Arb 131) decided that non signatory companies in a group could rely on an arbitration clause in contracts between Isover St Gobain and two Dow Chemical group companies.
+The tribunal said that a group of companies constituted one and the same economic reality (une realit conomique unique) of which the tribunal should take account when it ruled on its jurisdiction.
+It decided that it was the mutual intention of all parties that the group companies should have been real parties to the agreement.
+They relied in particular on the fact that group companies participated in the conclusion, performance and termination of the contract, and on the economic reality and needs of international commerce.
+The Paris Cour dappel rejected an application to set aside the award: the effect of the ICC Rules was that the tribunal was bound to take account of the will of the parties and of trade usages; in the light of the agreements and of the documents exchanged in the course of their conclusion and termination, the tribunal had given relevant and consistent reasons for deciding that it was the joint intention of the parties that Dow Chemicals France and Dow Chemical Company had been parties to the agreements (and therefore to the arbitration agreements) although they had not physically signed them.
+The court also mentioned that as a subsidiary reason the tribunal had invoked the notion of the group of companies, which had not been seriously disputed by Isover St Gobain: Soc.
+Isover Saint Gobain v Soc.
+Dow Chemical France, 21 October 1983, 1984 Rev Arb 98.
+For other cases see, eg, Redfern and Hunter, International Arbitration (5th ed 2009, ed Blackaby and Partasides), paras 2.44 2.45; Wilske, Shore and Ahrens, The Group of Companies Doctrine Where is it heading? (2006) 17 Am Rev Int Arb 73.
+As regards States, the Pyramids case (Rpublique Arabe dEgypte v Southern Pacific Properties Ltd, above, para 89) was also a case of setting aside rather than enforcement of a foreign award.
+A company incorporated in Hong Kong (SPP) signed an agreement with an Egyptian state owned entity responsible for tourism (EGOTH).
+The contract referred to a pre existing framework contract between the same parties and the Egyptian Government concerning the construction of two tourist centres, one of which was located near the Pyramids.
+The contract contained an ICC arbitration clause with Paris as the seat.
+The last page of the agreement contained the words approved, agreed and ratified followed by the signature of the Egyptian Minister for Tourism.
+After political opposition to the project, the Egyptian authorities cancelled it, and SPP initiated arbitration proceedings against both EGOTH and Egypt.
+The arbitral tribunal, with Professor Giorgio Bernini as Chairman, ruled that it had jurisdiction, because, although acceptance of an arbitration clause had to be clear and unequivocal, there was no ambiguity since the Government, in becoming a party to the agreement, could not reasonably have doubted that it would be bound by the arbitration clause contained in it.
+The Egyptian Government brought proceedings in France to set aside the award.
+The combined effect of articles 1502 and 1504, NCPC, is that the French court may set aside an award made in France in an international arbitration on the ground that there is no arbitration agreement.
+The Paris Cour dappel held that the Government was not a party to the arbitration agreement because the words under the Ministers signature were to be read in the light of Egyptian legislation which simply gave the Minister the power to approve construction and in the light of a declaration by the signatories that the obligations assumed by EGOTH would be subject to approval by the relevant government authorities.
+Subsequently an ICSID Tribunal found that it had jurisdiction and awarded the claimants $27m: 3 ICSID Rep 131 and 189.
+See also the Westland case in the Swiss courts, involving the application of an arbitration agreement in a contract between Westland Helicopters and the Arab Organisation for Industrialisation to the organisations member States: (1991) 16 Yb Comm Arb 174; and Lew, Mistelis and Krll, Comparative International Commercial Arbitration (2003), paras 27 26 et seq; Westland Helicopters Ltd v Arab Organisation for Industrialisation [1995] QB 282.
+An example in England of a foreign award prior to the present case is Svenska Petroleum Exploration AB v Government of the Republic of Lithuania (No 2) [2006] EWCA Civ 1529, [2007] QB 886, where the Court of Appeal, after a review of the principal arbitral decisions, confirmed (at para 81 et seq) that a government is not to be taken to be a party to an agreement or to have submitted to arbitration simply because it has put forward a state organisation to contract with a foreign investor.
+But on the facts the Government had agreed to ICC arbitration in Denmark.
+French law and transnational law
+The Joint Memorandum of the experts stated (para 2.8): Under French law, the existence, validity and effectiveness of an arbitration agreement in an international arbitration need not be assessed on the basis of national law, be it the law applicable to the main contract or any other law and can be determined according to rules of transnational law.
+To this extent, it is open to an international arbitral tribunal the seat of which is in Paris to find that the arbitration agreement is governed by transnational law.
+The notion in French law that an arbitration clause may be valid independently of a reference to national law goes back to the decisions of the Cour de cassation in Hecht v Buismans, 4 July 1972, 1974 Rev Crit 82 and of the Paris Cour dappel in Menicucci v Mahieux, 13 December 1975, 1976 Rev Crit 507: see Fouchard, Gaillard, Goldman, para 418; Poudret and Besson, para 180.
+In the Dow Chemical case the Paris Cour dappel (21 October 1983, 1984 Rev Arb 98) said that the arbitral tribunal could decide on its competence without reference to French law, and could rely on the notion of the group of companies as a customary practice in international trade.
+In the Dalico case (Municipalit de Khoms El Mergeb v Soc Dalico, 20 December 1993, 1994 Rev Arb 116) the Cour de cassation was concerned with an application to set aside an award in which an arbitral tribunal had upheld the existence and validity of an arbitration clause in a document annexed to a works contract between a Libyan municipal authority and a Danish company (Dalico).
+The main contract was subject to Libyan law and stipulated standard terms and conditions, amplified or amended by an annex, which formed part of the contract.
+The standard terms and conditions conferred jurisdiction on the Libyan courts, but the annex amended them by providing for international arbitration.
+Dalico referred the dispute to arbitration and obtained an award against the Libyan municipal authority.
+An action to set aside the award was brought before the Paris Cour dappel.
+The court dismissed the application to set aside, relying in particular on the fact that the principle of the autonomy of the arbitration agreement confirms the independence of the arbitration clause, not only from the substantive provisions of the contract to which it relates, but also from a domestic law applicable to that contract.
+The court held that the wording of the documents revealed the parties intention to submit their dispute to arbitration.
+The Cour de cassation dismissed an appeal, emphasising that the Cour dappel justified its decision in law by establishing the existence of the arbitration agreement without reference to Libyan law, which governed the contract.
+The Cour de cassation said, at p 117: en vertu dune rgle matrielle du droit international de larbitrage, la clause compromissoire est indpendante juridiquement du contrat principal qui la contient directement ou par rfrence et que son existence et son efficacit sapprcient, sous rserve des rgles imperatives de droit franais et de lordre public international, daprs la commune volont des parties, sans quil soit ncessaire de se rfrer une loi tatique . (by virtue of a substantive rule of international arbitration, the arbitration agreement is legally independent of the main contract containing or referring to it, and the existence and effectiveness of the arbitration agreement are to be assessed, subject to the mandatory rules of French law and international public policy, on the basis of the parties common intention, there being no need to refer to any national law.).
+On this case see Fouchard, Gaillard, Goldman, paras 388, 452.
+The fact that the experts were agreed that an arbitral tribunal with a French seat may apply transnational law or transnational rules to the validity of an arbitration agreement does not mean that a French court would not be applying French law or that it is no longer a French arbitration.
+It simply means that the arbitration agreement is no longer affected by the idiosyncrasies of local law, and its validity is examined solely by reference to the French conception of international public policy: Fouchard, Gaillard, Goldman, paras 420, 441.
+As Poudret and Besson put it (at para 181): The result of this case law is that the arbitration agreement is subjected to a material rule which recognises its validity provided it does not violate international public policy.
+Although this has been the subject of controversy, the rule is an international rule of French law and not a transnational rule.
+Nor could there be any suggestion that the application of transnational law or transnational rules could displace the applicability in England, under article V(1)(a) of the New York Convention as enacted by section 103(2)(b) of the 1996 Act, of the law of the place where the award is made.
+This case does not therefore raise the controversial question of delocalisation of the arbitral process which has been current since the 1950s.
+It started with the pioneering work of Professor Berthold Goldman, Professor Pierre Lalive and Professor Clive Schmitthoff, which was mainly devoted to the question of disconnecting the substantive governing law in international commercial arbitration from national substantive law.
+It expanded to promotion of the notion that international arbitration is, or should be, free from the controls of national law, or as Lord Mustill put it in SA Coppe Lavalin NV v Ken Ren Chemicals and Fertilizers Ltd [1995] 1 AC 38, 52, a self contained juridical system, by its very nature separate from national systems of law: see, among many others, Lew, Achieving the Dream: Autonomous Arbitration (2006) 22 Arb Int 179; Gaillard, Legal Theory of International Arbitration (2010); Paulsson, Arbitration in Three Dimensions (LSE Law, Society and Economy Working Papers 2/2010); the older material cited in Dicey, Morris and Collins, The Conflict of Laws (14th ed 2006), para 16 032; and the cases on the enforcement in France of awards which have been annulled in the country where they were rendered on the basis that they were international awards which were not integrated in the legal system of that country, e.g. Soc PT Putrabali Adyamulia v Soc Rena Holding, Cour de cassation, 29 June 2007 (2007) 32 Yb Comm Arb 299, and below at para 129.
+Non signatories: the principle in French law
+One of the odd features of this case is that there is nothing in the experts reports which suggests that there is any relevant difference between French arbitration law in non international cases and the principle in such cases as Dalico.
+When counsel was asked at the hearing of this appeal what difference it made, there was no satisfactory answer.
+No doubt that is because common intention would serve equally to answer the question in a non international case: cf Loquin, Arbitrage, para 18, in Juris Classeur Procdure Civile, Fasc 1032.
+As M Yves Derains (Dallahs expert) put it in his report, the arbitrators may find that the arbitration agreement is governed by transnational law, but the arbitrators must also look for the common will of the parties, express or implied, since it is a substantive rule of French law that the courts will apply when examining the jurisdiction of the arbitrators.
+There was, in the event, a large measure of agreement between the experts on French law who appeared before Aikens J, M le Btonnier Vatier for the Government and M Yves Derains for Dallah.
+In their Joint Memorandum they agreed that in order to determine whether an arbitration clause upon which the jurisdiction of an arbitral tribunal is founded extends to a person who is neither a named party nor a signatory to the underlying agreement containing that clause, it is necessary to find out whether all the parties to the arbitration proceedings, including that person, had the common intention (whether express or implied) to be bound by the agreement and, as a result, by the arbitration clause; the existence of a common intention of the parties is determined in the light of the facts of the case; the courts will consider the involvement and behaviour of all the parties during the negotiation, performance and, if applicable, termination of the underlying agreement.
+When a French court has to determine the existence and effectiveness of an arbitration agreement, and when for these purposes it must decide whether the agreement extends to a party who was neither a signatory nor a named party, it examines all the factual elements necessary to decide whether that agreement is binding upon that person.
+The fact that an arbitration agreement is entered into by a State owned entity does not mean that it binds the State, and whether the State is bound depends on the facts in the light of the principles.
+The principle as expressed in the jurisprudence of the Paris Cour dappel is as follows: Selon les usages du commerce international, la clause compromissoire insre dans un contrat international a une validit et une efficacit propres qui commandent den tendre lapplication aux parties directement impliques dans lexcution du contrat et les litiges qui peuvent en rsulter, ds lors quil est tabli que leur situation contractuelle, leurs activits et les relations commerciales habituelles existant entre les parties font prsumer quelles ont accept la clause darbitrage dont elles connaissaient lexistence et la porte, bien quelles naient pas t signatoires du contrat qui la stipulait. (According to international usage, an arbitration clause inserted in an international contract has a validity and an effectiveness of its own, such that the clause must be extended to parties directly implicated in the performance of the contract and in any disputes arising out of the contract, provided that it has been established that their respective contractual situations and existing usual commercial relations raise the presumption that they accepted the arbitration clause of whose existence and scope they were aware, irrespective of the fact that they did not sign the contract containing the arbitration agreement.
+See Orri v Soc. des Lubrifiants Elf Acquitaine, 11 January 1990, 1991 Rev Arb 95 (affd Cour de cassation, 11 June 1991, 1992 Rev Arb 73, on different grounds); also Socit Korsnas Marma v Soc DurandAuzias, 30 November 1988, 1989 Rev Arb 691; Compagnie tunisienne de navigation (Cotunav) v Soc Comptoir commercial Andr, 28 November 1989, 1990 Rev Arb 675.
+The principle applies equally where a non signatory seeks the benefit of an arbitration agreement, as in Dalico itself and in Dow Chemicals.
+The common intention of the parties means their subjective intention derived from the objective evidence.
+M le Btonnier Vatier, the Governments expert, confirmed in his oral evidence that under French law the court must ascertain the genuine, subjective, intention of each party, but through its objective conduct, and M Yves Derains, Dallahs expert, agreed.
+M Derains confirmed that in order for an act (such as the letter of termination) of the Government to have the effect of establishing the subjective intention on the Governments part to be bound by the arbitration agreement, it would have to be a conscious, deliberate act by the government; that anything less than a conscious and deliberate act of the government might make the letter less relevant; and that the letter would not be relevant if it was written by mistake.
+Renvoi
+The parties were agreed before Aikens J that article V(1)(a) of the New York Convention established two conflict of laws rules.
+The first was the primary rule of party autonomy: the parties could choose the law which governed the validity of the arbitration agreement.
+In default of that agreement, the law by which to test validity was that of the country where the award to be enforced was made.
+Because they were to be treated as uniform conflict of laws rules, the reference to the law of the country where the award was made in article V(1)(a) of the New York Convention and the same words in section 103(2)(b) of the 1996 Act must be directed at that countrys substantive law rules, rather than its conflicts of law rules.
+Aikens J also drew support from section 46(2) in Part I of the 1996 Act, which defines the law chosen by the parties as the substantive laws of that country and not its conflict of laws rules, and which was specifically inserted to avoid the problems of renvoi: Mustill & Boyd, Commercial Arbitration, 2001 Companion (2001), p 328.
+Aikens J considered that the same approach was intended for section 103(2)(b) in Part III of the 1996 Act, and that he should have regard to French substantive law and not its conflict of laws rules (at para 78) and that the principle of French law that the existence of an arbitration agreement in an international context may be determined by transnational law was a French conflict of laws rule (at para 93).
+It is likely that renvoi is excluded from the New York Convention: see van den Berg, The New York Convention of 1958 (1981), p 291.
+But it does not follow that for an English court to test the jurisdiction of a Paris tribunal in an international commercial arbitration by reference to the transnational rule which a French court would apply is a case of renvoi.
+Renvoi is concerned with what happens when the English court refers an issue to a foreign system of law (here French law) and where under that countrys conflict of laws rules the issue is referred to another countrys law.
+That is not the case here.
+What French law does is to draw a distinction between domestic arbitrations in France, and international arbitrations in France.
+It applies certain rules to the former, and what it describes as transnational law or rules to the latter.
+As mentioned above, the applicability of transnational rules or law (and there was no evidence on their content) would not make a difference in this case.
+But even if there were a difference, there is not, according to English notions, any reference on to another system of law.
+All that French law is doing is distinguishing between purely domestic cases and international cases and applying different rules to the latter.
+If a French court would apply different principles in an international case, for an English court to do what a French court would do in these circumstances is not the application of renvoi.
+Discretion
+The court before which recognition or enforcement is sought has a discretion to recognise or enforce even if the party resisting recognition or enforcement has proved that there was no valid arbitration agreement.
+This is apparent from the difference in wording between the Geneva Convention on the Execution of Foreign Arbitral Awards 1927 and the New York Convention.
+The Geneva Convention provided (article 1) that, to obtain recognition or enforcement, it was necessary that the award had been made in pursuance of a submission to arbitration which was valid under the law applicable thereto, and contained (article 2) mandatory grounds (shall be refused) for refusal of recognition and enforcement, including the ground that it contained decisions on matters beyond the scope of the submission to arbitration.
+Article V(1)(a) of the New York Convention (and section 103(2)(b) of the 1996 Act) provides: Recognition and enforcement of the award may be refused See also van den Berg, p 265; Paulsson, May or Must Under the New York Convention: An Exercise in Syntax and Linguistics (1998) 14 Arb Int 227.
+Since section 103(2)(b) gives effect to an international convention, the discretion should be applied in a way which gives effect to the principles behind the Convention.
+One example suggested by van den Berg, op cit, p 265, is where the party resisting enforcement is estopped from challenge, which was adopted by Mance LJ in Dardana Ltd v Yukos Oil Co [2002] 2 Lloyds Rep 326, para 8.
+But, as Mance LJ emphasised at para 18, there is no arbitrary discretion: the use of the word may was designed to enable the court to consider other circumstances, which might on some recognisable legal principle affect the prima facie right to have an award set aside arising in the cases listed in section 103(2).
+See also Kanoria v Guinness [2006] 1 Lloyds Rep 701, para 25 per Lord Phillips CJ.
+Another possible example would be where there has been no prejudice to the party resisting enforcement: China Agribusiness Development Corpn v Balli Trading [1998] 2 Lloyds Rep 76.
+But it is not easy to see how that could apply to a case where a party had not acceded to an arbitration agreement.
+There may, of course, in theory be cases where the English court would refuse to apply a foreign law which makes the arbitration agreement invalid where the foreign law outrages its sense of justice or decency (Scarman Js phrase in In the Estate of Fuld, decd (No 3) [1968] P 675, 698), for example where it is discriminatory or arbitrary.
+The application of public policy in the New York Convention (article V(2)(b)) and the 1996 Act (section 103(3)) is limited to the non recognition or enforcement of foreign awards.
+But the combination of (a) the use of public policy to refuse to recognise the application of the foreign law and (b) the discretion to recognise or enforce an award even if the arbitration agreement is invalid under the applicable law could be used to avoid the application of a foreign law which is contrary to the courts sense of justice.
+Only limited assistance can be obtained from those cases in which awards have been enforced abroad (in particular in France and the United States) notwithstanding that they have been set aside (or supended) in the courts of the seat of arbitration.
+In France the leading decisions are Pabalk Ticaret Sirketi v Norsolor, Cour de cassation, 9 October 1984, 1985 Rev Crit 431; Hilmarton Ltd v OTV, Cour de cassation, 23 March 1994 (1995) 20 Yb Comm Arb 663, in which a Swiss award was enforced in France even though it had been set aside in Switzerland: the award rendered in Switzerland is an international award which is not integrated in the legal system of that State, so that it remains in existence even if set aside (at p 665); Rpublique arabe dEgypte v Chromalloy Aero Services, Paris Cour dappel, 14 January 1997 (1997) 22 Yb Comm Arb 691.
+Thus in Soc PT Putrabali Adyamulia v Soc Rena Holding, Cour de cassation, 29 June 2007 (2007) 32 Yb Comm Arb 299, an award in an arbitration in England which had been set aside by the English court (see PT Putrabali Adyamulia v Soc Est Epices [2003] 2 Lloyds Rep 700) was enforced in France, on the basis that the award was an international award which did not form part of any national legal order.
+Those decisions do not rest on the discretion to allow recognition or enforcement notwithstanding that the award has been set aside by a competent authority of the country in which that award was made (New York Convention, article V(1)(e)).
+They rest rather on the power of the enforcing court under the New York Convention, article VII(1), to apply laws which are more generous to enforcement than the rules in the New York Convention: see Born, International Commercial Arbitration (2009), pp 2677 2680; Gaillard, Enforcement of Awards Set Aside in the Country of Origin (1999) 14 ICSID Rev 16; and Yukos Capital SARL v OAO Rosneft, 28 April 2009, Case No 200.005.269/01 Amsterdam Gerechtshof.
+In the United States the courts have refused to enforce awards which have been set aside in the State in which the award was made, on the basis that the award does not exist to be enforced if it has been lawfully set aside by a competent authority in that State: Baker Marine (Nigeria) Ltd v Chevron (Nigeria) Ltd, 191 F 3d 194 (2d Cir 1999); TermoRio SA ESP v Electranta SP, 487 F 3d 928 (DC Cir 2007).
+But an Egyptian award which had been set aside by the Egyptian court was enforced because the parties had agreed that the award would not be the subject of recourse to the local courts: Chromalloy Aeroservices v Arab Republic of Egypt, 939 F Supp 907 (DDC 1996).
+That decision was based both on the discretion in the New York Convention, article V(1) and on the power under article VII(1) (see Karaha Bodas Co v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F 3d 357, 367 (5th Cir 2003)) and whether it was correctly decided was left open in TermoRio SA ESP v Electranta SP, ante, at p 937.
+The power to enforce notwithstanding that the award has been set aside in the country of origin does not, of course, arise in this case.
+The only basis which Dallah puts forward for the exercise of discretion in its favour is the Governments failure to resort to the French court to set aside the award.
+But Moore Bick LJ was plainly right in the present case (at para 61) to say that the failure by the resisting party to take steps to challenge the jurisdiction of the tribunal in the courts of the seat would rarely, if ever, be a ground for exercising the discretion in enforcing an award made without jurisdiction.
+There is certainly no basis for exercising the discretion in this case.
+III The application of the principles to the appeal
+The crucial facts have been set out fully by Lord Mance.
+The essential question is whether the Government has proved that there was no common intention (applying the French law principles) that it should be bound by the arbitration agreement.
+The essential points which lead to the inevitable conclusion that there was no such common intention are these.
+First, throughout the transaction Dallah was advised by a leading firm of lawyers in Pakistan, Orr, Dignam & Co, which was responsible for the drafts of both the Memorandum of Understanding (MoU) which was concluded on 24 July 1995 between Dallah and the Government, and the Agreement of 10 September 1996 (the Agreement) between Dallah and the Trust.
+It must go without saying that the firm well understood the difference between an agreement with a State entity, on the one hand, and the State itself, on the other.
+Second, there was a clear change in the proposed transaction from an agreement with the State to an agreement with the Trust.
+The MoU was expressed to be made between Dallah and the President of the Islamic Republic of Pakistan through the Ministry of Religious Affairs, and it was signed For and on behalf of The President of the Islamic Republic of Pakistan.
+It was governed by Saudi Arabian law (clause 23).
+It provided for ad hoc arbitration with a Jeddah seat (clause 24), and contained an express waiver of sovereign immunity, including immunity from execution (clause 25).
+Third, the Trust was established as a body corporate having perpetual succession and a common seal with power to acquire, hold and dispose of property, and may by its name, sue and be sued.
+Fourth, the Agreement (including the arbitration agreement) was plainly an agreement between Dallah and the Trust, and the Government was referred to in the Agreement only in its capacity of guarantor of loans to the Trust.
+It described the parties as Dallah Real Estate and Tourism Holding Company and Awami Hajj Trust. (which is referred to as having been: established under Section 3 of the Awami Hajj Trust Ordinance, 1996 (Ordinance No VII of 1996) On the signature page, there are two signatories: Dallah and the Awami Hajj Trust.
+Shezi Nackvi signed on behalf of Dallah, and Managing Trustee (Zubair Kidwai) signed on behalf of the Trust.
+Clause 2 provided for the Trust to pay $100m to Dallah by way of advance, subject to (inter alia) Dallah providing a Financing Facility against a guarantee of the Government of Pakistan and the Trust and the Trustee Bank providing a counter guarantee in favour of the Government of Pakistan.
+By clause 27 it was provided: The Trust may assign or transfer its rights and obligations under this Agreement to the Government of Pakistan without the prior consent in writing of Dallah.
+The arbitration clause (article 23) related to Any dispute or difference of any kind whatsoever between the Trust and Dallah .
+The parties amended the ICC model clause (which reads: All disputes arising out of or in connection with the present contract shall be finally settled), in order to specify the Trust and Dallah.
+Fifth, it was the Trust which immediately following the termination letter of 19 January 1997, commenced proceedings against Dallah in Islamabad (the 1997 Pakistan Proceedings).
+The proceedings were for a declaration that the Trust had validly accepted Dallahs repudiation of the Agreement between the Trust and Dallah on 19 January 1997.
+The contents of the pleading were verified on oath by Mr Muhammad Lutfullah Mufti.
+On the same day Mr Lutfullah Mufti made an application in the name of the Trust for an interim injunction restraining Dallah from holding itself out to have any contractual relationship with the Trust.
+On 6 March 1997 Dallah filed an application to stay the action, given the existence of an arbitration agreement with the Trust.
+The Trust took preliminary objections against this application, among which was that the Trust had challenged the validity and existence of the Agreement.
+Mr Lutfullah Mufti, describing himself as Secretary Board of Trustees Awami Hajj Trust/Secretary, Religious Affairs Division, Government of Pakistan swore an affidavit verifying the objections by the Trust to the application.
+There are only two serious contra indications.
+The first is the fact that the termination latter was written, after the Trust had ceased to exist, by Mr. Lutfullah Mufti (who had been Secretary of the Board of Trustees of the Trust and its Managing Trustee, and who was also from time to time Secretary of the Ministry of Religious Affairs) under the letterhead of the Ministry of Religious Affairs, and signed as Secretary.
+There is nothing in the text of the letter to suggest that it was written on behalf of the Government.
+On the contrary, as Moore Bick LJ said [2010] 2 WLR 805, para 36 (differing on this point from Aikens J, at para 117) all the internal indications are that it was written on behalf of the Trust.
+Thus the opening paragraph reads as follows: Pursuant to the above mentioned Agreement for the leasing of housing facilities in the holy city of Makkah, Kingdom of Saudi Arabia, you were required within ninety (90) days of the execution of the said Agreement to get the detailed specifications and drawings approved by the Trust.
+However, since you have failed to submit the specifications and drawings for the approval of the Trust to date you are in breach of a fundamental term of the Agreement which tantamounts to a repudiation of the whole Agreement which repudiation is hereby accepted.
+The second contra indication is contained in the fact that the 1998 Pakistan Proceedings were commenced in the name of the Government.
+That was because, when the 1997 Pakistan Proceedings were dismissed by the Pakistan court on the ground that the Trust had ceased to exist as of 11 December 1996, the judge said that, on dissolution of the Trust suit should have been filed by the Ministry for Religious Affairs, apparently on the basis that the Government had succeeded to the rights and obligations of the Trust.
+On 18 September 1998, the Islamabad judge ruled that the Government was not the legal successor of the Trust, and so not bound by the Agreement or the arbitration agreement.
+On 14 January 1999, the Government applied voluntarily to withdraw the suit, which was granted on the same day.
+Neither of these two matters, nor the other matters relied on, was sufficient to justify a finding of a common intention that the Government should be bound by the arbitration agreement.
+It is true that the principle of common intention in French law was similar to that articulated by the tribunal, but M Le Btonnier Vatiers evidence made clear that there were significant differences.
+He accepted that the principles adopted by the tribunal were in general the principles that might be adopted in French law, but they were too general.
+That is undoubtedly a valid criticism of the way in which the Tribunal sought to use material from the period prior to termination to justify its conclusion.
+The Tribunal first considered the conduct of the Government prior to the execution of the Agreement.
+It drew the conclusion that the organic control of the Government over the Trust, although insufficient to lead to the disregard of the separate legal entity of the Trust, constituted nevertheless an element of evidence as to the true intention of the Government to run and control directly and indirectly the activities of the Trust, and to view the Trust as one of its instruments.
+The Tribunal next considered the conduct of the Government at the time of execution of the Agreement.
+From that it drew the conclusion that the Government was contractually involved in the Agreement, as the Government was bound, under article 2 thereof, to give its guarantee for the financial facility to be raised by [Dallah] and that the Trusts right to assign its rights and obligations to the Government was a provision which was normally used only where the assignee is closely linked to the assignor or is under its total control through ownership, management or otherwise.
+The Tribunal considered that during the lifetime of the Agreement the Government continued itself to handle matters relating to the Agreement and to act and conduct itself in a way which confirmed that it regarded the Agreement as its own.
+Government officials were actively involved in the implementation of the Agreement.
+The Government decided not to re promulgate the Ordinance and therefore put an end to the Trust, and so the very existence of the Trust appeared to have been completely dependent on the Government.
+None of these matters could possibly justify a finding that there was a common intention that the Government should be bound by the arbitration agreement.
+The crucial finding was that after the dissolution of the Trust, the termination letter of 19 January 1997 was written on Ministry of Religious Affairs letterhead and signed by the Secretary of the Ministry, and confirmed in the clearest way possible that the Government regarded the Agreement with Dallah as its own and considered itself as a party to the Agreement and was entitled to exercise all rights and assume all responsibilities provided for under the Agreement.
+The signature of the letter could only be explained as evidence that the Government considered itself a party to the Agreement.
+But the Trust had no separate letterhead and it is plain from the surrounding circumstances, and particularly the way in which the 1997 Pakistan proceedings were commenced on behalf of the Trust, and verified by Mr Lutfullah Mufti, that the letter was written on behalf of the Trust and in ignorance of its dissolution.
+The tribunal ignored the 1997 Pakistan proceedings, and relied on the 1998 Pakistan proceedings to find that they showed that the Government considered itself as a party to the Agreement.
+But it is clear that those proceedings were commenced at the erroneous suggestion of the Pakistan judge and shed no light on whether the parties intended that the Government should be bound by the Agreement or the arbitration agreement.
+Consequently on a proper application of French law as mandated by the New York Convention and the 1996 Act there was no material sufficient to justify the tribunals conclusion that the Governments behaviour showed and proved that the Government had always been, and considered itself to be, a true party to the Agreement and therefore to the arbitration agreement.
+On the contrary, all of the material up to and including the termination letter shows that the common intention was that the parties were to be Dallah and the Trust.
+On the face of the Agreement the parties and the signatories were Dallah and the Trust.
+The Governments role was as guarantor, and beneficiary of a counter guarantee.
+The assignment clause showed that the Government was not a party.
+It permitted the Trust to assign or transfer its rights and obligations under the Agreement to the Government without the prior consent in writing of Dallah.
+The arbitration clause related to any dispute between the Trust and Dallah.
+The weakness of the conclusion of the tribunal is underlined by this passage in the Award: Certainly, many of the above mentioned factual elements, if isolated and taken into a fragmented way, may not be construed as sufficiently conclusive for the purpose of this section.
+However, Dr Mahmassani believes that when all the relevant factual elements are looked into globally as a whole, such elements constitute a comprehensive set of evidence that may be relied upon to conclude that the Defendant is a true party to the Agreement with the Claimant and therefore a proper party to the dispute that has arisen with the Claimant under the present arbitration proceedings.
+Whilst joining in this conclusion Dr Shah and Lord Mustill note that they do so with some hesitation, considering that the case lies very close to the line.
+Aikens J rejected the argument that the discretion should be exercised in favour of enforcement because of the Governments failure to challenge the award in the French courts: Dallah had not submitted that the Government was estopped from challenging the jurisdiction of the tribunal; and the discretion would not be exercised where, as in this case, there was something unsound in the fundamental structural integrity of the ICC arbitration proceedings, namely that the Government did not agree to be bound by the arbitration agreement in clause 23 of the Agreement.
+There was no error of principle and the Court of Appeal was right not to interfere with the judges exercise of discretion.
+LORD HOPE
+The essential question in this case, as Lord Mance and Lord Collins explain in paras 2 and 132 of their judgments, is whether the Government of Pakistan has proved that there was no common intention (applying French law principles) between it and Dallah that it should be bound by the arbitration agreement.
+This is a matter which goes to the root of the question whether there was jurisdiction to make the award.
+As such, it must be for the court to determine.
+It cannot be left to the determination of the arbitrators.
+For the reasons set out in the opinions of Lord Mance and Lord Collins, I agree that the facts point inevitably to the conclusion that there was no such common intention.
+As Lord Mance says in para 66, the agreement was deliberately structured to be, and was agreed, between Dallah and the Trust.
+I also agree that the Court of Appeal was right not to interfere with the judges exercise of his discretion to refuse enforcement of the award.
+I too would dismiss the appeal.
+LORD SAVILLE
+In his judgment Lord Mance has set out in detail the facts of this case and no purpose would be served by repeating them in this judgment.
+The case concerns an application by Dallah Real Estate and Tourism Holding Company to enforce in this country an ICC arbitration award dated 23rd June 2006 against the Ministry of Religious Affairs of the Government of Pakistan.
+The amount of the award was US$20,588,040.
+The application was opposed by the Ministry of Religious Affairs on the grounds that there was no arbitration agreement between the parties, so that the award was unenforceable.
+The award was a New York Convention Award within the meaning of Section 100 of the Arbitration Act 1996 and was made in Paris.
+Section 103(1) of the Arbitration Act 1996 provides that recognition and enforcement of a New York Convention Award shall not be refused except in the following cases.
+The following sub sections set out the cases in question.
+Section 103(2) contains a number of these cases and provides that recognition or enforcement of the award may be refused if the person against whom it is invoked proves (so far as the case relevant to these proceedings is concerned) that the arbitration agreement was not valid under the law to which the parties subjected it or, failing any indication thereon, under the law of the country where the award was made.(Section 103(2) (b)) (emphases added).
+The arbitrators considered the question of their jurisdiction before dealing with the merits of the claim and concluded that the Ministry of Religious Affairs of the Government of Pakistan was party to an arbitration agreement with Dallah Real Estate and Tourism Holding Company, for the reasons contained in what they described as a Partial Award dated 26th June 2001.
+It was common ground that the question whether or not the Ministry of Religious Affairs was a party to the arbitration agreement relied upon by Dallah Real Estate and Tourism Holding Company, under which the ICC award was made, was to be determined under Section 103(2)(b) of the Arbitration Act 1996, and that the law to be applied was French law, being the law of the place where the award was made.
+After a trial, during which both parties tendered expert evidence on French law, Aikens J (as he then was) held that the Ministry of Religious Affairs was not party to the arbitration agreement and refused to enforce the award.
+The Court of Appeal upheld his decision.
+Dallah Real Estate and Tourism Holding Company now appeal to the Supreme Court.
+In their written case Dallah Real Estate and Tourism Holding Company submitted that the first issue for resolution by the Supreme Court concerned the nature and standard of review to be undertaken by an enforcing court when considering recognition and enforcement of a New York Convention award; and further submitted that the court should accord a high degree of deference and weight to the award of the arbitrators that there was an arbitration agreement between the parties.
+In the present case the arbitrators have made a ruling, as they were doubtless entitled to do under the doctrine of kompetenz kompetenz, that there was an arbitration agreement between the parties, so that they were able to hear and decide the merits of the case, which they then proceeded to do.
+However, under Section 103 of the Arbitration Act 1996 (as under the New York Convention itself) the person against whom the award was invoked has the right to seek to prove that there was no arbitration agreement between the parties, so that in fact the arbitrators had no power to make an award.
+The question at issue before the court, therefore, was whether the person challenging the enforcement of the award could prove there was no such agreement.
+In these circumstances, I am of the view that to take as the starting point the ruling made by the arbitrators and to give that ruling some special status is to beg the question at issue, for this approach necessarily assumes that the parties have, to some extent at least, agreed that the arbitrators have power to make a binding ruling that affects their rights and obligations; for without some such agreement such a ruling cannot have any status at all.
+As the Departmental Advisory Committee on Arbitration Law put it in paragraph 1.38 of its 1996 Report on the Arbitration Bill, an arbitral tribunal may rule on its own jurisdiction but cannot be the final arbiter of jurisdiction, for this would provide a classic case of pulling oneself up by ones own bootstraps.
+In my judgment therefore, the starting point cannot be a review of the decision of the arbitrators that there was an arbitration agreement between the parties.
+Indeed no question of a review arises at any stage.
+The starting point in this case must be an independent investigation by the court of the question whether the person challenging the enforcement of the award can prove that he was not a party to the arbitration agreement under which the award was made.
+The findings of fact made by the arbitrators and their view of the law can in no sense bind the court, though of course the court may find it useful to see how the arbitrators dealt with the question.
+Whether the arbitrators had jurisdiction is a matter that in enforcement proceedings the court must consider for itself.
+I accept, as an accurate summary of the legal position, the way it was put in the written case of the Ministry of Religious Affairs: Under s103(2)(b) of the 1996 Act / Art V.1(a) NYC, when the issue is initial consent to arbitration, the Court must determine for itself whether or not the objecting party actually consented.
+The objecting party has the burden of proof, which it may seek to discharge as it sees fit.
+In making its determination, the Court may have regard to the reasoning and findings of the alleged arbitral tribunal, if they are helpful, but it is neither bound nor restricted by them.
+In short, as was held in China Minmetals Materials Import and Export Co Ltd v Chi Mei Corporation (2003) 334 F3d 274, a decision of the United States Court of Appeals (3rd Circuit), the court must make an independent determination of the question whether there was an arbitration agreement between the parties.
+In the present case, for the reasons given by Lord Mance and Lord Collins (and the courts below), the Ministry of Religious Affairs has succeeded in showing that no arbitration agreement existed to which it was party and that there were no other grounds for enforcing the award.
+I would accordingly dismiss this appeal.
+LORD CLARKE
+I agree that this appeal should be dismissed for the reasons given by the other members of the court.
+Both Lord Mance and Lord Collins have analysed the relevant principles so fully and so expertly that it would be inappropriate self indulgence for me to attempt a detailed analysis of my own.
diff --git a/UK-Abs/train-data/judgement/uksc-2009-0166.txt b/UK-Abs/train-data/judgement/uksc-2009-0166.txt
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@@ -0,0 +1,550 @@
+In 2006 and 2007 a number of London local authorities entered into arrangements for mutual insurance against various classes of risk, including property, liability and terrorism.
+Mutual insurance occurs where a group of similarly placed persons or organisations agree to insure each other against risks in which they all have an interest.
+It relieves its members of the profit element which is built into an ordinary commercial premium.
+The criteria for membership may also reduce the level of risk, and thus the overall cost of cover, in comparison with the level of premium that is needed where risks are accepted from a large number of policy holders, some of whom represent a greater risk than others.
+The aim of the arrangements that the London local authorities entered into was to reduce the cost of premiums to its members and to raise the standard of risk management.
+In pursuing these objectives they were acting solely in the public interest.
+The insurance was to be provided by London Authorities Mutual Ltd (LAML), a company limited by guarantee.
+One of the local authorities involved in these arrangements was the London Borough of Brent (Brent).
+On 9 October 2006 Brents Executive gave approval in principle to Brents participation in LAML, subject to a report from officers once they had fully explored the option and taken legal advice.
+On 13 November 2006 the Executive was told that the cost of the insurance premiums with LAML would be at least 15% less than the premiums Brent was paying an insurance company for its insurance, and that this saving could be used in its budget to fund priority growth or to reduce overall expenditure and hence the level of council tax.
+Having also been advised that Brent had power to enter into the arrangements, the Executive resolved to give approval to its participation in capitalising LAML.
+In December 2006 Brent decided to invite tenders for combined and miscellaneous insurance for the period commencing 1 April 2007.
+The invitation, which was divided into seven lots and was issued in accordance with the Public Contracts Regulations 2006 (2006 SI/5) (the 2006 Regulations), was extended to, among others, Risk Management Partners Ltd (RMP).
+RMP was informed that the invitation was being issued because it was not clear whether LAML would be a viable option until January 2007, by which date it would be too late to seek tenders.
+This invitation was abandoned because the brokers had used incorrect documentation.
+Brent became a member of LAML, as did nine other of the 32 London boroughs including Harrow London Borough Council (Harrow), by subscribing to its Memorandum and Articles of Association on 18 January 2007.
+In February 2007 Brent again invited tenders in accordance with the 2006 Regulations for the same period, to be submitted by 23 February.
+RMP submitted a tender.
+LAML did not do so.
+It took no part in the public procurement process.
+On 16 March 2007, after LAML had been authorised to carry out insurance business by the Financial Services Authority, Brent paid to LAML the sum of 160,500 as a capitalisation amount.
+On 27 March 2007 it entered into a guarantee by which it undertook to pay sums on demand to LAML up to an aggregate amount of 609,500.
+On the same date Brent informed RMP that it had abandoned the contract award procedure that was being carried out in accordance with the 2006 Regulations for six of the seven lots, as it was proposing to award the contract to LAML.
+On 30 March 2007 LAML submitted an offer to insure Brent in respect of terrorism, liability, property and contents for 2007 2008.
+Brent accepted this offer and, on payment of premiums of 520,328.14, it became a participating member of LAML.
+On 6 April 2007 it issued a press notice announcing that LAML had opened for business.
+The court was informed that the company is now in provisional liquidation.
+The business of LAML was restricted to the provision of insurance to participating members or persons or bodies sponsored by them, referred to in the Memorandum of Association as affiliates.
+It was funded by paid and guaranteed contributions from participating members, by premiums, by supplementary calls on participating members and by reinsurance placed in the open market.
+The management of its affairs was vested in a Board which comprised a majority of directors appointed by participating members.
+There had to be at least two independent directors.
+On 27 March 2007 LAML entered into a management agreement with Charles Taylor & Co Ltd to perform for it the various management services described in the agreement.
+RMP decided to challenge these arrangements.
+It claimed that, as a commercial insurer, it might have obtained the insurance business that was placed with LAML had the tender process under the 2006 Regulations not been discontinued.
+Its challenge took two distinct forms.
+First, RMP took proceedings in the administrative court seeking judicial review of Brents decision to participate in LAML on the ground that it was beyond its statutory powers.
+Harrow and LAML participated in those proceedings as interested parties.
+Secondly, in separate proceedings in the Queens Bench Division, RMP claimed damages against Brent on the basis that by entering into insurance contracts under the mutual insurance scheme it had acted in breach of the 2006 Regulations.
+By a judgment delivered on 22 April 2008 Stanley Burnton LJ declared that Brent had no power under either section 111 of the Local Government Act 1972 or section 2 of the Local Government Act 2000 to participate in establishing LAML or become a participating member of that company, or to make payment of the capitalisation amount or to grant a guarantee to the company: [2008] EWHC 692 (Admin); [2008] LGR 331.
+By a further judgment delivered on 16 May 2008 Stanley Burnton LJ held that Brent had acted in breach of the 2006 Regulations when it abandoned the tender process and awarded the insurance contracts to LAML: [2008] EWHC 1094 (Admin); [2008] LGR 429.
+His judgment in that action was confined to the issue of liability.
+He reserved issues of causation and quantum of damages.
+He granted permission to appeal in both cases.
+By a single judgment the Court of Appeal (Pill, Moore Bick and Hughes LJJ) affirmed both decisions and dismissed the appeals: [2009] EWCA Civ 490; [2010] PTSR 349.
+The scope of the dispute has narrowed considerably since the decision of the Court of Appeal.
+There have been two significant developments.
+First, on 12 November 2009 Royal Assent was given to the Local Democracy, Economic Development and Construction Act 2009 (the 2009 Act).
+Section 34 of the 2009 Act gives power to local authorities to enter into mutual insurance arrangements of the kind in issue in this case.
+It also permits the benefit of such arrangements to be extended to other persons to be specified by regulation.
+That section is not yet in force, but it is expected to be brought into force shortly.
+This change in the law has largely superseded any question as to the statutory power of local authorities to enter into such arrangements.
+Secondly, the proceedings between Brent and RMP have been settled.
+This has resulted in Brent being given leave to withdraw its appeal to this court.
+In the result the appeal is now confined to the question of principle arising in the damages action only, in which Harrow still has an interest.
+This is whether, by entering into the mutual insurance arrangements with LAML, Harrow was acting in breach of the 2006 Regulations.
+In their written case Counsel for Harrow explain why, notwithstanding the enactment of section 34 of the 2009 Act, this question of principle continues to be of considerable importance.
+Until it ceased trading in 1992, most insurance provided to local authorities in the United Kingdom was provided by Municipal Mutual Insurance Ltd. As its name indicates, that company was a mutual insurer.
+It was created on the initiative of a number of local authorities and had been in existence since 1903.
+Mutual insurance is potentially a source of significant financial savings for local authorities, and it provides other advantages which are not readily available in the commercial insurance market.
+The effect of the decisions of Stanley Burton LJ and the Court of Appeal, if they are allowed to stand, is that local authorities are likely to find it difficult in practice to avail themselves of their expanded powers under section 34 of the Act of 2009 because of the requirement that they must comply with the 2006 Regulations.
+This is a source of real concern not only to Harrow but also to other local authorities insured by LAML or who are interested in obtaining mutual insurance on a similar basis.
+There are currently six other actions for damages pending in the High Court against local authorities who contracted with LAML.
+They have been stayed pending this appeal.
+The Public Contracts Regulations 2006
+The 2006 Regulations were made under section 2(2) of the European Communities Act 1972.
+They give effect to Council Directive 2004/18/EC of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L134, p 114).
+The broad object of Directive 2004/18/EC, and of the Regulations that give effect to it, is to ensure that public bodies award certain contracts above a minimum value only after fair competition, and that the award is made to the person offering the lowest price or making the most economically advantageous offer.
+Directive 2004/18/EC replaced earlier EC legislation to the same effect, including Directives 92/50/EEC and 93/36/EEC with which some of the decisions of the European Court that it will be necessary to refer were concerned.
+But the differences between them are not relevant to the issue arising in this appeal.
+So I shall refer to them all, without regard to which of them was in play in each case, as the Directive.
+Regulation 5 of the 2006 Regulations provides that the Regulations apply whenever a contracting authority seeks offers in relation to the award of a variety of public contracts and other arrangements, including a Part A services contract.
+It is agreed that insurance contracts of the kind and values awarded by Brent to LAML were contracts under which services specified in Part A of Schedule 3 were to be provided and that the definition of a Part A services contract in regulation 2(2) is satisfied.
+Regulation 30(1) sets out the basic rule.
+It provides that a contracting authority shall award a public contract on the basis of the offer which (a) is the most economically advantageous from the point of view of the contracting authority or (b) offers the lowest price.
+Regulation 3 provides a list of bodies that are to be taken to be a contracting authority for the purposes of the Regulations.
+Among those listed is a local authority.
+Harrow is a contracting authority for those purposes, as of course was Brent.
+Various expressions used in the 2006 Regulations are defined in regulation 2.
+The expression public contract means a public services contract, a public supply contract or a public works contract.
+Public services contract means a contract, in writing, for consideration (whatever the nature of the consideration) under which a contracting authority engages a person to provide services but does not include (a) a public works contract; or (b) a public supply contract; but a contract for both goods and services shall be considered to be a public services contract if the value of the consideration attributable to those services exceeds that of the goods covered by the contract and a contract for services which includes activities specified in Schedule 2 that are only incidental to the principal object of the contract shall be considered to be a public services contract.
+Services provider means a person who offers on the market services and who sought, or would have wished, to be the person to whom a public services contract is awarded or to participate in a design contest and which is a national of and established in a relevant state.
+RMP, as a commercial insurer, is a person who offers on the market services within the meaning of that definition.
+The issues
+Harrow does not claim to have observed the 2006 Regulations when it placed insurance with LAML.
+As in Brents case, the contract which it entered into with LAML was not put out to tender.
+The question which Harrow raises in its defence is whether the 2006 Regulations apply to the kind of collective provision of services that its contract with LAML involved.
+Article 1(2)(a) of the Directive defines public contracts as contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services within the meaning of this Directive.
+It submits that the question what is a public contract for the purposes of the EU public procurement regime is a question of EU law.
+Under English law a contract requires agreement between two distinct juridical persons.
+But EU law has developed its own autonomous concepts for determining whether the parties to an agreement are sufficiently distinct for it to constitute a public contract.
+It is fundamental to the operation of the regime that it applies only to contracts awarded to external contractors, and is not intended to prevent a public authority from procuring the relevant goods or services from its own resources.
+This gives rise to no particular difficulty where a public authority seeks to make use of services that it can provide for itself in house.
+The problem arises where the public authority wishes to procure them from a distinct juridical entity with which the authority is closely associated or from a distinct juridical entity which is closely associated with a consortium of authorities to which it belongs.
+There is now a substantial body of case law in the Court of Justice of the European Union on this issue.
+The leading decision is Teckal Srl v Comune di Viano and Azienda Gas Acqua Consorziale (AGAC) di Reggio Emilia (Case C 107/98) [1999] ECR I 8121 (Teckal).
+AGAC was a corporate entity which had been set up by a consortium of Italian municipalities to provide energy and environmental services to the participating authorities.
+For some time prior to 1997 Teckal had supplied fuel to Viano and had serviced its heating systems.
+In May 1997 Viano decided to switch its custom to AGAC.
+It did so without inviting competing tenders from other interested persons.
+Teckal challenged this decision on the ground that Viano had failed to comply with Directives 92/50/EEC (as to services) and 93/36/EEC (as to goods).
+Vianos case was that it had decided to undertake these matters itself through a body which had been set up for the purpose.
+In para 41 of its judgment the court said: In order to determine whether the fact that a local authority entrusts the supply of products to a consortium in which it has a holding must give rise to a tendering procedure as provided for under Directive 93/36, it is necessary to consider whether the assignment of that task constitutes a public supply contract.
+In para 49, as to whether there was a contract for this purpose, it said that the national court must determine whether there had been an agreement between two separate persons.
+In para 50 it then gave guidance as to how the issue as to whether it was a public service contract was to be determined: In that regard, in accordance with article 1(a) of Directive 93/36, it is, in principle, sufficient if the contract was concluded between, on the one hand, a local authority and, on the other, a person legally distinct from that local authority.
+The position can be otherwise only in the case where the local authority exercises over the person concerned a control which is similar to that which it exercises over its own departments and, at the same time, that person carries out the essential part of its activities with the controlling local authority or authorities.
+In para 51 it said that the Directive applied only to contracts between a public authority and an entity which was formally distinct from it and independent of it in regard to decision making.
+Two conditions must therefore be satisfied if a contract between a public authority and a legally distinct entity is to be taken out of the scope of the Directive.
+First, the public authority must exercise control over the entity with which it contracts.
+But it may wish to co operate with other public authorities in the procurement of services.
+As the contractor in Teckal was a consortium company, the decision in that case suggests, without actually saying so, that control can be exercised by a public authority jointly with other public authorities.
+This condition was referred to in argument as the control test.
+Secondly, the contractor must carry out the essential part of its activities with the controlling local authority or authorities.
+This condition was referred to as the function test.
+The Teckal exemption is not referred to anywhere in the Directive.
+It is a judicial gloss on its language.
+Harrow submits that it reflects the courts view of the Directives wider economic purpose and its traditional concern with economic substance as opposed to legal form.
+Its case is that agreements between a public authority and a controlled entity, although satisfying all the requirements of contractual validity imposed by the national law of contract, are nevertheless not to be treated as public contracts for the purposes of the Directive if the reality is that they are in house arrangements made by the public authority itself or by a group of public authorities acting collectively for their public purposes.
+RMP has however raised a threshold issue as to whether the Teckal exemption has any application in domestic law to the public procurement regime that the 2006 Regulations set out.
+This is because the Regulations are drafted in terms of English law and do not refer to or expressly enact the exemption.
+It was agreed that the following issues arise on this appeal: (1) Does the Teckal exemption apply to the 2006 Regulations? (2) If so, is the exemption applicable where the contract is for insurance? (3) If so, to satisfy the Teckal control test, must the contracting authority exercise a control over the legally distinct entity which is similar to that which it exercises over its own departments, or is it sufficient that control is exercised by the contracting authorities collectively? (4) If it is sufficient that the contracting authorities exercise that control collectively, is that requirement satisfied in this case? (5) Is the Teckal function test also satisfied in this case? (6) Is a reference to the Court of Justice required on issue (2) or the issues about the control test?
+Stanley Burnton LJ held that the Teckal exemption applied to the 2006 Regulations.
+He held that the term contract in the Regulations should be construed in the light of the expressed intention to implement the Directive and as requiring two contracting parties that do not satisfy the Teckal conditions: [2008] LGR 429, para 65.
+He rejected RMPs argument that it would be inconsistent with the Teckal exemption to apply it to insurance: para 67.
+The real issue, as he saw it, was whether on the facts the requirements of the exemption were satisfied.
+Having examined the Memorandum and Articles of Association of LAML and the Rules appended to the Articles, he said that the general picture that they gave was of a business the administration of which was relatively independent, and of a relationship between Brent and LAML that was inconsistent with Teckal: para 78.
+He did not find it necessary to consider whether the function test was satisfied.
+The Court of Appeal agreed with Stanley Burnton LJ on the question whether the Teckal exemption formed part of the 2006 Regulations: [2010] PTSR 349, paras 133 (Pill LJ), 225 (Moore Bick LJ).
+It held that the requirements of the Teckal control test were not satisfied.
+Pill LJ said that the nature of LAMLs business and the possibly differing interests of different authorities and affiliates, were antithetic to the necessary local authority control: para 131.
+Moore Bick LJ said that the facts showed that the Board of LAML was intended to exercise a substantial amount of discretionary control over the way the company was run, particularly in relation to its dealing with individual members, and that the nature of the relationship between the member as insured and LAML was essentially one between independent third parties: para 236.
+Pill LJ said that, if he had found that the Teckal control test was satisfied, he would have been prepared to find that the Teckal function test was satisfied also: para 132.
+Does the Teckal exemption apply to the 2006 Regulations?
+Mr Howell QC for RMP submitted that the 2006 Regulations should be construed and applied in the same way as any other regulations made under domestic law, unless they were found to be incompatible with EU law.
+There was no such incompatibility in this case.
+They were within the powers of section 2(2) of the European Communities Act 1972, as it permits a domestic measure to be wider in its effects than the EU measure to which it gives effect.
+So it would not have been incompatible for them to have subjected more contracts to the procurement regime than EU law required.
+They did not contain a Teckal exemption, but the Directive did not in terms do so either.
+As for their terms, they did not simply reproduce the wording of the Directive.
+On the contrary, they set out the requirements for procurement in domestic law in terms of domestic legal concepts.
+Instead of adopting the definition of public contracts in article 1(2)(a) of the Directive, they provided their own definitions of public contract and public services contract.
+The definitions were all couched in terms of domestic contract law, in the interests of greater certainty.
+There was no evidence as to whether national contract procurement rules in other member states included a Teckal exemption, but there was nothing odd about having different contract procurement regimes.
+The Commission could have directed that it was to be applied in all Member states, but it had not done so.
+I do not find these arguments persuasive.
+It is a sufficient answer, as Mr Sumption QC for Harrow submitted, to say that the basis for implying the Teckal exemption into the 2006 Regulations is to be found in their underlying purpose, which was to give effect to the Directive.
+The absence of any reference to the exemption in the Regulations is of no more significance than the absence of any reference to it in the Directive that was being transposed.
+The exemption in favour of contracts which satisfy its conditions was read into the Directive by the European Court in Teckal because it was thought to be undesirable for contracts of that kind to be opened up for public procurement.
+This was not just a technicality.
+It was a considered policy of EU law.
+It would be odd if a significant and policy based exemption were to apply in some member states and not others, especially as one of the aims of the Directive was to harmonise procedures.
+This can be seen from recital (2) of the preamble to the Directive, which states in part: for public contracts above a certain value, it is advisable to draw up provisions of Community coordination of national procedures for the award of such contracts which are based on [the principles of non discrimination, mutual recognition, proportionality and transparency] so as to ensure the effects of them and to guarantee the opening up of public procurement to competition.
+Furthermore, as some of the authorities that I will refer to later show, the Teckal exemption applies equally to cases where, because the relationship does not fall within the scope of the Directive, the issue is one as to its compatibility with articles 12, 43 and 49 of the EC Treaty: Parking Brixen GmbH v Gemeinde Brixen (Case C 458/03) [2005] ECR I 8585; Asociacin Nacional de Empresas Forestales (Asemfo) v Transformacin Agraria SA (Tragsa) (Case C 295/05) [2007] ECR I 2999; Coditel Brabant SA v Commune dUccle (Case C 324/07) [2008] ECR I 8457.
+So it does not depend on the meaning to be given to particular words or phrases in the Directive, such as those to be found in the definition of public contracts in article 1(2)(a).
+The basis for it is more fundamental than that.
+That is why, as Advocate General Geelhoed pointed out in Asemfo [2007] ECR I 2999, paras 58 59, services where no element of a contract for a pecuniary interest is involved (and which, for that reason, lie outside the scope of the Directive but are within the scope of the EC Treaty) but which have the same effect in economic terms as an arrangement in which one authority entrusts services under contracts for pecuniary interest to an entity which is under the control of another authority (which are public contracts within the meaning of the Directive) should be judged as far as possible by the same measure.
+It is true that section 2(2) of the European Communities Act 1972 is in wide terms.
+It does not confine any measures made under it to doing the minimum necessary to give effect to a Directive.
+But, if it is to be within the powers of the subsection, the measure has to arise out of or be related to an EU obligation.
+As Waller LJ said in Oakley Inc v Animal Ltd (Secretary of State for Trade and Industry intervening) [2006] Ch 337, para 39, the primary objective of any secondary legislation under section 2(2) must be to bring into force laws which, under the Treaties, the United Kingdom has agreed to make part of its laws.
+There is nothing in the Explanatory Memorandum to the Regulations that was prepared by the Office of Government Commerce and laid before Parliament to indicate that it was intended to depart from the jurisprudence of the court as to the scope of the Directive.
+In paras 7.2 7.4 of the Memorandum it was stated that the change to the legislation was necessary to implement the new public procurement Directive, that it clarified and modernised the previous texts and that the simpler and more consistent public sector text should reduce the burdens involved under the EU rules.
+If the Teckal exemption were to be held not to apply to the 2006 Regulations, it could only be because the purpose of the Regulations was to apply the public procurement rules to relationships that fell outside the regime provided for by the Directive.
+But that would not be consistent with the Memorandum, and it would not be a permitted use of the power.
+As for the meaning and effect of the 2006 Regulations, I think that it would be wrong to apply a literal approach to the words and phrases used in it, such as in the definitions of public contract and public service contract.
+A purposive approach should be adopted.
+As Lord Diplock in Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850, 881 indicated, this means that regard must be had to the context in which the Regulations were made, to their subject matter and to their purpose.
+Would it be inconsistent with the achievement of that purpose if the Teckal exemption were not to be held to apply to them? Was this an exemption to which Parliament must have intended them to be subject? Having regard to the background of EU law against which the Regulations were made, the definitions in the Regulations can be taken to express the same idea as those in the Directive.
+Thus something which amounts to a contract in domestic law can nevertheless be held, without doing undue violence to the words of the Regulations, not to be a relevant contract for the purpose of the public procurement rules.
+I would hold accordingly that the Teckal exemption does apply to the 2006 Regulations.
+By implication, the rules that it lays down do not apply to contracts between a public authority and a person which is legally distinct from it if, but only if, the control and function tests identified in Teckal are both satisfied.
+Is the exemption applicable where the contract is for insurance?
+Mr Howells argument on this issue was based in the proposition that the Teckal exemption applies only where there was no contract, by which he meant that there was in substance no agreement between two separate persons.
+A contract of insurance, which by its very nature transferred the insured risk from one person to another, could not meet that requirement.
+It was inherently a contract between two different people.
+Insurance is not something which can be internal to the contracting authority.
+So the arrangements between Harrow and LAML were not entitled to the benefit of the exemption.
+Mr Sumptions reply to this submission was equally short.
+It was obvious that a person could not insure himself.
+As Moore Bick LJ said in the Court of Appeal, para 236, the nature of the relationship between the participating member and LAML as insurer was essentially one between independent third parties.
+But it was not a pre condition of the Teckal exemption that the services which were the subject of the contract between the local authority and the other person should be services that were capable of being provided by one of the local authoritys own departments.
+Stanley Burnton LJ was right to observe that there was no reason why a public authority could not establish a captive insurer with its own resources: [2008] LGR 429, para 67.
+I would reject Mr Howells proposition that the Teckal exemption applies only where there is no agreement between two separate persons.
+That is a misreading of paras 50 and 51 of Teckal.
+It is, of course, necessary that there be a contract for pecuniary interest concluded in writing between one or more economic operators for the Directive to be applicable: see the definition of public contracts in article 1(2)(a).
+The whole point of the Teckal exemption, however, is to build on that starting point and to define the circumstances in which, as para 50 puts it, the position can be otherwise.
+It assumes that there is a contract between two separate entities.
+So the mere fact that the nature of the relationship between an insured and his insurer is essentially one between two independent parties does not, of itself, make the exemption inapplicable.
+It is a necessary consequence of the nature of that relationship that the transfer of risk from one person to another is not a service that a local authority can provide for itself.
+But I can detect no indication from what was said in paras 50 51 of Teckal and subsequent authorities that this is a factor of the slightest importance.
+This point is confirmed by the courts reasoning in Commission of the European Communities v Federal Republic of Germany (Case 480/06) [2009] ECR I 4747, para 47: see para 51, below.
+What matters is whether the arrangement satisfies the control test.
+If it does, an insurance contract is as just as eligible for exemption under Teckal as a contract for the collection and disposal of waste.
+The control test
+The first issue as to the application of the control test to this case is one of principle.
+It arises where, as in this case, several local authorities combine together to procure services from an entity which is formally distinct from any of them.
+For the Teckal exemption to apply must each contracting authority exercise the required control over the formally distinct entity itself in a manner which is similar to that which it exercises over its own departments? Or is it sufficient that the contracting authorities exercise that control over it collectively? In short, is individual control necessary?
+The answer to this question lies at the heart of this case.
+This is because of the way the Rules annexed to LAMLs Articles of Association deal with the handling and settlement of claims by LAML.
+The third paragraph of rule 21 provides that all lawyers and others appointed by LAML for the account of the participating member shall be answerable to LAML without prior reference to the participating member.
+Rule 22 sets out the powers of the board relating to recoveries from LAML.
+It provides: The board shall consider claims which may be paid by [LAML] in accordance with these rules, but the board shall have power from time to time to authorise the managers to effect and determine payment of claims without prior reference to the board.
+Without the prior agreement of the board, no member director of [LAML] shall sit on the board while it is engaged in the consideration or settlement of any claim in which the participating member of that member director is interested.
+The effect of rule 22, as Stanley Burnton LJ observed [2008] LGR 429, para 78, is that a participating member will normally be excluded from the Boards consideration of its insurance claim.
+The degree of independence of decision making in the handling and settlement of claims is apparent also from rule 21 and from article 11 of LAMLs Articles of Association which provides that a participating member shall cease to be a participating member if the board in its judgment determines it is undesirable for a participating member to continue to be a participating member.
+These provisions are both appropriate and desirable given the importance of ensuring that there is fair dealing between all the participating members if one of them seeks an indemnity from LAML.
+But they are very different from those which an individual local authority would agree to with one of its own departments.
+It is hard to see how these arrangements could be said to be similar to that which Harrow, in particular, exercises over the departments which it employs to carry out its functions as a local authority.
+Everything therefore is likely to depend on whether control can be exercised by the local authorities collectively.
+In Teckal there was collective control.
+AGAC was a consortium established by 45 Italian municipalities to manage and control energy and environmental services.
+Viano, which was a member of the consortium, had been supplied with fuel and had its heating services serviced by Teckal, which was a private company.
+It decided to switch its custom to AGAC without inviting tenders from others.
+Teckal challenged this decision on the ground that Viano had failed to comply with the then current Directives.
+It was met with the argument that Viano had merely decided to undertake these things for itself through a body which had been set up for the purpose.
+The question whether individual control was necessary was not explored by the court.
+The control test in para 50 is expressed in the singular, not the plural: similar to that which it exercises over its own departments.
+The ruling is also expressed in the singular.
+But the function test in para 50 ends with the phrase the controlling authority or authorities. (emphases added) The point of principle was left open.
+So it is necessary to examine some of the later cases in which the Teckal exemption has been developed and explained to find the answer to it.
+Mr Sumption selected six cases in support of his argument that it is now plain that it is enough if the control is exercised collectively.
+He summarised his submission in this way.
+Where the contractor is controlled by a consortium of public authorities, and is sufficiently identified with their public purposes and functions, the control test will be satisfied.
+This will be so even though it is in the nature of collective control that no single authority can be said to exercise the kind of control which it would have over one of its own departments.
+In effect EU law treats the controlling group as if it were a single public authority dealing with a captive contractor that is to say, a contractor which is wholly identified with the controlling group and has no wider commercial objectives.
+There is no doubt that the case law on the Teckal exemption has become progressively clearer as the European Court has developed its jurisprudence on public procurement and has placed a growing emphasis on the underlying rationale.
+In Stadt Halle v Arbeitsgemeinschaft Thermische Restabfall und Energieverwertungsanalage TREA Leuna (Case C 26/03) [2005] ECR I 1 (Stadt Halle) the City of Halle decided to award a contract for the handling and disposal of its waste to RPL, a company with limited liability.
+Just over three quarters of RPLs shares were held by a wholly owned subsidiary of a company wholly owned by Halle.
+Just under one quarter were held by a private company.
+Leuna challenged the proposed contract on the ground that Halle had failed to comply with the Directives.
+The question was whether the existence of a substantial private shareholding in the contractor was inconsistent with the control test.
+The court observed in para 49 that in Teckal the distinct entity was wholly owned by the public authorities.
+On the other hand, participation, even as a minority, of a private undertaking excluded the possibility of the contracting authority exercising a control similar to that which it exercises over its own departments.
+This was incompatible with the Teckal exemption because the element of private capital meant that the control test was not satisfied.
+That was not a case about collective control as the City of Halle was not a member of a consortium.
+But the case is of interest nevertheless.
+In her opinion Advocate General Stix Hackl broke new ground when she addressed the issue of what she called quasi in house procurement.
+In para 49 she said that this differed from in house supply in that it involved awards to an entity entirely separate from the contracting authority and having legal personality.
+In her opinion the case turned on the application of the control test and, despite the minority shareholding, this test was satisfied: paras 62, 70.
+The court disagreed with her only on the question whether the control test was satisfied.
+Any exception to the application of the obligation to apply the Community rules in the field of public procurement must be interpreted strictly: para 46.
+In para 48 the court identified the exception on which the City of Halle sought to rely: A public authority which is a contracting authority has the possibility of performing the tasks conferred on it in the public interest by using its own administrative, technical and other resources, without being obliged to call on outside entities not forming part of its own departments.
+In such a case, there can be no question of a contract for pecuniary interest concluded with an entity legally distinct from the contracting authority.
+There is therefore no need to apply the Community rules in the field of public procurement.
+The minority shareholding by the private company in RPL made all the difference, however.
+The award of a public contract to what the court termed a semi public company without calling for tenders would interfere with the objective of free and undistorted competition and give it an advantage over its competitors: para 51.
+The control test was not satisfied.
+In Parking Brixen GmbH v Gemeinde Brixen (Case C 458/03) [2005] ECR I 8585 (Parking Brixen) the municipality of Brixen granted a concession for the management of two car parks to a company which it wholly owned.
+The court held that this was a public service concession to which the then applicable Directive did not apply: para 43.
+But it said that public authorities are nevertheless bound to comply with the fundamental rules of the EC Treaty in general and with the principles of non discrimination on grounds of nationality in particular as set out in articles 12EC, 43EC and 49EC: para 49.
+Their application did not depend on the existence of a contract.
+The Teckal principles could be transposed to the Treaty provisions, but it was not appropriate to apply the Community rules to public service concessions which were excluded from the scope of the public procurement Directives: para 61.
+The application of the rules in articles 12EC, 43EC and 49EC was precluded if the control exercised was similar to that which the public authority exercises over its own departments and if the concessionaire carries out the essential part of its activities with the controlling authority: para 62.
+As already noted, these findings provide authority for Mr Sumptions submission that the application of the Teckal exemption does not depend on the meaning to be given to particular words or phrases in the Directive, such as those to be found in the definition of public contracts in article 1(2)(a): see para 23, above.
+The court recognised that the basis for the Directive was to be found in the fundamental rules that were to be found in the EC Treaty.
+The problem for Brixen was that the concessionaire was a company limited by shares resulting from the conversion of a special undertaking of the public authority.
+Applying the control test as described in Teckal, the court said in para 65 that the assessment must take account of all the legislative provisions and relevant circumstances: It must follow from that examination that the concessionaire in question is subject to a control enabling the concession granting public authority to influence the concessionaires decisions.
+It must be a case of a power of decisive influence over both strategic objectives and significant decisions.
+At the time of the award the concessionaire was wholly owned by the municipality, but it had become market oriented.
+In pursuance of its objects it had begun to perform services on a commercial basis to third parties, its statute provided for the obligatory opening up of the company to private capital, considerable powers of management were conferred on its Board with in practice no control by the municipality and it could effect certain transactions up to a value of 5m Euros without the prior authority of a meeting of the shareholders: paras 67 68.
+Because of these elements it was not possible for the concession granting public authority to exercise over the concessionaire control similar to that which it exercised over its own departments.
+So the award of the concession to such a body could not be regarded as a transaction internal to the public authority to which the rules of Community law did not apply: paras 70 71.
+That case did not involve a consortium.
+But the court endorsed the point made in Stadt Halle, at para 48, that it was not appropriate to apply the Community rules on public procurement in case where a public authority performs tasks in the public interest for which it is responsible without calling upon external entities.
+The decisive influence test described in Parking Brixen, at para 65, was applied in Carbotermo SpA v Comune di Busto Arsizio (Case C 340/04) [2006] ECR I 4137 (Carbotermo).
+This was a consortium case.
+The municipality of Busto Arsizio had awarded a contract for the supply of fuel and the maintenance and upgrading of its heating equipment to AGESP SpA. Its decision to do so was challenged by Carbotermo because it did not call for tenders before awarding the contract.
+Busto Arsizio owned 99.98% of the shares in the company of which AGESP was a wholly owned subsidiary.
+The remaining 0.2% of the shares was held by a number of adjoining municipalities.
+The key issue was control.
+Applying the test described in Parking Brixen the court said in para 37: The fact that the contracting authority holds, alone or together with other public authorities, all of the share capital in a successful tenderer tends to indicate, without being decisive, that that contracting authority exercises over that company a control similar to that which it exercises over its own departments, as contemplated in para 50 of Teckal. (emphasis added) Here, for the first time, the court recognised that individual control was not necessary for the Teckal exemption to apply.
+The contracting public authority could exercise control over the contractor alone or together with other public authorities.
+The point was made despite the fact that the proportion of shares held by the other public authorities was very small.
+It was held nevertheless that the control test was not satisfied.
+The statutes of both AGESP and its parent company conferred the broadest possible discretion on the boards of each of them for their ordinary and extraordinary management.
+They gave no control or specific voting powers to the commune to enable it to restrict the boards freedom of action.
+The court said that the control that the commune was given over these two companies could be described as consisting essentially of the latitude conferred by company law of a majority of the shareholders and that this places considerable limits on its power to influence the decisions of the companies: para 38.
+The fact that any influence that it might have on AGESPs decisions was through a holding company might also weaken any control that might possibly be exercised: para 39.
+It followed that the contracting authority did not exercise over the successful tenderer a control similar to that which it exercised over its own departments.
+The court went on to deal with the Teckal function test.
+It held that the undertaking in question could be viewed as carrying out the essential part of its activities with the controlling authority within the meaning of Teckal only if that undertakings activities were devoted principally to that authority and any other activities were only of marginal significance: para 63.
+This condition could be met, where the undertaking was controlled by several public authorities, if it carried out the essential part of its activities with all of those authorities together: para 70.
+Asociacin Nacional de Empresas Forestales (Asemfo) v Transformacin Agraria SA (Tragsa) (Case C 295/05) [2007] ECR I 2999 (Asemfo) was another case about collective control.
+It was also a Treaty case.
+Tragsa was a Spanish company which was owned as to 99% by the State and as to the remaining 1% by four autonomous communities.
+It was established to carry out agricultural, forestry and other rural development activities for those public bodies.
+Although it was a legally distinct entity, it was obliged to act in accordance with instructions received from them and to carry out work at rates fixed by regulation.
+It could not negotiate terms.
+Asemfo complained that the legal regime applicable to Tragsa, which allowed it to execute public works without being subject to the public procurement rules, was not compatible with Community law.
+Advocate General Geelhoed observed in para 38 of his opinion that the effect of this regime, which created obligations in public law only, was that the contractual element between the contracting authority and the contractor considered in previous cases was entirely absent.
+But he said, following Parking Brixen, that the issue of compatibility with primary Community law, and in particular with articles 12EC, 43EC and 49EC, had to be assessed: para 52.
+The court too noted in para 54 of its judgment that the requirement for the application of the Directives relating to the existence of a contract was not met.
+But it went on to consider whether the Teckal exemption applied.
+Dealing first with the control test, the court referred to the point made in Carbotermo, at para 37, that the fact that all of the share capital in a successful tenderer is held, alone or with other public authorities, by the contracting authority tends to indicate, generally, that the contracting authority exercises over that company a control similar to that which it exercises over its own departments: para 57.
+It rejected the argument that the condition could only be met for contracts performed at the demand of the Spanish State, which held a 99% interest in Tragsa, and not those which were the subject of a demand from the autonomous communities.
+Tragsa could not be regarded as a third party in relation to the communities which held a part of its capital: paras 60 61.
+As to the function test, it said in para 62 that it followed from the case law that, where several authorities control an undertaking, that condition may be met if that undertaking carries out the essential part of its activities, not necessarily with any one of those authorities but with all of them together: Carbotermo, para 70.
+The courts finding in paras 60 61 of Asemfo as to the position of the autonomous communities is an important indication of the way the element of collective control operates.
+All members of the consortium are entitled to take the benefit of it in the application of the Teckal exemption.
+The decisive influence that a contracting authority must exercise over the contractor may be present even if it is exercisable only in conjunction with the other public authorities.
+It is also clear, as was pointed out in Asociacin Profesional de Empresas de Reparto y Manipulado de Correspondencia v Adiminstracin General del Estado (Case C 220/06) [2007] ECR I 12175, para 52, that a critical factor in the courts decision in Asemfo was that, as Tragsa was an instrument and technical service of the Spanish Administration, it was required to implement only work entrusted to it by the General Administration of the State, the autonomous communities or the public bodies subject to them.
+The principles applied in the previous cases were developed and expanded in Coditel Brabant SA v Commune dUccle (Case C 324/07) [2008] ECR I 8457 (Coditel).
+The Belgian municipality of Uccle awarded a contract for the operation of its cable television network to a co operative called Brutl, which had been set up by a consortium of municipalities with separate legal personality.
+Uccle had joined the consortium in order to be able to contract with Brutl.
+Coditel challenged the award of the contract on the ground that Uccle had not followed the public contract procurement process.
+The court held that the method of remuneration, which came not from the municipality but from payments made by the users of the network, was characteristic of a public service concession: para 24.
+So, like Parking Brixen, this was a Treaty case to which the rules set out in articles 12EC, 43EC and 49EC applied.
+Following Carbotermo, para 37 and Asemfo, para 57, the court said that the fact that Uccle, the concession granting public authority, held together with other public authorities all of the share capital in Brutl tended to indicate, but not conclusively, that the control test was satisfied: para 31.
+It was clear that Brutl was an inter municipal company whose members were all public authorities and that it was not open to private members.
+The fact that its governing council was composed of representatives of the participating public authorities showed that it was under the control of the public authorities, as they were able to exert decisive influence over both Brutls strategic objectives and significant decisions: paras 32 34.
+The fact that the governing council enjoyed the widest powers of management was noted in para 35.
+But this was not fatal because, as the court said in para 36: The question arises as to whether Brutl has thus become market oriented and gained a degree of independence which would render tenuous the control exercised by the public authorities affiliated to it.
+Having noted that Brutls object under its statutes was the pursuit of the municipal interest that being the raison dtre for its creation and that it did not pursue any interest which was distinct from that of the public authorities affiliated to it, it held that the control that was exercised over it could be regarded as similar to that exercised by the participating public authorities over their own departments: paras 38 41.
+It was the exclusively public nature of the interest that Brutl was pursuing that was decisive in this assessment.
+The court then addressed the question whether the control had to be exercised by each of the participating public authorities individually or whether it can be exercised jointly by them, with decisions taken by a majority, as the case may be: para 43.
+In answer to this question the court said it would be consistent with its reasoning in Carbotermo, paras 70 and 71, and Asemfo, para 62, to consider that the condition as to the control exercised by the public authorities may also be satisfied if account is taken of the control exercised jointly over the concessionaire by the controlling authorities.
+It then made these important rulings: 46 According to the case law, the control exercised over the concessionaire by a concession granting public authority must be similar to that which the authority exercises over its own departments, but not identical in every respect (see, to that effect, Parking Brixen, para 62).
+The control exercised over the concessionaire must be effective, but it is not essential that it be exercised individually. 47 Secondly, where a number of public authorities elect to carry out their public service tasks by having recourse to a municipal concessionaire, it is usually not possible for one of those authorities, unless it has a majority interest in that entity, to exercise decisive control over the decisions of the latter.
+To require the control exercised by a public authority in such a case to be individual would have the effect of requiring a call for competition in the majority of cases where a public authority seeks to join a grouping composed of other public authorities, such as an inter municipal cooperative society. 48 Such a result, however, would not be consistent with Community rules on public procurement and concession contracts.
+Indeed, a public authority has the possibility of performing the public interest tasks conferred on it by using its own administrative, technical and other resources, without being obliged to call on outside entities not forming part of its own departments (Stadt Halle, para 48). 49 That possibility for public authorities to use their own resources to perform the public interest tasks conferred on them may be exercised in cooperation with other public authorities (see to that effect, Asemfo, para 65.
+It noted that in Asemfo, paras 56 61 the court recognised that in certain circumstances the condition relating to the control exercised by the public authority could be satisfied where such an authority held only 0.25% of the capital in a public undertaking: para 53.
+Mr Howell said that the court had lost sight in Coditel of the fact that the purpose of the function test which was what it was discussing in Carbotermo, paras 70 and 71, and Asemfo, para 62 was different from that of the control test.
+The last sentence of para 46 was a non sequitur.
+In paras 47 48 the court had conflated two different things, namely becoming a member of an association of contracting authorities and the awarding the association a contract.
+The Directive did not apply to the first, but it did to the second.
+And the court did not, when it referred to Asemfo, para 53, ask itself what were the circumstances in which the condition could be satisfied.
+It had therefore not grappled with the Directive and its scope.
+I would not, for my part, accept these criticisms.
+It is plain that the question of collective control arose directly in that case.
+The courts reasoning shows that it was concerned with substance rather than with form.
+That was the point that was made in Asemfo.
+The proposition in the last sentence of para 46 encapsulates a perfectly rational principle.
+I do not see it as containing a non sequitur.
+The message which it conveys is very clear.
+Collective control is enough.
+Individual control is not necessary.
+In Commission of the European Communities v Federal Republic of Germany (Case 480/06) [2009] ECR I 4747 (Commission v Germany) four local authorities entered into a contract with the cleansing department of the City of Hamburg to enable it to build a larger waste treatment facility than it required for its own purposes.
+Capacity was to be reserved for them for a price to be paid to the facilitys operator so that it would serve their purposes also.
+The contract was not put out for tender.
+The Commission challenged the arrangement on the ground that there had been a failure to comply with the Directive.
+The City of Hamburg was not a member of a consortium, and it was admitted that the four local authorities did not exercise any control which could be described as similar to that which they exercised over their own departments.
+On these facts the local authorities did not satisfy the Teckal control test: para 36.
+Their contract was nevertheless held to fall outside the Directive, for three main reasons.
+First, the contract established cooperation between local authorities with the aim of ensuring that a public task they all had to perform was carried out: para 37.
+It was concluded solely by public authorities without the participation of any private party, and it did not provide for or prejudice the award of any contracts that might be necessary in respect of the construction and operation of the waste treatment facility: para 44.
+And Coditel, para 48 and 49 had established that a public authority had the possibility of performing the public interest tasks conferred on it by using its own resources without being obliged to call on outside entities not forming part of its own departments, and that it may do so in co operation with other public authorities: para 45.
+The Commission said that, had there been cooperation by means of the creation of a body governed by public law to which the various local authorities entrusted performance of the task in the public interest of waste disposal, it would have accepted that the use of the facility did not fall under the rules of the Directive: para 46.
+But it maintained that, as there was no such body, a call for tenders should have been issued.
+The court summarised its response in para 47: It must be observed, though, first, that Community law does not require public authorities to use any particular legal form in order to carry out jointly their public service tasks.
+Secondly, such cooperation between public authorities does not undermine the principal objective of the Community rules on public procurement, that is, the free movement of services and the opening up of undistorted competition in all the member states, where implementation of that cooperation is governed solely by considerations and requirements relating to the pursuit of objectives in the public interest and the principle of equal treatment of the persons concerned, referred to in Directive 92/50, is respected, so that no private undertaking is placed in a position of advantage vis vis competitors (see, to that effect, Stadt Halle, paras 50 and 51).
+The reasoning in that paragraph shows how far we have travelled since the court issued its judgment in Teckal.
+The same approach is taken whether the case concerns a service concession, to which the provisions of the Treaty apply, or a public service contract which falls within the ambit of the Directive: Sea Srl v Comune di Ponte Nossa (Case C 573/07) [2009] ECR I 8127, para 35.
+There is now a much clearer focus on the purpose of the Community rules on public procurement so as not to inhibit public authorities from co operating with other public authorities for the purpose of carrying out some of their public service tasks.
+The exact basis for the decision in Commission v Germany is not easy to detect from a reading of the courts judgment.
+But it does confirm the conditions that need to be satisfied to fall within the Teckal exemption: para 34.
+Collective control is enough, and para 47 tells us that public authorities do not require to follow any particular legal form in order to take advantage of it.
+So long as no private interests are involved, they are acting solely in the public interest in the carrying out of their public service tasks and they are not contriving to circumvent the rules on public procurement (see para 48), the conditions are likely to be satisfied.
+As to the last point, it should be noted that the management agreement between LAML and Charles Taylor & Co was put out for public tender, as were all LAMLs reinsurance contracts.
+There is nothing in para 47 of Commission v Germany which cannot equally be said of the arrangements that are under scrutiny in this case.
+I would sum up my conclusions on the control test, in the light of the guidance offered by these authorities, as follows.
+Individual control is not necessary.
+No injury will be caused to the policy objective of the Directive if public authorities are allowed to participate in the collective procurement of goods and services, so long as no private interests are involved and they are acting solely in the public interest in the carrying out of their public service tasks.
+Asemfo shows that the decisive influence that a contracting public authority must exercise over the contractor may be present even if it is exercisable only in conjunction with the other public authorities.
+This was confirmed by the last sentence of para 46 of Coditel and re affirmed in Sea Srl v Comune di Ponte Nossa, paras 54 57.
+Where such a body takes its decisions collectively, the procedure used for the taking of those decisions is immaterial: Sea Srl, para 60.
+These points illustrate the strength of the presumption referred to in Carbotermo, para 37 and Asemfo, para 57 that applies where the contracting authority holds, alone or together with other public authorities, all of the share capital in a successful tenderer.
+The fact that two or more public authorities have collaborated to secure a service which is designed exclusively for the performance of their public functions, as in Commission v Germany where they did not hold any share capital in the cleansing department, carries at least as much weight.
+The argument that the control test was satisfied failed in Carbotermo because the broadest possible discretion was conferred on the boards of the parent company and its subsidiary for their ordinary and extraordinary management.
+No control was given to the commune to enable it to restrict the boards freedom of action, in the form of specific voting powers or otherwise.
+It would have been otherwise if the commune had had power to give directions to the boards on strategic matters or important issues of policy.
+Is the control test satisfied in this case?
+This is a matter for the domestic court to determine in the light of the jurisprudence of the European Court.
+Mr Sumption accepted that, if he was wrong on the question whether individual control was necessary, his case must fail.
+For the reasons I have given in paras 48 and 49 above, I am satisfied that collective control is enough.
+This means that the test will be satisfied even though it is in the nature of collective control that no single authority can be said to exercise the kind of control which it would have over its own departments.
+The relevant facts as to the control of LAML are as follows.
+The Board had the normal powers of management under articles 4 and 36 of its Articles of Association.
+It consisted of not less than five and no more than 11 directors, of whom at least two had to be independent directors: article 16(a).
+The Chairman was selected from the directors, but he was not to be an independent director: article 16(c).
+No meeting of the directors was to be quorate unless the majority of directors present were member directors, that is to say directors representing a participating member: article 39 read with article 33(f) and (g).
+Membership was personal to the London local authority concerned, and it was not transferable: article 10.
+The participating members each had one vote at general meetings under article 15(a), and the member directors were elected by them.
+By article 1 it was provided that regulation 70 of Table A of the Companies (Tables A F) Regulations 1985 (SI 1985/805) was expressly incorporated.
+So the special resolution procedure, as defined by section 283(1) of the Companies Act 2006, applied.
+This meant that the Board was subject to direction by the participating members in general meeting, so long as they achieved a 75% majority. 100% of the voting rights at general meetings lay with the participating members.
+The insurance that might be offered to members was governed by the rules annexed to LAMLs Articles of Association.
+Under rule 16 LAML could offer only such insurance as the participating members had agreed at general meeting.
+The effect of rule 22 was that a member director of a participating member would normally be excluded from the boards consideration of its insurance claim.
+But this is a matter of detail.
+I cannot agree with Stanley Burnton LJ [2008] LGR 429, para 78 that the general picture that these provisions give is of a business the administration of which was relatively independent, or with the Court of Appeal [2010] PTSR 349, paras 131, 236 that the nature of LAMLs business and the possibly differing interests of different authorities were antithetic to the necessary local authority control.
+It is true that, when it came to claims, the nature of the relationship between each participating member as insured and LAML was essentially one between independent third parties.
+But, as I have already said, individual control is not required.
+Collective control over strategic objectives and significant decisions was with the participating members at all times.
+They controlled a service which was designed exclusively for the performance of their public functions.
+No private interests whatever were involved.
+On these facts I would hold that the Teckal control test is satisfied.
+The function test
+This issue can be dealt with quite shortly.
+The question where several public authorities control an undertaking, as the court made plain in Carbotermo, para 70, and Asemfo, para 62, is whether that undertaking carries out the essential part of its activities with all of the public authorities together in the consortium.
+As was explained in Asemfo, paras 62 and 65, this does not necessarily have to be with any one of those authorities individually.
+It is enough that it is with the same authorities collectively as exercise control over it.
+This is because, if this test is satisfied, it shows that implementation of the cooperation between the public authorities is governed solely by considerations and requirements relating to the pursuit of objectives in the public interest by those authorities.
+The absence of private capital and private customers is another important indication that the cooperation is for that purpose only, and that there is no risk of putting any private undertaking at a disadvantage vis vis its competitors: Commission v Germany, para 47.
+In this case the relevant facts are these.
+There was no private involvement in the affairs of LAML, which had no external or private capital, other than the presence on the Board of a minority of independent directors.
+This was required by the Financial Services Authority as a condition of its authorisation of LAML as an insurer.
+The main objects of the company were to provide insurance to participating members and affiliates.
+All the other objects in its Memorandum were restricted by reference to the main objects of the company.
+The expression participating member meant any London Borough that subscribed to the Memorandum and Articles of Association and had received an indemnity from LAML.
+By definition they were all public authorities.
+For the purposes of the Memorandum affiliates comprised various persons or bodies associated with a participating member in respect of whom that participating member was empowered to arrange an indemnity.
+They were insured only in their capacity as affiliates.
+LAML existed only to serve the insurance needs of its members.
+Rule 16 of its Rules confined the persons to whom LAML might offer indemnity to the London local authorities.
+It could only be provided to an affiliate if the insurance was arranged by a participating member, who was responsible for payment of the premium.
+As already noted (see para 52, above), all major contracts for the provision of goods and services to LAML were put out for public tender in accordance with the 2006 Regulations, including in particular its reinsurance contracts.
+I would hold that, on these facts, it is plain that the Teckal function test also is satisfied.
+It follows that, as the Teckal exemption applies to the 2006 Regulations and the arrangements between LAML and the London local authorities satisfy both tests, Harrow did not act in breach of the Regulations when it entered into insurance contracts with LAML under the mutual insurance scheme.
+Is a reference required?
+I would hold that the answers to be given to issue (2) and the issues about the control test do not give rise to any questions on which further guidance needs to be sought from the Court of Justice of the European Union by means of a preliminary ruling under article 267TFEU (ex article 234EC).
+Conclusion
+I would allow the appeal.
+LORD RODGER
+The facts and issues in this appeal have been explained by Lord Hope, whose detailed account I gratefully adopt.
+The ultimate question for this court is whether Brent was entitled to enter into contracts of insurance with LAML without first putting those contracts out to tender in accordance with the Public Contracts Regulations 2006 (the 2006 Regulations).
+Those Regulations were made in order to implement Directive 2004/18/EC (the Directive) on public procurement of goods, works and services.
+Even though the proceedings involving Brent have now been settled, the question arising out of those proceedings remains significant because it determines the answer to the further question: would a local authority such as Harrow be entitled, in the future, to enter into contracts of insurance with LAML without having first having complied with the 2006 Regulations?
+At the hearing before this court the debate concentrated on whether the relationship between Harrow and LAML was such that the so called Teckal exemption would take effect, with the result that the Directive would not apply and, even if that were the position, whether an equivalent exemption applies in the case of the 2006 Regulations.
+The Teckal exemption derives from what the Court of Justice said in Teckal Srl v Comune di Viano (Case C 107/98) [1999] ECR I 8121, 8154, paras 49 and 50, in relation to Council Directive 93/36/EEC on the co ordination of procedures for the award of public supply contracts: 49.
+As to whether there is a contract, the national court must determine whether there has been an agreement between two separate persons. 50.
+In that regard, in accordance with article 1(a) of Directive 93/36, it is, in principle, sufficient if the contract was concluded between, on the one hand, a local authority and, on the other, a person legally distinct from that local authority.
+The position can be otherwise only in the case where the local authority exercises over the person concerned a control which is similar to that which it exercises over its own departments and, at the same time, that person carries out the essential part of its activities with the controlling local authority or authorities.
+It is common ground that the Teckal exemption applies to the current Directive.
+In order to understand why it does so, it is necessary to look at the purpose of the Directive and the wider context in which it operates.
+The starting point is that the principal objective of the Community rules in the field of public procurement [is] the free movement of services and the opening up to undistorted competition in all the member states.
+That involves an obligation on all contracting authorities to apply the relevant Community rules where the conditions for such application are satisfied: Stadt Halle v Arbeitsgemeinschaft Thermische Restabfall und Energieverwertungsanlage TREA Leuna (Case C 23/03) [2005] ECR I 1, 46, para 44.
+So the requirements of the Directive apply where a contracting authority sets out to purchase from an outside supplier, say, a product or services which it requires.
+In that event the Directive ensures that potential suppliers have a proper opportunity to compete for the contract.
+It follows, of course, that the Directive has no application in a situation where a public authority obtains the product or services which it requires from its own resources as it is perfectly free to do.
+The Court of Justice pointed this out in para 48 of its judgment in Stadt Halle [2005] ECR I 1, 47 48: A public authority which is a contracting authority has the possibility of performing the tasks conferred on it in the public interest by using its own administrative, technical and other resources, without being obliged to call on outside entities not forming part of its own departments.
+In such a case, there can be no question of a contract for pecuniary interest concluded with an entity legally distinct from the contracting authority.
+There is therefore no need to apply the Community rules in the field of public procurement.
+In short, the Directive is not intended to protect the commercial sector by forcing public authorities to obtain the services which they need on the commercial market.
+For instance, a local authority can have its own architects department and does not need to look outside to obtain the services of an architect or architects to design municipal buildings or housing.
+It is free to obtain these services in house.
+The purpose of the Directive is simply to ensure that, if public authorities do decide to obtain the services which they need from outside bodies, proper procedures are followed to ensure that potential providers of the services have an opportunity to compete for the work.
+While the general approach is clear, its application can give rise to problems where an authority obtains the services or products which it requires not from one of its own departments, but from a separate body which, it claims, is so closely connected with it that the authority should still be regarded as, in substance, obtaining the services or products in house rather than from an outside body.
+Obviously, if interpreted over generously, that broadening of the circumstances in which the Directive does not apply might tend to undermine its effective operation.
+The two criteria laid down in Teckal are designed to guard against that risk.
+If, but only if, they are satisfied, the Directive does not apply because, even though the public authority is intending to contract with another body for the supply of the products or services, the authority can still be regarded as fulfilling its requirements in house, rather than looking to an outside body to fulfil them.
+Again, since they are preconditions for an exception to the application of the obligations in the Directive, the criteria must be interpreted strictly: Stadt Halle [2005] ECR I 1, 47, para 46.
+In practice, a local authority which can afford, say, to run its own architects department is unlikely to see any real advantage in simply establishing that department as a separate legal entity with which it can then enter into contracts to meet its requirement for architectural services.
+Such an arrangement would probably not, for example, save costs.
+But local authorities and other public bodies may well be able to make considerable savings by co operating to obtain the services and products which they require.
+For instance, a single local authority might not have enough work to make it economically worthwhile to have its own architects department; but, between them, two authorities might well have enough work to make such a department viable.
+The possibility of local authorities co operating in the provision of services has long been recognised: section 101(5) of the Local Government Act 1972 makes provision for two or more local authorities to discharge any of their functions jointly.
+So, for example, two or more local authorities may arrange for trading standards services to be provided jointly.
+Equally, two or more authorities may co operate to obtain the architectural services which they require.
+One possible way of doing this would be for the authorities to co operate to establish and finance a body which was separate from them but whose employees could design buildings for them.
+Each of the authorities would then contract with the body for the design services that it required.
+Does the Directive apply if a local authority intends to contract with such a body to provide the products or services which it requires? The Court of Justice has seen no reason to distinguish in principle between a situation where the body in question exists to serve the interests of a single local authority and a situation where it exists to serve the interests of several authorities.
+In both situations the Teckal criteria apply.
+Indeed, the cases which have come before the Court of Justice have tended to concern situations where several local authorities were co operating to obtain products and services.
+That was the position in Teckal itself and, for example, in Stadt Halle [2005] ECR I 1 and Asociacin Nacional de Empresas Forestales (Asemfo) v Transformacin Agraria SA (Tragsa) (Case C 295/05) [2007] ECR I 2999.
+In short, not only are local authorities free to use their own resources to perform the services which they exist to provide, but they may also co operate with other local authorities to ensure that, collectively, they have the necessary resources to do so.
+See, for example, Coditel Brabant SA v Commune dUccle (Case C 324/07) [2008] ECR I 8457, 8504, paras 48 49: Indeed, a public authority has the possibility of performing the public interest tasks conferred on it by using its own administrative, technical and other resources, without being obliged to call on outside entities not forming part of its own departments (Stadt Halle, para 48). 49.
+That possibility for public authorities to use their own resources to perform the public interest tasks conferred on them may be exercised in cooperation with other public authorities.
+The Court of Justice reaffirmed this, in the context of a different kind of arrangement between a number of local authorities, in Commission of the European Communities v Federal Republic of Germany (Case C 480/06) [2009] ECR I 04747, 04777, para 45.
+Where the co operation among the local authorities takes the form of establishing a body which then provides them with the necessary products or services, the Directive will not apply if, in substance, each of the co operating authorities is intending to obtain the products or services from the resources contributed by the co operating authorities for the use of the body.
+In such a case, in substance, the authority is intending to obtain the products or services in house, in co operation with other public authorities.
+Since the whole point is that the Directive does not apply in the case of such an arrangement because the public authorities are intending to obtain the products or services from their own resources which are to be administered in the public interest, it is essential that any body which the authorities establish does not involve any private investment.
+As the Court of Justice observed in Stadt Halle [2005] ECR I 1, 48, para 51: the award of a public contract to a semi public company without calling for tenders would interfere with the objective of free and undistorted competition and the principle of equal treatment of the persons concerned, referred to in Directive 92/50, in particular in that such a procedure would offer a private undertaking with a capital presence in that undertaking an advantage over its competitors.
+Under reference to this passage, the Court of Justice returned to the point in Commission v Germany [2009] ECR I 04747, 04777, para 47, where it said that the co operation among the public authorities in that case: does not undermine the principal objective of the Community rules on public procurement, that is, the free movement of services and the opening up of undistorted competition in all the member states, where implementation of that cooperation is governed solely by considerations and requirements relating to the pursuit of objectives in the public interest and the principle of equal treatment of the persons concerned, referred to in Directive 92/50, is respected, so that no private undertaking is placed in a position of advantage vis vis competitors.
+A couple of months later the Court of Justice summarised its approach in Sea Srl v Comune di Ponte Nossa (Case C 573/07) [2009] ECR I 8127, 8151, paras 45 46: the fact of the contracting authoritys holding, together with other public authorities, all the share capital in a contractor company, tends to indicate, but not conclusively, that that contracting authority exercises over that company control similar to that which it exercises over its own departments. 46.
+In contrast, the holding, even a minority holding, of a private undertaking in the capital of a company in which the contracting authority in question also has a holding too means that, on any view, it is impossible for that contracting authority to exercise over that company control similar to that which it exercises over its own departments (internal citations omitted).
+So, if a body becomes market oriented, the award of a contract to it by a public authority cannot be regarded as a transaction internal to that authority to which the rules of Community law do not apply.
+Cf Parking Brixen GmbH v Gemeinde Brixen C 458/03 [2005] ECR I 8585, 8637, para 71.
+Assuming, however, that there is no private investment, how are the Teckal criteria to be applied to a body, such as LAML, which provides services to more than one contracting authority?
+The first of the two cumulative criteria for holding that the Directive does not apply is that the local authority exercises over the person concerned a control which is similar to that which it exercises over its own departments:Teckal [1999] ECR I 8121, 8154, para 50.
+The Court of Justice has gone on to explain that this means that the authority should have a power of decisive influence over both the strategic objectives and significant decisions of the body with which it intends to contract: Parking Brixen GmbH v Gemeinde Brixen [2005] ECR I 8585, 8635, para 65.
+Is it enough, however, if this decisive influence is exercised by all the authorities combined, or must it be exercised by the individual authority which intends to contract with the body concerned? There is an obvious contrast in para 50 of Teckal (set out at para 65 above) between the reference to the control which the local authority (singular) exercises over its own departments in the first criterion and the reference to the activities which the person concerned carries out with the controlling local authority or authorities (singular or plural).
+On that basis Mr Howell QC submitted on behalf of RMP that the Directive always applies unless the authority which is intending to contract has, itself, the necessary degree of control over the other prospective party to the contract.
+But, as a matter of substance, that argument is really inconsistent with the European Courts thinking on the right of local authorities to co operate in such matters.
+As already explained, the court recognises that a local authority can perform its services for the public either entirely out of its own resources or by co operating with other local authorities to perform them out of their pooled resources.
+That co operation may take the form of the authorities establishing and financing a body to provide what they require.
+If, taken overall, the control of the body by the authorities is great enough to satisfy the first Teckal criterion, this will be an indication that the body is there to carry out the purposes of the local authorities which control it and, hence, that it is not to be regarded as an outside body vis vis any of them.
+For this reason, the mere fact that any single authority does not exert the necessary degree of control by itself is irrelevant.
+If there were ever any doubts on this matter, they were settled decisively by the decision of the Court of Justice in Coditel Brabant [2008] ECR I 8457, 8503 8504, paras 46 51: 46.
+According to the case law, the control exercised over the concessionaire by a concession granting public authority must be similar to that which the authority exercises over its own departments, but not identical in every respect (see, to that effect, Parking Brixen, para 62).
+The control exercised over the concessionaire must be effective, but it is not essential that it be exercised individually. 47.
+Secondly, where a number of public authorities elect to carry out their public service tasks by having recourse to a municipal concessionaire, it is usually not possible for one of those authorities, unless it has a majority interest in that entity, to exercise decisive control over the decisions of the latter.
+To require the control exercised by a public authority in such a case to be individual would have the effect of requiring a call for competition in the majority of cases where a public authority seeks to join a grouping composed of other public authorities, such as an inter municipal cooperative society. 48.
+Such a result, however, would not be consistent with Community rules on public procurement and concession contracts.
+Indeed, a public authority has the possibility of performing the public interest tasks conferred on it by using its own administrative, technical and other resources, without being obliged to call on outside entities not forming part of its own departments (Stadt Halle, para 48). 49.
+That possibility for public authorities to use their own resources to perform the public interest tasks conferred on them may be exercised in cooperation with other public authorities (see, to that effect, Asemfo, para 65). 50.
+It must therefore be recognised that, where a number of public authorities own a concessionaire to which they entrust the performance of one of their public service tasks, the control which those public authorities exercise over that entity may be exercised jointly.
+Although Coditel Brabant was a public concession case, the reasoning of the court is general and is equally applicable to a case like the present.
+Moreover, I see no force in Mr Howells suggestion that the last sentence of para 46 involves a non sequitur.
+Rather, the court is making the cogent point that, in a situation where a number of public authorities have combined to exert effective control over the body and any one of them intends to contract with it, the fact that this authority exercises control along with the others indicates, though not conclusively, that the body is not to be regarded as an external entity and that the Directive should therefore not apply.
+The position which the Court of Justice has adopted on this matter is not only unmistakable but is consistent with its overall thinking as to why the Directive does not apply in such cases.
+Not surprisingly, the court reaffirmed its view in Sea Srl v Comune di Ponte Nossa (Case C 573/07) [2009] ECR I 8127, 8153 8155, paras 54 63.
+Moreover, as Advocate General Trstenjak pointed out in Coditel Brabant [2008] ECR I 8457, 8482, para 82, if the individual local authority had to exercise the necessary control, then inter municipal cooperation would in future be rendered virtually impossible.
+For it is an important feature of genuine cooperation that decisions are made as equals and that one of the partners in the cooperative does not dominate.
+So the approach advocated by Mr Howell would, in effect, rule out genuine co operation or collaboration among authorities.
+The Advocate General continued: 83.
+As stated, that would render virtual impossible even pure inter municipal cooperation.
+Inter municipal cooperating regional authorities would then always have to reckon with the likelihood of having to award their tasks to private third parties making more favourable bids; that would be tantamount to the compulsory privatisation by means of procurement law of public interest tasks.
+To construe the first Teckal criterion so narrowly would be to attach disproportionate weight to competition law objectives at the same time as interfering too much with the municipalities right to self government and with it in the competences of the member states (citations omitted).
+See also Sea Srl v Comune di Ponte Nossa (Case C 573/07) [2009] ECR I 8127, 8154, paras 56 and 57. 84.
+In the light of these considerations I am satisfied that the first Teckal criterion is to be applied by reference to the control exercised by all the authorities which have co operated to establish and finance the body with which the individual authority intends to contract.
+I have already noted that the Directive will apply if there is private investment in the body with which the local authority intends to contract or if the body is market oriented.
+The Directive has to apply in such circumstances in order to prevent the body concerned enjoying an unfair competitive advantage.
+The second Teckal criterion is therefore designed to ensure that the Directive always applies unless, in substance, the body concerned only trades with the local authority or authorities unless, in short, it is not market oriented.
+In other words, the body must remain within the public authority sphere and cannot go out and compete with other suppliers for other primary insurance business on the open market.
+It would obviously be unfair if the body could compete in this way, but, when one of the local authorities was contemplating contracting with it, other suppliers were prevented from competing for the business.
+The second criterion prevents this.
+The second Teckal criterion is not difficult to apply to the facts which give rise to this appeal.
+In terms of clause 3(1) of the Memorandum, the object of LAML is to receive premiums from participating members or affiliates and to indemnify through a mutual fund the liabilities, losses or expenses incurred by participating members or affiliates in accordance with the rules.
+In other words, there is no question of LAML insuring anyone other than participating members and affiliates.
+Affiliates are public bodies sponsored by participating members.
+In that situation the essential part of LAMLs activities is, unquestionably, with the boroughs which are participating members.
+The evidence in the case shows that at the beginning of the 20th century many United Kingdom public authorities co operated to establish a mutual insurance company, Municipal Mutual Insurance Ltd (MMI), which would provide insurance cover to the authorities which were members of the company.
+MMI flourished and, over the years, established itself as the leading provider of insurance to public bodies.
+But, for various reasons, including the increase in claims against authorities in the 1980s, by 1992 MMI was no longer in a position to write new business or to renew existing business and it eventually ceased trading.
+The idea that local authorities and other public authorities should work together to arrange the efficient and economical provision of insurance cover is therefore by no means new.
+Although the detailed arrangements differ, the idea behind LAML is essentially the same as with MMI.
+The relevant London boroughs set up a company limited by guarantee, for which they provided the necessary resources by means of paid capital contributions and guaranteed capital contributions.
+In the case of a shortfall in the capital requirement of LAML, participating members (those who receive an indemnity from this company) can be called on to make an additional paid or guaranteed contribution.
+Participating members are entitled to vote at a general meeting of the company.
+In particular, it should be noted that a 75% majority of participating members present and voting at the meeting may issue any direction to the board by special resolution.
+In my view, for this reason, the authorities who contract with LAML have a power of decisive influence over both the strategic objectives and significant decisions of LAML.
+In respectful disagreement with the Court of Appeal, I would hold that this is sufficient to satisfy the first Teckal criterion.
+In summary, LAML is a vehicle which the participating London boroughs control and through which they can arrange for the provision of insurance to each other and to their affiliates out of resources which they provide in the form of capital contributions and premiums.
+No capital is contributed by any private body nor is any such contribution envisaged in the future.
+Of course, like any other insurance company, LAML reinsures some of its risks on the secondary reinsurance market and, in doing so, it follows the public procurement procedure set out in the 2006 Regulations.
+But the overall purpose and effect of the arrangement is that primary insurance should be provided to public authorities out of the resources which they and the other public authorities provide for the purpose.
+Therefore to adapt the formulation of Advocate General La Pergola in Arnhem v BFI Holding BV (Case C 360/96) [1998] ECR I 6821, 6839, para 35 so far from removing primary insurance from the ambit of the responsibilities of the local authorities, the whole purpose of the scheme is to keep it within that ambit and not to transfer it to an outside body.
+I am accordingly satisfied that in the circumstances of this case both of the Teckal criteria are satisfied and that, since the local authorities are not to be regarded as contracting with an outside body, Community legislation which is designed to secure the free movement of services and the opening up to undistorted competition has no application.
+So the Directive is not intended to apply where a borough such as Harrow intends to contract with LAML.
+The 2006 Regulations give effect to the Directive in English law.
+In other words, they are the way in which English law secures the free movement of services and the opening up to undistorted competition in relation to contracts which are to be placed by English local authorities.
+That being the purpose of the Regulations, they, too, cannot be meant to apply in circumstances where that purpose is not relevant because a contracting authority intends to contract with a body which is not properly to be regarded as an outside body.
+Although the Teckal criteria were formulated with particular reference to the predecessors of the Directive, they are simply a way of identifying situations where the authority can be regarded as obtaining the products or services which it requires in house and, so, where there is no need to secure the free movement of services and the opening up to undistorted competition.
+In my view, the criteria are an equally good indication of situations where, for that reason, the 2006 Regulations have no application.
+The insight of Advocate General Trstenjak in para 83 of her opinion in Coditel Brabant [2008] ECR I 8457, 8482, is instructive.
+To hold that the Regulations did apply in these circumstances would involve saying that the legislature intended to attach weight to competition law objectives in an area where they have no legitimate application.
+This would, in turn, involve inappropriate interference with local authorities right to co operate in discharging their public functions.
+For all these reasons, which are essentially the same as Lord Hopes, I would hold that the 2006 Regulations do not apply where a local authority, like Harrow, intends to enter into a contract of insurance with LAML.
+The appeal should accordingly be allowed.
+LORD WALKER, LORD BROWN AND LORD DYSON
+For the reasons given by Lord Hope and Lord Rodger, with which we entirely agree, we too would allow this appeal.
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+This appeal is all about the Secretary of States right to recover certain social security benefits.
+As everyone knows, a large amount of public money is spent upon a whole range of such benefits.
+Entitlement to these in all cases requires first a claim and then an award.
+Inevitably on occasion overpayments occur.
+Sometimes more is paid than the sum awarded.
+For example, following an award, say, of 60 a claimant may be sent by mistake a cheque for 120 or two cheques each for 60.
+These cases present no difficulty.
+Everyone agrees that unauthorised payments of this kind are recoverable by the Secretary of State as money paid by mistake.
+The problem arises rather when overpayments are made in accordance with an award but the award itself is higher than it should be.
+It is common ground that before any question can arise as to recovering the sums overpaid in these cases the mistaken award must first be revised.
+And it is common ground too that following such revision the Secretary of State is entitled to recover any overpayment resulting from misrepresentation or the non disclosure of a material fact.
+All this is expressly provided for by section 71 of the Social Security Administration Act 1992 (the 1992 Act).
+But does section 71 provide an exclusive code for recovery? That is the question.
+In short, what is in issue in this appeal is whether in other cases of mistakenly inflated awards most obviously in cases arising from official error (as it is called in Regulations to which I shall come) the Secretary of State is entitled to recover the sums overpaid.
+This question arises, for example, where a claimant has notified a change of circumstances (such as that he has begun full time work or that his child has left the household) and by mistake the Department overlooks (or delays actioning) the notification and continues making benefit payments at the same rate; or, indeed, where there is simply an erroneous calculation of the award.
+In cases like that is the Secretary of State permitted to seek recovery of such overpaid benefits at common law or is the exclusive route to recovery that provided by section 71 of the 1992 Act?
+The judge at first instance, Michael Supperstone QC, sitting as a deputy High Court Judge, found in favour of the Secretary of State [2009] EWHC 341 (Admin), [2009] 3 All ER 633.
+The Court of Appeal (Sedley, Lloyd and Wilson LJJ) [2009] EWCA Civ 1058, [2010] 1 WLR 1886 allowed the Child Poverty Action Groups appeal and declared: where a benefit falling within section 71(11) of the Social Security Administration Act 1992 is paid pursuant to the machinery contained in Part I Chapter II of the Social Security Act 1998, it can only be reclaimed from the claimant under section 71 of that Act (or some other specific statutory provision).
+The Secretary of State now appeals to this Court.
+The circumstances in which the question arose for decision can be briefly told.
+At some unspecified date (seemingly in about 2006) the Secretary of State adopted a practice of writing to benefit claimants who he considered had been overpaid, but where there had been no misrepresentation or non disclosure, indicating that the Department had a common law right of action to recover the overpayment.
+The letters were in substantially standard form accompanied by a document headed Questions you might have about the overpayment and asserted essentially that a mistake had been made, that too much of the relevant benefit had been paid and that the law allows us to ask you to pay back money that should not have been paid (or words to like effect).
+From March 2006 to February 2007 some 65,000 such letters were sent.
+Although no common law claim for repayment was ever in fact brought in the courts, the letters led, we are told, to the recovery of substantial sums for example, just over 4m in the year 2007/8.
+The Child Poverty Action Group, however, an organisation with a long history of bringing legal test cases on behalf of social security claimants, thought the letters were based on a false legal premise and so brought this challenge to seek appropriate declaratory relief.
+Thus it was that the issue came before the courts.
+It is convenient at this point to set out the more material parts of section 71 of the 1992 Act (as amended).
+Section 71 appears in Part III of the Act under the title Overpayments and Adjustments of Benefit Misrepresentation etc: 71.
+Overpayments general. (1) Where it is determined that, whether fraudulently or otherwise, any person has misrepresented, or failed to disclose, any material fact and in consequence of the misrepresentation or failure (a) a payment has been made in respect of a benefit to which this section applies; or (b) any sum recoverable by or on behalf of the Secretary of State in connection with any such payment has not been recovered, the Secretary of State shall be entitled to recover the amount of any payment which he would not have made or any sum which he would have received but for the misrepresentation or failure to disclose. (2) Where any such determination as is referred to in subsection (1) above is made, the person making the determination shall in the case of the Secretary of State or the First tier Tribunal, and may in the case of the Upper Tribunal or a court (a) determine whether any, and if so what, amount is recoverable under that subsection by the Secretary of State, and (b) specify the period during which that amount was paid to the person concerned. (3) An amount recoverable under subsection (1) above is in all cases recoverable from the person who misrepresented the fact or failed to disclose it. (5A) Except where regulations otherwise provide, an amount shall not be recoverable under subsection (1) unless the determination in pursuance of which it was paid has been reversed or varied on an appeal or has been revised under section 9 or superseded under section 10 of the Social Security Act 1998. (8) Where any amount paid, other than an amount paid in respect of child benefit or guardians allowance, is recoverable under (a) subsection (1) above; it may, without prejudice to any other method of recovery, be recovered by deduction from prescribed benefits. (9) Where any amount paid in respect of a couple is recoverable as mentioned in subsection (8) above, it may, without prejudice to any other method of recovery, be recovered, in such circumstances as may be prescribed, by deduction from prescribed benefits payable to either of them. (10) Any amount recoverable under the provisions mentioned in subsection (8) above (a) if the person from whom it is recoverable resides in England and Wales and the county court so orders, shall be recoverable by execution issued from the county court or otherwise as if it were payable under an order of that court; .
+Section 71(11) lists the various benefits to which the section applies.
+It is unnecessary to reproduce it here.
+It is important to note that when the 1992 Act was passed, indeed at all times before 1998, the adjudication of awards and the payment of awards were constitutionally separate functions.
+Adjudication officers (and, before them, other independent officers) were responsible for all decisions concerning the making of awards, the Secretary of State for their payment.
+By sections 1 and 8 of the Social Security Act 1998 (the 1998 Act), however, the functions of adjudication officers were transferred to the Secretary of State who thereupon became the primary decision maker in relation to the making of awards as well as remaining responsible for their payment.
+Prior to this merger of functions there had been provision for the revision of awards on a review (as well as the reversal or variation of awards on appeal).
+The 1998 Act introduced new provisions enabling the Secretary of State (by section 9) to revise, and (by section 10) to supersede, his section 8 decisions.
+This explains the language of section 71(5A).
+Essentially the same provision, however, had been made in section 71(5) which it replaced.
+As already noted, there could be no question of the Secretary of State ever seeking to recover an overpayment until the relevant award in one way or another had been formally corrected.
+These sections can be seen to reflect other provisions too in the governing legislation: regulation 17(1) of the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968) which imposes a statutory duty on the Secretary of State to pay the benefit awarded for an indefinite period, and section 17 of the 1998 Act by which the Secretary of States decision is declared to be final.
+The next matter to note is that the 1992 Act was a consolidating statute.
+The immediate forerunner of section 71 had been section 53 of the Social Security Act 1986 which in turn had replaced both section 20 of the Supplementary Benefits Act 1976 governing the recovery of overpayments of the main non contributory benefits and section 119 of the Social Security Act 1975 which governed the recovery of overpayments of contributory benefits.
+Section 119 had provided a defence if the claimant showed that he had exercised due care and diligence to avoid overpayment.
+All the other provisions had adopted the test of misrepresentation or failure to disclose that is now re enacted in section 71(1).
+The final point to note from the statutory material is the express provision made by regulation 3(5)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991) (the 1999 Regulations) for a decision of the Secretary of State under section 8 or 10 of the 1998 Act to be revised with retrospective effect at any time if, inter alia, it arose from an official error.
+Against this basic statutory background the Court of Appeal reached essentially the following conclusions.
+The statutory scheme provides for the revision of awards of benefit ab initio and once an award has been revised it is final in its revised form.
+Downward revision shows that the claimant was not, in fact, entitled to the whole of the payments received.
+It is rational for the legislature to make provision for the consequences and it is by section 71 alone that it has done so.
+Under section 71 no amount is recoverable unless the relevant determination has been successfully appealed, revised under section 9 or superseded under section 10.
+Section 71(1) then sets out the (sole) circumstances in which the Secretary of State is entitled to recover an overpayment made pursuant to an award.
+These include only cases where the original award was obtained by misrepresentation or non disclosure, and exclude cases of receipt even knowing receipt of an overpayment due to a mistaken award.
+When section 71 was enacted, adjudication was separate from administration.
+The established statutory scheme had always been understood to be exhaustive of the rights, obligations and remedies of both the individual and the state, and both then and since, awards have been conclusive of the obligation to pay and of the right to receive payment.
+In such a context it is unsurprising that the power of recovery when an award is modified should be prescribed by Parliament and not at large.
+Section 71 has not excluded any power of recovery that was previously available but has created a power of recovery where otherwise there is none.
+Mr Eadie QC for the Secretary of State disputes those conclusions.
+He contends that the Crowns common law right to recover benefits overpaid by mistake of fact or law is not excluded by the legislation either expressly (so much is clear) or by necessary implication.
+There is, submits Mr Eadie QC, nothing inconsistent between the express right of recovery in cases of misrepresentation and non disclosure provided for by section 71(1) and the common law right to seek recovery in other cases.
+The statutory right applies only to a limited class of cases and, where it does apply, it confers greater rights on the Secretary of State than would be available at common law.
+It does not allow the recipient of the benefit to rely (as would a common law claim) on a defence of change of position.
+And it allows recovery (a) from the person who misrepresented the fact or failed to disclose it (section 71(3)), (b) by deduction from prescribed benefits (section 71(8)), and (c) in certain circumstances from the prescribed benefits payable to either member of a couple (section 71(9)).
+All this is no doubt understandable: it is logical for Parliament to prescribe an easier route to recovery of overpayments against those actually responsible by misrepresentation or non disclosure for the making of the mistaken awards in the first place.
+But non constat that this should be the only route to recovery.
+After all, the misrepresentation or non disclosure might have been entirely innocent and the moral case for repayment against the recipient of an award inflated by official error might actually be stronger.
+The error might have been plain, obvious and major and the recipient well aware of it but determined to take advantage of it none the less.
+Such a view is supported too by regulation 3(5)(a) of the 1999 Regulations.
+Why make provision for the retrospective revision of mistaken awards arising from official error if it is not possible then to remedy the mistake? True, if the error disadvantages the claimant and he is underpaid, the error can be remedied retrospectively.
+But if the error leads to overpayment and the Child Poverty Action Group are right, there can be no recovery against the recipient.
+This would represent a lacuna in the scheme.
+Mr Eadie in addition seeks to pray in aid what he submits is the analogous decision of the House of Lords in Deutsche Morgan Grenfell Group plc v Inland Revenue Comrs [2006] UKHL 49, [2007] 1 AC 558 (DMG) by which the taxpayer was held entitled at common law to recover an overpayment of tax notwithstanding a statutory provision comprehensively dealing with overpayments in the case of anyone who has paid [income tax or capital gains] tax charged under an assessment (section 33 of the Taxes Management Act 1970).
+Given that section 33 did not apply in that case because there had been no valid assessment, the taxpayer was held permitted to bring a common law restitution claim.
+It is Mr Eadies submission that by the same token, given that the Secretary of State here cannot recover under section 71(1) save in cases of misrepresentation or non disclosure, he should in other cases be entitled to seek recovery at common law.
+I have not found this an altogether easy case and, like Sedley LJ in the court below, regard the arguments as closely balanced.
+In the end, however, with Mr Drabble QCs help, I have come to the same conclusion as the Court of Appeal, namely that section 71 constitutes a comprehensive and exclusive scheme for dealing with all overpayments of benefit made pursuant to awards.
+Essentially my reasoning is as follows.
+As everyone agrees, no question of the recovery of any overpayment can arise until the award has been corrected.
+So far as recovery under section 71(1) is concerned, this indeed is expressly stipulated by section 71(5A) (and section 71(5) before it).
+But it would be surprising to find a common law right to restitution on grounds of mistake to be similarly constrained and more surprising still to find no relevant provision (akin to section 71(1)) giving effect to such a right.
+As already noted, when section 71 was enacted, there was a division of functions between the adjudication of awards and their payment.
+Since the Secretary of State paid the benefit awarded pursuant to a statutory duty, there could be no question of his having made a mistake of fact or law in making the payment.
+Thus, as the Court of Appeal noted, section 71 and its predecessor sections created a power of recovery when otherwise there would have been none.
+This explains too why section 71 contains no express exclusion of any common law right of recovery: there simply was none and it is hardly surprising that no such exclusion was inserted in 1998 when the adjudicatory and payment functions merged.
+What, in short, is striking about section 71 is not its omission of an express exclusion of common law rights but rather its omission of any provision recognising or giving effect to any such rights.
+As is well known, common law restitution claims are, at the best of times, far from straightforward.
+Not the least of their difficulties, a difficulty at its most pronounced in the context of social security benefit claimants, is the defence of change of position.
+Part III of the 1992 Act provides, of course, not just for an express entitlement to recover overpaid benefits in cases of misrepresentation or non disclosure, but also for the whole process of determining the facts relevant to such entitlement, including making provision for appeals to a tribunal.
+It seems to me inconceivable that Parliament would have contemplated leaving the suggested common law restitutionary route to the recovery of overpayments available to the Secretary of State to be pursued by way of ordinary court proceedings alongside the carefully prescribed scheme of recovery set out in the statute.
+Such an arrangement, moreover, would seem to me to create well nigh insoluble problems.
+Could there, for example, be parallel recovery proceedings against the maker of the misrepresentation under section 71(3) and against the recipient of the benefit at common law in the courts? And in the event of successful claims, could there then be deduction from prescribed benefits under section 71(8) against the misrepresentor (or possibly against the other member of a couple under section 71(9)) as well as execution against the actual recipient under the ordinary processes of law?
+With regard to Mr Eadies point that a stronger moral argument for recovery of overpayments may exist in cases of the knowing receipt of mistaken awards than, say, in cases of innocent misrepresentation, I would pose these questions.
+First, this being so, why would Parliament not prescribe the same stronger recovery powers for these cases as for cases of misrepresentation and non disclosure and include them within the statutory recovery scheme? Secondly, why would Parliament not make express provision for this separate category of cases, similarly prescribing the conditions for the Secretary of States entitlement to recovery, such as that the claimant knew that he had been overpaid and/or that he had not changed his position? The answer to both must surely be that in the case of recipients of social security benefits Parliament from first to last has taken the view that only those who themselves brought about the overpayments should be liable to reimburse them and that in their cases reimbursement should be made easily enforceable.
+Such a scheme is entirely rational.
+For better or for worse those benefiting from official errors are not subject to recovery proceedings.
+I am persuaded that section 71 does indeed necessarily exclude whatever common law restitution rights the Secretary of State might otherwise have.
+The title to Part III of the Act, Overpayments and Adjustments of Benefit, not merely suggests but to my mind provides for a comprehensive and exclusive scheme for both the correction and consequences of mistaken benefit awards.
+As for Mr Eadies reliance on the DMG line of cases with regard to the tax regime, for my part I find the suggested analogy unconvincing.
+This is not for the reasons suggested by the Court of Appeal (see in particular Lloyd LJs judgment at paras 33 35), namely that DMG involved an overpayment to the state whereas the present case involves an overpayment by the state; that, I would agree with Mr Eadie, is neither a logical nor a principled distinction.
+Rather it is because, whereas section 33 of the Taxes Management Act 1970 only purported to deal with overpayments of tax charged under an assessment, leaving other overpayments to be dealt with outside the statutory scheme, section 71 deals with the overpayment of benefit pursuant to erroneous awards in all cases and, by necessary implication, deals too with the conditions for the recovery of such overpayments.
+this appeal.
+In the result, I would endorse the Court of Appeals declaration and dismiss
+SIR JOHN DYSON SCJ
+The issue that arises on this appeal is whether the Secretary of State is entitled to recover at common law overpaid social security payments that were made pursuant to a decision made under section 8(1)(a) of the Social Security Act 1998 (the 1998 Act), or whether the right to recovery provided for in section 71 of the Social Security Administration Act 1992 (the 1992 Act) is the exclusive route to recovery.
+It is not in dispute that this raises a question of statutory interpretation.
+The answer to the question requires in the first place an understanding of the relevant statutory history.
+The salient features of the history are these.
+The immediate precursor to section 71 of the 1992 Act (a consolidating Act) was section 53 of the Social Security Act 1986 (the 1986 Act) whose terms were not materially different from those of the later provision.
+Before 1986, the rule governing the recovery of overpayments of contributory benefits was contained in section 119 of the Social Security Act 1975 and the rule governing the recovery of the main means tested non contributory benefit (supplementary benefit) was contained in section 20 of the Supplementary Benefits Act 1976.
+Of critical importance is the fact that until the 1998 Act, there was a division between the adjudicating authorities responsible for fact finding, decisions on legal issues and the quantification of the award on the one hand, and the body responsible for payment on the other.
+From 1986 onwards, the former was carried out by an adjudication officer and the latter by the Secretary of State.
+It was only in the 1998 Act that the Secretary of State was made responsible for both the decision on the claim for benefit and the payment of the amount of the award.
+It follows that the interpretation of section 53 of the 1986 Act and section 71 of the 1992 Act must be considered against the background that at the time of those enactments 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 its calculation.
+The only possibility of mistake on the part of the Secretary of State lay in the payment of the amount awarded to be paid.
+It is common ground (and rightly so) that, if the Secretary of State overpaid by mistake, the amount of the overpayment could be recovered by a common law claim in restitution.
+Section 53(4) of the 1986 Act and section 71(5A) as it now is of the 1992 Act show that the overpayments with which these statutes are concerned are those which result from changes to an award.
+In deciding whether Parliament intended in 1986 and again in 1992 that the statutory provisions were to be an exhaustive code for recovery of overpayments by the Secretary of State, it is in my view relevant to recognise that at the time of those enactments there was no realistic possibility that the Secretary of State could recover overpayments of benefit in a common law action.
+By 1986, the law of unjust enrichment or restitution was by no means in its infancy.
+It was well understood that a person was in principle entitled to recover at common law money paid under a mistake of fact.
+But under the statutory scheme then in force, there would have been no relevant mistake on which the Secretary of State could have founded such a claim.
+Mr Eadie QC suggests that it might have been arguable in a case where there had been a mistake in the calculation of the award that a Secretary of State who paid such an award was operating under the mistake that the award was correct and/or that an analogy could properly be drawn with the position that applies where a court judgment is reversed.
+I acknowledge that such arguments might be advanced today, although I doubt whether they would succeed even now, after the considerable developments that have taken place in recent years in this area of the law.
+But it seems to me highly unlikely that Parliament would have had such arguments in mind in 1986 or 1992.
+In my view, the correct premise on which to proceed is that section 53 of the 1986 Act and section 71 of the 1992 Act were drafted on the basis that, as the law then stood, the Secretary of State was not entitled at common law to recover overpayments resulting from errors in the calculation of the award.
+At first sight, therefore, one might think that this should lead to the conclusion that the statutory provisions for recovery of overpayments were intended to be exhaustive of the right to recovery.
+There was no common law right to recovery.
+A statutory right to recovery was introduced.
+By definition, therefore, the statutory right to recovery was intended to be exhaustive.
+That was the view of the Court of Appeal as expressed at paras 25 and 27 of the judgment of Sedley LJ and I agree with it.
+At para 27, he pithily summarised the argument that Mr Drabble QC has repeated in this court which is not that section 71 has excluded any power of recovery that was previously available, but that it has created a power of recovery where otherwise there is none.
+But Mr Eadie has another string to his bow.
+He submits that, even if at the time of the enactment of sections 53 and 71 the Secretary of State had no right to recover at common law, it does not follow that, if there were a change in circumstances so that such a right to recover were to arise in the future, it would be precluded by the statutory provisions.
+As I understand it, Mr Eadie does not contend that the meaning of sections 53 and 71 could change over time.
+In this context, that would obviously be an untenable proposition.
+The position would of course be otherwise if section 71 were later amended expressly or by necessary implication.
+But that is not suggested here.
+Mr Eadies argument is directed to the true meaning of section 71 in its unamended form but he submits that it cannot be construed as having prospectively excluded by necessary implication a right which was not in contemplation at the time when it was enacted.
+In other words, Parliament cannot be taken to have excluded the possibility of a common law right to recovery arising in the future under a differently framed decision making scheme.
+I cannot accept this argument.
+I proceed on the hypothesis that, as I have already said, at the time when the statutory scheme for recovery of overpayments was enacted, there was no non statutory route for recovery.
+The statutory scheme was exhaustive at that time.
+It carefully delineated the boundaries.
+They were limited to recovery of payments made pursuant to an award by the adjudicating authorities which was in error by reason of a misrepresentation or failure to disclose any material fact.
+Simple error on the part of the adjudicating authorities was excluded.
+I would not go so far as to say that Parliament can be taken to have excluded the possibility of a common law right to recovery under a differently framed decision making scheme.
+That would be to go too far, since it would depend on the terms of the differently framed scheme.
+But I see no basis for holding that Parliament intended to allow a common law right of recovery in circumstances where the only material difference between the pre 1998 Act scheme and the 1998 scheme is that under the latter the Secretary of State determined the awards.
+Under the pre 1998 Act scheme, the section 71 code precluded common law claims for mistake, so that the Secretary of State could not recover overpayments where an award was erroneous for one of the statutory reasons.
+That code was continued after the 1998 Act without any material change.
+The only difference now was that the Secretary of State was responsible for the calculation of the award.
+The inevitable inference is that post the 1998 Act, Parliament intended the same exclusive code to continue.
+There is no basis for holding that the change in the identity of the decision maker, which was not accompanied by any change in the statutory criteria for recovery of overpayments, was intended to open the door any wider to recovery than it previously had been.
+In my view, that is sufficient to dismiss this appeal.
+But I need to deal with a further argument advanced by Mr Eadie.
+This proceeds on the basis that, contrary to the view that I have expressed, in 1986 and 1992 the Secretary of State had a common law right to recover overpayments under ordinary common law restitutionary principles.
+He accepts that this right could be displaced by statute, but that could only be done expressly or by necessary implication.
+It is common ground that there was no express abrogation of the right.
+Nor, Mr Eadie submits, was it abrogated by necessary implication.
+There are many examples of cases where the court has considered whether the provisions of a statute have impliedly overridden or displaced the common law.
+In each case, it is a question of construction of the statute in question whether it has done so.
+Deutsche Morgan Grenfell Group plc v Inland Revenue Commissioners [2006] UKHL 49, [2007] 1 AC 558 concerned a claim for compensation in respect of the payment of advance corporation tax which had been demanded contrary to the EC Treaty.
+One of the issues was whether section 33 of the Taxes Management Act 1970 excluded any common law claim on the grounds of mistake.
+Lord Hoffmann said at para 19: But the question is in the end one of construction.
+When a special or qualified statutory remedy is provided, it may well be inferred that Parliament intended to exclude any common law remedy which would or might have arisen on the same facts.
+To similar effect, at para 135 Lord Walker said: When Parliament enacts a special regime providing special rights and remedies, that regime may (but does not always) supersede and displace common law rights and remedies (or more general statutory rights and remedies).
+Whether it has that effect is a question of statutory construction.
+A similar issue arose in Revenue and Customs Commissioners v Total Network SL [2008] UKHL 19, [2008] AC 1174.
+There the question was whether the statutory scheme for recovery of VAT under the Value Added Tax Act 1994 was exclusive so as to preclude the right at common law to claim damages for unlawful means conspiracy.
+The House of Lords were split as to the result, but not, I think, as to the correct approach to the problem.
+Lord Hope said at para 31 that the statutory scheme was comprehensive and does not admit the use by the commissioners of means for collecting VAT which are not provided for by the statute.
+Lord Scott at para 60 said that an intention to bar common law claims could not be attributed to the legislature when enacting the VAT scheme.
+Lord Walker (paras 105 to 110) did not agree that the statutory code was comprehensive and exhaustive of the commissioners powers of collection of VAT.
+Lord Mance (para 130) said that for a statutory scheme to supersede or displace common law rights and remedies, the statute must positively be shown to be inconsistent with the continuation of the ordinary common law remedy otherwise available.
+He concluded (para 136) that he saw no inconsistency or even incongruity between the statute and the common law remedy in tort.
+Lord Neuberger identified a number of features of the statutory scheme which both substantively and procedurally were inconsistent with the position in relation to a common law claim.
+In other words, he explicitly applied the same inconsistency criterion as Lord Mance but, on the facts, reached the opposite conclusion.
+It will be seen that in these two cases, the court did not apply a test of necessary implication.
+Mr Eadie derives that test from the context of human rights or the principle of legality explained by Lord Hoffmann and Lord Steyn in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115.
+He relies, for example, on R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002] UKHL 21, [2003] 1 AC 563, where the question was whether section 20 of the Taxes Management Act 1970 overrode legal professional privilege.
+The House of Lords held that it did not do so.
+Lord Hoffmann emphasised that legal professional privilege was a fundamental human right long established in the common law.
+At para 8 he said that an intention to override fundamental human rights must be expressly stated or appear by necessary implication.
+He referred to the discussion of this principle by Lord Steyn and himself in Ex p Simms and other cases.
+Lord Hobhouse made the same point.
+Having referred to Ex p Simms, he said (at para 44) that the principle of statutory construction stated in that case was not new and had long been applied in relation to the question whether a statute is to be read as having overridden some basic tenet of the common law.
+The protection given by the common law to those entitled to claim legal professional privilege is a basic tenet of the common law as had been reaffirmed by B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428.
+It is in the context of such a common law right that the passage at para 45 which is relied on by Mr Eadie is to be understood.
+Lord Hobhouse said: A necessary implication is not the same as a reasonable implication as was pointed out by Lord Hutton in B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428, 481.
+A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context.
+It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included.
+A necessary implication is a matter of express language and logic not interpretation.
+In the case of B (A Minor), the question at issue was whether liability for an offence contrary to section 1(1) of the Indecency with Children Act 1960 was strict or required the proof of mens rea.
+It was held by the House of Lords that mens rea was an essential element of every criminal offence unless Parliament expressly or by necessary implication provided to the contrary.
+In so holding, they were doing no more than applying a well established common law presumption or requirement.
+Lord Steyn explicitly referred at page 470F to this presumption as the paradigm of the principle of legality.
+The context in the present case, however, is quite different.
+The question whether the Secretary of State can recover overpayments of benefit does not involve any fundamental human rights of the Secretary of State nor does it engage the principle of legality.
+I do not accept the submission that the respondents have to surmount the high hurdle erected by Lord Hutton in B (A Minor) or Lord Hobhouse in Morgan Grenfell.
+Rather the question is whether, as a matter of statutory interpretation, section 71 is an exclusive code for recovery of overpayments.
+That question is to be answered not by applying any presumptions or by saying that the common law remedy in restitution is not displaced unless, in Lord Hobhouses words, as a matter of logic, it cannot co exist with the statutory regime for recovery.
+The importance of the tax cases is that they show that the test is whether in all the circumstances Parliament must have intended a common law remedy to co exist with the statutory remedy.
+Lloyd LJ sought to distinguish the tax cases to which I have referred on the grounds that payments by the state to a person have nothing to do with the tax regime.
+He said that the difference between recovery of a social security benefit wrongly paid to a claimant on the one hand and of tax paid by a taxpayer on the other is substantial and significant.
+Of course, I accept that they are different, but like Lord Brown I do not consider that the difference is material to the question whether Parliament intended a statutory code to displace common law rights and remedies.
+There is nothing in the reasoning in the tax cases to indicate that the courts were applying a rule which was peculiar to tax cases.
+Indeed, for example, Lord Mance at para 130 of Total Network SL referred to non tax cases such as Marcic v Thames Water Utilities Ltd [2003] UKHL 66, [2004] 2 AC 42 and Johnson v Unisys Ltd [2001] UKHL 13, [2003] 1 AC 518 as being illustrative of the principle that he had articulated.
+If the two remedies cover precisely the same ground and are inconsistent with each other, then the common law remedy will almost certainly have been excluded by necessary implication.
+To do otherwise would circumvent the intention of Parliament.
+A good example of this is Marcic where a sewerage undertaker was subject to an elaborate scheme of statutory regulation which included an independent regulator with powers of enforcement whose decisions were subject to judicial review.
+The statutory scheme provided a procedure for making complaints to the regulator.
+The House of Lords held that a cause of action in nuisance would be inconsistent with the statutory scheme.
+It would run counter to the intention of Parliament.
+The question is not whether there are any differences between the common law remedy and the statutory scheme.
+There may well be differences.
+The question is whether the differences are so substantial that they demonstrate that Parliament could not have intended the common law remedy to survive the introduction of the statutory scheme.
+The court should not be too ready to find that a common law remedy has been displaced by a statutory one, not least because it is always open to Parliament to make the position clear by stating explicitly whether the statute is intended to be exhaustive.
+The mere fact that there are some differences between the common law and the statutory positions is unlikely to be sufficient unless they are substantial.
+The fact that the House of Lords was divided in Total Network SL shows how difficult it may sometimes be to decide on which side of the line a case falls.
+The question is whether, looked at as a whole, a common law remedy would be incompatible with the statutory scheme and therefore could not have been intended by co exist with it.
+I agree with Lord Brown that, for the reasons he has given, section 71 was intended to be an exhaustive code.
+Some of the difficulties that he has highlighted at para 14 of his judgment are similar to those mentioned by Lord Neuberger in Total Network SL.
+As Lord Millett put it in Unisys at para 80 of his speech, the co existence of two systems, overlapping but varying in matters of detailwould be a recipe for chaos.
+That is a powerful reason for supposing that Parliament intended the statutory code contained in section 71 of the 1992 Act to be exhaustive.
+For these reasons, as well as those given by Lord Brown, I would dismiss this appeal.
+LORD RODGER
+As Lord Brown and Sir John Dyson have explained, until 1998 there was no real possibility of the Secretary of State making a mistake in the calculation of an award that would have founded a common law claim for money paid under a mistake.
+Precisely for that reason, when originally enacted, section 71 of the Social Security Administration Act 1992 (the 1992 Act) could never have been intended to exclude such a claim.
+It is therefore, at first sight, surprising if that section has the effect of excluding a claim of that kind which might otherwise have become available when the system was altered in 1998.
+When it enacted section 71 in 1992, Parliament intended it to be the only basis for the Secretary of State to recover a benefit payment that had been wrongly calculated.
+The question is whether, when it enacted the Social Security Act 1998, it changed its view.
+The only provision in that Act which suggests that Parliament may have changed its mind is section 9(3).
+It provides that, where the Secretary of State revises a decision, the decision is to take effect as from the date on which the original decision took (or was to take) effect.
+If the respondents approach is correct, in a case where the revision is downwards in favour of the Secretary of State, Parliaments decision to give the revision retroactive effect seems to have no practical effect.
+That consideration has caused me real difficulties.
+Section 9(3) creates the problem, however; it does not solve it.
+If, by enacting section 9(3), Parliament intended the Secretary of State to be able to bring a common law claim for restitution, realistically, it could have been expected to amend section 71 of the 1992 Act.
+It did not do so.
+If, on the other hand, Parliament overlooked the possibility of such a claim, then the appropriate conclusion must be that section 71 was to continue to provide the only basis for recovering a benefit that had been wrongly calculated.
+With some hesitation, therefore, I have come to the conclusion, for the reasons given by Lord Brown and Sir John Dyson, that section 71 should be interpreted as excluding a common law remedy in this situation.
+Whether a remedy should be available in these cases is a matter for Parliament, not for this Court.
+LORD PHILLIPS
+For the reasons given by Lord Brown and Sir John Dyson, which are in perfect harmony, I would dismiss this appeal.
+I have read and agree with the judgments of Lord Brown and Sir John
+LORD KERR
+Dyson.
+For the reasons that they have given I too would dismiss the appeal.
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+Mr David Price, the Solicitor Advocate acting for the defendants, who are the appellants, at one point described the claim as a storm in a teacup.
+He was correct, but the storm is considerable.
+It involves consideration of one of the most difficult areas of the law of defamation, the defence of fair comment.
+Over 40 years ago Diplock LJ in Slim v Daily Telegraph Ltd [1968] 2 QB 157, 171 referred to the artificial and archaic character of the tort of libel.
+Some 20 years on Parker LJ in Brent Walker Group plc v Time Out Ltd [1991] 2 QB 33, 46 commented on the absurdity of the tangled web of the law of defamation.
+Little has occurred in the last twenty years to unravel the tangle, and this is particularly true of the defence of fair comment.
+Statutory reform has been proposed in the form of Lord Lester of Herne Hills private members Defamation Bill and the Ministry of Justice has undertaken to publish a draft Defamation Bill early next year.
+Both Mr Price, and Mr Caldecott QC, who has intervened on behalf of and with the support of important newspaper and broadcasting interests, have invited the court to use this appeal as a vehicle for developing the common law defence of fair comment in a manner which goes well beyond what is necessary to resolve the issues raised by this appeal.
+What are currently the elements of the defence of fair comment?
+Sitting in the Court of Final Appeal of Hong Kong in Tse Wai Chun Paul v Albert Cheng [2001] EMLR 777 Lord Nicholls of Birkenhead was concerned with the ingredients of malice that can defeat the defence of fair comment.
+Before considering that question he set out at paras 16 21, under the heading Fair Comment: The Objective Limits what he optimistically described as five non controversial matters, which were well established in relation to the defence of fair comment: 16.
+First, the comment must be on a matter of public interest.
+Public interest is not to be confined within narrow limits today: see Lord Denning in London Artists Ltd v Littler [1969] 2 QB 375, 391. 17.
+Second, the comment must be recognisable as comment, as distinct from an imputation of fact.
+If the imputation is one of fact, a ground of defence must be sought elsewhere, for example, justification or privilege.
+Much learning has grown up around the distinction between fact and comment.
+For present purposes it is sufficient to note that a statement may be one or the other, depending on the context.
+Ferguson J gave a simple example in the New South Wales case of Myerson vs Smiths Weekly (1923) 24 SR (NSW) 20, 26: To say that a mans conduct was dishonourable is not comment, it is a statement of fact.
+To say that he did certain specific things and that his conduct was dishonourable is a statement of fact coupled with a comment. 18.
+Third, the comment must be based on facts which are true or protected by privilege: see, for instance, London Artists Ltd v Littler [1969] 2 QB 375, 395.
+If the facts on which the comment purports to be founded are not proved to be true or published on a privilege occasion, the defence of fair comment is not available. 19.
+Next, the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made.
+The reader or hearer should be in a position to judge for himself how far the comment was well founded. 20.
+Finally, the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views: see Lord Porter in Turner v Metro Goldwyn Mayer Pictures Ltd [1950] 1 All ER 449, 461, commenting on an observation of Lord Esher MR in Merivale v Carson (1888) 20 QBD 275, 281.
+It must be germane to the subject matter criticised.
+Dislike of an artists style would not justify an attack upon his morals or manners.
+But a critic need not be mealy mouthed in denouncing what he disagrees with.
+He is entitled to dip his pen in gall for the purposes of legitimate criticism: see Jordan CJ in Gardiner v Fairfax (1942) 42 SR (NSW) 171, 174. 21.
+These are the outer limits of the defence.
+The burden of establishing that a comment falls within these limits, and hence within the scope of the defence, lies upon the defendant who wishes to rely upon the defence.
+These five propositions relate to elements of the defence of fair comment in respect of which the burden of proof is on the defendant.
+Cheng was primarily concerned with a sixth element absence of malice.
+A defendant is not entitled to rely on the defence of fair comment if the comment was made maliciously.
+The onus of proving malice lies on the claimant.
+The second proposition.
+This merits elaboration.
+Jurists have had difficulty in defining the difference between a statement of fact and a comment in the context of the defence of fair comment.
+The example in Myerson (1923) 24 SR (NSW) 20, 26 cited by Lord Nicholls is not wholly satisfactory.
+To say that a mans conduct was dishonourable is not a simple statement of fact.
+It is a comment coupled with an allegation of unspecified conduct upon which the comment is based.
+A defamatory comment about a person will almost always be based, either expressly or inferentially, on conduct on the part of that person.
+Judges and commentators have, however, treated a comment that does not identify the conduct on which it is based as if it were a statement of fact.
+For such a comment the defence of fair comment does not run.
+The defendant must justify his comment.
+To do this he must prove the existence of facts which justify the comment.
+The fifth proposition.
+The requirement to show that the comment is germane to the subject matter criticised and is one that an honest person could have made, albeit that that person may have been prejudiced, or have had exaggerated or obstinate views, is one that is bizarre and elusive.
+I am not aware of any action in which this has actually been an issue.
+I shall describe this element as pertinence.
+The fourth proposition.
+It is this proposition that is directly in issue in this appeal.
+The facts on which the defendants wish to rely in support of their plea of fair comment include a fact to which they made no reference in the publication complained of.
+The claimants say that they cannot rely on this, for this would run foul of Lord Nicholls fourth proposition.
+Mr Price submits that far from being well established, that proposition is contrary to authority and wrong.
+Mr Caldecott supports that submission.
+The important issue raised by this appeal is thus the extent to which, if at all, the defence of fair comment requires that the comment should identify the matter or matters to which it relates.
+The facts
+The claimants are members of the musical acts The Gillettes and Saturday Night at the Movies.
+They perform in venues across the country, at wedding receptions and other events.
+The first claimant is a singer in both acts and is their de facto manager.
+The first defendant was at all relevant times one of the two directors (the other being his wife, Christina) of the second defendant, which at all relevant times provided entertainment booking services and advertised acts and performers on its website for weddings, drinks receptions, corporate entertainment and other events.
+On 13 October 2004 the first claimant agreed that the claimants acts could be promoted by the defendants.
+This involved completing an online agreement form.
+The agreement simply permitted the defendants to promote the claimants.
+It did not require the claimants to take up any booking that was offered to them.
+The agreement form contained a link to the terms and conditions that would apply in the event that a booking was made.
+Several performances were subsequently arranged by the defendants.
+These included a booking at the Landmarc Hotel arranged in December 2005 (the Landmarc booking).
+This was cancelled by the first claimant shortly after it was made.
+The first claimant claims that this was because of the existence of a previous booking, which he had over looked.
+This is denied by the defendants.
+They contend that the claimants cancelled this booking because they had received a better offer.
+On 19 April 2006 the first claimant signed a booking agreement in relation to a performance on 31 December 2006 at Bibis, a restaurant in Leeds (the Bibis booking).
+The terms and conditions included a re engagement clause, which provided that any further bookings at the venue in the following 12 months should be through the second defendant.
+The first claimant arranged a further performance at Bibis on 9 May 2007 directly with the venue.
+He admits that he was aware of the re engagement clause.
+He says that he deliberately decided not to inform the first defendant of the booking because the new manager of Bibis would not deal with the first defendant (the latter allegation is denied by the defendants).
+When the first defendant discovered this on 27 March 2007 he sent an email to the first claimant in the following terms: Craig It appears you have taken a booking directly with Bibis.
+We will be instructing our legal team to deal with this.
+I will also be discussing this with the Musicians Union as it does appear that, aside from having no commitment to those that give you work, you are also not able to abide by the terms of your contract.
+The client and artist agree that subsequent bookings within a 12 month period, from any artist provided by 1311 Events can only be booked directly with 1311 Events.
+Forthwith, we will not be representing you any longer as we can only work with professional artists who can accept our terms and conditions.
+Kind regards
+The first claimants response on the same day prompted the first defendant to publish on the second defendants website the posting which is the subject of the claim (the posting).
+Only a small part of the first claimants email was set out in the posting and it was partially misquoted.
+The full email read as follows: Hi Jason It appears you do not know the meaning of freelance, that is what all my shows are.
+You are part of a cog which supplies all agents and artitses [sic] alike with work, one does not work without the other.
+You came to me Jason after viewing the quality of our show, your contract is mearly [sic] a formality and holds no water in legal terms.
+You should consider looking after your clients/venueus[sic] better then maybe you would not lose them.
+Do not be fooled into thinking you can lose venues and reep [sic] the benefits from others hard work, that does not hold any legal value any more.
+You [sic] offer of work to my shows over the years was minimal and neither helped nor hindered our diary.
+I am not performing in the show, and since your agreement and terms was with me there are no grounds for your terms and conditions.
+Thers [sic] is one outstanding show with you guys Aug 4th o7 we will honour the show as we have all the other shows through your agency, providing you make sure the balance fee 900.00 + vat.
+TOTAL =1057.50 is in our account 2 weeks prior to the show date, thus avoiding any cancellation [sic] of the show.
+Please confirm this can be organised within 7 days or I will cancel the date.
+I look forward to any legal trysts.
+Kind regards Craig (On behalf of the Gillettes)
+The words of the posting were: 1311 Events is no longer able to accept bookings for this artist as the Gillettes c/o Craig Joseph are not professional enough to feature in our portfolio and have not been able to abide by the terms of their contract.
+What we say: The show is an enjoyable soul and Motown experience which is popular for many events throughout the UK.
+However, following a breach of contract, Craig Joseph who runs The Gillettes and Saturday Night at the Movies has advised 1311 Events that the terms and conditions of contracts hold no water in legal terms (27.03.07).
+For this reason, it may follow that the artists obligations for your booking may also not be met.
+In essence, Craig Joseph who performs with/arranges bookings for the Gillettes and Saturday Night at the Movies may sign a contract for your booking but will not necessarily adhere to it.
+We would recommend that you take legal advice before booking this artist to avoid any possible difficulties.
+Instead we recommend any of the following professional bands and
+artists
+The posting was accessible for six weeks between April and May 2007 when it was removed following a letter from Equity on behalf of the claimants.
+The claimants allege that they lost a booking as a result of it.
+The defendants do not admit this.
+On 4 August 2007 the claimants performed at the wedding of Michael Coombes (the Coombes booking).
+This booking had been arranged by the defendants before the rupture between the parties in March.
+Shortly before the wedding the first claimant agreed to play for a further 30 minutes for 275 (cash), without VAT or the defendants commission that was charged on the main fee.
+The defendants allege that this was to evade their commission and tax.
+The claimants allege that they did not, in the end, perform the extra 30 minutes, which is why it does not appear on their records.
+In February 2008 the posting was inadvertently uploaded to a part of the defendants site where it could be accessed and it remained there until April 2008.
+The posting was removed following a solicitors letter on behalf of the claimants.
+The claimants allege that they lost a further booking in consequence.
+The defendants allege that this claim has been manufactured by the claimants.
+The claimants attach great significance to the difference between their email of 27 March 2007 and the brief summary of this in the defendants posting.
+They submit that their email merely challenged the validity of the defendants re engagement clause and cast no doubt on the claimants respect for their bookings with their customers.
+The defendants posting, however, suggested that the claimants had challenged the validity of contractual obligations in general, so that they could not be trusted to honour their engagements.
+The claimants contend that this misrepresentation of their email was deliberate.
+The pleadings
+The amended particulars of claim allege that the defendants posting bore the following meaning: the claimants are grossly unprofessional and untrustworthy and will not, and/or are unlikely to, honour any bookings made for them to perform either as The Gillettes or as Saturday Night at the Movies. (para 8)
+The amended defence pleads justification in relation to the following meaning: Meanings that the defendant alleges to be true 9.1 The first claimant on behalf of the claimants has : 9.1.1.
+Conducted himself in such a manner so as to entitle the defendants to conclude that The Gillettes were not sufficiently professional to feature in the second defendants portfolio. 9.1.2.
+Breached the terms of agreements with the second defendant. 9.1.3.
+Demonstrated a contemptuous, cavalier and unprofessional attitude to the contractual obligations as evidenced by his email of 27 March 2007. 9.2 In the circumstances, the claimants may not necessarily adhere to the terms of booking agreements signed by the first claimant. (para 9)
+The facts relied on in support of the plea of justification are: a) By passing the defendants when accepting a re engagement at Bibis; b) The first claimants email of 27 March 2007; c) The cancellation of the Landmarc booking when something better had come up.
+The defence then pleads fair comment in relation to the following parts of the posting: The Gillettes c/o Craig Joseph are not professional enough to feature in our portfolioit may follow that the artists obligations for your booking may also not be met.
+In essence, Craig Joseph who performs with/arranges bookings for The Gillettes and Saturday Night at the Movies may sign a contract for your booking but will not necessarily adhere to it.
+The facts relied upon in relation to the plea of justification are equally relied on as facts upon which the comment was based.
+The proceedings below
+On 27 April 2009, just over one month before the date fixed for the trial, the claimants issued an application for summary judgment, alternatively for an order striking out the defences, on the basis that there were no issues to go to the jury.
+Thus began the tortuous interlocutory proceedings that have culminated in this appeal.
+With hindsight it is apparent, and with a little foresight it should have been apparent at the time, that this relatively modest dispute raised issues of complexity, some of which might not prove decisive, and that the best course would be to proceed with the substantive hearing before a judge alone.
+In the event Eady J gave judgment on the claimants application on 22 May 2009.
+One issue, which occupied much time before the judge and the Court of Appeal, but which is no longer live, related to the effect on the claimants contractual obligations of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (SI 2003/3319).
+Neither party had been aware of these at the material time and it is not necessary to say any more about them.
+The claimants sought to persuade Eady J to strike out the particulars of justification on the ground that those particulars could not possibly justify the defendants posting.
+The judge declined to do so, holding that the plea of justification was sufficiently arguable to be a matter that had to be left to the jury.
+He gave the defendants permission to add to their particulars of justification conduct of the claimants that post dated the defendants posting.
+This related to the Coombes booking.
+The allegation was that the claimants had offered to play for an additional 30 minutes for a cash payment in respect of which they intended to evade both VAT and the claimants commission.
+The claimants were, however, successful in persuading Eady J to strike out the defence of fair comment.
+He gave the following reasons for doing so: 58.
+The defence of fair comment is attacked on three grounds.
+First, it is said that no part of the words complained of is capable of being classified as comment; that is to say, a jury would be perverse to come to such a conclusion.
+It is necessary to remember, in this context, that the defence is wide enough to embrace not only expressions of opinion in the more common sense but also, in some cases, inferences of fact where it is clear they are not objectively verifiable: see eg Gatley on Libel and Slander, 11th ed (2008), at para 12.7.
+For example, where a conclusion is expressed by the commentator in circumstances where it is obvious to the reader that he cannot know the answer (eg in relation to someones secret motives), it would be taken as comment rather than fact. 59.
+Here, the real sting of the libel (although this may well be for the jury to decide in due course) would appear to be the allegations that the claimants take a generally cavalier attitude to contractual obligations and are not to be trusted in business dealings.
+It seems to me that they are factual in character rather than the expression of opinions.
+All that is specifically relied upon is the allegation of a breach, which forms the subject matter of the justification defence.
+It may be thought, therefore, to add very little. 60.
+Also I cannot see that a (one sided) summary of a private contractual dispute can be said to constitute a matter of public interest. (I have already referred to the misquotation from the first claimants email of 27 March, where the impression was given that he was speaking of contracts in general rather than of the particular re engagement term sought to be imposed by the defendants.
+This does not arise for consideration in the present context, although it would plainly be relevant if the plea of fair comment were to survive in determining whether or not it had been made with reference to facts truly stated.)
+The Court of Appeal [2009] EWCA Civ 1075; [2010] ICR 642 declined to reinstate the defence of fair comment.
+Pill LJ gave the only reasoned judgment, with which Hooper and Wilson LJJ agreed.
+Pill LJ held that the words in their posting identified by the defendants as comment were, indeed, comment rather than allegations of fact (paras 29 to 31).
+Pill LJ did not refer to authorities which indicate that, if there is an issue of whether words are fact or comment, this is a matter for the jury.
+His finding can be upheld on the basis that the words in question are unarguably comment, and it has not been challenged in this court.
+So far as concerns the question of whether the comment related to a matter of public interest, Pill LJ said this, at para 37: I see no merit in the argument that the comment cannot constitute a matter of public interest.
+Those in the business of entertaining the public, a business in which many people are engaged, will be concerned, when serving the public, to know which artists can be relied on to perform their contracts and which cannot.
+The comment is arguably in the public interest.
+The last sentence suggests that Pill LJ considered that this issue was one for the jury, whereas the authorities indicate that it is a question of law for the judge.
+The claimants have, however, treated Pill LJs ruling as a finding that the subject matter of the comment was a matter of public interest and have not challenged that finding.
+Pill LJ accepted a point raised by the claimants by a respondents notice.
+They contended that the defence of fair comment was bad because the comment was founded on the statement allegedly made by the claimants in their email of 27 March 2007, which was falsely described in the defendants posting.
+They argued (i) that a defence of fair comment can only be founded on a comment which refers to or identifies the facts on which the comment is based and (ii) that those facts must be true.
+The defendants argued that, by virtue of the provisions of section 6 of the Defamation Act 1952, they could also rely to support their comment on the breach by the claimants of the Landmarc contract in 2005.
+In rejecting this submission Pill LJ applied the fourth proposition of Lord Nicholls in Cheng: 40.
+The words complained of, however, do also allege that the claimants have not been able to abide by the terms of their contract and that the email was written following a breach of contract, thus possibly attracting an application of section 6 of the Defamation Act 1952.
+Under the heading Fair Comment, the section provides: In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expressions of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved. 42.
+Clearly, the defendants real complaint against the claimants was a breach by the claimants of the re engagement clause in the contract between the claimants and the second defendant.
+There is no reference to that in the words complained of.
+The contract is not identified in the publication, still less the term allegedly breached.
+Moreover, the single specific allegation of fact in the words complained of is plainly untrue. 43.
+Mr Price relied, in a section 6 context, on the more general allegations repeated above.
+In paragraph 10.2 of the re amended defence, the defendants rely on the facts set out at in paragraph 9, other than in paragraph 9.16.
+Paragraphs 9.1 to 9.12 refer to the contract between the claimant and the second defendant and to the re engagement term.
+Paragraphs 9.13 and 9.14, however, refer to an alleged breach of a booking arrangement with Landmarc in Bournemouth in December 2005.
+That alleged breach was sufficiently identified in the words complained of, it was submitted. 44.
+As Lord Nicholls stated in Tse Wai Chun Paul, at para 19, the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made.
+Does section 6 of the 1952 Act permit the defendants, in this context, to rely on the breach alleged in paragraphs 9.13 and 9.14 [breach of Landmarc booking] 45.
+I have come to the conclusion that the defence of fair comment should not be permitted to stand, on an application of section 6, on the strength of an alleged breach of contract with a hirer in December 2005.
+The dispute arose in March 2007 following an alleged breach by the claimants of the re engagement term in their contract with the second defendant.
+That breach gave rise to the publication which led to the present action. 46.
+The breach of contract relied on for present purposes is of a contract with a hirer in 2005.
+As between the claimants and defendants, there were no repercussions in that contractual relations proceeded without complaint until March 2007.
+The words following a breach of contract in the words complained of cannot be taken as referring to the December 2005 breach.
+Nor, in my judgment, can the later words in the defendants comments.
+In my judgment, a jury could not properly base a finding of fair comment against the claimants, given the nature of the comment, upon a breach of contract in December 2005 14 months before the breach which led to the publication.
+On this ground, the judges decision to strike out the defence of fair comment is to be upheld.
+The issues
+The issues raised by this appeal are as follows: i) Can the defendants rely in support of their plea of fair comment on matters to which they made no reference in their comment? ii) Are the matters to which the defendants did refer in their comment capable of sustaining a defence of fair comment?
+The development of the defence of fair comment
+When citing from the relevant authorities I propose to place in italics passages that are of particular relevance to the issues on the appeal.
+The history of the defence of fair comment is helpfully summarised by Paul Mitchell in Chapter 8 of The Making of the Modern Law of Defamation (2005).
+It originated at a time when malice was an essential element in the tort of defamation but malice was normally implied unless rebutted.
+Originally criticism of literary works and works of art was protected in so far as no presumption of malice arose in respect of such publications.
+Of necessity such publications identified the subject matter of the comment and it was implicit in some judgments that the matter to which the criticism related would be set out before the criticism was made see Cooper v Lawson (1838) 8 Ad & E 746.
+In the first half of the 19th century the subject matter that could found a defence of fair comment was extended to other matters of public interest and, in particular, to the acts of persons in public life Turnbull v Bird (1861) 2 F & F 508.
+Campbell v Spottiswoode (1863) 3 B & S 769 is perhaps the most important foundation stone of the modern law of fair comment.
+The plaintiff was a dissenting Protestant minister who had a scheme for advancing the propagation of the gospel in China by promoting the sales of a newspaper containing a series of letters emphasising the importance of this.
+The defendant published an attack on the plaintiff in a rival newspaper alleging that the plaintiffs motive was not to take the gospel to the Chinese but to make money out of the sales of his newspaper, and that the names and descriptions of subscribers published in the newspaper were fictitious.
+The publication made it plain that these allegations were no more than inferences, albeit that they were inferences of fact.
+The court drew a distinction between attacking the scheme and attacking the character of its proponent.
+Cockburn CJ said, at p 777: I think the fair position in which the law may be settled is this: that where the public conduct of a public man is open to animadversion, and the writer who is commenting upon it makes imputations on his motives which arise fairly and legitimately out of his conduct so that a jury shall say that the criticism was not only honest, but also well founded, an action is not maintainable.
+But it is not because a public writer fancies that the conduct of a public man is open to the suspicion of dishonesty, he is therefore justified in assailing his character as dishonest.
+Crompton Js judgment was to similar effect.
+He observed, at p 778: Nothing is more important than that fair and full latitude of discussion should be allowed to writers upon any public matter, whether it be the conduct of public men, the proceedings in courts of justice or in Parliament, or the publication of a scheme or of a literary work.
+But it is always to be left to a jury to say whether the publication has gone beyond the limits of a fair comment on the subject matter discussed.
+A writer is not entitled to overstep those limits and impute base and sordid motives which are not warranted by the facts, and I cannot for a moment think that, because he has a bona fide belief that he is publishing what is true, that is any answer to an action for libel.
+With respect to the publication of the plaintiffs scheme, the defendant might ridicule it and point out the improbability of its success; but that was all he had a right to do.
+It is not entirely clear whether the court was holding that defamatory inferences in relation to motive could be justified provided that they were reasonable, or whether it considered that such inferences had to be justified by showing that they were true.
+Certainly Mellor J, at pp 782 783, appears to have taken the latter view.
+In Merivale v Carson (1887) 20 QBD 275, 280 281 Lord Esher MR cited the passage from Crompton Js judgment in Campbell v Spottiswoode and then addressed the question of what was meant by fair comment: What is the meaning of a fair comment? I think the meaning is this: is the article in the opinion of the jury beyond that which any fair man, however prejudiced or however strong his opinion may be, would say of the work in question? Every latitude must be given to opinion and to prejudice, and then an ordinary set of men with ordinary judgment must say whether any fair man would have made such a comment on the work .
+Mere exaggeration, or even gross exaggeration, would not make the comment unfair.
+However wrong the opinion expressed may be in point of truth, or however prejudiced the writer, it may still be within the prescribed limit.
+The question which the jury must consider is this would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said of the work which is criticised? If it goes beyond that, then you must find for the plaintiff; if you are not satisfied that it does, then it falls within the allowed limit, and there is no libel at all.
+The nature of fair comment was further clarified by Collins MR in McQuire v Western Morning News Co Ltd [1903] 2 KB 100.
+The subject of the action was a swingeing condemnation of the merits of a musical play.
+The Master of the Rolls observed at p 108 that there was no evidence of actual malice, no personal imputations and no allegations of fact.
+In these circumstances he held at p 112 that if comment was to be fair it had to be relevant and not such as to disclose in itself actual malice.
+In Dakhyl v Labouchere, (Note) reported at [1908] 2 KB 325, the House of Lords was concerned not with literary criticism but with a publication that described a doctor as a quack of the rankest species.
+Lord Atkinson, who made the most substantial speech, expressed the view, at p 329, that a personal attack could form part of a fair comment on facts stated provided that it was a reasonable inference from those facts.
+His speech was cited at length by Fletcher Moulton LJ in Hunt v The Star Newspaper Co Ltd [1908] 2 KB 309.
+That appeal concerned publications imputing to the plaintiff improper conduct in the discharge of his duties as a deputy returning officer at a municipal election.
+Thus the complaint related to allegations of fact but the sting of the article was that the conduct of the plaintiff had been politically motivated.
+The Court of Appeal in that case drew a distinction between the test of fair comment in relation to literary criticism, as laid down in Merivale v Carson 20 QBD 275, and the test of fair comment in relation to a personal attack on an individual.
+In the present context, however, this decision is particularly significant for what was said in respect of the difference between comment and allegations of fact.
+Because of the significance attached to this judgment in later cases, I shall set out at a little length the most significant extracts, at pp 319 321: The law as to fair comment, so far as is material to the present case, stands as follows: In the first place, comment in order to be justifiable as fair comment must appear as comment and must not be so mixed up with the facts that the reader cannot distinguish between what is report and what is comment: see Andrews v Chapman (1853) 3 C & K 286.
+The justice of this rule is obvious.
+If the facts are stated separately and the comment appears as an inference drawn from those facts, any injustice that it might do will be to some extent negatived by the reader seeing the grounds upon which the unfavourable inference is based.
+But if fact and comment be intermingled so that it is not reasonably clear what portion purports to be inference, he will naturally suppose that the injurious statements are based on adequate grounds known to the writer though not necessarily set out by him.
+In the one case the insufficiency of the facts to support the inference will lead fair minded men to reject the inference.
+In the other case it merely points to the existence of extrinsic facts which the writer considers to warrant the language he uses.
+Any matter, therefore, which does not indicate with a reasonable clearness that it purports to be comment, and not statement of fact, cannot be protected by the plea of fair comment.
+In the next place, in order to give room for the plea of fair comment the facts must be truly stated.
+If the facts upon which the comment purports to be made do not exist the foundation of the plea fails.
+Finally, comment must not convey imputations of an evil sort except so far as the facts truly stated warrant the imputation.
+To allege a criminal intention or a disreputable motive as actuating an individual is to make an allegation of fact which must be supported by adequate evidence.
+I agree that an allegation of fact may be justified by its being an inference from other facts truly stated, but in order to warrant it the jury must be satisfied that such inference ought to be drawn from those facts.
+Fletcher Moulton LJ, and the other members of the court, thus drew a distinction between (i) defamatory allegations of fact, which had to be clearly and fairly stated, and to be true; (ii) literary criticism, which need not be reasonable but had to be honest, and (iii) imputations of motive amounting to an attack on the character of the plaintiff, which had to be reasonably drawn from the facts.
+The judgment of Fletcher Moulton LJ is the first that deals with the question of whether the publication must set out or identify the facts upon which the defamatory comment is based.
+It is implicit in his judgment that it must and for a reason that he explains.
+The injustice that an unjustified defamatory comment can cause to the plaintiffs reputation will be mitigated if the reader can see the basis of the comment and thus be in a position to appreciate that it is not justified.
+The Lord Justice contrasted this position with one where the reader concluded that the facts upon which the comment was based were not set out in the article, but were within the personal knowledge of the writer.
+The clear inference was that the defence of fair comment could not apply to the latter situation.
+The defence of fair comment again received consideration by the House of Lords in Sutherland v Stopes [1925] AC 47.
+That case was largely concerned with the implications of the rolled up plea, and I have not found it of much assistance in relation to the issues arising on this appeal.
+A comment of Viscount Finlay, at p 64, is of interest for the light that it throws on the reason why the question of whether a comment is on a matter of public interest has been held to be one for the judge and not the jury: A jury, according to their individual views of religion or policy, might hold the church, the army, the navy, Parliament itself, to be of no national or general importance In so stating Viscount Finlay treated this question as if fair comment was a variety of qualified privilege.
+Earlier, however, at p 62 he had summarised the law of fair comment as follows: The defendant who raises this defence does not take upon himself the burden of showing that the comments are true.
+If the facts are truly stated with regard to a matter of public interest, the defendant will succeed in his defence to an action of libel if the jury are satisfied that the comments are fairly and honestly made.
+To raise this defence there must, of course, be a basis of fact on which the comment is made.
+This, then, was the state of the law when the important case of Kemsley v Foot [1951] 2 KB 34; [1952] AC 345 fell to be decided.
+Lord Nicholls made no reference to this case in Cheng [2001] EMLR 777 and Mr Price and Mr Caldecott submit that his fourth proposition is not consistent with it.
+The publication that was the subject of the claim in Kemsley v Foot was an article by Michael Foot in the Tribune that made a virulent attack on an article in the Evening Standard, a newspaper controlled by Lord Beaverbrook.
+The plaintiff was not, however, Lord Beaverbrook, but Viscount Kemsley, a rival newspaper proprietor.
+His claim was founded on three words that provided the heading to Michael Foots article.
+The words were Lower than Kemsley.
+The plaintiff pleaded that the meaning of these words, in their context, was that he used his position as a newspaper proprietor to procure the publication of statements that he knew to be false.
+The defence included a plea of fair comment on a matter of public interest, said to be the control by the plaintiff of the newspapers of which he was proprietor.
+Particulars of the specific facts upon which the said words are a fair comment were provided separately: [1951] 2 KB 34, 40 41.
+These contained excerpts from the plaintiffs newspapers which were alleged to be inaccurate, untruthful or otherwise colourable.
+The issue was whether the plea of fair comment should be allowed to stand in circumstances where the article itself set out no facts at all that related to the plaintiff or his newspapers.
+The judge held that it should not, and struck out the plea of fair comment and the particulars pleaded in support of it.
+The Court of Appeal reversed his decision and the House of Lords affirmed the decision of the Court of Appeal.
+The judgments are not easily analysed and the author of the headnote to the decision of the Court of Appeal is to be congratulated on this concise statement of the effect of the judgments of Somervell and Birkett LJJ, with each of whom Jenkins LJ agreed: Criticism of a newspaper proprietor directed to the manner in which news is presented in papers controlled by him is to be treated on the same lines as criticism of a book or a play or other matter submitted to the judgment and taste of the public, and the critic is not to be shut out from the plea of fair comment because in his criticism he had not given or referred to examples of the conduct criticised, so long as the subject matter of the comment is plainly stated.
+Somervell LJ, at p 42, identified two situations in which there was no need for a publication to set out details of the facts upon which the comment was based in order to found a defence of fair comment.
+The first was where the comment was on a play, a book or a work of art, put before the public for its approval or disapproval.
+The second was where the comment was on the actions of a public man that had been under such vigorous discussion that a bare comment would be taken by the reader as plainly referable to them.
+The Lord Justice, at p 43, contrasted these with a third situation: At the other end of the scale one may imagine a comment reflecting on the integrity of a subordinate official, whose activities had so far received no publicity, where it might be held that the defence was not available unless the facts relied on were substantially set out or indicated.
+He went on, at p 45, to hold that criticism directed at the manner in which a newspaper presented news was to be compared to criticism of a book.
+Birkett LJ drew a similar distinction.
+He held, at p 51: I do not think it is possible to lay down any rule of universal application.
+If, for example, a defamatory statement is made about a private individual who is quite unknown to the general public, and who has never taken any part in public affairs, and the statement takes the form of comment only and is capable of being construed as comment and no facts of any kind are given, while it is conceivable that the comment may be made on a matter of public interest, nevertheless the defence of fair comment might not be open to a defendant in that case.
+It is almost certain that a naked comment of that kind in those circumstances would be decided to be a question of fact and could be justified as such if that defence were pleaded.
+But if the matter is before the public, as in the case of a book, a play, a film, or a newspaper, then I think different considerations apply.
+Comment may then be made without setting out the facts on which the comment is based if the subject matter of the comment is plainly stated.
+Lord Porter gave the leading speech in the House of Lords: [1952] AC 345.
+At p 354 he described the question for the House as being whether a plea of fair comment is only permissible where the comment is accompanied by a statement of facts upon which the comment is made and to determine the particularity with which the facts must be stated.
+At pp 355 356 Lord Porter rejected the suggestion that there was a difference in principle between literary criticism of a play, book or newspaper and criticism that implicitly attacked the character of the person responsible for the work in question.
+He observed that in each case: the subject matter upon which criticism is made has been submitted to the public, though by no means all those to whom the alleged libel has been published will have seen or are likely to see the various issues.
+Accordingly, its contents and conduct are open to comment on the ground that the public have at least the opportunity of ascertaining for themselves the subject matter upon which the comment is founded.
+I am assuming that the reference is to a known journal: for the present purpose it is not necessary to consider how far criticism without facts upon which to base it is subject to the same observation in the case of an obscure publication.
+Lord Porter then summarised his conclusions in the following passage, at pp 356 357: The question, therefore, in all cases is whether there is a sufficient substratum of fact stated or indicated in the words which are the subject matter of the action, and I find my view well expressed in the remarks contained in Odgers on Libel and Slander, 6th ed (1929), p 166.
+Sometimes, however, he says, it is difficult to distinguish an allegation of fact from an expression of opinion.
+It often depends on what is stated in the rest of the article.
+If the defendant accurately states what some public man has really done, and then asserts that such conduct is disgraceful, this is merely the expression of his opinion, his comment on the plaintiffs conduct.
+So, if with out setting it out, he identifies the conduct on which he comments by a clear reference.
+In either case the defendant enables his readers to judge for themselves how far his opinion is well founded; and, therefore, what would otherwise have been an allegation of fact becomes merely a comment.
+But if he asserts that the plaintiff has been guilty of disgraceful conduct, and does not state what that conduct was, this is an allegation of fact for which there is no defence but privilege or truth.
+The same considerations apply where a defendant has drawn from certain facts an inference derogatory to the plaintiff.
+If he states the bare inference without the facts on which it is based, such inference will be treated as an allegation of fact.
+But if he sets out the fact correctly, and then gives his inference, stating it as his inference from those facts, such inference will, as a rule be deemed a comment.
+But even in this case the writer must be careful to state the inference as an inference, and not to assert it as a new and independent fact; otherwise, his inference will become something more than a comment, and he may be driven to justify it as an allegation of fact.
+But the question whether an inference is a bare inference in this sense must depend upon all the circumstances.
+Indeed, it was ultimately admitted on behalf of the appellant that the facts necessary to justify comment might be implied from the terms of the impugned article and therefore the inquiry ceases to be Can the defendant point to definite assertions of fact in the alleged libel upon which the comment is made? and becomes Is there subject matter indicated with sufficient clarity to justify comment being made? and was the comment actually made such [as] an honest, though prejudiced, man might make?
+Lord Porter went on to deal with a matter which did not arise directly on the appeal, at pp 357 358: One further matter on which some discussion took place does not, in my opinion, directly arise on this appeal, but as it may be raised in interlocutory proceedings later in the course of the action, I think it desirable to express an opinion on it.
+In a case where the facts are fully set out in the alleged libel, each fact must be justified and if the defendant fails to justify one, even if it be comparatively unimportant, he fails in his defence.
+Does the same principle apply where the facts alleged are found not in the alleged libel but in [the] particulars delivered in the course of the action? In my opinion, it does not.
+Where the facts are set out in the alleged libel, those to whom it is published can read them and may regard them as facts derogatory to the plaintiff; but where, as here, they are contained only in particulars and are not published to the world at large, they are not the subject matter of the comment but facts alleged to justify that comment.
+In the present case, for instance, the substratum of fact upon which comment is based is that Lord Kemsley is the active proprietor of and responsible for the Kemsley Press.
+The criticism is that that press is a low one.
+As I hold, any facts sufficient to justify that statement would entitle the defendants to succeed in a plea of fair comment. 20 facts might be given in particulars and only one justified, yet if that one fact were sufficient to support the comment so as to make it fair, a failure to prove the other 19 would not of necessity defeat the defendants plea.
+The protection of the plaintiff in such a case would, in my opinion, be, as it often is in cases of the like kind, the effect which an allegation of a number of facts which cannot be substantiated would have upon the minds of a jury who would be unlikely to believe that the comment was made upon the one fact or was honestly founded upon it and accordingly would find it unfair.
+At p 360 Lord Porter commented on the passage in the judgment of Fletcher Moulton LJ in Hunt v Star Newspaper Co Ltd [1908] 2 KB 309 that I have quoted at para 39 above: He was seeking to distinguish facts from comment and in effect saying that the facts alleged must be such as to warrant an honest mans making the comment complained of.
+He had not to consider whether the facts must be set out in full or whether a reference to well known or easily ascertainable facts was a sufficient statement of those relied on.
+Lord Oaksey gave a short concurring speech.
+He said, at pp 360 361: The forms in which a comment on a matter of public importance may be framed are almost infinitely various and, in my opinion, it is unnecessary that all the facts on which the comment is based should be stated in the libel in order to admit the defence of fair comment.
+It is not in my opinion, a matter of importance that the reader should be able to see exactly the grounds of the comment.
+It is sufficient if the subject which ex hypothesi is of public importance is sufficiently and not incorrectly or untruthfully stated.
+A comment based on facts untruly stated cannot be fair.
+What is meant in cases in which it has been said comment to be fair must be on facts truly stated is, I think, that the facts so far as they are stated in the libel must not be untruly stated.
+Lord Porters remark, at pp 357 358, that where the facts were fully set out in the alleged libel each fact had to be justified echoed an observation at paragraph 87 of the 1948 Report of the Committee on the Law of Defamation (Cmd 7536), which Lord Porter had chaired.
+The Report made the following recommendations in relation to this, at paragraph 90: We accordingly recommend an amendment of the existing law analogous to that which we have recommended in relation to the defence of justification, namely that a defence of fair comment upon a matter of public interest should be entitled to succeed if (a) the defendant proves that so much of the defamatory statements of fact contained in the alleged libel is true as to justify the court in thinking that any remaining statement which has not been proved to be true does not add materially to the injury to the plaintiffs reputation, and (b) the court is also of opinion that the facts upon which the comment is based are matters of public interest and the comment contained in the alleged libel was honestly made by the defendant.
+Effect was given to the recommendations of Lord Porters Committee by the following sections of the Defamation Act 1952: 5 Justification In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiffs reputation having regard to the truth of the remaining charges. 6 Fair Comment In action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.
+It is significant that section 6 refers to facts alleged or referred to in the words complained of.
+The section lends no support to the proposition that fair comment can be based on facts which are neither alleged nor referred to in the words complained of.
+Weight was attached in argument before us to two observations of Lord Denning.
+He made the first, as Denning LJ, at pp 359 360 in Adams v Sunday Pictorial Newspapers (1920) Ltd and Champion [1951] 1 KB 354.
+The issue was whether interrogatories should be ordered in relation to the question of whether a defendant who was relying on the defence of fair comment had been activated by malice: The truth is that the burden on the defendant who pleads fair comment is already heavy enough.
+If he proves that the facts were true and that the comments, objectively considered, were fair, that is, if they were fair when considered without regard to the state of mind of the writer, I should not have thought that the plaintiff had much to complain about; nevertheless it has been held that the plaintiff can still succeed if he can prove that the comments, subjectively considered, were unfair because the writer was actuated by malice.
+The more relevant comment for present purposes was that made by Lord Denning MR in Cohen v Daily Telegraph Ltd [1968] 1 WLR 916.
+In that case the defendant pleaded, as matters on which its publication was alleged to be fair comment, facts that had occurred some weeks after the publication.
+These were struck out and the defendant appealed unsuccessfully to the Court of Appeal.
+Lord Denning observed, in an ex tempore judgment, at pp 919 920: In order to make a good plea of fair comment, it must be a comment on facts existing at the time.
+No man can comment on facts which may happen in the future.
+There is a passage in Gatley on Libel and Slander, 6th ed (1967), p 723 which goes further.
+It says: The facts which the defendant seeks to prove as the basis of his comment must have been known to him when he made the comment.
+I do not know that I would go quite so far as that.
+A man may comment on existing facts without having them all in the forefront of his mind at the time.
+Nevertheless it must be a comment on existing facts.
+If, which I doubt, Lord Denning intended to say that a defence of fair comment could be based on facts unknown to the defendant at the time of his comment, the other two members of the court did not agree.
+Davies LJ stated, at p 920: If it is necessary for the man making the comment to know the facts at the time he makes it, it follows as the night follows the day that it is impossible for him to rely on events which at that time had not happened.
+Russell LJ remarked, at p 921, that it was not disputed that the facts upon which a defence of fair comment were based could only be those known at the time of publication.
+Subsequently, in London Artists Ltd v Littler [1969] 2 QB 375, 391, Lord Denning MR stated: In order to be fair, the commentator must get his basic facts right.
+The basic facts are those which go to the pith and substance of the matter: see Cunningham Howie vs Dimbleby [1951] 1 KB 360,364.
+They are the facts on which the comments are based or from which the inferences are drawn as distinct from the comments or inferences themselves.
+The commentator need not set out in his original article all the basic facts: see Kemsley vs Foot [1952] AC 345; but he must get them right and be ready to prove them to be true.
+Judicial opinion in relation to this area of the law did not change over the next 20 years.
+In Brent Walker Group plc v Time Out Ltd [1991] 2 QB 33 the issue was whether the defence of fair comment could be based on unproven statements if these were made on a privileged occasion.
+The Court of Appeal held that it could, but only if the publication set out a fair and accurate report of the proceedings in which the privileged statements were made.
+Bingham LJ made the following summary of the law of fair comment, at p 44: The civil law of libel is primarily concerned to provide redress for those who are the subject of false and defamatory factual publications.
+Thus in the simplest case A will be entitled to relief against B if B publishes a defamatory factual statement concerning A which B cannot show to be true.
+The law is not primarily concerned to provide redress for those who are the subject of disparaging expressions of opinion, and freedom of opinion is (subject to necessary restrictions) a basic democratic right.
+It is, however, plain that certain statements which might on their face appear to be expressions of opinion (as where, for example, a person is described as untrustworthy, unprincipled, lascivious or cruel) contain within themselves defamatory suggestions of a factual nature.
+Thus the law has developed the rule already mentioned that comment may only be defended as fair if it is comment on facts (meaning true facts) stated or sufficiently indicated.
+Failing that, the comment itself must be justified.
+Bingham LJ went on to hold, at p 45, that fairness to the subject of a defamatory comment based on a privileged statement required that the commentator should at least base his comment on a fair and accurate account of the occasion on which the statement was made.
+Part of the problem with the defence of fair comment relates to the identification of which, if any, elements of the defence are subjective and which are objective.
+This question bears intimately on the question of burden of proof in relation to the various elements.
+These questions received detailed consideration by the Court of Appeal and the House of Lords in Telnikoff v Matusevitch [1991] 1 QB 102; [1992] 2 AC 343.
+The plaintiff complained of a letter published by the defendant about an article written by the plaintiff.
+The primary issue was whether the defendant could refer to portions of the article not quoted in his letter in order to demonstrate that the letter consisted of comment rather than statements of fact.
+Reversing the Court of Appeal, the majority of the House of Lords held that he could not.
+A defence of fair comment could not be made out unless it was apparent from the publication itself that the matter complained of was comment rather than an allegation of fact.
+In the course of a dissenting opinion, Lord Ackner remarked, at p 361: In my judgment the defence of fair comment is not based on the proposition that every person who reads a criticism should be in a position to judge for himself.
+It would be absurd to suggest that a critic may not say what he thinks of a play performed only once, because the public cannot go and see it to judge for themselves.
+The defence of fair comment is available to a defendant who has done no more than express his honest opinion on publications put before the public.
+It is sufficient for him to have identified the publication on which he is commenting, without having set out such extracts there from as would enable his readers to judge for themselves whether they agreed with his opinion or not.
+A subsidiary but important issue was what it was that a defendant had to prove in order to establish the defence of fair comment.
+Counsel for the plaintiff submitted that the defendant had to establish that: (i) the words complained of were comment; (ii) the comment was on facts; (iii) the facts commented on constituted a matter of public interest; (iv) the comment was objectively fair; that is the comment was one that was capable of being honestly founded on the facts to which it related, albeit by someone who was prejudiced and obstinate; (v) the comment represented the defendants honest opinion.
+If he discharged all these burdens, the defence could none the less be defeated by proof of malice on the part of the defendant, but the onus of proving malice lay on the plaintiff.
+Both the Court of Appeal and the House of Lords held that there was no burden on the defendant to establish the fifth element.
+The defendants honesty was assumed unless the plaintiff could disprove it by establishing malice.
+The most significant development of the common law of defamation in recent times has been the creation of Reynolds privilege.
+In the course of his speech in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 Lord Nicholls made some comments in relation to the defence of fair comment which were a precursor to what he subsequently said in Cheng [2001] EMLR 777.
+At p 193, he said: It is important to keep in mind that this defence is concerned with the protection of comment, not imputations of fact.
+If the imputation is one of fact, a ground of defence must be sought elsewhere.
+Further, to be within this defence the comment must be recognisable as comment, as distinct from an imputation of fact.
+The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made see the discussion in Duncan & Neill on Defamation, 2nd ed (1983), pp 58 62.
+At p 201 he referred to the fact that proof of malice denied protection to defamatory statements, whether of comment or fact.
+He added: In the case of statements of opinion on matters of public interest, that is the limit of what is necessary for protection of reputation.
+Readers and viewers and listeners can make up their own minds on whether they agree or disagree with defamatory statements which are recognisable as comment and which, expressly or implicitly, indicate in general terms the facts on which they are based.
+I cited at the outset of this judgment the five propositions in relation to fair comment advanced by Lord Nicholls in Cheng under the heading Fair Comment: The Objective Limits.
+At para 41 of that case he returned to the fourth proposition under the heading Motive: Proof of malice is the means whereby a plaintiff can defeat a defence of fair comment where a defendant is abusing the defence.
+Abuse consists of using the defence for a purpose other than that for which it exists.
+The purpose for which the defence of fair comment exists is to facilitate freedom of expression by commenting on matters of public interest.
+This accords with the constitutional guarantee of freedom of expression.
+And it is in the public interest that everyone should be free to express his own, honestly held views on such matters, subject always to the safeguards provided by the objective limits mentioned above.
+These safeguards ensure that defamatory comments can be seen for what they are, namely, comments as distinct from statements of fact.
+They also ensure that those reading the comments have the material enabling them to make up their own minds on whether they agree or disagree.
+Lord Nicholls broke new ground in holding that malice in the context of fair comment had a different meaning from malice in the context of qualified privilege.
+In the former context, the motive for making the comment was irrelevant.
+All that mattered was whether or not the commentator honestly believed in the truth of his comment.
+This was an evolution of the view that Lord Nicholls had expressed in Reynolds at [2001] 2 AC 127, 201: Freedom of speech does not embrace freedom to make defamatory statements out of personal spite or without having a positive belief in their truth.
+The authors of Gatley, 11th ed, comment, at para 12.25: Formerly, it was widely believed that the idea of malice was essentially the same in fair comment [as in qualified privilege] and that the cases were essentially interchangeable.
+It has now been demonstrated that this is incorrect.
+In holding that not even spite or ill will constituted malice, Lord Nicholls The last sentence is a remarkable tribute to the standing of the Court of Final Appeal of Hong Kong and, more particularly, of Lord Nicholls.
+[2001] EMLR 777, para 48 once again returned to his fourth proposition: Thus, the comment is one which is based on fact; it is made in circumstances where those to whom the comment is addressed can form their own view on whether or not the comment was sound; and the comment is one which can be held by an honest person.
+Lord Nicholls fourth proposition has come under attack before that launched in the present action.
+It is questioned in Duncan & Neill 3rd ed at para 13.20 and in Gatley at para 12.8.
+Eady J dissented from it at para 57 of his judgment in Lowe v Associated Newspapers Ltd [2006] EWHC 320 (QB); [2007] QB 580.
+That decision merits attention, for it contains the carefully considered views of a judge who has great experience of the law of defamation on the subject matter of the present appeal.
+The publication complained of in that case was a short paragraph about matters that will have been of interest to a large number of football supporters: the replacement of the Manager of Southampton Football Club and the claimants acquisition of ownership of the Club by a reverse takeover.
+The defendants primary case was that the paragraph complained of contained comment and was protected by the defence of fair comment.
+In the alternative, in case the publication should be held to consist of fact rather than comment, there was a plea of justification.
+The defendant pleaded some 19 pages of facts which were claimed to support both the plea of fair comment and the plea of justification.
+No less than 16 interlocutory applications were listed before the judge, but the issues to which his judgment was essentially directed were: i) To what extent is it necessary for a defendant relying upon fair comment to be able to demonstrate that the facts upon which the comment was based are to be found in the text of the words complained of? ii) How far must the author of the words complained of be aware at the time of publication of the facts sought to be relied upon to support the comment? Eady J carried out a detailed analysis of many of the authorities to which I have referred and reached the following conclusions: (1) Any fact pleaded to support fair comment must have existed at the time of publication. (2) Any such facts must have been known, at least in general terms, at the time the comment was made, although it is not necessary that they should all have been in the forefront of the commentators mind. (3) A general fact within the commentators knowledge (as opposed to the comment itself) may be supported by specific examples even if the commentator had not been aware of them (rather as examples of previously published material from Lord Kemsleys newspapers were allowed). (4) Facts may not be pleaded of which the commentator was unaware (even in general terms) on the basis that the defamatory comment is one he would have made if he had known them. (5) A commentator may rely upon a specific or a general fact (and, it follows, provide examples to illustrate it) even if he has forgotten it, because it may have contributed to the formation of his opinion. (6) The purpose of the defence of fair comment is to protect honest expressions of opinion, or inferences honestly drawn from, specific facts. (7) The ultimate test is the objective one of whether someone could have expressed the commentators defamatory opinion (or drawn the inference) upon the facts known to the commentator, at least in general terms, and upon which he was purporting to comment.
+I have some difficulty with propositions (3) and (5).
+I do not understand the nature of the support for facts within the commentators knowledge that can be derived from facts of which he was not aware.
+Nor is it easy to understand how a commentator can know that a fact is one that he has forgotten.
+Dissenting from Lord Nicholls fourth proposition in Cheng Eady J said this, at para 57: Whilst it is necessary for readers to distinguish fact from comment, it is not necessary for them to have before them all the facts upon which the comment was based for the purpose of deciding whether they agree with the comment (or inference).
+I draw that conclusion with all due diffidence, since Lord Nicholls has twice expressed the opposite view, but it does seem consistent with principle and, in particular, with the undoubted rule that people are free to express perverse and shocking opinions and may nevertheless succeed in a defence of fair comment without having to persuade reasonable readers, or the jurors who represent such persons, to concur with the opinions.
+It is difficult to see why it should matter whether a reader agrees; what matters is whether he or she can distinguish fact from comment.
+Sometimes that will be possible, as it was in Kemsley v Foot, without any facts being stated expressly, because either they are referred to or they are sufficiently widely known for the readers to recognise the comment as comment.
+This concludes my summary of the authorities which form the basis of the discussion that is to follow.
+Before proceeding to that discussion it is necessary, however, to consider the Strasbourg jurisprudence, for Mr Price invoked article 10 of the European Convention on Human Rights (the Convention) and it is necessary for this court, when considering suggested developments of the common law of defamation, to take account of the Convention and the jurisprudence of the Strasbourg Court.
+The Strasbourg jurisprudence
+Article 10 of the Convention provides: Freedom of Expression 1 Everyone has the right to freedom of expression.
+This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
+This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
+In Karako v Hungary (Application No 39311/05) (unreported) given 28 April 2009, where the applicant invoked article 10, the Strasbourg Court held at para 23 that there was no conflict between this article and article 8, which protects the right to respect for private life.
+Reputation was only the external evaluation of the individual and damage to reputation would not necessarily impact on the inner integrity which article 8 protects.
+In Pfeifer v Austria (2007) 48 EHRR 175, however, where the applicant invoked article 8, another section of the Court held at para 35 that a persons reputation formed part of his or her personal identity and psychological integrity, and thus fell within the scope of private life to which article 8 applied.
+I think that it is obvious that the right to freedom of expression is in potential conflict with the right to private life and that the fact that each right is qualified means that the law must strike an appropriate balance between the two.
+As to the striking of that balance it is possible to draw a number of principles from the Strasbourg jurisprudence.
+The relevant principles are helpfully summarised at paras 28 and 29 of Sorguc v Turkey (Application No 17089/03) (unreported) given 23 June 2009.
+Freedom of speech may be restricted in order to protect reputation where this is necessary in a democratic society to meet a pressing social need.
+Thus a test of proportionality has to be applied.
+In applying that test there is a significant distinction between a statement of fact and a value judgment.
+A statement of fact will be true or untrue and the law can properly place restrictions on making statements of fact that are untrue.
+A value judgment is not susceptible of proof so that a requirement to prove the truth of a value judgment is impossible to fulfil, and thus infringes article 10.
+However, even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment may be excessive if it has no factual basis to support it Jerusalem v Austria (2003) 37 EHRR 567, para 43.
+In Lindon.
+Otchakovsky Laurens and July v France (2007) 46 EHRR 761 the Grand Chamber went further, stating at para 55: The classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts.
+However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it, failing which it will be excessive.
+In Nilsen and Johnsen v Norway (1999) 30 EHRR 878, para 50 the court equated the imputation of improper motives or intentions with value judgments rather than statements of fact, having regard to the fact that from the wording of the statements and their context it was apparent that they were intended to convey the applicants own opinions.
+The Strasbourg Court also attaches importance to the extent to which the subject of a publication is a matter of public interest.
+The limits of acceptable criticism are wider in relation to politicians acting in their public capacity than in relation to private individuals Jerusalem v Austria (2001) 37 EHRR 567, para 38.
+In Hrico v Slovakia (2004) 41 EHRR 300, para 40g the court observed that there was little scope under article 10(2) of the Convention for restrictions on political speech or on debate on questions of public interest.
+These expressions of principle are in general consonant with the English law of defamation.
+If anything they suggest that the restrictions on the right to express opinion imposed under the law of fair comment may be over exacting.
+They do not, however, afford assistance with the question of the extent to which it is a proportionate element of the law of fair comment to require that a statement of defamatory opinion should include or identify the facts upon which the opinion is based.
+The defendants submissions
+Mr Prices submissions on behalf of the defendants fall into two parts.
+The first part of the submissions address the law as it is.
+Mr Price relies on section 6 of the 1952 Act.
+He submits that the facts alleged or referred to for the purpose of section 6 were: a. the claimants email of 27 March 2007 (a fact alleged); b. the breach of contract in relation to the Bibis booking (a fact referred to); c. the breach of contract in relation to the Landmarc booking (a fact referred to).
+Mr Price submits that it does not matter that the readers of the posting had no knowledge of the facts in relation to the two breaches of contract referred to, so that they were unable to judge for themselves how far the comment was well founded.
+In suggesting to the contrary in his fourth proposition in Cheng [2001] EMLR 777, para 19 Lord Nicholls had fallen into error.
+The error in misreporting the terms of the claimants email did not invalidate the defence of fair comment because the comment could be fairly founded on those of the facts alleged or reported that were accurate.
+Taken overall the three facts on which the comment was based were substantially true.
+Alternatively, Mr Price invites the Court to develop the common law of fair comment so that it is simplified and liberalised.
+He submits that the Court should: sweep away the requirement that the comment should relate to matter of public interest; hold that the subjective state of mind of the defendant is wholly irrelevant; restrict the requirements of the defence to (a) a requirement that the words complained of should be comment and (b) a requirement that there should be shown to exist one or more facts (or privileged statement) on which an honest person could have founded the relevant comment.
+Those facts could even come into existence after the date of the publication.
+Thus reliance could be placed on the claimants conduct in relation to the Coombes wedding.
+In short the existence of a defence of fair comment should depend on an entirely objective appraisal of the relevant facts in the same way as the defence of justification.
+Mr Price submitted that the defence should be renamed simply comment or opinion.
+The interveners submissions
+The submissions made by Mr Caldecott on behalf of the interveners were not so radical.
+He advanced six suggested principles: 1.
+To qualify for the protection of the defence of honest opinion a statement must be recognisable in its context as opinion.
+A statement of opinion may in context be an inference of fact drawn by the commentator from facts stated or indicated by him.
+Mr Caldecott submitted that even a statement of a fact that is verifiable can amount to a comment if the commentator makes it plain that he is merely expressing an opinion about the existence of the fact on the basis of an inference from other facts. 2.
+The opinion will qualify for protection if any person, however prejudiced, exaggerated or obstinate his views, could have honestly expressed it on proved facts or on alleged facts protected by privilege.
+Mr Caldecott submitted that this principle should apply to all opinions there should not be a more stringent test for opinions imputing dishonourable motives. 3.
+The opinion must be expressed on a matter of public interest.
+The interveners have not sought to abolish this requirement on the basis that such a change in the law should receive very close examination and detailed submission. 4.
+The defendant may rely on any proved facts or privileged material in existence at the time of publication, provided those facts relate to the subject matter of the comment.
+This answers the central issue of principle that arises on this appeal.
+It is the interveners case that the comment must identify its subject matter, but need not allege or refer to particular facts as the basis for the comment.
+There is no need to place the reader in a position to form his own view on the validity of the comment Lord Nicholls erred in so holding in Cheng [2001] EMLR 777, para 19.
+If facts exist at the time of the comment the commentator can rely upon them as the foundation for his comment, even if he was unaware of them when he made his comment.
+Events subsequent to the comment cannot, however, be relied upon. 5.
+If the defendant proves sufficient facts to satisfy the objective test set out in principle 2, then (subject to malice) the defence succeeds irrespective of whether facts referred to in the publication or facts relied on extrinsic to the publication are not proved or are misstated.
+This principle does not absolve a defendant from the obligation to prove defamatory statements of fact to be true (subject to section 5 of the 1952 Act). 6.
+The defence of opinion is lost where a claimant proves that the defendant did not act honestly in publishing the opinion complained of.
+The interveners do not seek to remove this residual element of subjectivity in relation to the defence of fair comment.
+They do, however, adopt Lord Nicholls removal from the malice that defeats fair comment the element of improper motive such as spite or ill will.
+Finally Mr Caldecott suggests that the description fair comment should be replaced by honest comment.
+Discussion
+The issue that has arisen in this case results from a change of emphasis in relation to the elements of the defence of fair comment.
+Those elements were, and still are: The statement in issue is comment and not fact; The matter in respect of which the comment is made is a matter of public interest; Where that matter consists of facts alleged to have occurred, the facts are true; The comment is fair; The statement is not made maliciously.
+The defence originated in respect of comments about work products such as: books, plays, theatrical performances, musical compositions and concerts.
+Comments in relation to such matters necessarily identified the work product to which they related, or they would have been meaningless.
+The matters commented on were matters of public interest.
+They had been placed by their authors or performers in the public domain.
+Where what was criticised was the artistic merit of the work product, the only issue that could arise was as to the fifth element.
+There was no question but that the statement made was comment.
+There was no doubt about the matter to which the comment related.
+No issue arose as to the truth of facts, for there were none.
+No issue was likely to arise as to whether the comment was fair, for beauty is in the eye of the beholder.
+The critic was doing no more than purporting to express his subjective reaction to what he had seen or heard.
+The only issue was malice.
+Was the critic fairly expressing his honest opinion, or was the opinion that he expressed dishonest, or motivated by spite or ill will?
+Where the criticism did not relate to the artistic merit of the work product, but the comments made amounted to an attack on the character of the author, then the fourth element might be in issue in as much as some cases identified a requirement that the inferences drawn by the comments made should be reasonable.
+Criticism of work products could, of course, cause considerable damage to the professional reputations of those responsible for them, and cause them financial loss.
+The right to make honest but derogatory expressions of opinion on such matters was and is an important safeguard for freedom of expression.
+A number of developments complicated the defence of fair comment.
+It was extended to cover the conduct of individuals, where this was of public interest.
+It thus became possible to make a pejorative or derogatory comment about a person which was inferentially based on his conduct, without expressly identifying the facts upon which the comment was based.
+Sometimes the conduct was notorious and thus in the public domain.
+Then the comment might inferentially identify the conduct on which it was based and no difficulty would arise in relation to evaluating the various elements of the defence.
+But it might not be possible to identify by inference the conduct in relation to which the comment was made.
+Indeed that conduct might not even be in the public domain.
+It might be known only to the person making the comment.
+The common law had to decide how to deal with a general or bare comment, which inferred discreditable conduct of some kind without giving any particulars of the conduct.
+The damage that such a comment can do is relatively limited.
+Actions speak louder than words.
+Most people judge their fellow men by the way that they behave, not on the basis of general opinions expressed by others.
+The common law might have held that bare comments were not actionable at all.
+Or it might have held that a defence of fair comment would lie in respect of a bare comment provided that the defendant could identify the factual basis for his comment by giving evidence of what it was that he had had in mind.
+It did not, however, take either course.
+It held that the defence of fair comment could not be invoked in relation to a comment that inferred that the claimant had conducted himself in some unspecified discreditable way.
+The ground for so holding was sometimes not happily expressed.
+In the 11th edition of Winfield and Jolowicz on Tort, (1979) p 304 the editors stated: To say that A is a disgrace to human nature is an allegation of fact, but if the words were A murdered his father and is therefore a disgrace to human nature, the latter words are plainly a comment on the former.
+Lord Walker commented in argument on the fallacy of the first part of this proposition.
+See also my comments at para 5 above.
+The courts have always held that the only defence to a bare comment which infers the existence of discreditable conduct but does not identify it is justification see for example Bingham LJ in Brent Walker [1991] 2 QB 33, 44H.
+In justifying a bare defamatory comment the defendant is entitled, in accordance with the principles that govern that defence, to plead any fact, whether or not it was known to him when he made the comment in order to show that the comment was justified.
+So far as the defence of fair comment is concerned, apart from some puzzling dicta by Bankes and Scrutton LJJ in Aga Khan v Times Publishing Co. [1924] 1 KB 675 at pp 679 680 and 681 682, until the decision in Kemsley v Foot [1951] 2 KB 34; [1952] AC 345 no authority to which this court has been referred put in doubt the fact that the defence of fair comment required the facts upon which the comment was made to be stated or identified in or from the comment itself.
+Kemsley v Foot is a difficult case.
+It was, of course, an absurd libel action.
+It was not about vindicating the reputation of Viscount Kemsley but about amour propre.
+Both the nature of the defamatory comment and the subject matter to which it related had to be inferred from the three words Lower than Kemsley.
+The issue was whether the defence of fair comment could be maintained when the comment did not specify any particular matters to which it related.
+The House of Lords followed the Court of Appeal in treating the relevant criticism as being an attack on a work product, the Kemsley Press, and to that extent an attack on the person responsible for it, Viscount Kemsley.
+In these circumstances it was held sufficient that the comment, by inference, identified generically the Kemsley Press as the subject matter of the criticism there was no need for the comment to identify specific extracts from Kemsley publications as the subject of the criticism.
+The passage from Lord Porters judgment that I have quoted at para 52 is not easy to analyse.
+As he observed, this dealt with a question that did not arise directly on the appeal.
+He was not dealing with whether the facts upon which the comment was based had to be identified by the comment, but on whether all the facts relied upon to support the comment had to be true.
+This was a strange question to ask in the context of criticism of journalistic material and the language used was appropriate to an issue of justification, rather than pertinence (see my explanation of this term at para 6 above).
+The distinction that Lord Porter drew between the subject matter of the comment and facts alleged to justify that comment is particularly elusive.
+The particulars pleaded in that case were expressly stated to be the specific facts upon which the said words are a fair comment: [1951] 2 KB 34, 40 41.
+They were the most significant parts of the subject matter of the comment.
+My reading of the position is as follows.
+The House had held that the defence of fair comment could be raised where the comment identified the subject matter of the comment generically as a class of material that was in the public domain.
+There was no need for the commentator to spell out the specific parts of that material that had given rise to the comment.
+The defendant none the less had quite naturally given particulars of these in order to support the comment.
+Lord Porter held that it was not necessary to prove that each of these facts was accurate provided that at least one was accurate and supported the comment.
+This passage does not support the proposition that a defendant can rely in support of the defence of fair comment on a fact that does not form part of the subject matter identified generically by the comment.
+Even less does it support the proposition that a defendant can base a defence of fair comment on a fact that was not instrumental in his forming the opinion that he expressed by his comment.
+The last sentence of the passage that I have cited makes this plain.
+I can summarise the position as follows.
+Where, expressly or by implication, general criticism is made of a play, a book, an organ of the press or a notorious course of conduct in the public domain, the defendant is likely to wish in his defence to identify particular aspects of the matter in question by way of explanation of precisely what it was that led him to make his comment.
+These particular aspects will be relevant to establishing the pertinence of his comment and to rebutting any question of malice, should this be in issue.
+Lord Porters speech indicates that the comment does not have to refer to these particular aspects specifically and that it is not necessary that all that are pleaded should be accurate, provided that the comment is supported by at least one that is.
+Can Lord Nicholls fourth proposition in Cheng [2001] EMLR 777, para 19 be reconciled with these propositions? The passage in Odgers, 6th ed (1929), p 166 that was cited with approval by Lord Porter (see para 51 above) suggested that where conduct is identified by a clear reference the defendant thereby enables his readers to judge for themselves how far his opinion is well founded.
+As Lord Ackner pointed out, however, in Telnikoff [1992] 2 AC 343, 361, it is fallacious to suggest that readers will be able to form their own view of the validity of the criticism of a matter merely because in the past it was placed in the public domain.
+Readers of The Tribune who did not read the Kemsley Press could no doubt have gained access to a representative sample of this, but this will not be possible where the criticism is of an ephemeral matter such as a concert, or the single performance of a play, or a football match, all of which can give rise to general criticism that is protected by the defence of fair comment.
+For these reasons I do not consider that Lord Nicholls fourth proposition in Cheng can be reconciled with Kemsley v Foot.
+Lord Nicholls proposition echoed what Fletcher Moulton LJ had said in Hunt v Star Newspaper Co Ltd [1908] 2 KB 309 see para 39 above, but each observation was obiter.
+There is no case in which a defence of fair comment has failed on the ground that the comment did not identify the subject matter on which it was based with sufficient particularity to enable the reader to form his own view as to its validity.
+For these reasons, where adverse comment is made generally or generically on matters that are in the public domain I do not consider that it is a prerequisite of the defence of fair comment that the readers should be in a position to evaluate the comment for themselves.
+What of a case where the subject matter of the comment is not within the public domain, but is known only to the commentator or to a small circle of which he is one? Today the internet has made it possible for the man in the street to make public comment about others in a manner that did not exist when the principles of the law of fair comment were developed, and millions take advantage of that opportunity.
+Where the comments that they make are derogatory it will often be impossible for other readers to evaluate them without detailed information about the facts that have given rise to the comments.
+Frequently these will not be set out.
+If Lord Nicholls fourth proposition is to apply the defence of fair comment will be robbed of much of its efficacy.
+The cases have none the less emphasised repeatedly the requirement that the comment should identify the subject matter on which it is based, as is demonstrated by the passages in the judgments that I have emphasised by placing them in italics.
+If the requirement that the comment should identify the subject matter on which it is based is not imposed in order to enable the reader of the comment to form his own view of its validity, what is the object of the requirement? Bingham LJ in Brent Walker [1991] 2 QB 33, 44 said that the true facts must be stated or sufficiently indicated sufficiently for what?
+There are a number of reasons why the subject matter of the comment must be identified by the comment, at least in general terms.
+The underlying justification for the creation of the fair comment exception was the desirability that a person should be entitled to express his view freely about a matter of public interest.
+That remains a justification for the defence, albeit that the concept of public interest has been greatly widened.
+If the subject matter of the comment is not apparent from the comment this justification for the defence will be lacking.
+The defamatory comment will be wholly unfocussed.
+It is a requirement of the defence that it should be based on facts that are true.
+This requirement is better enforced if the comment has to identify, at least in general terms, the matters on which it is based.
+The same is true of the requirement that the defendants comment should be honestly founded on facts that are true.
+More fundamentally, even if it is not practicable to require that those reading criticism should be able to evaluate the criticism, it may be thought desirable that the commentator should be required to identify at least the general nature of the facts that have led him to make the criticism.
+If he states that a barrister is a disgrace to his profession he should make it clear whether this is because he does not deal honestly with the court, or does not read his papers thoroughly, or refuses to accept legally aided work, or is constantly late for court, or wears dirty collars and bands.
+Such considerations are, I believe, what Mr Caldecott had in mind when submitting that a defendants comments must have identified the subject matter of his criticism if he is to be able to advance a defence of fair comment.
+If so, it is a submission that I would endorse.
+I do not consider that Lord Nicholls was correct to require that the comment must identify the matters on which it is based with sufficient particularity to enable the reader to judge for himself whether it was well founded.
+The comment must, however, identify at least in general terms what it is that has led the commentator to make the comment, so that the reader can understand what the comment is about and the commentator can, if challenged, explain by giving particulars of the subject matter of his comment why he expressed the views that he did.
+A fair balance must be struck between allowing a critic the freedom to express himself as he will and requiring him to identify to his readers why it is that he is making the criticism.
+Conclusion
+For the reasons that I have given I would endorse Lord Nicholls summary of the elements of fair comment that I have set out at para 3 above, save that I would re write the fourth proposition: Next the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based.
+Change of emphasis and the case for reform
+Should this court apply the law as it now is, or should it adopt the invitation to develop or reform the law?
+The right of fair comment has been said to be one of the fundamental rights of free speech and writing per Scott LJ in Lyon v The Daily Telegraph Ltd [1943] 1 KB 746, 753.
+Lord Denning MR echoed that comment in Slim v Daily Telegraph Ltd [1968] 2 QB 157, adding that the right must not be whittled down by legal refinements.
+He described the right of fair comment in terms which emphasised the importance of the subjective appreciation of the writer.
+The concept was a simple one.
+The writer had to be expressing his honest opinion on a matter of public interest.
+He had to get his facts right.
+The area of inquiry was relatively limited.
+What were the facts on which the writer had made his comment? Were they matters of public interest? Were they accurate? The important thing is to determine whether or not the writer was actuated by malice.
+If he was an honest man expressing his genuine opinion on a subject of public interest, then no matter that his words conveyed derogatory imputations; no matter that his opinion was wrong or exaggerated or prejudiced; and no matter that it was badly expressed so that other people read all sorts of innuendos into it; nevertheless, he has a good defence of fair comment.
+His honesty is the cardinal test.
+He must honestly express his real view. (p 170)
+In recent cases the area of inquiry in relation to the defence of fair comment has been expanded.
+The scope of public interest has been greatly widened.
+If Cheng [2001] EMLR 777 is accepted as correctly setting out the test of malice, the scope of malice has been significantly narrowed.
+The fact that the defendant may have been motivated by spite or ill will is no longer material.
+The only issue is whether he believed that his comment was justified.
+In practice this issue is seldom likely to be explored, for the burden is on the claimant and how can he set about proving that the defendant did not believe what he said? The subjective nature of the defence of fair comment has diminished.
+The issue is no longer the subjective one did the defendant honestly believe that the facts on which he commented justified his comment? Instead the focus has been on the objective question: could an obstinate and prejudiced person have honestly based the comment made by the defendant on the facts on which the defendant commented? Mr Price and Mr Caldecott suggest that it should be expanded to embrace facts which were not known to the defendant, or (according to Mr Price) even in existence when he made his comment.
+The horrific pleadings and interlocutory warfare in Lowe [2007] QB 580, referred to in para 70 above exemplify the confusion that can now develop where a defence of justification is run in harness with a defence of fair comment.
+Where, as is usually the case, an action is brought in relation to a statement that mixes fact and comment I question how often any value is added to the defendants case by the addition of a plea of fair comment.
+The reforms suggested by Mr Price and Mr Caldecott would radically alter the nature of the defence of fair comment.
+No longer would it be a personal defence based on the defendants honest opinion on facts identified by him.
+The defendants state of mind would be wholly irrelevant under Mr Prices scheme and almost wholly irrelevant under Mr Caldecotts.
+Instead fair comment would depend upon an objective test, applied in a similar way to the defence of justification.
+Did facts exist that might have led a prejudiced and obstinate commentator to express the derogatory opinion expressed by the defendant?
+I am not persuaded that reforms of this nature would do anything to simplify defamation actions.
+The scope of the defence of fair comment would be widened, but at the price of continued complexity of process.
+In any event the proposed reforms go beyond changes that could properly be made by this court in the orderly development of the common law.
+There is a case for reform.
+Would it not be more simple and satisfactory if, in place of the objective test, the onus was on the defendant to show that he subjectively believed that his comment was justified by the facts on which he based it? The Faulks Committee Report on Defamation 1975 (Cmnd 5909) recommended the retention of the objective test, but the New Zealand Defamation Act 1992 has placed the burden on the defendant of proving honest opinion (section 10).
+There may be a case for widening the scope of the defence of fair comment by removing the requirement that it must be on a matter of public interest.
+Careful consideration needs to be given to Mr Caldecotts first proposition that the defence of fair comment should extend to inferences of fact.
+Jurisprudence both in this jurisdiction and at Strasbourg see Nilsen and Johnsen v Norway (1999) 30 EHRR 878, para 50 has held that allegations of motive, which is inherently incapable of verification, can constitute comment.
+Some decisions have gone further and treated allegations of verifiable fact as comment, see for instance the Privy Council in Jeyaretnam v Goh Chok Tong [1989] 1 WLR 1109.
+It is questionable whether this is satisfactory.
+Prejudiced commentators can draw honest inferences of fact, such as that a man charged with fraud is guilty of fraud.
+Should the defence of fair comment apply to such inferences? Allegations of fact can be far more damaging, even if plainly based on inference, than comments on true facts.
+Eady J has twice held that the defence of fair comment cannot apply where the defamatory sting is a matter of verifiable fact Hamilton v Clifford [2004] EWHC 1542 (QB) and British Chiropractic Association v Singh [2009] EWHC 1101 (subsequently reversed by the Court of Appeal).
+The repetition rule raises problems in relation to fair comment.
+It has been stated that fair comment can be based on a statement protected by Reynolds privilege see Eady J in Galloway v Telegraph Group Ltd [2005] EMLR 115, paras 174 176, but the commentator may well not be in a position to assess whether the statement in question is so protected.
+Finally, and fundamentally, has not the time come to recognise that defamation is no longer a field in which trial by jury is desirable? The issues are often complex and jury trial simply invites expensive interlocutory battles, such as the one before this court, which attempt to pre empt issues from going before the jury.
+These are difficult questions.
+Some may have to be resolved judicially, but the whole area merits consideration by the Law Commission, or an expert committee.
+There is only one reform that I would seek to make by this judgment it is one that has already received judicial approval see Lord Nicholls in Reynolds [2001] 2 AC 127, 165.
+The defence of fair comment should be renamed honest comment.
+The application of the law to the facts of this case
+The defendants primary defence is justification of their comments that the claimants were unprofessional, that they demonstrated a contemptuous and cavalier approach to their contractual obligations and that they would not necessarily adhere to the terms of their booking arrangements see para 20 above.
+They rely in support of this defence on the Landmarc breach, which they contend was attributable to a subsequent better offer, on the Bibis breach, on the first claimants email of 27 March 2007 and on the claimants approach to the Coombes booking.
+If this defence fails the defendants seek to show that their comments were fair comment, albeit unjustified.
+Had Lord Nicholls fourth proposition in Cheng [2001] EMLR 777, para 19 been valid it would have been necessary to consider whether the defendants posting contained sufficient detail to enable the readers to form their own views of whether the defendants comments were justified.
+For the reasons that I have explained I do not consider that this is something that the defendants have to establish.
+The defendants seek to rely upon three matters to support their plea of fair comment: i) The Landmarc breach of contract; ii) The Bibis breach of contract; iii) The first claimants email of 27 March 2007.
+Mr Price submitted that the Landmarc breach of contract was referred to in the defendants posting inasmuch as this stated that the claimants have not been able to abide by the terms of their contract and following a breach of contract.
+Pill LJ [2010] ICR 642, para 46 held that these statements could not be read as referring to the Landmarc breach in 2005.
+I agree.
+They referred to the Bibis breach and not to the Landmarc breach.
+The Landmarc breach was not referred to in the defendants posting, nor did it form part of a generic allegation of misconduct.
+Alternatively Mr Price sought to persuade the House to extend the common law so as to permit a defendant to rely in support of the defence of fair comment on matters that were not referred to, even in general terms, by the comment.
+I have declined that invitation.
+It follows that the defendants cannot rely upon the Landmarc breach to support their defence of fair comment.
+This leaves them with the Bibis breach and the first claimants email as potential support for their comment.
+Pill LJ held, at para 38, that the defendants could not rely on the first claimants email because this had been misquoted by the defendants in their posting.
+I do not agree.
+That email had, arguably, evidenced a contemptuous and cavalier approach to the claimants contractual obligations to the defendants.
+The email as quoted, arguably, evidenced a contemptuous and cavalier approach to contracts in general.
+So far as concerns the basis of the defendants comments about the claimants attitude to their contractual obligations, a jury might take the view that there was no significant difference between the email as sent and the email as quoted.
+The jury should be directed that if they thought that the email as quoted differed significantly from the email as sent they should disregard it but that otherwise they can have regard to it when considering the defence of fair comment.
+Pill LJ held, at para 42, that the defendants could not rely on the Bibis breach.
+He said that there was no reference to it in the words complained of.
+That is not correct.
+The statement that the claimants had not been able to abide by the terms of their contract and the reference to following a breach of contract were references to the Bibis breach.
+As I understand it, however, the reason why Pill LJ held that this could not be relied on was that the posting did not identify the contract that had been broken, still less the term allegedly breached, so that the reader was not in a position to evaluate whether the breach justified the comment.
+For the reasons that I have given I do not consider that this was necessary.
+The posting sufficiently identified the breach as part of the subject matter of the comment, albeit that the breach was not particularised.
+It follows that the defendants are entitled to rely upon the Bibis breach to support their defence of fair comment.
+For these reasons I have reached the conclusion that this appeal should be allowed and the defence of fair comment reinstated.
+LORD RODGER
+I have had the advantage of reading the judgments prepared by Lord Phillips and Lord Walker in draft.
+I agree with them and, for the reasons they give, I too would allow the appeal.
+LORD WALKER
+I agree with the judgment of Lord Phillips.
+I add some brief comments of my own.
+Lord Phillips shows how the defence of fair comment (now to be called honest comment) originated in a narrow form in a society very different from todays.
+It was a society in which writers, artists and musicians were supposed to place their works, like wares displayed at market, before a relatively small educated and socially elevated class, and it was in the context of published criticism of their works that the defence developed.
+It has expanded enormously as the law has extended its view of what is of public interest and the nature of the comment that the defence may cover.
+Kemsley v Foot [1952] AC 345 was an important milestone.
+In some ways it was, as Lord Phillips observes (para 91) an absurd libel action, but sometimes it is the atypical case that brings about developments in the common law.
+In the half century or more since Kemsley v Foot society and its concerns have continued to change.
+The creation of a common base of information shared by those who watch television and use the internet has had an effect which can hardly be overstated.
+Millions now talk, and thousands comment in electronically transmitted words, about recent events of which they have learned from television or the internet.
+Many of the events and the comments on them are no doubt trivial and ephemeral, but from time to time (as the present appeal shows) libel law has to engage with them.
+The test for identifying the factual basis of honest comment must be flexible enough to allow for this type of case, in which a passing reference to the previous nights celebrity show would be regarded by most of the public, and may sometimes have to be regarded by the law, as a sufficient factual basis.
+As Lord Phillips points out in para 76, the Grand Chamber at Strasbourg has recently approved the general proposition that even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it.
+The defence of honest comment requires the commentator to identify, at least in general terms, the nature of that factual basis.
+LORD BROWN
+I have read the judgment of Lord Phillips and for the reasons he gives I too would allow this appeal.
+I agree also with Lord Walkers brief comments.
+SIR JOHN DYSON SCJ
+I would allow this appeal for the reasons given by Lord Phillips.
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+Mesothelioma is a hideous disease that is inevitably fatal.
+In most cases, indeed possibly in all cases, it is caused by the inhalation of asbestos fibres.
+Unusual features of the disease led the House of Lords to create a special rule governing the attribution of causation to those responsible for exposing victims to asbestos dust.
+This was advanced for the first time in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32 and developed in Barker v Corus UK Ltd [2006] UKHL 20; [2006] 2 AC 572.
+Parliament then intervened by section 3 of the Compensation Act 2006 further to vary this rule.
+The rule in its current form can be stated as follows: when a victim contracts mesothelioma each person who has, in breach of duty, been responsible for exposing the victim to a significant quantity of asbestos dust and thus creating a material increase in risk of the victim contracting the disease will be held to be jointly and severally liable for causing the disease.
+These two appeals involve cases where the defendant was the sole known source of occupational exposure to asbestos dust.
+In each case the extent of the exposure found was very small.
+In each case, the Court of Appeal, applying the special rule, held the defendant liable for causing the disease.
+In Willmore v Knowsley Metropolitan Borough Council the Council contends that the trial judge erred in finding that it was responsible for exposing Mrs Willmore to sufficient asbestos dust to cause a material increase in risk.
+The appeal involves an attack on findings of fact by the judge, which were upheld by the Court of Appeal, but no issue of principle, albeit that it nicely illustrates the effect of the special rule of causation.
+I agree that this appeal must be dismissed for the reasons given by Lord Rodger and I have nothing to add to these.
+In Sienkiewicz v Greif (UK) Ltd (Greif) the respondent is the daughter of Mrs Enid Costello and sues as administratrix of her estate.
+The appellant, Greif, raises two separate, albeit interrelated, grounds of appeal.
+The exposure for which the judge found Greif to have been responsible only increased the total amount of exposure which Mrs Costello would have experienced as a result of environmental exposure to asbestos, that is exposure to asbestos in the atmosphere, by 18%.
+Greif submits that in these circumstances the respondent failed to prove on balance of probability that Greif caused Mrs Costellos mesothelioma; to do this she would have had to prove that the exposure for which Greif was responsible had more than doubled the environmental exposure.
+This submission raises the following important issue of principle.
+Does the special rule of causation that applies in cases of mesothelioma leave any room for applying a test of balance of probability to causation? It also raises a general issue as to the applicability as proof of causation in personal injury cases of a test usually applied to epidemiological evidence that I shall call the doubles the risk test.
+Shortly stated this test attributes causative effect to any factor that more than doubled a risk that would otherwise have been present of the injury that occurred.
+Greifs alternative submission is that occupational exposure to asbestos dust will only constitute a material increase in risk for the purpose of the special rule of causation if it more than doubles the environmental exposure to such dust to which the victim was subject.
+It did not do so in the case of Mrs Costello.
+Methods of proving causation
+Most claims for death or personal injury result from accidents.
+In such cases the cause of death or personal injury will seldom be in issue.
+A body of knowledge which I shall call medical science will enable a witness, expert in that science, to describe the precise mechanism by which the accident brought about the death or injury.
+I shall describe this as the biological cause of death or injury.
+It is sometimes referred to by the more general description of the cause in fact.
+In some cases, however, medical science will not yet have identified the precise mechanism by which an injury gives rise to a particular physical consequence.
+In such cases it may be possible to deduce that there was a causative link between the two by evidence of what usually happens.
+Epidemiological evidence that a particular injury or disease usually follows a particular type of bodily insult may enable a court to conclude in a particular case, on balance of probability, that the former was caused by the latter.
+Post hoc ergo propter hoc.
+A finding of causation based on such evidence is sometimes described as the cause in law.
+Where the court is concerned with a speculative question what would have happened but for a particular intervention it is likely to need to have regard to what normally happens.
+A good example of such a situation is the task of estimating the loss of expectation of life of a person whose death has been caused by negligence or breach of duty.
+In such a situation the evidence upon which the court will reach its conclusion is likely to be provided, at least in part, by a statistician or an epidemiologist.
+Medical science will identify whether the deceased had any physical characteristic relevant to his life expectancy.
+Epidemiology will provide statistical evidence of life expectancy of the group or cohort to which the deceased belonged.
+With this material the court answers the hypothetical question of the length of the life that the victim would have enjoyed but for the breach of duty of the defendant.
+Epidemiology can also provide a court with assistance in deciding what actually happened, when the cause of a disease or injury is not clear.
+For one remarkable example of the use, and ultimate rejection, of epidemiological evidence see Loveday v Renton [1990] 1 MLR 1.
+Another remarkable case, to which I shall make further reference was XYZ v Schering Health Care Ltd [2002] EWHC 1420 (QB); 70 BMLR 88.
+When a scientific expert gives an opinion on causation, he is likely to do so in terms of certainty or uncertainty, rather than probability.
+Either medical science will enable him to postulate with confidence the chain of events that occurred, ie the biological cause, or it will not.
+In the latter case he is unlikely to be of much assistance to the judge who seeks to ascertain what occurred on a balance of probability.
+This reality was expressed by Lord Prosser in Dingley v The Chief Constable, Strathclyde Police 1998 SC 548, 603 with a clarity that merits quotation: In ordinary (non lawyers) language, to say that one regards something as probable is by no means to say that one regards it as established or proved.
+Yet in the civil courts, where we say that a pursuer must prove his case on a balance of probabilities, what is held to be probable is treated as proved.
+I do not suggest that any lawyer will be confused by this rather special meaning of the word proved.
+But speaking very generally, I think that the civil requirement of a pursuer that he satisfy the court that upon the evidence his case is probably sound would in ordinary language be regarded as very different from, and less stringent than, a requirement that his case be established or proved.
+More importantly in the context of such a case as the present, the fact that the two concepts are distinct in ordinary language, but the same in this legal context, seems to me to give rise to a risk of ambiguity or misunderstanding in the expressed opinions of expert witnesses.
+And this risk will be increased if the expert in question would normally, in the exercise of his profession, adopt an approach to such issues starkly different from that incumbent upon a court.
+Whether one uses the word scientific or not, no hypothesis or proposition would be seen as proved or established by anyone with any form of medical expertise merely upon the basis that he had come to regard it as probably sound. (Indeed, I think even the word probable would be reserved for situations where the likelihood is thought to be much more than marginal).
+And even if, in relation to any possible proposition or hypothesis, such an expert even troubled to notice that he had come to the point of regarding it as not merely possible but on balance probable, then I think he would regard that point as one from which he must set off on further inquiry, and by no means as being (as it is in the courts) a point of arrival.
+Mere marginal probability will not much interest him.
+But it must satisfy a court.
+The issue in Dingley was whether the development of multiple sclerosis had been caused by physical injury sustained in a motor accident.
+Medical science was not able to demonstrate the connection between the two, and reliance was placed on epidemiological evidence.
+Lord Prosser, at pp 604 605, had this to say about this method of proof: I am not much impressed by one argument advanced for the defender to the effect that the pursuers argument is essentially post hoc, ergo propter hoc, and therefore unsound.
+Plainly, one will more readily conclude that B is caused by A, or probably caused by A, if one can identify, or at least envisage, some kind of mechanism whereby B might be caused by A. Equally, if one simply cannot identify or envisage such a mechanism, the mere fact that on one occasion B happened after A (and perhaps very quickly after A) would not, in the absence of other indications, lead one easily to conclude that B was caused by A. But no one, certainly in this case, suggests that such a single coincidence is to be interpreted as involving a causal relationship.
+And once one moves from single coincidence to a number of occasions when B follows (perhaps quickly) upon A, dismissiveness of post hoc, ergo propter hoc reasoning seems to me to become less and less appropriate.
+Indeed, unless and until one can identify or envisage a connecting mechanism, countless conclusions as to causal relationship are reached precisely upon a form of post hoc, ergo propter hoc reasoning: if B is observed never to occur except shortly after A, the conclusion may be relatively easy but if B is observed to occur frequently after A, then even if each sometimes occurs without the other, the frequency with which B occurs after A may nonetheless well justify a more or less firm conclusion that A, in certain circumstances, causes B. I do not regard such conclusions as based on false (or indeed simple) logic.
+The approach is in my opinion inherent not only in conclusions drawn from ones general experience or anecdotal evidence.
+It is inherent also in much experimental research, and also, as it seems to me, in epidemiology.
+And while it may always seem somewhat insufficient, until one can find an identifiable possible mechanism, as a basis for claiming that the causal link is proved or established, in either ordinary or scientific terms, that feeling of insufficiency strikes me as much less appropriate if one stops short of such claims and contents oneself with saying that the causal relationship is marginally probable (or is proved or established only as required in civil litigation).
+Knowledge about mesothelioma is based in part on medical science and in part on statistical analysis or epidemiology.
+These appeals raise the question of whether, and if so to what extent, the court can satisfactorily base conclusions about causation on the latter, both in mesothelioma cases and more generally.
+Principles of causation in relation to disease
+Many diseases are caused by the invasion of the body by an outside agent.
+Some diseases are caused by a single agent.
+Thus malaria results from a single mosquito bite.
+The extent of the risk of getting malaria will depend upon the quantity of malarial mosquitoes to which the individual is exposed, but this factor will not affect the manner in which the disease is contracted nor the severity of the disease once it is contracted.
+The disease has a single, uniform, trigger and is indivisible.
+The contraction of other diseases can be dose related.
+Ingestion of the agent that causes the disease operates cumulatively so that, after a threshold is passed, it causes the onset of the disease.
+Lung cancer caused by smoking is an example of such a disease, where the disease itself is indivisible.
+The severity of the disease, once it has been initiated, is not related to the degree of exposure to cigarette smoke.
+More commonly, diseases where the contraction is dose related are divisible.
+The agent ingested operates cumulatively first to cause the disease and then to progress the disease.
+Thus the severity of the disease is related to the quantity of the agent that is ingested.
+Asbestosis and silicosis are examples of such diseases, as are the conditions of vibration white finger and industrial deafness, although the insults to the body that cause these conditions are not noxious agents.
+For this reason it is important to distinguish between asbestosis and mesothelioma when considering principles of causation.
+Mesothelioma is an indivisible disease.
+As I shall explain there is uncertainty as to whether its contraction is related to the amount of asbestos fibres ingested.
+It is a basic principle of the law of tort that the claimant will only have a cause of action if he can prove, on balance of probabilities, that the defendants tortious conduct caused the damage in respect of which compensation is claimed.
+He must show that, but for the defendants tortious conduct he would not have suffered the damage.
+This broad test of balance of probabilities means that in some cases a defendant will be held liable for damage which he did not, in fact, cause.
+Equally there will be cases where the defendant escapes liability, notwithstanding that he has caused the damage, because the claimant is unable to discharge the burden of proving causation.
+There is an important exception to the but for test.
+Where disease is caused by the cumulative effect of the inhalation of dust, part of which is attributable to breach of duty on the part of the defendant and part of which involves no breach of duty, the defendant will be liable on the ground that his breach of duty has made a material contribution to the disease Bonnington Castings Ltd v Wardlaw [1956] AC 613.
+The disease in that case was pneumoconiosis.
+That disease is divisible.
+The severity of the disease depends upon the quantity of silica inhaled.
+The defendant did not, however, argue that, if held liable, this should only be to the extent that the dust for which it was responsible had contributed to the plaintiffs symptoms.
+It was held liable for 100% of the disease.
+There have, however, been a series of cases at first instance and in the Court of Appeal in which it has been recognised that where there has been a number of exposures of a claimant to bodily insults that have cumulatively caused a divisible disease, responsibility should be apportioned so that an individual defendant is liable for no more than his share of the disease.
+This apportionment may necessarily be a rough and ready exercise: see Mustill Js analysis in Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405 at pp 437 444 and the cases cited in McGregor on Damages, 18th ed (2010) at 8 010 to 8 016
+What is known about mesothelioma
+The special rule of causation applied to mesothelioma was devised because of ignorance about the biological cause of the disease.
+It was accepted in Fairchild and Barker that this rendered it impossible for a claimant to prove causation according to the conventional but for test and this caused injustice to claimants.
+It is not possible properly to consider the issues raised by this appeal without reference to what is known about mesothelioma.
+This has been summarised in many cases, and much of my own summary in Bryce v Swan Hunter Group plc [1988] 1 All ER 659 of what was known 25 years ago remains true today.
+The cases under appeal did not involve the introduction of detailed evidence of what is known today about mesothelioma, proceeding on the basis that findings in previous cases could be taken as read.
+There was, however, introduced in evidence a case control study by Peto and Rake, published in 2009 by the Health and Safety Executive, on Occupational, Domestic and Environmental Mesothelioma risks in Britain (the Peto Report), which is said to be the first representative study to quantify the relationship between mesothelioma risk and lifetime occupational and residential history in this country.
+In these circumstances I have turned to recent judicial authority in order to augment the information contained in Peto and Rakes study.
+It has not been necessary to look further than the collation of data about mesothelioma set out by Rix LJ in his judgment in the series of appeals collectively described as Employers Liability Insurance Trigger Litigation [2010] EWCA Civ 1096.
+I shall set out in an annex to this judgment details of the current knowledge about mesothelioma that I have obtained from these sources.
+I can summarise the effect of the material in the Annex as follows: i) Mesothelioma is always, or almost always, caused by the inhalation of asbestos fibres. ii) A significant proportion of those who contract mesothelioma have no record of occupational exposure to asbestos.
+The likelihood is that in their case the disease results from inhalation of asbestos dust that is in the environment.
+There is, however, a possibility that some cases of mesothelioma are idiopathic, ie attributable to an unknown cause other than asbestos.
+Mr Stuart Smith QC for Greif submitted that the Peto Report indicates that this is more than a possibility, but I do not so read it.
+I do not, however, think that it matters whether some cases of the disease are idiopathic. iii) The more fibres that are inhaled, the greater the risk of contracting mesothelioma. iv) There is usually a very long period between the exposure to asbestos and the development of the first malignant cell.
+Typically this can be at least 30 years. v) There will be a lengthy period between the development of the first malignant cell and the point at which the disease can be diagnosed.
+At the time of Fairchild this was thought to be 10 years, but is now thought to be at least 5 years.
+During this period, further exposure to asbestos fibres will have no causative effect. vi) The mechanism by which asbestos fibres cause mesothelioma is still not fully understood.
+It is believed that a cell has to go through 6 or 7 genetic mutations before it becomes malignant, and asbestos fibres may have causative effect on each of these.
+It is also possible that asbestos fibres have a causative effect by inhibiting the activity of natural killer cells that would otherwise destroy a mutating cell before it reaches the stage of becoming malignant. vii)
+These propositions are based in part on medical science and in part on epidemiological studies.
+They represent the current understanding of a disease about which much remains to be discovered.
+The development of the special rule of causation that applies to mesothelioma
+The starting point in tracing the development of the special rule of causation is the decision of the House of Lords in McGhee v National Coal Board [1973] 1 WLR 1, an appeal from the First Division of the Court of Session.
+The pursuer claimed against his employers for dermatitis which he alleged had been caused by breaches of their common law duties.
+He was employed in a brick kiln, where he got covered in brick dust.
+This, so it was held, involved no breach of duty on the part of the defenders.
+They were, however, held in breach of duty for failure to provide a shower which would have enabled him to wash off the dust as soon as he finished work.
+He had to cycle home covered in dust and sweat.
+Two medical experts were called.
+The effect of their evidence was that the brick dust caused the dermatitis but that the precise mechanism whereby it did so was not known.
+It was agreed, however, that the risk of contracting the disease would have been reduced had the pursuer been able to wash off the dust before he cycled home.
+The cycle ride home in his unwashed state increased his risk of getting dermatitis.
+Lord Reid at p 4 summarised this evidence as follows: The medical evidence is to the effect that the fact that the man had to cycle home caked with grime and sweat added materially to the risk that this disease might develop.
+It does not and could not explain just why that is so.
+But experience shows that it is so.
+The nature of the evidence of that experience is not apparent.
+It does not appear to have been based on epidemiological research.
+Neither witness was able to quantify the extent to which failure to wash increased the risk, and one said that it was not possible to do so.
+If epidemiological data had existed it might have been possible to make a quantitative assessment based upon it of the extent to which delay in washing off brick dust increased the risk of dermatitis.
+On the very limited evidence available it was possible that the dermatitis had already been triggered by the time that the pursuer stopped work.
+It is equally possible that the additional exposure while he cycled home caked in dust had a critical incremental effect in triggering the disease.
+The defenders failure to provide showers increased the hazard posed to their workforce by brick dust and it was impossible on the evidence to determine whether this increase in hazard was or was not the critical factor in causing the pursuers dermatitis.
+Thus the facts of McGhee were not on all fours with those of Bonnington.
+In Bonnington it was possible to say that the inhalation of the silica attributable to breach of duty had contributed to causing the plaintiffs pneumoconiosis.
+In McGhee it was not possible to say whether or not the lack of a shower had in fact contributed to the contraction of the dermatitis.
+I have not found it possible to identify in McGhee reasoning that is common to all members of the House.
+The analysis of the decision that is now generally accepted is that the majority of their Lordships adapted the approach in Bonnington to the facts of McGhee by equating contribution to the risk of contracting dermatitis with contribution to the disease itself.
+They did so in circumstances where it was impossible to say whether, on balance of probability, the absence of shower facilities had been critical.
+What four of their Lordships did not consider was what the position would have been if there had been epidemiological evidence that gave a negative answer to that question.
+Lord Salmon did, however, expressly confront this question at p 12.
+After observing that the expert evidence did not enable one to place a percentage figure on the extent to which the lack of shower facilities had increased the risk of contracting dermatitis, he added: It is known that some factors materially increase the risk and others materially decrease it.
+Some no doubt are peripheral.
+Suppose, however, it were otherwise and it could be proved that men engaged in a particular industrial process would be exposed to a 52 per cent risk of contracting dermatitis even when proper washing facilities were provided.
+Suppose it could also be proved that that risk would be increased to, say, 90 per cent when such facilities were not provided.
+It would follow that if the decision appealed from is right, an employer who negligently failed to provide the proper facilities would escape from any liability to an employee who contracted dermatitis notwithstanding that the employers had increased the risk from 52 per cent to 90 per cent.
+The negligence would not be a cause of the dermatitis because even with proper washing facilities, ie without the negligence, it would still have been more likely than not that the employee would have contracted the disease the risk of injury then being 52 per cent.
+If, however, you substitute 48 per cent for 52 per cent the employer could not escape liability, not even if he had increased the risk to, say, only 60 per cent.
+Clearly such results would not make sense; nor would they, in my view, accord with the common law.
+In the example given by Lord Salmon the lack of shower facilities did not quite double the risk of contracting dermatitis.
+Thus, if one applies the doubles the risk test, the lack of shower facilities could not be shown to be the cause of any individual workmans dermatitis.
+I can understand why Lord Salmon considered that to base a finding of causation on such evidence would be capricious, but not why he considered that to do so would be contrary to common law.
+The balance of probabilities test is one that is inherently capable of producing capricious results.
+Nor do I understand his cryptic comment: I think that the approach by the courts below confuses the balance of probability test with the nature of causation.
+The doubles the risk test is one that, as I shall show in due course, has been adopted in subsequent cases as a valid method of deciding causation on balance of probabilities, and one which Mr Stuart Smith has sought to apply on these appeals.
+In Hotson v East Berkshire Area Health Authority [1987] AC 750 causation again caused a problem.
+The plaintiff, aged 13, had fallen out of a tree and sustained injury which reduced the flow of blood to cartilage in his hip joint.
+In breach of duty the defendants failed to diagnose this for five days.
+He suffered permanent disability of the hip joint.
+The issue was whether the injury itself was so severe that the subsequent disability of the hip joint was inevitable or whether, but for the five day delay, it would have been possible to prevent that disability.
+The medical evidence was that there was a 75% likelihood that the former was the case, but a 25% possibility that the delay in treatment was critical.
+At first instance [1985] 1 WLR 1036 Simon Brown J held that the defendants breach of duty had robbed the plaintiff of a 25% chance of avoiding the disability.
+The House of Lords held that this analysis was erroneous.
+The plaintiff was not robbed of a chance of avoiding the disability.
+The die was cast as soon as he had sustained his injury.
+Either the disability was inevitable or it could, with due skill and care, have been avoided.
+On balance of probability, estimated at 75/25, the former was the position, so the plaintiff had failed to prove causation.
+The particular interest of Hotson in the present context is the consideration given by Lord Mackay of Clashfern to McGhee, a case in which he had appeared as leading counsel for the employers.
+Like Lord Salmon, he took an epidemiological example.
+He said, at p 786: In McGhee v National Coal Board [1973] 1 WLR 1 this House held that where it was proved that the failure to provide washing facilities for the pursuer at the end of his shift had materially increased the risk that he would contract dermatitis it was proper to hold that the failure to provide such facilities was a cause to a material extent of his contracting dermatitis and thus entitled him to damages from his employers for their negligent failure measured by his loss resulting from dermatitis.
+Material increase of the risk of contraction of dermatitis is equivalent to material decrease in the chance of escaping dermatitis.
+Although no precise figures could be given in that case for the purpose of illustration and comparison with this case one might, for example, say that it was established that of 100 people working under the same conditions as the pursuer and without facilities for washing at the end of their shift 70 contracted dermatitis: of 100 people working in the same conditions as the pursuer when washing facilities were provided for them at the end of the shift 30 contracted dermatitis.
+Assuming nothing more were known about the matter than that, the decision of this House may be taken as holding that in the circumstances of that case it was reasonable to infer that there was a relationship between contraction of dermatitis in these conditions and the absence of washing facilities and therefore it was reasonable to hold that absence of washing facilities was likely to have made a material contribution to the causation of the dermatitis.
+In contrast to Lord Salmons figures, Lord Mackays figures demonstrate that, statistically, the lack of washing facilities more than doubled the risk of contracting dermatitis.
+Had evidence supporting such figures been given, it would have enabled the House, by application of the doubles the risk test, to conclude that the lack of shower facilities had, on balance of probabilities, caused Mr McGhee to contract dermatitis.
+I do not at this stage comment on whether or not it would have been appropriate for the House to apply that test.
+Lord Mackay went on to comment: Although neither party in the present appeal placed particular reliance on the decision in McGhee since it was recognised that McGhee is far removed on its facts from the circumstances of the present appeal your Lordships were also informed that cases are likely soon to come before the House in which the decision in McGhee will be subjected to close analysis.
+Obviously in approaching the matter on the basis adopted in McGhee much will depend on what is know of the reasons for the differences in the figures which I have used to illustrate the position.
+In these circumstances I think it unwise to do more than say that unless and until this House departs from the decision in McGhee your Lordships cannot affirm the proposition that in no circumstances can evidence of loss of a chance resulting from the breach of a duty of care found a successful claim of damages, although there was no suggestion that the House regarded such a chance as an asset in any sense.
+Once again I find this comment cryptic.
+Lord Mackay seems to be treating epidemiological evidence as evidence of loss of a chance, but it is not clear whether he is suggesting that such evidence might lead to a partial recovery rather than a full recovery in a case such as McGhee.
+The next step in the story is Wilsher v Essex Area Health Authority [1988] AC 1074.
+A baby boy, born three months prematurely, developed a condition of the retina which rendered him blind.
+There were five possible causes of the condition.
+One was the negligent administration of an excessive quantity of oxygen.
+The other four involved no fault on the part of the defendants medical staff.
+The expert witnesses were unable to say which caused the disease.
+The Court of Appeal, purporting to apply the principle in McGhee, held in favour of the infant.
+Mustill LJ expressed the principle, as he understood it, as follows [1987] QB 730, 771 772: If it is an established fact that conduct of a particular kind creates a risk that injury will be caused to another or increases an existing risk that injury will ensue; and if the two parties stand in such a relationship that the one party owes a duty not to conduct himself in that way; and if the first party does conduct himself in that way; and if the other party does suffer injury of the kind to which the risk related; then the first party is taken to have caused the injury by his breach of duty, even though the existence and extent of the contribution made by the breach cannot be ascertained.
+This analysis of McGhee was principled and coherent, but it was of wide general application and fundamentally rewrote the law of causation.
+It opened the floodgates and, I suspect, this may, in part, be the reason why it was subsequently rejected.
+Appeal at p 779, did not accept Mustill LJs analysis: In Wilsher, Sir Nicolas Browne Wilkinson V C, dissenting in the Court of To apply the principle in McGhee v National Coal Board [1973] 1 WLR 1 to the present case would constitute an extension of that principle.
+In the McGhee case there was no doubt that the pursuers dermatitis was physically caused by brick dust: the only question was whether the continued presence of such brick dust on the pursuers skin after the time when he should have been provided with a shower caused or materially contributed to the dermatitis which he contracted.
+There was only one possible agent which could have caused the dermatitis, viz, brick dust, and there was no doubt that the dermatitis from which he suffered was caused by that brick dust.
+In the present case the question is different.
+There are a number of different agents which could have caused the RLF.
+Excess oxygen was one of them.
+The defendants failed to take reasonable precautions to prevent one of the possible causative agents (eg excess oxygen) from causing RLF.
+But no one can tell in this case whether excess oxygen did or did not cause or contribute to the RLF suffered by the plaintiff.
+The plaintiffs RLF may have been caused by some completely different agent or agents, eg hypercarbia, intraventricular haemorrhage, apnoea or patent ductus arteriosus.
+In addition to oxygen, each of those conditions has been implicated as a possible cause of RLF.
+This baby suffered from each of those conditions at various times in the first two months of his life.
+There is no satisfactory evidence that excess oxygen is more likely than any of those other four candidates to have caused RLF in this baby.
+To my mind, the occurrence of RLF following a failure to take a necessary precaution to prevent excess oxygen causing RLF provides no evidence and raises no presumption that it was excess oxygen rather than one or more of the four other possible agents which caused or contributed to RLF in this case.
+The position, to my mind, is wholly different from that in the McGhee case [1973] 1 WLR 1, where there was only one candidate (brick dust) which could have caused the dermatitis, and the failure to take a precaution against brick dust causing dermatitis was followed by dermatitis caused by brick dust.
+In such a case, I can see the common sense, if not the logic, of holding that, in the absence of any other evidence, the failure to take the precaution caused or contributed to the dermatitis.
+To the extent that certain members of the House of Lords decided the question on inferences from evidence or presumptions, I do not consider that the present case falls within their reasoning.
+A failure to take preventative measures against one out of five possible causes is no evidence as to which of those five caused the injury.
+In the House of Lords, Lord Bridge of Harwich, reversing, with the agreement of the other members of the House, the decision of the Court of Appeal, approved the Vice Chancellors analysis.
+He went on to hold at p 1090 that McGhee laid down no new principle of law whatever.
+On the contrary, it affirmed the principle that the onus of proving causation lies on the pursuer or plaintiff.
+Adopting a robust and pragmatic approach to the undisputed primary facts of the case, the majority concluded that it was a legitimate inference of fact that the defenders negligence had materially contributed to the pursuers injury.
+The decision, in my opinion, is of no greater significance than that and to attempt to extract from it some esoteric principle which in some way modifies, as a matter of law, the nature of the burden of proof of causation which a plaintiff or pursuer must discharge once he has established a relevant breach of duty is a fruitless one.
+This analysis of McGhee has fared no better than that of Mustill LJ, cited at para 31.
+Bryce v Swan Hunter Group plc [1988] 1 All ER 659 was heard after the decision of the Court of Appeal and before the decision of the House of Lords in Wilsher.
+It was a claim in respect of mesothelioma against three defendants who, as successive employers, had tortiously exposed the plaintiff to asbestos dust.
+He had had other exposure to this less than 10 years before the onset of the disease and those responsible for this had not been joined as defendants.
+McGhee, as explained by Mustill LJ in Wilsher, was applied, resulting in a finding that each of the defendants was liable.
+I understand that after this decision insurers of employers who had consecutively subjected workmen to asbestos dust tended to accept joint and several liability for mesothelioma and to agree apportionment.
+At all events, this Court was not referred to any decision where such an approach was challenged until Fairchild.
+Fairchild involved three separate mesothelioma claims, which had been heard together by the Court of Appeal [2002] 1 WLR 1052.
+In each case the victim had been employed by a series of employers, each of which had wrongly exposed him to asbestos dust.
+No attempt had been made to prove, by epidemiology or otherwise, that on balance of probabilities, any particular employer had caused the victim to contract the disease.
+The Court of Appeal ruled against each claim on the ground that it had not been shown on balance of probability that any defendant had caused the disease.
+Reliance on McGhee was rejected on the ground that Lord Bridge in Wilsher had held that it established no new principle of causation and that, in McGhee, there had been no doubt that the defendant had caused the dermatitis the only question was whether the defendant had done so in breach of duty.
+If McGhee was applied in the Fairchild situation there was a risk that a defendant would be held liable for a disease that it had not caused at all.
+The House of Lords reversed the Court of Appeal, holding that the principle in McGhee was applicable.
+Lord Bingham at paras 21 and 22 held that Lord Bridge had been wrong in Wilsher to hold that McGhee represented no more than a robust finding of fact that the defenders negligence had materially contributed to the pursuers injury.
+The opinions of at least the majority in McGhee could not be read as decisions of fact or orthodox applications of settled law.
+The House had adapted (rather than adopted) the orthodox test to meet the problem of proving causation that had arisen on the facts of that case.
+Lord Nicholls of Birkenhead put the matter this way at para 44: Given the medical evidence in McGhee, it was not open to the House, however robustly inclined, to draw an inference that the employers negligence had in fact caused or materially contributed to the onset of the dermatitis in the sense that, but for that negligence, the dermatitis would not have occurred.
+Instead, a less stringent causal connection was regarded as sufficient.
+It was enough that the employer had materially increased the risk of harm to the employee.
+There is room for debate, and there has been debate, as to the precise basis upon which the House in Fairchild applied the McGhee principle to the mesothelioma claims under consideration.
+I do not propose to enter that debate, for it was overtaken by the decision of the House in Barker.
+At this point it suffices to note the following.
+The House was agreed that the application of the McGhee principle was circumscribed by a number of conditions, though not agreed as to what these were.
+Lord Bingham at para 2 identified 6 relevant factors that applied to the cases under consideration, before going on to hold that they brought into play the McGhee principle: (1) C was employed at different times and for differing periods by both A and B, and (2) A and B were both subject to a duty to take reasonable care or to take all practicable measures to prevent C inhaling asbestos dust because of the known risk that asbestos dust (if inhaled) might cause a mesothelioma, and (3) both A and B were in breach of that duty in relation to C during the periods of C's employment by each of them with the result that during both periods C inhaled excessive quantities of asbestos dust, and (4) C is found to be suffering from a mesothelioma, and (5) any cause of C's mesothelioma other than the inhalation of asbestos dust at work can be effectively discounted, but (6) C cannot (because of the current limits of human science) prove, on the balance of probabilities, that his mesothelioma was the result of his inhaling asbestos dust during his employment by A or during his employment by B or during his employment by A and B taken together.
+At para 7 Lord Bingham explained the shortcomings of medical science: It is not known what level of exposure to asbestos dust and fibre can be tolerated without significant risk of developing a mesothelioma, but it is known that those living in urban environments (although without occupational exposure) inhale large numbers of asbestos fibres without developing a mesothelioma.
+It is accepted that the risk of developing a mesothelioma increases in proportion to the quantity of asbestos dust and fibres inhaled: the greater the quantity of dust and fibre inhaled, the greater the risk.
+But the condition may be caused by a single fibre, or a few fibres, or many fibres: medical opinion holds none of these possibilities to be more probable than any other, and the condition once caused is not aggravated by further exposure.
+So if C is employed successively by A and B and is exposed to asbestos dust and fibres during each employment and develops a mesothelioma, the very strong probability is that this will have been caused by inhalation of asbestos dust containing fibres.
+But C could have inhaled a single fibre giving rise to his condition during employment by A, in which case his exposure by B will have had no effect on his condition; or he could have inhaled a single fibre giving rise to his condition during his employment by B, in which case his exposure by A will have had no effect on his condition; or he could have inhaled fibres during his employment by A and B which together gave rise to his condition; but medical science cannot support the suggestion that any of these possibilities is to be regarded as more probable than any other.
+There is no way of identifying, even on a balance of probabilities, the source of the fibre or fibres which initiated the genetic process which culminated in the malignant tumour.
+Lord Bingham identified at para 23 the problem raised by the facts of Fairchild as follows: The problem of attributing legal responsibility where a victim has suffered a legal wrong but cannot show which of several possible candidates (all in breach of duty) is the culprit who has caused him harm is one that has vexed jurists in many parts of the world for many years.
+He justified his decision by the following policy considerations set out at para 33: It can properly be said to be unjust to impose liability on a party who has not been shown, even on a balance of probabilities, to have caused the damage complained of.
+On the other hand, there is a strong policy argument in favour of compensating those who have suffered grave harm, at the expense of their employers who owed them a duty to protect them against that very harm and failed to do so, when the harm can only have been caused by breach of that duty and when science does not permit the victim accurately to attribute, as between several employers, the precise responsibility for the harm he has suffered.
+I am of opinion that such injustice as may be involved in imposing liability on a duty breaking employer in these circumstances is heavily outweighed by the injustice of denying redress to a victim.
+Lord Bingham did not expressly consider the approach to be adopted where a claimant had been exposed to asbestos dust both from employers in breach of duty and from sources that did not involve fault, or which involved fault on the part of the claimant himself.
+At para 34 he expressly limited the special rule of causation that he was endorsing to a situation where all six of the factors that he had identified at the start of his speech were present.
+At para 22 he underlined why the special rule did not apply on the facts of Wilsher: It is plain, in my respectful opinion, that the House was right to allow the defendants' appeal in Wilsher, for the reasons which the Vice Chancellor had given and which the House approved.
+It is one thing to treat an increase of risk as equivalent to the making of a material contribution where a single noxious agent is involved, but quite another where any one of a number of noxious agents may equally probably have caused the damage.
+The other members of the House did not circumscribe the special rule of causation as tightly as Lord Bingham.
+In McGhee itself the causal competition had been between exposure to dust that involved no fault and exposure that involved fault on the part of the employers, a point made by Lord Rodger at para 153.
+He also held that Mustill LJ had illegitimately extended the special causation test in Wilsher.
+He held, at para 149: Mustill LJs extension of the approach in McGhee to a situation where there were all kinds of other possible causes of the plaintiff's condition, resulted in obvious injustice to the defendants.
+In particular, there was nothing to show that the risk which the defendants' staff had created that the plaintiff would develop retrolental fibroplasia because of an unduly high level of oxygen had eventuated.
+That being so, there was no proper basis for applying the principle in McGhee.
+As [Sir Nicolas Browne Wilkinson V C] decisively observed, a failure to take preventive measures against one of five possible causes was no evidence as to which of those five had caused the injury.
+The reasoning of the Vice Chancellor, which the House adopted, provided a sound and satisfactory basis for distinguishing McGhee and for allowing the appeal.
+Lord Rodger set out his conclusions at para 170: First, the principle is designed to resolve the difficulty that arises where it is inherently impossible for the claimant to prove exactly how his injury was caused.
+It applies, therefore, where the claimant has proved all that he possibly can, but the causal link could only ever be established by scientific investigation and the current state of the relevant science leaves it uncertain exactly how the injury was caused and, so, who caused it.
+McGhee and the present cases are examples.
+Secondly, part of the underlying rationale of the principle is that the defendant's wrongdoing has materially increased the risk that the claimant will suffer injury.
+It is therefore essential not just that the defendant's conduct created a material risk of injury to a class of persons but that it actually created a material risk of injury to the claimant himself.
+Thirdly, it follows that the defendant's conduct must have been capable of causing the claimant's injury.
+Fourthly, the claimant must prove that his injury was caused by the eventuation of the kind of risk created by the defendant's wrongdoing.
+In McGhee, for instance, the risk created by the defenders' failure was that the pursuer would develop dermatitis due to brick dust on his skin and he proved that he had developed dermatitis due to brick dust on his skin.
+By contrast, the principle does not apply where the claimant has merely proved that his injury could have been caused by a number of different events, only one of which is the eventuation of the risk created by the defendants wrongful act or omission.
+Wilsher is an example.
+Fifthly, this will usually mean that the claimant must prove that his injury was caused, if not by exactly the same agency as was involved in the defendant's wrongdoing, at least by an agency that operated in substantially the same way.
+A possible example would be where a workman suffered injury from exposure to dusts coming from two sources, the dusts being particles of different substances each of which, however, could have caused his injury in the same way.
+Without having heard detailed argument on the point, I incline to the view that the principle was properly applied by the Court of Appeal in Fitzgerald v Lane [1987] QB 781.
+Sixthly, the principle applies where the other possible source of the claimant's injury is a similar wrongful act or omission of another person, but it can also apply where, as in McGhee, the other possible source of the injury is a similar, but lawful, act or omission of the same defendant.
+I reserve my opinion as to whether the principle applies where the other possible source of injury is a similar but lawful act or omission of someone else or a natural occurrence.
+The conundrum
+Neither Lord Bingham nor Lord Rodger explained the nature of the principle that justifies restricting the application of McGhee to the situation where the competing causes of the injury suffered by the claimant involve the same or a similar noxious substance or agency.
+There is, however, a more significant conundrum raised by Fairchild which is particularly relevant to this appeal.
+Lord Bingham observed (see para 40 above) that it is accepted that the risk of developing mesothelioma increases in proportion to the quantity of asbestos dust and fibres inhaled.
+If this is so why should one not determine the probability that a particular defendant caused a claimants mesothelioma by analysing the extent to which he wrongfully contributed to the exposure of the claimant to asbestos dust and fibres? This conundrum is highlighted by the decision of the House in Barker.
+Barker
+The question that Lord Rodger had expressly left open at the end of his speech in Fairchild was raised directly in Barker, one of three appeals that were heard together.
+The claimant was the widow of a man who had died of mesothelioma.
+He had been exposed to asbestos dust on three occasions in his working life.
+Once when working for a company which had since become insolvent, once when working for the defendant and once when working for himself.
+On the last occasion he had failed to take reasonable precautions for his own safety.
+In the courts below the defendant had been held jointly and severally liable with the insolvent company, but the claimants damages had been reduced by 20% to reflect her husbands contributory negligence.
+The other two appeals involved employees who had been exposed to asbestos dust by a series of employers, many of whom had since been held insolvent.
+In the courts below the solvent employers who had been sued were held jointly and severally liable.
+In each appeal the defendants argued that the special rule of causation that the House had applied in Fairchild should be further refined so as to render each employer liable only for that proportion of the damages which represented his contribution to the risk that the employee would contract mesothelioma.
+This submission was accepted by all members of the Committee with the exception of Lord Rodger, who dissented.
+Lord Hoffmann gave the leading speech for the majority.
+He dealt first with the question of whether the Fairchild principle could apply in a case where part of the exposure was non tortious.
+At para 17 he gave a positive answer to that question: The purpose of the Fairchild exception is to provide a cause of action against a defendant who has materially increased the risk that the claimant will suffer damage and may have caused that damage, but cannot be proved to have done so because it is impossible to show, on a balance of probability, that some other exposure to the same risk may not have caused it instead.
+For this purpose, it should be irrelevant whether the other exposure was tortious or non tortious, by natural causes or human agency or by the claimant himself.
+These distinctions may be relevant to whether and to whom responsibility can also be attributed, but from the point of view of satisfying the requirement of a sufficient causal link between the defendant's conduct and the claimant's injury, they should not matter.
+Lord Hoffmann then turned to deal with apportionment.
+He did so on the premise that mesothelioma is an indivisible injury caused by a single exposure to asbestos dust.
+The greater the overall exposure, the greater the risk of an individual fatal exposure: see paras 2 and 26.
+If, under the Fairchild principle exposure had been treated as if it had actually contributed to the disease, the conventional approach would have resulted in all those responsible for exposure being held jointly and severally liable for the injury caused.
+Lord Hoffmann did not consider it fair to impose such liability on employers in cases in which there is merely a relatively small chance that they caused the injury (paras 43 and 46).
+He avoided this consequence by interpreting the Fairchild principle as one that rendered a defendant liable for contributing to risk, not contributing to injury.
+The risk created was itself the damage, albeit that the principle only applied where injury had been caused.
+As risk or chance was infinitely divisible, each defendant could be held liable for his contribution to the risk.
+At the end of his consideration of the issue of causation, Lord Hoffmann made the following finding as to the limit of the Fairchild principle or exception: 24.
+In my opinion it is an essential condition for the operation of the exception that the impossibility of proving that the defendant caused the damage arises out of the existence of another potential causative agent which operated in the same way.
+It may have been different in some causally irrelevant respect, as in Lord Rodger's example of the different kinds of dust, but the mechanism by which it caused the damage, whatever it was, must have been the same.
+So, for example, I do not think that the exception applies when the claimant suffers lung cancer which may have been caused by exposure to asbestos or some other carcinogenic matter but may also have been caused by smoking and it cannot be proved which is more likely to have been the causative agent.
+In considering how apportionment would work in practice, Lord Hoffmann
+said this: 36.
+Treating the creation of the risk as the damage caused by the defendant would involve having to quantify the likelihood that the damage (which is known to have materialised) was caused by that particular defendant.
+It will then be possible to determine the share of the damage which should be attributable to him.
+The quantification of chances is by no means unusual in the courts.
+For example, in quantifying the damage caused by an indivisible injury, such as a fractured limb, it may be necessary to quantify the chances of future complications.
+Sometimes the law treats the loss of a chance of a favourable outcome as compensatable damage in itself.
+The likelihood that the favourable outcome would have happened must then be quantified: see, for example, Chaplin v Hicks [1911] 2 KB 786 and Kitchen v Royal Air Force Association [1958] 1 WLR 563. 37.These are of course cases in which there is uncertainty as to what will be, or would have been, the outcome of a known event; for example, the consequences of a fractured ankle, a beauty contest or a lawsuit.
+The present case involves uncertainty as to the cause of a known outcome, namely, the mesothelioma.
+But in principle I can see no reason why the courts cannot quantify the chances of X having been the cause of Y just as well as the chance of Y being the outcome of X.
+He returned to this theme under the heading of quantification at para 48: But when the damage is apportioned among the persons responsible for the exposures to asbestos which created the risk, it is known that those exposures were together sufficient to cause the disease.
+The damages which would have been awarded against a defendant who had actually caused the disease must be apportioned to the defendants according to their contributions to the risk.
+It may be that the most practical method of apportionment will be according to the time of exposure for which each defendant is responsible, but allowance may have to be made for the intensity of exposure and the type of asbestos.
+These questions are not before the House and it is to be hoped that the parties, their insurers and advisers will devise practical and economical criteria for dealing with them.
+These passages raise the conundrum to which I have referred in para 45 above in an acute form.
+If it is possible, on the basis of responsibility for exposure, to deduce the relative likelihood of a defendant being the employer who actually caused the injury, why should one not resolve liability according to the normal test of balance of probability.
+If one can determine that there was a relatively small chance that a particular employer caused the injury, why should that employer not be absolved from liability on the ground that he can prove, on balance of probability, that he was not responsible?
+Lord Scott agreed with the reasoning and the result reached by Lord Hoffmann.
+He recognised, however, that the limitations on medical knowledge rendered it impossible to say whether mesothelioma was caused by a single exposure, and thus a single employer, or by a combination of more than one exposures and thus, possibly, by more than one employer: para 51.
+His speech also implicitly raised the conundrum.
+When dealing with apportionment he said this, at para 62: Ascertainment of the degree of risk would be an issue of fact to be determined by the trial judge.
+The issue would depend upon the duration of the exposure for which each negligent defendant was responsible compared with the total duration of the claimant's exposure to the injurious agent in question.
+It might depend also on the intensity of the exposure for which the defendant was responsible compared with the intensity of the exposure for which the defendant was not responsible.
+The exact type of agent might be a relevant factor in assessing the degree of risk.
+I have in mind that there are different types of asbestos and some might create a greater risk than others.
+Other factors relevant to the degree of risk might come into the picture as well.
+The assessment of the percentage risk for which an individual defendant was responsible, and therefore the percentage of the total damage for which that defendant could be held liable, would, as I have said, be an issue of fact to be decided on the evidence in each case.
+Why could one not assess the probability of having caused the injury on the same basis as that used to apportion contribution to the risk of causing the injury?
+The same question is raised by the speech of Lord Walker, who also agreed with the reasoning and result reached by Lord Hoffmann.
+He observed, at para 109: A rule of law by which exposure to risk of injury is equated with legal responsibility for that injury entails the possibility that an employer may be held liable for an injury which was not in fact caused by that exposure (though in the present state of medical science, that fact can be neither proved nor disproved).
+This possible unfairness cannot be eliminated, as the House recognised in Fairchild, but it is considerably reduced if each employer's liability is limited in proportion to the fraction of the total exposure (measured by duration and intensity) for which each is responsible.
+The underlying premise of all three speeches, as of the speeches in Fairchild, is that it is not possible to determine causation unless medical science enables one to do so with certainty.
+But the law of causation does not deal in certainties; it deals in probabilities.
+Lady Hale agreed in general with the majority, but she did not accept that the gist of the actions was the risk created rather than the mesothelioma.
+To that extent she shared the reasoning that had led Lord Rodger to dissent.
+The result of the decision in Barker was that, where not all those who were responsible for an employees mesothelioma were before the court, only a proportion of the relevant damages would be recoverable.
+This was highly significant having regard to the very long latency period of the disease, for in most cases there was a high likelihood that there would be employers who had contributed to exposure and who had gone into liquidation.
+Apportionment also dealt with the problem of contributory negligence.
+The rejoicing with which the insurance industry must have greeted this result was short lived as Parliament intervened.
+The Compensation Act 2006
+The preamble to the 2006 Act includes among its objects to make provision about damages for mesothelioma.
+The relevant parts of the provision made are as follows: 3.
+Mesothelioma: damages (1)This section applies where (a) a person (the responsible person) has negligently or in breach of statutory duty caused or permitted another person (the victim) to be exposed to asbestos, (b) the victim has contracted mesothelioma as a result of exposure to asbestos, (c) because of the nature of mesothelioma and the state of medical science, it is not possible to determine with certainty whether it was the exposure mentioned in paragraph (a) or another exposure which caused the victim to become ill, and (d) the responsible person is liable in tort, by virtue of the exposure mentioned in paragraph (a), in connection with damage caused to the victim by the disease (whether by reason of having materially increased a risk or for any other reason). (2) The responsible person shall be liable (a) in respect of the whole of the damage caused to the victim by the disease (irrespective of whether the victim was also exposed to asbestos (i) other than by the responsible person, whether or not in circumstances in which another person has liability in tort, or (ii) by the responsible person in circumstances in which he has no liability in tort), and (b) jointly and severally with any other responsible person.
+This provision has grafted onto the Fairchild/Barker principle a special rule in relation to liability in damages that applies only to mesothelioma.
+The 2006 Act, coupled with Fairchild, has draconian consequences for an employer who has been responsible for only a small proportion of the overall exposure of a claimant to asbestos dust, or his insurers, but it would be wrong to have regard to that fact when considering the issues raised by these appeals.
+Parliament has willed it so.
+The facts in Greif as found by the judge
+Mrs Costello died of mesothelioma in January 2006 at the age of 74.
+She had worked for Greif or their predecessors at their factory at Ellesmere Port, Cheshire, between 1966 and 1984.
+Greif exposed those working at that factory to asbestos dust in breach of duty.
+The greatest exposure was on the factory floor, but to a much lesser extent asbestos dust permeated to other parts of the factory.
+Mrs Costellos exposure was in those other parts as she moved around the factory.
+This occupational exposure was very light.
+The judge, His Honour Judge Main QC, heard expert evidence which quantified this exposure and compared it to the environmental exposure that would be experienced by everyone.
+While he held that he could only use the broadest sorts of estimates as to Mrs Costellos asbestos exposure he none the less based some very specific findings on this expert evidence.
+He held that her exposure to asbestos over her working life at Greifs factory increased the risk to which environmental exposure subjected her from 24 cases per million to 28.39 cases per million an increase of risk of 18%.
+It was on the basis of this finding that the judge held that the claimants case on causation had not been made out.
+His starting point was that the special rule in Fairchild had no application where there was only one tortfeasor and where the competition as to causation was between an innocent and a tortious source of dust.
+In that situation he adopted an approach to causation which had been adopted, by agreement between the parties, in an earlier case on similar facts in the Cardiff County Court decided by HH Judge Hickinbottom: Jones v Metal Box Ltd (unreported) 11 January 2007: 53. (ii) It was common ground that, in order to succeed with the claim, the claimant must show that as a result of her exposure to asbestos dust at work as I have described, Mrs Jones risk of mesothelioma at least doubled from that which it would have been without that exposure.
+That in my judgment is a correct analysis of the position with regard to medical causation: because unless the claimant can show that the risk was doubled, then it is more likely than not that the mesothelioma had an idiopathic rather than an occupational cause Thus Judge Hickinbottom applied the doubles the risk test.
+Applying that test Judge Main held: On the facts of this case, the claimant could only succeed if she were able to prove that all Mrs Costellos exposure to asbestos was within the Oil Sites premises, cumulatively, over her 18 years employment exceeded her environmental risks.
+Here environmental risks are the same as those idiopathic risks referred to by Judge Hickinbottom.
+This in my judgment regrettably, she failed to do.
+Whilst Mrs Costellos risk of contracting mesothelioma increased by 18% the bottom line is that it was caused by her environmental exposure to asbestos.
+Her claim against the defendants accordingly must be dismissed.
+In the Court of Appeal Smith LJ gave the leading judgment.
+In discussing the legal principles applicable she first referred to McGhee and Fairchild.
+She then considered the doubles the risk test in relation to cases of diseases other than mesothelioma.
+She reached the following conclusion of general principle: 20.
+The theory that causation could be proved on the balance of probabilities by reference to a doubling of the risk of injury was first applied by Mackay J in the oral contraceptive litigation XYZ v Schering Health Care Ltd (2002) 70 BMLR 88.
+As a preliminary issue, the parties agreed that the judge should examine the epidemiological evidence relating to the risk of deep vein thrombosis arising from two different types of oral contraceptive.
+The claimant group could succeed only if the epidemiology showed that the risk of harm arising from the type of contraceptive they had been taking (which it was assumed they had not been warned about and would not have taken if warned) was at least twice that arising from the type which they had formerly been taking (which it was assumed they had been warned about and which risk they had accepted).
+The logic behind this was that, if the risk from potential cause A is x% and the risk from the other potential cause B is 2.1x%, it is more likely than not that the condition which has eventuated has been caused by B. 21.
+Since the oral contraceptive case, this method of proving causation has been applied in cases of lung cancer where the claimant has been tortiously exposed to asbestos and non tortiously exposed to cigarette smoke, both of which are potent causes of the condition.
+Expert evidence is received as to the relative risks created by the two forms of exposure and, if, on the individual facts of the case, the risk from the asbestos exposure is more than double the risk from smoking, the claimant succeeds. 22.
+The only case of which I am aware in which this approach has been applied or approved in the Court of Appeal is Novartis Grimsby Ltd v Cookson [2007] EWCA Civ 1261.
+That was a case of bladder cancer, in which the claimant had been tortiously exposed to carcinogens in the course of his employment in a dye works.
+He had also been a regular smoker.
+Both were potential causes of bladder cancer.
+At trial, the defendants case was that the tortious exposure at work had been minimal.
+The recorder held that it was not minimal and applied the Bonnington case [1956] AC 613; he held that the tort had made a material contribution to the disease.
+On appeal, the appellant employer argued, correctly, that that was wrong as the tort could not be said to have made a contribution to the disease, only to the risk of the disease developing.
+The claimant argued that the case ought to come within the Fairchild exception so that all that was necessary was to prove a material increase in risk.
+The appellant employer contended that the Fairchild case [2003] 1 AC 32 should not be extended to cover such a case.
+In the event, the Court of Appeal observed that there was expert evidence, which the recorder had accepted, to the effect that the tortious exposure had more than doubled the risk arising from smoking.
+The court held that that was sufficient for the claim to succeed. 23.
+In my view, it must now be taken that, saving the expression of a different view by the Supreme Court, in a case of multiple potential causes, a claimant can demonstrate causation by showing that the tortious exposure has at least doubled the risk arising from the non tortious cause or causes.
+Smith LJ went on to consider whether the doubles the risk test could be applied in relation to mesothelioma.
+She held that it could not.
+She did so on the basis that by enacting section 3(1)(d) of the Compensation Act 2006 Parliament had laid down a rule that causation in a mesothelioma case could be established by proof of a material increase in risk: para 34.
+This precluded a defendant from averring, in a case of mesothelioma, that the claimant had to satisfy the doubles the risk test.
+She held, at para 27, that the judge should have applied the test of material increase of risk, ie the Fairchild/Barker rule, and in consequence the appeal should be allowed: it is not now possible for this court to consider whether, at common law, the Fairchild exception should be limited in application to cases in which it is quite impossible for a claimant to prove causation by reference to a more than twofold increase in risk.
+That is because Parliament has intervened by enacting section 3 of the Compensation Act 2006 so that the common law simpliciter no longer governs claims for damages in mesothelioma cases.
+Had Smith LJ held that the doubles the risk test could be applied to mesothelioma, she would not have allowed the decision of the judge to stand.
+She held that the doubles the risk test had been advanced without adequate notice, so that Sienkiewicz had been wrong footed and denied a fair chance to deal with the expert evidence.
+The case would have to be remitted for a new trial. i)
+Scott Baker LJ and Lord Clarke agreed with the judgment of Smith LJ.
+Lord Clarke held that the Fairchild test had to be applied by reason both of common law and the construction of section 3 of the 2006 Act.
+Submissions
+I can summarise the arguments advanced by Mr Stuart Smith on behalf of Greif as follows, adopting a different order to that adopted in his printed case: The Court of Appeal erred in holding that section 3 of the 2006 Act mandated the application of the Fairchild/Barker rule of causation in mesothelioma cases. ii) The Fairchild/Barker rule does not apply in this case because this is a single exposure case. iii) It is possible in this case to adopt a conventional approach to causation by applying the doubles the risk test.
+This approach demonstrates that Mrs Costello contracted mesothelioma as a result of environmental exposure and not as a result of the slight additional exposure to which she was subjected by Greif. iv) The claim also fails because the exposure to which Greif subjected Mrs Costello was not material.
+Occupational exposure is not material unless it more than doubles the amount of environmental exposure to which a claimant is subject.
+In the case of Mrs Costello the exposure for which Greif was responsible was insignificant.
+The findings of exposure made by the trial judge could not be supported by the evidence and there was no justification for a fresh trial.
+Mr Melton QC for Mrs Costellos estate challenged all these submissions.
+He submitted that the Fairchild test was applicable and attacked the application of the doubles the risk test.
+He further submitted that the asbestos dust to which Mrs Costello was subjected materially increased the risk that she would contract mesothelioma and that, applying the Fairchild test and section 3 of the 2006 Act, the Court of Appeal had properly held the claim to be made out in full.
+Discussion
+five headings: I propose to discuss the problems raised by this appeal under the following involving diseases other than mesothelioma? i) The effect of section 3 of the Compensation Act 2006. ii) Epidemiology and the nature of the doubles the risk test. iii) Can the doubles the risk test be applied in multiple cause cases iv) Can the doubles the risk test be applied to mesothelioma cases. v) What constitutes a material increase in risk? vi) The result in this case.
+The effect of section 3 of the Compensation Act 2006
+The Court of Appeal treated section 3(1) as enacting that, in cases of mesothelioma, causation can be proved by demonstrating that the defendant wrongfully materially increased the risk of a victim contracting mesothelioma.
+This was a misreading of the subsection.
+Section 3(1) does not state that the responsible person will be liable in tort if he has materially increased the risk of a victim of mesothelioma.
+It states that the section applies where the responsible person is liable in tort for materially increasing that risk.
+Whether and in what circumstances liability in tort attaches to one who has materially increased the risk of a victim contracting mesothelioma remains a question of common law.
+That law is presently contained in Fairchild and Barker.
+Those cases developed the common law by equating materially increasing the risk with contributing to the cause in specified and limited circumstances, which include ignorance of how causation in fact occurs.
+The common law is capable of further development.
+Thus section 3 does not preclude the common law from identifying exceptions to the material increase of risk test, nor from holding, as more is learned about mesothelioma, that the material increase of risk test no longer applies.
+The Fairchild/Barker rule was adopted in order to cater for the ignorance that existed at the time of those decisions about the way in which mesothelioma is caused.
+Section 3 does not preclude the courts from reverting to the conventional approach of balance of probabilities in mesothelioma cases should advances in medical science in relation to this disease make such a step appropriate.
+Greif contend that the Court should identify an exception to the Fairchild/Barker rule where there has been only one occupational exposure to risk and that, in those circumstances, the Court can and should apply the doubles the risk test.
+Section 3 poses no bar to that contention; it must be considered on its merits.
+Epidemiology and the nature of the doubles the risk test
+The doubles the risk test is one that applies epidemiological data to determining causation on balance of probabilities in circumstances where medical science does not permit determination with certainty of how and when an injury was caused.
+The reasoning goes as follows.
+If statistical evidence indicates that the intervention of a wrongdoer more than doubled the risk that the victim would suffer the injury, then it follows that it is more likely than not that the wrongdoer caused the injury.
+I propose first to consider the authorities to which Smith LJ referred to see the extent to which they support the general proposition that she stated at para 23 of her judgment.
+Smith LJ founded the general proposition in para 23 of her judgment (see para 63 above) on one decision of Mackay J, one decision of the Court of Appeal and on unspecified cases of exposure both to asbestos and to cigarette smoke.
+When these are examined it becomes apparent that they exemplify the application of the doubles the risk test in three quite different circumstances.
+I propose to look at these before considering the nature of the epidemiological principle applied in each of them.
+XYZ is a lengthy and complex judgment devoted exclusively to a preliminary issue on the effect of epidemiological evidence.
+The issue was whether a second generation of oral contraceptives more than doubled the risk of causing deep vein thrombosis (DVT) that was created by the first generation of oral contraceptives.
+It was common ground that, if the claimants in this group litigation could not establish this, their claims under the Consumer Protection Act 1987 were doomed to failure.
+I do not believe that Smith LJ has correctly identified the relevance of this issue.
+It was not whether the DVT suffered by the claimants had been caused by the second generation of oral contraceptives which they had taken.
+It was whether the second generation of contraceptives created a significantly greater risk than the first.
+The experts appear to have been in agreement that the doubles the risk test was the proper one to apply in order to resolve this issue.
+Thus I do not believe that that decision affords any direct assistance to the question of whether the doubles the risk test is an appropriate test for determining causation in a case of multiple potential causes.
+It does, however, contain a detailed and illuminating discussion of epidemiology and I shall revert to it when considering that topic.
+Shortell v BICAL Construction Ltd (Liverpool District Registry, 16 May 2008), another decision of Mackay J, was a claim in relation to a death caused by lung cancer where there were two possible causes of the cancer.
+One was occupational exposure to asbestos and the other was cigarette smoke.
+The defendant was responsible for the former but not for the latter.
+Applying the Bonnington test of causation, the issue was whether the asbestos to which the victim had been exposed had made a material contribution to the cause of the victims lung cancer.
+The expert evidence, given by both medical and epidemiological experts, but based in the case of each, I suspect, on epidemiological data, was that asbestos and cigarette smoke not merely combined cumulatively to cause lung cancer, but that they had a synergistic effect in doing so.
+This evidence was enough, as I see it, to satisfy the Bonnington test of causation, as the victim had been exposed both to significant quantities of asbestos fibres and to significant cigarette smoke.
+judgment: In these circumstances, I am puzzled by the following passages in the 49.The causation of lung cancer as opposed to mesothelioma is dependent on an aggregate dose either of asbestos fibre or smoke.
+Mr Feeny for the defendants rightly in my view concedes that if the claimant proves on a balance of probabilities that the risk factor created by his clients breach of duty more than doubled the deceaseds relative risk of contracting lung cancer then the claimants case is proved, and the only remaining issue is contributory negligence.
+For the reasons I have advanced above I am satisfied on the balance of probabilities that once the estimate of 99 fibre/ml years is accepted as I have accepted it the relative risk is on any view more than doubled. 51.
+Where, as here, it is the case that the claimant has proved causation against this defendant by showing a more than doubled relative risk it is not relevant as between the claimant and the defendant to argue that another agent (tortious or otherwise) may also have contributed to the occurrence of the disease.
+Epidemiological evidence indicated that, had the victim not been a smoker, his exposure to asbestos would have more than doubled the risk that he would get lung cancer.
+I do not, however, see that it was essential for the claimant to prove this.
+For this reason I question whether Smith LJs endorsement of the doubles the risk test is correct in cases where asbestos and tobacco smoke have combined to cause lung cancer.
+Novartis Grimsby Ltd v Cookson [2007] EWCA Civ 1261, which was the third case to which Smith LJ referred, was an appeal in which she gave the only reasoned judgment.
+The claimant sought damages against his employers for causing him bladder cancer.
+It is known that bladder cancer is caused by exposure to amines and the claimant had been so exposed from two sources.
+One was his employment, which wrongfully exposed him to amines used in the manufacture of dyes.
+The other was smoking, for cigarette smoke contains amines.
+There was expert evidence, which the recorder accepted, that the occupational exposure had more than doubled the risk caused by smoking.
+There was an issue as to whether Bonnington applied or whether the claimant had to prove that but for the occupational exposure he would not have suffered the cancer.
+Smith LJ did not find it necessary to resolve this issue, for at para 74 she held that the but for test was satisfied: In terms of risk, if occupational exposure more than doubles the risk due to smoking, it must, as a matter of logic, be probable that the disease was caused by the former.
+On analysis, it is only this last proposition that supports Smith LJs general statement that a claimant can prove causation where there are a number of potential causes of a disease or injury by showing that the tortious exposure had at least doubled the risk arising from the non tortious cause or causes.
+I agree with her that, as a matter of logic, if a defendant is responsible for a tortious exposure that has more than doubled the risk of the victims disease, it follows on the balance of probability that he has caused the disease, but these are statistical probabilities and the issue in this case is whether a statistical approach to determining causation should be applied in place of the Fairchild/Barker test.
+I have derived assistance in relation to the next section of this judgment from the judgment of Mackay J in XYZ.
+He there set out a careful and detailed introduction into the discipline of epidemiology and I shall gratefully borrow some of the clear language that he used.
+Epidemiology is the study of the occurrence and distribution of events (such as disease) over human populations.
+It seeks to determine whether statistical associations between these events and supposed determinants can be demonstrated.
+Whether those associations if proved demonstrate an underlying biological causal relationship is a further and different question from the question of statistical association on which the epidemiology is initially engaged.
+Epidemiology may be used in an attempt to establish different matters in relation to a disease.
+It may help to establish what agents are capable of causing a disease, for instance that both cigarette smoke and asbestos dust are capable of causing lung cancer, it may help to establish which agent or which source of an agent, was the cause, or it may help to establish whether or not one agent combined with another in causing the disease.
+Epidemiological data can be obtained by comparing the relevant experience (eg contraction of a disease) of a group or cohort that is subject to exposure to a particular agent with the experience of a group or cohort that is not.
+Where an agent is known to be capable of causing a disease, the comparison enables the epidemiologist to calculate the relevant risk (RR) that flows from the particular exposure.
+An RR of 1 indicates that there is no association between the particular exposure and the risk.
+An RR of 2 indicates that the particular exposure doubled the chance that the victim would contract the disease.
+Statistically the likelihood that the victim would have contracted the disease without the particular exposure is then equal to the likelihood that the victim would not have contracted the disease but for that exposure.
+Where the RR exceeds 2 the statistical likelihood is that the particular exposure was the cause of the disease.
+The greater the RR the greater the statistical likelihood that the particular exposure caused the disease.
+An RR of just over 2 is a tenuous basis for concluding that the statistical probable cause of a disease was also the probable biological cause, or cause in fact.
+The greater the RR the greater the likelihood that the statistical cause was also the biological cause.
+One reason why an RR of just over 2 is a tenuous basis for determining the biological cause is that the balance of that probability is a very fine one.
+Another is that the epidemiological data may not be reliable.
+One reason for this may be that the relevant survey or surveys have been insufficiently extensive to produce data that is truly representative.
+Epidemiologists conventionally seek to indicate the reliance that can be placed on an RR by determining 95% confidence limits or intervals (C1) around it.
+The approach that I have been describing focuses on one specific causal agent or a number of specific causal agents.
+There may well, however, be other causal factors that operate in conjunction with the agent exposure to which is the particular object of investigation, eg the age or genetic susceptibility of the victim.
+The identification of one probable cause of a disease does not preclude the possibility that there are other contributory causes.
+Mr Stuart Smith in his printed case helpfully referred us to a number of foreign authorities which demonstrate that the weight to be attached to epidemiological evidence can vary significantly according to judicial policy.
+In America the test of causation in toxic tort cases varies from state to state.
+The most helpful case in the present context is Merrell Dow Pharmaceuticals Inc v Havner (1997) 953 SW 2d 706, a decision of the Supreme Court of Texas, for this gives detailed consideration to the doubles the risk test.
+The claim was one of a large number brought against the manufacturer of the prescription drug Bendectin.
+The parents of a child born with a limb reduction birth defect alleged that the cause of this was Bendectin, taken by the mother when she was pregnant.
+The parents sought to establish causation by epidemiological evidence which they contended demonstrated that taking this drug more than doubled the risk of such birth defects.
+Giving the judgment of the court Phillips CJ remarked, at p 716, that the doubling of the risk issue in toxic tort cases had provided fertile ground for the scholarly plow.
+He proceeded to refer to much of this, summarising the position as follows, at p 717: Some commentators have been particularly critical of attempts by the courts to meld the more than 50% probability requirement with the relative risks found in epidemiological studies in determining if the studies were admissible or were some evidence that would support an award for the claimant.
+But there is disagreement on how epidemiological studies should be used.
+Some commentators contend that the more than 50% probability requirement is too stringent, while others argue that epidemiological studies have no relation to the legal requirement of more likely than not.
+The Chief Justice went on to hold that, although there was not a precise fit between science and legal burdens of proof, properly designed and executed epidemiological studies could form part of evidence supporting causation in a toxic tort case and that there was a rational basis for relating the requirement that there be more than a doubling of the risk to the more likely than not burden of proof.
+At p 718 the Chief Justice commented: But the law must balance the need to compensate those who have been injured by the wrongful actions of another with the concept deeply imbedded in our jurisprudence that a defendant cannot be found liable for an injury unless the preponderance of the evidence supports cause in fact.
+The use of scientifically reliable epidemiological studies and the requirement of more than a doubling of the risk strikes a balance between the needs of our legal system and the limits of science.
+We do not hold, however, that a relative risk of more than 2.0 is a litmus test or that a single epidemiological test is legally sufficient evidence of causation.
+Other factors must be considered.
+As already noted, epidemiological studies only show an association.
+He then emphasised the need for the design and execution of epidemiological studies to be examined in order to identify possible bias.
+At pp 720 721 he made a comment that is particularly pertinent in the context of this appeal: Finally, we are cognizant that science is constantly re evaluating conclusions and theories and that over time, not only scientific knowledge but scientific methodology in a particular field may evolve.
+We have strived to make our observations and holdings in light of current, generally accepted scientific methodology.
+However, courts should not foreclose the possibility that advances in science may require re evaluation of what is good science in future cases.
+Can the doubles the risk test be applied in multiple cause cases involving diseases other than mesothelioma?
+For reasons that I have already explained, I see no scope for the application of the doubles the risk test in cases where two agents have operated cumulatively and simultaneously in causing the onset of a disease.
+In such a case the rule in Bonnington applies.
+Where the disease is indivisible, such as lung cancer, a defendant who has tortiously contributed to the cause of the disease will be liable in full.
+Where the disease is divisible, such as asbestosis, the tortfeasor will be liable in respect of the share of the disease for which he is responsible.
+Where the initiation of the disease is dose related, and there have been consecutive exposures to an agent or agents that cause the disease, one innocent and one tortious, the position will depend upon which exposure came first in time.
+Where it was the tortious exposure, it is axiomatic that this will have contributed to causing the disease, even if it is not the sole cause.
+Where the innocent exposure came first, there may be an issue as to whether this was sufficient to trigger the disease or whether the subsequent, tortious, exposure contributed to the cause.
+I can see no reason in principle why the doubles the risk test should not be applied in such circumstances, but the court must be astute to see that the epidemiological evidence provides a really sound basis for determining the statistical probability of the cause or causes of the disease.
+McGhee may have been such a case.
+The facts were puzzling, for no other workman had ever contracted dermatitis at the defendants brick kiln, so one wonders what the basis was for finding that the lack of shower facilities was potentially causative.
+Had there been epidemiological evidence it seems unlikely that this would have demonstrated that the extra ten or fifteen minutes that, on the evidence, the pursuer took to cycle home doubled his risk of contracting dermatitis, or came anywhere near doing so.
+Where there are competing alternative, rather than cumulative, potential causes of a disease or injury, such as in Hotson, I can see no reason in principle why epidemiological evidence should not be used to show that one of the causes was more than twice as likely as all the others put together to have caused the disease or injury.
+Can the doubles the risk test be applied in mesothelioma cases?
+This question calls for consideration of the conundrum that I identified when considering the decisions in Fairchild and Barker.
+In the course of argument I put the conundrum to Mr Stuart Smith.
+Why, if it was possible to equate increasing exposure to increasing risk, could one not postulate that, on balance of probabilities, where one employer had caused over 50% of a victims exposure, that employer had caused the victims mesothelioma? Why could one not, by the same token, postulate that where over 50% of the victims exposure was not attributable to fault at all, on balance of probability, the victims mesothelioma had not been caused tortiously? In short, why was there any need to apply the Fairchild/Barker rule where epidemiological evidence enabled one to use statistics to determine causation on balance of probability?
+Mr Stuart Smith replied that this was a question which puzzled him also.
+He believed that the answer could be found in consideration given in earlier cases to a hypothetical injury caused by either a blue or a red taxi cab.
+This led to some inconsequential discussion as to the colours of the cabs involved.
+The example in question can be traced, via the speech of Lord Mackay in Hotson [1987] AC 750, 789 to the dissenting judgment of Brachtenbach J in Herskovits v Group Health Cooperative of Puget Sound (1983) 664 P 2d 474, a decision of the Supreme Court of Washington: Brachtenbach J dissented.
+He warned against the danger of using statistics as a basis on which to prove proximate cause and indicated that it was necessary at the minimum to produce evidence connecting the statistics to the facts of the case.
+He gave an interesting illustration of a town in which there were only two cab companies, one with three blue cabs and the other with one yellow cab.
+If a person was knocked down by a cab whose colour had not been observed it would be wrong to suggest that there was a 75 per cent chance that the victim was run down by a blue cab and that accordingly it was more probable than not that the cab that ran him down was blue and therefore that the company running the blue cabs would be responsible for negligence in the running down.
+He pointed out that before any inference that it was a blue cab would be appropriate further facts would be required as, for example, that a blue cab had been seen in the immediate vicinity at the time of the accident or that a blue cab had been found with a large dent in the very part of the cab which had struck the victim.
+This example is an extreme example of the fact that statistical evidence may be an inadequate basis upon which to found a finding of causation.
+Keeping to that example, it was not possible to postulate that the risk of being knocked down by a negligent driver of a taxi cab was proportional to the number of taxi cabs in the town.
+Much more significant would have been the care taken by the rival taxi firms in employing competent drivers, and the past accident record of the firms in question.
+Thus the first answer to the conundrum may be that, in the case of mesothelioma, epidemiological evidence alone has not been considered by the courts to be an adequate basis for making findings of causation: that so long as medical science is unable to demonstrate, as a matter of fact, the aetiology of mesothelioma, data relating incidence to exposure is not a satisfactory basis for making findings of causation.
+Not only is the adequacy of epidemiological evidence relevant to the weight to be attached to it.
+So is its reliability.
+A helpful description of the factors that can limit the reliability of epidemiological evidence is to be found in an article by C E Miller on Causation in personal injury: legal or epidemiological common sense? in 26 Legal Studies No 4, December 2006, pp 544 569.
+Deducing causation in relation to mesothelioma on the basis of epidemiological evidence requires a comparison between the statistical relationship between exposure and the incidence of the disease and the experience of the victim who has sustained the disease.
+A number of factors make this exercise particularly problematic.
+The first is the difficulty in collating sound epidemiological data.
+The second is the difficulty of obtaining reliable evidence as to the relevant experience of the victim.
+The third is uncertainty as to the adequacy of the epidemiological evidence that is available as a guide to causation.
+The epidemiological data that has been collated in relation to mesothelioma relates largely to the exposure of victims to asbestos dust.
+It must be gathered from the histories of those who, tragically, have succumbed to mesothelioma.
+Because of the very long latency of the disease and the limited time between the first experience of its symptoms and death, obtaining the necessary data is difficult.
+Most of the data relates to victims who were subjected to substantial occupational exposure to dust.
+This data has been extrapolated to cover victims who have had very light exposure, but there is no certainty that this extrapolation is reliable.
+The same difficulty arises in relation to obtaining details of the relevant experience of the particular victim.
+That difficulty is illustrated by the two appeals before the Court.
+The most significant inhibition on the use of epidemiological evidence to determine causation in cases of mesothelioma is uncertainty as to the adequacy of the data.
+The data is relied on as establishing that the risk of contracting mesothelioma is proportional to exposure to asbestos dust.
+It used to be thought that mesothelioma was probably triggered by a single asbestos fibre and that the cause of the disease could be attributed exclusively to that one fibre.
+Were that the case it would be reasonable to postulate that the risk of contracting the disease was proportional to the exposure.
+In the words of Lord Hoffmann in Barker at para 26, referring to the decision of Moses J at first instance: the more you are exposed, the more likely you are to get it, in the same way as the more you spin the roulette wheel, the more is a given number likely to come up.
+The single fibre theory has, however, been discredited.
+The amount of exposure does not necessarily tell the whole story as to the likely cause of the disease.
+There may well be a temporal element.
+The Peto Report also raised the possibility (but no more) of synergistic interaction between early and later exposures.
+Causation may involve a cumulative effect with later exposure contributing to causation initiated by an earlier exposure.
+Applying the conventional test of causation, the relevant question is, on balance of probability, which exposures in an individual case may have contributed to causing the disease? Epidemiology does not enable one to answer that question by considering simply the relative extent of the relevant exposures.
+The House of Lords was not, in Fairchild nor in Barker invited to consider the possibility that it might be possible in an appropriate case to demonstrate by epidemiological evidence that, on balance of probabilities, the mesothelioma had been caused by exposure that was not wrongful, or alternatively that such evidence might demonstrate that one particular employer had, on balance of probabilities, caused the disease.
+Had it been I do not believe that the House would have been persuaded that epidemiological evidence was sufficiently reliable to base findings as to causation upon it.
+I believe that the cumulative effect of the various factors that I have set out above justifies the adoption of the special rule of causation that the House of Lords applied in Fairchild and Barker.
+The justification for that rule may diminish or vanish as the aetiology of the disease is revealed by scientific research.
+Nor does the rule wholly displace a conventional approach to causation.
+Epidemiological data and medical science show that exposure once a cell has become malignant is not causative and thus exposure once that point is probably passed, can be discounted as a potential contributor to the disease.
+The possibility that mesothelioma may be caused as the result of the cumulative effect of exposure to asbestos dust provides a justification, even if it was not the reason, for restricting the Fairchild/Barker rule to cases where the same agent, or an agent acting in the same causative way, has caused the disease, for this possibility will not exist in respect of rival causes that do not act in the same causative way.
+I would add that even if one could postulate with confidence that the extent of the contribution of a defendant to the victims exposure to asbestos precisely reflected the likelihood that his breach of duty had caused the victims disease, there would still be justification for the application of the Fairchild rule where all the exposure was wrongful.
+Imagine four defendants each of whom had contributed 25% to the victims exposure so that there was a 25% likelihood in the case of each defendant that he had caused the disease.
+The considerations of fairness that had moved the House in Fairchild would justify holding each of the defendants liable, notwithstanding the impossibility of proving causation on balance of probability.
+Thus the conundrum is answered by saying that there are special features about mesothelioma, and the gaps in our knowledge in relation to it, that render it inappropriate to decide causation on epidemiological data as to exposure.
+So far as concerns apportionment between tortfeasors jointly liable for causing mesothelioma it is likely to be necessary to use epidemiological evidence faute de mieux.
+What constitutes a material increase in risk?
+Liability for mesothelioma falls on anyone who has materially increased the risk of the victim contracting the disease.
+What constitutes a material increase of risk? The parties were, I think, agreed that the insertion of the word material is intended to exclude an increase of risk that is so insignificant that the court will properly disregard it on the de minimis principle.
+Mr Stuart Smith submitted that there should be a test of what is de minimis, or immaterial, which can be applied in all cases.
+Exposure should be held immaterial if it did not at least double the environmental exposure to which the victim was subject.
+It does not seem to me that there is any justification for adopting the doubles the risk test as the bench mark of what constitutes a material increase of risk.
+Indeed, if one were to accept Mr Stuart Smiths argument that the doubles the risk test establishes causation, his de minimis argument would amount to saying that no exposure is material for the purpose of the Fairchild/Barker test unless on balance of probability it was causative of the mesothelioma.
+This cannot be right.
+I doubt whether it is ever possible to define, in quantitative terms, what for the purposes of the application of any principle of law, is de minimis.
+This must be a question for the judge on the facts of the particular case.
+In the case of mesothelioma, a stage must be reached at which, even allowing for the possibility that exposure to asbestos can have a cumulative effect, a particular exposure is too insignificant to be taken into account, having regard to the overall exposure that has taken place.
+The question is whether that is the position in this case.
+The result in this case.
+Despite Judge Mains heroic endeavours, the nature of the exercise on which he embarked must raise doubts over his precise finding that Greifs wrongful exposure to asbestos dust increased the environmental exposure to which Mrs Costello was subject by 18%.
+Having made that finding, Judge Main wrongly applied the doubles the risk test rather than the Fairchild/Barker test.
+He did not expressly consider whether the exposure to which Greif wrongly subjected Mrs Costello was so insignificant that it could be disregarded as de minimis.
+None the less, had he thought it de minimis, he might well have said so.
+He did describe the very small quantities of fibres that might have been on furniture in Greifs offices as of statistically insignificant effect and de minimis: para 50.
+I do not think that Judge Main would have dismissed the addition that Greifs wrongful exposure made to the risk that Mrs Costello would contract mesothelioma as statistically insignificant or de minimis.
+If one assumes, as is likely, that Mrs Costellos disease was asbestos induced, it is plain that a very low level of exposure sufficed to cause the disease.
+This accords with the expert evidence that there is no known lower threshold of the exposure that is capable of causing mesothelioma.
+No one could reasonably conclude that there was no significant possibility that the incremental exposure to which Greif subjected Mrs Costello was instrumental in causing her to contract the disease.
+I am in no doubt that the wrongful exposure to which she was subjected materially increased her risk of contracting mesothelioma.
+The reality is that, in the current state of knowledge about the disease, the only circumstances in which a court will be able to conclude that wrongful exposure of a mesothelioma victim to asbestos dust did not materially increase the victims risk of contracting the disease will be where that exposure was insignificant compared to the exposure from other sources.
+I note that in Rolls Royce Industrial Power (India) Ltd v Cox [2007] EWCA Civ 1189 counsel for the employer conceded that exposure to asbestos dust for a period of one week would not be de minimis.
+For these reasons I would dismiss the appeal in Greif.
+ANNEX A.
+In the Trigger litigation Rix LJ set out the following extract from the judgment of Longmore LJ in Bolton Metropolitan Borough Council v Municipal Mutual Insurance Ltd [2006 EWCA Civ 50, [2006] 1 WLR 1492: 7 There are three forms of asbestos: brown (amosite), blue (crocidolite) and white (chrysotile).
+Their fibres have different bio persistence: 20 years after exposure to fibres about half the inhaled amosite fibres remain in the body, a smaller proportion of the crocidolite fibres remains and, relatively, few chrysotile fibres remain. 8 The human body is composed of cells of various types.
+Of the fibres which reach the lungs many are engulfed by macrophages (scavenger cells).
+The macrophages may then be expelled by the mucosiliary process or may die within the lungs.
+All cells can and do die for various reasons, but cells are in communication with each other and the death of one can cause another to divide so, with some exceptions such as men losing their hair with age, the number of cells remains approximately the same throughout a person's life.
+When macrophages die in the lungs they release various chemicals, some of which attract neutrophils, another type of cell, which can engulf fibres.
+A different mechanism which destroys fibres in the lungs is that they are dissolved in tissue fluids.
+Another mechanism, by which the body protects itself, is that some fibres become coated by proteinaceous material containing iron which, it is believed, renders them less likely to produce fibrosis. 9 The division of cells in human tissue is important for understanding how mesothelioma occurs.
+Each cell in the body contains all the genetic information necessary for the construction and functioning of the entire body.
+This information is contained in the form of DNA, a molecule consisting of two intertwining strands.
+The different structure and function of the various types of cell in the body occurs because in each cell only some of the genes contained in the DNA are active and in different cells different genes are active.
+The coded information in a DNA molecule is in the form of about 3,000,000,000 base pairs.
+Each pair consists of two collections of atoms called nucleotides.
+There is one half of each pair in each of the two intertwining strands.
+When cell division occurs the strands unravel and two daughter double helices are created.
+Normally the daughters are identical with each other but sometimes they are not.
+Dr Rudd uses the word mutation for an imperfect copy.
+This word mutation thus means a thing a cell and not a process, and is not a synonym of change; for change Dr Rudd uses the term generic alteration.
+I shall adopt this usage.
+The word mutation does not have any derogatory connotations.
+A mutation is different from, but not necessarily worse than, the cell from which it is derived or otherwise undesirable.
+The body contains what can be described as a repair mechanism which sometimes corrects the discrepancy between a daughter and its parent.
+This repair mechanism is vital to normal health, and people whose repair system lacks some components (a very rare condition) will die early, often of cancer.
+Sometimes, however, a perfectly normal repair and correction mechanism fails to correct a mutation.
+Such failure can lead to any of three possibilities.
+First, the mutation may be unable to survive and die.
+Secondly it may be better fitted for its purpose than the cell from which it is derived, and this is the cause of evolution.
+As Dr Moore Gillon put it Without the normal process of imperfect copying, mankind (and indeed all other species) would not have emerged. 10 It is the third possibility with which this case is concerned.
+A mutation which does not die, which is not repaired and which does not perform its purpose better than the cell from which it was derived may itself divide, and the daughter cells or (to continue the parental analogy) the grand daughter or more distant descendants may in turn die, be repaired or be mutations from the cell from which they are derived.
+Eventually there may be a mutation which is malignant, i e a cell which divides in an uncontrolled manner, as opposed to maintaining the normal balance between cells dying and cells dividing.
+It normally takes a heredity of six or seven genetic alterations before a malignant cell occurs.
+The body has natural killer cells which, as their name indicates, can target and destroy mutations, possibly even after they have become malignant.
+A tumour is a growth consisting of a number of cells dividing in that uncontrolled manner.
+Mesothelioma is a tumour in the pleura.
+B. Rix LJ then summarised the findings of Burton J in the Trigger litigation, which brought the findings of Longmore LJ up to date: 11 Asbestos fibres in the pleura increase the likelihood of genetic mutation.
+It is now thought likely that, if there is a series of genetic alterations which ends with a malignant cell in the pleura, fibres will have acted in causing several of those genetic alterations, rather than just one genetic alteration.
+However the final genetic alteration which results in a malignant cell is not necessarily caused by fibres directly.
+Fibres may also inhibit the activity of natural killer cells.
+Pre cancerous genetic alterations in cells do not give rise to any symptoms or signs.
+They cannot be detected by any routine clinical or radiological examination.
+It would be possible to detect them by examining in a laboratory tissue taken from a part of the body containing cells which have become genetically modified, but the exercise would be pointless because pre cancerous genetic alterations do not necessarily or even usually lead to mesothelioma. 12 It is furthermore important to note that there may be a long time lapse not only between exposure and the first formation of a malignant cell but that there may be a similarly lengthy lapse of time between first malignancy and the onset of noticeable symptoms such as breathlessness. 50.
+The judge heard evidence from five internationally recognised experts in the field: Dr Rudd and Dr Moore Gillon, who have between them given evidence in most if not all of the cases involving mesothelioma in recent years including Fairchild and Bolton itself; Professor Geddes, on whose pioneering work the first two experts have based their own theories (see his crucial 1979 paper concerning the rate of tumour growth, published in volume 73 of the British Journal of Diseases of the Chest, The Natural History of Lung Cancer: a Review based on Rates of Tumour Growth (the Geddes article)); and Professor Phillips of the Institute of Cancer Research and Professor Heintz of the Vermont Cancer Centre.
+The last two are biochemists, the first three are respiratory consultants.
+The judge observed that the evidence of the biochemistry experts is a new feature of such litigation. 51.
+On the basis of this expert evidence, the judge remarked on two matters which were common ground between the parties.
+One is that it is the exposure to quantities of fibres which is causative of mesothelioma, and the risk increases with the dosage.
+This was recognised already in Fairchild (see Lord Bingham at para 7; and Lord Rodger at para 122, where the latter observed: the greater the number of asbestos fibres taken into the body, the greater are the chances that one of them will trigger a malignant transformation).
+The second matter is that once the mesothelioma tumour is present and assured of growth (ie has passed the stage where a malignant mutation may die off), further asbestos exposure and indeed further asbestos fibres in the body can make no difference and are not causative. 52.
+Burton J also described the unknowability and indescribability of much of the pathogenesis of mesothelioma as being common ground (at para 30).
+Subject to that caution, the judge made the following findings about the disease.
+He described asbestos fibre as a complete carcinogen, ie no other agent or co agent is required to cause the ultimate malignancy (at para 130).
+Unlike a normal cancer of spherical or similar shape which sooner or later can be seen on a scan or x ray, the mesothelioma tumour grows along the surface of the lungs rather like a fungus and is thus practically undetectable, and only becomes diagnosable when the symptoms of impaired breathing bring it to the patient's and his doctor's attention.
+As the details of actions 1 3 illustrate, that is only shortly before death.
+The average time between manifestation/diagnosis and death is some fourteen months. 53.
+The judge described the normal process of cell mutations in healthy bodies and lungs.
+Even in a person who has not been exposed to asbestos as part of his occupation, the lungs will typically contain millions of asbestos fibres, albeit not the hundreds of millions to be found in the occupationally exposed and with far less proportionately of the more dangerous blue and brown asbestos varieties.
+He said: 108The mesothelial cells, like all cells in the body, are constantly dividing: Dr Rudd told us that there are 10 trillion cells in the body and 50 billion are replicated every day.
+Cell division, or mitosis, by which the cell divides, duplicates its chromosomes and passes on a complete set to each of its "daughters", is the norm; but there can be mutations again Dr Rudd told us that incorrect copying can take place in one in a million cell divisions and thus possibly 5,000 times per day in the human body, or every 17 seconds.
+The body's repair mechanisms are quick to correct and abort the mutations, but even if there are mutations there are four possible consequences.
+The incorrect copy may be unable to survive, and die; the mutation can make no difference; the mutation can positively improve the cell hence evolution; or the mutated cell can survive and can itself divide, passing on the genetic alterations, eventually after many generations and with further mutations creating a malignant cell. 54.
+What then makes the difference between a normal and a diseased process? The judge continued: 109.
+There will or may be thousands of mutations, only one of which may have any deleterious effect on successive mitosis.
+But, the experts gave evidence that there are six or seven genetic alterations which are required, not necessarily occurring in the same or any particular order, which, when they are all in place, can lead to a malignant cell.
+The characteristics of a malignant cell are (i) self sufficiency of growth signals (ii) insensitivity to growth inhibitory signals (iii) evasion of programmed cell death (apoptosis) (iv) limitless replicative potential (v) the ability to invade tissues and to metastasise ie to transfer to other parts of the body (vi) the availability of its own blood supply obtained by a process which is called angiogenesis 111.
+Once a cell has acquired what Dr Rudd calls a full house of the necessary 6/7 mutations, and has evaded all the bodily defences (described by Dr Rudd as full house plus), then it can be described as a malignant cell, and can and does begin a period of uncontrolled by multiplication.
+Notwithstanding what Dr Rudd has called evasion of the bodily defences, Professors Phillips and Heintz [the biochemists] conclude that many full house cells with malignant potential may fail to grow into tumours.
+It appears to be common ground, at any rate so far as the biochemists are concerned, that such cell or cells at this stage are still at risk from natural killer cells, although they apparently develop a method of switching off the signals which summon the natural killer cells or put them on notice.
+There is also, despite the characteristic of limitless replication, the possibility or probability, of periods of dormancy.
+Professor Phillips points out that the norm of 40 years from exposure to diagnosability growth suggests either that the mutation period lasts a long time or that there are periods of tumour dormancy (or both). 55.
+The judge then described the growth of a malignant cell towards the status of a mesothelioma tumour, premised on the figures to be derived from the Geddes article concerning the more normal type of spherical tumour.
+Professor Geddes found that the average rate of doubling of cells was 102 days (albeit that was a speculative average, which could vary between 45 and 130 days).
+It is only at a tumour size of 106 cells (1 million cells) that it becomes unlikely for the bodily defences, still until then available, to be able to neutralise it.
+Angiogenesis then occurs at somewhere between 106 and 109 (1 billion cells).
+Symptoms of breathlessness will begin to be experienced when the tumour is between 109 and 1012 (1 trillion cells).
+In the biochemists' view, angiogenesis occurred about 5 years or so before death.
+The Peto and Rake study led the authors to the following conclusions: 1.
+Mesothelioma risk is determined largely by asbestos exposure before age 30, and ranges from a lifetime risk of 1 in 17 for ten or more years of carpentry before age 30 to less than 1 in 1,000 in apparently unexposed men and women.
+Our results suggest that the predicted total of 90,000 mesotheliomas in Britain between 1970 and 2050 will include approximately 15,000 carpenters. 2.
+The risk of lung cancer caused by asbestos is likely to be of the same order as the mesothelioma risk.
+This would imply that more than 1 in 10 of British carpenters born in the 1940s with more than 10 years of employment in carpentry before age 30 will die of a cancer caused by asbestos. 3.
+Asbestos exposure was widespread, with 65% of male and 23% of female controls having worked in occupations that were classified as medium or higher risk. 4.
+Britain was the largest importer of amosite (brown asbestos), and there is strong although indirect evidence that this was a major cause of the uniquely high mesothelioma rate.
+The US imported far less amosite than Britain but used similar amounts of chrysotile (white asbestos) and more crocidolite (blue asbestos), and US mesothelioma death rates in middle age are now 3 to 5 times less than British rates.
+British carpenters frequently worked with asbestos insulation board containing amosite. 5.
+We found no evidence of increased risk associated with non industrial workplaces or those that were classified as low risk, including motor mechanics and workers handling gaskets and mats that may have contained asbestos. 6.
+The only potential non occupational exposure associated with increased risk was living with an exposed worker. 7.
+The increasing trend in female rates in Britain and a comparison between British and US female rates both suggest that a substantial proportion of mesotheliomas with no known occupational or domestic exposure were probably caused by environmental asbestos exposure.
+The sources of this presumably included construction, building maintenance and industrial activities but may also include release of asbestos from buildings due to normal occupation and weathering.
+LORD RODGER
+Defendants whose breaches of duty expose someone to asbestos and so materially increase the risk that he will develop mesothelioma are liable jointly and severally for the damage which he suffers if he does in fact develop mesothelioma.
+The fundamental question in these two appeals is whether this special rule the so called Fairchild exception, as it applies to mesothelioma applies in cases where only one defendant is proved to have exposed the victim to asbestos, but she was also at risk of developing the disease from low level exposure to asbestos in the general atmosphere (environmental exposure).
+I would hold that the special rule does apply in such cases.
+Karen Sienkiewicz v Greif (UK) Ltd
+In these proceedings the claimant, 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.
+From 1966 until 1984 Mrs Costello worked for the defendants predecessors in title at their factory premises in Ellesmere Port where they manufactured steel drums.
+The process involved the release of asbestos dust into the factory atmosphere.
+Although Mrs Costello worked mostly in an office, she spent time in areas of the factory which were, from time to time, contaminated with asbestos.
+The trial judge held that Mrs Costellos exposure to asbestos on the defendants premises was very light and that it would have been through the inhalation of the general factory atmosphere, as she moved about.
+The judge also held that this exposure was in breach of the relevant legal duties owed by the defendants to Mrs Costello.
+It was common ground that, like anyone else, Mrs Costello would have been subject to environmental exposure to low levels of asbestos in the atmosphere in the areas where she lived.
+The trial judge found that the defendants exposure of Mrs Costello to asbestos over her working life at their premises increased her background risk (of contracting mesothelioma) from 24 cases per million to 28.39 cases per million, an increase of risk of 18%.
+Putting the point slightly more precisely, the environmental risk of contracting mesothelioma was 24 cases per million; exposure of the level of the occupational exposure in Mrs Costellos case would increase the risk of contracting mesothelioma to 28.39 cases per million an increase of 18%.
+The trial judge concluded that the claimant had failed to establish that any exposure by the defendants had caused Mrs Costellos mesothelioma because once there is only one occupational cause for the mesothelioma the claimant has to prove that it is the likely cause.
+On this basis he held that the special rule of law laid down by the House of Lords in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 did not apply and that the claimant could therefore not succeed on the basis that, on the balance of probability, Mrs Costellos exposure to asbestos in the course of her employment with the defendants had materially increased the risk that she would contract mesothelioma.
+She could only succeed by proving, on the balance of probability, that the defendants breach of duty had caused Mrs Costellos mesothelioma.
+The Court of Appeal (Lord Clarke of Stone cum Ebony, Scott Baker and Smith LJJ) allowed the claimants appeal: Sienkiewicz v Greif (UK) Ltd [2009] EWCA 1159; [2010] QB 370.
+They held that the decision of the House of Lords in Fairchild applied.
+The defendants breach of duty had materially increased the risk of Mrs Costello developing mesothelioma.
+So they were liable.
+The defendants appeal against that decision.
+Although the Court of Appeal ultimately held that the rule in Fairchild applied to mesothelioma cases of this kind because of section 3 of the Compensation Act 2006 (the 2006 Act), in the course of her judgment, [2010] QB 370, 379, at para 23, Smith LJ made a very general statement about the approach which courts should adopt to issues of causation: In my view, it must now be taken that, saving the expression of a different view by the Supreme Court, in a case of multiple potential causes, a claimant can demonstrate causation by showing that the tortious exposure has at least doubled the risk arising from the non tortious cause or causes.
+An important issue in the present appeals is whether this guidance is sound.
+Willmore v Knowsley Metropolitan Borough Council
+In these proceedings the claimant is Mr Barr Willmore.
+He is the husband, and administrator of the estate, of the late Mrs Dianne Willmore who died of mesothelioma on 15 October 2009 at the age of 49.
+Prior to her death, Mrs Willmore had raised proceedings for damages for her illness against Knowsley Metropolitan Borough Council (the Council).
+After her condition was diagnosed, Mrs Willmore made a number of different allegations as to her possible exposure to asbestos.
+Initially she alleged that she had been exposed to asbestos dust in the course of her employment with the Army & Navy Stores in Liverpool between 1979 and 1981.
+But when she raised her proceedings against the Council in February 2008 she alleged that she had been exposed to asbestos when some prefabricated houses near her childhood home in Huyton were demolished.
+She also alleged that she had been exposed to asbestos while a pupil at her primary school run by the Council.
+On 14 February 2008, however, Mrs Willmore read an article in the Liverpool Echo referring to a report prepared by the Council which identified the presence of asbestos in a number of secondary schools, including Bowring Comprehensive, where she had been a pupil.
+On 27 November 2008 Mrs Willmore amended the particulars of claim to allege, in essence, that when she first attended Bowring Comprehensive, the construction of the school had not been completed and she and other pupils had been exposed to asbestos as a result of workmen using materials containing asbestos.
+She also alleged that she had been exposed to asbestos as a result of other disturbance of asbestos materials at the school.
+She subsequently abandoned all her allegations of exposure to asbestos except those relating to Bowring Comprehensive.
+Following a trial in July 2009, Nicol J found that, while a pupil at Bowring Comprehensive, Mrs Willmore had been exposed to the type of asbestos known as amosite in three separate ways: (1) as a result of work involving the removal, handling and disturbance of ceiling tiles in a corridor along which pupils, including Mrs Willmore, passed; (2) as a result of pupils misbehaviour, which caused ceiling tiles containing asbestos to be damaged or broken; (3) as a result of asbestos ceiling tiles, including broken tiles, being stored in a girls lavatory which had been used by Mrs Willmore on many occasions.
+The judge held that each of these exposures to asbestos fibres had materially increased the risk of Mrs Willmore contracting mesothelioma later in life.
+In so concluding, he found that none of these exposures was de minimis.
+He awarded Mrs Willmore the agreed gross sum of 240,000 as damages.
+The Council appealed to the Court of Appeal.
+The Court of Appeal held, [2009] EWCA Civ 1211, that the judge had been wrong to hold that she had been exposed to asbestos as a result of pupils misbehaviour.
+But they confirmed that the judge had been entitled to find that Mrs Willmore had suffered significant exposure to asbestos from the other two sources.
+On that basis the Court upheld his judgment and his award of damages.
+The Council now appeal to this Court.
+Since the lower courts applied the Fairchild exception, obviously the same point as to its application in this type of case arises.
+But the Council also challenge the judges findings in fact.
+The Defendants Legal Argument
+As already indicated, the feature of both the cases under appeal to which the defendants attach importance is that the proceedings are directed against only one defendant.
+In this respect they are different from the leading authorities, Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 and Barker v Corus UK Ltd [2006] 2 AC 572, in both of which the claimants alleged that the victims had been exposed to asbestos as a result of a breach of duty by more than one employer.
+In Barker, however, one of the three material exposures had occurred when Mr Barker was working as a self employed plasterer.
+On behalf of the defendants in both of the appeals, Mr Stuart Smith QC characterised the present cases as single exposure cases: the claimants alleged only one possible tortious source for the exposure.
+In both cases the exposure could be regarded as slight.
+In addition, the victims had been exposed to asbestos in the general atmosphere in the areas where they lived.
+Counsel renewed the argument that in such cases the special rule in Fairchild did not apply and that, in order to establish liability, the claimant required to prove, on the balance of probability, that the victims mesothelioma is to be attributed to her exposure to asbestos as a result of the defendants breach of duty.
+The claimant could do this by leading epidemiological evidence to show that the exposure by the defendant had doubled the risk of the victim developing mesothelioma.
+This was essentially the argument which the trial judge had accepted in Sienkiewicz: the claimant failed because the defendants breach of duty had merely increased the risk of her developing mesothelioma by 18% far short of doubling the environmental risk.
+Section 3 of the 2006 Act
+In the Court of Appeal in Sienkiewicz [2010] QB 370, 379, para 26, Smith LJ saw considerable force in the view that in Fairchild and Barker the House of Lords had not been considering a single exposure case and that, if they had done so, they would not have included such a case within the scope of the rule.
+But she held that such speculation was now pointless since Parliament had intervened by enacting section 3 of the 2006 Act, which had the effect that the common law simpliciter no longer governed claims for damages in mesothelioma cases.
+In this regard Smith LJ observed, [2010] QB 370, 381 382, at paras 34 and 35: 34.
+However, in my view, Parliament used clear words which provide that, in all mesothelioma cases, a claimant can take advantage of section 3(2) provided that he or she can satisfy the four conditions in section 3(1) and the fourth condition can, in my judgment, be satisfied by proof of causation by reference to a material increase in risk. 35.
+I conclude therefore that, in a mesothelioma case, it is not open to a defendant to put the claimant to proof of causation by reference to a twofold increase in risk.
+The judge was therefore wrong to require the claimant in this case to attempt to cross that hurdle.
+If he had applied the correct test on causation, namely whether or not the tortious exposure had materially increased the risk, the answer was plainly yes.
+In my view, the claimant should have succeeded and the appeal must be allowed.
+Scott Baker LJ agreed with Smith LJ, as did Lord Clarke of Stone cum Ebony.
+Lord Clarke considered, [2010] QB 370, 387, at para 57, that it was plain from the terms of section 3 and from the analysis of the common law that the respondent was liable for the mesothelioma which caused Mrs Costellos death.
+Subsection (1) of section 3 of the 2006 Act describes the circumstances in which the section is to apply in actions of damages for mesothelioma.
+According to subsection (1)(d), it applies where the responsible person is liable in tort, by virtue of the exposure mentioned in paragraph (a) in connection with damage caused to the victim by the disease (whether by reason of having materially increased a risk or for any other reason).
+Smith LJ appears to have considered that, by referring to the defendant being held liable in tort by reason of having materially increased a risk, Parliament had precluded any argument that, in particular circumstances, a defendant could not be held liable on that basis.
+I would not read the provision in that way.
+Section 3 was not concerned with prescribing the basis for defendants being held responsible for claimants mesothelioma.
+Rather, its purpose was to reverse the decision of the House of Lords in Barker v Corus UK Ltd [2006] 2 AC 572.
+The House had held that, where more than one defendant had materially increased the risk that an employee would contract mesothelioma, liability was to be attributed, not jointly and severally, but according to each defendants degree of contribution to the risk.
+In section 3 Parliament laid down that, on the contrary, where a defendant was held liable in a mesothelioma case, he was to be liable for the whole of the damage caused to the victim and, if anyone else was held responsible, they were to be liable jointly and severally.
+The reference to the defendant having been held liable by reason of having materially increased a risk is simply designed to show that the statutory rule applies in cases where the defendant is held liable (as in Barker) on the basis of materially increasing the risk to the claimant.
+But the concluding words, or for any other reason, show that Parliament envisages that a defendant might be held liable on some other basis.
+In that eventuality also he is to be liable for the whole of the damage and, if anyone else is held responsible, they are to be liable jointly and severally.
+It follows that section 3 of the 2006 Act does not shut out the appellants argument that in a single exposure case a defendant should not be held liable unless the claimant proves on the balance of probability that his breach of duty caused the victims mesothelioma.
+That argument and the more particular argument, that the claimant must show that the defendant more than doubled the risk of the victim developing mesothelioma, have therefore to be addressed on their merits.
+The Rock of Uncertainty
+The discussion and decision in Fairchild proceeded on the basis described by Lord Bingham, [2003] 1 AC 32, 43, at para 7: There is no way of identifying, even on a balance of probabilities, the source of the fibre or fibres which initiated the genetic process which culminated in the malignant tumour.
+This was what he described as the rock of uncertainty: [2003] 1 AC 32, 43G H.
+On behalf of the appellants, Mr Stuart Smith accepted that this remains the position in cases where a victim has been exposed to asbestos in the course of his employment with a number of employers.
+The same would presumably apply if the victim had been exposed to asbestos, say, when visiting a number of cinemas run by different companies.
+But he submitted that, where the claimant alleges that only one defendant wrongfully exposed her to asbestos and environmental exposure is also a possible source of the asbestos which affected her, the claimant must prove on the balance of probability that her disease was caused by the defendant rather than by environmental exposure.
+In Fairchild, as can be seen from Lord Binghams speech, at p 40, para 2, it was common ground that any cause of [the claimants] mesothelioma other than the inhalation of asbestos dust at work can be effectively discounted (emphasis added).
+At the time, some commentators indeed found this surprising, since exposure can occur in a variety of ways.
+Most obviously, perhaps, a factory may pollute the surrounding area and lead to the residents inhaling asbestos fibres in the atmosphere.
+But fibres are actually widespread in the atmosphere throughout most of the country.
+One European study suggested that one person in seven shows lung damage of a kind caused by exposure to asbestos.
+See the examples in Jane Stapleton, Lords aleaping evidentiary gaps, (2002) 10 Torts Law Journal 276, 277 279.
+But, for some reason, only certain people develop mesothelioma as a result of being exposed to asbestos.
+The issue in the present appeals arises because both parties accept that Mrs Costello and Mrs Willmore, who did develop mesothelioma, might have developed it as a result of being exposed to asbestos in the general atmosphere.
+At first sight it is somewhat surprising that the defendants should submit that in these cases the claimant must prove, on the balance of probability, that the defendants breach of duty caused her illness, since Fairchild proceeded on the basis that there is no way of identifying, on the balance of probability, the source of the fibre or fibres which initiated the genetic process that culminated in the victims malignant tumour.
+Medical science has not advanced significantly in this respect in the intervening eight years.
+So counsels argument is and must be that, in a case where the only possible source of the fibre or fibres which caused the disease is either environmental exposure to asbestos or exposure by the defendant, a claimant could always have proved, on the balance of probability, that the defendant was the source of the relevant fibre or fibres by leading appropriate epidemiological evidence to show that the exposure by the defendant more than doubled the background risk of the victim developing mesothelioma.
+So the Fairchild exception would never have applied.
+Take Sienkiewicz as an example.
+The defendants argue that the claim fails since, on the basis of the expert evidence, the judge found that the exposure due to their breach of duty increased Mrs Costellos risk of developing mesothelioma by only 18%.
+By contrast, it is said, if the expert evidence had shown that their exposure had doubled the background risk, Mrs Costello would have proved that, on the balance of probability, her mesothelioma had been caused by the defendants breach of duty rather than by any environmental exposure.
+In that event the claim would have succeeded.
+There is no rock of uncertainty and so no room for the Fairchild exception.
+By applying Fairchild, the Court of Appeal had erred in law and the appeal should therefore be allowed.
+Unpacking the Defendants Legal Argument
+The defendants argument appears simple, but it would actually involve a major change in the law.
+Usually, in English or Scots law, a court awards a claimant or pursuer damages for his injuries only if the judge is satisfied, on the balance of probability, that the wrongful act of the defendant or defender actually caused, or materially contributed to, his injury.
+Unless he proves this, his claim will fail.
+In the case of a disease like mesothelioma the claimant will be able to prove on the balance of probability that he is suffering from mesothelioma and that he has suffered loss as a result.
+He may also be able to prove, on the balance of probability, that a defendant or a number of defendants negligently exposed him to asbestos in the course of his employment with them, or while as in Mrs Willmores case she was a pupil in a school run by the Council.
+What, however, the claimant will be quite unable to prove, on the balance of probability, in the present state of medical knowledge, is that he developed mesothelioma as a result of inhaling any particular fibre or fibres and that, therefore, a particular defendant was responsible for exposing him to the fibre or fibres that caused his illness.
+Moreover, medical experts are no more able to tell whether the fibre or fibres which triggered the claimants mesothelioma came from the general atmosphere than they can tell whether they came from exposure during the claimants work with one or other of a number of employers.
+Faced with the problem that, in the present state of medical science, a claimant can never prove his case to the standard that the law usually requires, a legal system may react in a variety of ways.
+It may simply adhere to its usual stance and say that, since the claimant has not proved on the balance of probability that the defendant actually caused his disease, the claim must fail.
+That was, in effect, what the Court of Appeal decided in Fairchild v Glenhaven Funeral Services Ltd [2002] 1 WLR 1052.
+Alternatively, if that approach seems to be unduly harsh on victims, a system may hold that, if the claimant proves on the balance of probability that the defendants breach of duty has exposed him to asbestos, an evidential burden falls on the defendant to show that this exposure did not play any part in the claimants illness.
+Menne v Celotex Corp 861 F 2d 1453 (10 Cir 1988) is a case in point.
+Another possibility would be that a system would choose to hold a defendant liable because his breach of duty doubled the risk that his employee would develop mesothelioma.
+The decision of the Supreme Court of Texas in Merrell Dow Pharmaceuticals Inc v Havner (1997) 953 SW 2d 706 is an example of that approach being carefully applied in relation to proof that a mothers consumption of a drug caused a birth defect in her baby.
+As I point out at para 154 below, the court was conscious that it was deliberately applying a special rule to deal with the particular evidential difficulties facing plaintiffs in that kind of case.
+Or else a system may adopt a (different) rule to the effect that, if the claimant proves, on the balance of probability, that the defendant materially increased the risk that he would develop mesothelioma, then the defendant is to be held to have contributed materially to the development of the claimants illness.
+That is what the House of Lords appeared to do in Fairchild.
+In Barker v Corus UK Ltd [2006] 2 AC 572, however, the approach in Fairchild was refined: it was now said that a defendant was liable simply on the basis that his breach of duty had materially increased the risk that his employee would contract mesothelioma and the employee had done so.
+The response of English law to the problem posed by the rock of uncertainty in mesothelioma cases is therefore to be found in the combination of the common law, as laid down in Fairchild and Barker, and section 3 of the 2006 Act.
+Defendants whose breaches of duty materially increase the risk that the victim will develop mesothelioma are liable jointly and severally for the damage which the victim suffers if he does in fact develop mesothelioma.
+This is the current version of the Fairchild exception, as it applies in cases of mesothelioma.
+Of course, the Fairchild exception was created only because of the present state of medical knowledge.
+If the day ever dawns when medical science can identify which fibre or fibres led to the malignant mutation and the source from which that fibre or those fibres came, then the problem which gave rise to the exception will have ceased to exist.
+At that point, by leading the appropriate medical evidence, claimants will be able to prove, on the balance of probability, that a particular defendant or particular defendants were responsible.
+So the Fairchild exception will no longer be needed.
+But, unless and until that time comes, the rock of uncertainty which prompted the creation of the Fairchild exception will remain.
+Proof of a Fact and Proof of a Probability
+Although a claimant cannot prove what happened, in any given case his illness has a determinate cause.
+In other words, his mesothelioma was actually caused by a particular fibre or fibres and so a particular defendant either did or did not materially contribute to his contraction of the disease.
+Whether a defendant did so is a matter of fact, but one which, in the present state of medical science, we can never know.
+In Hotson v East Berkshire Area Health Authority [1987] AC 750 the plaintiff fell from a tree and sustained an acute traumatic fracture of the left femoral epiphysis.
+He was taken to hospital, but his injury was not correctly diagnosed or treated for five days.
+In the event, he suffered avascular necrosis of the epiphysis, involving disability of the hip joint and the virtual certainty that he would later develop osteoarthritis.
+The health authority admitted negligence.
+The trial judge, Simon Brown J, found that, even if the hospital had diagnosed the injury and treated the plaintiff promptly, there was a 75% chance that the necrosis would still have developed.
+He held that the plaintiff was entitled to damages for the loss of the 25% chance that he would have made a full recovery if treated promptly: [1985] 1 WLR 1036.
+The Court of Appeal upheld the trial judge: [1987] AC 750.
+The House of Lords allowed the health authoritys appeal.
+The House of Lords emphasised that what had happened to the plaintiff by the time he reached hospital was a matter of fact albeit one as to which there was no direct evidence and as to which the medical experts who gave evidence were divided.
+As a matter of fact, by the time he reached hospital, the plaintiff either did or did not have sufficient intact blood vessels to keep the affected epiphysis alive.
+In the words of Lord Mackay of Clashfern, [1987] AC 750, 785A B, on that matter, having regard to all the evidence, including the conflicting medical evidence, the trial judge took the view that it was more probable than not that insufficient vessels had been left intact by the fall to maintain an adequate blood supply to the epiphysis .
+Lord Mackay went on to say, at p 785C E: It is not, in my opinion, correct to say that on arrival at the hospital he had a 25 per cent chance of recovery.
+If insufficient blood vessels were left intact by the fall he had no prospect of avoiding complete avascular necrosis whereas if sufficient blood vessels were left intact on the judges findings no further damage to the blood supply would have resulted if he had been given immediate treatment, and he would not have suffered the avascular necrosis.
+In Hotson therefore not only was the plaintiffs condition by the time he reached hospital a matter of fact, but it was one which, the House held, the trial judge had been able to determine, on the balance of probability: insufficient vessels were left intact to maintain an adequate blood supply to maintain the epiphysis.
+Here, by contrast, although as a matter of fact, for instance, the defendants exposure of Mrs Costello to asbestos dust either did or did not materially contribute to her contraction of the disease, in the present state of medical science we can never know and the claimant can never prove whether it did or did not.
+Lord Hoffmann made the same point in Gregg v Scott [2005] 2 AC 176, 196, at para 79, when he said that, for the law Everything has a determinate cause, even if we do not know what it is.
+The blood starved hip joint in Hotsons case, the blindness in Wilshers case, the mesothelioma in Fairchilds case; each had its cause and it was for the plaintiff to prove that it was an act or omission for which the defendant was responsible.
+The narrow terms of the exception made to this principle in Fairchilds case only serves to emphasise the strength of the rule.
+The fact that proof is rendered difficult or impossible because no examination was made at the time, as in Hotsons case, or because medical science cannot provide the answer, as in Wilshers case, makes no difference.
+There is no inherent uncertainty about what caused something to happen in the past or about whether something which happened in the past will cause something to happen in the future.
+Everything is determined by causality.
+What we lack is knowledge and the law deals with lack of knowledge by the concept of the burden of proof.
+It appears that in the House of Lords in Hotson there was some argument about the use of statistical evidence, but most members of the appellate committee did not find it necessary to deal with it.
+Lord Mackay did address the issue, however while making it clear that his comments were obiter.
+At the hearing of the present appeals counsel made some reference to Lord Mackays comments and Lord Phillips has referred to them in his judgment.
+It may therefore be worthwhile to look a little more closely at what Lord Mackay said in order to see whether it has any application in the present case.
+Lord Mackay put forward a hypothetical example loosely based on McGhee v National Coal Board [1973] 1 WLR 1.
+He supposed a case in which an employer had negligently failed to provide washing facilities at the end of their shift for men who had been exposed to brick dust in the course of their work.
+One of the men developed dermatitis and sued his employer.
+He led epidemiological evidence which showed that of 100 men working in the same conditions 30 would develop dermatitis even though they had showered after their shift.
+But the evidence also indicated that, if the men did not shower, 70 would develop dermatitis.
+Lord Mackay observed, [1987] AC 750, 786D E: Assuming nothing more were known about the matter than that, the decision of this House [in the McGhee case] may be taken as holding that in the circumstances of that case it was reasonable to infer that there was a relationship between contraction of dermatitis in these conditions and the absence of washing facilities and therefore it was reasonable to hold that absence of washing facilities was likely to have made a material contribution to the causation of the dermatitis.
+Two comments are appropriate.
+First, the decision of the House of Lords in McGhee actually goes much further than holding that, in such circumstances, it is reasonable to infer that the absence of washing facilities was likely to have made a material contribution to the causation of the dermatitis.
+As Lord Mackay himself pointed out, in McGhee there were no statistics.
+The House had to deal with the appeal on the basis of the evidence of Dr Hannay, a dermatologist led by the pursuer, which the Lord Ordinary had accepted.
+Dr Hannay, who was not cross examined on the point, said that the provision of showers would have materially reduced the risk of the pursuer contracting dermatitis: 1973 SC (HL) 37, 42.
+So the lack of showers materially increased the risk of the pursuer contracting dermatitis.
+In these circumstances, from a broad and practical viewpoint, Lord Reid could see no substantial difference between saying that what the defender did materially increased the risk of injury to the pursuer and saying that what the defender did made a material contribution to his injury: McGhee v National Coal Board [1973] 1 WLR 1, 5B C.
+From his previous reference, at p 4D F, to Bonnington Castings Ltd v Wardlaw [1956] AC 613 it is evident that Lord Reid was thinking of any increase in the risk that could not be regarded as de minimis.
+There would, for example, have been a material (20%) increase in the risk in a case like McGhee, if 30 out of the population of 100 workmen would have been expected to develop dermatitis even after showering, but 36 would have been expected to develop it if no showers were provided.
+On that basis the House would have held the defenders liable.
+Secondly, as Lord Phillips points out, Lord Mackay must be supposed to have chosen the figures in his hypothetical example because, among the population of 100 workmen exposed to brick dust, more than twice as many (70) would be expected to develop dermatitis if no showers were provided, as would be expected to develop it even if showers were provided (30).
+In terms of the defendants argument in the present appeals, failure to provide showers would more than double the risk.
+In that situation, assuming that nothing more were known, Lord Mackay thought that the House might be taken as holding that it was reasonable to infer that there was a relationship between contraction of dermatitis in these conditions and the absence of washing facilities and therefore it was reasonable to hold that absence of washing facilities was likely to have made a material contribution to the causation of the claimants dermatitis.
+Lord Mackays introductory words (assuming nothing more were known) show that he was conscious that, if the House did indeed reason in that way, it would be reasoning, from statistics about the situation in a population of 100 workmen in the same conditions, to the case of the individual claimant.
+Obviously, care has to be taken in doing so.
+For example, if the claimant had some underlying condition which made him particularly sensitive to brick dust, that would affect any reliance that could be placed on the statistics in his case.
+More fundamentally, however, it is necessary to see what the epidemiological evidence would actually show in Lord Mackays hypothetical case.
+Suppose the claimant, who had not been able to shower, developed dermatitis.
+As a matter of fact, he either developed the dermatitis because of the lack of a shower or he developed it simply because of his exposure to the dust.
+In other words, either he was one of 30 who would have developed dermatitis anyway, or he was one of the additional 40 who, the epidemiological evidence suggested, would have developed it only because there were no showers.
+Ex hypothesi, however, general medical science is incapable of saying into which category the claimant falls.
+And epidemiological science is equally incapable of determining that particular question indeed it is no part of its function to do so.
+In that situation a court could simply say that the claimants case failed since he had not proved that he was among the 40 who would have developed dermatitis only because there were no showers, rather than among the 30 who would have developed it even if they had showered.
+Alternatively, a court might say that it was more likely that the claimants dermatitis was caused by the lack of showers.
+And, in fact, various courts have adopted an approach based on doubling the risk as their way of dealing with the problems of proof in toxic tort cases.
+As already mentioned at para 140 above, an example is the decision of the Supreme Court of Texas in Merrell Dow Pharmaceuticals Inc v Havner (1997) 953 SW 2d 706 which Lord Phillips discusses at paras 85 89.
+It should be noticed, however, that the starting point for the courts discussion was that epidemiological studies cannot establish the actual cause of an individuals injury or condition.
+The court explained the basis of its approach in this way: In the absence of direct, scientifically reliable proof of causation, claimants may attempt to demonstrate that exposure to the substance at issue increases the risk of their particular injury.
+The finder of fact is asked to infer that because the risk is demonstrably greater in the general population due to exposure to the substance, the claimant's injury was more likely than not caused by that substance.
+Such a theory concedes that science cannot tell us what caused a particular plaintiff's injury.
+It is based on a policy determination that when the incidence of a disease or injury is sufficiently elevated due to exposure to a substance, someone who was exposed to that substance and exhibits the disease or injury can raise a fact question on causation.
+The court acknowledged that it was adopting a particular policy on what counted as raising a question on causation in such circumstances.
+On the basis of McGhee Lord Mackay envisaged that in an appropriate case the House of Lords would take a somewhat similar approach.
+Lord Mackay first suggests that in his hypothetical case the House could be taken as holding that, on the basis of the statistics, it would be reasonable to infer that there was a relationship between contraction of dermatitis in these conditions and the absence of washing facilities.
+Assuming that the epidemiological evidence is reliable, that is plainly so.
+He goes on to suggest that, on the basis of that inference, it might be reasonable to hold that the absence of washing facilities was likely to have made a material contribution to the causation of the dermatitis by which he means the claimants dermatitis.
+This is the critical step.
+It is important to recognize that in such a case the claimant would not have proved, on the balance of probability, that his exposure to the brick dust by the defendant actually caused his dermatitis.
+Indeed the starting point of the entire hypothetical example is that, in the present state of medical knowledge, the claimant could not prove this.
+Assuming that the epidemiological study is reliable, the statistics in Lord Mackays example would simply indicate that, if you took 100 workmen who developed dermatitis after working in the same conditions, you would expect to find that 30 developed it after having showered and 70 developed it when they had not been able to shower.
+So, by leading the epidemiological evidence, the only fact that the claimant can prove and offers to prove, on the balance of probability, is that in most cases the dermatitis would have been related to the lack of showers.
+So, if the judge accepts the evidence, it may legitimately satisfy him, on the balance of probability, not that the claimants dermatitis was caused by the lack of showers, but that, in the absence of any evidence that the claimant is atypical, it is more probable than not that his dermatitis was caused by the lack of showers.
+In short, the chances are that it was.
+Whether, in any particular case, the claimants dermatitis was actually caused by the lack of showers is a matter of fact and one that remains unknown, if the only available evidence is statistical.
+See Steve Gold, Causation in Toxic Torts: Burdens of Proof, Standards of Persuasion, and Statistical Evidence (1986) 96 Yale LJ 376, 382 384.
+Where the claimant led only statistical evidence, a court could simply say that his case failed.
+Alternatively, as Lord Mackay envisaged, the court might have held, exceptionally, that, where no other proof was possible, the defendant should be held liable on the basis of Lord Mackays rule.
+Of course, it is possible to conceive of a legal system which chose, as a matter of policy, to make defendants liable for all the damage which a court was satisfied, on the balance of probability, they had probably caused.
+But only the legislature could alter English or Scots law so as to introduce a general rule to that effect, which would change the very nature of the system and completely alter its balance, in favour of claimants and against defendants and their insurers.
+In Hotson Lord Mackay was not suggesting that English law operated, or should operate, generally on that basis.
+On the contrary, he had just been at pains, along with the other members of the appellate committee, to emphasise that in civil proceedings for damages the role of the judge is to decide, on the balance of probability, what actually happened.
+He introduced his discussion of the hypothetical case by saying, [1987] AC 750, 786A B, that he considered that it would be unwise, however, to lay it down as a rule that a plaintiff could never succeed by proving loss of a chance in a medical negligence case.
+He then referred to McGhee.
+So he seems to have envisaged that the court might adopt such an approach in an exceptional case like McGhee where, because of the state of medical knowledge, the claimant could not prove his case on the usual approach.
+There is now no room, however, for Lord Mackays rule in cases of that kind in English or Scots law since, in Fairchild, the House dealt with the problem of proof which they present by adopting a different and for claimants much less stringent rule.
+With Lord Mackays rule, the claimant would succeed if he showed, on the balance of probability, that it was more likely than not that the defendants breach of duty had materially contributed to the causation of his dermatitis; under the rule in Fairchild, the claimant succeeds if he shows, on the balance of probability, that the defendants breach of duty materially increased the risk that he would contract dermatitis.
+Indeed, the rule in Fairchild is more generous to claimants precisely because it is modelled on the rule which the House had adopted in McGhee and which was itself more generous to pursuers than the rule described by Lord Mackay.
+Put shortly, if the House had applied Lord Mackays rule, the claimants in Fairchild would unquestionably have failed since there was no evidence, whether epidemiological or of any other kind, to show that, on the balance of probability, it was more probable than not that the breach of duty of any of the individual defendants had materially contributed to the causation of the victims disease.
+All that the claimants could show was that, on the balance of probability, each of the defendants had materially increased the risk that the victims would develop mesothelioma.
+For the policy reasons which it gave, the House of Lords held that this was enough.
+Single Exposure Mesothelioma Cases
+Similarly, in my view, there is now no room for introducing the doubling of the risk approach in single exposure mesothelioma cases.
+As already explained, in these cases, because of the state of medical knowledge, it is impossible to prove whether the victims mesothelioma was actually caused by the defendants breach of duty or by asbestos fibres in the general atmosphere.
+The claimant comes up against the same rock of uncertainty.
+In that respect single exposure cases are no different from multiple defendant cases and the same approach should be applied.
+The point is covered by what Lord Hoffmann said in Barker v Corus UK Ltd [2006] 2 AC 572, 584H 585B, at para 17, in a short passage with which all the members of the appellate committee agreed: The purpose of the Fairchild exception is to provide a cause of action against a defendant who has materially increased the risk that the claimant will suffer damage and may have caused that damage, but cannot be proved to have done so because it is impossible to show, on a balance of probability, that some other exposure to the same risk may not have caused it instead.
+For this purpose, it should be irrelevant whether the other exposure was tortious or non tortious, by natural causes or human agency or by the claimant himself.
+These distinctions may be relevant to whether and to whom responsibility can also be attributed, but from the point of view of satisfying the requirement of a sufficient causal link between the defendant's conduct and the claimant's injury, they should not matter.
+The position accordingly is that in single exposure cases the Fairchild exception applies and a claimant succeeds if he proves, on the balance of probability, that the defendants breach of duty materially increased the risk that he would develop mesothelioma.
+Since that is the rule which applies in cases where the state of medical knowledge makes it impossible for a claimant to prove whether a defendants breach of duty actually caused his disease, there is no reason why a claimant needs to prove anything more than that the defendants breach of duty materially increased the risk that he would develop the disease.
+So in such cases the doubling of the risk approach is irrelevant.
+And there is no room for Mr Stuart Smiths fall back suggestion that, in single exposure cases, a material increase in risk should be equated with doubling the risk.
+That would be utterly inconsistent with the established law that, for these purposes, a risk is material if it is more than de minimis.
+See the discussion of the hypothetical use of statistics in McGhee at para 150 above.
+It also follows that there is no room in such cases for applying the approach laid down by Smith LJ in the Court of Appeal in the passage quoted at para 121 above.
+The purported guidance to courts in that passage should not be followed.
+Finally, nothing which I have said is intended to discourage the use of epidemiological evidence or to depreciate its value in cases where a claimant has to prove his case on the balance of probabilities.
+Far from it.
+Obviously, for example, epidemiology is likely to lie behind much of the evidence on which a court determines whether an exposure has materially increased the risk of the claimant developing a disease.
+Epidemiological evidence may also be relevant when deciding whether it would have been reasonable for a defendant to take precautions to avoid the risk of the claimant suffering a particular injury say, the side effect of a drug.
+And, of course it must be emphasised once more epidemiological and statistical evidence may form an important element in proof of causation.
+I have simply emphasised the point made by Phipson on Evidence,17th ed (2010), para 34 27, that, unless a special rule applies, Where there is epidemiological evidence of association, the court should not proceed to find a causal relationship without further, non statistical evidence.
+In other words, since, by its very nature, the statistical evidence does not deal with the individual case, something more will be required before the court will be able to reach a conclusion, on the balance of probability, as to what happened in that case.
+For example, where there is a strong epidemiological association between a drug and some condition which could have been caused in some other way, that evidence along with evidence that the claimant developed the condition immediately after taking the drug may well be enough to allow the judge to conclude, on the balance of probability, that it was the drug that caused the claimants condition.
+Of course, in any actual dispute, the epidemiological evidence may be contested.
+The judge will then have to decide which expert view he accepts and how reliable the evidence is whether, for example, the study has been properly constructed and, in particular, what the confidence intervals are.
+In that respect epidemiological evidence is no different from other evidence.
+Disposal
+Since the Fairchild exception applies in single exposure cases, the claimants in the present appeals were entitled to succeed if they proved that the defendants breach of duty materially increased the risk that Mrs Costello and Mrs Willmore would develop mesothelioma.
+There was therefore no error of law on the part of the Court of Appeal.
+The defendants appeal in Sienkiewicz must accordingly be dismissed.
+So far as the law is concerned, the same applies to Willmore.
+In that case the Council also appealed on the facts.
+The Court of Appeal reviewed the evidence and the judges reasoning.
+Having rejected his finding on one point, they accepted that he had been entitled to find that she had been exposed to asbestos in two other ways and that those exposures had been material.
+It is important that judges should bear in mind that the Fairchild exception itself represents what the House of Lords considered to be the proper balance between the interests of claimants and defendants in these cases.
+Especially having regard to the harrowing nature of the illness, judges, both at first instance and on appeal, must resist any temptation to give the claimants case an additional boost by taking a lax approach to the proof of the essential elements.
+That could only result in the balance struck by the Fairchild exception being distorted.
+Mr Feeny made a number of plausible criticisms of the findings of Nicol J and of the approach of the Court of Appeal and suggested that they had been unduly favourable to Mrs Willmore.
+Some of the inferences which Nicol J drew in Mrs Willmores favour from the evidence relating to her exposure at Bowring Comprehensive can properly be regarded as very generous.
+With considerable hesitation, however, I have concluded that the criticisms would not justify this Court in taking the exceptional step of disturbing the concurrent findings of fact of the courts below.
+I would accordingly dismiss the Councils appeal on the facts.
+In the result, the appeal in Willmore must also be dismissed.
+LADY HALE
+I pity the practitioners as well as the academics who have to make sense of our judgments in difficult cases.
+But these cases are hard rather than difficult.
+We are here concerned with one case of relatively light but long term exposure and one case of very slight and short term exposure, both set against a lifetime of environmental and other possible exposures about which nothing much is known.
+As Lord Brown implies, Fairchild kicked open the hornets nest.
+The House of Lords were confronted with several employers, each of which had wrongly exposed their employees to asbestos, but none of which exposure could be shown to have caused the disease.
+I find it hard to believe that their Lordships there foresaw the logical consequence of abandoning the but for test: that an employer or occupier whose wrongful exposure might or might not have led to the disease would be liable in full for the consequences even if it was more likely than not that some other cause was to blame (let alone that it was not more likely than not that he was to blame).
+But, as Lord Rodger has explained, that is the logical consequence and there is nothing we can do about it without reversing Fairchild.
+Even if we thought it right to do this, Parliament would soon reverse us, and it is easy to understand why.
+Asbestos has long been known to be a dangerous (as well as a useful) substance, employers and occupiers turned a blind eye to those dangers long after they knew or should have known about them, and mesothelioma is a dreadful disease.
+In Barker, Mr Stuart Smith tried very hard to persuade the House of Lords that the Fairchild exception applied only where all the exposure was in breach of duty.
+He failed in that, although he succeeded in persuading the majority that the price to be paid for abandoning conventional rules of causation was aliquot liability.
+Parliament swiftly disagreed.
+The Compensation Act 2006 restored the principle that any tortfeasor is liable in full for an indivisible injury.
+But that leaves us with the result that a defendant who may very well not have caused the claimants disease indeed probably did not do so is fully responsible for its consequences.
+I do not see any answer to that.
+It is the inevitable result of Barker, made even more severe through the intervention of Parliament, but inevitable none the less.
+That means that in cases where the Fairchild exception applies, there is no room for the more than doubles the risk approach to causation: it is not necessary in order to establish causation and it is not an appropriate test of what is a more than de minimis increase in risk.
+So we do not need to go into the relevance of statistical probabilities to the finding of causation for the purpose of deciding these cases.
+Nor, in the event, did the Court of Appeal need to do so.
+The reason why Lord Phillips and Lord Rodger have discussed the subject at such length is the obiter observation of Smith LJ, at para 23 of her judgment in Sienkiewicz, that in a case of multiple potential causes, a claimant can demonstrate causation by showing that the tortious exposure has at least doubled the risk arising from the non tortious cause or causes.
+Anything we say on the subject, therefore, is also obiter.
+However, I do agree with Lord Rodger that doubling the risk is not an appropriate test of causation in cases to which the Fairchild exception does not apply.
+Risk is a forward looking concept what are the chances that I will get a particular disease in the future? Causation usually looks backwards what is the probable cause of the disease which I now have? Epidemiology studies the incidence and prevalence of particular diseases and the associations between both of these and particular variables in the diseased population.
+From these it is possible to predict that a particular percentage of the population, for example of women aged between 60 and 70, will contract a particular disease, for example, breast cancer.
+It is also possible to say that certain variables, such as life style or age of first child bearing, are associated with a greater chance of developing the disease.
+So a doctor will sensibly advise her patient to behave in a way which will reduce the risks.
+But if the disease materialises, the existence of a statistically significant association between factor X and disease Y does not prove that in the individual case it is more likely than not that factor X caused disease Y.
+The same applies to less sophisticated calculations.
+The fact that there are twice as many blue as yellow taxis about on the roads may double the risk that, if I am run over by a taxi, it will be by a blue rather than a yellow one.
+It may make it easier to predict that, if I am run over by a taxi, it will be by a blue rather than a yellow one.
+But when I am actually run over it does not prove that it was a blue taxi rather than a yellow taxi which was responsible.
+Likewise, if I actually develop breast cancer, the fact that there is a statistically significant relationship between, say, age at first child bearing and developing the disease does not mean that that is what caused me to do so.
+But as a fact finder, how can one ignore these statistical associations? Fact finding judges are told that they must judge a conflict of oral evidence against the overall probabilities coupled with the objective facts and contemporaneous documentation: see, for example, Robert Goff LJ in Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyds Rep 1, 57.
+Millions of pounds may depend upon their decision.
+Yet judges do not define what they mean by the overall probabilities other than their own particular hunches about human behaviour.
+Surely statistical associations are at least as valuable as hunches about human behaviour, especially when the judges are so unrepresentative of the population that their hunches may well be unreliable? Why should what a (always middle aged and usually middle class and male) judge thinks probable in any given situation be thought more helpful than well researched statistical associations in deciding where the overall probabilities lie? As it seems to me, both have a place.
+Finding facts is a difficult and under studied exercise.
+But I would guess that it is not conducted on wholly scientific lines.
+Most judges will put everything into the mix before deciding which account is more likely than not.
+As long as they correctly direct themselves that statistical probabilities do not prove a case, any more than their own views about the overall probabilities will do so, their findings will be safe.
+So in my view it would be wrong for judges to change their fact finding behaviour because of anything said in this case.
+On the issues of law, the Fairchild exception has to apply to these single tortious exposure cases, no matter how unjust it may seem to the defendants.
+Even if I were convinced of the merits of the more than doubling the risk approach to causation in other contexts, which I am not, it does not apply in these cases.
+That is enough to dispose of the appeal in the case of the late Mrs Costello.
+In the case of Mrs Willmore, the judges findings of fact were truly heroic, and I would endorse what Lord Rodger says about this, but I do not think that it is open to us to disturb them.
+I would dismiss both appeals.
+LORD BROWN
+Mesothelioma claims are in a category all their own, so special indeed that Parliament in 2006 chose to legislate specifically for them: section 3 of the Compensation Act 2006.
+Whilst entertaining no doubt that the position now reached in respect of such claims is precisely as Lord Phillips and Lord Rodger have explained and that these appeals must accordingly fail, I think it only right to indicate just how unsatisfactory I for my part regard this position to be and how quixotic the path by which it has been arrived at.
+The present position, exemplified by the facts of these very appeals, can be simply stated as follows: any person who negligently or in breach of duty exposes another more than minimally to the inhalation of asbestos fibres will be liable to make full compensation if that other develops mesothelioma more than five years later (five years being now thought to be the minimum period between the development of the first malignant cell and the diagnosis of the disease see Lord Phillips judgment at para 19(v)).
+That statement of the position holds true irrespective of whether the victim was exposed by others to even longer and more intensive inhalation (and indeed inhalation of more noxious fibres), whether negligently or not, and irrespective too of any environmental or other exposure (again, however intensive).
+It requires qualification only if and to the extent that the victim negligently exposed himself to the inhalation of asbestos fibres (when there may be a finding of contributory fault).
+One need hardly stress how radically different such an approach to compensation represents from that followed in all other cases of physical injury.
+All other cases require that the claimant satisfies the but for test of causation.
+True, in the case of cumulative injuries, the law holds a negligent employer liable even if his negligence is responsible for part only of the victims condition (provided only that it made a material, ie more than de minimis, contribution to the development of the condition).
+I have difficulty, however, in seeing this as a true exception to the but for test: although the claimant in Bonnington Castings Ltd v Wardlaw [1956] AC 613, the case which first established the principle, recovered full damages for his condition (pneumoconiosis from the inhalation of silica), that appears to have been because the defendants took no point on apportionment; in a series of subsequent such cases damages have been apportioned, however broadly for example, as between negligent and non negligent exposure respectively in dust inhalation cases, in noise cases and in cases of vibration white finger, and, in respiratory disease cases, between the damage caused by the inhalation of fumes or other noxious agents on the one hand and the claimants habit of cigarette smoking on the other.
+It therefore seems to me that there is just one single authority that needs to be noticed before one turns to the three stage process by which the present approach to compensation in mesothelioma cases came to be dictated, namely, of course, McGhee v National Coal Board [1973] 1 WLR 1.
+McGhee is undoubtedly a problematic case.
+The House of Lords was later in Wilsher v Essex Area Health Authority [1988] AC 1074 to regard it as not having laid down any principle of law at all; rather it was described by Lord Bridge of Harwich, at p 1090, as merely a robust and pragmatic approach to the undisputed primary facts of the case on the basis that, as in Bonnington Castings, the negligent prolongation of the claimants contact with (in McGhee) brick dust had materially contributed to his development (in McGhee) of dermatitis.
+Rightly or wrongly, however (and whether rightly or wrongly now matters nothing), the House of Lords in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 found altogether greater force in McGhee.
+As was pointed out, for example by Lord Nicholls, it had really not been open to the House in McGhee to infer from the established facts that the employers negligence had caused or materially contributed to the onset of his condition.
+In short, the House in Fairchild regarded McGhee as authority for the application to certain cases of a less stringent test than the usual but for test for establishing the necessary causal connection between the employers negligence and the claimants condition.
+That said, however, the judgments in Fairchild provided no support whatever for a general principle of compensation in mesothelioma cases remotely as wide as I have described the present position to be today.
+Quite the contrary.
+The circumstances in which the more relaxed approach to causation said to have been adopted in McGhee were held to apply to mesothelioma cases were narrowly circumscribed.
+One should note particularly Lord Binghams six relevant factors (conveniently set out at para 39 of Lord Phillips judgment), all of which had to be present before the special rule of causation was to apply.
+Note too the agreement between the parties in Fairchild that any cause of [the claimants] mesothelioma other than the inhalation of asbestos dust at work can be effectively discounted (Lord Binghams speech at para 2).
+Consider also the rationale identified by Lord Bingham as justifying this special rule: the strong policy argument in favour of compensating those who have suffered grave harm, at the expense of their employers who owed them a duty to protect them against that very harm and failed to do so, when the harm can only have been caused by breach of that duty and when science does not permit the victim accurately to attribute, as between several employers, the precise responsibility for the harm he has suffered (Lord Bingham at para 33).
+Lord Bingham was there positing a situation where, for example, a mesothelioma victim had worked for three successive employers each, say, for fifteen years, all of whom had negligently exposed him to the inhalation of asbestos fibres.
+Faced with the rock of uncertainty Lord Binghams graphic characterisation of sciences inability to establish on a balance of probabilities which particular source(s) of asbestos fibre exposure had caused mesothelioma to develop one can readily see how the House came unanimously to endorse this new principle.
+I am not, of course, suggesting that their Lordships in Fairchild were intent on confining the application of this new principle quite so narrowly as that.
+Lord Rodger, for example, expressly recognised (at para 170 of his speech) that it can also apply where, as in McGhee, the other possible source of the injury is a similar, but lawful, act or omission of the same defendant.
+But he immediately then reserve[d] [his] opinion as to whether the principle applies where the other possible source of injury is a similar but lawful act or omission of someone else or a natural occurrence.
+The point I make is that it is hardly to be thought that had the House, on the occasion of the Fairchild hearing, been considering not the facts of those three appeals but instead the facts of the present appeals the claimants would have succeeded and the law have developed as it has.
+Before parting from Fairchild it is, I think, worth noting that, just as in Bonnington Castings half a century before, the respondent defendants in Fairchild similarly took no point on apportionment: their stance now as then was one of all or nothing doubtless in the hope (and perhaps even the expectation) of defeating the claims in their entirety.
+Coming then to stage two of the three stage process, by which the present position with regard to mesothelioma cases came to be established, Barker v Corus UK Ltd [2006] 2 AC 572, one finds the House having to face up to some of the problems it had left open with Fairchild and, as it seems to me, beginning to have second thoughts both as to the juristic basis for this special rule of causation which Fairchild held to apply in certain toxic tort cases and as to where the abandonment of the but for principle was taking the law.
+In the result, the Fairchild approach was (as Lord Rodger now puts it at para 140 of his judgment) refined; Lord Hoffmann explained that Fairchild had recognised a new tort, that of negligently increasing the risk of personal injury (although, of course, the injury had to eventuate before any tort was committed), and logically it followed that any liable defendant should be liable only for his aliquot share of the victims loss, not for its entirety.
+The damage was no longer to be treated as the indivisible mesothelioma but rather as the readily divisible creation of the risk of developing mesothelioma.
+Damages, therefore, were to be apportioned according to the contribution made by any particular defendant to the overall risk.
+On that basis, of course, the special rule whereby the but for test of causation is relaxed applies equally whether or not other exposures are partly tortious and partly non tortious, or indeed wholly non tortious, and whether they result from natural causes or indeed, from the employees own negligence.
+It is to my mind quite clear that the preparedness of the majority of the court in Barker to extend the reach of the Fairchild principle this far was specifically dependent upon there being aliquot liability only.
+Lord Rodger alone thought that liability under the Fairchild exception to the but for rule should be for full compensation (in solidum).
+But he made clear that had that been the view of the majority, then in a case where the victim had himself been solely responsible for a material exposure especially where, as in one of the three appeals before the court in Barker, the victim had himself been at fault he would have applied the normal but for rule for proof of causation.
+The third and final stage of the process by which the law with regard to compensation in mesothelioma cases came to reach its present position was, of course, Parliaments enactment of section 3 of the Compensation Act 2006.
+I have no doubt that Lord Rodger is right (at paras 131 and 132 of his judgment) in saying that the sole effect of section 3 is to reverse the Houses decision in Barker on the issue of quantum; in no way does it pre empt or dictate the proper approach of the common law to questions of causation and liability.
+On the other hand it would be a remarkable thing for this Court now in effect to reverse the decision in Fairchild and revert, in mesothelioma cases as in all others, to the normal, but for, rule of causation the principle, vindicated periodically down the years in cases of indivisible no less than of cumulative injury (Gregg v Scott [2005] 2 AC 176 being the latest such decision in point), that to establish liability the claimant must show that but for the defendants negligence he would probably not have suffered his injury (or at least not have suffered it to the full extent that he has).
+In my judgment it could only be by reversing Fairchild and allowing no exception whatever to the normal rule of causation that this Court could now avoid what Lord Phillips (at para 58 of his judgment) rightly describes as the draconian consequences of coupling section 3 to the Fairchild/Barker principle: the liability in full even of someone responsible for only a small proportion of the overall exposure of a claimant to asbestos dust.
+There is in my opinion simply no logical stopping place between the case of successive negligent employers dealt with in Fairchild itself (apparently circumscribed though that decision was) and the extreme (draconian) position now arrived at, well exemplified as it seems to me by the facts of these very appeals.
+If, because of the rock of uncertainty, the law is to compensate by reference to negligence which merely increases the risk of such injury as then develops, why should not that relaxation of the normal rule of causation apply equally when, as here, there is but one negligent employer (or negligent occupier) as when there are several? As Barker recognised, there can be no rational basis for confining the special rule within narrow bounds, whatever may have been contemplated by the House in Fairchild.
+In short, the die was inexorably cast in Fairchild although, as already suggested, it is doubtful if that was then recognised and it is noteworthy too that, even when in Barker it came to be recognised, it was then thought palatable only assuming that compensation was going to be assessed on an aliquot basis.
+Parliament, however, then chose although, of course, only in mesothelioma cases to go the whole hog.
+The result must surely be this.
+As I began by saying, mesothelioma cases are in a category all their own.
+Whether, however, this special treatment is justified may be doubted.
+True, as Lord Phillips observes at the outset of his judgment, mesothelioma is indeed a hideous disease. (And it is perhaps also the case, as Lord Phillips suggests at para 104, that mesothelioma, after all, may result from the cumulative effect of exposures to asbestos dust.) The unfortunate fact is, however, that the courts are faced with comparable rocks of uncertainty in a wide variety of other situations too and that to circumvent these rocks on a routine basis let alone if to do so would open the way, as here, to compensation on a full liability basis would turn our law upside down and dramatically increase the scope for what hitherto have been rejected as purely speculative compensation claims.
+Although, therefore, mesothelioma claims must now be considered from the defendants standpoint a lost cause, there is to my mind a lesson to be learned from losing it: the law tampers with the but for test of causation at its peril.
+There is a rough justice about the law of personal injury liability as a whole.
+To compensate a claimant in full for a lost finger because there was a 60:40 chance that he would have worn protective gloves had they been made available to him may be regarded as rough justice for defendants.
+But it is balanced by the denial of compensation to a claimant who cannot establish that he would probably have worn the gloves or whose finger the judge concludes was probably already doomed because of frostbite.
+Save only for mesothelioma cases, claimants should henceforth expect little flexibility from the courts in their approach to causation.
+Since Fairchild and Barker there has been much academic focus on a supposedly critical distinction between so called single agent and multiple agent cases, the suggestion being that the former more readily lend themselves to special rules of causation than the latter.
+For my part I have difficulty even in recognising the distinction between these categories, at any rate in some cases.
+But I have greater difficulty still in accepting that the courts should now, whether on this or any other basis, be thinking of creating any further special rules regarding the principles governing compensation for personal injury.
+The same logic which requires that the claims of these respondents succeed to my mind requires also that the courts should in future be wary indeed before adding yet further anomalies in an area of law which benefits perhaps above all from clarity, consistency and certainty in its application.
+LORD MANCE
+Cases of mesothelioma are subject to the special rule of causation established in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32 and developed in Barker v Corus UK Ltd [2006] UKHL 20; [2006] 2 AC 572, but significantly amended by the Compensation Act 2006.
+I agree that this special rule is applicable to both the appeals before this court, although in each (a) only one person (an employer in one case, a school in the other) is shown to have exposed the victim of mesothelioma to asbestos, the only other such exposure being the general low level atmospheric exposure incurred by members of the public at large, and (b) the exposure by that person did no more than increase the sufferers general low level atmospheric exposure to asbestos materially (or, more specifically, in the case of Mrs Costello represented by Mrs Sienkiewicz, by some 18%).
+The submission that causation can be shown by proving a doubling of the ambient risk, or can be negatived by disproving this, is inconsistent with, or would make a radical and uncertain inroad into, the special rule.
+I reach this conclusion in agreement with the reasoning on this aspect of Lord Phillips, Lord Rodger, Lady Hale and Lord Dyson, on the basis that our understanding of the aetiology of mesothelioma remains as incomplete and inadequate as ever.
+I also concur with the further remarks of Lady Hale in her first paragraph and of Lord Brown in his judgment about the impossibility of going back on Fairchild, as well as on the lesson of caution that the history may teach in relation to future invitations to depart from conventional principles of causation.
+I too would therefore dismiss the appeal in Mrs Costellos case.
+An interesting debate has, somewhat unexpectedly, developed about the significance or value of epidemiological or statistical evidence relating to a population or group in the context of decision making in particular cases.
+I share a reluctance to place too much weight on such evidence.
+This is not because statistics are lies, or because truth can be stranger than fiction.
+It is because the law is concerned with the rights or wrongs of an individual situation, and should not treat people and even companies as statistics.
+Despite the intense sympathy which can arise in particular cases like the present, an attribution of liability based substantially on statistical evidence, that, viewing the relevant population or group as a whole, it is more likely than not that the particular defendant was negligent or causatively responsible, appears to me most undesirable.
+That epidemiological evidence used with proper caution, can be admissible and relevant in conjunction with specific evidence related to the individual circumstances and parties is, however, common ground and clearly right.
+What significance a court may attach to it must depend on the nature of the epidemiological evidence, and of the particular factual issues before the court.
+Whether and if so when epidemiological evidence can by itself prove a case is a question best considered not in the abstract but in a particular case, when and if that question arises.
+If it can, then, I would hope and expect that this would only occur in the rarest of cases.
+In other cases, there will be continuing good sense in the House of Lords reminder to fact finders in Rhesa Shipping Co SA v Edmunds (the Popi M) [1985] 1 WLR 948 that it is not their duty to reach conclusions of fact, one way or the other, in every case.
+There are cases where, as a matter of justice and policy, a court should say that the evidence adduced (whatever its type) is too weak to prove anything to an appropriate standard, so that the claim should fail.
+The American material which we have seen, particularly Smith v Rapid Transit Inc (1945) 58 NE 754, Merrell Dow Pharmaceuticals Inc v Havner (1997) 953 SW 2d 706 and Causation in Toxic Torts: Burdens of Proof, Standards of Persuasion, and Statistical Evidence by Steve Gold (1986) 96 Yale LJ 376, demonstrates, with innumerable further references, the detailed and extensive thought which has been given across the Atlantic to the significance and use of epidemiological or statistical evidence.
+In that light and without hearing fuller argument, as well as because it raises fact specific issues and is unnecessary for the resolution of these appeals, I think it inappropriate to say more about the use of epidemiological evidence.
+On the material before us, I would myself see Willmore v Knowsley Metropolitan Borough Council as a case where there was no sufficient proof that the defendant exposed the claimant to asbestos.
+The judge found exposure on a slender and speculative basis which Lady Hale describes as heroic.
+But, the concurrent findings below on two of the three bases of exposure found by the judge are entitled to some weight, and on that basis I do not dissent from the general view that the appeal on fact in Willmore should also be dismissed.
+LORD KERR
+What has been called the Fairchild exception was described in a variety of ways in Barker v Corus UK Ltd [2006] 2 AC 572 but common to all the various formulations is the proposition that where employers through breach of duty expose their employee to asbestos and thereby materially increase the risk to the employee of developing mesothelioma, they will be jointly and severally liable if he or she develops that condition.
+This involved a modification of the previously applicable legal rules in relation to the causation element in employers liability claims.
+That alteration was thought necessary in order to cater for the particular difficulties that asbestos related disease presents.
+Implicit in the modification of the normal rule is the acceptance that an employer thus found liable may, in truth and in fact, not have been responsible for the damage at all.
+This is the price that it was deemed necessary to pay in order to hold the balance of justice between the parties.
+Because of the limitations of medical and scientific knowledge, it was recognised that it would be unjust to enforce a rigorous requirement of proof that a particular employment had actually caused or contributed to the damage.
+A potent factor in this equation was that the insidious nature of asbestos and the calamitous consequences that exposure to it can cause, allied to the current lack of scientific knowledge about the aetiology of mesothelioma, warrant a different approach to the conventional burden of proof.
+To insist on its stringent application would set what would in many instances prove an impossible practical difficulty in the way of a claimant.
+These considerations viz the constraints that arise from the unavailability of scientific proof and the dreadful illnesses that can result from asbestos exposure are just as relevant in the approach to so called single exposure cases as they are in cases of multiple employment exposure cases.
+The use of the expression single exposure may be misleading in this context.
+In Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 the defendants had argued that the claims should be dismissed because there were various exposures each of which could have caused the mesothelioma and each of which might not have done so.
+In the present cases the appellants argument resolves to essentially the same proposition.
+They suggest that there were two possible sources of exposure in each case in Mrs Costellos case exposure while employed by the defendant and environmental exposure and in Mrs Willmores case exposure while at school and environmental exposure.
+It is argued that each of these exposures might have caused the mesothelioma but each of them might not have done so.
+In effect, therefore, the appellants submit that there is more than one possible source for the mesothelioma that both women suffered.
+The difference in these cases is not that they involved a single exposure but that each had a tortious and a non tortious source of exposure.
+But the same difficulties as to proof as arose in Fairchild and Barker afflict the present cases.
+And it was those difficulties that prompted the modification of the causation rules.
+It might be suggested that it is easier to accept that several employers, none of whom could be positively identified as having caused or contributed to the condition, should have to participate in the compensation package, on the basis that one of them (at least) had actually caused the mesothelioma and because each of the employers had, in any event, been prepared to have their employee run the risk of contracting the disease.
+But that is not the basis on which the adjustment to the requirements of proof was made.
+That adjustment was made precisely because, as a matter of policy, it was considered that it would be unfair to impose on a claimant a requirement of proof which in most cases, because of the limitations of scientific knowledge, was quite incapable of fulfilment.
+In so far as such considerations might be considered relevant, however, the fact remains that both defendants in the present appeals were prepared to countenance a material increase in the risk to Mrs Costello and Mrs Willmore.
+The circumstance that the other possible source of mesothelioma in these cases was non tortious should make no difference.
+Nor did it in Barker.
+In that case it was expressly accepted by Lord Hoffmann, Lord Scott of Foscote and Lord Rodger of Earlsferry that the Fairchild exception did apply to a non tortious source of risk.
+At para 17 Lord Hoffmann said: The purpose of the Fairchild exception is to provide a cause of action against a defendant who has materially increased the risk that the claimant will suffer damage and may have caused that damage, but cannot be proved to have done so because it is impossible to show, on a balance of probability, that some other exposure to the same risk may not have caused it instead.
+For this purpose, it should be irrelevant whether the other exposure was tortious or non tortious, by natural causes or human agency or by the claimant himself.
+These distinctions may be relevant to whether and to whom responsibility can also be attributed, but from the point of view of satisfying the requirement of a sufficient causal link between the defendants conduct and the claimants injury, they should not matter.
+Lord Scott stated that he was in complete agreement not only with Lord Hoffmanns conclusions but also with his reasons for reaching them (para 50) and at para 97 Lord Rodger said: Starting from the McGhee extension, counsel considered whether Fairchild would apply where one or more of the sources of exposure to asbestos dust had been lawful but unconnected with any wrongdoer.
+For instance, the victim had been employed for a period before the dangers of exposure to asbestos dust should have been known in the industry and there had been no fault on the part of the employer.
+Having reserved my opinion on the point in Fairchild, I would now hold that the rule should apply in that situation.
+For the reasons given by Lord Phillips and Lord Rodger in the present appeals, therefore, I agree that there is no basis on which the Fairchild exception should not be applied in these cases and, on that account, that the appeals should be dismissed.
+The policy reason for introducing the modified rule in that case applies with equal force here and it would be anomalous and arbitrary to require these respondents to establish that it was twice as likely that the indicted exposure was the cause of the mesothelioma, while not imposing such a requirement on a claimant in a multiple employer exposure case.
+In all relevant respects the appellants are in an exactly similar position to a defendant in such a case.
+In both instances none of the defendants can be proved to have caused the mesothelioma but all have materially increased the risk by wrongfully exposing Mrs Costello and Mrs Willmore to asbestos.
+In these circumstances the interesting debate that has been had between Lord Phillips and Lord Rodger as to the use to which epidemiological evidence might be put is, at this stage certainly, academic.
+But I wish to say that I share the misgivings that have been expressed about the capacity of this type of evidence to prove that mesothelioma is more likely to have been caused by a particular exposure, even if advances in medical and scientific knowledge erode the rock of uncertainty.
+Epidemiology is the branch of medical science which normally deals with the incidence and prevalence of disease in large populations and with the detection of the sources and causes of disease.
+It involves the collection of data, usually over significant periods.
+Unless these coincide with periods of relevant exposure or replicate conditions of exposure experienced by individual claimants, the use of such data to seek to establish any specific proposition in an individual case requires to be treated with great caution, in my opinion.
+It is an essential and minimum requirement, as Brachtenbach J said in Herskovits v Group Health Cooperative of Puget Sound (1983) 664 P 2d 474, that there be evidence connecting avowedly relevant statistical information produced by the epidemiological studies to the facts of the case.
+In my view, no such connection was made in the present appeals.
+The epidemiological evidence which was adduced consisted of a series of assumptions and speculations rather than actual data which could be related to the experience of those who developed mesothelioma.
+What the testimony amounted to was the promotion of a theory rather than the establishment of facts and it did not constitute evidence on which reliable conclusions could be reached.
+There is a real danger that so called epidemiological evidence will carry a false air of authority.
+It is necessary to guard against treating a theory based on assumptions as a workable benchmark against which an estimate of the increase in risk could be measured.
+Whether and in what circumstances epidemiological evidence can assist in the determination of whether a particular case of mesothelioma is likely to have been caused by a particular exposure will have to be decided according to the particular circumstances of an individual case.
+In my view, the epidemiological material adduced in evidence in the present case could not have assisted in the determination of that issue.
+LORD DYSON
+The central question that arises in these appeals is whether the so called Fairchild exception applies in a single exposure case, that is to say a case where a victim has been exposed to asbestos by a single defendant in breach of duty and has also been exposed to asbestos in the general atmosphere.
+In Fairchild itself, the victims had been exposed to asbestos by a number of defendants in breach of their duty of care.
+The limitations of medical knowledge prevented them from being able to prove on the balance of probability which exposure had caused their mesothelioma.
+In order to avoid injustice, the House of Lords held that proof on the balance of probability that each defendants wrongdoing had materially increased the risk of contracting the disease was sufficient to satisfy the causal requirements for liability.
+For understandable reasons, the Court of Appeal had applied a conventional approach and had dismissed the claims because the claimants had been unable to prove on the balance of probability that their wrongful exposure to asbestos by any particular defendant had caused their disease.
+Each defendant was able to say that the offending asbestos might have been the result of exposure caused during the claimants employment by a different defendant.
+Thus it was that the claims were rejected by the Court of Appeal on what Lord Bingham called this rock of uncertainty.
+The Fairchild exception was created to circumvent the rock of uncertainty.
+It is implicit in the reasoning in Fairchild (repeated in Barker) that, if the rock of uncertainty were to disappear in the light of increased medical knowledge, then the rationale for the Fairchild exception would disappear and claimants would be required to prove their cases on the balance of probability in the usual way.
+It is common ground that medical knowledge about the aetiology of mesothelioma has not materially advanced since Fairchild.
+Mr Stuart Smith QC accepts that, if this were a multiple exposure case, the claimants would not be required to prove on the balance of probability (whether by the doubling of the risk test or otherwise) that their mesothelioma had been caused by wrongful exposure to asbestos.
+All that they would have to prove was that the defendant or defendants had materially contributed to the risk of mesothelioma.
+There has been no previous decision on a single exposure case.
+In Barker, the House of Lords held that the Fairchild exception applied even where not all the exposures to asbestos which could have caused the claimant employees mesothelioma involved breaches of duty by his employers (in that case, the employee was also exposed to asbestos during a period when he was self employed).
+At para 17, Lord Hoffmann said that the purpose of the Fairchild exception was: to provide a cause of action against a defendant who has materially increased the risk that the claimant will suffer damage and may have caused that damage, but cannot be proved to have done so because it is impossible to show, on a balance of probability, that some other exposure to the same risk may not have caused it instead.
+For this purpose, it should be irrelevant whether the other exposure was tortious or non tortious, by natural causes or human agency or by the claimant himself.
+These distinctions may be relevant to whether and to whom responsibility can also be attributed, but from the point of view of satisfying the requirement of a sufficient causal link between the defendants conduct and the claimants injury, they should not matter.
+Lord Scott expressed the same view at para 59.
+But Barker was not a single exposure case.
+So why should the Fairchild exception not be applied in a single exposure case? Mr Stuart Smith advances a number of reasons.
+He submits that there is no suggestion in any previous case that exposure to asbestos in the general atmosphere should be taken into account as a relevant exposure for the purposes of the Fairchild exception.
+The breathing of ambient air, which should merely be regarded as part of the ordinary vicissitudes of life, is not under the control of any single person or group of persons and should not be treated in the same way as exposures to a carcinogen controlled and caused by an identifiable individual.
+In my view, these are not good reasons for disapplying the Fairchild exception in a single exposure case.
+In view of the present state of medical knowledge, a single exposure claim would founder on the same rock of uncertainty as a multiple exposure claim.
+The exception was devised as a matter of policy to overcome the injustice that claimants would suffer if they were prevented by the rock of uncertainty from establishing causation in mesothelioma cases.
+This policy justification for the exception is articulated in a number of the speeches in both Fairchild and Barker: see, for example, per Lord Bingham at para 33 and Lord Nicholls at paras 41 and 42 in Fairchild.
+There is no reason in policy or principle why the exception should not apply to a single exposure claim just as it does to a multiple exposure claim.
+It is true that none of the previous decisions involves a single exposure claim.
+But that is not a good reason for refusing to apply the Fairchild exception if there is no material difference between single and multiple exposure claims.
+It is also true that the breathing of ambient air is a vicissitude of life.
+But that is not a good reason for distinguishing Fairchild either.
+On the present state of medical knowledge, the rock of uncertainty is as much of a problem for victims of single exposure as for victims of multiple exposure.
+It is implicit in Fairchild and Barker that, if it were possible for a victim of mesothelioma to establish causation on the balance of probability in the conventional way, then the rationale for the Fairchild exception would disappear.
+Mr Stuart Smith submits that causation can be established in the conventional way in a single exposure case (but, he accepts, not yet in a multiple exposure case).
+He says that a claimant can prove causation on a balance of probability by proving that the tortious exposure has at least doubled the risk arising from the non tortious cause.
+This was the approach adopted by Judge Main in Sienkiewicz and adopted as a correct statement of the law by Smith LJ at para 23 of her judgment.
+In fact, Smith LJ seems to have considered that it was a legitimate approach even in multi exposure cases, since she referred to a doubling of the risk arising from the non tortious cause or causes (emphasis added).
+Lord Phillips and Lord Rodger are in agreement that there is no scope in single exposure mesothelioma cases for the application of a doubling of the risk test based entirely on epidemiological evidence.
+But their reasoning differs to some extent.
+Lord Phillips considers that it is not possible to prove causation on the basis of epidemiological evidence alone because first it is not sufficiently reliable (paras 97 to 101), and secondly there continue to be gaps in our understanding of the aetiology of mesothelioma (paras 102 to 105).
+If these shortcomings in our understanding were made good, then it is implicit in the first reason that, if epidemiological data were to become sufficiently reliable, victims of mesothelioma would be able (and therefore required) to prove causation on the balance of probability on the basis of epidemiological evidence alone.
+Lord Rodger agrees with Lord Phillipss second reason.
+But his objection to proof on the basis of epidemiological evidence alone is not based on the unreliability of epidemiological data.
+It is more fundamental than that.
+Lord Rodger draws a distinction between claimant A, who proves on the balance of probability that a defendant probably injured him, and claimant B, who proves on the balance of probability that a defendant actually injured him.
+He says that, as a matter of law, claimant B will succeed but claimant A will fail.
+A claimant who seeks to prove his case on the balance of probability in reliance entirely on statistical evidence will inevitably fail, since he is able to do no more than prove on the balance of probability that the defendant probably injured him.
+I am grateful to Lord Rodger for drawing attention to the article by Steve Gold, Causation in Toxic Torts: Burdens of Proof, Standards of Persuasion, and Statistical Evidence (1986) 96 Yale LJ 376.
+The article distinguishes between fact probability and belief probability.
+The former is a more than 50% statistical probability of an event having occurred.
+An illustration of this is the 75% probability that the victim was run down by a blue cab in the example given by Brachtenbach J in Herskovits v Group Health Cooperative of Puget Sound (1983) 664 P 2d 474 (see para 95 of Lord Phillipss judgment).
+The latter is a more than 50% belief in the decision maker that a knowable fact has been established.
+Mr Gold points out that, particularly in toxic tort cases, US courts have often collapsed the distinction between fact probability and belief probability and simply asked the question whether the fact that the claimant seeks to prove has been established as more likely than not.
+In my view, this is an important distinction and it is of particular relevance in relation to causation in toxic torts.
+It is often the basic impossibility of proving individual causation which distinguishes toxic tort cases from ordinary personal injury cases.
+As Mr Gold points out, epidemiology is based on the study of populations, not individuals.
+It seeks to establish associations between alleged causes and effects.
+With proper scientific interpretation, these correlations lend great weight to an inference of causation.
+However, in an individual case, epidemiology alone cannot conclusively prove causation.
+At best, it can establish only a certain probability that a randomly selected case of disease was one that would not have occurred absent exposure.
+Ultimately, questions of burden and standard of proof are policy matters for any system of law.
+It is trite law that our system requires a civil claim to be proved by a claimant on the balance of probability.
+It is a matter of policy choice whether and, if so, in what circumstances the courts are willing to find causation proved on the balance of probability on the basis of epidemiological evidence alone.
+In the United States, some courts have been willing to find causation established on the balance of probability on the basis of epidemiological evidence alone.
+They have been criticised by Mr Gold for collapsing the distinction to which I have referred.
+As I have said, the House of Lords produced in the Fairchild exception a particular policy response to the causation problems created by the lack of scientific knowledge about the aetiology of mesothelioma.
+This response has been confirmed by the 2006 Act.
+In these circumstances, I agree with Lord Phillips and Lord Rodger that there is no room for the application of a different test which would require a claimant to prove (whether on the basis of doubling of the risk or otherwise) that on the balance of probability the defendant caused or materially contributed to the mesothelioma.
+It follows that I do not find it necessary to decide whether there are any circumstances in which, as a matter of English law, causation can be proved on the basis of epidemiological evidence alone.
+I am unaware of any English authority in which the question whether causation can be proved in a straightforward personal injury case on the basis of epidemiological evidence alone has been the subject of decision.
+Toxic torts, such as mesothelioma, give rise to particular causation problems.
+That is why special rules sometimes have been devised so as to avoid injustice.
+Such problems are not inherent in straightforward personal injury cases where it must be rare for a claimant to rely exclusively on epidemiological evidence to prove his or her claim.
+The claimant will almost always also be able to point to some specific evidence relating to the particular circumstances of the case.
+I note that in Smith v Rapid Transit Inc (1945) 317 Mass 469, 58 NE 2d 754 it was held on the facts of that case that statistical likelihood alone was insufficient to support a finding that the bus that injured the plaintiff was the defendants.
+But ultimately, as I have said, it is not necessary for the resolution of the present appeal to decide whether epidemiological evidence alone suffices, since Lord Phillips and Lord Rodger are agreed that there has been no material change in the understanding of the aetiology of mesothelioma and there is no basis for distinguishing single exposure cases from multiple exposure cases.
+It seems to me, however, that there is no a priori reason why, if the epidemiological evidence is cogent enough, it should not be sufficient to enable a claimant to prove his case without more.
+Our civil law does not deal in scientific or logical certainties.
+The statistical evidence may be so compelling that, to use the terminology of Steve Gold, the court may be able to infer belief probability from fact probability.
+To permit the drawing of such an inference is not to collapse the distinction between fact probability and belief probability.
+It merely recognises that, in a particular case, the fact probability may be so strong that the court is satisfied as to belief probability.
+Whether an inference of belief probability should be drawn in any given case is not a matter of logic.
+The law does not demand absolute certainty in this context or indeed in any context.
+Judges are frequently called upon to decide difficult and finely balanced questions on the balance of probability and sometimes say that they have reached their conclusions after much anxious consideration of the facts.
+It is true that, once the facts have been determined, they are treated as having been established and, subject to any appeal, they cannot be challenged.
+But the judge may even acknowledge in his judgment that he cannot be certain that the facts are as he found them to be.
+He cannot exclude another possibility.
+But he is satisfied on the balance of probability as to the facts and that is all that the law requires.
+I would in any event endorse what Lord Phillips has said about the limits of epidemiological evidence at paras 97 to 101 and also what he has said about what constitutes a material increase in risk at paras 107 and 108.
+I also agree with what Lord Rodger has said at paras 130 to 132 about the observations by Smith LJ about the effect of section 3 of the 2006 Act.
+For these reasons, I would dismiss these appeals.
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+This appeal concerns the permissibility and in particular compatibility with European Union law and Human Rights Convention rights, of a procedure (conveniently described as a closed material procedure) whereby an applicant and his representatives may be excluded from certain aspects of employment tribunal proceedings on grounds of national security, and a special advocate may represent his interests so far as possible in relation to the aspects closed to him and his representatives.
+In the relevant employment tribunal proceedings, the appellant, Mr Kashif Tariq, complains that his security clearance as an immigration officer was withdrawn in circumstances involving direct or indirect discrimination on grounds of race and/or religion, and that this was contrary to the Race Relations Act 1976 and the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660).
+The Home Offices case is that there was no such discrimination, that the decisions taken in relation to Mr Tariq were taken for the purposes of safeguarding national security, and that the order for a closed material procedure made by the Employment Tribunal (on the Home Offices application) on 15 February 2008 was made justifiably and for the same protective purposes.
+Mr Tariqs challenge to the Employment Tribunals order for a closed material procedure was dismissed by the Employment Appeal Tribunal on 16 October 2009, UKEAT 168/09, [2010] ICR 223 and the Court of Appeal on 4 May 2010 [2010] EWCA Civ 462, [2010] ICR 1034, but it was declared (by the Employment Appeal Tribunals order dated 24 November 2009, upheld in the Court of Appeal) that article 6 of the European Convention on Human Rights requires [Mr Tariq] to be provided with the allegations being made against him in sufficient detail to enable him to give instructions to his legal team so that those allegations can be challenged effectively (a requirement which can conveniently be described as gisting), even if this put the Home Office in the invidious position of having to make difficult decisions about disclosure and whether or how a claim is to be defended: [2010] ICR 1034, para 50, per Maurice Kay LJ.
+The Home Office appeals to the Supreme Court against the latter conclusion, while Mr Tariq cross appeals against the conclusion that a closed material procedure was permissible.
+The factual background in more detail
+Mr Tariq started employment with the Home Office as an immigration officer on 21 April 2003, having received the necessary security clearance on 18 February 2003.
+On 19 August 2006 he was suspended from duty on basic pay, while consideration was given to the withdrawal of his security clearance, and on 20 December 2006 his clearance was withdrawn.
+His internal appeal against this decision was dismissed on 9 August 2007, and his further appeal to the Security Vetting Appeals Panel (SVAP) was unsuccessful in January 2011.
+The background to the Home Offices decisions to suspend and withdraw Mr Tariqs security clearance consists in the arrest of his brother and cousin on 10 August 2006 during a major counter terrorism investigation into a suspected plot to mount a terrorist attack on transatlantic flights.
+Mr Tariq's brother was subsequently released without charge.
+Mr Tariq's cousin, Tanvir Hussain, was convicted on 8 September 2008 of conspiracy to murder, having previously also pleaded guilty to two counts of conspiracy to cause explosions and to commit a public nuisance.
+He is now serving a sentence of life imprisonment.
+Inquiries were made at the time of the arrests to establish whether or not Mr Tariq was involved in any way with the plot or could be affected by it.
+No information suggested that Mr Tariq had himself been involved in any terrorism plot, but the Home Office (in grounds of resistance served in the Employment Tribunal proceedings on 6 August 2007 and amplified on 20 December 2007) states that it was concerned in August 2006 that [Mr Tariq] could be vulnerable to an approach to determine if terrorist suspects had been flagged to the authorities or to smuggle prohibited items airside and that its decision to withdraw security clearance in December 2006 was based on [his] close association with individuals suspected of involvement in plans to mount terrorist attacks and on its view that association with such individuals might make him vulnerable to attempts to exert undue influence on [him] to abuse his position.
+Mr Tariq commenced the employment tribunal proceedings claiming direct or indirect discrimination on grounds of race and/or religion on 15 March 2007.
+He stated at the outset that he had been advised that his suspension and the withdrawal of his security clearance were because of his perceived association with certain relatives or associates of relatives suspected of association with terrorist activities and the risk of their attempting to exert influence on him to abuse his position.
+He denied any such association or risk.
+On 10 July 2007 he provided what he said were (considering, he said, the extremely limited information as to the grounds for his treatment to that date given) the best further particulars possible to give pending disclosure by the Home Office.
+These particulars alleged, inter alia, that the Home Office had relied upon stereotypical assumptions about him and/or Muslims and/or individuals of Pakistani origin such as susceptibility to undue influence, coercion or brainwashing and had indirectly discriminatory security policies, procedures and methods of investigation.
+The Home Office in its grounds of resistance denied this and maintains, as stated, that it acted throughout to protect national security.
+The legislation
+The Race Relations Act 1976 provides: 1 Racial discrimination (1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if (a) on racial grounds he treats that other less favourably than he treats or would treat other persons; . (lA) A person also discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in subsection (lB), he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but (a) which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons, (b) which puts or would put that other at that disadvantage, and (c) which he cannot show to be a proportionate means of achieving a legitimate aim. 42 Acts safeguarding national security Nothing in Parts II to IV shall render unlawful an act done for the purpose of safeguarding national security if the doing of the act was justified by that purpose.
+The Race Relations Act 1976 is the means by which the United Kingdom gives effect to its obligations under Council Directive 2000/43/EC of 29 June 2000 (the Race Directive) implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.
+On 27 November 2000 Council Directive 2000/78/EC (the Employment Equality Directive) established a general framework for equal treatment in employment and occupation.
+This led to the making, under section 2 of the European Communities Act 1972, of the Employment Equality (Religion or Belief) Regulations 2003 (the Employment Equality Regulations), prohibiting discrimination on grounds of religion or belief and providing: 3.(1) For the purposes of these Regulations, a person (A) discriminates against another person (B) if (a) on grounds of religion or belief, A treats B less favourably than he treats or would treat other persons; or (b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same religion or belief as B, but (i) which puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons, (ii) which puts B at that disadvantage, and (iii) which A cannot show to be a proportionate means of achieving a legitimate aim.
+Exception for national security 24.
+Nothing in Part II or III shall render unlawful an act done for the purpose of safeguarding national security, if the doing of the act was justified by that purpose.
+The issues regarding closed material procedure in more detail
+Employment Tribunals are established under the Employment Tribunals Act 1996.
+Section 7 entitles the Secretary of State to make by regulations (employment tribunal procedure regulations) . such provision as appears to him to be necessary or expedient with respect to proceedings before employment tribunals.
+Section 10, which I set out in the annex to this judgment, specifically authorises the making in the interests of national security of regulations providing for a closed material procedure, either by direction of a minister or by order of the employment tribunal or judge, and for the appointment by the Attorney General in that context of a special advocate.
+The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861) contain in Schedules 1 and 2 provisions made under sections 7 and 10 of the Act.
+Schedule 1, headed the Employment Tribunals Rules of Procedure (the ET Procedure Rules), contains rule 54, set out in the annex, providing specifically for a closed material procedure where a minister so directs (rule 54(1)) or where the tribunal or employment judge concludes that such a procedure is appropriate and so orders (rule 54(2)).
+Schedule 2, headed the Employment Tribunals (National Security) Rules of Procedure (the ET National Security Rules), contains rules 8 and 10, also set out in the annex, providing for special advocates and reasons in national security proceedings.
+Regulation 16 provides that the rules in Schedule 1 apply to employment tribunal proceedings generally, but that such rules shall be modified in accordance with Schedule 2 wherever any power conferred on the minister, the tribunal or an employment judge by rule 54 of Schedule 1 is exercised.
+Regulation 2 of the 2004 Regulations contains definitions, again set out in the annex.
+Mr Tariqs cross appeal (a) general
+The power to give directions conferred on the minister by rule 54(1) has not been exercised in this case.
+The Supreme Court was told that it has never been exercised in any case.
+The probable reasons are not difficult to discern, bearing in mind the scope for challenge both by judicial review and, more fundamentally, under the Human Rights Act 1998 or, Mr Robin Allen QC also submits for Mr Tariq, European Union law.
+While the conferral of the power is expressly authorised by the 1996 Act, it is hard to see how it could be compatible with article 6 of the European Convention on Human Rights for a minister to have power to make such a direction to a judicial tribunal.
+Instead of giving any direction, the minister made an application to the tribunal, asking it to order a closed material procedure with a special advocate under the discretionary power conferred by rule 54(2).
+On 15 February 2008, the tribunal held that it was expedient in the interest of national security to make orders under rule 54 that the whole of the proceedings be in private, and directed that Mr Tariq and his representative should be excluded from part of the proceedings when closed evidence and/or documents were being considered, that the Tribunal would consider both open and closed documents and that the Home Office would make available the appropriate closed material to any special advocate appointed.
+It further stated that the terms so ordered would be reviewed at a later case management discussion.
+At a case management discussion held on 30 May 2008, in the presence of representatives of the parties and of Ms J Farbey of counsel nominated by the Attorney General to act as special advocate, the judge ordered that her role as special advocate should take effect and that she should proceed in discussions with Mr Tariq.
+Meanwhile, reasons for the tribunals decision on 15 February 2008 were outstanding.
+The minister, to whom the tribunal was required by rule 10 of the ET National Security Rules to submit such reasons in the first instance, directed that one paragraph be abridged and another omitted.
+As a result, an edited version, identifying the positions of the amendment and abridgement, was initially issued to Mr Tariq and his representatives on 15 October 2008.
+However, on 9 December 2008 the full reasons were released.
+One may speculate that this resulted from submissions made by the special advocate.
+The paragraphs amended and omitted do not, on their face, seem likely to impact on national security.
+This course of events offers therefore a cautionary message, but, quite possibly also, an indication of at least one purpose which a special advocate may serve.
+In the upshot, there is not now any ministerial order in effect under rule 10.
+Whatever objections may be made to a rule giving the executive power to direct the judiciary with regard to reasons do not therefore arise for consideration on this appeal.
+This appeal concerns an exercise by the Tribunal of its power under rule 54(2) of the ET Procedure Rules, read with rule 8 of the ET National Security Rules.
+(b) The European Union Directives
+On behalf of Mr Tariq, Mr Allen submits that rule 54(2) and rule 8 are contrary to European Union law and/or the European Human Rights Convention.
+These rules were made pursuant to the express statutory authority to make such rules conferred by section 10 of the Employment Tribunals Act 1996.
+Mr Allens first submission is that they are, none the less, in conflict with European legal principles governing discrimination, contained in the European Treaties and in the Race and Employment Equality Directives, to which the 1996 Act, the Race Relations Act 1976 and the Employment Equality Regulations must all be read, at least as far as possible, as being subject.
+Mr Allen notes in this connection a contrast between the two Directives.
+The Employment Equality Directive makes express reference to national security, providing in article 2(5): 5.
+This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.
+There is no equivalent provision in the Race Directive.
+Mr Allen suggests that this may be because the Race Directive does not preclude discrimination on grounds of nationality: article 3(2).
+Mr Allen further notes that neither Directive makes express provision for closed hearings, and that the Court of Justice has on more than one occasion made clear that the European Treaties contain no general power for states to derogate from European law and the rights it confers on grounds of public safety or national defence, outside specific situations identified in Treaty articles, none of which applies here: Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1987] QB 129; Case C 337/05 Commission of the European Communities v Italian Republic [2008] ECR I 2173.
+None of these points is, in my view, relevant in the present context.
+I agree with the reasoning and conclusions of Maurice Kay LJ in paras 12 to 22 of his judgment in the Court of Appeal: [2010] ICR 1034.
+The authorities cited by Mr Allen deal with derogation from principles of substantive law, here the rights not to be discriminated against conferred by the Directives.
+The legitimacy of closed hearings and of the use of a special advocate are matters of procedural law.
+Procedure is primarily a matter for national law.
+It is, however, a basic principle of European Union law that national law should provide effective legal protection, by establishing a system of legal remedies and procedures which ensure respect for the relevant right: Case C 312/93 Peterbroeck v Belgian State [1995] ECR I 4599; Case C 432/05 Unibet (London) Ltd v Justitie Kanslern [2007] ECR I 2271.
+In that respect, European Union law directs attention primarily to principles established under articles 5 and 6 of the European Convention on Human Rights as a guide to what constitutes effective legal protection.
+Mr Allen points out that the Directives both contain provisions (article 7(1) of the Race Directive and article 9 of the Employment Equality Directive), whereby: Member states shall ensure that judicial and/or administrative procedures, including where they deem it appropriate conciliation procedures, for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended.
+Further, by articles 8 and 10 respectively of these Directives: Member states shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.
+Again, and as this wording contemplates, it is for each national judicial system to ensure an effective system of legal procedures enabling a claimant to establish facts from which it may be presumed that there has been direct or indirect discrimination.
+In the present case, Mr Allen has not suggested that Mr Tariq has not been able to do this.
+Mr Allen also submits that Mr Tariq could lose his claim by reason of section 42 of the Race Relations Act 1976 and/or regulation 24 of the Employment Equality Regulations on a basis which, by reason of the closed material procedure, would not be disclosed.
+Section 42 and regulation 24 are dealing with substantive law.
+If they were read and applied as excusing what would otherwise be unlawful discrimination, they might therefore be open to challenge under the principle of European Union law identified in para 14 above.
+But the present case is far from involving any such issue.
+First, the issue could only arise from a substantive decision, and the Tribunal is a long way from reaching such a decision.
+Second, it is far from clear that section 42 and regulation 24 are to be read as entitling a tribunal or court to excuse what would otherwise be unjustified discrimination on grounds of national security.
+The question would arise: if it would involve unjustified discrimination, how could the doing of the act be justified for the purpose of safeguarding national security? Third, the Home Offices dominant aim in the present proceedings is to show that there was no discrimination at all on any prohibited ground, but a rational and proportionate decision taken in the public interest.
+If the Employment Tribunal were at some future stage to find that there was discrimination on a prohibited ground, but that the effect of section 42 and/or regulation 24 was that such discrimination could none the less be regarded as justified as being for the purpose of safeguarding national security, the Tribunal would be obliged to identify this basis of decision, however generally, in open reasons, to enable its legitimacy under European Union law to be challenged.
+There is no reason to assume that the Tribunal, assisted as it would also be by a special advocate, would fail to do this.
+(c) Effective legal protection
+The question is therefore whether the closed material procedure authorised by United Kingdom law provides effective legal protection, by establishing a system of legal remedies and procedures to ensure respect for the relevant rights conferred by the Race Relations Act and the Employment Equality Regulations in implementation of the United Kingdoms obligations under the two Directives.
+Mr Allen relies upon the decisions of the Court of Justice in Joined Cases C 402/05 P and C 415/05 P Kadi v Council of the European Union and the General Court in Case T 85/09 Kadi v Commission of the European Union (Council of the European Union intervening).
+These two cases concerned the validity of the European Unions own measures, and the two European Courts were charged not merely with ascertaining and interpreting the relevant European legal principles applicable under the Treaties, but also with applying these to the particular measures and circumstances before them.
+In the former case [2009] AC 1225, the Court of Justice addressed Council Regulation 881/2002 which aimed to mirror within Europe a similar asset freezing regime to that mandated by Security Council Resolutions for all member states of the United Nations.
+The Regulation, in its Annex I, simply listed as persons whose assets were to be frozen persons whose names appeared on a list drawn up by the Security Councils Sanctions Committee, and no opportunity was given before or after its passing to such persons to mount any legal challenge to such listing at either the Security Council or the European level.
+The Court of Justice accepted that: 342 . with regard to a Community measure intended to give effect to a resolution adopted by the Security Council in connection with the fight against terrorism, overriding considerations to do with safety or the conduct of the international relations of the Community and of its Member States may militate against the communication of certain matters to the persons concerned and, therefore, against their being heard on those matters.
+It went on: 343 However, that does not mean, with regard to the principle of effective judicial protection, that restrictive measures such as those imposed by the contested regulation escape all review by the Community judicature once it has been claimed that the act laying them down concerns national security and terrorism. 344 In such a case, it is none the less the task of the Community judicature to apply, in the course of the judicial review it carries out, techniques which accommodate, on the one hand, legitimate security concerns about the nature and sources of information taken into account in the adoption of the act concerned and, on the other, the need to accord the individual a sufficient measure of procedural justice (see, to that effect, the judgment of the European Court of Human Rights in Chahal v United Kingdom (1996) 23 EHRR 413, para 131).
+The Regulation was annulled in respect of Mr Kadi and Al Barakaat (a Swedish foundation) because there had been no procedure for communicating any evidence or for any hearing of persons listed, so that such persons rights of defence and to an effective legal remedy were infringed.
+But the Court postponed the annulment for up to three months from 3 September 2008.
+The second Kadi case [2011] 1 CMLR 697 was a sequel.
+After the first case, the Commission sought and obtained from the Sanctions Committee a summary of its reasons for listing Mr Kadi, communicated that to him and received his comments on it on 10 November 2008.
+On 28 November 2008 the Commission by Commission Regulation (EC) No 1190/2008, made pursuant to a power in Regulation 881/2002 to amend Annex I to that Regulation, recited this course of events and purported on that basis to amend Annex I to reinsert Mr Kadi and Al Barakaat.
+Mr Kadi again successfully challenged this.
+The General Court held that his rights of defence had been observed only in the most formal and superficial sense, as the Commission in actual fact considered itself strictly bound by the Sanctions Committees findings and therefore at no time envisaged calling those findings into question in the light of the applicants observations (para 171).
+The General Court went on to say that the Commission, notwithstanding recitals in its Regulation, failed to take due account of the applicants comments (para 172) and that the procedure followed by the Commission, in response to the applicant's request, did not grant him even the most minimal access to the evidence against him.
+In actual fact, the applicant was refused such access despite his express request, whilst no balance was struck between his interests, on the one hand, and the need to protect the confidential nature of the information in question, on the other (see, in that regard, the judgment of the Court of Justice in Kadi, paras 342 to 344) (para 173).
+The General Court noted that this conclusion was consistent with the reasoning on the European Court of Human Rights in A v United Kingdom [2009] 49 EHRR 625 (para 176).
+Earlier in its judgment, at paras 146 147, the General Court said this about national security issues, with reference to its previous judgment in Case T 228/02 Organisation des Modjahedines du Peuple d'Iran v Council of the European Union [2006] ECR II 4665 (OMPI): 146 The General Court also noted in that regard, at para 156 of OMPI, that, although the European Court of Human Rights recognises that the use of confidential information may be necessary when national security is at stake, that does not mean, in that court's view, that national authorities are free from any review by the national courts simply because they state that the case concerns national security and terrorism (see the judgment of the European Court of Human Rights in Chahal v United Kingdom, para 131, and case law cited, and its judgment in calan v Turkey (2003) 37 EHRR 238, para 106 and case law cited). 147 The General Court added, at para 158 of OMPI, that it was not necessary for it to rule, in the action before it, on the separate question as to whether the applicant and/or its lawyers could be provided with the evidence and information alleged to be confidential, or whether they had to be provided only to the Court, in accordance with a procedure which remained to be defined so as to safeguard the public interests at issue whilst affording the party concerned a sufficient degree of judicial protection.
+The question identified by the General Court in para 147 did not arise for decision in either of the two Kadi cases.
+It is, however, clear from both Kadi cases that the Court of Justice will look for guidance in the jurisprudence of the European Court of Human Rights when deciding whether effective legal protection exists, and how any balance should be struck when a question arises whether civil procedures should be varied to reflect concerns relating to national security.
+A national court, faced with an issue of effective legal protection or, putting the same point in different terms, access to effective procedural justice, can be confident that both European courts, Luxembourg and Strasbourg, will have the same values and will expect and accept similar procedures.
+Article 6(2) of the Treaty on the European Union (The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law) and the Charter of Fundamental Rights already point strongly in this direction.
+Assuming that the European Union will in due course formally subscribe to the European Convention on Human Rights, as contemplated by the Treaty amendments introduced under the Treaty of Lisbon, the expectation will receive still further reinforcement.
+In the present case, the Home Office applied for and obtained the Tribunals order for a closed material procedure in order to be able to defend itself against Mr Tariqs claim that the removal of his security clearance involved unlawful discrimination on grounds of race or religion.
+The case concerns a different subject matter from that of both Kadi cases, where freezing orders were in issue.
+The effect of freezing orders (made under United Kingdom legislation directly implementing the Security Councils Resolutions) was examined by the Supreme Court in A v HM Treasury (JUSTICE intervening) [2010] UKSC 2; [2010] 2 AC 534.
+Persons subject to such orders became effectively prisoners of the state and there was a devastating effect on them and their families: para 60.
+A v United Kingdom, to which the General Court in Kadi referred, also involved a different subject matter to the present, concerning, as it did, the detention of foreign nationals suspected of terrorist involvement.
+Rights said that: In A v United Kingdom 49 EHRR 695 the European Court of Human 216 The Court takes as its starting point that, as the national courts found and it has accepted, during the period of the applicants detention the activities and aims of the AlQaeda network had given rise to a public emergency threatening the life of the nation.
+It must therefore be borne in mind that at the relevant time there was considered to be an urgent need to protect the population of the United Kingdom from terrorist attack and, although the United Kingdom did not derogate from article 5(4), a strong public interest in obtaining information about AlQaeda and its associates and in maintaining the secrecy of the sources of such information (see also, right under article 5(4) in this connection, Fox, Campbell and Hartley (1991) 13 EHRR 157, para 39). 217 Balanced against these important public interests, however, was the applicants' to procedural fairness.
+Although the Court has found that, with the exception of the second and fourth applicants, the applicants detention did not fall within any of the categories listed in sub paragraphs (a) to (f) of article 5(1), it considers that the case law relating to judicial control over detention on remand is relevant, since in such cases also the reasonableness of the suspicion against the detained person is a sine qua non (see para 197 above).
+Moreover, in the circumstances of the present case, and in view of the dramatic impact of the lengthy and what appeared at that time to be indefinite deprivation of liberty on the applicants' fundamental rights, article 5(4) must import substantially the same fair trial guarantees as article 6(1) in its criminal aspect (Garcia Alva v Germany (2003) 37 EHRR 335, para 39, and see also see Chahal, cited above, paras 130 131). 218 Against this background, it was essential that as much information about the allegations and evidence against each applicant was disclosed as was possible without compromising national security or the safety of others.
+Where full disclosure was not possible, article 5(4) required that the difficulties this caused were counterbalanced in such a way that each applicant still had the possibility effectively to challenge the allegations against him. 219 The Court considers that SIAC, which was a fully independent court (see para 84 above) and which could examine all the relevant evidence, both closed and open, was best placed to ensure that no material was unnecessarily withheld from the detainee.
+In this connection, the special advocate could provide an important, additional safeguard through questioning the states witnesses on the need for secrecy and through making submissions to the judge regarding the case for additional disclosure.
+On the material before it, the Court has no basis to find that excessive and unjustified secrecy was employed in respect of any of the applicants' appeals or that there were not compelling reasons for the lack of disclosure in each case. 220 The Court further considers that the special advocate could perform an important role in counterbalancing the lack of full disclosure and the lack of a full, open, adversarial hearing by testing the evidence and putting arguments on behalf of the detainee during the closed hearings.
+However, the special advocate could not perform this function in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate.
+While this question must be decided on a case by case basis, the Court observes generally that, where the evidence was to a large extent disclosed and the open material played the predominant role in the determination, it could not be said that the applicant was denied an opportunity effectively to challenge the reasonableness of the Secretary of State's belief and suspicions about him.
+In other cases, even where all or most of the underlying evidence remained undisclosed, if the allegations contained in the open material were sufficiently specific, it should have been possible for the applicant to provide his representatives and the special advocate with information with which to refute them, if such information existed, without his having to know the detail or sources of the evidence which formed the basis of the allegations.
+An example would be the allegation made against several of the applicants that they had attended a terrorist training camp at a stated location between stated dates; given the precise nature of the allegation, it would have been possible for the applicant to provide the special advocate with exonerating evidence, for example of an alibi or of an alternative explanation for his presence there, sufficient to permit the advocate effectively to challenge the allegation.
+Where, however, the open material consisted purely of general assertions and SIAC's decision to uphold the certification and maintain the detention was based solely or to a decisive degree on closed material, the procedural requirements of article 5(4) would not be satisfied.
+In Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28; [2010] 2 AC 269, the House of Lords applied the reasoning in para 220 of A v United Kingdom when concluding that a closed material procedure involving a special advocate could be legitimate in the context of the imposition of a control order on a suspected terrorist, so long as the case was not based solely or to a decisive extent on closed material.
+Mr Allen submits that the fundamental nature of equality rights makes it just as critical that Mr Tariq should receive the fullest procedural rights in this case as it was for Mr Kadi or A or AF to have such rights.
+However, the reasoning in para 217 of the European Court of Human Rights judgment in A v United Kingdom emphasises the context of that decision, the liberty of the individual.
+Detention, control orders and freezing orders impinge directly on personal freedom and liberty in a way to which Mr Tariq cannot be said to be exposed.
+In R(AHK) v Secretary of State for the Home Department (Practice Note) [2009] EWCA Civ 287; [2009] 1 WLR 2049, a claim for judicial review of the refusal of an application for British citizenship, the Court of Appeal distinguished A v United Kingdom on the ground that it was focusing on detention.
+In my opinion, it was justified in making this distinction.
+An applicant for British citizenship has, of course, an important interest in the appropriate outcome of his or her application.
+Mr Tariq also has an important interest in not being discriminated against which is entitled to appropriate protection; and this is so although success in establishing discrimination would be measured in damages, rather than by way of restoration of his security clearance (now definitively withdrawn) or of his position as an immigration officer.
+But the balancing exercise called for in para 217 of the European Courts judgment in A v United Kingdom depends on the nature and weight of the circumstances on each side, and cases where the state is seeking to impose on the individual actual or virtual imprisonment are in a different category to the present, where an individual is seeking to pursue a civil claim for discrimination against the state which is seeking to defend itself.
+That the outcome of the balancing exercise may differ with the circumstances is confirmed by three decisions of the European Commission and Court of Human Rights: Leander v Sweden (1987) 9 EHRR 433, Esbester v United Kingdom (1993) 18 EHRR CD72 and Kennedy v United Kingdom (Application No 26839/05) (unreported) 18 May 2010.
+In Leander, the applicant had been refused permanent employment as museum technician with the Naval Museum, which was adjacent to the Karlskrona Naval Base in which the Museum had storage rooms and other objects to which he would need access.
+The refusal was on account of secret information, contained in an annex compiled by the police, which was alleged to make him a security risk and to which he was refused access.
+He claimed that there had been breaches of, inter alia, articles 8 and 13 of the Convention.
+The Court did not accept this.
+Article 8 provides that everyone has the right to respect for his private life, and that there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or other specified interests.
+As to article 8, the Court held that, although there was adverse interference with Mr Leanders private life through the consequences for his access to certain sensitive posts (para 59) and although he was refused any possibility of challenging the correctness of the information concerning him (para 61), the system for collecting and using the secret information contained a number of internal safeguards (para 62) and it could not be concluded that the interference involved in the non communication of the information to Mr Leander was not necessary in a democratic society in the interests of national security, as it is the very absence of such communication which, at least partly, ensures the efficacy of the personnel control procedure (para 66).
+Article 13 provides that everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority.
+As to article 13, the Court in Leander held by a majority (4 to 3) that an effective remedy under article 13 must mean a remedy that is as effective as can be, having regard to the restricted scope for recourse inherent in any system of secret surveillance for the protection of national security (para 84), and that, even if the procedure of complaint to the Government (which Mr Leander had followed and which had led to the Cabinet rejecting his complaint) were not considered sufficient, the aggregate of that and the other remedies of complaint to the Swedish Parliamentary Ombudsman and Chancellor of Justice (which he could also have pursued, although their views would only have been advisory) satisfied the conditions of article 13 (para 84).
+In Esbester 18 EHRR CD72 the Commission was again concerned with a refusal to employ, in this case as an administrative officer with the Central Office of Information (COI).
+The COI having offered to employ Mr Esbester subject to the satisfactory completion of our inquiries ., gave as its reasons for refusal simply that having completed our inquiries . we are unable to offer you an appointment.
+Mr Esbester claimed infringement of articles 8 and 13, maintaining that it was likely that the intelligence services had in the course of negative vetting procedures obtained and relied upon information about his private life, which he had had no opportunity to refute.
+He also alleged that there was inadequate legal regulation regarding the gathering of such information, and that the Security Service Tribunal responsible for investigating complaints gave inadequate protection and was prevented from giving reasons for its decisions.
+The Commission accepted, following Leander, that security vetting based on information about a persons private life constitutes interference within article 8, and it accepted, following Klass v Federal Republic of Germany (1978) 2 EHRR 214 and Malone v United Kingdom (1985) 7 EHRR 14 that the existence in the United Kingdom of a system for secret surveillance for vetting and the circumstances giving rise to the refusal to employ Mr Esbester gave rise to an inference that such interference had taken place.
+But it rejected Mr Esbesters complaints as manifestly unfounded.
+In finding the United Kingdoms system to be in accordance with the law, the Commission noted that the Court had held in Leander that the requirement of foreseeability in the special context of employment vetting in sectors affecting national security cannot be the same as in many other fields.
+In finding that the system was necessary in a democratic society, the Commission said, again with reference to Leander, that regard must also be had in this context to the margin of appreciation of the respondent state which in the area of assessing the requirements of and means of pursuing interests of national security has been held by the Court to be wide.
+In considering whether there existed adequate and effective guarantees against abuse, as required by the Courts decision in Klass, the Commission noted that the term national security was not amenable to exhaustive definition, and that, as regards the lack of reasons for the decisions of the Tribunal, the Court in Klass, when considering a similar problem, had found that the state could legitimately fear that the efficacy of surveillance systems might be jeopardised if information is divulged to the person concerned.
+The Commission concluded its discussion of article 8 by saying that In the absence of any evidence or indication that the system is not functioning as required by domestic law, the Commission finds that the framework of safeguards achieves a compromise between the requirements of defending democratic society and the rights of the individual which is compatible with the provisions of the Convention.
+Consequently it concludes that the interference in the present case was necessary in a democratic society in the interests of national security.
+As to article 13, the Commission held that the complaint of lack of an effective remedy failed in the absence of any arguable claim for breach of article 8.
+In Kennedy v United Kingdom decided by its Fourth Section on 18 May 2010, the Court was concerned with a claim that there had been breaches of articles 6 (the right to a fair trial in the determination of civil rights and obligations), 8 and 13 in circumstances where the claimants requests to MI5 and GCHQ under the Data Protection Act 1998 to discover whether information about him was being processed had been refused on the grounds of national security.
+Complaints about such refusals to the Investigatory Powers Tribunal (IPT) chaired by Lord Justice Mummery were examined in private.
+They concluded with the IPT simply notifying Mr Kennedy that no determination had been made in his favour in respect of his complaints.
+This meant either that there had been no interception or that any interception which took place was lawful (para 20).
+As to article 8, the Court held that the domestic law, practice and safeguards relating to surveillance satisfied the conditions of that article.
+It referred to, inter alia, Leander v Sweden as establishing that the requirement that the consequences of the domestic law must be foreseeable, before any interference could be said to be in accordance with the law under article 8(2), cannot be the same in the context of interception of communications as in many other fields (paras 151 152).
+As to article 6, the Court in Kennedy found it unnecessary to decide whether this article applies to proceedings concerning a decision to put someone under surveillance, because it concluded that, assuming it does, the IPTs rules of procedure complied with the requirements of article 6(1) (para 179).
+The parties respective cases appear from the following paragraphs of the Courts judgment: 181.
+The applicant submitted that even where national security was at stake, a domestic court could not infringe the fair hearing principle in a blanket and uncritical manner.
+He argued that less restrictive measures were available to achieve the aim pursued, including arrangements to protect witnesses' identities, disclosure of documents with redactions approved by the IPT, provision of a summary of particularly sensitive material under the supervision of the IPT and appointment of special advocates to whom disclosure of sensitive material could be made.
+He referred to a recent report on secret evidence published in June 2009 by the non governmental organisation, JUSTICE, which called for the strengthening of disclosure procedures and increased transparency in court proceedings. 182.
+The Government emphasised that even where article 6(1) applied to a field falling within the traditional sphere of public law, this did not in itself determine how the various guarantees of article 6 should be applied to such disputes (citing Vilho Eskelinen v Finland (2007) 45 EHRR 993, para 64).
+The obligation to read the Convention as a whole meant that the scope of the article 6 guarantees in such a case should be in harmony with the Court's approach to judicial control under article 8.
+The Government argued that the overarching consideration was that an individual could not be notified of interception measures while interception was ongoing or where notification would jeopardise the capabilities or operations of intercepting agencies.
+They therefore disputed that the less restrictive measures proposed by the applicant were appropriate.
+They noted that protection of witnesses' identities would not assist in keeping secret whether interception had occurred.
+Nor would disclosure of redacted documents or summaries of sensitive material.
+Further, unless they were appointed in every case, the appointment of special advocates would also allow a complainant to draw inferences about whether his communications had been intercepted. 183.
+The Government argued that the procedure before the IPT offered as fair a procedure as could be achieved in the context of secret surveillance powers.
+In particular, a complainant did not have to overcome any evidential burden to apply to the IPT and any legal issues could be determined in a public judgment after an inter partes hearing.
+Further, the IPT had full powers to obtain any material it considered necessary from relevant bodies and could call upon the assistance of the Commissioner.
+It could appoint an advocate to assist it at closed hearings.
+Finally, in the event that the complainant was successful, a reasoned decision would be provided.
+The Court, in holding that there had been no violation of article 6 or 13 in Kennedy, substantially aligned itself with the United Kingdom Governments position particularly in so far as it endorsed in relation to the concept of a fair trial under article 6 the relevance of similar considerations to those taken into account, previously and in Kennedy itself, when applying articles 8 and 13.
+It held: 184.
+The Court reiterates that according to the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis a vis his opponent .
+The Court has held none the less that, even in proceedings under article 6 for the determination of guilt on criminal charges, there may be restrictions on the right to a fully adversarial procedure where strictly necessary in the light of a strong countervailing public interest, such as national security, the need to keep secret certain police methods of investigation or the protection of the fundamental rights of another person.
+There will not be a fair trial, however, unless any difficulties caused to the defendant by a limitation on his rights are sufficiently counterbalanced by the procedures followed by the judicial authorities (see, for example, Doorson v The Netherlands (1996) 22 EHRR 330, para 70; Jasper v United Kingdom (2000) 30 EHRR 441, paras 51 to 53; and A v United Kingdom (2009) 49 EHRR 625, para 205).
+A similar approach applies in the context of civil proceedings. 185.
+The Court notes that the IPT, in its preliminary ruling of 23 January 2003, considered the applicant's complaints regarding the compliance of the Rules with article 6(1).
+It found that, with the exception of rule 9(6) which required all oral hearings to be held in private, the Rules challenged by the applicant were proportionate and necessary, with special regard to the need to preserve the Government's neither confirm nor deny policy 186.
+At the outset, the Court emphasises that the proceedings related to secret surveillance measures and that there was therefore a need to keep secret sensitive and confidential information.
+In the Court's view, this consideration justifies restrictions in the IPT proceedings.
+The question is whether the restrictions, taken as a whole, were disproportionate or impaired the very essence of the applicant's right to a fair trial. 187.
+In respect of the rules limiting disclosure, the Court recalls that the entitlement to disclosure of relevant evidence is not an absolute right.
+The interests of national security or the need to keep secret methods of investigation of crime must be weighed against the general right to adversarial proceedings (see, mutatis mutandis, Edwards and Lewis v United Kingdom (2005) 40 EHRR 593, para 46).
+The Court notes that the prohibition on disclosure set out in rule 6(2) admits of exceptions, set out in rules 6(3) and (4).
+Accordingly, the prohibition is not an absolute one.
+The Court further observes that documents submitted to the IPT in respect of a specific complaint, as well as details of any witnesses who have provided evidence, are likely to be highly sensitive, particularly when viewed in light of the Government's neither confirm nor deny policy.
+The Court agrees with the Government that, in the circumstances, it was not possible to disclose redacted documents or to appoint special advocates as these measures would not have achieved the aim of preserving the secrecy of whether any interception had taken place.
+It is also relevant that where the IPT finds in the applicant's favour, it can exercise its discretion to disclose such documents and information under rule 6(4) . 188.
+As regards limitations on oral and public hearings, the Court recalls, first, that the obligation to hold a hearing is not absolute.
+There may be proceedings in which an oral hearing is not required and where the courts may fairly and reasonably decide the case on the basis of the parties' submissions and other written materials.
+The character of the circumstances that may justify dispensing with an oral hearing essentially comes down to the nature of the issues to be decided by the competent national court (see Jussila v Finland (2006) 45 EHRR 900, paras 41 to 42).
+The Court notes that rule 9(2) provides that oral hearings are within the IPT's discretion and it is clear that there is nothing to prevent the IPT from holding an oral hearing where it considers that such a hearing would assist its examination of the case. 189.
+Concerning the provision of reasons, the Court emphasises that the extent to which the duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see Ruiz Torija v Spain (1994) 19 EHRR 553, para 29).
+In the context of the IPT's proceedings, the Court considers that the "neither confirm nor deny" policy of the Government could be circumvented if an application to the IPT resulted in a complainant being advised whether interception had taken place.
+In the circumstances, it is sufficient that an applicant be advised that no determination has been in his favour.
+The Court further notes in this regard that, in the event that a complaint is successful, the complainant is entitled to have information regarding the findings of fact in his case . 190.
+In light of the above considerations, the Court considers that the restrictions on the procedure before the IPT did not violate the applicant's right to a fair trial.
+In reaching this conclusion, the Court emphasises the breadth of access to the IPT enjoyed by those complaining about interception within the United Kingdom and the absence of any evidential burden to be overcome in order to lodge an application with the IPT.
+In order to ensure the efficacy of the secret surveillance regime, and bearing in mind the importance of such measures to the fight against terrorism and serious crime, the Court considers that the restrictions on the applicant's rights in the context of the proceedings before the IPT were both necessary and proportionate and did not impair the very essence of the applicant's article 6 rights.
+As regards article 13, the Court held that the IPT offered to the applicant an effective remedy insofar as his complaint was directed towards the alleged interception of his communications and, in respect of the applicants general complaint under article 8, it reiterated its case law to the effect that article 13 does not require the law to provide an effective remedy where the alleged violation arises from primary legislation, citing in this respect also Leander v United Kingdom 9 EHRR 433.
+These three cases Leander, Esbester and Kennedy establish that the demands of national security may necessitate and under European Convention law justify a system for handling and determining complaints under which an applicant is, for reasons of national security, unable to know the secret material by reference to which his or her complaint is determined.
+The critical questions under the Convention are whether the system is necessary and whether it contains sufficient safeguards.
+But, subject to satisfactory answers on these questions, national security considerations may justify a closed material procedure, closed evidence (even without use of a special advocate) and, furthermore, (as in Kennedy itself) a blanket decision leaving the precise basis of determination unclear.
+There is however a further decision, even more recent than Kennedy, on which Mr Allen relies in an opposite sense.
+That is Uukauskas v Lithuania (Application No 16965/04) decided by the Second Section of the Court on 6 July 2010.
+The applicant had a licence to keep a pistol and hunting rifle.
+His request for a licence for another kind of firearm was refused and his existing licence was withdrawn, after his listing by the police in an operational records file maintained by the police to hold data for law enforcement bodies obtained during operational activities.
+He instituted proceedings challenging his listing, and the court, after examining classified material submitted by the police without disclosure to the applicant, upheld the listing.
+He complained to the European Court of Human Rights on the basis that there had been a breach of article 6(1).
+The Court said (para 48): The Court is not insensitive to the goals which the Lithuanian law enforcement authorities pursued through their operational activities.
+Likewise, the Court shares the Government's view that documents which constitute state secrets may only be disclosed to persons who possess the appropriate authorisation.
+And yet the Court notes that Lithuanian law and judicial practice provide that such information may not be used as evidence in court against a person unless it has been declassified, and that it may not be the only evidence on which a court bases its decision (see paras 20 22 above).
+It went on to indicate that the file was the only evidence of the applicants alleged danger to society, that he had repeatedly asked for its disclosure to him, even in part, and that, without it, he had no possibility of being apprised of the evidence against him or of being able to respond to it (paras 50 51).
+The Court concluded (para 51): In conclusion, therefore, the Court finds that the decision making procedure did not comply with the requirements of adversarial proceedings or equality of arms, and did not incorporate adequate safeguards to protect the interests of the applicant.
+It follows that there has been a violation of article 6(1) in the present case.
+The case has the special feature that the procedure adopted was contrary to Lithuanian law.
+Quite probably for this reason, no reference was made to any of the decisions considered in paras 28 to 36 of this judgment.
+There was evidently also no procedure under Lithuanian law for the use of a special advocate to consider closed material: the choice lay between declassification and no use of the material at all.
+The decision is therefore very far from the present, and does not offer assistance on the issues which arise on this appeal.
+(d) Necessity for a closed material procedure in this case
+In the present case, Mr Allen submits that no necessity is shown for a closed material procedure.
+He submits that the rule of law and the maintenance of the modern democratic state [will] not [be] imperilled if the Home Office loses this case for want of advancing a secret case.
+In other words, the worst that may happen is that the Home Office has to pay an unmeritorious claim.
+On this basis, Mr Allen distinguishes control order cases such as AF (No 3), in which it could be said that national security would be directly imperilled if secret evidence could not be used to justify imposing a control order.
+This distinction would positively encourage unmeritorious claims; and it would on any view mean that the government could only operate a security vetting system on pain of having to accept or pay all claims for discrimination which appeared sufficiently arguable to avoid being dismissed as abusive.
+The only other possibility is that a court might, following the Court of Appeal decision in Carnduff v Rock [2001] EWCA Civ 680, [2001] 1 WLR 1786, determine that, if the national security material could not be deployed in defence, the claim might not be fairly justiciable at all.
+Laws LJ said of this situation in Carnduff (para 36) that . a case which can only be justly tried if one side holds up its hands cannot, in truth, be justly tried at all.
+Under that possibility, it would be Mr Tariqs case which would fail in limine.
+Neither of these possibilities is one which the law should readily contemplate.
+In the penal context, an accused is presumed innocent until proved guilty; there is a public interest in the trial of suspects before a court, but it is better that the state should forego prosecution than that there should be any risk of an innocent person being found guilty through inability to respond to the full case against them.
+These imperatives do not operate in quite the same way in a civil context like the present, where the state may not be directly involved as a party at all.
+The rule of law must, so far as possible, stand for the objective resolution of civil disputes on their merits by a tribunal or court which has before it material enabling it to do this.
+In considering how this may be achieved, if a defendant can only defend itself by relying on material the disclosure of which would damage national security, a balance may have to be struck between the interests of claimant and defendant in a civil context.
+Mr Allens submission also involves anomalies.
+The Leander, Esbester and Kennedy cases demonstrate that, had Mr Tariq been claiming that the decision to suspend or remove security clearance was unjustified on its merits, he could not have complained about the use of a closed material procedure.
+Yet, on Mr Allens submission, all such a claimant would (presumably) have to do would be to claim damages, rather than any other relief.
+The Home Office could still only defend the claim by disclosing material contrary to the national interest; but, on Mr Allens case, no problem arises: the Home Office would not have to damage the national interest by making disclosure; instead, it could simply admit liability or defend fruitlessly and lose for want of being able to deploy the material.
+I cannot think that that is the law, in Strasbourg or domestically.
+(e) The acceptability of a special advocate procedure
+I do not therefore consider that a closed material procedure is in principle inconsistent with the right to an effective remedy in respect of alleged discrimination or with the Human Rights Convention.
+But there are further strings to Mr Allens case, which call for closer examination of the actual procedure, in particular the use of a special advocate.
+A special advocate procedure has been accepted as potentially useful in both United Kingdom and Strasbourg case law.
+Thus, in A v United Kingdom, addressing the issue of detention of terrorist suspects without trial, the Court of Human Rights said (para 220): The Court further considers that the special advocate could perform an important role in counterbalancing the lack of full disclosure and the lack of a full, open, adversarial hearing by testing the evidence and putting arguments on behalf of the detainee during the closed hearings.
+However, the special advocate could not perform this function in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate.
+The Court went on: While this question must be decided on a case by case basis, the Court observes generally that, where the evidence was to a large extent disclosed and the open material played the predominant role in the determination, it could not be said that the applicant was denied an opportunity effectively to challenge the reasonableness of the Secretary of State's belief and suspicions about him.
+In other cases, even where all or most of the underlying evidence remained undisclosed, if the allegations contained in the open material were sufficiently specific, it should have been possible for the applicant to provide his representatives and the special advocate with information with which to refute them, if such information existed, without his having to know the detail or sources of the evidence which formed the basis of the allegations.
+It concluded by saying that where the open material consisted of general assertions and the decision to maintain the detention was based solely or to a decisive degree on closed material, the procedural requirements of article 5(4) would not be satisfied.
+Domestically, the House of Lords in both Secretary of State for the Home Department v MB [2007] UKHL 46; [2008] AC 440 and Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269 accepted a special advocate procedure, while endorsing in AF (No 3) the applicability, in the context of control orders, of the approach taken in A v United Kingdom.
+Mr Allen draws attention to a report of the Joint Committee on Human Rights of the Houses of Lords and Commons on Counter Terrorism Policy and Human Rights (Session 2006 2007) (HL Paper 157, HC 394), published 30 July 2007, which precedes the cases mentioned in the previous paragraph.
+The Committee was addressing the use of special advocates in, in particular, control order proceedings, but it also heard evidence from four special advocates (including Ms Farbey who acts in this case), which ranged more widely.
+It identified a number of concerns.
+These included, first, the overriding duty to which it saw both SIAC and a court as being subject, to ensure that material was not disclosed contrary to the public interest, in other words its inability to balance the interests of justice to the individual against the public interest in non disclosure (paras 196 and 199).
+It was also concerned by, secondly, the difficulties presented if closed material was not gisted (paras 195 and 199) and, thirdly, the inflexibility of the prohibition on communication between special advocates and the person concerned or his or her legal representatives, once the special advocate had seen the closed material (paras 203 and 205).
+The first of these concerns is covered and resolved by case law subsequent to the Joint Committees Report.
+Under rule 54(2) the employment tribunal or judge has a discretion.
+This is subject to rule 54(4), according to which a tribunal or judge, when exercising its or his functions, shall ensure that information is not disclosed contrary to the interests of national security.
+But the tribunal or judge is subject to the overriding objective to deal with cases justly under regulation 3 of the Employment Procedure Regulations, and, most importantly also, obliged under section 3 of the Human Rights Act 1996 to interpret primary and secondary legislation in a way which is compatible with Convention rights.
+In Secretary of State for the Home Department v MB [2008] AC 440 (decided 31 October 2007), the House of Lords held that paragraph 4(3)(d) of the Prevention of Terrorism Act 2005 (the terms of which parallel those of rule 54(2)) should be read and given effect except where to do so would be incompatible with the right . to a fair trial (para 72, per Lady Hale; and see paras 84 and 92 per Lord Carswell and Lord Brown).
+The result was that, when and if the court did not consider that material could safely remain closed, the Secretary of State had a choice: either to disclose to the person concerned, or to withdraw reliance on the material.
+The House followed and applied this reasoning in Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269, when deciding that persons subject to control orders must be told the gist of the case against them.
+Applying it in the context of the present secondary legislation in rule 54(2), it means that, even if disclosure of material to the person concerned might involve some potential damage to national security, an employment tribunal or court might, weighing the interests of justice, conclude that either the state should make such disclosure, not merely to the special advocate but also to the person concerned, or it should withdraw any reliance on the material.
+Likewise, in relation to the third concern, it is a matter of discretion how far such contact is permitted, and the tribunal or judge can and should exercise such discretion flexibly and after balancing the competing interests.
+The second concern involves consideration of the case law and issue discussed in paras 28 to 37 above and 63 to 68 below.
+Mr Allen submits, first, that, despite the general endorsement of its potential appropriateness in these cases, the special advocate procedure involves flaws undermining its acceptability; and, secondly, that, even if the special advocate procedure is otherwise acceptable, this can only be on the basis of disclosure of the substance of the Home Offices case (gisting) in respect of Mr Tariq.
+Since the Court of Appeal accepted this second submission, it arises for consideration as a result of the Home Offices cross appeal.
+The flaws which Mr Allen identifies relate to the special advocates role and powers and the lack of guidance as to their exercise or supervision.
+These are matters of detail which he submits have gone largely and unjustifiably without scrutiny in previous cases.
+As to role, Mr Allen takes issue at the outset with the appointment of special advocates by the Attorney General who is the governments principal legal adviser.
+This is a point which was addressed and is the subject of previous authority in the form of the House of Lords decision in R v H [2004] UKHL 3; [2004] 2 AC 134, where the suitability of the Attorney General to act in this respect had been questioned in the courts below.
+Lord Bingham giving the unanimous opinion of the House said (para 46): In our opinion such doubt is misplaced.
+It is very well established that when exercising a range of functions the Attorney General acts not as a minister of the Crown (although he is of course such) and not as the public officer with overall responsibility for the conduct of prosecutions, but as an independent, unpartisan guardian of the public interest in the administration of justice: see Halsbury's Laws of England, 4th ed, vol 44(1) (1995), para 1344; Edwards, The Law Officers of the Crown (1964), pp ix, 286, 301 302.
+It is in that capacity alone that he approves the list of counsel judged suitable to act as special advocates or, now, special counsel, as when, at the invitation of a court, he appoints an amicus curiae.
+Counsel roundly acknowledged the complete integrity shown by successive holders of the office in exercising this role, and no plausible alternative procedure was suggested.
+It would perhaps allay any conceivable ground of doubt, however ill founded, if the Attorney General were to seek external approval of his list of eligible advocates by an appropriate professional body or bodies, but such approval is not in current circumstances essential to the acceptability of the procedure.
+Special advocates are appointed from the independent bar or solicitor advocates on the basis of open competition, and are selected for inclusion on the panel on the basis of their abilities.
+Mr Tariq was able to make representations as to the choice of his special advocate, in accordance with para 98 of the Treasury Solicitors Special Advocates Guide, Special Advocates A Guide to the Role of Special Advocates and the Special Advocates Support Office (SASO).
+His suggested choice was appointed.
+Para 88 of the Special Advocates Guide further makes clear that: The role of the Attorney General (or Solicitor General, acting in his place by virtue of section 1 Law Officers Act 1997) in appointing a special advocate is purely formal.
+No 'instructions' (other than in the purely formal sense) will come from the Law Officers to special advocates indicating any particular way that the case in which the special advocate is instructed is to be argued.
+That is a matter for special advocates and the appellant, to the extent that the appellant engages with the special advocates.
+Mr Allens first point on role is therefore one I reject.
+Mr Allen next submits that special advocates are subject to a conflict of interest which would be prohibited in private litigation.
+This is said to arise from the fact that they are supported by a unit (SASO) which is located within the Treasury Solicitors Department.
+It is not disputed (or disputable) that legal and administrative support is necessary for a special advocate procedure to work; and it is unclear as to where else such support might or should be located.
+The submission is simply that there is an impermissible conflict of interest.
+Reliance is placed on the Solicitors Code of Conduct 2007.
+Rule 3 precludes a solicitor from acting (without informed consent) where there is a conflict of interests defined as existing where, inter alia, the solicitor or his firm owes separate duties to act in the best interests of two or more clients in relation to the same or related matters, and those duties conflict, or there is a significant risk that those duties may conflict.
+Mr Allen further submits that there is no sufficient Chinese wall between SASO and the remainder of the Treasury Solicitors Office to enable reliance on that possibility, which was discussed in the House of Lords in Prince Jefri Bolkiah v KPMG [1999] 2 AC 222.
+In my opinion, these objections also fail.
+As to the former, the Treasury Solicitor does not have two clients and is not in breach of the professional code.
+The special advocate is an independent (security cleared) member of the bar or solicitor advocate, who is not professionally engaged by or on behalf of Mr Tariq, though he or she is charged to represent Mr Tariqs interests.
+As the Special Advocates Guide states (para 113): Actual conflicts of interest in the usual sense do not arise, since a special advocate owes no duty to the person whose interests he represents.
+However, a special advocate should be careful to ensure that no situation arises in which there could be any perception of anything other than absolute independence on his part.
+The Guide then reminds special advocates of the need for care to avoid any perceived conflict of interest when undertaking the role as well as in the future.
+SASO, which supports special advocates, operates for all practical purposes as a separate unit, with an established Chinese wall arrangement dividing it from the rest of the Treasury Solicitors Office.
+Maurice Kay LJ set out the position (para 30): SASO was set up in 2006 in response to the recommendation of the Constitutional Affairs Select Committee in its report on the operation of the Special Immigration Appeals Commission and use of SAs [special advocates] (7th report, session 2004 2005, 3 April 2005).
+The functions of SASO are described in Special Advocates A Guide to the Role of Special Advocates and the Special Advocates' Support Office, which is published on the Treasury Solicitor's Department's website.
+It is SASO that provides an SA with formal instructions.
+It also provides legal and administrative support to SAs and acts as the librarian of closed case law for them.
+Although formal instructions originate with SASO, it has no input into decisions such as whether to appeal a closed adverse judgment or to open part of a closed judgment.
+Such matters are for the independent judgment of the SA alone.
+Although SASO is physically located within the premises of the Treasury Solicitor at One Kemble Street, it has an established Chinese wall arrangement and is for all practical purposes a separate entity.
+It comprises five lawyers and three administrators.
+Four lawyers and two administrators form the SASO (closed) team, the remaining lawyer and administrator forming the SASO (open) team.
+The open team does not have security clearance.
+It alone communicates with the litigant's open representatives.
+Although other relevant litigation teams within the office of the Treasury Solicitor are able to share their facilities, this is not so in relation to SASO's resources and facilities.
+It has completely separate document handling, communication, storage and technology facilities.
+The four lawyers who carry out casework on cases in which the SAs are instructed do not carry out any work for any other part of the Treasury Solicitor's office.
+The fifth lawyer is at Grade 6 level.
+He does not have his own casework in relation to cases involving SAs.
+His role is more supervisory and he has a wider line management role which extends to the general private law litigation team.
+He may report to the Attorney General but only in relation to open issues in matters where SAs are instructed.
+In addition, in order to protect the independence of the SASO team, there are conflict checks to ensure that other members of the private law team do not act in cases which are in any way relevant to SASO.
+Mr Allen challenges the adequacy of this system.
+The information about its operation based on the Special Advocates Guide was amplified by a Home Office note produced during the Court of Appeal hearing.
+Mr Tariq invites scepticism about information provided in the context of litigation in which, he suggests, the Treasury Solicitor has an interest in the status quo.
+The information that SASO operates on a Chinese wall basis with the Treasury Solicitor teams who represent the Government in cases in which special advocates appear is however contained in the Special Advocates Guide (para 87).
+The arrangements described in both documents evidence a serious intention to achieve such a separation, and there is no reason to doubt their genuineness or efficacy.
+Significantly, as Maurice Kay LJ indicated in the passage quoted above, the position is that, although formal instructions originate with SASO, SASO has no input into special advocates decisions, which are taken only by the relevant independent special advocate.
+One can also be confident that, if any special advocate or court at any point suspected that the separation between SASO and other government legal teams was in any way incomplete, this would at once be brought to light.
+Maurice Kay LJ, based on his own experience, commented (para 32): If I may be permitted a subjective observation: if such problems were evident they would be expected to provoke adverse judicial comment but, in my experience, the system, although inherently imperfect, enjoys a high degree of confidence among the judges who deal with cases of this kind on a regular basis.
+In these circumstances, Mr Allen focuses on the fifth of the five SASO lawyers, a grade 6 lawyer who has no case work responsibility at all, but who does have a line management role in relation to both the SASO team and the Treasury Solicitors general private law team.
+He also chairs the monthly special advocates meetings at which cases and tactics are discussed, the minutes of which are sent to the Attorney Generals office, and he may occasionally brief the Attorney Generals office on open issues only.
+After pointing out that a person in Mr Tariqs position will instruct the special advocate before any closed material procedure begins, Mr Allen suggests that the description given of the grade 6 lawyers activity means that the content of such instructions could be shared with parts of the Treasury Solicitors office outside the SASO team or even with the Attorney General.
+I do not regard this as realistic.
+Substantive legal decisions are, as stated, taken by the special advocate.
+The grade 6 lawyer has no case work responsibility, and would not on the face of it be likely even to know of any instructions given by Mr Tariq.
+Even if he did know, disclosure to anyone outside the SASO team would involve a serious breach of his duty.
+There is no reason to think that minutes of the monthly meeting circulated to the Attorney Generals office would disclose such instructions, and the special advocate would presumably receive them and ensure that they did not.
+There is also no reason to think any briefing of the Attorney Generals office could or would go into detail about individual cases, still less about instructions given by Mr Tariq.
+It is clear that the Attorney General has no role and no detailed knowledge in relation to individual cases.
+In Prince Jefri Bolkiah v KPMG [1999] 2 AC 222 the House was concerned with accountants (KPMG) who were in possession of information confidential to a former client (Prince Jefri) which might be relevant to instructions which they then accepted from the Brunei Investment Agency, of which Prince Jefri had been chairman, to investigate the whereabouts of certain assets suggested to have been used by Prince Jefri for his own benefit.
+The House granted an injunction restraining KPMG from acting for the Agency.
+It held that the burden was on KPMG to show that there was no risk of the information coming into the possession of those within KPMG acting for the Agency.
+KPMG had attempted to erect a Chinese wall, but this was ad hoc and within a single department; further the two teams involved one which had acted for Prince Jefri and the one which was acting for the Agency contained large and rotating memberships of persons accustomed to working with each other.
+In these circumstances, the House held that, although there was no rule of law that Chinese walls or other similar arrangements were insufficient, nevertheless, to eliminate the risk, an effective Chinese wall needs to be an established part of the organisational structure of the firm, not created ad hoc and dependent on the acceptance of evidence sworn for the purpose by members of staff engaged on the relevant work (per Lord Millett, at p 239D E).
+The present case falls into an opposite category.
+SASO has a small team which works separately under arrangements which are not ad hoc, but well established, and it uses the services of independent outside special advocates, who can be relied upon to reinforce the culture and reality of such separation.
+There is no reason to doubt the genuineness and efficacy of the Chinese wall which has been set up in this way to service special advocates needs, in particular by providing assistance described in para 90 of the Special Advocates Guide.
+Mr Allen makes other further criticisms of the arrangements for special advocates: he submits that special advocates lack supervision, that there is insufficient guidance as to their role and that they lack any or sufficiently defined powers in respect of matters such as disclosure, the calling and cross examination of witnesses and appeal.
+I do not regard these criticisms as well founded or as rendering the whole closed material procedure unfair.
+Special advocates are experienced independent practitioners, accustomed to act of their own initiative and to take difficult decisions, and able to raise points of doubt or difficulty with the tribunal or court before which they appear.
+The special advocates role is familiar in a variety of contexts.
+It has been extensively described in the Special Advocates Guide.
+It divides into two parts, the open and closed.
+The Guide notes that throughout the open part, where the parties are exchanging open material, the special advocate will have the opportunity to meet the person in whose interests he or she is to act and to obtain as good an understanding as possible of his or her case (paras 99 100).
+Once the open stages have been completed the Secretary of State will serve his or her closed material upon the special advocate only (paras 101 102).
+The Guide goes on (para 102): The receipt of closed material marks the end of the period in which the special advocate may communicate directly with the appellant.
+It should be noted that communication with the appellant is still possible at this point but any communication from the special advocate to the appellant after this time requires the permission of the Court and the proposed format of it must be notified to the Secretary of State who can make objections if he so wishes (see SIAC Rule 36(4) and CPR 76.25(4)).
+During the closed phase, the special advocates role was summarised by Sedley LJ in Murungaru v Secretary of State for the Home Department [2008] EWCA Civ 1015, [2009] INLR 180 in this way at para 17: The ways in which a special advocate will seek to represent the interests of an appellant are, first, to test by cross examination, evidence and argument the strength of the case for non disclosure.
+Secondly, to the extent that non disclosure is maintained, the special advocate is to do what he or she can to protect the interests of the appellant, a task which has to be carried out without taking instructions on any aspect of the closed material.
+In relation to the protection of the interests of the person in Mr Tariqs position in relation to disclosure after the closed phase has begun, the Guide amplifies the special advocates role (in the largely parallel context of his or her role in proceedings before SIAC) as follows (para 103): It is now for the special advocate to take a view himself on the material and to decide whether any of what is contained within the closed material should in fact be made open (and therefore be disclosed to the appellant) because its disclosure would not harm the public interest e.g. the material is already in the public domain or could not be regarded as damaging to national security or other public interests.
+Sometimes, the special advocate will submit that a summary or gist of the material could be safely disclosed to the appellant.
+The special advocate has a period after service of the closed material in which to consider and prepare written submissions on what, if any, of the 'closed' material should become open.
+These are known as rule 38 submissions in SIAC and rule 29 submissions in Control Order proceedings (although they are in fact governed by CPR 76.29).
+These submissions may also include requests to the Secretary of State for further information or documents to be provided to the special advocate.
+This period has usually in SIAC been a period of two to three weeks (although no period is specified see SIAC Rules rule 38(3)).
+In the CPR, similar provisions specify a period of two weeks for the special advocate to indicate whether he challenges the Secretary of state's assessment of what is open and what is closed (see rule 76.29(3)), though the Court may modify it in appropriate circumstances.
+With regard to the hearing on the merits, the special advocate will be present during the open part, when he or she will have the opportunity to observe how the case is put by counsel both for and against the person whose interests the special advocate will be protecting during the closed phase.
+The closed hearing will take place, and all but the special advocate and the Secretary of State will withdraw.
+I see no reason why a special advocate may not, where appropriate, take steps to call factual or expert evidence during the closed phase, if necessary applying for any necessary witness summons.
+The Guide is in my view correct in contemplating this (para 108): There is also a possibility that the special advocate may call his own witnesses.
+This latter has never, to date, been undertaken, certainly not in a SIAC context.
+There appears no reason in principle, however, why this should not be possible, and special advocates in proceedings in the High Court will have the considerable advantage of being able to call on both the remainder of the CPR (insofar as not disapplied) and on the inherent jurisdiction of the Court to achieve such an end.
+In its June 2005 Response to the Constitutional Affairs Select Committee's Report into the Operation of SIAC and the Use of Special Advocates, the Government acknowledged that it is, in principle, open to special advocates in SIAC appeals to call expert evidence.
+On any appeal, it is well established that the special advocate is able both to appear and represent an appellants interests in any closed phase of the appeal.
+Mr Allen suggests that the special advocates role in positively instituting an appeal in relation to events or decisions occurring during the closed phase is insufficiently clear.
+Again (and consistently with Maurice Kay LJs description in para 30, cited in para 50 above) I see no reason why the special advocates role should not embrace this.
+The special advocate may, with the courts permission, communicate with Mr Tariq, even after the closed phase has begun (para 50 above); the court would no doubt permit a special advocate to inform a person in Mr Tariqs position that there were closed matters which merited consideration on appeal, even though such matters could not in any way be disclosed.
+In this way, an appeal could be lodged to enable the special advocate to pursue such matters, although the subject matter and basis of the appeal would remain unknown to the person in Mr Tariqs position.
+Reference to the Court of Justice
+Mr Allen submits that the Supreme Court should refer to the Court of Justice points arising in this case on which European Union law is relevant.
+Article 267 of the Treaty on the European Union provides: The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.
+Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring
+the matter before the Court
+The principles of European Union law which arise for consideration in this case are clear.
+There must in particular be effective legal protection in respect of the rights not to be discriminated against which Mr Tariq invokes, and, so far as guidance is necessary, it is to be found for the relevant purposes in the European Convention on Human Rights and the case law of the European Court of Human Rights.
+The principles which the European Court of Human Rights would apply in the area of national security have been confirmed recently by the decision in Kennedy.
+The questions before the Supreme Court involve the application of such principles to the circumstances of this case, and in particular to the closed material procedure involving a special advocate which the Employment Tribunal has ordered.
+There is on this basis no question of interpretation of the European Treaties which calls for a reference under article 267 as explained by the Court of Justice in Case 283/81 Srl CILFIT v Ministry of Health [1982] ECR 3415.
+It is not the role of the Court of Justice to rule on the application of established general criteria to a particular provision or arrangement, which must be considered in the light of the particular circumstances of the case in question: compare Case C 237/02 Freiburger Kommunalbauten GmbH Baugesellschaft & Co KG v Hofstetter [2004] 2 CMLR 291, paras 21 23, explaining and distinguishing Joined Cases C 240/98 to 244/98 Ocano Grupo Editorial SA v Murciano Quintero [2002] 1 CMLR 1226.
+I add that, if Mr Tariq were to have cause for complaint about the application of the relevant legal principles as established by the European Convention on Human Rights, there will always exist the potential to seek redress in Strasbourg.
+The European Court of Human Rights is not limited to the examination of questions of interpretation or law arising under the Convention, but will re examine the fairness of their application as a whole in the light of the circumstances of the particular case.
+It follows that I would hold that the use of a closed material procedure before the Employment Tribunal was and is lawful in the present case, and dismiss Mr Tariqs appeal accordingly.
+The Home Offices appeal
+It is as well to bear in mind at the outset that the general nature of the Home Offices case has been communicated to Mr Tariq.
+It is that the Home Office was concerned in August 2006 that [Mr Tariq] could be vulnerable to an approach to determine if terrorist suspects had been flagged to the authorities or to smuggle prohibited items airside and that its decision to withdraw security clearance in December 2006 was based on [his] close association with individuals suspected of involvement in plans to mount terrorist attacks and on its view that association with such individuals might make him vulnerable to attempts to exert undue influence on [him] to abuse his position: para 5 above; Mr Tariq must be able to meet this case on a general basis, in particular, by disclosing and describing his relationship and the nature and extent of his association with those of his relatives suspected and his cousin who was ultimately convicted of terrorist activity; and he has, further, on the basis of, in particular, his questioning in interview also been able to mount a sufficiently arguable case of discrimination to avoid any application to strike out his claim: para 6 above.
+What is in issue is the declaration made by the Employment Appeal Tribunal and upheld by the Court of Appeal to the effect that article 6 of the European Convention on Human Rights requires [Mr Tariq] to be provided with the allegations being made against him in sufficient detail to enable him to give instructions to his legal team so that those allegations can be challenged effectively: para 3 above.
+This is worth repeating, because some language used in the Court of Appeal might suggest that Mr Tariq knew nothing at all of the nature of the case against him, as opposed to particular allegations supporting it.
+Thus, for example, Maurice Kay LJ said that, although a closed material procedure was in principle justified, it was none the less the right of a litigant to know the essence of the case against him, if necessary by gisting ([2010] ICR 1034, para 43).
+He went on to acknowledge that, in a particular case, this may put the public authority in the invidious position of having to make difficult decisions about disclosure and whether or how a claim is to be defended, but said that all that is for the future in this litigation.
+It is the consequence of the requirements of justice.
+The Home Office by its appeal challenges this conclusion, pointing out that it raises directly the dilemma addressed by the Court of Appeal in the case of Carnduff v Rock [2001] EWCA Civ 680, [2001] 1 WLR 1786.
+If the disclosure of material would harm national security, but without disclosure the public authority could not defend and would have to capitulate, the claim itself may not be justiciable.
+The appeal raises the question whether there is an absolute requirement that a claimant should him or herself see and know the allegations forming the basis of the states defence in sufficient detail to give instructions to the defence legal team to enable the allegations to be challenged effectively.
+One problem about the declaration made by the Employment Appeal Tribunal and upheld by the Court of Appeal is that it is questionable whether or how far it differs in any significant way from the ordinary duty of any party in any litigation to disclose the nature of its factual allegations, where no issue of national security arises at all.
+A second point is that the declaration made does not correspond with any requirement expressed in section 7 of the Employment Tribunals Act 1996 or in the language of the statutory instruments made under that Act.
+But the submission is no doubt that, if the Convention requires gisting of the nature declared in every case, even though this could damage national security, then the court should under section 3 of the Human Rights Act 1998 find it possible to read into the Employment Tribunals Act 1996 and the ET Procedure Rules and ET National Security Rules introduced under it, some qualification to enable such gisting to occur.
+The question is therefore whether there is in the European Convention on Human Rights, as explained by the European Court of Human Rights, any such absolute requirement, where this would involve the disclosure to Mr Tariq of the detail of allegations which would in normal litigation require to be disclosed, but which the interests of national security require to be kept secret.
+Clearly, it is a very significant inroad into conventional judicial procedure to hold a closed material procedure admissible, if it will lead to a claimant not knowing of such allegations in such detail.
+As the Home Office acknowledges, it is an inroad which should only ever be contemplated or permitted by a court, if satisfied after inspection and full consideration of the relevant material as well as after hearing the submissions of the special advocate, that it is essential in the particular case; and this should be kept under review throughout the proceedings.
+However, to say that it is not possible under the Convention as interpreted by the Court in Strasbourg is in my view impossible, in the light of the clear line of jurisprudence culminating in the Courts decision in Kennedy which I have already discussed in paras 27 to 37 above.
+It is significant that, when the Court of Appeal reached its decision, it did not have the benefit of Kennedy.
+I would therefore allow the Home Offices appeal, and set aside the declaration made below to the effect that there exists an absolute requirement that Mr Tariq personally or his legal representatives be provided with sufficient detail of the allegations made against him to enable him to give instructions to his legal representatives on them.
+As I have indicated, both Mr Tariq and his legal representatives already know of the general nature of the Home Offices case.
+The Employment Tribunal will, with the assistance of the special advocate, keep under review and will be able to determine whether any and what further degree of gisting of the Home Offices case, or of disclosure regarding the detail of allegations made in support of it, is required, having regard to (a) the nature of the relevant allegations and of the national security interest in their non disclosure and in the light of its best judgment as to (b) the significance of such allegations for the Home Offices defence and (c) the significance for Mr Tariqs claim of the disclosure or non disclosure of such allegations to him.
+Employment Tribunals Act 1996, section 10 ANNEX (judgment, para 9) (5) Employment tribunal procedure regulations may make provision enabling a Minister of the Crown, if he considers it expedient in the interests of national security (a) to direct a tribunal to sit in private for all or part of particular Crown employment proceedings; (b) to direct a tribunal to exclude the applicant from all or part of particular Crown employment proceedings; (c) to direct a tribunal to exclude the applicant's representatives from all or part of particular Crown employment proceedings; (d) to direct a tribunal to take steps to conceal the identity of a particular witness in particular Crown employment proceedings; (e) to direct a tribunal to take steps to keep secret all or part of the reasons for its decision in particular Crown employment proceedings. (6) Employment tribunal procedure regulations may enable a tribunal, if it considers it expedient in the interests of national security, to do in relation to particular proceedings before it anything of a kind which, by virtue of subsection (5), employment tribunal procedure regulations may enable a Minister of the Crown to direct a tribunal to do in relation to particular Crown employment proceedings. (7) In relation to cases where a person has been excluded by virtue of subsection (5)(b) or (c) or (6), employment tribunal procedure regulations may make provision (a) for the appointment by the Attorney General . of a person to represent the interests of the applicant; .
+The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861) Schedule 1 The Employment Tribunals Rules of Procedure 54(1) A Minister of the Crown (whether or not he is a party to the proceedings) may, if he considers it expedient in the interests of national security, direct a tribunal or Employment Judge by notice to the Secretary to: (a) conduct proceedings in private for all or part of particular Crown employment proceedings; (b) exclude the claimant from all or part of particular Crown employment proceedings; (c) exclude the claimant's representative from all or part of particular Crown employment proceedings; (d) take steps to conceal the identity of a particular witness in particular Crown employment proceedings. (2) A tribunal or Employment Judge may, if it or he considers it expedient in the interests of national security, by order (a) do in relation to particular proceedings before it anything which can be required by direction to be done in relation to particular Crown employment proceedings under paragraph (1); (b) order any person to whom any document (including any judgment or record of the proceedings) has been provided for the purposes of the proceedings not to disclose any such document or the content thereof: (i) to any excluded person; (ii) in any case in which a direction has been given under [sub ]paragraph (l)(a) or an order has been made under [sub ]paragraph (2)(a) read with sub paragraph (1)(a), to any person excluded from all or part of the proceedings by virtue of such direction or order; or (iii) in any case in which a Minister of the Crown has informed the Secretary in accordance with paragraph (3) that he wishes to address the tribunal or Employment Judge with a view to an order being made under sub paragraph (2)(a) read with sub paragraph (l)(b) or (c), to any person who may be excluded from all or part of the proceedings by virtue of such an order, if an order is made, at any time before the tribunal or Employment Judge decides whether or not to make such an order; (c) take steps to keep secret all or part of the reasons for its judgment.
+The tribunal or Employment Judge (as the case may be) shall keep under review any order it or he has made under this paragraph. (3) In any proceedings in which a Minister of the Crown considers that it would be appropriate for a tribunal or Employment Judge to make an order as referred to in paragraph (2), he shall (whether or not he is a party to the proceedings) be entitled to appear before and to address the tribunal or Employment Judge thereon.
+The Minister shall inform the Secretary by notice that he wishes to address the tribunal or Employment Judge and the Secretary shall copy the notice to the parties. (4) When exercising its or his functions, a tribunal or Employment Judge shall ensure that information is not disclosed contrary to the interests of national security.
+The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Schedule 2 The Employment Tribunals (National Security) Rules of Procedure 8 Special advocate (1) In any proceedings in which there is an excluded person the tribunal or Employment Judge shall inform the Attorney General of the proceedings before it with a view to the Attorney General , if he thinks it fit to do so, appointing a special advocate to represent the interests of the claimant in respect of those parts of the proceedings from which (a) any representative of his is excluded; (b) both he and his representative are excluded; or (c) he is excluded, where he does not have a representative. (2) A special advocate shall have a general qualification for the purposes of section 71 of the Courts and Legal Services Act 1990 or shall be an advocate or a solicitor admitted in Scotland. (3) Where the excluded person is the claimant, he shall be permitted to make a statement to the tribunal or Employment Judge before the commencement of the proceedings, or the part of the proceedings, from which he is excluded. (4) Except in accordance with paragraphs (5) to (7), the special advocate may not communicate directly or indirectly with any person (including an excluded person) (a) (except in the case of the tribunal, Employment Judge and the respondent) on any matter contained in the grounds for the response referred to in rule 3(3); (b) (except in the case of a person who was present) on any matter discussed or referred to during any part of the proceedings in which the tribunal or Employment Judge sat in private in accordance with a direction or an order given or made under rule 54. (5) The special advocate may apply for orders from the tribunal or Employment Judge authorising him to seek instructions from, or otherwise to communicate with, an excluded person (a) on any matter contained in the grounds for the response referred to in rule 3(3); or (b) on any matter discussed or referred to during any part of the proceedings in which the tribunal or Employment Judge sat in private in accordance with a direction or an order given or made under rule 54. (6) An application under paragraph (5) shall be made in writing to the Employment Tribunal Office and shall include the title of the proceedings and the grounds for the application. (7) The Secretary shall notify the Minister of an application under paragraph (5) and the Minister shall be entitled to address the tribunal or Employment Judge on the application. (8) In these rules and those in Schedule I, in any case in which a special advocate has been appointed to represent the interests of the claimant in accordance with paragraph (I), any reference to a party shall (save in those references specified in paragraph (9)) include the special advocate. 10 Reasons in national security proceedings (1) This rule applies to written reasons given under rule 30 of Schedule 1 for a judgment or order made by the tribunal or Employment Judge in national security proceedings. (2) Before the Secretary sends a copy of the written reasons ('the full written reasons') to any party, or enters them in the Register under rule 32 of Schedule I, he shall send a copy of the full written reasons to the Minister. (3) If the Minister considers it expedient in the interests of national security and he has given a direction or the tribunal or an Employment Judge has made an order under rule 54 in those proceedings, the Minister may (a) direct the tribunal or Employment Judge that the full written reasons shall not be disclosed to persons specified in the direction, and to prepare a further document ('the edited reasons') setting out the reasons for the judgment or order, but with the omission of such of the information as is specified in the direction; (b) direct the tribunal or Employment Judge that the full written reasons shall not be disclosed to persons specified in the direction, but that no further document setting out the tribunal or Employment Judge's reasons should be prepared. (4) Where the Minister has directed the tribunal or Employment Judge in accordance with sub paragraph 3(a), the edited reasons shall be signed by the Employment Judge and initialled in each place where an omission has been made. (5) Where a direction has been made under sub paragraph (3)(a), the Secretary shall (a) send a copy of the edited reasons referred to in subparagraph (3)(a) to any person specified in the direction and to the persons listed in paragraph (7); (b) enter the edited reasons in the Register, but omit from the Register the full written reasons; and (c) send a copy of the full written reasons to the persons listed in paragraph (7). (6) Where a direction has been made under sub paragraph (3)(b), the Secretary shall send a copy of the full written reasons to the persons listed in paragraph (7), but he shall not enter the full written reasons in the Register. (7) The persons to whom full written reasons should be sent in accordance with paragraph (5) or (6) are (a) the respondent; (b) the claimant or the claimant's representative if they were not specified in the direction made under paragraph (3); (c) if applicable, the special advocate; (d) where the proceedings were referred to the tribunal by a court, to that court; and (e) where there are proceedings before a superior court (or in Scotland, an appellate court) relating to the decision in question, to that court.
+The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Regulation 2 Definitions excluded person means, in relation to any proceedings, a person who has been excluded from all or part of the proceedings by virtue of: (a) a direction of a Minister of the Crown under rule 54(1)(b) or (c) of Schedule 1, or (b) an order of the tribunal under rule 54(2)(a) read with 54(1)(b) or (c) of Schedule 1; national security proceedings means proceedings in relation to which a direction is given under rule 54(1) of Schedule 1, or an order is made under rule 54(2) of that Schedule; special advocate means a person appointed in accordance with rule 8 of Schedule 2 .
+LORD HOPE
+I agree that, for the reasons so fully set out by Lord Mance in his judgment and the further reasons given by Lord Brown and Lord Dyson, the appeal by the Home Office should be allowed and that the cross appeal by Mr Tariq should be dismissed.
+At the heart of both the appeal and the cross appeal are two principles of great importance.
+They pull in different directions.
+On the one hand there is the principle of fair and open justice.
+As OConnor J declared in Hamdi v Rumsfeld 542 US 507 (2004), 533, parties whose rights are to be affected are entitled to be heard and in order that they may enjoy that right they must first be notified.
+In European Convention terms, this is the principle of equality of arms which is part of the wider concept of a fair trial: Kennedy v United Kingdom (Application No 26839/05) (unreported) 18 May 2010, para 184.
+On the other there is the principle that gives weight to the interests of national security.
+This is one of the legitimate aims referred to in articles 8(2), 10(2) and 11(2) of the Convention.
+The extent of the discretion that must be accorded to the national authorities in this field was recognised in Leander v Sweden (1987) 9 EHHR 433, para 59.
+National security was described as a strong countervailing public interest in Kennedy, para 184.
+But it must be weighed against the fundamental right to a fair trial.
+The context will always be crucial to a resolution of questions as to where and how this balance is to be struck.
+Mr Tariq was employed by the Home Office in a capacity for which security clearance was required in the interests of national security.
+To be effective security vetting will usually, if not invariably, require to be carried out in secret.
+Its methods and the sources of information on which it depends cannot be revealed to the person who is being vetted.
+Those who supply the information must be able to do so in absolute confidence.
+In some cases, their personal safety may depend on this.
+The methods, if revealed to public scrutiny, may become unusable.
+These are the unusual circumstances in which the claim Mr Tariq seeks to make in this case must be determined.
+Mr Tariqs complaint against the Home Offices decision to suspend his security clearance is that it was based on grounds that amounted to direct or indirect discrimination against him on grounds of his race and religion.
+There is no doubt that he is entitled to a fair and public hearing in the relevant tribunal of his claim that the rights conferred on him by the Race Relations Act 1976 and the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660) have been breached.
+The principle of equal treatment is part of European Union law, but it is for national law to ensure that the right to a fair hearing is respected according to the principles established under the European Convention.
+By section 10(6) of the Employment Tribunals Act 1996 it is provided that the employment tribunal procedure regulations may enable a tribunal, if it considers it expedient in the interests of national security, to adopt a closed procedure.
+Section 10(7) of the 1996 Act provides that the procedure regulations may make provision in that event for the appointment by the Attorney General of a special advocate to represent the interests of the applicant.
+The provisions that were made in the exercise of that power are to be found in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861).
+Rule 54 of Schedule 1 to the Regulations provides for the use of closed procedure, and rule 8 of Schedule 2 provides for the appointment of special advocates.
+No one doubts Mr Tariqs right not to be discriminated against on grounds of his race or his religion.
+But it was his own choice to seek employment in a post for which, in the interests of national security, security clearance was required.
+He was a volunteer, not a conscript.
+This is not a case where he is the victim of action taken against him by the state which deprived him of his fundamental rights.
+Furthermore, as I have already indicated, security vetting is a highly sensitive area.
+Its intensity will no doubt vary from case to case, but common to them all is the need to preserve the integrity of sources of information and the methods of obtaining it.
+That must always be the paramount consideration, whatever the nature of the proceedings in which the issue arises.
+It ensures that the national interest is protected when people are appointed to posts where security clearance is required.
+Issues of employment and discrimination law raised by people appointed to those posts may require access to the way this process has been carried out.
+It was no doubt for that reason that the use of the closed procedure and the appointment of special advocates was expressly authorised by the statute.
+The question then is whether the difficulties that Mr Tariq faces in making good his discrimination claim are sufficiently counterbalanced by the procedures that the Home Office wishes the employment tribunal to adopt.
+First, there is the use of the closed procedure for the consideration of the material on which the Home Office wishes to rely in its defence.
+Is the procedure that the Regulations have prescribed for use in national security cases compatible with European Union law? This is the point raised by Mr Tariqs cross appeal.
+Second, if the use of the closed procedure is lawful, how is it to be applied in this case? Is the Home Office obliged to give sufficient detail of the material on which it relies to enable Mr Tariq to give detailed instructions to his special advocate to enable that material to be challenged effectively? This is the point raised by its appeal.
+The Court of Appeal held that the principle illustrated by Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269 must apply.
+This was despite the fact that this would put the Home Office in the invidious position of having to make decisions as to whether, and if so how, the claim was to be defended: [2010] EWCA Civ 462, [2010] ICR 1034, para 50.
+I have found the second issue more troublesome than the first.
+As to the first, which is the issue raised in Mr Tariqs cross appeal, the question is whether the use of the closed procedure in cases of this type impairs the very essence of his right to a fair trial.
+The right to a fair trial itself is an absolute right, but rights that are to be implied from article 6 of the European Convention are not: Brown v Stott [2003] 1 AC 681, 719.
+Their purpose is to give effect, in a practical way, to the fundamental right.
+The right to a fair hearing must ordinarily carry with it the right to have proceedings conducted in open court, with full disclosure by both sides.
+But, for the reasons already mentioned, the use of an open procedure where details of the security vetting process are in issue cannot be resorted to without risk to the integrity of the system which in the national interest must be preserved.
+The observations of the Court of Justice in Joined Cases C 402/05P and C 415/05P Kadi v Council of the European Union [2009] AC 1225, para 344 indicate that European law is willing to accept a closed material procedure in the interests of national security so long as the individual is accorded a sufficient measure of procedural justice.
+That this is the position that the Strasbourg court too has adopted is amply demonstrated by its decisions in Kennedy v United Kingdom, paras 184 190.
+Parliament has expressed a clear democratic judgment that the tribunal may in its discretion make use of the closed procedure with the assistance of a special advocate.
+As for the procedure that the 2004 Regulations provide for, several features indicate that the balance has been struck in the right place.
+First, there is the fact that, under the procedure provided for by rule 54(2) of Schedule 1 to the Regulations, the decision as to whether closed procedure should be resorted to rests with the tribunal or the employment judge.
+The fact that the decision is taken by a judicial officer is important.
+It ensures that it is taken by someone who is both impartial and independent of the executive.
+Second, there is the fact that, as this is a judicial decision, it will not be taken without hearing argument in open court from both sides.
+It will be an informed decision, not one taken without proper regard to the interests of the individual.
+Third, it opens the door to the use of the special advocate.
+Fourth, it is a decision that can and should be kept under review as the case proceeds: see the last sentence of rule 54(2).
+Fifth, the special advocate can and should be heard as the process of keeping it under review proceeds.
+As against all that, account must be taken of the consequences for national security if this procedure were not to be available to the tribunal.
+Without it, there would be a stark choice: to conduct the entire defence in open proceedings however damaging that might be to the system of security vetting, and in particular to those who contributed to it in this case; or to concede the case and accept the consequences.
+They would not only be financial.
+They would lead to the government being seen as an easy target for unjustified claims.
+That would be a field day for the unscrupulous.
+They could lead to tensions if those who were in a position to make discrimination claims were thought to be enjoying an unfair advantage because their claims were not likely to be contested if they were to be pressed to the point of a public hearing.
+I think that the balance lies firmly in favour of allowing the tribunal, in its discretion, to make use of the closed procedure.
+I would dismiss the cross appeal.
+As for the second issue, there is a very real problem.
+Procedural justice indicates that Mr Tariq should be given sufficient information to enable him to give detailed instructions to his special advocate so that she can challenge the withheld material on his behalf.
+But Mr Eadie QC for the Home Office insists that the process of gisting as envisaged in Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269 cannot be resorted to in this case without risk to those who were involved in the security vetting process.
+In the AF (No 3) case I said that what would be needed would vary from case to case, and that the judge would be in the best position to strike the balance between what was needed to enable the special advocate to challenge the case against the individual and what could properly be kept closed: para 86.
+But I also said that if the concept of an effective challenge was to be applied, where detail matters it must be met by detail: para 87.
+That is what Mr Eadie objects to in this case.
+Here again the context for the argument is what matters.
+This is an entirely different case from Secretary of State for the Home Department v AF (No 3).
+There the fundamental rights of the individual were being severely restricted by the actions of the executive.
+Where issues such as that are at stake, the rule of law requires that the individual be given sufficient material to enable him to answer the case that is made against him by the state.
+In this case the individual is not faced with criminal proceedings against him or with severe restrictions on personal liberty.
+This is a civil claim and the question is whether Mr Tariq is entitled to damages.
+He is entitled to a fair hearing of his claim before an independent and impartial tribunal.
+But the Home Office says that it cannot defend the claim in open proceedings as, for understandable reasons, it cannot reveal how the security vetting was done in his case.
+That conclusion is unavoidable, given the nature of the work Mr Tariq was employed to do.
+How then is the balance to be struck here? Mr Tariq will be at a disadvantage if the closed procedure is adopted.
+But the disadvantage to the Home Office is greater, as unless the closed procedure is adopted it will have to concede the claim.
+There is no way that the disadvantage to the Home Office can be minimised.
+It will simply be unable to defend itself.
+It will be unable to obtain a judicial ruling on the point at all.
+That would plainly be a denial of justice.
+The disadvantage to Mr Tariq, on the other hand, is less clear cut.
+He is not entirely without information, as the general nature of the Home Offices case has been disclosed to him.
+He will have the services of the special advocate, with all that that involves second best by far, no doubt, but at least the special advocate will be there.
+His claim will be judicially determined by an independent and impartial tribunal, which can be expected to take full account of the fact that the details of the case for the Home Office have had to be kept closed.
+If inferences have to be drawn because of the quality or nature of the evidence for the Home Office, they will have to be drawn in Mr Tariqs favour and not against him.
+And throughout the process the need for the evidence to be kept closed will be kept under review as rule 54 of Schedule 1 to the Regulations requires, with the assistance of the special advocate.
+There cannot, after all, be an absolute rule that gisting must always be resorted to whatever the circumstances.
+There are no hard edged rules in this area of the law.
+As I said at the beginning, the principles that lie at the heart of the case pull in different directions.
+It must be a question of degree, balancing the considerations on one side against those on the other, as to how much weight is to be given to each of them.
+I would hold that, given the nature of the case, the fact that the disadvantage to Mr Tariq that the closed procedure will give rise to can to some extent be minimised and the paramount need to protect the integrity of the security vetting process, the balance is in favour of the Home Office.
+I would allow the appeal.
+LORD BROWN
+I have read Lord Mances comprehensive judgment and, like him, would allow the Home Offices appeal and dismiss Mr Tariqs cross appeal.
+As to the cross appeal the question whether a closed material procedure in the employment tribunal can ever be compatible with the Race Directive and the Equal Treatment Framework Directive there is almost nothing I wish to add to Lord Mances judgment.
+To my mind plainly it can.
+The submission that it is never necessary for reasons of national security to deploy secret evidence in employment tribunal discrimination proceedings because instead the government can simply pay up I find not merely unpersuasive but wholly preposterous.
+Is it seriously to be suggested that, however unmeritorious such claims may be, the complainant should simply be paid off? Taxpayers money aside, consider the appalling consequences for the governments reputation were there to be a succession of findings of unlawful racial or religious discrimination and the insidious effect of all this upon relations between different racial groups.
+As for the appeal in effect the question whether a complainant in Mr Tariqs position has to be provided with sufficient details of the allegations being made against him (however sensitive the information on which they are based) to enable him to give instructions to his special advocate in order effectively to challenge them I conclude no less clearly that this is not required.
+On this question, however, I wish to add a few further thoughts of my own.
+It is, as I understand it, Mr Tariqs case on the appeal apparently supported by Mr John Howell QC for JUSTICE and Liberty that, assuming (contrary to his primary case) that a closed material procedure is available at all in employment tribunal proceedings, the complainant has exactly the same rights to be provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate as the Grand Chamber in A v United Kingdom (2009) 49 EHRR 625 (at para 220) decided had to be given to those deprived of their liberty at Belmarsh Prison pursuant to the Anti terrorism, Crime and Security Act 2001.
+For simplicitys sake I shall call this degree of disclosure A type disclosure.
+As is well known, the nine Members of the House of Lords sitting in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269 unanimously held that A type disclosure was similarly required in control order cases under the regime established by the Prevention of Terrorism Act 2005 in place of the detention regime.
+Substantially relying on A and on AF (No 3), Mr Allen QC submits that in any special advocate context to which article 6 applies, there is required an irreducible minimum standard of fairness which in every case demands A type disclosure.
+Prominent amongst the passages prayed in aid from the AF (No 3) judgments are, to my considerable surprise, these from my own judgment: . the suspect must always be told sufficient of the case against him to enable him to give effective instructions to the special advocate, notwithstanding that sometimes this will be impossible and national security will thereby be put at risk (para 116).
+Plainly there now is a rigid principle.
+Strasbourg has chosen in para 220 of A to stipulate the need in all cases to disclose to the suspect enough about the allegations forming the sole or decisive grounds of suspicion against him to enable him to give effective instructions to the special advocate (para 119).
+The argument, notwithstanding its apparent acceptance by the Court of Appeal, is to my mind unsustainable.
+As all the judgments in AF (No 3), my own not least, made plain, the Grand Chambers judgment in A was to be regarded as indistinguishable simply because of the striking similarities between the two situations then under consideration: Belmarsh detention and the control order regime.
+To suggest that the identical rigid principle will be imported into every situation where article 6 applies notwithstanding that sometimes this [A type disclosure] will be impossible and national security will thereby be put at risk is absurd.
+It is, indeed, to re assert here the very argument already rejected in relation to the cross appeal: the argument that, if giving effect to A type disclosure will compromise national security, then it is always open to government instead to pay up.
+True it is that in the control order context, government has on a number of occasions since AF (No 3) chosen to abandon the control order rather than make the necessary degree of disclosure.
+That, however, is a far cry from recognising that governments should face the same dilemma in the context of a monetary claim for discrimination.
+Although the Court of Appeal did not regard these cases as being in a different category (para 50 of Maurice Kay LJs judgment below), for my part I strongly disagree.
+Not merely, moreover, is there no support for Mr Allens argument to be found in our domestic jurisprudence but, as Lord Mance convincingly demonstrates, it is now clearly belied by a series of Strasbourg decisions culminating most recently and most decisively in Kennedy v United Kingdom (Application No 26839/05) (unreported) 18 May 2010.
+Kennedy concerned a complaint, largely on article 6 grounds, against the ruling of the Investigatory Powers Tribunal (IPT) made on 23 January 2003 as to the legality of various of their rules.
+A sufficient description of the highly restrictive nature of these rules is to be found at paras 7 and 25 of my judgment in this Court in R (A) v Director of Establishments of the Security Service [2009] UKSC 12, [2010] 2 AC 1 (at paras 8 and 30 of which I noted that the IPTs own decision on these rules was shortly to be considered by the European Court of Human Rights, as now it has been in Kennedy).
+The Court in Kennedy assumed (at para 179 of its judgment) that article 6 applies to proceedings before the IPT and then, at paras 181 190 of its judgment (cited by Lord Mance at paras 34 and 35 above) comprehensively rejected the claim that it had been violated.
+There could hardly be a clearer example of a procedure being held compliant with article 6 notwithstanding the conspicuous absence of anything approaching A type disclosure.
+The final comments I wish to make in the appeal are these.
+Security vetting by its very nature often involves highly sensitive material.
+As an immigration officer, Mr Tariq required security clearance to a comparatively high level (above that of a counter terrorist check albeit below that of developed vetting).
+Immigration officers require long term, frequent and controlled access to secret information and assets.
+It is surely, therefore, not altogether surprising that, upon his brothers and his cousins arrest and more particularly since his cousins conviction and life sentence for conspiracy to murder arising out of a terrorist plot to attack transatlantic flights from Heathrow he has been suspended from duty (albeit continuing to be paid) and his security clearance withdrawn.
+No one suggests that Mr Tariq himself was involved in the plot.
+What is suggested, however, is that he could be vulnerable to pressures from someone in his community to abuse his position as an immigration officer.
+Mr Tariq submitted an internal appeal against the Departmental Security Officers decision to withdraw his security clearance but this was dismissed by the Permanent Secretary of the Home Office (following his consideration of a full report from the Director of Human Resource Services).
+Mr Tariq then made a further appeal to the Security Vetting Appeals Panel (SVAP) (presided over by a retired High Court judge) which held both open and closed hearings, with a special advocate appointed for the closed hearings, and which as recently as January 2011 dismissed the appeal. (No objection is taken to the SVAPs use of a closed procedure and special advocate, apparently on the basis that it was bound to use such a procedure and that in any event its decision on the appeal is solely advisory, the department being free to ignore it.)
+We know nothing of the underlying facts of this case.
+Assume, however, in a case like the present that someone in the employees community (perhaps a relative or associate) has given information in confidence to those responsible for reviewing the employees security clearance which is detrimental to his case.
+Perhaps it belies assurances he has given as to the limited nature and extent of his contacts with those suspected of terrorist activity.
+It surely goes without saying that nothing of this could properly be disclosed to the employee beyond perhaps telling him that the department was not satisfied with the assurances he has given.
+To give chapter and verse of any inconsistencies between those assurances and the information given to the department would be to betray the information provided and quite likely put its provider at risk.
+Similar considerations could well apply even in respect of an initial vetting procedure.
+Is it really sensible, one cannot help wondering, to attempt to force disputes in such cases as these into the comparative straitjacket of employment tribunal proceedings.
+Even if it is, is it sensible to operate in parallel two sets of proceedings, both with closed procedures and special advocates, one before the SVAP, the other before the Employment Tribunal.
+Of course I recognise that the issues they are determining are not identical.
+But there must inevitably be some substantial overlap between them and the effort, time and expense involved in all this hardly bears thinking about.
+In my judgment in R (A) v Director of Establishments of Security Service (at paras 34 and 35) I expressly contemplated that in certain circumstances the IPTs exclusive jurisdiction might with advantage be widened.
+True, I was not considering a case like the present.
+I seriously wonder, however, whether it might not be wise to channel all disputes arising in security vetting cases to a single tribunal if not the IPT itself, then a body sharing some at least of its characteristics.
+That, however, is a thought for the future perhaps for consideration in relation to a Green Paper we are told will be published later this year with regard to possible ways of resolving, or at least mitigating, the undoubted problems faced by Government in litigation raising sensitive security issues.
+LORD KERR
+Introduction
+On 14 February 2008 the Employment Tribunal dealing with Mr Tariqs case sent to the minister a copy of the reasons it proposed to give for making its order under rule 54 of the First Schedule to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861).
+It was required to do so by rule 10 of the Employment Tribunals (National Security) Rules 2004 which are contained in Schedule 2 to the 2004 Regulations.
+The reasons were amended by the minister (or, more probably, by someone acting on his behalf) and were eventually issued to the claimant and his advisers in their amended form on 15 October 2008.
+The reasons that the tribunal proposed to give Mr Tariq related to the way in which his case would be dealt with.
+They purported to explain why he and his representatives would be excluded from those parts of the proceedings at which closed evidence was to be given or closed documents were to be considered; why a special advocate was to be appointed to represent his interests in any part of the proceedings from which he and his representatives were to be excluded; and why the proceedings should be held entirely in private.
+As a means of explaining these matters to Mr Tariq, the reasons given were, to say the least, not informative.
+Para 10 encapsulated them.
+It stated: Having read the relevant documents and having heard submissions, I was satisfied that it was expedient in the interest of national security to make an order under rule 54 as set out in the separate document marked as Orders.
+I was further satisfied that it would be in the interest of the claimant if a special advocate were to be appointed for the matter to be further reviewed, as I am required to do, at the next case management discussion on 1 May 2008 when not only can the issues as to what documents should be in the closed and open bundles and what should be included in the closed and open witness statements be addressed but also any submissions from the special advocate in that regard at that case management discussion in the anticipation that there would have been such an appointment before then.
+Beyond saying that the decisions as to the way in which his case was to be heard had been taken for reasons of national security, this paragraph conveyed precisely nothing to the claimant.
+The paragraphs that had preceded it did little more.
+Apart from rehearsing the submissions that had been made by either party, they said virtually nothing.
+But that did not make them immune from the ministers blue pen.
+In para 5 of the reasons the tribunal had set out (in 5.1, 5.2 and 5.3) the Home Office submissions that the entire proceedings should be held in private; that Mr Tariq and his representative should be excluded while closed evidence or documents were being considered; and that the tribunal should consider both the closed evidence and closed documents and that these would be provided to a special advocate, if one was appointed.
+In its original form, the statement of reasons continued at para 6: The respondents made this application on the basis that given the circumstances and the relationship of the claimant to other parties involved in what was believed to be unlawful activities and the fact that he might have contact with them that there could be inadvertent disclosure by him of information that was either sensitive or classified.
+Now it should be noted that on 30 August 2006, the departmental security officer, Jacqueline Sharland, had met Mr Tariq and his union representative and she had then explained that the review of Mr Tariq's security clearance had been prompted by national security concerns and that these related to Mr Tariq's vulnerability.
+At that meeting Mr Tariq indicated that he understood that the withdrawal of his security clearance had occurred because his brother had been arrested.
+There was no demur from Ms Sharland to this suggestion.
+Despite this, in October 2008, more than two years later, the minister (or a civil servant acting on his behalf) felt that para 6 of the tribunals reasons required amendment.
+He directed that it should be changed so as to read as follows: The respondents made the applications at paras 5.1 5.3 above, on the basis that the material in the closed bundle provided to the tribunal was sensitive on grounds of national security and accordingly should not be disclosed to the claimant or his representative.
+So, although Mr Tariq had been informed by the departmental security officer that his security clearance had been reviewed because he was considered to be vulnerable, and although he had responded that he believed that that had happened because his brother had been arrested, the Home Office view was that it was necessary on national security grounds that he should not be told in October 2008 that others who were believed to be involved in unlawful activities might receive sensitive or classified information that he might inadvertently impart to them.
+It has never been explained why the view was taken that this information could not be disclosed.
+Mystifying though this is, the second change to the statement of reasons directed by the minister is even more inexplicable.
+This required the complete deletion of para 8 of the reasons.
+This paragraph had done no more than summarise an argument made on the respondents behalf in the presence of Mr Tariqs representative, an argument of which, therefore, it must be assumed, he was fully aware.
+It had stated: The respondents further maintained that due to the nature of the contact and the place of contact (the claimant's parents home at which he partially resided with his family during most week ends), it was inappropriate for all these matters to be disclosed on a public basis and that there were matters properly to be dealt with on a closed basis and for the hearing generally to be in private.
+Again no explanation for the decision to withhold this information has been given.
+It seems likely that its subsequent disclosure and the full revelation of what para 6 contained was brought about by representations made by the special advocate appointed to act on Mr Tariqs behalf.
+Lord Mance has said that this is an indication of one of the purposes that a special advocate may serve.
+It may very well amount to such an indication but the fact that the intervention of the special advocate was required to secure the release of material which ought never to have been withheld is, in my opinion, profoundly troubling.
+Lord Mance has suggested that the course of events about the disclosure of this information offers a cautionary message.
+It does more than that.
+It illustrates all too clearly the dangers inherent in a closed material procedure where the party which asks for it is also the repository of information on the impact that an open system will avowedly have on national security.
+The common law right to know and effectively challenge the opposing case
+The right to know and effectively challenge the opposing case has long been recognised by the common law as a fundamental feature of the judicial process.
+In Kanda v Government of Malaya [1962] AC 322, 337 Lord Denning said: If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him.
+He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them.
+This appears in all the cases from the celebrated judgment of Lord Loreburn LC in Board of Education v Rice down to the decision of their Lordships Board in Ceylon University v Fernando.
+It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side made behind the back of the other.
+The centrality of this right to the fairness of the trial process has been repeatedly emphasised.
+Thus, in In re K (Infants) [1963] Ch 381 Upjohn LJ at pp 405 406 said: It seems to be fundamental to any judicial inquiry that a person or other properly interested party must have the right to see all the information put before the judge, to comment on it, to challenge it and if needs be to combat it, and to try to establish by contrary evidence that it is wrong.
+It cannot be withheld from him in whole or in part.
+If it is so withheld and yet the judge takes such information into account in reaching his conclusion without disclosure to those parties who are properly and naturally vitally concerned, the proceedings cannot be described as judicial.
+And in Brinkley v Brinkley [1965] P 75, 78 Scarman J said that for a court to take into consideration evidence which a party to the proceedings has had no opportunity during trial to see or hear, and thus to challenge, explain or comment upon, seems to us to strike at the very root of the judicial process.
+In Pamplin v Express Newspapers Ltd [1985] 1 WLR 689 at 691 Hobhouse J expressed the principle in similarly forthright terms: The first principle is the principle of natural justice which applies wherever legal proceedings involve more than one person and one party is asking the tribunal for an order which will affect and bind another.
+Natural justice requires that each party should have an equivalent right to be heard.
+This means that if one party wishes to place evidence or persuasive material before the tribunal, the other party or parties must have an opportunity to see that material and, if they wish, to submit counter material and, in any event, to address the tribunal about the material.
+One party may not make secret communications to the court.
+Exceptions to the rule that a party to the proceedings must be informed of every detail of his opponents case have, of course, been recognised.
+But it is essential to be aware of the starting point from which one must embark on the inquiry whether the principle of equality of arms (which is such a vital hallmark of our adversarial system of the trial of contentious issues) may be compromised.
+As a general indeed, basic rule, those who are parties to litigation need to know what it is that their opponent alleges against them.
+They need to have the chance to counter those allegations.
+If that vital entitlement is to be denied them, weighty factors must be present to displace it.
+And it is self evident that he who wishes to have it displaced must show that there are sufficiently substantial reasons that this should happen.
+Put shortly, he who thus avers must establish that nothing less will do.
+The case made on behalf of the appellant in this appeal has been stigmatised by the suggestion that it amounts to a claim that the state must accept that it should pay compensation even in those instances where the claimant is known to be wholly undeserving but it is impossible to adduce evidence that would establish this because of national security considerations.
+The respondent claimed and the majority have accepted that the law will not contemplate such a situation.
+In my view, however, this approach carries the danger of allowing the possible consequences of the implementation of the proper principle to effect a modification of the principle itself.
+So, because, it is said, the state, faced with the dilemma of having to choose between revealing the information on which it relies to defeat the claim and compromising national security by doing so, would be forced to settle the case, a better solution must be found.
+That better solution is that the state should be allowed to deploy the information on which the claim can be defeated but be absolved from the need to disclose it to the claimant.
+This solution, it is clear, is founded not on principle but on pragmatism.
+Pragmatic considerations, of course, have their part to play in the resolution of difficult legal conundrums but, I suggest, they have no place here.
+Where, as in this case, the challenged decision is the subject of factual inquiry or dispute and the investigation of the disputed facts centres on an individuals actions or, to bring the matter directly to the circumstances of this case, his supposed vulnerability, that individual is the critical source of information needed to discover the truth; in many cases he may be the only source.
+If he is denied information as to the nature of the case made either directly against him or, as seems more likely here, against others whose presumed relationship with the claimant renders it unsuitable for him to retain security clearance and if he is thereby forced to speculate on the content of the defendants case, no truly adversarial proceedings are possible.
+As Upjohn LJ put it in In re K, the proceedings are not judicial.
+The withholding of information from a claimant which is then deployed to defeat his claim is, in my opinion, a breach of his fundamental common law right to a fair trial.
+Even if the closed material procedure was compatible with article 6 of the European Convention on Human Rights (and for reasons that I will discuss presently, I do not believe that it is) this has no bearing on the appellants right at common law to be provided with details of the case against him sufficient to enable him to present a reasoned challenge to it.
+This courts endorsement of a principle of non disclosure whereby a party in civil proceedings may have withheld from him the allegations forming the basis of the opposing case is a landmark decision, marking a departure from the common laws long established commitment to this basic procedural right.
+In my view, the removal of that right may only be achieved by legislation and only then by unambiguous language that clearly has that effect.
+In R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, dealing with Parliaments power to legislate contrary to fundamental human rights, Lord Hoffmann at p 131 said: Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights.
+The Human Rights Act 1998 will not detract from this power.
+The constraints upon its exercise by Parliament are ultimately political, not legal.
+But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost.
+Fundamental rights cannot be overridden by general or ambiguous words.
+This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process.
+In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.
+In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.
+Although that statement of principle was made in the context of legislation overriding human rights, it applies with equal force to legislation affecting other constitutional rights such as arise in this case.
+In R (Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36, [2004] 1 AC 604, at para 27 Lord Steyn said of Lord Hoffmanns dictum, this principle may find its primary application in respect of cases under the European Convention on Human Rights.
+But the Convention is not an exhaustive statement of fundamental rights under our system of law.
+Lord Hoffmann's dictum applies to fundamental rights beyond the four corners of the Convention.
+In my view it is engaged in the present case.
+And it therefore seems to me remarkable that a modification of such a fundamental right can be achieved without the unambiguous legislative provision that would be required to alter a right arising under the Convention.
+To recognise that this right continues to exist at common law does not mean that every time the state wishes to withhold information from a claimant which, although vital to the defence of the claim, cannot be revealed for reasons of national security, it must submit to settlement of the claim.
+As the experience in Carnduff v Rock [2001] EWCA Civ 680, [2001] 1 WLR 1786 illustrates, it is perfectly proper and, more importantly, principled to find in such cases that they cannot be regarded as justiciable because no just trial is possible.
+Where insistence upon a fully fair hearing for a claimant will deny the defendant (or where it is not a party, the state) the protection of its vital interests that the law should recognise, then a truly fair proceeding is not possible and the trial should be halted in limine.
+Lord Mance has said that this is not an option that the law should readily contemplate.
+I agree but it seems to me to be a plainly more palatable course than to permit a proceeding in which one party knows nothing of the case made against him and which, by definition, cannot be subject to properly informed challenge.
+At least in the Carnduff situation both parties are excluded from the judgment seat.
+In the state of affairs that will result from the decision of the majority in this case, one party has exclusive access to that seat and the system of justice cannot fail to be tainted in consequence.
+Article 6
+Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms provides: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
+Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
+It is well established that the overriding right guaranteed by article 6(1), the right to a fair trial, is absolute see Montgomery v HM Advocate [2003] 1 AC 641, 673, Brown v Stott [2003] 1 AC 681, 719 and Dyer v Watson [2002] UKPC D1, [2004] 1 AC 379 at para 73.
+But the constituent rights comprised, whether expressly or implicitly, within article 6 are not themselves absolute: Brown v Stott at 704 per Lord Steyn.
+One of the implicit constituent rights of article 6 is that there should be equality of arms between the parties to proceedings.
+Of this constituent right, Lord Bingham said in Brown v Stott at 695 that it lay at the heart of the right to a fair trial.
+Equality of arms is the means by which a fair adversarial contest may take place.
+It requires that there must be an opportunity for all parties to be aware of and to comment on all the evidence adduced or observations submitted, with a view to influencing the courts decision Vanjak v Croatia (Application No 29889/04) (unreported) 14 January 2010, at para 52.
+Although, as a constituent element of article 6, equality of arms is not an absolute right, restrictions may only be placed upon it where it is strictly necessary and proportionate do so.
+A strong countervailing public interest is required to satisfy this requirement.
+Moreover, the restriction must be sufficiently counterbalanced by appropriate procedures allowed by the judicial authorities.
+And the restrictions must not be such as effectively to extinguish the very essence of the right.
+These propositions derive from a series of decisions of the European Court of Human Rights (ECtHR) which constitute a clear and constant line of authority emanating from Strasbourg.
+One may begin with Tinnelly & Sons Ltd v United Kingdom (1998) 27 EHRR 249.
+At para 72 the court said: 72.
+The Court recalls that article 6(1) embodies the right to a court, of which the right of access, that is the right to institute proceedings before a court in civil matters, constitutes one aspect.
+In this respect, the contracting states enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention's requirements rests with the Court.
+It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired.
+Furthermore, a limitation will not be compatible with article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.
+So the very essence of the right must not be impaired and the restriction on the constituent right must be proportionate.
+In Rowe and Davis v United Kingdom (2000) 30 EHRR 1 at para 61 the court said: . as the applicants recognised, the entitlement to disclosure of relevant evidence is not an absolute right.
+In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused.
+In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest.
+However, only such measures restricting the rights of the defence which are strictly necessary are permissible under article 6(1).
+Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities.
+A precisely similar formula was employed by the court in para 52 of its judgment in Jasper v United Kingdom (2000) 30 EHRR 441 and in para 52 of Pocius v Lithuania (Application No 35601/04) (unreported) 6 July 2010.
+Significantly, it was also used by the court at para 184 of its judgment in Kennedy v United Kingdom (Application No 26839/05) (unreported) 18 May 2010 where it was confirmed that these principles apply with equal force to civil proceedings.
+From these statements it is clear that the balancing exercise between, on the one hand, full access to all the elements of the equality of arms principle and, on the other, the withholding of evidence on the grounds of national security, must be conducted on the basis that only such restriction on full access to relevant material as is absolutely required can be countenanced.
+And even if that hurdle is surmounted, it must be shown that the limitation on the rights of the party who is denied such access is adequately offset by sufficient counterbalancing measures.
+It seems to me that measures can only be regarded as sufficient if they either wholly eliminate the disadvantage that would otherwise have accrued or if they diminish the difficulties deriving from the non disclosure of the relevant material to a condition of insignificance.
+Thus as the interveners, Justice and Liberty, have put it, restrictions on untrammelled access to relevant material can only be justified in a justiciable case where sufficient information about the substantive case which a party has to meet is disclosed so that he may effectively challenge it.
+Otherwise, the limitation on the right to equality of arms can in no sense be regarded as having been sufficiently counterbalanced.
+A function of the counterbalancing measures is to ensure that the very essence of the right is not impaired.
+It is, I believe, important to have a clear understanding of what is meant by the essence of the right.
+If equality of arms lies at the heart of a fair trial, the essence of the right must surely include the requirement that sufficient information about the case which is to be made against him be given to a party so that he can give meaningful instructions to answer that case.
+In Secretary of State for the Home Department v MB [2007] UKHL 46, [2008] AC 440, a case involving a challenge to a non derogating control order, Lord Bingham referred to the general acceptance by the House of Lords in R (Roberts) v Parole Board [2005] UKHL 45, [2005] 2 AC 738 that there was a core, irreducible, minimum entitlement for the appellant, as a life sentence prisoner, to be able effectively to test and challenge any evidence which decisively bore on the legality of his detention.
+That irreducible minimum entitlement also applied in the case of a control order: see para 43 of MB.
+The opportunity to know and effectively test the case against him (the core irreducible minimum entitlement) surely captures the essence of the right.
+And it seems to me that the essence of the right cannot change according to the context in which it arises.
+Whether a hearing should be conducted in private or in open session; whether information about the case against an individual should be provided by way of full disclosure or by redacted statements or in the form of a summary or gist; whether witnesses should be anonymised all of these are variables to which recourse may be had in order to reflect the context in which the requirements of article 6 must be examined.
+But if the essence of the right is to be regarded (as I believe it must be) as the indispensable and necessary attributes of the right as opposed to those which it may or may not have, its essence cannot alter according to the circumstances in which it falls to be considered.
+Para 217 of the European Court of Human Rights judgment in A v United Kingdom (2009) 49 EHRR 625 has been cited by Lord Mance as an example of the emphasis given by the court to the context in which the requirements of the right were being considered.
+That case involved a challenge to the decision of the Home Secretary to certify that each of the applicants should be detained because he reasonably believed that their presence in the United Kingdom posed a threat to national security.
+As it seems to me the only relevant part of para 217 is contained in the following passage: In view of the dramatic impact of the lengthy and what appeared at that time to be indefinite deprivation of liberty on the applicants fundamental rights, article 5(4) must import substantially the same
+fair trial guarantees as article 6(1) in its criminal aspect
+This says nothing about the essence of the right to equality of arms.
+It merely (but unsurprisingly) confirms that if ones liberty is to be deprived on foot of the order of the Secretary of State, the same guarantees as are available to defendants in a criminal trial should be extended to those who were the subject of detention orders.
+Lord Mance also expressed agreement with the decision of the Court of Appeal in R(AHK) v Secretary of State for the Home Department (Practice Note) [2009] EWCA Civ 287; [2009] 1 WLR 2049 where, according to Lord Mances analysis, it was held that a claim for judicial review of the refusal of an application for British citizenship could be distinguished from the requirements prescribed by A v United Kingdom on the ground that the latter cases focus was on detention.
+I do not agree that the AHK case distinguished A v United Kingdom or, at least, that it suggested (contra the decision in A v UK), that abrogation of the right of a claimant to know the essential elements of the case to be made against him was permissible.
+The AHK case was principally concerned with the question whether a special advocate should be appointed.
+In the list of principles to be applied in cases where the Secretary of State has decided that the reasons for refusing British citizenship could not be fully disclosed Sir Anthony Clarke MR at para 37 (iv) (d) said: All depends upon the circumstances of the particular case, but it is important to have in mind the importance of the decision from the claimant's point of view, the difficulties facing the claimant in effectively challenging the case against him in open court and whether the assistance of a special advocate will or might assist the claimant in meeting the Secretary of State's case and the court in arriving at a fair conclusion.
+Underlying this statement is the acknowledgment that the claimant must be assisted in meeting the Secretary of States case.
+There is no reason to suppose that the Court of Appeal would have endorsed a procedure where the claimant was effectively prevented from knowing and meeting the essential case made against him.
+At a theoretical level it is possible that advocates retained to consider material that cannot be disclosed to a claimant can supply the vital ingredient of ensuring that the case made against the claimant is effectively met.
+In such circumstances the essence of the article 6 right is not lost.
+But AHK is not authority for the proposition that where that indispensable requirement cannot be fulfilled and the claimant is prevented from presenting a fully informed opposition to the case made against him, no violation of article 6 arises because the consequences for the claimant are less serious than the deprivation of his liberty.
+It is, I believe, crucial to a proper understanding of ECtHR jurisprudence in this area that the essence of the right under article 6 is that a party is entitled to know and effectively challenge the case made against him.
+Equality of arms, or a properly set adversarial contest, requires that both parties have equal, or at least a sufficient, access to the material that will be deployed against them.
+The adversarial contest sets the context and the adversarial contest arises in relation to article 6 rights as opposed to other Convention rights.
+Thus cases such as Leander v Sweden (1987) 9 EHRR 433 (which was concerned with alleged violations of articles 8, 10 and 13) and Esbester v United Kingdom (1998) 18 EHRR CD72 (which dealt with claims under article 8 and 13) are of little assistance in determining the requirements of the equality of arms principle under article 6.
+Equality of arms did not arise in these cases.
+No adversarial contest was engaged.
+Whether it is legitimate to withhold information in an article 8 or an article 10 context has nothing to do with the propriety of its non disclosure where parties are seeking a resolution of competing cases from a properly informed and impartial tribunal.
+Articles 8 and 10 are qualified rights.
+Interference with those rights may be justified on grounds specified in the articles.
+By contrast, article 6 is not subject to exemption from the effect of interference.
+Kennedy v United Kingdom involved complaints made by the applicant to the Investigatory Powers Tribunal (IPT) that his communications were being intercepted.
+The applicant had sought specific directions regarding the conduct of the proceedings in order to ensure the protection of his Convention rights under article 6 (1).
+In particular, he asked that his arguments and evidence be presented at an oral hearing; that all hearings be conducted in public; that there be mutual disclosure and inspection between the parties of all witness statements and evidence upon which parties sought to rely and exchange of skeleton arguments in relation to planned legal submissions; that evidence of each party be heard in the presence of the other party or their legal representatives, with oral evidence being open to cross examination by the other party; that any opinion received from a commissioner be disclosed to the parties; and that, following its final determination, the IPT state its findings and give reasons for its conclusions on each relevant issue.
+IPT had held that the applicants proceedings before that tribunal engaged article 6.
+That finding was somewhat diffidently contested before ECtHR, the government contending that there was no civil right involved.
+It was not contended, as it might well have been, that article 6, according to the courts constant jurisprudence, did not apply to cases of surveillance.
+ECtHR proceeded on the assumption that article 6 did apply.
+It is significant that the courts judgment is largely preoccupied with a consideration of the various specific claims made by the applicant about how the proceedings should be conducted.
+The question of providing him with sufficient information in the form of a gist or summary to meet the case against him did not feature in the list of those claims.
+The question of supplying redacted documents is discussed, however, and the courts decision seems largely to have been influenced by the argument advanced on behalf of the government that it was simply not possible to produce the information that the applicant sought because national security would inevitably be compromised.
+That stance is entirely consistent with the view that surveillance cases do not engage article 6.
+It is surprising that more was not made of this by the government and that the court did not address the issue directly.
+If it had done and if it had followed its own constant jurisprudence, the anomaly, which I believe the decision in Kennedy represents, would have been avoided.
+In Klass v Federal Republic of Germany (1978) 2 EHRR 214 at para 75 ECtHR said this about secret surveillance: As long as it remains validly secret, the decision placing someone under surveillance is thereby incapable of judicial control on the initiative of the person concerned, within the meaning of article 6; as a consequence, it of necessity escapes the requirements of that article.
+The logic of this position is inescapable.
+The entire point of surveillance is that the person who is subject to it should not be aware of that fact.
+It is therefore impossible to apply article 6 to any challenge to the decision to place someone under surveillance, at least until notice of termination of the surveillance has been given.
+This approach has been consistently applied by the court.
+So for instance in Rotaru v Romania (2000) 8 BHRC 449 at para 69 the court said where secret surveillance is concerned, objective supervisory machinery may be sufficient as long as the measures remain secret.
+It is only once the measures have been divulged that legal remedies must become available to the individual.
+It is precisely because the fact of surveillance must remain secret in order to be efficacious that article 6 cannot be engaged.
+It appears to me, therefore, that the decision in Kennedy ought to have been made on the basis that article 6 was not engaged because the issues that the case raised were simply not justiciable.
+That the decision is out of line with the established jurisprudence of the court is perhaps best exemplified by contrasting it with the approach of the Grand Chamber in A v United Kingdom as applied by the House of Lords in Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269.
+At para 59 Lord Phillips said this about the ratio in A v United Kingdom: I am satisfied that the essence of the Grand Chamber's decision lies in para 220 and, in particular, in the last sentence of that paragraph.
+This establishes that the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations.
+Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations.
+Where, however, the open material consists purely of general assertions and the case against the controlee is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be.
+Whilst Lord Phillips at para 65 implied that the Grand Chambers decision (that non disclosure cannot deny a party knowledge of the essence of the case against him) might apply only where the consequences for an individual were as severe as those normally imposed under a control order, there are indications in his and other speeches that the principle is of general application.
+In particular, Lord Phillips rejected the suggestion that there should be a different standard where the control order did not amount to detention para 63 and at para 64 he said this: The best way of producing a fair trial is to ensure that a party to it has the fullest information of both the allegations that are made against him and the evidence relied upon in support of those allegations.
+Where the evidence is documentary, he should have access to the documents.
+Where the evidence consists of oral testimony, then he should be entitled to cross examine the witnesses who give that testimony, whose identities should be disclosed.
+Both our criminal and our civil procedures set out to achieve these aims.
+In some circumstances, however, they run into conflict with other aspects of the public interest, and this is particularly the case where national security is involved.
+How that conflict is to be resolved is a matter for Parliament and for government, subject to the law laid down by Parliament.
+That law now includes the Convention, as applied by the HRA.
+That Act requires the courts to act compatibly with Convention rights, in so far as Parliament permits, and to take into account the Strasbourg jurisprudence.
+That is why the clear terms of the judgment in A v United Kingdom resolve the issue raised in these appeals.
+The views of Lord Hope were equally clear and comprehensive.
+At para 83 he said: The approach which the Grand Chamber has adopted is not, as it seems to me, at all surprising.
+The principle that the accused has a right to know what is being alleged against him has a long pedigree.
+As Lord Scott of Foscote observed in A v Secretary of State for the Home Department [2005] 2 AC 68, para 155, a denunciation on grounds that are not disclosed is the stuff of nightmares.
+The rule of law in a democratic society does not tolerate such behaviour.
+The fundamental principle is that everyone is entitled to the disclosure of sufficient material to enable him to answer effectively the case that is made against him.
+Lady Hale in para 103 said that Strasbourg had now made it entirely clear what the test of a fair hearing is.
+The test was whether the controlled person had had the possibility to challenge effectively the allegations made against him.
+He had to have sufficient information about those allegations to be able to give effective instructions to his special advocate.
+If the majority in this appeal are right, however, the test of a fair hearing in Mr Tariqs case is different.
+He need not be given sufficient information about the allegations against him to challenge them effectively or to give effective instructions to his special advocate.
+For my part I cannot understand why this should be so.
+The result of the decision of the majority is to create a different class of case from that where what Lord Brown has helpfully described as A type disclosure must be given.
+The eligibility criteria for inclusion in this privileged group are not clear.
+Certainly, the class is not confined to those whose liberty is at stake, as the speeches in AF (No 3) make clear.
+And, presumably, it must also include freezing order cases Kadi v Council of the European Union Joined Cases C 402/05 P and C 415/05 P [2009] AC 1225, as applied by the European General Court in Kadi II Case T 85/09 [2011] 1 CMLR 697.
+If A type disclosure is required in challenges to freezing orders, does it extend to property rights more generally? If it does, why should property rights be distinguished from loss of employment cases? After all, loss of livelihood may be just as devastating as having ones assets frozen.
+It seems to me that there is no principled basis on which to draw a distinction between the essence of the right to a fair trial based on the nature of the claim that is made.
+A fair trial in any context demands that certain indispensable features are present to enable a true adversarial contest to take place.
+That conclusion is reflected in the later decision of ECtHR of Uukauskas v Lithuania (Application No 16965/04) (unreported) 6 July 2010.
+Lord Mance has sought to distinguish this case on the basis that the procedure adopted was contrary to national law.
+But that consideration was in no sense central to the courts reasoning.
+On the contrary, the observation (at para 48) that Lithuanian law and judicial practice provide that such information may not be used as evidence in court against a person unless it has been declassified, and that it may not be the only evidence on which a court bases its decision was made in order to draw a contrast with the view that documents which constitute state secrets may only be disclosed to persons who possess the appropriate authorisation.
+It is quite clear that the violation of article 6 which the court held to have occurred was based on conventional ECtHR principles.
+This much is evident from para 51 where the court said; In conclusion, therefore, the Court finds that the decision making procedure did not comply with the requirements of adversarial proceedings or equality of arms, and did not incorporate adequate safeguards to protect the interests of the applicant.
+It follows that there has been a violation of article 6(1) in the present case.
+The unavoidable result from this case is that Strasbourg has again made it entirely clear what the test for a fair hearing is where someone seeks to challenge a decision that he should be removed from a firearms register.
+He is entitled to know the reasons that this has happened in order to be able to effectively challenge them.
+If that is so, why should someone who has been dismissed from his employment be in a less advantageous position?
+Conclusions
+I have concluded that the Court of Appeal was correct in finding that where article 6 is engaged, it is necessary for a party to proceedings to be provided with sufficient information about the allegations against him to allow him to give effective instructions to his legal representatives and, if one has been appointed, the special advocate so that those allegations can be effectively challenged.
+I would therefore dismiss the appeal by the Home Office.
+For the reasons given by Lord Mance, with which I agree, I would hold that the closed material procedure provided for in the Employment Tribunal legislative scheme is not in principle incompatible with article 6 and EU law.
+I would therefore also dismiss the cross appeal.
+LORD DYSON
+I agree that for the reasons given by Lord Mance the Court of Appeal was correct to hold that the closed material procedure provided for in the Employment Tribunal legislative scheme, including its provision for the appointment of special advocates is in principle compatible with article 6 of the European Convention on Human Rights (ECHR) and EU law.
+I also agree that the Court of Appeal was wrong to find that, in all cases in which article 6 (civil) is engaged, it is necessary for an individual to be provided with sufficient information about the allegations against him (the gist) to enable him to give effective instructions to his legal representatives and the special advocate (where one has been appointed) in relation to those allegations.
+It is on this second question that I wish to add some words of my own.
+General observations about closed procedures
+The article 6 right to a fair trial is absolute: see, for example, per Lord Hope in Dyer v Watson [2002] UKPC D1 [2004] 1 AC 379 at para 73.
+In principle, a fair trial presupposes adversarial proceedings and equality of arms.
+Thus, for example, in Vanjak v Croatia (Application No 29889/04) (unreported) 14 January 2010, at para 52, the European Court of Human Rights said: . . independently of whether the case is a civil, criminal or disciplinary one, the right to adversarial proceedings has to be complied with.
+That right means in principle the opportunity for the parties to court proceedings falling within the scope of article 6 to have knowledge of and comment on all evidence adduced or observations submitted, with a view to influencing the courts decision.
+But the constituent elements of a fair process are not absolute or fixed: see Brown v Stott [2003] 1 AC 681 at 693D E per Lord Bingham; 719G H per Lord Hope; and 727H per Lord Clyde.
+This was re affirmed by the ECtHR in relation to article 5(4) in A v United Kingdom (2009) 49 EHRR 625 at para 203: The requirement of procedural fairness under article 5(4) does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances.
+Moreover, it has been recognised by the ECtHR that there are circumstances where a limitation on what would otherwise be a general rule of fairness is permissible.
+Thus in Rowe and Davis v United Kingdom (2000) 30 EHRR 1, at para 61, the European Court of Human Rights said: the entitlement to disclosure of relevant evidence is not an absolute right.
+In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused.
+In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest.
+However, only such measures restricting the rights of the defence which are strictly necessary are permissible under article 6(1).
+Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights may be sufficiently counterbalanced by the procedures followed by the judicial authorities.
+Prima facie, a closed material procedure denies the party who is refused access to the closed material the right to full and informed participation in adversarial proceedings and to that extent is inconsistent with the principle of equality of arms.
+There are two factors which the Secretary of State says are sufficient to counterbalance the effects of the closed material procedure in the present case.
+The first is that there is scrutiny by an independent court (the Employment Tribunal) fully appraised of all relevant material and experienced in dealing with discrimination cases.
+The second is the testing by a special advocate of the Home Offices case in closed session.
+But are these factors sufficient in circumstances where the gist of the Home Office case is not disclosed to the claimant? How can the special advocate represent the claimants interests if the claimant is unable to give full instructions to him? The answer to these questions in the context of proceedings involving the liberty of the subject is clear.
+If the special advocate is unable to perform his function in any useful way unless the detainee is provided with sufficient information about the allegations to enable him to give effective instructions to the special advocate, then there must be disclosure to the detainee of the gist of that information: see A v United Kingdom at para 220 and, in the context of control orders, Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269.
+In such a case, there must be disclosure, regardless of how important the competing national interest may be in favour of withholding the information.
+The consequence of this will inevitably be that in some cases the prosecuting or detaining authorities will be faced with the invidious choice of disclosing sensitive information or risking losing the case.
+But what is the position in cases which do not involve the liberty of the subject? For the reasons given by Lord Mance and Lord Brown, I agree that neither A v United Kingdom nor AF (No3) decides this question.
+Mr Allen QC and Mr Howell QC submit that the reasoning in A v United Kingdom is not limited to cases involving the liberty of the subject and should be applied to civil claims too.
+They submit that, properly understood, the Strasbourg jurisprudence does not support the proposition that a different approach may be adopted to the problem in civil claims.
+They also say that to distinguish between the requirements of article 6 on the basis of a classification of the type of case involved is unprincipled and will give rise to uncertainty and confusion.
+But it is clear from para 203 of A v United Kingdom itself that article 6 does not require a uniform approach to be adopted in all classes of case.
+In Kennedy v United Kingdom (Application No 26839) (unreported) 18 May 2010, the European Court of Human Rights said that the entitlement to disclosure of relevant evidence is not an absolute right (para 187); the character of the proceedings may justify dispensing with an oral hearing (para 188); and the extent to which the duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (para 189).
+I therefore agree with what Sir Anthony Clarke MR said when giving the judgment of the court in R(AHK) v Secretary of State for the Home Department (Practice Note) [2009] EWCA Civ 287, [2009] 1 WLR 2049 at para 45: The above analysis shows that the European Court of Human Rights considers each class of case separately.
+The issues in this class of case are a far cry from the issues that arise in the criminal cases discussed by the court in A v United Kingdom 19 February 2009.
+Moreover, without in any way minimising the effect of being refused British citizenship, the consequences of a deprivation of (or even interference with) liberty are plainly very much more serious.
+In these circumstances we do not think that the approach of the court in criminal cases or in cases of deprivation or interference with liberty can or should be applied directly to this class of case.
+That is not to say that, as explained earlier, each individual is not entitled to a fair hearing of his application for judicial review.
+Nevertheless, I would accept that the general rule is that an applicant should enjoy the full panoply of article 6 rights, including full disclosure of all relevant material and that any limitation on the ordinary incidents of article 6 requires careful justification.
+In deciding how to strike the balance between the rights of the individual and other competing interests, the court must consider whether scrutiny by an independent court and the use of special advocates are sufficient to counterbalance the limitations on the individuals article 6 rights.
+In many cases, an individuals case can be effectively prosecuted without his knowing the sensitive information which public interest considerations make it impossible to disclose to him.
+For example, in a discrimination claim such as that of Mr Tariq, the central issue may well not be whether the underlying security concerns are well founded, but rather whether the decision making process was infected by discrimination.
+As Mr Eadie QC points out, Mr Tariqs appeal is not against the assessments or conclusions of the Home Office as to the withdrawal of his security clearance.
+SVAP provides the expert forum for considering such issues.
+It was not for the Employment Tribunal to determine whether, for example, it believed or did not believe Mr Tariqs assertions about the nature of his relationships with persons involved in or associated with terrorist activities.
+Thus in the conduct of a discrimination claim, the special advocate and indeed the judge can to a considerable extent test the case of the alleged discriminator without the input of the claimant.
+The surveillance/security vetting cases
+Lord Mance has referred at para 68 to what he describes as the clear line of jurisprudence culminating in the Courts decision in Kennedy which demonstrates that, in civil cases, it is not necessary to provide the gist of information which the interests of national security require to be kept secret.
+I think that it is necessary to examine the authorities with some care to see precisely what these cases do establish.
+In the absence of special circumstances, our courts should follow any clear and constant jurisprudence of the European Court of Human Rights: see R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295 at para 26.
+The first case to note is Klass v Federal Republic of Germany (1978) 2 EHRR 214.
+This involved a challenge to legislation which permitted the authorities to open and inspect mail and listen to telephone conversations in order to protect, inter alia, against imminent dangers threatening the existence or the security of the state.
+The challenge was based on an alleged breach of articles 6, 8 and 13 of the European Convention on Human Rights.
+At para 75, the European Court of Human Rights said : As long as it remains validly secret, the decision placing someone under surveillance is thereby incapable of judicial control on the initiative of the person concerned, within the meaning of article 6; as a consequence, it of necessity escapes the requirements of that article.
+The cases of Leander v Sweden (1987) 9 EHRR 433 and Esbester v United Kingdom (1993) 18 EHRR CD72 are discussed by Lord Mance at paras 28 to 32 above.
+They can be considered together, although at first sight it may seem odd to refer to them at all since they are not article 6 cases.
+The claim in Leander was brought under articles 8, 10 and 13 and in Esbester under articles 8 and 13.
+I accept that what may be a proportionate and justified interference with a persons rights under article 8 may not correspond precisely with what may be a strictly necessary and sufficiently counterbalanced invasion of his right to a fair trial under article 6.
+Moreover, it is right to point out that Leander and Esbester were referred to by the European Court of Human Rights in Kennedy, but only in its discussion of the claims under articles 8 and 13: see paras 122, 152, 195 and 197.
+The section in Kennedy which deals with article 6 does not refer to either of these authorities.
+Mr Eadie accepts that Leander and Esbester did not concern article 6.
+He relies on them as being directly analogous to the present case, relating to security vetting in an employment context.
+Issues of fairness were central to the issues arising under articles 8 and 10 and the right to an effective remedy under article 13.
+The European Court of Human Rights found that the vetting systems in those cases were compatible with article 8 and upheld the right of the state not to disclose the reasons for the rejection of the applicants application for employment as a result of a security vetting process.
+Whereas Klass is a case where it seems to have been held that article 6 did not apply at all and Leander and Esbester are not article 6 cases, there can be no doubt that Kennedy is an article 6 case.
+In Kennedy (which was decided after the decision of the Court of Appeal in the present case), the applicant complained about an alleged interception of his communications, claiming that it was a violation of his article 8 rights.
+He also complained that the hearing before the Investigatory Powers Tribunal (IPT) was not attended by adequate safeguards as required under article 6 and that, as a result, he had been denied an effective remedy under article 13.
+Lord Mance has set out the relevant passages of the judgment at paras 34 and 35 above.
+The submissions of the parties summarised at paras 180 to 183 of the judgment were directed to the question of what article 6 required.
+It is of note that the Government submitted that the scope of the article 6 guarantees in that case should be in harmony with the Courts approach to judicial control under article 8.
+The courts assessment at paras 184 to 191 was explicitly on the basis of the application of article 6.
+In contrast with para 75 of Klass, the court did not say that the case escapes the requirements of [article 6].
+Thus at para 186, the court emphasised that the proceedings related to secret surveillance measures and that there was therefore a need to keep secret sensitive and confidential information.
+The court continued: this consideration justifies restrictions in the IPT proceedings.
+The question is whether the restrictions, taken as a whole, were disproportionate or impaired the very essence of the applicants right to a fair trial.
+This is the classic approach to article 6.
+The courts conclusion at para 190 was that the restrictions on the procedure before the IPT did not violate the applicants right to a fair trial.
+In reaching this conclusion, the court took into account the breadth of access to the IPT (an independent court) enjoyed by those complaining about interception and the absence of any evidential burden to be overcome in order to lodge an application with the IPT.
+It concluded: In order to ensure the efficacy of the secret surveillance regime, and bearing in mind the importance of such measures to the fight against terrorism and serious crime, the Court considers that the restrictions on the applicants rights in the context of the proceedings before the IPT were both necessary and proportionate and did not impair the very essence of the applicants article 6 rights.
+Mr Allen and Mr Howell submit that Kennedy should be understood as a decision that, so long as the very subject matter of the dispute must justifiably remain secret, is effectively non justiciable and the substantive protections that article 6 contains cannot be applied in substance to its resolution.
+In other words, they submit that the decision in Kennedy should be analysed as an application of para 75 of Klass.
+If, however, the court had intended to adopt this approach, it would have said so.
+Instead, it clearly purported to apply article 6.
+Kennedy is a striking decision.
+But for the security issues raised in the case, it is surely inconceivable that the court would have concluded that the restrictions on the applicants rights before the IPT (a completely closed procedure without even the protection of a special advocate) were necessary and proportionate and did not impair the very essence of the applicants article 6 rights.
+The crucial reason for this conclusion was that the restrictions on the applicants rights were necessary in order to ensure the efficacy of the secret surveillance regime.
+Kennedy was a case about a secret surveillance regime by interception of his communications.
+This same language was used by the court in Klass at para 58 to justify the interference with the applicants article 8 rights in that case (another interception of communications case): the fact of not informing the individual once surveillance has ceased cannot itself be incompatible with this provision, since it is this very fact which ensures the efficacy of the interference.
+The same reasoning appears in the security vetting cases of Leander and Esbester.
+Thus, for example, at para 66 of Leander, the court said that the very fact that the information released to the military authorities was not communicated to Mr Leander cannot by itself warrant the conclusion that the interference was not necessary in a democratic society in the interests of national security, as it is the very absence of such communication which, at least partly, ensures the efficacy of the personnel control procedure.
+In support of this proposition, the court referred to para 58 of Klass.
+There is similar reasoning in the Commissions decision in Esbester.
+In my view, the significance of Kennedy is that it is a decision explicitly based on an application of article 6 which adopted the same approach as that which was taken by the court in applying articles 8 and 13 in Leander and by the Commission in Esbester.
+This provides clear support for the submission of Mr Eadie that, for the purposes of the issues that arise in the present case, there is no material difference between articles 8 and 13 on the one hand and article 6 on the other.
+I do not consider that, if the complaints in Leander and Esbester had been based on article 6, the outcome in these cases would have been different.
+The other point to emphasise is that these cases show that there is no material difference between surveillance cases (such as Klass and Kennedy) and security vetting cases (such as Leander and Esbester).
+In the former, restrictions on an individuals right to disclosure and participation in a hearing will be considered necessary and proportionate if they are required in order to ensure the efficacy of the secret surveillance regime.
+In the latter, the restrictions will be considered necessary and proportionate if they are required in order to ensure the efficacy of the personnel control procedure.
+Mr Allen and Mr Howell submit that the limited significance of Leander, Esbester and Kennedy is demonstrated by the decision of the ECtHR in Uukauskas v Lithuania (Application No 16965/04) (unreported) 6 July 2010.
+Lord Mance has set out the facts at para 37 above.
+I find this a difficult decision to interpret.
+On the one hand, the court approached the matter in conventional article 6 terms: see para 46 where it noted that (i) the entitlement to disclosure of relevant evidence is not an absolute right; (ii) it may be necessary to withhold certain evidence to safeguard an important public interest; but (iii) only such measures restricting the rights of the defence which are strictly necessary are permissible and there must be sufficient counterbalancing.
+At para 48 the court referred to the fact that, according to Lithuanian law and judicial practice, secret information may not be used as evidence in court unless it has been declassified and it may not be the only evidence on which a court bases its decision.
+It is not clear to me to what extent the court based its conclusion that there had been a breach of article 6 on the fact that use of the secret material against the applicant (which was of decisive importance to his case) was contrary to Lithuanian law.
+But I accept that on the face of it, this is an article 6 decision which does not sit easily with the surveillance/vetting procedure cases to which I have referred.
+There is no reference to them.
+There is no weighing of the national interest in the protection of the community against crime against the general right to adversarial proceedings.
+For these reasons and because it is unclear to what extent the position under Lithuanian law influenced the decision, I agree with Lord Mance that this decision does not cast doubt on the approach adopted in the surveillance/security vetting cases.
+Unlike Lord Mance, however, I doubt whether the fact that there is no procedure under Lithuanian law for the use of a special advocate to consider closed material is of significance, since, as was pointed out by the European Court of Human Rights in Kennedy at para 187, the procedure before the IPT did not permit the use of special advocates either.
+In my judgment, these decisions show that there is a clear line of authority to support the proposition that, in surveillance and security vetting cases, an individual is not entitled to full article 6 rights if to accord him such rights would jeopardise the efficacy of the surveillance or security vetting regime itself.
+On the material shown to us, the line of authority may not be very long, but in my view it is sufficiently clear that it should be followed by our courts.
+The cases show, in particular, that there is no right to be given the gist of relevant information if and to the extent that this would jeopardise the efficacy of the surveillance or security vetting regime.
+The present case
+I have no doubt that article 6 does not require that Mr Tariq should be given the gist of information which would damage or jeopardise national security.
+First, and above all, this is a security vetting case and in such a case article 6 does not require gisting if and in so far as it would jeopardise the efficacy of the personnel control procedure.
+That is a sufficient reason for allowing the Home Office appeal.
+There is no sensible basis for distinguishing the present case from Leander and Esbester.
+In those cases (which concerned a complaint about the manner in which security vetting was conducted where the applicant was applying for a sensitive post), article 8 did not require disclosure of the security material.
+In the present case, the complaint is about the decision not to allow a person to remain in a post where security vetting was employed.
+There can be no distinction in principle between the two cases.
+A related point is that in all cases where security clearance is sought, it is because the individual has volunteered to undergo the clearance process for the purpose of doing (or continuing to do) the job that he is employed to do.
+He must be taken to know that checks will be made that may produce material that cannot be shown to him.
+As Lord Hope points out, he is a volunteer.
+I would add the following points which reinforce the Home Office case.
+First, the subject matter of the claim is a claim for damages for alleged discrimination.
+I do not wish to underestimate the importance of the right not to be subjected to discrimination.
+But on any view, discrimination is a less grave invasion of a persons rights than the deprivation of the right to liberty.
+Secondly, the issues in the present case are such that the presence of an independent court and a special advocate are likely to go a long way to making up for the fact that Mr Tariq will be unable fully to participate in the proceedings.
+As I have explained at para 147 above, there is likely to be only limited (if any) scope for Mr Tariq to be able to give instructions to the special advocate which are necessary to enable her to test the Home Office case effectively.
+Conclusion
+I would, therefore, allow the Home Offices appeal primarily on the ground that this case concerns a decision taken in the context of security vetting.
+In other classes of civil case which are outside the surveillance/security vetting context, the balance between the individuals article 6 rights and other competing interests may be struck differently.
+It is said that this gives rise to undesirable uncertainty.
+But much of the content of the European Convention on Human Rights is about striking balances.
+This is sometimes very difficult and different opinions can reasonably be held.
+As a consequence, outcomes are sometimes difficult to predict.
+This is inevitable.
+But it is not a reason for striving to devise hard and fast rules and rigid classifications.
+It is, however, at least possible to say that, in principle, article 6 requires as much disclosure as possible.
+It is very easy for the state to play the security card.
+The court should always be astute to examine critically any claim to withhold information on public interest grounds.
+For the reasons that I have given, I would allow the Home Office appeal.
+I would also dismiss the appeal of Mr Tariq for the reasons given by Lord Mance.
+LORD PHILLIPS, LADY HALE AND LORD CLARKE
+I agree that, for the reasons given by Lord Hope, Lord Brown, Lord Mance and Lord Dyson, the appeal of the Home Office should be allowed and that the cross appeal of Mr Tariq should be dismissed.
+LORD RODGER
+Lord Rodger, who died before judgment was given in this case, had indicated that he agreed with the judgments of Lord Mance and Lord Brown.
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+This appeal gives the Supreme Court the opportunity to revisit the decision of the House of Lords in Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432.
+That case, like this, was concerned with the determination of the beneficial interests in a house acquired in joint names by an unmarried couple who intended it to be their family home.
+Its reasoning was closely examined, in particular by Rimer LJ, in the present appeal: [2010] EWCA Civ 578, [2010] 1 WLR 2401.
+The fact that the Court of Appeal itself gave permission to appeal is a mark of the difficulties felt by the majority, not only with the reasoning but also with the outcome to which it led.
+The decision in Stack v Dowden has also attracted a good deal of comment from legal scholars, which we have read although it was not referred to by counsel (who took a sensibly economical approach to the presentation of the appeal).
+This ranges from qualified enthusiasm (K Gray & S Gray, Land Law, 6th ed (2009) para 7 072) to almost unqualified disapprobation (Swadling, The Common Intention Trust in the House of Lords: An Opportunity Missed (2007) 123 LQR 511; Dixon, The Never Ending Story Co Ownership After Stack v Dowden [2007] Conv 456).
+But counsel have not argued that Stack v Dowden was wrongly decided or that this court should now depart from the principles which it laid down.
+This appeal provides an opportunity for some clarification.
+Stack v Dowden
+Mr Stack and Ms Dowden lived together for 19 years, from 1983 to 2002.
+They did not marry but they had four children born between 1986 and 1991.
+Ms Dowden was a well qualified electrical engineer, and throughout the time when they lived together she worked full time (except for periods of maternity leave) for the LEB and its successor.
+Mr Stack was a self employed builder and decorator until 1987, after which he was employed by Hammersmith and Fulham LBC.
+They started living together in 1983 in a house acquired in Ms Dowdens sole name at the price of 30,000.
+The deposit of 8,000 was paid out of a building society account in Ms Dowdens sole name; there was a conflict of evidence as to whether Mr Stack had made any contributions to the account.
+The balance of 22,000 was raised on a mortgage for which Ms Dowden alone was responsible.
+She made the mortgage payments and paid other household outgoings.
+Mr Stack kept his finances separate (he had most of his post, including his bank statements, sent to his fathers address).
+They carried out extensive repairs and improvements to the house.
+The judge found that Mr Stack was responsible for most of this work but could not put a figure on its contribution to the sale value of the house.
+They moved house in 1993.
+Ms Dowden received over 66,000 from the sale of their first home.
+Their new home was bought for 190,000.
+Nearly 129,000 came from Ms Dowdens building society account and the balance from a bank loan secured on the house and on two endowment policies, one in joint names and one in Ms Dowdens sole name.
+The house was transferred into their joint names with no express declaration of trust, but a standard form provision that the survivor could give a good receipt.
+Mr Stack paid the mortgage interest and the premiums on the joint policy, to a total amount of nearly 34,000.
+The principal of the mortgage loan was repaid by a series of lump sum payments, to which Mr Stack contributed 27,000 and Ms Dowden over 38,000.
+The utility bills were in Ms Dowdens name and she paid all or most of them.
+There were some improvements to the property, but not on a large scale.
+The parties continued to maintain separate bank accounts and each made a number of separate investments.
+In short, there was a substantial disparity between their respective financial contributions to the purchase.
+The trial judge held that the proceeds of sale should be divided in equal shares.
+Although Ms Dowden had been the bigger earner, they have both put their all into doing the best for themselves and their family as they could.
+The Court of Appeal allowed Ms Dowdens appeal and divided the proceeds 65% to 35% as she had asked.
+The House of Lords (Lord Hoffmann, Lord Hope, Lord Walker, Lady Hale and Lord Neuberger) unanimously upheld that order, although Lord Neuberger did so for different reasons from the majority.
+The curious feature of the decided cases up until then had been that, once an intention to share ownership had been established, the courts had tended to adopt a more flexible and holistic approach to the quantification of the parties shares in cases of sole legal ownership than they had in cases of joint legal ownership.
+In the former, they had adopted a concept of the common intention constructive trust which depends upon the shared intentions of the parties.
+In the latter, they had tended to analyse the matter in terms of a resulting trust, which depends upon the laws presumption as to the intention of the party who makes a financial contribution to the purchase.
+This point was made by Lady Hale in Stack v Dowden, paras 64 and 65 (see also Peter Gibson LJ in Drake v Whipp [1996] 1 FLR 826, 827, cited in Stack v Dowden, para 29).
+The leading opinion in the House of Lords was that of Lady Hale.
+Lord Hoffmann, Lord Hope and Lord Walker all agreed with it, though Lord Hope and Lord Walker added some observations of their own.
+Lord Hope discussed Scots law, drawing attention to the importance in Scotland of the law of unjust enrichment.
+Lord Walker contributed what he referred to as an extended footnote, with a detailed commentary on Lord Diplocks speech in Gissing v Gissing [1971] AC 886.
+The conclusions in Lady Hales opinion were directed to the case of a house transferred into the joint names of a married or unmarried couple, where both are responsible for any mortgage, and where there is no express declaration of their beneficial interests.
+In such cases, she held that there is a presumption that the beneficial interests coincide with the legal estate.
+Specifically, in the domestic consumer context, a conveyance into joint names indicates both legal and beneficial joint tenancy, unless and until the contrary is proved: Lady Hale, at para 58; Lord Walker at para 33.
+Secondly, the mere fact that the parties had contributed to the acquisition of the home in unequal shares would not normally be sufficient to rebut the presumption of joint tenancy arising from the conveyance: It cannot be the case that all the hundreds of thousands, if not millions, of transfers into joint names . are vulnerable to challenge in the courts simply because it is likely that the owners contributed unequally to their purchase: Lady Hale, at para 68.
+Thirdly, the task of seeking to show that the parties intended their beneficial interests to be different from their legal interests was not to be lightly embarked upon.
+In family disputes, strong feelings are aroused when couples split up.
+These often lead the parties, honestly but mistakenly, to reinterpret the past in self exculpatory or vengeful terms.
+They also lead people to spend far more on the legal battle than is warranted by the sums actually at stake.
+A full examination of the facts is likely to involve disproportionate costs.
+In joint names cases it is also unlikely to lead to a different result, unless the facts are very unusual: Lady Hale, at para 68; also Lord Walker at para 33.
+Fourthly, however, if the task is embarked upon, it is to ascertain the parties common intentions as to what their shares in the property would be, in the light of their whole course of conduct in relation to it: Lady Hale, at para 60.
+It is the way in which this point was made which seems to have caused the most difficulty in the lower courts.
+The difficulty is well illustrated in Lord Wilsons judgment, at paras 85 to 87, which read the judgment in a way which we would not read it.
+It matters not which reading is correct.
+It does matter that any confusion is resolved.
+It was also accepted that the parties common intentions might change over time, producing what Lord Hoffmann referred to in the course of argument as an ambulatory constructive trust: Lady Hale, at para 62.
+An example, given in para 70, was where one party had financed or constructed an extension or major improvement to the property, so that what they had now was different from what they had first acquired.
+But of course there are other examples.
+The principal question in this case is whether this is one.
+At its simplest the principle in Stack v Dowden is that a common intention trust, for the cohabitants home to belong to them jointly in equity as well as on the proprietorship register, is the default option in joint names cases.
+The trust can be classified as a constructive trust, but it is not at odds with the parties legal ownership.
+Beneficial ownership mirrors legal ownership.
+What it is at odds with is the presumption of a resulting trust.
+A single regime?
+In an interesting article by Simon Gardner and Katherine Davidson, The Future of Stack v Dowden (2011) 127 LQR 13, 15, the authors express the hope that the Supreme Court will make clear that constructive trusts of family homes are governed by a single regime, dispelling any impression that different rules apply to joint names and single name cases.
+At a high level of generality, there is of course a single regime: the law of trusts (this is the second of Mustill LJs propositions in Grant v Edwards [1986] Ch 638, 651).
+To the extent that we recognise that a common intention trust is of central importance to joint names as well as single names cases, we are going some way to meet that hope.
+Nevertheless it is important to point out that the starting point for analysis is different in the two situations.
+That is so even though it may be necessary to enquire into the varied circumstances and reasons why a house or flat has been acquired in a single name or in joint names (they range, for instance, from Lowson v Coombes [1999] Ch 373, where the property was in the womans sole name because the man was apprehensive of claims by his separated wife, to Adekunle v Ritchie [2007] WTLR 1505, where an enfranchised freehold was in joint names because the elderly tenant could not obtain a mortgage on her own).
+The starting point is different because the claimant whose name is not on the proprietorship register has the burden of establishing some sort of implied trust, normally what is now termed a common intention constructive trust.
+The claimant whose name is on the register starts (in the absence of an express declaration of trust in different terms, and subject to what is said below about resulting trusts) with the presumption (or assumption) of a beneficial joint tenancy.
+The official Land Registry application form (TR1) for registration of a transfer was replaced on 1 April 1998 by a new form with a box enabling joint transferees to clarify the beneficial ownership of the property.
+That should help to avoid uncertainty but in practice it does not always do so (this is explained in detail in a case note: Anything to Declare? Express Declarations of Trust in Stack v Dowden [2007] Conv 364).
+We understand that the Land Registry does not propose to implement the recommendations for change made by an expert working party which it convened in response to Stack v Dowden: see Elizabeth Cooke, In the wake of Stack v Dowden: the tale of TR1 [2011] Fam Law 1142.
+The presumption of a beneficial joint tenancy is not based on a mantra as to equity following the law (though many non lawyers would find it hard to understand the notion that equity might do anything else).
+There are two much more substantial reasons (which overlap) why a challenge to the presumption of beneficial joint tenancy is not to be lightly embarked on.
+The first is implicit in the nature of the enterprise.
+If a couple in an intimate relationship (whether married or unmarried) decide to buy a house or flat in which to live together, almost always with the help of a mortgage for which they are jointly and severally liable, that is on the face of things a strong indication of emotional and economic commitment to a joint enterprise.
+That is so even if the parties, for whatever reason, fail to make that clear by any overt declaration or agreement.
+The court has often drawn attention to this.
+Jacob LJ did so in his dissenting judgment in this case: [2010] EWCA Civ 578, [2010] 1 WLR 2401, para 90.
+One of the most striking expressions of this approach is in the judgment of Waite LJ in Midland Bank plc v Cooke [1995] 4 All ER 562, 575.
+It is worth quoting it at some length, even though the case was a single name case and the couple were married (the husband was 19, and the wife a little older, at the time of the marriage): Equity has traditionally been a system which matches established principle to the demands of social change.
+The mass diffusion of home ownership has been one of the most striking social changes of our own time.
+The present case is typical of hundreds, perhaps even thousands, of others.
+When people, especially young people, agree to share their lives in joint homes they do so on a basis of mutual trust and in the expectation that their relationship will endure.
+Despite the efforts that have been made by many responsible bodies to counsel prospective cohabitants as to the risks of taking shared interests in property without legal advice, it is unrealistic to expect that advice to be followed on a universal scale.
+For a couple embarking on a serious relationship, discussion of the terms to apply at parting is almost a contradiction of the shared hopes that have brought them together.
+There will inevitably be numerous couples, married or unmarried, who have no discussion about ownership and who, perhaps advisedly, make no agreement about it.
+It would be anomalous, against that background, to create a range of home buyers who were beyond the pale of equitys assistance in formulating a fair presumed basis for the sharing of beneficial title, simply because they had been honest enough to admit that they never gave ownership a thought or reached any agreement about it.
+Gardner and Davidson make the same point at (2011) 127 LQR 13, 15 16: The context under discussion is one in which people will not normally formulate agreements, but (this is crucial) the very reason for this the parties familial trust in one another also warrants the laws intervention nonetheless.
+Unless the law reacts to such trust as much as to more individualistic forms of interaction, those who put their faith in the former rather than the latter will find their interests thereby exposed.
+Gardner has termed this a materially communal relationship: ie one in which, in practical terms, they pool their material resources (including money, other assets, and labour): An Introduction to Land Law, 2nd ed (2009) para 8.3.7.)
+The notion that in a trusting personal relationship the parties do not hold each other to account financially is underpinned by the practical difficulty, in many cases, of taking any such account, perhaps after 20 years or more of the ups and downs of living together as an unmarried couple.
+That is the second reason for caution before going to law in order to displace the presumption of beneficial joint tenancy.
+Lady Hale pointed this out in Stack v Dowden at para 68 (see para 12 above), as did Lord Walker at para 33: In the ordinary domestic case where there are joint legal owners there will be a heavy burden in establishing to the courts satisfaction that an intention to keep a sort of balance sheet of contributions actually existed, or should be inferred, or imputed to the parties.
+The presumption will be that equity follows the law.
+In such cases the court should not readily embark on the sort of detailed examination of the parties relationship and finances that was attempted (with limited success) in this case.
+The competing presumption: a resulting trust?
+72, 73, footnote 6) William Swadling has commented: In an illuminating article, Explaining Resulting Trusts (2008) 124 LQR A resulting trust also traditionally arose where A and B contributed unequally to the purchase price and the title was conveyed to A and B as joint tenants, whereby A and B held as equitable tenants in common in proportion to their contributions (Lake v Gibson (1729) 1 Eq Cas Abr 290).
+In Stack v Dowden [2007] UKHL 17, a majority of the House of Lords held that this rule no longer applied in the case of matrimonial or quasi matrimonial homes.
+That is probably a reference to para 31 of Lord Walkers opinion.
+Lady Hales opinion does not in terms reach that conclusion.
+But the extended discussion from para 56 to para 70 (and in particular, the express disapproval of Walker v Hall [1984] FLR 126, Springette v Defoe [1992] 2 FLR 388 and Huntingford v Hobbs [1993] 1 FLR 736) is inconsistent with a resulting trust analysis in this context.
+It is not possible at one and the same time to have a presumption or starting point of joint beneficial interests and a presumption (let alone a rule) that the parties beneficial interests are in proportion to their respective financial contributions.
+In the context of the acquisition of a family home, the presumption of a resulting trust made a great deal more sense when social and economic conditions were different and when it was tempered by the presumption of advancement.
+The breadwinner husband who provided the money to buy a house in his wifes name, or in their joint names, was presumed to be making her a gift of it, or of a joint interest in it.
+That simple assumption which was itself an exercise in imputing an intention which the parties may never have had was thought unrealistic in the modern world by three of their Lordships in Pettitt v Pettitt [1970] AC 777.
+It was also discriminatory as between men and women and married and unmarried couples.
+That problem might have been solved had equity been able to extend the presumption of advancement to unmarried couples and remove the sex discrimination.
+Instead, the tool which equity has chosen to develop law is the common intention constructive trust.
+Abandoning the presumption of advancement while retaining the presumption of resulting trust would place an even greater emphasis upon who paid for what, an emphasis which most commentators now agree to have been too narrow: hence the general welcome given to the more promising vehicle of the constructive trust: see Gardner and Davidson at (2011) 127 LQR 13, 16.
+The presumption of advancement is to receive its quietus when section 199 of the Equality Act 2010 is brought into force.
+The time has come to make it clear, in line with Stack v Dowden (see also Abbott v Abbott [2007] UKPC 53, [2007] 2 All ER 432), that in the case of the purchase of a house or flat in joint names for joint occupation by a married or unmarried couple, where both are responsible for any mortgage, there is no presumption of a resulting trust arising from their having contributed to the deposit (or indeed the rest of the purchase) in unequal shares.
+The presumption is that the parties intended a joint tenancy both in law and in equity.
+But that presumption can of course be rebutted by evidence of a contrary intention, which may more readily be shown where the parties did not share their financial resources.
+Inference or imputation?
+In Stack v Dowden Lord Neuberger observed (paras 125 126): While an intention may be inferred as well as express, it may not, at least in my opinion, be imputed.
+That appears to me to be consistent both with normal principles and with the majority view of this House in Pettitt [1970] AC 777, as accepted by all but Lord Reid in Gissing v Gissing [1971] AC 886, 897H, 898B D, 900E G, 901B D, 904E F, and reiterated by the Court of Appeal in Grant v Edwards [1986] Ch 638 at 651F 653A.
+The distinction between inference and imputation may appear a fine one (and in Gissing v Gissing [1971] AC 886, at 902G H, Lord Pearson, who, on a fair reading I think rejected imputation, seems to have equated it with inference), but it is important.
+An inferred intention is one which is objectively deduced to be the subjective actual intention of the parties, in the light of their actions and statements.
+An imputed intention is one which is attributed to the parties, even though no such actual intention can be deduced from their actions and statements, and even though they had no such intention.
+Imputation involves concluding what the parties would have intended, whereas inference involves concluding what they did intend.
+Rimer LJ made some similar observations in the Court of Appeal in this case [2010] EWCA Civ 578, [2010] 1 WLR 2401, paras 76 77.
+Both observations had been to some extent anticipated as long ago as 1970 by Lord Reid in his speech in Gissing v Gissing [1971] AC 886, 897: Returning to the crucial question there is a wide gulf between inferring from the whole conduct of the parties that there probably was an agreement, and imputing to the parties an intention to agree to share even where the evidence gives no ground for such an inference.
+If the evidence shows that there was no agreement in fact then that excludes any inference that there was an agreement.
+But it does not exclude an imputation of a deemed intention if the law permits such an imputation.
+If the law is to be that the court has power to impute such an intention in proper cases then I am content, although I would prefer to reach the same result in a rather different way.
+But if it were to be held to be the law that it must at least be possible to infer a contemporary agreement in the sense of holding that it is more probable than not there was in fact some such agreement then I could not contemplate the future results of such a decision with equanimity.
+The decision of the House of Lords in Gissing v Gissing has been so fully analysed and discussed that it is almost impossible to say anything new about it.
+However it may be worth pointing out that their Lordships speeches were singularly unresponsive to each other.
+The only reference to another speech is by Viscount Dilhorne (at p 900) where he agreed with Lord Diplock on a very general proposition as to the law of trusts.
+The law reporter has managed to find a ratio for the headnote (at p 886) only by putting these two propositions together with some remarks by Lord Reid (at p 896) which have a quite different flavour.
+We can only guess at the order in which the speeches were composed, but the third and fourth sentences of the passage from Lord Reids speech, set out in the preceding paragraph, suggest that Lord Reid had read Lord Diplocks speech in draft, and thought that it was about an imputation of a deemed intention.
+This sort of constructive intention (or any other constructive state of mind), and the difficulties that they raise, are familiar in many branches of the law.
+Whenever a judge concludes that an individual intended, or must be taken to have intended, or knew, or must be taken to have known, there is an elision between what the judge can find as a fact (usually by inference) on consideration of the admissible evidence, and what the law may supply (to fill the evidential gap) by way of a presumption.
+The presumption of a resulting trust is a clear example of a rule by which the law does impute an intention, the rule being based on a very broad generalisation about human motivation, as Lord Diplock noted in Pettitt v Pettitt [1970] AC 777, 824: It would, in my view, be an abuse of the legal technique for ascertaining or imputing intention to apply to transactions between the post war generation of married couples presumptions which are based upon inferences of fact which an earlier generation of judges drew as to the most likely intentions of earlier generations of spouses belonging to the propertied classes of a different social era.
+That was 40 years ago and we are now another generation on.
+The decision in Stack v Dowden produced a division of the net proceeds of sale of the house in shares roughly corresponding to the parties financial contributions over the years.
+The majority reached that conclusion by inferring a common intention (see Lady Hales opinion at para 92, following her detailed analysis of the facts starting at para 86).
+Only Lord Neuberger reached the same result by applying the classic resulting trust doctrine (which involved, it is to be noted, imputing an intention to the parties).
+In deference to the comments of Lord Neuberger and Rimer LJ, we accept that the search is primarily to ascertain the parties actual shared intentions, whether expressed or to be inferred from their conduct.
+However, there are at least two exceptions.
+The first, which is not this case, is where the classic resulting trust presumption applies.
+Indeed, this would be rare in a domestic context, but might perhaps arise where domestic partners were also business partners: see Stack v Dowden, para 32.
+The second, which for reasons which will appear later is in our view also not this case but will arise much more frequently, is where it is clear that the beneficial interests are to be shared, but it is impossible to divine a common intention as to the proportions in which they are to be shared.
+In those two situations, the court is driven to impute an intention to the parties which they may never have had.
+Lord Diplock, in Gissing v Gissing [1971] AC 886, 909, pointed out that, once the court was satisfied that it was the parties common intention that the beneficial interest was to be shared in some proportion or other, the court might have to give effect to that common intention by determining what in all the circumstances was a fair share.
+And it is that thought which is picked up in the subsequent cases, culminating in the judgment of Chadwick LJ in Oxley v Hiscock [2005] Fam 211, paras 65, 66 and 69, and in particular the passage in para 69 which was given qualified approval in Stack v Dowden: the answer is that each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property.
+Chadwick LJ was not there saying that fairness was the criterion for determining whether or not the property should be shared, but he was saying that the court might have to impute an intention to the parties as to the proportions in which the property would be shared.
+In deducing what the parties, as reasonable people, would have thought at the relevant time, regard would obviously be had to their whole course of dealing in relation to the property.
+However, while the conceptual difference between inferring and imputing is clear, the difference in practice may not be so great.
+In this area, as in many others, the scope for inference is wide.
+The law recognizes that a legitimate inference may not correspond to an individuals subjective state of mind.
+As Lord Diplock also put it in Gissing v Gissing [1971] AC 886, 906: As in so many branches of English law in which legal rights and obligations depend upon the intentions of the parties to a transaction, the relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that partys words or conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party.
+This point has been developed by Nick Piska, Intention, Fairness and the Presumption of Resulting Trust after Stack v Dowden (2008) 71 MLR 120.
+He observes at pp 127 128: Subjective intentions can never be accessed directly, so the court must always direct itself to a consideration of the parties objective intentions through a careful consideration of the relevant facts.
+The point is that the imputation/inference distinction may well be a distinction without a difference with regard to the process of determining parties intentions.
+It is not that the parties subjective intentions are irrelevant but rather that a finding as to subjective intention can only be made on an objective basis.
+In several parts of the British Commonwealth federal or provincial legislation has given the court a limited jurisdiction to vary or adjust proprietary rights in the home when an unmarried couple split up.
+Most require a minimum period of two years cohabitation (or less if there are children) before the jurisdiction is exercisable.
+In England the Law Commission has made recommendations on similar lines (Law Com No 307, Cohabitation: The Financial Consequences of Relationship Breakdown, 2007), but there are no plans to implement them in the near future.
+In the meantime there will continue to be many difficult cases in which the court has to reach a conclusion on sparse and conflicting evidence.
+It is the courts duty to reach a decision on even the most difficult case.
+As the deputy judge (Mr Nicholas Strauss QC) said in his admirable judgment [2009] EWHC 1713 (Ch), [2010] 1 WLR 2401, para 33 (in the context of a discussion of fairness) that is what courts are for.
+That was an echo (conscious or unconscious) of what Sir Thomas Bingham MR said, in a different family law context, in Re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1, 33.
+The trial judge has the onerous task of finding the primary facts and drawing the necessary inferences and conclusions, and appellate courts will be slow to overturn the trial judges findings.
+The facts of this case
+The parties met in 1980.
+Ms Jones worked as a mobile hairdresser.
+Mr Kernott worked as a self employed ice cream salesman during the summer and claimed benefits during the winter if he could find no other work.
+The judge found that their incomes were not very different from one another.
+Ms Jones bought a mobile home in her sole name in 1981.
+Mr Kernott moved in with her (according to the agreed statement of facts and issues) in 1983.
+Their first child was born in June 1984.
+In May 1985 Ms Jones sold her mobile home and the property in question in these proceedings, 39 Badger Hall Avenue, Thundersley, Essex, was bought in their joint names.
+The purchase price was 30,000.
+This was relatively cheap because the house had belonged to the elderly mother of a client of Ms Jones.
+The deposit of 6000 was paid from the proceeds of sale of Ms Jones mobile home.
+The balance was raised by way of an endowment mortgage in their joint names.
+Mr Kernott paid 100 per week towards the household expenses while they lived at the property.
+Ms Jones paid the mortgage and other household bills out of their joint resources.
+In March 1986 they jointly took out a loan of 2000 to build an extension.
+Mr Kernott did some of the labouring work and paid friends and relations to do other work on it.
+The judge found that the extension probably enhanced the value of the property by around 50%, from 30,000 to 44,000.
+Their second child was born in September 1986.
+Mr Kernott moved out of the property in October 1993.
+The parties had lived there together, sharing the household expenses, for eight years and five months.
+Thereafter Ms Jones remained living in the property with the children and paid all the household expenses herself.
+Mr Kernott made no further contribution towards the acquisition of the property and the judge also found that he made very little contribution to the maintenance and support of their two children who were being looked after by their mother.
+This situation continued for some 14 and a half years until the hearing before the judge.
+The Badger Hall Avenue property was put on the market in October 1995 for 69,995, but was not sold.
+This may be some indication of its market value at that time but no more than that.
+At some date which is not entirely clear, the parties agreed to cash in a joint life insurance policy (not, of course, the endowment policy supporting the mortgage) and the proceeds were divided between them.
+The judge held that this was to enable Mr Kernott to put down a deposit on a home of his own.
+This he did in May 1996, when he bought 114 Stanley Road, Benfleet, for around 57,000 with a deposit of 2,800 and a mortgage of 54,150.
+The judge observed that he was able to afford his own accommodation because he was not making any contribution towards the former family home, nor was he making any significant contribution towards the support of his children.
+The judge also found that whilst the intentions of the parties may well have been at the outset to provide them as a couple with a home for themselves and their progeny, those intentions have altered significantly over the years to the extent that [Mr Kernott] demonstrated that he had no intention until recently of availing himself of the beneficial ownership in this property, having ignored it completely by way of any investment in it or attempt to maintain or repair it whilst he had his own property on which he concentrated.
+At the time of the hearing before the judge in April 2008, 39 Badger Hall Avenue was valued at 245,000.
+The outstanding mortgage debt was 26,664.
+The endowment policy supporting that mortgage was worth 25,209.
+On the basis that they had contributed jointly to the endowment for eight years and five months and that Ms Jones had contributed alone for fourteen and a half years, it was calculated that Mr Kernott was entitled to around 4712 of its value, which would leave Ms Jones with 20,497. 114 Stanley Road was valued at 205,000, with an outstanding mortgage of 37,968 (suggesting that this was a repayment rather than an endowment mortgage).
+If the whole of the endowment policy was used to discharge the mortgage, the net worth of 39 Badger Hall Avenue would be 243,545.
+If the mortgage on 114 Stanley Road was an ordinary repayment mortgage, the net worth of 114 Stanley Road would be 167,032.
+These proceedings
+Mr Kernott initiated correspondence with a view to claiming his interest in the property in 2006.
+Ms Jones began proceedings in the Southend County Court in October 2007, claiming a declaration under section 14 of the Trusts of Land and Appointment of Trustees Act 1996: (i) that she owned the entire beneficial interest in 39 Badger Hall Avenue; alternatively (ii) if Mr Kernott had any beneficial interest in 39 Badger Hall Avenue, that she also had a beneficial interest in 114 Stanley Road, and that these respective interests be determined by the court; and (iii) that either she be registered as sole proprietor of 39 Badger Hall Avenue, or that they be registered as joint proprietors of 114 Stanley Road.
+At the trial, which took place in April 2008, Ms Jones conceded that, in 1993 when the couple separated, there would not have been enough evidence to displace the presumption that their beneficial interests followed the legal title, so that they were then joint tenants in law and equity.
+She also conceded that she had no legal claim on 114 Stanley Road.
+Her contention was that its purchase, along with other events since their separation, was evidence that their intentions with respect to the beneficial interests in 39 Badger Hall Avenue had changed.
+The judge accepted that contention.
+In the light of Stack v Dowden and Oxley v Hiscock he had to consider what is fair and just between the parties bearing in mind what I have found with regard to the whole course of dealing between them.
+He concluded that the value of the property should be divided as to 90% for Ms Jones and 10% for Mr Kernott.
+On the figures given above, had the property been sold then, and the whole of the endowment policy used to defray the mortgage debt, that would have given her 219,190 and him 24,355 (giving him a total of 191,387 from the equity in his home and the sale of the property).
+Mr Kernott appealed to the High Court, arguing that the judge was wrong to infer or impute an intention that the parties beneficial interests should change after their separation and to quantify these in the way which he considered fair.
+The deputy judge, Mr Nicholas Strauss QC, after a careful review of the authorities, concluded that the change in intention could readily be inferred or imputed from the parties conduct: [2009] EWHC 1713 (Ch), [2010] 1 WLR 2401, para 47.
+In the absence of any indication by words or conduct as to how their shares should be altered, the appropriate criterion was what he considered to be fair and just: para 49.
+The judges assessment could be justified, given that their direct contributions were a little over 4:1 in Ms Jones favour and that the larger part of the capital gain on the property must have arisen after 1993.
+By not contributing to that property, Mr Kernott had been able to buy another property on which there was almost as great a capital gain.
+The parties could not be taken to have intended that he should have a significant part of the increased value of 39 Badger Hall Avenue as well as the whole of the capital gain from 114 Stanley Road: para 51.
+The Court of Appeal, by a majority, allowed Mr Kernotts appeal and declared that the parties owned the property as tenants in common in equal shares: [2010] EWCA Civ 578, [2010] 1 WLR 2401.
+Jacob LJ, who dissented, held that the judge had applied the right legal test and that there was a proper basis in the evidence for concluding that the parties must be taken to have intended that they should each have a fair and just share.
+He would not interfere with the judges assessment of the fair proportions.
+Rimer LJ, in the majority, held that there was nothing to indicate that the parties intentions had changed after their separation.
+A crucial part of his reasoning was his interpretation of the decision in Stack v Dowden: that it did not enable courts to find, by way of the imputation route, an intention where none was expressly uttered nor inferentially formed: para 77.
+Wall P also concluded that he could not infer an intention to change the beneficial interests from the parties conduct: paras 57, 58.
+Discussion
+It is always salutary to be confronted with the ambiguities which later emerge in what seemed at the time to be comparatively clear language.
+The primary search must always be for what the parties actually intended, to be deduced objectively from their words and their actions.
+If that can be discovered, then, as Mr Nicholas Strauss QC pointed out in the High Court, it is not open to a court to impose a solution upon them in contradiction to those intentions, merely because the court considers it fair to do so.
+In a case such as this, where the parties already share the beneficial interest, and the question is what their interests are and whether their interests have changed, the court will try to deduce what their actual intentions were at the relevant time.
+It cannot impose a solution upon them which is contrary to what the evidence shows that they actually intended.
+But if it cannot deduce exactly what shares were intended, it may have no alternative but to ask what their intentions as reasonable and just people would have been had they thought about it at the time.
+This is a fallback position which some courts may not welcome, but the court has a duty to come to a conclusion on the dispute put before it.
+In this case, there is no need to impute an intention that the parties beneficial interests would change, because the judge made a finding that the intentions of the parties did in fact change.
+At the outset, their intention was to provide a home for themselves and their progeny.
+But thereafter their intentions did change significantly.
+He did not go into detail, but the inferences are not difficult to draw.
+They separated in October 1993.
+No doubt in many such cases, there is a period of uncertainty about where the parties will live and what they will do about the home which they used to share.
+This home was put on the market in late 1995 but failed to sell.
+Around that time a new plan was formed.
+The life insurance policy was cashed in and Mr Kernott was able to buy a new home for himself.
+He would not have been able to do this had he still had to contribute towards the mortgage, endowment policy and other outgoings on 39 Badger Hall Avenue.
+The logical inference is that they intended that his interest in Badger Hall Avenue should crystallise then.
+Just as he would have the sole benefit of any capital gain in his own home, Ms Jones would have the sole benefit of any capital gain in Badger Hall Avenue.
+Insofar as the judge did not in so many words infer that this was their intention, it is clearly the intention which reasonable people would have had had they thought about it at the time.
+But in our view it is an intention which he both could and should have inferred from their conduct.
+A rough calculation on this basis produces a result so close to that which the judge produced that it would be wrong for an appellate court to interfere.
+If we take the value of the property as 60,000 in late 1993 (or 70,000 in late 1995) and the value in 2008 as 245,000, and share the 60,000 (or 70,000) equally between the parties, but leave the balance to Ms Jones, that gives him 30,000 (35,000) and her 215,000 (210,000), roughly 12% (14%) and 88% (86%) respectively.
+This calculation ignores the mortgage, which may be the correct approach, as in 2008 the mortgage debt was almost fully covered by the endowment policy which was always meant to discharge it.
+Introducing the mortgage liability in 1993 (or 1995) into the calculation would be to Mr Kernotts disadvantage, because at that stage the endowment policy would not have been sufficient to discharge the debt, so the equity would have been less.
+Further accounting
+On this approach, there is no scope for further accounting between the parties (which was obviously contemplated as a future possibility by Rimer LJ on his approach).
+Had their beneficial interests in the property remained the same, there would have been the possibility of cross claims: Mr Kernott against Ms Jones for an occupation rent, and Ms Jones against Mr Kernott for his half share in the mortgage interest and endowment premiums which she had paid.
+It is quite likely, however, that the court would hold that there was no liability to pay an occupation rent, at least while the home was needed for the couples children, whereas the liability to contribute towards the mortgage and endowment policy would accumulate at compound interest over the years since he ceased to contribute.
+This exercise has not been done.
+In a case such as this it would involve a quite disproportionate effort, both to discover the requisite figures (even supposing that they could be discovered) and to make the requisite calculations, let alone to determine what the ground rules should be.
+The parties legal advisers are to be commended for the proportionate approach which they have taken to the preparation of this case.
+Conclusion
+In summary, therefore, the following are the principles applicable in a case such as this, where a family home is bought in the joint names of a cohabiting couple who are both responsible for any mortgage, but without any express declaration of their beneficial interests. tenants both in law and in equity. (1) The starting point is that equity follows the law and they are joint (2) That presumption can be displaced by showing (a) that the parties had a different common intention at the time when they acquired the home, or (b) that they later formed the common intention that their respective shares would change. (3) Their common intention is to be deduced objectively from their conduct: the relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that partys words and conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party (Lord Diplock in Gissing v Gissing [1971] AC 886, 906).
+Examples of the sort of evidence which might be relevant to drawing such inferences are given in Stack v Dowden, at para 69. (4) In those cases where it is clear either (a) that the parties did not intend joint tenancy at the outset, or (b) had changed their original intention, but it is not possible to ascertain by direct evidence or by inference what their actual intention was as to the shares in which they would own the property, the answer is that each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property: Chadwick LJ in Oxley v Hiscock [2005] FAm 211, para 69.
+In our judgment, the whole course of dealing in relation to the property should be given a broad meaning, enabling a similar range of factors to be taken into account as may be relevant to ascertaining the parties actual intentions. (5) Each case will turn on its own facts.
+Financial contributions are relevant but there are many other factors which may enable the court to decide what shares were either intended (as in case (3)) or fair (as in case (4)).
+This case is not concerned with a family home which is put into the name of one party only.
+The starting point is different.
+The first issue is whether it was intended that the other party have any beneficial interest in the property at all.
+If he does, the second issue is what that interest is.
+There is no presumption of joint beneficial ownership.
+But their common intention has once again to be deduced objectively from their conduct.
+If the evidence shows a common intention to share beneficial ownership but does not show what shares were intended, the court will have to proceed as at para 51(4) and (5) above.
+The assumptions as to human motivation, which led the courts to impute particular intentions by way of the resulting trust, are not appropriate to the ascertainment of beneficial interests in a family home.
+Whether they remain appropriate in other contexts is not the issue in this case.
+judge.
+It follows that we would allow this appeal and restore the order of the I agree that the appeal should be allowed for the reasons given in the joint
+LORD COLLINS
+judgment of Lord Walker and Lady Hale.
+It is not surprising that the decision in Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432 gave rise to difficulties.
+It was a decision which was responding to the increasing number of co habiting couples with joint interests in their homes, and to the fact that couples (whether married or unmarried) rarely make agreements about their respective shares in their homes, and to the enormous inflation in property prices which has made the division of ownership by reference to initial financial contributions artificial and potentially productive of injustice.
+The absence of legislative intervention (which continues despite the Law Commission Report on Cohabitation: the Financial consequences of Relationship Breakdown, 2007) made it necessary for the judiciary to respond by adapting old principles to new situations.
+That has not been an easy task.
+It is illustrated by the fact that in both Stack v Dowden and in this case the results at the highest appellate level have been unanimous but the reasoning has not.
+I would hope that this decision will lay to rest the remaining difficulties, and that it will not be necessary to revisit this question by reconsideration of the correctness of Stack v Dowden, by which this court is bound (subject to the application of Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 regarding departure from previous decisions).
+It should not be necessary because the differences in reasoning are largely terminological or conceptual and are likely to make no difference in practice.
+But should it be necessary, the court (no doubt with a panel of seven or nine) would need much fuller argument (together with citation of the enormous critical literature which the decision has spawned) than was presented to the court on this appeal.
+There have been at least three causes of the difficulties with Stack v Dowden.
+The first is that the previous authorities were mainly concerned with a different factual situation, namely where the property was registered in the name of only one of the parties.
+Second, they did not in any event speak with one voice, particularly on that part of Stack v Dowden which has caused most difficulty, namely whether in this part of the law there is any useful distinction between inferred intention and imputed intention: contrast Gissing v Gissing [1971] AC 886 with Lloyds Bank v Rosset [1991] 1 AC 107.
+The third reason is that (despite it being trite that it is wrong to do so) Baroness Hales speech has been treated as if it were a statute, and ambiguities in it have been exploited or exaggerated, particularly the passage at para 60 in which she has been taken as having treated inferred intention and imputed intention as interchangeable, and the passage at para 61 in which she approved, or substantially approved, the reasoning of Chadwick LJ in Oxley v Hiscock [2005] Fam 211, para 69.
+The reasoning of Baroness Hale and Lord Walker, taken together, in Stack v Dowden was as follows: (1) When property is held in joint names, and without any express declaration of trust, the starting point is that the beneficial interest is held equally and there is a heavy burden on the party asserting otherwise: paras 14, 33, 54, 56, 68. (2) That is because it will almost always have been a conscious decision to put the property into joint names, and committing oneself to spend large sums of money on a place to live is not normally done by accident or without giving it thought: para 66. (3) Consequently it is to be expected that joint transferees would have spelled out their beneficial interests when they intended them to be different from their legal interests ([54]) and cases in which the burden will be discharged will be very unusual (para 68). (4) The contrary can be proved by looking at all the relevant circumstances in order to discern the parties common intention: [59]. (5) There is no presumption that the parties intended that the beneficial interest be shared in proportion to their financial contributions to the acquisition of the property: paras 31, 59 60 (thereby rejecting the approach of the resulting trust analysis as a starting point favoured by Lord Neuberger, dissenting, but not as to the result). (6) The search is to ascertain the parties shared intentions, actual, inferred or imputed, with respect to the property in the light of their whole course of conduct in relation to it: para 60. (7) The search was for the result which reflected what the parties must, in the light of their conduct, be taken to have intended, and it did not enable the court to abandon that search in favour of the result which the court itself considered fair: para 61. (8) The matters to be taken into account are discussed in detail at paras 33 34 and 68 70, and it is not necessary to rehearse them here.
+The crucial parts of Chadwick LJs summary of the principles in his magisterial judgment in Oxley v Hiscock [2005] Fam 211, paras 68 69 take their main inspiration from the speech of Lord Diplock in Gissing v Gissing [1971] AC 886 and the judgment of Nourse LJ in Anderson v Stokes [1991] 1 FLR 391, 400 401.
+For present purposes it is only necessary to note that his discussion is dealing with the case where a home is purchased in the sole name of one party in a co habiting couple, each of them has made some financial contribution to the purchase, and there is no declaration of trust as to the beneficial ownership.
+After a treatment of the way in which a common intention that each will have a beneficial interest can be inferred from discussions between the parties or, in the absence of discussion, from the fact that each has made contributions to the purchase price, Chadwick LJ moved at para 69 to a second question, namely what is the extent of the parties respective beneficial interests in the property?.
+It was in that context that he said: [I]n many such cases, the answer will be provided by evidence of what they said and did at the time of the acquisition.
+But, in a case where there is no evidence of any discussion between them as to the amount of the share which each was to haveand even in a case where the evidence is that there was no discussion on that pointthe question still requires an answer.
+It must now be accepted that the answer is that each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property.
+And, in that context, the whole course of dealing between them in relation to the property includes the arrangements which they make from time to time in order to meet the outgoings (for example, mortgage contributions, council tax and utilities, repairs, insurance and housekeeping) which have to be met if they are to live in the property as their home.
+It was in the light of the whole of Chadwick LJs reasoning that in Stack v Dowden Baroness Hale referred to the Law Commission Discussion Paper on Sharing Homes, para 4.27, and went on to say at para 61: First, it emphasises that the search is still for the result which reflects what the parties must, in the light of their conduct, be taken to have intended.
+Second, therefore, it does not enable the court to abandon that search in favour of the result which the court itself considers fair.
+In its context that was plainly a reference to the first stage of the enquiry, namely whether there was a common intention that the property be beneficially owned other than in line with the legal title.
+I agree, therefore, that authority justifies the conceptual approach of Lord Walker and Lady Hale that, in joint names cases, the common intention to displace the presumption of equality can, in the absence of express agreement, be inferred (rather than imputed: see para 31 of the joint judgment) from their conduct, and where, in such a case, it is not possible to ascertain or infer what share was intended, each will be entitled to a fair share in the light of the whole course of dealing between them in relation to the property.
+That said, it is my view that in the present context the difference between inference and imputation will hardly ever matter (as Lord Walker and Lady Hale recognise at para 34), and that what is one persons inference will be another persons imputation.
+A similar point has arisen in many other contexts, for example, the difference between implied terms which depend on the parties actual intention, terms based on a rule of law, and implied terms based on an intention imputed to the parties from their actual circumstances: Luxor (Eastbourne) Ltd v Cooper [1941] AC 108, 137, per Lord Wright.
+Or the point under the law prior to the Contracts (Applicable Law) Act 1990 as to whether (in the absence of an express choice) the proper law of the contract depended on an intention to be inferred from the circumstances or on the law which had the closest connection with the contract.
+Nor will it matter in practice that at the first stage, of ascertaining the common intention as to the beneficial ownership, the search is not, at least in theory, for what is fair.
+It would be difficult (and, perhaps, absurd) to imagine a scenario involving circumstances from which, in the absence of express agreement, the court will infer a shared or common intention which is unfair.
+The courts are courts of law, but they are also courts of justice.
+LORD KERR
+I agree that this appeal should be allowed.
+There are differences of some significance in the reasoning that underlies the joint judgment of Lord Walker and Lady Hale and that contained in Lord Wilsons judgment.
+I agree with Lord Collins that these are both terminological and conceptual.
+I am less inclined to agree, however, that the divergence in reasoning is unlikely to make a difference in practice.
+While it may well be that the outcome in many cases will be the same, whether one infers an intention or imputes it, that does not mean that the process by which the result is arrived at is more or less the same.
+Indeed, it seems to me that a markedly and obviously different mode of analysis will generally be required.
+Before elaborating briefly on that proposition, let me turn very shortly to the areas in which, as I see it, there is consensus among the other members of the court.
+The following appear to be the areas of agreement: (i) In joint names cases, the starting point is that equity follows the law.
+One begins the search for the proper allocation of shares in the property with the presumption that the parties are joint tenants and are thus entitled to equal shares; (ii) That presumption can be displaced by showing (a) that the parties had a different common intention at the time when they acquired the home or (b) that they later formed the common intention that their respective shares would change; (iii) The common intention, if it can be inferred, is to be deduced objectively from the parties conduct; (iv) Where the intention as to the division of the property cannot be inferred, each is entitled to that share which the court considers fair.
+In considering the question of what is fair the court should have
+regard to the whole course of dealing between the parties
+The areas of disagreement appear to be these: (a) is there sufficient evidence in the present case from which the parties intentions can be inferred? (b) is the difference between inferring and imputing an intention likely to be great as a matter of general practice? How far should the court go in seeking to infer actual intention as to shares?
+At para 33 above Lord Walker and Lady Hale have quoted the important judgment of Chadwick LJ in Oxley v Hiscock [2005] Fam 211 and at para 52(4) have said that, on the authority of what was said in para 69 of Oxley, where it is not possible to ascertain what the actual intention of the parties was as to the shares in which they would own the property, each is entitled to the share which the court considers fair having regard to the whole course of dealing between them in relation to the property.
+This, I believe, casts the test somewhat differently from the way that it was formulated by Chadwick LJ.
+At para 69 of Oxley he said this: in a case where there is no evidence of any discussion between them as to the amount of the share which each was to haveand even in a case where the evidence is that there was no discussion on that pointthe question still requires an answer.
+It must now be accepted that (at least in this court and below) the answer is that each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the
+property
+Chadwick LJ did not confine the circumstances in which an intention is to be imputed to those where it was impossible to infer an intention.
+Rather, he considered that it was proper and necessary to impute it when there had been no discussion about the amounts of the shares that each was to have or where there was no evidence of such a discussion.
+Lord Walker and Lady Hale have pointed out that Oxley v Hiscock received qualified approval in Stack v Dowden [2007] 2 AC 432.
+It seems clear, however, that there was no approval of the notion that an intention should be imputed where there had been no discussion between the parties for in para 69 of her opinion in Stack Lady Hale listed several factors that required to be considered in divining the parties true intentions few of which would involve any verbal exchange whatever.
+It is hardly controversial to suggest that the parties intention should be given effect to where it can be ascertained and that, although discussions between them will always be the most reliable basis on which to draw an inference as to that intention, these are not the only circumstances in which that exercise will be possible.
+There is a natural inclination to prefer inferring an intention to imputing one.
+If the parties intention can be inferred, the court is not imposing a solution.
+It is, instead, deciding what the parties must be taken to have intended and where that is possible it is obviously preferable to the courts enforcing a resolution.
+But the conscientious quest to discover the parties actual intention should cease when it becomes clear either that this is simply not deducible from the evidence or that no common intention exists.
+It would be unfortunate if the concept of inferring were to be strained so as to avoid the less immediately attractive option of imputation.
+In summary, therefore, I believe that the court should anxiously examine the circumstances in order, where possible, to ascertain the parties intention but it should not be reluctant to recognise, when it is appropriate to do so, that inference of an intention is not possible and that imputation of an intention is the only course to follow.
+In this context, it is important to understand what is meant by imputing an intention.
+There are reasons to question the appropriateness of the notion of imputation in this area but, if it is correct to use this as a concept, I strongly favour the way in which it was described by Lord Neuberger in Stack v Dowden [2007] 2 AC 432 para 126, where he said that an imputed intention was one which was attributed to the parties, even though no such actual intention could be deduced from their actions and statements, and even though they had no such intention.
+This exposition draws the necessary strong demarcation line between attributing an intention to the parties and inferring what their intention was in fact.
+The reason that I question the aptness of the notion of imputing an intention is that, in the final analysis, the exercise is wholly unrelated to ascertainment of the parties views.
+It involves the court deciding what is fair in light of the whole course of dealing with the property.
+That decision has nothing to do with what the parties intended, or what might be supposed would have been their intention had they addressed that question.
+In many ways, it would be preferable to have a stark choice between deciding whether it is possible to deduce what their intention was and, where it is not, deciding what is fair, without elliptical references to what their intention might have or should have been.
+But imputing intention has entered the lexicon of this area of law and it is probably impossible to discard it now.
+While the dichotomy between inferring and imputing an intention remains, however, it seems to me that it is necessary that there be a well marked dividing line between the two.
+As soon as it is clear that inferring an intention is not possible, the focus of the courts attention should be squarely on what is fair and, as I have said, that is an obviously different examination than is involved in deciding what the parties actually intended.
+Is there sufficient evidence in the present case from which the parties intentions can be inferred?
+Lord Walker and Lady Hale have concluded that the failure of the parties to sell their home in Badger Hall Avenue in late 1995, leading as it did to the cashing in of the life insurance policy, meant that Mr Kernott intended that his interest in the Badger Hall Avenue property should crystallise then.
+That may indeed have been his intention but, for my part, I would find it difficult to infer that it actually was what he then intended.
+As the deputy High Court judge, Nicholas Strauss QC put it in para 48 of his judgment, the bare facts of his departure from the family home and acquisition of another property are a slender foundation on which to conclude that he had entirely abandoned whatever stake he had in the previously shared property.
+On the other hand, I would have no difficulty in concluding, as did Mr Strauss and as would Lord Wilson, that it was eminently fair that the property should be divided between the parties in the shares decreed by Judge Dedman.
+Like Lord Wilson, therefore, I would prefer to allow this appeal on the basis that it is impossible to infer that the parties intended that their shares in the property be apportioned as the judge considered they should be but that such an intention should be imputed to them.
+LORD WILSON
+In the light of the continued failure of Parliament to confer upon the courts limited redistributive powers in relation to the property of each party upon the breakdown of a non marital relationship, I warmly applaud the development of the law of equity, spear headed by Lady Hale and Lord Walker in their speeches in Stack v Dowden [2007] 2 AC 432, and reiterated in their judgment in the present appeal, that the common intention which impresses a constructive trust upon the legal ownership of the family home can be imputed to the parties to the relationship.
+In his speech of dissent (other than in relation to the result) in Stack v Dowden Lord Neuberger observed, at para 125, that the distinction between inference and imputation was important.
+He proceeded as follows: 126 An inferred intention is one which is objectively deduced to be the subjective actual intention of the parties, in the light of their actions and statements.
+An imputed intention is one which is attributed to the parties, even though no such actual intention can be deduced from their actions and statements, and even though they had no such intention.
+Imputation involves concluding what the parties would have intended, whereas inference involves concluding what they did intend.
+Almost 40 years earlier, in Pettitt v Pettitt [1970] AC 777, Lord Diplock sought to develop the law in a way similar to that achieved in Stack v Dowden.
+The action was between spouses and, analogously, was brought at a time when the divorce court lacked power to make a property adjustment order in relation to the matrimonial home.
+Lord Diplock said, at p 823F G: Unless it is possible to infer from the conduct of the spouses at the time of their concerted action in relation to acquisition or improvement of the family asset that they did form an actual common intention as to the legal consequences of their acts upon the proprietary rights in the asset the court must impute to them a constructive common intention which is that which in the courts opinion would have been formed by reasonable spouses.
+In Gissing v Gissing [1971] AC 886, 904E F, however, Lord Diplock accepted that in Pettitt he had been in the minority in suggesting that the common intention could be imputed.
+So he proceeded to analyse the case in terms of whether the necessary intention could be inferred; but he added ingeniously at p 909 C E that it might be possible to infer a common intention on the part of the spouses that their interests in the property should be in such proportions as might ultimately be seen to be fair! It is worthy of note, that in Pettitt Lord Reid had, at p 795D G, also been cautiously amenable to the idea of imputing the necessary intention but had, at p 797A B, expressed a firm preference for Parliamentary intervention; and that in Gissing, in the passage quoted by Lady Hale and Lord Walker at para 29 above, Lord Reid saw fit to reiterate those views notwithstanding that the argument in favour of a power to impute had for the time being already been lost.
+In Oxley v Hiscock [2005] Fam 211, paras 68 and 69 Chadwick LJ, pointed out that assertions that the family home was held under a constructive trust raised two questions.
+The home had been held in Mr Hiscocks sole name so, for Chadwick LJ, the first question was whether Mrs Oxley could establish that they had nevertheless had a common intention that she should have some beneficial share in it.
+In the present case, however, the home is held in the joint names of the parties so, for us, the first question is whether Ms Jones can establish that they nevertheless had (albeit not necessarily at the outset) a common intention that the beneficial shares of herself and Mr Kernott should be in some proportions other than joint and equal.
+The second question, which arises in the event only of an affirmative answer to the first, is to determine the proportions in which the beneficial shares are held.
+In relation to the second question Chadwick LJ concluded, in his summary at para 69, that, where there was no evidence of any discussion between the parties as to the proportions in which their beneficial shares in the family home were to be held, each was entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property; and he had made clear, at para 66, that such an entitlement arose because what the court is doing, in cases of this nature, is to supply or impute a common intention as to the parties respective shares (in circumstances in which there was, in fact, no common intention) on the basis of that whichis shown to be fair.
+Emboldened by developments in the case law since the decision in Gissing, and apparently in particular by the decision of the Court of Appeal in Drake v Whipp [1996] FLR 826, Chadwick LJ thus saw fit to reassert the power to impute.
+In Pettitt Lord Diplock had referred to reasonable spouses rather than to fairness; but reasonable spouses will intend only what is fair.
+The analysis by Chadwick LJ of the proper approach to the second question was correct.
+In paras 31 and 51(4) above Lord Walker and Lady Hale reiterate that, although its preference is always to collect from the evidence an expressed or inferred intention, common to the parties, about the proportions in which their shares are to be held, equity will, if collection of it proves impossible, impute to them the requisite intention.
+Before us is a case in which Judge Dedman, the trial judge, found and, was entitled on the evidence to find that the common intention required by the first question could be inferred.
+Thus the case does not require us to consider whether modern equity allows the intention required by the first question also to be imputed if it is not otherwise identifiable.
+That question will merit careful thought.
+In para 61 of her ground breaking speech in Stack v Dowden Lady Hale quoted, with emphasis, the words of Chadwick LJ in para 69 of Oxley v Hiscock, which I have quoted in para 83 above.
+Then she quoted a passage from a Discussion Paper published by the Law Commission in July 2002 and entitled Sharing Homes about the proper approach to identifying the proportions which were intended .
+Finally she added four sentences to each of which, in quoting them as follows, I take the liberty of attributing a number: [1.] That may be the preferable way of expressing what is essentially the same thought, for two reasons. [2.] First, it emphasises that the search is still for the result which reflects what the parties must, in the light of their conduct, be taken to have intended. [3.] Second, therefore, it does not enable the court to abandon that search in favour of the result which the court itself considers fair. [4.] For the court to impose its own view of what is fair upon the situation in which the parties find themselves would be to return to the days before Pettitt v Pettitt without even the fig leaf of section 17 of the 1882 Act.
+I leave on one side Lady Hales first sentence although, whereas Chadwick LJ was identifying the criterion for imputing the common intention, the context of the passage in the Discussion Paper suggests that the Law Commission was postulating a criterion for inferring it.
+On any view Lady Hales second sentence is helpful; and, by her reference to what the parties must, in the light of their conduct, be taken to have intended (as opposed to what they did intend), Lady Hale made clear that, by then, she was addressing the power to resort to imputation.
+Lady Hales fourth sentence has been neatly explained by Mr Nicholas Strauss QC, deputy judge of the Chancery Division, who determined the first appeal in these proceedings, at para 30 as being that, in the event that the evidence were to suggest that, whether by expression or by inference, the parties intended that the beneficial interests in the home should be held in certain proportions, equity would not impose different proportions upon them; and, at para 47 above, Lord Walker and Lady Hale endorse Mr Strausss explanation.
+The problem has lain in Lady Hales third sentence.
+Where equity is driven to impute the common intention, how can it do so other than by search for the result which the court itself considers fair? The sentence was not obiter dictum so rightly, under our system, judges below the level of this court have been unable to ignore it.
+Even in these proceedings judges in the courts below have wrestled with it.
+Mr Strauss observed, at para 31, that it was difficult to see how at that final stage of the inquiry the process could work without the courts supply of what it considered to be fair.
+In his judgment on the second appeal Lord Justice Rimer went so far as to suggest, at para 77, that Lady Hales third sentence must have meant that, contrary to appearances, she had not intended to recognise a power to impute a common intention at all.
+I respectfully disagree with Lady Hales third sentence.
+Lord Walker and Lady Hale observe, at para 34 above, that in practice the difference between inferring and imputing a common intention to the parties may not be great.
+I consider that, as a generalisation, their observation goes too far at least if the court is to take (as in my view it should) an ordinarily rigorous approach to the task of inference.
+Indeed in the present case they conclude, at paras 48 and 49, that, in relation to Chadwick LJs second question the proper inference from the evidence, which, if he did not draw, the trial judge should have drawn, was that the parties came to intend that the proportions of the beneficial interests in the home should be held on a basis which in effect equates to 90% to Ms Jones and to 10% to Mr Kernott (being the proportions in favour of which the judge ruled).
+As it happens, reflective perhaps of the more rigorous approach to the task of inference which I prefer, I regard it, as did Mr Strauss at [48] and [49] of his judgment, as more realistic, in the light of the evidence before the judge, to conclude that inference is impossible but to proceed to impute to the parties the intention that it should be held on a basis which equates to those proportions.
+At all events I readily concur in the result which Lord Walker and Lady Hale propose.
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+This is an appeal from an interlocutor of the First Division of the Inner House of the Court of Session (the Lord President (Hamilton), Lord Reed and Lord Emslie) in a joint referral to the Special Commissioners by Scottish Widows Plc (the Company) and Her Majestys Revenue and Customs (HMRC) under para 31 of Schedule 18 to the Finance Act 1998: [2010] CSIH 47, 2010 SLT 885, 2010 STC 2133.
+The question that was referred to the Special Commissioners for their determination was in these terms: Whether in computing the Case 1 profit or loss of Scottish Widows plc for the accounting periods ending in 2000, 2001 and 2002, amounts described by the company as transfers from Capital Reserve and included as part of the entries at line 15 of Form 40 for each period fall to be taken into account [as receipts] in computing the profit or loss as the case may be.
+It is agreed that the words as receipts, which were not in the question as referred, may be understood as following after the words into account.
+The Special Commissioners answered that question in the affirmative.
+The Company appealed against that decision and HMRC cross appealed.
+The Court of Session by a majority (Lord Emslie dissenting) refused the appeal and unanimously refused the cross appeal.
+Both sides have appealed against its decisions to this court.
+The essence of the dispute between the parties is whether, in each of the three consecutive years in question, part of the entry in line 15 of the Companys form 40 must be taken as falling within the scope of either section 83(2) or section 83(3) of the Finance Act 1989, as substituted by paragraph 16 of Schedule 8 to the Finance Act 1995 and paragraph 4 of Schedule 31 to the Finance Act 1996.
+If it falls within the scope either of these two subsections, the sum concerned will fall to be treated as a chargeable receipt for the purposes of Case 1 of Schedule D in ascertaining whether, and if so to what extent, the Company made a loss during those years.
+The Company carries on business as a life assurance company.
+Insurance business is a trade within the meaning of Case 1 of Schedule D: Income and Corporation Taxes Act 1988, section 18.
+The amounts to be taken into account in computing its profits include its investment income from its long term business fund and any increase in the value of its assets during the accounting period.
+Those profits may be computed for tax purposes in one or other of two ways.
+They may be computed on the Schedule D, Case 1 basis, the actuarial surplus being a suitable starting point for dealing with cases of this description: see Scottish Union and National Insurance Co v Inland Revenue (1889) 16 R 461, 475, per Lord President Inglis.
+Or they may be computed on the basis of the income which the insurer receives on its investments less management expenses, known as the I E basis.
+HMRC are entitled to elect to charge tax on the investment income, and they almost invariably do so as it nearly always pays the Crown to take the interest on the investments and not to trouble with the profits: Revell v Edinburgh Life Insurance Co (1906) 5 TC 221, 227 per Lord President Dunedin.
+But a Case 1 computation is nevertheless required in every case.
+The dispute between the parties arises from the demutualisation in 2000 of the Scottish Widows Fund and Life Assurance Society (the Society) and the transfer, under a scheme sanctioned by the Court, of its business to the Company.
+The scheme came into effect on 3 March 2000.
+In para 22.1 it was provided that on or after the effective date the Company was to maintain a memorandum account within its long term fund, designated as the capital reserve, which was to represent the amount of the shareholders capital held within the long term business fund.
+The capital reserve was to be divided between the Companys with profits fund and its non participating fund.
+Para 22.4 provided that the Company was to maintain records of the capital reserve and of the parts of it allocated to each of these two funds.
+While the funds comprised identifiable assets with all the qualities that attach to items of that kind, the capital reserve was a device or, as Lord Walker says in para 55, an abstraction.
+It was created for accounting purposes only and had no real life of its own.
+At the time of the transfer to the Company the value of the Societys assets was substantially in excess of its liabilities.
+But the Company sustained trading losses in each of the relevant accounting periods.
+The market value of its assets decreased from the inception of its long term business fund, due principally to falls in the value of the stock market.
+The Company claims that account should be taken of its commercial losses in its non participating fund during the relevant accounting periods.
+It has included Case 1 losses in its tax returns and computations for those periods equal to 28,689,437, 612,583,866 and 431,261, 757 respectively.
+HMRC maintain that, on a proper construction of section 83(2) of the 1989 Act, which failing of section 83(3), and having regard to entries in the Companys statutory returns for the relevant periods in which it was required to show that it had a surplus in excess of its liabilities for regulatory purposes, these claims should be disallowed.
+The Company brought various sums into account, described as transfers from the capital reserve, in the years in which they sustained losses.
+HMRC submit that each increase in the regulatory value selected by the Company falls to be treated as an increase in the value of its assets within the meaning of section 83(2)(b).
+In any event the amounts brought into account and recorded as transfers from the capital reserve fall to treated as receipts under section 83(3) because they were amounts which had previously been added to the long term business fund as part of the transfer of business to the Company from the Society.
+The statutory provisions
+Section 83, as amended, so far as relevant to this case provides as follows: (1) The following provisions of this section have effect where the profits of an insurance company in respect of its life assurance business are, for the purposes of the Taxes Act 1988, computed in accordance with the provisions of that Act applicable to Case 1 of Schedule D. (2) So far as referable to that business, the following items, as brought into account for a period of account (and not otherwise), shall be taken into account as receipts of the period (a) the companys investment income from the assets of its long term business fund, and (b) any increase in value (whether realised or not) of those assets.
+If for any period of account there is a reduction in the value referred to in paragraph (b) above (as brought into account for the period), that reduction shall be taken into account as an expense of that period. (3) In ascertaining whether or to what extent a company has incurred a loss in respect of that business in a case where an amount is added to the companys long term business fund as part of or in connection with (a) a transfer of business to the company, or (b) a demutualisation of the company not involving a transfer of business, that amount shall (subject to subsection (4) below) be taken into account for the period for which it is brought into account, as an increase in value of the assets of that fund within subsection (2)(b) above. (4) Subsection (3) above does not apply where, or to the extent that, the amount concerned (a) would fall to be taken into account as a receipt apart from this section, (b) is taken into account under subsection (2) above otherwise than by virtue of subsection (3) above, or (c) is specifically exempted from tax.
+In section 83(8) of the 1989 Act, as amended it is provided that the word add in that section, in relation to an amount and a companys long term business fund, includes transfer (whether from other assets of the company or otherwise).
+Section 83A(1), which was inserted by section 51 of and paragraph 16 of Schedule 8 to the Finance Act 1995 and amended by paragraph 6 of Schedule 31 to the Finance Act 1996, provides that brought into account in sections 83 to 83AB (as inserted by paragraph 5 of Schedule 31 to the 1996 Act) means brought into account in an account which is recognised for the purposes of those sections.
+Section 83A(2) provides: Subject to the following provisions of this section and to any regulations made by the Treasury, the accounts recognised for the purposes of those sections are (a) a revenue account prepared for the purposes of the Insurance Companies Act 1982 in respect of the whole of the companys long term business; (b) any separate revenue account required to be prepared under that Act in respect of a part of that business.
+Paragraph (b) above does not include accounts required in respect of internal linked funds.
+The revenue account that section 83A(2)(b) refers to is the regulatory return in form 40: see para 12, below.
+Section 431 of the 1988 Act contains a list of interpretative provisions relating to insurance companies.
+They include a definition of the word value: see section 83(2)(b) of the 1989 Act.
+It is in these terms: value, in relation to assets of an insurance company, means the value of the assets as taken into account for the purposes of the companys periodical return.
+Insurance companies are under an obligation to submit annual returns to the Financial Services Authority (FSA) for regulatory purposes.
+The purpose of these returns is to demonstrate that the insurer meets the regulatory standard of solvency.
+They are required to show the results of a statutory actuarial investigation, which calculates the value of the insurers liabilities and identifies the amount of surplus in excess of those liabilities.
+They must show that there is a sufficient surplus to cover any declared bonuses.
+At the time of the demutualisation the relevant regulations were to be found in the Insurance Companies Act 1982, the Insurance Companies Regulations 1994 (SI 1994/1516) and the Insurance Companies (Accounts and Statements) Regulations 1996 (SI 1996/943).
+Section 17 of the 1982 Act provides that every insurance company carrying on insurance business in the United Kingdom must prepare a revenue account for each financial year of the company, a balance sheet and a profit and loss account, the contents of which are to be such as may be prescribed by regulations.
+Section 18 provides for an actuarial investigation once in every period of twelve months of every insurance company which carries on long term business.
+Section 28 provides that it must maintain an account of the assets and liabilities attributable to its ordinary long term insurance business.
+Regulation 45(6) of the 1994 Regulations provides that an insurance company may, for the purposes of an investigation to which section 18 of the Act applied, elect to assign to any of its assets the value given to the asset in question in the books or other records of the company.
+This was already a practice of long standing in the insurance industry.
+For a detailed description of the background to these requirements and to the provisions of the Finance Act 1989 about the taxation of the life assurance business of an insurance company, reference may be made to Lord Reeds opinion in the Court of Session to which, like Lord Walker, I would pay tribute: 2010 SLT 885, paras 91 126.
+A useful summary of the FSA regime that was in force at the relevant time is to be found in Lord Emslies opinion, para 198 (ix) to (xii); see also Lord Walker, at paras 49 53, below.
+In short, the regulatory returns which a company carrying on long term life insurance was required to complete and submit included a series of numbered forms.
+Form 13 set out an analysis of all the companys admissible assets, entered at a value which broadly corresponded to their year end market value.
+Form 14 set out in line 51 the amount by which the net admissible assets exceeded the companys long term business liabilities.
+Form 40, which was headed Revenue account, set out revenue flows and expenditure for the Companys long term business fund, its with profits fund and its non participating fund, and the amount of each fund to be carried forward to form 58.
+Form 58, which was headed Valuation result and distribution of surplus, determined the amount of the actuarial surplus by comparing the value of the insurers liabilities under the policies that it has issued with the fund shown on form 40.
+The data that were used to prepare these regulatory returns were the same as those used to prepare the Companys statutory accounts.
+The amounts that were calculated by the Company as the commercial losses of its non participating fund were derived from decreases in the market value of the admissible assets less liabilities in that fund during the relevant accounting periods.
+For each of these periods, however, there were included in the figure entered as other income in line 15 of form 40 amounts described as transfers from capital reserve which reduced the capital reserve by an equivalent amount.
+They should perhaps have been included as an increase in the value of assets brought into account in line 13.
+But it is agreed that the way they fall to be treated does not depend on whether they were entered there or in line 15.
+The Special Commissioners said there is no difference in principle, as both lines are brought into account in the total shown at line 19: para 51.
+The amounts in aggregate for the relevant accounting periods were 33,410,000, 472,724,000 and 370,000,000 respectively.
+The approach to construction
+It is well understood that statutory provisions which bring profits and gains into charge to tax are to be construed as directed towards profits and gains in their natural and proper sense in a sense which no commercial man would misunderstand and that those words are equally applicable whatever the commercial concern may be: Gresham Life Assurance Society v Styles [1892] AC 309, 315, per Lord Halsbury LC.
+The objective is to ascertain and charge the true profits and gains of the business in question.
+The requirement that there should be a true and fair view involves the application of a legal standard.
+The courts are, in general, guided as to the content of the computation by expert opinions of accountants as to what the best current accounting practice requires: Revenue and Customs Commissioners v William Grant & Sons Distillers Ltd [2007] UKHL 15, 2007 SC (HL) 105, [2007] 1 WLR 1448, para 2, per Lord Hoffmann.
+The special rules that section 83 of the 1989 Act lays down for the calculation of the profits of life assurance companies in respect of their life insurance business for the purposes of corporation tax are, in this respect, no different from the rules that apply to companies generally.
+They provide a legal standard according to which these profits are to be ascertained.
+As has already been noted, that section has been amended more than once.
+But I do not think that it is helpful to look back into the legislative history.
+Lord Wilberforce said in Farrell v Alexander [1977] AC 59, 73 that self contained statutes, whether consolidating previous law or so doing with amendments, should be interpreted, if reasonably possible, without recourse to antecedents, and that the recourse should only be had when there is a real and substantial difficulty or ambiguity which classical methods of construction cannot solve.
+Further amendments to section 83 were introduced by section 170 and paragraph 2 of Schedule 33 to the Finance Act 2003.
+In Inland Revenue Commissioners v Joiner [1975] 1 WLR 1701, 1715 1716 Lord Diplock said that it was a legitimate purpose of legislation by Parliament to clarify the law by making it clear in which of two alternative meanings the ambiguous language of an earlier statute was to be understood, but that it would only be if the language of a provision in an existing statute was ambiguous that it would be legitimate to infer that a purpose of the subsequent statute was to remove doubts as to what the law had always been.
+So the proper approach is to concentrate on the wording of sections 83(2) and 83(3) as they were at the relevant accounting periods.
+With that background, and with the benefit of the much more comprehensive description of the facts that Lord Walker has provided and of the carefully reasoned opinions of all the judges in the Inner House, I now turn to the provisions of the 1989 Act which are under scrutiny in this case.
+Section 83(2)
+This subsection directs that there must be taken into account as receipts of the period for the purposes of Case 1 of Schedule D (a) the Companys investment income from the assets of its long term business fund and (b) any increase in value of those assets, in so far as these items have been brought into account by the Company.
+The question is whether its language permits the Company to claim that it in fact sustained an allowable loss during the relevant period when the values as brought into account for that period indicate the contrary.
+It is common ground that the reference to investment income in paragraph (a) of the subsection is a reference to actual income from assets actually comprised in the long term business fund.
+The Company submits that, by parity of reasoning, the reference to any increase in value in paragraph (b) must be taken to be a reference to something that can be recognised on a commercial basis as a real increase in real assets.
+So the word assets in both paragraphs meant assets of the long term business fund which had the capacity to earn income and to grow in value.
+The fact was that its assets had decreased, not increased, in each of the relevant accounting periods.
+The amounts included in line 15 of form 40 were there for regulatory purposes only.
+They were book entries which had no commercial validity.
+The fact was that the assets of the long term business fund had decreased, not increased, in each of the relevant accounting periods.
+The mere fact that an amount, such as interest on unpaid tax, was entered in form 40 did not mean that it was taxable.
+To arrive at a true and fair view it was necessary to go behind the entries on the forms and look at the facts.
+In the Court of Session the judges of the First Division were unanimous in accepting this argument and rejecting the argument for HMRC.
+The Lord President said that he was unable to accept that the contents of the revenue account that had been prepared for regulatory purposes had the definitional character for which HMRC contended.
+The fact that the investment income was inevitably an actual receipt suggested that the increase in value should be an actual sum, as opposed to an accounting element: para 54.
+Lord Reed made the same point in para 181, adding that the words whether realised or not were a strong indication that section 83(2) was concerned with real gains rather than a change in notional values.
+Lord Emslie said that, consistent with the long established distinction between assets and fund, the reference to an increase in value of assets should be taken as reflecting commercial reality in the form of actual increases in the value of assets: para 204.
+As Mr Andrew Young QC for HMRC pointed out, however, that section 83(2) is a special rule for the computation of the profits of an insurance company in respect of its life assurance business.
+The general rules for the computation of profits and gains for the purposes of Case 1 of Schedule D must be taken to have been modified to the extent provided for in this subsection.
+The Company was being taxed on the I minus E basis and it is this subsection, not the rules that are generally applicable, that must be construed.
+An insurance company is entitled to elect, under regulation 45(6) of the 1994 Regulations, to assign to any of its assets the value given to the asset in the books or other records of the company.
+Section 83(2) can be taken to have been drafted in the light of the fact that insurance companies almost always, if not invariably, choose to use book values (in the sense indicated by regulation 45(6)) to arrive at the necessary balance in form 40 to demonstrate solvency to the regulatory authority.
+Once this point is grasped, it seems to me that the meaning to be given to section 83(2)(b) falls fairly easily into place.
+The wording of the subsection follows that of the forms.
+While the investment income in paragraph (a) is real income, the increase in value referred to in paragraph (b) may or may not be a real increase.
+The assets which gave rise to this increase in value may or may not be the same assets as those referred to in paragraph (a).
+It depends on the content of the amounts shown in lines 13 and 15 of form 40.
+Amounts taken from its long term business fund were used by the Company to supplement its trading income in each of the three years in question.
+It chose to use its own book values, not values computed according to the current value of the assets of its long term business fund, to arrive at the final values that were brought into account on form 40.
+In the absence of further directions in the statute as to how the increase in value is to be computed in cases where that option has been chosen and there are none I would hold that the increase in value referred to in paragraph (b) must be taken to be the amount which has been brought into account on the form.
+The phrase as brought into account for a period of account in the opening words of the paragraph lies at the heart of this interpretation.
+It was suggested by the Company that this phrase determined the period for which items were to be treated as taxable receipts but not the items which were taxable.
+But this interpretation of the phrase does not, I think, give full weight to the word as.
+Linked to the words the following items which precede it, the phrase indicates that the computation must proceed on the basis of the way the items have actually been entered on the forms.
+If values shown in the books or other records of the company have been used, instead of market values, it will be the book values that will determine whether or not there has been any increase in value during the relevant period and, if so, how much that increase is.
+The phrase and not otherwise was said to support the Companys interpretation of paragraph (b) because it indicated that it was being assumed that the items that were being brought into account when any increase in value was being assessed were items that could be realised, not notional ones.
+But I think that their purpose is to make it clear that the basis of computation referred to in subsection (2) is the only basis that is relevant for the purposes referred to in subsection (1).
+The words whether realised or not are there to indicate a change from the computation indicated by the original wording of section 83.
+If the company chooses to bring unrealised increases in value into account, those increases in value must be taken into account as receipts for the period in the same way as increases that have been realised.
+For these reasons I am unable to agree with the judges of the Court of Session as to the meaning and effect of section 83(2)(b).
+But in para 205 of his opinion Lord Emslie made some further points which, as they were attractively put, need to be answered too.
+He said that a factor which favoured the Companys construction of section 83(2) was that it accorded well with the general principles (1) that the ascertainment of receipts or gains for tax purposes should prima facie reflect commercial reality; (2) that income or gains to be taxed should prima facie be the taxpayers and not those of a third party; and (3) that the ordinary recognition of shareholders capital to cover actual trading should not prima facie be a chargeable receipt.
+He described these principles in more detail in paras 197 and 198, and I agree with him that prima facie they can be taken to be a reliable guide as to how tax legislation ought to be construed.
+But his use of the phrase prima facie indicates, if I may say so quite correctly, that these are not absolute rules that are incapable of being disapplied by the statute.
+In this case we are dealing with special rules that have been designed to take account of the unique nature of the business carried on by life assurance companies.
+That in itself suggests that it is the language of the statute, rather than these general rules, that should be the determinative factor in this case.
+Taking Lord Emslies three points in turn, I would hold, firstly, that the language of section 83(2) shows conclusively that, if the insurance company chooses to use book values to arrive at the final values shown on form 40, it is on those values that the computation referred to in section 83(1) must be based.
+This can be said to reflect the commercial reality of the life assurance industry, as the Companys taxable receipts were based on its own figures as submitted to the regulatory authorities to justify the surplus of assets that it wished to recognise.
+Secondly, there is no question, in this case, of taxing the income or gains of a third party.
+The values brought into account on form 40 are the product of assets that were vested in the Company when it established its long term business fund.
+Their link with the Society was entirely broken when the transfer under the scheme took effect.
+As to Lord Emslies third point, it must be appreciated that the capital reserve was not, as he said in para 202, ordinary shareholders capital.
+The words themselves might be taken as suggesting otherwise, but I think that the name that was given to what the scheme described as a memorandum account is a distraction.
+The reality is that the reserve had no life of its own separate from the long term business fund.
+It was an accounting mechanism which the Company had established for its own internal accounting purposes as part of its long term business fund.
+It did not consist of particular assets but was a financial structure which was subject to all the statutory restrictions and requirements to which that fund was subject.
+In para 205 he said that, as the capital reserve was shareholders capital, its ordinary recognition to cover actual trading receipts should not prima facie be deemed a chargeable receipt.
+But, as the capital reserve had no life of its own, amounts that were described as transfers from the reserve fell to be treated in the same way as any other assets comprised within the long term business fund for regulatory purposes and, in consequence, for the purposes of section 83(2) too.
+For these reasons, and those given by Lord Walker, I would allow the HMRCs cross appeal.
+Section 83(3)
+As I would answer the question in the reference in favour of HMRC on the ground that the amounts in question fall to be taken into account as receipts under section 83(2) with the result that there was a corresponding increase in the assets of the long term business fund for each of the relevant accounting periods within the meaning of paragraph (b) of that subsection, the question whether section 83(3) applies to those amounts does not arise.
+This is because section 83(4) provides that subsection (3) of that section does not apply where, or to the extent that, the amount concerned is taken into account under subsection (2).
+But, as the judges of the Court of Session were divided in this issue and out of respect for the care which they took to examine it, I would like to make these few brief comments.
+The exercise to which section 83(3) is directed proceeds in two stages which are, as Lord Reed said in para 191(1), conceptually distinct from each other.
+First, there is the question whether an amount has been added to the companys long term business fund as a part of or in connection with a transfer of business to the company.
+Section 83(8) provides that the word add includes transfer.
+As for the facts of this case, amounts were added to the Companys long term business fund when the scheme took effect as part of the transfer of the Societys business to the Company.
+The whole of the amount that was to be treated as the capital reserve for accounting purposes was added or transferred to the Companys long term business fund as an integral part of the scheme.
+It seems to me to be plain, having regard to the terms of the scheme, that the addition to the Companys long term business fund was as part of or in connection with the transfer of the Societys business to the Company.
+The fact that it was only later that some amounts were brought into account by way of what were called transfers from the capital reserve does not matter.
+The second stage is the bringing of the amount into account for the period in question.
+It seems to me that this occurs as and when, and indeed whenever, the amount is brought into account as an increase in value to reduce or eliminate a loss that would otherwise have occurred during the relevant period.
+As Lord Reed said in para 191(2), there are understandable reasons why Parliament might consider that the use of amounts acquired on a transfer of business to offset liabilities resulting from normal patterns of trading which were not otherwise chargeable to tax should be disallowed.
+I agree with him that, when the amounts were subsequently brought into account on form 40, they would but for the fact that they were already caught by section 83(2) have fallen to be treated by section 83(3) as chargeable receipts for the purpose of ascertaining whether or to what extent the Company had incurred a loss in each of the relevant periods.
+Lord Emslies point, which he made in para 228 of his dissenting opinion, that the transfers were made in a non chargeable context is answered by the two stage nature of the exercise to which section 83(3) is directed.
+It is not the context in which the transfer was made at the outset that determines the way in which the amounts fall to be treated when, at some later stage, they are brought into account.
+Had it been necessary to do so to arrive at an answer to the question that was referred to the Special Commissioners, I would have affirmed the decision of the majority in the Inner House on this issue and dismissed the Companys appeal.
+Conclusion
+I would recall the interlocutor of the Inner House of the Court of Session, allow the cross appeal by the HMRC and answer the question referred to the Special Commissioners in the affirmative.
+LORD WALKER
+Introduction
+On 3 March 2000 Scottish Widows plc (the Company), a new company within the Lloyds TSB banking group, acquired the principal assets and liabilities of the life assurance business of the Scottish Widows Fund and Life Assurance Society (the Society).
+The Society had a long and distinguished history.
+It was established in Edinburgh in 1814 upon the principle of mutual assurance.
+It was incorporated by statute in 1861 as a company without a share capital and it remained a mutual life office that is an entity owned by its members, the policyholders, with no outside shareholders until the change in 2000, which has been referred to as demutualisation.
+The process of demutualisation was achieved by a scheme of transfer approved by the Court of Session under section 49 of and Schedule 2C to the Insurance Companies Act 1982 (ICA 1982).
+Some of the provisions of the scheme are of central importance to this appeal.
+The transfers which it effected were on a very large scale: the Company acquired, in round terms, assets with a market value of the order of 25bn and became subject to actuarial liabilities of the order of 19bn.
+The qualifying members of the Society received compensation of approximately 5.846bn, representing the difference (with various adjustments and enhancements) between the assets and the liabilities.
+This compensation was paid by the Companys holding company, Scottish Widows Financial Services Holdings Limited (Holdings), which owns the whole of the Companys issued share capital.
+The Societys assets included large holdings of equities as well as fixed interest securities, immovable property and other investments.
+As it happens the United Kingdom stock market reached what was (and remains) an all time high in the new year of 2000, and in the first years of the Companys business the market value of its holdings of equities was substantially reduced.
+This unexpected and unwelcome turn of events has led to a dispute between the Company and HM Revenue and Customs (the Revenue) as to the tax consequences.
+On 11 October 2006 the Company and the Revenue joined in making a referral to the Special Commissioners under Schedule 18, para 31 of the Finance Act 1998.
+The agreed question to be determined was as follows (with a small agreed explanatory addition): Whether in computing the Case 1 profit or loss of [the Company] for the accounting periods ending in 2000, 2001 and 2002, amounts described by the company as transfers from Capital Reserve and included as part of the entries at line 15 of Form 40 for each period fall to be taken into account [as receipts] in computing the profit or loss as the case may be.
+It is common ground that the answer to this question depends on two issues, one turning on the meaning and application of a general provision in subsection 83(2) (read with subsection (1)) of the Finance Act 1989 as amended (FA 1989), and the other turning on the meaning and application of a more particular provision in subsection 83(3) (read with subsection (4)) of the same section.
+The Company must win on both issues in order to succeed.
+Conversely it is sufficient for the Revenue to succeed if it wins on either issue.
+The first issue, once understood, is a short point of construction.
+But for the non specialist a lot of background, some of it quite technical, is required in order to understand the point, and to be able to weigh the linguistic arguments against more general considerations based on the legislative scheme and purpose.
+The second issue (which arises only if the Company is successful on the first issue) is a rather more intricate point of construction.
+The complex background, and the large amounts of tax at stake, help to explain why these two points of construction took four and a half days before the Special Commissioners, and no less than seven and a half days before the Court of Session.
+The Special Commissioners (Mr J Gordon Reid QC and Dr John F Avery Jones CBE) decided the first issue in favour of the Company and the second issue in favour of the Revenue, so that the Revenue was successful.
+The First Division of the Inner House of the Court of Session (the Lord President (Hamilton), Lord Reed and Lord Emslie) reached the same conclusions on both issues, unanimously on the first and with Lord Emslie dissenting on the second: [2010] CSIH 47; 2010 SLT 885; [2010] STC 2133.
+The Company now appeals on the second issue and the Revenue cross appeals on the first issue.
+The historical background.
+The first issue (the subject of the Revenues cross appeal) comes naturally before the second issue (the subject of the Companys appeal).
+But before getting to the detailed arguments on either issue it is necessary to say something about the historical background, and to cover regulatory as well as taxation aspects, since these two aspects have become closely interrelated.
+The background has already been covered with conspicuous thoroughness and clarity in the judgment of Lord Reed (paras 87 104), to which I gratefully acknowledge my indebtedness.
+This part of my judgment is largely based on the fuller description by Lord Reed, with the addition of a few points of my own.
+Life assurance, in its many different forms, has played an important part in British social and economic history.
+Actuarial science was already developing by the beginning of the eighteenth century (one of the founding fathers, Edmund Halley, published a paper on The Degrees of the Mortality of Mankind, commissioned by the Royal Society, in 1693).
+The Life Assurance Act 1774 addressed the problem of insurable interest and curbed the scandal of tontines, then fashionable in some wealthy circles.
+Interest in life policies was by no means restricted to the wealthy.
+The Society was only one (and among the most prominent in Scotland) of many mutual societies by which working men could insure against the risk of their families being left in penury in the event of the early death or disablement of the main breadwinner.
+In England the most prominent comparable body was probably the Friends Provident Society, founded in 1832 (it was a registered friendly society, regulated by a different statutory system).
+The growth of these mutual societies was remarkable: they had just over 700,000 members in 1803, over 3 million in 1887, and over 6 million in 1910 (there are fuller statistics in D. Green, Reinventing Civil Society, 1993).
+The mutual movement went into decline after Lloyd George introduced a system of compulsory national insurance in 1911.
+The public interest in life assurance as encouraging prudent self reliance was reflected in its tax treatment, though for the most part the incentives were directed to policyholders rather than life offices.
+In 1870, after several life offices had run into difficulties, Parliament introduced a new system of regulation.
+It was the foundation of the more elaborate system that we have today.
+The Life Assurance Companies Act 1870 (LACA 1870) required life offices (whether mutual or proprietary) to keep proper accounts and to prepare annual financial statements consisting of a revenue account and a balance sheet in a prescribed form.
+Regular actuarial investigations were made mandatory.
+Lord Reed explains in his judgment (paras 91 94) how section 4 of LACA 1870 introduced for the first time the statutory concept of a life assurance fund held as security for the rights of holders of life policies and annuities.
+This was the origin of what is now referred to as a life offices long term business fund (LTBF).
+As regards taxation, during the 19th century and the first two thirds of the 20th century there was no corporation tax and no capital gains tax.
+Companies were subject, in much the same way as individuals, to income tax assessed and charged under the various schedules and cases defined in the Income Tax Acts.
+If a taxpayer received income which could be regarded as falling within more than one schedule or case, the Revenue could not claim tax twice, but could choose which schedule to apply.
+This choice (sometimes referred to as the Crown option) was available to the Revenue in relation to proprietary life offices, which held large reserves of income producing investments in order to meet their actuarial liabilities and provide for unforeseen contingencies.
+They could be taxed either on the profits of a trade under Schedule D Case I, or on their investment income as such.
+It was usually more advantageous for the Revenue to make an assessment on the companys investment income, as Lord President Dunedin noted in Revell v Edinburgh Life Insurance Co (1906) 5 TC 221, 227.
+The Crown option was abolished by the Finance Act 2007 and replaced by mandatory provisions.
+With a mutual life office the Revenue never had a choice, since mutual trading does not produce profits taxable under Schedule D Case I.
+The first statutory provisions giving special tax treatment to life offices were in the Finance Act 1915.
+Life assurance was to be treated as a separate business.
+Annuity funds were to be taxed separately from life funds.
+Life offices taxed on their investment income were to be allowed a deduction for management expenses (including commission paid to brokers).
+This system of taxation is generally referred to as the I minus E (that is, income minus expenses) basis of assessment.
+It remained open to the Revenue to choose to assess a life office to tax under Schedule D Case I, but the basis of that assessment was altered (and the likelihood of its actually being adopted by the Revenue was reduced) by section 16 of the Finance Act 1923 (FA 1923), which gave effect to a recommendation in the report, published in 1920, of the Royal Commission on Income Tax (Cmd 615).
+Profits allocated to with profits policies were to be excluded from the life offices taxable profits.
+This was not unprincipled, since on allocation the profits became liabilities.
+This provision has been re enacted in successive consolidating statutes, and finally in section 433 of the Income and Corporation Taxes Act 1988 (ICTA 1988), the terms of which are set out in para 103 of Lord Reeds judgment.
+Section 433 of ICTA 1988 was repealed and replaced by FA 1989.
+The change made by FA 1923 was an important change.
+In practical terms it diminished the difference in tax treatment as between proprietary and mutual life offices.
+Its importance increased with changes in economic conditions in Britain during the second half of the 20th century (in brief, monetary inflation and the prospect of substantial capital gains from investment in equities and property).
+The Society was required by its constitution and regulations (to be found in their final form in the Scottish Widows Fund and Life Assurance Act 1980), as the Company is required under the scheme, to allocate to the holders of its with profits whole life and endowment policies nine tenths of the with profits part of the gains which it recognised, or brought into account (the expressions mean the same), in the revenue account of its LTBF.
+After the introduction of capital gains tax and corporation tax on chargeable gains, realised gains made by the Society were taxed at differential rates, the details of which are not material.
+But unrealised gains could be recognised (or brought into account) in order to enable larger bonuses to be allocated and paid to with profits policyholders without having been taxed in the Societys hands.
+This was perceived by the Revenue as a serious defect in the system, as appears from an official consultation document published in 1988, The Taxation of Life Assurance, (summarised in paras 123 126 of Lord Reeds judgment).
+This document gives a summary of how during the 1980s the life assurance industry was rapidly evolving into being part of a larger savings industry, in competition with unit trusts and other savings media, and itself increasingly making use of unit linked policies rather than traditional with profit policies (investment by small savers in authorised unit trusts and approved investment trusts was encouraged in a different way, by deferring tax on capital gains until individual unitholders or shareholders realised their gains).
+Section 83 of FA 1989, which is at the heart of this appeal, was part of the changes which Parliament made in consequence of this review.
+It makes an express link between the imposition of liability to tax (or the creation of an allowable loss) under Schedule D Case I and the regulatory regime under ICA 1982.
+It is therefore necessary, before coming to section 83, to give a short account of the regulatory regime in ICA 1982 and regulations made under it.
+ICA 1982 and regulations under it
+The regulatory system introduced by LACA 1870 had been re enacted and modified from time to time.
+ICA 1982 replaced it with a similar but much more detailed system, elaborated in a number of statutory instruments, of which the most relevant for present purposes are the Insurance Companies Regulations 1994 (SI 1994/1516) (the 1994 regulations) and the Insurance Companies (Accounts and Statements) Regulations 1996 (SI 1996/943) (the 1996 regulations).
+Section 17 of ICA 1982 required every insurance company to which Part II applied to prepare with respect to each financial year of the company, a revenue account for the year, a balance sheet as at the end of the year and a profit and loss account (or for a mutual an income and expenditure account) for the year.
+Each of these was to be in a form prescribed by regulations.
+Under the 1996 regulations (as amended down to the year 2000) different forms were prescribed for different types of insurance companies, and they were still required by the new regulatory system mentioned in para 55 below.
+The form of balance sheet prescribed (by regulation 6) for companies carrying on long term business were forms 13 (relating to assets) and 14 (relating to liabilities).
+These together made up the two sides of the balance sheet.
+The form prescribed (by regulation 8) for companies carrying on long term business was form 40; if the company had more than one LTBF a separate account was required for each LTBF, and a consolidated form for all of them.
+The Company has three LTBFs, a with profits fund, a non participating fund for business taken over from the Society, and a non participating fund for new business.
+Section 18 of ICA 1982 required every insurance company to which it applied, and which carried on long term business, to cause its actuary to make an annual investigation of its financial condition, and to cause an abstract of the actuarys report to be made.
+Assets were to be valued and liabilities determined in accordance with valuation regulations, and the abstract was to be in a form prescribed by regulations.
+Under regulation 25 of the 1996 regulations (as under the new regulatory system) the most relevant of the prescribed forms to be included in the abstract was form 58.
+Regulation 45 of the 1994 regulations (as amended down to the material time) dealt with valuation of assets.
+After some general provisions in paras (1) to (5) it dealt specifically with actuarial investigations under section 18 of ICA 1982: (6) Notwithstanding paragraph (1) above (but subject to the conditions set out in paragraph (7) below), an insurance company may, for the purposes of an investigation to which section 18 of the Act applies or an investigation made in pursuance of a requirement under section 42 of the Act, elect to assign to any of its assets the value given to the asset in question in the books or other records of the company. (7) The conditions referred to in paragraph (6) above are (a) that the election shall not enable the company to bring into account any asset for the valuation of which no provision is made in this Part of these Regulations; (b) that the value assigned to the aggregate of the assets shall not be higher than the aggregate of the value of those assets as determined in accordance with regulations 46 to 57 of these Regulations.
+Section 28 and 29 of ICA 1982 required separate accounts and funds to be maintained for long term business, and for the assets representing those funds to be applicable only for the purposes of the appropriate business, except so far as the value of the assets was shown, on a statutory actuarial investigation, to exceed the liabilities attributable to the fund.
+I shall have to come back to the prescribed forms.
+I add one comment.
+Lord Reed observed (para 112), and I agree, that the use of the word fund in ICA 1982 is not entirely consistent.
+Lord Reed had earlier quoted an observation of Lord Greene MR in Allchin v Coulthard [1942] 2 KB 228, 234: The word fund may mean actual cash resources of a particular kind (e.g. money in a drawer or a bank), or it may be a mere accountancy expression used to describe a particular category which a person uses in making up his accounts.
+This is an important distinction, although Lord Greenes reference to cash resources is a little surprising and may have been influenced by the context of the particular case before him (it concerned the taxation of a local authoritys general rate fund).
+In the context of life assurance a LTBF is a fund of investments of various types, and it falls within Lord Greenes first category.
+The investments (the assets of the fund) change from time to time, as and when the investment managers need to raise money or exercise their judgment to switch investments, and the values of the assets fluctuate constantly.
+But at any time it is possible to identify the assets for the time being constituting the fund, which is a continuing entity.
+By contrast the Capital Reserve established by the scheme approved by the Court of Session and put into effect in 2000 (and here I am putting down a marker for later parts of this judgment), if it was a fund at all, was a fund in Lord Greenes second sense.
+It was an accounting abstraction and it never consisted of identifiable assets.
+Before going on to the scheme it is convenient to record, out of chronological sequence, that ICA 1982 was repealed by a statutory instrument made under the Financial Services and Markets Act 2000 which came into full force on 1 December 2001 (having come into force at earlier dates for limited purposes including rule making powers).
+In consequence the new regime applied to the second and third of the Companys accounting periods relevant to this appeal that is, the calendar years 2001 and 2002; the Financial Services Authority (FSA) became the regulator, and the system of regulation was prescribed by rules made by the FSA rather than by statutory instrument.
+But the substance of the system, and the identifying numbers of the forms, were unchanged.
+In particular, rule 9.10(c) of the FSAs Interim Prudential Sourcebook for Insurers Instrument 2001 reproduced the effect of regulation 45(6) of the 1994 regulations.
+There were some minor changes of terminology in the forms, which were set out in Appendices 9.1 (forms 13 and 14), 9.3 (form 40) and 9.4 (form 58) of the 2001 instrument.
+The scheme
+The scheme for the transfer of the Societys business to the Lloyds TSB group was preceded by an agreement dated 23 June 1999 between the Society and Lloyds TSB Group plc.
+The agreement provided for the scheme to be approved by a special resolution of the Society in general meeting (which duly occurred) and for an application to be made to the Court of Session for sanction of the scheme under section 49 of and Schedule 2C to ICA 1982.
+The Court of Session (Lord Nimmo Smith) sanctioned the scheme by an order made on 28 February 2000, and the scheme took effect on 3 March 2000.
+The scheme also obtained regulatory approval and tax clearances.
+The scheme is lengthy and in parts very technical.
+It runs to 41 clauses and 12 schedules.
+In bare outline, the bulk of the assets and liabilities of the Society were transferred to the Company; pension policies and assets and liabilities associated with them were transferred to another Lloyds TSB group company and are not relevant to this appeal.
+Payment of the membership compensation to qualifying members of the Society (later quantified at 5,846m) was undertaken by Holdings, which is the owner of all the Companys issued share capital.
+The provisions of the scheme which call for most attention are in Part D (Fund Structure) and Part E (operation of the Funds).
+Clause 22 in Part E (Capital Reserve) is of particular importance.
+Under Part D (Fund Structure) the most basic division was between the LBTF (defined as the Long Term Fund) and the Shareholders Fund.
+The latter fund was to have allocated to it infrastructure assets and shares in seven subsidiaries and any joint venture companies (clause 15.1 and relevant definitions in Schedule 1).
+All other assets (other than pension assets as mentioned above) were to be allocated to the LTBF, which was to be divided into two separate subfunds, the With Profits Fund and the Non Participating Fund (respectively the WPF and the NPF), with an appropriate allocation of existing policies (clauses 13 and 14.1).
+The allocation of assets between the WPF and NPF was to be determined by the actuary in accordance with the detailed provisions of clause 15.2 to 15.6, 15.10 and 15.11.
+Liabilities were to be similarly matched, subject to some special exceptions (clause 16).
+In part E (Operation of the Funds) clause 18 deals with allocation of surplus arising in the WPF.
+One ninth of the amount of bonuses allocated to conventional (that is, not unit linked) with profits policies (in other words one tenth of the gross allocation) is to be allocated to the NPF or the Shareholders Fund, as the board directs.
+All other surplus is to be applied as bonus for the benefit of holders of with profits policies.
+This replicates the position under the Societys constitution and regulations (para 47 above).
+In life offices shorthand the WPF is a 90/10 fund.
+The NPF, by contrast, is a 0/100 fund.
+Following each actuarial valuation of the NPF the board may transfer to the WPF statutory surplus arising in the NPF (clause 21).
+Finally I come to the Capital Reserve, provided for in clause 22.
+Clause 22.1 is as follows: On and after [3 March 2000], [the Company] shall maintain a memorandum account within the [LTBF] designated as the Capital Reserve (the Capital Reserve).
+At [3 March 2000] the Capital Reserve shall represent the amount of the shareholders capital held within the [LTBF].
+Clause 22.2 provides for the Capital Reserve to be credited with an amount arrived at by a complicated formula.
+It is common ground that this amount was 4,455m.
+Clause 22.3 (headed Maintenance of Capital Reserve) provides that no more may be added to the Capital Reserve and that it may be reduced only by being brought into account in the revenue account of the WPF (up to a limit arrived at by a formula) or the revenue account of the NPF (without limit).
+There does not seem to have been a finding or formal agreement as to the amount of the WPF limit, but the unchallenged evidence of Mr Adrian Eastwood, the Companys actuarial director at the material time, was that the amount was 432m.
+Clause 22.4 to 22.6 provided for the Capital Reserve to be notionally allocated between the WPF and the NPF.
+The initial division was 1,895m to the WPF and 2,560m to the NPF.
+Tables B and C annexed to the agreed statement of facts and issues (SFI) show how the Companys opening capital of 4,769m in its LTBF can be reconciled with the opening Capital Reserve (4,455m) and the membership compensation (5,846m).
+Clause 22A of the scheme provided for what was described as a contingent loan, free of interest, from the NPF to the WPF, repayable as mentioned in that clause.
+Its purpose was to compensate the WPF for the fact that its right to future profits could not be included, for regulatory purposes, as an asset with an admissible value.
+This inter subfund loan (described in SFI, para 29) hardly featured in the parties written and oral submissions, but it is a further complication in understanding the regulatory forms, to which I now turn.
+The forms
+The balance sheet consists of forms 13 and 14.
+Form 13 sets out the values of the assets of the fund (that is, the LTBF or a subfund of it) at their admissible values (a technical term which in practice was not less than 99% of market value).
+The effective bottom line of form 13 is line 89, Grand total of admissible values.
+Form 14 sets out liabilities and margins.
+For present purposes the most important lines are: 11, mathematical reserves (that is, actuarial liabilities which have not yet been finally quantified); 13, balance of surplus (or valuation deficit); 14, LTBF carried forward; 49, total other (ie non actuarial) liabilities; 51, excess of the value of net admissible assets; and 59, total liabilities and margins.
+The entries at line 89 of form 13 and line 59 of form 14 must be the same.
+The balancing items on form 14 are the figures entered at line 13 (balance of surplus) and line 51 (excess of the value of net admissible assets, which is also called the investment reserve: SFI para 53(2)).
+The interrelation between the figures at lines 13 and 51 of form 14 is that the line 13 figure is generally a relatively small amount representing value that has been brought into account but not yet finally appropriated.
+The line 51 figure is the true balancing figure, and is the last figure to be entered on the form.
+It represents the (generally very much larger) value that has not yet been brought into account at all the amount by which the admissible value of the LTBF assets exceeds the book value that has been brought into account.
+It illustrates the proposition stated (perhaps in rather question begging terms) in para 9 of the Revenues written case, that life offices are treated differently from most businesses in that they can shelter profits from taxation to meet unforeseen future liabilities.
+This point is discussed further in paras 82 to 86 below headed Bringing assets into account at book value.
+Form 40, the revenue account, shows movements during the accounting period.
+The most important lines for present purposes are 11, earned premiums; 12, investment income; 13, increase (or decrease) in the value of non linked assets brought into account; 14, increase (or decrease) in the value of linked assets; 15, other income; 19, total income; 29, total expenditure; 39, increase (decrease) in fund in financial year; 49, fund brought forward; and 59, fund carried forward (39 + 49).
+The entry at line 49 must be the same as line 14 on form 14 for the previous accounting period, and the entry at line 59 must be the same as line 14 on form 14 for the current period.
+As to lines 13 and 14, Lord Reed explains in his judgment (para 116) that any increase or decrease in the value of linked investments (line 14) is required to be brought into account automatically, but unrealised increases in the value of non linked assets (line 13) need not be brought into account.
+Form 58 (valuation result and distribution of surplus) shows the actuarial surplus (line 29), its movement during the accounting period (lines 31, 34 and 35), and its distribution as between policyholders (line 46), shareholders (line 47) and balance (line 49, this being the same as line 13 on form 14).
+The term distribution as used in lines 41 48 does not imply that sums necessarily leave the Companys hands; it refers to an allocation as between policyholders and shareholders.
+Three separate forms 58 were completed for the WPF, the transferred business in the NPF and the new business in the NPF.
+How the forms were completed by the Company
+Volume V of the papers before the Court contains over 500 pages of the Companys regulatory returns for the three relevant accounting periods, including completed forms 13, 14, 50 and 58 for the LTBF and its sub funds (except that form 58 was completed, as already noted, for three sub funds and not for the LTBF as a whole).
+From these forms the following information as to the whole LTBF can be extracted (in bn, rounded to the nearest 1m, and with some rounding adjustments in the computations). 2000 2001 2002 Form 13 line 89: total assets at admissible value 20.962 Form 14 line 11: mathematical reserves 18.645 line 13: balance of surplus 0.181 line 14: LTBF carried forward 18.827 23.066 19.128 0.033 19.162 22.427 19.807 0.064 19.871 0.386 2.107 22.427 0.468 0.441 1.668 3.462 20.962 23.066 line 49: total non actuarial liabilities line 51: excess of value of net admissible assets line 59: total liabilities and margins Form 40 2.000 2.445 2.540 line 11: earned premiums 0.922 0.633 0.787 line 12: investment income line 13: increase (decrease) in value of non linked assets brought (2.254) 1.273 (1.168) into account line 14: increase (decrease) in value of (0.036) linked assets (0.031) (0.011) 0.408 0.502 16.875 line 15: other income 1.040 line 19: total income 21.216 2.631 1.921 2.084 2.054 line 29: total expenditure (1.045) line 39: increase (decrease) in LTBF 19.162 0.709 19.871 line 49: fund brought forward .000 19.162 19.162 19.871 18.827 line 59: fund carried forward Form 58 (WPF) line 59: distributed surplus line 61: percentage distributed to
+policyholders
+It would be imprudent to attempt any sophisticated commentary on these figures.
+The entry on form 40, line 15 for 2000 is obviously exceptional, representing the effect of a change of ownership of a long established business; no one has suggested that the whole sum is taxable.
+But we know that it included a sum of 33.410m as a transfer from Capital Reserve (see para 70 below).
+Taken overall, the figures illustrate the effect of bringing into account value which, for prudential reasons, has not previously been recognised.
+During the three accounting periods the admissible (for practical purposes, market) value of the assets of the LTBF fell by about 4bn (the figures can be collected from SFI, Table A and the Companys completed forms 13 for the three accounting periods).
+The mathematical reserves decreased by a little under 0.5bn and the recognised value of the LTBF, tracking as it did the mathematical reserve and the unappropriated surplus, went down by about 0.3bn.
+But the investment reserve, that is the excess of admissible value over the recognised value of the LTBF (line 51 on form 14) was reduced by almost 1.8bn.
+The successive entries 0.633 0.915 94.72 96.64 0.576 97.05 on line 13 of form 40 are noteworthy.
+In the accounting period ending on 31 December 2000 the value of non linked assets brought into account increased by over 1.2bn although their admissible value decreased during that period.
+This disparity was reversed in the two following accounting periods, during which (taken together) admissible value fell further by about 1.6bn but the form 40, line 13 decrease was a good deal larger, about 3.4bn.
+During the whole period the Company declared bonuses of significant amounts, and allocated more than the mandatory 90% to with profits policyholders.
+Part of the form 40, line 15 amounts included sums described in the notes submitted with the statutory forms (volume V, pp1756, 2035 2036 and 2319) as transfers from Capital Reserve.
+The amounts were as follows (SFI, paras 56 60): 2000 2001 2002 m to WPF 33.410 30.724 17.000 81.134 total 33.410 472.724 370.000 876.134 to NPF 442.000 353.000 795.000 Whether they should nevertheless have been brought into the computation of the Companys profit or loss under Schedule D Case I under section 83(1) and (2) of FA 1989 is the first issue.
+Line 15 of form 40 is, it will be recalled, specifically mentioned in the referred question (set out at para 36 above).
+The statutory provisions
+The provisions which this Court has to construe are in a single section, section 83 of FA 1989.
+A rapid survey of the landscape in which that section is found shows that in the consolidating statute, ICTA 1988, Part XII dealt with special classes of companies and businesses, and Chapter 1 of Part XII dealt with insurance companies, underwriters and capital redemption businesses.
+I have already mentioned section 433, which was repealed by FA 1989 and replaced by similar (but more complex) provisions in section 82 of FA 1989.
+Section 444A, inserted into ICTA 1988 by the Finance Act 1990, applies to a transfer of long term business in accordance with a scheme sanctioned under section 49 of ICA 1982, but neither side placed any reliance on this section.
+At the time when the consolidating statute was enacted the government was engaged in a far reaching review of the taxation of life offices, as already noted (para 48 above).
+The outcome was sections 82 to 90 of FA 1989 (together with Schedule 8 to that Act, amending Part XII of ICTA 1988).
+These sections, and Schedule 8, were frequently amended between 1989 and 2000, especially by the Finance Acts of 1995 and 1996.
+The details are set out in Lord Reeds judgment (paras 134 to 163).
+But I agree with Lord Hope (in para 15 of his judgment) that it is unnecessary, and maybe unhelpful, to go into the legislative history.
+What matters is the statutory provisions as they were in 2000, 2001 and 2002.
+During that period section 83(1) to (4) was in the following terms: (1) The following provisions of this section have effect where the profits of an insurance company in respect of its life assurance business are, for the purposes of the Taxes Act 1988, computed in accordance with the provisions of that Act applicable to Case 1 of Schedule D. (2) So far as referable to that business, the following items, as brought into account for a period of account (and not otherwise), shall be taken into account as receipts of the period (a) the companys investment income from the assets of its long term business fund, and (b) any increase in value (whether realised or not) of those assets.
+If for any period of account there is a reduction in the value referred to in paragraph (b) above (as brought into account for the period), that reduction shall be taken into account as an expense of that period. (3) In ascertaining whether or to what extent a company has incurred a loss in respect of that business in a case where an amount is added to the companys long term business fund as part of or in connection with (a) a transfer of business to the company, or (b) a demutualisation of the company not involving a transfer of business, that amount shall (subject to subsection (4) below) be taken into account for the period for which it is brought into account, as an increase in value of the assets of that fund within subsection (2)(b) above. (4) Subsection (3) above does not apply where, or to the extent that, the amount concerned (a) would fall to be taken into account as a receipt apart from this section, (b) is taken into account under subsection (2) above otherwise than by virtue of subsection (3) above, or (c) is specifically exempted from tax.
+Section 83A(1) to (3) of FA 1989 was in the following terms: (1) In sections 83 to 83AB brought into account means brought into account in an account which is recognised for the purposes of those sections. (2) Subject to the following provisions of this section and to any regulations made by the Treasury, the accounts recognised for the purposes of those sections are (a) a revenue account prepared for the purposes of the Insurance Companies Act 1982 in respect of the whole of the companys long term business; (b) that Act in respect of a part of that business. any separate revenue account required to be prepared under Paragraph (b) above does not include accounts required in respect of internal linked funds. (3) Where there are prepared any such separate accounts as are mentioned in subsection (2)(b) above, reference shall be made to those accounts rather than to the account for the whole of the business.
+It is common ground that the relevant revenue accounts are forms 40 for the whole LTBF and its constituent parts, the WPF and the NPF.
+The first point of construction (which I have already described as a short point, but one which takes some getting to) is the meaning of value (whether realised or not) of those assets in section 83(2)(b).
+The Company contends that it means market value, and that any reduction in their value (the form of words at the end of the subsection) is to be treated as an expense capable of giving rise to an allowable loss.
+The Revenue contends that section 83(2) is referring to a difference in value (whether it be an increase or a reduction) as brought into account for the relevant period of account, and that section 83(A)(2) leaves no room for doubt as to what that means.
+It directs attention to the appropriate regulatory account, in this case form 40.
+The Lord President (para 54) described this approach as definitional.
+Taxing a loss?
+The Companys written case before this Court, and Mr Gardiner QCs robust oral submissions, characterised the Revenues position as unnatural, uncommercial and contrary to fundamental principles of tax law.
+The Court was reminded of some famous judicial observations made more than a century ago, including Lord Halsbury LC in Gresham Life Assurance Society v Styles [1892] AC 309, 315: The word profits I think is to be understood in its natural and proper sense in a sense which no commercial man would misunderstand and Lord Macnaghten in London County Council v Attorney General [1901] AC 26,35: Income tax, if I may be pardoned for saying so, is a tax on income.
+It is not meant to be a tax on anything else.
+In this case, Mr Gardiner submitted, the Revenue was attempting to tax what was in reality a loss of capital.
+These submissions call for careful consideration.
+The massive volume of documents and figures put before the Special Commissioners and the Court of Session, and now before this Court, creates a risk of getting lost in a labyrinth of abstractions.
+Actuaries, accountants and lawyers are trying to converse in the same language, but it is not easy going.
+It is a case in which there is a real danger, in the hackneyed phrase, of not seeing the wood for the trees.
+It may help to avoid confusion to start with three simple points.
+The first point is that the Revenue is not seeking to exact tax from the Company under Schedule D Case I either on profits or on losses incurred by the Company; it is taxing the Company on the I minus E basis.
+Simultaneously the Company is seeking to establish large Schedule D Case I losses in order to have them available for surrender to obtain group relief.
+The second point is that it is, and always has been, standard practice for life offices to bring the assets of their LTBFs into account, not at market values that fluctuate from year to year, but at a book value (though in practice that expression is applied to LTBFs in a way that an outsider may find surprising).
+The third point is that the Capital Reserve is not, and never has been, a separate fund distinct from the Companys LTBF.
+It has always been part of the LTBF.
+Each of these three points calls for some further explanation.
+The Crown option as it applies to this case
+The Revenue is not seeking to charge tax under Schedule D Case I on losses incurred by the Company.
+It is common ground (SFI, para 61) that at all material times since 3 March 2000 the Company has been taxed on the I minus E basis (the detailed computations for 2000 and 2002 can be seen in volume VII at pages 3211 and 3290; the relevant page for 2001 seems to have been inadvertently omitted).
+Nevertheless (SFI paras 62 and 63) the Company seeks to claim an allowable loss under Schedule D Case I which would be available for surrender to other Lloyds TSB group companies by way of group relief.
+The Revenue accepts (SFI, paras 62 and 63) that if the Company succeeds in this appeal the losses available for surrender would be approximately 28.7m for 2000, 612.6m for 2001 and 431.3m for 2002 (the relevant computations are at volume VII pages 3216, 3255 and 3295).
+The fact that a proprietary life office can simultaneously pay tax on the I minus E basis and have an allowable loss under Schedule D Case I shows that whatever the position a century ago, when there were no special statutory provisions, the taxation of long term life assurance business is now a very specialised area.
+Bringing assets into account at book value
+Regulation 45(6) of the 1994 Regulations (set out in para 20 above, and later reproduced in Rule 9.10(c) of the FSAs 2001 instrument) allowed a life office, for the purposes of an actuarial investigation, to take the value of any of its assets as its value in the books or other records of the company.
+This had been expressly permitted by the regulatory system since 1980, when Regulation 3 of the Insurance Companies (Valuation of Assets) Regulations 1976 (SI 1976/87), was amended by the Insurance Companies (Valuation of Assets) (Amendment) Regulations 1980 (SI 1980/5).
+But the two expert witnesses agreed that it was a very long standing and well established practice, and the Special Commissioners made a finding to that effect (para 16 of their decision).
+It would be potentially misleading to say that a life office is permitted to bring the assets of its LTBF into account at book value, since that is normally understood to mean historic cost.
+In a LTBF some assets are normally brought into account at the full admissible value, and others at nil (Special Commissioners decision, para 48; also para 122 of Lord Reeds judgment).
+It is unnecessary to go into the reasons for this practice, as to which there was no dispute.
+The reasons for maintaining an investment reserve of unrecognised value are fundamental to the way in which long term life business, and especially with profits business, has been conducted in the United Kingdom.
+It is the mechanism by which the life office, relying on the professional skills of its chief actuary and his staff, can achieve a balance between competing considerations and interests.
+First and foremost is the overriding need for a sufficient margin of solvency.
+Subject to that the life office will wish to produce consistently good results for its with profit policyholders, both in the policyholders interests and to preserve and enhance the companys reputation.
+It must also achieve fairness between different classes of policyholders in accordance with their rights and expectations (the difficulties of which are illustrated by Equitable Life Assurance Society v Hyman [2002] 1 AC 408).
+Finally there are tax considerations.
+No company likes to pay more tax than it has to, or to pay it sooner than it has to.
+Before 1989 the tax system allowed life offices to defer taxation, especially on unrealised capital gains.
+It is common ground that section 83 of FA 1989 was intended to change that; the controversy is as to the extent of the change.
+These points were well made by Mr Brian Drummond, an accountant, in an article entitled Making Sense of the FSA Return in Life Company Tax Computations (Tax and Accountancy Review, June 2006, p6).
+Some changes had taken place by then (both on the regulatory front and the taxation front) but the article is nevertheless instructive.
+After mentioning recent changes the author gives a brief overview of the forms: In broad terms, however, the overall structure remains unchanged.
+Form 13 remains a reasonably straightforward analysis of the total admissible value of the assets of the company by category with narratives that are commendably clear; Form 40 demonstrates how much of the Form 13 value is brought into account for the purposes of calculating surplus; Form 58 deals with the calculation, composition and distribution of the surplus; and, Form 14 then links that exercise back to Form 13 by showing how much of that original Form 13 value is covering liabilities and bonuses and how much of it is being held in reserve.
+He describes form 14 as an area of linguistic opacity, and comments: This confusion is carried across into form 14 of the FSA return where it increases further.
+The first line in form 14 is described as mathematical reserves, after distribution of surplus and in this one narrative only two of the six words (after and of) take their conventional or even accounting meaning.
+The most relevant passage is on the general philosophy of with profits business (at pp 9 10): Form 40 is described as revenue account but in conventional terms it is a very partial one.
+By reference to normal accounting convention it is surprising to have a revenue account that makes no explicit reference to a movement in liabilities to third parties.
+The layout of Form 40 and its interaction with Form 58 reflects much more of the history of with profit funds than it reflects normal accounting principles.
+In with profits funds the starting point in determining the extent to which surplus is recognised is establishing what bonus should be recommended.
+This will be driven by a combination of the results of the company (in terms of investment return and underwriting profit) together with policyholder reasonable expectations and the need to treat customers fairly.
+One of the principles of UK with profits business is smooth bonuses from year to year.
+Having established what bonus it is appropriate to declare for the year it is then possible, depending on the structure of the fund, to calculate the minimum extent to which surplus must be recognised both to meet the bonus requirement and any corresponding entitlement of the shareholders to participate in surplus as a fraction of the amount allocated to policyholders (very often one ninth the 90:10 structure).
+Historically with profit funds hesitated to recognise any more surplus than was required to meet the bonus, and associated shareholder entitlement, and hence the fund would generally be approximately equal to the liabilities (after current year bonus) plus any residual surplus not allocated.
+The nature of the Capital Reserve
+The third point mentioned in para 78 above is that the Capital Reserve is not, and never has been, an appropriated fund separate from the Companys LTBF.
+It is, as para 22.1 of the scheme makes clear, part of the LTBF.
+It is an account falling within Lord Greene MRs second category in Allchin v Coulthard [1942] 2 KB 228, 234 235 merely an accounting category.
+Abstract though it is, the Capital Reserve is on the Companys case of central importance to this appeal.
+It is not easy to discern its purpose.
+The Companys own independent actuarial expert, Mr Chamberlain, stated in his report dated 18 September 2007, para 5.1: The Scheme by which [the Society] demutualised established something it refers to as a Capital Reserve.
+This Reserve is a financial structure whose form and operation is defined by the Scheme, and does not meet any particular regulatory or other requirement, other than that emanating directly from the Scheme.
+It is a memorandum account and does not consist of particular assets.
+Mr Allen, the Revenues independent expert, stated in his report dated 5 October 2007, para 6.1: Within the notes to their returns I understand that [the Company] created a memorandum account (the Capital Reserve) with an initial balance of approximately 4.5bn.
+Notwithstanding that this account was referred to in the Scheme which obtained approval from the Court of Session, in my opinion this memorandum account had no meaning or relevance, other than as an item of information, as regards either the Companys statutory report and accounts or its regulatory returns.
+The memorandum account did not represent any particular assets, nor did it reflect any actual profit or loss incurred by the Company, it was simply a note of a particular transaction.
+The experts did not give a further explanation of the expression memorandum account, nor did counsel offer any.
+The Special Commissioners made a finding that reflects the natural meaning of memorandum (para 45): The purpose of the Capital Reserve was to keep a record of this initial value created by [Holdings] and to distinguish it from subsequent profits.
+The notion that it was an item of information that ought to be remembered comes out most clearly in the witness statement of Mr Michael Ross.
+He was an actuary who was employed by the Society for most of his career, becoming chief actuary of the Society in 1986 and the first chief executive of the Company in 2000.
+In his witness statement (paras 18 to 27, not challenged in cross examination) he described how demutualisation involved a strategic choice between ring fencing the estate and monetising the estate (the estate is a term used to describe a mutuals excess of assets over liabilities, or investment reserve).
+After careful thought the Lloyds TSB group and the Society opted for monetising the estate.
+This course was likely to be more attractive to the Societys members but required the Lloyds TSB group to find a very large sum to pay the membership compensation.
+But the payment of that compensation gave the Lloyds TSB group the advantage that the Company had a comfortable investment reserve at the inception of its business (whereas with ring fencing the group might have had to inject further capital).
+The group wanted to earmark what Mr Ross (para 27) regarded as shareholder owned capital, held within the [LTBF] in order to be able, in the long term, to benefit from it.
+That provides a clue, I think, to the purpose of the restriction on reduction of the Capital Reserve in para 22.3 of the Scheme (summarised in para 60 above).
+Only a limited amount (432m out of 4,455m) of the Capital Reserve could be brought into account in the revenue account of the WPF, because it was a 90/10 fund and nine tenths of the distributed surplus were to go for the benefit of holders of with profit policies; only one tenth (at most) could find its way to the shareholder, Holdings.
+There was no restriction (beyond the total amount of the Capital Reserve) on bringing it into account in the NPF, which was a 0/100 fund.
+The decision of the Special Commissioners and the judgments in the Court of
+Session
+The Special Commissioners decided the first issue in favour of the Company, and the Court of Session unanimously upheld that decision (Lord Emslies dissent was on the second, narrower issue as to section 83(3)).
+All three members of the Court delivered full judgments, so this Court has four separately reasoned routes to the same conclusion on the first issue.
+The reasoning can be imprecisely classified under three heads: the correct approach to the construction of taxing statues, arguments based on the legislative scheme and purpose, and detailed linguistic arguments.
+The Lord President dealt most fully with statutory construction (paras 45 to 49).
+He cited the well known speech of Lord Steyn in Inland Revenue Commissioners v McGuckian [1997] 1 WLR 991, 9991000, in which Lord Steyn referred to Lord Wilberforces seminal speech in W T Ramsay Ltd v Inland Revenue Commissioners [1982] AC 300, 323: Lord Wilberforce restated the principle of statutory construction that a subject is only to be taxed upon clear words .
+To the question What are clear words? he gave the answer that the court is not confined to a literal interpretation.
+He added There may, indeed should, be considered the context and scheme of the relevant Act as a whole, and its purpose may, indeed should, be regarded.
+This sentence was critical.
+It marked the rejection by the House of pure literalism in the interpretation of tax statutes.
+The Lord President ultimately decided the issue by applying the clear words principle in the light of his view of the statutory purpose (paras 55 and 56).
+Lord Emslie relied on the same principle, and some other principles which he set out at para 197: Since this appeal concerns the construction of tax legislation, certain fundamental rules, principles and presumptions may be thought to apply.
+First, as Lord Wilberforce explained in Vestey v Inland Revenue Commissioners [1980] AC 1148, 1172: Taxes are imposed upon subjects by Parliament.
+A citizen cannot be taxed unless he is designated in clear terms by a taxing Act as a taxpayer and the amount of his liability is clearly defined.
+Second, in the absence of specific charging provisions, capital and capital receipts do not fall to be taxed as revenue and vice versa.
+Third, corporation tax being an annual tax on the profits of a company, it is prima facie reasonable and appropriate to construe statutory charging provisions as directed towards real receipts and gains . in a sense which no commercial man would misunderstand: Gresham Life Assurance Society v Styles [1892] AC 309, 315, per Lord Halsbury LC.
+And fourth, as reflected in countless provisions of the taxing statutes, a subject is in general assessable to tax on his own profits and gains, and not on those of any third party.
+The second, third and fourth of these principles (and especially the second) may be what the Special Commissioners had in mind (in para 79 of their decision) in a more general reference to tax principles as predisposing them in the Companys favour, and in characterising the transfer from the Capital Reserve as a capital receipt (para 80).
+Arguments based on the legislative scheme and purpose move from the very general to the rather more particular.
+What was the underlying purpose of section 83? In particular was it intended, as the Lord President stated in para 55 of his judgment, to reverse the effect of section 433 of ICTA 1988? Is there a key conceptual distinction (Lord Emslie, para 201) between the Companys LTBF and the assets representing that fund? Was a transfer from the Capital Reserve a capital receipt comparable to an injection of new capital (Special Commissioners, para 80)? How cogent is the argument (Lord Reed, para 183; Lord Emslie, para 197, fourth point, and para 205, second point) that one taxpayer should not be taxed on another taxpayers profits or gains? What practical results do the statutory provisions produce if construed (Lord Emslie, para 200) as a one stage or alternatively a two stage process? I shall consider these points in turn.
+Legislative scheme and purpose
+It is permissible, without getting into the territory of Pepper v Hart [1993] AC 593, to look at the official consultation paper published in 1988, The Taxation of Life Assurance, to see the general nature of the problem perceived by the Revenue.
+The most relevant paragraphs are paras 6.2 to 6.7, 6.12 to 6.21, 6.33 and 7.1 to 7.8 A life office might have a large capital gain on a long term income producing investment (such as a fully let office block or a strategic holding of shares in an oil company) as part of the with profits part of its LTBF.
+Before 1989 this gain could be recognised (or brought into account) in its revenue account without being realised so as to give rise to a chargeable gain.
+Value representing at least nine tenths of the gain could then be distributed (in the form 58 sense, that is allocated) to the holders of with profits policies so as to obtain the protection of section 433 of ICTA 1988, as well as escaping income tax or capital gains tax in the policyholders hands on the maturity of their policies (assuming them to be qualifying policies).
+Section 83 of FA 1989 made the recognition of an unrealised capital gain a receipt to be brought into the Schedule D Case I computation, while section 82 of FA 1989 re enacted the substance of section 433 in a more satisfactory form.
+All this is very clearly set out, in a good deal more detail, in paras 123 to 133 of Lord Reeds judgment (which refer to section 83 in the form in which it was originally enacted).
+I respectfully think that in para 55 of his judgment the Lord President was to some extent running together the functions of sections 82 and 83, and misunderstanding the purpose of the two sections in tandem.
+Lord Emslie referred to section 433 (para 200) but not to section 82.
+In my opinion Lord Reeds analysis is to be preferred.
+Section 83 is concerned with the immediate implications, in making the necessary Case I computations, of bringing into account all or part of the difference between book value and market value, and section 82 is concerned with the next stage of the computations, that is adjustments in respect of the distribution of surplus to holders of with profits policies (covered by form 58, lines 41 to 59).
+The next point is the term fund.
+It is, as both Lord Reed (para 112) and Lord Emslie (para 199) observed, used inconsistently both in ICA 1982 and in the regulatory forms.
+But the two principal and relevant meanings, in this context, are clear (and here I am repeating ground I have already covered).
+The LTBF is an actual, appropriated fund of identifiable investments, the constituent assets of which (with their admissible values) appear in form 13.
+The Capital Reserve is a notional part of that fund to an initial amount of 4,455m; the independent actuarial experts agreed that it serves no regulatory purpose.
+The fund for the purposes of lines 39, 49 and 59 of form 40, and for all the purposes of form 58, is the same fund, but valued in a special way (that is at book values in the sense that actuaries use that term) in order to produce the life offices objectives solvency and prudent preservation of the investment reserve, but at the same time smooth progress in the allocation of bonuses to with profits policies.
+I am not sure that I understand para 201 of Lord Emslies judgment.
+In that paragraph he is (as I understand it) setting out part of the submissions made on behalf of the Company.
+But later (para 204) Lord Emslie himself accepted that there is a significant distinction between the assets and the fund itself.
+Of course there is a difference, the difference between the parts and the whole.
+But the value of the whole is in this case the sum of the values of the parts, and the significant distinction, affecting both, is the basis of valuation.
+It is common ground that if in 2001 or 2002 the Lloyds TSB Group had decided to inject fresh capital into the Companys LTBF (as might have been done by the Company issuing new shares to Holdings, paid for in cash that was appropriated to the LTBF) it would not have been treated as a receipt under section 83(2).
+The new money would have appeared on line 26 of form 40 (transfer from non technical account).
+The admissible value of the LTBF would have been increased, and so (if it was needed for solvency purposes) would its value as brought into account (lines 39 and 59 of form 40).
+A transfer from the Capital Reserve, by contrast, costs the group nothing (although it may be an indication that the state of the business is disappointing).
+The transfer does not increase the market value of the LTBF.
+Nor has it any regulatory significance, as the experts agreed.
+What happens is that part of the value held in the investment reserve is brought into account, a familiar event generally recorded (as Mr Allen stated, though Mr Chamberlain disagreed) on line 13 of form 40.
+I respectfully consider that the Special Commissioners, and to some extent the Court of Session also, attached too much weight to the label Capital Reserve and to the notion that capital gains ought not to be taxed under Schedule D, Case I.
+It could not be clearer that under section 83(2)(b) any increase in value (whether realised or not) of investments constituting a LTBF, as brought into account, is to come into the Case I computation.
+The argument that (in the absence of very clear words) one taxpayer ought not to be taxed on another taxpayers profits or gains is, on the face of it, a strong one.
+It is not satisfactorily answered simply by pointing out (though this should not be forgotten) that this appeal is not about taxing profits.
+It is about allowing losses capable of being surrendered for the benefit of other group companies.
+But the Company acquired a long established mutual business and a LTBF with a healthy investment reserve.
+That reserve may have been built up by the Society largely by means of unrealised gains.
+But it was the Company and the Lloyds TSB Group that decided, for entirely understandable reasons, to bring part of the investment reserve into account, rather than making an injection of new capital.
+The language of section 83(3)(b) (as amended in 1996) shows that Parliament had demutualisation well in mind as a situation for which the legislation should make provision.
+The last general point to be considered, before getting to linguistic arguments, is the implication of Lord Emslies illuminating distinction (para 200, summarising the Companys argument, and para 204, accepting it) between a two stage process (asking whether there are any real gains, and then how far they have been brought into account) and a one stage process (asking simply what increase in value, if any, has been brought into account).
+Again, it is necessary to be reminded that this appeal is about losses, not gains; and the three accounting periods have to be considered separately, and not as a whole.
+In any accounting period the operation of the statutory provisions, if analysed as a two stage process, allows six different combinations, although some of them may be fairly improbable in practice, as follows (AV denoting admissible value, and RV value recognised and brought into account): (1) AV up, RV up by less (2) AV up, RV up by more (3) AV up, RV down (4) AV down, RV down by less (5) AV down, RV down by more (6) AV down, RV up.
+It is easy to see how the competing interpretations work in situations (1), (2), (4) and (5).
+On the Companys two stage approach the lower figure (whether an increase or a reduction) will be brought into the computations; on the Revenues one stage approach the difference in RV will always be taken.
+But it is not so easy to see how either sides interpretation would apply to situations (3) and (6); and the Companys regulatory return for 2000 disclosed situation (6).
+It might be thought that though neither sides interpretation fits easily, the Companys two stage approach is distinctly more difficult to reconcile with the situation in which there is a reduction in admissible value, but an increase in value brought into account, in an accounting period, and the Company is seeking to establish an allowable loss during that period.
+But so far as I can see that submission was not made either to the Special Commissioners or to the Court of Session, nor do I recollect it being put forward in this Court.
+The terms of the agreed question do not positively require the point to be resolved.
+Indeed SFI, para 63 suggests that the point may already have been agreed between the parties.
+So the best course is, I think, to exclude that point, which was not argued, from any consideration of the statutory scheme and purpose.
+Nevertheless, unlike the Special Commissioners and (to some extent) the Court of Session, I do not approach the narrower linguistic points with any predisposition in favour of the Companys case.
+I approach them disposed towards the Revenues case as being more in accordance with the statutory scheme and purpose.
+Linguistic points on the first issue
+I can take these more shortly, and it is convenient to do so by reference to the numbered sub paragraphs at the end of para 181 of Lord Reeds judgment.
+The first point is that an increase in value . of . assets is said to refer most naturally to capital gains.
+In some contexts it might do so.
+In the context of a system of computation which is closely and explicitly linked to the regulatory returns in respect of LTBFs I see little force in this point.
+What is important is how value is to be measured, and to my mind sections 83(2) and 83A leave no doubt about that.
+The second point is on the words (whether realised or not) in section 83(2)(b).
+The section was making an important change in the law in that unrealised increases in value, so far as brought into account, were to come into the tax computation.
+To my mind it would have been surprising if the draftsman had not inserted this parenthesis so as to leave no doubt as to the character of the change in the law.
+The third point is on another parenthesis in section 83(2), (and not otherwise), though these words have come out in the text of Lord Reeds judgment before us as or otherwise.
+Again, I have to say that I think the draftsman is being rather unfairly criticised for his efforts to leave no doubt about the intended meaning.
+The preceding word as means in the manner that and the parenthesis means and in no other manner.
+To my mind it is a bit hard to dismiss this as otiose.
+Lord Reeds fourth point is that the expression brought into account is not apt to describe the overall effect of those entries.
+I confess that I simply do not understand this point.
+The critical entry is line 13 on form 40 (increase (decrease) in the value of non linked assets brought into account).
+That is the only line on form 40 in which the words brought into account are found.
+It was conceded that the line 15 entry could have been on line 13.
+The bottom lines (39, 49 and 59) show the overall position, and do not use the words brought into account.
+Lord Reeds remaining points on the first issue (in para 181(5) and (6) and para 183) are more general and I will not revisit them.
+Conclusion
+In my judgment the Revenues submissions on the first issue are correct, both as to the statutory scheme and purpose and as to the linguistic points just mentioned.
+I have gone into the matter at some length because I am conscious that I am differing both from the Special Commissioners and from the unanimous view of the Court of Session.
+But in the end I consider that it is simply a question of giving section 83(1) and (2) of FA 1989, as amended, their natural meaning.
+On that basis the second issue does not arise and I prefer to say nothing about it.
+I would allow the Revenues cross appeal and treat the Companys appeal as moot.
+LADY HALE
+As so often happens, what appears at first sight to be a very complicated question turns out on closer analysis to be quite a simple one.
+When calculating the profits of an insurance company in respect of its life assurance business under Case 1 of Schedule D to the Taxes Act, does an increase in value or conversely a reduction in the value of the assets of its long term business fund refer to an increase or decrease in their actual value? Or does it refer to an increase or decrease in their value as brought into account for a period of account in the companys revenue account prepared for the purpose of the Insurance Companies Act 1982?
+We know that the words as brought into account for a period of account (and not otherwise) in section 83(2) of the Finance Act 1989 (set out by Lord Walker at para 41 above) describe the words the following items; we know that the following items are (a) the companys investment income from the assets of its long term business fund, and (b) any increase in value (whether realised or not) of those assets; we know from section 83A (set out by Lord Walker at para 74 above) that brought into account means brought into account in the revenue account (or accounts) prepared for the purposes of the Insurance Companies Act 1982 in respect of the companys long term business (or part of it); so the linguistic question boils down to what is meant by as in section 83(2).
+The Company would have it that as means when.
+The link to the regulatory returns is a purely temporal one.
+Value means real value not whatever the company chose to put in the forms.
+The Revenue would have it that as means as.
+What is taken into account in computing the companys profits for income tax purposes is what the company brings into account in completing its revenue accounts for regulatory purposes.
+In my experience, if Parliamentary counsel mean when, they write when, and if they mean as, they write as.
+We should be slow to re write what they have written.
+The words and not otherwise, if nothing else, make it clear that there might have been some other way of taking items (a) and (b) into account for income tax purposes, but this is the way it is to be done.
+They are making a special rule for life insurance business.
+This is not surprising, for all the reasons that Lord Walker has so clearly and carefully explained.
+The words whether realised or not point to the real change which was being made by the 1989 Act.
+Otherwise it was business as usual.
+It was not until 1995 that these insurance companies were required to file any other sort of accounts than those which they had to file for regulatory purposes.
+It was natural for the Revenue to use the figures in the regulatory revenue account as their starting point.
+In full agreement with Lord Walker, and Lord Hope and Lord Neuberger, therefore, I would allow the Revenues cross appeal and regard the Companys appeal as moot.
+LORD NEUBERGER
+I too would recall the interlocutor of the Inner House of the Court of Session and allow HMRCs cross appeal.
+Having had the great benefit of reading in draft the judgments of Lord Hope and Lord Walker, I can express my reasons shortly.
+The cross appeal raises an issue as to the meaning of section 83(2) of the Finance Act 1989 (as substituted by paragraph 16 of Schedule 8 to the Finance Act 1995).
+It is unnecessary for me to set out section 83, as it is fully quoted in para 7 of Lord Hopes judgment and para 73 of Lord Walkers judgment.
+As will be clear to anyone who has read those judgments, the difficulty in this case arises from the fact that the issue of interpretation arises in the context of a very complex background.
+That complexity is attributable to a number of different factors, namely (i) the technical rules as regards the regulatory returns to be made by life assurance offices, (ii) the many changes in the legislation embodying those rules since they were first introduced in 1870, (iii) the many changes in the statutory provisions governing the taxation of life assurance offices, (iv) the extensive contractual provisions in the documentation governing the scheme (the scheme) for transferring of the business of Scottish Widows Fund and Life Assurance Society to Scottish Widows plc (the Company), and (v) the details of the regulatory returns made by the Company in the three accounting years in issue.
+When considering the application of section 83(2) to the facts of this case, I am sceptical about the value of analysing the history of the statutory provisions governing either the returns to be made by life assurance offices or the taxation of profits made by life assurance offices i.e. what I have characterised as factors (ii) and (iii).
+This cross appeal concerns the meaning of the statutory provision in force during the three relevant years, section 83(2), and its impact on the returns actually made in respect of those years, in the then stipulated form by the Company.
+Particularly as the provisions of the scheme, the prescribed forms for returns, and the contents of the Companys returns for the three years in question, all require careful analysis, it seems to me that to focus in addition on the rather intricate history, as opposed to the present provisions, of the regulations, risks taking ones eye off the ball (or, as Lord Walker puts it, not seeing the wood for the trees).
+Legislative archaeology has its place in statutory interpretation, but its role is limited.
+Where a statutory provision, when read in its immediate statutory and practical context, has a meaning which is tolerably clear as a matter of language, and not unreasonable or unfair in terms of its consequences, it seems to me that little is to be gained, and much may be lost (in terms of time, expense and eventual confusion) by going into the genesis and development of the provision in earlier legislation.
+As Lord Hope points out, such an approach is consistent with what was said both by Lord Wilberforce in Farrell v Alexander [1977] AC 59, 73 and by Lord Diplock in Inland Revenue Commissioners v Joiner [1975] 1 WLR 1701, 1715 6.
+Once one understands the scheme, the relevant regulations, the forms, and the Companys returns for the three years in question, it appears to me that the answer to the question posed on the cross appeal, namely the meaning and effect of section 83(2), is tolerably clear.
+I could not hope to equal the clarity of Lord Walkers analysis in paras 49 to 53, 57 to 70, and 82 to 91, and, very gratefully, adopt the benefit of his distillation of the various complex matters which he there explains.
+Turning to the central issue on the cross appeal, the meaning of section 83(2), it may be a little glib to suggest that HMRCs case is ultimately vindicated by a single word.
+However, if one was to isolate a single crucial point, it seems to me that it would involve focussing on the word as in that subsection, as Lady Hale suggested during argument.
+Section 83(2) stipulates that the items which should be taken into account as receipts of [a particular accounting] period are to be those items identified in paras (a) and (b) as brought into account for [that] period of account.
+The obvious and natural effect of the words which I have emphasised is that those items are to be taken into account for the period in question in the same way and to the same extent as they are brought into account for that period.
+It was argued on behalf of the Company that the expression as brought into account for a period of account should be treated simply as a reference to the period in which the item was brought into account, and was not concerned with how the item was brought into account.
+Particularly in the light of the inclusion of the word as, that does not seem to me to accord with the natural reading of the expression.
+Although both the Company and HMRC relied on other provisions in the 1989 Act to support their respective cases on the meaning of the expression, I am unconvinced that they are of any real assistance.
+Thus, it was suggested that the words (and not otherwise) in the subsection assisted the Companys interpretation.
+I do not see how that is so: they are there simply to emphasise that an item is only to be brought into account if it falls within the expression, and therefore they can take the issue of what the expression means no further.
+Equally, the fact that section 83A(1) (as inserted by paragraph 16 Schedule 8 to, the 1995 Act and amended by paragraph 6 of Schedule 31 to the 1996 Act) defines the term brought into account does not take matters further, as the position of each party is consistent with that definition.
+The conclusion that HMRCs construction of section 83(2) is correct seems to me to be supported, rather than undermined, by the normal approach to taxation of business profits as explained by Lord Halsbury LC in Gresham Life Assurance Society v Styles [1892] AC 309, 315 and by Lord Hoffmann in Revenue and Customs Commissioners v William Grant & Sons Distillers Ltd [2007] UKHL 15, [2007] SC (HL) 105, [2007] 1 WLR 1448, para 2.
+In connection with taxing business profits, the concept of a profit should normally be accorded its proper meaning, which will obviously depend on the specific context, but current accountancy practice is generally a good, and often the best, guide as to the precise quantification of any profit.
+In the case of a life assurance business, HMRCs case is that, in effect, statute requires the profit to be assessed by a rather unusual means, namely by reference to the returns in the regulatory forms.
+This is entirely consistent with the normal approach to assessing the profits of companies for taxation purposes, as these returns effectively take the place of the statutory audited accounts, which are relied on to define the profits of the overwhelming majority of other businesses owned by limited companies.
+Furthermore, although there is, at first sight, real force in the Companys argument that HMRCs case results in its business being taxed on some figure which cannot sensibly be said to be a profit, a closer analysis of the situation, as provided by Lord Walker in paras 81 to 90 and 95 to 105, shows that this is incorrect.
+Accordingly, and in agreement with the fuller reasoning of Lord Hope and Lord Walker, I would allow HMRCs cross appeal.
+As the cross appeal succeeds, it is unnecessary to consider the Companys appeal.
+I agree with Lord Walker that it would be better not to go into the question whether the majority of the Inner House was right in finding for HMRC on section 83(3).
+It is tempting to do so, given that there is a decision of the Inner House on the point.
+However, at least on the basis of the argument we have heard on this appeal, it does seem to me that the interpretation of subsection (3) is rather difficult, and I think it would be better to wait for a case where the issue matters, not least as it may be that some assistance would be gleaned from the facts of such a case, which may throw light on the practical consequences of the rival interpretations.
+LORD CLARKE
+I confess that I was initially attracted by the approach of Lord Emslie to the issues in relation to both the cross appeal and the appeal.
+However, having considered the masterly judgment of Lord Walker, I have found his reasoning compelling and agree with him (and indeed Lord Hope, Lady Hale and Lord Neuberger) that the Revenues cross appeal on the true construction of section 83(2) of the Finance Act 1989 as amended should be allowed.
+Like Lord Walker, Lady Hale and Lord Neuberger, I prefer to express no view on the issue of the true construction of section 83(3).
+I too would therefore allow the Revenues cross appeal and treat the Companys appeal as moot.
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+The Leasehold Reform Act 1967 is on its face a statute about houses, not commercial buildings.
+The buildings with which we are concerned were originally designed and used as houses, but at the relevant date were used entirely for commercial purposes, one for offices, the other (in the judges words) as a self catering hotel.
+In both cases the courts below felt constrained to hold that they were houses within the meaning of the 1967 Act, with the consequence that the lessees were entitled to enfranchise, that is, to acquire the freeholds compulsorily from their lessors on the terms fixed by the Act.
+In the Court of Appeal [2010] EWCA Civ 748; [2010] 1 WLR 2317 Lord Neuberger of Abbotsbury MR regretted this result.
+He saw it as the probably unintended consequence of amendments made by the Commonhold and Leasehold Reform Act 2002, removing the previous residence requirements.
+However, he felt bound to apply his view of the relevant provisions as they stood after those amendments, rather than to decide what the legislature would have said if it had fully appreciated the consequences (para 57).
+From the material we have been shown, he was clearly right to think that his interpretation did not reflect Parliaments intentions.
+The thinking behind the 2002 legislation is apparent from the preceding Draft Bill and Consultation Paper Commonhold and Leasehold Reform (Cm 4843), published by the Lord Chancellor in 2000.
+It included proposals for the introduction of an entirely new form of tenure, known as Commonhold, and for amendment of the existing provisions relating to leases of flats (under the Leasehold Reform, Housing and Urban Development Act 1993) and of houses (under the 1967 Act).
+The first paragraph of the Introduction leaves no doubt that its purpose was to address perceived flaws in the residential leasehold system (p 107), not in the leasehold system more generally.
+In relation to flats, the governments view was that the residence tests under the 1993 Act were too restrictive, for example, in excluding someone subletting a flat, or occupying a flat as a second home.
+The residence requirement would therefore be abolished; but, to restrict the scope for short term speculative gains, it would be replaced by a rule requiring the qualifying tenant to have held the lease for at least two years (pp 155 6).
+A similar approach was proposed for leases of houses under the 1967 Act: This would bring the residence test for houses in line with the proposals for flats.
+It would allow long leaseholders of second homes to benefit and would also enable leaseholders who lease houses through a company to enfranchise.
+Furthermore, as in the case of flats, it would restrict the scope for short term speculative gains (p 189).
+There is no evidence then or thereafter of any ministerial or parliamentary intention to extend the scope of the Act more generally, or in particular to confer statutory rights on lessees of buildings used for purely non residential purposes.
+Although the 1967 Act like the 1993 Act is in a sense expropriatory, in that it confers rights on lessees to acquire rights compulsorily from their lessors, this has been held not to give rise to any interpretative presumption in favour of the latter.
+As Millett LJ said of the 1993 Act: It would, in my opinion, be wrong to disregard the fact that, while the Act may to some extent be regarded as expropriatory of the landlord's interest, nevertheless it was passed for the benefit of tenants.
+It is the duty of the court to construe the 1993 Act fairly and with a view, if possible, to making it effective to confer on tenants those advantages which Parliament must have intended them to enjoy. (Cadogan v McGirk [1996] 4 All ER 643, 648) By the same token, the court should avoid as far as possible an interpretation which has the effect of conferring rights going beyond those which Parliament intended.
+Statutory definition
+Section 2(1) defines house in the following terms: 'house' includes any building designed or adapted for living in and reasonably so called, notwithstanding that the building is not structurally detached, or was or is not solely designed or adapted for living in, or is divided horizontally into flats or maisonettes; and (a) where a building is divided horizontally, the flats or other units into which it is so divided are not separate 'houses', though the building as a whole may be; and (b) where a building is divided vertically the building as a whole is not a 'house' though any of the units into which it is divided may be.
+In the present cases, nothing turns directly on the qualifications introduced by the word notwithstanding (which I shall refer to as the proviso).
+We are concerned with the main part of the definition, which raises two separate but overlapping questions: (i) is the building one designed or adapted for living in? (ii) is it a house reasonably so called? Both questions remain live in Hosebay; in Lexgorge the first has been conceded in favour of the lessees.
+The two parts of the definition are in a sense belt and braces: complementary and overlapping, but both needing to be satisfied.
+The first looks to the identity or function of the building based on its physical characteristics.
+The second ties the definition to the primary meaning of house as a single residence, as opposed to say a hostel or a block of flats; but that in turn is qualified by the specific provision relating to houses divided horizontally.
+Both parts 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, or names in an address book.
+The facts
+The first case (Hosebay) concerns three properties, 29, 31, and 39 Rosary Gardens, South Kensington, London SW7.
+They were originally built as separate houses as part of a late Victorian terrace forming the west side of Rosary Gardens.
+The current leases of Nos 29 and 39 were granted in 1966 for terms expiring in December 2020, subject to covenants for their use as 16 high class self contained private residential flatlets.
+The current lease for No 31 was granted in 1971 for a term expiring in December 2030, subject to a covenant restricting its use to that of a single family residence or a high class furnished property for accommodating not more than 20 persons.
+It was common ground that the current use, which had begun some time before 1981, was not in accordance with the covenants.
+It was unclear from the evidence when the premises had been converted to their present layout.
+The judge (para 83) proceeded on the basis that the conversions may well have been carried out substantially before the current leases were granted in 1966 and 1971.
+Although there was no evidence as to the actual purpose of the conversions, the Master of the Rolls on the balance of probabilities inferred (principally from the lack of documentation in the hands of the landlords to indicate otherwise) that they had been for the uses described in the leases (para 37).
+Hosebay Ltd acquired all three leases in 1996.
+On 23 April 2007 it served notices on its landlords under section 8 of the 1967 Act to acquire the freeholds of the three properties.
+Judge Marshall QC found that the three properties were at the relevant date being used together to provide short term accommodation for tourists and other visitors to London, or what she described as a self catering hotel (paras 8 and 19).
+Each of the three properties had been fully adapted to provide individual rooms for letting out (para 9), with the exception of two rooms in No 31, one of which was used for office and reception purposes, and the other for storage.
+The great majority of the rooms could be described as rooms with self catering facilities.
+Each room had between one and four beds, furniture, and limited storage space, cooking facilities, and small wet rooms with shower, basin and WC.
+Fresh bed linen and room cleaning, but no other services, were provided to those staying in the rooms.
+On these facts, the judge concluded that each of the three properties was physically adapted for living in even though the current use was itself too transient to qualify as such.
+The Court of Appeal agreed.
+I quote the Master of the Rolls: 33.
+My primary reason for that conclusion is that, in order to determine whether premises are adapted for living in, one looks at the most recent works of adaptation, and assesses objectively, whether they resulted in the property being adapted for living in 36.
+In this case, I consider that the effect of the most recent works of conversion to the three properties, if they were works of adaptation, adapted those properties for living in.
+Ignoring one or two rooms, each room in the three properties is a self contained unit of accommodation, with its own basic small shower room/WC, and its own even smaller and more basic cooking facilities.
+As Moore Bick LJ pointed out in argument, the rooms are entirely appropriate for letting to students on three year degree courses, and, as Mr Johnson rightly accepted, if they had been, all the rooms, and therefore the three buildings, would have been used for living in.
+Even if, as Mr Johnson argued and I am prepared to assume without deciding, the current use of the three properties is not for living in, that certainly does not mean that, viewed objectively, the three properties were not adapted for living in.
+The judge and the Court of Appeal held also that the properties were houses reasonably so called, as the Master of the Rolls explained: externally, each of the three properties has the appearance of being a relatively large town house; internally, each of the three properties has been converted so that almost every room can be used as a self contained unit for one or more individuals, with cooking and toilet facilities.
+I find it hard to see how the judge could be faulted for concluding that, even if each of the three properties might be called something else as well, they could each reasonably be called a house. (para 38)
+The other case (Lexgorge) relates to 48 Queen Anne Street, in Marylebone, London W1.
+It was built in the early 18th century as a house comprising five floors including basement, in a terrace of substantial houses.
+It was occupied for that purpose for many years until 1888, when it began to be used for commercial purposes.
+Coming to more recent times, planning permission was granted in December 1949 for conversion of the second and third floors into a self contained maisonette, and there is some evidence that it was implemented.
+However, from about 1961, all four upper floors were used as offices, and they were so used when the notice was served under the Act on 4 March 2005.
+The whole building was still in office use in June 2005.
+However, by the time of the trial in October 2009, when the judge inspected the property, the upper two floors were in use for residential purposes.
+The office use of the lower floors continued.
+The current lease was granted in 1951 for a term of 110 years.
+The lease described the property as a messuage or residential and professional premises, and restricted its use (subject to landlords' consent) to self contained flats or maisonettes on the upper two floors, professional offices on the first and ground floors, and in the basement storage and lavatory in connection with other parts of the demised premises.
+In 1978, the lease was acquired by Lexgorge Ltd.
+At the time of the notice the office use of all floors had become established, and therefore lawful for planning purposes, although in breach of the lease as respects the upper floors.
+The building is listed as a building of special architectural or historic interest (grade 2); English Heritages records describe it as a Terraced House.
+In this case, as already noted, it is conceded by the lessors that at the material date the premises, although used for offices, were still at least in part designed or adapted for living in.
+It was held by the judge (Judge Dight) and by the Court of Appeal that it was a house reasonably so called, and therefore within the definition.
+The Master of the Rolls said: 53.
+If the upper two floors of the property had been empty, I have little doubt but that the property could reasonably have been called a house, bearing in mind its external character and appearance (a classic town house in London's West End), its internal character and appearance at least on the upper two floors (which were, as I understand it, substantially as constructed), the description of the property in the lease as messuage or residential or professional premises, and, to the extent that it is relevant, the terms of the lease (restricting the use of the upper two floors to residential).
+I find it hard to see why the fact that the upper two floors had been used (even for many years) as offices (in contravention of the terms of the lease) should wreak such a change that the property could no longer reasonably be called a house.
+The authorities
+The first relevant case under the Act was Lake v Bennett [1970] 1 QB 663.
+However, I find it helpful to start from an authority in a different statutory context, Lord Denning MRs judgment in Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320.
+The case related to compulsory acquisition of two properties for the purpose of slum clearance under the Housing Acts.
+The level of compensation would vary significantly depending on whether the property was or was not a house.
+In the absence of a statutory definition of house, Lord Denning adopted the following formula: a building which is constructed or adapted for use as, or for the purposes of, a dwelling (p 1324).
+In Lake v Bennett he suggested that the draftsman of the 1967 Act definition had adopted these words, but added the limitation reasonably so called (p 670).
+Ashbridge itself concerned two adjoining buildings in the same terrace, which had been designated for compulsory purchase, the first (No 17) as an unfit house, the second (No 19) as a building other than a house.
+The buildings were very similar in appearance; both had been designed as shops with rear living rooms and living quarters above, but neither was in current use for living purposes.
+No 17, which had undergone no structural alterations, was held by the Minister to have retained its identity as a dwelling.
+No 19, by contrast, was held to have lost its identity as a dwelling, following structural alterations involving the extension of the shop into the rear living area (p 1325).
+The latter decision was described in the Court of Appeal as extraordinary (p 1327, per Harman LJ), but that did not undermine the validity of the decision in relation to No 17.
+Lord Dennings formula can be seen as his way of expressing the present identity (in the inspectors words), or perhaps function, of a building not currently in use, defined by reference to the purpose of its construction or subsequent adaptation.
+Lake v Bennett itself concerned a three storey house, the ground floor of which had been converted into a shop.
+There was no issue as to the first part of the definition, as it was clear that the building was at least in part adapted for use for living in.
+The Court of Appeal held that notwithstanding the commercial element, the building as a whole was a house reasonably so called and was therefore within the scope of the 1967 Act.
+The reasoning of Lake v Bennett was adopted and extended by the House of Lords in Tandon v Trustees of Spurgeons Homes [1982] AC 755, which remains the leading House of Lords authority on this part of the definition.
+Unfortunately the reasoning of the single majority speech of Lord Roskill, although carrying the unqualified support of Lord Scarman and Lord Bridge, is not without difficulty.
+Further, the case needs to be read in its factual context.
+As in Lake v Bennett, the main problem was to reconcile the statutory recognition (under the proviso) that the building need not be solely designed or adapted for living in, with the need for the building as a whole to be a house reasonably so called.
+This is not a problem in the present cases.
+At the end of his judgment Lord Roskill referred with approval to Lake v Bennett, which he welcomed as stating a principle and [confining] the question of fact to a narrow area , and from which he deduced the following three propositions of law : (1) as long as a building of mixed use can reasonably be called a house, it is within the statutory meaning of house, even though it may also reasonably be called something else; (2) it is a question of law whether it is reasonable to call a building a house; (3) if the building is designed or adapted for living in, by which, as is plain from section 1(1) of the Act of 1967, is meant designed or adapted for occupation as a residence, only exceptional circumstances, which I find it hard to envisage, would justify a judge in holding that it could not reasonably be called a house.
+They would have to be such that nobody could reasonably call the building a house. (p 767)
+Although expressed as propositions of law, they do not in my view offer much assistance as such, at least beyond the facts of the case.
+The first proposition was in terms directed to a building in mixed residential and commercial use.
+Such a building could plausibly be described either as a house with a shop below, or as a shop with a dwelling above.
+That was enough to show that it could reasonably be called a house.
+That proposition cannot in my view be applied more generally.
+The mere fact that a building may be described as a house for other purposes (for example, in the English Heritage list) is not enough to bring it within this part of the definition.
+The second proposition, that what is a house reasonably so called is a question of law, is not easy to extract from the judgments in Lake v Bennett.
+Lord Denning described the judges negative answer to that question as an inference from primary facts depending in part at least on the true interpretation of the words reasonably so called, and one with which the court could interfere if it was a conclusion to which the judge could not reasonably come ([1970] 1 QB 663, 671).
+Salmon LJ described it as partly a question of fact but also a question of law as to the true construction of the meaning of the word house in this Act. (p 672).
+Elsewhere Lord Roskill himself had accepted counsels submission that the definition of house was a mixed question of fact and law ([1982] AC 755, 765), but he saw it as one in which, in the interests of consistency, the question of fact should be confined within narrow limits: p 767.
+More modern authorities have leant against such conceptual debates (see, for example, Lord Hoffmann, in Moyna v Secretary of State for Work and Pensions [2003] UKHL 44, [2003] 1 WLR 1929, paras 25 27).
+In any event, none of these formulations throws much light on how the question should be answered in any particular case.
+The third proposition is again in terms hard to extract from Lake v Bennett.
+Lord Denning described the case before them as a typical case, but thought that difficult issues might arise in other cases: [1970] 1 QB 663, 671.
+He did not suggest that, in such cases, an affirmative answer to the first question would lead to any presumption in respect of the second.
+The examples given in the judgments (pp 671, 672) of cases that would not satisfy the second test a block of flats, the Ritz Hotel or Rowton House (a working mens hostel) can hardly be described as exceptional.
+Rather than a free standing proposition of law, deduced from Lake v Bennett, this proposition seems more an expression of Lord Roskills own view as to the correct policy approach to a building of the kind before him, which was adapted at least in part for occupation as a residence.
+It may be that the real difference between the majority and the minority in Tandon came down to one of policy.
+Lord Wilberforce (in the minority) thought it clear that the building could not reasonably be called a house; it was rather a mixed unit consisting in part of a shop and in part of a dwelling, and as such was not within the policy of the Act: [1982] AC 755, 760.
+For Lord Roskill (in the majority) Parliament had made clear that such mixed units were not in principle to be excluded.
+He noted that such small shops combined with living accommodation were a familiar feature of towns and villages across the country (p 766).
+In this he echoed the view of Salmon LJ (Lake v Bennett [1970] 1 QB 663, 672), who thought that a tenant living above a shop in the circumstances of that case was obviously the sort of person to whom the legislature intended to give security of tenure.
+Such policy considerations do not assist the lessees in this case.
+For the reasons already given, policy if anything points the other way.
+Of more significance for present purposes is the relative lack of weight given by the majority to the appearance of the buildings as a factor in answering the second question.
+Lord Fraser of Tullybelton (in the minority) had regarded appearance as the main element in the character of a building: [1982] AC 755, 762.
+He attached particular weight to the photograph which showed a shop in a row of shops, in contrast with the converted house in Lake v Bennett; to him it was obvious from the photograph that the building could not reasonably be called a house (p 763).
+That, however, was not the approach of the majority.
+Lord Roskill had apparently accepted that in determining the character of the building for these purposes, physical appearance could be relevant, as also its history and the terms of the lease (p 766).
+However, those factors played no detectable part in the final decision.
+The determinative points were that the proportion of residential use, even if only 25%, was substantial (p 766), and that a tenant occupying such a building as his residence was within what was perceived to be the scope of the protection intended by Parliament (p 766).
+Those factors were enough to bring the case within the principle established by Lake v Bennett notwithstanding the differences from that case in relation to the original design and physical appearance of the respective buildings.
+The only other relevant authority at the highest level is the much more recent decision in Boss Holdings Ltd v Grosvenor West End Properties Ltd [2008] UKHL 5; [2008] 1 WLR 289.
+The House of Lords held that a building previously designed or adapted for living in remained a house, even though at the material time it was not only disused but in parts stripped out to the basic structural shell (para 24).
+In contrast to Tandon this case was concerned solely with the first question.
+It was not in dispute that if that question was answered in the affirmative the building qualified as a house reasonably so called.
+As will be seen I do not regard the case as determinative in either of the present appeals.
+However, some comment is desirable, in view of the change of view of Lord Neuberger on one aspect of his leading speech.
+He had proposed the following grammatical analysis of the relevant words of the statutory definition: 18.
+In my judgment, the words designed or adapted for living in, as a matter of ordinary English, require one first to consider the property as it was initially built: for what purpose was it originally designed? That is the natural meaning of the word designed, which is a past participle.
+One then goes on to consider whether work has subsequently been done to the property so that the original design has been changed: has it been adapted for another purpose, and if so what purpose? When asking either question, one is ultimately concerned to decide whether the purpose for which the property has been designed or adapted, was for living in. 19.
+The notion that the word designed in section 2(1) is concerned with the past is reinforced by the later words in the same section was or is [not] solely designed or adapted.
+The use of the past tense is striking in a section which contains a number of verbs only in the present tense.
+In my judgment, the expression is to be construed distributively: thus, the word was governs designed, and the word is governs adapted.
+The present tense is appropriate for adapted because, as Lord Scott of Foscote pointed out in argument, there could have been several successive adaptations, and it is only the most recent which is relevant.
+The word was is in any event difficult to reconcile with Grosvenor's case (as accepted by the judge and the Court of Appeal), as it would be irrelevant whether the property could have been fit for residential occupation at any time in the past.
+Later in his speech, he considered the implications of this analysis for other cases, including how the definition should apply to a property which had been designed for living in, but had subsequently been adapted to another use.
+As a matter of literal language, he thought such a property would be within the definition.
+If, as appeared, designed and adapted were alternative qualifying requirements, a building which had been designed as a house would remain within the definition in spite of its adaptation to other uses.
+Such a conclusion, he accepted, might seem surprising, but it could have been more readily understandable when taken with the residence requirement in the original Act (para 26).
+It was on this latter point that, as Master of the Rolls in the present case, he has had second thoughts.
+It had been put directly in issue by the tenants in Hosebay, who argued (as they have in this court) that because the buildings were originally designed for living in, that was sufficient to bring them within the definition, regardless of any subsequent adaptation to other uses.
+On reconsideration, Lord Neuberger felt bound to reject the argument.
+Although the literalist meaning of designed or adapted was that either alternative would do, that was not by any means what the words naturally convey.
+His earlier thoughts had been based on an over literalist approach to the language used by the legislature: [2010] 1 WLR 2317, para 31.
+In his revised view, a building originally designed for living in, but adapted for some other purpose, was not designed or adapted for living in, unless subsequently re adapted for that purpose (para 40).
+I have no doubt, with respect, that Lord Neubergers second thoughts on this point were correct.
+Context and common sense argue strongly against a definition turning principally on historic design, if that has long since been superseded by adaptation to some other use.
+However, that approach may also have implications for the earlier part of his grammatical analysis in Boss Holdings (see para 31 above).
+The expression was or is designed or adapted is, as he says, to be read distributively: that is, as equivalent to was designed or is adapted.
+While that may support the view that the word designed is directed to the past, the same cannot be said of the expression is adapted.
+Nor (pace Lord Scott) is that grammatically the same as was most recently adapted.
+Logically that expression can only be taken as directed to the present state of the building.
+Once it is accepted that a literalist approach to the definition is inappropriate, I find myself drawn back to a reading which accords more closely to what I have suggested was in Lord Dennings mind in Ashbridge [1965] 1 WLR 1320, that is a simple way of defining the present identity or function of a building as a house, by reference to its current physical character, whether derived from its original design or from subsequent adaptation.
+Furthermore, I would not give any special weight in that context to the word adapted.
+In ordinary language it means no more than made suitable.
+It is true that the word is applied to the building, rather than its contents, so that a mere change of furniture is not enough.
+However, the word does not imply any particular degree of structural change.
+Where a building is in active and settled use for a particular purpose, the likelihood is that it has undergone at least some physical adaptation to make it suitable for that purpose.
+That in most cases can be taken as the use for which it is currently adapted, and in most cases it will be unnecessary to look further.
+That interpretation does not of course call into question the actual decision in Boss Holdings.
+The basis of the decision, as I understand it, was that the upper floors, which had been designed or last adapted for residential purposes, and had not been put to any other use, had not lost their identity as such, merely because at the material time they were disused and dilapidated.
+It was enough that the building was partially adapted for living in, and it was unnecessary to look beyond that: see [2008] 1 WLR 289, para 25.
+That reasoning cannot be extended to a building in which the residential use has not merely ceased, but has been wholly replaced by a new, non residential use.
+Finally I must refer to Prospect Estates Ltd v Grosvenor Estate Belgravia [2008] EWCA Civ 1281; [2009] 1 WLR 1313.
+The Court of Appeal held that a building which had been designed and built as a house, but which for many years had been used almost wholly as offices, was not a house within the definition.
+As in Tandon the case turned ultimately only on the second question, whether the building was a house reasonably so called.
+The facts were much closer to those of the present cases.
+The leading judgment was given by Mummery LJ.
+The building had been built in the 1850s as a house for residential occupation, but since 1958 it had been used substantially (88.5% of the floorspace) for office purposes.
+Under the most recent lease granted in 1972 the use was restricted to offices on all floors, except the top floor which was limited to use as a flat for a director or senior employee of a business occupying the offices below.
+It was accepted by the lessors that there had been insufficient works of adaptation to conclude that it had ceased to be designed for living in (Mummery LJ, para 9), but they challenged the judges conclusion that it was a house reasonably so called.
+That had been based, as the overwhelmingly significant factor, on the fact that the building was designed for living in and that its structure and appearance have (largely) remained unchanged (para 8).
+Mummery LJ held that the judge had given too much weight to those factors, and insufficient weight to the prescriptive terms of the lease, the actual uses of the building and the relative proportions of the mixed use at the relevant date (para 20).
+Goldring LJ, agreeing, found it impossible to accept that a building can reasonably be called a house although no one can lawfully live in virtually 90% of it (para 23).
+In the present case, the Master of the Rolls ([2010] 1 WLR 2317, para 43) questioned the weight placed on that case by counsel for the present appellants in Hosebay: There can be no doubt that the external and internal appearance of the properties are highly relevant factors on this issue, and it is clear from the Prospect Estates case [2009] 1 WLR 1313 that, in so far as user is significant, the permitted use under the lease is a relevant factor.
+In those circumstances, even assuming that actual use is also relevant, I find it hard to see how it can be sensibly said that each of the three properties cannot reasonably [be] called a house.
+To hold otherwise would involve concluding that the actual user, even where it involved people occupying virtually all the rooms in the building for relaxing, sleeping, cooking and washing, albeit on a short term basis, trumped all the other factors to the extent of disabling the building from being able to be a house . reasonably so called.
+He also doubted the decisive weight placed by Goldring LJ on the terms of the lease.
+He thought the thrust of the judgments in Lake v Bennett [1970] 1 QB 663 and the opinion of Lord Roskill in Tandon [1982] AC 755 was that the question was to be determined essentially by reference to [the buildings] external and internal physical character and appearance (para 46).
+He was not convinced that it would occur to most people, asked whether a building could reasonably be called a house, to ask about the permitted use under any lease, or that they would be influenced if told what the permitted use was (para 47).
+He suggested that the ratio of Prospect Estates should be treated as being limited to a case where residential use is either prohibited entirely, or restricted to a very small part of the building, and the actual use accords with that (para 49).
+As will be apparent from my earlier analysis of Tandon, I cannot agree that Lord Roskill regarded external and internal physical character and appearance as the determining factors.
+I agree with the Master of the Rolls that the terms of the lease as such should not have been treated as the major factor.
+However, in so far as Mummery LJ treated the use of the building, rather than its physical appearance, as determinative, his approach was in my view entirely consistent with the reasoning of the majority in Tandon as I have explained it.
+I consider that Prospect Estates [2009] 1 WLR 1313 was rightly decided, and that the ratio need not be limited in the way the Master of the Rolls proposed.
+The present cases
+which I can deal with briefly.
+I would allow the appeal in Hosebay on the grounds that a building which is wholly used as a self catering hotel is not a house reasonably so called within the meaning of this statute.
+As appears from para 38 of their judgment (quoted above), the contrary view of the Court of Appeal turned on two main points: (i) the external appearance of each property as a town house; (ii) the internal conversion to self contained units, with cooking and toilet facilities.
+I find it difficult with respect to see the relevance of the second point to this part of the definition, which only arises in relation to a building which is in some sense adapted for living in under the first part.
+It is not suggested that the building is divided in a way which comes within the proviso.
+The first point, for the reasons given in my analysis of Tandon, should not have been given determinative weight.
+The fact that the buildings might look like houses, and might be referred to as houses for some purposes, is not in my view sufficient to displace the fact that their use was entirely commercial.
+I turn to consider the application of these principles to the present appeals,
+In these circumstances I find it unnecessary to reach a concluded view on the application of the first part of the definition in this appeal.
+I agree with the appellants (and the judge) that living in means something more settled than staying in; and that the present use does not qualify as such.
+There is more room for debate, however, whether the premises are to be taken as adapted solely for such use, to the exclusion of longer term occupation.
+The Court of Appeal, as I understand it, were influenced not only by the consideration that the rooms might be used (for example) for longer term student occupation, but also that their current layout probably dates from earlier adaptation to the uses described in the leases, which could well be regarded as sufficiently settled to qualify as living in.
+One of the values of the two part definition is that it becomes unnecessary to resolve such narrow factual issues.
+In Lexgorge I would also allow the appeal on similar grounds.
+A building wholly used for offices, whatever its original design or current appearance, is not a house reasonably so called.
+The fact that it was designed as a house, and is still described as a house for many purposes, including in architectural histories, is beside the point.
+In this case no issue arises under the first part of the definition.
+It is unnecessary to consider whether the concession in that respect was rightly made, although it is possible that it was based on a wider interpretation of Boss Holdings [2008] 1 WLR 289 than my own analysis would have supported.
+In summary, I would allow both appeals, and hold that neither building was on the relevant date a house within the meaning of section 2 of the 1967 Act.
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+On 27 November 2008, at the Crown Court in Isleworth, the respondent, Aloke Varma, pleaded guilty to three offences of being knowingly concerned in the fraudulent evasion of duty, contrary to section 170(2)(a) of the Customs and Excise Management Act 1979.
+The offences were committed on 24 October 2007 and 3 and 13 April 2008.
+On each occasion the defendant was stopped at Gatwick Airport and found to be in possession of a quantity of tobacco which he had brought into the United Kingdom without payment of the relevant import duties.
+Following his pleas of guilty, the matter was adjourned for sentence.
+I take these facts from the agreed statement of facts and issues.
+On 15 January 2009 His Honour Judge Katkhuda (the judge), exercising his powers under section 12 of the Powers of Criminal Courts (Sentencing) Act 2000, sentenced Varma to a conditional discharge for a period of two years.
+In deciding that this was the appropriate sentence, the judge referred to Varmas psychological problems and facial neuralgia.
+Confiscation proceedings under Part 2 of the Proceeds of Crime Act 2002 (the 2002 Act) were postponed.
+The confiscation hearing was held on 3 April 2009.
+The judge found the value of the defendants benefit to be 7,257.86 and the available amount to be 1,500.
+Each of these figures had been agreed between the parties.
+A confiscation order was made in the sum of 1,500, which was ordered to be paid by 31 March 2010, with a term of imprisonment of 45 days in default of payment.
+On 13 July 2009 Varma sought leave to appeal out of time against the confiscation order.
+He relied on R v Clarke [2009] EWCA Crim 1074, [2010] 1 WLR 223, in which the Court of Appeal (comprising Hooper LJ, Cox J and the Recorder of Nottingham) held in a reserved judgment that the Crown Court does not have the power to make a confiscation order against a defendant following conviction for an offence if he or she is made the subject of an absolute or conditional discharge in respect of that same offence.
+The essential reasoning was that it was inappropriate to punish a defendant by imposing a confiscation order in a case in which (by virtue of the fact that a conditional discharge had been imposed) the court thought that punishment was inexpedient.
+Varmas appeal was heard on 10 June 2010, together with three similar cases.
+The defendant in each of the four cases before the Court of Appeal had pleaded guilty in the Crown Court to one or more offences, had received a conditional discharge and had been made the subject of a confiscation order under the 2002 Act.
+The ground of appeal in each case was that, following Clarke, the Court had no power to make a confiscation order.
+According to the agreed statement of facts and issues, oral argument was constrained by the Court of Appeals clear indication that it wished to focus on whether it was bound by Clarke.
+On 8 July 2010 the Court of Appeal (Lord Judge CJ, Goldring LJ and Rafferty, Wilkie and King JJ) handed down their judgment in each of the four appeals: R v Magro, R v Brissett, R v Smith and R v Varma [2010] EWCA Crim 1575, [2011] QB 398.
+The Court of Appeal held that, following the decision in Clarke, the Crown Court did not have power to make a confiscation order against a defendant following conviction for an offence if he or she receives an absolute or conditional discharge in respect of that offence.
+Giving the judgment of the court, Lord Judge CJ made clear (at para 29) that, but for the decision in Clarke, the court would have reached a contrary conclusion.
+On this basis, the Court of Appeal extended time to appeal in the case of Varma, allowed the appeal against sentence and quashed the confiscation order.
+The court held that a point of law of general public importance was involved in their decision and certified the following question: Does the Crown Court have power to make a confiscation order against a defendant following conviction for an offence if he or she receives an absolute or conditional discharge for that offence? This court subsequently granted permission to appeal.
+The three remaining applications for leave to appeal against sentence were adjourned pending the outcome of this appeal.
+As agreed in the statement of facts and issues, the issue which arises for consideration in this appeal is whether the Crown Court has power to make a confiscation order against a defendant following conviction for an offence if he or she receives an absolute or conditional discharge for that offence.
+The statutory framework
+provides: Section 12 of the Powers of Criminal Courts (Sentencing) Act 2000, (1) Where a court by or before which a person is convicted of an offence . is of the opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment, the court may make an order either (a) discharging him absolutely; or (b) if the court thinks fit, discharging him subject to the condition that he commits no offence during such period, not exceeding three years from the date of the order, as may be specified in the order . (7) Nothing in this section shall be construed as preventing a court, on discharging an offender absolutely or conditionally in respect of any offence, from making an order for costs against the offender or imposing any disqualification on him or from making in respect of the offence an order under section 130, 143 or 148 below (compensation orders, deprivation orders and restitution orders).
+As is apparent, there is no reference in subsection (7) to confiscation orders.
+At the date when section 12 of the 2000 Act came into force, section 2(6) of the Drug Trafficking Act 1994, repeating section 1(6) of the Drug Trafficking Offences Act 1986, provided: No enactment restricting the power of a court dealing with an offender in a particular way from dealing with him also in any other way shall by reason only of the making of an order under this section restrict the Crown Court from dealing with an offender in any way the court considers appropriate in respect of a drug trafficking offence." Similar provision was made, with necessary alterations to the language, to deal with non drug trafficking offences, by section 72(6) of the Criminal Justice Act 1988.
+Section 14 of the 2000 Act provides: (1) Subject to subsection (2) below, a conviction of an offence for which an order is made under section 12 above discharging the offender absolutely or conditionally shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under section 13 above. (3) Without prejudice to subsections (1) and (2) above, the conviction of an offender who is discharged absolutely or conditionally under section 12 above shall in any event be disregarded for the purposes of any enactment or instrument which (a) imposes any disqualification or disability upon convicted persons; or (b) authorises or requires the imposition of any such disqualification or disability. (6) Subsection (1) above has effect subject to section 50(1A) of the Criminal Appeal Act 1968 and section 108(1A) of the Magistrates' Courts Act 1980 (rights of appeal); and this subsection shall not be taken to prejudice any other enactment that excludes the effect of subsection (1) or (3) above for particular purposes.
+Section 6 of the Proceeds of Crime Act 2002, as amended, provides: (1) The Crown Court must proceed under this section if the following two conditions are satisfied. (2) The first condition is that a defendant falls within any of the following paragraphs (a) he is convicted of an offence or offences in proceedings before the Crown Court; (3) The second condition is that (a) the prosecutor asks the court to proceed under this section, or (b) the court believes it is appropriate for it to do so. (a) it must decide whether the defendant has a criminal lifestyle; (b) if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct; (4) The court must proceed as follows (c) if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct. (5) If the court decides under subsection (4)(b) or (c) that the defendant has benefited from the conduct referred to it must (a) decide the recoverable amount, and (b) make an order (a confiscation order) requiring him to pay that amount. (6) But the court must treat the duty in subsection (5) as a power if it believes that any victim of the conduct has at any time started or intends to start proceedings against the defendant in respect of loss, injury or damage sustained in connection with the conduct. (7) The court must decide any question arising under subsection (4) or (5) on a balance of probabilities.
+Section 13 of the 2002 Act provides: (1) If the court makes a confiscation order it must proceed as mentioned in subsections (2) and (4) in respect of the offence or offences concerned. (2) The court must take account of the confiscation order before (a) it imposes a fine on the defendant, or (b) it makes an order falling within subsection (3). (3) These orders fall within this subsection (a) (compensation orders); (b) (forfeiture orders); (c) (deprivation orders); (d) (forfeiture orders). (4) Subject to subsection (2), the court must leave the confiscation order out of account in deciding the appropriate sentence for the defendant .
+Section 14 of the 2002 Act provides: (1) The court may (a) proceed under section 6 before it sentences the defendant for the offence . or (b) postpone proceedings under section 6 for a specified period. (11) A confiscation order must not be quashed only on the ground that there was a defect or omission in the procedure connected with the application for or the granting of a postponement. (12) But subsection (11) does not apply if before it made the confiscation order the court (a) imposed a fine on the defendant; (b) made an order falling within section 13(3); (c) made an order under section 130 of the Sentencing Act (compensation orders).
+Section 15 of the 2002 Act provides: (1) If the court postpones proceedings under section 6 it may proceed to sentence the defendant for the offence (or any of the offences) concerned. (2) In sentencing the defendant for the offence (or any of the offences) concerned in the postponement period the court must not (a) impose a fine on him, (b) make an order falling within section 13(3), or (c) make an order for the payment of compensation under section 130 of the Sentencing Act. (3) If the court sentences the defendant for the offence (or any of the offences) concerned in the postponement period, after that period ends it may vary the sentence by (a) imposing a fine on him, (b) making an order falling within section 13(3), or (c) making an order for the payment of compensation under section 130 of the Sentencing Act. (4) But the court may proceed under subsection (3) only within the period of 28 days which starts with the last day of the postponement period. (7) The postponement period is the period for which proceedings under section 6 are postponed.
+Statutory construction
+In my opinion the question whether the Crown Court has power to make a confiscation order under Part 2 of the 2002 Act in a case where the court has given the defendant an absolute or conditional discharge depends upon the true construction of sections 6 and 13 to 15 of that Act.
+I have reached the clear conclusion that there is, not only such a power, but in most cases a duty to make such an order for the reasons set out below.
+It is first important to have regard to the duties imposed upon the court by section 6.
+Those duties are contained in section 6(1), (4), (5) and (7).
+The duties are absolute, subject to subsection (6), which qualifies subsection (5).
+By subsection (1), the court must proceed under the section if the two conditions in subsections (2) and (3) are satisfied.
+Subsection (2)(a) is satisfied if the defendant is convicted.
+Subsection (3) is satisfied if, as in this case, the prosecutor asks the court to proceed under the section.
+If the prosecutor does not ask the court to proceed under the section, subsection (3) will also be satisfied if the court believes that it is appropriate to do so.
+There was no argument in this case as to the correct approach of the judge in such a case and I therefore say nothing about it.
+If those conditions are met (as they were in this case), the court must proceed as set out in subsection (4), under which it must decide whether the defendant has a criminal lifestyle and, if so, whether he has benefited from his general criminal conduct and, if he does not have a criminal lifestyle, whether he has benefited from his particular criminal conduct.
+There are specific provisions relating to those questions which are not relevant for the purposes of resolving the issue in this appeal.
+By subsection (5), if the court decides that the defendant has benefited from his general criminal conduct or his particular criminal conduct, it must decide the recoverable amount and make a confiscation order requiring him to pay that amount.
+Subsection (6) converts that duty into a power in circumstances which are not relevant for present purposes.
+Sections 7 to 12 are also for the most part irrelevant for present purposes.
+It can be seen that there is nothing in section 6 which suggests that the court should not make a confiscation order where it gives or proposes to give the defendant an absolute or conditional discharge.
+On the contrary section 6(1) is expressed in absolute terms in that it leaves the court with no discretion whether or not to make a confiscation order if the conditions in subsections (2) and (3) are satisfied.
+Subsection (4) then provides how the court must proceed and subsection (5) provides that, where the court decides that the defendant has benefited from relevant criminal conduct, it must decide the recoverable amount (in accordance with section 7) and must make a confiscation order requiring him to pay that amount.
+Section 13 expressly provides what the court is to do if it makes a confiscation order.
+By subsection (1) it must proceed as mentioned in subsections (2) and (4).
+By subsection (2) it must take account of the confiscation order before it imposes a fine on the defendant or imposes any of the financial penalties specified in subsection (3).
+Subsection (5) and (6) contain provisions which relate to a case where the court makes both a confiscation order and a compensation order under section 130 of the 2000 Act.
+Section 13(4) is of significance in the context of this appeal.
+It provides that, subject to subsection (2), the court must leave the confiscation order out of account in deciding the appropriate sentence for the defendant.
+It is important to note that the purpose of section 13(4) is not to limit the scope of the confiscation order, let alone to prohibit the making of such an order.
+It could not have that effect because it assumes that a confiscation order has been made.
+However that may be, as I see it, the expression in deciding the appropriate sentence for the defendant must be a reference to the sentencing process, at which the court will consider how the defendant should be dealt with.
+As part of that process the court will no doubt consider all the options open to it, including the option of giving the defendant an absolute or conditional discharge.
+It is sometimes said that an absolute or conditional discharge is not a sentence because, under section 12(1) of the 2000 Act, the court may make such an order only if it is of the opinion that it is inexpedient to inflict punishment.
+Whether such an order is a sentence or not, it is in my opinion an order made as a result of deciding the appropriate sentence within the meaning of section 13(4).
+The effect of section 13(4) is that, in making that decision, the court must leave the confiscation order out of account.
+It was not suggested in argument that it would not be open to the court which had made a confiscation order to give the defendant an absolute or conditional discharge.
+The Court of Appeal thought (at para 28) that it would in principle be free to do so.
+I agree, although whether it would have power to do so would depend upon whether the court was of the opinion that it was inexpedient to inflict punishment.
+In deciding that question, by reason of section 13(4), it must, subject to subsection (2), leave the confiscation order out of account.
+All naturally depends upon the circumstances and it will no doubt be a rare case in which it will be appropriate to make an order in the form of an absolute or conditional discharge.
+However, it does not seem to me to be necessarily wrong in principle for a court to conclude that it is inexpedient to inflict punishment in a case where the defendant has benefited from his criminal conduct and a confiscation order has been made.
+For example, it may be inappropriate to impose a fine or other financial penalty in the light of the confiscation order, perhaps because of the defendants means, and there may be strong mitigation which persuades the court that it would not be appropriate to impose a sentence of imprisonment or a community order.
+Some assistance is also to be derived from sections 14 and 15.
+Subsections (1) to (4) of section 14 provide that the court may either (a) proceed under section 6 before it sentences the defendant or (b) postpone proceedings under section 6 for a period or periods up to a maximum of two years, although the maximum does not apply if there are exceptional circumstances.
+Section 15(1) provides that, if the court postpones proceedings under section 6, it may proceed to sentence the defendant.
+Although sections 14 and 15 contemplate the postponement of the section 6 proceedings, they do not nullify the duty of the court to act under section 6.
+Thus, where, as is common in practice, the court proceeds to sentence before the confiscation proceedings under section 6, the duty of the court to proceed under section 6 remains.
+The Court of Appeal has correctly so held on a number of occasions: see eg R v Hockey [2007] EWCA Crim 1577, [2008] 1 Cr App R (S) 279.
+The effect of section 15(2) and (3) is that, where the confiscation proceedings are postponed and the defendant is sentenced during the postponement period, the court may not impose a fine or other financial penalty upon him, but (subject to subsection (4)) the court may subsequently vary the sentence, by imposing a fine or other financial penalty, after the postponement period.
+Those provisions expressly contemplate confiscation proceedings after the end of the postponement period.
+They are consistent with section 13(2), which provides that the court must take account of the confiscation order before it imposes a fine or other specified financial penalty.
+Thus a sentence passed before a confiscation order is made cannot include a fine or other financial penalty because to do so would be inconsistent with section 13(2).
+By section 15(3) the Act contemplates that in those circumstances, when a confiscation order is made after the end of the postponement period, the court may then think it appropriate to impose a fine or other financial penalty, in which case it must take account of the confiscation order in accordance with section 13(2).
+The importance of these provisions for present purposes is that they show that the statutory scheme envisages, indeed requires, that confiscation proceedings take place after the end of the postponement period.
+In summary, the position as I see it on the true construction of the 2002 Act is that the court remains under a duty to proceed under section 6 and, subject to the express terms of the section, must make an order.
+In the case in which the section 6 proceedings take place before the defendant is sentenced, as stated above I can see no basis upon which it could be submitted to the court that no confiscation order should be made because it would be appropriate to give the defendant an absolute or conditional discharge.
+There is nothing in the Act which gives the court power to decline to discharge its duty to make a confiscation order under section 6 on that or any other ground.
+On the other hand, if the court decides (as it is entitled to do under section 15(1)) to postpone the confiscation proceedings under section 6 and proceed to sentence the defendant, if it makes an order for an absolute or conditional discharge, again I can see no basis upon which the making of such an order could absolve the Crown Court from its duty to proceed under section 6 or, having done so, from its duty to make a confiscation order under that section.
+If the relevant subsections of section 6 were satisfied, it would be bound to make such an order by reason of the plain words of subsection (1).
+I turn to consider those conclusions in the light of the decision in Clarke, the history of the 2002 Act, the meaning of punishment in section 12(1) of the 2000 Act and the position in Scotland.
+The decision in Clarke
+In Clarke the Court of Appeal said at para 48, in my opinion correctly, that, if the 2002 Act is read on its own, there could be no doubt that the court has jurisdiction to make a confiscation order.
+Equally it recognised at para 77 that the fact that the 2002 Act imposes a mandatory regime is obviously a powerful argument for saying that the court must proceed under section 6 even though the defendant is being absolutely or conditionally discharged, but in the remainder of para 77 it summarised its reasons for rejecting the argument.
+However before doing so, it considered the position under section 14 of the 2000 Act.
+It first rejected the argument that, as a matter of jurisdiction, section 14 prevented the court from making both a confiscation order and an order for an absolute or conditional charge.
+It did so on two bases.
+The first (at para 46) was that the court had jurisdiction to make a confiscation order under section 14(1)(a) of the 2002 Act before proceeding to sentence the defendant.
+There was nothing in section 14 of the 2000 Act retrospectively to deprive the court of that jurisdiction.
+The second was this.
+By section 14(1) of the 2000 Act, a conviction of an offence for which an order is made under section 12 of the 2000 Act discharging the offender absolutely or conditionally shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made.
+The court held that a conviction which leads to the conditional or absolute discharge in the circumstances of the instant case is a conviction in the same proceedings as those in which the confiscation order is made, so that the conviction is not deemed not to be a conviction, within section 14(1): see paras 68 and 70 in Clarke and para 17 in the Court of Appeals judgment in the instant case.
+I agree with that analysis.
+The critical question was whether section 12 of the 2000 Act prevents the Crown Court from making a confiscation order and an absolute or conditional discharge order.
+The reasons given by the court in Clarke for answering that question in the affirmative were these (at para 77): However, in the light of R v Savage (1983) 5 Cr App R (S) 216 and R v Young (1990) 12 Cr App R (S) 262, section 12(7) [of the 2000 Act] and the history of section 12(7), we have reached the conclusion that the Crown Court has no power to make a confiscation order against a defendant following conviction of an offence if he or she receives an absolute or conditional discharge for that offence.
+If Parliament had wanted to include confiscation orders within the 1973 predecessor to section 12 (see para 37 above) or in the 2000 Act, it could easily have done so.
+We are mindful of the fact that the orders which had been made in R v Savage and R v Young were made under legislation which gave the power to make the order but did not require the making of an order, but we do not think that this affects the conclusion which we have reached.
+The argument accepted by the court in Clarke was that, as a matter of principle or law, section 12 of the 2000 Act prevented the Crown Court from making both an order for an absolute or conditional discharge and a confiscation order.
+The court concluded (at para 31) that there is a general principle or rule of law that no punitive order may be made in conjunction with an absolute or conditional discharge unless (a) it is listed in section 12(7) of the 2000 Act (viz orders for costs or disqualification, compensation orders, deprivation orders or restitution orders) or (b) the enactment which permits or requires the punitive order to be made expressly or impliedly provides for the making of that punitive order notwithstanding section 12(7).
+As it said in para 77, the court derived that principle from the two earlier decisions of the Court of Appeal in Savage and Young.
+The issue in Savage, in which the appellant pleaded guilty to handling stolen goods, was whether a deprivation order under section 43 of the Powers of Criminal Courts Act 1973 in respect of a motor car could stand with a conditional discharge for the handling.
+The issue in Young, in which the appellant pleaded guilty to managing a company as an undischarged bankrupt, was whether a disqualification under section 2 of the Company Directors Disqualification Act 1986 could stand with a conditional discharge on the count on which he had pleaded guilty.
+It was held in both cases that it could not.
+As Brooke J put it in Young at p 267, it was quite inappropriate for a [disqualification] to be linked with a conditional discharge.
+As is plain from section 12(7) of the 2000 Act, which re enacted earlier statutes, the result in both those cases was reversed by statute.
+However that may be, in my opinion the principle in those cases does not apply to the problem under consideration in this appeal.
+As expressly recognised in Clarke, in Savage and Young the court was considering whether a discretionary order (ie of deprivation or disqualification) could stand with an absolute or conditional discharge.
+In the instant case, for the reasons given above, the confiscation order was not made in the exercise of a power to impose it but in the discharge of a duty to do so.
+This is in my view a critical distinction.
+See further paras 33 to 39 below.
+The Court of Appeal in Clarke accepted the force of that point but held that Parliament must have intended that the court should not have a power or duty to make a confiscation order in circumstances in which an order for an absolute or conditional discharge was made because the Act did not include a reference to confiscation in section 12(7).
+However, it was accepted in Clarke at paragraph 46 (and it is not and could not be in dispute) that the Crown Court has jurisdiction under section 6 of the 2000 Act to make a confiscation order before the judge decides on sentence.
+The court added that such an order would (presumably) have to be quashed if, subsequently, an order of absolute or conditional discharge was made but it recognised that there was no express power to do that.
+For my part, I can see no mechanism by which a lawful confiscation order made by a court pursuant to its duty under section 6 could be quashed.
+The Crown Court would have no jurisdiction to quash it and I can see no basis upon which the Court of Appeal could properly quash it either.
+In Clarke the courts only solution to this problem was as stated in para 78, namely that, given that a confiscation order can, at least in theory, be made before passing sentence it would, as the court put it, obviously be prudent in those very rare cases where an absolute or conditional discharge is a possibility, to decide upon sentence first.
+In the instant case the Court of Appeal described that suggestion as an extra legislative process (para 28) and described the removal of the confiscation order as one which does not easily fit with the structure of the legislative provisions in sections 6, 14 and 15 of the 2002 Act.
+I would go further.
+In my opinion it is inconsistent with them.
+As I see it, the fact that there is no reference to a confiscation order in section 12(7) of the 2000 Act does not lead to the conclusion that Parliament intended that such an order could not stand with an absolute or conditional discharge.
+Whether it can or not depends upon the true construction of the 2002 Act, which to my mind is in clear terms.
+For these reasons I would reject the first of the two reasons given in para 31 in Clarke, namely that no punitive order may be made in conjunction with an absolute or conditional discharge unless (a) it is listed in section 12(7) of the 2000 Act (viz orders for costs or disqualification, compensation orders, deprivation orders or restitution orders).
+The second reason was that no such order may be made unless (b) the enactment which permits or requires the punitive order to be made, here the 2002 Act, expressly or impliedly provides for the making of that punitive order notwithstanding section 12(7).
+I would not accept the second reason precisely as formulated, if only because it assumes that the principles in Savage and Young apply in the present context, whereas to my mind they do not apply to duties imposed upon the court as opposed to powers conferred upon it.
+It is true that there is an argument, which was advanced on behalf of the respondent, that the principle in Savage and Young applies to duties as well as powers.
+Thus attention was drawn to Taylor v Saycell [1950] 2 All ER 887 and Dennis v Tame [1954] 1 WLR 1338 and to section 46 of the Road Traffic Offenders Act 1988.
+In this regard the submission made on behalf of the respondent can be summarised in this way.
+Historically, an important forerunner of section 12(1) of the 2000 Act was section 7(1) of the Criminal Justice Act 1948 (the 1948 Act), which contained the original section which provided for an absolute or conditional discharge if it was inexpedient to inflict punishment.
+Section 12(2) of the 1948 Act, which was a forerunner of section 14(3) of the 2000 Act, provided that the conviction of an offender who is discharged absolutely or conditionally shall be disregarded for the purposes of any enactment which imposes any disqualification or disability upon convicted persons, or authorises or requires the imposition of any such disqualification or disability.
+These sections were considered in the cases of Taylor v Saycell and Dennis v Tame, which were both decisions of the Divisional Court presided over by Lord Goddard CJ.
+In Taylor v Saycell the respondents were convicted by magistrates of using a vehicle without insurance.
+They were fined and disqualified from holding a licence for 12 months.
+They appealed to the Crown Court, which quashed the fines and the disqualifications and substituted conditional discharges.
+On a case stated by the prosecutor, the Divisional Court quashed the conditional discharges on the basis that there was no evidence upon which it could be said that it was inexpedient to inflict punishment.
+Moreover no special reasons had been advanced to avoid what would otherwise be a mandatory disqualification.
+At p 889H Lord Goddard said, obiter, that convictions under the Road Traffic Act 1930 (the RTA 1930) were within section 12(2) of the 1948 Act, that it was within the jurisdiction of the court to make an order for a conditional discharge and that such an order would avoid the necessity for disqualification.
+In Dennis v Tame the defendant was given a conditional discharge, which had the effect under section 12(2) of avoiding disqualification.
+The conditional discharge was set aside on the basis that the Divisional Court had said more than once that the conditional discharge provisions should not be used in order to avoid disqualification in cases where, under the RTA 1930, the defendant must be disqualified in the absence of special circumstances.
+It further held that there were no special circumstances on the facts.
+Attention was also drawn to section 46 of the Road Traffic Offenders Act 1988 (the RTOA 1988), which was relied upon on behalf of the respondent.
+It provides, so far as material (and as set out in Clarke at para 52): Notwithstanding anything in section 14(3) of the Powers of Criminal Courts (Sentencing) Act 2000 a court in England and Wales which on convicting a person of an offence involving obligatory or discretionary disqualification makes . an order discharging him absolutely or conditionally may or must disqualify or endorse.
+It was noted in Clarke that the reference to section 14(3) must have been included because of Taylor v Saycell.
+In Clarke the court said at para 52 that it followed from the reference to section 14(3) in section 46 of the RTOA 1988 that the draftsman was accepting Lord Goddards interpretation of what is now section 14(3), namely that it prevented the imposition of any disqualification or disability in the proceedings for the offence for which the conditional discharge had been granted, subject to any contrary enactment.
+It was submitted on behalf of the respondent that the effect of Taylor v Saycell and Dennis v Tame was that sentencing courts should not impose absolute or conditional discharges in an attempt to avoid disqualification because such a result was inconsistent with the statutory requirement that special circumstances (or special reasons) must be found before disqualification could be avoided.
+For my part, I am not persuaded that either those cases or section 46 of the RTOA 1988 carry the present debate much further forward.
+The cases do no more than reflect the position as it stood under the statutes then in force.
+Otherwise all that the cases did was to say that, as a matter of principle, the courts should not use an absolute or conditional discharge in order to avoid the effect of the RTA 1930, which required disqualification in the absence of special circumstances.
+The reason the cases were decided as they were was because of section 12(2) of the 1948 Act.
+They were concerned with the circumstances in which the court should impose an absolute or conditional discharge where to do so would avoid the effect of the statute.
+They treated the provisions of the statute as paramount.
+They were not concerned with the position we have here, where the terms of the statute are said to yield to the fact of a conditional discharge.
+In all these circumstances I remain of the view that there is an important distinction between the correct approach where the court has a power to impose a penalty together with an absolute or conditional discharge and the correct approach where the court has a duty to do so on the true construction of the statute.
+However, whether that is correct or not, all turns on the true construction of the 2002 Act.
+In my opinion, for the reasons I have given in paras 12 to 22 above, on its true construction the 2002 Act imposes a duty upon the court to make a confiscation order, whether the section 6 proceedings take place before or after the sentencing process.
+As to the second reason in para 31 of Clarke, the courts reasoning may be summarised in this way.
+Parliament had enacted legislation empowering courts to make various other punitive orders and had in the same legislation specified that such orders could be made even where an absolute or conditional discharge had been imposed.
+Examples of such punitive orders were orders disqualifying a person from driving under section 46(1) of the RTOA 1988, exclusion orders made under section 1 of the Licensed Premises (Exclusion of Certain Persons) Act 1980, designed to deal with persons who commit violent offences on licensed premises, banning orders made under the Football (Disorder) Act 2000 and orders made under the Sex Offenders Act 1997 requiring a defendant to comply with notification requirements.
+The 2002 Act does not expressly provide for the making of a confiscation order where an order for discharge is imposed.
+The absence of a specific provision in the 2002 Act could be taken to show Parliaments intention that confiscation orders should not be coupled with an order for absolute or conditional discharge.
+This was so notwithstanding the fact that the 2002 Act imposed a mandatory regime for confiscation orders.
+The difficulty with this general point is that identified on behalf of the appellant.
+Each of the statutes referred to empowered or required the court to impose a disqualification or disability of one kind or another.
+The explicit reference in those statutes to the regime for conditional and absolute discharges appears to have been designed principally to ensure that courts do not interpret section 14(3) of the 2000 Act as preventing the court from making such orders.
+However, first, section 14(3) would have no application to confiscation orders because a confiscation order is not a disqualification or disability.
+Secondly, it does not necessarily follow from the fact that other legislation contains an express provision permitting a punitive order and an absolute or conditional discharge to be made in respect of the same offence that the absence of such a provision in the 2002 Act has the effect of preventing a court from imposing both a confiscation order and an absolute or conditional discharge.
+All depends upon the scheme of the particular Act and, for the reasons I have given, I would accept the submission made on behalf of the appellant that the scheme of the 2002 Act demonstrates an intention on the part of Parliament to put in place a mandatory scheme of confiscation designed to deprive offenders of the benefit of their offending.
+The history of the 2002 Act
+Some reliance was placed upon the history of the 2002 Act, which was considered in detail by the Court of Appeal in Clarke.
+The first statute which provided for confiscation to which we were referred was the Drug Trafficking Offences Act 1986 (the 1986 Act).
+Section 1(1) (5) were very similar to what became section 6 of the 2002 Act.
+In summary, they required the court to take certain steps when a person appeared before the Crown Court for sentencing.
+They required the court to determine whether he had benefited from the drug trafficking offence or offences for which he was to be sentenced.
+Section 1(4), (5) and (6) then provided: (4) If the court determines that he has so benefited, the court shall, before sentencing or otherwise dealing with him in respect of the offence or, as the case may be, any of the offences concerned, determine in accordance with section 4 of this Act the amount to be recovered in his case by virtue of this section. (5) The court shall then, in respect of the offence or offences concerned (a) order him to pay that amount, (b) take account of the order before (i) imposing any fine on him, or (ii) making any order involving any payment by him, or (iii) making any (forfeiture orders), or (deprivation orders), and (c) subject to paragraph (b) above, leave the order out of account in determining the appropriate sentence or other manner of dealing with the defendant. (6) No enactment restricting the power of a court dealing with an offender in a particular way from dealing with him also in any other way shall by reason only of the making of an order under this section restrict the Crown Court from dealing with an offender in any way the court considers appropriate in respect of a drug trafficking offence.
+The 1986 Act was followed by the Criminal Justice Act 1988 (the 1988 Act), which extended the confiscation regime beyond drug trafficking.
+Section 72(5) and (6) of the 1988 Act were in very similar terms to sections 1(5) and (6) of the 1986 Act.
+The 1988 Act was amended by a number of subsequent Acts.
+Those amendments included the addition of section 72A, which provided for the postponement of the confiscation proceedings in very similar terms to the equivalent provisions of the 2002 Act.
+It is of interest to note the following.
+Section 72A(7) provided that, where the court exercised its power of postponement, it might nevertheless proceed to sentence, or otherwise deal with, the defendant in respect of the offence or any of the offences concerned.
+See also section 72A(8)(c) and section 72A(9), which provided that in sentencing, or otherwise dealing with, the defendant during the period of postponement, the court must not impose a fine or other financial penalty on him.
+The Drug Trafficking Act 1994 (the 1994 Act) repealed and replaced the 1986 Act.
+It was limited to drug trafficking offences but was in very similar terms to the 2002 Act.
+The equivalent of section 13(2), (3) and (4) in the 2002 Act was section 2(5) of the 1994 Act, although by section 2(5)(c) it provided that, subject to paragraph (b) (which was the equivalent of section 13(2) and (3)), the court must leave the confiscation order out of account in determining the appropriate sentence or other manner of dealing with the defendant.
+Section 3 provided for postponed determinations in very similar terms to section 15 of the 2002 Act, save that in subsection (7) it gave the court power during the postponement to proceed to sentence, or otherwise deal with the defendant and in subsection (9) it prohibited the court from imposing a fine or other specified financial penalty in sentencing, or otherwise dealing with, the defendant.
+The 2002 Act has replaced both the 1988 Act and the 1994 Act.
+In the Court of Appeal in the instant case the court noted in para 28 that the position when the 2002 Act came into force was that the effect of section 72(6) of the 1988 Act and of section 2(6) of the 1994 Act, which was of course the successor to section 1(6) of the 1986 Act, was that the court was not deprived of its power to make a confiscation order in addition to an absolute or conditional discharge or vice versa.
+In summary, the position when the 2002 Act came into force was that the court had both the duty (or in rare cases power) to make a confiscation order and also had the power to make an order for an absolute or conditional discharge in an appropriate case.
+The Court of Appeal noted that an equivalent provision to section 2(6) of the 1994 Act was included as clause 14(7) of the Bill which led to the 2002 Act but that the clause was removed from the Bill before it was enacted.
+The Court of Appeal plainly thought that it was very unlikely indeed that Parliament intended to change that position, when enacting the 2002 Act.
+It held (or would have held) that section 13(4) was in sufficiently clear terms to make such a provision unnecessary.
+It is of interest to note that, according to the explanatory note to section 13, it reproduces the effect of the existing legislation.
+Conclusions
+I would accept the approach of the Court of Appeal to the position as it was when the 2002 Act came into force.
+However, I am aware that the distinguished commentator, Dr David Thomas QC, has expressed the view in [2010] Crim LR 64 and 790 that, in so far as the argument of the appellant rests upon section 1(6) of the 1986 Act and section 72(6) of the 1988 Act it rests on what he calls an uncertain foundation.
+Fortunately the conclusion which I have reached does not depend upon that foundation, whether uncertain or not.
+It depends upon my view of the true construction of the relevant provisions of the 2002 Act, which I have set out in paras 12 to 22 above.
+I note in passing that Dr Thomas does not express a view on the Court of Appeals opinion that Clarke was wrongly decided.
+For my part, I agree with the Court of Appeal that section 13(4) is in clear terms and that Clarke was wrongly decided.
+In para 77 (quoted at para 26 above) the court in Clarke referred to the fact that the 2002 Act required the making of a confiscation order but simply said that it did not think that that affected the conclusion they had reached.
+I respectfully disagree.
+The issue was one of construction of the 2002 Act, which in my opinion required the making of a confiscation order whatever order was made as a result of the sentencing exercise.
+In short it is my view that in Clarke the court placed insufficient weight upon the mandatory provisions of the statute.
+On behalf of the appellant some reliance was placed upon the obligations of the United Kingdom under what is known as the Framework Decision, namely the Council Framework Decision of 26 June 2001 On Money Laundering, the Identification, Tracing, Freezing, Seizing and Confiscation of Instrumentalities and the Proceeds of Crime (2001/500/JHA).
+In the light of the conclusion which I have reached above, it is not necessary further to lengthen this judgment by referring to its provisions.
+Punishment
+There was some discussion in the course of the argument as to whether the making of a confiscation order is or is not punishment within the meaning of section 12(1) of the 2000 Act.
+The relevance of the issue is that, if a confiscation order is not punishment, it is not inconsistent with an order for an absolute or conditional discharge, which can only be made if it is inexpedient to inflict punishment, whereas if it is punishment, it is said to be inconsistent with an absolute or conditional discharge.
+The argument that a confiscation order is not punishment is that it is not intended to punish the defendant but to ensure that he disgorges any benefit he has made from crime, at any rate to the extent of his assets.
+On the other hand, the court in Clarke expressed the clear view that such an order is punishment: see in particular paras 65 and 74.
+It noted in para 65 that it has been treated as part of the process of sentencing and that, at least for some purposes, has been held to be a penalty: see eg R v Briggs Price [2009] 1 AC 1026, paras 30, 63, 112, 113, 115 and 134.
+At para 74 the court said: There can be no doubt that confiscation orders constitute punishment.
+The regime under what is now the 2002 Act is aptly described as Draconian.
+The use of the offender's realisable assets to recover any benefit (not merely profit), including benefits from criminal activity unassociated with the index offence with a maximum of ten years' imprisonment in default must constitute punishment.
+Thus, applying these cases, the making of a confiscation order is inconsistent with a finding that it is inexpedient to inflict punishment.
+It seems to me that must be correct.
+However, it is not necessary to reach a final conclusion on that question because section 13(4) of the 2002 Act expressly provides that the confiscation order must be left out of account in deciding the appropriate sentence for the defendant.
+It follows that whether a confiscation order is punishment or not is irrelevant to the question whether or not to make an order for an absolute or conditional discharge.
+Scotland
+The conclusions which I have reached seem to me to receive strong support from the position in Scotland, which is governed by Part 3 of the 2002 Act.
+Section 92 of the 2002 Act is almost identical to section 6, most of which is set out above.
+Section 92, however, provides three conditions rather than two.
+So far as relevant to the question in this appeal, section 92 provides: or (1) The court must act under this section where the following three conditions are satisfied. (2) The first condition is that an accused falls within either of the following paragraphs (a) he is convicted of an offence or offences, whether in solemn or summary proceedings, (b) in the case of summary proceedings in respect of an offence (without proceeding to conviction) an order is made discharging him absolutely. (3) The second condition is that the prosecutor asks the court to act under this section. (4) The third condition is that the court decides to order some disposal in respect of the accused; and an absolute discharge is a disposal for the purpose of this subsection.
+The remaining provisions are identical or almost identical to those in Part 2 relating to England and Wales which are quoted above.
+The significant provisions for present purposes are subsections (2)(b) and (4).
+Subsection (2)(b) provides that the first condition is satisfied in the case of summary proceedings if, without proceeding to a conviction, an order is made discharging the defendant absolutely and subsection (4) provides that the third condition is satisfied if the court decides to order a disposal, an absolute discharge being a disposal for that purpose.
+It is thus plain that, at any rate in the case of Scotland, Parliament expressly contemplated that the court will have a duty to make a confiscation order in circumstances in which it thinks it right to make an order for an absolute discharge, both where there is a conviction and where there is not.
+It seems inconceivable that Parliament intended that in England and Wales the making of an order for an absolute discharge should be a bar to the making of a confiscation order.
+In these circumstances, the position in Scotland seems to me to give some force to the underlying rationale of the construction of the 2002 Act set out in paras 12 to 22 above.
+Postscript
+There was a suggestion that confiscation proceedings after an absolute or conditional discharge were or might be an abuse of process or an infringement of the appellants rights under Article 1 Protocol 1 of the European Convention on Human Rights (A1P1).
+However, the duty of the court to make a confiscation order arises where the defendant has benefited from either general or particular criminal conduct and the court has determined the recoverable amount, which is defined in section 7(1) of the 2002 Act as an amount equal to the defendants benefit from the conduct concerned.
+I do not see how such proceedings could be an abuse of process.
+The present case is not concerned with the determination of the amount of that benefit or with the possible application, for example, of the provisions of A1P1 to that determination.
+A1P1 may have its part to play on issues of proportionality but not in the context of this appeal.
+Disposition
+As stated in para 6 above, the certified question is Does the Crown Court have power to make a confiscation order against a defendant following conviction for an offence if he or she receives an absolute or conditional discharge for that offence? For the reasons I have given, I would answer that question in the affirmative but I would go further.
+I would hold that, where the criteria in section 6 of the 2002 Act are satisfied, subject to subsection (6), the Crown Court has a duty to make a confiscation order against a defendant following conviction for an offence, whether or not he or she receives an absolute or conditional discharge for that offence.
+Where subsection (6) applies, that duty must be treated as a power.
+In all the circumstances I would allow the appeal and restore the confiscation order in the sum of 1,500.
+LORD PHILLIPS
+I am in full agreement with the judgment of Lord Clarke.
+I wish, however, to add a footnote, based on information supplied pursuant to a request from the Court.
+The prosecuting authority responsible for the prosecution of Mr Varma and for the decision to seek a confiscation order was the Revenue and Customs Prosecutions Office (the Customs).
+Where the Customs seize goods that a defendant is seeking to bring into the country without paying duty it would be open to them to confiscate the goods, to prosecute the defendant and to exact the duty payable on them.
+It is, however, their practice, where they prosecute in such circumstances, not to seek to exact payment of the duty but to initiate confiscation proceedings in the amount of the duty payable instead.
+That is what they did in the case of Mr Varma.
+This practice may well be convenient, but I doubt whether it is legitimate.
+Mr Varma pleaded guilty to section 170(2)(a) of the Customs and Excise Management Act 1979, which provides, in so far as material: if any person is, in relation to any goods, in any way knowingly concerned in any fraudulent evasion or attempt at evasion (a) of any duty payable on the goods (my emphasis).
+I consider it questionable whether, in confiscation proceedings, it is legitimate to treat a defendant in the position of Mr Varma as having evaded duty when the only reason that he has done so is that the Customs have chosen not to exact it.
+If I am correct, then it is doubtful whether there was any basis for bringing confiscation proceedings in this case.
+I am aware that I am questioning the assumption that underlay the decision of the House of Lords in R v David Smith [2002] 1 WLR 54, but that aspect of that decision (at least) calls out for review.
+It has not, however, been challenged in this case so the confiscation order made must stand.
+I agree with the judgment delivered by Lord Clarke and with his proposed
+LORD MANCE
+disposal of this appeal.
+As a member of the Court of Appeal with whose judgment the House of Lords disagreed in R v David Smith [2001] UKHL 68, [2002] 1 WLR 54, I have read with a particular interest Lord Phillipss supplementary judgment.
+In it he doubts whether, in confiscation proceedings, it is legitimate to treat a defendant as having evaded duty when the only reason that he has done so is that the Customs have chosen not to exact it.
+That, he suggests, was the assumption underlying the decision in David Smith.
+A problem about this suggestion appears to me to be that the evasion relied upon by the Customs in such cases as David Smith and the present lies in the initial importation of the dutiable goods without declaration or payment of duty, not in any non payment resulting from Customs failure to pursue the defendant.
+On that basis, therefore, the argument resolves itself into a question whether he has benefited from his particular criminal conduct.
+That was the question which the Court of Appeal answered in the favour of, and the House of Lords answered against, the defendant in David Smith.
+As I understand Lord Phillipss current suggestion, it would be impossible to treat any smuggler as having actually evaded any duty payable on the goods, unless and until it was clear that Customs could not pursue him for and presumably actually recover the duty.
+All that could be said until then was that the defendant was, by not declaring the importation and by not paying the duty, attempting to evade the duty payable.
+Without having heard argument on the point, I see some difficulty in thinking that this analysis reflects the ingredients of the criminal offence created by section 170(2) of the Customs and Excise Management Act 1979.
+That does not mean that I do not consider that the proper scope of confiscation orders in the present area merits further consideration at the highest level.
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+On 29 January 1981 Mr Jivraj and Mr Hashwani entered into a joint venture agreement (the JVA), containing an arbitration clause which provided that, in the event of a dispute between them which they were unable to resolve, that dispute should be resolved by arbitration before three arbitrators, each of whom should be a respected member of the Ismaili community, of which they were both members.
+The principal question in this appeal is whether that arbitration agreement became void with effect from 2 December 2003 under the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660) (the Regulations) on the ground that it constituted an unlawful arrangement to discriminate on grounds of religion when choosing between persons offering personal services.
+The JVA
+The JVA was established to make investments in real estate around the world.
+By article 9 it is expressly governed by English law.
+Article 8 provides, so far as material, as follows: (1) If any dispute difference or question shall at any time hereafter arise between the investors with respect to the construction of this agreement or concerning anything herein contained or arising out of this agreement or as to the rights liabilities or duties of the investors or either of them or arising out of (without limitation) any of the businesses or activities of the joint venture herein agreed the same (subject to sub clause 8(5) below) shall be referred to three arbitrators (acting by a majority) one to be appointed by each party and the third arbitrator to be the President of the HH Aga Khan National Council for the United Kingdom for the time being.
+All arbitrators shall be respected members of the Ismaili community and holders of high office within the community. (2) The arbitration shall take place in London and the arbitrators' award shall be final and binding on both parties.
+The Ismaili community comprises Shia Imami Ismaili Muslims.
+It is led by the Aga Khan, whose title is the hereditary title of the Imam of the Ismaili community.
+The disputes
+During the 1980s the joint venture came to comprise substantial business interests, first in Canada and later in the United States, Pakistan and the United Kingdom, with investments in properties, hotels and the oil industry.
+By late 1988 Mr Jivraj and Mr Hashwani had agreed to part company.
+On 30 October 1988 they entered into an agreement under which they appointed a three man conciliation panel (the panel) for the purpose of the division of the joint venture assets.
+Each member of the panel was a respected member of the Ismaili community.
+The panel operated between October 1988 and February 1990 and many of the assets were divided between the parties in accordance with its directions.
+It was however unable to resolve all the issues between the parties.
+The parties then agreed to submit the remaining issues to arbitration or conciliation by a single member of the Ismaili community, namely Mr Zaher Ahamed.
+He issued a determination in December 1993, whereafter he had further exchanges with the parties until 1995, when he declared himself defeated.
+The principal matters which remained in dispute were, on the one hand, a claim by Mr Hashwani that there remained a balance due to him and, on the other hand, a claim by Mr Jivraj that Mr Hashwani had failed to declare certain tax liabilities which left Mr Jivraj with a potential for secondary liability.
+These matters remained in dispute for some years.
+Then, on 31 July 2008, Messrs Zaiwalla & Co, acting on behalf of Mr Hashwani, wrote to Mr Jivraj asserting a claim for US$1,412,494, together with interest, compounded quarterly from 1994, making a total of US$4,403,817.
+The letter gave notice that Mr Hashwani had appointed Sir Anthony Colman as an arbitrator under article 8 of the JVA and that, if Mr Jivraj failed to appoint an arbitrator within seven days, steps would be taken to appoint Sir Anthony as sole arbitrator.
+The letter added that Mr Hashwani did not regard himself as bound by the provision that the arbitrators should be members of the Ismaili community because such a requirement would now amount to religious discrimination which would violate the Human Rights Act 1998 and therefore must be regarded as void.
+It is common ground, on the one hand, that Sir Anthony Colman is not a member of the Ismaili community and, on the other hand, that he is a retired judge of the Commercial Court with substantial experience of the resolution of commercial disputes, both as a judge and as an arbitrator.
+Mr Jivraj's response to the letter was to start proceedings in the Commercial Court seeking a declaration that the appointment of Sir Anthony was invalid because he is not a member of the Ismaili community.
+Mr Hashwani subsequently issued an arbitration claim form seeking an order that Sir Anthony be appointed sole arbitrator pursuant to section 18(2) of the Arbitration Act 1996 (the 1996 Act).
+The application was made on the basis that the requirement that the arbitrators be members of the Ismaili community, although lawful when the agreement was made, had been rendered unlawful and was void because it contravened the Regulations.
+The Regulations
+The Regulations were made in the exercise of powers conferred by the European Communities Act 1972 following the making of the Council Framework Directive 2000/78/EC of 27 November 2000 (OJ 2000 L303, p 16) (the Directive) which, by article 1, was itself made for the purpose of establishing: a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the member states the principle of equal treatment.
+The Regulations (as amended by section 77(2) of the Equality Act 2006) provide, so far as material, as follows: 2 Interpretation (3) In these Regulations references to employer, in their application to a person at any time seeking to employ another, include a person who has no employees at that time; employment means employment under a contract of service or of apprenticeship or a contract personally to do any work, and related expressions shall be construed accordingly ; 3 Discrimination on grounds of religion or belief (1) For the purposes of these Regulations, a person (A) discriminates against another person (B) if on the grounds of the religion or belief of B or of any other person except A (whether or not it is also As religion or belief), A treats B less favourably than he treats or would treat other persons; (a) Applicants and employees 6 (1) It is unlawful for an employer, in relation to employment by him at an establishment in Great Britain, to discriminate against a person in the arrangements he makes for the purpose of (a) determining to whom he should offer employment; in the terms on which he offers that person (b) employment; or (c) by refusing to offer, or deliberately not offering, him employment. 7 Exception for genuine occupational requirement In relation to discrimination falling within regulation 3 (1) (discrimination on grounds of religion or belief) (a) regulation 6(1)(a) or (c) does not apply to any employment where paragraph (2) or (3) applies. (2) This paragraph applies where, having regard to the nature of the employment or the context in which it is carried out (a) being of a particular religion or belief is a genuine and determining occupational requirement; it is proportionate to apply that requirement in the (b) particular case; and (c) either (i) the person to whom that requirement is applied does not meet it, or (ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it, and this paragraph applies whether or not the employer has an ethos based on religion or belief. (3) This paragraph applies where an employer has an ethos based on religion or belief and, having regard to that ethos and to the nature of the employment or the context in which it is carried out (a) being of a particular religion or belief is a genuine occupational requirement for the job; it is proportionate to apply that requirement in the (b) particular case; and (c) either (i) the person to whom that requirement is applied does not meet it, or (ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it."
+The Directive
+It is common ground that the Regulations must, so far as possible, be construed to give effect to the objective of the Directive which they were designed to implement: see eg Marleasing SA v La Comercial Internacional de Alimentacion SA (Case C 106/89) [1990] ECR I 4135 and Litster v Forth Dry Dock & Engineering Co Ltd [1990] 1 AC 546.
+It is also common ground that, although the arbitration agreement was on any view lawful when it was made, it became subject to the provisions of the Regulations, insofar as they applied to it.
+The Directive provides, so far as material, as follows: Article 1 Purpose The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the member states the principle of equal treatment.
+Article 2 Concept of discrimination (1) For the purposes of this Directive, the 'principle of equal treatment' shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in article 1.
+Article 3 Scope (1) Within the limits of the areas of competence conferred on the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to (a) conditions for access to employment, to self employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion; (b) access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience; (c) employment and working conditions, including dismissals and pay; (d) membership of, and involvement in, an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations.
+As Moore Bick LJ, giving the judgment of the Court of Appeal, observed at para 8, the Directive is concerned with discrimination on the grounds of religion or belief, disability, age and sexual orientation.
+It is therefore much wider in its scope than the Regulations, which are concerned only with discrimination on the grounds of religion or belief.
+The explanation lies in the fact that the United Kingdom had already introduced legislation dealing with discrimination on most of the other grounds covered by the Directive in connection with employment and occupation.
+Discrimination on the grounds of sex was rendered unlawful by the Sex Discrimination Act 1975 (the SDA 1975), discrimination on the grounds of race by the Race Relations Acts 1968 and 1976, discrimination on the grounds of disability by the Disability Discrimination Act 1995.
+Legislation dealing with discrimination on the grounds of age, sexual orientation and religion or belief was still required to ensure compliance with the Directive.
+The Regulations deal with discrimination on the grounds of religion or belief.
+The Employment Equality (Sexual Orientation) Regulations 2003 (SI 2003/1661) provided for discrimination on the grounds of sexual orientation, and discrimination on the grounds of age was subsequently covered by the Employment Equality (Age) Regulations 2006.
+Again as observed by the Court of Appeal (at para 9), the form of the Regulations follows closely that of the earlier legislation, in particular in defining "employment" as including a contract personally to do work of any kind.
+Moreover, the language of regulation 6 is identical to, or differs in no significant respect from, that used in the other legislation dealing with discrimination.
+It follows that the Regulations must be understood as complementing all the other legislation prohibiting discrimination.
+This uniformity of the law relating to the areas in which discrimination is forbidden has now been reinforced by the Equality Act 2010 (the EA), which applies to all of the cases protected by the earlier legislation.
+The EA is, among other things, an Act to reform and harmonise equality law and restate the greater part of the enactments relating to discrimination.
+The Regulations were amongst those enactments restated by the EA.
+They were revoked by section 211 and Schedule 27, Part 2.
+The revocation took effect on 1 October 2010.
+The current law is therefore as stated in the Act rather than the Regulations.
+It was not however suggested in the course of the argument that any of the issues in this appeal is affected by the revocation of the Regulations.
+First instance
+Both parties applications were determined by David Steel J (the judge) on 26 June 2009: see [2009] EWHC 1364 (Comm), [2010] 1 All ER 302.
+In the meantime on 11 March 2009, which was before the applications were heard, the solicitors for Mr Jivraj wrote an open letter to the solicitors for Mr Hashwani offering him the option of pursuing his claim in the High Court on the basis that Mr Jivraj would not seek a stay on the basis of the arbitration clause.
+Mr Hashwani did not accept the offer.
+It was submitted before the judge on behalf of Mr Hashwani that the term requiring arbitrators to be members of the Ismaili community was invalid by reason of one or more of the following: the Regulations, the Human Rights Act 1998 (the HRA), or public policy at common law.
+The judge held (i) that the term did not constitute unlawful discrimination on any of those bases and, specifically, that arbitrators were not employed within the meaning of the Regulations; (ii) that if, nonetheless, appointment of arbitrators fell within the scope of the Regulations, it was demonstrated that one of the more significant characteristics of the Ismaili sect was an enthusiasm for dispute resolution within the Ismaili community, that this was an ethos based on religion within the meaning of the Regulations and that the requirement for the arbitrators to be members of the Ismaili community constituted a genuine occupational requirement which it was proportionate to apply within regulation 7(3); and (iii) that, if that was also wrong, the requirement was not severable from the arbitration provision as a whole, so that the whole arbitration clause would be void.
+The judge ordered Mr Hashwani to pay Mr Jivrajs costs and refused Mr Hashwanis application for permission to appeal.
+The Court of Appeal
+On 7 October 2009 Sir Richard Buxton granted permission to appeal limited to the issues on the Regulations and on severance.
+Permission was refused on the HRA and public policy issues.
+The issues in the Court of Appeal were therefore these: i) Are arbitrators persons who are under a contract to do work so as to fall within the Regulations and, if so, do parties who make an arbitration agreement specifying religious qualifications for eligible arbitrators thereby make an arrangement for the purpose of determining to whom they should offer employment or do they agree to offer, or deliberately not to offer, employment within the meaning of the Regulations? If so, in the circumstances, did the requirement for all the arbitrators to be members of the Ismaili community constitute a genuine occupational requirement (GOR) which it was proportionate to apply within regulation 7(3)? If not, did the whole arbitration agreement fail or was only the discriminatory provision void? iii) ii)
+The unanimous judgment of the Court of Appeal, which comprised Moore Bick and Aikens LJJ and Sir Richard Buxton, was handed down on 22 June 2010: see [2010] EWCA Civ 712, [2010] ICR 1435.
+The Court of Appeal reached a different conclusion from the judge on the principal points.
+It held that the appointment of an arbitrator involved a contract for the provision of services which constituted a contract personally to do any work, and therefore satisfied the definition of employment in regulation 2(3).
+It followed that the appointor was an employer within the meaning of regulation 6(1) and that the restriction of eligibility for appointment as an arbitrator to members of the Ismaili community constituted unlawful discrimination on religious grounds, both in making arrangements for the purpose of determining to whom he should offer employment contrary to regulation 6(1)(a), and by refusing to offer, or deliberately not offering employment contrary to regulation 6(1)(c).
+The Court of Appeal further held that being a member of the Ismaili community was not a genuine occupational requirement for the job within the meaning of the exception in regulation 7(3).
+It is submitted on behalf of Mr Jivraj that both those conclusions were wrong.
+Finally the Court of Appeal held that, although there would be no difficulty in operating the agreement if the offending requirement was struck out, so doing would render the agreement substantially different from that originally intended, the term was void in its entirety under paragraph 1(1) of Schedule 4 to the Regulations and Mr Hashwanis nomination of an arbitrator was invalid.
+It is submitted on behalf of Mr Hashwani that both the judge and the Court of Appeal were wrong on this point, which I will call the severance issue.
+A further point arises out of the Court of Appeals order on costs if its judgment is upheld on each of the above points.
+Employment
+The reasoning of the Court of Appeal was straightforward: see paras 15 17.
+In short the Court of Appeal drew attention to the wide terms of articles 1 and 3 of the Directive.
+In particular it noted at para 15 that the recitals to the Directive and the structure and language of article 3(1) as a whole indicate that it is concerned with discrimination affecting access to the means of economic activity, whether through employment, self employment or some other basis of occupation, access to vocational guidance and training (which can be expected to provide a means of access to economic activity), conditions of employment (which affect those who have gained access to a means of economic activity) and membership of bodies whose purpose is to affect conditions of recruitment or employment or to regulate access to a particular form of economic activity, such as professional bodies that directly or indirectly control access to the profession or a significant means of obtaining work.
+The Court of Appeal then said at para 16: The paradigm case of appointing an arbitrator involves obtaining the services of a particular person to determine a dispute in accordance with the agreement between the parties and the rules of law, including those to be found in the legislation governing arbitration.
+In that respect it is no different from instructing a solicitor to deal with a particular piece of legal business, such as drafting a will, or consulting a doctor about a particular ailment or an accountant about a tax return.
+Since an arbitrator (or any professional person) contracts to do work personally, the provision of his services falls within the definition of employment, and it follows that his appointor must be an employer within the meaning of regulation 6(1)
+In paras 16 and 17 it placed reliance on three cases.
+It relied upon von Hoffmann v Finanzamt Trier (Case C 145/96) [1997] All ER (EC) 852 as showing that arbitrators had been treated as providing services for VAT purposes.
+It also referred to domestic regulations relating to goods and services.
+It further derived support from Kelly v Northern Ireland Housing Executive [1999] 1 AC 428 and from Percy v Board of National Mission of the Church of Scotland [2005] UKHL 73, [2006] 2 AC 28.
+It recognised that those cases were addressing slightly different points but concluded that they illustrate the width of the expression a contract personally to do any work in the various discrimination statutes.
+It concluded thus in para 17: They confirm our view that the expression is apt to encompass the position of a person who provides services as an arbitrator, and why we think the judge was wrong to hold that the nature of the arbitrator's function takes his appointment outside the scope of the 2003 Regulations.
+Moreover, a contract of that kind, once made, is a contract of employment within the meaning of the 2003 Regulations.
+It follows, therefore, that for the purposes of the 2003 Regulations a person who has entered into a contract under which he is to obtain such services is an employer and the person engaged to provide them is an employee.
+The critical question under this head is whether the Court of Appeal was correct to form a different view from the judge on this point.
+In my opinion it was not.
+As the Court of Appeal correctly observed at para 15, the meaning of article 3 of the Directive has not been considered by the Court of Justice, and is to be interpreted in the light of the recitals and given its natural meaning consistent with the EC Treaty and the existing case law of the court.
+It is common ground, at any rate in this class of case, that there is a contract between the parties and the arbitrator or arbitrators appointed under a contract and that his or their services are rendered pursuant to that contract.
+It is not suggested that such a contract provides for employment under a contract of service or of apprenticeship.
+The question is whether it provides for employment under a contract personally to do any work.
+There is in my opinion some significance in the fact that the definition does not simply refer to a contract to do work but to employment under such a contract.
+I would answer the question in the negative on the ground that the role of an arbitrator is not naturally described as employment under a contract personally to do work.
+That is because his role is not naturally described as one of employment at all.
+I appreciate that there is an element of circularity in that approach but the definition is of employment and this approach is consistent with the decided cases.
+Given the provenance of the Regulations, it is appropriate to consider first the decisions of the Court of Justice.
+The most important of these is perhaps Allonby v Accrington and Rossendale College (Case C 256/01) [2004] ICR 1328, where the Court of Justice followed the principles laid down in Lawrie Blum v Land Baden Wurttemberg (Case C 66/85) [1987] ICR 483 and in Kurz v Land Baden Wurttemberg (Case C 188/00) [2002] ECR I 10691.
+In Lawrie Blum, which was concerned with the free movement of workers under what was then article 48 of the Treaty, Advocate General Lenz said at para III 2(b) of his opinion that the term worker covers any employed person who is not self employed.
+The court said at para 17: That concept [ie of worker] must be defined with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned.
+The essential feature of an employment relationship, however, is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.
+In Kurz the court said at para 32 that it was settled case law that the concept of worker has a specific Community meaning and must not be interpreted narrowly.
+The court then repeated the essential feature of the relationship identified in the above passage from Lawrie Blum.
+In Allonby the court addressed an equal pay claim by a college lecturer who had been dismissed by the college and then re engaged, ostensibly as a self employed sub contractor supplied by an agency.
+For the purposes of article 141(1) of the EC Treaty, the court drew a clear distinction between workers and independent suppliers of services.
+It discussed the concept of worker within the meaning of article 141(1) between paras 62 and 72, which included the following: 62.
+The criterion on which article 141(1) EC is based is the comparability of the work done by workers of each sex: see, to that effect, Defrenne v Sabena (No 2) (Case 149/77) [1978] ECR 1365, 1377, para 22.
+Accordingly, for the purpose of the comparison provided for by article 141(1) EC, only women and men who are workers within the meaning of that article can be taken into consideration. 63.
+In that connection, it must be pointed out that there is no single definition of worker in Community law: it varies according to the area in which the definition is to be applied: Martinez Sala v Freistaat Bayern (Case C 85/96) [1998] ECRI 2691, 2719, para 31. 64.
+The term worker' within the meaning of article 141(1) EC is not expressly defined in the EC Treaty.
+It is therefore necessary, in order to determine its meaning, to apply the generally recognised principles of interpretation, having regard to its context and to the objectives of the Treaty. 65.
+According to article 2 EC, the Community is to have as its task to promote, among other things, equality between men and women.
+Article 141(1) EC constitutes a specific expression of the principle of equality for men and women, which forms part of the fundamental principles protected by the Community legal order: see, to that effect, Deutsche Post AG v Sievers (Cases C 270 and 271/97) [2000] ECR I 929, 952, para 57.
+As the court held in Defrenne v Sabena (Case 43/75) [1976] ICR 547, 566, para 12, the principle of equal pay forms part of the foundations of the Community. 66.
+Accordingly, the term worker used in article 141(1) EC cannot be defined by reference to the legislation of the member states but has a Community meaning.
+Moreover, it cannot be interpreted restrictively. 67.
+For the purposes of that provision, there must be considered as a worker a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration see, in relation to free movement of workers, in particular Lawrie Blum para 17, and Martinez Sala, para 32. 68.
+Pursuant to the first paragraph of article 141(2) EC, for the purpose of that article, pay means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.
+It is clear from that definition that the authors of the Treaty did not intend that the term worker, within the meaning of article 141(1) EC, should include independent providers of services who are not in a relationship of subordination with the person who receives the services (see also, in the context of free movement of workers, Meeusen v Hoofddirectie van de Informatie Beheer Groep (Case C 337/97) [1999] ECR I 3289, 3311, para 15). 69.
+The question whether such a relationship exists must be answered in each particular case having regard to all the factors and circumstances by which the relationship between the parties is characterised. 70.
+Provided that a person is a worker within the meaning of article 141(1) EC, the nature of his legal relationship with the other party to the employment relationship is of no consequence in regard to the application of that article: . 71.
+The formal classification of a self employed person under national law does not exclude the possibility that a person must be classified as a worker within the meaning of article 141(1) EC if his independence is merely notional, thereby disguising an employment relationship within the meaning of that article.
+On the basis of those materials I would accept Mr Davies submission that the Court of Justice draws a clear distinction between those who are, in substance, employed and those who are independent providers of services who are not in a relationship of subordination with the person who receives the services.
+I see no reason why the same distinction should not be drawn for the purposes of the Regulations between those who are employed and those who are not notionally but genuinely self employed.
+In the light of Allonby, there can be no doubt that that would be the correct approach to the near identical definition in section 1(6) of the Equal Pay Act 1970 and must remain the correct approach to the definition of employment in section 83(2) of the EA, which provides, so far as relevant: Employment means (a) employment under a contract of employment, a contract of apprenticeship or a contract personally to do work; That definition is almost identical to the definition in regulation 2(3) of the Regulations and, since it applies to equal pay issues by virtue of sections 83(4), 80(2) and 64 of the EA, it must equally apply to the Regulations.
+In my opinion there is nothing in the domestic authorities which requires the court to come to any different conclusion.
+The problem with some of them is that they do not refer to the jurisprudence of the Court of Justice.
+However, the most recent decision of the House of Lords does.
+In Percy v Board of National Mission of the Church of Scotland [2006] 2 AC 28 the House of Lords considered a sex discrimination claim brought by a woman who was a minister of the Church of Scotland.
+The issue was whether she was employed within the meaning of section 82(1) of the SDA 1975.
+The House held that she was.
+Lord Hoffmann dissented on the basis that she was the holder of an office but had no doubt (at para 66) that, if the arrangement had been contractual, it would plainly have been a contract of service.
+Lord Hoffmann said at para 73 that the term workers is a term of art in Community law which was defined by the Court of Justice in the passage from para 17 of Lawrie Blum quoted at para 24 above.
+Lord Hope of Craighead said much the same at para 126, where he also noted that the same approach was taken in Allonby.
+Baroness Hale of Richmond referred at para 141 to para A[4] of Harvey on Industrial Relations and Employment Law, which stated that: the distinction is between those who work for themselves and those who work for others, regardless of the nature of the contract under which they are employed.
+She then referred at para 143 to the decision of the Court of Appeal in Northern Ireland in Perceval Price v Department of Economic Development [2000] IRLR 380, where it was held that three full time judicial office holders, namely a full time chairman of industrial tribunals, a full time chairman of social security appeal tribunals and a social security commissioner were workers for the purposes of almost identical provisions.
+In para 145, after quoting the definition of an employment relationship in Lawrie Blum, Baroness Hale noted that, in giving the judgment of the court in Perceval Price, Sir Robert Carswell LCJ said that the objective of the relevant EC legislation was to give protection against inequality and discrimination to those who might be vulnerable to exploitation.
+He also said that the concept of a worker should be construed purposively by reference to this objective.
+Baroness Hale then quoted this extract from the judgment of Sir Robert Carswell: All judges, at whatever level, share certain common characteristics.
+They all must enjoy independence of decision without direction from any source, which the respondents quite rightly defended as an essential part of their work.
+They all need some organisation of their sittings, whether it be prescribed by the president of the industrial tribunals or the court service, or more loosely arranged in collegiate fashion between the judges of a particular court.
+They are all expected to work during defined times and periods, whether they be rigidly laid down or managed by the judges themselves with a greater degree of flexibility.
+They are not free agents to work as and when they choose, as are self employed persons.
+Their office accordingly partakes of some of the characteristics of employment .
+At para 146 Baroness Hale continued: I have quoted those words at length because they illustrate how the essential distinction is, as Harvey says, between the employed and the self employed.
+The fact that the worker has very considerable freedom and independence in how she performs the duties of her office does not take her outside the definition.
+Judges are servants of the law, in the sense that the law governs all that they do and decide, just as clergy are servants of God, in the sense that God's word, as interpreted in the doctrines of their faith, governs all that they practise, preach and teach.
+This does not mean that they cannot be workers or in the employment of those who decide how their ministry should be put to the service of the Church.
+Some consideration was recently given to the position of part time judges by this court in OBrien v Ministry of Justice (Note) [2010] UKSC 34, [2010] 4 All ER 62 where the court considered Percy in some detail in a judgment of the court given by Lord Walker.
+At para 25 it referred to the same passage in Lawrie Blum as having laid down the relevant principle and at para 26 it referred to the speech of Baroness Hale and approved the passage quoted above from the judgment of Sir Robert Carswell in Perceval Price.
+As I read Percy, it sought to apply the principles identified by the Court of Justice, as indeed did this court in OBrien [2010] 4 All ER 62.
+The essential questions in each case are therefore those identified in paras 67 and 68 of Allonby [2004] ICR 1328, namely whether, on the one hand, the person concerned performs services for and under the direction of another person in return for which he or she receives remuneration or, on the other hand, he or she is an independent provider of services who is not in a relationship of subordination with the person who receives the services.
+Those are broad questions which depend upon the circumstances of the particular case.
+They depend upon a detailed consideration of the relationship between the parties.
+As I see it, that is what Baroness Hale meant when she said that the essential difference is between the employed and the self employed.
+The answer will depend upon an analysis of the substance of the matter having regard to all the circumstances of the case.
+I would not accept the Court of Appeals analysis (at para 21) of Baroness Hales speech in this regard.
+There have been a number of domestic cases which say that the question is whether the dominant purpose of the contract is the execution of personal work or labour: see eg Quinnen v Hovells [1984] ICR 525, Mirror Group Newspapers Ltd v Gunning [1986] 1 WLR 546, especially per Oliver LJ at 551H and Balcombe LJ at 556H; Kelly v Northern Ireland Housing Executive [1999] 1 AC 428 and Percy [2006] 2 AC 28 per Lord Hope at para 113, where he referred to two other cases in the Court of Appeal, namely Patterson v Legal Services Commission [2004] ICR 312 and Mingeley v Pennock (trading as Amber Cars) [2004] ICR 727.
+Mr Michael Brindle QC also referred on behalf of the respondent to two earlier cases which focus on the question whether a contract is one personally to execute any work or labour: see Tanna v Post Office [1981] ICR 374 and Hugh Jones v St Johns College, Cambridge [1979] ICR 848.
+However, none of these cases considered the approach in the decisions of the Court of Justice referred to above.
+In particular, the cases did not focus on the fact that the employment must be employment under a contract of employment, a contract of apprenticeship or a contract personally to do work. (My emphasis).
+Given the importance of the EC perspective in construing the legislation, including the Regulations, the cases must now be read in the light of those decisions.
+They show that it is not sufficient to ask simply whether the contract was a contract personally to do work.
+They also show that dominant purpose is not the test, or at any rate not the sole test.
+That is not to say that the question of purpose is irrelevant but the focus is on the contract and relationship between the parties rather than exclusively on purpose.
+Elias J, sitting as President of the Employment Appeal Tribunal, recognised some of the difficulties in James v Redcats (Brands) Ltd [2007] ICR 1006.
+He discussed the relevance of dominant purpose in this context by reference to the cases at paras 53 to 68.
+At para 59, after quoting from the judgment of Balcombe LJ in Gunning [1986] 1 WLR 546, he said that the dominant purpose test is really an attempt to identify the essential nature of the contract.
+In the context of the case he was considering he posed the question whether it was in essence to be located in the field of dependent work relationships or whether it was in essence a contract between two independent business undertakings.
+At paras 67 and 68, after referring to a number of cases and observing at para 65 that the description of the test as one of identifying the dominant purpose was perhaps not an altogether happy one, he said this: 67.
+An alternative way of putting it may be to say that the courts are seeking to discover whether the obligation for personal service is the dominant feature of the contractual arrangement or not.
+If it is, then the contract lies in the employment field; if it is not if, for example, the dominant feature of the contract is a particular outcome or objective and the obligation to provide personal service is an incidental or secondary consideration, it will lie in the business field. 68.
+This is not to suggest that a tribunal will be in error in failing specifically to apply the dominant purpose or indeed any other test.
+The appropriate classification will in every case depend upon a careful analysis of all the elements of the relationship, as Mr Recorder Underhill QC pointed out in Byrne Bros (Formwork) Ltd v Baird [2002] ICR 667.
+It is a fact sensitive issue, and there is no shortcut to a considered assessment of all relevant factors.
+However, in some cases the application of the dominant purpose test may help tribunals to decide which side of the boundary a particular case lies.
+It is noteworthy that the European cases were not cited in many of the cases, including that before Elias J.
+In the light of the European cases, dominant purpose cannot be the sole test, although it may well be relevant in arriving at the correct conclusion on the facts of a particular case.
+After all, if the dominant purpose of the contract is the execution of personal work, it seems likely that the relationship will be, in the words of Allonby [2004] ICR 1328, para 67, a case in which the person concerned performs services for and under the direction of the other party to the contract in return for remuneration as opposed to an independent provider of services who is not in a relationship of subordination with him or it.
+This may not be so however because, although the dominant purpose of the contract may be personal work, it may not be personal work under the direction of the other party to the contract.
+All will depend upon the applications of the principles in Allonby to the circumstances of the particular case.
+If the approach in Allonby is applied to a contract between the parties to an arbitration and the arbitrator (or arbitrators), it is in my opinion plain that the arbitrators role is not one of employment under a contract personally to do work.
+Although an arbitrator may be providing services for the purposes of VAT and he of course receives fees for his work, and although he renders personal services which he cannot delegate, he does not perform those services or earn his fees for and under the direction of the parties as contemplated in para 67 of Allonby.
+He is rather in the category of an independent provider of services who is not in a relationship of subordination with the parties who receive his services, as described in para 68.
+The arbitrator is in critical respects independent of the parties.
+His functions and duties require him to rise above the partisan interests of the parties and not to act in, or so as to further, the particular interests of either party.
+As the International Chamber of Commerce (the ICC) puts it, he must determine how to resolve their competing interests.
+He is in no sense in a position of subordination to the parties; rather the contrary.
+He is in effect a quasi judicial adjudicator: K/S Norjarl A/S v Hyundai Heavy Industries Co Ltd [1992] QB 863, 885.
+In England his role is spelled out in the 1996 Act.
+By section 33, he has a duty to act fairly and impartially as between the parties and to adopt procedures suitable to the circumstances of the particular case so as to provide a fair means of determination of the issues between the parties.
+Section 34 provides that, subject to the right of the parties to agree any matter, it is for the arbitrator to decide all procedural matters.
+Examples of the width of those powers can be seen in the particular examples in section 34(2).
+Section 40 provides that the parties shall do all things necessary for the proper and expeditious conduct of the arbitration, which includes complying with any order of the arbitrator, whether procedural or otherwise.
+Once an arbitrator has been appointed, at any rate in the absence of agreement between them, the parties effectively have no control over him.
+Unless the parties agree, an arbitrator may only be removed in exceptional circumstances: see sections 23 and 24.
+The court was referred to many other statutory provisions in other parts of the world and indeed many other international codes, including the UNCITRAL (United Nations Commission on International Trade Law) Model Law on International Commercial Arbitration 1985, the ICC Rules and the London Court of International Arbitration (the LCIA) Rules to similar effect.
+The Regulations themselves include provisions which would be wholly inappropriate as between the parties and the arbitrator or arbitrators.
+For example, regulation 22(1) provides: Anything done by a person in the course of his employment shall be treated for the purposes of these Regulations as done by his employer as well as by him, whether or not it was done with the employers knowledge or approval.
+It is evident that such a provision could not apply to an arbitrator.
+In this regard an arbitrator is in a very different position from a judge.
+The precise status of a judge was left open by this court in OBrien [2010] 4 All ER 62, in which the court referred particular questions to the Court of Justice: see para 41.
+However, as Sir Robert Carswell said in Perceval Price [2000] IRLR 380 and Lord Walker said in OBrien (at para 27), judges, including both recorders and all judges at every level are subject to terms of service of various kinds.
+As Sir Robert put it, although judges must enjoy independence of decision without direction from any source, they are in other respects not free agents to work as and when they choose, as are self employed persons.
+In both those cases the court was considering the relationship between the relevant department of state and the judges concerned.
+It was not considering the relationship between the judges and the litigants who appear before them.
+Here, by contrast, the court is considering the relationship between the parties to the arbitration on the one hand and the arbitrator or arbitrators on the other.
+As I see it, there is no basis upon which it could properly be held that the arbitrators agreed to work under the direction of the parties as contemplated in para 67 of Allonby [2004] ICR 1328.
+Further, in so far as dominant purpose is relevant, I would hold that the dominant purpose of appointing an arbitrator or arbitrators is the impartial resolution of the dispute between the parties in accordance with the terms of the agreement and, although the contract between the parties and the arbitrators would be a contract for the provision of personal services, they were not personal services under the direction of the parties.
+In reaching this conclusion it is not necessary to speculate upon what the position might be in other factual contexts.
+It was submitted that the effect of the decision of the Court of Appeal is that a customer who engages a person on a one off contract as, say, a plumber, would be subject to the whole gamut of discrimination legislation.
+It would indeed be surprising if that were the case, especially given the fact that the travaux prparatoires contained no such suggestion: see the impact assessment in the Commissions Proposal for the Directive 1999/0225 (CNS), Brussels 1999, which was concerned solely with the position of enterprises of various types.
+There was no consideration of the effect on individual choice by customers.
+See also a memorandum from the Commissions Director General for Employment and Social Affairs to the EU Committee of the House of Lords dated 9 February 2000 to much the same effect.
+This is not to say that the Regulations may not apply in the case of the plumber, solicitor, accountant or doctor referred to by the Court of Appeal in para 16.
+As already stated, all will depend upon the application of the principles in Allonby to the particular case.
+As I see it, the problem with the approach adopted by the Court of Appeal is that it focuses only on the question whether there is a contract to do work personally, whereas it is necessary to ask the more nuanced questions identified in Allonby.
+In para 19 the Court of Appeal relied in support of its more general approach upon the opinion of Advocate General Maduro in Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV (Case C 54/07) [2008] ICR 1390.
+It said this in paras 19 and 20: 19.
+That the choice of a solicitor, plumber or arbitrator, whether on religious, racial or any other grounds, should fall foul of regulation 6(1) of the 2003 Regulations, even if made entirely privately, may strike some people as surprising.
+However, in [the Firma Feryn case] Advocate General Maduro expressed the opinion, at para 14, that the Directive must be understood in the framework of a wider policy to foster conditions for a socially inclusive labour market and to ensure the development of democratic and tolerant societies which allow the participation of all persons irrespective of racial or ethnic origin.
+That case arose out of a statement by a company that supplied and fitted up and over garage doors that it would not employ immigrants as fitters because its customers were unwilling to have them in their homes.
+One can well see why a public statement of that kind might be regarded as discriminatory: it was liable to deter potential applicants for employment and thereby militate against a socially inclusive labour market.
+The court itself did not expressly adopt the Advocate General's expression of opinion; rather it confined itself to holding, at para 25, that a general statement of the kind under consideration constituted direct discrimination because it was likely to deter some potential applicants and thus hinder their access to the labour market.
+None the less, the Advocate General's view of the broad policy objective of the Directive is in our opinion supported by the recitals.
+It is also one which is essentially incompatible with an acceptance of the right to discriminate between any providers of services on the basis of race, sex, religion or any of the other grounds covered by the Directive. 20.
+Mr. Davies sought to meet that broad analysis by saying that the primary concern of the Directive is access to employment and economic activity, not private choices by consumers between those who have already gained access to the market.
+The language of article 3 could be construed in that more limited way, but the expression access to employment, to self employment or to occupation is capable of a broader interpretation consistent with the policy objectives we have described.
+In any event, we are concerned with the language of domestic legislation, which is not restricted by the scope of the Directive and which is underpinned by broadly the same policy considerations as those identified by Advocate General Maduro in the Firma Feryn case, whether it was introduced before or after the publication of the Directive.
+I would not accept that analysis.
+The Firma Feryn case was not relied upon in the course of the oral argument in the Court of Appeal.
+It was referred to in answer to a letter from the Court of Appeal asking questions on the assumption that an engagement to provide services gave rise to an employment relationship under the Regulations.
+The case concerned conventional employment relationships and did not discuss at all the extension of discrimination law to one off contracts for services.
+The Court of Justice held that a racially discriminatory statement by an employer as to its recruitment policy could constitute direct discrimination even if there was no actual victim.
+There was no actual victim because there was no evidence that anyone who might have lost out as a result of the policy had actually applied, or would have applied, for a position with that employer.
+The Advocate General thus expressed his opinion in a case which was squarely concerned with employment and not with the boundary between employment and self employment and in which no reference was made to Lawrie Blum [1987] ICR 483, Kurz [2002] ECR I 10691 or Allonby [2004] ICR 1328.
+Some reliance was placed upon the reference to the conditions for access to employment, to self employment or to occupation, including selection criteria and recruitment conditions in article 3(1)(a) of the Directive.
+In para 20 the Court of Appeal gave a wide construction to that provision, rejecting the submission made by Mr Davies that it related to barriers to entry to trades, professions and occupations.
+It did so on the same footing as before, namely that a wide meaning should be given to the terms of the Directive and, in any event, to the Regulations.
+However, I would accept Mr Davies submission that the expression access to self employment or to occupation means what it says and is concerned with preventing discrimination from qualifying or setting up as a solicitor, plumber, greengrocer or arbitrator.
+It is not concerned with discrimination by a customer who prefers to contract with one of their competitors once they have set up in business.
+That would not be denying them access to self employment or to occupation.
+I see no reason to give a different meaning to the Regulations from that given to the Directive.
+For these reasons I prefer the conclusion of the judge to that of the Court of Appeal.
+I agree with the judge that the Regulations are not applicable to the selection, engagement or appointment of arbitrators.
+It follows that I would hold that no part of clause 8 of the JVA is invalid by reason of the Regulations and would allow the appeal on this ground.
+Genuine occupational requirement
+If the above conclusion is correct, this point does not arise but it was fully argued and I will briefly consider it.
+The question considered by the judge was whether, if regulation 6(1)(a) or (c) would otherwise apply, it is prevented from applying by regulation 7(1) and (3).
+It will be recalled that, by regulation 7(1), regulations 6(1)(a) and (c) do not apply where regulation 7(3) applies and that regulation 7(3) provides: This paragraph applies where an employer has an ethos based on religion or belief and, having regard to that ethos and to the nature of the employment or the context in which it is carried out (a) being of a particular religion or belief is a genuine occupational requirement for the job; (b) it is proportionate to apply that requirement in the particular case; and (c) either (i) the person to whom that requirement is applied does not meet it, or (ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it.
+Those provisions were made in accordance with the exceptions in relation to occupational requirements made by article 4 of the Directive, which provides: 1.
+Notwithstanding article 2(1) and (2), member states may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. 2.
+Member states may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a persons religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a persons religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisations ethos.
+This difference of treatment shall be implemented taking account of members states constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground.
+It is common ground that, as the judge said at para 40, a rigorous and strict approach must be adopted to the question whether the particular exception applies: Stadt Halle Thermische Restabfall und Energieverwertungsanlage TREA Leuna (Case C 26/03) [2005] ECR I 1 and Marleasing [1990] ECR I 4135.
+v Arbeitgemeinschaft
+Although some reliance was placed in the course of argument on regulation 7(2), I shall focus first on paragraph (3).
+Since 1 October 2010 the provisions of regulation 7 have been replaced by those of Schedule 9 of the EA.
+Regulation 7(3) has been replaced by paragraph (3) of that Schedule, which provides: A person (A) with an ethos based on religion or belief does not contravene a provision mentioned in paragraph 1(2) by applying in relation to work a requirement to be of a particular religion or belief if A shows that, having regard to that ethos and the nature or context of the work (a) it is an occupational requirement, the application of the requirement is a proportionate (b) means of achieving a legitimate aim, and the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).
+It was not suggested that there is any significant difference between that paragraph and regulation 7(3).
+There are four relevant requirements under regulation 7(3).
+The issue between the parties centres upon whether the second requirement is satisfied.
+The requirements are (1) that the employer should have an ethos based on religion or belief; (2) that, having regard to that ethos and to the nature of the employment or the context in which it is carried out, being of a particular religion or belief is a genuine requirement for the job; (3) that, having regard to that ethos and to the nature of the employment or the context in which it is carried out, it is proportionate to apply that requirement on the facts; and (4) that the person to whom the requirement is applied, who here must be Sir Anthony Colman, does not meet the requirement.
+As to (1) it is not (and could not be) suggested here that Mr Jivraj and Mr Hashwani did not have such an ethos.
+As to (3), it is not in dispute that, if requirement (2) is satisfied, so that being an Ismaili is a genuine occupational requirement, it is or would be proportionate to apply it.
+As to (4), it is plain that Sir Anthony Colman does not meet the requirement in the JVA that the arbitrators should be members of the Ismaili community.
+The essential issue between the parties is whether requirement (2) is satisfied.
+The question is therefore whether, having regard to the Ismaili ethos and to the nature of the employment or the context in which it is carried out, being of the Ismaili religion or belief is a genuine requirement for the job.
+The judge held that this requirement was satisfied whereas the Court of Appeal held that it was not.
+Our attention was drawn on behalf of Mr Jivraj to what is said to be an important difference between paragraphs (2) and (3) of regulation 7.
+Paragraph (2) is concerned with the case where the employer does not have a particular ethos based on religion or belief but wishes to recruit a worker who does have such an ethos.
+In that event, for the exception to apply, being of the particular ethos or belief must be a genuine and determining occupational requirement.
+By contrast, where (as here) the employer has an ethos based on religion or belief, it is sufficient under paragraph (3) that being of a particular religion or belief is a genuine occupational requirement for the job.
+Mr Davies submits that the difference between the two cases is this.
+In the first case the question is whether being of a particular religion or belief is a genuine and determining occupational requirement.
+That is to say it must be an essential requirement for the job.
+Whether it is or not is an objective question which the court can readily decide.
+In the second case, on the other hand, the question for the court is subjective, namely whether it is a genuine requirement for the job in the eyes of the employer or employers.
+This, Mr Davies suggests, reflects the sensible principle that it is not for the court to sit in judgment over matters of religion or belief.
+By contrast, Mr Brindle disputes the idea that the test is entirely subjective.
+Regulation 7(3) requires that being of a particular religion or belief is not only genuine but also, as paragraph 2 of article 4 of the Directive shows, legitimate and justified.
+It follows that it is not sufficient that the employer has a genuine belief that the particular religion or belief is required.
+The requirement must also be legitimate and justified.
+It would be remarkable, in his submission, if the justification could be found in the personal opinions of the prima facie discriminator.
+I agree with Mr Davies that it is not for the court to sit in judgment on matters of religion or belief.
+However, I also agree with Mr Brindle that the test for justifying prima facie discrimination cannot be entirely subjective.
+This is because the Regulations must be construed consistently with the Directive.
+It seems to me to be reasonably clear that paragraph 1 of article 4 of the Directive is the source of paragraph (2) of regulation 7 because they both refer to a genuine and determining occupational requirement.
+In these circumstances paragraph 2 must be the source of paragraph (3) of the regulation, with the result that the expression genuine occupational requirement must (either alone or together with proportionality in requirement (3)) have been intended to reflect the expression genuine, legitimate and justified occupational requirement in paragraph 2 of article 4 of the Directive.
+If the legitimacy or justification of a requirement were assessed purely by reference to the subjective view of the employer, they would add nothing to the stipulation that a requirement be genuine.
+In my view, whether or not a particular religion or belief is a legitimate and justified requirement of an occupation is an objective question for the court.
+This is not however as strict a test as that applied under regulation 7(2), namely that a particular religion or belief is an essential requirement for the job.
+As I see it, the question is simply whether in all the circumstances of the case the requirement that the arbitrators should be respected members of the Ismaili community was, not only genuine, but legitimate and justified.
+I do not agree with Mr Brindle that the requirement that arbitrators be Ismailis cannot be objectively justified.
+His submission that an English law dispute in London under English curial law does not require an Ismaili arbitrator takes a very narrow view of the function of arbitration proceedings.
+This characterisation reduces arbitration to no more than the application of a given national law to a dispute.
+One of the distinguishing features of arbitration that sets it apart from proceedings in national courts is the breadth of discretion left to the parties and the arbitrator to structure the process for resolution of the dispute.
+This is reflected in section 1 of the 1996 Act which provides that: the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest.
+The stipulation that an arbitrator be of a particular religion or belief can be relevant to this aspect of arbitration.
+As the ICC puts in its written argument: The raison dtre of arbitration is that it provides for final and binding dispute resolution by a tribunal with a procedure that is acceptable to all parties, in circumstances where other fora (in particular national courts) are deemed inappropriate (eg because neither party will submit to the courts or their counterpart; or because the available courts are considered insufficiently expert for the particular dispute, or insufficiently sensitive to the parties positions, culture, or perspectives).
+Under section 34 of the 1996 Act (referred to above) the arbitrators have complete power over all procedural and evidential matters, including how far the proceedings should be oral or in writing, whether or not to apply the strict rules of evidence, whether the proceedings should be wholly or partly adversarial or whether and to what extent they should make their own inquiries.
+They are the sole judges of the evidence, including the assessment of the probabilities and resolving issues of credibility.
+In paras 41 to 44 of his judgment [2010] 1 All ER 302 the judge made detailed findings which seem to me to be relevant to this question.
+I refer to only some of them.
+In para 41 he described the history and development of the Ismaili Community.
+He noted from the summary on the website of the Aga Khan Development Network that in the early part of the 20th century Aga Khan III introduced a range of organisational forms that gave Ismaili communities the means to structure and regulate their own affairs.
+He added that those forms were established against the background of "the Muslim tradition of a communitarian ethic on the one hand, and responsible individual conscience with freedom to negotiate one's own moral commitment and destiny on the other".
+included this: At para 42 the judge quoted extensively from the same summary which Spiritual allegiance to the Imam and adherence to the Shia Imami Ismaili tariqah (persuasion) of Islam according to the guidance of the Imam of the time, have engendered in the Ismaili community an ethos of self reliance, unity, and a common identity.
+He noted that in 1986 the present Aga Khan: promulgated a Constitution that, for the first time, brought the social governance of the world wide Ismaili community into a single structure with built in flexibility to account for diverse circumstances of different regions.
+Served by volunteers appointed by and accountable to the Imam, the Constitution functions as an enabler to harness the best in individual creativity in an ethos of group responsibility to promote the common well being.
+Like its predecessors, the present constitution is founded on each Ismaili's spiritual allegiance to the Imam of the time, which is separate from the secular allegiance that all Ismailis owe as citizens to their national entities.
+The guidance of the present Imam and his predecessor emphasised the Ismaili's allegiance to his or her country as a fundamental obligation.
+These obligations discharged not by passive affirmation but through responsible engagement and active commitment to uphold national integrity and contribute to peaceful development.
+In para 43 the judge quoted from a paper presented to the Council of Europe in March 2009 by the Director of International Training with the secretariat of the Aga Khan which included the following: Under the Constitution, the Imam has also established National and International Conciliation and Arbitration Boards to encourage amicable resolution of conflicts through impartial conciliation, mediation and arbitration, a service which is being increasingly used, in some countries, even by non Ismailis.
+In fulfilling the mandate to sustain social, economic, cultural and civil society development, the Imamat collaborates with national governments, regional and international institutions as well as civil society organisations.
+This paper highlights the work of the Conciliation and Arbitration Boards established under the Ismaili Constitution and more particularly the training programmes that have been conducted for them over the last decade, indicating some of the best practices.
+Over the centuries, Ismaili communities in various parts of the world, have been conducting their own ADR processes based on the ethics of the faith as guided by the Imams of the Time. [The Aga Khan] was concerned about the massive costs of litigation faced by members of the Ismaili community in various parts of the world.
+Not only were the legal costs very high, but the legal procedures, in many countries, were particularly lengthy and did not always result in outcomes that conformed with the principles of natural justice.
+The Aga Khan was concerned about compliance with the ethics of the faith which promote a non adversarial approach to dispute resolution in keeping with the principles of negotiated settlement (sulh) enshrined in the Holy Qur'an.
+The study indicated that a majority of the cases were in the field of family disputes and that the national courts in the countries, where the disputants were settled, were not always able to comprehend the inter generational attitudinal issues involved, let alone being able to resolve them.
+This syndrome is very much in keeping with the notion of the "limited remedial imagination" that Menkel Meadow attributes to the adversarial system which focuses on a zero sum numbers game where the "winner takes all".
+It was therefore decided by the Imam, in consultation with the leaders of the various Ismaili communities worldwide, to build on the community's existing tradition of settling disputes amicably within the ethics of Islam and to establish Conciliation and Arbitration Boards at various levels of social governance in the Ismaili communities throughout the world.
+It was also felt that the system should be such that the first submission of an issue to an arbitrational or mediational body should ensure the highest degree of proficiency, probity and fairness so that the number of cases which go for appeal would be minimal and that the process would be seen as being equitable, fair and cost effective.
+The Aga Khan's advice was that such a system should endeavour to resolve disputes within the community without the disputants having to resort to unnecessary litigation which is time consuming, expensive and destructive.
+The Aga Khan saw the amicable resolution of disputes, without resorting to a court of law and within the ethics of the faith, as an important aspect of the improvement of the quality of life of the Ismailis globally.
+Consequently, the Ismaili Constitution of 1986 made provision for the establishment of the Conciliation and Arbitration Boards.
+The judge then in para 44 set out part of article XIII of the Constitution which set up a National Conciliation and Arbitration Board for all types of dispute, which provided by article 13.5: Each National Conciliation and Arbitration Board shall upon the application of any Ismaili assist him to settle any differences or disputes with another party residing in the area of jurisdiction of the National Conciliation and Arbitration Board in relation to any of the matters mentioned in article 13.1(a).
+Article 13.1(a) provided that the Board was: to assist in the conciliation process between parties in differences or disputes arising from commercial, business and other civil liability matters, domestic and family matters, including those relating to matrimony, children of a marriage, matrimonial property, and testate and intestate succession;
+In these circumstances the judge held that the provision in the JVA which provided that the arbitrators should be respected members of the Ismaili community and holders of high office within the community was a GOR within regulation 7(3).
+He did so on the basis that the material set out above showed that, as he put it at para 45, one of the more significant and characteristic spirits of the Ismaili sect was an enthusiasm for dispute resolution contained within the Ismaili community.
+He said that he had no difficulty in determining this spirit to be an "ethos based on religion".
+He also relied upon the terms of the arbitration clause itself and the engagement by both sides of members of the Ismaili community to perform mediation and conciliation services from 1988 until 1994.
+In my opinion the judge was justified in concluding that the requirement of an Ismaili arbitrator can be regarded as a genuine occupational requirement on the basis that it was not only genuine but both legitimate and justified, so that requirement (2) was satisfied.
+As to requirement (3), the judge said at para 46 that, had proportionality been a live issue, having regard to the parties freedom in section 1 of the 1996 Act (quoted above) he would have held that article 8 of the JVA was proportionate.
+The reasoning of the Court of Appeal [2010] ICR 1435 is set out in their para 29 as follows: The judge's findings about the nature and ethos of the Ismaili community were not challenged, but in our view he failed to pay sufficient regard to the other requirements of regulation 7(3), in particular, to whether, having regard to the ethos of that community and the nature of the arbitrator's function, being an Ismaili was a genuine occupational requirement for its proper discharge.
+If the arbitration clause had empowered the tribunal to act ex aequo et bono it might have been possible to show that only an Ismaili could be expected to apply the moral principles and understanding of justice and fairness that are generally recognised within that community as applicable between its members, but the arbitrators' function under clause 8 of the joint venture agreement is to determine the dispute between the parties in accordance with the principles of English law.
+That requires some knowledge of the law itself, including the provisions of the Arbitration Act 1996, and an ability to conduct the proceedings fairly in accordance with the rules of natural justice, but it does not call for any particular ethos.
+Membership of the Ismaili community is clearly not necessary for the discharge of the arbitrator's functions under an agreement of this kind and we are unable to accept, therefore, that the exception provided in regulation 7 of the 2003 Regulations can be invoked in this case.
+I prefer the approach of the judge.
+For the reasons given earlier, I am not persuaded that the test is one of necessity.
+The question is whether, in all the circumstances the provision that all the arbitrators should be respected members of the Ismaili community was legitimate and justified.
+In my opinion it was.
+The approach of the Court of Appeal seems to me to be too legalistic and technical.
+The parties could properly regard arbitration before three Ismailis as likely to involve a procedure in which the parties could have confidence and as likely to lead to conclusions of fact in which they could have particular confidence.
+For these reasons I would, if necessary, have allowed the appeal on the basis that article 8 was a GOR within regulation 7(3).
+This conclusion makes it unnecessary to consider whether it also satisfied regulation 7(2).
+Severance and costs
+In these circumstances, neither the severance issue raised by Mr Hashwani nor the appeal on costs advanced by Mr Jivraj arises and I say nothing about them.
+Reference to the Court of Justice
+I would not refer any of the questions which arise in this appeal to the Court of Justice.
+On the first question, the only questions of EC law which arise relate to the true construction of the Directive.
+The Court of Justice has resolved those issues in a number of cases, notably Allonby [2004] ICR 1328.
+To my mind the principles are now acte clair.
+On the second question, the principal issue between the parties relates to the application of the relevant principles to the facts.
+As to the correct construction of regulation 7(3), I have accepted Mr Brindles submission that it does not involve a wholly subjective question on the ground that the relevant provision must be not only genuine, but also legitimate and justifiable.
+In these circumstances, I see no basis for a reference in relation to GOR, which was in any event not determinative of the appeal.
+CONCLUSION
+I would allow the appeal.
+LORD MANCE
+The first point
+I have read and agree entirely with the judgment of Lord Clarke on the first point: that is, whether the arbitrators contemplated by article 8 of the Joint Venture Agreement are persons who would be engaged in employment under a contract personally to do work within the meaning of regulation 2 of the Employment Equality (Religion or Belief) Regulations 2003, interpreted in the light of Council Directive 2000/78/EC to which the Regulations aim to give effect.
+The conclusion that they would not be is, I think, unsurprising for all the reasons that Lord Clarke gives.
+I note that as long ago as 1904 (RGZ 59, 247), the German Reichsgericht identified the particular nature of an arbitral contract, in terms which I think have a relevance to arbitration generally, when it said (in translation), that: It does not seem permissible to treat the arbitrator as equivalent to a representative or an employee or an entrepreneur.
+His office has . an entirely special character, which distinguishes him from other persons handling the affairs of third parties.
+He has to decide a legal dispute in the same way as and instead of a judge, identifying the law by matching the relevant facts to the relevant legal provisions.
+The performance expected from him is the award, which constitutes the goal and outcome of his activity.
+It is true that the extent of his powers depends on the arbitration agreement, which can to a greater or lesser extent prescribe the way to that goal for him.
+But, apart from this restriction, his position is entirely free, freer than that of an ordinary judge.
+A more modern source, Gary B Borns authoritative work on International Commercial Arbitration (2009), convincingly discusses the general international legal understanding of the nature of an arbitrators engagement in the following passage (Vol I, pp 1607 1609): There is also debate about how to characterize the arbitrators contract, particularly in civil law jurisdictions where the characterization of contracts is often essential to determining their effects.
+Some commentators consider the arbitrators contract to be an agency agreement, where the arbitrator serves as the parties agent.
+Other authorities have suggested treating the arbitrators contract as an agreement for the provision of services.
+A third approach has been to regard the arbitrators contract as a sui generis or hybrid form of agreement, not being categorizable in conventional terms and instead giving rise to a unique set of right and duties.
+The proper analysis is to treat the arbitrators contract as a sui generis agreement.
+That is in part because this characterization accords with the specialized and distinct nature of the arbitrators mandate: as noted above, that mandate differs in fundamental ways from the provision of many other services and consists in the performance of a relatively sui generis adjudicatory function.
+It is therefore appropriate, and in fact necessary, that the arbitrators contract be regarded as sui generis.
+At the same time, there are no other satisfactory characterizations of an arbitrators contract.
+It makes no sense to treat the arbitrators contract as an agency agreement.
+Under most legal systems, that characterization would require the arbitrator to follow the parties directions and to provide the parties with information and an accounting all of which can only with difficulty, if at all, be assimilated to the adjudicative role of an arbitrator.
+Moreover, the role of an agent is inconsistent with the arbitrators adjudicative function which is precisely to be independent of the parties.
+This was underscored by a French appellate decision, which held that an agreement for the parties representatives to resolve their dispute could not be an arbitration agreement: A stipulation of that kind is incompatible with the actual concept of arbitration, since the arbitrators, though appointed by the parties, can under no circumstances become their representatives.
+That would imply, in particular, that they represent the parties and account for their functions.
+Such a role, and the obligations it entails, are alien to the functions of an arbitrator, which are judicial in nature.
+Equally, regarding the arbitrator as a service provider, like an accountant, investment banker, lawyer, or other professional, ignores the essential adjudicative character of his or her mandate.
+Arbitrators do not merely provide the parties with a service, but also serve a public, adjudicatory function that cannot be entirely equated with the provision of service in a commercial relationship.
+The proper analysis is therefore to regard the arbitrators contract as a sui generis agreement specifying the terms on which this adjudicative function is to be exercised vis vis particular parties and on particular terms.
+Both these citations catch and support the essence of Lord Clarkes distinction between persons under the direction of another and arbitrators who perform an independent role, free of such control.
+The second point
+As Lord Clarke notes at para 51, the second point does not in these circumstances arise, since the whole situation falls outside the scope of regulation 2.
+To ask how the exception permitted by regulation 7(3) and article 4(2) of the Directive might apply, when by definition it cannot, may risk giving a slightly false impression about the scope of the exception in situations to which it is potentially applicable.
+The reasons which can, as Lord Clarke demonstrates, be given for concluding that the exception would not apply to a considerable extent duplicate those given for concluding that regulation 2 does not apply.
+They are in particular that the arbitrators would not be under the direction of the parties: see paras 61 et seq.
+Accordingly, it may be appropriate to say a few words about the application of the exception in a situation in which the regulation would apply.
+If one takes a situation which is within regulation 2, say the engagement by the Ismaili community, or by any other organisation whose ethos is based on religion or belief, of an employed lawyer to undertake English law work, I would expect it to be much more difficult to maintain as valid a restriction to members of the Ismaili community or of the other religious or faith based organisation.
+Many English as well as other lawyers believe in, are trained in and are familiar with techniques for the amicable resolution of disputes, including conciliation, mediation and arbitration.
+The value of alternative dispute resolution, particularly mediation, is also recognised at the European legal level (see eg Directive 2008/52/EC of 21 May 2008 on certain aspects of mediation in civil and commercial matters and Council of Europe Recommendation No R(2002)10 on civil mediation).
+A religious or faith based communitys or organisations power first to select and then to direct its own employed lawyers would be a secure means of ensuring that its employed lawyers valued, understood and prioritised the handling of English law work so far as possible on a non confrontational basis, using alternative dispute resolution procedures wherever possible.
+A refusal to employ anyone other than a member of the particular religion or faith would in that context seem unlikely to be justified or proportionate.
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+Permission to appeal was granted in this case in order to enable this Court to consider the following point of law, certified by the Court of Appeal as being of general public importance: If (1) D1 and D2 voluntarily engage in fighting each other, each intending to kill or cause grievous bodily harm to the other and each foreseeing that the other has the reciprocal intention, and if (2) D1 mistakenly kills V in the course of the fight, in what circumstances, if any, is D2 guilty of the offence of murdering V? The facts of this case are unusual, but the importance of the point of law lies in the implications that it may have in respect of the scope of potential liability of those who permit themselves to become involved in public order offences.
+No previous decision in this jurisdiction provides a clear indication of how the point of law should be resolved.
+The principles of law that fall to be applied are those of the common law, albeit that it will be necessary to consider a degree of statutory intervention.
+The particular areas of criminal law that will have to be considered are (i) joint enterprise; (ii) transferred malice; (iii) exemption from liability where a party to what would normally be a crime is a victim of it.
+No precedent indicates the result of the interaction of these three areas of law on the facts of this case.
+In resolving the point of law it will be appropriate to have regard to policy.
+The facts
+The following account of the facts is taken from the Agreed Statement of Facts and Issues.
+This reproduces almost verbatim the summary of the facts in the judgment of the Court of Appeal, delivered by Thomas LJ but to which all members of the court had contributed.
+The other members were Hooper, Hughes and Gross LJJ and Hedley J.
+Together the court brought to the problem very wide experience in the field of criminal law.
+Shortly after 6 pm on Tuesday, 2 October 2007, a 26 year old Polish care worker, Magda Pniewska, was walking home from a nursing home through a car park for blocks of residential accommodation in New Cross, South London and up steps towards an open piece of ground.
+She was on the telephone to her sister when she was killed by a single shot to her head.
+That shot was fired in an exchange of fire between two gunmen one of whom was the respondent.
+The respondent, who was born on 26 May 1990, and was 17 years of age at the time, had a dispute with another youth (TC).
+At about 5 p.m. on 2 October 2007 he went with a friend, Nana Acheampong, by car to the home of his ex girlfriend, Roxanne Landell.
+Shortly thereafter Nana Acheampong and the respondent drove round to a car park elsewhere on the same estate from where the respondent went on foot to an adjacent car park.
+He had armed himself with a gun which was silver in colour and he had several rounds of live ammunition.
+Nana Acheampong had remained in the car.
+A red Volkswagen Polo was already in the car park.
+There were four occupants of the car, one of whom was pregnant.
+The respondent spoke to the occupants of the Polo, as they were about to leave.
+According to two of them he told them that "he had come to meet someone to handle some business".
+He asked if they had seen a man in a red bandana, saying that that man owed him some money.
+Very shortly thereafter the occupants of the red Polo saw someone come down the steps towards the car park.
+His face was covered with a red bandana.
+At the trial, he was referred to as "Bandana Man" and I shall so describe him in this judgment.
+He pulled out a gun, black in colour, and started shooting at the respondent.
+The respondent crouched down behind the red Polo, pulled out his gun and returned the fire.
+The respondent fired two or three shots over the roof of the car.
+He then went to the front of the car and started shooting over the bonnet whilst the other man shot back.
+The clear evidence of those in the red Polo was that the respondent was shooting at Bandana Man.
+It was in that crossfire between the respondent and Bandana Man that Magda Pniewska was killed.
+Scientific examination showed that the single bullet to the deceased's head did not come from the respondent's gun; it had come from the gun held by Bandana Man.
+Both the respondent and Bandana Man fled from the scene.
+TC, who was believed to be Bandana Man was arrested, but never charged.
+The respondent was arrested four days later.
+The car park, in which the gun fight took place, was surrounded by closely built, modern residential blocks in multiple occupation.
+All had windows facing the parking area.
+The areas of common law in play.
+At this point we propose to summarise quite shortly the areas of common law in play.
+It will be necessary to revert to these in greater detail when we come to consider their application to the facts of this case.
+Joint enterprise
+Section 8 of the Accessories and Abettors Act 1861, as amended by the Criminal Law Act 1977, provides: Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender.
+This section does not specify what is encompassed by the words aid, abet, counsel, or procure.
+That question is determined by the common law.
+There is no need in this case to attempt a comprehensive definition.
+In particular we can ignore any complications that may arise in relation to the accessory before or after the fact, who is not present when the criminal act is committed.
+Having regard to the facts of this case we can start with this simple proposition.
+Where two persons, D1 and D2 agree to the commission of an indictable offence, where both are present at the place where the criminal act is to be performed and where one of them, D1, commits that act, both will be jointly liable for the crime.
+The act will have taken place pursuant to their joint criminal purpose and D2 will be equally guilty with D1, having aided, abetted, counselled or procured D1 to commit the crime.
+The law becomes more complicated where, in the course of committing, or attempting to commit the criminal act which is their common purpose, D1 commits a further criminal act which goes beyond that purpose.
+The example that is usually given is the following.
+D1 and D2 break into a house with the common intention of committing a burglary.
+They are surprised by the householder, whereupon D1 hits him on the head with a jemmy and kills him.
+D2 had had no intention, or wish, that either of them should inflict injury in the course of the burglary but had foreseen the possibility that D1 might inflict serious injury in the course of it.
+The situation exemplified by these facts has been repeatedly considered in different factual contexts by the Court of Appeal and the House of Lords.
+These authorities were recently analysed by Hughes LJ when giving the judgment of the Court of Appeal in R v A [2010] EWCA Crim 1622; [2011] QB 841.
+His conclusion, which we would endorse, appears in the following passage from para 27 of his judgment: the liability of D2 rests, as all these citations show, on his having continued in the common venture of crime A when he realises (even if he does not desire) that crime B may be committed in the course of it.
+Where crime B is murder, that means that he can properly be held guilty if he foresees that D1 will cause death by acting with murderous intent (viz either intent to kill or intent to do GBH).
+He has associated himself with a foreseen murder.
+Professor Sir John Smith coined the phrase parasitic accessory liability to describe this form of liability arising out of participation in a joint criminal enterprise.
+While this is not the most elegant phraseology we propose to adopt it in this judgment by way of convenient shorthand.
+Transferred malice
+The principles that we are about to describe have long been recognised by commentators on the common law of crime, but there is a dearth of actual cases to illustrate them.
+Where a defendant intends to kill or cause serious injury to one victim, V1, but accidentally kills another, V2, he will be guilty of the murder of V2.
+The basis of this liability is customarily described as transferred malice, although a better description might be transferred mens rea see Archbold 2011 ed at 17 24; Blackstones Criminal Practice 2011 at A2.13.
+The doctrine applies to secondary parties as it does to principal offenders.
+Thus if D2 attempts to aid, abet, counsel or procure D1 to murder V1 but D1, intending to kill V1, accidentally kills V2 instead, D2 will be guilty of the murder of V2 see Smith & Hogan, Criminal Law,12th ed (2008) at p 205.
+Exemption from liability where a party to what would normally be a crime is a
+victim of it
+In an article on Victims and other exempt parties in crime in (1990) 10 Legal Studies (1990), at p 245 Professor Glanville Williams identified a principle that he described as the victim rule.
+He defined this as follows: where the courts perceive that the legislation is designed for the protection of a class of persons.
+Such people should not be convicted as accessories to an offence committed in respect of them when they co operate in it.
+Nor should they be convicted as conspirators.
+Professor Glanville Williams stated that the principle was founded on a single English decision, but was widely accepted in common law countries.
+That decision was R v Tyrrell [1894] 1 QB 710.
+Section 5 of the Criminal Law Amendment Act 1885 made it an offence for a man to have carnal knowledge of a girl between the age of 13 and 16.
+The defendant, a girl whose age fell within that bracket, was convicted of (1) aiding, abetting, counselling and procuring the commission of that offence by a man upon herself and (2) of inciting the man to commit the same offence.
+On appeal these convictions were robustly quashed.
+Lord Coleridge CJ, giving the leading judgment, said at p 712: The Criminal Law Amendment Act 1885 was passed for the purpose of protecting women and girls against themselves.
+At the time it was passed there was a discussion as to what point should be fixed as the age of consent.
+That discussion ended in a compromise, and the age of consent was fixed at sixteen.
+With the object of protecting women and girls against themselves the Act of Parliament has made illicit connection with a girl under that age unlawful; if a man wishes to have such illicit connection he must wait until the girl is sixteen, otherwise he breaks the law; but it is impossible to say that the Act, which is absolutely silent about aiding or abetting, or soliciting or inciting, can have intended that the girls for whose protection it was passed should be punishable under it for the offences committed upon themselves.
+I am of the opinion that this conviction ought to be quashed.
+In R v Whitehouse [1977] QB 868 the Court of Appeal reluctantly held that this principle precluded the conviction of a father for inciting his daughter, who was under 16, to aid and abet him to commit incest with her.
+Section 1 of the Criminal Law Act 1977 created a statutory offence of conspiracy to commit a crime.
+Section 2(1) provides: 2. (1) A person shall not by virtue of section 1 above be guilty of conspiracy to commit any offence if he is an intended victim of that offence. (2) A person shall not by virtue of section 1 above be guilty of conspiracy to commit any offence or offences if the only other person or persons with whom he agrees are (both initially and at all times during the currency of the agreement) persons of any one or more of the following descriptions, that is to say (c) an intended victim of that offence or of each of those offences.
+Blackstone comments at A6.38 that section 2(1) appears designed to apply the principle established by Tyrell.
+It will be necessary to consider in due course the scope of this provision and whether, by analogy, the common law should prohibit the conviction of a defendant for aiding and abetting an offence against the person where he is the victim of the offence.
+Relevant to these questions is the more restricted wording of section 51 of the Serious Crime Act 2007: (1) In the case of protective offences a person does not commit an offence under this Part by reference to such an offence if (a) he falls within the protected category; and (b) he is the person in respect of whom the protective offence was committed or would have been if it had been committed. (2) Protective offence means an offence that exists (wholly or in part) for the protection of a particular category of persons (the protected category) The judges ruling on the defence submission of no case to answer and the case
+subsequently advanced by the Crown
+At the end of the prosecution case Miss Bennett Jenkins QC for the defence submitted that there was no case to go to the jury.
+Mr Altman QC for the Crown argued that there were two possible bases upon which the jury could convict.
+It was common ground that Bandana Man had been guilty of murder of Miss Pniewska, applying the principle of transferred malice in that he had plainly been attempting to kill or cause serious bodily harm to the respondent.
+The first basis upon which the jury could convict was that the respondent had aided and abetted this murder, in that he had encouraged Bandana Man to fire at him with homicidal intent.
+When, however, the judge asked whether he was submitting that the respondent aided and abetted his own attempted murder he replied that he could not so submit.
+He argued that the liability of the respondent flowed on a wider basis from the implicit agreement between himself and Bandana Man that they should meet in a public place, each with an intent to kill or cause serious harm to the other.
+The judge rejected this argument.
+He observed that there was difficulty in an analysis of a joint enterprise where the defendant was himself the intended victim of the other gunman: He neither intended nor consented to bodily injury to himself at the hand of the other, nor could he truly be said to be a party to a joint enterprise to kill or cause grievous bodily harm to himself as the intended target of the other.
+Even if he contemplated that the other might shoot at him with the necessary intent, he not being a party to the enterprise to cause harm to himself, would not be liable for the unintended consequences on that basis alone.
+About this, in my judgment, there can be no doubt.
+There is no possible joint enterprise involving the killing of himself to which the defendant was privy as such.
+If he and Bandana Man had a common enterprise to kill a third party, and Magda was killed by a bullet from Bandana Mans gun, then the doctrine of transferred malice could operate to make Bandana Man guilty as a primary party to the murder of Magda, and in as much as the defendant was privy to a joint enterprise to kill someone in common with Bandana Man, sharing that common intention, he would also be liable as a secondary party.
+Here, however, there was no common intention to murder any particular person.
+Each of the protagonists had a separate intent to kill or to seriously injure the other.
+Their intentions were parallel but running in opposite directions.
+He later added Here, however, it cannot be said, in my judgment, that the defendant actively encouraged Bandana Man to shoot at him, and even if he did, it would be a real oddity for a victim of an attempted murder to be a secondary party to that attempt.
+In reality on the evidence, the defendant fired at Bandana Man in the hope of killing him or causing him grievous bodily harm, frightening him, or arguably, in self defence.
+He cannot be said to have encouraged the other to fire back, whatever the order of shots as the jury might ultimately find them to be.
+He might have provoked further firing, but he did not encourage it.
+In the light of this ruling, Mr Altman did not pursue this way of putting his case.
+The alternative case that Mr Altman advanced was one of parasitic accessory liability.
+The judge accepted that this alternative was viable.
+He held that it was open to the jury to find that the respondent and Bandana Man were subject to a joint enterprise to commit an affray and that, if the jury then found that the respondent foresaw and envisaged that Bandana Man might shoot and kill an innocent passer by this would found a verdict of murder on the part of the respondent.
+The judges direction to the jury
+The judge crafted his direction to the jury with great care.
+He founded it on the principle of parasitic accessory liability.
+For reasons that we shall explain we do not consider that this principle could properly be applied on the facts of this case.
+None the less it is necessary to set out a large part of his direction in order to decide whether the jury must have been satisfied that the relevant elements of the crime of murder, as we shall identify them, were proved: Now what the prosecution say about the defendants role in this murder is that the defendant was involved in a joint enterprise, that is a term which I will explain to you in a moment and which again will appear in the piece of paper that I am going to give you.
+It was a joint enterprise because it had a gunfight and both the defendant and Bandana Man, say the prosecution, each took part in that gunfight, realising that the other was likely to shoot, and might, in shooting, with the intention of killing or causing really serious injury, kill someone other than himself who was the immediate target of the shots.
+And the prosecution say, in those circumstances, the defendant is jointly responsible for the murder with Bandana Man on the basis of this joint enterprise.
+Joint enterprise: that is a word I need to explain to you.
+Let me explain that concept.
+It arises in the ordinary way where people jointly commit an offence.
+Where a criminal offence is committed by two or more people, each of them may play a different part in that offence, but if they are in it together as part of a joint plan or joint agreement to commit it, each is guilty of the planned offence.
+The words plan or agreement that I have just used do not mean that there has to be any formality about it.
+An agreement to commit an offence may arise on the spur of the moment.
+Nothing needs to be said at all.
+It can be made with a nod or a wink or just a knowing look or by taking the first step in committing an offence in which the other person then joins, so that it can be inferred from their behaviour.
+The essence of joint responsibility for a criminal offence is that each person shared the intention to commit the offence and took some part in it so as to achieve that aim, so in the ordinary way, you would consider each person said to be involved, and if you are sure that he took part in committing the offence with any intention necessary for that offence, he would be guilty.
+But there is a further element in the concept of joint enterprise, and it is this: if two people agree or plan in the sense I have mentioned to commit one offence, one type of offence, but during the course of it, one of them commits another offence, both may still be responsible for that other offence.
+Of course, the person who actually does the offence, the act which constitutes that further offence will be guilty of it, but the other person will also be guilty of it if he realised that the act done was something which the first person might do with the necessary intent as part of their planned offence.
+Now here it is said by the prosecution that Bandana Man and the defendant planned to use unlawful violence towards another by having a shoot out, whether that plan was made beforehand and the meeting was pre arranged or was made on the spur of the moment when they saw each other and fired at each other from the steps and the car respectively.
+If you are sure that Bandana Man and the defendant joined together to commit such unlawful violence by having a gunfight, whether pre planned or whether on the spur of the moment on the top of the steps and the side of the car, and that this joint enterprise came into being before Magda was killed by a shot from Bandana Man, then the defendant would be guilty of murder also, along with Bandana Man, provided the other requirements are satisfied.
+So if you are sure that Bandana Man and the defendant were in a joint enterprise to cause an affray, to use unlawful violence against each other by having a gunfight and by firing at each other, whether this joint enterprise was the result of a pre planned meeting or arose on the spur of the moment when they saw each other, and that in the course of that joint enterprise fight, Magda was murdered by Bandana Man on the basis of transferred malice, as I have explained it to you, and that the defendant realised and the prosecution say that he must have realised that in the course of their joint enterprise gunfight, Bandana Man might kill with the requisite intention for murder, then the defendant would also be guilty of murder.
+The decision of the Court of Appeal
+Before the Court of Appeal Mr Altman made no attempt to revive the first way that he had sought to put the Crowns case.
+He sought to uphold the judges direction on the basis of parasitic accessory liability.
+Miss Bennett Jenkins submitted that this case was not viable.
+The starting point for parasitic accessory liability was a joint enterprise.
+There had been no joint enterprise.
+The respondent and Bandana Man had each been engaged on a separate, individual and diametrically opposed enterprise, for each was out to harm the other.
+So far as foresight of Bandana Mans conduct was concerned, all that the respondent could have foreseen was that Bandana Man would try to kill him.
+Parasitic accessory liability was founded on encouragement to commit the further offence, implicit in pursuing the original joint venture.
+The judge had rightly found that the respondent had not encouraged Bandana Man to shoot at him.
+Thus the further essential element of encouragement was missing.
+The Court of Appeal accepted this argument.
+Its reasoning was complex and spanned paras 48 to 70 of its judgment, but we believe that we can summarise it quite shortly.
+Parasitic accessory liability has to arise out of a joint enterprise that involves the two parties acting together, or in concert, or for a common purpose.
+Where an affray is alleged to have arisen from a fight between two people it does not ordinarily involve a joint enterprise or common purpose.
+Ordinarily the purpose of each protagonist to such an affray is the individual purpose of striking the other and avoiding being struck himself.
+Such purposes are not shared by the two protagonists, they are reciprocal, or equal and opposite purposes.
+It was none the less possible to envisage a scenario in which two persons shared a common purpose to strike and be struck a prize fight or a duel were examples of this.
+On the facts of the present case there might have been a common purpose to shoot and be shot at, as in a duel, but the judge had never asked the jury to consider that possibility.
+The reasoning of the court was summarised in para 59 of its judgment: What is at issue here is secondary liability.
+The essence of secondary liability is that the parties are acting together or, as it is often put, in concert.
+For what we have described as the third type of joint enterprise liability they must be acting together or in concert in crime A, here affray.
+Two people who voluntarily engage in fighting each other might, exceptionally, be acting together or in concert, but ordinarily they are not.
+It is not realistic to say that they acted in concert to cause fear; they acted independently and antagonistically in a manner which did so.
+Absent a shared purpose to shoot and be shot at, the submission made by the appellant was correct that there was no room on the facts for any other common purpose.
+The jury was never asked to confront the question whether the shared common purpose was not only to shoot, but to be shot at.
+The Crown had accepted that the respondent could not be convicted on the basis that he had been party to a joint enterprise with Bandana Man to shoot at each other, with the intent to kill or cause really serious bodily injury for the following reason (para 33): The difficulty on the facts of the current case is that the appellant himself was the intended victim of the other man.
+The appellant neither intended nor consented to bodily injury to himself at the hand of the other man nor could he truly be said to have been party to a joint enterprise to kill or cause harm to himself (being the intended target of the other man).
+Even if he had contemplated that the other man might shoot at him with the necessary intent, he not being a party to the enterprise to cause harm to himself, could not be liable for any unintended consequences on that basis alone.
+The Court of Appeal referred to this concession and emphasised at para 37 that it had not considered whether it was correctly made.
+However the Court of Appeal returned to the concession in a post script to its judgment and set out the following arguments that raised a question mark over the concession. 73. (i) If two persons agree to a duel with the use of guns, they have agreed to shoot at each other with the intention of killing or seriously harming the other.
+That activity, as a matter of ordinary language, could be described as an agreement to shoot and be shot at.
+To that extent it is arguable that they have a shared common purpose. (ii) Clearly an agreement to a duel or to shoot at each other is illegal, as no one can consent to run the risk of being killed in such a way.
+As Lord Templeman pointed out in R v Brown (Anthony) [1994] 1 AC 212, 231, the defence of consent never availed a person who maimed the other participant in a duel: Hawkins' Pleas of the Crown 8th ed (1824), vol 1, ch 15.
+In Attorney Generals Reference (No 6 of 1980) [1981] 1 QB 715, it was made clear that it is not in the public interest that people should try to cause or should cause each other harm for no good reason.
+It is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended or caused. (iii) There can be an agreement to use unlawful violence by two opposing and antagonistic persons, illegal though it is.
+In R v Coney (1882) 8 QBD 534, all the judges were agreed that both prize fighters were guilty of an assault on each other.
+Although each would be guilty as a principal of a separate offence, it is arguable that the two prize fighters have a simple agreement to exchange blows and to that extent share a common purpose to hit and be hit. (iv) The question would then arise, if it was accepted that two prize fighters can have an agreement to hit and be hit, as to whether the use of lethal weapons made a difference.
+If there really is an agreement to shoot and be shot at, it is arguable that it does not.
+Just as in the case of prize fighters, each hoped that the other would be wounded or killed, but that he would not be.
+But the fact that each hoped for a different outcome, did not necessarily mean that they did not share a common purpose of shooting and being shot at. (emphasis added)
+The Court of Appeal went on to consider issues of policy: 74 There is at the heart of this issue a question of policy.
+Does the justice and effectiveness of the criminal justice system require the imposition of liability in cases of genuinely agreed duels by acceptance that there can be a joint enterprise of the first type between opposing persons if they agree not only to hit but to be hit? 75 But there is also a second question.
+At para 58, we referred, in the context of the judge's directions to the jury, to the wider implications for criminal liability for death or injury or damage that occurs in the course of a fight between two gangs.
+Spelling that second question out may assist. i) Say a home group meet an away group, each seeing that the other is armed with sticks and bars.
+They begin a fight. ii) In the course of the fight members of the home group use bars intentionally to cause really serious injuries to a member of the away group and in the course of doing so injure an innocent bystander; each receives really serious injuries from which he dies. iii) It could readily be inferred that all those engaged in the fight foresaw that there was a real possibility that one of those engaged in the fight or an innocent bystander might be caused serious bodily injury by being intentionally struck by one of those fighting with a bar in the course of the fight.
+What are the circumstances in which the members of the away group bear criminal responsibility for the death of the member of their group or the innocent bystander caused by the home group? The court commented that both of these issues of policy were questions for the future.
+Because of a change of tack by the Crown in this court the time has now come to consider them.
+The Crown case before this Court
+In the alternative Mr Altman has sought to rely upon the doctrine of
+Before this Court Mr Altman QC for the Crown has sought to revive the case that he had abandoned at the trial and had not sought to advance before the Court of Appeal.
+Paras 30 to 48 of his written case are devoted to arguing that the respondent had been an accessory to Bandana Mans attempt to kill him and thus shared Bandana Mans liability, as a result of the doctrine of transferred malice, for the murder of Miss Pniewska.
+This radical change of case is perhaps inspired by the obiter comments of the Court of Appeal and by commentary on those comments in [2011] Crim L R 151, 156.
+parasitic accessory liability that had been rejected by the Court of Appeal.
+Discussion: Parasitic accessory liability in public order offences
+We propose to start by considering Mr Altmans attempt to rely upon the doctrine of parasitic accessory liability.
+We shall first of all explore the reasoning of the Court of Appeal in concluding that this was not a viable route to convicting the respondent of murder.
+We shall then draw attention to a further significant difficulty that Mr Altman faces in seeking to rely upon this doctrine.
+The nature of the offence of affray
+Affray was a common law offence with its origin many centuries ago.
+By the middle of the twentieth century it had been lost from sight, for as Lord Goddard CJ remarked at p 559 of R v Sharp; R v Johnson, [1957] 1 QB 552, the first case in which the offence resurfaced, there seemed to be no reported case which dealt with it.
+That case involved a fight between the two defendants in a public place in the presence of a large number of spectators.
+They were jointly indicted on a charge of affray and convicted.
+On the basis of distinguished and venerable commentaries Lord Goddard identified the offence of affray as one committed where two or more persons fought in a public place to the terror of the Kings subjects.
+In that case the convictions of the two appellants were quashed on the ground that each claimed to have been acting in self defence, and this defence had not been left to the jury.
+Lord Goddard held at p 561: If two men are found fighting in a street one must be able to say that the other attacked him and that he was only defending himself.
+If he was only defending himself and not attacking that is not a fight and consequently not an affray.
+This comment proved to be an over simplification.
+Having been rediscovered, affray became a very popular charge, being used on literally thousands of occasions, and in due course received consideration by the House of Lords.
+In R v Button; R v Swain [1966] AC 591 the issue was whether an affray had to take place in a public place.
+The House held that it did not.
+Lord Gardiner LC, giving the only reasoned speech, held at p 625 that the essence of the offence was that two or more fought together to the terror of the Queens subjects.
+In R v Taylor (Vincent) [1973] AC 964 the House of Lords, disapproving the dictum of Lord Goddard in Sharp and Johnson, held that a single defendant could be guilty of affray if he fought with another, who lawfully defended himself.
+Lord Morris of Borth y Gest put the matter as follows at p 991: But if two men are seen to be fighting in a street with the result that terror is caused to the Queens subjects and if it has all come about because one is an aggressor while the other was merely defending himself I see no reason why the aggressor should be immune from conviction for affray.
+Those who see the fighting may have no means of deciding how it came about or whose fault it was.
+They may not be able to appreciate that one man is merely defending himself and doing his best to disengage.
+The terror and alarm caused to them by the fighting will not be any the less because the fact may be that one man of the two was only of necessity engaged in the fighting.
+In 1983 the Law Commission published a report, HC 85; Law Com No 123, on Offences Relating to Public Order.
+They recommended that the common law offence of affray should be preserved in an Act that would replace the common law offences of riot, unlawful assembly and affray.
+In the draft Bill appended to the Report they defined the offence of affray as follows: 3(1) Where two or more persons use or threaten unlawful violence against each other, or one or more persons use or threaten unlawful violence against another, and their conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety, each of those persons commits the offence of affray.
+This was followed by a White Paper, May 1985 Cmnd 9510, entitled Review of Public Order Law.
+This stated at para 3.15 that the Government was content to accept the Law Commissions proposed statutory definition of affray.
+Unfortunately the draftsman of what was to become the Public Order Act 1986 appears to have thought that he could improve on the drafting of the Law Commission.
+Thus the definition of affray in section 3 of that Act is as follows: (1) A person is guilty of affray if he uses or threatens unlawful violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety. (2) Where 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1).
+We have emphasised the words the unlawful violence because they gave rise to considerable debate on this appeal.
+They are hard to reconcile with the passage that we have quoted from the speech of Lord Morris in R v Taylor.
+More significantly, if given their natural meaning, they would appear to suggest that two defendants can only be jointly liable on a single count of affray if they join in using violence towards another; if they fight each other each commits an individual offence of affray, but they are not guilty of a joint offence.
+This would be nonsensical.
+We do not consider that the Act has altered the common law offence of affray in this way.
+The joint offence of affray can be founded on the common product of individual conduct, viz violence capable of causing fear, and does not require any common intention or purpose on the part of the joint participants.
+Section 6(2) sets out the mens rea of the offence as follows: A person is guilty of violent disorder or affray only if he intends to use or threaten violence or is aware that his conduct may be violent or threaten violence.
+Thus an affray need not involve any common enterprise or common purpose.
+The Court of Appeal rightly held that parasitic accessory liability must be founded on a common unlawful enterprise or purpose.
+It is joining in this common enterprise that renders the conduct of the accomplice an encouragement to the principal to commit the additional offence, thereby justifying the conviction of the accomplice.
+Because affray does not necessarily involve any common purpose it cannot automatically constitute a foundation for parasitic accessory liability.
+The Court of Appeal left open, however, the possibility that, on the facts of an individual case, affray may be the product of a common purpose or enterprise capable of providing a foundation for parasitic accessory liability.
+A duel was given as an example of such a situation.
+So might the facts of the present case if they evidenced an agreement to shoot and be shot at.
+The court held, however, that this possibility had not been left to the jury.
+Many public order offences constitute a spontaneous outburst of reciprocal violence, often fuelled by alcohol.
+They can, however, involve a common purpose indeed such a common purpose is an element of the offence of riot.
+It is not uncommon for groups of youths, supporters of rival football clubs for example, to plan to meet in order to do battle.
+It may be that most involved in such a skirmish have no wish to cause serious injury.
+There will, however, be an obvious possibility that one or more of those involved may go beyond the common intention of the majority of the combatants and deliberately cause serious injury.
+If such an event occurs and a victim suffers serious injury, or even dies, are all who were present guilty of causing grievous bodily harm, or murder where the victim dies, by reason of the doctrine of parasitic accessory liability? It is this question that the Court of Appeal raised, but left unanswered.
+For reasons that we shall explain the facts of this case do not require an answer to the question, despite the reformulation of the Crowns case.
+We would consider it undesirable, however, if a practice developed of relying on the doctrine of parasitic accessory liability to charge with murder parties to an affray who had not themselves intended that it would result in serious injury.
+No issue of parasitic accessory liability arises in this case
+Parasitic accessory liability arises where (i) D1 and D2 have a common intention to commit crime A (ii) D1, as an incident of committing crime A, commits crime B, and (iii) D2 had foreseen the possibility that he might do so.
+Here there was no crime A and crime B.
+It cannot be said that the two protagonists had a joint intention to commit violence of a type that fell short of the violence committed.
+Either Bandana Man and the respondent had no common intention, or there was a common intention to have a shoot out.
+If they intended to have a shoot out, then each necessarily accepted that the other would shoot at him with the intention to kill or cause serious injury.
+Neither intended that the other should kill him but each accepted the risk that he might do so.
+The Crown sought to suggest that there was a joint intention to have an affray, which was crime A, and that the killing by Bandana Man was crime B, for which the respondent was liable as an accessory because it was within his contemplation as a possible, albeit unintended, incident of crime A.
+The fallacy of this argument is that, if there was a joint intention to have an affray, that intention was to have an affray by shooting at each other with homicidal intent.
+It is artificial to treat the intention to have an affray as a separate intention from the intention to have a potentially homicidal shooting match.
+The victim rule
+Why was the Crown so keen to establish liability under the doctrine of parasitic accessory liability? The answer is, we believe, that the Crown believed that this route would enable it to by pass what was perceived to be a barrier to the direct route to the respondents liability for murder.
+The direct route was as follows: i) Bandana Man attempted to kill the respondent; ii) By agreeing to the shoot out, the respondent aided and abetted Bandana Man in this attempted murder; iii) Bandana Man accidentally killed Miss Pniewska instead of the respondent.
+Under the doctrine of transferred malice he was guilty of her murder. iv) The doctrine of transferred malice applied equally to the respondent as aider and abetter of Bandana Mans attempted murder.
+He also was guilty of Miss Pniewskas murder.
+The Crown believed that there was a barrier to this direct route to the respondents liability for murder.
+This was the application of the victim rule.
+Mr Altman, when discussing the law with the judge, stated that the respondent could not aid and abet his own attempted murder.
+If this proposition correctly represents the law, we do not see how the Crown can avoid its effect by invoking the doctrine of parasitic accessory liability.
+Parasitic accessory liability does not differ in principle from the more common basis for finding someone guilty of aiding, abetting, counselling or procuring the commission of a crime.
+In so far as the law precludes conviction for aiding and abetting a crime in respect of which the defendant is the victim, it must surely do so whatever the route by which the defendant would otherwise be held to have been an accomplice.
+We turn then to consider the Crowns new case, which is that the conviction of the respondent can be justified on the basis that the respondent aided and abetted the commission of the murder by actively encouraging Bandana Man to shoot at him.
+In relation to this case it seems to us that the issues for the Court are as follows: i) Does the victim rule preclude the conviction of a defendant for aiding and abetting a crime in respect of which he is the victim, even where the crime is not designed to protect a particular class of which the victim is a member? If yes, ii) Does the victim rule preclude the conviction of a defendant for aiding and abetting a crime in respect of which he was the intended victim, but where the actual victim is a third party? iii) If the victim rule did not preclude the respondents conviction for aiding and abetting the murder of Miss Pniewska, was the judges direction to the jury a sound basis for the jurys guilty verdict?
+The scope of the victim rule
+The first question to consider under this head is whether there is any statutory bar to prosecuting the respondent for being party to a crime in respect of which he was the intended victim.
+So stated this perhaps begs the question, for it presupposes that the respondent was a prospective victim for the purpose of the victim rule.
+If the first question produces a negative reply, it will then be necessary to consider whether there either is, or should be, a victim rule under the existing common law, or the common law as this court should develop it.
+The origin of the victim rule appears to lie in the decision in Tyrrell see para 18 above.
+The decision in that case can best be interpreted as being based on a term to be implied into the Criminal Law Amendment Act, based as the reasoning was on the implied intention of Parliament.
+The decision does, however, illustrate the application of the general rule defined by Professor Glanville Williams, as set out at para 17 above.
+Section 2(1) of the Criminal Law Act 1977, set out at para 19 above, applies a wider principle than Glanville Williams formulation of the victim rule, if victim is given the wide meaning of any person who will be harmed by the offence.
+The scope of the word victim in that context has not, however, received judicial consideration so far as we are aware.
+If it is given the wide meaning it would seem to produce the surprising result that a conspiracy by two persons that one will commit a terrorist atrocity as a suicide bomber, or to set fire to a house owned by one of them in furtherance of some ulterior motive, would appear not to subject either to criminal liability.
+There is a case for confining the meaning of victim to persons of a class that the relevant Act is intended to protect, thus bringing section 2(1) into accord with the victim rule, as defined by Glanville Williams.
+At all events, section 2(1) is confined to the crime of conspiracy and can have no direct application to the facts of this case.
+The case for giving a narrow construction to victim in section 2(1) of the Criminal Law Act 1977 is perhaps strengthened by the limited exemption from criminal liability conferred by section 51 of the Serious Crime Act 2007, which we have set out at para 19 above.
+This section gave effect to a recommendation of the Law Commission that the principle in Tyrrell should apply to proposed offences of encouraging or assisting crime see 12(4) of Halsburys Statutes, 4th ed, at paras 401 and 408.
+This provision also has no application to the facts of this case.
+It follows that there is no applicable statutory victim rule that precludes conviction of the respondent on the basis that he aided and abetted Bandana Mans attempt to kill him or cause him serious injury.
+Is there, or should there be a common law rule that does so?
+The fact that Parliament found it necessary to enact section 2(1) of the 1977 Act and section 51 of the 2007 Act is cogent indication that there is no common law rule that precludes conviction of a defendant of being party to a crime of which he was the actual or intended victim.
+We are satisfied that there is no such rule.
+This is evident from the fact that, under common law, attempted suicide was a crime, as was aiding and abetting suicide.
+The victim of a successful suicide attempt could not, of course, be prosecuted, but if in an attempt to commit suicide, the defendant killed a third person, he committed the crime of murder under the doctrine of transferred malice see R v Hopwood (1913) 8 Cr App R 143 and R v Spence (1957) 41 Cr App R 80.
+We can see no reason why this Court should consider extending the common law so as to protect from conviction any defendant who is, or is intended to be, harmed by the crime that he commits, or attempts to commit.
+Such an extension would defeat the intention of Parliament in circumscribing the victim rule in section 51 of the 2007 Act.
+In R v Brown (Anthony) [1994] 1 AC 212 sado masochists were held to have been rightly convicted of causing injury to others who willingly consented to the injuries that they received.
+There would have been no bar to conviction of the latter of having aided and abetted the infliction of those injuries upon themselves.
+It is no doubt appropriate for prosecuting authorities to consider carefully whether there is justification for prosecuting anyone as party to a crime where he is the victim, or intended victim of that crime, but that is not to say that the actual or intended victim of a crime should on that ground alone be absolved from criminal responsibility in relation to it.
+As Lord Lane CJ observed in Attorney Generals Reference (N0 6 of 1980) [1981] QB 715, 719: it is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason
+The victim rule and transferred malice
+In the light of the conclusion that we have just reached, no question arises as to the application of the victim rule where, although the intended victim of the crime to which the defendant is party is the defendant himself, the actual victim proves to be a third party.
+Was the judges direction to the jury a sound basis for their guilty verdict?
+If the respondent aided, abetted, counselled and procured Bandana Man to shoot at him he was, on my analysis, guilty of aiding and abetting the attempted murder of himself.
+Had he been killed by Bandana Man, he would have been a party to his own murder.
+Although he had not intended that Bandana Man should succeed in hitting him, complicity in his attempt to do so would have rendered him a party to the successful achievement of that attempt.
+As it was, Bandana Man accidentally shot Miss Pniewska.
+Under the doctrine of transferred malice he was liable for her murder.
+Under the same doctrine, the respondent, if he had aided abetted, counselled and procured the attempt, was party to the murder that resulted.
+Does it follow that, having regard to the terms of the judges directions, the jury must have been satisfied that the respondent had aided, abetted, counselled and procured Bandana Man to shoot at him with murderous intent? If so, his conviction can stand.
+If not, the Court of Appeal correctly quashed it.
+In his ruling that there was a case to go to the jury the judge ruled that that it could not be said that the defendant actively encouraged Bandana Man to shoot at him.
+He could not be said to have encouraged Bandana Man to fire at him, although he might have provoked this.
+Perhaps it was with this passage of his ruling in mind that the Court of Appeal observed at para 59 that the jury was never asked to confront the question whether the shared common purpose was not only to shoot but be shot at.
+In the next paragraph the Court of Appeal observed that, the judge was, in effect, leaving to the jury a limited common purpose limiting it to an exchange of gun fire which did not extend to the gunman being hit.
+Having carefully considered the passages in the judges summing up that we have set out at para 23 above we do not consider that they support the Court of Appeals conclusion.
+It may well be that the intention of the judge was to direct the jury to consider whether there was a common intention to have an affray that fell short of an intention to shoot at each other and be shot at.
+For the reasons that we have given this would have been an incredible scenario.
+Either there was no joint plan or agreement at all, or there was a common intention to shoot at one another, which can only mean to shoot and be shot at.
+What matters, however, is not the route that the judge considered would lead to a conviction, but the direction that he gave to the jury.
+He directed the jury that, in order to convict they had to be satisfied that there was a plan or agreement to have a shoot out whether made beforehandor made on the spur of the moment when they saw each other and fired at each other from the steps and the car park respectively.
+This direction did not permit the jury to convict if they believed that one of the protagonists might have been the aggressor and the other merely responding in self defence.
+It was an unequivocal direction that the jury could convict only if they were satisfied that the protagonists had formed a mutual plan or agreement to have a gun fight in which each would attempt to kill or seriously injure the other.
+If the jury were satisfied of this, the consequence in law was that each of the protagonists was party, not merely to his own attempt to kill or seriously injure the other, but to the others attempt to kill or seriously injure him.
+Contrary to the finding of the Court of Appeal, the direction of the judge required the jury to consider whether they were satisfied that the respondent and Bandana Man had a common plan or agreement to shoot at each other and be shot at.
+If they were so satisfied, and their verdict indicates that they were, this was a proper basis for finding that the respondent was guilty of murder.
+In arguing at the close of the prosecution case that there was a case of simple aiding and abetting to go to the jury Mr Altman sought to draw an analogy with a duel.
+There is indeed a close analogy between a consensual gunfight and a duel.
+In the case of a duel all who are present and who lend encouragement to the duel will be guilty of aiding and abetting each of the protagonists in his attempt to kill or injure the other.
+If one is killed, all who gave encouragement will be guilty of murder, and this includes the seconds on each side see R v Young and Webber (1838) 8 C & P 644.
+It logically follows that each protagonist will be party to the violence, or attempted violence, inflicted on himself by his opponent.
+The same is true of a prize fight.
+In R v Coney (1882) 8 QBD 534 each protagonist was held guilty of assaulting the other and a number of bystanders were held to have encouraged, and thus to have been guilty of aiding and abetting, the assaults of both.
+Once again each protagonist could properly have been held guilty of aiding and abetting the assault by the other upon himself.
+A guilty verdict in this case involves a combination of common law principles in relation to aiding and abetting and the common law doctrine of transferred malice, In Attorney Generals Reference (No 3 of 1994) [1998] AC 245, 261 Lord Mustill commented of the latter doctrine: Like many of its kind this is useful enough to yield rough justice, in particular cases, and it can sensibly be retained notwithstanding its lack of any sound intellectual basis.
+But it is another matter to build a new rule upon it.
+We have considered whether to hold the respondent guilty of murder would be so far at odds with what the public would be likely to consider the requirements of justice as to call for a reappraisal of the application of the doctrine in this case.
+We have concluded to the contrary.
+On the jurys verdict the respondent and Bandana Man had chosen to indulge in a gunfight in a public place, each intending to kill or cause serious injury to the other, in circumstances where there was a foreseeable risk that this result would be suffered by an innocent bystander.
+It was a matter of fortuity which of the two fired what proved to be the fatal shot.
+In other circumstances it might have been impossible to deduce which of the two had done so.
+In these circumstances it seems to us to accord with the demands of justice rather than to conflict with them that the two gunmen should each be liable for Miss Pniewskas murder.
+We have considered the judgments of Lord Brown and Lord Clarke.
+They essentially agree with our conclusions.
+Each, however, considers that the defendant was liable as a principal to the agreed joint activity of shooting with intent to kill or cause serious injury, rather than as an accessory to the act of firing the shot.
+This is not a difference of substance.
+It may well be that, in terms of the common law, Bandana Man was a principal in the first degree and the respondent was a principal in the second degree see Archbold, 2011 edition, para 18 1.
+But as Archbold remarks at para 18.6: the distinction between a joint principal and an abettor is sometimes difficult, and unnecessary, to draw.
+Whether the respondent is correctly described as a principal or an accessory is irrelevant to his guilt.
+In R v Giannetto [1997] 1 Cr. App. 1 the appellant was convicted of murdering his wife.
+The Crown was unable to say whether he had inflicted the fatal injuries himself or, at the very least, had arranged for someone else to do so.
+On this basis however he was guilty of her murder either as a principal or as an accessory.
+Following his conviction the appellant argued that the judge had erred in law when he failed to direct the jury that they must be unanimous as to which of the two versions of events advanced by the Crown they accepted.
+If the jury were not sure which of the two alternatives they found proved, then the appellant was entitled to be acquitted.
+After an examination of the authorities, the submission was rejected.
+If the jury does convict it may do so with some jurors satisfied that the defendant was actually the killer, but all will be satisfied that if not himself the killer at least he encouraged and by reason of the statutory provision in the 1861 Act no more is necessary to prove the offence. (per Kennedy LJ at 5) This decision simply reflects the reality that whether an offence is committed as a principal or as an accessory, the offence is the same offence and the defendant is guilty of it.
+There may be many situations in which it will be important to distinguish between the principal and the accessory, but this is not such a case.
+On the jurys verdict, both men agreed to the joint enterprise of having a shoot out.
+Whether, on strict analysis, that made the respondent guilty as a principal to Bandana Mans actus reus of firing the fatal shot, or guilty as one who had aided, abetted counselled or procured his firing of that shot creates no practical difficulty on the facts of this case and does not affect the result.
+For these reasons we would answer the certified question in the affirmative, allow this appeal and restore the respondents conviction for murder.
+LORD BROWN
+The central question for decision on this appeal can be shortly posed.
+Two armed men (let us call them A and B) confront one another in a south London car park and there engage in an unlawful gunfight, each with the intention of killing or at least seriously injuring the other.
+Neither is acting in self defence.
+Rather the gunfight was agreed, either pre arranged or resulting from a spur of the moment decision by both.
+Neither in fact succeeds in hitting his adversary but in the course of their crossfire a passerby (C), one of several people in the vicinity, is accidentally killed.
+B it was who fired the fatal bullet and indisputably he is guilty of Cs murder: the principle of transferred malice so dictates.
+But is A too guilty of Cs murder? That is the critical question before us.
+A here is the respondent, Mr Gnango (the successful appellant below), B is Bandana Man (as he has been called throughout these proceedings), and C is an unfortunate Polish careworker, killed on her way home from work.
+Although the facts of this case are more fully described in Lord Phillips judgment, the appeal to my mind must necessarily be decided by reference to the bare scenario already outlined, not the many surrounding details that can all too easily obscure rather than clarify the real issue arising.
+And to my mind the all important consideration here is that both A and B were intentionally engaged in a potentially lethal unlawful gunfight (a shoot out as it has also been described) in the course of which an innocent passerby was killed.
+The general public would in my opinion be astonished and appalled if in those circumstances the law attached liability for the death only to the gunman who actually fired the fatal shot (which, indeed, it would not always be possible to determine).
+Is he alone to be regarded as guilty of the victims murder? Is the other gunman really to be regarded as blameless and exonerated from all criminal liability for that killing? Does the decision of the Court of Appeal here, allowing As appeal against his conviction for murder, really represent the law of the land?
+To my mind the answer to these questions is a plain no.
+Realistically this case is indistinguishable from the succession of authorities establishing criminal liability on the part of anyone who willingly involves himself in the use of unlawful violence between protagonists intent on killing or seriously injuring each other, be they duellers, prize fighters or sado masochists see respectively R v Young & Webber (1838) 8 C & P 644, R v Coney (1882) 8 QBD 534 and R v Brown (Anthony) [1994] 1 AC 212.
+It is the very purpose of those engaging in these various activities that injuries will occur.
+The suggestion that certain of the perpetrators of such consensual violence, merely because they are also its prospective victims, cannot be liable for it, whether as principals or accessories by virtue of the decision in R v Tyrrell [1894] 1 QB 710 (discussed by Lord Phillips and Lord Judge at para 18 of their judgment), cannot be right.
+The principle underlying criminal liability for duelling, prize fighting and so forth is not to be understood simply as the protection of those most directly at risk of the injuries intended.
+Rather it is the protection of society generally from the damaging consequences of such injuries and the discouragement of violent conduct as a whole.
+Another powerful illustration of the principle (discussed by Lord Phillips and Lord Judge at para 52) is the law with regard to suicide (modified although that now is).
+Such being the rationale for criminal liability in this line of cases, how could the principle not encompass also the present case? Insofar as there are factual differences between this case and an old fashioned duel most notably the absence here of the civilities and formalities characterising a duel and the spur of the moment nature (if such it was) of the decision here to engage in a gunfight (ie to shoot and, inevitably, be shot at) none of these suggest any lesser criminality for whatever injuries may result than in the case of a duel itself.
+Quite the contrary, indeed.
+The public interest in criminalising the violence engaged in is yet more obvious: here there were others about so that the risk of harm was by no means confined merely to the protagonists themselves.
+For my part I am not disposed to analyse As liability for Cs murder here in accessory terms as the aider or abetter, counsellor or procurer of Bs attempt to kill him (A himself) whose liability for Cs death thus arises, Tyrrell constituting no obstacle, under the doctrine of transferred malice.
+Rather it seems to me that A is liable for Cs murder as a principal a direct participant engaged by agreement in unlawful violence (like a duel, a prize fight or sado masochism) specifically designed to cause and in fact causing death or serious injury.
+But whichever analysis is adopted, As liability for Cs murder seems to me clear and I would regard our criminal law as seriously defective were it otherwise.
+Does it follow that criminal responsibility for death would attach as widely as was envisaged by the Court of Appeal in this case, and which so plainly concerned them as a matter of policy (see paras 74 and 75 of the judgment below, cited in full by Lord Phillips and Lord Judge at para 28 of their judgment)? In my judgment not. In the scenario there described it could not be said, as here clearly it can, that the very purpose of such a fight is that death or serious injury shall result.
+For these reasons I too would answer the certified question in the affirmative, allow this appeal and restore the respondents conviction for murder.
+LORD CLARKE
+Lord Phillips and Lord Judge have set out the facts in some detail.
+I shall not therefore repeat them.
+Lord Brown says at para 68 that the all important consideration here is that both the respondent and Bandana Man were intentionally engaged in a potentially lethal unlawful gunfight or shoot out, in which each intended to kill or seriously injure the other.
+I agree that there was evidence upon which the jury could so conclude.
+It is not in dispute that if they had agreed to fight a duel with guns and either had inadvertently shot and killed a passer by in the course of the duel they would both be guilty of murder.
+It follows, as I see it, in agreement with Lord Phillips, Lord Judge and Lord Brown, that if the respondent and Bandana Man agreed to the shoot out, they were both guilty of murder, even though the victim was killed by a shot fired by Bandana Man and not by the respondent and even though Bandana Man intended to kill or seriously injure the respondent who was the other party to the agreement.
+In so far as the trial judge, Cooke J, reached a different conclusion, I respectfully disagree.
+As I see it, this analysis does not depend upon a conclusion that the respondent was aiding, abetting, counselling or procuring Bandana Man but simply on the proposition that the victim was shot and killed in the course of the respondent carrying out the agreement between the two men as principals to shoot and be shot at, just as in a duel.
+In a passage quoted by Lord Phillips and Lord Judge at para 21 the trial judge, Cooke J, rejected the submission that the respondent actively encouraged Bandana Man to shoot at him.
+He concluded that, by shooting at Bandana Man, the respondent might have provoked further firing but he did not encourage it.
+I agree that there is a distinction in principle between provoking a person to do something and encouraging or aiding and abetting him to do it.
+The question is whether the judge directed the jury correctly.
+That depends upon the language he used.
+The relevant passage is quoted by Lord Phillips and Lord Judge at para 23.
+The whole passage is important but the critical parts seem to me to be these: Where a criminal offence is committed by two or more people, each of them may play a different part in that offence, but if they are in it together as part of a joint plan or joint agreement to commit it, each is guilty of the planned offence.
+The words plan or agreement that I have just used do not mean that there has to be any formality about it.
+An agreement to commit an offence may arise on the spur of the moment.
+Nothing needs to be said at all.
+It can be made with a nod or a wink or just a knowing look or by taking the first step in committing an offence in which the other person then joins, so that it can be inferred from their behaviour.
+Now here it is said by the prosecution that Bandana Man and the defendant planned to use unlawful violence towards another by having a shoot out, whether that plan was made beforehand and the meeting was pre arranged or was made on the spur of the moment when they saw each other and fired at each other from the steps and the car respectively.
+If you are sure that Bandana Man and the defendant joined together to commit such unlawful violence by having a gunfight, whether pre planned or whether on the spur of the moment on the top of the steps and the side of the car, and that this joint enterprise came into being before Magda was killed by a shot from Bandana Man, then the defendant would be guilty of murder also, along with Bandana Man, provided the other requirements are satisfied.
+So if you are sure that Bandana Man and the defendant were in a joint enterprise to cause an affray, to use unlawful violence against each other by having a gunfight and by firing at each other, whether this joint enterprise was the result of a pre planned meeting or arose on the spur of the moment when they saw each other, and that in the course of that joint enterprise fight, Magda was murdered by Bandana Man on the basis of transferred malice, as I have explained it to you, and that the defendant realised and the prosecution say that he must have realised that in the course of their joint enterprise gunfight, Bandana Man might kill with the requisite intention for murder, then the defendant would also be guilty of murder.
+As Lord Phillips and Lord Judge have explained, the judge had ruled that it was open to the jury to find that the respondent and Bandana Man were engaged on a joint enterprise to commit an affray and that, if the jury found that the respondent foresaw that Bandana Man might shoot and kill an innocent passer by this would found a verdict of murder on the part of the respondent.
+I agree with Lord Phillips and Lord Judge (at para 42) that no issue of what they call parasitic accessory liability could arise here because it cannot be said that the two protagonists had a joint intention to commit violence of a type that fell short of the violence committed.
+Either they had no common intention, or the common intention was to have a shoot out, which involved each necessarily accepting that the other would shoot at him with the intention to kill or cause serious injury.
+It was thus open to the jury to find that there was an agreement to that effect which may have been made on the spur of the moment but was in any event made before Bandana Man shot and killed the victim, Miss Pniewska.
+My only concern has been whether, in the light of the judges ruling, he intended to direct the jury that they could convict if the common intention fell short of an intention to shoot and be shot at.
+However, I agree with the conclusion of Lord Phillips and Lord Judge at para 57 that it is not realistic to think that the jury could have found such a common intention and with their conclusion at para 58 that the direction the judge in fact gave was an unequivocal direction that the jury could only convict if they were sure that the protagonists had formed a mutual plan or agreement to have a gun fight in which each would attempt to kill or seriously injure the other.
+It follows that I would not accept the conclusions of the Court of Appeal to the contrary.
+At paras 55 to 60 Lord Phillips and Lord Judge return to the relevance of aiding and abetting.
+For the reasons I have given, I do not think that this is a case of aiding and abetting.
+It is a case of an agreement to shoot and be shot at just like the agreement between the principal protagonists to a duel.
+It does not seem to me that any assistance is to be gained by a consideration of the position of the seconds at a duel or of those present at a duel or a prize fight.
+In reaching these conclusions, I entirely agree with Lord Browns conclusions at paras 69 to 71.
+Like him, I am not disposed to analyse the respondents liability for murder in accessory terms but as a principal to a joint enterprise (that is an agreement) to engage in unlawful violence specifically designed to cause death or serious injury, where death occurs as a result.
+I would be inclined to describe this as a form of principal and not secondary liability, but if it is a form of secondary liability, so be it.
+I also agree with Lord Brown that such a conclusion is consistent with public policy and, for the reasons he gives at para 72, does not extend criminal responsibility for death as widely as the Court of Appeal envisaged at paras 74 and 75 of their judgment.
+For these reasons, I too would allow the appeal and restore the respondents conviction for murder.
+By way of postscript I would like to mention another possible basis of liability for murder which was touched upon in argument.
+It arises out of a consideration of the decision of the Court of Appeal in R v Pagett (1983) 76 Cr App Rep 279 to which Lord Judge drew attention in the course of the argument.
+It appears to me to be at least arguable that it was or would have been open to the jury to conclude that one of the effective causes of the death of the victim was the respondent shooting at Bandana Man.
+This is on the basis that it provoked (or caused) Bandana Man to shoot back with intent to kill or cause serious harm to the respondent as a result of which the victim was shot and killed.
+This analysis does not depend upon the respondent and Bandana Man being parties to a joint enterprise.
+The argument to the contrary would be that the sole cause of the death of the victim was that she was shot by Bandana Man and that the fact that he may have been returning fire directed at him by the respondent is irrelevant.
+The argument would be that, even if Bandana Man would not have shot and killed the victim if he had not been shot at by the respondent, the deliberate and criminal act of Bandana Man in shooting back and killing the victim was a novus actus interveniens which broke the chain of causation between the shots fired by the respondent and the death of the victim.
+In Pagett the appellant shot at police officers who were attempting to arrest him for various serious offences.
+The appellant had with him a 16 year old girl who was pregnant by him.
+Against her will he used her body to shield him from any retaliation by the officers.
+The officers returned his fire and as a result the girl was killed.
+The appellant was charged with her murder.
+The trial judge left both murder and manslaughter to the jury.
+The appellant was acquitted of murder but convicted of manslaughter.
+In the Court of Appeal, which comprised Robert Goff LJ and Cantley and Farquarson JJ, the appellant challenged the judges directions on causation.
+The judgment of the court was given by Robert Goff LJ.
+It was held that it was for the judge to direct the jury as to the relevant principles relating to causation and then leave it to the jury to decide whether or not, in the light of those principles, the relevant causal link had been established.
+In the rare case in which it was necessary to direct the jurys minds to the question of causation, it was usually enough to direct them simply that in law the accuseds act need not be the sole cause, or even the main cause, of the victims death, it being enough that the act contributed significantly to that result.
+However, Robert Goff LJ said this at p 288: Occasionally a specific issue of causation may arise.
+One such case is where, although an act of the accused constitutes a causa sine qua non of (or necessary condition for) the death of the victim, nevertheless the intervention of a third person may be regarded as the sole cause of the victim's death, thereby relieving the accused of criminal responsibility.
+Such intervention, if it has such an effect, has often been described by lawyers as a novus actus interveniens.
+We are aware that this time honoured Latin term has been the subject of criticism.
+We are also aware that attempts have been made to translate it into English; though no simple translation has proved satisfactory, really because the Latin term has become a term of art which conveys to lawyers the crucial feature that there has not merely been an intervening act of another person, but that that act was so independent of the act of the accused that it should be regarded in law as the cause of the victim's death, to the exclusion of the act of the accused.
+At the risk of scholarly criticism, we shall for the purposes of this judgment continue to use the Latin term.
+The decision in Pagett is however instructive: see pp 291 292.
+The judge directed the jury that, in order to convict the appellant, it was necessary that they should find both that he fired at the police officers and thereby caused them to fire back and that he used the girl as a shield by force and against her will.
+The court held that that direction was generous to the appellant because either of those acts would have constituted the actus reus, whether of murder or manslaughter causing the victims death.
+So, as Robert Goff LJ put it at p 291, if the jury were sure that, if the victim was killed by a shot fired from the gun of a police officer who, acting in reasonable self defence, fired his gun in response to a lethal attack by the appellant, it would be open to them to convict him of murder or manslaughter as the case may be.
+This case is not on all fours with Pagett because Bandana Man was not acting in reasonable self defence.
+However, once the respondent became aware that Bandana Man had a gun and was willing to use it, even assuming that there was no joint enterprise, it was undoubtedly foreseeable that, if the respondent continued shooting at Bandana Man, he would shoot back with intent to kill him or cause serious harm.
+Indeed, the jurys verdict shows that the respondent foresaw precisely that.
+In these circumstances, it was open to the jury to conclude that the respondents firing at Bandana Man was a cause of the latter shooting back.
+It was the very thing that might have been expected.
+There are of course many cases in the books which consider the correct approach to the suggestion that there has been a novus actus interveniens.
+Many of them are claims in tort but the principles seem to me to be much the same.
+I refer only to the well known judgment of Lord Wright in the Court of Appeal in The Oropesa [1943] P 32.
+After noting at p 37 that human action does not itself sever the chain of causation and referring to a number of the cases, Lord Wright said at p 39: To break the chain of causation it must be shown that there is something which I will call ultroneous, something unwarrantable, a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extraneous or extrinsic.
+I doubt whether the law can be stated more precisely than that.
+To my mind, the decision by Bandana Man to shoot at the respondent was not extraneous or ultroneous but the very thing that the respondent must have expected.
+The mere fact that the immediate cause of the death was a criminal and deliberate act on the part of Bandana Man does not as a matter of law break the chain of causation: see eg, in the context of tort, Gray v Thames Trains Ltd [2009] EWHL 33, [2009] 1 AC 1339 per Lord Hoffmann at paras 27 29 and Corr v IBC Vehicles Ltd [2008] UKHL 13, [2008] AC 884.
+All depends upon the circumstances of the particular case.
+In these circumstances, as I see it, the case could have been left to the jury on the basis that it was open to them to hold that the respondent was guilty of murder if they were sure that his act in shooting at Bandana Man was a cause of Bandana Man shooting at him with intent to kill him or cause him serious harm and the victim was killed as a result.
+It seems to me to be very likely that the jury would have concluded, as Robert Goff LJ put it, that the respondents act in shooting at Bandana Man contributed significantly to Bandana Man shooting at him with intent to kill or seriously injure him and thus to his killing the victim.
+However, since the case was not put to the jury on this basis, I would not allow this appeal on the basis of causation but on the basis discussed in paras 74 to 82 above.
+LORD DYSON
+The facts have been fully set out by Lord Phillips and Lord Judge.
+Several possible bases for upholding the respondents conviction call for consideration.
+The first is the basis on which the case was left by the judge to the jury and on which they convicted.
+This is that the respondent and Bandana Man participated in the commission of an affray and that in the course of it Bandana Man committed an offence (murder) which the respondent had foreseen he might commit.
+Like Lord Phillips and Lord Judge, I shall adopt Sir John Smiths phrase of parasitic accessory liability for this.
+The second is that the respondent aided and abetted Bandana Man to shoot at him (by encouraging him to do so).
+This is a basis on which Lord Phillips and Lord Judge would uphold the conviction, although in his ruling the judge said that his view of the facts was that the respondent did not encourage Bandana Man to shoot at him and that accordingly he would not leave the issue of aiding and abetting to the jury.
+The third basis is that the respondent and Bandana Man were liable as joint principals for the murder.
+This is the basis on which Lord Brown and Lord Clarke would uphold the conviction.
+Lord Clarke has suggested a fourth possible route, namely that the respondent caused Bandana Man to shoot at him and therefore to kill Magda Pniewska.
+Parasitic accessory liability
+The ingredients for parasitic accessory liability are that two parties participate in the commission of crime A and, in the course of committing it, D1 commits crime B which D2 foresees that he might commit.
+The Court of Appeal rejected this as a basis for upholding the conviction in the present case on the grounds that it was necessary to show that the respondent and Bandana Man agreed to commit the affray and shared a common purpose in committing it (para 51).
+They said (para 59) that it was not realistic to say that they acted in concert to cause fear; they acted independently and antagonistically in a manner which did so.
+Absent a shared purpose to shoot and be shot at, the submission made by the appellant was correct that there was no room on the facts for any other common purpose.
+The jury was never asked to confront the question whether the shared purpose was not only to shoot, but to be shot at.
+I agree with the comments by Professor Ormerod in R v Gnango [2011] Crim LR 151 and by Professor Virgo in The doctrine of joint enterprise liability Archbold Review, Issue 10, 14 December 2010 that, in order to establish parasitic accessory liability, there was no need for the prosecution to prove that there was a common purpose that each man intended to shoot and to be shot at.
+It was sufficient to establish a common purpose to commit an affray.
+Consequently, a common purpose to fight or threaten a fight in a public place would be a sufficient common purpose to engage the parasitic accessory liability principle.
+But at paras 42 and 43, Lord Phillips and Lord Judge have identified a different flaw in the parasitic accessory liability argument.
+They say that there is no room for the application of this principle in the present case, because on the facts of this case it is artificial to treat the intention to have an affray as separate from the intention to have a potentially homicidal shooting match.
+I agree.
+There is no reason in general why the parasitic accessory liability principle cannot be applied where crime A is affray and crime B is murder.
+All that is required is proof of (i) a common purpose to commit an affray which is shared by D1 and D2 in the sense that they have agreed to commit the offence and (ii) a murder committed by D1 in the course of the affray the commission of which is foreseen as a possibility by D2.
+Suppose, for example, that a group of youths is involved in a fist fight in a public place and they are all aware that one member of the group is armed with a knife.
+Let us further suppose that they are all guilty of causing an affray and that the youth who has the knife uses it with the intention to kill or cause really serious harm to kill another member of the group.
+All the members of the group who foresee that he might use the knife to commit a murder would also be liable for the murder.
+The fact that they were also guilty of an affray would be no bar to their liability for murder.
+On the facts of this case, however, the Crown chose to put their case on the basis that the affray was the use of unlawful violence in a public place by having a gun fight and by firing at each other (summing up p 15 16).
+I agree with Lord Phillips and Lord Judge that the way that the Crown chose to put its case left no room for the application of the parasitic accessory liability principle here.
+Aiding and abetting
+The Crown sought to persuade the judge to leave the case to the jury on the alternative basis that, by shooting at Bandana Man, the respondent encouraged him to shoot back at him and fire the fatal shot; and that he was guilty of the murder of Ms Pniewska as an accessory and by application of the transferred malice principle.
+The judges view of the facts was that this was not a route open to the jury to finding the respondent guilty of murder.
+As he said in his ruling, in reality on the evidence, [the respondent] fired at Bandana Man in the hope of killing him or causing him grievous bodily harm, frightening him, or arguably, in self defence.
+He cannot be said to have encouraged the other to fire back, whatever the order of shots as the jury might ultimately find them to be.
+He might have provoked further firing, but he did not encourage it.
+Despite the judges declared intention (as expressed in his ruling) not to leave aiding and abetting to the jury, Lord Phillips and Lord Judge say that a basis on which the jurys verdict can be upheld is that they must have found that the respondent aided and abetted Bandana Man to shoot at him with intent to kill or cause really serious harm.
+At para 59 they draw an analogy with a duel and a prize fight.
+If the jurys view of the facts was that this case was indeed analogous to a duel (ie that the respondent and Bandana Man had a common purpose to shoot and be shot at), then I agree with the reasoning of Lord Phillips and Lord Judge.
+It is important to distinguish between a combat which is analogous to a duel and a mere fight.
+An essential element of the former is an agreement by the combatants to fight each other.
+They encourage each other to fight.
+The judge was right to distinguish between encouragement and provocation.
+If A shoots back at B because he has been provoked by Bs shooting to do so, that is very different from saying that A shoots back at B because he has been encouraged to do so pursuant to an agreement to have a shoot out.
+The question is whether the jury must have decided that the respondent and Bandana Man had a common purpose to shoot and be shot at and that by their words and/or conduct they encouraged each other to that end.
+The Court of Appeals view of the facts was that the respondent and Bandana man had no such common purpose: in other words, that this was not analogous to a duel.
+That was also the view of the judge as expressed in his ruling.
+But what matters, of course, is what the jury decided.
+That can only be determined by a consideration of their verdict in the light of the summing up, which must be interpreted in a sensible way and without regard to any ruling that preceded it (of which the jury would have been ignorant).
+What counts is what the judge said in his summing up, and not what he intended to say or what he intended the words that he used to mean.
+But where it is suggested that a summing up bears a meaning which differs from what the judge intended, it must be scrutinised with particular care.
+In his summing up, the judge did not direct the jury on aiding and abetting.
+He did not ask them in terms to consider whether, by shooting back, the respondent encouraged Bandana Man in turn to shoot back at him with intent to do so.
+In view of his ruling, these omissions on the part of the judge were not by an oversight: they were quite deliberate.
+But the question is whether, although the issue of aiding and abetting by encouragement was not before the jury in terms, they showed by their verdict on the issue that was before them (parasitic accessory liability) that they were sure that the respondent and Bandana Man had a common purpose to shoot and be shot at and encouraged each other to give effect to that purpose.
+This question has caused me considerable anxiety, not least because (i) this was a murder charge, (ii) a finding of aiding and abetting by encouragement did not accord with this careful judges assessment of the facts and (iii) he did not direct the jury explicitly on the aiding and abetting issue.
+But I have been persuaded by the reasoning of Lord Phillips and Lord Judge that the jury must nevertheless have been satisfied that there was an agreement between the respondent and Bandana Man to shoot and be shot at and that they encouraged each other to carry that agreement into effect.
+The jury were directed that they had to be sure that the respondent and Bandana Man planned to use unlawful violence towards each other by having a shootout whether that plan was made beforehand and the meeting was pre arranged or was made on the spur of the moment when they saw each other and fired at each other from the steps and the car respectively.
+The judge gave the standard direction for joint enterprise (in the context of parasitic accessory liability) that the offence (in this case affray by gunfight) had to be the joint commission of an offence by two or more people who are in it together as part of a joint plan.
+In my view, a shootout pursuant to a plan must mean an exchange of fire pursuant to an agreement to shoot and be shot at; and persons who agree to shoot at each other must by virtue of their agreement intend to encourage each other to do so.
+It differs from a simple exchange of fire.
+Nor is it relevant that each of the participants hopes that his shot will prove fatal and that there will be no return of fire.
+The fact that the jury convicted the respondent of the murder of Ms Pniewska following the judges directions must mean that, if they had been asked in terms whether the respondent and Bandana Man (i) agreed to shoot and be shot at and (ii) thereby encouraged each other to that end (intending to do so), they would have answered both questions in the affirmative.
+In other words, the jury showed by their verdict that they considered that this was analogous to a duel.
+I would, therefore, uphold the conviction on the basis that the jury must have been satisfied that the respondent aided and abetted the murder of Ms Pniewska by encouraging Bandana Man to shoot at him in the course of the planned shootout.
+Liability as a joint principal
+This is the route favoured by Lord Brown and Lord Clarke and accepted as an alternative by Lord Phillips and Lord Judge.
+They say that the respondent is liable by reason of his participation by agreement in unlawful violence specifically designed to cause and causing death or serious injury.
+For the reasons that I have given, I am persuaded that the jury must have been sure that Bandana Man and the respondent exchanged fire pursuant to an agreement to have a shoot out, ie an agreement to shoot and be shot at.
+That is why in my view Lord Phillips and Lord Judge are right to say that in this case the difference between holding the respondent liable as a principal to an agreed joint activity rather than as an accessory is not a difference of substance.
+Either way, the Crown had to prove that the respondent and Bandana Man agreed to shoot and be shot at with the necessary intent.
+It follows that, for the reasons I have given, the jury must have been sure that the respondent participated with Bandana Man in an agreed shoot out or agreement to shoot and be shot at with the necessary intent.
+Accordingly, if the jury had been asked whether the respondent was guilty of the murder of Ms Pniewska on the basis that he had acted in concert with Bandana Man in shooting at each other pursuant to an agreement to shoot and be shot at, in my view, in the light of the terms of the summing up, they would have answered that question in the affirmative.
+I would, therefore, uphold the conviction on this basis too.
+Causation
+Lord Clarke has suggested, as an alternative, that the respondent caused Bandana Man to shoot back at him and thereby contributed to the death.
+This way of putting the case was not left to the jury and causation was a matter for the jury to determine.
+Furthermore, we heard very little argument on this point.
+It seems to me that, if Bandana Mans act of shooting at the respondent was a free, deliberate and informed act, it broke the chain of causation between the respondents shooting at him and his shooting and killing Ms Pniewska: see R v Kennedy (No 2) [2007] UKHL 38; [2008] AC 269.
+As Professor Ormerod points out in his article (loc cit), it might be argued that Bandana Mans act of shooting was not a free, deliberate and informed act because he was acting in self defence.
+But that seems very difficult on the facts of this case.
+It might also be argued that, even if Bandana Man was acting in a free, deliberate and informed manner, that is irrelevant if he and the respondent were acting in concert: see R v Latif [1996] 1 WLR 104, 115.
+None of these issues was explored by the jury.
+I agree with Lord Clarke that we cannot uphold the conviction on the basis that the respondent caused Bandana Man to fire the fatal shot.
+Conclusion
+I would, therefore, allow the appeal and restore the conviction.
+In doing so, I wish to emphasise that the judge is not to be criticised for directing the jury in the way that he did.
+This was a very difficult case.
+I would add that, although I have disagreed with the analysis of the Court of Appeal, it contains a most useful discussion of some of the complex issues that arise in this area of the law.
+LORD KERR
+The respondent to this appeal, Armel Gnango, was convicted of the murder on Tuesday, 2 October 2007, of a 26 year old Polish care worker, Magda Pniewska.
+She had been walking home from her place of employment when she was killed by a single shot to the head.
+She was an entirely innocent young woman.
+Her death is an appalling tragedy.
+The shot which killed Ms Pniewska was fired by a person known throughout the proceedings by the somewhat unfortunate soubriquet of Bandana man.
+I shall refer to him as B. He and Gnango had exchanged fire and it was in the course of this that Ms Pniewska was shot.
+In their judgment, Lord Phillips and Lord Judge have outlined all the relevant facts and I need not dilate further on them.
+The Court of Appeal quashed the murder conviction.
+It certified a point of law of public general importance.
+Its terms have been set out by Lord Phillips and Lord Judge in para 1 of their judgment and it is unnecessary to repeat them.
+Various bases on which Gnango might or should be found guilty of the murder of Ms Pniewska have been canvassed in the course of argument and in the judgments of the other members of the court.
+I have had the great advantage of reading these judgments in draft form.
+Joint affray
+In paras 32 35 of their judgment, Lord Phillips and Lord Judge have traced the evolution of the statutory offence of affray from its common law origins.
+As he has pointed out, the Law Commission had recommended that the common law offence of affray should be preserved in an enactment and had suggested that it should be defined as the use or threat of unlawful violence by two or more persons against each other or by the use or threat of such violence by one or more persons against another.
+Although the government expressed satisfaction with this definition, there was a significant omission in the final form of the provision that appeared in the legislation from that proposed by the Law Commission.
+It contained no reference to the use or threat of violence by two persons against each other.
+Instead, section 3(1) dealt only with the basis of a single individuals guilt.
+A person was to be guilty if he used or threatened unlawful violence towards another.
+Lord Phillips and Lord Judge consider that the use of the words unlawful violence in subsection (2) of section 3, if given their natural meaning, would lead to the conclusion that two defendants could only be jointly liable of affray if they join in using violence against another.
+But it seems to me that this conclusion is the consequence not so much of the use of the words unlawful violence in subsection (2) as the unavoidable result of the requirement in subsection (1) that, for a person to be guilty of affray, he must have offered violence to another.
+Therefore, I have difficulty with Lord Phillips and Lord Judges conclusion that the joint offence of affray can be founded on the common product of individual conduct, if this is to be applied to the use of violence by two persons against each other.
+Using or threatening violence towards another must mean that in the case of a joint offence of affray the violence of those guilty of it is directed towards another person or other persons, not against each other.
+This may produce an anomalous result, as Lord Phillips and Lord Judge have suggested, but it seems to me to be the inescapable conclusion that section 3(1) impels.
+For a joint offence of affray to occur, the person represented by the word another in s 3(1) of the 1986 Act must be someone other than the person offering the violence.
+It may be correct, as Lord Phillips and Lord Judge have stated (in para 38), that there does not need to be a common intention for a joint offence of affray but the activity comprising the actus reus of the offence, to be capable of giving rise to joint liability, must be directed towards the same target.
+This is the unavoidable consequence of the stipulation that the violence must be used or threatened to another.
+On this analysis, Gnango and B committed separate offences of affray.
+A joint affray is not, in my opinion, available as a source of liability for Gnango.
+In any event for parasitic accessory liability to arise, Gnango and B would have to have a common intention to commit an affray, if affray is the crime on which Gnango and B are to be said to have jointly embarked.
+Whether or not a common intention is required for a joint offence of affray, it is most certainly required for parasitic accessory liability.
+Even if it were possible, therefore, for them to be convicted of joint affray without a common intention to commit that offence, for the offence to provide the basis of parasitic accessory liability, it would have to be proved that they had a shared intention.
+As Lord Phillips and Lord Judge stated in para 38, the Court of Appeal was right to hold that this form of liability depends on the existence of a common unlawful enterprise or purpose.
+Although I disagree with Lord Phillips and Lord Judge that there can be a joint affray based on violence offered by two protagonists to each other, I do agree with him that participation in a joint affray cannot automatically constitute a foundation for parasitic accessory liability.
+The essence of parasitic accessory liability is that there is a common purpose and in the course of furthering that common purpose, the principal goes beyond what was agreed but the secondary participant foresaw the possibility of this occurring.
+The sine qua non of parasitic accessory liability, therefore, is the existence of an common purpose.
+Aiding and abetting
+Lord Phillips, Lord Judge and Lord Dyson have concluded that, although it was not left to the jury by the trial judge, the effect of their verdict is that Gnango was guilty because he aided and abetted B to fire at him.
+This was on the basis that both shared a common intention to shoot at one another.
+In particular, each intended to shoot at the other and to be shot at by him.
+The Court of Appeal concluded that the jury was never asked to confront the question whether the shared common purpose was not only to shoot, but to be shot at (para 59 of the Court of Appeals judgment).
+This is unquestionably correct.
+The jury was not invited at any time during the judges carefully composed charge to address the question whether the shared intention included what seems to be the supremely important element of the avowed aiding and abetting of this offence the agreement to be shot at.
+The judge had refused to allow aiding and abetting to go to the jury because he considered that it could not reasonably be concluded that Gnango had encouraged B to fire at him.
+The mens rea of aiding and abetting is an intention by ones act to assist the principal in the commission of his offence.
+Thus at para 18 18 of Archbold 2011 edition: To establish aiding and abetting on the basis of encouragement, it must be proved that the defendant intended to encourage and wilfully did encourage the crime committed.
+Mere continued voluntary presence at the scene of a crime, even though it was not accidental, does not of itself necessarily amount to encouragement; but the fact that a person was voluntarily and purposely present witnessing the commission of a crime and offered no opposition, though he might reasonably be expected to prevent it and had the power to do so, or at least express his dissent, might in some circumstances afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted, but it would be purely a question of fact for the jury whether he did so or not: R v Clarkson, 55 Cr App R 445, Ct MAC.
+Since mere presence at the scene of a crime can in certain circumstances be enough to justify a finding of guilt, it is perhaps difficult to see why Gnangos remaining at the scene and firing the gun at B could not amount, in law, to encouragement.
+It seems likely, however, that the judge considered that the notion of someone encouraging another to fire at him was so at odds with common experience as to be unbefitting of the jurys consideration as a possible basis of liability for in his ruling he observed: it cannot be said, in my judgment, that the defendant actively encouraged [B] to shoot at him, and even if he did, it would be a real oddity for a victim of an attempted murder to be a secondary party to that attempt.
+Be that as it may, the above passage from Archbold makes clear that, to be satisfied that Gnango intended to assist or encourage B to shoot at him, the jury would have to address directly not only the question whether his actions did encourage B to do so, but also whether he intended that B should do so see also Archbold at 17 67, what needs to be proved is an intention to render assistance to another.
+If the jury was not invited to consider whether Gnango had that intention, the conclusion that their verdict admits of no view other than that Gnango intended to assist B in firing at him is somewhat startling and one which could only be reached after very careful examination of possible alternative explanations for the verdict.
+The judge told the jury that the prosecution case was that there was a plan on the part of Gnango and B to have what he described as a shoot out: Now here it is said by the prosecution that Bandana Man and the defendant planned to use unlawful violence towards [one] another by having a shoot out, whether that plan was made beforehand and the meeting was pre arranged or was made on the spur of the moment when they saw each other and fired at each other from the steps and the car respectively.
+A little later in his charge he gave this critical direction: If you are sure that Bandana Man and the defendant joined together to commit such unlawful violence by having a gunfight, whether pre planned or whether on the spur of the moment on the top of the steps and the side of the car, and that this joint enterprise came into being before Magda was killed by a shot from Bandana Man, then the defendant would be guilty of murder also, along with Bandana Man.
+At para 58 Lord Phillips and Lord Judge have said that this amounted to an unequivocal direction that the jury could only convict if they were satisfied that Gnango and B had planned to have a gun fight in which each would attempt to kill or seriously injure the other.
+He suggests that if the jury was satisfied of this, it meant in law that both were party not merely to his own attempt to kill or seriously injure the other but to the others attempt to kill or seriously injure him.
+Lord Dyson expressed essentially the same view at para 101 where he said: In my view, a shootout pursuant to a plan must mean an exchange of fire pursuant to an agreement to shoot and be shot at; and persons who agree to shoot at each other must by virtue of their agreement intend to encourage each other to do so.
+The terms of any plan are critical to any conclusion that the parties to it must be taken to have encouraged each other to shoot.
+But an anterior question must be addressed.
+Can it be said that solely because there was an exchange of fire, this must be on foot of a plan? Agreement to shoot it out with an opponent, if reached in advance, would be such a plan although there is no evidence that this is what happened here.
+But where there has been what has been described as a spontaneous agreement to engage in a shoot out, the question arises whether this can truly be said to be the product of an agreement in any real sense.
+Is it not at least as likely to be the result of a sudden, simultaneously reached, coincident intention by the two protagonists to fire at each other? I do not consider that because there was a shoot out (whatever that term may mean) and because the jury were asked to consider that Gnango and B joined together to commit unlawful violence, by returning a verdict of guilty, the jury must be taken to have concluded that there was a plan in the sense of an agreement between them.
+But even if the jurys verdict can be taken as evidence of their conclusion that there had been a plan or agreement between Gnango and B, does it follow that an element of that plan must be that they agreed to be shot at, as well as to shoot? Agreeing to a shoot out does not necessarily mean agreeing to be shot at.
+This is particularly so where the plan takes the form of (and here it could only take the form of) an instantaneous meeting of minds between Gnango and B on their first catching sight of each other on the occasion of the gunfight.
+That type of situation is quite different from a duel where participants meet at a pre arranged place and an appointed time.
+The essence of a duel conducted with firearms is that there should be an exchange of fire.
+The parties to the duel anticipate and may be said to impliedly consent to being fired on as well as firing.
+But there is no basis on which to infer that such was the intention of the two protagonists here, much less to conclude that the jurys verdict can only be consistent with such implicit intention on the part of Gnango and B. It is at least just as likely that neither agreed to be fired on and that both hoped that they would avoid that unpleasant eventuality by hitting the target with their own shot.
+Put shortly, when the only material that the jury had to go on was that there was a shoot out, it is, in my view, impossible to conclude that the finding of guilt can only be explained on the basis that it had been proved that there was a plan between Gnango and B to shoot and be shot at.
+Even if it were possible so to conclude, however, it does not follow that this amounted to an intention on the part of Gnango or B to assist or encourage each other to shoot.
+One might be alive to the very real risk that firing, if the target was not hit, would prompt return fire, but that is a significantly different thing from saying that this was encouragement to fire back.
+Being prepared to run the risk does not equate with encouraging an opponent to fire at you.
+Before, therefore, one could be confident that the jurys verdict meant that they had found it established that Gnango had intended to encourage B to fire, it would have been necessary for them to receive directions about that vital component of aiding and abetting.
+As the judge said, when ruling that he would not allow this to go to the jury as a possible basis of liability, on the evidence, the defendant fired at Bandana Man in the hope of killing him or causing him grievous bodily harm, frightening him, or arguably, in self defence.
+Being shot at was hardly likely to have been a desired outcome on the part of Gnango.
+Intending to encourage B to fire at him was even less likely.
+This point was made by Graham Virgo in an article, The Doctrine of Joint Enterprise Liability, on the Court of Appeals decision in this case which appeared in Archbold Review 2010 Issue 10, p 6: if the appellant had, by his act of shooting at the opponent, encouraged him to shoot back, if the appellant had foreseen that the opponent might shoot with the intention for murder and then the opponent's shot had accidentally hit and killed a third party, the appellant could be guilty of murder as an accessory by virtue of the transferred malice doctrine The only difficulty with this analysis relates to whether the appellant's shooting at the opponent could have been regarded as a positive encouragement to shoot back.
+Did the appellant want the opponent to shoot back at him or did he only want to kill or seriously injure the opponent? This is why the Court of Appeal's analysis of an intent to shoot and be shot at was relevant, but it was relevant to accessorial liability and not to the identification of a common purpose.
+On the facts it would have been difficult to establish such encouragement of the opponent to shoot back, but it is conceivable that such encouragement could be identified if the appellant intended some kind of duel.
+It is, of course, true that, in considering whether there was an intention to encourage, intent must be clearly distinguished from desire or motive.
+In a trilogy of cases, R v Moloney [1985] AC 905; R v Hancock [1986] AC 455; and R v Woollin [1999] 1 AC 82 the House of Lords held that intention is not restricted to consequences that are wanted or desired, but includes consequences which a defendant might not want to ensue, but which the jury find (a) are the virtually certain result of the defendants actions (barring some unforeseen intervention); and (b) are consequences which the defendant appreciated were virtually certain to occur.
+Before such an oblique intention could form the basis of a jurys verdict, of course, precise directions to this effect would have to be given.
+In the absence of a specific direction on Gnangos intention to encourage B to shoot at him, I do not consider that the verdict of the jury can be upheld on the basis that it was founded on their conclusion that he either had the requisite intention or that the virtually certain result of his firing at B was that he would return fire and that Gnango knew that this was virtually certain to occur.
+This is particularly so because there is an obvious explanation for the jurys verdict other than that they concluded that there had been a plan which included an intention on the part of Gnango and B to encourage the other to shoot at him.
+The judge had put to the jury that if they were satisfied that Gnango and B had participated by agreement in an affray, in the course of which Gnango foresaw that B might commit intentional grievous bodily harm or kill, he could be found guilty on that account.
+For the reasons given by Lord Phillips, Lord Judge and Lord Dyson, with which I agree, this form of parasitic accessory liability was not a basis on which the jury could convict.
+But it seems to be likely in the extreme that this is the basis on which they did convict.
+That being so, there was no occasion for them to consider whether the requisite intention on the part of Gnango to found a verdict of guilty on the basis of aiding and abetting was present.
+Nor can their verdict be considered to supply the necessary ingredients of liability on that basis.
+Liability as a joint principal
+It is important at the start of this discussion to recognise the clear distinction that must be drawn between the concepts of joint principal liability and joint enterprise.
+Joint principal offending is a species of primary liability.
+In Smith & Hogans Criminal Law (2011) 13th ed the following definition of joint principals is given: D1 and D2 are joint principal offenders where each does an act which is a cause of the actus reus.
+Unlike the position in a joint enterprise, no common purpose is required in order to render those who cause or contribute to a cause of the actus reus guilty as joint principals.
+What is required is that each must contribute by his own act to the commission of the offence with the necessary mens rea.
+By contrast, the doctrine of joint enterprise arises in situations where there are two offences, the first being that which has been jointly embarked on and the second the unplanned but foreseen offence committed by one of the participants alone.
+It is therefore par excellence a species of secondary liability as Hughes LJ explained in A, B, C and D (Joint Enterprise) [2010] EWCA Crim 1622; [2011] QB 841 where he said at para 37: It is necessary to remember that guilt based upon common enterprise is a form of secondary liability.
+The principle is that D2 is implicated in the guilt of D1 not only for the agreed crime A but for the further crime B which he foresaw D1 might commit in the course of A.
+This form of liability therefore arises only where D1 has committed the further crime B.
+The two models are therefore, if not mutually exclusive, at least conceptually distinct.
+To speak of joint principal offenders being involved in a joint enterprise is, at least potentially, misleading.
+The essential ingredient for joint principal offending is a contribution to the cause of the actus reus.
+If this is absent, the fact that there is a common purpose or a joint enterprise cannot transform the offending into joint principal liability.
+The actus reus in this case was the killing of Ms Pniewska.
+To be guilty of that offence as a joint principal, it would have to be shown that Gnango caused or contributed to a cause of her death.
+With great respect to the views of Lord Brown and Lord Clarke, it is not sufficient that he be shown to be engaged by agreement in violence designed to cause death or serious injury.
+The crucial question is whether he caused or contributed to the death of the victim.
+This is not an issue which was put to the jury and a conclusion as to whether Gnangos actions caused or contributed to Ms Pniewskas death cannot be inferred from their verdict.
+In any event, major difficulties of proof lie in the way of a case that Gnangos actions were an effective cause of the killing of the victim.
+As a thesis it depends on the proposition that B fired the fatal shot because he was caused to do so by Gnango firing on him.
+That proposition faces the immediate problem that B fired on Gnango first.
+It is, one might suppose, possible to assert that, notwithstanding this, Bs continued firing at Gnango was caused by the latters return of fire.
+But that claim encounters the difficulty that was identified by Lord Bingham in R v Kennedy No 2 [2008] 1 AC 269 where he said at para 14: The criminal law generally assumes the existence of free will.
+The law recognises certain exceptions, in the case of the young, those who for any reason are not fully responsible for their actions, and the vulnerable, and it acknowledges situations of duress and necessity, as also of deception and mistake.
+But, generally speaking, informed adults of sound mind are treated as autonomous beings able to make their own decisions how they will act Thus D is not to be treated as causing V to act in a certain way if V makes a voluntary and informed decision to act in that way rather than another.
+There are many classic statements to this effect.
+In his article Finis for Novus Actus? [1989] CLJ 391, 392, Professor Glanville Williams wrote: I may suggest reasons to you for doing something; I may urge you to do it, tell you it will pay you to do it, tell you it is your duty to do it.
+My efforts may perhaps make it very much more likely that you will do it.
+But they do not cause you to do it, in the sense in which one causes a kettle of water to boil by putting it on the stove.
+Your volitional act is regarded (within the doctrine of responsibility) as setting a new chain of causation going, irrespective of what has happened before.
+In chapter XII of Causation in the Law, 2nd ed (1985), p 326, Hart & Honor wrote: The free, deliberate, and informed intervention of a second person, who intends to exploit the situation created by the first, but is not acting in concert with him, is normally held to relieve the first actor of criminal responsibility.
+This statement was cited by the House with approval in R v Latif [1996] 1 WLR 104, 115.
+The principle is fundamental and not controversial.
+If B fired at Gnango first, it seems to me highly questionable (at least) that Gnangos returning fire caused B to fire again.
+The first shot surely betokened an intention on the part of B to fire at and to hit Gnango, irrespective of whether Gnango fired back.
+It might be said, to borrow the words of Professor Glanville Williams, that Gnangos firing on B made it much more likely that B would fire again, but that is not enough to show that B was caused to fire because of Gnangos shot.
+I do not consider, therefore, that Gnango can be guilty of the murder of Ms Pniewska as a joint principal.
+Conclusion
+I would dismiss the appeal.
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+This appeal is concerned with the meaning and application of the client money rules and client money distribution rules contained in Chapter 7 of the Client Assets Sourcebook (CASS 7) issued by the Financial Services Authority for the safeguarding and distribution of client money in implementation of the Markets in Financial Instruments Directive 2004/39/EC (MiFID).
+The central feature of the client money rules is the requirement that CASS 7 imposes on MiFID firms to segregate money that they receive from or hold for or on behalf of their clients in the course of MiFID business by placing it into a client money account so that it is kept apart from the firms own money.
+Under English law the mere segregation of money into separate bank accounts is not sufficient to establish a proprietary interest in those funds in anyone other than the account holder.
+A declaration of trust over the balances standing to the credit of the segregated accounts is needed to protect those funds in the event of the firms insolvency.
+Segregation on its own is not enough to provide that protection.
+Nor is a declaration of trust, in a case where the clients money has been so mixed in with the firms money that it cannot be traced.
+So segregation is a necessary part of the system.
+When both elements are present they work together to give the complete protection against the risk of the firms insolvency that the client requires.
+That is why rule 14.1 of the Solicitors Regulation Authority Accounts Rules 2011 provides that client money must without delay be paid into a client account, except when the rules provide to the contrary.
+Rule 6.3.1(b) of the Law Society of Scotland Practice Rules 2011 contains a provision to the same effect.
+The Law Society of Scotlands guidance to rule 6.3.1(b) states that without delay normally means on the same day.
+These elementary principles were adopted by section 139 of the Financial Services and Markets Act 2000 (the 2000 Act) when the rule making powers conferred on the FSA relating to the handling of client money were being formulated.
+CASS 7 provides for the segregation of client money, and it creates a statutory trust over client money to support and reinforce the purposes of segregation.
+This ensures that client money is kept separate and not used for the firms own purposes.
+It protects the segregated funds from the claims of the firms creditors in the event that protection is most needed, which is the firms insolvency.
+It also enables client money to be returned to the clients without delay, as it is beyond the reach of the firms creditors.
+If the system works in the same way as it does under the accounts rules that regulate the activities of solicitors, the clients whose money has been segregated will be assured that their client money entitlement is not depleted by having to share the money in the clients account with others who may have claims against the firm, such as those whose client money has not been segregated and those for whom the firm does not hold any client money at all.
+The rules that CASS 7 sets out are complex, and in the present case they have given rise to many problems.
+This appeal raises three issues that are of fundamental importance to the way the system that CASS 7 lays down is to be worked out.
+The first is when does the statutory trust arise? Does it arise only when the money has been placed in a segregated client account, or is the money subject to the trust as soon as it is in the firms hands irrespective of where it puts the money? If the latter is the case, the trust will extend to any client money that is held in the firms house account and has not yet been segregated as well as to money that has been segregated.
+The second and third issues are concerned with what happens to client money in the event of the failure of the firm (described by CASS 7 as a primary pooling event).
+The second is directed to the rules that CASS 7 lays down for the way client money is to be distributed should that event occur.
+It asks whether these arrangements apply to money that is identifiable as client money in the firms house accounts or only to money that is in the segregated client accounts.
+The third asks whether the right to participate in the pool that is to be distributed rateably to the clients is given only to those clients for whose benefit client money is held in the segregated client accounts, or whether a client whose money ought to have been segregated but was being held in a house account when the event occurs is entitled to participate in that money too.
+I have had the great advantage of reading in draft Lord Walkers judgment, in which the background to the issues that we have to consider is so fully and carefully set out.
+Those who are interested will find most of the provisions of CASS 7 that are relevant to those issues set out in appendix 1 to the judgment of Arden LJ in the Court of Appeal [2011] Bus LR 277, 325.
+There are some omissions, but they are not important.
+All the provisions that Lord Walker refers to in his analysis of the points that matter are to be found there.
+As to the first issue, which is the time at which the statutory trust arises, I agree for the reasons Lord Walker gives that the trust arises on receipt of the money.
+But I have also found it helpful to consider the issue from the position of Scots law.
+As Lord Walker has explained in para 47, it is clear that CASS 7 was intended when transposing the Directives into national law to make use of the concept of holding money on trust.
+But this is expressed by section 139(1) of the 2000 Act to be the position in relation to England and Wales and Northern Ireland only.
+Section 139(3) provides: In the application of subsection (1) to Scotland, the reference to money being held on trust is to be read as a reference to its being held as agent for the person who is entitled to call for it to be paid over to him or to be paid on his direction or to have it otherwise credited to him.
+This provision is carried forward into the description of the statutory trust in section 7.7 of CASS which Lord Walker has quoted in full in para 41, below.
+The wording of section 139(3) might be taken as an indication that the concept of trust is unknown in Scots law.
+That would be a misconception.
+There certainly is a law of trusts in Scotland.
+This has been recognised from time to time by statute: see, for example, the Trusts (Scotland) Act 1961 and section 17(5) of the Trustee Investments Act 1961.
+There are significant differences between English and Scots law as to its nature and origin.
+For example, the law of Scotland does not accept that a relationship in trust can arise in equity.
+It has a more limited basis.
+Its origin can be traced back to mandate or commission, which is part of the law of obligations: Stair, Institutes of the Law of Scotland (1693), I.12.17.
+Various attempts have been made to explain the basis for the concept.
+They have not been successful, as its nature is considered to be of too anomalous a character to admit of a precise definition.
+But it can at least be said that the duty that the trustee owes to the beneficiary is fiduciary in character: Wilson and Duncan, Trusts, Trustees and Executors 2nd ed, (1995), para 1 63.
+In Council of the Law Society of Scotland v McKinnie 1991 SC 355 a question arose as to the character of funds held by a solicitor to the credit of his client account as at the date of his sequestration under section 31(1) of the Bankruptcy (Scotland) Act 1985.
+Delivering the opinion of the court Lord President Hope said at pp 358 359: The order of priority in distribution which is prescribed by section 51 of the 1985 Act leaves no room for doubt that if sums at credit of the clients account were to be regarded as having vested in the permanent trustee, these funds would be exposed to the claims of all those entitled to a ranking on the debtors estate.
+But property held on trust by the debtor for any other person lies outside this scheme of distribution altogether.
+Section 33(1)(b) of the Act provides that such property shall not vest in the permanent trustee.
+So if sums at credit of the clients account are to be regarded as having been held by the solicitor on trust on his clients behalf, it must follow that these sums do not vest in the permanent trustee on the sequestration of the solicitor, and accordingly that the judicial factor was right to resist the instruction by the accountant that the sums held on clients account in this case were to be made over to the permanent trustee.
+We are in no doubt that sums held to the credit of the clients account are fiduciary in character and that for this reason they are sums to which section 33(1)(b) of the 1985 Act applies.
+It is well settled that a solicitor stands in a fiduciary relation to his client in regard to all sums of money which he has received on the clients behalf.
+Authority for the proposition in the last sentence of that passage is to be found in Jopp v Johnstons Trustee (1904) 6 F 1028.
+In that case a law agent sold shares belonging to his client Mrs Jopp and lodged the money that he received for them in his own bank account, which at that time was in credit.
+He later died insolvent and his estates were thereafter sequestrated.
+It was held that, as he was in the position of a trustee in regard to the sum realised by the sale of his clients shares, the amount in his account at his death which represented the trust money still belonged to his client and did not form part of his sequestrated estate.
+The case was concerned principally with the problem that had been created by the fact that the clients money had been mixed by the law agent with his own funds.
+But some passages in the opinion of Lord Justice Clerk Macdonald are of particular interest in the present context.
+At p 1034 the Lord Justice Clerk said: Now, there can be no doubt whatever that throughout the whole time during which the price of these shares was dealt with, Mr Johnston stood in a fiduciary relation to Mrs Jopp.
+At p 1035 he referred to, and adopted, the solution to the problem that was to be found in English law: I have no difficulty in holding with Sir George Jessel MR in the case of In re Halletts Estate (1880) LR 13 Ch Div 696, 719, that, as he quoted from Lord Hatherley, if a man mixes trust funds with his own, the whole will be treated as [the] trust property, except [] so far as he may be able to distinguish what is his own.
+It is no doubt true that Mr Johnston was not in the strict sense of the word Mrs Jopps trustee.
+He was undoubtedly, while he held the money, under the obligations of trust, the obligation to hold it for another and to deal with it solely for that others interest.
+After referring to a passage in the judgment of Thesiger LJ in Hallett at p 723 to the same effect, he added these words: Now, here, whatever Mr Johnston did, the fiduciary relation of agent undoubtedly subsisted, and to have uplifted the whole of these deposit receipts and used the contents for his own purposes would undoubtedly have been an absolute breach of his duty and the fiduciary position in which he stood.
+I think that these passages tell us two things.
+The first thing is that, while Scots law has no difficulty in using the word trust in this context, the concept is more accurately and precisely analysed by referring to the fiduciary duty that the agent owes to his client with regard to money that he holds on his clients behalf.
+So the fact that a statutory trust is rejected by section 139(3) of the 2000 Act in favour of agency in the application of section 139(1) to Scotland, while at first sight surprising, does appear to have some basis in the language that was used to explain the relationship in Jopp v Johnstons Trustee.
+We were shown a copy of a letter by the Chairman of the Scottish Law Commission, Lord Drummond Young, to the Advocate General for Scotland dated 28 September 2010 in which the Advocate Generals attention was drawn to section 139(3) of the 2000 Act, to CASS 7.7.1G and to an almost identical provision which is to be found in Chapter 5.3 of CASS in respect of insurance moneys.
+Inquiries by the Commissions trust team of lawyers in HM Treasury had received a reply to the effect that the instructions for the 2000 Act did not disclose a policy reason for the choice of agency.
+It appeared that an identical provision in section 55(5) of the Financial Services Act 1986 had been adopted without any independent policy consideration being given to the matter when the 2000 Act was being prepared.
+The question was raised as to whether the CASS rules would achieve the intended level of client protection in the event of an insolvency north of the border.
+This brings me to the second point that can be taken from the passages that I have quoted from Jopp v Johnstons Trustee.
+It is directed to the question of how the agency approach that must be applied in Scotland can guide us towards a solution of the issues raised in this appeal.
+I would approach this question on the assumption that it was the intention of Parliament to provide the same level of client protection north of the border as was to be available in England and Wales and in Northern Ireland.
+This assumption is based on the fact that no policy reason has been disclosed for the different treatment that the legislation has laid down for the application of section 139(1) of the 2000 Act to Scotland.
+The explanation for the difference may lie with the Parliamentary draftsman in the Lord Advocates department.
+It is the kind of thing that would be picked up when he was checking through the legislation to see whether it should be expressed differently in the terminology of Scots law so as to achieve what he understood its effect to be in the other parts of the United Kingdom.
+The Lord Justice Clerks opinion in Jopp v Johnstons Trustee would have provided him with the terminology he was looking for.
+Returning then to the first issue, which is the time at which the statutory trust arises, the solution that would be arrived at under the agency approach is very simple.
+As Lord Justice Clerk Macdonald said in Jopp v Johnstons Trustee at p 1034, the agent stands in a fiduciary relation to his client throughout the whole time that the clients money is in his hands.
+The relationship from start to finish is one of agency.
+At no stage does the money cease to be the clients money and become the property of the agent.
+The fiduciary relationship which gives rise to the statutory trust arises on receipt of the money.
+There is no interval between the moment of receipt and the commencement of the fiduciary relationship during which the agent can treat the money as his own.
+The relationship remains throughout the period while the money is held in a client or house account until the obligation to the client has been discharged.
+That was held to be the position in Council of the Law Society of Scotland v McKinnie, and I would apply the same reasoning here.
+So if this were a Scottish case I would have no difficulty in adopting the reasons that Lord Walker gives in para 63.
+As he explains in para 76, the clear conclusion he reaches on the first issue is that the effect of CASS 7 is that under the alternative approach referred to in 7.4.16, as well as under the normal approach referred to in 7.4.17, a firm receives and holds clients money as a trustee, with the beneficial ownership remaining in the clients.
+I have no doubt that the law of Scotland would arrive at the same conclusion.
+Lord Walker found it helpful to consider the third issue, which is whether participation in the client money pool (CMP) is dependent on actual segregation (in other words, how the CMP is to be distributed), before the second issue, which is whether the primary pooling arrangements apply only to the client money in house accounts (in other words, what is to go into the CMP): see para 89.
+I agree, and like him I would approach the third issue on the basis that the CMP consists of the aggregate of the segregated funds holding clients money immediately before the primary pooling event (PPE).
+I also agree that the words each client in the rule of distribution set out in 7.9.6R(2) must be taken in context to mean each client for whom client money is held as identified in the last reconciliation before the PPE.
+The agency approach would lead one to expect that the CMP was to be distributed on the basis of what has been referred to as the contributions theory, rather than on the basis of the claims theory.
+Sums received from or on behalf of the client are fiduciary in character.
+They retain that character until all the obligations arising from the fiduciary relationship are discharged.
+The fiduciary relationship protects them from being used to meet claims against the agent for breach of duties that he owes to others.
+It would be surprising if the rule of distribution was intended to have the effect of removing that protection, which is what the claims basis of distribution would achieve.
+As I see it, clear language would be needed to achieve such a paradoxical result.
+Lord Dyson says in para 144 that the general scheme of CASS 7 is that all client money is subject to a trust that arises upon receipt of the money by the firm and that the distribution rules are intended to protect all the clients money received prior to a PPE.
+He disagrees with Lord Walkers description of the notion that clients must be taken to have implicitly accepted the risk, on a PPE, of having to share their segregated funds with non segregated clients as unrealistic.
+He finds nothing surprising in the notion that, once a PPE occurs, the treatment of client money is subject to a different regime from that to which it was subject before.
+Lord Neuberger of Abbotsbury MR was of the same view in the Court of Appeal.
+In para 216 he said that it seemed to him unlikely that the FSA would have intended that client money which had yet to be segregated was intended to be treated differently from client money which had been segregated either under the normal approach or under the alternative approach.
+I find it hard to understand, for my part, why it should be thought that it was the intention of the FSA to depart from the basic principles upon which the rules that regulate the activities of solicitors have been based.
+As I explained at the outset of this judgment, a declaration of trust, in a case where a clients money has been so mixed in with the firms money that it cannot be traced, is not enough to provide the protection that the client needs in the event of the firms insolvency.
+Segregation is a necessary part of the system.
+When both elements are present they work together to give the protection that the client requires.
+To construe CASS 7 in the way Lord Dyson suggests would have the effect of depriving the client of the protection which the rules were designed to achieve at the very moment when it is most needed.
+It is not just the exceptional nature of the facts of this case that make the consequences of his approach so striking.
+It affects every client whose money is handled by any firm operating in the area of MiFID business, however large or small that amount may be.
+If authority is needed to show that the requirement of segregation is crucial for their protection and how segregation works hand in hand with the fiduciary character that is attached to the funds that are segregated, it can be found in the observations by Professor Gower in his report, Review of Investor Protection which are quoted by Lord Collins in para 186, in the consultation papers to which he refers in para 187 and in Council of the Law Society of Scotland v McKinnie 1991 SC 355 to which I refer in para 9, above.
+Like Lord Walker, I agree with the conclusion that Briggs J reached as to the effect of the final words of 7.9.6R(2) (calculated in accordance with CASS 7.9.7R).
+Their effect, as Briggs J said in para 255, was to provide a basis for the clients rateable participation in the CMP.
+It makes mandatory in the event of a PPE the standard method of money reconciliation that is set out in Annex 1 to CASS 7.
+Given that it is to be expected that this exercise will have been carried out according to the rules at the Point of Last Segregation (PLS), it is hard to see why it must be gone over again now.
+But whatever the purpose is that this rule is designed to serve, it does not contain a direction of the kind that I think would be needed to override the protection that attaches to the money that clients have actually contributed in consequence of the fiduciary relationship.
+I agree with Lord Walker that GLGs appeal on the third issue should be allowed.
+The second issue has to be approached on the assumption that there were movements in the client money requirement during the gap period between the PLS and the PPE and that significant sums of client money were still traceable in the house accounts at the PPE.
+As Lord Walker points out in para 101, the issue resolves itself into a contest between what has been referred to as the final reconciliation theory and the general trust law theory.
+The problem is best focussed by looking at the position of the unsegregated last minute provider of client money.
+Is that client to be left to claim against LBIE as an unsecured creditor, or is its contribution to be protected in the same way as the contributions of those whose money was contributed before the PLS? Here again the agency approach tends to indicate that the money that this client provided should be protected by the fiduciary obligation which attached to that money as soon as it was received by LBIE.
+The alternative is hard to reconcile with the fiduciary relationship, which must be taken to have been designed to protect the client from having to claim under the general law of insolvency.
+It was accepted that there is nothing to prevent a final internal reconciliation from being carried out to take account of movements in clients entitlements during the gap period.
+In any event I would so read the relevant provisions of CASS 7.
+That being so, I do not find it difficult to conclude, in agreement with Briggs J and Lord Walker, that this is what ought to be done in this case.
+I would therefore dismiss GLGs appeal on the second point and make the order which has been proposed by Lord Walker.
+The question raised by the Scottish Law Commission as to whether the same level of client protection is available in Scotland as elsewhere in the United Kingdom may not have been entirely resolved by the way the questions before us in this appeal have been answered.
+But it respectfully seems to me that the direction in section 139(3) of the 2000 Act that the reference to money being held on trust is to be read as a reference to its being held as agent offers a level of protection that is no less effective.
+This is because it is to be assumed that the relationship between the agent and the client is a fiduciary relationship of the kind identified in Jopp v Johnstons Trustee and Council of the Law Society of Scotland v McKinnie.
+It is worth noting too that I have found it helpful to examine the problems that this case gives rise to by assuming that the relationship between LBIE and its clients was indeed one of agency.
+The clarity with which the effect and consequences of that relationship has been described is compelling.
+As it is to be assumed that the protection given by the trust approach was intended to be just as effective, I think that the Scottish approach provides strong support for the conclusions that Lord Walker has reached in accordance with the direction in section 139(1) of the Act that applies to England and Wales.
+I share Lord Walkers concern at the effect of the answers that the majority give to the second and third issues, and especially to the third issue which is so crucial to the protection of investors generally.
+LORD WALKER
+Introduction
+Lehman Brothers International (Europe) (LBIE) is incorporated in England as an unlimited company with its head office in London.
+It was the principal European trading company in the Lehman Brothers group.
+It was authorised and regulated by the Financial Services Authority (FSA).
+LBIE was not a licensed deposit taker but it was authorised to hold clients money.
+Its ultimate holding company is Lehman Brothers Holdings Inc (LBHI), a company incorporated in Delaware and based in New York, now in Chapter 11 bankruptcy.
+LBIE was put into administration by an order of Henderson J made before the opening of business on Monday, 15 September 2008.
+Many difficulties have arisen in the administration and the administrators have made several applications to the Companies Court for directions under paragraph 63 of Schedule B1 to the Insolvency Act 1986.
+Probably the most contentious and difficult of these is the client money application, which has led to this appeal.
+Nine representative claimants were joined as parties to argue the issues.
+On 15 December 2009 Briggs J, after a twelve day hearing, made an order giving directions on a range of issues concerned with client money: [2009] EWHC 3228 (Ch), [2010] 2 BCLC 301.
+Some of the issues were matters of detail but others are of general and fundamental importance to LBIEs clients.
+Four of these general issues were made the subject of an appeal to the Court of Appeal, and on 2 August 2010 the Court of Appeal (Lord Neuberger of Abbotsbury MR, Arden LJ and Sir Mark Waller) allowed the appeal on two of the four issues: [2010] EWCA Civ 917, [2011] Bus LR 277, [2011] 1 CMLR 27, [2011] 2 BCLC 164.
+Permission to appeal or cross appeal to the Supreme Court was granted on three of those issues.
+They are closely interconnected, and all of them depend on the application (to a complicated set of assumed facts) of what is known as CASS 7, that is, chapter 7 (Client money: MiFID business) of the Client Assets Sourcebook issued by the FSA.
+MiFID is an abbreviation for the Markets in Financial Instruments Directive 2004/39/EC and CASS 7 has evolved from earlier regulatory instruments into a form intended to transpose MiFID and its Implementing Directive, Commission Directive 2006/73/EC dated 10 August 2006.
+The FSAs powers of making rules and publishing guidance are conferred by sections 138, 139, 155 and 157 of the Financial Services and Markets Act 2000 (FSMA).
+Section 139(1)(a) expressly permits rules to make provision which results in clients money being held on trust in accordance with the rules.
+At the beginning of his judgment Briggs J (paras 2 to 7) gave an introduction to the problems in terms which I gratefully adopt: 2.
+When first read, CASS 7 appears to provide a relatively straightforward and intelligible code for the safeguarding of client money by regulated firms.
+In the barest outline, it provides for client money to be identified and promptly paid into segregated accounts, segregated that is from the firms house accounts.
+It provides for client money to be held on trust, in substance for the clients for whom it is received and held.
+Finally in the event of the failure of the firm, the rules provide for the pooling of the client money, thus far segregated and held on trust, and for its distribution to those entitled to it under that trust, pari passu in the event of a shortfall. 3.
+In an ideal world, the flawless operation of the scheme created by the CASS 7 rules would ensure first, that the clients money could not be used by the firm for its own account and secondly, that upon the firms insolvency, the clients would receive back their money in full, (subject only to the proper costs of its distribution) free from the claims of the firms creditors under the statutory insolvency scheme.
+The rules would achieve those twin objectives by ensuring that, promptly upon receipt, client money was held by a firm as trustee, separately and distinctly from the firms own money and other assets, and therefore out of the reach both of the firm (for the conduct of its business) and of the firms administrator or liquidator upon its insolvency (for distribution among its creditors). 4.
+In the imperfect and hugely complex real world occupied by LBIE and its numerous clients, there has on the facts which I am invited to assume for present purposes been a falling short in the achievement of both of those objectives on a truly spectacular scale.
+This shocking underperformance has occurred for a number of reasons, of which two stand out as prime causes.
+The first is that (again on the facts which I am invited to assume) LBIE failed to identify as client money, and therefore also failed to segregate, vast sums received from or on behalf of a significant number of its clients.
+In this respect, the most significant group of clients whose money LBIE failed to segregate were its own affiliates, that is members of the Lehman Brothers group of companies of which [LBHI] is the ultimate parent.
+Those affiliates have advanced client money claims against LBIE in aggregate exceeding US$3 billion.
+To put that extraordinary amount in perspective, the aggregate of the amounts actually held by LBIE in segregated accounts for clients for which it recognised a segregation obligation pursuant to CASS 7 when it went into administration on the morning of 15 September 2008 had a face value of only US$2.16 billion approximately. 5.
+To the un segregated affiliates claims in excess of US$3 billion must be added claims of independent clients of LBIE who have challenged LBIEs treatment of its relationship with them as one of debtor/creditor rather than trustee and beneficiary, pursuant to the terms of its standard form contracts.
+The amount of under segregation which may be attributable to that failure (if failure it be) has not been identified.
+In addition, LBIE routinely treated otherwise than as client money sums deriving from options and derivative OTC transactions with its clients, regardless of the terms of the agreements pursuant to which LBIE conducted such trading for those clients.
+The amount of potential segregation failure in respect of option transactions alone is said to have been US$146m. 6.
+The second main reason for under achievement of the objectives behind the CASS 7 rules lies in the insolvent failure of another LBIE affiliate, Lehman Brothers Bankhaus AG (Bankhaus), with which LBIE had deposited no less than US$1 billion of segregated client money.
+Bankhaus was subjected to a moratorium by the German regulator on 15 September 2008, and insolvency proceedings in relation to it were commenced on 12 November 2008.
+The administrators have been unable even to hazard a guess at the amount, if any, of client money which may be recovered from Bankhaus.
+Thus, even if there were no claims at all by clients whose client money LBIE failed to segregate, there exists a real risk that the shortfall on client account will exceed 40% due to the Bankhaus failure, quite apart from the costs and charges liable to be levied against the segregated fund in connection with its distribution, including the very large costs of this application. 7.
+The combination of a massive failure to identify and segregate client money, coupled with the credit loss shortfall attributable to the Bankhaus failure, has thrown up a series of fundamental problems in the interpretation and application of the rules in CASS 7 to LBIEs business and insolvency.
+The judge then went on to mention further complications and difficulties, some of which are still relevant to this appeal.
+In the course of the appeal process the number of representative claimants has been reduced.
+Of the original nine only four have been parties to the appeal to the Supreme Court, as follows: (1) GLG Investments plc (subfund: European Equity Fund) (GLG) was the representative of LBIEs fully segregated clients.
+It was the winner before Briggs J on issues 2 and 3 but the loser (with the benefit of a preemptive costs order) before the Court of Appeal on all three issues.
+It is the appellant (without the benefit of a preemptive costs order) in this court.
+GLG appeared by Mr Antony Zacaroli QC, Mr David Allison and Mr Adam Al Attar. (2) CRC Credit Fund Limited (CRC) was the principal appellant before the Court of Appeal, as a representative of what Briggs J (para 25) referred to as the wholly unsegregated end of the spectrum.
+Having succeeded before the Court of Appeal it is the principal respondent (with the benefit of a preemptive costs order) before this court, and it has appeared by Mr Robert Miles QC and Mr Richard Hill. (3) and (4) Lehman Brothers Inc. and Lehman Brothers Finance AG (the LB affiliates) are, on the assumed facts, largely unsegregated clients of LBIE, but they have been joined and represented separately, at their own risk as to costs, because of their special position as members of the Lehman Brothers group.
+They have appeared by Mr Jonathan Crow QC, Mr Jonathan Russen QC and Mr Richard Brent, who have supported and supplemented the submissions made by Mr Miles.
+The administrators have appeared by Mr Iain Milligan QC, Ms Rebecca Stubbs and Mr Richard Fisher.
+The FSA was represented by leading counsel before Briggs J and the Court of Appeal.
+It has not appeared by counsel in this court but has made written submissions prepared by Mr David Mabb QC and Mr Stephen Horan.
+The FSA was generally supportive of the respondent claimants position.
+In his judgment Briggs J had to answer no fewer than 26 questions, some of them subdivided.
+He had to go into a number of technical matters that arose from the complex and varied character of LBIEs trading activities, including futures, margins, currency transactions, stock loans, depot breaks, fails, and unapplied credits.
+Some of these terms are briefly explained in para 2.16 of the statement of assumed facts (SAF), most of which is reproduced in para 49 of Briggs Js judgment.
+In this court the argument has on the whole proceeded at a more general level.
+But at least a superficial acquaintance with some of the technicalities is necessary in order to understand the process of internal reconciliation of accounts that has to be undertaken on every business day by a firm operating the alternative approach described in paras 38 and 39 below.
+The Directives
+MiFID (Directive 2004/39/EC of the European Parliament and of the Council, dated 21 April 2004) replaces Council Directive 93/22/EEC on investment services in the securities field.
+Its general purpose is set out in Recital (2): In recent years more investors have become active in the financial markets and are offered an even more complex wide ranging set of services and instruments.
+In view of these developments the framework of the Community should encompass the full range of investor oriented activities.
+To this end, it is necessary to provide for the degree of harmonisation needed to offer investors a high level of protection and to allow investment firms to provide services throughout the Community, being a Single Market, on the basis of home country supervision.
+Recital (26) refers to the importance of segregation of clients funds from those of the firm: In order to protect an investors ownership and other similar rights in respect of securities and his rights in respect of funds entrusted to a firm those rights should in particular be kept distinct from those of the firm.
+This principle should not, however, prevent a firm from doing business in its name but on behalf of the investor, where that is required by the very nature of the transaction and the investor is in agreement, for example stock lending.
+The Directive is intended to state broad general framework principles to be implemented later (recital (64)).
+Article 13 (Organisational requirements) imposes on the home member state (that is, the state in which an investment firm has its registered or head office) the duty of requiring the firm to comply with the organisational requirements set out in paragraphs 2 to 8 of the article.
+These include: (7) An investment firm shall, when holding financial instruments belonging to clients, make adequate arrangements so as to safeguard clients ownership rights, especially in the event of the investment firms insolvency, and to prevent the use of a clients instruments on own account except with the clients express consent. (8) An investment firm shall, when holding funds belonging to clients, make adequate arrangements to safeguard the clients rights and, except in the case of credit institutions, prevent the use of client funds for its own account.
+Paragraph 10 indicates that the Commission will by the Implementing Directive specify the concrete organisational requirements to be imposed on investment firms.
+The Implementing Directive 2006/73/EC implemented MiFID as anticipated in article 13(10).
+In particular article 16(1) imposes on member states the obligation to require investment firms to keep and maintain records and accounts, to make regular reconciliations, and (in subparagraph (e)) to ensure that client funds deposited, in accordance with article 18, in [an institution authorised by article 18] are held in an account or accounts identified separately from any accounts used to hold funds belonging to the investment firm.
+Article 16(1)(f) requires member states to introduce adequate organisational arrangements to minimise the risk of the loss or diminution of client assets, or of rights in connection with those assets, as a result of misuse of the assets, fraud, poor administration, inadequate record keeping or negligence.
+Article 18(1) provides that investment firms are to be required, on receiving any client funds, promptly to place those funds into one or more accounts with a central bank, an authorised credit institution, a bank authorised in a third country, or a qualifying money market fund.
+Article 4 of the Implementing Directive (additional requirements on investment firms in certain cases) is concerned with what has been referred to as gold plating that is, transposing the Directive into national law in a form that imposes on investment firms requirements not imposed by the Directive itself.
+Article 4(1) provides: Member states may retain or impose requirements additional to those in this Directive only in those exceptional cases where such requirements are objectively justified and proportionate so as to address specific risks to investor protection or to market integrity that are not adequately addressed by this Directive, and provided that one of the following conditions is met: (a) the specific risks addressed by the requirements are of particular importance in the circumstances of the market structure of that member state; (b) the requirement addresses risks or issues that emerge or become evident after the date of application of this Directive and that are not otherwise regulated by or under Community measures.
+Any such requirements are to be notified and justified to the Commission.
+No such notification or justification has been made in respect of CASS 7.
+Gold plating was raised as an issue in the lower courts, as a possible argument against the imposition of an immediate trust of clients funds.
+It was not relied on by Mr Zacaroli in this court, but Mr Milligan mentioned it as a point which we might feel bound to consider of our own initiative.
+For my part I do not think it necessary to go further into the point.
+CASS 7
+CASS 7 (Client money: MiFID business) consists of nine sections, each subdivided into paragraphs containing mandatory rules (denoted R) and (distributed through the rules in smaller print) non mandatory guidance (denoted G).
+Defined terms are printed in italics, the definitions being found in a separate glossary.
+So for instance para 7.1.1R (Application) tells the reader that: This chapter (the client money rules) applies to: (1) A MiFID investment firm: (a) that holds client money. and para 7.1.2G tells the reader that CASS 7.2 (Definition of client money) sets out the circumstances in which money is considered client money for the purposes of this chapter.
+There is also an annex setting out the standard method of internal client money reconciliation.
+The rules contain numerous cross references to the Directives, to other chapters of CASS and to other FSA regulatory instruments including COBS (the current Conduct of Business Sourcebook) and SYSC (the part of the handbook on High Level Standards which has the title Senior Management Arrangements, Systems and Controls).
+It is necessary to give a fairly full summary of CASS 7.
+For brevity I will refer to particular sections and paragraphs without the prefix CASS.
+The two crucial provisions are emboldened for emphasis.
+The general scheme of CASS 7 is that section 7.1 sets out the scope of the client money rules and section 7.2 defines client money, doing so by a wide general definition followed by numerous specific exceptions.
+There is no general exception for money belonging to an affiliated company (7.1.12G). 7.2.15R (discharge of fiduciary duty) lays down when money ceases to be client money.
+Section 7.3 lays down general organisational requirements, substantially reproducing article 13(8) of MiFID and article 16(1)(f) of the Implementing Directive.
+Section 7.4 (Segregation of client money) begins by reproducing the substance of article 18 of the Implementing Directive.
+It then addresses client bank accounts and sets out rules and guidance that call for detailed treatment.
+The direct quotations below follow the official text in the use of italics (though it can be something of a distraction) but use the same font size for rules and guidance alike.
+7.4.11R, reproducing the substance of article 16(1)(e) of the Implementing Directive, provides: A firm must take the necessary steps to ensure that client money deposited, in accordance with CASS 7.4.1R, in a central bank, a credit institution, a bank authorised in a third country or a qualifying money market fund is held in an account or accounts identified separately from any accounts used to hold money belonging to the firm. 7.4.12G provides: A firm may open one or more client bank accounts in the form of a general client bank account, a designated client bank account or a designated client fund account (see CASS 7.9.3G). 7.4.13G explains when and how a designated client account may be used. 7.4.14G (payment of client money into a client business account) provides: Two approaches that a firm can adopt in discharging its obligations under the MiFID client money segregation requirements [defined in the glossary by reference to CASS 7.4.1R and CASS 7.4.11R] are: (1) the normal approach; or (2) the alternative approach.
+The following rules and guidance about the normal approach and the alternative approach must be set out in full.
+The alternative approach was first introduced in 1995.
+Originally its adoption required formal consent from the statutory regulator, but this requirement was replaced by the procedure in 7.4.15R: 7.4.15R A firm that does not adopt the normal approach must first send a written confirmation to the FSA from the firms auditor that the firm has in place systems and controls which are adequate to enable it to operate another approach effectively. 7.4.16G The alternative approach would be appropriate for a firm that operates in a multi product, multi currency environment for which adopting the normal approach would be unduly burdensome and would not achieve the client protection objective.
+Under the alternative approach, client money is received into and paid out of a firms own bank accounts; consequently the firm should have systems and controls that are capable of monitoring the client money flows so that the firm comply with its obligations to perform reconciliations of records and accounts (see CASS 7.6.2R).
+A firm that adopts the alternative approach will segregate client money into a client bank account on a daily basis, after having performed a reconciliation of records and accounts of the entitlement of each client for whom the firm holds client money with the records and accounts of the client money the firm holds in client bank account and client transaction accounts to determine what the client money requirement was at the close of the previous business day. 7.4.17G Under the normal approach, a firm that receives client money should either: (1) pay it promptly, and in any event no later than the next business day after receipt, into a client bank account; or (2) pay it out in accordance with the rule regarding the discharge of a firms fiduciary duty to the client (see CASS 7.2.15R). 7.4.18G Under the alternative approach, a firm that receives client money should: (1)(a) pay any money to or on behalf of clients out of its own account; and (b) perform a reconciliation of records and accounts required under CASS 7.6.2R (Records and accounts), SYSC 4.1.1R and SYSC 6.1.1R, adjust the balance held in its client bank accounts and then segregate the money in the client bank account until the calculation is re performed on the next business day; or (2) pay it out in accordance with the rule regarding the discharge of a firms fiduciary duty to the client (see CASS 7.2.15R). 7.4.19G A firm that adopts the alternative approach may: (1) receive all client money into its own bank account; (2) choose to operate the alternative approach for some types of business (for example, overseas equity transactions) and operate the normal approach for other types of business (for example, contingent liability investments) if the firm can demonstrate that its systems and controls are adequate (see CASS 7.4.15R); and (3) use an historic average to account for uncleared cheques (see paragraph 4 of CASS 7 Annex 1G). 7.4.20G Pursuant to the MiFID client money segregation requirements a firm should ensure that any money other than client money deposited in a client bank account is promptly paid out of that account unless it is a minimum sum required to open the account, or to keep it open. 7.4.2.1R If it is prudent to do so to ensure that client money is protected, a firm may pay into a client bank account money of its own, and that money will then become client money for the purposes of this chapter.
+Section 7.5 deals with transfers of client money to third parties.
+Section 7.6 (records, accounts and reconciliations) reproduces the substance of article 16 (1)(a), (b) and (c) of the Implementing Directive.
+It also introduces, in a curiously indirect way, the annex to CASS 7. 7.6.6G deals with internal reconciliations of client money balances and 7.6.6G (3) provides: The standard method of internal client money reconciliation sets out a method of reconciliation of client money balances that the FSA believes should be one of the steps that a firm takes when carrying out internal reconciliations of client money.
+The first set of italics sends the reader to the glossary, which defines the phrase by reference to CASS 7 Annex 1G.
+The provisions of the annex are summarised, so far as relevant, in paras 63 and 64 below.
+Section 7.7 (Statutory trust) is of central importance in this appeal.
+It must be set out in full: 7.7.1G Section 139(1) of the Act (Miscellaneous ancillary matters) provides that rules may make provision which result in client money being held by a firm on trust (England and Wales and Northern Ireland) or as agent (Scotland only).
+This section creates a fiduciary relationship between the firm and its client under which client money is in the legal ownership of the firm but remains in the beneficial ownership of the client.
+In the event of failure of the firm, costs relating to the distribution of client money may have to be borne by the trust. 7.7.2R A firm receives and holds client money as trustee (or in Scotland as agent) on the following terms: (1) for the purposes of and on the terms of the client money rules and the client money (MiFID business) distribution rules; subject to (3) [it is common ground that this is an error for (2) (4)], for the clients (other than clients which are insurance undertakings when acting as such with respect of client money received in the course of insurance mediation activity and that was opted in to this chapter) for whom that money is held, according to their respective interests in it; (3) after all valid claims in (2) have been met, for clients which are insurance undertakings with respect of client money received in the course of insurance mediation activity according to their respective interests in it; (4) on failure of the firm, for the payment of the costs properly attributable to the distribution of the client money in accordance with (2); and (5) after all valid claims and costs under (2) to (4) have been met, for the firm itself.
+Section 7.8 requires the trust affecting client money to be notified to and acknowledged by banks and other intermediaries.
+Section 7.9 (Client money distribution) is also of central importance. 7.9.1 to 7.9.8 must be set out in full: 7.9.1R This section (the client money (MiFID business) distribution rules) applies to a firm that holds client money which is subject to the client money rules when a primary pooling event or a secondary pooling event occurs. 7.9.2G The client money (MiFID business) distribution rules seek to facilitate the timely return of client money to a client in the event of the failure of a firm or third party at which the firm holds client money. 7.9.3G A firm can hold client money in either a general client bank account, a designated client bank account or a designated client fund account.
+A firm holds all client money in general client bank accounts for its clients as part of a common pool of money so those particular clients do not have a claim against a specific sum in a specific account; they only have a claim to the client money in general.
+A firm holds client money in designated client bank accounts or designated client fund accounts for those clients that requested their client money be part of a specific pool of money, so those particular clients do have a claim against a specific sum in a specific account; they do not have a claim to the client money in general unless a primary pooling event occurs.
+A primary pooling event triggers a notional pooling of all the client money, in every type of client money account, and the obligation to distribute it.
+If the firm becomes insolvent, and there is (for whatever reason) a shortfall in money held for a client compared with that clients entitlements, the available funds will be distributed in accordance with the client money (MiFID business) distribution rules.
+A primary pooling event occurs: 7.9.4R (1) on the failure of the firm; (2) on the vesting of assets in a trustee in accordance with an assets requirement imposed under section 48(1)(b) of the Act; (3) on the coming into force of a requirement for all client money held by the firm; or (4) when the firm notifies, or is in breach of its duty to notify, the FSA, in accordance with CASS 7.6.16 R (Notification requirements), that it is unable correctly to identify and allocate in its records all valid claims arising as a result of a secondary pooling event.
+CASS 7.9.4R (4) does not apply so long as: 7.9.5R (1) the firm is taking steps, in consultation with the FSA, to establish those records; and (2) there are reasonable grounds to conclude that the records will be capable of rectification within a reasonable period. 7.9.6R If a primary pooling event occurs: (1) client money held in each client money account of the firm is treated as pooled; and (2) the firm must distribute that client money in accordance with CASS 7.7.2R, so that each client receives a sum which is rateable to the client money entitlement calculated in accordance with CASS 7.9.7R. 7.9.7R (1) When, in respect of a client, there is a positive individual client balance and a negative client equity balance, the credit must be offset against the debit reducing the individual client balance for that client. (2) When, in respect of a client, there is a negative individual client balance and a positive client equity balance, the credit must be offset against the debit reducing client equity balance for that client. 7.9.8G A clients main claim is for the return of client money held in a client bank account.
+A client may be able to claim for any shortfall against money held in a firms own account.
+For that claim, the client will be an unsecured creditor of the firm.
+Section 7.9 goes on to deal with client money received after a primary pooling event, and mixed remittances (7.9.10 to 7.9.12).
+It then deals with secondary pooling events, defined in the glossary by reference to 7.9.14R: A secondary pooling event occurs on the failure of a third party to which client money held by the firm has been transferred under CASS 7.4.1R(1) to CASS 7.4.1R(3) (depositing client money) or CASS 7.5.2R (Transfer of client money to a third party). 7.9.13R provides that if both a primary pooling event and a secondary pooling event occur, the provisions of this section relating to a primary pooling event are to apply.
+In this case there was a secondary pooling event (SPE), that is the failure of Lehman Brothers Bankhaus AG, mentioned in para 6 of the judgment of Briggs J and quoted in para 27 above, as well as a primary pooling event (PPE), that is the failure of LBIE.
+Mr Zacaroli relied on the provisions as to the consequences of SPEs (7.9.18G to 7.9.25R as regards any bank failure) as reinforcing his submission that losses on segregated and non segregated funds are in general intended to lie where they fall, and to be shared rateably between those on whom they fall (this is an argument on the correct construction of CASS 7 which does not of course depend on the fact of the failure of Bankhaus).
+The correct approach to construction of CASS 7
+This appeal turns on the correct construction, in context, and against the background of the general law of trusts, of a small number of the provisions set out or summarised above.
+The crucial provisions are 7.7.2R and 7.9.6R, set out above in bold type.
+I have felt obliged to set out a large number of much more peripheral provisions because the text of CASS 7 has been subjected, both in the courts below and in this court, to a detailed analysis in which small verbal points (possibly an indication of no more than imperfect drafting) have been put forward and relied on as significant.
+That is not intended as a complaint.
+The correct construction of CASS 7 gives rise to real difficulties.
+The modern approach of the court to construing commercial or regulatory documents is to prefer a purposive to a literal approach.
+That approach is reinforced by the FSA Handbook, in which GEN 2.2.1R provides, Every provision in the Handbook must be interpreted in the light of its purpose.
+But in this case any attempt to adopt a purposive approach runs almost immediately into difficulties.
+It is clear that the Directives intended to achieve a high level of protection of clients money, and that the prompt and scrupulous segregation of clients money, confirmed by regular internal reconciliations and monitored by the national regulatory authority, was to be the means of achieving that end.
+Equally it is clear that CASS 7 was intended to transpose the Directives into national law, and in doing so to make use of a basic concept of English law, the trust (Lord Hope has in his judgment addressed the application of CASS 7 where the law of Scotland applies).
+It is not now contended that the use of the trust concept involves gold plating.
+Whatever the position may be in other member states, under United Kingdom insolvency law mere segregation of clients money, without the support of an effective trust, would not give adequate protection in the event of a firms failure.
+So far, so good.
+But neither in the Directives nor in CASS 7 is there any indication of what is to happen if the organisational requirements are not complied with, and clients money is not segregated as it should be.
+Both the Directives and CASS 7 assume compliance and do not address the possibility of any significant degree of non compliance, let alone non compliance on what Briggs J referred to as a truly spectacular scale.
+In the Court of Appeal Arden LJ (para 63) instanced 7.6.13R as an example of a provision that contemplates non compliance.
+It is one of three provisions (7.6.13R, 7.6.14R and 7.6.15R) which deal with the resolution of reconciliation discrepancies.
+These routine rules, which contemplate internal reconciliations operating effectively, cannot, with respect, be taken as negating the rules general assumption of compliance.
+On the contrary, their relatively trivial nature seems to me to underline a general assumption of compliance with organisational requirements that permeates CASS 7.
+In these circumstances, with very large sums of money at stake, it is inevitable that the text of CASS 7 should have been subject to very close analysis.
+Although the distinction between R rules and G guidance is important for regulatory purposes, it is common ground that for the purposes of construction provisions which contain guidance, as well as rules, should be taken into account.
+Summary of assumed facts
+The judgment of Briggs J contains quite a full account of LBIEs organisation and operating methods, partly in paras 1 to 45 of the judgment and partly in the SAF reproduced (except for its description of the claimants) in para 49.
+For present purposes a shorter summary is sufficient.
+LBIEs business was organised in three segments: capital markets, investment banking and investment management.
+It provided a wide range of financial services to clients (including governments, trading corporations and wealthy individuals), and also traded on its own account (proprietary trading).
+It regularly and on a daily basis handled money in more than 50 currencies on behalf of more than 1,500 clients in different time zones.
+In order to cope with this volume of varied business it adopted the alternative approach (see paras 38 and 39 above) for the segregation of clients money.
+As recorded in para 2.11 of the SAF: Client money would be paid directly into and out of LBIEs own bank accounts (or an affiliates bank accounts) and LBIE would segregate client money by making a single daily reconciling payment to (or withdrawal from) bank accounts used exclusively by LBIE in order to segregate client money.
+The amount of any such payment would be calculated by LBIE each business day morning based on data as at close of business on the previous business day.
+The client money segregated by LBIE would then be adjusted accordingly later that day.
+In calculating the amounts which it had to segregate as clients money, LBIE generally did so by reference to a range of components, which varied according to the type of financial services undertaken for a particular client, and the terms of the contract with that client.
+Under some contracts LBIE expressly agreed to provide client money protection.
+Under others LBIE sought to rely on the total title collateral transfer exemption contained in CASS 7.2 (SAF para 2.6).
+Clients money was received by LBIE, or was recognised as clients money by LBIE, in three different ways: payments from clients; payments from third parties; and appropriations by LBIE of its own money by segregating it in a clients money account in order to satisfy a pecuniary obligation such as a manufactured dividend on a stock lending transaction (SAF paras 2.18 and 2.19).
+LBIE had more than 700 different bank accounts, falling broadly into three categories: (1) accounts used exclusively for clients money, referred to as core client [money] bank accounts; (2) an intermediate category of accounts (numbering more than 300) referred to as non core client money bank accounts; and (3) house accounts (numbering over 440) containing money of which LBIE regarded itself (in some cases, on the assumed facts, wrongly) as the beneficial owner (SAF 2.20; the word money does not occur in the actual designation in 2.20.1 but it does occur elsewhere, for instance in the next line of 2.20.1 and in 2.26).
+In addition, clients money was held in client transaction accounts, that is accounts held in the name of LBIE in a fiduciary capacity, with about ten different clearing houses and brokers.
+LBIE also had house transaction accounts for the purpose of its proprietary trading.
+Sometimes a single transaction account was used for both clients money and proprietary trading (SAF paras 2.42 to 2.49).
+LBIE had a liquidity management process described in SAF paras 2.21 to 2.27.
+Its general object was to ensure, by projections of funding needs and appropriate transfers, that LBIE had sufficient liquidity, but not a large surplus of funds, for its trading operations.
+Daily transfers were made between LBIE and LBHI so as to achieve this.
+In the months leading up to its failure, LBIE was a net debtor of LBHI, so that the effect of transfers from LBIE to LBHI was to reduce the intra group indebtedness.
+SAF 2.26 describes how client money was dealt with as part of that process: All of LBIEs bank accounts were subject to the liquidity management process save that, in relation to LBIEs core client money bank accounts, surplus funds would only be withdrawn from these accounts where LBIEs reconciliation and segregation calculation permitted LBIE to reduce the amount of money segregated by it.
+Prior to the Time of Appointment therefore, client money first received into one of LBIEs bank accounts was regularly transferred to LBHIs bank account(s) each evening prior to LBIE segregating an equivalent amount the next morning.
+As to the events immediately before LBIE was put into administration by an order made at 7.56 am on Monday 15 September 2008, the last internal reconciliation of clients funds took place on the morning of Friday 12 September 2008 by reference to data as at the close of business on Thursday 11 September.
+SAF para 2.26 goes on to record: Given that, it is possible that client money received into LBIEs non core client money bank accounts or house accounts between [close of business] on 11 September 2008 and close of business on 12 September 2008 would have been passed up to LBHI as part of the liquidity management process prior to the Time of Appointment [of the Administrators].
+There is a more detailed account of these events in SAF para 2.50.
+In the judgment of Briggs J the close of business on 11 September 2008 is referred to as the Point of Last Segregation (PLS) and 7.56 am on 15 September 2008 is referred to as the Time of Appointment or, in the context of CASS 7, the PPE.
+The appointment of the administrators on 15 September 2008 may be seen as a supervening event which made it impossible for LBIE to perform its obligation (under the alternative approach) to segregate clients money within one business day.
+The other failures to segregate seem to have started long before and to have continued over a long period.
+They are described as follows (by way of example) in SAF para 2.52: (1) LBIE did not segregate any money in relation to trading in any transactions, including margined transactions, carried out in respect of Affiliates trading on their own account.
+The amounts claimed by the Affiliates in connection with this exceed USD3 billion. (2) LBIE did not segregate any money in connection with certain complex arrangements that it had for the trading of various positions with its Affiliates, in connection with which amounts would fall due and payable as between LBIE and those Affiliates but would be posted to the relevant intercompany ledger account rather than always immediately paid. [A footnote refers to a separate application relating to the RASCALS process.] (3) LBIE often entered into agreements with its clients under which LBIE understood that client money protection would not be afforded to various types of money held by it for those clients.
+Where this was the case, LBIE did not generally segregate money on behalf of such clients.
+A number of clients with agreements of these types seek to argue that the particular language contained in their agreements was not effective to exclude client money protection, at least not in its entirety.
+Similarly where clients entered into a number of agreements with LBIE which provided for differing levels of client money protection, those clients may seek to argue that amounts which were held by LBIE for them at the Time of Appointment were held pursuant to an agreement which provided for some client money protection as opposed to another which did not. (4) LBIE did not generally segregate as client money certain amounts relating to options transactions with its clients.
+This was the case for all clients, irrespective of whether they had in place title transfer arrangements with LBIE.
+Whilst LBIE segregated premiums received for sold options and variation margin on certain options and gains on options closed out, it did not otherwise generally segregate for unrealised gains on open options positions.
+As at 12 September 2008, the approximate aggregate value of unrealised gains (not deducting unrealised losses) arising from options transactions which had not been segregated was USD146m. (5) LBIE did not segregate any money in respect of OTC derivatives because all such money was regarded by LBIE as being held pursuant to total title transfers in accordance with CASS 7.2.3R. (6) From time to time operational errors occurred which led to a failure by LBIE to segregate an appropriate amount for a client.
+There were also some potential instances of over segregation.
+The particular facts relevant to CRC are summarised in SAF para 6: (1) CRC was a prime brokerage client of LBIE. (2) CRC is a wholly Unsegregated Client for whom no client money was segregated by LBIE at the Time of Appointment. (3) LBIE should have segregated as client money for CRC sums including USD52m in connection with FX transactions and a cash balance of approximately USD24m in various currencies on other accounts.
+Claren Road Credit Master Fund Ltd (which was a party to the original application but is not represented on this appeal) is an example of a client for whom money was received on 12 September 2008 but whose money was not segregated because LBIE went into administration.
+Details of its interest are given in SAF para 7.
+The first issue
+The first issue is the time at which the statutory trust arises.
+In the case of money received from a client or from a third party, the two competing answers are time of receipt and time of segregation.
+In the case of satisfaction of a monetary obligation of the firm to a client (the fourth issue in the Court of Appeal) it is now common ground that the trust arises on the appropriation of funds in satisfaction of the obligation, normally by a payment into a segregated client account.
+On the first issue Briggs J and the Court of Appeal were in agreement that the statutory trust arises on receipt of the money; and this court, I understand, unanimously agrees that they were right.
+In the circumstances I can deal with the point fairly shortly, and mainly by reference to the judges reasons.
+Briggs J began his discussion with the observation (para 138), with which I agree, There is much to be said for the proposition, advanced by Mr Milligan in reply, that the question when the statutory trust attaches to client money is really a short point of construction, unambiguously answered by the opening words of CASS 7.7.2R: A firm receives and holds client money as trustee .
+I would readily adopt those reasons, expressed in the judges words, as my In paras 139 and 140 he summarised the contrary arguments (put before him not by Mr Zacaroli but by counsel for a representative unsecured non client money creditor and by counsel for LBHI).
+In paras 141 to 165 he gave his reasons for rejecting those arguments.
+own, but I can summarise them, with some loss of finesse, as follows. (1) Where money is received from a client, or from a third party on behalf of a client, it would be unnatural, and contrary to the primary purpose of client protection, for the money to cease to be the clients property on receipt, and for it (or its substitute) to become his property again on segregation.
+It would also be contrary to the natural meaning of the comprehensive language of 7.7.2R (paras 144 146). (2) Segregation without a trust would not achieve MiFIDs objective.
+Under the alternative approach an immediate trust of identifiable client money does provide protection, though mixed funds are subject to a variety of risks (para 148). (3) The absence of express restrictions, under the alternative approach, on use of clients money while held in a house account does not mean that the firm is free to use it for its own purposes.
+Its obligation is to segregate it promptly, and both section 7.3 of CASS and the general law of trusts would prevent use of clients money for proprietary purposes.
+There are at least two methods, one contemplated by 7.4.21R, of ensuring the protection of clients money temporarily held in a house account (paras 149 156). (4) The most formidable argument in favour of segregation (premised on the view that the provision of the distribution rules in 7.9.6R(1) applies only to segregated funds) is that there is under the alternative approach potentially a black hole into which clients money may vanish, so as not to be caught by the distribution rules.
+This is a point of substance, but it does not outweigh the opposing arguments.
+To allow a limited defect of the alternative approach to dictate the interpretation of the essential provisions of section 7.2 would be to let the tail wag the dog.
+In the Court of Appeal both Lord Neuberger MR (paras 190 203) and Arden LJ (paras 104 106) agreed with the reasoning of Briggs J, although each added some further particular reasons.
+In his able submissions on behalf of GLG Mr Zacaroli sought to draw a fundamental distinction between the normal approach and the alternative approach.
+He submitted that the latter approach is a complete contrast, under which the firm is expressly permitted to pay money into house accounts in which it would swill around with all the money in the firms house accounts.
+This point is largely covered by the judges reasoning as briefly summarised in para 63(3) above.
+I would add only that the alternative method is available not for the convenience of the firm, but as a better means of securing client protection (the judges second point in para 104 of his judgment).
+Both methods are intended to achieve a high degree of client protection, either by immediate segregation or by very prompt segregation.
+Moreover client money held temporarily in a house account does not, in the eyes of trust law, swill around but sinks to the bottom in the sense that when the firm is using money for its own purposes it is treated as withdrawing its own money from a mixed fund before it touches trust money (the point made by the judge in para 153 of his judgment).
+I would therefore dismiss GLGs appeal on the first issue.
+The second and third issues before Briggs J
+The second and third issues are stated in the agreed statement of facts and issues in these terms: (2) Do the primary pooling arrangements apply to client money in house accounts? (3) Is participation in the pool dependent on actual segregation? They were formulated in similar, but not identical terms in the Court of Appeal (para 6 of Arden LJs judgment).
+These are the issues on which the Court of Appeal unanimously differed from the judge.
+I shall try to summarise the main lines of reasoning in the courts below, although (again) my summary will not do justice to many of the finer points in the judgments.
+Briggs J covered what is now the second issue (his third issue, rather differently formulated) at paras 166 to 198.
+Because the issue as to the constitution of the client money pool (CMP) was differently formulated, many of the arguments which the judge had to consider have not been pursued on appeal.
+With hindsight derived from the hard toil of the appeal process I find it a little surprising that the judge concentrated so much on the language of 7.9.6R(1), to the exclusion of 7.7.2.
+The statutory trust in 7.7.2 received only an indirect mention in para 195: There is in any event a persuasive symmetry between that part of CASS 7 which requires the identification and segregation of client money by a firm while in business, and the distribution rules which, on that interpretation, require the money thus segregated to be promptly distributed to the clients entitled to it upon the firms failure.
+The judge concluded on this issue (para 197): (i) The CMP is constituted as at the PPE only by client money in segregated accounts. (ii) Client money outside the firms segregated accounts does not form part of the CMP. (iii) The identification of client money (if any) outside the firms segregated accounts depends upon the established principles by which a beneficiary must trace his property in order to pursue a proprietary claim in relation to it [with references to five well known cases].
+As to the third issue, the basis of sharing the CMP, Briggs J approached that as a contest between what he called the contributions theory and the claims theory.
+This corresponds closely to the contest as to whether in CASS 7 client money entitlement refers to contractual or proprietary entitlement.
+It is to be noted that however the issue is formulated it arises as a problem, except in relation to the last business day, only in the event of non compliance with CASS 7.
+The judge saw the contest as a difficult question with large consequences, which is undoubtedly correct.
+He observed (para 228): Unhappily, CASS 7 provides no clear guidance on this question.
+This is probably because the draftsman working in the utopian world of full compliance by the firm with the client money rules before its failure, assumed that there would be no substantial difference between the amount which should have been segregated and the amount which was actually segregated for any particular client.
+The only differences would arise from dealings with client money during the short period between the PLS and the PPE, and then only in relation to a firm using the alternative approach.
+In para 234 the judge came back to the point that the Directives contemplate that the protection of clients money will be achieved by compliance with the Directives organisational requirements.
+In paras 238 and 239 he analysed the effect of 7.7.2R, in conjunction with other provisions, in imposing the statutory trust for the clients for whom that money is held, according to their respective interests in it.
+Para 241 in effect sets out the case for the contributions theory at its highest, and then notes that there are counter arguments: The result is in my judgment that the MiFID Directives, the general law and an analysis of the proprietary rights in the segregated accounts prior to pooling, all support the contributions theory as against the claims theory.
+There remains nonetheless the question whether, as submitted by (and for) the un segregated clients, the language of the distribution machinery contained in CASS 7.9.6R, 7R and 9R requires the application of a claims rather than contributions basis of calculation as a matter of interpretation.
+For that purpose, there is no escape from a painstaking analysis of the meaning and purpose of those three paragraphs, and in particular paragraph 7.9.7R.
+The counter arguments are summarised in seven sub paragraphs in para 242, described in the next paragraph as constituting a formidable textual argument.
+But the judge discerned weaknesses in it.
+First, the expression client money entitlement in CASS 7 does not have a single fixed meaning.
+Second, the draftsman could not have contemplated a disparity between the results of the two methods because his aim was (para 246) to construct a scheme of obligations with which he expected firms to comply, rather than flout.
+Moreover (para 250) it is no part of the distribution rules to confer upon clients whose money was, in breach of the client money rules, not contributed to the segregated accounts from which the CMP is constituted, a beneficial interest in that fund which did not exist immediately prior to the PPE.
+The judge then embarked on what is indeed a painstaking examination of 7.9.6R(2), 7.9.7R and 7.9.9R, which took him into the purposes and structure of the annex.
+He concluded (para 275): My conclusion on this issue therefore is that the basis for sharing in the CMP is the amount which the firm actually segregated for each client, as revealed by the last internal reconciliation account carried out by the firm before the PPE, and in LBIEs case (because it used the alternative approach) by reference to the PLS, subject to certain adjustments necessitated by CASS 7.9.7R, and by subsequent events, to which I will return later in this judgment.
+The second and third issues in the Court of Appeal
+In the Court of Appeal Arden LJ covered the second issue at paras 108 to 142 of her judgment, with her conclusions beginning at para 124.
+She saw client money account (an undefined expression) as having a wide meaning.
+She thought it significant that the statutory trust was a single trust, that client money entitlement in 7.9.6R(2) naturally referred to a contractual entitlement, and that 7.9.3G envisaged a pooling of all the client money, in every type of client money account (para 127).
+She saw the contributions theory as producing unfair results (paras 130 and 131).
+She rejected the argument that the claims theory involved any interference with the rights, prior to the PPE, of fully segregated clients (para 134).
+Similarly she discounted the judges symmetry (para 195 of his judgment, quoted in para 67 above) as a distraction (para 137).
+She concluded that there was to be a pooling of all client money in segregated accounts and house accounts (para 139), and that there should be a final reconciliation covering events down to the PPE (paras 140 142).
+Lord Neuberger MR addressed the second issue at paras 204 to 224.
+He could get only limited textual assistance, though he considered numerous detailed points (paras 205 to 215).
+He saw some force in the submission that at least on a primary pooling event, the clients of the firm are in it together, and client money is pooled and paid out to all clients on a pro rata basis, and that the claims theory was fairer in avoiding a degree of randomness (paras 217 and 218).
+He also attached some weight to the notion that the statutory trust was a single trust, and to the Directives aim of providing a single and consistent level of protection (paras 221 and 222).
+So Lord Neuberger reached the same agreement as Arden LJ on the second issue, and Sir Mark Waller agreed with both of them.
+Lord Neuberger does not seem to have commented on Lady Ardens view that a further, final reconciliation was appropriate, and the order of the Court of Appeal as perfected does not refer to this point.
+But Mr Miles in his written case (para 182) and his oral submissions (Day 4, page 96) relied on Sir Mark Wallers general agreement with Arden LJ on the topic of pooling.
+Arden LJ addressed the third issue at paras 143 to 163, with her conclusions beginning at para 154.
+She repeated that client money entitlement referred to contractual entitlement, even if it meant distributing funds to clients with no proprietary claim.
+It was open to the FSA, she stated, to treat the failure of the firm as a common misfortune in which those who had claims to the recovery of client money should share without distinction (para 154).
+She noted that even under the contributions theory, adjustments have to be made, and considered that the judges reference to a glitch (in para 265 of his judgment) understated the problem (para 157 of the judgment of Arden LJ).
+Referring to the words for the clients . for whom that money is held, according to their respective interests in it in 7.7.2R (3) Arden LJ stated (para 160): While the firm is a going concern those interests are the several interests of the clients but on a PPE a pooling occurs so that on any view those interests are varied.
+Accordingly as from the happening of a PPE, the expression their respective interests must mean their respective interests under CASS 7.9.6R.
+So Arden LJs conclusion was in favour of the claims theory.
+So was that of Lord Neuberger MR (paras 225 234).
+He regarded the objections to the contributions theory (set out in para 242 of the judges judgment) as not merely formidable but also decisive.
+He thought that client money entitlement did have a consistent meaning if the claims theory was adopted; it was only if the contributions theory was adopted that inconsistency occurred.
+Again, Sir Mark Waller agreed with Lord Neuberger and Arden LJ.
+The intricate textual arguments outlined above (and it is merely an outline) have now been debated between highly skilled counsel for a total of 20 days.
+Many of them seem to be the result of drafting imperfections in CASS 7.
+As was pointed out below, there is no definition of the expression client money account, although the glossary (which is the size of a small dictionary) does contain definitions of client bank account (as a current or deposit account at a bank, in the name of the firm, which holds the money of one or more clients) and client transaction account (explained in 7.4.16G).
+It is, I accept, impossible to avoid the most important of the textual arguments, particularly the formidable argument (paras 242 and 243 of the judgment of Briggs J) which ultimately persuaded Lord Neuberger, and also influenced Arden LJs conclusions (paras 154 to 160).
+I shall return to those arguments.
+But in my view the resolution of the second and third questions (which are closely bound together) depends ultimately on the general scheme and structure of the regulatory framework in CASS 7, and on seeing (in general terms) how segregation of clients money worked in practice, not merely on the catastrophic failure of the firm on the PPE, but from business day to business day during the firms trading operations.
+The nature of the statutory trust
+In the search for the essential scheme and structure of CASS 7 the outstanding feature is the statutory trust.
+In line with the clear conclusion reached on the first issue, the effect of CASS 7 is that under the alternative approach, as well as under the normal approach, a firm receives and holds clients money as a trustee, with beneficial ownership remaining in the clients.
+The trust in 7.7.2R is (1) for the purposes of and on the terms of the client money rules and the client money (MiFID business) distribution rules; (2) subject to [(4) costs of distribution on failure] for the clients [subject to an irrelevant exception] for whom that money is held, according to their respective interests in it.
+The client money rules are defined in the glossary as CASS 7.1 to 7.8, and the client money (MiFID business) distribution rules as CASS 7.9.
+The latter rules apply only in what was (until shortly before LBIEs failure) no doubt regarded as a remote contingency, that is the failure of the firm or some other event amounting to a PPE.
+Unless and until such an untoward event happens, the purposes of the statutory trust are those in CASS 7.1 to 7.8.
+This point needs to be made since Mr Miles, for understandable reasons, referred to the statutory trust as a purpose trust and placed emphasis on the purposes of the client money distribution rules in CASS 7.9, and especially 7.9.6R.
+Those rules came into operation on the failure of the firm on 15 September 2008.
+Until then clients money had been held, no doubt in some cases for years, in client money bank accounts (some general and some designated) for all the purposes of CASS 7.4, 7.5, 7.6 and 7.8 that is segregation, transfer to third parties, record keeping and internal reconciliation, and protection (by notice to banks) of client money bank accounts.
+Those purposes were not ends in themselves (as in a trust for charitable purposes).
+They were purposes directed to the protection and management of clients money in the beneficial ownership of clients who were identified beneficiaries of the trust, being (as 7.7.2R(2) puts it) those for whom that money is held, according to their respective interests in it.
+The biggest objection to the claims theory of interpreting 7.9.6R is that it involves, on the assumed facts of this case, a cataclysmic shift of beneficial interest on the PPE, to the detriment of those clients who must have supposed that their funds were safely segregated in accordance with CASS 7.1 to 7.8.
+That shift (or bifurcation, to use a term which counsel used a great deal in argument) is in striking contrast to the persuasive symmetry that Briggs J (para 195 of his judgment, para 67 above) found in the contributions method.
+It is a far more extraordinary bouleversement than the relatively trivial bifurcation involved in segregation of clients money being deferred, under the alternative approach, until the next business day after its receipt.
+In his written case (para 34) Mr Zacaroli suggested that it would amount to the segregated clients funds being used as a strange form of compensation fund for disappointed clients whose funds had not been segregated.
+The Court of Appeal was aware of this difficulty.
+Arden LJ recognised (para 134) that the court should not of course interfere with property rights but dismissed the difficulty on the ground that dealings between the firm and its clients take place on the basis of CASS 7, and thus pooling is implicit in their dealings, followed by a reference to 7.9.3G.
+It is true that money in a general client account is pooled, and is at a risk that it will be shared rateably between the beneficial owners in the event of a SPE (such as the failure of a bank holding clients money) occurring without a PPE.
+But the notion that clients must be taken to have implicitly accepted the risk of discovering, on a PPE, that their carefully segregated funds must be shared with non segregated clients (including Lehman Brothers affiliates) seems, with respect, quite unrealistic.
+An associated point on the judgments in the Court of Appeal is the notion that all the clients of LBIE were victims of a common misfortune or disaster.
+Arden LJ referred to this (para 125 and, for what she called the happenstance point, para 131).
+Arden LJ did not accept Mr Zacarolis submission that the correct analysis was not the common misfortune of the firms failure, but the separate misfortune (suffered by some clients but not by others) of LBIEs assumed failure, on a massive scale, to comply with its obligations under CASS 7.4.
+Both Arden LJ (para 131) and Lord Neuberger (para 218) seem to have accepted the submission of Mr Mabb QC (appearing for the FSA, the statutory regulator whose share of responsibility for the misfortunes of some or all of LBIEs clients is not an issue in these proceedings) that the non segregation was happenstance and that equal treatment seems fairer than randomness.
+With great respect to the Court of Appeal, I regard that approach as inappropriate.
+The court has to give directions to the administrators on the basis of the assumed facts set out in the SAF.
+Those assumed facts are stated for the most part at a high level of generality, and with an almost clinical detachment from what the judge referred to as LBIEs shocking underperformance.
+We simply do not know how it came about that so much clients money was paid into house accounts when it should have been segregated.
+In particular, apart from the terse statements in SAF 2.52 (para 58 above) we do not know the circumstances in which LBIE came to overlook, or decide not to apply 7.1.12G (Affiliated companies) in dealing with Lehman Brothers affiliates (SAF 2.52(1) and (2)); or the circumstances in which terms were negotiated with clients leaving room for argument as to whether client money protection was wholly or partly excluded (SAF 2.52(3)).
+There is no basis, in my respectful opinion, for deciding that one scheme of distribution would be fairer than another.
+Our task is to construe CASS 7, and then apply it to the assumed facts.
+In construing CASS 7 we have to look at its essential scheme and structure.
+Beyond that a purposive approach gives little assistance, since it is plain (as already noted) that neither the Directives nor CASS 7 contemplate non compliance with regulatory requirements (in the judges words) on a truly spectacular scale.
+Both Lord Neuberger and Arden LJ gave some weight to the statutory trust being a single trust, without much explanation of what that meant or why they saw it as significant.
+The trust is declared in simple terms as affecting client money, but the detailed guidance, especially that in 7.9.3G, shows that some client money will be pooled in general client bank accounts, while other client money will be held separately in designated client bank accounts.
+Some but not all clients will be entitled to interest on their client money (7.2.14R).
+A bank holding client money may fail (as Bankhaus did) and on a SPE any loss will fall rateably only on those clients whose money was deposited with that bank not on all clients.
+So the single trust argument does not provide much support for the claims theory.
+The majority judgments in this court
+Lord Dyson disagrees with the views set out in para 81 above.
+In his view (para 159) a purposive interpretation clearly supports the claims basis for participation.
+That is because the Directives overriding purpose is to safeguard the assets of all clients and to provide all clients with a high degree of protection (his emphasis).
+This purpose is to be achieved, in his view, by a solution which means that no client of LBIE is provided with a high degree of protection, even those whose funds were (at all times down to the PPE) meticulously segregated and accounted for in accordance with CASS 7.
+With the greatest possible respect, I simply cannot follow this argument.
+I consider the majority view also gives insufficient weight to the fact that, although CASS 7 provides a detailed code, that code is erected on the foundation of the general law of trusts.
+Lord Collins refers (para 186) to Professor Gowers Review of Investor Protection (1984), noting that under English law segregation of funds provides a client with insufficient protection unless it is backed by the clients continuing beneficial ownership.
+So (as already noted) CASS 7 was not gold plating the Directives.
+But it is equally clear that a trust without segregation is a very precarious form of protection because of the risk or rather, in this context, the strong probability that the element of trust property in unsegregated funds will rapidly become untraceable.
+Immediately before the PPE, many of the non segregated clients probably the great majority of them had no identifiable trust property held in trust for them.
+The funds of the segregated clients, by contrast, belonged in equity, immediately before the PPE, to the respective clients for whom they had been segregated.
+Lord Dyson (para 144) and the others in the majority evidently regard it as realistic to suppose that those segregated clients accepted the risk of having the bulk of their beneficial interests divested in order to compensate other non segregated clients who, immediately before the PPE, had no beneficial interest in any identifiable trust property (and of whom, and of whose affairs, the segregated clients knew nothing).
+The majoritys decision makes investment banking more of a lottery than even its fiercest critics have supposed.
+Internal client money reconciliation (the Annex)
+Any trustee which holds large sums of money in trust for clients must have in place appropriate procedures, keep accurate records, and regularly reconcile its balances.
+For a financial services firm like LBIE, which offered a wide variety of services to a large number of clients, these obligations were of particular importance, and CASS 7.6, together with the Annex, laid down detailed and fairly complicated rules.
+These were needed because clients did not leave their money inactive.
+They deployed it in trading activities in which their positions might change from day to day.
+So the daily internal reconciliation had to cover clients money held in client transaction accounts (SAF 2.12 and 2.42 to 2.49) or committed to futures or other margin transactions (SAF 2.28 to 2.39).
+These complications are reflected in the Annex.
+I gratefully adopt the judges summary (paras 256 to 258): 256The standard method of client money reconciliation is set out in [the Annex].
+It requires a firm on each business day to identify its client money requirement (as defined by paragraph 6) and to ensure that its client money resource is at least equal to the client money requirement. 257.
+The firms client money requirement is (in the first of two alternative formulations in paragraph 6) the aggregate of all individual client balances, excluding negative client balances and client equity balances, together with the total margined transaction requirement, which is (as appears from paragraph 14) the aggregate of all positive client equity balances, subject to certain deductions which do not matter for present purposes. 258.
+Paragraphs 12, 18 and 19 of [the Annex] give the firm certain discretions as to how to carry out these calculations.
+Paragraph 12 gives the firm a discretion to deduct fees and other expenses due and payable by the client to the firm.
+Paragraph 18 (further explained by paragraph 19) gives the firm a discretion to make an offset between a positive individual client balance and a negative client equity balance, or vice versa, so as to reduce either the individual client balance or the client equity balance.
+Client equity balance is defined in the glossary as the amount which a firm would be liable (ignoring any non cash collateral held) to pay to a client (or the client to the firm) in respect of his margined transactions if each of his open positions was liquidated at the closing or settlement prices published by the relevant exchange or other appropriate pricing source and his account closed.
+That explains why the balance can be either positive or negative.
+Briggs J went on (paras 258 to 261) to a detailed consideration of 7.9.7 R, under which it is mandatory, after a PPE, to make the paragraph 18 offset which has until then been discretionary.
+That point is best considered as part of the discussion of 7.9.6R and 7.9.7R, which follows.
+The third issue: the effect of primary pooling
+Mr Miles arranged his written and oral submissions so as to deal with the third issue (how is the CMP to be distributed?) before the second issue (what is to go into the CMP?).
+There are advantages in that approach.
+The second issue, if understood (as it must be) in a way that does not pre empt the third issue, becomes a relatively narrow issue limited to any money which was held in house accounts at the PPE and was identifiable, under the general law of trusts, as clients money.
+Mr Zacaroli submitted that if he lost on the second issue he could still win on the third, and (he might have added) the third issue is almost certainly of much greater importance in financial terms, both to his client and to the other claimants.
+I shall therefore adopt Mr Miless approach and consider the third issue before the second issue.
+PPE: It is worth repeating the crucial provisions which come into operation on a 7.9.6R If a primary pooling event occurs: (1) client money held in each client money account of the firm is treated as pooled; and (2) the firm must distribute that client money in accordance with CASS 7.7.2R, so that each client receives a sum which is rateable to the client money entitlement calculated in accordance with CASS 7.9.7R. 7.9.7R (1) When, in respect of a client, there is a positive individual client balance and a negative client equity balance, the credit must be offset against the debit reducing the individual client balance for that client. (2) When, in respect of a client, there is a negative individual client balance and a positive client equity balance, the credit must be offset against the debit reducing client equity balance for that client.
+At the beginning of his discussion of the second issue Briggs J observed (para 166): The (perhaps old fashioned) principle of construction that words are there for a purpose suggests that the phraseology used was designed to achieve at least the following two purposes.
+The first is that it was not the intention of the draftsman to capture all client money held by the firm, but only client money held in each client money account of the firm.
+Secondly, it was not the intention to capture all money held in each client money account of the firm, but only client money held in such accounts.
+I agree that that is the right starting point, not only for the second issue, but also (as they are so closely connected) for the third issue.
+The expression client money account is not defined in the glossary, but it naturally refers to (i) every client bank account (which is a defined term and covers every general client bank account, every designated client bank account and every designated client fund account of the firm, those being the different forms of account mentioned in 7.9.3G) and (ii) every client transaction account (which is a defined term and is explained in 7.4.16G).
+These are the accounts affected by the internal reconciliation obligation, as appears from the unnumbered preamble to the Annex.
+Arden LJ considered (para 136) that the expression client money account must have been deliberately chosen as being wider than client bank accounts and client transaction accounts but I do not understand her reasoning and I respectfully differ from her conclusion.
+Lord Neuberger considered the textual arguments to be much more evenly balanced (paras 205 to 215) and he seems ultimately to have decided the point by a general appeal to fairness, with which I have already expressed my respectful disagreement.
+For these reasons I approach the third issue on the provisional basis, at least, that the CMP the distributable pool consists of the aggregate of the segregated funds holding clients money immediately before the PPE.
+Those funds are assumed to have been subject to internal reconciliation on every business day, following the detailed procedure in the Annex, so that the client money resource is at least equal to the client money requirement (Annex, paras 2 and 6).
+That pool is to be distributed in accordance with CASS 7.7.2R, so that each client receives a sum which is rateable to the client money entitlement calculated in accordance with CASS 7.9.7R.
+As the judge observed (para 251), had this provision stopped at the comma after 7.7.2R there would have been no doubt but that the clients entitled to participate in the distribution were those identified in the last reconciliation.
+They were under 7.7.2 R (2) the clients . for whom that money is held and it was to be distributed according to their respective interests in it.
+In the course of his excellent submission Mr Miles urged that each client in 7.9.6R must be taken as meaning what it says.
+But the words must be read in context.
+When read in context, they mean each client for whom client money is held.
+In In re Global Trader Europe Ltd [2009] EWHC 602 (Ch) [2009] 2 BCLC 18, para 99, Sir Andrew Park reached the same conclusion as Briggs J on this point.
+The second part of 7.9.6R(2) begins with the words so that.
+Those words are apt to introduce the natural consequences of what has gone before, rather than to herald an abrupt change.
+The reference to a rateable distribution of the CMP indicates the possibility of a shortfall, and in practice a shortfall is almost inevitable on the failure of the firm, since in that event the costs of distributing the CMP are to be a first charge on it under 7.7.2R(4).
+There are also some more technical reasons which may produce a shortfall in the CMP, though any such shortfall would probably be relatively small.
+These are identified in paras 262 to 269 of the judges judgment.
+I agree with the judges analysis and I need not repeat it.
+The final words of 7.9.6R(2) are calculated in accordance with CASS 7.9.7R.
+The judge said of this (paras 254 to 256, whose language I gratefully adopt as I cannot improve on it): 254.It is this concluding phrase, and its incorporation of CASS 7.9.7R, that lies at the heart of the argument of the protagonists for a claims basis of sharing in the CMP.
+Put another way, the case for rejecting a contribution basis rests wholly on an understanding of CASS 7.9.7R, to which I now turn. 255.
+The first thing to notice about CASS 7.9.7R is that it does not purport to constitute a comprehensive formula for the calculation of a client money entitlement.
+It merely provides for the offset of two particular types of accounting debit against two particular types of accounting credit.
+By subparagraph (1) a positive individual client balance is to be reduced by offsetting a negative equity balance.
+By subparagraph (2) a positive client equity balance is to be reduced by any negative individual client balance.
+It says nothing about the situation where a client has positive balances, or negative balances, of both types.
+It is, as Mr Zacaroli described it, a reducing mechanism.
+Its effect is, in the stated circumstances, to reduce what otherwise might have been identified as a clients client money entitlement, which is to serve as the basis for his rateable participation in the CMP. 256.
+In the case of a reasonably compliant firm, it may be assumed that the basis upon which the firm had segregated client money for each of its clients prior to the PPE would be disclosed from the last internal client money reconciliation account, upon the basis of which (for example) a firm using the alternative approach would have adjusted the amount of the segregated accounts as at the PLS.
+The judge then continued with the passage that I have already quoted at para 90 above, and went on to comment that the option conferred by paragraph 18 of the Annex permits, but does not require, a firm to carry out precisely the same offsetting process as is made mandatory after a PPE by CASS 7.9.7R (para 258).
+He regarded the purpose of 7.9.7R as obscure (para 232).
+Arden LJ noted (para 152) that it has a limited operation, but did not go further into its purpose.
+Nor did Lord Neuberger (paras 189 and, in a quotation from the judge, 228).
+I agree with Briggs J that it is very hard to see why one point of detail in the Annex has been singled out, as it were, for particular mention in 7.9.7R.
+But I am in full agreement with his conclusion (para 261) that this obscure provision does not necessitate a construction, contrary to all other indications, that the CMP is to be distributed on the basis of the claims theory rather than the contributions theory.
+For these reasons, which are the same as those of the judge, I would allow GLGs appeal on the third issue.
+The second issue: final reconciliation as at the PPE
+If the first and third issues are resolved in the way set out above, the second issue is seen to be within a relatively narrow compass.
+It becomes focused on movements in the client money requirement as between the PLS (close of business on Thursday, 11 September 2008, the critical time for the data on which an internal reconciliation took place on Friday, 12 September) and the PPE (7.56am on Monday, 15 September).
+I shall refer to this period as the gap period.
+This court has to decide the issue as a matter of principle, proceeding on the basis of assumed facts.
+But it may be worth pulling together the few passages in the SAF which touch on this point.
+SAF para 2.26 (quoted in paras 56 and 57 above) mentions the possibility that client money received into non core client money accounts or house accounts would have been passed up to LBHI as part of the liquidity management process.
+SAF 2.50.1 states that a total sum of over $45m of client money was paid to clients from house accounts during the gap period.
+At first instance Mr Zacaroli accepted that a client who was repaid client money during the gap period could not expect to be repaid twice (para 268 of Briggs Js judgment).
+SAF 2.50 does not state in terms how much client money was received during the gap period.
+But SAF para 2.20.3 states that 24 house accounts regularly used for client transactions had at the PLS credit balances totalling about $162m, and that at the PPE 26 accounts had credit balances totalling about $297m.
+The third supplement to the SAF, para 1, adds to this that the 24 accounts mentioned in SAF 2.20.3 were not swept to zero on 12 September 2008 (that point does not seem to have been picked up by Briggs J at para 110 of his judgment).
+Para 2 of the third supplement adds that on the current state of the administrators knowledge much of the money in these accounts was probably not clients money.
+It is not necessary, or indeed possible, to try to go much further into the incompletely stated (and in any event assumed) facts about movement of funds in the gap period.
+But the mere fact that there was no sweep under the liquidity management process on 12 September 2008 makes it possible that significant sums of client money are traceable, under the general law of trusts, as still held in LBIEs house accounts at the PPE.
+In practice the second issue resolves itself into a contest between two theories. (1) One theory (the final reconciliation theory) is that as soon as possible after the PPE LBIE, although then under the control of the administrators, should have carried out a final reconciliation in accordance with the provisions of the Annex. (2) The other theory (the general trust law theory) is that it was not the administrators duty to carry out a final reconciliation, but that a similar result would be produced by clients whose money was stranded in a house account during the gap period claiming it, not under CASS 7, but under the general law of trusts.
+In reply to a question from Lord Clarke Mr Miles said (Day 3, page 93) that exactly the same result was produced by either route.
+I do not think that is quite right (though I may have misunderstood Mr Miles).
+Under the final reconciliation theory there would be a small alteration in the constitution of the CMP and any clients making last minute contributions to the CMP would share rateably, and suffer rateably any inadequacy in the pool (whether from the failure of Bankhaus, or from the costs of distribution under 7.7.2R(4), or from any other cause).
+Under the general trust law theory they would claim the whole of their respective contributions, so far as sufficient client money could be traced and identified, and there might be some deduction for administrative costs under the principle in In re Berkeley Applegate (Investment Consultants) Ltd [1989] Ch 32.
+So the outcome would not be exactly the same, but it might well be similar.
+Under the general trust law theory an unsegregated last minute provider of client money would be left to his claim as an unsecured creditor only if and so far as his money was not traceable and identifiable in credit balances in house accounts.
+The guidance in 7.9.8G (set out in para 43 above) is therefore (to put it no higher) incomplete.
+Briggs J recorded (para 127) that before him leading counsel then appearing for the FSA roundly declared that it was wrong, and that the FSA intended to change it as soon as practicable.
+In his judgment Briggs J considered the final reconciliation theory (though not under that name) as part of an important passage (paras 199 to 226), much of which was concerned with whether LBIE was under a duty to top up the CMP out of its own funds.
+He held that that would be contrary to basic principles of insolvency law, and there is no appeal on that point.
+He then more briefly rejected the suggestion that there was an obligation to top up the CMP with any identifiable client money in house accounts, concluding (para 224): In my judgment the lacuna is sufficiently filled by the general law, which permits those clients whose money is identifiable within house accounts, and not therefore part of the CMP, to pursue proprietary claims for its recovery, if they can surmount the evidential obstacles imposed by the need to trace.
+It is interesting to note (para 225) that at that stage Mr Zacaroli, if correctly reported, seems to have been supporting the final reconciliation theory, or something like it.
+In the Court of Appeal Arden LJ expressed a clear preference for the final reconciliation theory (paras 140 to 142).
+I have already noted that Lord Neuberger did not cover this point, and the order of the Court of Appeal leaves it in doubt whether Sir Mark Wallers general agreement with Arden LJ should be taken as covering this particular point.
+Before this court Mr Miles and Mr Crow have supported the final reconciliation theory with some detailed written submissions (paras 179 to 183 and 49 to 52 of their respective written cases) as well as in oral argument.
+They have pointed out that it avoids a bifurcated scheme and achieves a symmetrical result.
+Mr Zacaroli dealt with this point quite briefly in his written case (para 213) and in his oral submissions.
+On this issue I accept the submissions of Mr Miles and Mr Crow.
+There was no real challenge to Mr Miles argument that there is nothing in CASS 7, or in the general law of insolvency applicable to administrators, to prevent a final internal reconciliation being carried out on the data as they were at the PPE, limited to taking account of events during the gap period (and not reopening previous reconciliations down to and including the PLS).
+That interpretation avoids bifurcation, achieves symmetry, and assimilates the effect of the alternative approach with that which would have occurred under the normal approach.
+I would therefore dismiss GLGs appeal on the second issue so far as it relates to movements in clients entitlements during the gap period.
+But I would allow the appeal to the extent of limiting the wide language of the direction or declaration in para 5 of the Court of Appeals order.
+Whatever the outcome of this appeal, the terms of the order are going to need careful consideration and drafting in order to give the administrators the clearest possible guidance.
+As a postscript, I have not overlooked the parties submissions on two points: legislative history and the need for a timely, workable solution.
+As to the first, counsel have been very helpful in exploring how this area of regulatory law has evolved, but I do not think it gives the court any significant assistance in the task of construing CASS 7.
+As to the need for the administrators to have a workable scheme which provides for a timely distribution, that is an aspiration which has already, sadly, perished.
+A straightforward, timely distribution is impossible because of LBIEs massive non compliance with CASS 7.
+Because of it, there is in one sense no commercially sensible solution to the problem, and that is the bleak situation in which the court has to give guidance to the administrators.
+But I have little doubt that the decision of the majority will lead to much more delay, uncertainty and expense than if the judges directions had been restored.
+LORD CLARKE
+I had initially intended simply to add my agreement with the judgment and reasons of Lord Dyson.
+That intention was formed on the basis that it is rarely helpful to publish a concurring judgment which does no more than repeat the conclusions and reasoning of the principal writer.
+However, in the light of the sharp division of opinion between the members of the court, I offer this short contribution.
+I remain of the view that this appeal should be dismissed for the reasons given by Lord Dyson.
+I also agree with the reasoning in the short judgment written by Lord Collins.
+In particular, I agree with them that the questions raised by the issues in this appeal depend, not upon the ordinary law of trusts, but on the true construction of the relevant provisions of CASS 7.
+Lord Dyson has described with clarity the factual background against which CASS 7 must be construed.
+The most important features of that background are MiFiD and the Implementing Directive, the purposes of which include providing a high level of protection for all clients who provide moneys for investment on their behalf.
+As I see it, one of the principal purposes of CASS 7 is to provide protection as between clients on the one hand and the firm on the other.
+Clients as a whole have a higher level of protection if all clients who have provided money and who have a claim against the company are entitled to claim against the pool than if such claims are limited to those with a proprietary right.
+I do not see anything odd or inappropriate in such a conclusion.
+On the contrary, it seems to me to be consistent with the principles underlying MiFiD and the Implementing Directive.
+All the judges who have considered the issues have concluded that a trust arises on receipt of client moneys by the firm.
+Thus CASS 7.7.2(1)R provides that a firm receives and holds money for the purposes of the client money rules and the distribution rules.
+By CASS 7.2.1 client money means any money that a firm receives or holds for or on behalf of a client.
+It follows that the fiduciary duties imposed by CASS are owed by the firm before there is segregation of client moneys and whether or not there has been segregation.
+By CASS 7.2.15, which is under the heading Discharge of fiduciary duty, money ceases to be client money in certain specific circumstances, notably when it is paid away on the instructions of the client.
+Until then, the money remains client money and, importantly, the firm retains fiduciary duties in relation to it.
+I agree with Lord Collins approach to the first issue.
+In particular I agree with Lord Collins conclusion at para 192 that, if the trust does not arise until segregation, then whether or not clients are protected by CASS 7 would become arbitrary and dependent upon the firms own practices; and the greater the level of incompetence or misconduct on the part of the firm, the less the protection for the clients.
+This consideration seems to me to support the conclusion that CASS 7 is intended to protect all clients who provided money and have contractual claims.
+Similar considerations support Lord Dysons conclusions on the second issue at paras 161 to 167, namely that money received by the firm before a PPE is to be treated as pooled, whether it is received before or after the PLS.
+In particular I agree with his conclusions at paras 164 to 167.
+By CASS 7.9.6R(1), if a PPE occurs, client money held in each client money account of the firm is treated as pooled.
+I agree with Lord Dyson at para 164 (and Lord Neuberger of Abbotsbury MR [2011] Bus LR 277, paras 207 and 208), that the expression client money account of the firm should be given the wider meaning, namely that it extends to any account of the firm into which client money has been paid and that it is not restricted to segregated client money accounts.
+I agree with Lord Dyson at para 165 that to exclude identifiable money in house accounts from the distribution regime runs counter to the policy underlying CASS, which is to provide a high degree of protection to all clients in respect of money in each money account of the firm (Lord Dysons emphasis).
+As I read CASS, it is only CASS 7.9.6R(1) which governs what money is treated as pooled.
+Thus it is only client money held in a client money account.
+If the narrower meaning is given to that expression, only money held in a segregated account is included.
+All other client money, whether received in the gap period between the PLS and the PPE, or before the PLS and not segregated (although it ought to have been), will not be treated as pooled because it would not be covered by CASS 7.9.6R(1) and there is no other provision of CASS under which it would be so treated.
+Yet it is accepted by Lord Walker and Lord Hope that it would be unsatisfactory to exclude money which could not have been segregated because it was received by the firm after the PLS because of the inevitable time gap between segregations.
+They therefore accept that unsegregated moneys received by the firm between the PLS and the PPE should be treated as pooled and that a reconciliation should take place as at the PPE.
+They prefer that approach (the final reconciliation theory), to the general trust theory, under which clients whose money is stranded in a house account during the gap period would have to rely upon the general law of trusts.
+I agree with them that it would be unsatisfactory to exclude money which was received after the PLS.
+However, as I see it, the difficulty with the final reconciliation theory, if it is limited to money received in the gap period between the PLS and the PPE, is that it has no support in CASS.
+I agree with Arden LJ [2011] Bus LR 277, para 142 and Lord Walker that there must be a final reconciliation as at the PPE.
+I can however see no reason why it should be limited to money received after the PLS and in this respect I agree with Arden LJ at para 142.
+It seems to me that it must be the duty of the administrators to conduct the reconciliation exercise fully and effectively.
+Thus, in principle, it must be their duty to conduct the reconciliation in accordance with CASS 7.
+I see no warrant for their being entitled to assume that the segregation as at the last PLS had been carried out correctly.
+Indeed, in a case where the failure of the firm has caused the PPE, it is not unlikely that the firm will not have done so.
+There are many possible ways in which the firm may have carried out the last segregation otherwise than in accordance with CASS.
+For example, there may have been no segregation for several days (or more) before the PPE.
+Or the firm may have segregated only the funds of one client (or some clients) and not others, or it may have segregated only some of a particular clients (or particular clients) money.
+A number of questions arise.
+For example, what would be the position if the firm had conducted no segregations at all for some days preceding the PPE? Would the administrators final reconciliation cover: (a) all identifiable moneys deposited between the date of the last actual segregation and the PPE; or (b) all identifiable moneys deposited between the date when the last segregation ought to have taken place and the PPE?
+Neither option seems satisfactory.
+Option (a) draws a sharp dividing line at the time of the last actual segregation, no matter how limited (would a single act of segregation suffice?) or ineffectual (would segregation of 1 suffice?) it may have been.
+However option (b) draws an arbitrary distinction between clients who deposited moneys during the last business day before the PPE and all other clients.
+If LBIE wholly failed to comply with their segregation obligation for several days in a row, why afford preferential treatment to clients who deposited funds on the last day before the PPE? All these clients funds would be unsegregated and, as I see it, they should be treated in the same way.
+Either they should all be treated as having money in the pool or none of them should be so treated.
+As I understand it, Lord Walker and Lord Hope accept that unsegregated client money received by the firm between the PLS and a PPE must be treated as pooled under CASS 7.9.6R(1).
+In my opinion, that is only permissible on the basis that client money in a firm account is held in a client money account of the firm.
+It seems to me that, if that is so, there is no reason not to hold that client money held in a firm account before the PLS is also in a client money account of the firm.
+In these circumstances, in agreement with Lord Dyson at paras 165 and 167 and with the Court of Appeal (per Arden LJ at paras 124 to 142 and Lord Neuberger at paras 204 to 224), I would hold that the primary pooling arrangements apply to client money in firm accounts whenever it was paid in and that issue 2 should be answered on that basis.
+That conclusion seems to me to be entirely consistent with the conclusion (reached by everyone) that a trust comes into existence on receipt of client money by the firm.
+The answer to issue 2 seems to me to point the way to the answer to issue 3.
+Although I can see that, if issue 3 is taken first, it can be said with some force that the reverse is the case, it does seem to me that, logically, it is sensible to take issue 2 first, as the Court of Appeal did.
+It makes more sense to identify the CMP before deciding who should share in it rather than the other way round.
+I agree with Lord Neuberger at para 226 that, as he put it, it could be dangerous to look at the general law of trusts because CASS 7 is intended to be a code.
+The distribution model underlying the CASS 7 trust differs markedly from that of private trust law.
+The focus of issue 3 is CASS 7.9.6R(2), which provides that, if a PPE occurs: (2) the firm must distribute that client money in accordance with CASS 7.7.2R, so that each client receives a sum which is rateable to the client money entitlement calculated in accordance with CASS 7.9.7R.
+It appears to me that, if that paragraph is read as a whole, as to my mind it should be, the words after the comma are of considerable importance because they tell the firm that it must distribute client money so that each client receives a sum which is rateable to the client money entitlement in accordance with CASS 7.9.7R.
+In short, the distribution must be in accordance with CASS 7.9.7.
+Reference to that provision seems to me strongly to support the claims basis.
+I agree with Lord Neubergers conclusion at para 227 that, once one accepts that client money includes such money when paid into a mixed money house account, then the concept of "client money entitlement" carries with it the notion of all money, which (in my opinion correctly) he says is a point reinforced by CASS 7.9.1R.
+As Lord Dyson notes at para 152, the judge (at para 243) described the respondents case on the construction of CASS as involving a formidable textual argument.
+With apologies for repetition, but because of what I regard as its significance in this appeal, I set out the argument again here.
+In para 242, after referring to CASS 7.9.6R(2) and underlining calculated in accordance with CASS 7.9.7R, the judge said: ii) CASS 7.9.7R requires, on a client by client basis, a netting process to be carried out between each client's individual client balance and that client's client equity balance. iii) CASS 7.9.9R(2) makes it clear (albeit for a different purpose) that the client money entitlement for each client will be calculated in accordance with CASS 7.9.7R as at the time of the PPE. iv) The phrase client equity balance is defined in the Glossary by reference to the amount which a firm would be liable to pay to a client in respect of that clients margined transactions if each of his open positions was liquidated at the prices published by the relevant exchange and his account closed.
+It is a form of entitlement having nothing to do with the amount contributed by the client to the firm's segregated accounts. v) The phrase individual client balance is not a term defined in the Glossary, but it is fully explained in paragraph 7 of Annex 1, again in terms which are based upon the contractual position between the client and the firm, rather than the amount actually contributed by the client to the firm's segregated accounts. vi) Thus it necessarily follows that the phrase client money entitlement, where used both in CASS 7.9.6R(2) and 7.9.9R(2) is a reference to the clients contractual entitlement to have money segregated for it, rather than to the client's proprietary interest in the CMP, derived from having had its money actually segregated, ie paid into the segregated accounts from which the CMP is constituted.
+Lord Dyson has considered and rejected the reasons given by the judge for not accepting the textual argument.
+I agree with Lord Dysons conclusions at paras 152 to 160.
+In particular, I agree with him that there is no legitimate basis upon which CASS 7.9.6R(2) can be construed by disregarding the words after the comma.
+On the contrary, as indicated above, they point the way.
+Moreover, they are mandatory and clear.
+I agree with Lord Dyson that there is no good reason for construing the expression each client in CASS 7.9.6(2) as being limited to each client for whom money is held.
+As I see it, each client means what it says and thus includes each client who deposited money and has a claim.
+Further, I see nothing ambiguous in the reference in CASS 7.9.6(2) to CASS 7.9.7R.
+It simply provides that the client money entitlement must be calculated in accordance with CASS 7.9.7R.
+There are a number of difficulties with the contributions approach.
+For example, the consequence of treating the PLS as the critical moment is that parties whose moneys were deposited in house accounts after the PLS would certainly have their funds effectively segregated by the administrators (provided that those moneys are still identifiable).
+Those parties would therefore be able to participate in the CMP.
+By contrast, clients whose moneys were deposited before the PLS would only be able to participate in the CMP if the firm actually complied with their obligation to segregate those funds.
+Given the firms widespread failure to comply with this obligation, many of those clients would not be able to participate in the CMP.
+The net effect would be that parties who deposited funds in house accounts after the PLS would be likely to be in a better position than parties who deposited funds in house accounts before the PLS.
+This seems to me to be a strange result.
+If, as I believe to be the case, CASS 7.9.7R applies to any distribution, there can in my opinion be no real doubt that the claims basis must be correct.
+If the basis of the right to claim were a contributions basis, a clients entitlement to participate in the CMP would depend on whether or not it had made a contribution to the CMP.
+Yet the distribution rules, namely CASS 7.9.6R and 7.9.7R, make it clear that the quantum of a participants share depends not upon the size of their contribution to the pool but upon the size of their contractual entitlement vis vis the firm.
+In this regard I agree with the conclusions of Arden LJ at paras 154 to 164.
+In particular I agree with her concerns expressed in paras 156 and 157 that, on the contributions basis, significant problems arise which cannot be dismissed as a glitch in the way in which they were by the judge at para 265.
+In short I agree with Lord Dyson, Lord Neuberger, Arden LJ (and indeed Sir Mark Waller) that the natural construction of the CASS rules is that client moneys as at the PPE are to be distributed on a claims and not a contributions basis.
+I also agree with them that such a construction gives better effect to the underlying purpose of the CASS code, namely the protection of all those who deposited money with the firm.
+LORD DYSON
+I am grateful to Lord Walker for setting out the facts and the relevant documentation so clearly and so comprehensively.
+This appeal raises three issues concerning the true construction of CASS 7.
+These are (i) when does the statutory trust created by 7.7.2(R) arise; (ii) do the primary pooling arrangements apply to client money held in house accounts; and (iii) is participation in the notional client money pool (CMP) dependent on actual segregation of client money? I agree with the conclusions of Briggs J, the Court of Appeal and Lord Walker, Lord Hope and Lord Collins on the first issue.
+I cannot improve on their reasons for holding that the statutory trust created by 7.7.2(R) arises at the time of the firms receipt of the client money.
+But I have reached a different conclusion from that of Briggs J, Lord Walker and Lord Hope on the second and third issues.
+Before I turn (to the extent that it is necessary to do so) to the points of detail that have been debated so meticulously, I wish to make two preliminary points.
+Two preliminary points
+The first point is that CASS 7 provides a detailed code for the safeguarding of client money by firms regulated by the Financial Services Authority.
+On the assumed facts, there was shocking underperformance by LBIE.
+As the judge put it, there was non compliance with the regulatory requirements on a truly spectacular scale (para 4).
+Furthermore, the most significant group of clients whose money LBIE failed to segregate was its own affiliates, who have advanced money claims against LBIE in excess of $US 3 billion.
+But it is important not to allow these exceptionally striking facts to influence the outcome of this appeal.
+The issues of construction that are raised are of general application.
+Their resolution cannot depend on the size of the firm or the scale of its non compliance or the identity of the particular client in question.
+Indeed, 7.1.12G states that a firm that holds money on behalf of, or receives money from, an affiliated company in respect of MiFID business must treat the affiliated company as any other client of the firm for the purposes of [chapter 7].
+The second point that I wish to emphasise at the outset is that the client money which is subject to the statutory trust is any money that a firm receives from, or holds for, or on behalf of, a client in the course of, or in connection with, its MiFID business unless otherwise specified in this section (7.2.1R).
+Accordingly, unless otherwise specified in section 7.2, all client money is subject to the statutory trust.
+The Directives
+It is not in issue that CASS 7 was made for the purpose of fulfilling the EU requirements contained in the Markets in Financial Instruments Directive 2004/39/EC (MiFID) and the Commission Directive 2006/73/EC (the Implementing Directive) and that CASS 7 should therefore be interpreted, as far as possible, so as to give effect to these Directives: see, for example, HM Revenue and Customs Comrs v IDT Card Services Ireland Ltd [2006] STC 1252.
+As Arden LJ explained at paras 59 to 62 of her judgment, this requires a two stage test to be applied.
+The first involves interpreting the Directives.
+The second involves interpreting CASS 7 in the light of the meaning of the Directives.
+At para 57 of his judgment, Briggs J correctly stated that domestic legislation which is made for the purposes of fulfilling the requirements of EU law contained in a Directive must be interpreted in accordance with the following principles: (i) it is not constrained by conventional rules of construction; (ii) it does not require ambiguity in the legislative language; (iii) it is not an exercise in semantics or linguistics; (iv) it permits departure from the strict and literal application of the words which the legislature has elected to use; (v) it permits the implication of words necessary to comply with Community law; and (vi) the precise form of the words to be implied does not matter.
+The purposes of MiFID and the Implementing Directive include providing a high level of protection for clients and safeguarding their rights to funds in the event of the insolvency of the firm to which their funds have been entrusted.
+The recitals to MiFID include recital (2) which states it is necessary to provide for the degree of harmonisation needed to offer investors a high level of protection (emphasis added); recital (17) which states that persons who provide the investment services and/or perform their investment activities covered by this Directive should be subject to authorisation by the home member states in order to protect investors and the stability of the financial system; and recital (26) which provides: in order to protect an investors ownership and other similar rights in respect of securities and his rights in respect of funds entrusted to a firm, those rights should in particular be kept distinct from those of the firm.
+The aim of protecting investors is also expressed in recitals (31), (44), (61) and (71).
+Article 13(7) of MiFID requires an investment firm to make adequate arrangements in relation to financial instruments belonging to clients to safeguard clients ownership rights, especially in the event of the investment firms insolvency.
+Article 13(8) requires an investment firm, when holding funds belonging to clients, to make adequate arrangements to safeguard the clients rights and prevent the use of client funds for its own account.
+The Implementing Directive contains detailed rules for giving effect to the objectives of MiFID.
+Its recital (2) states that rules for the implementation of the regime governing organisational requirements for investment firms should be consistent with the aim of [MiFID].
+Recital (5) states that the rules for the implementation of the regime governing operating conditions for the performance of investment services and activities should reflect the aim underlying that regime.
+That is to say they should be designed to ensure a high level of investor protection to be applied in a uniform manner through the introduction of clear standards and requirements governing the relationship between an investment firm and its client (emphasis added).
+Article 16 of the Implementing Directive contains rules for safeguarding client assets and gives effect to article 13(7) and (8) of MiFID.
+Article 16(1) makes provision for record keeping and accounts (para (1)(a) and (b)); conduct of reconciliations (para (1)(c)); ensuring that client financial instruments and funds that are deposited are identified separately, ie are segregated (para (1)(d) and (e)); and organisational arrangements designed to minimise the risk of loss or diminution of client assets or of rights in connection with those assets, as a result of fraud, poor administration, inadequate record keeping or negligence (para (1)(f)).
+Article 16(2) provides: If, for reasons of the applicable law, including in particular the law relating to property or insolvency, the arrangements made by investment firms in compliance with paragraph 1 to safeguard clients rights are not sufficient to satisfy the requirements of article 13(7) and (8) of [the MiFID Directive], member states shall prescribe the measures that investment firms must take in order to comply with those obligations.
+It follows that the effect of article 13(7) and (8) of MiFID and article 16(2) of the Implementing Directive is that member states are under a duty to prescribe measures that firms should take to ensure that there are adequate arrangements under the domestic law relating to insolvency to safeguard the clients rights to funds belonging to them in order to achieve the investor protection purpose of MiFID.
+When dealing with the first issue, Briggs J acknowledged the importance of interpreting CASS 7 by reference to the MiFID Directives (para 148).
+He said in relation to the first issue that an interpretation of 7.7.2R by reference to the Directives was strongly supportive of the case that a trust of client money received by a firm arises upon receipt, rather than only upon segregation.
+He added: Quite simply, that analysis better serves the MiFID objectives of protecting clients rights in relation to their funds, both from use of those funds for the firms own purposes, and from the consequences of the firms insolvency.
+He added that the imposition of a statutory trust was the kind of additional requirement contemplated by article 16(2) of the Implementing Directive necessary to make the requirements set out in article 16(1) effective in the context of the domestic law of a particular member state.
+I entirely agree with this approach.
+When he came to deal with the third issue, he did not derive decisive assistance from an analysis of the purposes behind the MiFID Directives.
+He said (para 234): On the one hand it may be said that the general aspiration to provide a high level of investor protection is best served by conferring a right to share in the CMP upon all clients whose money should have been segregated, whether or not it was.
+On the other hand, the MiFID Directives are, as I have sought to explain, aimed at the establishment of obligations and organisational requirements which, if complied with, would protect clients funds both from misuse by the firm, and from loss occasioned by the firms insolvency.
+The contemplation of the Directives was that this would be achieved by identification, reliable accounting and segregation, such that clients money actually dealt with in that way would be protected, but not otherwise.
+I shall examine the third issue later in this judgment.
+It seems that the judge considered that the underlying purpose of the Directives was sufficiently met by the introduction into our domestic law of the organisational requirements specified in article 16(1) of the Implementing Directive.
+In other words, the requirement in article 13(7) and (8) of MiFID to make adequate arrangements to safeguard the clients rights in relation to financial instruments and funds would be satisfied by meeting the specific requirements of article 16(1) of the Implementing Directive.
+But the requirements prescribed by article 16(1) are not to be equiparated with the requirements stated in article 13(7) and (8) of MiFID.
+Indeed, as the judge recognised when he addressed the first issue, article 16(2) contemplates that the arrangements made by investment firms in compliance with article 16(1) might not be sufficient to satisfy the requirements of article 13(7) and (8) of MiFID.
+The important point, however, is that the judge rightly acknowledged the principle that it is necessary to construe CASS 7 in a manner which promotes the purpose of providing a high level of protection for clients as required by the Directives.
+The third issue
+The second and third issues are closely related.
+Lord Walker and Lord Hope prefer to start with the third issue.
+I am content to take the same course.
+The question raised by this issue is whether participation in the CMP is based on (i) the amount of client money which has actually been segregated at the date of the primary pooling event (PPE) (the so called contributions basis for participation) or (ii) the amount which ought to have been segregated at that date (the so called claims basis for participation).
+The resolution of this issue depends on the proper interpretation of 7.9.6R, 7.9.7R and 7.7.2R.
+The starting point is 7.7.2R which provides that a firm receives and holds client money (ie any money that it receives from or holds for, or on behalf of, a client) on the terms set out in 7.7.2R (1) to (5).
+The beneficiaries of the trust are identified at 7.7.2R (2) as being the clients. for whom [the client money] is held, according to their respective interests in it and the trust is for the purposes of and on the terms of the client money rules and the client money (MiFID business) distribution rules (7.7.2R(1)).
+The client money rules are defined as the rules contained in 7.1 to 7.8.
+The client money (MiFID business) distribution rules (the distribution rules) are defined as the rules contained in 7.9.
+I accept that until a PPE occurs, client money is held for the purposes of 7.3, 7.4, 7.5, 7.6 and 7.8 (ie safeguarding, segregation, transfer to third parties, record keeping and internal reconciliation and protection (by notice to banks) of client money bank accounts).
+As Lord Walker says (para 77), these purposes are directed to the protection and management of clients money in the beneficial ownership of clients who are identified beneficiaries of the trust, being those (as 7.7.2R(2) puts it) for whom that money is held, according to their respective interests in it.
+Lord Walker says (at para 78) that the biggest objection to the claims basis of interpreting 7.9.6R is that it involves on the assumed facts of this case a cataclysmic shift of beneficial interest on the PPE, to the detriment of those clients who must have supposed that their funds were safely segregated in accordance with CASS 7.1 to 7.8.
+It would amount to the segregated clients funds being used as a strange form of compensation fund for disappointed clients whose funds had not been segregated.
+It is true that, on the assumed facts of this case, the claims basis can be said to involve a cataclysmic shift of beneficial ownership on the PPE.
+But that is because, on the assumed facts, there was a spectacular failure to comply with the CASS 7 rules for a very long period.
+But I have already counselled against allowing the exceptional nature of the assumed facts to compel a particular conclusion to the issues of construction that arise in this case.
+More importantly, CASS 7.7.2R provides that the trust is for the purposes and on the terms of the client money rules and the distribution rules.
+Thus 7.7.2R itself points to the beneficiaries under the distribution rules as being all the clients for whom the firm has received and is holding client money.
+In other words, such interest under the trust as any clients have is expressly on the terms of the distribution rules, of which 7.9.6R is the principal operative provision.
+Lord Walker says that the notion that clients must be taken to have implicitly accepted the risk of discovering, on a PPE, that their carefully segregated funds must be shared with non segregated clients (including LBIEs own affiliates) seems quite unrealistic (para 79).
+I respectfully disagree.
+The general scheme of CASS 7 is that all client money is subject to a trust that arises upon receipt of the money by the firm.
+This includes money received from the firms affiliated companies.
+I have already referred to the wide definition of client money in 7.2.1R (para 130 above).
+The client money rules are, therefore, intended to protect all the clients money received prior to a PPE.
+The distribution rules are intended to protect all the clients money in the event of a PPE.
+There is nothing surprising in the notion that, once a PPE occurs, the treatment of client money is subject to a different regime from that to which it was subject before.
+It is the exceptional nature of the assumed facts in this case which makes the consequences of a change of regime so striking.
+I accept that, in order to reach a conclusion on the third issue, it is necessary to examine the language of the relevant rules.
+But I start from the position that it is not inherently unlikely that the draftsman intended that clients with established proprietary interests in segregated funds should have those interests disturbed by the distribution rules in the event of a PPE.
+There is no a priori reason why the draftsman would not have intended to produce a scheme pursuant to which the protection afforded to clients is modified in the event of a PPE.
+There is nothing unrealistic in a scheme which provides that, in the event of the failure of a firm, the beneficial interests in the client money are adjusted so as to provide that each client receives a rateable proportion of the aggregate of all the client money; in other words that all clients share in the common misfortune of the failure.
+The draftsman had to decide what provision to make for the distribution of client money in the event of a PPE.
+He could have decided that pooling and distribution was to be limited to client money which had been segregated or that it should include all client money.
+That was a policy choice he had to make.
+Which choice he made depends on the true construction of CASS 7.
+In my view, it does not depend on a consideration of any general principles of trust law.
+I acknowledge that segregation is an important part of the CASS 7 system.
+But it does not follow that the draftsman intended that upon a PPE only segregated client money would qualify for distribution under the distribution rules.
+As Mr Miles points out, on any view of the distribution rules, client money which has been segregated is treated as pooled on a PPE and must be distributed so that each client receives a rateable share of the CMP.
+The distribution model underlying the CASS 7 trust therefore differs from that of private trust law.
+To this extent at least, the notion that a client has a fixed beneficial interest in the segregated moneys which cannot be disturbed on the failure of a firm is incorrect.
+The only question is how far that disturbance goes: is the rateable sharing with other segregated clients or with all clients?
+As I have said, the resolution of this question depends on the true construction of the relevant provisions of CASS 7.
+But in approaching this question of construction, it is necessary to bear in mind that (i) all client money is subject to the statutory trust and, (ii) where there is a choice of possible interpretations, the court should adopt the one which affords a high degree of protection for all clients who have client money with the firm and to safeguard their interests, thereby furthering the purposes of the Directives.
+It is not the purpose of the Directives to provide a level of protection only for those clients who are recorded in the firms ledger as clients with client money entitlements when the firm calculated the net amount to segregate at the last reconciliation.
+Lord Walker is of the view that, in construing CASS 7, we have to look at its essential scheme and structure.
+Beyond that, he says, a purposive approach gives little assistance, since it is plain that neither the Directives nor CASS 7 contemplate non compliance with regulatory requirements (paras 48 and 81).
+But even if the premise that the Directives did not contemplate non compliance with regulatory requirements is correct, it does not follow that rules introduced by member states to give effect to the Directives should not be construed in the manner which best fulfils the overriding purpose of the Directives to provide a high degree of protection to money entrusted by clients to investment firms.
+If there are two possible interpretations of CASS 7, it seems to me to be axiomatic that the interpretation which more closely meets the purpose of the Directives should be adopted.
+I do not see how this can be affected by whether the Directives did or did not contemplate non compliance with the regulatory requirements.
+As I have already said, the judge did not derive decisive assistance from the Directives because he considered that their purpose was met by the incorporation in CASS 7 of requirements which satisfy the provisions of article 16(1) of the Implementing Directive.
+But article 16(2) makes it clear that member states are required to prescribe the measures that firms must take in order to comply with the obligations set out in article 13(7) and (8) of MiFID, if compliance with article 16(1) does not suffice.
+I do not see why the existence in domestic law of rules which satisfy the requirements of article 16(1) makes it unnecessary to interpret the distribution rules contained in 7.9, so far as possible, as imposing obligations which satisfy the requirements of article 13(7) and (8) of MiFID, thereby affording clients a high degree of protection.
+I now turn to examine some of the detailed points arising from the language of the relevant provisions of CASS 7.
+So far as material, 7.9.6R provides: If a primary pooling event occurs: (1) (2) client money held in each client money account of the firm is treated as pooled; and the firm must distribute that client money in accordance with CASS 7.7.2R, so that each client receives a sum which is rateable to the client money entitlement calculated in accordance with CASS 7.9.7R.
+Mr Miles relies on the reference to a calculation in accordance with CASS 7.9.7R as supporting the claims basis rather than the contributions basis for participation.
+The steps in the argument were carefully set out by the judge at para 242 of his judgment as follows: (i) CASS 7.9.6R(2) requires the firm to distribute client money in accordance with CASS 7.7.2R, so that each client receives a sum which is rateable to the client money entitlement calculated in accordance with CASS 7.9.7R [his underlining]. (ii) CASS 7.9.7R requires, on a client by client basis, a netting process to be carried out between each clients individual client balance and that clients client equity balance. (iii) CASS7.9.9R(2) makes it clear (albeit for a different purpose) that the client money entitlement for each client will be calculated in accordance with CASS 7.9.7R as at the time of the PPE. (iv) The phrase client equity balance is defined in the Glossary by reference to the amount which a firm would be liable to pay to a client in respect of that clients margined transactions if each of his open positions was liquidated at the prices published by the relevant exchange and his account closed.
+It is a form of entitlement having nothing to do with the amount contributed by the client to the firms segregated accounts. (v) The phrase individual client balance is not a term defined in the Glossary, but it is fully explained in paragraph 7 of Annex 1, again in terms which are based upon the contractual position between the client and the firm, rather than the amount actually contributed by the client to the firms segregated accounts. (vi) Thus it necessarily follows that the phrase client money entitlement, where used both in CASS 7.9.6R(2) and 7.9.9R(2) is a reference to the clients contractual entitlement to have money segregated for it, rather than to the clients proprietary interest in the CMP, derived from having had its money actually segregated, ie paid into the segregated accounts from which the CMP is constituted. (vii) By way of a postscript, Mr Knowles submitted that, in any event, not all contributions to the segregated accounts were made in respect of particular clients.
+For example, he pointed to the prudential payments contemplated by CASS 7.4.21R. Segregation in relation to depot breaks is another example: see below.
+At para 243, the judge described this as a formidable textual argument.
+He rejected it for the following principal reasons.
+First, the phrase client money entitlement means different things in different places, so that its meaning in any particular paragraph must be informed by its context.
+Secondly, (for the reasons that he gave at paras 255 to 262) the correct interpretation of 7.9.7R does not support the claims basis for participation in the CMP.
+He pointed out that 7.9.7R does not purport to constitute a comprehensive formula for the calculation of a client money entitlement.
+It merely provides for the offset of two particular types of accounting debit against two particular types of accounting credit.
+It is a reducing mechanism, whose effect is, in the stated circumstances, to reduce what otherwise might have been identified as a clients client money entitlement, which is to serve as the basis for his rateable participation in the CMP (para 255).
+He said that the existence of these offsetting provisions is not sufficient to indicate that it was intended to go behind the last internal reconciliation account to establish if necessary by enormous forensic endeavour and even litigation, the true contractual entitlements of the firms clients to have their money segregated, without limitation in historical time, so as to include un segregated and partially segregated clients as beneficiaries of the CMP, with obvious adverse consequences in terms of the timely and efficient distribution of the pooled client money to the clients entitled to it (para 261).
+Both the judge (para 232) and Lord Walker (para 97) said that the purpose of 7.9.7R is obscure and, at least by inference, that the reference to it in 7.9.6R(2) cannot bear the weight that Mr Miles seeks to place on it.
+But I do not think that the reference in 7.9.6R (2) to the sum being calculated in accordance with CASS 7.9.7R can be brushed aside so easily.
+CASS 7.9.7R provides for a calculation which takes account of each clients individual client balance and client equity balance.
+The individual client balance calculation is dealt with in detail in para 7 of Annex 1.
+The client equity balance is defined in the glossary as the amount which a firm would be liable (ignoring any non cash collateral held) to pay to a client (or the client to the firm) in respect of his margined transactions if each of his open positions was liquidated at the closing or settlement prices published by the relevant exchange or other appropriate pricing source and his account closed.
+As Mr Miles says, the calculation involves an assessment of the clients actual and objective entitlement in respect of client money.
+It has nothing to do with the amount which may or may not in fact have been segregated for the client, nor with the ledger entries which the firm may have made in respect of any particular segregation or reconciliation.
+The reducing mechanism interpretation favoured by the judge (and supported by Mr Zacaroli) treats the phrase client money entitlement in 7.9.6R(2) as envisaging (i) a calculation by reference to the historical amounts recorded in the ledgers, and (ii) (as a downward adjustment) a calculation by reference to 7.9.7R.
+But there is no support for this two fold scheme of calculation in the language.
+As Mr Miles points out, 7.9.6R(2) simply refers to the client money entitlement being calculated in accordance with 7.9.7R.
+Like Lord Neuberger MR (para 230), I do not consider that there are sound reasons for rejecting the formidable textual argument.
+Lord Walker at para 94 (in agreement with the judge) says that, if 7.9.6R(2) had stopped at the comma after in accordance with CASS 7.7.2R, there would have been no doubt that the right to receive a distribution from the CMP was limited to those clients for whom the firm had actually segregated client money or those identified as entitled to participate in the distribution in the last reconciliation.
+They were under 7.7.2R(2) the clients for whom that money is held and it was to be distributed according to their respective interests in it.
+Lord Walker says that each client in 7.9.6R does not mean what it says; in context, it means each client for whom client money is held.
+I see the force of this argument.
+But 7.9.6R(2) must be read as a whole, including the words which follow the comma after in accordance with CASS 7.7.2R. So read, I think the better interpretation is that the right to share in a distribution is given to each client of the firm, so that all clients with a client money entitlement are entitled to share.
+That is what 7.9.6R(2) says.
+The reason for referring back to 7.7.2R is not to identify the client money that is to be distributed (that is done in 7.9.6R(1) and (2)).
+It is to introduce the order of priorities referred to in 7.7.2R.
+Thus, for example, the incorporation of 7.7.2R(2) throws the costs properly attributable to the distribution of client money on to the client money (rather than on to the general assets of the firm).
+The costs of distribution will have to come from the trust before division to clients.
+One final textual point.
+I think that Mr Miles is right to say that some support for his case on the meaning of client money entitlement can be found in 7.9.9R(2).
+This creates an exception from the usual rule that all client money received by the firm after a PPE must be returned to the client.
+The exception is where it is client money relating to a client, for whom the client money entitlement, calculated in accordance with CASS 7.9.7R, shows that money is due from the client to the firm at the time of the primary pooling event.
+This is a reference to a calculation being performed in the manner prescribed in Annex 1 (albeit with mandatory off setting).
+The exercise is intended to establish whether, objectively and in fact, the client is a debtor of the firm, in which case the firm can keep the money.
+In the context of 7.9.9R(2), client money entitlement has nothing to do with the amounts actually segregated for a client by the firm.
+It is telling that 7.9.9R(2), like 7.9.6R(2), requires the client money entitlement to be calculated in accordance with 7.9.7R as at the date of the PPE.
+To summarise, for the reasons that I have given, the language of the relevant provisions of CASS 7 tends to support the claims basis for participation in the CMP.
+I accept, however, that the linguistic points are not conclusively supportive of this interpretation.
+That is why it is necessary to stand back from the detail and ask which interpretation better promotes the purpose of CASS 7.
+In my view, a purposive interpretation clearly supports the claims basis for participation.
+This basis better reflects the fact that all client money is subject to the statutory trust and that CASS 7 is intended to give effect to the Directives whose overriding purpose is to safeguard the assets of all clients and to provide all clients with a high degree of protection.
+I should add that we heard detailed submissions about the complexities of the process that the claims basis would entail and the inevitable costs and delay that it would occasion.
+The judge was impressed by these points: see, for example, para 152 above.
+I have little doubt that distribution on the claims basis in this case would be complex and would take a long time to complete.
+That is because of the extraordinary circumstances of this case.
+In other cases, the position might well be very different.
+But it has not been shown that, in a typical case, the complexity of the claims basis will necessarily be greater than that of the contributions basis.
+Still less has it been shown that, in a typical case, the complexity of the claims basis will be so much greater than that of the contributions basis that the draftsman could not have intended the former.
+I do not think that it would be right to allow the scale of the exercise that would be required in this case to lead to a solution which, for the reasons that I have given, would defeat the underlying purpose of CASS 7.
+For the reasons that I have given, I have reached the strong provisional conclusion that participation in the CMP is not dependent on actual segregation at the time of the PPE.
+But I recognise that the second and third issues are closely linked.
+The third issue concerns the true construction of 7.9.6R(2).
+The second issue concerns the true construction of 7.9.6R(1).
+The closeness of the link between the two issues is seen clearly in 7.9.6R(2) which provides that the firm must distribute that client money in accordance with CASS 7.7.2R (underlining added).
+That client money is the client money referred to in 7.9.6R(1), ie client money held in each client money account of the firm.
+The second issue focuses on whether the client money to be distributed must be in a client account or may be identifiable client money held in a house account of the firm.
+The second issue
+If, as Lord Walker and Lord Hope would hold, participation in the CMP is dependent on actual segregation at the time of the point of last segregation (PLS), then the second issue is limited to the question whether there is anything in CASS 7 or the general law of insolvency to prevent a final internal reconciliation from being carried out on the data as they were at the PPE, but limited to taking account of events during the gap period between the PLS and the PPE (and not reopening previous reconciliations down to and including the PLS).
+In the light of the conclusion that I have reached on the third issue, the second issue cannot be viewed so restrictively.
+It is necessary to decide whether 7.9.6R(1) requires all identifiable client money to be treated as pooled, or only that client money which is held in the firms segregated client accounts.
+The phrase client money account of the firm is not defined.
+As a matter of ordinary language, the phrase client money account is capable of meaning (i) an account which contains or is intended to contain exclusively client money or (ii) an account of the firm which contains client money.
+Even where a firm is fully compliant, CASS 7 contemplates that client money will be held in the firms own account.
+Thus, where the alternative approach of payment of client money into a client bank account is adopted under 7.4.16G, 7.4.18G and 7.4.19G, the firm may receive client money into its own bank account before (on the next business day) paying it out to or on behalf of the client (see 7.4.18G).
+The question of whether a house account in which client money is held is a client money account of the firm arises, therefore, both in relation to money held by the firm where it adopts the alternative approach and where (as in the present case) it wrongly retains client money in its own account.
+A number of detailed textual points have been made on both sides of the argument.
+Some of these are discussed by Lord Neuberger at paras 205 to 215 of his judgment.
+I agree with his conclusion on these (para 223) that they are fairly limited in their value and pretty finely balanced in their relative strengths and that overall they do not favour either interpretation.
+I, therefore, see no point in rehearsing them in this judgment.
+Since an examination of the text shows that there are two possible interpretations of the phrase each client money account of the firm, it seems to me that the correct interpretation is the one which best promotes the purpose of CASS 7 as a whole.
+As I have already explained, the fundamental purpose of CASS 7 is to provide a high level of protection for client money received by financial services firms.
+That is why all client money received from or held for or on behalf of a client in the course of, or in connection with its MiFID business (7.2.2R) is held on trust upon receipt and why the other client money rules in 7.1 to 7.8 are expressed as they are; and that is the policy underlying the distribution rules.
+To exclude identifiable client money in house accounts from the distribution regime runs counter to this policy.
+It creates what was referred to in argument as a bifurcated scheme which provides clients with different levels of protection, namely a right to claim in the CMP under the CASS 7 rules for those whose money is held in segregated client accounts but no right (other than a right to trace in equity) to those whose money is held in the firms house accounts.
+The purpose of the scheme (as required by the Directives) is to provide a high level of protection to all clients and in respect of client money held in each money account of the firm.
+That purpose would be frustrated if the protection were restricted in this way.
+As Mr Miles and Mr Crow point out, a bifurcated scheme would provide clients with different levels of protection based on the happenstance of whether the firm has segregated money on behalf of that client.
+That is an arbitrary basis for a scheme which is intended to provide protection to all clients who entrust their money to a firm.
+It is unlikely that the draftsman of CASS 7 intended the scheme to have this effect.
+It is improbable that the draftsman contemplated that there would be two regimes substantially in operation for the distribution of client money (one under the CASS 7 rules set up for the purpose and one under equitable tracing principles and outside CASS 7).
+There is the further point that, in view of the overriding purpose of the scheme, it is unlikely that client money which had yet to be segregated under the alternative approach was intended to be treated differently from client money which had been segregated, whether under the normal approach or the alternative approach.
+It is unlikely that the draftsman would have intended that a client who makes a payment to a firm which adopts the alternative approach should, albeit for a short period, be at risk in a way in which a client who makes a similar payment to a firm which adopts the normal approach would not be.
+Lord Walker and Lord Hope recognise the force of this last point.
+They would meet it by holding that a final reconciliation must be carried out on the data as they were at the PPE limited to taking account of events during the gap period (and not reopening previous reconciliations down to and including the PLS).
+I accept that, in relation to client money received after the PLS, this interpretation avoids bifurcation, achieves symmetry and assimilates the effect of the alternative approach with that which would have occurred under the normal approach.
+But it does not avoid bifurcation or achieve symmetry as between client money received before the PLS which is held in segregated clients accounts and client money which is held in the firms house accounts.
+I would hold, in agreement with the Court of Appeal, that the primary pooling arrangements apply to client money in house accounts.
+This conclusion is consistent with and reinforces the conclusion which I have expressed on the third issue.
+In these circumstances, it is not necessary to deal with the alternative submission of Mr Miles that, as at the PPE, the firm remains a regulated firm subject to CASS 7 and is therefore obliged to perform a final reconciliation as at the PPE.
+This is the submission that Arden LJ accepted at para 142 of her judgment.
+Lord Walker and Lord Hope accept this submission, but only so as to take account of events during the gap period between the PLS and the PPE.
+I agree with them, but am inclined to think that there is no good reason why the final reconciliation should be limited in the way that they suggest.
+There is nothing in the language of 7.6 which supports such a limitation.
+Since (as I have held) all client money is held by the firm on trust for the purpose of distribution in accordance with the distribution rules, if it were necessary to decide the point, I would hold that the final reconciliation should not be limited to an examination of what has happened between the PLS and the PPE.
+Overall conclusion
+I would, therefore, dismiss this appeal.
+I would hold that (i) client money is held on the statutory trust imposed by CASS 7.7. from the time of receipt by a firm; (ii) the money treated as pooled at the PPE should be distributed to clients in accordance with their respective client money entitlements under CASS 7 construed in accordance with this judgment; and (iii) the pooling at the PPE includes all client money identifiable in any account of LBIE into which client money has been received and is not limited to client money in the firms segregated accounts.
+If the implications of these holdings call for further decision, application should be made to Briggs J for directions.
+LORD COLLINS
+The issues on this appeal are of great importance to financial institutions and regulatory authorities, and the amount of money involved is enormous.
+They raise some difficult questions of construction of CASS 7 in accordance with settled principles, but not points of law of general importance.
+Two of these questions have divided the courts below and the members of this court.
+I agree with the judgments of Lord Walker and Lord Hope on the first issue, and those of Lord Dyson and Lord Clarke (and with the conclusions of Lord Neuberger MR, Arden LJ, and Sir Mark Waller in the Court of Appeal) on the second and third issues.
+I begin with my views on the first issue, namely whether the statutory trust over client money contained in CASS 7.7 attaches only to client money in segregated accounts or whether it also extends to client money which LBIE was entitled to, and did, pay or receive into its own house accounts.
+The question is whether the statutory trust over clients funds arises on receipt of the funds, as CASS 7.7.2R seems to say (A firm receives and holds client money as trustee) and as Briggs J and the Court of Appeal decided, or whether it arises only when the money is received and segregated.
+Recital 26 of the Markets in Financial Instruments Directive 2004/39/EC (MiFID) recites that In order to protect an investors ownership and other similar rights in respect of securities and his rights in respect of funds entrusted to a firm those rights should in particular be kept distinct from those of the firm, .
+Article 13(8) of MiFID provides: An investment firm shall, when holding funds belonging to clients, make adequate arrangements to safeguard the clients' rights and, except in the case of credit institutions, prevent the use of client funds for its own account.
+Article 16(1) of Commission Directive 2006/73/EC (the Implementing Directive) provides that: Member states shall require that, for the purposes of safeguarding clients rights in relation to financial instruments and funds belonging to them, investment firms comply with the following requirements (e) they must take the necessary steps to ensure that client funds deposited, in accordance with article 18, in a central bank, a credit institution are held in an account or accounts identified separately from any accounts used to hold funds belonging to the investment firm; (f) they must introduce adequate organisational arrangements to minimise the risk of loss or diminution of client assets, or of rights in connection with those assets, as a result of misuse of assets, fraud, poor administration, inadequate record keeping or negligence. and article 16(2) provides: If, for reasons of the applicable law, including in particular the law relating to property or insolvency, the arrangements made by investment firms in compliance with paragraph 1 to safeguard clients rights are not sufficient to satisfy the requirements of article 13(7) and (8) of [MiFID], member states shall prescribe the measures that investment firms must take in order to comply with those obligations.
+Section 139(1)(a) of the Financial Services and Markets Act 2000 (FSMA) provides for rules to make provision which results in clients money being held on trust in accordance with the rules.
+CASS 7.3 (Organisational requirements: client money) provides: Requirement to protect client money 7.3.1R A firm must, when holding client money, make adequate arrangements to safeguard the client's rights and prevent the use of client money for its own account. [Note: article 13(8) of MiFID] Requirement to have adequate organisational arrangements 7.3.2R A firm must introduce adequate organisational arrangements to minimise the risk of the loss or diminution of client money, or of rights in connection with client money, as a result of misuse of client money, fraud, poor administration, inadequate record keeping or negligence. [Note: article 16(1)(f) of the MiFID implementing Directive]
+CASS 7.2.1R defined client money as any money that a firm receives from or holds for, or on behalf of, a client.
+CASS 7.7 (Statutory trust) provides (omitting the special provisions for insurance undertakings): 7.7.1G Section 139(1) of the Act (Miscellaneous ancillary matters) provides that rules may make provision which result in client money being held by a firm on trust (England and Wales and Northern Ireland) or as agent (Scotland only).
+This section creates a fiduciary relationship between the firm and its client under which client money is in the legal ownership of the firm but remains in the beneficial ownership of the client.
+In the event of failure of the firm, costs relating to the distribution of client money may have to be borne by the trust.
+Requirement 7.7.2R A firm receives and holds client money as trustee (or in Scotland as agent) on the following terms: (1) and the client money (MiFID business) distribution rules; (2) that money is held, according to their respective interests in it; (4) on failure of the firm, for the payment of the costs properly attributable to the distribution of the client money in accordance with (2); and (5) for the firm itself. subject to (3) [an error for (4)], for the clients for whom for the purposes of and on the terms of the client money rules after all valid claims and costs under (2) to (4) have been met,
+CASS 7.8 requires the trust affecting client money to be notified to and acknowledged by banks and other intermediaries.
+Where client money is held in a client bank account, the firm is obliged to notify the third party bank that the account is a trust account, and to require from the third party bank an acknowledgment that money standing to the credit of the account is trust money, and that the bank is not entitled to combine the account with any other account or to exercise any right of set off or counterclaim against the money in that account: CASS 7.8.1R.
+The client money rules do not impose any such obligation where client money is held in a house account.
+The essence of the appellants elaborate argument that the enormous sums which Lehman failed to segregate in this case are not subject to the statutory trust comes down to two main points: the first is that as a matter of construction the statutory trust does not arise before segregation.
+The second, which is put at the forefront of the argument, is that CASS 7 allows client money to be paid into the firms house accounts under the alternative approach.
+The essential feature of a trust is that the trustee must deal with the trust property solely for the purposes of the trust.
+Under the alternative approach the firm is free to use the client money paid into its house accounts for its own purposes, and that is inconsistent with an intention that such funds are held on trust for others.
+The first argument, on the construction of the wording, is that the opening words of CASS 7.7.2R (A firm receives and holds client money as trustee on the following terms) do not show that the trust was intended to apply to all client money from the moment of its receipt by the firm.
+The use of the phrase receives and holds is explained by the fact that it tracks the definition of client money in CASS 7.2.1R, being any money that a firm receives from or holds for, or on behalf of, a client, which reflects the fact that the firm may come under an obligation to treat money as client money in two separate circumstances: (1) where it receives money from or on behalf of a client; and (2) where, as a result of a transaction involving a client, the firm is obliged to segregate some of its own money into a client bank account as client money.
+There is nothing in MiFID in general, or in article 13(8) of MiFID or article 16(1) and (2) of the Implementing Directive or in CASS 7.3 in particular, which requires a trust to be imposed from the moment of receipt.
+The second argument is essentially that the use of the alternative approach by investment firms such as LBIE operating in a complex environment is inconsistent with the imposition of a trust on receipt.
+In practice it is impossible in such an environment for the firm to keep track, on a real time basis, of the extent to which each trade, or movement in the market, or payment relating to a particular client gives rise to a requirement to make a payment into or out of the segregated client bank accounts (as required by the normal approach).
+As a result, with auditor certification, the firm is permitted to receive client money from or on behalf of clients into its own accounts, and to pay any money to or on behalf of clients out of its own accounts.
+The firm is required to maintain in the client bank accounts an amount equal to the aggregate amount of client money it is required to hold for clients (less the amount held in the client transaction accounts).
+Since it is impossible to achieve this on a real time basis, an adjustment is required to be done daily, by performing a reconciliation of records and accounts required under CASS 7.6.2R, and adjusting the balance held in its client bank accounts to accord with that reconciliation, until the process is repeated on the next business day.
+The firm is under no obligation in relation to the actual money received as client money; but it is obliged to make payments to or on behalf of clients out of the funds in its own accounts (ie its own funds), and permitted to receive client money into its own accounts.
+It must, on a daily basis, ensure that there is sufficient money in the segregated accounts to satisfy the client money requirement as at the close of business on the previous business day.
+If necessary, this will involve a payment from the firms own accounts into the client bank accounts, but it may instead involve a withdrawal from the client bank accounts, or no change to the aggregate balance in the client bank accounts.
+The appellants say that under the alternative approach the firm is free to use the client money paid into its house accounts for its own purposes, and that is inconsistent with an intention that such funds are held on trust for others: Henry v Hammond [1913] 1 KB 515, 521; Paragon Finance Plc v DB Thakerar & Co (a firm) [1999] 1 All ER 400, 416.
+A trust over client money in the firms house accounts would create practical problems which the draftsman cannot have intended.
+It is in practice impossible for the firm to monitor, on a real time basis: (1) the payments made into its house accounts which attract the MiFID client money segregation requirements; (2) the payments which do not; and (3) the payments out of its house accounts which would impact on the application of those requirements.
+The draftsman must have envisaged that a firm which received client money into its house accounts under the alternative approach would necessarily be unable to distinguish what was client money in each account from its own funds, and would therefore in the ordinary course make payments from its house accounts without differentiating between them.
+In my judgment, the appeal on the first issue fails.
+That the trust arises on receipt is not only consistent with the objectives of the Directives and the Rules, but also emerges clearly from the wording of CASS 7.7.2R in its context.
+The statutory trust to safeguard clients funds pre dates MiFID.
+It has its origin in section 55(2)(a) of the Financial Services Act 1986.
+In his report Review of Investor Protection, Report: Part 1 (1984) (Cmnd 9125) (which preceded the Financial Services Act), para 6.31, Professor Gower noted that under English law mere segregation of funds was not enough to protect those funds from the firms creditors in the event of its insolvency, and investors money could be safeguarded by segregation only if it was segregated in such a way that ownership remained with them, ie under a trust: The ultimate safeguard for investors is an assurance that on the failure of the investment business such of their money or investments as have not been disposed of in the legitimate conduct of that business are recoverable by them.
+In most cases this can be achieved only by a combination of two methods.
+The first is by the segregation of clients money and investments from the firms money and investments.
+This is effective only if clients money and investments are segregated in such a way that ownership remains with them.
+This is not achieved merely by holding their money in a designated clients account.
+Unless that account is held on trust for the clients it will not afford protection, as many clients of recently liquidated investment managers and commodity dealers have learnt to their cost.
+In its 2000 consultation paper, Protecting Client Money on the failure of an authorised firm, para. 4.13, the FSA said: All consumers have an interest in the system of regulatory protection that safeguards client money held by a firm.
+When a firm fails, its clients will want to know that their money can be returned to them as quickly as possible.
+When it amended the client money rules to take account of the Directives, the FSA retained the existing trust mechanism.
+In its consultation paper 06/14, Implementing MiFID for Firms and Markets (July 2006) at para 10.17 it said: MiFIDs segregation provisions require a firm, on receiving any client funds, promptly to segregate those funds in an account or accounts identified separately from any accounts used to hold funds belonging to the investment firm.
+Our view is that under English law, a trust is the most appropriate mechanism for segregating client money and a statutory trust has advantages over a private law trust.
+For example, the incorporation of the client money distribution rules into the statutory trust assists in the efficient and prompt distribution of client money.
+The FSA proposed (para 10.18): to use the existing requirements concerning the establishment of the statutory trust and the segregation and operation of client money accounts.
+This will provide certainty as to beneficial ownership and the authority of the firm.
+And it would preserve the solid foundation for action by us, or liquidators or other persons appointed on their behalf, in the event of firm default.
+A statutory trust does not necessarily bear all the indicia of a trust as would be recognised by a Court of Chancery.
+Thus in Ayerst v C&K (Construction) Ltd [1976] AC 167, 180, Lord Diplock said (in the context of a trust arising on insolvency) that all that might be meant by the use of the word trust was giving property the essential characteristic which distinguishes trust property from other property; namely, it cannot be used or disposed of by the legal owner for his own benefit but must be used or disposed of for the benefit of others.
+Thus CASS 7.7.1G provides that the statutory trust creates a relationship under which client money is in the legal ownership of the firm but remains in the beneficial ownership of the client.
+Consequently, it does not follow that, when the word trust is used, that brings with it the full range of trust indicia associated with a traditional private law trust, particularly so when the trust is imposed by statute and is in the context of the exercise of a public function: cf In re Ahmed & Co [2006] EWHC 480 (Ch); 8 ITELR 779.
+The starting point on issue 1 is the wording of CASS 7.7.2R, which expressly provides that [a] firm receives and holds client money as trustee on the following terms.
+There is nothing to suggest that the trust does not arise on receipt.
+Other provisions of CASS 7 are consistent with the conclusion that a firm which receives client money is under an immediate fiduciary duty, including (1) the definition of client money in CASS 7.2.1R which refers to a firm receiving or holding money; (2) CASS 7.2.15R, which provides for the limited situations in which client money is released from fiduciary obligations on the part of the firm, and (3) CASS 7.4.23G (Mixed remittance), which provides that pursuant to the client money segregation requirements, a firm operating the normal approach which receives a mixed remittance (part client money and part other money) must pay the full sum into a client bank account promptly, and in any event, no later than the next business day after receipt; and pay the money that is not client money out of the client bank account promptly, and in any event, no later than one business day of the day on which the firm would normally expect the remittance to be cleared.
+That conclusion is also inevitable in the light of the requirement in article 13(8) of MiFID, which obliges member states to require an investment firm when holding funds belonging to clients to prevent the use of client funds for its own account.
+CASS 7 must be construed in order to comply with that requirement.
+It is also supported by articles 16(1) and 16(2) of the Implementing Directive, and by CASS 7.3.
+Article 16(1) of the Implementing Directive provides that client funds are to be held in accounts separate from the firms funds, and that firms must introduce adequate organisational arrangements to minimise the risk of loss or diminution of client assets, as a result of (inter alia) the misuse of assets.
+Most important, if because of insolvency law the arrangements are not sufficient to safeguard clients rights, member states have to prescribe the measures that investment firms must take in order to comply with those obligations: article 16(2).
+CASS 7.3.1R provides that the firm must prevent the use of client money for its own account.
+I accept the respondents argument that if the trust did not arise until segregation, then whether or not clients are protected by the CASS rules would become arbitrary and dependent on the firms own practices: the greater the level of incompetence (or misconduct) on the part of the failed firm, the lesser the protection for clients.
+As for the arguments based on the use of the alternative approach, the starting point is that the alternative approach is merely a method which firms are entitled to adopt, in certain circumstances, if to do so would achieve the client protection objective.
+The alternative approach is not expressly contemplated by MiFID and is an option permitted only if the firm has in place systems and controls which are adequate to enable it to operate the alternative approach effectively: CASS 7.4.15R.
+The alternative approach does not, and cannot, assist in the interpretation of the Directives, nor does it help in the interpretation of CASS 7.7.2R.
+I agree with Briggs J (at [144]) that since the purpose of the statutory trust is to protect client money from misuse, it would be odd if client money (originally the client's beneficial property) ceased to be the client's property upon receipt by the firm, and it (or substitute money) then became the clients property again upon segregation shortly thereafter.
+There is no doubt that money in a mixed fund may be held on trust, and that a trust of money can be created without an obligation to keep it in a separate account: In re Kayford Ltd [1975] 1 WLR 279, 282, per Megarry J.
+The supposed difficulties in operating the alternative method if there were a continuing trust of client money are in my judgment of no substance, and in any event irrelevant to the question whether the trust arises on receipt.
+For those reasons I would uphold the conclusions of Briggs J and the Court of Appeal [2011] Bus LR 277 on the first issue.
+I add only a few words about the third issue.
+Lord Walker and Lord Dyson have between them set out fully all of the textual and policy considerations which divide them.
+My principal reasons for coming to the conclusion that the claims basis is the right basis (as does Lord Dyson, and as did Lord Neuberger MR, Arden LJ and Sir Mark Waller in the Court of Appeal) are these: (a) although CASS 7 uses trust concepts, it is not intended to codify, or be limited by, the ordinary rules of trust law; (b) the exercise is purely one of construction of CASS 7; (c) CASS 7.7.2R provides that the trust is for the purposes and on the terms of the client money rules and the distribution rules; (d) CASS 7.9.6R provides that, on a primary pooling event, client money held in each client money account of the firm is treated as pooled; and the firm must distribute that client money in accordance with CASS 7.7.2R, so that each client receives a sum which is rateable to the client money entitlement calculated in accordance with CASS 7.9.7R; (e) client money entitlement is a reference to the contractual entitlement to have money segregated for the client; (f) that interpretation better serves the purposes of MiFID and the Rules.
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+Part II of the Housing Act 1980 was enacted in order to give the residential tenants of local authorities and certain other social landlords a degree of protection broadly comparable to that enjoyed by private tenants under the Rent Act 1977.
+It introduced a category of secure tenancy, whose essential features were that the tenant enjoyed a qualified security of tenure, and that the tenancy was transmissible once only to a member of the tenants family occupying the property.
+The relevant statutory provisions governing secure tenancies are now to be found in Part IV of the Housing Act 1985.
+This appeal raises a short but difficult point of law about the effect of the provisions governing the transmission of secure tenancies, where the property is let to joint tenants.
+Mr. and Mrs. Hickin became the joint tenants of a three bedroom terraced house at 81 Leahill Croft, Chelmsley Wood, Solihull in 1967.
+The freehold owner was initially Birmingham City Council, but the property was transferred in September 1980 to Solihull Metropolitan Borough Council, who were thereupon substituted as the landlords.
+On 3 October 1980, Part II of the Housing Act 1980 came into force and the tenancy became a secure tenancy.
+Mr. and Mrs. Hickin lived in the house together until some time after 1980 when Mr. Hickin left.
+Thereafter, Mrs. Hickin continued to live there until her death on 8 August 2007.
+Their daughter Elaine, the Appellant on this appeal, has lived in the house from the inception of the tenancy and is still there.
+The joint tenancy was never severed or replaced and was still subsisting at the time of Mrs. Hickins death.
+At common law, upon the death of a joint tenant, the tenancy is vested in the survivor, or jointly in the survivors if there is more than one: Cunningham Reid vs Public Trustee [1944] KB 602.
+Upon Mrs. Hickins death, therefore, her absent husband would have become the sole tenant.
+On that footing, the Council served notice to quit on him, and then began proceedings against Elaine for possession.
+Her case is that the common law right of her father was displaced by section 89 of the Act, which vested the tenancy in her.
+After a trial on agreed facts, Deputy District Judge Hammersley rejected that contention and ordered possession.
+HHJ Oliver Jones QC allowed the appeal and declared that the tenancy vested in Elaine on her mothers death.
+The Court of Appeal (Lord Neuberger MR, Laws LJ and Sullivan LJ) allowed the appeal and restored the order of the Deputy District Judge.
+The Housing Act 1985 has recently been amended, but the relevant provisions are those in force in August 2007, when Mrs. Hickin died.
+They are as follows: 79.
+Secure tenancies (1) A tenancy under which a dwelling house is let as a separate dwelling is a secure tenancy at any time when the conditions described in sections 80 and 81 as the landlord condition and the tenant condition are satisfied. (2) Subsection (1) has effect subject to the exceptions in Schedule 1 (tenancies which are not (a) secure tenancies), sections 89 (3) and (4) and 90 (3) and (4) (tenancies (b) ceasing to be secure after death of tenant), and (c) sections 91 (2) and 93 (2) (tenancies ceasing to be secure in consequence of assignment or subletting). (3) The provisions of this Part apply in relation to a licence to occupy a dwelling house (whether or not granted for a consideration) as they apply in relation to a tenancy. 81.
+The tenant condition The tenant condition is that the tenant is an individual and occupies the dwelling house as his only or principal home; or, where the tenancy is a joint tenancy, that each of the joint tenants is an individual and at least one of them occupies the dwelling house as his only or principal home. 87.
+Persons qualified to succeed tenant A person is qualified to succeed the tenant under a secure tenancy if he occupies the dwelling house as his only or principal home at the time of the tenants death and either (a) he is the tenants spouse or civil partner, or (b) he is another member of the tenants family and has resided with the tenant throughout the period of twelve months ending with the tenants death; unless, in either case, the tenant was himself a successor, as defined in section 88. 88.
+Cases where the tenant is a successor (1) The tenant is himself a successor if (a) the tenancy vested in him by virtue of section 89 (succession to a periodic tenancy), or (b) he was a joint tenant and has become the sole tenant, or the tenancy arose by virtue of section 86 (periodic (c) tenancy arising on ending the term certain) and the first tenancy there mentioned was granted to another person or jointly to him and another person, or (d) he became the tenant on the tenancy being assigned to him (but subject to subsections (2) to (3), or (e) he became the tenant on the tenancy being vested in him on the death of the previous tenant, or (f) the tenancy was previously an introductory tenancy and he was a successor to the introductory tenancy. 89.
+Succession to periodic tenancy (1) This section applies where a secure tenant dies and the tenancy is a periodic tenancy. (2) Where there is a person qualified to succeed the tenant, the tenancy vests by virtue of this section in that person, or if there is more than one such person in the one to be preferred in accordance with the following rules (a) the tenants spouse or civil partner is to be preferred to another member of the tenants family; (b) of two or more other members of the tenants family such of them is to be preferred as may be agreed between them or as may, where there is no such agreement, be selected by the landlord. (3) Where there is no person qualified to succeed the tenant, the tenancy ceases to be a secure tenancy. (a) when it is vested or otherwise disposed of in the course of the administration of the tenants estate, unless the vesting or other disposal is in pursuance of an order made under (i) (ii) section 23A or 24 of the Matrimonial Causes Act 1973 (property adjustment orders made in connection with matrimonial proceedings), section 17 (1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.), or (iii) paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents); or (iv) Part 2 of Schedule 5, or paragraph 9(2) or (3) of Schedule 7, to the Civil (property Partnership Act 2004 adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.) (b) when it is known that when the tenancy is so vested or disposed of it will not be in pursuance of such an order. (4) A tenancy which ceases to be a secure tenancy by virtue of this section cannot subsequently become a secure tenancy. 90.
+Devolution of term certain (1) This section applies where a secure tenant dies and the tenancy is a tenancy for a term certain. (2) The tenancy remain a secure tenancy until (a) it is vested or otherwise disposed of in the course of the administration of the tenant's estate, as mentioned in subsection (3), or it is known that when it is so vested or disposed of it will not be a secure tenancy. (3) The tenancy ceases to be a secure tenancy on being vested or otherwise disposed of in the course of administration of the tenant's estate, unless (a) the vesting or other disposal is in pursuance of an order made under section 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with matrimonial proceedings), or (b) (b) the vesting or other disposal is to a person qualified to succeed the tenant. (4) A tenancy which ceases to be a secure tenancy by virtue of this section cannot subsequently become a secure tenancy. 91.
+Assignment in general prohibited (1) A secure tenancy which is a periodic tenancy, or a tenancy for a term certain granted on or after November 5, 1982, is not capable of being assigned except in the cases mentioned in subsection (3). (a) (b) . (2) The exceptions are (a) (b) (i) (ii) with an assignment in accordance with section 92 (assignment by way of exchange); an assignment in pursuance of an order made under section 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection matrimonial proceedings), section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, etc.), (iii) paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents); or (iv) Part 2 of Schedule 5, or paragraph 9(2) or (3) of Schedule 7, to the Civil (property Partnership Act 2004 adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership etc.) an assignment to a person who would be qualified to succeed the tenant if the tenant died immediately before the assignment. (c) . 113.
+Members of a persons family (1) A person is a member of anothers family within the meaning of this Part if (a) he is the spouse or civil partner of that person, or he and that person live together as husband and wife or as if they were civil partners, or (b) he is the persons parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece.
+The Appellants argument is very simple.
+It is that sections 87 to 89 of the Act constitute an exhaustive code governing the fate of a secure periodic tenancy upon the death of a tenant.
+The operation of these provisions is mandatory and automatic, displacing the general law.
+The tenancy therefore vested automatically in her under section 89 if four and only four conditions were satisfied, namely (i) that a secure tenant, i.e. Mrs. Hickin, had died; (ii) that the tenancy was a periodic tenancy; (iii) that the Appellant occupied the house as her only or principal home for the period of twelve months ending with Mrs. Hickins death, and (iv) that the Mrs. Hickin was not herself a successor as defined in section 88.
+There is no issue about conditions (ii), (iii) and (iv).
+They were all satisfied.
+But the Court of Appeal held that condition (i) was not.
+In my view, they were right about this.
+The relationship between Part IV of the Housing Act and the common law is not in doubt.
+A secure tenancy is not just a personal right of occupation.
+It is an estate in land whose incidents are defined by the general law, save insofar as these are modified by the Act.
+Subject to that proviso, as Lord Hoffmann pointed out in Birmingham City Council v Walker [2007] 2 AC 262 at [5], it can be assigned, held in joint names, pass by survivorship and be disposed of by will on death, and can in principle pass in any way permissible at common law.
+Sections 87 to 89 of the Act are part of a wider scheme contained in sections 87 to 91.
+These provisions extensively modify the general law which would otherwise govern the transmission of a secure tenancy.
+Their general scheme is that, subject to limited exceptions (such as property adjustment orders in matrimonial proceedings), a secure tenancy cannot be transmitted with the benefit of the statutory security of tenure, whether inter vivos or in the course of the administration of the tenants estate, except to a person qualified to succeed under section 87.
+This means the deceaseds spouse or civil partner, or any other member of the deceaseds family within the very broad definition in section 113.
+This result is achieved in one or other of three ways.
+In the case of a purported disposition inter vivos of a periodic tenancy or a tenancy for a term certain granted on or after 5 November 1982, it is achieved by providing that the tenancy is not transferrable at all except to a qualified person: see section 91 and Burton v Camden London Borough Council [2000] 2 AC 399.
+In the case of the death of a periodic tenant, where there is a person qualified to succeed, it is achieved by providing for the secure tenancy to vest automatically in that person: section 89(2).
+In three cases, namely (i) the death of a periodic tenant where there is no person qualified to succeed, (ii) the death of a tenant for a term certain, and (ii) the disposition inter vivos of a tenancy for a term certain granted before 5 November 1982, the Act proceeds on the footing that the tenancy may be transmitted in any manner permitted by the general law, but achieves the statutory purpose by providing that the tenancy thereupon ceases to be secure: see sections 89(3), 90 and 91(2).
+It will be apparent that sections 87 to 91 of the Act do not wholly displace the general law, even in the area which they cover.
+In the first place, they are concerned only with the transmission of secure tenancies by dispositions inter vivos or upon death.
+They do not deal, at any rate expressly, with the subsisting contractual and proprietary relationship between the landlord and an existing tenant who has not died or disposed of his interest.
+Second, the statute necessarily operates by reference to certain basic principles of the law of property which serve to identify what are the legal characteristics of the estates in land whose transmission is being regulated.
+Third, in a number of cases the Act does not modify the general law governing the transmission of tenancies, but only the statutory security of tenure available where the tenancy has been transferred.
+Against that background, the first question to be addressed is what is the legal basis on which Mr Hickin would be entitled to the tenancy apart from section 89 of the Act.
+This depends on the legal incidents of a joint tenancy at common law.
+Upon the death of one of two persons holding under a joint tenancy, the interest of the deceased person is extinguished.
+The survivor thereby becomes the sole tenant.
+But there is no transmission of the tenancy.
+In Tennant v Hutton (Court of Appeal, 9 July 1996, unreported) , Millett LJ, delivering the judgment of the Court of Appeal, put the point in this way: The essence of a joint tenancy is that the property is vested in all or both of the joint tenants together.
+In contemplation of law there is only one tenant, though the tenant consists of two or more persons and the survivors and survivor of them.
+On the death of any one of them, the property becomes vested in survivors or survivor.
+There is no true transmission of title.
+The property remains vested after the death in the same tenant as it did before, though the number of persons who compose the tenant is reduced by one.
+The result, at common law, is this.
+By virtue of section 81 of the Housing Act, both Mr and Mrs Hickin were secure tenants for as long as at least one of them occupied the property as an only or principal home.
+Upon Mrs Hickins death, the tenancy subsisted and Mr. Hickin remained the tenant.
+He did not succeed Mrs Hickin.
+He simply continued to enjoy the same rights as he had always had, under an agreement with the local authority landlord to which he was and remained party.
+The only change in his position was that there was no longer another person concurrently enjoying the same rights.
+Accordingly, he became the sole tenant.
+Since he was absent, there was now no one occupying the property as his or her only or principal home.
+The tenant condition in section 81 of the Act was therefore no longer satisfied, and the tenancy while continuing to exist ceased to be secure.
+But because a tenancy may be a secure tenancy at any time when the landlord condition and the tenant condition are satisfied (see section 79), it would have been open to Mr. Hickin to revive its secure status by returning to live in the property at any time before the tenancy was terminated by service of a notice to quit.
+The next question is whether this result and the analysis that leads to it is excluded by the terms of the Housing Act.
+In Tennant v Hutton, which I have already cited for Millett LJs analysis of the right of survivorship at common law, a very similar question arose under the succession provisions of the Rent Act 1977.
+Schedule I, Part 1 of the Rent Act provided that where a protected or statutory tenant died, a qualifying member of his family who was living with him in the property at the time of his death (and in some cases for a minimum period before) became the statutory tenant in his or her place.
+The facts were that a husband and wife held the property as joint tenants under a three year lease protected by the Act and lived in it with their daughter.
+The issue was whether, upon the death of the wife, the husband or the daughter was the statutory tenant. by succession, after the death of the person. who, immediately before his death, was a protected tenant of the dwelling house.
+The Court of Appeal held that the daughter could not succeed by statute to the tenancy of the wife, because upon the wifes death the tenancy still subsisted at common law in the husband.
+Millett LJ, who delivered the sole reasoned judgment, based this conclusion on the legal characteristics of a joint tenancy by reference to which the Act must be assumed to operate.
+The daughter, he held, cannot claim a statutory tenancy by succession to her mother because immediately before her death her mother was not the protected tenant of the house.
+She was merely one of the two persons who constituted the tenant.
+He concluded: Parliament's intention is clear and accords with a literal application of the statute.
+The family of a statutory tenant is to be protected from eviction when the tenancy comes to an end on the death of the tenant.
+When the tenancy is vested in joint tenants, the tenancy does not come to an end on the death of the first of them to die and the survivor needs no protection.
+There is neither need nor room for the application of the schedule and the statutory rules of succession until the death of the survivor.
+Until after Mrs Tennant's death, there was no single tenant of the house on whose death the statutory provisions could or needed to apply.
+As it happens, the daughter was unrepresented in Tennant v Hutton.
+But Millett LJ recorded that he was satisfied that all the relevant material had been put before the court by counsel for the landlord.
+It has not been suggested before us that anything was overlooked or that the decision was wrong as applied to the Rent Act 1977.
+On the contrary, I think it was clearly right.
+It does not of course follow that Part IV of the Housing Act 1985 produces the same outcome, in spite of the similar purpose of that legislation.
+What does follow, as it seems to me, is that there must be something in the language of the Housing Act or inherent in its purpose which excludes the operation of the relevant features of the general law relating to joint tenancies.
+The only possible basis for such an exclusion in the case of the Housing Act is the use of the indefinite article in the phrase where a secure tenant dies in section 89(1).
+The argument has to be (and is) that in the case of a joint tenancy a secure tenant means any one of the individuals constituting the joint tenant.
+A similar argument was considered by Millett LJ in Tennant v Hutton.
+The precondition for the operation of the succession provisions of the Rent Act 1977 is the death of a person who, immediately before his death, was either a protected tenant of the dwelling house or the statutory tenant of it: section 2(1)(b).
+Millett LJ declined to read these words as referring, in the case of a joint tenancy, to the death of any one or more of the joint tenants.
+In my view, the argument is no better as applied to the corresponding language of section 89 of the Housing Act 1985.
+For the purposes of subsection (1), a secure tenant dies when a sole tenant dies.
+If the tenancy is a joint tenancy, the tenant has not died if there remains at least one living joint tenant in whom all the proprietary and contractual rights attaching to the tenancy subsist.
+Section 89 of the Housing Act 1985 is a mandatory provision which is wholly concerned with the transmission of the tenancy to a person other than the previous tenant, on account of the latters death.
+This makes sense only on the assumption that there no longer is a previous tenant.
+Where there is a surviving joint tenant, the whole statutory basis for disposing of the succession to the tenancy is absent.
+It is no answer to this to say that the purpose of the statute is to transfer the tenancy to members of the tenants family living in the house.
+That simply begs the question.
+It is not necessary to provide for the transmission of a tenancy on death unless there is, so to speak, a vacancy.
+If the tenancy subsists in the surviving joint tenant, there is none.
+It is obvious that section 89 implicitly excludes the possibility of the transmission of the tenancy upon death in a manner inconsistent with its terms.
+But the recognition of the right of the survivor under a joint tenancy is not inconsistent with the provisions of section 89 relating to the transmission of tenancies, because the survivors right is not a matter of transmission.
+The survivor has the same rights as he always did.
+It follows from the basic legal characteristics of a joint tenancy that the argument based on the use of the indefinite article in section 89(1) depends on a false distinction between a tenant and the tenant.
+The distinction is false because the section is concerned with the tenant and the tenancy, not with the partial interest of any one individual in the tenancy.
+Where property is held under a joint tenancy, there is only one tenant, albeit that there are two or more people who jointly constitute that tenant.
+The draftsman of the Housing Act undoubtedly envisaged that secure tenancies might be held jointly.
+The possibility is referred to in terms in sections 81 and 88(1)(b).
+In construing a statute, the ordinary presumption is that Parliament appreciated the legal incidents of those relationships which it is regulating.
+If, therefore, the draftsman had intended a secure tenant in section 89 to mean any one of two or more joint tenants it is hardly conceivable that he would have left that intention to be inferred from his use of an indefinite article, instead of dealing with the point expressly (e.g. a secure tenant, or in the case of a joint tenancy, any person having an interest under a joint tenancy).
+It remains to consider the effect of section 88(1)(b) of the Housing Act, which assumed some importance in the argument and is the main basis on which Lord Mance has reached the conclusion that Mr. Hickins rights as the surviving joint tenant were displaced in favour of his daughter.
+I do not, with respect, believe that this provision will bear the weight which Lord Mance has placed on it.
+Section 88 is a definition section which operates in conjunction with section 87.
+Section 87 is concerned with the succession to the tenant under a secure tenancy, i.e. to a person who was a secure tenant when he or she was alive.
+The proviso in the final words of section 87, mean that a spouse or other member of the tenants family occupying the property as his only or principal residence at the relevant time, is nevertheless not qualified to succeed the tenant if the tenant is himself a successor.
+Section 88 determines who is to be treated as a successor for this particular purpose.
+Section 88(1)(b) provides that a successor includes a person who was a joint tenant and has become the sole tenant.
+The result is that upon his wifes death Mr. Hickin was deemed to be her successor for the purpose of section 87, notwithstanding that there was no transmission of the tenancy at common law but only a continuation of the rights which as tenant had always been vested in him as the tenant.
+It does not, however, follow that Mr. Hickin ceased to be the tenant.
+On the contrary, section 88(1)(b) recognises that he became the sole tenant upon his wifes death, something which could not have happened if the tenancy passed automatically to his daughter at that point.
+Nor does it follow that Mr Hickins rights as the deemed successor of his wife had to compete with the claim of his daughter to succeed her.
+All that follows from section 88(1)(b) is that since there was deemed to have been a succession on Mrs. Hickins death, there could not thereafter be another one.
+So if Mr Hickin had exercised his right as the now sole tenant to move back into the property after his wifes death, thereby becoming a secure tenant, and had then died, no one would have been qualified under section 87 to succeed him and section 89 would not have applied.
+The provisions of sections 87 and 88 are there for the protection of the landlord against being kept too long out of the property.
+They do not serve to create rights of succession in resident family members which would otherwise not exist.
+In my judgment, the tenancy did not vest in the Appellant upon Mrs Hickins death because the rights of the previous tenant still subsisted.
+A secure tenant had not died.
+All that had happened was that one of the two persons constituting the secure tenant had died.
+I am fortified in this conclusion by another consideration.
+If, as the Appellant argues, the tenancy vests in a third party upon the death of one of two joint tenants, then the survivors contractual right and his interest in the property are expropriated.
+It is a consistent theme of the interpretation of statutes that an intention to take away the property of a subject without giving him a legal right to compensation for the loss of it is not to be imputed to the legislature unless that intention is expressed in unequivocal terms.
+The words are those of Lord Atkinson in Central Control Board (Liquor Traffic) v Cannon Brewery Co Ltd [1919] AC 744, 752, but the principle has been restated many times, and has been applied not only to property but to other vested common law rights, including contractual rights.
+Yet if the Appellant is right Parliament must be supposed not only to have abrogated the subsisting tenancy of the survivor, but to have done it without express words, let alone unequivocal ones, without any provision for compensation, and without regard to the survivors circumstances.
+This seems to me to be an extremely implausible construction of the Act.
+It is fair to say that on the facts of the present case Mr. Hickin will suffer no detriment because his interest as the surviving joint tenant was of little if any real value to him.
+He had been out of occupation for a number of years when Mrs. Hickin died, and had no intention of returning to the former family home.
+The tenancy was not assignable.
+Its subsistence mattered only to the landlord, and then only for the purpose of enabling the landlord to terminate it by serving notice to quit.
+I therefore have every sympathy for Elaine Hickins position.
+However, the issue before us cannot be decided simply on her particular facts.
+If she is right in principle, the operation of section 89 will have a much wider application.
+It will apply to defeat the interest of a surviving joint tenant who is out of occupation but wishes to return to the property on the death of the deceased and has every interest in doing so, for example because the survivor is the deceaseds wife who left the property on account of her husbands violence or abuse.
+It will apply to defeat the interest of a survivor who has been in occupation throughout but is not a member of the deceaseds family.
+If Mr. and Mrs. Hickin had been divorced, and it was Mr. Hickin who died, section 89 would on the Appellants construction require the automatic expropriation of Mrs. Hickins joint tenancy in favour of her daughter, notwithstanding that she was occupying the property, because in those circumstances the daughter but not the mother would be a member of the deceaseds family as defined in section 113.
+Mrs. Hickin would on that hypothesis have been converted by the operation of section 89 from a secure tenant to an unprotected licensee.
+The same result would follow if the joint tenants had never been members of the same family but had simply been sharing accommodation and the one who died had a child or other close relative living with him or her at the relevant time.
+I have no doubt that in the great majority of cases, the joint tenants of social landlords will be members of the same family within the very broad definition in section 113.
+They will therefore be qualified to succeed each other under section 87, even if their subsisting rights as joint tenants have been abrogated.
+But I do not think that Parliament can be taken to have legislated on the assumption that that would always be so, or that the exceptions were unimportant.
+Public sector landlords are likely to vary in their letting policies, both as between themselves and over time.
+The letting policies of housing associations, housing co operatives and charitable housing trusts (which are also covered by Part IV) may well be even more heterogeneous, depending on their purposes.
+The examples that I have cited are not fanciful.
+What they show is that although it may seem arbitrary, even capricious, for Elaine Hickins claim to be defeated on account of the rights of her absent father, equally arbitrary and capricious consequences follow from any alternative construction.
+It is difficult to say which consequences will arise more often.
+Nor does it matter.
+Any system of statutory protection which deals with interests as varied as residential tenancies and depends for its practical operation on the accidents of cohabitation, matrimonial break up and death will inevitably give rise to anomalies at the margins.
+But the scope of the rights created and the circumstances in which they arise are questions to be resolved on a principled basis.
+It is not productive, on an issue like this one, to decide it by reference to the competing anomalies and injustices that result from each side of the argument.
+For these reasons, I would dismiss the appeal.
+LORD HOPE
+For the reasons given by Lord Sumption I too would dismiss this appeal.
+As there is a difference of opinion and the case is far from easy, I should like to add a few words of my own to explain why I have reached this conclusion.
+The starting point must be that the rules of the common law apply except to the extent that they are abrogated or modified by the words of the statute.
+Where there is a joint tenancy there is one estate which is vested in all of them, with a right of survivorship.
+According to that principle, Mr Hickin became the sole tenant of the dwelling house by reason of his right of survivorship on his wifes death.
+The tenancy remained in being, except that there was now only one person entitled to the rights that were vested in the tenant under it.
+The question is whether the provisions in Part IV of the Housing Act 1985, which confer on tenants who occupy the dwelling house as their only or principal home the additional benefit of a secure tenancy, had the effect of depriving Mr Hickin of his right of survivorship to the tenancy at common law.
+Mr Hickin was not qualified to succeed to the secure tenancy when his wife died, as he was residing somewhere else.
+The tenant condition in section 81 was, for the time being at least, no longer satisfied.
+But this did not mean that the tenancy itself had ceased to exist.
+That is indicated by section 79(1), which provides that a tenancy under which a dwelling house is let as a separate dwelling is a secure tenancy at any time when the conditions described in section 80 and 81 as the landlord and the tenant condition are satisfied.
+The words at any time when show that there can be a period during the life of a tenancy that is recognised by the statute when these conditions, or one or other them, are not satisfied.
+So it would have been open to Mr Hickin to resume occupation of the dwelling house as his only or principal home, so long as he did so before the tenancy was terminated by the operation of the notice to quit served on him by the landlord.
+In that event, as the tenant condition would then have been satisfied, the continuing tenancy would have become a secure tenancy.
+Section 89(4) excludes the resumption of that protection where a tenancy has ceased to be a secure tenancy by virtue of the provisions of that section.
+But that exclusion does not apply more generally.
+This sets the scene for the way that Part IV of the 1985 Act addresses the question of how succession on the death of a tenant under a secure tenancy should be approached.
+If full weight is given to the right of survivorship to the tenancy at common law (which, until one reaches section 87, the Act has done nothing to abrogate or modify), the question whether there was a person qualified to succeed the tenant under a secure tenancy did not need to be answered when Mrs Hickin died.
+There was still a tenant, although the tenant condition was no longer satisfied.
+The argument to the contrary is that the common law is displaced by the fact that when she died the tenancy was a secure tenancy.
+In that situation the governing section is section 89, as this is what subsection (1) of that section itself provides.
+If there is a person qualified to succeed the tenant under the rules in sections 87 and 88, the tenancy vests in that person by virtue of section 89.
+As the appellant is such a person because she satisfies the conditions in section 87, the tenancy has vested in her to the exclusion of the common law right of survivorship.
+There is nothing inherently unreasonable in such a result, so long as it can be said to have been provided for expressly by the statute or by necessary implication from the provisions that it sets out.
+An example of how this can be done is provided by the Housing (Scotland) Act 2001, asp 10.
+Chapter 1 of Part 2 of that Act provides for a form of tenancy in the field of social housing that is known as a Scottish secure tenancy.
+It recognises that the tenancies to which its provisions apply can include joint tenancies.
+But it also recognises that there can be policy objections to the situation where not all of the joint tenants under a tenancy which is a secure tenancy occupy the dwelling house as their only or principal home.
+Section 81 of the 1985 Act that applies to England and Wales permits this, so long as at least one of the joint tenants satisfies this condition.
+But section 20 of the 2001 Act enables the landlord under a Scottish secure tenancy, if it has reasonable grounds for believing that a joint tenant is not occupying the house and does not intend to occupy it as the tenants home, to bring that tenants interest in the tenancy to an end.
+The rules about succession to a Scottish secure tenancy apply the same policy to joint tenants who no longer have their only or principal home in the house which is the subject of a secure tenancy when a tenant dies.
+Section 22(1) of the 2001 Act provides that, on the death of a tenant under a Scottish secure tenancy, the tenancy passes by operation of law to a qualified person.
+Section 22(5) gives effect to Schedule 3, which makes provision as to who are qualified persons for the purposes of that section.
+Paragraphs 1 4 of Schedule 3 provide as follows: 1 For the purposes of section 22, a person falling within any of paragraphs 2 to 4 is a qualified person. 2 (1) A person whose only or principal home at the time of the tenants death was the house and (a) who was at the time (i) the tenants spouse, or (ii) living with the tenant as husband and wife or in a relationship which has the characteristics of the relationship of husband and wife except that the persons are of the same sex, or (b) who is, where the tenancy was held jointly by two or more individuals, a surviving tenant. (2) In the case of a person referred to in sub paragraph (1)(a)(ii), the house must have been the persons only or principal home throughout the period of 6 months ending with the tenants death. 3 A member of the tenants family aged at least 16 years where the house was the persons only or principal home at the time of the tenants death. 4 A carer providing, or who has provided, care for the tenant or a member of the tenants family where (a) the carer is aged at least 16 years, (b) the house was the carers only or principal home at the time of the tenants death, and (c) the carer had a previous only or principal home which was given up.
+Paragraph 2(1)(b), when read with section 22(1) and the opening words of that sub paragraph, makes it clear that the common law right of survivorship has been replaced with a right of succession by operation of law under the statute.
+It is a condition of a surviving joint tenants continuing right to remain as a tenant that the house was his only or principal home at the time of the other joint tenants death.
+It would, of course, be wrong to use the 2001 Act as an aid to the construction of the provisions of Part IV of the 1985.
+The contrast between the wording of these two statutes is nevertheless instructive.
+It shows what can be done if the policy to which the statute seeks to give effect is to override the common law right of survivorship and to restrict those who are qualified as persons to whom the tenancy can pass to those for whom the house was their only or principal home.
+I do not detect a policy imperative of that kind in the wording of Part IV of the 1985 Act.
+The wording of the tenant condition in section 81 indicates that the common law rights of the individual tenants under a joint tenancy are not being subjected to a requirement that they must each occupy the house as their only or principal home.
+Confirmation that the common law right of survivorship is not being abrogated or modified is provided by section 88(1)(b), which recognises that a person who was a joint tenant may become the sole tenant in the exercise of that right irrespective of where his only or principal home is.
+The closing words of section 87 (unless, in either case, the tenant was himself a successor, as defined in section 88) do two things.
+First, they restrict the succession to a qualified tenancy to one succession only.
+But, secondly, when read with section 88(1)(b), they also show that it is only when the last to die of the joint tenants under a secure tenancy dies that the question of who is qualified to succeed under it will arise.
+The words the tenant in the closing words refer to the tenant in the opening words of the section, to whose succession the question of qualification is directed because that tenant has died.
+Against that background, I agree with Lord Sumption that the words where a secure tenant dies in section 89(1) must be understood as applying only where there is a vacancy because there no longer is a tenant: para 11, above.
+So long as at least one of the tenants under a joint tenancy survives and the tenant condition in section 81 continues to be satisfied, there will still be a secure tenant.
+There is no need to consider the question of succession, as the right of survivorship applies.
+Nor is there any question of the tenancy vesting or being otherwise disposed of in the course of the administration of the tenants estate, as section 89(3) contemplates, because questions of that kind are rendered irrelevant by the right of survivorship.
+The tenancy will, of course, cease to be a secure tenancy if the person or persons who are entitled to continue as tenants under the right of survivorship do not occupy the dwelling house as their only or principal home.
+In that event the landlord can serve a notice to quit, as was done in this case.
+The provisions about succession are designed to extend the benefit of a secure tenancy on strict conditions, and then once only, to persons who were not party to the original tenancy.
+But a tenancy which continues to exist has no need of them.
+LORD MANCE
+Introduction
+Mr and Mrs Hickin, were joint tenants at 81 Leahill Croft, a three bedroom terraced house in Chelmsley Wood, Solihull initially from 1967 of Birmingham City Council and later from 29th September 1980 of the respondent Solihull Metropolitan Borough Council.
+They became secure tenants from 3rd October 1980 when Part II of the Housing Act 1980 came into force.
+Mr Hickin left the property at some time after 1980.
+Mrs Hickin continued to live there until her death on 8th August 2007.
+Mr and Mrs Hickins daughter Miss Hickin has lived there since her birth in 1967.
+Notice to quit was served by the Council on Mr Hickin on 18th January
+2008 and on Miss Hickin on 6th February 2009.
+The Council offered Miss Hickin alternative accommodation, but Miss Hickin wishes to remain in her home.
+She maintains that on her mothers death she herself succeeded to a secure tenancy under what is now section 89(2) of the Housing Act 1985.
+The Council did not seek within the permitted period of six to twelve months after Mrs Hickins death to recover possession from Miss Hickin on the ground that, if she was a successor under section 89, the accommodation afforded by the dwelling house is more extensive than is reasonably required by her: Ground 16 in Part III of Schedule 2 to the Housing Act 1985.
+The Council denies that Miss Hickin succeeded to her mothers position as secure tenant.
+It submits that the effect of the continuing joint tenancy between Mr and Mrs Hickin was that Mr Hickin became sole surviving tenant at common law on Mrs Hickins death.
+Since he was not in occupation of the house, he could not be a tenant under a secure tenancy under section 79 or qualify under section 87 (if otherwise applicable) to become a secure tenant by succession.
+The notice to quit addressed to him was therefore valid.
+The Council adds for good measure that, since the combination of section 87 and 88(1) treats a joint tenant [who] has become the sole tenant as a successor to the previous joint tenancy, there could in any event be no question under sections 87 to 89 of Miss Hickin being qualified to succeed to any interest of Mr Hickin.
+The Council commenced possession proceedings against Miss Hickin on 1st April 2009.
+Deputy District Judge Hammersley upheld its claim on 10th August 2009.
+HHJ Oliver Jones QC allowed Miss Hickins appeal on 18th December 2009.
+The Court of Appeal (Lord Neuberger MR, Laws LJ and Sullivan LJ) allowed the Councils appeal on 27th July 2010 and restored the Deputy District Judges order for possession.
+In this eminently arguable case, Miss Hickin now appeals to the Supreme Court by permission granted on 24th March 2011.
+Housing Act 1985
+The relevant provisions of the Housing Act 1985 are contained in Part IV headed Secure Tenancies and Rights of Secure Tenants.
+They read in August 2007 as follows: 79.
+Secure tenancies (1) A tenancy under which a dwelling house is let as a separate dwelling is a secure tenancy at any time when the conditions described in sections 80 and 81 as the landlord condition and the tenant condition are satisfied. (2) Subsection (1) has effect subject to (a) the exceptions in Schedule 1 (tenancies which are not secure tenancies), (b) sections 89 (3) and (4) and 90 (3) and (4) (tenancies ceasing to be secure after death of tenant), and (c) sections 91 (2) and 93 (2) (tenancies ceasing to be secure in consequence of assignment or subletting). (3) The provisions of this Part apply in relation to a licence to occupy a dwelling house (whether or not granted for a consideration) as they apply in relation to a tenancy. 81.
+The tenant condition The tenant condition is that the tenant is an individual and occupies the dwelling house as his only or principal home; or, where the tenancy is a joint tenancy, that each of the joint tenants is an individual and at least one of them occupies the dwelling house as his only or principal home. 87.
+Persons qualified to succeed tenant A person is qualified to succeed the tenant under a secure tenancy if he occupies the dwelling house as his only or principal home at the time of the tenants death and either (a) he is the tenants spouse or civil partner, or (b) he is another member of the tenants family and has resided with the tenant throughout the period of twelve months ending with the tenants death; unless, in either case, the tenant was himself a successor, as defined in section 88. 88.
+Cases where the tenant is a successor (1) The tenant is himself a successor if (a) the tenancy vested in him by virtue of section 89 (succession to a periodic tenancy), or (b) he was a joint tenant and has become the sole tenant, or (c) the tenancy arose by virtue of section 86 (periodic tenancy arising on ending of term certain) and the first tenancy there mentioned was granted to another person or jointly to him and another person, or (d) he became the tenant on the tenancy being assigned to him (but subject to subsections (2) to (3)), or (e) he became the tenant on the tenancy being vested in him on the death of the previous tenant, or (f) the tenancy was previously an introductory tenancy and he was a successor to the introductory tenancy. 89.
+Succession to periodic tenancy (1) This section applies where a secure tenant dies and the tenancy is a periodic tenancy. (2) Where there is a person qualified to succeed the tenant, the tenancy vests by virtue of this section in that person, or if there is more than one such person in the one to be preferred in accordance with the following rules (a) the tenants spouse or civil partner is to be preferred to another member of the tenants family; (b) of two or more other members of the tenants family such of them is to be preferred as may be agreed between them or as may, where there is no such agreement, be selected by the landlord. (3) Where there is no person qualified to succeed the tenant, the tenancy ceases to be a secure tenancy (a) when it is vested or otherwise disposed of in the course of the administration of the tenants estate, unless the vesting or other disposal is in pursuance of an order made under (i) section 23A or 24 of the Matrimonial Causes Act 1973 (property adjustment orders made in connection with matrimonial proceedings), (ii) section 17 (1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.), or (iii) paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents); or (iv) Part 2 of Schedule 5, or paragraph 9(2) or (3) of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.) (b) when it is known that when the tenancy is so vested or disposed of it will not be in pursuance of such an order. (4) A tenancy which ceases to be a secure tenancy by virtue of this section cannot subsequently become a secure tenancy. 91.
+Assignment in general prohibited (1) A secure tenancy which is (a) a periodic tenancy, or (b) a tenancy for a term certain granted on or after November 5, 1982, is not capable of being assigned except in the cases mentioned in subsection (3). (3) The exceptions are (a) an assignment in accordance with section 92 (assignment by way of exchange); (b) an assignment in pursuance of an order made under (i) section 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with matrimonial proceedings), (ii) section 17(1) of the Matrimonial and Family Proceedings Act (property adjustment orders after overseas divorce, etc.), (iii) paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents); or (iv) Part 2 of Schedule 5, or paragraph 9(2) or (3) of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership etc.) (c) an assignment to a person who would be qualified to succeed the tenant if the tenant died immediately before the assignment. 113.
+Members of a persons family (1) A person is a member of anothers family within the meaning of this Part if (a) he is the spouse or civil partner of that person, or he and that person live together as husband and wife or as if they were civil partners, or (b) he is the persons parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece.
+Common law joint tenancy
+At common law, Mr and Mrs Hickin were and remained joint tenants until Mrs Hickins death, whereafter Mr Hickin continued as sole tenant.
+Millett LJ said in Tennant v Hutton (1996) 73 P&CR D10 that: The essence of a joint tenancy is that the property is vested in all or both of the joint tenants together.
+In contemplation of law there is only one tenant, though the tenant consists of two or more persons and the survivors and survivor of them.
+On the death of any one of them, the property becomes vested in survivors or survivor.
+There is no true transmission of title.
+The property remains vested after the death in the same tenant as it did before, though the number of persons who compose the tenant is reduced by one.
+Section 3(4) of the Administration of Estates Act 1925 supplements the common law for the purposes of inheritance, by providing: The interest of a deceased person under a joint tenancy where another tenant survives the deceased is an interest ceasing on his death.
+However, as Millett LJ recognised, the concept of the tenant under a joint tenancy was in Lloyd v Sadler [1978] 1 QB 774 benevolently extended in the context of the policy of the Rent Acts to protect the possession of a tenant against eviction by the landlord.
+In that case one joint tenant had left permanently to get married and the surviving tenant alone was held to remain the protected tenant.
+The words the tenant were read in context as meaning the joint tenants or any one or more of them.
+By contrast in Tennant v Hutton Mr and Mrs Tennant had been joint tenants under a three year lease, and as such were protected tenants under the Rent Act 1977.
+Though divorced, both lived separately in the house together with their daughter Caroline until Mrs Tennants death during the currency of the lease.
+On the expiry of the lease Mr Tennant became a statutory tenant under the Rent Act 1977 while he continued to occupy the house as his home.
+Their daughter Caroline continued to live there with Mr Tennant until he remarried and moved out permanently.
+She then claimed to be a statutory tenant on the basis that she had succeeded to her mother as a protected tenant under Rent Act provisions which provided who could become a statutory tenant in succession to someone who immediately before his or her death was a protected tenant pursuant to Schedule 1, paras 1 to 3 to the Rent Act 1977.
+The Court of Appeal dismissed her claim on the basis that on Mrs Tennants death the contractual tenancy vested in Mr Tennant as sole surviving joint tenant and Caroline was no more than his licensee.
+Millett LJ said that any other result would operate to the detriment of the other joint tenant rather than the landlord and would, I think, be completely unworkable.
+Moreover, it would be inconsistent with Lloyd v Sadler.
+If one of two joint tenants can become the statutory tenant when the other leaves the property, notwithstanding the fact that the joint tenancy is not thereby determined, he must be capable of becoming the only statutory tenant when the departing joint tenant dies.
+In Tennant v Hutton, Mr Tennant, the surviving tenant, was, as stated, in occupation before and for some period after Mrs Tennants death.
+That Mr Tennant was and remained in occupation after Mrs Tennants death was in my opinion critical to the decision.
+This can be seen from the provisions of the Rent Act 1977.
+Under section 1 (as enacted) a tenancy under which a dwelling house . is let as a separate dwelling is a protected tenancy for the purposes of this Act.
+Section 2 provided that: . (a) after the termination of a protected tenancy of a dwelling house the person who, immediately before that termination, was the protected tenant of the dwelling house shall, if and so long as he occupies the dwelling house as his residence, be the statutory tenant of it; and (b) Part I of Schedule 1 to this Act shall have effect for determining what person (if any) is the statutory tenant of a dwelling house at any time after the death of a person who, immediately before his death, was either a protected tenant of the dwelling house or the statutory tenant of it by virtue of paragraph (a) above.
+Schedule 1 provided: STATUTORY TENANCIES STATUTORY TENANTS BY SUCCESSION PART I 1.
+Paragraph 2 or, as the case may be, paragraph 3 below shall have effect, subject to section 2(3) of this Act, for the purpose of determining who is the statutory tenant of a dwelling house by succession after the death of the person (in this Part of this Schedule referred to as " the original tenant") who, immediately before his death, was a protected tenant of the dwelling house or the statutory tenant of it by virtue of his previous protected tenancy. 2.
+If the original tenant was a man who died leaving a widow who was residing with him at his death then, after his death, the widow shall be the statutory tenant if and so long as she occupies the dwelling house as her residence. 3.
+Where paragraph 2 above does not apply, but a person who was a member of the original tenant's family was residing with him at the time of and for the period of 6 months immediately before his death then, after his death, that person or if there is more than one such person such one of them as may be decided by agreement, or in default of agreement by the county court, shall be the statutory tenant if and so long as he occupies the dwelling house as his residence.
+Had Mr Tennant left the house before his wifes death, she would, in accordance with the decision in Lloyd v Sadler [1978] 1 QB 774, have remained as the protected tenant (and, if she had lived till the end of the lease, then have become the statutory tenant).
+Lloyd v Sadler establishes that, where one joint tenant leaves, the other who remains becomes the sole statutory tenant: see per Megaw LJ at pp. 782B C and 783D, per Lawton LJ at pp.l798A B and 790C E and per Shaw LJ at p.790E H, even though this may mean that the landlord can no longer sue the departed tenant for rent.
+It is clear that the court would not in these circumstances have regarded Mr Tennant, after his departure, as continuing to be either a protected or the statutory tenant under section 1 or section 2(1)(a) by virtue of his wifes occupation.
+Lawton LJ stated as much at p.789A. Caroline would thus have become statutory tenant of the house upon Mrs Tennants death under section 2(1)(b) read with Schedule 1 paragraphs 1 and 3 of the Rent Act 1977.
+In arriving at its conclusion in Lloyd v Sadler, the Court of Appeal recognised that its role was to find an efficient, sensible and humane way of filling any remaining gaps in the law as to the effect of joint tenancies in the Rent Acts: p.785D per Megaw LJ, and to construe the word tenant in a way which avoided unreasonable results, or results which the legislature is unlikely to have intended: p.786G H per Megaw LJ.
+We should adopt a similar general approach in relation to the present scheme.
+The Housing Act 1985
+In the present case, while Mrs Hickin was alive she continued to reside in the house, although Mr Hickin did not.
+Under section 81 of the Housing Act 1985, her occupation was sufficient for the joint tenancy to meet the tenant condition.
+The joint tenancy was therefore a secure tenancy when she died.
+Mr Jan Luba QC for Miss Hickin submits that in these circumstances the 1985 Act mandates a staged approach, starting with section 89.
+Where a secure tenant dies (section 89(1)), it is necessary to consider under section 89(2), read with sections 87 and 88, whether there is a person qualified to succeed the tenant.
+Under section 87(1), a person is and can only be qualified to succeed the tenant under a secure tenancy, if he [or she] occupies the dwelling house as his only or principal home at the time of the tenants death.
+Here, there was only one such candidate, Miss Hickin, so no problem of priority could arise under the rules of preference in section 89(2).
+On this basis, Mr Luba submits that Miss Hickin, succeeded under the statute to the secure tenancy previously held by her mother; any rights which Mr Hickin might otherwise have had at common law on or after the death of his joint tenant were to that extent over ridden; under section 89(2), the tenancy vests by virtue of this section in whoever is entitled to be preferred under the rules in section 89(2), here Miss Hickin; the statutory provisions for succession render irrelevant any other disposition that a secure tenant may have purported to make, and the statute is capable of vesting the secure tenancy in a relative who was not one of the previous joint secure tenants.
+I agree with Mr Luba that section 89 is a logical starting point.
+Sections 87 and 88 are definitional sections needed for the operation of section 89.
+It is worth noting that the 1985 Act was passed to consolidate various previous statutes including the Housing Act 1980, in which section 30(1), the equivalent of section 89(2) in the 1985 Act, was placed first, and followed by section 30(2), the equivalent of section 87, and section 31, the equivalent of section 88.
+I also agree that section 89(1) is capable in certain circumstances of vesting a secure tenancy in a spouse, civil partner or family member who has been in occupation for 12 months prior to a previous secure tenants death, irrespective of any other disposition that the previous secure tenant may have purported to make.
+Section 89(3) makes clear that a secure tenancy will be vested and continue by succession in a spouse, civil partner or other family member qualified by occupation to succeed under section 87, over riding any other disposition.
+In Birmingham City Council v Walker [2007] UKHL 22, [2007] 2 AC 262, in an opinion concurred in by all members of the House, Lord Hoffmann explained (para 3) that in providing for the new interest called a secure tenancy, the 1980 and 1985 Acts adopted a technique different from that used by the Rent Acts.
+Under section 32 of the 1980 Act, and now section 82 of the 1985 Act, the contractual tenancy was preserved, by a scheme which added statutory incidents to that tenancy which overrode some of the contractual terms.
+Those overriding provisions include the provisions which prevent it being terminated except by an order of the court on the statutory grounds.
+They also include the provisions of section 89 under which a secure tenancy vests in statutorily specified successors, irrespective of what might otherwise be the position as a matter of contract and/or property law.
+However, Mr Lubas further submissions assume that, when section 89(1) speaks of a secure tenant dying, it is sufficient to activate the statutory provisions for succession that only one of two joint tenants under a secure tenancy has died, and that the survivor can only retain any right as a secure tenant in respect of the property if in occupation, and even then only if entitled to preference in accordance with the rules stated in section 89(2).
+The joint tenancy is of no relevance unless either the joint tenant is the person entitled to succeed under section 89 or no one is entitled to succeed.
+In the latter case, the common law survivorship can take effect unconstrained by the statute.
+Mr Bryan McGuire QC for the Council takes issue with all these submissions.
+He submits that it would require clear words to oust the common law rule of survivorship, and that nothing in the statute overrides the contractual and property rights inherent in a joint tenancy which at common law enure to the benefit of the survivor.
+The policy of the Act, he further submits, is to protect a secure tenant from the loss of that tenancy and Mr Hickin was a tenant under a secure tenancy while his wife lived, even though he was not himself in occupation.
+Although Mr Hickin had not in fact shown any interest in doing this, he might after his wifes death have wished to resume occupation of the house.
+Although the Council has in fact served notice to quit on Mr Hickin because he is not in occupation, the court should not adopt an interpretation which would, or at least might in other circumstances, impinge on rights on which Mr Hickin might have wished to rely under article 1 of the First Protocol to the European Convention on Human Rights.
+At a linguistic level, Mr McGuire submits that the statutory references to the or a tenant must in the context of a joint tenancy be read as referring to both or all joint tenants wherever they appear in sections 87 to 89.
+In particular, the phrase where a secure tenant dies in section 89(1) must refer to and can only apply on the death of all joint tenants.
+The succession provisions were thus inapplicable since Mr Hickin remained alive and could continue as tenant at common law after Mrs Hickins death.
+The phrase where a secure tenant dies in section 89(1) is clearly not used to cater for the rare situations where joint tenants die simultaneously.
+Further, the legislator, when speaking of the tenants spouse or civil partner in section 89(2) cannot have had in mind joint tenants having together a third person as their spouse or civil partner.
+Elsewhere, in sections 81 and 88(1)(b), the Act distinguishes between the individuals holding a joint tenancy.
+So too in section 89(1) the phrase where a secure tenant dies must contemplate an individual secure tenant.
+On Mr McGuires approach, therefore, the phrase must, in the case of a joint tenancy, be read as referring to the death of the last surviving joint tenant who is a secure tenant.
+But on that basis section 89 can never apply to enable succession to a sole surviving joint tenant.
+Under section 88(1)(b) anyone who has become the sole tenant, having previously been a joint tenant, is a successor for the purposes of section 87, and under section 87 there can be no statutory succession to someone who was him or herself a successor.
+There thus appears to be no reason, in the case of a joint tenancy, to read the tenant in sections 87 to 89 as referring to the last surviving tenant, or indeed to worry at all about how the word applies.
+It contemplates situations where a secure tenant an individual dies and there is a person qualified under section 89(2), read with sections 87 and 88, to succeed to the secure tenancy.
+In support of the Councils case, Mr McGuire invites consideration of the situation of two joint tenants who both occupy a property until one dies.
+He points out that on Mr Lubas case the survivor could find him or herself deprived of possession in favour of a third person, also in occupation of the property but with a prior claim to succession under the rules of preference stated in section 89(2)(a) and (b).
+He submits that it is unlikely that the legislator intended to override the survivorship rights of a joint tenant in this way.
+The Master of the Rolls was likewise strongly influenced by possible situations in which on Mr Lubas case the common law interests of a joint tenant could be overridden in favour of a third party.
+As one example, he took the hypothesis of a joint tenancy involving joint occupation by two friends who were not married or in civil partnership and not members of the same family within the broad definition in section 113; if one of them then died leaving a child, the secure tenancy would, on Mr Lubas case, vest in the child, leaving the surviving joint tenant without his or her former secure tenancy.
+The Master of the Rolls also referred to two further examples: one related to siblings who were joint tenants living together with their children, but Mr Lubas riposte to this is that the definition of family would bring them on Mr Lubas case within the rules of preference in section 89(2); the other example related to gay couples, but the riposte to this is that the definition of family in section 50(3) of the 1980 Act (the forerunner of section 113 of the 1985 Act) was clearly drawn to exclude them (as Ministerial statements on the debate in Standing Committee F on the Housing Bill on 28th February 1980, Hansard column 681 682 confirm).
+As to the basic example of joint tenancies between friends, one of them with a child who could succeed under section 89(2), it seems likely that any apparent problems dissipate or are marginal in the light of practical realities.
+Joint tenants are most commonly spouses or partners.
+The definition of family has always included persons living together as husband and wife (and now also includes persons living together as if they were civil partners).
+If Mr Lubas submissions are otherwise correct, the need to address the position of a surviving joint tenant through the means of section 89 is unlikely often to disturb such expectations as otherwise attach to a joint tenancy.
+Further analysis
+Nonetheless, I accept that there is some oddity about a conclusion, unlikely though it may be often to arise, that a joint tenancy between two persons both actually occupying a property is automatically subordinated to any prior claim which a third person might be able to make under the rules of preference in section 89(2).
+There is weight in Mr McGuires submissions that one might have expected this to be made clear and in his invocation by analogy of Millett LJs words in Tennant v Hutton, quoted in paragraph 32 above.
+However, this appeal is not concerned with the right of survivorship as between joint tenants both in occupation.
+In relation to the subject matter which it does concern, it can in my view be said to be at least equally odd indeed odder, especially when it is probably a much commoner situation that a joint tenant, who was not in occupation and whose tenancy was only secure by virtue of the occupation of the other joint tenant, should be treated as the surviving sole tenant after the death of the other, when such a conclusion excludes succession by a relative who would otherwise qualify under section 89(2) and brings the secure tenancy to an end, rather than continues it.
+Mr McGuires arguments that Mr Hickin had valuable contractual and property rights of which he should not lightly be deprived strike a particularly hollow note in this connection; the Councils only aim in asserting such rights is to rely on their vulnerability in the face of the notice of quit which it served on Mr Hickin on 18th January 2008.
+If, as Mr McGuire submits, the policy of the Act is to protect a secure tenant from the loss of that tenancy, Mr McGuires analysis runs in a different direction to that policy and applies to the 1985 Act a less protective approach than the courts were in Lloyd v Sadler [1978] 1 QB 774 ready to adopt under the Rent Acts towards persons in occupation.
+In these circumstances, Mr Lubas case comes in my view much closer than Mr McGuires to reflecting the protective purpose of the 1980 and 1985 Acts, and I prefer it.
+But, although it is unnecessary to decide this definitively on this appeal, I also consider that Mr Luba probably puts his case higher than is appropriate, and that the better analysis of situations of joint tenancies lies between the opposing cases.
+The 1985 Act is focused on the creation and preservation of secure tenancies, and I see no reason why its provisions need or should be read as overriding common law rules where these would themselves secure the continued existence of the secure tenancy.
+In this connection, it is highly significant that the Act recognises the existence of joint tenants, and expressly provides that the occupation of one of them is sufficient to constitute the tenancy a secure tenancy (sections 79 and 81), and that it further provides that, where a person was a joint tenant and has become a sole tenant, he is treated as a successor: section 88(1)(b).
+This latter definition, Mr McGuire accepts, only arises and applies where the person who was a joint tenant and has become a sole tenant was before and remains after the survivorship a tenant under a secure tenancy: see the opening words of section 87.
+Leggatt LJ rightly observed in Bassetlaw D. C. v Renshaw [1992] 1 All ER 925, 928d: Successor [in section 88] must mean successor to the tenancy referred to in section 87.
+When, therefore, the draftsman in para (b) says he was a joint tenant and has become the sole tenant he must be referring to the secure tenancy referred in section 87.
+In Birmingham City Council v Walker at para 11, Lord Hoffmann endorsed this conclusion: the word successor most naturally means successor to a secure tenancy. he was a joint tenant and has become the sole tenant in section 88(1)(b) means that he was a joint tenant under a secure tenancy and has become the sole tenant under a secure tenancy.
+The prime situation in which one joint tenant becomes a sole tenant is of course on death of the other joint tenant: see e.g. Burton v Camden London Borough Council [2000] 2 AC 399, 410E per Lord Millett.
+If two joint tenants are both in occupation, the secure tenancy can, on the death of one, continue in favour of the survivor, even in those rare cases where the other has a spouse, civil partner or relative who would otherwise have been qualified to succeed under sections 87 and 88.
+This situation is outside the scope of the provisions regarding succession contained in section 89.
+However, it is recognised by section 88(1)(b) which provides that the conversion of the joint tenancy on the death of one joint tenant into a tenancy held by the sole surviving tenant counts as a succession preventing any relative or family member of the latter being qualified to succeed to the latter.
+Section 88(1)(b) expressly recognises a type of succession by a surviving joint tenant which falls outside the scope of the succession regulated by section 89.
+It is section 88(1)(a) that refers to succession falling within section 89.
+However, section 88(1)(b) only contemplates succession by a surviving joint tenant who, because he or she is in occupation, can continue the secure tenancy held previously as joint tenant: see the authorities cited in paragraph 45 above.
+Where a joint tenant who is in occupation and is a secure tenant dies, and the surviving joint tenant is not in occupation, the secure tenancy cannot continue in the surviving tenant and the surviving tenant cannot be a secure tenant.
+In this situation, nothing in the Act recognises or permits any right of survivorship which can oust the mandatory statutory provisions for succession contained in section 89, read with sections 87 and 88.
+Where a secure tenant dies, the language of section 89(1) and (2) vests the secure tenancy immediately on the death in any person qualified under the definitional sections 87 and 88.
+Here, it vested and continued in Miss Hickin the secure tenancy which until her mothers death existed by virtue of her mothers occupation.
+It is immaterial on this appeal to consider whether a person who otherwise has priority under the rules in section 89(2) enjoys any and what right to disclaim the benefit of the secure tenancy thus vested in him or her by the statute.
+The statutory language makes clear that his or her entitlement to the benefit of the secure tenancy arises immediately on the death.
+There is no opportunity for anyone else to intervene, or, in particular, for the joint surviving tenant to resume occupation which a view to foreclosing or preventing the statutory vesting.
+Any objections to which this might lead seem unlikely to exist except in remote and unusual situations, and to give rise to no real objection to a solution which does justice in the great majority of foreseeable contexts.
+The majority view
+Since writing the first draft of this judgment, I have seen Lord Sumptions judgment reaching an opposite result and Lord Hopes judgment concurring with it and making additional remarks on Scottish law.
+A number of points arise, which have led me to insert paragraphs 33 and 34 above and lead to the following further observations.
+First, Lord Sumption notes (para 1), and I agree, that the Housing Act 1980 was enacted to give residential tenants of local authorities and certain other social landlords a degree of protection broadly comparable to that enjoyed by private tenants under the Rent Act 1977, and he relies upon the Rent Act case of Tennant v Hutton on which I have also relied in paragraph 32 above.
+In my opinion, the result he reaches, far from being comparable with or supported by the position under the Rent Act 1977, is inconsistent with it.
+As indicated in paragraphs 33 and 34 above, in comparable circumstances, Miss Hickin would under the Rent Act scheme succeed as statutory tenant to her mothers protected or statutory tenancy.
+Second, the suggestion (Lord Sumptions paragraph 13) that section 88(1)(b) recognises that [Mr Hickin] became the sole tenant is not consistent with the case law.
+Section 88(1)(b) postulates and is only concerned with situations in which the sole tenant was a joint tenant under a secure tenancy and has become the sole tenant under a secure tenancy: see the citations in paragraph 45 above, I cannot therefore agree with Lord Hopes statement (paragraph 24) that section 88(1)(b) recognises that a person who was a joint tenant may become the sole tenant in the exercise of that right irrespective of where his only or principal home is.
+That is the common law rule, but section 88(1)(b) deals and deals only with situations where a secure joint tenancy becomes a secure tenancy in the hands of a surviving sole tenant.
+That situation can only arise where the surviving sole tenant is in occupation at the time when the death and survivorship occur.
+If (as in the case of Mr Hickin) the surviving sole tenant is not in occupation at that time, he cannot be a secure tenant, because he does not fulfil the tenant condition in section 81.
+In this situation, section 89 prescribes the consequence: on the death of a secure tenant, the secure tenancy vests in the person qualified to succeed under sections 87 and 88.
+This occurs automatically on the death.
+There is no such window of opportunity, as Lord Hope suggests in paragraph 19 for someone like Mr Hickin (out of occupation in 2007 for up to 25 years) to resume his position as a secure tenant: see paragraph 48 above.
+The words at any time when in section 79(1) relate to the period of a tenants life.
+If on death a tenant is not in occupation, no secure tenancy then exists, and no one can succeed under the language of section 89.
+When Mrs Hickin died, she was in occupation, but Mr Hickin was not qualified to succeed her under sections 87 and 88, because he was not in occupation.
+But Miss Hickin was qualified and can therefore succeed under section 89.
+Third, Lord Sumption focuses on and rejects Mr Lubas submission that a successor under section 89 could oust a surviving joint tenant who remained in occupation: see e.g. paragraph 15.
+For the reasons given in paragraphs 41 to 44 above, I believe that the problem is over stated, and does not raise any insuperable obstacle to acceptance of Mr Lubas submissions about what Parliament must be taken to have intended.
+However, as explained in paragraphs 42 to 46 above, I also think that Mr Luba put his case higher than necessary or appropriate; the better analysis is, in my view, one whereby the problem never arises: a successor under section 89 cannot oust an surviving joint tenant who was in occupation, but the secure tenancy can on a joint tenants death vest under section 89 in a qualified successor where the surviving joint tenant is not in occupation.
+Fourth, references to the extreme implausibility of Parliament having decided to expropriate Mr Hickins interest appear to me unpersuasive for all the various reasons indicated in paragraphs 36, 43 and 49 above.
+On any view, the effect of the legislation is in certain circumstances to vest a secure tenancy on death in any spouse, civil partner or family member occupying the house with the deceased, irrespective of any other purported disposition by the deceased.
+In my opinion, those circumstances include the present.
+Finally, it is of interest to note the Housing (Scotland) Act 2001 to which Lord Hope draws attention.
+Section 22(1) provides that On the death of a tenant under a Scottish secure tenancy, the tenancy passes by operation of law to a qualified person.
+By section 22(5), Schedule 3 makes provision as to who are qualified persons for this purpose.
+Under paragraph 2 of Schedule 3, one such person is, as Lord Hope notes, a person whose only or principal home at the time of the tenants death was the house and . (b) who is, where the tenancy was held jointly by two or more individuals, a surviving tenant.
+So, the Scottish drafters, presumably with the English legislation before them, had no difficulty in using the terms the death of a tenant in section 22(1) and the tenants death in Schedule 3 paragraph 2 to refer to the death of only one joint tenant.
+There should be equally little difficulty in doing so under section 89(1)
+The fact that the Scottish Act, which is differently framed, made clear the position that a surviving joint tenant could succeed to a secure tenancy provided that the house was his or her only or principal home does not, of course, mean that a similarly enlightened position is not implicit in the English Act.
+In my opinion, it is.
+Conclusion
+In summary, Mr Hickin was not in occupation and could not succeed to or continue to hold any secure tenancy.
+Section 88(1)(b) did not apply to make Mr Hickin a successor, because it only applies where a joint tenant is in occupation and can succeed as a secure tenant.
+In contrast, Miss Hickin was qualified to succeed to her mothers secure tenancy under section 87.
+The effect of section 89 was to provide that, on Mrs Hickins death, the secure tenancy enjoyed by virtue of Mrs Hickins occupation vest[ed] by virtue of this section in Miss Hickin, notwithstanding the common law right of survivorship which Mr Hickin would otherwise have had despite his lack of occupation.
+I would accordingly allow the appeal, set aside the order made by the Court of Appeal and restore the order made by HHJ Oliver Jones QC.
+The majoritys opinion is, however, to the contrary.
+It leads to what I regard as an unhappy discordance with both the Rent Act and the Scottish legal positions.
+The philosophy of the Housing Act 1985 is that one statutory succession to a secure tenancy should be available between a tenant and a qualified successor, each in turn enjoying occupation as secure tenant.
+The majoritys opinion means that, on Mrs Hickins death in 2007, no such statutory succession could occur as between Mrs Hickin and her otherwise qualified daughter who had lived together in the house from 1967.
+This is because of the notional and insecure legal interest which Mr Hickin, who departed the house and family up to 25 years before Mrs Hickins death, is said to enjoy and on which the Council only relies in order to serve notice to quit on him to terminate it.
+If this is the law, I would suggest that Parliament might appropriately take another look at it, and see whether similar protection should not be made available to persons in Miss Hickins position to that made specific in Scotland.
+I would allow this appeal, essentially for the reasons given by Lord Mance.
+LORD CLARKE
+I add a few words of my own because the court is divided.
+The question is one of construction of the Housing Act 1985 (the Act), and especially section 89(1), which provides that the section applies where a secure tenant dies and the tenancy is a periodic tenancy.
+In particular, the question is whether the reference to a secure tenant includes a reference to a tenant under a periodic joint tenancy.
+The majority say that it does not.
+As Lord Sumption puts it at para 11, if the tenancy is a joint tenancy, the tenant has not died if there remains at least one living joint tenant in whom all the proprietary and contractual rights attaching to the tenancy subsist.
+However, I respectfully disagree.
+By section 79, a tenancy under which a dwelling house is let as a separate dwelling is a secure tenancy at any time when the landlord condition and the tenant condition are satisfied.
+Section 81 provides that the tenant condition is satisfied where the tenancy is a joint tenancy and each of the joint tenants is an individual and at least one of them occupies the dwelling house as his only or principal home.
+It appears to me that, as a matter of language, the Act recognises that in such a case joint tenants are tenants under a secure tenancy.
+In these circumstances the natural meaning of secure tenant in section 89(1) includes an individual joint tenant under a secure tenancy.
+It follows that a secure tenant dies within the meaning of section 89(1) when a joint tenant dies and that section 89 accordingly applies in such a case.
+By section 89(2), where there is a person qualified to succeed the tenant, the tenancy vests by virtue of the section in that person.
+In this case there was such a person, namely Mrs Hickins daughter, because she satisfied the condition in section 87(b).
+The vesting takes place automatically on the death, with the result that, by necessary implication, the rights of a joint tenant such as Mr Hickin, must lapse.
+As I see it, the position would be different if, at the date of the tenants death, there was a joint tenant who occupied the dwelling house as his only or principal home.
+In that event the ordinary common law rule would apply and he or she would become a sole tenant under a secure tenancy.
+Thus if, on Mrs Hickins death, Mr Hickin had occupied the house as his only or principal home, he would have satisfied the first part of the tenant condition in section 81.
+The effect of section 88(1)(b) is that Mr Hickin would have been treated as a successor to Mrs Hickin.
+As Lord Mance notes at para 45, under section 88(1)(b) anyone who has become a sole tenant, having previously been a joint tenant, is a successor for the purposes of section 87, but only where the person who was a joint tenant and has become a sole tenant was before and remains after the survivorship a tenant under a secure tenancy.
+This is made clear by the opening words of section 87.
+I agree with Lord Mances analysis at paras 46 to 48.
+In particular, I agree that section 88(1)(b) recognises a type of succession by a surviving joint tenant which falls outside the scope of the succession regulated by section 89.
+It applies only where the survivor, because he or she is in occupation, can continue the secure tenancy held previously as joint tenant.
+In the case where the survivor is not in occupation, the secure tenancy cannot continue in the surviving tenant and the surviving tenant cannot be a secure tenant.
+Thus in the present case the effect of the Act is that Miss Hickin was the successor to the secure tenancy.
+I prefer this approach to that adopted by the majority because it seems to me to be more consistent with the language of the Act, especially section 89(1), construed in its context.
+It also seems to me to be consistent with the authorities referred to by Lord Mance.
+Both approaches contain some oddities but this solution is consistent with the approach to the Rent Acts and, indeed with the position in Scotland.
+I recognise that this is a minority view but I agree with Lord Mance that consideration might be given to the question whether it would be appropriate for the approach in England and Scotland to be the same.
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+These appeals are concerned with a little used provision in article 1F(c) of the Geneva Convention on the Status of Refugees (the Refugee Convention).
+This excludes from refugee status and protection any person with respect to whom there are serious reasons for considering that . he has been guilty of acts contrary to the purposes and principles of the United Nations.
+For the time being at least, however, the Home Secretary accepts that these appellants cannot be returned to their home countries because they face a real risk of torture or inhuman or degrading treatment or punishment there.
+It is the grant of refugee status, rather than the right to stay in this country, which is in issue in these proceedings.
+The issues in the two cases are different.
+In Al Sirri, the question is whether all activities defined as terrorism by our domestic law are for that reason alone acts contrary to the purposes and principles of the United Nations, or whether such activities must constitute a threat to international peace and security or to the peaceful relations between nations.
+In DD, the question is whether armed insurrection is contrary to the purposes and principles of the United Nations if directed, not only against the incumbent government, but also against a United Nations mandated force supporting that government, specifically the International Security Assistance Force (ISAF) in Afghanistan.
+Although the issues are different, many of the relevant materials are the same, as must be the general approach to article 1F(c), and so we deal with them in one judgment to avoid unnecessary repetition.
+In all article 1F cases, there is also the issue of the standard of proof: what is meant by serious reasons for considering a person to be guilty of the acts in question? (1) The general approach
+Relevant treaty and legislative provisions
+Article 1F of the Refugee Convention excludes three types of person from the definition of refugee: The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.
+It will be apparent that a particular act may fall within more than one of these categories.
+In particular, terrorism may be both a serious non political crime and an act contrary to the purposes and principles of the United Nations.
+Member States of the European Union are, moreover, bound to observe the standards laid down in Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (the Qualification Directive).
+Its main objective is to ensure common standards in the identification of people genuinely in need of international protection and a minimum level of benefits for them in all Member States (recital 6).
+Recital 22 deals with article 1F(c): Acts contrary to the purposes and principles of the United Nations are set out in the preamble and articles 1 and 2 of the Charter of the United Nations and are, amongst others, embodied in the United Nations Resolutions relating to measures combating terrorism, which declare that acts, methods and practices of terrorism are contrary to the purposes and principles of the United Nations and that knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations.
+Article 12 of the Qualification Directive both reflects and expands slightly upon article 1F of the Refugee Convention (the changes and additions are italicised): 2.
+A third country national or a stateless person is excluded from being a refugee where there are serious reasons for considering that: (a) he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he or she has committed a serious non political crime outside the country of refuge prior to his or her admission [to that country] as a refugee; which means the time of issuing a residence permit based on the granting of refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non political crimes; (c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and articles 1 and 2 of the Charter of the United Nations. 3.
+Paragraph 2 applies to persons who instigate or otherwise participate in the commission of the crimes or acts mentioned therein.
+The Qualification Directive is transposed into United Kingdom law by the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI 2006/2525).
+Regulation 2 provides that refugee means a person who falls within article 1(A) of the Geneva Convention and to whom regulation 7 does not apply.
+Regulation 7(1) states that A person is not a refugee, if he falls within the scope of article 1D, 1E or 1F of the Geneva Convention.
+The Immigration Rules provide, in paragraph 334, that a person will be granted asylum, inter alia, if (ii) he is a refugee, as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006.
+However, section 54 of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act), provides: (1) In the construction and application of article 1F(c) of the Refugee Convention the reference to acts contrary to the purposes and principles of the United Nations shall be taken as including, in particular (a) acts of committing, preparing or instigating terrorism (whether or not the acts amount to an actual or inchoate offence), and (b) acts of encouraging or inducing others to commit, prepare or instigate terrorism (whether or not the acts amount to an actual or inchoate offence). (2) In this section the Refugee Convention means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, and terrorism has the meaning given by section 1 of the Terrorism Act 2000.
+There is no need to set out the definition of terrorism contained in section 1 of the 2000 Act.
+The essence is the use or threat of certain dangerous actions designed to influence this or any other government or intimidate the public for the purpose of advancing a political, religious, racial or philosophical cause.
+But if firearms or explosives are involved, the act or threat need not be designed to influence the government or intimidate the public.
+Terrorism designed solely to achieve political change within the United Kingdom, with no international repercussions, is clearly covered, as is terrorism committed here with a view to achieving internal political change in another country.
+The Preamble to the Charter of the United Nations recites the determination of the peoples of the United Nations to save succeeding generations from the scourge of war; to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small; to maintain justice and respect for international law; and to promote social progress and better standards of life in larger freedom; and for these ends to live together in peace, unite to maintain international peace and security, ensure that armed force is used only in the common good, and employ international machinery for the economic and social advancement of all peoples.
+The purposes of the United Nations are set out in article 1 of the Charter.
+The first purpose is 1.
+To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.
+The second is to develop friendly relations among nations based on respect for the principle of equal rights and self determination of peoples, and to take other appropriate measures to strengthen universal peace; the third is to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian nature, and in promoting and encouraging respect for human rights and for fundamental freedoms for all; and the fourth is to be a centre for harmonising the actions of nations in the attainment of these common ends.
+Article 2 of the Charter requires the United Nations and its Member States to act in accordance with the seven Principles set out therein.
+These are: the sovereign equality of all Members; the duties of all Members to fulfil their obligations under the Charter in good faith; to settle their disputes by peaceful means; to refrain from the threat or use of force against the territorial integrity or political independence of any state; to give the United Nations every assistance in taking action in accordance with the Charter and to refrain from assisting any state against which it is taking action; the duty of the United Nations to ensure that non member states act in accordance with these principles so far as may be necessary to maintain international peace and security; and, finally, that Nothing contained in the present Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state .
+The general approach to article 1F(c)
+The appellants, with the support of the UNHCR, argue that article 1F must be interpreted narrowly and applied restrictively because of the serious consequences of excluding a person who has a well founded fear of persecution from the protection of the Refugee Convention.
+This was common ground in R (JS (Sri Lanka)) v Secretary of State for the Home Department [2010] UKSC 15, [2011] 1 AC 184, in the context of article 1F(a), and must apply a fortiori in the context of article 1F(c).
+Concern was expressed during the drafting of the Convention that the wording was so vague as to be open to misconstruction or abuse.
+Professor Grahl Madsen comments that It seems that agreement was reached on the understanding that the phrase should be interpreted very restrictively: The Status of Refugees in International Law, 1966, p 283.
+Secondly, article 1F(c) is applicable to acts which, even if they are not covered by the definitions of crimes against peace, war crimes or crimes against humanity as defined in international instruments within the meaning of article 1F(a), are nevertheless of a comparable egregiousness and character, such as sustained human rights violations and acts which have been clearly identified and accepted by the international community as being contrary to the purposes and principles of the United Nations.
+The appellants rely on Pushpanathan v Canada, Minister of Citizenship and Immigration (Canadian Council for Refugees intervening) [1998] 1 SCR 982 (Pushpanathan) per Bastarache J at para 65: .In my view, attempting to enumerate a precise or exhaustive list [of acts contrary to the purposes and principles of the United Nations] stands in opposition to the purpose of the section and the intentions of the parties to the Convention.
+There are, however, several types of acts which clearly fall within the section.
+The guiding principle is that where there is consensus in international law that particular acts constitute sufficiently serious and sustained violations of fundamental human rights as to amount to persecution, or are explicitly recognised as contrary to the purposes and principles of the United Nations, then article 1F(c) will be applicable.
+On the other hand, not every act which is condemned by the United Nations is for that reason alone to be deemed contrary to its purposes and principles.
+In Pushpanathan itself, the majority held that international drug trafficking did not fall within article 1F(c), despite the co ordinated efforts of the international community to suppress it, through United Nations treaties, declarations and institutions.
+As the UNHCR explains, in its Background Note on the Application of the Exclusion Clauses: Article 1F (September 2003), at para 47: The principles and purposes of the United Nations are reflected in myriad ways, for example by multilateral conventions adopted under the aegis of the UN General Assembly and in Security Council resolutions.
+Equating any action contrary to such instruments as falling within article 1F(c) would, however, be inconsistent with the object and purpose of this provision.
+Rather, it appears that article 1F(c) only applies to acts that offend the principles and purposes of the United Nations in a fundamental manner.
+Article 1F(c) is thus triggered only in extreme circumstances by activity which attacks the very basis of the international communitys co existence under the auspices of the United Nations.
+The key words in article 1F(c) acts contrary to the purposes and principles of the United Nations should therefore be construed restrictively and its application reserved for situations where an act and the consequences thereof meet a high threshold.
+This threshold should be defined in terms of the gravity of the act in question, the manner in which the act is organised, its international impact and long term objectives, and the implications for international peace and security.
+Thus, crimes capable of affecting international peace, security and peaceful relations between states would fall within this clause, as would serious and sustained violations of human rights.
+Thirdly, for exclusion from international refugee protection to be justified, it must be established that there are serious reasons for considering that the person concerned had individual responsibility for acts within the scope of article 1F(c): see the detailed discussion at paras 50 to 75 of the UNHCR Background Note.
+This requires an individualised consideration of the facts of the case, which will include an assessment of the persons involvement in the act concerned, his mental state and possible grounds for rejecting individual responsibility.
+As a general proposition, individual responsibility arises where the individual committed an act within the scope of article 1F(c), or participated in its commission in a manner that gives rise to individual responsibility, for example through planning, instigating or ordering the act in question, or by making a significant contribution to the commission of the relevant act, in the knowledge that his act or omission would facilitate the act.
+In Bundesrepublik Deutschland v B and D (Joined Cases C 57/09 and C 101/09) [2011] Imm AR 190 (B and D) the Grand Chamber of the Court of Justice of the European Union confirmed the requirement of an individualised assessment and held that it was not justifiable to base a decision to exclude solely on a persons membership of a group included in a list of terrorist organisations.
+This too is consistent with the approach adopted by this Court in R (JS (Sri Lanka)) v Secretary of State for the Home Department [2011] 1 AC 184.
+In our view, this is the correct approach.
+The article should be interpreted restrictively and applied with caution.
+There should be a high threshold defined in terms of the gravity of the act in question, the manner in which the act is organised, its international impact and long term objectives, and the implications for international peace and security.
+And there should be serious reasons for considering that the person concerned bore individual responsibility for acts of that character.
+However, those general observations are not enough in themselves to resolve the questions raised by the two cases before us, to which we now turn. (2) The case of Al Sirri
+The facts
+The appellant is a citizen of Egypt.
+He arrived in the United Kingdom in April 1994 and claimed asylum then.
+His claim was eventually turned down on 11 October 2000, on the ground that article 1F(c) of the Refugee Convention applied to him, but he was told that he would be granted exceptional leave to enter the United Kingdom.
+That never happened, but on 1 April 2004 he was granted discretionary leave to enter which has been extended for periods of six months at a time ever since.
+Under section 83 of the Nationality, Immigration and Asylum Act 2002, the grant of discretionary leave for an aggregate of more than a year also gave him the right to appeal against the refusal of asylum.
+This he did in September 2006.
+On 2 August 2007, the Asylum and Immigration Tribunal (the AIT) (Hodge J, President, Senior Immigration Judge Lane and Immigration Judge Woodhouse) dismissed his appeal.
+On 18 March 2009, the Court of Appeal (Sedley, Arden and Longmore LJJ) set aside the Tribunals determination and remitted the case to be determined afresh by a differently constituted tribunal: [2009] EWCA Civ 222, [2009] INLR 586.
+Nevertheless, the appellant has appealed to this Court because he takes issue with some aspects of the leading judgment given by Sedley LJ.
+The Home Secretary relied upon seven matters to show that there are serious reasons for considering that the appellant has been guilty of acts contrary to the purposes and principles of the United Nations.
+Four of these are accepted facts: (i) that the appellant had published and written the Foreword to an Arabic language book, Bringing to light some of the most important judgments in Islam; the author, Rifai Ahmed Musa, has been credibly named as having been a member of the Egyptian organisation, al Gamma al Islamiyya; the AIT pointed out that that organisation is proscribed under the Terrorism Act 2000, and also in Canada and the United States and within the European Union by Council Common Position 2005/936/CFSP; (ii) that the appellant was in possession of an unpublished Arabic manuscript, Expectations of the Jihad Movement in Egypt; the author, Ayman Al Zawahiri, is a former leader of the organisation, Egyptian Islamic Jihad; (iii) that the appellant possesses books and videos relating to Osama bin Laden and Al Qaeda; (iv) that the appellant had transferred money to and from foreign countries, allegedly in sums greater than his known income could explain.
+The AIT relied upon a long and detailed statement from Acting Detective Inspector Dingemans of the Counter Terrorism Command at Scotland Yard, containing what Sedley LJ described as a damaging account and analysis of the material found at Mr Al Sirris premises (para 67).
+Sedley LJ commented that the preferable course would have been for the AIT to be shown the documentary material supporting the allegations, to hear what both sides had to say about it, to consider any explanations given by the appellant, and to make up their own mind about it.
+The Court of Appeal was not satisfied that this material, together with the more serious allegation referred to in para 22 below, would inevitably have led the AIT to conclude that the appellant fell within article 1F(c); it follows that they would not have been so satisfied on the basis of the above material alone.
+Two of the matters relied upon were more serious, but the Court of Appeal ruled that the AIT was required by law to give them no weight, and the Home Secretary has not appealed against that ruling: (i) that the appellant has twice been convicted in his absence by the Supreme Military Court of Egypt: in March 1994, when he was sentenced to death for conspiracy to kill Dr Atef Sidqi, Prime Minister of Egypt; and in January 1999, when he was sentenced to 15 years imprisonment for membership of a terrorist organisation.
+These convictions cannot be relied upon because they were probably secured by the use of torture.
+Although the AIT placed little weight upon them, the Court of Appeal correctly ruled that this was a serious error of law, and the only principled way of dealing with them was to afford them no weight at all (para 44); (ii) that a grand jury in the United States District Court for the Southern District of New York had indicted him for allegedly providing material support to a terrorist organisation, al Gamma al Islamiyya, and soliciting the commission of a crime of violence.
+The AIT had accorded this substantial weight, although none of the evidence on which the indictment was based had been disclosed, and as a result (under extradition law as it then stood) the Home Secretary had declined to authorise an extradition request based upon the indictment to proceed.
+The Court of Appeal ruled that it should be accorded no evidential weight whatsoever.
+This leaves the most important matter relied upon: that the appellant had conspired in the murder of General Ahmad Shah Masoud in Afghanistan on 9 September 2001, just two days before the atrocities of 11 September 2001.
+The background to this is common knowledge, some of which is confirmed by the witness statement of General Masouds brother, Charg dAffaires in London for the Islamic State of Afghanistan.
+This was then the recognised government of Afghanistan and General Masoud was its Vice President and Defence Minister.
+But at the time the Taliban were in control of most of the country, apart from the territory in the north east of the country which was under the control of the Northern Alliance.
+General Masoud was leader of the Northern Alliance.
+Earlier that year he had travelled to Europe to address the European Parliament on the situation in Afghanistan and it is said that he had warned of an impending Al Qaeda attack upon the United States on a larger scale than the bombing of the US embassies in Kenya and Tanzania in 1998.
+It is also believed that his assassination may have been ordered by Osama bin Laden to cut off the most obvious source of support for US retaliation against such an attack.
+Be that as it may, the appellant was indicted at the Old Bailey for conspiracy to murder General Masoud.
+The case against him was described by the Common Serjeant as follows.
+The General had been murdered by two Arab suicide bombers posing as a journalist and photographer who had been granted an interview with him.
+A letter of introduction, purportedly signed by the appellant, from the Islamic Observation Centre (IOC) which was run by the appellant in London, and informing the reader that the two were journalists of Arab News International, a TV subsidiary of the IOC, had played a part in securing this interview.
+However, the letters actually carried by the assassins at the time of the murder were in fact, as the Common Serjeant put it, careful and elaborate forgeries of the letters that the appellant had created.
+So did the appellant know that the letters which he created were to be used to secure an interview with the General at which he would be killed? Or were they used by the assassins as a template for the letters which they would forge, the appellant being an innocent fall guy who knew nothing of their intended use? The Common Serjeant concluded that the evidence was as consistent with the innocence of the accused (who had made no secret of his authorship of the templates which could easily be traced to him and had not destroyed any of the relevant documentation in his possession) as it was with his guilt.
+Accordingly, on 16 May 2002, he dismissed the charge on the ground that the evidence would not be sufficient for a jury properly to convict.
+The AIT reminded themselves that the standard of proof in criminal proceedings is not the same as that under article 1F(c).
+They concluded that the evidence seriously points to some knowing involvement of the appellant in the events which led to the death of General Masoud (para 46).
+Sedley LJ considered whether this conclusion, together with the Dingemans evidence referred to in para 19 above, would have been bound to lead to a finding adverse to the appellant (para 62).
+He concluded that there was a realistic possibility that a tribunal of fact, confining itself to the admissible evidence and excluding the two items ruled inadmissible by the Court of Appeal, might have rejected the submission that the appellant fell within article 1F(c) (para 64).
+Hence the case was remitted to be determined afresh on the basis of the admissible evidence.
+Why then this appeal?
+The appellant originally took issue with the Court of Appeal on three matters: (1) The Court of Appeal rejected his argument that article 1F was aimed only at state actors people who had in some way abused the powers of a sovereign state.
+Although this had the support both of academic commentators on the Refugee Convention and of the UNHCR, it had been rejected as an absolute rule by the Supreme Court of Canada in Pushpanathan.
+The appellant was originally given permission to argue the point in this Court, but has now abandoned it in the light of the later decision of the Court of Justice of the European Union in B and D. In these proceedings, Mr Fordham QC, who appears for the UNHCR, has accepted that it is possible for non state actors to be guilty of acts contrary to the purposes and principles of the United Nations. (2) Sedley LJ saw the force of the appellants submission that terrorism must have an international character or aspect in order to come within article 1F(c) (paras 29 and 32).
+However, he did not think that this helped the appellant.
+On the face of it, the assassination was in support of a domestic Afghan quarrel.
+The international repercussions were referred to but not described by the AIT.
+But what in his view gave it a dimension which brought it within the purposes and principles of the United Nations was that, if true, it involved the use of a safe haven in one state to destabilise the government of another by the use of violence (para 51).
+The appellant wishes, therefore: (i) clearly to establish that the act in question must have an international character, because the relevant purposes and principles of the United Nations are limited to matters which significantly affect international peace and security; and (ii) clearly to establish that it is not enough to supply that international character that actions are taken in one state to destabilise the government of another. (3) Sedley LJ rejected the submission that serious reasons for considering the appellant to be guilty of acts falling within article 1F(c) imported the criminal standard of proof (paras 33 to 35).
+The appellant was originally refused permission to appeal on this ground.
+But he now wishes to appeal on the different ground that, for there to be such serious reasons, it must be found more likely than not that the appellant is guilty of the relevant acts.
+This is of particular importance in his case, because of the Common Serjeants finding that the evidence was as consistent with his innocence as with his guilt.
+An international dimension?
+The question is whether labelling an act as terrorism or a person as a terrorist is sufficient to bring the act or the person within the scope of article 1F(c).
+Before the Court of Appeal, Mr Eicke QC, on behalf of the Home Secretary, did not dispute that article 1F(c) was not as wide as the definition of terrorism in section 1 of the Terrorism Act 2000 (see para 29).
+Further, by common consent the Qualification Directive conditions and qualifies the application of section 1 of the Terrorism Act to article 1F proceedings (see para 28).
+Before this Court, Mr Eicke has withdrawn any such concession and argues that, because the United Nations has condemned terrorism but not defined it, Member States are free to adopt their own definitions and that, therefore, acts falling within the domestic definition of terrorism will also be acts contrary to the purposes and principles of the United Nations, whether or not they have any international dimension or repercussions for international peace and security.
+In support of his argument, he cites the numerous General Assembly and Security Council resolutions on the subject of terrorism, sometimes with and sometimes without the adjective international.
+In 1994, the General Assembly of the United Nations adopted, by resolution 49/60, the annexed Declaration on Measures to Eliminate International Terrorism.
+By article 1: The States Members of the United Nations solemnly reaffirm their unequivocal condemnation of all acts, methods and practices of terrorism, wherever and by whomever committed, including those which jeopardise the friendly relations among states and peoples and threaten the territorial integrity and security of states.
+By article 2: Acts, methods and practices of terrorism constitute a grave violation of the purposes and principles of the United Nations, which may pose a threat to international peace and security, jeopardise friendly relations among states, hinder international cooperation and aim at the destruction of human rights, fundamental freedoms and democratic bases of society.
+And by article 3: Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them.
+By article 5(f), states were required to take effective measures before, among other things, granting asylum to ensure that the asylum seeker has not engaged in terrorist activities.
+In 1996, the General Assembly adopted, by resolution 51/210, the Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism.
+By article 3: The States Members of the United Nations reaffirm that States should take appropriate measures in conformity with the relevant provisions of national and international law, including international standards of human rights, before granting refugee status, for the purpose of ensuring that the asylum seeker has not participated in terrorist acts, . and, after granting refugee status, for the purpose of ensuring that that status is not used for the purpose of preparing or organising terrorist acts intended to be committed against other states or their citizens.
+Declarations are not, of course, binding in international law.
+Resolution 51/210 referred to the possibility of considering in the future the elaboration of a comprehensive convention on international terrorism and established an ad hoc committee to that end; a draft text has been prepared for discussion but as yet no such Convention has been agreed.
+In the meantime, a number of specific Conventions requiring states to criminalise certain particular acts of terrorism have been agreed.
+The Security Council has passed numerous resolutions concerning threats to international peace and security caused by acts of terrorism, including Resolution 1624 of 2005.
+Paragraph 8 of the Preamble to this reaffirms that acts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations, as is knowingly financing, planning and inciting terrorist acts.
+But paragraph 2 also stresses that States must ensure that any measures taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights law, refugee law, and humanitarian law.
+Mr Fitzgerald QC, on behalf of the appellant, argues that an act of terrorism can only be contrary to the purposes and principles of the United Nations if it impacts in some significant way upon international peace and security.
+In the Guidelines on International Protection: Application of Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, 2003, para 17, the UNHCR takes a view of terrorism which is consistent with the general principles quoted above at para 14: In cases involving a terrorist act, a correct application of article 1F(c) involves an assessment as to the extent to which the act impinges on the international plane in terms of its gravity, international impact, and implications for international peace and security.
+This position is maintained in the UNHCRs Note on the Impact of Security Council Resolution 1624 (2005) on the Application of Exclusion under Article 1F of the 1951 Convention relating to the Status of Refugees: The focus should . continue to be on the nature and impact of the acts themselves.
+In many cases, the acts in question will meet the criteria for exclusion as serious non political crimes within the meaning of article 1F(b).
+In others, such acts may come within the scope of article 1F(a), for example as crimes against humanity, while those crimes whose gravity and international impact is such that they are capable of affecting international peace, security and peaceful relations between states would be covered by article 1F(c) of the 1951 Convention.
+Thus, the kinds of conduct listed in [preambular paragraph] 8 of Resolution 1624 ie acts, methods and practices of terrorism and knowingly financing, planning and inciting terrorist acts qualify for exclusion under article 1F(c), if distinguished by these larger characteristics. (Emphasis supplied)
+B and D was decided by the Grand Chamber of the CJEU after the decision of the Court of Appeal in Al Sirri.
+The principal question referred by the Bundesverwaltungsgericht was whether mere membership of or support for an organisation listed in the Annex to the Council Common Position of 17 June 2002 on the application of specific measures to combat terrorism constituted a serious non political crime within article 12(2)(b) or an act contrary to the purposes and principles of the United Nations within article 12(2)(c) of the Qualification Directive.
+The Advocate General drew a distinction between terrorist acts in general, which depending upon the circumstances were likely to be categorised as serious non political crimes, and terrorist acts which were contrary to the purposes and principles of the United Nations.
+As to the latter, in his view, the UNHCR Guidelines and Background Note suggested that it is nevertheless necessary to verify whether they have an international dimension, especially in terms of their seriousness and their impact and implications for international peace and security.
+Within those limits, it therefore seems permissible to make a distinction between international terrorism and domestic terrorism (para 70, Adv Gen).
+The Grand Chamber confirmed that terrorist acts, even if committed with a purportedly political objective, fall to be regarded as serious non political crimes (para 81).
+Coming on to acts contrary to the principles and purposes of the United Nations, the Grand Chamber thought it clear from the Security Council Resolutions that the Security Council takes as its starting point the principle that international terrorist acts are generally speaking, and irrespective of any state participation, contrary to the purposes and principles of the United Nations (para 83).
+It is for that reason that the appellant has conceded that non state actors can be guilty of such acts.
+The Grand Chamber continued (para 84): It follows that as is argued in their written observations by all the governments which submitted such observations to the court, and by the European Commission the competent authorities of the Member States can also apply article 12(2)(c) of Directive 2004/83 to a person who, in the course of his membership of an organisation which is on the list forming the Annex to Common Position 2001/931, has been involved in terrorist acts with an international dimension.
+The B and D case is prayed in aid on each side of the argument.
+Mr Eicke, for the Secretary of State, correctly points out that the international dimension was not what the case was all about.
+The principal issue was whether mere membership of and support for a listed organisation was sufficient for either article 12(2)(b) or (c) to apply.
+The answer to this question was clearly no.
+The national authorities had first to consider whether the acts committed by the organisation fell within those provisions and secondly whether individual responsibility for carrying out those acts could be attributed to the persons concerned.
+In that context, little weight could be attached to the references to international terrorism and terrorist acts with an international dimension.
+Against that, argues Mr Fitzgerald, it is clear that both the Advocate General and the Grand Chamber were drawing a distinction between paragraphs (b) and (c) of article 12(2).
+There is no mention of an international element in the terrorist acts which could fall within paragraph (b), whereas the international element is referred to whenever reference is made to paragraph (c).
+Discussion and conclusions
+Approaching the matter in the light of the general principles discussed earlier, it is clear that the phrase acts contrary to the purposes and principles of the United Nations must have an autonomous meaning.
+It cannot be the case that individual Member States are free to adopt their own definitions.
+As Lord Steyn said in R v Secretary of State for the Home Department, Ex p Adan [2000] UKHL 67, [2001] 2 AC 477, In principle, there can be only one true interpretation of a treaty.
+There is, at least as yet, no specialist international court or other body to adjudicate upon Member States compliance with the Refugee Convention.
+The guidance given by the UNHCR is not binding, but should be accorded considerable weight, in the light of the obligation of Member States under article 35 of the Convention to facilitate its duty of supervising the application of the provisions of the Convention (see R v Asfaw [2008] AC 1061, per Lord Bingham at para 13, and R v Uxbridge Magistrates Court, Ex p Adimi [2001] QB 667, 678).
+Within the European Union the Qualification Directive is designed to lay down minimum standards with which Member States must comply.
+Sedley LJ correctly concluded that the adoption by section 54(2) of the 2006 Act of the meaning of terrorism contained in the 2000 Act has where necessary to be read down in an article 1F[(c)] case so as to keep its meaning within the scope of article 12(2)(c) of the Directive.
+The United Nations Security Council has declared that acts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations and this is repeated in recital 22 to the Qualification Directive.
+But it has done so in a context where there is as yet no internationally agreed definition of terrorism, no comprehensive international Convention binding Member States to take action against it, and where the international declarations adopted by the General Assembly are headed Measures to eliminate international terrorism.
+Above all, however, the principal purposes of the United Nations are to maintain international peace and security, to remove threats to that peace, and to develop In those circumstances, it is our view that the appropriately cautious and friendly relations among nations.
+It is also noteworthy that the CJEU, despite recital 22 to the Directive, consistently referred to international terrorism, when discussing article 12(2)(c) in B and D.
+restrictive approach would be to adopt para 17 of the UNHCR Guidelines: Article 1F(c) is only triggered in extreme circumstances by activity which attacks the very basis of the international communitys coexistence.
+Such activity must have an international dimension.
+Crimes capable of affecting international peace, security and peaceful relations between states, as well as serious and sustained violations of human rights would fall under this category.
+The essence of terrorism is the commission, organisation, incitement or threat of serious acts of violence against persons or property for the purpose of intimidating a population or compelling a government or international organisation to act or not to act in a particular way (see, for example, the definition in article 2 of the draft comprehensive Convention), as Sedley LJ put it in the Court of Appeal, the use for political ends of fear induced by violence (para 31).
+It is, it seems to us, very likely that inducing terror in the civilian population or putting such extreme pressures upon a government will also have the international repercussions referred to by the UNHCR.
+In this particular case, the AIT did not consider that any such repercussions were required, but commented that if we are wrong about that we consider the killing itself to be an act of terrorism likely to have significant international repercussions, as indeed it appears to have done (para 47).
+When the case returns to the Tribunal, the Tribunal will have to consider the totality of the evidence and apply the test set out above.
+Finally, is it enough to meet that test that a person plots in one country to destabilise conditions in another? This must depend upon the circumstances of the particular case.
+It clearly would be enough if the government (or those in control) of one state offered a safe haven to terrorists to plot and carry out their terrorist operations against another state.
+That is what the Taliban were doing by offering Osama bin Laden and Al Qaeda a safe haven in Afghanistan at the time.
+As the UNHCR says, this would have clear implications for inter state relations.
+The same may not be true of simply being in one place and doing things which have a result in another.
+The test is whether the resulting acts have the requisite serious effect upon international peace, security and peaceful relations between states. (3) The case of DD
+The facts
+The appellant is a citizen of Afghanistan.
+He arrived in the United Kingdom on 18 January 2007 and applied for asylum on the same day.
+The basis of his claim was that he feared persecution because of his association with his brother AD, who was a well known Jamiat e Islami commander in Afghanistan.
+Following the fall of the Najibullah government in 1992, the appellants brother became responsible for other commanders in the north of Afghanistan and formed a number of strategic alliances, ultimately allying himself with the Taliban.
+The appellant acted as his deputy and commanded between 50 and 300 men.
+He was later demoted and reduced to the command of no more than 20 men.
+Following US military intervention in Afghanistan, the appellant and his brother fled to Pakistan.
+In 2004, the appellants brother was assassinated in Pakistan by his enemies who held positions in the Karzai government of Afghanistan.
+The appellant was also a target of the assassination attempt and sustained gunshot injuries.
+After about a month, he returned to Afghanistan and sought protection from his enemies by joining a military grouping, Hizb e Islami.
+He commanded 10 15 people and engaged in both offensive and defensive military operations against both the Afghan government and the forces of ISAF.
+The appellants nephew (the son of his deceased brother) was killed in Peshawar in about September 2006.
+The appellant was ordered to fight in his home area.
+He decided that it would be too dangerous for him to do so as he had enemies there who were high ranking members of the Karzai government.
+He fled once again to Pakistan and arrangements were made through an agent for him to travel from there to the United Kingdom.
+He claimed asylum saying that he feared that, if he were returned to Afghanistan, he would be killed by his deceased brothers enemies or by Hizb e Islami as a traitor.
+By letter dated 27 April 2007, the Secretary of State refused the claim on the grounds that the appellants account was not credible.
+In particular, he did not accept the account that he gave of his role in Hizb e Islami.
+By letter dated 6 August 2007, the Secretary of State gave supplementary reasons for the refusal.
+These were that, even if the appellants claimed activities in Afghanistan were substantiated, he was not entitled to asylum in any event.
+This was because his claim that he had fought against ISAF, if accepted, meant that he had been guilty of acts contrary to the purposes and principles of the United Nations and was therefore excluded from the definition of refugee by reason of article 1F(c) of the Refugee Convention.
+The appellant appealed to the Asylum and Immigration Tribunal (AIT).
+IJ Morgan found the appellant to be credible and allowed his appeal under the Refugee Convention and under article 3 of the European Convention on Human Rights (ECHR).
+He had a well founded fear of persecution by his brothers enemies some of whom were members of the Karzai government.
+The judge was not persuaded that the appellant had been guilty of acts contrary to the purposes and principles of the United Nations.
+For reasons that are immaterial to the present appeal, a second stage reconsideration was ordered by SIJ Moulden.
+The second stage reconsideration was conducted by IJ Simpson who, by a determination promulgated on 28 August 2008, allowed the appellants appeal on both asylum and article 3 of the ECHR grounds.
+The judge found the appellant to be credible, except that she rejected his assertion that his actions with Hizb e Islami in Afghanistan were defensive.
+He had a longstanding history of military involvement in Afghanistan, including at a high level, deputy to his Commander brother, and independently a Commander in Hizb e Islami Hekmatayar in Kunar.
+There were prima facie grounds for considering his actions were both offensive and defensive.
+As regards article 1F(c), the judge concluded that section 54 of the 2006 Act (see para 7 above), which came into effect on 31 August 2006, appeared to have effected a substantive change in the law and that, as a matter of natural justice, it applied only to acts after it came into force, that is from September 2006.
+She concluded at para 151: Having regard to the combined lack of specificity of evidence of the appellants conduct with Hizb e Islami and the highly reasonable likelihood, given the chronology, that his involvement with Hizb e Islami was at its end stage after September 2006 and the coming into effect of section 54, I find in sum there are not serious grounds for considering he committed a barred act(s).
+I find article 1F(c) does not apply.
+The Court of Appeal
+The issues before the Court of Appeal concerned (i) the interpretation and applicability of the 2006 Act and (ii) whether and, if so, to what extent on the AITs findings the appellant had been guilty of acts contrary to the purposes and principles of the United Nations within the meaning of article 1F(c) of the Refugee Convention.
+Pill LJ (with whom Rimer and Black LJJ agreed) allowed the Secretary of States appeal.
+He held that, on the findings of the AIT, the appellant had not committed any acts of terrorism within the meaning of section 54 of the 2006 Act.
+The nub of the courts reasoning on the article 1F(c) point is contained in para 64 of Pill LJs judgment: The UN Security Council has mandated forces to conduct operations in Afghanistan.
+The force is mandated to assist in maintaining security and to protect and support the UNs work in Afghanistan so that its personnel engaged in reconstruction and humanitarian efforts can operate in a secure environment.
+Direct military action against forces carrying out that mandate is in my opinion action contrary to the purposes and principles of the United Nations and attracts the exemption provided by article 1F(c) of the Convention.
+As we explain below, we substantially agree with this conclusion.
+The Court of Appeal nevertheless remitted the case for reconsideration by the Upper Tribunal because the AIT had failed to consider the appellants individual responsibility as required by this Court in JS (Sri Lanka) (and by the CJEU in B and D) and whether he had been guilty of acts contrary to the purposes and principles of the United Nations.
+The United Nations and Afghanistan
+Ever since the Soviet withdrawal from Afghanistan in 1989, the United Nations has been trying to bring an end to the fighting that has been taking place in that country.
+As long ago as 28 August 1998, Security Council Resolution 1193 called for a ceasefire and expressed grave concern about the continuing Afghan conflict and the Taliban forces offensive which was causing a serious and growing threat to regional and international peace and security, as well as extensive human suffering.
+Similar resolutions followed.
+For security reasons, all international United Nations personnel were withdrawn from Afghanistan in September 2001.
+On 5 December 2001, the participants in the United Nations Talks on Afghanistan entered into the Bonn Agreement on Provisional Arrangements in Afghanistan Pending the Re establishment of Permanent Government Institutions.
+The participants pledged their commitment to do all within their means and influence to ensure that security was provided in Afghanistan.
+They agreed that an Interim Authority should be established (to be the repository of Afghan sovereignty) and that, pending the establishment and training of new Afghan security and armed forces, they would request the United Nations Security Council to consider authorising the early deployment in Afghanistan of a United Nations mandated force to assist in the maintenance of security in Kabul and its surrounding areas.
+By Resolution 1383 (6 December 2001), the Security Council endorsed the Bonn Agreement.
+By Resolution 1386 (20 December 2001), acting under Chapter VII of the United Nations Charter, the Security Council authorised the establishment for 6 months of ISAF to assist the Afghan Interim Authority in the maintenance of security in Kabul and its surrounding areas, so that the Afghan Interim Authority as well as the personnel of the United Nations can operate in a secure environment.
+The resolution (i) authorised the Member States participating in ISAF to take all necessary measures to fulfil its mandate; called upon ISAF to work in close consultation with the Afghan Interim Authority in the implementation of the force mandate; (ii) called upon all Afghans to cooperate with ISAF; and (iii) called upon the Member States participating in ISAF to provide assistance to help the Afghan Interim Authority in the establishment and training of new Afghan security and armed forces.
+On 18 March 2002, the Secretary General submitted a long report entitled The situation in Afghanistan and its implications for international peace and security.
+The report contained a good deal of detail about the situation and expressed the hope that the Security Council would support the wish of the Afghan people for the expansion of the operation of ISAF.
+At para 95, it said: the next step, to ensure that all United Nations efforts are harnessed to fully support the implementation of the Bonn Agreement, would be to integrate all the existing United Nations elements in Afghanistan into a single mission, the United Nations Assistance Mission in Afghanistan (UNAMA).
+The missions mandate would be (i) to fulfil the tasks and responsibilities, including those related to human rights, the rule of law and gender issues, entrusted to the United Nations in the Bonn Agreement, which were endorsed by the Security Council in its resolution 1383 (2001); (ii) to promote national reconciliation and rapprochement throughout the country; and (iii) to manage all United Nations humanitarian relief, recovery and reconstruction activities in Afghanistan under the overall authority of the United Nations Special Representative and in coordination with the Interim Authority and successor administrations of Afghanistan.
+By Resolution 1401 (28 March 2002), the Security Council endorsed the establishment of UNAMA for an initial period of 12 months with the mandate and structure set out in the Secretary Generals report of 18 March 2002.
+By Resolution 1413 (23 May 2002), the Security Council extended the mandate of ISAF for a further 6 months from 20 June 2002, authorising the Member States participating in ISAF to take all necessary steps to fulfil its mandate.
+By one of its recitals, the Security Council determined that the situation in Afghanistan still constituted a threat to international peace and security.
+The mandate was extended for a further year beyond 20 December 2002 by Resolution 1444 (27 November 2002).
+Once again, the threat to international peace and security posed by the situation in Afghanistan was recorded.
+The mandate of UNAMA was extended for a further period of 12 months by Resolution 1471 (28 March 2003).
+On 23 July 2003, the Secretary General reported on the situation in Afghanistan and its implications for international peace and security.
+At para 67 of his report, he said that the consequences of failing to provide for sufficient security for the Bonn process to succeed may have implications far beyond Afghanistan.
+On 11 August 2003, NATO assumed command of ISAF.
+By Resolution 1510 (13 October 2003), the Security Council extended ISAFs mandate for a further 12 months to allow it, as resources permit, to support the Afghan Transitional Authority and its successors in the maintenance of security in areas of Afghanistan outside Kabul and its environs, so that the Afghan Authorities as well as the personnel of the United Nations and other international civilian personnel engaged, in particular in reconstruction and humanitarian efforts, can operate in a secure environment, and to provide security assistance for the performance of other tasks in support of the Bonn Agreement.
+It called upon ISAF to continue to work in close consultation with the Afghan Transitional Authority and its successors as well as the Special Representative of the Secretary General.
+By its recitals, the Security Council recognised that the responsibility for providing security and law and order throughout the country resided with the Afghans themselves and welcomed the continuing cooperation of the Afghan Transitional Authority with ISAF.
+Yet again, the resolution recorded that the situation still constituted a threat to international peace and security.
+By Resolution 1536 (26 March 2004), the Security Council extended the mandate of UNAMA for a further 12 months.
+By Resolution 1563 (17 September 2004), the mandate of ISAF was extended for a further 12 months beyond 13 October 2004.
+In subsequent years, the mandates of UNAMA and ISAF were again extended for periods of 12 months at a time.
+As will become apparent, the differences between ISAF and UNAMA have assumed some importance in this case.
+ISAF is an armed force, but it is not a United Nations force.
+It has never been under direct United Nations command.
+It was initially under the lead command of single nations (starting with the United Kingdom).
+Since August 2003 it has been under the command of NATO.
+On the other hand, UNAMA is an assistance mission under United Nations control.
+It is not an armed force.
+But the objectives of ISAF and UNAMA are essentially the same, although the means by which they seek to achieve them differ.
+In particular, they both aim to promote the Bonn Agreement and to maintain peace and security in Afghanistan, thereby reducing the threat to international peace and security posed by the situation in Afghanistan.
+Some of the more recent Security Council resolutions explicitly make the link between the two organisations.
+Thus, recital 7 to Resolution 1776 (19 September 2007) is in these terms: Stressing the central role that the United Nations continues to play in promoting peace and stability in Afghanistan, noting, in the context of a comprehensive approach, the synergies in the objectives of the United Nations Assistance Mission in Afghanistan (UNAMA) and of ISAF, and stressing the need for further sustained cooperation, coordination and mutual support, taking due account of their respective designated responsibilities (underlining added).
+Similar language appears in the recitals to Resolution 1806 (20 March 2008), Resolution 1833 (22 September 2008), Resolution 1868 (23 March 2009) and subsequent resolutions.
+The appellants case on article 1F(c)
+Mr Drabble QC, on behalf of DD, relies upon the general approach to article 1F(c) discussed earlier.
+In particular, he argues that participation in an armed attack against forces operating under and carrying out a United Nations mandate does not without more engage article 1F(c).
+Armed insurrection is not, in itself, contrary to the purposes and principles of the United Nations.
+Internal armed conflict is now covered by international humanitarian law, in the shape of the 1949 Geneva Conventions.
+United Nations mandated forces are often deployed during or after an armed conflict, where international humanitarian law provides the appropriate legal framework for determining the lawfulness of armed attacks against them.
+The distinction between ISAF and UNAMA is crucial to the argument.
+Armed attacks on UNAMA could be characterised as contrary to the purposes and principles of the United Nations.
+UNAMA is a non combatant peacekeeping force which is protected under the 1994 Convention and the 2005 Protocol on the Safety of United Nations and Associated Personnel, whereas ISAF is not.
+Article 1(a)(i) of the 1994 Convention defines United Nations Personnel as persons engaged or deployed by the Secretary General of the United Nations as members of the military, police or civilian components of a United Nations operation.
+Article 1(c) defines a United Nations operation as an operation established by the component organ of the United Nationsand conducted under United Nations authority and control.
+Article 9 provides that various specified acts against any United Nations or associated personnel (including murder or other attacks) shall be made by each State Party a crime under its national law.
+But article 2(2) provides that the Convention is not to apply to a United Nations operation authorised by the Security Council as an enforcement action under Chapter VII of the Charter of the United Nations in which any of the personnel are engaged as combatants against organised armed forces and to which the law of international armed conflict applies.
+Article 2(2) is consistent with the broad principle that the laws of war apply to UN forces engaged in hostilities, and therefore such forces do not have immunity from attack: p 624 of Documents on the Laws of War, ed Roberts and Guelff, 3rd ed (2000).
+The distinction between combatants and peacekeeping personnel was considered by the Special Court for Sierra Leone in Prosecutor v Issa Hassan Sesay, Morris Kallon & Augustine Gbao (Case No SCSL 04 15T, 2 March 2009).
+In that case, the Special Court handed down the first convictions for the war crime of attacking personnel involved in a peacekeeping operation, namely members of the United Nations Assistance Mission in Sierra Leone, who were entitled to the protection given to civilians under the international law of armed conflict.
+Therefore, it is argued, military activities against United Nations mandated forces should only provide a basis for exclusion under article 1F(c) where (i) the act or acts in question constitute a crime in international law; or (ii) the act or acts, which must be of sufficient gravity to have a negative impact on international peace and security, have been specifically identified as contrary to the purposes and principles of the United Nations, either by clear decision of the Security Council acting within its competence, or by way of agreement or consensus among states at large; and (iii) there are serious reasons for considering that the individual concerned was personally responsible for the act or acts in question.
+Discussion and conclusions
+The acts relied on by the Secretary of State are acts of violence by the appellant against ISAF, the international force that was mandated by the United Nations for the express purpose of maintaining peace and security in Afghanistan, thereby assisting in the maintaining of international peace and security.
+Time and again, the resolutions of the Security Council recorded that the role and responsibility of ISAF was to assist in the maintaining of international peace and security.
+This is one of the most important purposes set out in article 1 of the United Nations Charter (see para 10 above).
+In these circumstances, it might be thought to be obvious at first sight that such acts are contrary to the purposes and principles of the United Nations.
+It is noteworthy that Mr Drabble (rightly) accepts that, if the appellant had been guilty of fighting UNAMA, he would in principle have been guilty of acts contrary to the purposes and practices of the United Nations.
+We say in principle, because it would still be necessary to examine all the facts (as per B and D).
+So why does it make any difference that the appellant was fighting ISAF rather than attacking UNAMA? That the aims and objectives of ISAF and UNAMA are congruent is amply borne out by the Security Council Resolutions: see para 58 above.
+The answer given by Mr Drabble and Mr Fordham is that the 1994 Convention and 2005 Protocol would apply to attacks on UNAMA, but not to attacks on ISAF.
+Peacekeeping forces, unlike combat forces, are entitled to the same protection against attack as that accorded to civilians under international humanitarian law, as long as they are not taking a direct part in hostilities.
+Under the Statute of the International Criminal Court (articles 8(2)(b)(iii) and 9(e)(iii)), intentionally directed attacks against personnel involved in a peacekeeping mission in accordance with the Charter of the United Nations constitute a war crime: see rule 33 in Customary International Humanitarian Law vol 1:Rules (2005, International Committee of the Red Cross).
+We accept the points made by Mr Drabble and Mr Fordham about the differences between ISAF and UNAMA which are summarised at paras 60 and 61 above.
+These differences are not in doubt.
+But they are not material to the issue of whether the appellant is excluded from the refugee status by article 1F(c).
+The question which rules of law apply to attacks on ISAF and UNAMA is categorically different from (and irrelevant to) the question whether an attack against either body is contrary to the purposes and principles of the United Nations.
+This latter question must be determined on an examination of all the relevant facts.
+These include the terms of the Security Council Resolutions by which ISAF was mandated in the first place, and by which its mandate was renewed from time to time.
+Mr Drabble submits that it is relevant to the issue in this case that, although the Security Council has mandated many military enforcement operations, it has never sought to characterise opposition, even armed opposition, as contrary to the purposes and principles of the United Nations.
+In some cases, a United Nations resolution explicitly states that a particular activity is contrary to the purposes and principles of the United Nations. (One example is the condemnation of international terrorism in General Assembly resolution 49/60, referred to in para 27 above.) However, it is not suggested, either by the UNHCR or by the Supreme Court of Canada in Pushpanathan, that this is the only criterion.
+In our view, the principled test is that put forward by the UNHCR in para 17 of its Guidelines and quoted at para 38 above.
+In Pushpanathan, the court did not have to consider whether an attack on a United Nations body or a United Nations mandated body constitutes acts contrary to the purposes and principles of the United Nations.
+We conclude that there is no basis for the view that such an attack can only be regarded as an act contrary to the purposes and principles of the United Nations in circumstances where (i) it is by consensus in international law explicitly recognised as being contrary to these purposes and principles, or (ii) it amounts to a serious and sustained violation of fundamental human rights.
+This conclusion is consistent with Mr Drabbles acceptance that an attack on UNAMA is in principle capable of satisfying article 1F(c), despite the fact that there appears to be no United Nations resolution (or other formal international decision) which explicitly recognises that an attack against UNAMA would be contrary to the purposes and principles of the United Nations.
+In short, an attack on ISAF is in principle capable of being an act contrary to the purposes and principles of the United Nations.
+The fundamental aims and objectives of ISAF accord with the first purpose stated in article 1 of the United Nations Charter.
+By attacking ISAF, the appellant was seeking to frustrate that purpose.
+To hold that his acts are in principle capable of being acts contrary to the purposes and principles of the United Nations accords with common sense and is correct in law.
+This conclusion accords with that of Hogan J in the High Court of Ireland in B v Refugee Appeals Tribunal and others [2011] IEHC 198 at para 56.
+For these reasons, we agree with the conclusion of the Court of Appeal, quoted in para 47 above.
+(4) Standard of proof
+This issue arises in an acute form in Al Sirri but could arise in any proposed exclusion under article 1F.
+The article requires that there be serious reasons for considering that the individual asylum seeker has committed the crimes referred to in article 1F(a) or (b) or been guilty of the acts referred to in article 1F(c).
+In Al Sirri, it was argued in the Court of Appeal that this imported the criminal standard of proof beyond reasonable doubt.
+In rejecting that submission, Sedley LJ said this, at para 33: . it clearly sets a standard above mere suspicion.
+Beyond this, it is a mistake to try to paraphrase the straightforward language of the Convention: it has to be treated as meaning what it says.
+In JS (Sri Lanka), at para 39, Lord Brown was inclined to agree with this
+passage, having also pointed out that . serious reasons for considering obviously imports a higher test for exclusion than would, say, an expression like reasonable grounds for suspecting.
+Considering approximates rather to believing than to suspecting.
+In Al Sirri, the Common Serjeant had considered that the evidence admissible in a criminal trial for conspiracy to murder General Masoud was as consistent with innocence as with guilt.
+Thus he, at least, was not satisfied of Al Sirris guilt even on the balance of probabilities.
+Mr Fitzgerald QC argues that it is not possible to have serious reasons for considering a person to have committed a crime or be guilty of a particular act unless you can be satisfied that it is more likely than not that he did it.
+In this he is less ambitious than the UNHCR.
+Its 2003 Guidelines, at para 35, state that clear and credible evidence is required.
+It is not necessary for an applicant to have been convicted of a criminal offence, nor does the criminal standard of proof need to be met.
+However, the 2003 Background Note, at para 107, also states that: . in order to ensure that article 1F is applied in a manner consistent with the overall humanitarian objective of the 1951 Convention, the standard of proof should be high enough to ensure that bona fide refugees are not excluded erroneously.
+Hence, the balance of probabilities is too low a threshold.
+He also relies upon the Australian case of W97/164 v Minister for Immigration and Multicultural Affairs [1998] AATA 618, in which Mathews J said this at para 42: The article provides a direction to decision makers in words that are clear of meaning and relatively easy of application.
+To re state this test in terms of a standard of proof is unnecessary and may in some cases lead to confusion and error.
+But she went on in para 43 to say this: I find it difficult to accept that the requirement that there be serious reasons for considering that a crime against humanity has been committed should be pitched so low as to fall, in all cases, below the civil standard of proof.
+The seriousness of the allegation itself and the extreme consequences which can flow from an alternative finding upon it would, in my view, require a decision maker to give substantial content to the requirement that there be serious reasons for considering (emphasis added) that such a crime has been committed.
+On the other hand, in Arquita v Minister for Immigration and Multi cultural Affairs [2000] FCA 1889, 106 FCR 465, at para 54, Weinberg J disagreed.
+There must be evidence available upon which it could reasonably and properly be concluded that the applicant has committed the crime alleged.
+To meet that requirement, the evidence must be capable of being regarded as strong.
+But evidence could properly be characterised as strong without meeting either the criminal or the civil standard of proof.
+He did, however, say at para 58 that it would have to go beyond establishing merely that there was a prima facie case.
+The New Zealand courts have followed the Court of Appeal in Al Sirri in taking the view that the Refugee Convention simply means what it says and that adding glosses by analogy with civil litigation or criminal prosecution simply confuses matters: see Hammond J in Tamil X v Refugee Status Appeals Authority; Attorney General (Minister of Immigration) v Y [2009] NZCA 488, [2009] 2 NZLR 73, paras 77, 79; upheld by the Supreme Court in Attorney General (Minister of Immigration) v Tamil X [2010] NZSC 107, [2011] 1 NZLR 721, para 39.
+In Canada, the courts have adopted a lower standard of proof than the balance of probabilities: see Ramirez v Minister of Employment and Immigration (1992) 89 DLR (4th) 173, para 5.
+But in Cardenas v Canada (Minister of Employment and Immigration) [1994] FCJ No 139, it was said that the Board must base its decision to exclude only on clear and convincing evidence, not simply on suspicion and speculation.
+And the German Bundesverwaltungsgericht has said that as a rule, reasons are good when there is clear, credible evidence that such crimes have been committed (BVerwG 10 C 2.10).
+We are, it is clear, attempting to discern the autonomous meaning of the words serious reasons for considering.
+We do so in the light of the UNHCR view, with which we agree, that the exclusion clauses in the Refugee Convention must be restrictively interpreted and cautiously applied.
+This leads us to draw the following conclusions: (1) Serious reasons is stronger than reasonable grounds. (2) The evidence from which those reasons are derived must be clear and credible or strong. (3) Considering is stronger than suspecting.
+In our view it is also stronger than believing.
+It requires the considered judgment of the decision maker. (4) The decision maker need not be satisfied beyond reasonable doubt or to the standard required in criminal law. (5) It is unnecessary to import our domestic standards of proof into the question.
+The circumstances of refugee claims, and the nature of the evidence available, are so variable.
+However, if the decision maker is satisfied that it is more likely than not that the applicant has not committed the crimes in question or has not been guilty of acts contrary to the purposes and principles of the United Nations, it is difficult to see how there could be serious reasons for considering that he had done so.
+The reality is that there are unlikely to be sufficiently serious reasons for considering the applicant to be guilty unless the decision maker can be satisfied on the balance of probabilities that he is.
+But the task of the decision maker is to apply the words of the Convention (and the Directive) in the particular case.
+(5) Disposal
+We would dismiss the appeal in DD.
+The object of his argument was to establish that his activities could not be contrary to the principles and purposes of the United Nations.
+In this he has failed.
+However, the Court of Appeal were correct to hold that there were material errors of law in the AITs findings in that they failed to examine the appellants conduct in the manner prescribed by this court in JS and to consider whether he had been guilty of acts contrary to the purposes and principles of the United Nations.
+The order remitting the case to the Upper Tribunal for reconsideration should stand.
+The appeal in Al Sirri is rather different.
+Technically, the appellant has challenged the decision of the Court of Appeal to remit his case to the tribunal, rather than to find that he was not excluded from the status of refugee.
+We would dismiss that appeal.
+But the reality is that he was challenging certain aspects of the guidance given to the tribunal which would hear the remitted case.
+In that he has succeeded to some extent.
+Consideration will also have to be given to whether it is more appropriate for the case to be remitted to the First tier or to the Upper Tribunal, given that the evidence will have to be examined afresh.
+The parties therefore have 14 days from the date of judgment to file their submissions as to the precise form of the order and as to costs.
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+The liability of employers for deaths caused by mesothelioma has pre occupied courts and legislators over recent years.
+The present appeals concern claims to pass the burden of this liability on to insurers, made either by employers or in the case of insolvent employers by the personal representatives of former employees using the mechanism of the Third Party (Rights against Insurers) Act 1930.
+The appeals concern employers liability insurance.
+This is in contrast with Bolton MBC v Municipal Mutual Insurance Ltd [2006] EWCA Civ 50, [2006] 1 WLR 1492 where public liability insurance was in issue.
+Employers liability focuses necessarily upon the relevant employment relationships and activities.
+Public liability relates to any of the insureds relationships and to activities affecting the world at large.
+Another feature of employers liability is that, under the Employers Liability (Compulsory Insurance) Act 1969 (the ELCIA), it has since 1 January 1972 been compulsory for every employer other than local authorities carrying on any business in Great Britain to insure, and maintain insurance, under one or more approved policies with an authorised insurer or insurers against liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment in Great Britain in that business, but except in so far as regulations otherwise provide not including injury or disease suffered or contracted outside Great
+Britain
+The appeals arise because the relevant insurers maintain that the employers liability insurances which they issued respond (or, better, could only have responded) to mesothelioma which developed (or, possibly, manifested itself) as a disease during the relevant insurance periods all long past.
+In contrast, the relevant employers and personal representatives maintain that the insurances respond to mesothelioma which develops and manifests itself later; all that is required, they say, is exposure of the victim during the insurance period to asbestos in circumstances where the law attributes responsibility for the mesothelioma to such exposure.
+These alternative bases of response (or triggers of liability) have been loosely described as an occurrence (or manifestation) basis and an exposure (or causation) basis.
+It is in issue whether the ELCIA, after it came into force, mandated any particular basis of response.
+A secondary issue, arising if the insurances only respond on an occurrence basis, is whether the aetiology of mesothelioma justifies a conclusion that there was during the relevant insurance period an occurrence sufficient to trigger liability under the insurances.
+Burton J, [2008] EWHC 2692 (QB), concluded that the relevant insurances all responded on an exposure basis.
+The Court of Appeal, [2010] EWCA Civ 1096, by a majority (Rix and Stanley Burnton LJJ), upheld the judge in relation to some of the insurances (particularly those covering disease contracted during the relevant insurance period); but they concluded that others (particularly those covering disease sustained during the insurance period) responded only on an occurrence or manifestation basis.
+Smith LJ would have upheld the judges judgment in its entirety.
+The full judgments in both courts repay study.
+They have been of great assistance to this court and make it possible to go directly to the heart of the issues.
+Mesothelioma is a hideous disease that is inevitably fatal.
+In most cases, indeed possibly in all cases, it is caused by the inhalation of asbestos fibres: Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10, [2011] 2 AC 229, para 1, per Lord Phillips.
+It is a cancer of the pleura, which are thin linings around the lungs and on the inside of the rib cage.
+It is usually undetectable until shortly before death.
+Its unusual features include what Burton J in this case at para 30 described as the unknowability and indescribability of its precise pathogenesis.
+In particular, it is impossible to know whether any particular inhalation of asbestos (at least any occurring more than ten or so years prior to diagnosability) played any or no part in such development.
+Because of this unusual feature, the law has developed a special rule.
+The special rule was the product of judicial innovation in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32 and in Barker v Corus UK Ltd [2006] UKHL 20; [2006] 2 AC 572.
+It was modified by statutory intervention in the form of the Compensation Act 2006, section 3.
+Leaving aside exposures occurring within the ten or so years prior to diagnosability, the rule can now be stated as being that when a victim contracts mesothelioma each person who has, in breach of duty, been responsible for exposing the victim to a significant quantity of asbestos dust and thus creating a "material increase in risk" of the victim contracting the disease will be held to be jointly and severally liable in respect of the disease.
+Burton Js findings in the present case justify certain further propositions, mostly also corresponding with the summary in Lord Phillips judgment in Sienkiewicz (para 19): (i) A significant proportion of those who contract mesothelioma have no record of occupational exposure to asbestos.
+The likelihood is that (vi) in their case the disease results from inhalation of asbestos dust that is in the environment.
+There is, however, a possibility that some cases of mesothelioma are "idiopathic", i.e. attributable to an unknown cause other than asbestos. (ii) The more fibres that are inhaled, the greater the risk of contracting mesothelioma. (iii) There is usually a very long period between the exposure to asbestos and the development of the first malignant cell.
+Typically this can be at least 30 years. (iv) For a lengthy period (perhaps another five years) after the development of the first malignant cell, there remains a possibility of dormancy and reversal, but at a point (Burton J thought a further five years or so before the disease manifested itself, and was thus diagnosable) a process of angiogenesis will occur.
+This involves the development by malignant cells of their own independent blood supply, so assuring their continuing growth. (v) The mechanism by which asbestos fibres cause mesothelioma is still not fully understood.
+It is believed that a cell has to go through 6 or 7 genetic mutations before it becomes malignant, and asbestos fibres may have causative effect on each of these.
+It is also possible that asbestos fibres have a causative effect by inhibiting the activity of natural killer cells that would otherwise destroy a mutating cell before it reaches the stage of becoming malignant.
+Mesothelioma currently claims about 3000 lives a year in the United Kingdom.
+This speaks to the common use of asbestos materials up to the 1960s and 1970s.
+In Annex I to his judgment Rix LJ set out the insuring clauses of the various forms of policy wording in use from time to time.
+Subject to re ordering to reflect the development of the language, Annex A to this judgment includes the same and some further wording.
+It can be seen that the Excess policies and the first two MMI policies promise to indemnify the insured employer against liability if at any time during the period of insurance (or of any renewal) any employee shall sustain under the earlier policies personal injury by accident or disease or under the later policies [any] bodily injury or disease in the case of the first Excess policy while engaged in the service of the Employer or in other cases arising out of and in the course of [his] employment by the insured employer.
+In the case of the Independent policy, the insurer, under the recital, promised to indemnify the employer during the period of insurance or of any renewal.
+The insuring clause itself contains no express limitation to any period.
+It promises indemnity against all sums for which the employer shall be liable for damages for such injury or disease if any employee shall sustain bodily injury or disease arising out of and in the course of his employment by the Insured in connection with the Contract specified or type of work described in the Schedule.
+The third MMI policy and the BAI policies were in more developed form.
+The former promises indemnity in respect of legal liability for sums payable as compensation for bodily injury or disease (including death resulting from such bodily injury or disease) suffered by any employee when such injury or disease arises out of and in the course of employment by the Insured and is sustained or contracted during the currency of this Policy.
+The latter promised indemnity against all sums which the Insured may become liable to pay to any Employee . in respect of any claim for injury sustained or disease contracted by such Employee during the period of insurance or any renewal.
+The insurers party to the present appeals have at all times represented only a small part of the employers liability insurance market.
+By far the larger part of the market consists of companies who until the late 1960s (when competition rules intervened) operated a tariff system which bound them to adopt a specified policy form and specified rates.
+Until 1948 tariff insurance was focused on Workmens Compensation Act claims, but in 1948 legislative changes (in particular the abolition by the Law Reform (Personal Injuries) Act 1948 of the doctrine of common employment) made a common law claim for future accruing causes of action much more attractive.
+It may well have been in anticipation of these changes that the tariff companies introduced a new form of policy in May 1948, still in widespread use today, providing indemnity if any employee shall sustain any personal injury by accident or disease caused during the period of insurance.
+Under this tariff wording, sustain looks to the occurrence of an accident or development of a disease at any time, while caused makes clear that the trigger to cover is that the accident or disease has been caused during the insurance period.
+The present insurers were non tariff companies, and have always been free to set their own wordings.
+From dates after the insurances the subject of this appeal, three of the insurers in fact ceased to use the wordings set out in Annex A, and themselves moved expressly to causation based wordings Excess in about 1976, Independent in the mid 1980s, and BAI in 1983.
+As a matter of insurance practice, however, until the decision in Bolton in 2006, all these wordings, whether tariff or non tariff and whether using the language caused, sustain or sustained or contracted, paid out on long tail claims (including the mesothelioma claims which became increasingly frequent in the 1980s) by reference to the date(s) of exposure.
+Where successive employers with different insurers had exposed a particular employee victim to asbestos, liability was in practice apportioned between the employers, and so insurers, broadly according to the extent of exposure for which each employer was responsible.
+The rival cases
+Insurers submit that all the wordings in Annex A require the injury or disease to occur during the period of insurance or of any renewal.
+In the alternative, if the use of the word contracted in the third MMI policy and the BAI policies or the different formulation of the Independent policy leads to any different conclusion in any of such cases, they submit that this leaves unaffected the clear meaning of the Excess and first two MMI policy wordings.
+The employers and interested employees contend that all these policies are to be understood as operating on an exposure or causation basis.
+The implications of these alternative interpretations are clear.
+On insurers primary contention, the policies set out in Annex A would not respond to current mesothelioma claims.
+It is unlikely that most of them would have responded to many, if any, mesothelioma claims, since it was only in the 1980s that such claims began to emerge to any great extent.
+Policies written on a causation basis since the dates indicated in paragraph 10 above would also not respond to current mesothelioma claims.
+Insurers response is that any insurance must be read according to its terms.
+Until 1 January 1972, when the ELCIA came into force, it was not obligatory for employers to have any form of employers liability insurance.
+Further, viewed on an occurrence or manifestation basis, the policies would pick up long tail claims arising from exposure occurring at any time in the past.
+In this connection, it is to be noted that various long tail diseases were well recognised perils from the era of Workmens Compensation legislation before 1948.
+Instances were scrotal cancer, pneumoconiosis and more specifically (from the time of Merewether and Prices 1930 Report on Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry) asbestosis.
+All these would only develop over and could manifest themselves after considerable periods of years.
+Following upon the 1930 report, The Asbestos Industry Regulations 1931 (SI 1931/1140) were introduced to regulate factories handling and processing raw fibre, and in 1969 The Asbestos Regulations 1969 (SI 1969/690) extended this regulation more widely it appears in the light of an appreciation that mesothelioma could result from exposure to small quantities of asbestos dust (see In re T & N Ltd (No 3) [2006] EWHC 1447 (Ch), [2007] 1 All ER 851, para 118).
+The Court of Appeals conclusions
+The force of insurers case rests in the use of the word sustain, whether in connection with the phrase personal injury by accident or disease or bodily injury or disease or in the conjunction injury or disease . sustained or contracted or injury sustained or disease contracted.
+Rix and Stanley Burnton LJJ concluded that the word sustain looked prima facie at the experience of the suffering employee rather than its cause (paras 232 and 343).
+Insurances responding to injury or disease sustained during the insurance period would not, on this basis, cover mesothelioma sustained long afterwards.
+Rix LJ had some compunction about the result because of what he (though not Stanley Burnton LJ) felt was a tension with the commercial purpose of employers liability insurance in the extraordinary context of mesothelioma (para 235).
+Rix LJ would have liked to hold that mesothelioma sufferers sustained sufficient injury on exposure to asbestos to trigger the insurances in force at the date of such exposure, but felt bound by Bolton to conclude the contrary (paras 277 289).
+However, Rix LJ, though not Stanley Burnton LJ, considered that the particular wording of the Independent insurances did not explicitly require the injury or disease to be sustained during the insurance period, and could be read as covering the sustaining of injury at any time arising out of and in the course of employment during the insurance period (paras 300 and 350).
+Rix and Stanley Burnton LJJ differed as to the significance of the ELCIA extension provisions included in the Independent wording, the third MMI wording and the second BAI wording, as quoted in Annex A. Rix LJ thought that the ELCIA required employers to insure on a causation basis (paras 184 and 186) although, since he also expressed the view that an insurance arranged and maintained on a sustained basis could comply with the ELCIA, he may perhaps only have meant required in practice.
+At all events, he held that the ELCIA extension provisions covered liability incurred to the personal representatives of employees on a causation basis, while enabling insurers to recoup themselves so far as possible from the relevant employers in respect of liability they would not otherwise have had to meet (paras 292, 300 and 302).
+Stanley Burnton LJ did not agree that the ELCIA required causation wording (para 342), but considered that it required insurance to be taken out and maintained in respect of ex employees, or at least those who were or had been employed at any time after the coming into force of ELCIA (para 342; and see Rix LJs comments at paras 305 307).
+Rix, Smith and Stanley Burnton LJJ were all agreed that, where provision was made for disease contracted, this could and should be construed as introducing cover on a causation basis, even if or though wording such as injury (or disease) sustained could only respond on an occurrence basis.
+Analysis
+Annex A sets out the insuring clauses.
+Insurers case is, as I have said, rooted most strongly in the word sustain, particularly when it is used by itself, rather than in conjunction with a more ambivalent alternative in the phrase sustained or contracted.
+The natural meaning of the word sustain, taken in isolation and as defined in the Shorter Oxford English Dictionary from an appropriate date (1965, 3rd ed), is, with respect to injury, undergo, experience, have to submit to, or, possibly, to have inflicted upon one, suffer the infliction of.
+But the insurance cover granted (and no doubt required) extended expressly beyond injury by accident to embrace disease.
+This was achieved by less natural conjunctions, such as sustain [any] personal injury by accident or disease or sustain [any] bodily injury or disease.
+Conscious perhaps that the verb sustain does not fit naturally with the concept of disease, some companies (MMI in its third wording and BAI in its first and second wordings) introduced the different verb contracted in the formulations sustained or contracted or injury sustained or disease contracted.
+This use of contracted with respect to disease is considerably more natural, but is clearly open to an interpretation that it looks back to the initiating or causative factor of the disease, and (whatever the answer on that point) highlights a question whether any substantial difference exists in this connection between such wordings and other wordings referring more awkwardly to the sustaining of personal injury by disease or the sustaining simply of disease.
+To resolve these questions 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 broadly.
+As Lord Mustill observed in Charter Reinsurance Co Ltd v Fagan [1977] AC 313, 384, all such words must be set in the landscape of the instrument as a whole and, at p 381, any instinctive response to their meaning must be verified by studying the other terms of the contract, placed in the context of the factual and commercial background of the transaction.
+The present case has given rise to considerable argument about what constitutes and is admissible as part of the commercial background to the insurances, which may shape their meaning.
+But in my opinion, considerable insight into the scope, purpose and proper interpretation of each of these insurances is to be gained from a study of its language, read in its entirety.
+So, for the moment, I concentrate on the assistance to be gained in that connection.
+A first point, made very clearly below by Rix LJ (para 263), is that the wordings on their face require the course of employment to be contemporaneous with the sustaining of injury.
+This leaves open what is meant either by sustaining or by injury.
+Rix LJ thought that the Independent wording could be understood differently in effect, as if it had expressly read: If any person who is under a contract of service or apprenticeship with the Insured shall at any time sustain bodily injury or disease arising out of and in the course of his employment by the Insured during the policy period in connection with the Contract specified or type of work described in the Schedule .
+That interpretation assumes that sustain in this context equates with the occurrence, rather than causation, of the injury or disease, and only arises for consideration if that assumption is correct.
+A second point is that the insurance wordings demonstrate a close link between the actual employment undertaken during each insurance period and the premium agreed to be payable for the risks undertaken by insurers in respect of that period.
+Premium is linked expressly to actual wages, salaries and earnings during the insurance period under the Excess policies, the first MMI wording and the BAI policies.
+The second and third MMI wordings contemplate that premium may be linked to wages, salaries and earnings, and, to the extent that any inference regarding the general nature and scope of cover under these standard wordings can be drawn from such a link, it must be capable of being drawn whether or not premium was actually so linked in any particular case.
+As to the Contractors Combined Policy issued by the Independent, it is a probable inference that the estimates which were provided and were to be updated will have included, in respect of the employers liability cover in section 1, wages, salaries and other earnings paid.
+Finally, the Independent cover is linked to the actual contract or work which the employer is undertaking during the insurance period.
+These links are in my view significant.
+True, premium may sometimes be calculated on a rough and ready basis.
+Minor discrepancies between the premium calculation and the risk may be understandable: see e.g. Ellerbeck Collieries, Ld v Cornhill Insurance Co [1932] 1 KB 401, 418, per Greer LJ (who pointed out that any such discrepancy there was more apparent than real, since workmen not earning wages because off work would not actually be at risk of any fresh accident, even though they would remain susceptible to certification for disablement).
+Here the position is quite different.
+Great care is taken in all the policies to tie premium to the actual employment undertaken during the insurance period, and in the case of the Excess, Independent and MMI policies to tie cover to a business, contract or activities described in the schedule.
+The natural expectation is that premium is measured by reference to actual employment or work during the insurance period because it is the risks attaching to such employment or work which are being undertaken by insurers.
+At the very least, the drawing of this link makes improbable the contention advanced by some of the insurers that the present insurances were apt to pick up liabilities emerging during the insurance period which could be attributable to employment and activities undertaken and negligent conduct committed at times long past.
+The number of employees, their employment activities and the risks involved at those times could be very different.
+The significance which attaches to the employment current during the insurance period is underlined by legal and practitioner texts.
+As long ago as 1912, MacGillivray on Insurance (1st ed), pp 966 wrote: The nature and scope of the employers business must be clearly defined in the insurance policy, and workmen employed outside the scope of the assureds business as described in the policy will not be covered In the section on Employers Liability Insurance in Stone & Coxs Accident, Fire and Marine Year Book (1957), pp 688 689, the authors stressed the importance of identifying any special hazards, such as signs of careless management or lack of control or careless workmen, and observed: The surveying of Employers Liability risks has probably become more general than formerly.
+Apart from the question of the possibilities of accident, there is now the serious question of disability due to disease and in particular the disease known as pneumoconiosis.
+In 1974 MMI produced a Guide to Insurance Officers in Local Government, which it said that it would like to see on the desk of every insurance officer for ready reference at any time; this, after noting that employers liability was almost invariably dealt with by a separate policy and that its importance had been increased by the ELCIA, went on: "7.
+Premiums are usually based on wages and salaries this is not only a convenient yardstick but is logical since loss of earnings usually represents a substantial part of claims.
+Rates of premiums vary according to the nature of the work of the labour force, and the claims experience. 8.
+A feature of employers liability claims is the length of time which often elapses between the date of the accident and the final settlement, and the cost of servicing claims tends to be high.
+Injury caused at work during the period of insurance even though it may not be diagnosed till years afterwards can be a liability under the policy." I note in parenthesis that 1974 was the year in which MMI changed from a pure sustain form of wording to a form covering bodily injury or disease suffered, when sustained or contracted during the currency of the policy.
+Yet there is no suggestion in the Guide of any change in substance.
+It is in this light improbable that the present insurances can or should be read as offering cover in respect of ancient, as opposed to current, employment and activities.
+But there is a third point.
+If insurances in the present form only address risks arising from employment during the insurance period, then, on insurers case, there is a potential gap in cover as regards employers breaches of duty towards employees in one period which only lead to injury or disease in another later period.
+If the employment relationship spans both insurance periods and the employer remains insured with the same insurers in both periods, there may be no problem.
+The employee is employed at all relevant times and the insurance may be viewed as a single continuing contract.
+The policy wordings set out in Annex A, with their references to insurance during the period of insurance or during any subsequent renewal period, would support the latter view.
+But, even in the days of more stable long term employment and insurance relationships, employees could and would move employment or retire, or employers would cease business, or change insurers.
+On the basis that the insurances only cover risks arising from employment during the insurance period, there would be no cover unless the liability arose from and in the course of and involved injury or disease during the currency of the same employment and the same insurance (including any renewal).
+Fourthly, on insurers case, employers would as a result be vulnerable to any decision by insurers not to renew; and such a decision might arise from the simple performance by employers of their common law duty to disclose past negligence to insurers upon any renewal.
+Employers who discovered or came to appreciate that they had been negligent in the course of past activities in respects that had not yet led to any manifest disease (e.g. by exposing their employees to asbestos) would have such a duty.
+Insurers could then, on their own case, simply refuse any renewal or further cover.
+Employers could then have to disclose that refusal also to any further insurers to whom they made a proposal for cover.
+One response made by insurers to such problems is that they would not arise in the large bulk of cases.
+That is no doubt true.
+Most employers liability cases involve short tail claims: typically, an accident involving injury.
+It is not surprising if the language of the insurances fits more easily with situations in which cause and effect coincide in time.
+But, by the same token, this does not mean that the underlying risk being assumed was in either partys mind limited to circumstances in which a cause gave rise to an effect during one and the same insurance period.
+Rix LJ, in accepting that cover depended upon injury being sustained in the sense of experienced during the insurance period, was influenced by the thought that this was not an absurd or meaningless interpretation.
+The insurance could operate entirely successfully in some 99% of cases (para 235).
+In the light of this Courts recent decision in Rainy Sky SA v Kookmin Bank [2011] UKSC 50, [2011] 1 WLR 2900, para 30, this, in my view, gives too little weight to the implications of the rival interpretations and to the principle that where a term of a contract is open to more than one interpretation, it is generally appropriate to adopt the interpretation which is most consistent with business common sense.
+The 1% of cases in which there might be no cover could not be regarded as insignificant.
+Well before 1948, there was general awareness of the existence of long tail diseases which would only develop and manifest themselves after considerable periods of years (see para 12 above; and see also Cartledge v E Jopling & Sons Ltd [1963] AC 758).
+The connection between asbestos exposure and mesothelioma became generally known in the mid 1960s, following the publication in 1965 of Newhouse and Thompsons report on Mesothelioma of pleura and peritoneum following exposure to asbestos in the London area and a Sunday Times article.
+Yet on insurers case, the present insurances would not cover any situation where, after the termination of employment or the expiry of an insurance, injury or disease developed from an employers breach of duty to a relevant employee during an insurance period.
+A fifth point concerns the way in which the policies deal with the issue of extra territorial scope.
+The first Excess wording stands apart from the others in its treatment of that issue.
+Cover only exists in respect of any employee in the employers service who shall sustain any personal injury by accident or disease while engaged in the service of the employer in Great Britain, Northern Ireland, the Isle of Man or Channel Islands, in work forming part of the process in the employers business.
+As soon as one postulates a delay in time between the causation and experiencing of a disease, it becomes apparent that this wording could operate to very curious effect if sustain looks to the latter rather than the former.
+A disease (e.g. a cancer) experienced during employment could be covered although caused by pre employment exposure, while a disease caused by employment would not be covered if only experienced while working abroad.
+The natural inference to draw from the references to being engaged in the employers service and in work forming part of the employers business process is that it was envisaged that the accident or disease would and should arise out of such service and work, rather than merely occur during it.
+That points to an underlying focus on causation, even if the assumption was that in the majority of cases causation and experiencing of any injury by accident or disease would coincide.
+As to the other policies, at the very least, the way they deal with territorial issues throws doubt on any proposition that their wordings are so carefully or well chosen that a court should be careful to stick literally to whatever might be perceived as their natural meaning.
+They address territorial scope by specific exclusions, but the cover and the exclusions use different language.
+Thus, although the second and third Excess wordings cover liability to employees who sustain personal injury by accident or disease, the territorial exclusion is in respect only of accidents occurring outside Great Britain, etc, leaving it unclear how disease, whether caused or developing outside Great Britain, should be dealt with.
+The Independent wording also covers liability to employees who sustain bodily injury or disease, while the territorial exclusion is for injury, illness, loss or damage caused elsewhere than in Great Britain, etc.
+While the contrast in language is capable of lending some support to a view that sustain looks to experiencing, rather than to causation, an alternative possibility is that the two words were understood as having the same effect and that the cover was understood as focused on causation.
+The language of this exclusion thus cuts both ways, as Rix LJ recognised (para 297).
+A similar position applies to the contrast between injury or disease sustained and injury or disease caused outside Great Britain, etc. under the first two MMI wordings.
+Under the third wording, the language of the cover and the exclusion have been deliberately matched.
+Under the BAI wordings, however, there is an incongruity between cover for injury sustained or disease contracted and the exclusion in respect of liability for accidents . arising outside the United Kingdom.
+Again, this leaves the position in respect of disease unclear, and the difference between injury sustained and accidents arising can be read either as deliberate or as suggesting that no significance was attached to the difference or that the real concern was with causation.
+The history and Workmens Compensation Acts
+Much attention was, both below and before the Supreme Court, paid to the development of employees rights to compensation in respect of personal injury and disease, at common law and under the scheme of the Workmens Compensation Acts (WCAs).
+The WCAs were in force from 1897 until replaced in 1948 under the National Insurance (Industrial Injuries) Act 1946.
+The history and a number of the decisions under the WCAs were examined by Rix LJ in paras 126 to 165 of his judgment.
+He concluded that such an examination yields in the present context not a lot.
+To a considerable extent, I agree and I shall not repeat the whole exercise, but identify some potentially relevant aspects.
+Etymologically, some of the language presently in issue can be traced back to statutory language found in the Employers Liability Act 1880 and the WCA 1897.
+The 1880 Act modified the common law doctrine of common employment, by entitling employees to recover common law compensation for injury caused by specified matters for which employers were responsible, provided that they gave notice, within six weeks of sustaining the injury of its cause and the date at which it was sustained.
+The 1897 Act, applying to personal injury by accident arising out of and in the course of employment, also required notice to be given of the accident as soon as it occurred, stating the cause of the injury and the date at which it was sustained.
+These Acts therefore distinguished the causation and the sustaining of an injury, but not in any presently relevant context.
+Further, any reference to sustaining disappeared from the Workmens Compensation scheme in the 1906 Act, which amended the scheme to require a notice stating the cause of the injury and the date at which the accident happened.
+The 1906 WCA also expressly extended the scheme to cover certain diseases specified in section 8.
+In that context, it provided that, where a workman was certified as disabled or suspended from employment or died due to a disease and the disease is due to the nature of any employment in which the workman was employed at any time within the twelve months previous the date of the disablement or suspension, whether under one or more employers, then he or his dependants shall be entitled to compensation under this Act as if the disease or such suspension . were a personal injury by accident arising out of and in the course of that employment .
+Section 8(a) provided: The disablement or suspension shall be treated as the happening of the accident.
+Under section 8(c), the compensation was recoverable from the employer last employing the employee within the previous twelve months, providing the employee furnished that employer with particulars of all his other employers in the employment to the nature of which the disease was due.
+It was not necessary to prove that the disease actually arose from the last employment, merely to prove that the relevant employment gave rise to a risk of such a disease: Blatchford v Staddon and Founds [1927] AC 461.
+The 1906 Act may be regarded in this respect as involving an early statutory instance of the kind of liability recognised in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32 and Barker v Corus UK Ltd [2006] UKHL 20, [2006] 2 AC 572.
+However, failing such particulars, the last employer could excuse himself upon proving that the disease was not contracted whilst the workman was in his employment (section 8(c)(i)).
+The last employer might also join any other employer (within the last twelve months) and it was provided that upon proof that the disease was in fact contracted whilst the workman was in the employment of that other employer, that other employer shall be the employer from whom the compensation is to be recoverable (section 8(c)(ii)).
+Finally, section 8(c)(iii) provided that: if the disease is of such a nature as to be contracted by a gradual process, any other employer within the last twelve months was liable to make such contributions as might be agreed or determined by arbitration under the Act.
+Under this scheme, therefore, compensation for disease was initially based upon the nature of the employment and its potential for causing, rather than upon proof that it caused, such a disease.
+The paternal benevolence of the Legislature (as Visc Sumner put it in Blatchford: p 469) is well known, and if the price of that benevolence is paid by the last employer, who thus has to bear others burdens, that is nothing new in this kind of legislation.
+However, the last relevant employer could seek, in specified circumstances, to avoid or to pass on to another employer responsibility by proof that the disease was not actually contracted in his employment.
+Alternatively, in the case of a disease of such a nature as to be contracted by a gradual process, all relevant employers within the last twelve months would be liable to contribute.
+The scheme was, as I see it, concerned with either the risk of or actual causation, and in its use of the word contracted it appears to me to have been directing attention to the causation, rather than the mere experiencing or manifestation, of disease.
+The WCA scheme was the subject of further amendment by the 1925 Act.
+Section 43 superseded section 8 of the 1906 Act as regards scheduled diseases, while section 47 made specific provision for the introduction of a parallel scheme covering silicosis.
+Effect was given to this by inter alia the Metal Grinding Industries (Silicosis) Scheme which came into force in July 1927, making provision for obtaining compensation from the last employer within the previous three years, and giving such employer rights to look to other such employers within the last five years.
+An insurance covering employers liability in this connection was considered in Smith & Son v Eagle Star (1933) 47 Ll.
+L.R. 88, (1934) 48 Ll.
+L.R. 67.
+Mr Hill had been employed in processes giving rise to silicosis for some 20 years.
+For the last two of these years, from 31 March 1928 to 16 June 1930, he worked for Smith & Son.
+From 30 June 1927 to 17 June 1930, Smith & Son had an insurance against WCA liability in respect of any personal injury or disease which at any time during the continuance of this policy shall be sustained or contracted by any workmen .
+The policy was expressly extended to cover any liability in connection with any claim made by employees in respect of silicosis, and the decision of the Court of Appeal rested on this ground.
+But Scrutton LJ also examined the main policy language, and in particular what was meant by contracted.
+He noted that there has been a good deal of discussion in the Courts about a disease which is gradually contracted commencing at some stage and through the process going on increasing the disease until at last it results in total disablement (p 70), and concluded that the word was not to be read as first contracted, but in the sense of influenced or increased until it ultimately comes to total disablement.
+This, although not directly focusing on the first development of a disease from some earlier cause, suggests a flexible view of the word contracted, directed once again to the employments responsible for causing the disease.
+Confirmation that this was Scrutton LJs view can be found in the earlier case of Ellerbeck Collieries Ltd v Cornhill Insurance Co [1932] 1 KB 401.
+Two workmen who had been in the colliery companys service for many years were on respectively 11 and 12 March 1929 (dates they were actually off work) certified as suffering from miners nystagmus.
+The Cornhill had on 8 March 1929 issued the colliery company with a three month provisional cover note insuring in terms matching the wording of the insuring clause in the first Excess wording (i.e. against liability in respect of any employee who shall sustain any personal injury by accident or disease while engaged in the service of the employer).
+Failing a satisfactory survey, the cover note actually expired on 18 March 1929.
+The first point decided was whether the employees had sustained personal injury by accident or disease during the period of validity of the cover note (8 to 18 March 1929).
+It was held that they did.
+The judgments in the Court of Appeal are of interest for a number of reasons.
+First, both Scrutton LJ (p 408) and Greer LJ (p 417) approached the question of construction on the basis that the policy was intended to protect the employers against their liability to their workmen under the WCAs.
+Scrutton LJ added that it seems to me that the policy was intended to cover the liability of the employers for the results of industrial diseases caused by the employment (p 409).
+His description of the policy, covering in terms any employee sustaining personal injury by accident or disease in service, as intended to cover liability . for the results of diseases caused by the employment fits precisely with the analysis which I consider correct (paragraphs 18 28 above).
+Second, Scrutton LJ went on to refer to the difficulties in saying when an industrial disease, such as miners nystagmus or lead poisoning, begins, and in these circumstances the difficulty for an employee to pick the proper employer to sue.
+He described the way in which Parliament, by what became section 43 of the WCA 1925, had addressed such difficulties by providing a conventional and artificial means for enabling the workman to get compensation, leaving the various employers to fight out their proportion of the liability between themselves (p 409).
+He said that the last employer, liable under the WCA scheme, then claims on the insurance company on the ground that he is liable to make compensation for an injury by disease, and the date of the injury or disablement is by statute and certificate fixed as happening between the dates for which he is provisionally covered (p 411).
+On this basis, and in the light of the House of Lords decision in Blatchford, Scrutton LJ concluded that he was bound to hold that an accident has happened within the period of the provisional cover against the consequences of which the insurance company is bound to indemnify the employer (p 413).
+In short, the conventional and artificial provisions of the WCA defined what constituted an accident and when personal injury by accident or disease was sustained for the purposes of the insurance.
+Greer LJ, more shortly, adopted the same approach (p 418).
+Only Slesser LJ (p 421) expressed a reservation about the possibility that the artificial deeming provisions of section 43(a) of the WCA 1925 might only apply as between employee and employer, and that it might have been necessary to consider separately the date of the sustaining of injury as between the employer and the insurer, had there been any admissible evidence that the two employees had actually contracted the scheduled disease before the granting of the statutory medical certificate.
+Commercial purpose and practice
+Much general evidence was directed or elicited before Burton J in relation to the commercial purpose of the present insurances, and to practice relating to their operation in the years before the present issue arose.
+It was argued that there was, prior to the decision in Bolton, a universal usage of the insurance industry to pay out mesothelioma or similar claims under [employers liability] policies by reference to the date of inhalation/exposure whatever the wording, or an estoppel by convention to like effect.
+Burton J rejected the argument (paras 180 to 201, esp. para 201), for the reasons that, first, there was no evidence relating to years earlier than the 1980s which could be put down to any kind of arguable usage, second, any usage was not certain, not least because of the multiplicity of approaches to or bases for it and, third, it was not binding.
+It was not incorporated into the insurance contracts.
+No issue of estoppel by convention was pursued to the Court of Appeal (Rix LJ, para 24, and Stanley Burnton LJ, paras 332 and 335) and the issue of a universal custom was only pursued by Zurich Insurance Company (Rix LJ, para 24).
+By a multiplicity of approaches to or bases for insurers practice, Burton J was referring to evidence that insurers followed the practice they did in some cases because they believed that their contracts were to be interpreted on a causation/exposure basis, in others because they believed that the aetiology of diseases such as mesothelioma was such that injury was in fact sustained (in the sense of experienced) at the date of inhalation, while yet others may have failed to realise that their historically relevant wordings had been on a different basis to the causation wordings to which they had since switched or may have failed to address their minds to any relevant issue at all in relation to an insured who was usually a longstanding repeat client.
+Rix LJ (para 228) contented himself with agreeing with Burton Js reasoning on this aspect, while Stanley Burnton LJ noted and agreed in particular with Burton Js second reason, relating to the believed aetiology of mesothelioma (para 335).
+Smith LJ, on the other hand, treated the commonly held understanding that diseases such as mesothelioma involved injury at the date of inhalation as part of the factual matrix of all the insurance contracts (paras 322 323), and considered against that background that no difference in meaning should be held to exist between policies using sustained and causation wording, until the time when the two sides of the insurance industry should be considered to have appreciated that some diseases, including mesothelioma, do not occur until many years after exposure to the causative agent (para 327).
+She put that as around the time of the decision in Bolton, after which parties using a sustained wording must be taken to have meant only to cover injuries actually occurring during the policy period (para 327).
+The argument of a binding usage was not pursued before the Supreme Court, rightly so for the reasons given by the judge and the majority in the Court of Appeal.
+Equally, there has been no suggestion of estoppel by convention, along the lines recognised as possible in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] 1 AC 1101, para 47.
+However, on the issues of policy interpretation, Mr Stuart Smith QC for Zurich Insurance, maintained before the Supreme Court an argument that there was a consensus based on market practice, whereby, for one reason or another, such policies would respond to long tail diseases by reference to the date of exposure, and that this could constitute relevant background to their construction.
+Assuming that, short of a binding usage or estoppel by convention, a practice, if known to or shared by the relevant parties, could in some circumstances be relevant background (see e.g. Reardon Smith Line Ltd v Yngvar Hansen Tangen [1976] 1 WLR 989), still, in my opinion the argument fails in the present case.
+It fails in particular in the light of the judges findings, even in relation to policies made in and after the 1980s.
+A practice based on a mistaken understanding, by only some insurers, that the policies operated on a causation basis cannot be relevant background to the interpretation of every policy; on the judges findings other insurers do not appear to have understood that the policies operated on that basis.
+A practice based on a mistaken understanding by others in the market as to when long tail diseases could be said to have been experienced or to involve injury is likewise an unpromising start for construing all policies; if the understanding were good, it would mean that such diseases fell within the policies, even though the policy cover was restricted to injury or disease experienced during the policy period.
+The understanding would not therefore carry any imperative to read a sustained wording as meaning caused.
+Before the Supreme Court, both employers and employees continued to rely upon the evidence given at trial regarding the general purpose of employers liability insurance as part of the background to the interpretation of the present insurances.
+Rix LJ (paras 223 to 235) gave it some weight as such, but Stanley Burnton LJ thought that there was little if any assistance to be gained by reference to the commercial purpose of EL insurance, as this was simply to provide the cover defined in the policy (para 333).
+The Supreme Court was provided with a useful summary of the considerable volume of evidence relied upon in this connection.
+It consisted in general of answers given by insurers, two at least of them with experience going back to the 1940s.
+They were asked (frequently in response to leading though not inadmissible on that score questions in cross examination) about their or others views, understandings or perceptions as to the purpose of the policies, and the way in which these would or should respond, in relation to injuries arising from exposure in the course of activities during the policy period.
+In my judgment, Stanley Burnton LJ was right to reject such evidence as inadmissible.
+The parties cannot be asked what they meant by their contract, and, failing any binding usage, it is equally inadmissible to ask other persons operating in the market to give general evidence as to what they would have understood the parties to have meant by the words used in the context in which they were used.
+The evidence does not seem to have amounted to more than that.
+However, I do not agree with Stanley Burnton LJs suggestion that no useful conclusions can be drawn about the commercial purpose of the policies, save that it was to provide the defined cover.
+In my opinion, relevant conclusions about the general nature and purpose of the individual policies can be drawn in this case, just as they could in the case of the different (and wordier) instrument in issue in In re Sigma Finance Corporation [2009] UKSC 2, [2012] 1 All ER 571 (see especially paras 10, 12 and 37).
+They can be drawn from an overall consideration of the individual insurance wordings, and particularly from the features which tie cover to the employees and activities during the relevant policy period and the five points considered in paragraphs 18 to 28 above.
+Further, if the policies are on any view apt to cover employers liability for long tail diseases which initiate during, but only manifest themselves years after, the original policy period, one may look with scepticism at an interpretation which distinguishes this situation from other situations where a long tail disease is caused but does not strictly begin during the policy period, and only manifests itself years later.
+This is particularly so if a conclusion that the latter diseases fell outside the policy cover meant that they would or might well not fall within any subsequent employers liability policy.
+ELCIA 1969
+Section 1 of the ELCIA provides: 1. (1) Except as otherwise provided by this Act, every employer carrying on any business in Great Britain shall insure, and maintain insurance, under one or more approved policies with an authorised insurer or insurers against liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment in Great Britain in that business, but except in so far as regulations otherwise provide not including injury or disease suffered or contracted outside Great Britain (3) For the purposes of this Act (a) approved policy means a policy of insurance not subject to any conditions or exceptions prohibited for those purposes by regulations. 4. (1) Provision may be made by regulations for securing that certificates of insurance in such form and containing such particulars as may be prescribed by the regulations, are issued by insurers to employers entering into contracts of insurance in accordance with the requirements of this Act . (2) . the employer shall during the currency of the insurance and such further period (if any) as may be provided by regulations (a) comply with any regulations requiring him to display copies of the certificate of insurance for the information of his employees; .
+The only conditions or exceptions ever prohibited were certain exemptions from liability.
+Under section 3, the ELCIA did not however apply to local authority employers, such as most of MMIs insureds.
+Under section 4, provision might be made for certificates of insurance to be issued to employers, and in that event the employer was, obliged during the currency of the insurance and such further period (if any) as may be provided by regulations to comply with any regulations requiring him to display copies of the certificate of insurance for the information of his employees.
+In reaching his conclusions on the ELCIA (para 16 above), Rix LJ engaged in an impressive analysis, to which I would refer (paras 166 to 186).
+The only doubt this leaves is how, if the ELCIA requires a causation wording, an employer could properly insure on a wording which only covered injury sustained in the sense of experienced (see para 186 and paragraph 16 above).
+The scope of the ELCIA is, as Rix LJ indicated, open to three alternative analyses: that it requires cover in respect of (i) all future liability incurred during the insurance period, whenever the negligence or injury, or (ii) liability for all future injury or disease sustained (in the sense of experienced) by employees during the insurance period, whenever the negligence, or (iii) liability for all negligence or breach of statutory duty during the insurance period giving rise to liability as in (ii).
+The retrospectivity of cover involved in (i) and (ii) is unlikely to have been intended.
+The only one of the three possibilities not involving a degree of retrospectivity is (iii).
+A duty on every employer to insure, and maintain, insurance is consistent with a requirement to have the insurance in place during, though to maintain it after, the relevant insurance period.
+The provision, contemplated by section 4, for copies of insurance certificates to be issued by insurers and to be displayed by any employer for the information of his employees during the currency of the insurance and such further period as may be provided by regulations indicates, first, a desire to assure employees of their insurance protection during the relevant insurance period, and, secondly, an awareness that this assurance might need to remain in place after such insurance period; it is therefore suggestive of (iii), rather than (i) or (ii).
+As Rix LJ observed, it is only cover in accordance with (iii) that can give an employee the assurance that any injury or disease suffered as an employee and arising out of and in the course of [his] employment will be covered by insurance, the benefit of which would, if necessary, be available to him at the time under the Third Party (Rights against Insurers) Act 1930.
+An obligation to have a policy in force only at or by the time when injury is actually experienced would leave employees or ex employees at the mercy of compliance with the statute by their employers or ex employers at uncertain future dates.
+It would also leave such employees or ex employees at the mercy of employers who, for whatever reason, ceased to carry on business either in Great Britain or (for example due to insolvency) at all.
+Further, if injury or disease suffered or contracted bears the same meaning as insurers suggest that injury or disease sustained or contracted bears, then an employee, who had the misfortune to succumb to a disease abroad caused by his employment or previous employment in Great Britain, would not be covered (unless regulations intervened to ensure that he was).
+Stanley Burnton LJ thought that any issue as to the nature of the insurance required under ELCIA was resolved by its use of the word sustained, rather than caused.
+He went on to conclude that the ELCIA covered any injury sustained (in the sense of experienced) during a period of insurance, by anyone who was then or had at any previous time been an employee.
+However, that latter conclusion introduces a retrospectivity into the scope of the ELCIA, which, as already indicated, I think unlikely to have been intended.
+The statute could have used the tariff wording of causation instead of sustained.
+But in the statutory language the word sustained is not coupled with a phrase such as during the period of the insurance.
+Even if sustained means experienced in the context of the statute, the statute may require insurance on what is effectively a causation basis; the words sustained by his employees may well mean sustained at any future time by his current employees.
+The key to the meaning of the statutory language seems to me the combination of the phrases arising out of and in the course of their employment in Great Britain and not including injury or disease suffered or contracted outside Great Britain.
+Together, and for reasons given in the last two paragraphs, they indicate a statutory requirement to insure in respect of activities during the course of employment in Great Britain which may in the future give rise in or out of Great Britain to liability to the employees involved in such activities.
+In my judgment, therefore, the conclusion which gives proper effect to the protective purpose of the legislation is that the ELCIA requires insurance on a causation basis.
+The ELCIA extension provision to the Independent and second BAI wordings (see Annex A), as well as a similar extension provision to the MMI policy intended for insureds who were not local authorities, achieved this result expressly in relation to policies written subsequent to the coming into force of the ELCIA, at least for the purpose of ensuring that employees claims were covered by insurance.
+Any other subsequent insurances not containing that extension provision should, if possible, be read as providing the relevant employers cover required by statute.
+This is a powerful tool in the interpretation of such insurances.
+Bolton M.B.C. v Municipal Mutual Insurance Ltd
+The Court of Appeal in the present case was bound by its previous decision in Bolton MBC v Municipal Mutual Insurance Ltd [2006] EWCA Civ 50, [2006] 1 WLR 1492 on public liability policies.
+The majority regarded that case as, in effect, determining the meaning which must be put on the word sustained in the present employers liability policies: see paras 284, per Rix LJ, and 339, per Stanley Burnton LJ, who however also found the logic of Longmore LJs judgment convincing in relation to the latter type of policies.
+Smith LJ on the other hand considered that public liability and employers liability insurances gave rise to different considerations (para 328).
+In my opinion, that is right.
+Employers liability policies are subject to particular terms and considerations, analysed above (particularly in paragraphs 18 28 and, in the case of policies effected after the coming into effect of the ELCIA, paragraphs 41 46).
+These considerations are not or certainly not necessarily applicable to public liability insurances.
+The present case was concerned with employers liability not public liability insurances, and it may well be that not all the relevant facts relating to the latter are before us.
+We certainly have not heard full argument on the proper conclusions which may be drawn regarding the basis of liability or trigger generally applicable under the latter.
+In these circumstances, I would proceed on the basis that we are not bound by Bolton, that this does not involve any view about the correctness or otherwise of Bolton, but only that it is unnecessary to consider what the position generally may be under public liability policies.
+Assuming that, in relation to public liability insurance, the position generally is as stated in Bolton, that does not alter the conclusions which I reach.
+It merely means, in their light, that public liability insurance generally and the present employers liability policies operate on different bases, because of their different backgrounds, terms and purposes.
+Contracted
+There is no difficulty about treating the word contracted as looking to the causation or initiation of a disease, rather than to its development or manifestation.
+In relation to the two BAI wordings and the third MMI wording, this interpretation obtains strong support from the general nature and purpose of the relevant policies, derived from their immediate context and terms and analysed in paragraphs 18 to 28 and 41 above.
+To the limited extent that the WCA background may assist to inform the meaning of later policies, it can be seen overall as a legislative scheme which was concerned with either the risk of or actual causation (para 32 above).
+Even if, in the phrase sustained or contracted or injury sustained or disease contracted, the word sustained is to be understood as meaning experienced, that would reflect no more than the fact that the cause and effect of an injury commonly coincide; I would still unhesitatingly conclude, as did the Court of Appeal, that the word contracted used in conjunction with disease looks to the initiating or causative factor of the disease.
+Sustained
+The majority of the Court of Appeal considered that it was impossible to view policies with pure sustained wordings as operating by reference to the initiating or causative factor of a disease.
+They did so primarily by reference to the wording of the insuring clauses.
+In my view, as indicated in paragraphs 18 19 above, a broader approach is necessary.
+The general nature and purpose of these policies can be derived from their immediate context and terms, analysed in paragraphs 18 to 28 and 41 above.
+It is true, as Rix LJ said, that phrases such as injury sustained by an employee or an employee who shall sustain injury, in either case by accident or disease, appear to address the impact of the accident or disease on the employee.
+But the underlying focus of the insurance cover is on the employees and activities current during the insurance period.
+The cover would be potentially incomplete, and employers would be potentially exposed to uninsured risks, were sustained to be understood as meaning developed or manifested.
+This is so, even before the ELCIA came into force.
+Any policies written subsequent to the coming into force of the ELCIA either afford cover consistent with the Acts requirements by virtue of an ELCIA extension provision, or, to the extent that this is not the case, should be construed, if at all possible, as meeting employers obligations under that Act.
+In my view, such obligations included taking out insurance in respect of negligence during the insurance period affecting an employee in a manner giving rise to bodily injury or disease then or at any subsequent time.
+On this basis, I consider that, although the word sustained may initially appear to refer to the development or manifestation of such an injury or disease as it impacts employees, the only approach, consistent with the nature and underlying purpose of these insurances both before and after the ELCIA, is one which looks to the initiation or causation of the accident or disease which injured the employee.
+The 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 subsequently.
+Disease sustained, read as meaning experienced or incurred
+Rix LJ was attracted by the submission that, even if sustaining disease meant experiencing or incurring it during the period of the insurance, long tail diseases could be said to have been sustained during the period of insurance in this sense.
+He asked rhetorically whether an employee who had inhaled asbestos had not sustained an injury in the form of an assault of the fibres, as a result of which he was worse off through having dangerous fibres in his lungs (para 280).
+He noted that, although there was at most trivial injury or damage, and nothing that could create actionable damage, nevertheless, when mesothelioma develops, it is the risk of mesothelioma created by the exposure which is the damage (see .
+Barker ) and it is the exposure, and the risk of mesothelioma, that is the damage (para 281).
+He only felt bound to reject this analysis (para 284) because of the Court of Appeals previous decision in Bolton.
+It may be that in the case of some long tail diseases, the victim can be said to have incurred or caught them at the same time as the initial ingestion or scratch giving rise to them.
+But it is clear that this is not the position with inhalation of asbestos in relation to either asbestosis or mesothelioma.
+No cause of action arises from exposure or inhalation alone: Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39, [2008] 1 AC 281.
+Further, for reasons which I develop in paragraphs 64 65 below, the exposure and risk are not by themselves damage in any sense known to the law.
+Damage is only incurred when mesothelioma develops.
+Only when it develops does the victim incur damage which is legally relevant, and even then this is not because any physical link necessarily exists or can be proved between the mesothelioma and the original exposure.
+The rule in Fairchild and Barker imposes liability for the mesothelioma upon persons who have exposed the victim to asbestos, and so created a risk of mesothelioma.
+But it is not a rule which, even as between employers and employees, deems the latter to have suffered injury or disease at the time of any exposure.
+And, even if it were viewed simply as a rule imposing retrospective liability on employers for exposing their employees to the risk of mesothelioma, the insurance policies do not insure risks of physical injury or disease, but only actual injury or disease.
+The application of the insurances in respect of mesothelioma
+At the outset of these appeals, the application of the insurances in respect of mesothelioma suffered by employees exposed to asbestos during their employment by an insured employer did not appear controversial.
+This changed after a question from Lord Phillips on day 4 of the hearing, followed by a later written note.
+All the same, the transcript pages containing any argument on the point numbered only 40 out of a total of some 1140.
+So far as Mr Edelman made any submissions on this point, in his written case or orally, they were to this effect: if the correct analysis of the Houses decision in Fairchild be that an employer who exposes an employee to asbestos is deemed to have caused that employees mesothelioma, then employers liability insurances held by the employer on a causation basis should respond; but, if the policies do not respond on a causation basis, there is no justification for treating the employee as having suffered injury or a disease during their currency, because employers cannot prove that any particular inhalation caused any injury.
+This led to some discussion, particularly with counsel for employers and employees, of the points which I have already addressed in paragraphs 50 52 above.
+The point now expressed forcefully by Lord Phillips in his judgment is that exposure to the risk of mesothelioma is the correct analysis of the Fairchild principle, at least as subsequently interpreted, and that such exposure can satisfy neither the concept of injury nor the concept of causation for the purposes of the policies.
+If that is right, then the present insurance claims must all fail.
+Indeed, the great bulk of insurance claims settled by other insurers (e.g. former tariff insurers) or by the present insurers under the causation policies they have issued in more recent years (paragraph 10 above) should presumably also have failed.
+The only exception may be the case of an employee exposed to asbestos in only one employment by an employer holding insurance throughout with only one insurer.
+In such a case it might (perhaps) be said that, whichever particular inhalation(s) may have been responsible for the employees mesothelioma, it (or they) must have been insured.
+Even then, the logic of the Supreme Courts reasoning in Fairchild and Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10, [2011] 2 AC 229 might lead to the conclusion that causation was still unprovable in the light of the possibilities of environmental or idiopathic causation of mesothelioma.
+Rules regarding causation are created by the courts for the purpose of determining when liability arises in particular contexts.
+Normally, they reflect a common sense understanding of what is ordinarily understood when we speak of a cause in a particular context.
+In their leading work on Causation in the law (Clarendon Press, 2nd ed 1985) Professor H. L. A. Hart and Tony Honor examined both this understanding and its relationship to legal decision making.
+Generally, but not always, a cause must involve an act or omission that was at least a sine qua non of the injury in respect of which responsibility attaches (the but for test).
+But sometimes two separate acts or omissions may each independently have been sufficient to give rise to that injury (as when A and B simultaneously, but independently shoot C dead), and then we may as a matter of legal policy accept a weaker causal relationship for the imposition of responsibility: see p lxv in the preface to and p 123 of the 2nd edition.
+Other cases where causal requirements have been relaxed include Bonnington Castings Ltd v Wardlaw [1956] AC 613; there, materially contributing to part of an accumulation of dust which cumulatively led to pneumoconiosis gave rise to liability for the whole disease (although it has been suggested that some apportionment might now be possible in fact and law).
+Another relevant authority is McGhee v National Coal Board [1973] 1 WLR 1; there, liability for dermatitis was held to exist because the defendant had materially contributed to part of the claimants exposure to dirt, any part of which might, independently of any other, have given rise to the abrasion leading to the claimants dermatitis.
+It was recognised that this involved liability based on materially contributing to the risk of the injury.
+Lord Reid at p.4G H described the result as reached taking a broader view of causation, and Lord Wilberforce at p 5G viewed it as involving a conclusion as to the causal connection that had to exist between the default and the disease complained of.
+The contrary view (viz, that proof of risk was insufficient without proof that the risk caused or materially contributed to the disease) had a logic which Lord Wilberforce acknowledged, but rejected for policy and evidential reasons set out at p.6C F.
+In Fairchild, McGhee was seen as a precursor of the decision there reached.
+Putting aside the possibility of an idiopathic or environmental cause, a Fairchild type situation exists when (a) there are two separate potential causes exposing the claimant to the same risk, one involving an act or omission by the defendant, (b) either one of which causes would have been sufficient to give rise to the injury, and (c) one of which did so, but (d) neither of which can as a matter of probability be shown to have done so.
+Taking into account the later decisions in Barker v Corus and Sienkiewicz, the Fairchild principle extends to any case where there has been an act or omission exposing a person to asbestos, which exposure may have caused the mesothelioma, but which cannot be shown as a matter of probability to have done so.
+On that basis, the House held in Barker v Corus that each or any persons liability should only be proportionate to the extent that he had exposed another to the risk of mesothelioma.
+Parliament by the Compensation Act 2006 reversed that conclusion and made each such person liable in respect of the whole of the damage caused by the mesothelioma.
+Lord Phillips in his judgment addresses the basis of Fairchild in the light of Barker v Corus, the 2006 Act and Sienkiewicz.
+He accepts that, if Fairchild is now correctly to be understood as a special rule deeming employers who have exposed an employee to asbestos to have caused any subsequently suffered mesothelioma, then the insurance policies should apply (para 109).
+But he concludes that Fairchild must be understood as creating liability not for the disease, but for the creation of the risk of causing the disease.
+It follows in his view that employers and employees gain no assistance from the special rule in asserting that mesothelioma suffered by any person was caused or initiated in any particular policy period.
+On this basis, even though the insurances respond to injuries caused or initiated during their periods, the employers and employees fail for want of proof.
+It is not fruitful to repeat the exercise undertaken in Barker v Corus of examining in detail the significance of the speeches in Fairchild.
+The House was not agreed about this in Barker, but the majority speeches of Lords Hoffmann, Scott and Walker were at pains to reject any analysis of Fairchild as proceeding upon a fiction that each exposure had caused or materially contributed to the disease: see paras 31, 61 and 104; they each also referred to the liability created by Fairchild as being not for causing the disease, but for materially increasing the risk of the mesothelioma which was in fact suffered: paras 31, 36 and 40, 53, 61 and 113.
+Lord Rodger (dissenting) perceived the majority to be misinterpreting Fairchild by failing to acknowledge that it was based on an equation of materially increasing risk with materially contributing to causation, an equation which he thought had been accepted as sufficient causation in Bonnington Castings Ltd v Wardlaw [1956] AC 613 and McGhee v National Coal Board [1973] 1 WLR 1.
+It is on the apparently bright line distinction said to have been drawn by the majority in Barker between materially contributing to increasing the risk of, and causing, a disease that Lord Phillips now founds his judgment in these appeals.
+The Compensation Act 2006 applies where a person who has exposed someone to asbestos is liable in tort in connection with damage caused to the latter by mesothelioma whether by reason of having materially increased a risk or for any other reason (section 3(1)(d)).
+It makes the former person liable in respect of the whole of the damage (section 3(2)(a)).
+On its face, the Act assumes rather than creates the liability, and only alters the measure of recovery.
+That was the view expressed in Sienkiewicz by Lords Phillips, Rodger and Brown (paras 70, 131 and 183).
+However, on further analysis, the distinction identified in paragraphs 58 59 above proves more elusive.
+Even in Barker itself, Lord Walker described exposing the employee to the risk of mesothelioma as being equated with causing his injury and the result as an explicit variation of the ordinary requirement as to causation (para 104), and spoke of the rule as one by which exposure to the risk of injury is equated with legal responsibility for that injury (para 109).
+However, it is conceivable that he meant that the ordinary requirement of causation of the disease was entirely replaced by another liability creating rule.
+It is in the later authority of Sienkiewicz that the difficulty of drawing any clear cut distinction between creating a risk and causation of the disease becomes most apparent.
+Lord Phillips there stated that the rule in its current form was that the person responsible for the exposure and thus creating a material increase in risk of the victim contracting the disease will be held to be jointly and severally liable for causing the disease (para 1).
+Later, he said that the law was presently contained in Fairchild and Barker which had developed the common law by equating materially increasing the risk with contributing to the cause in specified and limited circumstances (para 70).
+That was the analysis of Fairchild advanced by Lord Rodger in Barker v Corus (paras 73 and 83) but rejected there by the majority.
+Lord Brown in Sienkiewicz spoke of a more relaxed approach to causation (para 178) and flexibility in the approach to causation (para 187).
+I referred to Fairchild and Barker as involving a special rule of causation (para 188), and Lord Kerr referred to them as involving a modification of the previously applicable legal rules in relation to the causation element in employers liability claims (para 196) and to adjustments in the burden of proof (paras 198 and 200).
+Lord Rodger was, on the other hand, loyal to the majority view in Barker by referring to liability as based on materially increas[ing] the risk (para 113), and Lord Dyson was cautious in speaking of materially increasing the risk of contracting the disease as sufficient to satisfy the causal requirements for liability (para 207).
+Lord Phillips has in para 123 set out a passage from an extra judicial commentary written by Lord Hoffmann in Perspectives on Causation (2011), p 8.
+In it, Lord Hoffmann describes the two ways in which the changes introduced by Fairchild and Barker could be characterised, one as changing the causal requirements for an action for damages for mesothelioma ; all that is necessary is to prove that the risk has been increased and that the specific exposure may have provided the actual agent; the other as creat[ing], exceptionally, a cause of action for the increased risk of mesothelioma, rather than for the disease itself.
+Lord Hoffmann notes that the House in Barker (Lord Rodger dissenting) adopted the second explanation of what had happened in Fairchild.
+But in the next sentence, not quoted by Lord Phillips, Lord Hoffmann went on: Parliament almost immediately reversed this decision by a statute giving effect to the first explanation, which had been advocated by Lord Rodger in his dissenting speech.
+Lord Hoffmanns extra judicial (or judicial) words cannot by themselves alter the true effect of a statute, but his comments do again show that the suggested distinction is more fluid than might at first appear.
+It is relevant to look more closely at what Barker decides.
+In Barker, Lord Hoffmann spoke of Fairchild as applying an exceptional and less demanding test for the necessary causal link between the defendants conduct and the damage (para 1) and of the requirement of a sufficient causal link between the defendants conduct and the claimants injury (para 17).
+In his note in Perspectives on Causation, he picked up this language with references to the causal requirements of the relevant rule and to the issues in cases of mesothelioma and analogous situations as involving the causal requirements for an action for damages for mesothelioma.
+Lady Hale in Barker also viewed the common law rules governing the measure of recovery as closely linked to the common laws approach to causation, and said that there was no reason in principle why the former rules should not be modified as the latter approach is courageously developed to meet new situations (para 122).
+In paras 123 and 124, she made clear that in her view the issue in Barker could be seen as arising from the expanded perceptions or developed concept of causation which the law had accepted.
+These citations all suggest that it is both possible and appropriate to characterise the position achieved by the common law after Barker v Corus as one concerned with the issue of the causal requirements or causal link, as between the defendants conduct and the disease, which the common law requires in order for there to be an action for mesothelioma.
+But analysis of the rule arrived at after Fairchild and Barker justifies further propositions.
+Despite the apparent clarity of the suggested distinction between liability for a risk and for a disease, no cause of action at all exists unless and until mesothelioma actually develops.
+Neither the exposure to asbestos nor the risk that this may one day lead to mesothelioma or some other disease is by itself an injury giving rise to any cause of action: see Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39, [2008] 1 AC 281; the House there decided that not even the emergence of pleural plaques marking the past exposure to asbestos constituted injury for the purpose of giving a cause of action.
+In order to fall within the principle in Fairchild and Barker, the development of mesothelioma is a pre condition: see Barker, per Lord Hoffmann (para 48) and Lord Scott (para 53).
+Lady Hale went further, stressing that she in fact agreed with Lord Rodgers view that the damage which is the gist of these actions is the mesothelioma and its physical and financial consequences.
+It is not the risk of contracting mesothelioma (para 120).
+In reality, it is impossible, or at least inaccurate, to speak of the cause of action recognised in Fairchild and Barker as being simply for the risk created by exposing someone to asbestos.
+If it were simply for that risk, then the risk would be the injury; damages would be recoverable for every exposure, without proof by the claimant of any (other) injury at all.
+That is emphatically not the law: see Rothwell and the statements in Barker itself, cited above.
+The cause of action exists because the defendant has previously exposed the victim to asbestos, because that exposure may have led to the mesothelioma, not because it did, and because mesothelioma has been suffered by the victim.
+As to the exposure, all that can be said (leaving aside the remote possibility that mesothelioma may develop idiopathically) is that some exposure to asbestos by someone, something or some event led to the mesothelioma.
+In the present state of scientific knowledge and understanding, there is nothing that enables one to know or suggest that the risk to which the defendant exposed the victim actually materialised.
+What materialised was at most a risk of the same kind to which someone, who may or may not have been the defendant, or something or some event had exposed the victim.
+The actual development of mesothelioma is an essential element of the cause of action.
+In ordinary language, the cause of action is for or in respect of the mesothelioma, and in ordinary language a defendant who exposes a victim of mesothelioma to asbestos is, under the rule in Fairchild and Barker, held responsible for and in respect of both that exposure and the mesothelioma.
+This legal responsibility may be described in various ways.
+For reasons already indicated, it is over simple to describe it as being for the risk.
+Another way is to view a defendant responsible under the rule as an insurer, but that too is hardly a natural description of a liability which is firmly based on traditional conceptions of tort liability as rooted in fault.
+A third way is to view it as responsibility for the mesothelioma, based on a weak or broad view of the causal requirements or causal link appropriate in the particular context to ground liability for the mesothelioma.
+This third way is entirely natural.
+It was adopted by Lords Reid and Wilberforce in McGhee, by Lord Hoffmann, Lady Hale and (possibly) Lord Walker in Barker and by Lord Hoffmann in his extra judicial commentary.
+It seems to have received the perhaps instinctive endorsement of a number of members of this Court, including myself, in Sienkiewicz.
+Ultimately, there is no magic about concepts such as causation or causal requirements, wherever they appear.
+They have the meanings assigned to them and understood in ordinary usage in their context.
+A logician might disagree with a reference to causation or a causal link in a particular context, but that is not the test of meaning: see Lord Wilberforces words in McGhee, p 6C F (cited in para 56 above).
+The present appeals concern the meanings we assign to the concept of causation, first in the context of considering employers liability to their employees and then in considering the scope of employers insurance cover with respect to such liability.
+It is instructive in this connection to look more closely at the Compensation Act 2006.
+Section 3(3) states that section 3(2) does not prevent (a) one responsible person from claiming a contribution from another, or (b) a finding of contributory negligence.
+Section 3(4) goes on to provide that [I]n determining the extent of contributions of different responsible persons in accordance with subsection (3)(a), a court shall have regard to the relative lengths of the periods of exposure for which each was responsible .
+Section 3(3) necessarily relates to the legal bases for claiming contribution or asserting contributory negligence, which are to be found in, respectively, the Civil Liability (Contribution) Act 1978 and the Law Reform (Contributory Negligence) Act 1945.
+The 1978 Act addresses the situation where two or more persons are liable in respect of the same damage (section 1(1)), while section 2(1) provides for contribution in such situations to be such as may be found by the court to be just and equitable having regard to the extent of that persons responsibility for the damage in question.
+Although under section 3(4) of the 2006 Act, the court must have regard to the relative lengths of the exposure for which each was responsible, the same damage which is a pre condition to the application of the 1978 Act must be the mesothelioma.
+It cannot be the risk created by the person by or from whom contribution is sought, because each person and exposure creates a separate risk, and no one person or exposure creates the total risk resulting from all exposures.
+The 2006 Act, by its reference to the 1978 Act, thus assumes that every person, who has exposed to asbestos a victim who later experiences mesothelioma, incurs responsibility for the mesothelioma.
+That language again fits an analysis whereby the rule in Fairchild and Barker identifies the appropriate weak or broad causal link between the exposure and the mesothelioma.
+A similar position applies under the 1945 Act.
+Under section 1(1), that Act applies [w]here any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons.
+In that event, the damages recoverable are to be reduced to such extent as the court thinks just and equitable having regard to the claimants share in the responsibility for the damage.
+The application of this section, as contemplated by the 2006 Act, is only possible on the basis that a mesothelioma sufferer may be said to have suffered the mesothelioma partly as the result . of the fault of anyone who has exposed him to asbestos. In other words, the rule in Fairchild and Barker must have been viewed by the drafters in my opinion entirely understandably as establishing a causal link, between the exposure and the mesothelioma, sufficient for it to be said that the mesothelioma was the result of each (and every) exposure.
+A similar view is also implicit in the provisions of the Act drafted on the basis that insurers who would commonly of course be employers liability insurers would be among the persons by or for whose benefit or against whom contribution would be sought in cases of multiple responsible persons: see section 3(7)(b) and (10)(a) of the 2006 Act.
+Those provisions necessarily assume that employers liability insurances, written generally on a causation basis, would respond to Fairchild/Barker type liability incurred by employers.
+Ultimately, the present appeals raise the questions how the present employers liability insurance policies respond as a matter of construction in circumstances within the rule in Fairchild and Barker.
+Where two contracts are linked, the law will try to read them consistently with each other.
+This is so with language in a bill of lading, incorporated from a charterparty: The Njegos [1936] P 90.
+A similar approach applies to language in a reinsurance incorporated from the insurance: Forsikringsaktieselskapet Vesta v Butcher [1989] AC 852 and Groupama Navigation et Transports v Catatumbo CA Seguros [2000] 2 Lloyds Reports 350, even though there is no guarantee that a reinsurance will in every possible circumstance that may develop pick up every liability that may be held to exist under an insurance: see Wasa International Insurance Co Ltd v Lexington Insurance Co [2009] UKHC 40, [2010] 1 AC 180.
+The intention under the present insurances must be taken to have been that they would respond to whatever liability the insured employers might be held to incur within the scope of the risks insured and within the period in respect of which they were insured.
+Thus, as Scrutton and Greer LJJ accepted in the Ellerbeck Collieries case (paragraph 34 above), an employers liability insurance could have been expected to respond to the conventional and artificial definition in the WCAs as to what constituted an accident and when personal injury by accident or disease was sustained for the purposes of employers liability to employees.
+Furthermore, if the common law during or even after the currency of an insurance develops in a manner which increases employers liability, compared with previous perceptions as to what the common law was, that is a risk which the insurers must accept, within the limits of the relevant insurance and insurance period.
+Eady J correctly identified this in Phillips v Syndicate 992 Gunner [2003] EWHC 1084 (QB), [2004] Lloyds Insurance and Reinsurance Reports 426, 429 (left).
+The declaratory theory does not presume the existence of an ideal system of the common law, which the judges from time to time reveal in their decisions.
+But it does mean that, when judges state what the law is, their decisions do . have a retrospective effect in the sense that the law as stated will, generally speaking, be applicable not only to the case coming before [them] but, as part of the common law, to other comparable cases which come before the courts, whenever the events which are the subject of those cases: Kleinwort Benson Ltd v Lincoln CC [1999] 2 AC 349, 378G H, per Lord Goff.
+The declaratory theory is a pragmatic tool, essential when cases can only come before the court some time, perhaps some years after the relevant events occurred, and when the law [must] be applied equally to all, and yet be capable of organic change (p 379A).
+A similar principle must, generally speaking, apply in relation to a statute such as the Compensation Act 2006, which changes or corrects the common law to what Parliament perceives to be a more appropriate result for the purposes of all future cases coming before the courts, whenever the events giving rise to them.
+In the case of that Act, the result was one which the courts might as a matter of common law well have themselves accepted (and which indeed Lord Rodger in his powerful dissent in Barker v Corus believed that the common law had accepted) in Fairchild.
+Concluding, as I have done, that the present insurances covered employers liability for injuries or diseases caused during the relevant insurance periods, the question is whether they cover employers liability for mesothelioma arising under the rule in Fairchild and Barker from having exposed employees to asbestos during such periods.
+It is not in dispute that, if the rule is characterised as a rule of deemed causation, then the policies must respond.
+A parallel example, so familiar that it is easy to overlook, is the vicarious liability to an employee, A, which rests on any employer, B, who has not himself been negligent but must answer vicariously for the negligence of another employee, C.
+We have no hesitation in saying that the employer B has in such a case caused the injury or disease suffered by A.
+But this is so in reality only because a rule of law requires us to equate the acts or omissions of C with those of B.
+The argument, accepted by Lord Phillips, is that the rule in Fairchild and Barker is not one of deemed causation of or, therefore, liability for the disease, but one of liability for the risk created by the exposure.
+For reasons which I have set out, I regard this distinction as too simple.
+The liability arises only because of the incurring of the disease and is for the disease.
+A condition of such liability is that the employer (negligently) exposed the victim to asbestos.
+The insurance policies, read as operating on a causation basis, are aimed at covering liability generated by employers activities during their insurance periods: see paragraphs 18 28 and 41 above; unless liability for mesothelioma flowing from negligent exposure during an insurance period is covered by the policies, this aspect of employers activities will not in practice be covered at all.
+In my view, these considerations justify a conclusion that, for the purposes of the insurances, liability for mesothelioma following upon exposure to asbestos created during an insurance period involves a sufficient weak or broad causal link for the disease to be regarded as caused within the insurance period.
+It would, I think, have been anomalous and unjust if the law by deeming there to have been causation of the disease could have created policy liability (which is common ground), but the law by insisting that the liability in respect of mesothelioma was for the risk of causation achieved a quite different result.
+As I have sought to show, it is not in any event accurate to treat the liability as being either solely or strictly for the risk.
+The risk is no more than an element or condition necessary to establish liability for the mesothelioma.
+The reality, reinforced by provisions in the 2006 Act, is that the employer is being held responsible for the mesothelioma.
+For this purpose, the law accepts a weak or broad causal link.
+The link is to exposure which may but cannot be shown on the ordinary balance of probabilities to have played a role in the actual occurrence of the disease.
+But for the purposes of the policies the negligent exposure of an employee to asbestos can properly be described as having a sufficient causal link or being sufficiently causally connected with subsequently arising mesothelioma for the policies to respond.
+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 rule in Fairchild and Barker.
+Viewing the point slightly more broadly, if (as I have concluded) the fundamental focus of the policies is on the employment relationship and activities during the insurance period and on liability arising out of and in course of them, then the liability for mesothelioma imposed by the rule in my opinion fulfils precisely the conditions under which these policies should and do respond.
+Conclusion
+I would therefore dismiss the appeals by insurers so far as they concern the policies with contracted wordings.
+I would allow the appeals against insurers, and dismiss the appeal by the Independent, so far as they concern policies with sustained wordings.
+ANNEX A The policy wordings (dates are approximate) (1) Excess First Wording (late 1940s): Whereas . (hereinafter called The Employer) carrying on the business of . has made a proposal . this Policy witnesseth that in consideration of the payment of . as premium to the Company on the estimated total amount, as set forth in the Schedule hereto, of the wages, salaries, and other earnings of Employees, a description of whom is set forth in the said Schedule (which premium is subject to adjustment as hereinafter provided) the Company agrees to indemnify the Employer in the manner following, namely That if at any time during the period commencing on theday of19 , and ending on theday of19 (both days inclusive) and for such further period or periods as may be mutually agreed upon, any employee in the Employer's immediate service shall sustain any personal injury by accident or disease while engaged in the service of the Employer in Great Britain, Northern Ireland, the Isle of Man or the Channel Islands, in work forming part of or process in the business above mentioned, and in case the Employer shall be liable to damages for such injury, either under or by virtue of the Common Law, the Fatal Accidents Acts 1846 to 1908, or the Law Reform (Miscellaneous Provisions) Act 1934, the Company will indemnify the Employer The Schedule required a description of the insured companys employees and their estimated total wages, salary and other earnings.
+Condition 1 of the policy further provided that: the Employer shall truly record in a wages book the name of every employee and the amount of wages, salary and other earnings paid to him.
+Second Wording (late 1950s to 1960s): Whereas the Employer . carrying on the business described in the .
+Schedule has made . a written proposal and declaration, containing particulars and statements which it is hereby agreed are the basis of this Contract . and has paid the premium mentioned in the Schedule, which premium is subject to adjustment as hereinafter provided, this Policy witnesseth that if at any time during the period of the indemnity as stated in the Schedule or during any subsequent period for which the Company may accept premium for the renewal of this Policy any person of a description mentioned in the Schedule who is under a contract of service or apprenticeship with the Employer shall sustain personal injury by accident or disease arising out of and in the course of employment by the Employer in work forming part of the process in the business mentioned in the Schedule, the Company will indemnify the Employer against liability at law for damages in respect of such injury or disease The policy provided that the Company should not be liable under it in respect of accidents occurring elsewhere than in Great Britain, Northern Ireland, the Isle of Man or the Channel Islands.
+The policy provided that premiums were to be regulated by the amount of wages, salaries, or other earnings paid to employees by the employer during each period of insurance, with a wages book being kept open to inspection for that purpose and the employer supplying the correct amounts within one month of the expiry of each insurance period.
+Condition 1 and the Schedule were in similar form to those in the first wording.
+Third Wording (1970 to 1976) After a recital in the same form as the second wording, this wording provided: that if at any time during the period of the indemnity as stated in the Schedule or during any subsequent period for which the Company may accept premium for the renewal of this Policy any person of a description mentioned in the Schedule who is under a contract of service or apprenticeship with the Employer shall sustain personal injury by accident or disease arising out of and in the course of employment by the Employer in the business mentioned in the Schedule, the Company will indemnify the Employer against liability at law for damages in respect of such injury or disease Under the third wording, there was the same territorial limitation as under the second wording in relation to accidents occurring elsewhere than in Great Britain, etc.
+Premiums were also regulated by reference to wages, salaries, etc. and condition 1 and the Schedule were in the same terms as in the second wording. (2) Independent Sole wording in Issue (1972 to 1987): This was a Contractors Combined Policy, covering Employers Liability (section 1), Public Liability (section 2) and Loss of or Damage to Contract Works (section 3).
+It provided: NOW THIS POLICY WITNESSETH that during the Period of Insurance or during any subsequent period for which the Company may accept payment for the continuance of this Policy and subject to the terms, exceptions and conditions contained herein and or endorsed hereon, the Company will indemnify the Insured as hereinafter specified.
+SECTION 1 EMPLOYERS' LIABILITY If any person who is under a contract of service or apprenticeship with the Insured shall sustain bodily injury or disease arising out of and in the course of his employment by the Insured in connection with the Contract specified or type of work described in the Schedule the Company will indemnify the Insured against all sums for which the Insured shall be liable at law for damages for such injury or disease The Policy provided that the Company was not to be liable for injury, illness, loss or damage caused elsewhere than in Great Britain, the Isle of Man or the Channel Islands.
+As a result of the ELCIA 1969 making insurance in respect of employers liability compulsory, the Independent wording also contained the further provision (the ELCIA extension provision): "AVOIDANCE OF CERTAIN TERMS AND RIGHT OF RECOVERY The indemnity granted by section 1 of this Policy is deemed to be in accordance with the provisions of any law relating to compulsory insurance of liability to employees in Great Britain.
+It is agreed the Insured shall repay to the Company all sums paid by the Company which the Company would not have been liable to pay but for the provisions of such law. " The policy Schedule contains spaces for entry of first, annual and minimum premium, as well as of the name of the Principal for whom the insured is undertaking work, the details of the contract or type of work covered by the policy and its situation.
+Condition 7 provides that the premium is based on estimates provided by the Insured, for record keeping, for the supply of updated information as required by the Company within one month of the expiry of each insurance period and for adjustment of the premium on that basis. (3) MMI First Wording (1949 to 1958) the Company hereby agrees that if at any time during the period of insurance specified in the schedule or thereafter during any subsequent period for which the Insured shall agree to pay and the Company shall agree to accept a renewal premium of the amount specified in the said schedule, or of such other amount as the Company shall from time to time require, any person under a contract of service with the Insured shall sustain any personal injury by accident or disease arising out of and in the course of his employment by the Insured in their activities described in the schedule and if the Insured shall be liable to pay damages for such injury or disease then, subject to the terms and conditions contained herein or endorsed hereon, the Company shall indemnify the Insured against all sums for which the Insured shall be so liable The policy was expressed not to apply to or include liability in respect of injury or disease caused elsewhere than in Great Britain, Northern Ireland, the Isle of Man or the Channel Islands.
+Condition 5 regulated premiums by reference to wages, salaries, etc, and made provision for a wages book and adjustment to like effect to the Excess second wording.
+The policy Schedule provided for the classification of staff and employees according to departments and job description, with corresponding figures for estimated total remuneration.
+Second Wording (1958 to 1974) the Company hereby agrees that if at any time during the First Period of Insurance specified in the said Schedule or during any subsequent period for which the Insured shall agree to pay and the Company shall agree to accept a renewal premium of the amount specified as the Renewal Premium in the said Schedule or of such other amount as the Company shall from time to time require, any person under a contract of service with the Insured shall sustain any bodily injury or disease arising out of and in the course of his employment by the Insured in the Insured's activities described in the said Schedule and if the Insured shall be liable to pay damages for such injury or disease or for death resulting from such injury or disease then, subject to the terms, exceptions and conditions contained herein or endorsed hereon or set out in the Schedule to this Policythe Company will indemnity the Insured against all sums for which the Insured shall be so liable.
+Like the first wording, this wording contained a territorial exclusion of liability in respect of injury or disease caused elsewhere than in Great Britain, etc.
+The policy Schedule provided for the entry of the Estimates (if any) on which the premium is calculated, including in particular any such estimate of wages, salaries, etc. paid to staff, and cross referred to condition 7, which provided that, if the premium had been based on any estimates, an accurate record should be kept (of actual amounts), the insured should provide insurers with such particulars and information as might be required within one month of the expiry of the policy period and the premium adjusted accordingly.
+Third Wording (1974 to 1992) The Company agrees to indemnify the Insured in respect of all sums without limit as to amount which the Insured shall be legally liable to pay as compensation for bodily injury or disease (including death resulting from such bodily injury or disease) suffered by any person under a contract of service or apprenticeship with the Insured when such injury or disease arises out of and in the course of employment by the Insured and is sustained or contracted during the currency of this Policy.
+The policy Schedule contemplated a premium adjustable in accordance with condition 5, which in turn provided (in like manner to condition 7 of the second wording) for the adjustment of any premium so calculated by reference to actual amounts at the end of the policy period. (4) BAI First Wording (1953 to 1974) . the Company willindemnify the Insured against all sums of money which the Insured may become liable to pay to any Employee engaged in the direct service of the insured or any dependent of such Employee in respect of any claim for injury sustained or disease contracted by such Employee betweenandboth inclusive The policy carried the note: This policy does not cover the insureds liability for accidents to workmen arising outside the United Kingdom.
+Conditions 1 and 2 made elaborate provision for the regulation of premiums by the amount of wages, salaries, or other earnings paid to employees by the employer during each period of insurance, with pay sheets and books of account being kept open to inspection for that purpose and the employer making a return, and the premium being adjusted, subject to a minimum, at the end of each insurance period.
+Second Wording (1974 to 1983) the Company willindemnify the Insured against all sums of money which the Insured may become legally liable to pay in respect of any claim for injury sustained or disease contracted by any person engaged in and upon the service of the Insured and being in the Insured's direct employment under a Contract of Service or Apprenticeship between theday ofand theday ofboth inclusive This wording also excluded insurers from liability in respect of accidents to employees arising outside the United Kingdom.
+Like the Independent and third MMI wordings, the BAI second wording also included the ELCIA extension provision.
+Conditions 1 and 2 provided for the regulation and adjustment of premiums by reference to actual wages, salaries, etc. during each insurance period, in like terms to conditions 1 and 2 in the first wording. (5) Zurich The Municipal First Select wording (1993 to 1998) The INSURER will indemnify the INSURED in respect of all sums which the INSURED may become legally liable to pay as damages and claimants' costs and expenses in respect of Injury sustained during the Period of Insurance by any EMPLOYEE arising out of and in the course of employment by the INSURED in the BUSINESS within the Geographical Limits.
+The Municipal Second Select wording (1998 ) The INSURER will indemnify the INSURED in respect of all sums which the INSURED may become legally liable to pay as damages and claimants' costs and expenses in respect of Injury caused during the Period of Insurance to any EMPLOYEE arising out of and in the course of employment by the INSURED in the BUSINESS within the Geographical Limits.
+The tariff wording (1948 ) if any person under a contract of service or apprenticeship with the Insured shall sustain any personal injury by accident or disease caused during the period of insurance and arising out of and in the course of his employment by the Insured in the business above mentioned and if the Insured shall be liable to pay damages for such injury or disease the Association shall indemnify the Insured against all sums for which the Insured shall be so liable.
+LORD CLARKE
+Like other members of the Court, I agree with Lord Mance on the construction issue.
+Thus I agree that, for the purposes of the EL policies, mesothelioma is sustained or contracted when the process that leads to the disease is initiated as a result of the wrongful exposure of the employee to the asbestos fibre or fibres which cause the disease.
+I do not wish to add to Lord Mances reasoning on the construction issue.
+I do however wish to add some words of my own on the causation issue which sharply divides Lord Phillips and Lord Mance.
+I wish to say shortly why I prefer the conclusion of Lord Mance to that of Lord Phillips.
+As I see it, the effect of Fairchild, Barker and Sienkiewicz may be summarised in this way.
+An employer who, in breach of duty, has exposed an employee to asbestos is liable in damages if the employee subsequently suffers the disease.
+The employees cause of action is not that he was exposed to the risk of mesothelioma.
+He has no claim unless he in fact suffers the disease.
+It is the disease which represents the damage which completes the cause of action and it is only then that his cause of action accrues and the relevant time limit begins to run.
+It is axiomatic that, in order to succeed in tort, the employee must show a sufficient causal link between the breach of duty, namely the exposure to asbestos, and the disease which represents the damage, namely mesothelioma.
+The effect of the majority opinion in Barker is that, where there are two or more employers who have exposed the claimant to the risk of mesothelioma, they are not jointly and severally liable to the claimant for the whole of the consequences of the disease but only severally liable for an aliquot part.
+That decision was reversed by the Compensation Act 2006, so that such employers are jointly and severally liable for the whole of the consequences.
+The question in this appeal is whether the employers liability insurers are liable to indemnify the employers in respect of that liability.
+It would in my opinion be a remarkable result if they were not.
+Lord Phillips notes at para 109 that Mr Edelman QC accepted that, if the correct analysis of the special rule, which (using Lord Phillips definitions) was the result of the combined effect of the special approach in Fairchild and Barker and the Compensation Act 2006, was that the employers were deemed to have caused mesothelioma by exposing the employees to asbestos dust, the insurers would be liable.
+Lord Phillips accepts that that concession was correctly made.
+I agree, for the reasons he gives at paras 109 to 114.
+The question is therefore whether the correct analysis of the special rule is indeed that the employers were deemed to have caused the mesothelioma.
+I accept that in such a case the employee cannot show on the balance of probabilities that the employers negligence caused the disease.
+The effect of Fairchild and Sienkiewicz was however that the employer is liable where the exposure contributed to the risk that the employee would suffer the disease and where the employee in fact suffers the disease.
+That is not in dispute.
+Lord Phillips says at para 124 that the majority in Barker drew the vital distinction between being liable for contributing to the cause of the disease and being liable for the creation of the risk of causing the disease.
+He quotes para 2 of Lord Hoffmanns speech as follows: Is any defendant who is liable under the exception deemed to have caused the disease? On orthodox principles, all defendants who have actually caused the damage are jointly and severally liable.
+Or is the damage caused by a defendant in a Fairchild case the creation of a risk that the claimant will contract the disease? In that case, each defendant will be liable only for his aliquot contribution to the total risk of the claimant contracting the disease a risk which is known to have materialised.
+Lord Phillips further notes that at para 125 Lord Hoffmann advanced the thesis that the basis of liability was the wrongful creation of the risk or chance of causing the disease and that the damage that the defendant should be regarded as having caused was the creation of such risk or chance.
+See also the passages to like effect referred to by Lord Mance at para 61.
+I accept that Lord Hoffmann and others did indeed advance that view of Fairchild but it is I think important to note that it was in the context of the question whether, in a case of two or more employers, each was severally liable for a proportion of the consequences of the mesothelioma or whether each was jointly and severally liable for the whole.
+Lord Hoffmann cannot have intended to hold, without more, that the basis of liability was the wrongful creation of the risk or chance of causing the disease because there would be no liability at all but for the subsequent existence of the mesothelioma.
+It seems to me that, whether the majority in Barker were correct or not, there is no escape from the conclusion that, in all these cases, where it is not possible to show that the particular employer caused the claimant to suffer mesothelioma, the underlying question is who should be held responsible for causing the mesothelioma which in fact struck down the employee.
+None of the cases is authority for the proposition that causation is irrelevant.
+On the contrary, the quest is for the employer who can fairly be held liable for the consequences of the disease and therefore for the employer who can fairly be said to have caused the disease.
+The courts have embarked on similar quests over the years.
+Lord Mance has given a number of examples.
+As Lord Mance shows at para 56, they include Bonnington and McGhee, where Lord Reid was prepared to take a broad view of causation and Lord Wilberforce rejected a traditional approach for policy or evidential reasons.
+In my opinion the reasoning in Sienkiewicz is of some significance in this context.
+Lord Mance has given the relevant references in para 61.
+Thus, as Lord Mance observes, at para 61 Lord Phillips said that Fairchild and Barker had developed the common law by equating materially increasing the risk with contributing to the cause in specified and limited circumstances.
+Lord Mance further refers to Lord Brown speaking of a more relaxed approach to causation and flexibility in the approach to causation at paras 178 and 187.
+Lord Mance had himself referred to Fairchild and Barker as involving a special rule of causation at para 188, and Lord Kerr referred to them as involving a modification of the previously applicable legal rules in relation to the causation element in employers liability claims at para 196 and to adjustments in the burden of proof at paras 198 and 200.
+Again, as Lord Mance observes at para 61 above, Lord Dyson referred (at para 207) to materially increasing the risk of contracting the disease as sufficient to satisfy the causal requirements for liability (para 207).
+Both Mr Beloff QC and Mr Stuart Smith QC addressed these issues in their oral submissions.
+They both in effect submitted that the effect of Fairchild, Barker and Sienkiewicz was that the employers were deemed to have caused mesothelioma by exposing the employees to asbestos dust.
+They both recognised that the ordinary rule of causation could not apply and that some element of policy or doctrine was required in order to explain Fairchild.
+Mr Stuart Smith submitted that the effect of Fairchild was that each material exposure to asbestos dust is doctrinally held responsible for the mesothelioma.
+Mr Beloffs submission was to much the same effect.
+He relied upon a dictum of Lord Walker in Barker at para 109: A rule of law by which exposure to risk of injury is equated with legal responsibility for that injury entails the possibility that an employer may be held liable for an injury which was not in fact caused by that exposure (though in the present state of medical science, that fact can be neither proved nor disproved).
+The injury is of course the mesothelioma, which is necessary to complete the cause of action.
+On that basis it seems to me that Lord Walkers statement that the risk of injury is equated with legal responsibility for the injury is in effect to say that, by creating the risk of mesothelioma in the future, the employer is deemed to have caused the mesothelioma, if it should develop in the future.
+It appears to me that these conclusions are supported by Lord Mances analysis of section 3 of the Compensation 2006 at paras 67 and 68, with which I agree and to which I do not wish to add anything.
+Given Mr Edelmans concession that, if that is correct, the employers are liable under the policies (and this Courts acceptance of it) I would hold that the causation point does not assist the insurers.
+I would only add this.
+It appears to me that, once it is held that, on these facts, the employers are liable to the employees, it would be remarkable if the insurers were not liable under the policies.
+Rather as in AXA, the whole purpose of the policies was to insure the employers against liability to their employees.
+That purpose would be frustrated if the insurers submissions on this point were accepted.
+I agree with Lord Mance, for the reasons he gives at paras 69 73 that these policies respond to these claims.
+For these reasons, I too would dismiss the appeals by insurers so far as they concern the policies with contracted wordings.
+I would allow the appeals against insurers, and dismiss the appeal by the Independent, so far as they concern policies with sustained wordings.
+LORD DYSON
+I too agree with Lord Mance on the construction issue.
+As to the causation issue, I agree with the reasoning of Lord Mance and Lord Clarke.
+Accordingly, I would dismiss the appeals by insurers in so far as they concern the policies with contracted wordings.
+I would allow the appeals against insurers, and dismiss the appeal by the Independent, so far as they concern policies with sustained wordings.
+LORD PHILLIPS
+Introduction
+So called long tail industrial diseases have raised peculiar difficulties in the field of tort.
+These diseases result from the effect on the body of exposure to noxious substances.
+The effect can be long, drawn out and mysterious, in as much as medical science has not yet identified the precise mechanism, or chain of causation, by which the noxious substance causes the disease.
+Mesothelioma is a long tail disease in which the problems raised have been particularly acute.
+The problems arise in the application of principles of law that do not ordinarily give rise to difficulty.
+An employer will be liable in damages if by an act or omission that is negligent or in breach of statutory duty he causes physical harm to an employee.
+In the vast majority of cases there will be no difficulty in identifying the moment at which the negligence or breach of duty causes the physical harm, for the harm will take the form of an obvious injury.
+This is not the position in respect of mesothelioma.
+Asbestos dust, inhaled into the lungs, is the agency that causes mesothelioma, but as long as forty or fifty years may elapse before the effects on the body of dust inhaled culminate in symptoms of mesothelioma.
+Once the symptoms are felt, the disease will develop swiftly to bring about an inevitable and extremely unpleasant death.
+Where a victim of mesothelioma was exposed to asbestos dust over a period of years it is impossible, even with hindsight, to determine on balance of probabilities whether dust inhaled in a particular year caused or contributed to the development of the mesothelioma.
+It follows that, where the victim worked for a series of employers, each of whom exposed him to asbestos dust, it is impossible to prove on balance of probability that any particular employer caused or contributed to the victims mesothelioma.
+This means that the normal principles of the law of tort provide no remedy to the employee or his dependants.
+The manifest injustice of this position led the House of Lords in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32 and Barker v Corus UK Ltd [2006] UKHL 20; [2006] 2 AC 572 to create what I shall describe as a special approach to causation in respect of mesothelioma, whose effect was immediately varied by Parliament by section 3 of the Compensation Act 2006.
+I shall describe the composite result achieved by the House of Lords and Parliament as the special rule.
+I shall examine the nature of this special rule in due course.
+Its effect was, however, to place each employer in the same position as that employer would have been under at common law if it were proved, on balance of probability, that its negligence or breach of duty in exposing the employee to asbestos dust had contributed to causing the employees mesothelioma.
+These developments of the law of tort have formed the backdrop to the issue that has occupied almost all of the eight days that this Court has devoted to this appeal.
+I shall call this issue the construction issue.
+The construction issue relates to the true construction of a number of policies of insurance against employers liabilities (EL policies) with similar, but not identical, provisions as to the cover provided.
+The EL policies provided cover by reference to specific periods usually of a year.
+The central issue relates to the event or events that, on true construction of each policy, had to occur within the period of the policy in order to render the insurer liable to indemnify the employer in respect of liability for causing an employees mesothelioma.
+The policies provided cover in respect of diseases sustained or contracted during the period of the policy.
+The meaning of each of those words, in its context, lies at the heart of the construction issue.
+It does not seem that the construction issue initially received a great deal of consideration.
+Insurers treated the policies as if they covered an employer whose breach of duty within the period of the policy had contributed to causing the disease and regarded this requirement as satisfied if the employer was held liable because he had exposed the employee to asbestos dust during that period.
+Where more than one insurer was liable on this basis, they apportioned liability according to the period of exposure covered by each.
+The attitude of four of the five insurers party to this appeal changed as a result of the decision of the Court of Appeal in Bolton Metropolitan Borough Council v Municipal Mutual Insurance Ltd [2006] EWCA Civ 50; [2006] 1 WLR 1492.
+Those insurers are MMI, Excess, BAI and Independent, each of which is in run off.
+I shall describe them collectively as the insurers.
+Their opponents I shall describe collectively as the employers, although they embrace solvent employers, individuals claiming under the Third Party (Rights against Insurers) Act 1930, and Zurich, which has a community of interest with these.
+Bolton concerned the scope of cover of a public liability policy (PL policy) in relation to liability for causing mesothelioma.
+The policy provided cover in respect of an injury that occurs during the currency of the policy.
+The argument proceeded on the premise that the chain of causation of mesothelioma, once it was diagnosed, could be traced back to the initial inhalation of asbestos dust.
+The issue was whether the mesothelioma could properly be said to have occurred at the time of the initial inhalation.
+The Court of Appeal held that it could not.
+The injury only occurred, at earliest, at the stage of development of the disease at which malignancy occurred.
+This was, on the evidence, ten years, give or take a year, from the date on which it became possible to diagnose the existence of the tumour but very many years after the initial inhalation of asbestos dust.
+This decision led the insurers to take the point that a similar approach should be taken to the interpretation of the cover afforded by the EL policies.
+Mesothelioma was not, on true construction of the policies, sustained or contracted at the time of the initial inhalation of asbestos dust.
+It was only sustained or contracted at the much later stage when, as a consequence of the process initiated by asbestos dust, an actionable injury in the form of malignancy, developed.
+Before Burton J, the Court of Appeal and this Court the construction issue has been argued at great length and in great detail.
+I agree, as do the other members of the Court, with the conclusions reached by Lord Mance on the construction issue.
+These conclusions have application not merely to mesothelioma but to employers liabilities in relation to other long tail industrial diseases such as asbestosis and pneumoconiosis.
+For the purpose of EL policies, these diseases are sustained or contracted when the process that leads to the disease is initiated as a result of the wrongful exposure of the employee to the noxious substance that causes, or contributes to the cause or the extent of, the disease.
+Throughout the hearing of this appeal there has lurked a second issue.
+It has not been the subject of argument below, nor does it feature in the agreed Statement of Facts and Issues.
+This is, perhaps, because it relates to a point that does not arise out of Bolton.
+It has always been there for the taking, but insurers have not hitherto chosen to raise it, perhaps because its consequences are unattractive.
+It arises out of a problem that is similar to that which led the House of Lords to formulate the special approach in Fairchild and Barker.
+It is not possible for an employer to prove that an employees mesothelioma was, in fact, caused in whole or in part by any particular period of exposure to asbestos dust.
+Thus the employer cannot prove, on balance of probability, that the mesothelioma for which he has been held liable under the special rule was, in fact, initiated in any particular policy year.
+How, then, can he prove that his liability falls within the scope of the cover, even if the policy bears the construction contended for by the employers and upheld by this Court? How can he prove that his liability arises out of disease sustained or contracted within the policy period, giving these words the same meaning as initiated? I shall call this issue the causation issue.
+The causation issue and the judgments below
+Although the causation issue was not raised in argument below, it was dealt with, at least implicitly, in the judgments of both courts.
+Burton J at first instance, and Rix and Stanley Burnton LJJ in the Court of Appeal proceeded on the basis that, in the case of a mesothelioma victim, exposing the victim to asbestos dust could be treated as equivalent to causing his disease.
+This approach was based on the special rule.
+Thus Burton J at paras 42 to 58 summarised, without significant comment, what he described as the special mesothelioma jurisprudence as it was at the time of his judgment.
+This included Fairchild, Barker and the 2006 Compensation Act.
+He thereafter proceeded on the basis that exposing a mesothelioma victim to asbestos dust could be treated as having been equivalent to causing the victim to contract the disease.
+Thus, when summarising his conclusions at para 243 he said: I conclude, in relation to the policies in issue before me, that they respond, just as would policies with caused wording, to claims against insurers where employers are liable on the basis of inhalation by employees during the policy period.
+They respond, consistently with other EL policies, in respect of mesothelioma claims, on an exposure basis.
+For the purposes of these policies, injury is sustained when it is caused and disease is contracted when it is caused, and the policies fall to be so construed.
+Rix LJ drew a distinction between the meaning of contracted and sustained.
+Contracted referred to the time of the diseases causal origins para 245.
+He felt constrained by Bolton, however, to hold that no injury was sustained until the disease reached the malignant stage.
+Implicit in his judgment was the premise that exposure to asbestos dust during the period of the policy could be treated as the causal origin of the disease see for example his comments at para 244.
+A difficult passage in his judgment at paras 280 283, when considering the meaning of injury, suggests that this premise was founded on the special rule.
+Thus he was able to conclude that the disease was contracted at the time that the victim was exposed to asbestos dust albeit that injury was not sustained at that point.
+In a short judgment Stanley Burnton LJ adopted similar reasoning.
+He stated, at para 338: We are agreed that in any year in which there was substantial exposure to asbestos, mesothelioma was caused by that exposure during that year.
+The fact that the disease did not develop for some years does not break the chain of causation.
+Submissions on the causation issue
+The causation issue was not raised by the insurers as a discrete issue.
+It none the less surfaced in a passage of the written case for Excess that was addressing the employers case that personal injury by disease was sustained at the moment of inhalation of asbestos dust that triggered the process of sustaining personal injury by disease.
+One of the arguments advanced by Excess in answer to this submission read as follows: Medically and empirically, one cannot be said to have suffered an injury on a particular day because it cannot be known in (say) a 10 year occupational exposure period on which of the 3652 days the fatal dose was inhaled (and it may be on more than one).
+It is likely that any ingestion on a particular day was irrelevant to the development of the final condition.
+There has been a tendency on the part of the claimants to treat inhalation as a single event from which an unbroken line can be drawn to malignancy.
+It is not.
+Inhalation (and hence on this theory) injury may occur over several thousands of days.
+Each day does not bring injury.
+Any particular day cannot therefore be selected as injury day.
+To overcome problems of medical causation in a personal injury action against an employer, the House of Lords extended the McGhee principle to mesothelioma in Fairchild.
+However this was a rule of causation and not definition.
+There is no such rule in insurance policies which defines what amounts to an injury.
+The Supreme Court in Sienkiewicz stressed the limits of the Fairchild exception in no uncertain terms, and it is submitted that it would be quite wrong for it now to invade the law of contract.
+A liability policy responds only to indemnify against a liability (i.e. actionable injury).
+There is no such liability on inhalation.
+Injury occurs when the claimant has a personal injury by disease.
+Thus Excess took the point that the special rule could not properly be invoked to establish that, on true construction of the contracts of insurance, injury was sustained upon inhalation of asbestos dust.
+This passage appeared after a submission at para 209 that it was only possible to equate the inhalation of a culpable quantity of asbestos dust with sustaining personal injury by disease by, inter alia, creating a special rule governing the response of EL policies in respect of mesothelioma, and possibly other long tail diseases.
+This proved to be what counsel for the employers sought to do when invited by the Court to address the causation issue.
+They did so in short oral submissions that cannot, when taken together, have occupied more than half an hour of the eight day hearing.
+The relevant submissions made by Mr Beloff QC for Akzo and AMEC and the Local Authorities are reported at pp 120 122 of the transcript for 15 December 2011.
+He started by observing that we had to cut the Gordian knot.
+He suggested that we should do so by equating creation of a risk with causing bodily injury.
+This he submitted was permissible because the object of the policy was to provide cover to an employer who, in breach of duty to employees, caused them compensatable damage.
+Were this approach not adopted, it would be impossible to show that any of a number of insurers providing cover over a period of years was liable.
+The law should rebel against such a result.
+In support of this submission Mr Beloff cited a statement by Lord Walker of Gestingthorpe in Barker at para 109 suggesting that the special approach to mesothelioma equated the exposure to the risk of injury with legal liability for the injury.
+Mr Stuart Smith QC for Zurich dealt with the causation issue at rather greater length in a passage reported at pp 126 to 131 of the same transcript.
+He started by accepting that it was impossible to know when the metabolic changes that led to the development of mesothelioma in fact occurred.
+Fairchild dealt with this problem by creating a doctrinal rule under which each significant exposure to asbestos dust was held to be responsible for the mesothelioma.
+Thus doctrinally the process of developing mesothelioma started upon inhalation.
+This doctrinal framework for the application of the law of tort was that within which policies of insurance against tortious liability had to operate.
+Mr Stuart Smith agreed with this summary of his argument advanced by Lord Mance: If the law of tort treats someone, an employee, as having sustained a personal injury and treats the employer as liable to pay damages for such personal injury, then the policy answers.
+These submissions on behalf of the employers raise the following questions: i) Will the policies respond to fictional or doctrinal events that are deemed to have occurred under the special rule? If so: ii) Does the special rule deem that events have occurred to which the policies should respond? If not: iii) Can this Court properly reformulate the special rule in such a way as to require the policies to respond? Will the policies respond to fictional or doctrinal events?
+On the premise that he failed on the construction issue, Mr Edelman accepted that, if the correct analysis of the special rule was that the employers were deemed to have caused the mesothelioma by exposing the victims to asbestos dust, then the policies should properly respond.
+Because of the view that I take of the next two questions I do not need to decide whether the concession was properly made.
+I have, however, concluded that it was.
+The policies exist to provide protection against employers liability in tort.
+If the law of tort, whether laid down by the courts or by Parliament, resorts to legal or doctrinal fictions, it seems logical that the policies should respond as if the fictions were facts.
+A purposive approach to construction of the policies would lead to this result.
+Two examples illustrate this approach.
+Ellerbeck Collieries Ltd v Cornhill Insurance Co Ltd [1932] 1 KB 401 involved a policy of insurance against liability under the Workmens Compensation Act 1925.
+The terms of the policy entitled the employer to indemnity if at any time during the currency of the insurance any employee sustained any personal injury by accident or disease.
+The 1925 Act imposed a fictitious test for identifying when an industrial disease was sustained, namely the date on which a certifying surgeon issued a certificate that the employee was suffering from the disease.
+On the strength of a certificate issued within the currency of a policy of insurance an employer was held liable to two workmen who had, in fact, sustained the relevant disease before the period of the insurance began.
+The Court of Appeal held that this liability fell within the cover of the policy.
+The argument for applying the fictional date was a strong one because, as Greer LJ observed at p 417, the policy was intended to cover the employers liability under the Act.
+The parallel between Ellerbeck and the present case would have been stronger had the relevant policies been taken out after the special rule had been created.
+In Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39, [2008] AC 281 the House of Lords held that pleural plaques caused by exposure to asbestos dust did not constitute actionable injury because they produced no adverse physical effects.
+The Scottish Parliament responded to this decision by introducing the Damages (Asbestos related Conditions) (Scotland) Act 2009 (the Scottish Act).
+That Act provides by section 1 that asbestos related pleural plaques constitute a personal injury which is not negligible and that accordingly they constitute actionable harm for the purpose of an action for damages for personal injury.
+In AXA General Insurance Ltd v HM Advocate [2011] UKSC 46, [2011] 3 WLR 871 the Supreme Court rejected a challenge by insurers to the lawfulness of this Act.
+The Scottish Act effected a limited alteration to the common law in decreeing that asymptomatic pleural plaques constituted non negligible personal injury and thus actionable damage.
+Lord Mance at para 88 suggested that the main target of the legislation was employers insurers.
+He went on at para 89 to consider whether the Act would, in fact, alter the meaning to be given to bodily injury under a policy of insurance: A Scottish Act will not on the face of it change the legal effect of an English insurance contract, even in Scotland.
+However, depending upon the particular policy language, the scope of the concept of bodily injury under a worldwide policy may respond to different conceptions of bodily injury in different parts of the world.
+Here, the question would be whether it would respond to a development or change, such as that introduced retrospectively by the 2009 Act, in the conception of bodily injury.
+I say no more about the answer, which may be elicited in another context or suit.
+While Lord Mance left open the effect of the Scottish Act on the construction of policies of liability insurance, Lord Brown was in no doubt that the effect of the Scottish Act was to subject insurers to liabilities to which they would not have been subject prior to that Act.
+He referred at para 80 to the undoubted, and deliberate, impact of the legislation upon pending claims.
+Earlier, at para 77, he drew an analogy with the effect of the decision in Fairchild on EL insurers liability: Had the House of Lords in Rothwell decided that asymptomatic pleural plaques of themselves constitute a non negligible personal injury and thus actionable damage decided in other words that in this particular context the common law should develop in this admittedly novel way the appellants would doubtless have deplored the decision but they could certainly not have questioned its legitimacy.
+No doubt they would have resented the fact that, as a consequence of the decision, they would unexpectedly have had to pay out on claims resulting from the employees exposure to asbestos upwards of 20 years (quite likely up to 40 years) previously.
+But they could no more have advanced an [article 1, Protocol 1] challenge to this development of the law than they could have challenged the House of Lords decision some four years earlier in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 to adopt a less stringent than the usual but for test for establishing the necessary causal connection between an employers negligence and a claimants condition in, most notably, mesothelioma cases.
+Employers (and their liability insurers) necessarily take the risk of the common law developing in ways which may adversely affect them with regard to personal injury claims.
+In this passage Lord Brown assumed that the effect of Fairchild was to bring employers liabilities in respect of mesothelioma within the scope of the cover afforded by EL policies.
+I am about to consider whether he was correct in this.
+I agree, however, with the general principle expressed in the last sentence of the extract from his judgment that I have just cited.
+It is for this reason that I would give an affirmative answer to the first of the three questions posed at para 108 above.
+I turn to the second.
+What is the special rule?
+The employers submissions on the causation issue proceed on the premise that the special rule deems exposure to asbestos dust of an employee who is subsequently diagnosed with mesothelioma to have been a cause of the mesothelioma.
+I have reached the conclusion that that premise is unsound.
+In Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10; [2011] 2 AC 229 I summarised the special rule as follows at para 1: When a victim contracts mesothelioma each person who has, in breach of duty, been responsible for exposing the victim to a significant quantity of asbestos dust and thus creating a material increase in risk of the victim contracting the disease will be held to be jointly and severally liable for causing the disease.
+This is certainly the effect of the special rule, but in order to discover the juridical basis of the rule it is necessary first to identify the basis of the special approach adopted by the House of Lords in Fairchild and Barker and then to consider the effect of section 3 of the Compensation Act, which adapted the special approach into the special rule.
+The special approach
+In Sienkiewicz, at para 70, I stated that Fairchild and Barker developed the common law by equating materially increasing the risk with contributing to the cause in specified and limited circumstances, which include ignorance of how causation in fact occurs.
+As I shall show, this was not an accurate summary of the special approach adopted in those cases.
+In Fairchild the House of Lords confronted the position where a mesothelioma victim had worked consecutively for a number of employers, each of which had exposed him to asbestos dust.
+One or more of these had caused his mesothelioma, but because of the limits of medical knowledge it was not possible, on balance of probability, to identify which.
+In these circumstances their Lordships adopted a special approach that enabled them to find that each of the employers was jointly and severally liable for the mesothelioma.
+In doing so they purported to be following a similar approach adopted by the House of Lords in McGhee v National Coal Board [1973] 1 WLR 1.
+They were not, however, all agreed as to the basis of that approach.
+Lord Hutton, at para 109, held that it was based on the drawing of a factual or legal inference leading to the conclusion that the breach of duty [in exposing the employee to asbestos dust] was a cause of the disease.
+The majority of the House did not agree.
+Lord Bingham said, at para 35: I prefer to recognise that the ordinary approach to proof of causation is varied than to resort to the drawing of legal inferences inconsistent with the proven facts.
+Lord Nicholls of Birkenhead said, at para 42: So long as it was not insignificant, each employer's wrongful exposure of its employee to asbestos dust, and, hence, to the risk of contracting mesothelioma, should be regarded by the law as a sufficient degree of causal connection.
+This is sufficient to justify requiring the employer to assume responsibility for causing or materially contributing to the onset of the mesothelioma when, in the present state of medical knowledge, no more exact causal connection is ever capable of being established."
+Lord Hoffmann at para 65 rejected the suggestion that the House in McGhee held that materially increasing the risk of the disease should be treated as equivalent to material contributing to the injury.
+He concluded: I would respectfully prefer not to resort to legal fictions and to say that the House treated a material increase in risk as sufficient in the circumstances to satisfy the causal requirements for liability.
+Lord Rodger of Earlsferry did not agree.
+His reasoning was close to that of Lord Hutton.
+He held, at para 168: Following the approach in McGhee I accordingly hold that, by proving that the defendants individually materially increased the risk that the men would develop mesothelioma due to inhaling asbestos fibres, the claimants are taken in law to have proved that the defendants materially contributed to their illness.
+What then happened has been summarised by Lord Hoffmann in Perspectives on Causation (2011) at p 8: There are two ways in which one could characterise this change in the substantive law of negligence.
+One is to say that the causal requirements for an action for damages for mesothelioma have been changed; all that is necessary is to prove that the risk has been increased and that the specific exposure may have provided the actual agent.
+The other is to say that the House created, exceptionally, a cause of action for the increased risk of mesothelioma rather than for the disease itself.
+In the former case, satisfying the new causal requirement would entitle the claimant to sue for the whole injury caused by contracting the disease.
+In the latter case, he would be able to sue only for the loss caused by the risk of his contracting the disease having been increased.
+That would be a proportion of the injury caused by the disease, depending on the extent to which the risk had also been created by other causes.
+In Barker v Corus the House of Lords (Lord Rodger of Earlsferry dissenting) adopted the second explanation of what had happened in Fairchild.
+I believe that this summary of the position is essentially correct.
+The majority in Barker were persuaded that justice would best be served if the special approach adopted in Fairchild were applied in such a way as to render each defendant who had wrongfully exposed the claimant to asbestos dust severally liable for that proportion of the mesothelioma that represented the proportion of the wrongful exposure attributable to that defendant.
+This was achieved by holding that the liability of each defendant resulted from adding to the risk that the employee would contract mesothelioma.
+It did not result from an implication that each defendant had actually contributed to the cause of the disease.
+At the start of his speech at para 2 Lord Hoffmann drew the vital distinction between being liable for contributing to the cause of the disease and being liable for the creation of the risk of causing the disease: Is any defendant who is liable under the exception deemed to have caused the disease? On orthodox principles, all defendants who have actually caused the damage are jointly and severally liable.
+Or is the damage caused by a defendant in a Fairchild case the creation of a risk that the claimant will contract the disease? In that case, each defendant will be liable only for his aliquot contribution to the total risk of the claimant contracting the disease a risk which is known to have materialised.
+Lord Hoffmann went on to adopt the latter analysis as the basis of liability in Fairchild.
+At para 31 he held that the majority in Fairchild had not proceeded upon the fiction that a defendant who had created a material risk of mesothelioma was deemed to have caused or materially contributed to the contraction of the disease.
+The creation of a material risk of mesothelioma was sufficient for liability.
+At para 35 he advanced the thesis that the basis of liability was the wrongful creation of the risk or chance of causing the disease and that the damage that the defendant should be regarded as having caused was the creation of such risk or chance.
+Liability for the mesothelioma that developed should be apportioned according to the contribution that each defendant made to the risk that mesothelioma would be contracted.
+Lord Scott of Foscote and Lord Walker of Gestingthorpe expressly agreed with both Lord Hoffmanns conclusion that liability for the mesothelioma fell to be apportioned and with his reasons for so concluding.
+Lord Scott held at para 53 that it was essential to keep firmly in mind that liability in Fairchild was not imposed on any of the defendant employers on the ground that the employers breach of contract had caused the mesothelioma.
+That causative link had not been proved against any of them.
+It was imposed because each, by its breach of duty, had materially contributed to the risk that the employee would contract mesothelioma.
+At para 61 he emphasised that the Fairchild principle was not based on the fiction that each defendant had actually caused the eventual outcome.
+It was based on subjecting the victim to a material risk.
+Lord Walker, having stated that he was in full agreement with Lord Hoffmanns reasons went on at para 104 to make a statement that was inconsistent with them, this being to the same effect as the statement relied on by Mr Beloff see para 106 above.
+Lord Walker stated that the decision in Fairchild equated exposing the victim to the risk of injury with causing his injury.
+This was the same mistake as I made in Sienkiewicz see para 117 above.
+Had this been the case, each defendant would have been jointly and severally liable for the injury.
+Lord Walker went on to say, however, that the result in Fairchild was achieved, not by some fiction, but as an explicit variation of the ordinary requirement as to causation.
+At para 113 he stated that Fairchild was decided by the majority, not on the fictional basis that the defendants should be treated as having caused the victims damage, but on the factual basis that they had wrongfully exposed him to the risk of damage.
+Lady Hale did not adopt Lord Hoffmanns thesis that the creation of risk constituted the damage for which each defendant was liable.
+In general, however, she agreed with the majority.
+She held that in Fairchild, for the first time in our legal history defendants were made liable for damage even though they might not have caused it at all.
+It was not said that the defendants had caused or materially contributed to the harm.
+All that could be said was that each had contributed to the risk of harm.
+In these circumstances it was sensible and fair to apportion liability for the harm in proportion to the contribution that each had made to the risk of harm.
+Lord Rodger of Earlsferry vigorously dissented from the reasoning of the majority and from the result in so far as it apportioned liability.
+He observed at para 71 that the majority were not so much reinterpreting as rewriting the key decisions in McGhee and Fairchild.
+At para 85 he stated that the new analysis that the House was adopting would tend to maximise the inconsistencies in the law.
+I have some sympathy with the observations of Lord Rodger.
+It would, I think, have been possible for the House in Barker to have defined the special approach in Fairchild as one that treated contribution to risk as contribution to the causation of damage.
+The important fact is, however, that the majority did not do so.
+They were at pains to emphasise that the special approach was not based on the fiction that the defendants had contributed to causing the mesothelioma.
+Liability for a proportion of the mesothelioma resulted from contribution to the risk that mesothelioma would be caused and reflected the possibility that a defendant might have caused or contributed to the cause of the disease.
+This was no obiter expression of opinion.
+It formed the basis of the substantive decision that liability was severable and not joint.
+The special rule
+The special approach rendered each employer who had wrongfully exposed a mesothelioma victim to asbestos dust liable for a proportion of the mesothelioma without creating any inference or legal fiction that the employer in question had actually contributed to causing the disease.
+Section 3 of the Compensation Act altered the position by imposing joint and several liability on those who were only severally liable under the special approach.
+Did the special rule that resulted involve a different basis of liability to that which formed the basis of the special approach? This question is considered by Jonathan Morgan in his interesting Chapter 4 of Perspectives on Causation headed Causation, Politics and Law: The English and Scottish Asbestos Saga.
+At p 79 he poses the following question: Has Parliament, by implication, therefore also reversed Lord Hoffmanns principled reinterpretation of Fairchild? Is the nature of Fairchild liability now after all for causing mesothelioma and not increasing risk?
+Mr Morgan gives a negative answer to this question, expressing the view that Barker has altered the jurisprudential basis of the Fairchild liability irrevocably.
+I agree that section 3 of the Compensation Act did not alter the jurisprudential basis of the special approach laid down by the House of Lords in Fairchild and Barker.
+All that it did was to alter the effect of the special approach by making each defendant jointly and severally liable for the whole of the injury sustained.
+Section 3(1) provides that the section applies where (c) because of the nature of mesothelioma and the state of medical science, it is not possible to determine with certainty whether it was the exposure [for which the defendant was responsible]or another exposure which caused the victim to become ill, and (d) the responsible person is liable in tort(whether by reason of having materially increased a risk or for any other reason).
+It is not possible to read section 3 as imposing a different basis of liability to that identified by the majority in Barker.
+The consequence of the special rule
+Having regard to its jurisprudential basis I cannot see how the employers can found upon the special rule as identifying the policy year or years in which a victims mesothelioma is initiated.
+The position is that it is impossible to prove on balance of probability when mesothelioma is initiated, or contracted, or sustained, giving each of those words the same meaning.
+The special rule does not fill the gap for it 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.
+Should this Court redefine the special rule in order to engage the EL policies?
+The special approach of the majority in Barker had the object of ensuring that employers who had wrongfully subjected their employees to asbestos dust should bear what the majority considered to be a fair share of responsibility for their wrongdoing.
+It does not seem likely that the majority gave consideration to the implications for the responsibility of EL insurers of the manner in which this object was achieved.
+Should this Court now redefine the special rule with the object of enabling claims to be brought under the EL policies? This would, I think, involve holding that the majority in Barker erred in their analysis and that the true basis of the special approach in Fairchild was that contribution to risk should be deemed to be contribution to causation.
+I would give a firm No to this question.
+The adoption of the special approach in Fairchild has provoked considerable criticism, both judicial and academic.
+An example of the former is to be found in the judgment of Lord Brown in Sienkiewicz.
+An example of the latter is Mr Morgans closely reasoned Chapter 4 of Perspectives on Causation.
+But the object of the special approach in Fairchild and Barker was at least to ensure that those who had breached the duties that they owed to their employees did not escape liability because of scientific uncertainty.
+It would be judicial law making of a different dimension to create a legal fiction as to the policy years in which cases of mesothelioma were initiated in order to render liable insurers who could not otherwise be shown to be liable.
+The Secretary of State has intervened in this appeal and has submitted that, should the claims of employees or their dependants not be met by insurers, they are likely to be a burden on the public purse.
+It is open to question whether this is a proper consideration, even when considering whether the special rule should be redefined for what are essentially reasons of policy.
+In any event it seems to me that the position is somewhat more complex than the Secretary of State suggests.
+The burden of claims in respect of mesothelioma on a scale that was never anticipated is reducing both employers and insurers to insolvency.
+If this Court were to redefine the special rule so as to impose liability for mesothelioma claims on EL insurers where it could not otherwise be made out, this would in many cases be at the expense of others with claims on the same insurers founded on facts and not legal fictions.
+The liabilities in respect of mesothelioma will increase the overall shortfall on the part of insurers and this is also likely to have implications for the public purse.
+So far as I am concerned, however, these considerations have little relevance.
+Even if there were a compelling case for contending that a means should be found to render EL insurers liable, my reaction would be that this was a matter for Parliament not the courts.
+It would be wrong in principle for this Court to depart from the reasoning of the majority in Barker for the sole purpose of imposing liability on EL insurers.
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+Suppose that a convicted drug trafficker is found to have benefited from his trafficking to the extent of 1m but, having at the time realisable property worth only 100,000, a confiscation order is initially made against him just for this lesser sum.
+Suppose then that the defendant, entirely legitimately, later acquires property to the value of upwards of a further 900,000.
+Is he at that stage liable to a further court order increasing to the full extent of his criminal gain the amount recoverable under the confiscation order by reference to these after acquired assets?
+It is not in doubt that, assuming his offences were committed after 24 March 2003, and that he were therefore subject to the provisions of the Proceeds of Crime Act 2002 (POCA), the answer would be a clear yes see particularly section 22(3) of POCA.
+But what if, as in the case of this appellant, his offences were committed before that date so that he falls to be dealt with under the Drug Trafficking Act 1994 (the 1994 Act), in particular under section 16 of that Act? Section 16, as amended by section 165(1) of, and paragraph 169 of Schedule 9 to, the Powers of Criminal Courts (Sentencing Act 2000, provides: (1) This section applies where, by virtue of section 5(3) of this Act, the amount which a person is ordered to pay by a confiscation order is less than the amount assessed to be the value of his proceeds of drug trafficking. (2) If, on an application made in accordance with subsection (3) below, the High Court is satisfied that the amount that might be realised in the case of the person in question is greater than the amount taken into account in making the confiscation order (whether it was greater than was thought when the order was made or has subsequently increased) the court shall issue a certificate to that effect, giving the courts reasons. (3) An application under subsection 2 above may be made either by the prosecutor or by a receiver appointed in relation to the realisable property of the person in question under section 26 or 29 of this Act or in pursuance of a charging order. (4) Where a certificate has been issued under subsection (2) above the prosecutor may apply to the Crown Court for an increase in the amount to be recovered under the confiscation order; and on that application the court may (a) substitute for that amount such amount (not exceeding the amount assessed as the value referred to in subsection (1) above) as appears to the court to be appropriate having regard to the amount now shown to be realisable; and (b) increase the term of imprisonment or detention fixed in respect of the confiscation order under subsection (2) of section 139 of the Powers of Criminal Courts (Sentencing) Act 2000 (as it has effect by virtue of section 9 of this Act) if the effect of the substitution is to increase the maximum period applicable in relation to the order under subsection (4) of that section.
+Is the High Court, on an application made under section 16(2), entitled to have regard to after acquired assets? That is the critical question now for decision by this court, leave to appeal in respect of it having been granted on 11 April 2011.
+It was a question expressly left open by the House of Lords successively in In re Maye [2008] 1 WLR 315 (see Lord Scott of Foscotes speech at para 24) and R v May [2008] AC 1028 (see Lord Binghams speech at para 41).
+There is, however, a preliminary issue also to be decided: was section 16 in force at the material time?
+With that brief introduction let me sketch in, to the limited extent necessary, the particular facts of the present case.
+On 7 January 1997 the appellant pleaded guilty before Judge Slinger at the Crown Court sitting at Preston to five offences of conspiracy to supply controlled drugs, two offences relating to Class A drugs, three to Class B drugs, all committed in 1995.
+On 8 January 1997 he was sentenced to 12 years imprisonment, reduced on appeal to ten years.
+In confiscation proceedings commenced under the 1994 Act the judge assessed the value of the appellants proceeds of drug trafficking to be 273,717.50 but the amount then realisable to be only 823.
+Accordingly, on 10 July 1997, pursuant to section 5 of the 1994 Act, the judge made a confiscation order for 823 payable within 14 days, an order which was duly satisfied.
+Following his release from prison in November 2000, the appellant went into the property business with his father and acquired very substantial further assets.
+In the light of this change of circumstances, the prosecution sought and obtained from the High Court, initially a restraint order under section 26 (made by Richards J on 18 March 2005) and thereafter a certificate under section 16(2) (issued by Mitting J on 18 May 2005) certifying that the amount that might now be realised was greater than the 823 taken into account when the confiscation order was first made.
+Armed with that certificate the prosecution then applied to the Crown Court under section 16(4) for an increase in the amount to be recovered under the confiscation order.
+On 26 October 2007, following a seven day hearing, Judge Slinger found that the appellant now held realisable assets to the value of 348,315.54 and on 14 November 2007 he exercised his discretion to substitute for the 823 originally recoverable the sum of 273,717.50 (the full value of the appellants proceeds from crime) to be paid within six months, with three years imprisonment in default.
+On 20 February 2009 (for reasons given on 2 April 2009) the Court of Appeal (Criminal Division) dismissed the appellants appeal, brought on the basis that Judge Slinger had over estimated the value of his realisable assets and had failed to take properly into account in the exercise of his discretion the length of time which had elapsed since the appellants release from prison.
+The appellant no longer contends that, in making the order under section 16(4), Judge Slinger exercised his discretion incorrectly.
+Subsequently the prosecution obtained from Pitchford J on 18 December 2009 an order under section 31 of the 1994 Act appointing a receiver with a view to enforcing the revised confiscation order.
+However, in the light of the appellants argument (citing the reservations of the House of Lords in In re Maye and R v May) that Mitting Js section 16(2) certificate, made by reference to after acquired assets, had been issued without jurisdiction, the judge suspended the receivers powers pending a proposed appeal.
+The appellants appeal, brought by leave of Black LJ granted on 30 June 2010, was heard by the Court of Appeal (Arden, Thomas and Etherton LJJ) on 10 November 2010 and dismissed on 20 December 2010.
+Arden LJ gave the only reasoned judgment.
+She regarded the court as bound by an earlier decision of the Court of Appeal (Criminal Division) (judgment given by Rose VP) in R v Tivnan [1999] 1 Cr App R(S) 92 in the prosecutions favour.
+She in any event agreed with it.
+As for the appellants submission that section 16 no longer had effect after POCA came into force on 24 March 2003, Arden LJ regarded it as clearly wrong having regard to the terms of The Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, Savings and Amendment) Order 2003 (SI 2003/333) (the Commencement Order).
+It is convenient, and in any event appropriate, to deal first with the appellants argument that, by the time of Mitting Js section 16(2) certificate, section 16 was no longer in force.
+The Commencement Order
+Unless saved by the transitional provisions of the Commencement Order, it is clear that POCA repealed the relevant sections of the 1994 Act with effect from 24 March 2003.
+One turns, therefore, to article 3 of the Commencement Order headed Transitional Provisions relating to confiscation orders England and Wales and in particular to article 3(1): Section 6 of the Act (making a confiscation order) shall not have effect where the offence, or any of the offences, mentioned in section 6(2) was committed before 24 March 2003.
+Section 6 of POCA (to broadly similar effect as section 2 of the 1994 Act) is the opening section of Part 2 of POCA dealing generally with confiscation orders in England and Wales and it comes into play when two conditions are satisfied, the first (specified by section 6(2)) being that a defendant has been convicted or is being committed to the Crown Court in respect of certain offences.
+The second condition is for present purposes immaterial.
+What, then, is the position where, as here, the relevant offences were committed before 24 March 2003 so that, by virtue of article 3 of the Commencement Order, section 6 of POCA does not have effect? The answer to this is to be found in article 10 of the Commencement Order under the heading Savings for England and Wales: (1) Where, under article 3 . a provision of the Act does not have effect, the following provisions shall continue to have effect . (e) sections 1 to 36 and 41 of the Drug Trafficking Act 1994;
+The appellants contention is that article 3 (and, in turn, article 10) only come into play when not only was the relevant offending before 24 March 2003 but also no confiscation order had by then been made.
+Section 6 of POCA, he submits, is concerned only with the making of a confiscation order, not with any subsequent adjustments, up or down, of the amount payable under it.
+If no confiscation order has been made in respect of pre 24 March 2003 offending, and after that date it appears that such an order may be appropriate, then, since article 3 precludes that happening under section 6 of POCA, article 10 provides that the relevant provisions of the 1994 Act continue to have effect instead.
+These include sections 13 and 14 (concerning respectively the reconsideration of a case where initially the court did not consider making a confiscation order under section 2 and reassessing whether the defendant has in fact benefited from drug trafficking, both therefore predicating that no confiscation order has yet been made).
+Sections 15 and 16, however, (concerning respectively a revised assessment of the proceeds of drug trafficking and an increase in realisable property) would not continue to have effect since both these sections predicate that a confiscation order has already been made.
+Nor, for the same reason, would section 17 (concerning the inadequacy of the defendants realisable property to pay the amount outstanding under a confiscation order) continue to have effect, much though the defendant might wish to invoke it.
+Mr Pownall QC for the appellant accepts that there is no good reason why, in the circumstances he postulates, Parliament should have wished to repeal rather than give continuing effect to sections 15 and 16, still less section 17, of the 1994 Act.
+Construing article 3 as he does, however, namely as applying only to the actual making of confiscation orders and not to other legislative provisions in respect of them, such, he submits, is the (admittedly unsatisfactory) effect of the commencement order.
+The Court of Appeal was to my mind clearly right to reject this argument.
+Section 6 of POCA is the foundational section for the whole confiscation order scheme and article 3, in disapplying it in respect of pre 24 March 2003 offending, is thereby disapplying the entire POCA confiscation order regime, leaving it to article 10, in particular article 10(1)(e), to continue in force the whole confiscation order scheme earlier provided for by the 1994 Act.
+So much for this preliminary issue.
+Does section 16(2) extend to after acquired assets?
+Mr Perry QC for the prosecution submits that section 16(2) is concerned with the amount that might be realised as at the date of the High Court hearing of the application.
+It is couched in the present tense and contains no words of limitation as to time.
+It is thus intended and apt to be operated in any or all of the following four differing (but sometimes overlapping) factual situations: (a) where the defendant concealed assets at the time the confiscation order was originally made (concealed assets); (b) where the assets originally taken into account were initially undervalued (undervalued assets); (c) where the assets originally taken into account have since increased in value (appreciated assets); (d) where, subsequent to the making of the original confiscation order, the defendant has increased his realisable property (after acquired assets).
+The appellant argues that while section 16(2) applies to the first three situations, it does not apply to the fourth.
+It is, I should add, common ground that, with regard to the first three situations, section 16(2) applies no less to different property representing property actually held by the defendant at the time of the original confiscation order as to such property as was originally held.
+So much, indeed, was decided by the House of Lords in In re Maye [2008] 1 WLR 315 which held (with regard to comparable legislation in Northern Ireland) that the appellants interest in his parents unadministered estates (an interest later valued at 18,000) had been a thing in action, and accordingly his property, when the confiscation order had originally been made; and so too an action for damages for false imprisonment, subsequently settled for 2,500.
+In deciding upon the correct construction of section 16(2) the court must, of course, be guided principally by the language of the section itself and by the definition sections in the 1994 Act which bear upon it.
+Section 64 provides that: In this Act the expressions listed below are defined by, or otherwise fall to be construed in accordance with, the provisions of this Act indicated below.
+Amongst the expressions then listed is amount that might be realised, the provision indicated being section 6(1).
+Section 6(1) provides (so far as presently material): For the purposes of this Act the amount that might be realised at the time a confiscation order is made against the defendant is (a) the total of the values at that time of all the realisable property held by the defendant .
+Section 6(2) then defines realisable property to mean (again, so far as presently material) (a) any property held by the defendant .
+Mr Pownalls central submission is that those definition sections require section 16(2) to be construed as if it read: If, on an application made in accordance with subsection (3) below, the High Court is satisfied that the total values of all property held by the person in question at the time the confiscation order is made is greater than the amount taken into account in making the confiscation order (whether it was greater than was thought when the order was made or has subsequently increased) the court shall issue a certificate to that effect, giving the courts reasons.
+For my part I find that a difficult submission.
+The words in section 16(2) falling to be construed in accordance with section 6(1) are not amount that might be realised at the time a confiscation order is made against the defendant but are rather amount that might be realised.
+When, therefore, one comes to section 6(1), which defines the former (longer) rather than the latter (shorter) expression, it seems to me that the meaning of this shorter expression (that in section 16(2) and section 64) is to be found in the part of section 6(1)(a) reading the total of the values . of all the realisable property held by the defendant ie excluding the words at that time which refer back to the time a confiscation order is made against the defendant, words conspicuously absent from section 16(2).
+I would accordingly construe the material words in section 16(2) as if they read: If . the High Court is satisfied that the total of the values of all the realisable property held . is greater than the amount taken into account in making the confiscation order . the court shall issue a certificate .
+In short, nothing in the definition sections requires section 16(2) to be construed for all the world as if it referred to the amount that might have been realised at the time the confiscation order was made.
+On the contrary, it seems to me plainly directed to the amount that might be realised now and by reference to realisable property now held by the defendant.
+As for the words in parenthesis (whether it [the amount that might be realised, as both sides agree] was greater than was thought when the order was made or has subsequently increased) it seems to me that they are designed to encompass all ways in which the amount might have grown and can apply equally to after acquired assets as to concealed assets, undervalued assets or appreciated assets.
+The Court of Appeal in the present case thought that after acquired assets fell for consideration within the first limb of the parenthesis.
+The Court of Appeal in Northern Ireland in In re Maye [2005] NI CA 41; [2006] NI 206 thought rather that they fell within the second limb, as having caused the realisable amount to be subsequently increased.
+For my part I prefer the Northern Ireland view but really it matters not.
+No one suggests that the critical issue now arising can be determined by reference to the words in parenthesis.
+It follows that, as a matter of pure construction of section 16 itself, I prefer Mr Perrys argument.
+There are, however, as it seems to me, other pointers too in the same direction.
+It is, for example, accepted that after acquired assets are properly to be taken into account in the operation of sections 15 and 17 of the Act.
+True it is that, so far as section 15 is concerned, the question is put beyond doubt by subsections 7 and 9.
+But presumably that is because section 15 is directed essentially to revising the assessment of the proceeds of drug trafficking and, but for these subsections, would not appear to involve any recalculation of realisable assets.
+Sections 16 and 17 by contrast are directly concerned with determining the value of the defendants realisable property section 16 to see whether it has increased, section 17 to see whether it has proved to be or has become inadequate to pay the amount outstanding.
+To my mind it is logical that, by the same token that the defendant cannot require his after acquired assets to be ignored in the determination of his present ability to pay, (as was expressly conceded by Mr Pownall both in his written case and in his oral argument although now rather surprisingly Lord Hope suggests an entirely different view of section 17), nor should they be ignored in deciding whether he can pay an additional amount up to the point when he will have disgorged an amount equivalent to all the benefit which has accrued to [him] from drug dealing (per Rose LJ in Tivnan [1999] 1 Cr App R (S) 92, 97).
+The symmetry between sections 16 and 17 is to my mind striking.
+Their sidenotes read respectively: Increase in realisable property and Inadequacy of realisable property.
+Sidenotes, as Lord Hope explained in R v Montila [2004] 1 WLR 3141, paras 33 34, although unamendable and thus carrying less weight than other parts of the Act, can nevertheless properly be considered in the Acts construction.
+Why should realisable property, in one case but not the other, be confined to that held by the defendant at the time of the original confiscation order?
+The Court of Appeal in Tivnan [1999] 1 Cr App R (S) 92, 97 further found support for the prosecutions contended for construction of section 16 in section 9(5) of the 1994 Act: Where the defendant serves a term of imprisonment or detention in default of paying any amount due under a confiscation order, his serving that term does not prevent the confiscation order from continuing to have effect, so far as any other method of enforcement is concerned.
+Although I would not myself place very much weight upon it, I too would regard section 9(5) as at least a straw in the wind: an indication of Parliaments intention that even serving a term in default will not exonerate a defendant from the possibility of eventually having to disgorge assets up to the extent of his criminal gains.
+I also see some force in Mr Perrys argument that Parliament would not willingly have sought to put upon the court the burden of disentangling the value of assets held at the time of the confiscation order from their value at the time of a section 16(2) application.
+Suppose that when the confiscation order was made the defendant had partly completed the manuscript of a novel or a painting which was later completed and then sold for a substantial sum.
+Or suppose that at the time of the confiscation order he was part way to acquiring a statutory right to buy his council house at a favourable price (the factual background to the Court of Appeal (Criminal Division) decision in R v Bates [2007] 1 Cr App R (S) 9).
+Why should the court have to apportion the eventual gain and ignore that part of it acquired subsequent to the confiscation order? Or suppose the defendant wins the lottery.
+Why should it make all the difference whether he bought his ticket the day before or the day after the confiscation order was made? Of course, considerations of this kind cannot be decisive.
+But I see no good reason to ignore them entirely.
+The main argument in support of the appellants case is that it is unfair and counter productive to increase the amount of a confiscation order by reference to after acquired assets.
+This, it is said, would militate against his reform and rehabilitation and be likely to discourage him (once he has satisfied any initial confiscation order and been released from any sentence of imprisonment) from engaging in lawful and openly profitable employment.
+And, of course, the longer after conviction it is sought to confiscate after acquired assets, the more unfair it may appear.
+Such no doubt were the considerations which led the House of Lords in In re Maye [2008] 1 WLR 315 and in R v May [2008] AC 1028 to leave open what Lord Scott in In re Maye, para 24 called this important and difficult question for later decision.
+In the same connection Mr Pownall points to the six year limitation period six years beginning with the date of conviction to which applications under sections 13, 14 and 15 of the 1994 Act are all made subject.
+If the prosecution cannot beyond such six year time limit seek to obtain, or increase the amount payable under, a confiscation order by reference to the defendants gains from drug trafficking, he asks, why should they be entitled to increase the amount payable in respect of such gains by reference to after acquired assets with no limitation of time whatever?
+There seems to me, however, nothing in this latter point.
+It is plain that section 16 contains no limitation period, yet no one disputes that it can be invoked without limit of time in respect of concealed, undervalued or appreciated assets.
+The absence of a limitation period, therefore, tells one nothing about whether section 16 applies also to after acquired assets.
+The reason for introducing a six year time limit into sections 13, 14 and 15 must surely be to establish a finite period for determining the full extent of a defendants criminal gains the ultimate ceiling for any confiscation order.
+These sections fix the extent of a defendants criminal liability for disgorgement under the confiscation scheme; sections 16 and 17 go to the very different question as to how far this liability is required to be met.
+As for the main argument, based on fairness and rehabilitation, naturally I recognise that Parliament could have chosen a different policy with regard to after acquired assets.
+But it seems to me perfectly understandable that in fact Parliament decided (as indisputably it did when later enacting POCA) to leave it open to the courts as a matter of discretion to mulct a defendant of his criminal gains on an ongoing basis irrespective of precisely how and when he came by any increased wealth.
+That the court does indeed have a discretion in the matter is plain both from the wording of section 16(4) and from a number of authorities, notably In re Saggar (Confiscation Order: Delay) [2005] 1 WLR 2693; R v Bates [2007] 1 Cr App R (S) 9; and R v Griffin [2009] 2 Cr App R (S) 587.
+This is not, however, the occasion to explore the approach to the proper exercise of that discretion or, indeed, the question whether its exercise could ever be affected by considerations arising under the Human Rights Act 1998.
+As already noted, there is no challenge here to the exercise of the Crown Courts section 16(4) discretion, only to whether the section 16(2) certificate was lawfully issued.
+In my judgment the section 16(2) certificate here was lawfully issued: the section requires that after acquired assets are properly to be taken into account.
+In common, therefore, with Lord Walker and Lord Wilson, with both of whose judgments I am in full agreement, I too would dismiss this appeal.
+LORD WALKER
+On the first issue in this appeal the court is unanimous, and I need say no more than that I agree with the reasoning and conclusions of Lord Brown (with whom Lord Wilson agrees) and Lord Hope (with whom Lady Hale agrees).
+But on the second issue there is division.
+I agree with Lord Browns reasoning and conclusions of Lord Brown and Lord Wilson and I respectfully disagree with Lord Hopes.
+I shall set out my reasons as briefly as possible.
+On the second issue Lord Hope takes as his starting point the well established principle of statutory construction that property rights are not to be taken away without compensation unless Parliaments intention to expropriate them has been expressed in clear and unambiguous terms.
+The principle is in no doubt.
+But the statutory purpose of the Drug Trafficking Act 1994 (the 1994 Act), and similar statutes, could hardly have been made clearer.
+As Lord Steyn observed in relation to Part VI of the Criminal Justice Act 1998 in R v Rezvi [2003] 1 AC 1099, 1152, para 14: It is a notorious fact that professional and habitual criminals frequently take steps to conceal their profits from crime.
+Effective but fair powers of confiscating the proceeds of crime are therefore essential.
+The provisions of the 1988 Act are aimed at depriving such offenders of the proceeds of their criminal conduct.
+Its purposes are to punish convicted offenders, to deter the commission of further offences and to reduce the profits available to fund further criminal enterprises.
+These objectives reflect not only national but also international policy.
+The United Kingdom has undertaken, by signing and ratifying treaties agreed under the auspices of the United Nations and the Council of Europe, to take measures necessary to ensure that the profits of those engaged in drug trafficking or other crimes are confiscated: see the United Nations convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (19 December 1988); Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, Strasbourg, 8 November 1990.
+These Conventions are in operation and have been ratified by the United Kingdom.
+There are numerous other authoritative statements to the same effect.
+It is sufficient to refer to the observations of Lord Bingham in McIntosh v Lord Advocate [2003] 1 AC 1078, para 4 and in R v May [2008] AC 1028, paras 7 to 9.
+Once it is recognised that Parliament certainly did intend to strip those convicted of serious crimes of the proceeds of their wrongdoing, the force of the general principle of construction is considerably attenuated.
+Of course the fact remains that the 1994 Act is a statute of a penal nature, and its detailed provisions must be closely considered and fairly applied.
+But I am not persuaded that the linguistic points mentioned by Lord Hope in paras 60 to 67 of his judgment raise any real doubt, so as to enable the appellant to be given the benefit of that doubt.
+Before considering these detailed points I would draw attention to an ambiguity in the expression after acquired property which may lead to confusion (as it did in R v Maye [2008] 1 WLR 315, an appeal from Northern Ireland which must be distinguished from R v May [2008] AC 1028).
+A newly acquired asset may be obtained in place of another asset in numerous ways: for instance, by making changes in a portfolio of investments, or by remortgaging a house in order to pay the deposit on a second house, or by receiving cash on the surrender or maturity of a life policy.
+These may be termed substituted assets but they are not after acquired property in the relevant sense, that is property accruing to a person (whether as earnings or by gift, inheritance or some other windfall) without a corresponding diminution in that persons existing assets.
+All this is elementary and was explained by Lord Scott in R v Maye. (The distinction is clearest in the law of personal insolvency.
+Under section 307 of the Insolvency Act 1986 an undischarged bankrupts trustee in bankruptcy can give notice causing after acquired property of the bankrupt to vest in him.
+This necessarily means after acquired property in the full sense, since assets acquired by any sort of process of exchange would necessarily already belong to the trustee.)
+Section 6 of the 1994 Act explains the meaning of the amount that might be realised when a confiscation order is made.
+Section 6(1)(a) shows that it is an aggregate value: The total of the values at that time of all the realisable property held by the defendant, subject to adjustment in two ways that are not now material.
+The plural form values indicates, as one would expect, that separate items of property are to be identified and valued.
+Section 6(1) expressly focuses on the time when a confiscation order is made.
+Section 6(3), referring to various coercive orders that may be made under penal statutes, does not have the same explicit focus.
+If the language of section 6(1) has to be adapted to valuation at a later time, as sections 16 and 17 plainly require, I see no reason why section 6(3) should not be adapted in the same way.
+In paras 63 and 64 Lord Hope refers to section 15(7) and (9) of the 1994 Act.
+Section 15 is concerned with reassessing the proceeds of drug trafficking as determined (in the normal course) under the provisions of sections 2 and 4.
+It is a central feature of the legislation that under section 2(4) (and apart from the special procedure for postponed determinations under section 3) the determination of the amount to be recovered is to be made under section 4 (assessing the proceeds of drug trafficking) and section 5 (amount to be recovered under confiscation order) before the convicted defendant is sentenced.
+A reassessment of the proceeds of drug trafficking is therefore a major step and subsections (6) to (14) of section 15 are required in order to spell out the detailed changes in the statutory procedure needed to make the process of reassessment workable.
+Section 16 is concerned, as Lord Hope observes, with the other part of the formula defining the quantum of any varied confiscation order.
+Section 16 (and its counterpart, section 17) are less complicated because the amount of the proceeds (whether as assessed before the original confiscation order was made, or as reassessed under section 15) are by then a given, and section 16 is unmistakeably looking at the matter at the time of the application under that section.
+Section 16(2) provides: If . the High Court is satisfied that the amount that might be realised . is greater than the amount taken into account in making the confiscation order.
+The section then has a parenthesis with two loosely framed alternatives (Whether it [the amount] was greater than was thought when the order was made or has subsequently increased).
+The amount is, as already noted, an aggregate value of separate items of property which must be first identified and then valued.
+The past tense of the words was greater is surprising but I do not think anything can turn on it.
+It would be odd, to my mind, if separate items of realisable property were to be identified at one date (that of the original confiscation order) but valued at another (the date when the section 16 application is heard).
+I agree with Lord Hope that it is not necessary to read section 16 as extending to after acquired assets in order to give it some sensible meaning.
+But if after acquired property is excluded, difficult problems of identification and tracing are likely to arise, especially if the individual in question has engaged in business activities highly geared by borrowing, such as those of which the appellant gave evidence.
+Had Parliament intended to draw a distinction between substituted assets and after acquired assets it could easily have made its intention clearer.
+Neither side made any submission as to the effect of section 7(3) of the 1994 Act.
+In relation to section 17 Lord Hope does not accept the submission of Mr Perry QC as to his construction producing symmetry between section 16 (increase in realisable property) and section 17 (inadequacy of realisable property).
+Lord Hopes point (though not put quite so bluntly) is that this argument begs the question in that it makes the unreasoned assumption that for the purposes of section 17 after acquired property must be taken into account.
+But in my opinion there are sound reasons for approaching the question of symmetry on that basis.
+Under section 17 a convicted criminal subject to a confiscation order is asking to be released from his obligation.
+The justification for section 17 is that not even the worst offender should be sent to prison for an additional term if he is simply incapable of complying with his obligation under an existing order.
+If he can comply with it out of his after acquired assets, he should be required to do so.
+For these reasons, and for the fuller reasons set out in the judgments of Lord Brown and Lord Wilson, I would dismiss this appeal.
+LORD WILSON
+I agree with Lord Brown and Lord Walker that the appeal should be dismissed.
+On the first issue I wish to add nothing to Lord Browns judgment.
+On the second issue I add this judgment only because the other four members of the court are evenly divided.
+I consider that a natural reading of section 16(2) of the 1994 Act yields the conclusion that after acquired assets fall to be taken into account upon applications to the High Court and thereafter to the Crown Court under the section.
+There is in my view a fallacy at the heart of the construction which Mr Pownall QC presses upon the court.
+The inquiry of the High Court is whether the amount that might be realised is greater than another specified and easily identified amount.
+Mr Pownall is right to say that, in the construction of the quoted phrase, section 64 sends the court back to section 6.
+But then comes his misconstruction.
+Section 6 provides that the amount that might be realised at the time a confiscation order is made. is. the total of the values at that time of all the realisable property held by the defendant subject to adjustments.
+But the two references to the time when a confiscation order is made form no part of the meaning of the phrase.
+The draftsman of the section is doing no more than to apply the meaning of the phrase, viz the total of the values. of all the realisable property held by the defendant, to the particular time which section 6 is designed to address.
+The particular time which, by contrast, section 16(2) is designed to address is the time of the application made thereunder: is the amount that might be realised greater than the other specified amount? In my view, moreover, Mr Pownalls construction does not work if only because it is common ground that, in relation to pre acquired assets, the inquiry is into their value at the time of the application rather than their value at the time when the confiscation order was made.
+So I find nothing in section 16(2) to suggest an exclusion of after acquired assets.
+On the contrary I consider that the words in parenthesis confirm their inclusion.
+The words are whether [the amount that might be realised] was greater than was thought when the order was made or has subsequently increased.
+The Court of Appeal relied on the first alternative whereas I consider that the relevant alternative is the second.
+The use of the aorist tense (was) in the first alternative requires the court to survey pre acquired assets, in particular when hidden or undervalued at the time when the confiscation order was made, and to assess their true value at that time.
+But the use of the perfect tense (has increased) in the second alternative requires the court to survey any increase up to the date of its inquiry in the amount that might be realised, not just because of a rise in the value of the pre acquired assets.
+A second obvious reason for such an increase is the acquisition of assets after the date of the confiscation order.
+Sections 16 and 17 of the 1994 Act are opposite sides of the same coin.
+Their side notes describe their subject matter as increase in realisable property and inadequacy of realisable property respectively.
+Both sections address the situation in which, pursuant to section 5(3), the court has ordered that the amount to be recovered from the defendant is the amount that might be realised rather than the higher amount of his proceeds of drug trafficking and in which, subsequently, the prosecution and the defendant wish to argue that the ordered amount should then be seen to be too low or too high respectively and be adjusted accordingly.
+There was no issue before this court but that, on an application by the defendant under section 17, the High Court should survey the present value of all the defendants property, whether acquired before or after the making of the confiscation order.
+Such was decided by the Court of Appeal, Civil Division, in In re ODonoghue [2004] EWCA Civ 1800 in relation to a provision, namely section 83(1) of the Criminal Justice Act 1988, in substantially identical terms.
+It would be surprising if the courts survey under section 16 lacked the same width.
+Section 16 does not oblige the Crown Court to order an increase in the amount of the confiscation order (which is subject in any event to the ceiling of the assessed value of the defendants proceeds of drug trafficking) in parallel with its assessment of the amount of the increase in the defendants realisable property.
+Subsection (4) confers on it a discretion to order such lesser increase as appears to the court to be appropriate having regard to the amount now shown to be realisable.
+It is clear from the decision of the Court of Appeal, Criminal Division, in R v Bates [2006] EWCA Crim 1015, [2007] 1 Cr App R (S) 9, at paras 12 and 13, that factors such as the defendants abandonment of a life of crime, the legitimate nature of his acquisition of the assets, the passage of time since the confiscation order was made and matters of exceptional hardship may be relevant to the exercise of the discretion.
+Such is in my view the area which Parliament has provided for the court to make allowance for the type of factors which, as is clear in para 59, Lord Hope instead prefers to weigh in his approach to the exercise of construction.
+I agree with the observation of Lord Hope, at para 61 below, that, in the exercise of construction, broad generalisations about the purpose of the 1994 Act are to be avoided.
+That is why, in my respectful view, there may be pitfalls in an approach founded first upon a proposition that the Act is not designed to provide for confiscation in the sense in which schoolchildren and others understand it (para 57) or in the popular sense (para 58) and then upon a conclusion that the respondents construction of section 16 would provide for confiscation in such senses.
+Nor do I agree that a rule of construction apt to a provision which expropriates property without compensation should be applied to a provision designed to extract from a defendant a sum which cannot exceed the value of his proceeds of drug trafficking.
+In my view the most arguable point in favour of the appellants construction of section 16(2) is that Parliament could have made it clearer or, as I prefer to say, even clearer that after acquired assets were to be included.
+In this regard a contrast is fairly made with section 22(3) of the Proceeds of Crime Act 2002 and, in particular, with section 15(7) and (9)(c) of the 1994 Act itself.
+But then Parliament could have made it clearer or, as I prefer to say, would have made it clearer had such been its intention that after acquired assets were to be excluded.
+So, albeit that it is the most arguable, the point fails in my mind to deflect the force of the arguments in support of their inclusion which I have sought to articulate.
+LORD HOPE (with whom Lady Hale agrees)
+I agree with Lord Brown, for the reasons he gives, that section 16 of the Drug Trafficking Act 1994 was in force on 18 May 2005 in relation to existing confiscation orders such as those which were made against the appellant on 10 July 1997 when Mitting J issued his certificate under that section.
+Section 6 of the Proceeds of Crime Act 2002 sets out the basic framework for the making of a confiscation order under the 2002 Act.
+Article 3(1) of the Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, Savings and Amendment) Order 2003 provides that section 6 of the 2002 Act shall not have effect where the offence, or any of the offences, mentioned in section 6(2) was committed before 24 March 2003.
+There is therefore a clear dividing line between the 1994 Act on the one hand and the 2002 Act on the other as to the date when the scheme of the 1994 Act was to cease to apply and the scheme of the 2002 Act was to take effect.
+It would be surprising, however, if article 3(1), which is in the widest terms, was intended to prevent the courts from increasing the amount to be recovered under a confiscation order that was made under the 1994 Act where it turns out after the scheme of the 2002 Act has come into operation that the real value of the proceeds of drug trafficking was greater than the assessed value, or that there was an increase in the defendants realisable property.
+That these contingencies, which sections 15 and 16 of the 1994 Act provided for, were not overlooked becomes plain when the Commencement Order is read as a whole.
+Article 10(e) states that, where under article 3, a provision of the 2002 Act does not have effect, sections 1 to 36 and 41 of the 1994 Act shall continue to have effect.
+These words ensure that the scheme of the 1994 Act is preserved in relation to persons such as the appellant whose offences were committed before 24 March 2003.
+It is worth noting, as Lord Brown points out at the end of para 14, that the scheme of the 1994 Act contains, in section 17, a provision that is designed to operate in favour of a defendant unlike sections 15 and 16 which are available to be invoked against him by the prosecutor.
+That provision is available where the defendants realisable property is inadequate to enable him to satisfy the terms of the confiscation order.
+The court can, if satisfied that this is the situation, substitute a different amount as the amount to be recovered under it.
+But for that provision, defendants in the situation that it refers to would be exposed to the risk of a prison sentence for failing to meet the terms of the confiscation order.
+The need to preserve the protection that it gives to the defendant is not one which the draftsman of the Commencement Order is likely to have overlooked.
+Mr Pownall QC for the appellant submitted, however, that the saving provision in article 10 applied only to orders made after 23 March 2003 by virtue of sections 13, 14 or 19 of the 1994 Act.
+This was because orders made under those sections were confiscation orders within the meaning of section 2(9) of the 1994 Act, not variations of existing confiscation orders.
+He acknowledged that Parliament was unlikely to have wanted to prevent a defendant whose confiscation order was made before that date from applying for relief under section 17, and he was unable to suggest any good reason for supposing that it was Parliaments intention to exclude the application of sections 15 and 16 in such a case either.
+But he said that the wording of the Commencement Order was clear and that article 3(1) was to be read narrowly according to its own terms.
+Its effect, in a case such as this, was that section 22 of the 2002 Act which provides for the making of a fresh order on reconsideration of the available amount could not apply, as it was available only in the case of orders made under section 2 of that Act and those referred to in section 2(9).
+The answer to this submission is, as I have already indicated, that article 3 does not stand alone.
+It has to be read in the context of the Commencement Order as a whole.
+Article 10(e) of the Order says all that is needed to preserve the scheme that was comprised in sections 1 to 36 of the 1994 Act.
+Its effect is to fill the gap that would have been created if those sections were not to continue to be available where the offence was committed before 23 March 2003.
+As sections 15 to 17 were part of that scheme, they remain available.
+I would hold that the appellant fails on this issue.
+The more difficult question is whether section 16(2) of the 1994 Act extends to after acquired assets in the full sense of that expression as explained by Lord Walker in para 35.
+The difficulty lies partly in the wording of that subsection, which is framed in general terms and does not address this question directly, and partly in the nature of the exercise that, on the respondents construction of it, the court is required to carry out.
+In R v May [2008] AC 1028, para 9 Lord Bingham of Cornhill said the process for which the statute provides is not confiscation in the sense in which schoolchildren and others understand it.
+This was because the object is to deprive the criminal who has benefited financially from crime, directly or indirectly, of what he has gained: see also para 48(1) where he added that the system does not operate by way of a fine.
+He had already made that point in McIntosh v Lord Advocate [2003] 1 AC 1078, para 4, where he said that one of the important premises on which the Proceeds of Crime (Scotland) Act 1995 rested was that it was desirable to deprive traffickers of their ill gotten gains.
+Lord Steyn in R v Rezvi [2003] 1 AC 1099, para 14 said that the measures that the United Kingdom had undertaken to take by signing and ratifying the relevant treaties was to ensure that the profits of those engaged in drug trafficking are confiscated.
+I do not find anything in these observations that suggests that they had mind the problem raised by this case.
+The respondent says that the object of the scheme of which section 16 forms part is to deprive the defendant of realisable assets whether or not they consist of after acquired assets in the full sense, albeit not exceeding the value of the benefit received from his offending.
+He points out that, when proceeding under section 6 of the 1994 Act, the court was required to assess the amount that might be realised at the time the confiscation order was made by having regard to all assets, irrespective of whether they were acquired by criminal conduct or legitimate means.
+The amount to be recovered was not limited to the product of the defendants criminal enterprise.
+But it seems to me that if legitimate after acquired assets were to be included too, this would indeed amount to their confiscation in the popular sense.
+It seems to be clear that the effect of reading section 16(2) of the 1994 Act in that way could be to penalise a defendant for the efforts of his own enterprise and hard work after he is released from custody.
+That objection can indeed be made in this case.
+The appellant was released from prison in November 2000.
+There is no suggestion that the increase in the value of his assets that has accrued since then has had anything to do with his previous offending.
+The assumption must be that the assets that he has acquired as a result of his business activities are entirely legitimate.
+I think that to deprive him of the increase can properly be described as confiscation.
+This is the kind of situation that, according to well established principles, ought not to be assumed to have been what Parliament intended unless it provided for this in clear terms.
+Section 22(3) of the 2002 Act, which states that the court must apply the available amount provision in section 9 when that amount is being recalculated under it as if references to the time the confiscation order is made were to the time of the new calculation, does satisfy this test.
+There is no doubt that the solution which section 22(3) has adopted meets the problems of identification and tracing if after acquired property is excluded to which Lord Walker refers in para 39.
+The question is whether the same result was achieved by section 16(2), which lacks a clear direction to that effect.
+The general principle of construction is that a statute should not be held to take away property rights without compensation unless the intention to do so is expressed in terms which are clear and unambiguous: Colonial Sugar Refining Co Ltd v Melbourne Harbour Trust Comrs [1927] AC 343, 359, per Lord Warrington of Clyffe.
+As Lord Reid explained in Westminster Bank Ltd v Beverley Borough Council [1971] AC 508, 529, this principle flows from the fact that Parliament seldom intends to do that, and that before attributing such an intention we should be sure that it was really intended.
+But he added this qualification to the way the principle was expressed by Lord Warrington: When we are seeking the intention of Parliament that may appear from express words but it may also appear by irresistible inference from the statute read as a whole.
+But I would agree that, if there is a reasonable doubt, the subject should be given the benefit of the doubt.
+There is no hint here that this principle should be attenuated according to the impression one forms as to whether or not the subject deserves, or does not deserve, to be given that benefit.
+It is a principle of universal application.
+Its force would be greatly weakened if it were otherwise.
+Lord Bingham was, I think, making the same point in R v May [2008] AC 1028 when, in the course of his description of the principles to be followed by those called upon to exercise this jurisdiction in the future, he said in para 48, under item (4) of his list, that in view of its importance and difficulty the court should focus very closely on the language of the statutory provision in question and in the light of any statutory definition.
+We are not concerned in this case with his warning to avoid being distracted by proliferating case law or any judicial gloss or exegesis, as the question which we have to address here was left open both in R v May and in In re Maye [2008] 1 WLR 315.
+But his advice that guidance should be sought in the statutory language itself is very much in point in this case.
+Broad generalisations as to what the legislation was designed to achieve will not do.
+One must concentrate on the words that were used by Parliament.
+The wording that the head note to section 16 uses is Increase in realisable property.
+The expression realisable property is defined in section 6(2) of the Act: see the index of defined expressions in section 64.
+Section 6(1) states that for the purposes of the Act an amount that might be realised at the time a confiscation order is made against the defendant includes, among other things, the total of the values at that time of all the realisable property held by the defendant.
+It is in that context that section 6(2) provides: In this Act realisable property means, subject to subsection (3) below (a) any property held by the defendant; and (b) any property held by a person to whom the defendant has directly or indirectly made a gift caught by this Act.
+Section 6(3) provides that property is not realisable property if an order made under various Acts which provide for the forfeiture of property is in force in respect of it.
+The context in which the definition appears directs attention to the time that the confiscation order is made.
+It does not appear to contemplate the carrying out of the exercise that section 6(1) refers to at any later date.
+Mr Pownalls argument that the expression realisable property has nothing to do with after acquired property is reinforced by the presence in section 15, which deals with the revised assessment of the proceeds of drug trafficking, of subsections (7) and (9)(c).
+Section 15(7) provides: Any determination under section 2(4) of this Act by virtue of this section shall be by reference to the amount that might be realised at the time when the determination is made. [emphasis added] Section 15(9)(c) provides that section 6(1) of the Act shall have effect as if for confiscation order is made there were substituted of the determination.
+These modifications would not have been required if the expression the amount that might be realised in section 6(1), read together with section 6(2), was capable of embracing assets acquired after the date when the confiscation order was made.
+Section 15 is concerned with the amount assessed to be the value of the defendants proceeds of drug trafficking.
+Section 16 is concerned with the other part of the formula that defines the amount to be recovered under the compensation order, as the head note makes clear.
+In contrast to what one finds in sections 15(7) and 15(9)(c), there is no indication that in this context the date as at which the realisable property held by the defendant is to be identified, for the purpose of assessing the amount that might be realised by it, is different from that as at which the exercise directed by section 6(1) was carried out.
+The fact that recourse to the court under section 16 is not subject to any time limit, unlike section 15(15) which imposes a six year time limit on applications for a revised assessment of the proceeds, adds weight to this argument.
+It is not inconceivable that it was the intention that assets acquired legitimately many decades after the making of the confiscation should enable the recoverable amount to be recalculated and it can, of course, be said that there are no words that exclude after acquired property.
+But the confiscatory nature of the exercise requires us to be satisfied that this was what Parliament really intended and to give the benefit of the doubt to the defendant if we are not.
+Moreover, it is not necessary to read section 16 as extending to after acquired property to make sense of it.
+Mr Perry QC for the respondent accepted that section 16 can be invoked where the defendant concealed assets at the time of the confiscation order, or where the assets that were originally taken into account were undervalued when the order was made or where they have increased in value.
+The presence of the words in parenthesis in section 16(2), which contemplate that the amount that might be realised was greater than was thought when the order was made or has subsequently increased, is sufficiently explained by those three situations.
+They do not point irresistibly to the conclusion that after acquired assets may be taken into account too when the court is determining the amount that might be realised under that section.
+Section 17 deals with the problem which arises where the realisable property is inadequate for the payment of any amount remaining to be recovered under the compensation order.
+It was said by Mr Perry to support his argument that section 16 extended to after acquired property.
+There was, he said, a symmetry between the two sections which enabled the court to have regard to the defendants assets as a whole when it was making its assessment.
+There is an obvious symmetry if the cause of the problem is that the assets that were originally taken into account were overvalued at that time or that they have decreased in value.
+In either of these situations the property that was taken into account as realisable property within the meaning of section 6(2) would be incapable of providing the defendant with the funds needed to meet the terms of the confiscation order.
+So means are provided for an adjustment to be made to take account of this.
+There is obvious force in the point that Lord Walker makes in para 41 that the offender should not be excused from his prison sentence if he can comply with the terms of the existing order.
+But there is no indication in section 17 that any assets that the defendant may have acquired after the making of the compensation order have any part to play in this assessment.
+The fact that it uses the defined expression realisable property (which section 6(2), read with the direction in section 64 as to how these words are to be construed, identifies as the assets held by the defendant at the time of the making of the confiscation order) to identify the subject matter of the exercise is an indication to the contrary.
+The symmetry argument might, indeed, be said to support the conclusion that section 16 is no more concerned with after acquired property than, on this reading of it, is section 17.
+Section 23(2) of the 2002 Act solves this problem, as does section 22(3), by making it clear in express terms that the available amount is to be re assessed at the time of the new calculation.
+It is perhaps worth noting that the author of the unusually detailed annotations to the 1994 Act in Current Law Statutes included the following sentence in his general note on section 16: Note that this section does not apply to property which comes into the possession of the defendant after the order is made.
+No reasons are given for this observation.
+But this may be because the annotator, who had studied the background to this enactment in great detail, regarded the point as so obvious as not to require any explanation.
+In any event, it is of some interest that this was what a contemporary writer understood to be the effect of the section.
+For the reasons I have given, I do not think that it is self evident that he was wrong.
+A contrast can, no doubt, be drawn between the phrase the amount that might be realised in section 16(2) and the phrase the amount that might be realised at the time a confiscation order is made in section 6(1).
+As Lord Brown says in para 21, the words at the time a confiscation order is made are conspicuously absent from the phrase used in section 16(2).
+It can also be said that section 16(2) does not in terms confine its attention to what, as defined by section 6(2), is realisable property.
+But, as the head note to section 16 indicates, the exercise that it contemplates is concerned only with an increase in the value of realisable property, which is a defined expression.
+None of the language that it uses is unworkable on that assumption.
+I do not think that the other factors that Lord Brown so helpfully refers to in his judgment carry much weight.
+I do not see that section 9(5) of the 1994 Act, to which the Court of Appeal in R v Tivnan [1999] 1 Cr App R (S) 92 attached some importance, as providing any guidance as to what Parliament intended in a case where a defendant who was in default had acquired more assets after the date of the making of the confiscation order.
+All one can say is that the purpose of the terms imposed in default of payment is to encourage or coerce payment of the sum due under the order.
+They are not imposed as a substitute for payment.
+So it makes sense for the order to continue to have effect, for what it may be worth.
+I have not found this an easy question to answer, and I confess that my initial impression was that Mr Perry was right and, as there was no express direction to the contrary, that the High Court was entitled under section 16 to have regard to after acquired assets in determining the amount that might be realised.
+But, on further reflection, I have concluded that the proper approach is that indicated by Lord Reid in Westminster Bank Ltd v Beverley Borough Council [1971] AC 508, 529.
+Before attributing such an intention to Parliament we have to be sure that this is what it really intended.
+The section, in contrast to what one finds in section 15, does not say this expressly, and I am unable to say that such an intention appears by irresistible inference when the statue is read as a whole.
+I cannot, with the greatest of respect, agree with Lord Walker that the linguistic points that I have mentioned do not raise any real doubt.
+In my opinion there is such a doubt, and the benefit of the doubt must go to the appellant.
+For these reasons I would allow the appeal and set aside the section 16(2) certificate.
diff --git a/UK-Abs/train-data/judgement/uksc-2011-0031.txt b/UK-Abs/train-data/judgement/uksc-2011-0031.txt
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+++ b/UK-Abs/train-data/judgement/uksc-2011-0031.txt
@@ -0,0 +1,795 @@
+The liability of employers for deaths caused by mesothelioma has pre occupied courts and legislators over recent years.
+The present appeals concern claims to pass the burden of this liability on to insurers, made either by employers or in the case of insolvent employers by the personal representatives of former employees using the mechanism of the Third Party (Rights against Insurers) Act 1930.
+The appeals concern employers liability insurance.
+This is in contrast with Bolton MBC v Municipal Mutual Insurance Ltd [2006] EWCA Civ 50, [2006] 1 WLR 1492 where public liability insurance was in issue.
+Employers liability focuses necessarily upon the relevant employment relationships and activities.
+Public liability relates to any of the insureds relationships and to activities affecting the world at large.
+Another feature of employers liability is that, under the Employers Liability (Compulsory Insurance) Act 1969 (the ELCIA), it has since 1 January 1972 been compulsory for every employer other than local authorities carrying on any business in Great Britain to insure, and maintain insurance, under one or more approved policies with an authorised insurer or insurers against liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment in Great Britain in that business, but except in so far as regulations otherwise provide not including injury or disease suffered or contracted outside Great
+Britain
+The appeals arise because the relevant insurers maintain that the employers liability insurances which they issued respond (or, better, could only have responded) to mesothelioma which developed (or, possibly, manifested itself) as a disease during the relevant insurance periods all long past.
+In contrast, the relevant employers and personal representatives maintain that the insurances respond to mesothelioma which develops and manifests itself later; all that is required, they say, is exposure of the victim during the insurance period to asbestos in circumstances where the law attributes responsibility for the mesothelioma to such exposure.
+These alternative bases of response (or triggers of liability) have been loosely described as an occurrence (or manifestation) basis and an exposure (or causation) basis.
+It is in issue whether the ELCIA, after it came into force, mandated any particular basis of response.
+A secondary issue, arising if the insurances only respond on an occurrence basis, is whether the aetiology of mesothelioma justifies a conclusion that there was during the relevant insurance period an occurrence sufficient to trigger liability under the insurances.
+Burton J, [2008] EWHC 2692 (QB), concluded that the relevant insurances all responded on an exposure basis.
+The Court of Appeal, [2010] EWCA Civ 1096, by a majority (Rix and Stanley Burnton LJJ), upheld the judge in relation to some of the insurances (particularly those covering disease contracted during the relevant insurance period); but they concluded that others (particularly those covering disease sustained during the insurance period) responded only on an occurrence or manifestation basis.
+Smith LJ would have upheld the judges judgment in its entirety.
+The full judgments in both courts repay study.
+They have been of great assistance to this court and make it possible to go directly to the heart of the issues.
+Mesothelioma is a hideous disease that is inevitably fatal.
+In most cases, indeed possibly in all cases, it is caused by the inhalation of asbestos fibres: Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10, [2011] 2 AC 229, para 1, per Lord Phillips.
+It is a cancer of the pleura, which are thin linings around the lungs and on the inside of the rib cage.
+It is usually undetectable until shortly before death.
+Its unusual features include what Burton J in this case at para 30 described as the unknowability and indescribability of its precise pathogenesis.
+In particular, it is impossible to know whether any particular inhalation of asbestos (at least any occurring more than ten or so years prior to diagnosability) played any or no part in such development.
+Because of this unusual feature, the law has developed a special rule.
+The special rule was the product of judicial innovation in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32 and in Barker v Corus UK Ltd [2006] UKHL 20; [2006] 2 AC 572.
+It was modified by statutory intervention in the form of the Compensation Act 2006, section 3.
+Leaving aside exposures occurring within the ten or so years prior to diagnosability, the rule can now be stated as being that when a victim contracts mesothelioma each person who has, in breach of duty, been responsible for exposing the victim to a significant quantity of asbestos dust and thus creating a "material increase in risk" of the victim contracting the disease will be held to be jointly and severally liable in respect of the disease.
+Burton Js findings in the present case justify certain further propositions, mostly also corresponding with the summary in Lord Phillips judgment in Sienkiewicz (para 19): (i) A significant proportion of those who contract mesothelioma have no record of occupational exposure to asbestos.
+The likelihood is that (vi) in their case the disease results from inhalation of asbestos dust that is in the environment.
+There is, however, a possibility that some cases of mesothelioma are "idiopathic", i.e. attributable to an unknown cause other than asbestos. (ii) The more fibres that are inhaled, the greater the risk of contracting mesothelioma. (iii) There is usually a very long period between the exposure to asbestos and the development of the first malignant cell.
+Typically this can be at least 30 years. (iv) For a lengthy period (perhaps another five years) after the development of the first malignant cell, there remains a possibility of dormancy and reversal, but at a point (Burton J thought a further five years or so before the disease manifested itself, and was thus diagnosable) a process of angiogenesis will occur.
+This involves the development by malignant cells of their own independent blood supply, so assuring their continuing growth. (v) The mechanism by which asbestos fibres cause mesothelioma is still not fully understood.
+It is believed that a cell has to go through 6 or 7 genetic mutations before it becomes malignant, and asbestos fibres may have causative effect on each of these.
+It is also possible that asbestos fibres have a causative effect by inhibiting the activity of natural killer cells that would otherwise destroy a mutating cell before it reaches the stage of becoming malignant.
+Mesothelioma currently claims about 3000 lives a year in the United Kingdom.
+This speaks to the common use of asbestos materials up to the 1960s and 1970s.
+In Annex I to his judgment Rix LJ set out the insuring clauses of the various forms of policy wording in use from time to time.
+Subject to re ordering to reflect the development of the language, Annex A to this judgment includes the same and some further wording.
+It can be seen that the Excess policies and the first two MMI policies promise to indemnify the insured employer against liability if at any time during the period of insurance (or of any renewal) any employee shall sustain under the earlier policies personal injury by accident or disease or under the later policies [any] bodily injury or disease in the case of the first Excess policy while engaged in the service of the Employer or in other cases arising out of and in the course of [his] employment by the insured employer.
+In the case of the Independent policy, the insurer, under the recital, promised to indemnify the employer during the period of insurance or of any renewal.
+The insuring clause itself contains no express limitation to any period.
+It promises indemnity against all sums for which the employer shall be liable for damages for such injury or disease if any employee shall sustain bodily injury or disease arising out of and in the course of his employment by the Insured in connection with the Contract specified or type of work described in the Schedule.
+The third MMI policy and the BAI policies were in more developed form.
+The former promises indemnity in respect of legal liability for sums payable as compensation for bodily injury or disease (including death resulting from such bodily injury or disease) suffered by any employee when such injury or disease arises out of and in the course of employment by the Insured and is sustained or contracted during the currency of this Policy.
+The latter promised indemnity against all sums which the Insured may become liable to pay to any Employee . in respect of any claim for injury sustained or disease contracted by such Employee during the period of insurance or any renewal.
+The insurers party to the present appeals have at all times represented only a small part of the employers liability insurance market.
+By far the larger part of the market consists of companies who until the late 1960s (when competition rules intervened) operated a tariff system which bound them to adopt a specified policy form and specified rates.
+Until 1948 tariff insurance was focused on Workmens Compensation Act claims, but in 1948 legislative changes (in particular the abolition by the Law Reform (Personal Injuries) Act 1948 of the doctrine of common employment) made a common law claim for future accruing causes of action much more attractive.
+It may well have been in anticipation of these changes that the tariff companies introduced a new form of policy in May 1948, still in widespread use today, providing indemnity if any employee shall sustain any personal injury by accident or disease caused during the period of insurance.
+Under this tariff wording, sustain looks to the occurrence of an accident or development of a disease at any time, while caused makes clear that the trigger to cover is that the accident or disease has been caused during the insurance period.
+The present insurers were non tariff companies, and have always been free to set their own wordings.
+From dates after the insurances the subject of this appeal, three of the insurers in fact ceased to use the wordings set out in Annex A, and themselves moved expressly to causation based wordings Excess in about 1976, Independent in the mid 1980s, and BAI in 1983.
+As a matter of insurance practice, however, until the decision in Bolton in 2006, all these wordings, whether tariff or non tariff and whether using the language caused, sustain or sustained or contracted, paid out on long tail claims (including the mesothelioma claims which became increasingly frequent in the 1980s) by reference to the date(s) of exposure.
+Where successive employers with different insurers had exposed a particular employee victim to asbestos, liability was in practice apportioned between the employers, and so insurers, broadly according to the extent of exposure for which each employer was responsible.
+The rival cases
+Insurers submit that all the wordings in Annex A require the injury or disease to occur during the period of insurance or of any renewal.
+In the alternative, if the use of the word contracted in the third MMI policy and the BAI policies or the different formulation of the Independent policy leads to any different conclusion in any of such cases, they submit that this leaves unaffected the clear meaning of the Excess and first two MMI policy wordings.
+The employers and interested employees contend that all these policies are to be understood as operating on an exposure or causation basis.
+The implications of these alternative interpretations are clear.
+On insurers primary contention, the policies set out in Annex A would not respond to current mesothelioma claims.
+It is unlikely that most of them would have responded to many, if any, mesothelioma claims, since it was only in the 1980s that such claims began to emerge to any great extent.
+Policies written on a causation basis since the dates indicated in paragraph 10 above would also not respond to current mesothelioma claims.
+Insurers response is that any insurance must be read according to its terms.
+Until 1 January 1972, when the ELCIA came into force, it was not obligatory for employers to have any form of employers liability insurance.
+Further, viewed on an occurrence or manifestation basis, the policies would pick up long tail claims arising from exposure occurring at any time in the past.
+In this connection, it is to be noted that various long tail diseases were well recognised perils from the era of Workmens Compensation legislation before 1948.
+Instances were scrotal cancer, pneumoconiosis and more specifically (from the time of Merewether and Prices 1930 Report on Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry) asbestosis.
+All these would only develop over and could manifest themselves after considerable periods of years.
+Following upon the 1930 report, The Asbestos Industry Regulations 1931 (SI 1931/1140) were introduced to regulate factories handling and processing raw fibre, and in 1969 The Asbestos Regulations 1969 (SI 1969/690) extended this regulation more widely it appears in the light of an appreciation that mesothelioma could result from exposure to small quantities of asbestos dust (see In re T & N Ltd (No 3) [2006] EWHC 1447 (Ch), [2007] 1 All ER 851, para 118).
+The Court of Appeals conclusions
+The force of insurers case rests in the use of the word sustain, whether in connection with the phrase personal injury by accident or disease or bodily injury or disease or in the conjunction injury or disease . sustained or contracted or injury sustained or disease contracted.
+Rix and Stanley Burnton LJJ concluded that the word sustain looked prima facie at the experience of the suffering employee rather than its cause (paras 232 and 343).
+Insurances responding to injury or disease sustained during the insurance period would not, on this basis, cover mesothelioma sustained long afterwards.
+Rix LJ had some compunction about the result because of what he (though not Stanley Burnton LJ) felt was a tension with the commercial purpose of employers liability insurance in the extraordinary context of mesothelioma (para 235).
+Rix LJ would have liked to hold that mesothelioma sufferers sustained sufficient injury on exposure to asbestos to trigger the insurances in force at the date of such exposure, but felt bound by Bolton to conclude the contrary (paras 277 289).
+However, Rix LJ, though not Stanley Burnton LJ, considered that the particular wording of the Independent insurances did not explicitly require the injury or disease to be sustained during the insurance period, and could be read as covering the sustaining of injury at any time arising out of and in the course of employment during the insurance period (paras 300 and 350).
+Rix and Stanley Burnton LJJ differed as to the significance of the ELCIA extension provisions included in the Independent wording, the third MMI wording and the second BAI wording, as quoted in Annex A. Rix LJ thought that the ELCIA required employers to insure on a causation basis (paras 184 and 186) although, since he also expressed the view that an insurance arranged and maintained on a sustained basis could comply with the ELCIA, he may perhaps only have meant required in practice.
+At all events, he held that the ELCIA extension provisions covered liability incurred to the personal representatives of employees on a causation basis, while enabling insurers to recoup themselves so far as possible from the relevant employers in respect of liability they would not otherwise have had to meet (paras 292, 300 and 302).
+Stanley Burnton LJ did not agree that the ELCIA required causation wording (para 342), but considered that it required insurance to be taken out and maintained in respect of ex employees, or at least those who were or had been employed at any time after the coming into force of ELCIA (para 342; and see Rix LJs comments at paras 305 307).
+Rix, Smith and Stanley Burnton LJJ were all agreed that, where provision was made for disease contracted, this could and should be construed as introducing cover on a causation basis, even if or though wording such as injury (or disease) sustained could only respond on an occurrence basis.
+Analysis
+Annex A sets out the insuring clauses.
+Insurers case is, as I have said, rooted most strongly in the word sustain, particularly when it is used by itself, rather than in conjunction with a more ambivalent alternative in the phrase sustained or contracted.
+The natural meaning of the word sustain, taken in isolation and as defined in the Shorter Oxford English Dictionary from an appropriate date (1965, 3rd ed), is, with respect to injury, undergo, experience, have to submit to, or, possibly, to have inflicted upon one, suffer the infliction of.
+But the insurance cover granted (and no doubt required) extended expressly beyond injury by accident to embrace disease.
+This was achieved by less natural conjunctions, such as sustain [any] personal injury by accident or disease or sustain [any] bodily injury or disease.
+Conscious perhaps that the verb sustain does not fit naturally with the concept of disease, some companies (MMI in its third wording and BAI in its first and second wordings) introduced the different verb contracted in the formulations sustained or contracted or injury sustained or disease contracted.
+This use of contracted with respect to disease is considerably more natural, but is clearly open to an interpretation that it looks back to the initiating or causative factor of the disease, and (whatever the answer on that point) highlights a question whether any substantial difference exists in this connection between such wordings and other wordings referring more awkwardly to the sustaining of personal injury by disease or the sustaining simply of disease.
+To resolve these questions 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 broadly.
+As Lord Mustill observed in Charter Reinsurance Co Ltd v Fagan [1977] AC 313, 384, all such words must be set in the landscape of the instrument as a whole and, at p 381, any instinctive response to their meaning must be verified by studying the other terms of the contract, placed in the context of the factual and commercial background of the transaction.
+The present case has given rise to considerable argument about what constitutes and is admissible as part of the commercial background to the insurances, which may shape their meaning.
+But in my opinion, considerable insight into the scope, purpose and proper interpretation of each of these insurances is to be gained from a study of its language, read in its entirety.
+So, for the moment, I concentrate on the assistance to be gained in that connection.
+A first point, made very clearly below by Rix LJ (para 263), is that the wordings on their face require the course of employment to be contemporaneous with the sustaining of injury.
+This leaves open what is meant either by sustaining or by injury.
+Rix LJ thought that the Independent wording could be understood differently in effect, as if it had expressly read: If any person who is under a contract of service or apprenticeship with the Insured shall at any time sustain bodily injury or disease arising out of and in the course of his employment by the Insured during the policy period in connection with the Contract specified or type of work described in the Schedule .
+That interpretation assumes that sustain in this context equates with the occurrence, rather than causation, of the injury or disease, and only arises for consideration if that assumption is correct.
+A second point is that the insurance wordings demonstrate a close link between the actual employment undertaken during each insurance period and the premium agreed to be payable for the risks undertaken by insurers in respect of that period.
+Premium is linked expressly to actual wages, salaries and earnings during the insurance period under the Excess policies, the first MMI wording and the BAI policies.
+The second and third MMI wordings contemplate that premium may be linked to wages, salaries and earnings, and, to the extent that any inference regarding the general nature and scope of cover under these standard wordings can be drawn from such a link, it must be capable of being drawn whether or not premium was actually so linked in any particular case.
+As to the Contractors Combined Policy issued by the Independent, it is a probable inference that the estimates which were provided and were to be updated will have included, in respect of the employers liability cover in section 1, wages, salaries and other earnings paid.
+Finally, the Independent cover is linked to the actual contract or work which the employer is undertaking during the insurance period.
+These links are in my view significant.
+True, premium may sometimes be calculated on a rough and ready basis.
+Minor discrepancies between the premium calculation and the risk may be understandable: see e.g. Ellerbeck Collieries, Ld v Cornhill Insurance Co [1932] 1 KB 401, 418, per Greer LJ (who pointed out that any such discrepancy there was more apparent than real, since workmen not earning wages because off work would not actually be at risk of any fresh accident, even though they would remain susceptible to certification for disablement).
+Here the position is quite different.
+Great care is taken in all the policies to tie premium to the actual employment undertaken during the insurance period, and in the case of the Excess, Independent and MMI policies to tie cover to a business, contract or activities described in the schedule.
+The natural expectation is that premium is measured by reference to actual employment or work during the insurance period because it is the risks attaching to such employment or work which are being undertaken by insurers.
+At the very least, the drawing of this link makes improbable the contention advanced by some of the insurers that the present insurances were apt to pick up liabilities emerging during the insurance period which could be attributable to employment and activities undertaken and negligent conduct committed at times long past.
+The number of employees, their employment activities and the risks involved at those times could be very different.
+The significance which attaches to the employment current during the insurance period is underlined by legal and practitioner texts.
+As long ago as 1912, MacGillivray on Insurance (1st ed), pp 966 wrote: The nature and scope of the employers business must be clearly defined in the insurance policy, and workmen employed outside the scope of the assureds business as described in the policy will not be covered In the section on Employers Liability Insurance in Stone & Coxs Accident, Fire and Marine Year Book (1957), pp 688 689, the authors stressed the importance of identifying any special hazards, such as signs of careless management or lack of control or careless workmen, and observed: The surveying of Employers Liability risks has probably become more general than formerly.
+Apart from the question of the possibilities of accident, there is now the serious question of disability due to disease and in particular the disease known as pneumoconiosis.
+In 1974 MMI produced a Guide to Insurance Officers in Local Government, which it said that it would like to see on the desk of every insurance officer for ready reference at any time; this, after noting that employers liability was almost invariably dealt with by a separate policy and that its importance had been increased by the ELCIA, went on: "7.
+Premiums are usually based on wages and salaries this is not only a convenient yardstick but is logical since loss of earnings usually represents a substantial part of claims.
+Rates of premiums vary according to the nature of the work of the labour force, and the claims experience. 8.
+A feature of employers liability claims is the length of time which often elapses between the date of the accident and the final settlement, and the cost of servicing claims tends to be high.
+Injury caused at work during the period of insurance even though it may not be diagnosed till years afterwards can be a liability under the policy." I note in parenthesis that 1974 was the year in which MMI changed from a pure sustain form of wording to a form covering bodily injury or disease suffered, when sustained or contracted during the currency of the policy.
+Yet there is no suggestion in the Guide of any change in substance.
+It is in this light improbable that the present insurances can or should be read as offering cover in respect of ancient, as opposed to current, employment and activities.
+But there is a third point.
+If insurances in the present form only address risks arising from employment during the insurance period, then, on insurers case, there is a potential gap in cover as regards employers breaches of duty towards employees in one period which only lead to injury or disease in another later period.
+If the employment relationship spans both insurance periods and the employer remains insured with the same insurers in both periods, there may be no problem.
+The employee is employed at all relevant times and the insurance may be viewed as a single continuing contract.
+The policy wordings set out in Annex A, with their references to insurance during the period of insurance or during any subsequent renewal period, would support the latter view.
+But, even in the days of more stable long term employment and insurance relationships, employees could and would move employment or retire, or employers would cease business, or change insurers.
+On the basis that the insurances only cover risks arising from employment during the insurance period, there would be no cover unless the liability arose from and in the course of and involved injury or disease during the currency of the same employment and the same insurance (including any renewal).
+Fourthly, on insurers case, employers would as a result be vulnerable to any decision by insurers not to renew; and such a decision might arise from the simple performance by employers of their common law duty to disclose past negligence to insurers upon any renewal.
+Employers who discovered or came to appreciate that they had been negligent in the course of past activities in respects that had not yet led to any manifest disease (e.g. by exposing their employees to asbestos) would have such a duty.
+Insurers could then, on their own case, simply refuse any renewal or further cover.
+Employers could then have to disclose that refusal also to any further insurers to whom they made a proposal for cover.
+One response made by insurers to such problems is that they would not arise in the large bulk of cases.
+That is no doubt true.
+Most employers liability cases involve short tail claims: typically, an accident involving injury.
+It is not surprising if the language of the insurances fits more easily with situations in which cause and effect coincide in time.
+But, by the same token, this does not mean that the underlying risk being assumed was in either partys mind limited to circumstances in which a cause gave rise to an effect during one and the same insurance period.
+Rix LJ, in accepting that cover depended upon injury being sustained in the sense of experienced during the insurance period, was influenced by the thought that this was not an absurd or meaningless interpretation.
+The insurance could operate entirely successfully in some 99% of cases (para 235).
+In the light of this Courts recent decision in Rainy Sky SA v Kookmin Bank [2011] UKSC 50, [2011] 1 WLR 2900, para 30, this, in my view, gives too little weight to the implications of the rival interpretations and to the principle that where a term of a contract is open to more than one interpretation, it is generally appropriate to adopt the interpretation which is most consistent with business common sense.
+The 1% of cases in which there might be no cover could not be regarded as insignificant.
+Well before 1948, there was general awareness of the existence of long tail diseases which would only develop and manifest themselves after considerable periods of years (see para 12 above; and see also Cartledge v E Jopling & Sons Ltd [1963] AC 758).
+The connection between asbestos exposure and mesothelioma became generally known in the mid 1960s, following the publication in 1965 of Newhouse and Thompsons report on Mesothelioma of pleura and peritoneum following exposure to asbestos in the London area and a Sunday Times article.
+Yet on insurers case, the present insurances would not cover any situation where, after the termination of employment or the expiry of an insurance, injury or disease developed from an employers breach of duty to a relevant employee during an insurance period.
+A fifth point concerns the way in which the policies deal with the issue of extra territorial scope.
+The first Excess wording stands apart from the others in its treatment of that issue.
+Cover only exists in respect of any employee in the employers service who shall sustain any personal injury by accident or disease while engaged in the service of the employer in Great Britain, Northern Ireland, the Isle of Man or Channel Islands, in work forming part of the process in the employers business.
+As soon as one postulates a delay in time between the causation and experiencing of a disease, it becomes apparent that this wording could operate to very curious effect if sustain looks to the latter rather than the former.
+A disease (e.g. a cancer) experienced during employment could be covered although caused by pre employment exposure, while a disease caused by employment would not be covered if only experienced while working abroad.
+The natural inference to draw from the references to being engaged in the employers service and in work forming part of the employers business process is that it was envisaged that the accident or disease would and should arise out of such service and work, rather than merely occur during it.
+That points to an underlying focus on causation, even if the assumption was that in the majority of cases causation and experiencing of any injury by accident or disease would coincide.
+As to the other policies, at the very least, the way they deal with territorial issues throws doubt on any proposition that their wordings are so carefully or well chosen that a court should be careful to stick literally to whatever might be perceived as their natural meaning.
+They address territorial scope by specific exclusions, but the cover and the exclusions use different language.
+Thus, although the second and third Excess wordings cover liability to employees who sustain personal injury by accident or disease, the territorial exclusion is in respect only of accidents occurring outside Great Britain, etc, leaving it unclear how disease, whether caused or developing outside Great Britain, should be dealt with.
+The Independent wording also covers liability to employees who sustain bodily injury or disease, while the territorial exclusion is for injury, illness, loss or damage caused elsewhere than in Great Britain, etc.
+While the contrast in language is capable of lending some support to a view that sustain looks to experiencing, rather than to causation, an alternative possibility is that the two words were understood as having the same effect and that the cover was understood as focused on causation.
+The language of this exclusion thus cuts both ways, as Rix LJ recognised (para 297).
+A similar position applies to the contrast between injury or disease sustained and injury or disease caused outside Great Britain, etc. under the first two MMI wordings.
+Under the third wording, the language of the cover and the exclusion have been deliberately matched.
+Under the BAI wordings, however, there is an incongruity between cover for injury sustained or disease contracted and the exclusion in respect of liability for accidents . arising outside the United Kingdom.
+Again, this leaves the position in respect of disease unclear, and the difference between injury sustained and accidents arising can be read either as deliberate or as suggesting that no significance was attached to the difference or that the real concern was with causation.
+The history and Workmens Compensation Acts
+Much attention was, both below and before the Supreme Court, paid to the development of employees rights to compensation in respect of personal injury and disease, at common law and under the scheme of the Workmens Compensation Acts (WCAs).
+The WCAs were in force from 1897 until replaced in 1948 under the National Insurance (Industrial Injuries) Act 1946.
+The history and a number of the decisions under the WCAs were examined by Rix LJ in paras 126 to 165 of his judgment.
+He concluded that such an examination yields in the present context not a lot.
+To a considerable extent, I agree and I shall not repeat the whole exercise, but identify some potentially relevant aspects.
+Etymologically, some of the language presently in issue can be traced back to statutory language found in the Employers Liability Act 1880 and the WCA 1897.
+The 1880 Act modified the common law doctrine of common employment, by entitling employees to recover common law compensation for injury caused by specified matters for which employers were responsible, provided that they gave notice, within six weeks of sustaining the injury of its cause and the date at which it was sustained.
+The 1897 Act, applying to personal injury by accident arising out of and in the course of employment, also required notice to be given of the accident as soon as it occurred, stating the cause of the injury and the date at which it was sustained.
+These Acts therefore distinguished the causation and the sustaining of an injury, but not in any presently relevant context.
+Further, any reference to sustaining disappeared from the Workmens Compensation scheme in the 1906 Act, which amended the scheme to require a notice stating the cause of the injury and the date at which the accident happened.
+The 1906 WCA also expressly extended the scheme to cover certain diseases specified in section 8.
+In that context, it provided that, where a workman was certified as disabled or suspended from employment or died due to a disease and the disease is due to the nature of any employment in which the workman was employed at any time within the twelve months previous the date of the disablement or suspension, whether under one or more employers, then he or his dependants shall be entitled to compensation under this Act as if the disease or such suspension . were a personal injury by accident arising out of and in the course of that employment .
+Section 8(a) provided: The disablement or suspension shall be treated as the happening of the accident.
+Under section 8(c), the compensation was recoverable from the employer last employing the employee within the previous twelve months, providing the employee furnished that employer with particulars of all his other employers in the employment to the nature of which the disease was due.
+It was not necessary to prove that the disease actually arose from the last employment, merely to prove that the relevant employment gave rise to a risk of such a disease: Blatchford v Staddon and Founds [1927] AC 461.
+The 1906 Act may be regarded in this respect as involving an early statutory instance of the kind of liability recognised in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32 and Barker v Corus UK Ltd [2006] UKHL 20, [2006] 2 AC 572.
+However, failing such particulars, the last employer could excuse himself upon proving that the disease was not contracted whilst the workman was in his employment (section 8(c)(i)).
+The last employer might also join any other employer (within the last twelve months) and it was provided that upon proof that the disease was in fact contracted whilst the workman was in the employment of that other employer, that other employer shall be the employer from whom the compensation is to be recoverable (section 8(c)(ii)).
+Finally, section 8(c)(iii) provided that: if the disease is of such a nature as to be contracted by a gradual process, any other employer within the last twelve months was liable to make such contributions as might be agreed or determined by arbitration under the Act.
+Under this scheme, therefore, compensation for disease was initially based upon the nature of the employment and its potential for causing, rather than upon proof that it caused, such a disease.
+The paternal benevolence of the Legislature (as Visc Sumner put it in Blatchford: p 469) is well known, and if the price of that benevolence is paid by the last employer, who thus has to bear others burdens, that is nothing new in this kind of legislation.
+However, the last relevant employer could seek, in specified circumstances, to avoid or to pass on to another employer responsibility by proof that the disease was not actually contracted in his employment.
+Alternatively, in the case of a disease of such a nature as to be contracted by a gradual process, all relevant employers within the last twelve months would be liable to contribute.
+The scheme was, as I see it, concerned with either the risk of or actual causation, and in its use of the word contracted it appears to me to have been directing attention to the causation, rather than the mere experiencing or manifestation, of disease.
+The WCA scheme was the subject of further amendment by the 1925 Act.
+Section 43 superseded section 8 of the 1906 Act as regards scheduled diseases, while section 47 made specific provision for the introduction of a parallel scheme covering silicosis.
+Effect was given to this by inter alia the Metal Grinding Industries (Silicosis) Scheme which came into force in July 1927, making provision for obtaining compensation from the last employer within the previous three years, and giving such employer rights to look to other such employers within the last five years.
+An insurance covering employers liability in this connection was considered in Smith & Son v Eagle Star (1933) 47 Ll.
+L.R. 88, (1934) 48 Ll.
+L.R. 67.
+Mr Hill had been employed in processes giving rise to silicosis for some 20 years.
+For the last two of these years, from 31 March 1928 to 16 June 1930, he worked for Smith & Son.
+From 30 June 1927 to 17 June 1930, Smith & Son had an insurance against WCA liability in respect of any personal injury or disease which at any time during the continuance of this policy shall be sustained or contracted by any workmen .
+The policy was expressly extended to cover any liability in connection with any claim made by employees in respect of silicosis, and the decision of the Court of Appeal rested on this ground.
+But Scrutton LJ also examined the main policy language, and in particular what was meant by contracted.
+He noted that there has been a good deal of discussion in the Courts about a disease which is gradually contracted commencing at some stage and through the process going on increasing the disease until at last it results in total disablement (p 70), and concluded that the word was not to be read as first contracted, but in the sense of influenced or increased until it ultimately comes to total disablement.
+This, although not directly focusing on the first development of a disease from some earlier cause, suggests a flexible view of the word contracted, directed once again to the employments responsible for causing the disease.
+Confirmation that this was Scrutton LJs view can be found in the earlier case of Ellerbeck Collieries Ltd v Cornhill Insurance Co [1932] 1 KB 401.
+Two workmen who had been in the colliery companys service for many years were on respectively 11 and 12 March 1929 (dates they were actually off work) certified as suffering from miners nystagmus.
+The Cornhill had on 8 March 1929 issued the colliery company with a three month provisional cover note insuring in terms matching the wording of the insuring clause in the first Excess wording (i.e. against liability in respect of any employee who shall sustain any personal injury by accident or disease while engaged in the service of the employer).
+Failing a satisfactory survey, the cover note actually expired on 18 March 1929.
+The first point decided was whether the employees had sustained personal injury by accident or disease during the period of validity of the cover note (8 to 18 March 1929).
+It was held that they did.
+The judgments in the Court of Appeal are of interest for a number of reasons.
+First, both Scrutton LJ (p 408) and Greer LJ (p 417) approached the question of construction on the basis that the policy was intended to protect the employers against their liability to their workmen under the WCAs.
+Scrutton LJ added that it seems to me that the policy was intended to cover the liability of the employers for the results of industrial diseases caused by the employment (p 409).
+His description of the policy, covering in terms any employee sustaining personal injury by accident or disease in service, as intended to cover liability . for the results of diseases caused by the employment fits precisely with the analysis which I consider correct (paragraphs 18 28 above).
+Second, Scrutton LJ went on to refer to the difficulties in saying when an industrial disease, such as miners nystagmus or lead poisoning, begins, and in these circumstances the difficulty for an employee to pick the proper employer to sue.
+He described the way in which Parliament, by what became section 43 of the WCA 1925, had addressed such difficulties by providing a conventional and artificial means for enabling the workman to get compensation, leaving the various employers to fight out their proportion of the liability between themselves (p 409).
+He said that the last employer, liable under the WCA scheme, then claims on the insurance company on the ground that he is liable to make compensation for an injury by disease, and the date of the injury or disablement is by statute and certificate fixed as happening between the dates for which he is provisionally covered (p 411).
+On this basis, and in the light of the House of Lords decision in Blatchford, Scrutton LJ concluded that he was bound to hold that an accident has happened within the period of the provisional cover against the consequences of which the insurance company is bound to indemnify the employer (p 413).
+In short, the conventional and artificial provisions of the WCA defined what constituted an accident and when personal injury by accident or disease was sustained for the purposes of the insurance.
+Greer LJ, more shortly, adopted the same approach (p 418).
+Only Slesser LJ (p 421) expressed a reservation about the possibility that the artificial deeming provisions of section 43(a) of the WCA 1925 might only apply as between employee and employer, and that it might have been necessary to consider separately the date of the sustaining of injury as between the employer and the insurer, had there been any admissible evidence that the two employees had actually contracted the scheduled disease before the granting of the statutory medical certificate.
+Commercial purpose and practice
+Much general evidence was directed or elicited before Burton J in relation to the commercial purpose of the present insurances, and to practice relating to their operation in the years before the present issue arose.
+It was argued that there was, prior to the decision in Bolton, a universal usage of the insurance industry to pay out mesothelioma or similar claims under [employers liability] policies by reference to the date of inhalation/exposure whatever the wording, or an estoppel by convention to like effect.
+Burton J rejected the argument (paras 180 to 201, esp. para 201), for the reasons that, first, there was no evidence relating to years earlier than the 1980s which could be put down to any kind of arguable usage, second, any usage was not certain, not least because of the multiplicity of approaches to or bases for it and, third, it was not binding.
+It was not incorporated into the insurance contracts.
+No issue of estoppel by convention was pursued to the Court of Appeal (Rix LJ, para 24, and Stanley Burnton LJ, paras 332 and 335) and the issue of a universal custom was only pursued by Zurich Insurance Company (Rix LJ, para 24).
+By a multiplicity of approaches to or bases for insurers practice, Burton J was referring to evidence that insurers followed the practice they did in some cases because they believed that their contracts were to be interpreted on a causation/exposure basis, in others because they believed that the aetiology of diseases such as mesothelioma was such that injury was in fact sustained (in the sense of experienced) at the date of inhalation, while yet others may have failed to realise that their historically relevant wordings had been on a different basis to the causation wordings to which they had since switched or may have failed to address their minds to any relevant issue at all in relation to an insured who was usually a longstanding repeat client.
+Rix LJ (para 228) contented himself with agreeing with Burton Js reasoning on this aspect, while Stanley Burnton LJ noted and agreed in particular with Burton Js second reason, relating to the believed aetiology of mesothelioma (para 335).
+Smith LJ, on the other hand, treated the commonly held understanding that diseases such as mesothelioma involved injury at the date of inhalation as part of the factual matrix of all the insurance contracts (paras 322 323), and considered against that background that no difference in meaning should be held to exist between policies using sustained and causation wording, until the time when the two sides of the insurance industry should be considered to have appreciated that some diseases, including mesothelioma, do not occur until many years after exposure to the causative agent (para 327).
+She put that as around the time of the decision in Bolton, after which parties using a sustained wording must be taken to have meant only to cover injuries actually occurring during the policy period (para 327).
+The argument of a binding usage was not pursued before the Supreme Court, rightly so for the reasons given by the judge and the majority in the Court of Appeal.
+Equally, there has been no suggestion of estoppel by convention, along the lines recognised as possible in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] 1 AC 1101, para 47.
+However, on the issues of policy interpretation, Mr Stuart Smith QC for Zurich Insurance, maintained before the Supreme Court an argument that there was a consensus based on market practice, whereby, for one reason or another, such policies would respond to long tail diseases by reference to the date of exposure, and that this could constitute relevant background to their construction.
+Assuming that, short of a binding usage or estoppel by convention, a practice, if known to or shared by the relevant parties, could in some circumstances be relevant background (see e.g. Reardon Smith Line Ltd v Yngvar Hansen Tangen [1976] 1 WLR 989), still, in my opinion the argument fails in the present case.
+It fails in particular in the light of the judges findings, even in relation to policies made in and after the 1980s.
+A practice based on a mistaken understanding, by only some insurers, that the policies operated on a causation basis cannot be relevant background to the interpretation of every policy; on the judges findings other insurers do not appear to have understood that the policies operated on that basis.
+A practice based on a mistaken understanding by others in the market as to when long tail diseases could be said to have been experienced or to involve injury is likewise an unpromising start for construing all policies; if the understanding were good, it would mean that such diseases fell within the policies, even though the policy cover was restricted to injury or disease experienced during the policy period.
+The understanding would not therefore carry any imperative to read a sustained wording as meaning caused.
+Before the Supreme Court, both employers and employees continued to rely upon the evidence given at trial regarding the general purpose of employers liability insurance as part of the background to the interpretation of the present insurances.
+Rix LJ (paras 223 to 235) gave it some weight as such, but Stanley Burnton LJ thought that there was little if any assistance to be gained by reference to the commercial purpose of EL insurance, as this was simply to provide the cover defined in the policy (para 333).
+The Supreme Court was provided with a useful summary of the considerable volume of evidence relied upon in this connection.
+It consisted in general of answers given by insurers, two at least of them with experience going back to the 1940s.
+They were asked (frequently in response to leading though not inadmissible on that score questions in cross examination) about their or others views, understandings or perceptions as to the purpose of the policies, and the way in which these would or should respond, in relation to injuries arising from exposure in the course of activities during the policy period.
+In my judgment, Stanley Burnton LJ was right to reject such evidence as inadmissible.
+The parties cannot be asked what they meant by their contract, and, failing any binding usage, it is equally inadmissible to ask other persons operating in the market to give general evidence as to what they would have understood the parties to have meant by the words used in the context in which they were used.
+The evidence does not seem to have amounted to more than that.
+However, I do not agree with Stanley Burnton LJs suggestion that no useful conclusions can be drawn about the commercial purpose of the policies, save that it was to provide the defined cover.
+In my opinion, relevant conclusions about the general nature and purpose of the individual policies can be drawn in this case, just as they could in the case of the different (and wordier) instrument in issue in In re Sigma Finance Corporation [2009] UKSC 2, [2012] 1 All ER 571 (see especially paras 10, 12 and 37).
+They can be drawn from an overall consideration of the individual insurance wordings, and particularly from the features which tie cover to the employees and activities during the relevant policy period and the five points considered in paragraphs 18 to 28 above.
+Further, if the policies are on any view apt to cover employers liability for long tail diseases which initiate during, but only manifest themselves years after, the original policy period, one may look with scepticism at an interpretation which distinguishes this situation from other situations where a long tail disease is caused but does not strictly begin during the policy period, and only manifests itself years later.
+This is particularly so if a conclusion that the latter diseases fell outside the policy cover meant that they would or might well not fall within any subsequent employers liability policy.
+ELCIA 1969
+Section 1 of the ELCIA provides: 1. (1) Except as otherwise provided by this Act, every employer carrying on any business in Great Britain shall insure, and maintain insurance, under one or more approved policies with an authorised insurer or insurers against liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment in Great Britain in that business, but except in so far as regulations otherwise provide not including injury or disease suffered or contracted outside Great Britain (3) For the purposes of this Act (a) approved policy means a policy of insurance not subject to any conditions or exceptions prohibited for those purposes by regulations. 4. (1) Provision may be made by regulations for securing that certificates of insurance in such form and containing such particulars as may be prescribed by the regulations, are issued by insurers to employers entering into contracts of insurance in accordance with the requirements of this Act . (2) . the employer shall during the currency of the insurance and such further period (if any) as may be provided by regulations (a) comply with any regulations requiring him to display copies of the certificate of insurance for the information of his employees; .
+The only conditions or exceptions ever prohibited were certain exemptions from liability.
+Under section 3, the ELCIA did not however apply to local authority employers, such as most of MMIs insureds.
+Under section 4, provision might be made for certificates of insurance to be issued to employers, and in that event the employer was, obliged during the currency of the insurance and such further period (if any) as may be provided by regulations to comply with any regulations requiring him to display copies of the certificate of insurance for the information of his employees.
+In reaching his conclusions on the ELCIA (para 16 above), Rix LJ engaged in an impressive analysis, to which I would refer (paras 166 to 186).
+The only doubt this leaves is how, if the ELCIA requires a causation wording, an employer could properly insure on a wording which only covered injury sustained in the sense of experienced (see para 186 and paragraph 16 above).
+The scope of the ELCIA is, as Rix LJ indicated, open to three alternative analyses: that it requires cover in respect of (i) all future liability incurred during the insurance period, whenever the negligence or injury, or (ii) liability for all future injury or disease sustained (in the sense of experienced) by employees during the insurance period, whenever the negligence, or (iii) liability for all negligence or breach of statutory duty during the insurance period giving rise to liability as in (ii).
+The retrospectivity of cover involved in (i) and (ii) is unlikely to have been intended.
+The only one of the three possibilities not involving a degree of retrospectivity is (iii).
+A duty on every employer to insure, and maintain, insurance is consistent with a requirement to have the insurance in place during, though to maintain it after, the relevant insurance period.
+The provision, contemplated by section 4, for copies of insurance certificates to be issued by insurers and to be displayed by any employer for the information of his employees during the currency of the insurance and such further period as may be provided by regulations indicates, first, a desire to assure employees of their insurance protection during the relevant insurance period, and, secondly, an awareness that this assurance might need to remain in place after such insurance period; it is therefore suggestive of (iii), rather than (i) or (ii).
+As Rix LJ observed, it is only cover in accordance with (iii) that can give an employee the assurance that any injury or disease suffered as an employee and arising out of and in the course of [his] employment will be covered by insurance, the benefit of which would, if necessary, be available to him at the time under the Third Party (Rights against Insurers) Act 1930.
+An obligation to have a policy in force only at or by the time when injury is actually experienced would leave employees or ex employees at the mercy of compliance with the statute by their employers or ex employers at uncertain future dates.
+It would also leave such employees or ex employees at the mercy of employers who, for whatever reason, ceased to carry on business either in Great Britain or (for example due to insolvency) at all.
+Further, if injury or disease suffered or contracted bears the same meaning as insurers suggest that injury or disease sustained or contracted bears, then an employee, who had the misfortune to succumb to a disease abroad caused by his employment or previous employment in Great Britain, would not be covered (unless regulations intervened to ensure that he was).
+Stanley Burnton LJ thought that any issue as to the nature of the insurance required under ELCIA was resolved by its use of the word sustained, rather than caused.
+He went on to conclude that the ELCIA covered any injury sustained (in the sense of experienced) during a period of insurance, by anyone who was then or had at any previous time been an employee.
+However, that latter conclusion introduces a retrospectivity into the scope of the ELCIA, which, as already indicated, I think unlikely to have been intended.
+The statute could have used the tariff wording of causation instead of sustained.
+But in the statutory language the word sustained is not coupled with a phrase such as during the period of the insurance.
+Even if sustained means experienced in the context of the statute, the statute may require insurance on what is effectively a causation basis; the words sustained by his employees may well mean sustained at any future time by his current employees.
+The key to the meaning of the statutory language seems to me the combination of the phrases arising out of and in the course of their employment in Great Britain and not including injury or disease suffered or contracted outside Great Britain.
+Together, and for reasons given in the last two paragraphs, they indicate a statutory requirement to insure in respect of activities during the course of employment in Great Britain which may in the future give rise in or out of Great Britain to liability to the employees involved in such activities.
+In my judgment, therefore, the conclusion which gives proper effect to the protective purpose of the legislation is that the ELCIA requires insurance on a causation basis.
+The ELCIA extension provision to the Independent and second BAI wordings (see Annex A), as well as a similar extension provision to the MMI policy intended for insureds who were not local authorities, achieved this result expressly in relation to policies written subsequent to the coming into force of the ELCIA, at least for the purpose of ensuring that employees claims were covered by insurance.
+Any other subsequent insurances not containing that extension provision should, if possible, be read as providing the relevant employers cover required by statute.
+This is a powerful tool in the interpretation of such insurances.
+Bolton M.B.C. v Municipal Mutual Insurance Ltd
+The Court of Appeal in the present case was bound by its previous decision in Bolton MBC v Municipal Mutual Insurance Ltd [2006] EWCA Civ 50, [2006] 1 WLR 1492 on public liability policies.
+The majority regarded that case as, in effect, determining the meaning which must be put on the word sustained in the present employers liability policies: see paras 284, per Rix LJ, and 339, per Stanley Burnton LJ, who however also found the logic of Longmore LJs judgment convincing in relation to the latter type of policies.
+Smith LJ on the other hand considered that public liability and employers liability insurances gave rise to different considerations (para 328).
+In my opinion, that is right.
+Employers liability policies are subject to particular terms and considerations, analysed above (particularly in paragraphs 18 28 and, in the case of policies effected after the coming into effect of the ELCIA, paragraphs 41 46).
+These considerations are not or certainly not necessarily applicable to public liability insurances.
+The present case was concerned with employers liability not public liability insurances, and it may well be that not all the relevant facts relating to the latter are before us.
+We certainly have not heard full argument on the proper conclusions which may be drawn regarding the basis of liability or trigger generally applicable under the latter.
+In these circumstances, I would proceed on the basis that we are not bound by Bolton, that this does not involve any view about the correctness or otherwise of Bolton, but only that it is unnecessary to consider what the position generally may be under public liability policies.
+Assuming that, in relation to public liability insurance, the position generally is as stated in Bolton, that does not alter the conclusions which I reach.
+It merely means, in their light, that public liability insurance generally and the present employers liability policies operate on different bases, because of their different backgrounds, terms and purposes.
+Contracted
+There is no difficulty about treating the word contracted as looking to the causation or initiation of a disease, rather than to its development or manifestation.
+In relation to the two BAI wordings and the third MMI wording, this interpretation obtains strong support from the general nature and purpose of the relevant policies, derived from their immediate context and terms and analysed in paragraphs 18 to 28 and 41 above.
+To the limited extent that the WCA background may assist to inform the meaning of later policies, it can be seen overall as a legislative scheme which was concerned with either the risk of or actual causation (para 32 above).
+Even if, in the phrase sustained or contracted or injury sustained or disease contracted, the word sustained is to be understood as meaning experienced, that would reflect no more than the fact that the cause and effect of an injury commonly coincide; I would still unhesitatingly conclude, as did the Court of Appeal, that the word contracted used in conjunction with disease looks to the initiating or causative factor of the disease.
+Sustained
+The majority of the Court of Appeal considered that it was impossible to view policies with pure sustained wordings as operating by reference to the initiating or causative factor of a disease.
+They did so primarily by reference to the wording of the insuring clauses.
+In my view, as indicated in paragraphs 18 19 above, a broader approach is necessary.
+The general nature and purpose of these policies can be derived from their immediate context and terms, analysed in paragraphs 18 to 28 and 41 above.
+It is true, as Rix LJ said, that phrases such as injury sustained by an employee or an employee who shall sustain injury, in either case by accident or disease, appear to address the impact of the accident or disease on the employee.
+But the underlying focus of the insurance cover is on the employees and activities current during the insurance period.
+The cover would be potentially incomplete, and employers would be potentially exposed to uninsured risks, were sustained to be understood as meaning developed or manifested.
+This is so, even before the ELCIA came into force.
+Any policies written subsequent to the coming into force of the ELCIA either afford cover consistent with the Acts requirements by virtue of an ELCIA extension provision, or, to the extent that this is not the case, should be construed, if at all possible, as meeting employers obligations under that Act.
+In my view, such obligations included taking out insurance in respect of negligence during the insurance period affecting an employee in a manner giving rise to bodily injury or disease then or at any subsequent time.
+On this basis, I consider that, although the word sustained may initially appear to refer to the development or manifestation of such an injury or disease as it impacts employees, the only approach, consistent with the nature and underlying purpose of these insurances both before and after the ELCIA, is one which looks to the initiation or causation of the accident or disease which injured the employee.
+The 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 subsequently.
+Disease sustained, read as meaning experienced or incurred
+Rix LJ was attracted by the submission that, even if sustaining disease meant experiencing or incurring it during the period of the insurance, long tail diseases could be said to have been sustained during the period of insurance in this sense.
+He asked rhetorically whether an employee who had inhaled asbestos had not sustained an injury in the form of an assault of the fibres, as a result of which he was worse off through having dangerous fibres in his lungs (para 280).
+He noted that, although there was at most trivial injury or damage, and nothing that could create actionable damage, nevertheless, when mesothelioma develops, it is the risk of mesothelioma created by the exposure which is the damage (see .
+Barker ) and it is the exposure, and the risk of mesothelioma, that is the damage (para 281).
+He only felt bound to reject this analysis (para 284) because of the Court of Appeals previous decision in Bolton.
+It may be that in the case of some long tail diseases, the victim can be said to have incurred or caught them at the same time as the initial ingestion or scratch giving rise to them.
+But it is clear that this is not the position with inhalation of asbestos in relation to either asbestosis or mesothelioma.
+No cause of action arises from exposure or inhalation alone: Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39, [2008] 1 AC 281.
+Further, for reasons which I develop in paragraphs 64 65 below, the exposure and risk are not by themselves damage in any sense known to the law.
+Damage is only incurred when mesothelioma develops.
+Only when it develops does the victim incur damage which is legally relevant, and even then this is not because any physical link necessarily exists or can be proved between the mesothelioma and the original exposure.
+The rule in Fairchild and Barker imposes liability for the mesothelioma upon persons who have exposed the victim to asbestos, and so created a risk of mesothelioma.
+But it is not a rule which, even as between employers and employees, deems the latter to have suffered injury or disease at the time of any exposure.
+And, even if it were viewed simply as a rule imposing retrospective liability on employers for exposing their employees to the risk of mesothelioma, the insurance policies do not insure risks of physical injury or disease, but only actual injury or disease.
+The application of the insurances in respect of mesothelioma
+At the outset of these appeals, the application of the insurances in respect of mesothelioma suffered by employees exposed to asbestos during their employment by an insured employer did not appear controversial.
+This changed after a question from Lord Phillips on day 4 of the hearing, followed by a later written note.
+All the same, the transcript pages containing any argument on the point numbered only 40 out of a total of some 1140.
+So far as Mr Edelman made any submissions on this point, in his written case or orally, they were to this effect: if the correct analysis of the Houses decision in Fairchild be that an employer who exposes an employee to asbestos is deemed to have caused that employees mesothelioma, then employers liability insurances held by the employer on a causation basis should respond; but, if the policies do not respond on a causation basis, there is no justification for treating the employee as having suffered injury or a disease during their currency, because employers cannot prove that any particular inhalation caused any injury.
+This led to some discussion, particularly with counsel for employers and employees, of the points which I have already addressed in paragraphs 50 52 above.
+The point now expressed forcefully by Lord Phillips in his judgment is that exposure to the risk of mesothelioma is the correct analysis of the Fairchild principle, at least as subsequently interpreted, and that such exposure can satisfy neither the concept of injury nor the concept of causation for the purposes of the policies.
+If that is right, then the present insurance claims must all fail.
+Indeed, the great bulk of insurance claims settled by other insurers (e.g. former tariff insurers) or by the present insurers under the causation policies they have issued in more recent years (paragraph 10 above) should presumably also have failed.
+The only exception may be the case of an employee exposed to asbestos in only one employment by an employer holding insurance throughout with only one insurer.
+In such a case it might (perhaps) be said that, whichever particular inhalation(s) may have been responsible for the employees mesothelioma, it (or they) must have been insured.
+Even then, the logic of the Supreme Courts reasoning in Fairchild and Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10, [2011] 2 AC 229 might lead to the conclusion that causation was still unprovable in the light of the possibilities of environmental or idiopathic causation of mesothelioma.
+Rules regarding causation are created by the courts for the purpose of determining when liability arises in particular contexts.
+Normally, they reflect a common sense understanding of what is ordinarily understood when we speak of a cause in a particular context.
+In their leading work on Causation in the law (Clarendon Press, 2nd ed 1985) Professor H. L. A. Hart and Tony Honor examined both this understanding and its relationship to legal decision making.
+Generally, but not always, a cause must involve an act or omission that was at least a sine qua non of the injury in respect of which responsibility attaches (the but for test).
+But sometimes two separate acts or omissions may each independently have been sufficient to give rise to that injury (as when A and B simultaneously, but independently shoot C dead), and then we may as a matter of legal policy accept a weaker causal relationship for the imposition of responsibility: see p lxv in the preface to and p 123 of the 2nd edition.
+Other cases where causal requirements have been relaxed include Bonnington Castings Ltd v Wardlaw [1956] AC 613; there, materially contributing to part of an accumulation of dust which cumulatively led to pneumoconiosis gave rise to liability for the whole disease (although it has been suggested that some apportionment might now be possible in fact and law).
+Another relevant authority is McGhee v National Coal Board [1973] 1 WLR 1; there, liability for dermatitis was held to exist because the defendant had materially contributed to part of the claimants exposure to dirt, any part of which might, independently of any other, have given rise to the abrasion leading to the claimants dermatitis.
+It was recognised that this involved liability based on materially contributing to the risk of the injury.
+Lord Reid at p.4G H described the result as reached taking a broader view of causation, and Lord Wilberforce at p 5G viewed it as involving a conclusion as to the causal connection that had to exist between the default and the disease complained of.
+The contrary view (viz, that proof of risk was insufficient without proof that the risk caused or materially contributed to the disease) had a logic which Lord Wilberforce acknowledged, but rejected for policy and evidential reasons set out at p.6C F.
+In Fairchild, McGhee was seen as a precursor of the decision there reached.
+Putting aside the possibility of an idiopathic or environmental cause, a Fairchild type situation exists when (a) there are two separate potential causes exposing the claimant to the same risk, one involving an act or omission by the defendant, (b) either one of which causes would have been sufficient to give rise to the injury, and (c) one of which did so, but (d) neither of which can as a matter of probability be shown to have done so.
+Taking into account the later decisions in Barker v Corus and Sienkiewicz, the Fairchild principle extends to any case where there has been an act or omission exposing a person to asbestos, which exposure may have caused the mesothelioma, but which cannot be shown as a matter of probability to have done so.
+On that basis, the House held in Barker v Corus that each or any persons liability should only be proportionate to the extent that he had exposed another to the risk of mesothelioma.
+Parliament by the Compensation Act 2006 reversed that conclusion and made each such person liable in respect of the whole of the damage caused by the mesothelioma.
+Lord Phillips in his judgment addresses the basis of Fairchild in the light of Barker v Corus, the 2006 Act and Sienkiewicz.
+He accepts that, if Fairchild is now correctly to be understood as a special rule deeming employers who have exposed an employee to asbestos to have caused any subsequently suffered mesothelioma, then the insurance policies should apply (para 109).
+But he concludes that Fairchild must be understood as creating liability not for the disease, but for the creation of the risk of causing the disease.
+It follows in his view that employers and employees gain no assistance from the special rule in asserting that mesothelioma suffered by any person was caused or initiated in any particular policy period.
+On this basis, even though the insurances respond to injuries caused or initiated during their periods, the employers and employees fail for want of proof.
+It is not fruitful to repeat the exercise undertaken in Barker v Corus of examining in detail the significance of the speeches in Fairchild.
+The House was not agreed about this in Barker, but the majority speeches of Lords Hoffmann, Scott and Walker were at pains to reject any analysis of Fairchild as proceeding upon a fiction that each exposure had caused or materially contributed to the disease: see paras 31, 61 and 104; they each also referred to the liability created by Fairchild as being not for causing the disease, but for materially increasing the risk of the mesothelioma which was in fact suffered: paras 31, 36 and 40, 53, 61 and 113.
+Lord Rodger (dissenting) perceived the majority to be misinterpreting Fairchild by failing to acknowledge that it was based on an equation of materially increasing risk with materially contributing to causation, an equation which he thought had been accepted as sufficient causation in Bonnington Castings Ltd v Wardlaw [1956] AC 613 and McGhee v National Coal Board [1973] 1 WLR 1.
+It is on the apparently bright line distinction said to have been drawn by the majority in Barker between materially contributing to increasing the risk of, and causing, a disease that Lord Phillips now founds his judgment in these appeals.
+The Compensation Act 2006 applies where a person who has exposed someone to asbestos is liable in tort in connection with damage caused to the latter by mesothelioma whether by reason of having materially increased a risk or for any other reason (section 3(1)(d)).
+It makes the former person liable in respect of the whole of the damage (section 3(2)(a)).
+On its face, the Act assumes rather than creates the liability, and only alters the measure of recovery.
+That was the view expressed in Sienkiewicz by Lords Phillips, Rodger and Brown (paras 70, 131 and 183).
+However, on further analysis, the distinction identified in paragraphs 58 59 above proves more elusive.
+Even in Barker itself, Lord Walker described exposing the employee to the risk of mesothelioma as being equated with causing his injury and the result as an explicit variation of the ordinary requirement as to causation (para 104), and spoke of the rule as one by which exposure to the risk of injury is equated with legal responsibility for that injury (para 109).
+However, it is conceivable that he meant that the ordinary requirement of causation of the disease was entirely replaced by another liability creating rule.
+It is in the later authority of Sienkiewicz that the difficulty of drawing any clear cut distinction between creating a risk and causation of the disease becomes most apparent.
+Lord Phillips there stated that the rule in its current form was that the person responsible for the exposure and thus creating a material increase in risk of the victim contracting the disease will be held to be jointly and severally liable for causing the disease (para 1).
+Later, he said that the law was presently contained in Fairchild and Barker which had developed the common law by equating materially increasing the risk with contributing to the cause in specified and limited circumstances (para 70).
+That was the analysis of Fairchild advanced by Lord Rodger in Barker v Corus (paras 73 and 83) but rejected there by the majority.
+Lord Brown in Sienkiewicz spoke of a more relaxed approach to causation (para 178) and flexibility in the approach to causation (para 187).
+I referred to Fairchild and Barker as involving a special rule of causation (para 188), and Lord Kerr referred to them as involving a modification of the previously applicable legal rules in relation to the causation element in employers liability claims (para 196) and to adjustments in the burden of proof (paras 198 and 200).
+Lord Rodger was, on the other hand, loyal to the majority view in Barker by referring to liability as based on materially increas[ing] the risk (para 113), and Lord Dyson was cautious in speaking of materially increasing the risk of contracting the disease as sufficient to satisfy the causal requirements for liability (para 207).
+Lord Phillips has in para 123 set out a passage from an extra judicial commentary written by Lord Hoffmann in Perspectives on Causation (2011), p 8.
+In it, Lord Hoffmann describes the two ways in which the changes introduced by Fairchild and Barker could be characterised, one as changing the causal requirements for an action for damages for mesothelioma ; all that is necessary is to prove that the risk has been increased and that the specific exposure may have provided the actual agent; the other as creat[ing], exceptionally, a cause of action for the increased risk of mesothelioma, rather than for the disease itself.
+Lord Hoffmann notes that the House in Barker (Lord Rodger dissenting) adopted the second explanation of what had happened in Fairchild.
+But in the next sentence, not quoted by Lord Phillips, Lord Hoffmann went on: Parliament almost immediately reversed this decision by a statute giving effect to the first explanation, which had been advocated by Lord Rodger in his dissenting speech.
+Lord Hoffmanns extra judicial (or judicial) words cannot by themselves alter the true effect of a statute, but his comments do again show that the suggested distinction is more fluid than might at first appear.
+It is relevant to look more closely at what Barker decides.
+In Barker, Lord Hoffmann spoke of Fairchild as applying an exceptional and less demanding test for the necessary causal link between the defendants conduct and the damage (para 1) and of the requirement of a sufficient causal link between the defendants conduct and the claimants injury (para 17).
+In his note in Perspectives on Causation, he picked up this language with references to the causal requirements of the relevant rule and to the issues in cases of mesothelioma and analogous situations as involving the causal requirements for an action for damages for mesothelioma.
+Lady Hale in Barker also viewed the common law rules governing the measure of recovery as closely linked to the common laws approach to causation, and said that there was no reason in principle why the former rules should not be modified as the latter approach is courageously developed to meet new situations (para 122).
+In paras 123 and 124, she made clear that in her view the issue in Barker could be seen as arising from the expanded perceptions or developed concept of causation which the law had accepted.
+These citations all suggest that it is both possible and appropriate to characterise the position achieved by the common law after Barker v Corus as one concerned with the issue of the causal requirements or causal link, as between the defendants conduct and the disease, which the common law requires in order for there to be an action for mesothelioma.
+But analysis of the rule arrived at after Fairchild and Barker justifies further propositions.
+Despite the apparent clarity of the suggested distinction between liability for a risk and for a disease, no cause of action at all exists unless and until mesothelioma actually develops.
+Neither the exposure to asbestos nor the risk that this may one day lead to mesothelioma or some other disease is by itself an injury giving rise to any cause of action: see Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39, [2008] 1 AC 281; the House there decided that not even the emergence of pleural plaques marking the past exposure to asbestos constituted injury for the purpose of giving a cause of action.
+In order to fall within the principle in Fairchild and Barker, the development of mesothelioma is a pre condition: see Barker, per Lord Hoffmann (para 48) and Lord Scott (para 53).
+Lady Hale went further, stressing that she in fact agreed with Lord Rodgers view that the damage which is the gist of these actions is the mesothelioma and its physical and financial consequences.
+It is not the risk of contracting mesothelioma (para 120).
+In reality, it is impossible, or at least inaccurate, to speak of the cause of action recognised in Fairchild and Barker as being simply for the risk created by exposing someone to asbestos.
+If it were simply for that risk, then the risk would be the injury; damages would be recoverable for every exposure, without proof by the claimant of any (other) injury at all.
+That is emphatically not the law: see Rothwell and the statements in Barker itself, cited above.
+The cause of action exists because the defendant has previously exposed the victim to asbestos, because that exposure may have led to the mesothelioma, not because it did, and because mesothelioma has been suffered by the victim.
+As to the exposure, all that can be said (leaving aside the remote possibility that mesothelioma may develop idiopathically) is that some exposure to asbestos by someone, something or some event led to the mesothelioma.
+In the present state of scientific knowledge and understanding, there is nothing that enables one to know or suggest that the risk to which the defendant exposed the victim actually materialised.
+What materialised was at most a risk of the same kind to which someone, who may or may not have been the defendant, or something or some event had exposed the victim.
+The actual development of mesothelioma is an essential element of the cause of action.
+In ordinary language, the cause of action is for or in respect of the mesothelioma, and in ordinary language a defendant who exposes a victim of mesothelioma to asbestos is, under the rule in Fairchild and Barker, held responsible for and in respect of both that exposure and the mesothelioma.
+This legal responsibility may be described in various ways.
+For reasons already indicated, it is over simple to describe it as being for the risk.
+Another way is to view a defendant responsible under the rule as an insurer, but that too is hardly a natural description of a liability which is firmly based on traditional conceptions of tort liability as rooted in fault.
+A third way is to view it as responsibility for the mesothelioma, based on a weak or broad view of the causal requirements or causal link appropriate in the particular context to ground liability for the mesothelioma.
+This third way is entirely natural.
+It was adopted by Lords Reid and Wilberforce in McGhee, by Lord Hoffmann, Lady Hale and (possibly) Lord Walker in Barker and by Lord Hoffmann in his extra judicial commentary.
+It seems to have received the perhaps instinctive endorsement of a number of members of this Court, including myself, in Sienkiewicz.
+Ultimately, there is no magic about concepts such as causation or causal requirements, wherever they appear.
+They have the meanings assigned to them and understood in ordinary usage in their context.
+A logician might disagree with a reference to causation or a causal link in a particular context, but that is not the test of meaning: see Lord Wilberforces words in McGhee, p 6C F (cited in para 56 above).
+The present appeals concern the meanings we assign to the concept of causation, first in the context of considering employers liability to their employees and then in considering the scope of employers insurance cover with respect to such liability.
+It is instructive in this connection to look more closely at the Compensation Act 2006.
+Section 3(3) states that section 3(2) does not prevent (a) one responsible person from claiming a contribution from another, or (b) a finding of contributory negligence.
+Section 3(4) goes on to provide that [I]n determining the extent of contributions of different responsible persons in accordance with subsection (3)(a), a court shall have regard to the relative lengths of the periods of exposure for which each was responsible .
+Section 3(3) necessarily relates to the legal bases for claiming contribution or asserting contributory negligence, which are to be found in, respectively, the Civil Liability (Contribution) Act 1978 and the Law Reform (Contributory Negligence) Act 1945.
+The 1978 Act addresses the situation where two or more persons are liable in respect of the same damage (section 1(1)), while section 2(1) provides for contribution in such situations to be such as may be found by the court to be just and equitable having regard to the extent of that persons responsibility for the damage in question.
+Although under section 3(4) of the 2006 Act, the court must have regard to the relative lengths of the exposure for which each was responsible, the same damage which is a pre condition to the application of the 1978 Act must be the mesothelioma.
+It cannot be the risk created by the person by or from whom contribution is sought, because each person and exposure creates a separate risk, and no one person or exposure creates the total risk resulting from all exposures.
+The 2006 Act, by its reference to the 1978 Act, thus assumes that every person, who has exposed to asbestos a victim who later experiences mesothelioma, incurs responsibility for the mesothelioma.
+That language again fits an analysis whereby the rule in Fairchild and Barker identifies the appropriate weak or broad causal link between the exposure and the mesothelioma.
+A similar position applies under the 1945 Act.
+Under section 1(1), that Act applies [w]here any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons.
+In that event, the damages recoverable are to be reduced to such extent as the court thinks just and equitable having regard to the claimants share in the responsibility for the damage.
+The application of this section, as contemplated by the 2006 Act, is only possible on the basis that a mesothelioma sufferer may be said to have suffered the mesothelioma partly as the result . of the fault of anyone who has exposed him to asbestos. In other words, the rule in Fairchild and Barker must have been viewed by the drafters in my opinion entirely understandably as establishing a causal link, between the exposure and the mesothelioma, sufficient for it to be said that the mesothelioma was the result of each (and every) exposure.
+A similar view is also implicit in the provisions of the Act drafted on the basis that insurers who would commonly of course be employers liability insurers would be among the persons by or for whose benefit or against whom contribution would be sought in cases of multiple responsible persons: see section 3(7)(b) and (10)(a) of the 2006 Act.
+Those provisions necessarily assume that employers liability insurances, written generally on a causation basis, would respond to Fairchild/Barker type liability incurred by employers.
+Ultimately, the present appeals raise the questions how the present employers liability insurance policies respond as a matter of construction in circumstances within the rule in Fairchild and Barker.
+Where two contracts are linked, the law will try to read them consistently with each other.
+This is so with language in a bill of lading, incorporated from a charterparty: The Njegos [1936] P 90.
+A similar approach applies to language in a reinsurance incorporated from the insurance: Forsikringsaktieselskapet Vesta v Butcher [1989] AC 852 and Groupama Navigation et Transports v Catatumbo CA Seguros [2000] 2 Lloyds Reports 350, even though there is no guarantee that a reinsurance will in every possible circumstance that may develop pick up every liability that may be held to exist under an insurance: see Wasa International Insurance Co Ltd v Lexington Insurance Co [2009] UKHC 40, [2010] 1 AC 180.
+The intention under the present insurances must be taken to have been that they would respond to whatever liability the insured employers might be held to incur within the scope of the risks insured and within the period in respect of which they were insured.
+Thus, as Scrutton and Greer LJJ accepted in the Ellerbeck Collieries case (paragraph 34 above), an employers liability insurance could have been expected to respond to the conventional and artificial definition in the WCAs as to what constituted an accident and when personal injury by accident or disease was sustained for the purposes of employers liability to employees.
+Furthermore, if the common law during or even after the currency of an insurance develops in a manner which increases employers liability, compared with previous perceptions as to what the common law was, that is a risk which the insurers must accept, within the limits of the relevant insurance and insurance period.
+Eady J correctly identified this in Phillips v Syndicate 992 Gunner [2003] EWHC 1084 (QB), [2004] Lloyds Insurance and Reinsurance Reports 426, 429 (left).
+The declaratory theory does not presume the existence of an ideal system of the common law, which the judges from time to time reveal in their decisions.
+But it does mean that, when judges state what the law is, their decisions do . have a retrospective effect in the sense that the law as stated will, generally speaking, be applicable not only to the case coming before [them] but, as part of the common law, to other comparable cases which come before the courts, whenever the events which are the subject of those cases: Kleinwort Benson Ltd v Lincoln CC [1999] 2 AC 349, 378G H, per Lord Goff.
+The declaratory theory is a pragmatic tool, essential when cases can only come before the court some time, perhaps some years after the relevant events occurred, and when the law [must] be applied equally to all, and yet be capable of organic change (p 379A).
+A similar principle must, generally speaking, apply in relation to a statute such as the Compensation Act 2006, which changes or corrects the common law to what Parliament perceives to be a more appropriate result for the purposes of all future cases coming before the courts, whenever the events giving rise to them.
+In the case of that Act, the result was one which the courts might as a matter of common law well have themselves accepted (and which indeed Lord Rodger in his powerful dissent in Barker v Corus believed that the common law had accepted) in Fairchild.
+Concluding, as I have done, that the present insurances covered employers liability for injuries or diseases caused during the relevant insurance periods, the question is whether they cover employers liability for mesothelioma arising under the rule in Fairchild and Barker from having exposed employees to asbestos during such periods.
+It is not in dispute that, if the rule is characterised as a rule of deemed causation, then the policies must respond.
+A parallel example, so familiar that it is easy to overlook, is the vicarious liability to an employee, A, which rests on any employer, B, who has not himself been negligent but must answer vicariously for the negligence of another employee, C.
+We have no hesitation in saying that the employer B has in such a case caused the injury or disease suffered by A.
+But this is so in reality only because a rule of law requires us to equate the acts or omissions of C with those of B.
+The argument, accepted by Lord Phillips, is that the rule in Fairchild and Barker is not one of deemed causation of or, therefore, liability for the disease, but one of liability for the risk created by the exposure.
+For reasons which I have set out, I regard this distinction as too simple.
+The liability arises only because of the incurring of the disease and is for the disease.
+A condition of such liability is that the employer (negligently) exposed the victim to asbestos.
+The insurance policies, read as operating on a causation basis, are aimed at covering liability generated by employers activities during their insurance periods: see paragraphs 18 28 and 41 above; unless liability for mesothelioma flowing from negligent exposure during an insurance period is covered by the policies, this aspect of employers activities will not in practice be covered at all.
+In my view, these considerations justify a conclusion that, for the purposes of the insurances, liability for mesothelioma following upon exposure to asbestos created during an insurance period involves a sufficient weak or broad causal link for the disease to be regarded as caused within the insurance period.
+It would, I think, have been anomalous and unjust if the law by deeming there to have been causation of the disease could have created policy liability (which is common ground), but the law by insisting that the liability in respect of mesothelioma was for the risk of causation achieved a quite different result.
+As I have sought to show, it is not in any event accurate to treat the liability as being either solely or strictly for the risk.
+The risk is no more than an element or condition necessary to establish liability for the mesothelioma.
+The reality, reinforced by provisions in the 2006 Act, is that the employer is being held responsible for the mesothelioma.
+For this purpose, the law accepts a weak or broad causal link.
+The link is to exposure which may but cannot be shown on the ordinary balance of probabilities to have played a role in the actual occurrence of the disease.
+But for the purposes of the policies the negligent exposure of an employee to asbestos can properly be described as having a sufficient causal link or being sufficiently causally connected with subsequently arising mesothelioma for the policies to respond.
+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 rule in Fairchild and Barker.
+Viewing the point slightly more broadly, if (as I have concluded) the fundamental focus of the policies is on the employment relationship and activities during the insurance period and on liability arising out of and in course of them, then the liability for mesothelioma imposed by the rule in my opinion fulfils precisely the conditions under which these policies should and do respond.
+Conclusion
+I would therefore dismiss the appeals by insurers so far as they concern the policies with contracted wordings.
+I would allow the appeals against insurers, and dismiss the appeal by the Independent, so far as they concern policies with sustained wordings.
+ANNEX A The policy wordings (dates are approximate) (1) Excess First Wording (late 1940s): Whereas . (hereinafter called The Employer) carrying on the business of . has made a proposal . this Policy witnesseth that in consideration of the payment of . as premium to the Company on the estimated total amount, as set forth in the Schedule hereto, of the wages, salaries, and other earnings of Employees, a description of whom is set forth in the said Schedule (which premium is subject to adjustment as hereinafter provided) the Company agrees to indemnify the Employer in the manner following, namely That if at any time during the period commencing on theday of19 , and ending on theday of19 (both days inclusive) and for such further period or periods as may be mutually agreed upon, any employee in the Employer's immediate service shall sustain any personal injury by accident or disease while engaged in the service of the Employer in Great Britain, Northern Ireland, the Isle of Man or the Channel Islands, in work forming part of or process in the business above mentioned, and in case the Employer shall be liable to damages for such injury, either under or by virtue of the Common Law, the Fatal Accidents Acts 1846 to 1908, or the Law Reform (Miscellaneous Provisions) Act 1934, the Company will indemnify the Employer The Schedule required a description of the insured companys employees and their estimated total wages, salary and other earnings.
+Condition 1 of the policy further provided that: the Employer shall truly record in a wages book the name of every employee and the amount of wages, salary and other earnings paid to him.
+Second Wording (late 1950s to 1960s): Whereas the Employer . carrying on the business described in the .
+Schedule has made . a written proposal and declaration, containing particulars and statements which it is hereby agreed are the basis of this Contract . and has paid the premium mentioned in the Schedule, which premium is subject to adjustment as hereinafter provided, this Policy witnesseth that if at any time during the period of the indemnity as stated in the Schedule or during any subsequent period for which the Company may accept premium for the renewal of this Policy any person of a description mentioned in the Schedule who is under a contract of service or apprenticeship with the Employer shall sustain personal injury by accident or disease arising out of and in the course of employment by the Employer in work forming part of the process in the business mentioned in the Schedule, the Company will indemnify the Employer against liability at law for damages in respect of such injury or disease The policy provided that the Company should not be liable under it in respect of accidents occurring elsewhere than in Great Britain, Northern Ireland, the Isle of Man or the Channel Islands.
+The policy provided that premiums were to be regulated by the amount of wages, salaries, or other earnings paid to employees by the employer during each period of insurance, with a wages book being kept open to inspection for that purpose and the employer supplying the correct amounts within one month of the expiry of each insurance period.
+Condition 1 and the Schedule were in similar form to those in the first wording.
+Third Wording (1970 to 1976) After a recital in the same form as the second wording, this wording provided: that if at any time during the period of the indemnity as stated in the Schedule or during any subsequent period for which the Company may accept premium for the renewal of this Policy any person of a description mentioned in the Schedule who is under a contract of service or apprenticeship with the Employer shall sustain personal injury by accident or disease arising out of and in the course of employment by the Employer in the business mentioned in the Schedule, the Company will indemnify the Employer against liability at law for damages in respect of such injury or disease Under the third wording, there was the same territorial limitation as under the second wording in relation to accidents occurring elsewhere than in Great Britain, etc.
+Premiums were also regulated by reference to wages, salaries, etc. and condition 1 and the Schedule were in the same terms as in the second wording. (2) Independent Sole wording in Issue (1972 to 1987): This was a Contractors Combined Policy, covering Employers Liability (section 1), Public Liability (section 2) and Loss of or Damage to Contract Works (section 3).
+It provided: NOW THIS POLICY WITNESSETH that during the Period of Insurance or during any subsequent period for which the Company may accept payment for the continuance of this Policy and subject to the terms, exceptions and conditions contained herein and or endorsed hereon, the Company will indemnify the Insured as hereinafter specified.
+SECTION 1 EMPLOYERS' LIABILITY If any person who is under a contract of service or apprenticeship with the Insured shall sustain bodily injury or disease arising out of and in the course of his employment by the Insured in connection with the Contract specified or type of work described in the Schedule the Company will indemnify the Insured against all sums for which the Insured shall be liable at law for damages for such injury or disease The Policy provided that the Company was not to be liable for injury, illness, loss or damage caused elsewhere than in Great Britain, the Isle of Man or the Channel Islands.
+As a result of the ELCIA 1969 making insurance in respect of employers liability compulsory, the Independent wording also contained the further provision (the ELCIA extension provision): "AVOIDANCE OF CERTAIN TERMS AND RIGHT OF RECOVERY The indemnity granted by section 1 of this Policy is deemed to be in accordance with the provisions of any law relating to compulsory insurance of liability to employees in Great Britain.
+It is agreed the Insured shall repay to the Company all sums paid by the Company which the Company would not have been liable to pay but for the provisions of such law. " The policy Schedule contains spaces for entry of first, annual and minimum premium, as well as of the name of the Principal for whom the insured is undertaking work, the details of the contract or type of work covered by the policy and its situation.
+Condition 7 provides that the premium is based on estimates provided by the Insured, for record keeping, for the supply of updated information as required by the Company within one month of the expiry of each insurance period and for adjustment of the premium on that basis. (3) MMI First Wording (1949 to 1958) the Company hereby agrees that if at any time during the period of insurance specified in the schedule or thereafter during any subsequent period for which the Insured shall agree to pay and the Company shall agree to accept a renewal premium of the amount specified in the said schedule, or of such other amount as the Company shall from time to time require, any person under a contract of service with the Insured shall sustain any personal injury by accident or disease arising out of and in the course of his employment by the Insured in their activities described in the schedule and if the Insured shall be liable to pay damages for such injury or disease then, subject to the terms and conditions contained herein or endorsed hereon, the Company shall indemnify the Insured against all sums for which the Insured shall be so liable The policy was expressed not to apply to or include liability in respect of injury or disease caused elsewhere than in Great Britain, Northern Ireland, the Isle of Man or the Channel Islands.
+Condition 5 regulated premiums by reference to wages, salaries, etc, and made provision for a wages book and adjustment to like effect to the Excess second wording.
+The policy Schedule provided for the classification of staff and employees according to departments and job description, with corresponding figures for estimated total remuneration.
+Second Wording (1958 to 1974) the Company hereby agrees that if at any time during the First Period of Insurance specified in the said Schedule or during any subsequent period for which the Insured shall agree to pay and the Company shall agree to accept a renewal premium of the amount specified as the Renewal Premium in the said Schedule or of such other amount as the Company shall from time to time require, any person under a contract of service with the Insured shall sustain any bodily injury or disease arising out of and in the course of his employment by the Insured in the Insured's activities described in the said Schedule and if the Insured shall be liable to pay damages for such injury or disease or for death resulting from such injury or disease then, subject to the terms, exceptions and conditions contained herein or endorsed hereon or set out in the Schedule to this Policythe Company will indemnity the Insured against all sums for which the Insured shall be so liable.
+Like the first wording, this wording contained a territorial exclusion of liability in respect of injury or disease caused elsewhere than in Great Britain, etc.
+The policy Schedule provided for the entry of the Estimates (if any) on which the premium is calculated, including in particular any such estimate of wages, salaries, etc. paid to staff, and cross referred to condition 7, which provided that, if the premium had been based on any estimates, an accurate record should be kept (of actual amounts), the insured should provide insurers with such particulars and information as might be required within one month of the expiry of the policy period and the premium adjusted accordingly.
+Third Wording (1974 to 1992) The Company agrees to indemnify the Insured in respect of all sums without limit as to amount which the Insured shall be legally liable to pay as compensation for bodily injury or disease (including death resulting from such bodily injury or disease) suffered by any person under a contract of service or apprenticeship with the Insured when such injury or disease arises out of and in the course of employment by the Insured and is sustained or contracted during the currency of this Policy.
+The policy Schedule contemplated a premium adjustable in accordance with condition 5, which in turn provided (in like manner to condition 7 of the second wording) for the adjustment of any premium so calculated by reference to actual amounts at the end of the policy period. (4) BAI First Wording (1953 to 1974) . the Company willindemnify the Insured against all sums of money which the Insured may become liable to pay to any Employee engaged in the direct service of the insured or any dependent of such Employee in respect of any claim for injury sustained or disease contracted by such Employee betweenandboth inclusive The policy carried the note: This policy does not cover the insureds liability for accidents to workmen arising outside the United Kingdom.
+Conditions 1 and 2 made elaborate provision for the regulation of premiums by the amount of wages, salaries, or other earnings paid to employees by the employer during each period of insurance, with pay sheets and books of account being kept open to inspection for that purpose and the employer making a return, and the premium being adjusted, subject to a minimum, at the end of each insurance period.
+Second Wording (1974 to 1983) the Company willindemnify the Insured against all sums of money which the Insured may become legally liable to pay in respect of any claim for injury sustained or disease contracted by any person engaged in and upon the service of the Insured and being in the Insured's direct employment under a Contract of Service or Apprenticeship between theday ofand theday ofboth inclusive This wording also excluded insurers from liability in respect of accidents to employees arising outside the United Kingdom.
+Like the Independent and third MMI wordings, the BAI second wording also included the ELCIA extension provision.
+Conditions 1 and 2 provided for the regulation and adjustment of premiums by reference to actual wages, salaries, etc. during each insurance period, in like terms to conditions 1 and 2 in the first wording. (5) Zurich The Municipal First Select wording (1993 to 1998) The INSURER will indemnify the INSURED in respect of all sums which the INSURED may become legally liable to pay as damages and claimants' costs and expenses in respect of Injury sustained during the Period of Insurance by any EMPLOYEE arising out of and in the course of employment by the INSURED in the BUSINESS within the Geographical Limits.
+The Municipal Second Select wording (1998 ) The INSURER will indemnify the INSURED in respect of all sums which the INSURED may become legally liable to pay as damages and claimants' costs and expenses in respect of Injury caused during the Period of Insurance to any EMPLOYEE arising out of and in the course of employment by the INSURED in the BUSINESS within the Geographical Limits.
+The tariff wording (1948 ) if any person under a contract of service or apprenticeship with the Insured shall sustain any personal injury by accident or disease caused during the period of insurance and arising out of and in the course of his employment by the Insured in the business above mentioned and if the Insured shall be liable to pay damages for such injury or disease the Association shall indemnify the Insured against all sums for which the Insured shall be so liable.
+LORD CLARKE
+Like other members of the Court, I agree with Lord Mance on the construction issue.
+Thus I agree that, for the purposes of the EL policies, mesothelioma is sustained or contracted when the process that leads to the disease is initiated as a result of the wrongful exposure of the employee to the asbestos fibre or fibres which cause the disease.
+I do not wish to add to Lord Mances reasoning on the construction issue.
+I do however wish to add some words of my own on the causation issue which sharply divides Lord Phillips and Lord Mance.
+I wish to say shortly why I prefer the conclusion of Lord Mance to that of Lord Phillips.
+As I see it, the effect of Fairchild, Barker and Sienkiewicz may be summarised in this way.
+An employer who, in breach of duty, has exposed an employee to asbestos is liable in damages if the employee subsequently suffers the disease.
+The employees cause of action is not that he was exposed to the risk of mesothelioma.
+He has no claim unless he in fact suffers the disease.
+It is the disease which represents the damage which completes the cause of action and it is only then that his cause of action accrues and the relevant time limit begins to run.
+It is axiomatic that, in order to succeed in tort, the employee must show a sufficient causal link between the breach of duty, namely the exposure to asbestos, and the disease which represents the damage, namely mesothelioma.
+The effect of the majority opinion in Barker is that, where there are two or more employers who have exposed the claimant to the risk of mesothelioma, they are not jointly and severally liable to the claimant for the whole of the consequences of the disease but only severally liable for an aliquot part.
+That decision was reversed by the Compensation Act 2006, so that such employers are jointly and severally liable for the whole of the consequences.
+The question in this appeal is whether the employers liability insurers are liable to indemnify the employers in respect of that liability.
+It would in my opinion be a remarkable result if they were not.
+Lord Phillips notes at para 109 that Mr Edelman QC accepted that, if the correct analysis of the special rule, which (using Lord Phillips definitions) was the result of the combined effect of the special approach in Fairchild and Barker and the Compensation Act 2006, was that the employers were deemed to have caused mesothelioma by exposing the employees to asbestos dust, the insurers would be liable.
+Lord Phillips accepts that that concession was correctly made.
+I agree, for the reasons he gives at paras 109 to 114.
+The question is therefore whether the correct analysis of the special rule is indeed that the employers were deemed to have caused the mesothelioma.
+I accept that in such a case the employee cannot show on the balance of probabilities that the employers negligence caused the disease.
+The effect of Fairchild and Sienkiewicz was however that the employer is liable where the exposure contributed to the risk that the employee would suffer the disease and where the employee in fact suffers the disease.
+That is not in dispute.
+Lord Phillips says at para 124 that the majority in Barker drew the vital distinction between being liable for contributing to the cause of the disease and being liable for the creation of the risk of causing the disease.
+He quotes para 2 of Lord Hoffmanns speech as follows: Is any defendant who is liable under the exception deemed to have caused the disease? On orthodox principles, all defendants who have actually caused the damage are jointly and severally liable.
+Or is the damage caused by a defendant in a Fairchild case the creation of a risk that the claimant will contract the disease? In that case, each defendant will be liable only for his aliquot contribution to the total risk of the claimant contracting the disease a risk which is known to have materialised.
+Lord Phillips further notes that at para 125 Lord Hoffmann advanced the thesis that the basis of liability was the wrongful creation of the risk or chance of causing the disease and that the damage that the defendant should be regarded as having caused was the creation of such risk or chance.
+See also the passages to like effect referred to by Lord Mance at para 61.
+I accept that Lord Hoffmann and others did indeed advance that view of Fairchild but it is I think important to note that it was in the context of the question whether, in a case of two or more employers, each was severally liable for a proportion of the consequences of the mesothelioma or whether each was jointly and severally liable for the whole.
+Lord Hoffmann cannot have intended to hold, without more, that the basis of liability was the wrongful creation of the risk or chance of causing the disease because there would be no liability at all but for the subsequent existence of the mesothelioma.
+It seems to me that, whether the majority in Barker were correct or not, there is no escape from the conclusion that, in all these cases, where it is not possible to show that the particular employer caused the claimant to suffer mesothelioma, the underlying question is who should be held responsible for causing the mesothelioma which in fact struck down the employee.
+None of the cases is authority for the proposition that causation is irrelevant.
+On the contrary, the quest is for the employer who can fairly be held liable for the consequences of the disease and therefore for the employer who can fairly be said to have caused the disease.
+The courts have embarked on similar quests over the years.
+Lord Mance has given a number of examples.
+As Lord Mance shows at para 56, they include Bonnington and McGhee, where Lord Reid was prepared to take a broad view of causation and Lord Wilberforce rejected a traditional approach for policy or evidential reasons.
+In my opinion the reasoning in Sienkiewicz is of some significance in this context.
+Lord Mance has given the relevant references in para 61.
+Thus, as Lord Mance observes, at para 61 Lord Phillips said that Fairchild and Barker had developed the common law by equating materially increasing the risk with contributing to the cause in specified and limited circumstances.
+Lord Mance further refers to Lord Brown speaking of a more relaxed approach to causation and flexibility in the approach to causation at paras 178 and 187.
+Lord Mance had himself referred to Fairchild and Barker as involving a special rule of causation at para 188, and Lord Kerr referred to them as involving a modification of the previously applicable legal rules in relation to the causation element in employers liability claims at para 196 and to adjustments in the burden of proof at paras 198 and 200.
+Again, as Lord Mance observes at para 61 above, Lord Dyson referred (at para 207) to materially increasing the risk of contracting the disease as sufficient to satisfy the causal requirements for liability (para 207).
+Both Mr Beloff QC and Mr Stuart Smith QC addressed these issues in their oral submissions.
+They both in effect submitted that the effect of Fairchild, Barker and Sienkiewicz was that the employers were deemed to have caused mesothelioma by exposing the employees to asbestos dust.
+They both recognised that the ordinary rule of causation could not apply and that some element of policy or doctrine was required in order to explain Fairchild.
+Mr Stuart Smith submitted that the effect of Fairchild was that each material exposure to asbestos dust is doctrinally held responsible for the mesothelioma.
+Mr Beloffs submission was to much the same effect.
+He relied upon a dictum of Lord Walker in Barker at para 109: A rule of law by which exposure to risk of injury is equated with legal responsibility for that injury entails the possibility that an employer may be held liable for an injury which was not in fact caused by that exposure (though in the present state of medical science, that fact can be neither proved nor disproved).
+The injury is of course the mesothelioma, which is necessary to complete the cause of action.
+On that basis it seems to me that Lord Walkers statement that the risk of injury is equated with legal responsibility for the injury is in effect to say that, by creating the risk of mesothelioma in the future, the employer is deemed to have caused the mesothelioma, if it should develop in the future.
+It appears to me that these conclusions are supported by Lord Mances analysis of section 3 of the Compensation 2006 at paras 67 and 68, with which I agree and to which I do not wish to add anything.
+Given Mr Edelmans concession that, if that is correct, the employers are liable under the policies (and this Courts acceptance of it) I would hold that the causation point does not assist the insurers.
+I would only add this.
+It appears to me that, once it is held that, on these facts, the employers are liable to the employees, it would be remarkable if the insurers were not liable under the policies.
+Rather as in AXA, the whole purpose of the policies was to insure the employers against liability to their employees.
+That purpose would be frustrated if the insurers submissions on this point were accepted.
+I agree with Lord Mance, for the reasons he gives at paras 69 73 that these policies respond to these claims.
+For these reasons, I too would dismiss the appeals by insurers so far as they concern the policies with contracted wordings.
+I would allow the appeals against insurers, and dismiss the appeal by the Independent, so far as they concern policies with sustained wordings.
+LORD DYSON
+I too agree with Lord Mance on the construction issue.
+As to the causation issue, I agree with the reasoning of Lord Mance and Lord Clarke.
+Accordingly, I would dismiss the appeals by insurers in so far as they concern the policies with contracted wordings.
+I would allow the appeals against insurers, and dismiss the appeal by the Independent, so far as they concern policies with sustained wordings.
+LORD PHILLIPS
+Introduction
+So called long tail industrial diseases have raised peculiar difficulties in the field of tort.
+These diseases result from the effect on the body of exposure to noxious substances.
+The effect can be long, drawn out and mysterious, in as much as medical science has not yet identified the precise mechanism, or chain of causation, by which the noxious substance causes the disease.
+Mesothelioma is a long tail disease in which the problems raised have been particularly acute.
+The problems arise in the application of principles of law that do not ordinarily give rise to difficulty.
+An employer will be liable in damages if by an act or omission that is negligent or in breach of statutory duty he causes physical harm to an employee.
+In the vast majority of cases there will be no difficulty in identifying the moment at which the negligence or breach of duty causes the physical harm, for the harm will take the form of an obvious injury.
+This is not the position in respect of mesothelioma.
+Asbestos dust, inhaled into the lungs, is the agency that causes mesothelioma, but as long as forty or fifty years may elapse before the effects on the body of dust inhaled culminate in symptoms of mesothelioma.
+Once the symptoms are felt, the disease will develop swiftly to bring about an inevitable and extremely unpleasant death.
+Where a victim of mesothelioma was exposed to asbestos dust over a period of years it is impossible, even with hindsight, to determine on balance of probabilities whether dust inhaled in a particular year caused or contributed to the development of the mesothelioma.
+It follows that, where the victim worked for a series of employers, each of whom exposed him to asbestos dust, it is impossible to prove on balance of probability that any particular employer caused or contributed to the victims mesothelioma.
+This means that the normal principles of the law of tort provide no remedy to the employee or his dependants.
+The manifest injustice of this position led the House of Lords in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32 and Barker v Corus UK Ltd [2006] UKHL 20; [2006] 2 AC 572 to create what I shall describe as a special approach to causation in respect of mesothelioma, whose effect was immediately varied by Parliament by section 3 of the Compensation Act 2006.
+I shall describe the composite result achieved by the House of Lords and Parliament as the special rule.
+I shall examine the nature of this special rule in due course.
+Its effect was, however, to place each employer in the same position as that employer would have been under at common law if it were proved, on balance of probability, that its negligence or breach of duty in exposing the employee to asbestos dust had contributed to causing the employees mesothelioma.
+These developments of the law of tort have formed the backdrop to the issue that has occupied almost all of the eight days that this Court has devoted to this appeal.
+I shall call this issue the construction issue.
+The construction issue relates to the true construction of a number of policies of insurance against employers liabilities (EL policies) with similar, but not identical, provisions as to the cover provided.
+The EL policies provided cover by reference to specific periods usually of a year.
+The central issue relates to the event or events that, on true construction of each policy, had to occur within the period of the policy in order to render the insurer liable to indemnify the employer in respect of liability for causing an employees mesothelioma.
+The policies provided cover in respect of diseases sustained or contracted during the period of the policy.
+The meaning of each of those words, in its context, lies at the heart of the construction issue.
+It does not seem that the construction issue initially received a great deal of consideration.
+Insurers treated the policies as if they covered an employer whose breach of duty within the period of the policy had contributed to causing the disease and regarded this requirement as satisfied if the employer was held liable because he had exposed the employee to asbestos dust during that period.
+Where more than one insurer was liable on this basis, they apportioned liability according to the period of exposure covered by each.
+The attitude of four of the five insurers party to this appeal changed as a result of the decision of the Court of Appeal in Bolton Metropolitan Borough Council v Municipal Mutual Insurance Ltd [2006] EWCA Civ 50; [2006] 1 WLR 1492.
+Those insurers are MMI, Excess, BAI and Independent, each of which is in run off.
+I shall describe them collectively as the insurers.
+Their opponents I shall describe collectively as the employers, although they embrace solvent employers, individuals claiming under the Third Party (Rights against Insurers) Act 1930, and Zurich, which has a community of interest with these.
+Bolton concerned the scope of cover of a public liability policy (PL policy) in relation to liability for causing mesothelioma.
+The policy provided cover in respect of an injury that occurs during the currency of the policy.
+The argument proceeded on the premise that the chain of causation of mesothelioma, once it was diagnosed, could be traced back to the initial inhalation of asbestos dust.
+The issue was whether the mesothelioma could properly be said to have occurred at the time of the initial inhalation.
+The Court of Appeal held that it could not.
+The injury only occurred, at earliest, at the stage of development of the disease at which malignancy occurred.
+This was, on the evidence, ten years, give or take a year, from the date on which it became possible to diagnose the existence of the tumour but very many years after the initial inhalation of asbestos dust.
+This decision led the insurers to take the point that a similar approach should be taken to the interpretation of the cover afforded by the EL policies.
+Mesothelioma was not, on true construction of the policies, sustained or contracted at the time of the initial inhalation of asbestos dust.
+It was only sustained or contracted at the much later stage when, as a consequence of the process initiated by asbestos dust, an actionable injury in the form of malignancy, developed.
+Before Burton J, the Court of Appeal and this Court the construction issue has been argued at great length and in great detail.
+I agree, as do the other members of the Court, with the conclusions reached by Lord Mance on the construction issue.
+These conclusions have application not merely to mesothelioma but to employers liabilities in relation to other long tail industrial diseases such as asbestosis and pneumoconiosis.
+For the purpose of EL policies, these diseases are sustained or contracted when the process that leads to the disease is initiated as a result of the wrongful exposure of the employee to the noxious substance that causes, or contributes to the cause or the extent of, the disease.
+Throughout the hearing of this appeal there has lurked a second issue.
+It has not been the subject of argument below, nor does it feature in the agreed Statement of Facts and Issues.
+This is, perhaps, because it relates to a point that does not arise out of Bolton.
+It has always been there for the taking, but insurers have not hitherto chosen to raise it, perhaps because its consequences are unattractive.
+It arises out of a problem that is similar to that which led the House of Lords to formulate the special approach in Fairchild and Barker.
+It is not possible for an employer to prove that an employees mesothelioma was, in fact, caused in whole or in part by any particular period of exposure to asbestos dust.
+Thus the employer cannot prove, on balance of probability, that the mesothelioma for which he has been held liable under the special rule was, in fact, initiated in any particular policy year.
+How, then, can he prove that his liability falls within the scope of the cover, even if the policy bears the construction contended for by the employers and upheld by this Court? How can he prove that his liability arises out of disease sustained or contracted within the policy period, giving these words the same meaning as initiated? I shall call this issue the causation issue.
+The causation issue and the judgments below
+Although the causation issue was not raised in argument below, it was dealt with, at least implicitly, in the judgments of both courts.
+Burton J at first instance, and Rix and Stanley Burnton LJJ in the Court of Appeal proceeded on the basis that, in the case of a mesothelioma victim, exposing the victim to asbestos dust could be treated as equivalent to causing his disease.
+This approach was based on the special rule.
+Thus Burton J at paras 42 to 58 summarised, without significant comment, what he described as the special mesothelioma jurisprudence as it was at the time of his judgment.
+This included Fairchild, Barker and the 2006 Compensation Act.
+He thereafter proceeded on the basis that exposing a mesothelioma victim to asbestos dust could be treated as having been equivalent to causing the victim to contract the disease.
+Thus, when summarising his conclusions at para 243 he said: I conclude, in relation to the policies in issue before me, that they respond, just as would policies with caused wording, to claims against insurers where employers are liable on the basis of inhalation by employees during the policy period.
+They respond, consistently with other EL policies, in respect of mesothelioma claims, on an exposure basis.
+For the purposes of these policies, injury is sustained when it is caused and disease is contracted when it is caused, and the policies fall to be so construed.
+Rix LJ drew a distinction between the meaning of contracted and sustained.
+Contracted referred to the time of the diseases causal origins para 245.
+He felt constrained by Bolton, however, to hold that no injury was sustained until the disease reached the malignant stage.
+Implicit in his judgment was the premise that exposure to asbestos dust during the period of the policy could be treated as the causal origin of the disease see for example his comments at para 244.
+A difficult passage in his judgment at paras 280 283, when considering the meaning of injury, suggests that this premise was founded on the special rule.
+Thus he was able to conclude that the disease was contracted at the time that the victim was exposed to asbestos dust albeit that injury was not sustained at that point.
+In a short judgment Stanley Burnton LJ adopted similar reasoning.
+He stated, at para 338: We are agreed that in any year in which there was substantial exposure to asbestos, mesothelioma was caused by that exposure during that year.
+The fact that the disease did not develop for some years does not break the chain of causation.
+Submissions on the causation issue
+The causation issue was not raised by the insurers as a discrete issue.
+It none the less surfaced in a passage of the written case for Excess that was addressing the employers case that personal injury by disease was sustained at the moment of inhalation of asbestos dust that triggered the process of sustaining personal injury by disease.
+One of the arguments advanced by Excess in answer to this submission read as follows: Medically and empirically, one cannot be said to have suffered an injury on a particular day because it cannot be known in (say) a 10 year occupational exposure period on which of the 3652 days the fatal dose was inhaled (and it may be on more than one).
+It is likely that any ingestion on a particular day was irrelevant to the development of the final condition.
+There has been a tendency on the part of the claimants to treat inhalation as a single event from which an unbroken line can be drawn to malignancy.
+It is not.
+Inhalation (and hence on this theory) injury may occur over several thousands of days.
+Each day does not bring injury.
+Any particular day cannot therefore be selected as injury day.
+To overcome problems of medical causation in a personal injury action against an employer, the House of Lords extended the McGhee principle to mesothelioma in Fairchild.
+However this was a rule of causation and not definition.
+There is no such rule in insurance policies which defines what amounts to an injury.
+The Supreme Court in Sienkiewicz stressed the limits of the Fairchild exception in no uncertain terms, and it is submitted that it would be quite wrong for it now to invade the law of contract.
+A liability policy responds only to indemnify against a liability (i.e. actionable injury).
+There is no such liability on inhalation.
+Injury occurs when the claimant has a personal injury by disease.
+Thus Excess took the point that the special rule could not properly be invoked to establish that, on true construction of the contracts of insurance, injury was sustained upon inhalation of asbestos dust.
+This passage appeared after a submission at para 209 that it was only possible to equate the inhalation of a culpable quantity of asbestos dust with sustaining personal injury by disease by, inter alia, creating a special rule governing the response of EL policies in respect of mesothelioma, and possibly other long tail diseases.
+This proved to be what counsel for the employers sought to do when invited by the Court to address the causation issue.
+They did so in short oral submissions that cannot, when taken together, have occupied more than half an hour of the eight day hearing.
+The relevant submissions made by Mr Beloff QC for Akzo and AMEC and the Local Authorities are reported at pp 120 122 of the transcript for 15 December 2011.
+He started by observing that we had to cut the Gordian knot.
+He suggested that we should do so by equating creation of a risk with causing bodily injury.
+This he submitted was permissible because the object of the policy was to provide cover to an employer who, in breach of duty to employees, caused them compensatable damage.
+Were this approach not adopted, it would be impossible to show that any of a number of insurers providing cover over a period of years was liable.
+The law should rebel against such a result.
+In support of this submission Mr Beloff cited a statement by Lord Walker of Gestingthorpe in Barker at para 109 suggesting that the special approach to mesothelioma equated the exposure to the risk of injury with legal liability for the injury.
+Mr Stuart Smith QC for Zurich dealt with the causation issue at rather greater length in a passage reported at pp 126 to 131 of the same transcript.
+He started by accepting that it was impossible to know when the metabolic changes that led to the development of mesothelioma in fact occurred.
+Fairchild dealt with this problem by creating a doctrinal rule under which each significant exposure to asbestos dust was held to be responsible for the mesothelioma.
+Thus doctrinally the process of developing mesothelioma started upon inhalation.
+This doctrinal framework for the application of the law of tort was that within which policies of insurance against tortious liability had to operate.
+Mr Stuart Smith agreed with this summary of his argument advanced by Lord Mance: If the law of tort treats someone, an employee, as having sustained a personal injury and treats the employer as liable to pay damages for such personal injury, then the policy answers.
+These submissions on behalf of the employers raise the following questions: i) Will the policies respond to fictional or doctrinal events that are deemed to have occurred under the special rule? If so: ii) Does the special rule deem that events have occurred to which the policies should respond? If not: iii) Can this Court properly reformulate the special rule in such a way as to require the policies to respond? Will the policies respond to fictional or doctrinal events?
+On the premise that he failed on the construction issue, Mr Edelman accepted that, if the correct analysis of the special rule was that the employers were deemed to have caused the mesothelioma by exposing the victims to asbestos dust, then the policies should properly respond.
+Because of the view that I take of the next two questions I do not need to decide whether the concession was properly made.
+I have, however, concluded that it was.
+The policies exist to provide protection against employers liability in tort.
+If the law of tort, whether laid down by the courts or by Parliament, resorts to legal or doctrinal fictions, it seems logical that the policies should respond as if the fictions were facts.
+A purposive approach to construction of the policies would lead to this result.
+Two examples illustrate this approach.
+Ellerbeck Collieries Ltd v Cornhill Insurance Co Ltd [1932] 1 KB 401 involved a policy of insurance against liability under the Workmens Compensation Act 1925.
+The terms of the policy entitled the employer to indemnity if at any time during the currency of the insurance any employee sustained any personal injury by accident or disease.
+The 1925 Act imposed a fictitious test for identifying when an industrial disease was sustained, namely the date on which a certifying surgeon issued a certificate that the employee was suffering from the disease.
+On the strength of a certificate issued within the currency of a policy of insurance an employer was held liable to two workmen who had, in fact, sustained the relevant disease before the period of the insurance began.
+The Court of Appeal held that this liability fell within the cover of the policy.
+The argument for applying the fictional date was a strong one because, as Greer LJ observed at p 417, the policy was intended to cover the employers liability under the Act.
+The parallel between Ellerbeck and the present case would have been stronger had the relevant policies been taken out after the special rule had been created.
+In Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39, [2008] AC 281 the House of Lords held that pleural plaques caused by exposure to asbestos dust did not constitute actionable injury because they produced no adverse physical effects.
+The Scottish Parliament responded to this decision by introducing the Damages (Asbestos related Conditions) (Scotland) Act 2009 (the Scottish Act).
+That Act provides by section 1 that asbestos related pleural plaques constitute a personal injury which is not negligible and that accordingly they constitute actionable harm for the purpose of an action for damages for personal injury.
+In AXA General Insurance Ltd v HM Advocate [2011] UKSC 46, [2011] 3 WLR 871 the Supreme Court rejected a challenge by insurers to the lawfulness of this Act.
+The Scottish Act effected a limited alteration to the common law in decreeing that asymptomatic pleural plaques constituted non negligible personal injury and thus actionable damage.
+Lord Mance at para 88 suggested that the main target of the legislation was employers insurers.
+He went on at para 89 to consider whether the Act would, in fact, alter the meaning to be given to bodily injury under a policy of insurance: A Scottish Act will not on the face of it change the legal effect of an English insurance contract, even in Scotland.
+However, depending upon the particular policy language, the scope of the concept of bodily injury under a worldwide policy may respond to different conceptions of bodily injury in different parts of the world.
+Here, the question would be whether it would respond to a development or change, such as that introduced retrospectively by the 2009 Act, in the conception of bodily injury.
+I say no more about the answer, which may be elicited in another context or suit.
+While Lord Mance left open the effect of the Scottish Act on the construction of policies of liability insurance, Lord Brown was in no doubt that the effect of the Scottish Act was to subject insurers to liabilities to which they would not have been subject prior to that Act.
+He referred at para 80 to the undoubted, and deliberate, impact of the legislation upon pending claims.
+Earlier, at para 77, he drew an analogy with the effect of the decision in Fairchild on EL insurers liability: Had the House of Lords in Rothwell decided that asymptomatic pleural plaques of themselves constitute a non negligible personal injury and thus actionable damage decided in other words that in this particular context the common law should develop in this admittedly novel way the appellants would doubtless have deplored the decision but they could certainly not have questioned its legitimacy.
+No doubt they would have resented the fact that, as a consequence of the decision, they would unexpectedly have had to pay out on claims resulting from the employees exposure to asbestos upwards of 20 years (quite likely up to 40 years) previously.
+But they could no more have advanced an [article 1, Protocol 1] challenge to this development of the law than they could have challenged the House of Lords decision some four years earlier in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 to adopt a less stringent than the usual but for test for establishing the necessary causal connection between an employers negligence and a claimants condition in, most notably, mesothelioma cases.
+Employers (and their liability insurers) necessarily take the risk of the common law developing in ways which may adversely affect them with regard to personal injury claims.
+In this passage Lord Brown assumed that the effect of Fairchild was to bring employers liabilities in respect of mesothelioma within the scope of the cover afforded by EL policies.
+I am about to consider whether he was correct in this.
+I agree, however, with the general principle expressed in the last sentence of the extract from his judgment that I have just cited.
+It is for this reason that I would give an affirmative answer to the first of the three questions posed at para 108 above.
+I turn to the second.
+What is the special rule?
+The employers submissions on the causation issue proceed on the premise that the special rule deems exposure to asbestos dust of an employee who is subsequently diagnosed with mesothelioma to have been a cause of the mesothelioma.
+I have reached the conclusion that that premise is unsound.
+In Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10; [2011] 2 AC 229 I summarised the special rule as follows at para 1: When a victim contracts mesothelioma each person who has, in breach of duty, been responsible for exposing the victim to a significant quantity of asbestos dust and thus creating a material increase in risk of the victim contracting the disease will be held to be jointly and severally liable for causing the disease.
+This is certainly the effect of the special rule, but in order to discover the juridical basis of the rule it is necessary first to identify the basis of the special approach adopted by the House of Lords in Fairchild and Barker and then to consider the effect of section 3 of the Compensation Act, which adapted the special approach into the special rule.
+The special approach
+In Sienkiewicz, at para 70, I stated that Fairchild and Barker developed the common law by equating materially increasing the risk with contributing to the cause in specified and limited circumstances, which include ignorance of how causation in fact occurs.
+As I shall show, this was not an accurate summary of the special approach adopted in those cases.
+In Fairchild the House of Lords confronted the position where a mesothelioma victim had worked consecutively for a number of employers, each of which had exposed him to asbestos dust.
+One or more of these had caused his mesothelioma, but because of the limits of medical knowledge it was not possible, on balance of probability, to identify which.
+In these circumstances their Lordships adopted a special approach that enabled them to find that each of the employers was jointly and severally liable for the mesothelioma.
+In doing so they purported to be following a similar approach adopted by the House of Lords in McGhee v National Coal Board [1973] 1 WLR 1.
+They were not, however, all agreed as to the basis of that approach.
+Lord Hutton, at para 109, held that it was based on the drawing of a factual or legal inference leading to the conclusion that the breach of duty [in exposing the employee to asbestos dust] was a cause of the disease.
+The majority of the House did not agree.
+Lord Bingham said, at para 35: I prefer to recognise that the ordinary approach to proof of causation is varied than to resort to the drawing of legal inferences inconsistent with the proven facts.
+Lord Nicholls of Birkenhead said, at para 42: So long as it was not insignificant, each employer's wrongful exposure of its employee to asbestos dust, and, hence, to the risk of contracting mesothelioma, should be regarded by the law as a sufficient degree of causal connection.
+This is sufficient to justify requiring the employer to assume responsibility for causing or materially contributing to the onset of the mesothelioma when, in the present state of medical knowledge, no more exact causal connection is ever capable of being established."
+Lord Hoffmann at para 65 rejected the suggestion that the House in McGhee held that materially increasing the risk of the disease should be treated as equivalent to material contributing to the injury.
+He concluded: I would respectfully prefer not to resort to legal fictions and to say that the House treated a material increase in risk as sufficient in the circumstances to satisfy the causal requirements for liability.
+Lord Rodger of Earlsferry did not agree.
+His reasoning was close to that of Lord Hutton.
+He held, at para 168: Following the approach in McGhee I accordingly hold that, by proving that the defendants individually materially increased the risk that the men would develop mesothelioma due to inhaling asbestos fibres, the claimants are taken in law to have proved that the defendants materially contributed to their illness.
+What then happened has been summarised by Lord Hoffmann in Perspectives on Causation (2011) at p 8: There are two ways in which one could characterise this change in the substantive law of negligence.
+One is to say that the causal requirements for an action for damages for mesothelioma have been changed; all that is necessary is to prove that the risk has been increased and that the specific exposure may have provided the actual agent.
+The other is to say that the House created, exceptionally, a cause of action for the increased risk of mesothelioma rather than for the disease itself.
+In the former case, satisfying the new causal requirement would entitle the claimant to sue for the whole injury caused by contracting the disease.
+In the latter case, he would be able to sue only for the loss caused by the risk of his contracting the disease having been increased.
+That would be a proportion of the injury caused by the disease, depending on the extent to which the risk had also been created by other causes.
+In Barker v Corus the House of Lords (Lord Rodger of Earlsferry dissenting) adopted the second explanation of what had happened in Fairchild.
+I believe that this summary of the position is essentially correct.
+The majority in Barker were persuaded that justice would best be served if the special approach adopted in Fairchild were applied in such a way as to render each defendant who had wrongfully exposed the claimant to asbestos dust severally liable for that proportion of the mesothelioma that represented the proportion of the wrongful exposure attributable to that defendant.
+This was achieved by holding that the liability of each defendant resulted from adding to the risk that the employee would contract mesothelioma.
+It did not result from an implication that each defendant had actually contributed to the cause of the disease.
+At the start of his speech at para 2 Lord Hoffmann drew the vital distinction between being liable for contributing to the cause of the disease and being liable for the creation of the risk of causing the disease: Is any defendant who is liable under the exception deemed to have caused the disease? On orthodox principles, all defendants who have actually caused the damage are jointly and severally liable.
+Or is the damage caused by a defendant in a Fairchild case the creation of a risk that the claimant will contract the disease? In that case, each defendant will be liable only for his aliquot contribution to the total risk of the claimant contracting the disease a risk which is known to have materialised.
+Lord Hoffmann went on to adopt the latter analysis as the basis of liability in Fairchild.
+At para 31 he held that the majority in Fairchild had not proceeded upon the fiction that a defendant who had created a material risk of mesothelioma was deemed to have caused or materially contributed to the contraction of the disease.
+The creation of a material risk of mesothelioma was sufficient for liability.
+At para 35 he advanced the thesis that the basis of liability was the wrongful creation of the risk or chance of causing the disease and that the damage that the defendant should be regarded as having caused was the creation of such risk or chance.
+Liability for the mesothelioma that developed should be apportioned according to the contribution that each defendant made to the risk that mesothelioma would be contracted.
+Lord Scott of Foscote and Lord Walker of Gestingthorpe expressly agreed with both Lord Hoffmanns conclusion that liability for the mesothelioma fell to be apportioned and with his reasons for so concluding.
+Lord Scott held at para 53 that it was essential to keep firmly in mind that liability in Fairchild was not imposed on any of the defendant employers on the ground that the employers breach of contract had caused the mesothelioma.
+That causative link had not been proved against any of them.
+It was imposed because each, by its breach of duty, had materially contributed to the risk that the employee would contract mesothelioma.
+At para 61 he emphasised that the Fairchild principle was not based on the fiction that each defendant had actually caused the eventual outcome.
+It was based on subjecting the victim to a material risk.
+Lord Walker, having stated that he was in full agreement with Lord Hoffmanns reasons went on at para 104 to make a statement that was inconsistent with them, this being to the same effect as the statement relied on by Mr Beloff see para 106 above.
+Lord Walker stated that the decision in Fairchild equated exposing the victim to the risk of injury with causing his injury.
+This was the same mistake as I made in Sienkiewicz see para 117 above.
+Had this been the case, each defendant would have been jointly and severally liable for the injury.
+Lord Walker went on to say, however, that the result in Fairchild was achieved, not by some fiction, but as an explicit variation of the ordinary requirement as to causation.
+At para 113 he stated that Fairchild was decided by the majority, not on the fictional basis that the defendants should be treated as having caused the victims damage, but on the factual basis that they had wrongfully exposed him to the risk of damage.
+Lady Hale did not adopt Lord Hoffmanns thesis that the creation of risk constituted the damage for which each defendant was liable.
+In general, however, she agreed with the majority.
+She held that in Fairchild, for the first time in our legal history defendants were made liable for damage even though they might not have caused it at all.
+It was not said that the defendants had caused or materially contributed to the harm.
+All that could be said was that each had contributed to the risk of harm.
+In these circumstances it was sensible and fair to apportion liability for the harm in proportion to the contribution that each had made to the risk of harm.
+Lord Rodger of Earlsferry vigorously dissented from the reasoning of the majority and from the result in so far as it apportioned liability.
+He observed at para 71 that the majority were not so much reinterpreting as rewriting the key decisions in McGhee and Fairchild.
+At para 85 he stated that the new analysis that the House was adopting would tend to maximise the inconsistencies in the law.
+I have some sympathy with the observations of Lord Rodger.
+It would, I think, have been possible for the House in Barker to have defined the special approach in Fairchild as one that treated contribution to risk as contribution to the causation of damage.
+The important fact is, however, that the majority did not do so.
+They were at pains to emphasise that the special approach was not based on the fiction that the defendants had contributed to causing the mesothelioma.
+Liability for a proportion of the mesothelioma resulted from contribution to the risk that mesothelioma would be caused and reflected the possibility that a defendant might have caused or contributed to the cause of the disease.
+This was no obiter expression of opinion.
+It formed the basis of the substantive decision that liability was severable and not joint.
+The special rule
+The special approach rendered each employer who had wrongfully exposed a mesothelioma victim to asbestos dust liable for a proportion of the mesothelioma without creating any inference or legal fiction that the employer in question had actually contributed to causing the disease.
+Section 3 of the Compensation Act altered the position by imposing joint and several liability on those who were only severally liable under the special approach.
+Did the special rule that resulted involve a different basis of liability to that which formed the basis of the special approach? This question is considered by Jonathan Morgan in his interesting Chapter 4 of Perspectives on Causation headed Causation, Politics and Law: The English and Scottish Asbestos Saga.
+At p 79 he poses the following question: Has Parliament, by implication, therefore also reversed Lord Hoffmanns principled reinterpretation of Fairchild? Is the nature of Fairchild liability now after all for causing mesothelioma and not increasing risk?
+Mr Morgan gives a negative answer to this question, expressing the view that Barker has altered the jurisprudential basis of the Fairchild liability irrevocably.
+I agree that section 3 of the Compensation Act did not alter the jurisprudential basis of the special approach laid down by the House of Lords in Fairchild and Barker.
+All that it did was to alter the effect of the special approach by making each defendant jointly and severally liable for the whole of the injury sustained.
+Section 3(1) provides that the section applies where (c) because of the nature of mesothelioma and the state of medical science, it is not possible to determine with certainty whether it was the exposure [for which the defendant was responsible]or another exposure which caused the victim to become ill, and (d) the responsible person is liable in tort(whether by reason of having materially increased a risk or for any other reason).
+It is not possible to read section 3 as imposing a different basis of liability to that identified by the majority in Barker.
+The consequence of the special rule
+Having regard to its jurisprudential basis I cannot see how the employers can found upon the special rule as identifying the policy year or years in which a victims mesothelioma is initiated.
+The position is that it is impossible to prove on balance of probability when mesothelioma is initiated, or contracted, or sustained, giving each of those words the same meaning.
+The special rule does not fill the gap for it 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.
+Should this Court redefine the special rule in order to engage the EL policies?
+The special approach of the majority in Barker had the object of ensuring that employers who had wrongfully subjected their employees to asbestos dust should bear what the majority considered to be a fair share of responsibility for their wrongdoing.
+It does not seem likely that the majority gave consideration to the implications for the responsibility of EL insurers of the manner in which this object was achieved.
+Should this Court now redefine the special rule with the object of enabling claims to be brought under the EL policies? This would, I think, involve holding that the majority in Barker erred in their analysis and that the true basis of the special approach in Fairchild was that contribution to risk should be deemed to be contribution to causation.
+I would give a firm No to this question.
+The adoption of the special approach in Fairchild has provoked considerable criticism, both judicial and academic.
+An example of the former is to be found in the judgment of Lord Brown in Sienkiewicz.
+An example of the latter is Mr Morgans closely reasoned Chapter 4 of Perspectives on Causation.
+But the object of the special approach in Fairchild and Barker was at least to ensure that those who had breached the duties that they owed to their employees did not escape liability because of scientific uncertainty.
+It would be judicial law making of a different dimension to create a legal fiction as to the policy years in which cases of mesothelioma were initiated in order to render liable insurers who could not otherwise be shown to be liable.
+The Secretary of State has intervened in this appeal and has submitted that, should the claims of employees or their dependants not be met by insurers, they are likely to be a burden on the public purse.
+It is open to question whether this is a proper consideration, even when considering whether the special rule should be redefined for what are essentially reasons of policy.
+In any event it seems to me that the position is somewhat more complex than the Secretary of State suggests.
+The burden of claims in respect of mesothelioma on a scale that was never anticipated is reducing both employers and insurers to insolvency.
+If this Court were to redefine the special rule so as to impose liability for mesothelioma claims on EL insurers where it could not otherwise be made out, this would in many cases be at the expense of others with claims on the same insurers founded on facts and not legal fictions.
+The liabilities in respect of mesothelioma will increase the overall shortfall on the part of insurers and this is also likely to have implications for the public purse.
+So far as I am concerned, however, these considerations have little relevance.
+Even if there were a compelling case for contending that a means should be found to render EL insurers liable, my reaction would be that this was a matter for Parliament not the courts.
+It would be wrong in principle for this Court to depart from the reasoning of the majority in Barker for the sole purpose of imposing liability on EL insurers.
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+On 26 October 2010 this Court issued its judgment in Cadder v HM Advocate [2010] UKSC 43, 2010 SLT 1125.
+It held that the Crowns reliance on admissions made by an accused without legal advice when detained under section 14 of the Criminal Procedure (Scotland) Act 1995 gave rise to a breach of his right to a fair trial, having regard to the decision of the European Court of Human Rights in Salduz v Turkey (2008) 49 EHRR 421.
+This was because the leading and relying on the evidence of the appellants interview by the police was a violation of his rights under article 6(3)(c) read in conjunction with article 6(1) of the European Convention on Human Rights: see Cadder v HM Advocate, para 63.
+The evidence that was in question in Cadder had been obtained when the appellant was being questioned while in detention at a police station.
+The applicant in Salduz too had been taken into custody before he was interrogated during his detention by police officers of the anti terrorism branch of the Izmir Security Directorate.
+But the facts of those cases by no means exhaust the situations in which the prosecution may seek to rely on answers to questions that have been put to the accused by the police.
+The Court now has before it four references by judges of the High Court of Justiciary which have been required by the Lord Advocate under paragraph 33 of Schedule 6 to the Scotland Act 1998.
+Common to them all is the fact that incriminating answers were given to questions put by the police when the accused did not have access to legal advice.
+In three of them the evidence that is objected to was obtained by the police otherwise than by questioning at a police station following detention under section 14 of the 1995 Act.
+They can be grouped together and are the subject of this judgment.
+The fourth is concerned with the question whether the ratio of the decision in Salduz extends to lines of enquiry to which the accuseds answers to questions while in detention have given rise.
+That reference is dealt with in a separate judgment: P v HM Advocate [2011] UKSC 44.
+The issues that the first three references raise are (1) whether the right of access to a lawyer prior to police questioning, which was established by Salduz, applies only to questioning which takes place when the person has been taken into police custody; and (2) if the rule applies at some earlier stage, from what moment does it apply.
+The first reference is of a case which is the subject of an appeal against conviction.
+The second is of a case which is before the Appeal Court in an appeal against a ruling by a sheriff on the admissibility of evidence.
+The third is of case which is the subject of a devolution minute which was referred by the trial judge to the Appeal Court under paragraph 9 of Schedule 6 to the Scotland Act 1998.
+The cases that are the subject of the second and third references that have Page2 not yet gone to trial, so the names of the parties involved have been anonymised.
+In each case the reference has been made by the Appeal Court at the request of the Lord Advocate.
+The first reference
+The appellant in the first case, John Paul Ambrose, was prosecuted on
+summary complaint at Oban Sheriff Court on a charge of contravening section 5(1)(b) of the Road Traffic Act 1988 as being in charge of a motor vehicle whilst having consumed a level of alcohol in excess of the prescribed limit.
+He had been found by two police officers sitting in the passenger seat of a car parked by the roadside.
+A female was sitting in the drivers seat.
+A member of the public had expressed concerns to the police about them because they were thought to be drunk.
+As there was vomit beside the drivers door and the female was seen to be upset, the police officers decided to speak to the appellant.
+Having formed the view that he had been drinking, one of the police officers cautioned the appellant but did not give him any specification about the offence which he was suspected of having committed.
+The appellant made no reply when cautioned.
+He was then asked three questions, to which he gave answers, by the police.
+They were as follows: Q Where are the keys for the vehicle? A In my pocket.
+Q Do you drive the car? A Yes.
+Q Are you going to drive the car? A Ah, well she wisnae well or Aye, well she wisnae well.
+The appellant then removed the car keys from his trouser pocket.
+He was asked whether he had anything to drink in the last 20 minutes and replied that he had not.
+He was then given a roadside breath test which he failed.
+He was taken to Oban police station where he gave a breath/alcohol reading that was well in excess of the prescribed limit.
+The appellant pled not guilty to the complaint.
+He went to trial before a
+Sheriff on 31 May 2010 and 2 July 2010.
+The evidence of the questions and answers was led without objection from his solicitor.
+After the Crown had closed its case the appellants solicitor challenged the admissibility of this evidence on the ground that the police had not informed the appellant of the offence of which he was suspected before he was questioned.
+The sheriff repelled this submission.
+After hearing evidence from the appellant and a defence witness, he found the appellant guilty.
+He was fined 375, was disqualified from driving for two years and had his licence endorsed.
+The appellant then lodged an appeal against his conviction.
+Among the grounds on which he applied for a stated case was the submission that the act of the Lord Advocate in seeking a conviction in reliance on the evidence of the police interview was incompatible with his right to a fair trial under article 6(1).
+Leave to appeal having been refused at the first sift, he appealed to the second sift and then lodged a devolution minute in which it was stated that for the Lord Advocate to support the conviction would be incompatible with his rights under article 6(1) and article 6(3)(c).
+In a note which he lodged on 12 October 2010 in support of the appeal he submitted, with reference to the decision in Salduz, that the use of the evidence of the interview was unfair as he did not have access to legal representation before or during the police interview.
+On 3 November 2010 leave to appeal was granted at the second sift.
+Following a procedural hearing on 26 January 2011 and at the request of the
+Lord Advocate, the Appeal Court referred the following question to this court: Whether the act of the Lord Advocate in leading and relying on evidence obtained in response to police questioning of the appellant conducted under common law caution at the roadside and without the appellant having had access to legal advice was incompatible with the appellants rights under article 6(1) and 6(3)(c) of the European Convention on Human Rights, having regard in particular to the decision of the Supreme Court of the United Kingdom in Cadder v HM Advocate 2010 SLT 1125.
+The second reference
+The accused in the second case, referred to as M, has been indicted in the
+sheriff court on a charge of assault to severe injury, permanent disfigurement and permanent impairment.
+Shortly after the assault took place on 30 August 2008, in the course of initial inquiries, the police took the accuseds details from him but allowed him to leave the locus.
+On 4 September 2008 however he was traced to his home address where, after administering a common law caution to the effect that he was not required to say anything but that anything he did say might be used in Page4 evidence, a police officer asked a total of seven questions, each of which was answered by the accused.
+They were as follows: Q I am investigating a serious assault which happened on Saturday night there, within a bar named [X].
+There was a large disturbance in there too.
+Were you there? A Yes, aye.
+Q Were you involved in the fight? A Aye.
+Q Who were you with? A My dad and just boys fae [Y] where I used to work.
+Q Were they involved too? A I think so, the other boys started it.
+I got punched a couple of times on the eyebrow.
+Its still sair.
+Q OK, what were you wearing? A Pale blue t shirt, jeans, trainers.
+Q OK [M], I will stop there.
+I need to speak to you further except it will be recorded in a taped interview format.
+Can you be at [Z] Police Office tomorrow night at 8 pm? A Yes.
+Q I need to take your t shirt you had on, is that OK? A Aye.
+At this point the police officer concluded his questions because he felt that it had become obvious that the accused had some involvement on the incident and that it was not appropriate to carry out an interview there.
+The accused attended the police office the next day.
+He was then detained and interviewed under section 14 of the 1995 Act, in the course of which he made further admissions.
+The accused was indicted for trial, and after sundry procedure he lodged a minute raising the issue whether the Crown had power to lead evidence of the admissions which he had made.
+When the minute was argued before the sheriff on 9 November 2010 the Crown conceded that the evidence of the admissions made during the section 14 interview was inadmissible.
+But the sheriff ruled that evidence relating to the questions and answers at the accuseds home on 4 September 2008 was admissible.
+The accused appealed against that decision to the High Court of Justiciary, contending that by failing to allow him access to legal advice prior to interview and there being no compelling reasons to justify this, his admissions allegedly obtained under caution had been unfairly obtained and were therefore inadmissible.
+Following a procedural hearing on 26 January 2011 and at the request of the Lord Advocate, the Appeal Court referred the following question to this court: Whether the act of the Lord Advocate in leading and relying on evidence obtained in response to police questioning of the accused, conducted under common law caution at his home address and without the accused having had access to legal advice would be incompatible with the accuseds rights under article 6(1) and 6(3)(c) of the European Convention on Human Rights, having regard in particular to the decision of the Supreme Court of the United Kingdom in Cadder v HM Advocate 2010 SLT 1125.
+The third reference
+The accused in the third case, referred to as G, has been indicted in the High Court of Justiciary with offences including the possession of controlled drugs under the Misuse of Drugs Act 1971 and possession of prohibited firearms and ammunition under the Firearms Act 1968.
+The police had obtained a search warrant under the 1971 Act for the search of a flat where on 4 June 2008, having forced entry, they found the accused.
+Before commencing the search in terms of the warrant the accused, who had been handcuffed following a struggle, was cautioned in these terms: A systematic search will be carried out in your presence.
+I must caution that you are not obliged to say anything or make any comment regarding any article that may be found, but anything you do say will be noted and may be used in evidence.
+The accused was then detained and searched.
+Prior to being searched he admitted to having drugs in his jeans pocket, from which a bag of brown powder was recovered that was later found to be heroin.
+He was then arrested for contravention of section 23(4) of the 1971 Act.
+He was not arrested or charged with any other offence in the course of the search of the premises.
+During the search he was asked questions about the items which were found.
+He was not offered access to legal advice or to a solicitor before being asked these questions.
+After the search was concluded he was removed to a police station where he was detained under section 14 of the 1995 Act and again interviewed by the police in connection with alleged offences involving controlled drugs and firearms.
+He was not allowed access to legal advice before or during this interview.
+The Crown does not seek to rely on answers which the accused gave while he was being interviewed in the police station, but it seeks to rely on the statements and answers which he made at the premises in the course of the search.
+They are set out in a schedule which was completed as the search of the flat was carried out.
+Without that evidence there would not be sufficient evidence to convict the accused.
+The accused has lodged a devolution minute in which he contends that the leading of evidence of the statements and answers which he made at the premises would be incompatible with his Convention right to a fair trial.
+The trial judge decided to refer this issue to the Appeal Court under paragraph 9 of Schedule 6 to the Scotland Act 1998.
+On 18 January 2011 at the request of the Lord Advocate the Appeal Court referred the following question to this court: Is it incompatible with the Panels Convention rights for the Lord Advocate to lead evidence of his statements and answers made during the course of the search conducted under warrant granted in terms of section 23(3) of the Misuse of Drugs Act 1971 as recorded in the Search Production Schedule?
+In each of these three cases the circumstances differ from those that were before the court in Cadder and before the Grand Chamber in Salduz.
+The evidence that is objected to was obtained, in Ambroses case before he was taken to the police station for further procedures to be carried out under section 7 of the Road Traffic Act 1988 following his failure of a road side breath test, and in the cases of M and G before they were detained and questioned at a police station under section 14 of the 1995 Act.
+It is precisely because the issue that the references raise was not the subject of decision in either case that the courts guidance is now sought by the Lord Advocate.
+His position is that three features determine whether an individual has a right to legal advice under article 6 in accordance with the principle in Salduz.
+These features are all taken from words used by the Grand Chambers judgment in that case: see paras 55 and 56.
+First, he must be a suspect.
+Second, he must be in police custody.
+Third, he must be the subject of police interrogation.
+Unless all three features are present, he has no right of access to legal advice under article 6.
+These propositions all assume, of course, that the court finds that article 6(1) was engaged when the incriminating statements were made.
+This is because the protection of articles 6(1) and 6(3)(c) is afforded only to those who have been charged, as that word has been interpreted by the Strasbourg court.
+Each of these expressions will need to be analysed in the discussion that follows.
+Background
+Two very important points need, however, to be made at the outset.
+The first is that the jurisdiction of this court is limited to a consideration of the devolution issue which is raised by each of these references.
+That is plain from the wording of paragraph 33 of Schedule 6 to the Scotland Act 1998 under which the references have been made, but it needs to be emphasised yet again.
+The High Court of Justiciary is the court of last resort in all criminal matters in Scotland: see section 124(2) of the Criminal Procedure (Scotland) Act 1995; McInnes v HM Advocate [2010] UKSC 7, 2010 SLT 266, para 5, Fraser v HM Advocate [2011] UKSC 24, 2011 SLT 515, para 11.
+It is not our function to rule on how the circumstances referred to in each case would fall to be dealt with under domestic law, although this does form part of the background.
+The second point is that a decision by this court that there is a rule that a person who is suspected of an offence but is not yet in custody has a right of access to a lawyer before being questioned by the police unless there are compelling reasons to restrict that right would have far reaching consequences.
+There is no such rule in domestic law: see para 22, below.
+If that is what Strasbourg requires, then it would be difficult for us to avoid holding that to deny such a person access to a lawyer would be a breach of his rights under articles 6(1) and 6(3)(c) of the Convention.
+But the consequences of such a ruling would be profound, as the answers to police questioning in such circumstances would always have to be held in the absence of compelling reasons for restricting access to a lawyer to be inadmissible.
+The effect of section 57(2) of the Scotland Act 1998 would be that the Lord Advocate would have no power to lead that evidence.
+I agree with Lord Matthew Clarke that this would have serious implications for the investigation of crime by the authorities: see para 116, below.
+This suggests that a judgment pointing unequivocally to that conclusion would be required to justify taking that step.
+If Strasbourg has not yet spoken clearly enough on this issue, the wiser course must surely be to wait until it has done so.
+Section 126(1) of the Scotland Act 1998 provides that the Convention rights has the same meaning as in the Human Rights Act 1998.
+Section 2(1) of the Human Rights Act requires this court in determining any question which has arisen in connection with a Convention right to take into account any relevant Strasbourg case law.
+In R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, para 26 Lord Slynn of Hadley said that, although the Human Rights Act did not provide that a national court is bound by these decisions, it is obliged to take account of them so far as they are relevant: In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights.
+If it does not do so there is at least a possibility that the case will go to that court, which is likely in the ordinary case to follow its own constant jurisprudence.
+In R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, para 20 Lord Bingham of Cornhill said that Lord Slynns observations in that case reflected the fact that the Convention is an international instrument, the correct interpretation of which can be expounded only by the Strasbourg court.
+From that it followed that a national court should not without strong reason dilute or weaken the effect of the Strasbourg case law.
+It was its duty to keep pace with it as it evolved over time.
+There is, on the other hand, no obligation on the national court to do more than that.
+As Lord Bingham observed, it is open to member states to provide for rights more generous than those guaranteed by the Convention.
+But such provision should not be the product of interpretation of the Convention by national courts.
+Lord Kerr says that it would be wrong to shelter behind the fact that Strasbourg has not so far spoken and use that as a pretext for refusing to give effect to a right if the right in question is otherwise undeniable: para 130, below.
+For reasons that I shall explain later, I do not think that it is undeniable that Strasbourg would hold that any questions put to a person by the police from the moment he becomes a suspect constitute interrogation which cannot lawfully be carried out unless he has access to a lawyer, which is the principle that Lord Kerr derives from his consideration of the mainstream jurisprudence: see para 146, below.
+But his suggestion that there is something wrong with what he calls an Ullah type reticence raises an important issue of principle.
+It is worth recalling that Lord Binghams observations in Ullah were not his first pronouncements on the approach which he believed should be taken to the Convention.
+In Brown v Stott 2001 SC (PC) 43, 59 he said: In interpreting the Convention, as any other treaty, it is generally to be assumed that the parties have included the terms which they wished to include and on which they were able to agree, omitting other terms which they did not wish to include or on which they were not able to agree.
+Thus particular regard must be had and reliance placed on the express terms of the Convention, which define the rights and freedoms which the contracting parties have undertaken to secure.
+This does not mean that nothing can be implied into the Convention.
+The language of the Convention is for the most part so general that some implication of terms is necessary, and the case law of the European Court shows that the court has been willing to imply terms into the Convention when it was judged necessary or plainly right to do so.
+But the process of implication is one to be carried out with caution, if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept.
+As an important constitutional instrument the Convention is to be seen as a living tree capable of growth and expansion within its natural limits (Edwards v Attorney General for Canada ([1930] AC 124) at p 136 per Lord Sankey LC), but those limits will often call for very careful consideration.
+The consistency between this passage and what he said in Ullah shows that Lord Bingham saw this as fundamental to a proper understanding of the extent of the jurisdiction given to the domestic courts by Parliament.
+Lord Kerr doubts whether Lord Bingham intended that his discussion of the issue should have the effect of acting as an inhibitor on courts of this country giving full effect to Convention rights unless they had been pronounced upon by Strasbourg: para 128, below.
+I, for my part, would hesitate to attribute to him an approach to the issue which he did not himself ever express and which, moreover, would be at variance with what he himself actually said.
+Lord Binghams point, with which I respectfully agree, was that Parliament never intended to give the courts of this country the power to give a more generous scope to those rights than that which was to be found in the jurisprudence of the Strasbourg court.
+To do so would have the effect of changing them from Convention rights, based on the treaty obligation, into free standing rights of the courts own creation.
+That is why, the courts task in this case, as I see it, is to identify as best it can where the jurisprudence of the Strasbourg court clearly shows that it stands on this issue.
+It is not for this court to expand the scope of the Convention right further than the jurisprudence of the Strasbourg court justifies.
+The background in domestic law
+The powers of the police to detain a person and to subject him to questioning depend on the category into which the person falls at the time these powers are being exercised.
+They differ according to whether the person is a witness, a suspect or an accused.
+Where a person is not under suspicion, the police have no power to take him into custody or to compel him to submit to police questioning.
+Such a person is classified, at most, as a witness.
+A person who is in that category can be asked to provide personal information, such as his name and address.
+Further questions may be put as part of a routine investigation into the events that have happened.
+So long as he is being questioned as a potential witness rather than as a suspect, the right to protection against self incrimination is not in play.
+There is no obligation to advise him of his rights, such as the right to silence or his right to seek legal advice.
+As Lord Justice Clerk Thomson said in Chalmers v HM Advocate 1954 JC 66, 81, a person ultimately accused may be interviewed as part of the ordinary routine investigation of the police into the circumstances of the crime.
+It would unduly hamper the investigation of crime if the threat of inadmissibility were to tie the hands of the police in asking questions at this stage.
+The position changes if the stage is reached when suspicion begins to fall on the person who is being questioned.
+Once suspicion has begun to fall on him the need to protect him against self incrimination comes into play.
+As Lord Justice General Cooper explained in Chalmers v HM Advocate 1954 JC 66, 78: The theory of our law is that at the stage of initial investigation the police may question anyone with a view to acquiring information which may lead to the detection of the criminal; but that, when the stage has been reached at which suspicion, or more than suspicion, has in their view centred upon some person as the likely perpetrator of the crime, further interrogation of that person becomes very dangerous, and, if carried too far, eg to the point of extracting a confession by what amounts to cross examination, the evidence of that confession will almost certainly be excluded.
+It was for a time thought that this passage was to be taken to establish that answers by suspects to police questioning were inadmissible by virtue of the persons position as a person under serious consideration as the perpetrator of the crime.
+But, as the law has developed, the position is less easy to define: see Renton and Brown, Criminal Procedure, 6th ed looseleaf (1996), para 24 38.
+In Miln v Cullen 1967 JC 21 it was held that the incriminating answers which the driver of a car gave when questioned by police officers who had formed the opinion that he was under the influence of drink were admissible in evidence.
+Lord Justice Clerk Grant said at p 25 that the constable, in asking the simple question whether he was the driver, was not merely acting reasonably, properly and fairly but was acting in accordance with the duties incumbent upon him.
+Lord Wheatley said at pp 30 31 that it was difficult to define with exactitude when a person becomes a suspect in the eyes of a police officer, as it may vary from a very slight suspicion to a clearly informed one, and that what happened after that had to be judged by the test of fairness.
+In Lord Advocates Reference (No 1 of 1983) 1984 JC 52, 58 Lord Justice General Emslie said that Lord Wheatleys statement in Miln v Cullen, at p 31 that in each case the issue is whether the question was in the circumstances a fair one was a sound statement of the law: A suspects self incriminating answers to police questioning will indeed be admissible in evidence unless it can be affirmed that they have been extracted from him by unfair means.
+The simple and intelligible test which has worked well in practice is whether what has taken place has been fair or not? (see the opinion of the Lord Justice General (Clyde) in Brown v HM Advocate 1966 SLT 105 at 107).
+In each case where the admissibility of answers by a suspect to police questioning becomes an issue it will be necessary to consider the whole relevant circumstances in order to discover whether or not there has been unfairness on the part of the police resulting in the extraction from the suspect of the answers in question.
+He went on to say that, where the words interrogation and cross examination were used in the decided cases in discussing unfair tactics on the part of the police, they were to be understood to refer only to improper forms of questioning tainted with an element of bullying or pressure designed to break the will of the suspect or to force from him a confession against his will.
+The current position as described in Renton and Brown, para 24 39 is therefore that the fact that the accused was at the time under suspicion or even under arrest is not in itself crucial.
+It is merely a circumstance like any other to be taken into account in assessing the fairness of the police questioning.
+The legal basis for detaining and questioning a suspect was clarified by section 2 of the Criminal Justice (Scotland) Act 1980 which was consolidated as section 14 of the Criminal Procedure (Scotland) Act 1995.
+The background to the legislation was described with characteristic skill and attention to detail by Lord Rodger in Cadder, para 74 86.
+As he explained in para 86, one aim was to put an end to the doubts about the legal basis for holding suspects for questioning when they had not been arrested.
+Another was to clarify the law as to the power of the police to question suspects and as to the admissibility of any answers that the suspects gave to such questions.
+A person may be detained for the purpose of carrying out investigations where a constable has reasonable grounds for suspecting that he has committed or is committing an offence punishable by imprisonment: section 14(1).
+Where a person has been detained under section 14(1) a constable may, without prejudice to any relevant rule of law as regards the admissibility in evidence of any answer given, put questions to him in relation to the suspected offence: section 14(7).
+The effect of the decision in Cadder is that the Lord Advocate has no power to lead and rely on answers by a detainee who was subjected to questioning by the police while he was without access to legal advice.
+In none of the situations described in each of the references was the person who was being questioned a detainee under section 14 of the 1995 Act.
+The domestic law test for the admissibility of the answers that were given to the questions put by the police is whether or not there was unfairness on the part of the police.
+The fact that the person did not have access to legal advice when being questioned is a circumstance to which the court may have regard in applying the test of fairness, but it is no more than that.
+There is no rule in domestic law that says that police questioning of a person without access to legal advice who is suspected of an offence but is not in custody must always be regarded as unfair.
+The question is whether a rule to that effect is to be found, with a sufficient degree of clarity, in the jurisprudence of the Strasbourg court.
+The reasoning in Salduz
+The starting point for an examination of this question must be the reasoning of the Grand Chamber in Salduz.
+Some of the propositions that are set out in its judgment are expressed in a way that might suggest that the right of access to a lawyer is not confined to persons who are subjected to police questioning while they are in custody.
+Para 55 of the judgment is in these terms: Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently practical and effective article 6(1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right.
+Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction whatever its justification must not unduly prejudice the rights of the accused under article 6.
+The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.
+Read on its own, and without taking full account of the context in which these sentences were written, that paragraph suggests that the features which determine whether access to legal advice is to be provided are (a) that the person is a suspect, and (b) that he is subject to police interrogation.
+No mention is made in this paragraph of his being in police custody.
+The fact is, however, that the applicant was in police custody when he was interrogated by the police.
+The narrative of the facts in paras 12 14 shows that it was not until after he had been taken into custody by police officers from the Anti Terrorism Branch of the Izmir Security Directorate that he was interrogated.
+That being so, it is necessary to look elsewhere in the judgment to see whether the court was contemplating anything other than an interrogation in police custody when it came to set out what it did in para 55 of the judgment.
+In Part II A of the judgment, under the heading Domestic law, the court referred to legislation in force at the time of the application which provided that anyone suspected or accused of a criminal offence had a right of access to a lawyer from the moment they were taken into police custody.
+The reason why this had not been provided to the applicant was that the legislation did not apply to persons accused of offences falling within the jurisdiction of the state security courts, which his offence did.
+The challenge, therefore, was to a systematic departure from the right of access to a lawyer which the law gave to everyone else.
+In its examination of recent amendments in paras 29 31 of the judgment too its focus was on provisions that deal with juveniles taken into police custody.
+That continued to be its focus in its examination of the relevant international law materials in Part IIB.
+Chapter 1 of that Part refers to materials from the Council of Europe and the United Nations dealing with procedure in juvenile cases where the child had been deprived of his liberty by means of pre trial detention.
+The heading of Chapter 2 is Right of access to a lawyer during police custody.
+Reference is made in para 37 of the judgment to rule 93 of the Standard Minimum Rules for the Treatment of Prisoners adopted by the Council of Europe Ministers, which states that an untried prisoner shall be entitled as soon as he is imprisoned to choose his legal representatives and to receive visits from his legal adviser, and, in para 38, to a recommendation of the Committee of Ministers to Member States of the Council of Europe dealing with the right of prisoners to legal advice.
+There is no sign here or in its examination of the United Nations materials in paras 41 42 that the Grand Chamber was interested in the position of suspects who were questioned by the police when not in custody.
+Nor is there any sign of an international consensus that there is a right of access to a lawyer at that stage.
+The part of the judgment which deals with the alleged violation of article 6 of the Convention begins at para 45.
+The first section, which is headed Access to a lawyer during police custody, continues to para 63.
+It includes para 55, which I have already quoted: see para 26, above.
+In para 45 it is stated that the applicants allegation was that his defence rights had been violated as he had been denied access to a lawyer during his police custody.
+The parties submissions, as narrated in paras 47 49 were directed to this issue.
+There then follows a discussion of the general principles which were applicable to the case: paras 50 55.
+In this passage, to which I will return, the court does not, at least in so many words, limit its scrutiny of the principles to what they require in cases where the person concerned is in police custody.
+But in the next section, where it applies the principles to the case of applicant, the fact that he was in police custody lies at the heart of the discussion; paras 56 62.
+The holding in para 80 states that there had been a violation of the applicants rights under article 6(1) in conjunction with article 6(3)(c) on account of the lack of legal assistance while he was in police custody.
+But for the discussion of the relevant principles in paras 50 55, which is not so limited, there would be no doubt at all that the Grand Chambers declaration in the last sentence of para 55 that the rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction was directed to the situation where that interrogation took place while the person was in police custody.
+That is the conclusion that one would naturally draw from the context.
+The concurring opinions of Judge Bratza and Judge Zagrebelsky lend further support to this conclusion.
+Judge Bratza said in para O I2 that, like Judge Zagrebelsky, he thought that the court should have used the opportunity to state in clear terms that the fairness of criminal proceedings under article 6 required that, as a rule, a suspect should be granted legal advice from the moment he is taken into police custody or pre trial detention.
+No mention is made in either of these opinions of any rule to the effect that the suspect should be granted legal advice at any earlier stage.
+It may be, as Lord Rodger suggested in Cadder, para 70, that what these judges were contemplating was legal assistance for other purposes such as support for an accused who was distressed or to check on the conditions of detention.
+Whatever the reason, they were plainly not addressing their remarks to situations such as those described in the references where the questioning took place before the suspect was taken into police custody.
+The discussion of the general principles in paras 50 55 is not limited in this way.
+As para 50 makes clear, the fact that the applicants case was concerned with pre trial proceedings did not mean that article 6 had no application.
+The point is made that the fairness of a trial may be seriously prejudiced by an initial failure to comply with its provisions.
+In para 51 reference is made to the right of everyone charged with a criminal offence to be effectively defended by a lawyer, the choice of means of ensuring this being left to the contracting states.
+The paragraph ends with a warning that assigning counsel does not in itself ensure the effectiveness of the assistance he may afford an accused.
+So far there is nothing to suggest that the Grand Chamber was searching for a basis for a ruling that the right of access to a lawyer arose at a stage before the suspect was taken into police custody.
+In para 52 reference is made for the first time to the attitude of the accused at the initial stages of police interrogation and to the fact that article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer at this stage.
+No mention is made of where he was assumed to be when he is being questioned, but the cases referred to in the footnote to this paragraph are all cases where the applicant was in custody when he was subjected to interrogation by the police: Murray v United Kingdom (1996) 22 EHRR 29, Brennan v United Kingdom (2001) 34 EHRR 507 and Magee v United Kingdom (2000) 31 EHRR 822.
+In para 53 it is stated that the principles outlined in the previous paragraph are also in line with the generally accepted international human rights standards which, as the footnote to this paragraph indicates, are those set out in Part B of the judgment: see para 28, above.
+These are said to be at the core of the concept of a fair trial.
+Their rationale relates in particular to the protection of an accused against abusive coercion on the part of the authorities.
+The language used and the international materials referred to suggest that what the Grand Chamber had in mind here was the need for protection of the accused against abusive coercion while he was in custody.
+In para 54 it underlined the importance of the investigation stage for the preparation of criminal proceedings and referred to the fact that the accused often finds himself in a particularly vulnerable position at that stage of the proceedings and to the fact that early access to a lawyer was part of the procedural safeguards to which the court will have particular regard.
+The stage in the proceedings that the court had in mind is not specified other than by reference to the accuseds vulnerability.
+This is said to be amplified by the fact that legislation in criminal procedure tends to become increasingly complex.
+It seems that what the Grand Chamber had in mind here was a stage when the accused was being subjected to detailed questioning of the kind that, under the inquisitorial systems, will invariably take place after the accused has been taken into custody.
+This impression is reinforced by the reference in the third last sentence of the paragraph to the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment about the right of a detainee to have access to legal advice as a fundamental safeguard against ill treatment to which, I would infer, it was thought a detainee might be vulnerable.
+This analysis of the reasoning of the Grand Chamber in Salduz suggests that the judgment was concerned only with establishing a rule that there was a right of access to a lawyer where the person being interrogated was in police custody.
+The alternative view is that in para 55 it recognised a broader principle that the rule applies as soon as the person has been charged so that article 6 is engaged.
+This alternative has a certain logical appeal for the reasons that Lord Kerr has identified.
+The prejudice suffered by the accused is the same irrespective of the stage at which an incriminating statement is made in answer to questions put by the police.
+But the base on which this proposition rests is not that the Convention prohibits absolutely any reliance on incriminating statements.
+The privilege against self incrimination is not an absolute right: Murray v United Kingdom (1996) 22 EHRR 29, para 47.
+It is primarily concerned with respecting the will of the person to remain silent: Saunders v United Kingdom (1996) 23 EHRR 313, para 68.
+Everyone is entitled to respect for the right not to incriminate himself, irrespective of whether or not he is in police custody.
+Nevertheless a person can confess if he is willing to do so, and his confession will be admissible if it is truly voluntary.
+The underlying principle therefore is that there is a right against self incrimination which in some circumstances must be protected by special measures to protect the person against the risk that a confession may be obtained from him against his will by unfair tactics by the police.
+That is why the court recognised in its application of those principles to Salduzs case, as it had already done in para 54, that an interview which takes place in police custody has particular features which require the provision of an especially strong protection to protect the rights of the defence against a forced confession.
+It is that aspect of Salduzs case which seems to have informed the whole of the courts judgment.
+It seems to me that the Grand Chambers judgment, when taken as a whole, does not indicate with a sufficient degree of clarity or indeed, I would suggest, in any way at all that the ruling in para 55 about incriminating statements made without access to a lawyer applies to questions put by the police before the accused is taken into custody.
+The context would have required this to be stated expressly if it was what was intended, as the rule which the judgment laid down can be departed from only where there are compelling reasons to justify its restriction.
+It would have had to have been stated precisely to what situations outside police custody the rule was to apply, and it was not.
+The jurisprudence since Salduz
+The Grand Chambers judgment has, not surprisingly, been referred to many times by the Strasbourg court since the judgment in that case was delivered.
+The question is whether there is an indication in any of the cases that the right of access to a lawyer arises, as a rule, as soon as a person whose rights under article 6 are engaged is subject to questioning by the police.
+There are passages in some of the cases which indicate that Salduz is regarded as having been concerned only with the need for legal advice while the person was in custody.
+In Dayanan v Turkey (application no 7377/03) (unreported) given on 13 October 2009, which is a decision of the Second Section and is available only in French, the applicant was arrested and detained as part of an operation against the Hizbullah.
+He was informed of his right to silence and exercised it, as he refused to answer the questions put to him by the police.
+It was held nevertheless that there had been a breach of article 6(3)(c) in conjunction with article 6(1) because he did not have access to a lawyer while he was being interrogated.
+The court said: 31.
+Elle estime que lquit dune procdure pnale requiert dune manire gnrale, aux fins de larticle 6 de la Convention, que le suspect jouisse de la possibilit de se faire assister par un avocat ds le moment de son placement en garde vue ou en dtention provisoire. 32.
+Comme le souligne les normes internationales gnralement reconnues, que la Cour accepte et qui encadrent sa jurisprudence, un accus doit, ds quil est priv de libert, pouvoir bnficier de lassistance dun avocat et cela indpendamment des interrogatoires quil subit (pour les textes de droit international pertinents en la matire, voir Salduz, prcit, paras 37 44) The proposition in para 32 that an accused must have access to a lawyer from the moment he is deprived of his liberty (un accus doit, ds quil est priv de libert, pouvoir bnficier de lassistance dun avocat) seems to go further than what the Grand Chamber itself said in Salduz.
+It is more in keeping with the concurring opinions of Judge Bratza and Judge Zagrebelesky.
+However that may be, the passages which I have quoted indicate the importance that appears to have been attached by Strasbourg to the fact that the person was in police custody when he was being interrogated.
+It is especially significant that this is what the court saw the international consensus (les normes internationales gnralement reconnues) to be on this issue.
+Three other cases from Turkey are to the same effect.
+In Arzu v Turkey (application no 1915/03) (unreported) given on 15 September 2009 the applicant, who was arrested and placed in custody, complained that he had been denied access to a lawyer during the initial stages of the criminal proceedings against him.
+The court said that Salduz had considered the grievance of a lack of access to a lawyer whilst in police custody: para 46.
+In Duman v Turkey (application no 28439/03) (unreported) given on 23 March 2010 the court said in para 46 that the use of statements obtained at the stage of the police inquiry and the judicial investigation is not inconsistent with article 6(1), provided that the rights of the defence are respected.
+On that point the court said that it relied on the basic principles laid down in its judgments, including Salduz, para 55, concerning the notion of a fair procedure.
+In Takin v Turkey (application no 5289/06) (unreported) given on 1 February 2011 the applicant complained that he had had no legal assistance before he made his police statement or during his interrogation before the public prosecutor while in custody.
+The court observed that it had already examined the issue concerning the lack of legal assistance in police custody in Salduz, paras 56 62.
+In all these cases, as in Salduz itself, there was a systemic restriction on access to legal advice by anyone held in police custody in connection with proceedings that were to be taken in the state security courts.
+In Pishchalnikov v Russia (application no 7025/04) (unreported) given on 24 September 2009 the applicant, who had been arrested, was interrogated while he was in police custody.
+The pattern of the First Sections judgment followed that of the Grand Chamber in Salduz.
+It repeated many of the propositions in paras 50 55 of Salduz in its assessment of the case under the heading Restrictions on access to a lawyer in the police custody, and referred in para 71 to the fact that the right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of a fair procedure under article 6.
+But, as it was a custody case, it does not examine the question whether these propositions require access to a lawyer at any earlier stage.
+In Sharkunov and Mezentsev v Russia (application no 75330/01) (unreported) given on 10 June 2010 the question before the court was again directed to the lack of legal assistance while in police custody and the use at the trial of incriminating statements that had been made at that stage.
+In para 97 the court repeated the proposition that was first stated in Salduz, para 55 that the rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.
+But once again the police interrogation in the course of which these statements were made took place while the applicant was in police custody.
+In Borotyuk v Ukraine (application no 33579/04) (unreported) given on 16 December 2010 the applicant was, once again, in police custody during the pre trial investigation.
+Here too the propositions on which the court based its judgment are closely modelled on what the Grand Chamber said in para 55 of Salduz.
+In para 79 it summarised the general principles that are to be found there.
+It stated that, as a rule, access to a lawyer must be provided as from the first questioning of a suspect by the police, unless it can be demonstrated in the light of the particular circumstances that there are compelling reasons to restrict that right.
+As in para 55 of Salduz, no indication is given that the principles are restricted to cases where the accused was in police custody.
+But, as in Salduz, that was the background against which the case was heard.
+Once again it is unclear whether the general propositions on which the judgment was based must equally be applied, as a rule, to cases where the accused was not in custody when the questioning took place.
+Zaichenko v Russia
+The First Section had the opportunity to clarify where the court stood on this issue in Zaichenko v Russia (application no 39660/02) (unreported) given on 18 February 2010.
+This appears to have been the only case to date in which the complaint was of lack of legal assistance during questioning by the police when the applicant was not in custody.
+He was stopped while he was driving home from work and his car was inspected by the police as there had been reports of workers stealing diesel from their service vehicles.
+Two cans of diesel were discovered in the car.
+The applicant made self incriminating statements in reply to questions put to him by the police at the roadside.
+He was charged with stealing the cans, and he was convicted.
+His complaint was that he had not been advised of the privilege against self incrimination when he made his admission to the police.
+His position at the trial was that he had purchased the diesel at a petrol station and that he did not give this explanation to the police because he felt intimidated and did not have a receipt to prove the purchase.
+In its assessment the court set out the general principles that are relevant to a consideration of whether there has been a violation of the right to a fair trial.
+It noted that article 6(3)(c) especially might be relevant before a case is sent to trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by a initial failure to comply with its requirements.
+In para 36 it recalled, as the Grand Chamber did in Salduz, the proposition that the court set out in Imbrioscia v Switzerland (1993) 17 EHRR 441, para 38 that the manner in which articles 6(1) and 6(3)(c) were to be applied during the preliminary investigation depended on the special features of the proceedings and on the circumstances of the case.
+Account was taken in para 37 of the principles set out in Salduz, para 55 and in para 38 of the fact that the right to silence and the right not to incriminate oneself are generally recognised standards which lie at the heart of the notion of a fair procedure.
+Para 38 then contains these important propositions which did not receive the same attention in Salduz: The right not to incriminate oneself presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see, inter alia, J B v Switzerland, no 31827/96, para 64, ECHR 2001 III).
+In this sense the right is closely linked to the presumption of innocence contained in article 6(2) of the Convention.
+In examining whether a procedure has extinguished the very essence of the privilege against self incrimination, the Court must examine the nature and degree of the compulsion, the existence of any relevant safeguards in the procedures and the use to which any material so obtained is put (ibid).
+Applying these propositions to the applicants case, the court noted in para 42 that in criminal matters article 6 comes into play as soon as a person is charged and that this may occur on a date prior to the case coming before the trial court, such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when the preliminary investigations were opened.
+Eckle v Germany (1982) 5 EHRR 1, para 73 was referred to, which includes the proposition taken from cases such as Deweer v Belgium (1980) 2 EHRR 439, para 46 that the test as to whether a person has been charged for the purposes of article 6(1) is whether the situation of the person has been substantially affected.
+The court concluded that, given the context of the road check and the applicants inability to produce any proof of the diesel purchase at the moment of his questioning by the police, there was a suspicion of theft against him from that moment and that, although he was not yet accused of any criminal offence, his situation in the proceedings at the roadside was substantially affected.
+So article 6(1) was engaged at that point.
+But the fact that article 6(1) was engaged did not mean that a right of access to a lawyer arose at that point.
+The court observed in para 47 that the case was different from previous cases concerning the right to legal assistance in pre trial proceedings.
+This was because the applicant was not formally arrested or in police custody but was stopped for a roadside check which was carried out in the presence of two attesting witnesses.
+In para 48 it said: Although the applicant in the present case was not free to leave, the Court considers that the circumstances of the case as presented by the parties, and established by the Court, disclose no significant curtailment of the applicants freedom of action, which could be sufficient for activating a requirement for legal assistance already at this stage of the proceedings.
+In para 49 it noted that the role of the police in such a situation was to draw up an inspection record and receive the applicants explanation as to the origin of the cans in his car.
+Having done so, the police transferred the documents to the inquirer who submitted a report to his superior which prompted him to open a criminal case against the applicant.
+In para 51 it held that the absence of legal representation at the roadside check did not violate his right to legal assistance under article 6(3)(c).
+In a partly dissenting opinion Judge Spielmann said that the interview took place in circumstances that could in no way be compared to those normally observed during routine road checks and he could not agree that the circumstances of the case disclosed no significant curtailment of the applicants freedom of action such as to require legal assistance.
+He did not take issue with the principle formulated in para 48.
+His dissent was as to its application to the facts of the case.
+Mr Scott for Ambrose submitted that it was wrong to look at the courts reasoning in Salduz through what it decided in Zaichenko.
+Mr Shead for M submitted that Zaichenko was so out of line with the other cases, and so hard to reconcile with the basic principles that were stated in Salduz, that it should be regarded as having been wrongly decided.
+I would reject these arguments.
+The President of the Court, Judge Rozakis, was a member of the Grand Chamber in Salduz, as was Judge Spielmann.
+The importance of the question that the case raised, which was whether the ruling in Salduz applied to questioning where the applicant was not in police custody, would not have been overlooked.
+The reasoning shows that the reasoning in Salduz was fully taken into account.
+The finding in para 48 that the circumstances did not disclose a sufficient curtailment of the applicants freedom of action which could be sufficient for activating a requirement for legal assistance indicates that the court was well aware that it had to give reasons for reaching a different result.
+That it did so in the way that it did shows that this is a judgment which must be taken into account in the search for an answer to the question where the jurisprudence of the Strasbourg court stands on the question we have to decide.
+Abdurahman v United Kingdom
+The question whether the right of access to a lawyer applies at a stage before the person is taken into custody is now before the Strasbourg court in an application by Ismail Abdurahman, application no 40351/09.
+He was questioned by the police as a witness in connection with the attempt to detonate four bombs at separate points in the London public transport system two weeks after the bombings that took place on 7 July 2005.
+He had been approached by two police officers who took him to a police station.
+According to their evidence at the voir dire at the applicants trial, this was with a view to his assisting the police as a potential witness.
+They began interviewing him, but after about 45 minutes of questioning they considered that, as a result of the answers that he was giving, he was in danger of incriminating himself and should be cautioned.
+On instructions from a senior officer they continued nevertheless to interview him as if he were a witness.
+It was not until after he had completed and signed his witness statement, which contained statements that were incriminating and was made without access to legal assistance, that they were told to arrest him and he was then taken into custody.
+This case is still awaiting a hearing in Strasbourg.
+It has reached the stage of the court posing questions to the parties, which are whether there has been a violation of article 6(1) together with article 6(3)(c) arising from (a) the failure to caution the applicant before he gave his witness statement (Aleksandr Zaichenko v Russia, no 39660/02, 18 February 2010); and/or (b) the failure to provide him with legal assistance before he gave the witness statement? In particular, were the rights of the defence irretrievably prejudiced by the use of the witness statement at trial (Salduz v Turkey [GC], no 36391/02, para 55, 27 November 2008)? It is, of course, too early to say what view will be taken of this case when the facts have been assessed by the court in the light of the relevant principles.
+But it is at least likely that its judgment will provide some useful guidance as to the approach that is to be taken to a persons rights under article 6(1) together with article 6(3)(c) where the prosecution seeks to rely on answers given to questions by the police before he is formally taken into custody.
+The key issue, so far as the references that are before the court in this case are concerned, is whether, as a rule, access to a lawyer must always be provided when a person is questioned at any stage in the proceedings after he has become a suspect and must be taken to have been charged for the purposes of article 6 (see paras 62 63, below), or whether access to a lawyer is required, as a rule, only where the person has been taken into custody or his freedom of action has been significantly curtailed.
+The fact that this application is still pending suggests that, if there was any doubt as to where the jurisprudence of the Strasbourg court stands, it would have been wise to wait for its judgment in Abdurahman before holding that there is a rule that access must be provided in any situation that is not analogous on its facts to that which was before the court in Salduz.
+But that is for another day, as the delivery of the judgment in that case cannot be taken to be imminent.
+Miranda v Arizona
+The Lord Advocate placed considerable weight in support of his argument on the judgment of the Supreme Court of the United States in Miranda v Arizona 384 US 436 (1966).
+In that case the Supreme Court held that the prosecution may not use statements, whether incriminatory or exculpatory, stemming from custodial interrogation of a defendant unless it demonstrated the use of procedural safeguards which were sufficient to secure the privilege against self incrimination.
+These safeguards require that, unless other fully effective means are devised to inform the accused person of the right to silence and to assure continuous opportunity to exercise it, he must be warned that he has a right to remain silent, that any statement that he does make may be used as evidence against him, that he has the right to consult with an attorney and that, if he cannot afford one, a lawyer will be appointed to represent him.
+Custodial interrogation for the purposes of this rule means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way: p 444.
+Miranda has been referred to in a number of individual opinions given by judges of the Strasbourg court.
+Judge De Meyer referred to it in his dissenting opinion in Imbrioscia v Switzerland (1993) 17 EHRR 441.
+The applicant in Imbrioscia had been questioned several times without access to a lawyer while he was in police custody but the court held, considering the proceedings as a whole, that there had been no breach of article 6(1) read with article 6(3)(c).
+Judge De Meyer said that the court had failed to recognise the rules governing the right to legal advice during custodial interrogation which the Supreme Court has summarised in its Miranda judgment and which he said belonged to the very essence of fair trial.
+In Murray v United Kingdom (1996) 22 EHRR 29 the applicant had been denied legal advice for 48 hours after he had been taken into custody.
+The court held that there had been a violation of article 6(1) read with article 6(3)(c).
+The partly dissenting judges, Judge Pettiti, joined by Judge Valticos, and Judge Walsh, joined by Judges Makarczyk and Lhmus, also referred to the Miranda judgment in this context.
+Judge Walsh pointed out that the Supreme Court had affirmed that the constitutional protection against self incrimination contained in the Fifth Amendment guarantees to the individual the right to remain silent unless he chooses to speak in the unfettered exercise of his own free will whether during custodial interrogation or in court.
+Much more recently, but prior to the Grand Chambers decision in Salduz, Judge Fura Sandstrm joined by Judge Zupani referred to Miranda in Galstyan v Armenia (2007) 50 EHRR 618 when, in para 0 I5, she described the right to be assisted by a lawyer as a bright line rule which nobody should cross and said that its purpose was to neutralise the distinct psychological disadvantage that suspects are under while dealing with the police.
+The Strasbourg court has not referred to Miranda in any of its judgments, and Imbrioscia, Murray and Galstyan are the only cases where it has been referred to in a dissenting opinion in the context of what is described in Miranda as custodial interrogation.
+But it can be assumed that the court will not have overlooked it in its search for generally accepted international human rights standards.
+The dissenting judgments in Imbrioscia and Murray which drew attention to it were given before the Grand Chamber considered the issue in Salduz, and those cases were cited to it in that case.
+As T A H M van der Laar and R L de Graaf, Salduz and Miranda: is the US Supreme Court pointing the way? [2011] 3 EHRLR 304, 315 have pointed out, the test that the Strasbourg court described in paras 47 and 48 of Zaichenko when it considered that the applicant was neither formally arrested nor interrogated in police custody and that there was no significant curtailment of his freedom of action echoes the statement in Miranda, p 477 that the rule of access to a lawyer that it describes applies when the suspect is subjected to police interrogation while in custody or otherwise deprived of his freedom of action in any significant way.
+It is not unreasonable to think that Miranda and subsequent cases that the ruling in that case have given rise to in the United States will influence the thinking of the Strasbourg court as it develops the principles described in Salduz.
+The significance of Miranda is that it follows the custodial approach to the question as to when access to a lawyer is required.
+The core of that decision, as der Laar and de Graaf have described it in [2011] EHRLR 304, 310, is that a suspects statement made as a result of interrogation initiated by the interrogating authorities while he is in custody cannot be used in evidence unless the prosecutor can prove that the procedural safeguards that were used were effective enough to secure the suspects right not to incriminate himself.
+The underlying reason is that the circumstances in which such an interrogation takes place are inherently intimidating.
+As Chief Justice Warren explained at p 445, an understanding of the nature and setting of the in custody interrogation was essential to the courts decision: incommunicado interrogation in a police dominated atmosphere.
+But it was noted that an interpretation of the requirement that the right to legal advice arose at an earlier stage would hamper the traditional function of the police in investigating crime.
+General on the scene questioning as to facts surrounding the crime or other general questioning of citizens was not affected.
+The right to legal advice was held not to extend that far because the compelling atmosphere inherent in the process of in custody interrogation was not necessarily present: Miranda, pp 477 478.
+The accused in that position is protected by the rule that only statements voluntarily made are admissible.
+I think that there is an indication here about the way the Strasbourg courts jurisprudence may develop, if there are doubts as to the significance of the courts decision in Zaichenko.
+Miranda shows that reasons can be given which, at the very least, the court has not yet said are irrelevant for thinking that it would be going too far to hold that there is a rule that there must be access to a lawyer irrespective of whether the person who is being questioned by the police is being held in custody.
+The basis for the ruling in Miranda is that police custody or its equivalent creates particular pressures which mean that the persons will is more likely to be overcome when he is being questioned under conditions of that kind.
+The observation in Salduz, para 53 that the rationale of the generally recognised international human rights standards relates in particular to the protection of the accused against abusive coercion on the part of the authorities fits in with this line of reasoning.
+This feature is likely to be absent when questions are being put at the locus or in the persons home simply with a view to deciding whether the person being questioned is to be treated as a suspect and, as such, to be subjected to further procedures.
+The case for police custody or its equivalent
+I should like, before stating my conclusions, to say a bit more about why I would hold that in principle the line as to when access to legal advice must be provided before the person is questioned should be drawn as from the moment that he has been taken into police custody, or his freedom of action has been significantly curtailed as it was put in Zaichenko, para 48.
+I return to the points I made in para 34, above.
+The privilege against self incrimination is not an absolute right: Murray v United Kingdom (1996) 22 EHRR 29, para 47; Brown v Stott 2001 SC (PC) 43, 64, per Lord Steyn.
+At p 60 Lord Bingham said that while it could not be doubted that such a right must be implied, there is no treaty provision which expressly governs the effect or extent of what is to be implied.
+At p 74 I said that implied rights are open, in principle, to modification or restriction so long as this is not incompatible with the right to a fair trial.
+We do know however that the right is primarily concerned with respecting the will of the person to remain silent: see Saunders v United Kingdom (1996) 23 EHRR 313, para 68.
+A person is therefore free to speak to the police and to answer questions if he is willing to do so, even after he has been cautioned.
+He can provide them with self incriminating answers if he is willing to do this, and his answers will be admissible if they are truly voluntary.
+This approach to the problem is familiar in domestic law: see para 22, above.
+So long as it is applied the fundamental right under article 6 to a fair trial will be guaranteed.
+The test is whether the will of the person to remain silent, if that is his will, has been respected.
+Answers cannot be extracted from him by unfair means, and he must be protected against the risk that they may be forced out of him.
+It is well understood that in some circumstances merely to caution the person that he has the right to remain silent will not be enough to protect him against the risk of a forced confession.
+The paradigm case is where he is in police custody.
+In such a situation the circumstances surrounding his questioning are likely to be oppressive and intimidating.
+The questioning is likely to be prolonged, and the atmosphere is likely to be coercive.
+In such circumstances it is reasonable to assume that he will be vulnerable to having a confession extracted from him against his will and to insist that special measures are needed to ensure that his rights are respected.
+As Lord Kerr points out, common experience tells us that a coercive atmosphere can exist independently of custody: para 147, below.
+That is why it was recognised in Miranda and in Zaichenko that a persons freedom of action to act as he wishes may be significantly impaired in other circumstances.
+But it does not follow that this will be so in every case when the police engage in conversation with a suspect.
+Circumstances will vary, and questioning which may become objectionable as the process continues may not be so during its initial stages.
+That is why I believe that a more flexible approach to the problem is called for than the rigid principle that Lord Kerr would adopt, which would involve laying down a rule that access to lawyer must always be provided before any police questioning can take place: see para 146, below.
+Lord Kerr says in para 148 that there is no reason to suppose that a person questioned by the police while not in detention would not experience the same need to acquiesce in the power of the police to require answers to potentially highly incriminating questions.
+The important question, he says, is whether the questions asked are liable to be productive of incriminating answers, not the circumstances in which they are being asked.
+That leads him to say that whenever questions of that kind are being put to a suspect they must be asked in the presence of a lawyer.
+I do not think that there is any support in the Strasbourg cases, or in such international authorities as we have been shown, for that proposition.
+The point that was being made in the Canadian case of R v Grant 2009 SCC 32; [2009] 2 SCR 353 to which he refers in para 147 was that there are situations in which psychological constraint amounting to detention have been recognised: the majority judgment of McLachlin CJ and LeBel, Fish, Abella and Charron JJ at para 30.
+These are where the subject is legally required to comply with a direction or command and where there is no such obligation but a reasonable person in the subjects position would feel so obligated.
+Not every conversation that takes place between the police and a suspect in which questions are asked is of that character.
+A demand or direction by a police officer is one thing.
+Questioning under caution is another.
+It is understandable that a person who is confronted by a direction or a demand by a police officer to provide information will feel that he has to comply with it.
+It is understandable too if the circumstances are such that he feels that he has no real choice in the matter.
+That is why the law requires that before questions are put to him by the police the suspect must be cautioned.
+In that way a fair balance is struck between the interests of the individual and the public interest in the detection and suppression of crime.
+The search for that balance is inherent in the whole of the Convention: Sporrong and Lnnroth v Sweden (1982) 5 EHRR 35, para 69.
+The whole point of the caution is to make it clear to the person that he is under no obligation to answer the questions that are being put to him.
+The requirement would be pointless if it is to be assumed that he will nevertheless feel, whatever the circumstances, that he has no alternative but to answer them.
+Whether the caution is enough to ensure that the person will have a fair trial will depend on the circumstances.
+Conclusion
+I return to the Lord Advocates submission that three features determine whether an individual has a right to legal advice under article 6 in accordance with the principle in Salduz.
+First, he must be a suspect.
+Second, he must be in police custody.
+Third, he must be the subject of police interrogation.
+The submission is that, unless all three features are present, he has no right of access to legal advice under article 6.
+The correct starting point, when one is considering whether the persons Convention rights have been breached, is to identify the moment as from which he was charged for the purposes of article 6(1).
+The guidance as to when this occurs is well known.
+The test is whether the situation of the individual was substantially affected: Deweer v Belgium (1980) 2 EHRR 439, para 46; Eckle v Germany (1982) 5 EHRR 1, para 73.
+His position will have been substantially affected as soon as the suspicion against him is being seriously investigated and the prosecution case compiled: Shabelnik v Ukraine (application no 16404/03) (unreported) given on 19 February 2009, para 57.
+In Corigliano v Italy (1982) 5 EHRR 334, para 34 the court said that, whilst charge for the purposes of article 6(1) might in general be defined as the official notification given to the individual by the competent authority of an allegation that he has committed an criminal offence, as it was put in Eckle, para 73, it may in some instances take the form of other measures which carry the implication of such an allegation.
+In ubinski v Slovenia (application no 19611/04) (unreported) given on 18 January 2007, paras 62 63 the court said that a substantive approach, rather than a formal approach, should be adopted.
+It should look behind the appearances and investigate the realities of the procedure in question.
+This suggests that the words official notification should not be taken literally, and that events that happened after the moment when the test is to be taken to have been satisfied may inform the answer to the question whether the position of the individual has been substantially affected.
+It is obvious that the test will have been satisfied when the individual has been detained and taken into custody.
+It must be taken to have been satisfied too where he is subjected to what Salduz, para 52 refers to as the initial stages of police interrogation.
+This is because an initial failure to comply with the provisions of article 6 at that stage may seriously prejudice his right to a fair trial.
+The moment at which article 6 is engaged when the individual is questioned by the police requires very sensitive handling if protection is to be given to the right not to incriminate oneself.
+The mere fact that the individual has been cautioned will not carry the necessary implication.
+But, when the surrounding circumstances or the actions that follow immediately afterwards are taken into account, it may well do so.
+The moment at which the individual is no longer a potential witness but has become a suspect provides as good a guide as any as to when he should be taken to have been charged for the purposes of article 6(1): Shabelnik v Ukraine, para 57.
+The Lord Advocate submitted that the protection of article 6(3)(c) was not engaged until the individual was actually taken into custody.
+But this cannot withstand the emphasis that the Strasbourg court puts on the consequences of an initial failure to comply with its provisions, as in Salduz, para 50; see also Zaichenko v Russia, para 42.
+As for the requirement that the individual must be in police custody, I would hold that the Strasbourg court has not said, or at least has not said with a sufficient degree of clarity, that a person who has become a suspect and is not in custody must, as a rule, have access to a lawyer while he is being questioned.
+I would attach particular importance to the judgment in Zaichenko v Russia, for the reasons given in para 46, above.
+That is not to say that the fact that the individual had no access to legal advice in that situation is of no consequence.
+If it was practicable for access to legal advice to be offered, this will be one of the circumstances that should be taken into account in the assessment as to whether the accused was deprived of a fair hearing, as he is entitled to respect for the right not to incriminate himself.
+But it is no more than that.
+The fact that the incriminating statements were made without access to a lawyer does not of itself mean that the rights of the defence are irretrievably prejudiced, as was held to be the case in Salduz on account of the lack of legal assistance while the applicant was in custody.
+The phrase police interrogation appears frequently in the cases where the applicant was detained in custody.
+It was suggested that, for the purposes of the rule about access to a lawyer, it means something more than just asking questions of an individual.
+These words are, however, extremely fact sensitive.
+Any questioning of an individual who has been detained in custody by persons who are referred to in the Strasbourg cases as representing the investigating authorities with the aim of extracting admissions on which proceedings could be founded will amount to interrogation for the purposes of the rule: for a statement to that effect in England, see R v Absolam (1989) 88 Cr App R 332, 336, per Bingham LJ.
+The same could be said of questioning that takes place at the roadside or in the persons home, depending on the circumstances.
+It is not necessary, if access to a lawyer is needed for the right to a fair trial to remain practical and effective (see Salduz, para 55), that the questioning should amount to an interrogation in the formal sense.
+It need not be a detailed and sustained course of questioning.
+Questions that the police need to put simply in order to decide what action to take with respect to the person whom they are interviewing are unlikely to fall into this category.
+But they are likely to do so when the police have reason to think that they may well elicit an incriminating response from him.
+With that introduction, I now turn to the questions that have been referred to this court.
+As I understand them, they invite us not only to deal with the situations that they describe as raising issues of principle but also to express our own view as to the answers that the Appeal Court should give on the facts as presented to us in each case.
+The answers to the questions referred
+The question in Ambroses case is whether the act of the Lord Advocate in leading and relying on evidence obtained in response to police questioning of the appellant conducted under common law caution at the roadside and without the appellant having had access to legal advice was incompatible with the appellants rights under article 6(1) and 6(3)(c).
+I would answer this question in the negative.
+Applying the test that I have described in para 62, above, I would hold that Ambrose was charged for the purposes of article 6 when he was cautioned and that the police officer had reason to think that the second and third questions were likely to elicit an incriminating response from him.
+This conclusion is supported by the way the question whether the applicant was charged was dealt with in Zaichenko v Russia, para 41, where the court said that, given the context of the road check and the applicants inability to produce proof that he had purchased the diesel, there should have been a suspicion of theft against the applicant at the moment of his questioning by the police.
+The context in Ambroses case was that, when he was approached by the police, he was drunk and sitting in the car.
+Suspicion that he was committing an offence fell on him as soon as he told the police that the keys were in his pocket.
+But I would hold it would be to go further than Strasbourg has gone to hold that the appellant is entitled to a finding that this evidence is inadmissible because, as a rule, access to a lawyer should have been provided to him when he was being subjected to this form of questioning at the roadside.
+This leaves open the question whether taking all the circumstances into account it was fair to admit the whole or any part of this evidence.
+There may, perhaps, still be room for argument on this point.
+So I would leave the decision as to how that question should be answered to the Appeal Court.
+The question in Ms case is whether the act of the Lord Advocate in leading and relying on evidence obtained in response to police questioning of the accused, conducted under common law caution at his home address and without the accused having had access to legal advice was incompatible with the accuseds rights under article 6(1) and 6(3)(c).
+I would hold that M was charged for the purposes of article 6 when he was cautioned by the police officer at his home address.
+Although he did yet not have enough information as that stage to detain him as a suspect under section 14 of the 1995 Act, his actions were sufficient to carry the implication that the purpose of his visit was to establish whether M was in that category.
+Even if that was not so at the moment when M was cautioned, the first question which the police officer put to him carried that implication.
+I also think that the police officer had reason to think that the second question that he asked (Were you involved in the fight?) was likely to elicit an incriminating response from him.
+But I would answer the question in this reference also in the negative, as it would be to go further than Strasbourg has gone to hold that the accused is entitled to a ruling that this evidence is inadmissible because, as a rule, access to a lawyer should have been provided to him when he was being asked these preliminary questions in his own home with a view to determining what further steps should be taken to deal with him in connection with the offence.
+As in Ambroses case, this leaves open the question whether, taking all the circumstances into account, it would be fair to admit the whole or any part of this evidence.
+I would leave it to the sheriff to answer that question.
+The question in Gs case is whether it is incompatible with the Panels Convention rights for the Lord Advocate to lead evidence of his statements and answers made during the course of the search conducted under warrant granted in terms of section 23(3) of the Misuse of Drugs Act 1971 as recorded in the Search Production Schedule.
+The Lord Advocate conceded that G was a suspect from the time of his first admission to possession of a quantity of heroin in his jeans.
+In must follow that he had been charged for the purposes of article 6 by the time the police began their search.
+The feature of this case which distinguishes it from the other two is that, although G had not yet been formally arrested and or taken into police custody, there was a significant curtailment of his freedom of action.
+He was detained and he had been handcuffed.
+He was, in effect, in police custody from that moment onwards.
+So I would answer the question in the affirmative.
+The circumstances were sufficiently coercive for the incriminating answers that he gave to the questions that were put to him without access to legal advice about the items to be found to be inadmissible.
+I would hold however that the same result need not follow in every case where questions are put during a police search to a person who is to be taken to have been charged for the purposes of article 6.
+It would be to go further than Strasbourg has gone to hold that a person has, as a rule, a Convention right of access to a lawyer before answering any questions put to him in the course of a police search.
+It is not because there is a rule to this effect that I would answer the question in the affirmative.
+Rather it is because it is plain from the particular circumstances of the case that G was, in effect, a detainee when he was being questioned by the police.
+In the absence of such indications of coercion the question, as in the other cases, will be whether, taking all the circumstances into account, it would be fair to admit the whole or any part of the evidence.
+I am in full agreement with Lord Hopes judgment in this case and there is
+LORD BROWN
+comparatively little that I want to say in addition.
+Cadder is authority for an absolute rule, derived from the European Court of Human Rightss decision in Salduz v Turkey (2008) 49 EHRR 421, that the Crown cannot lead and rely upon evidence of anything said by an accused without the benefit of legal advice during questioning under detention at a police station.
+For convenience I call this the Cadder rule and refer to it as absolute notwithstanding the Courts recognition in Salduz itself (at para 55) that compelling reasons may exceptionally justify denial of access to a lawyer (providing always that such a restriction does not unduly prejudice the defence) since for present purposes those possible exceptional cases can safely be ignored.
+The critical issue arising for our determination on these references is whether the Cadder rule applies equally to anything said by an accused in answer to police questioning even before he is detained at a police station, providing only that at the time of such questioning he is already a suspect and charged within the meaning of article 6(1) of the Convention (his situation substantially affected as explained by Lord Hope at para 39).
+Although these are, of course, Scottish references and, rather to my regret, we have not had the benefit of any intervention on behalf of English and Welsh prosecuting authorities to assist us as to the legal position south of the border, I cannot but notice that on their face the statutory provisions governing the position in England and Wales sit a little uneasily even with the absolute rule in Cadder, let alone with the substantial extension to that rule now proposed by the respective accused in these references.
+Section 76(2) of the Police and Criminal Evidence Act 1984 (PACE) provides: If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained (a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.
+By section 82(1) of PACE, confession is defined to include any statement wholly or partly adverse to the person who made it and by section 76(8) oppression is defined to include torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture).
+The only absolute statutory rule, therefore, is that confessions are inadmissible under PACE if obtained by oppression or in consequence of anything said or done likely to render them unreliable.
+Generally speaking the court would not regard a confession elicited during questioning under detention at a police station as unreliable merely because the suspect had not at the time had the benefit of legal advice (unless, of course, by reason of youth or mental frailty or for any other reason the suspect may be regarded as having been particularly vulnerable to such questioning see, for example, R v McGovern (1990) 92 Cr App R 228).
+Nevertheless the principle established in Salduz that underlies the Cadder rule is, I apprehend, properly given effect in England and Wales by the appropriate application of sections 58 and 78 of PACE which provide respectively: 58(1) A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time. 78(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
+Consistently, therefore, with the operation of the Cadder rule in Scotland, the discretion to exclude evidence under section 78(1) is, I apprehend, routinely exercised in England and Wales in the case of significant and substantial breaches of the right to legal advice conferred by section 58 and the related rights arising under Code C of the Codes of Practice established under PACE.
+In England and Wales, however, suspects do not, as I understand it, have a right to free legal advice before their arrest and admission into custody.
+The polices only obligation at this earlier stage is to caution the suspect before questioning begins.
+Once, however, a decision to arrest is made and once grounds for arrest exist it cannot then be delayed so as to defer the suspects right to legal advice the police are required to stop the questioning and to resume it only at the police station.
+On arrival at the police station the detainee must be advised about his right to free legal advice, including a right to speak to a solicitor on the telephone, and he must be asked if he wishes to do so.
+Once the interview begins he must again be reminded of his right to free legal advice.
+So much for the position obtaining under English law.
+Somewhat to my surprise, my own brief judgment in Cadder is sought to be prayed in aid in support of the respondents contention on these references that the principle against self incrimination requires a suspect to be given access to legal advice before he is first questioned whatever may be the circumstances of that questioning providing only that article 6(1) is engaged (as indeed it was held to be engaged even in the situation that arose in Zaichenko v Russia (application no 39660/02) (unreported) (judgment given 18 February 2010) see paras 41 44 of Lord Hopes judgment).
+With the best will in the world, however, I cannot recognise my judgment in Cadder as offering the least support for any such contention.
+On the contrary, the whole context of that judgment was interrogation in a police station and in the last sentence I was endeavouring to explain the principal considerations which seem to me to underlie the principle against self incrimination, namely the importance of guarding against both inadequate police investigation and the exploitation of vulnerable suspects.
+Strasbourgs evident core concern in Salduz (see in particular para 53 of the Courts judgment) is that suspects should be protected against abusive coercion and that miscarriages of justice should be prevented.
+Quintessentially such risks arise in the very situation under consideration in Salduz: the interrogation of a terrorist suspect in police custody.
+Small wonder that the court (at para 53) saw its decision as in line with the generally recognised international human rights standards, standards which may be seen from the instruments referred to in the footnotes to relate specifically to rights of access to a lawyer during, rather than before, suspects are taken into police custody.
+Another decision relied upon by the respondents is that of the Supreme Court of Canada in R v Grant [2009] 2 SCR 353 and true it is that the court there, having given a wide meaning to the concept of detention, concluded on the particular facts of that case (which involved the kerbside questioning of a suspect leading to his being searched and found to be carrying a loaded firearm) that the police had breached section 10(b) of the Canadian Charter of Rights and Freedoms by failing before questioning the suspect to advise him of his right to speak to a lawyer.
+Section 10(b) provides: Everyone has the right on arrest or detention . (b) to retain and instruct counsel without delay and to be informed of that right .
+Importantly, however, the Supreme Court concluded that, the breach of section 10(b) notwithstanding, the trial judge had been entitled pursuant to section 24(2) of the Charter to admit the incriminating evidence and in the result upheld the conviction.
+Section 24(2) provides: Where . a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
+For present purposes, two paragraphs only from the head note to the courts immensely long judgments must suffice: When faced with an application for exclusion under section 24(2), a court must assess and balance the effect of admitting the evidence on societys confidence in the justice system having regard to: (1) the seriousness of the Charter infringing state conduct, (2) the impact of the breach on the Charter protected interests of the accused, and (3) societys interest in the adjudication of the case on its merits.
+At the first stage, the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence.
+The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.
+The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the infringed right.
+The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.
+At the third stage, a court asks whether the truth seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion.
+Factors such as the reliability of the evidence and its importance to the Crowns case should be considered at this stage.
+The weighing process and the balancing of these concerns is a matter for the trial judge in each case.
+Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination.
+Here, the gun was discovered as a result of the accuseds statements taken in breach of the Charter.
+When the three stage inquiry is applied to the facts of this case, a balancing of the factors favours the admission of the derivative evidence.
+The Charter infringing police conduct was neither deliberate nor egregious and there was no suggestion that the accused was the target of racial profiling or other discriminatory police practices.
+The officers went too far in detaining the accused and asking him questions, but the point at which an encounter becomes a detention is not always clear and the officers mistake in this case was an understandable one.
+Although the impact of the Charter breach on the accuseds protected interests was significant, it was not at the most serious end of the scale.
+Finally, the gun was highly reliable evidence and was essential to a determination on the merits.
+The balancing mandated by section 24(2) is qualitative in nature and therefore not capable of mathematical precision.
+However, when all these concerns are weighed, the courts below did not err in concluding that the admission of the gun into evidence would not, on balance, bring the administration of justice into disrepute.
+The significant impact of the breach on the accuseds Charter protected rights weighs strongly in favour of excluding the gun, while the public interest in the adjudication of the case on its merits weighs strongly in favour of its admission.
+However, the police officers were operating in circumstances of considerable legal uncertainty, and this tips the balance in favour of admission.
+In short, the position in Canada, just as in England and Wales, is that no absolute rule applies to exclude incriminating evidence obtained in breach of a constitutional right to legal advice although it may be supposed that in flagrant cases equivalent to those where the Cadder rule itself would apply directly (where a suspect in police custody is denied access to a lawyer during interrogation) the Canadian courts would invariably strike the section 24(2) balance in the accuseds favour.
+It follows from all this that I share Lord Hopes view that the court in Salduz ought not to be understood to be laying down an absolute rule of exclusion with regard to admissions made without the opportunity to take legal advice irrespective of whether or not the suspect was at the time actually in police custody.
+The contention that Salduz requires the Cadder rule to be extended in this way to my mind founders on a proper understanding both of what the Strasbourg Court was there saying in the particular factual context of that case, and of the recognised international human rights standards underlying that decision.
+It also seems to me inconsistent both with the terms of Judge Bratzas concurring opinion in that case (implicit in which was a recognition that under the majority judgment the very earliest time at which a suspect could be found entitled to legal advice is when he is taken into police custody or pre trial detention) and with Strasbourgs post Salduz jurisprudence (helpfully analysed by Lord Hope in great detail), most notably the judgment in Zaichenko v Russia itself.
+Also like Lord Hope (see paras 50 53 above) I find some assistance here in the decision of the Supreme Court of the United States in Miranda v Arizona 384 US 436 (1966).
+As Lord Hope observes (at para 53), the significance of Miranda is that it adopts a custodial approach to the question as to when access to a lawyer is required, the fundamental reason being that it is at that point that the circumstances in which [the suspects] interrogation takes place are inherently intimidating, because [of] the compelling atmosphere inherent in the process of in custody interrogation.
+As, however, Lord Hope also observes: It was noted that an interpretation of the requirement that the right to legal advice arose at an earlier stage would hamper the traditional function of the police in investigating crime.
+I have already indicated (at para 80 above) my own understanding of the central considerations underlying the principle against self incrimination: the importance of guarding against the exploitation of vulnerable suspects and also against inadequate police investigation.
+In the intimidating circumstances of custodial interrogation there are undoubtedly some suspects who confess to crimes of which in truth they are innocent.
+And undoubtedly too, once a suspect has confessed, the police are likely to become less inclined to pursue other useful avenues of investigation that may identify the actual offender.
+Thus it is that miscarriages of justice can occur.
+As Miranda suggests, however, the introduction of a right to legal advice (and what, of course, is being contended for here is an absolute right to free legal advice) at some pre custodial stage, so far from encouraging proper police investigation into crime, would in fact tend to inhibit it.
+It is, in short, one thing to require of the police that they caution a suspect before questioning him, quite another to require that he be provided with legal assistance as a precondition of any self incriminating answers later becoming admissible in evidence against him.
+This is the critical distinction which Zaichenko v Russia so clearly illustrates.
+The Court there considered quite separately the applicants article 6 complaints as to (i) legal assistance and (ii) the privilege against self incrimination and the right to remain silent and in the event it found no violation of article 6 (3)(c) in respect of the former but a violation of article 6(1) in respect of the latter (the applicants self incriminatory answers to the polices roadside questioning having been elicited without his first being cautioned).
+Like Lord Hope, I too would in the present context give full weight to what has come to be known as the Ullah principle see para 20 of Lord Binghams judgment in R (Ullah) v Special Adjudicator [2004] 2 AC 323.
+It would seem to me quite wrong for this court now to interpret article 6 of the Convention as laying down an absolute exclusory rule of evidence that goes any wider than Strasbourg has already clearly decided to be the case.
+And whatever else one may say about the Strasbourg jurisprudence, it can hardly be regarded as deciding the present issue clearly in the respondents favour.
+In the result I agree with the answers proposed by Lord Hope to the questions posed in the respective references.
+Essentially it comes to this.
+In the cases of Ambrose and M there is no absolute rule such as that laid down in Cadder which precludes reliance on the evidence in question.
+Rather it must be for the trial court to decide just as an English court must decide under section 78(1) of PACE whether the evidence ought fairly to be admitted or excluded.
+In Gs case, however, because he was, as Lord Hope puts it (para 71), in effect, in police custody from the time when, following his arrest, he was handcuffed and detained, the Cadder rule should be held to apply to his questioning during the subsequent search.
+That said, I also agree with Lord Hope (para 72) that the Cadder rule would by no means routinely apply to exclude answers to questions put to a suspect without his having been given the opportunity to seek legal advice during a search.
+That too would be to go further than Strasbourg has yet gone.
+LORD DYSON
+I agree with the answers proposed by Lord Hope for the reasons that he gives as well as those given by Lord Brown.
+In Salduz v Turkey (2008) 49 EHRR 421 (applied by this court in Cadder v HM Advocate [2010] UKSC 43, [2010] SLT 1125), the ECtHR decided that article 6 of the European Convention on Human Rights (the Convention) requires that, as a rule, access to a lawyer should be provided to a suspect when he is interrogated by the police while he is in detention; and that there will usually be a violation of article 6 if incriminating statements made by a suspect during a police interrogation in such circumstances are relied on to secure a conviction.
+I shall refer to this as the Salduz principle.
+The central question that arises in the present proceedings is whether the Salduz principle also applies to interrogations of a suspect that are conducted before he is placed in detention.
+Lord Hope says that there is no sufficiently clear indication in the Strasbourg jurisprudence of how the ECtHR would resolve this question and that we should not apply the Salduz principle to situations to which the ECtHR has not clearly stated that it applies.
+Lord Kerr says that (i) even if the ECtHR has not clearly decided whether article 6 requires the Salduz principle to be applied to statements obtained from a suspect when he is not in detention, that is not a sufficient reason for this court to refuse to do so (paras 126 to 130); (ii) to draw a distinction between evidence obtained before and after a suspect is detained is not only arbitrary, it is illogical (para 136); and (iii) in any event, an analysis of the Strasbourg jurisprudence clearly shows that it draws no distinction between the two cases (paras 146 and 148).
+It is convenient to start with explaining why I cannot accept Lord Kerrs third proposition, since, if it is clear from the Strasbourg jurisprudence that the Salduz principle applies whether or not the evidence is obtained from the suspect while he is in detention, then the premise on which the judgments of Lord Hope and Lord Brown are based falls away.
+As Lord Hope explains at paras 26 to 33, the judgment in Salduz was concerned with whether there was or should be a rule that there was a right of access to a lawyer where the person being interrogated was in police custody.
+On its facts, it was a case about a suspect who had been interrogated by the police while he was in custody.
+The references in para 53 to generally recognised international human rights standards (which are concerned with the position of suspects who are in custody) and to abusive coercion strongly suggest that the court was only considering the position of suspects who are in custody.
+Paras 37 to 44 contains a discussion of the international law materials relating to a suspects right of access to a lawyer during police custody.
+Unsurprisingly, the judgment says nothing explicitly about the position of a suspect who is not in custody.
+I agree with Lord Hope that the concurring opinions of Judge Bratza and Judge Zagrebelski lend further support to the conclusion that the court was only considering the position of suspects who are in custody.
+Lord Kerr says that Salduz is authority for the broad proposition that a suspect is entitled to have access to a lawyer at the investigation stage (because he is in a particularly vulnerable position at that stage of the proceedings) and that there is nothing in the reasoning of the decision to indicate that the investigation stage only begins after the suspect has been detained.
+But the judgment should be read as a whole.
+In my view, the better interpretation is that, for the reasons I have already given, the court was only addressing the issue of police interrogation of a suspect in custody.
+It was making the point that for such a suspect the investigation stage takes place while he is in custody, where there is the risk of abusive coercion and he is in a particularly vulnerable position of making self incriminating statements.
+Further, the decision of the First Section in Zaichenko provides clear support for the view that the Strasbourg jurisprudence draws a distinction between the fruits of police questioning of a suspect who is in detention and one who is not.
+I agree with the reasons given by Lord Hope at para 46 for rejecting the arguments that Zaichenko was wrongly decided.
+I note that Lord Kerr does not suggest that it was wrongly decided.
+He analyses the reasoning of Zaichenko closely at paras 24 to 40.
+He says that the basis for the courts decision that there had not been a violation of article 6(3)(c) is the cumulative effect of a number of factors (which he identifies at para 33) and that none of them, if taken in isolation, would have been sufficient to support the courts conclusion.
+I cannot accept this interpretation of the courts reasoning in Zaichenko.
+It is true that at para 46, the court notes at the outset that the applicant waived his right to a lawyer.
+But the court went on to give other reasons for its decision at para 47.
+It said that the present case is different from previous cases concerning the right to legal assistance in pre trial proceedings (see Salduz. .) because the applicant was not formally arrested or interrogated in police custody.
+He was stopped for a roadcheck. (emphasis added).
+The court was, therefore, fully alive to the difference between police questioning of a suspect at the roadside and police questioning of a suspect who has been taken into custody.
+It was in the context of this difference that the court made express reference to Salduz.
+Plainly and explicitly it did not apply the Salduz principle and it gave its reasons for not doing so.
+The principal reason was given at para 48 which Lord Kerr has set out at para 160 below.
+I agree with Lord Kerr that this paragraph is not easy to follow.
+But what is clear is that the court considered that, whatever restrictions faced the suspect when he was being questioned at the roadside, they did not amount to a significant curtailment of [his] freedom of action sufficient to entitle him to legal assistance at this early stage of the proceedings.
+This is an essential part of the courts reasoning.
+It is clear that the court considered that the fact that the questioning took place before the suspect had been formally arrested or detained was critical.
+I conclude, therefore, that the Strasbourg jurisprudence does not clearly show that the Salduz principle applies to statements made by a suspect who is not in detention when he is questioned by the police.
+The only case to which our attention has been drawn in which the Salduz principle has been considered in relation to statements made by a suspect who is not in detention is Zaichenko.
+For the reasons that I have given, Zaichenko strongly suggests that the Salduz principle does not apply in that situation.
+I turn to Lord Kerrs second proposition.
+He says that the animation of the right under article 6(1) cannot be determined in terms of geography (para 133) and that it is arbitrary and illogical to hold that a suspect has no right to access to a lawyer if he is questioned by the police until he is taken into custody: the suspect is as likely to make incriminating statements outside as inside a police station and is therefore in equal need of the protection of article 6(3)(c) in both situations.
+The essential question is at what stage of the proceedings access to a lawyer should be provided in order to ensure that the right to a fair trial is sufficiently practical and effective for the purposes of article 6(1).
+What fairness requires is, to some extent, a matter of judgment.
+I accept that opinions may reasonably differ on whether the line for providing a suspect with access to a lawyer should be drawn at the point when the person being questioned becomes a suspect or at the point when he is taken into custody.
+I do not doubt that being interrogated by the police anywhere can be an intimidating experience and that a person may make incriminating statements to the police wherever the interrogation takes place.
+This can occur in a situation of what the majority of the Canadian Supreme Court described as psychological detention in R v Grant 2009 SCC 32 ; [2009] 2 SCR 353, at para 30.
+On the other hand, the arresting of a suspect and placing him in custody is a highly significant step in a criminal investigation.
+The suspect cannot now simply walk away from the interrogator.
+For most suspects, being questioned after arrest and detention is more intimidating than being questioned in their home or at the roadside.
+The weight of the power of the police is more keenly felt inside than outside the police station.
+As was said in Miranda v Arizona 384 US 436 (1966) at p 478, there is a compelling atmosphere inherent in the process of in custody interrogation.
+No doubt, it is also present to the mind of the suspect that the possibility of abusive coercion is greater inside than outside the police station.
+Whether the difference between interrogation inside and outside the police station is sufficient to justify according the suspect access to a lawyer in one situation but not the other is a matter on which opinions may differ.
+But I do not see how it can be said to be arbitrary or illogical to recognise that there is a material difference between the two situations.
+I can agree with Lord Kerr (para 167) that one should be careful about making assumptions about the Miranda experience or believing that it can be readily transplanted into European jurisprudence.
+But this counsel of caution is hardly consistent with the assertion that the adoption of the distinction made in Miranda is arbitrary and illogical.
+So what should this court do in these circumstances? This brings me to Lord Kerrs first proposition.
+As I have said, to the extent that the ECtHR has spoken on the question at all, Zaichenko contains a clear statement that the Salduz principle does not apply to statements made by a suspect during police questioning while the suspect (i) is not in custody or (ii) is not deprived of his freedom of action in any significant way.
+I derive (ii) from para 48.
+That paragraph echoes the language of p 477 of Miranda: The principles announced today deal with the protection which must be given to the privilege against self incrimination when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way (emphasis added).
+I accept, however, that there is no clear and constant Strasbourg jurisprudence on the point.
+So the obligation in section 2 of the Human Rights Act 1998 to take account of judgments of the ECtHR does not compel a decision one way or the other: see R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23; [2003] 2 AC 295 para 26.
+Nor is this a case where, although Strasbourg has not expressly decided the point, it can nevertheless clearly be deduced or inferred from decisions of the ECtHR how the court will decide the point if and when it falls to be determined.
+Lord Kerr has referred to para 20 of Lord Binghams speech in R (Ullah) v Special Adjudicator [2004] 2 AC 323 and the dictum that the duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.
+Lord Brown extended this in R (Al Skeini and others) v Secretary of State for Defence [2008] 1 AC 153 at para 106 by saying that Lord Binghams dictum could as well have ended: no less, but certainly no more.
+At para 107 Lord Brown said that the Convention should not be construed as reaching any further than the existing Strasbourg jurisprudence clearly shows it to reach.
+Lady Hale said much the same at para 90.
+This approach was explicitly endorsed in R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29; [2011] 1 AC 1 by Lord Phillips at para 60, Lord Hope at para 93 and Lord Brown at para 147.
+But these statements are not entirely apposite where Strasbourg has spoken on an issue, but there is no clear and constant line of authority.
+That is the case here because there is only one case in which the ECtHR has expressly decided that the Salduz principle does not apply in relation to the interrogation of a suspect who is not in detention (Zaichenko).
+Moreover, despite the view I have expressed earlier in this judgment, I accept that it is arguable that the language of para 55 of the judgment in Salduz can and should be interpreted as holding that the Salduz principle does apply in such circumstances.
+So what should a domestic court do in this situation? Recognising that it is our duty to give effect to the domestically enacted Convention rights, I think that the correct approach was suggested at para 199 of the judgment of Lord Mance in Smith: However, it is our duty to give effect to the domestically enacted Convention rights, while taking account of Strasbourg jurisprudence, although caution is particularly apposite where Strasbourg has decided a case directly in point or, perhaps, where there are mixed messages in the existing Strasbourg case law and, as a result, a real judicial choice to be made there about the scope or application of the Convention.
+The position here is that Strasbourg has decided a case which is directly in point (Zaichenko).
+The most that can be said on behalf of the accused in these three cases is that by reason of (i) the broad terms in which para 55 of the judgment in Salduz is expressed and (ii) the decision in Zaichenko, it is arguable that there are mixed messages in the Strasbourg case law as to whether the Salduz principle applies to evidence obtained from a suspect who has been interrogated without access to a lawyer outside the police station.
+To use the words of Lord Mance, it follows that there is a real judicial choice to be made.
+Whether fairness requires the Salduz principle to apply in both situations raises questions of policy and judgment on which opinions may reasonably differ and as to which there is no inevitable answer.
+To demonstrate this, it is sufficient to contrast the approach of the US Supreme Court in Miranda with that of the Canadian Supreme Court in Grant.
+In these circumstances, I consider that caution is particularly apposite and that the domestic court should remind itself that there exists a supranational court whose purpose is to give authoritative and Europe wide rulings on the Convention.
+If it were clear, whether from a consideration of the Strasbourg jurisprudence or otherwise, that the Salduz principle applies to statements made by suspects who are not detained or otherwise deprived of their freedom of action in any significant way, then it would be our duty so to hold.
+But for the reasons that I have given, it is not clear that this is the case.
+In these circumstances, we should hold that the Salduz principle is confined to statements made by suspects who are detained or otherwise deprived of their freedom in any significant way.
+LORD MATTHEW CLARKE
+I refer to Lord Hopes judgment for his detailed description of the references and the background to them which I gratefully adopt.
+In R v Samuel [1988] QB 615 at p 630 Hodgson J, delivering the judgment of the Court of Appeal, described the right of a suspect to consult and instruct a lawyer as one of the most important and fundamental rights of a citizen.
+His Lordship did so in the context of section 58(1) of the Police and Criminal Evidence Act 1984 (PACE).
+The present references have raised the question as to when, and in what circumstances, such a right emerges as part of Scots law by virtue of the application of Article 6 ECHR.
+The Grand Chamber of the European Court of Human Rights in Salduz v Turkey (2008) 49 EHRR 421 held that the rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (para 55).
+In Cadder v HM Advocate 2010 SLT 1125 this court applied that decision to the existing law of Scotland and, in particular, to the operation of the powers of detention of persons then contained in sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995.
+As a result of the courts decision in Cadder the Scottish Parliament enacted certain provisions in the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010.
+In particular a new section 15A to the 1995 Act was enacted which is in the following terms: 15A Right of suspects to have access to a solicitor (c) (a) (a) (b) (1) This section applies to a person (the suspect) who is detained under section 14 of this Act, attends voluntarily at a police station or other premises or place for the purpose of being questioned by a constable on suspicion of having committed an offence, or is (i) arrested (but not charged) in connection with an offence, and (ii) being detained at a police station or other premises or place for the purpose of being questioned by a constable in connection with the offence. (2) The suspect has the right to have intimation sent to a solicitor of any or all of the following the fact of the suspects (i) detention (ii) attendance at the police station or other premises or place, or (iii) arrest (as the case may be), (b) the police station or other premises or place where the suspect is being detained or is attending, and (c) that the solicitors professional assistance is required by the suspect. (3) The suspect also has the right to have a private consultation with a solicitor (a) before any questioning of the suspect by a constable begins, and (b) at any other time during such questioning. (4) Subsection (3) is subject to subsections (8) and (9). (5) In subsection (3), consultation means consultation by such means as may be appropriate in the circumstances, and includes, for example, consultation by means of telephone. (6) The suspect must be informed of the rights under subsections (2) and (3) (a) without delay, or (b) (a) on arrival at the police station or other premises or place, and (b) in the case where the suspect is detained as mentioned in subsection (1)(a), or arrested as mentioned in subsection (1)(c), after such arrival on detention or arrest, (whether or not, in either case, the suspect has previously been informed of the rights by virtue of this subsection). (7) Where the suspect wishes to exercise a right to have intimation sent under subsection (2), the intimation must be sent by a constable if some delay is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders, with no more delay than is necessary. (8) In exceptional circumstances, a constable may delay the suspects exercise of the right under subsection (3) so far as it is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders that the questioning of the suspect by a constable begins or continues without the suspect having had a private consultation with a solicitor. (9) Subsection (3) does not apply in relation to the questioning of the suspect by a constable for the purpose of obtaining the information mentioned in section 14(10) of this Act.
+Prior to that enactment, and the decision in Cadder, the position was that the courts in Scotland had never recognised a suspects right to have access to a solicitor before or during questioning of him by the police.
+The position was, as stated in pre Cadder versions of Renton and Browns Criminal Procedure, 6th edition at para 24 39 as follows: any statement by a suspect in answer to police questions will be inadmissible in evidence at the subsequent trial of that suspect unless it has been obtained fairly, and that all the circumstances of the questioning (apart from whether or not a caution was given to a person accused of a crime) are relevant in so far, and only in so far, as they indicate the presence or absence of unfairness.
+That passage continued later: The current situation is that the fact that the accused was at the same time under suspicion or even under arrest is not in itself crucial, but is merely a circumstance like any other to be taken into account in assessing the fairness of the police, in the same way as the fact that he.did not have the services of a solicitor Reference was made to, inter alia, Law v McNicol 1965 JC 32, HM Advocate v Whitelaw 1980 SLT (Notes) 25 and HM Advocate v Anderson 1980 SLT (Notes) 104.
+As was also noted in Renton and Brown at para 24 39 There are no legal rules in Scotland governing the questioning of a suspect such as the Judges Rules and Administrative Directions issued by the Home Office.
+Nor were there, until the 2010 Act, any provisions similar to those provided in England and Wales under PACE.
+In HM Advocate v Cunningham 1939 JC 61 Lord Moncrieff at page 65 noted that after the accused had been charged and had replied, he subsequently received an incidental intimation that he might, if he so desired, require and obtain the assistance of a law agent.
+His Lordship continued: I think it would have been desirable that that intimation should have been made formally and should have been made at the very outset before the making of any charge, but I am satisfied that, in not making it, the police officers followed their usual practice and acted with an intention of complete fairness.
+Nonetheless, any such practice, in my opinion, ought to be reformed The later full bench decision in Chalmers v HM Advocate 1954 JC 66 gave some support for the view that all answers given by a suspect to a police officer were inadmissible and nothing was said about a suspects right to have a solicitor present when he was being questioned.
+Although that decision was never over ruled its influence was considered to have been virtually removed by subsequent case law, concerned, it seems, with rising crime rates, which made the criterion of admissibility, fairness see Lord Advocates Reference (no. 1 of 1983), 1984 JC 52.
+The decision in the case of Cadder, in applying the law as set out in Salduz, can be seen as truly innovative as regards what had been understood to be the domestic law of Scotland up until that time.
+The present references raise, in the first place, the question as to how far the innovation goes having regard to the relevant Strasbourg jurisprudence.
+The focus of the hearing before this court was concerned, to a significant extent, with how the suspects right to access to a lawyer has been defined to date by the Strasbourg court, either expressly, or by necessary implication, whatever other arguments there may be in principle, or policy, for defining it otherwise.
+The defence in the cases before us sought to take from the language of the ECtHR, in discussing the right in the decided cases on the topic, a broad approach to its nature and its extent.
+They had some basis for doing so having regard to how the court expressed itself in Salduz at para 55 where the Grand Chamber was to the effect Article 6(1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police.
+At para 52 of the judgment one finds the following Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation.
+That language, it was submitted, focused on the status of the person as a suspect when determining his rights rather than his position being that of a person in custody.
+Similar language can be seen in previous judgments of the Court.
+For example in Panovits v Cyprus (Application No 4268/04) (unreported) given 11 December 2008 the Court, at para 66, observed that the concept of fairness enshrined in Article 6 requires that the accused be given the benefit of the assistance of a lawyer already at the initial stages of police interrogation see also Borotyuk v Ukraine (Application No 33579/04) (unreported) given 16 December 2010 at para 79.
+It should, however, be noted that Panovits was a case which concerned the questioning of a child when the child had gone to the police station with his father, as requested by the police, and was thereafter arrested.
+Borotyuk was also a custody case.
+In Panovits, at para 65, the court, having said that it was reiterating that the right to silence and the right not to incriminate oneself were generally recognised international standards, which lay at the heart of the notion of a fair procedure under Article 6, went on to say: Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6.
+In Salduz similar remarks were made by the court at paragraph 53: These principles, outlined at para 52 above, are also in line with the generally recognised international human rights standards which are at the core of the concept of a fair trial and whose rationale relates in particular to the protection of the accused against abusive coercion on the part of the authorities.
+They also contribute to the prevention of miscarriages of justice and the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused.
+Those remarks would tend, in my judgement, to support the contention that the focus of the courts concern in Salduz, and other cases, has been in relation to those situations where methods of coercion or oppression might be more readily, and effectively, employed upon a suspect person, namely when his liberty has been curtailed by the authority detaining him.
+Significant support for that being the focus of such a rule is to be found in the jurisprudence of the United States, and particularly the seminal decision of the US Supreme Court in Miranda v State of Arizona 384 US 436 (1966), where at p 467, para 23 the court said: Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.
+We have concluded that without proper safeguards the process of in custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individuals will to resist and to compel him to speak where he would not otherwise do so freely.
+In order to combat these pressures and to permit a full opportunity to exercise the privilege against self incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honoured.
+The court then at pp 478 479, paras 66, 67 defined the right and its extent, together with its rationale in the following way: To summarise, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning the privilege against self incrimination is jeopardised.
+Procedural safeguards must be employed to protect the privilege and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honoured, the following measures are required.
+He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.
+Opportunity to exercise these rights must be afforded to him throughout the interrogation.
+After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement.
+But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.
+The Miranda decision has informed international legal discussion of the right of the suspect to have access to a lawyer, since the decision was given.
+Another factor pointing towards the more restrictive extent of the right in question is that the Strasbourg court, in defining it, has done so by referring to the context of what are described as pre trial proceedings, see para 50 of the Salduz judgment.
+The person taken into detention who, in due course, may face being tried for a crime, might well be said to be involved, at the stage of any questioning, while detained, to be in pre trial proceedings for the purposes of Article 6.
+That that is the context in which the Strasbourg court has been considering the right in question under Article 6 is, I think, supported by what the court had to say recently in Affaire Brusco c France (Requete No 1466/07) (unreported) given 14 October 2010, at para 45: La Cour rappelle galement que la personne place en garde vue a le droit dtre assiste dun avocat ds le dbut de cette mesure ainsi que pendant les interrogatoires, et ce a fortiori lorsquelle na pas t nforme par les autorits de son droit de se taire.
+That passage also, to my mind, points to the phrases in Salduz early access to a lawyer and from the first interrogation of a suspect by the police as being references to the earliest point in time after the person is taken into custody with his liberty having been restricted by the investigating authorities.
+The reference by the Strasbourg court to equality of arms, at para 53 of its judgment in Salduz, also, in my opinion, supports that approach.
+Once a persons liberty is curtailed by the authorities, the balance of power between him and the representatives of the state shifts significantly and, it might be said, requires to be redressed by his having access to a lawyer.
+All of these considerations, taken together, with what Lord Hope has to say in his analysis of the Salduz decision, and other Strasbourg jurisprudence, ultimately persuades me that the proper understanding of those decisions is that the right to have access to a lawyer emerges at the point when the suspect is deprived of his liberty of movement, to any material extent, by the investigating authorities and is to be questioned by them.
+It follows that I am in agreement with Lord Hope that the Strasbourg jurisprudence, to date, does not support the defence contention in these references that the ECtHR has gone as far as to say that the right emerges as soon as a suspect is to be questioned by the police in whatever circumstances.
+As to whether this court should go further than the ECtHR seems to have gone so far, certain important considerations lead me to the conclusion that it should not.
+The first is the difficulty that can arise in relation to defining precisely at what point in time someone becomes a suspect, as opposed to being a witness or a detained person.
+The second is that the broader version of the right, contended for by the defence in these cases, could have serious implications for the proper investigation of crime by the authorities.
+If the police are to be required to ensure that a person who they wish to question about the commission of a crime (in a situation where the circumstances point to the person being a possible suspect) should have access to a lawyer, if he so wishes, then such a requirement could hamper proper and effective investigations in situations which are often dynamic, fast moving and confused.
+The unfortunately regular street brawls in city and town centres, or disturbances in crowded places like night clubs, which, on occasions, result in homicide, are simply examples of situations which highlight the problems that might be involved.
+In relation to the first of these considerations I note that the limits of the Miranda rights have been, very recently, (16 June 2011) re visited by the US Supreme Court in JDB v North Carolina 564 US 2011.
+That case involved the questioning of a 13 year old.
+The majority of the court held that the childs age was a relevant factor to be taken into account in addressing the question as to whether he had been in custody at the time of questioning.
+The majority did not depart from the test being whether or not the person was in custody at the relevant time and at page 18 of the opinion of the court they directed the state court to address that question, taking account of all of the relevant circumstances of the interrogation, including the childs age at the time.
+The disagreement between the majority and minority was with regard to the relevance of the childs age in judging of the question as to whether or not he was in custody at the relevant time.
+In giving the dissenting judgment, with which the rest of the minority concurred, Alito J at pp 1 2 said Mirandas custody requirement is based on the proposition that the risk of unconstitutional coercion is heightened when a suspect is placed under formal arrest or is subjected to some functionally equivalent limitation on freedom of movement.
+Alito J, then, at page 8 of his judgment, under reference to previous authorities remarked that a core virtue of the Miranda rule has been the clarity and precision of its guidance to police and courts.
+Again at page 13 he remarked that a core virtue of Miranda was the ease and clarity of its application.
+I am persuaded that the value of clarity and certainty in this area are relevant factors in deciding the extent of the right.
+As to the second consideration, I recall what was said by Lord Wheatley in Miln v Cullen 1967 JC 21 at pp 29 30: While the law of Scotland has always very properly regarded fairness to an accused person as being an integral part of the administration of justice, fairness is not a unilateral consideration.
+Fairness to the public is also a legitimate consideration, and in so far as police officers in the exercise of their duties are prosecuting and protecting the public interest, it is the function of the Court to seek to provide a proper balance to secure that the rights of individuals are properly preserved, while not hamstringing the police in their investigation of crime with a series of academic vetoes which ignore the realities and practicalities of the situation and discount completely the public interest.
+That dictum is, of course, of its time and pre dates the experience of examples of convictions obtained on false confessions which have caused justifiable public concern.
+Nevertheless it is difficult, even now, to contradict the substance of what his Lordship said.
+As was said by Binnie J in the Canadian case of R v Grant 2009 SCC 32 [2009] 2 SSC 353 at para 180 It is not controversial that in the early stages of a criminal investigation the police must be afforded some flexibility before the lawyers get involved.
+The police do have the right to ask questions and they need to seek the co operation of members of the public, including those who turn out to be miscreants.
+It seems to me that the balancing of legitimate interests referred to by Lord Wheatley is a further justification for restricting the right to have access to a lawyer to situations in which the suspect is in custody.
+The law in formulating a right designed to protect and support a legitimate interest, such as the right to silence, should seek to avoid defining that right in such a way, as to damage, or unduly inhibit another legitimate interest such as the efficient investigation of crime.
+The task, which may be a delicate and difficult one, is to produce a result which strikes a rational balance between the two interests.
+I consider the balance struck in the US Miranda jurisprudence achieves that end.
+For the foregoing reasons I agree entirely with Lord Hope as to the way in which references in the cases of Ambrose and M should be answered.
+In relation to these two cases the admissibility or otherwise of the replies to questioning will fall to be determined by the Appeal Court and the trial judge respectively in accordance with the rules as to fairness.
+In the passage in his judgment in Miln v Cullen, cited above, Lord Wheatley continued: Even at the stage of routine investigations, where much greater latitude is allowed, fairness is still the test, and that is always a question of circumstances.
+As regards Gs case I consider that the right to access to a lawyer, before questioning, arises not only when the suspect is taken into the physical surroundings of a police station.
+The focus should be on whether, at the commencement of the proposed questioning, the individuals liberty is significantly restricted by the police.
+The location where that occurs is not in itself conclusive.
+In relation to rights of this kind matters should be judged in accordance with what the substance of the position is rather than its form.
+It follows that I, therefore, also agree with Lord Hope in the way in which the reference in Gs case should be answered.
+I also agree with Lord Hope, for the reasons given by him, that the Cadder rule would not necessarily routinely apply to exclude answers to questions, put to a suspect, without his having been given the opportunity to seek legal advice, during a search.
+There is no justification in the Strasbourg jurisprudence, as I read it, for the right to be so interpreted.
+By way of a footnote I would add this.
+Our attention was drawn by the defence, in support of their position, to a Proposal for a Directive of the European Parliament and of the Council on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest recently published by the European Commission Brussels, XXX COM (2011) 326/3.
+Article 3(1) of the draft of the proposed Directive, attached to that document is in the following terms: 1.
+Member States shall ensure that suspects and accused persons are granted access to a lawyer as soon as possible and in any event: (a) before the start of any questioning by the police or other law enforcement authorities; (b) upon carrying out any procedural or evidence gathering act at which the persons presence is required or permitted as a right in accordance with national law, unless this would prejudice the acquisition of evidence; (c) from the outset of deprivation of liberty.
+The proposed Article 3 appears to envisage three discrete situations where the right of access to a lawyer should arise.
+The authors of the proposal appear to believe that those draft provisions reflect the settled jurisprudence of the Strasbourg court see para 13.
+It follows from what I have said above that their apparent understanding of the Strasbourg jurisprudence does not coincide with my own.
+LORD KERR
+Introduction
+The well known aphorism of Lord Bingham in para 20 of R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323 that the duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less has been given a characteristically stylish twist by Lord Brown in R (Al Skeini and others) v Secretary of State for Defence [2007] UKHL 26; [2008] 1 AC 153 at para 106 where he said that the sentence could as well have ended: no less, but certainly no more.
+In keeping with this theme, some judges in this country have evinced what might be described as an Ullah type reticence.
+On the basis of this, it is not only considered wrong to attempt to anticipate developments at the supra national level of the Strasbourg court, but there is also the view that we should not go where Strasbourg has not yet gone.
+Thus, in the present case Lord Hope says that this courts task is to identify where the jurisprudence of the Strasbourg court clearly shows that it currently stands and that we should not expand the scope of the Convention right further than the current jurisprudence of that court justifies.
+Lord Binghams formulation of the principle expressed in para 20 of Ullah was prompted by his consideration of the effect of section 2 of the Human Rights Act 1998 by which the courts of this country are enjoined to take into account Strasbourg case law.
+Therefore, said Lord Bingham, although such case law was not strictly binding, where a clear and constant theme of jurisprudence could be detected, it should be followed because the Convention, being an international instrument, had as the authoritative source of its correct interpretation the Strasbourg court.
+A refusal to follow this would dilute or weaken the effect of the Strasbourg case law.
+I greatly doubt that Lord Bingham contemplated much less intended that his discussion of this issue should have the effect of acting as an inhibitor on courts of this country giving full effect to Convention rights unless they have been pronounced upon by Strasbourg.
+I believe that, in the absence of a declaration by the European Court of Human Rights as to the validity of a claim to a Convention right, it is not open to courts of this country to adopt an attitude of agnosticism and refrain from recognising such a right simply because Strasbourg has not spoken.
+There are three reasons for this, the first practical, the second a matter of principle and the third the requirement of statute.
+It is to be expected, indeed it is to be hoped, that not all debates about the extent of Convention rights will be resolved by Strasbourg.
+As a matter of practical reality, it is inevitable that many claims to Convention rights will have to be determined by courts at every level in the United Kingdom without the benefit of unequivocal jurisprudence from ECtHR.
+Moreover, as a matter of elementary principle, it is the courts duty to address those issues when they arise, whether or not authoritative guidance from Strasbourg is available.
+The great advantage of the Human Rights Act is that it gives citizens of this country direct access to the rights which the Convention enshrines through their enforcement by the courts of this country.
+It is therefore the duty of this and every court not only to ascertain where the jurisprudence of the Strasbourg court clearly shows that it currently stands but to resolve the question of whether a claim to a Convention right is viable or not, even where the jurisprudence of the Strasbourg court does not disclose a clear current view.
+Finally, section 6 of the Human Rights Act leaves no alternative to courts when called upon to adjudicate on claims made by litigants to a Convention right.
+This section makes it unlawful for a public authority, including a court, to act in a way which is incompatible with a Convention right.
+That statutory obligation, to be effective, must carry with it the requirement that the court determine if the Convention right has the effect claimed for, whether or not Strasbourg has pronounced upon it.
+In this context, it would be particularly unsatisfactory, I believe, if, because of an Ullah type reticence, we should feel constrained not to reach a decision on the arguments advanced by the respondents to these references just because those very arguments are likely to be ventilated on behalf of the applicant in ECtHR in Abdurahman v United Kingdom application no 40351/09 and we cannot say how Strasbourg will react to them.
+If the much vaunted dialogue between national courts and Strasbourg is to mean anything, we should surely not feel inhibited from saying what we believe Strasbourg ought to find in relation to those arguments.
+Better that than shelter behind the fact that Strasbourg has so far not spoken and use it as a pretext for refusing to give effect to a right that is otherwise undeniable.
+I consider that not only is it open to this court to address and deal with those arguments on their merits, it is our duty to do so.
+The nature of the right under article 6(1) taken in conjunction with article 6(3)(c)
+The true nature of the right under article 6(1), taken in conjunction with article 6(3) (c), can only be ascertained by reference to its underlying purpose.
+What is its purpose? The respondents argue that its purpose is that when a person becomes a suspect, because of the significant change in his status that this entails; because of the potential that then arises for him to incriminate himself or to deal with questions in a way that would create disadvantage for him on a subsequent trial; and because of the importance of these considerations in terms of his liability to conviction, the essential protection that professional advice can provide must be available to him.
+The right, it is argued, should not be viewed solely as a measure for the protection of the individuals interests.
+It is in the interests of society as a whole that those whose guilt or innocence may be determined by reference to admissions that they have made in moments of vulnerability are sufficiently protected so as to allow confidence to be reposed in the reliability of those confessions.
+For reasons that I will develop, I consider that these arguments should prevail.
+If it has taught us nothing else, recent experience of miscarriage of justice cases has surely alerted us to the potentially decisive importance of evidence about suspects reactions to police questioning, whether it is in what they have said or in what they have failed to say, and to the real risk that convictions based on admissions made without the benefit of legal advice may prove, in the final result, to be wholly unsafe.
+The role that a lawyer plays when the suspect is participating in what may be a pivotal moment in the process that ultimately determines his or her guilt is critical.
+Thus understood, the animation of the right under article 6(1) cannot be determined in terms of geography.
+It does not matter, surely, whether someone is over the threshold of a police station door or just outside it when the critical questions are asked and answered.
+And it likewise does not matter whether, at the precise moment that a question is posed, the suspect can be said to be technically in the custody of the police or not.
+If that were so, the answer to a question which proved to be the sole basis for his conviction would be efficacious to secure that result if posed an instant after he was taken into custody but not so an instant before.
+That seems to me to be a situation too ludicrous to contemplate, much less countenance.
+Two supremely relevant, so far as these appeals are concerned, themes run through the jurisprudence of Strasbourg in this area.
+The first is that, in assessing whether a trial is fair, regard must be had to the entirety of the proceedings including the questioning of the suspect before trial see, for instance, Imbrioscia v Switzerland (1993) 17 E.H.R.R. 441, Murray v United Kingdom (1996) 22 E.H.R.R. 29; Averill v United Kingdom (2000) 31 E.H.R.R. 839; Magee v United Kingdom (2000) 31 E.H.R.R. 822; and Brennan v United Kingdom (2001) 34 E.H.R.R. 507.
+The second theme is that, although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial Poitrimol v France (1993) 18 E.H.R.R. 130 and Demebukov v Bulgaria (Application No 68020/01) (unreported) given 28 February 2008 at para 50.
+Taken, as they must be, in combination, these features of a fair trial lead inexorably to the conclusion that where an aspect of the proceedings which may be crucial to their outcome is taking place, effective defence by a lawyer is indispensable.
+When one recognises, as Strasbourg jurisprudence has recognised for quite some time, that the entirety of the trial includes that which has gone before the actual proceedings in court, if what has gone before is going to have a determinative influence on the result of the proceedings, it becomes easy to understand why a lawyer is required at the earlier stage.
+There is no warrant for the belief that vulnerability descends at the moment that one is taken into custody and that it is absent until that vital moment.
+The selection of that moment as the first occasion on which legal representation becomes necessary is not only arbitrary, it is illogical.
+The need to have a lawyer is not to be determined on a geographical or temporal basis but according to the significance of what is taking place when the later to be relied on admissions are made.
+This much, I believe, is clear from paras 54 and 55 of the judgment in Salduz v Turkey (2008) 49 EHRR 421.
+It is worth setting out para 54 to examine its constituent parts and in order to draw together the various strands of guidance that it contains.
+This is what the court said in that para: the Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the tria1.
+At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence.
+In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself.
+This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused.
+Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self incrimination.
+In this connection, the Court also notes the recommendations of the CPT [European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment], in which the committee repeatedly stated that the right of a detainee to have access to legal advice is a fundamental safeguard against ill treatment.
+Any exception to the enjoyment of this right should be clearly circumscribed and its application strictly limited in time.
+These principles are particularly called for in the case of serious charges, for it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies.
+The first question that arises from this passage concerns the meaning of the investigation stage.
+That stage is stated to be particularly important for two related reasons.
+The first is that evidence obtained at that stage determines the framework in which the offence with which the defendant is charged will be considered at trial.
+In other words, evidence obtained during the investigation stage can significantly influence the outcome of the proceedings and on that account it requires close attention as to its reliability.
+The second reason is that at that very time (viz when evidence capable of influencing the trials outcome is being obtained) the accused finds himself in a vulnerable position.
+It may seem trite to ask why he should be vulnerable at that time but the answer, it seems to me, is both plain and significant.
+He is vulnerable because at this investigation stage, evidence which may be instrumental in securing a finding of guilt against him is being obtained and collated.
+The way that he reacts during the collection of that evidence may prove to be of critical importance in his subsequent trial.
+His vulnerability may be enhanced, moreover, because increasingly complex legislation permits the evidence to be obtained and used in ways that were not previously possible.
+I return then to the anterior question.
+What is meant by the investigation stage? It must surely include any point or juncture at which evidence which is potentially inculpatory of an accused is being obtained.
+This is of especial importance when the investigation stage provides the setting for a statement by the accused person that might incriminate him.
+ECtHR recognised in para 54 of Salduz that an incriminating statement might occur at an early stage of the investigation and it was for this reason that early access to a lawyer was considered to be necessary.
+That early access is expressly required so that the very essence of the right not to incriminate oneself is not destroyed.
+But extinction of the essence of the right, it seems to me, is precisely what may happen if statements tending to incriminate, made without the benefit of legal advice, are admitted in evidence against their maker on his or her trial.
+And that conclusion reinforces my view that it is not the place at which admissions are made nor whether the individual making the statements has been detained that is important.
+What is important is the use to which such statements may subsequently be put.
+The same message is provided by the opening words of para 55 of Salduz: Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently practical and effective" article 6(1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right.
+Once more, it is noteworthy that the court here does not refer to the place at which the first interrogation takes place nor whether the person who is answering questions has been detained.
+It is from the moment of the first interrogation that the need for the presence of a lawyer is deemed to be required and that point is chosen because that is precisely when self incriminating statements may begin to be made.
+In this connection I should say that I do not construe the judgments of Judge Bratza and Judge Zagrebelsky in Salduz as seeking to link the need for a lawyers presence inextricably with the moment that a suspect is taken into custody.
+At O I2 Judge Bratza said: At para 55 of the judgment, the Court states as a general principle that in order for the right to a fair trial to remain sufficiently, practical and effective, article 6 requires that, as a rule, access to a lawyer should be provided, as from the first interrogation of a suspect by the police.
+This principle is consistent with the Court's earlier case law and is clearly sufficient to enable the Court to reach a finding of a violation of article 6 on the facts of the present case.
+However, I share the doubts of Judge Zagrebelsky as to whether in appearing to hold that the right of access to a lawyer only arises at the moment of first interrogation, the statement of principle goes far enough.
+Like Judge Zagrebelsky, I consider that the Court should have used the opportunity to state in clear terms that the fairness of criminal proceedings under article 6 requires that, as a rule, a suspect should be granted access to legal advice from the moment he is taken into police custody or pre trial detention.
+It would be regrettable if the impression were to be left by the judgment that no issue could arise under article 6 as long as a suspect was given access to a lawyer at the point when his interrogation began or that article 6 was engaged only where the denial of access affected the fairness of the interrogation of the suspect.
+The denial of access to a lawyer from the outset of the detention of a suspect which, in a particular case, results in prejudice to the rights of the defence may violate article 6 of the Convention whether or not such prejudice stems from the interrogation of the suspect.
+It is immediately obvious from this passage that Judge Bratzas concern was that the judgment of the court did not go far enough.
+It is clear that his assumption was that the first interrogation of a suspect would normally take place after he had been taken into custody.
+He felt that to prescribe that the presence of a lawyer was only then required might not be sufficient.
+Statements could be made or events could occur which might prove incriminating after the suspect was taken into custody but before the first formal interrogation began.
+That was why Judge Bratza suggested that a lawyer was required when the accused was taken into custody.
+But his statement to that effect does not betoken a view that the moment that custody begins should be invested with some special significance.
+On the contrary, it reflects concern that the suspects vulnerability and his need for a lawyer should not be seen as inevitably coincident with the opening of the formal interview.
+Statements made or events occurring before that time are just as likely to require the presence of a lawyer if the fairness of the trial is to be assured.
+The cases decided in Strasbourg post Salduz and discussed by Lord Hope in paras 36 40 of his judgment do not appear to me, with respect, to contribute much to the debate except for the case of Borotyuk v Ukraine (Application no. 33579/04).
+All of the cases concerned suspects who were already in custody when the questioning began.
+Lord Hope has suggested that importance was attached by Strasbourg in some of these cases to the fact that the person was in custody when he was being interrogated.
+I do not so read them.
+It seems to me that the cases are at least as consistent with the view that the important factor in play was that the interrogation was the occasion when inculpatory statements might be made and on that account a lawyers presence was considered an indispensable concomitant of a fair trial.
+In Borotyuk an interesting passage appears at para 79.
+There the court said: The Court emphasises that although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of fair trial (see Poitrimol, cited above, para 34).
+As a rule, access to a lawyer should be provided as from the first questioning of a suspect by the police, unless it can be demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right.
+The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police questioning without access to a lawyer are used to secure a conviction (see Salduz vs Turkey [(2008) 49 EHRR 421], para 55.
+Quite apart from the observation that access to a lawyer was deemed necessary as from the first questioning of a suspect, the emphasis in this passage seems to be on the inevitable prejudice that will occur if questioning takes place at a time and in circumstances where incriminating statements might be made.
+This, as it seems to me, is entirely consonant with the underlying philosophy of article 6(1) taken in conjunction with article 6(3)(c).
+The essential question is: when the questioning is taking place, is the suspect in a position where the advice of a lawyer is essential if a fair trial is to occur.
+If he is liable to incriminate himself at that time, a lawyers presence is required so that he may be fully advised as to how he may or should respond to the interrogation.
+Likewise, if he requires advice as to how he should react to questioning, for example by giving information that may subsequently emerge at the trial, he needs to have proper guidance.
+Remaining silent when a perfectly innocent explanation is available may fatally undermine a subsequently proffered defence.
+I would therefore express the principle, to be derived from a consideration of the mainstream Strasbourg jurisprudence, in this way: where a person becomes a suspect, questions thereafter put to him or her that are capable of producing inculpatory evidence constitute interrogation.
+Before such interrogation may be lawfully undertaken, the suspect must be informed of his or her right to legal representation and if he or she wishes to have a lawyer present, questions must be asked of the suspect, whether or not he or she is in custody, in the presence of a lawyer.
+The Lord Advocate in the present appeal submitted that the touchstone should be the taking into custody of the individual because this marked the start of the coercive atmosphere in which the vulnerability of the suspect was aroused.
+I cannot accept that argument.
+Common experience tells us that a coercive atmosphere can exist independently of custody.
+The subject was also helpfully considered, albeit in a different context, in the Canadian case of R v Grant 2009 SCC 32; [2009] 2 S.C.R. 353.
+In that case the Supreme Court of Canada held that what it described as psychological detention such as to give rise to rights under section 9 of the Canadian Charter of Rights and Freedoms was established where an individual has a legal obligation to comply with a restrictive request or demand, or where a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.
+Although the right under section 9 of the Charter is one that entitles an individual not to be arbitrarily detained or imprisoned, as opposed to the right not to incriminate oneself, the relevance of the decision to the present appeal lies in the courts analysis of when the interaction between a police officer and the person he has stopped and questioned assumes a coercive quality.
+At para 30 of the majority judgment of McLachlin CJ and LeBel, Fish, Abella and Charron JJ it was stated: we find that psychological constraint amounting to detention has been recognized in two situations.
+The first is where the subject is legally required to comply with a direction or demand, as in the case of a roadside breath sample.
+The second is where there is no legal obligation to comply with a restrictive or coercive demand, but a reasonable person in the subject's position would feel so obligated.
+The rationale for this second form of psychological detention was explained by Le Dain J. in [R v Therens [1985] 1 SCR 613, 644] as follows: In my opinion, it is not realistic, as a general rule, to regard compliance with a demand or direction by a police officer as truly voluntary, in the sense that the citizen feels that he or she has the choice to obey or not, even where there is in fact a lack of statutory or common law authority for the demand or direction and therefore an absence of criminal liability for failure to comply with it.
+Most citizens are not aware of the precise legal limits of police authority.
+Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand.
+The element of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary.
+Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist.
+There is no reason to suppose that a person questioned by police while not in detention would not experience the same need to acquiesce in the power of the police to require answers to potentially highly incriminating questions.
+In as much, therefore, as a coercive atmosphere is required in order to stimulate the need for the protection that a lawyers presence brings, I consider that it is just as likely that this will occur outside a police station as within.
+As I have said, the important question is whether the circumstances in which questions are asked are liable to be productive of incriminating answers, not whether those questions are being asked in a police station or whether the suspected person can be said to be in custody.
+Zaichenko v Russia
+This decision needs to be examined because of the possibly discordant note that it strikes in what I consider to be the clear message of what I have described as the mainstream European jurisprudence on the subject.
+The applicant had been stopped by police when driving away from his place of work on 21 February 2001.
+He was asked to account for two cans of diesel that were discovered in his car.
+He replied that he had poured the fuel from the tank of a service vehicle that he drove as an employee into the containers that the police had found in his car.
+He said that he intended to use it for his own personal purposes in other words, he admitted to having stolen it.
+A vehicle inspection record was prepared by a police officer at the scene in which it was stated that the applicant had explained that he had poured out the fuel from the company premises.
+The applicant signed that document.
+He also signed another document entitled explanations in which his statement to the following effect was recorded: Since 1997 I have been employed as a driver by a private company.
+On 21 February 2001 I arrived to my workplace at 9 am.
+During the day I was repairing my service vehicle.
+In the evening I poured out thirty litres of fuel from the tank of my service vehicle.
+I have previously brought the cans, ten and twenty litres each, from home.
+After work, at around 8 pm, I was driving home in my car and was stopped by the police.
+The car was inspected in the presence of the attesting witnesses.
+I poured out the fuel for personal use.
+On 2 March 2001 an official known as an inquirer compiled a report on the events of 21 February 2001.
+It was recorded that the applicant had intentionally stolen thirty litres of diesel from his service vehicle.
+The report was stated to have been based on, among other things, the inspection record compiled by the police at the scene and the applicant's written statement.
+The accusation section of this statement read, At 8 pm on 21 February 2001 [the applicant] . being at work intentionally stole from his service vehicle the diesel in the amount of thirty litres.
+Thereby, he caused to the company pecuniary damage in the amount of 279 roubles.
+The applicant appended his signature to the following certificates that appeared at the foot of the statement: I have been informed of the nature of the accusation, the right to have access to the case file, the right to legal representation, the right to make requests and challenge the inquiring authorities' actions. and I have studied the case file and have read this document.
+I have no requests or motions.
+I do not require legal assistance; this decision is based on reasons unrelated to lack of means.
+I will defend myself at the trial.
+At his trial the applicant retracted the confession and instead advanced a defence that he had purchased the fuel.
+He maintained that evidence of his admissions to police officers when his car was stopped should not have been admitted because he had not been informed of his right against self incrimination.
+At para 19 of ECtHRs judgment it is recorded that the appeal court in Russia had decided that the applicant's allegation of self incrimination had been rightly rejected by the trial court as unfounded.
+At paras 42 and 43 of its judgment, ECtHR dealt with the question of whether the applicant had been charged during the events of 21 February 2001.
+As to that the court said this: 42.
+The Court reiterates that in criminal matters, Article 6 of the Convention comes into play as soon as a person is charged; this may occur on a date prior to the case coming before the trial court, such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when preliminary investigations were opened (see Eckle vs Germany, 15 July 1982, 73, Series A no. 51, and more recently, O'Halloran and Francis vs the United Kingdom [GC], nos. 15809/02 and 25624/02, 35, ECHR 2007. ).
+Charge, for the purposes of Article 6 1, may be defined as the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence, a definition that also corresponds to the test whether the situation of the [person] has been substantially affected (see Shabelnik vs Ukraine, no. 16404/03, 57, 19 February 2009; Deweer vs Belgium, 27 February 1980, 46, Series A no. 35; and Saunders vs the United Kingdom, 17 December 1996, 67 and 74, Reports of Judgments and Decisions 1996 VI).
+Given the context of the road check and the applicant's inability to produce any proof of the diesel purchase at the moment of his questioning by the police, the Court considers that there should have been a suspicion of theft against the applicant at that moment. 43.
+Applying these principles to the facts of the case, the Court notes that the trial court's use made of the admissions made on 21 February 2001, which led to the institution of criminal proceedings against the applicant and then served for convicting him of theft, is at the heart of the applicant's complaints under Article 6 of the Convention (compare Saunders, cited above, 67 and 74; and Allen vs the United Kingdom (dec.), no. 76574/01, 10 September 2002).
+It is also noted that the inspection record itself indicated Article 178 of the RSFSR Code of Criminal Procedure as the legal basis for the inspection (see paragraph 26 above).
+Thus, although the applicant was not accused of any criminal offence on 21 February 2001, the proceedings on that date "substantially affected" his situation.
+The Court accepts that Article 6 of the Convention was engaged in the present case.
+Nor was there any disagreement on this point between the parties.
+The substantial effect which prompted the finding that article 6 was engaged appears to comprise the suspicion which the court felt the police must have had that the applicant had been guilty of theft and the fact that the events that occurred at the roadside check led to his subsequent prosecution and conviction.
+On that basis the same conclusion (that article 6 is engaged) is irresistible in the three cases involved in these references.
+In each of the cases it is clear that, at the time that the relevant admissions were made, the police either did have or should have had a suspicion that the persons to whom they were posing questions were guilty of the offences that were under investigation and that the statements made in answer to those questions were or were likely to be highly incriminating of all three.
+But why in Zaichenko, if article 6 was engaged, was the applicant not entitled to the protection of article 6(3)(c), taken in conjunction with article 6(1)? For an answer to this, one must conduct a probe of the later passages of the judgment which, I should confess in advance, has not led me to an entirely clear understanding of the rationale underlying the courts conclusion on the issue.
+At para 46 the court said this: 46.
+The Court notes at the outset that the applicant only complained that he had not been afforded enough time to contact a lawyer in a nearby town.
+The Court cannot but note that, as confirmed by the applicant's representative in his letter to the European Court dated 26 July 2002, both on 21 February and 2 March 2001 the applicant chose not to exercise his right to legal representation with the hope that the court would give him a fair trial even without counsel.
+It is difficult to be sure that, in using the phrase, the court cannot but note, the judgment at this point was indicating that, because the applicant had elected not to have legal representation, this was a basis on which it could be concluded that there had not been a violation of article 6(3)(c).
+Observations that appear later in the judgment would tend to support that view, however.
+In the first instance, the para following (para 47) opens with the word moreover which suggests that the decision of the applicant not to seek legal representation was, at least, one of a number of reasons for the finding that article 6(3)(c) had not been breached.
+Secondly, at para 50 of the judgment, the court refers to the applicants election not to seek legal assistance either on 21 February or on 2 March 2001 as a waiver of his right to legal assistance.
+Some of the other reasons for finding that there had not been a violation of article 6(3)(c) appear in para 47: 47.
+Moreover, the Court observes that the present case is different from previous cases concerning the right to legal assistance in pre trial proceedings because the applicant was not formally arrested or interrogated in police custody.
+He was stopped for a road check.
+This check and the applicant's self incriminating statements were both carried out and made in public in the presence of two attesting witnesses.
+It is true that the trial record contains a statement by the applicant suggesting that the writing down of the inspection record and/or his subsequent statement were started on the spot but were completed in the village of Birofeld.
+Nevertheless, the Court concludes on the basis of the materials in the case file that the relevant events, namely the drawing of the inspection record and the taking of the applicant's explanation, were carried out in a direct sequence of events.
+The distinction between Zaichenkos case and earlier decisions that is highlighted here viz that the applicant had not been arrested or interrogated while in police custody is not expressly stated to be a reason that alone would warrant a finding that there had not been a violation of article 6(3)(c) taken in conjunction with article 6(1).
+It seems to me impossible to say, on the basis of the statements in this paragraph, that ECtHR has concluded that formal arrest and interrogation in custody are essential prerequisites to the invocation of the right.
+Rather, it appears that the court treated the cumulative effect of factors that were peculiar to this particular case as the basis for the finding that there had not been a violation of article 6(3)(c).
+These factors can be enumerated as follows: (1) the applicant had waived his right to a lawyer and had explicitly stated that he did not want a lawyer to represent him despite having been told on 2 March 2001 that he was entitled to legal representation; (2) he had not been formally arrested or interrogated in police custody; (3) the initial questioning of the applicant took place at a road check and not in any formal setting; (4) the applicant was questioned in a public place with other witnesses present who could attest to a lack of coercion on the part of the police; and (5) the checking of the applicants car and his questioning as to the source of the diesel all occurred as part of a seamless process.
+I do not believe that any one of these factors can be elevated to a position of pre eminence nor does it appear to me that it can be said with confidence that any single factor, taken in isolation, would be sufficient to support the finding that there had not been a breach of article 6(3)(c).
+The succeeding paragraphs in the judgment repeat the matters dealt with in paras 46 and 47 or expand on them to some extent.
+It is not necessary to consider these in any detail but I should mention para 48, if only to say that I have had a little difficulty in following the reasoning that it contains.
+It reads: Although the applicant in the present case was not free to leave, the Court considers that the circumstances of the case as presented by the parties, and established by the Court, disclose no significant curtailment of the applicant's freedom of action, which could be sufficient for activating a requirement for legal assistance already at this stage of the proceedings.
+It is not immediately clear why someone who was not free to leave the scene could be said not to have had any significant curtailment of his freedom of action.
+Be that as it may, it appears to be the case that if the court had found that there had been a significant curtailment of the applicants freedom of action, it would have regarded this as a sufficient basis for a finding of a violation of article 6(3)(c).
+What would constitute such a curtailment of freedom of action has not been made clear, however.
+Altogether, it is not easy to distil any obvious principle from this paragraph and I would be reluctant to ascribe to it any significance beyond that relevant to the circumstances of the case of Zaichenko itself.
+Although ECtHR concluded that Mr Zaichenko had waived his right to legal assistance, it decided that there had not been a waiver of his right not to incriminate himself.
+At para 52 the court held that it was incumbent on the police to inform the applicant of the privilege against self incrimination and the right to remain silent.
+Their failure to do so at the roadside check before putting questions to him constituted a violation of article 6(1), therefore.
+In a partly dissenting opinion, Judge Spielmann (who, as Lord Hope pointed out in para 46 of his judgment, was a member of the Grand Chamber in Salduz) addressed forthrightly the question of when the right to legal representation arose and, relating it directly to the decision in Salduz, came down firmly in favour of what I believe to be the logical position, namely, that it began when police questioning started.
+In para 3 of his opinion, Judge Spielmann said: 3.
+In Salduz vs Turkey the Court held that as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police (see Salduz vs Turkey [GC], no. 36391/02, 55, ECHR 2008 . ).
+The Court also held that the lack of legal assistance during a suspect's interrogation would constitute a restriction of his defence rights and that these rights would in principle be irretrievably prejudiced when incriminating statements, made during police interrogation without access to a lawyer, were used for a conviction.
+The Court took a similar approach in the equally important judgment in Panovits (Panovits vs Cyprus, no. 4268/04, 66 and 70 73, 11 December 2008). (original emphasis)
+Judge Spielmann also questioned the reasoning of the majority that is contained in para 48 of the courts judgment.
+At para 6 he said: 6.
+Contrary to what is said in para 48 of the judgment, I cannot agree that the circumstances of the case disclose no significant curtailment of the applicant's freedom of action.
+I am of the opinion that those circumstances were sufficient to activate a requirement for legal assistance.
+I do not understand Judge Spielmanns dissent necessarily to indicate that there was a divergence of views between him and the majority about the nature of the principle at stake.
+The principle which I believe can be said to be common to both is that when a suspect is interrogated by police he is entitled to legal assistance.
+Where Judge Spielmann parted company with the majority was in its conclusion as to whether the principle applied.
+Because of the accumulation of factors that the court had identified (see para 158 above) and because it concluded that there had not been a curtailment of Mr Zaichenkos freedom of action, it held that the principle did not apply.
+Judge Spielmann, by contrast, did not attach the weight to the factors that the majority had considered militated against a finding of violation of article 6(3)(c) and he disagreed (in my view, quite properly) with the suggestion that someone who was not free to leave the scene nevertheless had not suffered any curtailment of his freedom of action.
+Miranda v Arizona
+As Lord Hope has said in para 52, curtailment of freedom of action carries echoes from Miranda v Arizona 384 US 436 (1966).
+And as Lord Hope suggests, it may well be that Miranda will influence the thinking of Strasbourg, it having featured in a number of prominent dissenting judgments in that court already.
+But I question whether this will lead to the adoption of the custodial approach to the question as to when access to a lawyer is required.
+Curtailment of an individuals freedom of action can arise even when he has not been taken into custody.
+The important question must surely be whether the suspect feels constrained to answer the questions posed to him by the police officer.
+As the Grant case illustrates, this can arise either because of the manner in which the police officer manages the exchange with the suspect or because of the latters belief that he has no option but to answer the questions put to him.
+Quite apart from these considerations, however, I believe that one must be careful about making assumptions about the Miranda experience or believing that it can be readily transplanted into European jurisprudence in any wholesale way.
+The implications of that decision must be considered in the context of police practice in the United States of America.
+Nothing that has been put before this court establishes that it is common practice in America to ask incriminating questions of persons suspected of a crime other than in custody.
+Indeed, it is my understanding that as soon as a person is identified as a suspect, police are trained that they should not ask that person any questions until he or she has been given the Miranda warnings.
+Custody was identified in Miranda as one of the features necessary to activate the need for legal representation but custody has been held to mean either that the suspect was under arrest or that his freedom of movement was restrained to an extent associated with a formal arrest Stansbury vs California, 511 US 318 (1994); New York vs Quarles, 467 U.S. 649, 655 (1984).
+So it is clear that the rule that custody is required before entitlement to legal representation arises is not inflexible or static and that its underlying rationale is closely associated with the question whether the person questioned feels under constraint to respond.
+Hampering police investigation
+One of the principal practical arguments advanced against the requirement that a suspect be informed that he is entitled to legal representation before incriminating questions are put to him is that this will hamper police investigations.
+The argument is a venerable one.
+It has been deployed in reaction to various proposals for safeguards intended to protect suspects rights including the right to have a solicitor present during interviews and the audio recording or the videotaping of interviews.
+There is no evidence that the introduction of those measures brought about any widespread impediment to police investigations nor is there, in my view, any convincing evidence that this would be the result of recognising the right of a suspect to be informed that he or she is entitled to legal representation before being required to provide potentially incriminating answers to police questioning.
+As the respondents have pointed out, in the final analysis, these cases are about the admissibility of evidence.
+There is no legal prohibition on police asking questions of a suspect that may produce incriminating answers.
+The legal consequence of doing so without first informing the suspect of his or her right to be legally represented will be, in my opinion, that the answers produced will be inadmissible in evidence unless compelling reasons such as were discussed in para 55 of Salduz exceptionally justify denial of access to a lawyer.
+One can anticipate, therefore, that police may decide in appropriate circumstances to proceed with questions in order to further the investigation but have to accept that if they are capable of producing incriminating answers from someone who is a suspect, the replies will be inadmissible.
+A balance will always have to be struck between unfettered police investigatory powers and the complete safeguarding of suspects rights.
+The history of criminal jurisprudence shows how that balance has been struck in different ways and at different times, reflecting, no doubt, changing attitudes as to what properly reflects contemporary standards.
+It is my belief that the proper balance to strike for our times is the one that I have suggested in para 146 above.
+Conclusions
+For the reasons given in para 153 above, I consider that article 6 of ECHR was engaged in each of the respondents cases at the time that the relevant questions were asked.
+I have no doubt that when they were asked those questions each of them was suspected of having committed an offence.
+I agree with Lord Hope that the administration of a caution is not necessarily determinative of this issue but, in the particular circumstances of these cases, I do not believe that any other conclusion is possible.
+The second and third questions that were put to the respondent, Ambrose, were clearly capable of producing incriminating responses.
+In fact they did so and it is evident that the answers have been relied on in order to establish his guilt, (although that might well have been possible simply by proving that he was in the car and in possession of the keys).
+In these circumstances, I am of the view that he had a right under article 6(3)(c) taken in conjunction with article 6(1) of ECHR to be informed, after his reply to the first question, that he was entitled to legal representation before answering further questions, and that, absent such a warning, the incriminating answers given by him to the second and third questions were not admissible.
+The questions put to the respondent who has been referred to as M, apart from the first question, were also clearly capable of producing incriminatory replies although whether they would in fact be probative of guilt would be a matter for trial, if indeed the answers were held to be admissible.
+Since they clearly had the capacity of producing inculpatory responses, however, I consider that the questions put to M at his home, apart from the first question, are inadmissible.
+In the case of the respondent referred to as G, for the reasons given by Lord Hope (with which I agree), it is indisputable that, at the time the impugned questions were put to him, he was in custody and, whatever view one takes of the effect of the European jurisprudence, the incriminating answers that he gave are inadmissible.
+But, for the same reasons that I have given in the cases of Ambrose and M, I would have held that they were inadmissible, regardless of whether G was in custody at the time that the answers were given.
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+On 18 January 2005, at about 2.20 am, a tragic incident occurred on the A282 north of the Dartford River Crossing.
+The A282 is a six lane carriageway which links the Dartford Crossing bridge and tunnel with the M25 motorway.
+The respondent, Mr Gareth Jones, was driving a Highways Agency gritter along the nearside carriageway.
+Slightly ahead of him, in the central lane of the north bound 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.
+On 17 May 2007, 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).
+On 6 March 2008 he was informed by the CICA that it was unable to make an award under the Scheme.
+The reason that was given for this decision was that the Scheme provided that compensation was payable only if the claimant was the victim of a criminal injury.
+The CICA had obtained details of the incident from the police and the doctors who provided treatment, but it had been unable to pinpoint a crime of violence of which Mr Jones was a victim which would have enabled an award to be made.
+Mr Jones then appealed to the First tier Tribunal (the FTT).
+Suicide is no longer a criminal act.
+So it was contended on his behalf that Mr Hughes had committed two criminal offences: (i) intentionally and unlawfully interfering with a motor vehicle, contrary to section 22A of the Road Traffic Act 1988 (as inserted by section 6 of the Road Traffic Act 1991), and (ii) inflicting grievous bodily harm, contrary to section 20 of the Offences against the Person Act 1861.
+On 8 May 2009 the FTT held that it was not open to it to make a full or a reduced award.
+It was not satisfied that an offence under section 22A had been committed.
+Nor was it satisfied that any such offence would amount to a crime of violence within the meaning of the Scheme rules: para 39.
+That conclusion is no longer being challenged, and it is unnecessary to say anything more about it.
+But the FTT also rejected the claim based on section 20 of the 1861 Act, as 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: para 38.
+Mr Jones applied to the Upper Tribunal (Administrative Appeals Chamber) for relief by way of judicial review of the FTTs decision under section 15 of the Tribunals, Courts and Enforcement Act 2007.
+On 11 June 2010 the Upper Tribunal (Nicol J, Judge Sycamore and Upper Tribunal Judge Mesher) dismissed the application: [2010] UKUT 199, [2011] RTR 55.
+It accepted that the mens rea for an offence under section 20 of the 1861 Act was that the defendant either intended or foresaw that his act would cause harm to some person: R v Parmenter [1992] 1 AC 699, 752 per Lord Ackner.
+It noted that the FTT had held that there was no evidence that Mr Hughes deliberately intended to harm the users of the road.
+This left the question whether he was reckless, in the sense that he actually foresaw that his actions might cause physical harm of whatever degree to other road users: para 37.
+It held that the FTT had properly directed itself to the question it had to consider, and that its finding that Mr Hughes was not reckless was one to which a rational tribunal could have come: para 39.
+The Upper Tribunal refused permission to appeal to the Court of Appeal, but on 25 August 2010 Mr Jones sought and was granted permission to appeal to the Court of Appeal under section 13 of the 2007 Act.
+On 12 April 2011 the Court of Appeal (Mummery, Rix and Patten LJJ) [2012] QB 345 allowed the appeal and granted judicial review of the FTTs decision.
+It remitted the matter to a differently constituted FTT to reconsider the issue of recklessness in the light of the reasons given in the courts judgment.
+The CICA now appeals against that decision to this court.
+The Scheme
+The Scheme was made under section 1 of the Criminal Injuries Compensation Act 1995.
+That Act was enacted to establish a scheme for compensation for criminal injuries in place of the non statutory system which had been in existence since 1964 following the publication of the White Paper Compensation for Victims of Crimes of Violence (1964) (Cmnd 2323).
+In para 13 of the White Paper it was acknowledged that personal injury might arise from a great variety of offences and it refrained from specifying a comprehensive list of crimes whose victims might apply for compensation.
+The 1964 Scheme did not set out a list of that kind either.
+But revisions to the 1964 Scheme in 1969 introduced into it the words crime of violence for the first time.
+As amended, the 1964 Scheme provided for applications for compensation in circumstances where the applicant had sustained personal injury directly attributable to a crime of violence (including arson and poisoning).
+The same wording was used when a new scheme was introduced in 1979.
+That scheme has now been replaced by the Criminal Injuries Compensation Scheme which was introduced by the CICA on 27 November 2012.
+The first statutory scheme was made in 1996.
+It was followed by the Scheme which was made on 1 April 2001 and is the relevant scheme for the purposes of this case: see para 3, above.
+Paragraph 6 of the Scheme provided that compensation might be paid in accordance with it to an applicant who had sustained a criminal injury on or after 1 August 1964.
+In paragraph 8 it was stated: For the purposes of this Scheme, criminal injury means one or more personal injuries as described in the following paragraph, being an injury sustained in Great Britain and directly attributable to: (a) a crime of violence (including arson, fire raising or an act of poisoning); or (b) an offence of trespass on a railway; or (c) the apprehension or attempted apprehension of an offender or a suspected offender, the prevention or attempted prevention of an offence, or the giving of help to any constable who is engaged in any such activity.
+The expression personal injury is stated in paragraph 9 to include physical injury, mental injury and disease.
+Section 20 of the 1861 Act
+inflicting bodily injury, with or without weapon.
+It is in these terms: Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanour, and Section 20 of the Offences against the Person Act 1861 is entitled being convicted thereof shall be liable to be kept in penal servitude.
+In R v Mowatt [1968] 1 QB 421, 425 Diplock LJ observed that the expression unlawfully and maliciously was a fashionable phrase of the Parliamentary draftsman in 1861.
+It is plain that it is not to be taken to have been used here in the old, rather vague, sense of wickedness.
+A more precise appreciation as to the test it lays down is required.
+In R v Cunningham [1957] 2 QB 396 the Court of Criminal Appeal approved of the principle which had been propounded by Professor C S Kenny in the first edition of his Outlines of Criminal Law (1902) and had been repeated in the 16th edition (1952), p 186, that any statutory definition of a crime must be taken to require either (1) an actual intention to do the particular kind of harm that in fact was done, or (2) recklessness as to whether such harm should occur or not (in other words, that the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).
+That formulation was disapproved in part in R v Mowatt.
+Diplock LJ said at p 426 that the word maliciously does import on the part of the person who unlawfully inflicts the wound or other grievous bodily harm an awareness that his act may have the consequence of causing some physical harm to some other person.
+But it was unnecessary that he should have foreseen that his unlawful act might cause physical harm of the gravity described in the section: It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result.
+His description of the principle was approved and applied by the House of Lords in R v Savage; DPP v Parmenter [1992] 1 AC 699: see Lord Ackner at p 752.
+Mustill LJ said in the Court of Appeal in that case at p 706 that the judgment in R v Mowatt laid down two propositions, one positive and one negative: The positive proposition was that to found a conviction under section 20 it must be proved that the defendant actually foresaw that physical harm to some other person would be the consequence of his act.
+This is subject to the negative qualification, that the defendant need not actually have foreseen that the harm would be as grave as that which in the event occurred.
+It was pointed out that the words should have foreseen in Mowatt were intended to bear the same meaning as did foresee or simply foresaw.
+Crime of violence
+Various attempts have been made to define what is meant by the phrase a crime of violence for the purposes of the schemes for compensation for criminal injury.
+Different views were expressed in R v Criminal Injuries Compensation Board, Ex p Clowes [1977] 1 WLR 1353.
+Eveleigh J said at p 1359 that it referred to that kind of deliberate criminal activity in which anyone would say that the probability of injury was obvious.
+Wien J said at p 1362 that it meant some crime which as applied to the facts of a case involved the possibility of violence to another person.
+Lord Widgery CJ said at p 1364 that it was a crime which was accompanied by or concerned with violence.
+He described counsel for the boards submission that a crime of violence should mean a crime of which violence is an essential ingredient as a very neat and tidy package in which to put the problem.
+In R v Criminal Injuries Compensation Board, Ex p Webb [1986] QB 184 the Divisional Court (Watkins LJ, Lloyd and Nolan JJ) preferred Lord Widgerys approach.
+Having asked itself at p 193 why these ordinary English words should not be given their ordinary English meaning, it endorsed at p 195 a submission by counsel for the board which was similar to that made by counsel for the board in Clowes: A crime of violence is, he submits, one where the definition of the crime itself involves either direct infliction of force on the victim, or at least a hostile act directed towards the victim or class of victims.
+We think that this comes near enough to the ordinary meaning of the words as generally understood.
+That was a case where the board had rejected applications by four train drivers who suffered from anxiety and depression after their trains struck and killed four people, three of whom had deliberately committed suicide.
+Their applications were rejected because the board had concluded that their injuries did not result from a crime of violence within the meaning of the scheme.
+The Divisional Court held that the board had been right to refuse the applications.
+An appeal against its decision was dismissed by the Court of Appeal (Lawton and Stephen Brown LJJ, Sir John Megaw): [1987] QB 74.
+But, differing from the submission in Clowes which was endorsed by the Divisional Court, Lawton LJ said at p 79 that what mattered was the nature of the crime, not its likely consequences: It is for the board to decide whether unlawful conduct, because of its nature, not its consequence, amounts to a crime of violence.
+He added this further guidance as to the approach that should be adopted: Most crimes of violence will involve the infliction or threat of force, but some may not.
+I do not think it prudent to attempt a definition of words of ordinary usage in English which the board, as a fact finding body, have to apply to the case before them.
+They will recognise a crime of violence when they hear about it, even though as a matter of semantics it may be difficult to produce a definition which is not too narrow or so wide as to produce absurd consequences Subsequent to that decision provision was made in the 1995 Scheme for compensation to be paid in respect of injuries directly attributable to an offence of trespass on the railway.
+The same point, that the board had to look at the nature of the crime and not at its results, was made by Lord Macfadyen in C, Petitioner 1999 SC 551, where he dismissed a petition for judicial review of the boards decision to refuse compensation for personal injury attributable to incidents of indecent exposure.
+At p 557 he said that there was a valid distinction between the criminal act and its consequences: The question whether a criminal act constitutes a crime of violence is to be answered primarily by looking at what was done rather than at the consequences of what was done.
+As Lawton LJ pointed out in Webb, Most crimes of violence will involve the infliction or threat of force but some may not.
+It may be that there are cases in which examination of the actual or probable consequences of the criminal act will cast light on its nature.
+But it is for the light that they cast on the nature of the criminal act rather than for their own sake that the consequences may be relevant.
+In R (August) v Criminal Injuries Compensation Appeals Panel [2001] QB 774 the Court of Appeal (Pill and Buxton LJJ and Sir Anthony Evans) also followed what Lawton LJ said in Webb.
+Buxton LJ said in para 19 that it was the leading authority on the construction of crime of violence, and that the court had not been shown any material derogating from the guidance given in that case.
+Nor have we, and I too would endorse the way Lawton LJ described the approach that should be taken.
+In August, para 21, Buxton LJ said that he accepted counsels submission that the issue for the panel of whether a crime of violence has taken place is a jury question.
+It would, I think, be more accurate to say that it is for the tribunal which decides the case to consider whether the words a crime of violence do or do not apply to the facts which have been proved.
+Built into that phrase, 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.
+The second is whether, having regard to the nature of the criminal act, the offence that was committed was a crime of violence.
+I agree with Lord Carnwath for all the reasons he gives that it is primarily for the tribunals, not the appellate courts, to develop a consistent approach to these issues, 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 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.
+The question whether a criminal offence has been committed is a question 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 question whether the nature of the criminal act amounted to a crime of violence may or may not raise an issue of fact for the tribunal to determine.
+This will depend on what the law requires for proof of the offence.
+For example, some of the common law crimes known to the law of Scotland are quite loosely defined.
+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 admit of only one answer.
+They 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 of the 1861 Act.
+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 frightening or threatening someone so that they run into the road and are hit by a car, for example: see also Reg v Martin (1881) 8 QBD 54, where the accused by unlawful conduct caused panic in the course of which a number of people were injured: R v Criminal Injuries Compensation Board, Ex p Webb [1987] QB 74, 79 per Lawton LJ.
+The crime that section 20 defines will always amount to a crime of violence for the purposes of the scheme for compensation for criminal injury.
+The decision of the FTT
+The FTT heard oral evidence from PC Sexton, a traffic investigation officer with Essex Police, who had examined the work records for Mr Nash and Mr Jones and the tachographs recording the speed of both vehicles.
+It also read a witness statement by Mr Nash and reports by PC Sexton and PC Thurwell, an authorised accident investigator with Essex Police.
+But it had to face the fact that there was no evidence as to the state of mind of Mr Hughes.
+It found that in all probability he ran into the road intending to commit suicide.
+But there was no evidence that he deliberately intended to harm the users of the road: para 35.
+In its view his act in throwing himself in front of the articulated lorry was not a hostile act directed towards a person who suffered injury as a result: para 37.
+The central part of the FTTs reasoning is set out in para 38: The tribunal accepted the evidence of PC Sexton that probably Mr Hughes primary aim was to be certain of causing his own death and that in his experience it was very unusual for a suicide in this manner to cause such extensive personal injuries and damage to vehicles.
+Mr Hughes may have been careless of the injuries that may have been caused to third parties by his actions.
+However the tribunal were 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 when he ran out into the dual carriageway, such as to bring his case within section 20 of the 1861 Act.
+The reasoning in this paragraph is rather compressed.
+But it is reasonably clear from the last sentence that the FTT were not satisfied that Mr Hughes actually foresaw that his behaviour might cause physical harm to others.
+So it was not persuaded that he had the necessary mens rea of recklessness to bring his actions within a section 20 offence.
+The Upper Tribunal made it clear in its judgment that the FTTs reasoning should be read in this way.
+It concluded that the FTTs finding that Mr Jones had not established that Mr Hughes was reckless was one to which a rational tribunal could have come and that it was not its function as an appellate body to substitute its own opinion of the facts even if it had been different from that of the tribunal: para 39.
+Fairly read, therefore, 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.
+The judgment of the Court of Appeal
+The judgment of the Court of Appeal was delivered by Patten LJ.
+He accepted that in order to succeed in his application Mr Jones had to show that the FTT erred in law in reaching the decision under review: para 17.
+He noted that it was common ground that Mr Hughes conduct included the actus reus of a section 20 offence.
+He said that the issues that the court had to consider were therefore whether the FTTs conclusion that the necessary mens rea of recklessness had not been established was a permissible conclusion on the evidence, and whether it was right in its view that Mr Hughes had not committed a crime of violence within the meaning of the Scheme: para 21.
+In para 24 he acknowledged that the questions whether a criminal offence has been committed and whether the applicants injuries are directly attributable to that offence are undoubtedly questions of fact for the CICA or the FTT: They are required to weigh up the evidence and decide whether it supports a finding that a relevant criminal offence has been committed.
+As part of this process, they have to decide what primary facts are established and what inferences it is permissible to draw from those facts.
+But in this case I do not accept that the determination as to whether a section 20 offence is a crime of violence within the Scheme rules is anything but a question of law which can only admit of one answer.
+The wording of the last sentence of para 24 reveals what Patten LJ saw as the issue of law in the appeal.
+But it contains a flaw in his approach to what the FTT had decided in this case which affects the entire judgment from this point on.
+He seems to have assumed that the FTT had decided the case against Mr Jones on the ground that Mr Hughes had not committed a crime of violence within the meaning of the Scheme.
+In paras 25 and 26 he said that a section 20 offence involves the infliction of serious bodily harm by conduct which the accused himself foresees will cause some harm to the victim or another person, and added that most reasonable people faced with those facts would conclude that this was a crime of violence.
+In para 28 he rejected what he took to be the view of the FTT set out in para 37 that Mr Hughes actions in throwing himself in front of the lorry could not amount to a crime of violence.
+What the FTT actually said in that paragraph was that, having examined the nature of the act rather than its consequences, in its view Mr Hughes act was not a hostile act directed towards a person who suffered injury as a result.
+This was a conclusion of fact which was open to the FTT to reach.
+In paras 30 32 Patten LJ said that the FTT were clearly much influenced by
+the evidence of PC Sexton, who had expressed the view that Mr Hughes probably intended to kill himself rather than to cause an accident, and that it accepted it as supporting the view that it could not be satisfied that Mr Hughes either intended to cause harm or was reckless in that regard.
+The difficulty about this was that PC Sexton was not qualified to provide any expert evidence as to whether a person intent on suicide blanks out the possibility of harm to others by his actions.
+The FTT should have considered whether, on the balance of probabilities, it was likely that some harm was foreseen without attributing any evidential weight to the views of the officer.
+It was highly improbable that anyone who runs into the path of traffic on a busy motorway will not at the very least foresee the possibility of an accident and, as a consequence, harm being caused to other road users.
+The FTT had not considered the possibility of an accident and had assumed in para 35 of its decision that an intention to commit suicide was necessarily inconsistent with a deliberate intention to commit harm.
+From this Patten LJ concluded in para 34 of his judgment that the FTT had applied too narrow a test, as a fact finding exercise as to whether there was recklessness needed to be differently focussed.
+In para 35 he said that the FTTs decision involved an error of law both in terms of the directions given on the test to be applied and in relation to its finding that there was no evidence from which foresight of some harm on the part of Mr Hughes could be inferred.
+As to the second point, what the FTT actually said in para 38 (see para 20, above) was that they were 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.
+This, as the Upper Tribunal said in para 39 of its decision, was a finding to which a rational tribunal could have come.
+It was a finding of fact which was not open to review by the Upper Tribunal or by the Court of Appeal.
+Discussion
+The Court of Appeal 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, attributing to it things that it did not, in so many words, actually say.
+It is well established, as an aspect of tribunal law and practice, that judicial restraint should be exercised when the reasons that a tribunal gives for its decision are being examined.
+The appellate court should not assume too readily that the tribunal misdirected itself just because not every step in its reasoning is fully set out in it.
+It is true that the FTT said in para 38 that it accepted the evidence of PC Sexton.
+But the parts of his evidence referred to were elicited from him in cross examination by counsel who was then appearing for Mr Jones.
+And PC Sextons comment that in his experience it was very unusual for a suicide such as this to cause such extensive personal injuries and damage to vehicles can hardly be said to have been outside his expertise.
+There are signs too that the Court of Appeal 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.
+Taking its judgment overall, it seems to me that the Court of Appeal failed to identify a flaw in the reasoning of the FTT which could be said to amount to an error of law.
+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.
+It did not go on to consider whether he had committed a crime of violence within the meaning of the Scheme because, having concluded that no crime was committed, it did not have to.
+It is a curious feature of this appeal that the issues which the court has been asked to consider assume that the FTT did indeed hold that a section 20 offence had been committed.
+They are directed to the question whether an applicant who has suffered injury directly attributable to an offence under section 20 is either necessarily or, in the circumstances such as those of the present case could be, a victim of a crime of violence.
+For the reasons mentioned in para 18, 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.
+Conclusion
+I do not think that the Court of Appeal has been able to demonstrate that it
+was entitled to interfere with the FTTs decision.
+I would therefore allow the appeal and restore the decision of the FTT which was that, 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.
+LORD CARNWATH
+I agree that this appeal should be allowed for the reasons given by Lord Hope.
+I add a brief comment on the course of the proceedings, having regard also to the new framework established under the Tribunals Courts and Enforcement Act 2007.
+Although the general approach under the 2007 Act was to provide a right of appeal on points of law from the First tier to the Upper Tribunal, an exception was initially made for the Criminal Injuries Compensation Appeal Panel.
+The reason given in the 2004 White Paper which preceded the Act was that a second tier appeal was thought unnecessary, because the first appeal was from an independent body rather than a government department (Transforming Public Services: Complaints, Redress and Tribunals (Cm 6243), para 7.18).
+However, in practice a similar result was achieved by a different route.
+Section 18(6) of the 2007 Act enabled the Lord Chief Justice to make directions transferring certain categories of judicial review to the Upper Tribunal.
+The direction made by the Lord Chief Justice on 29 October 2008 (Practice Direction (Upper Tribunal: Judicial Review Jurisdiction) [2009] 1 WLR 327) included as one class of case transferred to the Upper Tribunal: any decision of the First tier Tribunal on an appeal made in the exercise of a the right conferred by the Criminal Injuries
+Compensation Scheme
+This was the route by which the present case reached the Upper Tribunal.
+It was one of three cases heard together, all relating to the interpretation of the term crime of violence.
+As the decision explains (para 1), they were directed for hearing by a three judge panel because of the important point of principle involved.
+The panel consisted of two senior Upper Tribunal judges (Judge Sycamore and Upper Tribunal Judge Mesher) presided over by a High Court Judge, Nicol J.
+In normal circumstances in the absence of some serious error of principle, one would not have expected there to have been a need for a further appeal to the higher courts.
+It seems that the main reason for granting permission to appeal in this case was the perception, raised by the grounds of appeal, that there had been inconsistent treatment of such cases in the First tier tribunal.
+In granting permission Maurice Kay LJ noted that this was essentially a perversity challenge, with all the usual attendant difficulties, but commented: the point is an important one and does not seem always to have been approached consistently by the CICA.
+The grounds of appeal had referred to the case of Fuller in which, it was said, the tribunal on substantially the same facts had found the requisite degree of recklessness for a section 20 offence.
+That case had been heard on 30 April 2010, and the decision notice issued on 4 May 2010, shortly before the UT hearing in the present case.
+For that reason, no doubt, the decision does not seem to have been mentioned before the UT.
+The notice of appeal to the Court of Appeal enclosed papers relating to the Fuller case (Fuller v Criminal Injuries Compensation Authority (unreported) 4 May 2010), with a copy of the decision notice supplied by the Tribunals Service.
+That stated the effect of the tribunals decision but gave no reasons.
+It seems that this remained the only material available to the Court of Appeal at the full hearing.
+Patten LJ [2012] QB 345, paras 22 24 referred to the FTT decision in Fuller, noting that the CICAs refusal of compensation had been reversed by the FTT on appeal, but with no reasoned decision.
+Counsel then appearing for the CICA was reduced to submitting that, the question being one of fact for the CICA or the FTT, it was open to them on the same facts to reach a decision either way.
+Not surprisingly Patten LJ found that an unattractive submission.
+Unfortunately neither the parties nor the Court of Appeal seem to have been made aware of the relevant practice in the Social Entitlement Chamber, of which this jurisdiction forms part.
+Reasons may be given orally; written reasons need not be given unless requested within one month (see Tribunal Procedure (First tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685), rules 33 and 34).
+There is before us a letter from HM Courts and Tribunals Service dated 23 January 2012.
+This explains that, where the appellant is represented, as in this case, the practice is for the tribunal chair to give an oral summary of the tribunals decision.
+A handwritten version of the oral summary is retained in the records, and also passed to the CICA for their admin purposes.
+It would only be transcribed by the office where a hearing had proceeded in the absence of the appellant or his representative.
+A request for written reasons had to be made within one month.
+Had such a request been made, a formal statement of reasons would have been prepared by the tribunal members themselves.
+That not having been done, the office was able only to supply a verbatim transcript of the handwritten summary of reasons.
+For present purposes I need only read the first paragraph of this summary: 1.
+The alleged offender jumped in front of the lorry when it was travelling on the A130 at 50 mph at 8 pm with other traffic on the road.
+We find that the alleged offender should have foreseen that some physical harm to some person, albeit of a minor character, might result, within the meaning of Lord Ackner in R v Savage [1992] 1 AC 699, 752.
+He was reckless whether or not anyone else was hurt in the process of his committing suicide The summary ended by observing that this was an important case on the construction of the scheme which is contentious, and that, although the panel had reached a unanimous decision, we would not discourage an appeal to the Upper Tribunal for more authoritative guidance on how the scheme should be interpreted in these circumstances.
+This invitation was not taken up on that particular occasion.
+Had this statement of reasons been available to the Court of Appeal, it is unlikely that they would have been unduly troubled by the apparent inconsistency.
+As is clear from the citations given by Lord Hope, it is not sufficient to establish recklessness that the alleged offender should have foreseen that some physical harm might result.
+It is necessary to show that he actually foresaw that physical harm to some other person would be the consequence of his act, even if not the degree of harm which actually occurred (see the passage from R v Mowatt, quoted by Lord Hope at para 11).
+The tribunals apparent misreading of Lord Ackners words in R v Savage [1992] 1 AC 699 is perhaps understandable.
+The passage in question is as follows: I am satisfied that the decision in Mowatt was correct and that it is quite unnecessary that the accused should either have intended or have foreseen that his unlawful act might cause physical harm of the gravity described in section 20, ie a wound or serious physical injury.
+It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result. (p752 f g, emphasis added).
+Taken out of context, the last sentence might seem to support the tribunals view in Fuller.
+However, it is clear from the preceding passage that it was not intended to have this effect.
+The question to which this passage provided an answer was set out at p751E: In order to establish an offence under section 20, is it sufficient to prove that the defendant intended or foresaw the risk of some physical harm or must he intend or foresee either wounding or grievous bodily harm? (emphasis added) Thus the need for actual foresight of risk was taken as given, the issue being whether it needed to be risk merely of some physical harm or of something more than that.
+I agree with Lord Hope that no such mistake was made in the present case by the tribunals at either level.
+There was accordingly no ground for setting aside their decisions.
+I also agree with him in questioning the description of the issue as a jury question.
+That may have seemed an appropriate description in 1987, when Ex p Webb was decided.
+However, in my view it needs to be updated.
+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.
+Promotion of such consistency was part of the thinking behind the recommendation of Sir Andrew Leggatt for the establishment of an appellate tribunal (Tribunals for Users, One System, One Service, March 2001, paragraphs 6.9 to 6.26).
+It was adopted by the government in the 2004 White Paper, paras 7.14 to 7.21), which spoke of the role of the new appellate tier in achieving consistency in the application of the law.
+Although the appeal from the First tier Tribunal was to be limited to a point of law, it was observed that for some jurisdictions this may in practice be interpreted widely, for instance to allow for guidance on valuation principles in rating cases.
+The general principle is that an appeal hearing is not an opportunity to litigate again the factual issues that were decided at the first tier.
+The role is to correct errors and to impose consistency of approach. (White Paper, para 7.19).
+Thus it was hoped that the Upper Tribunal might be permitted to interpret points of law flexibly to include other points of principle or even factual judgment of general relevance to the specialised area in question.
+That might have seemed controversial.
+However, as an approach it was not out of line with the developing jurisprudence in the appellate courts.
+In Moyna v Secretary of State for Work and Pensions [2003] 1 WLR 1929, paras 20 28, Lord Hoffmann, in the leading speech, had considered the interpretation by the social security commissioners of the so called cooking test for welfare benefits.
+He rejected the submission that, because the words used were ordinary English words, it should be treated as a pure question of fact, following Lord Reids well known comments on the meaning of the words insulting behaviour in Cozens v Brutus [1973] AC 854, 861, which Lord Hoffmann thought had been given a much wider meaning than the author intended (para 23).
+Commenting on the distinction between issues of law and fact, Lord Hoffmann said: 26.
+It may seem rather odd to say that something is a question of fact when there is no dispute whatever over the facts and the question is whether they fall within some legal category.
+In his classic work on Trial by Jury (1956) Lord Devlin said, (at p 61): The questions of law which are for the judge fall into two categories: first, there are questions which cannot be correctly answered except by someone who is skilled in the law; secondly, there are questions of fact which lawyers have decided that judges can answer better than juries. 27.
+Likewise it may be said that there are two kinds of questions of fact: there are questions of fact; and there are questions of law as to which lawyers have decided that it would be inexpedient for an appellate tribunal to have to form an independent judgment.
+But the usage is well established and causes no difficulty as long as it is understood that the degree to which an appellate court will be willing to substitute its own judgment for that of the tribunal will vary with the nature of the question: see In re Grayan Building Services Ltd [1995] Ch 241, 254 255.
+Lord Hoffmann took this line of thinking a stage further in Lawson v Serco [2006] ICR 250, where the issue was the application of the Employment Rights Act 1996 to peripatetic employments, involving substantial work outside the UK.
+He described this as a question of law, although involving judgment in the application of the law to the facts (para 24).
+Under the heading fact or law, he said (para 34): Like many such decisions, it does not involve any finding of primary facts (none of which appear to have been in dispute) but an evaluation of those facts to decide a question posed by the interpretation which I have suggested should be given to section 94(1), namely that it applies to peripatetic employees who are based in Great Britain.
+Whether one characterizes this as a question of fact depends, as I pointed out in Moyna v Secretary of State for Work and Pensions [2003] UKHL 44; [2003] 1 WLR 1929, upon whether as a matter of policy one thinks that it is a decision which an appellate body with jurisdiction limited to errors of law should be able to review.
+I would be reluctant, at least at this stage in the development of a post section 196 jurisprudence, altogether to exclude a right of appeal.
+In my opinion therefore, the question of whether, on given facts, a case falls within the territorial scope of section 94(1) should be treated as a question of law.
+On the other hand, it is a question of degree on which the decision of the primary fact finder is entitled to considerable respect.
+In the present case I think not only that the Tribunal was entitled to reach the conclusion which it did but also that it was right.
+I discussed these developments in an article in 2009 (Tribunal Justice, A
+New Start [2009] PL 48, pp 63 64).
+Commenting on Moyna I said: The idea that the division between law and fact should come down to a matter of expediency might seem almost revolutionary.
+However, the passage did not attract any note of dissent or caution from the other members of the House.
+That it was intended to signal a new approach was confirmed in another recent case relating to a decision of an employment tribunal, Lawson v Serco.
+Of Lord Hoffmanns words in Serco itself, I said: Two important points emerge from this passage.
+First, it seems now to be authoritatively established that the division between law and fact in such classification cases is not purely objective, but must take account of factors of expediency or policy.
+Those factors include the utility of an appeal, having regard to the development of the law in the particular field, and the relative competencies in that field of the tribunal of fact on the one hand, and the appellate court on the other.
+Secondly, even if such a question is classed as one of law, the view of the tribunal of fact must still be given weight.
+This clarifies the position as between an appellate court on the one hand and a first instance tribunal.
+But what if there is an intermediate appeal on law only to a specialist appellate tribunal? Logically, if expediency and the competency of the tribunal are relevant, the dividing line between law and fact may vary at each stage.
+Reverting to Hale LJs comments in [Cooke v Secretary of State for Social Security [2002] 3 All ER 279 paras 5 17], an expert appellate tribunal, such as the Social Security Commissioners, is peculiarly fitted to determine, or provide guidance, on categorisation issues within the social security scheme.
+Accordingly, such a tribunal, even though its jurisdiction is limited to errors of law, should be permitted to venture more freely into the grey area separating fact from law, than an ordinary court.
+Arguably, issues of law in this context should be interpreted as extending to any issues of general principle affecting the specialist jurisdiction.
+In other words, expediency requires that, where Parliament has established such a specialist appellate tribunal in a particular field, its expertise should be used to best effect, to shape and direct the development of law and practice in that field.
+For the purposes of the present appeal it is unnecessary to consider further the working out of these thoughts.
+In the present context, they provide support for the view that the development of a consistent approach to the application of the expression crime of violence, within the statutory scheme, was a task primarily for the tribunals, not the appellate courts.
+LORD WALKER, LADY HALE AND LORD SUMPTION
+reasons they give, we too would allow this appeal.
+We agree with the judgments of Lord Hope and Lord Carnwath and, for the
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+The respondents to the Lord Advocates appeal in these three cases are Raymond Jude, Michael Hodgson and Josh Birnie.
+They were each detained as suspects for questioning at a police station under sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995.
+Their detentions took place prior to the decision of this court in Cadder v HM Advocate [2010] UKSC 43, 2011 SC(UKSC) 13; [2010] 1 WLR 2601.
+As was the practice at that time, they did not have access to legal advice either before or during their police interviews.
+In the course of their interviews they said things in reply to questions put to them by the police on which the Crown relied at their trials.
+They were convicted and sentenced to various periods of imprisonment.
+They then appealed against these convictions.
+Their appeals were still current when the judgment in Cadder was delivered on 26 October 2010.
+Among other grounds of appeal in the High Court of Justiciary the respondents advanced submissions which raised a devolution issue.
+This was that the leading of evidence of statements which they made during their police interviews was a breach of their rights under articles 6(3)(c) and 6(1) of the European Convention on Human Rights and that, in terms of section 57(2) of the Scotland Act 1998, the Lord Advocate had no power to lead that evidence.
+They referred to the decision in Cadder in support of this ground of appeal.
+For Birnie it was also submitted that the reliance by the Crown upon his admissions in these circumstances deprived him of a fair trial, to which he was entitled under article 6(1) of the Convention and at common law.
+The Crowns response to these submissions was that, for various reasons, the principle that was established in Cadder did not apply in these cases.
+The High Court of Justiciary decided to deal with this response as a preliminary issue, and it was referred to a court of five judges.
+On 11 May 2011 the Appeal Court (the Lord Justice-Clerk (Gill) and Lords Osborne, Eassie, Clarke and Mackay of Drumadoon) repelled the Crowns objections and continued the appeals for hearing on the remaining grounds of appeal: [2011] HCJAC 46, 2011 SLT 722.
+The Crown was given leave to appeal against that decision to this court under para 13 of Schedule 6 to the Scotland Act 1998.
+The issues raised by the Crowns response to the devolution issue were as follows: (1) that in the case of each respondent section 118(8) of the Criminal Procedure (Scotland) Act 1995 was an absolute bar to any challenge to the evidence of the police interviews, as objection was not taken at or before the trial to the leading of that evidence; (2) that each of the respondents had waived their right of access to a lawyer when they were interviewed; (3) that by failing to object to the evidence through their respective legal representatives they had waived the right to take the point as a ground of appeal; and (4) in Judes case only, that the point had been taken too late as section 100(3B) of the Scotland Act 1998, as amended by section 1 of the Convention Rights Proceedings (Amendment) (Scotland) Act 2009, provides that any proceedings brought on the ground that an act of a member of the Scottish Executive is incompatible with the Convention rights must be brought before the end of the period of one year beginning with the date on which the act complained of took place.
+The Crown did not seek leave to appeal from the Appeal Courts decision in relation to the application of section 118(8) of the 1995 Act.
+Leave was sought and granted in relation to the issues of waiver and the application to Judes case of section 100(3B) of the Scotland Act.
+In his written case to this court the Lord Advocate made it clear that he did not intend to pursue the point that the respondents had waived their right to object to the admissibility of the evidence of the police interviews because their legal representatives did not object to that evidence at the trial.
+This was because he accepts that, at the time when the respondents were tried, a person who was detained under section 14 of the 1995 Act did not have an express right in Scots law to legal advice before or during his police interview.
+As for the issue of individual waiver, his position was that the only point in these appeals which was likely to be of importance for future cases was that raised in the case of Birnie.
+Unlike the other two respondents Birnie made an unsolicited statement following his police interview, having declined the opportunity to have access to a lawyer prior to and while making it.
+The advocate depute, Miss Cherry QC, confined her submissions about waiver in these three cases to the question whether Birnie waived his right to a lawyer when he made his unsolicited statement.
+She made no submissions in support of the proposition that the respondents had waived their right to a lawyer at their police interviews.
+That issue was however the subject of detailed submissions in the Lord Advocates reference in McGowan (Procurator Fiscal, Edinburgh) v B, which was heard at the same time as these appeals.
+The court has issued a separate judgment in that case: [2011] UKSC 54.
+In the result the only matters which remain for consideration in relation to these three appeals are (1) whether the time bar referred to in section 100(3B) of the Scotland Act 1998, as amended, applies to Judes appeal, (2) whether Birnie waived his right of access to a lawyer when he made his unsolicited statement following his police interview and (3) whether the reliance by the Crown upon his admissions in these circumstances deprived him of his right to fair trial under article 6(1) of the Convention.
+No issue now arises in regard to the preliminary points that were taken by the Crown in Hodgsons appeal.
+Section 100(3B)
+Jude went to trial in the High Court of Justiciary at Aberdeen on an indictment which libelled one charge of breach of the peace, one charge of lewd and libidinous conduct, three charges of indecent assault and two charges of assault with intent to rape.
+On 5 June 2008 he was convicted of one charge of indecent assault and of both charges of assault with intent to rape.
+On 28 August 2008 he lodged a notice of his intention to appeal against his conviction.
+On 17 February 2009 his appeal was deemed to have been abandoned because his note of appeal had not been lodged within the period referred to in section 110(1)(a) of the 1995 Act.
+On 5 October 2010 he lodged an application for extension of time under section 111(2) of that Act along with a note of appeal.
+His application for extension of time was granted on 6 October 2010 and his note of appeal was received on the same date.
+It is plain, and not disputed, that the time bar which would have otherwise have applied under section 110 of the 1995 Act was removed when the Appeal Court decided on 6 October 2010 to grant Judes application for an extension of time under section 111(2).
+At the end of his judgment in Cadder Lord Rodger drew attention to the provisions of section 100 of the Scotland Act, as amended by the Convention Rights Proceedings (Amendment) (Scotland) Act 2009: 2011 SC(UKSC) 13, paras 104-106.
+In its amended form, the relevant provisions of that section are as follows: (1) This Act does not enable a person (a) to bring any proceedings in a court or tribunal on the ground that an act is incompatible with the Convention rights, or (b) to rely on any of the Convention rights in any such proceedings, unless he would be a victim for the purposes of article 34 of the Convention (within the meaning of the Human Rights Act 1998) if proceedings in respect of the act were brought in the European Court of Human Rights.
+(3) This Act does not enable a court or tribunal to award any damages in respect of an act which is incompatible with any of the Convention rights which it could not award if section 8(3) and (4) of the Human Rights Act 1998 applied.
+(3A) Subsection (3B) applies to any proceedings brought on or after 2 November 2009 by virtue of this Act against the Scottish Ministers or a member of the Scottish Executive in a court or tribunal on the ground that an act of the Scottish Ministers or a member of the Scottish Executive is incompatible with the Convention rights.
+(3B) Proceedings to which this subsection applies must be brought before end of (a) the period of one year beginning with the date on which the act complained of took place, or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances, but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.
+(3E) The reference in subsection (3A) to proceedings brought on or after 2 November 2009 includes proceedings relating to an act done before that date.
+As Lord Rodger observed in para 104 of his judgment in Cadder, the effect of these provisions was not mentioned by any of the counsel who appeared to argue that case in the Supreme Court.
+Nevertheless he went on to express his opinion on it.
+He referred in the following paragraph to the fact that the amendment to section 100 was made in response to the decision of the House of Lords in Somerville v Scottish Ministers [2007] UKHL 44, 2008 SC (HL) 45, [2007] 1 WLR 2734, in which it was held that the time limit in section 7(5) of the Human Rights Act 1998 did not apply to proceedings in relation to Convention rights brought by reference to the Scotland Act 1998.
+Having set out the terms of the section in its amended form, he said that the proceedings in Cadders case were proceedings to which that section applied.
+So, by reason of section 100(3B), to be competent any such proceedings would need to have been commenced before the end of a year beginning with the date on which the Crown led the evidence, or within such longer period as the court considered equitable having regard to all the circumstances: paras 105-106.
+I endorsed what he said in those paragraphs in para 60 of my own judgment, when I included appeals that had been brought timeously among the list of cases that would have to be dealt with in the light of Cadder on the basis that a person who was detained must have had access to a lawyer before being questioned by the police.
+The Crowns attempt to rely on Lord Rodgers analysis in support of its argument that Judes appeal was out of time because the act that was relied on took place more than one year before the lodging of his note of appeal was rejected by the Appeal Court.
+The Lord Justice Clerk said that he could not follow why Lord Rodger should have taken the view that section 100(3B) applied to these proceedings.
+In his opinion it applied only to claims made in civil proceedings and then only when they were brought by virtue of the Scotland Act.
+That was not so in Judes case, as his appeal had been brought under the 1995 Act: 2011 SLT 722, paras 37-38.
+Lord Rodgers observations in paras 105-106 of Cadder were of course obiter.
+They must nevertheless be treated with respect.
+He was, after all, a master of the art of statutory construction.
+As he declared in one of his unpublished lectures, for him the subject of attention in these matters always was the text of the statute.
+His hope was that, by immersing himself in the text and the scheme of the legislation, he would be able to see what the experts who had devoted months and months to preparing and adjusting the text saw and, more importantly, what they meant and how it should be applied.
+His dissenting judgment in Martin v Most [2010] UKSC 10, 2010 SC (UKSC) 40 provides ample evidence of his concern for accuracy and for attention to the detail of the language used by the draftsmen and women when carrying out this exercise.
+He brought to the question as to the meaning and effect of section 100(3B) his deep familiarity with the provisions of the Human Rights Act 1998 which he had developed since he first engaged with the subject in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37, [2004] 1 AC 546, paras 157-163, and his participation in the carefully argued decision of the House of Lords in Somerville.
+As Lord Hamilton points out (see para 40, below), he referred to the Somerville case in para 105 of his judgment in Cadder when he was describing the context in which the amendments to section 100 were made.
+The challenge to the accuracy of his conclusion that section 100(3B) applies to proceedings brought by way of an appeal under the 1995 Act raises two questions.
+The first is whether, as the Lord Justice Clerk indicated in para 38 of his opinion, that section is rendered inapplicable simply because criminal appeals are brought under the 1995 Act and not under the Scotland Act.
+The second is whether the wording of the amended section 100 of the Scotland Act itself shows that it has no application to any criminal proceedings, even at the stage of an appeal.
+I do not think that it is difficult to see why it did not occur to Lord Rodger that the fact criminal appeals are brought under the 1995 Act of itself meant that these appeals lay outside the scope of section 100(3B) of the Scotland Act.
+He would have concentrated on the wording of the Scotland Act, as I would too.
+Section 100(3B) refers to proceedings brought by virtue of this Act against the Scottish Ministers or a member of the Scottish Executive.
+As I said in Somerville, 2008 SC (HL) 45, para 10, anybody who wishes to bring proceedings against a member of the Scottish Executive on the ground that an act or a failure to act is incompatible with the Convention rights, or to rely on the Convention rights in any proceedings, needs to know whether he must do this under sections 6 to 8 of the Human Rights Act or whether he must do so, or can do so only, on the ground that the act or the failure to act is contrary to the provisions of the Scotland Act.
+This is so whether the proceedings in question are civil or criminal, as issues about Convention rights may arise irrespective of the nature of the jurisdiction that the court or tribunal is being called upon to exercise.
+A criminal appeal in which it is said that the leading and relying on evidence by the Lord Advocate was contrary to the appellants Convention rights, and that in terms of section 57(2) of the Scotland Act he had no power to lead that evidence, falls plainly into the category of a proceeding that is by virtue of the Scotland Act.
+It is the Scotland Act which provides the basis for the appeal.
+The fact that the procedure under which the complaint is made is provided by the 1995 Act is neither here nor there so far as this point is concerned.
+So I think that the key to the soundness or otherwise of Lord Rodgers reasoning lies in the answer that is to be given to the second question.
+Section 100(3A) of the Scotland Act refers to any proceedings brought on or after 2 November 2009 by virtue of that Act.
+In para 106 of his judgment Lord Rodger said that the proceedings in Cadder were proceedings brought on the ground that it was incompatible with articles 6(1) and (3)(c) for the Lord Advocate to lead evidence of answers elicited by the police questioning.
+In my opinion it would not be a misuse of language to use the word brought in relation to proceedings which take the form of an appeal under section 106 of the 1995 Act.
+After all, section 106(3) of that Act states that by an appeal under subsection (1) of that section a person may bring under review of the High Court any alleged miscarriage of justice in the proceedings in which he was convicted.
+The word bring is not used in section 175 which provides for appeals in summary proceedings, but the idea that the appellant is bringing appeals under that procedure is not unreasonable.
+The wording of section 106(3) also suggests that it would not be a misuse of language to say that the appeal was a separate proceeding from the proceedings in which the appellant was convicted.
+But that is not an end to the problems that have to be solved in order to understand what is meant by the word proceedings in section 100(3A).
+One must go back to the opening subsection, which Lord Rodger did not mention in para 106 of his judgment in Cadder.
+It makes the same distinction as that which is to be found in section 7(1) of the Human Rights Act 1998 between (a) bringing proceedings in a court or tribunal on the ground that an act is incompatible with the Convention rights and (b) relying on any of the Convention rights in any such proceedings.
+Section 100(1)(a) of the Scotland Act does not reproduce exactly the wording of section 7(1)(a) of the Human Rights Act, as it does not refer to the appropriate court or tribunal which section 7(2) explains as meaning such court or tribunal as may be determined in accordance with rules.
+The words in any such proceedings do not reproduce exactly the wording of section 7(1)(b) of the Human Rights Act either, as the equivalent phrase in that Act is in any legal proceedings.
+But I think that they have the same effect.
+I read the word such in subsection (1)(b) as referring back to the words in a court or tribunal in subsection (1)(a).
+The distinction between subsections (1)(a) and (1)(b) of section 7 of the Human Rights Act is maintained by section 7(5) of that Act, which provides expressly that proceedings under subsection (1)(a) must be brought before the end of the period to which it refers.
+It does not impose any time bar on proceedings of the kind referred to in section 7(1)(b).
+The question then comes to be whether the reference in section 100(3A) of the Scotland Act to any proceedings brought must be taken to refer to proceedings of the former kind only, and not to proceedings of the kind referred to in section 100(1)(b).
+It seems to me, although it does not of course say so expressly, that the wording of section 100(3A) shows that it has that effect and that the time bar in section 100(3B) does not apply to proceedings of the kind referred to in section 100(1)(b).
+The point is that proceedings of the kind referred to in subsection (1)(b) are proceedings that have been brought by someone other than the person who maintains that the act in question is incompatible with the Convention rights.
+In the case of the proceedings referred to in subsection (1)(a), the person to whom the time bar is applied is the person who has brought those proceedings before the court or tribunal in order to obtain a remedy.
+It is the civil courts that have jurisdiction in cases of that kind, as the rules to which I referred in R v Kansal (No 2) [2002] 2 AC 69, para 63 make clear in the case of the Human Rights Act.
+The absence of a time bar on the bringing of proceedings of the kind referred to in section 100(1)(a) of the Scotland Act was the problem that was addressed in Somerville, where it was held that the limitations which section 7(5) of the Human Rights Act imposed on remedies sought under that Act did not apply where the case that was brought was that the act or failure to act was outside competence under the Scotland Act: 2008 SC (HL) 45, para 38.
+The question then is, into which category do appeals that are brought under the 1995 Act fall for the purposes of the Scotland Act? By whom are these proceedings brought?
+The Lord Justice Clerk said an appeal is part of the prosecution process brought against the appellant by a member of the Scottish Executive: para 38.
+There is no doubt that this is a correct description of the proceedings up to and including the trial in which the appellant was convicted.
+The Advocate Depute, Mr Brodie QC, conceded that this was so, and I think that he was right to make this concession.
+But that is not an end of the matter.
+The Lord Advocate is the master of the instance.
+The proceedings are brought in his name.
+He remains in control of them even after they have been brought into court, and this is so even after the verdict has been returned: Hume, Commentaries on the Law of Scotland Respecting Crimes, (1844), vol II at p 134; Montgomery v HM Advocate 2001 SC (HL) 1, pp18-19.
+The focus of attention changes when there is an appeal, but the proceedings remain throughout under the ultimate control of the Lord Advocate.
+The purpose of those proceedings is to secure the conviction and punishment of those who are guilty of committing acts of the kind that the law regards as criminal.
+That is their only purpose, and it remains their purpose from the start to the very end.
+The conclusion that an appeal against conviction or sentence, like any other proceeding in any of the criminal courts in Scotland, is still part of the prosecution process that has been brought in the public interest by the Lord Advocate seems to me to be inescapable.
+It is only fair to Lord Rodger to point out that he mentioned section 100(3B) because he was concerned, as I was too, to try to minimise the effect of the decision in Cadder: see para 60, where to assist this process I invoked the principle of legal certainty.
+But I am persuaded that the advice which he was offering in paras 105-106 of his judgment was mistaken.
+I agree with the Appeal Court that the time bar in section 100(3B) of the Scotland Act has no bearing on Judes appeal.
+I am fortified in this view by the fact the 1995 Act contains in sections 109 and 110 its own system of time limits for the bringing of solemn appeals, as it does in section 176 for an application by stated case.
+It would be very odd to find, in a case where the High Court had already granted an extension under section 111(2) of the period referred to in section 110(1)(a) of the 1995 Act or under section 181(1) of that Act in an appeal by stated case, that it was open to the Crown to invoke another time limit under another section in a different Act.
+It is not easy to identify the precise scope or ambit of the mischief which the amendment that section 100(3B) introduced into the Scotland Act was intended to remedy: see Bennion on Statutory Interpretation, 5th ed (2008), p 929, where the importance of achieving precision on this point is emphasised.
+The fact that the amendment was enacted in response to the decision in Somerville does not exclude the possibility that the time bar was intended to have a wider application than the facts of that case, by themselves, might suggest.
+But the concluding words of section 100(3B) show that the draftsman was aware that stricter time limits might be found in legislation relating to the procedure in question and that it was not the intention that it should override those other time limits or decisions made under a dispensing power to extend them.
+So I think that one can be reasonably confident that the view which I have arrived at by studying the language of these provisions is not contrary to what Parliament had in mind when it introduced this amendment.
+Birnies unsolicited statement
+According to the agreed statement of facts and issues, two issues arise in Birnies appeal.
+The first is whether he was offered rights of access to a solicitor prior to and during the taking of his unsolicited statement after his police interview.
+The second is whether, if he was offered them, he expressly waived those rights.
+But an examination of the facts shows that this formulation of the issues does not accurately focus the real point which is at issue on this branch of the case.
+This is because Birnie was offered access to a solicitor before he made his unsolicited statement and he did decline the offer expressly.
+It is best focused by the additional ground of appeal that was advanced in his case in the High Court of Justiciary: see para 2, above.
+The question that it poses is whether reliance by the Crown upon the admissions that he made in his unsolicited statement deprived him of the fair trial to which he was entitled under article 6(1) of the Convention.
+Reference was also made in that ground of appeal to his right to a fair trial at common law.
+That, of course, does not raise an issue which can be considered by this court, as it is not a devolution issue.
+But there is, in practice, no difference between these two bases for invoking the right to a fair trial.
+Birnie went to trial in the Sheriff Court at Aberdeen on 7 December 2009 charged with abduction and assault with intent to rape, a breach of the peace and a contravention of section 127(1)(a) of the Communications Act 2003 by sending sexually explicit messages to a female complainer.
+He pled guilty to the statutory offence during the trial, and his plea of not guilty to the charge of breach of the peace was accepted at that stage.
+The Crown led evidence at his trial of answers he gave to the police while he was being questioned as a detainee under section 14 of the 1995 Act without access to a solicitor.
+It also led evidence of an unsolicited statement which he made to the police following that interview.
+The jury found him guilty of the first charge under deletion of various averments including that of intent to rape.
+The facts which provide the background to the argument in Birnies case are as follows.
+He was interviewed under caution in a police station on Friday 14 August 2009 between 1034 and 1220 hrs with a break between 1118 and 1206 hrs.
+At the time of his interview he was 18 years of age.
+He had been on probation since 2008 in respect of a charge of breach of the peace with a sexual aggravation, and he was a registered sex offender.
+He had been convicted on two occasions of a breach of the notification requirements of sections 83 and 94 of the Sexual Offences (Scotland) Act 2003.
+He had also previously been interviewed by the police as a suspect.
+As already mentioned in para 1, above, he was not told that he had a right of access to legal advice prior to or during his police interview as it was not the practice at that time for this to be offered to persons detained under section 14 of the 1995 Act.
+Birnie made no admissions during the first stage of his interview apart from being at the locus with the female complainer [AR] referred to in the abduction charge and kissing her.
+He said that this was consensual.
+He was asked during his interview what expression he would use to describe touching his girl friends private parts, to which he replied with a question: fit like poking her? When asked to explain what he meant by this, he said that it meant putting his fingers in her vagina.
+After they had completed their questioning about the abduction the interviewing officers charged Birnie with abducting the complainer [AR], with indecent assault and with two charges of breach of the peace, and they arrested him.
+He was then cautioned and interviewed in relation to another female complainer, to whom he admitted sending a series of text and email messages.
+After further questioning he was charged with sending indecent messages to that complainer.
+Following the interview Birnie was, according to an entry in a police notebook, on the verge of tears.
+At 1223 hrs he asked what was happening to him.
+He was told that he was to be kept in custody over the weekend to appear in Aberdeen Sheriff Court on Monday 17 August 2009.
+On being advised of this he burst into tears and said spontaneously I poked her.
+He was asked by one of the interviewing officers whether he was referring to the complainer [AR], to which he replied Yes.
+He was told to say nothing further but that other officers would attend later to speak to him if he wished to make any further comments.
+At 1235 hrs he was asked if he wished a solicitor informed of his arrest and was told that a duty solicitor could be contacted on his behalf.
+He gave the name of a solicitor.
+It was not until about two hours later, at 1428 hrs, that a message was left with the solicitors secretary to advise him of the arrest.
+Birnie also asked that his mother be told of his arrest, but this was not possible as she was apparently not available to answer the telephone.
+Birnie then told the police that he wished to make a further statement, which he did at about 1345 hrs on 14 August 2009 to two police officers who had not had any prior involvement in the inquiry.
+Before he made his statement, which it is agreed was unsolicited, he was asked whether he wished to consult a solicitor before making it.
+He replied that he did not.
+He was asked whether he wished a solicitor to be present while he was making it.
+He again said that he did not.
+He was then cautioned and asked whether he understood the caution, to which he replied Yeah.
+He then said: I want to admit poking [AR].
+She asked me to do it and we did give each other love bites.
+He was asked to say what he meant by poking, to which he replied that meant putting your fingers in her vagina.
+He then said: I never locked her in.
+I never locked her in her house.
+I asked her several times if she wanted to leave but she says No. I didnt threaten her in any way.
+It is plain from this narrative that Birnie was offered rights of access to a solicitor before he made his statement and he was also asked whether he wished to have a solicitor present while he was making it.
+He expressly declined both of these offers.
+The question is whether, on these facts, his statement was admissible.
+The Crown submits that it was.
+This is because the statement was severable from the prior police interview on two grounds: first, it was preceded by a valid waiver of the right of access to a solicitor and, second, because it was voluntary and not elicited by police questioning.
+The Appeal Court did not address its reasoning to these points, although it had been addressed on them in the course of the hearing of the appeal.
+The Lord Justice Clerk said in para 32 of his opinion that he accepted that the rights of a detainee or of an accused person under article 6 were capable of being waived, but that the argument for the Crown failed in the case of each of the three respondents.
+This was because the law at the time did not allow the accused to have access to a lawyer at the time of the pre-trial procedure and because the consent to be interviewed in each case was not informed by legal advice.
+He dealt more fully with the latter ground for rejecting the Crowns argument in para 34, where he said: Furthermore, a valid waiver can proceed only on the basis of an informed decision.
+Since the right allegedly waived was that of access to legal advice, I cannot see how any of the appellants could waive that right when, ex hypothesi, he had not reason to think that he had any such right and had not had access to legal advice on the point
+The agreed facts show that Birnie was told that he had this right before he made his unsolicited statement following his police interview.
+As for the objection that he did not have access to legal advice on the point before he declined the offer of access to a solicitor, I would hold that the answer to it is that there is no absolute rule that the accused must have been given legal advice on question whether or not he should exercise his right of access to a lawyer before he can be held to have waived it: see my judgment in McGowan (Procurator Fiscal, Edinburgh) v B [2011] UKSC 54.
+Lord Kerr says that it is an indispensible prerequisite that there must be some means of ascertaining the reason why the accused did not avail himself of this right: para 53, below.
+But it was not suggested at any time in the course of the argument that an absolute rule to that effect is to be found in the jurisprudence of the Strasbourg court nor do I find this in Lord Kerrs analysis of the authorities in McGowan.
+This point is of crucial importance to the proper exercise of the jurisdiction that has been given to this court by the Scotland Act.
+The only question for us is whether the absence of such an inquiry amounted in itself to a breach of a Convention right.
+That is the limit of our jurisdiction.
+A rule of the kind that Lord Kerr has suggested might perhaps be recognised at common law.
+But it is not for us to say how the law and practice respecting crimes should be developed by the common law in Scotland.
+That must be left to the High Court of Justiciary, whose decisions on all matters relating to the domestic criminal law of Scotland are final.
+The fact that the accused did not receive legal advice on the point and was not asked why he did not want to speak to a lawyer need not be left out of account altogether for the purposes of article 6.
+These are circumstances which can be taken into account in the assessment as to whether he understood the right that was being waived.
+But they are no more than that.
+I do not think that the Strasbourg jurisprudence requires us to hold that it would necessarily be incompatible with articles 6(1) and 6(3)(c) of the Convention for the Lord Advocate to lead and rely on evidence of answers given by a suspect during a police interview just because it was not ascertained why he did not want to speak to a lawyer.
+A descent to that level of detail in the laying down of incontrovertible rules is contrary to the approach that the court itself has adopted.
+The President of the court, Sir Nicolas Bratza, said in a paper which he gave in Edinburgh in March 2011 that the Strasbourg court has been careful, in general, to leave the national authorities to devise a more Convention-compliant system without itself imposing specific requirements on the State: [2011] EHRLR 505, 510.
+The Supreme Court should, I believe, be no less careful in the way that it deals with Scottish criminal law and procedure.
+There remains the question whether the statement is properly to be regarded as severable from the police interview so that it can be held to be voluntary and not elicited by the previous police questioning.
+It is not in doubt that an unsolicited admission which is truly spontaneous and voluntary is admissible.
+In Cadder Lord Rodger observed that it is quite common for those who have been arrested to decide to make admissions to the police and not to exercise their right to obtain legal advice before doing so: 2010 SLT 1125, para 96.
+A person can confess if he is willing to do so, and his confession will be admissible if it is truly voluntary.
+The common law test as to what may be regarded as voluntary was described in Manuel v HM Advocate 1958 JC 41, 48 by Lord Justice General Clyde.
+He said that, to be voluntary, the statement must have been freely given and not given in response to pressure or inducement and not elicited by questioning other than what is directed simply to elucidating what has been said.
+The crucial question then is whether this statement freely given? Or was it the result of some kind of pressure or inducement by the police?
+We were not referred to any jurisprudence of the Strasbourg court on this precise point.
+But in Oregon v Elstad 470 US 298 (1985), pp 317-318 Justice OConnor, giving the opinion of the US Supreme Court, observed that some courts had applied that courts precedents, including Miranda v State of Arizona 384 US 436 (1966), relating to confessions obtained under coercive circumstances to situations involving wholly voluntary admissions, requiring a passage of time or break in events before a second, fully warned statement can be deemed voluntary.
+She went on to add these words: Far from establishing a rigid rule, we direct courts to avoid one; there is no warrant for presuming coercive effect where the suspects initial inculpatory statement, though technically in violation of Miranda, was voluntary.
+The relevant inquiry is whether, in fact, the second statement was also voluntarily made.
+In Missouri v Seibert (2004) 542 US 600, where the suspect made an initial confession without having been given a Miranda warning, a majority of the court held that his second statement after a Miranda warning was inadmissible.
+They rejected the minoritys criticism that this was inconsistent with Elstad, on the ground that the failure to give the warning in Elstad was a good-faith mistake which was open to correction by careful warnings before systemic questioning in that particular case took place: p 615.
+In R v Cherie McGovern (1990) 92 Cr App R 228 the Court of Appeal held that a second interview, where a solicitor was present, was tainted by the fact that at her first interview which took place the previous day the appellant had been denied access to a solicitor.
+There were special features in that case.
+The appellant, who was aged 19, pregnant and of limited intelligence, was said to have been particularly vulnerable.
+Farquharson LJ said at p 234 that if the solicitor who was present at the second interview had known that the appellant had been wrongfully denied access to a solicitor at the first interview he would in all probability not have allowed the second interview to take place.
+Such authorities as there are on this issue suggest that each case must be examined carefully on its own facts.
+There are signs in this case, as in R v Cherie McGovern, that Birnie was particularly vulnerable when he made what I have referred to as his statement.
+It was unsolicited.
+He was no longer being interviewed.
+But the interval between his making it and the end of the police interview was very short.
+He had just been told that he was to be detained over the weekend, and he had been crying.
+It is at least questionable whether he would have made this statement if he had said that he wished to consult a solicitor and he had then received the legal advice to which he was entitled before making it.
+This is not a question that needs to be answered in every case.
+But in the circumstances of this case it is not one that can be left out of account in considering whether there was a breach of the right to a fair trial.
+I think that it is plain that there is room for argument as to whether the statement that Birnie made was truly voluntary and in any event whether, taking all the circumstances into account, it was fair to admit this evidence.
+Lord Kerr says that on the available evidence the only possible conclusion is that that it has not been established that Birnies decision not to consult a solicitor was an effective waiver of his right to legal consultation: see para 57, below.
+But here again the limits of our jurisdiction must be respected.
+It is not our function to act as a second court of appeal on matters that depend on the application of the domestic law.
+The question whether there has been a breach of the fundamental Convention right to a fair trial is within our jurisdiction.
+But, as I would hold that it was not necessarily incompatible with articles 6(1) and 6(3)(c) of the Convention for the Lord Advocate to lead and rely on this evidence, I consider that the question of fairness for the purposes of article 6(1) must be examined in the light of all the facts and circumstances.
+This is pre-eminently a matter for determination in the first instance by the High Court of Justicary.
+As the Appeal Court has not yet addressed itself to this issue, I would remit it to that court for determination as part of the continued hearing of Birnies appeal.
+Conclusion
+I would dismiss the Crowns appeal on the question whether section 100(3B) of the Scotland Act 1998 applies in this case.
+I would dismiss its appeals on the issue as to waiver in regard to the police interviews in all three cases.
+I would allow its appeal on the question whether it was incompatible with Birnies right to a fair trial under article 6 of the Convention for the Crown to lead and rely on the evidence of the statement which he made following his police interview and remit that matter for determination by the High Court of Justiciary.
+I am in full agreement with the judgments of Lord Hope and Lord Hamilton on these appeals and would dispose of them as Lord Hope proposes.
+I am in full agreement with the judgments of Lord Hope and Lord Hamilton on these appeals and would dispose of them as Lord Hope proposes.
+I agree with Lord Hope as to the disposal of all three of these appeals and adopt his narrative of the pertinent circumstances.
+I also adopt his reasoning in relation to Birnies unsolicited statement.
+I add a few words of my own on the issue of interpretation of section 100(3B).
+The question is whether an appeal against a conviction, obtained on indictment or on complaint, is proceedings brought by virtue of [the Scotland Act] against [the Lord Advocate] within the meaning of subsection (3A) of the Scotland Act (as amended by the Convention Rights Proceedings (Amendment) (Scotland) Act 2009).
+The scope of subsection (3A) must ultimately be determined by the statutory language used.
+But it is necessary to have regard to that language in the context of the legislation in which it appears and, in my view, in the context also of such other legitimately available material as may assist in the exercise of interpretation.
+This may involve identifying the mischief at which the enactment was directed.
+In Bennion on Statutory Interpretation, 5th ed (2008), p 938 it is stated: These presumptions [that Parliament intended to suppress the mischief and that it did not intend to apply coercive measures going wider than was necessary to remedy the mischief in question] as to Parliaments intention may help in construing an enactment whose wording is doubtful.
+The importance of the mischief goes further than this, however.
+We cannot be sure whether there is real doubt or not unless we have the mischief in mind.
+This is one function of the informed interpretation rule.
+In the consideration of opposing constructions of an enactment in relation to a particular factual situation, we may find that bringing the mischief into account helps to decide whether the enactment is intended to be given a wider or narrower construction.
+The first thing to notice is that the amendment made by the 2009 Act is an amendment to section 100 itself by adding two subsections to it.
+That suggests that the intendment of the legislature was to make an improvement, as it saw it, to the effect of section 100 as originally enacted.
+The nature of that intended improvement is not difficult to find.
+As Lord Rodger himself said in Cadder v HM Advocate 2011 SC (UKSC) 13, at para 105: In Somerville v Scottish Ministers [2008 SC (HL) 45] the House of Lords held that the time limit in section 7(5) of the Human Rights Act 1998 did not apply to proceedings in relation to Convention rights brought by reference to the Scotland Act 1998.
+It followed that, subject to any common law limitations or any specific statutory time limit, such proceedings could be brought at any time.
+The Scottish Parliament eventually responded to that decision by passing the Convention Rights Proceedings (Amendment) (Scotland) Act 2009, which amended section 100 of the Scotland Act so as to introduce a one-year time-limit like the one in section 7(5) of the Human Rights Act.
+Somerville was a civil case in which the House of Lords relied significantly upon section 100 of the Scotland Act (as originally enacted) as well as on the other provisions of that statute.
+Of course, the statutory response may, intentionally or inadvertently, have been wider than to deal with the prior statutory effect which was thought to be undesirable.
+But all the indications are the other way.
+The limitation on the bringing of proceedings provided for by section 100(3B) is for practical purposes identical to that provided by section 7(5) of the Human Rights Act 1998.
+That subsection applies, and applies only, to proceedings brought under section 7(1)(a).
+Such proceedings are civil proceedings (R v Kansal (No 2) [2002] 2 AC 69, per Lord Hope of Craighead at paras 58-63).
+This is to be contrasted with section 7(1)(b) which allows for reliance on the Convention right or rights concerned in any legal proceedings a term defined comprehensively by section 7(6).
+Such reliance can accordingly be had in criminal as well as in civil proceedings.
+It is difficult to suppose that the Scottish Parliament would have, in effect, adopted the exact language used for civil proceedings in the Human Rights Act if it had intended to provide for criminal as well as for civil proceedings.
+Further, it is difficult to conceive why the Scottish Parliament should think it appropriate to provide for criminal appeals a limitation period such as that made by section 100(3A) and (3B).
+The Criminal Procedure (Scotland) Act 1995 makes its own provision for the timeous taking of appellate steps.
+Section 106 allows a person convicted on indictment, with leave granted in accordance with section 107, to appeal in accordance with that Part of the Act to the High Court against various things, including conviction and sentence.
+Section 109(1) prescribes that, where a person desires to appeal against any of the things referred to in section 106(1), he shall within two weeks of the final determination of the proceedings, lodge with the Clerk of Justiciary written intimation of intention to appeal .
+Section 110(1)(a) provides that, in the case of an appeal against conviction, the convicted person may, subject to section 111(2), within eight weeks of lodging intimation of intention to appeal lodge a written note of appeal .
+A shorter (four weeks) period is allowed for appeals other than appeals against conviction (section 110(1)(b)).
+Section 111(2) provides: Any period mentioned in section 109(1) or 110(1)(a) of this Act may be extended at any time by the High Court in respect of any convicted person .
+Thus, as regards proceedings on indictment, the 1995 Act provides its own (much shorter) temporal restrictions on bringing appeals with a similar power in the court to extend the period on equitable grounds.
+As regards summary proceedings, section 175 allows a convicted person to appeal with leave to the High Court.
+The more usual mode of appeal is by stated case (section 176), for which again a short timetable is prescribed.
+Section 181(1) empowers the High Court to direct that such further time as it may think proper be afforded to the applicant to comply with the requirements as to time.
+The statute recognises other common law modes of appeal (by, for example, bill of suspension).
+At common law there was no time limit for the bringing of a suspension but acquiescence in the judgment complained of might be inferred from undue delay (Renton and Brown Criminal Procedure, para 33-09).
+A statutory time limit (three weeks) for bringing a bill of suspension was introduced by section 6(1) of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010.
+It is difficult to suppose that, in inserting section 100(3)(A) and (3B) into the Scotland Act in 2007, the Scottish Parliament had in mind common law remedies in summary matters.
+Accordingly, there are persuasive reasons, in my view, for concluding that subsections (3A) and (3B) of section 100 (as amended) were designed to apply only to civil proceedings.
+Although not spelt out in the legislation, that restriction is consistent with the statutory language used.
+Against that background the expression any proceedings brought by virtue of this Act against [the Lord Advocate] is to be construed.
+It is conceded, inevitably, that criminal proceedings at first instance are not within the ambit of section 100(3A).
+While Part VII of the 1995 Act (headed Solemn Proceedings) is dealt with distinctly from Part VIII (headed Appeals from Solemn Proceedings), it involves, in my view, some artificiality of language to construe any proceedings brought as apt to include an appeal taken against conviction or sentence.
+In effect, there are single proceedings initiated by service of the indictment or complaint, the appeal by a convicted person being a step taken within these single proceedings.
+I am not persuaded that the terms of section 106(3) (By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice) assist in determining whether an appeal is proceedings (distinct from the prosecution) brought by the convicted person.
+More importantly, in my view, the expression any proceedings brought in subsection (3A) appears to pick up the language to bring any proceedings in subsection (1)(a), which in turn reflects the language of section 7(1)(a) of the Human Rights Act a provision concerned with civil proceedings (supra).
+In any event, if there is ambiguity about the interpretation of subsection (3A), the considerations referred to earlier would, in my view, conclusively point to a criminal appeal not being within the scope of this provision.
+There remains for consideration by virtue of this Act.
+Some elaboration of that phrase is provided by section 126(11) which tells us that by virtue of includes by and under.
+In Somerville an issue was whether the obiter observations by Lord Hope and by Lord Rodger in R v HM Advocate 2003 SC (PC) 21 as to the effect of the Scotland Act (and in particular section 100(1) of it) were well founded.
+In R Lord Rodger had said at para 123: Section 100 has a counterpart in section 7 of the Human Rights Act, subsection (1) of which is expressed slightly more fully: (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act.
+Especially in the light of that provision, I would infer from section 100(1) of the Scotland Act that the Act itself enables a person, who claims that an act or proposed act of a member of the Scottish Executive is incompatible with his Convention rights, to bring proceedings in a court or tribunal or to rely on his Convention rights in any proceedings in a court or tribunal.
+Convention rights and the remedies for vindicating them belong in the sphere of public rather than private law.
+What particular form the remedy or reliance will take depends on the court or tribunal, and on the jurisdiction, in which the matter arises.
+In an appropriate court the person affected can seek damages under the Scotland Act in respect of an incompatible act. .
+The majority in Somerville in effect approved that approach namely, that section 100 was, by inference, an enabling provision which, among other things, allowed a victim of an infringement of section 57(2) to rely on the Convention right or rights concerned in any legal proceedings, including criminal proceedings.
+Thus, while the procedural vehicle by which a person convicted in solemn proceedings brings his conviction or sentence under review is by an appeal under section 106 of the 1995 Act, it is the Scotland Act which enables him in that appeal to rely upon the alleged infringement of that right or those rights.
+Both statutes have thus a part to play.
+While I think it is a nice question, I have come with hesitation to the view that it can meaningfully be said that an appeal which relies upon an alleged infringement of a Convention right is one brought by virtue of the Scotland Act.
+I would accordingly not support the High Courts reasoning in this respect.
+As Lord Hope has pointed out (in para 5 of his judgment), the advocate depute has confined her challenge to the outcome of the appeals in Jude, Hodgson and Birnie to the claim that Birnie had waived his right to a lawyer when he made an unsolicited statement following his police interview, having declined the opportunity to have access to a lawyer prior to and while making it.
+It is not now argued that Jude or Hodgson waived their right to a lawyer.
+It is, of course, suggested that the Appeal Court was wrong in each of the cases in concluding that an effective waiver of their rights under article 6 of ECHR could only be made after they had received legal advice.
+A further discrete ground was advanced on behalf of the Lord Advocate in the case of Jude to the effect that section 100(3B) of the Scotland Act 1998, as amended by section 1 of the Convention Rights Proceedings (Amendment) (Scotland) Act 2009, precluded a challenge to the Lord Advocates leading evidence of the statement which Jude made because that challenge was made too late.
+I agree with all that Lord Hope and Lord Hamilton have had to say on that subject and do not propose to expatiate further on it.
+As I stated in my judgment in the reference (McGowan, Procurator Fiscal v B) I agree with Lord Hope that there is no absolute rule to be derived from the case-law of the European Court of Human Rights (ECtHR) that an effective waiver of the right to legal assistance can only take place after the person purporting to waive the right has received legal advice on whether that course should be followed.
+I believe that generally this will be the most effective way of ensuring that there has been an effective waiver but Strasbourg jurisprudence has not yet developed to the point where that is an essential prerequisite.
+That fact alone would not have deterred me from concluding that this was necessary if I had felt that the article 6 rights of the respondents could not otherwise be secured see my judgment in Ambrose v Harris (Procurator Fiscal, Oban) [2011] UKSC 43, 2011 SLT 1005.
+But I am not persuaded that the only possible means of ensuring that there has been an effective waiver is by having the suspect who waives the right receive legal advice on that course before he does so.
+I have explained in my judgment in McGowan why I consider that such safeguards as are currently available in Scottish law to protect the interests of a suspect are not efficacious to ensure that a decision not to have legal assistance constitutes an effective waiver.
+In particular, I have pointed out that it is an indispensable prerequisite that there must be some means of ascertaining the reason that a decision not to avail of this fundamental right has been taken.
+Birnies case strikingly illustrates the elementary need for some inquiry to be made of a suspect as to why he has decided not to have the advice of a solicitor before interview unless the reasons for that are otherwise clearly obvious.
+Although he was no stranger to the criminal law, Birnie was only eighteen years old when he was interviewed by police.
+Following interview he was on the verge of tears.
+When he was told that he was going to be kept in custody he broke down and made what has been said to be an unsolicited admission.
+It is difficult to imagine that this admission and Birnies breaking down were unrelated to his being told that he was going to be detained over the weekend.
+At 12.35 pm, some twelve minutes after he had made the admission, he was asked whether he wished to have a solicitor contacted on his behalf.
+He nominated a firm of solicitors to contact but a message was not left with that firm until some two hours later.
+He also wanted his mother to be informed of his arrest but that proved impossible.
+The fact that he wanted both his solicitors and his mother to be informed that he was in detention is at least relevant to his state of mind at that time and his ability to cope without legal assistance during any further questioning.
+Birnie told police that he wanted to make a statement some time before 1.45 pm notably, some 43 minutes before the solicitors whom he had been asked to be informed of his arrest were given that information.
+Before he made his further statement at 1.45 pm he was asked whether he wished to consult his solicitor before making it and he replied that he did not, and when asked whether he wished to have a solicitor present while he was making it, again said that he did not.
+In the circumstances the second inquiry might seem otiose but it was the product of a pro forma procedure.
+Some such procedure is, of course, required to ensure that a consistent practice is followed but, because of the routine way in which it must be applied, it is hardly the most efficient way to examine whether a suspect has fully understood the importance of the right which is being relinquished.
+Lord Hope has observed that Birnie expressly declined both offers of legal assistance.
+This is true but it seems to me inescapable that his decision to do so could not in any circumstance be regarded as an effective waiver of his right to legal counsel and I believe that it is inconceivable that any court could be satisfied of that to the requisite standard.
+Birnie was not asked why he did not want to speak to a lawyer, notwithstanding that he had nominated a firm of solicitors something over an hour before.
+He was not told that he could speak to a solicitor by telephone.
+No inquiry was made as to whether the decision to make a statement at that time was related to the intention of police to detain him over the weekend.
+That this was, at the very least, a distinct possibility must have been obvious to the police officers who interviewed him.
+Quite apart from the fact that the unsolicited statement was made shortly after he had been interviewed without having been informed of his right to legal assistance and leaving aside the possible impact that this might have on the admissibility of his later statement, the circumstances in which his unsolicited statement was made raise substantial and inevitable doubts that his waiver of the fundamental right to legal assistance was effective.
+For these reasons I would hold that it is unnecessary to remit Birnies case to the Appeal Court.
+I am of the view that, on the available evidence, the only possible conclusion is that it has not been established that Birnies decision not to consult a solicitor was an effective waiver of his right to legal consultation.
+For these reasons I consider that it has not been - and on the available evidence cannot be - established that Birnies decision not to consult a solicitor constituted an effective waiver of his right to legal consultation.
+On that account, I would dismiss the appeal in his case.
+I would dismiss the appeals in Jude and Hodgson for the reasons given by Lord Hope.
+In para 29 of his judgment Lord Hope has fastened on my statement (at para 53 above) that it is an indispensable prerequisite that there must be some means of ascertaining the reason that an accused did not wish to avail himself of the right to legal assistance and has characterised this as an absolute or incontrovertible rule.
+I had not intended to propound any new principle, much less an inflexible rule.
+In saying that a means must exist for understanding why someone has declined to exercise his right to legal assistance before finding that there has been an effective waiver, I was merely reflecting what I understand to be the unmistakable effect of current Strasbourg jurisprudence.
+I was not constructing some unheralded, disquieting rule.
+This can be demonstrated by a few simple propositions: (i) For a waiver to the right to legal assistance to be effective, there must be a knowing and intelligent decision to waive the right.
+I do not understand the majority in this case to suggest otherwise; (ii) In a case where the effectiveness of the waiver is in dispute, it is for the prosecution to prove that it is effective.
+Again I do not believe that this is controversial; (iii) It is well recognised that reasons other than those which would qualify as sufficient to support the conclusion that a knowing and intelligent decision has been made will frequently motivate a suspect to decline the right to legal assistance; (iv) In order for the prosecution to show that such reasons do not obtain and that a knowing and intelligent decision has been made, it is necessary to have some insight into why the right has been declined.
+The requirement that a means exist of obtaining that insight does not involve the creation of some startling new rule.
+It merely follows the flight of the arrow of logic to its obvious destination.
+In these circumstances, I respectfully question whether the passage from the paper by the President of ECtHR, Sir Nicolas Bratza, quoted by Lord Hope has any relevance to the current debate.
+Sir Nicolas had made the entirely unexceptionable statement that the Strasbourg court has been careful to refrain from imposing specific requirements on the State.
+Quite so but that does not impinge on the conclusion that I have reached about the effect of the case-law of the European Court of Human Rights.
+I have merely indicated where I believe the jurisprudence of that court in this area leads.
+It was not my intention to descend to a level of detail in laying down an incontrovertible rule.
+Indeed, I have made it clear that an inquiry into the reasons for a purported waiver is required only when those reasons are not obvious from the circumstances in which it was made.
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+Act) provide as follows: Sections (1) and (2) of section 123 of the Insolvency Act 1986 (the 1986 (1) A company is deemed unable to pay its debts (a) [non compliance with a statutory demand for a debt exceeding 750 presently due] (b) to (d) [unsatisfied execution on judgment debt in terms appropriate to England and Wales, Scotland and Northern Ireland respectively] (e) if it is proved to the satisfaction of the court that the company is unable to pay its debts as they fall due. (2) A company is also deemed unable to pay its debts if it is proved to the satisfaction of the court that the value of the companys assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities.
+A company in the situation described in subsection (1)(e) is often said to be cash flow insolvent.
+A company in the situation described in subsection (2) is often said to be balance sheet insolvent, but that expression is not to be taken literally.
+It is a convenient shorthand expression, but a companys statutory balance sheet, properly prepared in accordance with the requirements of company law, may omit some contingent assets or some contingent liabilities.
+There is no statutory provision which links section 123(2) of the 1986 Act to the detailed provisions of the Companies Act 2006 as to the form and contents of a companys financial statements.
+This appeal is concerned with the construction and effect of section 123(1)(e) and (2) as incorporated into the documentation of an issue of loan notes.
+The statutory provisions were incorporated, with some small modifications, into the conditions applicable to loan notes issued in the course of a securitisation transaction comprising a portfolio of non conforming mortgage loans secured on residential property in the United Kingdom.
+The issuer is Eurosail UK 2007 3BL plc (Eurosail), one of many similar single purpose entities (SPEs) set up by the Lehman Brothers group (but off the balance sheet of any of that groups companies) not long before its collapse.
+Eurosail is the principal respondent to this appeal, and it has a cross appeal on a subsidiary issue.
+The other respondent appearing before this court, BNY Corporate Trustee Services Ltd (the Trustee) is part of the BNY Mellon Group.
+It is the trustee for the holders (Noteholders) of loan notes of various classes issued by Eurosail.
+It has adopted a neutral attitude in the proceedings (as explained in its written case), and has not appeared by counsel before this court.
+But it will, in the event that the appeal succeeds and the cross appeal fails, have an important judgment to make as to material prejudice to the Noteholders interests.
+In 2007 Eurosail (described in the documentation as the Issuer) acquired a portfolio of mortgage loans, secured on residential property in England and Scotland and denominated in sterling, to the principal amount of approximately 650m.
+Most of the mortgages were regarded as non conforming in that they did not meet the lending requirements of building societies and banks.
+This purchase was funded by the issue on 16 July 2007 of loan notes in five principal classes (A, B, C, D and E) comprising 14 different subclasses, some denominated in sterling, some in US dollars and some in euros.
+In the designation of the classes a indicated that the loan was denominated in euros, b US dollars and c pounds sterling.
+The senior (class A) notes were divided into three sub classes, denominated in one of the three currencies, designated and issued as follows: A1b A1c A2a A2b A2c A3a A3c US$200,000,000 102,500,000 64,500,000 US$100,000,000 63,000,000 215,000,000 64,500,000 The B, C, D and E Notes were issued in smaller amounts, with variations in currency but no subclasses having different priorities as between themselves.
+There were also some notes designated as ETc revenue backed notes.
+The total sum raised was just under 660,000,000.
+After payment of costs and expenses of the issue the initial surplus of assets over prospective liabilities (if taken at face value) was quite small.
+The provisions of section 123(1) and (2) of the 1986 Act are incorporated into an important provision in the conditions of issue of the Notes (the Conditions).
+Condition 9(a) (events of default) provides that the Trustee may on the occurrence of any of five specified events (an Event of Default) serve on Eurosail a written notice (an Enforcement Notice) declaring the Notes to be due and repayable.
+In some circumstances the Trustee is obliged to serve such a notice.
+In the absence of an Event of Default the A1 Notes were repayable in 2027 at latest (in fact they have already been repaid, as have the revenue backed notes).
+All the other Notes are repayable in 2045 at latest.
+The Events of Default include (Condition 9(a)(iii)): The Issuer, otherwise than for the purposes of such amalgamation or reconstruction as is referred to in sub paragraph (iv) below, ceasing or, through or consequent upon an official action of the Board of Directors of the Issuer, threatens to cease to carry on business or a substantial part of its business or being unable to pay its debts as and when they fall due or, within the meaning of section 123(1) or (2) (as if the words it is proved to the satisfaction of the court did not appear in section 123(2) of the Insolvency Act 1986 (as that section may be amended from time to time), being deemed unable to pay its debts Under a proviso to Condition 9(a), an occurrence falling within sub paragraph (iii) counts as an Event of Default only if the Trustee certifies to Eurosail that it is, in the Trustees sole opinion, materially prejudicial to the interests of the Noteholders.
+The service of an Enforcement Notice would have immediate and far reaching consequences for all the Noteholders (other than the A1 and ETc Noteholders, whose Notes have already been fully redeemed).
+As described in more detail below, an Enforcement Notice shifts their rights from the regime prescribed in Condition 2(g) (priority of payments prior to enforcement) to the regime prescribed in Condition 2(h) (priority of payments post enforcement).
+Under the latter regime Noteholders of Class A3 (A3 Noteholders) rank pari passu with Noteholders of Class A2 (A2 Noteholders) for repayment of principal.
+That is in contrast with the present regime, under which A2 and A3 Noteholders rank pari passu for interest payments (clause 2(g)(vi)) but A2 Noteholders have priority over A3 Noteholders in receiving repayments of principal out of funds representing principal sums received on the redemption of mortgages in the portfolio (those funds being included in the definition of Actual Redemption Funds in the preamble to the Conditions): Condition 5(b)(i)(2) and (3).
+It is in these circumstances that the construction of section 123(2) of the 1986 Act, as incorporated into Condition 9(a)(iii), has assumed such importance.
+Eurosail, together with those of the A2 Noteholders who appeared below, succeeded before Sir Andrew Morritt C [2010] EWHC 2005 (Ch), [2011] 1 WLR 1200, and the Court of Appeal [2011] EWCA Civ 227, [2011] 1 WLR 2524.
+The Court of Appeal considered that section 123(2) should be interpreted broadly and in line with standards of commercial probity: A balance has to be drawn between the right of an honest and prudent businessman, who is prepared to work hard, to continue to trade out of his difficulties if he can genuinely see a light at the end of the tunnel, and the corresponding obligation to put up the shutters, when, by continuing to trade, he would be doing so at the expense of his creditors and in disregard of those business considerations which a reasonable businessman is expected to observe. (That is a quotation from paragraph 216 of the Report of the Review Committee on Insolvency Law and Practice (1982) (Cmnd 8558), better known as the Cork Report, reflecting the view of Professor Goode; this passage is quoted in para 54 of the judgment of Lord Neuberger MR in the Court of Appeal).
+The appellant A3 Noteholders say that this passage is not in point.
+They have argued for a much stricter construction.
+They have emphasised that a companys inability to pay its debts is no more than a precondition to the exercise of the courts jurisdiction, which is discretionary, to make a winding up order or an administration order.
+The precondition to be satisfied should be, they have argued, transparent and certain, leaving scope for the exercise of discretion on the hearing of the petition.
+There has also been argument as to whether the statutory text (as incorporated in an amended form, and also allowing for possible future legislative amendment) must bear the same meaning as it would in actual winding up proceedings, or whether it can and should, as incorporated, take account of the commercial context of the Conditions.
+Those, in outline summary, are the positions of the opposing parties on the appeal.
+The cross appeal, which is relevant only if the appeal is successful, is concerned with the so called Post Enforcement Call Option (PECO) which is a subsidiary (but technically important) part of the securitisation transaction.
+Before going further into the complexities of the appeal I would comment that the image invoked by Professor Goode of an honest and prudent trader working hard to turn his business round relates, as was pointed out by Mr Moss QC for the appellants, to the law of insolvency as it applies to individuals.
+Even if translated into corporate terms, it has very little bearing on the situation in which Eurosail now finds itself.
+Its present financial position and future prospects are not matters for which Eurosail and its managers merit either praise or criticism, since those matters are almost entirely out of their control.
+They depend on three imponderables: first, (since the currency and interest rate hedging arrangements with the Lehman Brothers group have failed, leaving Eurosail with a claim in its insolvency) the movements of the US dollar and the euro relative to the pound sterling; secondly, movements in LIBOR or equivalent interest rates on loans denominated in those three currencies; and thirdly, the performance of the United Kingdom economy in general, and the United Kingdom residential property market in particular, as influencing the performance of the mortgage portfolio.
+The transaction documents
+The legal documents relating to the securitisation issue are, as Lord Neuberger MR put it, regrettably and forbiddingly voluminous.
+Apart from the Conditions themselves there was a formal trust deed made between the Trustee and Eurosail, a Liquidity Facility Agreement, currency swaps agreements, a Fixed/Floating Swap Agreement, a BBR Swap Agreement and other agreements relating to administrative matters (there is a full list of transaction documents in the definition of that expression in the preamble to the Conditions).
+Several expressions used in the Conditions involve a paperchase to other documents in order to find their definitions.
+Mr Moss opened the documents very lightly, moving rapidly from Condition 9(a)(iii) to concentrate his submissions on the construction of section 123(1) and (2) of the 1986 Act.
+Mr Dicker QC (for Eurosail) went into the Conditions more fully to pave the way for his contextual arguments.
+Without pre judging those arguments I think it is necessary, if only in order to appreciate the consequences of the opposing arguments, to have an outline understanding of how the SPE (which counsel concurred in describing as a closed system or wrapper) operated before the collapse of Lehman Brothers, of how it operates now (after the collapse of Lehman Brothers but before any Enforcement Notice), and of how it would operate after the service of an Enforcement Notice.
+Interest is payable on all unredeemed Notes quarterly in arrears, the first payment having been made on 13 September 2007.
+The annual rate of interest is linked to LIBOR or its dollar or euro equivalents (Condition 4(c)(i)), exceeding that rate by a margin (the Relevant Margin as defined in the preamble) which varies from 0.07% for A1b Notes to 4% for E Notes.
+Mortgage interest received by Eurosail (the principal component in the Available Revenue Fund) cascades down the metaphorical waterfall set out in the 24 sub paragraphs of Condition 2(g) (priority of payments prior to enforcement).
+The first claims on the income stream are for remuneration, charges and expenses; then (sub paragraph (iv)) sums due to the Liquidity Facility Provider, and (sub paragraph (v), but only until the collapse of Lehman Brothers) sums payable under or in connection with the Fixed/Floating Swap Agreement and the BBR Swap Agreement (but not any currency swaps).
+Payments to currency swaps counterparties were linked to interest payments to particular classes of Noteholders, so that payments to counterparties in respect of A Noteholders come into the provision for payment of interest to those Noteholders, which is made pari passu as between all the A sub classes (Condition 2(g)(vi)).
+The next priority (Condition 2(g)(vii)) was for payment off of any A Principal Deficiency (another expression defined in the preamble), but in practice such a deficiency could arise only if all the junior classes of Notes had become valueless.
+Next in the waterfall come similar groups of provisions for payment of interest, sums due to the currency swaps counterparties (and any B Principal Deficiency) in respect of B Notes (Condition 2(g)(viii) and (ix)) and so on for all the other classes (Condition 2(g)(x) to (xv)).
+On 15 September 2008 Lehman Brothers Holdings Inc (LBHI), the guarantor of the swaps counterparty, Lehman Brothers Special Financing Ltd (LBSF) filed for Chapter 11 bankruptcy, as did LBSF on 3 October 2008.
+The swaps were terminated on 13 November 2009.
+Eurosail has made a claim against LBHIs and LBSFs bankrupt estates for about $221,000,000.
+At the time of the hearings below, the claim had not been admitted and no distribution has been made in respect of it.
+During the last three years sterling has depreciated significantly against both the euro and the dollar, but the prevailing low level of interest rates has resulted in a surplus (excess spread) of mortgage interest received by Eurosail, which has enabled it to continue to pay in full the interest on all the outstanding Notes of every class.
+In the meantime, both before and after the collapse of Lehman Brothers, Eurosail received principal sums from time to time as principal secured by the mortgages was repaid, either by way of partial or total redemption by mortgagors, or by enforcement of the security against mortgagors who were in default.
+These sums have been and are at present applied under Condition 5(b)(i) as Actual Redemption Funds, on each date for payment of interest, in repaying the principal of the Notes in the order of priority A1 (now fully repaid), A2, A3, B, and so on.
+There is a proviso to Condition 5(b) under which the order of priority may be altered.
+The first possible variation (proviso (A)) applies if all the A1 and A2 Notes have been redeemed and other (favourable) specified conditions are satisfied: the A3 to E1c Notes then rank pari passu.
+Conversely, under the other variation (proviso (B)), which applies if there is an A Principal Deficiency, priority is granted to the A Notes as a single class ranking pari passu.
+Events of default are regulated by Condition 9.
+The events specified in Condition 9(a) are, apart from that already set out (para 5 above): default in payment for three business days of any principal or interest due on any of the Notes; breach by Eurosail of any of its obligations and failure to remedy the breach (if remediable) for 14 days after notice of the breach given by the Trustee; the making of an order or resolution for the winding up of Eurosail, otherwise than for an approved amalgamation or reconstruction; and the initiation of insolvency or administration proceedings, or the levying of execution (subject to various qualifications which it is unnecessary to set out in detail).
+If the Event of Default is an event under Condition 9(a)(iii) or a breach of
+Eurosails obligations, there is a further requirement that the Trustee shall have certified to Eurosail that such event is, in its sole opinion, materially prejudicial to the interests of the Noteholders.
+For this purpose the Trustee may under the trust deed (as recorded in Condition 2(c)) have regard only to (i) the interests of the A Noteholders if, in the Trustees sole opinion, there is a conflict between the interests of the A Noteholders (or any Class thereof) and the interests of the B Noteholders, the C Noteholders, the D Noteholders and/or the E Noteholders.
+This provision does not indicate how the Trustee is to exercise its discretion in the event of a conflict (such as there now potentially is) between the interests of the A2 Noteholders and the A3 Noteholders.
+If there is an Event of Default (and, in the cases just mentioned, it is materially prejudicial) the Trustee may at its discretion serve an Enforcement Notice on Eurosail.
+Moreover it is obliged to do so if requested or directed (i) by holders of at least 25% of the outstanding Most Senior Class of Notes (defined as meaning the A Noteholders, rather than a subclass of them) or (ii) by an extraordinary resolution of the holders of that class.
+This court was not shown any evidence, and did not hear any submissions, as to whether either of those requirements would be likely to be satisfied in practice.
+On service of the Enforcement Notice the Notes become immediately due and payable and the Noteholders security becomes enforceable (Condition 9(b)).
+Thereupon the order of priority shifts from that in Condition 2(g) to that in Condition 2(h).
+It is unnecessary to go through all the detail of Condition 2(h).
+The all important change is that under Condition 2(h)(v) the available funds are applicable to pay pari passu and pro rata (1) all amounts of interest and principal then due and payable on the A1c Notes, the A2c Notes and the A3c Notes and (2) [subject to provisions about currency swaps that have now lapsed] any interest and principal then due and payable on the A1b Notes, the A2a Notes, the A2b Notes and the A3a Notes, respectively.
+In practical terms, the A2 Notes would no longer have priority, in terms of principal, to the A3 Notes.
+The opening words of condition 2(h) express the Trustees obligation as being to make payments to the extent of the funds available to [Eurosail] and from the proceeds of enforcement of the Security (with exceptions that need not be detailed).
+The penultimate provision of Condition 2(h) provides: The Noteholders have full recourse to [Eurosail] in respect of the payments prescribed above and accordingly are entitled to bring a claim under English law, subject to the Trust Deed, for the full amount of such payments in accordance with Condition 10 (Enforcement of Notes).
+Mr Dicker did not challenge Mr Mosss submission that the opening words do not contradict the penultimate provision, and that seems to be correct.
+The opening words are directed to the Trustees obligations, not to those of Eurosail.
+Condition 5(j) contains the PECO (Post Enforcement Call Option) which is the subject of the cross appeal.
+This option (which has been given effect to as a separate written agreement between the Trustee and a company named or referred to as OptionCo) is regarded in the industry as a means of achieving the effect of limited recourse without the adverse tax consequences that would then have followed from a simple express non recourse provision.
+The operative part of Clause 5(j) is as follows: All of the Noteholders will, at the request of the holder of the Post Enforcement Call Option, sell all (but not some only) of their holdings of the Notes to the holder of the Post Enforcement Call Option, pursuant to the option granted to it by the Trustee (as agent for the Noteholders) to acquire all (but not some only) of the Notes (plus accrued interest thereon), for the consideration of one euro cent per Euro Note outstanding, one dollar cent per Dollar Note outstanding and one penny per Sterling Note outstanding (and for these purposes, each Global Note shall be one Note) in the event that the Security for the Notes is enforced, at any time after the date on which the Trustee determines that the proceeds of such enforcement are insufficient, after payment of all other claims ranking higher in priority to the Notes and pro rata payment of all claims ranking in equal priority to the Notes and after the application of any such proceeds to the Notes under the Deed of Charge, to pay any further principal and interest and any other amounts whatsoever due in respect of the Notes.
+Bankruptcy remoteness
+Bankruptcy remoteness was the expression used by Standard & Poors credit rating agency, and generally in the industry, to describe one criterion for a SPE to obtain a satisfactory credit rating for its loan notes (see European Legal Criteria for Structured Finance Transactions published by Standard & Poors (28 August 2008), and the comments of the Chancellor [2011] 1 WLR 1200, para 8 and Lord Neuberger of Abbotsbury MR [2011] 1 WLR 2524, para 28).
+This is not the place to consider either the reliability of the credit rating agencies judgments on Notes secured by sub prime mortgages, or the influence that their judgments seem to have had in the market (caused, some have suggested, by the industrys general inability to comprehend the risks inherent in its own creations).
+But the notion of bankruptcy remoteness, even if imperfectly understood, underlay many features of the Conditions and the arrangements of which they formed part.
+In developing his contextual argument that this court should (if necessary)
+mould the meaning of section 123(1) and (2), as incorporated into Condition 9(a)(3) so as to take account of commercial realities, Mr Dicker drew particular attention to five features of the arrangements.
+They are set out and discussed in section B2 of Eurosails case.
+Most of them have been mentioned already, at least in passing, but it may be helpful to bring them together in summary form.
+They are relevant not only (arguably) to the issue of construction but also (without room for argument) to determining the likely length of deferment of Eurosails long term liabilities under the Conditions, in the absence of an Event of Default which triggers an Enforcement Notice.
+These points are covered at some length in the witness statements of Mr Mark Filer, a director of Wilmington Trust SP Services (London) Ltd, Eurosails corporate services provider.
+The five salient features of the Conditions and the supporting documentation bearing on the likely deferment of Eurosails obligations in respect of principal and interest are as follows: (1) Condition 2(g) defines Eurosails obligations for payment of interest on the Notes (after remuneration, charges and expenses) in terms of the Available Revenue Fund (see para 12 above).
+If that source is insufficient for payment of interest on any of the Junior Notes (that is, those which are not A Notes) the obligation is deferred (while accruing interest) under Condition 6(i) and (j), if necessary until the final redemption date in 2045. (2) Temporary shortages of income can be provided for by the Liquidity Facility (reimbursements to which have a high order of priority under Condition 2(g)(iv)). (3) As to principal, redemption of Notes (other than the redeemed A1 Notes and the revenue backed Notes) is not due until 2045.
+Until then redemption is limited to the Actual Redemption Funds (as defined in the preamble) which are applied in the appropriate order of priority under Condition 5(b) (see para 14 above). (4) Any loss of principal resulting from default on mortgages is termed a Principal Deficiency and is recorded in the Principal Deficiency Ledger (the detailed provisions as to this are found not in the Conditions but in Clauses 8 and 9 of the Cash/Bond Administration Agreement).
+If there is surplus income from the mortgage payments, the excess spread can be used to reduce or eliminate any Principal Deficiency on whatever is the highest ranking class of Notes with a deficiency.
+Recoupment of a Principal Deficiency takes priority to the payment of interest on lower ranking Notes (see para 12 above). (5) Finally there is the PECO, which is intended to produce the same, or a similar result as an express limited recourse provision (see paras 18 and 19 above).
+The legislation
+This court was taken to the legislative history of sections 122 and 123 of the 1986 Act, and it will be necessary to refer to it in some detail.
+But it may be better to start with the sections themselves.
+The 1986 Act was a consolidating statute which gave effect to the amendments made by the Insolvency Act 1985.
+Section 122(1), as amended, provides seven cases in which a company may be wound up by the court, of which the most important are the last two: (f) the company is unable to pay its debts, (g) the court is of the opinion that it is just and equitable that the company should be wound up.
+Section 123(1) then sets out five cases (stated or summarised in para 1 above) in which a company is deemed unable to pay its debts.
+The four cases in paragraphs (a) to (d) of section 123(1) are true deeming provisions.
+A companys non compliance with a statutory demand, or non satisfaction of execution of a judgment debt, is a matter that can be proved quite simply, usually by a single short witness statement.
+If proved, it establishes the courts jurisdiction to make a winding up order, even if the company is in fact well able to pay its debts.
+If however a debt which has been made the subject of a statutory demand is disputed on reasonable grounds, the petitioner is adopting what has been called a high risk strategy, and the petition may be dismissed with indemnity costs: In Re a Company 12209 of 1991 [1992] BCLC 865, 868 (Hoffmann J).
+Section 123(1)(e) is significantly different in form: if it is proved to the satisfaction of the court that the company is unable to pay its debts as they fall due.
+This is not what would usually be described as a deeming provision.
+It does not treat proof of a single specific default by a company as conclusive of the general issue of its inability to pay its debts.
+Instead it goes to that very issue.
+It may open up for inquiry a much wider range of factual matters, on which there may be conflicting evidence.
+The range is wider because section 123(1)(e) focuses not on a single debt (which under paragraphs (a) to (d) has necessarily accrued due) but on all the companys debts as they fall due (words which look to the future as well as to the present).
+The words as they fall due did not appear in the legislation until the Insolvency Act 1985.
+Similarly the express reference in section 123(2) to the test of the value of the companys assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities did not appear before the Insolvency Act 1985.
+In the present case both the Chancellor and the Court of Appeal treated the present legislative provisions as materially different from those previously in force: [2011] 1 WLR 1200, para 24; [2011] 1 WLR 2524, para 53.
+Yet when this point was raised during the passage of the Insolvency Bill in 1985, the government spokesman in House of Lords, Lord Lucas of Chilworth, stated: Commons Amendment No 458 gives effect to the way in which the courts have interpreted section 518 of the Companies Act [1985]; that was previously section [223] of the 1948 Act.
+We are not seeking to amend the law by this amendment; merely to give effect to that interpretation by the courts, namely, that section 518 contains both a cash flow and a balance sheet test.
+Hansard (HL Debates, 23 October 1985, col 1247) In these circumstances it is necessary to look quite closely at the legislative history.
+In considering it I have derived great assistance from a variety of academic commentary, including an article by Dr Peter Walton, Inability to pay debts: beyond the point of no return? [2013] JBL 212.
+The starting point is sections 79 and 80 of the Companies Act 1862 (25 & 26 Vict, c 89), the general structure of which is similar to that of sections 122 and 123 of the 1986 Act.
+Section 80(4) of the 1862 Act stated the test simply as: Whenever it is proved to the satisfaction of the court that the company is unable to pay its debts.
+However, it is to be noted that under section 158, once a winding up order had been made, all debts payable on a contingency, and all claims against the company, present or future, certain or contingent, ascertained or sounding only in damages, shall be admissible to proof against the company, a just estimate being made, so far as is possible, of the value of all such debts or claims as may be subject to any contingency or sound only in damages, or for some other reason do not bear a certain value.
+So a contingent or prospective creditor could not present a petition, but if another creditor presented a petition and secured a winding up order, contingent and prospective liabilities were admitted to proof.
+In In Re European Life Assurance Society (1869) LR 9 Eq 122 Sir William James V C dismissed a petition for the winding up of a company which had issued large numbers of life policies and annuity contracts, and appeared to be in financial difficulties.
+In an extempore judgment he decided, with very little reasoning, that (p127) inability to pay debts must refer to debts absolutely due.
+He then proceeded to consider at greater length, but to dismiss, the alternative just and equitable ground in section 79(5) of the Companies Act 1862.
+As to this ground he said at p128: And in my view of the law of the case it would be just and equitable to wind up a company like this assurance company if it were made out to my satisfaction that it is, not in any technical sense but, plainly and commercially insolvent that is to say, that its assets are such, and its existing liabilities are such, as to make it reasonably certain as to make the court feel satisfied that the existing and probable assets would be insufficient to meet the existing liabilities.
+I take it that the court has nothing whatever to do with any question of future liabilities, that it has nothing whatever to do with the question of the probability whether any business which the company may carry on tomorrow or hereafter will be profitable or unprofitable.
+That is a matter for those who may choose to be the customers of the company and for the shareholder to consider.
+So here, it seems, the Vice Chancellor was applying a balance sheet test, but only to existing liabilities, in the context of the just and equitable ground.
+He did not refer to any of the authorities that had been cited.
+It may be unfortunate that his judgment has come to be regarded as a leading case.
+Shortly afterwards the law was changed in relation to life offices by the Life Assurance Companies Act 1870 (33 & 34 Vict, c 61), which was effectively the beginning of the modern statutory regulation of life assurance.
+There was no general change until section 28 of the Companies Act 1907, which made an amendment which was then consolidated by the Companies (Consolidation) Act 1908.
+The latter provided in section 130(iv) that a company should be deemed to be unable to pay its debts: if it is proved to the satisfaction of the court that the company is unable to pay its debts, and, in determining whether a company is unable to pay its debts, the court shall take into account the contingent and prospective liabilities of the company.
+The amendment made by the Companies Act 1907 was introduced on the recommendation of the Loreburn Committee (Report of the Company Law Amendment Committee) (1906) (Cd 3052), para 43, which was influenced by section 21 of the Life Assurance Companies Act 1870.
+The amendment is described by Dr Walton [2013] JBL 212, 228 as an abbreviated version of section 21.
+But there is not a very close parallel, since section 21 referred to a life office being insolvent (meaning, apparently, balance sheet insolvent) rather than its being unable to pay its debts.
+But the admission of contingent and prospective liabilities, and especially long term liabilities, must tend to focus attention on balance sheet considerations.
+Thus in In Re Capital Annuities Ltd [1979] 1 WLR 170, 185, Slade J observed: From 1907 onwards, therefore, one species of inability to pay its debts specifically recognised by the legislature as a ground for the making of a winding up order in respect of any company incorporated under the Companies Acts was the possession of assets insufficient to meet its existing, contingent and prospective liabilities.
+Essentially the same wording appeared in section 223(d) of the Companies Act 1948 and in section 518(e) of the Companies Act 1985.
+Two cases decided under section 223(d) call for mention.
+The first is In Re a Company (also referred to as Bond Jewellers) [1986] BCLC 261, decided by Nourse J on 21 December 1983.
+Like In Re European Life Assurance Society, it was an extempore judgment given without citation of authority, in order to avoid delay, but it has been much cited.
+It was referred to in both Houses of Parliament during the committee stages of the Insolvency Bill.
+It concerned a tenant company with a propensity for postponing payment of its debts until threatened with litigation.
+Nourse J felt unable to make an order under section 223(d), and considered, but ultimately did not make an order, on the just and equitable ground in section 222(f).
+The case is of interest as illustrating (at p 263) that the phrase as they fall due, although not part of the statutory text, was understood to be implicit in section 223(d).
+It is also of interest for the judges observation on the second point in section 223(d) (now embodied, in different words, in section 123(2) of the 1986 Act): Counsel says that if I take into account the contingent and prospective liabilities of the company, it is clearly insolvent in balance sheet terms.
+So indeed it is if I treat the loans made by the associated companies as loans which are currently repayable.
+However, what I am required to do is to take into account the contingent and prospective liabilities.
+That cannot mean that I must simply add them up and strike a balance against assets.
+In regard to prospective liabilities I must principally consider whether, and if so when, they are likely to become present liabilities.
+The second case, Byblos Bank SAL v Al Khudhairy [1987] BCLC 232, was a considered judgment of Nicholls LJ (with whom Slade and Neill LJJ agreed) delivered after 11 days of argument.
+It concerned the disputed validity of the appointment of a receiver in June 1985, before either the Companies Act 1985 or the Insolvency Act 1985 was in force.
+The ostensible ground for appointment of the receiver was not made out, but the bank relied on a new ground, section 223(d).
+Nicholls LJ observed (p 247): Construing this section first without reference to authority, it seems to me plain that, in a case where none of the deeming paras (a), (b) or (c) is applicable, what is contemplated is evidence of (and, if necessary, an investigation into) the present capacity of a company to pay all its debts.
+If a debt presently payable is not paid because of lack of means, that will normally suffice to prove that the company is unable to pay its debts.
+That will be so even if, on an assessment of all the assets and liabilities of the company, there is a surplus of assets over liabilities.
+That is trite law.
+It is equally trite to observe that the fact that a company can meet all its presently payable debts is not necessarily the end of the matter, because para (d) requires account to be taken of contingent and prospective liabilities.
+Take the simple, if extreme, case of a company whose liabilities consist of an obligation to repay a loan of 100,000 one year hence, and whose only assets are worth 10,000.
+It is obvious that, taking into account its future liabilities, such a company does not have the present capacity to pay its debts and as such it is unable to pay its debts.
+Nicholls LJ then referred to the judgment of James V C in In Re European Life Assurance Society LR 9 Eq 122, including the passage quoted at para 28 above, and commented (p 248): In my view the exercise described by James V C is the exercise required to be done under section 223 (now section 518 of the 1985 Act).
+He also referred to the decisions of Slade J in In Re Capital Annuities Ltd [1979] 1 WLR 170 and Nourse J in In Re A Company [1986] BCLC 261 as consistent with the views he had expressed.
+In my view these authorities go quite a long way to establishing that neither the notion of paying debts as they fall due, nor the notion of balance sheet insolvency, was unfamiliar before the enactment of the Insolvency Act 1985.
+But petitions by contingent or prospective creditors have been rare even after the repeal in 1986 of the standard requirement for such a creditor to provide security for costs.
+One reason for that is no doubt the difficulty of quantifying contingent and prospective liabilities to the satisfaction of the court.
+Another may be the fact that well advised commercial lenders will insist on contractual conditions under which deferred liabilities are accelerated in the event of the borrower getting into financial difficulties.
+The far reaching reforms effected by the Insolvency Acts of 1985 and 1986, together with related subordinate legislation, were influenced by the report of the Cork Committee, published in 1982.
+One of its recommendations (para 535) was that the sole ground upon which the court may make an insolvency order in respect of a debtor, whether individual or corporate, will be that the debtor is unable to pay his or its debts.
+The Committee proposed three cases in which the debtor would be deemed to be insolvent and unable to pay his or its debts.
+The first two corresponded to the cases in section 123(1)(a) to (d) of the 1986 Act.
+The third case was: (c) Where the applicant is a contingent or prospective creditor to whom the debtor is or may become indebted in a sum of not less than the prescribed amount, being a debt not yet presently due and payable, and it is proved to the satisfaction of the court that the ultimate repayment of the debt is in jeopardy because the debtors liabilities, including contingent and prospective liabilities, exceed the debtors assets.
+This proposal limited the balance sheet insolvency test to applications by contingent or prospective creditors whereas the Byblos Bank case suggested that it was also relevant to the payment of debts as they fall due.
+That point was noted by Briggs J in his perceptive judgment In Re Cheyne Finance plc (No 2) [2008] Bus LR 1562.
+He referred at paras 42 43 to similar language (as they become due) used in Australian companies legislation, which until 1992 had a single test based on an inability to pay debts as they become due a phrase which looks to the future, as Griffith CJ said in Bank of Australasia v Hall (1907) 4 CLR 1514, 1527.
+There is a good deal of later Australian authority, mentioned in the judgment of Briggs J, to the same effect.
+In Re Cheyne Finance Plc (No 2) was concerned with a security trust deed which (in contrast to Condition 9(a)(iii) in the present appeal) incorporated into its definition of insolvency event the terms of section 123(1), but not section 123(2).
+It was therefore necessary to consider how far section 123(1)(e) was concerned, not only with debts that were immediately payable, but also with those that would be payable in the future.
+Briggs J decided, rightly in my view, that that is what section 123(1)(e) requires (para 56): In my judgment, the effect of the alterations to the insolvency test made in 1985 and now found in section 123 of the 1986 Act was to replace in the commercial solvency test now in section 123(1)(e), one futurity requirement, namely to include contingent and prospective liabilities, with another more flexible and fact sensitive requirement encapsulated in the new phrase as they fall due.
+Briggs J considered (para 35), again rightly in my view, that the Byblos Bank case was a case about ability to pay debts as they became due, but that the Court of Appeal recognised that balance sheet insolvency is not irrelevant to that issue.
+The practical effect of section 123
+There is no doubt that, as a matter of form, the statutory test for a company being unable to pay its debts is materially different (as the Chancellor and the Court of Appeal observed) from the position under the Companies Act 1985.
+Section 123(1)(e) introduced the words as they fall due and section 123(2) has introduced a direct reference to a companys assets and liabilities.
+These two provisions, both labelled as deeming provisions (though neither is obviously of that character) stand side by side in section 123(1)(e) and section 123(2) with no indication of how they are to interact.
+It seems likely that part of the explanation lies in the history of the passage through Parliament of the Insolvency Bill in 1985, and the lengthy and interrupted process of review and consultation which had preceded it.
+This process began as long ago as October 1976 when the Secretary of State announced his intention of setting up what became the Review Committee chaired by Mr (later Sir) Kenneth Cork.
+It produced an interim report in October 1979 (after a change of government) and its final report in 1982.
+The whole protracted process is described by Professor Ian Fletcher QC in his Law of Insolvency 4th ed (2009), pp 16 22.
+He explains how there was no official reaction to the final report until a spate of financial scandals early in 1984: At relatively short notice the government White Paper, referred to above, was published in February 1984 together with an indication that legislation was imminent.
+In consequence, very little time was allowed for interested parties to submit comments before the drafting of the Insolvency Bill was embarked upon, and the Bill itself was introduced in the House of Lords on 10 December 1984.
+This regrettable mishandling of the period of preparation for the first major overhaul of insolvency law for over 100 years cannot but be lamented.
+The inadequate manner in which consultation was conducted, coupled with the near total lack of any form of public debate about the issues of policy and principle at the heart of any radical recasting of insolvency law, were an inauspicious prelude to what was to become a most contentious and confused episode of legislative history.
+Thereby, what ought to have been a largely non controversial, non Party Bill became the subject of highly dramatic proceedings before both Houses, and also in Committee, and damage was unquestionably inflicted upon the ultimate quality of a highly technical piece of legislation whose detailed provisions were but vaguely understood by all but a minority of those participating in its enactment, but whose social and economic importance was nonetheless immense.
+The Bills deficiencies, due to haste in preparation, together with the vicissitudes of the parliamentary process, resulted in a quite exceptional number of amendments being tabled to the Insolvency Bill, estimated to have approached 1,200 by the time of Royal Assent.
+A high proportion of these amendments were tabled by the Government itself, and many were adopted virtually without debate during the closing stages of proceedings. (para 1 034)
+Despite the difference of form, the provisions of section 123(1) and (2) should in my view be seen, as the Government spokesman in the House of Lords indicated, as making little significant change in the law.
+The changes in form served, in my view, to underline that the cash flow test is concerned, not simply with the petitioners own presently due debt, nor only with other presently due debt owed by the company, but also with debts falling due from time to time in the reasonably near future.
+What is the reasonably near future, for this purpose, will depend on all the circumstances, but especially on the nature of the companys business.
+That is consistent with Bond Jewellers, Byblos Bank and Cheyne Finance.
+The express reference to assets and liabilities is in my view a practical recognition that once the court has to move beyond the reasonably near future (the length of which depends, again, on all the circumstances) any attempt to apply a cash flow test will become completely speculative, and a comparison of present assets with present and future liabilities (discounted for contingencies and deferment) becomes the only sensible test.
+But it is still very far from an exact test, and the burden of proof must be on the party which asserts balance sheet insolvency.
+The omission from Condition 9(a)(iii) of the reference to proof to the satisfaction of the court cannot alter that.
+Whether or not the test of balance sheet insolvency is satisfied must depend on the available evidence as to the circumstances of the particular case.
+The circumstances of Eurosails business, so far as it can be said to have a business at all, are quite unlike those of a company engaged in normal trading activities.
+There are no decisions to be made about choice of suppliers, stock levels, pricing policy, the raising of new capital, or other matters such as would constantly engage the attention of a trading companys board of directors.
+Instead Eurosail is (in Mr Mosss phrase) in a closed system with some resemblance to a life office which is no longer accepting new business.
+The only important management decision that could possibly be made would be to attempt to arrange new hedging cover in place of that which was lost when Lehman Brothers collapsed.
+To that extent Eurosails present assets should be a better guide to its ability to meet its long term liabilities than would be the case with a company actively engaged in trading.
+But against that, the three imponderable factors identified in para 9 above currency movements, interest rates and the United Kingdom economy and housing market are and always have been outside its control.
+Over the period of more than 30 years until the final redemption date in 2045, they are a matter of speculation rather than calculation and prediction on any scientific basis.
+At first instance the Chancellor started with three propositions derived from the case law (paras 29 to 32): that the assets to be valued are the present assets of the company; that contingent and prospective liabilities are not to be taken at their full face value; and that: Taking account of must be recognised in the context of the overall question posed by the subsection, namely whether the company is to be deemed to be insolvent because the amount of its liabilities exceeds the value of its assets.
+This will involve consideration of the relevant facts of the case, including when the prospective liability falls due, whether it is payable in sterling or some other currency, what assets will be available to meet it and what if any provision is made for the allocation of losses in relation to those assets. (para 32) He then set out four reasons (paras 34 to 37) for concluding (para 38) that the value of Eurosails assets exceeded its liabilities, having taken account of its contingent and prospective liabilities to such extent as appears to be necessary at this stage.
+In the Court of Appeal Lord Neuberger MR did not disagree with anything in the Chancellors judgment so far as it related to statutory construction.
+He did however go further in his detailed discussion of section 123(2).
+He observed (para 44): In practical terms, it would be rather extraordinary if section 123(2) was satisfied every time a companys liabilities exceeded the value of its assets.
+Many companies which are solvent and successful, and many companies early on in their lives, would be deemed unable to pay their debts if this was the meaning of section 123(2).
+Indeed, the issuer is a good example of this: its assets only just exceeded its liabilities when it was formed, and it was more than possible that, even if things went well, it would fall from time to time within the ambit of section 123(2) if the appellants are right as to the meaning of that provision.
+Lord Neuberger MR developed this at paras 47 to 49 of his judgment: 47.
+More generally, I find it hard to discern any conceivable policy reason why a company should be at risk of being wound up simply because the aggregate value (however calculated) of its liabilities exceeds that of its assets.
+Many companies in that position are successful and creditworthy, and cannot in any way be characterised as unable to pay [their] debts.
+Such a mechanistic, even artificial, reason for permitting a creditor to present a petition to wind up a company could, in my view, only be justified if the words of section 123(2) compelled that conclusion, and in my opinion they do not. 48.
+In my view, the purpose of section 123(2) has been accurately characterised by Professor Sir Roy Goode in Principles of Corporate Insolvency Law, 3rd ed (2005).
+Having referred to section 123(1)(e) as being the cash flow test and to section 123(2) as being the balance sheet test, he said this, at para 4 06: If the cash flow test were the only relevant test [for insolvency] then current and short term creditors would in effect be paid at the expense of creditors to whom liabilities were incurred after the company had reached the point of no return because of an incurable deficiency in its assets. 49.
+In my judgment, both the purpose and the applicable test of section 123(2) are accurately encapsulated in that brief passage.
+Toulson LJ agreed with Lord Neuberger MR but expressed himself in a more guarded way.
+He agreed that Professor Sir Roy Goode had rightly discerned the underlying policy (para 115) but added (para 119) that Professor Goodes reference to a company having reached the point of no return because of an incurable deficiency in its assets illuminates the purpose of the subsection but does not purport to be a paraphrase of it.
+He continued: Essentially, section 123(2) requires the court to make a judgment whether it has been established that, looking at the companys assets and making proper allowance for its prospective and contingent liabilities, it cannot reasonably be expected to be able to meet those liabilities.
+If so, it will be deemed insolvent although it is currently able to pay its debts as they fall due.
+The more distant the liabilities, the harder this will be to establish.
+I agree with what Toulson LJ said here, and with great respect to Lord Neuberger MR I consider that the point of no return should not pass into common usage as a paraphrase of the effect of section 123(2).
+But in the case of a companys liabilities that can as matters now stand be deferred for over 30 years, and where the company is (without any permanent increase in its borrowings) paying its debts as they fall due, the court should proceed with the greatest caution in deciding that the company is in a state of balance sheet insolvency under section 123(2).
+Reasoning in the courts below
+Sir Andrew Morritt C, having set out some general propositions as to the effect of section 123 (1)(e) and (2) (in paras 29 to 32 of his judgment, summarized above), rejected the A3 Noteholders submission that Eurosail was plainly insolvent for the purposes of section 123(2) as applied by Condition 9(a)(iii).
+He relied on four points, set out in paras 34 to 37 of his judgment.
+First, Eurosails claims in the insolvencies of LBHI and LBSF, though not admitted, could not be ignored.
+The secondary market indicated that the claim was worth 35% to 37% of US$221m (that is, a value of the order of 60m).
+Second, a large part of the total deficiency that was claimed to exist was due to conversion into sterling at the prevailing spot rate of liabilities not due for payment until 2045.
+Third, the future liabilities were fully funded in the limited sense that deficiencies resulting from mortgage defaults reduced Eurosails liability to the Noteholders through the operation of the Principal Deficiency Ledger.
+Fourth, the Chancellor was able to infer that a calculation of the then present values of assets and liabilities would not show a deficiency, since Eurosail was well able to pay its debts as they fell due, there was no deficiency on the Principal Deficiency Ledger, and projected redemptions of each class of A Notes were in advance of the maturity dates.
+In the Court of Appeal counsel appearing for the A2 Noteholders did not feel able to give complete support to the Chancellors second point, and Lord Neuberger MR accepted (para 67) the submission of counsel for the appellants: As Mr Sheldon [then appearing for the A3 Noteholders] said, one has to value a future or contingent liability in a foreign currency at the present exchange rate.
+By definition, that is the present sterling market value of the liability.
+I would also respectfully question the Chancellors third point.
+The Chancellor had earlier in his judgment, at para 13, referred to clause 8 of the Cash/Bond Administration Agreement, which provides for the maintenance of Principal Deficiency Ledgers.
+That seems to be the basis of his point about liabilities being self cancelling.
+But clause 8 seems to be concerned with no more than an accountancy exercise, not with a permanent extinction of liabilities.
+It operates to defer liabilities for principal until the final redemption date, if circumstances require, and provided that an Enforcement Notice is not given in the meantime.
+But Condition 2(h) provides for Eurosail to be liable on a full recourse basis post enforcement, as already noted (para 18 above).
+Lord Neuberger MR did not accept that a forecast deficiency based on then current exchange rates could be dismissed as entirely speculative.
+He started (para 63) from Eurosails audited accounts for the year ending 30 November 2009, which showed a net liability of 74.557m.
+He noted (paras 63 to 74) that this figure required two substantial amendments (one for the Lehman Brothers claim, and the other for the full recourse factor) which, ironically and coincidentally, virtually cancel each other out (para 69).
+So his final discussion and conclusion (paras 75 to 83) starts with an assumed deficiency of the order of 75m.
+Against that Lord Neuberger MR set three factors.
+The first was that a deficiency of 75m, with an aggregate principal sum of just over 420m outstanding on the mortgages, was less than 17% of the assets.
+Secondly, the deficity was largely based on the assumption that exchange rates would remain constant (para 76): Of course, they are as likely to move in an adverse direction as they are to move in a favourable direction, but the volatility of those rates tell against the appellants given that they have to establish that the issuer has reached the point of no return.
+Thirdly, the court was looking a long way ahead (para 78): Not only do all the unredeemed notes have a final redemption date in 2045, but it appears from the evidence that the weighted average term of the remaining mortgages is in the region of 18 years, and the rate of early redemption has slowed significantly and is likely, according to expert assessment, to remain low for the time being.
+Lord Neuberger MR accepted that there was a real possibility that, if no Enforcement Notice was served, events might turn out to the disadvantage of the A3 Noteholders (para 79): However, as mentioned, a future or contingent creditor of a company can very often show that he would be better off if the company were wound up rather than being permitted to carry on business.
+In a commercially sensible legal system that cannot of itself justify the creditor seeking to wind up the company.
+Toulson and Wilson LJJ agreed with this reasoning.
+Toulson LJ emphasised the importance of the liabilities being distant in time (para 119, quoted in para 42 above).
+The appeal was therefore dismissed, as was the cross appeal.
+Conclusions
+The crucial issue, to my mind, is how far the Court of Appeals conclusion depended on the point of no return test.
+For reasons already mentioned, I consider that that is not the correct test, if and in so far as it goes beyond the need for a petitioner to satisfy the court, on the balance of probabilities, that a company has insufficient assets to be able to meet all its liabilities, including prospective and contingent liabilities.
+If it means no more than that, it is unhelpful, except as illuminating (as Toulson LJ put it) the purpose of section 123(2).
+In my view the Court of Appeal would have reached the same conclusion without reference to any point of no return test; and I would myself reach the same conclusion.
+Eurosails ability or inability to pay all its debts, present or future, may not be finally determined until much closer to 2045, that is more than 30 years from now.
+The complex documentation under which the loan notes were issued contains several mechanisms (identified in para 22(1) to (4) above, the PECO being disregarded for present purposes) for ensuring that liabilities in respect of principal are, if necessary, deferred until the final redemption date, unless the post enforcement regime comes into operation.
+The movements of currencies and interest rates in the meantime, if not entirely speculative, are incapable of prediction with any confidence.
+The court cannot be satisfied that there will eventually be a deficiency.
+I would therefore dismiss the appeal.
+I would also dismiss the cross appeal, for the same reasons as were given by the Chancellor and the Court of Appeal.
+It is not necessary to consider Mr Dickers arguments based on supposed inconsistencies and commercial realities, except to say that they would have encountered serious difficulties in the light of this courts decision in Enviroco Ltd v Farstad Supply A/S [2011] UKSC 16, [2011] 1 WLR 921: see the judgment of Lord Collins of Mapesbury, with which the other members of the court agreed, at paras 51 and 52.
+The loan notes documentation did indeed contain some provisions (identified in paras 128 to 134 of Eurosails case) which are inconsistent with the post enforcement regime being triggered by a temporary deficiency of assets.
+But the court might well have taken the view, on documents of such complexity, that the draftsman had simply failed to grasp all its many and various implications, and that it was not for the court to rewrite the documents for the parties.
+LORD HOPE
+I would dismiss the appeal for the reasons given by Lord Walker.
+I would also dismiss the cross appeal, which concerns the effect of the PECO on the application of section 123(2) of the 1986 Act as incorporated into Condition 9(a)(iii).
+The question which it raises no longer needs to be answered as the Noteholders appeal on the question whether Eurosail (the Issuer) was unable to pay its debts was not successful.
+But Sir Andrew Morritt C [2011] 1 WLR 122 gave his view on it in paras 39 44 of his judgment, and so too did Lord Neuberger MR in the Court of Appeal [2011] 1 WLR 2524 in paras 84 100.
+A PECO is widely used in securitisation transactions of the kind that was entered into in this case, and we have been told that the question is of some importance to the securitisation market more generally.
+So it is appropriate that we should give our reasons for agreeing with the Chancellor and the Court of Appeal that it has no effect on the way the liability of the Issuer to the Noteholders for the purposes of the default provision in Condition 9(a)(iii) is to be calculated.
+The Trustee entered into a PECO Agreement on behalf of the Noteholders on 16 July 2007, which is the same date as that on which the Notes were issued.
+By Clause 3.1 it granted an option to a company called Eurosail Options Ltd (referred to in the Agreement as OptionCo): to acquire all (but not some only) of the Notes (plus accrued interest thereon) in the event that the Security for the Notes is enforced and the Trustee, after the payment of the proceeds of such enforcement, determines that the proceeds of such enforcement are insufficient, after payment of all claims ranking in priority to or pari passu with the Notes pursuant to the Deed of Charge, to pay in full all principal and/or interest and any other amounts whatsoever due in respect of the Notes.
+The Trustee shall promptly after the Security is enforced and the proceeds of such enforcement are paid, make a determination of whether or not there is such an insufficiency.
+If the Trustee determines that there is such an insufficiency the Trustee shall forthwith give notice (the Insufficiency Notice) of such determination to OptionCo and the Issuer.
+Clause 3.1 has to be read together with Condition 5(j) (see para 19, above), which provides that each Noteholder will, on the exercise of the option conferred on OptionCo, sell to the company the whole of his holding of notes for the nominal consideration for which the PECO provides.
+It also has to be read together with the Event of Default described in Condition 9(a)(iii): see para 5, above.
+Under that provision a default occurs, among other things, in the event of the Issuer: being unable to pay its debts as and when they fall due or, within the meaning of section 123(1) or (2) (as if the words it is proved to the satisfaction of the court did not appear in section 123(2)) of the Insolvency Act 1986 (as that section may be amended from time to time), being deemed unable to pay its debts.
+The Prospectus at p 26 contains this explanation of the effect of these provisions, under the heading Considerations related to the Instruments, for prospective purchasers: Although the Instruments will be full recourse obligations of the Issuer, upon enforcement of the security for the Instruments, the Trustee will, in practice, have recourse only to the Loans and Collateral Security, and to any other assets of the Issuer then in
+existence as described in this document
+The purpose of a PECO is to achieve bankruptcy remoteness for the issuer.
+Its aim is to prevent the issuer from being susceptible to insolvent winding up proceedings by ensuring so far as possible that, if its assets prove to be insufficient to meet its liabilities, a director of the issuer will not instigate bankruptcy proceedings in respect of it.
+Bankruptcy remoteness is one of the criteria used by the rating agencies which issuers of notes seek to satisfy so that their instruments will achieve the highest possible credit rating.
+That criterion is satisfied in other jurisdictions by provisions which limit the rights of noteholders against the issuer to the value of the issuers assets.
+Until recent tax legislation altered the position, limited recourse provisions of that kind gave rise to UK stamp duty reserve tax at the rate of 1.5% of the amount subscribed for them.
+As the Chancellor explained in para 40, the PECO is designed to achieve the same result as limited recourse provisions, but without the adverse tax consequences.
+The Issuer accepts that, as a matter of contract, the liabilities were unlimited in recourse.
+But it maintains that the commercial reality was that the liabilities alleged to be the debts that the issuer was unable to pay to the Noteholder were liabilities which it would never have to meet.
+In the event that the assets of the Issuer were exhausted, any claim that the Noteholder had against the Issuer would be assigned to the option holder.
+That, it is said, would bring an end to the claim.
+So it would be wrong to treat the Issuer as falling within section 123(2) as incorporated into Condition 9(a)(iii) on the ground that it was unable to pay its debts, as in practice it was never intended or expected that the liabilities would be paid except out of the underlying assets available to the Issuer.
+The soundness of this approach depends however on whether, in law, the PECO affects the liability of the Issuer to the Noteholder.
+In answering this question it is important to appreciate that the question is not whether the Issuer should actually be wound up on the grounds described in section 123(2), but whether its financial position is such that it falls within that subsection for the purposes of the default provision in Condition 9(a)(iii).
+The answer to that question is to be found by examining the wording of the Condition in the context of the provisions of the transaction documents as a whole.
+Does the PECO in any way alter the conclusion that would otherwise be drawn that the Issuers assets were less than its liabilities and that it was unable to pay its debts?
+The Chancellor based his judgment that it did not on the wording of section 123(2), as amended for the purposes of Condition 9(a)(iii).
+He held that if, in the application of that subsection the court concluded that the value of the companys assets was less than the amount of its liabilities, taking into account its contingent and prospective liabilities, the PECO had no effect on those liabilities at all: para 43.
+As he put it, the liabilities of the Issuer remain the same, whether or not there is a PECO or, if there is, whether or not the call option has been exercised.
+Unless and until the option holder releases the Issuer from all further liability, which it is under no obligation to do, the liability of the Issuer is unaffected.
+Lord Neuberger reached the same conclusion, but for fuller reasons: see paras 92 97.
+He said that, reading the relevant provisions of the documents together, they established that the Issuers liability to the Noteholders was to be treated as a liability of full recourse at least until the security was enforced and, arguably, until the option was exercised and the transfer to the option holder was completed.
+There was the statement in the Prospectus mentioned in para 54, above.
+It suggested a two stage process, under which the Issuers liability was treated initially as full recourse and liability would become limited recourse only on enforcement of the security.
+There was the closing part of clause 6.7 of the Deed of Charge which, having restricted the ability of the Trustee to enforce the Noteholders rights on enforcement of the Security beyond the Issuers assets, provided that this shall not apply to and shall not limit the obligations of the Issuer to the [Noteholders] under the Instruments and this Deed.
+And there was the provision in Condition 2(h), which stated in terms that the Noteholders had full recourse to the Issuer in respect of payments due and that they were entitled to bring a claim under English law for the full amount of such payments.
+Finally Lord Neuberger referred to the wording of Condition 9(a)(iii) itself.
+It was hard to see why any reference should be made in that Condition to section 123(2) if the Noteholders rights against the Issuer were not to be treated as full recourse until the enforcement of the security.
+He also said that there was nothing commercially insensible in the conclusion that, for the purpose of Condition 9(a)(iii), the Noteholders rights against the Issuer were treated as being of full recourse, notwithstanding the PECO: para 100.
+The A3 Noteholders submit that the key operative provision is Clause 3.1 of the PECO itself.
+It makes it plain that it does not have the effect of limiting the liability of the Issuer in respect of the Notes to the value of the Issuers assets.
+Its reference to there being an insufficiency of assets after enforcement to meet whatever is due in respect of the Notes is a clear indication that it contemplates that the amount of the liabilities that the Notes have created must be capable of exceeding the value of the assets of the Issuer.
+Then there is the time at which the option is exercisable.
+It is not said to have any operative effect at all prior to enforcement of the security.
+So at all times prior to its exercise the Noteholders remain entitled to payment in accordance with the Conditions.
+And even when exercised all it does is provide a mechanism by which the right to be paid under the Notes is assigned to OptionCo.
+As the Issuer relies on commercial reality rather than legal form, the legal effect of the documents is not really in dispute.
+The common intention of the parties is said by the Issuer to be quite different.
+Its argument is that, as inclusion of a PECO rather than a contractual limited recourse provision was done solely for tax reasons, it was not intended or understood to alter the commercial nature, effect and operation of the asset backed securitisation.
+As a matter of contract the liabilities were unlimited in recourse.
+As a matter of commercial substance and in practice, they were the equivalent of a provision by which the rights of Noteholders were expressly limited.
+The Issuers case is that its future obligations to pay principal under the Notes should be taken into account only to the extent that its assets were sufficient to pay for them.
+As Mr Dicker QC for the Issuer put it at the end of his argument, legal form should not triumph over commercial substance.
+I do not think that it is possible to distinguish the intended commercial effect of these provisions from their legal effect in this way.
+The exercise that Condition 9(a)(iii) predicates is the quantification of the amount of the Issuers assets and liabilities in order to determine whether there has been an Event of Default.
+The legal effect and the commercial effect of the PECO, on its true analysis, both point in the same direction.
+It has no effect, for the purpose of that quantification, on the amount of the Issuers liabilities.
+To limit those liabilities as the Issuer contends would contradict the parties clearly expressed commercial intention as found in the contractual documents.
+The fact that the economic result of the PECO may be the same as if the Noteholders right of recourse had been limited to the Issuers assets is beside the point.
+It can be expected to achieve bankruptcy remoteness as effectively.
+But it would not be in accordance with the true meaning of the documents to treat the two methods as if they had the same effect in law.
+when the provisions are open to different interpretations.
+The court should adopt the more, rather than the less, commercial construction: Rainy Sky SA v Kookmin Bank [2011] UKSC 50, [2011] 1 WLR 2900.
+But, for the reasons given by the Chancellor and Lord Neuberger MR, the meaning to be given to the language that the parties used in this case is not open to doubt.
+The suggestion that to give effect to that meaning is to surrender to legal form over commercial substance amounts, in effect, to an invitation to depart from the settled role of commercial good sense.
+Its role is to find out what the parties meant when they entered into the arrangement, not to replace it with something which is not to be found in the language of the documents at all.
+The ultimate aim in construing provisions of the kind that are in issue in this case, as it is when construing any contract, is to determine what the parties meant by the language that they have used.
+Commercial good sense has a role to play
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+This is a reference of a devolution issue which has arisen in proceedings in the Sheriff Court of Lothian and Borders at Edinburgh.
+It was required by the Lord Advocate under paragraph 33 of Schedule 6 to the Scotland Act 1998.
+The respondent, to whom I shall refer as B as his case has not yet gone to trial, has been charged on summary complaint with housebreaking with intent to steal and having in his possession a controlled drug contrary to section 5(2) of the Misuse of Drugs Act 1971.
+He pled not guilty and was admitted to bail.
+A trial diet was fixed for 10 October 2011.
+By letter dated 1 August 2011 his solicitor gave notice of his intention to raise a devolution issue in terms of paragraph 1 of Schedule 6 to the Scotland Act 1998.
+The issue was described in his Devolution Minute in these terms: (a) Article 6(3)(c) of the European Convention on Human Rights provides: Everyone charged with a criminal offence has the following minimum rights: To defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require. (b) That in the Minuters case he was interviewed by the police.
+The Minuter was offered legal assistance prior to the interview but declined.
+This was done without recourse to a solicitor.
+Access to a solicitor should be automatic when someone has been detained in police custody. (c) Accordingly the Minuters right to a fair trial under article 6 has been breached if the Crown choose to lead evidence of the Minuters police interview.
+The Lord Advocate understood the propositions in para 2(b) of the Minute to have been based on the observations of the High Court of Justiciary in Jude v HM Advocate [2011] HCJAC 46, 2011 SLT 722.
+In para 34 of his opinion, with which all the other members of the Appeal Court agreed, the Lord Justice Clerk (Gill) said that he could not see how a person could waive his right to legal advice when he had not had access to legal advice on the point.
+In view of the importance of the question raised by this observation the Lord Advocate invited the sheriff to refer the issue to this court, which the sheriff has now done.
+The reference
+The questions that were referred by the sheriff did not appear to focus the issue in sufficiently precise terms.
+So, at the Courts request, an amended version was agreed between the parties.
+The following are the questions in their amended form: (i) whether it would necessarily be incompatible with article 6(1) and 6(3)(c) of the European Convention on Human Rights for the Lord Advocate to lead and rely upon evidence of answers given during a police interview of a suspect in police custody (whether voluntarily, as a detainee under section 14 of the Criminal Procedure (Scotland) Act 1995 or after arrest and prior to charge) who, before being interviewed by the police: had been informed by a police officer of his Salduz/article 6 rights of access to legal advice; and without having received advice from a lawyer, had stated that he did not wish to exercise such rights. (ii) whether it would be compatible with the respondents rights under articles 6(1) and 6(3)(c) of the ECHR for the Lord Advocate, at the trial of the respondent, to lead and rely upon evidence of answers given by the respondent during a police interview conducted with him between 10 and 11 July 2011 in circumstances where, prior to such interview taking place, the respondent was informed by a police officer of his Salduz/article 6 rights of access to legal advice and, without having received advice from a lawyer, indicated: verbally to police officers prior to being interviewed; in writing by signing a solicitor access recording form (SARF); and verbally at the start of the interview that he did not wish to exercise such rights.
+The first question raises an issue of principle, which is focused by the word necessarily.
+The second question is directed to the facts of this case.
+The Convention issue which it raises, and to which the argument was directed, is focused by the words without having received advice from a lawyer.
+I agree with Lord Hamilton that the task for this court is to identify as best it can the requirements which the Strasbourg court has set for the making of an effectual waiver of Convention rights (see para 78, below).
+I emphasise the words the Strasbourg court, as they indicate the proper limits of the jurisdiction that was given to this court by the Scotland Act 1998.
+It may be, as Lord Kerr makes clear in his judgment, that the way interviews with suspects are currently conducted in Scotland is in need of improvement.
+But I do not think that this should be done by giving a more generous scope to the Convention rights than that which is to be found in the jurisprudence of the Strasbourg court.
+The structure of the Scotland Act, section 57(2) of which places such a tight fetter on the powers of the Lord Advocate as head of the system of criminal prosecution in Scotland, is an important factor in the determination of how we should perform our task.
+As Lord Rodger of Earlsferry declared in HM Advocate v Scottish Media Newspapers Ltd 2000 SLT 331, 333, the Lord Advocate simply has no power to move the court to grant any remedy which would be incompatible with the European Convention on Human Rights: see also HM Advocate v Robb 2000 JC 127, 131, per Lord Penrose.
+This is in sharp contrast to the position under the Human Rights Act 1998, section 8(1) of which provides that in relation to an act of a public authority which it finds unlawful the court may grant such relief or remedy as it considers just and appropriate.
+The absolute nature of the fetter which section 57(2) imposes affects cases in the past (other than closed cases) as well as this one, and it will affect all cases in the future.
+This makes it especially important for us to avoid laying down fixed rules that may impede the prosecution of crime in the public interest, unless they have been clearly identified as such by the court in Strasbourg.
+We are, after all, dealing here with implied rights which are open, in principle, to modification or restriction so long as this is not incompatible with the right to a fair trial.
+It is not the purpose of article 6 to make it impracticable to bring those who are accused of crime to justice: Montgomery v HM Advocate 2001 SC (PC) 1, 29, [2003] 1 AC 641, 673; Dyer v Watson 2002 SC (PC) 89, 133, [2004] 1 AC 379, 429 per Lord Rodger of Earlsferry.
+There is no treaty provision which expressly governs the circumstances in which a Convention right may or may not be taken to have been waived.
+The rules, if there are to be rules, must be found in the judgments of that court.
+It should be remembered, too, that there is a difference between an absolute rule and a guiding principle.
+The virtue of a guiding principle is that its application will depend on the facts and circumstances of each case.
+If that is as far as Strasbourg has taken the point on waiver, we should be content with that.
+We should not try to push it further by creating a system which is fenced in by fixed rules.
+A descent to that level of detail is contrary to the approach that the court itself has adopted.
+The President of the court, Sir Nicolas Bratza, said in a paper which he gave in Edinburgh in March 2011 that the Strasbourg court has been careful, in general, to leave the national authorities to devise a more Convention compliant system without itself imposing specific requirements on the State: [2011] EHRLR 505, 510.
+The facts
+The respondent was detained at 2057 hrs on 10 July 2011 under section 14 of the Criminal Procedure (Scotland) Act 1995 on suspicion of housebreaking with intent to steal.
+He was cautioned and made no reply.
+He was searched and found to be in possession of a substance which he said was cannabis.
+He was then taken to a police station, where he arrived at 2130 hrs.
+He was then advised that he had been detained under section 14 and that he was under no obligation to answer any questions other than to give his name and address, which he then did.
+At 2145 hrs he was told of his rights under sections 15 and 15A of the 1995 Act, as amended by the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, section 1(4).
+He was told that he was entitled to have intimation of his detention and of the place where he was being detained sent to a solicitor.
+In reply he gave the name of a firm of solicitors, Central Criminal Lawyers.
+He was asked whether he wished to have intimation sent to anyone else, to which he replied no.
+He was also told that he had the right for a private consultation with a solicitor before being questioned by the police and at any time during questioning.
+He was asked whether he wished a private consultation with a solicitor before being questioned, to which he replied no.
+These questions and replies were noted on a pro forma detention form.
+At 2335 hrs the following statement was read out and signed by him immediately before the start of his interview: You have chosen not to have a private consultation with a solicitor.
+Signing this in no way prevents you from changing your decision at a later time.
+His interview began at 2336 hrs on 10 July 2011.
+It continued until 0032 hrs on 11 July 2011.
+At the start of the interview he was asked whether he had been offered a consultation with a solicitor prior to the interview.
+He confirmed that this was correct.
+He was also asked whether it was correct that he had declined that interview and stated that he was happy to be interviewed without a lawyer being present or having a private consultation.
+He replied that this too was correct.
+He was then questioned about the alleged housebreaking with intent to steal, which ultimately became the first charge in the summary complaint.
+In the course of that interview he made statements in relation to that matter which were incriminating.
+At 0021 hrs on 11 July 2011 he was cautioned and arrested for housebreaking with intent to steal.
+He made no reply.
+The interview then continued in relation to the matter which ultimately became the second charge on the summary complaint.
+Before he was asked any questions about it the respondent confirmed that when he was first taken into custody he was found in possession of a herbal substance which he stated was cannabis.
+He was also asked whether he wished to consult with a solicitor before the police continued with the interview, to which he replied no.
+He was then questioned in relation to that matter between 0024 hrs and 0032 hrs.
+At 0032 hrs he was cautioned and arrested for a contravention of section 5(2) of the Misuse of Drugs Act 1971.
+He again made no reply.
+I am grateful to Lord Hamilton for the references he has made in paras 74 and 75 to the current legislation and to section 4 of the Manual of Guidance of Solicitor Access produced by the Association of Chief Police Officers in Scotland (ACPOS Manual) which was published in January 2011.
+They are an important part of the background.
+The issue in this case
+At no stage either before or during the police interview did the respondent receive advice from a lawyer on the question whether he should exercise his right of access to a solicitor before being questioned or during the questioning.
+Nor was he given an opportunity to seek legal advice on this matter before he decided whether or not he should exercise it.
+The question is whether he can be taken to have validly waived his right of access to a lawyer without having received advice from a lawyer on this point.
+In other words, does article 6(1) read with article 6(3)(c) of the Convention require, as a rule, that a person must have had legal advice before he can be taken to have waived that right? It does not say so expressly.
+But, as is abundantly clear from the jurisprudence of the Strasbourg court, the article is to be interpreted broadly by reading into it a variety of other rights to which the accused person is entitled to give effect, in a practical way, to the right to a fair trial: see Brown v Stott 2001 SC (HL) 43, p 74C E; [2003] 1 AC 681, 719 F G.
+As those rights are not set out in absolute terms in the article, they are open to modification or restriction so long as they are not incompatible with the right to a fair trial.
+The ruling by the Grand Chamber in Salduz v Turkey (2008) 49 EHRR 421 illustrates how this is done.
+In para 55, it said: Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently practical and effective article 6(1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right.
+In Ambrose v Harris (Procurator Fiscal, Oban) [2011] UKSC 43, 2011 SLT 1005, [2011] 1 WLR 2435 the issue which the court had to decide was whether the right of access to a lawyer prior to police questioning which was established in Salduz applies only to questioning which takes place when the person has been taken into police custody.
+In para 25 of my judgment in Ambrose I said: The domestic law test for the admissibility of the answers that were given to the questions put by the police is whether or not there was unfairness on the part of the police.
+The fact that the person did not have access to legal advice when being questioned is a circumstance to which the court may have regard in applying the test of fairness, but it is no more than that.
+There is no rule in domestic law that says that police questioning of a person without access to legal advice who is suspected of an offence but is not in custody must always be regarded as unfair.
+The question is whether a rule to that effect is to be found, with a sufficient degree of clarity, in the jurisprudence of the Strasbourg court.
+That approach to the issue was supported by the majority of the court in that case, and I would apply the same approach to the questions raised by this reference too.
+There is no rule in the domestic case law that says that a detainee cannot ever waive his right to legal advice when he is being questioned by the police when he has not had access to legal advice on the question whether or not he should waive that right, and that police questioning in such circumstances must always be regarded as unfair.
+The question is whether a rule to that effect is to be found, with a sufficient degree of clarity, in the jurisprudence of the Strasbourg court.
+Mr Scott QC for the respondent acknowledged in his written case that there is, as yet, no clear and constant jurisprudence of the Strasbourg court that says that legal advice is a necessary safeguard in order to ensure that any waiver is valid.
+He did not depart from that position in his oral argument, at the outset of which he said that it was not his position that a waiver was bad simply because it was given without legal advice, as had been indicated by the Appeal Court.
+He submitted that legal advice was none the less the most effective of the possible safeguards for ensuring that a waiver is knowing and intelligent and that, in certain circumstances, it may be the minimum safeguard to ensure a valid waiver.
+His position was that the first question in the reference should be answered in the negative; and that we should answer the second question, which is directed to the facts of this case, in the negative also.
+For the Crown, the advocate depute also submitted that the first question should be answered in the negative.
+But she submitted that the second question should be answered in the affirmative.
+Notwithstanding the position which Mr Scott adopted in the course of his very able argument, I think that the Strasbourg jurisprudence needs to be examined with some care to see whether it provides any support for the Lord Justice Clerks statement in Jude v HM Advocate 2011 SLT 722, para 32 that the argument for the Crown that the appellants right of access to a lawyer was capable of being waived failed because their consent to be interviewed was not informed by legal advice.
+He returned to this point in para 34, where he said: Furthermore, a valid waiver can proceed only on the basis of an informed decision.
+Since the right allegedly waived was that of access to legal advice, I cannot see how any of the appellants could waive that right when, ex hypothesi, he had no reason to think that he had any such right and had not had access to legal advice on the point (cf Millar v Dickson 2002 SC (PC) 30; Pfeifer v Austria (1992) 14 EHRR 692; Pishchalnikov v Russia (Application No 7025/04) (unreported) given 24 September 2009) The respondent in this case did have reason to think that he had a right of access to legal advice, as his detention took place after the decision in Cadder v HM Advocate [2010] UKSC 43, 2011 SC (UKSC) 13 and he was told that he had a right to a consultation with a solicitor before he was interviewed.
+But the question whether his decision not to exercise that right was an informed decision is directly in point in his case, as it is in many other cases which are still pending where this issue has been raised as a devolution issue in the sheriff courts and the High Court of Justiciary.
+The Strasbourg cases
+It is convenient to examine the jurisprudence of the Strasbourg court as it has developed over time in three stages.
+In the first group there is the jurisprudence which formed the basis of the discussion of this issue in Millar v Dickson 2002 SC (PC) 30; [2002] 1 WLR 1615.
+The second consists of the jurisprudence on which the court relied when commenting on this issue in Salduz.
+The third is the jurisprudence since Salduz.
+It has, of course, to be borne in mind when looking at this jurisprudence that the rights which are said to have been waived may vary in importance according to the circumstances of each case.
+The right which we are dealing with in this case is the right of the detainee to have access to legal advice prior to and during his interview by the police while in police custody.
+And the test of whether the waiver is effective may vary in intensity according to whether it was express or is said to have been implied from the actings of the applicant.
+This is a case where the waiver that is in question was an express waiver, not one that is said to have arisen by implication.
+So care needs to be taken when looking at cases where the right said to have been waived was a different right, such as the right to an independent and impartial tribunal, and where the right to legal assistance was not declined expressly as it was in this case and in Scotland it always will be, if the practice of offering it which has been adopted in the light of Cadder and the requirements of section 15A of the 1995 Act is properly carried out.
+The factual background has always been important to the approach that the Strasbourg court has taken to implied rights.
+Dicta in a case with one set of facts may not be a safe guide to what it would make of a case with facts that were materially different, and the domestic court too should be aware of these differences.
+(a) the first group
+In Millar v Dickson 2002 SC (PC) 30 the question was whether the appellants had waived their right to an independent and impartial tribunal under article 6 of the Convention by appearing before the temporary sheriffs without objecting to their hearing their cases on the ground that they did not meet this requirement.
+Drawing on such jurisprudence as was to be found in the judgments of the Strasbourg court at that time, Lord Bingham of Cornhill said in para 31: In most litigious situations the expression waiver is used to describe a voluntary, informed and unequivocal election by a party not to claim a right or raise an objection which it is open to that party to claim or raise.
+In the context of entitlement to a fair hearing by an independent and impartial tribunal, such is in my opinion the meaning to be given to the expression.
+That the waiver must be voluntary is shown by Deweer v Belgium (1980) 2 EHRR 439, where the applicants failure to insist on his right to a fair trial was held not to amount to a valid waiver because it was tainted by constraint (para 54, p 465).
+In Pfeifer and Plankl v Austria (1992) 14 EHRR 692 there was held to be no waiver where a layman had not been in a position to appreciate completely the implication of a question he had been asked (para 38, p 713).
+In any event, it cannot meaningfully be said that a party has voluntarily elected not to claim a right or raise an objection if he is unaware that it is open to him to make the claim or raise the objection.
+The words voluntary, informed and unequivocal capture the essence of what is needed for a waiver of any kind to be valid.
+I said in Millar v Dickson, para 53 that the Strasbourg jurisprudence showed that, unless the person was in full possession of all the facts, an alleged waiver of the right to an independent and impartial tribunal must be rejected as not being unequivocal.
+It could also be said to have been uninformed.
+No evidence was produced by the prosecutor in that case, on whom the onus lay, to show that the appellants were aware of the system which had been developed by the executive for making and not renewing the sheriffs appointments.
+The judgment in Deweer v Belgium (1980) 2 EHRR 439 was directed to the first part of Lord Binghams test.
+The applicant paid a fine under protest, following an order by the public prosecutor for the provisional closure of his butchers shop unless it was paid by way of settlement.
+The decision in his case shows that to be effective a waiver must have been voluntary, not tainted by constraint.
+The judgment in Pfeifer and Plankl v Austria (1992) 14 EHRR 692 provides authority for the requirement that the election by which the right is said to have been waived must be informed.
+In the absence of his counsel, Mr Pfeifer waived his right under national law to have two investigating judges who later presided at his trial disqualified.
+He then complained that he had been denied an impartial trial in violation of article 6(1).
+In para 38 of its judgment in his case the court referred to articles of the Code of Criminal Procedure which required the investigating judges to inform the president of the trial court of the circumstances entailing their disqualification, and to the fact that there was no provision of Austrian law which defined the procedure to be followed for a defendant expressly to waive his right to be tried by a court whose composition was in accordance with the law.
+It stressed that this was a right of essential importance and that its exercise could not depend on the parties alone.
+It went on to note that, when the applicant was told by the presiding judge, in the absence of his lawyer, that the investigating judges were disqualified, there was put to him a question which was essentially one of law, whose implication Mr Pfeifer as a layman was not in a position to appreciate completely.
+A waiver of rights expressed there and then in such circumstances appears questionable, to say the least.
+The fact that the applicant stated that he did not think it necessary for his lawyer to be present makes no difference.
+The decision in that case shows that regard must be had to the character or nature of the right when a decision is made as to whether the person was given sufficient information about that right for him to make an informed decision as to whether or not he should waive it.
+The requirement that the waiver of a right guaranteed by the Convention must be unequivocal was emphasised in Oberschlick v Austria (1991) 19 EHRR 389, to which Lord Bingham referred in Millar v Dickson, para 31; see also para 55.
+That was a case where a journalist was convicted by a court which regarded itself as bound by the opinion of the court of appeal which had remitted his case to the lower court for trial after it had been dismissed by that court.
+The judge who presided over the court of appeal was the same judge as had presided over it on the first occasion, contrary to the code of criminal procedure.
+The journalist complained that the court of appeal on the second occasion was not an independent and impartial tribunal.
+The argument that he had impliedly waived that right because he had not raised this objection at the hearing of his appeal was rejected, on the ground that neither he nor his counsel were aware until well after the hearing of all the circumstances that provided grounds for objecting to the tribunal on the grounds of impartiality: Oberschlick, para 51.
+In Jones v United Kingdom (2003) 37 EHRR CD269 the applicant was absent and unrepresented throughout his trial.
+The Fourth Section said at p CD278 that before he could be said to have impliedly through his conduct waived his right it must be shown that he could reasonably have foreseen what the consequences of his conduct would be.
+This could not be done at the time of his trial as it had not yet been clearly established under English law that it was possible to try an accused in his absence throughout, so it could not be said that he had unequivocally and intentionally waived his rights.
+His application was held to be inadmissible on other grounds.
+This first group of cases provides ample support for the proposition that, in order to be effective as a waiver of a Convention right, the acts from which the waiver is to be inferred must be voluntary, informed and unequivocal.
+But they do not go more deeply into the question as to what is needed for the waiver to be informed in the context of an alleged waiver of a right such as that which is in issue in this case, where the person is first told what the right is and then says in terms that he does not want to exercise it.
+In Oberschlick and Jones the applicant did not have the information, and in Pfeifer the question that was put to him about disqualification raised an issue of law whose implication he was not in a position fully to appreciate.
+(b) the second group
+The second group of cases consists of those that the Grand Chamber relied on in Salduz v Turkey (2008) 49 EHRR 421.
+The applicant in that case did not have access to a lawyer because the offence which he was accused of having committed fell within the jurisdiction of the state security courts.
+The system in force at that time did not permit him to have access to a lawyer when he made his statements to the police, to the public prosecutor and to the investigating judge.
+But he had signed a form in which it was stated that he had been reminded of his right to remain silent.
+In para 59 of its judgment the Grand Chamber made these comments on this aspect of the case: The Court further recalls that neither the letter nor the spirit of article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial.
+However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance.
+Thus, in the present case, no reliance can be placed on the assertion in the form stating his rights that the applicant had been reminded of his right to remain silent.
+Reference was made in support of these observations to Sejdovic v Italy (2004) 42 EHRR 360, para 36, Kolu v Turkey (Application No 35811/97) (unreported) given 2 August 2005, para 53 and Colozza v Italy (1985) 7 EHRR 516, para 28.
+In Sejdovic v Italy the applicant was tried in his absence and convicted of manslaughter.
+He was held by the Italian authorities to have waived his right to appear at his trial because after the killing he had become untraceable.
+In para 33 the Court said: The Court re iterates that neither the letter nor the spirit of article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial; however, any such waiver must be made in an unequivocal manner and must not run counter to any important public interest.
+In para 35 it said that to inform someone of a prosecution brought against him was a legal act of such importance that it must be carried out in accordance with procedural and substantive requirements capable of guaranteeing the exercise of the accuseds rights.
+In para 36 it said that, even supposing that the applicant was indirectly aware that criminal proceedings had been opened against him, it could not be inferred that he had unequivocally waived his right to appear at his trial.
+As for the question of safeguards, It remains to be determined whether the domestic legislation afforded him with sufficient certainty the opportunity of appearing at a new trial.
+It held that that safeguard was absent, as the remedy that the criminal procedure code provided did not guarantee with sufficient certainty that the applicant would have the opportunity of appearing at a new trial to present his defence.
+The reference to the right to take part in the trial in para 59 of the judgment in Salduz appears to have been copied from Sejdovic v Italy.
+It is consistent with the view that the Grand Chamber had expressed in para 54 about the importance of the investigation stage, which was the stage at issue in the Salduz case, for the preparation of the criminal proceedings as a whole.
+I would take from the judgment in Sejdovic that the requirement that a waiver must be made in an unequivocal manner applies to waivers that are alleged to have been made expressly as much as to implied waivers, and that the reference in Salduz, para 59 to the alleged waiver of a right being attended by minimum safeguards commensurate to its importance applies to them too.
+But the right under consideration in Sejdovic was the applicants right to present his defence at his trial, and the fact that he had no guarantee that he could do this at any new trial made it all the more difficult for the Court to hold that for him to be deemed to have waived his right to appear satisfied the requirements of article 6 of the Convention.
+In Colozza v Italy (1985) 7 EHRR 516, para 28 the court said that, to be effective, the alleged waiver must be established in an unequivocal manner.
+In that case it was alleged the applicant had impliedly waived his rights because he did not appear at his trial.
+But it was held that an examination of the facts did not provide a sufficient basis for saying that the waiver was unequivocal, as there was no evidence that he had been made aware of the opening of the criminal proceedings against him.
+All that had happened was that notifications of the trial had been lodged with the investigating judge and subsequently with the registry of the court.
+In Kolu v Turkey (Application No 35811/97), according to the minutes, the applicant was asked by the investigating authorities if he required a lawyer, said that he did not want one and then proceeded to make several incriminating statements in answer to the questions that were put to him: para 19.
+He complained that he had not the benefit of a lawyer and that the minute had been drafted after, not during, his questioning: para 48.
+In para 53 the court said that it found it difficult to believe the statement in the minutes that he had refused the assistance of a lawyer.
+It reaffirmed, under reference to Colozza v Italy, para 28, that to be effective a waiver of the benefit of the guarantees under article 6 had to be shown to have been unequivocal, which was not so on the facts of that case.
+Sejdovic and Colozza were cases of implied waiver.
+In Kolu it was express.
+The right that was in issue in Sejdovic and Colozza was the right to take part in the trial.
+They do not provide a basis for reading into the ruling in Salduz a requirement that the accused must have had legal advice on the point before he can be held to have waived his right of access to a lawyer before being questioned while in police custody.
+In Kolu the point might have been taken, as that was a case where the applicants complaint was that he had been denied access to a lawyer when he was being questioned.
+It might have been said, if the court had wanted to make the point, that the argument that he had waived that right was unsustainable because he had not received legal advice on the question whether he should waive it.
+The court did not take that opportunity.
+It relied instead on the rule that a waiver, to be effective, must be unequivocal.
+(c) the third group
+The third group of cases consists of a selection from an increasingly large number of decisions of the Strasbourg court on waiver since the Grand Chambers judgment on 27 November 2008 in Salduz.
+It has been stressed repeatedly that, to be effective, a waiver must be established in an unequivocal manner and attended by the minimum safeguards commensurate to the importance of the right.
+But in none of these cases did the court say that waiver of a right under article 6 was necessarily incomplete because the applicant had not received legal advice as to whether or not he should waive it.
+It was not suggested that the court has said this in any other case that might have been selected for consideration in this group.
+The case which comes closest on its facts to this one is Pishchalnikov v Russia (Application No 7025/04) (unreported) given 24 September 2009, which is the only case in this group that was mentioned by the Lord Justice Clerk in his opinion at para 34.
+The applicant was arrested on suspicion of aggravated robbery.
+He asked for the assistance of a lawyer during his interrogation, but this was disregarded by the investigator who proceeded to question him.
+It was argued that his decision then to confess his guilt to the investigator constituted an implied waiver of his right to counsel.
+The court found that his statements, made without having had access to counsel, did not amount to a valid waiver of his right.
+counsel: In paras 77 78 of Pishchalnikov the court said, with reference to the right to 77.
+A waiver of the right, once invoked, must not only be voluntary, but must also constitute a knowing and intelligent relinquishment of a right.
+Before an accused can be said to have implicitly, through his conduct, waived an important right under article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be. 78.
+The Court considers that the right to counsel, being a fundamental right among those which constitute the notion of fair trial and ensuring the effectiveness of the rest of the foreseen guarantees of article 6 of the Convention, is a prime example of those rights which require the special protection of the knowing and intelligent waiver standard.
+It is not to be ruled out that, after initially being advised of his rights, an accused may himself validly waive his rights and respond to interrogation.
+However, the Court strongly indicates that additional safeguards are necessary when the accused asks for counsel because if an accused has no lawyer, he has less chance of being informed of his rights and, as a consequence, there is less chance that they will be respected.
+As for the facts of that case, the court said in para 79 that, when an accused had invoked his right to be assisted by counsel during his interrogation, a valid waiver of that right could not be established by showing only that he responded to further police questioning even if he had been advised of his rights.
+In para 80 it went on to say this: Furthermore, the Court does not rule out that, in a situation when his request for assistance by counsel had been left without adequate response, the applicant who, as it follows from the case file, had had no previous encounters with the police, did not understand what was required to stop the interrogation.
+The Court is mindful that the applicant may not have had sufficient knowledge, experience, or even sufficient self confidence to make the best choice without the advice and support of a lawyer.
+It is possible that he did not object to further questioning in the absence of legal assistance, seeing the confession (true or not) as the only way to end the interrogation.
+Given the lack of legal assistance the Court considers it also unlikely that the applicant could reasonably have appreciated the consequences of his proceeding to be questioned without the assistance of counsel in a criminal case concerning the investigation of a number of particularly grave criminal offences.
+The reasoning in para 80 shows that the Strasbourg court is sensitive to the facts of the case when it is addressing this issue.
+I do not find in any of these paragraphs a basis for holding that, as a rule, an accused must have had access to legal advice on the question whether or not he should waive his right to consult a solicitor before being interviewed by the police.
+But there are indications in the judgment that, in determining what safeguards are necessary, account should be taken of the importance of the right.
+Account should also be taken of the fact that, for a variety of reasons which will vary from case to case and may depend on the gravity of the offences which he is suspected of having committed, the accused may not have appreciated the consequences of his agreeing to be questioned in the absence of a solicitor.
+Pishchalnikov is, of course, distinguishable on its facts because the investigator ignored the applicants request for a lawyer.
+The court noted in para 80 that there was no evidence that the confessions which the applicant made during his further interrogation had been initiated by him.
+It was a blatant example of a person who was facing a serious charge being denied the very right which he had made it plain he wished to exercise.
+It was also a case in which the waiver that was in question was an implied waiver.
+The decision in Pishchalnikov does not tell us what view the court would have taken if the applicant had been advised by the authorities that he had a right to a lawyer and he had then told them expressly, of his own free will, that he did not wish to exercise that right.
+But guidance as to how the court is likely to see a case of that kind is to be found in Yolda v Turkey (Application No 27503/04) (unreported) given 23 February 2010.
+The applicant in Yolda was charged with belonging to an illegal organisation.
+He was informed of his rights by the public prosecutor and by the judge who placed him on remand.
+He signed a form which told him that he had the right to appoint a legal representative who could be present when his statement was taken.
+It also told him that he could benefit from the legal assistance of a legal representative appointed by the bar association if he was not in a position to appoint one.
+He stated that he understood his rights but that he did not wish to be assisted a lawyer.
+The court recalled the declaration in Salduz, para 59 that, in order to be effective for the purposes of the Convention, any waiver of the right to take part in the trial must be established unequivocally and be surrounded by a minimum of guarantees as to its seriousness.
+Applying those principles to the facts of the case in para 52, it noted that he had been reminded of his right to legal assistance, that he refused it and that it clearly emerged from his statements taken whilst in custody that his decision to waive his right to legal assistance was freely and voluntarily made: Hence, the applicants waiver of this right was unequivocal and surrounded by a minimum guarantee.
+This decision indicates that where it is shown that the accused, having been informed of his rights, states that he does not want to exercise them, his express waiver of those rights will normally be held to be effective.
+The minimum guarantees are that he has been told of his right and that the waiver was freely and voluntarily made.
+The minority said in their dissenting judgment that a procedural choice made without a lawyer being able to inform and advise him could not be free and informed, but the court did not accept this argument.
+The same approach was taken in two other cases in this group.
+In Galstyan v Armenia (2007) 50 EHRR 618 the applicant was arrested when he was on his way home from a protest rally.
+He was made aware of his rights and expressly declined a lawyer.
+The Court held that, as it was his own choice not to have a lawyer, the authorities could not be held responsible for the fact that he was not represented in the proceedings against him.
+In para 91 it said that, while the nature of some rights safeguarded by the Convention was such as to exclude a waiver of entitlement to exercise them, the same could not be said of other rights.
+A person had a choice under article 6(3)(c) of defending himself in person or through legal assistance, so it would normally not be contrary to the requirements of that article if an accused was self represented in accordance with his own free will.
+There was no evidence in that case that his choice was the result of any threats or physical violence or that he was tricked into refusing a lawyer.
+In Sharkunov and Mezentsev v Russia (Application No 75330/01) (unreported) given 10 June 2010, in which it held that there had been no violation of the right to legal assistance, the court reiterated at para 106 that neither the letter nor the spirit of article 6 prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial but that, to be effective for Convention purposes, the waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance.
+In Paskal v Ukraine (Application No 24652/04) (unreported) given 15 September 2011 the applicant, who had a university degree in law and at the material time was serving as a police officer, was arrested on suspicion of having taken part in a robbery.
+He signed a procedural rights notification form and noted that he wished to appoint a lawyer whom he named as his advocate.
+He was then questioned, without a lawyer being present, about the robbery just after he had explicitly expressed that wish.
+It was argued that this was a case of an implied waiver.
+The Court said that it had been mindful in a number of its judgments of the vulnerable position of a suspect vis vis the investigative authorities and had emphasised the paramount importance of access to a lawyer before the first questioning as a means to counter the imbalance between the parties.
+Recalling the Grand Chambers observations in Salduz, para 59 that neither the letter nor the spirit of article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial, as long as a waiver of the right is given in an unequivocal manner and was attended by safeguards commensurate to its importance, it addressed the question whether the waiver constituted an act of the applicants free will and informed procedural choice: para 77.
+The fact that the applicant was a policeman and a lawyer himself might not mean that he was not vulnerable and in need of an advocates support.
+But the level of his expertise could not be discounted in assessing whether his consent to participate in the particular questioning was well informed.
+The court concluded that the waiver was effective as he was not coerced to give any statement in defiance of his will: para 78.
+But a different view might be taken if there is reason to believe that the applicant was not able to act freely or did not understand his rights.
+In Talat Tun v Turkey (Application No 32432/96) (unreported) given 27 March 2007 the applicant did not ask for a lawyer.
+But the court noted in para 60 that he had in effect stated that he was not able to act freely because he was being threatened with ill treatment and that it was not possible to hold that he could reasonably have foreseen the consequences of his not requesting the assistance of a lawyer in criminal proceedings where he was at risk of being sentenced to death as he did not have any formal education and was from a humble background: see also Duman v Turkey (Application No 28439/03) (unreported) given 23 March 2010, para 48; Lopata v Russia (Application No 72250/01) (unreported) given 13 July 2010, para 135.
+In Plonka v Poland (Application No 20310/02) (unreported) given 31 March 2009 the applicant signed a form acknowledging that she had been informed of her right to be assisted by a lawyer during her questioning by the police and the prosecution authorities.
+But it was held that her assertion in the form that she had been reminded of her right to remain silent and to be assisted by a lawyer could not be considered reliable as she was suffering from alcoholism and was in a vulnerable position as the time of her interview: para 37 38.
+Bortnik v Ukraine (Application No 39582/04) (unreported) given 27 January 2011 is another case of this type.
+In aman v Turkey (Application No 35292/05) (unreported) given 5 April 2011 the applicant, who was accused of being a member of an illegal organisation and faced a heavy penalty, had an insufficient knowledge of Turkish and was without the help of an interpreter.
+The Court held that she could not reasonably have appreciated the consequences of accepting to be questioned without the assistance of a lawyer in a criminal case concerning the investigation of particularly grave offences.
+The waiver may come too late, as in Zaichenko v Russia (Application No 39660/02) (unreported) given 18 February 2010, where the relevant incriminating statement was made before the applicant was advised of his right to remain silent: see para 53.
+No mention was made in this group of cases of a rule that an applicant who has acted of his own free will must have access to legal advice on the question whether or not he should waive his right before he can be held to have waived that right.
+But they do show that a different view might be taken if there is reason to believe that the applicant was not able to act freely or that he did not understand the right that was being waived.
+Comparative jurisprudence
+The main source of comparative jurisprudence on the issue of waiver by a suspect of the right of access to a lawyer while being questioned by the police is to be found in decisions of the US Supreme Court.
+Although the Strasbourg court has not referred to Miranda v Arizona 384 US 436 (1966) in any of its judgments, there are signs that it and subsequent cases that the ruling in Miranda have given rise to have influenced the thinking of the Strasbourg court as it develops the principles described in Salduz: see Ambrose v Harris (Procurator Fiscal, Oban) 2011 SLT 1005, paras 52 53.
+Judge de Meyer noted in his dissenting opinion in Imbrioscia v Switzerland (1993) 17 EHRR 441, 460 that the expression knowingly and intelligently had been used as long ago as 1966 in Miranda and that the principles there defined belong to the very essence of a fair trial.
+The issue of waiver was raised in Miranda in a series of cases where decisions of the courts below were reversed because the accused had not been told of his rights before being questioned while in custody by the police.
+At p 475 the court said: 52 54 An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver.
+But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.
+A statement we made in Carnley v Cochran, 369 US 506, 516, 82 S Ct 884, 890, 8 L Ed 2d 70 (1962) is applicable here: Presuming waiver from a silent record is impermissible.
+The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer.
+At p 479 it summarised the prerequisites for an effective waiver in these terms: [The suspect] must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.
+Opportunity to exercise these rights must be afforded to him throughout the interrogation.
+After such warnings have been given, and such opportunity afforded to him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement.
+But unless and until such warnings and waiver are demonstrated by the prosecutor at trial, no evidence obtained as a result of interrogation can be used against him.
+The phrase intelligently and understandingly does not appear in any of the judgments of the Strasbourg court.
+But the phrase knowing and intelligent was used in Pishchalnikov, para 77, and it is not far away from Lord Binghams proposition in Millar v Dickson 2002 SC (PC) 30, para 31 that the expression waiver is used to describe a voluntary, informed and unequivocal election by a party not to claim a right or raise an objection which it is open to that party to claim or raise.
+In North Carolina v Butler 441 US 369 (1979) at p 373 the Court said that an express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but that it was not inevitably either necessary or sufficient to establish waiver: The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case.
+As was unequivocally said in Miranda, mere silence is not enough.
+That does not mean that the defendants silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights.
+The courts must presume that a defendant did not waive his rights; the prosecutions burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.
+The phrase used here was knowingly and voluntarily.
+But the words used in these various formulations of the test all carry with them the idea that the waiver must have been an informed decision, based on an understanding of what the right is that is being waived.
+In Edwards v Arizona 451 US 477 (1981) the Court returned to the question what was needed for a valid waiver.
+At p 482 it said that it was reasonably clear under its cases that waivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege.
+This was a matter which would depend in each case upon the particular facts and circumstances, including the background, experience and conduct of the accused.
+At p 483 the trial court was criticised for finding the accuseds admission to have been voluntary, without separately focusing on whether he had knowingly and intelligently relinquished his right to counsel.
+At p 484, recalling that in North Carolina v Butler it had strongly indicated that additional safeguards are necessary when the accused asks for counsel, it held that when an accused had invoked his right to have counsel present during custodial interrogation a valid waiver of the right cannot be established simply by showing only that he responded to further police initiated custodial interrogation.
+In that case, as Chief Justice Burger noted in a concurring judgment at p 488, when the accused said that he did not wish to speak to anyone he was told by the detention officer that he had to.
+The reference in this judgment to the need for additional safeguards can be compared with the Strasbourg courts requirement that a waiver must be attended by minimum safeguards commensurate to its importance which first made its appearance in Salduz, para 59.
+In Oregon v Elstad 470 US 298 (1985) the respondent argued that he was unable to give a fully informed waiver of his rights because he was unaware that his unwarned prior statement could not be used against him: p 316.
+He suggested that the officer at the Sheriffs headquarters should have added an additional warning to those given to him at the Sheriffs office to cure this deficiency.
+Delivering the opinion of the court, Justice OConnor said at p 316 that such a requirement was neither practicable nor constitutionally necessary: Standard Miranda warnings explicitly inform the suspect of his right to consult a lawyer before speaking.
+Police officers are ill equipped to pinch hit [i.e. substitute] for counsel, construing the murky and difficult questions of when custody begins or whether a given unwarned statement will ultimately be held admissible This court has never embraced the theory that a defendants ignorance of the full consequences of his decisions vitiated their voluntariness.
+At p 316 the Court recalled that in California v Beheler 463 US 1121 (1983) it declined to accept the defendants contention that, because he was unaware of the potential adverse consequences of statements he made to the police, his participation in the interview was not voluntary.
+It concluded its discussion of this topic with these words: Thus we have not held that the sine qua non for a knowing and voluntary waiver of the right to remain silent is a full and complete appreciation of all of the consequences flowing from the nature and quality of the evidence in the case.
+More recently the word intelligent which was used by the court in Miranda has been brought back into the formula, and the court has explained that as a general rule the test will be satisfied if the choice is made with a full understanding of what the rights are.
+In Maryland v Shatzer (2010) 130 S Ct 1213, 1219 Justice Scalia, delivering the opinion of the court, said: To counteract the coercive pressure [of police questioning], Miranda announced that police officers must warn a suspect prior to questioning that he has a right to remain silent, and a right to the presence of an attorney.
+After the warnings are given, if the suspect indicates that he wishes to remain silent, the interrogation must cease.
+Similarly, if the suspect states that he wants an attorney, the interrogation must cease until an attorney is present.
+Critically, however, a suspect can waive these rights.
+To establish a valid waiver, the State must show that the waiver was knowing, intelligent and voluntary.
+And in Berghuis v Thompkins (2010) 130 S Ct 2250, 2262, Justice Kennedy said: Although Miranda imposes on the police a rule that is both formalistic and practical when it prevents them from interrogating suspects without first providing them with a Miranda warning. , it does not impose a formalistic waiver procedure that a suspect must follow to relinquish those rights.
+As a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford.
+It has not been not suggested by the US Supreme Court in any of these cases that it was essential to a waiver of right to counsel that the accused should have had legal advice on the point as to whether or not he should waive it.
+The courts reasoning in Oregon v Elstad and the presumption to which Justice Kennedy referred in Berghuis v Thompkins seem to be in conflict with there being any such requirement.
+The Crown has drawn attention to the fact that few jurisdictions approach the question of waiver on the basis that legal advice on the consequences of the waiver is a prerequisite.
+The Supreme Court of Canada described what it has called the informational component of the right under section 10(b) of the Charter of Rights and Freedoms to retain and instruct counsel as relatively straightforward: R v Willier [2010] 2 SCR 429, paras 29 31.
+A person who waives a right must know what he or she is giving up if the waiver is to be valid.
+It is the duty of the police to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel.
+This ensures that a detainee who persists on waiving the right of access to counsel has the information and will know what he or she is actually giving up: R v Bartle [1994] 3 SCR 173, 206; R v Prosper [1994] 3 SCR 236, 274, per Lamer CJ.
+But there is no indication in its decisions that the detainee must have had legal advice as to whether or not the right should be waived before the waiver can be held to be effective.
+Information obtained from Eurojust about the position in Member States of the EU suggests that the right to legal advice before being questioned can be waived without prior consultation with a lawyer in Austria, Sweden, Estonia, France and Malta.
+The courts in Germany and Poland have not decided whether the suspect needs to consult with a lawyer before a waiver can be held to be effective.
+In Bulgaria, the Czech Republic, the Netherlands and Spain the presence of a lawyer during interrogation is in certain circumstances compulsory.
+The Strasbourg court found support for the decision it took in Salduz from the fact that the principles which it outlined were in line with the generally recognised international human rights standards which are at the core of the concept of a fair trial: (2009) 49 EHRR 421, para 53.
+It appears to be clear that there is no generally internationally recognised human rights standard on the issue of waiver that would support the conclusion that access to legal advice is an essential prerequisite to an effective waiver by a detainee of the right of access to a lawyer when he is being questioned by the police.
+Discussion
+I do not think that the Strasbourg jurisprudence provides any support for the Lord Justice Clerks statement in Jude v HM Advocate 2011 SLT 722, para 32 that the argument for the Crown that the appellants right of access to a lawyer was capable of being waived failed because their consent to be interviewed was not informed by legal advice.
+The court has had the opportunity on a number of occasions to lay down a rule to that effect, but it has not taken it.
+The cases of Yolda v Turkey (Application No 27503/04), 23 February 2010, Galstyan v Armenia (2007) 50 EHRR 618, Sharkunov and Mezentsev v Russia (Application No 75330/01) 10 June 2010 and Paskal v Ukraine (Application No 24652/04) 15 September 2011 (see paras 32 34, above) are particularly instructive on this point, as they could not have been decided as they were if there had been a rule to that effect.
+The decisions of the US Supreme Court since Miranda do not lend encouragement to any suggestion that it would be appropriate for such a rule to be laid down.
+The wording of its observations in Oregon v Elstad 470 US 298 is a strong pointer in the contrary direction.
+I would hold therefore that the statements in Jude, paras 32 and 34 which indicate that there is such a rule should be disapproved.
+Where the accused, having been informed of his rights, states that he does not want to exercise them, his express waiver of those rights will normally be held to be effective.
+The minimum guarantees are that he has been told of his right, that he understands what the right is and that it is being waived and that the waiver is made freely and voluntarily.
+There is however a theme that runs through the Strasbourg courts decisions which indicates that access to a lawyer may well be a necessary prerequisite of a valid waiver in some cases.
+Talat Tun v Turkey (Application No 32432/96) 27 March 2007 and aman v Turkey (Application No 35292/05) 5 April 2011 (see para 35, above) provide illustrations of this point.
+The court must be alive to the possibility that the words of the caution, and advice that the detainee has the right to a private consultation with a solicitor before any questioning begins and at any other time during such questioning which is required by section 15A(3), may not be fully understood by everyone.
+Comprehending the Scottish caution: Do offenders understand their right to remain silent? David J Cooke and Lorraine Philip (1998) Legal and Criminological Psychology 13, was written some time ago and does not fully reflect current practice.
+But it serves as a warning that it should not be taken for granted that everyone understands the rights that are being referred to.
+People who are of low intelligence or are vulnerable for other reasons or who are under the influence of drugs or alcohol may need to be given more than standard formulae if their right to a fair trial is not to be compromised.
+Lord Carloway was appointed by the Cabinet Secretary for Justice to review key elements of Scottish criminal law and practice in the light of the decision in Cadder.
+The Carloway Review was published on 17 November 2011.
+Among the issues with which it deals and about which it makes recommendations is that of waiver: paras 6.1.41 6.1.47.
+The Association of Chief Police Officers in Scotland has already produced a manual of guidance of solicitor access: the ACPOS Manual which was published in January 2011.
+That guidance too is currently under review.
+I am conscious that anything we may say in this case may be overtaken by events, and I would not want in any way to restrict the scope of these reviews.
+But I would make two suggestions, while emphasising that in making them I am not intending to suggest that article 6 requires that these steps must, as a rule, be taken in every case.
+The first relates to the question whether the accused has been fully informed of the right of access to a lawyer.
+I suggest that, to minimise the risk of misunderstanding, the police should follow the practice indicated by para 6.5 of Code C of the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers which was introduced in England in the light of the Police and Criminal Evidence Act 1984, as to the background to which see the editorial, Legal advice in police stations: 25 years on, in (2011) Crim LR 1.
+Para 6.5 states inter alia: If, on being informed or reminded of [the right of access to legal advice], the detainee declines to speak to a solicitor in person, the officer should point out that the right includes the right to speak to a solicitor on the telephone.
+If the detainee continues to waive this right the officer should ask them why and any reasons given should be recorded on the custody record or the interview record as appropriate.
+Offering the detainee the right to speak to a solicitor on the telephone may be relevant if the detainee is concerned about delay in securing the attendance of a solicitor at the police station.
+The giving of reasons may reveal that, although he has been given the standard caution and advice, the detainee has not fully understood what his rights are.
+It will provide an opportunity for any obvious misunderstandings to be corrected.
+Failure to do that may be relevant to the question whether the waiver was knowing and intelligent or voluntary, informed and unequivocal, and thus to the question whether, in all the circumstances, the detainee was deprived of his right to a fair trial.
+Any reasons that are given should be recorded.
+But, as Justice OConnor observed in Oregon v Elstad 470 US 298 (1985) at p 316 (see para 41, above), police officers are ill equipped to substitute for counsel.
+So it would seem to be unwise for them to be encouraged to take the further step of offering advice to the detainee.
+Lord Kerr has made a powerful case for requiring steps to be taken to ensure that the accused has a clear understanding and insight as to the significance of dispensing with the services of a lawyer.
+He would require the steps indicated by para 6.5 of Code C to be taken in every case, because without them a decision to waive cannot be said to have been voluntary, informed and unequivocal: see para 117, below.
+I recognise the force of his argument, and there is much to be said for this as a suggestion as to how the current practice should be improved.
+But best practice is one thing.
+An absolute rule, to which section 57(2) of the Scotland Act must always give effect, is quite another.
+I do not think that it can be said that an absolute rule to the effect that Lord Kerr contends for has been clearly identified by the Strasbourg court.
+Moreover, as the terms of the reference make clear, we have not been asked to make a declaration to that effect in this case.
+What we have been given by Strasbourg, as I see it, is a guiding principle as to what is needed for there to be an effective waiver.
+Its application in determining whether there will be, or has been, a fair trial will depend on the facts of each case.
+The second suggestion comes from the observation by the US Supreme Court in Miranda v Arizona 384 US 436, at p 473 in paras 41, 42 that, in order fully to apprise a person interrogated of the extent of his right under the system that it was laying down in that case, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him.
+The wording of the advice that, in accordance with the standard practice, the respondent was given when he was told of his right to consult with a solicitor prior to and during his questioning did not go on to advise him of the arrangements that might be made if he wanted to exercise that right and was unable to name a solicitor or was concerned about the cost of employing one.
+The fact that the respondent was able in this case to give an appropriate name when he was asked if he wished intimation of his detention to be sent to a solicitor suggests that he was under no misapprehension on this point.
+But it might be wise not to rely on assumptions about this, even in the case of those with previous experience of the criminal process.
+As for the facts of this case, Mr Scott submitted that the wording of the current safeguards was defective and that the Crown could not show that the respondent waived his rights knowingly and intelligently.
+The advocate depute, for her part, referred to various safeguards that were in place to ensure that the waiver met this standard.
+She said that there were no grounds for thinking that the respondent was vulnerable or had not been able to understand the caution.
+The fact that he had nominated a firm of solicitors with experience of criminal law and procedure showed that he was aware of his rights and of the significance of declining the offer of access to them before and during his questioning.
+I do not think that it would right for this court to reach a decision on these competing arguments as Lord Kerr would do.
+The issue has come before us as a reference which was directed to a particular issue on which our guidance was sought, and not as an appeal.
+It raises questions of fact and degree which ought properly to be dealt with in the trial court.
+I would remit the question whether for the Lord Advocate to lead and rely on the evidence of his interview would be incompatible with his Convention right to a fair trial to the sheriff for determination after he has heard all the evidence on this issue.
+Conclusion
+I would answer the first question in the reference in the negative.
+The jurisprudence of the Strasbourg court does not support the proposition that, as a rule, the right of access to legal advice during police questioning can only be waived if the accused has received advice from a lawyer as to whether or not he should do so.
+I would remit the second question to the sheriff.
+The answer to it must depend on whether, on a consideration of all the facts and circumstances, the sheriff is satisfied that it would be fair for the Lord Advocate to lead and rely upon evidence of the answers that the respondent gave during his police interview.
+LORD BROWN
+Having had the opportunity of reading in draft the judgments of Lord Hope, Lord Dyson and Lord Hamilton on the one hand and Lord Kerr on the other, I find myself in full agreement with the majority.
+I can briefly summarise why by reference to Lord Kerrs judgment at para 127, with much of which I agree but certain parts of which I cannot accept.
+At para 127(iii) Lord Kerr concludes that a purported waiver should not be regarded as effective [u]nless it is shown that the suspect had a proper insight into the significance of the decision to waive his right.
+This conclusion clearly derives from para 117 of Lord Kerrs judgment where he says that the suspect must have reasonable foresight of the consequences for him of [waiving his right to be advised by a lawyer before or during interview] and adds: I do not suggest that a suspect needs to be aware of every legal nuance that might arise in the course of his interview but he should be aware in a general sense that legal issues might arise and should have consciously decided that he is prepared to forego the advice that a lawyer might give on those issues either before or in the course of the interview.
+If by that is meant, as appears to be meant, that the suspect must realise more than that he will be asked questions by the police without the benefit of legal advice, to my mind Lord Kerr is asking too much.
+As Lord Hamilton says at para 94 of his judgment: The natural and legitimate inference in circumstances where the suspect has responded with a clear negative to the enquiry [whether he wishes to exercise his right to legal assistance] will be that he or she has a proper understanding, including an appreciation that in light of his or her answer legal assistance will not be made available for the purposes of the interview.
+Lord Dyson says much the same thing at para 70 of his judgment.
+It is surely obvious that the point of a lawyer is to advise on any legal issues that may arise and that if a suspect chooses to forego this right he will be questioned without the benefit of such advice.
+He surely does not have to be told in terms that, in this event, he may say something (or neglect to say something) which a lawyer, had he been present, might have advised him not to say (or, indeed, to say).
+At para 106 of his opinion Lord Kerr points to the fact that in Scotland a suspect accused of a sexual offence can supply the necessary corroboration to support an eventual conviction by asserting at interview that the sexual activity was consensual.
+But surely no one suggests that the suspect needs to be made aware of specific legal considerations of this nature before he can be said to have waived his right to legal advice.
+The other part of para 127 of Lord Kerrs judgment with which I respectfully disagree is the suggestion that within the minimum safeguards necessarily to be provided before a waiver can be regarded as knowing and intelligent, informed and unequivocal, are a question to the suspect as to why he has decided not to exercise his right to legal advice (and the recording of his answer) and informing him that a telephone consultation with a solicitor can be arranged.
+As to this I agree with what Lord Hope says at para 49 of his judgment.
+There is much to be said for introducing such further steps into the current practice (as in England and Wales) but I cannot accept that Strasbourg jurisprudence has already established an absolute rule to this effect.
+All agree that the first question in the reference should be answered in the negative.
+In common with the majority I too would remit the second question to the Sheriff for his decision on the facts.
+LORD DYSON
+I agree entirely with the judgment of Lord Hope.
+I add a few words of my own because the waiver issue is as important for the rest of the United Kingdom as it is for Scotland.
+The questions that were referred to this court by the Sheriff in the present case raise the issue of what is required by the European Convention on Human Rights (the Convention) for a valid waiver by an accused of the right of access to a lawyer prior to police questioning.
+This right, which was established in Salduz v Turkey (2008) 49 EHRR 421, is implicit in the right to a fair trial accorded by article 6 of the Convention.
+It is not in doubt that rights accorded by article 6 of the Convention can be waived.
+In Salduz itself, the Grand Chamber said: . neither the letter nor the spirit of art 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial.
+However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance.
+The statement that a waiver is unequivocal and attended by minimum safeguards has been repeated as a mantra by the ECtHR in a number of cases.
+The court has given little further explicit guidance as to what is required for a valid waiver.
+As so often, in order to determine Strasbourgs approach to this question, it is necessary to examine the courts jurisprudence to see how guidance which has been expressed at a high level of generality is applied in practice.
+But it is fair to say that on a number of occasions the court has also said that the right to the assistance of a lawyer at police interview can only be validly waived if the accused could reasonably have foreseen the consequences of his decision.
+Thus, for example, in Pishchalnikov v Russia (Application No 7025/04 ) (unreported) 24 September 2009 (para 77), the court said that a waiver once invoked, must not only be voluntary, but must also constitute a knowing and intelligent relinquishment of a right.
+Before an accused can be said to have implicitly, through his conduct, waived an important right under article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be.
+It is true that Pishchalnikov was not a case of express waiver and the accused had been denied a lawyer although he had requested one.
+But there cannot be a relevant difference between an express and an implied waiver; and it is difficult to see why the requirement of reasonable foresight of the consequences of a decision not to have a lawyer should depend on whether or not the accused requested a lawyer.
+It is common ground that the ECtHR has not gone so far as to say that there cannot be a valid waiver unless the accused has first been advised by a lawyer of the implications of not having the benefit of the assistance of a lawyer both before and during a police interview.
+It is accepted by Mr Scott QC that, although legal advice as to the desirability of having a lawyer to protect the interests of an accused at the interview stage is the most effective way of ensuring that his or her article 6 rights are protected, the Strasbourg jurisprudence does not mandate it.
+As Lord Hope points out, the ECtHR has had many opportunities to insist on such a requirement in every case, but has never done so.
+But how does a prosecuting authority prove (the burden being on it) that an accused had reasonable foresight of the consequences of a decision to be interviewed without the assistance of a lawyer? It has never been said by the ECtHR that it must be shown that an accused had reasonable foresight of all the consequences of such a decision.
+That would be tantamount to saying that no person (except perhaps an accused who has experience and understanding of criminal law and procedure) could waive the right to legal assistance without first having legal advice as to the wisdom of doing so.
+But as I have said, it is not in dispute that Strasbourg has never gone so far as to say this and its jurisprudence is not consistent with such an approach.
+As Lord Hope points out at paras 32 to 34, there are several decisions of the court where all that was required for the purposes of a valid waiver was proof that the accused had been informed that he had the right to have a lawyer present when he was interviewed and he refused to exercise that right.
+Thus in Yolda v Turkey, for example, the accused was informed of his right to be assisted by a lawyer while he was in custody and he refused a lawyers services.
+That was enough to persuade the court that the accused had sufficient foresight of the consequences of his decision to refuse the assistance of a lawyer to constitute a valid waiver.
+It was not necessary to go further and be satisfied that the accused understood precisely how the lawyer might have been able to assist him and from what pitfalls he might have been able to protect him.
+That could not have been done, not least because it would have been impossible to predict what course the interview would take.
+On the other hand, if there are reasonable grounds for believing that the accused is vulnerable in some way and that he does not understand in general terms that a lawyer might be able to assist him at the interview, then it is not enough for the police merely to ask him whether he wishes to have the assistance of a lawyer.
+Additional safeguards are necessary to ensure that such a person does not waive his right to legal assistance at the interview without a proper understanding of the significance of what he is doing.
+The most obvious way of achieving this is by the provision of legal advice on the question of legal assistance.
+Depending on the circumstances, however, there may be other ways of ensuring that the accused understands the implications of refusing the assistance of a lawyer at interview.
+It will be a question of fact in each case whether the accused can reasonably understand the implications of refusing the assistance of a lawyer at police interview.
+The ultimate question is what fairness demands in the particular case.
+Lord Hope has referred to a number of cases at para 35 where for one reason or another there were grounds for doubting whether an accused had sufficient understanding of the implications of refusing the assistance of a lawyer.
+Another case where the court held that the accused had not waived his article 6 rights because it had not been established that he would have understood the implications of his doing so is Panovits v Cyprus (Application No 4268/04) (unreported) 11 December 2008.
+At para 71, the court said: Moreover given the lack of assistance by a lawyer or his guardian, it was also unlikely that he could reasonably appreciate the consequences of his proceeding to be questioned without the assistance of a lawyer in criminal proceedings concerning the
+investigation of a murder
+The court had earlier emphasised the vulnerability of an accused minor and the imbalance of power to which he is subjected by the very nature of criminal proceedings (para 68).
+He was 17 years of age at the material time.
+I agree with what Lord Hope says at para 47.
+The court must be astute to the possibility that the implications of refusing the assistance of a lawyer may not be understood even by an apparently intelligent person.
+It will depend on all the circumstances, including the age, health and apparent intelligence of the person as well as the extent to which he or she appears to be in a state of stress and the likely length and complexity of the interview.
+But in a relatively simple case, where the accused appears to be intelligent and not especially vulnerable and he unequivocally and voluntarily refuses the offer of the assistance of a lawyer, the prosecution will usually be able to show that there has been a valid waiver.
+It is not necessary to show that the accused understood precisely what assistance could have been given but rejected it nevertheless.
+It is sufficient to show that the accused understood that the lawyer would or might be able to provide assistance at the interview stage which would or might be of benefit to him.
+The precise nature of the benefit does not matter.
+In most cases, this cannot be known in advance of the interview.
+It follows that (as is common ground) the first question must be answered in the negative.
+I agree with Lord Hope that, for the reasons he gives, the second question should be remitted to the Sheriff.
+LORD HAMILTON
+The first question in the reference as now adjusted before this court is (read short): Whether it would necessarily be incompatible with articles 6(1) and 6(3)(c) of [the Convention] for the Lord Advocate to lead and rely upon evidence of answers given during a police interview of a suspect in custody who, before being interviewed by the police (a) had been informed by the police officer of his Salduz/article 6 rights of access to legal advice; and (b) without having received advice from a lawyer, had stated that he did not wish to exercise such rights.
+It was accepted before us on either hand that the question so formulated fell to be answered in the negative.
+Mr Scott for the respondent conceded that on the basis of the jurisprudence of the Strasbourg Court as developed to date it could not be maintained that, in order effectually to waive his right of access to legal advice for the purposes of a police interview, the suspect must first actually have been in receipt of legal advice.
+In my view that concession was inevitable.
+While the domestic laws of certain of the Convention countries have laid down that, at least in some circumstances, the content of a police interview cannot be received in evidence unless the suspect has prior to the interview (or in its course) been in receipt of legal advice, the jurisprudence of the Court of Human Rights lays down no such requirement.
+In so far as the opinion of the Lord Justice Clerk in Jude, Hodgson and Birnie v HM Advocate 2011 SCCR 300; 2011 SLT 722, at paras 32 and 34 may be read (or misread) as laying down that actual receipt of legal advice prior to interview is a precondition of any effectual waiver, that opinion (with which the other judges concurred) is, in my respectful view, unsupported by the authorities apparently relied upon.
+The live issue before us is whether the arrangements put in place in Scotland following the amendment of the Criminal Procedure (Scotland) Act 1995 by the insertion of section 15A, an insertion made with effect from 30 October 2010 for the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, are compliant with Convention jurisprudence.
+That amendment was itself consequential on the judgment of the Supreme Court in Cadder v HM Advocate 2011 SC (UKSC) 13.
+Section 15A provides: 15A Right of suspects to have access to a solicitor (1) This section applies to a person (the suspect) who (a) is detained under section 14 of this Act, (b) attends voluntarily at a police station or other premises or place for the purpose of being questioned by a constable on suspicion of having committed an offence, or is (c) arrested (but not charged) in connection with an (i) offence, and (ii) being detained at a police station or other premises or place for the purpose of being questioned by a constable in connection with the offence. (a) (2) The suspect has the right to have intimation sent to a solicitor of any or all of the following the fact of the suspects (i) detention, (ii) attendance at the police station or other premises or place, or (iii) arrest, (as the case may be), (b) the police station or other premises or place where the suspect is being detained or is attending, and (c) that the solicitors professional assistance is required by the suspect. (3) The suspect also has the right to have a private consultation with a solicitor (a) before any questioning of the suspect by a constable begins, and (b) at any other time during such questioning. (4) Subsection (3) is subject to subsections (8) and (9).
+In subsection (3), consultation means consultation by such (5) means as may be appropriate in the circumstances, and includes, for example, consultation by means of telephone. (6) The suspect must be informed of the rights under subsections (2) and (3) (a) on arrival at the police station or other premises or place, and (b) in the case where the suspect is detained as mentioned in subsection (1)(a), or arrested as mentioned in subsection (1)(c), after such arrival, on detention or arrest (whether or not, in either case, the suspect has previously been informed of the rights by virtue of this subsection). (7) Where the suspect wishes to exercise a right to have intimation sent under subsection (2), the intimation must be sent by a constable (a) without delay, or (b) if some delay is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders, with no more delay than is necessary.
+In exceptional circumstances, a constable may delay the (8) suspects exercise of the right under subsection (3) so far as it is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders that the questioning of the suspect by a constable begins or continues without the suspect having had a private consultation with a solicitor. (9) Subsection (3) does not apply in relation to the questioning of the suspect by a constable for the purpose of obtaining the information mentioned in section 14(10) of this Act.
+Section 4 of the Manual of Guidance on Solicitor Access (2011) produced by the Association of Chief Police Officers in Scotland (ACPOS)in response to the enactment of section 15A states: 4.1 The [new section 15A] has been considered by many to be one of the most significant changes in Scots law for generations and the provision of solicitor access is at the heart of the change in the law.
+The right to access is one which can be waived, but the greatest of care must be taken if the suspect wishes to waive this right.
+Any waiver of the rights of a suspect must be an informed waiver, and must be fully recorded. 4.2 To ensure all suspects are fully informed in their decision, ACPOS consider that all suspects should be provided a specimen form of words, standardised in a manner like the common law caution, when offering a suspect their rights of solicitor access, as follows: You have the right to have a solicitor informed of your detention/voluntary attendance/arrest.
+Do you wish a solicitor advised of your detention? You also have the right to a private consultation with a solicitor before being questioned by police officers and at any time during questioning.
+Do you wish a private consultation with a solicitor before you are questioned? 4.3 Both these questions must be asked. 4.4 should be advised of the following on each occasion: If the answer to either of these questions is Yes, the suspect If you know a solicitor, they can be contacted on your behalf.
+Alternatively, another solicitor can be contacted for you.
+Which do you prefer? Your right is to a private personal consultation with a solicitor which can be in person or by telephone.
+In the first instance you will be provided the opportunity to speak with a solicitor by telephone to instruct them and seek advice.
+It is then your decision if you need a further private consultation with the solicitor. 4.5 The foregoing questions and statement are contained in the ACPOS Solicitor Access Recording Forms (SARFs).
+Two forms (respectively ACPOS SARF A and B) have been devised for the purpose of recording in writing the responses of the suspect to these enquiries.
+It should be acknowledged at the outset that compliance with these arrangements will not suffice in every case.
+Where the suspect is a child or a vulnerable adult, special arrangements may require to be put in place to ensure that his or her Convention rights are respected, due regard being had to the youth or vulnerability of the suspect in question.
+The Strasbourg jurisprudence also makes plain that, where an adult is vulnerable, the seriousness of the crime or crimes which he or she is suspected of having committed is also relevant.
+Where these are of a particularly serious nature (with particularly serious potential consequences in the event of a conviction) special care may be required to ensure that the suspects rights are respected.
+I do not endeavour in this opinion to express any view on what might be required in these special circumstances.
+It has recently been observed by this court that a national court should not, without strong reason, dilute or weaken the effect of Strasbourg case law; it is its duty to keep pace with it as it evolves over time; there is, on the other hand, no obligation on the national court to do more than that (Ambrose v Harris [2011] UKSC 43, 2011 SLT 1005, per Lord Hope at para 17, referring to the observations of Lord Bingham of Cornhill in R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, at para 20).
+Lord Bingham had gone on to observe that it was open to member states to provide for rights more generous than those guaranteed by the Convention but that such provision should not be the product of interpretation of the Convention by national courts.
+Accordingly, the present task for this court is, by examination primarily of Strasbourg jurisprudence, to identify as best it can the requirements which the Strasbourg Court has set for the making of an effectual waiver of Convention rights, and in particular of the right, implicit in article 6(1) as read with article 6(3)(c), of access to legal advice prior to being questioned by the police as a suspect at a police station.
+The broad context in which this task falls to be undertaken is reasonably clear; the difficulty arises in the detailed application of the relative principles.
+In Salduz v Turkey (2009) 49 EHRR 421 the Grand Chamber of the Strasbourg Court held that in order for the right to a fair trial to remain sufficiently practical and effective article 6(1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police (para 55).
+In Cadder v HM Advocate this court held that, notwithstanding other safeguards which Scots law and practice afforded a suspect in custody, application of Salduz in Scotland required that such a suspect, before being questioned by the police, have the right to be afforded legal advice (see especially per Lord Hope at paras 48 51, Lord Rodger at paras 92 93 and Lord Brown at para 108).
+The Strasbourg Court has repeatedly stated that the entitlement to the guarantees of a fair trial afforded under article 6, including the right of access to legal advice before questioning, can be waived, either expressly or tacitly (Salduz para 59, citing Kwiatkowska v Italy (Application No 52868/99) (unreported) given 30 November 2000).
+In Salduz at para 59 the Grand Chamber observed that if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance.
+The Court had reiterated at para 50 that it did not follow from the terms of article 6 that that article had no application to pre trial proceedings.
+The Court did not, however, identify what these minimum safeguards might be.
+There have been a number of subsequent decisions of the Court touching on the issue of the waiver of Salduz rights.
+I take them in chronological order.
+In Plonka v Poland (Application No 20310/02) (unreported) given 31 March 2009 where the applicant signed a form acknowledging that she had been informed of her rights, including the right to be assisted by a lawyer and the right to refuse to testify (para 7), it was concluded that there had been no express waiver of her right to be represented by a lawyer during police questioning (para 36).
+It was observed, under reference to para 59 of Salduz, that the waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance (para 37).
+The court noted that one of the specific features of the case was the applicants alcoholism and that she was in a vulnerable position at the time of the interview; the authorities should have taken this into account during questioning and in particular when apprising her of her right to be assisted by a lawyer (para 38).
+In these circumstances it was held that there had been no effectual waiver.
+In Pishchalnikov v Russia (Application No 7025/04) (unreported) given 24 September 2009 a case concerned with allegedly implied waiver the applicant had expressly requested legal advice but the questioning had proceeded without such legal advice being made available the Court (First Section) acknowledged (para 77) that a person might of his own free will, either expressly or tacitly, waive his article 6 rights.
+It continued: However, if it is to be effective for Convention purposes, a waiver of the right must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance A waiver of the right, once invoked, must not only be voluntary, but also constitute a knowing and intelligent relinquishment of a right.
+Before an accused can be said to have implicitly, through his conduct, waived an important right under article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be.
+That is, in a case where a Convention right had been invoked by the suspect he had made a specific request for legal assistance a valid waiver of that right must be not only voluntary but a knowing and intelligent relinquishment.
+The Court continued at para 78: The Court considers that the right to counsel, being a fundamental right among those which constitute the notion of fair trial and ensuring the effectiveness of the rest of the foreseen guarantees of article 6 of the Convention, is a prime example of those rights which require the special protection of the knowing and intelligent waiver standard.
+It is not to be ruled out that, after initially being advised of his rights, an accused may himself validly waive his rights and respond to interrogation.
+However, the Court strongly indicates that additional safeguards are necessary when the accused asks for counsel because if an accused has no lawyer, he has less chance of being informed of his rights and, as a consequence, there is less chance that they will be respected.
+The Court went on to hold (para 79) that on the facts it was not convinced that the applicant, in a knowing, explicit and unequivocal manner, waived his right to receive legal representation during the interrogations .
+In Yolda v Turkey (Application No 27503/04) (unreported) given 23 February 2010 the majority of the court (Second Section) noted (para 51) that in order to be effective for the purposes of the Convention any waiver of the right to take part in the trial must be established unequivocally and be surrounded by a minimum of guarantees as to its seriousness.
+At para 52 the majority said while [the applicant] was entitled to legal assistance during his custody and although he was reminded of this right, the applicant refused legal assistance.
+It also clearly emerges from his statements taken whilst in custody that the interested partys decision to waive his right to legal assistance must be considered to have been freely and voluntarily made.
+The minority dissented in the first place on the assessment of the particular circumstances saying: We feel that the majority too easily accepted that the applicant voluntarily waived the guarantee of legal assistance.
+Its second ground of dissent that [a]ny procedural choice that a person accused of a crime who is held in custody may make without a lawyer being able to inform and advise him cannot be free and informed is clearly not settled Strasbourg law.
+In Duman v Turkey (Application No 28439/03) (unreported) given 23 March 2010 another case of purportedly express waiver the Court referred to the test in Poitrimol v France (1993) 18 EHRR 130 a case concerning the absence of the accused from his trial.
+The test for effectual waiver there identified was that it must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance see Poitrimol at para 31.
+In addressing the particular circumstances (the incriminating statements and participation in reconstructions of events all apparently preceded any purported waiver) the Court said that it was not convinced that the presence of an undated, pre printed and signed document in the case file demonstrates with certainty that the applicant was properly informed of his right to a lawyer and his right to remain silent (para 50).
+In Sharkunov and Mezentsev v Russia (Application No 75330/01) (unreported) given 10 June 2010 the Court (First Section) held (at para 107) that the circumstances of the case disclose that the second applicant expressly and unequivocally waived the right to legal assistance .
+Emphasis was placed on the contemporaneous recording of that waiver (para 104).
+In Bortnik v Ukraine (Application No 39582/04) (unreported) given 27 January 2011 another case of purportedly express waiver the Court (Fifth Section) said that to be effective for Convention purposes a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum standards commensurate to its importance (para 40).
+Reference was again made to Poitrimol.
+In Bortnik it was recognised that the applicant was afraid of possible ill treatment (para 41), suffered from chronic alcoholism and belonged to a socially disadvantaged group, factors which could lead to the conclusion that he was particularly vulnerable, legally ignorant and susceptible to outside influence (para 43).
+In these circumstances the Court found that the applicants waiver of legal representation at the initial stage (when self incriminating statements had been made) was not genuine (para 44).
+In aman v Turkey (Application No 35292/05) (unreported) given 5 April 2011 the applicant was of Kurdish origin and illiterate with limited knowledge of Turkish.
+While held in Turkish custody she was, according to the Government, before each questioning reminded of her rights as an accused, including her right to be assisted by a lawyer; she had refused legal assistance (para 28).
+She underwent questioning without such assistance.
+Although, according to the Government, the applicant had refused legal assistance, the Court appears to have treated the case as one of implied waiver by conduct submitting to questioning without legal assistance (see para 32, though compare para 33).
+The essence of the Courts decision (that there had been a violation of article 6) was that the applicant, having an insufficient knowledge of Turkish and being without the help of an interpreter, could not be said to have effectively waived the right to legal assistance whether expressly or tacitly.
+This review of the Strasbourg jurisprudence would appear to suggest that the relevant criterion, at least in the case of an express waiver, is whether the waiver is established in an unequivocal manner and is attended by minimum safeguards appropriate to its importance.
+This is the formulation used by the Grand Chamber in Salduz and in all other cases in which the effectiveness of an express waiver was in issue.
+In Pishchalnikov after recital of that criterion it was observed: A waiver of the right, once invoked, must not only be voluntary, but must also constitute a knowing and intelligent relinquishment of a right.
+But that was a case in which the applicant had specifically invoked his right to legal assistance and the issue was whether, having subsequently responded to questioning without having that assistance, he had impliedly waived his right to it.
+The need to focus on a knowing and intelligent relinquishment of the right may be more acute where the waiver is founded on an implication from conduct (in particular, conduct apparently inconsistent with a prior specific request) rather than on an express statement.
+The criterion, accordingly, against which the current practice in Scotland is, in my view, to be judged is whether the waiver is in an unequivocal manner and is attended by minimum safeguards commensurate to its importance.
+I acknowledge immediately that the right to legal assistance for the purposes of police interview is important.
+This is not limited to protection against the making of self incriminating responses.
+As Mr Scott pointed out, there will be cases in which it is in the interests of a suspect to give a full and early account of matters; this may, if consistent with his account at trial, support his credibility.
+On the other hand, an account at trial which is inconsistent with the suspects responses to the police at interview may damage his credibility as a witness at his trial.
+Legal advice as to whether to respond may be of real importance in relation to any subsequent trial.
+I also recognise that quite apart from any bullying or other coercive conduct by the police at interview (against which the common law provides its own safeguards) presence as a suspect in police custody may, for some at least, be an intimidating experience.
+Mr Scott, under reference to para 53 of Salduz and para 68 of Pishchalnikov emphasised the importance of equality of arms between investigating authorities and the accused.
+The suspect faced with questioning by the police in the absence of legal assistance of any kind may be at a disadvantage as against his questioners.
+It should not too readily be concluded that there has been an effective waiver of such assistance.
+There should, accordingly, be close scrutiny of cases where it is asserted that there has been such waiver.
+Such scrutiny by the Strasbourg Court is clear from consideration of the cases which have come before it.
+Where the alleged waiver is express and is contemporaneously recorded in writing or in some other form, it should not be difficult to decide whether the waiver is unequivocal or not.
+Provided the language used to inform the suspect of the right to legal assistance is simple and the subsequent enquiry as to whether or not the suspect wishes to exercise his or her right is likewise simply expressed, it should not in the ordinary case be difficult to conclude that the suspect has understood what he or she has been told and has responded to the enquiry with an understanding of what has been put to him or her.
+The natural and legitimate inference in circumstances where the suspect has responded with a clear negative to the enquiry will be that he or she has a proper understanding, including an appreciation that in light of his or her answer legal assistance will not be made available for the purposes of the interview.
+Where the suspect is a child or an adult who is vulnerable (whether because of mental difficulties, addiction to incapacitating substances or otherwise) additional safeguards may be required.
+Indeed the circumstances of such individuals may in some cases be such that a waiver of the right to legal assistance is not in practical terms possible.
+Special measures for such persons may be part of the minimum safeguards required.
+Other safeguards include, as mentioned above, that the information given and the question asked are simply expressed and the answer recorded contemporaneously.
+It is also to be expected and in the absence of indications to the contrary to be assumed that the oral communications to the suspect are clearly and deliberately expressed, not mumbled or rushed.
+In my view both the statement as to the suspects right to legal assistance and the question posed as to whether he wishes to exercise that right as set out in SARF A are clearly expressed.
+A negative answer to the question, duly recorded, will give rise in ordinary circumstances to the conclusion that the suspect has unequivocally waived his or her right to have legal assistance for the purposes of the prospective questioning.
+The safeguards include the contemporaneous recording of the whole procedure, including the names and ranks of the officer reading the statement and of the corroborating officer, and the informing of the suspect that signing the record in no way prevents him from changing his mind at any time.
+Provision is then made for the suspects signature.
+There is, in my view, nothing in Strasbourg jurisprudence in so far as developed to date which lays down more demanding minimum safeguards than are provided for in this procedure.
+That is not to say that the procedure could not be improved.
+A number of suggestions in that regard were made in the hearing before us.
+Lord Hope discusses these in his judgment.
+With his observations I agree.
+I also agree with his proposed disposal of this reference.
+The issue of whether or not it would be fair for the Crown to lead and rely upon the respondents answers at interview is, in my view, best decided in the whole relevant circumstances by the sheriff, informed by the judgments delivered in this court.
+LORD KERR
+Once again, regrettably, I find myself in disagreement with my colleagues about the impact of article 6 of the European Convention on Human Rights and Fundamental Freedoms on the right of suspects in Scotland to legal advice in advance of and during interview by police officers.
+At the outset, however, I should make clear that I agree with Lord Hope that there is no absolute rule to be deduced from Strasbourg jurisprudence to the effect that, in order to make a valid waiver of the right to be advised by a lawyer, a person under interrogation by a police officer must have received legal advice on whether he should waive the right.
+What Strasbourg jurisprudence makes unmistakably clear, however, is that this is a right of supreme importance and that such a right can only be regarded as waived where the waiver is indubitably given and the consequences of giving it are properly understood.
+Various formulae have been used to express this principle.
+Thus statements have been made that the waiver must be knowing and intelligent or informed Pfeifer and Plankl v Austria (1992) 14 EHRR 692; Pishchalnikov v Russia (Application No 7025/04) (unreported) given 24 September 2009; that it must be unequivocal Oberschlick v Austria (1991) 19 EHRR 389; Kolu v Turkey (Application No 3581/97) (unreported) 2 August 2005; Sejdovic v Italy (2004) 42 EHRR 360; Pishchalnikov v Russia; that the person purporting to make the waiver must have reasonable foresight of the consequences of the relinquishment of the right Jones v United Kingdom (2003) 37 EHRR CD269; and that it must be accompanied by safeguards commensurate with the importance of the right to access to legal advice Salduz v Turkey (2008) 49 EHRR 421; Pishchalnikov v Russia.
+In para 15 of his judgment Lord Hope has said that rights which are waived may vary in importance according to the circumstances of each case.
+This is, of course, true but, in my view, Strasbourg jurisprudence is clear that, whatever the level of importance of the right, it can only be waived if the person waiving it has a proper understanding of the implications of the waiver.
+I do not understand Lord Hopes suggestion (in para 16) that care is required when considering cases where the right was different from the right to legal assistance to imply that anything less than an understanding of the nature of the right and the possible repercussions of its waiver will suffice for it to be effective.
+In any event, there can be no doubt as to the fundamental importance of the right to counsel.
+Strasbourg has repeatedly made this clear see for instance para 78 of Pishchalnikov where it was stated that the right to counsel was a fundamental right among those which constitute the notion of a fair trial and ensuring the effectiveness of the rest of the foreseen guarantees of article 6 of the Convention.
+The right, according to the court was, a prime example of those rights which require the special protection of the knowing and intelligent waiver standard.
+The necessary level of understanding on the part of a person waiving a right of the consequences of the waiver has perhaps not been as explicitly spelled out as it might have been in the many cases in this area which Lord Hope has so fully reviewed.
+Perhaps the best statement on the question is to be found in Millar v Dickson 2002 SC (PC) 30.
+At para 33 of his opinion Lord Bingham set out a series of propositions which, he said, formed the basis of the High Courts finding that there had been a tacit waiver of the right to be tried by an independent and impartial tribunal.
+The second of the propositions was this: If knowledge of some material matter is absent, even an express intention to waive a right may readily be recognised as insufficient to constitute a binding abandonment of the right.
+Lord Bingham, in para 34, accepted the correctness of this proposition.
+He expressly rejected the third proposition which the High Court had set out.
+It was to this effect: In general, regardless of the knowledge or ignorance or misapprehension of an accused or his agent as to the law, knowledge of the law will be imputed to him.
+Of that statement, Lord Bingham said that ignorance of the law will not excuse unlawful conduct; but it cannot suffice to found a plea of waiver para 34.
+Knowledge of all material matters is therefore a prerequisite to a valid waiver and if the person waiving the right is ignorant of a salient aspect of the law, this will prevent the waiver from being effective.
+It was somewhat faintly suggested by the Lord Advocate that knowledge of the consequences of waiving a right was required only in cases of tacit or implied waiver.
+There is no logical basis for distinguishing express waiver from implied waiver in relation to this requirement.
+It was not suggested that an express waiver should be regarded as effective unless it was properly informed.
+In this context, being informed must mean being aware of what will or might happen if the right is not availed of.
+As Lord Hope said at para 58 of Millar, Strasbourg jurisprudence shows that, unless the person is in full possession of all the facts, an alleged waiver of the right must be rejected as not being unequivocal.
+Mere possession of the facts is not enough, of course.
+A clear understanding and insight as to their significance is surely an essential concomitant.
+It is not enough that an accused person receive information, he must have the wherewithal to understand what that information means to his case.
+Otherwise, the information is of no value.
+All of this must be seen against the accepted position that it is for the prosecuting authorities who seek to rely on an alleged waiver to establish that it is effective.
+They must show not only that the accused person was made aware of his right to legal counsel; not only that he or she had stated that he did not wish to avail of it or, alternatively, implicitly waived their entitlement to it; not only that he or she was given sufficient information about the circumstances in which legal assistance could be provided; but also that the accused person appreciated what was at stake.
+Obviously, direct evidence of the degree of understanding of the accused person will not usually be available.
+Conventionally, the prosecuting authorities will seek to establish this by reference to the safeguards that are in place to ensure that this had happened and it is no coincidence that Strasbourg jurisprudence emphasises the need for the presence of safeguards commensurate with the importance of the right.
+Before turning to the safeguards which, the Lord Advocate claims, were efficacious to achieve that, I should say something about the assertion of Miss Cherry QC on his behalf that the narrow base of the decision in Salduz should inform the debate as to whether the safeguards are sufficient.
+The "narrow base" from which Salduz rights are derived is, Miss Cherry contends, the need to protect the suspect from self incrimination.
+The rationale underlying the protection against self incrimination is one of protecting the suspect from coercion of his will by improper compulsion (physical or psychological) by the police authorities.
+That rationale of protecting the suspect against coercion of his will provides the context against which the ECtHR's requirements that a waiver of Salduz rights be unequivocal and be attended by minimum safeguards commensurate to its importance should be construed and applied, according to Miss Cherry.
+I do not accept these arguments.
+At para 52 of the Salduz judgment the court said: National laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings.
+Now, true it is that in Scotland there is no statutory provision such as exists in the rest of the United Kingdom expressly permitting the tribunal of fact to draw adverse inferences against an accused because of his or her failure to mention in answer to police questioning facts on which they later relied.
+But it is not claimed that an accused who seeks to put forward on trial in Scotland a basis of defence that was not foreshadowed in his interviews with the police would not suffer a conspicuous disadvantage in consequence.
+Moreover, in Scotland, where corroboration of evidence that a sexual offence has been committed is necessary, a statement by an accused person that there was consensual sexual activity may supply (and, we were given to understand, frequently does supply) the needed corroboration.
+This is a paradigm example of national laws attaching consequences to the attitude of an accused at the initial stages of the investigation which have nothing whatever to do with his will being overborne by coercion.
+And it is clear that it was precisely this type of situation that was contemplated by the court in Salduz when it emphasised the importance of the need for access to legal advice at the early stage of the investigation.
+The narrow base argument is therefore plainly wrong.
+The need for a lawyer at the early stage of an investigation goes well beyond protecting the suspect from coercion of his will by improper compulsion.
+This much is unmistakably clear from what the court said in Salduz at para 54: the Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the tria1.
+At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence.
+In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. (emphasis supplied)
+The efficacy of safeguards to ensure that a waiver of the fundamental right to legal assistance is effective is therefore not to be judged solely by reference to the need to protect a suspect from coercion of his will by improper compulsion.
+It must be judged against the backdrop of his need to understand the ways in which the absence of a lawyer might have an impact on the viability of his defence to criminal charges about which he is questioned by police.
+The advocate depute relied on the safeguards which currently exist under Scots law and which, she said, were commensurate with the importance of the right to legal assistance.
+These included the administration of the caution which, Miss Cherry pointed out, occurred at various stages of the arrest and interview process.
+Nothing in the caution advises the suspect of his or her rights to the services of a lawyer, however.
+Its focus is on conveying to the suspect the right to remain silent.
+In June 2010, pending the judgment of this court in Cadder v HM Advocate, the Lord Advocate issued guidelines to Chief Constables in Scotland as to the steps to be taken to provide a suspect with access to a solicitor prior to and during interview.
+The guidelines provided that individuals who attended voluntarily for interview by police, or were detained under section 14 of the Criminal Procedure (Scotland) Act 1995 for that purpose, or were interviewed by police between arrest and charge should first be offered (a) a private consultation with a solicitor prior to interview; and (b) solicitor presence/consultation during the interview.
+The Lord Advocate's Guidelines were withdrawn in January 2011 to coincide with the introduction of a new ACPOS Manual of Guidance on Solicitor Access.
+Nothing in these guidelines was directed to an investigation of the suspects understanding of the reasons that he might need to have a solicitor.
+Nor were they designed to elicit information about why a suspect might choose not to have a solicitor.
+Nor did they contain any means of discovering whether the suspect had any appreciation of the implications of waiving his right to a solicitor.
+The procedure that they prescribed consisted of a one way form of communication with the suspect contributing only an affirmative or negative response to the imparting of the information that he was entitled to have a solicitor.
+The capacity of the caution and the guidelines to supply safeguards commensurate with the right to legal assistance is intrinsically open to question given the absence of meaningful contribution to the process by the suspect.
+But the obvious shortcomings of this procedure are demonstrated by research carried out by David J Cooke and Lorraine Philip in 1998 about the level of understanding of suspects of even basic elements of the procedure then adopted by police officers.
+Although, as Lord Hope has pointed out, this paper was written some time ago and does not reflect current practice in that the caution then used has been changed, the effect of the results of the survey on the adequacy of the up to date procedure is unmistakable.
+The Cooke and Philip research showed that the question customarily posed after the caution had been administered, viz do you understand was valueless because of the tendency of suspects to acquiesce without any real level of understanding.
+That was troubling enough but overall it was found that there was a poor level of comprehension of the simple caution and, even when this was broken down into the simplest of sentences, the level of understanding remained low.
+The conclusions of the report are sobering: it would appear that within Scotland a significant proportion of young offenders are unlikely to comprehend their legal rights when these are presented to them in the form of the common law caution.
+If the purpose of reciting the caution is to truly inform an accused person of his/her rights rather than merely to record some legal niceties then a simplified caution is required.
+Simplifying the caution may not be sufficient (Scott, 1996): police officers require to be trained to deliver the caution more effectively.
+No challenge to the validity of these findings has been presented nor has it been suggested that they are not eminently relevant to contemporary experience.
+There is therefore no reason to suppose that todays suspects will be any more able to appreciate the importance of the right to legal assistance, much less the implications of relinquishing that right, in light of these findings.
+Certainly, in the absence of any inquiry whatever (whether of the suspect directly or, if they are capable of revealing it, by examination of the surrounding circumstances) as to why a suspect has decided to waive the right, it is, in my opinion, simply impossible to say that an intelligent, knowing decision has been made.
+The Criminal Procedure (Scotland) Act, 1995 was amended with effect from 30 October 2010 and this now provides for the right of a suspect to have a private consultation with a solicitor before and during questioning by a police officer.
+The suspect must be informed of this right but there is nothing in the legislation nor in the ACPOS Manual of Guidance on Solicitor Access which requires any contribution from the suspect beyond confirming that he understands that he has the right and indicating whether he wishes to avail of it.
+Lord Hope has made suggestions (in paras 49, 51 of the judgment in McGowan) as to how the current procedures might be improved.
+The first of these is to follow the practice indicated by para 6.5 of Code C of the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers which was introduced in England to meet the requirements of the Police and Criminal Evidence Act 1984 (PACE).
+This requires a police officer to tell a suspect that he can speak to a solicitor by telephone if has refused initially to seek legal assistance.
+If the suspect continues to waive the right the police officer is then enjoined to ask the reason for this and to record the suspects reply.
+There are two obvious purposes behind these requirements in the Code.
+The first is to dispel the well known and widespread apprehension that suspects feel that if they elect to consult a solicitor this will delay their interview and prolong the period of their detention.
+The second is to obtain some insight into the reasons for not wishing to have the assistance of a lawyer so that misunderstandings can be corrected.
+Lord Hope makes it clear that he is not suggesting that these steps be taken in every case but, with respect, why should they not be? How can one have any insight into the reasons for waiving this fundamentally important right, if one does not ask why? If the decision to waive must be knowing and intelligent and, more pertinently, if the prosecuting authorities must be in a position to prove that it was such how can that be established if a bland refusal is all that one has to work on? Put simply, unless one knows why the decision to waive has been made, it cannot be said to be voluntary, informed and unequivocal.
+I can further explain my conclusion that some means of ascertaining why a suspect has chosen not to consult a solicitor is vital by reference to those cases emanating from Strasbourg post Salduz where this issue has been considered.
+First, Pishchalnikov at para 77 where the court said: A waiver of the right, once invoked, must not only be voluntary, but must also constitute a knowing and intelligent relinquishment of a right.
+Before an accused can be said to have implicitly, through his conduct, waived an important right under article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be.
+Of course, that statement was made in the context of implied waiver but for the reasons given earlier, foresight of the consequences, if it is necessary in the case of implied waiver, is equally required where the waiver is said to be express.
+It is interesting to note the two overlapping aspects of the requirement knowledge and intelligence on the one hand and reasonable foresight of the consequences on the other.
+The suspect must know what he is doing; he must be possessed of sufficient intelligence to appreciate the importance of the step that he is taking; and he must have reasonable foresight of the consequences for him of doing it.
+Miss Cherry suggested that the last requirement was fulfilled merely by the suspect knowing that he would be asked questions by police officers and that his solicitor would not be present.
+That surely cannot be right, if the knowing and intelligent element is to have any significance.
+I do not suggest that a suspect needs to be aware of every legal nuance that might arise in the course of his interview but he should be aware in a general sense that legal issues might arise and should have consciously decided that he is prepared to forgo the advice that a lawyer might give on those issues either before or in the course of the interview.
+In Yolda v Turkey (Application No 27503/04) (unreported) given 23 February 2010, the court held that the applicant had effectively waived his right to legal assistance.
+A careful review of the facts of this case is instructive.
+The applicant was 29 years old at the time of his arrest.
+After the charges were read to him he was required to sign a form which confirmed that he had been advised of his right to assistance by a lawyer of his choice or a court appointed lawyer.
+This happened more than 36 hours after he had been received into the custody of the Turkish police.
+Mr Yolda was asked whether he wished to have his family informed but he said that he did not want them to be contacted until he had appeared before the court.
+A document containing the handwritten note of this request by the applicant as well as his signature was produced to the court and was not disputed by him.
+On 24 December 2003, some six days after Mr Yolda had been taken into custody, the applicant's deposition was drawn up.
+According to this document, the applicant's right to remain silent, to have his relative informed, to the assistance of a lawyer and to bring the matter before a judge in order to object to his arrest and his custody were repeated to him.
+He stated that he was sorry and wished to benefit from law No 4959 of 29 July 2003 concerning reintegration in society.
+He signed his deposition thus drawn up.
+On the same date the applicant was referred to the Public Prosecutor, who informed him of his rights as stated in article 135 of the Code of Criminal procedure.
+Significantly, the applicant stated that he understood his rights and did not wish to be assisted by a lawyer or for his family to be informed of his situation.
+He confirmed his statement made in custody, acknowledged belonging to the organisation in question and having participated in activities as part of this, including armed attacks.
+He declared that he wished to benefit from the law on repentance.
+He signed the deposition.
+Later on the same date, 24 December 2003, Mr Yolda appeared before a judge.
+He was reminded by the judge of his right to legal assistance.
+The applicant again stated that he understood his rights but did not wish to be assisted by a lawyer and made his deposition alone.
+He repeated his previous depositions and signed the deposition made before the court.
+Mr Yolda had been informed or reminded therefore on no fewer than four occasions of his right to a lawyer.
+This information had been imparted to him by police officers, a public prosecutor and a judge.
+He twice asserted that he knew and understood what his rights were.
+He was clearly familiar with the law on repentance and re integration into society.
+It is clear that these particular circumstances bore heavily on the decision of the European Court that there had been an effective waiver of the applicants rights to legal assistance.
+This is especially clear from the opening words of para 52 of the courts judgment: Under the particular circumstances of this case, the Court notes that the applicant had been informed of his right to be assisted by a lawyer whilst in custody.
+In this connection the police drew up a report stating his rights during custody, and in particular that of being assisted by a lawyer (paragraph 6 above).
+After reading the report, a copy signed by the applicant was delivered to him.
+Furthermore, the police also reminded the interested party that he was entitled to see his family.
+The applicant stated that he wished to contact his family after appearing before the competent court (paragraph 7 above).
+Therefore while he was entitled to legal assistance during his custody and although he was reminded of this right, the applicant refused legal assistance.
+It also clearly emerges from his statements taken whilst in custody that the interested party's decision to waive his right to legal assistance must be considered to have been freely and voluntarily made.
+Hence, the applicant's waiver of this right was unequivocal and surrounded by a minimum guarantee (a contrario, Padalov v Bulgaria, No 54784/00 para 54, 10 August 2006). (Emphasis supplied)
+Lord Hope has said (in para 32 of his judgment in McGowan) that this decision indicates that where it is shown that the accused, having been informed of his rights, states that he does not want to exercise them, his express waiver of those rights will normally be held to be effective.
+I do not so read it.
+Certainly no statement to that effect is to be found in the text of the judgment and it is replete with references to the importance of the particular facts of the case see paras 48, 50, 52, 53 and 54.
+In Galstyan v Armenia (2007) 50 EHRR 618 the European Court found that the applicant had been informed of his right to a lawyer both by police officers and the judge before whom he appeared.
+The applicant had chosen to represent himself this was a specific finding of ECtHR para 91.
+It was the governments case that he had been advised by police to avail of the services of a lawyer but stated that he did not wish to have one para 16.
+The applicant was an authorised election assistant for the main opposition candidate in the presidential election and, when he appeared before the judge, was sufficiently robust to demand justice and lawfulness when asked by the judge what he wanted.
+There is nothing in the report which suggests that the presence of a lawyer would have made a significant difference to the outcome.
+This is a case from which, I think, it would be difficult to discern any principle of general application.
+In Sharkunov and Mezentsev v Russia (Application No 75330/01) (unreported) given 10 June 2010, (referred to by Lord Hope in para 33 of his judgment in McGowan) the first applicant made no statement or admissions after his arrest, and the court did not consider it necessary to make findings in his case on his complaint that there had been a violation of article 6 because he had been denied legal assistance.
+So far as the second applicant was concerned, the court found that he had waived his right to legal assistance, and had expressly said that the waiver was not related to a lack of financial means.
+Subsequently, when he asked for legal assistance, this was obtained promptly.
+Significantly, he did not complain that he was not provided with legal assistance between December 1999 and February 2000.
+And the court found (see para 108) that the case file did not disclose that the second applicant made any statement or admission between those dates.
+Again, this is a case that is confined to its own facts and upon which no principle of general application can be founded.
+Paskal v Ukraine (Application No 24652/04) (unreported) given 15 September 2011 was a case in which the facts were somewhat unusual.
+The applicant had a university degree in law.
+When under interrogation he was a serving police officer.
+He had been arrested on suspicion of having taken part in a robbery.
+He signed a procedural rights notification form and noted that he wished to appoint a lawyer whom he named as his advocate.
+He was then questioned, without a lawyer being present, about the robbery.
+It was argued that this was a case of an implied waiver.
+Most significantly, of course, the applicant, when questioned without a lawyer, did not make any incriminating statements see para 75 of the judgment.
+The court also observed in that paragraph that because of the applicants educational and professional background as a lawyer and a police officer, his participation in the questioning was rather well informed and deliberate.
+In para 76 of Paskal ECtHR stated that the rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction, citing Salduz para 55.
+It also stated that the very fact of restricting access of a detained suspect to a lawyer may prejudice the rights of the defence even where no incriminating statements were obtained as a result.
+These are strong statements which, unlike the cases of Yolda, Galstyan and Sharkunov and Mezentsev, do have general import.
+The principle to be derived from them is clear.
+As a general rule, incriminating statements given during police interrogation where there has not been access to a lawyer irretrievably prejudice the rights of the defence when they are used to obtain a conviction.
+But the courts disapproval of the adducing of evidence given by a suspect who has not had the benefit of legal assistance did not stop there.
+At para 79 the court said that the very fact of questioning a suspect without enabling him to consult a lawyer may shift the power balance between the parties in breach of the fair trial guarantees even absent any appearance of negative consequences for the outcome of the proceedings.
+This sends a powerful message.
+It emphasises the exceptionality of the circumstances in which statements made by suspects who have not had access to a lawyer should be admitted in evidence.
+Now, as it happens, the European Court in Paskal decided that there had been an effective waiver of the right to legal assistance and it is on that aspect of the decision that Lord Hope has concentrated.
+But I suggest that this conclusion reflects the particular, and somewhat unusual, facts of the case and of far greater significance are the expressions of general principle which it contains and which I have referred to above.
+It was because the applicant never raised the matter of the lack of legal assistance during his trial and because, although he complained in his cassation appeal in general terms that his right to defence had been breached, he made no express mention of the questioning that took place in the absence of legal assistance that the court considered that a breach of article 6 had not been established.
+The court was also influenced, to some extent, by the applicants background as a law graduate and police officer see paras 78 and 79 of the judgment.
+But these are, as I have said, unusual facts.
+They do not remotely sound on the issues that arise in these appeals and reference.
+They are peculiar to that particular case.
+Paskal is a significant case, however, but significant in my view in favour of the arguments advanced on behalf of the respondents in the appeal and on behalf of B in the reference.
+It is not particularly easy to assemble a list of coherent principles that should guide consideration by courts of the difficult question of waiver of the right to legal assistance.
+With some misgivings, I suggest that the following are, while by no means exhaustive, perhaps useful guidelines to follow: i) Each case must be examined on its own particular facts.
+Close scrutiny of the claim that the right has been waived will always be required.
+Among the circumstances that will be relevant are the gravity of the offence and the sensitive nature of the charges; ii) The background of the suspect may be relevant, especially if it includes an expertise in legal matters but it should not be assumed that previous experience with police procedures will make it more likely that a waiver is effective; iii) Unless it is shown that the suspect had a proper insight into the significance of the decision to waive his right, the purported waiver should not be regarded as effective; the most obvious and easiest way of showing this is when the suspect has been advised by a lawyer as to whether he should waive the right; iv) A decision to waive the right which is prompted by a desire to get the interview over with or because the suspect does not wish to wait for his solicitor to arrive or because he erroneously believes that he may have to pay for the services of a solicitor are all strong indicators that the waiver is not unequivocal; v) Unless there is clear evidence that the suspect understands the significance of waiving his right to a solicitor, he should be asked why he has decided not to exercise his right; his reasons should be recorded; and any misunderstanding should be corrected.
+He should also be informed that a telephone consultation with a solicitor can be arranged. (These minimum safeguards were not present in any of the cases under appeal or the subject of the reference); vi) Simply because a suspect evinces a willingness to answer questions, it is not to be presumed that he has tacitly waived his right to access to legal advice.
+Conclusions
+I would answer the first question in the negative for the reasons given by Lord Hope.
+I would answer the second question in the negative also.
+No attempt was made to discover why B had refused to avail of the legal assistance.
+I consider that it is impossible to say on the available evidence that his was an unequivocal and informed decision to waive his right under article 6.
+In para 58 of his judgment, Lord Brown suggests that it is surely obvious that the point of a lawyer is to advise on any legal issues that may arise and that it is also obvious that if a suspect chooses to forego this right he will be questioned without the benefit of such advice.
+I agree.
+But knowledge of the obvious is not the same as understanding that this may carry grave implications for the suspect.
+Otherwise there would be no need for any examination of the circumstances in which a suspect has declined to avail of legal assistance.
+His statement that he did not wish to have a lawyer would determine the issue.
+He would be presumed to know the obvious and that would be, in Lord Browns view, an end of the matter.
+With respect to Lord Brown, to seek to be sure that the suspect realises that he is foregoing the chance to have a lawyer advise him on legal issues that might bear directly on his defence does not seem to me to ask for too much.
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+Iceland is one of the most productive countries per capita in the world.
+It ranks high in economic and political stability.
+But the global financial crisis of 2008 exposed its dependence on the banking sector, and in the autumn of that year the nations entire banking system failed.
+The dispute which has given rise to this appeal is one of the products of that crisis.
+It has its origin too in the fact that Iceland is a party, as are all the Member States of the European Union, to the Agreement on the European Economic Area (the EEA Agreement) which was established on 1 January 1994.
+On 6 December 2002 Annex IX (Financial Services) to the EEA Agreement was amended by the incorporation of Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions (the Directive).
+Landsbanki Islands hf (Landsbanki) and its wholly owned subsidiary Heritable Bank plc (Heritable) are both credit institutions for the purposes of article 1(1) of the Directive.
+Landsbanki is a company incorporated under the laws of Iceland with its registered office in Reykjavik.
+Heritable is a company incorporated under the Companies Act 1985 with its registered office in Glasgow.
+Both companies are the subject of proceedings resulting from insolvency which were commenced on 7 October 2008.
+On that date the Financial Services Authority of Iceland, in the exercise of emergency powers conferred on it the previous day by the Icelandic Parliament, took control of Landsbanki, which was later granted a moratorium on its liabilities.
+On 29 April 2009, under provisions by which financial undertakings which had been granted a moratorium were deemed to be in a winding up proceeding subject to the ordinary rules, the District Court of Reykjavik appointed a winding up board to the company.
+Landsbankis winding up board is the appellant in this appeal.
+On 7 October 2008 the Court of Session appointed joint administrators to Heritable under paragraph 13 of Schedule B1 to the Insolvency Act 1986 on the application of the Financial Services Authority.
+The joint administrators of Heritable are the respondents to the appeal.
+The Directive was implemented in the United Kingdom by The Credit Institutions (Reorganisation and Winding up) Regulations 2004 (the Regulations).
+Landsbanki is an EEA credit institution for the purpose of Part 2 of the Regulations.
+Heritable is a UK credit institution for the purposes of Parts 3 and 4.
+The issue before the court concerns claims submitted by Landsbanki in the administration of Heritable and claims by Heritable against Landsbanki.
+It relates to the effect in the administration of Heritable of a decision made by Heritable not to pursue its claims in the winding up of Landsbanki.
+Its resolution depends on the proper construction of the Regulations and the Directive.
+The competing claims
+On 8 December 2008 Landsbanki submitted three claims in the administration of Heritable: (1) a claim for about 86m in respect of a revolving credit facility dated 31 May 2002 which was governed by English law (the Landsbanki rcf claim); (2) a contingent claim for 50m under a subordinated loan agreement (the subordinated debt claim); and (3) a contingent claim of 1,011,817,245 in respect of liabilities under a guarantee of Heritables liabilities (the guarantee claim).
+On 6 November 2009 the administrators of Heritable rejected the Landsbanki rcf claim under section 49(2) of the Bankruptcy (Scotland) Act 1985 (the 1985 Act), as applied to administrations by rules 2.41(1) and 4.16 of the Insolvency (Scotland) Rules 1986.
+This was on the ground that Heritable had claims against Landsbanki which equalled or exceeded the amount of the Landsbanki rcf claim which served to extinguish it.
+This decision was based on the application of the rule of Scots law on the balancing of accounts in bankruptcy.
+On 26 November 2009 the administrators accepted the subordinated debt claim and the guarantee claim, but valued them at nil under paragraph 3(1) of Schedule 1 to the 1985 Act on the basis that there was no prospect of the relevant contingencies being satisfied.
+On 4 May 2010 a fourth claim was submitted by the winding up board of Landsbanki for 17,122,221.92 under a master participation agreement (the Landsbanki mpa claim).
+It also was rejected by the administrators of Heritable.
+On 20 November 2009 Landsbanki appealed to the Court of Session against the decision by the administrators of Heritable to reject the Landsbanki rcf claim.
+This was commenced by way of a note in the petition for the making of an administration order in respect of Heritable.
+The note was later amended to include an appeal against the decisions to value the subordinated debt claim and the guarantee claim at nil.
+It has not yet been amended to include an appeal against the rejection of the Landsbanki mpa claim.
+The issue in the appeal to this court is concerned only with the rejection of the Landsbanki rcf claim by the administrators.
+On 30 October 2009 Heritable submitted four claims in the winding up of Landsbanki: (1) a claim for 661,673,236 as damages for breach of the revolving credit facility dated 31 May 2002 (the Heritable rcf claim); (2) a claim of 234,850,801 as damages under the master participation agreement (the Heritable mpa claim); (3) a claim for 7,665,032 under certain interest swap transactions in connection with an ISDA Master Agreement dated 23 December 2004 (the swap claim); and (4) a claim for 1,099,978 as reimbursement of payments made by Heritable in connection with Landsbankis Icesave accounts in the United Kingdom (the Icesave claim).
+In each claim letter it was stated that, subject to the extent to which Heritable was required or permitted by the law governing Heritables administration to set off any liabilities it owed to Landsbanki against amounts owed by Landsbanki to Heritable, Heritables claims were to rank as unsecured claims in the winding up of Landsbanki.
+By notices dated 14 January 2010 Landsbankis winding up board rejected the Heritable rcf claim, the Heritable mpa claim and the Icesave claim.
+The swap claim was accepted, but only to the extent of 7,247,284.
+The proceedings in Iceland
+The administrators of Heritable objected to the decision by the winding up board of Landsbanki to reject their claims by a notice of objection dated 22 February 2010.
+As Landsbanki had already commenced proceedings in the Court of Session, the administrators asked that no further steps be taken in relation to their objection until Landsbankis appeal before the Court of Session had been finally determined.
+By letters dated 8 March and 19 March 2010 the winding up board of Landsbanki declined to accede to this request.
+On 23 March 2010 the winding up board referred the administrators objections to the District Court of Reykjavik under article 120 of the Icelandic Bankruptcy Act 1991 (the BA 1991).
+On 14 April 2010 the administrators sought a stay of the proceedings before that court pending a final determination of the preliminary issues that had been identified in relation to Landsbankis appeal before the Court of Session.
+On 17 May 2010 the District Court of Reykjavik declined to grant a stay of those proceedings.
+On 12 August 2010 the administrators of Heritable formally withdrew the Heritable claims, including the swap claim, from Landsbankis winding up.
+On 2 September 2010 the winding up board of Landsbanki issued a counterclaim in the District Court of Reykjavik in which it sought a declaration that the Heritable claims had been extinguished by article 118 of the BA 1991.
+On 14 September 2010 the administrators applied to discontinue the article 120 proceedings before that court in relation to the rejection of Heritables claims by the winding up board.
+Their application was granted on 20 September 2010.
+The winding up board appealed against that decision to the Icelandic Supreme Court, but it was affirmed by the Supreme Court on 21 October 2010.
+It concluded that there was no need to rule on the counterclaim by Landsbankis winding up board because it was incompetent.
+The proceedings in Scotland
+The argument for Landsbankis winding up board in the note which they lodged in the proceedings in the Court of Session was that the decision to reject the Heritable claims in the Icelandic proceedings had effect and was binding in the United Kingdom in terms of regulation 5(1) of the Regulations.
+The administrators of Heritable were therefore bound to hold that Heritable had no claim against Landsbanki which could operate by way of set off.
+It was averred that, as there were no other defences to the Landsbanki rcf claim, the administrators were bound to allow that claim in full.
+In their answers to the note the administrators took a plea to the relevancy of the note in so far as it relied on the decision in the winding up of Landsbanki.
+A debate took place on the relevancy of the Landsbanki winding up boards averments before the Lord Ordinary, Lord Glennie, in June 2010.
+There were two issues.
+The first was whether, under regulation 5(1) of the Regulations, the decision by the winding up board to reject the Heritable claims had effect and should be recognised in the United Kingdom.
+The second was whether any future determination by the District Court of Reykjavik of the winding up boards rejection of Heritables claims would found a plea of res judicata in the Court of Session.
+On 20 July 2010 the Lord Ordinary rejected the arguments which had been submitted by the administrators in support of their plea to the relevancy on both grounds: [2010] CSOH 100, [2011] 2 BCLC 437.
+He held, having regard to the terms of the Directive, that a ruling by Landsbankis winding up board in the Icelandic winding up proceedings should, to the extent that it was final and binding in Iceland, be recognised and given effect in the United Kingdom, and that effect should also be given to the extinguishment of a claim under Icelandic law if not presented within a particular time: para 65.
+He was not persuaded that there was any limit on the recognition to be given to a ruling in the Landsbanki proceedings in Iceland as to the validity of Heritables claims against Landsbanki.
+So if the Icelandic court were to decide that there was no valid claim, its decision would have effect in the United Kingdom as if it were part of the general law of insolvency of the United Kingdom and would have to be given effect in the administration of Heritable: para 81.
+The administrators of Heritable reclaimed against the Lord Ordinarys interlocutor.
+By the time of the hearing in the Inner House res judicata was no longer a live issue, as Heritable had withdrawn its claims in the Landsbanki winding up.
+On 6 July 2011 Landsbankis winding up board was given permission to amend its pleadings to enable it to argue that, as the effect of the withdrawal of Heritables claims and the discontinuance of the article 120 proceedings in Iceland was that the winding up boards determination of those claims was final and binding under Icelandic law, Heritables claims had been extinguished as a matter of the insolvency law of Iceland and that they had also been extinguished by reason of not having been submitted within the prescribed time.
+On 28 September 2011 the First Division (Lord President Hamilton, Lord Mackay of Drumadoon and Lord Marnoch) recalled the Lord Ordinarys interlocutor: [2011] CSIH 61, 2012 SC 209.
+It held that, in accordance with the principles of unity and universality required by the Directive, the affairs of Heritable, a United Kingdom credit institution which was itself in insolvency, should be wound up with the defences available under its own general law to protect the interests of its creditors, and in particular that effect should be given to regulation 22(3)(d) of the Regulations under which the law of the United Kingdom was to determine the conditions under which set off might be invoked in Heritables winding up: para 38.
+Landsbankis winding up board now have appealed against that decision to this court.
+The legal framework
+(a) Icelandic law
+In paragraph 17 of its note Landsbankis winding up board made averments about Icelandic law in relation to the winding up of Landsbanki to the following effect, which the Lord Ordinary accepted as well founded for the purposes of the debate before him: para 21.
+The winding up of a financial undertaking such as Landsbanki is subject to the same rules as apply to bankruptcy proceedings generally.
+Article 116 of BA 1991 provides that legal action cannot be brought against a bankrupt estate unless expressly permitted by law.
+An action for payment cannot be commenced against a bankrupt, although an action which is still pending can be continued.
+Article 117 provides that a party who is unable to pursue his claim by action but wishes to maintain a claim against a bankrupts estate must submit a statement of his claim to the trustee in bankruptcy.
+The claim must be submitted within the period stated in the trustees notice issued to creditors under article 85.
+It will have the same effects as if a legal action had been filed in respect of it at the point in time when the trustee receives the statement.
+Article 118 provides that, if a claim which is not the subject of a pending action is not submitted to the trustee in bankruptcy within the prescribed time, it is cancelled with respect to the bankrupts estate.
+This is a more rigid system than that which applies to the adjudication of claims in Scotland under sections 48 53A of the 1985 Act.
+But every system has to set a timetable for the submission of claims, and the Icelandic system has the merit of certainty and of minimising the risk of delay.
+Article 119 provides that, once the period for stating claims is over, the trustee in bankruptcy is required to prepare a list of the submitted claims and a statement of how he thinks each claim should be recognised.
+An opportunity is given by article 120 to a claimant who is unwilling to accept the ruling of the trustee in bankruptcy as to the recognition of his claim to state his objection at a meeting of the creditors held to consider the stated claims, or to notify his objection by letter no later than the date of the meeting.
+If the trustee is unable to settle the issue, he is required to refer the matter to the district court.
+If his position on the claim is not challenged, it is to be regarded as finally approved during the bankruptcy proceedings.
+Applying the law as so described to the claims by Heritable, it was averred for Landsbankis winding up board that the submission of claims by Heritable was the equivalent of the bringing of a legal action against Landsbanki.
+Any claim that was not submitted in the winding up had been extinguished, and those claims that were submitted had been adjudicated upon.
+The administrators of Heritable had objected to the determination of the winding up board and the matter had been referred to the district court in Reykjavik.
+The question whether or not Heritables claims could be maintained against Landsbanki would depend on the result of the proceedings in Iceland.
+On 12 August 2010, following the decision of the Lord Ordinary that the arguments for the winding up board were well founded, the administrators of Heritable withdrew Heritables claims from the winding up.
+In their notice of withdrawal the administrators said that this was being done without prejudice to Heritables right to rely on its claims against Landsbanki for the purpose of insolvency set off under Scots insolvency law.
+On 21 October 2010 (as already narrated in para 11, above) the Icelandic Supreme Court refused the winding up boards appeal against the decision of the district court to discontinue the article 120 proceedings in relation to the winding up boards rejection of the Heritable rcf claim, the Heritable mpa claim, the Icesave claim and the balance of the swap claim.
+Landsbankis winding up board submits that, according to Icelandic insolvency law, the effect of these developments is that there was a rejection of the Heritable claims which was never overturned and that their withdrawal has served to extinguish them under article 118 of BA 1991.
+So they are no longer maintainable against Landsbanki, and the administrators attempt to reserve Heritables rights was meaningless and ineffective as the consequences of Icelandic law have effect in Scotland under regulation 5(1).
+The meaning and effect of that regulation is at the heart of the winding up boards argument.
+(b) the Directive
+The primary EU instrument dealing with cross border insolvency is Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (the 2000 Insolvency Regulation).
+But article 1(2) of the 2000 Insolvency Regulation provides that it shall not apply to insolvency proceedings concerning credit institutions and a number of other undertakings in the financial sector.
+The reorganisation and winding up of credit institutions is provided for instead by the Directive, which required national implementation by the Member States and by non EU countries in the EEA, including Iceland, by 5 May 2004.
+Among the recitals to the Directive are the following: (6) The administrative or judicial authorities of the home Member State must have sole power to decide upon and to implement the reorganisation measures provided for in the law and practices in force in that Member State.
+Owing to the difficulty of harmonising Member States laws and practices, it is necessary to establish mutual recognition by the Member States of the measures taken by each of them to restore to viability the credit institutions which it has authorised. (14) In the absence of reorganisation measures, or in the event of such measures failing, the credit institutions in difficulty must be wound up.
+Provision should be made in such cases for mutual recognition of winding up proceedings and of their effects in the Community. (16) Equal treatment of creditors requires that the credit institution is wound up according to the principles of unity and universality, which require the administrative or judicial authorities of the home Member State to have sole jurisdiction and their decisions to be recognised and to be capable of producing in all the other Member States, without any formality, the effects ascribed to them by the law of the home Member State, except where this Directive provides otherwise. (17) The exemption concerning the effects of reorganisation measures and winding up proceedings on certain contracts and rights is limited to those effects and does not cover other questions concerning reorganisation measures and winding up proceedings such as the lodging, verification, admission and ranking of claims concerning those contracts and rights and the rules governing the distribution of the proceeds of the realisation of the assets, which are governed by the law of the home Member State. (23) Although it is important to follow the principle that the law of the home Member State determines all the effects of reorganisation measures or winding up proceedings, both procedural and substantive, it is also necessary to bear in mind that those effects may conflict with the rules normally applicable in the context of the economic and financial activity of the credit institution in question and its branches in other Member States.
+In some cases reference to the law of another Member State represents an unavoidable qualification of the principle that the law of the home Member State is to apply.
+Article 2 of the Directive defines the expression reorganisation measures as meaning measures which are intended to preserve or restore the financial situation of a credit institution and which could affect third parties pre existing rights, including among other things reduction of claims.
+It defines winding up proceedings as meaning proceedings whose aim is to realise assets under the supervision of the administrative or judicial authorities of a Member State, including where the proceedings are terminated by a composition or other similar measure.
+Article 3 provides that the administrative or judicial authorities of the home Member State shall alone be empowered to decide on the implementation of one or more reorganisation measures in a credit institution, including branches established in other Member States.
+These reorganisation measures are to be applied in accordance with the laws, regulations and procedures applicable in the home Member State, unless otherwise provided in the Directive, and they are to be fully effective in accordance with the legislation of that Member State throughout the Community without any further formalities, including as against third parties in other Member States.
+Article 9, which deals with winding up proceedings, is to a similar effect.
+It provides that the administrative or judicial authorities of the home Member State which are responsible for the winding up shall alone be empowered to decide on the opening of the winding up proceedings concerning a credit institution, including branches established in other Member States.
+A decision to open winding up proceedings taken by the administrative or judicial authority of the home Member State is to be recognised without further formality within the territory of all other Member States and shall be effective there when the decision is effective in the Member State in which the proceedings are opened.
+Article 10, which is headed Law applicable, provides in paragraph 1 that a credit institution is to be wound up in accordance with the laws, regulations and procedures applicable in its home Member State insofar as the Directive does not provide otherwise.
+Paragraph 2 of this article states that the law of the home Member State shall determine in particular, among other things (c) the conditions under which set offs may be invoked; (g) the rules governing the lodging, verification and admission of claims; (h) the rules governing the distribution of the proceeds of the realisation of assets, the ranking of claims and the rights of creditors who have obtained partial satisfaction after the opening of insolvency proceedings by virtue of a right in re or through set off; (l) the rules relating to the voidness, voidability or unenforceability of legal acts detrimental to all the creditors.
+Article 21 is headed third parties rights in re.
+It provides that the adoption of reorganisation measures or the opening of winding up proceedings shall not affect the rights in re of creditors or third parties in respect of tangible or intangible, moveable or immoveable assets belonging to the credit institution which are situated within the territory of another Member State at the time of the adoption of such measures or the opening of such proceedings.
+Article 23 is headed Set off.
+It provides: (1) The adoption of reorganisation measures or the opening of winding up proceedings shall not affect the right of creditors to demand the set off of their claims against the claims of the credit institution, where such a set off is permitted by the law applicable to the credit institutions claim. (2) Paragraph 1 shall not preclude the actions for voidness, voidablity or unenforceability laid down in article 10(2)(l).
+(c) the Regulations
+As the Lord President observed, the structure of the Regulations which were made to implement the Directive as from 5 May 2004 does not mirror exactly that of the Directive which they transpose: 2012 SLT 247, para 9.
+But it has not been suggested that the Directive has not been properly implemented by the Regulations.
+Their effect, as described in the Explanatory Note, is that no winding up proceedings or reorganisation measures in respect of EEA credit institutions can be undertaken in the United Kingdom except in the circumstances permitted by the Regulations, and that EEA reorganisation measures and winding up proceedings are to be recognised in the United Kingdom.
+An EEA credit institution is defined in regulation 2 as meaning an EEA undertaking, other than a UK institution, of a description which applies to Landsbanki.
+A UK credit institution means an undertaking whose head office is in the United Kingdom of a description that applies to Heritable.
+The provisions dealing with the matters as so described are set out in regulations 3 and 5 in Part 2 of the Regulations, which is headed Insolvency Measures and Proceedings: Jurisdiction in Relation to Credit Institutions.
+Regulation 3(1) provides that on or after 5 May 2004 a court in the United Kingdom may not, in relation to an EEA credit institution or any branch of an EEA credit institution, make a winding up order, appoint a provisional liquidator or make an administration order.
+It gives effect to the principle of mutual recognition referred to in recital 14 of the Directive.
+Regulation 5(1), the meaning and effect of which (as mentioned earlier: see para 22, above) lies at the heart of the argument for Landsbanki, provides: An EEA insolvency measure has effect in the United Kingdom in relation to (a) any branch of an EEA credit institution, (b) any property or other assets of that credit institution, (c) any debt or liability of that credit institution, as if it were part of the general law of insolvency of the United Kingdom.
+Regulation 5(2) provides that a competent officer may exercise in the United Kingdom in relation to a credit institution which is subject to an EEA insolvency measure any function which he is entitled to exercise in relation to that credit institution in the relevant EEA State.
+Regulation 5(6), read together with the definition of the expressions it uses in regulation 2, provides that an EEA insolvency measure means, as the case may be, a reorganisation measure or winding up proceeding as defined in article 2 of the Directive (see para 25, above) which has effect in relation to an EEA credit institution by virtue of the law of the relevant EEA State.
+The winding up of Landsbanki would appear to be an insolvency measure for the purposes of regulation 5(1).
+Part 3 of the Regulations is headed Modifications of the Law of Insolvency: Notification and Publication.
+Regulation 7, which is in that Part, provides: The general law of insolvency has effect in relation to UK credit institutions subject to the provisions of this Part.
+There then follow provisions dealing with various procedural matters, such as consultation with the Financial Services Authority prior to a voluntary winding up, notification to the Financial Services Authority by the court of any decision, order or appointment that it makes, notification by the Financial Services Authority to the EEA regulator of any EEA state in which the UK credit institution has a branch, notification to creditors, submission of claims by EEA creditors, reports to creditors, service of notices and documents and disclosure of confidential information received from an EEA regulator.
+Part 4 of the Regulations is headed Reorganisation or winding up of UK Credit Institutions: Recognition of EEA Rights.
+Regulation 19(1)(b) provides that this Part applies where an administration order made under paragraph 13 of Schedule B1 to the 1986 Act on or after 5 May 2004 is in force in relation to a UK credit institution.
+It applies therefore to the administration of Heritable.
+Regulation 21(1) provides that for the purposes of Part 4 affected credit institution means a UK credit institution which is the subject of a relevant reorganisation or winding up.
+It also provides that relevant reorganisation or relevant winding up means any voluntary arrangement, administration, winding up, or order referred to in regulation 19(1) to which Part 4 applies.
+Heritable is an affected credit institution within the meaning of that expression as defined in this article.
+Regulation 22 is headed EEA rights: applicable law in the winding up of a UK credit institution.
+It provides, so far as material to this case, as follows: (1) This regulation is subject to the provisions of regulations 23 to 35. (2) In a relevant winding up, the matters mentioned in paragraph (3) are to be determined in accordance with the general law of insolvency of the United Kingdom. (3) Those matters are (d) the conditions under which set off may be invoked; (g) the claims which are to be lodged against the estate of the affected credit institution; (i) the rules governing (i) the lodging, verification and admission of claims, (ii) the distribution of proceeds from the realisation of assets, (iii) the ranking of claims, (iv) the rights of creditors who have obtained partial satisfaction after the opening of the relevant winding up by virtue of a right in rem or set off.
+Regulation 26 deals with third parties rights in rem in a way that gives domestic effect to article 21 of the Directive.
+A relevant reorganisation or winding up is not to affect the rights in rem of creditors or third parties in respect of assets belonging to the affected credit institution which are situated within the territory of an EEA state at the relevant time.
+Regulation 28 deals with creditors rights to set off in a way that gives domestic effect to article 23 of the Directive.
+It provides: (1) A relevant reorganisation or a relevant winding up shall not affect the right of creditors to demand the set off of their claims against the claims of the affected credit institution, where such a set off is permitted by the law applicable to the affected credit institutions claim. (2) Paragraph (1) does not preclude actions for voidness, voidability or unenforceability of legal acts detrimental to creditors under the general law of insolvency of the United Kingdom.
+The issue
+As will be apparent from what has been said so far, the issue in this case is how cross claims between two credit institutions are to be dealt with in insolvency proceedings in two different EEA States.
+As at the date when each EEA proceeding was opened, there were claims by Landsbanki against Heritable in Scotland and claims by Heritable against Landsbanki in Iceland.
+The winding up board of Landsbanki rejected Heritables claims, and Heritable later withdrew them.
+The result is that they are no longer provable in Landsbankis winding up under Icelandic law.
+The administrators of Heritable have rejected the Landsbanki rcf claim by the application of set off.
+This was done by applying the principle known to Scots law as the balancing of accounts in bankruptcy.
+If this principle is available to the administrators under regulation 22(3)(d), it will determine how much if anything will be recoverable by Landsbanki in satisfaction of its claim from the administration of Heritable.
+Scots law has long recognised that it would be inequitable for a debtor of a bankrupt to be required to pay his debt in full, while he could only get a dividend for the debt due to him by the bankrupt: Bell, Commentaries 7th ed, (1990) pp 118 et seq; Goudy, Bankruptcy 4th ed, (1914) p 550.
+Bell expresses the principle in this way at p 118: It is not only expedient, but required by the plainest principles of equity, that where one of the parties becomes unable to pay his debt to the other, he should not be entitled to require payment from that other of an equal debt that is due to him.
+Thus, the settlement of mutual debts may be referred to two distinct principles: the one is virtual payment and extinction; the other, retention till counter performance.
+At p 119, having noted that the latter operates only in bankruptcy, he observes: The former is known by the name of Compensation (in England Set off), and is amply discussed by our authors; the latter, sometimes vaguely, called Retention, but which may be distinguished as the Balancing of Accounts in Bankruptcy.
+The latter he describes as the more important branch of the doctrine.
+It is not merely an arrangement of convenience, but is an equitable adjustment of mutual debts and credits, to avoid manifest injustice.
+As Lord Hodge pointed out in Integrated Building Services Engineering Consultants Ltd v PIHL UK Ltd [2010] CSOH 80, [2010] BLR 622, para 23, there is no consensus as to whether this principle is a species of retention, as Lord McLaren in Ross v Ross (1895) 22 R 461, 465 suggests, or an extension of compensation by which one claim may be set off against another, resulting in the extinction of the former claim.
+In many contexts, such as the present, this question is of no practical importance.
+What the administrators are seeking to do in this case is to strike a balance between the competing claims for the purpose of working out how much, if anything, is due to Landsbanki by way of a dividend in the administration of Heritable.
+This procedure is, in essence, no different from that which is referred to in articles 10(2)(c) and 23 of the Directive and regulations 22(3)(d) and 28 as set off.
+Landsbanki submits that the issue is to be determined by construing regulation 5(1) in accordance with the Directive.
+So construed, the effects of Icelandic insolvency law on the claims that Heritable lodged in Landsbankis winding up must be held to apply automatically in the United Kingdom.
+If and to the extent that they have been rejected or extinguished under Icelandic insolvency law, that rejection or extinction applies automatically to EEA insolvency proceedings in the United Kingdom.
+The rejection or extinction of claims in the main proceedings takes effect throughout the EEA in accordance with the laws of the State in which these proceedings are opened.
+It follows that these claims have no part to play in the administration of Heritable.
+They may not be raised by way of a defence to Landsbankis claims against Heritable.
+Heritable submits that the effect of the Directive is that each Member State has exclusive jurisdiction to open proceedings with respect to credit institutions with head offices within its territory and to make legal rulings applying its own law.
+In a case such as this, where a parent credit institution has its head office in one Member State and its wholly owned subsidiary has its head office in another, each Member State must recognise the other Member States proceedings.
+The Regulations, transposing the Directive into United Kingdom law, allocate the proceedings relating to Heritable to the Scottish courts.
+Scots law is the law governing all issues arising in and with respect to its administration.
+They include the determination and quantification of Landsbankis proof in the administration, questions as to whether Heritable is able to rely on its cross claims against Landsbanki to reduce its liabilities to Landsbanki and questions as to the amount for which Landsbanki is to be admitted in the administration as a creditor.
+The question, in short, is whether Icelandic law binds the administrators of Heritable.
+Does it govern the question whether the claim that Heritable wishes to maintain in its administration against Landsbanki by way of set off against Landsbankis claim against it still subsists for this purpose? Must it be taken to have been extinguished for this purpose because it can no longer be maintained against Landsbanki in the winding up proceedings in Iceland? The parties are agreed that there is no previous case law which addresses this issue.
+Some preliminary observations
+The position at common law was explained in the Inner House by Lord President Hamilton: 2012 SC 209, para 29.
+A debt under a contract whose proper law is the law of another jurisdiction may, for the purposes of Scots law, be discharged by insolvency proceedings in that other jurisdiction: Rochead v Scot (1724) M 4566.
+But such proceedings will not, for the purposes of Scots law, discharge a debt where the proper law of the contract is not the law of the jurisdiction in which the proceedings are taking place: Adams v National Bank of Greece SA [1961] AC 255, where the proper law of the contract was that of England: St Clair and Drummond Young, The Law of Corporate Insolvency in Scotland 4th ed, (2011) para 22.31.
+The position under the common law of England is the same: Antony Gibbs & Sons v La Socit Industrielle et Commerciale des Mtaux (1890) LR 15 QBD 339.
+The question whether an obligation has been extinguished is governed by its proper law: Wight v Eckhardt Marine GmbH [2003] UKPC 37, [2004] 1 AC 147, para 11, per Lord Hoffmann; Dicey, Morris & Collins, The Conflict of Laws 14th ed, (2006) vol 2, para 31R 092, Rule 200.
+The proper law of the revolving credit facility is English law.
+So, if the matter were to be regulated by the common law, the position would be that what happened to Heritables rcf claim in Iceland would have no bearing on the question whether it could be used by way of set off against Landsbankis rcf claim in the administration of Heritable in Scotland.
+The effect of the Directive, however, is that the common law must give way to the law under which proceedings resulting from the insolvency of credit institutions must be conducted by the Member States to the extent, if any, that it directs.
+The question is whether it, and the Regulations which give it effect, contains such a direction.
+The answer is to be found by construing the Directive and the Regulations which implement it, and applying that construction to the facts.
+The principle of mutual recognition on which the scheme of the Directive proceeds is indicated by recitals (6) and (16).
+The administrative or judicial authorities of the home Member State must have sole power to decide upon and to implement the reorganisation measures provided for by the law and practices in force in that Member State.
+Equal treatment of creditors requires that the credit institution is wound up according to the principles of unity and universality.
+Those principles require the administrative or judicial authorities of the home Member State to have sole jurisdiction for the conduct of such proceedings.
+They also require that the decisions of those authorities will be recognised and be capable of producing in all the other Member States, without any further formality, the effects ascribed to them by the law of the home Member State.
+There is no indication here that any one home Member State is to have priority over the others.
+On the contrary, the insolvency proceedings in each Member State are to be conducted solely in accordance with the laws and procedures of that Member State.
+These recitals indicate that the separate regime of the Directive for credit institutions is modelled on the principle which is set out in article 16(1) of the 2000 Insolvency Regulation.
+The basic rule of jurisdiction which article 3(1) of the 2000 Insolvency Regulation lays down is that the courts of the Member State within the territory of which the centre of a debtors main interests is situated has jurisdiction to open insolvency proceedings.
+There is to be a single forum for this purpose, except where the debtor possesses an establishment within the territory of another Member State, in which case article 3(2) provides that the other Member State has jurisdiction restricted to the assets of the debtor situated in that other Member State.
+Article 16(1) of the 2000 Insolvency Regulation states: Any judgment opening insolvency proceedings handed down by a court of a Member State which has jurisdiction pursuant to Article 3 shall be recognised in all the other Member States from the time that it becomes effective in the State of the opening of the proceedings.
+The effects of that recognition are set out in article 17(1).
+It states that the judgment opening the proceedings referred to in article 3(1) shall, with no further formalities, produce the same effects in any other Member State as under the law of the State of the opening of proceedings.
+Articles 3, 9 and 10 of the Directive (see paras 26 28, above) carry the principles referred to in the recitals forward into the provisions of the Directive, except that the home Member State alone is empowered to take measures with regard to branches of a credit institution established in other Member States: article 3(1).
+It follows that the fact that Heritables claims against Landsbanki have been extinguished for all the purposes of the winding up of Landsbanki in Iceland cannot be questioned in the administration of Heritable in Scotland.
+Iceland, as Landsbankis home EEA State, has sole jurisdiction for this purpose, and the effects of the insolvency proceedings in Iceland must be recognised in Scotland.
+But does it follow that the administrators of Heritable must treat Heritables rcf claim as having been extinguished here too because of the effects on that claim of what has happened in Iceland? The answer indicated by article 10(2) suggests the contrary.
+It states that the law of the home Member State shall determine, among other things, the conditions under which set offs may be invoked, the rules governing the admission of claims and the distribution of the proceeds of the realisation of assets, the ranking of claims and the rights of creditors who have obtained partial satisfaction after the opening of insolvency proceedings.
+Landsbankis argument, however, is that the meaning and effect of regulation 5(1) is that the extinction of Heritables claim that results from the fact that the claim is no longer being pursued in Iceland has effect in the United Kingdom as if the EEA insolvency measure in Iceland in respect of Landsbanki was part of the law of insolvency of the United Kingdom too.
+It starts from the position that there is nothing in the Directive to prevent the relevant body of the home Member State of an insolvent credit institution from adjudicating upon the validity of claims lodged by creditors who are also the debtors of the credit institution or to prevent the law of that Member State from extinguishing claims by creditors who have themselves become insolvent.
+It takes this to mean that it is the insolvency law of that credit institutions home Member State that has effect also in the place where the insolvency proceedings in respect of its creditor were opened.
+This, it says, is made clear so far as the law of the United Kingdom is concerned by regulation 5(1).
+That regulation states that an EEA insolvency measure has effect in the United Kingdom in relation to any debt or liability of an EEA credit institution as if it were part of the general law of insolvency of the United Kingdom.
+Mr Alexander QC for Landsbanki submitted that the insolvency measure for the purposes of that regulation, as defined by regulation 5(6), is the winding up of Landsbanki in Iceland.
+The words as if it were part of the general law of insolvency of the United Kingdom meant that the effects of that insolvency measure were automatically incorporated into that law and must be given effect here.
+Everything turned on the meaning of that phrase.
+It gave effect to the collective nature of insolvency proceedings and the principle of equality among creditors.
+There was a level playing field, with one set of rules for all.
+Each creditor must lodge his claim in the credit institutions home Member State.
+That was what Heritable did when the proceedings were opened in Iceland.
+But there were no longer any rival cross claims, as Heritable had withdrawn its claim in the winding up of Landsbanki.
+It is a striking feature of this argument, well presented though it was, that it is based entirely on regulation 5(1).
+Mr Moss QC for Heritable had no quarrel with the proposition that, according to the principles of unity and universality, the Directive required that insolvency proceedings in respect of a credit institution should proceed on a strict entity basis in the home Member State of that institution, irrespective of where it had its branches.
+He was willing to assume too that Iceland had implemented the Directive correctly into its own law.
+He submitted that, if Heritable and Landsbanki had both been Scottish companies and were both being wound up in Scotland, it would not have been open to doubt that Heritable could assert a set off against Landsbanki in its own winding up even though it had not claimed in Landsbankis winding up.
+This was simply a matter of common sense.
+The liability of the debtor company was still an asset for the purposes of the creditors winding up.
+The question was whether that position was fundamentally altered by regulation 5(1) in the case of a winding up in another EEA State.
+He submitted that, when that regulation was examined in its context and regard was had to the consequences of Landsbankis argument, it was not.
+Discussion
+There is much more to the Regulations than regulation 5(1).
+The first point to notice is that Part 2, as its heading indicates, is concerned with jurisdiction in relation to EEA credit institutions.
+One can, of course, take from the provisions of this Part that the Regulations are designed to adopt the strict entity approach, based upon the principle which is to be found in article 9 of the Directive, that it is the administrative or judicial authorities of the credit institutions home Member State that shall alone be responsible for the opening of proceedings for its winding up.
+Seen in that context, there is nothing remarkable about what regulation 5 sets out.
+Even if that credit institution has branches in the United Kingdom, the entire process of winding up must be conducted in the home Member State.
+So an EEA insolvency measure in another EEA State must, as regulation 5(1)(a) says, have effect in the United Kingdom in relation to any of its branches here as if it were part of the general law of insolvency of the United Kingdom.
+Regulations 5(1)(b) as to the credit institutions property or other assets, and 5(1)(c) as to its debt and liabilities, are mirror images of each other.
+They are to be dealt with in the proceedings in the other EEA State.
+Property or assets located in Scotland are not to be disposed of in accordance with the rules of diligence that are available under Scots law, and steps by a creditor to enforce a claim against the credit institution are to be pursued solely in the proceedings in the other EEA State.
+Regulation 5(2) provides that, for the purposes of those proceedings, decisions taken by a person entitled to exercise any function which he is entitled to exercise in those proceedings are to be given effect in this country.
+In this way the integrity of the exclusive jurisdiction that is given to the home EEA State is preserved.
+But these provisions are concerned only with an EEA insolvency measure in relation to a credit institution which is located in another EEA State.
+It is only for that purpose that an EEA measure is to have effect as if it were part of the general law of insolvency in the United Kingdom.
+They apply to the winding up of Landsbanki in Iceland.
+But they do not apply to the administration of Heritable in Scotland.
+The rules which apply to Heritable, which is a UK credit institution, are set out in Parts 3 and 4 of the Regulations.
+Mr Alexander submitted that the effect of the phrase as if it were part of the general law of insolvency of the United Kingdom was that the winding up proceedings in Iceland had to be regarded as having been incorporated into the general law of insolvency of the United Kingdom, and that the reference to the general law of insolvency in regulation 7 had to be read in the same way.
+But in my opinion this reads too much into this phrase.
+It has the effect for which he contended in relation to the winding up of Landsbanki.
+But it does not extend to the proceedings relating to Heritable.
+The phrase as used in regulation 7 is a reference to the laws, regulations and procedures applicable in the UK credit institutions home Member State, as article 10(1) of the Directive indicates.
+The rules which are most directly in point for the purposes of this appeal are set out in regulations 7 and 22.
+Regulation 7, which is in Part 3, gives effect to article 10(1) of the Directive.
+It provides that the general law of insolvency has effect in relation to UK credit institutions subject to the provisions of that Part.
+The general law of insolvency must be taken for this purpose to be the general law of insolvency of the part of the United Kingdom in which the credit institution is located: see the definition in regulation 2(3).
+The modifications that Part 3 makes to the general law of insolvency are summarised in para 34, above.
+Regulation 22, which is in Part 4, deals with the applicable law in relation to EEA rights in the winding up of a UK credit institution.
+Regulation 22(1) states that its provisions are subject to the provisions of regulations 23 to 35.
+Regulation 22(2), which gives effect to article 10(2) of the Directive, states that the matters mentioned in regulation 22(3) are to be determined in accordance with the general law of insolvency of the United Kingdom.
+They include the conditions under which set off may be invoked and the rules governing, among other things, the admission and ranking of claims: regulations 22(3)(d) and (i).
+Regulation 28 preserves the right of creditors to demand the set off of their claims against the claims of the affected credit institution, where set off is permitted by the law applicable to the credit institutions claim.
+This is the other side of the application of the principle of set off that is referred to in regulation 22(3)(d).
+It reinforces the point that issues of set off are to be determined in the home EEA State, as the common law of Scotland requires, according to the proper law of the contract.
+It is conceived in the interests of creditors in other EEA States, bearing in mind that exclusive jurisdiction is given to the United Kingdom as the home Member State.
+Their right to claim set off is put onto the same basis as creditors in the United Kingdom.
+This gives effect to article 23(1) of the Directive, and it respects the principle of unity and universality on which the Directives provisions are based.
+The key to a proper understanding of regulation 5(1), therefore, lies in an appreciation of the fact that, while it is designed to give effect to the mandatory choice of the law of insolvency of the EEA State in which the foreign credit institution is located, it is not concerned in the least with the effects of the mandatory choice of Scots law for the administration of Heritable in Scotland.
+Those effects are provided for in Part 3 and 4 of the Regulations, which have nothing to do with the effects of the mandatory choice of the law of Iceland for the winding up of Landsbanki.
+I would therefore reject the argument for Landsbanki, on the ground that it fails to take account of the scheme of the Directive and the Regulations.
+But I think that there is also much force in Mr Mosss argument, which built on points made by the Lord President in his opinion at 2012 SC 209, paras 32 and 40, that Landsbankis argument produces an arbitrary and unprincipled outcome.
+As the Lord President observed in para 32, the logic of Landsbankis argument is that Heritables claims against Landsbanki would have been extinguished even if Heritable had been a wholly solvent company.
+It might have decided that there was no point in pursuing a claim in Landsbankis winding up because the prospects of a dividend were remote and the costs of doing that outweighed any possible advantage.
+However sound that assessment might have been, its effect would have been that Heritable would have been unable to set off its claim by way of a defence to a claim pursued against it in Scotland by Landsbanki.
+The only way for a creditor to avoid that result would be to lodge and maintain its claim in the insolvency proceedings in the other Member State, even if the prospects of recovering anything were nil.
+This would also be, as the Lord President said in para 40, to give universal priority to the process in which a decision happened to be made first.
+That would encourage forum shopping, especially where there was a prospect of inconsistent findings as to the validity of a claim in different Member States.
+It is hard to believe that this was intended by the framers of the Directive.
+These arguments do not, of course, provide an answer in themselves to Landsbankis case.
+But they do suggest that it is crucial to pay close attention to the scheme of the Directive to which the Regulations give effect.
+When this is done the answer is, in my opinion, entirely clear.
+Conclusion
+For these reasons I would dismiss the appeal and affirm the First Divisions interlocutor.
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+The question in this appeal is what is the true construction of the expression property which is for the time being in use or intended for use for commercial purposes in section 13(4) of the State Immunity Act 1978 (the Act).
+The facts
+On 9 September 1988 the appellant (SerVaas), which is a company incorporated in Indiana, entered into an agreement (the Agreement) with the Iraqi Ministry of Industry (the Ministry) for the supply of equipment, machinery and related services required for the commissioning of a state owned copper and brass processing factory in Iraq.
+On 2 August 1990 Iraq invaded Kuwait and on 4 August 1990 the assets of Rafidain Bank (Rafidain) in the United Kingdom were frozen in accordance with the United Nations (UN) sanctions regime established under UN Security Council Resolution 661.
+On 13 August 1990 SerVaas terminated the Agreement and on 25 January 1991 it commenced proceedings in the Paris Commercial Court against the Ministry in order to recover money due to it under the Agreement.
+On 21 February 1991 provisional liquidators (the Provisional Liquidators) were appointed in respect of Rafidain on a winding up petition presented by the Bank of England.
+On 16 April 1991 the Paris Commercial Court gave judgment in default in favour of SerVaas in the sum of US$14,152,800 (the Judgment) in respect of money due under the Agreement.
+On 10 July 1991 the Judgment was recognised in the Netherlands and shortly thereafter SerVaas recovered US$966,515 by partial enforcement of the Judgment in the Netherlands against Iraqs assets.
+On 1 October 1991 the judgment was recognised in Germany and on 2 April 1992 Mummery J ordered that the provisional liquidation be limited to those assets of Rafidain situated in England and Wales.
+On 4 June 1996 the Bank of Englands petition was adjourned generally.
+In July 2002 SerVaas received US$6,736,285 from the UN Claims Commission by way of compensation for losses caused by Iraq as a result of the invasion of Kuwait.
+In May 2003 the regime of Saddam Hussein in Iraq fell.
+On 22 May 2003 the Security Council passed Resolution 1483 which established the Development Fund for Iraq (DFI).
+On 28 July 2003 Lewison J made an order permitting the Provisional Liquidators to collect the assets of Rafidains London Branch and to agree claims against Rafidain.
+On 21 November 2004 Iraq made a debt cancellation agreement with government creditors comprising the Paris Club.
+In December 2004 Iraq began a process of debt restructuring with its commercial creditors and the creditors of other specified Iraqi entities, including Rafidain, under the auspices of the Iraq Debt Reconciliation Office (the IDRO Scheme).
+On 26 July 2005 Iraq announced an offer to repurchase claims from the commercial creditors of specified Iraqi debtors, including Rafidain, where claims arose before 6 August 1990.
+In May 2006 Iraq issued an invitation to tender claims for cash purchase and for exchange.
+Thereafter Iraq took assignments of certain debts owed to Rafidains creditors by Rafidain in accordance with the IDRO Scheme.
+As was its right, SerVaas did not register an interest in and has chosen not to participate in the IDRO Scheme.
+On 3 April 2008 Henderson J sanctioned a scheme of arrangement for the distribution of assets held by the Provisional Liquidators to Rafidains creditors (the Scheme).
+By 18 August 2009 Iraq had submitted claims in the Scheme which were admitted in the sum of US$253.8 million (the Admitted Claims).
+The original commercial debts constituting the Admitted Claims were acquired by Iraq by way of assignment from existing creditors of Rafidain.
+On 4 November 2009 SerVaas obtained an order registering the Judgment in England and Wales against the Ministry and Iraq under the Civil Jurisdiction and Judgments Act 1982 (the Registration Order).
+It was served on Iraq on 2 May 2010 and became enforceable against the Ministry and Iraq in England and Wales on 2 September 2010.
+On 11 October 2010 Iraqs US lawyers responded to a request from the Scheme Administrators by stating that the dividend payment on the Admitted Claims should be paid to the account in the name of the DFI with the Federal Reserve Bank in New York.
+As at 18 November 2010, the debt due in respect of the Judgment is said to have amounted to US$34,481,200.49, inclusive of interest and allowable costs.
+The proceedings
+In the meantime on 7 October 2010 Mann J granted an application by SerVaas lifting the stay on proceedings against Rafidain and enjoining Rafidain, the Provisional Liquidators and the Scheme Administrators from making any payment to Iraq under the Scheme in respect of the Admitted Claims or recognising or giving effect to any assignment or transfer of the Admitted Claims to a third party which would have the effect of reducing the amount payable to Iraq to an amount less than the Judgment debt.
+On 13 October 2010 SerVaas issued an application for a Third Party Debt Order (the TPDO Application) against Rafidain in relation to the debt payable to Iraq by Rafidain by way of dividend under the Scheme, seeking an order that Rafidain pay to SerVaas such part of the monies otherwise payable to Iraq as was necessary to satisfy the judgment.
+That injunction has been variously continued until now.
+In the meantime on 11 November 2010 Iraq issued an application to discharge the injunction on the ground that monies due to Iraq by Rafidain were immune from execution by virtue of section 13(2)(b) of the Act and/or article 9(1) of the Iraq (United Nations Sanctions) Order 2003 (SI 2003/1519) (the 2003 Order).
+On 30 November 2010 the Charg dAffaires and Head of Mission of the Embassy of Iraq in London signed a certificate (the Certificate) in these terms: 1.
+The Admitted Scheme Claims of Iraq under the Scheme [of arrangement in respect of Rafidain] have never been used, are not in use, and are not intended for use, by or on behalf of the State of Iraq for any commercial purpose. 2.
+Any assets or distributions received in respect of any Admitted Scheme Claim of Iraq under the Scheme are not intended for use by or on behalf of the State of Iraq for any commercial purpose. 3.
+The State of Iraq has directed the Scheme Administrators, and intends to continue to so direct the Scheme Administrators, to transfer any assets or distributions in respect of any Admitted Scheme Claim of Iraq under the Scheme to the Development Fund for Iraq.
+Following a hearing on 3 December 2010, Arnold J dismissed the TPDO Application on 14 December 2010 holding that the Admitted Claims were immune from execution by reason of section 13(2)(b) and (4) of the Act because they were not property which was for the time being in use or intended for use for commercial purposes within the meaning of section 13(4).
+Iraq's submission that the provisions of the 2003 Order were engaged was dismissed.
+Arnold J granted both sides permission to appeal.
+On 18 May 2011 the Court of Appeal heard SerVaas appeal on the section 13(2)(b) point, reserved judgment against Arnold J's decision and adjourned generally Iraq's appeal on the 2003 Order point with liberty to restore.
+On 3 November 2011, by a majority (Stanley Burnton and Hooper LJJ, Rix LJ dissenting), the Court of Appeal dismissed SerVaas' appeal and refused permission to appeal to this Court, which subsequently granted permission.
+The only party other than SerVaas to have taken an active part in the proceedings to date has been Iraq.
+The issues
+The issues in this appeal are not concerned with a states immunity from suit, which is governed by section 3 of the Act, but (as stated in the Statement of Facts and Issues) are solely concerned with the scope of its immunity from execution of a judgment given against it, which is governed by section 13(2)(b) and 13(4).
+Section 13(2)(b) provides, so far as relevant: (2) Subject to subsection (4) below (b) the property of a State shall not be subject to any process for the enforcement of a judgment or arbitration award or, in an action in rem, for its arrest detention or sale.
+Section 13(4) provides, so far as relevant: (4) Subsection (2)(b) above does not prevent the issue of any process in respect of property which is for the time being in use or intended for use for commercial purposes; Section 17, which, like section 13, is in Part I of the Act, provides so far as relevant that in Part I of the Act: commercial purposes means purposes of such transactions or activities as are mentioned in section 3(3) above; Section 3(3) defines commercial transaction as meaning: (a) any contract for the supply of goods or services; (b) any loan or other transaction for the provision of finance and any guarantee or indemnity in respect of any such transaction or of any other financial obligation; and (c) any other transaction or activity (whether of a commercial, industrial, financial, professional or other similar character) into which a State enters or in which it engages otherwise than in the exercise of sovereign authority.
+Section 13(5) provides: (5) The head of a State's diplomatic mission in the United Kingdom, or the person for the time being performing his functions, shall be deemed to have authority to give on behalf of the State any such consent as is mentioned in subsection (3) above and, for the purposes of subsection (4) above, his certificate to the effect that any property is not in use or intended for use by or on behalf of the State for commercial purposes shall be accepted as sufficient evidence of that fact unless the contrary is proved.
+It is common ground: (a) that the monies payable under the Scheme to Iraq are a debt and a chose in action and as such that they are property within the meaning of section 13(2)(b) of the Act; (b) that Iraq's stated intention is to transfer the proceeds of the Admitted Claims to the DFI; (c) that, by virtue of section 13(5), the Certificate creates a rebuttable presumption that the Admitted Claims are not in use or intended for use for commercial purposes; (d) that the onus lies on SerVaas to show a real prospect that it can rebut that presumption; and (e) that the debts were intended for use for sovereign and not commercial purposes.
+These proceedings are summary proceedings, so that, as identified in the Statement of Facts and Issues, the particular issue to be resolved in the appeal is whether there is any real prospect of SerVaas rebutting the presumption created by the Certificate that Iraq's right to receive payment of dividends from the Scheme in respect of the Admitted Claims as at 13 October 2010 was property which was not for the time being in use for commercial purposes within the meaning of section 13(4) of the Act.
+The questions for decision are thus whether (a) the Admitted Claims were in use for the purpose of a transaction or activity in which Iraq engaged otherwise than in the exercise of its sovereign authority for the purpose of section 3(3)(c) of the Act; or (b) the Admitted Claims were (to the extent that they were acquired by Iraq in exchange for bonds) in use for the purpose of a loan or other transaction for the provision of finance or of any other financial obligation for the purpose of section 3(3)(b) of the Act.
+Discussion
+It is not in dispute that the judgment which SerVaas seeks to enforce arises from the Agreement, that it is a commercial contract and that Iraq is liable for the debts of the Ministry.
+Nor is it in dispute that, although incorporated in Iraq and state controlled, Rafidain conducted business as a commercial bank.
+It was not and is not Iraqs central bank.
+Moreover the Admitted Claims are all claims arising from commercial transactions between Rafidain and the third parties involved and are not claims arising from commercial transactions between Rafidain and Iraq.
+They are simply debts previously owed by Rafidain to their commercial creditors which have now been transferred to Iraq.
+Rafidain, although placed in liquidation in England in 1991, is not in liquidation elsewhere and continues to trade outside the jurisdiction of the English court.
+The Scheme is a mechanism for distributing the assets of Rafidains London branch to its creditors.
+The Admitted Claims in respect of which dividends are, subject to the TPDO application, payable to Iraq total US$253.8 million.
+But for the intervention by SerVaas, the US$253.8 million would have been transferred to the account of DFI in New York within a matter of days of that intervention in accordance with the instruction of 11 October 2010 referred to above.
+The dividend rate under the Scheme is 56 per cent, giving rise to a total dividend payable to Iraq of US$142.1 million.
+In essence the case for SerVaas is that the nature of the transaction which gave rise to Rafidains liability was entirely commercial.
+The Admitted Claims and the right to a dividend contribution are properly described as in use, in order either to obtain payment or to complete the underlying commercial transactions giving rise to the claim or alternatively as part of the transaction pursuant to which Iraq acquired the Admitted Claims, the nature of which was not a sovereign act.
+There is an issue between the parties as to whether, as SerVaas say, Iraq bought the debts in order to make a profit and as part of a commercial venture or whether, as Iraq says, they were bought in the exercise of sovereign authority as part of a huge restructuring of debts incurred in the Saddam Hussein era.
+Arnold J did not resolve that issue.
+His conclusions were concisely summarised thus in para 29: In my judgment SerVaas has no real prospect of successfully rebutting the presumption created by the Certificate for the reasons given by counsel for Iraq.
+In my view SerVaass argument wrongly conflates the transactions by which Iraq acquired the debts that are the subject of the Admitted Claims with the intended use of those assets.
+Iraq is not presently using those assets, but intends to pay the dividends on them to the DFI.
+That property is not being used to provide finance to Iraq, and it is immaterial that that property was acquired by means of bonds in the cases where the consideration took the form of bonds.
+Nor is the property being used or intended to be used for transactions otherwise than in the exercise of sovereign authority.
+Iraq has decided to transfer the distributions to the DFI in the exercise of its sovereign authority, albeit constrained in this respect by Resolution 1483, for the purposes set out in the resolution.
+I therefore conclude that Iraqs Admitted Claims are entitled to immunity from execution by virtue of section 13(2)(b) of the 1978 Act.
+The majority of the Court of Appeal held that Arnold J was correct to hold that the origin of the debts was irrelevant.
+As Stanley Burnton LJ put it at para 32, the fact that the property, here a debt, arises from a commercial transaction does not inform the question whether that property was, at the relevant time, used for a commercial purpose.
+As I read his judgment, Stanley Burnton LJ did not express a view on the question whether the origin of the debts was commercial but held that, at the relevant time, the debts were not being used at all and that it followed that SerVaas could not discharge the burden of showing that they were in use for commercial purposes.
+At para 39 he expressly approved the conclusions reached by Arnold J in para 29 of his judgment quoted above.
+Hooper LJ agreed with Stanley Burnton LJ but went further.
+He said at para 60 that in his view the evidence pointed overwhelmingly against the conclusion that Iraq bought the debts in order to make a profit.
+The debts, he said, were bought by Iraq, in the exercise of its sovereign authority, as part of a huge restructuring of debts incurred in the Saddam Hussein era.
+As appears below, it is not necessary to resolve this question in order to determine this appeal.
+Rix LJ dissented on the ground that the property in question, namely the Admitted Claims giving rise to a dividend (not the dividend itself), was (as he put it at para 83) very arguably for the time being in use for commercial purposes, so that the issue should be sent for trial.
+As I see it, the central question in this appeal is whether the nature of the origin of the debts is relevant to the question whether the property in question was in use for commercial purposes.
+In my opinion it is not.
+This conclusion is based upon the language of section 13(4).
+It is also informed by the decision of the House of Lords in Alcom Ltd v Republic of Columbia [1984] AC 580 (Alcom).
+In addition we were referred to three decisions at first instance and, in particular, to a number of decisions of various courts of appeals in the United States and to a decision of the Court of Appeal in Hong Kong.
+As to the language of section 13(4), I would accept Mr Howard QCs submission on behalf of Iraq that the expression in use for commercial purposes should be given its ordinary and natural meaning having regard to its context.
+I would further accept his submission that it would not be an ordinary use of language to say that a debt arising from a transaction is in use for that transaction.
+Parliament did not intend a retrospective analysis of all the circumstances which gave rise to property, but an assessment of the use to which the state had chosen to put the property.
+The language of section 13(4) is to be contrasted with other parts of the Act.
+It is, for example, to be contrasted with section 3(1), which refers to proceedings relating to a commercial transaction, and section 10, which refers to claims in connection with a ship.
+In enacting section 13(4), Parliament could have referred to property that related to a commercial transaction, or arose in connection with a commercial transaction as being susceptible to enforcement.
+It chose not to do so, which suggests that it intended a difference in meaning.
+Property will only be subject to enforcement where it can be established that it is currently in use or intended for use for a commercial transaction.
+It is not sufficient that the property relates to or is connected with a commercial transaction.
+I would accept Mr Howards submission that this is consistent with the different treatment of the two categories of immunity in the Act.
+I turn to the authorities.
+In Alcom the House of Lords held that money in a bank account used to meet the expenditure incurred in the day to day running of Colombias diplomatic mission was not within the exception.
+Lord Diplock (with whom the other members of the House agreed) said this at pages 602F 603D and 603H 604E: The crucial question of construction for your Lordships is whether a debt which has these legal characteristics falls within the description contained in section 13(4) of property which is for the time being in use or intended for use for commercial purposes.
+To speak of a debt as being used or intended for use for any purposes by the creditor to whom the debt is owed involves employing ordinary English words in what is not their natural sense, even if the phrase commercial purposes is given the ordinary meaning of jure gestionis in contrast to jure imperii that is generally attributed to it in the context of rights to sovereign immunity in public international law; though it might be permissible to apply the phrase intelligibly to the credit balance in a bank account that was earmarked by the state for exclusive use for transactions into which it entered jure gestionis.
+What is clear beyond all question is that if the expression commercial purposes in section 13(4) bore what would be its ordinary and natural meaning in the context in which it there appears, a debt representing the balance standing to the credit of a diplomatic mission in a current bank account used for meeting the day to day expenses of running the mission would fall outside the subsection.
+Commercial purposes, however, is given by section 17(1) the extended meaning which takes one back to the comprehensive definition of commercial transaction in section 3(3).
+Paragraph (a) of this tripartite definition refers to any contract for the supply of goods or services, without making any exception for contracts in either of these two classes that are entered into for purposes of enabling a foreign state to do things in the exercise of its sovereign authority either in the United Kingdom or elsewhere.
+This is to be contrasted with the other paragraph of the definition that is relevant to the instant case, paragraph (c), which on the face of it would be comprehensive enough to include all transactions into which a state might enter, were it not that it does specifically preserve immunity from adjudicative jurisdiction for transactions or activities into which a state enters or in which it engages in the exercise of sovereign authority, other than those transactions that are specifically referred to either in paragraph (a) or in paragraph (b), with the latter of which the instant appeal is not concerned.
+My Lords, the decisive question for your Lordships is whether in the context of the other provisions of the Act to which I have referred, and against the background of its subject matter, public international law, the words property which is for the time being in use or intended for use for commercial purposes, appearing as an exception to a general immunity to the enforcement jurisdiction of United Kingdom courts accorded by section 13(2) to the property of a foreign state, are apt to describe the debt represented by the balance standing to the credit of a current account kept with a commercial banker for the purpose of meeting the expenditure incurred in the day to day running of the diplomatic mission of a foreign state.
+Such expenditure will, no doubt, include some moneys due under contracts for the supply of goods or services to the mission, to meet which the mission will draw upon its current bank account; but the account will also be drawn upon to meet many other items of expenditure which fall outside even the extended definition of commercial purposes for which section 17(1) and section 3(3) provide.
+The debt owed by the bank to the foreign sovereign state and represented by the credit balance in the current account kept by the diplomatic mission of that state as a possible subject matter of the enforcement jurisdiction of the court is, however, one and indivisible; it is not susceptible of anticipatory dissection into the various uses to which moneys drawn upon it might have been put in the future if it had not been subjected to attachment by garnishee proceedings.
+Unless it can be shown by the judgment creditor who is seeking to attach the credit balance by garnishee proceedings that the bank account was earmarked by the foreign state solely (save for de minimis exceptions) for being drawn upon to settle liabilities incurred in commercial transactions, as for example by issuing documentary credits in payment of the price of goods sold to the state, it cannot, in my view, be sensibly brought within the crucial words of the exception for which section 13(4) provides.
+It seemed to me that the whole of that passage merited quoting.
+However, the critical point for present purposes is the proposition that the judgment creditor must show that the bank account was earmarked by the state solely for being drawn down upon to settle liabilities incurred in commercial transactions.
+The essential distinction is between the origin of the funds on the one hand and the use of them on the other.
+As Stanley Burnton LJ said in the instant case at para 34, it was not suggested by Lord Diplock in Alcom that if the moneys in the bank account resulted from commercial transactions, that might be relevant to the question whether the account was used or intended for use for commercial purposes.
+We were referred to three English decisions at first instance.
+They were AIC Ltd v Federal Government of Nigeria [2003] EWHC 1357 (QB) (Stanley Burnton J), AIG Capital Partners Inc v Republic of Kazakhstan [2005] EWHC 2239 (Comm), [2006] 1 WLR 1420 (Aikens J) and Orascom Telecom Holding SAE v Republic of Chad [2008] EWHC 1841 (Comm) (Burton J).
+They all focus on present or future use.
+For example, at para 92(2) of the AIG case Aikens J focused on whether the debts were put to use for the purposes of a commercial transaction within the meaning of section 3(3) of the Act.
+I note in passing that in the AIC case Stanley Burnton J noted at para 56, after referring to Alcom, that evidence of recent use of an account wholly for commercial purposes over a significant period of time may lead to the conclusion that the account is used or intended for use wholly for commercial purposes; but the older the use in evidence, the weaker the inference that may be drawn as to the use or intended use of the account.
+The focus is throughout on actual use.
+In para 58 he noted that there was evidence that the relevant bank account had been dormant and said that, if an account was dormant for at least 18 months, it cannot be said to be presently used for any relevant purpose, and that the previous use was weak evidence of a present intention as to its use.
+It was an example of a case, as he concluded here, where the evidence was insufficient to disprove the statement in the Certificate.
+It was suggested on behalf of SerVaas that there is a relevant distinction for present purposes between the current use of a debt and the current use of a bank account.
+For my part, I would not accept that there is such a distinction.
+In each case the question is the same, namely whether the relevant property is in use or is intended for use for commercial purposes.
+The American cases draw the same distinction between the source of the property and its use.
+The immunity of states from execution in the United States is governed by the Foreign Sovereign Immunities Act 1976 28 USC 1602 1611 (the FSIA), which was a leading precursor of the Act. 1610(a) of the FSIA provides that, where other specific conditions are satisfied, courts in the United States may execute against property in the United States used for a commercial activity in the United States.
+There are a number of decisions of courts of appeals in different US states on the true construction of that provision.
+The leading case is perhaps Connecticut Bank of Commerce v Republic of Congo, 309 F 3d 240 (US Court of Appeals, 5th Cir, Texas, 2002).
+Connecticut Bank had acquired the rights to a valid London judgment against the Congo for defaulting on a loan agreement.
+It obtained a default judgment in New York in relation to the London judgment debt.
+The Bank then sought to attach various debts owed by a group of Texas oil companies to the Congo.
+The debts constituted, inter alia, royalty obligations by the oil companies for activities connected with the exploration for and the sale of the Congos oil.
+The court held that the debts owed by the oil companies were not propertyused for a commercial activity within the meaning of 1610(a).
+The majority opinion in the 5th Circuit Court of Appeals was given by Judge Garza.
+He said (at p 251, paras 19 22): What matters under the statute is what the property is used for, not how it was generated or produced.
+If property in the United States is used for a commercial purpose here, that property is subject to attachment and execution even if it was purchased with tax revenues or some other noncommercial source of government income.
+Conversely, even if a foreign states property has been generated by commercial activity in the United States, that property is not thereby subject to execution or attachment if it is not used for a commercial activity within our borders.
+The district court (and the litigants) have focused on the question of whether the Congos joint venture with the garnishees, which gave rise to the royalty and tax obligations that the Bank want to garnish, was a commercial activity in the United States.
+This was the wrong question to consider.
+What matters under the statute is not how the Congo made its money, but how it spends it.
+The amenability of these royalties and taxes to garnishment depends on what they are used for, not on how they were raised.
+Judge Garza added (at p 254, paras 36 and 37 39): The phrase used for in 1610(a) is not a mere syntactical infelicity that permits courts to look beyond the use of property, and instead try to find any kind of nexus or connection to a commercial activity in the United States.
+The statute means what it says: property of a foreign sovereignmay be executed against only if it is used for a commercial activity.
+That the property is revenue from or otherwise generated by commercial activity in the United States does not thereby render the property amenable to execution.
+To use property for a commercial activity, within the ordinary meaning of use, would be to put the property in the service of the commercial activity, to carry out the activity by means of the property.
+Here, the royalty obligations in question represent the revenue, the income, from an allegedly commercial activity.
+In ordinary usage, we would not say that the revenue from a transaction is used for that transaction.
+Finally, Judge Garza referred to the Act (at p 256, para 42).
+He noted the distinction in the Act between the jurisdictional immunity in section 3(1), which provides that a state is not immune as respects proceedings relating to a commercial transaction and section 13(4), which, as he put it, makes explicit that the mere relationship to a commercial activity does not suffice to permit execution, the property must for the time being be in use or intended for use for a commercial purpose.
+He concluded that the Act parallels the FSIA on the footing that: it allows jurisdiction based on mere relationship to a commercial activity, but very clearly permits execution only depending on the use of the property.
+The distinction can clearly be seen from the different view of Judge Dennis, who dissented on this part of the case.
+He said (at p 264): Because the Texas oil companies' obligation to pay royalties to the Congo were necessary and integral to, and therefore used for, the joint venture commercial activity conducted, in substantial part in the United States, by the Congo and the other parties to the joint venture, those royalty obligations fell within the exceptions to immunity from execution provided for by FSIA 1610(a)(1).
+At page 254 (paras 37 39) Judge Garza, for the majority, rejected that sentence as a non sequitur for this reason: The phrase used for on its face denotes something different and more specific than the phrases integral to or necessary to.
+It also denotes something distinct (and narrower) than the other phrases the Bank uses in its petition, such as related to or contemplated by.
+The Connecticut Bank case has been followed in a number of cases in the United States.
+In Af Cap Inc v Republic of Congo 475 F3d 1080 (US Court of Appeals 9th Circuit, California 2007) the Court of Appeals rejected a submission that the court should determine whether property was used for commercial activity by examining the entire underlying activity that generated the property in question.
+In doing so it adopted the reasoning in the Connecticut Bank case, contrasting the language used for with the language related to or connected with in other parts of the FSIA.
+A differently constituted 9th Circuit Court of Appeals also adopted the same reasoning in 2007 in Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v Cubic Defense Systems Inc 495 F3d 1024, 2007.
+The case had similarities with the instant case.
+The Court said at pp 1036 1037 (para 6): To satisfy 1610(a), MOD must have used the Cubic judgment for a commercial activity in the United States, and this it has not done.
+We have recently stated that property is used for a commercial activity in the United States' when it is put into action, put into service, availed or employed for a commercial activity, not in connection with a commercial activity or in relation to a commercial activity.
+Af Cap Inc, 475 F3d at 1091 (emphasis in original).
+Cautioning that FSIA does not contemplate a strained analysis of the words 'used for' and commercial activity, we instructed courts to consider[ ] the use of the property in question in a straightforward manner.
+The Ministry has not used the Cubic judgment as security on a loan, as payment for goods, or in any other commercial activity.
+Instead, Iran intends to send the proceeds back to Iran for assimilation into MOD's general budget.
+Because repatriation into a ministry's budget does not constitute commercial activity, we hold that the Cubic judgment is not subject to attachment under 1610(a).
+See also EM Ltd v Republic of Argentina 473 F3d 463 (2nd Circuit, 2007) at p 484 (para 5), where NML was also a claimant.
+Those decisions are strong persuasive authority and, given the close relationship between the language in section 13(4) of the Act and 1610(a) of the FSIA, seem to me to support the meaning of the expression property which is for the time being in use or intended for use for commercial purposes in section 13(4) identified in para 17 above.
+Similar support is to be found in the decision of the majority on this point in the Court of Appeal in Hong Kong in FG Hemisphere Associates LLC v Democratic Republic of Congo [2010] HKCA 19.
+See in particular per Yuen JA at para 277 and Stock VP at para 179, where they held that at common law, applying the restrictive principle of immunity from execution, the question was whether the property was to be put to use for a private or commercial purpose.
+Although an appeal to the Court of Final Appeal succeeded on the basis that the Congo was entitled to absolute immunity, the reasoning of the majority of the Court of Appeal was not challenged and remains persuasive authority in cases where the restrictive principle of immunity from execution apples.
+On the facts of the instant case SerVaas cannot show that the Admitted Claims were property in use for a commercial purpose.
+It does not say that Iraq intended or intends to draw them down for commercial purposes.
+On the contrary, it accepts that they were intended to be used for sovereign purposes.
+By section 13(5) of the Act, the burden is on SerVaas to prove that the Certificate that the property is not in use for commercial purposes is not correct.
+It cannot do so unless it can show that it is entitled to rely upon the source of the Admitted Claims and can show that the source is commercial and not sovereign.
+For the reasons I have given, I would hold that the source of the Admitted Claims is irrelevant.
+It follows that it is not necessary to express a view upon the question whether the source is sovereign or commercial.
+In short, SerVaas cannot show that the debt is or was earmarked (or in use) for being drawn down upon in order to satisfy commercial liabilities.
+In para 75 Rix LJ said this: . it is difficult to see that the property in question, the admitted claim, has no current use.
+It is in use in order to secure the scheme dividend.
+Of course, the dividend, when secured, might be put to any of the uses to which money funds might be put, either by being expended or by being invested.
+For the present, however, until the dividend is paid, the claims obvious use and purpose, I would have thought, was to be the means by which the claims owner, Iraq, seeks to secure its value by way of a dividend in the scheme of arrangement.
+That is what the commercial debt was bought for in the first place, and, until the scheme of arrangement (or, in its absence, a liquidation) has been brought to fruition, the owner holds the debt for the purpose of seeking payment of its claim.
+For these purposes, Iraq is just like the holder of any commercial debt.
+As purchaser of the debt, it merely stands in the shoes of the merchants and other commercial parties who were the original owners of the debt in question.
+If those parties were still holders of the debt, it would not be said that they held it for no current purpose.
+It seems to me to be at least highly arguable that Iraq is in the same position.
+On this basis, the linchpin of Iraqs argument fails.
+For my part, I would not accept that analysis.
+It elides the historical origins of the Admitted Claims with their current and future use.
+The determinative feature, in my view, is the absence of any current or future commercial activity on the part of the state of Iraq.
+It is common ground that any dividends received from the administrators of Rafidain Bank will be paid to and used by the DFI, which is manifestly not a commercial purpose.
+The Admitted Claims are simply the means to the end of the dividends.
+They are nothing more than a legal mechanism by which Iraqs entitlement to receive dividend payments is secured and given effect to.
+In these circumstances, it is artificial and highly technical to seek to distinguish the Admitted Claims from the dividends that they secure.
+Neither is connected to, or destined for use in, any mercantile or profit making activity by Iraq.
+It follows that neither can sensibly be described as for the time being in use or intended for use for commercial purposes.
+It was suggested on behalf of SerVaas that, even if it cannot succeed in relation to the entirety of the Admitted Claims, in so far as the Claims were acquired with bonds, they were in use for a commercial transaction within section 3(3)(b) of the Act, namely a transaction for the provision of finance.
+The Court of Appeal unanimously rejected this part of SerVaas submissions.
+As Rix LJ put it at para 81, it was mere background.
+Assuming the expression in use or intended for use in section 13(4) is given the meaning discussed above, I cannot see any basis for reaching a different conclusion in respect of the Admitted Claims acquired with bonds.
+CONCLUSION
+For these reasons, which are essentially those given by Arnold J and Stanley Burnton LJ, I would dismiss the appeal.
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+A mother appeals against an order of the Court of Appeal (Thorpe, Longmore and McFarlane LJJ), [2011] EWCA Civ 1385, dated 14 December 2011, that she should forthwith return her son, WS (whom I will call W), and who was born on 13 November 2009 so is aged two, to Australia.
+The order was made pursuant to article 12 of the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (the Convention) and to section 1(2) of the Child Abduction and Custody Act 1985 which gives the Convention the force of law.
+In making its order the Court of Appeal set aside an order of Charles J, made in the High Court, Family Division, [2011] EWHC 2624 (Fam), dated 30 August 2011, that the application of Ws father for an order for his return forthwith to Australia pursuant to the Convention should be dismissed.
+In this court the mother is therefore the appellant and the father is the respondent.
+But there is now also an Intervener, namely Reunite International Child Abduction Centre (Reunite).
+The mother and father have not been married.
+The mother is British but now also has Australian citizenship.
+The father is Australian.
+They lived with W in Sydney until, on 2 February 2011, the mother removed W to England, specifically to the home of her mother, where they have since remained.
+So Australia was the state in which W was habitually resident immediately prior to his removal.
+In removing W from Australia the mother lacked both the fathers consent and the permission of an Australian court.
+In such circumstances her removal of W was in breach of rights of custody attributed to the father in relation to him under Australian law and it was therefore wrongful for the purpose of article 3 of the Convention.
+The only defence raised by the mother to the fathers application for an order for the summary return of W to Australia under the Convention was that provided by article 13(b) of it, namely that: there is a grave risk that his . return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
+Statistics published by the Permanent Bureau of the Hague Conference on Private International Law indicate that article 13(b) provides the defence against an order for summary return which succeeds more often than any other: see A Statistical Analysis of Applications made in 2008 under the 1980 Hague Convention, Lowe and Stephens, Cardiff Law School/The Permanent Bureau.
+Technically the establishment by a respondent of the grave risk identified in article 13(b) confers upon the court only a discretion not to order the childs return.
+In reality, however, it is impossible to conceive of circumstances in which, once such a risk is found to exist, it would be a legitimate exercise of the discretion nevertheless to order the childs return: see In re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619, para 55 (Baroness Hale).
+Nine months ago, in In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144, this court delivered a judgment in which it attempted to set out in clear terms the proper approach to a defence under article 13(b).
+It held, at paras 31 and 52, that the terms of the article were plain; that they needed neither elaboration nor gloss; and that, by themselves, they demonstrated the restricted availability of the defence.
+The court did not expect so soon to entertain a second appeal about the effect of article 13(b).
+It granted permission for the bringing of the present appeal largely out of provisional concern that, by the judgment delivered by Thorpe LJ (with which Longmore and McFarlane LJJ agreed), the Court of Appeal had expressed what it called the crucial question in terms which arguably represented not only a fresh gloss on the meaning of the article but one which happened to run directly counter to this courts analysis of its meaning in In Re E. Following announcement of this courts grant to the mother of permission to appeal, Reunite made its application for permission to intervene.
+In explaining the basis of its application, Reunite expressed identical concern about the Court of Appeals formulation of the crucial question; and it postulated the risk of confusion about the proper approach to a defence under article 13(b) in the absence of clarification by this court.
+B: THE CONDUCT OF THE PARTIES
+In her evidence, which, in that Charles J did not receive oral evidence, was only in writing, the mother sought to explain in great detail why, as she alleged, her life with the father in Sydney had become so intolerable that on 2 February 2011 she had returned, with W, to her country of origin.
+In doing so she made a large number of serious allegations against the father; but she linked her allegations against the father with important evidence about the state of her psychological health while she had been living in Australia.
+One of the unfortunate features of the proceedings in the Court of Appeal seems to this court to have been an erroneous assumption that the mothers allegations against the father were in effect entirely disputed and thus that, in the absence of oral evidence, an assessment of their truth had lain beyond the judges reach.
+In fact, however, the careful study by Charles J of the witness statements, and in particular of about 300 text messages and emails passing between the parents from January until June 2011, which were attached to them, revealed that a number of important allegations made by the mother against the father were admitted or at least, in the light of what he had said in the texts and emails, could not, as his counsel had conceded, realistically be denied.
+It was in 2005 that, with her British husband, the mother had gone to live in Australia.
+They were both nurses; indeed the mother has specialist qualifications in cancer and palliative care.
+They had no children; separated in 2007; and were divorced in Australia in 2008.
+In October 2008 the mother began her cohabitation with the father.
+It is agreed that, at an early stage in their relationship, the father informed the mother that between 1994 and 1998 he had been a heroin addict and had contracted Hepatitis C.
+Unfortunately the beginning of their relationship, and of the mothers pregnancy in February 2009, was a period of impending financial disaster for the father; and in May 2009 his import business finally collapsed with massive debts.
+Indeed the fathers mother had offered her house as security for the debts and ultimately, a few months after the mothers departure, his mother reluctantly accepted the need for her house to be sold; she now occupies rented accommodation.
+Following the collapse of his business the father found poorly paid work as an estate agent.
+From then onwards he contributed little to the parents finances and the burden of meeting their household expenditure fell largely on the mother who, other than for several months following Ws birth, was working as a specialist clinical nurse in Sydney.
+But the parties got into debt; and the mother still remains liable to an Australian bank in a sum equal to about 8000.
+It is agreed that the fathers grave financial problems led to serious alcohol and drug relapses on his part during the two years from early in 2009 until the mothers departure.
+The extent of his relapses is formally in issue but his emails to the mother impel a conclusion that his formal admission in a witness statement of alcohol abuse only on several occasions and of use of cocaine only on three occasions during that period is far from frank.
+The texts and emails begin in January 2011 when the relationship between the parents was breaking down.
+The fathers messages to the mother on 13 January 2011 to get fucked, bitch and Ill . belt ya were sent when, in fairness to him, he may not have been fully in control of his faculties.
+On the following day he wrote that he had made terrible mistakes.
+On 18 January he offered to submit to drug testing.
+On any view the evening of 19 January was a crucial day in the breakdown.
+The mother contends that she found the father injecting himself in the car in their garage and that such was the reason why, as is agreed, she called the police and told him not to enter their flat again.
+The father admits only that he had been out drinking that day.
+But, in some of his 14 texts sent to the mother that day, the father offered to go to meetings of Alcoholics Anonymous and/or Narcotics Anonymous every night if necessary; pleaded for another chance; asked for forgiveness and threatened to kill himself.
+A month later, from England, the mother wrote to the father: Those last few weeks in Sydney were literally hell.
+I was terrified and devastated as well as penniless.
+You left me with not even enough money to buy nappies for [W].
+But you managed to get cash from your credit cards to buy drugs.
+Even the birth of your son was never enough to stop you drinking and using drugs.
+That night I found you using in the garage you could have come upstairs and done anything to us that is why I called the police. [W] deserves to be safe and so do I.
+The fathers reply was: I understand all that but I still need my family and my son needs his father.
+On 27 January 2011 the Australian police obtained on the mothers behalf, without formal notice to the father, an Apprehended Violence Order in the local court.
+It is analogous to our non molestation order.
+On 30 January they served it on the father and, during the following three days until the mothers departure, he was not in significant breach of it.
+In addition to the incontrovertible evidence before Charles J about the fathers substantial descent into abuse and his inability to make a proper financial contribution to the family, there were allegations by the mother of occasions of serious violence on the part of the father towards her (including a threat to kill her) and counter allegations of violence on her part towards him.
+The text and email traffic between February and June 2011 demonstrated to Charles J not only how hurt the mother had been by the collapse of her relationship with the father but how desolate he had been as a result of the mothers removal, with W, to England.
+Although it was inappropriate as well as impossible for the judge to make any assessment of his qualities as a parent, the fathers love for W as well as for the mother and his pain at their loss were manifest.
+On 26 May 2011 he told the mother that he had driven to The Gap, which is Sydneys equivalent of our Beachy Head, and had come as close as ever to committing suicide; and, in evidence, he confirmed that he had indeed genuinely contemplated suicide.
+Understandably the father also demonstrated anger.
+On 27 June, following receipt of the mothers first witness statement, he wrote to her that he was constantly on the edge of a nervous breakdown.
+He also wrote: Who are you to decide that I am no longer eligible to be in [Ws] life.
+I hate you.
+You are evil.
+I want a court ordered mental health assessment for you when youre back.
+I dont want you hurting my son.
+Awful despicable evil person.
+Also before Charles J were numerous emails to the mother from the fathers father, his mother and his sister, and copies to her of emails from them to the father himself, all sent during the months following the mothers departure.
+They expressed unequivocal sympathy for the mothers plight in Australia in the light of the fathers condition and at length lamented his renewed descent into addiction.
+When, however, the mother attached their emails to a witness statement, the fathers mother and sister signed statements in which they protested that she had substantially misled them about the extent of his problems.
+C: THE MOTHERS PSYCHOLOGICAL HEALTH
+The mother put before Charles J letters from Dr McGrath, her GP in Sydney.
+Dr McGrath wrote that the mother had been her patient since January 2007; that she had then prescribed anti depressant medication in order to combat the mothers anxiety and depression related to separation from her husband; that the mother had continued to take the medication until (as the mother was to clarify in her evidence) she became pregnant in February 2009; that she had seen the mother on 24 January 2011 when she was tearful and agitated; and that, in the light of the mothers depression, which in her opinion might easily recur in a stressful situation, she considered that her health would suffer greatly if she was required to return to Australia.
+But the mother put in further medical evidence of a feature which is highly unusual in applications under the Convention.
+It was to the effect that the mother had had extensive psychotherapy in Australia.
+The evidence, in the form of a report by Ms MacKenzie, a psychologist, was that, from June 2010, she had seen the mother face to face on eleven occasions in order to address her chronic anxiety symptoms and to offer her cognitive behavioural therapy and supportive interpersonal therapy; and that, following the mothers removal to England, she had conducted nine further sessions of counselling with her by telephone.
+Charles J was understandably critical of Ms MacKenzie for stating as facts the allegations about the father which the mother had made to her and indeed for venturing even a provisional clinical opinion about him.
+But Ms MacKenzies professional conclusions about the mother, born of extensive attendance upon her, remained of great relevance.
+She wrote that, from childhood, the mother had had an underlying and chronic anxiety condition; that she was subject to panic attacks; that she had seen the mother unravel; that the mothers affect of fear overwhelmed her; that fear of the fathers mental instability, added to the stress of isolation in Australia from her family, might well undermine the mothers capacity to hold herself together; that her likely clinical depression could diminish her secure attachment to W; and that, in that (so Ms MacKenzie said) the father was capable of being impulsive and dangerous towards her, the mother would be in a constant state of hypervigilance, this being the very condition which would trigger an anxiety state.
+Ms MacKenzie wrote: Should [the mother] be forced to return to Australia, I am concerned her anxiety will become crippling.
+There was to be still more evidence about the mothers psychological health: see para 25.
+D: THE PRELIMINARY ISSUE
+In In re E this court said: 36.
+There is obviously a tension between the inability of the court to resolve factual disputes between the parties and the risks that the child will face if the allegations are in fact true. [Counsel] submits that there is a sensible and pragmatic solution.
+Where allegations of domestic abuse are made, the court should first ask whether, if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation.
+If so, the court must then ask how the child can be protected against the risk.
+The appropriate protective measures and their efficacy will obviously vary from case to case and from country to country.
+Without such protective measures the court may have no option but to do the best it can to resolve the disputed issues.
+Among directions given by consent on 30 June 2011 in the fathers application for an order under the Convention, issued 15 days earlier, Coleridge J appointed a hearing on 27 July 2011 (a) for consideration of whether, taken at their highest, the allegations made by the mother would come within the article 13(b) exception having the proposed regard undertakings/protective measures; (b) . (c) subject to the courts conclusion as to (a). above, [for] summary disposal or directions to enable a further hearing with such oral evidence as the court considers appropriate to take place.
+At first sight the direction appears to be a reasonable attempt by counsel, endorsed by Coleridge J, to follow the guidance set by this court in In re E.
+It met, however, with criticism both by Charles J and, in arrestingly vehement terms, by Thorpe LJ, who observed that it had bedevilled the hearing before Charles J and that, if a practice of making such a direction had arisen, it should be immediately stifled.
+Although this court is less clear that the direction had any such dramatic ill effects, it accepts that, for two reasons, to both of which Charles J referred, it would have been better for the direction not to have been given.
+First, at a general level, the approach commended in In re E should form part of the courts general process of reasoning in its appraisal of a defence under the article and does not require formal identification as a preliminary point.
+Second, and more importantly, the guidance given in para 36 of In re E relates to factual disputes and to resolution of the disputed issues.
+At the time of the hearing before Coleridge J, prior among other things to the adduction by the mother of any medical evidence, counsel may well have supposed that all the material to be relied on by the mother in aid of her defence would be disputed.
+Such a supposition may have endured long after the invalidity of it should have been recognised; and, as we will demonstrate, it seems to have lulled even the Court of Appeal into considering the defence as resting merely on disputed allegations by the mother, albeit as countered, in its view, by adequate protective measures offered by the father.
+E: THE FURTHER EVIDENCE
+On 28 July 2011 Charles J adjourned the hearing until 30 August 2011.
+He did so because he considered that in two respects he needed further evidence.
+The first was a more detailed presentation by the father of the practical and financial safeguards which would be available to the mother and [W] in the event of their return to Australia.
+The second was a report by a psychiatrist, to be instructed by both parties, upon: (i) the mothers current psychiatric or psychological condition; (ii) the psychiatric or psychological impact on the mother of a return to Australia; (iii) what if any protective measures, such as psychological interventions, accommodation the address of which was unknown to the father, support from the mothers close family, or any other measure, would it be necessary to put in place to safeguard the effect on the mothers mental health of a return to Australia?
+At the adjourned hearing on 30 August 2011 the father duly put forward, by undertakings, a comprehensive raft of measures suggested to be protective of the mother and W in the event of a return to Australia.
+He undertook to pay for their flights and, in advance of their return, to deposit a sum which would cover the rent of their reasonable accommodation for two months.
+Additionally, until an Australian court should otherwise order, he undertook (a) (b) (c) (d) to make a specified contribution towards their further rent and by way of periodical payments for W; to comply with the terms of the Apprehended Violence Order, which had been expressed to continue until 27 January 2012; not to remove W from the mothers care save for the purpose of any agreed contact with him; not to approach within 250 metres of their accommodation save as might be agreed in writing for the purpose of any contact with W; and not to seek to contact the mother save through lawyers. (e) The father further undertook to lodge a signed copy of his undertakings with his local family court in advance of the return of the mother and W.
+The jointly instructed psychiatrist was Dr Kampers who interviewed the mother and wrote a report dated 10 August 2011.
+He suggested that, on the basis of the written evidence and of the long history which the mother gave him orally, much of which he set out, the mother had, when in Australia, suffered Battered Womens Syndrome, being a form of Post Traumatic Stress Disorder, followed, after 19 January 2011, by an acute stress reaction.
+His report on the first point identified in the order of Charles J was as follows: [The mothers] current psychiatric and psychological condition is stable and healthy and she does not display any current features of depression, nor of Post Traumatic Stress Disorder.
+Her symptoms of acute stress have resolved.
+His report on the second point identified in the order was as follows: The likely psychiatric and psychological impact on [the mother] of a return to Australia is significant and severe.
+The source of her stress ([the father]) is in Australia.
+Contact with this source of stress (re exposure to [him]) puts her at risk for further Acute Stress and Post Traumatic Stress.
+She has a prior history of anxiety and depression which not only lowers her threshold for acute stress and Post Traumatic Stress but also increases the likelihood of a recurrence of her anxiety and depression.
+The case has proceeded on the basis that Dr Kampers failed to address the question which represented the third point identified in the judges order.
+We are not convinced, however, that he failed to do so.
+For, following his reports on the first and second points, he referred to the need for a partners abuser to undergo specialised counselling; observed that, given that both alcohol and drug addictions figured in his history, the father should also be treated for them; and concluded by saying the most protective measure would be psychological intervention for the father, as detailed.
+We think therefore that there are grounds for concluding that Dr Kampers answer to the judges question about necessary protective measures such as psychological interventions. was that it was necessary for the father to get treatment.
+We accept, however, that Dr Kampers could more clearly have addressed the question.
+Following receipt of the report, neither side asked him to clarify his answer to it; indeed they joined in telling him that he was no longer required to attend the adjourned hearing.
+The decision on behalf of the father not to ask him to clarify his answer was tactical; and the decision on behalf of the mother was at any rate partly tactical.
+Each was apparently fearful of collecting an unhelpful response.
+But the burden of establishing her defence rested upon the mother; and her advisers were perhaps taking a substantial risk in choosing not to ask Dr Kampers to do so.
+The parties might also have anticipated that, at the adjourned hearing, Charles J would insist upon an immediate and clearer answer by Dr Kampers to his question, for example by email.
+In the event the judge did not insist on it but expressed regret about the absence of Dr Kampers from court.
+F: SUBJECTIVE PERCEPTIONS
+In In re E this court considered the situation in which the anxieties of a respondent mother about a return with the child to the state of habitual residence were not based upon objective risk to her but nevertheless were of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to the point at which the childs situation would become intolerable.
+No doubt a court will look very critically at an assertion of intense anxieties not based upon objective risk; and will, among other things, ask itself whether they can be dispelled.
+But in In re E it was this courts clear view that such anxieties could in principle found the defence.
+Thus, at para 34, it recorded, with approval, a concession by Mr Turner QC, who was counsel for the father in that case, that, if there was a grave risk that the child would be placed in an intolerable situation, the source of it is irrelevant: eg, where a mothers subjective perception of events lead to a mental illness which could have intolerable consequences for the child.
+Furthermore, when, at para 49, the court turned its attention to the facts of that case, it said that it found no reason to doubt that the risk to the mothers mental health, whether it be the result of objective reality or of the mothers subjective perception of reality, or a combination of the two, is very real.
+In the present proceedings considerable reference was made to the mothers subjective perceptions both of past events and no doubt linked yet importantly different of future risks.
+It began in the interlocutory judgment, [2011] EWHC 2625 (Fam), dated 28 July 2011, in which Charles J twice referred to the mothers perception of the fathers attitude and likely reaction.
+In his substantive judgment dated 30 August 2011 Charles J sought faithfully to follow the guidance given by this court at para 36 of its judgment in In re E, set out in para 20 above.
+Thus (a) he began by assuming that the mothers allegations against the father were true; (b) he concluded that, on that assumption, and in the light of the fragility of the mothers psychological health, the protective measures offered by the father would not obviate the grave risk that, if returned to Australia, W would be placed in an intolerable situation; so (c) he proceeded to consider, as best he could in the light of the absence of oral evidence and the summary character of the inquiry, whether the mothers allegations were indeed true; and (d) following a careful appraisal of the documentary evidence, including the mass of emails between the parents, he concluded that, as counsel for the father had been constrained to acknowledge, the mother had made out a good prima facie case that she was the victim of significant abuse at the hands of the father (italics supplied).
+In the light of his conclusion at (d), which on any view was open to him, it seems to us that it was unnecessary for Charles J to have continued to address the mothers subjective perceptions.
+For the effect of his conclusion was that the mothers anxieties were based on objective reality.
+So it added nothing for him to refer, as in effect he did in three separate paragraphs of his substantive judgment, to the mothers genuine conviction that she has been the victim of domestic abuse, by which he implied that she was convinced about something that might or might not be true.
+The only reference by the Court of Appeal to the history between the parents was in the judgment of Thorpe LJ as follows: 4.
+The parents relationship was a stormy one and, on the mothers case, the father behaved very badly towards her.
+In January 2011 the mother called the police who took out an Apprehended Domestic Violence Order against the father on 27 January.
+There was no reference in his judgment to: (a) the fathers descent into alcohol abuse; (b) his descent back into drug abuse; (c) the absence of evidence that he had surmounted these problems; (d) the likely effect of them on his ability to comply with Australian court orders and, to which Charles J had referred, the possible need for the mother to take enforcement proceedings; (e) his contemplation of suicide; (f) his failure to maintain the family properly; (g) the likely effect of his failure on the ability of the Australian courts to devise a secure financial foundation for the household of the mother, with child care responsibilities, in Australia; (h) the many admissions made by the father in the texts and emails; (i) (j) the judges finding, on the necessarily provisional basis, that the mother had indeed been the victim of significant domestic abuse at the hands of the father; and the fact, to which Charles J had also referred, that, however effective the steps to be taken by the Australian courts to protect the mother, she and the father would probably need to have a degree of personal communication for the purposes of his contact with W and of her likely application for permission to remove him back to England.
+Thus, with respect to them, the hard pressed judges in the Court of Appeal made an entirely inadequate address of the mothers case.
+Instead they treated the foundation of her defence as being merely her subjective perception of risks which might lack any foundation in reality.
+Thus, in para 26 of his judgment, Thorpe LJ described the fathers first ground of appeal as being that Charles J had erred in concluding that the effect of the judgment in In re E was to raise the bar against applicants seeking a return order where the respondent relied on a subjective perception of the risks and consequences of return.
+We should add that Charles J had nowhere said that the effect of that judgment had been to raise the bar and we do not agree that it did so.
+Nor, for that matter, do we agree with the suggestion of Thorpe LJ in paras 34 and 36 that the judgment in In re E had been no more than a restatement of the law of the Convention: it was primarily an exercise in the removal from it of disfiguring excrescence.
+But, as we have shown in para 27 above, the court did recognise the possibility that a respondents merely subjective perception of risks could, as a matter of logic, found the defence.
+Unfortunately in the present case the Court of Appeal found difficulty in accepting that part of the decision in In re E.
+Thus Thorpe LJ said: 43.
+Nor would I accept Mr Turners submission that his recorded concession in paragraph 34 of the judgment in Re E is authoritive [sic] for the proposition that it is unnecessary for the court to weigh objective reality of asserted anxiety.
+The crucial question for the judge remained: were these asserted risk, insecurities and anxieties realistically and reasonably held in the face of the protective package the extent of which would commonly be defined not by the applicant but by the court? And Thorpe LJ added: 49.
+This is a paradigm case for a return order to achieve the objectives of the Convention.
+Although Mr Turner asserts that the effect of a respondents clearly subjective perception of risks on return leading to an intolerable situation for the child is a permissible ground for refusing a return order he has been able to cite no reported case with that characteristic.
+In the light of these passages we must make clear the effect of what this court said in In re E.
+The critical question is what will happen if, with the mother, the child is returned.
+If the court concludes that, on return, the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child, then the child should not be returned.
+It matters not whether the mothers anxieties will be reasonable or unreasonable.
+The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the courts assessment of the mothers mental state if the child is returned.
+G: CONCLUSION
+As we have explained, the Court of Appeal failed to appreciate that the mothers fears about the fathers likely conduct rested on much more than disputed allegations.
+Equally it paid scant regard to the unusually powerful nature of the medical evidence about the mother, in particular of her receipt of regular psychotherapy while in Australia.
+This conferred an especial authority on Ms MacKenzies report, of which the court scarcely made mention.
+Overarchingly, however, it failed to recognise that the judgement about the level of risk which was required to be made by article 13(b) was one which fell to be made by Charles J and that it should not overturn his judgement unless, whether by reference to the law or to the evidence, it had not been open to him to make it.
+Charles J was right to give central consideration to the interim protective measures offered by the father.
+But his judgement was that, in the light of the established history between the parents and of the mothers acute psychological frailty for which three professionals vouched, they did not obviate the grave risk to W.
+It must have been a difficult decision to reach but, in the view of this court, it was open to him to make that judgement; and so it was not open to the Court of Appeal to substitute its contrary view.
+The fact that Charles J had not received oral evidence did not deprive his judgment of its primacy in that sense.
+The decision of the House of Lords in In re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40, [2006] 1 AC 80, concerned the Court of Appeals reversal of a judges discretionary dismissal of an application under the Children Act 1989 for a specific issue order that a child be summarily returned to Saudi Arabia.
+Baroness Hale, with whose speech all the other members of the committee agreed, said: 12.
+Too ready an interference by the appellate court, particularly if it always seems to be in the direction of one result rather than the other, risks robbing the trial judge of the discretion entrusted to him by the law.
+In short, if trial judges are led to believe that, even if they direct themselves impeccably on the law, make findings of fact which are open to them on the evidence, and are careful, as this judge undoubtedly was, in their evaluation and weighing of the relevant factors, their decisions are liable to be overturned unless they reach a particular conclusion, they will come to believe that they do not in fact have any choice or discretion in the matter.
+On that ground alone.
+I would allow this appeal.
+This court allows the appeal and restores the order of Charles J.
+H: POSTSCRIPT
+In In re E this court addressed a decision of the Grand Chamber of the European Court of Human Rights (the ECtHR) which it understood had caused widespread concern and even consternation about such approach to the determination of an application under the Hague Convention as was necessary in order to avoid infringement of the rights of the child and/or of the parents under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
+The decision was Neulinger and Shuruk v Switzerland [2011] 1 FLR 122.
+In particular, as this court pointed out at para 21 of its judgment in In re E, the Grand Chamber had suggested, at para 139, that article 8 required the court to which an application under the Hague Convention was made [to conduct] an in depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and [to make] a balanced and reasonable assessment of the respective interests of each person.
+In In re E, building on helpful comments about the decision which had been made extrajudicially by the then President of the ECtHR, this court stressed, at paras 22 to 27, that it had been the very object of the Hague Convention to avoid an in depth examination of the childs future in the determination of an application for a summary order for return to the State of the childs habitual residence; that a properly careful determination of such an application did not equate to the in depth examination described in para 139 of the judgment in the Neulinger case; that the reference to an in depth examination should not be taken out of context and applied generally; and that it would be most unlikely that a proper application of the Hague Convention would infringe the rights of any members of the family under article 8.
+In the present appeal Reunite has drawn to this courts attention that on 13 December 2011, in X v Latvia (Application No.27853/09), the ECtHR (Third Section) has unfortunately reiterated, at para 66, in terms identical to those in para 139 of the Neulinger case, the suggested requirement of an in depth examination in the determination of applications under the Hague Convention.
+With the utmost respect to our colleagues in Strasbourg, we reiterate our conviction, as Reunite requests us to do, that neither the Hague Convention nor, surely, article 8 of the European Convention requires the court which determines an application under the former to conduct an in depth examination of the sort described.
+Indeed it would be entirely inappropriate.
diff --git a/UK-Abs/train-data/judgement/uksc-2012-0003.txt b/UK-Abs/train-data/judgement/uksc-2012-0003.txt
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+This appeal arises out of applications by the Financial Services Authority for orders to wind up the appellants in the public interest under section 367(1)(c) of the Financial Services and Markets Act 2000, on the ground that each of them is carrying on, or has carried on, a regulated activity in contravention of the general prohibition.
+The general prohibition is the prohibition in Section 19 of the Act, which provides that no person may carry on a regulated activity unless he is either an authorised or an exempt person.
+Regulated activities are those specified by subordinate legislation: see section 22(5).
+They include a wide range of general insurance business, defined by Article 10 of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (SI 2001/544), as the business of effecting or carrying out any of eighteen classes of contract of general insurance listed in Schedule 1, Part I to the Order.
+The class which is most directly relevant to the present appeal is Class 16 (Miscellaneous Financial Loss).
+The first appellant is Digital Satellite Warranty Cover Ltd and the second is Bernard Freeman and Michael Anthony John Sullivan trading as Satellite Services.
+The business of both firms consisted of selling and performing extended warranty contracts under which, in consideration of a periodic payment, they contracted to repair or if necessary replace satellite television dishes, digital boxes and associated equipment in the event of breakdown or malfunction or, in certain cases, physical damage.
+This is a sufficient summary of the terms for present purposes.
+Two further points should, however, be made about them.
+The first is that the courts below proceeded on the footing that at common law the contracts were contracts of insurance.
+That assumption, although not accepted by the appellants, is not challenged on these appeals.
+The second is that it was an important feature of the contracts that the appellants undertook only to provide benefits in kind, i.e. repair services or replacement goods.
+There was no contractual obligation to pay money.
+The appellants were not authorised under the Financial Services and Markets Act 2000 to carry on any kind of insurance business, and no question of exemption arises.
+Their case is that even on the footing that they were making and performing contracts of insurance, the contracts were not of a kind which required their business to be authorised under Financial Services and Markets Act 2000.
+Warren J [2011] Bus LR 981 rejected that argument and ordered the appellants to be wound up.
+Their appeal was dismissed by the Court of Appeal [2012] Bus LR 990, and in my opinion it should be dismissed here also.
+The United Kingdom legislation governing the authorisation and regulation of direct general insurance business was enacted to give effect to the successive EC Council Non life Directives.
+The eighteen classes in the Regulated Activities Order substantially correspond to the eighteen classes in the Annex to the First Council Non life Insurance Directive 73/239/EEC as amended by Council Directive 84/641/EEC.
+The argument as presented to us was that in this Directive Classes 1 to 17 do not extend to contracts of insurance providing benefits in kind, and that in transposing the Directives into national law, member states were not entitled to regulate either wider or narrower classes of direct non life business.
+Therefore, so it is said, the Regulated Activities Order must be construed as applying only to contracts of insurance providing for pecuniary benefits.
+Ms Anderson QC, who appeared for the appellants, accepted that member states were entitled to regulate additional categories of direct non life business, but not in the same legislative provisions which transposed the Directive into national law and not by redefining classes of business specified in the Directives more broadly than the Directives themselves.
+They could do it, she submitted, only by a distinct enactment and then only by identifying distinct additional categories.
+Ms Anderson also accepted that Class 18 (Assistance), which covers contracts of insurance providing assistance for persons who get into difficulties, did extend to those providing benefits in kind.
+But the Authority has not sought to bring the present case within Class 18.
+The Court of Appeal doubted whether it was correct that Classes 1 to 17 in the Annex to the First Non life Directive excluded contracts of insurance providing for benefits in kind.
+For my part I share these doubts, but it may well be that that question could be finally resolved only by a reference to the Court of Justice.
+So, like the Court of Appeal, I would not decide this appeal on that ground.
+The real problem about the appellants case is more fundamental.
+It depends upon the proposition that in specifying certain categories of direct non life insurance business which member states must regulate in accordance with EU law, the First Directive has precluded member states from regulating further or wider categories under their national law, at any rate in the same legislative provisions which transpose the Directive into national law.
+I do not accept this.
+It is in my view clear that the First Directive is concerned only to prescribe what kinds of business national law must regulate and not what other kinds of business it may regulate.
+Still less is it concerned with the legislative technique that member states may employ to regulate other kinds of business to which the Directive ex hypothesi does not apply.
+It follows that even if one assumes in the appellants favour that Classes 1 to 17 in the Annex to the First Directive are confined to insurance of the relevant descriptions providing pecuniary benefits, there is nothing to prevent the United Kingdom from legislating to regulate insurance of those descriptions irrespective of whether they provide benefits in cash or kind or both.
+To explain why this must be so, it is necessary to say something about the way in which the statutory regulation of insurers has developed in the United Kingdom and in the European Union.
+Statutory regulation began in the United Kingdom in a limited way with the
+Life Assurance Companies Act 1870 which applied, as its name suggests, only to life offices, whose contracts depended on their maintaining their solvency over what might be very long periods.
+However, the first reasonably comprehensive scheme of statutory regulation dates from the Insurance Companies Act 1958 and Part II of the Companies Act 1967.
+The 1958 Act introduced a basic scheme of solvency regulation applicable to all insurers writing specified classes of business, apart from Lloyds underwriters and certain trade unions and friendly societies.
+The Act of 1967 modified that scheme and introduced a system of authorisation and control based mainly on the suitability of officers and controllers.
+It also brought wider categories of insurance business within the scope of regulation, including pecuniary loss insurance business.
+Both Acts, together with amendments made by the Insurance Companies Amendment Act 1973, were consolidated with insignificant changes in the Insurance Companies Act 1974.
+Since the United Kingdom joined the EEC in 1973, the regulation of
+insurance business has been governed by increasingly comprehensive schemes of regulation based on EC Directives.
+The Insurance Companies Act 1974 was already obsolescent at the time that it was passed, because in July 1973, the EC Council of Ministers issued the First Non life Insurance Directive which introduced a wholly different principle of regulation.
+This had been under consideration by the institutions of the European Community since the middle of the 1960s at a time when the United Kingdom was not a member and consequently had only limited input into it.
+United Kingdom legislation up to and including the Insurance Companies Act 1974 had been entirely concerned with consumer protection.
+The protection of assureds is of course in one sense the ultimate purpose of all regulation of the sector.
+But the legal base of the First Non life Directive was Article 57(2) of the original treaty, which was one of a number of treaty provisions concerned with freedom of establishment.
+It provided for the co ordination of national schemes of regulation concerning the engagement in and exercise of non wage earning activities.
+The Directive was concerned to limit the propensity of national schemes of insurance regulation to impede freedom of establishment.
+It had two main objects.
+One was to provide a limited measure of uniformity in the principles governing the authorisation of insurers to carry on direct non life business under the various national schemes of regulation.
+The other was to ensure that the national schemes assessed the solvency of insurers in accordance with a uniform system of solvency margins, calculated as a specified percentage of premium income or of claims and provisions, whichever was the higher.
+The authorisation of insurers was dealt with by Section A (Articles 6 12).
+Article 6 required member states to have a system for authorising insurers carrying on business in their territory, which would apply whether the insurers head office was in that member state or in another one.
+But the Directive did not lay down common rules or criteria for authorisation except in the particular respects identified in Articles 6 to 12.
+These were, in summary, as follows: (i) member states were not permitted to make authorisation conditional on the provision of a deposit or security (Article 6.3), or to grant it in the light of the economic requirements of the market (Article 8.4); (ii) member states were required to authorise insurers for specified classes of business, and to identify those classes by reference to a standard list in the Annex (Article 7); (iii) only certain kinds of legal entity could be authorised (Article 8.1(a)); (iv) authorised insurers must be required to limit their business activities to insurance (Article 8.1(b)); (v) authorised insurers were to be required to furnish specified categories of information, both at the time of seeking authorisation and afterwards (Articles 8.2 and 9 11); (vi) where authorisation was refused, reasons had to be given, and a right of appeal to a court made available (Article 12).
+Section C: Withdrawal of authorization (Article 22) provided that an authorisation once given could be withdrawn on specified grounds, essentially non compliance with other provisions of the Directive.
+Solvency regulation was dealt with by Section B (Articles 13 21).
+This imposed a common solvency margin and a number of criteria for the assessment of solvency, together with detailed provisions for the administrative supervision of insurers solvency on a common basis.
+For present purposes it is enough to make two observations about this part of the Directive.
+The first is that both the premium basis and the claims basis for assessing solvency required national regulators to take account of the whole insurance business of the relevant insurer, including those parts of it which were not within the scope of the Directive (such as reinsurance) or were excluded from it by Article 2 (such as permanent health insurance) or were not referred to in the standard classes listed in the Annex.
+This is clear from Article 16.3, which requires the premium basis of solvency assessment to be applied by reference to premiums in respect of all direct business and reinsurance, and the claims basis of solvency assessment to be applied by reference to claims and provisions in respect of all direct business and reinsurance.
+These provisions must be read with Article 8.1(b), which requires member states when authorising insurers to require them to limit their business to the business of insurance and operations directly arising therefrom to the exclusion of all other commercial business.
+This is not limited to insurance business in the eighteen standard classes.
+It covers the whole of insurance as opposed to other commercial business.
+Indeed, no workable scheme of solvency regulation could operate on any other basis.
+The second observation to be made about Section B of the Directive is that it provides for a guarantee fund of one third of the solvency margin, but subject to a minimum value which varies depending on which of the classes of business listed in the Annex the insurer engages in.
+The First Non life Directive originally covered only business within what are now Classes 1 to 17 of the Annex.
+In 1984, it was amended by Directive 84/641/EEC so as to add a new Class 18 covering assistance in cash or kind to persons who get into difficulties while travelling.
+A number of consequential amendments were made to deal with the new Class 18.
+The amending Directive of 1984 did not, however, alter the basic scheme of the original Directive governing either authorisation or solvency.
+Manifestly the First Non life Directive, whether in its original or its amended form, was not intended to impose a comprehensive scheme of authorisation.
+Nor can the eighteen standard classes of insurance business listed in the amended Annex have been intended to limit the freedom of member states to regulate other categories of business.
+In the First Directive, Article 7.2 requires that with specified exceptions authorisations are to be given by reference to the standard classes.
+This affects the operation of the Directive in only two ways.
+First, it is relevant to the question what information must be included in the scheme of operations which Article 8.1(c) requires to be submitted in support of an application for authorisation.
+Information about the nature of the risks to be written or the tariffs to be charged is dispensed with for certain classes: see Articles 9 and 10.1.
+Secondly, it is relevant to the determination under Article 17.2 of the minimum size of the guarantee fund, which varies according to the classes of business written.
+In neither respect would the operation of these provisions be undermined if member states were to regulate further or wider categories of insurance business.
+In particular, claims and premiums generated by insurance business fall to be included in the solvency assessment whether the business falls within the standard classes or not.
+In the unlikely event that an insurer carried on business none of which fell within any of the standard classes, it would be impossible to calculate a minimum guarantee fund for the purpose of Article 17.1, but it would be unnecessary to do so because such an insurer would not fall within the scope of the Directive at all: see Article 1.
+The partial character of the scheme of authorisation imposed by the First Non life Directive is recognised in its recitals.
+These show that it was appreciated that significant differences between national schemes of authorisation would persist, and that these would continue to operate as partial barriers to the exercise of the right of establishment.
+Thus Recital (2) of the Directive as originally issued records that it was necessary to eliminate certain divergencies between national schemes of regulation.
+Recitals (2) and (3) of the amending Directive of 1984 recorded that differences between national schemes of authorisation and regulation for insurance providing for benefits in kind had hitherto operated as barriers to the exercise of the right of establishment.
+It must therefore have been appreciated that insurance of this kind was being authorised and regulated by member states under their national law even if it was not within the original seventeen standard classes.
+It is clear from the scheme of the First Non life Directive as a whole that the object was to impose certain uniform principles of authorisation and regulation on insurance business in the standard classes but not on any business falling outside those classes.
+This is why Article 1 of the Directive identified its subject matter as being the conduct of business in the classes of insurance defined in the Annex to this Directive.
+The wording changed after the amendment of 1984, but not the substance.
+The standard classes in the Annex to the First Non life Directive acquired a wider significance after 1988 with the Second and Third Non life Directives.
+The Second Directive 88/357/EEC introduced what has been called passporting (although the term does not appear in it).
+Insurers established in any member state were entitled to write large risks in any other member state without a separate authorisation in the host state.
+The Third Directive 92/49/EEC extended passporting more widely.
+Recital (3) recorded that the three Non life Directives marked stages of a progressive extension of regulation based on common standards derived from EU law, and at Recital (5) that the approach of all three consisted in bringing about such harmonization as is essential, necessary and sufficient to achieve the mutual recognition of authorizations and prudential control systems.
+Recital (8) recorded that its object was (among other things) to define minimum standards, and that a home member state may lay down stricter rules for insurance undertakings regulated by its own competent authorities.
+Its substantive provisions extensively amended the First Directive so as to enable insurers authorised in one member state to carry on a category of insurance business in the Annex to the First Directive, to carry on the same category of business in every other member state without a separate authorisation there.
+What this means is that if the insurer is authorised in, say, the United Kingdom to carry on a category of business which is not included in the eighteen classes in the Annex, the premium income and claims generated by that category of business will still count for solvency purposes provided that at least part of his other business falls within the standard classes.
+However, he will not by virtue of his UK authorisation be entitled to carry on that particular category of business in another member state.
+He will have to submit himself to whatever rules the other member state may apply to it.
+Member states deal with each others authorisations by reference to the standard classes in the Directive.
+As far as they are concerned, any difference between the content of those classes and that of the corresponding categories of business in national law is irrelevant.
+More generally, it is impossible to discern any rational reason why the EU legislator should have wished to prevent member states from imposing their own authorisation regime on insurance business outside the standard classes.
+Any adverse impact that that might have on the exercise of the right of establishment would be the inevitable, and recognised, consequence of the EU legislators decision not to bring insurance of that kind within the scheme of the Directives governing authorisation.
+If the Directives were to be read as precluding national regulation of insurance business not within the scope of its authorisation regime, the result would not be to prevent that category of business from being written.
+It would be to allow it to be carried on without any regulatory protection for consumers whatever, whether under EU or national law, except for the protection conferred by the solvency margin required by the First Directive, which applies regardless of the categories of business written.
+Ms. Andersons concession that member states are entitled to regulate insurance business lying outside the standard classes under legislative provisions distinct from those which transpose the Directives into national law, is a tribute to her forensic realism.
+But it contributes nothing to the coherence of her case.
+The only remaining question is whether the Regulated Activities Order does in fact apply to business of the kind which these appellants were carrying on.
+I can deal with this question relatively shortly, because both Warren J and the Court of Appeal answered it against the Appellant for reasons which I regard as compelling.
+The point turns on the question whether the appellants business falls within any of the classes of business specified in Schedule 1, Part I to the Order.
+These classes, as the Court of Appeal pointed out in Phoenix General Insurance Co of Greece SA v Halvanon Insurance Co Ltd [1988] 1 QB 216, 262, define categories of regulated business by reference to the nature of the risk insured.
+They are derived by the Regulated Activities Order, with only insubstantial changes, from the previous United Kingdom statutory instruments giving effect to the First Non life Directive.
+In its unamended form, the First Directive was implemented by the Insurance Companies (Classes of General Business) Regulations 1977 SI 1977/1552, which were made under section 2 of the European Communities Act 1972.
+Class 18 was added by the Insurance Companies (Assistance) Regulations 1987 SI 1987/2130.
+In some cases, the classes were described in these instruments in terms lifted directly from the Annex to the Directive.
+In others, they were not.
+One of the classes which was not lifted directly from the Annex was Class 16 (Miscellaneous Financial Loss).
+In the form in which it appears in Schedule 1, Part I to the Regulated Activities Order, Class 16 is as follows: Miscellaneous financial loss 16.
+Contracts of insurance against any of the following risks, namely (a) risks of loss to the persons insured attributable to interruptions of the carrying on of business carried on by them or to reduction of the scope of business so carried on; (b) risks of loss to the persons insured attributable to their incurring unforeseen expense (other than loss such as is covered by contracts falling within paragraph 18); (c) risks which do not fall within sub paragraph (a) or (b) and which are not of a kind such that contracts of insurance against them fall within any other provision of this Schedule.
+This language was obviously thought to be at least as broad as the language of Class 16 in the Annex to the First Directive, but it is in fact derived from the definition of pecuniary loss insurance business in section 83(6) of the Insurance Companies Act 1974 as originally enacted.
+The same definition appeared before that in section 59(7) of the Companies Act 1967, which first brought pecuniary loss business within the scope of the pre Directive scheme of English statutory regulation.
+In both cases, the definition was relevant to the provisions relating to authorisation under the domestic statutory scheme which existed before the First Non life Directive was implemented.
+Warren J held that the extended warranty agreements which the appellants made in the course of their business fell within Class 16(b), or if not within sub paragraph (b) then within (c).
+His reason was as follows: 70.
+In my judgment, a contract for repair or replacement only in the event of breakdown or malfunction which does not oblige the insurer to indemnify the insured for costs which the insured himself incurs does fall within paragraph 16(b) of Schedule 1 (or if not within subparagraph (b), then within subparagraph (c)).
+I do not consider that there is any material distinction when it comes to determining whether a contract falls within paragraph 16 between a contract which provides only for repair or replacement and one which also provides an indemnity for costs actually incurred by the insured.
+In each case, the risk covered is essentially the same; it is the possibility of the equipment breaking down or malfunctioning.
+It is the cover, not the risk which is different in the two cases.
+If the equipment does break down or malfunction, then it is inevitable that the insured will need to incur cost if he is to have a set of working equipment: he will either have to pay for its repair or he will have to replace it.
+In my view, a contract which brings about the result which he would otherwise have to pay to achieve (ie having functioning equipment) can properly be categorised as a contract which protects him from financial loss.
+And this is so whether or not the insurer is obliged to pay the cost incurred by the insured if, in fact, the insured himself pays for the repair or replacement in the first instance.
+The contract which provides only for repair and replacement, and not for payment of any indemnity, therefore falls within paragraph 16(b).
+I agree with this analysis and cannot improve on it.
+The only contrary argument is that the schedule to the Order should be read subject to an implied exclusion of insurance providing for benefits in kind.
+This is certainly not the position at common law.
+A contract of insurance is a contract for the payment of a sum of money, or for some corresponding benefit: Prudential Insurance Co v Inland Revenue Commissioners [1904] 2 KB 658, 664 (Channell J); and see Department of Trade & Industry v St Christopher Motorists Association Ltd [1974] 1 WLR 99, 105 (Templeman J).
+The argument must therefore be (and is) that the common law on this point is displaced by the principle which requires an English court to construe its own legislation so as to conform to EU law.
+I am prepared to assume for this purpose (contrary to my instinctive view) that the First Non life Directive excludes insurance providing for benefits in kind, except in cases falling within Class 18.
+On that footing there is not one but two principles at issue, but neither of them applies.
+The first is the principle of conforming construction which requires English legislation to be construed as far as possible so as to conform with mandatory requirements of EU law: see Marleasing SA v La Comercial Internacional de Alimentacin SA (Case C 106/89) [1990] ECR I 4135.
+I have explained earlier in this judgment why in my view the only mandatory requirement of EU law is to regulate the 18 standard classes in accordance with the provisions of the First Non life Directive.
+There is no mandatory requirement to regulate any other insurance business.
+It follows that an English court must construe the 18 classes in the schedule to the Order so that it is no narrower than the corresponding classes in the Annex to the Directive.
+But on the footing that the United Kingdom is at liberty to impose an authorisation regime on further or wider classes of business not specified in the Directive, the question whether it has done so is a pure question of English law.
+This is not, however, the end of the matter, because the second principle which is arguably engaged is that where the language of an enactment is based on that of some other instrument with an established meaning, the latter is properly to be treated as part of the factual background against which the enactment is to be construed.
+This is a weaker principle than the first.
+It is also one which can have no application to this case, because the language used in Class 16 in the Schedule to the Order to describe miscellaneous financial loss insurance is derived, not from In my view the present appeal should be dismissed. the Annex to the Directive, but from the statutory definition of business covered by the previous, wholly domestic, scheme of statutory regulation dating back (in the relevant respects) to 1967.
+In those circumstances, the question whether the appellants business falls within Classes 8 or 9 of the Schedule to the Regulated Activities Order does not arise.
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+The Respondent, Haley Anne Preston (formerly Moore), a Minister in the Redruth Circuit of the Methodist Church until 2009, wishes to prosecute a claim against the Church in an employment tribunal for unfair dismissal.
+Under section 94 of the Employment Rights Act 1996, only an employee has the right not to be unfairly dismissed.
+Section 230 uncontroversially defines an employee as someone who has entered into or works under a contract of service or apprenticeship.
+The question at issue on this appeal is whether Ms Preston was an employee.
+The tribunal held that she was not.
+That decision was, however, reversed by the Employment Appeal Tribunal in a decision subsequently upheld by the Court of Appeal.
+The current state of the authorities
+Disputes about the employment status of ministers of religion have been coming before the courts ever since the introduction of national insurance in 1911 made it necessary to classify them for the first time.
+There is now a substantial body of authority on the point, much of it influenced by relatively inflexible tests borne of social instincts which came more readily to judges of an earlier generation than they do in the more secular and regulated context of today.
+Until recently, ministers of religion were generally held not to be employees.
+Two recurrent themes can be found in the case-law.
+The first is the distinction between an office and an employment.
+Broadly speaking, the difference is that an office is a position of a public nature, filled by successive incumbents, whose duties were defined not by agreement but by law or by the rules of the institution.
+A beneficed clergyman of the Church of England is, or was until recent measures modified the position, the paradigm case of a religious office-holder.
+But at an early stage curates in the Church of England were recognised as having the same status for this purpose: see In re Employment of Church of England Curates [1912] 2 Ch 563.
+The position of other ministers was taken to be analogous.
+In Scottish Insurance Commissioners v Church of Scotland (1914) SC 16, which concerned an assistant minister in the United Free Church of Scotland, Lord Kinnear said at 23 that the status of an assistant minister is not that of a person who undertakes work defined by contract but of a person who holds an ecclesiastical office, and who performs the duties of that office subject to the laws of the Church to which he belongs and not subject to the control and direction of any particular master.
+In Diocese of Southwark v Coker [1998] ICR 140, the Court of Appeal held that a stipendiary assistant curate was not an employee.
+They held that his duties were derived from his priestly status and not from any contract.
+Both Mummery LJ (at 147) and Staughton LJ (at 150) considered that there was a presumption that ministers of religion were office-holders who did not serve under a contract of employment.
+The second theme is a tendency to regard the spiritual nature of a minister of religions calling as making it unnecessary and inappropriate to characterise the relationship with the church as giving rise to legal relations at all.
+In Rogers v Booth [1937] 2 All ER 751, 754, Sir Wilfred Green MR, delivering the judgment of the Court of Appeal, held that membership of the Salvation Army gave rise to a relationship pre-eminently of a spiritual character which was not intended to give rise to legal relations.
+More recently, in Davies v Presbyterian Church of Wales [1986] 1 WLR 323, the House of Lords held that the mere fact that a relationship founded on the rules of a church was non-contractual did not mean that that there were no legally enforceable obligations at all.
+But they were inclined to find those obligations in the law of trusts, and adhered to the familiar distinction between an employment and a religious vocation.
+At p 329, Lord Templeman, with whom the rest of the committee agreed, said: My Lords, it is possible for a man to be employed as a servant or as an independent contractor to carry out duties which are exclusively spiritual.
+But in the present case the applicant cannot point to any contract between himself and the church.
+The book of rules does not contain terms of employment capable of being offered and accepted in the course of a religious ceremony.
+The duties owed by the pastor to the church are not contractual or enforceable.
+A pastor is called and accepts the call.
+He does not devote his working life but his whole life to the church and his religion.
+His duties are defined and his activities are dictated not by contract but by conscience.
+He is the servant of God.
+If his manner of serving God is not acceptable to the church, then his pastorate can be brought to an end by the church in accordance with the rules.
+The law will ensure that a pastor is not deprived of his salaried pastorate save in accordance with the provisions of the book of rules but an industrial tribunal cannot determine whether a reasonable church would sever the link between minister and congregation.
+The duties owed by the church to the pastor are not contractual.
+The law imposes on the church a duty not to deprive a pastor of his office which carries a stipend, save in accordance with the procedures set forth in the book of rules.
+President of the Methodist Conference v Parfitt [1984] QB 368 was a decision of the Court of Appeal on a claim for unfair dismissal by a Methodist minister.
+It is therefore directly in point on the present appeal.
+The Court held that the minister was not an employee, but the reasons of its members differed.
+Dillon LJ considered the spiritual character of the Methodist ministry to be fundamental to constitution and standing orders of the Methodist Church, but he reached the conclusion by an analysis of their terms.
+He does not appear to have been influenced by the distinction between an office and an employment, and regarded the earlier authorities as of no assistance.
+May LJ, on the other hand, adopted the analysis of the dissenting judgment of Waterhouse J in the Employment Appeal Tribunal, who had considered that the spiritual character was in itself inconsistent with the existence of a contractual relationship.
+Sir John Donaldson MR agreed with both judgments.
+The leading modern case in this area is the decision of the House of Lords in Percy v Board of National Mission of the Church of Scotland [2006] 2 AC 28.
+The Appellant was an associate minister in a parish of the Church of Scotland, who wished to bring a sex discrimination claim against the Church.
+It was accepted that she did not have a contract of service.
+But the statutory test of employment for the purposes of sex discrimination claims is broader than the test for unfair dismissal claims.
+Under the Sex Discrimination Act 1975, it extended to those who contract personally to execute any work or labour.
+Ms Percy claimed to come within that category.
+In spite of the difference between the tests for unfair dismissal and sex discrimination, the House took the opportunity to revisit both of the themes which had featured in the authorities to date on the question whether a minister was employed under a contract of service.
+The leading speech for the majority was delivered by Lord Nicholls, with whom Lord Scott and Baroness Hale agreed.
+Lord Nicholls regarded office- holding as an unsatisfactory criterion, at any rate on its own, for deciding whether a person was employed.
+The concept is clear enough but the boundaries are not, except in the case of holders of a small number of offices which have long been recognised as such by the common law, such as constables and beneficed clergymen of the Church of England.
+Moreover, offices and employments are not always mutually exclusive categories.
+A contract of employment is capable of subsisting side by side with many of the characteristics of an office.
+It followed that the classification of a ministers occupation as an office was no more than one factor in a judgment that depended on all the circumstances.
+Turning to the spiritual character of a ministers calling, Lord Nicholls recognised its relevance but pointed out that it could not be conclusive.
+At paras 23-25, he said: 23.
+There are indeed many arrangements or happenings in church matters where, viewed objectively on ordinary principles, the parties cannot be taken to have intended to enter into a legally-binding contract.
+The matters relied upon by Mr Parfitt in President of the Methodist Conference v Parfitt [1984] QB 368 are a good example of this.
+The nature of the lifelong relationship between the Methodist Church and a minister, the fact that he could not unilaterally resign from the ministry, the nature of his stipend, and so forth, all these matters made it impossible to suppose that any legally-binding contract came into being between a newly-ordained minister and the Methodist Church when he was received into full connection.
+Similarly with the Church's book of rules relied on by the Reverend Colin Davies in Davies v Presbyterian Church of Wales [1986] I WLR 323.
+Then the rebuttable presumption enunciated by the Lord President in the present case, following Mummery LJ's statements of principle in Diocese of Southwark v Coker [1998] ICR 140, 147, may have a place.
+Without more, the nature of the mutual obligations, their breadth and looseness, and the circumstances in which they were undertaken, point away from a legally-binding relationship.
+24.
+But this principle should not be carried too far.
+It cannot be carried into arrangements which on their face are to be expected to give rise to legally-binding obligations.
+The offer and acceptance of a church post for a specific period, with specific provision for the appointee's duties and remuneration and travelling expenses and holidays and accommodation, seems to me to fall firmly within this latter category.
+25.
+Further, in this regard there seems to be no cogent reason today to draw a distinction between a post whose duties are primarily religious and a post within the church where this is not so.
+In President of the Methodist Conference v Parfitt [1984] QB 368, 376, Dillon LJ noted that a binding contract of service can be made between a minister and his church.
+This was echoed by Lord Templeman in your Lordships' House in Davies v Presbyterian Church of Wales [1986] I WLR 323, 329.
+Lord Templeman said it is possible for a man to be employed as a servant or as an independent contractor to carry out duties which are exclusively spiritual.
+26 The context in which these issues normally arise today is statutory protection for employees.
+Given this context, in my view it is time to recognise that employment arrangements between a church and its ministers should not lightly be taken as intended to have no legal effect and, in consequence, its ministers denied this protection.
+Applying these principles to Ms Percys case, Lord Nicholls had no difficulty in finding that she had contracted personally to execute any work or labour.
+This was because of the manner in which she had been engaged.
+The relevant committee of the Church of Scotland had invited applications, referring to the duties, the terms of service and the remuneration associated with the job.
+Ms Percy had responded, was offered the job and sent a full copy of the terms.
+She replied formally accepting it.
+These circumstances suggested a contractual relationship, and nothing in the terms was inconsistent with that.
+Lord Hope, in a concurring judgment, reached the same conclusion, pointing out that the manner of appointment of an associate minister was significantly different from the induction of a minister to a charge.
+He considered that if the relationship was contractual at all, the contract was one which engaged the anti-discrimination provisions of the statute.
+He accepted that Ms Percy was appointed to an office.
+But, like Lord Nicholls, he thought that there was no reason why the duties of that office should not be performed under a contract.
+The circumstances in which Ms Percy was engaged showed that this was what the parties had intended in her case.
+It is clear from the judgments of the majority in Percy that the question whether a minister of religion serves under a contract of employment can no longer be answered simply by classifying the ministers occupation by type: office or employment, spiritual or secular.
+Nor, in the generality of cases, can it be answered by reference to any presumption against the contractual character of the service of ministers of religion generally: see, in particular, Baroness Hale at para 151.
+The primary considerations are the manner in which the minister was engaged, and the character of the rules or terms governing his or her service.
+But, as with all exercises in contractual construction, these documents and any other admissible evidence on the parties intentions fall to be construed against their factual background.
+Part of that background is the fundamentally spiritual purpose of the functions of a minister of religion.
+The constitution and standing orders of the Methodist Church
+Methodist ministers have no written contract of employment.
+Their relationship with the Church is governed by its constitution, which is contained in the Deed of Union, by the standing orders of the Methodist Conference, and by such specific arrangements (if any) as may have been made with a particular minister.
+It is convenient to deal first with the position of the Methodist ministry generally, before examining any special arrangements with Ms Preston.
+Ms Rose QC, who appeared for the President of the Methodist Conference, invited us to approach these instruments on the footing that in the absence of anything in them amounting to an express contract of employment, it was necessary to imply one.
+For this purpose, she submitted, the test was one of necessity.
+If the essential features of the arrangements described in the Deed of Union and the standing orders were capable of being explained without reference to an employment relationship, then no such relationship should be held to exist.
+I reject this submission for three reasons.
+In the first place, in modern conditions, against the background of the broad schemes of statutory protection of employees, it should not readily be assumed that those who are engaged to perform work and receive remuneration intend to forgo the benefits of that protection, even where the work is of a spiritual character.
+Secondly, as Lord Hope pointed out in Percy, at para 107 the practical effect of the suggested approach is to reintroduce the presumption of non-contractual status in the case of ministers of religion, which he, along with the majority in that case rejected in principle.
+Third, whatever the legal classification of a Methodist ministers relationship with his Church, it is not sensible to regard it as implied.
+It is documented in great detail in the Deed of Union and the standing orders.
+The question is whether the incidents of the relationship described in those documents, properly analysed, are characteristic of a contract and, if so, whether it is a contract of employment.
+Necessity does not come into it.
+The Deed of Union, in its original form, was agreed in 1932 when the Wesleyan Methodist Church united with the Primitive Methodist Church and the United Methodist Church and other Methodist denominations to form the Methodist Church of Great Britain.
+The governing body of the Church is the Conference, which meets annually and transacts business in two sessions, the Representative Session and the Ministerial Session.
+The Representative Session comprises designated office-holders and representatives.
+The Ministerial Session comprises those members of the Representative Session who are ministers, together with certain other categories of ministers.
+The senior officer of the Church is the President of the Conference, who is designated as such by a vote of the previous Conference.
+Detailed provision is made for every aspect of the government of the Church by standing orders made by the Conference.
+For the purposes of its ministry, the Church is divided into geographical circuits, each of which is governed by its Circuit Meeting, Circuit Stewards, and committees appointed for special purposes.
+The Church adheres to the doctrine of the priesthood of all believers.
+Section 2, clause 4 of the Deed of Union records, Christs ministers in the church are stewards in the household of God and shepherds of his flock.
+Some are called and ordained to this sole occupation and have a principal and directing part in these great duties but they hold no priesthood differing in kind from that which is common to all the Lords people and they have no exclusive title to the preaching of the gospel or the care of souls.
+Section 7, clause 23(h) of the Deed of Union provides that to become a minister a candidate must first obtain the judgment of the Ministerial Session that he or she is fit to be admitted into full connexion and ordination.
+The Representative Session must then resolve that he or she is to be admitted and ordained.
+The candidate is then ordained by laying on of hands.
+Standing order 700(2) provides that [b]y receiving persons into full connexion as Methodist ministers the Conference enters into a covenant relationship with them in which they are held accountable by the Church in respect of their ministry and Christian discipleship, and are accounted for by the Church in respect of their deployment and the support they require for their ministry.
+Standing order 740(1)(a) provides that [i]n this relationship they accept a common discipline of stationing and collegially exercise pastoral responsibility for the Church.
+Stationing is a critical part of the management of the Church.
+It is the formal act by which a minister is assigned to particular duties.
+Section 20 of the Deed of Union requires the Conference annually to station ministers and probationers, although by section 29 they may be stationed between Conferences by the current President of the Conference.
+The standing orders make detailed provision for the process by which a minister is stationed.
+The first stage is an invitation from a Circuit, which is issued by the Circuit Invitation Committee, on the proposal of the Stewards: see standing order 540.
+The next stage is that current invitations issued by the Circuits are reported to the Stationing Committee of the Conference under standing order 782 once a year by an appointed date.
+This body then makes recommendations to the Representative Session of the next Conference.
+It is the Conference which makes the final decision: see standing order 322.
+Standing order 700(1) provides that [m]inisters are ordained to a life-long presbyteral ministry of word, sacrament and pastoral responsibility in the Church of God which they fulfil in various capacities and to a varying extent throughout their lives.
+It is clear that the life-long character of the ministry is more than just an aspiration.
+A minister can cease to be in full connexion only in limited circumstances, none of which is wholly dependent on his or her wishes.
+Under standing order 760, he or she may send a notice of resignation to the President of the Conference, but it is up to the President, advised by a special committee, to decide whether to accept it.
+Otherwise, a minister may cease to be in full connexion if a disciplinary charge is brought and a Disciplinary Committee exercises its power under standing order 1134 to decide that he or she shall cease to be a minister... in full connexion.
+It should be noted that the disciplinary scheme is the same for ministers and lay members, so far as the distinction is meaningful in a church in which the ministry is not a distinct order or class.
+Standing order 1100(3)(ii) provides that there should be no difference in principle between ordained and lay people in the way in which complaints against them are dealt with.
+For as long as a minister remains in full connexion he or she must be stationed, save in two cases.
+The first is that one of the exceptions in standing order 774 applies, i.e. the minister receives a discretionary exemption from the Ministerial Session of the Conference, or is required to be without appointment by the Stationing Committee on the ground that no appointment can be found.
+The second is that they are permitted by the Ministerial Session of the Conference to become supernumeraries (i.e. retire) under standing order 790 on account of their age, length of service or ill-health or on compassionate grounds.
+Retirement is, however, a relative term.
+Even supernumerary ministers are required under standing order 792 to continue to exercise their ministry as he or she is able.
+All ministers in full connexion who are not permitted to be without appointment under one of these provisions, are defined by section 1 of the Deed of Union as being in the active work.
+Section 80 of the standing orders provides for the support and maintenance of ministers.
+Under standing order 801, all ministers in active work and all stationed probationers are entitled to a stipend throughout their ministry, including periods of unlimited duration when they may be unable to perform their duties on account of illness or injury.
+In addition, they are entitled under standing order 803 to a manse to serve as a home and as a base for their ministry.
+Neither the stipend nor the manse are regarded by the Methodist Church as the consideration for the services of its ministers.
+They regard them as a method of providing the material support to the minister without which he or she could not serve God.
+In the Churchs view, the sale of a ministers services in a labour market would be objectionable, as being incompatible with the spiritual character of their ministry.
+If the arrangements governing the ministry described in the Deed of Union and the standing orders are a contract between the minister in that capacity and the Methodist Church, then it seems to me inevitable that they must be classified as a contract of employment.
+But that only increases the difficulty of regarding them as a contract at all.
+Three points seem to me to be cumulatively decisive.
+First, the manner in which a minister is engaged is incapable of being analysed in terms of contractual formation.
+Neither the admission of a minister to full connexion nor his or her ordination are themselves contracts.
+Thereafter, the ministers duties are not consensual.
+They depend on the unilateral decisions of the Conference.
+Secondly, the stipend and the manse are due to the minister by virtue only of his or her admission into full connexion and ordination.
+While he or she remains in full connexion and in the active life, these benefits continue even in the event of sickness or injury, unless he or she is given leave of absence or retires.
+In addition to the stipend and the manse, the minister has certain procedural rights derived from the disciplinary scheme of the Deed of Union and the standing orders, which determine the manner in which he or she may be suspended or removed from ministerial duties.
+But the disciplinary scheme is the same for all members of the Church whether they are ministers or ordinary lay members.
+Third, the relationship between the minister and the Church is not terminable except by the decision of the Conference or its Stationing Committee or a disciplinary committee.
+There is no unilateral right to resign, even on notice.
+I conclude that the ministry described in these instruments is a vocation, by which candidates submit themselves to the discipline of the Church for life.
+Unless some special arrangement is made with a particular minister, the rights and duties of ministers arise, as it seems to me, entirely from their status in the constitution of the Church and not from any contract.
+Ms Prestons ministry
+Conscious of the difficulties posed by the Deed of Union and the standing orders, Mr Bowers QC (who appeared for Ms Preston) founded his case mainly on the particular circumstances in which his client came to be stationed at the Redruth Circuit.
+These, he suggested, did amount to a special arrangement with his client, analogous to the one which was held to be contractual by the majority in Percy.
+The facts are that Ms Preston was initially stationed by the Conference as a probationer minister in Taunton Circuit in September 2001.
+She was admitted to full connexion by the 2003 Conference and thereupon ordained.
+She was then stationed as a full minister by the same Conference at the Taunton Circuit where she had been working as a probationer for the past two years.
+In November 2005, she was invited by the Invitation Committee of the Redruth Circuit to become a Superintendent Minister there.
+A Superintendent Minister is the senior minister of a circuit with a number of other ministers.
+The Redruth Circuit Steward wrote to her on 19 November 2005 confirming the invitation in the following terms: Following our telephone conversation last Monday, I can confirm the invitation made by the Redruth Methodist Circuit to offer you the position of Superintendent Minister commencing September 2006 for a period of five years.
+On 22 November, Ms Preston replied: Many thanks for your letter officially inviting me to serve as Superintendant Minister in the Redruth Circuit from September 2006.
+I write to confirm my acceptance of the invitation and express my thanks to the invitation committee.
+In other contexts, an exchange of letters like this one might well have given rise to a contract.
+The difficulty here is that the exchange occurred within the framework of the standing orders, from which it is clear that it was only part of a much longer procedure.
+Under the standing orders, the circuits have no power to make an appointment.
+The circuits invitation is no more than a proposal to the Conference Stationing Committee that they should recommend the candidate to the Conference for stationing in their circuit.
+While every effort is made to meet the preferences of both circuits and ministers, the decision is reserved to the Conference.
+It may be delegated only to the President of the Conference, and then only if the appointment has to be made between Conferences.
+The relevant relationship is between the minister and the Conference, which may move him or her from one circuit to another even before the end of the period for which the circuit invited the candidate to serve.
+There is no fresh relationship with each invitation or even with each appointment.
+It follows that Ms Preston was serving as a minister at Redruth not pursuant to the five-year relationship envisaged in the exchange of letters, but pursuant to the life-long relationship into which she had already entered two years before the exchange of letters, when she was ordained.
+The nature of that relationship was wholly dependent on the Deed of Union and standing orders under which she took that step.
+It makes no difference to this analysis that Ms Preston was appointed as a Superintendant Minister at Redruth.
+That was simply the role for which she was stationed by the Conference.
+The decisions of the Employment Appeal Tribunal and the Court of Appeal
+The Employment Appeal Tribunal and the Court of Appeal considered that Ms Preston was an employee, essentially because a Methodist minister served under arrangements of a kind which, in the words of Lord Nicholls in Percy, at para 24, on their face are to be expected to give rise to legally binding obligations.
+This was because they provided for the ministers duties, remuneration, accommodation, and the like.
+It is somewhat unclear at what stage and by virtue of what acts the parties entered into the contract of employment which they discerned.
+The Employment Appeal Tribunal appears to have thought that the contract was made by the offer and acceptance of a Church post for a specified period when Ms Preston was invited to serve in the Redruth Circuit: [2011] ICR 819.
+The Court of Appeal endorsed their conclusion generally, without giving specific attention to this aspect of the matter: [2012] QB 735.
+This conclusion gives rise to three principal difficulties.
+First, if it is correct, it would mean that almost any arrangements for the service of a minister of religion would be contractual unless the minister was a non-stipendiary volunteer.
+Secondly, the analysis which makes the circuits invitation and its acceptance into a contract is not consistent with the function of the invitation under the standing orders.
+The difficulty of identifying any acts by which the contract can be said to have been made is symptomatic of a broader problem of fitting the supposed contract within the scheme of the Churchs constitution, which the courts below have not really addressed.
+Third, and fundamentally, the conclusion of the courts below brought them up against the difficulty that Lord Nicholls, at para 23, apparently endorsed the decision in Parfitt, in which the facts were indistinguishable from those of the present case and the terms of the Deed of Union and standing orders were in all relevant respects the same.
+They surmounted this difficulty by subjecting the speeches to a minute analysis, what Maurice Kay LJ in the Court of Appeal called the fine toothcomb treatment.
+From this, they concluded that Lord Nicholls observations about Parfitt were inconsistent with his own test and with the speeches of those who agreed with him, and might therefore properly be disregarded.
+Underhill J, delivering the judgment of the Employment Appeal Tribunal, thought that he might have been describing only the historic position, but acknowledged that that is not what he appeared to be saying.
+In my view both courts below over-analysed the decision in Percy, and paid insufficient attention to the Deed of Union and the standing orders which were the foundation of Ms Prestons relationship with the Methodist Church.
+The question whether an arrangement is a legally binding contract depends on the intentions of the parties.
+The mere fact that the arrangement includes the payment of a stipend, the provision of accommodation and recognised duties to be performed by the minister, does not without more resolve the issue.
+The question is whether the parties intended these benefits and burdens of the ministry to be the subject of a legally binding agreement between them.
+The decision in Percy is authority for the proposition that the spiritual character of the ministry did not give rise to a presumption against the contractual intention.
+But the majority did not suggest that the spiritual character of the ministry was irrelevant.
+It was a significant part of the background against which the overt arrangements governing the service of ministers must be interpreted.
+Nor did they suggest that the only material which might be relevant for deciding whether the arrangements were contractual were the statements marking the ministers engagement, although it so happened that there was no other significant material in Ms Percys case.
+Part of the vice of the earlier authorities was that many of them proceeded by way of abstract categorisation of ministers of religion generally.
+The correct approach is to examine the rules and practices of the particular church and any special arrangements made with the particular minister.
+What Lord Nicholls was saying was that the arrangements, properly examined, might well prove to be inconsistent with contractual intention, even though there was no presumption to that effect.
+He cited the arrangements governing the service of Methodist ministers considered in Parfitt as an example of this, mainly for the reasons given in that case by Dillon LJ.
+These were, essentially, the lifelong commitment of the minister, the exclusion of any right of unilateral resignation and the characterisation of the stipend as maintenance and support.
+There is nothing inconsistent between his view on these points and the more general statements of principle appearing in his speech and in the speeches of those who agreed with him.
+Conclusion
+I would allow the appeal and restore the order of the Employment Tribunal dismissing Ms Prestons claim.
+Careful written arguments were presented to us on the question whether, and if so on what basis, a minister could enforce a claim to a stipend and to the occupation of a manse in the absence of a contract.
+I am inclined to think, with Lord Templeman in Davies v Presbyterian Church of Wales [1986] 1 WLR 328, that the answer to that question is that these benefits are enforceable as part of the trusts of the Churchs property, but I should prefer to leave that question to a case in which it arises and in which fuller material is available for resolving it.
+For the reasons given by Lord Sumption, I too would allow the appeal and restore the order of the Employment Tribunal.
+We were urged by the respondent to recognise the true nature of her relationship with the Church in the modern sense indicated by Lord Nicholls in Percy v Board of National Mission of the Church of Scotland [2006] 2 AC 28, paras 25 and 26.
+I have no difficulty with that proposition so far as it goes, or with the points that Lady Hale makes that we can approach the issue with an open mind and without the distractions of a presumption either one way or the other: see paras 35 and 45.
+Although section 2, clause 4 of the Deed of Union declares that Christs ministers in the Church are stewards in the household of God and shepherd of his flock and the standing orders build on that principle, this does not mean that they cannot be in the employment of those who decide how their ministry should be put to the service of the church: Baroness Hale of Richmond in Percy, para 146.
+But it does not solve the problem which the respondent faces in this case, due to the fact that she did not have the benefit of an express contract of employment with the Church, whether written or oral, and to the absence of clear grounds for holding that a contract of employment can be implied.
+Much of the argument in Percy was directed to the question whether the matters which Ms Percy wished to raise were matters spiritual within the meaning of section 3 and Article IV of the Declaratory Articles annexed to the Church of Scotland Act 1921.
+Section 3 provides that nothing in that Act shall affect or prejudice the jurisdiction of the civil courts in relation to a matter of a civil nature.
+But the effect of Article IV is that the civil authority has no right of interference in the proceedings and judgments of the Church in the sphere of its spiritual government and jurisdiction.
+So it was necessary for the appellate committee to satisfy itself that the exercise of the exclusive jurisdiction of the Church in spiritual matters did not extend to the question whether Ms Percys relationship with the Church was one of employment for the purposes of the Sex Discrimination Act 1975.
+The Church accepted the principle of equal treatment, but claimed exclusive jurisdiction to deal with Ms Percys claim that she had been wronged by the Churchs failure to apply that principle to her.
+Her claim failed in the Court of Session on the ground that her agreement with the Board was for her to perform duties which were, in their very essence, spiritual: 2001 SC 757, para 11, per Lord President Rodger.
+In para 14 he said that the formality of the documents did not disclose an intention to create relationships under the civil law.
+Rather, it reflected the serious way in which the Church regulated matters falling within the spiritual sphere.
+But, as Lord Nicholls explained, by any ordinary understanding of the expression matters spiritual, if the Church authorities enter into a contract of employment with one of its ministers, the exercise of statutory rights attached to the contract would not be regarded as a spiritual matter: [2006] 2 AC 28, para 40; see also paras 132, 133.
+So the exercise of the exclusive jurisdiction of the Church in spiritual matters did not extend to a claim by persons employed within the meaning of section 82(1) of the 1975 Act that they had been unlawfully discriminated against.
+The spiritual character of Ms Percys ministry was, therefore, part of the background to her case.
+But, once it had been decided that the question was a civil and not a spiritual matter, the question was simply whether the employment arrangements which plainly existed between Ms Percy and the Board were intended to have legal effect so that it could be held that a contract existed.
+The spiritual background had no part to play in that assessment.
+As Lord Nicholls said in para 25, there seemed to be no cogent reason for drawing a distinction between a post whose duties were primarily religious and a post within the church that was not so.
+In this case, however, the question is whether there were any arrangements of an employment nature at all.
+One cannot simply ignore the Churchs doctrinal reasons for regarding such arrangements as unnecessary.
+On the contrary, they provide an essential part of the factual background.
+They explain why the situation in which the respondent found herself was as it was.
+In finding that there was no contract, the court is not ignoring the modern approach to these matters.
+What it cannot ignore is the fact that, because of the way the Church organises its own affairs, the basis for the respondents rights and duties is to be found in the constitutional provisions of the Church and not in any arrangement of the kind that could be said to amount to a contract.
+The issue in this case concerns the essential character of the relationship between a Minister in full connexion with the Methodist Church who holds a particular appointment within the Church and the governing body of the Church.
+Is it a relationship which gives rise to legal rights and duties on both sides? If so, what are those rights and duties? And are they to be characterised as a contract of employment? If they are, it is not possible to contract out of the rights conferred by the Employment Rights Act 1996: section 203.
+Just as there is nothing in the relevant documentation which says that the relationship in this case was a contract of employment, there is nothing which says that it is not.
+We can approach the issue with an open mind.
+Until the decision of the House of Lords Percy v Board of National Mission of the Church of Scotland [2005] UKHL 73, [2006] 2 AC 28, such questions were clouded by two matters.
+The first was an assumption that because a minister is called upon to serve her God in a particular way, there cannot be a contract between the minister and her Church.
+But the relationship between a minister of religion and her Church, which is a temporal one, is not to be confused with the relationship between a minister of religion and her God, which is a spiritual one.
+As Ms Rose QC on behalf of the Methodist Church properly accepts, there is nothing intrinsic to religious ministry which is inconsistent with there being a contract between the minister and the Church.
+It is normal for rabbis to be employed by a particular synagogue, for example.
+Priests appointed in the Church of England are now engaged on terms which expressly provide that they have the right to complain of unfair dismissal to an employment tribunal (and existing holders of a benefice may opt in to the new arrangements should they so wish).
+Now that this assumption has been cleared out of the way, we can get down to the real task of analysing the relationship, although of course the spiritual nature of some (but by no means all) of the duties involved is an important part of the context.
+The other matter which has clouded the question is that many of the posts held by ministers of religion may be characterised as offices, in the sense that the post has a permanent existence irrespective of whether there is currently an incumbent.
+It was for a long time the law that people who held offices in the service of the Crown did not have contracts of employment.
+This still applies to police officers, but it no longer applies to the generality of civil servants.
+But outside the service of the Crown, it has always been possible for a person to be both an office holder and an employee.
+Managing directors are the most obvious example.
+Another is University teachers, who may hold the office of (say) Professor at the same time as having a contract of employment: see Thomas v University of Bradford [1987] AC 795.
+Universities have a good deal in common with organised religion, being charitable bodies with a written constitution, consisting of a foundational document, the Charter, together with the Ordinances, Statutes and Regulations made under it.
+These have typically given rights to both staff and students, rights which were traditionally superior to those given them by the common law.
+The constitutional documents of the Methodist Church bear a strong resemblance to such documents.
+The Methodist Church as we know it today was formed from the union of the Wesleyan Methodist Church, the Primitive Methodist Church and the United Methodist Church, under a deed of union (DU) executed on 20 September 1932 pursuant to the Methodist Church Union Act 1929, which was repealed and replaced by the Methodist Church Act 1976.
+The Constitutional Practice of the Church is governed by the 1976 Act and some other local Acts dealing with aspects of the administration of the Church, the Deed of Union as from time to time amended by the Methodist Conference, which is the governing body of the Church, and the Standing Orders (SO) made under clause 19 of the Deed of Union.
+It is these documents, coupled with any correspondence between individuals in pursuance of them, which tell us whether there is a contract between a Minister and the Church and if so, what sort of a contract it is.
+The Church holds the doctrine of the priesthood of all believers, so Ministers are not a class apart from any other member of the Church; rather, they are people who hold special qualifications for the discharge of special duties (DU, clause 4).
+Candidates who are chosen and trained for the Ministry are admitted to full connexion with the Church in the representative session of the Methodist Conference, provided that the ministerial session judges that they are fit for admission and ordination (DU, clause 23(h)).
+If not already ordained, they shall be ordained by the laying on of hands at a service held during the same meeting (SO, 728(6)).
+They are ordained to a life-long presbyteral ministry of word, sacrament and pastoral responsibility . .
+.
+which they fulfil in various capacities throughout their lives (SO, 700(1)).
+By receiving persons into full connexion as Methodist ministers the Conference enters into a covenant relationship with them in which they are held accountable by the Church in respect of their ministry and Christian discipleship, and are accounted for by the Church in respect of their deployment and the support they require for their ministry (SO, 700(2)).
+They accept a common discipline of stationing (SO, 740(1)), and most have a responsibility to engage in reflective learning and development (SO, 743), and in further study, training and professional development (SO, 745).
+Most ministers are in active work but some are not.
+Those who are not may be temporarily released to go abroad (SO, 700(4), or be supernumerary (basically, those retired from active work) or without appointment (basically, those for whom no suitable station can be found), but they are expected to continue to exercise their ministry as far as they are able (SO, 700(5)).
+By seeking permission to become a supernumerary, a minister thereby requests an alteration in the terms and conditions of his or her service (SO, 791).
+Ministers in active work exercise their ministry primarily where they are stationed (SO, 700(3)).
+Stationing is a crucial part of the relationship between the Church and those in active work.
+The Conference shall annually station as ministers, deacons and probationers such persons as it thinks fit (DU, clause 20).
+There are several different types of station, but the principal station is in a Circuit appointment in a home District (SO, 780(1)(i)).
+If a Circuit needs a minister, the Circuit authorities will follow the Guidance on how to go about issuing an invitation to a particular person (SO, 541), who may indicate her willingness to accept it (Guidance on the Stationing of Ministers and Deacons, D(4)).
+The initial invitation is for a period of five years (SO, 543).
+The invitation is then forwarded to the Stationing Committee of Conference.
+Nothing in the Standing Orders about Circuit invitations detracts from the ultimate authority of Conference over appointments annually (SO, 549).
+The Stationing Committee gathers the information about the ministers seeking a station and the Circuit or other bodies seeking to make appointments, matches them and prepares a draft list of proposed stations which is then submitted to Conference (SO, 782).
+There is scope for amendment, but eventually a list is adopted by Conference.
+Ministers who are moving to a new appointment are expected to move in the first week in August and to take up their duties on 1st September (SO, 785).
+Part 8 of the Standing Orders is headed Terms of Service.
+These deal with the right to a stipend (SO, 801), the right of a Circuit minister to be provided with a manse as a base for the work of ministry as well as a home (SO, 803), membership of the pension scheme (SO, 805), parenthood (SO, 806), including antenatal care, maternity, paternity, adoption and parental leave (SO, 807 to 807D).
+There is a Connexional Allowances Committee which annually recommends stipends to Conference.
+There is a standard stipend and allowances for extra responsibilities, including those of a superintendent minister.
+Part 11 of the Standing Orders deals with complaints and discipline.
+It does apply to all members of the Church but it also deals with a wide range of complaints, only some of which will involve charges.
+There is a special procedure for charges of serious breaches of Church discipline, which could result in the removal of a minister from full connexion (SO, section 113).
+The complaints team is expected to assess whether a complaint should be dealt with under a different process (SO, 1123(5)).
+This includes the process for Circuits to decide that the appointment of a minister should be curtailed, which is the more appropriate process where a Circuit and a minister are at odds with one another but there has been no serious breach of church discipline (SO, 544).
+It also includes requesting the President to inquire into a relevant Circuit (SO, 1123(6)), which is what seems to have happened in this case.
+Now that we are able to concentrate on the details of the relationship, without the distractions of a presumption against legal relations or the characteristics of an office, several things become clear.
+The first is that it would be very odd indeed if a minister who was not paid her stipend or was threatened with summary eviction from her manse could not rely upon the terms of her appointment either to enforce the payment or to resist a possession action.
+Some time was devoted at the hearing to discussing what legal redress would be available to her if she could not rely upon the terms of a contract.
+The suggestion was that she would be a beneficiary under the trusts upon which the Church holds its property.
+The trouble with this is that the Church holds property under any number of different trusts, whereas the stipend is paid centrally even if the funds with which to pay it are raised locally.
+The body which controls her and is responsible for her remuneration and accommodation is Conference.
+The second is that a distinction has to be drawn between being a minister being in full connexion with the Methodist Church - and having a particular station or appointment within it.
+That distinction was not as fully explored in the courts below as it was with us.
+But once it is, in my view the position becomes clear.
+Admission to full connexion brings with it a life-long commitment to the Church and its ministry.
+Quite apart from the individual covenant which every member makes with her Church and with her God, the Methodist Church is an evangelical Church (DU, clause 4).
+That is why retired ministers are still expected to do what they can to further the work of the Church and no person in full connexion can give up her commitment to do this without its permission..
+But that can be contrasted with the particular posts to which a minister is assigned.
+There is a process of assignment which begins with the invitation and acceptance at Circuit level (and no doubt something similar for other stations), continues into the matching process at Stationing Committee level, and is confirmed by Conference (although nominally an annual process, this is clearly a rubber stamp during the expected five years of a particular Circuit appointment).
+The assignment is to a particular post, with a particular set of duties and expectations, a particular manse and a stipend which depends (at the very least) on the level of responsibility entailed, and for a defined period of time.
+In any other context, that would involve a contract of employment in that post.
+The spiritual nature of some of the duties entailed does not necessarily entail a different conclusion.
+There is a spiritual component on each side of this covenant relationship.
+The main factor which tells against there being a contract between the minister and the Church in relation to the particular station to which the minister is assigned is that the minister has no choice.
+She must go where Conference stations her.
+The reality is almost certainly completely different (although we do not have much evidence about this): ministers do have to go where they are put, but it would be a very foolish Stationing Committee which assigned a minister to a station where she was not willing to serve.
+The assignment would not be specifically enforceable.
+But I do not think that a prior commitment to go where you are sent negates a mutual contractual relationship when you are sent and agree to go to a particular place.
+Yet this is the main reason for denying a contractual relationship in this case.
+Everything about this arrangement looks contractual, as did everything about the relationship in the Percy case.
+It was a very specific arrangement for a particular post, at a particular time, with a particular manse and a particular stipend, and with a particular set of responsibilities.
+It was an arrangement negotiated at local level but made at national level.
+The Church may well have had good reasons to be troubled about the respondents performance.
+But the allegation is that, instead of addressing those directly, they reorganised the Circuits so as, in effect, to make any investigation of whether or not those complaints were justified unnecessary, thus depriving the respondent of her post by organising it out of existence, without any of the safeguards to which she would otherwise have been entitled.
+In my view, the EAT and the Court of Appeal reached the right result in this case and I would dismiss this appeal.
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+The issue in this appeal is: what are the statutory consequences if the fingerprints of a defendant have been taken in a police station in Northern Ireland by an electronic device for which the legislation required approval from the Secretary of State, when such approval has never been given? In particular, is any evidence which makes use of the control fingerprints thus taken inadmissible in any subsequent court proceedings?
+Article 61 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (the Northern Ireland Order) sets out the powers of the police to take fingerprints without consent.
+Similar (but not in every respect identical) provision is made for England and Wales by section 61 of the Police and Criminal Evidence Act 1984.
+These powers are exhaustively defined; otherwise prints may only be taken with consent see article 61(1) and, in England and Wales, section 61(1).
+The cases where prints may be taken without consent have been varied a little from time to time and do not need to be set out seriatim here.
+One of the principal cases, however, was and is where a person is in police detention having either been arrested for a reportable offence, or charged with, or informed that he will be reported for, such.
+Another is where he has been convicted of such an offence.
+Generally, fingerprints may be taken once only in the course of any single investigation, although there are now provisions permitting replacement prints to be required if the first ones were of insufficient quality to allow satisfactory analysis, comparison or matching.
+Between 1 March 2007 and 12 January 2010 article 61(8B) of the Northern Ireland Order provided: Where a persons fingerprints are taken electronically, they must be taken only in such manner, and using such devices, as the Secretary of State has approved for the purposes of electronic fingerprinting.
+That provision matched an intended section 61(8A) of the Police and Criminal Evidence Act 1984, which latter provision was inserted into the 1984 Act by the Criminal Justice and Police Act 2001 but was never brought into force.
+Both article 61(8B) and section 61(8A) were later repealed as redundant by section 112 and schedule 8 of the Policing and Crime Act 2009, with effect from 12 January 2010, and with that repeal there disappeared from England and Wales and from Northern Ireland all requirement for statutory approval of fingerprinting devices.
+However, although the requirement for approval existed in Northern Ireland (but not in England and Wales) from 1 March 2007, such approval was, by oversight, not given to any device until it was belatedly provided on 29 March 2009 after the omission had been noticed.
+It follows that for the two years from March 2007 to March 2009 article 61(8B) was in force but no device had been approved as contemplated by it.
+The two appellants were defendants charged with theft in Northern Ireland.
+The offence was alleged to have taken place on 6 October 2007, during the two year period mentioned.
+A stack of building materials had been found removed from the owners depot and placed apparently ready for collection by the thieves.
+The appellants were found nearby in a van but said that they were there innocently and had not been near the stolen materials.
+Their fingerprints were taken when they were detained in the police station after their arrest.
+A fingerprint matching Elliotts left thumb was found on the packaging of the stolen materials.
+The match of fingerprints was relied upon by the Crown and proved in the magistrates court.
+The defendants were convicted.
+The device used in the police station to collect the control sample of the fingerprints of each appellant was a combination of camera, scanner and computer, known as Livescan.
+No one noticed that no type approval had been given for its use as required by article 61(8B).
+When this was appreciated, the appellants appealed to the County Court, where the appeal proceeded by way of fresh hearing ab initio.
+The preliminary point was taken that the evidence of comparison was inadmissible because of the absence of approval.
+That argument succeeded before the County Court judge but on further appeal by the Crown, by way of case stated, the Court of Appeal ruled against it.
+The Livescan process was and is generally used by the police throughout Northern Ireland, as well as throughout England and Wales and Scotland and, indeed, worldwide.
+It has very largely superseded the traditional process of ink pad and paper.
+It is possible to have mobile devices as well as those located in police stations.
+Both are linked directly to computerised storage and searching equipment located centrally.
+Amongst the advantages is the ease of electronic transmission, storage and sorting of the prints taken.
+One aspect of that is that a set of fingerprints given at a scene or in the street can now often almost instantaneously verify or refute the identity of the person tested.
+Another is that international exchange of data is made much easier.
+Livescan devices were in general use in Northern Ireland from 2006 and throughout the two year period 2007 2009 when type approval was required by article 61(8B).
+For the appellants, the first and principal submission of Mr McMahon QC is
+that the language of article 61(8B) unequivocally renders a nullity any fingerprints taken by a device which has not been approved.
+Therefore, no legal use can be made of them.
+For this reason, there is, he submits, no occasion to investigate what consequences Parliament must have intended should follow from a failure to use an approved device.
+That would be necessary only if there were an ambiguity in the wording.
+There is none, and it necessarily follows that the product of an unapproved fingerprinting process is inadmissible.
+Any other conclusion would, he submits, leave article 61(8B) a dead letter.
+The difficulty with this attractively simple submission is that the statute says nothing at all about the consequences of failure to use an approved device.
+There is ample precedent for such a statutory provision to be accompanied by an express provision that evidence shall only be admissible if obtained in accordance with it.
+An example is afforded by the statutory rules relating to evidence of speed provided by speed guns.
+Section 20 of the Road Traffic Offenders Act 1988 provides, for England and Wales: (1) Evidenceof a fact relevant to proceedings for an offence to which this section applies may be given by the production of a record produced by a prescribed device, and (a) (b) (4) A record produced or measurement made by a prescribed device shall not be admissible as evidence of a fact relevant to proceedings for an offence to which this section applies unless the device is of a type approved by the Secretary (a) of State, and (b) any conditions subject to which the approval was given are satisfied.
+Identical provisions are contained in the equivalent Northern Ireland legislation: article 23(1) and (4) of the Road Traffic Offenders (Northern Ireland) Order 1996.
+There are provisions to similar effect in section 6 of the Noise Act 1996, and in section 45 of the Antisocial Behaviour etc (Scotland) Act 2004, in respect of noise meters.
+The absence of this kind of explicit statutory provision from article 61(8B) thus raises the question of what consequence was intended to follow from non approval.
+This legislation was enacted against the background of the well understood
+general common law rule that evidence which has been unlawfully obtained does not automatically thereby become inadmissible.
+That has been clear since at least the decision of the Judicial Committee of the Privy Council in Kuruma v The Queen [1955] AC 197, where the defendant was charged with unlawful possession of ammunition which had been found on him as a result of an unlawful search, carried out by a policeman of insufficient seniority to make it.
+Lord Goddard CJ said this at p 203: In their Lordships opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue.
+If it is, it is admissible and the court is not concerned with how the evidence was obtained.
+This proposition was endorsed by the House of Lords in R v Sang [1980] AC 402, which dealt more specifically with the judges discretion to exclude evidence which will have the effect of rendering the trial unfair (see now section 78 of the Police and Criminal Evidence Act 1984 and its equivalent, article 76 of the Northern Ireland Order).
+Likewise in R v Khan [1997] AC 558 evidence obtained by unauthorised surveillance and the secret recording of private conversations was admissible despite the unlawful methods by which it had been obtained.
+The position was summarised by Lord Fraser, with whom all other members of the House of Lords agreed, in Fox v Chief Constable of Gwent [1986] AC 281, 292A as follows: It is a well established rule of English law, which was recognised in R v Sang, that (apart from confessions as to which special considerations apply) any evidence which is relevant is admissible even if it has been obtained illegally.
+It is clear that this inclusive rule of relevant evidence extends equally to evidence created by an unlawful process as it does to existing material uncovered by unlawful process; the recording in Khan is an example of the former.
+This common law background to the legislation, of which Parliament must be taken to have been well aware, shows that inadmissibility of the fingerprints here under consideration cannot possibly simply follow from the existence of the requirement for device approval.
+Rather, it is necessary to examine the Parliamentary intention as to consequence.
+With great respect to Mr McMahons principal argument, it is not correct that article 61(8B) would have no purpose, or would be a dead letter, unless its consequence were that any fingerprints obtained from an unapproved device were inadmissible.
+Whether or not inadmissibility is the consequence, the article still meant that a requirement by a policeman of a suspect in custody that he provide his fingerprints on an unapproved device would be one which the suspect was entitled to refuse.
+It might not be very likely that a suspect would be acquainted with the presence or absence of approval, but his solicitor might well be.
+Such a suspect could therefore refuse to provide his fingerprints on a Livescan device and he would not thereby commit the offence of obstructing a police officer that no doubt he otherwise would.
+Similarly, if it became known that the police were regularly using an unapproved device, there would be no defence to an application for judicial review in which the unlawfulness of their actions would be declared and, if persisted in, no doubt prohibited.
+Thus the clear statutory purpose of preventing the use of a device unless it is approved by the Secretary of State would be achieved.
+There is no need for the additional consequence of inadmissibility of evidence in order to give content to the statute.
+It follows that the wording of article 61(8B) does not itself provide the solution to the issue in this appeal.
+It is necessary to examine the question what Parliament must have intended to be the consequence of non approval of Livescan.
+The correct approach to this enquiry was explained by Lord Steyn in R v Soneji [2005] UKHL 49; [2006] 1 AC 340.
+It had previously been thought that statutory provisions could be classified as either mandatory (carrying the consequence of total invalidity for breach) or directory (carrying lesser consequence).
+The over rigidity of that a priori approach had given rise to difficulty.
+At para 23 Lord Steyn said this: Having reviewed the issue in some detail I am in respectful agreement with the Australian High Court [in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355] that the rigid mandatory and directory distinction, and its many artificial refinements, have outlived their usefulness.
+Instead, as held in Attorney Generals Reference (No 3 of 1999) [2001] 2 AC 91, the emphasis ought to be on the consequences of non compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity.
+That is how I would approach what is ultimately a question of statutory construction.
+That more flexible approach does not necessarily mean that failure to comply with statutory provisions may not have far reaching consequences.
+It may sometimes yield the conclusion that the inevitable consequence is total invalidity.
+That was the outcome in R v Clarke and McDaid [2008] UKHL 8; [2008] 1 WLR 338, where the question was whether the failure to sign an indictment nullified the ensuing trial.
+The statutory provisions there in question were sections 1(1) and 2(1) of the Administration of Justice (Miscellaneous Provisions) Act 1933 which provided for a bill of indictment (which had of itself no legal standing save as a proposal of charges) to become an indictment when signed.
+It was common ground that a valid indictment was a pre condition to a valid Crown Court trial.
+It can be seen from Lord Binghams speech at para 18 that he faithfully posed the Soneji question, namely what Parliament had intended, when passing the 1933 Act, should be the consequence of lack of signature.
+Since at the time of the 1933 Act the signature was taking the place of the previously existing endorsement of the bill by a Grand Jury, the answer was inescapable, if inconvenient: the signature validated the indictment in the same way as the Grand Jurys decision previously had done.
+Accordingly the absence of signature did indeed invalidate the subsequent trial, notwithstanding the fact that modern changes in the routes by which criminal cases arrive in the court of trial had in the meantime reduced the signature, in practice, to mere formality.
+The position had to be put right by amending legislation, in the form of the Coroners and Justice Act 2009.
+Should a similar parliamentary intention be deduced from article 61(8B)? Mr McMahon relies upon the well established rule that the product of a breathaliser test is inadmissible unless the testing device is an approved one.
+The cases begin with Scott v Baker [1969] 1 QB 659, decided in the infancy of the Road Safety Act 1967, which had introduced for the first time the offence of driving with blood alcohol beyond a prescribed statutory limit.
+The power to require a suspect to provide a laboratory blood or urine sample, by which blood alcohol could be tested, was made dependent upon a complex step by step procedure.
+The first step in that procedure was the taking of a preliminary (usually roadside) breath test.
+By section 7 a breath test was defined as one carried out using a device approved by the Secretary of State.
+The court held that such approval was essential to the statutory steps leading to a validly required laboratory sample, and that approval must be proved.
+The details of the blood alcohol driving legislation have been changed from time to time since then, and breath tests of a different kind are nowadays used not simply as a screening test but to determine the blood alcohol level.
+However, it remains the statutory rule, under section 7(1) of the Road Traffic Act 1988 and, in Northern Ireland, under article 18(1) of the Road Traffic (Northern Ireland) Order 1995, that a specimen of breath may be required in the course of an investigation into the offences of driving with excess alcohol, or of driving when unfit through drink or drugs, or of causing death by careless or dangerous driving when over the limit or under the influence, and that what may be thus required is limited to: specimens of breath for analysis by means of a device of a type approved by [the appropriate person.] Mr McMahon is therefore right to say that a breath specimen may be adduced in evidence against a defendant not only when the result constitutes the very offence of driving with excess alcohol but also where it is simply some part of the evidence relied on to prove an offence with different components, such as driving when unfit through drink.
+No one doubts the rule, however, that the product of a breath test will not be admissible unless the device used is an approved one.
+The statutory requirement for approval of an electronic fingerprint reader is not, however, analogous to the approval requirements in the cases of breath test or speed gun devices.
+Both the latter are methods of measuring something which cannot subsequently be re measured.
+They capture a snapshot of a suspects activity.
+The snapshot is often itself the offence.
+It is the speed, as measured by the device, which constitutes the offence of exceeding the speed limit.
+It is the blood alcohol content, as measured by the device, which constitutes the offence of driving with excess alcohol.
+In other cases, the snapshot is simply part of the evidence, for example if the offence charged is careless driving, or driving whilst unfit through drink.
+But in both kinds of situation, the activity measured by the device cannot be reproduced to be re measured.
+It is therefore entirely comprehensible that there should be a statutory requirement that the device should be approved, and that the measurements which can be relied upon in evidence should be limited to the products of such devices.
+That is no doubt why there are the specific statutory provisions in relation to speed guns described at para 8 above, and it is clearly why the courts have held that the requirements for approval in the case of breath tests have the like effect.
+The control fingerprints taken from the appellants in the police station were not snapshots.
+The impressions which their fingers provided could be reproduced at any time afterwards, and would be the same.
+The accuracy of the Livescan readings, if disputed, could readily be checked independently by the appellants providing more samples, whether by ink and paper or by any other means, for examination by an independent expert.
+The ease with which this can at any time be done demonstrates that there was no need at all for Parliament to stipulate, or to intend, that the product of unapproved electronic fingerprint readers should be inadmissible.
+It is the fact that in the present case there was no challenge whatever to the accuracy of the control fingerprints taken from Elliott by the Livescan device; the fingerprint found at the scene matched his control prints in no less than 45 particulars and there was no sign of any reliance on expert opinion either in the magistrates court or, after the absence of approval was appreciated, in the County Court.
+But if there had been a dispute, as in other cases it is at least possible that there might be, it would have been the simplest possible matter for new control prints to be provided so that independent expert opinion could be obtained.
+There appeared at first to be some limited support for the appellants contentions in an explanatory note which accompanied the proposed insertion into the Police and Criminal Evidence Act 1984 of section 61(8A) requiring type approval of electronic fingerprint readers.
+That amendment of the 1984 Act would have been achieved through section 78(7) of the Criminal Justice and Police Act 2001, had that subsection ever been brought into force.
+The explanatory note to that subsection (number 234) read as follows: Subsection (7) provides that where fingerprints are taken electronically, the device used must have type approval from the Secretary of State.
+This is to ensure that the device will produce images of the appropriate quality and integrity to be used for evidential purposes.
+However, the other background material shown to this court demonstrates that the purpose of the proposal for type approval was not principally the protection of the individual against risk of conviction on inaccurate evidence.
+The concern was much more closely related to the needs for the technology to work properly so that investigations could proceed confidently, for compatibility between police forces, both domestic and foreign, and for uniform machinery for search and comparison.
+The then Minister of State referred to the aim of facilitating a proper evidential trail.
+The House of Lords Select Committee on Science and Technology had emphasised the need for the technology to be robust.
+It is also clear that there was thought at one time that type approval would curtail any potential for unnecessary dispute in court about the legitimacy of electronically taken control fingerprints.
+The initial recommendation of the Police Scientific Development Branch had been against any stipulation for type approval.
+The reasons for that stance included the difficulty of formulating a test standard and the frequency of developments to many of the component parts of the system.
+The successful operation of Livescan in England and Wales over a decade without any type approval, as well as the experience in Northern Ireland, clearly contributed to the subsequent decision in 2009 not to commence the amendment to the English statute, and to repeal both article 61(8B) and the uncommenced section 61(8A).
+Overall the legislative history does not suggest any basis for concluding that Parliament intended that the consequence of use of unapproved apparatus should be the exclusion of the evidence.
+Such a consequence would, it is clear, be unnecessary and inappropriate.
+It is unnecessary because a reading of control fingerprints can always be checked subsequently.
+It is inappropriate because to exclude such evidence would deprive courts of reliable and relevant material.
+Since the product can be checked, and the evidence it provides is relevant, it ought to be admissible.
+If it were not, it would not be open to the police to take further control fingerprints without the consent of the subject, because he would no longer be in detention following arrest on suspicion of the offence, nor would he have been convicted of it.
+If the control fingerprints were to be inadmissible, not only would there be a windfall benefit to those who have committed crimes, perhaps of great gravity, but also defendants would be unable to rely on the evidence of the fingerprints of others when it was necessary for them to do so in order to defend themselves.
+A defendant who wished to show that a fingerprint found in an incriminating place belonged to another person, whom he contends committed the offence rather than himself, would be unable to adduce the evidence to do so.
+Some years after the provisions which we have here to construe, the Protection of Freedoms Act was enacted in 2012.
+Part 1, Chapter 1 contains, by way of proposed amendments to the Police and Criminal Evidence Act 1984, prospective provisions relating to fingerprints and other biometric data.
+Equivalent provision for the amendment of the Northern Ireland Order is made by section 9 of and Schedule 2 to the Criminal Justice (Northern Ireland) Act 2013.
+Neither set of provisions is yet in force but there is a proposed timetable for commencement.
+If and when these provisions are commenced they will provide for the destruction of fingerprints and other data in certain defined circumstances and/or after prescribed periods.
+There is express provision in proposed new section 63T(2) of the Police and Criminal Evidence Act 1984 (and in proposed new article 63Q(2) of the Northern Ireland Order) making inadmissible (at least against the person to whom the material relates) fingerprints or other data which the police have come under a duty to destroy.
+This proposed statutory scheme is consistent with the construction of the provisions we are considering in the present case.
+Where the intention is to make material inadmissible, express provision is made saying so, in the same way as it was in the statutes considered at para 8 above.
+Moreover, the proposed new scheme for destruction of biometric data is clearly founded on a view of individual rights which was considered to justify the consequence of inadmissibility if there is a duty to destroy the material.
+Such considerations do not apply to type approval for the machinery of taking fingerprints which there is no requirement to destroy.
+For these reasons it is clear that the correct conclusion is that Parliament did not intend, by enacting article 61(8B), that the consequence of an absence of approval should be to render inadmissible any fingerprints produced electronically.
+The decision of the Court of Appeal that the evidence of Elliots control fingerprints was admissible was correct.
+It follows that this appeal must be dismissed.
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+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 he would lie and feign loyalty to that regime in order to avoid the persecutory ill treatment to which he would otherwise be subjected? This is the question of general importance that arises in these appeals which are a sequel to the decision of this court in HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596.
+In that case, it was held that a gay man was entitled to live freely and openly in accordance with his sexual identity under the Refugee Convention (the Convention) 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.
+I shall refer to this as the HJ (Iran) principle.
+These cases fall to be decided in the light of the latest country guidance for Zimbabwe which is to be found in the decision of the Asylum and Immigration Tribunal (AIT) in RN (Returnees) Zimbabwe CG [2008] UKAIT 00083 to which I shall have to refer in more detail later.
+At this stage, it is sufficient to refer to para 216: This campaign [of persecution] has been rolled out across the country not by disciplined state forces but by the loose collection of 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 poll.
+It is precisely because of that that any attempt to target specifically those who have chosen to involve themselves with the [Movement for Democratic Change (MDC)] has been abandoned.
+In our view, there can be no doubt at all from the evidence now before the Tribunal that those at risk are not simply those who are seen to be supporters of the MDC but anyone who cannot demonstrate positive support for Zanu PF or alignment with the regime.
+We were referred to the new country guidance issued by the Upper Tribunal in EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC) which states that the situation in Zimbabwe has significantly changed.
+But this decision was quashed by the Court of Appeal on 13 June 2012.
+It is common ground that it is not material to the present appeals.
+The facts
+RT was born on 28 May 1981.
+She left Zimbabwe legally in February 2002 and arrived in the United Kingdom on 2 March 2002.
+She was given leave to enter for six months and began to work for a family as a nanny.
+She overstayed her leave.
+In 2005, she was refused leave to remain as a student.
+On 16 February 2009, she claimed asylum.
+The claim was refused by the Secretary of State and her appeal to the AIT was dismissed on 1 July 2009.
+IJ Hussain found that she would be able to take any positive steps necessary to show her loyalty to the regime and that there was no real risk of her being subject to ill treatment on return.
+Reconsideration was ordered on 8 December 2009.
+On the reconsideration, RTs appeal was dismissed by the Upper Tribunal on 2 March 2010.
+DIJ Manuell found that she was a credible witness and that she had never been politically active in Zimbabwe or in the United Kingdom.
+At para 25 he gave his reasons for concluding that she did not have a well founded fear of persecution on a Convention ground.
+Of particular relevance is the finding that she was in a position to explain that she has never been politically involved at home or abroad, should anyone see fit to enquire.
+SM was born on 26 September 1982.
+She left Zimbabwe in April 2008 using a passport issued in another name and claimed asylum in the United Kingdom on 1 May 2008.
+Following refusal of her claim in November 2008, she appealed to the AIT.
+Her appeal was dismissed on 29 January 2009.
+IJ Lawrence found that she was not a credible witness, had given inconsistent accounts of her involvement with the MDC and had lied in a number of other respects.
+On 17 June 2009, reconsideration was ordered on the single issue of whether SM would be at risk on return in view of the decision in RN.
+Her appeal was dismissed by IJ Charlton Brown on 3 November 2009.
+She too found that SM was not a credible witness.
+She said that SM had no connections with the MDC and that, although her mother had left Zimbabwe in 2002 and had been recognised as a refugee in 2003, she had not had difficulties living in Zimbabwe between 2002 and 2008.
+On the issue of loyalty to the regime, she said at para 23: Finally, in terms of whether or not this appellant can demonstrate positive support for/loyalty to ZANU PF, it seems clear that she herself has not been linked with the MDC as she has claimed, given her lack of credibility throughout.
+As previously stated, she appears to have been able to live in Zimbabwe without problems since her mother left the country in 2002 and quite frankly, given this individuals complete lack of credibility and indeed her inclination to lie as and when required, as the original immigration judge pointed out, no doubt she would be prepared to lie again in the future to the authorities on return to Zimbabwe about any political affiliation she might have.
+AM was born on 16 November 1966.
+He left Zimbabwe and arrived in the United Kingdom on 25 February 2001 with leave to enter as a visitor.
+He remained with leave as a student until 30 November 2007.
+He claimed asylum on 28 April 2009.
+This was refused.
+His appeal was dismissed by the AIT on 15 September 2009 and dismissed again (following reconsideration) on 23 March 2010.
+DIJ Shaerf did not find AM to be a credible witness.
+Although he was in favour of the MDC (para 46), AM had no political profile and was not politically engaged prior to his departure from Zimbabwe (para 47).
+He would be able to account for his absence from Zimbabwe by reference to his studies in the United Kingdom and the breakdown of his marriage whilst he was here.
+He had returned to Zimbabwe in 2003 without difficulty.
+RT, SM and AM all appealed to the Court of Appeal.
+The judgment of the court was given by Carnwath LJ: [2010] EWCA Civ 1285; [2011] Imm AR 259.
+Their appeals were allowed.
+The court said at para 36 that if individuals are forced to lie about their absence of political beliefs, solely in order to avoid persecution, that seems to us to be covered by the HJ (Iran) principle, and does not defeat their claims to asylum.
+In the case of RT, the court said (para 42) that the Upper Tribunal did not address the critical issue raised by RN since: It is not enough that she would be able to explain her lack of political activity abroad.
+The question is whether she would be forced to lie in order to profess loyalty to the regime, and whether she could prove it.
+Since she was found to be generally credible, there is no other reason to hold that she has failed to prove her case.
+The court allowed RTs appeal and upheld RTs asylum claim.
+As for SM, at para 46 the court said of para 23 of the decision of the AIT that: it was not enough to hold that she would be willing to lie as and when required, if the reason for doing so would be to avoid persecution.
+Nor is willingness to lie the same as ability to prove loyalty to the regime.
+On the other hand, in view of her lack of credibility overall, it remains open to question whether her case should fail for lack of proof as in [TM (Zimbabwe) v Secretary of
+State for the Home Department [2010] EWCA Civ 916].
+We will
+therefore allow the appeal and remit the case to the Upper Tribunal for redetermination.
+In relation to AM, the court said at para 52: As in the first case, the issue was not simply whether the appellant could account for his absence in the UK.
+The judge failed to address the issue as to his ability to show his loyalty to the regime.
+Unlike RT, he has not been held to be a credible witness.
+Accordingly, as in the case of SM, we do not feel able to substitute our own conclusion on this issue.
+We will therefore allow the appeal and remit the case to the Upper Tribunal.
+The Secretary of State seeks an order that the decisions of the Tribunal should be restored in all three cases, alternatively that the claims should be remitted for further consideration of the sole issue of whether each claimant would be able to prove loyalty to the regime.
+KM was born on 5 March 1957.
+He left Zimbabwe legally and claimed to have arrived in the United Kingdom in January 2003 on a false South African passport.
+He was given six months leave to enter as a visitor.
+He claimed asylum on 20 August 2008 and his claim was refused by the Secretary of State.
+His appeal was dismissed by the AIT on 1 April 2009.
+A fact of central importance was that his son had been granted asylum in the United Kingdom because he had a well founded fear of persecution in Zimbabwe on the grounds that he was a sympathiser of the MDC.
+IJ Parkes concluded that KM and his son (on whose evidence he relied) were not reliable witnesses with regard to events in Zimbabwe and that KM could not demonstrate an inability to show loyalty to the regime.
+On 11 August 2009, Hickinbottom J ordered reconsideration.
+The appeal was dismissed on reconsideration on 23 October 2009.
+SIJ Latter said at para 18: In the light of the judges findings of fact I am not satisfied that the appellant 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.
+The judge found that the appellant had no profile in Zimbabwe and had not been involved in MDC activities.
+There was no reasonable degree of likelihood that the grant of status to his son would be known to those who might call upon him to show loyalty and he also failed to establish any serious possibility of finding himself in a position that such a call would now be made on him.
+Finally, he failed to show that his background, his profile or his beliefs were such that he would not be able to demonstrate loyalty.
+The Court of Appeal allowed his appeal and remitted the case to the Upper Tribunal.
+The leading judgment was given by Pill LJ: [2011] EWCA Civ 275.
+The Secretary of State accepted that the appeal should be allowed by the Court of Appeal because it was arguable that the Tribunal had failed to give adequate consideration to the assessment of risk in the light of the guidance in RN.
+The issue between the parties was whether there should be a remittal to the Tribunal (as the Secretary of State contended) or the appeal should be allowed outright (as the appellant contended).
+It was conceded by the Secretary of State that there was a real risk that the appellants son having obtained asylum because of his MDCs sympathies would come out on the appellants return (para 6 of Pill LJs judgment); and that the fact that KMs son had been granted asylum may place the appellant in an enhanced risk category by making it more difficult for him to demonstrate his loyalty to the regime (para 12).
+The primary submission of the Secretary of State to the Court of Appeal was that there should be a further opportunity to examine the circumstances of return, for example, the area to which KM would return and whether he was a person who would be returning to a milieu where loyalty to the regime would be assumed (para 13).
+At para 15, Pill LJ said that, in the light of the evidence and the guidance in RN, the appellants prospect of demonstrating loyalty to the regime appeared bleak.
+He concluded, however, that this was not a case which the court could decide on the basis that only one outcome was possible before the Tribunal, although he regarded the appellants case as strong and it was acknowledged by the Secretary of State that there was a risk of his sons status becoming known (para 29).
+At para 27, he gave two reasons for his conclusion by reference to the decision in RN: First, an applicant found not to have been a witness of truth will not be assumed to be truthful about his inability to demonstrate loyalty (paragraph 246).
+Secondly, there is recognition, in paragraphs 229 and 230, of categories of people, for example, those returning to more affluent areas and likely to be associated with the regime, who may be returning to a milieu where loyalty to the regime may be assumed and the risk of persecution does not arise.
+The country guidance in RN
+In RN the AIT summarised the position at para 258 as follows: The evidence establishes clearly that those at risk on return to Zimbabwe on account of imputed political opinion are no longer restricted to those who are perceived to be members or supporters of the MDC, but include anyone who is unable to demonstrate support for or loyalty to the regime or Zanu PF.
+To that extent the country guidance in HS (Returning asylum seekers) Zimbabwe CG [2007] UKAIT 00094 is no longer to be followed.
+The following points of detail are relevant.
+The risk of persecution resulted in particular from the activities at road blocks of ill disciplined militia gangs and War Veterans.
+It did not result from the risk of detection at the airport on return to Zimbabwe.
+The means used by those manning road blocks to establish whether a person was loyal to the ruling Zanu PF party included requiring them to produce a Zanu PF card or sing the latest Zanu PF campaign songs.
+An inability to do these things would be taken as evidence of disloyalty to the party and therefore of support for the opposition (para 81).
+In deploying these militia gangs, the regime unleashed against its own citizens a vicious campaign of violence, murder, destruction, rape and displacement designed to ensure that there remains of the MDC nothing capable of mounting a challenge to the continued authority of the ruling party (para 215).
+Any attempt by the regime to target those who have chosen to involve themselves with the MDC has been abandoned.
+The risk of not being able to demonstrate loyalty to the regime exists throughout the country, in both urban and rural areas (para 226).
+The means by which loyalty may be demonstrated will vary depending on who is demanding it.
+Production of a Zanu PF card is likely to suffice where an individual is confronted with such a demand, for example, at a road block.
+But even that may not protect the holder from serious harm in rural areas where the adverse interest is in the community as a whole, because the area is one in which the MDC made inroads in the Zanu PF vote at the March 2008 elections (para 227).
+People living in high density urban areas will face the same risk from militias or War Veterans as those living in rural areas, save that the latter are possibly at greater risk if their area has been designated as a no go area by the militias (para 228).
+Finally, at paras 229 and 230, points are made about milieu which Pill LJ noted at para 27 of his judgment, to which I have referred above.
+HJ (Iran)
+There has been no challenge in these appeals to the correctness of the decision in HJ (Iran) or its essential reasoning.
+In the light of the submissions that have been advanced in the present appeals, it is necessary to refer to parts of the judgments in HJ (Iran) in a little detail.
+The court recognised as a refugee a gay man who, if he returned to his country of nationality and lived openly as a homosexual, would face a real risk of persecution on the ground of his sexual orientation, and who, in order to avoid this risk, would carry on any homosexual relationships discreetly.
+I would accept the analysis of Mr Fordham QC that five principal reasons were given by the court for this conclusion.
+First, the treatment of those who lived openly as homosexuals in Iran and Cameroon constituted persecution (para 40 42).
+Secondly, sexual orientation was a protected characteristic within the category of membership of a particular social group (para 42).
+Thirdly, the underlying rationale of the Convention was that people should be able to live freely, without fearing that they may suffer harm of the requisite intensity or duration because they are, say, black, or the descendants of some former dictator, or gay (para 53): see also paras 52, 65, 67 and 78.
+Fourthly, the necessary modification in order to avoid persecution (carrying on any homosexual relationships discreetly) ran contrary to this underlying rationale.
+It involved surrendering the persons right to live freely and openly in society as who they are, in terms of the protected characteristic, which was the Conventions basic underlying rationale: see per Lord Rodger at paras 75 76, Lord Hope at para 11 and myself at para 110.
+Fifthly, the modification was a response to the feared persecution because of these dangers of living openly (para 40).
+There was a difference between a case where the individual would live discreetly because of social pressures (para 61) and the situation where he would behave discreetly in order to avoid persecution because he is gay (para 62).
+Only the latter would be entitled to refugee protection, assuming, of course, that he would suffer persecution if he were to live openly as a homosexual.
+In the course of its reasoning, the court rejected three arguments advanced on behalf of the Secretary of State.
+The first was that it was necessary for a refugee to be able to characterise living discreetly in order to avoid persecution as being itself persecution.
+The second was that it was appropriate to see living discreetly in such circumstances as analogous to internal relocation, so that the unduly harsh test applied in relation to internal relocation should be applied here too: see per Lord Hope at paras 20 and 21.
+The third was that the question was whether living discreetly was or was not reasonably tolerable to the asylum seeker.
+This was the test enunciated by the Court of Appeal in HJ (Iran).
+In reaching his conclusion, Lord Rodger (para 69) followed the reasoning of the majority in the High Court of Australia in Appellant S395/2002 v Minister of Immigration (2003) 216 CLR 473.
+At para 72, he also referred to the approach adopted in New Zealand, particularly in Refugee Appeal No 74665/03 [2005] INLR 68 where at para 124 the New Zealand Refugee Status Appeals Authority considered that its own approach and that expressed by the majority in Appellant S395/2002 converged on the same point, namely that refugee status cannot be denied by requiring of the claimant that he or she avoid being persecuted by forfeiting a fundamental human right.
+Lord Rodger continued: The difference between the High Court and the authoritywhich the authority considered could be important in certain caseswas that it preferred to use a human rights framework in order to determine the limits of what an individual is entitled to do and not to do.
+That approach might, for instance, be relevant if an applicant were claiming asylum on the ground that he feared persecution if he took part in a gay rights march.
+I respectfully see the attractions of that approach.
+But no such issue arises in the present appeals and I prefer to leave the point for consideration in a case where it might be of practical effect.
+For present purposes I take the decision of the authority, based on a particularly full and impressive analysis of the relevant materials, as clear support for the High Court of Australias approach that an applicant cannot be denied asylum on the basis that he would, in fact, take effective steps, by suppressing his sexual identity, to avoid the harm which would otherwise threaten him.
+I shall return to the New Zealand case later in this judgment.
+At para 113 of my judgment, I said that the emphasis in the New Zealand decision was on the fact that refugee status could not be denied to a person who on return would forfeit a fundamental human right in order to avoid persecution.
+Like Lord Rodger, I saw the attractions of this approach.
+At para 114, I said that a particular attraction of the New Zealand approach was that it facilitated a determination of whether the proposed action by the claimant was at the core of the right or at its margins.
+At para 115, I said: It is open to question how far the distinction between harmful action at the core of the right and harmful action at its margin is of relevance in cases of persecution on grounds of immutable characteristics such as race and sexual orientation.
+But it is a valuable distinction and there may be more scope for its application in relation to cases concerning persecution for reasons of religion or political opinion.
+The principal issues that arise in these appeals
+Two principal issues arise.
+The first is whether the HJ (Iran) principle can apply to an individual who has no political beliefs and who is obliged to pretend to support a political regime in order to avoid the persecution that he would suffer if his political neutrality were disclosed.
+Is the position of such a person analogous to that of a homosexual who is obliged to live a discreet life in order to avoid the persecution that he would suffer if he revealed his sexual orientation?
+The second is whether, in the light of the country guidance given in RN, there is a real risk that such a person would face persecution on the grounds that he would be perceived to be a supporter of MDC.
+In other words, would he face a risk of persecution on the grounds of imputed political belief? The first issue: can the HJ (Iran) principle apply to individuals who have no political beliefs?
+The case of the Secretary of State in outline
+The relevant factual premises for a consideration of these issues are that (i) the claimants do not hold any political beliefs and (ii) in practice, in order to avoid the imputation that they do not support the ruling regime (and consequently to avoid maltreatment), there is a real and substantial risk that they will be required to dissemble political loyalty to that regime.
+The Court of Appeal were wrong to say at para 36 of their judgment that, if the claimants are forced to lie about their political neutrality or indifference solely in order to avoid persecution, the concealment of their lack of political beliefs would not defeat their claims to asylum.
+HJ (Iran) does not establish any such rigid principle.
+Rather, what is required is a fact sensitive analysis and consideration of whether interference with the claimants freedom to hold or not hold political opinions is at the core or the margin of the protected right or requires them to forfeit a fundamental human right.
+There are two fundamental differences between HJ (Iran) and the present cases.
+First, the issue in these cases does not relate to a fundamental or immutable part of the individuals identity or a fundamental human right, since the claimants do not have any political views.
+The right in question is freedom of political thought and/or expression.
+Since the claimants do not have political views, having to express a particular view which they do not hold is at the margin of the right.
+They are not being required to forfeit a fundamental human right in order to avoid being persecuted.
+Secondly, the situation contemplated in HJ (Iran) was one in which a person had to conceal a fundamental and immutable part of his identity at all times (at least when not in private).
+In these cases, what is contemplated is a situation where a person may on isolated occasions be required to spend a very short amount of time professing a feigned opinion on a matter of politics.
+Discussion
+It is well established that there are no hierarchies of protection amongst the Convention reasons for persecution, and the well founded fear of persecution test set out in the Convention does not change according to which Convention reason is engaged: see, for example, per Lord Hope in HJ (Iran) at para 10, per Lord Hoffmann in R v Immigration Appeal Tribunal, Ex p Shah [1999] 2 AC 629, 651B and per Lord Bingham in Fornah v Secretary of State for the Home Department [2007] 1 AC 412, paras 20 22 (approving the reasoning of Laws J in R v Immigration Appeal Tribunal, Ex p De Melo [1997] Imm AR 43, 49 50).
+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.
+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.
+Mr Swift accepted that such a person would have a strong case for Convention protection, but he stopped short of an unqualified acceptance of the point.
+In my view, there is no basis for such reticence.
+The joint judgment of Gummow and Hayne JJ in Appellant S395/2002 contains a passage under the heading Discretion and being discreet which includes the following at para 80: If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief.
+But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question.
+And to say to an applicant that he or she should be discreet about such matters is simply to use gentler terms to convey the same meaning.
+The question to be considered in assessing whether the applicants fear of persecution is well founded is what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences.
+I made much the same point in HJ (Iran) at para 110: If the price that a person must pay in order to avoid persecution is that he must conceal his race, religion, nationality, membership of a social group or political opinion, then he is being required to surrender the very protection that the Convention is intended to secure for him.
+The Convention would be failing in its purpose if it were to mean that a gay man does not have a well founded fear of persecution because he would conceal the fact that he is a gay man in order to avoid persecution on return to his home country.
+In the context of religious belief, the United Nations High Commissioner for Refugees has said (in my view, rightly): Applying the same standard as for other Convention grounds, religious belief, identity or way of life can be seen as so fundamental to human identity that one should not be compelled to hide, change or renounce this in order to avoid persecution: Guidelines on International Protection: Religion Based Refugee Claims (2004) para 13 (emphasis added).
+But what about the person who has no political beliefs and who, in order to avoid persecution, is forced to pretend that he does? Does the right to hold no political beliefs (and say so) attract Convention protection as much as the right to hold and express political beliefs? A useful starting point is the preamble to the Convention, which includes the following: CONSIDERING that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination, CONSIDERING that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms.
+This emphasis on the importance of human rights in the present context is also reflected in Council Directive 2004/83/EC (the Qualification Directive) whose tenth recital states: This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union.
+In particular this Directive seeks to ensure full respect for human dignity and the right to asylum of applicants for asylum and their accompanying family members.
+As Lord Bingham said in Fornah at para 10, the Convention must be interpreted: in accordance with its broad humanitarian objective and having regard to the principles, expressed in the preamble, that human beings should enjoy fundamental rights and freedoms without discrimination and that refugees should enjoy the widest possible exercise of these rights and freedoms.
+Lord Steyn made the same point in R v Immigration Appeal Tribunal, Ex p Shah [1999] 2 AC 629, 638H to 639E.
+Under both international and European human rights law, 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.
+The rights to freedom of thought, opinion and expression are proclaimed by articles 18 and 19 of the Universal Declaration of Human Rights 1948.
+As Lord Hope said in HJ (Iran) at para 15: The guarantees in the Universal Declaration are fundamental to a proper understanding of the Convention.
+The relevance of that general statement is not diminished by the note of caution sounded by Lord Hope that the Convention has a more limited purpose than the Declaration, in that, for example, persecution is not the same as discrimination simpliciter.
+Articles 18 and 19 of the Declaration are given effect internationally by articles 18 and 19 of the International Covenant on Civil and Political Rights 1966 (ICCPR).
+Article 18 of the ICCPR deals with the right to freedom of thought, conscience and religion.
+Article 19 deals with the right to freedom of opinion and expression.
+The United Nations Human Rights Committee has commented on these rights.
+In its General Comment No 22 on article 18 (30 July 1993), it said that the right to freedom of thought, conscience and religion in article 18.1 is far reaching and profound (para 1); the terms belief and religion are to be broadly construed (para 2); and article 18 protects theistic, non theistic and atheistic beliefs, as well as the right not to profess any religion or belief (para 2).
+In its General Comment No 34 on article 19 (12 September 2011), it said that freedom of opinion and freedom of expression are indispensable conditions for the full development of the person.
+They are essential for any society.
+They constitute the foundation stone for every free and democratic society (para 2).
+All forms of opinion are protected (para 9).
+At para 10, it said: Any form of effort to coerce the holding or not holding of any opinion is prohibited.
+Freedom to express ones opinion necessarily includes freedom not to express ones opinion.
+There is case law in relation to the European Convention on Human Rights to the effect that the guarantee of freedom of thought, conscience and religion under article 9 protects the indifferent or unconcerned, and extends to the right not to hold thoughts or beliefs and not to give expression to them.
+In Kokkinakis v Greece (1993) 17 EHRR 397, para 31, the European Court of Human Rights said: As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a democratic society within the meaning of the Convention.
+It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and of their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned.
+The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.
+In Buscarini and others v San Marino (1999) 30 EHRR 208, at para 34
+unanimous Grand Chamber of the ECtHR repeated this passage and added: That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion.
+In Buscarini, the applicants were required, contrary to their wishes, to swear an oath on the Holy Gospels in order to take their seats in the San Marino Parliament.
+It was held that this requirement was not compatible with article 9.
+No part of the Grand Chambers reasoning concerned the strength of the applicants convictions that they should not be required to swear the oath.
+The essential point is that the court held that article 9 protects the right of the non believer as well as that of the believer.
+I can see no basis in principle for treating the right to hold and not to hold political beliefs differently.
+Article 10 of the ECHR provides that everyone has the right to freedom of expression and that this right shall include freedom to hold opinions.
+That must include the freedom not to hold opinions.
+As Professor Barendt puts it in Freedom of Speech, OUP, 2005 (2nd ed), p 94: The right not to speak, or negative freedom of speech, is closely linked with freedom of belief and conscience and with underlying rights to human dignity, which would be seriously compromised by a legal requirement to enunciate opinions which are not in truth held by the individual.
+Mr Husain QC has also drawn attention to some comparative jurisprudence.
+In his celebrated judgment in West Virginia State Board of Education v Barnette (1943) 319 US 624, 642 Justice Jackson said: If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
+If there are any circumstances which permit an exception, they do not now occur to us.
+The Supreme Court upheld the challenge by Jehovahs Witnesses to the constitutionality of a state requirement that children in public schools salute and pledge loyalty to the US flag.
+The court held that the freedom not to speak was an integral part of the right to speak.
+At pp 634 635, Justice Jackson said: Nor does the issue as we see it turn on ones possession of particular religious views or the sincerity with which they are held.
+While religion supplies the appellees motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views hold such a compulsory rite to infringe constitutional liberty.
+Similarly, Sachs J in the Constitutional Court of South Africa stated in Christian Education South Africa v Minister of Education 2000 (10) BCLR 1051, para 36: There can be no doubt that the right to freedom of religion, belief and opinion in the open and democratic society contemplated by the Constitution is important.
+The right to believe or not to believe, and to act or not to act according to his or her beliefs or non beliefs, is one of the key ingredients of any persons dignity.
+It can therefore be seen that under both international and European human rights law, 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 express opinions.
+It is true that much of the case law and commentary is on freedom of belief in the context of religion, rather than other kinds of belief (whether political, philosophical or otherwise).
+But I see no basis for distinguishing between the freedom to hold and express different kinds of belief here.
+As Sachs J said, the right to believe or not to believe is a key ingredient of a persons dignity.
+The right to dignity is the foundation of all the freedoms protected by the Convention.
+I repeat what I said in HJ (Iran) at para 113: The right to dignity underpins the protections afforded by the Refugee Convention: see Canada (Attorney General) v Ward [1993] 2 SCR 689, approving Professor Hathaway, Law of Refugee Status (1991), p 108: The dominant view, however, is that refugee law ought to concern itself with actions which deny human dignity in any key way, and that the sustained or systemic denial of core human rights is the appropriate standard.
+Freedom to hold and express political beliefs is a core or fundamental right.
+As Mr Husain says, it would be anomalous, given that the purpose of the Convention inter alia is to ensure to refugees the widest possible exercise of their fundamental rights and freedoms, for the right of the unconcerned to be protected under human rights law, but not as a religious or political opinion under the Convention.
+Mr Swift accepts that political neutrality is an important human right protected by the Convention, but, he submits, only if the individual is a committed political neutral and not one to whom his neutrality is a matter of indifference.
+This is because there is no entitlement to protection under the Convention where the interference involves matters which are only at the margins of an individuals right to hold or not hold political opinions, and not at the core of that right.
+There is no entitlement to protection where what is required of the applicant does not oblige him to forfeit a fundamental human right.
+Mr Swift, therefore, draws a distinction between a person who is a conscientious or committed political neutral (A) and a person who has given no thought to political matters because the subject simply is of no interest to him (B).
+He accepts that the Convention protects A from persecution, because his political neutrality is a core or fundamental human right.
+The HJ (Iran) principle is capable of applying to A. Refugee status may not be denied to him simply because he would pretend to support a regime in order to avoid persecution.
+But Mr Swift says that the HJ (Iran) principle cannot apply to B because, in his case, false support for the regime would cause interference at the margin, rather than the core, of the protected right and would not cause him to forfeit a fundamental human right.
+Mr Swift seeks support for the distinction, in particular, from paras 72 and 115 of HJ (Iran) to which I have referred at paras 20 and 21 above.
+I would reject this distinction for a number of reasons.
+First, the right not to hold the protected beliefs is a fundamental right which is recognised in international and human rights law and, for the reasons that I have given, the Convention too.
+There is nothing marginal about it.
+Nobody should be forced to have or express a political opinion in which he does not believe.
+He should not be required to dissemble on pain of persecution.
+Refugee law does not require a person to express false support for an oppressive regime, any more than it requires an agnostic to pretend to be a religious believer in order to avoid persecution.
+A focus on how important the right not to hold a political or religious belief is to the applicant is wrong in principle.
+The argument advanced by Mr Swift bears a striking resemblance to the Secretary of States contention in HJ (Iran) that the individuals in that case would only have a well founded fear of persecution if the concealment of their sexual orientation would not be reasonably tolerable to them.
+This contention was rejected on the grounds that (i) it was unprincipled and unfair to determine refugee status by reference to the individuals strength of feeling about his protected characteristic (paras 29 and 121) and (ii) there was no yardstick by which the tolerability of the experience could be measured (paras 80 and 122).
+As regards the point of principle, it is the badge of a truly democratic society that individuals should be free not to hold opinions.
+They should not be required to hold any particular religious or political beliefs.
+This is as important as the freedom to hold and (within certain defined limits) to express such beliefs as they do hold.
+One of the hallmarks of totalitarian regimes is their insistence on controlling peoples thoughts as well as their behaviour.
+George Orwell captured the point brilliantly by his creation of the sinister Thought Police in his novel 1984.
+The idea if you are not with us, you are against us pervades the thinking of dictators.
+From their perspective, there is no real difference between neutrality and opposition.
+In Gomez v Secretary of State for the Home Department [2000] INLR 549, a starred decision of the Immigration Appeal Tribunal, Dr Storey put the point well at para 46: It will always be necessary to examine whether or not the normal lines of political and administrative responsibility have become distorted by history and events in that particular country.
+This perception also explains why refugee law has come to recognise that in certain circumstances neutrality can constitute a political opinion.
+In certain circumstances, for example where both sides operate simplistic ideas of political loyalty and political treachery, fence sitting can be considered a highly political act.
+There is no support in any of the human rights jurisprudence for a distinction between the conscientious non believer and the indifferent non believer, any more than there is support for a distinction between the zealous believer and the marginally committed believer.
+All are equally entitled to human rights protection and to protection against persecution under the Convention.
+None of them forfeits these rights because he will feel compelled to lie in order to avoid persecution.
+Secondly, the distinction suggested by Mr Swift is unworkable in practice.
+On his approach, the question arises: how important to the individual does the right not to hold political beliefs have to be in order to qualify for protection? On a spectrum of political non belief, at one end is the person who has carefully considered matters engaging the machinery of State, government, and policy (Goodwin Gill and McAdam, The Refugee in International Law, 3rd ed (2007) p 87) and conscientiously decided that he is not interested.
+He may, for example, have concluded that effective political governance is beyond the ability of man and that he cannot therefore support any political party or cause.
+At the other end is the person who has never given any thought to such matters and has no interest in the subject.
+There will also be those who lie somewhere between these two extremes.
+Where is the core/marginal line to be drawn? At what point on the spectrum of non belief does the non belief become a core or fundamental human right? The test suggested by Mr Swift would, to say the least, be difficult to apply.
+Unless compelled to do so, we should guard against introducing fine and difficult distinctions of this kind.
+In my view, there is no justification for calling on immigration judges to apply the distinction suggested by Mr Swift.
+It would be likely to be productive of much uncertainty and potentially inconsistent results.
+Thirdly, Mr Swifts suggested distinction between core and marginal rights is based on a misunderstanding of what we said in HJ (Iran).
+In order to understand what Lord Rodger and I said on the issue, it is necessary first to see what was said by the New Zealand Refugee Status Appeals Authority in Refugee Appeal No 74665/03.
+At para 82, the Authority said that if the right sought to be exercised by the applicant is not a core human right, the being persecuted standard of the Convention is not engaged.
+But if the right is a fundamental human right, the next stage is to determine the metes and bounds of that right.
+The Authority continued: If the proposed action in the country of origin falls squarely within the ambit of that right the failure of the state of origin to protect the exercise of that right coupled with the infliction of serious harm should lead to the conclusion that the refugee claimant has established a risk of being persecuted.
+The same point was made at para 90.
+For the purpose of refugee determination, the focus must be on the minimum core entitlement conferred by the relevant right.
+Thus, where the risk of harmful action is only that activity at the margin of a protected interest is prohibited, it is not logically encompassed by the notion of being persecuted.
+The point was repeated at para 120.
+At paras 99, 101 and 102, the Authority gave examples of the kind of activity which were at the margin of a protected right.
+Prohibition on a homosexual from adopting a child on the grounds of his sexual orientation would not be persecution, because adoption of a child was well on the margin of the right enjoyed by homosexuals to live their lives as homosexuals openly and free from persecution.
+The same point was made in relation to (i) the denial to post operative transsexuals of the right to marry, (ii) the denial to homosexuals of the right to marry and (iii) the prosecution of homosexuals for sado masochistic acts.
+It was suggested that, whether or not any of these involved breaches of human rights, they could not be said to amount to persecution since the prohibited activities in each case were at the margin of the protected right.
+In HJ (Iran), Lord Rodger gave as another possible example the applicant who claimed asylum on the ground that he feared persecution if he took part in a gay rights march.
+If a person would be able to live freely and openly as a gay man provided that he did not take part in gay rights marches, his claim for asylum might well fail.
+At paras 114 and 115 of my judgment too, I was saying no more than that a determination of whether the applicants proposed or intended action lay at the core of the right or at its margins was useful in deciding whether or not the prohibition of it amounted to persecution.
+I remain of that view.
+The distinction is valuable because it focuses attention on the important point that persecution is more than a breach of human rights.
+What matters for present purposes is that nothing that was said in the Authoritys decision or by us in HJ (Iran) supports the idea that it is relevant to determine how important the right is to the individual.
+There is no scope for the application of the core/marginal distinction (as explained above) in any of the appeals which are before this court.
+The situation in Zimbabwe as disclosed by RN is not that the right to hold political beliefs is generally accepted subject only to some arguably peripheral or minor restrictions.
+It is that anyone who is not thought to be a supporter of the regime is treated harshly.
+That is persecution.
+For the reasons that I have given, I would reject the restrictive approach suggested by Mr Swift to the application of the HJ (Iran) principle to these cases and hold that it applies to applicants who claim asylum on the grounds of a fear of persecution on the grounds of lack of political belief regardless of how important their lack of belief is to them.
+The second issue: imputed political belief
+The principle is not in doubt that an individual may be at risk of persecution on the grounds of imputed opinion and that it is nothing to the point that he does not in fact hold that opinion.
+Professor Hathaway, The Law of Refugee Status (1991), pp 155 156 states: The focus is always to be the existence of a de facto political attribution by the state of origin, notwithstanding the objective unimportance of the claimants political acts, her own inability to characterise her actions as flowing from a particular political ideology, or even an explicit disavowal of the views ascribed to her by the state.
+In Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees, April 2001, the UNHCR summarised the relevant law well at para 25: It is now generally agreed that imputed or perceived grounds, or mere political neutrality, can form the basis of a refugee claim.
+For example, a person may not in fact hold any political opinion, or adhere to any particular religion, but may be perceived by the persecutor as holding such an opinion or being a member of a certain religion.
+In such cases, the imputation or perception which is enough to make the person liable to a risk of persecution is likewise, for that reason, enough to fulfil the Convention ground requirement, because it is the perspective of the persecutor which is determinative in this respect.
+The application of this principle in any given case raises questions of fact.
+Persecution on the grounds of imputed opinion will occur if a declared political neutral is treated by the regime (or its agents) 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 political neutrality (and therefore his actual lack of support for the regime) would be discovered.
+It is well established that the asylum seeker has to do no more than prove that he has a well founded fear that there is a real and substantial risk or a reasonable degree of likelihood of persecution for a Convention reason: R v Secretary of State for the Home Department, Ex p Sivakumaran [1988] AC 958.
+I do not believe that any of this is controversial.
+How does it apply to the facts of these cases?
+The issue that is common to all these cases as regards imputed belief is whether there is a real and substantial risk that the political neutrality of the claimants would be discovered by the militia gangs and War Veterans who man road blocks even if the claimants were to dissemble and say that they support the regime.
+This raises two questions namely (i) whether the claimants would be likely to be stopped or face serious interrogation at road blocks at all; and (ii) if yes, whether their pretended support for the regime would be disbelieved.
+As regards the first question, the best evidence as to the likelihood of being stopped and interrogated at a road block is provided by RN.
+The AITs decision states that the militia groups and War Veterans operate in rural areas and urban districts (para 213) and across the country (para 216).
+The risk of persecution arises throughout the country (para 225) and people living in high density urban areas face the same risk from militias and War Veterans as those living in rural areas (para 228).
+But those living in more affluent low density urban areas or suburbs are likely to avoid such difficulties (para 229).
+If a failed asylum seeker is associated with the regime or is otherwise a person who would be returning to a milieu where loyalty to the regime is assumed, he will not be at risk simply because he spent time in the United Kingdom and sought to extend his stay by making a false asylum claim (para 230).
+In other words, it is only if an applicant returns to a milieu where loyalty to the regime is assumed that his claim is likely to fail at the first hurdle.
+As for the second question, the immigration judge would have to consider the kind of questions that the applicant might be asked when interrogated at the road block; how effective a liar the applicant would be when asserting loyalty to the regime; how credulous the interrogators would be in the face of such lies; whether the interrogators might ask the applicant to produce a Zanu PF card or sing the latest Zanu PF campaign songs and whether the applicant would be able to produce a card and sing the songs.
+It is difficult to see how a judge could provide confident answers to these questions.
+He or she would almost certainly be unable to avoid concluding that there would be a real and substantial risk that, if a politically neutral claimant were untruthfully to assert loyalty to the regime, his political neutrality would be discovered.
+To summarise, in the light of RN, 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 a milieu where political loyalty would be assumed and where, if he was interrogated at all, 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.
+Disposal
+I can now turn to the disposal of all four appeals in the light of my
+conclusion on the two principal issues.
+The facts relating to RTs case are set out at paras 4 and 5 above.
+The Secretary of State submits that there is no basis for concluding that, if RT were required to profess loyalty to the regime, she would be forced to lie.
+There was no record of any evidence as to her political views.
+The Tribunal merely found that she had never been politically active.
+Mr Swift submits that she may have been a fervent (albeit inactive) supporter of the regime.
+But DIJ Manuell found RT to be a credible witness and that she was in a position to explain that she has never been politically involved at home or abroad (para 25).
+Her evidence before IJ Hussain (which was accepted) was that on her return she would be required to demonstrate loyalty to the regime, which she could not do because she is not a political person and has not supported the party (para 34).
+Unless she would return to a milieu where loyalty to the regime was assumed, the only way that she could avoid the risk of persecution would be to feign support for the regime.
+In that event, having regard to my conclusions on the application of the HJ (Iran) principle, the Court of Appeal were right to uphold her claim to asylum.
+It is not suggested by Mr Swift that RT would return to a milieu where support for the regime would be assumed and where she would therefore not face the risk of hostile interrogation.
+In these circumstances, there was no case for remitting the case to the Tribunal.
+I would also reach the same conclusion on the basis of imputed opinion.
+The facts relating to SM are set out at para 6 above.
+In addition to taking issue with the way in which the Court of Appeal dealt with the HJ (Iran) principle, Mr Swift submits that they appear to have ignored or misunderstood RN where it was made clear (para 241) that a bare assertion that a person will be unable to prove loyalty is not enough for a successful claim, adding that this is especially so where the applicant has been found to be incredible.
+At paras 23 and 24 of the decision of IJ Charlton Brown, the judge concluded that, contrary to SMs claim, she had not been linked with the MDC, that she had been able to live in Zimbabwe without problems since 2002, and that she was unable to rely on any of the risk factors identified in RN.
+As to this, the Court of Appeal said at para 46: At first sight this is a much less meritorious case, and one can understand the judges reaction to her failure to give credible evidence.
+However, it was not enough to hold that she would be willing to lie as and when required, if the reason for doing so would be to avoid persecution.
+Nor is willingness to lie the same as ability to prove loyalty to the regime.
+On the other hand, in view of her lack of credibility overall, it remains open to question whether her case should fail for lack of proof as in TM.
+We will therefore allow the appeal and remit the case to the Upper Tribunal for redetermination.
+The Court of Appeal were correct.
+For all the reasons stated in RN, the fact that SMs claimed support for the MDC was rejected as being incredible was not decisive.
+The central question is whether there was a real and substantial risk that her loyalty to the regime could not be demonstrated.
+In view of her lack of credibility throughout, she might have difficulty in demonstrating that she did not have loyalty to the regime.
+But the case should be remitted to the Tribunal for that issue to be determined in the light of RN and in the light of what I have said about the HJ (Iran) principle and the issue of imputed opinion.
+There is no cross appeal on behalf of SM that her claim for asylum should be recognised by this court.
+I would dismiss this appeal.
+I have set out the findings by the AIT at para 7 above.
+The Court of Appeal allowed AMs appeal on the ground that the immigration judge had failed to address the issue as to his ability to show his loyalty to the regime (para 52).
+Like SM, he had not been held to be a credible witness.
+For that reason, the Court of Appeal did not feel able to substitute their own conclusion for that of the judge and remitted the case to the Tribunal.
+The Secretary of State advances no reasons particular to AMs case (as distinct from the HJ (Iran) principle) for overturning the decision of the Court of Appeal.
+There is no cross appeal by AM.
+I would, therefore, dismiss this appeal too.
+The facts relating to the case of KM are set out at paras 12 to 14 above.
+Mr Dove QC submits that the Court of Appeal should have allowed the appeal outright and not remitted the case to the Upper Tribunal for a third hearing.
+I have referred at para 14 above to the two reasons given by Pill LJ for his conclusion that, although KMs case was strong, it could not be said that it was bound to succeed before the Tribunal.
+The first was that an applicant who had been found to be an untruthful witness would not be assumed to be truthful about his inability to demonstrate loyalty to the regime.
+But, as I have already said, the circumstances in Zimbabwe as described in RN mean that the fact that an applicant is lacking in credibility may be a matter of little relevance on the key question of whether he will be able to demonstrate loyalty.
+As for the second reason, the milieu to which KM would be returned is likely to be of marginal relevance in this case.
+That is because, as was conceded before the Court of Appeal, there was a real risk that the fact that KMs son had been granted asylum in the United Kingdom on account of his MDC sympathies would come out on his return to Zimbabwe (para 6 Pill LJs judgment) and that this might place him in an enhanced risk category by making it more difficult for him to demonstrate his loyalty to the regime (para 12).
+I can well understand why the Court of Appeal decided to remit this case to the Tribunal.
+But it seems to me that, in the light of the concessions to which I have referred and the fact that KMs case was therefore very strong, it would not be just to subject him to a third Tribunal hearing.
+Overall conclusion
+For the reasons that I have given, I would dismiss the appeals of the Secretary of State in the cases of RT, SM and AM and allow the appeal of KM.
+LORD KERR
+For the reasons given by Lord Dyson, with which I entirely agree, I too would dismiss the appeals of the Secretary of State in the cases of RT, SM and AM and allow the appeal of KM.
+The starting point in consideration of these appeals must be that the purpose of the Refugee Convention is to protect people from persecution.
+In the extreme, repressive and anarchic conditions which obtain in Zimbabwe, the risk of being persecuted is all too real and predictable, albeit, on the evidence currently available, the incidence of that persecution is likely to be both random and arbitrary.
+As a general proposition, the denial of refugee protection on the basis that the person who is liable to be the victim of persecution can avoid it by engaging in mendacity is one that this court should find deeply unattractive, if not indeed totally offensive.
+Even more unattractive and offensive is the suggestion that a person who would otherwise suffer persecution should be required to take steps to evade it by fabricating a loyalty, which he or she did not hold, to a brutal and despotic regime.
+As a matter of fundamental principle, refusal of refugee status should not be countenanced where the basis on which that otherwise undeniable status is not accorded is a requirement that the person who claims it should engage in dissimulation.
+This is especially so in the case of a pernicious and openly oppressive regime such as exists in Zimbabwe.
+But it is also entirely objectionable on purely practical grounds.
+The intellectual exercise (if it can be so described) of assessing whether (i) a person would and could reasonably be expected to lie; and (ii) whether that dissembling could be expected to succeed, is not only artificial, it is entirely unreal.
+To attempt to predict whether an individual on any given day, could convince a group of undisciplined and unpredictable militia of the fervour of his or her support for Zanu PF is an impossible exercise.
+But all of the foregoing is by way of incidental preamble.
+The truly critical question in this appeal is whether there is a right in Refugee Convention terms not to have a political opinion.
+Ultimately, Mr Swift was driven to accept that there is such a right but he suggested that this right can be attenuated according to the disposition of the person who espouses a strictly apolitical stance.
+I consider that this central proposition is fundamentally flawed.
+The level of entitlement to protection cannot be calibrated according to the inclination of the individual who claims it.
+The essential character of the right is inherent to the nature of the right, not to the value that an individual places on it.
+And the need for a clear insight into that critical aspect of the right is well exemplified by the situation in Zimbabwe.
+If an apolitical individual fails to demonstrate plausibly that he or she is a sufficiently fervent supporter of Zanu PF, he or she will be deemed to be a political opponent, irrespective of how greatly he or she cherishes the right not to hold a political view.
+The status of deemed political opponent, whether it is the product of imputation of political opposition or merely the arbitrary decision of those testing the degree of conviction or fervour with which support for Zanu PF is expressed, is the gateway to persecution and that cannot be dependent on whether the lack of political opinion is due to a consciously held conviction or merely due to indifference.
+That is why the emphasis must be not on the disposition of the individual liable to be the victim of persecution but on the mind of the persecutor.
+In the present appeals it is clear that the question whether the treatment that the individuals might face if returned to Zimbabwe would amount to persecution is not in issue.
+Quite clearly it would be.
+Nor is there any reason to doubt that the motivation for simulating support for the regime on their parts would be because of their desire to avoid that persecution.
+The only basis, therefore, on which denial of their claim to refugee status can be sustained, is that their right not to hold a political opinion lies at the lower end of the core/marginal spectrum.
+As Mr Dove submitted, such an argument requires to be treated extremely circumspectly.
+Those instances where the right was found to lie at the marginal end of the continuum all involved a measure of voluntary control over the situation in which the individual who was claiming protection found himself.
+That is not the position here.
+But, in any event, if the core/marginal dichotomy has any relevance whatever, it is in making an assessment as to whether the species of infringement strikes at the essence of the right or merely at a less important aspect of it.
+For the reasons that Lord Dyson has given, it appears to me that the infringement is quintessentially a violation of the central core of the right not to hold a political opinion.
diff --git a/UK-Abs/train-data/judgement/uksc-2012-0062.txt b/UK-Abs/train-data/judgement/uksc-2012-0062.txt
new file mode 100644
index 0000000000000000000000000000000000000000..35382c5faf68a3e59eb9bb3d15f9387dfa147bc5
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@@ -0,0 +1,145 @@
+This appeal raises a question about the boundary between the jurisdiction of the First tier Tribunal (Tax Chamber) and that of the county court or the High Court.
+Underlying that issue is a question of the legality of the approach which Her Majestys Commissioners of Revenue and Customs (the Revenue) have taken to entries which a taxpayer, Mr Cotter, made in a tax return.
+This is a test case as we have been told that about 200 taxpayers have used the tax scheme which Mr Cotter has used.
+The case turns on the proper interpretation of provisions in the Taxes Management Act 1970 (TMA).
+The facts
+Mr Cotter filed his tax return for the 2007/08 year of assessment on 31 October 2008.
+In his return he made no claim for loss relief.
+As he is entitled to do, he left it to the Revenue to calculate the tax due for that tax year.
+On 24 December 2008 the Revenue produced a tax calculation based on Mr Cotters return.
+It showed income and capital gains tax due of 211,927.77.
+On 29 January 2009 Mr Cotters accountants wrote to the Revenue and enclosed a provisional 2007/08 loss relief claim and amendments to his 2007/08 tax return.
+The amendments added various entries to boxes in the tax return intimating that Mr Cotter had sustained an employment related loss of 710,000 in the tax year 2008/09 for which he claimed relief under sections 128 and 130 of the Income Tax Act 2007 (ITA).
+In particular, the claim for relief was made in: (i) the main tax return in box 19 on page TR6 under Any other information; (ii) the capital gains summary in box 14 on page CG1 in which the figure of 314,583 was inserted, and under Any other information in box 35 on page CG2; and (iii) the Additional Information pages.
+In the Additional Information pages, Mr Cotter inserted 395,417 in Box 3 on page Ai3 (Relief now for 2008 09 trading, or certain capital, losses) and 2007 08 in box 4 on that page (and the tax year for which you are claiming relief).
+On page Ai4, box 17 (Additional Information) he explained, as he had done on box 19 on page TR6 and in box 35 on page CG2, that his claim was made under sections 128 and 130 of ITA for an employment related loss which he had sustained in the tax year 2008/09.
+The provisional loss relief claim ended with these words: I acknowledge that my interpretation of the tax law applicable to the above transactions and the loss (and the manner in which I have reported them) may be at variance with that of [the Revenue].
+Further please note that although I have reported (and hereby claim the loss pursuant to section 128 ITA 2007) in box 3 above I wish to make it clear that the deduction I am claiming on my return is not necessarily what you may regard as relief now for 2008 09 trading, and certain capital losses for these reasons I assume you will open an enquiry.
+On 30 January 2009 the accountants sent a copy of the loss relief claim to the Revenues West Cheshire recovery office.
+They stated: As a result of this claim no further 2007/08 taxes will be payable by Mr Cotter.
+After sending a holding reply, the Revenue responded on 5 March 2009 to confirm that the tax return had been amended and to state that enquiries would be opened into the claim and the tax return.
+The letter stated that the Revenue did not intend to give effect to any credit for the loss until those enquiries were complete.
+On the same date the Revenue issued a fresh tax calculation which again stated Mr Cotters liability for the tax year 2007/08 at 211,927.77.
+On 11 March 2009 the Revenue wrote to Mr Cotter to intimate that it was enquiring into the amendment and the 2008/09 loss claim under Schedule 1A to TMA.
+In a further letter on the same date the Revenue asked Mr Cotter to provide specified information and documents.
+On 24 March 2009 Mr Cotters accountants wrote to the Revenues recovery office to inform it that they had asked the Revenue to amend the self assessment calculation and that as a result no further 2007/08 taxes will be payable by Mr Cotter.
+Mr Cotters accountants asserted in correspondence (i) that no further taxes were payable for 2007/08 because of the loss claim which was the subject of enquiry and (ii) that if tax were due as a result of an enquiry under section 9A of TMA, that tax was not payable until the enquiry had been completed.
+Mr Cotter also instructed NT Advisors LLP (NT) to respond to the Revenues recovery unit and to the threat of legal proceedings.
+In an undated letter which that unit received on 14 May 2009, NT contended that legal proceedings would be unlawful because (i) Mr Cotters self assessment showed that no tax was payable as at 31 January 2009 and (ii) the Revenue had not amended the self assessment return.
+After further correspondence about, among other things, the tax avoidance scheme which had been used to generate the loss claim, the Revenue issued legal proceedings in St Helens County Court on 22 June 2009.
+Its claim was for the income tax and capital gains tax for 2007/08 and the first payment to account for the year of assessment 2008/09 in the sum of 203,342, together with statutory interest.
+In his defence Mr Cotter argued (a) that he was entitled to use his loss claim to reduce to nil the tax otherwise payable for 2007/08 and (b) that the Tax Chamber of the First tier Tribunal had exclusive jurisdiction to determine whether he could make the loss claim in his 2007/08 tax return and thereby reduce the tax payable for that year.
+On 12 February 2010 the proceedings were transferred to the Chancery Division of the High Court, Manchester District Registry to determine the issue of jurisdiction.
+In a judgment handed down on 14 April 2011, David Richards J, the Vice Chancellor of the County Palatine of Lancaster, held (a) that the court had jurisdiction to determine in collection proceedings whether the taxpayer was entitled to rely on the claim for relief as a defence to a demand by the Revenue for immediate payment and (b) that Mr Cotter was not entitled to rely on his claim for loss relief as a defence to the Revenues demand for payment of the tax due in respect of 2007/08.
+The Vice Chancellor granted Mr Cotter permission to appeal.
+On 8 February 2012, the Court of Appeal (Arden, Richards and Patten LJJ) allowed Mr Cotters appeal.
+In their judgment, the Court of Appeal analysed the self assessment procedure and held that if the Revenue wished to dispute an item contained in a tax return, it had to follow the enquiry procedure set out in section 9A of TMA which would have given Mr Cotter a right of appeal to the First tier Tribunal.
+Neither the county court nor the High Court had jurisdiction to determine whether the taxpayer was entitled to make his claim in his tax return for 2007/08 for an income loss incurred in 2008/09.
+The Revenue appealed to this court.
+The tax provisions governing employment loss relief
+Section 128 of ITA provides for employment loss relief.
+It provides: 128 Employment loss relief against general income (1) A person may make a claim for employment loss relief against general income if the person (a) is in employment or holds an office in a tax year, and (b) makes a loss in the employment or office in the tax year (the loss making year). (2) The claim is for the loss to be deducted in calculating the persons net income (a) for the loss making year, (b) for the previous tax year, or (c) for both tax years. (See Step 2 of the calculation in section 23.)
+Sub section (7) provides: This Chapter is subject to paragraph 2 of Schedule 1B to TMA 1970 (claims for loss relief involving two or more years).
+Section 42(11A) of TMA provides the same: Schedule 1B to TMA has effect in respect of claims for relief involving two or more years of assessment.
+It is not disputed that Schedule 1B applies to Mr Cotters claim for relief.
+Paragraph 2 of Schedule 1B to TMA provides: (1)This paragraph applies where a person makes a claim requiring relief for a loss incurred or treated as incurred, or a payment made, in one year of assessment (the later year) to be given in an earlier year of assessment (the earlier year). (2) Section 42(2) of this Act shall not apply in relation to the claim. (3)The claim shall relate to the later year. (4) Subject to sub paragraph (5) below, the claim shall be for an amount equal to the difference between (a) the amount in which the person is chargeable to tax for the earlier year (amount A); and (b) the amount in which he would be so chargeable on the assumption that effect could be, and were, given to the claim in relation to that year (amount B). (5)Where effect has been given to one or more associated claims, amounts A and B above shall each be determined on the assumption that effect could have been, and had been, given to the associated claim or claims in relation to the earlier year. (6)Effect shall be given to the claim in relation to the later year, whether by repayment or set off, or by an increase in the aggregate amount given by section 59B(1)(b) of this Act, or otherwise. .
+In my view it is clear, in particular from paragraphs 2(3) and (6), that the scheme in Schedule 1B allows a taxpayer, who has suffered a loss in a later year (year 2) and seeks to attribute the loss to an earlier year of assessment (year 1), to obtain his relief by reducing his liability to pay tax in respect of year 2 or by obtaining a repayment of tax in year 2.
+It does not countenance by virtue of the relief any alteration of the tax chargeable and payable in respect of year 1.
+On the contrary, the sum for which the taxpayer receives relief in year 2 is the difference between what was chargeable in year 1 and what would have been chargeable on the assumption that effect could be, and were, given to the claim in relation to that year (paragraph 2(4)).
+In other words, the relief is quantified on the basis that the tax liability in year 1 has already been assessed.
+Income tax is an annual tax, and liability to such tax is calculated in relation to a particular tax year: sections 4 and 23 of ITA.
+Mr Gordon, who appeared for Mr Cotter, did not argue in this court that he was entitled to deduct the relief against income and gains in 2007/08.
+He accepted that paragraph 2(6) of Schedule 1B to TMA provides that effect is to be given to the claim in year 2.
+He was correct to make that concession.
+Accordingly, the claim did not affect the amount of tax which was chargeable or payable in relation to 2007/08.
+There was therefore no issue between the parties as to the correct assessment to tax in that year.
+The Revenues use of the taxpayers income tax liability in 2007/08 in quantifying his obligation to make payments to account for 2008/09 on 31 January and 31 July 2009 (section 59A(1) and (2) of TMA) does not affect the finality of the 2007/08 assessment.
+Whatever rights the claim for relief might have given the taxpayer in relation to a payment to account for 2008/09, if the Revenue had accepted its validity, it did not affect his obligation to pay the tax payable for 2007/08.
+Whether the Revenue acted legally by instituting an enquiry under Schedule 1A
+The conclusion that the relief could not diminish the tax chargeable and payable for 2007/08 is central to the Revenues contention that it was entitled to initiate an enquiry under Schedule 1A to TMA, which allowed the postponement of relief until the completion of the enquiry (Schedule 1A, paragraph 4(3)).
+But Mr Gordon submitted that the Revenue might enquire only under section 9A of TMA, which allows an officer to enquire into a return or an amendment of the return (section 9A(1) and (5)).
+That enquiry extends to: anything contained in the return, or required to be contained in the return, including any claim or election included in the return, (Schedule 9A, paragraph (4)).
+He argued that section 42(11) excluded the possibility of a Schedule 1A enquiry.
+That sub section provides: Schedule 1A to this Act shall apply as respects any claim which (a) is made otherwise than by being included in a return under section 8, 8A or 12AA of this Act.
+Mr Gordons submission was attractive in its simplicity.
+The word return in the TMA should be given its ordinary meaning.
+It was defined in section 118 (unless the context otherwise required) as including any statement or declaration under the Taxes Acts.
+The claim was made in Mr Cotters tax return and so Schedule 1A could not apply.
+The Revenue could enquire only under section 9A and it had not done so.
+I recognise the force of that submission, which found favour in the Court of Appeal.
+Treating everything in the tax return form as the tax return has the benefit of keeping simple both the process of self assessment and the jurisdictional boundary between the specialist tax tribunal and the courts.
+But, as Ms Simler explained on behalf of the Revenue, it exposes the Revenue to irrelevant claims made in the tax return form which have no merit and which serve only to postpone the payment of tax which is payable.
+There was, she suggested, a risk that the Court of Appeals decision would encourage marketed tax avoidance schemes which would give a cash flow advantage to taxpayers, even if the schemes were ultimately found to be ineffective.
+The Revenues argument was that a claim was included in a return for the purposes of sections 8(1), 9, 9A and 42 of TMA only if it affected or as Ms Simler put it, could feed into, the calculation of tax payable in respect of the particular year of assessment.
+In judging the rival contentions it is in my view important to recall the
+sequence of events which I set out in paragraphs 2 7 above.
+First, Mr Cotter gave information relating to his tax affairs in his initial return form.
+But he did not carry out the calculation of the tax which he was due to pay for 2007/08.
+Secondly, the Revenue made that calculation.
+Thirdly, Mr Cotter then provided the information about his provisional loss relief claim in his amendment of the tax return.
+Fourthly, the Revenue reviewed the return and confirmed its assessment of the tax due for 2007/08, treating the claimed relief as irrelevant to that assessment.
+Finally, Mr Cotters advisers disagreed with the Revenues view but did not seek to amend the tax return (under section 9ZA of TMA) by carrying out their own calculation of tax.
+In particular, I do not construe the letter of 30 January 2009 from Mr Cotters accountants as an amendment of his tax return.
+The accountants did not purport to produce a self assessment calculation.
+Their amendment of the return was confined to the intimation of the claim.
+The statement in the letter of 30 January 2009 that no further 2007/08 taxes would be payable was merely an assertion in a covering letter.
+Where, as in this case, the taxpayer has included information in his tax return but has left it to the Revenue to calculate the tax which he is due to pay, I think that the Revenue is entitled to treat as irrelevant to that calculation information and claims, which clearly do not as a matter of law affect the tax chargeable and payable in the relevant year of assessment.
+It is clear from sections 8(1) and 8(1AA) of TMA that the purpose of a tax return is to establish the amounts of income tax and capital gains tax chargeable for a year of assessment and the amount of income tax payable for that year.
+The Revenues calculation of the tax due is made on behalf of the taxpayer and is treated as the taxpayers self assessment (section 9(3) and (3A) of TMA).
+The tax return form contains other requests, such as information about student loan repayments (page TR2), the transfer of the unused part of a taxpayers blind persons allowance (page TR3) or claims for losses in the following tax year (box 3 on page Ai3) which do not affect the income tax chargeable in the tax year which the return form addresses.
+The word return may have a wider meaning in other contexts within TMA.
+But, in my view, in the context of sections 8(1), 9, 9A and 42(11)(a) of the TMA, a return refers to the information in the tax return form which is submitted for the purpose of establishing the amounts in which a person is chargeable to income tax and capital gains tax for the relevant year of assessment and the amount payable by him by way of income tax for that year (section 8(1) TMA).
+In this case, the figures in box 14 on page CG1 and in box 3 on page Ai3
+were supplemented by the explanations which Mr Cotter gave of his claim in the boxes requesting any other information and additional information in the tax return.
+Those explanations alerted the Revenue to the nature of the claim for relief.
+It concluded, correctly, that the claim under section 128 of ITA in respect of losses incurred in 2008/09 did not alter the tax chargeable or payable in relation to 2007/08.
+The Revenue was accordingly entitled and indeed obliged to use Schedule 1A of TMA as the vehicle for its enquiry into the claim (section 42(11)(a)).
+Matters would have been different if the taxpayer had calculated his liability to income and capital gains tax by requesting and completing the tax calculation summary pages of the tax return.
+In such circumstances the Revenue would have his assessment that, as a result of the claim, specific sums or no sums were due as the tax chargeable and payable for 2007/08.
+Such information and self assessment would in my view fall within a return under section 9A of TMA as it would be the taxpayers assessment of his liability in respect of the relevant tax year.
+The Revenue could not go behind the taxpayers self assessment without either amending the tax return (section 9ZB of TMA) or instituting an enquiry under section 9A of TMA.
+It follows that a taxpayer may be able to delay the payment of tax by claims which turn out to be unfounded if he completes the assessment by calculating the tax which he is due to pay.
+Accordingly, the Revenues interpretation of the expression return may not save it from tax avoidance schemes.
+But what persuades me that the Revenue is right in its interpretation of return is that income tax is an annual tax and that disputes about matters which are not relevant to a taxpayers liability in a particular year should not postpone the finality of that years assessment.
+Jurisdiction
+The First tier Tribunal (the tribunal), as the successor of the general and special commissioners, has exclusive jurisdiction to hear taxpayers appeals against assessments to tax (Autologic Holdings plc v Inland Revenue Commissioners [2006] 1 AC 118, Lord Nicholls of Birkenhead at paras 12 15, Lord Millett at para 62 and Lord Walker of Gestingthorpe at para 84).
+But, as explained below, we are not dealing in the present case with an assessment to tax in respect of a particular year of assessment, but how the Revenue has dealt with a loss relief claim relating to a later year.
+The Revenue did not need to amend Mr Cotters return form (under section 9ZB of TMA) in order to calculate the tax which it assessed as payable for 2007/08.
+There was therefore no rejection by Mr Cotter of a Revenue correction (under section 9ZB(4) of TMA).
+There was no section 9A enquiry.
+The Revenue did not have to amend the self assessment under section 9C of TMA during such an enquiry and there was no appeal against such an amendment of the return by the Revenue (under section 31 of TMA).
+The only appeal which Mr Cotters accountants made was an appeal by letter of 17 April 2009 against a late payment surcharge (under section 59C(7) of TMA), because he claimed that his losses meant that no tax was due.
+As a result, the only issue for the tribunal was the late payment surcharge.
+Nothing else occurred to engage the jurisdiction of the tribunal.
+The Revenues position was simple: its calculation, based on the information which Mr Cotter had included in his tax return form, showed that he was due to pay tax in the sum it assessed on his behalf for 2007/08.
+The tax return form for 2007/08 did not show a loss claim which reduced Mr Cotters liability to tax in respect of that tax year.
+As the Revenue lawfully commenced an enquiry under Schedule 1A of TMA and elected (under paragraph 4(3)(a) of that Schedule) not to give effect to the claim until the end of the enquiry, there was no postponement of payment of the tax due on 31 January 2009 by giving effect to the claim in the interim.
+The taxpayer was obliged to pay the amount of tax which had been assessed less any payment to account (section 59B of TMA) and the Revenue was entitled to raise collection proceedings in the county court (section 66 of TMA).
+I agree with that position.
+In this case, the county court was not asked to rule on the validity of the claim for loss relief.
+Nor was it concerned with any appeal against the assessment to tax.
+It was asked to determine in collection proceedings whether the taxpayers claim for relief for losses incurred in 2008/09, which he had made in his tax return form for 2007/08, constituted a defence to the Revenues claim for immediate payment of the tax which it had calculated as payable in respect of 2007/08.
+In my view, the county court and the High Court had jurisdiction to determine that issue which did not trench upon the tribunals exclusive jurisdiction.
+How the system works
+The Court of Appeal expressed concern about the risk of satellite litigation and delays in tax collection if the Revenue were correct in its submission on the meaning of return in the relevant provisions.
+For that reason, it is appropriate that I should say something about how, as I see it, the system works.
+Where a taxpayer makes a claim for relief in a tax return form which is on its face relevant to the year of assessment (as, for example, when he claims employment loss relief in year 2) or where the taxpayer chooses under section 9(1) of TMA to calculate the amount of tax that he is due to pay, and allows for the relief in his calculation, the Revenue, if it disagrees, will have the option of correcting the return under section 9ZB of TMA, which extends to errors of principle.
+If the taxpayer rejects the correction (under section 9ZB(4)), that correction has no effect.
+The Revenue may give notice of an enquiry under section 9A.
+When the Revenue completes the enquiry by issuing a closure notice under section 28A, the taxpayer may appeal a conclusion stated or amendment made in the closure notice (under section 31(1)(b) of TMA).
+Similarly if the Revenue amends the self assessment during the enquiry under section 9C to prevent loss of tax, the taxpayer may appeal to the tribunal (section 31(1)(a)).
+Until this procedure is complete, effect is given to the claim, unless it results in a repayment (section 59B(4A) of TMA).
+Where the taxpayer chooses to let the Revenue calculate the tax due but includes a claim for relief in a tax return form (whether from the outset or by amendment) which is clearly not relevant to the calculation of tax for the particular year of assessment, the Revenue may ignore the claim in its calculation of the tax under section 9(3) of TMA.
+It treats it as a claim made otherwise than in a return and Schedule 1A to TMA applies (section 42(11)(a) of TMA).
+In the procedure under that Schedule, if the Revenue considers that the claim contains obvious errors, it can amend the claim (paragraph 3).
+If satisfied that the claim is valid, the Revenue is to give effect to the claim promptly (paragraph 4).
+If not so satisfied, the Revenue may enquire into the claim and not give effect to it until the enquiry is completed (paragraphs 4(3) and 5).
+Thus the Revenue may collect the tax due for a year of assessment on the basis that the claim is not effective.
+On completion of the enquiry (paragraph 7), the taxpayer can notify the Revenue of an appeal (paragraph 9) and thus place the dispute before the tribunal.
+The Revenues submission, which I have accepted, that some entries in a tax return form are not part of the tax return for the purposes of, among others, sections 9 and 9A of TMA, may create avoidable uncertainty to taxpayers and their advisers.
+But that uncertainty could be removed if the return form which the Revenue prescribes (section 113 TMA) were to make clear which boxes requesting information were not relevant to the calculation of tax due in the particular year of assessment.
+In particular, the Revenue could make this clear where the form provides for the intimation of stand alone claims which relate to another tax year.
+Conclusion
+As I have concluded that the Revenue did not have to give effect to the claim for relief before the conclusion of the enquiry, I do not need to consider a submission, which the Revenue sought to raise late in the day, that section 35 of the Crown Proceedings Act 1947 and CPR Rule 66.4 prevent a taxpayer from pleading set off against the Crown.
+The claim for relief based on an employment related loss in 2008/09 did not provide a defence to the Revenues demand for the payment of the tax assessed for 2007/08.
+I would therefore allow the appeal so as to restore paragraphs 1 and 2 of David Richards Js order of 5 May 2011.
diff --git a/UK-Abs/train-data/judgement/uksc-2012-0122.txt b/UK-Abs/train-data/judgement/uksc-2012-0122.txt
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+Information is the key to sound decision making, to accountability and development; it underpins democracy and assists in combatting poverty, oppression, corruption, prejudice and inefficiency.
+Administrators, judges, arbitrators, and persons conducting inquiries and investigations depend upon it; likewise the press, NGOs and individuals concerned to report on issues of public interest.
+Unwillingness to disclose information may arise through habits of secrecy or reasons of self protection.
+But information can be genuinely private, confidential or sensitive, and these interests merit respect in their own right and, in the case of those who depend on information to fulfil their functions, because this may not otherwise be forthcoming.
+These competing considerations, and the balance between them, lie behind the issues on this appeal.
+This appeal concerns the relationship between the Charity Commission, a public authority responsible for inquiries in relation to which it requires information from third parties, and the press, concerned to understand and report on the Charity Commissions performance of its role.
+It also concerns the relationship between the Freedom of Information Act 2000 (the FOIA) and the statutory and common law position regarding the disclosure of information outside the scope of the FOIA.
+The FOIA provides a framework within which there are rights to be informed, on request, about the existence of, and to have communicated, information held by any public authority.
+But the framework is not all embracing.
+First, these rights do not apply at all in cases which are described as absolute exemptions (see sections 2(1)(a) and 2(1)(b)) and are subject to a large number of other carefully developed qualifications.
+Second, as the other side of this coin, section 78 of the FOIA specifies that nothing in it is to be taken to limit the powers of a public authority to disclose information held by it.
+In the present case, Mr Kennedy, an experienced journalist with The Times, has been long concerned to investigate and understand more about three inquiries conducted under the Charities Act 1993 by the Charity Commission in relation to an appeal (The Mariam Appeal) founded by Mr George Galloway MP in 1998 and operated until 2003.
+He views the two brief reports by the Charity Commission on these inquiries as leaving significantly unclear the basis upon which the Commission conducted the inquiries, the information on which it acted, its communications with other public authorities and its conclusions.
+On 8 June 2007 he made corresponding requests for disclosure of documentation by the Charity Commission under the FOIA.
+In response, the Charity Commission points to an absolute exemption contained in section 32(2) of the FOIA.
+This exempts the Charity Commission from any duty to disclose any document placed in its custody or created by it for the purposes of an inquiry which it has in the public interest conducted in the exercise of its functions.
+The Charity Commission submits that this exemption lasts until the document is destroyed or, if the document is one that ought to be publicly preserved, that it lasts for up to 30 (or in future 20) years under the Public Records Act 1958, section 3 as amended for the future by the Constitutional Reform and Governance Act 2010, section 45(1).
+Section 32 is a section dealing with information held by courts and persons conducting an inquiry or arbitration.
+Its intention was not that such information should not be disclosed.
+Its intention was to take such information outside the FOIA.
+Any question as to its disclosure was to be addressed under the different and more specific schemes and mechanisms which govern the operations of and disclosure by courts, arbitrators or persons conducting inquiries.
+With regard to the Charity Commission the relevant scheme and mechanism is found in the Charities Act 1993, as amended by the Charities Act 2006 (since replaced by the Charities Act 2011), the construction of which is informed by a background of general common law principles.
+In the present case, the focus has, however, been on the FOIA as if it were an exhaustive scheme.
+The argument has been, in effect, that, unless a prima facie right to disclosure can be found in the FOIA, United Kingdom law must be defective, and in breach of what is said to be the true interpretation of article 10 of the European Convention on Human Rights.
+But that misreads the statutory scheme, and omits to take into account the statutory and common law position to which, in the light of sections 32 and 78 in particular, attention must be addressed.
+The Court of Appeal thus correctly held in R (Guardian News and Media Ltd) v City of Westminster Magistrates Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618 that it was quite wrong to infer from the exclusion by section 32 of court documents from the FOIA that Parliament intended to preclude the court from permitting a non party to have access to such documents if the court considered such access to be appropriate under the open justice principle (para 74).
+That was a case concerning court documents, but the same general point applies to inquiry documents: section 32 is no answer to any power which the holder of an inquiry may have to disclose, or which the court may have to order disclosure in respect of, inquiry documents outside section 32.
+In the present case, Mr Kennedys claim to disclosure by the Charity Commission has only ever been pursued by reference to the FOIA.
+At the outset, before it referred to section 32, the Charity Commission did on 4 July 2007 explain in a little detail the factors which it saw as relevant to any issue of disclosure.
+It said: There is a strong public interest in the Commission being able to carry out its functions which is expressly recognised by the [FOIA] in section 31(2)(f) (h).
+Section 31 exempts from disclosure information which, if released, would prejudice the Commissions functions in protecting charities against misconduct or mismanagement (whether by trustees or other persons) in their administration, protecting the property of charities from loss or misapplication and recovering the property of charities.
+The Commission relies very much on the co operation of and liaison with a variety of third parties in undertaking these functions and routine disclosure of regulatory communication between the Commission and these parties would adversely affect the Commission in its work.
+The competing public interest is for transparency of the decisions and reasons for them so as to promote public confidence in charities.
+This is tempered by the need for confidentiality in the exchange of information.
+In my view, at this time, balance of the public interest weighs more strongly with securing the Commissions ability to carry out its functions efficiently and therefore lies in withholding the information.
+Outside the FOIA, and in particular if this had been the response given to a claim for disclosure under the Commissions Charities Act powers and duties, the response could have been tested by judicial review on ordinary public law principles.
+Instead, Mr Kennedys claim was and has only ever been put on the basis that the FOIA must be construed or remodelled so as to give him a claim under that Act.
+In these circumstances, the issues directly arising on this appeal are limited.
+The first is whether section 32(2) contains, as a matter of ordinary construction, an absolute exemption which continues after the end of an inquiry.
+Mr Philip Coppel QC representing Mr Kennedy submits that it does not.
+That failing, he relies, second, on what he describes as a current direction of travel of Strasbourg case law for a proposition that article 10 of the Convention imposes a positive duty of disclosure on public authorities, at least towards public watchdogs like the press, in respect of material of genuine public interest, subject to the exemptions permitted by article 10(2).
+On that basis, and in the light of the duty in section 3 of the Human Rights Act 1998 to interpret primary legislation so far as it is possible to do so . in a way which is compatible with the Convention rights, he submits that section 32 should be read down so that the absolute exemption ceases with the end of the relevant inquiry.
+Alternatively, taking up a point put by the Court, he submits that the absolute exemption should from that moment be read as a qualified exemption (requiring a general balancing of the competing public interests), along the lines provided by section 2(2)(b) of the FOIA.
+Thirdly, all those submissions failing, he submits that the Court should make a declaration of incompatibility in respect of section 32(2).
+Fourthly, however, despite the limitations in the way in which the case has been presented, it will, for reasons already indicated, be appropriate and necessary to consider the statutory and common law position outside the scope of the FOIA.
+As I have stated, the effect of section 32 is not to close those off, but rather to require attention to be directed to them.
+In a judgment dated 20 March 2012 differing from the First tier Tribunal, the Court of Appeal accepted that section 32 applied and dismissed Mr Kennedys claim accordingly.
+The present appeal is brought against that dismissal.
+For reasons contained in paras 24 to 42, Mr Kennedys appeal falls in my opinion to be dismissed, even if Mr Kennedys case on the scope of article 10 is to be accepted at its highest.
+But, for completeness, I consider article 10 in paras 43 to 100, while para 101 states my overall conclusions on the issues argued.
+The background in more detail
+The bulk of the information which Mr Kennedy seeks is to be found in documents prepared by other public authorities or private persons or bodies for the purposes of the Charity Commission inquiry.
+The information requested also includes some pre existing documents and communications between the Charity Commission, other public authorities, other entities and Mr Galloway himself.
+The information is all of potential public interest.
+The First tier Tribunal accepted this in a report dated 18 November 2011 made at the Court of Appeals request in this case.
+The First tier Tribunal was not however concerned with the question, which it left entirely open, whether the information should in the public interest be disclosed it decided that section 32 should be read down so as to cease to apply after the end of the inquiry, because the rights and interests of the Charity Commission and others co operating with it in the inquiry would be fully protected by the suite of other exemptions in Part II of FOIA.
+The information also concerns a high profile and, to use Mr Kennedys word, controversial MP.
+It concerns a public appeal on behalf of an organisation which the Commission (confirming Mr Kennedys prior suspicions) found to be a charity which should have been, but was not, registered and operated under the Charities Act 1993 as amended.
+Investigations by Mr Kennedy himself led to the first Charity Commission inquiry in June 2003.
+This was in turn followed by a second inquiry in November 2003 and (in the light of reports published by the UN Independent Inquiry Committee and US Senate Committee on Homeland Security and Governmental Affairs Permanent Sub committee on Investigations in October 2005) a third inquiry in December 2005.
+The report on the first and second inquiries confirmed Mr Kennedys belief that appeal monies had been used by Mr Galloway on travel and political campaigning to end the sanctions against Iraq and found that other monies had been received by other trustees as unauthorised benefits in the form of salary payments.
+Mr Kennedy maintains that these uses of funds were contrary to Mr Galloways original stated aim that appeal funds would be used first to treat Miss Mariam Hamza and thereafter to treat other Iraqi children also suffering from leukaemia, and that the inquiries, when holding that such use fell within or advanced the charitys purposes, failed properly to address this aspect.
+He also maintains that, in closing the inquiries without taking or proposing further action, the Charity Commission showed a lack of interest in investigating what had become of the appeal funds.
+The report on the third inquiry found that the source of some of the appeal funds consisted in monies paid in connection with contracts which breached the UN sanctions against Iraq.
+This occurred in circumstances where one trustee (Mr Zureikat) knew and Mr Galloway may also have known of the connection, a statement which Mr Kennedy understandably wishes to probe.
+Mr Galloway denounced this report, as containing sloppy, misleading and partial passages which could have been cleared up, if the Commission had bothered to interview me during the course of its inquiry.
+But a Commission spokesman subsequently informed Mr Kennedy that Mr Galloway, although giving written answers to questions posed, had failed to take up an offer of a meeting.
+Mr Kennedy wishes to follow up this discrepancy.
+More generally, Mr Kennedy says that the very brief and unspecific nature of the two Commission reports and the conclusions reached, basically to leave matters as they were, raise questions about the manner in which the Charity Commission performed one of its central functions.
+The Charity Commission, supported by the Secretary of State for Justice as well as by the Information Commissioner as interveners, maintains that Mr Kennedys requests relate to information which enjoys absolute exemption from disclosure under section 32 read with section 2(3) of the FOIA.
+Other possible heads (such as sections 27, 31, 40, 41 and 42: see paras 17 to 21 below), upon which the Charity Commission would, if necessary, have resisted disclosure of some or all of the material sought under the FOIA, have not therefore been adjudicated upon.
+As noted in para 11 above, the First tier Tribunal was not instructed to, and did not, address the question whether the information should be disclosed on a balancing of the relevant public and private interests under such heads.
+Mr Kennedy has in fact refined his requests so as expressly to disclaim any wish to see information received from or given to a foreign state or international organisation as well as any information in respect of which the House of Commons claims exemption under section 34.
+The statute law
+Section 1 of the FOIA provides a general right to request, be informed of the existence of and have communicated information held by a public authority, but the right has effect subject to sections 2, 12 and 14.
+Section 2 provides: 2.
+In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that (a) the information is exempt information by virtue of a provision conferring absolute exemption, or (b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.
+Section 12 enables limits to be set to the costs which public authorities are bound to incur in complying with any request for information, and different amounts may be set in relation to different cases.
+Section 19 requires every public authority to adopt, maintain, review and publish information about its scheme for the publication of information.
+Part II (sections 21 to 44) lists a series of classes of exempt information, some absolute, some not.
+Section 2(3) lists the sections in Part II which are to be regarded as conferring absolute exemption.
+Among these is section 32: 32. (l) Information held by a public authority is exempt information if it is held only by virtue of being contained in (a) any document filed with, or otherwise placed in the custody of, a court for the purposes of proceedings in a particular cause or matter, (b) any document served upon, or by, a public authority for the purposes of proceedings in a particular cause or matter, or (c) any document created by (i) a court, or (ii) a member of the administrative staff of a court, for the purposes of proceedings in a particular cause or matter. (2) Information held by a public authority is exempt information if it is held only by virtue of being contained in (a) any document placed in the custody of a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration, or (b) any document created by a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration.
+Other classes of absolutely exempt information include: under section 21, information reasonably accessible to the applicant otherwise than under the Act; under section 23, information directly or indirectly supplied by or relating to the Security and Secret Intelligence Services, the Government Communications Headquarters, the special forces and a list of tribunals and other authorities associated with security matters; under section 34, information where necessary to avoid an infringement of the privileges of either House of Parliament; and, under section 41, information obtained by the public authority from any other person (including another public authority), where the disclosure of the information to the public would constitute a breach of confidence actionable by that or any other person.
+Part II makes further provision for exempt (but not absolutely exempt) information, viz: under sections 24 to 26, information required for safeguarding national security and potentially prejudicial to the British Islands or any colonys defence; under sections 27 and 28, information potentially prejudicial to the United Kingdoms international relations, and relations between the devolved administrations; under section 29, for information potentially prejudicial to the United Kingdoms and any such administrations economic interests, and under section 35, information relating to the formulation of government policy and the effective conduct of public affairs.
+Section 31 concerns information, not absolutely exempt, described as relating to law enforcement: 31. (1) Information which is not exempt information by virtue of section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice (a) the prevention or detection of crime, (b) the apprehension or prosecution of offenders, (c) the administration of justice, (d) the assessment or collection of any tax or duty or of any imposition of a similar nature, (e) the operation of the immigration controls, (f) the maintenance of security and good order in prisons or in other institutions where persons are lawfully detained, (g) the exercise by any public authority of its functions for any of the purposes specified in subsection (2), (h) any civil proceedings which are brought by or on behalf of a public authority and arise out of an investigation conducted, for any of the purposes specified in subsection (2), by or on behalf of the authority by virtue of Her Majesty's prerogative or by virtue of powers conferred by or under an enactment, or (i) any inquiry held under the Fatal Accidents and Sudden Deaths Inquiries (Scotland) Act 1976 to the extent that the inquiry arises out of an investigation conducted, for any of the purposes specified in subsection (2), by or on behalf of the authority by virtue of Her Majesty's prerogative or by virtue of powers conferred by or under an enactment. (2) The purposes referred to in subsection (1)(g) to (i) are (a) the purpose of ascertaining whether any person has failed to comply with the law, (b) the purpose of ascertaining whether any person is responsible for any conduct which is improper, (c) the purpose of ascertaining whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise, (d) the purpose of ascertaining a person's fitness or competence in relation to the management of bodies corporate or in relation to any profession or other activity which he is, or seeks to become, authorised to carry on, (e) the purpose of ascertaining the cause of an accident, (f) the purpose of protecting charities against misconduct or mismanagement (whether by trustees or other persons) in their administration, (g) the purpose of protecting the property of charities from loss or misapplication, (h) the purpose of recovering the property of charities, (i) the purpose of securing the health, safety and welfare of persons at work, and (j) the purpose of protecting persons other than persons at work against risk to health or safety arising out of or in connection with the actions of persons at work.
+Sections 40 (a part absolute exemption under section 2(3)(f)) and 42 (a non absolute exemption) provide: 40 (1) Any information to which a request for information relates is exempt information if it constitutes personal data of which the applicant is the data subject. (2) Any information to which a request for information relates is also exempt information if (a) it constitutes personal data which do not fall within subsection (l), and (b) either the first or the second condition below is satisfied. 42. (l) Information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality of communications could be maintained in legal proceedings is exempt information.
+The Charity Commission was at the material times subject to the Charities Act 1993 (since replaced by the Charities Act 2011).
+The 1993 Act, as amended, provided: 1B (1) The Commission has the objectives set out in subsection (2). (2) The objectives are 1 The public confidence objective. 2 The public benefit objective. 3 The compliance objective. 4 The charitable resources objective. 5 The accountability objective. (3) Those objectives are defined as follows 1 The public confidence objective is to increase public trust and confidence in charities. 2 The public benefit objective is to promote awareness and understanding of the operation of the public benefit requirement. 3 The compliance objective is to promote compliance by charity trustees with their legal obligations in exercising control and management of the administration of their charities. 4 The charitable resources objective is to promote the effective use of charitable resources. 5 The accountability objective is to enhance the accountability of charities to donors, beneficiaries and the general public. 1C (1) The Commission has the general functions set out in subsection (2). (2) The general functions are 1 Determining whether institutions are or are not charities. 2 Encouraging and facilitating the better administration of charities. 3 Identifying and investigating apparent misconduct or mismanagement in the administration of charities and taking remedial or protective action in connection with misconduct or mismanagement therein. 4 Determining whether public collections certificates should be issued, and remain in force, in respect of public charitable collections. 5 Obtaining, evaluating and disseminating information in connection with the performance of any of the Commission's functions or meeting any of its objectives. 6 Giving information or advice, or making proposals, to any Minister of the Crown on matters relating to any of the Commission's functions or meeting any of its objectives. 1D (1) The Commission has the general duties set out in subsection (2). (2) . 4 In performing its functions the Commission must, so far as relevant, have regard to the principles of best regulatory practice (including the principles under which regulatory activities should be proportionate, accountable, consistent, transparent and targeted only at cases in which action is needed). 1E (1) The Commission has power to do anything which is calculated to facilitate, or is conducive or incidental to, the performance of any of its functions or general duties. 8 (1) The Commission may from time to time institute inquiries with regard to charities or a particular charity or class of charities, either generally or for particular purposes, but no such inquiry shall extend to any exempt charity except where this has been requested by its principal regulator. (2) The Commission may either conduct such an inquiry itself or appoint a person to conduct it and make a report to the Commission. (6) Where an inquiry has been held under this section, [the Commission] may either (a) cause the report of the person conducting the inquiry, or such other statement of the results of the inquiry as the Commission thinks fit, to be printed and published, or (b) publish any such report or statement in some other way which is calculated in the Commission's opinion to bring it to the attention of persons who may wish to make representations to the Commission about the action to be taken. 10A (1) Subject to subsections (2) and (3) below, the Commission may disclose to any relevant public authority any information received by the Commission in connection with any of the Commission's functions (a) if the disclosure is made for the purpose of enabling or assisting the relevant public authority to discharge any of its functions, or (b) if the information so disclosed is otherwise relevant to the discharge of any of the functions of the relevant public authority. (2) In the case of information disclosed to the Commission under section 10(1) above, the Commission's power to disclose the information under subsection (1) above is exercisable subject to any express restriction subject to which the information was disclosed to the Commission. (3) Subsection (2) above does not apply in relation to Revenue and Customs information disclosed to the Commission under section 10(1) above; but any such information may not be further disclosed (whether under subsection (1) above or otherwise) except with the consent of the Commissioners for Her Majesty's Revenue and Customs. (4) Any responsible person who discloses information in contravention of subsection (3) above is guilty of an offence . (5) lt is a defence for a responsible person charged with an offence under subsection (4) above of disclosing information to prove that he reasonably believed (a) that the disclosure was lawful, or (b) that the information had already and lawfully been made available to the public. (7) ln this section responsible person means a person who is or was (a) a member of the Commission, (b) a member of the staff of the Commission, (c) a person acting on behalf of the Commission or a member of the staff of the Commission, or (d) a member of a committee established by the Commission.
+Article 10 (Freedom of expression) of the Human Rights Convention scheduled to the Human Rights Act 1998 reads: 1.
+Everyone has the right to freedom of expression.
+This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
+This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2.
+The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
+The construction of section 32 of the FOIA
+The first issue identified in para 9 above turns on whether the phrase in section 32(1) FOIA for the purposes of proceedings in a particular cause or matter and in section 32(2) for the purposes of the inquiry or arbitration represents a current or an historical condition for absolute exemption.
+More fully, do the relevant purposes relate to the time at which the request for disclosure is made and the document is held by the court or by the inquiry or arbitrator(s), as the case may be? Or do they relate to the earlier time at which the document was (in the case of a court) filed with or otherwise placed in its custody or served upon or by the relevant public authority or created by a member of the courts administrative staff or (in the case of an inquiry or arbitration) placed in the custody of, or created by, the person conducting the inquiry or arbitration? The Court of Appeal held the latter: the absolute exemption exists by reference to historical, rather than current, purposes.
+Mr Coppel accepts that there can be no distinction in this respect between section 32(1) and section 32(2).
+The concession was in my opinion plainly correct.
+The phrases relating to the relevant purposes are similarly placed and must on the face of it have been intended to attach to the same point in time.
+The practical impact of the phrases is, of course, somewhat different in each case.
+In the case of a court, the rules of court and (in the case of superior courts) the exercise of the courts inherent jurisdiction mean that the court can at any time during or after the conclusion of proceedings hear and adjudicate upon applications for the release or disclosure of documents held in court or by court staff.
+The court will undertake a broad exercise, balancing the factors for and against public disclosure of court documents.
+In the case of an arbitration, there is a strong contractual presumption in favour of confidentiality and against non disclosure.
+But this may be overridden by a court where necessary to protect a partys rights against a third party or in other exceptional circumstances where justice requires: see e g Ali Shipping Corpn v Shipyard Trogir [1997] EWCA Civ 3054, [1999] 1 WLR 314; Department of Economic Policy and Development of the City of Moscow v Bankers Trust Co [2004] EWCA Civ 314, [2005] QB 207.
+In contrast, in the case of an inquiry by a public authority like the Charity Commission, the position depends upon the type of inquiry and the relevant statutory provisions under which it is held.
+A public authority which has held an inquiry may not of course continue to function or exist; the inquiry documents may then be held by a relevant Ministry within whose sphere the inquiry took place, and the relevant ministerial powers would then arise for consideration.
+But it is unnecessary to consider this situation in this case.
+Here the Charity Commission continues to exist, and was at the relevant time subject to the Charities Act 1993 as amended (since replaced by the Charities Act 2011).
+I shall consider the implications of this below.
+For present purposes, however, what is important is that section 32 treats all such inquiries in similar fashion to court and arbitration proceedings; all are subject to the same absolute exemption from disclosure under the FOIA.
+Coming therefore directly to the interpretation under ordinary principles of section 32, the critical phrase (for the purposes of .) is repeated in relation to and placed at the end of each head of documents identified.
+It follows and, read naturally, qualifies each such head: that is, in the case of a court, any document filed or otherwise placed or served or created and, in the case of an inquiry or arbitration, any document placed or created.
+To read the phrase as referring back to the initial words of each subsection Information held is, literally, far fetched.
+Had that been meant, the draftsman could and would surely have simplified each subsection, by inserting the phrase once only in each subsection, immediately after the words Information held . or, less neatly, after the words if it is held .
+The comma which appears in each of subsections (2)(a) and (b) is explained by the interposition in those subsections of the words conducting an inquiry or arbitration between placed in the custody of a person and the phrase for the purposes of the inquiry or arbitration.
+It makes clear that the last phrase qualifies placed or created and not conducting.
+In the absence of any equivalent words to conducting an inquiry or arbitration in subsection (1), no such comma was necessary or appropriate.
+As to the more general merits of the rival constructions, a conclusion that, immediately after the end of any court proceedings, arbitration or inquiry a previously absolute exemption ceases to have effect would, for the reason set out in para 6 above, run contrary to the general scheme of section 32, particularly obviously so in relation to court and arbitration proceedings, but also in relation to inquiries.
+It would furthermore create an evident internal anomaly within the FOIA.
+The information would cease to enjoy any form of exemption under section 32 as soon as the court proceedings, inquiry or arbitration ended.
+From that moment, the information would not even enjoy the benefit of a balancing of the public interest in disclosure against other interests provided by section 2(2)(b).
+Further, no ordinary principle of construction could lead to a reading whereby the continuing absolute exemption provided by section 32 was converted into an ordinary exemption within section 2(2)(b) with effect from the close of the relevant court proceedings, arbitration or inquiry.
+Other sections, notably section 31 (law enforcement), section 40 (personal information) and section 41 (information provided in confidence), would afford only limited grounds for refusing disclosure (in contrast to the general position otherwise applicable to, at least, court and arbitration documents: see para 26 above).
+Some assistance, marginal rather than decisive, as to Parliaments likely understanding when it enacted section 32 is to be found in Part VI of the FOIA.
+Under section 62(1), a record becomes a historical record at the end of 30 years (or now by amendment 20 years) beginning with the year of its creation.
+Under section 63(1): Information contained in a historical record cannot be exempt information by virtue of section 28, 30(1), 32, 33, 35, 36, 37(1)(a), 42 or 43.
+The natural inference is that it was contemplated that information falling within section 32 would continue to be exempt for 30 years.
+It is unlikely that the reference to section 32 was included simply to cover the possible existence of documents from court, arbitration or inquiry proceedings rivalling in length those in Jarndyce v Jarndyce or cases where a court, arbitration or inquiry considers documents themselves over 30 years old.
+Attention was drawn to the Inquiries Act 2005, which has since 2005 modified the application of section 32 in relation to some inquiries, though not those of the type undertaken by the Charity Commission.
+It enables Ministers to set up formal, independent inquiries relating to particular events which have caused or have potential to cause public concern, or where there is public concern that particular events may have occurred.
+Not all inquiries fall into this category and there is no statutory requirement on a Minister to use the 2005 Act even if they do.
+Where it is used, section 41(1)(b) provides for rules dealing with the return or keeping, after the end of an inquiry, of documents given to or created by the inquiry, while section 18(3) provides that section 32(2) of the FOIA does not apply in relation to information contained in documents passed to and held by a public authority pursuant to rules made under section 41(1)(b) of the 2005 Act.
+On this formulation section 32(2) would still apply to documents created by the person conducting the 2005 Act inquiry: see section 32(2)(b).
+But documents placed in the inquirys custody for inquiry purposes would potentially be disclosable under the FOIA.
+Section 19(1) and (3) of the 2005 Act contain the Acts own regime enabling restrictions to be imposed by the relevant Minister or the chairman of the inquiry on disclosure or publication of evidence or documents given, produced or provided to an inquiry, where conducive to the inquiry fulfilling its terms of reference or necessary in the public interest.
+Section 19(4) specifies particular matters which are to be taken into account when considering whether any and what restrictions should be imposed.
+They reflect potentially competing interests naturally relevant to any such decision: on the one hand, the allaying of public concern and, on the other, any risk of harm or damage, by disclosure or publication; confidentiality; impairment of the efficiency or effectiveness of the inquiry; and cost.
+Restrictions so imposed may continue in force indefinitely: section 20(5), but this is subject to a provision that, after the end of the inquiry, disclosure restrictions do not apply to a public authority in relation to information held by the authority otherwise than as a result of the breach of any such restrictions: section 20(6).
+The scheme of the Inquiries Act 2005 was therefore deliberately different from that which, as a matter of straightforward construction, applies under the FOIA in respect of a Charity Commission inquiry.
+As a matter of law, the position under the 2005 Act cannot affect the proper construction of the earlier FOIA in relation to Charity Commission inquiries.
+Nor, pace Lord Wilsons views in para 193, can Parliaments passing in 2005 of the Inquiries Act throw any light on what section 32 of the FOIA was intended to achieve regarding inquiries in 2000 when the 2005 Act was never conceived, let alone enacted.
+But, even if this were not so, the contrast would reinforce, rather than undermine, the conclusion reached regarding Charity Commission inquiries.
+Further, the contrast does not of itself mean that the position in relation to Charity Commission inquiries is unsatisfactory.
+It is, I repeat, necessary to look at the entire picture, which means not looking only at section 32 of the FOIA, but looking also at the statutory and common law position in respect of Charity Commission inquiries apart from section 32.
+In summary, as a matter of ordinary common law construction, the construction is clear: section 32 was intended to provide an absolute exemption which would not cease abruptly at the end of the court, arbitration or inquiry proceedings, but would continue until the relevant documents became historical records; that however does not mean that the information held by the Charity Commission as a result of its inquiries may not be required to be disclosed outside section 32 under other statutory and/or common law powers preserved by section 78 of the FOIA.
+Is article 10 of the Convention relevant when construing section 32?
+It is at this point that Mr Coppel, on behalf of Mr Kennedy, submits that, if the position on ordinary principles of construction is as stated in the previous paragraph, then section 32(2) must be read down to comply with article 10; in particular, that on that basis section 3 of the 1998 Act requires the exemption provided by section 32 to be read as ending at the same moment as the court, arbitration or inquiry proceedings, so that it only covers documentation held currently for the purposes of such proceedings.
+A possible variant of this submission (though not one which Mr Coppel actually explored) might be that the exemption should end at that moment only in the case of inquiry proceedings, while continuing thereafter in the case of court and arbitration proceedings.
+Further, if such reading down is not possible, Mr Coppel submits that a declaration of incompatibility is called for.
+I cannot accept any of these submissions.
+First, to move directly to article 10 is, as I have already indicated, mistaken.
+Section 32 leaves open the statutory and common law position regarding disclosure outside the FOIA, and that directs attention to the Charities Act.
+If the Charities Act entitles Mr Kennedy to disclosure or puts him in a position no less favourable regarding disclosure than that which should, in Mr Coppels submission, be provided under article 10, then there can be no basis for submissions that section 32 requires reading down in the light of or is inconsistent with article 10.
+Second, even if the Charities Act, read by itself, appeared on its face not fully to satisfy any rights to information which Mr Kennedy may enjoy under article 10, it does not follow that the fault lies in section 32, or that section 32 can or should be remoulded by the courts to provide such rights.
+On the contrary, in view of the clarity of the absolute exemption in section 32, the focus would be on the Charities Act and it would be necessary to read it as catering for the relevant article 10 rights.
+As will appear from what I say later (in paras 43 56 below) about the language of the Charities Act, there would be no difficulty about doing this.
+Lord Wilson doubts whether such a scheme would even comply with the Convention, going so far as to suggest that it would not be prescribed by law (para 199).
+I cannot accept this, and it would I believe have some remarkable (and far reaching) consequences.
+One obvious problem about Lord Wilsons approach is that his treatment of the Charities Act scheme is inconsistent with his treatment of court documents.
+In his paras 175 and 192, Lord Wilson holds up the position regarding court documents as a model.
+On his own analysis of the Charities Act position, the scheme regarding disclosure of court documents ought to be regarded as even less compliant with the principle that any such scheme must be in accordance with law.
+The courts discretion regarding documents not on the court file is not channelled by any published objectives, functions and duties comparable to those present in the Charities Act.
+The court is simply guided by the general principle of open justice and must act in accordance with any applicable Convention rights.
+This inconsistency leads into another more basic objection to Lord Wilsons approach, one of general importance to the role of the Convention rights in the United Kingdom.
+The development of common law discretions, to meet Convention requirements and subject to control by judicial review, has become a fruitful feature of United Kingdom jurisprudence.
+It is illustrated at the highest level by cases like Doherty v Birmingham City Council [2008] UKHL 57, [2009] AC 367, paras 55, 70, 84 84 and 133 135 welcomed by the European Court of Human Rights in Kay v United Kingdom [2011] HLR 13, para 73 and by Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 104, para 73.
+In those cases the House of Lords and Supreme Court modelled a common law discretion to meet the needs of article 8.
+No distinction can be drawn in the present context between the general nature of articles 8 and 10, each specifying prima facie rights in substantially over lapping terms in their respective paragraphs 1 subject to qualifications identified in their paragraphs 2.
+On Lord Wilsons approach this development of common law discretions to meet Convention requirements would be vulnerable to the reproach that there was no specific scheme nothing which could count as prescribed by law.
+There are, of course, situations in which, for reasons of consistency or accountability, the manner in which a discretion will be exercised needs to be spelled out in some form.
+But that is not so in the present context, as Lord Wilsons own endorsement of the position regarding court and arbitration documents indicates.
+Third, Mr Coppel seeks to meet the points made in paras 35 and 36 above by a submission that the FOIA must be regarded as the means by which the United Kingdom gives effect to any article 10 right which Mr Kennedy has; that it covers the field and confers a general entitlement to access to recorded information held by public authorities, while preserving limited other statutory rights under sections 21, 39 and 40 through which access is also routed; and that, if the FOIA fails in this way to give effect to any article 10 right or does so inappropriately, it interferes with the right and must be read down.
+But there is no basis for this submission there is no reason why any article 10 rights which Mr Kennedy may have need to be protected by any particular statute or route.
+Far from the FOIA being the route by which the United Kingdom has chosen to give effect to any rights to receive information which Mr Kennedy may have, it is clear that the United Kingdom Parliament has determined that any such rights should be located and enforced elsewhere.
+That is the intended effect of section 32, read with section 78.
+To recapitulate: in view of the clarity of the absolute exemption in section 32 and the provisions of section 78, the focus must be on the Charities Act; and if (contrary to conclusion in paras 57 100 below) Mr Kennedy has prima facie rights which are engaged under article 10(1), then it would be necessary to read the Charities Act compatibly with and as giving effect to such rights; and, further, there would be no difficulty about doing this.
+As I read his judgment (paras 225 to 233, especially para 229), Lord Carnwath does not disagree with any of these points.
+The difficulty he identifies is not that for which Mr Coppel argued (as set out in para 227 of Lord Carnwaths judgment) and not that the Charities Act cannot be read to give effect to any article 10 rights.
+It is that this appears to him a less advantageous approach than one which re writes the FOIA, section 32 in particular (see his paras 231 to 233).
+However, it is not a courts role to discard the scheme established by Parliament, simply because it may (in Lord Carnwaths view) involve a more cumbersome means of enforcing Convention rights than Parliament has established elsewhere.
+Fourth, I do not consider that article 10 would prove to add anything or anything significant to such rights to disclosure as could be enforced under the Charities Act without reference to article 10.
+I explain why below (in paras 43 56).
+I also note in this connection (para 49) that Lord Carnwath himself is influenced in his interpretation of the scope of article 10 by the view that it accords with recognised principles of domestic law (his para 218).
+Fifth, and for good measure, even if all these points are put on one side, I would not have accepted Mr Coppels submission that section 32 could or should in some way be read down in the light of article 10.
+Reading down section 32(2) so that it ceased to apply at the end of any inquiry would mean that the public interest test applicable under section 2(2)(b) of the FOIA would not apply.
+Section 2(2) as a whole only applies to information which is exempt.
+If article 10 were to mean that section 32(2) should be read down so as to cease to apply after an inquiry closes, then section 2(2) would at that point also cease to apply to the relevant information.
+A belated submission was made (after a post hearing question from the Court raised the point) that both sections 2(2) and 32(2) might be manipulated, so that after the close of an inquiry the previous absolute exemption provided by section 32 would become a qualified exemption within section 2(2)(b).
+That too would depart from the statutory scheme, and run contrary to the grain of the legislation.
+It follows that, even if it were to be held (contrary to my conclusions) that Mr Kennedy has article 10 rights which are not catered for in any way, the most that could be contemplated would be a general declaration of incompatibility.
+Conclusion
+It follows from the above that Mr Kennedys claim, which has been made and argued on the basis that section 32 of the FOIA can and should be read down to have a meaning contrary to that which Parliament clearly intended, must fail.
+It also follows from the above that no basis exists for any declaration of incompatibility with article 10 of the Convention.
+In the succeeding paragraphs I will however consider, obiter though it may be, the position regarding Mr Kennedys actual remedies with regard to first the Charities Act and then article 10.
+The Charities Act 1993
+The provisions of the Charities Act 1993, set out in para 22 above, identify the Charity Commissions objectives, functions and duties in terms which make clear the importance of the public interest in the operations of both the Commission and the charities which it regulates.
+The first (public confidence) objective given to the Commission is to increase public trust and confidence in charities, while the fifth and last is to enhance the accountability of charities to, inter alia, the general public.
+The Commissions general functions include obtaining, evaluating and disseminating information in connection with the performance of any of its functions or meeting any of its objectives.
+As its first general duty, the Commission must, in performing its functions, act in a way (a) which is compatible with its objectives, and (b) which it considers most appropriate for the purpose of meeting those objectives; and, as its fourth such duty, in performing its functions, [it] must, so far as relevant, have regard to the principles of best regulatory practice (including the principles under which regulatory activities should be . accountable, . [and] transparent .).
+The significance of these objectives, functions and duties is not affected by the specific provision in section 8(6), whereby the Commission has a choice in which of two ways it publishes the report of the person conducting an inquiry or a statement of the results of the inquiry.
+The choice must be made in the light of the Commissions objectives, functions and duties.
+Similarly, the significance of those objectives, functions and duties is not affected by the power given in section 10A(1) to disclose to any other public authority information received in connection with the Commissions performance of its functions.
+Section 10A addresses situations in which disclosure is made for purposes not in the performance of the Commissions own functions.
+It does not touch the breadth of the Commissions own objectives, functions and duties.
+The Charity Commissions objectives of increasing public trust and confidence in charities and enhancing the accountability of charities to the general public link directly into its function of disseminating information in connection with the performance of its functions and its duty to have regard to the principle that regulatory activities should be proportionate, accountable, consistent and transparent.
+Its objectives, functions and duties are in their scope and practical application in my view comparable to any that might arise under article 10, taking Mr Coppels most expansive interpretation of the scope of that article.
+Mr Coppel recognises that, if article 10 is engaged and imposes on public authorities, at least towards public watchdogs, a duty of disclosure in respect of information over which such public authorities have an information monopoly, the duty involved is no more than a prima facie duty, subject to qualifications as envisaged by article 10(2).
+In fulfilling its objectives, functions and duties under the 1993 Act, including by conducting and publicising the outcome of any inquiry it holds, the Commission must in my opinion direct itself along lines which are no less favourable to someone in Mr Kennedys position seeking information in order to scrutinise and report on the Commissions performance.
+On either basis, the real issue will be whether the public interests in disclosure are outweighed by public or private interests mirroring those identified in article 10(2).
+This is reinforced by the importance attaching to openness of proceedings and reasoning under general common law principles in the present area, which constitutes background to the correct interpretation and application of the Charities Act.
+Since the passing of the Human Rights Act 1998, there has too often been a tendency to see the law in areas touched on by the Convention solely in terms of the Convention rights.
+But the Convention rights represent a threshold protection; and, especially in view of the contribution which common lawyers made to the Conventions inception, they may be expected, at least generally even if not always, to reflect and to find their homologue in the common or domestic statute law.
+Not surprisingly, therefore, Lord Goff of Chieveley in Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 282 284 and the House in Derbyshire County Council v The Times Newspapers Ltd [1993] AC 534, 551E both expressed the view that in the field of freedom of speech there was no difference in principle between English law and article 10.
+In some areas, the common law may go further than the Convention, and in some contexts it may also be inspired by the Convention rights and jurisprudence (the protection of privacy being a notable example).
+And in time, of course, a synthesis may emerge.
+But the natural starting point in any dispute is to start with domestic law, and it is certainly not to focus exclusively on the Convention rights, without surveying the wider common law scene.
+As Toulson LJ also said in the Guardian News and Media case, para 88: The development of the common law did not come to an end on the passing of the Human Rights Act 1998.
+It is in vigorous health and flourishing in many parts of the world which share a common legal tradition.
+Greater focus in domestic litigation on the domestic legal position might also have the incidental benefit that less time was taken in domestic courts seeking to interpret and reconcile different judgments (often only given by individual sections of the European Court of Human Rights) in a way which that Court itself, not being bound by any doctrine of precedent, would not itself undertake.
+In the present case, the meaning and significance which I attach to the provisions of the Charities Act is in my view underpinned by a common law presumption in favour of openness in a context such as the present.
+In this respect, court proceedings and inquiries have more in common with each other than they do with arbitration proceedings between parties who have contracted to resolve issues between them on the well understood assumption that their proceedings will be private and confidential.
+Starting with court proceedings, common law principles of open justice have been held to require the disclosure to a newspaper for serious journalistic purposes of documents placed before a judge and referred to in open court, absent good reasons to the contrary: see R (Guardian News and Media Ltd) v City of Westminster Magistrates Court [2013] EWCA Civ 420, [2013] QB 618.
+The proceedings in issue there were for extradition to the United States of two British citizens on corruption charges, the documents were affidavits, witness statements and correspondence, and the newspaper wanted to see them in order to understand the full course of the proceedings, and to report on them in order to stimulate informed debate about the way in which the justice system deals with suspected international corruption and the system for extradition of British subjects to the USA (para 76).
+The Court of Appeal held that the principle of open justice applicable to court proceedings required disclosure of the documents sought, unless outweighed by strong countervailing arguments, which, in the event, it also held was not the case.
+The present appeal concerns not proceedings before a court, but an inquiry conducted by the Charity Commission in relation to a charity, and the inquiry proceedings were not conducted in public.
+We are not being asked to say that that was wrong, or that court and inquiry proceedings are subject to the same principles of open justice.
+I agree with Lord Carnwath (paras 243 and 244) that court and inquiry proceedings cannot automatically be assimilated in this connection.
+Had the issue been whether the inquiry proceedings should be conducted in public, we would have had to look at cases such as Crampton v Secretary of State for Health (9 July 1993) (Court of Appeal (Civil Division) Transcript No 824 of 1993), R (Wagstaff) v Secretary of State for Health [2001] 1 WLR 292 and R (Persey) v Secretary of State for the Environment, Food and Rural Affairs [2003] QB 794; [2002] EWHC 371 (Admin), which suggest that it is always very much a matter of context.
+At one end of the spectrum are inquiries aimed at establishing the truth and maintaining or restoring public confidence on matters of great public importance, factors militating in favour of a public inquiry.
+But many inquiries lie elsewhere on the spectrum.
+The present appeal concerns a different issue: to what extent should the Commission disclose further information concerning inquiries on which it has already published reports under section 8(6) of the Charities Act, and in relation to which Mr Kennedy has raised significant unanswered questions of real public interest? We are concerned with a situation where both the Charities Act and the Charity Commission in publishing its report under the Act recognise that the public has a legitimate interest in being informed about the relevant inquiries.
+That must mean properly informed.
+The Charity Commission recognised that this was a case for public reports, and such reports must account properly to the public for the conduct and outcome of the inquiries.
+Here, Mr Kennedy has shown that important questions arise from the inquiries and reports relating not only to the subject matter and outcome of the inquiries, but also to the Charity Commissions conduct of the inquiries.
+The proper functioning and regulation of charities is a matter of great public importance and legitimate interest.
+The public interest in openness in relation to these questions is demonstrated positively by the objectives, the functions and, importantly, the duties given to and imposed on the Charity Commission under the Charities Act.
+The present request for further disclosure is made by a journalist in the light of the powerful public interest in the subject matter to enable there to be appropriate public scrutiny and awareness of the adequacy of the functioning and regulation of a particular charity.
+It is in these circumstances a request to which the Charity Commission should in my opinion accede in the public interest, except so far as the public interest in disclosure is demonstrably outweighed by any countervailing arguments that may be advanced.
+I do not read Lord Carnwaths and my judgments as differing in any essential respect on these points.
+Although (for reasons given in the next section of this judgment: paras 57 96 below) I cannot share his conclusion that the direction of travel of Strasbourg case law has now reached its destination, I do however note his view that no reason has been put forward for regarding that approach as involving any fundamental departure from domestic law principles (para 219).
+The countervailing arguments that can be envisaged against disclosure of particular information will of course differ in nature and weight, according to whether one is considering court or inquiry documents, and in the latter case according to the nature of the inquiry.
+A Charity Commission inquiry is likely to depend upon information being provided by third parties.
+The Commission has powers to require the provision of accounts, statements, copies of documents and the attendance of persons to give evidence or produce such documents: section 8(3) of the Charities Act.
+But it may depend upon co operation and liaison with third parties and the gathering of confidential information.
+In the present case, some of the information sought may also be sensitive information bearing on matters of national security or international affairs, although Mr Kennedy has restricted his request in this respect (para 15 above).
+All such considerations can and would need to be taken into account, as the Charity Commission in its letter dated 4 July 2007 (para 8 above) identified, but they are no reason why the balancing exercise should not be undertaken.
+Again, if one makes an assumption that disclosure could in principle be required under article 10, there is no reason to think that it would be on any basis or be likely to lead to any outcome more favourable from Mr Kennedys viewpoint.
+The same considerations would fall to be taken into account, the same balancing exercise performed and there is no basis for thinking that the outcome should or would differ.
+I do not therefore agree with Jacob LJs comment in the Court of Appeal (para 48) that Parliament must simply [have] overlooked that a court has machinery for the release of documents subsequent to (or indeed during) legal proceedings whereas an inquiry or arbitration does not and that that may well have been a blunder which needs looking at.
+That overlooks the statutory scheme of the FOIA and the Charities Act.
+It also fails to give due weight to the courts power to ensure disclosure by the Charity Commission in accordance with its duties of openness and transparency.
+Again, I find it difficult to think that there would be any significant difference in the nature or outcome of a courts scrutiny of any decision by the Commission to withhold disclosure of information needed in order properly to understand a report issued after a Charities Act inquiry, whether such scrutiny be based solely on the Charity Commissions objectives, functions and duties under the Charities Act or whether it can also be based on article 10, read in the width that Mr Coppel invites.
+The common law no longer insists on the uniform application of the rigid test of irrationality once thought applicable under the so called Wednesbury principle.
+The nature of judicial review in every case depends upon the context.
+The change in this respect was heralded by Lord Bridge of Harwich said in R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514, 531 where he indicated that, subject to the weight to be given to a primary decision makers findings of fact and exercise of discretion, the court must be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines.
+This was taken up by Court of Appeal in R v Ministry of Defence, Ex p Smith [1996] QB 517, 554, a pre Human Rights Act case, where Sir Thomas Bingham MR accepted counsels proposition that The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above (viz, within the range of responses open to a reasonable decision maker).
+The European Court of Human Rights still concluded that the courts had in that case set the level of scrutiny too low on the particular facts: Smith and Grady v United Kingdom (2000) 31 EHRR 620.
+The common law has however continued to evolve.
+As Lord Phillips of Worth Matravers MR said in R (Q) v Secretary of State for the Home Department [2003] EWCA Civ 364, [2004] QB 36, para 112:The common law of judicial review in England and Wales has not stood still in recent years.
+Starting from the received checklist of justiciable errors set out by Lord Diplock in the CCSU case [1985] AC 374, the courts (as Lord Diplock himself anticipated they would) have developed an issue sensitive scale of intervention to enable them to perform their constitutional function in an increasingly complex polity.
+They continue to abstain from merits review in effect, retaking the decision on the facts but in appropriate classes of case they will today look very closely at the process by which facts have been ascertained and at the logic of the inferences drawn from them.
+In IBA Health Ltd v Office of Fair Trading [2004] EWCA Civ 142, [2004] ICR 1364, in a judgment with which I agreed, Carnwath LJ said (at paras 90 92): 90. the CAT [Competition Appeal Tribunal] was right to observe that their approach should reflect the specific context in which they had been created as a specialised tribunal (paras 220); but they were wrong to suggest that this permitted them to discard established case law relating to reasonableness in administrative law, in favour of the ordinary and natural meaning of that word (para 225).
+Their instinctive wish for a more flexible approach than Wednesbury would have found more solid support in the textbook discussions of the subject, which emphasise the flexibility of the legal concept of reasonableness dependent on the statutory context (see de Smith para 13 055ff The intensity of review; cf Wade and Forsyth, p 364ff The standard of reasonableness, and the comments of Lord Lowry in R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696, 765ff). 91.Thus, at one end of the spectrum, a low intensity of review is applied to cases involving issues depending essentially on political judgment (de Smith para 13 056 7).
+Examples are R v Secretary of State, Ex p Nottinghamshire County Council [1986] AC 240, and R v Secretary of State, Ex p Hammersmith and Fulham London Borough Council [1991] 1 AC 521, where the decisions related to a matter of national economic policy, and the court would not intervene outside of the extremes of bad faith, improper motive or manifest absurdity ([1991] 1 AC, per Lord Bridge of Harwich, at pp 596 597).
+At the other end of the spectrum are decisions infringing fundamental rights where unreasonableness is not equated with absurdity or perversity, and a lower threshold of unreasonableness is used: "Review is stricter and the courts ask the question posed by the majority in Brind, namely, whether a reasonable Secretary of State, on the material before him, could conclude that the interference with freedom of expression was justifiable. (de Smith para 13 060, citing Ex p Brind [1991] 1 AC 696, 751, per Lord Ackner)." 92.A further factor relevant to the intensity of review is whether the issue before the Tribunal is one properly within the province of the court.
+As has often been said, judges are not equipped by training or experience or furnished with the requisite knowledge or advice to decide issues depending on administrative or political judgment: see Ex p Brind [1991] 1 AC at 767, per Lord Lowry.
+On the other hand where the question is the fairness of a procedure adopted by a decision maker, the court has been more willing to intervene: such questions are to be answered not by reference to Wednesbury unreasonableness, but in accordance with the principles of fair procedure which have been developed over the years and of which the courts are the author and sole judge (R v Panel on Take overs and Mergers, Ex p Guinness plc [1990] 1 QB 146, 184, per Lloyd LJ).
+More recently, the same process was carried further by emphasising that the remedy of judicial review is in appropriate cases apt to cover issues of fact as well as law see the cases referred to in para 38 above.
+As Professor Paul Craig has shown (see e.g.
+The Nature of Reasonableness (2013) 66 CLP 131), both reasonableness review and proportionality involve considerations of weight and balance, with the intensity of the scrutiny and the weight to be given to any primary decision makers view depending on the context.
+The advantage of the terminology of proportionality is that it introduces an element of structure into the exercise, by directing attention to factors such as suitability or appropriateness, necessity and the balance or imbalance of benefits and disadvantages.
+There seems no reason why such factors should not be relevant in judicial review even outside the scope of Convention and EU law.
+Whatever the context, the court deploying them must be aware that they overlap potentially and that the intensity with which they are applied is heavily dependent on the context.
+In the context of fundamental rights, it is a truism that the scrutiny is likely to be more intense than where other interests are involved.
+But that proportionality itself is not always equated with intense scrutiny was clearly identified by Lord Bingham of Cornhill CJ in R v Secretary of State for Health, Ex p Eastside Cheese Co [1999] 3 CMLR 123, paras 41 49, which Laws and Arden LJJ and Lord Neuberger MR cited and discussed at paras 21, 133 and 196 200 in R (Sinclair Collis Ltd) v Secretary of State for Health [2011] EWCA Civ 437, [2012] QB 394, a case in which the general considerations governing proportionality were treated as relevantly identical under EU and Convention law (paras 54, 147 and 192 194).
+As Lord Bingham explained, at para 47, proportionality review may itself be limited in context to examining whether the exercise of a power involved some manifest error or a clear excess of the bounds of discretion a point taken up and amplified in the Sinclair Collis case, at paras 126 134 and 203 by Arden LJ and by Lord Neuberger; see also Edward and Lane on European Union Law (2013), para 2.32.
+Speaking generally, it may be true (as Laws J said in a passage also quoted by Lord Bingham from R v Ministry of Agriculture, Fisheries and Food, Ex p First City Trading [1997] 1 CMLR 250, 278 279) that Wednesbury and European review are two different models one looser, one tighter of the same juridical concept, which is the imposition of compulsory standards on decision makers so as to secure the repudiation of arbitrary power.
+But the right approach is now surely to recognise, as de Smiths Judicial Review,7th ed (2013), para 11 028 suggests, that it is inappropriate to treat all cases of judicial review together under a general but vague principle of reasonableness, and preferable to look for the underlying tenet or principle which indicates the basis on which the court should approach any administrative law challenge in a particular situation.
+Among the categories of situation identified in de Smith are those where a common law right or constitutional principle is in issue.
+In the present case, the issue concerns the principles of accountability and transparency, which are contained in the Charities Act and reinforced by common law considerations and which have particular relevance in relation to a report by which the Charity Commission makes to explain to the public its conduct and the outcome of an inquiry undertaken in the public interest.
+The Charity Commissions response to a request for disclosure of information is in the light of the above circumscribed by its statutory objectives, functions and duties.
+If, as here, the information is of genuine public interest and is requested for important journalistic purposes, the Charity Commission must show some persuasive countervailing considerations to outweigh the strong prima facie case that the information should be disclosed.
+In any proceedings for judicial review of a refusal by the Charity Commission to give effect to such a request, it would be necessary for the court to place itself so far as possible in the same position as the Charity Commission, including perhaps by inspecting the material sought.
+Only in that way could it undertake any review to ascertain whether the relevant interests had been properly balanced.
+The interests involved and the balancing exercise would be of a nature with which the court is familiar and accustomed to evaluate and undertake.
+The Charity Commissions own evaluation would have weight, as it would under article 10.
+But the Charity Commissions objectives, functions and duties under the Charities Act and the nature and importance of the interests involved limit the scope of the response open to the Charity Commission in respect of any particular request.
+I therefore doubt whether there could or would be any real difference in the outcome of any judicial review of a Charity Commission refusal to disclose information, whether this was conducted under article 10, as Mr Coppel submits that it should be, or not.
+Article 10 in detail
+In the light of the conclusions which I have already expressed, the answer to the question whether or not Mr Kennedys claim to disclosure by the Charity Commission engages article 10 cannot affect the outcome of this appeal.
+But I shall consider this question (I fear at some length) for completeness and in deference to the detailed citation of authority and submissions we have heard upon it.
+On its face, article 10 is concerned with the receipt, holding, expression or imparting of thoughts, opinions, information, ideas, beliefs.
+It is concerned with freedom to receive information, freedom of thought and freedom of expression.
+It does not impose on anyone an obligation to express him or itself or to impart information.
+The Charity Commission submits that this represents the correct analysis.
+Mr Kennedy submits that the Strasbourg case law has taken a direction of travel, towards a destination which should now be regarded as reached.
+Mr Kennedys case is that article 10(1) confers a positive right to receive information from public authorities, and, it follows, a correlative obligation on public authorities to impart information, unless the withholding of the information can be and is justified under article 10(2).
+If this right and obligation is not general, then (he submits) it is at least a right and obligation which arises or exists in any sphere which a state has chosen to regulate by a Freedom of Information Act.
+The Strasbourg jurisprudence is neither clear nor easy to reconcile.
+In Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269 Lord Rodger said famously: Argentoratum locutum: iudicium finitum Strasbourg has spoken, the case is closed.
+In the present case, Strasbourg has spoken on a number of occasions to apparently different effects.
+Further, a number of these occasions are Grand Chamber decisions, which do contain apparently clear cut statements of principle.
+But they are surrounded by individual section decisions, which appear to suggest that at least some members of the Court disagree with and wish to move on from the Grand Chamber statements of principle.
+If that is a correct reading, then it may be unfortunate that the relevant sections did not prefer to release the matter before them to a Grand Chamber.
+It is not helpful for national courts seeking to take into account the jurisprudence of the European Court of Human Rights to have different section decisions pointing in directions inconsistent with Grand Chamber authority without clear explanation.
+Whatever the reason for the present state of authority in Strasbourg, we have, without over concentrating on individual decisions, to do our best to understand the underlying principles, as we have done in previous cases: see, for instance, in relation to the meaning of jurisdiction under article 1: R (Al Skeini) v Secretary of State for Defence [2007] UKHL 26, [2008] AC 153, R (Smith) v Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) [2010] UKSC 29, [2011] 1 AC 1 and Smith v Ministry of Defence (JUSTICE intervening) [2013] UKSC 41, [2014] 1 AC 52; to the scope of the operational duty to safeguard life under article 2: Rabone v Pennine Care NHS Trust (INQUEST intervening) [2012] UKSC 2, [2012] 2 AC 72; and to the circumstances in which and basis on which damages should be awarded to prisoners the need for whose further detention was not promptly reviewed following the expiry of their tariff period: R (Sturnham) v Parole Board [2013] UKSC 23, [2013] 2 AC 254.
+The early Strasbourg case law
+The present appeal in fact represents the second time in two years that this Court has had to consider Strasbourg jurisprudence in this area.
+The first was in British Broadcasting Corpn v Sugar (decd) (No 2) [2012] UKSC 4, [2012] 1 WLR 439 decided on 15 February 2012.
+However Mr Coppel submits that Strasbourg case law has further developed, even since then.
+Sugar was a case where it could be said that Mr Sugars claim to access BBC information was potentially in conflict with the BBCs own freedom of journalistic expression.
+But that is not material when considering whether Mr Sugars claim even engaged article 10.
+Lord Brown gave his reason for a negative answer on that point in some detail in paras 86 to 102, with which I expressly agreed in para 113. (Lord Wilson, while not disagreeing, was less categorical on the point in para 58, so that the reasoning on it cannot be regarded as part of the ratio.)
+Lord Brown identified four Strasbourg cases as establishing that, in the circumstances before the Strasbourg Court in each of such cases, article 10 involved no positive right of access to information, nor any obligation on the State to impart such information.
+The four cases were Leander v Sweden (1987) 9 EHRR 433, Gaskin v United Kingdom (1989) 12 EHRR 36, Guerra v Italy (1998) 26 EHRR 357 and Roche v United Kingdom (2005) 42 EHRR 599.
+In Leander Mr Leander sought information about national security concerns about him which had led to him being refused a permanent position in a naval museum.
+The claim was addressed primarily to article 8 (right to personal life), under which the withholding of information was held justified.
+Under article 10 the Court said simply: 74.
+The Court observes that the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him.
+Article 10 does not, in circumstances such as those of the present case, confer on the individual a right of access to a register containing information on his personal position, nor does it embody an obligation on the Government to impart such information to the individual.
+I do not subscribe to the view taken by Lord Wilson (para 178) that this was the answer to a narrow, ostensibly a pedantic, question of the sort against which the court in Strasbourg often sets its face.
+The Grand Chamber did not see the matter in such terms.
+It was giving a serious answer to an important question, which defines the role of the Convention in this area.
+The Convention establishes fundamental standards, but there are limits to the ideal systems upon which it insists, and the Grand Chamber was making clear that article 10 does not go so far as to impose a positive duty of disclosure on Member States at the European level.
+In Gaskin the Court held a refusal of access to personal information about a persons childhood as a foster child unjustified under article 8, and rejected any claim under article 10 in the circumstances of the [present] case for essentially the same reason as it had in Leander, which it followed.
+In Guerra the Grand Chamber consisting of 20 judges (including the present President) held that it was a breach of article 8 to fail to supply the applicants with environmental information (even though this had not been requested) relating to their exposure to chemical emissions from a nearby factory.
+But it said of article 10: The Court reiterates that freedom to receive information, referred to in para 2 of article l0 of the Convention, basically prohibits a government from restricting a person from receiving information that others wish or may be willing to impart to him (see the Leander v Sweden judgment . ) That freedom cannot be construed as imposing on a state, in circumstances such as those of the present case, positive obligations to collect and disseminate information of its own motion.
+Only a minority of 7 of the 20 judges added as a coda that there might under some different circumstances prove to be a positive obligation on a state to make available information to the public.
+In Roche the claimant sought disclosure of records of gas tests at Porton Down in which he had participated 20 years before and to which he now attributed certain medical conditions.
+The Grand Chamber held that article 8 gave him a positive right to such information, but said of article 10: 172.
+The Court reiterates its conclusion in Leander v Sweden para 74 and in Gaskin para 52 and, more recently, confirmed in Guerra para 53, that the freedom to receive information prohibits a government from restricting a person from receiving information that others wish or may be willing to impart to him and that that freedom cannot be construed as imposing on a state, in circumstances such as those of the present case, positive obligations to . disseminate information of its own motion.
+It sees no reason not to apply this established jurisprudence.
+Thus far, the Strasbourg case law supports the Charity Commissions submission that article 10 does not give positive rights to require, or positive obligations to make, disclosure of information.
+Three of the cases (Leander, Gaskin and Roche) concerned private information, in respect of which the Court held that such a right could arise under article 8.
+In all these cases, the Court did not go on to leave open the position under article 10 or to say that it raised no separate question.
+Rather, it made clear that no right arose in the circumstances under article 10.
+A claim for disclosure by a defendant of private information held regarding the claimant starts from a strong basis.
+If such a claim can only be put under article 8, there is no obvious reason to suppose that a claim for other non private information is generally possible under article 10.
+As to the fourth case, Guerra, the emissions were toxic in a manner breaching article 8, the information about them was not itself private or personal, and the complaint about non disclosure was initially only made under article 10.
+The case is therefore direct authority as to the continuing application of the principle stated in Leander to non personal information under that article.
+The applicants successful claim under article 8 was added before the Court (paras 41 and 46), and was not made on the basis that the environmental information in question was private or personal, but on the basis that withholding it from the applicants prevented them from assessing the risks they ran by continuing to live where they did (para 60)
+It is also of particular interest to note that in summarising the legal position under article 10 in Roche, quoted in para 66 above, the Grand Chamber deliberately omitted the word collect which was present in the original of the passage which it cited from its prior decision in Guerra.
+The Grand Chamber was thus making clear that, even where the information was readily available for disclosure, there was no general duty to disclose.
+Mr Kennedy relies however on a number of subsequent cases as establishing, first, a different direction of travel, and, now, he submits, a different end point.
+The first three, Matky v Czech Republic (Application No 19101/03) (unreported) given 10 July 2006, Trsasg a Szabadsagjogokert v Hungary (2009) 53 EHRR 130, Kenedi v Hungary (2009) 27 BHRC 335, were considered by Lord Brown in Sugar and I can do no better than quote his analysis of them, with which I agreed in that case, at para 113.
+He said: 90.
+I come then to the first of the trilogy of cases on which the appellant so strongly relies: the Matky case.
+The complainant there was seeking, against the background of a general right to information under the Czech legal system, access to documentation concerning the construction of a new nuclear power station and in particular was challenging a requirement of the domestic legislation (article 133 of the Building Act ) that a request for information had to be justified.
+The Court accepted that the rejection of his request constituted an interference with the complainants right to receive information.
+But it held that the decision could not be considered arbitrary, recognised that Contracting States enjoy a certain margin of appreciation in this area and unanimously rejected the complaint as manifestly ill founded. 91.The Matky case seems accordingly an unpromising foundation upon which to build any significant departure from what may be called the Roche approach to the freedom to receive information protected by article 10. 92.
+Nevertheless, in Trsasg (the second in the appellants trilogy of cases) it was to the Matky case that the Second Section of the Court referred as (the sole) authority for the proposition that, the Leander line of authority notwithstanding, the Court has recently advanced towards a broader interpretation of the notion of freedom to receive information and thereby towards the recognition of a right of access to information.
+In Trsasg the court upheld a complaint by the Hungarian Civil Liberties Union that a refusal by the Constitutional Court to grant them access to an MPs pending complaint as to the constitutionality of certain proposed amendments to the Criminal Code breached its article 10 right to receive information.
+The Government having accepted that there had been an interference with the applicants article 10 rights, Mr Eicke relies in particular upon the following passage in the Courts judgment: [The Court] considers that the present case essentially concerns an interference by virtue of the censorial power of an information monopoly with the exercise of the functions of a social watchdog, like the press, rather than a denial of a general right of access to official documents .
+Moreover, the states obligations in matters of freedom of the press include the elimination of barriers to the exercise of press functions where, in issues of public interest, such barriers exist solely because of an information monopoly held by the authorities (para 36). 93.
+Kenedi, the third in the trilogy of cases, was decided just four months after Trsasg, also by the Second Section of the Court (including six of the same seven judges who had decided Trsasg).
+The applicant there was a historian specialising in the functioning of the secret services of dictatorships.
+Although a succession of domestic court judgments had held him to be entitled to access to various documents for research purposes, the Ministry had refused to disclose them.
+Once again, hardly surprisingly in this case, the government conceded that there had been an interference with the applicants article 10 rights.
+The Court 27 BHRC 335, para 45, had no difficulty in finding in the result a violation of article 10: the Court cannot but conclude that the obstinate reluctance of the respondent states authorities to comply with the execution orders was in defiance of domestic law and tantamount to arbitrariness.
+The conclusion in BBC v Sugar
+Lord Browns conclusion in relation to the impact of the trio of cases relied upon by the claimant in Sugar was that: 94.
+In my judgment these three cases fall far short of establishing that an individuals article 10(1) freedom to receive information is interfered with whenever, as in the present case, a public authority, acting consistently with the domestic legislation governing the nature and extent of its obligations to disclose information, refuses access to documents.
+Of course, every public authority has in one sense the censorial power of an information monopoly in respect of its own internal documents.
+But that consideration alone cannot give rise to a prima facie interference with article 10 rights whenever the disclosure of such documents is refused.
+Such a view would conflict squarely with the Roche approach.
+The applicants difficulty here is not that Mr Sugar was not exercising the functions of a social watchdog, like the press. (Perhaps he was.) The Jewish Chronicle would be in no different or better position.
+The applicants difficulty to my mind is rather that article 10 creates no general right to freedom of information and where, as here, the legislation expressly limits such right to information held otherwise than for the purposes of journalism, it is not interfered with when access is refused to documents which are held for journalistic purposes.
+Some points are worth underlining in relation to Trsasg.
+First, the Second Sections reference to the Court having recently advanced towards a broader interpretation of the notion of freedom to receive information was, firstly, weakly based: see Lord Browns analysis at para 91, secondly, clearly aspirational and tentative and, thirdly, not part of the essential reasoning for the Courts decision this is evident from the fact that the Court began its next para 36 with the words In any event, .
+Second, in point of fact, the Hungarian Government accepted in Trsasg that article 10 was engaged (para 18), and it was on that basis that the Court went straight to the question whether there has been an interference and in that connection said that even measures which merely make access to information more cumbersome may amount to interference (para 26).
+Third, in introducing its decision on the question which thus arose whether the interference with this admitted right was justified, the Second Section used the dramatic metaphor of the censorial power of an information monopoly (para 36).
+The context helps understand why such dramatic language was appropriate.
+Disclosure of the information requested had been refused by the domestic courts on the ground that this was essential to protect personal data.
+But, as the Court noted, the claimant had expressly restricted his application to information . without the personal data of its author (para 37).
+In addition, the Court found, it was quite implausible that any reference to the private life of the MP, hence to a protected private sphere, could be discerned from his constitutional complaint.
+In short, the domestic courts had arrived at a decision to refuse disclosure which was not sustainable under domestic law.
+The breach of article 10 followed this.
+Kenedi was also a case where there had been a breach of a domestic law duty of disclosure, in that case by the executive failing to give effect to court orders.
+Again, the breach of article 10 followed.
+Further Strasbourg case law
+Since the Supreme Courts decision in Sugar, there have been four further Strasbourg decisions upon which Mr Kennedy relies as requiring a different analysis to that adopted in Lord Browns judgment.
+They are Gillberg v Sweden (2012) 34 BHRC 247, Shapovalov v Ukraine (Application No 45835/05) (unreported) given 31 July 2012, Youth Initiative for Human Rights v Serbia (Application No 48135/06) (unreported) given 25 June 2013 and, finally, sterreichische Vereinigung zur Erhaltung, Strkung und Schaffung v Austria (Application No 39534/07) (unreported) given 28 November 2013.
+The last (for economy, the sterreichische case) was decided after the oral hearing of the present appeal and the Court received written submissions upon it.
+All four cases were concerned with information which was not personal.
+Gillberg was an unusual case.
+Under the Swedish equivalent of the FOIA, Professor Gillberg was ordered by the Administrative Court of Appeal to allow the claimants (K, a sociologist, and E, a paediatrician) to have access for research purposes to a file belonging to Gothenburg University but held by Professor Gillberg.
+He refused such access, the file was instead destroyed by three of his colleagues, and he was prosecuted.
+He claimed that the Administrative Court and criminal proceedings breached his rights under articles 8 and 10.
+The Grand Chamber repeated that: 83.
+The right to receive and impart information explicitly forms part of the right to freedom of expression under article 10.
+That right basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him (see, for example, Leander v Sweden ., para 74, and Gaskin v United Kingdom .para 52) 84.
+In the present case the applicant was not prevented from receiving and imparting information or in any other way prevented from exercising his positive right to freedom of expression.
+He argued that he had a negative right within the meaning of article l0 to refuse to make the disputed research material available, and that consequently his conviction was in violation of article l0 of the Convention.
+As to this suggested negative right, the Court expressed no view, saying merely: 86.
+The Court does not rule out that a negative right to freedom of expression is protected under article 10 of the Convention, but finds that this issue should be properly addressed in the circumstances of a given case.
+Turning on this basis to the actual issue and circumstances, the Court said: 92. the Court considers that the crucial question can be narrowed down to whether the applicant, as a public employee, had an independent negative right within the meaning of article l0 of the Convention not to make the research material available, although the material did not belong to him but to his public employer, the University of Gothenburg, and despite the fact that his public employer the university actually intended to comply with the final judgments of the Administrative Court of Appeal granting K and E access to its research material on various conditions, but was prevented from so doing because the applicant refused to make it available. 93.
+In the Court's view, finding that the applicant had such a right under article l0 of the Convention would run counter to the property rights of the University of Gothenburg.
+It would also impinge on K's and E's rights under article 10, as granted by the Administrative Court of Appeal, to receive information in the form of access to the public documents concerned, and on their rights under article 6 to have the final judgments of the Administrative Court of Appeal implemented.
+Gillberg is therefore a case in which the Court reiterated with approval the general principle identified in Leander.
+At the same time, however, it suggested in the second sentence of para 93 that domestic rights to receive information could give rise to an entitlement under article 10.
+Shapovalov is to like effect.
+A Ukrainian journalist claimed that he had (contrary to the Ukranian Information Act 1992) been refused access by administrative authorities during the 2004 elections to certain information and meetings.
+He relied on article 6 because the Ukrainian courts had wrongly failed on procedural grounds to consider the merits of his complaints.
+The Court upheld that complaint.
+He also relied on article 10 because of the administrative authorities interference with his access.
+The Government made no submissions on the merits of this complaint, but the Court rejected it on the ground that there was no evidence of interference with his performance of his journalistic activity.
+Again, the case was one where there was a domestic right to information.
+In Youth Initiative the complaint concerned a refusal by the Serbian intelligence agency to provide the complainant with information as to how many people had been the subject of electronic surveillance by the agency.
+The Serbian Information Commissioner whose role was to ensure the observance of the Serbian Freedom of Information Act 2004: para 25 had decided that this should be disclosed.
+The Serbian Government objected that article 10 did not guarantee a general right of access to information and the applicant did not anyway need the information.
+The Second Section rejected these objections with references to Trsasg, recalling that the notion of freedom of information embraces a right of access to information (para 20), and stating that the applicant NGO was exercising a role as a public watchdog of similar importance to that of the press and warranted similar Convention protection to that afforded to the press (para 20).
+On the merits, after referring to the Serbian Information Commissioners order, the Second Section held that there had been an interference, analogous to that in Trsasg (para 24).
+In para 25 the Court noted that the Information Commissioner had decided that the information should be provided and found the intelligence agencys assertion that it did not hold the information unpersuasive in view of the nature of that information (the number of people subjected to electronic surveillance by that agency in 2005) and the agencys initial response (viz, to rely on a public interest exception in the Serbian Act of 2004, which the Information Commissioner had not accepted as justifying non disclosure).
+The Youth Initiative case is, therefore, another in a line of cases where the European Court of Human Rights has recognised a complaint under article 10 of the Convention following from a failure to give effect to a domestic right to disclosure of information.
+In the context of EU law, we were also referred to a comparable complaint in Thesing, Bloomberg Finance Ltd v European Central Bank (ECB) (Case T 590/10) (unreported) 29 November 2012.
+There the General Court was concerned with the right to access ECB documents provided by article 1 of Decision 2004/258/EC.
+The applicant sought to rely on article 11 of the Charter of Fundamental Rights (mirroring in this respect article 10 of the Convention) and on the Strasbourg case law, including Trsasg, Kenedi and Gillberg.
+They failed because the General Court held that the ECB had been entitled to invoke an exception contained in article 4 of Decision 2004/258/EC.
+The decision therefore adds nothing of present relevance.
+Finally, in the sterreichische case, all agricultural and forest land transactions in Austria required approval by local and regional authorities (in the Tyrol, the Tyrol Real Property Transactions Commission), the aim being to preserve land for agriculture and forestry and avoid the proliferation of second homes.
+The application association was formed to promote sound agricultural and forest property ownership and sought from the Tyrol Commission (in anonymised form and against reimbursement of costs) all decisions it had issued since 1 January 2000.
+It relied upon the Tyrol Access to Information Act and submitted that the Commissions decisions concerned civil rights within article 6 of the Convention, and should therefore be made public (para 8).
+The Commission based its refusal on submissions that the decisions were not information within the Act, but decisions on the basis of legal arguments, comparable to giving legal advice, as well as on an exemption in the Act for situations where excessive resources would be required to provide the information sought.
+The Austrian Constitutional Court rejected the associations complaint.
+It held first that neither under article 10 nor under Austrian law was there any positive duty of states to collect and disseminate information of their own motion.
+Secondly, it accepted the Commissions case that the compilation, anonymisation and disclosure of paper copies of decisions over a period of some years fell outside any duty to disclose information under the Act and would excessively impinge on the Commissions performance of its duties.
+Thirdly, it added that, in so far as the applicant might implicitly be relying on article 6, the Strasbourg case law did not guarantee the right to obtain anonymised decisions over a lengthy period, and Austrian law only required access to the judgments delivered by the highest courts which dealt with important legal issues.
+Before the European Court of Human Rights, First Section, the application was addressed under the heading of article 10.
+But the applicants case was that decisions of judicial bodies such as the Commission should be publicly accessible (para 28) and that interests in the rule of law and due process argued in favour of making decisions by judicial authorities available to the public (para 29).
+The Austrian Governments case was, first, that article 10 imposes no positive obligation on a state to collect and disseminate information itself, second, that a refusal to provide anonymised copies of all decisions over a lengthy period did not in any event constitute an interference with rights under article 10, and, third, that a right to be provided with such decisions could not be inferred from article 6 (para 31).
+Finally, it also argued that, if article 10 was engaged, the refusal was justified, as serving legitimate aims (protection of confidential information and preservation of the Commissions proper functioning).
+The First Sections judgment is surprising in the nature and brevity of its treatment of the issue whether there was an interference under article 10(1).
+Essentially, the First Section did no more than cite previous jurisprudence (including Trsasg) establishing the social watchdog role of the press and other non governmental organisations like the applicant gathering information, and then added: Consequently, there has been an interference with the applicant associations right to receive and to impart information as enshrined in article 10(1) of the Convention (see Trsasg ., para 28; see also Kenedi ., para 43).
+This reasoning fails to address any of the statements of general principle found in Leander, Guerra, Roche and Gillberg.
+It does not indicate why the First Section thought those statements inapplicable, whether it was suggesting some alternative general principle applicable to social watchdogs, or whether (perhaps) it was acting on the basis that, despite the Austrian Constitutional Courts contrary view, there was a domestic right to the information which it was entitled to recognise, even though the Austrian Constitutional Court had wrongly failed to do so (see e.g. the Grand Chambers apparent reasoning in Gillberg: paras 75 76 above).
+The First Sections silence when considering article 10(1) is the more surprising when one comes to its reasoning under article 10(2).
+Here (in para 41) the First Section does refer expressly to the principle in Leander that In the specific context of access to information, the Court has held that the right to receive information basically prohibits a Government from preventing a person from receiving information that others wished or were willing to impart, as well as to the principle in Guerra that the right to receive information cannot be construed as imposing on a state positive obligations to collect and disseminate information of its own motion.
+But those were decisions under article 10(1).
+Yet the First Section deals with them only under article 10(2), and goes on to say that in Trsasg the Court noted that it had recently advanced towards a broader interpretation of the notion of the freedom to receive information and thereby towards the recognition of a right of access to information.
+Quite apart from the fact that advances do not always achieve their goal, the First Section did not address the weakness of the basis and reasoning of the statement in Trsasg (para 69 above), or the fact that it was no more than a Section decision to be compared with a considerable number of weighty Grand Chamber decisions, or any way in which the general Grand Chamber statements might be reconciled with Trsasg.
+Later in its reasoning on justification, the First Section (in para 46) said that Given that the Commission is a public authority deciding disputes over civil rights within the meaning of article 6 of the Convention . which are, moreover, of considerable public interest, the Court finds it striking that none of the Commissions decisions was published, whether in an electronic database or in any other form, and that consequently much of the Commissions anticipated difficulty in providing copies of numerous decisions over a lengthy period was generated by its own choice.
+On that basis, it concluded that the Commissions complete refusal to give [the applicant] access to any of its decisions was disproportionate (para 47), and held that there had been a violation of article 10.
+So one explanation of the sterreichische case may be that the implicit finding of violation of article 6 was critical.
+Analysis of position under article 10
+What to make of the Strasbourg case law in the light of the above is not easy.
+One possible view is the various Section decisions open a way around the Grand Chamber statements of principle in circumstances where domestic law recognises or the European Court of Human Rights concludes that it should, if properly applied, have recognised, a domestic duty on the public authority to disclose the information.
+The sterreichische case might perhaps be suggested to fit into this pattern, though it does not appear to have represented any part of the First Sections thinking.
+Alternatively, the sterreichische case may be regarded as a special case, influenced by what were, on the First Sections reasoning, the Commissions clear breaches of article 6.
+That said, the logic is not very apparent of a principle according to which the engagement of article 10(1) depends upon whether domestic law happens to recognise a duty on the relevant public authority to provide the information.
+To deal at this point with an argument raised by Mr Clayton, it is in procedural law entirely understandable that, even though the Convention confers no right to have a domestic appeal, where a domestic right of appeal is in law provided, then it must comply with article 6.
+But that is because the existence of the domestic right of appeal necessarily means that there are further proceedings to which article 6 applies.
+Here, if article 10 involves no duty on a public authority to disclose information, no reason appears why the existence of a domestic duty should mean any more than that the domestic legislator has chosen to go further than the Convention.
+No reason appears why the additional duty which the domestic legislator chose to introduce should necessarily become or engage an article 10(1) duty of disclosure.
+However, putting aside the point made in para 90, if the explanation of the Section decisions is that they turn on the existence of a domestic duty to disclose, then I think it unlikely that they could affect the outcome of any request addressed by Mr Kennedy to the Charity Commission under the Charities Act.
+Either there is no domestic duty of this nature, in which case article 10(1) does not, on the basis of the Grand Chamber decisions, give rise to one.
+Or there is a domestic duty of this nature, in which case article 10(1) seems to me unlikely to add anything to it in the present case since I have already concluded that the Charity Commissions domestic statutory duties should offer a path to disclosure no less favourable to a journalist such as Mr Kennedy than any available under article 10.
+If, alternatively, the explanation of the sterreichische case is that it turned on the existence of breaches of article 6, no such breaches have been relied on in this case, but, for reasons already indicated, I do attach significance to the importance of the principles of accountability and transparency as they apply to reports of inquiries under the Charities Act, and I consider that the Act, read in the light of these principles, is likely to go at least as far as any reliance which could have been placed by Mr Kennedy on article 6, or article 10 as informed by article 6, could have taken him.
+Mr Coppel argues for a more radical analysis than I have discussed in paras 88 to 90.
+He argues that the Section decisions show that a right to receive information can arise under article 10, without any domestic right to the information.
+If necessary, he accepts a restriction of the right to a member of the press like Mr Kennedy or any other social watchdog.
+It is true that, in Trsasg and Youth Initiative, where the complainants were interested NGOs, the Court used language stressing the vital role of such social watchdogs, likening them to the press.
+But, as Lord Brown noted in Sugar at para 94, the occupation of such a role cannot sensibly represent any sort of formal pre condition, before breach of a domestic duty of disclosure engages article 10(1).
+Many organisations and individuals, including those seeking information for research or historical or personal or family purposes, may have legitimate and understandable interests in enforcing a domestic right to information.
+In reality, therefore, Mr Coppels more radical argument resolves itself into a submission that a general duty to disclose is engaged under article 10(1) by any claim based on public interest.
+On that basis, however, the statements of principle in the Grand Chamber decisions are history.
+Had it been decisive for the outcome of this appeal, I would have considered that, in the present unsatisfactory state of the Strasbourg case law, the Grand Chamber statements on article 10 should continue to be regarded as reflecting a valid general principle, applicable at least in cases where the relevant public authority is under no domestic duty of disclosure.
+The Grand Chamber statements are underpinned not only by the way in which article 10(1) is worded, but by the consideration that the contrary view that article 10(1) contains a prima facie duty of disclosure of all matters of public interest leads to a proposition that no national regulation of such disclosure is required at all, before such a duty arises.
+Article 10 would itself become a European wide Freedom of Information law.
+But it would be a law lacking the specific provisions and qualifications which are in practice debated and fashioned by national legislatures according to national conditions and are set out in national Freedom of Information statutes.
+Mr Coppel recognised that the logic of his case is that article 10 must involve a general duty of disclosure such as mentioned in paras 93 94, irrespective of the existence of any freedom of information legislation.
+But he contends that, where such legislation exists, it should be the vehicle for any rights contained in article 10.
+The Media Legal Defence Initiative and the Campaign for Freedom of Information, interveners before the Supreme Court, suggest a more nuanced analysis, according to which article 10 should only be treated as engaged once a state has enacted a domestic freedom of information statute providing a general right of access to information and so occupied the field.
+Then and only then could article 10 be deployed to check and control whether the right of access corresponded with that which, they submit, is required by article 10.
+I see no basis for either Mr Coppels or the interveners half way approach.
+I start from the position that there is no reason why any article 10 rights must be found and satisfied in and only in the FOIA.
+They may be satisfied by a scheme which operates in some situations under the FOIA and in others under the principles which govern the conduct of courts, arbitration tribunals and those holding inquiries outside the FOIA.
+Secondly, and for similar reasons, references to a general right of access and to occupying the field are unhelpful metaphors in relation to areas which the FOIA deliberately exempts.
+The only relevant sense in which the exemptions provided by the FOIA are touched by that Act is that they are exempted from its operation.
+It would be no different if the Act had been framed to cover specific situations which did not cover the present.
+I would add that, on either approach, it would seem that article 10 would operate as a general control on the appropriateness of exemptions in the FOIA.
+This becomes even more striking once one realises that it would also extend to other absolute exemptions provided by the FOIA.
+These include information directly or indirectly supplied by or relating to the Security and Secret Intelligence Services, the Government Communications Headquarters, the special forces and a list of tribunals and other authorities associated with security matters: see para 18 above.
+General international legal principles
+Mr Coppel also submitted that general international legal principles and other instruments supported an interpretation of article 10 as introducing a positive right to receive and a correlative duty to impart information.
+He referred, inter alia, to: i) article 19 of the Universal Declaration of Human Rights, 1948, providing: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers; ii) article 19 of the International Covenant on Civil and Political Rights (ICCPR), adopted 1966 and in force in 1976, providing: 1.
+Everyone shall have the right to hold opinions without interference. 2.
+Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice; iii) article 13(1) of the Inter American Convention on Human Rights (IACHR), adopted 1969 and in force 1978, providing: Everyone has the right of freedom of thought and expression.
+This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.
+The Inter American Court of Human Rights has in its jurisprudence interpreted article 13(1) as conferring a positive right to receive and a positive duty to impart information: Reyes v Chile (2006) IACHR, 19 September 2006, followed in Lund v Brazil (2010) IACHR, 24 November 2010.
+There is a particularly full examination of this aspect in paras 75 to 107 of Reyes v Chile.
+At para 77, the Court found that by expressly stipulating the right to seek and receive information, article 13 of the Convention protects the right of all individuals to request access to state held information, with the exceptions permitted by the restrictions established in the Convention.
+The word seek is one which appears in all three international instruments cited in the preceding paragraph, and not in article 10 of the European Convention on Human Rights agreed in 1950.
+As Clayton and Tomlinson note in their work The Law of Human Rights, 2nd ed (2009), para 15.03, article 10 defines the right in language which is weaker than that of article 19 of the ICCPR.
+Various academic commentators have suggested that the difference should not be regarded as material.
+But it is worth noting that the original draft of article 10 prepared by the Committee of Experts provided a right to seek, receive and impart information ideas, and that, in the light of its presence in the prior Universal Declaration of Human Rights, some significance must attach to the subsequent omission of the word from article 10.
+The IACHR in Reyes v Chile, para 81, also referred to prior recommendations of the Council of Europes Parliamentary Assembly and Committee dating back to 1970, 1982 and 1998, advocating, for example, a duty on public authorities to make available information on matters of public interest within reasonable limits and expressing the goal of the pursuit of an open information policy.
+But the present issue is not whether these are appropriate general aspirations, but whether article 10 contains a concrete decision to give general effect to them at an international level enforceable without any more specific measure and without any controlling qualifications and limitations at that level.
+The European Court of Human Rights case law, analysed above, does not to my mind support this.
+Ullah no more, but certainly no less
+Against the possibility of the Supreme Court concluding that the Strasbourg case law does not clearly or sufficiently lead in the direction invited by Mr Kennedys case, Mr Richard Clayton QC for The Media Legal Defence Initiative and The Campaign for Freedom of Information invited us to strike out alone.
+He submitted that the case could be a suitable one in which to revisit the approach associated with the words no more, but certainly no less used by Lord Bingham in R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, para 20 in relation to national courts duty to keep pace with Strasbourg case law.
+I would decline that invitation.
+I see no basis for differing domestically from the Grand Chamber statements about the scope of article 10 and no need to expand the domestic article 10 rights, having regard to the domestic scheme of the Charities Act.
+Overall Conclusions
+The only claim that Mr Kennedy has made is for disclosure under section 32.
+He has pursued this claim as a matter of common law interpretation and, in the alternative, on the basis that section 32 must be read down in the light of article 10 of the Convention.
+Alternatively, he has claimed a declaration that section 32 is incompatible with article 10.
+My conclusions are in summary that: i) Mr Kennedys case is not entitled to succeed on the claims he has pursued by reference to section 32 of the FOIA: see in particular paras 34, 35 41 and 42 above. ii) But that is not because of any conclusion that he has no right to the disclosure sought: see paras 35 41. iii) He fails in the claims he had up to this point made because a) the scheme of section 32 read in this case with the Charities Act 1993 is clear (paras 34 and 35 40), and b) the route by which he may, after an appropriate balancing exercise, be entitled to disclosure, is not under or by virtue of some process of remodelling of section 32, but is under the Charities Act construed in the light of common law principles (paras 40 and 43 52) and/or in the light of article 10 of the Human Rights Convention (paras 36 39), if and so far as that article may be engaged (as to which see paras 55 98). iv) Construed without reference to article 10, the Charities Act should be read as putting Mr Kennedy in no less favourable position regarding the obtaining of such disclosure than he would be in on his case that article 10 by itself imposes on public authorities a general duty of disclosure of information (paras 40 and 43 52). v) I do not consider that article 10 does contain so general a duty (paras 97 98), but, in the circumstances, that conclusion is academic.
+LORD TOULSON (with whom Lord Neuberger and Lord Clarke agree)
+The first issue concerns the construction of section 32(2) of FOIA, leaving aside the Human Rights Act 1998 and the European Convention.
+The section has been set out by Lord Mance at para 17.
+The issue was succinctly summarised by Mr Philip Coppel QC in his written case as being whether the phrase for the purposes of the inquiry or arbitration in section 32(2)(a) is to be interpreted as linked to the immediately preceding words placed in the custody of a person conducting an inquiry or arbitration or as linked to the opening words of the subsection information held by a public authority.
+Whichever construction is right, the same must apply to section 32(1) and to section 32(2)(b).
+I agree with Lord Mance and the courts below that the first interpretation is right.
+As Lord Mance says, it is the more natural reading.
+If the alternative construction were right, most of the language of paragraphs (a) and (b) would be otiose.
+The drafter could have stated much more simply that information held by a public authority is exempt information if it is held only for the purposes of an inquiry or arbitration.
+I agree also that this conclusion is reinforced by the provision in section 63(1), set out by Lord Mance at para 30, that information contained in a historical record cannot be exempt information by virtue of section 32.
+A document does not become a historical record until 20 years (originally 30 years) have passed from the year of its creation; section 62(1).
+It is unreal to suppose that this provision was aimed at the remote possibility of an inquiry continuing for more than 30 years or involving documents more than 30 years old.
+The strong inference is that a document provided to or created by a person conducting an inquiry or arbitration is to remain within the section 32 exemption until the end of the specified period.
+If his argument on the first issue failed, Mr Coppel submitted that section 32(2) should be read down so as to cease to apply on the conclusion of the inquiry or arbitration, pursuant to the requirements of the Human Rights Act and article 10 of the European Convention.
+This is a more difficult issue.
+The difficulty arises in part because the argument for Mr Kennedy began on a wrong footing by Mr Coppel submitting that without FOIA the Charity Commission would have no power to provide Mr Kennedy with information of the kind which he seeks.
+The Charity Commission and the Secretary of State disagree and draw attention to the statement in section 78 that nothing in the Act is to be taken to limit the powers of a public authority to disclose information held by it.
+I am clear that they are right on this point.
+Every public body exists for the service of the public, notwithstanding that it may owe particular duties to individual members of the public which may limit what it can properly make public.
+The duties of a hospital trust to a patient are an obvious example.
+There may also be other reasons, apart from duties of confidentiality, why it would not be in the public interest or would be unduly burdensome for a public body to disclose matters to the public, but the idea that, as a general proposition, a public body needs particular authority to provide information about its activities to the public is misconceived.
+In this case there is an important additional dimension.
+We are concerned with a public body carrying out a statutory inquiry into matters of legitimate public concern.
+Over several decades it has become increasingly common for public bodies or sometimes individuals to be given statutory responsibility for conducting such inquiries.
+They are part of the constitutional landscape.
+Subject to any relevant statutory provisions, a judicial body has an inherent jurisdiction to determine its own procedures (Attorney General v Leveller Magazine Ltd [1979] AC 440).
+The same applies to a public body carrying out a statutory inquiry.
+It has long been recognised that judicial processes should be open to public scrutiny unless and to the extent that there are valid countervailing reasons.
+This is the open justice principle.
+The reasons for it have been stated on many occasions.
+Letting in the light is the best way of keeping those responsible for exercising the judicial power of the state up to the mark and for maintaining public confidence: Scott v Scott [1913] AC 417; R (Guardian News and Media Ltd) v City of Westminster Magistrates Court (Article 19 intervening)[2012] EWCA Civ 420; [2013] QB 618.
+Before discussing the question whether and to what extent the same principle is applicable in relation to statutory inquiries, it is relevant to understand the reasoning in Guardian News (about which Lord Carnwath has made some observations in para 235 of his judgment), particularly since one of the arguments concerned section 32 of FOIA.
+The case concerned documents which were provided to a district judge before the hearing of extradition proceedings, but which were not read out in court although some of them were referred to by counsel.
+The Divisional Court held that the judge had no power to allow the press to have access to the documents: [2010] EWHC 3376 (Admin), [2011] 1 WLR 1173.
+Part of its reasoning (at paras 53 54) was that FOIA had put in place a regime for obtaining access to documents held by public authorities and that it would be strange if a request for information which was specifically exempted under the Act could be made at common law or under article 10.
+The Court of Appeal took a different approach.
+It started with the proposition that open justice is a principle at the heart of our system of justice and vital to the rule of law.
+It explained why it is a necessary accompaniment of the rule of law (at para 1).
+Society depends on the judges to act as guardians of the rule of law, but who is to guard the guardians and how can the public have confidence in them? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process.
+Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse.
+For that proposition the court cited Scott v Scott and other authority.
+The principle has never been absolute because it may be outweighed by countervailing factors.
+There is no standard formula for determining how strong the countervailing factor or factors must be.
+The court has to carry out a balancing exercise which will be fact specific.
+Central to the courts evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others. (See Guardian News at para 85.)
+There may be many reasons why public access to certain information about the court proceedings should be denied, limited or postponed.
+The information may be confidential; it may relate to a person with a particular vulnerability; its disclosure might impede the judicial process; it may concern allegations against other persons which have not been explored and could be potentially damaging to them; it may be of such peripheral, if any, relevance to the judicial process that it would be disproportionate to require its disclosure; and these are only a few examples.
+The court held in Guardian News that the open justice principle applies, broadly speaking, to all tribunals exercising the judicial power of the State. (The same expression is used in section 32(4)(a) of FOIA, which defines a court as including any tribunal or body exercising the judicial power of the State.) The fundamental reasons for the open justice principle are of general application to any such body, although its practical operation may vary according to the nature of the work of a particular judicial body.
+In contrast with the view expressed by the Divisional Court about the exemption of court documents from the provisions of FOIA, the Court of Appeal considered that the exclusion was both unsurprising and irrelevant.
+Under the Act the Information Commissioner is made responsible for taking decisions about whether a public body should be ordered to produce a document to a party requesting it.
+The Information Commissioners decision is subject to appeal to a tribunal, whose decision is then subject to the possibility of further appeals to the Upper Tribunal and on to the Court of Appeal.
+It would be odd if the question whether a court should allow access to a document lodged with the court should be determined in such a roundabout way.
+However, there was a more fundamental objection to the Divisional Courts approach, which is relevant also in the present case.
+As the Court of Appeal said (at paras 73 74), although the sovereignty of Parliament means that the responsibility of the courts for determining the scope of the open justice principle may be affected by an Act of Parliament, Parliament should not be taken to have legislated so as to limit or control the way in which the court decides such a question unless the language of the statute makes it plain beyond possible doubt that this was Parliaments intention.
+It would therefore be quite wrong to infer from the exclusion of court documents from FOIA that Parliament intended to preclude the court from permitting a non party to have access to such documents, if the court considered such access to be proper under the open justice principle.
+The Administrative Courts observation that no good reason had been shown why the checks and balances contained in the Act should be overridden by the common law was to approach the matter from the wrong direction.
+The question, rather, was whether the Act demonstrated unequivocally an intention to preclude the courts from determining in a particular case how the open justice principle should be applied.
+In the present case we have been referred to Hansard, which shows that the Government positively intended not to interfere with the courts exercise of the power to determine what information should be made available to the public about judicial proceedings, and that it viewed statutory inquiries in the same way as judicial proceedings.
+I do not consider this to be relevant or admissible for the purposes of construing section 32, which is unambiguous; but it is relevant background material when considering whether questions of disclosure of information about statutory inquiries are properly a matter for the courts, applying the common law.
+During the Committee stage in the House of Commons, amendments were moved which would have converted the blanket exemptions in section 32(1) and (2) into qualified exemptions (applicable if disclosure under the Act would be likely to cause prejudice to the judicial proceedings, inquiry or arbitration), but they were withdrawn after the Minister, Mr David Lock MP, explained the Governments objection to them (Hansard, (HC Debs Standing Committee B), 25 January 2000, cols 281 282): Essentially this is an issue of separation of powers.
+The courts control the documents that are before them and it is right that our judges should decide what should be disclosed.
+Although the courts are not covered by the Bill, according to it court records may be held on a courts behalf by public authorities Statutory inquiries have a status similar to courts, and their records are usually held by the Department that established the inquiry.
+The clause therefore ensures that the courts can continue to determine what information is to be disclosed, and that such matters are decided by the courts and fall within their jurisdiction, rather than the jurisdiction of this legislation.
+Of course, it is not to be assumed that such information will not be disclosed merely because the Bill will not require it to be disclosed.
+Such information is controlled by the courts, which constitute a separate regime.
+The courts have their own rules, and they will decide if and when court records are to be disclosed.
+The Government do not believe that the Freedom of Information Bill should circumvent the power of the courts to determine their disclosure policy.
+The issue is the separation of powers, and the jurisdiction to determine the information the court should provide will be left to the courts themselves.
+In a court case, it is for judges and courts to determine when it is appropriate for court records to be disclosed.
+Should the principle of openness as a general matter be held to apply to statutory inquiries? This involves two linked considerations: whether it is right that judicial proceedings and statutory inquiries should be regarded as analogous for this purpose or, to put it another way, whether the reasons for the judicial process to be open to public scrutiny apply similarly to statutory inquiries; and whether the court in answering that question would be crossing onto territory which should be left to Parliament.
+An inquiry is defined for the purposes of section 32 by subsection (4)(c) as meaning any inquiry or hearing held under any provision contained in, or made under, an enactment.
+Although such inquiries and hearings may vary considerably in nature and scope, it is fair to describe the conduct of them as a quasi judicial function.
+That doubtless explains why Parliament considered their status to be similar, as the Minister stated in the passage cited above, and the treatment of the records of judicial proceedings and records of statutory inquiries in section 32(1) and (2) is materially identical.
+Just as Parliament by excluding courts and court records from the provisions of the Act did not intend that such records should be shrouded in secrecy, but left it to the courts to rule on what should be disclosed, so in the case of a statutory inquiry Parliament decided to leave it to the public body to rule on what should be disclosed, balancing the public interest in its decision being open to proper public scrutiny against any countervailing factors, but the exercise of such power must be amenable to review by the court.
+The considerations which underlie the open justice principle in relation to judicial proceedings apply also to those charged by Parliament with responsibility for conducting quasi judicial inquiries and hearings.
+How is an unenlightened public to have confidence that the responsibilities for conducting quasi judicial inquiries are properly discharged?
+The application of the open justice principle may vary considerably according to the nature and subject matter of the inquiry.
+A statutory inquiry may not necessarily involve a hearing.
+It may, for example, be conducted through interviews or on paper or both.
+It may involve information or evidence being given in confidence.
+The subject matter may be of much greater public interest or importance in some cases than in others.
+These are all valid considerations but, as I say, they go to the application and not the existence of the principle.
+In each case it is necessary to have close regard to the purpose and provisions of the relevant statute.
+Lord Mance is therefore right to place the emphasis which he has on the provisions of the Charities Act, particularly in paras 43 to 45 of his judgment.
+No useful purpose would be served by my repeating or paraphrasing his analysis of those provisions.
+As he says at the end of para 45 and the beginning of para 47, the meaning and significance which he attaches to those provisions (and with which I agree) are consistent with and indeed underpinned by common law principles.
+Lord Carnwath has drawn attention to the absence of direct authority for applying common law principles to a body like the Charity Commission which is the creature of a modern statute, by which its functions and powers are precisely defined; but the supervision of inquiries by the courts is a product of the common law, except insofar as there is a relevant statutory provision.
+Such enactments may go into greater or less detail about how an inquiry is to be conducted.
+The Inquiries Act 2005 contains detailed provisions about the conduct of an inquiry under that Act.
+Other Acts which provide for inquiries may be less detailed.
+To the extent that an enactment contains provisions about the disclosure of documents or information, such provisions have the force of law.
+But to the extent that Parliament has not done so, it must be for the statutory body to decide questions of disclosure, subject to the supervision of the court.
+I do not see the absence of a prior statement by the courts that in general the principle of openness should apply, subject to any statutory provisions and subject to any countervailing reasons, as a convincing reason for not saying so now.
+Principles of natural justice have been developed by the courts as a matter of common law and do not depend on being contained in a statutory code.
+As with natural justice, so with open justice.
+The power of disclosure of information about a statutory inquiry by the responsible public authority must be exercised in the public interest.
+It is not therefore necessary to look for a particular statutory requirement of disclosure.
+Rather, the question in any particular case is whether there is good reason for not allowing public access to information which would provide enlightenment about the process of the inquiry and reasons for the outcome of the inquiry.
+I do not understand there to be any disagreement between the members of the court about the desirability that information about statutory inquiries should be available to the public, unless there are reasons to the contrary.
+The disagreement is about the proper means of achieving that result.
+Lord Carnwath would achieve it by reference to article 10 and by reading section 32(2) in a manner contrary to Parliaments intention.
+For my part, I see no reason why the courts should not regard inquiry documents as having similar status to court documents, as Parliament intended, and applying similar principles.
+That approach is not undemocratic and does not usurp the function of Parliament.
+Lord Wilson considers that Parliament cannot have thought about what it was doing in enacting section 32(2) and that the subsection needs to be read down in order for the UK to be in compliance with article 10.
+It sometimes happens that the only sensible inference to be drawn regarding a legislative provision is that there was an oversight in the drafting process, but that is not the case here (as Hansard confirms).
+Parliament could, if it chose, have dealt with the question of access to inquiry documents in a different way, but in my judgment we should respect the fact that it chose to deal with them in the same way as court documents.
+The result is entirely workable; the common law is fully capable of protecting sufficiently whatever rights under article 10 Mr Kennedy may have.
+Given that a decision by a public authority about disclosure of information or documents regarding a statutory inquiry is capable of judicial review, what should be the standard of review? The normal standard applied by a court reviewing a decision of a statutory body is whether it was unreasonable in the Wednesbury sense (ie beyond rational justification), but we are not here concerned with a decision as to the outcome of the inquiry.
+We are concerned with its transparency.
+If there is a challenge to the High Court against a refusal of disclosure by a lower court or tribunal, the High Court would decide for itself the question whether the open justice principle required disclosure.
+Guardian News provides an example.
+I do not see a good reason for adopting a different approach in the case of a statutory inquiry, but the court should give due weight to the decision and, more particularly, the reasons given by the public authority (in the same way that it would to the decision and reasons of a lower court or tribunal).
+The reason for the High Court deciding itself whether the open justice principle requires disclosure of the relevant information is linked to the reason for the principle.
+It is in the interests of public confidence that the higher court should exercise its own judgment in the matter and that information which it considers ought to be disclosed is disclosed.
+The analysis set out above is based on common law principles and not on article 10, which in my view adds nothing to the common law in the present context.
+This is not surprising.
+What we now term human rights law and public law has developed through our common law over a long period of time.
+The process has quickened since the end of World War II in response to the growth of bureaucratic powers on the part of the state and the creation of multitudinous administrative agencies affecting many aspects of the citizens daily life.
+The growth of the state has presented the courts with new challenges to which they have responded by a process of gradual adaption and development of the common law to meet current needs.
+This has always been the way of the common law and it has not ceased on the enactment of the Human Rights Act 1998, although since then there has sometimes been a baleful and unnecessary tendency to overlook the common law.
+It needs to be emphasised that it was not the purpose of the Human Rights Act that the common law should become an ossuary.
+In the present case the inquiries which the Charity Commission conducted, under section 8 of the Charities Act 1993, into the operations of a charity formed by Mr George Galloway MP were of significant public interest.
+At the end of the inquiries the Commission published its conclusions, but the information provided as to its reasons for the findings which it made and, more particularly, did not make, was sparse.
+As a journalist, Mr Kennedy had good cause to want to probe further.
+It is possible that the Charity Commission may have had reasons for not wishing to divulge any further information, but such is the course which the proceedings have taken that it is impossible to tell at this stage.
+I regard it as unfortunate that Mr Kennedys request for further information was based solely on FOIA.
+I have considerable disquiet that Mr Kennedy has been unable to learn more about the Charity Commissions inquiries and reasons for its conclusions, and I should like, if possible, for there to be a proper exploration whether the Charity Commission should provide more.
+I am clear that this could be done through the common law, but it cannot be done through FOIA unless section 32(2) can properly be circumvented.
+I agree with Lord Mance that if article 10 applies in the present case, it is fulfilled by the domestic law. (It should generally not be difficult to tell whether the information sought is within section 32(2) because the statutory definition of an inquiry is clear.
+However, if for any reason the applicant was in doubt, he could ask the public authority to say whether it contended that the information was within section 32(2) and to explain its reason for saying so.
+If so, the public authority could not then complain about the applicant following the route of judicial review.)
+Lord Carnwath considers that article 10 would afford the advantage to Mr Kennedy that article 32(2) could be read down and Mr Kennedy would then have a simpler and cheaper mechanism for trying to obtain the information which he seeks.
+That supposes that judicial review is not an adequate remedy.
+In my view it is.
+It was the remedy used in Guardian News and would be the remedy in any case where there is a challenge to a refusal of disclosure of information by a court below the level of the High Court or by a tribunal.
+I do not see it as inappropriate for the same remedy to be available in relation to a statutory inquiry.
+There are other reasons why I consider that it would be wrong to read down section 32(2) in the way for which Mr Kennedy contends.
+First, it would go against the grain of FOIA to override section 32(2) in circumstances which Parliament considered the matter should be for the courts and where there is a remedy through the courts.
+Secondly, to read down section 32(2) in the manner proposed would have other undesirable consequences.
+Mr James Eadie QC rightly pointed out that under the construction proposed section 32(2) would not be reduced from an absolute exemption to a qualified exception, subject to a general public interest test (such as would be applied by a court), but would cease to have effect altogether at the end of the inquiry.
+Section 2 brings in a public interest test where there is a relevant exemption, but it is not a ground of exemption in itself.
+The only exemptions which would apply would be other specific exemptions in the Act but they do not cover all the ground which would be covered by a public interest test.
+For example, inquiry records or court records may include material detrimental to a persons reputation which the court or inquiry did not investigate on grounds of relevance.
+A court would have an obvious discretion not to order the disclosure of such material.
+In Guardian News the court referred in paras 65 to 66 to a decision of the Court of Appeals for the Second Circuit (Winter, Calabresi and Cabranes CJJ) in United States v Amodeo (1995) 71 F 3d 1044 in which this point was discussed.
+The approach of the US court was summarised by the Court of Appeal at para 66: The court commented that many statements and documents generated in federal litigation actually have little or no bearing on the exercise of judicial power because the temptation to leave no stone unturned in the search for evidence material to a judicial proceeding turns up a vast amount of not only irrelevant but also unreliable material.
+Unlimited access to every item turned up in the course of litigation could cause serious harm to innocent people.
+The court conclude that the weight to be given to the presumption of access must be governed by the role of the material at issue in the exercise of judicial power and the resultant value of such information to those monitoring the federal courts.
+An English court would be expected to perform a similar exercise, but I cannot see how the Information Commissioner would be able to do so if section 32(2) were read down in the way for which Mr Coppel contends.
+That is because the specific exemptions in FOIA do not give the Information Commissioner such a broad power.
+In short, the common law approach, which I consider to be sound in principle, runs with the grain of FOIA; it does not involve countermanding Parliaments decision to exclude inquiry documents from the scope of the Act; and it is consistent with the judgment of Parliament that in this context statutory inquiries should be viewed in the same way as judicial proceedings.
+It also produces a more just result, because a court is able to exercise a broad judgment about where the public interest lies in infinitely variable circumstances whereas the Information Commissioner would not have such a power.
+On a point of detail, the parallel which Mr Coppel drew with inquiries under the Inquiries Act 2005 does not assist him.
+He pointed out that under section 18(3) of the Inquiries Act, the exemption from FOIA under section 32(2) ceases to apply when the chairman at the end of the inquiry passes the inquiry documents to the relevant public department under the Inquiry Rules 2006, rule 18(1)(b).
+Mr Coppel argued that it was an unjustifiable anomaly that section 32(2) of FOIA should remain in force after the conclusion of other public inquiries.
+This argument seemed attractive at first, but it fails to take account of other relevant provisions of the Inquiries Act.
+Under section 19 the chairman may impose a restriction order on the disclosure or publication of any evidence or documents given to an inquiry.
+The section sets out the matters to which the chairman must have regard in deciding whether to make such an order, including any risk of harm or damage which may be avoided or reduced by the order.
+Under section 20, such a restriction continues in force indefinitely, subject to provisions of that section which include a power given to the relevant minister to revoke or vary the order after the end of the inquiry.
+In short, full provision is made for public interest considerations.
+In view of the approach which I have taken, I can deal shortly with the Strasbourg decisions on which Mr Coppel has relied.
+They have been comprehensively analysed by Lord Mance.
+Since this court reviewed the Strasbourg jurisprudence on article 10 in British Broadcasting Corpn v Sugar (No 2) [2012] UKSC 4; [2012] 1 WLR 439, there have been four further Strasbourg decisions on which Mr Coppel relies: Gillberg v Sweden (2012) 34 BHRC 247, Shapovalov v Ukraine (Application No 45835/05) (unreported) given 31 July 2012, Youth Initiative for Human Rights v Serbia (Application No 48135/06) (unreported), given 25 June 2013 and sterreichische Vereinigung zur Erhaltung, Strkung und Schaffung v Austria (Application No 39534/07) (unreported) given 28 November 2013.
+In the last of those cases, the First Section (at paragraph 41) highlighted among the courts earlier decisions the case of Trsasg v Hungary (2009) 53 EHRR 130, observing that the court had advanced from cases like Leander v Sweden (1987) 9 EHRR 433 towards a broader interpretation of the notion of the freedom to receive information and thereby towards a recognition of a right of access to information.
+It drew a parallel in this context with the case law on the freedom of the press and the need for the most careful scrutinywhen authorities enjoying an information monopoly interfered with the exercise of the function of a social watchdog.
+What is so far lacking from the more recent Strasbourg decisions, with respect, is a consistent and clearly reasoned analysis of the right to receive and impart information within the meaning of article 10, particularly in the light of the earlier Grand Chamber decisions.
+Mr Coppel submits that the courts direction of travel is clear, but the metaphor suggests that the route and destination are undetermined.
+If article 10 is to be understood as founding a right of access to information held by a public body, which the public body is neither required to provide under its domestic law nor is willing to provide, there is a clear need to determine the principle or principles by reference to which a court is to decide whether such a right exists in a particular case and what are its limits.
+To take the latest case, Osterreichische Vereinigung concerned information about decisions of a commission described as a judicial body (at para 28).
+In considering whether there had been an interference with the applicants rights under article 10, the court said that the applicant association had a watchdog role similar to that of the press, that it was involved in the legitimate gathering of information of public interest and that there had consequently been an interference with its right to receive and impart information under article 10 (paras 34 to 36).
+In considering whether the interference was justified, the court considered it striking that the commission was a public authority deciding disputes over civil rights but that none of its decisions was published in any form.
+The court concluded that its complete refusal to give access to any of its decisions was disproportionate (paras 46 to 47).
+On one interpretation the scope of the decision is extremely broad.
+Most information held by a public authority will be of some public interest, and article 10 would apply to any of it if a journalist, researcher or public interest group wanted access in order to generate a public debate, unless the authority could justify withholding it under the imprecise language of article 10.2.
+Alternatively, the case could be seen more narrowly as essentially a case about open justice.
+Like Lord Mance (at para 88) I cannot see the logic of using the existence of a duty of disclosure in domestic law as a platform on which to erect a duty under article 10, as distinct from article 6.
+As to the more radical suggestion that article 10 gives rise to a prima facie duty of disclosure of any information held by a public body which the applicant seeks in order to promote a public debate, this is flatly contradictory to the Grand Chamber decision in Leander.
+As Lord Mance has commented, it would amount to a European freedom of information law established on an undefined basis without the normal checks and balances to be expected in the case of freedom of information legislation introduced by a State after public consultation and debate.
+If the Leander principle is to be abrogated, or modified, in favour of an interpretation of article 10 which makes disclosure of information by a public body in some circumstances obligatory, it seems to me with respect that what the new interpretation would require is a clear, high level exegesis of the salient principle and its essential components.
+It is, however, unnecessary to say more in this case, because I see nothing in the Strasbourg jurisprudence which is inconsistent with what I have said regarding English domestic law.
+I agree with the conclusions of Lord Mance and I would dismiss this appeal for the same reasons.
+Like him, I emphasise that this conclusion does not mean that English courts lack the power to order a public body which has carried out a statutory inquiry into matters of public interest to provide such access to a journalist as may be proper for the exercise of their watchdog function, taking into account the relevant circumstances.
+It would be open to Mr Kennedy now to make a fresh request to the Charity Commission on the basis of this judgment.
+It would then be for the Administrative Court to consider any objection by the Charity Commission based on delay, but in considering such objection the court would need to take into account all the circumstances.
+Mention was briefly made in argument about the three month time limit imposed under CPR 54.5(1), but that is after the grounds for the application have arisen, which would be after any refusal of Mr Kennedys request.
+There could of course be argument that he should have made his first request on a different basis (as I would hold).
+Whether that should bar the claim from proceeding would be a matter for the court considering the application, but on the facts as they presently appear it would seem harsh that the claim should be barred not because of any delay on Mr Kennedys part in seeking the information but because of legal uncertainty about the correct route.
+LORD SUMPTION (with whom Lord Neuberger and Lord Clarke agree)
+I agree that this appeal should be dismissed, for the reasons given by Lord Mance and Lord Toulson.
+The Freedom of Information Act 2000 was a landmark enactment of great constitutional significance for the United Kingdom.
+It introduced a new regime governing the disclosure of information held by public authorities.
+It created a prima facie right to the disclosure of all such information, save insofar as that right was qualified by the terms of the Act or the information in question was exempt.
+The qualifications and exemptions embody a careful balance between the public interest considerations militating for and against disclosure.
+The Act contains an administrative framework for striking that balance in cases where it is not determined by the Act itself.
+The whole scheme operates under judicial supervision, through a system of statutory appeals.
+The right to receive information under article 10 of the Human Rights Convention has generated a number of decisions of the European Court of Human Rights, which take a variety of inconsistent positions for reasons that are not always apparent from the judgments.
+The more authoritative of these decisions, and the ones more consonant with the scheme and language of the Convention, are authority for the proposition that article 10 recognises a right in the citizen not to be impeded by the state in the exercise of such right of access to information as he may already have under domestic law.
+It does not itself create such a right of access.
+Other decisions, while ostensibly acknowledging the authority of the principle set out in these cases, appear to point towards a different and inconsistent view, namely that there may be a positive obligation on the part of the state to impart information under article 10, and a corresponding right in the citizen to receive it.
+However if (contrary to my view) there is a Convention right to receive information from public authorities which would not otherwise be available, no decision of the European Court of Human Rights suggests that it can be absolute or exercisable irrespective of the public interest.
+Accordingly, since disclosure under the Freedom of Information Act depends upon an assessment of the public interest, it is difficult to discern any basis on which the scheme as such can be regarded incompatible with the Convention, whichever of the two approaches is correct.
+Of course, the Strasbourg court may decide that the statutory scheme is compatible, but that particular decisions under it are not.
+But this case is concerned with the compatibility of the scheme, not the particular decision.
+The basis on which it is suggested that the scheme may not be compatible is that section 32, if it is to be construed as applying beyond the duration of the inquiry, is an absolute exemption more extensive than anything required to avoid disrupting the actual conduct of the inquiry.
+If this criticism is to carry any weight, what the critics have to say is that the application of section 32 forecloses any examination of the public interest in disclosure.
+But such a criticism would plainly be misconceived.
+The exemptions in the Act are of two kinds.
+There are, first of all, exemptions which reflect Parliaments judgment that the public interest requires information in some categories never to be disclosable under the Act.
+Exemptions of this kind include those under section 23 (information supplied by or relating to bodies dealing with national security), section 34 (information whose disclosure would infringe Parliamentary privilege) and section 41 (information received by a public authority under a legally enforceable confidence).
+The second category of exemption in the Act comprises cases where the Act does not need to provide for access to the information because there are other means of obtaining it on appropriate conditions for the protection of the public interest.
+Such exemptions include those in section 21 (information available by other means) and the section with which we are presently concerned, section 32, dealing with information held by a court or by virtue of having been supplied to an inquiry or arbitration,
+The point about section 32 is that it deals with a category of information which did not need to be covered by the Act, because it was already the law that information in this category was information for which there was an entitlement if the public interest required it.
+Leaving aside the rather special (and for present purposes irrelevant) case of documents held by virtue of having been supplied to an arbitration, the relevant principles of law are to be found in rules of court and in the powers and duties of public authorities holding documents supplied to an inquiry, as those powers and duties have been interpreted by the Courts and applied in accordance with general principles of public law.
+It cannot plausibly be suggested that this corpus of law fails to meet the requirements of article 10 of the Convention that any restrictions on the right recognised in article 10(1) should be prescribed by law.
+Its continued operation side by side with the statutory scheme under the Freedom of Information Act is expressly preserved by section 78 of that Act.
+This section overtly recognises that the Act is not a complete code but applies in conjunction with other rules of English law dealing with disclosure.
+Much of the forensic force of the Appellants argument arises from the implicit (and occasionally explicit) assumption that there could be no proper reason in the public interest for denying Mr Kennedy the information that he seeks.
+Therefore, it is suggested, the law is not giving proper effect to the public interest because it is putting unnecessary legal or procedural obstacles in Mr Kennedys way.
+I reject this suggestion.
+It is true that there is a legitimate public interest in the disclosure of information relevant to the performance of the Charity Commissions inquiry functions, and to this inquiry in particular.
+But the Charity Commission has never been asked to disclose the information under its general powers.
+It has only been asked to disclose it under a particular statute from which the information in question is absolutely exempt.
+This is not just a procedural nicety.
+If the Commission had been asked to disclose under its general powers, it would have had to consider the public interest considerations for and against disclosure which were relevant to the performance of its statutory functions under the Charities Act.
+Its assessment of these matters would in principle have been reviewable by the court.
+In fact, it has never been called upon to carry out this assessment, because Mr Kennedy chose to call for the information under an enactment which did not apply to the information which he wanted.
+We cannot know what the decision of the Charity Commission would have been if they had been required to exercise their powers under the Charities Act.
+We know nothing about the contents or the source of the information in the documents held by the Commission, or the basis on which it was obtained, apart from the limited facts which can be inferred from its report, the schedule of documents and the evidence in these proceedings.
+Because this appeal is concerned only with the effect of section 32, and the Convention so far as it bears on section 32, none of this material has been relevant and we have not seen it.
+It cannot necessarily be assumed that if Mr Kennedy had asked for disclosure under the Charity Commissions general powers, the resulting decision would have been favourable to him.
+It might or might not have been.
+No one has disputed that section 32 applies in this case if the exemption for which it provides extends beyond the duration of the inquiry.
+We are therefore presumably concerned with information which the Commission holds only by virtue of its having been given to the Charity Commission for the purposes of the inquiry.
+That information presumably emanates from persons or bodies who are not themselves public authorities.
+Otherwise it would have been disclosable by those authorities under other provisions of the Freedom of Information Act.
+While other statutory qualifications or exemptions might have in that event been relevant, section 32 would not have been.
+The information is therefore likely to have been supplied to the Commission by private entities or possibly by foreign public authorities, and supplied only for the inquiry, not for any other purpose.
+The inference from the Commissions report is that a significant part of it came from foreign entities, and therefore could not have been obtained under the Commissions power to requisition information under section 9 of the Charities Act.
+In its letter of 4 July 2007, the Commission showed that it was well aware of the public interest for transparency of the decisions and reasons for them, so as to promote public confidence in charities.
+But it considered at that time that its dependence on the co operation of third parties in carrying out its inquiry meant that that particular public interest was outweighed by the competing public interest in its being able to discover the relevant facts.
+The importance of encouraging voluntary co operation with an inquiry by those possessing relevant information is a recognised public interest which may be highly relevant to the question whether it should be further disclosed: see Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627, 637 638 (Lord Diplock).
+The statements made in the Commissions letter may or may not prove to be its final position.
+But the point made there cannot be brushed aside.
+LORD WILSON
+In April 2003, shortly before he became its Investigations Editor, Mr Kennedy wrote an article for The Times about the Mariam Appeal (the appeal) which had been founded in 1998 by Mr George Galloway and which had recently closed down.
+In 2003 Mr Galloway was a high profile Member of Parliament, as he is again today.
+He had for many years been an outspoken critic of the economic sanctions imposed by the United Nations upon the regime of Saddam Hussein in Iraq.
+He had contended that one of their consequences had been to deprive Iraqi citizens of necessary medical treatment.
+The objects of the appeal, as stated in its constitution, had been to provide medical assistance to the Iraqi people, to highlight the causes of an epidemic of cancer in Iraq and to arrange for the medical treatment outside Iraq of certain Iraqi children.
+The appeal had been named after Mariam Hamza, a young Iraqi girl who was suffering from leukaemia.
+In his article in April 2003 Mr Kennedy alleged that money donated by the public to the appeal had been improperly used to fund visits by Mr Galloway to Iraq and elsewhere and to support political campaigns against the UN sanctions and against Israel.
+A reader of the article seems to have referred it to the Attorney General, who, as an officer of the Crown, has a long standing role as the protector of charities.
+The Attorney referred it on to the Charity Commission (the Commission).
+In 2003 the Commission was governed by the Charities Act 1993 (the 1993 Act), which was later amended by the Charities Act 2006 and which has now been replaced by the Charities Act 2011.
+The Commission has five objectives, of which the first is to increase public trust and confidence in charities, the third is to promote compliance by charity trustees with their legal obligations of control and management and the fifth is to enhance the accountability of charities to donors, beneficiaries and the general public (section 1B(2) of the 1993 Act, as amended).
+The Commission has five general functions, of which the third includes the investigation of apparent misconduct in the administration of charities and the fifth includes the dissemination of information in connection with the performance of its other functions and the pursuit of its objectives (section 1C(2)).
+The Commission has six general duties, of which the fourth is that, in performing its functions, it should have regard to the principles of best regulatory practice, including those of accountability and transparency (section 1D(2)).
+The Commission also has power to institute an inquiry with regard to a particular charity: section 8 of the 1993 Act.
+In June 2003 it instituted an inquiry into the application of the money raised by the appeal between March 1998 and April 1999.
+In November 2003 it instituted a second inquiry into the application of the money raised by the appeal throughout its years of operation.
+The two inquiries were combined.
+In June 2004, pursuant to its power under section 8(6)(a) of the 1993 Act, the Commission published its statement of the results of the two inquiries.
+In the statement, which was very short, it expressed the following conclusions: (a) that the objects of the appeal had been charitable and that, in the light of the size of its income, it should have been registered with the Commission as a charity but that the founders of the appeal had acted on legal advice to the contrary and so were unaware that they had created a charity; (b) (c) (d) (e) (f) (g) (h) (i) that, apart from members of the public, the major donors to the appeal had been the United Arab Emirates, someone in Saudi Arabia and a Jordanian citizen, namely Mr Zureikat; that Mr Galloway had confirmed that the appeal did not produce profit and loss accounts or balance sheets; that the Commission had been unable to obtain all the financial records of the appeal; that Mr Galloway had explained that, when in 2001 the chairmanship of the appeal had been transferred from himself to Mr Zureikat, he had sent the records to him in Jordan and Iraq and was unable to retrieve them; that Mr Galloway had assured it that all monies received by him out of the funds of the appeal had related to expenses incurred by him when he had been chairman of it; that two of the trustees had received salaries out of appeal funds in breach of trust but that their work had been of value to the appeal and no one had acted in bad faith in that regard, with the result that the Commission would not be taking steps to recover the salaries; that funds had been used to further political activities, in particular the campaign against the sanctions, but that the activities had been ancillary to the purposes of the appeal in that the trustees might reasonably have considered that they might secure treatment for sick children; and that, not only because the appeal had closed down but also because the political activities had been ancillary to its purposes and its records had been difficult to obtain, it was not proportionate for the Commission to pursue its inquiries further.
+Mr Kennedy did not immediately seek information about the statement published in June 2004.
+Later, however, he sought information designed to elucidate issues, raised by the statement, in relation to the way in which the funds of the appeal had been deployed (with particular reference to para 5(d), (e), (g) and (h) above) and to the way in which the Commission had conducted its inquiries (with particular reference to para 5(h) and (i) above).
+The UN Oil for Food Programme, which ran from 1996 to 2003, enabled the Iraqi state to sell oil in return for payments made into an account controlled by the UN from which Iraq was entitled to draw only for the purchase of food and other humanitarian related goods.
+In 2005 reports by the UN and by the US Senate concluded that the programme had attracted improper payments of commissions to, or at the direction of, members of the Iraqi government by Iraqi companies keen to be allowed to participate in sales either of the oil or of the humanitarian related goods; and that the appeal had received donations which represented some of these improper payments.
+Thus in December 2005 the Commission instituted a third inquiry into the appeal under section 8 of the 1993 Act.
+In June 2007 it published a statement of the results of this inquiry under section 8(6).
+In the statement, which was even shorter than the first, the Commission said that it had examined a large body of sensitive evidence obtained from international sources.
+It added that it had directed the five known members of the executive committee of the appeal, whom it took to be its trustees, to answer questions and that, while the three members resident in the UK (including Mr Galloway) had done so, the two resident abroad (including Mr Zureikat) had not done so.
+The Commission then proceeded to express the following conclusions: (a) (b) (c) (d) (e) that the funds known to have been paid into the appeal totalled 1,468,000, of which Mr Zureikat had donated over 448,000; that, of the funds donated by Mr Zureikat, about 300,000 represented his improper receipt of commissions referable to the Oil for Food programme; that Mr Galloway and the other trustees resident in the UK denied all knowledge of the source of Mr Zureikats donations; that, although unaware that they had created a charity, the trustees should have been aware that they had created a trust, which required them to be vigilant in accepting large donations, particularly from overseas; that, in breach of their duty of care, the trustees had failed to make sufficient inquiries into the source of Mr Zureikats donations; (f) (g) that Mr Galloway himself, however, may have known of the connection between the appeal and the programme (by which the Commission appears to have meant that, despite his denial, he may have known the source of Mr Zureikats donations); and that the Commission had liaised with other agencies in relation to possible illegality surrounding Mr Zureikats donations but, in the light of the closure of the appeal in 2003 and the distribution of all its funds, it proposed to take no further action.
+On the date of publication of this second statement Mr Kennedy made his request for information to the Commission under the Freedom of Information Act 2000 (the FOIA).
+He considered that the statement was surprisingly short and extremely unsatisfactory.
+He took the view that Mr Galloways possible misconduct in relation to the appeal was a matter of considerable public importance and that the material said to justify the serious allegations made against him had not been identified.
+Mr Galloway, for his part, was equally critical of the statement.
+He announced that its conclusion that the appeal had received improper funds was palpably false and that parts of it were sloppy, misleading and partial and would have been corrected if the Commission had bothered to interview him.
+The Commission later responded that Mr Galloway had declined its invitation to interview him.
+At an early stage of the protracted litigation to which it has given rise, Mr Kennedy confined his request for information to the following four classes of documents: (a) (b) (c) (d) those which explained the Commissions conclusion that Mr Galloway may have known that Iraqi bodies were funding the appeal; those by which it had invited Mr Galloway to explain his position and by which he had responded; those which had passed between it and other public authorities; and those which cast light on the reason for the institution and continuation of each of the three inquiries.
+All members of this court agree that, in principle, the Commissions two statements raise questions of considerable public importance and that Mr Kennedys confined request would assist in answering them.
+What was the extent of the breach of duty on the part of Mr Galloway, a public figure and a Member of Parliament, in relation to the well publicised appeal? Could the doubt about his knowledge of the source of Mr Zureikats donations reasonably have been resolved in one way or the other? What was the reason for the Commissions apparent failure to interview Mr Galloway? Did the Commission conduct the inquiries with sufficient rigour? Were other parts of the statements, for example their treatment of his expenses and of the funding of political activities, unduly indulgent towards Mr Galloway? To the extent that they were unduly indulgent, why so?
+In making his confined request Mr Kennedy was careful to acknowledge, first, that parts of the information sought might attract absolute exemption under the FOIA (for example to the extent that it was covered by Parliamentary privilege under section 34 or represented either personal information under parts of section 40 or information provided in confidence under section 41); and, second, that other parts of it might fall within some of the qualified exemptions set out in the FOIA and, if so, would require the weighing of the rival public interests pursuant to section 2(2).
+Indeed, when the Commission came to prepare a schedule of the documents held in connection with the inquiries (which it said were held in 25 lever arch files, as well, in part, as electronically), it indicated, in relation to each document, the exemption or exemptions prescribed by the FOIA on which it proposed, if necessary, to rely.
+Among the indicated exemptions was one which it ascribed to every document, namely that provided by section 31 of the FOIA.
+The effect of section 31(1)(g), read together with section 31(2)(b), (c) and (f), is to raise a qualified exemption in relation to information of which disclosure would be likely to prejudice the Commissions exercise of its functions for the purpose of ascertaining whether anyone has been guilty of improper conduct in relation to a charity or whether the circumstances justify regulatory action or for the purpose of protecting the administration of charities from mismanagement.
+So it is an important exemption reflective of the public interest that the Commission should function effectively.
+In its evidence the Commission argued that substantial disclosure to Mr Kennedy would forfeit the confidence of those who had cooperated, or might otherwise cooperate, with its inquiries and so would prejudice the future exercise of its functions for the specified purposes.
+One might have anticipated lively argument on behalf of the Commission in that respect, as in others, had it to date been necessary to proceed to consider the qualified exemptions.
+But the argument which finds favour with the majority of the members of this court is that section 32(2) of the FOIA provides an absolute exemption from disclosure at any rate under the FOIA of any of the information in any of the documents held in the lever arch files, apart from that contained in about seven documents which the Commission received or created following the end of the third inquiry and which have therefore already been disclosed.
+The four steps in the argument are (1) that all the other information is contained in documents placed in the Commissions custody, or created by it, for the purposes of the three inquiries; (2) that the Commission holds the information only by virtue of its being so contained; (3) that, on the application to section 32(2) of conventional canons of construction, facts (1) and (2) satisfy its requirements; and (4) that the rights of Mr Kennedy under article 10 of the European Convention on Human Rights (the ECHR) are not such as, under section 3(1) of the Human Rights Act 1998 (the 1998 Act), to require that, so far as possible, section 32(2) be construed differently so as to be compatible with them.
+In my view the closest scrutiny needs to be given to the only debateable step in the argument, which is step (4).
+Were that step valid, the result would be that, instead of a document by document inquiry into the applicability of other absolute exemptions, or of qualified exemptions followed (if applicable) by the weighing of public interests under section 2(2), a blanket exemption from disclosure under the FOIA is thrown over the entire information.
+Every part of it would be exempt from disclosure under the FOIA irrespective of its nature; of the degree of legitimate public interest which its disclosure might generate or help to satisfy; and of the degree of harm (if any) which its disclosure might precipitate.
+The Commission stresses that the information would not be exempt from disclosure under the FOIA for ever.
+Following 30 years (reduced to 20 years but not in respect of a record created prior to 2013) from the year in which it was created, a record becomes a historical record, information in which is not exempt under section 32 of the FOIA: see sections 62(1) and 63(1).
+But, in this regard, one must also have an eye to the Public Records Act 1958.
+The effect of section 3(4) of the 1958 Act is that, by the end of that period of 30 years, such documents relating to the inquiries as still exist will have been transferred by the Commission to The National Archives.
+But not all the documents currently in the 25 lever arch files will then still exist: for, pursuant to section 3(1) of the 1958 Act, the Commission will have arranged for the selection of the documents which in its view merit permanent preservation in The National Archives and, pursuant to section 3(6), it will have caused the remainder to be destroyed.
+It is unreal to suggest that, subject to any continuing exemptions, likely access to some of the information after 30 years would satisfactorily meet the public interest, which Mr Kennedy aspires to satisfy, in the conduct of a public figure in relation to a charity and in the quality of the Commissions supervision of it.
+The suggested exemption from disclosure at any rate under the FOIA of the information in the Commissions documents for a generation is even more startling when attention is paid to the laws treatment of disclosure of two other classes of documents addressed by section 32.
+First, court records.
+A court is not a public authority for the purposes of the Act.
+But, particularly if it is or has been a party to court proceedings, a public authority is likely to hold copies of documents filed with the court, or created by the court, for the purposes of such proceedings.
+Information thus held by a public authority enjoys absolute exemption from disclosure: section 32(1).
+But the court itself will also hold copies of those documents.
+Thus, by way of counter balance to the exemption from disclosure of such information if held by a public authority, there is the right of the citizen to obtain copies of specified documents from the court file (rule 5.4C(1), Civil Procedure Rules 1998) and the power of the court to permit him to obtain copies of, in effect, all other documents on the file (rule 5.4C(2)).
+The citizens right and the courts power are each exercisable at any stage, whether while the proceedings are pending or following their conclusion.
+Second, records of inquiries held under the Inquiries Act 2005 (the 2005 Act).
+Section 32(2) of the FOIA applies to information contained in documents placed in the custody of, or created by, a person conducting an inquiry held under any statutory provision: section 32(4)(c).
+By contrast with the Commissions inquiries, held under section 8 of the 1993 Act, inquiries are sometimes held at the direction of a minister, within terms of reference set out by him, under the 2005 Act.
+At the end of such an inquiry, its chairman must cause documents given to, or created by, the inquiry to be passed to, and held by, the minister: see rule 18(1)(b), Inquiry Rules 2006 (SI 2006/1838).
+Section 18(3) of the 2005 Act provides that section 32(2) of the FOIA does not apply in relation to information contained in documents thus passed to, and held by, the minister (being a public authority).
+It is true that, under section 19 of the 2005 Act, the minister and the chairman may each, prior to the end of the inquiry, impose restrictions on the disclosure of material provided to it if they consider them conducive to the fulfilment of the inquirys terms of reference or necessary in the public interest: subsections (1), (2) and 3(b).
+Importantly, however, the restrictions do not, subject to an irrelevant exception, apply to disclosure by the minister himself (or by any other public authority holding any of the material) following the end of the inquiry: section 20(6).
+Parliament has therefore seen fit to remove the absolute exemption under section 32(2) of the FOIA from material created or produced for an inquiry held under the 2005 Act once it has come to an end and to allow disclosure of it thereafter to be governed by the suite of qualified exemptions and of the other absolute exemptions set out in the FOIA.
+In opposing Mr Kennedys appeal, the Commission has been unable to explain why the disclosure of material referable to statutory inquiries held otherwise than under the 2005 Act should apparently be governed so differently.
+In my view the difficult question is whether Mr Kennedy has human rights apt enough and strong enough to repel the apparent obstruction of him, and therefore of his readers, by section 32(2) of the FOIA from addressing the concerns which I have identified through disclosure under that Act.
+The right under article 10 of the ECHR is to freedom of expression, including freedom to hold opinions and to receive and impart information and ideas without interference by public authority.
+So the receipt of information is expressly included within the right.
+The right has to be without interference by public authority.
+These words have given rise to a narrow, ostensibly a pedantic, question of the sort against which the court in Strasbourg often sets its face: is the public authority basically restrained from interfering only with a persons receipt of information from another private person willing to impart it (the Leander approach) or does the restraint extend to interference with, in other words to obstruction of, a persons receipt of information from the public authority itself (the wider approach)? A purely textual answer, with particular concentration on the word freedom, might favour the narrow approach.
+That answer would also respect the negative phraseology of the public authoritys obligation, whereas the opposite answer would give rise to a positive obligation of what, subject to whatever interpretation may be placed upon paragraph 2 of the article, might prove to be of substantial proportions.
+Nevertheless a brief reflection on the nature of freedom of expression suggests difficulties with the narrow approach.
+Without freedom to receive certain information, there is no freedom to proceed to express it; and a persons freedom to express the information is likely to carry much greater value for the public if the person holding the information is unwilling to impart it to him.
+In his illuminating and appropriately cautious discussion of these tensions in Freedom of Speech, 2nd ed (2005), Professor Barendt states, at p 110, that the link between freedom of expression and freedom of information is undeniable.
+Indeed, if efficacy is to be given to the right to freedom of expression, there is no reason to consider that information held by a public authority (whether relevant to itself or to a private person or, as in the present case, to both) is of lesser significance to it than information held by a private person.
+On the contrary.
+It is with these difficulties that the European Court of Human Rights (the ECtHR) has recently been required to wrestle.
+Lord Mance has charted the iteration by the ECtHR in 1987 of what it described as the basic scope of the right to receive information under article 10 in the Leander case and of its reiteration in the Gaskin, Guerra and Roche cases (all cited by him in para 63 above).
+The trouble is that, apart from that of Guerra, the cases were all in some quarters controversially subjected to principal analysis under article 8 instead of under article 10, with the result that the treatment of article 10 was extremely short.
+Even in the Guerra case it was article 8 which won the day for those living under the polluted Italian skies who had complained that their right to receive information about the attendant risks had been violated.
+They had however cast their claim primarily under article 10 and so in their case there was fuller treatment of article 10 than in the other cases.
+It is within that fuller treatment that the first straws in the wind can be discerned.
+First, a majority of the Commission of the ECtHR had considered that a positive obligation on the state under article 10 to ensure a right to receive information could not be excluded in principle and, in the light of the environmental dangers, had arisen in the present case (paras 42 and 47 of the Commissions opinion, set out in para 36 of the ECtHRs judgment).
+Indeed that majority had gone further by suggesting that the states obligation under article 10 was to collect relevant information as well as to impart what it already held (para 49 of its opinion).
+As a preface to its rejection of that opinion the ECtHR, by a majority, recognised but of course distinguished cases in which the general public had a right to receive information as a corollary of the specific journalistic function of imparting information on matters of public interest; then, prior to turning to article 8, it explained its disagreement with the Commission but specifically with regard to the suggested obligation to collect and disseminate information (para 53).
+In separate opinions one judge of the ECtHR agreed with the Commissions analysis of the scope of article 10 and six others explained that their disagreement with it applied only to the authoritys suggested obligation to collect information rather than to impart what it already held.
+All this was being said back in 1998.
+From these early straws it is necessary to chart the ECtHRs incremental development of the wider approach in no less than six decisions over the last five years.
+First, the Trsasg case, cited by Lord Mance in para 71 above.
+I agree with him at para 74 that its significance is lessened by Hungarys concession that article 10 was engaged.
+I cannot accept however that the ECtHR was setting itself up as some further Hungarian appellate court and holding only that the court of appeal there had misapplied its Data Act.
+The ECtHR, at paras 35 to 38: (a) cited the Leander case; (b) asserted, albeit without much basis, that the court had recently advanced towards a broader interpretation of article 10; (c) distinguished the Guerra case on the basis that there the request had been for the state to collect information rather than to disclose what it already held; (d) held that, in requesting the constitutional court to disclose the MPs complaint, the civil liberties union was acting, like the media, as a social watchdog seeking to generate informed public debate; and concluded that, in refusing the request, the constitutional court, which had a monopoly over the information, had unnecessarily obstructed that debate. (e)
+Second, the Kenedi case, also cited in para 71 above.
+The historians complaint under Article 10 was upheld on the basis that Hungarys protracted obstruction of his request for information about the functioning of its security service in the 1960s had not been prescribed by law.
+For present purposes the significance of the case lies in the ECtHRs statement, at para 43, that access to original documentary sources for legitimate historical research was an essential element of the right to freedom of expression, for which it cited the Trsasg case.
+Third, the Gillberg case, cited in para 76 above.
+The applicant complained that his criminal conviction for misuse of public office, namely for disobeying court orders that the material collected by his university in its study of a mental disorder should be disclosed to K and E, somehow violated his rights under article 10.
+The complaint was so bizarre that, in rejecting it, the Grand Chamber had no need to attend to the recent widening of the ambit of the article in aid of the generation of important debate by social watchdogs.
+At para 83 it set out the Leander approach but more significantly noted at para 93 that K and E had rights to receive the material under article 10 upon which the applicants suggested right would impinge.
+Fourth, the Shapovalov case, also cited in para 76 above.
+The journalist complained that his rights under article 10 had been violated by Ukraines refusal to disclose the arrangements made by its electoral commission for the controversial elections in 2004.
+The ECtHR rejected his complaint on the basis that, in one way and another, he had already been given access to information about the arrangements.
+The significance of the decision, made by a different section of the court (over which, as it happens, the current president of the entire court was then presiding), lies in its citation (at para 68) of the Trsasg case for the proposition that the nondisclosure of information of public interest might disable public watchdogs from playing their vital role.
+Fifth, the Youth Initiative case, also cited in para 76 above.
+The complaint under article 10 was upheld on the basis that, in defying a domestic order to inform the applicant of the number of people subjected to electronic surveillance in 2005, Serbias interference with its rights had not been in accordance with law.
+The residual significance of the ECtHRs decision lies in the attention which, underlined in a concurring opinion, it gave at para 13 to a statement in 2011, entitled General Comment No 34, of the UN Human Rights Committee that a parallel article (article 19 of the International Covenant on Civil and Political Rights) included a right of access by the media to information of public interest held by public bodies; and in the approval which, at para 20, the court gave to the assertion in the Trsasg case of that same principle in favour of public watchdogs for the purposes of article 10.
+And sixth, and most importantly, the sterreichische case, also cited in para 76 above.
+There, four months ago, the ECtHR reminded itself of the Leander approach; noted however the recognition in the Trsasg case of the courts recent advancement towards the broader approach; observed that information could not be imparted unless it had been gathered; accepted that the purpose behind transfers of land in the Tyrol was a subject of general interest; described the applicant as a social watchdog in that regard; held that the applicant had rights under article 10 with which the refusal of the Regional Tyrol Commission to disclose its decisions on appeal from the local commissions had interfered; and concluded that, although it was prescribed by Austrian law, the interference was unnecessary in that it was a blanket refusal to disclose any of the regional commissions decisions.
+I cannot subscribe to the view that the development of article 10 which was in effect initiated in the Trsasg case has somehow been irregular.
+The wider approach is not in conflict with the basic Leander approach: it is a dynamic extension of it.
+The judgment in the Trsasg case is not some arguably rogue decision which, unless and until squarely validated by the Grand Chamber, should be put to one side.
+Its importance was quickly and generally recognised.
+Within a year of its delivery the European Commission For Democracy Through Law (the Venice Commission) had hailed it as a landmark decision on the relation between freedom to information and the Convention (Opinion No 548/2009, 14 December 2009); and, in giving the judgment of the Court of Appeal in Independent News and Media Ltd v A [2010] EWCA Civ 343, [2010] 1 WLR 2262, Lord Judge CJ had, at para 42, specifically endorsed that description of it.
+In his judgment in the Sugar case, cited by Lord Mance at para 61 above, Lord Brown of Eaton under Heywood, with whom Lord Mance had agreed at para 113, had rejected at para 94 the proposition that, in the light in particular of the Trsasg case, Mr Sugar had had any right under article 10 to disclosure by the BBC of a report held by it for journalistic purposes.
+But, as Lord Brown had proceeded to demonstrate at paras 98 to 102, interference by the BBC with any possible right of Mr Sugar under article 10 had clearly been justified; and that was the basis on which, at para 58, I had associated myself with the rejection of Mr Sugars invocation of article 10.
+In the light of the judgments of the ECtHR delivered following this courts decision in the Sugar case, in particular in the sterreichische case, this court should now in my view confidently conclude that a right to require an unwilling public authority to disclose information can arise under article 10.
+In no sense does this betoken some indiscriminate exposure of sensitive information held by public authorities to general scrutiny.
+The jurisprudence of the ECtHR, of which this court must always take account and which in my view it should in this instance adopt, is no more than that in some circumstances article 10 requires disclosure.
+In what circumstances? These will fall to be more clearly identified in the time honoured way as, in both courts, the contours of the right are tested within particular proceedings.
+The evolution of the right out of freedom of expression clearly justifies the stress laid by the ECtHR on the need for the subject matter of the request to be of public importance.
+No doubt it also explains the importance attached by that court to the status of the applicant as a social watchdog; whether that status should be a pre requisite of the engagement of the right or whether it should fall to be weighed in assessing the proportionality of any restriction of it remains to be seen.
+Equally references in the ECtHR to the monopoly of the public authority over the information may need to find their logical place within the analysis: thus, in the absence of a monopoly, an authoritys non disclosure may not amount to an interference.
+Where the article is engaged and where interference is established, the inquiry will turn to justification under para 2.
+If refusal of disclosure has been made in accordance with an elaborate statutory scheme, such as the FOIA, the public authority will have no difficulty in establishing that the restriction has been prescribed by law; and the live argument will surround its necessity in a democratic society, in relation to which the line drawn by Parliament, if susceptible of coherent explanation, will command a substantial margin of appreciation in the ECtHR and considerable respect in the domestic courts.
+Irrespective of its precise contours, the right to require a public authority to disclose information under article 10 applies to Mr Kennedys claim against the Commission.
+Mr Kennedy can tick all the boxes to which I have referred.
+I will spend no time before concluding that a blanket prohibition on his receipt of any of the information for 30 years would be disproportionate to any legitimate aim; and, but for the argument to which I must now turn, this court should proceed to consider whether, pursuant to section 3 of the 1998 Act, it is possible to read section 32(2) of the FOIA so as to escape any such blanket prohibition.
+I confess to some surprise at the solution to this appeal which the majority of the members of this court now devise.
+As Lord Mance explains in para 6 above, their solution lies in interpreting the intention of Parliament in including the 30 year prohibition within section 32 of the FOIA as being not that the documents should necessarily be exempt from disclosure for 30 years but that their disclosure should be regulated, otherwise than under the FOIA, by the different and more specific schemes and mechanisms which govern the operations of, and disclosure by, courts, arbitrators and persons conducting inquiries.
+In relation to documents filed in, or created by, courts, or served in connection with proceedings in courts, there is no difficulty in subscribing to Lord Mances interpretation.
+In that, as I have explained in para 175 above, courts are not subject to the FOIA and naturally have their own system for regulating disclosure of documents on their files, it is clearly undesirable that those seeking court documents of which copies happen to have come into the possession of public authorities should be entitled to require the latter to make disclosure under a different regime, namely the FOIA, which might prove less restrictive, or for that matter more restrictive, than it would be if made pursuant to a determination of the court.
+Hence subsection (1) of section 32 of the FOIA.
+But what was the Parliamentary intention behind subsection (2)? How much thought can have gone into its conclusion that, in the words of the Minister quoted by Lord Toulson at para 120 above, statutory inquiries have a status similar to courts and therefore that information in inquiry documents should, by subsection (2), be swept into the exemption aptly made in subsection (1) in respect of information in court documents?
+In searching for what are said to be the more specific schemes and mechanisms which govern disclosure by persons conducting inquiries (for in the present case we can ignore arbitrators), let me first address inquiries under the 2005 Act.
+In relation to them, there is no scheme, apart from the FOIA, which governs disclosure following the end of an inquiry.
+What governs their disclosure is the FOIA.
+In providing in section 18(3) of the 2005 Act that, when, following the end of an inquiry, the chairman passes the documents to the minister who established it, the 30 year prohibition ceases to apply, Parliament was not recognising that the FOIA did not apply to disclosure of them.
+On the contrary, it was recognising that the FOIA did apply to them in every respect until that point and that, save in respect of the 30 year prohibition which beyond that point could not be justified, it should continue to apply to them.
+The analogous provision in section 20(6) of the 2005 Act, namely that restrictions on disclosure imposed by the minister or the chairman prior to the end of the inquiry should not thereafter have effect, reflects the same thinking: namely that, in the absence of justification for non disclosure under the specific provisions of the FOIA, the documents then fell to be disclosed thereunder.
+So the regime for disclosure in respect of inquiries conducted under the 2005 Act entirely undermines the conclusion that disclosure referable to inquiries is not to be governed by the FOIA; and of course the regime is precisely that for which Mr Kennedy contends in relation to inquiries conducted otherwise than under the 2005 Act.
+In para 33 above Lord Mance responds that Parliaments perception in 2005 of a need to disapply the 30 year prohibition in relation to disclosure of documents following the end of inquiries conducted under the new Act sheds no light on its perception in 2000.
+But his observation raises two linked questions.
+If Parliament had addressed the point in 2000, on what basis might its perception have been different? And, if in 2005 some other adequate scheme for disclosure was available, why did it perceive a need to disapply the prohibition and to cause disclosure to be governed by the other, specific provisions of the FOIA?
+What, then, is suggested to be the more specific scheme and mechanism which governs disclosure by persons, such as the Commission, who conduct inquiries otherwise than under the 2005 Act? In respect of the Commission the scheme is said to lie within the 1993 Act, augmented by the common law.
+If so, one might expect to find it in section 8 of the 1993 Act, which defines the powers of the Commission in its conduct of inquiries and which does, at subsection (6), address a degree of publication in that regard.
+But it is only a report, or another statement of the results, of the inquiry which the subsection permits or possibly obliges the Commission to publish.
+The subsection does not address the disclosure of documents held by the Commission for the purpose of the inquiry.
+Section 10A provides for disclosure of a broader category of information by the Commission, which would no doubt include information obtained for the purposes of an inquiry; but that section provides for disclosure only to public authorities.
+The result is that there is no specific scheme for disclosure of such information to private citizens at all.
+The scheme is instead said to lie in the overall definitions of the Commissions objectives, functions and duties in sections 1B, 1C and 1D of the 1993 Act: in particular in its objective of increasing public confidence in charities (section 1B(3)1); in its general function of disseminating information in connection with the performance of its functions (section 1C(2)5); and in its duty to have regard to the need for transparency of regulatory activities in the performance of its functions (section 1D (2) (4)).
+It has never been suggested to Mr Kennedy, whether by the Commission itself in its initial responses to his request for information under the FOIA in 2007 or later through solicitors, that his request should be made otherwise than under the FOIA.
+On the contrary the stance of the Commission has been that the FOIA indeed governed his request and that its terms precluded accession to it.
+There did come a time, apparently in the Court of Appeal, when counsel for the Commission began to argue, as they have continued to argue in this court, that, when read with section 78 of the FOIA, sections IC and ID of the 1993 Act conferred a residual power on the Commission to disclose documents.
+But counsel have never accepted that the Commission was under any duty in this regard or that the circumstances of Mr Kennedys request might be such as to attract exercise of the suggested power in his favour.
+The majority of my colleagues in this court proceed to introduce the suggestion that the scheme for disclosure which they discern in sections 1C and 1D of the 1993 Act is underpinned by the common law principle of open justice which, in an eloquent judgment delivered when he was a member of the Court of Appeal, Lord Toulson invoked in explaining why journalists were entitled to disclosure by a magistrates court of witness statements and correspondence to which reference had been made at a hearing of applications for extradition orders: see R (Guardian News and Media Ltd) v City of Westminster Magistrates Court cited in para 47 above.
+The result, according to the majority, is that, confronted with a request such as that of Mr Kennedy for disclosure of the material in the exercise of its functions and in the performance of its duties under sections 1C and 1D of the 1993 Act, the Commission has a duty to accede to it in the absence of persuasive countervailing considerations (Lord Mance, at paras 49 and 56); and that a refusal to disclose could be the subject of challenge in the form of judicial review by a High Court judge, who should adjust the level of his scrutiny so as to accord with the principles of accountability and transparency contained in the 1993 Act (Lord Mance, at para 55).
+In my view the scheme identified by the majority for disclosure by the commission outside the FOIA is profoundly unsatisfactory.
+With respect, it can scarcely be described as a scheme at all and there is certainly no example of its prior operation or other recognition of its existence.
+Compare it with the scheme under the FOIA which, apart from the apparent prohibition for 30 years, identifies an elaborate raft of prescribed situations in which the Commission is entitled, or subject to the weighing of rival interests may be entitled, to refuse disclosure; and under which a refusal can be countered by application to an expert, namely the Information Commissioner, who takes the decision for himself (section 50(1)) and whose decision can be challenged on points of law or even of fact by an expert tribunal (section 58(1)) and in effect without risk as to costs.
+Although the majority of my colleagues reject Mr Kennedys assertion that he has rights under article 10 which are engaged by his request for disclosure by the Commission, they proceed to suggest that his entitlement to disclosure otherwise than under the FOIA would be likely to be as extensive as any entitlement under article 10 (Lord Mance, paras 45, 50, 56, 92 and 101(iv)).
+The suggested scheme otherwise than under the FOIA is so vague and generalised that I regard the determination thereunder of any request for disclosure as impossible to predict.
+It may be that, in practice, the Commission and, on judicial review, the High Court judge would reach for the helpful prescriptions in the FOIA and, in effect, work in its shadow.
+But if, as I consider, Mr Kennedys rights under article 10 are engaged by his request, I even have doubts whether any refusal to disclose a document otherwise than under the FOIA could be justified under para 2 of the article.
+For restrictions on the exercise of his rights under article 10 must be prescribed by law, which in the words of the ECtHR, must be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual if need be with appropriate advice to regulate his conduct (Gillan and Quinton v United Kingdom (2010) 50 EHRR 1105).
+It is possible that the so called scheme for disclosure otherwise than under the FOIA might fail that test.
+Lord Mance suggests at para 37 that, if that scheme failed the test, so would the scheme for disclosure of court documents at the direction of a judge: but the adequacy of a broadly discretionary power may be very different when exercised by a judge with no axe to grind rather than, albeit subject at any rate in theory to judicial review, by an executive authority requested to disclose documents which may justify criticism of it.
+Although on the majoritys analysis of the reach of article 10 this problem does not arise, on my analysis it does arise.
+My doubts in this regard fortify my firm conclusion that, including in the interests of the Commission, it is important that, if possible, requests for disclosure of information obtained for the purposes of an inquiry should be determined under the FOIA, subject of course to the overarching requirement in para 2 of the article that any refusal should be necessary in a democratic society.
+The problem is, of course, the absolute exemption from disclosure apparently cast over such information by section 32(2) until, at the expiry of 30 years, it becomes a historical record.
+I agree with Lord Mance, for the reasons which he gives at para 28 above, that the natural construction of the subsection is to that effect.
+The alternative construction is that the subsection governs only information held for the purposes of the inquiry with the result that, once the inquiry has been concluded, the subsection no longer governs it.
+The alternative construction is wrong.
+But it is arguable.
+The Court of Appeal considered that, as a matter of grammar, the subsection was at least ambiguous and the alternative construction of it might even be preferable (Ward LJ, para 21, [2011] EWCA Civ 367, [2012] 1 WLR 3524).
+In granting permission for the alternative construction to be argued in the present appeal, this court provisionally endorsed its arguability.
+In paras 223 to 233 below Lord Carnwath stresses the muscularity of the power given to courts under section 3 of the 1998 Act to read primary legislation in a way which is compatible with rights under the ECHR.
+For the reasons which he there gives, I would read the subsection in accordance with the unnatural, alternative, construction with the result that, following the end of the Commissions inquiries, it had no effect and that, at long last, Mr Kennedys request should begin to be appraised by reference to the application to the Commissions documents of the other, elaborate, provisions set out by Parliament in the FOIA.
+So I would have allowed the appeal.
+LORD CARNWATH
+Summary
+In agreement with Lord Wilson, I would allow the appeal.
+I would uphold the view of the Information Tribunal, supported by recent Strasbourg cases, that section 32(2) as interpreted by the Charity Commission involved a disproportionate interference with Mr Kennedys rights under article 10; but that the section can and should be read down under section 3 of the Human Rights Act 1998 (HRA) to avoid that effect.
+I shall comment also on the alternative common law or open justice approach, which, though now adopted by the majority, was unsupported by any of the parties before us, in my view for good reasons.
+The course of the case
+The case has had a tortuous history.
+It began with Mr Kennedys request to the Charity Commission as long ago as 8 June 2007.
+It has arrived at the Supreme Court more than six years later, after detailed consideration by the Information Commissioner, the Information Tribunal (twice), the High Court, and the Court of Appeal (twice).
+During that time the parties have had to adapt their arguments to a frequently changing legal landscape.
+Important court decisions here and in Strasbourg have opened up new directions of thought or closed off others.
+These changes have continued up to and beyond the hearing in this court.
+After the close of the hearing, a new decision of the Strasbourg court (the Austrian case) has led to the need for further submissions to add to the voluminous bundles already before the court.
+Against that difficult background, it is particularly important for us not to lose sight of what the case is about in terms of merits.
+The public interest of the information sought by Mr Kennedy, and the legitimacy of his reasons as a journalist for seeking it, are not in dispute.
+Nor in my view has any convincing policy reason been put forward for a blanket exemption, as contended for by the Charity Commission.
+In the first Court of Appeal judgment (12 May 2011) [2012] 1 WLR 3524, para 47, Jacob LJ spoke of his reluctance to adopt the Commissions construction which allows all information deployed in the inquiry to be kept secret for 30 years after the end of the inquiry, regardless of the contents of the information, the harmlessness of disclosure or even the positive public interest in disclosure.
+Although like his colleagues he felt constrained by what he called the identity of section 32(1) and section 32(2), he commented: Clearly and obviously Parliament was treating documents deployed in legal proceedings before a court in exactly the same way as those deployed in an inquiry.
+It simply overlooked that a court has machinery for the release of documents subsequent to (or indeed during) legal proceedings whereas an inquiry or arbitration does not.
+That may well have been a blunder which needs looking at (para 48).
+At that stage the judgment had been restricted to interpretation of FOIA itself, and the arguments that had been advanced under article 10 of the Convention the Court considered could not be decided on the material before it.
+The court took the very unusual step of remitting the case to the tribunal to report on the article 10 issue, more particularly whether section 32(2) should be read down under HRA section 3 so that the exemption that it provides from disclosure of information ends upon the termination of the relevant statutory inquiry.
+The court accepted that the failure to take the point at the previous tribunal had been understandable, given that the judgments of the Strasbourg Court upon which Mr Coppel now relied (Trsasg a Szabadsagjogokert v Hungary (2009) 53 EHRR 130 and Kenedi v Hungary (2009) 27 BHRC 335) had been delivered only at or about the time of the tribunal hearing and not reported until later.
+Further, the point was one of general public interest and the present case was an ideal one for it to be tested (per Ward LJ para 45).
+By that time strong encouragement had been given in the Court of Appeal for the view that Trsasg represented a significant change of direction in the Strasbourg jurisprudence.
+In Independent News and Media Ltd v A [2010] EWCA Civ 343, [2010] 1 WLR 2262, Lord Judge CJ noted that the decision appeared to point the way to a wider scope for article 10, at least where the media are involved and genuine public interest is raised (para 41).
+In British Broadcasting Corpn v Sugar (No 2) Moses LJ described the case as a landmark decision on freedom to information (his emphasis), showing that article 10 may be invoked not only by those who seek to give information but also by those who seek to receive it (para 76).
+That view of the recent Strasbourg case law was followed after full argument by the very experienced tribunal in its report to the Court of Appeal (fairly described by Etherton LJ as an excellent, clear and comprehensive analysis).
+It followed a two day hearing in October 2011, including both evidence and legal submissions.
+Echoing Jacob LJ they concluded that a construction of section 32(2), which in effect allowed the state to prevent the disclosure of information for 30 years or more regardless of the nature of the information or the public interest in disclosure, amounted in the circumstances to an interference with Mr Kennedy's right to freedom of expression.
+That conclusion was reinforced by a detailed consideration of the classes of documents which were in issue, and the evidence they had heard on them (paras 47 54).
+They also held that such interference could not be justified under article 10(2).
+They accepted Mr Coppels arguments that the Charity Commissions construction of section 32 produced a paradigm of a disproportionate measure, which failed adequately to balance the interests of society with those of individuals and groups; that the interests of those affected were adequately protected by the suite of exemptions in Part II of FOIA; and that the public interest in disclosure of such information clearly outweighs any interest in it being withheld (paras 56 64), and that it was possible without strained construction to read the words of section 32(2) so that the exemption ends upon the termination of the statutory inquiry (paras 71 72).
+By the time that report had reached the Court of Appeal, it had been overtaken by the decision of this court in BBC v Sugar, handed down only a few days before the restored hearing.
+The Court of Appeal held that they were bound by that decision to conclude that article 10 had no application.
+It followed that the Convention issues on which the tribunal had been asked to report were no longer open to Mr Kennedy.
+It was unnecessary therefore for the Court of Appeal to consider the tribunals conclusions on the merits of the case, assuming article 10 had applied.
+It is against that background that the appeal has come before this court on the issues of principle under FOIA and article 10, one issue being whether we should revisit the reasoning in BBC v Sugar in the light of later developments.
+Notwithstanding the position forced on the Court of Appeal by the Supreme Court decision, the conclusions of the tribunal remain in my view of considerable importance to the present appeal.
+If we were to hold that the tribunal had been right in its conclusion that article 10 applied, its view that section 32(2) involved a disproportionate interference with that right under article 10(2) should carry great weight.
+In principle that was a matter of factual judgment for the expert tribunal, from which appeal to the courts lies only on grounds of illegality or irrationality.
+Subject to the legal issues now before us, we have heard no argument that the tribunals conclusions on article 10(2) were not soundly based on the material before them.
+At the lowest they establish a strong prima facie case that, for the purposes of the Human Rights Act, the Charity Commissions approach involved a breach of Mr Kennedys Convention rights.
+The Human Rights Act 1998
+The arguments about the scope of article 10 must be seen in their correct legal context.
+It is not our task to determine that issue authoritatively as a matter of Convention law.
+That is for the Strasbourg court.
+Our role is one of domestic law, as defined by the Human Rights Act.
+Under the Act Convention rights, as defined by reference to articles of the Convention (section 1(1)), are to be given effect for certain specific purposes.
+They include: i) ii) Interpretation (section 3(1)) Legislation must so far as it is possible to do so be read and given effect in a way compatible with Convention rights.
+Incompatibility (section 4) If a court is satisfied that a provision of primary legislation is incompatible with a Convention right it may make a declaration to that effect.
+Further action is then a matter for Ministers and Parliament (section 10). iii) Acts of public authorities (section 6(1)) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
+If the court finds that a public authority has so acted, it has wide powers to provide an appropriate remedy (section 8).
+The relevance of the Strasbourg cases
+In deciding the scope of Convention rights for these purposes we are not bound by Strasbourg decisions.
+Our duty is simply to take (them) into account (section 2(1)).
+The same duty applies to decisions of the former Commission and of the Committee of Ministers.
+The Act does not distinguish for this purpose between decisions at different levels of the hierarchy.
+It is left to the domestic court to determine the weight to be given to any particular decision.
+How to do so, as Lord Mance explains in para 60, has been discussed in a number of recent judgments of this court, most recently in R (Sturnham) v Parole Board [2013] UKSC 23, [2013] 2 AC 254).
+Grand Chamber decisions, of course, generally carry greater weight, but so may a consistent sequence of decisions at section level, or decisions which show a clear direction of travel.
+There is a continuing debate as to what taking account means in practical terms.
+Under the so called Ullah principle (in the words of Lord Bingham: R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323, para 20): The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.
+That formulation does not purport to offer any guidance as to how to determine the position under the Strasbourg jurisprudence, where the particular issue before the domestic courts has not been the subject of direct decision.
+Ullah itself was such a case.
+It concerned the courts approach to a so called foreign case, that is one where it was claimed that the conduct of the state in removing a person from its territory (whether by expulsion or extradition) to another territory (would) lead to a violation of the person's Convention rights in that other territory (per Lord Bingham, para 9).
+In Ullah the right in question was article 9 (right to religion), which had not in that context been the subject of a decision of the Strasbourg court.
+But the House felt able to determine that question by reference to principles derived from decisions relating to other Convention rights. (see E Bjorge, The Courts and the ECHR: A Principled Approach to the Strasbourg Jurisprudence (2013) 72(2) CLJ 289, for a useful discussion of Lord Binghams formulation in the context of the findings in the case, and of later statements by Lord Bingham, judicial and extra judicial.)
+In R (Gentle) v Prime Minister [2008] UKHL 20, [2008] 1 AC 1356, paras 56 57, Lady Hale was guided by what she could reasonably foresee would be decided by the Strasbourg court.
+Similarly, in Ambrose v Harris [2011] UKSC 43, [2011] 1 WLR 2435, para 88, Lord Dyson looked for a sufficiently clear indication in [the] Strasbourg jurisprudence of how the European court would resolve the question.
+There can, however, be no single working rule, since the nature of cases and the state of the relevant jurisprudence may vary greatly.
+In any event, the flexibility implied by the taking into account formula absolves the domestic court of the need to arrive at a definitive view of how the matter would be decided in Europe, where the current state of the jurisprudence makes that unrealistic.
+Other policy factors may also come into play.
+In the present case we are faced with a novel state of affairs.
+Until the decision in Trsasg (2009) there was an apparently settled position, confirmed by a series of Grand Chamber decision including Leander v Sweden (1987) 9 EHRR 433 and culminating in Roche v United Kingdom (2005) 42 EHRR 600, that article 10 imposed no positive obligation on the state to disclose information not otherwise available.
+That was hardly surprising.
+As Lord Mance pointed out (para 98), article 10 is on its face drafted in narrower terms than the corresponding article 19 of the Universal Declaration, and other comparable provisions, which include a specific right to seek rather than merely impart and receive information.
+Against that background Trsasg at first sight represents an unexpected departure.
+It begins with a powerful affirmation of the importance of the rights of the press, but which is said to be based on the courts consistent practice: 26.
+The Court has consistently recognised that the public has a right to receive information of general interest.
+Its case law in this field has been developed in relation to press freedom which serves to impart information and ideas on such matters In this connection, the most careful scrutiny on the part of the Court is called for when the measures taken by the national authority are capable of discouraging the participation of the press, one of society's watchdogs, in the public debate on matters of legitimate public concern, even measures which merely make access to information more cumbersome. 27 .
+In view of the interest protected by article 10, the law cannot allow arbitrary restrictions which may become a form of indirect censorship should the authorities create obstacles to the gathering of information.
+For example, the latter activity is an essential preparatory step in journalism and is an inherent, protected part of press freedom (emphasis added, citations omitted).
+Having referred to the restrictive view of article 10 taken in earlier case such as Leander v Sweden, it continued: Nevertheless, the Court has recently advanced towards a broader interpretation of the notion of freedom to receive information and thereby towards the recognition of a right of access to information (para 35).
+Depending on ones point of view, Trsasg could have been seen as a landmark decision, or as an aberration by a single section of the court.
+In any event, it is difficult to see how on its own it could have led a domestic court, applying any of the tests outlined above, to adopt a different approach from that apparently established by the Grand Chamber decisions.
+By the time of this courts consideration of Sugar, notwithstanding a further decision to like effect of the same section (Kenedi), the position in the view of the majority had not changed.
+However, as explained by Lord Mance, matters have now moved on.
+Trsasg has been treated as authoritative in three further decisions, culminating in the very recent Austrian case.
+Admittedly they remain decisions at section level, which have not yet been reviewed by the Grand Chamber.
+But Mr Coppel can rely on them as indicating a general direction of travel away from a strict application of article 10, at least in cases involving journalists or other watchdogs seeking information of genuine public interest.
+He can also point to the fact that this line of approach has now been adopted by three sections (First, Second and Fifth) involving more than 20 judges, including (in Shapovalov) the current President (Judge Spielmann).
+Headcounts can be misleading.
+But they appear to imply a substantial body of opinion within the court prepared to depart from the narrow principle apparently established by the Grand Chamber cases.
+I do not dissent from Lord Mances criticisms of some of the reasoning in these cases, but the general direction of travel, pending a contrary decision of the Grand Chamber, in my view is clear.
+In these circumstances the domestic court has two options.
+It can either stand by the earlier Grand Chamber jurisprudence pending reconsideration at that level, or it can decide to follow the new approach indicated by the section decisions.
+In choosing between them it will bear in mind that the latter course will deprive the government itself of the chance of seeking to have the issue tested before the Grand Chamber, since the government has no separate right of petition in Strasbourg.
+In some cases this will be a good reason for taking the more conservative approach.
+However, it is not the only factor in play.
+Account must also be taken of the unfairness to the claimant and the interests he represents of denying or delaying an immediate domestic remedy to which he is apparently entitled under the most recent Strasbourg case law.
+In my view, the court may also take account of how far the new approach accords with recognised principles of domestic law.
+The governments wish to challenge a new direction of travel in the Grand Chamber carries less weight if that direction is one which has already been taken by domestic law.
+In the present case, the balance in my view strongly favours the claimant.
+I respectfully agree with Lord Wilsons analysis of the Strasbourg cases and the confident conclusions he draws from them.
+But even if I were not able to go so far, we can in my view reasonably foresee (in Lady Hales words) how the case would be decided in Strasbourg at least at section level.
+It is enough for this purpose that the direction of travel of the recent cases gives clear support to the general approach of the First tier Tribunal, and certainly that there is nothing in them to indicate that Strasbourg would adopt a narrower view.
+Further, no reason has been put forward for regarding that approach as involving any fundamental departure from domestic law principles.
+Indeed, on the majoritys view of the open justice principle, it is not a matter of keeping pace with Strasbourg; rather the reverse.
+Finally, given the importance of the case to Mr Kennedy and the public interest which he represents, it would be wrong to delay yet further the resolution of this issue to enable the case to move through the Strasbourg system, with no certainty as to whether or when it might find its way to the Grand Chamber.
+I therefore approach the other issues in the case on the basis that the decision of the First tier Tribunal is in accordance with the relevant Strasbourg jurisprudence; and that there is therefore at least a strong prima facie case that, for the purposes of the Human Rights Act, the Charity Commissions decision was in breach of Mr Kennedys Convention rights.
+Construction of section 32
+Can section 32 be construed so as to give effect to Mr Kennedys article 10 rights, either (i) on ordinary principles of statutory construction or (ii) by reading down under HRA section 3? On (i) I have nothing to add to what Lord Mance has said (paras 24 34).
+I agree with him, and with the Court of Appeal, that this ground of appeal must fail.
+On ordinary principles, having regard to the structure and context of section 32, subsections (1) and (2) must be read consistently with each other.
+Once section 3 is brought into play, Mr Coppels case is more persuasive.
+He is right, in my view, to say that it is possible to read the exemption in section 32(2) itself as limited to the period of the inquiry, as indeed the tribunal held.
+Indeed, if one takes subsection (2) on its own, that is arguably the more natural reading.
+The use of the present tense appears to direct attention at the holding of documents in the custody of, or created by, the person conducting the inquiry, for that limited purpose, rather than for longer term retention once the purposes of the inquiry have ceased.
+That reading involves no undue violence to the wording of that subsection taken on its own.
+It is only when the subsection is read in the context of the section as a whole, and of its place in the legislative scheme, that conventional principles require a different view to be taken.
+But possibility is all that section 3 requires.
+One suggested reason for rejecting Mr Coppels submission is because of its effect on the relationship of section 32 with section 2.
+That section provides a general public interest exception to the rights of disclosure under section 1, save in the case of absolute exemptions, in relation to which section 1 rights are excluded altogether.
+If section 32(2) is read down in the way proposed, it would remain a provision conferring an absolute exemption, albeit severely limited in time, and therefore the public interest defence would have no application even after the exemption had ceased to apply.
+I am not convinced that this by itself is a sufficient answer under section 3.
+What is required is a possible construction.
+I accept that it must be reasonably possible, so that the scheme of the legislation remains workable.
+But that does not necessarily require a construction which would achieve the most coherent legislative scheme, or indeed the one which the legislature intended.
+As the tribunal noted, section 3 is far reaching (see the valuable summary of the principles proposed by counsel in Vodafone 2 v Revenue and Customs [2010] Ch 77, paras 37 38).
+Furthermore there is no reason to think that the absence of a public interest defence under section 2 would upset the balance of the statute.
+The tribunal was evidently satisfied that even apart from section 2 there were sufficient safeguards under the other more specific exemptions.
+The result would in my view be consistent with the fundamental features, or the grain of the legislative scheme: see Ghaidan v Godin Mendoza [2004] UKHL 30, [2004] 2 AC 557, 572, per Lord Nicholls.
+As I said in Thomas v Bridgend County Borough Council [2011] EWCA Civ 862, [2012] QB 512, in relation to the operation of section 3 in the context of the Land Compensation Act 1973: The precise form of wording required to give effect to the claimants' rights is not critical: Ghaidan v Godin Mendoza para 35, per Lord Nicholls,).
+The court is not required to redraft the statute with the precision of a parliamentary draftsman, nor to solve all the problems which it may create in other factual situations (para 68)
+The respondents have a more fundamental response to Mr Coppels argument.
+Section 3 does not come into play unless the legislation requires adjustment to make it compatible with Convention rights.
+They rely on the words of Lord Woolf CJ in Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595, [2002] QB 48, para 75: Unless the legislation would otherwise be in breach of the Convention section 3 can be ignored (so courts should always first ascertain whether, absent section 3, there would be any breach of the Convention).
+In principle with respect that seems to me correct.
+There is no need to read down a single provision, if the legislation as a whole can be read and applied in a compatible way.
+In the present statutory context, they argue, there is no need to depart from the ordinary construction of section 32.
+It provides an absolute exemption only to the duty to disclose under FOIA, but it does not constrain any right to information under article 10.
+Assuming such a right is established, it gives rise to an independent duty enforceable under HRA section 6.
+FOIA section 78 in terms provides that nothing in the Act is to be taken as limiting the powers of a public authority to disclose information held by it.
+Thus, in the absence of anything in the Charity Commissions own legislation which limits their power to comply with article 10, section 6 requires them to do so.
+They point to the Commissions general functions which include disseminating information in connection with the performance of any of [their] functions (1993 Act section 1C); their regulatory activities must be accountable and transparent (section 1D), and they have a general power to do anything calculated to facilitate or conducive or incidental to the performance of their functions (section 1E).
+These general provisions, it is said, are amply sufficient to provide a legislative basis for compliance with any disclosure obligations imposed on them under the HRA.
+Mr Coppels answer, as I understand it, is that general statutory powers of this kind cannot be relied on to supplant the detailed and restrictive legislative scheme of information powers conferred by Part II of the Act.
+This (by section 8) implicitly limits their power of disclosure in relation to inquiries to the making of reports under that section.
+He points by analogy to cases such as Hazell v Hammersmith and Fulham London Borough Council [1992] 2 AC 1, where it was held that the incidental powers conferred by section 111 of the Local Government Act 1972 could not be used to override a specific set of statutory provisions dealing with the same subject matter.
+Mr Clayton, for the first interveners, submits that the respondents approach is highly artificial, since there had never been any suggestion that an application under other powers would have been treated differently, and such an argument if accepted would severely limit the scope of HRA section 3.
+He makes the further point that, according to Trsasg (see above), interference with article 10 may be established by measures which merely make access to information more cumbersome.
+A solution which depends on enforcement through the ordinary courts is clearly more cumbersome than the simple, cost free right to recourse to the Information Commissioner.
+I have found this a difficult issue to resolve.
+Section 32(2) exempts the Charity Commission from duties of disclosure under FOIA, but does not exclude any obligations they may have had under other legislation.
+To the extent that refusal of information resulted in a breach of article 10, Mr Kennedy had his remedy by action under HRA section 6.
+This would not have been restricted to ordinary judicial review principles.
+The court would have had power to investigate the facts, to the same extent as the tribunal, and would have been able to adapt its ordinary procedures for that purpose: see Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 104, para 28.
+On one view, there is no need to adapt section 32(2) when a comparable remedy was and is available to Mr Kennedy under other legislation.
+I have come to the conclusion, however, that this is too narrow a view.
+It seems to me clear that the scheme established by FOIA was intended to be a comprehensive, albeit not necessarily exhaustive, legislative code governing duties of disclosure by the public authorities to which it applied.
+It is entitled: An Act to make provision for the disclosure of information held by public authorities The preceding White Paper (Your Right to Know: The Government's Proposals for a Freedom of Information Act (Cm 3818)(1997)) stated that its purpose was to create a general statutory right of access to official records and information (para 1.2) and that it should have very wide application applying across the public sector as a whole, at national, regional and local level (para 2.1).
+Further it was designed to create rights for the public, enforceable by a simple, specialist and generally cost free procedure, rather than simply discretionary powers enforceable by the ordinary courts only on conventional public law principles.
+In considering whether the legislation is compatible with the Convention rights for the purpose of section 3, we should direct attention to the legislative code as so established by the Act, rather than to powers or remedies which may be available from other legal sources.
+Furthermore, I agree with Mr Clayton that recourse to the courts, even given the flexibility allowed by the developing principles to which Lord Mance refers, remains more cumbersome (and more costly) than the specialised procedures provided by the Act.
+In so far as it is permissible to take policy considerations into account, I see advantage in an interpretation which allows such cases to be dealt with through the specialist bodies established by the Act, rather than the ordinary courts.
+I am impressed also by the lack of any apparent policy reason for extending the full exemption under section 32 to public inquiries of this kind.
+Lord Toulson (para 120) has quoted the statement made to Parliament by David Lock MP, Parliamentary Secretary, (Hansard, (HC Debs) Standing Committee B 25, January 2000, cols 281 282).
+To my mind this provides no support for the majoritys approach.
+The passage provides a readily understandable explanation of the exemption provided for court records, based on the separation of powers, and the acknowledged jurisdiction of the courts to determine what documents should be disclosed.
+But not so for statutory inquiries.
+The only explanation given is that they have a status similar to courts, and their records are usually held by the Department that established the inquiry.
+The first part of that sentence begs the relevant question and the second involves a non sequitur.
+It certainly gives no indication of what powers it was thought the courts would have to direct disclosure, or indeed how separation of powers comes into it.
+The Ministers statement seems to me if anything to confirm Jacob LJs view, at [2012] 1 WLR 3524, 3541, that no account had been taken of the lack of any formal machinery for the release of inquiry documents comparable to that of the courts.
+Accordingly, I would decide this issue in favour of the claimant, and uphold the decision of the tribunal.
+It follows that, on the issues which have been argued before us, the appeal should succeed.
+The common law alternative
+On the basis of my conclusion on the points raised by the parties, the alternative approach becomes redundant.
+I approach it with caution, conscious that, because it is not before us for decision and was not supported by any of the parties, we have not had the advantage of full argument.
+The foundation of this approach (and the stimulus for its introduction into the arguments before this court) lay in the judgments of the Court of Appeal in R (Guardian News and Media Ltd) v City of Westminster Magistrates Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618, in which the exemption for court documents under FOIA section 32 was held not to preclude the court from permitting a non party to have access to such documents if the court considered access appropriate under the open justice principle (para 74).
+I have no reason to doubt the authority of the Guardian News case itself as applied to the ordinary courts, with which it was concerned, although I would not wish to pre judge any counter arguments which may be raised in a future case in this court. (The Court of Appeal reversed the decision of a strong Divisional Court).
+The cases to which Toulson LJ referred were about courts.
+Although he treated the same principle as applying broadly speaking to all tribunals exercising the judicial power of the state (para 70), he gave no authority for that extension.
+Even assuming that wider proposition is correct, the Charity Commission cannot in my view be said to be exercising the judicial functions of the state.
+Indeed as Lord Toulson points out, FOIA itself draws a distinction between tribunals or bodies exercising judicial power of the State and statutory inquiries (section 32(4)(a)(c)) Although he categorises the latter as involving a quasi judicial function, he gives no further authority or explanation for the use of that somewhat imprecise and outmoded expression: see Wade and Forsyth, Administrative Law, 10th ed (2009), pp 35, 407; R v Commission for Racial Equality, Ex p Hillingdon London Borough Council [1982] AC 779, 787 F G, per Lord Diplock.
+The Charity Commission is the creation of a modern statute, by which its functions and powers are precisely defined.
+As the heading to the relevant group of sections indicates, section 8 is part of the Charity Commissions information powers, the primary purpose of which is to enable it to carry out its responsibilities for the supervision of charities.
+Its role is administrative, rather than judicial, albeit subject to ordinary public law principles of fairness and due process.
+Furthermore, such authority as there is points against any general presumption that open justice principles applicable to the courts apply also to the various forms of statutory or non statutory inquiry.
+The issues in an analogous context were discussed in detail by the Divisional Court in R (Persey) v Secretary of State for the Environment, Food and Rural Affairs [2002] EWHC 371 (Admin), [2003] QB 794.
+The court upheld the Secretary of States decision that the inquiries into the 2001 outbreaks of foot and mouth disease should be held in private.
+Applying the approach of Sir Thomas Bingham MR in Crampton v Secretary of State (unreported) 9 July 1993, CAT no 824 of 1993, and distinguishing R (Wagstaff) v Secretary of State for Health [2001] 1 WLR 292, the court held that there was no legal presumption that such an inquiry should be held in public (see also de Smiths Judicial Review, 7th ed (2013), para 1 104).
+As Simon Brown LJ said: Inquiries come in all shapes and sizes and it would be wrong to suppose that a single model a full scale public inquiry should be seen as the invariable panacea for all ills (para 42).
+The Charity Commissions powers similarly allow for inquiries in all shapes and sizes; they may be inquiries with regard to charities or a particular charity or class of charities, either generally or for particular purposes (1993 Act section 8(1)).
+The Act lays down no relevant requirements as to the form of the inquiries, or as to the involvement of the public.
+It has not been suggested that open justice principles require the inquiries themselves to be held in public, as would be the normal rule for courts.
+Indeed this comparison, with respect, discloses a basic fallacy in the alternative approach.
+The foundation of the Guardian News decision lies in the strong constitutional principle that courts sit in public.
+It is no surprise that the starting point of Toulson LJs judgment is a quotation from the great case of Scott v Scott [1913] AC 417, in which that principle was set in stone.
+It is not a large step from that principle to hold that papers supplied to the judge for the purpose of an open hearing should in principle be made available to the public, absent good reasons to the contrary.
+For statutory inquiries, such as those conducted by the Charity Commission, there is no such underlying principle that they should sit in public.
+The essential foundation that is needed for application of the Guardian News approach is wholly absent.
+This is not to say that the courts might not in due course develop a more general principle of openness, applicable also to different forms of statutory inquiry.
+But that would involve a significant extension to the existing law arguably a bolder leap into the unknown than the modest step we are being asked to take (after full argument) in relation to article 10.
+In my view there is nothing in the Guardian News case, or any other existing authority to support the view that common law principles relating to disclosure of documents in the courts can be transferred directly to inquiries.
+It must depend on the statutory or other legal framework within which the particular inquiry is established.
+In the context of the Charities Act, the particular form of publicity envisaged by the Act is the publication of a report under section 8, but the Commission is given a discretion as to its form.
+As has been seen, I agree that the functions conferred by 1993 Act, sections 1B 1E, not only give the Charity Commission powers to provide information of the kind sought by Mr Kennedy, but also give effect to a general principle of transparency.
+However, principles of transparency need to be balanced against other policy issues peculiarly within the competence of the Commission, rather than the courts.
+For example, the Commission was clearly entitled in my view (in their letter of 4 July 2007) to give weight to the need to protect its relations with third parties on whose co operation it relies.
+I find it difficult to accept the proposition that these general powers are comparable to Mr Coppels most expansive interpretation of article 10.
+I see no fair comparison between the broad set of powers conferred by those sections, and the specific and enforceable rights conferred by FOIA or article 10.
+Finally, I turn to Lord Mances discussion (para 51ff) of the principles which a judicial review court would apply to an application for disclosure of inquiry documents.
+It appears to be an important part of his reasoning that these could give a claimant in the position of Mr Kennedy remedies at least comparable to those available, on Mr Coppels argument, under FOIA.
+On this topic, anything we say must be provisional, pending an appropriate application for judicial review coming before the courts.
+The limits of the courts powers in such circumstances are best determined in the context of an actual case where the issue arises for decision after full argument.
+However, it is appropriate that I should make some comment.
+First, it is important to be clear as to the nature of the alternative procedures which are under comparison.
+On the view I take of article 10 and HRA section 3, the applicant would have a right under FOIA to a two stage process of independent, cost free, specialist review of the Charity Commissions decision, on fact and law, first by the Information Commissioner, and then by the First tier Tribunal (FOIA sections 50, 58).
+If on the other hand I am wrong about the ability of the court to read down section 32, so that remedies under FOIA are excluded, Mr Kennedys article 10 rights could be asserted in court by an application for judicial review under the HRA.
+Under the HRA, as I have said, the claimant would have a right to full merits review by the court, again on fact and law.
+The courts function in such a case is to decide for itself whether the decision was in accordance with Convention rights; it is not a purely reviewing function (see Huang v Secretary of State for Home Department [2007] UKHL 11; [2007] 2 AC 167, para 11, per Lord Bingham).
+Such proceedings for judicial review would incidentally provide an opportunity to test the scope of any related common law rights.
+By contrast, under the alternative common law approach, which eschews reliance on article 10, the applicant would be entitled only to judicial review on conventional administrative law principles, subject to the ordinary incidents as respects fees and costs.
+As Lord Mance points out, there is authority for a closer or more intense form of review (or anxious scrutiny) in some contexts, particularly where fundamental human rights (such as the right to life) or constitutional principles are at stake.
+However, even in cases to which it applies, as appears from the words of Lord Phillips MR, (R (Q) v Secretary of State for the Home Department [2003] EWCA Civ 364, [2004] QB 26, para 112) cited by Lord Mance (para 52), the role of the courts is often more about process than merits.
+Lord Mance also quotes my own discussion of the developing principles as I saw them in 2004, in IBA Health Ltd v Office of Fair Trading [2004] EWCA Civ 142 [2004] ICR 1364, para 88ff.
+Ten years on that statement holds good in my view, but the jurisprudential basis for the more flexible approach, and its practical consequences in different legal and factual contexts, remain uncertain and open to debate (see de Smith op cit paras 11 086ff and the many authorities and academic texts there cited).
+In particular, it is at best uncertain to what extent the proportionality test, which is an essential feature of article 10(2) as interpreted by the Strasbourg court, has become part of domestic public law (see de Smith paras 11 073ff).
+For the moment, and pending more detailed argument in a case where the issue arises directly for decision, I remain unpersuaded that domestic judicial review, even adopting the most flexible view of the developing jurisprudence, can achieve the same practical effect in a case such as the present as full merits review under FOIA or the HRA.
+In conclusion, for the reasons stated above, and in respectful disagreement with the majority, I would have allowed the appeal.
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+The Secretary of State for the Home Department cannot make an order which deprives a person of his British citizenship on the ground that it is conducive to the public good if she is satisfied that the order would make him stateless.
+This appeal seeks to raise the question: if at the date of the Secretary of States order it were open to the person to apply for citizenship of another state and if that application would necessarily be granted, is it her order which would make him stateless or is it his failure to make the application which would do so?
+The Secretary of State appeals against an order of the Court of Appeal (Richards, Stanley Burnton and Gross LJJ) dated 29 March 2012, by which it quashed her order dated 14 December 2007 which purported to deprive Mr Al Jedda (the respondent) of his British citizenship.
+The Secretary of State made her order pursuant to section 40(2) of the British Nationality Act 1981 (the Act).
+In its current form, which reflects substitutions made by section 4 of the Nationality, Immigration and Asylum Act 2002 and by section 56(1) of the Immigration, Asylum and Nationality Act 2006, section 40 of the Act provides as follows: 40.
+Deprivation of citizenship (1) . (2) The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good. (3) The Secretary of State may by order deprive a person of a citizenship status which results from his registration or naturalisation if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of fraud, false representation, or (a) (b) (c) concealment of a material fact. (4) The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless. (5) Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying (a) (b) (c) that the Secretary of State has decided to make an order, the reasons for the order, and the persons right of appeal under section 40A(1) or under section 2B of the Special Appeals Immigration Commission Act 1997 (c 68). (6) .
+So the issue is whether the Secretary of States order in respect of the respondent was invalidated by subsection (4) above.
+B: HISTORY
+The respondent was born in Iraq in 1957 and inherited Iraqi nationality.
+In 1992 he and his first wife came to the UK and sought asylum.
+In 1998 they and their four children were granted indefinite leave to remain in the UK and on 15 June 2000 they were granted British nationality.
+The effect of his acquisition of British nationality was that the respondent automatically lost his Iraqi nationality pursuant to article 11 of the Iraqi Nationality Law No 43 of 1963.
+In 2002, following divorce from his first wife and while he was temporarily abroad, the respondent married a second wife, by whom he had a child; and there he also entered into a polygamous marriage with a third wife, by whom he had three children.
+In 2008 he was divorced from his second wife.
+He is currently living in Turkey with his third wife and all eight of his children.
+In September 2004 the respondent travelled from the UK to Iraq.
+In October 2004 US forces in Iraq arrested him and transferred him into the custody of British forces.
+For more than three years, namely until 30 December 2007, British forces detained him in Iraq, without charge, on grounds of his suspected membership of a terrorist group.
+Following his release he remained in Iraq until 3 February 2008, when he travelled to Turkey.
+In proceedings for judicial review which he had issued in 2005 the respondent contended that his internment violated his rights under article 5(1) of the European Convention on Human Rights.
+His contention was rejected both by the Divisional Court of the Queens Bench Division and on his appeal to the Court of Appeal and also, by order dated 12 December 2007, on his further appeal to the House of Lords (R (Al Jedda) v Secretary of State for Defence (JUSTICE intervening) [2007] UKHL 58, [2008] AC 332).
+Much later, however, namely on 7 July 2011, the Grand Chamber of the European Court of Human Rights held that his internment had violated his rights under article 5(1): Al Jedda v United Kingdom (2011) 53 EHRR 789.
+In 2006 the respondent had brought a separate claim for habeas corpus in which he asserted that his internment had become unconstitutional under Iraqi law.
+Following his release from detention he re pleaded his claim as one for damages.
+In due course the claim was dismissed and the Court of Appeal upheld the dismissal (Al Jedda v Secretary of State for Defence [2010] EWCA Civ 758, [2011] QB 773).
+The order by which the Secretary of State deprived the respondent of British citizenship was therefore made shortly prior to his release from internment.
+As required by section 40(5) of the Act, her order was preceded by a letter, dated 12 December 2007, by which she notified him that she had decided to make the order on the ground that, for four reasons which she specified, she was satisfied that it would be conducive to the public good.
+Pursuant to section 40A(2) of the Act, she certified in the letter that the decision was taken wholly or partly in reliance on information which in her opinion should not be made public, with the result that, under section 2B of the Special Immigration Appeals Commission Act 1997, his right of appeal lay to that Commission (the Commission) rather than to the First Tier Tribunal (the Tribunal).
+In the domestic proceedings which, as described above, ended in the House
+of Lords on 12 December 2007, it was recorded as a fact that the respondent had dual British and Iraqi nationality (Lord Bingham of Cornhill, para 1).
+Apparently it was not then understood that, upon acquiring British nationality, the respondent had lost his Iraqi nationality.
+When, however, on 11 January 2008 he issued his notice of appeal to the Commission against the Secretary of States order dated 14 December 2007, one of his grounds of appeal was that the order had made him stateless and was therefore void.
+The Commission resolved to treat this ground as a preliminary issue and, having refused the respondents application for an adjournment, it determined it on 23 May 2008.
+The Commission found that, upon acquiring British nationality, the respondent had indeed lost his Iraqi nationality; and that fact then became no longer in issue.
+The Commission, however, proceeded to conclude (or, more strictly, to hold that the respondent had not established otherwise on the balance of probabilities) that he had regained Iraqi nationality under article 11(c) of the Law of Administration for the State of Iraq for the Transitional Period (the TAL) which had been in force between June 2004 and May 2006.
+The Commission therefore rejected the respondents contention that the Secretary of States order had made him stateless.
+By further judgments, open and closed, dated 7 April 2009, the Commission rejected the respondents remaining grounds of appeal against the order; and the dismissal of the appeal enabled the respondent to appeal to the Court of Appeal against the rejection of his contention that the order had made him stateless.
+On 12 March 2010 the Court of Appeal upheld his submission that the Commission had been wrong to refuse his application for an adjournment of the hearing in May 2008 and the court directed it to rehear the issue ([2010] EWCA Civ 212).
+On 26 November 2010 the Commission, differently constituted, again concluded that the respondent had regained Iraqi nationality prior to the date of the Secretary of States order, which had therefore not made him stateless.
+It found that he had regained it automatically either under article 11(c) of the TAL or under article 10(1) of the Iraqi Law of Nationality 2006 which had in effect replaced the TAL.
+In the light of its conclusion the Commission observed that it had no need to address the Secretary of States alternative contention, raised before it for the first time, that, if on 14 December 2007 the respondent 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.
+By its order under current appeal, the Court of Appeal set aside, as erroneous in law, the Commissions conclusion that prior to 14 December 2007 the respondent had automatically regained Iraqi nationality, whether under article 11(c) or under article 10(1).
+This court has not permitted the Secretary of State to challenge the Court of Appeals disposal of that issue.
+But the effect of its disposal was to require that court to address the Secretary of States alternative contention, which she had preserved by a respondents notice.
+In a judgment with which Stanley Burnton and Gross LJJ agreed, Richards LJ rejected the alternative contention in the following terms: 120.
+I am prepared to assume that if an application were made for the restoration of the appellants Iraqi nationality it would be bound to succeed, though the point is by no means free from doubt.
+I also put to one side the objections raised by Mr Hermer as to the practicality of the appellant making an application at all: he submitted that an application would have to be made by the appellant in person, and for that purpose the appellant would have to enter Iraq legally and would therefore require a visa, which would lie in the discretion of the State and could be refused on national security grounds. 121.
+I would reject the Secretary of States argument for the straightforward reason that section 40(4) requires the Secretary of State (and, on appeal, the court) to consider the effect of the order made under section 40(2): would the order make the person stateless? If Iraqi nationality was not restored to the appellant automatically under the Iraqi legislation considered above, he was not an Iraqi national at the time of the order: his only nationality at that time was British nationality.
+The effect of the order would therefore be to make him stateless.
+That would be the effect of the order irrespective of whether he could previously have acquired another nationality had he chosen to do so, or whether he could do so in the future.
+It is against this determination that the appeal is brought.
+C: STATELESSNESS
+The evil of statelessness became better understood following the re drawing of national boundaries at the end of the two world wars of the twentieth century and following, for example, the Reich Citizenship Law dated 15 September 1935 which provided that all Jewish people should be stripped of their citizenship of the German Reich.
+The Universal Declaration of Human Rights, adopted by the United Nations on 10 December 1948, provides in article 15: (1) Everyone has the right to a nationality. (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
+The European Convention on Human Rights 1950 does not identify a right to a nationality but the European Court of Human Rights recognises that the arbitrary denial of citizenship may violate the right to respect for private life under Article 8 of the Convention (Karassev v Finland, Application No 31414/96, 12 January 1999).
+In his dissenting judgment in Perez v Brownell, 356 US 44, 64 (1958), Warren CJ described a right to nationality as mans basic right for it is nothing less than the right to have rights.
+Although the international growth of human rights during the past fifty years has to some extent succeeded in establishing that a persons right to have rights stems, instead, from his existence as a human being, worldwide legal disabilities with terrible practical consequences still flow from lack of nationality: see the illuminating article by Weissbrodt and Collins entitled The Human Rights of Stateless Persons, Human Rights Quarterly, 28 (2006) 245.
+On 1 May 2013 the Home Office issued guidance on Applications for leave to remain as a stateless person referable to changes in Immigration Rules which had recently come into effect.
+It states, at para 2(1): Statelessness occurs for a variety of reasons, including discrimination against minority groups in nationality legislation, failure to include all residents in the body of citizens when a state becomes independent (state succession) and conflicts of laws between states.
+The dissolution of the Soviet Union and the Yugoslav Federation in the early 1990s, for example, caused internal and external migration that is reported to have left hundreds of thousands stateless throughout Eastern Europe and Central Asia.
+In some countries, citizenship is lost automatically after prolonged residence in another country.
+The absence of proof of birth, origins or legal identity can also increase the risk of statelessness.
+Statelessness has been estimated to affect up to 12 million people worldwide.
+Possession of nationality is essential for full participation in society and a prerequisite for the enjoyment of the full range of human rights.
+Those who are stateless may, for example, be denied the right to own land or exercise the right to vote.
+They are often unable to obtain identity documents; they may be detained because they are stateless; and they can be denied access to education and health services or blocked from obtaining employment.
+Until 1964 the ability of the Secretary of State in limited circumstances to deprive a person of British citizenship acquired by naturalisation or registration was not qualified by any obligation not thereby to make that person stateless.
+A power to deprive had been introduced by section 7(1) of the British Nationality and Status of Aliens Act 1914, which had enabled the Secretary of State to revoke a certificate of naturalisation on the ground that it had been obtained by misrepresentation or fraud.
+Section 1 of the British Nationality and Status of Aliens Act 1918 had converted the power into a duty and had extended it to grounds of public interest: it was to apply to acts of disloyalty to the Crown and, provided that the Secretary of State was satisfied that the continuance of the certificate was not conducive to the public good, to any of five further facts.
+In turn these provisions were replaced by section 20 of the British Nationality Act 1948, which converted the Secretary of States duty back into a power and which specified grounds for its exercise which loosely reflected those which had been identified in 1914 and 1918.
+Shortly after 1948, however, came two important United Nations conventions in relation to statelessness.
+The first was the Convention relating to the Status of Stateless Persons adopted on 28 September 1954 (the 1954 Convention).
+The UK signed it on that day and ratified it on 16 April 1959; and it came into force on 6 June 1960.
+It recited the profound concern of the United Nations for stateless persons and the desirability of regulating and improving their status.
+By article 1(1), it defined a stateless person in terms which have become internationally authoritative, namely, as a person who is not considered as a national by any State under the operation of its law.
+By the articles which followed, it identified a minimum level of treatment in specified respects which contracting states were required to afford to stateless persons within their territories.
+But it did not address the deprivation of citizenship when such was to cause statelessness.
+The second was the Convention on the Reduction of Statelessness adopted on 30 August 1961 (the 1961 Convention).
+The UK signed it on that day and ratified it on 29 March 1966; and it came into force on 13 December 1975.
+Concerned, as its title suggests, with the reduction of statelessness rather than with the rights of stateless persons, the 1961 Convention obliged states to grant nationality to certain persons who would otherwise be stateless.
+But it also addressed the deprivation of citizenship when such was to cause statelessness.
+Article 8(1) prohibited a state from depriving a person of his nationality if such was to cause him to be stateless.
+Para 2 of the article specified two exceptions to the prohibition, of which the second was the situation in which the nationality had been obtained by misrepresentation or fraud.
+Para (3)(a) of the article provided the opportunity for a state to escape more widely from the prohibition if (i) at the time of its ratification of the Convention, its law were to provide for deprivation on, in effect, the ground of conduct seriously prejudicial to the vital interests of the state and (ii) at the time of ratification the state declared its retention of the right to deprive a person of citizenship on that ground.
+By 1964 the UK had resolved to ratify the 1961 Convention.
+Parliament passed the British Nationality (No 2) Act 1964 in order (as was noted in Halsburys Statutes, Second Edition, Vol 44, p 80) to enable the government to ratify it.
+The Act implemented the obligation cast by the 1961 Convention to grant nationality to certain persons who would otherwise be stateless.
+In relation to the deprivation of citizenship the government proposed that, when ratifying the Convention, it should make the declaration permitted by article 8(3)(a).
+It realised however that, notwithstanding the proposed declaration, three of the grounds for deprivation set by the 1948 Act would fall outside the exemptions permitted by the 1961 Convention and could therefore not form the basis of an order if its effect would be to make the person stateless.
+By section 4(2) of the 1964 Act two such grounds for deprivation were abolished altogether.
+Parliament resolved to maintain the third ground (namely that, within five years of naturalisation, the person had been sentenced to imprisonment for not less than a year: section 20(3)(c) of the 1948 Act); so, by section 4(1) of the 1964 Act, it provided that the Secretary of State could not make an order for deprivation on that ground if it appears to him that that person would thereupon become stateless.
+Thus was the link between deprivation and statelessness first forged in domestic law.
+Upon ratification of the 1961 Convention on 29 March 1966, the UK Government duly made the declaration permitted by article 8(3)(a) of it.
+The provisions for deprivation of citizenship in section 20 of the 1948 Act and section 4 of the 1964 Act were in effect consolidated in the original version of section 40 of the Act.
+On 6 November 1997 the Council of Europe promulgated the European Convention on Nationality.
+Article 7(1) provided that a contracting state could not deprive a person of its nationality save on seven specified grounds, of which the second was that the person had obtained nationality by misrepresentation or fraud and the fourth was that his conduct had been seriously prejudicial to the vital interests of the state.
+But, save in relation to the second ground, para 3 of article 7 prohibited deprivation if such was to cause statelessness.
+Thus no escape from the prohibition was permitted in relation, for example, to the fourth ground, which reflected the public interest ground on which, in accordance with the 1961 Convention, the UK had retained its right to deprive even when such was to cause statelessness.
+The UK has not ratified nor even signed the European Convention on Nationality.
+But, as Lord Falconer of Thoroton informed a Committee of the House of Lords on 8 July 2002 (Hansard, HL Debs, vol 637, col 537), the government then hoped to ratify it.
+He was promoting the bill which became the Nationality, Immigration and Asylum Act 2002.
+The aspiration to ratify the European Convention explains the Acts dramatic expansion of the prohibition against orders for deprivation when such were to cause statelessness.
+By section 4(1), fresh sections 40 and 40A were substituted for the original version of section 40 of the Act.
+The grounds for making an order for deprivation were reduced to two.
+The first remained misrepresentation or fraud in obtaining citizenship and, as before, the prohibition against orders which caused statelessness did not extend to orders on this ground: section 40(3) and (4), set out at para 3 above.
+The second, namely the public interest ground, echoed the terms of the European Convention in referring to acts seriously prejudicial to the vital interests of the UK (section 40(2)(a)).
+By section 56 of the Immigration, Asylum and Nationality Act 2006, however, this second ground was recast into its current form, namely that deprivation is conducive to the public good: section 40(2), set out at para 3 above.
+For present purposes, however, the crucial change wrought by the 2002 Act was the fresh subsection (4), set out at para 3 above, which prohibited an order on the second ground if the Secretary of State was satisfied that it would make a person stateless.
+It is clear therefore, that, in enacting the subsection, Parliament went further than was necessary in order to honour the UKs existing international obligations.
+D: PREMISE
+The Secretary of State invites the court to determine the appeal on a premise.
+It is that on 14 December 2007 the respondent could have applied to the Iraqi authorities for restoration of his Iraqi nationality; that under Iraqi law he then had a right to have it restored to him; and that its restoration would have been effected immediately.
+Pressed by the court to explain whether her argument extended to a persons right to obtain a nationality never previously held such as, perhaps, a Jewish persons right to obtain Israeli nationality or a wifes right to obtain the nationality of her husband Mr Swift QC, on behalf of the Secretary of State, explained that the argument did not extend beyond the restoration of a former nationality.
+Pressed further to explain whether the argument extended to a person who, prior to her order, had had a right to secure the restoration of his former nationality but who, by the date of the order, had lost that right, Mr Swift explained that the focus was upon what the person could achieve in response to the order and thus that the argument did not extend that far.
+It was Mr Swifts submission at the hearing (which the Secretary of State has subsequently withdrawn: see para 27 below) that if, on the suggested premise, it were to allow the appeal, this court should remit the respondents appeal against the order for deprivation back to the Commission for it to consider whether the premise is valid as a matter of Iraqi law.
+Mr Swift stressed that the Commissions two previous lengthy hearings were concerned with whether on 14 December 2007 the respondent had Iraqi nationality, not with whether he then had a right to secure its restoration.
+An appellate court has no need to address argument founded on a premise which it considers unrealistic and, in the absence of any other ground for the appeal, can dismiss it without doing more than to explain why it considers the premise to be unrealistic.
+In my view, at least on the findings made below, the present appeal comes close to deserving that unusual treatment.
+In rejecting the Secretary of States contention that the respondent had regained Iraqi nationality automatically under article 10(1) of the Iraqi Law of Nationality 2006, which was in force on 14 December 2007, Richards LJ said: 117.
+In my judgment, the relevant factors come down strongly in favour of the view that the Iraqi courts would find the appellants situation to be covered by Article 10(3), not by Article 10(1), and that the restoration of his Iraqi nationality depends on his meeting the conditions of Article 10(3), including the making of an application for its restoration.
+Article 10(3) provides: An Iraqi who renounces his Iraqi nationality may regain it, if he legally returns to Iraq and stays there for at least one year.
+The Minister may, on expiry thereof, consider him to have acquired Iraqi nationality from the date of his return if he submits an application to regain Iraqi nationality before the end of the aforementioned period.
+It is clear, therefore, that paragraph (3) of the article would have required the respondent (a) to return to Iraq legally, (b) to stay there for at least one year, as well as (c) to apply in the course of the year for restoration of his Iraqi nationality.
+In the event that the respondent fulfilled these requirements, the Minister may restore Iraqi nationality to him, with retrospective effect to the date of his return; and, although the Court of Appeal made no finding in this regard, Mr Swift has not taken issue with the contention of Mr Hermer QC, on behalf of the respondent, that in the end all the experts who gave evidence at the second hearing before the Commission were agreed that, as one would expect, the word may connotes that the Minister nevertheless retains a discretion to refuse the application.
+It seems to me, therefore, that there was an element of indulgence on the part of the Court of Appeal towards the Secretary of State in its accession to her invitation to proceed on the suggested premise; and that, were it to proceed likewise, this court would be extending an analogous indulgence.
+On balance, however, and in the light of the time, effort and expense which has now been devoted to the substantive argument, I consider that this court should adopt the suggested premise and proceed to determine the clean point, namely whether an order for deprivation made against a person who, at its date, can immediately, by means only of formal application, regain his other, former, nationality is invalid under section 40(4) of the Act.
+I add, as a postscript to this section of the judgment, that following the hearing in this court the Secretary of State has drawn to its attention what she contends to be important further information recently provided to her by the Iraqi authorities.
+It is that on 20 January 2008, namely three weeks after his release, the respondent applied in Baghdad for an Iraqi passport; that his application form, a photocopy of which the Secretary of State has produced to the court, shows that it was accompanied by a certificate of his Iraqi nationality purportedly issued on the same date in Kirkuk; that on 28 January 2008 the Iraqi authorities issued a passport, number G1739575, to the respondent; and that the passport is genuine and betokens a valid grant of nationality to the respondent.
+The information has emboldened the Secretary of State to withdraw Mr Swifts submission that if, on the suggested premise, it were to allow the appeal, the court should remit the respondents appeal to the Commission.
+For she suggests that the new information incontrovertibly demonstrates the validity of the premise.
+When asked by the court to comment on these allegations, the respondent, by his solicitors, has said: (a) (b) (c) from an early stage of the protracted proceedings referable to his appeal against the Secretary of States order, he had averred that, in order to travel from Iraq to Turkey on 3 February 2008, he had used a fake Iraqi passport: see, for example, his witness statement dated 10 October 2008 which was placed before the Commission; in 2008 he had also filed a report by a Turkish lawyer who stated that she had reviewed a scanned copy of what purported to be an Iraqi passport referable to him issued in Baghdad on 28 January 2008 and stamped with a Turkish entry visa dated 3 February 2008; in the course of cross examination of him at a hearing before the Commission in January 2009 Mr Swift had never sought to challenge (d) his assertion that the Iraqi passport by which he had travelled to Turkey was fake; in January 2008, in Kirkuk, he had in fact acquired two fake passports, one in his name and one in another name, on the black market by payment of about US$750 which he borrowed from his family; (e) he had provided his payee with details about himself and photographs of himself but not with a certificate of Iraqi nationality because he did not have one; the fake passport in his own name, which the payee provided to him, was indeed numbered G1739575 and it stated that it had been issued on 28 January 2008; this was the passport which he had elected to use for his travel to Turkey on 3 February 2008; (f) (g) he is unaware of the documents which his payee may have completed or caused to be completed in the course of procuring the passports; (i) (h) he, the respondent, never completed the application form a copy of which the Secretary of State has produced to the court and he has never previously seen it; the passport G1739575 is therefore fake, by which he appears to mean that it was forged, or, more probably, that it was fraudulently obtained; and since 2000 he has never held Iraqi nationality and in the above circumstances the passport is no evidence to the contrary. (j)
+It is not the function of this court to resolve an issue whether an Iraqi
+passport was regularly obtained and therefore betokens a valid grant of nationality under Iraqi law.
+In my view it should set the issue to one side and, not that it matters, should therefore resist concluding that the Secretary of States new allegations add significantly to the validity of the suggested premise upon which the argument is founded.
+Were this appeal to be dismissed, the Secretary of State might perhaps make a further deprivation order on the basis that, in the light of the passport, no such order would now make the respondent stateless.
+He would evidently dispute that conclusion and it appears that he might also contend that the Secretary of State is estopped from alleging the validity of the passport at so late a stage.
+This court should make no comment on any of these possibilities.
+E: ARGUMENT
+The Secretary of State places great weight on the word satisfied within the terms of the prohibition in section 40(4) of the Act against making an order for deprivation if [she] is satisfied that the order would make a person stateless.
+In providing for her satisfaction in this regard, the subsection replicates the requirement in subsections (2) and (3) that she be satisfied of the existence of one or other of the two grounds for making the order.
+The word satisfied in the subsections should, if possible, be given some value.
+I confess, however, that I do not find it easy to identify what that value should be.
+Parliament has provided a right of appeal against her conclusion that one or other of the grounds exist and/or against her refusal to conclude that the order would make the person stateless; and it has been held and is common ground that such is an appeal in which it is for the appellate body to determine for itself whether the ground exists and/or whether the order would make the person stateless (albeit that in those respects it may choose to give some weight to the views of the Secretary of State) and not simply to determine whether she had reason to be satisfied of those matters (B2 v Secretary of State for the Home Department [2013] EWCA Civ 616, Jackson LJ, para 96).
+Mr Hermer suggests that the word satisfied means only that the Secretary of State must bring her judgement to bear on the matters raised by the subsections.
+His suggestion may afford some slight significance to the word in subsections (2) and (3).
+But does it work in relation to subsection (4)? If an order would make a person stateless but the Secretary of State has failed even to bring her judgement to bear on the possibility of that consequence, the order can hardly escape invalidity on the basis that the Secretary of State was never satisfied that the order would have that effect.
+Irrespective, however, of whether the word satisfied in subsection (4) can sensibly be afforded any significance at all, I am clear that it cannot bear the weight which Mr Swift seeks to ascribe to it.
+He contends that it confers latitude upon the Secretary of State and, in the event of an appeal, upon the Tribunal or the Commission to look beyond the ostensible effect of the order to the active cause of any statelessness and, in particular, to the facility of the person to secure restoration of his previous nationality.
+But a requirement that I should be satisfied of a fact does not enlarge or otherwise alter the nature of the fact of which I should be satisfied.
+Whether the requirement is that the fact should exist or that I should be satisfied of it, the nature of the fact remains the same; it is only the treatment of the fact in my mind which, subject to the context, is governed by the word satisfied.
+Although the word satisfied therefore adds nothing to it, the Secretary of States argument still remains that section 40(4) requires the active or real cause of any statelessness to be identified.
+The word in the subsection is make and the argument is that, although no doubt a number of factors contributed to making the respondent stateless on 14 December 2007 (including, presumably, even his initial loss of Iraqi nationality by acquisition of British nationality in 2000), the subsection requires identification of the factor which actively or really made him stateless, namely (if such it was) his failure to secure immediate restoration of his Iraqi nationality.
+The argument is said to reflect a properly purposive construction of the subsection: where a ground for making a deprivation order exists, why disable the Secretary of State from making it in circumstances in which it remains open to the person so easily and so immediately to avoid becoming stateless? Does the law (asks Mr Swift) allow him to complain of a state of affairs of his own making?
+I reject this argument.
+Section 40(4) does not permit, still less require, analysis of the relative potency of causative factors.
+In principle, at any rate, the inquiry is a straightforward exercise both for the Secretary of State and on appeal: it is whether the person holds another nationality at the date of the order.
+Even that inquiry may prove complex, as the history of these proceedings demonstrates.
+But a facility for the Secretary of State to make an alternative assertion that, albeit not holding another nationality at the date of the order, the person could, with whatever degree of ease and speed, re acquire another nationality would mire the application of the subsection in deeper complexity.
+In order to make his argument less unpalatable to its audience, Mr Swift, as already noted, limited it to the re acquisition of a former nationality, as opposed to the acquisition of a fresh nationality.
+But, with respect, the limitation is illogical; if valid, his argument would need to extend to the acquisition of a fresh nationality.
+Yet a person might have good reason for not wishing to acquire a nationality available to him (or possibly even to re acquire a nationality previously held by him).
+In section 12 of the Act Parliament provided for the renunciation of British citizenship by declaration and for the declaration to be registered.
+Article 7 of the 1961 Convention had required a renunciation to be ineffective unless the person possesses or acquires another nationality and, by section 12(3), Parliament implemented that requirement in the following terms: A declaration made by a person in pursuance of this section shall not be registered unless the Secretary of State is satisfied that the person who made it will after the registration have or acquire some citizenship or nationality other than British citizenship; and if that person does not have any such citizenship or nationality on the date of registration and does not acquire some such citizenship or nationality within six months from that date, he shall be, and be deemed to have remained, a British citizen notwithstanding the registration.
+For present purposes the significance of the subsection is that, as an addition to the person who will have another nationality on the date of registration, Parliament, reflecting the terms of the 1961 Convention, there refers to the person who will acquire another nationality.
+Parliament would have been capable of making an analogous addition to section 40(4).
+After the words would make a person stateless, it could have added the words in circumstances in which he has no right immediately to acquire the nationality of another state.
+But it did not do so; and the Secretary of State therefore invites the court to place a gloss, as substantial as it is unwarranted, upon the words of the subsection.
+An individuals nationality is to be assessed as at the time 3.4 of determination of eligibility under the 1954 Convention.
+It is neither a historic nor a predictive exercise.
+The question to be answered is whether, at the point of making an Article 1(1) 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 national for the purposes of Article 1(1) of the 1954 Convention.
+Similarly, 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 eloquently exposes the fallacy behind her appeal.
+On 20 February 2012 the United Nations High Commissioner for Refugees issued Guidelines on Statelessness No 1, HCR/GS/12/01, in which he addressed some of the effects of the authoritative definition of a stateless person in article 1(1) of the 1954 Convention.
+Para 43 of his guidelines, entitled Temporal Issues, has been incorporated, word for word, into the Home Office guidance on Applications for leave to remain as a stateless person dated 1 May 2013, referred to at para 13 above.
+The guidance provides:
diff --git a/UK-Abs/train-data/judgement/uksc-2012-0160.txt b/UK-Abs/train-data/judgement/uksc-2012-0160.txt
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index 0000000000000000000000000000000000000000..2105251015e2ba75f255ce734381e72ed968fb97
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+Two appeals are before the Court by prisoners who were convicted of murder and sentenced to life imprisonment.
+In the case of the appellant Peter Chester, the tariff period fixed expired many years ago, but he has not yet satisfied the Parole Board that it is no longer necessary for the protection of the public that he should be confined.
+In the case of the appellant George McGeoch, the sentencing judge fixed a punishment part of 13 years which expired on 7 October 2011, but he has committed various intervening offences including violently escaping from lawful custody in 2008 for which he received a seven and a half year consecutive sentence.
+The result is that the earliest date on which McGeoch could be considered for parole is July 2015.
+Both the appellants claim that their rights have been and are being infringed by reason of their disenfranchisement from voting.
+Chesters claim for judicial review was issued in December 2008 and relates to voting in United Kingdom and European Parliamentary elections.
+It relies on Article 3 of Protocol No 1 (A3P1) as incorporated into domestic law by the Human Rights Act 1998 and directly on European Union law.
+Burton J and the Court of Appeal (Lord Neuberger MR, Laws and Carnwath LJJ), [2010] EWCA Civ 1439, [2011] 1 WLR 14346, dismissed Chesters claim.
+They held that it was not the courts role to sanction the government for continuing delay in implementing the European Court of Human Rights decision in Hirst v United Kingdom (No 2) (2005) 42 EHRR 849 or to repeat the declaration of incompatibility issued by the Scottish Registration Appeal Court in Smith v Scott 2007 SC 345 or issue advice as to the form which compatible legislation might take.
+They held that European Union law raises no separate issue.
+McGeochs claim for judicial review was issued in February 2011 and related to voting in local municipal and Scottish Parliamentary elections.
+It relies solely on European Union law.
+The Extra Division dismissed the petition on the ground that European Union law only conferred a right to vote in municipal elections in a Member State on European Union citizens residing in a Member State of which they were not nationals.
+It also considered that Scottish Parliamentary elections were not for this purpose municipal elections.
+Before the Extra Division McGeoch was refused permission to amend to include a complaint relating to voting in European Parliamentary elections, but a corresponding amendment was permitted by the Supreme Court by order of 15 October 2012.
+The following summarises my conclusions: (A) Human Rights Act In respect of Chesters claim under the Human Rights Act, which only relates to elections to the European and United Kingdom Parliaments (para 2), I would decline the Attorney Generals invitation to this Court not to apply the principles in Hirst v United Kingdom (No 2) (2005) 42 EHRR 849 (Hirst (No 2)) and Scoppola v Italy (No 3) (2012) 56 EHRR (paras 34 35) (Scoppola), but also decline to make any further declaration of incompatibility with the Convention rights (paras 39 42). (B) European law a.
+In respect of McGeochs and Chesters claims under European law, which can at most relate to elections to the European Parliament and municipal authorities (paras 9, 45 and 46), I conclude that European law does not incorporate any right to vote paralleling that recognised by the European Court of Human Rights in its case law or any other individual right to vote which is engaged or upon which, if engaged, they are able to rely (paras 46 47, 58, 59, 63 64 and 68). b.
+Had European law conferred any right to vote on which McGeoch and Chester can rely: i. the only relief that might have been considered would have been a generally phrased declaration that the legislative provisions governing eligibility to vote in European Parliamentary and municipal elections in the United Kingdom were inconsistent with European Community or Union law but that would not have appeared appropriate in the particular cases of Chester and McGeoch (para 72); ii. the general ban on voting in European Parliamentary and municipal elections could not have been disapplied as a whole (para 73); iii. it would not have been possible to read the RPA section 3 or EPEA section 8 compatibly with European law (para 74); iv. the Supreme Court could not itself devise a scheme or arrangements that would or might pass muster with European law; that would be for Parliament (para 74); vs neither of the appellants could have had any arguable claim for damages in respect of any breach of European law which may be involved in RPA section 3 and/or EPEA section 8 (paras 82 83). (C) European Court of Justice The resolution of these appeals does not necessitate a reference to the European Court of Justice.
+In so far as it raises issues of European law for determination, they are either not open to reasonable doubt or involve the application by this Court to the facts of established principles of European law (para 84). (D) Both appeals fall therefore, in my opinion, to be dismissed (para 85).
+Legislation
+Entitlement to vote in parliamentary and local government elections in the United Kingdom is governed by the Representation of the People Act 1983 (RPA).
+Section 1, as substituted by section 1 of the Representation of the People Act 2000, provides that: (1) A person is entitled to vote as an elector at a parliamentary election in any constituency if on the date of the poll he (a) is registered in the register of parliamentary electors for that constituency; (b) is not subject to any legal incapacity to vote (age apart); (c) is either a Commonwealth citizen or a citizen of the Republic of Ireland; and (d) is of voting age (that is, 18 years or over).
+Section 2 provides in similar terms in relation to local government elections, but with the addition in (c) of the words or a relevant citizen of the Union, to meet the requirements of what is now article 22(1) TFEU.
+Section 3 of the Act, as amended by section 24 of and paragraph 1 of Schedule 4 to the Representation of the People Act 1985, disenfranchises serving prisoners, providing: Disfranchisement of offenders in prison etc (1) A convicted person during the time that he is detained in a penal institution in pursuance of his sentence or unlawfully at large when he would otherwise be so detained is legally incapable of voting at any parliamentary or local government election. (2) For this purpose (a) convicted person means any person found guilty of an offence (whether under the law of the United Kingdom or not), . , but not including a person dealt with by committal or other summary process for contempt of court; (c) a person detained for default in complying with his sentence shall not be treated as detained in pursuance of the sentence The effect of the last words of section 3(2)(a) and of section 3(2)(c) is to exclude persons imprisoned for contempt of court or default in paying a fine.
+Entitlement to vote in European Parliamentary elections is provided domestically by the European Parliamentary Elections Act 2002 (EPEA).
+For present purposes section 8(2) and (3) are relevant, and they confer such entitlement on a person: (2) . if on the day of the poll he would be entitled to vote as an elector at a parliamentary election in a parliamentary constituency wholly or partly comprised in the electoral region, and (a) the address in respect of which he is registered in the relevant register of parliamentary electors is within the electoral region, or (b) his registration in the relevant register of parliamentary electors results from an overseas elector's declaration which specifies an address within the electoral region.
+The disenfranchisement enacted by RPA section 3 is thus extended to apply to European Parliamentary elections.
+Under the Scotland Act 1998, section 11(1), the persons entitled to vote as electors at an election for membership of the Scottish Parliament in any constituency are those who on the day of the poll would be entitled to vote as electors at a local government election in an electoral area falling wholly or partly within the constituency.
+In effect, RPA section 3 is extended to Scottish Parliamentary elections.
+A3P1 reads: The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.
+The European Parliament is for this purpose a legislature within the meaning of A3P1: see Matthews v United Kingdom (1999) 28 EHRR 361.
+So too is clearly the Scottish Parliament, under the devolution arrangements instituted by the Scotland Act, giving it wide ranging legislative authority.
+Lord Hope described as such in AXA General Insurance Ltd v HM Advocate [2011] UKSC 46, [2012] 1 AC 868, para 46: The Scottish Parliament takes its place under our constitutional arrangements as a self standing democratically elected legislature.
+Its democratic mandate to make laws for the people of Scotland is beyond question.
+Acts that the Scottish Parliament enacts which are within its legislative competence enjoy, in that respect, the highest legal authority.
+The United Kingdom Parliament has vested in the Scottish Parliament the authority to make laws that are within its devolved competence.
+The conclusion that the Scottish Parliament is a legislature within A3P1 was a conclusion implicitly accepted by the European Court of Human Rights in McLean and Cole v United Kingdom (Application Nos 12626/13 and 2522/12) (unreported) given 11 June 2013, and was shared by Lord Reed in the Extra Division in the present case (para 29 of his judgment).
+Conversely, a local government body or municipal authority is not part of a legislature in the United Kingdom within A3P1: McLean and Cole v United Kingdom.
+Under European Union law, as it stands since 1 December 2009 when the Treaty of Lisbon came into force, a wide range of provisions is potentially relevant.
+Articles 6, 10 and 14 TEU provide: COMMON PROVISIONS . 6.1.
+The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.
+The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.
+The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII [Articles 5154] of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions. 6.3.
+Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Unions law.
+PROVISIONS ON DEMOCRATIC PRINCIPLES . 10. 1.
+The functioning of the Union shall be founded on representative democracy. 10.2.
+Citizens are directly represented at Union level in the European Parliament.
+Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens. 10.3.
+Every citizen shall have the right to participate in the democratic life of the Union.
+Decisions shall be taken as openly and as closely as possible to the citizen. 10.4.
+Political parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union.
+PROVISIONS ON THE INSTITUTIONS . 14.3.
+The members of the European Parliament shall be elected for a term of five years by direct universal suffrage in a free and secret ballot.
+The pre Lisbon Treaty predecessor of article 14.3 was article 190.1 and 190.4, reading: 190.1 The representatives in the European Parliament of the peoples of the States brought together in the Community shall be elected by direct universal suffrage. 4 The European Parliament shall draw up a proposal for elections by direct universal suffrage in accordance with a uniform procedure in all Member States or in accordance with principles common to all Member States.
+To give effect to article 190.4 the Council of Ministers agreed the Act concerning the election of the representatives of the European Parliament by direct universal suffrage, annexed to Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976 (0J 1976 L 278, p 1), as amended by Council Decision 2002/772/EC, Euratom of 25 June 2002 and 23 September 2002 (OJ 2002 L 283, p 1) (the 1976 Act), which continues to apply in the post Lisbon Treaty era.
+The 1976 Act provides inter alia by what is now article 7: Subject to the provisions of this Act, the electoral procedure shall be governed in each Member State by its national provisions.
+These national provisions, which may if appropriate take account of the specific situation in the Member States, shall not affect the essentially proportional nature of the voting system.
+Voting in European Parliamentary and municipal elections is dealt with more specifically by Articles 20 and 22 TFEU in a Part headed Non discrimination and Citizenship of the Union: 20.1.
+Citizenship of the Union is hereby established.
+Every person holding the nationality of a Member State shall be a citizen of the Union.
+Citizenship of the Union shall be additional to and not replace national citizenship. 2.
+Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties.
+They shall have, inter alia: (a) the right to move and reside freely within the territory of the Member States; (b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State; (c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State; (d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language. 22.1.
+Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State.
+This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State. 2.
+Without prejudice to Article 223(1) and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a Candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State.
+This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.
+Article 52 of the Charter of Fundamental Rights (CFR) deals with the Charters scope and interpretation: 1.
+Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms.
+Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. 2.
+Rights recognised by this Charter for which provision is made in the Treaties shall be exercised under the conditions and within the limits defined by those Treaties. 3.
+In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention.
+This provision shall not prevent Union law providing more extensive protection. 4.
+In so far as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions. 5.
+The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers.
+They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality. 6.
+Full account shall be taken of national laws and practices as specified in this Charter. 7.
+The explanations drawn up as a way of providing guidance in the interpretation of this Charter shall be given due regard by the courts of the Union and of the Member States.
+The CFR includes the following provisions: Article 39 Right to vote and to stand as a candidate at elections to the European Parliament 1.
+Every citizen of the Union has the right to vote and to stand as a candidate at elections to the European Parliament in the Member State in which he or she resides, under the same conditions as nationals of that State. 2.
+Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot.
+Article 40 Right to vote and to stand as a candidate at municipal elections Every citizen of the Union has the right to vote and to stand as a candidate at municipal elections in the Member State in which he or she resides under the same conditions as nationals of that State.
+The Explanations relating to the CFR, referred to in article 6.1 TEU, state that article 39 CFR: applies under the conditions laid down in the Treaties, in accordance with Article 52(2) of the Charter.
+Article 39(1) corresponds to the right guaranteed in Article 20(2) [TFEU] (cf. also the legal base in Article 22 [TFEU] for the adoption of detailed arrangements for the exercise of that right) and Article 39(2) corresponds to Article 14(3) [TEU].
+Article 39(2) takes over the basic principles of the electoral system in a democratic state.
+The Explanations state further that article 40 CFR: corresponds to the right guaranteed by Article 20(2) [TFEU] (cf. also the legal base in Article 22 [TFEU] for the adoption of detailed arrangements for the exercise of that right).
+In accordance with Article 52(2) of the Charter, it applies under the conditions defined in these Articles in the Treaties.
+European Convention on Human Rights
+The general significance of A3P1 was summarised by Lord Collins in a judgment with which all members of the Court agreed in R (Barclay) v Lord Chancellor and Secretary of State for Justice [2009] UKSC 9, [2010] 1 AC 464, para 52.
+I need only to set out parts of his summary, omitting also some of the case references: 53.
+First, article 3 of the First Protocol enshrines a characteristic principle of an effective democracy. 54.
+Second, although article 3 is phrased in terms of the obligation of the contracting states to hold elections which ensure the free expression of the opinion of the people rather than in terms of individual rights, article 3 guarantees individual rights, including the right to vote and the right to stand for election . 55.
+Third, there is room for implied limitations on the rights enshrined in article 3, and contracting states must be given a wide margin of appreciation in this sphere: Mathieu Mohin v Belgium (1987) 10 EHRR 1, para 52; Yumak v Turkey (2008) 48 EHRR 61, para 109(ii). 56.
+Fourth, the content of the obligation under article 3 varies in accordance with the historical and political factors specific to each state; . 57.
+Fifth, article 3 is not (by contrast with some other Convention rights, such as those enumerated in articles 8 to 11) subject to a specific list of legitimate limitations, and the contracting states are therefore free to rely in general in justifying a limitation on aims which are proved to be compatible with the principle of the rule of law and the general objectives of the Convention: Yumak, para 109 (iii); Tanase v Moldova (Application No 7/08) (unreported) given 18 November 2008, para 105. 58.
+Sixth, limitations on the exercise of the right to vote or stand for election must be imposed in pursuit of a legitimate aim, must not be arbitrary or disproportionate, and must not interfere with the free expression of the opinion of the people in the choice of the legislature: Yumak, para 109(iii) to (iv). 59.
+Seventh, such limitations must not curtail the rights under article 3 to such an extent as to impair their very essence, and deprive them of their effectiveness.
+They must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage.
+Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature and the laws which it promulgates: Mathieu Mohin, para 52; Yumak, para 109(iv).
+The European Court of Human Rights has expressed its attitude to the exclusion or limitation of prisoners voting rights in well known decisions.
+Hirst v United Kingdom (No 2) (2005) 42 EHRR 849 and Scoppola v Italy (No 3) (2012) 56 EHRR 663 each came first before a simple Chamber of seven judges and then before a Grand Chamber composed of 17 judges.
+Hirst (No 2) was a claim regarding his disenfranchisement from voting in United Kingdom Parliamentary and local elections brought by a prisoner serving a life sentence in England for manslaughter on the ground of diminished responsibility, whose tariff period had expired without his release.
+Scoppola was a claim relating to disenfranchisement under Italian law brought by a prisoner serving a sentence of 30 years imprisonment for murder, attempted murder and other offences.
+In between these two decisions came Greens and MT v United Kingdom (2010) 53 EHRR 710, in which a simple Chamber applied the principles in Hirst (No 2) to complaints of ineligibility to vote in both European and United Kingdom Parliamentary elections.
+More recently simple Chambers have applied the principles in Hirst (No 2) and Scoppola in Anchugov and Gladkov v Russia (Application Nos 11157/04 and 15162/05) (unreported), 4 July 2013, and Syler v Turkey (Application No 29411/07) (unreported), 17 September 2013.
+In Greens the Strasbourg Court gave the United Kingdom six months to introduce legislative proposals to amend RPA section 3, a period subsequently extended first pending the decision in Scoppola and then to six months after the Grand Chamber decision in Scoppola, delivered 22 May 2012.
+A draft Bill was published for pre legislative scrutiny on 22 November 2012 (Cm 8499) and a joint select committee was established to undertake this and to report by 31 October 2013.
+As envisaged in Hirst (No 2), para 83, the United Kingdom government has continued in this regard to liaise with the Committee of Ministers of the Council of Europe, which has on 6 December 2012 accepted the draft bill and the establishment of the committee as a legitimate means of implementing the judgment in Greens, and at its meeting on 26 September 2013, noted with interest that the pre legislative scrutiny by the committee was now due to be completed by 31 October 2013, underlined the urgency of bringing the legislative process to a conclusion, urged the United Kingdom authorities to provide information on the proposed legislative timescale without further delay and decided to resume examination of the progress made at a meeting in December 2013.
+This ongoing process was in June 2013 noted by the Strasbourg Court in its judgment in McLean and Cole, paras 36 37, where the Court concluded that, in its light, there was nothing to be gained from examining applications concerning future elections at this time (para 37).
+In Hirst (No 2), Greens and Scoppola the European Court of Human Rights acknowledged the width of the margin of appreciation, or the wide range of policy alternatives, which States enjoy in relation to voting rights (Hirst (No 2), para 78, Greens, para 114 and Scoppola, para 83).
+In both Hirst (No 2) and Scoppola the Grand Chamber acknowledged that disenfranchisement of convicted serving prisoners may be considered to pursue the aims of preventing crime and enhancing civic responsibility and respect for the rule of law (Hirst (No 2), paras 74 75 and Scoppola, para 90).
+In Hirst (No 2) the Grand Chamber (upholding the earlier Chamber) held that the United Kingdoms ban on prisoner voting was a general, automatic and indiscriminate restriction on a vitally important Convention right which fell outside any acceptable margin of appreciation and was incompatible with A3P1 (para 82).
+A powerfully constituted minority of the Grand Chamber (including its President and future President) dissented.
+It took as its test whether the restrictions on prisoner voting impair the very essence of the right to vote or are arbitrary (para O III5), and it pointed out that the Court should be very careful not to assume legislative functions and that there was little consensus in Europe about whether or not prisoners should have the vote (para O III6).
+It noted that a multi party Speakers Conference on Electoral Law in 1968 had unanimously recommended that convicted persons should not be entitled to vote, and that the RPA had been amended in 2000 only to permit remand prisoners and unconvicted mental patients to vote.
+As to the majority comment that there was no evidence of substantive debate in Parliament about the ban on convicted prisoners voting, the minority disagreed, on the basis that it was not for the Court to prescribe the way in which national legislatures carry out their legislative functions, and it must be assumed that the RPA reflects political, social and cultural values in the United Kingdom (para O III7)
+In Scoppola the United Kingdom intervened and the Attorney General appeared before the Grand Chamber to ask that it reconsider Hirst (No 2).
+But, in its judgment the Grand Chamber said (para 96) that it reaffirmed the principles set out by the Grand Chamber in the Hirst (No 2) judgment, in particular the fact that when disenfranchisement affects a group of people generally, automatically and indiscriminately, based solely on the fact that they are serving a prison sentence, irrespective of the length of the sentence and irrespective of the nature or gravity of their offence and their individual circumstances, it is not compatible with [A3P1].
+However, the Grand Chamber (reversing the simple Chamber) found no contravention in relation to the Italian law in issue in Scoppola.
+The only dissent, by Judge Thr Bjrgvinsson, related to this conclusion.
+The Italian law was held compatible with the Convention because disenfranchisement applied only to sentences of three or more years, and lasted for only five years in the case of sentences of three to five years, though for life in the case of longer sentences.
+The Grand Chamber said that As a result, a large number of convicted prisoners are not deprived of the right to vote (paras 106 and 108).
+Furthermore, any prisoner could, three years after completing his sentence, apply for rehabilitation, which would be granted upon his displaying consistent and genuine good conduct and would terminate any ancillary penalties and other penal effect of the conviction including disenfranchisement (Scoppola, paras 38 and 109).
+The Grand Chamber specifically rejected the Chamber view that any decision to deprive a prisoner of the vote should be taken by a court, saying (para 99): While the intervention of a judge is in principle likely to guarantee the proportionality of restrictions on prisoners' voting rights, such restrictions will not necessarily be automatic, general and indiscriminate simply because they were not ordered by a judge.
+Indeed, the circumstances in which the right to vote is forfeited may be detailed in the law, making its application conditional on such factors as the nature or the gravity of the offence committed.
+Judge Thr Bjrgvinsson dissented because in his view the Grand Chamber judgment in Scoppola offer[ed] a very narrow interpretation of the Hirst judgment which stripped it of all its bite (para OI 16).
+In particular, the Grand Chamber had in his view overlooked significant elements of the reasoning in Hirst (No 2), notably the absence of any direct link between the facts of the individual case and the ban on voting, the bluntness of the Italian legislation, just like the UK legislation, and the absence of evidence that either the legislature or the courts had weighed the proportionality of the ban (para 0I 13).
+Should the Supreme Court follow the Strasbourg case law?
+On the present appeal, the Attorney General (withdrawing a concession of incompatibility made in the courts below) has made a fresh challenge to the principles endorsed by the European Court of Human Rights in Hirst (No 2) and Scoppola.
+He points out, correctly, that the Supreme Court is, under section 2(1) of the Human Rights Act, obliged only to take into account any judgment or decision of the European Court of Human Rights when determining a question which has arisen in connection with a Convention right.
+In R v Horncastle [2009] UKSC 14, [2010] 2 AC 373, para 11 Lord Phillips said that The requirement to take into account the Strasbourg jurisprudence will normally result in the domestic court applying principles that are clearly established by the Strasbourg court.
+There will, however, be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process.
+In such circumstances it is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for adopting this course.
+This is likely to give the Strasbourg court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between the domestic court and the Strasbourg court.
+In Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 104,
+para 48 Lord Neuberger summarised the position: This court is not bound to follow every decision of the European court.
+Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the court to engage in the constructive dialogue with the European court which is of value to the development of Convention law: see e g R v Horncastle [2010] 2 AC 373.
+Of course, we should usually follow a clear and constant line of decisions by the European court: R (Ullah) v Special Adjudicator [2004] 2 AC 323.
+But we are not actually bound to do so or (in theory, at least) to follow a decision of the Grand Chamber.
+As Lord Mance pointed out in Doherty v Birmingham City Council [2009] AC 367, para 126, section 2 of the 1998 Act requires our courts to take into account European court decisions, not necessarily to follow them.
+Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this court not to follow that line.
+In relation to authority consisting of one or more simple Chamber decisions, dialogue with Strasbourg by national courts, including the Supreme Court, has proved valuable in recent years.
+The process enables national courts to express their concerns and, in an appropriate case such as R v Horncastle, to refuse to follow Strasbourg case law in the confidence that the reasoned expression of a diverging national viewpoint will lead to a serious review of the position in Strasbourg.
+But there are limits to this process, particularly where the matter has been already to a Grand Chamber once or, even more so, as in this case, twice.
+It would have then to involve some truly fundamental principle of our law or some most egregious oversight or misunderstanding before it could be appropriate for this Court to contemplate an outright refusal to follow Strasbourg authority at the Grand Chamber level.
+The Attorney Generals submissions to us in this case have to be considered in that light.
+Parliament has required this Court to take into account Strasbourg case law (Human Rights Act, section 2(1)(a)) and, So far as it is possible to do so, to read and give effect to legislation in a way which is compatible with the Convention rights (section 3(1)).
+Parliament has given this Court, if satisfied that a provision of primary legislation is incompatible with a Convention right, power to make a declaration of that incompatibility (section 4).
+The Act itself contemplates that domestic legislation may not match this countrys international obligations as established by case law of the European Court of Human Rights.
+It is against this background that the Supreme Court must consider whether the Attorney General has made good his case that the Court should refuse to follow and apply the approach taken by the European Court of Human Rights in Hirst (No 2) and Scoppola.
+The Attorney General took issue with any description of Hirst (No 2) and Scoppola as a clear and consistent line of decisions.
+But, whatever else may be said about their reasoning or its outcome, they both clearly stand for the core proposition, directly applicable to the current general ban on convicted prisoners voting, quoted in paras 20 and 22 above.
+At the heart of the Attorney Generals submissions lies the wide margin of appreciation which States have in this area, and the variety of legislative attitudes in other States, some according with the United Kingdoms.
+These were matters which the European Court of Human Rights acknowledged, but in the Attorney Generals submission failed to respect.
+In support of his submission the Attorney General makes a number of points.
+First, the area is one where there is room (in Laws LJs words in the Court of Appeal, [2010] EWCA Civ 1439, [2011] 1 WLR 1436, para 32) for deep philosophical differences of view between reasonable people.
+In circumstances where the Grand Chamber accepted as a legitimate aim of disenfranchisement enhancing civic responsibility and respect for the rule of law (Scoppola, para 90), the United Kingdom was, as a participatory democracy, entitled to withhold the vote from those serving sentences for offences sufficiently serious to justify such a sentence, including those who, after their tariff period, could not satisfy the Parole Board that it was no longer necessary for the protection of the public that they should be confined (Crime (Sentences) Act 1997, section 28(6)(b)).
+Secondly, the Grand Chamber in Hirst (No 2) (para 79) attached some significance to a suggested lack of evidence that Parliament [had] ever sought to weigh the competing interests or to assess the proportionality of a blanket ban on the right of a convicted prisoner to vote, adding only: It may perhaps be said that, by voting the way they did to exempt unconvicted prisoners from the restriction on voting, Parliament implicitly affirmed the need for continued restrictions on the voting rights of convicted prisoners.
+Nonetheless it cannot be said that there was any substantive debate by members of the legislature on the continued justification in light of modern day penal policy and of current human rights standards for maintaining such a general restriction on the right of prisoners to vote.
+The majority in Scoppola did not mention this factor, as Judge Thr Bjrgvinsson, dissenting, pointed out at paras OI 09 and OI 15.
+Nevertheless, the Attorney General submits that it is relevant that Parliament has, since Hirst (No 2), conducted three formal debates, in Westminster Hall on 11 January 2011, in the Commons on 10 February 2011, when MPs voted 234 to 22 to maintain the status quo, and again in the Commons on 22 November 2012, after the Lord Chancellor introduced a draft Bill, the outcome of which is not yet determined.
+Mindful of the injunction in the Bill of Rights 1688 That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament, the Attorney General did not suggest that we should seek to evaluate the quality of the debate in Parliament.
+But he relied upon the fact of debate and the continuation following it of the ban on prisoner voting as underlining his submission that the Convention rights should be understood and applied in a way respecting the choice made by the institution competent to make such choices in a democracy.
+He pointed out that the Court in its recent decision in Animal Defenders International v United Kingdom (Application No 48876/08, 22 April 2013) demonstrated the considerable weight that it was prepared to attach to exacting and pertinent reviews, by both parliamentary and judicial bodies, of the complex regulatory regime governing political broadcasting in the United Kingdom and to their view that the general measure [prohibiting religious or political advertising on radio and television] was necessary to prevent the distortion of crucial public interest debates and, thereby, the undermining of the democratic process (para 116).
+Thirdly, the Attorney General argues, it was fallacious to treat the United Kingdom ban as affecting a group of people generally, automatically and indiscriminately, simply because the ban was based solely on the fact that they are serving a prison sentence, irrespective of the length of the sentence and irrespective of the nature or gravity of their offence and their individual circumstances.
+Any rule of law affects a group of people defined by its terms.
+If a group is rationally defined, there is no reason why there should necessarily be exceptions.
+As the Grand Chamber pointed out in relation to the Italian legislation in Scoppola (para 106), so also in the United Kingdom a sentencing court takes into account the nature and gravity of the offence as well as individual circumstances when deciding in the first place whether any and if so what sentence of imprisonment is required.
+As a result, only 8% of convicted offenders go to prison in England, 15% in Scotland.
+The group affected is confined to convicted prisoners and so excludes those in prison on remand awaiting trial as well as hospital detainees.
+Further, within the group of convicted prisoners, the ban does not extend to those in prison for contempt or default in paying fines.
+Despite the Attorney Generals forceful submissions, I do not consider that it would be right for this Court to refuse to apply the principles established by the Grand Chamber decisions in Hirst (No 2) and Scoppola consistently with the way in which they were understood and applied in those decisions.
+The Grand Chamber in Scoppola was prepared to give the Italian legislator a greater margin of manoeuvre than one would have expected from its previous decision in Hirst (No 2).
+But this was on the basis that the Italian law did not involve a blanket ban in respect of all or almost all convicted prisoners.
+It excluded those convicted of minor offences (involving less than three years imprisonment), and it had a two step gradation in the length of the ban according to whether the sentence was for less or for more than five years imprisonment.
+As a result a large number of convicted prisoners had the vote.
+Furthermore, there was the possibility of rehabilitation for consistent and genuine good conduct displayed for three years after release.
+Nothing in Scoppola therefore suggests that the Grand Chamber would revise its view in Hirst (No 2) to the point where it would accept the United Kingdoms present general ban.
+There is on this point no prospect of any further meaningful dialogue between United Kingdom Courts and Strasbourg.
+I would also reject the suggestion that the Supreme Court should refuse to apply the principles stated in the Strasbourg case law in the present circumstances.
+Deep though the philosophical differences of view between reasonable people may be on this point, it would in my opinion exaggerate their legal and social importance to regard them as going to some fundamental substantive or procedural aspect of our law: see the citation from Pinnock in para 26 above.
+While the diversity of approach in this area within Europe derives from different traditions and social attitudes, it makes it difficult to see prisoner disenfranchisement as fundamental to a stable democracy and legal system such as the United Kingdom enjoys.
+It is possible to argue, as the Canadian Supreme Court did in Sauv v Canada (No 2) [2002] 3 SCR 519 that the objective of promoting civic responsibility and respect for the law may be undermined, rather than enhanced, by denying serving prisoners the right to vote.
+The haphazard effects of an effectively blanket ban are certainly difficult to deny.
+As the Grand Chamber observed in Hirst (No 2) (para 77) it includes a wide range of offenders and sentences, from one day to life and from relatively minor offences to offences of the utmost gravity.
+The Grand Chamber may have had in mind that, although minor offences involve shorter periods of disenfranchisement, the effect is more likely to be haphazard, depending as it must upon the timing of elections.
+Application of the principles in Hirst (No 2) and Scoppola
+This brings me to the effect of the principles in Hirst (No 2) and Scoppola in the present cases.
+Chesters claim, which relates to voting in European Parliamentary elections, is based directly on the Convention rights as well as on EU law.
+The first question is therefore whether he is a victim capable of bringing a claim against the respondents under the Human Rights Act.
+Section 7 of the Act provides: (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act. (3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act. (4) If the proceedings are made by way of a petition for judicial review in Scotland, the applicant shall be taken to have title and interest to sue in relation to the unlawful act only if he is, or would be, a victim of that act. (7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act.
+In Hirst (No 2), the majority rejected a submission by the United Kingdom Government that the Chamber had assessed the compatibility of the legislation with the Convention in the abstract without consideration of whether removal of the vote from the applicant as a person convicted of a serious offence and sentenced to life imprisonment disclosed a violation.
+It said (para 72) that Hirsts complaint was in no sense an actio popularis.
+He was directly and immediately affected by the legislative provision of which complaint is made and in these circumstances the Chamber was justified in examining the compatibility with the Convention of such a measure, without regard to the question whether if the measure had been framed otherwise and in a way which was compatible with the Convention, the applicant might still have been deprived of the vote.
+It would not in any event be right for the Court to assume that, if Parliament were to amend the current law, restrictions on the right to vote would necessarily still apply to post tariff life prisoners or to conclude that such an amendment would necessarily be compatible with Article 3 of Protocol No 1.
+This was another point on which the minority disagreed, observing the Courts task was not normally to review the relevant law and practice in abstracto and that it was in our opinion, difficult to see in what circumstances restrictions on voting rights would be acceptable, if not in the case of persons sentenced to life imprisonment (para O III8).
+Taking the majority approach, Chester is a victim for the purposes of section 7 of the Human Rights Act, but this means that he satisfies a pre condition to, not that he is necessarily entitled to any particular relief in, a complaint about the general disenfranchisement of prisoners from voting in United Kingdom and European Parliamentary elections which results from EPEA section 8(2) and (3), read with RPA section 3.
+He claims a declaration that both RPA section 3 and EPEA section 8(2) are incompatible with A3P1. (I note that, in contrast, under European Union law, his primary submission in relation to EPEA section 8(2) is that it can be rendered compatible with European Union law by reading in an additional right to vote in European Parliamentary elections if necessary to comply with European Union law.)
+The incompatibility of RPA section 3 with A3P1 was recognised by the Registration Appeal Court in Smith v Scott 2007 SC 345, which made a declaration of incompatibility.
+That declaration was properly made in the case of a convicted person sentenced to five years imprisonment for being concerned with supply of controlled drugs.
+It entitled the Government to use the remedial order provisions contained in section 10 of the Human Rights Act.
+The Government decided not to do this.
+The issue is now however before the United Kingdom Parliament and under active consideration in the light of the decisions in Hirst (No 2), Greens and Scoppola.
+Further, it is clear from Greens (para 18 above) and the Attorney General accepts that EPEA section 8 is, in relation to European Parliamentary elections, as incompatible with A3P1 as RPA section 3 is, in relation to United Kingdom Parliamentary elections.
+A declaration is a discretionary remedy, both generally and under the Human Rights Act 1998, section 4 (4).
+There is in these circumstances no point in making any further declaration of incompatibility.
+On this I am in agreement with both Burton J at first instance, [2009] EWHC 2923 (Admin), and the Court of Appeal, [2010] EWCA Civ 1439, [2011] 1 WLR 1436.
+The Strasbourg Courts own decision in McLean and Cole to defer consideration of applications concerning future elections in the light of the ongoing Parliamentary process is also consistent with this view.
+Further, it can, I consider, now be said with considerable confidence that the ban on Chesters voting is one which the United Kingdom Parliament can, consistently with the Convention right, and would maintain, whatever amendments it may be obliged to make or may make to allow any prisoners detained for different reasons or periods to vote.
+In the original Chamber decision in Hirst (2004) 38 EHRR 825, reference was made to the continuation of the ban on voting after the expiry of the tariff period in the case of a life prisoner as an additional anomaly (para 49).
+Nevertheless, the Chamber went on to say that it could not speculate as to whether Hirst, whose tariff had expired, would still have been deprived of the vote even if a more limited restriction on the right to [sic] prisoners to vote had been imposed, which was such as to comply with the requirements of [A3P1] (para 51).
+It is notable that the majority in the Grand Chamber in Hirst (No 2) did not endorse this reference in para 49 of the simple Chambers judgment to an additional anomaly, saying only that it would not in any event be right for the Court to assume that, if Parliament were to amend the current law, restrictions on the right to vote would necessarily still apply to post tariff life prisoners or to conclude that such an amendment would necessarily be compatible with [A3P1] (para 72).
+Only in a concurring opinion of Judge Caflisch did he raise the point, going so far as to say that this may be the essential point for the present case (para O 17(d)).
+His opinion does not appear to have been shared by other judges, and must now in any event be seen in the light of the decision in Scoppola, accepting that a lifelong ban on voting by prisoners sentenced for five or more years was legitimate.
+The additional fact that it was subject to removal after three years had elapsed from release, provided that the offender has displayed consistent and genuine good behaviour does not appear to have been critical to this conclusion; but, however that may be, it points strongly in favour of a view that it can be legitimate to withhold a prisoners voting rights until satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.
+The Grand Chambers reasoning in its very recent decision in Vinter v United Kingdom (Application Nos 66069/09, 130/10 and 3896/10; 9 July 2013), which post dated submissions in this case, is also worth noting for its explanation of detention during a post tariff period by reference to core aims of imprisonment: 108.
+First, a life sentence does not become irreducible by the mere fact that in practice it may be served in full.
+No issue arises under Article 3 if a life sentence is de jure and de facto reducible .
+In this respect, the Court would emphasise that no Article 3 issue could arise if, for instance, a life prisoner had the right under domestic law to be considered for release but was refused on the ground that he or she continued to pose a danger to society.
+This is because States have a duty under the Convention to take measures for the protection of the public from violent crime and the Convention does not prohibit States from subjecting a person convicted of a serious crime to an indeterminate sentence allowing for the offenders continued detention where necessary for the protection of the public .
+Indeed, preventing a criminal from re offending is one of the essential functions of a prison sentence .
+This is particularly so for those convicted of murder or other serious offences against the person.
+The mere fact that such prisoners may have already served a long period of imprisonment does not weaken the States positive obligation to protect the public; States may fulfil that obligation by continuing to detain such life sentenced prisoners for as long as they remain dangerous . [case references omitted]
+emphasised in Hirst (No 2) that In Greens, the Court noted (para 113) that the Grand Chamber had there are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe which it is for each contracting state to mould into their own democratic vision.
+The Court recalls that its role in this area is a subsidiary one: the national authorities are, in principle, better placed than an international court to evaluate local needs and conditions and, as a result, in matters of general policy, on which opinions within a democratic society may reasonably differ, the role of the domestic policy maker should be given special weight.
+See also Scoppola, para 83 and Syler, para 33.
+Within the domestic legal context, it is now therefore for Parliament as the democratically elected legislature to complete its consideration of the position in relation to both RPA section 3 and EPEA section 8.
+There is no further current role for this Court, and there is no further claim, for a declaration or, in the light of the incompatibility, for damages which the appellant Chester can bring.
+European law
+I turn to the position under European Community and now Union law.
+Before Burton J and the Court of Appeal, and reflecting no doubt the argument before those courts, any claim under European Union law by Chester was treated as effectively consequential on the incompatibility of the ban with A3P1, and attracted no separate analysis.
+Bearing in mind the date of Chesters claim for judicial review (December 2008), he is also unable to rely upon European law as it stands after 1 December 2009 under the TEU and TFEU, as a result of the Treaty of Lisbon.
+This difficulty is not overcome by maintaining that his claim related to forthcoming elections.
+It still required to be viewed in the light of the law when it was brought.
+At that date, the Charter of Fundamental Rights did not have direct legal force, so that there was no equivalent of article 6.1 TEU.
+The predecessor of article 6.3 TEU was article 6.2 of the pre December 2009 TEU reading: The Union shall respect fundamental rights, as guaranteed by the [Human Rights] Convention and as they result from the constitutional traditions common to the Member States, as general principles of Community law.
+The predecessor of article 14.3 TEU was article 190.1 and 4 of the Treaty on the European Community (EC), set out in para 11 above.
+Article 22.1 and 22.2 had a precise equivalent in article 19.1 and 19.2 EC, but the predecessor of article 20 was article 17 EC, reading simply: 17.1 Citizenship of the Union is hereby established.
+Every person holding the nationality of a Member State shall be a citizen of the Union.
+Citizenship of the Union shall complement and not replace national citizenship. 2.
+Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.
+McGeochs claim under European Union law was on the other hand issued in early 2011 and relates to voting in local as well as Scottish and European Parliamentary elections.
+It therefore opens up all possible avenues for exploration under current European Union law.
+However, there is nothing in European Union law which can entitle McGeoch to complain in respect of his inability to vote in Scottish Parliamentary elections.
+European Union law refers in various contexts, which have already been set out in this judgment, to voting in European Parliamentary elections and in municipal elections, and to no other elections.
+It is obvious that Scottish Parliamentary elections fall within neither category: see also what I have already said in para 9 above.
+That municipal elections are local government elections at a lower level of government, closer to people and with a more direct responsibility for service delivery, is furthermore consistent with the nature of the units found (though in the case of Scotland, not yet updated) in the annex to Council Directive 94/80/EC, which lays down detailed arrangements for the exercise of the right to vote and stand in municipal elections by Union citizens residing in a Member State of which they are not nationals.
+The submissions under European Union law are put at various different levels.
+Mr Aidan ONeill QC for McGeoch concentrated upon articles 20 and 22 TFEU, read with articles 39 and 40 CFR.
+Mr Southey for Chester adopted Mr ONeills submissions, but relied in addition upon the more general provisions of articles 6.3 (or its predecessor article 6.2 in the pre December 2009 TEU), 10 and 14.3 TEU (or the latters predecessor articles 190.1 and 4 EC).
+In his submission, the effect of these articles was, at the least, to incorporate into European Union law in relation to voting in European Parliamentary elections the principles recognised under Strasbourg case law (Hirst (No 2) and Scoppola) in relation to national legislatures.
+Quite possibly, he submitted, their effect may even be to lead the Court of Justice to go further than Strasbourg case law by prohibiting on a more extensive basis any limitations on the democratically based universal suffrage to which the Treaties refer.
+If Mr Southeys wider submission with regard to the wholesale importation into European Community or Union law of the Strasbourg jurisprudence regarding the right to vote were valid, it would be surprising to find no hint of this in any Court of Justice judgment.
+That is particularly so with regard to Case C 145/04 Spain v United Kingdom [2006] ECR I 7917 and Case 300/04 Eman and Sevinger v College van Burgemeester en Wethouders van den Haag [2006] ECR I 8055, despite the difference in the actual issues.
+Mr Southeys submission would also mean that a case such as Matthews v United Kingdom (1999) 28 EHRR 361 could, now at least, be pursued in either of two parallel forums.
+Spain v United Kingdom and Eman and Sevinger
+The judgments in Spain v United Kingdom and Eman and Sevinger were both issued on the same day (12 September 2006) following an opinion of Advocate General Tizzano (dated 6 April 2006) which had covered both cases.
+The judgments contain discussion of the scope and effect of European Treaty law which bears on both Mr Southeys wider and Mr ONeills narrower submissions.
+In Spain v United Kingdom the first issue was whether it was legitimate under European law for the United Kingdom to extend the franchise in European Parliamentary elections to qualifying Commonwealth citizens, as well as European Union citizens, registered in the Gibraltar register.
+The Court held (para 78) that, in the then current state of Community law the definition of the persons entitled to vote and to stand as a candidate in elections to the European Parliament falls within the competence of each Member State in compliance with Community law, and that Articles 189 EC, 190 EC, 17 EC and 19 EC do not preclude the Member States from granting that right to vote and to stand as a candidate to certain persons who have close links to them, other than their own nationals or citizens of the Union resident in their territory.
+In the course of its reasoning, the Court said:
+Articles 189 EC and 190 EC do not expressly and precisely state who are to be entitled to the right to vote and to stand as a candidate for the European Parliament. 66 [Article 19 EC] is confined to applying the principle of non discrimination on grounds of nationality to the exercise of that right, by providing that every citizen of the Union residing in a Member State of which he is not a national is to have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. 76 .
+Article 19(2) EC . is confined, as pointed out in paragraph 66 above, to stating a rule of equal treatment between citizens of the Union residing in a Member State so far as concerns that right to vote and stand for election.
+While that provision, like Article 19(1) EC relating to the right of Union citizens to vote and to stand as a candidate at municipal elections, implies that nationals of a Member State have the right to vote and to stand as a candidate in their own country and requires the Member States to accord those rights to citizens of the Union residing in their territory, it does not follow that a Member State in a position such as that of the United Kingdom is prevented from granting the right to vote and to stand for election to certain persons who have a close link with it without however being nationals of that State or another Member State.
+The Court also referred to the provisions of the 1976 Act (paras 67 to 69).
+In paras 90 to 97 the Court of Justice addressed Spains second plea that the United Kingdom had, in the arrangements made to enable the Gibraltar electorate to vote, gone further than required to comply with the European Court of Justices judgment in Matthews v United Kingdom.
+It recited in this connection that it was the United Kingdoms obligation to comply with Matthews and that in the light of the case law of the European Court of Human Rights and the fact that that Court has declared the failure to hold elections to the European Parliament in Gibraltar to be contrary to [A3P1] ., the United Kingdom cannot be criticised for adopting the necessary legislation.
+In Eman and Sevinger the Court was concerned with the legitimacy under European Union law of a provision of Dutch law which conferred the right to vote in European Parliamentary elections upon Dutch nationals residing in the Netherlands or abroad except in Aruba and the Netherlands Antilles.
+After repeating (para 45) that in the current state of Community law, the definition of the persons entitled to vote and to stand for election falls within the competence of each Member State in compliance with Community law, the Court opened a possible role for European law in the instant case by continuing It must, however, be ascertained whether that law precludes a situation such as that in the main proceedings, in which Netherlands nationals residing in Aruba do not have the right to vote and to stand as a candidate in elections to the European Parliament.
+In relation to articles 189 and 190 EC, the Court repeated its words in para
+65 of Spain v United Kingdom.
+It also repeated (para 53) that Article 19(2) EC is confined to applying the principle of non discrimination on grounds of nationality to that right to vote and stand for election, by stipulating that every citizen of the Union residing in a Member State of which he is not a national is to have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State.
+The Court further noted that the European Court of Human Rights had accepted that the right to vote might be limited by reference to residence.
+However, the Court found in the principle of equal treatment or non discrimination, which is one of the general principles of Community law a basis for comparing the position of a Netherlands national resident in the Netherlands Antilles or Aruba and one residing in a non member country (paras 57 58) and for concluding that the Dutch Government had not demonstrated an objective justification for the different treatment of these two persons (para 60).
+Earlier in its judgment, the Court of Justice had observed that A3P1 did not apply to Aruba; unlike the case with Gibraltar, the European Treaties have no application there, so the European Parliament could not be regarded as the Aruba legislature (para 48).
+But the Courts decision was based on the fact that the complainants held Dutch nationality and were as such citizens of the Union under article 17(1) EC, and entitled to enjoy the rights conferred by the Treaty under article 17(2).
+They succeeded under the general European legal principle of non discrimination.
+In Spain v United Kingdom the Court was thus concerned with Gibraltar which is within the territorial scope of both the Community and the European Convention on Human Rights, but with voting rights which the United Kingdom had conferred on persons who were not United Kingdom nationals for the purposes of Community law.
+The Court had nonetheless to consider the nature of the United Kingdoms obligation to extend the franchise in European Parliamentary elections to Gibraltar.
+In Eman and Sevinger, the Court was concerned with Aruba which is outside the territorial scope of the Community, but within the territorial scope of the European Convention on Human Rights (by the combination of declarations dated 29 November 1954 and 24 December 1985 deposited by the Netherlands with the Council of Europe), and with voting rights which had been withheld from persons who were citizens of the European Union.
+What is notably absent from the Court of Justices judgments in both Spain v United Kingdom and Eman and Sevinger is any suggestion that, by reason of article 6.2 of the pre December 2009 TEU and articles 17 and 190 EC, the European Treaties confer on citizens of the Union an individual right to vote, the scope and conditions of which must be measured by reference to the principles established in European Court of Human Rights jurisprudence, such as Hirst (No 2) and Scoppola.
+If available, that could have been advanced as a reason why it was obligatory under European Community law for the United Kingdom to take steps to enable the Gibraltar electorate to vote.
+Instead, the reason given was the United Kingdoms Council of Europe obligations to comply with Strasbourg decisions: see para 49 above.
+Likewise, in Scoppola there was no suggestion that as Union citizens the claimants were under Community law entitled to enjoy an individual right to vote, complying with the principles established by European Court of Human Rights jurisprudence.
+Advocate General Tizzano in his opinion for these two cases had adopted much broader reasoning which the Court in its judgments was careful not to endorse.
+He would have inferred from Community principles and legislation as a whole . that there is an obligation to grant the voting rights in question to citizens of the Member States and, consequently, to citizens of the Union (para 67), deriving this (para 69) from the principles of democracy on which the Union is based, and in particular, to use the words of the Strasbourg Court, the principle of universal suffrage which has become the basic principle in modern democratic States [FN: Eur.
+Court H.R. Mathieu Mohin and Clerfayt v Belgium, judgment of 2 March 1987 . , Hirst v United Kingdom (No 2), . 30 March 2004] and is also codified within the Community legal order in Article 190(1) EC and Article 1 of the 1976 Act, which specifically provide that the members of the European Parliament are to be elected by direct universal suffrage.
+He went on to say that this general guidance was also confirmed by the fact that the right in question is a fundamental right safeguarded by [A3P1], and to mention in a footnote that the text of article 6(2) need merely be borne in mind (paras 70 to 71).
+Turning to Spains second criticism, Advocate General Tizzano also derived from his conclusion that individual voting was a fundamental right of citizens of the Union a converse conclusion that it was illegitimate for the United Kingdom to deviate to any greater extent from its statement in what was then Annex II of the 1976 Act that The United Kingdom will apply the provisions of this Act only in respect of the United Kingdom.
+As stated in para 49 above, the Court of Justice adopted quite different reasoning and reached an opposite conclusion, based simply on the United Kingdoms obligation to give effect to the European Court of Human Rights ruling in Matthews.
+The Court of Justice did not therefore endorse Advocate General Tizzanos broad approach, or import the Strasbourg jurisprudence into the general provisions of Community and Union law referring to voting in European Parliamentary elections.
+There was good reason for this.
+Eligibility to vote is under the Treaties and the 1976 Act a matter for national Parliaments, one of considerable national interest.
+There is no sign that the European Commission has ever sought to involve itself in or take issue with voting eligibility in Member States or specifically with the restrictions on prisoner voting which apply in a number of such States.
+The Strasbourg jurisprudence operates as the relevant control, albeit one that has itself proved in some respects controversial.
+It would not only unnecessarily duplicate that control at the European Community or Union level, it could also lead to further conflict and uncertainty.
+Hence the Court of Justice in Eman and Sevinger confined its reasoning to a well established core principle of Treaty law, that of non discrimination, in that case between different categories of Dutch national, to which I shall return (paras 60 64 below).
+Further, even in the form into which they have been shaped by the Treaty of Lisbon, it is notable that such provisions as the European Treaties contain concerning individual voting rights are notably limited in scope.
+They relate to the core Treaty concerns of equality between nationals or Union citizens and freedom of movement within the European Union (see para 59 below).
+For all these reasons, I reject Mr Southeys wider submission set out in (paras 46 47 above).
+Articles 20.2 and 22 TFEU
+In Mr ONeills submission, the changes effected by the Treaty of Lisbon significantly altered the Treaty position considered in Spain v United Kingdom and Eman and Sevinger.
+In those cases article 19 EC was explained as confined to stating rules of equal treatment requiring Union citizens residing in Member States of which they were not nationals to be able to vote and stand in municipal as well as European Parliamentary elections under the same conditions as nationals.
+The same must apply to the current equivalent, article 22 TFEU.
+But Mr ONeill relies upon the introduction of the new article 20.2(b).
+This, he submits, is a self standing provision, expressly conferring the individual right to vote on citizens of the Union in respect of European Parliamentary and municipal elections.
+In my opinion, it is clear that that is not the effect of article 20.2(b).
+As its opening sentence proclaims, article 20 deals with the enjoyment of rights provided in the Treaties.
+What follow are some of the basic rights so enjoyed.
+They all have a supra national element.
+Article 20.2(b) is thus expressly limited to recording the existence of the right of Union citizens to vote and stand in municipal and European Parliamentary elections in their Member State of residence under the same conditions as nationals of that State.
+The omission of express reference to the fact that this is dealing with citizens resident in a State other than that of their nationality is entirely understandable in the context of what was intended as a concise summary.
+That fact is anyway implicit.
+The detailed Treaty provisions regarding the rights to which article 20.2(b) refers are contained in article 22.1 and 22.2, which would on Mr ONeills case in fact be not only redundant but also positively misleading in their limitation to the situation of residence in a Member State other than that of nationality.
+The position is further confirmed by articles 39 and 40 CFR, which again would be positively misleading in their limitation to that situation, and by the Explanations to the CFR which explicitly equate articles 20.2 and 22: see para 16 above.
+There is no basis for or likelihood in Mr ONeills supporting submission that article 20.2(b) was expressly aimed at, in effect, endorsing Advocate General Tizzanos views as to where European Union law was or should go in conferring individual rights.
+Had that been remotely intended, quite different explicit language would have been used.
+Non discrimination
+The other limb of Mr ONeills submissions involves reliance on the principle of non discrimination applied in Eman and Sevinger.
+The infringement there consisted in unequal treatment by Dutch law in relation to voting in European Parliamentary elections by Netherlands nationals in comparable situations.
+The most fundamental area in which this principle has always manifested itself is in relation to discrimination on the grounds of nationality: see article 7 of the original EEC Treaty, now article 18 TFEU, which provides: Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on the grounds of nationality shall be prohibited.
+But the principle has achieved much wider application.
+Article 13.1 EC (now substantially reproduced as article 19.1 TFEU) provides: Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council . may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
+Article 13 has been responsible for some well known, if in some respects controversial case law.
+The Court of Justice has accepted that, although the Treaty contemplates that the general principle of non discrimination underlying article 13 will be implemented by directives, Member States will be bound thereby to discontinue, disregard or set aside measures so far as they involve discrimination on a basis contrary to article 13 at least after the time for transposition of such a directive: Case C 555/07 Kkkdeveci v Swedex GmbH & Co KG [2010] 2 CMLR 33, para 61 and perhaps even when legislating in the area of the directive during the period for transposition: Case C 144/04 Mangold v Helm [2005] ECR I 9981.
+However, for the general principle of non discrimination to apply, the context must fall within the scope of Community or now Union law: see Mangold, para 75, Case C 427/06 Bartsch v Bosch und Siemens Hausgerte (BSH) Altersfrsorge GmBH [2008] ECR I 7245, para 25, Kkkdeveci, para 23, Case C 147/08 Rmer v Freie und Hansestadt Hamburg [2013] CMLR 11, para 70, and Craig and de Burca, EU Law: Text, Cases and Materials [OUP: 4th ed, 2008, p 891].
+The only difficulty about Eman and Sevinger is to identify the link with European law, once one has rejected the conclusion that European law recognises all EU citizens as having under European law an individual right to vote in European Parliamentary elections (paras 56 to 58 above).
+The general principle was simply stated to be applicable in a context where, and on the basis that, Netherlands nationals, who were under article 17.1 EC Union citizens, were being treated unequally in comparable situations in relation to European Parliamentary elections, having regard to the difference in treatment of Netherlands nationals resident, on the one hand, in the Netherlands Antilles and Aruba and, on the other hand, in other non EU member countries: see in particular paras 45, 56 to 58 of the Courts judgment.
+It is however a general principle of Strasbourg law under article 14 of the Convention that additional rights falling within the general scope of any Convention right for which the state has voluntarily decided to provide must in that event be provided without discrimination: Belgian Linguistics Case (No 2) (1968) 1 EHRR 252, 283, R (Clift) v Secretary of State for the Home Department [2006] UKHL 54, [2007] 1 AC 484, paras 12, 17 18.
+This principle in my opinion clearly underlies Eman and Sevinger.
+As the Court noted (para 53), article 19 EC (now article 22 TFEU) only covered nationals resident in another Member State.
+But the Dutch legislator had chosen to extend the right to vote to its nationals resident outside any Member State but not in the Dutch Antilles or Aruba.
+There was no justification for this different treatment of comparable situations in a context which fell within the scope of European law, that is voting by nationals residing outside their own member state.
+Supporting this is also the consideration that the Court accepted that the definition of the persons entitled to vote and to stand falls within the competence of each Member State in compliance with Community law (Spain v United Kingdom, para 78, Eman and Sevinger, para 45).
+If the qualification in compliance with Community law were meant to require scrutiny by reference to European Community law of all national limitations affecting European Parliamentary elections for their non discriminatory quality even where no other link with European law was established other than that the elections were European Parliamentary elections, that could, depending upon the intensity of the scrutiny, effectively erode the general principle that the Court was accepting.
+Position if the principle of non discrimination had been engaged
+This brings me to consideration of the nature and intensity of the scrutiny which would be required, if (contrary to my conclusion in paras 63 64) the principle of non discrimination were to be viewed as all embracing in the manner advocated by Mr ONeill and Mr Southey.
+In both Strasbourg and Luxembourg case law, discrimination issues are customarily described as involving a two stage process, consisting of first the identification of an appropriate comparator and then, if one is found, examination of the justification for any difference in treatment: see e.g. Edward and Lane, European Union Law (EE, 2013) para 6.125, citing numerous authorities.
+The exercise as presented is neither a unitary nor an entirely open one, or a court would in every case be required to ascertain the differences between two different situations and ask whether, assessing such differences and their significance as best it could, it considered the differences in their treatment to be fair or justified.
+There must be basic comparability before the court embarks on considering justification.
+Thus, in Eman and Sevinger itself the Court observed (para 57) that the principle of equal treatment or non discrimination, which is one of the general principles of Community law, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified The principle was reiterated in Case C485/08 P, Gualtieri v European Commission [2010] ECR I 3009, para 70 with reference to Eman and Sevinger as well as other cases including Case C 227/04 P Lindorfer v Council of the European Union [2007] ECR I6767.
+As the Court noted in Case C 267/06 Maruko v Versorgungsanstalt der deutschen Bhnen [2008] ECR I 1757, para 73, it is for the national court to determine whether two persons are in a comparable position.
+That does not however mean an identical position.
+The referring court in Maruko identified a gradual movement towards recognising equivalence of life partnership and marriage, meaning that, although the two were not identical, persons of the same sex could be regarded as being in a situation comparable to that of spouses so far as concerns the survivors benefit at issue in that case.
+The Court of Justice in Case 147/08 Rmer v Freie und Hansestadt Hamburg approved that approach, saying: 41 Accordingly, the existence of direct discrimination, within the meaning of the Directive, presupposes, first, that the situations being weighed up are comparable. 42 In that regard, it should be pointed out that, as is apparent from the judgment in Maruko at [67][73], first, it is required not that the situations be identical, but only that they be comparable and, secondly, the assessment of that comparability must be carried out not in a global and abstract manner, but in a specific and concrete manner in the light of the benefit concerned.
+Gualtieri was an appeal from the General Court and provides a contrasting example.
+The claimant complained that she received a lower daily allowance on the basis of the proximity of her spouses residence to her place of secondment than she would have done if she had been single, but living in a de facto union.
+The Court upheld the General Courts conclusion that the two situations were not comparable, saying: 75 . it must be observed that, although de facto unions and legally recognised unions, such as marriage, may display similarities in certain respects, those similarities do not necessarily mean that those two types of union must be treated in the same way. 76 In those circumstances, the decision to apply the criterion of matrimonial legal status appears neither arbitrary nor manifestly inappropriate in relation to the objective of reducing the allowances paid to SNEs [national experts seconded to the Commission] when they are in a situation in which it can be assumed that they bear fewer costs and disadvantages on account of their matrimonial status.
+Applying these principles to the present case, I do not regard convicted prisoners serving their sentence as in a comparable position either to free persons or to remand prisoners awaiting trial.
+They have a very different status, to which it is evident that very different considerations may apply and which are capable at least of giving rise to very different arguments.
+It follows that, assuming that the general principle of non discrimination applies under European Union law to eligibility to vote in European Parliamentary elections, there is in my view no basis for its application in the context of a complaint that convicted prisoners are discriminated against by reference to free persons or remand prisoners.
+The position assuming contrary conclusions
+I have concluded that the appellants are not entitled to invoke European law, because, firstly, it confers no individual right by reference to which the Strasbourg case law of Hirst (No 2) and Scoppola could be relevant (paras 58 and 59) and, secondly, the general principle of non discrimination recognised in Eman and Sevinger is not engaged (paras 63 64) or, if it is engaged, does not assist the appellants (para 68).
+In what follows, I will, for completeness, consider the position assuming opposite conclusions on all these points.
+If European law recognises an individual right to vote in European Parliamentary and/or municipal elections, I would reject Mr Southeys submission that it would or might go further than the Strasbourg case law in allowing convicted prisoners the vote.
+Court of Justice jurisprudence pays close attention to and, with very few exceptions, follows Strasbourg jurisprudence.
+Examples of divergence are few and far between, although one may, ironically, have occurred in a sequel to Eman and Sevinger concerning the right to vote in elections for the Kingdom of Holland, in so far as it is arguable that the Strasbourg court went less far in Sevinger and Eman v Netherlands (2007) 46 EHRR 179 than the Court of Justice did in Eman and Sevinger itself: see an instructive case note by Professor Leonard F M Besselink on this Strasbourg authority in (2008) 45 CMLR 787.
+In the present case, I reject in particular the submission that the Court of Justice might return to the theme suggested in Frodl v Austria (2010) 52 EHRR 267, para 34 by reference to Hirst (No 2), para 82 that it is essential that any disenfranchisement of a convicted prisoner be ordered on a case by case basis by a judge, rather than be pre determined by an otherwise appropriate legislative scheme.
+This suggestion was very clearly, and for very obvious reasons, rejected by the Grand Chamber in Scoppola v Italy, paras 99 100, a rejection which the simple Chamber in Anchugov, para 107, took pains to reiterate; see also (though coupled with a reference to judicial interventions being likely to guarantee the proportionality of restrictions on prisoners voting rights) Syler, para 39.
+The majority in the European Court of Human Rights in Hirst (No 2) found a violation because Hirst was directly and immediately affected by the legislative provision of which complaint is made and that the Chamber was justified in examining the compatibility with the Convention of such a measure, without regard to the question whether, if the measure had been framed otherwise and in a way which was compatible with the Convention, the applicant might still have been deprived of the vote (para 72).
+But it regarded the finding of a violation as just satisfaction and awarded no damages.
+As the Court said in Kkkdevici, para 51, it is for a national court, in applying national law, to provide, within the limits of its jurisdiction, the legal protection which individuals derive from European Union law and to ensure the full effectiveness of that law, disapplying if need be any provision of national legislation contrary to that principle (see, to that effect, Mangold, para 77).
+In the present cases, on the assumptions (contrary to my conclusions), first, that European law recognises an individual right to vote paralleling in substance that recognised in the Strasbourg case law of Hirst (No 2) and Scoppola, and, second, that the view taken by the majority of the Grand Chamber in Hirst (No 2) regarding standing to claim a general declaration were to be transposed into European law, the only relief that could be considered under domestic law would be a generally phrased declaration that the legislative provisions governing eligibility to vote in European Parliamentary and municipal elections in the United Kingdom were inconsistent with European Union law.
+Thereafter, it would be for the United Kingdom Parliament to address the position and make such legislative changes as were considered appropriate.
+But, for reasons paralleling those given in paras 40 42 above, it appears improbable that the Convention rights would, even when viewed through the prism of European Union law, involve or require the granting of declarations in the abstract at the instance of claimants like both Chester and McGeoch, detained in circumstances summarised in para 1 above, from whom the United Kingdom Parliament could legitimately, and it seems clear would, under any amended legislative scheme still withhold the vote.
+I reject the submission that the Supreme Court could or should simply disapply the whole of the legislative prohibition on prisoner voting, in relation to European Parliamentary and municipal elections, thereby making all convicted prisoners eligible to vote pending fresh legislation found to conform with European Union law.
+It is clear from both Hirst (No 2) and Scoppola that, under the principles established by those cases, a ban on eligibility will be justified in respect of a very significant number of convicted prisoners.
+Nor would it have been possible to read the RPA section 3 or EPEA section 8 compatibly with European law; the legislation is entirely clear and it would flatly contradict the evident intention of the United Kingdom, when enacting it, to read into it or to read it as subject to some unspecified scheme or set of qualifications allowing some unspecified set of convicted prisoners to vote under some unspecified conditions and arrangements.
+It would also be impossible for the Supreme Court itself to devise an alternative scheme of voting eligibility that would or might pass muster in a domestic or supra national European Court.
+Equally, the Court could not determine or implement the practical and administrative arrangements that would need to be made to enable any convicted prisoners eligible under any such scheme to have the vote.
+Such matters would be beyond its jurisdiction.
+In the domestic constitutional scheme, any scheme conferring partial eligibility to vote on some convicted prisoners is quintessentially a matter for the United Kingdom Parliament to consider, determine and arrange.
+In the passage quoted in para 72 above, the Court of Justice made clear that it is only within the limits of its jurisdiction that a national court can be expected to provide the legal protection that European Union law requires.
+That being so, the creation of any new scheme must be a matter for the United Kingdom Parliament.
+That does not necessarily conclude this Courts role under European law.
+The principles established in Case C 6/90 Francovich v Italian Republic [1992] IRLR 84 and Joined Cases C 46/93 and C 48/93 Brasserie du Pecheur SA v Federal Republic of Germany and R v Secretary of State for Transport, Ex p Factortame Ltd (No 4) [1996] QB 404 require domestic courts, under certain conditions, to order their State to make good any loss caused by breach of European Union law, even where the breach consists in legislation incompatible with that law.
+After these decisions by the Court of Justice, the principles stated by that Court were examined and applied domestically by the House of Lords in R v Secretary of State, Ex p Factortame Ltd (No 5) [2000] 1 AC 524.
+Neither Chester nor McGeoch has set out, supported with evidence or pursued any claim for damages in the courts below.
+Both now seek to claim damages, still without any supporting evidence, and, if necessary, to have their cases remitted for further determination in this regard.
+I will however put on one side without deciding the question whether either should be given leave to enable them at this late stage to raise any damages claim, and consider the nature and application of the relevant principles, assuming that such claims were to be permitted.
+An important factor in determining whether liability in damages may exist under European law is the width of the discretion available to the legislator: see Ex p Factortame, paras 44 to 46.
+In this respect the Court equated the position of the Community and national legislators (para 47).
+A strict (meaning more limited) approach was taken towards the liability of the Community (or therefore of national legislators) in the exercise of legislative activities.
+This was explained (para 45) as due to two considerations: 45.
+First, even where the legality of measures is subject to judicial review, exercise of the legislative function must not be hindered by the prospect of actions for damages whenever the general interest of the Community requires legislative measures to be adopted which may adversely affect individual interests.
+Secondly, in a legislative context characterized by the exercise of a wide discretion, which is essential for implementing a Community policy, the Community cannot incur liability unless the institution concerned has manifestly and gravely disregarded the limits on the exercise of its powers As the Court went on to point out, the national legislature like the Community institutions does not systematically have a wide discretion when it acts in a field governed by Community law (para 46).
+It depends on the nature of the European law or principle being implemented.
+However, in the context of eligibility to vote, it is clear that national legislatures have a wide discretion.
+Where a wide legislative discretion of this nature exists, three conditions govern the incurring of any liability on account of the legislative choices made by the State pursuant to such discretion.
+These were explained in Ex p Factortame as follows: 51 In such circumstances, Community law confers a right to reparation where three conditions are met: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious, and there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties. 52 First, those conditions satisfy the requirements of the full effectiveness of the rules of Community law and of the effective protection of the rights which those rules confer. 53 Secondly, those conditions correspond in substance to those defined by the Court in relation to Article 215 in its case law on liability of the Community for damage caused to individuals by unlawful legislative measures adopted by its institutions. 55 As to the second condition, as regards both Community liability under Article 215 and Member State liability for breaches of Community law, the decisive test for finding that a breach of Community law is sufficiently serious is whether the Member State or the Community institution concerned manifestly and gravely disregarded the limits on its discretion. 56 The factors which the competent court may take into consideration include the clarity and precision of the rule breached; the measure of discretion left by that rule to the national or Community authorities; whether the infringement and the damage caused was intentional or involuntary; whether any error of law was excusable or inexcusable; the fact that the position taken by a Community institution may have contributed towards the omission, and the adoption or retention of national measures or practices contrary to Community law. 57 On any view, a breach of Community law will clearly be sufficiently serious if it has persisted despite a judgment finding the infringement in question to be established, or a preliminary ruling or settled case law of the Court on the matter from which it is clear that the conduct in question constituted an infringement.
+These principles were reiterated in Case 392/93 R v HM Treasury, Ex p British Telecommunications plc [1996] QB 615, an example of a case where the Court of Justice held that the breach had not involved a manifest and grave disregard of European law, and Case 278/05 Robins v Secretary of State for Work and Pensions [2007] ICR 779, where the Court emphasised the importance of the breadth of the legislative discretion in that case and the fact that the provisions of the relevant directive did not make it possible to establish with any precision the level of pension protection which it required.
+Turning to apply these principles to the present cases, I make the twin assumptions (again contrary to my conclusions) that (a) European Union confers rights to vote on individual citizens of the Union, subject to the United Kingdoms legislative discretion to introduce limitations, but that (b) the present general prohibition on prisoner voting is contrary to principles paralleling those stated by the Strasbourg court in Hirst (No 2) and Scoppola and/or the general European Union principle of equality or non discrimination.
+On those assumptions, the second and third conditions for any personal claim arise for consideration.
+The second condition is that the breach was sufficiently serious.
+This in turn depends, under European law, upon whether Parliament, the relevant United Kingdom authority, can be said manifestly and gravely to have disregarded the limits on its discretion.
+This must be judged taking into consideration the clarity and precision of the rule breached; the measure of discretion left by that rule to the national or Community authorities; whether the infringement and the damage caused was intentional or involuntary; whether any error of law was excusable or inexcusable (para 77 above).
+In relation to voting by convicted prisoners, the United Kingdom legislature enjoyed a wide margin of discretion.
+Further, this is in a context where there has been and remains a considerable lack of certainty about what the parameters of that discretion may be.
+This is evident from a reading of the Strasbourg case law, particularly the two Hirst judgments, the Chamber judgment in Frodl v Austria (2010) 52 EHRR 267 and the Grand Chamber judgment over ruling the Chamber judgment in Scoppola v Italy, in which the European Court of Human Rights has sought to identify the relevant considerations and to apply them to particular facts.
+Accordingly, it is clearly very arguable that this condition is not met.
+I will not however say more about the application of the second condition in this case, in view of one further factor, which I prefer to leave open.
+The test stated in the European authorities postulates some degree of examination of the conduct of the relevant national authority.
+Since the relevant United Kingdom authority is here Parliament in enacting and continuing in force the relevant legislation, an assessment of some of these matters (particularly whether the infringement was intentional or involuntary, excusable or inexcusable) may threaten conflict with the constitutional principle enshrined in the Bill of Rights 1688 that domestic courts in the United Kingdom ought not to impeach or question proceedings in Parliament.
+To avoid this, it may perhaps be necessary to approach a claim for damages in a case like the present on an objective basis, without regard to what has actually happened or been said in Parliament.
+The decision in R v Secretary of State, Ex p Factortame (No 5) [2000] 1 AC 524 does not appear to throw any light on this problem, because there does not seem there to have been any call to consider Parliamentary debates.
+On any view, however, the fact of Parliamentary activity, referred to in Greens and continuing, can no doubt be taken into account.
+The third condition is that there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties.
+In relation to both the second and the third conditions, it must in my opinion be relevant to have regard to the particular position of the present appellants.
+The questions are whether, in refusing them the vote, the United Kingdom has manifestly and gravely disregarded the limits on its discretion and whether they have sustained damage directly caused by the United Kingdoms breach of an obligation owed to give each of them a right to vote.
+In Strasbourg case law, according to the majority in Hirst (No 2), a claimant can complain that the law in general is incompatible with the Convention rights, without showing that it was or would have been incompatible with such rights to deprive him in particular of the vote.
+But to award a convicted prisoner damages without showing that European Union law required him, rather than some other prisoner or prisoners, to have the vote would be positively inconsistent with the conditions stated in Francovich and Ex p Factortame.
+On that basis, I consider that any claim for damages by McGeoch and Chester must on any view fail.
+McGeoch is still serving the punishment part of his sentence resulting from the combination of his life and consecutive fixed term sentence.
+There can, in the light of Scoppola, be no question about the United Kingdoms entitlement to deprive a prisoner in his position of the vote.
+Chester is in his post tariff period of his life sentence, but it is notable that the European Court of Human Rights deliberately refrained from endorsing the original Chamber view or Judge Caflischs concurring minority view (para 40 above) that there is a critical distinction between the tariff and post tariff period.
+Further, in Scoppola, the Strasbourg court accepted that disenfranchisement could continue for life in the case of sentences of five years or more.
+This was subject only to the right, three years after release, to apply for rehabilitation, which would be granted upon his displaying consistent and genuine good conduct: see para 22 above.
+The requirement to display good conduct in order to regain voting rights was thus regarded as not only relevant, but acceptable.
+The Strasbourg court accepted as a legitimate aim enhancing civic responsibility and respect for the rule of law.
+Continuing detention for a period lasting so long as necessary for the protection of the public (paras 30 and 40 above) can be no less relevant and acceptable as a criterion for continuing deprivation of the right to vote during that period.
+The underlying consideration, that the offender is not fully rehabilitated or ready to participate responsibly in the countrys democratic life, is the same in each case.
+This is underlined by the passage from the Grand Chambers recent decision in Vinter quoted in para 41 above.
+Conclusions
+My conclusions on the issues argued on this appeal are summarised in para 4 above.
+It remains only to consider whether the resolution of this appeal necessitates a reference to the European Court of Justice.
+This depends upon whether it depends upon the determination of any question of European law which is open to reasonable doubt under the principles stated in Case 283/81 CILFIT Srl v Ministry of Health [1982] ECR 3415 and recently discussed in this Court in X v Mid Sussex Citizens Advice Bureau [2012] UKSC 59, [2013] ICR 249.
+In my opinion, the conclusions of European law reached in paras 45, 58, 59 and 63 64 are acte clair, and they are by themselves sufficient to resolve the appeals.
+Were it necessary for the decision of these appeals, I would also regard the conclusions in para 70 as acte clair.
+The further conclusions (again not necessary for the resolution of these appeals) reached in other paras are matters for this Court to determine, applying established principles of European law where relevant.
+In the circumstances, I do not consider that any reference to the Court of Justice is called for.
+It follows that, in my opinion, both appeals should be dismissed.
+LADY HALE (with whom Lord Hope and Lord Kerr agree)
+Prisoners voting is an emotive subject.
+Some people feel very strongly that prisoners should not be allowed to vote.
+And public opinion polls indicate that most people share that view.
+A YouGov poll in November 2012 found that 63% of respondents said that no prisoners should be allowed to vote, 15% said that those serving sentences of less than six months should be allowed to vote, 9% said that those serving less than four years should be allowed to vote, and 8% said that all prisoners should be allowed to vote.
+A YouGov poll in January 2011 which asked the same questions produced respective figures of 69%, 6%, 3% and 8%.
+This suggests that public opinion may be becoming more sympathetic to the idea, with 32% now favouring some relaxation in the present law, but there is still a substantial majority against it.
+It is not surprising, therefore, that in February 2011 elected Parliamentarians also voted overwhelmingly against any relaxation of the present law.
+In such circumstances, it is incumbent upon the courts to tread delicately.
+As I shall explain, in my view it is now clear that the courts should not entertain a human rights claim on behalf of Mr Chester or, indeed, of Mr McGeoch had he made one.
+Both are serving sentences of life imprisonment for murder.
+Mr Chester was sentenced to life imprisonment for the murder of his niece, with a tariff of 20 years which expired in October 1997.
+The Parole Board has not yet found him suitable for release on licence.
+Mr McGeoch was also sentenced to life imprisonment for murder, with a tariff of 13 years which expired in October 2011; but he has had further convictions for serious offences committed while in prison and is currently serving seven and a half years for violently escaping from prison in 2008.
+I do not consider that the human rights of either were violated by the Electoral Registration Officers refusal to register them on the electoral roll.
+Their claims under European Union law are another story, because they raise novel arguments which require to be resolved.
+On those claims I have nothing to add to the judgment of Lord Mance, with which I agree.
+Of course, in any modern democracy, the views of the public and Parliamentarians cannot be the end of the story.
+Democracy is about more than respecting the views of the majority.
+It is also about safeguarding the rights of minorities, including unpopular minorities.
+Democracy values everyone equally even if the majority does not: Ghaidan v Godin Mendoza [2004] 2 AC 557, para 132.
+It follows that one of the essential roles of the courts in a democracy is to protect those rights.
+It was for that reason that Lord Bingham took issue with the argument of a previous Attorney General, Lord Goldsmith, in A v Secretary of State for the Home Department [2005] 2 AC 68, para 42: I do not . accept the distinction which he drew between democratic institutions and the courts.
+It is of course true that the judges in this country are not elected and are not answerable to Parliament.
+But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.
+The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision making as in some way undemocratic.
+The present Attorney General has wisely not suggested any such thing.
+He recognises that it is the courts task to protect the rights of citizens and others within the jurisdiction of the United Kingdom in the ways which Parliament has laid down for us in the Human Rights Act 1998.
+But insofar as he implied that elected Parliamentarians are uniquely qualified to determine what the franchise should be, he cannot be right.
+If the current franchise unjustifiably excludes certain people from voting, it is the courts duty to say so and to give them whatever remedy is appropriate.
+More fundamentally, Parliamentarians derive their authority and legitimacy from those who elected them, in other words from the current franchise, and it is to those electors that they are accountable.
+They have no such relationship with the disenfranchised.
+Indeed, in some situations, they may have a vested interest in keeping the franchise as it is.
+To take an obvious example, we would not regard a Parliament elected by an electorate consisting only of white, heterosexual men as uniquely qualified to decide whether women or African Caribbeans or homosexuals should be allowed to vote.
+If there is a Constitution, or a Bill of Rights, or even a Human Rights Act, which guarantees equal treatment in the enjoyment of its fundamental rights, including the right to vote, it would be the task of the courts, as guardians of those rights, to declare the unjustified exclusion unconstitutional.
+Given that, by definition, Parliamentarians do not represent the disenfranchised, the usual respect which the courts accord to a recent and carefully considered balancing of individual rights and community interests (as, for example, in R (Countryside Alliance) v Attorney General [2007] UKHL 52, [2008] AC 719 and R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15, [2008] AC 1312, both upheld in Strasbourg for that very reason) may not be appropriate.
+Of course, the exclusion of prisoners from voting is of a different order from the exclusion of women, African Caribbeans or homosexuals.
+It is difficult to see how any elected politician would have a vested interest in excluding them (save just possibly from local elections in places where there are very large prisons).
+The arguments for and against their exclusion are quite finely balanced.
+On the one hand, unlike women, African Caribbeans and homosexuals, prisoners share a characteristic which many think relevant to whether or not they should be allowed to vote: they have all committed an offence deemed serious enough to justify their removal from society for at least a while and in some cases indefinitely.
+While clearly this does not mean that all their other rights are forfeited, why should they not for the same time forfeit their right to take part in the machinery of democracy?
+Hence I see the logic of the Attorney Generals argument, that by deciding that an offence is so serious that it merits a custodial penalty, the court is also deciding that the offence merits exclusion from the franchise for the time being.
+The custody threshold means that the exclusion, far from being arbitrary and disproportionate, is tailored to the justice of the individual case.
+One problem with that argument is that it does not explain the purpose of the exclusion.
+Any restriction of fundamental rights has to be a proportionate means of pursuing a legitimate aim.
+Is it simply an additional punishment, a further mark of societys disapproval of the criminal offence? Or is it rather to encourage a sense of civic responsibility and respect for democratic institutions? If so, it could well be argued that this is more likely to be achieved by retaining the vote, as a badge of continuing citizenship, to encourage civic responsibility and reintegration in civil society in due course.
+This is indeed, as Laws LJ observed in the Court of Appeal, a matter on which thoughtful people can hold diametrically opposing views.
+A more concrete objection to the Attorney Generals argument is that the custody threshold in this country has never been particularly high.
+As Lord Bingham of Cornhill CJ observed in R v Howells [1999] 1 WLR 307, 310, deciding when an offence is so serious that only a custodial sentence can be justified is one of the most elusive problems of criminal sentencing.
+Between 1992 and 2002, the custodial sentencing rate rose from 5% to 15% in the magistrates courts and from 44% to 63% in the Crown Court (for an overview of sentencing trends in the last 20 years, see Ministry of Justice, The Story of the Prison Population 1993 2012, 2013).
+Some of the rise may be accounted for by the greater seriousness of the offences coming before the courts, but this cannot be the whole explanation.
+There are many people in prison who have not committed very serious crimes, but for whom community punishments are not available, or who have committed minor crimes so frequently that the courts have run out of alternatives.
+Also, the threshold has varied over time in accordance with changes in penal policy which have nothing to do with electoral policy: what, for example, are we to make of the ups and downs in the legislative popularity of suspended sentences? Exactly the same crime may attract an immediate custodial sentence and disenfranchisement at one time or a suspended sentence without disenfranchisement at another.
+Moreover, the custody threshold has traditionally varied as between different parts of the United Kingdom, with a significantly greater use of imprisonment in Scotland than in England and Wales (although this is diminishing).
+The sentencing regimes are different in England and Wales, Scotland and Northern Ireland, but the exclusion from voting is the same.
+All of this suggests an element of arbitrariness in selecting the custody threshold as a unique indicator of offending so serious as to justify exclusion from the democratic process.
+To this may be added the random impact of happening to be in prison on polling day and the various reasons why someone who has been sentenced to a period of imprisonment may not in fact be in prison on that day.
+He may, as Lord Clarke points out, be on bail pending an appeal; or he may be released early under electronic monitoring.
+Then there is the situation of mental patients.
+All those who are detained in hospital as a result of an order made in a criminal court, apart from those on remand, are also disenfranchised (Representation of the People Act 1983, section 3A(1),(2)).
+This includes patients who have been found unfit to plead or not guilty by reason of mental disorder, whose culpability may be very different from that of convicted prisoners.
+There is no equivalent of the custody threshold (as long as the offence is punishable with imprisonment) and no correlation between the seriousness of the offence and the length of time that the patient will be detained in hospital.
+I mention these additional matters to explain why, in common with Lord Clarke, I have some sympathy for the view of the Strasbourg court that our present law is arbitrary and indiscriminate.
+But I acknowledge how difficult it would be to devise any alternative scheme which would not also have some element of arbitrariness about it.
+The Strasbourg court, having stepped back from the suggestion in Frodl v Austria (2010) 52 EHRR 267 that exclusion from the franchise requires a judicial decision in every case and approved the Italian law in Scoppola v Italy (No 3) (2012) 56 EHRR 663, must be taken to have accepted this.
+However, I have no sympathy at all for either of these appellants.
+I cannot envisage any law which the United Kingdom Parliament might eventually pass on this subject which would grant either of them the right to vote.
+In Hirst v United Kingdom (No 2) (2005) 42 EHRR 849, the Strasbourg court declined to conclude that applying the ban to post tariff life prisoners would necessarily be compatible with article 3 of the First Protocol.
+But it seems clear from the decision in Scoppola v Italy (No 3) that Strasbourg would now uphold a scheme which deprived murderers sentenced to life imprisonment of the right to vote, certainly while they remained in prison, and probably even after they were released on licence, as long as there was then a power of review.
+Hence I cannot see how Mr Chester can sensibly have a claim to a remedy under the Human Rights Act.
+It may be, as Lord Mance has concluded, that he qualifies as a victim for the purpose of section 7 of the Human Rights Act.
+But this is only in the sense that, as the majority of the Grand Chamber in Hirst (No 2) held, he was directly affected by the law in question.
+This justified that court, in the majority view, examining the compatibility of the law with the Convention, irrespective of whether he might justifiably have been deprived of the vote under some other law.
+A strong minority, including the then President, Judge Wildhaber, and his successor, Judge Costa, pointed out that this was not the usual practice of the court (para OIII8): The Court has consistently held in its case law that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention.
+It is, in our opinion, difficult to see in what circumstances restrictions on voting rights would be acceptable, if not in the case of persons sentenced to life imprisonment.
+Generally speaking, the Court's judgment concentrates above all on finding the British legislation incompatible with the Convention in abstracto.
+We regret that despite this focus it gives the states little or no guidance as to what would be solutions compatible with the Convention.
+Since restrictions on the right to vote continue to be compatible, it would seem obvious that the deprivation of the right to vote for the most serious offences such as murder or manslaughter, is not excluded in the future.
+Either the majority are of the view that deprivations for the post tariff period are excluded, or else they think that a judge has to order such deprivations in each individual case.
+We think that it would have been desirable to indicate the correct answer.
+In other words, it would have been in accordance with the consistent practice of the court for the majority to indicate in precisely what way Mr Hirsts rights had been violated by the law in question.
+It seems to me that the courts of this country should adopt that sensible practice when considering the application of the various remedies provided by the Human Rights Act.
+In this case, there can be no question of Mr Chester having a cause of action under section 6(1) of the Human Rights Act.
+The Electoral Registration Officer for Wakefield refused his application for inclusion on the electoral roll.
+But in my view that could not have been incompatible with his Convention rights, because (at least following Scoppola v Italy) the Convention does not give him the right to vote.
+But even if it was incompatible, the public authority could not have acted differently, because of the provisions of the Representation of the People Act, and so by virtue of section 6(2)(a) the act was not unlawful.
+Nor is there any question of our reading and giving effect to the Act in a way which is compatible with the Convention rights, in accordance with our duty under section 3(1).
+No one has suggested that it would be possible to do so in a case such as this.
+It is obvious that any incompatibility can only be cured by legislation and the courts cannot legislate.
+But even if we could, we would only seek to read and give effect to the statute in a way which was compatible with the rights of the individual litigant before us.
+As, in my view at least, the ban on voting is not incompatible with the rights of this particular litigant, a reading which was compatible with the rights of a completely different litigant would do him no good.
+That leaves the possibility of a declaration of incompatibility under section 4(2) of the Human Rights Act.
+This applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
+This does appear to leave open the possibility of a declaration in abstracto, irrespective of whether the provision in question is incompatible with the rights of the individual litigant.
+There may be occasions when that would be appropriate.
+But in my view the court should be extremely slow to make a declaration of incompatibility at the instance of an individual litigant with whose own rights the provision in question is not incompatible.
+Any other approach is to invite a multitude of unmeritorious claims.
+It is principally for that reason that I would decline to make a declaration of incompatibility on the application of either Mr Chester or (had he made one) Mr McGeoch.
+Indeed, in my view the courts should not entertain such claims.
+It is otherwise, of course, in borderline cases.
+In those circumstances it seems to me unnecessary to express a view on whether we should follow or depart from the substance of the decision in Hirst v
+LORD CLARKE
+I agree that these appeals should be disposed of as proposed by Lord Mance and Lord Sumption.
+I also agree with the reasoning of both Lord Mance and Lord Sumption, subject to this.
+I would be less critical than Lord Sumption of the decisions of the European Court of Human Rights to which they refer.
+The reasoning of the Strasbourg Court has very recently been summarised in Anchugov and Gladkov v Russia (Application Nos 11157/04 and 15162/05), 4 July 2013, at paras 93 100.
+In particular, in para 100 it distinguished between Hirst v United Kingdom (No 2) (2005) 42 EHRR 849 and Scoppola v Italy (No 3) (2012) 56 EHRR 663 in this way: 100.
+The principles set out in the Hirst (No 2) case were later reaffirmed in the Scoppola (No 3) [GC] judgment.
+The Court reiterated, in particular, that when disenfranchisement affected a group of people generally, automatically and indiscriminately, based solely on the fact that they are serving a prison sentence, irrespective of the length of the sentence and irrespective of the nature or gravity of their offence and their individual circumstances, it was not compatible with Article 3 of Protocol No 1 (see Scoppola (No 3) [GC], cited above, para 96).
+The Court found no violation of that Convention provision in the particular circumstances of this latter case however, having distinguished it from the Hirst (No 2) case.
+It observed that in Italy disenfranchisement was applied only in respect of certain offences against the State or the judicial system, or offences punishable by a term of imprisonment of three years or more, that is, those which the courts considered to warrant a particularly harsh sentence.
+The Court thus considered that the legal provisions in Italy defining the circumstances in which individuals may be deprived of the right to vote show[ed] the legislatures concern to adjust the application of the measure to the particular circumstances of [each] case, taking into account such factors as the gravity of the offence committed and the conduct of the offender (ibid, para 106).
+As a result, the Italian system could not be said to have a general automatic and indiscriminate character, and therefore the Italian authorities had not overstepped the margin of appreciation afforded to them in that sphere (ibid, paras 108 and 110).
+On the facts the Court held at para 101 that the position in Russia was very similar to that in Hirst (No 2), namely that the applicants were stripped of their right to vote by virtue of a provision of the Russian Constitution which applied to all persons convicted and serving a custodial sentence, irrespective of the length of their sentence and of the nature or gravity of their offence and their individual circumstances.
+The Court compared Hirst (No 2) at para 82 with Scoppola (No 3) at paras 105 110.
+The Court said at para 102 that it was prepared to accept that the relevant measure pursued the aims of enhancing civic responsibility and the respect for the rule of law and ensuring the proper functioning and preservation of civil society and the democratic regime and that those aims could not, as such, be excluded as untenable or incompatible with A3P1.
+The essence of the Courts decision is set out in para 103.
+It rejected the Governments arguments on the issue of proportionality, reiterating the point made in para 82 of Hirst (No 2), that, although the margin of appreciation is wide, it is not all embracing and added: the right to vote is not a privilege; in the twenty first century, the presumption in a democratic State must be in favour of inclusion and universal suffrage has become the basic principle.
+In the light of modern day penal policy and of current human rights standards, valid and convincing reasons should be put forward for the continued justification of maintaining such a general restriction on the right of prisoners to vote as that provided for in Article 32(3) of the Russian Constitution (ibid, para 79).
+Further, at para 105 the Court emphasised the fact that the Russian constitution imposed a blanket ban on all those imprisoned, from two months, which is the minimum period of imprisonment following conviction in Russia, to life and from relatively minor offences to offences of the utmost seriousness.
+At para 106 it stressed that, as in the United Kingdom, there was no evidence that, when deciding whether to impose a custodial sentence, the court should take into account the fact that the sentence would involve disenfranchisement, so that there was no direct link between the facts of a particular case and the loss of the right to vote.
+It recognised in para 107 that removal of the right to vote without an ad hoc judicial decision does not of itself give rise to a violation but, in response to an argument that the adoption of the Russian constitution was preceded by extensive public debate, it observed that the Government had submitted no relevant materials to support it.
+In doing so, it expressly followed an almost identical conclusion in para 79 of Hirst (No 2).
+As I see it, the thrust of the conclusions in the Strasbourg cases is that a blanket ban is disproportionate and indiscriminate, at any rate without detailed analysis of the problem because, as it is put at para 82 of Hirst (No 2), the ban applies automatically to all prisoners irrespective of the nature and gravity of the relevant offence or the individual circumstances of the particular offender.
+It thus applies to those sentenced to very short sentences and operates in an arbitrary way for two reasons.
+First, it applies in the same way to a person sentenced to 28 days or 28 years.
+Yet there is clearly an enormous gulf in terms of culpability between those sentenced to 28 days for, say, persistent shoplifting and those sentenced to 28 years for a very serious offence.
+Secondly, whether a person loses the right to vote depends upon the chance that the relevant person happens to be in prison on a particular day, by comparison perhaps with a co defendant who received an identical sentence but is on bail pending appeal.
+Moreover, it is difficult to see how it can be proportionate to deprive a person of a vote which is relevant to the governance of the state for a period of five years in circumstances where that person may be in prison for no more than 14 days.
+I appreciate that, wherever the line may be drawn, there may be an element of arbitrariness as to the choice and effect of a particular line.
+But there seems to me to be much to be said for the Strasbourg Courts approach to a blanket ban, at any rate absent detailed consideration of the pros and cons of such a ban.
+However that may be, I agree that this Court should follow the now settled jurisprudence in the Strasbourg Court for the reasons given by Lord Mance and Lord Sumption.
+Since writing the above, I have read the judgment of Baroness Hale in draft and would simply like to add that I agree with it.
+LORD SUMPTION (with whom Lord Hughes agrees)
+I agree with the orders proposed by Lord Mance, for all of the reasons that he gives in his judgment as well as those given in the judgment of Lady Hale.
+I wish to add my own observations on one question only, namely whether we should apply the principles stated by the European Court of Human Rights in Hirst (No 2) and Scoppola.
+It is an issue which raises in an acute form the potential conflict between the interpretation of the European Convention on Human Rights by the European Court of Human Rights and the processes by which alone laws are made in a democracy.
+The conflict arises from the requirement of the European Court of Human Rights that the United Kingdom should amend the Representation of the People Act 1983 so as to give at least some convicted prisoners the right to vote in national and local elections, something for which there is at present only negligible support in the House of Commons and very little among the public at large.
+If democracy is viewed as a system of decision making by those answerable to the electorate (as opposed to a system of values thought to be characteristic of democracies), this is bound to be a matter of real concern.
+Of course, as Lady Hale has pointed out, it does not follow that a democracy can properly do whatever it likes, simply by virtue of the democratic mandate for its acts.
+The protection of minorities is a necessary concern of any democratic constitution.
+But the present issue has nothing whatever to do with the protection of minorities.
+Prisoners belong to a minority only in the banal and legally irrelevant sense that most people do not do the things which warrant imprisonment by due process of law.
+In any democracy, the franchise will be determined by domestic laws which will define those entitled to vote in more or less inclusive terms.
+The right to vote may be based on citizenship or residence, or a combination of the two.
+There will invariably be a minimum voting age and may be other conditions of eligibility, such as mental capacity.
+In the United Kingdom, the right to vote at parliamentary and local government elections is enjoyed by Commonwealth citizens and citizens of the Republic of Ireland aged over 18, who are on the electoral roll, and not subject to any legal incapacity to vote.
+Inclusion on the electoral roll depends on current (or in some cases recent) residence.
+The only legal incapacity of any significance relates to convicted prisoners.
+Section 3(1) of the Representation of the People Act 1983 provides that convicted prisoners are legally incapable of voting at any parliamentary or local government election.
+There are limited exceptions for those committed for contempt of court or detained for default of compliance with another sentence (such as a fine).
+Section 8(1) and (2) of the European Parliamentary Elections Act 2002 apply the same rules of eligibility to elections for the European Parliament.
+These provisions are entirely clear.
+There is no way in which they can be read down so as to allow voting rights to any category of convicted prisoners other than those falling within the specified exceptions.
+The exclusion of convicted prisoners from the franchise is not a universal principle among mature democracies, but neither is it uncommon.
+Information provided by the Foreign Office in answer to a parliamentary question (updated to July 2012) indicates that at least 18 European countries including Denmark, Finland, Ireland, Spain, Sweden and Switzerland have no restrictions on voting by prisoners.
+Bulgaria, Estonia, Georgia, Hungary, Japan, Liechtenstein, Russia and the United States ban all convicted prisoners from voting, as do two of the seven Australian states.
+In some countries such as France disenfranchisement is reserved for those convicted of certain particularly serious offences, and in others such as Belgium for cases in which the prisoner is sentenced to a period of imprisonment exceeding a given threshold.
+In France, the Netherlands and Belgium disenfranchisement is an additional penalty imposed as a matter of judicial discretion.
+In other countries, such as Germany and Italy, it is automatic in specified cases.
+In Belgium, Italy and some jurisdictions of the United States, the loss of voting rights may continue even after a prisoners release.
+It is apparent that this is not a question on which there is any consensus.
+From a prisoners point of view the loss of the right to vote is likely to be a very minor deprivation by comparison with the loss of liberty.
+There are no doubt prisoners whose interest in public affairs or strong views on particular issues are such that their disenfranchisement represents a serious loss, just as there are prisoners (probably more numerous) whose enthusiasm for active sports makes imprisonment a special hardship.
+The severity of a sentence of imprisonment for the convicted person will always vary with a wide variety of factors whose impact on him or her will inevitably be arbitrary to some degree.
+It has been said, for example, that disenfranchisement may bear hardly on someone sentenced to, say, a short period of imprisonment which happens to coincide with a general election.
+For some prisoners, this will no doubt be true.
+But I decline to regard it as any more significant than the fact that it may coincide with a special anniversary, a long anticipated holiday or the only period of fine weather all summer.
+Article 3 of the First Protocol to the Human Rights Convention provides that the contracting parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.
+In 2005, the Grand Chamber of the European Court of Human Rights held in Hirst v United Kingdom (No 2) (2005) 42 EHRR 849 that a blanket restriction on voting by all prisoners violated article 3 of the First Protocol.
+In Greens and MT v United Kingdom (2010) 53 EHRR 710, the European Court of Human Rights delivered a pilot judgment on a large number of petitions by convicted prisoners which sought damages for the denial of their rights under article 3 of the First Protocol, consequent upon the decision in Hirst.
+The court refused to make an award of damages, but directed that the United Kingdom should bring forward, within six months of the date upon which the present judgment becomes final, legislative proposals intended to amend the 1983 Act and, if appropriate, the 2002 Act in a manner which is Convention compliant and effectively stayed further proceedings on pending petitions of the same kind until the expiry of that period.
+The deadline was subsequently extended by the European Court until six months after the judgment of the Grand Court in another case, Scoppola v Italy (No 3) (2012) 56 EHRR 663, in which the United Kingdom government proposed to intervene to make submissions about the correctness of Hirst.
+However, the judgment in that case, which was delivered on 22 May 2012, reaffirmed both the reasoning and the decision in Hirst.
+The deadline imposed by the Strasbourg Court expired in November 2012.
+In December 2006, in the light of the decision in Hirst, the Government published a consultation paper setting out two alternative proposals for amending section 3 of the Representation of the People Act.
+One was to enfranchise prisoners sentenced to less than a specified term, which would be low. , such as one year in prison.
+The other was to allow sentencers a discretion on whether the franchise should be withdrawn in the particular case.
+A further consultation paper was published in April 2009 summarising responses to the first paper and seeking views on the approach to be adopted.
+The Government indicated its own preference for an automatic restriction of the franchise based on the seriousness of the offence, as reflected in the length of the sentence.
+On 20 December 2010, after the decision of the European Court of Human Rights in Greens and MT, the Government announced that it would propose to Parliament that offenders sentenced to a term of imprisonment of less than four years would have the right to vote in parliamentary and European Parliament elections, unless the sentencing judge directed otherwise.
+Subsequently, the question of prisoners voting rights was debated twice.
+There was a Westminster Hall adjournment debate on 10 January 2011, at which many members of the House of Commons expressed strong opposition to enfranchising any prisoners.
+A month later, on 11 February 2011, there was an all day debate on the floor of the House of Commons on a motion put forward jointly by senior backbench MPs from both sides of the House, that legislative decisions of this nature should be a matter for democratically elected lawmakers; and supports the current situation in which no sentenced prisoner is able to vote except those imprisoned for contempt, default or on remand.
+This motion was carried by 234 votes to 22, both front benches abstaining.
+On 22 November 2012 the Government published the Voting Eligibility (Prisoners) Draft Bill (Cm 8499), setting out three options, (a) a ban on voting by prisoners sentenced to four years imprisonment or more, (b) a ban for prisoners sentenced to more than six months imprisonment, or (c) a general ban, i.e. a restatement of the present position.
+The explanatory memorandum accompanying the draft Bill pointed out that option (c) could not be regarded as compatible with the Convention.
+The draft Bill is currently being considered by a joint Select Committee of both Houses.
+For the moment, however, the only reasonable conclusion that can be drawn from this history is that there is no democratic mandate for the enfranchisement of convicted prisoners.
+It is an international obligation of the United Kingdom under article 46.1 of the Convention to abide by the decisions of the European Court of Human Rights in any case to which it is a party.
+This obligation is in terms absolute.
+The remainder of article 46 contains provisions for its collective enforcement by the institutions of the Council of Europe.
+Many states have written constitutions which give automatic effect in domestic law to treaties to which they are party.
+Constitutional provisions of this kind are generally accompanied by provisions giving the legislature a role in the ratification of treaties.
+But the making of treaties in the United Kingdom is an exercise of the royal prerogative.
+There was no legal requirement for parliamentary scrutiny until the enactment of Part 2 of the Constitutional Reform and Governance Act 2010, although pursuant to an undertaking given to Parliament in April 1924 treaties were in practice laid before Parliament and there was a recognised constitutional convention (the so called Ponsonby Rule) that this should be done.
+The result of the constitutional status of treaties in the United Kingdom is that they are not a source of rights or obligations in domestic law unless effect is given to them by statute: R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696, 747 748 (Lord Bridge of Harwich), 762 (Lord Ackner); R v Lyons [2003] 1 AC 976; In re McKerr [2004] 1 WLR 807, para 25 (Lord Nicholls of Birkenhead), para 48 (Lord Steyn), para 63 (Lord Hoffmann), para 80 (Lord Rodger of Earlsferry) and para 90 (Lord Brown of Eaton under Heywood).
+The Human Rights Act 1998 might have given direct legal effect to interpretations of the Human Rights Convention by the Strasbourg Court, or required the executive to give effect to them by statutory instrument.
+Both techniques were employed in relation to EU law by the European Communities Act 1972.
+But, as is well known, its drafting was a compromise designed to make the incorporation of the Convention into English law compatible with the sovereignty of Parliament.
+Neither of these techniques was therefore adopted.
+Under section 10 of and Schedule 2 to the Act, the Crown has a power but not a duty to amend legislation by order so as to conform with the Convention where there are compelling reasons for doing so, but this is subject to prior parliamentary approval under the positive resolution procedure (there are special provisions in urgent cases for an order to be made with provisional effect subject to such a resolution being passed).
+It follows that the interpretation of the Convention by the Strasbourg Court takes effect in English law only by decision of the English courts.
+Section 2(1) of the Act provides that a United Kingdom court determining a question which has arisen in connection with a Convention right must take into account any judgment, decision or declaration of the European Court of Human Rights.
+For this purpose Convention rights are those set out in those of its provisions to which effect is given by the Act, i.e. articles 2 to 12 and 14 of the Convention, articles 1 to 3 of the First Protocol and article 1 of the Thirteenth Protocol: see section 1(1) and (2).
+Whatever may be meant by taking into account a decision of the Strasbourg Court, it is clearly less than an absolute obligation.
+The international law obligation of the United Kingdom under article 46.1 of the Convention goes further than section 2(1) of the Act, but it is not one of the provisions to which the Act gives effect.
+In the ordinary use of language, to take into account a decision of the European Court of Human Rights means no more than to consider it, which is consistent with rejecting it as wrong.
+However, this is not an approach that a United Kingdom court can adopt, save in altogether exceptional cases.
+The courts have for many years interpreted statutes and developed the common law so as to achieve consistency between the domestic law of the United Kingdom and its international obligations, so far as they are free to do so.
+In enacting the Human Rights Act 1998, Parliament must be taken to have been aware that effect would be given to the Act in accordance with this long standing principle.
+A decision of the European Court of Human Rights is more than an opinion about the meaning of the Convention.
+It is an adjudication by the tribunal which the United Kingdom has by treaty agreed should give definitive rulings on the subject.
+The courts are therefore bound to treat them as the authoritative expositions of the Convention which the Convention intends them to be, unless it is apparent that it has misunderstood or overlooked some significant feature of English law or practice which may, when properly explained, lead to the decision being reviewed by the Strasbourg Court.
+In R v Horncastle [2010] 2 AC 373 at para 11, Lord Phillips of Worth Matravers, with the agreement of the rest of this court, rejected the submission that it should hold itself to be bound by a clear statement of principle of the European Court on the precise issue that was before it: The requirement to take into account the Strasbourg jurisprudence will normally result in the domestic court applying principles that are clearly established by the Strasbourg court.
+There will, however, be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process.
+In such circumstances it is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for adopting this course.
+This is likely to give the Strasbourg court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between the domestic court and the Strasbourg court.
+In Manchester City Council v Pinnock (Nos 1 and 2) [2011] 2 AC 104, para 48, Lord Neuberger MR, again with the agreement of the whole court, expanded on this statement: This court is not bound to follow every decision of the European court.
+Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the court to engage in the constructive dialogue with the European court which is of value to the development of Convention law: see e.g. R v Horncastle [2010] 2 AC 373.
+Of course, we should usually follow a clear and constant line of decisions by the European court: R (Ullah) v Special Adjudicator [2004] 2 AC 323.
+But we are not actually bound to do so or (in theory, at least) to follow a decision of the Grand Chamber.
+As Lord Mance pointed out in Doherty v Birmingham City Council [2009] AC 367, para 126, section 2 of the 1998 Act requires our courts to take into account European court decisions, not necessarily to follow them.
+Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this court not to follow that line.
+It follows that the exceptionally delicate issues presently before the court cannot be resolved by summarily applying the decisions of the European Court of Human Rights in Hirst and Scoppola.
+It is necessary to consider the basis on which the Strasbourg Court approached the relevant features of our domestic law.
+What is the rationale of the statutory rule excluding convicted prisoners from the franchise? In his Second Treatise of Government (1690), John Locke considered that because (as he saw it) all social obligations were ultimately founded upon implicit contract, a criminal, having repudiated that contract, had no rights.
+He had repudiated the collective security which was the purpose of the social contract and returned to the pre existing state of nature in which force was the only law.
+It followed, Locke thought, that he may be destroyed as a lion or tyger, one of those wild savage beasts, with whom men can have no society nor security.
+The same view was taken by others who identified the social contract as the foundation of the state, including Thomas Hobbes and Jean Jacques Rousseau.
+It is tempting to regard the present British rule about prisoners voting rights as a distant reflexion of this view, and plenty of commentators have succumbed to the temptation.
+But like most rhetoric, this is misleading.
+The disenfranchisement of convicted prisoners is not and never has been a form of outlawry, or civil death (the phrase sometimes used to describe the current state of the law on prisoners voting rights).
+On the contrary, until the 1960s, it was mainly the incidental consequence of other rules of law.
+In the first place, until 1870, convicted felons automatically suffered the confiscation of their real property, as a result of which they could not meet the property qualification which at that time was part of United Kingdom electoral law.
+The Forfeiture Act 1870 abolished the rule of confiscation.
+But section 2 partially preserved its effect on the franchise by providing that those sentenced for treason or felony to a period of imprisonment exceeding one year could not vote in parliamentary elections until they had served their sentence.
+This remained the position until the Criminal Law Act 1967 abolished the distinction between felonies and misdemeanours and amended section 2 of the Act of 1870 so that it applied only to those convicted of treason.
+Secondly, section 41(5) of the Representation of the People Act 1918 provided that an inmate in any prison, lunatic asylum, workhouse, poorhouse, or any other similar institution was not to be treated as resident there.
+This had the unintended effect of excluding from registration not only convicted prisoners, but prisoners on remand, an anomaly which was not corrected until the Representation of the People Act 2000 allowed remand prisoners to be treated as residing in the place where they were in custody.
+Thirdly, even those prisoners who before 1969 were eligible to vote were generally unable in practice to do so because of the absence of the necessary administrative arrangements.
+Except in the case of servicemen, postal voting was not introduced until the Representation of the People Act 1948, and was not available generally until the Representation of the People Act 2000.
+The modern law on this subject can be said to date from the Speakers Conference on Electoral Reform, which sat from 1965 to 1968 and issued its final report in February 1968 (Cmnd 3550).
+The conference was a non partisan body drawn from all parties in the House of Commons and meeting under the chairmanship of the Speaker.
+It gave systematic consideration to all aspects of electoral law including the franchise and, apparently for the first time, the question of prisoners voting rights.
+Only its conclusions, not its reasons, were published, but the final report records that it considered evidence and documentation from many sources.
+It unanimously recommended that all convicted prisoners should be ineligible to vote.
+This recommendation was accepted, and effect was given to it by section 3 of the Representation of the People Act 1969.
+The rationale of the exclusion of convicted prisoners from the franchise is as complex as the rationale for imprisonment itself.
+Section 142(1) of the Criminal Justice Act 2003 provides: Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing (a) (b) (c) (d) the punishment of offenders, the reduction of crime (including its reduction by deterrence), the reform and rehabilitation of offenders, the protection of the public, and the making of reparation by offenders to persons affected by (e) their offences.
+All of these factors, except in the earlier period for (e), have been features of sentencing policy for very many years.
+For my part, I doubt whether the disenfranchisement of convicted prisoners can realistically be regarded as an additional punishment or a deterrent, and it may at least arguably be said to work against the reform and rehabilitation of the offender.
+But in my opinion, it has a more fundamental rationale.
+All criminal law, and penal policy in particular, has an important demonstrative function, which underlies all five of the statutory sentencing factors.
+The sentencing of offenders, and imprisonment more than any other sentence, is a reassertion of the rule of law and of the fundamental collective values of society which the convicted person has violated.
+This does not mean that the offender is disenfranchised because he is unpopular.
+Nor does it mean that he is regarded as having lost all civil rights or all claims against society, which is why the expression civil death is inappropriate.
+The present rule simply reflects the fact that imprisonment is more than a mere deprivation of liberty.
+It is a temporary reclusion of the prisoner from society, which carries with it the loss of the right to participate in societys public, collective processes.
+Similar principles appear to underlie the exclusion of convicted offenders from the franchise in the many other jurisdictions which practise it, whether on an automatic or a discretionary basis, and in particular those in which the suspension or abrogation of voting rights may be imposed independently of a prison sentence or continue after a term of imprisonment has been served.
+Fundamental to this approach, and to the automatic character of the exclusion of convicted prisoners from the franchise is the principle that sentences of imprisonment are imposed only for the more serious offences.
+This has always been a central feature of sentencing policy.
+Currently, section 152 of the Criminal Justice Act 2003, repeating previous statutory provisions and the long standing practice of the Court of Appeal (Criminal Division) provides: (2) The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence.
+The only exceptions relate either to a very few grave offences where the sentence is prescribed (such as murder, some firearms offences, repeated violence or Class A drug trafficking) or to a separate sentencing regime for dangerous repeat offenders.
+The section also provides that it does not apply in cases where the offender has refused to accept or comply with the conditions on which some lesser sentence would have been imposed.
+These principles are broadly reflected in the composition of the prison population.
+As Lord Mance has pointed out, only 8 per cent of persons convicted of an offence in England and 15 per cent in Scotland are sentenced to imprisonment.
+A statistical breakdown of the prison population as at 30 September 2010 suggests that 85% of prisoners serving sentences of less than five years were convicted of violent or sexual offences, robbery, burglary, theft, handling, fraud, forgery or drug offences.
+No doubt the threshold of seriousness for the passing of a sentence of imprisonment will vary in practice from one country to another.
+Different offences will perfectly properly be regarded as having more serious implications for some societies than for others.
+The United Kingdom is widely thought to have a relatively low threshold, but I am not aware that any comprehensive comparative study has been carried out which takes account of the underlying patterns of criminality.
+Although article 3 of the First Protocol is in unqualified terms, the jurisprudence of the Strasbourg Court has acknowledged from the outset that the right to vote may be subject to limitations of a kind which is familiar in the case law governing other Convention rights.
+The limitations must pursue a legitimate aim by proportionate means and must not be such as to impair the essence of the right: see Mathieu Mohin and Clerfayt v Belgium (1988) 10 EHRR 1, para 52; Matthews v United Kingdom (1999) 28 EHRR 361, para 63.
+It has generally been held that the essence of the right is not impaired if it does not thwart the free expression of the opinion of the people as a whole: see Holland v Ireland (Application No 24827/94) (unreported) 14 April 1998.
+It follows that the exclusion of certain categories of person from the franchise may be compatible with the Convention notwithstanding that as far as those persons are concerned the exclusion is total while it lasts.
+The case law has consistently emphasised that these are matters on which the state enjoys a wide margin of appreciation.
+In Hirst this was said to reflect the numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe which it is for each Contracting State to mould into its own democratic vision (para 61).
+The United Kingdom government argued before the Strasbourg Court in Hirst that the objective of disenfranchisement was to serve as an additional punishment.
+The court accepted that that was a possible rationalisation, and regarded it as a legitimate objective, compatible with article 3 of the First Protocol.
+The rule was nevertheless held to be incompatible because it was disproportionate, essentially as it was an automatic blanket ban imposed on all convicted prisoners which was arbitrary in its effects and could no longer be said to serve the aim of punishing the applicant once his tariff (that period representing retribution and deterrence) had expired (para 76).
+The court considered the governments argument that the exclusion affected only those convicted of crimes serious enough to warrant a custodial sentence, and the very similar argument put forward by an intervener that imprisonment was the last resort of criminal justice.
+They appear to have rejected this argument on the facts, observing that sentences of imprisonment are imposed for a wide range of offenders and for periods from one day to life, and that because disenfranchisement was automatic the sentencer had no opportunity to assess its proportionality in any particular case (paras 77, 80).
+The court considered that the absolute character of the rule disenfranchising convicted prisoners and its application to all convicted prisoners put it beyond the states margin of appreciation.
+They were fortified in this conclusion by their view that there was no evidence that Parliament had weighed the proportionality of a general exclusion.
+The court referred to the Speakers Conference of 1965 1968, and the Home Office working party of 1998 1999, and acknowledged that Parliament might be said implicitly to have endorsed their conclusions: Nonetheless [they concluded] it cannot be said that there was any substantive debate by members of the legislature on the continued justification in light of modern day penal policy and of current human rights standards for maintaining such a general restriction on the right of prisoners to vote. (para 79).
+The court concluded as follows, at para 82: Therefore, while the court reiterates that the margin of appreciation is wide, it is not all embracing.
+Further, although the situation was somewhat improved by the Act of 2000 which for the first time granted the vote to persons detained on remand, section 3 of the 1983 Act remains a blunt instrument.
+It strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate.
+The provision imposes a blanket restriction on all convicted prisoners in prison.
+It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances.
+Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with article 3 of Protocol No 1.
+Scoppola v Italy (No 3) (2012) 56 EHRR 663 was directly concerned with the automatic lifetime exclusion from the franchise which was the consequence under Italian law of the imposition of a sentence of life imprisonment.
+However, the United Kingdom rule was indirectly in question, because the Grand Chamber reviewed the decision in Hirst and the British government intervened to make submissions about it.
+The Chamber had held that the Italian rule violated article 3 of the First Protocol because of its automatic character.
+The Grand Chamber held that it was compatible with the Convention.
+It found that the rule pursued the legitimate aim of preventing crime and enhancing civil responsibility and respect for the rule of law (para 90).
+Turning to proportionality, it held that notwithstanding the statements in Hirst the test of proportionality did not require that disenfranchisement should be discretionary.
+It could be automatic, provided that the principles governing its imposition were sufficiently related to the gravity of the offence.
+The provisions of the relevant Italian law were held to be proportionate, unlike the English rule, because they disenfranchised only those convicted of particularly serious offences and those sentenced to the longer terms of imprisonment.
+Subject to the point about the absence of judicial discretion, the Grand Chamber reaffirmed the decision in Hirst.
+Accordingly, the Strasbourg Court has arrived at a very curious position.
+It has held that it is open to a Convention state to fix a minimum threshold of gravity which warrants the disenfranchisement of a convicted person.
+It has held that the threshold beyond which he will be disenfranchised may be fixed by law by reference to the nature of the sentence.
+It has held that disenfranchisement may be automatic, once a sentence above that threshold has been imposed.
+But it has also held that even with the wide margin of appreciation allowed to Convention states in this area, it is not permissible for the threshold for disenfranchisement to correspond with the threshold for imprisonment.
+Wherever the threshold for imprisonment is placed, it seems to have been their view that there must always be some offences which are serious enough to warrant imprisonment but not serious enough to warrant disenfranchisement.
+Yet the basis of this view is nowhere articulated.
+It might perhaps have been justified by a careful examination of the principles of sentencing in the United Kingdom, with a view to demonstrating that they involve the imprisonment of some categories of people for offences so trivial that one could not rationally suppose them to warrant disenfranchisement.
+That would be an indictment not just of the principle of disenfranchisement but of the sentencing principles themselves.
+However, no such exercise appears to have been carried out.
+I confess that I also find it surprising that the Strasbourg Court should have concluded in Hirst that the United Kingdom Parliament adopted the present rule per incuriam, so to speak, in 1969, without properly considering the justification for it as a matter of penal policy.
+The absence of debate to which the court referred reflects the attention which had already been given to the issue by the Speakers Conference, and the complete consensus on the appropriateness of the voting ban.
+Without the decisions in Hirst and Scoppola, I would have held that the question how serious an offence has to be to warrant temporary disenfranchisement is a classic matter for political and legislative judgment, and that the United Kingdom rule is well within any reasonable assessment of a Convention states margin of appreciation.
+However, the contrary view has now been upheld twice by the Grand Chamber of the European Court of Human Rights, and is firmly established in the courts case law.
+It cannot be said that the Grand Chamber overlooked or misunderstood any relevant principle of English law.
+The problems about the view which the court ultimately came to were fairly pointed out in both cases in the course of argument.
+Whatever parliamentary consideration may or may not have been given to the issue in 1969, it has undoubtedly received a great deal of parliamentary attention more recently, in debates which were drawn to the Grand Chambers attention in Scoppola but made no difference to its view.
+There is no realistic prospect that further dialogue with Strasbourg will produce a change of heart.
+In those circumstances, we would be justified in departing from the case law of the Strasbourg Court only if the disenfranchisement of convicted prisoners could be categorised as a fundamental feature of the law of the United Kingdom.
+I would regard that as an extreme suggestion, and in agreement with Lord Mance I would reject it.
+A wider and perhaps more realistic assessment of the margin of appreciation would have avoided the current controversy.
+But it would be neither wise nor legally defensible for an English court to say that article 3 of the First Protocol has a meaning different from that which represents the settled view of the principal court charged with its interpretation, and different from that which will consequently apply in every other state party to the Convention.
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+The claimant Kevin Nunn was convicted in November 2006 of the murder of his girlfriend following the ending of their relationship.
+His application for leave to appeal to the Court of Appeal (Criminal Division) was refused after hearing counsels written and oral representations on his behalf.
+He continues to protest that his conviction was wrong.
+The present proceedings for judicial review raise the question of the extent of any continuing duty of the police and the Crown Prosecution Service to assist him in gathering and examining evidence with a view to a further challenge to his conviction, which he asserts was a miscarriage of justice.
+It is common ground, and well understood, that while his trial was pending the Crown owed him the statutory duties of disclosure which are set out in sections 3 and 7A of the Criminal Procedure and Investigations Act 1996.
+That meant that it was the Crowns duty to disclose to him anything which had become known to it and which might reasonably be considered capable either of undermining the prosecution case or of assisting his own.
+At the heart of the submissions of Mr Southey QC for the claimant is the contention that this duty remains in existence in exactly the same form after as well as before his trial ended with his conviction.
+Whilst the statutory duties of disclosure are expressly framed as continuing only until the end of the trial, Mr Southey contends that those duties are only statutory enactments of the common law duty which pre-existed the 1996 Act, and that accordingly this common law duty remains binding on the Crown indefinitely.
+The basis for it, he argues, lies in the necessity of detecting and correcting any miscarriage of justice which may have occurred.
+Kevin Nunn had been the boyfriend of the deceased, Dawn Walker, for about two years prior to February 2005.
+They did not live together and she may have had other boyfriends during this period.
+It was agreed that on the evening of Wednesday 2 February their relationship was brought to an end in the course of a discussion between them at her home.
+The Crown case was that there was a noisy argument, overheard by the neighbours and seen by one, and that Dawn had ended the affair against Nunns wishes.
+His case by contrast was that it had been a matter of amicable agreement; there had been no argument and he had left well before the time spoken of by the neighbours.
+After that evening Dawn was not seen alive again.
+Her body was found by a river two days later on Friday 4 February.
+Attempts had been made to set fire to it at a different place near the river and at some stage it had been immersed in water.
+It had then been disposed in a sexually degrading position, unclothed except for a fleece over a sweatshirt pulled up above her breasts, which garments had been put on after death and burning in other clothes.
+The exact cause of death could not be determined.
+Her head and pubic hair had been shaved off, her ankles and Achilles tendon had been lacerated, and a length of reed had been inserted into her anus.
+The body must have been somewhere else during Wednesday night and Thursday, for it would have been seen if then by the river.
+In barest outline, the Crown case against the claimant relied upon (i) the motive afforded by Dawns rejection of him, (ii) evidence that he was of a jealous disposition and had stalked both Dawn and a previous partner, (iii) his admitted presence with her on the evening of her disappearance, (iv) the argument which the neighbours said that they had heard that night, (v) his having provided himself with a key to her home without her knowledge, which would have afforded access both to items found where the body had been burned and to a petrol can apparently removed from her shed for use in the burning, (vi) his having told her employers the next day that she was not at work because unwell, and (vii) the evidence of a neighbour who knew him and who said that she had seen him, with an accomplice, removing a large wrapped object, consistent with a body, from Dawns house in the small hours of the night before she was found.
+By contrast, the claimants case was that he had left Dawn in good health and had thereafter been elsewhere.
+He pointed to a telephone record of her mobile telephone calling his at 04.55 on the night of 2/3 February; he denied that he had made the call himself to lay a false trail, and he explained the absence on his own phone of the voicemail message which he said she had left by saying that he had accidentally deleted it.
+He said that footprints consistent with his boots near the riverbank burning site were there because he had gone looking for Dawn the day after she disappeared; he had walked the river bank but had not seen various items connected with her which others had seen there.
+He advanced the positive case that Dawn had been murdered by one, or perhaps another, of her previous boyfriends, to one of whom she was perhaps hoping to return.
+Both were called and cross examined on his behalf before the jury, as was the girlfriend of one of those men, who provided that alleged murderer with an alibi.
+The claimant pointed to the presence of traces of sperm (four cells) on Dawns inner thigh and pubic area (but not in her vagina) which, since he had had a vasectomy, were unlikely to derive from him; unless they had got there by secondary or tertiary transfer or unknown past sexual contact via clothing these, he suggested, were an indication of a killer other than him.
+These and other issues were all fully investigated at a trial which lasted some six weeks.
+In the course of it the jury heard and was able to judge the evidence of the claimant and of the identifying neighbour, as well as of the two men whom the claimant accused.
+The jurys verdict of guilty was returned on 20 November 2006.
+The Court of Appeal refused the application for leave to appeal against conviction on 17 October 2007.
+The claimant continued to protest his innocence.
+Beginning in January 2008, he made a series of written applications to the police for supply of all their records of the investigation.
+These will, for an investigation such as this, have been very voluminous; they were logged in detail under the normal police computerised system for major enquiries (HOLMES).
+He sought everything, including officers notebooks, computer files, incident logs, CID journals and the like, together with all photographs and forensic science records.
+The applications were framed under either the Freedom of Information Act 2000 or the Data Protection Act 1998.
+Whether or not the claimant fully appreciated the law, even if there was anything which could be obtained under these two statutes, these blanket applications were misconceived (see, inter alia, section 30 of the former and section 29 of the latter), quite apart from the fact that there is no suggestion that anything relevant had not been disclosed to the defendant, through his trial solicitors, before the trial.
+By February 2010, however, the claimant had instructed fresh solicitors, who had not represented him at his trial.
+He will have been entitled to call for the case papers, including unused prosecution material, from his trial solicitors to give to his new representatives.
+On 8 February 2010 the new solicitors wrote the first of a number of letters to the police seeking information.
+They said: We should be most obliged if you could serve upon us some relevant and as yet undisclosed material in relation to the finances of the deceased, Dawn Walker.
+The purpose of this enquiry is to ascertain whether Ms Walker had any undisclosed source of income which might indicate any form of economic activity which was not disclosed to the defence.
+This enquiry is necessitated in part by the conclusion drawn from the available facts that Ms Walker was living at a standard way beyond the income which she earned at [her employers].
+.. We should also like to know whether the keys to the shed at Dawn Walkers home and her mobile phone can be made accessible to our expert, probably at the forensic science laboratory for the purpose of DNA testing.
+There is no sign that Ms Walkers finances had been thought by anybody to have any relevance at all to the trial or to the question of who had murdered her.
+The enquiry clearly indicated a wish to start afresh investigating the case.
+Nor was the request for anything specific; it was a request for the police to exhume all the investigation records, a little over three years after the end of the trial, and to review anything bearing on this new topic.
+By now the investigation documents were all in storage and some officers concerned had moved on to other postings.
+In the event, some research was undertaken and a positively worded letter from the CPS responded that the author had ascertained that the deceased had certainly not been living beyond her means.
+Nothing more seems to have been heard of this line of enquiry.
+Other requests, however, followed, some specific and some not.
+They included a request for sight of the notes of any forensic scientist who had worked on the case so that an independent expert could check their adequacy, and they sought access to various exhibits for further testing as and when their expert so advised.
+The solicitors made it clear that they were undertaking a full review of the case to determine what lines of enquiry may turn up fresh evidence.
+They referred to wanting to review material relating to DNA, pathology, soil composition, pollens and diatoms.
+In November 2010 an itemised list of requests for information was sent to the police.
+It asked a variety of questions which would have entailed a detailed review of the investigation documents.
+It included the question, described as relating to an obvious possibility, whether the murder of Dawn Walker had been linked to a series of high profile murders of prostitutes in Ipswich.
+The several letters made it clear that other requests would be likely to follow as the general review of the case proceeded.
+On 1 February 2011 the police replied formally, repeating what had already been said in correspondence, to the effect an obligation was accepted to disclose any material which came to light after the conviction and which might cast doubt on the safety of the conviction, but not to facilitate a general trawl through a finished case.
+The claimants application for judicial review followed.
+It sought: (a) A declaration that the defendant's 1 February 2011 refusal to grant the claimant access to prosecution evidence is unlawful being in breach of his rights under domestic common law, under articles 5 and 6 of the ECHR and/or under section 7 of the Data Protection Act 1998; and (b) a mandatory order requiring the Chief Constable to grant the claimant access to the prosecution evidence, together with such other declaratory relief as might be appropriate.
+The Divisional Court (Sir John Thomas P and Haddon-Cave J) refused the application.
+This is the claimants appeal from that refusal.
+It should be recorded that after the lodging of the claim for judicial review, and again between the hearing before the Divisional Court and that in this court, the apparent target of the claimants present requests has been narrowed.
+It seems that nothing is now made of the suggested obvious possibility that this murder was linked to the murders of prostitutes in Ipswich; the several important differences between the two cases which have been explained may have been taken on board.
+The focus is now upon (i) access to the working papers of the forensic scientists who advised the Crown and/or gave evidence and (ii) requests for re-testing, or first testing, of various exhibits recovered in the course of the investigation.
+At the trial, the scientific evidence was, in most respects, inconclusive as to the identity of the killer.
+The Crown did not rely on it to support the case against the claimant, as the trial judge carefully reminded the jury early in her summing up.
+There were the footprints near the river which were consistent with boots which the claimant wore, but they were not uniquely so, and he admitted walking there at the material time.
+DNA testing of various items found either on the body or where it had been burned provided nothing to associate them either with the claimant or with any of the other males who figured in the case.
+The scientific evidence of the presence of traces of sperm on the deceased was not disputed, and evidence was given about the possible ways in which, by secondary or tertiary transfer, such material might arrive where it was found.
+The claimant called expert evidence relating to the consequences of his vasectomy.
+What other scientific advice he had cannot, in the absence of waiver of privilege, be known.
+No forensic science report available to him at trial has ever been disclosed by him; there is of course no obligation upon a defendant to disclose such a report unless he proposes to rely upon it.
+A great many defendants decide, on advice, that there is nothing in the reports obtained for them which will help them or that the best use to which they can be put is to inform cross-examination of the Crown scientists without exposing points on which the reporting expert agrees.
+Some time after the claim for judicial review was lodged, the claimant provided the police and CPS with a full report from an independent forensic scientist who had clearly been instructed by the new solicitors some while beforehand, though long after the trial.
+While appeal to this court was pending, a further statement from a different forensic scientist has also been lodged, dealing with advances in DNA testing techniques over the period since the trial; this was admitted without objection before this court.
+Nevertheless, whilst the focus of the now current application to the police has narrowed, it is plain from the sequence of the requests made that what the claimant seeks is a full re-investigation, and access from time to time to whatever he thinks necessary to review any point which he wishes.
+Consistently with this, the appeal has been argued before this court at the general level of the extent of the duty, after conviction and exhaustion of appeal, to which the Crown and the police remain subject in relation to the products of the police enquiry.
+The question of law of general public importance which the Divisional Court certified at Mr Southeys request is: Whether the disclosure obligations of the Crown following conviction extend beyond a duty to disclose something which materially may cast doubt upon the safety of a conviction, so that the [Chief Constable] was obliged to disclose material sought by the claimant in these proceedings ?
+As is apparent from the summarised history of applications set out above, what this claimant chiefly seeks is not disclosure of something which has been withheld from him, but inspection of material which was fully and properly disclosed during the trial process.
+Disclosure and inspection are related, and governed by similar principles, but it does not at all follow that the exact content of the Crowns duty in a particular case can be understood without adverting where necessary to the difference between them.
+As Mr Southey rightly submits, the Crowns duty of disclosure and inspection was formulated by the common law in the second half of the twentieth century.
+There were parallel developments of rules of disclosure in other common law jurisdictions: see for example Brady v Maryland 373 US 83 (1963) in the United States of America.
+The precise extent of the duty in England and Wales before and during trial is not in issue in the present case and calls for no more than a summary.
+Early decisions, such as R v Bryant and Dickson (1946) 31 Cr App R 146 and Dallison v Caffery [1965] 1 QB 348 recognised the Crowns duty to disclose to a defendant the existence of a witness who can give material evidence.
+Later decisions expanded the rule into a general duty to disclose evidence of any kind which might reasonably be thought capable of assisting a defendant, in large part in response to a few notorious cases in which trials went wrong because defendants were unaware of such material although it was in the hands of the prosecution.
+R v Ward [1993] 1 WLR 619 is a well-known example, where wholesale failure to disclose scientific material bearing on the reliability of scientific evidence at the centre of the Crown case made it necessary to quash convictions for bomb-setting some twenty years after the event.
+A defendants right to have disclosed evidential material inspected on his behalf will generally go with the duty of disclosure.
+For example, R v Mills [1998] AC 382 held that a material witness statement should be provided for inspection as well as the existence of the witness disclosed.
+There are, however, inevitably additional considerations associated with inspection of evidential material other than witness statements.
+Occasionally, material may have had to be destroyed for reasons of safety, or may unavoidably have been used up in a testing process.
+If it remains available, inspection must be on terms that it is properly preserved and, if scientific, not exposed to risk of contamination.
+Particular issues may arise in relation to the cost of handling or preserving some kinds of material.
+There are special rules for material falling within the Sexual Offences (Protected Material) Act 1997 designed to prevent it from being put into the possession of individual defendants.
+In practice, in many cases, inspection is likely reasonably to be restricted to nominated and trusted professional or expert persons.
+What will be reasonable will vary from case to case.
+The Criminal Procedure and Investigations Act 1996 put the common law prosecution duty of disclosure into statutory form.
+It recognised a two-stage process of disclosure, initially under section 3 and continuing under what is now section 7A. It also inaugurated a duty of defence disclosure, which, although one of imperfect obligation, is connected to the prosecution duty since the defence statement required by section 5 and the advance notices required by sections 6C and 6D help to define the issues and thus to identify material which may be relevant to the duty of continuing disclosure.
+The Act somewhat modified the test for disclosure from that variously articulated in R v Ward and in R v Keane [1994] 1 WLR 746 at 752, whilst maintaining its purpose.
+Both the initial duty under section 3 and the continuing duty under section 7A are couched in the same terms.
+They apply to any material which the prosecution has or has inspected and which: .might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused.
+The Act dealt specifically with the timing of the duties which it created.
+In this and generally it gave effect to the recommendation of the Royal Commission on Criminal Justice (the Runciman Commission) (1993) (Cm 2263) which had expressed concern that the common law risked requiring detailed disclosure of matters whose potential relevance is speculative in the extreme and about the impracticability of the sheer bulk of disclosure which might be within the principle (chapter 6, p 95, at para 49).
+The Act met those concerns firstly by providing the test for disclosure set out above.
+By section 21, where the statutory duties created by the Act apply, they displace the former common law duties which cease to operate.
+The Act then recognised the two-stage disclosure procedure described above and it defined the period during which its statutory duties of disclosure are imposed.
+For trials on indictment, the duty begins with the arrival of the case (by whatever route) in the Crown Court: section 1(2).
+It ends with the end of the trial, whether by conviction, acquittal or the Crown discontinuing proceedings: section 7A(1)(b).
+It follows that the duty of disclosure created by the Act does not apply to the present claimant.
+The end of the trial is, however, not always the end of the criminal process.
+Any convicted defendant has the right to appeal to the Court of Appeal (Criminal Division) if he can show an arguable case that his conviction is not safe.
+If that fails, a defendant cannot mount a second appeal, because the court is functus officio.
+But, again in response to the recommendations of the Runciman Commission, the law of England and Wales (and also of Northern Ireland and Scotland) has put in place a separate body, the Criminal Cases Review Commission (CCRC), which has the power to review any conviction and which is charged, if it thinks that there is a real possibility that the Court of Appeal might quash the conviction, with the power to refer the case back to that court for, exceptionally, the hearing of a second appeal and on any grounds, whether the same as before or different.
+Such a referral by- passes the requirement for leave to appeal.
+An arguable case is assumed.
+The Court thereupon has the duty to investigate the safety of the conviction and must quash it if it is unsafe.
+The CCRCs extensive investigative powers include the power to require the production to it of any material in the hands of the police or any other public body, to appoint an investigator with all the powers of a police officer, and to assemble fresh evidence not before the court of trial.
+As summarised above, Mr Southeys essential submission is that the common law duty of disclosure was developed with the purpose of preventing miscarriages of justice.
+Whilst the common law duty is displaced where the Act applies, it remains in force, he submits, for periods before and after the Crown Court trial.
+In particular, it remains in force after conviction for the purpose of exposing and correcting any miscarriage of justice which may have occurred.
+Hence, he contends, the duty of the Crown in the present case is exactly the same now as it was while the claimants case was pending in the Crown Court.
+It follows, he says, that the police, as the custodians of the exhibits and the other products of the investigation, must afford the claimant such access as he seeks so that he can, if material emerges which supports him, challenge his conviction.
+Mr Southey accepts, as he must, that any such challenge can now only be brought to court if the CCRC decides to refer the conviction to the Court of Appeal (Criminal Division).
+But he contends that in order to demonstrate to the CCRC that this is a proper case in which it should launch a review, the claimant needs, via his solicitors, to re-investigate the several matters which they have identified and perhaps more.
+The principled origin of the duty of disclosure is fairness.
+Lord Bingham put it in this way in R v H [2004] UKHL 3; [2004] 2 AC 134, at para 14, speaking in the context of the proper procedure for handling claims to withhold disclosure on public interest grounds: Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence.
+Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure.
+There is no doubt that this principle of fairness informs the duty of disclosure at all stages of the criminal process.
+It does not, however, follow, that fairness requires the same level of disclosure at every stage.
+The terms of section 7A of the statute plainly suggest otherwise.
+So, on inspection, does the jurisprudence.
+The common law of England and Wales has proved capable of adapting the duty of disclosure to the different stages of the criminal process.
+In R v Director of Public Prosecutions, Ex p Lee [1999] 1 WLR 1950 the Divisional Court dealt with the position before committal to the Crown Court, and thus before the statutory duties under the Criminal Proceedings and Investigations Act apply.
+It held that some disclosure was indeed required at that early stage but not what Kennedy LJ described, at p 1963, as the full blown version applicable under the Act once Crown Court proceedings are under way.
+Examples of material which ought to be disclosed before committal would include evidence which bears on a bail application, or which is relevant to an application to stay for abuse, or which relates to unused eye witnesses whose evidence might be less effective unless promptly proofed.
+That illustrates the proposition that the common law duty did not remain the same throughout.
+Rather, it was tailored to the needs of the stage of the proceedings in question.
+Similarly, although the duties laid down by the Act cease on conviction, some continuing common law duty is recognised to apply pending sentence, but only in relation to material relevant to that stage.
+The Attorney-General has issued guidelines on disclosure for prosecutors.
+They recognise at para 58 that prosecutors must consider disclosing in the interests of justice any material relevant to sentence, such as information not known to the defendant which might assist him in placing his role in the offence in the correct context vis--vis other offenders.
+That correctly gives effect to the common law duty which at this point is limited to material not known to the defendant which might assist him in relation to sentence.
+In the same way, while an appeal is pending, a limited common law duty of disclosure remains.
+Its extent has not been analysed in English cases, but plainly it extends in principle to any material which is relevant to an identified ground of appeal and which might assist the appellant.
+Ordinarily this will arise only in relation to material which comes into the possession of the Crown after trial, for anything else relevant should have been disclosed beforehand under the Act.
+But if there has been a failure, for whatever reason, of disclosure at trial then the duty after trial will extend to pre-existing material which is relevant to the appeal.
+This was the case, for example in R v Makin [2004] EWCA Crim 1607, to which Mr Southey referred the court, where the complaint was of a failure of disclosure at trial, and disclosure pending appeal was necessary to enable the complaint to be investigated by the court, albeit on examination the court rejected it.
+A similar result was reached in McDonald v HM Advocate [2008] UKPC 46; 2010 SC (PC) 1 in relation to Scottish law (where the content of the duty of disclosure was then in a transitional state).
+The Judicial Committee of the Privy Council accepted that if there had been a failure of disclosure at trial, the duty on appeal was to make available what should have been provided at trial as well as material relevant to existing grounds of appeal.
+However, it roundly rejected the contention that at the appellate stage there arose a duty on the prosecution to re-perform the entire disclosure exercise, so that the appellant could see whether anything might emerge which could be used to devise some additional ground of appeal.
+Lord Rodger observed at para 71 that that was an extravagant proposition.
+He went on to explain why, at para 74: Not only would such an obligation be unduly burdensome, but it would often be quite inappropriate at the appeal stage.
+By then, the real issues in contention between the parties will have been focused at the trial.
+In this new situation material which might have seemed to be of potential significance for the defence before the trial (for instance as weakening the identification evidence of a witness to a murder) may now be seen to have actually been irrelevant (because for instance the accused admitted that he killed the deceased but pleaded self-defence).
+In other words, what fairness requires varies according to the stage of the proceedings under consideration.
+This conclusion is consistent with that reached in other common law jurisdictions.
+In the New Zealand case of The Queen v Nepia (unreported) 3 October 2000, the Court of Appeal found the source of the disclosure rule at the pre-appeal stage in the power of that court under section 389(a) of the Crimes Act to order production of any document exhibit or thing which appears to be necessary for the determination of the case (a provision equivalent to section 23 of the England and Wales Criminal Appeal Act 1968).
+It held that this jurisdiction, exercisable on appeal, is not part of an investigatory procedure and should not be used as part of a general fishing expedition.
+It held that a realistic evidential foundation will in general have to be laid before it is used.
+In the recent case of Cant v The Queen [2013] NZCA 321, again a pending appeal, the Court of Appeal similarly held that questions of the Crown were not appropriate, and that requests for disclosure must have a material bearing on an articulated ground of appeal.
+A similar approach was adopted in the Court of Appeal of Ontario in The Queen v Trotta [2004] CanLII 600114 (ON CA).
+Canadian law recognises a duty of disclosure for the purposes of trial which is equivalent to that imposed in England and Wales: R v Stinchcombe [1991] 3 SCR 326.
+Trotta held that in principle disclosure obligations continued into the appellate process.
+The court observed that the protection of the innocent is as important on appeal as it is prior to conviction.
+But it drew attention to the fundamental differences between the two stages when it comes to the content of the duty.
+The convicted person is no longer to be presumed innocent.
+He has exhausted his right to make full answer and defence.
+The duty of disclosure at this stage was held to extend to any information in the possession of the Crown where the accused can show that there is a reasonable possibility that it could assist him in the prosecution of his appeal.
+In that case, there had arisen since the trial some suggestions of lack of balance in the evidence given in other cases by the Crown pathologist.
+The Court held that there would be a duty to disclose this material to the appellant if there were any reason suggested to doubt the evidence which the pathologist had given in the instant case.
+Since there was not, the material was irrelevant and the request for it speculative.
+This is a good illustration of the difference between the two stages.
+There can be no doubt that, if it had then been in existence, the material affecting the pathologist would have been disclosable pre-trial, for at that stage it would not have been known whether there was or was not any challenge to his findings.
+The important differences between the pre-trial and post-conviction stages were similarly emphasised by the US Supreme Court in District Attorneys Office (Third Judicial District) v Osborne 557 US 52 (2009).
+The court divided 5:4 upon the jurisdictional question whether a complaint of denial of access to DNA testing post-conviction raised a constitutional issue, and thus on whether the issue was a proper one for the Supreme Court rather than for the federal or State courts.
+There was also disagreement on whether there was a right to such access in a case where it was agreed that the testing would be conclusive of guilt or innocence.
+But there was agreement that the position of a convicted person was not generally analogous to that of a person on trial.
+All the judges agreed that the disclosure rules applicable prior to and during trial, set out in Brady v Maryland 373 US 83, did not continue unaltered after conviction.
+Roberts CJ, giving the judgment of the majority, said this: Osbornes right to due process is not parallel to a trial right, but rather must be analysed in light of the fact that he has already been found guilty at a fair trial, and has only a limited interest in postconviction relief.
+Brady is the wrong framework.
+The minority opinion, delivered by Justice Stevens, agreed on this.
+It included approval of Luttig Js statement in the earlier case of Harvey v Horan 285 F 3d (2002) 298 at 305 that: no-one would contend that fairness, in the constitutional sense, requires a post-conviction right of access or a right to disclosure anything approaching in scope that which is required pre-trial Whilst the jurisdictional question was later resolved in favour of a different appellant in Skinner v Switzer 562 US (2011) nothing in that decision bears on the distinction between disclosure pending trial and disclosure post-conviction.
+There is thus no basis for saying that the common law ever recognised a duty of disclosure/inspection after conviction which was identical to that prevailing prior to and during the trial, and no case, whether in this jurisdiction or any other, has been found to suggest it.
+All the stages thus far considered are ones at which the criminal justice process remains afoot, with either trial or sentence or appeal to be catered for.
+When it comes to the position after the process is complete, the Attorney Generals guidelines deal specifically with disclosure of something affecting the safety of that conviction.
+The relevant paragraph in the most recent edition (2013), echoing the same principle in earlier editions, says this: Post conviction.
+72.
+Where, after the conclusion of proceedings, material comes to light that might cast doubt upon the safety of the conviction, the prosecutor must consider disclosure of such material.
+The guideline must mean that not only should disclosure of such material be considered, but that it should be made unless there is good reason why not.
+Thus read, it is entirely consistent with the principle reflected in the position set out in the paragraphs above in relation to the pre-Crown Court stage, to the pending sentence stage and to the pending appeal stage.
+Mr Southeys submission entails the argument that the guidelines greatly understate the duty in the circumstances of the present claimant.
+He is entitled, if Mr Southey is right, to the full extent of the duty which the Crown had had during his trial.
+That would mean a duty to give active consideration, presumably continuously, to the state of the evidence.
+And, as the requests made of the police in the present case illustrate, it would mean a duty to respond from time to time to any requests for information, or for access to material, which the convicted defendant makes.
+The argument appears to be that his right to the performance of that duty endures indefinitely, or certainly whilst he, or perhaps anyone else, asserts that the conviction was wrong.
+The fallacy in this argument lies in the implicit assumption that the common law duty, as it evolved, was identical before and after conviction.
+As has been seen, it was not.
+Moreover, it does not at all follow from the fact that the common law developed the Crowns duty of disclosure with the object of minimising the risk of miscarriages of justice that a convicted defendant such as the claimant, who asserts that his conviction was wrong, is or ever was entitled to the same duty continuing indefinitely after that conviction.
+The common law developed the duty as an incident of the trial process, to ensure that that process was fair to defendants.
+It was designed to avoid trials creating miscarriages of justice, not as a means of investigating alleged miscarriages after a proper trial process has been completed.
+It was not devised in order to equip convicted persons such as the claimant with a continuing right to indefinite re-investigation of their cases, and the fact that some such persons assert that their convictions were miscarriages of justice does not mean that it was.
+The position of a convicted defendant is different in kind from that of a defendant on trial.
+The latter is presumed innocent until he is proved guilty, as he may never be.
+The former has been proved guilty.
+He is presumed guilty, not innocent, unless and until it be demonstrated not necessarily that he is innocent, but that his conviction is unsafe.
+The defendant on trial must have the right to defend himself in any proper way he wishes, and to make full answer to the charge.
+The convicted defendant has had this opportunity.
+The public interest until conviction is in the trial process being as full and fair as it properly can be made to be.
+After conviction, there is of course an important public interest in exposing any flaw in the conviction which renders it unsafe and in quashing any unsafe conviction, but there is also a powerful public interest in finality of proceedings.
+All concerned, including witnesses, complainants, the relatives of the deceased and others, have a legitimate interest in knowing that the legal process is at an end, unless there be demonstrated to be good reason for re-opening it.
+A duty such as that suggested by Mr Southey should not be assumed to be straightforward of performance.
+The products of a major investigation are typically voluminous, far more so than the evidence adduced at trial, extensive though that often is.
+Whilst they are generally catalogued on computer, many will be paper material.
+In smaller cases, in which the same duty would apply, there may be very little retained.
+Generally, materials will often be archived after the appeal process is exhausted.
+To make an informed or useful search of them requires them to be mastered.
+Police officers move on to other appointments, or retire; it cannot be assumed that the investigating officers will remain in the same place where they formerly were, or that they will continue to have regular access to the material.
+If the material is actively to be managed and re-considered, officers will have to be diverted to the task from other investigations.
+The evidence of the detective inspector in the present case was, for example, that reviewing the stored evidence in order to deal with the claimants subject access request under the Freedom of Information Act occupied approximately four man-days of police time.
+If there is demonstrated to be a good reason for this kind of review of a finished case, then the resource implications must be accepted.
+There is, however, a clear public interest that in the contest for the finite resources of the police current investigations should be prioritised over the re-investigation of concluded cases, unless such good reason is established.
+If, then, there is no basis for Mr Southeys principal submission, that the duty of disclosure remains the same after conviction as before, the question remains what the duty does entail at that stage.
+There can be no doubt that if the police or prosecution come into possession, after the appellate process is exhausted, of something new which might afford arguable grounds for contending that the conviction was unsafe, it is their duty to disclose it to the convicted defendant.
+Simple examples might include a new (and credible) confession by someone else, or the discovery, incidentally to a different investigation, of a pattern, or of evidence, which throws doubt on the original conviction.
+Sometimes such material may appear unexpectedly and adventitiously; in other cases it may be the result of a re-opening by the police of the enquiry.
+In either case, the new material is likely to be unknown to the convicted defendant unless disclosed to him.
+In all such cases, there is a clear obligation to disclose it.
+Para 72 of the Attorney Generals guidelines, quoted above, correctly recognises this.
+This is, however, plainly different from an obligation not to reveal something new, but to afford renewed access to something disclosed at time of trial, or to undertake further enquiries at the request of the convicted defendant.
+Miscarriages of justice may occur, however full the disclosure at trial and however careful the trial process.
+A convicted defendant clearly has a legitimate interest, if continuing to assert his innocence, to such proper help as he can persuade others to give him: see R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, where a prisoners right, for this purpose, to a visit by, and oral interview with, an investigative journalist was recognised.
+Quite apart from the defendants interest, the public interest is in such miscarriages, if they occur, being corrected.
+There is no doubt that there have been conspicuous examples of apparently secure convictions which have been demonstrated to be erroneous through the efforts of investigative journalists, or of solicitors acting on behalf of convicted persons or, sometimes, of other concerned persons.
+This court was referred to R v Hodgson [2009] EWCA Crim 490 as a particularly graphic illustration.
+There, the defendants conviction for rape and murder, based essentially upon the apparently compelling detail of his own circumstantial confessions, was, some twenty seven years later, demonstrated to have been wrong by the advances in science, and despite no one concerned with the investigation or trial having done anything which could be criticised.
+This was possible because samples of semen recovered from vaginal and anal swabs taken from the deceased could be analysed for DNA in a way which had not been possible at the time.
+A solicitor who was recently instructed on behalf of the defendant made the enquiry of the CPS and/or the police whether the samples remained in existence despite the passage of time.
+When it was found that they did, analysis of them by modern methods was immediately commissioned by the police and prosecution, with a view to immediate disclosure of the outcome.
+The semen could only have come from the rapist/murderer.
+The results excluded the defendant.
+A rapid joint submission to the CCRC followed, with an immediate reference by that body to the court.
+In quashing the conviction, the Court of Appeal, Criminal Division, gave appreciative recognition to the efforts of solicitor, police and prosecutor and to the level of co-operation between them.
+It does not, however, follow from cases such as this that the law ought to impose a general duty on police forces holding archived investigation material to respond to every request for further enquiry which may be made of them on behalf of those who dispute the correctness of their convictions.
+Indeed, the potential for disruption and for waste of limited public resources would be enormous if that duty were to be accepted.
+The claimants initial requests in the present case for investigation of the finances of the deceased, as well as his earlier applications for sight of the entire investigation files, afford good illustrations of the kind of speculative enquiry which such a rule would encourage.
+There is no such duty.
+If the duty of disclosure pending appeal is limited, as it plainly is, to material which can be demonstrated to be relevant to the safety of the conviction, it is all the clearer that after the appellate rights which the system affords are exhausted the continuing obligation cannot be greater than that stated in the Attorney Generals guidelines, read as explained in para 30 above.
+The safety net in the case of disputed requests for review lies in the CCRC.
+That body does not, and should not, make enquiries only when reasonable prospect of a conviction being quashed is already demonstrated.
+It can and does in appropriate cases make enquiry to see whether such prospect can be shown.
+It has ample power, for example, to direct that a newly available scientific test be undertaken.
+R v Shirley [2003] EWCA Crim 1976, a DNA case not unlike Hodgson, appears to be a case in which it did exactly that.
+What it ought not to do is to indulge the merely speculative.
+It is an independent body specifically skilled in examining the details of evidence and in determining when and if there is a real prospect of material emerging which affects the safety of a conviction.
+This exercise involves a detailed scrutiny of the other evidence in the case and a judgment on the likely impact of whatever it is suggested the fresh enquiries may generate.
+Whilst in principle the court retains control, via the remedy of judicial review, of the duty laid upon the police and prosecutors after the appeal process is exhausted, it is likely to determine, unless good reason for not doing so is provided, that relief by that route is inappropriate until the CCRC has had the opportunity to make a reasoned decision.
+The advances of science mean that from time to time it will become possible to undertake tests which were not available earlier.
+This possibility presents just one example of the approach set out above.
+Sometimes such tests will be potentially determinative of guilt, as they were in Hodgson.
+In other cases they will be simply speculative, either because there is great uncertainty about whether any result can be obtained or because any result will be consistent both with guilt and innocence.
+The difference between the two cases has given rise in the USA to debate about the extent of any right to re-testing especially if it is likely to be conclusive.
+Osborne, referred to above, records some of the debate and the fact that a large number of US states have made legislative provision for such testing in defined circumstances.
+There is, however, no body such as the CCRC in the United States, which can decide in an appropriate case to require testing.
+Here, there is.
+None of this means that the work of solicitors and others in the interests of convicted persons may not be of great value.
+There is no doubt that the CCRC is much assisted by informed legal analysis and presentation if an application for review is made to it, and not only because its funding is not unlimited, but also because accurate legal formulation focuses the mind correctly.
+Sometimes, such solicitors or others can usefully undertake enquiries of their own, respecting of course the interests of third parties.
+On other occasions they may well, by their arguments and presentations, enlist the co-operation of the police, or the prosecution, or both: Hodgson was just such a case.
+The police and prosecutors ought to exercise sensible judgment when representations of this kind are made on behalf of convicted persons.
+If there appears to be a real prospect that further enquiry will uncover something which may affect the safety of the conviction, then there should be co-operation in making it.
+It is in nobodys interests to resist all enquiry unless and until the CCRC directs it.
+It is enough to determine the instant appeal that after conviction there is no indefinitely continuing duty on the police or prosecutor either in the same form as existed pre-trial or to respond to whatever enquiries the defendant may make for access to the case materials to allow re-investigation.
+The duty is properly stated at para 72 of the Attorney Generals guidelines, read as explained in para 30 above, with the addition that if there exists a real prospect that further enquiry may reveal something affecting the safety of the conviction, that enquiry ought to be made.
+The Divisional Court held that there was no basis for concluding that any of the enquiries made in the present case go beyond the simply speculative and satisfy this latter condition.
+This court has, rightly, been pressed with argument chiefly on the principled point of law rather than on the facts of this case.
+This appeal ought not, however, to be left without the observation that the fact that DNA testing is one of the things sought does not by itself answer the question whether the request has a real prospect of uncovering material affecting the safety of the conviction.
+The request for sight of all forensic science working papers so that the scientists work could be checked was plainly speculative.
+The report provided by the claimant states specifically that there is no reason to query any of the work done or conclusions arrived at.
+The report also makes it clear in some instances that the request for testing of items which were not previously tested is made simply because the claimant or his family would like it done; those requests have the plain appearance of being likewise speculative.
+In the case of some of the testing proposed it seems likely that some alteration of the samples would be involved, by consolidating them; if this kind of operation is in question, there is a further decision to be made whether re-testing would rule out any future use of the material.
+There may be a separate question concerning the new possibilities of undertaking modern, and better, DNA testing of certain swabs, especially those from the thigh and genital region.
+Even there, however, the forensic science report now relied upon concludes that even if a match were found to one of the men under discussion in the case, that would not necessarily exclude the claimant as the killer.
+The killer may or may not have deposited traceable DNA.
+Although it is suggested for the claimant that if DNA attributable to one of these men were to be found, that would provide good evidence that he might be the killer, it must also be the case that any DNA which is found need not be related to the killing, particularly if the deceased had an association with the man in question.
+It is plain that the presence of a very few unattributed spermatozoa was known at the trial and the possibilities for innocent transfer were fully investigated.
+On the limited information presently available it seems unclear that a real prospect is established of material emerging affecting the safety of the conviction.
+However, any further request for access to the sample should be tested on the principles explained above, in the first instance by the police and if necessary by the CCRC.
+For these reasons, this appeal should be dismissed.
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+These appeals raise issues as to the respective duties of the Secretary of State and the First tier Tribunal, on an appeal against refusal of an application to vary leave to enter or remain under the Immigration Act 1971, more particularly as to the operation of the so called one stop procedures.
+The Master of the Rolls (para 40), echoing words of Jackson LJ, described the law in this field as an impenetrable jungle of intertwined statutory provisions and judicial decisions.
+It is difficult to disagree, although on this occasion the judiciary must share some of the blame.
+The Patels
+Mr Patel and his wife arrived from India in the United Kingdom on 24 March 2009.
+He had been granted leave to enter as a working holiday maker until 6 March 2011, and she as his dependent wife.
+Their only child was born here in 2010.
+On 26 February 2011, they applied for further leave to remain in the UK, relying on article 8 of the European Convention on Human Rights, and rule 395C of the Immigration 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 United Kingdom.
+They had a right of appeal to the First tier Tribunal, but that was dismissed on 14 July 2011.
+The merits of the refusal on the issues there raised are no longer in dispute.
+On further appeal to the Upper Tribunal they took a new point.
+This was that, in the light of the decision of the Court of Appeal in R (Mirza) v Secretary of State for the Home Department [2011] EWCA Civ 159, [2011] Imm AR 484, followed in Sapkota v Secretary of State for the Home Department [2011] EWCA Civ 1320, [2012] Imm AR 254, 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, which failed before the Upper Tribunal and the Court of Appeal, is the principal issue in this court.
+Mr Alam
+Mr Alam, a citizen of Bangladesh, entered the country 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.
+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, as required by the guidance under the Points Based System, show that he had held the necessary level of funds for a consecutive period ending no more than one month before the application.
+By the time of the hearing before the tribunal, on 10 June 2011, he had produced the appropriate bank statements.
+The tribunal held that, for the purposes of his appeal under the rules, this new material was excluded from consideration by section 85A of the Nationality, Immigration and Asylum Act 2002 (which had come into effect between the date of his appeal and the date of the hearing).
+However, the immigration judge held that this did not prevent him taking it into account in the appeal under article 8 of the Convention, on the basis that, since he clearly meets the requirements of the rules, it was not proportionate to the aims of immigration control to refuse his application.
+The Upper Tribunal reversed that decision, holding that the judge had erred in treating the new evidence as showing effective compliance with the rules for the purpose of article 8.
+The tribunal accepted that the appellant having been in the country undertaking studies for some four years had thereby formed some sort of protected private life for the purposes of article 8.
+But no other aspect of his life in this country was relied on.
+His family ties were all with his native Bangladesh, to which he wished to return after his studies.
+Although the new evidence was not directly relevant under article 8, it took account of the unusual circumstances in which the right to prove compliance with the rules had been lost: I have considered the circumstances in which the claimant has failed to meet the Rules: viz. that he is one of a necessarily fixed class whose ability to prove compliance with the Rules has changed by operation of law since he began his appeal proceedings.
+Those circumstances do, to some extent, diminish the State's interest in removing the claimant, merely in order to maintain the integrity of the Rules.
+If the claimant's article 8 rights had been any stronger, I might well have concluded in the circumstances that his removal in consequence of the immigration decision would be disproportionate.
+As it is, however, I consider that the balance falls to be struck in favour of the Secretary of State. (para 22)
+Mr Anwar
+Mr. Anwar, a citizen of Pakistan, entered on 26 February 2010 with leave to remain as a student until 1 April 2011.
+On 31 March 2011 he applied to extend his leave as a Tier 4 student to enable him to complete his course.
+The application was supported by a Confirmation of Acceptance for Studies (CAS), which recorded that he had been assessed by reference to a document entitled ACCA examination Financial Accounting (F3).
+The F3 document itself was not included with the application.
+On 10 May 2011 the Secretary of State refused the application because, contrary to the relevant guidance, it had not included a document referred to in the CAS, and accordingly no points had been awarded for the CAS.
+On his appeal to the First tier Tribunal the appellant produced the relevant document, claiming that it had in fact been sent with his application form.
+The tribunal allowed his appeal, but their decision was set aside by the Upper Tribunal, which held that on the balance of probabilities he had not sent the relevant document with his application.
+That factual finding is not now in dispute.
+Although there was a reference to the European 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 on 13 July 2012.
+The arguments were wide ranging, summarised by Sullivan LJ under eight grounds.
+Most are no longer in issue.
+The issues
+According to the agreed statement, the following issues are said to arise in the appeals to this court: Patel i) Whether there is an obligation on the Secretary of State to issue a decision to remove at the same time as or immediately after refusing an individuals application for variation of leave to remain in the United Kingdom. ii) Whether there is an obligation on the Secretary of State to issue a one stop notice under section 120 of the 2002 Act when refusing an individuals application for variation of leave to remain in the United Kingdom. iii) Whether the Secretary of States refusal to vary an individuals leave to remain in the United Kingdom is unlawful if it is issued in isolation from a one stop notice or a decision to remove.
+Alam/Anwar iv) Whether the conclusion of the majority in AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076, [2011] 1 WLR 385, that an appeal to the FTT covers not only any ground before the Secretary of State when she made the decision under appeal but also any grounds raised in response to a one stop notice issued under section 120 of the 2002 Act, even if they had not been the subject of any decision by the Secretary of State and did not relate to the decision under appeal, is correct. v) Whether the statements and evidence filed by Mr Alam and Mr Anwar to the FTT amounted to additional grounds under section 120 of the 2002 Act which the FTT was obliged to consider and determine, notwithstanding the bar in section 85A of that Act. vi) In an article 8 case, when balancing the demands of fair and firm immigration control against the disruption to the family or private life of a person if removed for non compliance with the Immigration Rules, whether the nature and degree of the non compliance is significant or, as the Court of Appeal has held (in Miah v Secretary of State for the Home Department [2012] EWCA Civ 261; [2013] QB 35), irrelevant.
+While these issues were agreed between the parties, and they conveniently identify the main matters on which we heard submissions, it will be necessary to consider in due course the extent to which they do properly arise for decision on these appeals.
+For example, the question of an obligation to serve notices under section 120 (issue (ii)) does not arise in any of the three cases, since such notices were in fact served in all of them.
+The statutory provisions
+The Immigration Act 1971, and the rules made under it, constitute the principal statutory framework for the control of immigration, and the Secretary of States functions in that respect.
+Both the statute and the rules have been subject to frequent amendment and addition.
+The issues in the present appeals turn principally on the provisions of the Nationality, Immigration and Asylum Act 2002 which established a new statutory code relating to appeals against immigration decisions, including the so called one stop notices under section 120.
+In relation to the Secretary of States powers of removal, it will be necessary also to consider the Immigration and Asylum Act 1999 section 10, and the Immigration, Asylum and Nationality Act 2006 section 47.
+The starting point is section 3 of the 1971 Act.
+It provides that a person who is not a British citizen may not enter the United Kingdom except with leave under the Act.
+Where leave is given for a limited period, it may be varied by restricting, enlarging or removing the limit on its duration (section 3(3)).
+Section 3C (added by the 2002 Act) is entitled Continuation of leave pending variation decision.
+It applies where a person with limited leave applies, before the leave expires, for a variation of the leave.
+Subsection (2) has the effect that the leave is extended during any period when (a) the application for variation is neither decided nor withdrawn, (b) an appeal under section 82(1) of the 2002 Act could be brought while the appellant is in the United Kingdom, or an appeal brought while the appellant is within the United Kingdom is pending.
+By section 3C(4), a person may not make a further application for variation of his leave while it is extended under this section, but that does not prevent a variation of the application already made.
+It is common ground that such a variation may include grounds unrelated to those in the initial application.
+This provision needs to be understood also in the context of section 92 of the 2002 Act.
+That makes clear that for most categories of immigration decision, other than asylum or human rights claims made from within the United Kingdom and those decisions listed in subsection (2), an appeal must be brought from outside the country.
+Section 3C provides a limited exception for applications to extend existing leave made before its expiry.
+Section 82(1) of the 2002 Act confers a right of appeal to the tribunal in respect of an immigration decision.
+By section 82(2) immigration decision is defined as including (inter alia) a refusal to vary leave to enter or remain if the result of the refusal is that the person has no leave to remain (para (d)); and a decision that a person is to be removed by way of directions under either section 10 of the 1999 Immigration and Asylum Act or section 47 of the Immigration, Asylum and Nationality Act 2006 (paras (g), (ha)).
+Section 84 enumerates the possible grounds of appeal which include: (a) that the decision is not in accordance with immigration rules; (c) that the decision is unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellants Convention rights; (e) that the decision is otherwise not in accordance with the law; (f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules; (g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdoms obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellants Convention rights.
+Section 85 is headed Matters to be considered.
+Its present form, along with section 85A, is derived from amendments made by the UK Borders Act 2007, which were brought into effect, subject to transitional provisions, on 23 May 2011.
+It provides: (1) An appeal under section 82(1) against a decision shall be treated by the Tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1). (2) If an appellant under section 82(1) makes a statement under section 120, the Tribunal shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against. (3) Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced. (4) On an appeal under section 82(1), 83(2) or 83A(2) against a decision the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision. (5) But subsection (4) is subject to the exceptions in section 85A.
+The exceptions in section 85A include the following: (3) Exception 2 applies to an appeal under section 82(1) if (a) the appeal is against an immigration decision of a kind specified in section 82(2)(a) or (d), (b) the immigration decision concerned an application of a kind identified in immigration rules as requiring to be considered under a Points Based System, and (c) the appeal relies wholly or partly on grounds specified in section 84(1)(a), (e) or (f). (4) Where Exception 2 applies the Tribunal may consider evidence adduced by the appellant only if it (a) was submitted in support of, and at the time of making, the application to which the immigration decision related, (b) relates to the appeal in so far as it relies on grounds other than those specified in subsection (3)(c), (c) is adduced to prove that a document is genuine or valid, or (d) is adduced in connection with the Secretary of States reliance on a discretion under immigration rules, or compliance with a requirement of immigration rules, to refuse an application on grounds not related to the acquisition of points under the Points Based System.
+This provision, which is relevant to the Alam and Anwar appeals, needs a little unravelling.
+It is not in dispute that exception 2 applied to both appeals, because the applications had fallen to be considered under the Points Based System.
+Accordingly, (under subsection (4)(a)) the tribunal was unable to consider the new evidence in support of the case under the rules.
+It could only consider it (under subsection (4)(b)) in so far as it related to grounds other than those specified in (3)(c), that is grounds other under section 84(1)(a), (e) or (f).
+Such other grounds include the human rights grounds under section 84(1)(c) and (g).
+Accordingly, consideration of the new evidence so far as relevant to such grounds, in particular article 8 of the Convention, was not excluded.
+Section 86 deals with the determination of the appeal.
+The tribunal is required to determine any matter raised as a ground of appeal and any matter which section 85 requires it to consider.
+It must allow the appeal in so far as it thinks that a decision against which the appeal is brought or is treated as being brought was not in accordance with the law.
+It may also allow the appeal on the grounds that a discretion exercised in making such a decision should have been exercised differently (section 86(3)(b)), but refusal to depart from the immigration rules is not treated as the exercise of a discretion for these purposes (section 86(6)).
+One stop notice
+Section 120 of the 2002 Act applies to a person (a) who has made an application to enter or remain in the UK, or (b) in respect of whom an immigration decision has been taken or may be taken.
+By subsection (2): The Secretary of State or an immigration officer may by notice in writing require the person to state: (a) his reasons for wishing to enter or to remain in the United Kingdom, (b) any grounds on which he should be permitted to enter or remain in the United Kingdom, and (c) any grounds on which he should not be removed from or required to leave the United Kingdom.
+There is no express provision dealing with the form of the response, nor imposing on the Secretary of State any express duty to consider it or determine the issues raised by it.
+Under section 85(2) as already noted, the tribunal, hearing an existing appeal under section 82(1), is required to consider any matter raised in the section 120 statement if it constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against.
+Furthermore, by section 96, the section 120 notice opens the way for the Secretary of State to issue a certificate limiting the scope for subsequent appeal.
+Thus section 96(2) precludes an appeal against an immigration decision (the new decision) in respect of a person where the Secretary of State or an immigration officer certifies: (a) that the person received notice under section 120 by virtue of a decision other than the new decision, (b) that the new decision relates to an application which relies on a matter that should have been, but has not been raised in a statement made in response to that notice, and (c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement in response to that notice.
+Removal decisions
+The Secretary of States powers of removal are defined by section 10 of the 1999 Act and section 47 of the 2006 Act.
+The former provides that a person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if (a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave; By subsection (9) the reasonable costs of complying with the direction must be met by the Secretary of State.
+Section 47 of the 2006 Act, as originally enacted, provided: (1) Where a persons leave to enter or remain in the United Kingdom is extended by section 3C(2)(b), the Secretary of State may decide that the person is to be removed from the United Kingdom, in accordance with directions to be given by an immigration officer if and when the leave ends.
+Again the costs of compliance must be met by the Secretary of State (section 47(4)).
+For completeness, I note that on 8 May 2013 (after the time relevant for the present appeals) a new form of the section was inserted, providing for notice of a pre removal decision (which includes the decision on an application to vary leave to remain) to be given at the same time as the removal direction under section 47.
+This change was designed to deal with a practical problem arising from Sapkota which had been highlighted by a subsequent decision of the Upper Tribunal (upheld by the Court of Appeal).
+It is not directly material to the present appeals.
+The Patel appeals
+There is no dispute now as to the merits of the refusal of leave to remain in the Patel cases, under either the rules or the Convention.
+The sole issue is one of law relating to the form in which the decision was made, more particularly its segregation (the word used in some of the cases) from the decision to direct removal.
+The failure to issue such a direction, it is said, was not only unlawful in itself, but also undermined the validity of the previous decision to refuse leave to remain.
+A similar issue in relation to service of a section 120 notice, although identified in the agreed statement, does not arise on the facts of the case, since such a notice was in fact served.
+In support of this argument, Mr Malik relies principally on the decisions of
+the Court of Appeal in the cases of Mirza [2011] Imm AR 484 and Sapkota [2012] Imm AR 254 to which I have already referred.
+It was held, in summary, (in Mirza) that a policy of separating the refusal of leave to remain from the decision to remove was contrary to the policy and objectives of the 2002 Act to deal compendiously with all issues on the lawfulness of a persons residence in the United Kingdom; and consequently (in Sapkota) that an unjustified deferral of the removal decision would mean that the actual immigration decision was not in accordance with the law.
+Those judgments, and the subsequent Court of Appeal authorities, are discussed in detail in the judgment of the Master of the Rolls in the present case.
+Without disrespect to the judges involved in those decisions, or to Mr Maliks determined arguments in support of them, I do not propose to add materially to the voluminous discussion which this issue has already generated.
+It is sufficient to say that I am in entire agreement with the reasons of the Court of Appeal for not following them.
+The powers to issue removal directions under section 10 of the 1999 Act and section 47 of the 2006 Act (like the power to issue notices under section 120 of the 2002 Act) are just that powers.
+Their statutory purpose is as part of the armoury available to the Secretary of State for the enforcement of immigration control.
+Any extra protection provided to an appellant is incidental.
+Neither section 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.
+As Burnton LJ said in the Court of Appeal [2013] 1 WLR 63, para 73: This language is clearly and unequivocally the language of discretion, not duty, and it is simply not open to the court to interpret it as imposing a duty.
+For the court to do so is to amend the legislation, not to interpret it.
+The contrary argument depends to my mind on a misapplication of the so called Padfield principle (Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997).
+Under that principle, it is clear that discretionary powers conferred by statute must not be used in such a way as to thwart or run counter to the policy or objects of the Act (per Lord Reid, at p 1030C D)).
+It can no doubt be said that one of the purposes of the 2002 Act was to reduce the scope for repeat appeals, and that, as Laws LJ observed, the legislation leans in favour of what are called one stop appeals (JM (Liberia) v Secretary of State for the Home Department [2006] EWCA Civ 1402; [2007] Imm AR 293, para 23).
+It may be also, as Mr Malik submits, that the exercise of the Secretary of States powers has the incidental effect in some cases of adding to the range of matters an appellant is able to raise by way of appeal during the period that his leave is extended under section 3C.
+However, neither such general observations nor such incidental effects can be translated into an overriding policy requiring the Secretary of State to act in a particular way, nor into a right for the appellant to insist that he does so.
+It is to be borne in mind also that exercise of the powers to direct removal, which alone are at issue in the Patel case, is likely to involve both public cost and personal hardship or indignity.
+The Secretary of State does not thwart the policy of the Act if she proceeds in the first instance on the basis that unlawful overstayers should be allowed to leave of their own volition (as on the evidence the great majority do).
+The Upper Tribunal observed in the present case, commenting on its concerns at the implications of the decision in Sapkota: For every person whose real claim is one outside the Rules, there are many who merely want a decision in accordance with the Rules and would either voluntarily depart or make a fresh application if that appeal were to be unsuccessful.
+Further, the developing jurisprudence of the Upper Tribunal has moved beyond the proposition that human rights only arise on removal decisions, to cases where variation of leave applications may need to take into account a wide variety of aspects of private life under article 8 rights, thereby enabling an independent assessment of this claim to remain without the person concerned running the risk of breaking the law. (para 32)
+It follows that 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 that the actual decision was not invalidated by the failure to do so.
+In so far as the decisions of the Court of Appeal in the cases of Mirza and Sapkota indicate the contrary, they were in my view wrongly decided.
+It is unnecessary to consider whether the Court of Appeal was entitled as a matter of precedent to depart from them.
+No such inhibition affects this court.
+The Alam/Anwar appeals
+I have set out above the agreed issues said to arise in these appeals.
+The practical problem faced by the appellants arises from their failure to produce relevant information as required under the Points Based System at the relevant time.
+Each appellant was able to adduce the relevant evidence in response to the section 120 notice, but was barred by exception 2 of section 85A from relying on it directly in support of his appeal.
+The issue in short is whether an indirect route could be found to achieve a favourable result.
+The proposed route depends on using the evidence before the tribunal in support of a putative appeal against the refusal of leave to remain, relying not on the rules, but on human rights grounds (article 8 of the Convention), and thus taking it outside the scope of exception 2.
+This in turn depends on two propositions: first, that the tribunal was obliged to consider the new evidence in that context (scope of appeal), 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 (merits of appeal).
+I would accordingly dismiss the Patel appeals.
+Scope of appeal
+The first issue was the subject of detailed discussion in AS (Afghanistan) v Secretary of State for the Home Department [2011] 1 WLR 385.
+The Court of Appeal by a majority held that section 85(2) was to be construed as imposing a duty on the tribunal to consider any potential ground of appeal raised in response to a section 120 notice, even if it was not directly related to the issues considered by the Secretary of State in the original decision.
+In AQ (Pakistan) v Secretary of State for the Home Department [2011] EWCA Civ 833; [2011] Imm AR 832), it was held that majoritys approach did not require consideration of events subsequent to the Secretary of States decision.
+That issue does not arise in the present cases, where the new evidence related to material which was available at the time of the decisions.
+Turning to the judgments in AS itself, it would be difficult to expand on or improve the depth of legal and contextual analysis to be found in the judgments of all three judges.
+The fact that the analysis led such experienced judges to opposite conclusions suggests that the path to enlightenment will not be found by attempting a similar exercise in this judgment.
+The problem lies in the drafting of the relevant provisions, which defies conventional analysis.
+It is not only obscure in places and lacking in detail, but contains pointers in both directions.
+On the one hand, the words against the decision appealed against in section 85(2) suggest a focus on the content of the original decision.
+As Arden LJ said: A ground of appeal is not a ground of appeal against the decision appealed against if it would not, if accepted, lead to its reversal, as opposed to its being superseded by a new decision on the new evidence that leave to enter or remain should be granted. (para 30) On the other hand the first ground of appeal under section 84(1) is that the immigration decision is not (not was not) in accordance with the Rules; and in considering that question the tribunal is specifically empowered (subject to the exceptions in section 85A) to have regard to evidence concerning a matter arising after the date of appeal.
+Moore Bick LJ (with whom Sullivan LJ agreed) thought that the reference to the decision appealed against did not imply a limitation to the original grounds.
+Having decided that the decisions referred to sections 85(1) and (2) were immigration decisions of the kind identified in section 82(1), he said at para 79: . the natural meaning of these provisions is to impose on the tribunal a duty to consider matters raised by the appellant insofar as they provide grounds for challenging a substantive decision of a kind identified in section 82 that affects his immigration status.
+On the face of it they do not restrict that duty to considering grounds that relate to the reasons for that decision or to the original grounds of appeal.
+There was a similar lack of agreement on the effect of section 85(4), and in particular of the reference to matters relevant to the substance of the decision appealed against.
+That seems a curiously ambiguous term, which can fairly be read as referring either to the substantive effect of the decision or to the substantive reasons underlying it.
+Arden LJ took the latter view, which she saw as supporting her interpretation of section 85(2) (paras 31 2).
+At para 30 she adopted as plainly correct the approach of the Asylum and Immigration Tribunal (EA (Nigeria) v Secretary of State for the Home Department [2007] UKAIT 00013), which had read these words as meaning that the new evidence had to be relevant to the decision actually made, and had added at para 6 that: a decision on a matter under the Immigration Rules is a decision on the detailed eligibility of an individual by reference to the particular requirements of the rule in question in the context of an application that that person has made.
+Sullivan LJ took the opposite view, seeing section 85(4) as consistent with his view that the tribunals consideration was not limited to the grounds considered by the Secretary of State: Since section 85(2) is concerned with statements of additional grounds which must include any reasons why an appellant should be allowed to remain, and which are expressly not confined to the reasons why he should be allowed to remain under rule x of the Rules, I am not persuaded that the reference to the decision appealed against must be a reference to the decision to refuse to vary leave to remain under rule x, rather than the decision to refuse to vary leave to remain, being one of the immigration decisions as defined by section 82 (2).
+Such an approach to section 85 (2) would be consistent with the reference in section 85 (4) to the substance of the decision. (para 113)
+Moore Bick LJ thought that section 85(4) itself had little bearing on the issues before the court, since it was concerned only with the evidence which the tribunal could consider (para 83).
+However, his understanding of the word substance in this context, agreeing with that of Sullivan LJ, is apparent from his earlier discussion of the appropriate response to a section 120 notice.
+He saw its purpose as to impose on the appellant a duty to put forward any grounds he may have for challenging the substance of the decision made against him, rather than simply the grounds on which it was made (para 80, emphasis added).
+The broader approach of the majority seems to me to gain some support from the scheme of section 3C, under which (as is common ground) the initial application for leave to remain, if made in time, can later be varied to include wholly unrelated grounds without turning it into a new application or prejudicing the temporary right to remain given by the section.
+Thus the identity of the application depends on the substance of what is applied for, rather than on the particular grounds or rules under which the application is initially made.
+The same approach can be applied to the decision on that application, the identity or substance of which in the context of an appeal is not dependent on the particular grounds first relied on.
+It is of interest that, at an earlier stage, the broader approach seems to have
+accorded with the reading of those responsible within the Home Office for advice to immigration officers.
+The Immigration Directorates Instructions, issued in September 2006, noted that it was not possible under section 3C to make a second application, but continued: On the other hand, it is possible to vary the grounds of an application already made, even by introducing something completely new.
+A student application can be varied so as to include marriage grounds.
+If an application is varied before a decision is made, the applicant will be required to complete the necessary prescribed form to vary his application.
+If an application is varied post decision, it would be open to the applicant to submit further grounds to be considered at appeal Once an application has been decided it ceases to be an application and there is no longer any application to vary under section 3C(5).
+So any new information will fall to be dealt with during the course of the appeal rather than as a variation of the original application. (para 3.2 emphasis added)
+The same approach is supported by the current edition of Macdonalds Immigration Law & Practice 8th ed (2010) para 19.22 (under the heading The tribunal as primary decision maker).
+The only implicit criticism made of the majority approach in AS is that it did not go far enough.
+They observe that even without a section 120 notice the tribunal should be free to consider any matter including a matter arising after the decision which is relevant to the substance of the decision regardless of whether a one stop notice has been served.
+The substance of the decision is not the decision makers reasoned response to the particular application or factual situation that was before it but is one of the immigration decisions enumerated in section 82 and a matter includes anything capable of supporting a fresh application to the decision maker Whether or not such an extension of the majoritys reasoning can be supported, that passage indicates that the broader approach in itself is not controversial.
+In the end, although the arguments are finely balanced, I prefer the approach of the majority in AS.
+Like Sullivan LJ, I find a broad approach more consistent with the coherence of this part of the Act.
+He noted that the standard form of appeal, echoing the effect of the section 120 notice, urged appellants to raise any additional ground at that stage, on pain of not being able to do so later, and observed: . it seems to me that appellants would have good reason to question the coherence of the statutory scheme if they were then to be told by the AIT that it had no jurisdiction to consider the additional ground that they had been ordered by both the Secretary of State and the AIT to put forward. (para 99)
+Merits of appeal
+The second issue is the materiality to the human rights case of evidence that the appellant could in fact have complied with the rules, even though he failed to do so.
+The argument is that, if it is shown that the appellant could have met the substantive requirements of the rules, the failure to do so should be regarded as purely formal, and that accordingly, in the proportionality balance required by article 8, the objectives of immigration control should carry relatively less weight.
+A variant of this argument, referred to as the near miss principle, is that the degree of failure to meet the requirements of the rules may be relevant in the proportionality balance.
+Support for such an approach is said to be found in the judgment of Sedley LJ (agreed by Rimer and Sullivan LJJ) in Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719; [2011] QB 376.
+The main issue in that case was the extent to which it was permissible for mandatory criteria relevant to the Points Based System to be contained in guidance rather than rules submitted to Parliament under section 3(2) of the 1971 Act.
+That issue has since been considered in the Supreme Court in R (Alvi) v Secretary of State for the Home Department (Joint Council for the Welfare of Immigrants intervening) [2012] UKSC 33; [2012] 1 WLR 2208 and R (New College London Ltd) v Secretary of State for the Home Department (Migrants Rights Network intervening) [2013] UKSC 51, [2013] 1 WLR 2358.
+However Sedley LJ also considered the application of article 8 under such a system.
+He said at paras 45 46: There appears to me, in this situation, to be no escape from the proposition that in exercising her powers, whether within or outside the rules of practice for the time being in force, the Home Secretary must have regard and give effect to applicants' Convention rights.
+This will mean in most cases evaluating the extent and quality of their family and private life in the United Kingdom and the implications, both for them and for the United Kingdom, of truncating their careers here.
+That in turn will require consideration of the significance of the criteria by which their eligibility has been gauged and found wanting.
+It is one thing to expect an applicant to have the necessary academic and linguistic qualifications: here a miss is likely to be as good as a mile.
+It is another for an applicant to fall marginally or momentarily short of a financial criterion which in itself has no meaning: its significance is as a rough and ready measure of the applicant's ability to continue to live without reliance on public funds.
+Having 800 in the bank, whether for three continuous months or simply at the date of application, is no doubt some indication of this; but people who are able to meet the test may fall on hard times after obtaining indefinite leave to remain, and others who fail it would, if allowed to remain, never become a charge on public funds.
+The Home Office has to exercise some common sense about this if it is not to make decisions which disproportionately deny respect to the private and family lives of graduates who by definition have been settled here for some years and are otherwise eligible for Tier 1 entry.
+If the Home Secretary wishes the rules to be blackletter law, she needs to achieve this by an established legislative route.
+The court can be seen in that passage to have endorsed the view that, at least in relation to financial criteria, a near miss (a marginal or momentary shortfall) might affect the consideration of proportionality under article 8.
+That view did not affect the results in any of the cases before it.
+In the only one to which it might have been relevant (Mrs Maleckia), it was held that there was in any event no prospect of success under article 8 (para 53).
+Mr Malik also relies on other cases, before and since, which have adopted a similar approach without reference to Pankina.
+In SB (Bangladesh) v Secretary of State for the Home Department [2007] EWCA Civ 28, the court when allowing an appeal against the tribunals decision on other grounds agreed with them that the fact that the appellant only just failed to qualify for admission was a fact to be counted in her favour.
+Ward LJ, at para 30, adopted the observation of Collins J in Lekstaka v Immigration Appeal Tribunal [2005] EWHC 745 (Admin) para 38 that: one is entitled to see, whether in all the circumstances, this case falls within the spirit of the Rules or the policies, even if not within the letter.
+Ward LJ added: That seems to us to be the right approach.
+As Simon Brown L.J. said in Ekinci at paragraph 16: Even if strictly he fails to qualify so that the ECO would be prohibited from granting leave to enter, given the obvious article 8 dimension to the case the ECO would refer the application to an Immigration Officer who undoubtedly has a discretion to admit someone outside the Rules.
+And if entry were to be refused at that stage, then indeed a section 59 right of appeal would certainly arise in which, by virtue of section 65(3), (4) and (5) the adjudicator would have jurisdiction to consider the appellant's human rights. (I note in passing that those comments of Simon Brown LJ were made with reference to the rather different appeal provisions of the Immigration and Asylum Act 1999, and were directed specifically to a case with an obvious article 8 dimension.)
+More recently, in R (Mansoor) v Secretary of State for the Home Department [2011] EWHC 832 (Admin), Blake J, sitting on this occasion in the Administrative Court, held that on the facts the interference with the applicants family life was such as to make it disproportionate under article 8 to remove her, notwithstanding that she was unable to satisfy a relevant criterion in the rules.
+He said, at para 35 (without specific reference to Pankina): the terms of the immigration rules are not a legitimate aim in their own right A judgment needs to be made as to how significant the aim, and how far the removal of the particular claimant in the circumstances of her case is necessary to promote that aim.
+The mere fact a genuine spouse lawfully admitted with her British citizen husband and settled children can no longer meet one requirement of the rules through no fault of her own is unlikely to amount to a weighty reason to justify interference with family life here that is otherwise to be respected.
+The opposite approach is supported by the judgment of Stanley Burnton LJ (agreed by Maurice Kay and Lewison LJJ) in Miah v Secretary of State for the Home Department [2013] QB 35.
+In that case the applicant was refused leave to remain as a Tier 2 (General) Migrant at a time when he was two months short of the five years continuous residence necessary to support a case for indefinite leave to remain under the rules.
+It was argued that, in assessing whether his removal should be permitted under article 8.2 of the Convention, the weight to be given to the maintenance of immigration controls should be diminished because he had missed satisfying the rules by only a small margin.
+Burnton LJ observed that, as formulated in the skeleton submissions of Mr Malik (appearing for the appellant in that case as in the present), the argument was not so much near miss as sliding scale, by virtue of which There is an inverse relationship between the degree to which there is compliance with the rules and the immigration policy imperative which demands that unsuccessful applicants be removed (paras 9 10).
+In rejecting that argument, Burnton LJ referred to a passage in the speech of Lord Bingham in Huang v Secretary of State for the Home Department [2007] 2 AC 167, in which he discussed the long established and central role of the immigration rules in determining those to whom leave to enter or remain should be granted.
+Although the near miss argument as such was not in issue in that case, Burnton LJ thought it inconsistent with Lord Binghams approach.
+He said at para 14: I find Lord Bingham's reference in para 6 to rules, to be administratively workable, [requiring] that a line be drawn somewhere and in para 16 to the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory to be helpful and generally inconsistent with a near miss principle.
+He referred to two previous Court of Appeal judgments (not cited in Pankina) in which similar arguments had been rejected: Mongoto v Secretary of State for the Home Department [2005] EWCA Civ 751, and R (Rudi) v Secretary of State for the Home Department [2007] EWCA Civ 1326.
+In the latter case, citing Mongoto, I said of the near miss argument: 28.
+This argument is, in my view, based on a misconception.
+The Secretary of State is of course entitled to have a policy.
+The promulgation of the policy normally creates a legitimate expectation that it will be applied to those falling within its scope unless there is good reason for making an exception.
+So much is trite law.
+It is also trite law that the existence of the policy does not excuse the decision maker from due consideration of cases falling outside it.
+However, the law knows no near miss principle.
+There is no presumption that those falling just outside the policy should be treated as though they were within it, or given special consideration for that reason.
+Faced with the conflict between the approach taken in these authorities and that of Pankina Burnton LJ had no difficulty in preferring the former, which he regarded as binding on the court (paras 21 25).
+He could see no principled basis for distinguishing, as Sedley LJ had proposed, between rules to which the near miss principle did and did not apply.
+In particular he disagreed with Sedley LJ that a financial criterion has in itself no meaning, and could therefore be distinguished from other rules, such as those relating to academic qualifications, in respect of which a miss is as good as a mile.
+In conclusion he said at paras 25 26: Finally, quite apart from authority, I prefer the approach stated in Mongotos case and Rudis case.
+A rule is a rule.
+The considerations to which Lord Bingham referred in Huangs case require rules to be treated as such.
+Moreover, once an apparently bright line rule is regarded as subject to a near miss penumbra, and a decision is made in favour of a near miss applicant on that basis, another applicant will appear claiming to be a near miss to that near miss.
+There would be a steep slope away from predictable rules, the efficacy and utility of which would be undermined.
+For these reasons, I would dismiss the appeal in relation to the near miss argument.
+In my judgment, there is no near miss principle applicable to the Immigration Rules.
+The Secretary of State, and on appeal the tribunal, must assess the strength of an article 8 claim, but the requirements of immigration control are not weakened by the degree of non compliance with the Immigration Rules.
+The difference between the two positions may not be as stark as the submissions before us have suggested.
+The most authoritative guidance on the correct approach of the tribunal to article 8 remains that of Lord Bingham in Huang.
+In the passage cited by Burnton LJ Lord Bingham observed that the rules are designed to identify those to whom on grounds such as kinship and family relationship and dependence leave to enter should be granted, and that such rules to be administratively workable, require that a line be drawn somewhere.
+But that was no more than the starting point for the consideration of article 8.
+Thus in Mrs Huangs own case, the most relevant rule (rule 317) was not satisfied, since she was not, when the decision was made, aged 65 or over and she was not a widow.
+He commented at para 6: Such a rule, which does not lack a rational basis, is not to be stigmatised as arbitrary or objectionable.
+But an applicant's failure to qualify under the rules is for present purposes the point at which to begin, not end, consideration of the claim under article 8.
+The terms of the rules are relevant to that consideration, but they are not determinative.
+Thus the balance drawn by the rules may be relevant to the consideration of proportionality.
+I said much the same in Rudi.
+Although I rejected the concept of a near miss principle, I did not see this as inconsistent with the Collins Js words in Lekstaka: Collins J's statement, on which the court relied [in SB], seems unexceptionable.
+It is saying no more, as I read it, than that the practical or compassionate considerations which underlie the policy are also likely to be relevant to the cases of those who fall just outside it, and to that extent may add weight to their argument for exceptional treatment.
+He is not saying that there arises any presumption or expectation that the policy will be extended to embrace them. (para 31(ii)) (My reference to exceptional treatment needs to be read now in the light of Huang para 20 in which Lord Bingham made clear that, contrary to previous Court of Appeal case law, there was no separate test of exceptionality.)
+Although the context of the rules may be relevant to the consideration of proportionality, I agree with Burnton LJ that this cannot be equated with a formalised near miss or sliding scale principle, as argued for by Mr Malik.
+That approach is unsupported by Strasbourg authority, or by a proper reading of Lord Binghams words.
+Mrs Huangs case for favourable treatment outside the rules did not turn on how close she had come to compliance with rule 317, but on the application of the family values which underlie that rule and are at the heart also of article 8.
+Conversely, a near miss under the rules cannot provide substance to a human rights case which is otherwise lacking in merit.
+It is important to remember that article 8 is not a general dispensing power.
+It is to be distinguished from the Secretary of States discretion to allow leave to remain outside the rules, which may be unrelated to any protected human right.
+The merits of a decision not to depart from the rules are not reviewable on appeal: section 86(6).
+One may sympathise with Sedley LJs call in Pankina for common sense in the application of the rules to graduates who have been studying in the UK for some years (see para 47 above).
+However, such considerations do not by themselves provide grounds of appeal under article 8, which is concerned with private or family life, not education as such.
+The opportunity for a promising student to complete his course in this country, however desirable in general terms, is not in itself a right protected under article 8.
+The present appeals
+I have discussed the respective arguments on this point in some detail
+because of its general importance and the conflicting statements found in some of the judgments.
+However, I can deal relatively shortly with the two cases before us.
+The near miss argument was not advanced in the same form before the Court of Appeal, apparently because it was thought to be precluded by Miah.
+Even if otherwise well founded, it is not in my view available to Mr Anwar, since no separate human rights grounds were advanced on his behalf before either tribunal.
+So the issue as to whether the tribunal would have been obliged to consider them, and with what effect, did not arise.
+In Mr Alams case the human rights case was considered at both levels, but ultimately failed before the Upper Tribunal on its merits.
+The Upper Tribunal fairly gave some weight to the unusual circumstances in which he had lost his ability to rely on the new evidence (as a result of a change in the rules after the start of the appeal).
+But there was little or nothing to weigh on the other side of the balance, apart from 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.
+I see no error in the approach of the Upper Tribunal.
+Conclusion
+For these reasons, I would dismiss all three appeals.
+LORD MANCE (with whom Lord Kerr, Lord Reed and Lord Hughes agree)
+I would also dismiss these appeals for the reasons given by Lord Carnwath.
+Anything that we say about AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076, [2011] 1 WLR 385 is obiter, since in the case of Anwar no separate human rights ground was advanced in either tribunal and in the case of Alam the Upper Tribunal held correctly that there is nothing in any human rights point that was raised.
+If we were to disagree with the majority approach in AS, that would raise a problem of precedent for lower courts, but since I would on balance also favour leaving the majority view undisturbed, that problem does not arise.
+In fact, it appears that the whole area of appeals is likely to be reshaped by the Immigration Bill 2013 (HC Bill 110), so that the majority approach in AS and any view we express about the correct approach are likely to become irrelevant in future cases.
+The issue arising under section 85(2) of the Nationality, Immigration and Asylum Act 2002 which was addressed in AS is undoubtedly a difficult and very arguable one, and the arguments for and against the rival approaches are comprehensively discussed in AS.
+As I see it, the essential question was well defined by Sullivan LJ at paras 111 113.
+It is whether the decision appealed against to which section 85(2) refers is the generic decision to refuse leave to remain (i.e. in the present cases, within section 82(2)(d)), or the particular decision to refuse leave under a particular head, for example under a particular rule of the Immigration Rules or on a Human Rights ground.
+The majority approach in AS does not mean that section 85(2) enables an appellant, who has sought leave to remain, to go outside the scope of a leave to remain application by adding or substituting an appeal under a different head of section 82(2), e.g. by asserting a wrongful refusal of entry clearance or of a certificate of entitlement: see sections 82(2)(b) or (c)).
+To that extent, it seems to me that the majority approach is not open to the criticism that it amounts to re reading section 85(2) as if it used the words against a decision of a kind listed in section 82(2) or omitted the words against the decision appealed against altogether.
+Where the Secretary of State chooses to give a section 120(2) notice, the aim is to flush out any new (a) reasons for wishing to enter or remain and/or (b) grounds for being permitted to enter or remain and/or (c) grounds for not being removed or required to leave the UK.
+The statement in response need not repeat reasons or grounds set out in the existing application or decision which is the occasion for giving the notice: section 120(3).
+When section 85(2) requires the Tribunal to consider any matter raised in the [section 120] statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against, it is therefore referring to new reasons or grounds not previously covered by the decision appealed against.
+So long as they [constitute] a ground of appeal of a kind listed in section 84(1), they can be relied upon.
+By inference, it can be said, it is or becomes legitimate to treat them as constituting a ground of appeal, even though they were not raised before or decided by the Secretary of State.
+So, instead of relying on the Immigration Rules to justify leave to remain, an appellant can rely on a Human Rights ground, as Alam sought to do.
+And in AS itself, it would follow that the majority was correct to hold that an appellant could invoke a different Immigration Rule to justify leave to remain in the case of AS herself: that she qualified under the International Graduate Scheme, rather than as a person intending to establish herself in business, in the other case of NV, on the basis that she had ten years residence, rather than on the basis that she was a student.
+Section 3C(4) of the 1971 Act certainly provides some forceful arguments to the contrary of the majority conclusion in AS.
+But I am inclined to think that Moore Bick and Sullivan LJJ deal sufficiently in their paras 84 86 and 102 with the problem of reconciling their conclusion with section 3C(4).
+Essentially, it is up to the Secretary of State to decide whether to serve a section 120 notice.
+It is true that the majority approach to section 85(2) means that an applicant may open up issues which would otherwise be closed, at least until conclusion of the existing appeal (after which the applicant, if unsuccessful in the appeal, would be an overstayer).
+But it does at the same time close down some further applications which the appellant might, whether as an overstayer or from abroad, make.
+The fact that the Tribunal will, in a wider area, become primary decision maker appears to me relatively indecisive, bearing in mind that it anyway acts as decision maker in some significant areas.
+The overlap argument advanced by Sullivan LJ at para 106 also seems to me relevant, if one is considering the advantages and disadvantages of each solution.
+help identify at what level of detail that decision is to be considered.
+On the other hand, I am not persuaded that there is anything in the substance point based on section 85(4).
+Moore Bick LJ (para 83), rather than Sullivan LJ (para 113) was in my view right on this.
+Section 85(4) is dealing only with evidence which goes to the substance (heart) of the decision, but does not
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+This appeal concerns the proper ambit of the offence of aggravated trespass contrary to section 68 of the Criminal Justice and Public Order Act 1994 (the 1994 Act).
+That section provides, so far as material: (1) A person commits the offence of aggravated trespass if he trespasses on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land, does there anything which is intended by him to have the effect (a) of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity, (b) of obstructing that activity, or (c) of disrupting that activity (2) Activity on any occasion on the part of a person or persons on land is lawful for the purposes of this section if he or they may engage in the activity on the land on that occasion without committing an
+offence or trespassing on the land
+The present case concerns trespassers who wished to make a protest, as do some other reported cases upon this section.
+But the offence is not limited to such people.
+Those who trespass and obstruct the activity of others might include many in different situations, such as for example business rivals or those engaged in a personal dispute, as maybe between neighbours.
+By definition, trespass is unlawful independently of the 1994 Act.
+It is a tort and committing it exposes the trespasser to a civil action for an injunction and/or damages.
+The trespasser has no right to be where he is.
+Section 68 is not concerned with the rights of the trespasser, whether protester or otherwise.
+References in the course of argument to the rights of free expression conferred by article 10 of the European Convention on Human Rights were misplaced.
+Of course a person minded to protest about something has such rights.
+But the ordinary civil law of trespass constitutes a limitation on the exercise of this right which is according to law and unchallengeably proportionate.
+Put shortly, article 10 does not confer a licence to trespass on other peoples property in order to give voice to ones views.
+Like adjoining sections in Part V of the 1994 Act, section 68 is concerned with a limited class of trespass where the additional sanction of the criminal law has been held by Parliament to be justified.
+The issue in this case concerns its reach.
+It must be construed in accordance with normal rules relating to statutes creating criminal offences.
+Under the section there are four elements to this offence: i) the defendant must be a trespasser on the land; ii) there must be a person or persons lawfully on the land (that is to say not themselves trespassing), who are either engaged in or about to engage in some lawful activity; iii) iv) which is intended by him to intimidate all or some of the persons on the land out of that activity, or to obstruct or disrupt it. the defendant must do an act on the land; The present case concerns the second element and in particular the meaning of any lawful activity.
+Given that by subsection (2) an activity is lawful if those on the land may engage in it without committing a criminal offence, what connection if any is required between any offence which may be committed and the activity which the defendant is said to have intentionally disrupted (etc)? Is any offence committed on the land, however remote from or incidental to the occupants activity, or however technical, a bar to the conviction of the invading trespasser?
+The defendants mounted a non violent but determined protest in a London shop.
+They objected to the shop because its wares were connected with an Israeli owned business in the West Bank.
+The shop specialised in selling beauty products derived from Dead Sea mineral material.
+Not all the products sold in the shop originated from the Dead Sea but the vast majority did.
+The defendants objection was grounded in the facts that (i) those products were produced by an Israeli company, in an Israeli settlement adjacent to the Dead Sea in the West Bank, that is to say in the Occupied Palestinian Territory (OPT) and (ii) the factory was said to be staffed by Israeli people who had been encouraged by the Government of Israel to settle there.
+The defendants arrived at the shop on a trading day, equipped with a heavy concrete tube.
+With the help of colleagues they connected their arms through the tube anchored by a chain secured by a padlock to which they said they had no key.
+The district judge found that they had no intention of buying anything; rather, their intention was to disrupt the shops trading.
+When asked to leave they failed to do so.
+They succeeded in their aim because the manager concluded that trading was impossible and closed the shop.
+She called the police.
+The police found the defendants polite and co operative except in refusing to free themselves.
+It was necessary for tools to be used to break through the concrete.
+When the defendants had thus been released, they were arrested and in due course charged with the offence contrary to section 68.
+The Crown case was that the lawful activity which they had intentionally disrupted was retail selling.
+The defendants had no defence to elements (i), (iii) and (iv) of the offence.
+They contested the charge on the basis that the activity being carried on in the shop was not lawful.
+They asserted that it involved the commission of criminal offences for one or more of four reasons. i) The company running the shop was guilty of aiding and abetting the transfer by the Israeli authorities of Israeli citizens to a territory (the OPT) under belligerent occupation; the transfer was said to be contrary to article 49 of the Fourth Geneva Convention of August 1949, and aiding and abetting it to be an act ancillary to a war crime, made a criminal offence in England and Wales by sections 51 and 52 of the International Criminal Court Act 2001. ii) The products sold in the shop were criminal property, as the product of this offence of aiding and abetting a war crime; accordingly the company running the shop, which at least suspected this, was guilty of the offence of using or possessing criminal property, contrary to section 329 of the Proceeds of Crime Act 2002. iii) The products had been imported into the UK as if covered by an EC Israeli Association Agreement, which conferred certain tax or excise advantages.
+But the European Court of Justice has ruled that products originating in the OPT do not qualify for this treatment.
+Accordingly, it was said, the company running the shop was guilty of the offence of cheating the Revenue. iv) The products sold in the shop were labelled Made by Dead Sea Laboratories Ltd, Dead Sea, Israel.
+This was said to be false or misleading labelling because the OPT is not recognised internationally or in the UK as part of Israel.
+Accordingly the company running the shop was guilty of one or both of two labelling offences, contrary to the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277) or the Cosmetic Products (Safety) Regulations 2008 (SI 2008/1284).
+The district judge convicted the defendants in the magistrates court.
+Their appeal by case stated was dismissed by the Divisional Court of Queens Bench.
+One part of the district judges reasoning was not upheld by the Divisional Court, for he had held that only the activity of a natural person fell within section 68, and that neither the shop manageress nor the sales assistants were even arguably guilty of any offence.
+The Divisional Court rightly held that section 68 plainly included a company within the expression person engaging in (lawful activity).
+Its conclusions on that issue are not challenged and no more need be said about it.
+The live issue relates to the meaning of the expression lawful activity and in particular to when the commission of a criminal offence by the occupant whose activity is targeted by the trespasser has the effect of making unlawful the occupants activity.
+The question certified by the Divisional Court was: Should the words lawful activity in section 68 Criminal Justice and Public Order Act 1994 be limited to acts or events that are integral to the activities at the premises in question?
+Lawful activity
+The meaning of the expression lawful activity in section 68(2) has received some previous attention from the courts.
+Three propositions were not in dispute in argument in the present case. i) Section 68 is concerned only with a criminal offence against the law of England and Wales.
+The House of Lords so held in R v Jones (Margaret) [2006] UKHL 16, [2007] 1 AC 136.
+Thus a defendant trespassing at a military base was not entitled to assert that the ordinary activities of the base were unlawful because the UK Government was, or might be, committing an act of international aggression in preparing to despatch military hardware to Iraq. ii) In a prosecution under section 68 the Crown is not required to disprove the commission of every criminal offence which could conceivably be committed by the occupant(s) of the land.
+A specific offence or offences must be identified by the defendant and properly raised on the evidence.
+The Divisional Court so held in Ayliffe v Director of Public Prosecutions [2005] EWHC 684 (Admin), [2006] QB 227, see particularly para 50.
+Thus a bare assertion by trespassers at military bases that the Government may have aided and abetted a war crime did not raise the issue. iii) Where, however, the issue of a relevant specific criminal offence by the occupant(s) of the land is fairly raised by evidence, the onus lies upon the Crown to disprove it to the criminal standard of proof, in order for it to prove, to that standard, that the defendant trespasser has committed the offence contrary to section 68.
+This follows from Ayliffe and from the language of the statute.
+Two other cases give some assistance on the question of whether any criminal offence committed by the occupants has the effect of making the activity unlawful.
+In Hibberd v Director of Public Prosecutions (unreported) 27 November 1996 the Divisional Court was concerned with a trespasser who set out to stop the clearance of land for the construction of a new by pass.
+He gave evidence that one or more of the tree fellers was using a chainsaw but not wearing gloves and suggested that that raised the real possibility that he was committing an offence contrary to the Management of Health and Safety at Work Regulations 1992 (SI 1992/2051) in not using equipment provided for him by his employers.
+Without investigating whether any such offence was or was not made out, the Divisional Court held that even if it had been it could not affect the lawful nature of the activity which the defendant had disrupted, namely the clearance of the site.
+That was lawful in the sense that it was properly authorised.
+The activity of the occupants could not be defined simply to extend to the actions of the particular chainsaw operator(s) spotted.
+Two years later in Nelder v Director of Public Prosecutions The Times, 11 June 1998 a different Divisional Court considered the case of hunt saboteurs who set out to disrupt a hunt.
+They adduced evidence that at the outset of the hunt, two whippers in had strayed from the land over which the hunt had permission to ride and had taken the hounds onto adjacent land where they had no such permission.
+The trespassing defendants had actively disrupted the actions of all the hunt, not confined to the strayers, and had continued to do so after the latter had rejoined the main body of hunters.
+In this case the relevant part of section 68 was the concluding words of section 68(2), trespassing occupants rather than occupants committing a criminal offence, but the two limitations upon the concept of lawful activity are clearly in similar case.
+The court held that the fact that some few members of the hunt had acted unlawfully by trespassing on adjoining land did not affect the lawfulness of the activity which the defendants had disrupted.
+Simon Brown LJ offered the suggestion that it might have been otherwise if either the hunts central objective had been to hunt over land where it had no authority to be, or the defendants had confined their disruption to activity by the strayers.
+Each of those cases illustrates the problem posed by the wording of section 68(2).
+Part of the difficulty arises from the use of the word may in the definition of lawful activity: Activityis lawfulif he or they may engage in the activitywithout committing an offence or trespassing on the land.
+For the Crown, Mr Penny revived, although not at the heart of his submissions, the argument previously ventilated in Ayliffe, that this means that an activity remains lawful even if an offence is committed, providing that the activity could have been accomplished without the offence.
+It may be noted that if that were the correct construction it would have provided a complete answer to the appeals in both Hibberd and Nelder.
+Although this might on the face of the statutory language be a possible construction, it would deprive the defence of most of its force; it would mean that even if the occupants were engaged in a thorough going criminal act which represented their central purpose in being on the land, the defence would not operate if they could have altered the way they did things so as to do them lawfully.
+It would have the effect of treating as lawful something which was anything but lawful, and of examining not the activity which was actually carried out, but an activity which was not.
+That construction was rejected by the Divisional Court in Ayliffe at para 52, and also by the Divisional Court in the present case, at para 29.
+The true meaning of section 68 must be found despite the use of the word may, which was perhaps employed because the section has to apply to activity by the occupant which has not yet commenced.
+The true meaning lies in examining the activity which was (or was to be) carried out on the land.
+In argument in the present case, neither side contended that every criminal offence committed on the land provides the defendant with an escape from the section.
+For the appellants, Mr Southey QC accepted that if, for example, it had turned out that in the present case there was an employee in the shop who was paid something less than the national minimum wage, that would not render the activity of the shop unlawful for the purposes of section 68.
+Such a merely collateral offence would not provide the defendants with a fortuitous defence.
+His proposed solution to the problem was that the section defines activity by reference to the particular feature of the occupants acts against which the defendant was protesting or objecting.
+So, he contended, if the defendant made his objection to low wages, the fact that the whole of the rest of the shops activity was entirely lawful would matter not, but unless this was the defendants focus, the collateral offence against wage regulation would be irrelevant.
+That, however, is to turn section 68 upside down.
+True it is that section 68(1) requires the defendants act to be done with the intention of disrupting (etc) the lawful activity of the occupant, but it calls first for a finding as to the lawful activity, and only then asks whether that is what the defendant intended to disrupt (etc).
+The section cannot be read in the way suggested.
+Mr Southeys contention suggests an enquiry not into what the defendant intends, for he clearly intends to disrupt the whole activity, but rather into his motive or ulterior purpose for intending it.
+Moreover, this suggested construction is open to an objection similar to that lying against the one rejected in Ayliffe (para 11 above); it would direct the court away from the activity actually carried out by the occupants, in this case into the mind of the defendant.
+Just as the argument rejected in Ayliffe would enable the Crown or the occupant to choose which activity to rely upon, however remote from what he was actually doing, so this construction would bestow a similar bounty upon the defendant.
+The intention of the section is plainly to add the sanction of the criminal law to a trespass where, in addition to the defendant invading the property of someone else where he is not entitled to be, he there disrupts an activity which the occupant is entitled to pursue.
+Section 68(2) therefore must mean that the additional criminal sanction is removed when the activity which is disrupted is, in itself, unlawful, which may be either because the occupant is himself trespassing, or because his activity is criminal.
+Mr Southeys realistic concession is correct, for not every incidental or collateral criminal offence can properly be said to affect the lawfulness of the activity, nor to render it criminal.
+It will do so only when the criminal offence is integral to the core activity carried on.
+It will not do so when there is some incidental or collateral offence, which is remote from the activity.
+The decisions in Hibberd and Nelder are both consistent with this approach.
+The certified question ought thus to be answered Yes.
+This was the general approach of the Divisional Court in this case, as the terms of the certified question show.
+However, as may occur in an extempore judgment, some of its language ranged more widely than required.
+To the extent that it spoke in para 29 of the defence being confined to the case where the activity is patently unlawful, that latter expression needs to be understood to mean that the criminal offence must be integral to the core activity of the occupant and not collateral to or remote from it.
+It does not mean that the illegality must be so obvious as not to call for more than the barest enquiry.
+The Divisional Court was also concerned at the potential breadth of enquiry which might be required of the court of trial, usually the magistrates court, especially where, as here, the defence raises potentially far reaching questions concerning international political events.
+That found expression in para 27 as follows: As Waller LJ said in Ayliffeit is enough for the prosecution to show that the activity in question is apparently lawful.
+If then the defendant seeks to raise an issue to the contrary within the section 68 proceedings he mustdo so by reference to facts or events inherent in the activity itself.
+He cannot rely on the assertion of extraneous facts whose effective investigation would travel into contexts and controversies which are markedly remote from what is actually being done by way of the activities in question.
+It is correct that section 68(2) does not arise in the case of an apparently lawful activity unless and until it is raised on the evidence (Ayliffe).
+It is also correct that a criminal offence, if raised on the evidence, will be relevant to section 68(2) only if it is integral to the core activity in question.
+But if it is, it may yet involve investigation of extraneous events.
+The Divisional Court expressly, and correctly, accepted at para 30 that guilt of a war crime might in theory at least qualify.
+Other less grave alleged offending may also involve investigation of the assertion that it has occurred.
+It does sometimes fall to magistrates to examine matters of complexity and occasionally of international import; so long as the issue is not a non justiciable one such as the nations foreign policy as in Jones, there is no inhibition on their doing so and they will no doubt constitute themselves appropriately if necessary.
+Nor should the court of trial be inhibited from doing so, if the case requires it, by consideration of the fact that a finding may be made against the occupant of the land, such as the shopkeeper here, who is not a party to the trial.
+The only finding that might be made is that the Crown has not made out its case because there appears to have been an activity on the land which is not proved to have been lawful.
+That is not a conviction of the absent shopkeeper, nor in any sense a finding binding upon him.
+Decisions may sometimes have to be made in all manner of criminal proceedings which involve consideration of the actions of non parties an obvious case is where the defendant blames a third party for the offence.
+The application of these principles to the present case demonstrates that the conclusions of both the district judge and the Divisional Court were correct and that the defendants were rightly convicted.
+The war crime argument
+Section 51 of the International Criminal Court Act 2001 renders genocide, a war crime and a crime against humanity domestic offences against the criminal law of England and Wales.
+It applies wherever the offence was committed if the offender was resident in the UK.
+Section 52 of the same Act does the same for conduct ancillary to such a crime, and such conduct includes, via section 55, aiding, abetting, counselling or procuring the commission of the principal offence.
+A war crime is defined in article 8(2)(b) of Schedule 8 to the Act to include: (viii) the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies That offence derives, as the defendants said, from the Fourth Geneva Convention of August 1949 relating to the protection of civilians in time of war.
+If therefore a person, including the shopkeeper company, had aided and abetted the transfer of Israeli civilians into the OPT, it might have committed an offence against these provisions.
+There was, however, no evidence beyond that a different company, namely the manufacturing company, had employed Israeli citizens at a factory in the West Bank and that the local community, which held a minority shareholding in that manufacturing company, had advertised its locality to prospective Israeli settlers.
+It is very doubtful that to employ such people could amount to counselling or procuring or aiding or abetting the Government of Israel in any unlawful transfer of population.
+Such an employer might be taking advantage of such a transfer, but that is not the same as encouraging or assisting it.
+Even if that company could have been aiding and abetting such transfer, that cannot amount to an offence by the separate retailing company, whatever the corporate links between the two companies.
+And even if the companies had been the same, such a crime of assistance was not an integral part of the activity carried on at the shop, which was retail selling.
+On the contrary, it was antecedent to, and remote from, the selling.
+The selling was perfectly lawful.
+The defendants, for their own reasons, elected to trespass and to stage a sit in which was intended to (and did) stop that lawful activity in its tracks.
+They thereby committed the offence under section 68.
+The supplemental contention that the shopkeeper company was committing a money laundering offence fails for the same reasons.
+The suggested money laundering is the possession and use (by selling) of the products of the West Bank factory.
+Those products were said to be criminal property because they were the benefit of the criminal conduct of the factory owning company and thus within section 326(4) of the Proceeds of Crime Act 2002.
+If, however, there was no aiding and abetting of the unlawful movement of population, the products of the factory could not be property obtained by or in return for criminal conduct (section 242 of the Proceeds of Crime Act 2002).
+Even if there had been aiding and abetting, and assuming that it could properly be said that the shopkeeping company suspected this to be the case, the criminal property offence could not be said to be integral to the activity of selling; it was on any view a collateral matter which did not render selling unlawful.
+The cheating the Revenue argument
+For similar reasons it is clear that even if the shops stock had been imported into the UK under favourable terms reserved for goods properly deriving from Israel as distinct from those produced in the OPT (as to which there is no evidence), this could not render their subsequent sale in the shop unlawful.
+At most, it means that the importer is liable to repay the Revenue any duty which ought to have been paid but was not.
+This is a classic example of a collateral, and in this case an antecedent and remote, offence which does not affect the lawfulness of the core activity of the shop, namely retail selling.
+On the assumption that it was committed by the shop company, it would provide the defendants with no defence to the offence under section 68.
+The argument from labelling offences
+The principal offence relied upon was one contrary to the Consumer Protection from Unfair Trading Regulations 2008.
+These were made to transpose the EU Unfair Commercial Practices Directive 2005/29/EC.
+The relevant offence is under regulation 9, and consists of engaging in a commercial practice which is a misleading action as defined by regulation 5.
+In its turn, regulation 5 provides that a commercial practice is a misleading action if (inter alia): (2)(a) it contains false information and is therefore untruthful in relation to any of the matters in paragraph (4) or if it or its overall presentation in any way deceives or is likely to deceive the average consumer in relation to any of the matters in that paragraph, even if the information is factually correct; and (b) it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.
+The paragraph 4 relevant matters include the geographical or commercial origin of the product.
+Thus the argument before the district judge was that the products sold in the shop were mislabelled as to geographical origin in that they were labelled as Made by Dead Sea Laboratories Ltd, Dead Sea, Israel.
+That amounted, it was said, to representing that they came from Israel when they did not, because they came from the OPT.
+This regulation does not, it should be observed, make the selling of mislabelled goods an offence.
+If the offence is committed, the seller is guilty, but the sale is not itself an offence; rather it is the application of the misleading description.
+That suggests that the offence is collateral to the activity of selling, rather than integral to it.
+However, of the offences postulated by the defendants, this one comes closest to the core activity of selling undertaken by the shop on the occasion of the defendants trespass.
+In the event, it is not necessary to resolve the question whether this offence is integral to the activity of selling or not.
+The district judge found that even if the other elements of the offence were made out the additional condition required by regulation 5(2)(b) could not be established.
+There was no basis for saying that the average consumer would be misled into making a transactional decision (ie into buying the product) when otherwise she would not have done, simply because the source was described as being constitutionally or politically Israel when actually it was the OPT: the source was after all correctly labelled as the Dead Sea.
+The district judge found that: Whether or not the information given is falseI consider that the number of people whose decision whether or not to buy a supposedly Israeli product would be influenced by knowledge of its true provenance would fall far below the number required for them to be considered as the average consumer.
+If a potential purchaser is someone who is willing to buy Israeli goods at all, he or she would be in a very small category if that decision were different because the goods came from illegally occupied territory.
+That finding was clearly open to the district judge on the evidence and is fatal to the contention that the offence was committed.
+The Cosmetic Products (Safety) Regulations 2008 were made to transpose a different EU Directive (76/768/EEC as amended).
+Regulation 12(1)(a) provides that no person shall supply a cosmetic product unless the following information is displayed in indelible and legible lettering: the name or style and the address or registered office of the manufacturer or the person responsible for marketing the cosmetic product who is established within the EEA.
+Where the cosmetic product is manufactured outside the EEA, the country of origin must also be specified.
+As the district judge found, the objective of these Regulations is clearly safety of the consumer.
+They require the provision of information about the manufacturer, so that the consumer knows whom to pursue in the event of complaint.
+Within the EEA the name of the manufacturer is enough.
+If the manufacturer is outside the EEA, then the country must also be identified.
+These products were accurately labelled as coming from the Dead Sea and it is not suggested that the manufacturer was not identified.
+The alleged inaccuracy relates to the political status of the Dead Sea area from which they are identified as coming.
+As the district judge rightly said, the Regulations are not directed at disputed issues of territoriality, however important those may be in other contexts.
+It is doubtful that any offence under these Regulations was shown, but if it was, there can be no doubt that it was not integral to the activity of the shop in selling the products, but at most collateral to it.
+Conclusion
+Should the words lawful activity in section 68 Criminal Justice and Public Order Act 1994 be limited to acts or events that are integral to the activities at the premises in question? It should be answered yes.
+The appeal must in consequence be dismissed.
+It follows that of the postulated offences all were either not demonstrated to have been committed by the occupants of the shop at the time of the defendants trespass or were at most collateral to the core activity of selling rather than integral to that activity.
+The occupants of the shop were, accordingly, engaged in the lawful activity of retail selling at the time and section 68(2) provided no defence to the defendants.
+The certified question was as follows:
diff --git a/UK-Abs/train-data/judgement/uksc-2012-0208.txt b/UK-Abs/train-data/judgement/uksc-2012-0208.txt
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+These appeals raise issues as to the respective duties of the Secretary of State and the First tier Tribunal, on an appeal against refusal of an application to vary leave to enter or remain under the Immigration Act 1971, more particularly as to the operation of the so called one stop procedures.
+The Master of the Rolls (para 40), echoing words of Jackson LJ, described the law in this field as an impenetrable jungle of intertwined statutory provisions and judicial decisions.
+It is difficult to disagree, although on this occasion the judiciary must share some of the blame.
+The Patels
+Mr Patel and his wife arrived from India in the United Kingdom on 24 March 2009.
+He had been granted leave to enter as a working holiday maker until 6 March 2011, and she as his dependent wife.
+Their only child was born here in 2010.
+On 26 February 2011, they applied for further leave to remain in the UK, relying on article 8 of the European Convention on Human Rights, and rule 395C of the Immigration 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 United Kingdom.
+They had a right of appeal to the First tier Tribunal, but that was dismissed on 14 July 2011.
+The merits of the refusal on the issues there raised are no longer in dispute.
+On further appeal to the Upper Tribunal they took a new point.
+This was that, in the light of the decision of the Court of Appeal in R (Mirza) v Secretary of State for the Home Department [2011] EWCA Civ 159, [2011] Imm AR 484, followed in Sapkota v Secretary of State for the Home Department [2011] EWCA Civ 1320, [2012] Imm AR 254, 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, which failed before the Upper Tribunal and the Court of Appeal, is the principal issue in this court.
+Mr Alam
+Mr Alam, a citizen of Bangladesh, entered the country 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.
+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, as required by the guidance under the Points Based System, show that he had held the necessary level of funds for a consecutive period ending no more than one month before the application.
+By the time of the hearing before the tribunal, on 10 June 2011, he had produced the appropriate bank statements.
+The tribunal held that, for the purposes of his appeal under the rules, this new material was excluded from consideration by section 85A of the Nationality, Immigration and Asylum Act 2002 (which had come into effect between the date of his appeal and the date of the hearing).
+However, the immigration judge held that this did not prevent him taking it into account in the appeal under article 8 of the Convention, on the basis that, since he clearly meets the requirements of the rules, it was not proportionate to the aims of immigration control to refuse his application.
+The Upper Tribunal reversed that decision, holding that the judge had erred in treating the new evidence as showing effective compliance with the rules for the purpose of article 8.
+The tribunal accepted that the appellant having been in the country undertaking studies for some four years had thereby formed some sort of protected private life for the purposes of article 8.
+But no other aspect of his life in this country was relied on.
+His family ties were all with his native Bangladesh, to which he wished to return after his studies.
+Although the new evidence was not directly relevant under article 8, it took account of the unusual circumstances in which the right to prove compliance with the rules had been lost: I have considered the circumstances in which the claimant has failed to meet the Rules: viz. that he is one of a necessarily fixed class whose ability to prove compliance with the Rules has changed by operation of law since he began his appeal proceedings.
+Those circumstances do, to some extent, diminish the State's interest in removing the claimant, merely in order to maintain the integrity of the Rules.
+If the claimant's article 8 rights had been any stronger, I might well have concluded in the circumstances that his removal in consequence of the immigration decision would be disproportionate.
+As it is, however, I consider that the balance falls to be struck in favour of the Secretary of State. (para 22)
+Mr Anwar
+Mr. Anwar, a citizen of Pakistan, entered on 26 February 2010 with leave to remain as a student until 1 April 2011.
+On 31 March 2011 he applied to extend his leave as a Tier 4 student to enable him to complete his course.
+The application was supported by a Confirmation of Acceptance for Studies (CAS), which recorded that he had been assessed by reference to a document entitled ACCA examination Financial Accounting (F3).
+The F3 document itself was not included with the application.
+On 10 May 2011 the Secretary of State refused the application because, contrary to the relevant guidance, it had not included a document referred to in the CAS, and accordingly no points had been awarded for the CAS.
+On his appeal to the First tier Tribunal the appellant produced the relevant document, claiming that it had in fact been sent with his application form.
+The tribunal allowed his appeal, but their decision was set aside by the Upper Tribunal, which held that on the balance of probabilities he had not sent the relevant document with his application.
+That factual finding is not now in dispute.
+Although there was a reference to the European 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 on 13 July 2012.
+The arguments were wide ranging, summarised by Sullivan LJ under eight grounds.
+Most are no longer in issue.
+The issues
+According to the agreed statement, the following issues are said to arise in the appeals to this court: Patel i) Whether there is an obligation on the Secretary of State to issue a decision to remove at the same time as or immediately after refusing an individuals application for variation of leave to remain in the United Kingdom. ii) Whether there is an obligation on the Secretary of State to issue a one stop notice under section 120 of the 2002 Act when refusing an individuals application for variation of leave to remain in the United Kingdom. iii) Whether the Secretary of States refusal to vary an individuals leave to remain in the United Kingdom is unlawful if it is issued in isolation from a one stop notice or a decision to remove.
+Alam/Anwar iv) Whether the conclusion of the majority in AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076, [2011] 1 WLR 385, that an appeal to the FTT covers not only any ground before the Secretary of State when she made the decision under appeal but also any grounds raised in response to a one stop notice issued under section 120 of the 2002 Act, even if they had not been the subject of any decision by the Secretary of State and did not relate to the decision under appeal, is correct. v) Whether the statements and evidence filed by Mr Alam and Mr Anwar to the FTT amounted to additional grounds under section 120 of the 2002 Act which the FTT was obliged to consider and determine, notwithstanding the bar in section 85A of that Act. vi) In an article 8 case, when balancing the demands of fair and firm immigration control against the disruption to the family or private life of a person if removed for non compliance with the Immigration Rules, whether the nature and degree of the non compliance is significant or, as the Court of Appeal has held (in Miah v Secretary of State for the Home Department [2012] EWCA Civ 261; [2013] QB 35), irrelevant.
+While these issues were agreed between the parties, and they conveniently identify the main matters on which we heard submissions, it will be necessary to consider in due course the extent to which they do properly arise for decision on these appeals.
+For example, the question of an obligation to serve notices under section 120 (issue (ii)) does not arise in any of the three cases, since such notices were in fact served in all of them.
+The statutory provisions
+The Immigration Act 1971, and the rules made under it, constitute the principal statutory framework for the control of immigration, and the Secretary of States functions in that respect.
+Both the statute and the rules have been subject to frequent amendment and addition.
+The issues in the present appeals turn principally on the provisions of the Nationality, Immigration and Asylum Act 2002 which established a new statutory code relating to appeals against immigration decisions, including the so called one stop notices under section 120.
+In relation to the Secretary of States powers of removal, it will be necessary also to consider the Immigration and Asylum Act 1999 section 10, and the Immigration, Asylum and Nationality Act 2006 section 47.
+The starting point is section 3 of the 1971 Act.
+It provides that a person who is not a British citizen may not enter the United Kingdom except with leave under the Act.
+Where leave is given for a limited period, it may be varied by restricting, enlarging or removing the limit on its duration (section 3(3)).
+Section 3C (added by the 2002 Act) is entitled Continuation of leave pending variation decision.
+It applies where a person with limited leave applies, before the leave expires, for a variation of the leave.
+Subsection (2) has the effect that the leave is extended during any period when (a) the application for variation is neither decided nor withdrawn, (b) an appeal under section 82(1) of the 2002 Act could be brought while the appellant is in the United Kingdom, or an appeal brought while the appellant is within the United Kingdom is pending.
+By section 3C(4), a person may not make a further application for variation of his leave while it is extended under this section, but that does not prevent a variation of the application already made.
+It is common ground that such a variation may include grounds unrelated to those in the initial application.
+This provision needs to be understood also in the context of section 92 of the 2002 Act.
+That makes clear that for most categories of immigration decision, other than asylum or human rights claims made from within the United Kingdom and those decisions listed in subsection (2), an appeal must be brought from outside the country.
+Section 3C provides a limited exception for applications to extend existing leave made before its expiry.
+Section 82(1) of the 2002 Act confers a right of appeal to the tribunal in respect of an immigration decision.
+By section 82(2) immigration decision is defined as including (inter alia) a refusal to vary leave to enter or remain if the result of the refusal is that the person has no leave to remain (para (d)); and a decision that a person is to be removed by way of directions under either section 10 of the 1999 Immigration and Asylum Act or section 47 of the Immigration, Asylum and Nationality Act 2006 (paras (g), (ha)).
+Section 84 enumerates the possible grounds of appeal which include: (a) that the decision is not in accordance with immigration rules; (c) that the decision is unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellants Convention rights; (e) that the decision is otherwise not in accordance with the law; (f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules; (g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdoms obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellants Convention rights.
+Section 85 is headed Matters to be considered.
+Its present form, along with section 85A, is derived from amendments made by the UK Borders Act 2007, which were brought into effect, subject to transitional provisions, on 23 May 2011.
+It provides: (1) An appeal under section 82(1) against a decision shall be treated by the Tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1). (2) If an appellant under section 82(1) makes a statement under section 120, the Tribunal shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against. (3) Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced. (4) On an appeal under section 82(1), 83(2) or 83A(2) against a decision the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision. (5) But subsection (4) is subject to the exceptions in section 85A.
+The exceptions in section 85A include the following: (3) Exception 2 applies to an appeal under section 82(1) if (a) the appeal is against an immigration decision of a kind specified in section 82(2)(a) or (d), (b) the immigration decision concerned an application of a kind identified in immigration rules as requiring to be considered under a Points Based System, and (c) the appeal relies wholly or partly on grounds specified in section 84(1)(a), (e) or (f). (4) Where Exception 2 applies the Tribunal may consider evidence adduced by the appellant only if it (a) was submitted in support of, and at the time of making, the application to which the immigration decision related, (b) relates to the appeal in so far as it relies on grounds other than those specified in subsection (3)(c), (c) is adduced to prove that a document is genuine or valid, or (d) is adduced in connection with the Secretary of States reliance on a discretion under immigration rules, or compliance with a requirement of immigration rules, to refuse an application on grounds not related to the acquisition of points under the Points Based System.
+This provision, which is relevant to the Alam and Anwar appeals, needs a little unravelling.
+It is not in dispute that exception 2 applied to both appeals, because the applications had fallen to be considered under the Points Based System.
+Accordingly, (under subsection (4)(a)) the tribunal was unable to consider the new evidence in support of the case under the rules.
+It could only consider it (under subsection (4)(b)) in so far as it related to grounds other than those specified in (3)(c), that is grounds other under section 84(1)(a), (e) or (f).
+Such other grounds include the human rights grounds under section 84(1)(c) and (g).
+Accordingly, consideration of the new evidence so far as relevant to such grounds, in particular article 8 of the Convention, was not excluded.
+Section 86 deals with the determination of the appeal.
+The tribunal is required to determine any matter raised as a ground of appeal and any matter which section 85 requires it to consider.
+It must allow the appeal in so far as it thinks that a decision against which the appeal is brought or is treated as being brought was not in accordance with the law.
+It may also allow the appeal on the grounds that a discretion exercised in making such a decision should have been exercised differently (section 86(3)(b)), but refusal to depart from the immigration rules is not treated as the exercise of a discretion for these purposes (section 86(6)).
+One stop notice
+Section 120 of the 2002 Act applies to a person (a) who has made an application to enter or remain in the UK, or (b) in respect of whom an immigration decision has been taken or may be taken.
+By subsection (2): The Secretary of State or an immigration officer may by notice in writing require the person to state: (a) his reasons for wishing to enter or to remain in the United Kingdom, (b) any grounds on which he should be permitted to enter or remain in the United Kingdom, and (c) any grounds on which he should not be removed from or required to leave the United Kingdom.
+There is no express provision dealing with the form of the response, nor imposing on the Secretary of State any express duty to consider it or determine the issues raised by it.
+Under section 85(2) as already noted, the tribunal, hearing an existing appeal under section 82(1), is required to consider any matter raised in the section 120 statement if it constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against.
+Furthermore, by section 96, the section 120 notice opens the way for the Secretary of State to issue a certificate limiting the scope for subsequent appeal.
+Thus section 96(2) precludes an appeal against an immigration decision (the new decision) in respect of a person where the Secretary of State or an immigration officer certifies: (a) that the person received notice under section 120 by virtue of a decision other than the new decision, (b) that the new decision relates to an application which relies on a matter that should have been, but has not been raised in a statement made in response to that notice, and (c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement in response to that notice.
+Removal decisions
+The Secretary of States powers of removal are defined by section 10 of the 1999 Act and section 47 of the 2006 Act.
+The former provides that a person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if (a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave; By subsection (9) the reasonable costs of complying with the direction must be met by the Secretary of State.
+Section 47 of the 2006 Act, as originally enacted, provided: (1) Where a persons leave to enter or remain in the United Kingdom is extended by section 3C(2)(b), the Secretary of State may decide that the person is to be removed from the United Kingdom, in accordance with directions to be given by an immigration officer if and when the leave ends.
+Again the costs of compliance must be met by the Secretary of State (section 47(4)).
+For completeness, I note that on 8 May 2013 (after the time relevant for the present appeals) a new form of the section was inserted, providing for notice of a pre removal decision (which includes the decision on an application to vary leave to remain) to be given at the same time as the removal direction under section 47.
+This change was designed to deal with a practical problem arising from Sapkota which had been highlighted by a subsequent decision of the Upper Tribunal (upheld by the Court of Appeal).
+It is not directly material to the present appeals.
+The Patel appeals
+There is no dispute now as to the merits of the refusal of leave to remain in the Patel cases, under either the rules or the Convention.
+The sole issue is one of law relating to the form in which the decision was made, more particularly its segregation (the word used in some of the cases) from the decision to direct removal.
+The failure to issue such a direction, it is said, was not only unlawful in itself, but also undermined the validity of the previous decision to refuse leave to remain.
+A similar issue in relation to service of a section 120 notice, although identified in the agreed statement, does not arise on the facts of the case, since such a notice was in fact served.
+In support of this argument, Mr Malik relies principally on the decisions of
+the Court of Appeal in the cases of Mirza [2011] Imm AR 484 and Sapkota [2012] Imm AR 254 to which I have already referred.
+It was held, in summary, (in Mirza) that a policy of separating the refusal of leave to remain from the decision to remove was contrary to the policy and objectives of the 2002 Act to deal compendiously with all issues on the lawfulness of a persons residence in the United Kingdom; and consequently (in Sapkota) that an unjustified deferral of the removal decision would mean that the actual immigration decision was not in accordance with the law.
+Those judgments, and the subsequent Court of Appeal authorities, are discussed in detail in the judgment of the Master of the Rolls in the present case.
+Without disrespect to the judges involved in those decisions, or to Mr Maliks determined arguments in support of them, I do not propose to add materially to the voluminous discussion which this issue has already generated.
+It is sufficient to say that I am in entire agreement with the reasons of the Court of Appeal for not following them.
+The powers to issue removal directions under section 10 of the 1999 Act and section 47 of the 2006 Act (like the power to issue notices under section 120 of the 2002 Act) are just that powers.
+Their statutory purpose is as part of the armoury available to the Secretary of State for the enforcement of immigration control.
+Any extra protection provided to an appellant is incidental.
+Neither section 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.
+As Burnton LJ said in the Court of Appeal [2013] 1 WLR 63, para 73: This language is clearly and unequivocally the language of discretion, not duty, and it is simply not open to the court to interpret it as imposing a duty.
+For the court to do so is to amend the legislation, not to interpret it.
+The contrary argument depends to my mind on a misapplication of the so called Padfield principle (Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997).
+Under that principle, it is clear that discretionary powers conferred by statute must not be used in such a way as to thwart or run counter to the policy or objects of the Act (per Lord Reid, at p 1030C D)).
+It can no doubt be said that one of the purposes of the 2002 Act was to reduce the scope for repeat appeals, and that, as Laws LJ observed, the legislation leans in favour of what are called one stop appeals (JM (Liberia) v Secretary of State for the Home Department [2006] EWCA Civ 1402; [2007] Imm AR 293, para 23).
+It may be also, as Mr Malik submits, that the exercise of the Secretary of States powers has the incidental effect in some cases of adding to the range of matters an appellant is able to raise by way of appeal during the period that his leave is extended under section 3C.
+However, neither such general observations nor such incidental effects can be translated into an overriding policy requiring the Secretary of State to act in a particular way, nor into a right for the appellant to insist that he does so.
+It is to be borne in mind also that exercise of the powers to direct removal, which alone are at issue in the Patel case, is likely to involve both public cost and personal hardship or indignity.
+The Secretary of State does not thwart the policy of the Act if she proceeds in the first instance on the basis that unlawful overstayers should be allowed to leave of their own volition (as on the evidence the great majority do).
+The Upper Tribunal observed in the present case, commenting on its concerns at the implications of the decision in Sapkota: For every person whose real claim is one outside the Rules, there are many who merely want a decision in accordance with the Rules and would either voluntarily depart or make a fresh application if that appeal were to be unsuccessful.
+Further, the developing jurisprudence of the Upper Tribunal has moved beyond the proposition that human rights only arise on removal decisions, to cases where variation of leave applications may need to take into account a wide variety of aspects of private life under article 8 rights, thereby enabling an independent assessment of this claim to remain without the person concerned running the risk of breaking the law. (para 32)
+It follows that 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 that the actual decision was not invalidated by the failure to do so.
+In so far as the decisions of the Court of Appeal in the cases of Mirza and Sapkota indicate the contrary, they were in my view wrongly decided.
+It is unnecessary to consider whether the Court of Appeal was entitled as a matter of precedent to depart from them.
+No such inhibition affects this court.
+The Alam/Anwar appeals
+I have set out above the agreed issues said to arise in these appeals.
+The practical problem faced by the appellants arises from their failure to produce relevant information as required under the Points Based System at the relevant time.
+Each appellant was able to adduce the relevant evidence in response to the section 120 notice, but was barred by exception 2 of section 85A from relying on it directly in support of his appeal.
+The issue in short is whether an indirect route could be found to achieve a favourable result.
+The proposed route depends on using the evidence before the tribunal in support of a putative appeal against the refusal of leave to remain, relying not on the rules, but on human rights grounds (article 8 of the Convention), and thus taking it outside the scope of exception 2.
+This in turn depends on two propositions: first, that the tribunal was obliged to consider the new evidence in that context (scope of appeal), 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 (merits of appeal).
+I would accordingly dismiss the Patel appeals.
+Scope of appeal
+The first issue was the subject of detailed discussion in AS (Afghanistan) v Secretary of State for the Home Department [2011] 1 WLR 385.
+The Court of Appeal by a majority held that section 85(2) was to be construed as imposing a duty on the tribunal to consider any potential ground of appeal raised in response to a section 120 notice, even if it was not directly related to the issues considered by the Secretary of State in the original decision.
+In AQ (Pakistan) v Secretary of State for the Home Department [2011] EWCA Civ 833; [2011] Imm AR 832), it was held that majoritys approach did not require consideration of events subsequent to the Secretary of States decision.
+That issue does not arise in the present cases, where the new evidence related to material which was available at the time of the decisions.
+Turning to the judgments in AS itself, it would be difficult to expand on or improve the depth of legal and contextual analysis to be found in the judgments of all three judges.
+The fact that the analysis led such experienced judges to opposite conclusions suggests that the path to enlightenment will not be found by attempting a similar exercise in this judgment.
+The problem lies in the drafting of the relevant provisions, which defies conventional analysis.
+It is not only obscure in places and lacking in detail, but contains pointers in both directions.
+On the one hand, the words against the decision appealed against in section 85(2) suggest a focus on the content of the original decision.
+As Arden LJ said: A ground of appeal is not a ground of appeal against the decision appealed against if it would not, if accepted, lead to its reversal, as opposed to its being superseded by a new decision on the new evidence that leave to enter or remain should be granted. (para 30) On the other hand the first ground of appeal under section 84(1) is that the immigration decision is not (not was not) in accordance with the Rules; and in considering that question the tribunal is specifically empowered (subject to the exceptions in section 85A) to have regard to evidence concerning a matter arising after the date of appeal.
+Moore Bick LJ (with whom Sullivan LJ agreed) thought that the reference to the decision appealed against did not imply a limitation to the original grounds.
+Having decided that the decisions referred to sections 85(1) and (2) were immigration decisions of the kind identified in section 82(1), he said at para 79: . the natural meaning of these provisions is to impose on the tribunal a duty to consider matters raised by the appellant insofar as they provide grounds for challenging a substantive decision of a kind identified in section 82 that affects his immigration status.
+On the face of it they do not restrict that duty to considering grounds that relate to the reasons for that decision or to the original grounds of appeal.
+There was a similar lack of agreement on the effect of section 85(4), and in particular of the reference to matters relevant to the substance of the decision appealed against.
+That seems a curiously ambiguous term, which can fairly be read as referring either to the substantive effect of the decision or to the substantive reasons underlying it.
+Arden LJ took the latter view, which she saw as supporting her interpretation of section 85(2) (paras 31 2).
+At para 30 she adopted as plainly correct the approach of the Asylum and Immigration Tribunal (EA (Nigeria) v Secretary of State for the Home Department [2007] UKAIT 00013), which had read these words as meaning that the new evidence had to be relevant to the decision actually made, and had added at para 6 that: a decision on a matter under the Immigration Rules is a decision on the detailed eligibility of an individual by reference to the particular requirements of the rule in question in the context of an application that that person has made.
+Sullivan LJ took the opposite view, seeing section 85(4) as consistent with his view that the tribunals consideration was not limited to the grounds considered by the Secretary of State: Since section 85(2) is concerned with statements of additional grounds which must include any reasons why an appellant should be allowed to remain, and which are expressly not confined to the reasons why he should be allowed to remain under rule x of the Rules, I am not persuaded that the reference to the decision appealed against must be a reference to the decision to refuse to vary leave to remain under rule x, rather than the decision to refuse to vary leave to remain, being one of the immigration decisions as defined by section 82 (2).
+Such an approach to section 85 (2) would be consistent with the reference in section 85 (4) to the substance of the decision. (para 113)
+Moore Bick LJ thought that section 85(4) itself had little bearing on the issues before the court, since it was concerned only with the evidence which the tribunal could consider (para 83).
+However, his understanding of the word substance in this context, agreeing with that of Sullivan LJ, is apparent from his earlier discussion of the appropriate response to a section 120 notice.
+He saw its purpose as to impose on the appellant a duty to put forward any grounds he may have for challenging the substance of the decision made against him, rather than simply the grounds on which it was made (para 80, emphasis added).
+The broader approach of the majority seems to me to gain some support from the scheme of section 3C, under which (as is common ground) the initial application for leave to remain, if made in time, can later be varied to include wholly unrelated grounds without turning it into a new application or prejudicing the temporary right to remain given by the section.
+Thus the identity of the application depends on the substance of what is applied for, rather than on the particular grounds or rules under which the application is initially made.
+The same approach can be applied to the decision on that application, the identity or substance of which in the context of an appeal is not dependent on the particular grounds first relied on.
+It is of interest that, at an earlier stage, the broader approach seems to have
+accorded with the reading of those responsible within the Home Office for advice to immigration officers.
+The Immigration Directorates Instructions, issued in September 2006, noted that it was not possible under section 3C to make a second application, but continued: On the other hand, it is possible to vary the grounds of an application already made, even by introducing something completely new.
+A student application can be varied so as to include marriage grounds.
+If an application is varied before a decision is made, the applicant will be required to complete the necessary prescribed form to vary his application.
+If an application is varied post decision, it would be open to the applicant to submit further grounds to be considered at appeal Once an application has been decided it ceases to be an application and there is no longer any application to vary under section 3C(5).
+So any new information will fall to be dealt with during the course of the appeal rather than as a variation of the original application. (para 3.2 emphasis added)
+The same approach is supported by the current edition of Macdonalds Immigration Law & Practice 8th ed (2010) para 19.22 (under the heading The tribunal as primary decision maker).
+The only implicit criticism made of the majority approach in AS is that it did not go far enough.
+They observe that even without a section 120 notice the tribunal should be free to consider any matter including a matter arising after the decision which is relevant to the substance of the decision regardless of whether a one stop notice has been served.
+The substance of the decision is not the decision makers reasoned response to the particular application or factual situation that was before it but is one of the immigration decisions enumerated in section 82 and a matter includes anything capable of supporting a fresh application to the decision maker Whether or not such an extension of the majoritys reasoning can be supported, that passage indicates that the broader approach in itself is not controversial.
+In the end, although the arguments are finely balanced, I prefer the approach of the majority in AS.
+Like Sullivan LJ, I find a broad approach more consistent with the coherence of this part of the Act.
+He noted that the standard form of appeal, echoing the effect of the section 120 notice, urged appellants to raise any additional ground at that stage, on pain of not being able to do so later, and observed: . it seems to me that appellants would have good reason to question the coherence of the statutory scheme if they were then to be told by the AIT that it had no jurisdiction to consider the additional ground that they had been ordered by both the Secretary of State and the AIT to put forward. (para 99)
+Merits of appeal
+The second issue is the materiality to the human rights case of evidence that the appellant could in fact have complied with the rules, even though he failed to do so.
+The argument is that, if it is shown that the appellant could have met the substantive requirements of the rules, the failure to do so should be regarded as purely formal, and that accordingly, in the proportionality balance required by article 8, the objectives of immigration control should carry relatively less weight.
+A variant of this argument, referred to as the near miss principle, is that the degree of failure to meet the requirements of the rules may be relevant in the proportionality balance.
+Support for such an approach is said to be found in the judgment of Sedley LJ (agreed by Rimer and Sullivan LJJ) in Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719; [2011] QB 376.
+The main issue in that case was the extent to which it was permissible for mandatory criteria relevant to the Points Based System to be contained in guidance rather than rules submitted to Parliament under section 3(2) of the 1971 Act.
+That issue has since been considered in the Supreme Court in R (Alvi) v Secretary of State for the Home Department (Joint Council for the Welfare of Immigrants intervening) [2012] UKSC 33; [2012] 1 WLR 2208 and R (New College London Ltd) v Secretary of State for the Home Department (Migrants Rights Network intervening) [2013] UKSC 51, [2013] 1 WLR 2358.
+However Sedley LJ also considered the application of article 8 under such a system.
+He said at paras 45 46: There appears to me, in this situation, to be no escape from the proposition that in exercising her powers, whether within or outside the rules of practice for the time being in force, the Home Secretary must have regard and give effect to applicants' Convention rights.
+This will mean in most cases evaluating the extent and quality of their family and private life in the United Kingdom and the implications, both for them and for the United Kingdom, of truncating their careers here.
+That in turn will require consideration of the significance of the criteria by which their eligibility has been gauged and found wanting.
+It is one thing to expect an applicant to have the necessary academic and linguistic qualifications: here a miss is likely to be as good as a mile.
+It is another for an applicant to fall marginally or momentarily short of a financial criterion which in itself has no meaning: its significance is as a rough and ready measure of the applicant's ability to continue to live without reliance on public funds.
+Having 800 in the bank, whether for three continuous months or simply at the date of application, is no doubt some indication of this; but people who are able to meet the test may fall on hard times after obtaining indefinite leave to remain, and others who fail it would, if allowed to remain, never become a charge on public funds.
+The Home Office has to exercise some common sense about this if it is not to make decisions which disproportionately deny respect to the private and family lives of graduates who by definition have been settled here for some years and are otherwise eligible for Tier 1 entry.
+If the Home Secretary wishes the rules to be blackletter law, she needs to achieve this by an established legislative route.
+The court can be seen in that passage to have endorsed the view that, at least in relation to financial criteria, a near miss (a marginal or momentary shortfall) might affect the consideration of proportionality under article 8.
+That view did not affect the results in any of the cases before it.
+In the only one to which it might have been relevant (Mrs Maleckia), it was held that there was in any event no prospect of success under article 8 (para 53).
+Mr Malik also relies on other cases, before and since, which have adopted a similar approach without reference to Pankina.
+In SB (Bangladesh) v Secretary of State for the Home Department [2007] EWCA Civ 28, the court when allowing an appeal against the tribunals decision on other grounds agreed with them that the fact that the appellant only just failed to qualify for admission was a fact to be counted in her favour.
+Ward LJ, at para 30, adopted the observation of Collins J in Lekstaka v Immigration Appeal Tribunal [2005] EWHC 745 (Admin) para 38 that: one is entitled to see, whether in all the circumstances, this case falls within the spirit of the Rules or the policies, even if not within the letter.
+Ward LJ added: That seems to us to be the right approach.
+As Simon Brown L.J. said in Ekinci at paragraph 16: Even if strictly he fails to qualify so that the ECO would be prohibited from granting leave to enter, given the obvious article 8 dimension to the case the ECO would refer the application to an Immigration Officer who undoubtedly has a discretion to admit someone outside the Rules.
+And if entry were to be refused at that stage, then indeed a section 59 right of appeal would certainly arise in which, by virtue of section 65(3), (4) and (5) the adjudicator would have jurisdiction to consider the appellant's human rights. (I note in passing that those comments of Simon Brown LJ were made with reference to the rather different appeal provisions of the Immigration and Asylum Act 1999, and were directed specifically to a case with an obvious article 8 dimension.)
+More recently, in R (Mansoor) v Secretary of State for the Home Department [2011] EWHC 832 (Admin), Blake J, sitting on this occasion in the Administrative Court, held that on the facts the interference with the applicants family life was such as to make it disproportionate under article 8 to remove her, notwithstanding that she was unable to satisfy a relevant criterion in the rules.
+He said, at para 35 (without specific reference to Pankina): the terms of the immigration rules are not a legitimate aim in their own right A judgment needs to be made as to how significant the aim, and how far the removal of the particular claimant in the circumstances of her case is necessary to promote that aim.
+The mere fact a genuine spouse lawfully admitted with her British citizen husband and settled children can no longer meet one requirement of the rules through no fault of her own is unlikely to amount to a weighty reason to justify interference with family life here that is otherwise to be respected.
+The opposite approach is supported by the judgment of Stanley Burnton LJ (agreed by Maurice Kay and Lewison LJJ) in Miah v Secretary of State for the Home Department [2013] QB 35.
+In that case the applicant was refused leave to remain as a Tier 2 (General) Migrant at a time when he was two months short of the five years continuous residence necessary to support a case for indefinite leave to remain under the rules.
+It was argued that, in assessing whether his removal should be permitted under article 8.2 of the Convention, the weight to be given to the maintenance of immigration controls should be diminished because he had missed satisfying the rules by only a small margin.
+Burnton LJ observed that, as formulated in the skeleton submissions of Mr Malik (appearing for the appellant in that case as in the present), the argument was not so much near miss as sliding scale, by virtue of which There is an inverse relationship between the degree to which there is compliance with the rules and the immigration policy imperative which demands that unsuccessful applicants be removed (paras 9 10).
+In rejecting that argument, Burnton LJ referred to a passage in the speech of Lord Bingham in Huang v Secretary of State for the Home Department [2007] 2 AC 167, in which he discussed the long established and central role of the immigration rules in determining those to whom leave to enter or remain should be granted.
+Although the near miss argument as such was not in issue in that case, Burnton LJ thought it inconsistent with Lord Binghams approach.
+He said at para 14: I find Lord Bingham's reference in para 6 to rules, to be administratively workable, [requiring] that a line be drawn somewhere and in para 16 to the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory to be helpful and generally inconsistent with a near miss principle.
+He referred to two previous Court of Appeal judgments (not cited in Pankina) in which similar arguments had been rejected: Mongoto v Secretary of State for the Home Department [2005] EWCA Civ 751, and R (Rudi) v Secretary of State for the Home Department [2007] EWCA Civ 1326.
+In the latter case, citing Mongoto, I said of the near miss argument: 28.
+This argument is, in my view, based on a misconception.
+The Secretary of State is of course entitled to have a policy.
+The promulgation of the policy normally creates a legitimate expectation that it will be applied to those falling within its scope unless there is good reason for making an exception.
+So much is trite law.
+It is also trite law that the existence of the policy does not excuse the decision maker from due consideration of cases falling outside it.
+However, the law knows no near miss principle.
+There is no presumption that those falling just outside the policy should be treated as though they were within it, or given special consideration for that reason.
+Faced with the conflict between the approach taken in these authorities and that of Pankina Burnton LJ had no difficulty in preferring the former, which he regarded as binding on the court (paras 21 25).
+He could see no principled basis for distinguishing, as Sedley LJ had proposed, between rules to which the near miss principle did and did not apply.
+In particular he disagreed with Sedley LJ that a financial criterion has in itself no meaning, and could therefore be distinguished from other rules, such as those relating to academic qualifications, in respect of which a miss is as good as a mile.
+In conclusion he said at paras 25 26: Finally, quite apart from authority, I prefer the approach stated in Mongotos case and Rudis case.
+A rule is a rule.
+The considerations to which Lord Bingham referred in Huangs case require rules to be treated as such.
+Moreover, once an apparently bright line rule is regarded as subject to a near miss penumbra, and a decision is made in favour of a near miss applicant on that basis, another applicant will appear claiming to be a near miss to that near miss.
+There would be a steep slope away from predictable rules, the efficacy and utility of which would be undermined.
+For these reasons, I would dismiss the appeal in relation to the near miss argument.
+In my judgment, there is no near miss principle applicable to the Immigration Rules.
+The Secretary of State, and on appeal the tribunal, must assess the strength of an article 8 claim, but the requirements of immigration control are not weakened by the degree of non compliance with the Immigration Rules.
+The difference between the two positions may not be as stark as the submissions before us have suggested.
+The most authoritative guidance on the correct approach of the tribunal to article 8 remains that of Lord Bingham in Huang.
+In the passage cited by Burnton LJ Lord Bingham observed that the rules are designed to identify those to whom on grounds such as kinship and family relationship and dependence leave to enter should be granted, and that such rules to be administratively workable, require that a line be drawn somewhere.
+But that was no more than the starting point for the consideration of article 8.
+Thus in Mrs Huangs own case, the most relevant rule (rule 317) was not satisfied, since she was not, when the decision was made, aged 65 or over and she was not a widow.
+He commented at para 6: Such a rule, which does not lack a rational basis, is not to be stigmatised as arbitrary or objectionable.
+But an applicant's failure to qualify under the rules is for present purposes the point at which to begin, not end, consideration of the claim under article 8.
+The terms of the rules are relevant to that consideration, but they are not determinative.
+Thus the balance drawn by the rules may be relevant to the consideration of proportionality.
+I said much the same in Rudi.
+Although I rejected the concept of a near miss principle, I did not see this as inconsistent with the Collins Js words in Lekstaka: Collins J's statement, on which the court relied [in SB], seems unexceptionable.
+It is saying no more, as I read it, than that the practical or compassionate considerations which underlie the policy are also likely to be relevant to the cases of those who fall just outside it, and to that extent may add weight to their argument for exceptional treatment.
+He is not saying that there arises any presumption or expectation that the policy will be extended to embrace them. (para 31(ii)) (My reference to exceptional treatment needs to be read now in the light of Huang para 20 in which Lord Bingham made clear that, contrary to previous Court of Appeal case law, there was no separate test of exceptionality.)
+Although the context of the rules may be relevant to the consideration of proportionality, I agree with Burnton LJ that this cannot be equated with a formalised near miss or sliding scale principle, as argued for by Mr Malik.
+That approach is unsupported by Strasbourg authority, or by a proper reading of Lord Binghams words.
+Mrs Huangs case for favourable treatment outside the rules did not turn on how close she had come to compliance with rule 317, but on the application of the family values which underlie that rule and are at the heart also of article 8.
+Conversely, a near miss under the rules cannot provide substance to a human rights case which is otherwise lacking in merit.
+It is important to remember that article 8 is not a general dispensing power.
+It is to be distinguished from the Secretary of States discretion to allow leave to remain outside the rules, which may be unrelated to any protected human right.
+The merits of a decision not to depart from the rules are not reviewable on appeal: section 86(6).
+One may sympathise with Sedley LJs call in Pankina for common sense in the application of the rules to graduates who have been studying in the UK for some years (see para 47 above).
+However, such considerations do not by themselves provide grounds of appeal under article 8, which is concerned with private or family life, not education as such.
+The opportunity for a promising student to complete his course in this country, however desirable in general terms, is not in itself a right protected under article 8.
+The present appeals
+I have discussed the respective arguments on this point in some detail
+because of its general importance and the conflicting statements found in some of the judgments.
+However, I can deal relatively shortly with the two cases before us.
+The near miss argument was not advanced in the same form before the Court of Appeal, apparently because it was thought to be precluded by Miah.
+Even if otherwise well founded, it is not in my view available to Mr Anwar, since no separate human rights grounds were advanced on his behalf before either tribunal.
+So the issue as to whether the tribunal would have been obliged to consider them, and with what effect, did not arise.
+In Mr Alams case the human rights case was considered at both levels, but ultimately failed before the Upper Tribunal on its merits.
+The Upper Tribunal fairly gave some weight to the unusual circumstances in which he had lost his ability to rely on the new evidence (as a result of a change in the rules after the start of the appeal).
+But there was little or nothing to weigh on the other side of the balance, apart from 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.
+I see no error in the approach of the Upper Tribunal.
+Conclusion
+For these reasons, I would dismiss all three appeals.
+LORD MANCE (with whom Lord Kerr, Lord Reed and Lord Hughes agree)
+I would also dismiss these appeals for the reasons given by Lord Carnwath.
+Anything that we say about AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076, [2011] 1 WLR 385 is obiter, since in the case of Anwar no separate human rights ground was advanced in either tribunal and in the case of Alam the Upper Tribunal held correctly that there is nothing in any human rights point that was raised.
+If we were to disagree with the majority approach in AS, that would raise a problem of precedent for lower courts, but since I would on balance also favour leaving the majority view undisturbed, that problem does not arise.
+In fact, it appears that the whole area of appeals is likely to be reshaped by the Immigration Bill 2013 (HC Bill 110), so that the majority approach in AS and any view we express about the correct approach are likely to become irrelevant in future cases.
+The issue arising under section 85(2) of the Nationality, Immigration and Asylum Act 2002 which was addressed in AS is undoubtedly a difficult and very arguable one, and the arguments for and against the rival approaches are comprehensively discussed in AS.
+As I see it, the essential question was well defined by Sullivan LJ at paras 111 113.
+It is whether the decision appealed against to which section 85(2) refers is the generic decision to refuse leave to remain (i.e. in the present cases, within section 82(2)(d)), or the particular decision to refuse leave under a particular head, for example under a particular rule of the Immigration Rules or on a Human Rights ground.
+The majority approach in AS does not mean that section 85(2) enables an appellant, who has sought leave to remain, to go outside the scope of a leave to remain application by adding or substituting an appeal under a different head of section 82(2), e.g. by asserting a wrongful refusal of entry clearance or of a certificate of entitlement: see sections 82(2)(b) or (c)).
+To that extent, it seems to me that the majority approach is not open to the criticism that it amounts to re reading section 85(2) as if it used the words against a decision of a kind listed in section 82(2) or omitted the words against the decision appealed against altogether.
+Where the Secretary of State chooses to give a section 120(2) notice, the aim is to flush out any new (a) reasons for wishing to enter or remain and/or (b) grounds for being permitted to enter or remain and/or (c) grounds for not being removed or required to leave the UK.
+The statement in response need not repeat reasons or grounds set out in the existing application or decision which is the occasion for giving the notice: section 120(3).
+When section 85(2) requires the Tribunal to consider any matter raised in the [section 120] statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against, it is therefore referring to new reasons or grounds not previously covered by the decision appealed against.
+So long as they [constitute] a ground of appeal of a kind listed in section 84(1), they can be relied upon.
+By inference, it can be said, it is or becomes legitimate to treat them as constituting a ground of appeal, even though they were not raised before or decided by the Secretary of State.
+So, instead of relying on the Immigration Rules to justify leave to remain, an appellant can rely on a Human Rights ground, as Alam sought to do.
+And in AS itself, it would follow that the majority was correct to hold that an appellant could invoke a different Immigration Rule to justify leave to remain in the case of AS herself: that she qualified under the International Graduate Scheme, rather than as a person intending to establish herself in business, in the other case of NV, on the basis that she had ten years residence, rather than on the basis that she was a student.
+Section 3C(4) of the 1971 Act certainly provides some forceful arguments to the contrary of the majority conclusion in AS.
+But I am inclined to think that Moore Bick and Sullivan LJJ deal sufficiently in their paras 84 86 and 102 with the problem of reconciling their conclusion with section 3C(4).
+Essentially, it is up to the Secretary of State to decide whether to serve a section 120 notice.
+It is true that the majority approach to section 85(2) means that an applicant may open up issues which would otherwise be closed, at least until conclusion of the existing appeal (after which the applicant, if unsuccessful in the appeal, would be an overstayer).
+But it does at the same time close down some further applications which the appellant might, whether as an overstayer or from abroad, make.
+The fact that the Tribunal will, in a wider area, become primary decision maker appears to me relatively indecisive, bearing in mind that it anyway acts as decision maker in some significant areas.
+The overlap argument advanced by Sullivan LJ at para 106 also seems to me relevant, if one is considering the advantages and disadvantages of each solution.
+help identify at what level of detail that decision is to be considered.
+On the other hand, I am not persuaded that there is anything in the substance point based on section 85(4).
+Moore Bick LJ (para 83), rather than Sullivan LJ (para 113) was in my view right on this.
+Section 85(4) is dealing only with evidence which goes to the substance (heart) of the decision, but does not
diff --git a/UK-Abs/train-data/judgement/uksc-2012-0217.txt b/UK-Abs/train-data/judgement/uksc-2012-0217.txt
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@@ -0,0 +1,288 @@
+On 3 December 1973, the appellant, Martin Corey, was convicted of the murder of two police officers.
+He was sentenced to life imprisonment.
+He remained in prison until 26 June 1992 when the Secretary of State for Northern Ireland released him on licence, pursuant to section 23(1) of the Prison Act (Northern Ireland) 1953.
+Following his release in 1992 the appellant remained at liberty for almost 18 years.
+On 13 April 2010 the Secretary of State wrote to the parole commissioners referring Mr Coreys case to them under article 9(1) of the Life Sentences (Northern Ireland) Order 2001 (SI 2001/2564 (NI 2)) and seeking a recommendation on whether the licence on which appellant had been released should be revoked.
+Article 9(1) provides that, if recommended to do so by the commissioners, in the case of a life prisoner who has been released on licence, the Secretary of State may revoke his licence and recall him to prison.
+On 14 April 2010, a single commissioner recommended that the licence of Mr Corey should be revoked.
+That recommendation was based on material which had been supplied by the Secretary of State.
+The material included a confidential file containing intelligence information which had been provided by the security services.
+After that recommendation had been received, a minister of state, acting on behalf of the Secretary of State, revoked the appellants licence on 15 April 2010.
+Mr Corey was taken into custody again on 16 April 2010 and has remained in prison since then.
+By virtue of article 9(4) of the 2001 Order, a prisoner recalled to prison must have his case referred to the parole commissioners.
+After he had been recalled to prison, therefore, Mr Coreys case was duly referred.
+Initially it was considered by a single commissioner.
+She gave provisional directions under the Parole Commissioners Rules (Northern Ireland) 2009 (SRNI 2009/82).
+Part of the material which had been supplied to the commissioners in April 2010 had been certified as confidential information under rule 9(1) of the 2009 Rules.
+And rule 9(3) requires that a gist of such information should be served on the commissioners and the prisoner.
+On 7 June 2010 the Secretary of State provided a dossier of material in relation to Mr Coreys case.
+In compliance with rule 9(3) it was accompanied by a statement of evidence which set out the gist of the confidential information.
+This was considered by the single commissioner.
+She also examined the confidential material itself.
+She recommended, pursuant to rule 19, that the Advocate General for Northern Ireland should appoint a special advocate to represent Mr Coreys interests.
+The commissioner also recommended that the appellants case should be dealt with by a panel of commissioners, rather than by a single commissioner considering it alone.
+A panel was duly convened.
+On 9 November 2010, following a directions hearing, the chairman of the panel ordered that a statement of all open and closed material relevant to the case, including the product of any exculpatory matter that undermined the Secretary of State's case, should be served on the panel and the special advocate.
+It was ordered that a similar statement in respect of the open material be served on the prisoner's representatives.
+They were not to receive the closed material, of course.
+A closed hearing took place on 25 January 2011 to consider the material which had been served on the panel and the special advocate.
+The panel heard submissions on behalf of the Secretary of State.
+The special advocate also made representations to the panel about the adequacy of the disclosure of the closed material.
+The commissioners gave a ruling on these submissions on 7 February 2011.
+Hearings before the panel were then conducted into Mr Coreys case.
+These took place between 29 and 31 March and 23/24 May 2011.
+Open and closed evidence was received.
+Counsel appeared for Mr Corey and the Secretary of State at the open hearings.
+The special advocate represented the appellants interests during closed hearings.
+On 15 August 2011 the panel gave its decision.
+This comprised both a closed and an open judgment.
+In a detailed ruling which formed part of the open judgment, the panel stated that it was satisfied that Mr Corey had become involved in the Continuity Irish Republican Army from early 2005 and that he was in a position of leadership in that organisation from 2008 until his recall to prison.
+It was concluded that the appellant posed a risk of serious harm to the public at the time of his recall.
+Under article 6(4) of the 2001 Order the commissioners are forbidden to direct that a life prisoner be released unless they are satisfied that it is no longer necessary for the protection of the public from serious harm that the prisoner should be confined.
+Since the commissioners were not so satisfied in relation to Mr Corey, they refused to direct his release.
+The appellant sought judicial review of the commissioners decision on the grounds (among others) that inadequate material had been disclosed in the gist and that the refusal to direct his release had been based solely or to a decisive degree on the closed material and was, on that account, in breach of Mr Coreys rights under article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
+The Secretary of State was a notice party to the application for judicial review.
+In a judgment delivered on 9 July 2012, Treacy J held that the commissioners decision was indeed based solely or decisively on the closed material.
+He further found that the allegations contained in the open material were not sufficiently specific to enable the appellant to provide his lawyers and the special advocate with information to refute them.
+The hearing which the commissioners had conducted into the appellants case constituted, on that account, a breach of the appellants right to procedural fairness under article 5(4) of the Convention.
+Instead of quashing the decision of the commissioners, however, Treacy J decided, pursuant to section 21 of the Judicature (Northern Ireland) Act 1978, to remit the matter to them with a direction that they reconsider the case and reach a decision in accordance with his ruling.
+The judge also decided to admit the appellant to bail pending reconsideration of his case by the parole commissioners.
+The Secretary of State immediately applied for a stay of Treacy Js order and within a short time thereafter lodged an appeal against the judges decision.
+Although the commissioners also lodged an appeal, this was not pursued and they participated as a notice party in the appeal proceedings brought by the Secretary of State.
+The Court of Appeal convened an early hearing to consider that part of the judges order by which he had directed the appellants release.
+On 11 July 2012 it decided that the judge did not have power to grant bail.
+The Court of Appeal therefore stayed enforcement of that part of Treacy Js order which had admitted the appellant to bail.
+Delivering the judgment of the court, Morgan LCJ said that the determining issue was whether there had been a break between the sentence [of life imprisonment] and the continued detention of the [appellant] (para 8).
+Since there was no such break, the judge did not have power to grant bail.
+An application for permission to appeal the decision of the Court of Appeal on the question of the High Courts jurisdiction to grant bail was lodged with this court on 27 September 2012.
+Permission to appeal was granted on 13 December 2012.
+In the meantime, the appeal by the Secretary of State against that part of Treacy Js decision in relation to the breach of article 5(4) (which had been deferred in July 2012) was heard by the Court of Appeal on 26 October and 26 November 2012.
+In a judgment delivered on 21 December 2012 the appeal was allowed: [2012] NICA 57.
+The Court of Appeal concluded that the material provided to the appellant and his advisers was sufficient to allow him to give effective instructions to those representing him.
+There was therefore no breach of article 5(4) of the Convention.
+Application was made to this court for permission to appeal the Court of Appeals decision on the issue of breach of article 5(4).
+That application was refused.
+In these circumstances, the appellants appeal on the question whether the High Court had an inherent jurisdiction to grant him bail or otherwise order his interim release is, strictly speaking, academic.
+Because of the importance of the issue, however, this court considered that the appellants appeal on this question should be allowed to proceed.
+The appellants arguments
+Ms Quinlivan QC made three principal arguments on behalf of the appellant.
+Firstly, she submitted that, when determining a judicial review challenge to the commissioners refusal to release a recalled prisoner, the High Court had power to order the discharge of the prisoner as part of its inherent jurisdiction.
+Secondly, she argued that the Human Rights Act 1998 afforded an applicant whose Convention rights were found to have been violated the right to an effective remedy.
+Where breach of the appellants article 5(4) rights had occurred, the effective remedy for that breach must include entitlement to be admitted to bail.
+Finally, she contended that the continued detention of the appellant some two years and three months after revocation of his licence, without there having been an article 5(4) compliant hearing at which the legal propriety of his detention was reviewed, amounted to a breach of article 5(1) of the Convention; alternatively, his continued detention was arbitrary.
+In either event, the High Court had power to direct that the appellant should be released.
+The third and final of these arguments had not been addressed to Treacy J.
+Nor had it been at least in the terms in which it is now made advanced to the Court of Appeal.
+Article 5(1) of the Convention, in its material part, provides that Everyone has the right to liberty and security of person.
+No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court For the first time before this court, Ms Quinlivan sought to argue that the delay in holding an article 5(4) compliant inquiry into the appellants detention had rendered that detention unlawful.
+The inherent jurisdiction of the High Court of Northern Ireland
+The Supreme Court of Judicature Act (Ireland) 1877 (40 & 41 Vict c 57) replaced the existing court structure in Ireland.
+It created a Supreme Court of Judicature which comprised a High Court of Justice and a Court of Appeal.
+The 1877 Act replicated the reform of the courts of England and Wales under the Judicature Acts of 1873 and 1875.
+As in England and Wales, the High Court in Ireland inherited the same inherent jurisdiction as had been enjoyed by the pre 1877 superior courts of common law and equity.
+The Government of Ireland Act 1920 abolished the Supreme Court of Judicature which had been created by the 1877 Act.
+Separate High Courts for Northern Ireland and the remainder of the island of Ireland (later to become the Republic of Ireland) were brought into existence.
+They continued to function in much the same way as previously but as separate entities.
+In Northern Ireland a new Supreme Court of Judicature was created by the Judicature (Northern Ireland) Act 1978.
+Under this Act, the basic court structure remained largely unchanged.
+In particular, the general jurisdiction of the High Court was preserved.
+Section 16(2)(a) provided that all such jurisdiction as was capable of being exercised previously by the High Court of Justice in Northern Ireland would continue to be exercisable.
+There can be no doubt, therefore, that the Northern Ireland High Court has an inherent jurisdiction.
+The nature of inherent jurisdiction
+Sir Jack Jacob in his authoritative work, The inherent jurisdiction of the Court [1970] CLP 23, 25 27 has said that the historical development of inherent jurisdiction has proceeded along two paths, firstly by way of punishment for contempt of court and secondly as a means of regulating the practice of the court and preventing abuse of its process.
+On the latter aspect, Sir Jack said that the essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused.
+The power to control the courts proceedings and process has a number of aspects: the regulation of proceedings; dealing with abuse of process; and compelling observance of the courts orders and directions.
+Ultimately, however, these are geared to the same aim viz ensuring the effective delivery and enforcement of the courts decisions.
+Approached in that way, the issue in the present case can be expressed thus: Is it necessary for the effective disposal of the appellants claim that the court should have power to order his release pending reconsideration of his case by the commissioners?
+The fact that the release of life sentence prisoners is governed by the 2001 Order does not, per se, inhibit the exercise of an inherent jurisdiction.
+As Sir Jack Jacob put it, at p 24, the court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute.
+But he added an important rider.
+Recourse to an inherent jurisdiction, he said, must not contravene any statutory provision.
+One may go further, however.
+Using an inherent jurisdiction in a way that runs counter to the purpose or spirit of legislation is not permissible.
+The present case exemplifies the point.
+It could not be right to purport to exercise an inherent jurisdiction in a way that would undermine the intended operation of the statute.
+And therefore to direct the release of a recalled prisoner where the statutory safeguards surrounding a decision to restore liberty to such a prisoner are not in place could not be justified by invoking the inherent jurisdiction.
+Did the High Court have inherent jurisdiction to grant bail in this instance?
+The gravamen of the appellants case on this question was that the common law in relation to inherent jurisdiction is both flexible and versatile.
+It can and should respond to changing needs and circumstances.
+Although it was primarily a means of controlling procedure, it should be adapted to meet the requirement of ensuring that the courts decision is fully effective.
+This argument has as its corollary the claim that, to be effective, the remedy for the breach of a recalled prisoners article 5(4) rights must include the opportunity to seek from the court his release from prison in vindication of the right.
+Article 5(4) provides: Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
+It is important to recall that in the present case, the lawfulness of the
+appellants detention on foot of his recall to prison was not directly in issue in the judicial review proceedings before Treacy J.
+The focus of the appellants challenge was to the commissioners failure to direct his immediate release and the manner in which their determination was made.
+The appellants had not made a substantive challenge to the lawfulness of his detention under article 5(1) of the Convention.
+As the judge said in para 58 of his judgment: This court is concerned only with the fairness of the determination and the process used to come to it (emphasis added)
+The decision to grant bail in the present case was not founded, therefore, on the conclusion that the appellants detention was unlawful.
+The judge did not address that issue.
+He based his decision on the manner in which the commissioners review of the appellants case had been conducted.
+The claim that the court had inherent jurisdiction to order his release must be viewed against that backdrop.
+The same applies to the claim that the finding of a breach of article 5(4), to be practical and effective, required that the court should be able to order the appellants release.
+Put shortly, the critical question is whether it was necessary that, in order to give meaningful and realistic effect to the finding that the review into the appellants detention had not been conducted lawfully, the court should have power to order the appellants release.
+In my view it is clear that the judges decision did not require that underpinning.
+His order that the review of the appellants detention had not been conducted lawfully and that it should be reconsidered was, on its own terms, a full vindication of the right which the appellant had asserted.
+On that ground alone, I consider that the judge did not have power to order the appellants release.
+That conclusion makes it unnecessary to deal with the submission made on behalf of the appellant that the decision in Ex parte Blyth [1944] KB 532, that the High Court did not have jurisdiction to grant bail post conviction, should not be followed.
+Ms Quinlivan had relied on the decisions in R v Secretary of State for Home Department, Ex p Turkoglu [1998] QB 398 and R (Sezek) v Secretary of State for the Home Department [2002] 1 WLR 348 in support of the claim that a more expansive approach to the scope of inherent jurisdiction was warranted.
+In Turkoglu the applicant had been granted bail by a High Court judge when he was given leave to apply for judicial review of the decision refusing him leave to enter the United Kingdom.
+His application for judicial review was subsequently dismissed and the judge, considering that he had no further jurisdiction in the matter, refused bail pending an appeal.
+On his appeal against the refusal of bail it was held that, unless there was statutory provision or judicial precedent to the contrary, the High Court seized of a civil matter had jurisdiction to grant bail.
+In Sezek the applicant, a Turkish national, had been granted indefinite leave to remain in the United Kingdom but his subsequent application for British citizenship had been refused for failing to declare previous criminal convictions.
+A deportation order was made in April 1999 which included authorisation for his detention.
+He applied for judicial review of that decision which was dismissed.
+He appealed the dismissal and applied to the Court of Appeal for bail pending the hearing of his appeal.
+It was held that the High Court had power in judicial review proceedings to make an ancillary order temporarily releasing on bail an applicant detained pursuant to the Immigration Act 1971.
+The Court of Appeal, it was decided, also had power to order the appellants release by virtue of section 15(3) of the Supreme Court Act 1981 but, in that instance, the court was exercising an original jurisdiction.
+These cases, Ms Quinlivan argued, illustrated the versatility of the law and its responsiveness to the requirements of the liberty of the individual.
+A similar approach was, she suggested, appropriate in this case.
+It should be noted, firstly, that in both Turkoglu and Sezek it was accepted
+by the Secretary of State that the relevant courts had power to grant bail.
+It should also be remembered that in Sezek the Court of Appeal considered that it was by recourse to an original, as opposed to inherent, jurisdiction, that the grant of bail might be made.
+All that aside, the principal difficulty with Ms Quinlivans argument is that in both cases the applicants were asserting their right to liberty.
+If their claims were upheld, they were entitled not to be detained, whereas what Mr Corey claims is the right to have his valid recall to prison reviewed in a way that is compliant with article 5(4) of the Convention.
+A power to grant bail ancillary to the declaration that the appellant was entitled to that particular form of relief was not only unnecessary in order to make the grant of relief practical and effective, it was unrelated to it.
+Quite apart from the inaptness of recourse to an inherent jurisdiction for the purpose of making the judges order practically and meaningfully effective, to recognise an inherent jurisdiction to order release in the circumstances of this case would run directly counter to the operation of the 2001 Order.
+One of the principal philosophies underlying the Order is expressed in article 6(4) which provides: The Commissioners shall not give a direction [that the prisoner should be released] unless (a) (b) the Commissioners are satisfied that it is no longer necessary for the protection of the public from serious harm that the prisoner should be confined.
+That philosophy has received the endorsement of the court in Strasbourg.
+In Stafford v United Kingdom (2002) 35 EHRR 1121, para 80 the European Court of Human Rights said Once the punishment element of the sentence (as reflected in the tariff) has been satisfied, the grounds for the continued detention, as in discretionary life and juvenile murderer cases, must be considerations of risk and dangerousness .
+A statement to like effect is to be found in the later case of von Blow v United Kingdom (2004) 39 EHRR 16, para 43.
+As Mr Simpson QC for the Secretary of State reminded us, the 2001 Order prominently required, in article 3(2), that a miscellany of experts drawn from a variety of fields be appointed to be life sentence commissioners (the predecessors of parole commissioners).
+That requirement was replicated in later legislation.
+Under paragraph 1 of Schedule 4 to the Criminal Justice (Northern Ireland) Order 2008 (SI 2008/1216) the Secretary of State is enjoined to ensure that at least one of the commissioners is a person who holds or has held judicial office; one must be a medical practitioner who is a psychiatrist; one a chartered psychologist; one who has experience of working with victims of crime; and one who has made a study of the causes of delinquency or the treatment of offenders.
+This requirement reflects the need to have available a range of specialists who can contribute to what must often be a difficult debate as to whether the rigorous test set out in article 6(4)(b) is satisfied.
+It would be inconsistent with the protection of the public (which is such a central feature of the legislation) that a judge should order the release of a life sentence prisoner by reason only of a failure to conduct an article 5(4) compliant review, where the intense examination, contemplated by article 6(4)(b), of whether his detention is no longer necessary has not taken place.
+Put simply, the legislature has placed in the hands of a panel of experts the difficult decision as to when a life sentence prisoner should be released.
+Their role should not be supplanted by a judge who does not have access to the range of information and skills available to the commissioners.
+In this connection it should be noted that Ms Quinlivan sensibly accepted that, even if the High Court had inherent jurisdiction to release a life sentence prisoner on bail, it should not do so unless satisfied that he would pose no risk of serious harm to the public.
+The hearing before the Court of Appeal
+It appears that the case for the appellant in the Court of Appeal took a distinctly different turn from that which had been presented to Treacy J.
+In para 5 of his ex tempore judgment delivered on 11 July 2012, Morgan LCJ observed that the court had been referred to extensive authorities in relation to the lawfulness of the detention of the [appellant].
+So far as one can tell from the understandably brief judgment, the focus seems no longer to have been on whether there had been a review of the appellants detention that was compliant with article 5(4) of the Convention but on whether his detention had become unlawful because of a break between the sentence and the continued detention (para 8).
+In deciding that there was no such break the Court of Appeal considered the decision of the House of Lords in R (James) v Secretary of State for Justice (reported as R (Walker) v Secretary of State for Justice (Parole Board intervening) [2010] 1AC 553).
+That case was concerned with indeterminate sentences for public protection (IPP) which had been introduced by section 225 of the Criminal Justice Act 2003.
+Such sentences comprise a tariff period (which must be served before the prisoner is considered for release by the Parole Board) and a post tariff period which ends when the Parole Board concludes that it would no longer be dangerous for the prisoner to be released.
+There had been a systemic failure to provide courses for the prisoners in the James case.
+It was argued that, if they had completed such courses successfully, they could have demonstrated to the Parole Board their suitability for release.
+Among other claims, the appellants asserted that they were, in consequence, unlawfully detained under article 5(1) of the Convention.
+It was unanimously held that the absence of material to enable the Parole Board to form a view as to the safety of the appellants release did not make their detention unlawful.
+Relying on the decision of the Strasbourg court in Weeks v United Kingdom (1987) 10 EHRR 293 para 42, the House of Lords held that, for a prisoners detention to be justified under article 5(1), there had to be sufficient causal connection between his conviction and the deprivation of liberty: [2010] 1AC 553, para 38.
+Such a link, the House held, might be broken by a prolonged failure to enable the prisoner to demonstrate that he was safe for release but the delay in the appellants case was not such as to give rise to a breach of article 5(1).
+This was the burden of the two principal opinions given by Lord Brown of Eaton under Heywood and Lord Judge CJ.
+In para 42, Lord Brown considered whether the objectives of an IPP included not only the continued detention of the prisoner until he could be safely released but also his reform and rehabilitation.
+At para 49 he said that the IPP legislation went no further than providing the government with the opportunity to introduce treatment courses but the provision of rehabilitative treatment necessary to obviate the risk was not among the specific legislative objectives.
+If it was not possible to assess the prisoners dangerousness because he had been unable to undertake courses which might demonstrate that he no longer posed a risk to the public detention beyond the tariff period is justified because the sentencing court decided that the prisoner would continue to be dangerous at the expiry of the punitive element of the sentence; the necessary predictive judgment will have been made. (para 50)
+Lord Judge was also of the view that the purposes of the 2003 Act did not include the rehabilitation of prisoners (see para 126).
+He expressed the same opinion as Lord Brown as to the enduring effect of the decision on dangerousness made by the trial judge at the time of sentencing.
+At para 103 he said: As the court is required to make an informed predictive assessment at the date of sentence, and the justification for detention beyond the tariff period is found in the judgment of the court that an IPP is indeed necessary, I respectfully disagree with the views expressed by Laws LJ in the Divisional Court in R (Wells) v Parole Board [2008] 1 All ER 138, para 46 that what he described as further detention after the expiry of the tariff period was not at all justified by or at the time of sentence, for the very reason that the extent to which, or the time for which, the prisoner will remain a danger is unknown at the time of sentence .
+The justification for detention during the tariff period is of course spent; it is spent the moment the tariff expires.
+For the same reasons I am unable to accept the observations of Moses LJ in R (Lee) v Secretary of State for Justice in the Administrative Court [2008] EWHC 2326, para 22, no doubt reflecting the earlier judgment of Laws LJ, that the position of a prisoner whose level of dangerousness cannot be ascertained is the same as one who ceases to be a danger.
+The original justification for the sentence, namely his dangerousness, has ceased to exist.
+In my judgment detention beyond the tariff period is justified just because the sentencing court has decided that the prisoner would continue to be dangerous at the expiry of the punitive element of the sentence.
+The necessary predictive judgment will have been made.
+On one view the opinions of Lord Brown and Lord Judge as expressed in these passages suggest that the judgment, made at the time of sentencing that an IPP was required in order to protect the public, was not to be dislodged and remained fully effective until displaced by positive evidence, accepted by the Parole Board, that this was no longer the position.
+On that view, the circumstance that courses (which were the only means by which the prisoner might demonstrate his lack of dangerousness) had not been provided was neither here nor there.
+A softening of such a rigid stance can be detected, however, in other passages from the speeches of Lord Hope of Craighead, Lord Brown and Lord Judge.
+At para 51 Lord Brown said this: In my opinion, the only possible basis upon which article 5(1) could ever be breached in these cases is that contemplated by the Court of Appeal [2008] 1 WLR 1977, paras 61, 69 of their judgment namely after a very lengthy period without an effective review of the case.
+The possibility of an article 5(1) breach on this basis is not, I think, inconsistent with anything I said either in R (Noorkoiv) v Secretary of State for the Home Department [2002] 1 WLR 3284 or in R (Cawser) v Secretary of State for the Home Department [2004] UKHRR 101.
+Cawser, it is important to appreciate, was a case all about treating the prisoner to reduce his dangerousness, rather than merely enabling him to demonstrate his safety for release.
+To my mind, however, before the causal link could be adjudged broken, the Parole Board would have to have been unable to form any view of dangerousness for a period of years rather than months.
+It should not, after all, be forgotten that the Act itself provides for two year intervals between references to the Parole Board.
+And at para 15 Lord Hope had said this: It is just possible to conceive of circumstances where the system which the statutes have laid down breaks down entirely, with the result that the Parole Board is unable to perform its function at all.
+In that situation continued detention could be said to be arbitrary because there was no way in which it could be brought to an end in the manner that the original sentence contemplated.
+At para 128 Lord Judge echoed the remarks of Lord Brown quoted at para 40 above when he said: I should perhaps add that, like Lord Brown, I should not exclude the possibility of an article 5(1) challenge in the case of a prisoner sentenced to IPP and allowed to languish in prison for years without receiving any of the attention which both the policy and the relevant rules, and ultimately common humanity, require.
+James v United Kingdom
+When the Court of Appeal gave judgment in the present case, the House of Lords decision in James was the most recent judicial pronouncement on whether a failure to provide courses by which prisoners might demonstrate their suitability for release could give rise to a breach of article 5(1).
+Two months after the Court of Appeal ruling, the European Court of Human Rights (ECtHR) handed down its judgment in James v United Kingdom (2012) 56 EHRR 399.
+The court did not agree with the finding of the House of Lords that the purposes of the 2003 Act did not include the rehabilitation of prisoners.
+At para 209 of its judgment the court said: The court is satisfied that in cases concerning indeterminate sentences of imprisonment for the protection of the public, a real opportunity for rehabilitation is a necessary element of any part of the detention which is to be justified solely by reference to public protection.
+In the case of the IPP sentence, it is in any event clear that the legislation was premised on the understanding that rehabilitative treatment would be made available to those prisoners on whom an IPP sentence was imposed, even if this was not an express objective of the legislation itself.
+Indeed, this premise formed the basis upon which a breach of the Secretary of State's public law duty was found and confirmed (see paras 31, 104 and 107 above).The court accordingly agrees with the applicants that one of the purposes of their detention was their rehabilitation.
+Since the applicants in James did not have the opportunity to embark on rehabilitative courses, successful completion of which was indispensable to their establishing their suitability for release, their continued detention was found to be arbitrary.
+Significantly at para 221 the court said this: following the expiry of the applicants' tariff periods and until steps were taken to progress them through the prison system with a view to providing them with access to appropriate rehabilitative courses their detention was arbitrary and therefore unlawful within the meaning of article 5(1)1 of the Convention.
+The arbitrariness (and, on that account, the unlawful nature) of the continued detention stemmed from their detention while the means of bringing it to an end remained elusive for the prisoners.
+This was not directly related to the question of the causal link between the detention and the original sentence, however.
+The causal link survived.
+The sentence was imposed because of the perception that the prisoners posed a threat to the public if released. (The perception was grounded, at least to a certain extent, on a presumption built into the statute but it is unnecessary for present purposes to go into that).
+Until the risk of danger to the public could be dispelled the causal link with that part of the sentence which required the detention of the prisoner remained intact.
+It was because there was no means of ascertaining whether the danger had dissipated that the detention had become arbitrary.
+Logically, therefore, so soon as a means of assessing the risk of danger to the public became available through the courses which the prisoner was able to undertake, in order to demonstrate that he no longer constituted such a danger, the detention was no longer to be regarded as arbitrary.
+Thus, the court said in para 221 that until steps were taken to progress [the prisoners] through the prison system (emphasis added) with a view to enabling them to undertake courses that would reduce or eliminate the danger that they presented and until, thereby, they were able to demonstrate their suitability for release, their detention remained arbitrary.
+When the necessary steps were taken, detention which had until then been arbitrary, was no longer so.
+This analysis stands apart from the question of the causal link between the original sentence and the reasons for continued detention.
+The original sentence is premised on the existence of a danger to the public which must be extinguished before release is to be ordered.
+Until that extinguishment can be demonstrated, the reasons for the original sentence (and therefore the causal link) endure.
+But if one deprives the prisoner of the opportunity to show that the danger no longer obtains the detention is arbitrary, not because the causal link does not continue, but because the prisoner cannot show that the risk on which it is founded is no longer present.
+The lawfulness of the appellants detention is not to be approached, therefore, solely in terms of whether the causal link between his original sentence and his current detention has been broken.
+The essential question is whether he has had an opportunity to demonstrate that the reasons that he was considered to present a threat to society no longer apply.
+If he does not have such an opportunity, then clearly, on the authority of James v United Kingdom, his continued detention is arbitrary.
+Whether it follows that he must, therefore, be released is an altogether different question.
+In the present case it is clear that the appellant did indeed have an opportunity to show that he no longer posed a risk to the public.
+The Court of Appeals judgment dismissing his claim that the review of his detention was not compliant with article 5(4) disposes conclusively of that issue.
+He has had what has been found to be a fully ample chance to show that he can be safely released.
+There is, therefore, no question of his continued detention being arbitrary.
+Moreover, the review of the panels decision, foreshadowed in their ruling, is already under way and we were informed in the course of the hearing that this is likely to be completed soon.
+The more problematic, although, in terms of this case, academic, question is whether, if it is shown that a prisoner has not had a chance to demonstrate that his continued detention is no longer necessary and if, for that reason, that detention constitutes a violation of article 5(1) and he is therefore unlawfully detained, he must be released.
+In James v United Kingdom the ECtHR found that a detention which was arbitrary and unlawful could be restored to a condition of lawfulness by making accessible the courses whose unavailability were the cause of the arbitrary and unlawful detention.
+What is not completely clear from the judgment is whether, during the period that the detention was unlawful, the prisoners were entitled to be released.
+Observations made in para 217 of the courts judgment are somewhat ambiguous on the question whether release is the automatic consequence of a finding of violation of article 5(1): The court acknowledges that the IPP sentence was intended to keep in detention those perceived to be dangerous until they could show that they were no longer dangerous.
+The Government have suggested that, in these circumstances, a finding of a violation of article 5(1) as a result of the lack of access to appropriate treatment courses would allow the release of dangerous offenders who had not yet addressed their risk factors.
+The court accepts that where an indeterminate sentence has been imposed on an individual who was considered by the sentencing court to pose a significant risk to the public at large, it would be regrettable if his release were ordered before that risk could be reduced to a safe level.
+It is not immediately obvious whether the court was there indicating that
+such a regrettable eventuality should be avoided or that the outcome, although unwelcome, was inescapable.
+Since there was no violation of article 5(1) in this case and it is therefore unnecessary to reach a final conclusion on it, I would prefer to leave the decision on this vexed question for a future occasion when the issue arises directly.
+I would dismiss the appeal.
+I agree that this appeal must be dismissed for the reasons given by Lord LORD MANCE (with whom Lord Clarke, Lord Hughes and Lord Toulson agree)
+I add some words on the decision of the Fourth Section of the European Court of Human Rights in James v United Kingdom (2012) 56 EHRR 399, which, as Lord Kerr remarks, leaves at least one question problematic.
+On a straightforward reading of the European Convention on Human Rights, article 5(1) establishes the right to liberty and addresses the circumstances in which a person may be deprived of liberty, while article 5(4) provides that anyone deprived of his liberty has the right to speedy access to court and to a decision whether such deprivation was in circumstances permitted under article 5(1).
+James, like the present case, concerned prisoners whose detention was justified by the authorities on the ground that it constituted the lawful detention of a person after conviction by a competent court within article 5(1)(a).
+But, after the expiry of their tariff period, their continued detention also depended under domestic law upon whether or not they could satisfy the Parole Board that such detention was no longer necessary for the protection of the public.
+In the absence of appropriate available courses, they could not hope to satisfy the Parole Board of this.
+Nonetheless, under the relevant domestic law, the result was on the face of it that they remained lawfully detained under the original court sentence.
+Equally, nothing was stopping them going to court to test the validity of their detention, but it would not on the face of it have done them any good to do so.
+What they could and did in James do was seek by judicial review orders that they be provided with the courses that they needed.
+The House of Lords in James [2010] 1 AC 553 (sub nom R (Walker) v Secretary of State for Justice (Parole Board intervening)) recognised that prisoners in this invidious position had a public law entitlement to such orders by way of judicial review, but held that they had no complaint by reference to the Human Rights Convention rights.
+The European Court of Human Rights in finding that the circumstances also constituted a cause of complaint under the Convention had to locate the violation somewhere in the Convention.
+It located it in article 5(1): see paras 221 and 231 and holding (3).
+It did so on the basis that the detention was arbitrary and therefore unlawful under article 5(1) during the relevant periods of delay that is, during the periods after expiry of the relevant tariffs and before steps were taken to progress the prisoners through the system by moving them to first stage prisons where courses would be available, and also, in the case of Lee, during a subsequent period when he was still not offered any course: para 231.
+Two further issues were raised before the Court of Human Rights in James, under respectively articles 5(4) and 13.
+Under article 5(4), all three applicants complained that, because there had been no meaningful review of the legality of [the prisoners] post tariff detention as a result of the failure to operate a system [of courses] properly, there had been a violation of article 5(4): para 223.
+The court held that the complaint under article 5(4) gave rise to no separate issue, and said that it followed that it could not make any award in respect of the alleged violation of article 5(4): paras 226 and 243.
+It is not clear to me whether or not that means that the court thought that article 5(4) had been breached.
+The second further issue was raised under article 13 by Mr Wells and Mr Lee, but the court regarded article 5(4) as a lex specialis in relation to the more general requirements of article 13, and so dealt with this issue also under article 5(4): para 229.
+The complaint was that the obstacle under primary legislation to the prisoners release until they satisfied the Parole Board that they were no longer a public danger meant that, even if they had succeeded in their challenge to their detention, they would not have had any effective remedy in respect of the violation: para 224.
+In dealing with this, the court noted that Mr Wells and Mr Lee had been able to commence judicial review proceedings to obtain orders that they be provided with the relevant courses and that their commencement of such proceedings had led to their speedy transfer to first stage prisons for that purpose.
+Accordingly, they had failed to establish that the combination of the Parole Board and judicial review proceedings could not have resulted in an order for their release and, so, there had been no violation in this regard: para 232.
+This reasoning does not explicitly address the further five month delay in actually providing courses which Mr Lee suffered.
+But the underlying thinking may again be that Mr Lee could have commenced further judicial review proceedings which, in combination with the Parole Boards power to release once satisfied that he no longer presented a public danger, constituted an effective remedy.
+The courts reference in James to the detention as unlawful under article 5(1) during periods when courses were not being duly provided is problematic.
+It suggests that the circumstance identified in article 5(1)(a) that is the lawful detention of a person after conviction by a competent court had ceased to exist.
+If that were so, then logically that implies that the prisoner should have been at once released.
+In its forensic endeavour to persuade the Strasbourg Court not to find any violation of article 5(1), the United Kingdom Government itself suggested that a finding of such a violation would allow [logically, require] the release of dangerous offenders who had not yet addressed their risk factors: para 217.
+The court did not face up directly to the logic of this submission, but contented itself with saying that it would be regrettable if . release were ordered before that risk could be reduced to a safe level, adding only that However, this does not appear to be the case here: para 217.
+Although the submissions before the court took this extreme form, which much of the courts description of the issues echoed (see paras 175 onwards), I doubt whether it follows axiomatically from the courts judgment that a prisoner who was not being given appropriate courses could assert a right to release until such courses became available.
+The suggestion that this follows would lose its basis, if the court were to be understood as implying into article 5 an ancillary duty on the state to provide the courses which would enable prisoners to progress towards release in accordance with domestic law.
+That is in substance what the court was doing in, for example, para 206, where it said that it would be irrational to have a policy of making release dependent on a prisoner undergoing a treatment course without making reasonable provision for such courses.
+There are, I think, some other indications in the courts judgment in James that, if the matter had to be decided, the court would not expect that prisoners should be released during periods when courses were not being duly provided.
+First, the court said that the detention was only arbitrary and in breach of article 5(1) during the periods in which the prisoner were not progressed in their sentences (para 231) and that, once they had access to relevant courses their detention once again became lawful: para 244.
+It is difficult to think that the court would expect prisoners to be released for a period, eg until appropriate first stage prison places and courses were available, and then, by some mechanism, recalled.
+Second, there is the way in which the court dealt with Mr Wells and Mr Lees complaint that the pre condition to their release introduced by primary legislation, constituted by the requirement to satisfy the Parole Board that they were no longer a public danger, prevented them having an effective remedy under article 13.
+The court said nothing to question the legitimacy of this requirement during periods when courses were not available.
+On the contrary, it recited that Pursuant to the 1997 and 2003 Acts, the release of a prisoner sentenced to an IPP could be ordered by the Parole Board, having satisfied itself that the individual was no longer dangerous: para 231.
+It is however true that the court in its further reasoning was only concerned with, and accepted, the effectiveness of the judicial remedy available through the combination of the Parole Board and the judicial review proceedings which Mr Wells and Mr Lee actually took: para 232.
+Third, I find significant the courts reasoning in rejecting the claims to recover in respect of the violation of article 5(1) any damages over and above sums for distress and frustration: para 244.
+The court rejected such claims because, it said, it cannot be assumed that, if the violations in the present cases had not occurred, the applicants would not have been deprived of their liberty: para 244.
+That reasoning makes good sense, if the obligation to progress prisoners towards courses, which could facilitate their release, was an obligation ancillary to their continued detention.
+They would not be entitled to release, but they could claim damages for the ancillary and arbitrary failure to enable them to progress towards release.
+However, any damages claimed for loss of liberty (as distinct from damages for distress and frustration on account of the delays in providing courses) would depend upon showing that, had they been moved earlier to first stage prisons and given courses sooner, they would in fact have been released sooner.
+That, the court in effect said, had not been shown, and could not be assumed: para 244.
+This explanation of the courts reasoning loses force if the court thought that the prisoners should have been released during any periods when they were not being duly progressed through the prison system.
+On that basis, the prisoners continued detention would simply be illegitimate, and, as such, damages for wrongful detention should follow.
+It is not normally possible for a public authority, after a wrongful arrest or imprisonment, to argue that, if it had not been guilty of a wrongful arrest or imprisonment, then it could and would have taken different steps which would have achieved a rightful arrest or imprisonment.
+And, even if such an argument were possible, the onus would surely be on the public authority to show that it could and would have taken those different steps with that result.
+It would not be sufficient to put the onus on the wrongfully detained prisoners to show that the public authority could not or would not have taken such steps.
+So the courts statement that it cannot be assumed (para 244) that the prisoners would not anyway have been detained would not have been appropriate.
+obligation to progress the prisoners through the prison system arising by implication from, rather than directly under the terms of, article 5(1).
+Such a breach would not mean that the prisoners were entitled to be released, but would entitle them to recover any damages which they could show had been suffered as a result of that breach.
+If this were to be regarded as the correct analysis, then their continuing detention would continue to be legitimate under the Convention as well as under domestic law, until the Parole Board was satisfied that their detention was no longer necessary for the protection of the public.
+For these reasons, despite the courts description in para 221 of the detention as arbitrary and unlawful under article 5(1), I believe it to be well arguable that what was in truth being identified was a breach of an ancillary
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+The issue in this case is whether and in what circumstances a judge who has announced her decision is entitled to change her mind.
+The issue arises in the context of fact finding hearings in care proceedings in a family court, but it could obviously arise in any civil or family proceedings.
+So a subsidiary question is whether the principles are any different in that context.
+One difference is that section 1(2) of the Children Act 1989 requires that any court hearing a case in which a question about the upbringing of a child arises is to have regard to the general principle that delay in determining it is likely to prejudice the welfare of the child.
+This court heard the appeal on 21 January 2013.
+The final hearing to determine the future of the child in question was fixed to take place the following week.
+Accordingly, we announced our decision to allow the appeal at the end of the hearing, with judgment to follow.
+The facts
+The proceedings concern a little girl whom I shall call Susan, who was
+born on 8 July 2010, and her elder half brother whom I shall call Terry, who was born on 30 January 2006.
+On 21 September 2010, Susan was taken to hospital by her mother and found to have suffered a number of fractures to her ribs, clavicle and long bones, as well as some bruising to her face and head.
+Care proceedings were brought in respect of both children three days later.
+Susan was placed in foster care, where she has remained ever since.
+Terry was initially removed from his home with his maternal grandparents, but was returned to them after a few days, and has remained with them ever since.
+On 15 November 2010, Judge Penna directed that the case be listed for a fact finding hearing to determine the nature and extent of Susans injuries, their causation whether accidental or non accidental, and if non accidental, the identity of the perpetrator or perpetrators.
+That hearing began on 31 May 2011.
+Unfortunately, it became necessary to adjourn the hearing on the second day, because of the mothers mental health.
+She suffers from a serious mental illness and was unable to cope with giving evidence in the ordinary way.
+The hearing was resumed on 26 September 2011, with the mother giving evidence via a video link, but she was also unable to cope with this.
+On 29 September the judge concluded that the mother lacked the capacity to take part in the proceedings and invited the Official Solicitor to act as her litigation friend.
+This he agreed to do on 20 October 2011.
+The fact finding hearing resumed on 22 November and concluded on 25 November 2011.
+The mother gave no more evidence but the father gave evidence over two days.
+Thus the father was cross examined but the mother was not.
+The judge also heard oral evidence from various family members and from the paediatric sister at the time of Susans admission to hospital, the health visitor, and the mothers community psychiatric nurse.
+She had written reports from the medical witnesses about the nature and causation of Susans injuries.
+By that stage it was common ground that these were non accidentally caused and that the only possible perpetrators were the mother and the father.
+The judge also had written psychiatric reports about the mothers mental condition.
+After the conclusion of the evidence, the parties made written submissions.
+The local authority, in a noticeably balanced account of the evidence, submitted that it was not possible to identify a sole perpetrator on the evidence.
+The mother argued that the father was sole perpetrator and the father argued that the mother was sole perpetrator.
+The childrens guardian took a neutral stance.
+The judge gave her first judgment orally on 15 December 2011.
+When it was partially transcribed much later (the recording started after the judge had begun to deliver judgment but we are told that nothing of substance has been missed), the judgment was headed Preliminary Outline Judgment approved by the Court.
+The transcript consists of only 15 paragraphs.
+It does not deal at all with the specifics of the injuries to the child, their nature, or their timing.
+It concentrates on the stresses upon the family caused by financial problems, the mothers mental illness, and caring for a young baby who cried often and was not easy to feed.
+It concluded that the pressures upon the father, who took the lions share of the responsibility for looking after Susan, became intolerable and he snapped.
+So the finding was that the father was the perpetrator, although the judge took care to stress that under ordinary circumstances he was a loving and competent parent and had a valuable role to play in his daughters life.
+The judge also stated that if any party would be assisted by the provision of detail in relation to specific points, she would address them.
+At that hearing and by email the following day, counsel for the father asked her to address a number of matters in an addendum to her judgment: the context in which both mother and father had given their evidence; the mothers opportunity to have perpetrated the injuries; the inconsistencies in the mothers account; the mothers lack of parenting skills and what she did when the baby cried and the father was not there.
+This accords with the guidance given in In re A (Children) (Judgment: Adequacy of Reasoning) (Practice Note), [2011] EWCA Civ 1205, [2012] 1 WLR 595.
+At para 16, Munby LJ stressed that: . it is the responsibility of the advocate, whether or not invited to do so by the judge, to raise with the judge and draw to his attention any material omission in the judgment, any genuine query or ambiguity which arises on the judgment, and any perceived lack of reasons or other perceived deficiency in the judges reasoning process.
+The order drawn up as a result of the judgment of 15 December recorded that the Court provided a summary judgment in respect of the fact finding hearing where the father was seen to have caused the injuries to [the child].
+It went on to order the next steps in the case, including an experts meeting before a further directions hearing on 23 January 2012, with the final hearing provisionally booked for 20 February 2012.
+Unbeknown to anyone at the time, that order was not formally sealed by the Manchester County Court until 28 February 2012.
+The local authoritys care plan was for Susan to be placed with the maternal grandparents where her half brother Terry was already living.
+At the directions hearing on 23 January 2012, it was recorded that the court would use three days of the hearing beginning on 20 February to determine whether Susan should be placed in the grandparents care.
+The judge ordered that a perfected judgment would be distributed by 9 February and deemed to have been handed down on the date of distribution.
+However, on 15 February, the judge delivered a bombshell in the shape of a written perfected judgment.
+This expanded upon the earlier judgment in some respects: it gave an account of the injuries, concluded that they were non accidental, that one of the parents must have been the perpetrator, that the same parent was likely to have inflicted all the injuries, that Susan had been injured during the course of the day before she was taken to hospital or the two or three days beforehand, and that she had been injured on (at least) one occasion before that.
+However, it reached a different conclusion from the conclusion reached in December: Given the uncertain nature of the evidence after the passage of so much time I am unable to find to the requisite standard which of the parents it was who succumbed to the stress to which the family was subject.
+It could have been either of them who injured [Susan] and that is my finding.
+At the hearing on 20 February, counsel for the mother asked the judge to explain why she had changed her mind and not given the parties an opportunity to make further submissions before doing so.
+She delivered a short extempore judgment apologising to the parties, although she did not view the development of this matter as a complete change of direction and the scenario which I posited when giving my view in December remains a possibility.
+She went on, the decision I reached had to be reached on the balance of probabilities and when I considered the matter carefully I could not exclude the mother because I was not sufficiently satisfied that no time had arisen when she had been alone with the child and might have caused some injury.
+The order made on 20 February recorded that The mother through her counsel, supported by the other parties, sought clarification of the reasons behind the courts determination that it could not identify a sole perpetrator as between the mother and the father in its judgment of 15 February 2012, compared with the conclusion indicated in the preliminary judgment of 15 December 2011.
+It was ordered that the hearing listed for 23 February should be for case management, with a view to a further assessment of the father as a carer for Susan, rather than for considering the placement with the maternal grandparents.
+The mother, the Official Solicitor still acting as her litigation friend, was granted permission to appeal against the February judgment.
+The Grounds of Appeal complained, firstly, that the second judgment was flawed and/or unjust.
+No adequate reasons have been provided to account for the change of decision and to place the mother back into the pool of possible perpetrators, and secondly, that no opportunity to make further representations was afforded to the mother beforehand.
+Before the appeal hearing, the mother and the childrens guardian proposed that the case should be remitted to the judge for amplification and clarification of her change of mind.
+The local authority and the father argued that it had been adequately explained.
+No one was suggesting that the December findings be restored without more ado.
+At the outset of the appeal hearing on 14 June 2012, the court suggested to the mothers counsel that she should be arguing that the judge was functus officio after the December judgment had been recorded in a perfected order.
+Only after inquiries were made of the Manchester Civil Justice Centre did it emerge that the order had not in fact been sealed until 28 February.
+Nevertheless, the Court of Appeal, by a majority, not only allowed the mothers appeal but ordered that the findings of 15 December 2011 stand as the findings of fact as to the perpetration of the injuries, the judgment of 15 February 2012 was quashed, and all reference to it excised from the orders made on 20 and 23 February.
+The father now appeals to this court.
+With the support of the local authority, the childrens guardian and (tellingly) the maternal grandparents, he argues that the judge was entitled to change her mind and the February judgment should be restored.
+The mother, now acting on her own behalf, opposes this.
+Given the passage of time, no party is suggesting that the case be remitted, either for further clarification of the judges reasoning or for a rehearing.
+The judge has now recused It has long been the law that a judge is entitled to reverse his decision at any herself and the final hearing took place before His Honour David Gee in the week beginning 28 January 2013.
+The parties written submissions to this court spent some time discussing whether the majority in the Court of Appeal decided (a) that the judge had no jurisdiction to change her mind; or (b) that she had such a jurisdiction but should not have exercised it on the facts of this case.
+For reasons which will later appear, I believe that they must have meant (b), although there are passages, particularly in the judgment of Sir Stephen Sedley which are more consistent with (a).
+But we do not need to discuss what they really meant, as those are the very issues before this court.
+Rimer LJ dissented.
+He held that the judge did have jurisdiction and was entitled to exercise it in the way that she did.
+The jurisdiction
+time before his order is drawn up and perfected.
+The modern story begins with the Judicature Acts 1873 (36 & 37 Vict c 66) and 1875 (38 & 39 Vict c 77), which amalgamated the various common law, chancery and doctors commons jurisdictions into a single High Court and created a new Court of Appeal for England and Wales.
+In In re St Nazaire Company (1879) 12 Ch D 88, the Court of Appeal decided that there was no longer any general power in a judge to review his own or any other judges orders.
+Sir Richard Malins V C had permitted a petition to proceed which sought to vary an earlier order which he had made and which had been unsuccessfully appealed to the Court of Appeal.
+The Court of Appeal held that he had no power to do so.
+Sir George Jessel MR explained that the Judicature Acts had changed everything.
+Before they came into force, the Lord Chancellor, Vice Chancellor and Master of the Rolls had power to rehear their own decisions and, indeed, the decisions of their predecessors.
+He remarked that the hope of every appellant was founded on the change of the judge: p 98. (An example of Jessel MR revisiting one of his own orders is In re Australian Direct Steam Navigation (Millers Case) (1876) 3 Ch D 661).
+But such an application was in the nature of an appeal and jurisdiction to hear appeals had now been transferred to the Court of Appeal.
+Thesiger LJ added that, whatever may have been the practice in the High Court of Chancery before the Judicature Act as to the review of their decisions or the rehearing of their decisions, nothing can be clearer than that there was nothing analogous to that in the Common Law Courts 12 Ch D 88, 101.
+The courts conclusions harmonised the practice in all Divisions of the newly amalgamated High Court.
+Nothing was said in In re St Nazaire about the position before the judges order was perfected.
+In re Suffield and Watts, Ex p Brown (1888) 20 QBD 693, a High Court judge had made an order in bankruptcy proceedings which had the effect of varying a charging order which he had earlier made under the Solicitors Act 1860 (23 & 24 Vict c 127).
+All the members of the Court of Appeal, citing In re St Nazaire, agreed that he had no power to do this once his order had been drawn up and perfected.
+Unlike the bankruptcy jurisdiction, the Solicitors Act gave no power of variation.
+As Fry LJ put it, at p 697: So long as the order has not been perfected the judge has a power of re considering the matter, but, when once the order has been completed, the jurisdiction of the judge over it has come to an end.
+Strictly speaking, the reference to what may be done before the order is perfected was obiter, but that this was the law was established by the Court of Appeal no later than the case of Millensted v Grosvenor House (Park Lane) Ld [1937] 1 KB 717, where the judge had revised his award of damages before his order was drawn up and the court held that he was entitled to do so.
+Thus there is jurisdiction to change ones mind up until the order is drawn up and perfected.
+Under the Civil Procedure Rules (rule 40.2(2)(b)), an order is now perfected by being sealed by the court.
+There is no jurisdiction to change ones mind thereafter unless the court has an express power to vary its own previous order.
+The proper route of challenge is by appeal.
+On any view, therefore, in the particular circumstances of this case, the judge did have power to change her mind.
+The question is whether she should have exercised it.
+Exercising it
+As Wilson LJ pointed out in Paulin v Paulin [2009] EWCA Civ 221, [2010] 1 WLR 1057, para 30(c), Until 1972 the courts made no attempt to narrow the circumstances in which it would be proper for a judge to exercise his jurisdiction to reverse his decision prior to the sealing of the order.
+He referred to In re Harrisons Share Under a Settlement [1955] Ch 260, in which the judge recalled an order approving the variation of a settlement on behalf of infant, unborn and unascertained persons, because after he had pronounced it but before it was formally drawn up the House of Lords had decided that there was no power to make such an order.
+The Court of Appeal rejected the submission that the order could only be corrected for manifest error or omission (as can a perfected order under the slip rule): When a judge has pronounced judgment he retains control over the case until the order giving effect to his judgment is formally completed: pp 283 284.
+The court went on to say that This control must be . exercised judicially and not capriciously but that was all.
+The court clearly contemplated that people might act upon an order before it was drawn up, but they did so at their own risk.
+In 1972, however, the Court of Appeal decided In re Barrell Enterprises
+[1973] 1 WLR 19, in which it refused to allow the re opening of an unsuccessful appeal in which judgment had been given some months previously dismissing the appeal but the order had for some reason never been drawn up.
+Russell LJ, giving the judgment of the court, stated, at pp 23 24, that: When oral judgments have been given, either in a court of first instance or on appeal, the successful party ought save in the most exceptional circumstances to be able to assume that the judgment is a valid and effective one.
+The cases to which we were referred in which judgments in civil courts have been varied after delivery (apart from the correction of slips) were all cases in which some most unusual element was present.
+There was no such justification in that case.
+In Paulin [2010] 1 WLR 1057, 1070, Wilson LJ also pointed out that the limitation thus placed on the proper exercise of the jurisdiction was not universally welcomed.
+In Pittalis v Sherefettin [1986] 1 QB 868, Dillon LJ had in effect emasculated [it] into insignificance by pointing out that it was exceptional for a judge to be satisfied that the order he had previously pronounced was wrong.
+In Stewart v Engel [2000] EWCA Civ 362, [2000] 1WLR 2268, the Court of Appeal unanimously held that the power to recall orders before perfection had survived the coming into force of the Civil Procedure Rules 1998.
+However, for some reason (probably the submissions of counsel) they termed this the Barrell jurisdiction.
+By a majority, they affirmed the Barrell limitation, which Sir Christopher Slade said must apply a fortiori where the judgment is a formal written judgment in final form, handed down after the parties have been given the opportunity to consider it in draft and make representations on the draft: pp 2274, 2276.
+Clarke LJ dissented on this point.
+He did not think that the court was bound by Barrell to look for exceptional circumstances.
+He clearly took as a starting point the overriding objective in the Civil Procedure Rules of enabling the court to deal with cases justly.
+He considered that the judge had been right to direct himself that the examples given by Neuberger J in In re Blenheim Leisure (Restaurants) Ltd (No 3), The Times, 9 November 1999, a plain mistake by the court, the parties failure to draw to the courts attention a plainly relevant fact or point of law and the discovery of new facts after judgment was given were merely examples: How the discretion should be exercised in any particular case will depend upon all the circumstances: [2000] 1WLR 2268, 2285 .
+Other formulations of the Barrell principle have been suggested.
+In Cie Noga DImportation et dExportation SA v Abacha [2001] 3 All ER 513, Rix LJ, sitting in the Commercial Court, referred at para 42 to the need to balance the concern for finality against the proper concern that courts should not be held by their own decisions in a straitjacket pending the formality of drawing up the order.
+He went on, at para 43: Provided that the formula of exceptional circumstances is not turned into a straitjacket of its own, and the interests of justice and its constituents as laid down in the overriding principle are held closely to mind, I do not think that the proper balance will be lost.
+Clearly, it cannot be in every case that a litigant should be entitled to ask the judge to think again.
+Therefore, on one ground or another the case must raise considerations, in the interests of justice, which are out of the ordinary, extraordinary or exceptional.
+An exceptional case does not have to be uniquely special.
+Strong reasons is perhaps an acceptable alternative to exceptional circumstances.
+It will necessarily be in an exceptional case that strong reasons are shown for reconsideration.
+In Robinson v Fernsby [2003] EWCA Civ 1820, [2004] WTLR 257 May LJ
+commented that that expression [exceptional circumstances] by itself is no more than a relatively uninformative label.
+It is not profitable to debate what it means in isolation from the facts of a particular case (para 94).
+Peter Gibson LJ commented, at para 120: With one possible qualification it is in my judgment incontrovertible that until the order of a judge has been sealed he retains the ability to recall the order he has made even if he has given reasons for that order by a judgment handed down or orally delivered.
+Such judicial tergiversation is in general not to be encouraged, but circumstances may arise in which it is necessary for the judge to have the courage to recall his order. If . the judge realises that he has made an error, how can he be true to his judicial oath other than by correcting that error so long as it lies within his power to do so? No doubt that will happen only in exceptional circumstances, but I have serious misgivings about elevating that correct description of the circumstances when that occurs as exceptional into some sort of criterion for what is required .
+The possible qualification was when the judgment has been reasonably relied upon by a party who has altered his position irretrievably in consequence.
+Thus one can see the Court of Appeal struggling to reconcile the apparent statement of principle in Barrell [1973] 1 WLR 19, coupled with the very proper desire to discourage the parties from applying for the judge to reconsider, with the desire to do justice in the particular circumstances of the case.
+This court is not bound by Barrell or by any of the previous cases to hold that there is any such limitation upon the acknowledged jurisdiction of the judge to revisit his own decision at any time up until his resulting order is perfected.
+I would agree with Clarke LJ in Stewart v Engel [2000] 1 WLR 2268, 2282 that his overriding objective must be to deal with the case justly.
+A relevant factor must be whether any party has acted upon the decision to his detriment, especially in a case where it is expected that they may do so before the order is formally drawn up.
+On the other hand, in In re Blenheim Leisure (Restaurants) Ltd, Neuberger J gave some examples of cases where it might be just to revisit the earlier decision.
+But these are only examples.
+A carefully considered change of mind can be sufficient.
+Every case is going to depend upon its particular circumstances.
+Exercising the discretion in this case
+If that be the correct approach, was this judge entitled to exercise her discretion as she did? Thorpe LJ concluded (at para 56) that she was bound to adhere to the conclusion in her December judgment, having recited (at para 55) the clarity of the conclusion reached, the general assumption that the order had been perfected, the general implementation of her conclusion, her adherence to it at the hearing on 23 January, and the absence of any change in the circumstances and the general slackness that left the order unsealed.
+He was also somewhat puzzled as to why the result of her change of mind was seemingly to elevate the father from low to first consideration as the primary carer, albeit the rationality of that elevation is not clear to me, given that he remained a suspected perpetrator (para 56).
+Sir Stephen Sedley held that something more than a change in the judges mind was required, because it will only be exceptionally that the interests of finality are required to give way to the larger interests of justice (paras 79, 80).
+Rimer LJ, on the other hand, held that the judge was honouring her judicial oath by correcting what she had come to realise was a fundamental error on her part. the judge would be presented with real difficulty in her future conduct of this case were she required to proceed with it on the basis of a factual substratum that she now believes to be wrong.
+The court should not be required to make welfare decisions concerning a child on such a false factual basis.
+It could not be in the interests of the child to require a judge to shut his eyes to the reality of the case and embrace a fiction.
+The Court of Appeal were, of course, applying an exceptionality test which in my view is not the correct approach.
+They were, of course, right to consider the extent to which the December decision had been relied upon by the parties, but in my view Rimer LJ was also correct to doubt whether anyone had irretrievably changed their position as a result.
+The care plan may have been developed (we do not have the details of this) but the childs placement had yet to be decided and she had remained where she was for the time being.
+The majority were, of course, also right to stress the importance of finality, but the final decision had yet to be taken.
+I agree with Rimer LJ that no judge should be required to decide the future placement of a child upon what he or she believes to be a false basis.
+Section 1(1) of the Children Act 1989 provides that where a court determines any question with respect to the upbringing of a child the welfare of the child shall be its paramount consideration.
+While that provision does not apply to procedural decisions made along the way, it has to govern the final decision in the case.
+Mr Charles Geekie QC, on behalf of the mother, argues that even if the judge was entitled to change her mind, she was not entitled to proceed in the way that she did, without giving the parties notice of her intention and a further opportunity of addressing submissions to her.
+As the court pointed out in Re Harrisons Share Under a Settlement [1955] Ch 260, 284, the discretion must be exercised judicially and not capriciously.
+This may entail offering the parties the opportunity of addressing the judge on whether she should or should not change her decision.
+The longer the interval between the two decisions the more likely it is that it would not be fair to do otherwise.
+In this particular case, however, there had been the usual mass of documentary material, the long drawn out process of hearing the oral evidence, and very full written submissions after the evidence was completed.
+It is difficult to see what any further submissions could have done, other than to re iterate what had already been said.
+For those reasons, therefore, we ordered that the fathers appeal against the decision of the Court of Appeal be allowed.
+No party had sought to appeal against the judges decision of 15 February 2012, so the welfare hearing should proceed on the basis of the findings in the judgment of that date.
+We were pleased subsequently to learn that agreement has now been reached that Susan should be placed with her half brother and maternal grandparents under a care order and, after a settling in period, have visiting and staying contact with her father and her paternal family.
+The local authority plan to work with both families with a view to both mother and father having unsupervised contact in the future and it is hoped that the care order will be discharged after a period of one to two years.
+But what if the order had been sealed?
+On the particular facts of this case, that is all that need be said.
+But what would have been the position if, as everyone thought was the case, the order made by the judge on 15 December 2011 had been formally drawn up and sealed? Whatever may be the case in other jurisdictions, can this really make all the difference in a care case?
+The Court of Appeal, despite having themselves raised the point, do not appear to have thought that it did.
+Sir Stephen Sedley said that it seemed to be of little or no consequence that the order recording the first judgment had not been sealed or that a final order in the case remained to be made (para 74).
+Both Thorpe and Rimer LJJ held that the relevant order in care proceedings is the final care order made at the end of the hearing.
+They expressly agreed with Munby LJ in In re A (Children: Judgment: Adequacy of Reasoning) [2011] EWCA Civ 1205, [2012] 1 WLR 595, para 21.
+This was a case in which the mother challenged the adequacy of the judges reasons for finding her complicit in the sexual abuse of her daughter in a fact finding hearing in care proceedings.
+Having quoted my observation in In re B (Children: Care Proceedings: Standard of Proof) (CAFCASS intervening) [2009] AC 11, para 76, that a split hearing is merely part of the whole process of trying the case and once completed the case is part heard, Munby LJ continued, at para 21: Consistently with this, the findings at a fact finding hearing are not set in stone so as to be incapable of being revisited in the light of subsequent developments as, for example, if further material emerges during the final hearing: see In re M and MC (Care: Issues of Fact: Drawing of Orders) [2003] 1 FLR 461, paras 14, 24.
+This court has since agreed with that proposition.
+In Re S B (Children)(Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678, all seven justices agreed that: It is now well settled that a judge in care proceedings is entitled to revisit an earlier identification of the perpetrator if fresh evidence warrants this (and this court saw an example of this in the recent case In re I (A Child) (Contact Application: Jurisdiction) (Centre for Family Law and Practice intervening) [2010] 1 AC 319). (para 46)
+There are many good reasons for this, both in principle and in practice.
+There are two legal issues in care proceedings.
+First, has the threshold set by section 31(2) of the 1989 Act been crossed? Secondly, what does the paramount consideration of the childs welfare require to be done about it? Much of the evidence will be relevant to both parts of the inquiry.
+It may be very helpful to separate out some factual issues for early determination, but these do not always neatly coincide with the legal issues.
+In this case, for example, there was no dispute that the threshold had been crossed.
+Nevertheless, it was convenient to attempt to identify who was responsible for the childs injuries before moving on to decide where her best interests lay.
+In such a composite enquiry, the judge must be able to keep an open mind until the final decision is 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, but particularly to the children, if the only way to correct such an error were by an appeal.
+This is reinforced by the procedural position.
+As Munby LJ pointed out in In re A [2012] 1 WLR 595, para 20, in the context of a fact finding hearing there may not be an immediate order at all.
+It was held in In re B (A Minor) (Split Hearings: Jurisdiction) [2000] 1 WLR 790 that the absence of an order is no bar to an appeal.
+Nevertheless, it would be very surprising these days if there were no order.
+In Re M and MC (Care: Issues of Fact: Drawing of Orders) [2002] EWCA Civ 499, [2003] 1 FLR 461, the Court of Appeal ruled that the central findings of fact made at a fact finding hearing should be the subject of recitals to an order issued there and then.
+But this is merely a recital in what is, on any view, an interlocutory order.
+Both 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 their previous case management orders: see CPR r 3.1(7) and rule 4.1(6) of the Family Procedure Rules 2010 (SI 2010/2955).
+This may be done either on application or of the courts own motion: CPR r 3.3(1), rule 4.3(1).
+It was the absence of any power in the judge to vary his own (or anyone elses) orders which led to the decisions in In re St Nazaire 12 Ch D 88 and In re Suffield and Watts, Ex p Brown 20 QBD 693.
+Where there is a power to vary or revoke, there is no magic in the sealing of the order being varied or revoked.
+The question becomes whether or not it is proper to vary the order.
+Clearly, that power does not enable a free for all in which previous orders may be revisited at will.
+It must be exercised judicially and not capriciously.
+It must be exercised in accordance with the over riding objective.
+In family proceedings, the overriding objective is enabling the court to deal with cases justly, having regard to any welfare issues involved: rule 1.1(1) of the Family Procedure Rules.
+It would, for the reasons indicated earlier, be inconsistent with that objective if the court could not revisit factual findings in the light of later developments.
+The facts of in In re M and MC [2003] 1 FLR 461 are a good example.
+At the fact finding hearing, the judge had found that Mr C, and not the mother, had inflicted the childs injuries.
+But after that, the mother told a social worker, whether accurately or otherwise, that she had inflicted some of them.
+The Court of Appeal ruled that, at the next hearing, the judge should subject the mothers apparent confession to rigorous scrutiny but that, if he concluded that it was true, he should alter his findings.
+The question is whether it makes any difference if the later development is simply a judicial change of mind.
+This is a difficult issue upon which the arguments are finely balanced, not least because the difference between a change of circumstances and a change of mind may not be clear cut.
+On the one hand, given that the basis of the general rule was the lack of a power to vary the original order and there undoubtedly is power to vary these orders, why should it make any difference in principle if the reason for varying it is that, on mature reflection, the judge has reached a different conclusion from the one he reached earlier? As Rimer LJ said in the current case at para 71, it cannot be in the best interests of the child to require the judge to conduct the welfare proceedings on the basis of a false substratum of fact.
+That would have been just as true if the December order had been sealed as it was when it had not.
+In this respect, children cases may be different from other civil proceedings, because the consequences are so momentous for the child and for the whole family.
+Once made, a care order is indeed final unless and until it is discharged.
+When making the order, the welfare of the child is the courts paramount consideration.
+The court has to get it right for the child.
+This is greatly helped if the judge is able to make findings as to who was responsible for any injuries which the child has suffered.
+It would be difficult for any judge to get his final decision right for the child, if, after careful reflection, he was no longer satisfied that his earlier findings of fact were correct.
+Mr Geekie, on behalf of the mother, also argued that the sealing of the order could not invariably be the cut off point.
+If a judge is asked, in accordance with the guidance given in English v Emery Reimbold & Strick Ltd (Practice Note) [2002] EWCA Civ 605 [2002] 1 WLR 2409, as applied to family cases in In re A [2012] 1 WLR 595, to elaborate his reasoning and in doing so realises that his original decision was wrong, should he not, as part of that process, be entitled or even required to say so? The answer to this point may very well be that the judge should indeed have the courage to admit to the Court of Appeal that he has changed his mind, but that is not the same as changing his order.
+That is a matter for the Court of Appeal.
+One argument for allowing a judicial change of mind in care cases is to avoid the delay inevitably involved if an appeal is the only way to correct what the judge believes to be an error.
+On the other hand, the disconcerting truth is that, as judges, we can never actually know what happened: we were not there when whatever happened did happen.
+We can only do our best on the balance of probabilities, after which what we decide is taken to be the fact: In re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2009] AC 11, para 2.
+If a judge in care proceedings is entitled simply to change his mind, it would destabilise the platform of established facts which it was the very purpose of the split hearing to construct; it would undermine the reports, other evidence and submissions prepared on the basis of the earlier findings; it would throw the hearing at the second stage into disarray; and it would probably result in delay.
+Furthermore, if a judge were entitled to change his mind, a party would presumably be entitled to invite him to do so.
+No doubt most judges would do their best to have no truck with the invitation.
+But could the party be prevented from pressing for the exercise of the jurisdiction on the basis that, in his first judgment, the judge had failed to weigh certain evidence sufficiently or at all? In effect the judge would be invited to hear an appeal against himself.
+There is a distinction between an appeal and a variation for cause.
+This is the principle underlying the basic rule that an order is final once sealed.
+The point does not arise in this case and it was not fully developed in the arguments before us.
+The arguments outlined above are so finely balanced that we shall refrain from expressing even a provisional view upon it.
+In our view the preferable solution would be to avoid the situation arising in the first place.
+A concluding comment
+courage and intellectual honesty to admit ones mistakes.
+The best safeguard against having to do so is a fully and properly reasoned judgment in the first place.
+A properly reasoned judgment in this case would have addressed the matters raised in counsels email of the 16 December.
+It would have identified the opportunities of each parent to inflict each of the injuries by reference to the medical evidence about the nature, manner of infliction and timing of those injuries and to the parents and other evidence about their movements during the relevant periods.
+It would have addressed the credibility of the evidence given by each parent, having regard in this case to the problems presented by the mothers mental illness.
+Had she done this, the judge might well have been able to explain why it was that she concluded that it was the father who had more than once snapped under the tension.
+But she did not do so, and it is a fair inference that it was the task of properly responding to the questions raised by counsel for the father which caused her to reconsider her decision.
+No doubt the judge was anxious, given the vicissitudes which had beset the fact finding hearing, to deliver her first judgment quickly so that the welfare hearing fixed for the following February could be maintained.
+But the subsequent history demonstrates all too clearly that this was a false economy.
+Had that judgment been properly reasoned, none of this would have happened.
+Furthermore, if the judge had not changed her mind, the father would have had the opportunity of appealing against her findings to the Court of Appeal.
+One extraordinary result of the Court of Appeals order in this case was that the findings against the father were restored without his having had the opportunity which he should have had of mounting a proper appeal against them.
+As Peter Gibson LJ pointed out in Robinson v Fernsby [2004] WTLR 257, para 120, judicial tergiversation is not to be encouraged.
+On the other hand, it takes
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+Is an asylum seeker or refugee who resists his or her return from the United Kingdom to Italy (the country in which she or he first sought or was granted asylum) required to establish that there are in Italy systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers . [which] amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment. (emphasis added).
+This formulation is taken from para 94 of R (NS) (Afghanistan) v Secretary of State for the Home Department [2013] QB 102.
+The mooted requirement that there be a systemic deficiency lies at the heart of this appeal.
+That is the first and principal issue.
+It also constitutes the critical finding of the Court of Appeal.
+But, somewhat unusually, it is an issue on which there is no significant dispute between the parties.
+The appellants, the interveners (UNHCR), and the respondent all assert and agree that the Court of Appeal was wrong to hold that the sole ground on which a second state is required to exercise its power under article 3(2) of Regulation 343/2003 to entertain a re application for asylum or humanitarian protection, and to refrain from returning the applicant to the state of first arrival, is that the source of risk to the applicant is a systemic deficiency, known to the former, in the latter's asylum or reception procedures (emphasis added) [2012] EWCA Civ 1336; [2013] 1 WLR 576, para 62.
+The parties are also agreed that the test laid down in Soering v United Kingdom (1989) 11 EHRR 439 on this issue continues to hold the field.
+That case had established that the removal of a person from a member state of the Council of Europe to another country is contrary to the European Convention on Human Rights (ECHR) where substantial grounds have been shown for believing that the person concerned . faces a real risk [in the country to which he or she is to be removed] of being subjected to [treatment contrary to article 3 of the Convention] para 91 of Soering.
+The Dublin II Regulation and domestic legislation
+Council Regulation 343/2003 is commonly known as the Dublin II Regulation.
+In certain circumstances it provides that asylum claims must be processed and acted on by the member state of the European Union in which an asylum seeker first arrives.
+Asylum seekers and those who have been granted asylum (refugees) may therefore be returned to the first member state by any other member state of the EU in which asylum seekers and refugees subsequently arrive.
+But where a person claims that his removal from the United Kingdom would expose him to the risk of breach of his human rights and/or article 3 ill treatment within the member state to which it is proposed to return him, he has a statutory right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 against a decision to remove him.
+This right is exercisable from within the United Kingdom unless the Secretary of State certifies the claim to be clearly unfounded.
+By virtue of section 92(4)(a) of the 2002 Act and of para 5(4) in Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004, claims concerning removals to a listed country (of which Italy is one) are to be certified as clearly unfounded unless the Home Secretary is satisfied that they are not.
+Such a certificate can be issued if "on any legitimate view" the claimants assertion that his enforced return would constitute a violation of his human rights would fail on appeal: R (Yogathas) v Secretary of State for the Home Department [2003] 1 AC 920, by Lord Hope at para 34; R (L) v Secretary of State for the Home Department [2003] EWCA Civ 25; [2003] 1 WLR 1230 and ZT (Kosovo) [2009] 1 WLR 348.
+The Home Secretary in each of these appeals has decided that the contention that Italy is in systemic breach of its material international obligations is clearly unfounded, and that there is no separate reason to abstain from removal.
+Certification that the claims are clearly unfounded has the effect of prohibiting any appeal while the applicant remains in the United Kingdom.
+The appellants circumstances
+Sir Stephen Sedley, who delivered the judgment of the court in the Court of Appeal, summarised the accounts given by the appellants in paras 13 to 28 of that judgment.
+The brief description of their circumstances which follows is drawn mainly from that synopsis.
+By way of preamble Sir Stephen correctly observed that, when deciding whether an asylum claim is capable of succeeding, it is customary to take the facts at their highest in the claimants favour.
+That is the approach that I intend to follow in my consideration of these cases.
+Where, therefore, it is stated that a particular event took place or that a certain factual proposition is established, this is for the purposes of considering the appellants cases at their reasonable height.
+It does not betoken any final finding or conclusion.
+EH is an Iranian national aged 32.
+He arrived in Italy on 11 November 2010 or thereabouts.
+It is recorded that his fingerprints were taken on that date.
+A short time later he left Italy and made his way to the United Kingdom.
+On 11 March 2011 he applied for asylum in this country on the ground that he had been tortured while a political detainee in Iran.
+When it became clear that he had first claimed asylum in Italy, the Italian authorities were contacted about EH.
+They failed to respond within the time stipulated in Dublin II and they were deemed to have accepted responsibility for his claim. (It appears that the Italian authorities subsequently accepted responsibility for the claim.) EHs claim was certified as being clearly unfounded.
+Removal directions were set.
+EH launched judicial review proceedings to challenge both the decision to certify and the removal directions.
+He claimed that there was a real risk that he would be subjected in Italy to inhuman and degrading conditions.
+He relied not on his own experience of reception in Italy, which was brief, but on that of others.
+There is an abundance of evidence that EH is now severely disturbed and suffering from PTSD and depression, both of which require treatment.
+The Court of Appeal found that there was a real risk that EH, whether as an asylum seeker or as an accepted refugee, will be homeless if returned to Italy.
+For the purposes of the present appeal that finding cannot be challenged.
+EM is an Eritrean national.
+It is believed that he was born on 8 January 1989.
+He is an Orthodox Pentecostal Christian.
+His father was of the same faith and had been arrested by the Eritrean authorities for having arranged prayer meetings at the family home.
+His uncle was concerned that EM would also be arrested on suspicion of following his fathers faith and made arrangements for him to leave Eritrea.
+EM arrived in Italy at Lampedusa, and was first recorded as being there on 21 August 2008.
+He was fingerprinted and placed in a hotel in Badia Tedalda in the Arezzo province.
+After about 2 months he and the other asylum seekers there were told that they must each pay 120 for further processing of their applications.
+Having no money, he and other asylum seekers, who were likewise without funds, were given train tickets to Milan.
+For some three weeks after he arrived there he was himself homeless and destitute, living among other asylum seekers in similar circumstances.
+A fellow asylum seeker helped him to travel clandestinely to the United Kingdom, where he claimed asylum on 11 November 2008.
+His fingerprints were found to correspond with fingerprints on record in Italy.
+On 18 November 2008 Italy was asked to accept responsibility for his claim and, having failed to respond, was deemed to have accepted responsibility.
+Removal directions were set, but were challenged by an application for judicial review.
+On 1 June 2010 the Home Secretary certified EM's asylum claim as clearly unfounded.
+This was also challenged in the judicial review proceedings.
+AE fled from Eritrea because she and her husband had been ill treated by the authorities after their arrest on suspicion that her husband was helping people to leave the country illegally.
+She arrived in Italy in August 2008 and was screened.
+After this she was placed in a hotel at Bibbiano in the north of Italy in the Emilia Romagna region.
+She was accommodated there for some three months and about halfway through her stay she was interviewed about her asylum claim.
+At the end of that period, AE was recognised as a refugee and granted a five year residence permit.
+At about the same time she and other inhabitants of the hotel were told that it was too expensive to house them there and they were sent to a place that she knew as Aruso but was probably Arezzo.
+She was given accommodation in crowded and insanitary premises which she was obliged to share with other women and with men.
+Vouchers which she was given for food ran out after two weeks and she depended on charities for food after that.
+After three months they were told that they had to leave.
+AE and a friend went back to Bibbiano.
+They were refused accommodation but managed to contact a friend who let them stay with him for a month, sharing a room with three men.
+They left after one of the men tried to rape AE.
+She and her friend managed to get train tickets to France and she then secretly boarded a lorry which took her to the United Kingdom, arriving here on 19 January 2010.
+Following unsuccessful judicial review proceedings she was returned to Italy on 15 October 2010.
+She then found herself homeless and destitute in Milan.
+In desperation she was forced to live in a squat where she was repeatedly raped by a number of men who threatened her with reprisals if she reported them.
+Finally, with 100 borrowed from a fellow Eritrean, she made her way back to this country, where she was detained on arrival.
+A decision was made to remove her again to Italy.
+Her claim that to do so would violate her human rights was certified by the Home Secretary as clearly unfounded, and an application for permission to seek judicial review of the certificate was dismissed.
+Psychiatric evidence was submitted to the Home Secretary to the effect that AE was traumatised as a result of her experiences in Italy and suicidal at the prospect of being returned there.
+It was contended that to return her to Italy would violate her rights under article 3 of ECHR.
+The Home Secretary rejected an application to use her discretionary power to transfer AEs refugee status to the United Kingdom and confirmed the decision to remove her to Italy.
+In response to a Rule 39 indication issued by the European Court of Human Rights (ECtHR), removal of AE has been stayed.
+On 10 November 2011 her renewed application for permission to apply for judicial review was refused by the Administrative Court.
+Her challenge to the refusal to transfer her refugee status to this country was not pursued but the challenge to the certification of her claim remains.
+MA is an Eritrean woman who reached Italy in 2005 and in April 2006 was accorded refugee status there on the ground of fear of persecution as a Pentecostal Christian.
+In January 2008 an agent brought her three children to Italy to join her: M, D and Y.
+MA's evidence is that the family, despite being recognised as refugees, had to live on the streets, sleeping under bridges, lighting fires for warmth when rain permitted and relying on charitable hand outs for food.
+After three months MA brought her children covertly to the United Kingdom.
+In the course of embarking in a lorry at Calais in the dark, she lost Y, whose whereabouts are still not known.
+The other two are now settled in secondary and tertiary education here and are both doing well.
+Because of their failure to respond to the UK's request, the Italian authorities in July 2008 were deemed under Dublin II to have accepted responsibility for MA and her children.
+Removal directions were set but were cancelled because the Italian police considered that they had been given inconsistent details about the children and would not accept them.
+MA would not cooperate with attempts to interview her about this.
+Instead she sought to oppose removal by reliance on medical evidence that she was HIV positive.
+By July 2009 Italy had accepted responsibility and fresh removal directions were set.
+They were cancelled because of a new application for judicial review, which was later withdrawn.
+They were re set for July 2010, but the family failed to check in for their departure to Italy.
+MA then made further allegations about her treatment both in Eritrea and in Italy.
+In August 2010 the Home Secretary certified MAs claim as clearly unfounded.
+She refused to transfer MA's refugee status to the United Kingdom and re set removal directions.
+These were cancelled when the present proceedings were brought.
+The Court of Appeal found that MA had displayed considerable deviousness.
+She had lacerated her fingertips to prevent identification on arrival here and had used a different name from that which she used in Italy.
+It was only after a third set of removal directions was given that, for the first time, she gave an account of being serially raped in both Italy and Eritrea.
+As the court found, however, her late accounts of rape do not necessarily make them incredible.
+Moreover, MA's account of the effects of her experiences is now supported by what appears to be cogent medical evidence.
+As to MA's two children, M, although now legally an adult, continues to form part of the mother's human rights claim.
+She is taking a course at an educational establishment, and staff there speak highly of her.
+D is at a school which has reported favourably on both his behaviour and his academic progress.
+Neither child has any desire to be returned to Italy, with its associations of misery and hardship.
+MA is reportedly suicidal at the prospect of enforced return.
+The Court of Appeals decision
+The Court of Appeal sat as a first instance court in two of the cases (AE and EH) and in its appellate jurisdiction in the cases of EM and MA [2013] 1 WLR 576.
+This came about because permission to allow AE and EH to apply for judicial review was refused at first instance and granted on application to the Court of Appeal which then conducted the substantive hearing in those cases.
+In the cases of EM and MA, appeals against substantive decisions by, respectively, Kenneth Parker J and Langstaff J were heard by the Court of Appeal in a conjoined hearing with EM and MA.
+that had been proffered by the Secretary of State: In para 30 of its judgment the Court of Appeal summarised the evidence Asylum seekers are accommodated in a reception centre for long enough for the Territorial Commission to evaluate their claims.
+If accepted as refugees, or while awaiting a decision, they are given an international protection order and assigned to a "territorial project" which forms part of SPRAR, the national system for the protection of asylum seekers and refugees.
+SPRAR will either provide accommodation or transfer the claimant to a public or private local provider.
+Access to SPRAR is by referral only.
+It provides food and lodging and courses designed to assist integration, but (with few exceptions) the limit of stay there is six months.
+On leaving, claimants can apply to charitable or voluntary providers but there is no guarantee of success.
+However, the international protection order affords access to free healthcare and social assistance (which does not extend to social security) equivalent to that enjoyed by nationals.
+This requires a fiscal code number, which in turn depends on having an address which can be verified by the police.
+An international protection order also allows the holder to take employment or undertake self employment, to marry, to apply for family reunification, to obtain education, to seek recognition of foreign qualifications, to apply for public housing and, after five years, for naturalisation.
+For those denied these rights, there is access to the Italian courts.
+The challenge which the appellants presented to the claims contained in this passage was set out in para 31 of the courts judgment: The claimants' case is that this may be the system in theory, but their own experience and that of many others, to which independent reports attest, is that it is not what happens in reality to a very considerable number both of asylum seekers and of recognised refugees.
+In short, they say, Italy's system for the reception and settlement of asylum seekers and refugees is in large part dysfunctional, with the result that anyone arriving or returned there, even if they have children with them, faces a very real risk of destitution.
+The Court of Appeal held that if the matter stopped [t]here they would be bound to conclude that there was a triable issue in all four cases as to whether return to Italy entailed a real risk to exposing the appellants to inhuman or degrading treatment contrary to article 3 of ECHR.
+This is clearly in keeping with well established jurisprudence in the area.
+For instance, in ZT (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348, para 23 Lord Phillips said, If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded.
+Plainly, therefore, the Court of Appeal considered that if it could have regard to the evidence presented on behalf of the appellants, their claims could not be characterised as clearly unfounded.
+The Home Secretarys certificates would therefore have been of no effect and the appellants would have to be afforded an in country appeal against removal.
+But the court found itself deflected from giving effect to this preliminary view because of what it understood to be the Home Secretarys argument that access to article 3 and the assertion of a right of appeal could only be countenanced if it was shown that Italy was in systemic rather than sporadic breach of its international obligations and the case made on behalf of the appellants fell well short of establishing that.
+The Court of Appeal felt driven to this conclusion by its analysis of recent jurisprudence from ECtHR and the Court of Justice of the European Union (CJEU), particularly the trilogy of cases, KRS v United Kingdom (2008) 48 EHRR SE 129, MSS v Belgium and Greece (2011) 53 EHRR 28, and NS (Afghanistan) v Secretary of State for the Home Department Cases C 411/10 and C 493/10, [2013] QB 102.
+In the first of these cases, KRS, the Fourth Section of ECtHR found the applicants case to be inadmissible.
+He was an Iranian asylum seeker who had entered Greece before seeking asylum in the UK.
+Adverse reports on Greeces treatment of asylum seekers were noted by the Fourth Section but it concluded that Greeces international commitment to the European asylum system and (it was to be presumed) her compliance with that system provided a comprehensive answer to the applicants claim.
+Although UNHCR had advised member states to suspend returns to Greece under Dublin II, this had not displaced the presumption that Greece would abide by her obligations.
+In the second case, MSS, a Grand Chamber decision, ECtHR noted UNHCRs claim (in a letter to the Belgian government in April 2009) that the Fourth Section in KRS had apparently overlooked some of the criticisms that it had made of Greece.
+No reference had been made to whether conditions of reception conformed to regional and international standards of human rights protection or whether asylum seekers had access to fair consideration of their asylum applications or if they were able to exercise their rights under the Geneva Convention.
+The Grand Chamber reviewed the numerous reports and materials that had been generated about the situation in Greece since the KRS decision.
+It observed that these all agreed about the deficiencies of the asylum procedure in Greece.
+The court therefore concluded that the situation in Greece was known to the Belgian authorities; that seeking assurances from the Greek government that the applicant faced no risk of treatment contrary to ECHR was not sufficient to ensure adequate protection against the risk where reliable sources had reported practices that were tolerated by the authorities and which were manifestly contrary to the principles of the Convention; and that the Aliens Office of the Belgian government systematically applied the Dublin Regulation without so much as considering the possibility of making an exception (para 352).
+The Grand Chamber therefore held that there had been a violation by Belgium of article 3 of EHCR because by sending the applicant back to Greece, the Belgian authorities exposed him to detention and living conditions there which were in breach of that article.
+The Court of Appeal said of this decision that the assessment of risk on return is seen by the Strasbourg court as depending on a combination of personal experience and systemic shortcomings which in total may suffice to rebut the presumption of compliance (para 39).
+It is clear that the court felt that the personal experience of the appellants in these cases, taken in combination with documented shortcomings in the manner in which asylum seekers are dealt with in Italy, would have at least raised a case to be tried as to whether their enforced return to that country would have violated their article 3 rights (see, in particular, paras 32 and 61 of the courts judgment).
+But the court decided that raising an arguable case was not enough.
+It reached that conclusion principally because of its view as to the effect of the CJEU decision in NS.
+Notably, in introducing his discussion of that case, Sir Stephen Sedley said (at para 43) that, but for the fact that the decision of CJEU was binding on courts of this country, the Court of Appeal might have had to confront the problem of conflicting decisions of ECtHR and CJEU.
+This observation seems clearly to signify that, but for the effect of the NS case, the Court of Appeal would have come to a different conclusion from that which it felt compelled to reach.
+Resonances of this conflict appear later in the judgment of the Court of Appeal and will be touched on in my consideration of the NS decision.
+The NS case was concerned with the question whether, in deciding if it should exercise the power under article 3(2) of the Dublin II Regulation (that is the power to examine a claim which is the responsibility of another state), a member state is required to presume conclusively that the other states arrangements are compliant with its international obligations.
+Alternatively, is the member state which is contemplating recourse to the article 3(2) power obliged to examine whether transfer would bring a risk of violation of Charter rights or of the EU's minimum standards?
+CJEU decided that there was a presumption that member states would comply with their international obligations but that this was rebuttable.
+At para 86 of its judgment the court said: if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in the member state responsible, resulting in inhuman or degrading treatment, within the meaning of article 4 of the Charter, of asylum seekers transferred to the territory of that member state, the transfer would be incompatible with that provision.
+Building on that finding CJEU said this at para 94 of its judgment: to ensure compliance by the European Union and its member states with their obligations concerning the protection of the fundamental rights of asylum seekers, the member states, including the national courts, may not transfer an asylum seeker to the member state responsible within the meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that member state amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of article 4 of the Charter.
+The Court of Appeal considered that CJEU had addressed in its judgment the question of what amounted to systemic deficiencies in paras 81 and 82 for, at para 46 of the Court of Appeals judgment, Sir Stephen said that CJEU had taken care in those paragraphs to draw a distinction between a true systemic deficiency and operational problems even if such problems created a substantial risk that asylum seekers would be treated in a manner incompatible with their fundamental rights.
+It will be necessary in due course to look at the relevant paragraphs of CJEUs judgment in order to examine whether that conclusion can be upheld.
+For the present, it is, perhaps, sufficient to consider its implications.
+A person applying for asylum in a member state might be able to establish conclusively that he would be at substantial risk of being treated in a manner incompatible with his fundamental rights if returned to a listed country but because that risk did not arise from so called systemic deficiencies it could not operate to prevent his enforced return to that country.
+That would be, to say the least, a remarkable conclusion.
+In any event, the Court of Appeal decided that proof of a systemic deficiency in the system of refugee protection had been elevated by NS into a sine qua non of intervention para 47.
+The court said: What in the MSS case was held to be a sufficient condition of intervention has been made by the NS case into a necessary one.
+Without it, proof of individual risk, however grave, and whether or not arising from operational problems in the state's system, cannot prevent return under Dublin II.
+It is clear that the Court of Appeal considered that NS had changed the landscape in relation to the requirements of proof of possible violation of fundamental rights from that which had hitherto obtained.
+At para 61 the Court of Appeal, having reviewed the evidence that had been presented on behalf of the appellants about conditions in Italy, said this: This material gives a great deal of support to the accounts given by three of the claimants of their own experiences of seeking asylum in Italy.
+If the question were, as Ms Carss Frisk submits it is, whether each of the four claimants faces a real risk of inhuman or degrading treatment if returned to Italy, their claims would plainly be arguable and unable to be certified.
+But we are unable to accept that this is now the law.
+The decision of the CJEU in the NS case [2013] QB 102 has set a threshold in Dublin II and cognate return cases which exists nowhere else in refugee law.
+It requires the claimant to establish that there are in the country of first arrival systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers . [which] amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment.
+A presumption of compliance
+The need for a workable system to implement Dublin II is obvious.
+To allow asylum seekers the opportunity to move about various member states, applying successively in each of them for refugee status, in the hope of finding a more benevolent approach to their claims, could not be countenanced.
+This is the essential underpinning of Dublin II.
+Therefore, that the first state in which asylum is claimed should normally be required to deal with the application and, where the application is successful, to cater for the refugees needs is not only obvious, it is fundamental to an effective and comprehensive system of refugee protection.
+Asylum seeking is now a world wide phenomenon.
+It must be tackled on a co operative, international basis.
+The recognition of a presumption that members of an alliance of states such as those which comprise the European Union will comply with their international obligations reflects not only principle but pragmatic considerations.
+A system whereby a state which is asked to confer refugee status on someone who has already applied for that elsewhere should be obliged, in every instance, to conduct an intense examination of avowed failings of the first state would lead to disarray.
+It is entirely right, however, that a presumption that the first state will comply with its obligations should not extinguish the need to examine whether in fact those obligations will be fulfilled when evidence is presented that it is unlikely that they will be.
+There can be little doubt that the existence of a presumption is necessary to produce a workable system but it is the nature of a presumption that it can, in appropriate circumstances, be displaced.
+The debate must centre, therefore, on how the presumption should operate.
+Its essential purpose must be kept clearly in mind.
+It is to set the context for consideration of whether an individual applicant will be subject to violation of his fundamental rights if he is returned to the listed country.
+The presumption should not operate to stifle the presentation and consideration of evidence that this will be the consequence of enforced return.
+Nor should it be required that, in order to rebut it, it must be shown, as a first and indispensable requirement, that there is a systemic deficiency in the procedure and reception conditions provided for the asylum seeker.
+Violation of article 3 does not require (or, at least, does not necessarily require) that the complained of conditions said to constitute inhuman or degrading conditions are the product of systemic shortcomings.
+It is self evident that a violation of article 3 rights is not intrinsically dependent on the failure of a system.
+If this requirement is grafted on to the presumption it will unquestionably make its rebuttal more difficult.
+And it means that those who would suffer breach of their article 3 rights other than as a result of a systemic deficiency in the procedure and reception conditions provided for the asylum seeker will be unable to avail of those rights in order to prevent their enforced return to a listed country where such violation would occur.
+That this should be the result of the decision of CJEU in NS would be, as I have said, remarkable.
+More significantly, if the Court of Appeals interpretation of NS was correct, it would give rise to an inevitable tension between the Home Secretarys obligation to abide by EU law, as pronounced by CJEU, and her duty as a public authority under section 6 of the Human Rights Act 1998.
+On the Court of Appeals analysis, the Secretary of State would be bound under Dublin II to return an asylum seeker or refugee to the first country in which that person had claimed or been granted asylum unless he or she could show that the anticipated breach of their article 3 rights had as its source a systemic deficiency in the asylum procedure and reception conditions.
+Thus, even if it could be proved conclusively that an article 3 violation was likely to occur, the return of the individual would have to take place.
+Such an enforced return would involve the Secretary of State in a failure to comply with the duty under section 6 of the 1998 Act not to act in a way that is incompatible with a Convention right.
+It may well be that, confronted by such a dilemma, the Secretary of State would have to resort to her powers under article 3(2) of the Dublin Regulation which permits each member state to examine an application for asylum lodged with it by a third country national, even if such examination is not its responsibility under the criteria laid down in the Regulation.
+In the event, I do not believe that it is necessary to reach a view on this because I do not consider that NS has the effect which the Court of Appeal considered it to have.
+NS was an Afghan national who challenged his removal under the Dublin II Regulation to Greece by the Secretary of State.
+He relied on material concerning the general situation in Greece for asylum seekers.
+A series of questions were referred to the CJEU.
+These raised queries about the Charter of Fundamental Rights of the European Union (the Charter) and the relationship between fundamental rights and returns under the Dublin II Regulation.
+In the present appeals, of course, the issue of importance from NS is the courts decision about the circumstances in which a member state must desist from transferring an asylum applicant to the state with responsibility under the Regulation.
+In paras 76 80 of its judgment, CJEU sets out the background to the need for mutual confidence among member states about the obligation of those states that participate in the Common European Asylum System to comply with fundamental rights including those based on the Convention relating to the Status of Refugees (the 1951 Convention) ((1951) Cmd 9171) and its 1967 Protocol ((1967) Cmnd 3906).
+In these paras the court also dealt with the assumption that needed to be made that the states will be prepared to fully comply.
+These twin considerations (the importance of the obligations and the assumption that they will be fulfilled) underpin the system a system designed to avoid blockages as a result of the obligation on state authorities to examine multiple claims by the same applicant, and to increase legal certainty with regard to the determination of the state responsible for examining the asylum claim and thus to avoid forum shopping, it being the principal objective to speed up the handling of claims in the interests both of asylum seekers and the participating member states. para 79.
+The aspirational aspect of this approach is readily understandable.
+If the system is going to work properly, if administrative delays and forum shopping are to be eliminated and if bureaucratic quagmires are to be avoided, participating states must live up to their commitments and they must inspire trust in the other participants and, in turn, repose trust in the willingness and capacity of the other participants to likewise fulfil their obligations.
+CJEU was therefore anxious to ensure that there was no significant compromise on the smooth operation of the inter state return of asylum seekers to the country where they first claimed asylum.
+The critical question is whether it sought to achieve that effective process by permitting challenges to a decision to return under Dublin II only in those cases where there is a systemic failure in the asylum procedure and reception conditions in the state to which the transfer is to take place.
+Before examining what CJEU said on this issue, it can be observed that an exclusionary rule based only on systemic failures would be arbitrary both in conception and in practice.
+There is nothing intrinsically significant about a systemic failure which marks it out as one where the violation of fundamental rights is more grievous or more deserving of protection.
+And, as a matter of practical experience, gross violations of article 3 rights can occur without there being any systemic failure whatsoever.
+One must be careful, therefore, to determine whether CJEU referred to systemic failures in order merely to distinguish these from trivial infringements of the various European asylum directives or whether it consciously decided to create a new and difficult to fulfil pre condition for asylum seekers who seek to have recourse to their article 3 rights to prevent their return to a country where it can be shown that those rights will be violated.
+For there can be little doubt that such a condition would indeed be difficult to fulfil.
+Some of the facts in the present cases exemplify the truth of that proposition.
+For instance, the Court of Appeal held that there was a real risk that EH, now severely disturbed and suffering from PTSD and depression, both of which require treatment, will be homeless if returned to Italy.
+But that is not enough to prevent his enforced return.
+The appalling degradation suffered by AE and the awful but distinct possibility that something of the same will happen again if she is returned to that country are not sufficient to satisfy the stringent standard which the Court of Appeal has decided must now be met.
+Because of the narrowly defined (by the Court of Appeal) category of systemic failures in asylum procedures and reception conditions, which these appellants have been deemed not to inhabit, they are prohibited from challenging the validity of their enforced return to a country where, if their claims are right, they will suffer breach of their article 3 rights.
+The unacceptable artificiality of that situation is that if a systemic failure could be demonstrated, even though the consequences were far less terrible than those which, it is anticipated, will befall these appellants, the enforced return could be resisted.
+With these concerns in mind, I turn to consider the critical paragraphs in the judgment of CJEU in NS.
+At para 80, the court said that it must be assumed that the treatment of asylum seekers in all member states complies with the requirements of the Charter, the Geneva Convention and the ECHR.
+Para 81 is pivotal to the courts reasoning: It is not however inconceivable that that system may, in practice, experience major operational problems in a given member state, meaning that there is a substantial risk that asylum seekers may, when transferred to that member state, be treated in a manner incompatible with their fundamental rights.
+The system referred to in this para is the system of the treatment of asylum seekers in all member states (see para 80).
+What is contemplated in para 81 is that this system may experience major operational problems in a particular member state.
+The circumstance that the general system may experience major operational problems in specific settings is not the same as the system having intrinsic deficiencies.
+The Court of Appeal in para 46 of its judgment suggested that CJEU had taken care to distinguish a true systemic deficiency from operational problems.
+With respect, I do not agree.
+What the CJEU recognised was that any system, however free from inherent deficiency, might experience operational difficulties which would cause a substantial risk that asylum seekers would be treated in a manner incompatible with their fundamental rights.
+The source of the risk was not systemic deficiencies (in the sense of the deficiencies deriving from intrinsic weaknesses in the system) but rather, major operational problems in a given member state.
+I therefore take a different view from that of the Court of Appeal in its analysis of paras 80 and 81 of the CJEU judgment.
+I do so on two grounds.
+First, I do not believe that the system (as that expression was used by CJEU in these paras) was the system in a particular member state.
+I consider that the words that system in para 81 are a reference back to the system of treatment of asylum seekers in all member states in para 80.
+Secondly, I am of the view that the source of the risk of asylum seekers being treated in a manner incompatible with their fundamental rights, which CJEU identified in these paras, is not a deficiency in the overall system but operational problems experienced in a given member state.
+See also in this context paras 75 and 78 of NS.
+Now, it is true that at a later point in the judgment, CJEU turns to refer to systemic flaws in the asylum procedure and reception conditions in Greece.
+At para 86 the court said: if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in the member state responsible, resulting in inhuman or degrading treatment, within the meaning of article 4 of the Charter, of asylum seekers transferred to the territory of that member state, the transfer would be incompatible with that provision.
+It is perhaps unfortunate that the expression systemic deficiency was employed in two different contexts to describe what are clearly distinctly different phenomena because this creates the potential for confusion.
+But I believe that, even in the later context, CJEU did not intend to stipulate that an anticipated violation of article 3 could only be a basis for resisting a transfer to a listed state if it could be shown that this was the result of a systemic deficiency in that countrys asylum procedures and reception conditions.
+Indeed, it is clear from para 89 of the courts judgment that it considered that the infringement of fundamental rights provided evidence of the systemic deficiency rather than that a systemic deficiency had to be demonstrated before violation of a fundamental right could operate to prevent the transfer.
+In that para the court said: The extent of the infringement of fundamental rights described in [MSS v Belgium and Greece] shows that there existed in Greece, at the time of the transfer of the applicant MSS, a systemic deficiency in the asylum procedure and in the reception conditions of asylum seekers.
+The important central feature of MSS and NS is that systemic deficiencies were found to be present in the asylum procedures and reception conditions in Greece.
+The debate in those cases therefore focused on the question of what, given that systemic deficiencies were present, the effect of those deficiencies was on the application of the presumption of compliance.
+There was no occasion to address the question whether systemic deficiencies had to be present before the interdict on transferring asylum seekers to the member state responsible.
+This is how, in my opinion, para 94 of the courts judgment in NS should be read.
+In that para the court said: to ensure compliance by the European Union and its member states with their obligations concerning the protection of the fundamental rights of asylum seekers, the member states, including the national courts, may not transfer an asylum seeker to the member state responsible within the meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that member state amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of article 4 of the Charter.
+The focus here is on the member states awareness of systemic deficiencies which provide substantial grounds for believing that there is a real risk of inhuman or degrading treatment.
+In other words, does the member state proposing to transfer an asylum seeker have grounds for believing that the consequence for the person transferred will be inhuman or degrading treatment? As it happened, in both those cases the existence of systemic deficiencies which had been extensively reported on by, among others, UNHCR was the means by which the transferring states were deemed to have that knowledge but there is nothing in the reasoning of CJEU nor is there, I believe, any reason in logic to suggest that, if the transferring state acquires the same knowledge through a different medium, that it should not have the same effect.
+The correct approach
+I consider that the Court of Appeals conclusion that only systemic deficiencies in the listed countrys asylum procedures and reception conditions will constitute a basis for resisting transfer to the listed country cannot be upheld.
+The critical test remains that articulated in Soering v United Kingdom (1989) 11 EHRR 439.
+The removal of a person from a member state of the Council of Europe to another country is forbidden if it is shown that there is a real risk that the person transferred will suffer treatment contrary to article 3 of ECHR.
+Article 13(1) of Council Directive 2003/9/EC (the Reception Directive) requires that member states provide material reception conditions for applicants for asylum.
+Article 13(2) stipulates that these conditions should be such as to ensure a standard of living adequate for the health of applicants and capable of ensuring their subsistence.
+The Dublin Regulation and the Reception Directive must be interpreted and applied in conformity with fundamental rights: Case C 106/89 Marleasing SA v La Comercial Internacional de Alimentacin SA [1990] ECR I 4135; Joined Cases C 402/05P and 415/05P Kadi v Council of the European Union [2009] AC 1225.
+The preamble to Council Directive 2004/83/EC (the Qualification Directive) emphasises that, in contrast to the Reception Directive (which identifies minimum standards), the key objective is to ensure that those granted refugee status are not discriminated against in terms of access to welfare support, accommodation etc.
+Recital 33 is in these terms: Especially to avoid social hardship, it is appropriate, for beneficiaries of refugee or subsidiary protection status, to provide without discrimination in the context of social assistance the adequate social welfare and means of subsistence.
+Articles 26 29 of the Qualification Directive requires member states to provide refugees with equivalent access to that enjoyed by nationals of the member state in areas such as employment, education, social welfare and medical treatment.
+Article 31 requires that they be given equivalent rights as regards accommodation and article 33 calls for member states to provide appropriate integration programmes.
+These duties coalesce with the positive obligations on members of the Council of Europe who are also member states of the European Union.
+Under the EU Charter of Fundamental Rights, article 4 contains a human rights protection in equivalent language to article 3 of ECHR.
+The UK, as an EU member state, is obliged to observe and promote the application of the Charter whenever implementing an instrument of EU law (see article 51 of the Charter).
+It is common case that the positive obligations under article 3 of ECHR include the duty to protect asylum seekers from deliberate harm by being exposed to living conditions (for which the state bears responsibility) which cause ill treatment see MSS at [221].
+And in R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396 the House of Lords held that article 3 could be engaged where asylum seekers were by the deliberate action of the state, denied shelter, food or the most basic necessities of life per Lord Bingham at para 7.
+Where, therefore, it can be shown that the conditions in which an asylum seeker will be required to live if returned under Dublin II are such that there is a real risk that he will be subjected to inhuman or degrading treatment, his removal to that state is forbidden.
+When one is in the realm of positive obligations (which is what is involved in the claim that the state has not ensured that satisfactory living conditions are available to the asylum seeker) the evidence is more likely to partake of systemic failings but the search for such failings is by way of a route to establish that there is a real risk of article 3 breach, rather than a hurdle to be surmounted.
+There is, however, what Sales J described in R (Elayathamby) v Secretary of State for the Home Department [2011] EWHC 2182 (Admin), at para 42(i) as a significant evidential presumption that listed states will comply with their Convention obligations in relation to asylum procedures and reception conditions for asylum seekers within their territory.
+It is against the backdrop of that presumption that any claim that there is a real risk of breach of article 3 rights falls to be addressed.
+The first instance decisions
+In his first judgment in EM [2011] EWHC 3012 Admin, delivered on 18 November 2011, Kenneth Parker J referred approvingly to the statement in R v Home Secretary Ex p Adan [1999] 3 WLR 1274 to the effect that a system which will, if it operates as it usually does, provide the required standard protection for the asylum seeker will not be found to be deficient because of aberrations.
+He then said this at para 12: Following KRS, the existence of such a system is to be presumed.
+It is for the claimant to rebut that presumption, by pointing to a reliable body of evidence demonstrating that Italy systematically and on a significant scale fails to comply with its international obligations to asylum seekers on its territory. (original emphasis)
+Systematic is defined as arranged or conducted according to a system, plan, or organised method whereas the definition of the word systemic is of or pertaining to a system.
+Taken in context, I believe that Kenneth Parker Js statement that it had to be shown that there was a systematic and significant failure to comply with international obligations meant that the omissions were on a widespread and substantial scale.
+His approach is rather different from that of the Court of Appeal, therefore, in that it does not appear to suggest that it needed to be shown that there were inherent deficiencies in the system, merely that there were substantial operational problems.
+This approximates (at least) to what I consider is the true import of the decision in NS.
+On one view, therefore, Kenneth Parker Js decision is in keeping with the correct test and his decision should stand.
+For two reasons, however, I have decided that this would not be the correct disposal.
+In the first place the Court of Appeal took a different view from that of Kenneth Parker J as to the effect of the evidence.
+As I pointed out, (in paras 26 and 31 above) the court indicated that, but for the effect of NS, it would have been bound to conclude that there was a triable issue in all four cases as to whether return to Italy entailed a real risk to exposing the appellants to inhuman or degrading treatment contrary to article 3 of ECHR.
+Secondly, there is an issue as to whether Kenneth Parker Js approach accords precisely with that in Soering.
+In that case ECtHR had said that an extraditing contracting state will incur liability under the Convention if it takes action which has as a direct consequence the exposure of an individual to proscribed ill treatment.
+In order to rebut the presumption a claimant will have to produce sufficient evidence to show that it would be unsafe for the court to rely on it.
+On proper analysis, it may well be that Kenneth Parker J was not suggesting that there was a requirement that a person subject to an enforced return must show that his or her risk of suffering ill treatment contrary to article 3 of EHCR was the result of a significant and systematic omission of the receiving state to comply with its international obligations.
+It seems to me, however, that, to impose such an obligation in every instance would go beyond the Soering requirement.
+Since there was no reference to Soering in Kenneth Parker Js judgment and in light of this courts re assertion of the test articulated in that case, I consider that it would be sensible to have the matter revisited.
+In MA, Langstaff J (whose judgment is reported at [2012] EWHC 56 Admin) said (at para 62) that it could not realistically be argued that Italy systematically breaches the rights of refugees so as to involve a violation of article 3.
+At para 63 he rejected the argument that to rely on an absence of systematic breach avoided dealing with the practical realities of life in Italy.
+Langstaff J said that such realities might need to be considered if the return was to some less developed country in which the generality was for there to be such difficulties.
+By implication, this approach suggests that a breach of article 3, sufficient to prevent a return, could only arise where there had been systematic breach of the rights of refugees.
+For the reasons given earlier, I consider that a more open ended approach to the question of the risk of breach of article 3 is required.
+Although one starts with a significant evidential presumption that listed states will comply with their international obligations, a claim that such a risk is present is not to be halted in limine solely because it does not constitute a systemic or systematic breach of the rights of refugees or asylum seekers.
+Moreover, practical realities lie at the heart of the inquiry; evidence of what happens on the ground must be capable of rebutting the presumption if it shows sufficiently clearly that there is a real risk of article 3 ill treatment if there is an enforced return.
+Disposal
+I would therefore remit all four cases to the Administrative Court so that an examination of the evidence may take place to determine whether in each case it is established that there is a real possibility that, if returned to Italy, the claimant would be subject to treatment in violation of the Convention.
+That examination can only be conducted properly if there is an assessment of the situation in the receiving country.
+In appropriate circumstances, this calls for a rigorous assessment see Chahal v United Kingdom (1997) 23 EHRR 413 at para 96 and Vilvarajah v United Kingdom (1991) 14 EHRR 248 at para 108.
+The court must examine the foreseeable consequences of sending a claimant to the receiving country bearing in mind both the general situation there and the claimants personal circumstances, including his or her previous experience see Vilvarajah at para 108 and Saadi v Italy (2009) 49 EHRR 30 at para 130.
+This approach has been followed by decisions of ECtHR subsequent to MSS Hussein v Netherlands Application No 27725/10 at paras 69 and 78 and Daytbegova v Austria Application No 6198/12 at paras 61 and 67 69.
+The position of UNHCR
+The Court of Appeal recognised that particular importance should attach to the views of UNHCR and noted that ECtHR in MSS had treated UNHCRs judgment as pre eminent and possibly decisive.
+At para 41 Sir Stephen Sedley said this: It seems to us that there was a reason for according the UNHCR a special status in this context.
+The finding of facts by a court of law on the scale involved here is necessarily a problematical exercise, prone to influence by accidental factors such as the date of a report, or its sources, or the quality of its authorship, and conducted in a single intensive session.
+The High Commissioner for Refugees, by contrast, is today the holder of an internationally respected office with an expert staff (numbering 7,190 in 120 different states, according to its website), able to assemble and monitor information from year to year and to apply to it standards of knowledge and judgment which are ordinarily beyond the reach of a court.
+In doing this, and in reaching his conclusions, he has the authority of the General Assembly of the United Nations, by whom he is appointed and to whom he reports.
+It is intelligible in this situation that a supranational court should pay special regard both to the facts which the High Commissioner reports and to the value judgments he arrives at within his remit.
+I fully agree with this assessment.
+In a recent decision of this court, the unique and unrivalled expertise of UNHCR in the field of asylum and refugee law was acknowledged.
+In IA (Iran) v Secretary of State for the Home Department [2014] UKSC 6; [2014] 1 WLR 384, this court said at para 44: Although little may be known about the actual process of decision making by UNHCR in granting refugee status in an individual case, the accumulated and unrivalled expertise of this organisation, its experience in working with governments throughout the world, the development, promotion and enforcement of procedures of high standard and consistent decision making in the field of refugee status determinations must invest its decisions with considerable authority.
+It is of course the case that UNHCRs criticisms of the situation in Greece in its interventions in KRS and particularly MSS were more pointed and direct than they have been in the present appeal in relation to Italy.
+In a report of July 2012 containing recommendations in relation to Italy, UNHCR did not call for a halt to all Dublin transfers to Italy.
+But, as Mr Fordham QC, for UNHCR, submitted, this does not mean that the organisation considered that there were no legal obstacles to particular transfers taking place or that UNHCR had given Italy a clean bill of health.
+The recommendations contained in UNHCRs report of July 2012 and its more recent report of July 2013 will doubtless be examined carefully by the Administrative Court.
+While, because of their more muted contents, they do not partake of the pre eminent and possibly decisive quality of the reports on Greece, they nevertheless contain useful information which the court will wish to judiciously consider.
+Assumptions should not be made about any lack of recommendations concerning general suspension of returns under Dublin II to Italy but it is of obvious significance that UNHCR did not make any such proposal.
+The UNHCR material should form part of the overall examination of the particular circumstances of each of the appellants cases, no more and no less.
+Should refugees be treated differently from asylum seekers?
+Of the four appellants, two are asylum seekers (EH and EM), and two are refugees (AE and MA).
+AE and MA submit that their transfer to Italy is not governed by Dublin II and is not within the scope of EU law because they are refugees.
+The Treaty provision under which the Dublin Regulation was adopted, article 63(1) of the Treaty on European Union makes it clear that the Regulation is directed to determine which member state is responsible for considering an asylum application.
+Accordingly, the appellants say, the return of refugee appellants is governed exclusively by national law.
+The respondent, whilst agreeing that refugee appellants are not returned to member states under Dublin II, takes a rather different approach to the question whether asylum seekers and refugees should be treated similarly.
+It is argued that ECtHR has consistently recognised that asylum seekers are an underprivileged and vulnerable population group requiring special protection in the form of basic reception facilities whereas refugees are on a par, as regards rights and obligations with the general population see Hassan and others v Netherlands and Italy 40524/10 (27 August 2013) para 179.
+The Court of Appeal noted that questions had been raised in the course of argument as to whether the return to Italy of a claimant already granted refugee status there would fall under Dublin II but decided that the reasoning of the CJEU in NS required them to adopt a uniform approach to all of the present appeals see para 48.
+It seems to me that the relevant matter is not whether Dublin II treats refugees and asylum seekers differently or the same, but that it relates to anyone who has applied for asylum in the country from which he might be transferred, whether or not he has previously been recognised as a refugee in the country to which it is proposed he be transferred.
+This reflects the nature of Dublin II as a chiefly procedural instrument.
+Refugee is defined, but referred to only once, obliquely, in article 7: Where the asylum seeker has a family member, regardless of whether the family was previously formed in the country of origin, who has been allowed to reside as a refugee in a Member State, that Member State shall be responsible for examining the application for asylum, provided that the persons concerned so desire.
+An applicant or asylum seeker is defined in article 2(d) of Dublin II as a third country national who has made an application for asylum in respect of which a final decision has not yet been taken.
+A third country national is defined in para (a) of the same article as anyone who is not a citizen of the Union within the meaning of article 17(1) of the Treaty establishing the European Community.
+The appellants meet these criteria and all are subject, therefore, to the provisions of Dublin II.
+Whether their respective positions as asylum seekers who have previously been granted refugee status and asylum seekers who have not been granted that status will make it more or less likely that they will be at risk of violation of their article 3 rights if returned to a listed country will depend on an examination of the particular circumstances of their individual cases.
+One can anticipate an argument that those who have refugee status in Italy are less likely to suffer such a violation because they can assert their rights under the Qualification Directive but whether such an argument would prevail must depend on the evaluation of the evidence which is presented on that issue.
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+On 5 October 2010, the appellant, Stuart Whiston, was sentenced to 18 months in prison for robbery.
+He was entitled to automatic release on licence after serving half his sentence, ie on 5 July 2011.
+However, on 21 February 2011, he was released on licence under a so called home detention curfew pursuant to section 246 of the Criminal Justice Act 2003.
+On 7 April 2011, the Secretary of State decided to revoke the licence under section 255 of the 2003 Act, because the appellants whereabouts could no longer be monitored in the community, and he was recalled to prison.
+The decision of the Secretary of State was not subject to any statutory judicial control or review.
+The question raised on this appeal is whether a person released from prison on a home detention curfew, and then recalled to prison under section 255 of the 2003 Act, has rights pursuant to article 5(4) of the European Convention of Human Rights.
+More broadly, the appeal raises the issue of how far it is open to a person who is still serving a sentence imposed by a court to invoke article 5(4).
+The relevant domestic law
+All the statutory provisions relevant to this appeal are in the 2003 Act, but, as has been regrettably familiar in the field of criminal law, the provisions have been successively amended or added to by subsequent legislation.
+As these amendments and additions do not affect the analysis of the arguments or the outcome, I shall describe the provisions in their current form, namely as amended most recently by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
+Where a person has been convicted and given a determinate prison sentence of twelve months or more (a sentence period), section 244(1) provides that, subject to certain specified exceptions, once he has served half his sentence, it is the duty of the Secretary of State to release him on licence.
+Section 244(3) defines the first half of the sentence period as the requisite custodial period, at the end of which he is thus entitled to be released on licence.
+A prisoner may also be released on licence during the requisite custodial period under section 246(1), which, so far as is relevant, is in the following terms: Subject to subsections (2) to (4), the Secretary of State may release on licence under this section a fixed term prisoner at any time during the period of 135 days ending with the day on which the prisoner will have served the requisite custodial period.
+Subsection (2) limits this power in relation to short sentences, and subsection (4) excludes the operation of subsection (1) in certain other cases, including cases where (aa) the sentence is for four years or more and (g) the prisoner has been released on licence under this section at any time and has been recalled to prison under section 255(1)(a).
+Section 250(4) states that any licence (a) must include the standard conditions, which are stated to be such conditions as may be prescribed, and (b) may include (i) any condition authorised by certain other statutes, and (ii) such other conditions of a kind prescribed by the Secretary of State as [he] may for the time being specify in the licence.
+Section 250(5) provides that a licence granted under section 246 must be
+subject to a curfew condition in accordance with section 253, which is in the following terms: (1). [A] curfew condition is a condition which (a) requires the released person to remain, for periods for the time being specified in the condition, at a place for the time being so specified . and (b) includes requirements for securing the electronic monitoring of his whereabouts during the periods for the time being so specified. (2) The curfew condition may specify different places or different periods for different days, but may not specify periods which amount to less than 9 hours in any one day . (3) The curfew condition is to remain in force until the date when the released person would (but for his release) fall to be released on licence under section 244.
+Thus, a curfew condition cannot operate beyond the end of the requisite custodial period, the point at which the prisoner would in any event be entitled to be released.
+The place specified in a persons licence is normally his home, and for that reason a licence under section 246 is often known as home detention curfew.
+By virtue of section 249, a licence, whether under section 244 or 246, remains in place until the end of the sentence period, unless the licence is revoked and the person subject to the licence (the licensee) recalled.
+The Secretary of State has the power to revoke a licence and recall a licensee back to prison pursuant to two different statutory provisions.
+First, section 254(1) of the 2003 Act gives the Secretary of State a general power to revoke any licence and to recall the licensee to prison.
+Where the power of revocation is exercised under section 254(1), the licensee is entitled pursuant to section 254(2) to be told the reasons for his recall and to make representations to the Secretary of State, who can cancel the revocation of the licence under section 254(2A).
+Sections 255A 255C contain provisions which apply when a licence is revoked under section 254(1) and the revocation is not cancelled.
+In general terms, in such an event, the Secretary of State may release the former licensee, if satisfied that he will not present a risk of serious harm to the public, and, if she is not so satisfied, she must refer the case to the Parole Board for a binding ruling within that period if the prisoner makes representations.
+If there is no such release, the Secretary of State must refer the question of the former licensees release to the Parole Board within 28 days of his return to custody see sections 255B(4) and 255C(4).
+Secondly, section 255(1) confers a specific power on the Secretary of State to revoke a section 246 licence or home detention curfew, and it provides as follows: (1) If it appears to the Secretary of State, as regards a person released on licence under section 246 (a) that he has failed to comply with any condition included in his licence, or (b) that his whereabouts can no longer be electronically monitored at the place for the time being specified in the curfew condition included in his licence, the Secretary of State may, if the curfew condition is still in force, revoke the licence and recall the person to prison under this section.
+Thus, the power of recall under section 255 can only be exercised whilst the curfew condition is in force ie until the end of the requisite custodial period, when the licensee would have been entitled to be let out on licence as of right. (Thereafter, the licence can only be revoked under section 254).
+Further, section 255(2) provides for a licensee to be given the reasons for his recall and the opportunity to make representations to the Secretary of State, who can cancel the revocation pursuant to section 255(3).
+However, unlike the position in relation to the section 254 power of recall, there is no provision for review by the Parole Board of the exercise of the Secretary of States section 255 power of recall.
+Accordingly a prisoner can be recalled under section 255 even if he has fully complied with the conditions of the licence.
+The procedural safeguards are that the recalled prisoner must be given reasons for the recall and be able to make representations about them.
+So the statutory position in relation to determinate sentences is, in outline, as follows: a) All prisoners are entitled to release on licence after serving b) half their sentence; If recalled, a prisoner is either entitled to re release after 28 days or to referral to the Parole Board, whose decision on re release is binding; c) There may be discretionary release, sanctioned by the Secretary of State, for the limited period of up to 135 days before the prisoner becomes entitled to release at the half way mark in his sentence. d) This discretionary release is also on licence but the licence must additionally incorporate Home Detention Curfew terms. e) During the period of the discretionary release, the prisoner may be recalled not only for breach of licence or demonstrated risk to the public but also because the Home Detention Curfew system cannot be made to work in his case.
+He must be given the reasons and is permitted to make representations to the Secretary of State. f) Such recall within the limited period of up to 135 days is not subject to Parole Board or court review, but g) So soon as the half way stage in his sentence is reached, the automatic Home Detention Curfew terms fall away and the rules set out at (a) and (b) apply.
+There are quite separate rules for prisoners serving indeterminate terms, where the criteria for release on licence, recall or re release on licence are largely geared to current risk to the public; in such cases all decisions are referable to the Parole Board whose ruling is binding.
+Article 5(4) of the Convention
+The short point raised in this appeal is whether a recall to prison under section 255, without a right of review by the Parole Board or any other judicial body, is consistent with article 5(4) of the Convention.
+Article 5(1)(a) of the Convention provides as follows: Everyone has the right to liberty and security of person.
+No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court .
+Article 5(4) states: Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
+As Elias LJ observed below in para 12, there is a close relationship between these two provisions.
+Article 5(1)(a) recognises the right to liberty, and provides that a person should not lose his liberty save by being lawfully detained following a conviction by a tribunal which is judicial in character.
+Article 5(4) confers an associated right on a detained person to challenge the lawfulness of his detention before a tribunal which is judicial in character, and to have effect given to the decision of that tribunal.
+The parties respective cases
+The case for each party is simple.
+The appellant contends that, as a result of the licence granted on 21 February 2011, he regained his liberty, and the subsequent revocation of the licence and his consequent recall to prison on 7 April 2011 therefore constituted a deprivation of his liberty which infringed article 5(4), because, having been effected under section 255 pursuant to a decision of the Secretary of State, its lawfulness was not decided speedily, or indeed at all, by a court.
+The Secretary of State, on the other hand, argues that, at least where, as in this case, the sentence in question is determinate, in any case where a prisoner, who has been released on licence, is recalled to prison during the currency of his sentence period, or at any rate during the requisite custodial period, the requirements of article 5(4) are satisfied by the original sentence lawfully passed by the court by which he was originally imprisoned.
+Somewhat counter intuitively, the appellant relies on domestic authority, and in particular on the decision of the House of Lords in R (Smith and West) v Parole Board [2005] 1 WLR 350 (West), whereas the Secretary of State relies on the jurisprudence of the Strasbourg court.
+In my opinion, it is right to start by considering the Strasbourg case law, and then turn to the domestic decisions.
+The Strasbourg jurisprudence on article 5(4)
+para 76, the Strasbourg court said this: In De Wilde, Ooms and Versyp v Belgium (No 1) (1971) 1 EHRR 373, [T]he purpose of article 5(4) is to assure to persons who are arrested and detained the right to a judicial supervision of the lawfulness of the measure to which they are thereby subjected .
+Where the decision depriving a person of his liberty is one taken by an administrative body, there is no doubt that article 5(4) obliges the Contracting States to make available to the person detained a right of recourse to a court; but there is nothing to indicate that the same applies when the decision is made by a court at the close of judicial proceedings.
+In the latter case the supervision required by article 5(4) is incorporated in the decision; this is so, for example, where a sentence of imprisonment is pronounced after conviction by a competent court .
+It may therefore be concluded that article 5(4) is observed if the arrest or detention is ordered by a court within the meaning of [article 5(4)].
+This reasoning was distinguished by the court in X v United Kingdom (1982) 4 EHRR 188, para 51 in relation to indeterminate sentences, where the court held that, while this observation applied to an ordinary, determinate, sentence, it does not purport to deal with an ensuing period of detention in which new issues affecting the lawfulness of the detention might subsequently arise.
+In Van Droogenbroeck v Belgium (1982) 4 EHRR 443, para 47, the court pointed out that an indeterminate sentence involved placing recidivists and habitual offenders at the Governments disposal, which required the Minister of Justice to direct his mind to the need to deprive or continue to deprive the person concerned of his liberty.
+In such a case, article 5(4) was engaged, and it required judicial review, at reasonable intervals, of the justification for the
+deprivation of liberty
+The effect of the reasoning in De Wilde is demonstrated by two admissibility decisions of the Strasbourg court.
+In Ganusauskas v Lithuania (Application No 47922/99, 7 September 1999), the applicant, who had been sentenced to six years in prison for obtaining property by deception, complained about the fact that the District Court permitted the prosecutor to appeal out of time against a decision to release him conditionally after he had served half his sentence as a model prisoner (a decision which the District Court then reversed).
+The Third Section rejected as inadmissible his contention that his rights under articles 5(1), 5(4) and 6 had been infringed.
+Relying on De Wilde, the court said that article 5(4) only applies to proceedings in which the lawfulness of detention is challenged, and added that [t]he necessary supervision of the lawfulness of the detention after conviction by a competent court, as in the present case, is incorporated at the outset in the applicants original trial and the appeal procedures against the conviction and sentence.
+In Brown v United Kingdom (Application No 986/04, 26 October 2004), the applicant, who had been sentenced to eight years in prison for supplying heroin, was released on licence after serving two thirds of his sentence.
+He was then recalled on the grounds of changing his residence without approval and posing a risk to others.
+His representations to the Parole Board were rejected, as was his subsequent attempt to seek judicial review.
+His application, based on the contention that his rights under articles 5(1), 5(4), 6 and 8 had thereby been infringed, was rejected as inadmissible by the Fourth Section, which said this so far as article 5(4) is concerned: [W]here an applicant is convicted and sentenced by a competent court to a determinate term of imprisonment for the purposes of punishment, the review of the lawfulness of detention is incorporated in the trial and appeal procedures.
+No new issues of lawfulness concerning the basis of the present applicants detention arose on recall and no right to a fresh review of the lawfulness of his detention arose for the purposes of article 5(4) of the Convention.
+Mr Southey QC, for the appellant, argued that, in each of these two cases, the applicants reliance on article 5(4) could have been rejected on the ground that he had had the opportunity to challenge his recall to prison (in opposition to the prosecutors appeal to the District Court in Ganusauskas, and to the Parole Board and, arguably, through his application for judicial review, in Brown).
+That may well be right, but it does not in any way undermine the fact that, in each case, the court rejected the article 5(4) complaint on the ground that the article did not apply at all in circumstances where the recall to prison occurred during the period of a determinate sentence imposed for the purposes of punishment.
+I would add that the reference to punishment cannot have been intended to mean solely for punishment: determinate prison sentences are imposed for a mixture of reasons, each of which should, at least normally, be treated as applicable to the whole of the sentence period.
+Domestic jurisprudence on article 5(4)
+In R (Giles) v Parole Board [2004] 1 AC 1, the House of Lords held that article 5(4) was not infringed in a case where the appellant had been sentenced (under statutory provisions which have now been superseded) to a determinate but increased term to recognise the risk to the public which he represented.
+He had served what would have been the unincreased period but remained in prison.
+Relying on the reasoning in De Wilde and Van Droogenbroeck, it was held that, because the protective period had been imposed as part of the original sentence and was not subject to any control by the executive, but could be reviewed by the parole board, a judicial body, it did not infringe article 5(4).
+In his opinion (with which the other members of the committee agreed),
+at para 40, Lord Hope described the effect of the Strasbourg jurisprudence (which he analysed in the thirteen preceding paragraphs) as being that: [A] distinction is drawn between detention for a period whose length is embodied in the sentence of the court on the one hand and the transfer of decisions about the prisoner's release or re detention to the executive.
+The first requirement that must be satisfied is that
+according to article 5(1) the detention must be lawful.
+That is to
+Lord Hope expanded on the effect of this distinction at para 51, in these say, it must be in accordance with domestic law and not arbitrary.
+The review under article 5(4) must then be wide enough to bear on the conditions which are essential for a determination of this issue.
+Where the decision about the length of the period of detention is made by a court at the close of judicial proceedings, the requirements of article 5(1) are satisfied and the supervision required by article 5(4) is incorporated in the decision itself.
+That is the principle which was established in De Wilde, Ooms and Versyp.
+But where the responsibility for decisions about the length of the period of detention is passed by the court to the executive, the lawfulness of the detention requires a process which enables the basis for it to be reviewed judicially at reasonable intervals. terms: Where the prisoner has been lawfully detained within the meaning of article 5(1)(a) following the imposition of a determinate sentence after his conviction by a competent court, the review which article 5(4) requires is incorporated in the original sentence passed by the sentencing court.
+Once the appeal process has been exhausted there is no right to have the lawfulness of the detention under that sentence reviewed by another court.
+The principle which underlies these propositions is that detention in accordance with a lawful sentence passed after conviction by a competent court cannot be described as arbitrary.
+The cases where the basic rule has been departed from are cases where decisions as to the length of the detention have passed from the court to the executive and there is a risk that the factors which informed the original decision will change with the passage of time.
+In those cases the review which article 5(4) requires cannot be said to be incorporated in the original decision by the court.
+A further review in judicial proceedings is needed at reasonable intervals if the detention is not to be at risk of becoming arbitrary.
+Lord Hutton (with whom the other members of the committee also agreed) expressed the same view after analysing the Strasbourg jurisprudence in paras 65 79.
+In West [2005] 1 WLR 350, the two appellants were licensees who had been recalled to prison for alleged breaches of their respective licences, which had been granted under what was effectively the statutory predecessor of section 244(1).
+Thus, they had each served a sufficient proportion of their respective sentences to be entitled to be released on licence.
+In each case, the Parole Board had decided not to recommend re release, having refused to grant an oral hearing to consider the contention that the revocation of the licence was unjustified and that the licensee should be re released.
+The primary decision of the House of Lords was that the Parole Board had a common law duty to act fairly, both substantively and procedurally, when considering whether the revocation of a licence was justified, and that this would normally require an oral hearing where questions of fact were in issue see per Lord Bingham at paras 28 35.
+However, as Mr Southey rightly says, the House of Lords did consider the applicability of article 5.
+In para 36, Lord Bingham held that article 5(1) did not apply as the sentence of the trial court satisfies article 5(1) not only in relation to the initial term served by the prisoner but also in relation to revocation and recall.
+In para 37, he turned to article 5(4), and appears simply to have assumed that it applied to the proceedings before the Parole Board, and went on to hold that the requirements of the article were satisfied by its statutory power, provided it is conducted in a manner that meets the requirement of procedural fairness already discussed.
+In para 37, Lord Bingham does not appear to have considered the effect of Ganusauskas or Brown, although he specifically cited and relied on them in para 36 in relation to article 5(1) and indeed in relation to article 6 in paras 40 and 42.
+Lord Hope agreed with Lord Bingham and while he also referred in para 81 to Ganusauskas and Brown in connection with article 6, he similarly appears to have assumed, at paras 72 75, that article 5(4) applied without considering whether that was consistent with those admissibility decisions or indeed with what he had said in Giles (which was cited in argument but not relied on in the judgments see [2005] 1 WLR 350, 351 352).
+Lord Walker and Lord Carswell simply agreed with Lord Bingham.
+Lord Slynn, who dissented in part, described his initial view as being that there are not two formal orders for detention as that recall from conditional release was itself empowered by the initial sentence of the court, but said that he had been persuaded by Mr Fitzgerald that this is too restrictive an approach paras 54 55.
+He justified this conclusion by reference to the decision of the Strasbourg court in Weeks v United Kingdom (1987) 10 EHRR 293, para 40.
+In R (Black) v Secretary of State for Justice [2009] 1 AC 949, the House
+of Lords considered a case where the respondent, who, after having been sentenced to 24 years in prison, had become eligible to be considered for discretionary release on licence.
+Under the statutory scheme then in force, he was eligible for discretionary release on licence after serving half his determinate sentence, but became entitled to it only after serving two thirds.
+Although the Parole Board recommended that he be released, the Secretary of State decided that the risk of re offending was too great.
+By a majority of four to one, the House rejected the respondents contention that his rights under article 5(4) were infringed.
+In the course of their reasoning, the Law Lords had to grapple with the argument that the decision in West in relation to article 5(4) was inconsistent with the reasoning of the Strasbourg court in Ganusauskas and Brown, as explained by Lord Hope in Giles.
+Lord Rodger, with whom Baroness Hale agreed, said that he agreed with Lord Brown, but explain[ed] shortly how [he saw] the position in the light of t[the English and Strasbourg] cases para 37.
+Relying on the constant jurisprudence of the European Court of Human Rights conveniently summarised by Lord Hope in Giles at para 40, he held that the answer to the question whether article 5(4) gives a long term prisoner, with a determinate sentence , the right to take legal proceedings at the halfway stage of his sentence, to determine the lawfulness of his continued detention was No paras 45 46.
+Lord Carswell referred to Lord Hopes observations in Giles, and then contrasted cases such as Van Droogenbroeck, where the executive authority possessed a discretion over the time when the prisoner would be released, which was not fixed at the outset by any judicial decision, with cases such as Ganusauskas and Brown, where the lawfulness of the detention was incorporated at the outset in the applicants original trial and the appeal procedures against conviction and sentence para 57.
+Lord Brown, with whom Baroness Hale agreed, considered the Strasbourg jurisprudence at paras 66 71, explaining at paras 66 67 that, so far as article 5 was concerned, the Strasbourg court has consistently appeared to treat determinate sentences quite differently from indeterminate sentences.
+He then considered the domestic decisions, including Giles and West, at paras 71 77.
+He next turned to his [c]onsiderations and conclusions, which he set out in paras 78 84.
+He stated at para 81 that [t]here is nothing intrinsically objectionable (certainly in Convention terms) in allowing the executive, subject to judicial review, to take the parole decision.
+He then said that the fact that, by statute, the UK had chosen to give the Parole Board a role in the process, and statutory directions as to how to approach that role, and has chosen to fix precisely the period within a determinate sentence during which the prisoner is to be considered for parole [did not] mean that article 5(4) is necessarily thereby engaged so that the boards decision must be final paras 82 83.
+He explained this in para 83, where he said that [t]he administrative implementation of determinate sentences does not engage article 5(4); the decision when to release a prisoner subject to an indeterminate sentence does.
+However, in the course of his discussion of the domestic cases, Lord Brown did refer to the apparent conflict between Ganusauskas and Brown on the one hand and West on the other, in para 74, where he said this: Inescapably it follows from West that contrary to the view expressed in the Strasbourg courts admissibility decision in Brown, a prisoners recall for breach of his licence conditions does raise, new issues affecting the lawfulness of the detention such as to engage article 5(4).
+And that seems to me clearly correct: it would not be lawful to recall a prisoner unless he had breached his licence conditions and there could well be an issue as to this.
+I wonder, indeed, if the European Court would have decided Brown as they did had it followed, rather than preceded, the House's decision in West.
+Be that as it may, recall cases certainly so far as domestic law goes, are to be treated as akin both to lifer cases in the post tariff period and to the Van Droogenbroeck type of case where, upon the expiry of the sentence, a prisoner is subjected to an executive power of preventive detention.
+Lord Phillips, who dissented, effectively relied on the reasoning in West, on the basis that: This decision is in direct conflict with the reasoning of the Strasbourg court in Brown v United Kingdom.
+Lord Brown considers that its effect should be confined to the decision whether to release a prisoner after recall.
+I can see no reason for so confining it; the reasoning is applicable to any decision whether to release a prisoner on licence. (para 28)
+Discussion
+If one limits oneself to the decisions of the Strasbourg court to which I have referred, and the reasoning in Giles quoted above, the law appears to me to be clear.
+Where a person is lawfully sentenced to a determinate term of imprisonment by a competent court, there is (at least in the absence of unusual circumstances) no question of his being able to challenge his loss of liberty during that term on the ground that it infringes article 5(4).
+This is because, for the duration of the sentence period, the lawfulness of his detention has been decided by a court, namely the court which sentenced him to the term of imprisonment.
+That does not appear to me to be a surprising result.
+Once a person has been lawfully sentenced by a competent court for a determinate term, he has been deprived of his liberty in a way permitted by article 5(1)(a) for the sentence term, and one can see how it follows that there can be no need for the lawfulness of his detention during the sentence period to be decided speedily by a court, as it has already been decided by the sentencing court.
+If that is the law, it would follow that Mr Whistons appeal in this case must fail.
+On this approach, article 5(4) could not normally be invoked in a case where domestic discretionary early release provisions are operated by the executive in relation to those serving determinative terms.
+I accept that, in the absence of the clear Strasbourg jurisprudence, there would be an argument for saying that article 5(4) should apply in such cases.
+However, as already observed, the notion that the article is not engaged because of the original sentence appears entirely principled, and the consequence that a person under such a regime has to rely on his domestic remedies, at least unless other Convention rights are engaged, seems to me to be not unreasonable in practice.
+However, the issue is complicated by the decision of the House of Lords that article 5(4) was engaged in West, because, if the legal analysis just summarised were correct, article 5(4) would not have been engaged in West.
+I am bound to say that the decision in West appears to me to be unsatisfactory in relation to article 5(4) and, it should be emphasised, only in relation to article 5(4).
+First, although the relevant Strasbourg cases were cited in the judgments they were not followed on this point, and, save in the opinion of Lord Slynn, there was no explanation why not.
+Secondly, although Giles was referred to in argument, it was not cited in any opinion, and therefore no consideration appears to have been given to the observations of Lord Hope quoted above.
+Thirdly, at least in the four majority judgments it was not so much decided that article 5(4) was engaged; rather, it seems to have been simply assumed.
+Fourthly, in the fifth judgment, Lord Slynns explanation as to why he departed from his initial view that article 5(4) was not engaged was, with respect, plainly unsatisfactory, as the Strasbourg decision he relied on, Weeks, was a case involving an indeterminate sentence.
+When one turns to Black, the position can be said to be yet murkier.
+In their opinions, Lord Rodger (although he agreed with Lord Brown) and Lord Carswell steered clear of West, and simply treated the law on article 5(4) to be as stated by Lord Hope in Giles, para 40 (and, in the case of Lord Carswell, by the Strasbourg court in Van Droogenbroeck, Ganusauskas, and Brown).
+Lord Brown and Lord Phillips both considered that, so far as article 5(4) was concerned, West was inconsistent the Strasbourg jurisprudence.
+Lord Phillips (dissenting in the result) preferred to follow West, whereas Lord Brown in an obiter observation, preferred to limit the scope of West.
+The question, then, is what we should do about this unsatisfactory state of affairs.
+Mr Southey argues that we should follow Lord Browns approach in his obiter dictum in Black at para 73, and to conclude that article 5(4) applies in this case because Mr Whiston is seeking to be released after recall.
+Ms Lieven QC, for the Secretary of State, argues that we should follow the Strasbourg jurisprudence, as explained and applied in Giles, and hold that Mr Whiston cannot invoke article 5(4), as, so long as his sentence period was running, it had been satisfied by the sentence which was imposed at his trial.
+I have reached the clear conclusion, in agreement with the Court of Appeal, that we should reach the conclusion advocated by Ms Lieven.
+As already explained, it clearly appears to be the conclusion which the Strasbourg court would reach.
+The fact that Ganusauskas and Brown were admissibility decisions strengthens their force rather than weakens it: in each case, the court considered the applicants argument on article 5(4) to be so weak, for the reasons it gave, that it was not even worth proceeding to a decision.
+I have some difficulty with the notion, implied by Lord Brown in para 74 of Black, that a court in this country should hold that the reach of article 5(4) is, as it were, longer than the Strasbourg court has held.
+Assuming (as may well be right, and will no doubt have to be considered in a future case) that a United Kingdom court could, in principle, decide that article 5(4) applied in Mr Whistons case in the face of clear Strasbourg jurisprudence that it would not, I am quite unconvinced that it would be appropriate to do so.
+Unless and until I am persuaded otherwise on the facts of a particular case, it seems to me that the common law should be perfectly well able to afford appropriate protection to the rights of people in the position of Mr Whiston without recourse to the Convention.
+The decision in West demonstrates that the common law affords protection in such circumstances, and Lord Browns actual conclusion in Black underlines the very limited nature of any exception which he had in mind in his obiter observations.
+It would be wrong not to confront squarely the decision in West on article
+5(4) and Lord Browns obiter dictum in Black, para 74.
+As Elias LJ said at [2014] QB 306, para 1, there is a growing number of cases which have bedevilled the appellate courts on the question whether and when decisions affecting prison detention engage article 5(4).
+As he added, [p]roblems arise because of the combination of general and imprecise Strasbourg principles and the complexity of English sentencing practices.
+I believe that this makes it particularly important that we grasp the nettle and hold that (i) the decision in West was per incuriam so far as it involved holding (or assuming) that article 5(4) was engaged, and (ii) the obiter dictum of Lord Brown in Black, para 74 is wrong in so far as it suggests that the law of the UK in relation to article 5(4) differs from the Strasbourg jurisprudence as summarised by Lord Hope in Giles, paras 40 and 51.
+So far as West is concerned, I have already identified certain problems in para 41 above.
+Furthermore, and importantly, it is not as if the actual decision in West thereby stands in any way impugned.
+As the headnote records, at [2005] 1 WLR 350 351, the conclusion reached by the House of Lords was primarily based on the appellants common law rights, as is reflected in Lord Binghams opinion, which devotes nine paragraphs to the common law and one to article 5(4).
+I suspect that the reason that the appellants Convention rights were considered was that one of the appellants had not relied on the common law in the Court of Appeal (see para 33).
+Properly analysed, all five opinions in Black support the view that West was per incuriam to the extent I have suggested.
+Lord Phillips and Lord Brown both expressly said it is inconsistent with the Strasbourg jurisprudence, and Lord Rodger and Lady Hale agreed with Lord Brown.
+Lord Rodger (with whom Lady Hale also agreed) and Lord Carswell each made it clear that they regarded the law as accurately set by Lord Hope in Giles, which is inconsistent with West so far as the applicability of article 5(4) is concerned.
+As to Lord Browns observation in Black at para 74, apart from being no more than an obiter dictum, it is inconsistent with the analyses of Lord Rodger and Lord Carswell in the same case.
+I must also confess that, in agreement with Lord Phillips, it seems rather hard to reconcile the reasoning which led Lord Brown to dismissing the appeal with his observations in para 74.
+It is true that Lord Rodger and Baroness Hale agreed with Lord Brown, but I do not think it would be right to take such a general agreement as approving every sentence in Lord Browns opinion, at least in so far as a sentence is not part of his [c]onsiderations and conclusions.
+Quite apart from that, it does not appear to have been argued in Black that it was wrongly held or assumed in West that article 5(4) was engaged, and therefore it is unsurprising that, in so far as they considered West, the opinions in Black proceeded on the basis that it was rightly decided.
+Indeed, the inconsistencies and uncertainties on this issue engendered by the opinions in Black appear to me to support the view that West was wrong in so far as it held or assumed that article 5(4) was engaged.
+Having had the benefit of reading Lady Hales judgment, I would add that it may be that the Strasbourg court would want to reconsider their jurisprudence, but, at the moment, it appears to me that it has the effect discussed above.
+Conclusion
+For these reasons, which reflect the reasons expressed in the very clear judgment of Elias LJ in the Court of Appeal, I would dismiss this appeal.
+LADY HALE
+I agree that this appeal should be dismissed but I wish to sound a note of caution about some of the reasoning which has led Lord Neuberger to reach that conclusion.
+In my view, the present law draws a principled distinction between those determinate prisoners who have reached the point in their sentence at which they are entitled to be released on licence and those who have not.
+If the former are recalled from their licence, and their representations to the Secretary of State fall on deaf ears, they are entitled to have their case referred to the Parole Board.
+The latter, whose release on licence was discretionary, are not.
+In Brown v United Kingdom (unreported, Application No 986/04, 26 October 2004) the Strasbourg court pointed out that there was a crucial distinction between prisoners serving a determinate sentence of imprisonment and those serving a life sentence.
+Once the latter had served the punishment part of their sentences, the reason for detaining them was not to punish them for their original offence but because they posed a continuing risk to the public.
+Hence article 5(4) required that their continued imprisonment had be subject to periodic judicial scrutiny.
+A determinate sentence, on the other hand, had been imposed by a court as punishment for the offence and that justification continued for its duration.
+The lawfulness of his detention does not depend, in Convention law terms, on whether or not he ceases to be at risk of re offending (page 5).
+The court went on to say that The fact that the applicant before the end of the sentence may expect to be released on licence does not affect this analysis (page 5).
+However, the position in our law is rather stronger than an expectation of release on licence.
+The prisoner is legally entitled to be released at a certain point in his sentence.
+This is irrespective of the risk that those responsible for his imprisonment may consider that he poses to the public.
+In a very real sense, therefore, the sentence imposed by the court as punishment for the offence is half the actual term pronounced by the judge (and indeed the judge has to explain this to him when imposing it).
+I appreciate, of course, that the judge imposes the sentence which he or she thinks correct, without regard to the right to early release.
+The whole of the sentence is intended as punishment.
+Once released at the nine month point, the prisoner remains liable to recall for the remainder of the term.
+However, the reasons for his recall could then be subject to scrutiny by the Parole Board, which will focus upon whether or not he poses a risk of re offending or otherwise endangering the public.
+Thus it can be said that, once a prisoner has passed the point of mandatory release on licence, the basis for any later recall and detention is the risk of reoffending rather than the original order of the court, and article 5(4) applies.
+Drawing this distinction is in fact consistent with the results of the domestic authorities.
+In R (Giles) v Parole Board [2004] 1 AC 1, Mr Giles had been sentenced to term of imprisonment totalling seven years which was longer than commensurate with the offences he had committed.
+He was entitled to be considered for parole after he had served half of this and to be granted parole after he had served two thirds.
+His complaint related to the absence of automatic reviews once he had served whatever period the judge had thought commensurate with the gravity of his offending (which the judge was not required to and did not specify).
+The issue was whether a determinate sentence which was partly punitive and partly preventative was in the same category as an indeterminate sentence and thus incompatible with article 5(4) unless (at least after the commensurate part had been served) there was a review before a judicial body with power to order release.
+The issue was not whether a prisoner who had been released, still less a prisoner with the right to be released, had the same rights as an indeterminate prisoner if recalled.
+Furthermore, it is difficult to characterise the position after a prisoner has reached the point of mandatory release as simply the administration of the sentence which has been imposed by the court.
+Parliament has decided that the prisoner is entitled to release and the criteria for recall and re release are quite different from those which led the judge to impose the original sentence.
+In R (West) v Parole Board [2005] 1 WLR 350, Mr West and Mr Smith were recalled after their mandatory release.
+As with the more recent case of R (Osborn) v Parole Board [2013] UKSC 61, [2013] 3 WLR 1020, the case was concerned with the procedures to be adopted by the Parole Board when considering whether they should be re released, and specifically whether the prisoner should be given an oral hearing.
+Although the opinions concentrate upon the common law requirements of fairness, I do not find it at all surprising that Lord Bingham appears to have taken it for granted that article 5(4) applied.
+Lord Slynn required to be convinced of that, but was persuaded by the analogy with the recall of a prisoner serving an indeterminate sentence.
+In Weeks v United Kingdom (1988) 10 EHRR 293, the Strasbourg court had held that article 5(4) applied.
+While I entirely accept that there is no analogy between a determinate and an indeterminate sentence, so as to require a review while the prisoner is still in prison, the analogy between the recall of a determinate sentence prisoner who was entitled to be released and the recall of an indeterminate sentence prisoner is much closer.
+In R (Black) v Secretary of State for Justice [2009] UKHL 1, [2009] 1 AC 949, Mr Black had not yet reached the point in his sentence when he was entitled to be released on licence.
+He was arguing that article 5(4) applied once he became eligible for discretionary release, so that it was a violation of his rights for the Secretary of State to reject the Parole Boards recommendation that he be released.
+So his too was not a case of recall after mandatory release.
+Once again, I do not find it surprising that Lord Brown considered that West was correctly decided; he was well aware of the difference between discretionary and mandatory release, but did not think that the opinions in West drew any distinction between them (para 73).
+I now think that this was a distinction which ought to have been given greater prominence and that it is a good reason for holding that their Lordships in West were correct in taking the view that article 5(4) applied.
+The only case which is not consistent with this analysis is Strasbourgs admissibility decision in Brown.
+Lord Neuberger is, of course, correct to say that the decision was based on the fundamental distinction between determinate and indeterminate sentences; but the court appears not to have considered whether there might be a distinction between recall after mandatory and discretionary release; further, the case had been considered by the Parole Board, which had the power to order his release, although this was before West, and so there had not been an oral hearing.
+Ganusauskas v Lithuania (unreported, Application No 47922/99, 7 September 1999), in contrast, not only appears to be a case of a proposed discretionary early release, but also one which was considered by a court.
+In this case, Mr Whiston was still serving the period of imprisonment
+which resulted from the sentence imposed upon him by the court: it is called the requisite custodial period.
+He was not yet entitled to release.
+Discretionary release subject a home detention curfew enforced by electronic monitoring may or may not be regarded as a continued deprivation of liberty, depending upon the length of the curfew, but it is very close to it.
+The prisoner may be recalled for the purely practical reason that it is not possible to monitor him at his address, which is nothing to do with whether he still constitutes a risk.
+It is the original sentence which means that he is still a prisoner.
+Hence it seems to me that our domestic law, which gives the Parole Board the power to decide upon the continued detention of a prisoner recalled after mandatory release on licence, but not after release on home detention curfew, draws a principled distinction.
+It is a distinction which is certainly consistent with the principles contained in article 5(1) and (4) of the European Convention.
+It is for that reason that, although agreeing with the ratio of the decision in this case, I would prefer it not to be taken further than the situation with which this case is concerned.
+I comfort myself that the views to the contrary expressed in Lord Neubergers judgment are, strictly speaking, obiter dicta.
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+140 years after the Judicature Act 1873, the stitching together of equity and the common law continues to cause problems at the seams.
+The present appeal concerns the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to be secured by a first charge over the borrowers property.
+As is customary in such transactions, the solicitors acted for both the bank and the borrowers.
+In June 2006 Mr and Mrs Sondhi applied to borrow 3.3m from the appellant (the bank).
+The loan was to be secured by a first legal charge over the borrowers home, which had been valued at 4.25m.
+The property was at that time the subject of a first legal charge in favour of Barclays Bank plc (Barclays).
+The Barclays charge secured borrowings on two accounts amounting to about 1.5m.
+The bank agreed to the borrowers proposal and made a formal offer on terms which included a condition that the existing mortgage was to be redeemed on or before completion of the mortgage advance.
+The bank retained the respondents (the solicitors) to act for it by a letter of instruction dated 5 July 2006.
+The letter of instruction stated that the solicitors were instructed in accordance with Council of Mortgage Lenders (CML) Handbook for England and Wales, 2nd edition.
+The handbook stated among other things that on completion the mortgage lender required a fully enforceable first charge over the property by way of legal mortgage, and that all existing charges must be redeemed on or before completion.
+The handbook also stated: You must hold the loan on trust for us until completion.
+If completion is delayed, you must return it to us when and how we tell you.
+The letter of instruction included copies of the banks offer to the borrowers and its conditions of offer.
+The solicitors were told by the borrowers that the property was mortgaged to Barclays.
+On 31 July Barclays provided them with information about the two accounts, which showed the total balance due as a little over 1.5m, but this was not a redemption statement.
+Meanwhile the solicitors asked the bank to forward the funds because completion was imminent.
+The bank did so on 1 August, and the solicitors telephoned Barclays for a redemption figure.
+Unfortunately there was then a misunderstanding.
+The solicitors were given a redemption figure for one of the two Barclays accounts which they mistakenly took to be the total figure.
+They were at fault because they should have realised from the information supplied by Barclays that the figure related only to one account.
+However, on 1 August the solicitors remitted to Barclays the figure which they wrongly believed was the total necessary to redeem the Barclays mortgage and remitted the balance of the 3.3m less expenses to the borrowers.
+The borrowers had executed what was intended to be a first charge over the property in favour of the bank, but there remained due to Barclays a debt of approximately 309,000 secured by the prior Barclays charge.
+Barclays naturally refused to release its charge unless the outstanding debt was paid in full.
+At first the borrowers promised to pay the necessary sum to Barclays but they failed to keep their word.
+The solicitors did not immediately tell the bank of their error, as they should, because they hoped to be able to resolve it.
+When eventually they informed the bank there were negotiations between the bank and Barclays with the result that the bank executed a deed of postponement acknowledging the primacy of the Barclays charge and Barclays consented to the registration of the appellant banks charge as a second charge.
+Subsequently the borrowers defaulted, and the property was repossessed and sold by Barclays in February 2011 for 1.2m, of which the bank received 867,697.
+The issue is how much the bank is entitled to recover from the solicitors.
+The bank claims that it is entitled to the full amount of its loan less the amount recovered by it.
+The solicitors contend that their liability is limited to the amount by which the bank suffered loss by comparison with its position if the solicitors had done as they should, which was to have paid Barclays the full amount of the Barclays debt so as to redeem the Barclays charge.
+The difference, leaving interest aside, is between 2.5m and 275,000 in round figures.
+The action
+The bank alleged that the solicitors acted in breach of trust, breach of fiduciary duty, breach of contract and negligence.
+It claimed relief in the forms of (i) reconstitution of the fund paid away in breach of trust and in breach of fiduciary duty, (ii) equitable compensation for breach of trust and breach of fiduciary duty, and (iii) damages for breach of contract and negligence, in each case with interest.
+The solicitors admitted that they acted negligently and in breach of contract but denied the other allegations and they claimed relief under section 61 of the Trustee Act 1925 if found to have acted in breach of trust.
+At the trial, before His Honour Judge Cooke, the bank accepted that the solicitors had acted in good faith.
+The judge found that the solicitors acted in breach of trust, which he analysed as follows: 23.
+In the present case, . what the defendants instructions authorised them to do with the funds paid to them was to pay to Barclays (or to its account) such sum as was required to procure a release of its charge, and pay the balance to the borrowers or to their order.
+Had they complied with their instructions they would have paid (taking all the figures in round terms) 1.5m to Barclays and 1.8m to the borrowers.
+In the event they paid 1.2m to Barclays and 2.1m to the borrowers.
+In my judgment, in so doing they committed a breach of trust in so far as payment was made contrary to the authority they had been given. 24.
+It does not however in my judgment necessarily follow that the whole of the payment of 3.3m was made in breach of trust.
+The difference between what the defendant did and what it ought to have done if it had complied with its instructions was the 300,000 that should have been paid to Barclays but was instead paid to the borrowers.
+That in my judgment was the extent of the breach of trust committed.
+It was not a breach of trust to pay 1.2m to Barclays; that payment was made as partial performance of the authority and obligation to discharge Barclays secured debt.
+It was not a breach of trust to pay 1.8m to the borrowers, as that was the sum to which they were entitled.
+The breach consisted of the failure to retain an additional 300,000 and apply that to the discharge of the Barclays debt.
+As to the remedy, the judge held that prima facie the bank was entitled to reconstitution of the trust fund by repayment of the amount wrongly paid away.
+As to the banks alternative claim for equitable compensation or damages, he said that where the breach consisted of failure to discharge a prior mortgage, with the result that the banks interest had been postponed to the Barclays charge, the bank was entitled to equitable compensation for the additional amounts due to Barclays for which Barclays had security in priority to the bank.
+The solicitors were therefore liable to the bank for the additional amount ultimately obtained by Barclays by reason of its prior security.
+The judge added that in those circumstances he did not intend to venture into the argument as to the appropriate remedy if the solicitors committed a breach of trust in paying out any part of the advance, except to find as a fact what would have happened but for the breach of trust.
+That question, he said, could be approached on one of two bases, namely what would the outcome have been if the solicitors had either (i) dealt with the funds held in the manner they were authorised to do or (ii) instead of making the unauthorised payment they did, had asked the bank for instructions at that point, disclosing the reasons why the payment was outside their existing authority.
+He concluded that on either approach the answer would be the same on the facts of the case.
+There would have been a short delay while the solicitors obtained a redemption figure in a form that bound Barclays to release its charge; they would then have paid that amount to Barclays; they would in due course have received a release and they would have registered the banks charge as a first charge.
+He added that, on the implausible scenario that the solicitors realising that they did not have a valid redemption quotation had approached the bank for further instructions, the bank would not have withdrawn from the transaction but would have instructed the solicitors to carry on with it, complying with their existing instructions.
+The judge added that it was clear from the evidence that the bank was anxious to lend to the borrowers and that the domestic re mortgage was driven by the need to facilitate business lending which the bank was very keen to make.
+The judge therefore gave judgment for the bank in the sum of 273,777 plus interest.
+It was not necessary in the circumstances for him to deal with the issue of relief under section 61 of the Trustee Act, which would have arisen if he had held that the bank was prima facie entitled to recover the entire amount of the loan.
+The Court of Appeal (Arden, Sullivan and Patten LJJ) held that the judge was wrong to treat the breach of trust as limited to that part of the mortgage advance which was paid to the borrowers instead of being used to discharge their liability to Barclays on the second account.
+The judgment of the court was given by Patten LJ.
+Citing earlier authorities and the provisions of the CML Handbook, he held that the solicitors had no authority to release any part of the funds advanced by the bank unless and until they had a redemption statement from Barclays coupled with an appropriate undertaking which enabled them to be sure that they would be able on completion to register the banks charge as a first charge over the property.
+The solicitors have not challenged the Court of Appeals reasoning on that point.
+However, the Court of Appeal upheld the judges decision regarding the relief to which the bank was entitled and dismissed the banks appeal.
+In reaching its conclusion the Court of Appeal applied what it understood to be the reasoning of the House of Lords in Target Holdings Ltd v Redferns [1996] AC 421.
+It held that where the breach of trust occurred in the context of a commercial transaction such as the present, Target Holdings established that equitable principles of compensation although not employing precisely the same rules of causation and remoteness as the common law, do have the capacity to recognise what loss the beneficiary has actually suffered from the breach of trust and to base the compensation recoverable on a proper causal connection between the breach and the eventual loss (per Patten LJ at para 47).
+Applying that principle to the facts found by the judge, Patten LJ said at para 49: If one asks as at the date of trial and with the benefit of hindsight what loss AIB has suffered then the answer is that it has enjoyed less security for its loan than would have been the case had there been no breach of trust.
+If [the solicitors] had obtained from Barclays a proper redemption statement, coupled with an undertaking to apply the sums specified in the statement in satisfaction of the existing mortgage, then the transaction would have proceeded to complete and AIB could have obtained a first legal mortgage over the Sondhis property.
+But although that did not happen, AIB did obtain a valid mortgage from the Sondhis which they were eventually able to register as a second charge and use to recover part of their loan from the proceeds of the security in priority to the Sondhis other creditors.
+Even had there been no such mortgage they would have been subrogated to Barclays first charge insofar as they discharged part of the Sondhis indebtedness by the payment of the 1.2m.
+In my view all of these are matters to be taken into account in considering what loss has ultimately been caused by the solicitors breach of trust.
+In the light of the judges findings it is not open to AIB to contend that but for the breach of trust it simply would have asked for its money back.
+As to the point made by the bank that in the present case the breach of trust was never made good because the bank never obtained a first charge over the intended security (by contrast with the position in Target Holdings), Patten LJ considered this irrelevant to the question of principle about how the banks equitable compensation was to be calculated.
+Target Holdings stood as authority for the broad principle identified by Lord Browne Wilkinson as follows: Equitable compensation for breach of trust is designed to achieve exactly what the word compensation suggests: to make good a loss in fact suffered by the beneficiaries and which, using hindsight and common sense, can be seen to have been caused by the breach.
+Like the trial judge, the Court of Appeal did not find it necessary to express any views about section 61 of the Trustee Act.
+Target Holdings
+The present case bears a close similarity to Target Holdings, but there is one factual difference which the bank submits is of critical importance.
+Both parties rely on Target Holdings in support of their respective cases.
+Neither party has expressly asked this court to depart from its reasoning, but part of the banks argument involves a re interpretation of the reasoning in Target Holdings which is in truth a dressed up attack on it.
+The reasoning in Target Holdings has attracted a considerable amount of commentary, partly supportive but mostly critical.
+There was only one speech, given by Lord Browne Wilkinson.
+In view of the arguments to which it has led, it is necessary to look at his speech in some detail.
+The facts of Target Holdings were described by Lord Browne Wilkinson as redolent of fraud, but the murky aspects did not affect the decision of the House of Lords.
+The matter reached the House of Lords on an appeal by the defendant solicitors against an order for summary judgment.
+The undisputed facts were that the plaintiff finance company agreed to make loans to a company called Crowngate on the security of commercial property, for which Crowngate provided a professional valuation at 2m.
+The solicitors acted both for the finance company and for Crowngate.
+For the purposes of the transaction the finance company transferred about 1.5m to the solicitors without any express instructions as to its release.
+It was common ground that the solicitors had implied authority to pay the money to or to the order of Crowngate on completion of the conveyance of the land to Crowngate, provided that Crowngate had executed a charge in favour of the finance company.
+The solicitors wrongly released the bulk of the money to Crowngate before completion of the conveyance or the execution of a charge by Crowngate.
+The conveyance of the property to Crowngate and its execution of a legal charge in favour of the finance company took place some days later.
+Crowngate later defaulted on repayment of the loans and was wound up as insolvent.
+The finance company sold the property as mortgagee for 500,000.
+The finance company sued the solicitors for breach of trust and negligence in releasing funds to Crowngate at a time when they had no authority to do so.
+On an application for summary judgment, the judge at first instance gave the solicitors unconditional leave to defend the claim in negligence, and there was no appeal against that part of his order.
+On the claim for breach of trust he gave the solicitors conditional leave to defend, but the Court of Appeal by a majority gave summary judgment to the finance company for the amount which the solicitors had advanced prematurely to Crowngate, less the amount recovered by the finance company.
+Peter Gibson LJ (with whom Hirst LJ agreed) held that the basic liability of a trustee in breach of trust was not to pay damages, but to restore to the trust fund that which had been lost to it or to pay compensation to the beneficiary for what he had lost.
+If a trustee wrongly paid away trust monies to a stranger, there was an immediate loss to the trust fund and the trustee came under an immediate duty to restore the monies to the trust fund.
+The remedies of equity were sufficiently flexible to require the finance company to give credit for monies received on the subsequent realisation of its security, but otherwise the solicitors liability was to pay the whole of the monies wrongly paid away.
+In a dissenting judgment Ralph Gibson LJ held that it was necessary for the
+court to examine the nature of the relationship between the parties out of
+which the solicitors equitable duty arose.
+If, having regard to the relationship and its purpose, the obligations of the parties, its purpose and the obligations of the parties within it, it appeared just to regard the breaches as having caused no loss, because the loss would have happened if there had been no breach, the court should so hold.
+Lord Browne Wilkinson began his speech by saying that the appeal raised a novel point on the liability of a trustee who commits a breach of trust to compensate beneficiaries for such breach.
+He framed the issue in this way: Is the trustee liable to compensate the beneficiary not only for losses caused by the breach but also for losses which the beneficiary would, in any event, have suffered even if there had been no such breach?
+He observed that at common law there are two principles fundamental to an award of damages.
+First, the defendants wrongful act must cause the damage of which complaint is made.
+Second, the plaintiff is to be put in the same position as he would have been in if he had not suffered the wrong for which he is now getting his compensation or reparation (Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39, per Lord Blackburn).
+Equity, he said, approaches liability for making good a breach of trust from a different starting point, but the same two principles are applicable as much in equity as at common law.
+Under both systems liability is fault based: the defendant is only liable for the consequences of the legal wrong he has done to the plaintiff and to make good the damage caused by such wrong.
+He therefore approached the consideration of the rules of equity relevant to the appeal with a strong predisposition against holding that Redferns should be held liable to compensate Target for a loss caused otherwise than by the breach of trust.
+Lord Browne Wilkinson examined two arguments made on behalf of the finance company.
+First, he considered whether Redferns were under a continuing duty to reconstitute the trust fund by paying back into client account the monies paid away in breach of trust (argument A).
+Secondly, he considered the argument accepted by the majority of the Court of Appeal that there was an immediate right to have the trust fund reconstituted at the moment of the breach of trust, which gave rise to a cause of action regardless of later events (argument B).
+Lord Browne Wilkinson prefaced his consideration of the arguments by some important observations about the nature of a beneficiarys rights under a trust.
+His starting point was that the basic right of a beneficiary is to have the trust duly administered in accordance with the provisions of the trust instrument, if any, and the general law.
+It followed that in relation to a traditional trust where a fund is held in trust for a number of beneficiaries having different, usually successive equitable interests, the right of each beneficiary is to have the whole fund vested in the trustees so as to be able to satisfy his equitable interest.
+The equitable rules of compensation for breach of trust, he said, have been largely developed in relation to such traditional trusts, where the only way in which all the beneficiaries rights can be protected is to restore to the trust fund what ought to be there. (As will be seen, some commentators have criticised his use of the term compensation for breach of trust in this context.
+They say that it confuses compensation with the primary accounting responsibility of a trustee.) In such a case, according to Lord Browne Wilkinson, the basic rule is that a trustee in breach of trust must either restore to the trust the assets which have been lost by reason of the breach of trust or pay monetary compensation to the trust estate.
+In so doing, courts of equity did not award damages but would make an in personam order for the payment of equitable compensation: Nocton v Lord Ashburton [1914] AC 932, at paras 952, 958, per Viscount Haldane LC.
+Having thus considered how courts of equity would enforce the basic right of a beneficiary to have the trust duly administered in a case where the trust was subsisting and where the only right of each beneficiary was to have the trust fund reconstituted as it should be, Lord Browne Wilkinson went on to consider the position if at the time of the action the trust had come to an end, for example by the beneficiary becoming absolutely entitled to the trust fund.
+In such a case, there was no need for restitution to the trust fund in order to protect other beneficiaries.
+The normal order would therefore be for the payment of compensation directly to the beneficiary.
+The measure of compensation would be the difference between what the beneficiary had in fact received and the amount which he would have received but for the breach of trust.
+That analysis (which I will refer to as Lord Browne Wilkinsons fundamental analysis) provided the foundation for all that followed.
+Lord Browne Wilkinson rejected the argument that a beneficiary had automatically a continuing right to the reconstitution of the trust fund (argument A).
+He repeated that in relation to a traditional trust, a beneficiary who was absolutely entitled to a trust fund had no automatic right to have the fund reconstituted.
+Moreover, while the fundamental principles of equity apply to all trusts, certain detailed rules applicable to one form of trust (a traditional trust) do not necessarily have to be applied to other forms of trust (a commercial trust) if the rationale does not sensibly apply to the latter.
+The House of Lords was concerned with a bare trust.
+Bare trusts may arise in a number of different contexts.
+In the case under consideration, it was one incident of a commercial transaction involving agency.
+The purpose of the solicitors retainer was to achieve the banks commercial objective.
+It was one aspect of arrangements between the parties which were mostly contractual.
+He said at p 436: I do not intend to cast any doubt on the fact that monies held by solicitors on client account are trust monies or that the basic equitable principles apply to any breach of such trust by solicitors.
+But the basic equitable principle applicable to breach of trust is that the beneficiary is entitled to be compensated for any loss he would not have suffered but for the breach.
+I have no doubt that, until the underlying commercial transaction has been completed, the solicitor can be required to restore to client account monies wrongly paid away.
+But to import into such trust an obligation to restore the trust fund once the transaction has been completed would be entirely artificial. (My emphasis).
+He added that, once a conveyancing transaction has been completed, the client has no right to have the solicitors client account reconstituted as a trust fund.
+To anticipate the argument discussed below, the bank relied on the second italicised sentence in this passage.
+It was submitted that in this case, in contrast with Target Holdings, the underlying commercial transaction was never completed because the shortfall in the payment needed to redeem the Barclays charge was never paid.
+To return to Lord Browne Wilkinsons analysis, argument B was the rationale of the judgments of the majority in the Court of Appeal.
+In rejecting it Lord Browne Wilkinson cited the (dissenting) judgment of McLachlin J in Canson Enterprises Ltd v Boughton & Co. (1991) 85 DLR (4th) 129 and, in particular, the following passage at p 163: In summary, compensation is an equitable monetary remedy which is available when the equitable remedies of restitution and account are not appropriate.
+By analogy with restitution, it attempts to restore to the plaintiff what has been lost as a result of the breach, ie, the plaintiffs loss of opportunity.
+The plaintiffs actual loss as a consequence of the breach is to be assessed with the full benefit of hindsight.
+Foreseeability is not a concern in assessing compensation, but it is essential that the losses made good are only those which, on a common sense view of causation, were caused by the breach.
+Lord Browne Wilkinson added: In my view this is good law.
+Equitable compensation for breach of trust is designed to achieve exactly what the word compensation suggests: to make good a loss in fact suffered by the beneficiaries and which, using hindsight and common sense, can be seen to have been caused by the breach.
+On that approach Lord Browne Wilkinson held that Target was not entitled to the summary judgment which the Court of Appeal had ordered.
+The arguments
+There were two branches to the arguments advanced on behalf of the bank by Mr Jeremy Cousins QC and Mr Nicholas Davidson QC.
+I have referred to the first in para 35.
+The second was advanced partly by Mr Cousins but in greater detail by Mr Davidson, who reinforced his argument by reference to the Solicitors Accounts Rules.
+Mr Davidson adopted in his argument the views expressed by Lord Millett (then Sir Peter Millett) in his article Equitys Place in The Law of Commerce (1998) 114 LQR 214 and more recently in his judgment in Libertarian Investments Ltd v Hall [2013] HKCFA 93; [2014] 1 HKC 368.
+A trustee owes a duty to hold trust funds and apply them for the purposes of the trust (a stewardship or custodial duty).
+He is bound to answer for his stewardship when called on by the beneficiary to do so.
+If for any reason he misapplies the trust fund, or part of it, he must immediately reconstitute the trust fund in full.
+If he fails to do so, the court will order him to reconstitute the fund in specie, if that is possible, or pay the equivalent sum in money so as to produce the same result in financial terms.
+So in Target Holdings, where the solicitor wrongly paid out the funds before obtaining an executed mortgage, he remained liable to restore the fund; but he was deemed notionally to have done so and to have paid out the money properly at the moment when the preconditions for an authorised disposal of the fund were met.
+The present case is different, it was submitted, because the solicitors failed on discovering their mistake to pay Barclays the additional sum necessary to redeem its charge.
+They could and should have done so, in which case their position would have been indistinguishable from that of Redferns.
+But it was now too late.
+This, Mr Davidson submitted, is the correct analysis of Target Holdings.
+Solicitors Accounts Rules are made under section 32 of the Solicitors Act 1974 (amended by the Legal Services Act 2007).
+At the material time the relevant Rules were the 1998 Rules. (On 6 October 2011 the Solicitors Regulation Authority made the SRA Accounts Rules 2011, which replaced the 1998 Rules.)
+The payment out of the banks money to the borrowers on 1 August 2006 was unauthorised by the bank and so was a breach of rule 22 of the 1998 Rules regarding the operation of a solicitors client account.
+Rule 7 obliged the solicitors to remedy the breach on its discovery.
+The rule provided: (1) Any breach of the rules must be remedied promptly upon discovery.
+This includes the replacement of any money improperly withheld or withdrawn from a client account. (2) In a private practice, the duty to remedy breaches rests not only on the person causing the breach, but also on all the principals in the practice.
+This duty extends to replacing missing client money or controlled trust money from the principals own resources, even if the money has been misappropriated by an employee or fellow principal, and whether or not a claim is subsequently made on the Solicitors Indemnity or Compensation Funds.
+Mr Graeme McPherson QC submitted on behalf of the solicitors that the Court of Appeal was right to see the case in terms of causation of loss, and it was also right in concluding that the proper measure of the banks loss was the difference between its actual financial position and the position in which it would have been if the solicitors had not acted in breach of trust.
+On the findings of the trial judge, the loss to the bank (excluding interest) was the amount by which the value of its security was less than it should have been, which was the same as the amount of the overpayment to the borrowers and underpayment to Barclays.
+Mr McPherson submitted that the Court of Appeal correctly applied the fundamental principles stated by Lord Browne Wilkinson.
+The commercial transaction in which the solicitors were instructed was completed in the sense that Lord Browne Wilkinson used that expression when the loan monies were advanced to the borrowers, thereby creating the relationship of lender and borrower between the bank and the borrowers, notwithstanding that the solicitors had wrongly failed to see that a sufficient part of the loan money was paid to Barclays on completion of the loan for the redemption of the Barclays mortgage.
+The bank was entitled to have the solicitors breach of trust remedied, but the appropriate remedy was for the solicitors to make good the shortfall.
+That remedy was provided by the judgment of Judge Cooke.
+The bank was right, he submitted, to concede that if the shortfall had been made good before Barclays enforced its charge by selling the land, the bank would not have been entitled to recover the additional amount claimed by it.
+The argument that since the solicitors failed to do so, they were liable additionally for the loss which the bank would still have suffered if the shortfall had been made good, lacked justice or common sense.
+Whether the amount for which Barclays had superior security was paid by the solicitors before or after the sale of land made no difference to the banks financial position and ought not to affect the legal result.
+As to the Solicitors Accounts Rules, rule 7 was not prescriptive about the form of remedy or how money improperly withdrawn from a client account should be replaced.
+In this case, Mr McPherson submitted, a proper form of replacement would have been to pay to Barclays the amount which had been wrongly paid to the borrowers rather than to Barclays.
+The solicitors failure to do so promptly might expose them to a risk of disciplinary proceedings, but did not affect the legal analysis.
+Discussion
+The debate which has followed Target Holdings is part of a wider debate, or series of debates, about equitable doctrines and remedies and their inter relationship with common law principles and remedies, particularly in a commercial context.
+The parties have provided the court with nearly 900 pages of academic writing.
+Much of it has been helpful, but to attempt even to summarise the many threads of argument which run through it, acknowledging the individual authors, would be a lengthy task and, more importantly, would not improve the clarity of the judgment.
+Nor is it necessary to set out a full historical account of all the case law cited in the literature reaching back to Caffrey v Darby (1801) 6 Ves Jun 488.
+In the present case the solicitors owed a compendium of duties to the bank.
+Their relationship was governed by a contract but they held the money advanced by the bank on trust for the purpose of performing their contractual obligations.
+They broke their contract and acted in breach of trust when they released to the borrowers the money advanced by the bank, less a part of the sum required to redeem the Barclays mortgage, when they should have paid to Barclays the full amount required for that purpose, in return for an undertaking to issue a redemption certificate, and should have released the diminished balance to the borrowers.
+The determination of this appeal involves two essential questions.
+The more important question in the appeal is whether Lord Browne Wilkinsons statement in Target Holdings of the fundamental principles which guided him in that case should be affirmed, qualified or (as the bank would put it) reinterpreted.
+Depending on the answer to that question, the second is whether the Court of Appeal properly applied the correct principles to the facts of the case.
+Two main criticisms have been made of Lord Browne Wilkinsons approach.
+They have been made by a number of scholars, most recently by Professor Charles Mitchell in a lecture on Stewardship of Property and Liability to Account delivered to the Chancery Bar Association on 17 January 2014, in which he described the Court of Appeals reasoning in this case as incoherent.
+He expressed the hope that if the case reaches the Supreme Court their Lordships will recognise that Lord Browne Wilkinson took a false step in Target when he introduced an inapt causation requirement into the law governing substitutive performance claims.
+He added that if it is thought too harsh to fix the solicitors in this case with liability to restore the full amount of the loan (subject only to a deduction for the amount received by the sale of the property), the best way to achieve this is not to bend the rules governing substitutive performance claims out of shape, but to use the Trustee Act 1925, section 61, to relieve them from some or all of their liability.
+The primary criticism is that Lord Browne Wilkinson failed to recognise the proper distinctions between different obligations owed by a trustee and the remedies available in respect of them.
+The range of duties owed by a trustee include: (1) a custodial stewardship duty, that is, a duty to preserve the assets of the trust except insofar as the terms of the trust permit the trustee to do otherwise; (2) a management stewardship duty, that is, a duty to manage the trust property with proper care; (3) a duty of undivided loyalty, which prohibits the trustee from taking any advantage from his position without the fully informed consent of the beneficiary or beneficiaries.
+Historically the remedies took the form of orders made after a process of accounting.
+The basis of the accounting would reflect the nature of the obligation.
+The operation of the process involved the court having a power, where appropriate, to falsify and to surcharge.
+According to legal scholars whose scholarship I have no reason to doubt, in the case of a breach of the custodial stewardship duty, through the process of an account of administration in common form, the court would disallow (or falsify) the unauthorised disposal and either require the trust fund to be reconstituted in specie or order the trustee to make good the loss in monetary terms.
+The term substitutive compensation has come to be used by some to refer to a claim for the value of a trust asset dissipated without authority. (See the erudite judgment in Agricultural Land Management Ltd v Jackson (No 2) [2014] WASC 102 of Edelman J, who attributes authorship of the term to Dr Steven Elliott.) In a case of breach of a trustees management stewardship duty, through the process of an action on the basis of wilful default, a court could similarly falsify or surcharge so as to require the trustee to make good the loss resulting from the breach.
+The phrase wilful default is misleading because, as Brightman LJ explained in Bartlett v Barclays Bank Trust Co Ltd (Nos 1 and 2) [1980] Ch 515, 546, conscious wrongdoing is not required.
+In this type of case the order for payment by the trustee of the amount of loss is referred to
+by some as reparative compensation, to differentiate it from substitutive
+compensation, although in a practical sense both are reparative compensation.
+In a case of breach of the duty of undivided loyalty, there are possible alternative remedies.
+If the trustee has benefited from it, the court will order him to account for it on the application of the beneficiary.
+In Bristol and West Building Society v Mothew [1998] Ch 1 Millett LJ described such relief as primarily restitutionary or restorative rather than compensatory.
+Alternatively, the beneficiary may seek compensation in respect of his loss.
+The history of the account of profits is more complex than this summary might suggest, and the whole concept of equitable compensation has developed and become far more prominent in the law since Nocton v Lord Ashburton.
+However, what I have said is sufficient to identify the main criticism advanced against Lord Browne Wilkinsons approach in Target Holdings.
+It is said that he treated equitable compensation in too broad brush a fashion, muddling claims for restitutive compensation with claims for reparative compensation.
+The relevant principle, it is suggested, in a case of unauthorised dissipation of trust funds is that the amount of the award is measured by the objective value of the property lost, determined at the date when the account is taken and with the benefit of hindsight, per Millett NPJ in Libertarian Investments Ltd v Hall [2014] 1 HKC 368, para 168.
+In determining the value of what has been lost, the court must take into account any offsetting benefits received, but it is not relevant to consider what the trustee ought to have done.
+The court is concerned only with the net value of the lost asset.
+This argument has the approval of Edelman J in Agricultural Land Management Ltd v Jackson (No2), and there are statements in the authorities cited by him which support that approach, for example, by Lord Halsbury LC in Magnus v Queensland National Bank (1888) 37 Ch D, at paras 466, 472, although the issue in that case was different.
+The defendant advanced an argument which Bowen LJ, at para 480, likened to a case where A man knocks me down in Pall Mall, and when I complain that my purse has been taken, the man says, Oh, but if I had handed it back again, you would have been robbed over again by somebody else in the adjoining street.
+It is good sense and good law that if a trustee makes an unauthorised disbursement of trust funds, it is no defence to a claim by the beneficiary for the trustee to say that if he had not misapplied the funds they would have been stolen by a stranger.
+In such a case the actual loss has been caused by the trustee.
+The hypothetical loss which would have otherwise have occurred through the strangers intervention would have been a differently caused loss, for which that other person would have been liable.
+Bowen LJs example is far removed in terms of causation of loss from the present case, where the loan agreement involved the bank taking the risk of the borrowers defaulting, and the fault of the solicitors lay in releasing the funds without ensuring that the bank received the full security which it required, with the consequence that the amount of the banks exposure was greater than it should have been.
+In Bank of New Zealand v New Zealand Guardian Trust Co Ltd [1999] 1 NZLR 664 Tipping J rightly observed that while historically the law has tended to place emphasis on the legal characterisation of the relationship between the parties in delineating the remedies available for breach of an obligation, the nature of the duty which has been breached can often be more important, when considering issues of causation and remoteness, than the classification or historical source of the obligation.
+Tipping J identified three broad categories of breach by a trustee.
+First, there are breaches of duty leading directly to damage or to loss of trust property.
+Secondly, there are breaches involving an element of infidelity.
+Thirdly, there are breaches involving a lack of appropriate skill and care.
+He continued at para 687: In the first kind of case the allegation is that a breach of duty by a trustee has directly caused loss of or damage to the trust property.
+The relief sought by the beneficiary is usually in such circumstances of a restitutionary kind.
+The trustee is asked to restore the trust estate, either in specie or by value.
+The policy of the law in these circumstances is generally to hold the trustee responsible if, but for the breach, the loss or damage would not have occurred.
+This approach is designed to encourage trustees to observe to the full their duties in relation to trust property by imposing on them a stringent concept of causation [ie a test by which a but for connection is sufficient].
+Questions of foreseeability and remoteness do not come into such an assessment.
+According to the banks argument, the responsibility of the solicitors is still more stringent.
+It seeks to hold them responsible for loss which it would have suffered on the judges findings if they had done what they were instructed to do.
+This involves effectively treating the unauthorised application of trust funds as creating an immediate debt between the trustee and the beneficiary, rather than conduct meriting equitable compensation for any loss thereby caused.
+I recognise that there are statements in the authorities which use that language to describe the trustees liability.
+For example, in Ex p Adamson; In re Collie (1878) 8 Ch D, at paras 807, 819, James and Baggallay LJJ said that the Court of Chancery never entertained a suit for damages occasioned by fraudulent conduct or for breach of trust, and that the suit was always for an equitable debt, or liability in the nature of a debt.
+This was long before the expression equitable compensation entered the vocabulary.
+Equitable monetary compensation for what in that case was straightforward fraud was clothed by the court in the literary costume of equitable debt, the debt being for the amount of the loss caused by the fraud.
+Whatever label is used, the question of substance is what gives rise to or is the measure of the equitable debt or liability in the nature of a debt, or entitlement to monetary compensation, and what kind of but for test is involved.
+It is one thing to speak of an equitable debt or liability in the nature of a debt in a case where a breach of trust has caused a loss; it is another thing for equity to impose or recognise an equitable debt in circumstances where the financial position of the beneficiaries, actual or potential, would have been the same if the trustee had properly performed its duties.
+Conclusion
+There are arguments to be made both ways, as the continuing debate among scholars has shown, but absent fraud, which might give rise to other public policy considerations that are not present in this case, it would not in my opinion be right to impose or maintain a rule that gives redress to a beneficiary for loss which would have been suffered if the trustee had properly performed its duties.
+The same view was expressed by Professor Andrew Burrows in Burrows and Peel (eds.), Commercial Remedies, 2003, pp 46 47, where he applauded Target Holdings for impliedly rejecting older cases that may have supported the view that the accounting remedy can operate differently from the remedy of equitable compensation.
+Despite the powerful arguments advanced by Lord Millett and others, I consider that it would be a backward step for this court to depart from Lord Browne Wilkinsons fundamental analysis in Target Holdings or to re interpret the decision in the manner for which the bank contends.
+All agree that the basic right of a beneficiary is to have the trust duly administered in accordance with the provisions of the trust instrument, if any, and the general law.
+Where there has been a breach of that duty, the basic purpose of any remedy will be either to put the beneficiary in the same position as if the breach had not occurred or to vest in the beneficiary any profit which the trustee may have made by reason of the breach (and which ought therefore properly to be held on behalf of the beneficiary).
+Placing the beneficiary in the same position as he would have been in but for the breach may involve restoring the value of something lost by the breach or making good financial damage caused by the breach.
+But a monetary award which reflected neither loss caused nor profit gained by the wrongdoer would be penal.
+The purpose of a restitutionary order is to replace a loss to the trust fund which the trustee has brought about.
+To say that there has been a loss to the trust fund in the present case of 2.5m by reason of the solicitors conduct, when most of that sum would have been lost if the solicitors had applied the trust fund in the way that the bank had instructed them to do, is to adopt an artificial and unrealistic view of the facts.
+I would reiterate Lord Browne Wilkinsons statement, echoing McLachlin Js judgment in Canson, about the object of an equitable monetary remedy for breach of trust, whether it be sub classified as substitutive or reparative.
+As the beneficiary is entitled to have the trust properly administered, so he is entitled to have made good any loss suffered by reason of a breach of the duty.
+A traditional trust will typically govern the ownership management of property for a group of potential beneficiaries over a lengthy number of years.
+If the trustee makes an unauthorised disposal of the trust property, the obvious remedy is to require him to restore the assets or their monetary value.
+It is likely to be the only way to put the beneficiaries in the same position as if the breach had not occurred.
+It is a real loss which is being made good.
+By contrast, in Target Holdings the finance company was seeking to be put in a better position on the facts (as agreed or assumed for the purposes of the summary judgment claim) than if the solicitors had done as they ought to have done.
+Other considerations reinforce my view that the House of Lords did not take a wrong step in Target Holdings.
+Most critics accept that on the assumed facts of Target Holdings the solicitors should have escaped liability.
+But if causation of loss was not required for them to be liable, some other way had to be found for exonerating them from liability (unless the court was to use section 61 of the 1925 Act as a deus ex machina).
+The solution suggested by the bank is that the solicitors in Target Holdings should be treated as if the moneys which had been wrongly paid out had remained in or been restored to the solicitors client account and had then been properly applied after the solicitors had obtained the necessary paperwork.
+There is something wrong with a state of the law which makes it necessary to create fairy tales.
+As to the criticism of the passage in Target Holdings where Lord Browne Wilkinson said that it would be wrong to lift wholesale the detailed rules developed in the context of traditional trusts and apply them to a bare trust which was but one incident of a wider commercial transaction involving agency, it is a fact that a commercial trust differs from a typical traditional trust in that it arises out of a contract rather than the transfer of property by way of gift.
+The contract defines the parameters of the trust.
+Trusts are now commonly part of the machinery used in many commercial transactions, for example across the spectrum of wholesale financial markets, where they serve a useful bridging role between the parties involved.
+Commercial trusts may differ widely in their purpose and content, but they have in common that the trustees duties are likely to be closely defined and may be of limited duration.
+Lord Browne Wilkinson did not suggest that the principles of equity differ according to the nature of the trust, but rather that the scope and purpose of the trust may vary, and this may have a bearing on the appropriate relief in the event of a breach.
+Specifically, Lord Browne Wilkinson stated that he did not cast doubt on the fact that monies held by solicitors on client account are trust monies, or that basic equitable principles apply to any breach of such trust by solicitors.
+What he did was to identify the basic equitable principles.
+In their application, the terms of the contract may be highly relevant to the question of fact whether there has been a loss applying a but for test, that is, by reference to what the solicitors were instructed to do.
+If the answer is negative, the solicitors should not be required to pay restitutive monetary compensation when there has in fact been no loss resulting from their breach.
+That is not because special rules apply to solicitors, but because proper performance of the trustees obligations to the beneficiary would have produced the same end result.
+I agree with the view of Professor David Hayton, in his chapter Unique Rules for the Unique Institution, the Trust in Degeling & Edelman (eds), Equity in Commercial Law (2005), pp 279 308, that in circumstances such as those in Target Holdings the extent of equitable compensation should be the same as if damages for breach of contract were sought at common law.
+That is not because there should be a departure in such a case from the basic equitable principles applicable to a breach of trust, whether by a solicitor or anyone else. (If there were a conflict between the rules of equity and the rules of the common law, the rules of equity would prevail by reason of section 49(1) of the Senior Courts Act 1981, derived from the provisions of the Judicature Act 1875.) Rather, the fact that the trust was part of the machinery for the performance of a contract is relevant as a fact in looking at what loss
+the bank suffered by reason of the breach of trust, because it would be
+artificial and unreal to look at the trust in isolation from the obligations for which it was brought into being.
+I do not believe that this requires any departure from proper principles.
+There remains the question whether the Court of Appeal properly applied the reasoning in Target Holdings to the facts of the present case.
+It was argued on behalf of the bank that this case falls within Lord Browne Wilkinsons statement that [u]ntil the underlying commercial transaction has been completed, the solicitor can be required to restore to the client account monies wrongly paid away.
+This argument constricts too narrowly Lord Browne Wilkinsons essential reasoning.
+Monetary compensation, whether classified as restitutive or reparative, is intended to make good a loss.
+The basic equitable principle applicable to breach of trust, as Lord Browne Wilkinson stated, is that the beneficiary is entitled to be compensated for any loss he would not have suffered but for the breach.
+In this case, proper performance of the obligations of which the trust formed part would have resulted in the solicitors paying to Barclays the full amount required to redeem the Barclays mortgage, and, as Patten LJ said, the bank would have had security for an extra 300,000 or thereabouts of its loan.
+When Lord Browne Wilkinson spoke of completion he was talking about a commercial transaction.
+The solicitors did not complete the transaction in compliance with the requirements of the CML Handbook.
+But as a commercial matter the transaction was executed or completed when the loan monies were released to the borrowers.
+At that moment the relationship between the borrowers and the bank became one of contractual borrower and lender, and that was a fait accompli.
+The Court of Appeal was right in the present case to understand and apply the reasoning in Target Holdings as it did.
+The further argument advanced on behalf of the bank in this court about the Solicitors Accounts Rules takes matters no further, for the reasons which Mr McPherson gave in his response to it.
+The solicitors were at fault in not reporting to the bank what they had done and in failing at that stage to remedy their breach of trust by ensuring that the shortfall was paid to Barclays.
+Their failure to do so was a breach of the rules, which could have disciplinary consequences but it does not affect the outcome in the present appeal.
+There is, as Mr McPherson submitted, no satisfactory logical reason why the question of the solicitors liability to provide redress to the bank for a loss which it would have suffered in any event should turn on their compliance or non compliance with their obligations under rule 7.
+My analysis accords with the reasoning of Lord Reed and with his general conclusions at paragraphs 133 to 138.
+Equitable compensation and common law damages are remedies based on separate legal obligations.
+What has to be identified in each case is the content of any relevant obligation and the consequences of its breach.
+On the facts of the present case, the cost of restoring what the bank lost as a result of the solicitors breach of trust comes to the same as the loss caused by the solicitors breach of contract and negligence.
+For those reasons I would dismiss the appeal.
+LORD REED
+I agree that this appeal should be dismissed.
+I have reached that conclusion for reasons which are substantially the same as those of Lord Toulson.
+Given the importance of the case, I have thought it right to set out my own reasoning, which considers the relationship between equitable compensation and common law damages on a somewhat broader basis.
+In his speech in Target Holdings Ltd v Redferns [1996] AC 421, Lord Browne Wilkinson drew upon the minority judgment of McLachlin J in Canson Enterprises Ltd v Boughton & Co (1991) 85 DLR (4th) 129.
+It may be helpful to begin by considering that case before turning to Target Holdings itself, not only because of the influence of McLachlin Js judgment upon the reasoning in that case, and in other cases in common law jurisdictions around the world, but also because the judgments in the case illustrate two approaches to equitable compensation: approaches which differ in respect of the relationship which they postulate between equitable compensation and common law damages.
+That issue lies at the heart of the arguments in this appeal.
+Canson Enterprises Ltd v Boughton & Co 80.
+The Canson Enterprises case was not concerned with a breach of trust, but with a breach of fiduciary duty by an agent.
+The claim was brought by developers of land against the lawyers who had acted for them in the purchase of the land.
+The lawyers acted in breach of their fiduciary duty by failing to disclose their knowledge that a third party was making a secret profit from the purchase.
+The development proved to be a failure as a result of the negligence of the engineers and contractors involved.
+The appellants sought
+to recover the loss incurred on the development from the lawyers, on the basis
+that they would not have proceeded with the purchase if they had known of the secret profit.
+Recognising that the loss would not be recoverable in an action founded on breach of contract, negligence or deceit, the appellants instead sought equitable compensation for breach of fiduciary duty, arguing that such compensation was unlimited by principles of causation, remoteness or intervening acts. 81.
+La Forest J, giving the judgment of the majority of the Supreme Court of Canada, distinguished at p 146 between the breach of a trustees obligation to hold the object of the trust, where on breach the concern of equity is that it be restored or, if that cannot be done, to afford compensation for what the object would be worth, and on the other hand a mere breach of duty, where the concern of equity is to ascertain the loss resulting from the particular breach of duty.
+In the former situation the difference between restoration and damages was abundantly clear, but in the latter situation the difference in practical result between compensation and damages is by no means as clear (p 145).
+La Forest J went on to observe at p 148, in relation to claims of the latter kind: The truth is that barring different policy considerations underlying one action or the other, I see no reason why the same basic claim, whether framed in terms of a common law action or an equitable remedy, should give rise to different levels of redress.
+On that footing (and subject to the proviso contained in the first part of that sentence), principles developed in the common law, such as the mitigation of damages and contributory negligence, could also be applied to analogous claims brought in an equitable context.
+In the instant case, damages equivalent to those for deceit were appropriate, and the appellants claim was therefore rejected.
+La Forest J acknowledged that the same result could have been produced using equitable principles alone. 82.
+McLachlin J agreed in the result, but based her analysis entirely on equitable principles.
+Her judgment, with which Lamer CJC and LHeureux Dub J concurred, merits detailed consideration. 83.
+First, she rejected the argument that the starting point, when quantifying compensation for breach of fiduciary duty, should be an analogy with tort or contract.
+In her view, that approach overlooked the unique foundation and goals of equity.
+In negligence and contract the parties were taken to be independent and equal actors, concerned primarily with their own self 84. interest.
+Consequently, the law sought a balance between enforcing obligations by awarding compensation, and preserving optimum freedom for those involved in the relationship.
+The essence of a fiduciary relationship, by contrast, was that one party pledged herself to act in the best interests of the other.
+The freedom of the fiduciary was diminished by the nature of the obligation she had undertaken.
+The fiduciary relationship had trust, not self interest, at its core.
+It therefore could not be assumed that an analogy with tortious damages was appropriate.
+Such an analogy would also have suggested that some well established equitable principles should not operate, such as the presumption that trust funds would be put to the most profitable use, and the requirement to disgorge profits gained through a breach of duty, even though such profits were not made at the expense of the person to whom the duty was owed.
+An analogy with tort would not be of great assistance in any event, since tort offered different measures of compensation, depending on the nature of the wrong.
+Rather than attempt to decide which tort was the closest analogy, the better approach was to look at the policy behind compensation for breach of fiduciary duty and determine how best to further that policy.
+In so far as shared concerns made it helpful, insights might be accepted from the law of tort. 85.
+Furthermore, an analogy with tort would require an artificial distinction to be drawn between a breach of trust involving the misapplication of property, where the tort analogy was on any view inapplicable, and other breaches of trust or of fiduciary obligations.
+In the former case, equity required property wrongfully appropriated to be restored together with an account of profits.
+Where there was no property which could be restored, the court could award compensation in lieu, with the ideal of restoring that which was lost through the breach of duty.
+That distinction should not obscure the fact that the measure of compensation was restitutionary in both cases.
+Any further distinction was difficult to support.
+It followed that equitable compensation was assessed at a different time from damages in tort or contract, and that the foreseeability of loss was not relevant.
+In a passage cited with approval in Target Holdings, McLachlin J said: 86.
+In this area tort and contract law are of little help.
+There, the general rule is that damages are assessed as at the time of the wrongful act, in view of what was then foreseeable, either by a reasonable person, or in the particular expectation of the parties.
+The basis of compensation at equity, by contrast, is the restoration of the actual value of the thing lost through the breach.
+The foreseeable value of the items is not in issue.
+As a result, the losses are to be assessed as at the time of trial, using the full benefit of hindsight. (p 162) That result reflected the nature of fiduciary obligations.
+In negligence, the law protected reasonable freedom of action of the defendant, and the reasonableness of his or her action could be judged by what consequences could be foreseen.
+In the case of a breach of fiduciary duty, as in deceit, there was no need to look to the consequences to judge the reasonableness of the actions.
+A breach of fiduciary duty was a wrong in itself, regardless of whether a loss could be foreseen. 87.
+Liability was however not unlimited.
+There was in the first place a requirement of causation: Just as restitution in specie is limited to the property under the trustee's control, so equitable compensation must be limited to loss flowing from the trustee's acts in relation to the interest he undertook to protect. (p 160) A further limitation arose from the plaintiffs responsibility not to act unreasonably.
+When the plaintiff, after due notice and opportunity, failed to take the most obvious steps to alleviate his or her losses, then it could rightly be said that the plaintiff had been the author of his own misfortune.
+I would comment that, rather than being a distinct principle, this might be regarded as following from the requirement of a direct causal connection. 88.
+A further potential limitation related to the interventions of third parties.
+McLachlin J distinguished between cases such as Caffrey v Darby (1801) 6 Ves Jun 488, where the failure of the trustees to take reasonable steps to recover payments owed to the trust had enabled a third party to default, and cases such as the instant case, where the plaintiff suffered loss as a result of the act of a third party after the fiduciarys obligation had terminated and the plaintiff had taken control of the property.
+These cases illustrate how the intervention of a third party may, or may not, interrupt the causal connection between a breach of trust and subsequent loss. 89.
+McLachlin J summarised her conclusions in another passage which was cited with approval in Target Holdings: In summary, compensation is an equitable monetary remedy which is available when the equitable remedies of restitution and account are not appropriate.
+By analogy with restitution, it attempts to restore to the plaintiff what has been lost as a result of the breach, ie the plaintiff's lost opportunity.
+The plaintiff's actual loss as a consequence of the breach is to be assessed with the full benefit of hindsight.
+Foreseeability is not a concern in assessing compensation, but it is essential that the losses made good are only those which, on a common sense view of causation, were caused by the breach.
+The plaintiff will not be required to mitigate, as the term is used in law, but losses resulting from clearly unreasonable behaviour on the part of the plaintiff will be adjudged to flow from that behaviour, and not from the breach.
+Where the trustee's breach permits the wrongful or negligent acts of third parties, thus establishing a direct link between the breach and the loss, the resulting loss will be recoverable.
+Where there is no such link, the loss must be recovered from the third parties. (p 163) Discussion 90.
+It may be helpful at this stage to discuss three important points which can be derived from this illuminating judgment, and to which I shall return after considering other relevant authorities.
+The first is the distinction between liability and remedy.
+A breach of trust involving the misapplication of trust property can be remedied by means of proceedings designed to secure the performance of the trust.
+Such proceedings can include the drawing up of an account as a preliminary to the distribution of the trust fund.
+If property has been misapplied, the relevant entry in the account will be disallowed and the property must be restored by the trustee.
+If the property cannot be restored in specie, the trustee must restore the trust fund to the position it would have been in but for the breach, by paying into the fund sufficient pecuniary compensation to meet that objective.
+The compensation then forms part of the trust fund and is held on the same terms as the remainder of the fund.
+Alternatively, and more commonly in practice, proceedings may be brought directly for such a monetary remedy. 91.
+As I shall explain, another remedy can be sought where the trust is no longer subsisting, namely the payment of compensation directly to the beneficiary absolutely entitled to the trust fund.
+The liability, in that situation, is to compensate the beneficiary for the diminution in the value of the trust fund which was caused by the breach of trust, to the extent of the beneficiarys interest.
+The measure of compensation is therefore the same as would be payable on an accounting, although the procedure is different. 92.
+The second point is that the loss resulting from a breach of duty has to be measured according to legal rules, and that different rules apply to the breach of different obligations.
+The rules applicable to the tort of negligence, for example, have a rationale related to the nature of that tort.
+In general, and subject to special rules applicable to particular situations, which have their own rationale, the liability resulting from a failure to take reasonable care to guard against a reasonably foreseeable risk is limited to such consequences as are reasonably foreseeable at the time of the negligent act.
+The different rule applicable to the tort of deceit has a different rationale, related to the different nature of that tort: the liability of a person who intentionally deceives another is to compensate for all the loss which that person suffers in consequence, whether it is foreseeable or not.
+In that situation, foreseeability does not enter into the wrongfulness of the defendants conduct, and there is no reason why it should limit the extent of his responsibility.
+The tort of conversion has a different rule again: the defendant is liable to pay the value of the asset in question, measured as at the date when it was converted.
+And so, mutatis mutandis, for other breaches of duty, whether in tort, contract or equity. 93.
+The rules appropriate to a breach of duty by a trustee similarly have to be determined in the light of the characteristics of the obligation in question.
+This focus upon the trustees obligations is the third and most important point.
+Putting the matter very broadly, compensation for the breach of an obligation generally seeks to place the claimant in the position he would have been in if the obligation had been performed.
+Equitable compensation for breach of trust is no different in principle: again putting the matter broadly, it aims to provide the pecuniary equivalent of performance of the trust. 94.
+Some of the typical obligations of the trustee of a fund are strict: for example, the duty to distribute the fund in accordance with the purposes of the trust.
+Others are obligations of reasonable care: for example, the duty to exercise reasonable care and skill in the management of the fund.
+Since these equitable obligations relate to a fund held for trust purposes, the trustees liability for a breach of trust will, again putting the matter broadly, depend upon its effect upon the fund: the measure of compensation will generally be based upon the diminution in the value of the fund caused by the trustees default. 95.
+The only other observation I need make in relation to the judgment of McLachlin J concerns the statement that causation should be assessed on a common sense view.
+In its context, that statement served to emphasise that principles of causation developed in other contexts cannot be applied automatically in an equitable setting.
+Difficult questions of causation do not however always have an intuitively obvious answer.
+Legal analysis is as important in equity as in the common law.
+Target Holdings Ltd v Redferns 96.
+The facts of Target Holdings Ltd v Redferns are well known.
+The case concerned a claim against a firm of solicitors, sued for its involvement in a mortgage fraud.
+Fraud as well as negligence was pleaded.
+The solicitors had parted with the mortgage advance to the wrong person, prior to the completion of the transaction and without obtaining the security.
+The transaction was however subsequently completed and the security was obtained.
+It later proved hopelessly inadequate.
+The claimant sought summary judgment on the basis of the unauthorised payment.
+They argued that the solicitors came under an immediate duty to restore the money paid away in breach of trust, and that it was irrelevant that the claimant had subsequently received exactly the security that it was intending to obtain.
+This was described by Lord Browne Wilkinson as argument (B).
+Before the House of Lords, it was also argued that the claimant remained entitled at the date of judgment to have the solicitors reconstitute the trust fund (argument (A)). 97.
+The Court of Appeal gave judgment in favour of the claimant.
+An appeal was allowed by the House of Lords, for reasons given by Lord Browne Wilkinson.
+The reasoning has been much debated, and in view of the invitation to review it in the present appeal it is necessary to consider it in some detail. 98.
+His Lordship began by noting that the case was concerned with the rights of a beneficiary, and summarised the nature of such rights: The basic right of a beneficiary is to have the trust duly administered in accordance with the provisions of the trust instrument The equitable rules of compensation for breach of trust have been largely developed in relation to traditional trusts, where the only way in which all the beneficiaries rights can be protected is to restore to the trust fund what ought to be there.
+In such a case the basic rule is that a trustee in breach of trust must restore or pay to the trust estate either the assets which have been lost to the estate by reason of the breach or compensation for such loss.
+If specific restitution of the trust property is not possible, then the liability of the trustee is to pay sufficient compensation to the trust estate to put it back to what it would have been had the breach not been committed Even if the immediate cause of the loss is the dishonesty or failure of a third party, the trustee is liable to make good that loss to the trust estate if, but for the breach, such loss would not have occurred.
+Thus the common law rules of remoteness of damage and causation do not apply.
+However there does have to be some causal connection between the breach of trust and the loss to the trust estate for which compensation is recoverable, viz the fact that the loss would not have occurred but for the breach. (p 434) 99.
+Where the trust was still subsisting, the only right of each beneficiary was to have the trust fund reconstituted as it should be.
+Where however the trust had come to an end, and the beneficiary had become absolutely entitled, it was normally inappropriate to order the reconstitution of the trust fund and its subsequent distribution: instead, the court ordered the payment of compensation directly to the beneficiary: The measure of such compensation is the same, ie the difference between what the beneficiary has in fact received and the amount he would have received but for the breach of trust.
+Accordingly, in traditional trusts for persons by way of succession, once those trusts had been exhausted and the fund had become absolutely vested in possession, the beneficiary was not normally entitled to have the exhausted trust reconstituted: his right was to be compensated for the loss he had suffered by reason of the breach. 100.
+What Lord Browne Wilkinson was discussing at this point was a question of remedy.
+The pecuniary remedy for a breach of trust affecting the trust fund cannot involve a payment to a particular beneficiary, unless the beneficiary is absolutely entitled to the fund.
+Absent such entitlement, the only way to ensure that each beneficiary is appropriately compensated is for the payment to be made into the trust fund, to be held in accordance with the terms of the trust.
+This is accomplished by adding the appropriate amount to the fund, so that the fund is restored or replenished.
+Where, on the other hand, the trust is no longer subsisting, compensation for the breach of trust can be paid directly to the beneficiary absolutely entitled.
+As Lord Browne Wilkinson explained, the measure of compensation is the same as if there had been an accounting and execution of the trust: in other words, the difference between what the beneficiary ought to have received and what he has in fact received as a result of the diminution in the trust fund. 101.
+His Lordship then turned to argument (A).
+He began by stating that even if the equitable rules developed in relation to traditional trusts were directly applicable to such a case as this, a beneficiary absolutely entitled to a trust fund had no automatic right to have the trust fund reconstituted.
+He had already explained why that was so, but had also explained the corollary, namely that the beneficiary would in that event be entitled to compensation in the same measure (unless the trustee was under no liability, for example by reason of acquiescence by the beneficiary in the breach of trust).
+His Lordships focus was again on the question of the appropriate remedy, rather than the measure of liability.
+He continued: But in my judgment it is in any event wrong to lift wholesale the detailed rules developed in the context of traditional trusts and then seek to apply them to trusts of quite a different kind.
+In the modern world the trust has become a valuable device in commercial and financial dealings.
+The fundamental principles of equity apply as much to such trusts as they do to the traditional trusts in relation to which those principles were originally formulated.
+But in my judgment it is important, if the trust is not to be rendered commercially useless, to distinguish between the basic principles of trust law and those specialist rules developed in relation to traditional trusts which are applicable only to such trusts and the rationale of which has no application to trusts of quite a different kind. (p 435) 102.
+This is one of a number of passages in the speech which have given rise to debate.
+The point that there are different types of trust, and that it would be mistaken to think that they must all be governed in every respect by identical rules, had also been made by McLachlin J in Canson Enterprises at pp 156 157.
+In particular, as Lord Browne Wilkinson pointed out, commercial trusts, usually arising out of contractual relationships rather than the transfer of property by way of gift, differ in a number of respects from the more traditional trust.
+That is not to say that there is a categorical distinction between trusts in commercial and non commercial relationships, or to assert that there are trusts to which the fundamental principles of equity do not apply.
+It is, on the other hand, to recognise that the duties and liabilities of trustees may depend, in some respects, upon the terms of the trust in question and the relationship between the relevant parties (cf Kelly v Cooper [1993] AC 205, 214 215). 103.
+Lord Browne Wilkinson then considered the particular type of trust with which the appeal was concerned.
+He began by identifying the relevant characteristics of the trust: 104.
+Lord Browne Wilkinson continued: This case is concerned with a trust which has at all times been a bare trust.
+Bare trusts arise in a number of different contexts: eg by the ultimate vesting of the property under a traditional trust, nominee shareholdings and, as in the present case, as but one incident of a wider commercial transaction involving agency.
+In the case of moneys paid to a solicitor by a client as part of a conveyancing transaction, the purpose of that transaction is to achieve the commercial objective of the client, be it the acquisition of property or the lending of money on security.
+The depositing of money with the solicitor is but one aspect of the arrangements between the parties, such arrangements being for the most part contractual. (p 436) I do not intend to cast any doubt on the fact that moneys held by solicitors on client account are trust moneys or that the basic equitable principles apply to any breach of such trust by solicitors.
+But the basic equitable principle applicable to breach of trust is that the beneficiary is entitled to be compensated for any loss he would not have suffered but for the breach.
+I have no doubt that, until the underlying commercial transaction has been completed, the solicitor can be required to restore to client account moneys wrongly paid away.
+But to import into such trust an obligation to restore the trust fund once the transaction has been completed would be entirely artificial.
+The obligation to reconstitute the trust fund applicable in the case of traditional trusts reflects the fact that no one beneficiary is entitled to the trust property and the need to compensate all beneficiaries for the breach.
+That rationale has no application to a case such as the present.
+To impose such an obligation in order to enable the beneficiary solely entitled (ie the client) to recover from the solicitor more than the client has in fact lost flies in the face of common sense and is in direct conflict with the basic principles of equitable compensation.
+In my judgment, once a conveyancing transaction has been completed the client has no right to have the solicitor's client account reconstituted as a trust fund. (p 436) 105.
+This passage contains a number of ideas.
+The first is that the basic equitable principle applicable to breach of trust is that the beneficiary is entitled to be compensated for any loss he would not have suffered but for the breach.
+That is a broad proposition, which leaves open what precisely is meant by loss, and how it is assessed.
+As McLachlin J explained in Canson Enterprises, the basic obligation of a defaulting trustee is to restore the trust fund to the position it would have been in but for the default.
+In relation to the breach of a fiduciary duty, her Ladyship said (in the passage cited at para 89, also cited by Lord Browne Wilkinson with approval at a later point in his speech) that, by analogy, compensation for breach of such a duty attempts to restore to the plaintiff what has been lost as a result of the breach.
+Lord Browne Wilkinsons dictum should in my view be understood in that sense: the loss is what the beneficiary has been deprived of as a result of the breach. 106.
+The second idea is that, where a solicitor holds money on trust as an incident of a commercial transaction, he can be required to restore moneys paid away until the commercial transaction has been completed, but not after that point, since it would be artificial to impose the same obligation once the transaction has been completed.
+Lord Browne Wilkinson is again focusing on procedure: as he had previously explained, the appropriate remedy where the trust is no longer in subsistence is the payment of compensation directly to the beneficiary.
+Consistently with that general approach, it would be inappropriate to require a trustee to reconstitute the trust fund (such as a solicitors client account) in a case where a bare trust had come into being for the purpose of a commercial transaction which had in practical terms been completed, leaving no active obligations for the trustee to perform.
+As he had previously explained, the measure of compensation would be the same as the loss to the trust fund. 107.
+The third idea, expressed in the penultimate sentence of the passage I have cited, is that to impose an obligation to reconstitute the trust fund, in order to enable the client to recover more than he has in fact lost, flies in the face and is in direct conflict with the basic principles of equitable compensation.
+That is clearly correct.
+As Lord Browne Wilkinson went on to explain, an obligation to reconstitute the trust fund does not inexorably require a payment into the fund of the value of misapplied property: for example, where the consequences of the breach of trust have been mitigated by subsequent events. 108.
+Lord Browne Wilkinson might however be understood, from the juxtaposition of the two final sentences (the last sentence stating a conclusion which might be read as being based on his rejection of the idea postulated in the preceding sentence), to be envisaging that the remedy of an accounting might result in the trustees paying more into the trust fund than had actually been lost by the beneficiary entitled to the fund.
+I doubt however whether that was what Lord Browne Wilkinson meant.
+The direct payment of equitable compensation to the beneficiary is procedurally different from the reconstitution and distribution of the trust fund, but the end result should not be different: otherwise, the beneficiary would receive something other than his entitlement under the trust.
+Equally, the remedy of an accounting and execution of the trust cannot require more to be paid into the trust fund than is missing from it. 109.
+Argument (A) was thus dismissed on a procedural ground: the wrong remedy had been sought.
+Lord Browne Wilkinson then turned to argument (B).
+He noted that the Court of Appeal had drawn a distinction between the case in which the breach of trust consisted of some failure in the administration of the trust, and the case where a trustee wrongfully paid away trust moneys.
+There was, he said, no doubt that in the former case, the restitution or compensation payable was assessed at the date of trial, not of breach.
+In the latter case, however, the Court of Appeal considered that events between the date of breach and the date of trial were irrelevant in assessing the loss suffered by reason of the breach. 110.
+As Lord Browne Wilkinson remarked, the fact that there was an accrued cause of action as soon as the breach was committed did not mean that the quantum of the compensation payable was fixed on that date.
+The quantum was fixed at the date of judgment, as the figure then necessary to put the trust fund or the beneficiary back into the position it would have been in had there been no breach. 111.
+In that regard, Lord Browne Wilkinson cited the judgment of McLachlin J in Canson Enterprises, which he described as containing an illuminating exposition of the rules applicable to equitable compensation for breach of trust.
+In particular, he cited passages from the judgment which I also have cited at paras 86, 87 and 89, in which her Ladyship discussed causation, foreseeability and the time of assessment.
+He commented: In my view this is good law.
+Equitable compensation for breach of trust is designed to achieve exactly what the word compensation suggests: to make good a loss in fact suffered by the beneficiaries and which, using hindsight and common sense, can be seen to have been caused by the breach. (p 439) In the instant case, the claimant obtained exactly what it ought to have obtained, namely a valid security for the sum advanced, and therefore suffered no compensatable loss. 112.
+Finally, there was accepted to be a triable issue as to whether the premature payment of the mortgage advance to its recipients had been essential to enable the entire transaction to proceed.
+Lord Browne Wilkinson commented that if that was established, the loss suffered by the claimant by reason of the breach of trust would be the total sum advanced less the proceeds of the security.
+That comment is consistent with the approach to foreseeability, and to interventions by third parties, adopted by McLachlin J. 113.
+Although the passages which I have discussed in paras 102 and 105 108 may be capable of a different interpretation, at least if read in isolation, it appears therefore that Lord Browne Wilkinson intended his approach to be consistent with that of McLachlin J in Canson Enterprises. 114.
+The result of the appeal was undoubtedly correct.
+The mortgage advance had been paid out prematurely and to the wrong person, with the consequence that at that point the trustee did not have the charges which he ought to have had.
+That deficiency was however remedied when the charges were obtained some weeks later.
+The assets under the control of the trustee were then exactly what they ought to have been.
+There was nothing missing from the trust fund, and therefore no basis for a claim for restoration.
+For the same reason, there was no basis for a claim to compensation by the mortgagee. 115.
+Lord Browne Wilkinsons judgment has been interpreted by some academic lawyers as adopting a reparative measure of compensation, as distinct from McLachlin Js substitutive analysis.
+That interpretation is based primarily on Lord Browne Wilkinsons statement that the beneficiary is entitled to be compensated for any loss he would not have suffered but for the breach.
+That dictum has been interpreted as meaning that equitable compensation is to be assessed in the same way as common law damages, either generally or at least in circumstances such as those with which the case was concerned. 116.
+I do not understand that to have been Lord Browne Wilkinsons meaning.
+As I have explained at paras 99 100, 105 108 and 110 111, and particularly in view of his endorsement of the passages cited from McLachlin Js judgment, which I discussed at paras 86 and 87 89, I am not persuaded that Lord Browne Wilkinson intended to depart from the orthodox view that the equitable obligation arising from a breach of trust affecting the trust fund is to restore the fund to the position it would have been in but for the breach, and that the measure of compensation, whether it is payable into the trust fund or directly to a beneficiary, should be assessed on that basis.
+Furthermore, as I shall shortly explain, Target Holdings has not been understood in other leading common law jurisdictions as having established that the basis upon which equitable compensation is assessed is the same as the basis upon which common law damages are calculated.
+If that were its effect, the development of equity in English law would be at odds with its development in those jurisdictions.
+The case law since Target Holdings 117.
+It remains to consider, prior to turning to the present case, some of the most significant cases in this area since Target Holdings. 118.
+In Bristol and West Building Society v Mothew [1998] Ch 1, a case concerned with a negligent misrepresentation made by a solicitor to his client, Millett LJ drew a distinction at pp 16 17 between a duty which is special to fiduciaries, such as the fiduciary duty of loyalty, and a duty which is incumbent upon a fiduciary but is not peculiar to a person in that position, such as the duty of care imposed on those who have assumed responsibility for the property or affairs of others.
+Millett LJ commented: Although the remedy which equity makes available for breach of the equitable duty of skill and care is equitable compensation rather than damages, this is merely the product of history and in this context is in my opinion a distinction without a difference.
+Equitable compensation for breach of the duty of skill and care resembles common law damages in that it is awarded by way of compensation to the plaintiff for his loss.
+There is no reason in principle why the common law rules of causation, remoteness of damage and measure of damages should not be applied by analogy in such a case. (p 17) 119.
+As I shall explain, that dictum has been questioned, or given a restrictive application, in a number of other jurisdictions.
+It is unnecessary to consider it in detail in the present appeal.
+It may however be helpful to make two observations.
+First, Millett LJ was not considering the liability of a trustee.
+Secondly, as McLachlin J pointed out in Canson Enterprises, the application by analogy of the common law rules is complicated by the fact that there is no single set of common law rules.
+It is necessary to consider the specific characteristics of the obligation in question (such as the duty to exercise care in the management of a trust fund), and the respects in which it resembles or differs from obligations arising in other areas of the law (such as duties of care in contract or in tort), in order for the law governing liability for the breach of these various obligations to be coherent. 120.
+The only other decision in this jurisdiction which need be mentioned is FHR European Ventures LLP v Cedar Capital Partners LLC [2014] UKSC 45; [2014] 3 WLR 535.
+The case concerned the question whether a principal had a proprietary claim to a secret profit received by his agent in breach of his fiduciary duty.
+I note in passing that the alternative remedy, a personal claim to payment of the amount brought out by an account of profits, was described by the court as equitable compensation.
+In order to avoid confusion, it is necessary to note that the expression was being used in a different sense from the one that it bears in the present context. 121.
+In reaching its conclusion in the FHR case, the court was influenced by the case law of other common law jurisdictions, remarking at para 45 that it seemed highly desirable for all those jurisdictions to learn from each other, and at least to lean in favour of harmonising the development of the common law round the world.
+With that observation in mind, I turn to the more recent case law of Canada, Australia, New Zealand and Hong Kong. 122.
+In Canada, the argument in Canson Enterprises has been carried forward in a number of cases.
+In M(K) v M(H) [1992] 3 SCR 6, 80 81, 86 it was agreed that where the same policy objectives underlie two different causes of action similar measures of compensation may be appropriate; and the same approach can be seen in Cadbury Schweppes v FBI Foods [1999] 1 SCR 142.
+In Hodgkinson v Simms [1994] 3 SCR 377 La Forest J, giving the judgment of the majority, drew the same distinction as had been drawn by McLachlin J in Canson Enterprises between fiduciary relationships and commercial interactions governed by the common law, the former being characterised by one partys duty to act in the others best interests, and often by power on the one hand and dependency on the other, whereas the common law generally respected the pursuit of self interest.
+The proper approach to damages for breach of a fiduciary duty was said to be restitutionary.
+On that basis, the majority of the court concluded that the claimant was entitled to be compensated for the loss sustained on investments which he had made on the advice of a fiduciary who had failed to disclose a conflict of interest, notwithstanding that the loss had resulted from an unforeseen general economic downturn.
+The decision of the majority in Canson Enterprises was explained as holding that a court exercising equitable jurisdiction was not precluded from considering the principles of remoteness, causation and intervening act where necessary to reach a just result. 123.
+In Australia, McLachlin Js analysis of the distinction between fiduciary relationships and those regulated by tort and contract has been accepted by the High Court: Pilmer v Duke Group Ltd [2001] HCA 31; (2001) 207 CLR 165, para 71.
+The court has consequently questioned the view, based on the dictum of Millett LJ in Bristol and West Building Society v Mothew, that equitable compensation for breach of the duty of skill and care in the administration of a trust should be governed by common law rules: Youyang Pty Ltd v Minter Ellison Morris Fletcher [2003] HCA 15; (2003) 212 CLR 484, paras 39 40.
+The Australian cases proceed on the basis that liability in respect of losses sustained by reason of a breach of duty by a trustee or other fiduciary is determined by equitable principles, and that these may require different rules from those which govern the assessment of damages in tort or contract: see for example Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449, which concerned causation, and Pilmer v Duke Group Ltd, which concerned contributory negligence.
+In the latter case, McHugh, Gummow, Hayne and Callinan JJ said at para 85: In Australia, the measure of compensation in respect of losses sustained by reason of breach of duty by a trustee or other fiduciary is determined by equitable principles and these do not necessarily reflect the rules for assessment of damages in tort or contract. 124.
+Target Holdings was considered by the High Court of Australia in Youyang Pty Ltd v Minter Ellison Morris Fletcher, a case on broadly analogous facts, with the important distinction that the security which would have been good was never provided (in addition, the plaintiff investor was not the client of the solicitor trustee).
+The court distinguished Target Holdings on the basis that it was a case where, ultimately, the property was conveyed to the mortgagor and the charges were executed.
+That element being absent in Youyang, the defendant solicitors were ordered to repay the monies which they had paid out in breach of trust.
+The court regarded it as beside the point that, after the money had been disbursed in breach of trust, there was also conduct by third parties which resulted in the loss of the unsecured funds.
+In those respects the decision appears to me to be consistent with the approach adopted in Target Holdings. 125.
+As in Target Holdings, the court observed that the nature of the remedy for breach of trust could vary to reflect the terms of the trust and the breach of which complaint was made.
+In particular, as in Target Holdings, the solicitors did not hold the moneys for indeterminate or contingent beneficial interests, and the case was not one where the appropriate remedy was to have duly administered a restored trust fund. 126.
+McLachlin Js approach in Canson Enterprises to the assessment of compensation for the breach of a fiduciary duty, as set out in the passage which I have cited at para 89, was also accepted by Elias CJ in the Supreme Court of New Zealand: Premium Real Estate Ltd v Stevens [2009] NZSC 15; [2009] 2 NZLR 384, paras 34 36.
+In relation to remoteness of damage, it was observed that the question of foreseeability in common law claims was effectively overtaken by the relationships out of which fiduciary duties arose, and that different policy considerations might affect remoteness of damage in cases of breach of fiduciary duty than in common law claims.
+But the necessity of demonstrating that a loss was caused by the claimed breach of fiduciary duty followed from the compensatory justification for the remedy. 127.
+In the earlier case of Bank of New Zealand v New Zealand Guardian Trust Co Ltd [1999] 1 NZLR 664, Millett LJs dictum in Bristol and West Building Society v Mothew [1998] Ch 1, 17 was cited with approval by the Court of Appeal.
+The case was not concerned with the duty of a trustee to exercise reasonable care and skill in the management of a trust fund, but, like Mothew, with a duty of care relating to the provision of information.
+The trustee was required, under a debenture deed securing advances by banks to a property investment company, to take care to detect breaches of the deed by the company.
+The plaintiff bank claimed to have suffered loss as a consequence of the trustees negligent failure to detect and report breaches by the company, notwithstanding the absence of any diminution in the value of the security.
+The case illustrates how the obligations of a trustee under a commercial trust can differ from those typically imposed by more traditional trusts: as Tipping J observed, the relationship of trustee and beneficiary was in a sense, incidental (p 688). 128.
+This rapid, and inevitably somewhat superficial and selective, tour dhorizon can be completed by considering two decisions of the Hong Kong Final Court of Appeal.
+First, in Akai Holdings Ltd v Kasikornbank PCL [2011] 1 HKC 357, it was said, under reference to Target Holdings and the Australian case of Maguire v Makaronis, that the notion that equitable compensation is assessed on a somewhat different basis from common law damages is clearly right (albeit that the difference can be overstated) (para 131).
+It was also accepted, under reference to those cases and to the judgment of McLachlin J in Canson Enterprises, that the losses made good are only those which, on a common sense view of causation, were caused by the breach (para 152). 129.
+Secondly, in Libertarian Investments Ltd v Hall [2014] 1 HKC 368 Ribeiro PJ carried out a valuable review of the authorities concerned with equitable compensation in the context of a commercial relationship.
+He noted that where a relationship was fiduciary, there might be obligations which were not fiduciary in nature; and, equally, even in a commercial relationship, there might be aspects which engaged fiduciary obligations.
+As Blanchard J had stated in Amaltal Corpn Ltd v Maruha Corpn [2007] NZSC 40; [2007] 3 NZLR 192, para 21: That is because in the nature of that particular aspect of the relationship one party is entitled to rely upon the other, not just for adherence to contractual arrangements between them, but also for loyal performance of some function.
+Hence the important focus was on the nature of the obligation in question. 130.
+Ribeiro PJ accepted the suggestion made by Brennan CJ in Breen v Williams (1996) 186 CLR 71 that fiduciary duties could arise either from agency or from a relationship of ascendancy or influence by one party over another, or dependence or trust on the part of that other.
+An obvious example of the agency type of situation was the case where a person received money or other property for and on behalf of or as trustee of another person.
+Accordingly: It is plain that fiduciary duties may well arise as aspects of a commercial relationship.
+Moreover, it is clear that legal and equitable rights and remedies are capable of co existence, even in a single transaction. (para 70) 131.
+Ribeiro PJ accepted McLachlin Js explanation of the distinction between fiduciary and common law relationships in a commercial context, and its reflection in the differences between equitable compensation and common law damages in relation to causation, foreseeability, mitigation of loss and the time of assessment (at paras 72, 80 81, 90 92 and 96). 132.
+Ribeiro PJ also considered the distinction drawn by Millett LJ in Bristol and West Building Society v Mothew [1998] Ch 1, 17, between the breach of a duty of skill and care within a fiduciary relationship and the breach of a duty which is fiduciary in nature.
+He accepted the view expressed by Tipping J in Bank of New Zealand v New Zealand Guardian Trust Co Ltd that, where there was a breach of a duty of care by a trustee which did not result in any loss to the trust fund, any liability in damages which might arise would be assessed by applying common law rules (para 77).
+On the other hand, where loss was caused by the fiduciary to trust property, strict rules on causation applied.
+Those were rules borrowed from those developed in relation to traditional trusts, requiring the trustee to restore to the trust fund what he had caused it to lose as a result of his breach of trust.
+In support of that restitutionary theory of equitable compensation, Ribeiro PJ cited Lord Browne Wilkinsons dictum in Target Holdings at p 434: If specific restitution of the trust property is not possible, then the liability of the trustee is to pay sufficient compensation to the trust estate to put it back to what it would have been had the breach not been committed.
+Causation was established on a but for basis, without the constraints of common law rules on remoteness and foreseeability.
+General conclusions 133.
+Notwithstanding some differences, there appears to be a broad measure of consensus across a number of common law jurisdictions that the correct general approach to the assessment of equitable compensation for breach of trust is that described by McLachlin J in Canson Enterprises and endorsed by Lord Browne Wilkinson in Target Holdings.
+In Canada itself, McLachin Js approach appears to have gained greater acceptance in the more recent case law, and it is common ground that equitable compensation and damages for tort or breach of contract may differ where different policy objectives are applicable. 134.
+Following that approach, which I have discussed more fully at paras 90 94, the model of equitable compensation, where trust property has been misapplied, is to require the trustee to restore the trust fund to the position it would have been in if the trustee had performed his obligation.
+If the trust has come to an end, the trustee can be ordered to compensate the beneficiary directly.
+In that situation the compensation is assessed on the same basis, since it is equivalent in substance to a distribution of the trust fund.
+If the trust fund has been diminished as a result of some other breach of trust, the same approach ordinarily applies, mutatis mutandis. 135.
+The measure of compensation should therefore normally be assessed at the date of trial, with the benefit of hindsight.
+The foreseeability of loss is generally irrelevant, but the loss must be caused by the breach of trust, in the sense that it must flow directly from it.
+Losses resulting from unreasonable behaviour on the part of the claimant will be adjudged to flow from that behaviour, and not from the breach.
+The requirement that the loss should flow directly from the breach is also the key to determining whether causation has been interrupted by the acts of third parties.
+The point is illustrated by the contrast between Caffrey v Darby, where the trustees neglect enabled a third party to default on payments due to the trust, and Canson Enterprises, where the wrongful conduct by the third parties occurred after the plaintiff had taken control of the property, and was unrelated to the defendants earlier breach of fiduciary duty. 136.
+It follows that the liability of a trustee for breach of trust, even where the trust arises in the context of a commercial transaction which is otherwise regulated by contract, is not generally the same as a liability in damages for tort or breach of contract.
+Of course, the aim of equitable compensation is to compensate: that is to say, to provide a monetary equivalent of what has been lost as a result of a breach of duty.
+At that level of generality, it has the same aim as most awards of damages for tort or breach of contract.
+Equally, since the concept of loss necessarily involves the concept of causation, and that concept in turn inevitably involves a consideration of the necessary connection between the breach of duty and a postulated consequence (and therefore of such questions as whether a consequence flows directly from the breach of duty, and whether loss should be attributed to the conduct of third parties, or to the conduct of the person to whom the duty was owed), there are some structural similarities between the assessment of equitable compensation and the assessment of common law damages. 137.
+Those structural similarities do not however entail that the relevant rules are identical: as in mathematics, isomorphism is not the same as equality.
+As courts around the world have accepted, a trust imposes different obligations from a contractual or tortious relationship, in the setting of a different kind of relationship.
+The law responds to those differences by allowing a measure of compensation for breach of trust causing loss to the trust fund which reflects the nature of the obligation breached and the relationship between the parties.
+In particular, as Lord Toulson explains at para 71, where a trust is part of the machinery for the performance of a contract, that fact will be relevant in considering what loss has been suffered by reason of a breach of the trust. 138.
+This does not mean that the law is clinging atavistically to differences which are explicable only in terms of the historical origin of the relevant rules.
+The classification of claims as arising in equity or at common law generally reflects the nature of the relationship between the parties and their respective rights and obligations, and is therefore of more than merely historical significance.
+As the case law on equitable compensation develops, however, the reasoning supporting the assessment of compensation can be seen more clearly to reflect an analysis of the characteristics of the particular obligation breached.
+This increase in transparency permits greater scope for developing rules which are coherent with those adopted in the common law.
+To the extent that the same underlying principles apply, the rules should be consistent.
+To the extent that the underlying principles are different, the rules should be understandably different.
+The present case 139.
+In the present case, AIB transmitted 3.3m to Redler for the purpose of discharging the Sondhis debt to Barclays, discharging the related charge which Barclays held over their property, paying the balance of the money to the Sondhis and obtaining a first charge over the property.
+If Redler had performed their trust, they would on completion have held a registrable first charge which secured a debt of 3.3m.
+In the event, on completion they held a second charge in respect of that debt; but Barclays continued to hold a first charge in respect of an undischarged debt of 309,000, and AIBs charge could not be registered because Barclays charge included a covenant against the registration of other charges.
+Following negotiations between AIB and Barclays, it was agreed during 2008 that AIBs charge could be registered and that Barclays priority would be limited to 273,777.42, with the consequence that AIBs interest was worth 273,777.42 less than it should have been.
+That proved to be the position in 2011, when the security was enforced and these proceedings were begun: the proceeds of sale were insufficient to meet the Sondhis liabilities to both Barclays and AIB, and in consequence AIB received 273,777.42 less than they would have done if Redler had fulfilled their instructions. 140.
+AIB argue that they are entitled to payment of the entire 3.3m, less the 867,697.78 which they received on the sale of the property, on the basis that Redlers liability for their breach of trust is unlimited by causation or remoteness.
+In my opinion that argument is based on three fallacies, each of which is fatal to AIBs claim.
+First, it assumes that Redler misapplied the entire 3.3m, whereas in my opinion all that was misapplied was the 309,000 which was paid to the Sondhis rather than Barclays.
+Since the Court of Appeals decision to the contrary was not challenged, however, it is necessary to consider the appeal on the basis on which it was argued by both parties, namely that the breach of trust involved the misapplication of the entire 3.3m.
+On that premise, the appeal fails because it rests on the remaining fallacies.
+The second fallacy in AIBs argument is that it assumes that the measure of Redlers liability was fixed as at the date of the breach of trust: a proposition which was rejected in Target Holdings and in the Commonwealth authorities which I have cited.
+The third fallacy is that the argument assumes that liability does not depend on a causal link between the breach of trust and the loss: Redler is sought to be made liable for the consequences of the hopeless inadequacy of the security accepted by AIB before Redlers involvement, despite the fact that Redlers breach of trust did not affect that security except to the extent, initially, of 309,000, and finally of 273,777.42.
+That proposition also was rejected in Target Holdings and in the Commonwealth cases. 141.
+In these circumstances, applying the approach to the assessment of equitable compensation which I have explained, it appears to me that the loss to the trust estate as a result of Redlers breach of trust proved to be 273,777.42: that amount proved to be the pecuniary value of the difference between a first ranking security and one which was postponed to Barclays.
+That was also the loss to AIB, who were absolutely entitled to the trust estate.
+The trust no longer being on foot, the appropriate order is for Redler to pay AIB 273,777.42 plus interest from 2011. 142.
+Since AIB have already been awarded 273,777.42 plus interest against Redler (and no issue being raised in relation to the interest), it follows that they are not entitled to anything more.
+Their appeal should therefore be dismissed.
+LORD NEUBERGER, LADY HALE AND LORD WILSON 143.
+We agree that this appeal should be dismissed for the reasons given by Lord Toulson and Lord Reed.
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+Indirect taxes have always posed particular problems of enforcement, which account for the wide powers of investigation and seizure conferred by statute on the Commissioners charged with their collection.
+The exercise of these powers has given rise to dispute ever since Johnsons Dictionary offered its famous definition of excise in 1755 (a hateful tax, levied by wretches), and its author was threatened by the Commissioners with a libel action.
+The powers of the Commissioners of Customs and Excise were originally contained in a large number of enactments dealing with different aspects of an exceedingly complex legal scheme.
+The first modern consolidation was the Customs and Excise Act 1952 (the 1952 Act).
+The system is currently administered by Her Majestys Commissioners of Revenue and Customs under the Customs and Excise Management Act 1979 (the 1979 Act), which re enacts much of the 1952 Act, with substantial amendments.
+Some significant amendments have been made to the Act by the Finance Act 2013, but these were not in force at the relevant times, and we therefore refer throughout this judgment to the Act as it stood before they were made.
+These two appeals are about the circumstances and the manner in which customs officers are empowered to detain goods on which duty has not been paid, or may not have been paid.
+The Eastenders appeal
+In the Eastenders appeal, customs officers entered Eastenders warehouses and inspected consignments of alcoholic goods found there.
+They were acting under section 118C(2) of the 1979 Act, which authorises customs officers to enter and inspect business premises which they have reasonable cause to believe are being used in connection with the supply, importation or exportation of goods chargeable with excise duty and to inspect any goods found there.
+Section 118C(2) was repealed by the Finance (No 3) Act 2010 and replaced by other provisions, but we refer to the Act as it stood at the material time.
+Under section 118B, the officers may also require the production of documents.
+Eastenders employees were unable to provide documentary evidence, such as purchase invoices, demonstrating that duty had been paid on the goods.
+Inspection of such documents as were produced indicated that duty might not have been paid.
+The officers decided to detain the goods pending the outcome of further enquiries into the question whether the appropriate duties had been paid: in particular, enquiries into the supply chains relating to the goods.
+The goods remained on Eastenders premises pending the outcome of those enquiries but were subject to a direction given under section 139(5) of the 1979 Act, in terms of which the Commissioners can direct the manner in which any thing detained under the customs and excise Acts must be dealt with pending the determination as to its forfeiture or disposal.
+In subsequent correspondence, the Commissioners stated that the goods had been detained under section 139, subsection (1) of which empowers the Commissioners or their officers to seize or detain any thing liable to forfeiture under the customs and excise Acts.
+By virtue of section 49, things liable to forfeiture include any dutiable goods imported without payment of duty.
+Following their enquiries, the Commissioners seized most of the detained goods and returned the remainder.
+All of the seized goods were subsequently condemned as forfeited, and no issue arises about those.
+The present appeal relates to the goods which were detained but were subsequently returned, the officers enquiries having proved inconclusive.
+Eastenders applied, as the owners of the goods in question, for judicial review of the decision to detain them.
+The judge, Sales J, found that the officers had reasonable grounds to suspect that duty had not been paid on the goods that were detained.
+It was also found that the detention of the goods had not exceeded a reasonable period of time.
+Those findings were not challenged on appeal.
+In these circumstances, Sales J held that the Commissioners had acted lawfully in detaining the goods, on the basis that they had the power to detain goods for a reasonable time, pending enquiries as to whether duty had been paid, where they had reasonable grounds to suspect that the goods might be liable to forfeiture.
+Sales J considered that that power was conferred by section 139(1) of the 1979 Act.
+No other possible source of the power had been suggested.
+The application for judicial review was therefore dismissed: [2010] EWHC 2797 (Admin); [2011] 1 WLR 488.
+The Court of Appeal by a majority (Elias and Davis LJJ, Mummery LJ dissenting) reversed that decision.
+They held that section 139(1) applied only where goods were actually liable to forfeiture, and it had not been established that the goods in question were so liable.
+A declaration was accordingly granted that the goods not liable to forfeiture were unlawfully detained: [2012] EWCA Civ 15; [2012] 1 WLR 2067.
+There was again no contention that the power to detain goods on suspicion might be derived from any source other than section 139(1).
+It was subsequently decided that Eastenders could not be awarded costs, by reason of section 144(2) of the 1979 Act, which provides, in substance, that where a court holds that a seizure or detention was unlawful, no award of damages or costs may be made against the Commissioners if the court is satisfied that they acted on reasonable grounds: [2012] EWCA Civ 689; [2012] 1 WLR 2912.
+The Commissioners appeal to this court against the first decision.
+Eastenders were refused permission to appeal against the second decision.
+The point in relation to costs has however been argued in the First Stop appeal, as we shall explain, and whatever we decide about it must necessarily apply in both appeals.
+The First Stop appeal
+In the First Stop appeal, customs officers entered a warehouse and retail
+premises used by First Stop.
+They were acting under section 112(1) of the 1979 Act, which authorises customs officers to enter the premises of revenue traders as defined in section 1 of the Act (in substance, persons who deal in goods liable to excise duty) and to search for and examine any goods or materials connected with that trade.
+Under section 112A, inserted by the Finance (No 3) Act 2010, that power includes the power to examine documents.
+At the retail premises, the officers seized a small quantity of spirits on the ground that the duty paid stamps on them were defective.
+They also detained a much larger quantity of alcoholic drinks, whose provenance was unclear, while enquiries were made into the question whether duty had been paid.
+One of the directors of First Stop was informed by an officer that the goods were being detained pending further enquiries into their duty status.
+Written notices were provided stating that the goods had been detained pending evidence of duty status (CEMA 1979, section 139).
+Most of the detained goods were subsequently seized.
+The remainder were returned to First Stop.
+Condemnation proceedings in respect of the seized goods remained pending at the time of the hearing of these appeals.
+First Stop were granted permission to apply for judicial review of the detention of those goods which were still detained, pending the outcome of enquiries, about four months after their initial detention.
+By the time the application was heard, all of those goods had been seized.
+The application came before Singh J after the decision of the Court of Appeal in Eastenders.
+The judge gave a total of three judgments on different issues which arose from the application.
+In the first, he held that the detention of the goods had been unlawful, since the reason given for the detention was the need for investigation, and it followed in his view from the decision of the Court of Appeal in Eastenders that goods could not lawfully be detained under section 139(1) of the 1979 Act for that purpose.
+That was so even if the goods might subsequently be found to be liable to forfeiture: in his view, goods could not lawfully be detained under section 139(1) for the purpose of ascertaining whether the power to detain them had been conferred by that provision: [2012] EWHC 1106 (Admin).
+In a second judgment, Singh J held that section 144(2) did not protect the Commissioners against an award of costs, on the basis that the reason given for detaining the goods, being unlawful, could not amount to reasonable grounds within the meaning of that provision: [2012] EWHC 2191 (Admin).
+In his third judgment, Singh J was concerned with the seizure notices.
+The question was whether a statement in the notices that no evidence of UK duty payment has been provided was a sufficient statement of the grounds for seizing the goods as liable to forfeiture.
+The judge held that it was: [2012] EWHC 2975 (Admin).
+All three judgments were appealed to the Court of Appeal.
+They allowed the Commissioners appeal against the first two judgments.
+Beatson LJ, in a judgment with which Lewison and Jackson LJJ agreed, accepted that the judges view that the power to detain under section 139(1) must not only exist, but must be exercised for the purpose intended by Parliament, gained powerful support from general principles of public law, but concluded that it was inconsistent with the judgments of the majority of the court in the first judgment in the Eastenders case.
+The court also considered that it followed from the first judgment in the Eastenders case that there was no duty to give reasons for the detention of goods under section 139(1).
+In their view, the effect of the Eastenders decision was that if the goods were in fact liable to forfeiture, detention for a reasonable time was lawful under section 139(1) irrespective of any reason that might have been given.
+The appeal against Singh Js second judgment, relating to section 144(2), was allowed on the ground that the judges decision was inconsistent with the decision of the Court of Appeal in its second judgment in the Eastenders case: [2013] EWCA Civ 183.
+First Stop appeal to this court against both decisions.
+The Court of Appeal upheld Singh Js third judgment, and no appeal on the adequacy of the notice of seizure is before us.
+It follows that in this case, as in Eastenders, we are directly concerned only with the power of detention.
+The statutory scheme
+We have referred to the provisions of the 1979 Act that were central to the judgments below, namely sections 139(1) and 144(2).
+Before considering the effect of these provisions, it is necessary to say something more about them, and about the broader statutory scheme of which they are part.
+The 1979 Act confers extensive powers on the Commissioners.
+These include the express power to examine goods and documents relating to goods, or to require information about them.
+This power is conferred by many provisions of the 1979 Act, the relevant provision depending on the location of the goods and sometimes their type.
+In particular, section 112(1) confers on customs officers a power to enter the premises of revenue traders, such as First Stop, and to inspect the premises and search for, examine and take account of any goods or materials belonging to or in any way connected with that trade.
+By virtue of section 112A, the power conferred by section 112 includes power to inspect any business documents that are on the premises.
+Section 118C(2) applies where an officer has reasonable cause to believe that any premises are used in connection with the supply, importation or exportation of dutiable goods and that such goods are on the premises.
+It confers on the officer the power, exercised in the Eastenders case, to enter and inspect the premises and inspect any goods found on them.
+A number of the powers conferred by the 1979 Act are expressly exercisable when the relevant officer has reasonable grounds for believing or suspecting something.
+Section 118C(2) is an example.
+There are many others.
+Thus under section 84, which is concerned with unlawful signals to smugglers, an officer may board a ship, aircraft or vehicle or enter a place from which he has reasonable grounds for suspecting that a signal is being or is about to be sent; under section 113, officers are empowered to break open premises where they have reasonable grounds to suspect that secret pipes or other conveyances are being used for goods subject to excise duty; under section 138, a person may be detained if there are reasonable grounds to suspect that he has committed [an] offence under the customs and excise Acts; under section 161, an officer may enter and search any place where there are reasonable grounds to suspect that property liable to forfeiture is being kept or concealed; and under sections 163 and 164 there are corresponding powers to stop and search vehicles, vessels or persons suspected of being involved in breaches of the customs and excise legislation.
+The 1979 Act contains many sections providing for the forfeiture of property, including property whose importation is prohibited, property in respect of which duty has been evaded, or property (such as vehicles or vessels) which have been used for the purpose of infringements of various kinds.
+For present purposes, the relevant power of forfeiture is conferred by section 49, which can be treated as the paradigm case.
+It provides, among other things, that goods chargeable upon their importation with customs or excise duty which are imported without payment of that duty shall, subject to specified exceptions, be liable to forfeiture.
+Section 139 of the 1979 Act contains provisions relating to the detention and seizure of goods.
+Section 139(1) provides: Any thing liable to forfeiture under the customs and excise Acts may be seized or detained by any officer or constable or any member of Her Majestys armed forces or coastguard.
+It can be seen that section 139(1) confers two distinct powers on the Commissioners, a power of seizure and a power of detention.
+Neither power is expressly said to be exercisable on the basis of reasonable grounds for suspicion or belief.
+In this respect they differ from some of the other powers to which we have referred.
+The effect of seizure is apparent from other provisions of the 1979 Act.
+It is the first stage of a statutory process leading to forfeiture.
+The process is governed by Schedule 3, to which effect is given by section 139(6).
+Paragraph 1 of Schedule 3 requires the Commissioners to give notice of the seizure of any thing as liable to forfeiture, and of the grounds for it, except in cases governed by paragraph 2.
+The exceptional cases are broadly speaking those in which the seizure was carried out in the presence of the relevant interested party.
+Under paragraph 3, the owner of the goods has one month from the date of the notice (or the date of seizure in a case within paragraph 2) in which to serve a notice claiming that anything seized as liable to forfeiture is not so liable.
+If no notice is served within that period, then the seized goods are deemed to have been duly condemned as forfeited (paragraph 5).
+If, on the other hand, a notice is served, the Commissioners must take proceedings for condemnation in the High Court or a magistrates court, and if the court finds that the thing was at the time of seizure liable to forfeiture the court shall condemn it as forfeited (paragraph 6).
+If the court holds that the goods were not liable to forfeiture, paragraph 17 provides for the Commissioners to tender to the owner a sum representing their value.
+The owner may then accept the tender, in which case he shall not be entitled to maintain any action on account of the seizure, detention, sale or destruction of the thing.
+Or he may reject it, in which case the assumption is that such a right of action will remain available.
+There are no corresponding provisions relating to the power to detain goods.
+Indeed, until the Act was amended in 2013, it contained no provisions at all dealing with the procedure for detaining property or its consequences.
+There can, however, be little doubt about what detention involved, even before the amendment.
+Detention is a temporary assertion of control over the goods, which does not necessarily involve any seizure with a view to ultimate forfeiture.
+What is the purpose of detaining goods without seizing them? The obvious answer is to enable the goods to be examined, or secured pending investigations which might lead to their seizure later.
+This was the view of the Court of Common Pleas in Jacobsohn v Blake and Compton (1844) 6 Man. & G 919; 13 LJ CP 89, a case to which we shall return, and of the majority of the Court of Appeal in Gora v Customs and Excise Commissioners [2003] EWCA Civ 525; [2004] QB 93.
+In his judgment in the Eastenders case, at para 30, Sales J said this: It does not require much imagination to see that there may be many cases in which there is uncertainty when HMRC officers inspect goods whether duty has been paid on them or not, and to see that in such cases the effective and fair implementation of the relevant tax and its associated enforcement regime will require that goods are held for a period while investigations are carried out in an effort to remove that uncertainty.
+In general (and without seeking to level criticism against the claimants in the present cases), Parliament cannot have intended that an owner of goods should be able, just by obfuscating and creating uncertainty at the point of inspection in relation to his supply chain and whether duty has or has not been paid, to avoid the full rigour of the machinery for the enforcement of payment of taxes, including by forfeiture of goods on which duty has not been paid.
+We agree.
+We have already pointed out that neither the power of seizure nor the power of detention conferred by section 139(1) is expressly said to be exercisable on the basis of reasonable grounds for suspicion or belief.
+However, the reasonableness of the exercise of those powers does come into it by virtue of section 144, which provides: 144.(1) Where, in any proceedings for the condemnation of any thing seized as liable to forfeiture under the customs and excise Acts, judgment is given for the claimant, the court may, if it sees fit, certify that there were reasonable grounds for the seizure. (2) Where any proceedings, whether civil or criminal, are brought against the Commissioners, a law officer of the Crown or any person authorised by or under the Customs and Excise Acts 1979 to seize or detain any thing liable to forfeiture under the customs and excise Acts on account of the seizure or detention of any thing, and judgment is given for the plaintiff or prosecutor, then if either (a) a certificate relating to the seizure has been granted under subsection(1) above; or (b) the court is satisfied that there were reasonable grounds for seizing or detaining that thing under the customs and excise Acts, the plaintiff or prosecutor shall not be entitled to recover any damages or costs and the defendant shall not be liable to any punishment.
+Where an officer detains property under section 139(1) because he reasonably considers that it is liable to forfeiture, section 144(2) assumes that that he may be liable if he turns out to be wrong about that, but protects him against an order for financial relief.
+Liable to forfeiture
+The first question on these appeals concerns the condition for the exercise of the power of seizure or detention under section 139(1), that the property should be liable to forfeiture.
+Does this mean that it must actually be liable to forfeiture? Or is it enough that the relevant officer believed or suspected that it was liable to forfeiture? Or that he wished to investigate whether it was or not?
+We consider that the answer to this is straightforward.
+The right to seize or detain property under section 139(1) is dependent on that property actually being liable to forfeiture under one of the various forfeiture provisions of the Act.
+This turns on the objectively ascertained facts, and not on the beliefs or suspicions of the Commissioners or their officers, however reasonable.
+Our reasons are as follows: (1) Throughout the 1979 Act, the draftsman has said in terms when statutory powers may be exercised on the basis of suspicion or belief rather than objective fact.
+A particularly striking example is section 138, which is the power corresponding to section 139 relating to the detention of persons who are liable to be detained under the Customs and Excise Acts.
+The power of detention is exercisable if there are reasonable grounds to suspect that the person has committed an offence.
+The omission of any such language from section 139 must have been deliberate. (2) The expression liable to forfeiture is used in no less than thirty sections of the 1979 Act.
+It would be wearisome to go through them all to make exactly the same point, which is that they are almost all sections providing that property is liable to forfeiture in defined circumstances, or in some cases providing that it is not to be liable to forfeiture in defined circumstances when it otherwise would be.
+In these sections, the words can only refer to actual liability to forfeiture.
+In all of the other sections in which the expression is used, with the possible exception of sections 139(1) and 144(2), it is equally clear that the reference is to an actual liability to forfeiture. (3) In section 139(1) it is a precondition for both seizure and detention that the goods should be liable to forfeiture.
+There is no difference in the way that the precondition applies to the two measures.
+In relation to seizure, the expression must mean actually liable to forfeiture, since seizure puts in train the procedural provisions of Schedule 3, which is wholly concerned with the condemnation of property as forfeit.
+On the face of it, therefore, the expression must mean the same when applied to detention.
+The same point can be made about the use of the expression in relation to both seizure and detention in section 144(2). (4) More generally, if liable to forfeiture does not mean actually liable to forfeiture, it is difficult to discern what it can sensibly be thought to mean.
+The Commissioners submission is that it refers to goods of a kind legally capable of being forfeited.
+This would mean that all dutiable goods were liable to forfeiture.
+While that is a linguistically possible meaning of the words, it is hardly the natural one.
+Its adoption would have the effect of conferring on customs officers a power to detain any goods which were in law dutiable, subject to no restrictions whatever other than those arising from the general principles of public law.
+So far as the 1979 Act is concerned, it would not even be necessary for the Commissioners to show that there were reasonable grounds for suspicion or belief. (5) Section 144(2), as we have pointed out, assumes that where property has been detained which turns out not to be actually liable to forfeiture, the Commissioners or their officers may be held liable in an action in tort.
+It confers an immunity in that event from an award of damages and costs if they acted reasonably.
+If the Commissioners or their officers were entitled to detain goods under section 139(1) on reasonable suspicion, the situation envisaged in this provision could not arise.
+The action would fail on liability and no immunity from damages and costs would be required.
+Some difficulties
+This interpretation of section 139(1), although in our opinion correct, would nevertheless have troubling implications if the Commissioners and their officers had no other power to detain goods.
+The resultant difficulties include the following: (1) As we have explained, and as Sales J recognised in the passage which we have cited, it is obviously essential to the effective implementation of the laws governing customs and excise that customs officers should be able to detain goods so as to enable them to be examined and secured pending investigations which might lead to their subsequent seizure.
+Sales J at first instance and Mummery LJ in the Court of Appeal inferred from that practical necessity (i) that Parliament must have intended that customs officers should have the power to detain goods where they reasonably suspect that the goods may be liable to forfeiture and require to make further inquiries, and (ii) that Parliament must therefore have intended section 139(1) to be construed as conferring such a power.
+The second proposition must be rejected; but the argument in support of the first proposition remains a powerful one. (2) On the hypothesis that the only power of detention is that conferred by section 139(1), and if that provision is interpreted as we consider it must be, it follows that the detention of goods is unlawful whenever the goods are not in fact liable to forfeiture.
+If that is so, then the detention of goods on the basis of suspicion is unlawful in all cases where the suspicion turns out to be unfounded.
+In the nature of things, that will be the position in a proportion of cases, even where reasonable grounds for suspicion exist.
+The customs officers may then be liable in damages for their interference with rights of property unless they can bring themselves within the scope of section 144(2).
+Even where section 144(2) applies, it only protects the officers against financial relief. (3) A further difficulty with an approach based upon an acceptance that customs officers will behave unlawfully, but will be protected from liability by section 144(2), concerns its compatibility with EU law and the Human Rights Act 1998.
+Under EU law, the detention of goods by customs officers may require to be justifiable as an interference with the free movement of goods: something which would scarcely be possible if the interference was unauthorised by law, or if that law failed to comply with the EU principle of legal certainty. (4) In relation to the Human Rights Act, the detention of goods by customs officers is an interference with the peaceful enjoyment of possessions within the meaning of article 1 of Protocol No 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms: see for example Islamic Republic of Iran Shipping Lines v Turkey (2007) 47 EHRR 573.
+As such, it must be in accordance with law, and must therefore be authorised by domestic law.
+Furthermore, the domestic law must meet the requirement of legal certainty.
+If customs officers are not authorised to detain goods which are not actually liable to forfeiture, or to detain goods for the purpose of investigation into whether they are liable to forfeiture, it follows that their doing so is unlawful by virtue of the Human Rights Act as well as under the common law. (5) The proposition that the only power of detention possessed by customs officers is that conferred by section 139(1) also raises a further difficulty.
+As we shall explain, there was no statutory provision in respect of detention, corresponding to section 139(1), until 1952.
+Can it possibly have been the position, prior to 1952, that the Commissioners and their officers had no power to secure goods, where there were reasonable grounds to suspect that they were liable to forfeiture and investigations had to be carried out, other than by pre empting the outcome of such investigations by seizing the goods and setting condemnation proceedings in train, at the risk of behaving unlawfully and incurring a liability in damages? As we have explained, the contrary was the view of the Court of Common Pleas in Jacobsohn v Blake and Compton.
+In view of these difficulties, it appears to us to be necessary to consider the
+legislative background, and some relevant authorities, in greater detail.
+The background to the 1979 Act
+Statutory regimes providing for the appointment of customs officers and vesting them with powers have existed for centuries.
+A thoroughgoing reform of the statute book was carried out in 1825, when almost all the statutes regulating the administration of customs and excise which were then in force, going back to the reign of Richard II, were repealed by the Act 6 Geo IV c 105, and new provisions were enacted in their place by several Acts, including the Acts 6 Geo IV c 107 and c 108.
+A further consolidation took place in 1833, when the 1825 legislation was repealed and replaced by a number of Acts, including the Acts 3 and 4 Will IV c 52 (An Act for the General Regulation of the Customs) and c 53 (An Act for the Prevention of Smuggling).
+This legislation, like that of 1825, made provision for the detention of persons: see the Act 3 and 4 Will IV c 53, sections 48 53.
+It also made provision for the seizure of goods which were liable to forfeiture: see the Act 3 and 4 Will IV c 53, section 32, which is a predecessor of section 139(1) of the 1979 Act.
+Provision was also made in respect of proceedings brought by the owners of goods which had been seized.
+In particular, the defendant was protected from liability in damages or costs if there had been probable cause for the seizure: see the Act 3 and 4 Will IV c 53, section 102, which is a predecessor of section 144(2) of the 1979 Act.
+The only statutory reference to the detention of goods at that time was made in a different context.
+The Act 3 and 4 Will IV c 52 required importers of goods to deliver a bill of entry of the goods, containing specified information about them.
+Goods which were not properly described in the bill were forfeited: section 20.
+Where the duty payable depended on the value of the goods, that also had to be stated.
+Section 22 provided that if upon examination it shall appear to the officers of the customs that such goods are not valued according to the true value thereof, it shall be lawful for such officers to detain and secure such goods, and to take such goods for the use of the Crown, the importer being paid compensation based upon his own valuation.
+Section 133 distinguished between goods being seized as forfeited, or detained as under valued.
+Then as now, the legislation conferred extensive powers upon customs officers, including a plethora of powers of entry, search and examination.
+The 1833 legislation was in force at the time of the case of Jacobsohn v Blake and Compton (1844) 6 Man & G 919; 13 LJ CP 89, which is one of the few reported decisions in this area of the law, and the only one which contains a detailed consideration of the relevant principles.
+The case was brought by the owner of a consignment of cutlery against two customs officers.
+The officers had examined the goods when they were landed in order to determine the duty payable (the precise statutory power under which they did so is not stated in the report: there are a number of possibilities), and had then decided to detain them, because of a suspicion that they contravened a statutory prohibition on the importation of cutlery of foreign manufacture bearing the names of British manufacturers resident in the United Kingdom, and were therefore liable to forfeiture.
+The officers refused to release the goods until the matter had been considered by the Commissioners.
+After a period of about five months, the Commissioners agreed to release the goods on payment of the duty, and the goods were duly released.
+An action for damages was then brought, on the basis that the detention had been unlawful.
+There was no express statutory basis for the detention of the goods, since they were not detained as under valued.
+The jury was directed to return a verdict for the defendants, and that direction was upheld by the Court of Common Pleas.
+Tindal CJ is reported at pp 925 926 of Manning and Grangers report as stating: [T]he defendants merely took possession of the goods, in the execution of their duty as custom house officers, for the purpose of examination.
+When the goods were examined certain marks were found upon them, which induced the defendants to think they were prohibited; and they said they must detain them; and then, on a subsequent application on the part of the plaintiff for the delivery of the goods, the answer was that they were detained and would be prosecuted as seizures.
+It appears, therefore, that the defendants originally detained the goods under a real and honest doubt that they were subject to forfeiture: whether that doubt was well grounded, is not now the question.
+There has been no abuse of authority on their part.
+The goods remained, during the whole time of the examination, in the same custody in which they were, in the first instance, legally detained.
+The latter part of that passage is reported slightly differently in the Law Journal report at p 90: There has been no abuse of the process which the defendants had to execute, and things remain in the same position during the whole time the goods were under examination.
+The implication, in both reports of the judgment, is that the process of examination was not completed until the necessary enquiries had been carried out.
+His Lordship left open the question whether an action might have been brought if the goods had been detained for an unreasonable time.
+The other judgments similarly emphasized that the officers had been acting within their authority.
+Coltman J stated at p 926: The defendants were custom house officers acting under an authority given them by law.
+It was their duty to examine the goods in question, in order to ascertain to what duty they were liable, or whether or not they were subject to forfeiture.
+If the goods had been afterwards detained by them for a time more than reasonable for the examination, that might have been an abuse of their authority so as to render them liable in another form of action.
+But it appears to me there is no ground for saying they did more than detain the goods for a reasonable time, in order that the question as to the liability of the goods to forfeiture might be submitted to the proper authorities. (In relation to the second sentence in that passage, Coltman J is reported in the Law Journal report as saying that the officers were acting under an authority given them by law to examine the goods to see whether they were liable to duty, and that I think they had also a right to examine them, to see whether they were liable to forfeiture or not).
+Cresswell Js judgment at pp 927 928 was to the same effect: The goods were taken by the plaintiff's agent to the proper place for the examination of them by the defendants in the regular discharge of their duty as custom house officers.
+Upon their examination, all that the defendants did was, to detain them, till it could be ascertained whether or not they were liable to forfeiture.
+Here, there was no act of trespass, either actually, or impliedly from any subsequent abuse of authority.
+In the present appeals, it was argued on behalf of Eastenders and First Stop that the ratio of the Jacobsohn case was confined to the situation where imported goods had been taken to a customs warehouse: the officers were entitled to decline to allow the goods to leave the warehouse until the appropriate duty had been paid.
+So understood, it was argued, the case had no application to cases such as the present appeals, where goods which were inside the country might be liable to forfeiture.
+The argument that the plaintiff could not insist upon the delivery of imported goods from a customs warehouse, so long as the duty remained unpaid, was indeed one of the arguments advanced on behalf of the officers at the trial of the case, but it does not appear to have been argued on appeal, and only the judgment of Erskine J at p 927 adverts to the point: The goods were landed and taken possession of by the defendants in the discharge of their duty, for the purpose of their being examined.
+Upon their being partially examined there appeared to be sufficient ground for the defendants to doubt whether they were authorised to receive the duty upon them.
+All that the defendants did was merely to decline to receive the duty upon them.
+The subsequent declaration made by them was not a declaration that what they had done amounted to a seizure, but merely a statement that, the matter being under the consideration of the commissioners, the goods could not be given up to the plaintiff.
+Erskine Js reference to the goods being partially examined, prior to the making of enquiries of the Commissioners, is consistent with the approach adopted in the other judgments.
+In any event, in the light of the other judgments, the ratio of the decision cannot be said to have been based on the non payment of duty on imported goods.
+In a related submission, it was argued on behalf of Eastenders and First Stop that the decision in Jacobsohn was based on a technical aspect of the law of trespass: since the officers had lawful possession of the goods initially for the purpose of examination, their subsequent detention of the goods did not involve any transfer of possession, and therefore could not amount to trespass.
+This argument also was advanced on behalf of the officers at the trial of the case, but it was not accepted.
+The court recognised that possession which was initially lawful might be rendered unlawful by an abuse of the authority under which possession had been taken, following the Six Carpenters Case (1610) 8 Co Rep 146.
+Hence the emphasis laid in the judgments upon the absence of any abuse of authority: as Cresswell J said, there was no trespass, either actually, or impliedly from any subsequent abuse of authority.
+As is clear from the passages in the judgments which we have cited, the majority of the court accepted that the detention of the goods was lawful because there had been no abuse of authority on the part of the officers; and there had been no such abuse because their authority to examine the goods in order to determine the duty payable, or (by implication) whether the goods were liable to forfeiture, carried with it, by necessary implication, an authority to detain the goods for such time as was reasonably necessary in order to make that determination.
+Where the determination required the making of enquiries, going beyond an inspection of the goods themselves, it was lawful to detain the goods for such time as was reasonably necessary to make those enquiries.
+The practical importance, and good sense, of the approach adopted in the Jacobsohn case to the scope of an examination of goods can be illustrated both by the facts of that case and by the facts of the present appeals.
+In that case, as we have explained, the statutory prohibition was on the importation of cutlery of foreign manufacture bearing the names or marks of British manufacturers resident in the United Kingdom.
+Some of the cutlery in question was impressed with the words Watson, Barbican, Norton Folgate, and some with the words Daniel Lutter, extra patent silver steel.
+A visual examination alone could not enable the officers to know where the cutlery had been manufactured, or whether Watson and Lutter were British manufacturers resident in the United Kingdom.
+In the present appeals, as counsel for Eastenders submitted, the question whether beer or wine is liable to forfeiture as not duty paid will not be resolved by gazing at the goods, for whatever length of time.
+It will only be resolved by examining the paper trail back to the point of duty payment.
+As we have explained, the power of detention which was held to exist in Jacobsohn was not expressly conferred by the customs and excise legislation, but arose by necessary implication from the officers statutory power to examine goods for the purpose of determining the duty payable or whether they were liable to forfeiture.
+It was not conditional upon the goods being liable to forfeiture: as Tindal CJ observed, whether the officers suspicions were well grounded was not the question.
+It was sufficient, in order for the power of detention to be lawfully exercised, that the officers should have, in the words of Tindal CJ, a real and honest doubt that the goods were liable to forfeiture.
+The protection from liability in damages or costs which was conferred on customs officers where goods had been mistakenly seized as liable to forfeiture had nothing to do with such detention, and did not feature in the case: since the detention of the cutlery was impliedly authorised by statute, it could not constitute a tort.
+The approach adopted in the case of Jacobsohn is consistent with the approach to a statutory power of examination which was taken more recently in the case of R v Secretary of State for the Home Department, Ex p Labiche [1991] Imm AR 263, a decision of the Court of Appeal concerned with immigration.
+The immigration legislation gave immigration officers the power to examine any person entering the United Kingdom, and required that a person examined by an immigration officer should be given notice, granting or refusing leave to enter the United Kingdom, not later than 12 hours after the conclusion of his examination.
+The appellant had been given a notice refusing leave more than 12 hours after being interviewed by an immigration officer, and argued that the notice was out of time.
+The Court of Appeal disagreed.
+Fox LJ, with whom Butler Sloss LJ and Sir Roualeyn Cumming Bruce agreed, said at p 268 that the examination cannot terminate until (a) necessary inquiries by the immigration officer or the Secretary of State have been completed and (b) the immigration officer has received the directions of the Secretary of State.
+The approach adopted to the concept of examination in this context was the same, mutatis mutandis, as that adopted in Jacobsohn.
+It is also relevant to note the earlier customs case of Irving v Wilson (1791) 4 Durn & E 485.
+That action was brought in the Court of Kings Bench for the recovery of money had and received by customs officers.
+The officers had stopped a cart containing goods which required a permit, without which they were liable to forfeiture.
+The carrier did not have a permit, but told the officers that the goods formed part of a larger consignment, and that a permit for the entire consignment was with the remainder of the consignment, some miles behind.
+The officers waited some time, but the remainder of the consignment did not appear.
+The officers then seized the goods.
+When the remainder of the consignment eventually arrived, and the permit was produced, those goods also were seized.
+The officers then refused to restore the goods until a payment had been made by the owner.
+He succeeded in his action for the recovery of the payment.
+The significance of the case in the present context arises not from that decision, but from some of the observations made.
+Ashurst J noted at p 486 that the goods were not liable to seizure, but also stated at pp 486 487 that the defendants acted right in stopping the goods at first; but when the permit came up, there was no pretence to detain them.
+The implication appears to be that it was lawful to detain the goods while there were reasonable grounds for suspecting that they might be liable to forfeiture.
+Lord Kenyon CJ similarly distinguished at p 486 between the initial detention and the subsequent seizure, stating that whatever ground of probability there was for stopping the first cart, yet after the matter was cleared up, there was no pretence for making a seizure.
+Returning to the history of the legislation, following the 1833 consolidation a further consolidation took place in 1845, when generally similar provision was made by the Act 8 and 9 Vict c 86 and the Act 8 and 9 Vict c 87.
+The next consolidation, in the Customs Consolidation Act 1853, amalgamated in a single Act the provisions formerly contained in separate statutes dealing with the regulation of customs and the prevention of smuggling.
+It also amalgamated, in section 223, the previously separate provisions in respect of the seizure of goods liable to forfeiture, on the one hand, and the detention of suspected offenders, on the other hand.
+The consequence was that a reference to detention appeared for the first time in a provision dealing with the seizure of goods.
+Generally similar provisions were contained in the next consolidation statute, namely the Customs Consolidation Act 1876.
+Section 202 again dealt in a single provision with the seizure of goods liable to forfeiture and the detention of persons.
+The provisions dealing with legal proceedings were drafted, as previously, on the basis that claims would be brought by the owners of goods which had been seized as liable to forfeiture; and section 267, protecting officers from liability, applied only where the goods had been seized.
+The final consolidation prior to the 1979 Act was effected by the Customs and Excise Act 1952.
+Like the earlier legislation, the 1952 Act conferred on customs officers extensive powers of investigation.
+The Act reverted to the separate treatment of the detention of persons, in section 274, and the seizure of goods, in section 275.
+Section 275(1) however retained the reference to detention which had appeared in section 223 of the 1853 Act and section 202 of the 1876 Act, and provided in subsection (1) that any thing liable to forfeiture under the customs or excise Acts may be seized or detained by any officer or constable or any member of Her Majestys armed forces or coastguard.
+That provision is almost identical to section 139(1) of the 1979 Act.
+The 1952 Act also extended the scope of the protection from liability given to customs officers, by providing in section 280(2) that there should be no civil or criminal liability on account of the seizure or detention of any thing liable to forfeiture if the court were satisfied that there were reasonable grounds for seizing or detaining that thing.
+That provision is almost identical to section 144(2) of the 1979 Act.
+The effect of section 275(1) of the 1952 Act was to create an express statutory power to detain goods which were liable to forfeiture.
+Such a power is clearly distinct from the power to detain as part of the process of examination, and has a different purpose and different legal consequences.
+It was and is available only where goods are liable to forfeiture, whereas the power of detention discussed in the case of Jacobsohn is available where there are reasonable grounds for suspecting that goods are so liable.
+The power of detention conferred by section 275(1) of the 1952 Act, and now contained in section 139(1) of the 1979 Act, is an alternative to the seizure of the goods in question, but differs from seizure in that it is temporary in nature and does not trigger the commencement of proceedings for the condemnation of the goods.
+As Elias LJ suggested in the Eastenders case, there could be circumstances in which goods were considered to be liable to forfeiture but in which the Commissioners might not wish to embark at once upon a procedure leading to the condemnation of the goods, for example where the breach of the law was capable of correction.
+Detention under section 139(1), unlike detention for the purpose of investigation, would require, and would attract, the protection afforded by section 144(2).
+The important question for present purposes is whether, when Parliament created the power to detain goods liable to forfeiture, it by implication abolished the power of detention which had previously been held to arise by necessary implication from statutory powers of examination.
+In our view no such implication follows, for several reasons. (1) Temporally, the powers are distinct: the process of examination precedes the reaching of a conclusion whether goods are liable to forfeiture.
+In terms of purpose, the powers are equally distinct.
+The purpose for which the power to detain, as an incident of examination, may be exercised is to enable the officers to retain control over the goods temporarily until they have arrived at a conclusion as to the duty payable or as to whether the goods are liable to forfeiture.
+The purpose for which goods may be detained after such a conclusion has been reached is plainly different, and would appear to be as Elias LJ suggested.
+There is therefore no necessary implication that the enactment of a power to detain goods liable to forfeiture entailed the abrogation of the existing power to detain as part of the process of examination. (2) It is difficult to conceive why Parliament should have conferred upon the Commissioners and their officers a wider range of intrusive investigatory powers than any other public body, but should at the same time have chosen to deprive them of a means of preventing goods from being disposed of until they have completed their examination and decided whether the goods should be seized.
+Why depart from an approach long approved by the courts? Why, moreover, should Parliament have conferred on the Commissioners more extensive powers to detain persons (in section 138 of the 1979 Act) than to detain goods? (3) The 1952 Act was a consolidation Act with amendments.
+There is nothing in the report of the Committee reporting on the Bill (Report of the Committee on the Draft Customs and Excise Bill (1951), Cmd 8453), or in the notes on clauses prepared by Parliamentary counsel, included as an appendix to the report, to indicate that Parliament intended the 1952 Act to have the effect of restricting the existing powers of detention possessed by customs officers.
+We turn now to consider the present appeals in the light of these general observations.
+The Eastenders case
+In the Eastenders case, there is no dispute that the officers were entitled to inspect the goods in question in accordance with section 118C(2) of the 1979 Act, and to require the production of documents under section 118B.
+It is also not in dispute that, as Sales J found, the officers had reasonable grounds to suspect that duty had not been paid on the goods.
+The officers were unable to fulfil the object of the inspection, by determining whether the appropriate duties had been paid, without making further enquiries into the provenance of the goods.
+They detained the goods while those enquiries were made.
+It is not in dispute that the period during which the goods were detained did not exceed a reasonable period of time.
+In the present appeal, counsel for the Commissioners submitted that section 118C(2) of the 1979 Act authorised the detention of the goods until the statutory inspection had been completed, and further submitted, in the light of the Jacobsohn case, that there was, and had always been, a power to detain goods pending determination of whether or not they were liable to forfeiture.
+It was however their primary contention that the inspection of the goods came to an end when the goods had been visually examined, and that their subsequent detention must therefore be justified under section 139(1).
+For the reasons we have explained at paras 35 37, we consider that that approach is based upon an unduly narrow understanding of what may be involved in an inspection in such circumstances.
+As we have explained at para 23, we consider that the majority of the Court of Appeal were correct in their construction of section 139(1).
+They were therefore correct to hold that, since the goods were not in fact liable to forfeiture, their detention did not fall within the scope of section 139(1).
+It does not however follow that the officers had no power to detain the goods for the purpose of investigating their duty status.
+Since the officers were carrying out a lawful inspection of the goods for the purpose of determining whether the appropriate duties had been paid, and had reasonable grounds to suspect that duty had not been paid, they were in our view entitled by virtue of section 118C(2) to detain the goods for a reasonable period in order to complete the enquiries necessary to make their determination.
+The First Stop Case
+In the First Stop case, there is no dispute that the officers were entitled to examine the goods in question in accordance with section 112 of the 1979 Act, and to require the production of documents under section 112A.
+The officers were unable to fulfil the object of the examination, by determining whether the appropriate duties had been paid, without making further enquiries into the provenance of the goods.
+They detained the goods while those enquiries were made.
+They appear to have had reasonable grounds for suspicion that duty had not been paid, and the contrary has not been argued.
+It has not been argued that the period during which the goods were detained exceeded a reasonable period of time.
+As in the Eastenders appeal, it was submitted on behalf of the Commissioners that the power of examination conferred by section 112 permitted the Commissioners to detain the goods for the purpose of their examination, and that there was a power to detain the goods pending determination of whether or not they were liable to forfeiture.
+These were again, however, conceived to be distinct powers, on the assumption that the examination of the goods came to an end when they had been visually inspected.
+It was therefore the Commissioners primary contention that the power to detain the goods after that point must have some other source, section 139(1) being the only candidate.
+As in the Eastenders appeal, we consider however that the examination was not completed until the necessary enquiries had been made, and that the power of examination impliedly included an ancillary power of detention for a reasonable time while those enquiries were made.
+Counsel for First Stop submitted that this approach to the case was not open to the Commissioners, since they had expressly referred to section 139(1) as the legal basis of the detention of the goods: see para 8 above.
+We are unable to accept that submission.
+The lawfulness of the detention of the goods depends upon whether the Commissioners possessed the power to detain them, not on whether they accurately identified the statutory source of that power.
+The reasons given to First Stop for the detention of the goods (pending further enquiries into their duty status), although certainly not expansive, were sufficient to enable them to exercise their rights, as indeed they did.
+As we have explained, section 144(2) of the 1979 Act confers a protection against liability in damages or costs.
+It applies where any proceedings are brought against the Commissioners, a law officer of the Crown or any person authorised by or under the [1979 Act] to seize or detain any thing liable to forfeiture under the customs and excise Acts on account of the seizure or detention of any thing, and judgment is given for the plaintiff or prosecutor.
+In the circumstances of the Eastenders and First Stop cases, judgment should not have been given for the claimants: on a proper understanding, the detention of their goods had been lawful, and their applications for judicial review should therefore have been dismissed.
+Section 144(2) was therefore not applicable.
+The court should have exercised its ordinary discretion in relation to the costs of the proceedings.
+It is unnecessary to decide whether, in any event, section 144(2) applies where goods are detained otherwise than under section 139(1).
+It follows that the points that were raised by First Stop (and which Eastenders also sought to raise) in relation to the compatibility of section 144(2) with Convention rights do not arise.
+It also follows, however, that the decisions on costs in both cases were made on a mistaken basis.
+No court has been addressed on the issue of costs in these cases on the basis that the court possessed its ordinary discretion.
+In the circumstances, it is appropriate that the decisions on costs should be set aside and the matter re considered by this court on the proper basis.
+Disposition
+For these reasons, we would allow the Commissioners appeal in the Eastenders case, and dismiss the first of the appeals brought by First Stop.
+The appeal in relation to costs should be allowed.
+The decision of the Court of Appeal in relation to costs in the Eastenders case should also be set aside.
+The parties should be invited to make submissions on the issue of costs in this court and the courts below.
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+The specific issue raised by this appeal is whether East Sussex County Council (the County Council) was wrong in law to decide to register an area of just over 6 hectares (or 15 acres) known as West Beach at Newhaven (the Beach) as a village green pursuant to the provisions of the Commons Act 2006.
+The points of principle raised by the appeal are, potentially at least, far more wide ranging.
+Those points are (i) the nature of the publics rights over coastal beaches, (ii) whether byelaws can give rise to an implied consent to the public to use land, and (iii) the interrelationship of the statutory law relating to village greens and other duties imposed by statute.
+The factual background
+Newhaven is a port town on the mouth of the River Ouse in East Sussex, and its harbour (the Harbour) has existed since the mid sixteenth century, after a storm blocked the original mouth of the River Ouse, some three miles to the east.
+Since at least 1731, the operation of the Harbour has been subject to legislation.
+The Newhaven Harbour and Ouse Lower Navigation Act 1847 (the 1847 Newhaven Act) repealed the earlier legislation, and established harbour trustees (the trustees), to whom it gave powers to maintain and support the harbour and associated works.
+Section 49 of the 1847 Newhaven Act is in these terms:
+[T]he Trustees shall maintain, and support the said harbour of Newhaven, and the piers, groynes, sluices, wharfs, mooring berths, and other works connected therewith, and also maintain and support the open navigation of the River Ouse between
+Newhaven Bridge and Lewes Bridge
+The Newhaven Harbour and Ouse Lower Navigation Act 1863 (the 1863 Newhaven Act) gave the trustees powers to construct and maintain and support the Harbour and associated works.
+The Newhaven Harbour Improvement Act 1878 (the 1878 Newhaven Act) established the Newhaven Harbour Company to which were transferred the rights, powers and duties of the trustees.
+Under section 57 of the 1878 Newhaven Act it is provided that: the Company may hire or purchase and use any dredging machine for the purpose of deepening and cleansing the harbour Section 2 of the 1878 Newhaven Act applied to the port section 33 of the Harbours, Docks and Piers Clauses Act 1847 (the 1847 Clauses Act), which provides that: Upon payment of the rates made payable by this and the special Act, and subject to the other provisions thereof, the harbour, dock and pier shall be open to all persons for the shipping and unshipping of goods, and the embarking and landing of passengers.
+By virtue of the Southern Railway Act 1926, the Harbour Company was vested in the Southern Railway Company.
+Pursuant to the Transport Act 1947, the Southern Railway Company was nationalised, and the Harbour was vested in the British Transport Commission.
+As a result of subsequent statutory and contractual arrangements, the Harbour subsequently vested in British Railways Board (1962), Sealink (UK) Limited (1979), Sea Containers Limited (1984), and, most recently, in 1991, Newhaven Port and Properties Limited (NPP), pursuant to the Sealink (Transfer of Newhaven Harbour) Harbour Revision Order 1991 (SI 1991/1257) (the 1991 Newhaven Order).
+Paras 10 and 11 of the 1991 Newhaven Order provide:
+10 (1) The Company, subject to obtaining the necessary rights in or over land, may execute, place, maintain and operate in and over the transferred harbour such works and equipments as are required for or in connection with the exercise by it of any of its functions and may alter, renew or extend any works so constructed or placed. 11 (1) The Company may deepen, widen, dredge, scour and improve the bed and foreshore of the transferred harbour and may blast any rock within the transferred harbour or in such approaches.
+The Beach is part of the operational land of the Harbour, which is currently owned and operated by NPP, and is subject to statutory provisions and byelaws.
+The extent of the Harbour area includes (i) a substantial breakwater and lighthouse, seawall and the Beach which form the west of the entry into the port, (ii) a pier, a much longer (and naturally created) shingle beach which form the east of that entry, (iii) the mouth of the River Ouse and the next thousand metres or so of the river, and (iv) land running either side of the river, which includes (v) a car park, marina and fishing berth to the west, and (vi) two quays, a ferry dock, a cool store, a harbour railway station, and harbour offices to the east.
+NPPs current strategic plan for development of the port is contained in its Masterplan (2012).
+The Beach owes its origin to the fact that, in 1883, pursuant to the powers granted by the 1863 Newhaven Act, the substantial breakwater was constructed to form the western boundary of the Harbour.
+The breakwater extends just over 700 metres out to sea.
+After the construction of the breakwater, accretion of sand occurred along the eastern side of the breakwater, and that accretion has resulted in the Beach.
+To the north, the Beach is bounded by a harbour wall.
+On top of the harbour wall is an area of hard standing and a car park, which is now owned and operated by NPP.
+There are physically two means of access to the Beach: first, by steps leading down from the top of the wall, and, secondly, by another set of steps leading down from the top of the breakwater.
+The Beach is substantially covered by the sea for periods of time either side of high tide.
+Inevitably, as the tide ebbs and flows, the amount of the land uncovered varies, and the amount of the land uncovered at low tide and the period for which the whole of the Beach is covered with water varies between spring (high) and neap (low) tides.
+On average, the Beach is wholly covered by water for 42% of the time and for the remaining 58% of the time it is uncovered to some extent, but it is entirely uncovered by water only for a few minutes at a time.
+The steps leading down to the Beach from the top of the harbour wall were accessible in practice by members of the public from shortly after the end of the Second World War (during which time it was closed) until it was fenced off by NPP in April 2006.
+Thereafter, access by the public was no longer possible, because access from the steps leading from the top of the breakwater had been closed off before 2006.
+The making of byelaws relating to Newhaven Harbour
+Section 58 of the 1878 Newhaven Act conferred on the Harbour Company the power to make byelaws which were to be approved and published in the manner prescribed by the 1847 Clauses Act.
+Section 83 of the 1847 Clauses Act gives to the undertakers in whom a harbour is vested the power to make byelaws as they shall think fit for various purposes, including [f]or regulating the use of the harbour, dock, or pier.
+Section 84 provides for criminal sanctions at the suit of the undertaker for breach of such byelaws.
+Section 85 of the 1847 Clauses Act states that the byelaws should not come into operation until the same be confirmed as required by that Act.
+Sections 86 and 87 of that Act are concerned with advertising and providing copies of the byelaws before confirmation.
+Provisions relating to the publication and display of such byelaws were contained in sections 88 and 89 of the 1847 Clauses Act: 88.
+The said byelaws when confirmed shall be published in the prescribed manner, and when no manner of publication is prescribed they shall be printed; and the clerk to the undertakers shall deliver a printed copy thereof to every person applying for the same, without charge, and a copy thereof shall be painted or placed on boards, and put up in some conspicuous part of the office of the undertakers, and also on some conspicuous part of the harbour, dock, or pier, and such boards, with the byelaws thereon, shall be renewed from time to time, as occasion shall require, and shall be open to inspection without fee or reward 89.
+All byelaws made and confirmed according to the provisions of this and the special Act, when so published and put up, shall be binding upon and be observed by all parties, and shall be sufficient to justify all persons acting under the same.
+Section 89 was repealed by the Statute Law (Repeals) Act 1993.
+Section 90 of the 1847 Clauses Act provides that [t]he Production of a written or printed Copy of the Bye laws appropriately authenticated shall be evidence of the Existence and due making of such Bye Laws, and with respect to the Proof of the Publication of any such Bye Laws it shall be sufficient to prove that a Board containing a Copy thereof was put up and continued in manner by this Act directed .
+In February 1931, the Southern Railway Company made byelaws for the Regulation of Newhaven Harbour (the Byelaws), which were confirmed by the Minister of Transport the following month.
+The following Byelaws are germane to the present appeal:
+No person shall enter or remain on the quays of the harbour unless he has lawful business thereon, or has received permission from the Harbour Master to do so; and every person entering or who shall have entered on such quays, shall, whenever required so to do by any duly authorised servant of the Company, truly inform him of the business in respect of which such person claims to be entitled to be thereon.
+Any person committing a breach of this byelaw may be forthwith removed from the quays and be excluded therefrom 52.
+No person shall, without the consent of the Harbour Master, enter or remain within any part of the piers or quays which may, under a reasonable direction of the Harbour Master, be enclosed by chains, or by a barrier. 68.
+No person, without the permission of the Harbour Master, shall fish in the harbour; and no person shall bathe in that part of the harbour which lies between Horse Shoe Sluice and an imaginary line drawn from the East Pier Lighthouse and the Breakwater Lighthouse. 70.
+No person shall engage in or play any sport or game so as to obstruct or impede the use of the harbour, or any part thereof, or any person thereon; nor (except in case of necessity or emergency) shall any person, without the consent of the Harbour Master, wilfully do any act thereon, which may cause danger or risk of danger to any other person. 71.
+No person shall bring any dog within the harbour, or permit it to be within the harbour, unless it is securely fastened by a suitable chain or cord, or is otherwise under proper and sufficient control.
+As regards publication and enforcement of the Byelaws, according to the Inspector who wrote the reports referred to in para 19 below, there were no byelaw signs in place during the relevant twenty year period that would have indicated to users of the Beach that their use was regulated by byelaws.
+She also concluded that there was no evidence of active enforcement of the Byelaws during that period; and that there was no other suggestion of any other overt act on the part of the landowner during that period to demonstrate that he was granting an implied permission for local inhabitants to use the Beach.
+The Commons Act 2006
+Town and village greens have been protected by statute since at least 1857.
+However, the currently applicable legislation is to be found in the Commons Act 2006, and in particular in section 15 of that Act, which replaced the preceding governing legislation, which was contained in the Commons Registration Act 1965.
+Section 15(1) of the 2006 Act provides that Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsection (2), (3) or (4) applies.
+Subsections (2), (3) and (4) each refer to cases where: (a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years.
+Subsection (2) only applies where this use was continuing at the date of the application; subsection (3) only applies where the use had ceased after section 15 commenced, provided that the application was made within two years of such cesser; and subsection (4) only applies where the land ceased to be so used before section 15 commenced, provided (i) the application is made within five years of the cesser and (ii) an inconsistent planning permission has not been granted and implemented.
+It is, of course, subsection (4) which is relied on in this case.
+By section 61 of the 2006 Act, it is provided that land includes land covered by water.
+It was argued below on behalf of NPP that a tidal beach cannot be a town or village green within the meaning of the 2006 Act.
+A speaker of ordinary English might well think that there is very considerable force in that argument.
+However, substantially for the reasons given by Ouseley J in the High Court and by Richards LJ in the Court of Appeal, the argument must be rejected see at [2012] EWHC 647 (Admin), [2014] QB 186, paras 11 39 and [2013] EWCA Civ 276, [2014] QB 186, paras 31 42.
+In summary, the argument is inconsistent with the reasoning of the majority of the House of Lords in Oxfordshire County Council v Oxford City Council [2006] UKHL 25, [2006] 2 AC 674, a case on the 1965 Act (as amended in 2000), which,
+for the purposes of the point at issue was identically worded to the 2006 Act
+see per Lord Hoffmann, Lord Rodger and Lord Walker respectively at paras 39, 115 and 128.
+It might have been appropriate for this Court to reconsider the Oxfordshire case were it not for the fact that it was decided while Parliament was considering the Bill which became the 2006 Act, and Lord Hoffmann, Lord Rodger and Lord Walker each expressly observed (in the paragraphs just mentioned) that, if Parliament was unhappy with the decision, the Bill could be amended appropriately, and it was not.
+Implied Parliamentary approval of a courts decision should not be lightly inferred, but in the present case, we thought it inappropriate to grant permission to appeal on this issue.
+The application to register
+On 18 December 2008 Newhaven Town Council (the Town Council) applied to the County Council, as the statutory registration authority, to register the Beach as a town or village green.
+The application was supported by evidence that the Beach had been used by a significant number of local inhabitants as of right and for a period of at least 20 years down to April 2006.
+NPP objected to the proposal, and the County Council appointed an Inspector, Ruth Stockley, a barrister experienced in this area of the law, to hold a public inquiry.
+The inquiry was held between 6 and 8 July 2010, following which Ms Stockley produced a report dated 6 October 2010 and an addendum report dated 14 December 2010, recommending that the Beach be registered as a town or village green.
+Ms Stockleys two reports were very full and clear.
+Importantly, she concluded that members of the public, and, crucially residents of the locality, had used the Beach for well over 80 years as a place to play, sunbathe, swim from, picnic and the like (save during much of the First and Second World War periods, when the port area, including the Beach, were inaccessible).
+On 22 December 2010, the two reports and recommendation were put before the County Councils Commons and Village Green Registration Panel (the Panel), together with an officers recommendation that the County Council accept the application and register the land as a town or village green.
+The Panel resolved to accept the application to register the Beach, but the actual registration awaits the outcome of these proceedings.
+NPP then applied to the High Court for judicial review of the decision to register the Beach as a town or village green.
+The application came before Ouseley J who, in a comprehensive and carefully considered judgment, rejected a number of arguments raised by NPP, but granted their application on one ground, namely that it was reasonably foreseeable that the registration of the Beach would conflict with the statutory functions for which the Beach was held by NPP, namely as part of Newhaven Harbour [2012] EWHC 647 (Admin) [2014] QB 186.
+The County Council and the Town Council appealed that decision to the Court of Appeal, who, in the course of their impressive judgments, unanimously disagreed with the Judges reason for granting the application [2013] EWCA 276, [2014] QB 186.
+Accordingly, the majority of the Court of Appeal (Richards and McFarlane LJJ) allowed the appeal.
+Lewison LJ would have dismissed the appeal on the ground that the use of the Beach by members of the public, and therefore by inhabitants of the locality, up to 2006 had not been as of right, but by implied licence, for two different reasons, namely (i) because members of the public had enjoyed an implied licence to use coastal beaches in the UK for recreational and associated purposes, and/or (ii) by virtue of the provisions of the byelaws governing the Harbour area.
+The issues on this appeal
+The provisions of section 15 of the 2006 Act only enable land to be registered as a town or village green if it has been used for recreational and similar purposes by inhabitants of the locality for more than twenty years as of right.
+As was explained most recently by this Court in R (Barkas) v North Yorkshire County Council [2014] UKSC 31, [2014] 2 WLR 1360, paras 14 19 and 58 68, that expression, perhaps somewhat confusingly, is to be contrasted with by right, and generally connotes user without any right, whether derived from custom and usage, statute, prescription or express or implied permission of the owner.
+Accordingly, where the inhabitants of the locality have indulged in sports and pastimes on the land in question with the licence of the owner for at least part of the relevant twenty year period, section 15 will not apply.
+Three issues arise on this appeal.
+The first is whether the fact that the Beach is part of the foreshore defeats the contention that the user by local inhabitants for sports and pastimes can have been as of right, on the ground that the public had an implied licence to use the foreshore for such purposes and the implied right was never revoked in the case of the Beach.
+The second issue is whether, if that is not right, the public none the less had an implied licence to use the Beach, as part of the Harbour, in the light of the Byelaws.
+The third issue is whether, in any event, section 15 of the 2006 Act 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 to which the land was to be put.
+We will take these three issues in turn.
+Public rights over the foreshore: the arguments
+The foreshore around England and Wales, by which is meant the area between the high water and low water mark, is owned by the Crown, although it is open to the Crown to alienate it, either permanently by conveying or transferring it, or temporarily by granting leases over it see eg Halsburys Laws (4th ed 1998 reissue) vol 12(1), para 242.
+During the course of argument, we were informed that the Crown retained ownership and possession of more than half the foreshore around England and Wales.
+Most of the foreshore which the Crown no longer owns was at some point conveyed or transferred away.
+But to describe the Beach in this case as having been alienated in this way may be slightly misleading, as the Beach only came into existence as a beach in 1883 in the circumstances described in para 9 above.
+However, that does not impinge on NPPs argument, which is that there is a rebuttable presumption that the public use of the foreshore is by permission of the owner of the Beach that is, the Crown or its successors in title.
+This proposition was rejected by Ouseley J at first instance and by the majority of the Court of Appeal, Richards and McFarlane LJJ.
+However, it was accepted by Lewison LJ.
+The state of the law relating to public rights over the foreshore of England and Wales is more controversial than one might have expected.
+It appears clear that there is, at least normally, a public right of navigation and of fishing in the sea and rights ancillary to it Halsbury op cit, para 243.
+However, the question in this case is the existence and nature of any further or greater rights, and in particular the right to use the foreshore for the purpose of bathing and the sort of familiar activities which people indulge in on a beach at least in good weather.
+At least where there is no express permission from the owner of the foreshore, there are in principle at least three possible conclusions in relation to the issue of the publics right to use the foreshore for bathing, by which we mean using the foreshore as access to the sea at low tide, or bathing in the sea over the foreshore at high tide (or a combination of the two), plus associated recreational activities.
+The first is that members of the public have, as a matter of general law and irrespective of the wishes of the owner of the foreshore, the right to use the foreshore for the purpose of bathing, as a matter of general common law.
+The second possibility is that the owner of the foreshore is presumed to permit members of the public to use of the foreshore for the purpose of bathing, unless and until the owner communicates a revocation of its implied permission.
+The third possibility is that members of the public have no right to use the foreshore for bathing, in which case they are trespassers.
+NPP would succeed on the first issue on this appeal if the first or second of these possibilities is correct.
+If local inhabitants (a subset of members of the public) had been using the Beach because they were entitled to do so as a matter of common law (the first possibility), or because they had an implied permission to do so (the second possibility), then, in so far as they were inhabitants of the locality, they would not have been doing so as of right, but by right.
+On the other hand, if the third possibility is correct, NPP would fail because the user by local inhabitants would have been as trespassers, and therefore as of right, at least subject to the other two issues on this appeal.
+So far as the relevant cases on the issue are concerned, none is binding on this Court, but they tend to be against the first possibility and somewhat unclear as between the second and third possibilities.
+Presumably for that reason, Mr George QC, on behalf of NPP, does not argue for the first possibility and takes his stand on the second possibility.
+Public rights over the foreshore: the authorities
+The leading, and it may be said the only, reported case where the topic of the rights of members of the public to bathe on the foreshore has been considered in any detail is Blundell v Catterall (1821) 5 B & Ald 268.
+In that case, the defendant used the beach between the high water mark and the low water mark of the River Mersey at Great Crosby in Lancashire for the purpose of providing bathing facilities (including bathing machines and carriages for members of the public who wished to swim in the sea).
+The plaintiff, as Lord of the Manor of Great Crosby and owner of the beach in question, sought an injunction to restrain this use.
+The defendant argued that all members of the public had the right to use a beach for the purpose of gaining access to, and bathing in, the sea.
+The Court of Kings Bench, Best J dissenting, decided that, unless such a right could be established by usage and custom, there was no common law right for all the Kings subjects to bathe in the sea and to pass over the seashore for that purpose.
+The leading judgment has long been regarded as that of Holroyd J who gave the extent of the rights of the public over the seashore impressively full and detailed consideration, although Abbott CJ and Bayley J also delivered full judgments, as did the dissenting Best J.
+Best J in effect followed the view expressed in Bractons De Legibus et Consuetudinibus Angliae, where it is written Naturali vero iure communia sunt omnium haec: aqua profluens, aer et mare et litora mare, quasi mari accessoria.
+Nemo igitur ad litus maris accedere prohibetur (By natural law these are common to all: running water, air, the sea, and the shores of the sea, as though accessories of the sea.
+No one therefore is forbidden access to the seashore).
+However, Holroyd J considered that this represented the civilian law, but not the common law.
+Essentially, as we see it, the reasoning of the majority can be justified by reference to the well established common law proposition that rights over land can normally only be obtained by grant, custom and usage, or prescription.
+Custom and usage required a long period of use for the specified purpose, and prescription could (at any rate until 1832) normally only be invoked if it could be shown that the use had continued since time immemorial which, at least normally, meant 1189.
+Bathing in the sea, unlike fishing and navigation, was a comparatively recent popular activity, which seems to have started as such around the middle of the 18th century.
+Although Strutt in Sports and Pastimes of the People of England (1802) refers to swimming as an exercise of great antiquity, the first recorded instance of people bathing in the sea for pleasure, according to NPP in this case, was in Scarborough in 1732 (Crane, Coast: Our Island Story: A Journey of Discovery Around Britain's Coastline, 2010, p 218).
+Accordingly, bathing could rarely be a right obtained by custom and usage or (at least until the Prescription Act 1832, which introduced the twenty year and forty year rules) by prescription.
+The decision in Blundell was not concerned with the second possibility canvassed in para 29 above, namely whether there was, or could be taken to be, some sort of tacit licence on the part of the owner of the sea shore permitting members of the public to use it for bathing, recreations and pastimes.
+The point could not have arisen in that case, because it would not have availed the defendant, as any such licence would have been revoked by the plaintiffs objection to the defendants use of the beach.
+None the less, there are observations in the judgments in Blundell, which appear to imply that the right to use the foreshore for bathing or for access to the sea for bathing could be acquired by prescription.
+For instance, at p 301, albeit in a passage whose clarity is not assisted by a double negative, Holroyd J said nor, if [the present claim] were [supported by custom or usage], would it follow that it was such a common law right as might not, by prescription at least, be otherwise appropriated.
+It seems to us that that observation carries with it the implication that a member of the public would be trespassing on the foreshore if he used it for that purpose, as otherwise they could not raise a claim by prescription.
+However, it would not be safe to make much of what is little more than a throw away obiter observation.
+Further, in what may be seen as a hint at the possibility of an implied licence at p 300, Holroyd J said this: Where the soil remains the King's, and where no mischief or injury is likely to arise from the enjoyment or exercise of such a public right, it is not to be supposed that an unnecessary and injurious restraint upon the subjects would, in that respect, be enforced by the King, the parens patriae.
+This provides some apparent assistance to NPPs argument that there is an implied licence from the owner of a beach to use it for purposes which do not interfere with the interests of the owner.
+However, it would be wrong to place much weight on it, as, once again, it was not really relevant to the issue which the court had to decide, and it is not clear quite what the legal characterisation of the owners indulgence Holroyd J had in mind.
+In Mace v Philcox (1864) 15 CB (NS) 600, Williams J appears to have treated Blundell as a decision limited to the presence or use of bathing machines.
+In the same case, Erle CJ was apparently unenthusiastic about the majority view in Blundell, saying I am desirous of guarding my judgment so as not to restrict the valuable usage or right of Her Majestys subjects to resort to the sea shore for bathing purposes, although he followed the majority view.
+So did Cozens Hardy J in Llandudno Urban District Council v Woods [1899] 2 Ch 705, albeit without any expressed lack of enthusiasm.
+However, it could be said that he demonstrated a degree of restraint by refusing an injunction to restrain the activity in question (preaching on the foreshore) although concluding, in accordance with the reasoning in Blundell, that it was a trespass.
+In Brinckman v Matley [1904] 2 Ch 313, 317, Buckley J, after referring to the fact that it had been applied in two first instance decisions of Mace and Llandudno, followed the judgment of Holroyd J in Blundell, and proceeded on the basis that members of the public did not have the right to go on the foreshore for the purpose of bathing or getting access to the sea for bathing.
+In the Court of Appeal in Brinckman, Vaughan Williams LJ said at p 322 that the majority view in Blundell, even if technically obiter, has been recognised ever since by the whole of the profession as an accurate and binding statement of the law.
+Accordingly, he concluded, I do not think that we ought now, after the lapse of eighty years, to upset the law thus settled.
+Romer and Cozens Hardy LJJ took the same view see at pp 326 and 327. 41.
+Shortly after this, Buckley J in Behrens v Richards [1905] 2 Ch 614 refused an injunction sought by the owner of land leading to the foreshore against
+fishermen who used the land to gain access to the foreshore, although he held
+42. that the fishermen had established no public right of way by long user.
+Buckley J said this at pp 619 620: I cite again, as I did in Brinckman v Matley, Bowen LJs words in Blount v Layard [1891] 2 Ch 681n, 691n, that nothing worse can happen in a free country than to force people to be churlish about their rights for fear that their indulgence may be abused, and to drive them to prevent the enjoyment of things which, although they are matters of private property, naturally give pleasure to many others besides the owners, under the fear that their good nature may be misunderstood, and that, however continuous, however lengthy, the indulgence may have been, a jury ought to be warned against extracting out of it an inference unfavourable to the person who has granted the indulgence.
+In permitting persons to stray along the cliff edge or wander down the cliff face or stroll along the foreshore the owner of the land was permitting that which was no injury to him and whose refusal would have been a churlish and unreasonable act on his part.
+From such a user nothing, I think, is to be inferred.
+This observation may give some support for the notion of an implied licence, the second possibility identified in para 29 above, but it refers to the use of land as a public means of access to the foreshore, not to the use of the foreshore itself.
+In Alfred F Beckett Ltd v Lyons [1967] Ch 449, the Court of Appeal declined to hold that gatherers of coal on the foreshore for personal use were trespassers.
+Coal gathering by local inhabitants went back to 1895, and, if they had been trespassers, the coal gathering would have been carried on as of right for more than 20 years.
+However, as it was held that there was no trespass, no prescriptive right could have been obtained.
+The judgments therefore provide support for the second possibility referred to in para 29 above, and in particular there are dicta which support the notion that the use of the seashore for purposes other than fishing and navigation would be pursuant to an implied licence from the owner of the foreshore.
+Thus, Harman LJ observed at p 469A that it was notorious that in many and indeed most places the use of the foreshore by the public for purposes of recreation and bathing is tolerated, and at 472F that The practice may be sufficiently explained by tolerance of the foreshore owner, who would have been churlish indeed if he had stopped a poor man climbing up the cliff with a bag of small coals picked up on the shore to nourish his evening fire.
+Accordingly, at p 474A, he held that there was no prescribed right to collect coal from the beach as toleration is a sufficient explanation.
+Russell LJ, who said pithily at p 476A that the only reasonable conclusion is mere tolerance of the 43. unimportant, and Winn LJ, who referred at p 485G to collecting coal as being a practice which had been long permitted took the same view.
+In passing, it is worth noting that Harman and Winn LJJ considered that a fluctuating group of people (such as local inhabitants) could not claim the right to gather coal by prescription see at pp 474B D and 479C D respectively.
+Harman LJ based his reasoning on the fact that the right would be a profit a prendre.
+However, Winn LJ quoted from a judgment of Farwell J in Attorney General v Antrobus [1905] 2 Ch 188, 198 which suggested that an easement could not be obtained for recreational purposes.
+However, that may not be right in the light of In re Ellenborough Park [1956] Ch 131.
+Having said that, it is questionable whether, under common law as opposed to statute, a right to use the foreshore for bathing could be claimed by a fluctuating group of people such as the inhabitants of a neighbourhood or locality, as opposed to each owner of an alleged dominant property establishing a prescriptive easement arising from more than 20 years of such use as of right by that owner and/or his predecessors. 44.
+While the reasoning in Beckett provides some support for the second possibility identified in para 29 above, it has a number of features which render it at least arguably of limited assistance.
+First, it was not concerned with the right to bathe.
+Secondly, as is clear from what was said at pp 465A D and 469B D, the right to gather coal was treated as acknowledged in two deeds of grant from the Crown.
+Thirdly, it appears to have been accepted that the public rights over the foreshore were limited as held in Blundell, but the point was left open at least by Winn LJ at p 486C.
+Fourthly, the Court in Beckett proceeded on the basis that Jones v Bates [1938] 2 All ER 237 was correct, ie that the subjective belief of the person claiming a prescriptive right was relevant, indeed often determinative, on the question whether he had been acting as of right, which is wrong see R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335, 358H, per Lord Hoffmann. 45.
+Furthermore, in Mills v Silver [1991] Ch 271, 279G 280B, Dillon LJ pertinently observed in relation to the reasoning in Beckett that if there is an established principle of law that no prescriptive right can be acquired if the user by the dominant owner of the servient tenement has been tolerated without objection by the servient owner, it would be fundamentally inconsistent with the whole notion of acquisition of rights by prescription.
+This passage was cited with approval in Sunningwell at p 358F, in R (Beresford) v Sunderland City Council [2003] UKHL 60, [2004] 1 AC 889, paras 5 6 and 79 82, and in Barkas at para 28.
+Public rights over the foreshore: discussion 46.
+The choice between the three possibilities identified in para 29 raises an issue which is both difficult and important.
+The importance of conclusively deciding the nature and extent of the publics rights over the foreshore of England and Wales is self evident.
+The difficulty arises because each of the three possibilities gives rise to problems. 47.
+There is a great deal to be said for the third possibility, namely that the public have no rights to use the foreshore for bathing, on the basis that their rights are limited to access for navigation and fishing, given the reasoning in, and long standing nature of, the majority judgments in in Blundell.
+The reasoning speaks for itself, and the judgments have generally been followed by judges and have been assumed to be correct.
+However, the decision is not binding on this Court, the dissenting judgment of Best J is not without force, and, as was reportedly stated on behalf of the unsuccessful appellant in Brinckman at p 320: The decision in Blundell v Catterall has been disapproved by text writers, eg, Hall on the Seashore, 2nd ed, pp 156 et seq.
+The same view is taken in Phears Rights of Water, pp 44 et seq, Stuart Moore on the Foreshore, pp 833 et seq.
+Quite apart from this, it can be said that the second (implied licence) possibility mentioned in para 29 above is somewhat artificial and was only developed because it was assumed that the majority view in Blundell represented the law.
+Further, the law of Scotland appears consistent, or at least more consistent, with Best Js dissenting view see Officers of State v Smith (1846) 8 D 711, 719 per the Lord Justice Clerk.
+Having said that, it would be a strong thing to depart from the majority view in Blundell, given that it has been treated as being the law for nearly 200 years. 48.
+The second possibility, namely a rebuttable presumption of a licence, has some support in the cases (see paras 41 43 above), but it may well be based on somewhat shaky legal foundations (see paras 44 45 above).
+It would also be rather curious, as it would mean that the position with regard to the foreshore is the opposite of the position with regard to almost all other land: a permission for the public to use is to be assumed for the foreshore, but not for any other land.
+There are some possible reasons for treating the foreshore in a special way for present purposes, as Lewison LJ mentioned in para 128 of the Court of Appeal judgment, but, Mr Sauvain QC, for the County Council argues with some force that they do not seem to be overwhelmingly powerful.
+Further, if the rebuttable presumption of permission applied to the foreshore, it would either also apply to any part of a beach above high water mark, or one would have what may be a rather odd dichotomy between the foreshore and the upper part of many beaches. 50. 49.
+As to the first possibility, the notion that members of the public have the right to use the foreshore for bathing would, as mentioned, align the law of England and Wales with that of Scotland, and it may well accord with the views and expectations of many non lawyers.
+However, it might risk upsetting the effect of decisions and actions based on the not unreasonable assumption that the majority view in Blundell represented the law.
+And it may give rise to other problems for owners of the foreshore.
+It would also give rise to the arguable dichotomy mentioned at the end of para 48 above.
+In all these circumstances, it seems to us that, unless it is necessary to do so for the purpose of determining this appeal (and it is not for the reasons which appear later in this judgment), this court ought not to determine the first issue, that is which of the three possibilities set out in para 29 above is correct.
+The issue is one of wide ranging importance, and we would be uncomfortable about determining it in circumstances where it was common ground that the first possibility could be ruled out.
+However, given that the point has been raised and argued, and as it may well arise in another case (whether under the 2006 Act or otherwise), we considered that it would be worthwhile identifying the issue as well as referring to the arguments and problems as they appear to us at this stage.
+Since writing this, we have had the opportunity of reading in draft the judgment of Lord Carnwath, which gives further food for thought on this interesting issue. 51.
+Accordingly, we proceed on the assumption that the majority of the Court of Appeal and Ouseley J were correct, and that, at least so far as the general common law is concerned, and subject to the other two more specific issues to which we now turn, members of the public, and therefore inhabitants of the locality, used the Beach for bathing as of right and not by right.
+The Byelaws: introductory 52.
+NPPs argument is that the effect of the Byelaws was to amount to a licence or permission to members of the public to use the Beach for leisure activities.
+If that argument is correct, then NPPs appeal must succeed, as the use of the Beach by inhabitants of the neighbourhood, as members of the public, would not have been as of right. 53.
+NPPs argument on this issue raises two points.
+The first is whether the Byelaws, if they had been, or should be treated as having been, properly communicated, would have amounted to a licence or permission sufficient to defeat the public use of the Beach as having been as of right.
+The second point is whether the Byelaws were, or should be treated as having been, sufficiently communicated to members of the public during the twenty years preceding 2006 when the Beach was used for bathing by members of the public.
+NPP contends that the answer to both points is in the affirmative, the County Council contends that both points should be answered no, and the Town Council agrees with NPP on the first point and with the Council on the second.
+While the Court of Appeal were unanimously in agreement with NPP on the first point, only Lewison LJ agreed with them on the second point.
+We will consider each of the two points in turn.
+The Byelaws: did they give rise to a licence as a matter of interpretation? 54.
+It appears to be common ground that a byelaw can, as a matter of principle permit an activity which would otherwise be unlawful, and we think that this is right.
+As suggested in Halsburys Laws (5th ed, 2009) vol 69, para 553, the classic definition of a byelaw was given by Lord Russell of Killowen CJ in Kruse v Johnson [1898] 2 QB 91, 96: A by law, of the class we are here considering, I take to be an ordinance affecting the public, or some portion of the public, imposed by some authority clothed with statutory powers ordering something to be done or not to be done, and accompanied by some sanction or penalty for its non observance.
+It necessarily involves restriction of liberty of action by persons who come under its operation as to acts which, but for the by law, they would be free to do or not do as they pleased.
+Further, it involves this consequence that, if validly made, it has the force of law within the sphere of its legitimate operation. 55.
+The reference to ordering something to be done or not to be done carries with it an ability permitting something to be done: if an entity has the power to forbid or require, it must also have the power to permit that which it can forbid.
+However, in agreement with Richards LJ at para 72 in the Court of Appeal, we would accept that mere silence or inaction on the part of the entity cannot amount to permitting.
+In the same way as silence and inactivity on the part of a private landowner cannot, without more, amount to consent (save, arguably, as discussed in cases such as those mentioned in paras 44 45 above), so would the absence of any express or implied prohibition in the byelaws, without more, not amount to an implied licence. 56.
+Of course, it may be that the statutory powers pursuant to which particular byelaws are made are expressed in terms which lead to the conclusion that the byelaws made thereunder cannot or are not intended to extend to permitting activities or certain activities, in which event the byelaws would either have to be construed so that they did not have that effect or they would be ultra vires.
+However, there is no question of such an argument being applicable in this case, in the light of the wide words of section 83 of the 1847 Clauses Act (quoted in para 12 above).
+Indeed, it is worth bearing in mind that the 1847 Clauses Act stipulates that it is to be the relevant undertaking which makes the Byelaws, and the undertaking is the entity which owns the harbour.
+In other words, the Byelaws are made and enforced by the owner of the land concerned, which plainly supports the notion that they can properly involve the grant of rights over the land. 57.
+Accordingly, the question which arises is whether, on their true construction, the Byelaws permitted members of the public to use the Beach for leisure activities.
+NPP cannot point to a Byelaw which expressly permits such activities in terms and therefore one is in the realm of implied permission.
+It is not part of the County Councils case, as we understand it, that byelaws could not grant a licence by implication.
+This is unsurprising: once it is accepted that byelaws can grant a licence, it is hard to justify the argument that they can only grant a licence expressly.
+Of course, the usual principles apply to implications: they are only justified when they are necessary or obvious. 58.
+A prohibition can be expressed in such a way as to imply a permission.
+For instance, it is hard to argue against the proposition that a byelaw which states that dogs must be kept on a lead in a public park implies a permission to bring dogs into the park, provided that they are kept on a lead.
+It is at least as a matter of pure linguistic logic, possible to interpret the byelaw as solely meaning that, if (and only if) specific permission is obtained from the park authority by a person to bring a dog into the park, then the byelaw will apply.
+However, any reasonable reader of the byelaw would not consider that it had such a limited meaning.
+In other words, as with any question of interpretation, a strictly logical linguistic analysis of the words concerned cannot prevail over a contextual assessment of what they would naturally convey to an ordinary and reasonable speaker of English. 59.
+Thus, Byelaw 71, which forbids the bringing of a dog into the Harbour unless it is securely fastened by a suitable chain or cord, or is otherwise under proper and sufficient control, would appear to a normal person speaking ordinary English to imply that dogs could be brought into the area of Newhaven Harbour, provided that they are appropriately fastened or under control, and are not precluded by any other Byelaw.
+We do not consider that this point is undermined if the Harbour Master had forbidden dogs to be brought into certain parts of the Harbour area, or even the Harbour generally.
+The fact that a property owner voluntarily gives a general permission to the public (or to an individual or group of individuals) to do an act does not prevent him from subsequently revoking or cutting down that permission. 60.
+The central question for present purposes is whether the Byelaws, and in particular Byelaws 68 and 70, imply that members of the public have the right to use the Beach for recreational activities associated with beaches.
+The argument advanced by NPP, and accepted by the Court of Appeal, is that (i) the prohibition of bathing in the area identified in the second part of Byelaw 68 and (ii) the prohibition on sports and games which impede the use of the harbour in Byelaw 70, imply that bathing can take place elsewhere in the Harbour and that associated recreational activities can also take place provided that they do not impede the use of the Harbour.
+In our view, particularly when one remembers that the Byelaws are made and enforced by and on behalf of the owner and operator of the Harbour, this argument is correct.
+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 two Byelaws (and in any other Byelaws).
+This conclusion is also supported by the reference to the consent of the Harbour Master in the first part of Byelaw 68 and the second half of Byelaw 70: if the activities referred to in the latter Byelaw (ie including an activity which endangers others) are permitted if the Harbour Masters consent is obtained, that reinforces the view that generally harmless activities such as bathing and playing are permitted, at least in principle.
+The conclusion is further reinforced by the fact that, at the time the Byelaws were made, members of the public had been and were using the Beach freely for the purpose of bathing and recreation. 61. 62.
+As Lord Sumption pointed out in argument, this conclusion is also supported by Byelaws 51 and 52.
+Those Byelaws would serve to cut down the areas within the Harbour in which bathing and recreations could take place (without the Harbour Masters permission), as they exclude people who simply want to bathe or play from the quays or from the piers in so far as they are enclosed by chains ie from the operational parts of the Harbour.
+In the first place, those two Byelaws suggest that any other person who does not have lawful business in the Harbour would be entitled to go onto other parts of the Harbour area unless precluded by another Byelaw (or any other law).
+Secondly, they undermine any argument which might otherwise be raised that the implied licence raised by NPP would go too far.
+In addition, they both contain reference to the Harbour Masters permission, which, as already mentioned, provides some further support for NPPs case.
+In these circumstances, the only factor which can stand in the way of NPPs succeeding in its argument that the use of the Beach by members of the public 63. was by right as a result of the Byelaws, is the fact that the Byelaws were not brought to the attention of the public, the issue to which we now turn.
+The Byelaws: did they have to be brought to the publics attention? 64.
+A preliminary point which is raised in this connection is the argument that the Byelaws were only valid or effective so long as a copy thereof was painted or placed on boards, and put up in some conspicuous part of the office of the undertakers, and also on some conspicuous part of the harbour, dock, or pier, pursuant to section 88 of the 1847 Clauses Act.
+The Court of Appeal rightly rejected that contention.
+As Lewison LJ said in para 133 in the Court of Appeal, it seems highly improbable that Parliament can have intended that the byelaws for harbours enabled by the 1847 Clauses Act should not apply if, for instance, the boards displaying them had been destroyed or washed away by a storm, or even pulled down by vandals. 65.
+Section 85 of the 1847 Clauses Act also supports this conclusion as, although expressed in the negative, it indicates that the byelaws become effective once they are confirmed, and publication and display clearly are intended to follow confirmation, as is clear from the opening part of section 88.
+Further, section 89 of the 1847 Clauses Act, now repealed, at most only imposed the initial display of the byelaws as a precondition to their efficacy; if it had had that effect, then the strong implication was that the continuing display of the byelaws was not a prerequisite to their continuing efficacy.
+In fact, as Lady Hale pointed out in argument, section 89 very probably took matters no further, given the grounds given for its repeal by the Law Commission pursuant to whose recommendation it was repealed.
+The Commission described it as an unnecessary [provision] confirming the binding effect of byelaws which reflected 19th century doubts as to the legal effect of subordinate legislation and would never be enacted in modern legislation see Statute Law Revision 14th Report (1993), Law Com 211, p 175.
+As Mr Laurence QC, for the Town Council, puts it, section 89 was repealed because it was and always had been unnecessary. 66.
+Nor is this conclusion called into question by section 90 of the 1847 Clauses Act.
+In so far as that section implies that it would be necessary to establish that the byelaws were exhibited on a board, it would only be for the purpose of justifying a prosecution for an infringement of the byelaws.
+The fact that it may be necessary to show that the byelaws were appropriately displayed before a prosecution for their infringement could proceed does not justify the contention that they are of no effect generally unless they are displayed.
+Accordingly, we conclude that the Byelaws were effective as byelaws in the sense of representing the local laws applicable to Newhaven Harbour, even though they were not displayed as required by section 88 of the 1847 Clauses Act, although that may well have meant that breach of the Byelaws could not have led to a prosecution (at least of someone who had infringed them without having seen them). 67.
+So we turn to the question whether the failure of NPP (and its predecessor) to ensure that the Byelaws were displayed means that they did not operate as an effective licence rendering the use of the Beach by member of the public by right, rather than as of right. 68.
+The majority of the Court of Appeal, in agreement with Ouseley J, considered that it was essential that any licence be communicated to the inhabitants of the locality before it could be said that their usage of land was by right.
+That is certainly the normal rule where one is concerned with a private land owner (subject to the point discussed in paras 41 43 above, namely where it is possible or appropriate to infer a consent or licence from the surrounding circumstances, even though there is no communication of a consent, a point which may well require reconsideration in the light of the cases referred to in para 45 above).
+Support for such a proposition can be found in R (Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs [2007] UKHL 28, [2008] AC 221, paras 32, 56, 68, 74 and 81.
+The basis of this principle is explained in a number of cases including, Sunningwell, R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] UKSC 11, [2010] 2 AC 70, and, most recently, Barkas, where, at para 21, Lord Neuberger quoted from Lord Hoffmanns opinion in Sunningwell that whether user was as of right should be judged by how the matter would have appeared to the owner of the land, adding that that question should be assessed objectively. 69.
+However, as the decision in Barkas demonstrates, 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 the land concerned was permitted in order for their use to be treated as being by right rather than as of right.
+In Barkas, land had been acquired and in part developed by a local authority for housing purposes under a statute which permitted any undeveloped part of the land so acquired to be used as recreation grounds if appropriate ministerial consent was obtained, which it was.
+The undeveloped part of the land was then used for recreation by members of the public, to whom the statutory purpose was not communicated.
+Despite the absence of any communication of a licence, it was held that local inhabitants were using that undeveloped part of the land by right, and not as of right.
+In Barkas, para 23, Lord Neuberger said that: 70.
+Where land is held [by a local authority] for [the statutory] purpose [of recreation], and members of the public then use the land for that purpose, the obvious and natural conclusion is that they enjoy a public right, or a publicly based licence, to do so.
+If that were not so, members of the public using for recreation land held by the local authority for the statutory purpose of public recreation would be trespassing on the land, which cannot be correct.
+To much the same effect, at para 65, after referring to the general proposition [that] if a right is to be obtained by prescription, the persons claiming that right must by their conduct bring home to the landowner that a right is being asserted against him, Lord Carnwath said: It follows that, in cases of possible ambiguity, the conduct must bring home to the owner, not merely that a right is being asserted, but that it is a village green right.
+Where the owner is a public authority, no adverse inference can sensibly be drawn from its failure to warn off the users as trespassers, if it has validly and visibly committed the land for public recreation, under powers that have nothing to do with the acquisition of village green rights. 71.
+In our judgment, the position in the present case is indistinguishable from that in Barkas for the purpose of deciding whether the use of the land in question by members of the public was as of right.
+In this case, as in Barkas, the legal position, binding on both landowner and users of the land, was that there was a public law right, derived from statute, for the public to go onto the land and to use it for recreational purposes, and therefore, in this case, as in Barkas, the recreational use of the land in question by inhabitants of the locality was by right and not as of right.
+The fact that the right arose from an act of the landowner (in Barkas, acquiring the land and then electing to obtain ministerial consent to put it to recreational use; in this case, to make the Byelaws which implicitly permit recreational use) does not alter the fact that the ultimate right of the public is a public law right derived from statute (the Housing Act 1936 in Barkas; the 1847 Clauses Act and the 1878 Newhaven Act in this case).
+We agree with Lewison LJ, who reached the same conclusion in the Court of Appeal, and said at para 138 that given that the Inspector rightly found that Byelaw 68 was an effective prohibition on swimming in the part of the harbour there referred to, it would be inconsistent then to reject the contention that the Byelaws implied permission for swimming elsewhere in the harbour did not operate as a valid licence. 72.
+By contrast, Richards and McFarlane LJJ considered that the Byelaws had to be communicated to the general public, or at least to the local inhabitants, using the Beach, before they could constitute an effective licence rendering the use by right.
+They took this view at least partly because of the decision and reasoning of the House of Lords in R (Beresford) v Sunderland City Council [2004] 1 AC 889 see paras 82 87 in the judgment of Richards LJ and para 100 in the judgment of McFarlane LJ.
+After the decision of the Court of Appeal in the present case, this court in Barkas disapproved the decision and much of the reasoning in Beresford.
+The disapproval extended to passages quoted by Richards LJ in paras 83 and 84 of his judgment from the opinions of Lord Bingham and Lord Walker. 73.
+Thus, Richards LJ said at para 86, that, if (as he had concluded) on their proper construction the Byelaws impliedly permitted the public to access the harbour and engage in various sports and activities, it did not follow that they had the effect of conferring any right on the public to do those things.
+He went on to explain that, on this basis the Byelaws went no further than to give an implied revocable permission by the harbour authority, as landowner, for such access and activities, and if the authority had fenced off some part of the harbour, thereby preventing access to it, he did not think that a claim could have been maintained against the authority by a member of the public on the basis that the fencing off was in breach of rights conferred on him by the byelaws.
+However, that analysis cannot stand: once one concludes that there is an implied revocable permission for an activity, it follows that there is a licence, which renders the activity in question being carried on by right not as of right.
+The fact that permission can be subsequently withdrawn by an action on the part of the authority, such as fencing off, merely means that, when and if that occurs, the permission is withdrawn, so that any subsequent continuation of the activity concerned becomes a trespass and would therefore normally be as of right.
+The Byelaws: conclusion 74.
+It follows therefore that we would allow NPPs appeal on the second issue, which renders it strictly unnecessary to consider its appeal on the third issue.
+However, as the third issue is an important issue which was fully argued, and we have reached a clear conclusion on it, we consider that it is appropriate to allow the appeal on that ground as well, for reasons to which we now turn.
+Statutory incompatibility: introduction 75.
+NPPs argument is that section 15 of the 2006 Act should not be interpreted as extending to the Harbour because it was reasonably foreseeable that registration of the Beach as a town or village green would conflict with the port authoritys future exercise of its statutory powers.
+This argument, which Ouseley J upheld, was, as we have said, unanimously rejected by the Court of Appeal. 76.
+Section 15 is in Part 1 of the 2006 Act, which extends to all land in England and Wales, with the exception of the New Forest, Epping Forest and the Forest of Dean (section 5), and land includes land covered by water (section 61(1)).
+There is no express exclusion of land held by statutory undertakers for statutory purposes.
+Therefore any restriction on the scope of section 15 would have to be implicit.
+NPP argues that statutory incompatibility provides that restriction.
+In support of its assertion NPP relies on case law in relation to public rights of way and private easements in English law and public rights of way and servitudes in Scots law. 77.
+When considering some of that case law it is important to recall that, in the context of the legislation relating to town and village greens, reference to case law on public rights of way, easements and servitudes is only by way of analogy.
+In Beresford, Lord Scott stated at para 34: It is a natural inclination to assume that these expressions, claiming right thereto (the [Prescription Act 1832], as of right (the [Rights of Way Act 1932] and the [Highways Act 1980] and as of right in the [Commons Registration Act 1965], all of which import the three characteristics, nec vi, nec clam, nec precario, ought to be given the same meaning and effect.
+The inclination should not, however, be taken too far.
+There are important differences between private easements over land and public rights over land and between the ways in which a public right of way can come into existence and the ways in which a town or village green can come into existence.
+To apply principles applicable to one type of right to another type of right without taking account of their differences is dangerous.
+Statutory incompatibility: the English law of dedication and prescription 78.
+The case law therefore needs to be examined with care.
+In English law public rights of way are created by dedication by the owner of the land, whether express, implied or deemed, and by acceptance by the public, usually in the form of user (Sunningwell at pp 351H 353B per Lord Hoffmann; Megarry & Wades The Law of Real Property (8th ed (2012)) para 27 035).
+In such cases, the legal capacity of the landowner to dedicate land for that purpose is a relevant consideration; if the owner had no such power, there could be no dedication.
+Section 1 of the Rights of Way Act 1932 (now section 31(1) of the Highways Act 1980) provided for deemed dedication resulting from 20 years of uninterrupted user unless there was sufficient evidence that the owner had no intention to dedicate.
+In this context where dedication is implied through user, the owners ability to dedicate remains relevant.
+This was stated expressly (in section 1(7) of the 1932 Act and now section 31(8) of the 1980 Act): Nothing in this section affects any incapacity of a corporation or other body or person in possession of land for public or statutory purposes to dedicate a way over that land as a highway if the existence of a highway would be incompatible with those purposes.
+Thus, in British Transport Commission v Westmorland County Council [1958] AC 126, in which a county council sought to assert a public right of way on a footpath across a bridge over a railway line, the issue was whether the railway owners could be deemed to have dedicated the path.
+The House of Lords held that the question whether the power to dedicate was incompatible with the owners statutory objects was a question of fact and was to be assessed by reference to what could reasonably be foreseen. 79.
+Similarly, in the English law of private easements (other than access of light) the capacity of the owner of the potential servient tenement to grant an easement is relevant to prescriptive acquisition.
+As prescription is based on the fiction of a grant, a landowner who could not have granted the claimed easement cannot suffer prescription (see Sunningwell, per Lord Hoffmann at pp 349G 351C in relation to the common law; Housden v Conservators of Wimbledon and Putney Common [2008] EWCA Civ 200, [2008] 1 WLR 1172, paras 43 and 76, per Mummery LJ, and Carnwath LJ respectively, in relation to the 1832 Act; Megarry & Wade op cit at para 28 065; Gale on Easements (19th ed (2012)), paras 4.88 4.91).
+The Law Commission in its 2011 Report, Making Land Work: Easements, Covenants and Profits Prendre (Law Com No 327; HC 1067) while advocating the removal of the fiction of grant, recommended (at para 3.168) that the use of land cannot be qualifying use, for the purposes of prescription, at any time when the land is in the freehold ownership of a person or body who is not competent to grant an easement over it. 80.
+By contrast, the owner of land which others wish to register as a town or village green does not need to have capacity to create such a green.
+All that is required is that people from the relevant locality have used the land as of right for lawful sports and pastimes (Barkas at paras 14 19 per Lord Neuberger).
+Indeed, it was only on the enactment of the 2006 Act that an owner obtained power to register land as a town or village green (section 15(8)).
+Until then an owner could not do so (Barkas at para 68 per Lord Carnwath).
+The landowner could only create the equivalent of a village green by settlement on trust for local inhabitants or the public at large (R v Doncaster Metropolitan Borough Council, Ex p Braim (1986) 57 P & C R 1, 8, per McCullough J).
+Statutory incompatibility: the Scots law of positive and negative prescription 81.
+Faced with this problem NPP turns to the law of Scotland for support for its proposition.
+Again, those authorities which deal with the creation of public rights of way and servitude rights of way have to be handled with care, not least because they come from a separate legal system whose property law is much more closely related to the civil law than the common law of England and Wales.
+None the less, in the field of acquisitive prescription there is a clear analogy with English law as, drawing on the rules of Roman law, the user or possession which grounds prescription must be nec vi, nec clam, nec precario (see McGregor v Crieff Co operative Society Ltd 1915 SC (HL) 93, per Earl Loreburn LC at 98, and Lord Dunedin at 103 104).
+Before the Prescription and Limitation (Scotland) Act 1973 (the 1973 Act) created the modern rules for positive (including acquisitive) prescription and also negative prescription, such prescription was governed by early Scottish statutes of the 16th and 17th centuries, although the period for positive prescription was reduced in the 19th and early 20th centuries.
+At the heart of positive prescription was uninterrupted possession of property.
+But some of the institutional writers of Scots law advanced rationalisations of the law of acquisitive prescription.
+Thus Stair (Institutions II 7.1 and 2) and Erskine (Institutes II 9.3 and III 7.2) spoke of the acquisition of a servitude by prescription as giving rise to a presumption of the owners grant of a title or consent.
+There are also judicial dicta which supported implied grant, presumed grant or presumed consent but, as we shall show, it has long been accepted that the basis of acquisitive prescription of a positive servitude or a public right of way is uninterrupted user as of right for the prescriptive period.
+We deal first with public rights of way and then private servitudes.
+In Scots law a public right of way can be constituted without any actual or fictional dedication by the owner of the land.
+Before the period of positive prescription was reduced, user by the public as a matter of right, continuously and without interruption for 40 years was sufficient to create such a right of way (Mann v Brodie (1885) 10 App Cas 378, per Lord Blackburn 387 388 and Lord Watson 390 391; (1885) 12 R (HL) 52, 54 55 and 57).
+Lord Watson explained it thus (pp 390 391): 82.
+According to the law of Scotland, the constitution of such a right does not depend upon any legal fiction, but upon the fact of user by the public, as matter of right, continuously and without interruption, for the full period of the long prescription.
+I am aware that there are dicta to be found, in which the prescriptive acquisition of a right of way by the public is attributed to implied grant, acquiescence by the owner of the soil, and so forth; but these appear to me to be mere speculations as to the origin of the rule, and their tendency is to obscure rather than to elucidate its due application to a case like the present. 83.
+Lord Watsons clarification led to the leading case in Scotland on statutory incompatibility, to which we turn.
+In Magistrates of Edinburgh v North British Railway Co (1904) 6 F 620 the First Division of the Court of Session dealt with a claim that a railway company, which was a statutory undertaker, was obliged to maintain a railway bridge over which a public right of way was asserted.
+The Court held that there was insufficient evidence of public user for 40 years.
+But it also held that the public could not acquire a public right of way over the railway by user because it was incompatible with the statutory purposes of the railway company.
+Lord Kinnear, with whom the Lord President (Lord Kinross), Lord Adam and Lord McLaren concurred, gave the opinion of the court.
+He accepted Lord Watsons explanation of the basis of acquisitive prescription when he stated (at pp 636 637): I am of opinion, in the first place, that no right of way can be acquired by user over the line of the defenders railway, and especially at a point where the railway traffic is so great as on the main line close to Portobello station.
+It must always be presumed that if people having no statutory right of any kind have been allowed to cross the line, their passage is permitted only so long as it does not interfere with the purposes of the railway traffic.
+I am of opinion that no such right can be maintained, and that on the same principle on which it has been repeatedly held that a railway company cannot voluntarily grant a right inconsistent with the performance of the purposes for which it acquired its land.
+I assent entirely to the doctrine laid down by Lord Watson that the reference to the prescriptive right of way to an implied grant is a juridical speculation to account for an established rule, and not itself a rule of law.
+But at the same time I do not think it possible that a right of way which it would be ultra vires to grant can be lawfully acquired by user. 84.
+In so holding, the First Division upheld the decision of the Lord Ordinary, Lord Kincairney, in that case, who in Kinross County Council v Archibald (1899) 7 SLT 308 had relied on Lord Watsons approach in Mann v Brodie to reject any idea of an implied grant as the legal basis of the assertion of a right of way through user. 85.
+Shortly before the First Division handed down their opinion in Magistrates of Edinburgh the same Division of the Inner House (comprising the same judges) reached a similar conclusion in relation to an assertion of a private servitude right of way by apparently different but not inconsistent reasoning.
+In Ellices Trustees v The Commissioners of the Caledonian Canal 1904 6 F 325, the First Division considered an assertion by the owners of a landed estate through which the Caledonian Canal passed that they had obtained by user during the prescriptive period of 40 years a servitude right of way over the towpath of the canal.
+The commissioners, in the exercise of statutory powers to construct and maintain the canal, had constructed a weir, which intersected the towpath, to allow floodwater to escape.
+The owners sought declarations that they were entitled to use the towpath for access and that the commissioners were obliged to maintain that access road and construct a bridge or other passage over the weir.
+The court rejected their claim, holding that the slight use made of the towpath, which did not inconvenience the commissioners, was not sufficient to create a servitude right of way.
+The Lord President (with whom the other judges concurred) also held that the commissioners did not have the power to grant a right of way which was not compatible with the exercise of their statutory duties.
+He stated (p 335): I think, however, that even if the character of the use of the towing path of the canal had been such as might otherwise have constituted a public or servitude right of passage, the admitted circumstances of the case are such as to exclude any such a result.
+The Commissioners of the canal, as already stated, hold, and always have held, the canal banks for the purposes of the canal, and they have not now, and never had, any right either to alienate them or to agree that they should be subjected to any uses which were or might become inconsistent with or adverse to the use of the banks for their proper purpose videlicet, the containing and working of the canal.
+He continued (p 336): And if it would be ultra vires of them to make such an express grant, an effective grant could not be inferred from any such user by the pursuers and their authors as is alleged to have been permitted or tolerated in the present case. 86.
+In Ellices Trustees the court followed a line of authority, which included Ayr Harbour Trustees v Oswald (1883) 8 App Cas 623, (1883) 10 R (HL) 85, that a statutory body had no power to alienate lands which it had acquired for a statutory purpose or to grant any right over such land which was inconsistent with its use for statutory purposes.
+The courts reliance on that case might suggest that it considered that the acquisition of a servitude right of way by prescription was based on implied grant.
+But the reclaimers counsel cited both Mann v Brodie and Kinross County Council in their submissions, and the Lord President stated (again at p 336): I further agree with the Lord Ordinary in thinking that even if a limited and qualified right of user of the canal banks had been acquired by prescription, that right could not be allowed to come into competition with, or to prevail against, the rights possessed by the [commissioners] and the statutory duties which are imposed upon them. 87.
+The case is thus consistent with the approach the court went on to take in Magistrates of Edinburgh that statutory incompatibility could bar acquisitive prescription.
+In British Transport Commission Lord Keith of Avonholm (at pp 164 165) commented on Lord Kinnears opinion in Magistrates of Edinburgh, suggesting that it would be going too far to hold that the public could never acquire a right of way over railway property but acknowledging that incompatibility with the conduct of traffic on the railway could bar a public right of passage.
+He opined (p 166) that incompatibility was a question of fact and that it was for the statutory undertaker to prove incompatibility. 88.
+Since those cases, the Scots law of prescription has been reformed by statutory provision.
+The 1973 Act sets out the modern Scots law of positive prescription.
+Section 3(2) provides: If a positive servitude over land has been possessed for a continuous period of twenty years openly, peaceably and without judicial interruption, then, as from the expiration of that period, the existence of the servitude as so possessed shall be exempt from challenge.
+Section 3(3) provides essentially the same basis for the creation of a public right of way by prescription.
+In contrast with the provisions for the short negative prescription of five years which in section 6(4)(b) excludes from the prescriptive period any period in which the original creditor is under a legal disability, by reason of non age or disability of mind, such disability on the part of a landowner does not prevent the operation of positive prescription against him.
+This approach to positive prescription by possession following on a recorded title was expressly stated in earlier statutes, including section 16 of the Conveyancing (Scotland) Act 1924 which provided that periods of legal disability were not to be deducted from the prescriptive period.
+It applies ex silentio to such prescription in sections 1, 2 and 3(1) of the 1973 Act and extends to prescription by possession without title under section 3(2) and (3).
+Thus in the Scottish statutory scheme, the lack of legal capacity to grant a public right of way or a servitude of way is of itself not relevant.
+In this respect the Scottish statute differs from the English law of prescription as section 7 of the 1832 Act excludes from the computation of the period of, among others, the 20 year prescription under section 2 any time during which a person was incapable of resisting a claim because he was an infant or otherwise disabled as specified.
+But we note that neither the 1832 Act nor the Scottish 1973 Act addresses the issue of statutory incompatibility.
+It is not necessary in this appeal, which concerns English law, to express any view on whether in Scots law the doctrine of statutory incompatibility has survived the enactment of the 1973 Act.
+It suffices to note that it is a matter of controversy.
+Professor David Johnston in his scholarly Prescription and Limitation 2nd ed (2012) questions the continued relevance of the Scottish case law to which we have referred (para 19.27) while Professor Cusine and Professor Paisley, Servitudes and Rights of Way (1998) support the case law on the ground of inconsistency with the statutory purpose for which the servient owner holds the land (para 4.02).
+Professor Gordon, Scottish Land Law 2nd ed (1999) (paras 24.54 and 24.130) also sees statutory incompatibility or incapacity to grant as a bar to acquisitive prescription.
+Professor Reid, The Law of Property in Scotland (1996) (at para 449) states: When land has been acquired compulsorily for certain purposes, this precludes the creation of any servitude rights the exercise of which could be prejudicial to these purposes.
+But he does not repeat this assertion in his discussion of acquisition of such rights by prescription under the 1973 Act (paras 458 461).
+Statutory incompatibility: statutory construction 91.
+As we have said, the rules of prescriptive acquisition apply only by analogy because Parliament in legislating for the registration of town and village greens has chosen similar wording (indulging as of right in lawful sports and pastimes) in the 1965 and 2006 Acts.
+It is, none the less, significant in our view that historically in both English law and Scots law, albeit for different reasons, the passage of time would not give rise to prescriptive 89. 90. acquisition against a public authority, which had acquired land for specified statutory purposes and continued to carry out those purposes, where the user founded on would be incompatible with those purposes.
+That approach is also consistent with the Irish case, McEvoy v Great Northern Railway Co [1900] 2 IR 325, (Palles CB at 334 336) which proceeded on the basis that the acquisition of an easement by prescription did not require a presumption of grant but that the incapacity of the owner of the servient tenement to grant excluded prescription.
+In this case if the statutory incompatibility rested only on the incapacity of the statutory body to grant an easement or dedicate land as a public right of way, the Court of Appeal would have been correct to reject the argument based upon incompatibility because the 2006 Act does not require a grant or dedication by the landowner.
+But in our view the matter does not rest solely on the vires of the statutory body but rather on the incompatibility of the statutory purpose for which Parliament has authorised the acquisition and use of the land with the operation of section 15 of the 2006 Act. 92. 93.
+The question of incompatibility is one of statutory construction.
+It does not depend on the legal theory that underpins the rules of acquisitive prescription.
+The question is: does section 15 of the 2006 Act apply to land which has been acquired by a statutory undertaker (whether by voluntary agreement or by powers of compulsory purchase) and which is held for statutory purposes that are inconsistent with its registration as a town or village green? In our view it does not.
+Where Parliament has conferred on a statutory undertaker powers to acquire land compulsorily and to hold and use that land for defined statutory purposes, the 2006 Act does not enable the public to acquire by user rights which are incompatible with the continuing use of the land for those statutory purposes.
+Where there is a conflict between two statutory regimes, some assistance may be obtained from the rule that a general provision does not derogate from a special one (generalia specialibus non derogant), which is set out in section 88 of the code in Bennion, Statutory Interpretation 6th ed (2013): Where the literal meaning of a general enactment covers a situation for which specific provision is made by another enactment contained in an earlier Act, it is presumed that the situation was intended to continue to be dealt with by the specific provision rather than the later general one.
+Accordingly the earlier specific provision is not treated as impliedly repealed.
+While there is no question of repeal in the current context, the existence of a lex specialis is relevant to the interpretation of a generally worded statute such as the 2006 Act. 94.
+There is an incompatibility between the 2006 Act and the statutory regime which confers harbour powers on NPP to operate a working harbour, which is to be open to the public for the shipping of goods etc on payment of rates (section 33 of the 1847 Clauses Act).
+NPP is obliged to maintain and support the Harbour and its connected works (section 49 of the 1847 Newhaven Act), and it has powers to that end to carry out works on the Harbour including the dredging of the sea bed and the foreshore (section 57 of the 1878 Newhaven Act, and paras 10 and 11 of the 1991 Newhaven Order). 96. 95.
+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 and enjoyment as a place for exercise and recreation section 12 of the Inclosure Act 1857 or to encroach on or interfere with the green section 29 of the Commons Act 1876.
+See the Oxfordshire case [2006] 2 AC 674, per Lord Hoffmann at para 56.
+In this case, which concerns a working harbour, it is not necessary for the parties to lead evidence as to NPPs plans for the future of the Harbour in order to ascertain whether there is an incompatibility between the registration of the Beach as a town or village green and the use of the Harbour for the statutory purposes to which we have referred.
+Such registration would clearly impede the use of the adjoining quay to moor vessels.
+It would prevent the Harbour authority from dredging the Harbour in a way which affected the enjoyment of the Beach.
+It might also restrict NPPs ability to alter the existing breakwater.
+All this is apparent without the leading of further evidence. 97.
+NPP has also suggested that vessels en route to and from other parts of the port might have to reduce speed in circumstances where such reduction would not be desirable to maintain the stability of the vessels.
+It also led evidence of proposals to unload materials for an offshore windfarm on the Beach.
+But we do not need to consider such matters in order to determine that there is a clear incompatibility between NPPs statutory functions in relation to the Harbour, which it continues to operate as a working harbour, and the registration of the Beach as a town or village green. 98.
+The County Council referred to several cases which supported the view that land held by public bodies could be registered as town or village greens.
+In our view they can readily be distinguished from this case.
+In New Windsor Corporation v Mellor [1975] Ch 380, the Court of Appeal was concerned with the registration of Bachelors Acre, a grassed area of land in New Windsor, as a customary town or village green under the 1965 Act.
+The appeal centred on whether the evidence had established a relevant customary right.
+While the land had long been in the ownership of the local council and its predecessors, it was not acquired and held for a specific statutory purpose.
+It had been used for archery in mediaeval times and had been leased for grazing subject to the recreational rights of the inhabitants.
+In recent times it had been used as a sports ground and more recently it was used as to half as a car park and half as a school playground.
+No question of statutory incompatibility arose. 99.
+The Oxfordshire case concerned the Trap Grounds, which were nine acres of undeveloped land in North Oxford comprising scrubland and reed beds.
+The land was, as Lord Hoffmann stated (in para 2) not idyllic.
+More significantly, while the City Council owned the land and wanted to use a strip on the margin of it to create an access road to a new school and to use a significant part of the land for a housing development, there was no suggestion that it had acquired and held the land for specific statutory purposes that might give rise to a statutory incompatibility. 100.
+Thirdly, the County Council referred to Lewis v Redcar, which concerned land at Redcar owned by a local authority which had formerly been leased to the Cleveland golf club as part of a links course but which local residents also used for informal recreation.
+The council proposed to redevelop the land in partnership with a house building company as part of a coastal regeneration project involving a residential and leisure development.
+Again, there was no question of any statutory incompatibility.
+It was not asserted that the council had acquired and held the land for a specific statutory purpose which would be likely to be impeded if the land were to be registered as a town or village green. 101.
+In our view, therefore, these cases do not assist the respondents.
+The ownership of land by a public body, such as a local authority, which has statutory powers that it can apply in future to develop land, is not of itself sufficient to create a statutory incompatibility.
+By contrast, in the present case the statutory harbour authority throughout the period of public user of the Beach held the Harbour land for the statutory harbour purposes and as part of a working harbour. 102.
+In this context it is easy to infer that the harbour authoritys passive response to the use by the public of the Beach was evidence of an implicit permission so long as such user did not disrupt its harbour activities.
+This is consistent with our view of the byelaws which we have discussed above.
+There has been no user as of right by the public of the Beach that has interfered with the harbour activities.
+If there had been such an assertion of right it would not avail the public, because the 2006 Act cannot operate in respect of the Beach by reason of statutory incompatibility.
+Conclusion 103.
+The poet Ovid spoke of time as the devourer of things (tempus edax rerum.
+Metamorphoses 15.234).
+In the English law of prescription, user as of right can over time eat into a landowners freedom to use land.
+So too can the 2006 Act.
+In this case, however, we conclude that, assuming that there is no general common law right for the public to use the foreshore for bathing and associated recreational activities, the user was by permission in the light of the Byelaws, and that in any event the 2006 Act cannot operate by reason of incompatibility with the statutory basis on which NPPs predecessors acquired the land, and the statutory purposes for which they held, and now NPP holds, that land. 104.
+We therefore would allow the appeal and set aside the order of the Court of Appeal dated 27 March 2013.
+LORD CARNWATH: 105.
+As will become apparent, I agree that the appeal should be allowed under ground (ii) for the reasons given by Lord Neuberger and Lord Hodge.
+While I agree that we need not reach a conclusion on ground (i), I think it useful also to comment on some of the more general issues discussed in argument, which have not previously been considered at this level and which may become relevant in other cases.
+Bathing rights on the foreshore 106.
+At least since Brinckman v Matley [1904] 2 Ch 313, the decision of the Court of Kings Bench in Blundell v Catterall (1821) 5 B & Ald 268 has been taken as establishing at Court of Appeal level that under English law the public has no general right to go onto the foreshore for the purpose of bathing or other recreation.
+In the words of the 1904 headnote: The public have no common law right to use the foreshore or to pass and repass thereon for the purpose of bathing in the sea, whether the foreshore is the property of the Crown or of a private owner.
+Not even the strong dissenting judgment of Best J in the earlier case, the advocacy of a future Lord Chancellor (Buckmaster KC), nor the criticism of three textbook writers cited by him (p 320), were sufficient to persuade the court to revisit the issue, or even to call on opposing counsel.
+The members of the court were unanimous in their praise for the model judgment of Holroyd J, regarded it seems as one of the finest examples of how a judgment should be expressed (p 323).
+Only Cozens Hardy LJ, while observing that the principles laid down in that case have never since been questioned by any authority to which our attention has been called, was prepared to concede that the point might be open for reconsideration by the House of Lords (p 327). 107.
+No doubt because judicial fashions have changed, I confess that I do not find the enthusiasm of the Court of Appeal for the judgment of Holroyd J altogether easy to share.
+Its erudite analysis of extracts from Justinian, Bracton, and Hale, and of obscure exchanges between the court and counsel in some early English cases, makes rather heavy reading to modern eyes. 108.
+It is also difficult to find the basis of the assertion by Vaughan Williams LJ that the majority judgments in the earlier case had been recognised ever since by the whole of the profession as an accurate and binding assertion of the law (p 322).
+In the intervening century, recreational use of the foreshore and the associated beaches had become an even more wide spread and popular activity.
+As far as one knows, the public had continued to enjoy the pleasures of the beach without interference, and without anyone suggesting that they were mere trespassers.
+There is no record of anyone relying on the judgment in Blundell v Catterall to restrict such use.
+Nor were we referred to any evidence of support from legal commentators to set against the three sources relied on by the appellants (Hall on the Seashore, Phears Rights of Water, and Stuart Moore on the Foreshore). 109.
+Furthermore, as Vaughan Williams LJ acknowledged (p 322) the actual issue in the earlier case had been narrower than that facing his court.
+It had been, not the general right of the public to bathe on the foreshore, but their right to bring on to the beach bathing machines for that purpose, and to do so in an area where it conflicted with private rights of fishing with stake nets.
+On the same page, Vaughan Williams LJ also cited the short statement by Abbott CJ of what the decision of the court was: that is, where one man endeavours to make his own special profit by conveying persons over the soil of another, and claims a public right to do so he has no reason to complain if the owner of the soil shall insist upon participating in the profit .
+On that footing the case was about commercial exploitation of the beach, rather than the publics right to its recreational use. 110.
+As appears from the dissenting judgment of Best J in the earlier case (p 279), it had been found as a fact that there was a custom for the public to cross the spot in question on foot for the purpose of bathing.
+That usage as such was not apparently in issue.
+The problem arose because of the associated need for bathing machines, use of which at that time was seen as essential to the practice of bathing (Decency must prevent all females, and infirmity many men, from bathing, except from a machine).
+Even the judgment of the majority was not seen by them as restricting the established right of access to bathing on foot: The right is claimed on the pleadings, as founded not on usage or custom, but upon the supposed general law only; and the usage, as stated in the special case, is found to have been for the public to cross the sea shore on foot only, for the purpose of bathing, no bathing machines having ever been used in Great Crosby, where the locus in quo is situate, before the establishment of the present hotel.
+My opinion, therefore, on this case, will not affect any right that has been or can be gained by prescription or custom, either by individuals or by either the permanent or temporary inhabitants of any village, parish, or district. (p 289, per Holroyd J) It is unfortunate that neither in that case, nor in any of the later cases relying on it, was there any discussion of the legal basis of such a hypothetical right gained by prescription or custom. 111.
+This was a point touched on by the first of the textbook writers, Robert Hall, a barrister of Lincolns Inn.
+In his 1830 treatise An essay on the rights of the Crown and the privileges of the subject in the sea shore of the realms, he devoted some 40 pages of a supplemental chapter to a detailed criticism of the majority judgments.
+He was troubled (p 219) by the implications of Holroyd Js acceptance that there might be a local usage or custom of bathing, and the difficulty of distinguishing such a custom from one available to the public generally.
+It would be singular to denominate this a collection of local customs.
+He compared fishing on the seashore which, though likely to be practised by local inhabitants, was accepted as a general rather than a purely local right.
+It would be strange, he said, to treat the right to bathe any differently. 112.
+More generally, he noted that much of Holroyd Js discussion was devoted to criticisms of Bractons exposition of the law relating to river banks, rather than the passages directly concerned with the public right over the sea shore.
+He commented: The reasoning, therefore, seems to have been this, Bracton was wrong in his law that Riparum usus communis est &c therefore littorum usus non est communis.
+But this is certainly a non sequitur; and although the court, from the authorities, proved Bracton wrong, to a certain extent in his law respecting particular uses made of banks of rivers (as for towage), yet no authorities were adduced shewing that communis usus of the sea shore for bathing is not a good custom. (pp 191 192) Best J, by contrast, had preferred to see Bractons writings on this issue as derived not so much from the civil or common law, as from the law of all civilised nations (p 281). 113.
+As to judicial authorities, the only judgment cited to the court in which Blundell v Catterall had been followed without question was Llandudno Urban Council v Woods [1899] 2 Ch 705, but that was at first instance, and it was concerned, not with bathing or general recreation, but with the holding of religious services on the beach. 114.
+More significant in the present context is Mace v Philcox (1864) 15 CB(NS) 600, which was cited to the Court of Appeal but not mentioned in their judgments.
+As appeared from the case stated, it was accepted that the sea beach or foreshore throughout the whole length of the borough of Hastings, including the locus in quo had been used from time immemorial by the public as a place of public resort (p 603), subject only to the corporations statutory powers to regulate the use by byelaws.
+The issue was simply as to the right of the defendant to place bathing machines on a part of the foreshore in private ownership, it being accepted that such a right existed on adjoining land owned by the corporation.
+Although Blundell v Catterall was cited on that point, the court did not evidently read it as settling any wider issue; rather Erle CJ was desirous of guarding (his) judgment so as not to restrict the valuable usage or right of her Majestys subjects to resort to the sea shore for bathing purposes (p 614 per Erle CJ). 115.
+Against this background the unwillingness of the Court of Appeal in 1904 to reopen the issue seems both surprising and disappointing.
+Scotland 116.
+The hearing in Brinckman v Matley took place on 13 July 1904.
+The judgments appear to have been given on the same day.
+By a curious coincidence, three days later a similar issue (relating to shooting wildfowl on the foreshore) was considered by the Court of Session in Scotland (Hope v Bennewith (1904) 6 F 1004).
+Although Brinckman v Matley is noted in a footnote to the report (p 1008), it seems highly improbable that the detail of those judgments would have been available at the hearing.
+In any event, counsel was able to submit, apparently without contradiction, that Blundell v Catterall had been much criticised and followed with reluctance (p 1010).
+He relied (inter alia) on Mace v Philcox and various textbook writers, including those cited to the English Court of Appeal.
+The court did not comment on the authorities, but proceeded on the basis of an admitted public right to use the foreshore (p 1010) without considering its precise scope. 117.
+It seems that from the middle of the previous century, Scottish law had begun to recognise a public right to use the foreshore for recreation, without feeling inhibited by authorities from the other side of the border.
+In 2001, the Scottish Law Commission reviewed the cases, beginning with Officers of State v Smith (1846) 8 D 711), and concluded that such a right was well supported by authority.
+The precise scope of the right was not clear: It appears to include walking and running, having a picnic or barbecue, sunbathing and swimming.
+While it does not include the right to put up a hut on the shore, it does include the right to shoot wildfowl.
+The sale of refreshments on the beach is outwith the scope of the right. (Discussion Paper No 113 Uses of the Foreshore para 4(25)) 118.
+By the time of the Commissions final report (report 190 (2003)) its recommendations had to some extent been overtaken by the enactment of the Land Reform (Scotland) Act 2003 which conferred general rights of access to land for recreational purposes, land for this purpose being defined as including the foreshore (section 32).
+None the less it was recommended that the common law rights, which were regarded as more extensive than the new access rights, should themselves be put on a separate statutory footing (para 3.1 17).
+Comparative jurisprudence 119.
+At the end of the hearing in the present case, the court offered Mr George QC the opportunity to provide information about the practice in other common law jurisdictions.
+He did not take up that invitation, perhaps in the understandable fear of opening up a Pandoras box.
+Some comparative material can, however, be found in the appendix to the Scottish Law Commissions 2001 Discussion Paper.
+That has been supplemented since the hearing in this case by some further work by our own judicial assistants, particularly relating to the United States of America.
+This research is far from exhaustive, and, since it is not material to our conclusion in the present case, it has not been thought necessary to invite comments from the parties.
+However, as it may be of relevance to future cases, it seems desirable to make a brief reference to some of the main points. 120.
+Appendix 2 to the Scottish Law Commissions Discussion Paper contained a short review of the law relating to the foreshore, including rights of recreation, in various jurisdictions.
+This shows little consistency of approach.
+In the European countries mentioned (France, Germany, Norway, Spain) recreation on the sea shore seems generally to be regulated by statute.
+Of the common law countries referred to (Canada, England & Wales, New Zealand), the English position unsurprisingly is defined by reference to Blundell v Catterall; and the position in Canada is said to be unclear (para 31). 121.
+Of more interest is New Zealand, where reference (para 156) is made to a case from the 19th century, Crawford v Lecren [1868] NZLA 117.
+In that case the Court of Appeal held, in reliance on Blundell v Catterall, that there was no right for the public to load and unload goods on the foreshore.
+The court seems to have attached particular weight to the support for this proposition of Best J, as well as of the majority (pp 128 129).
+The Commission also notes (paras 159 162) that in New Zealand public access to the foreshore is preserved through the concept of the Queens Chain, a strip of land up to 20 metres wide, measured from the high water mark of spring tide.
+The concept, which has had varying acceptance, and is now implemented by statute, is said to find its origins in an instruction of Queen Victoria given in 1840.
+United States 122.
+The Commission did not look at the position in the United States.
+It says something for the degree of interchange in the early 19th century between the legal communities on either side of the Atlantic, that Halls criticisms of Blundell v Catterall case were being cited with approval in the following year in an academic article: 3 US Law Intelligencer & Review 114 1831. (The US Law Intelligencer and Review was a periodical edited by one Joseph K Angell, who was born in the United States but lived in England from 1819 to 1824.
+He founded the periodical in 1829, which ran monthly for three years.) The article quoted extensively from the treatise, and praised its author for his zeal and ability in combatting a judicial decision which would abridge the publics undoubted right of indulging in the favourite and healthful practice of bathing in the sea. 123.
+Somewhat paradoxically, although the subsequent development of the law has varied between the states, it was to the English common law that the judges in later cases looked for the foundation for recognition of public rights of recreation over the foreshore.
+Thus in Florida, in White v Hughes 139 Fla 54, 59, 190 So 446 (1939), Brown J observed: There is probably no custom more universal, more natural or more ancient, on the sea coasts, not only of the United States, but of the world, than that of bathing in the salt waters of the ocean and the enjoyment of the wholesome recreation incident thereto.
+The lure of the ocean is universal; to battle with its refreshing breakers a delight After quoting Byron on the primeval quality of the wild waves play (Childe Harolds Pilgrimage IV, 182) he continued: The constant enjoyment of this privilege of thus using the ocean and its fore shore for ages without dispute should prove sufficient to establish it as an American common law right, similar to that of fishing in the sea, even if this right had not come down to us as a part of the English common law, which it undoubtedly has (p 449 emphasis added). 124.
+A more sophisticated (if less poetic) discussion of the development of the law up to 1969 can be found in the Yale Law Journal (William Dayton The Public Trust in Tidal Areas: a Sometime Submerged Traditional Doctrine (1970) 79 YLJ 762).
+The author traced the history of the law from its Roman roots, through Magna Carta, to the more modern law in England and America.
+Of Blundell v Catterall he said: This exclusion from common law protection of an ancient and customary right is a prime example of the needless exclusion of an activity.
+He noted that the State of Oregon in particular had seized the customary usage opening and widened it (citing inter alia State ex rel Thornton v Hay 89 Ore 887 (1969)) (p 784 785).
+He ended by suggesting that the common law of the foreshore seemed to be entering a major period of reformulation, which he described as a sharp acceleration of the process begun by Magna Carta.
+He looked forward to the day when common law citizens will have as many rights in the foreshore as Roman citizens once did (p 785 789). 125.
+The decision of the Oregon Supreme Court in Thornton, which may have provided a stimulus for that article, concerned the publics right to recreational use of what was described as the dry sand area, that is the privately owned area of beach between the vegetation line, and the state owed foreshore (or wet sand area) in which the publics paramount right was not in dispute.
+The court accepted that the dry sand area had been enjoyed by the general public as a recreational adjunct of the foreshore area since the beginning of the states political history, and before that by aboriginal inhabitants using the foreshore for clam digging and the dry sand area for their cooking fires.
+The majority upheld the public right over that area, by reference to the English doctrine of custom (as enunciated in Blackstones Commentaries), preferring that basis of decision to one based on prescription.
+The minority (Denecke J) arrived at the same result, relying simply on long usage by the public of such dry beaches, combined with long and universal belief by the public in their right to that use, and long and universal acquiescence in it by the owners.
+The narrower English law on customary rights was distinguished as appropriate for a small island nation at a time when most inhabitants lived and died within a days walk from their birthplace, as compared to the vast geography of this continent and the freshness of its civilisation. 126.
+New Jersey is perhaps of greater interest because of the development of the law by the courts relying on the so called public trust doctrine, using language not dissimilar to that of Best J in the English case.
+He had spoken of the public trust in such property: From the general nature of this property, it could never be used for exclusive occupation.
+It was holden by the King, like the sea and the highways, for all his subjects.
+The soil could only be transferred, subject to this public trust; and general usage shews that the public right has been excepted out of the grant of the soil (p 287).
+The Court of Appeal in Brinckman v Matley accepted that the Crown holds the foreshore on the terms that it must recognise the jus publicum whatever it may be but saw that as limited by authority to rights of navigation and fishing (p 325). 127.
+A recent review of the New Jersey authorities comes in the judgment of the New Jersey Supreme Court, in Raleigh Avenue Beach Association v Atlantis Beach Club Inc 879 A 2d 112 (2005).
+The court (p 119) traced the history of the public trust doctrine to their decision in Arnold v Mundy (1821) 6 NLJ 1.
+That case, decided as it happens in the same year as Blundell v Catterall, concerned a claim to rights in an oyster bed.
+The court had explained that following independence the English sovereign's rights to the tidal waters had become vested in the people of New Jersey as the sovereign of the country, and that the land on which water ebbs and flows, including the land between the high and low water, belonged to the State, to be held, protected, and regulated for the common use and benefit. 128.
+More recently, in Borough of Neptune City v Borough of Avon by the Sea, 61 NJ 296, 303, 294 A 2d 47 (1972), the same court had referred to the roots of that principle in Roman jurisprudence, which held that by the law of nature . the air, running water, the sea, and consequently the shores of the sea, were common to mankind, and had extended the public rights in tidal lands to recreational uses, including bathing, swimming and other shore activities.
+That extension had been approved in Matthews v Bay Head Improvement Association 95 NJ 306 (1984), in which the court had gone on to consider the extent of the public's interest in privately owned dry sand beaches, in particular its right to cross such beaches in order to gain access to the foreshore (p 323).
+The court had also affirmed the concept already implicit in our case law that reasonable access to the sea is integral to the public trust doctrine.
+There was reference to the dissenting judgment of Best J in Blundell v Catterall (without reference to the majority judgments) for the proposition that the particular circumstances must be considered and examined before arriving at a solution that will accommodate the publics right and the private interests involved (p 324). 129.
+In Raleigh itself, following Matthews, the court applied the principle that the public use of the upland sands is subject to an accommodation of the interests of the owner, to be determined by case to case consideration (pp 120 121).
+It repeated the following statement from Matthews: Archaic judicial responses are not an answer to a modern social problem.
+Rather, we perceive the public trust doctrine not to be fixed or static, but one to be molded and extended to meet changing conditions and needs of the public it was created to benefit Precisely what privately owned upland sand area will be available and required to satisfy the public's rights under the public trust doctrine will depend on the circumstances.
+Location of the dry sand area in relation to the foreshore, extent and availability of publicly owned upland sand area, nature and extent of the public demand, and usage of the upland sand land by the owner are all factors to be weighed and considered in fixing the contours of the usage of the upper sand.
+Today, recognizing the increasing demand for our State's beaches and the dynamic nature of the public trust doctrine, we find that the public must be given both access to and use of privately owned dry sand areas as reasonably necessary.
+While the public's rights in private beaches are not co extensive with the rights enjoyed in municipal beaches, private landowners may not in all instances prevent the public from exercising its rights under the public trust doctrine.
+The public must be afforded reasonable access to the foreshore as well as a suitable area for recreation on the dry sand. (Matthews p 326) Comparative material summary 130.
+This review of the comparative jurisprudence is of interest, on the one hand for the apparently universal recognition of the recreational use of the foreshore in practice, but on the other for the continuing uncertainty in many jurisdictions as to the legal basis for that use and the wide variety of legal methods (statutory or judicial) used to resolve it.
+This divergence seems surprising, given the universality of the practice, and the common roots of most of the systems of law considered, either in Roman law, or in the rights and obligations of the Crown under the English common law.
+In the common law jurisdictions this confusion seems in part to be the legacy of Blundell v Catterall.
+Although the authority of that decision has been acknowledged in some common law jurisdictions, there is little evidence of it being given practical application so as to restrict use on the ground.
+The development of the law in New Jersey is of particular interest as an illustration of how the law in this country might have developed (and might yet develop) if the view of Best J had prevailed over that of the majority.
+Usage, custom or implied licence 131.
+It remains to consider what lessons can be drawn for the present case.
+In the absence of argument to the contrary we must proceed on the basis that Blundell v Catterall and Brinckman v Matley were rightly decided.
+It follows that public use of the West Beach during the relevant period cannot be attributed to a general public right to use the foreshore for recreational purposes.
+Leaving aside the arguments relating to the bye laws under the second issue, there are three possibilities: (a) some form of prescriptive or customary right (b) implied licence (as found by Lewison LJ) (c) trespass tolerated or acquiesced in by the owners (as found by the majority of the Court of Appeal). 132.
+I mention (a), which is not supported by any of the parties, because it is a possibility left open by the majority in Blundell v Catterall.
+While it may not be appropriate to the relatively recent use found in this case, it might be relevant as an alternative explanation of long standing recreational uses of beaches more generally.
+However, as I have said, the legal basis for such a right is unclear.
+A right gained by prescription, as generally understood, would have had to be related to a particular property, which would not have explained the more general usage found in the case.
+The alternative, a custom claimed by the inhabitants of any village, parish or district, would accord with the principle that a custom should be linked to a particular locality, rather than for the benefit of the public in general.
+That was a familiar feature of the law of village greens, which in due course was repeated in the definition of customary village greens in the Commons Registration Act 1965.
+However, quite apart from the criticisms made by Robert Hall in 1830, there seems to have been nothing in the actual findings before the court to support such a limitation. 133.
+Explanation (c) that those who use public beaches for recreation without specific authorisation do so as mere trespassers defies common sense.
+It flies in the face of public understanding, and the reality of their use of the beaches of this country for the last three hundred years or more. 134.
+Explanation (b) accords with the view of Lewison LJ in the present case.
+He said he thought that the foreshore should be treated as a special case, for a number of reasons: i) The nature of the land is such that it cannot readily be enclosed.
+It would be wholly impractical to attempt to enclose it on the seaward side; and even on the landward side any attempt would be fraught with difficulty. ii) Historically the foreshore has been Crown property (although there are private persons who derive title from the Crown) and the Crown would not, in practice, prevent citizens from resorting to the foreshore for recreational purposes.
+This has been the case since time immemorial, and in those circumstances it is not unreasonable to presume that the Crown has implicitly licensed such activities. iii) Even where the owner of the foreshore does attempt to enforce his strict legal rights, there are serious impediments in obtaining an injunction. iv) Although in theory it is possible to prescribe for rights over the foreshore or to establish a customary right, there is no case in the books where a recreational right over the foreshore has been established. v) It would take very little, having regard to the nature of foreshore and the manner in which it is generally enjoyed, to draw the inference that use is permissive by virtue of an implied licence. 129.
+Even if this is not, on its own, an independent reason for concluding that the use of the foreshore in this case is precario, it does in my judgment provide the context in which the byelaws are to be interpreted. 135.
+I agree, but I would put the emphasis on the point (v).
+It is the character of the foreshore and the use which is traditionally made of it, without question or interference, which leads to the natural inference that it is permitted by the owners in accordance with that tradition.
+As I said in Barkas (para 61 referring to comments of Lord Scott in Beresford [2004] 1 AC 889, para 34): Lord Scott's analysis shows that the tripartite test cannot be applied in the abstract.
+It needs to be seen in the statutory and factual context of the particular case.
+It is not a distinct test, but rather a means to arrive at the appropriate inference to be drawn from the circumstances of the case as a whole.
+Applying that approach to public use of beaches generally, I see no difficulty in drawing the obvious inference, in the absence of evidence to the contrary, that their use, if not in exercise of a public right, is at least impliedly permitted by the owners, rather than a tolerated trespass. 136.
+That general approach cannot necessarily be applied without question to the present case.
+This is not an historic beach, but one created artificially in relatively recent times, as a consequence of the statutory harbour works.
+Nor was public use accepted without question.
+As appears from the application for registration, the public were barred for some time after the end of the First World War, and their use only resumed in response to a public protest.
+There might well be a case for treating what followed as tolerated trespass, or use as of right, had not the whole area been brought under formal regulation by the making of the byelaws.
+For the reasons given by Lord Neuberger, I agree that thereafter the only possible inference is that the use was permitted by the harbour authorities and was therefore by right.
+Ground (iii) statutory incompatibility 137.
+In view of our unanimous conclusion on ground (ii), I would have preferred not to have to reach a decision on ground (iii), which I find much more difficult.
+I see considerable force, with respect, in the detailed reasoning of Richards LJ in the Court of Appeal, and in particular his reasons for not finding assistance in the Scottish cases ([2014] QB 186 paras 10 28). 138.
+I see a further problem which may have been touched on before Ouseley J (see his judgment at paras 133, 141 142), but has not been raised by the parties or explored in any depth before us.
+This concerns the consequences of registration under the 2006 Act.
+Lord Neuberger and Lord Hodge (para 95), citing Lord Hoffmann in the Oxfordshire case, proceed on the basis that registration of the Beach as a town or village green would make it subject to the restrictions (subject to criminal sanctions) imposed by the 19th century village green statutes.
+It is easy to see why such restrictions are likely to be incompatible with future use for harbour purposes, even if that has not proved a problem hitherto. 139.
+However, it is to be noted that the supposed incompatibility does not arise from anything in the 2006 Act itself, but rather from inferences drawn by the courts as to Parliaments intentions.
+In the relevant passage (para 56), Lord Hoffmann expressed agreement with the courts below on this issue, including by implication my own rather fuller reasoning in the Court of Appeal ([2006] Ch 43 paras 82 90).
+However, he did not see this issue as impinging directly on the question whether the land should be registered.
+Having noted and disposed of some of the arguments on the effect of the 19th century statutes, he added: Nor do I follow how the fact that, upon registration, the land would become subject to the 1857 and 1876 Acts can be relevant to the question of whether there has been the requisite user by local inhabitants for upwards of 20 years before the date of the application(para 57).
+It was not necessary in that case to consider the issue which arises here: that is, the potential conflict between the general village green statutes and a more specific statutory regime, such as under the Harbours Acts.
+It is at least arguable in my view that registration should be confirmed if the necessary use is established, but with the consequence that the 19th century restrictions are imported subject only to the more specific statutory powers governing the operation of the harbour. 140.
+In conclusion, for the reasons already given, I agree that the appeal should be allowed.
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+When Parliament requires a local authority to consult interested persons before making a decision which would potentially affect all of its inhabitants, what are the ingredients of the requisite consultation? 3.
+Until 1 April 2013 there was a scheme in England for the payment of Council Tax Benefit (CTB) for the relief, in whole or in part, of certain persons from their annual obligation to pay council tax.
+The scheme was made by the Department for Work and Pensions and the duty of local authorities was only to operate it.
+From 1 April 2013, however, local authorities were required to operate a new scheme, entitled a Council Tax Reduction Scheme (CTRS), which they were required to have made for themselves.
+Before making a CTRS, local authorities were required to consult interested persons on a draft of it.
+Between August and November 2012 the London Borough of Haringey (Haringey) purported to consult interested persons on its draft CTRS, following which it made the scheme in substantial accordance with its draft.
+In these proceedings two single mothers, who were resident in Haringey and who until 1 April 2013 had been in receipt of what I will describe as full CTB (by which I mean at a level which had relieved them entirely of their obligation to pay council tax), applied for judicial review of the lawfulness of the consultation which Haringey had purported to conduct in relation to its draft CTRS.
+The women asked the court to quash the decision which on 17 January 2013 Haringey had made in the light of the consultation; and my reference in paragraph 8 below to the default scheme will explain why the quashing of the decision would have been very much in their interests.
+On 7 February 2013 Underhill J dismissed their application: [2013] EWHC 252 (Admin); [2013] ACD 62.
+The judge had allowed them to be anonymised as M and section The latter appealed to the Court of Appeal, which ruled that she was not entitled to anonymity and should be referred to by name, Ms Stirling.
+On 12 February 2013, with astonishing alacrity referable no doubt to the deadline of 1 April 2013, the court heard the appeal.
+On 22 February 2013, by a judgment of Sullivan LJ with which Sir Terence Etherton, the Chancellor of the High Court, agreed, and by a judgment of Pitchford LJ in which he disagreed with one aspect of the reasoning of Sullivan LJ but concurred in the proposed result, the court dismissed her appeal: [2013] EWCA Civ 116; [2013] PTSR 1285.
+Ms Stirling appealed to this court 5. 6. 7. 8.
+The Surrounding Facts 4. against the dismissal of her appeal but unfortunately she became ill and unable to give instructions, with the result that, by consent, the court substituted Ms Moseley as the appellant; and since then, sadly, Ms Stirling has died.
+Like the other two women, Ms Moseley is a single mother, resident in Haringey, who until 1 April 2013 had been in receipt of full CTB.
+For the period prior to 1 April 2013 a means tested scheme set by central government identified those entitled to CTB.
+Local authorities were obliged to apply it to residents in their area.
+Although reference is conveniently made to payment of CTB, it was not, in the usual sense of that word, paid to those entitled to it.
+Instead it provided them with a credit, in whole or in part, against what they would otherwise owe to their local authority in respect of council tax.
+Central government reimbursed local authorities, pound for pound, for what they forewent as a result of being obliged to grant the benefit.
+In the final year in which it was payable, namely the year to 1 April 2013, about 36,000 households in Haringey, namely about one third of all of its households, were entitled to CTB.
+Of those, 25,560 were entitled to full CTB.
+In its Spending Review back in 2010 central government announced that, as part of its programme for reduction of the national deficit, it would from April 2013 transfer to each local authority the responsibility for making, as well as for operating, a scheme for providing relief from council tax; and that in 2013 2014 the reimbursement by central government to each local authority in respect of whatever it provided by way of relief from council tax would be fixed at about 90% of the amount which the government would have paid to it in that regard in 2012 2013.
+Section 33(1)(e) of the Welfare Reform Act 2012 duly abolished CTB with effect from 1 April 2013.
+Section 13(A)(2) of the Local Government Finance Act 1992 (the 1992 Act), as substituted by section 10(1) of the Local Government Finance Act 2012 (the 2012 Act), duly obliged each local authority to make a CTRS for those whom it considered to be in financial need.
+Schedule 1A to the 1992 Act [the schedule], which was added by Paragraph 1 of Schedule 4(1) to the 2012 Act and given effect by section 13A(3) of that Act, made provisions about a CTRS.
+Paragraph 2 of the schedule, together with regulations made under subparagraph 8 of it, specified requirements for a scheme, including that pensioners who would have been entitled to CTB should be granted relief at the same level.
+Paragraph 3 of the schedule, entitled Preparation of a scheme, provided: (1) Before making a scheme, the authority must (in the following order) (a) consult any major precepting authority which has power to issue a precept to it, (b) publish a draft scheme in such manner as it thinks fit, and (c) consult such other persons as it considers are likely to have an interest in the operation of the scheme. (2) (3) Having made a scheme, the authority must publish it in such manner as the authority thinks fit. (4) The Secretary of State may make regulations about the procedure for preparing a scheme.
+The title of the paragraph puts beyond doubt that the procedure for preparing a scheme, which can be the subject of regulations under subparagraph (4), includes the procedure for the consultation required by subparagraph (1)(c).
+In the event, however, no such regulations were made.
+Paragraph 4 of the schedule required the Secretary of State to prescribe a default scheme so as to provide for relief from council tax in and after 2013 2014 for households in the area of any local authority which had failed to make a scheme by 31 January 2013.
+The default scheme, set out in the Council Tax Reduction Schemes (Default Scheme) (England) Regulations, SI 2012/2886, provided that, notwithstanding the reduction in reimbursement by central government, a local authority should grant relief against council tax after 1 April 2013 at the same level as had previously been granted by way of CTB.
+Paragraph 5 of the schedule provides that, for each year subsequent to 2013 2014, a local authority must consider whether to revise its CTRS and that, if it resolves to do so, it should again comply with the provisions for preparation of a scheme in paragraph 3. 9.
+Mr Ellicott, Head of Revenues, Benefits and Customer Services in Haringey, was the main author of a report for consideration by Haringeys Cabinet on 10 July 2012.
+In it he identified the need for Haringey to make a CTRS by 31 January 2013.
+He explained that reimbursement by central government to Haringey in respect of relief from council tax was to be reduced by about 10% in 2013 2014 but that, were Haringeys CTRS to provide relief at a level equivalent to CTB, the shortfall would rise to about 17 18%, mainly because of the trend in Haringey for an annual increase in the number of households eligible for relief.
+In his introduction to the report Councillor Goldberg, Haringeys Cabinet Member for Finance, wrote: Needless to say it is my belief that this represents one of the most appalling policies of the government and it is not insignificant that the unemployed will now be facing the prospect of having to pay 20% local taxation levels, which they last were subjected to paying under the Poll Tax.
+There was nothing wrong with Councillor Goldbergs expression of indignation.
+But it did betray an assumption that the shortfall would have to be reflected by provisions in the CTRS which reduced the level of relief below the level previously provided by way of CTB rather than that Haringey should absorb it in other ways.
+It is true that in the body of the report Mr Ellicott proceeded to refer to the option of absorbing the cost and then rejected it on the ground that it would require a reduction in services.
+He also identified, and rejected, options for exempting each of four classes of claimant for relief from any reduction below its existing level.
+In the end he recommended that Haringeys CTRS should provide that the shortfall be met by a percentage reduction in the amount of CTB payable to all claimants other than, of course, to pensioners; and that, because pensioners would not be meeting their share, the percentage reduction for other claimants would have to rise to between 18% and 22%.
+Those who were then in receipt of full CTB, other than pensioners, would therefore, for example, be required to pay between 18% and 22% of their council tax liability. 10.
+On 10 July 2012 Haringeys Cabinet approved the recommendation in Mr Ellicotts report.
+Haringey thereupon proceeded to prepare its draft scheme.
+Pursuant to paragraph 3(1)(a) of the schedule, it consulted the Greater London Authority, which has power to issue a precept to local authorities in London for a contribution to the cost of funding the Metropolitan Police and fire and transport services.
+Then, on 29 August 2012, Haringey published its draft scheme pursuant to paragraph 3(1)(b) and purported to embark on the consultation required of it by paragraph 3(1)(c).
+In that the terms by which it conducted its consultation are at the centre of this appeal, Haringeys consultation exercise deserves separate consideration in the next section of this judgment. 11. 12.
+Haringeys consultation exercise was expressed to continue until 19 November 2012.
+Meanwhile, however, on 16 October 2012 a government minister announced the introduction of a Transitional Grant Scheme (TGS).
+The scheme, set out in a circular published two days later, was that central government would make a grant, not likely to be extended beyond 2013 2014, to each local authority which introduced a CTRS for that year in accordance with three criteria.
+Of these the most important was that those currently in receipt of full CTB should pay no more than 8.5% of their council tax liability.
+An annex to the circular revealed that the grant referable to Haringey would be 706,021.
+Haringey concluded, however, that the grant would not cover the difference between a recovery from those currently in receipt of full CTB of 8.5% of their liability, on the one hand, and of 18 22% of their liability, on the other; and that the scheme would therefore leave Haringey with an unacceptable net shortfall in its receipts of council tax.
+So it resolved not to amend its draft CTRS so as to comply with the TGS criteria and not to bring the TGS to the attention of those likely to be interested in the operation of its CTRS by means of any enlarged consultation exercise. 13.
+Haringeys full Council met on 17 January 2013.
+Before it was a report substantially drafted by Mr Ellicott.
+Annexed to the report was an elaborate analysis of the responses to Haringeys consultation exercise, including numerous quotations from them, often in vivid language.
+It was suggested in the report: (a) (b) (c) that the effect of the default CTRS would be to leave Haringey with a shortfall of 3.846m; that adoption of a CTRS which complied with the TGS criteria would leave Haringey with a net shortfall of 1.489m; that in the light, among other things, of responses to the consultation exercise, it would be appropriate for the disabled to join pensioners as the two groups exempt from reduction in support below current CTB levels; and that, in the light of (c) above and of clarification by central government of the precise amount to be paid by it in respect of council tax reduction in 2013 2014, Haringeys CTRS should provide for a reduction of relief below current CTB levels of 19.8% across the board other than for those two groups; and that, subject to difficulties of collection, such a reduction would render Haringey not out of pocket as a result of the move from CTB to a CTRS. (d) 14.
+The full Council adopted the suggestion in the report.
+Thus it was that, prior to 31 January 2013, Haringey made a CTRS which provided for a reduction of relief in 2013 14, below the 2012 2013 CTB level, of 19.8% other than for pensioners and the disabled.
+Its CTRS came into operation on 1 April 2013 (and has not been revised for 2014 2015). 15.
+Of the 326 local authorities in England, about 25% allowed the default CTRS to take effect in 2013 2014; they thus entirely absorbed the shortfall in central governments funding by means other than the reduction of relief from council tax below the current level of CTB.
+About 33% of them adopted a CTRS which complied with the TGS criteria; they thus partially absorbed the shortfall by means other than such a reduction.
+The remaining 42%, like Haringey, adopted a CTRS which entirely translated the shortfall into an increase in liability for council tax above the amount, if any, which in 2012 2013 recipients of CTB were liable to pay; and they thus had no need to absorb the shortfall by other means.
+The Consultation 16.
+Haringeys statutory obligation, set out in paragraph 3(1)(c) of the schedule, was to consult such persons as it considers are likely to have an interest in the operation of the scheme.
+One could argue that even those residents who were not entitled to CTB had a financial interest in the operation of the scheme, namely that it should indeed come into operation rather than that a scheme which addressed the shortfall in other ways, likely to be prejudicial to them, should do so.
+But those who most obviously had an interest in the operation of the scheme were those who would be adversely affected by it, namely those who were entitled to CTB, other than any group proposed to be excluded from the scheme, being (at the time of the consultation exercise) only the pensioners.
+It is agreed that, in this regard, Haringey directed its consultation in accordance with paragraph 3(1)(c).
+For, while it posted a consultation document online and invited all residents to respond to it, Haringey delivered hard copies by hand to each of its 36,000 households entitled to CTB, together with a covering letter signed by Mr Ellicott.
+In the covering letter Mr Ellicott explained that he was writing it because the recipient was receiving CTB and that the government was abolishing CTB and requiring local authorities to replace it with a CTRS.
+He continued: At present the Government gives us the money we need to fund Council Tax Benefit in Haringey.
+We will receive much less money for the new scheme and once we factor in the increasing number of people claiming benefit and the cost of protecting our pensioners, we estimate the shortfall could be as much as 5.7m.
+This means that the introduction of a local Council Tax Reduction Scheme in Haringey will directly affect the 17. assistance provided to anyone below pensionable age that currently involves council tax benefit.
+The attached booklet provides all the information you need to understand the changes the Government are making.
+It sets out the proposed Council Tax Reduction Scheme and explains how this is likely to affect you.
+Please read this information carefully.
+We want to know what you think of these proposals before reaching a final decision about the scheme we adopt.
+Once you have looked at the information please complete the attached questionnaire and return it in the FREEPOST envelope by 19th November 2012.
+Be heard have your say.
+For present purposes the importance of Mr Ellicotts letter surrounds the paragraph of it which he chose to print in bold.
+Note its opening words, namely This means that.
+Mr Ellicott was there stating that the shortfall in government funding meant that Haringeys CTRS would provide less relief against council tax than recipients of the letter, other than pensioners, were receiving by way of CTB.
+But the shortfall did not necessarily have that consequence.
+Why was Mr Ellicott not there recognising that at least there were other options, albeit not favoured by Haringey, for meeting the shortfall? Note also Mr Ellicotts use of the indefinite article, in his reference to the introduction of a local [CTRS] in Haringey.
+It suggests that any CTRS introduced in Haringey, not just the scheme proposed, would need to meet the shortfall by a reduction from existing levels of CTB. 18.
+The booklet attached to Mr Ellicotts letter was the consultation document, comprising in part the provision of information and in part the questionnaire.
+So I turn to see whether the information reasonably dispelled the impression given in the letter that the shortfall had inevitably to be met by a reduction of relief against council tax below CTB levels. 19.
+The document was entitled The Government is abolishing Council Tax Benefit.
+It referred to the reduction in government funding and proceeded as follows: Early estimates suggest that the cut will leave Haringey with an actual shortfall in funding of around 20%.
+This means Haringey claimants will lose on average approximately 1 in every 5 of support they currently receive in [CTB]. [Italics supplied] There is no doubt that Haringeys proposed scheme meant that its claimants would suffer a loss of that order.
+But the reduction in government funding did not inevitably have that effect.
+Then, under the subheading Whats changing?, Haringey, adopting almost the same terms as those in Mr Ellicotts letter, said: At present the Government gives us the money we need to fund [CTB] in Haringey.
+From next April we must implement a new [CTRS].
+Well receive much less money for the new scheme and once we factor in the increasing number of people claiming benefit and the cost of protecting our pensioners, we estimate the shortfall could be as much as 5.7m next year and this could rise in later years.
+Although pensioners will move on to the new [CTRS], they will receive the same amount of support they would have received under the current [CTB] regulations.
+That means that the introduction of a local [CTRS] in Haringey will directly affect the assistance provided to everyone below pensionable age that currently receives [CTB]. [Italics supplied] 20.
+In the consultation document there was no reference to options for meeting the shortfall other than by a reduction in relief from council tax, namely to the options of raising council tax or of reducing the funding of Haringeys services or of applying its deployable reserves of capital (which amounted to 76.8m in March 2012); and it follows that there was no explanation of why Haringey was not proposing to adopt any of those three options.
+In the document Haringey thereupon set out its proposals.
+It stated its belief that the fairest way in which to apply the government cut was to reduce all relief to working age claimants by about 20% from CTB levels.
+It added: We also have to decide if certain groups should be protected from any changes we make and continue to get the same level of support as they do now.
+Doing this would mean that other claimants would get even less support. 21.
+Then followed Haringeys questionnaire.
+There were five main questions.
+The first was: To what extent do you agree we should apply the Governments reduction in funding equally to all recipients of working age? This means that every household of working age will have to pay something towards their council tax bill.
+I consider, contrary to Haringeys contention, that the reader of the first question was in effect presented with an assumption that the shortfall in government funding would be met by a reduction in the relief from council tax afforded to recipients of working age, rather than that it should be met in other ways so that the level of their relief might be preserved.
+The gist of the first question was in my view whether, upon that assumption, all such recipients should suffer the reduction in equal proportions.
+The fifth question, again cast upon that assumption, presented the alternative possibility as follows: Should some groups of people continue to get the same support as now even if doing this would mean that other claimants would get less support? A reader who answered Yes to the fifth question was then offered a box in which to identify the groups whom he or she considered should be protected.
+The second, third and fourth questions related to other, less significant, departures from CTB rules proposed in Haringeys draft CTRS.
+Following the five main questions there was a second box, above which Haringey wrote: Please use the space below to make any other comments about our draft Council Tax Reduction Scheme.
+In response to its consultation exercise Haringey received 1251 completed questionnaires and 36 letters and emails.
+Of those who completed the questionnaire, 43% agreed or strongly agreed with the first question and 44% disagreed or strongly disagreed with it.
+Suggestions were made in at least ten of the responses that Haringey should meet the shortfall by cutting services 22. and in at least 11 of them that it should meet it by increasing council tax.
+One of the 36 letters and emails was an email sent to Haringey by The Reverend Paul Nicolson, a prominent anti poverty campaigner, on 29 October 2012.
+He wrote: I write to oppose your proposals on the grounds that the 25,560 households who now pay no council tax will not be able to pay 20%, or around 300 pa, from April 2013[B]enefits are paid to our poorest fellow citizens to provide the necessities of life; they are already inadequate On 6 November 2012 Haringey responded: We have asked for comments around protecting groups in addition to Pensioners, however protecting additional groups will have an impact on the remaining recipients who will have to pay a higher amount to cover the shortfall.
+Your email below is unclear as to which group you are suggesting we protect and how we then make up the shortfall.
+In his response dated 7 November 2012 The Rev. Nicolson observed: I am aware that central government has cut its council tax benefit grant to Haringey and all other councils by 10%.
+Other councils are absorbing the cut and continuing [to] implement the current CT benefit scheme.
+Why cannot Haringey do the same? There is no consultation taking place about that central issue.
+On 10 December 2012, following the end of the consultation, The Rev. Nicolson wrote a letter of protest to the Leader of Haringey Council, which ended as follows: I am shocked that no alternative to hitting the fragile incomes of the poorest residents of Haringey was included in the recent consultation.
+The Law 23.
+A public authoritys duty to consult those interested before taking a decision can arise in a variety of ways.
+Most commonly, as here, the duty is generated by statute.
+Not infrequently, however, it is generated by the duty cast by the common law upon a public authority to act fairly.
+The search for the demands of fairness in this context is often illumined by the doctrine of legitimate expectation; such was the source, for example, of its duty to consult the residents of a care home for the elderly before deciding whether to close it in R v Devon County Council, ex parte Baker [1995] 1 All ER 73.
+But irrespective of how the duty to consult has been generated, that same common law duty of procedural fairness will inform the manner in which the consultation should be conducted. 24.
+Fairness is a protean concept, not susceptible of much generalised enlargement.
+But its requirements in this context must be linked to the purposes of consultation.
+In R (Osborn) v Parole Board [2013] UKSC 61, [2013] 3 WLR 1020, this court addressed the common law duty of procedural fairness in the determination of a persons legal rights.
+Nevertheless the first two of the purposes of procedural fairness in that somewhat different context, identified by Lord Reed in paras 67 and 68 of his judgment, equally underlie the requirement that a consultation should be fair.
+First, the requirement is liable to result in better decisions, by ensuring that the decision maker receives all relevant information and that it is properly tested (para 67).
+Second, it avoids the sense of injustice which the person who is the subject of the decision will otherwise feel (para 68).
+Such are two valuable practical consequences of fair consultation.
+But underlying it is also a third purpose, reflective of the democratic principle at the heart of our society.
+This third purpose is particularly relevant in a case like the present, in which the question was not Yes or no, should we close this particular care home, this particular school etc? It was Required, as we are, to make a taxation related scheme for application to all the inhabitants of our Borough, should we make one in the terms which we here propose? In R v Brent London Borough Council, ex p Gunning, (1985) 84 LGR 168 Hodgson J quashed Brents decision to close two schools on the ground that the manner of its prior consultation, particularly with the parents, had been unlawful.
+He said at p 189: 25.
+Mr Sedley submits that these basic requirements are essential if the consultation process is to have a sensible content.
+First, that consultation must be at a time when proposals are still at a formative stage.
+Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response.
+Third, that adequate time must be given for consideration and response and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals.
+Clearly Hodgson J accepted Mr Sedleys submission.
+It is hard to see how any of his four suggested requirements could be rejected or indeed improved.
+The Court of Appeal expressly endorsed them, first in the Baker case, cited above (see pp 91 and 87), and then in R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 at para 108.
+In the Coughlan case, which concerned the closure of a home for the disabled, the Court of Appeal, in a judgment delivered by Lord Woolf MR, elaborated at para 112: It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice.
+Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response.
+The obligation, although it may be quite onerous, goes no further than this.
+The time has come for this court also to endorse the Sedley criteria.
+They are, as the Court of Appeal said in R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472, 126 BMLR 134, at para 9, a prescription for fairness. 26.
+Two further general points emerge from the authorities.
+First, the degree of specificity with which, in fairness, the public authority should conduct its consultation exercise may be influenced by the identity of those whom it is consulting.
+Thus, for example, local authorities who were consulted about the governments proposed designation of Stevenage as a new town (Fletcher v Minister of Town and Country Planning [1947] 2 All ER 496 at p 501) would be likely to be able to respond satisfactorily to a presentation of less specificity than would members of the public, particularly perhaps the economically disadvantaged.
+Second, in the words of Simon Brown LJ in the Baker case, at p 91, the demands of fairness are likely to be somewhat higher when an authority contemplates depriving someone of an existing benefit or advantage than when the claimant is a bare applicant for a future benefit. 27.
+Sometimes, particularly when statute does not limit the subject of the requisite consultation to the preferred option, fairness will require that interested persons be consulted not only upon the preferred option but also upon arguable yet discarded alternative options.
+For example, in R (Medway Council and others) v Secretary of State for Transport [2002] EWHC 2516 (Admin), [2003] JPL 583, the court held that, in consulting about an increase in airport capacity in South East England, the government had acted unlawfully in consulting upon possible development only at Heathrow, Stansted and the Thames estuary and not also at Gatwick; and see also R (Montpeliers and Trevors Association) v Westminster City Council [2005] EWHC 16 (Admin), [2006] LGR 304, at para 29. 28.
+But, even when the subject of the requisite consultation is limited to the preferred option, fairness may nevertheless require passing reference to be made to arguable yet discarded alternative options.
+In Nichol v Gateshead Metropolitan Borough Council (1988) 87 LGR 435 Gateshead, confronted by a falling birth rate and therefore an inability to sustain a viable sixth form in all its secondary schools, decided to set up sixth form colleges instead.
+Local parents failed to establish that Gatesheads prior consultation had been unlawful.
+The Court of Appeal held that Gateshead had made clear what the other options were: see pp 455, 456 and 462.
+In the Royal Brompton case, cited above, the defendant, an advisory body, was minded to advise that only two London hospitals should provide paediatric cardiac surgical services, namely Guys and Great Ormond Street.
+In the Court of Appeal the Royal Brompton Hospital failed to establish that the defendants exercise in consultation upon its prospective advice was unlawful.
+In its judgment delivered by Arden LJ, the court, at para 10, cited the Gateshead case as authority for the proposition that a decision maker may properly decide to present his preferred options in the consultation document, provided it is clear what the other options are.
+It held, at para 95, that the defendant had made clear to those consulted that they were at liberty to press the case for the Royal Brompton.
+Application of the law to the facts 29.
+Paragraph 3(1)(c) of the schedule imposed on Haringey the requirement to consult.
+The requirement was to consult such other persons as it considers are likely to have an interest in the operation of the scheme.
+So the subject of the consultation was Haringeys preferred scheme and not any other discarded scheme.
+It is, however, at this point in the analysis that the division 30. of opinion arose in the Court of Appeal.
+Sullivan LJ, with whom Sir Terence Etherton agreed, concluded, at para 18, that: In this statutory context fairness does not require the Council in the consultation process to mention other options which it has decided not to incorporate into its published draft scheme; much less does fairness require that the consultation document contain an explanation as to why those options were not incorporated in the draft scheme.
+Pitchford LJ, by contrast, agreed with Underhill J who, at para 27, had concluded that: consulting about a proposal does inevitably involve inviting and considering views about possible alternatives.
+It is clear to me that the latter conclusion is correct.
+It is substantially in accordance with the decisions in the Gateshead and the Royal Brompton cases referred to in para 28 above.
+Those whom Haringey was primarily consulting were the most economically disadvantaged of its residents.
+Their income was already at a basic level and the effect of Haringeys proposed scheme would be to reduce it even below that level and thus in all likelihood to cause real hardship, while sparing its more prosperous residents from making any contribution to the shortfall in government funding.
+Fairness demanded that in the consultation document brief reference should be made to other ways of absorbing the shortfall and to the reasons why (unlike 58% of local authorities in England: see para 15 above) Haringey had concluded that they were unacceptable.
+The protest of The Rev. Nicolson in his letter dated 10 December 2012 was well directed.
+It would not have been onerous for Haringey to make brief reference to other ways of absorbing the shortfall.
+The CTRS proposed by Birmingham City Council was, like that proposed by Haringey, for the shortfall to be met by a reduction in council tax support, although Birmingham favoured sparing households with children aged under six and therefore reducing support more severely for the remainder.
+In its consultation document dated September 2012 Birmingham nevertheless wrote: We could decide to provide support at the same level as Council Tax Benefit, but this would mean raising Council Tax in the region of 4.4%; reducing Council services and using the compensatory savings to fund Council Tax Support; or a combination of [the two]. [But] we already have to plan the Councils finances on the basis that there may be a rise in Council Tax of around 1.9% and that all service areas will have to make savings this year.
+Part of Birminghams first question was: if you think the Council should make an additional contribution from its own finances to the [CTRS], how do you think this should be funded? In particular, should the Council increase Council Tax, or cut other Council services, or both? Birminghams presentation was fair. 31.
+Underhill J and Pitchford LJ nevertheless proceeded to conclude, as did Sullivan LJ and Sir Terence Etherton on the assumption that they were wrong to discern an absence of need to refer to other options, that Haringeys consultation exercise had been lawful because the other options would have been reasonably obvious to those consulted.
+It is clear that no conclusion to that effect can be drawn from the fact that, from the 36,000 households to which a hard copy of the consultation document was delivered, there were at least ten responses that services should be cut and at least 11 responses that council tax should be increased.
+On the contrary the apparently infinitesimal number of such responses arguably runs the other way.
+Assuming, however, that Underhill J and the Court of Appeal were entitled to conclude that the other options would have been reasonably obvious to those consulted, two matters arise.
+The first is to question whether it would also have been reasonably obvious to them why Haringey was minded to reject the other options.
+I speak as one who, even after a survey of the evidence filed by Haringey in these proceedings, remains unclear why it was minded to reject the other options.
+Perhaps the driver of its approach was political.
+At all events I cannot imagine that an affirmative answer can be given to that question.
+The second matter is the need to link the assumed knowledge of those consulted with the terms of Haringeys presentation to them in the consultation document and the covering letter.
+With respect to them, Underhill J and the Court of Appeal gave insufficient attention to the terms both of the document and of the letter, which, as I have demonstrated in paras 17 to 21 above, represented, as being an accomplished fact, that the shortfall in government funding would be met by a reduction in council tax support and that the only question was how, within that parameter, the burden should be distributed.
+This limited approach to the relevant question was entirely consistent with Mr Ellicotts report in July 2012 (see para 9 above) and, Haringeys response dated 6 November 2012 to The Rev. Nicolson (see para 22 above).
+Haringeys message to those consulted was therefore that other options were irrelevant and in such circumstances I cannot agree that their assumed knowledge of them saves Haringeys consultation exercise from a verdict that it was unfair and therefore unlawful. 32.
+A separate ground of Ms Moseleys appeal relates to the TGS.
+The contention, rejected by Underhill J and the Court of Appeal, is that, following the announcement of the TGS on 16 October 2012, Haringey, even though not minded to propose a scheme in accordance with it, acted unlawfully in failing to enlarge its consultation exercise so as to refer to it.
+But adoption of a scheme in accordance with the TGS would have left Haringey with a net shortfall in its receipts of council tax and have therefore required its absorption in other ways.
+Granted that reference should in any event have been made to other ways in Haringeys consultation exercise, the TGS did not add any substantially different dimension to the relevant possibilities.
+In the light also of the practical consideration that the announcement of the TGS was made on a date when Haringeys consultation exercise was less than five weeks short of completion, I also consider that it was not unlawful for Haringey to fail to refer to the TGS.
+In its argument on this ground, however, Haringey makes an illuminating concession, namely that, had it known of the TGS when it commenced its consultation exercise, it would have referred to it.
+The need for brief reference to other discarded options which would have required absorption of the shortfall in ways other than by reduction of council tax support is indeed the basis of my earlier conclusion.
+In addition to the declaration to which in my view she is entitled, Ms Moseley aspires, albeit with little apparent enthusiasm, to persuade the court to order Haringey to undertake a fresh consultation exercise, in accordance with the terms of its judgments, in relation to its CTRS for the forthcoming year 2015 2016.
+Paragraph 5(5) of the schedule requires it to comply with paragraph 3, including therefore to undertake the consultation exercise mandated by paragraph 3(1)(c), only if it is minded to revise its CTRS.
+It is unclear whether it is so minded but, if so, no doubt it will undertake its exercise in accordance with the terms of this courts judgments.
+The proposed mandatory order would therefore have practical effect only in the event that Haringey was not minded to revise its CTRS.
+My conclusion is that it would not be 33. proportionate to order Haringey to undertake a fresh consultation exercise in relation to a CTRS which will have been in operation for two years and which it is not minded to revise.
+LORD REED 34.
+I am generally in agreement with Lord Wilson, but would prefer to express my analysis of the relevant law in a way which lays less emphasis upon the common law duty to act fairly, and more upon the statutory context and purpose of the particular duty of consultation with which we are concerned. 35.
+The common law imposes a general duty of procedural fairness upon public authorities exercising a wide range of functions which affect the interests of individuals, but the content of that duty varies almost infinitely depending upon the circumstances.
+There is however no general common law duty to consult persons who may be affected by a measure before it is adopted.
+The reasons for the absence of such a duty were explained by Sedley LJ in R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWCA Civ 1139; [2008] ACD 20, paras 43 47.
+A duty of consultation will however exist in circumstances where there is a legitimate expectation of such consultation, usually arising from an interest which is held to be sufficient to found such an expectation, or from some promise or practice of consultation.
+The general approach of the common law is illustrated by the cases of R v Devon County Council, Ex p Baker [1995] 1 All ER 73 and R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213, cited by Lord Wilson, with which the BAPIO case might be contrasted. 36.
+This case is not concerned with a situation of that kind.
+It is concerned with a statutory duty of consultation.
+Such duties vary greatly depending on the particular provision in question, the particular context, and the purpose for which the consultation is to be carried out.
+The duty may, for example, arise before or after a proposal has been decided upon; it may be obligatory or may be at the discretion of the public authority; it may be restricted to particular consultees or may involve the general public; the identity of the consultees may be prescribed or may be left to the discretion of the public authority; the consultation may take the form of seeking views in writing, or holding public meetings; and so on and so forth.
+The content of a duty to consult can therefore vary greatly from one statutory context to another: the nature and the object of consultation must be related to the circumstances which call for it (Port Louis Corporation v Attorney General of Mauritius [1965] AC 1111, 1124).
+A mechanistic approach to the requirements of consultation should therefore be avoided. 37.
+Depending on the circumstances, issues of fairness may be relevant to the explication of a duty to consult.
+But the present case is not in my opinion concerned with circumstances in which a duty of fairness is owed, and the problem with the consultation is not that it was unfair as that term is normally used in administrative law.
+In the present context, the local authority is discharging an important function in relation to local government finance, which affects its residents generally.
+The statutory obligation is, before making a scheme, to consult any major precepting authority, to publish a draft scheme, and, critically, to consult such other persons as it considers are likely to have an interest in the operation of the scheme.
+All residents of the local authoritys area could reasonably be regarded as likely to have an interest in the operation of the scheme, and it is on that basis that Haringey proceeded. 39. 40.
+That is not to say that a duty to consult invariably requires the provision of information about options which have been rejected.
+The matter may be made clear, one way or the other, by the terms of the relevant statutory provisions, as it was in R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472; [2012] 126 BMLR 134.
+To the extent that the issue is left open by the relevant statutory provisions, the question will generally be whether, in the particular context, the provision of such information is necessary in order for the consultees to express meaningful views on the proposal.
+The case of Vale of Glamorgan Council v Lord Chancellor and Secretary of State for Justice [2011] EWHC 1532 (Admin) is an example of a case where such information was not considered necessary, having regard to the nature and purpose of that particular consultation exercise, which concerned the proposed closure of a specific court.
+In the present case, on the other hand, it is difficult to see how ordinary members of the public could express an intelligent view on the proposed scheme, so as to participate in a meaningful way in the decision making process, unless they had an idea of how the loss of income by the local authority might otherwise be replaced or absorbed. 41.
+Nor does a requirement to provide information about other options mean that there must be a detailed discussion of the alternatives or of the reasons for their rejection.
+The consultation required in the present context is in respect of the draft scheme, not the rejected alternatives; and it is important, not least in the context of a public consultation exercise, that the consultation documents should be clear and understandable, and therefore should not be unduly complex or lengthy.
+Nevertheless, enough must be said about realistic alternatives, and the reasons for the local authoritys preferred choice, to enable the consultees to make an intelligent response in respect of the scheme on which their views are sought. 42.
+As Lord Wilson has explained, those requirements were not met in this case.
+The consultation document presented the proposed reduction in council tax support as if it were the inevitable consequence of the Governments funding cuts, and thereby disguised the choice made by Haringey itself.
+It misleadingly implied that there were no possible alternatives to that choice.
+In reality, therefore, there was no consultation on the fundamental basis of the scheme.
+I therefore concur in the order proposed by Lord Wilson. 43.
+LADY HALE AND LORD CLARKE 44.
+We agree that the appeal should be disposed of as indicated by Lord Wilson and Lord Reed.
+There appears to us to be very little between them as to the correct approach.
+We agree with Lord Reed that the court must have regard to the statutory context and that, as he puts it, in the particular statutory context, the duty of the local authority was to ensure public participation in the decision making process.
+It seems to us that in order to do so it must act fairly by taking the specific steps set out by Lord Reed in his para 39.
+In these circumstances we can we think safely agree with both judgments. 38.
+Such wide ranging consultation, in respect of the exercise of a local authoritys exercise of a general power in relation to finance, is far removed in context and scope from the situations in which the common law has recognised a duty of procedural fairness.
+The purpose of public consultation in that context is in my opinion not to ensure procedural fairness in the treatment of persons whose legally protected interests may be adversely affected, as the common law seeks to do.
+The purpose of this particular statutory duty to consult must, in my opinion, be to ensure public participation in the local authoritys decision making process.
+In order for the consultation to achieve that objective, it must fulfil certain minimum requirements.
+Meaningful public participation in this particular decision making process, in a context with which the general public cannot be expected to be familiar, requires that the consultees should be provided not only with information about the draft scheme, but also with an outline of the realistic alternatives, and an indication of the main reasons for the authoritys adoption of the draft scheme.
+That follows, in this context, from the general obligation to let consultees know what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response: R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213, para 112, per Lord Woolf MR.
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+The Architects Registration Board ("ARB")
+The Solicitors Regulation Authority ("SRA")
+The Bar Standards Board ("BSB")
+The Farriers Registration Council
+The Law Society
+The Bar Council
+The Local Government Association
+Her Majesty's Treasury LORD MANCE: (with whom Lord Neuberger, Lord Clarke, Lord Reed and Lord Toulson agree) 1.
+The appellants, who I shall call Westminster City Council, are the licensing authority for sex establishments (including sex shops) in Westminster under Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982.
+The respondents have at all material times been licensees in respect of some sex shops in Westminster. 2.
+The agreed statement of facts and issues records that an applicant for the grant or renewal of a sex establishment licence for any year had to pay a fee made up of two parts, one related to the administration of the application and non returnable, the other (considerably larger) for the management of the licensing regime and refundable if the application was refused.
+By way of example, for the year 2011/12 the total fee was 29,102, of which 2,667 related to the administration of the licence and was non returnable, while 26,435 related to the management of the licensing regime and was refundable if the application was refused.
+Refundable in this context clearly meant refundable in law. 3.
+The respondents, during the course of the proceedings before the Supreme Court, appeared to the court to be throwing some doubt on the agreed fact that the second part of the fee was refundable.
+However, not only was that agreed in the statement of facts and issues, but it was accepted by both courts below: see Keith Js judgment dated 16 May 2012, [2012] PTSR 1676, para 32 and the Court of Appeals judgment dated 24 May 2013, [2013] PTSR 1377, para 32.
+Further, the practice of refunding the second part of such a fee was recorded as long ago as 1985 in R v Westminster City Council, Ex p Hutton, tried and reported with R v Birmingham City Council, Ex p Quietlynn Ltd (1985) 83 LGR 461, 517.
+It is one which sex shop operators like the respondents must, on the face of it, have been aware of and have been able to enforce as a matter of public law.
+I see no basis in these circumstances for proceeding on any other basis. 4.
+The central issue is whether it was legitimate under domestic and/or European Union law for Westminster City Council to charge the 26,435 in 2011/12, or similarly refundable sums in other years.
+The respondents contend that it was not, essentially on the basis that these sums were, although refundable in the case of unsuccessful applicants, payable on account of the costs of enforcement of the licensing scheme which were unrelated to the costs of processing applications and should have been borne out of Westminster City Councils general funds and/or were, although payable on application by all applicants, sums which could only benefit successful applicants.
+I note that this was, of course, why they were refundable. 5.
+In domestic law, Westminster City Council relies upon paragraph 19 of Schedule 3 to the 1982 Act as authorising such fees.
+Paragraph 19 provides that: An applicant for the grant, renewal or transfer of a licence under this Schedule shall pay a reasonable fee determined by the appropriate authority. 6.
+Under this provision, it was established domestically some 30 years ago that a fee could be charged under paragraph 19 to reflect the costs not only of processing of applications but also of inspecting premises after the grant of licences and for what might be called vigilant policing in order to detect and prosecute those who operated sex establishments without licences: R v Westminster City Council, Ex p Hutton (1985) 83 LGR 516, quoted in the Court of Appeals judgment, para 13. 7.
+The correctness of this case law, as and when decided, is in my view unquestionable.
+I also have no doubt that it is, as a matter of domestic law, open to a licensing authority under paragraph 19 of Schedule 3 to require an applicant for the grant or renewal of a licence to pay a fee to cover the running and enforcement costs of a licensing scheme, and to make this fee payable either (a) outright, as and when the licence is actually granted pursuant to the application or (b) on a refundable basis, at the time when the application is lodged.
+The respondents contrary submission reads the wording of paragraph 19 over restrictively. 8.
+However, the respondents submit that, even if paragraph 19 is so read, the position has changed as a result of the making, under section 2 of the European Communities Act 1972, of the Provision of Services Regulations 2009 (SI 2009/2999) to give effect to Directive 2006/123/EC on services in the internal market.
+Regulation 18 of the 2009 Regulations provides: (2) Authorisation procedures and formalities provided for by a competent authority under an authorisation scheme must not (a) be dissuasive, or (b) unduly complicate or delay the provision of the service. (3) Authorisation procedures and formalities provided for by a competent authority under an authorisation scheme must be easily accessible. (4) Any charges provided for by a competent authority which applicants may incur under an authorisation scheme must be reasonable and proportionate to the cost of the procedures and formalities under the scheme and must not exceed the cost of those procedures and formalities.
+Under regulation 4: authorisation scheme means any arrangement which in effect requires the provider or recipient of a service to obtain the authorisation of, or to notify, a competent authority in order
+to have access to, or to exercise, a service activity
+Paragraphs (2), (3) and (4) of regulation 18 implement article 13(2) of the Directive.
+Despite their reformulation, no one suggests that these paragraphs have any wider or different effect than article 13(2).
+Article 13(2) reads: Authorisation procedures and formalities shall not be dissuasive and shall not unduly complicate or delay the provision of the service.
+They shall be easily accessible and any charges which the applicants may incur from their application shall be reasonable and proportionate to the cost of the authorisation procedures in question and shall not exceed the cost of the procedures.
+Article 13(2) is part of section 1, headed Authorisations in Chapter III of the Directive.
+Article 9, the first article in section 1, reads: Member States shall not make access to a service activity or the exercise thereof subject to an authorisation scheme unless the following conditions are satisfied: (a) the authorisation scheme does not discriminate against the provider in question; (b) the need for an authorisation scheme is justified by an over riding reason relating to the public interest; (c) the objective pursued cannot be attained by means of a less restrictive measure, in particular because an a posteriori inspection would take place too late to be genuinely effective.
+Article 4(6) contains this definition: authorisation scheme means any procedure under which a provider or recipient is in effect required to take steps in order to obtain from a competent authority a formal decision, or an implied decision, concerning access to a service activity or the
+exercise thereof
+Section 2 of Chapter III of the Directive, headed Requirements prohibited or subject to evaluation, specifies in article 14 various prohibited requirements, to compliance with which Member States may not make access to, or the exercise of, a service activity in their territory subject.
+One is an obligation to provide or participate in a financial guarantee or to take out insurance from a provider in their territory, but it is expressly provided that this shall not exclude a requirement to have insurance or a financial guarantee, or participate in a collective compensation scheme.
+Section 2 thus suggests that conditions attaching to the actual exercise of a service activity, once any necessary authorisation has been obtained, are a separate matter from the authorisation scheme and authorisation procedures and formalities.
+Similarly, Chapter IV, headed Free movement of services provides that Member States may not make access to or the exercise of a service activity in their territory subject to compliance with any requirements which do not respect general principles of non discrimination, necessity and proportionality set out in article 16(1) or which involve certain requirements set out in article 16(2).
+Again, this suggests that the actual regulation of access to or the exercise of a service activity is a distinct matter from any prior authorisation scheme and its procedures, with which section 1 of Chapter III is concerned.
+The courts below regarded article 13(2) as covering charges made to successful as well as unsuccessful applicants, and as preventing a licensing authority from charging those granted licences as well as unsuccessful applicants with the cost of investigating and prosecuting persons operating sex establishments in Westminster without a licence.
+On this basis, unsuccessful applicants could only be charged with the costs of dealing with their application (including investigating their suitability), while successful applicants could only be charged with similar costs, and, on any renewal, with the costs of monitoring and enforcing their compliance with their licence in the past.
+This would, inevitably, leave the licensing authority out of pocket in operating and enforcing the licensing scheme for the benefit of those obtaining licences, since the authority would have no recourse against any applicant for the costs of enforcing the scheme against the operators of unlicensed sex establishments, even though such enforcement was for the benefit of licensed operators.
+The authority would have to have recourse to any general funds which it might have, ie those raised in the case of Westminster City Council from rate or council tax payers or received from central government.
+What the remedy would be in the case of other regulatory or professional bodies which might have no general funds and no ability to raise funds in any such way is not clear.
+The Supreme Court has not only had the benefit of fuller and more refined arguments from the parties.
+It has also had the benefit of interventions by HM Treasury and a considerable number of regulatory or professional bodies, concerned about their ability to recover fees for enforcing other regulatory schemes, which might be regarded as similar to that presently under consideration.
+Westminster City Councils case has been put in two alternative ways.
+The first way is that the concept of authorisation procedures and formalities in article 13(2) can be interpreted widely enough to cover all aspects of the licensing scheme, including the costs of its enforcement against unlicensed operators.
+The second way is that article 13(2) (and so regulation 18) is concerned and concerned only with charges made in respect of authorisation procedures and their cost.
+The refundable charges which accompany any licence application do not relate to authorisation procedures or their cost.
+They relate to the running and enforcement of the licensing scheme for the benefit of those whose applications are successful; it is for that reason they are refundable to those whose applications are unsuccessful.
+I have no hesitation in rejecting the first way in which Westminster City Council puts its case.
+Article 13(2) is only concerned with authorisation procedures and formalities at the stage when a person is seeking permission to access or exercise a service activity.
+That is its natural meaning, read with the definition of authorisation scheme in article 4.
+Article 13(2) is not concerned with fees which may be required to be paid (eg annually) for the possession, retention or renewal of a licence, once the authorisation stage is satisfactorily past.
+The charges which the applicants may incur from their application to which article 13(2) refers cannot sensibly embrace fees of this nature payable by successful applicants for the licence or its retention or renewal after the authorisation stage.
+Nor can they in other language versions eg the French, where les charges qui peuvent en dcouler refers to charges arising from the procedures and formalities, and the German, where eventuelle dem Antragsteller mit dem Antrag entstehende Kosten refers to costs associated with the application.
+The respondents do not, as the court understands their position, quarrel with the conclusion expressed in para 15.
+It is also consistent with recitals 39 to 49 to the Directive, which are admissible as aids to its construction.
+These recitals include the following: (39) The concept of authorisation scheme should cover, inter alia, the administrative procedures for granting authorisations, licences, approvals or concessions, and also the obligation, in order to be eligible to exercise the activity, to be registered as a member of a profession or entered in a register, roll or database, to be officially appointed to a body or to obtain a card attesting to membership of a particular profession.
+Authorisation may be granted not only by a formal decision but also by an implicit decision arising, for example, from the silence of the competent authority or from the fact that the interested party must await acknowledgement of receipt of a declaration in order to commence the activity in question or for the latter to become lawful. (42) The rules relating to administrative procedures should not aim at harmonising administrative procedures but at removing overly burdensome authorisation schemes, procedures and formalities that hinder the freedom of establishment and the creation of new service undertakings therefrom. (43) One of the fundamental difficulties faced, in particular by SMEs (small and medium sized enterprises), in accessing service activities and exercising them is the complexity, length and legal uncertainty of administrative procedures.
+For this reason, following the example of certain modernising and good administrative practice initiatives undertaken at Community and national level, it is necessary to establish principles of administrative simplification, inter alia through the limitation of the obligation of prior authorisation to cases in which it is essential and the introduction of the principle of tacit authorisation by the competent authorities after a certain period of time elapsed.
+Such modernising action, while maintaining the requirements on transparency and the updating of information relating to operators, is intended to eliminate the delays, costs and dissuasive effects which arise, for example, from unnecessary or excessively complex and burdensome procedures, the duplication of procedures, the red tape involved in submitting documents, the arbitrary use of powers by the competent authorities, indeterminate or excessively long periods before a response is given, the limited duration of validity of authorisations granted and disproportionate fees and penalties.
+Such practices have particularly significant dissuasive effects on providers wishing to develop their activities in other Member States and require coordinated modernisation within an enlarged internal market of 25 Member States.
+Recital (49) also expressly contemplates that there can be fees of a supervisory body.
+It follows from paras 15 and 16 above that article 13(2) (and so regulation 18) is concerned and concerned only with charges made in respect of authorisation procedures and their cost, and that nothing in article 13(2) precludes a licensing authority from charging a fee for the possession or retention of a licence, and making this licence conditional upon payment of such fee.
+Any such fee would however have to comply with the requirements, including that of proportionality, identified in section 2 of Chapter III and section 1 of Chapter IV.
+But there is no reason why it should not be set at a level enabling the authority to recover from licensed operators the full cost of running and enforcing the licensing scheme, including the costs of enforcement and proceedings against those operating sex establishments without licences.
+In over long written submissions submitted after the hearing in response to a letter from the Court, the respondents have, however, emphasised that they do not accept that this enables a licensing authority to stipulate for the payment of such a fee on the grant or renewal of a licence in or as part of the application for a licence.
+Although the respondents did not develop their case in this way or identify any such typology, the logic of the respondents case must, as I understand it, be that article 13(2) precludes a licensing authority from operating a scheme of either of the following types: Type A: Applications for licences are made on terms that the applicant must pay: i) on making the application, the costs of the authorisation procedures and formalities, and on the application being successful, a further fee to cover the costs of the running and enforcement of the licensing scheme. ii) Type B: Applications for licences are made on terms that the applicant must pay: i) on making the application, the costs of the authorisation procedures and formalities at the same time, but on the basis that it is refundable if the application is unsuccessful, a further fee to cover the costs of the running and enforcement of the licensing scheme. ii) Westminster City Council has until now operated a scheme of type B, as set out in paras 2 and 3 above.
+The respondents case is that, under both types of scheme (A and B), the requirement to pay the further fee mentioned in sub paras (ii) above is an aspect of the authorisation scheme within the meaning of the Directive.
+In the case of a type A, I have no doubt that it is not.
+It is a mere provision that, if and when authorisation is successfully obtained, the actual grant or renewal of a licence will be subject to payment of a fee to cover enforcement costs.
+Once it is accepted (paras 15 to 17 above) that article 13(2) permits a licensing authority to levy on a successful applicant, in respect of the possession or retention of a licence, charges enabling the authority to recover the full cost of running and enforcing the scheme, it would be incongruous if an application could not refer to or include a requirement to pay such charges on the application being successful.
+The inclusion in the application of a requirement to pay a licence fee for the possession or retention of a licence, if the application is successful, does not turn that requirement into an authorisation procedure or formality or into a charge incurred from the application.
+It remains a licence fee incurred for the possession or retention of the licence.
+That leaves for consideration whether article 13(2) permits a scheme of type B.
+In the view of at least some members of the Court, this is more problematic.
+Under a scheme of type B, every applicant is required to pay up front even though on a refundable basis a sum which is referable not to the costs of handling the application, but to costs which will be incurred for the benefit only of successful applicants.
+This is a requirement which attaches to the application, not to its success.
+The question is whether it infringes article 13(2).
+The argument for treating article 13(2) as applicable to the requirement to pay the further fee mentioned in (ii) under a scheme of type B starts with the proposition that the requirement amounts to an authorisation procedure or formality.
+It is not suggested that the requirement could or would unduly complicate or delay the provision of the service.
+But, as the argument developed before the Supreme Court, two other points emerged: i) First, the respondents submit that a requirement to make even a refundable payment could have a potentially dissuasive effect on applicants. ii) Second, they submit that even a refundable payment constitutes a charge, and that such a charge infringes article 13(2) because it exceeds the cost, understood as the cost to Westminster City Council, of the procedures.
+The first point was not the subject of any submissions, evidence or investigation in the courts below, where the arguments were put more broadly.
+Whether something is dissuasive is on the face of it a question of fact and judgment.
+The refundable part of the fee payable on application is quite substantial, but sex shops are no doubt profitable or there would be no applicants, and the refundable part is a sum which anyone applying for a licence must be willing and able to pay for a licence.
+The Supreme Court was also informed by Mr Kolvin QC, counsel for the respondents, that it takes typically two months for an application to be decided, with the refund being then made if the application is refused; and that, if such a refusal is challenged by judicial review, any refund will await the outcome of the judicial review, which takes about six months.
+There is, on the material before the Supreme Court, no factual or evidential basis for a conclusion that a requirement to accompany an application with a payment refundable if the application fails could or would be likely to dissuade these or any other applicants from making any application for a sex establishment licence.
+I would not therefore accept the respondents submission on the first point.
+As to the second point, I agree that the reference in article 13(2) to the cost of the procedures means their cost to Westminster City Council.
+The question is therefore whether the requirement to make a payment refundable on failure of an application is a charge.
+When the application succeeds, the payment becomes due unconditionally.
+When the application fails, the payment is refundable and refunded.
+But is it a charge to have to advance the payment, in order to await one or other of these occurrences? Again, so far as this is a question of fact, there is no evidence that it cost these respondents, or any other applicants for sex establishment licences, anything to put up and make such payments during the period while any application was being considered.
+If the onus is on the respondents to establish that making such a payment on a refundable basis cost them anything, they have not done so.
+On the other hand, there might sometimes be a cost attached, eg by way of borrowing costs or even loss of interest.
+The questions thus arising are (1) whether the requirement to pay a fee including the second refundable part means, as a matter of law and without more, that the respondents incurred a charge from their applications which was contrary to article 13(2) in so far as it exceeded any cost to Westminster City Council of processing the application, or (2) whether a conclusion that such a requirement should be regarded as involving a charge or, if it is so to be regarded, a charge exceeding the cost to Westminster City Council of processing the application depends on the effect of further (and if so what) circumstances, for example: (a) any evidence establishing that the payment of the second refundable part involved or would be likely to involve an applicant in some cost or loss, (b) any saving in the costs to Westminster City Council of processing applications (and so in their non refundable cost) that would result from requiring an up front fee consisting of both parts to be paid by all applicants.
+No authority addressing these questions was cited to the Supreme Court, and the answers to them are in my view unclear.
+Accordingly, it is, I consider, necessary for the Court to make a reference to the Court of Justice in Luxembourg on this point.
+The respondents sought to raise further objections going outside their case under article 13(2) on the requirement to make up front a refundable payment on account of the costs of running and enforcing a licensing scheme for the benefit of licensed operators of sex establishments.
+The new objections are that to charge licensed operators with such costs was and is, as a matter of principle and/or on the facts of this case, disproportionate and/or contrary to articles 9(1)(c) and/or 16 of the Directive and/or contrary to articles 49 and/or 56 TFEU.
+These are new and wider allegations involving issues of fact and law, which could and should have been raised for consideration and adjudication in the courts below, and which are not now open to the respondents.
+I need say no more about them.
+It follows from the above that Westminster City Councils appeal should in my view succeed to an extent entitling it to a declaration that a scheme of type A is and would be consistent with regulation 18 of the Regulations and article 13(2) of the Directive.
+The question whether and when a scheme of type B is as a matter of law consistent with article 13(2) should be referred to the Court of Justice.
+I would invite the parties to make any proposals they may wish for any reformulation of the above questions within 14 days for the Supreme Courts consideration.
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+The issues in this appeal are (i) whether the Protection from Eviction Act 1977 (PEA 1977) requires a local housing authority to obtain a court order before taking possession of interim accommodation it provided to an apparently homeless person while it investigated whether it owed him or her a duty under Part VII of the Housing Act 1996 (the 1996 Act), and (ii) whether a public authority, which evicts such a person when its statutory duty to provide such interim accommodation ceases without first obtaining a court order for possession, violates that persons rights under article 8 of the European Convention on Human Rights (ECHR).
+Factual background
+CN was born on 3 August 1994.
+His mother (JN) applied to the London Borough of Lewisham (Lewisham) for assistance under Part VII of the 1996 Act in August 2009 and Lewisham arranged for a housing association to grant her an assured shorthold tenancy which commenced in May 2010.
+JN and her family became homeless in November 2011 after the housing association obtained an order for possession because of arrears of rent.
+JN again applied to Lewisham for homelessness assistance.
+On 15 November 2011 Lewisham, fulfilling its duty under section 188 of the 1996 Act, granted JN a licence of a five bedroom house with communal kitchen and bathroom pending its inquiries under section 184 of that Act as to whether she was eligible for assistance and, if so, what duty, if any, was owed to her.
+The property was privately owned.
+Its owner licensed it to Lewisham for use as temporary accommodation for homeless persons.
+On 15 December 2011 Lewisham wrote to JN to intimate its decision under section 184 of the 1996 Act (the section 184 decision).
+It stated that its duty to house her had come to an end because she had become homeless intentionally from the housing association property.
+Lewisham informed her that it would terminate the temporary accommodation within 28 days and that she would be served with a notice to vacate shortly.
+It stated that it was under a duty to provide her with advice and assistance in her efforts to secure accommodation and invited her to contact its housing options centre for that purpose.
+The letter also informed her of her right to request a review under section 202 of the 1996 Act and enclosed a leaflet explaining the review process.
+Lewishams Homeless Families Floating Support Service carried out a needs assessment on 12 January 2012 and concluded that the family did not need the support which that service provided.
+On 5 March 2012 JN requested a review of the section 184 decision and instructed solicitors to represent her.
+Lewisham extended her interim accommodation pending the outcome of the review.
+On 27 March 2012 Lewisham wrote to inform her that the review officer had upheld the section 184 decision and had found that she had become homeless intentionally.
+It intimated that its duty to secure accommodation for her had come to an end and gave her 28 days to leave the property.
+Lewisham informed her that she was entitled to advice and assistance from its housing options centre and that she could appeal to the county court on a point of law against the outcome of the section 202 review.
+JN chose not to do so.
+Thereafter JNs solicitors requested an assessment under the Children Act 1989.
+On 29 April 2012 the solicitors wrote to challenge Lewishams decision to evict her without a court order and before completing an assessment under the Children Act 1989.
+Lewisham extended the provision of temporary accommodation until the outcome of that assessment.
+Lewisham wrote on 30 April 2012 with a copy of the assessment and intimated that the accommodation would cease on 1 May 2012.
+In response, CN issued the judicial review claim which has given rise to the appeal to this court.
+ZH was born on 23 March 2012.
+His mother (FI) was born in 1991 and has a younger sister (MI) who was born in 1994.
+FI had an assured tenancy of a house in Liverpool.
+She left Liverpool in October 2011 to live with her aunt in London.
+In August 2012 her aunt asked FI to leave and on 7 September 2012 FI applied to the London Borough of Newham (Newham) for assistance under Part VII of the 1996 Act.
+In a letter dated 26 November 2012 Newham, acting under section 188 of the 1996 Act, granted FI a licence to occupy a two bedroom self contained flat on a day to day basis.
+Newham had licensed the property from a private sector company (RC) which provided spot booked bed and breakfast and nightly let accommodation for homeless and other persons.
+In a letter dated 19 February 2013 Newham advised FI that it had decided that she was homeless and in priority need but that she had become homeless intentionally by giving up her assured tenancy in Liverpool.
+Newham stated that it would help her search for alternative accommodation and allow her to stay in her current accommodation until 18 March 2013.
+Newham also provided her with written advice and informed her of her right to review the decision.
+On the same day solicitors acting for ZH asked Newham to review the decision and for accommodation pending the review.
+The solicitors also informed RC of their view that RC could not evict without first obtaining a court order.
+In a letter dated 14 March 2013 Newham refused to provide accommodation pending a review and told FI that she must leave the property by 21 March 2013.
+ZH commenced judicial review proceedings on 18 March 2013 in which he challenged the decision to evict without first obtaining a court order.
+After an assessment under the Children Act 1989 Newham undertook to provide interim accommodation and financial support to assist FI in securing private rented accommodation.
+Newham also carried out a section 202 review which FI appealed to the county court.
+That appeal settled after Newham, in September 2013, accepted that it owed FI a full housing duty under section 193(2) of the 1996 Act, namely to secure that accommodation was available for her to occupy (the full housing duty).
+By that stage ZHs case had been linked to CNs case in the Court of Appeal.
+The legal proceedings
+CN was initially refused permission to proceed with the judicial review claim.
+That decision was appealed and on 23 November 2012 Davis LJ granted permission for the judicial review and ordered the claim to be retained in the Court of Appeal for a hearing.
+On 9 May 2013 Sales J gave ZH permission for his judicial review and transferred it to the Court of Appeal.
+The two judicial review claims were heard in June 2013; and on 11 July 2013 the Court of Appeal handed down judgment dismissing the claims.
+Interim injunctions have protected CNs occupation of accommodation and on 23 November 2012 Davis LJ continued the injunction pending final disposal of the appeal.
+Although Newham has provided ZH with accommodation in accordance with its full housing duty, the parties agreed that it was appropriate that his case should be considered with that of CN in this appeal.
+The homelessness legislation
+For many years Governments in the United Kingdom have sought to alleviate the suffering caused by homelessness.
+In Part III of the National Assistance Act 1948 local authorities were placed under a duty to provide temporary accommodation to persons who were in urgent need of it.
+The accommodation was to be provided in premises which the relevant local authority or another local authority managed or in the premises of a voluntary organisation to which the local authority made appropriate payments (sections 21 and 26).
+The local authority was empowered to make rules for the management of the premises which entitled it to require a person to leave the premises if he was no longer entitled to receive accommodation under that Part of the Act (section 23).
+The Housing (Homeless Persons) Act 1977 replaced the provisions of the 1948 Act, by which only temporary accommodation was provided, with a statutory regime which also provided longer term accommodation for the homeless.
+That regime in its essentials survives in the 1996 Act.
+In particular, the 1977 Act introduced: i) the concept of priority need (section 2), ii) the obligation on the local housing authority to provide temporary accommodation while it investigates whether the applicant is homeless and in priority need and whether he or she is homeless intentionally (section 3), and iii) the duties, arising from the results of that investigation, (a) to provide advice and appropriate assistance, (b) to provide temporary accommodation for a period to give a reasonable opportunity to secure other accommodation, or (c) to secure that accommodation becomes available for occupation (section 4).
+The 1977 Act was consolidated into wider housing legislation in Part III of the Housing Act 1985.
+That in turn was repealed by the 1996 Act, which in Part VII provides the current statutory regime for tackling homelessness.
+I need only summarise the relevant provisions of the 1996 Act.
+When an applicant applies for accommodation or assistance in obtaining
+accommodation (section 183), the local housing authority carries out
+inquiries to satisfy itself whether he or she is eligible for assistance and, if so, what if any duty is owed (section 184).
+Of central importance in this appeal is the interim duty to accommodate under section 188.
+Section 188(1) provides: If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part.
+Section 188(3) provides: The duty ceases when the authoritys decision is notified to the applicant, even if the applicant requests a review of the decision (see section 202).
+The authority may secure that accommodation is available for the applicants occupation pending a decision on a review.
+The possible results of section 184 investigation, so far as relevant, are as follows.
+If the local housing authority is satisfied that the applicant is homeless, eligible for assistance but homeless intentionally, its duty, if he or she has a priority need, is (a) to secure that accommodation is available for a period to give a reasonable opportunity of securing accommodation for occupation and (b) to provide advice and assistance in attempts to secure accommodation (section 190(2)).
+If not satisfied that the applicant has a priority need, the authoritys duty is confined to (b) above (section 190(3)).
+If the authority is satisfied that the applicant is homeless and eligible for assistance, not satisfied that he or she is intentionally homeless, but also not satisfied that he or she has a priority need, the duty is to provide advice and assistance as in (b) above (section 192).
+If the authority is satisfied that the applicant is homeless, eligible for assistance and has a priority need and is not satisfied that he or she became homeless intentionally, it is under a duty to secure that accommodation is available for occupation by the applicant (section 193(2)).
+In this appeal we are concerned only with whether an applicant is entitled to both a set period of notice and a court order before eviction if, on completing the section 188 investigation, a local authority finds him or her to be homeless
+intentionally or otherwise not entitled to the full housing duty under section 193
+of the 1996 Act.
+The logic of the answer to that question will apply also to other temporary accommodation provided under Part VII of the 1996 Act, namely sections 188(3) (above), 190(2) (above), 200(1) (accommodation pending a possible referral to another authority), and 204(4) (accommodation pending the determination of an appeal).
+Protection from eviction legislation
+Abuses by private sector landlords in the 1950s and 1960s led to measures to regulate the eviction of tenants in section 16 of the Rent Act 1957 and Part III of the Rent Act 1965.
+PEA 1977 consolidated those provisions and related enactments.
+Section 1 makes the unlawful eviction or harassment of a residential occupier a criminal offence.
+Section 3 prohibits eviction without due process of law.
+Of particular relevance are section 3(1) and (2B).
+Section 3(1), which, subject to an immaterial amendment, is in the same terms as originally enacted, provides: the tenancy (in this section referred to as the former Where any premises have been let as a dwelling under a tenancy which is neither a statutorily protected tenancy nor an excluded tenancy and (a) tenancy) has come to an end, but (b) of them, it shall not be lawful for the owner to enforce against the occupier, otherwise than by proceedings in the court, his right to recover possession of the premises.
+the occupier continues to reside in the premises or part
+Section 3(2B), which was inserted by the Housing Act 1988, provides: Subsections (1) and (2) above apply in relation to any premises occupied as a dwelling under a licence, other than an excluded licence, as they apply in relation to premises let as a dwelling under a tenancy, and in those subsections the expressions let and tenancy shall be construed accordingly.
+Section 3A, which the 1988 Act also introduced, listed excluded tenancies and licences.
+The listed exclusions now include among others a tenancy or licence granted as a temporary expedient to a trespasser (section 3A(6)), a tenancy or licence to occupy premises for a holiday (i.e. a holiday let) or if granted otherwise than for money or moneys worth (i.e. a bare licence) (section 3A(7)), a tenancy or licence granted to provide accommodation under Part VI of the Immigration and Asylum Act 1999 (i.e. accommodation provided to asylum seekers and their dependants) (section 3A(7A)) or temporary accommodation to displaced persons (section 3A(7C)), and a licence which confers rights of occupation in a hostel provided by specified bodies (section 3A(8)).
+There is no general exclusion in section 3A of accommodation provided under Part VII of the 1996 Act or in particular under section 188 of that Act.
+Section 5(1A) of PEA 1977 provides that a notice to determine a periodic licence to occupy premises as a dwelling (other than an excluded licence) is valid only if it is in writing and contains prescribed information and is given not less than 4 weeks before the date on which it is to take effect.
+Accordingly, where a person grants a licence to which PEA 1977 applies, he must give notice of at least 28 days and also obtain a court order to regain possession of the premises.
+While counsel could not agree on the likely timescale of average court proceedings, it is likely that, in uncontested proceedings, a local authority might often have to wait several months to recover possession of a property provided as interim accommodation if such accommodation is subject to PEA 1977.
+In contested proceedings the wait would probably be longer.
+Lewishams experience is that it can take between 3 and 6 months to recover possession in undefended proceedings in the county court.
+Newhams experience is that such undefended proceedings take between 3 and 4 months.
+The first issue: the appellants challenge
+On the first issue the appellants case was straightforward.
+Mr Arden submitted (i) that PEA 1977 requires a court order to recover possession of premises occupied as a dwelling under a licence (section 3(2B)) and (ii) that Parliament had set out comprehensively in section 3A of PEA 1977 the tenancies and licences which were to be excluded from the scope of section 3 of that Act.
+As a result, an owner can take possession of the accommodation provided by a local housing authority under section 188 of the 1996 Act only after he has obtained a court order.
+The court must give effect to the clear words of Parliament.
+In support of his submission he also referred, by way of contrast, to other legislation which contained express exclusions and, he submitted, supported the view that Parliament viewed temporary accommodation provided to the homeless as being let as a separate dwelling, a phrase which has long been the key definition of property which was subject to statutory rent restrictions and security of tenure.
+He submitted that, if premises were let as a separate dwelling, they were necessarily let as a dwelling in section 3 of PEA 1977.
+He referred to the Housing Act 1985, which in Schedule 1 paragraph 4 expressly excluded all tenancies granted under Part VII of the 1996 Act from the security of tenure which the Housing Act 1980 had introduced for public sector tenants.
+Similarly, section 209 of the 1996 Act (adapting earlier provision in section 1(6) of the Housing Act 1988) provides that a tenancy granted by a private landlord under arrangements which a local housing authority makes in pursuance of its interim duties under sections 188, 190, 200 or 204(4) cannot be an assured tenancy before the end of 12 months after the date on which the applicant is notified of the relevant decision or outcome of the appeal unless the landlord has given notice to the contrary.
+In short, he submitted that Parliament had exempted the temporary provision of accommodation to homeless persons from security of tenure but not from PEA 1977.
+If that was correct, the extension of PEA 1977 to cover licences in 1988 meant that temporary accommodation provided to a homeless person under a licence also fell within the scope of that Act.
+He also drew attention to section 130 of the Social Security Contributions and Benefits Act 1992, which gives an entitlement to housing benefit when a person is liable to make payments in respect of a dwelling which he occupies as his home.
+Housing benefit is often paid to people who occupy temporary accommodation under Part VII of the 1996 Act.
+This supported the view that such accommodation should be treated as a dwelling under PEA 1977.
+Discussion of the first issue
+(i) licence to occupy premises as a dwelling
+The first issue is whether the premises, which the authorities provided to CN and ZH as temporary occupation under section 188 of the 1996 Act, were licensed for occupation as a dwelling.
+Counsel agreed that the phrases let as a dwelling under a tenancy in section 3(1) and premises occupied as a dwelling under a licence in section 3(2B) of PEA 1977 both addressed the purpose of the tenancy or licence rather than the use of the premises by the occupier.
+I also agree: section 3(2B) (para 18 above) applies section 3(1) to licensed premises; as section 3(1) looks to the purpose of the lease, so also must section 3(2B) look to the purpose of the licence.
+Unless that licence is superseded by a later contract, either express or inferred from the parties actions, which provides for a different user, the court looks to the purpose of the original licence.
+See the judgments of the Court of Appeal on analogous provisions in the Rent Acts in Wolfe v Hogan [1949] 2 KB 194 and Russell v Booker (1982) 5 HLR 10.
+See also, in the context of accommodation initially provided under section 188 of the 1996 Act, the judgment of Elias J in Rogerson v Wigan Metropolitan Borough Council [2005] HLR 129, at paras 33 and 34.
+Accordingly, as there is no suggestion that the legal basis of the occupation by CN and ZH changed since the licences were granted, PEA 1977 instructs us in each case to look to the purpose of the licence to see if it is for occupation as a dwelling.
+The word dwelling is not a technical word with a precise scientific meaning.
+Nor does it have a fixed meaning.
+Words such as live at, reside and dwell are ordinary words of the English language, as is home.
+It is clear, as the respondent local authorities submitted, that the word dwelling in the phrase, let as a dwelling has been used in PEA 1977 in the same sense as that word was used in the phrase let as a separate dwelling in the Rent Acts.
+Section 3 of PEA 1977 had its origin in section 32 of the Rent Act 1965 and section 5 in section 16 of the Rent Act 1957.
+There is no reason to think that Parliament intended the word dwelling to have a different meaning in sections on protection from eviction from its meaning in provisions relating to rent restriction and security of tenure.
+In Skinner v Geary [1931] 2 KB 546, Scrutton LJ (at 564) said that the Rent Acts did not protect a tenant who was not in occupation of a house in the sense that the house was his home.
+More recently, in Uratemp Ventures Ltd v Collins [2002] 1 AC 301 the speeches in the House of Lords showed that the word dwelling had different shades of meaning.
+Lord Bingham of Cornhill (at para 10) said that a dwelling house was the place where someone dwells, lives or resides.
+Lord Steyn (at para 15) suggested that the court should not put restrictive glosses on the word which conveyed the idea of a place where someone lived.
+Lord Millett said (at para 30): The words dwell and dwelling are not terms of art with a specialised legal meaning.
+They are ordinary English words, even if they are perhaps no longer in common use.
+They mean the same as inhabit and habitation or more precisely abide and abode, and refer to the place where one lives and makes ones home.
+They suggest a greater degree of settled occupation than reside and residence, connoting the place where the occupier habitually sleeps and usually eats, In my view there is no strict hierarchy in terms of settled occupation between the words live at, reside and dwell and much may depend on the context in which the words are used.
+But there are nuances and as a general rule I agree with Lord Millett that dwelling suggests a greater degree of settled occupation than residence. 28.
+Under the Rent Acts when the court considers whether a property is let as a separate dwelling it looks to the purpose of the tenancy.
+That involves a consideration of both the terms of the contract and the factual matrix of the letting.
+Thus a tenancy at will is the letting of a dwelling, notwithstanding the precariousness of the contractual right to occupy, where it is clear that the indeterminate period of authorised occupation is consistent with an intention that the tenant establishes a home in the property.
+In ascertaining the nature of the tenancy the court looks at the lease, which is a practical document dealing with a practical situation (Danckwerts J in Levermore v Jobey [1956] 1 WLR 697 CA, 708), and also the surrounding circumstances.
+It considers the parties contract, the nature of the premises and also the statutory intention.
+Thus, for example, in Martin Estates Ltd v Watt and Hunter [1925] NI 79 (CA), in which police officers occupying police barracks sought to resist the recovery of possession on the basis that the property was let as a dwelling house, the Northern Irish Court of Appeal rejected the defence.
+Moore LJ (86 87) held that housing let for the public service and occupied by public servants was not a dwelling for the purposes of the Rent Acts and that policemen in police barracks, patients in hospital and inmates in a gaol could not claim security of tenure. 30.
+A similar approach is appropriate here.
+The court, in deciding whether the accommodation involved in these appeals falls within the meaning of dwelling in section 3(1) of PEA 1977, must construe the terms of the relevant licences in the context of the applicable provisions of the 1996 Act.
+Section 188(1) imposes on the local housing authority a duty with a low threshold.
+It arises if the authority has reason to believe that the applicant may be homeless, eligible for assistance and have a priority need.
+The duty is to secure that accommodation is available for his or her occupation pending the authoritys section 184 decision.
+The authority is not under a duty to provide a particular form of accommodation or to provide the same accommodation for the applicant throughout the period pending its decision.
+It can require the applicant to transfer from one address to another more than once during that period.
+The duty to secure short term accommodation under section 190(2), in order to give someone who is found to be homeless intentionally a reasonable opportunity to secure alternative accommodation for occupation, is similarly limited.
+So too are the powers under sections 188(3) and 204(4) to provide accommodation pending a decision on a review or pending an appeal.
+In some cases the authority can reach a section 184 decision very quickly.
+Other cases require more complex inquiries.
+The Homelessness Code of Guidance for Local Authorities (2006), which the Government issued under section 182 of the 1996 Act, suggested (at para 6.16) that inquiries should whenever possible be concluded within 33 working days.
+In CNs case Lewisham notified JN of its section 184 decision within one month after it provided the interim accommodation.
+Newhams inquiries took almost 3 months after it granted FI the licence of the temporary accommodation. 32.
+The licences granted to the applicants in these cases are consistent with the limited and short term nature of the authoritys duty.
+Lewishams licence to JN was an offer of interim nightly paid accommodation for about two weeks.
+It stated: 31.
+As this is nightly paid temporary accommodation it is likely that you will be moved with short notice.
+When this occurs you will be expected to move on either the same day or the next working day.
+Also, if you plan to not stay at your accommodation for more than 1 night you must inform the council.
+JN also undertook in the licence that only the persons named in her application for assistance would occupy the accommodation.
+Newhams licence to FI was for interim accommodation on a day to day basis while it decided whether it had a duty to provide her with re housing.
+Newham explained that it had entered into arrangements with accommodation providers to provide self contained accommodation and hotel accommodation which it let on a day to day basis.
+It stated: You occupy interim accommodation on a day to day basis.
+You do not therefore have the rights of security of a tenant.
+In the event that the proprietor does not want to continue to allow the council to use the property, we shall have to withdraw our permission for you to live there and ask you to move to other accommodation which we shall provide.
+If there is a need to move you we shall endeavour to tell you that as soon as we can.
+As you do not enjoy the rights of a tenant, if you are required to leave the interim accommodation and refuse there is no obligation on the proprietor of the premises or the council to obtain a Court Order requiring you to leave the premises. 33.
+Newham also required FI to sign a daily register and restricted those allowed to reside in the accommodation to three named individuals, namely FI, ZH and MI.
+In my view there are a number of features that militate against such licences being licences to occupy premises as a dwelling.
+First, there is the statutory context of the licence in the 1996 Act, namely the provision by the local housing authority to a homeless person of short term accommodation at one or more locations and in one or more forms of accommodation pending the section 184 decision, the outcome of a review or appeal, or the expiry of the reasonable period under section 190(2).
+The statutory duty in section 188 of the 1996 Act is to secure accommodation for the applicant, not necessarily at one location, for a short and determinate period.
+Most significantly, a person who is given temporary accommodation under Part VII of the 1996 Act does not cease to be homeless.
+To hold otherwise would defeat the scheme of the 1996 Act.
+In Moran v Manchester City Council [2009] 1 WLR 1506, this was a matter of concession (paras 54 and 55) and Lady Hale (at para 65) stated an analogous principle that in most cases a woman who has left her home because of domestic (or other) violence within it remains homeless even if she has found a temporary haven in a womens refuge.
+Such temporary accommodation is not intended to provide a home.
+Another way of looking at the matter is that having a roof over your head in such short term accommodation does not give you a fixed abode. 34.
+Secondly, consistently with that statutory regime, each licence is a day to day or nightly licence which recognises that the authority may require the applicant to transfer to alternative accommodation at short notice.
+The licence in each case confers private law rights in relation to the property to which it relates, but the licence must be construed and the nature of those rights must be assessed in the context of the authoritys duties under the 1996 Act. 35.
+Thirdly, the imposition of the requirements of PEA 1977 would significantly hamper the operation by the authorities of the statutory scheme under the 1996 Act and its predecessor Acts.
+An authority would not be able to transfer an applicant from one location to another without either his or her consent or, alternatively, the obtaining of a court order.
+The authority, while awaiting the court order for possession, would have to provide accommodation to someone about whom it had made an adverse section 184 decision and to whom it had already given a reasonable opportunity to obtain alternative accommodation, thereby tying up scarce housing resources.
+In a time of strained public finances this may deprive other applicants who may have priority need of suitable accommodation and also restrict the authoritys ability to provide accommodation where it has a discretion to do so, as under sections 188(3) and 204(4) of the 1996 Act.
+Further, there seems little purpose in requiring court proceedings to recover possession as it is difficult to see what a homeless person could advance as a defence to the application, particularly as the 1996 Act contains its own provisions for challenging adverse decisions of the local authority by way of review and appeal to the court (para 69 below).
+In my view the policy considerations of the third point would not by themselves be determinative, but the features in combination, the legislative and factual context of licences, point to the conclusion that the temporary accommodation, which the authority provides in performance of its duties under section 188 of the 1996 Act, is not provided as a dwelling for the purpose of PEA 1977.
+I turn to the case law on which the respondent authorities relied for the more general proposition that a temporary residence cannot be a dwelling.
+There 36. 37. are dicta in those cases which support the proposition; but they also must be seen in context.
+Many of the judicial statements were made in cases in which a person alleged that he or she had two homes and the court had to decide if a second home fell within the scope of the Rent Acts.
+Walker v Ogilvy (1974) 29 P & CR 288 concerned a tenant of a flat which he used principally at weekends and for short holidays.
+The tenant had another permanent residence.
+Ormrod LJ (at p 293) stated that Parliament in passing the Rent Act 1968 never intended to protect people in occupation of what were in effect holiday houses.
+Regalian Securities Ltd v Scheuer (1982) 5 HLR 48 concerned the right of a protected tenant to become a statutory tenant on the termination of the protected tenancy under section 2(1)(a) of the Rent Act 1977, which required him to occupy the dwelling house as his residence.
+In that case the tenant occupied the flat as a temporary expedient for part of the time when the house, which his wife had purchased and in which they and their children lived, was let to others during the winter.
+The Court of Appeal held that his residence in the flat did not have the quality needed to attract the protections of the Rent Acts.
+Cumming Bruce LJ (at p 56) asked whether the second residence was used as a home rather than a place of convenient resort.
+Eveleigh LJ (at p 59) and May LJ (at p 62) took a similar approach, the latter asking whether there was occupation as a home.
+Cumming Bruce LJ (at p 58) stated two principles that were relevant in that context: First, the court enquires what is the extent and what are the characteristics of the user of the residence? When that is ascertained the court also enquires: Is the nature of the residence during the period that it persisted the kind of residence that is within the contemplation of the Rent Act? Is this the kind of residence that Parliament intended should clothe the tenant with the right to claim statutory protection? 38.
+In Swanbrae Ltd v Elliott (1986) 19 HLR 86 the Court of Appeal considered the quality of residence required where a person claimed to be a statutory tenant in succession to her mother, who had been a protected tenant, because she had resided in the premises with her before she died.
+The appellant had visited frequently and then had moved in on a part time basis to nurse her sick mother while retaining a home elsewhere.
+The Court held that residing with meant more than living at; a person claiming a statutory tenancy had to show that she had made her home in the premises.
+Swinton Thomas J (at p 90) distinguished the earlier case of Collier v Stoneman [1957] 1 WLR 1108 on its facts because Mrs Elliott had a tenancy of her own while in that case the claimant did not.
+He concluded (at p 95) that Mrs Elliott had not shown that she had made her home at the premises and become part of the household.
+Kerr LJ (at p 96) agreed and made the same distinction from other cases because Mrs Elliott had a permanent home of her own. 39.
+Similarly, in Freeman v Islington London Borough Council [2010] HLR 6, another succession to tenancy case in which the focus was on the statutory words resided with, the Court of Appeal adopted a similar approach, looking at the claimants actions and ascertaining whether they exhibited a home making intention rather than merely staying with the tenant for a limited time and a limited purpose: Jacob LJ at paras 28 and 33.
+In my view the statutory successor cases are of only limited assistance.
+Because of the different statutory provisions the court in each case looked objectively at the quality of the claimants residence and at her intention when living with the protected tenant.
+They establish that occupation which has the quality of home building is needed to obtain protection as a successor of a protected tenant.
+They did not entail an assessment of the purpose of a letting or licence, which the current case involves. 40. 41.
+MacMillan & Co Ltd v Rees [1946] 1 All ER 675 was not a case which involved an allegation that someone had two homes.
+It concerned the lease of premises as an office in which the tenant or her business partner were authorised to sleep when required.
+The Court of Appeal drew a distinction between an authorised user of merely sleeping or eating on premises and use as a dwelling house.
+Authorised acts, which were residential in character, did not make the business premises a dwelling house: Evershed J, delivering the judgment of the court at pp 677 678. 42.
+The respondent authorities and the Secretary of State also relied on the two Court of Appeal cases which have directly addressed the question whether PEA 1977 applies to temporary accommodation provided under section 188 of the 1996 Act or its predecessor Act.
+In Mohamed v Manek and Kensington and Chelsea LBC (1995) 27 HLR 439, the Court of Appeal was concerned with the predecessor provisions in section 63 of the Housing Act 1985 under which the local authority arranged for the provision to the claimant of interim bed and breakfast accommodation in a private hotel.
+Auld LJ (at p 450) held as a matter of construction that occupied as a dwelling under a licence in section 3(2B) of PEA 1977 did not apply to bed and breakfast accommodation provided as a temporary arrangement pending what is now a section 184 decision.
+He also stated that it did not accord with the ordinary use of language to describe temporary accommodation in a hotel or hostel for this purpose as premises occupied as a dwelling under a licence.
+Nourse LJ agreed and stated (at p 451) 43. 44.
+I rest my decision primarily on the simple proposition, derived from a purposive construction of both statutes, that accommodation made available for an applicant pursuant to section 63(1) of the Housing Act 1985 pending a decision as a result of the local housing authoritys inquiries under section 62 cannot, as a general rule, be premises let as a dwelling under a tenancy of premises occupied as a dwelling under a licence within section 3(1) and (2B) respectively of the Protection from Eviction Act 1977. [I]t cannot be a purpose of the 1977 Act to give protection to persons whose entirely transient needs bring them within section 63(1).
+Henry LJ agreed with both judgments.
+In Desnousse v Newham London Borough Council [2006] QB 831, which also concerned the application of PEA 1977 to arrangements entered into under section 188 of the 1996 Act (in that case a self contained flat), the Court of Appeal applied Mohamed v Manek in the face of a sustained challenge by Mr Arden which Lloyd LJ analysed in detail.
+The court held that the ratio of Mohamed v Manek was not confined to accommodation of the nature of a hotel or hostel but was a general proposition.
+The court was divided on whether the reading of section 3(2B) of PEA 1977 in Mohamed v Manek was compatible with article 8 of ECHR.
+Lloyd LJ (at para 143) held that it was not and that section 3 of the Human Rights Act 1998 required the court to apply section 3 of PEA 1977 to the occupation of self contained residential accommodation provided in pursuance of the local authoritys duties under section 188(1) or 190(2)(a) of the 1996 Act.
+Tuckey LJ and Pill LJ disagreed.
+I discuss article 8 of ECHR in paras 57 73 below.
+In Mohamed v Hammersmith and Fulham London Borough Council [2002] 1 AC 547 the House of Lords held that the occupation by a homeless person of interim accommodation provided under section 188 of the 1996 Act could be normal residence for the purpose of establishing a local connection under section 199(1)(a) of that Act.
+Lord Slynn of Hadley, with whom the other Law Lords agreed, stated (at para 18) that words like ordinary residence and normal residence take their precise meaning from the context of the legislation in which they appear.
+He suggested that the place that a person voluntarily accepts and in which he eats and sleeps is for the relevant time where he normally resides.
+The fact that the local authority had given him interim accommodation in performance of its statutory duty under section 188 of the 1996 Act did not prevent that accommodation from being the place where he was for the time normally resident.
+This is consistent with the view that Lord Millett expressed in Uratemp (para 26 above) that dwelling generally connotes a greater degree of settled occupation than residence. 45.
+Pulling together the threads of the case law, in my view the following can be stated: (i) the words live at, reside and dwell are ordinary words of the English language and do not have technical meanings, (ii) those words must be interpreted in the statutes in which they appear having regard to the purpose of those enactments, (iii) as a matter of nuance, dwelling as a general rule suggests a more settled occupation than residence and can be equated with ones home, although residence itself can in certain contexts (such as the two home cases) require such an equation, and (iv) under the 1996 Act a person remains homeless while he or she occupies temporary accommodation provided under sections 188(3), 190(2), 200(1) or 204(4) of the 1996 Act so long as the occupation is properly referable to the authoritys performance or exercise of those statutory duties or powers.
+In my view it is consistent with this approach to conclude in the context of PEA 1977 that an overnight or day to day licence of accommodation pending the making of a decision under section 184 or on review or appeal does not show any intention to allow the homeless applicant to make his or her home in that accommodation. (ii) The exclusions in section 3A of PEA 1977 47. 46.
+Mr Arden also contended that section 3(1) and (2B) of PEA 1977 covered all residential tenancies or licences unless they were expressly excluded by section 3A of that Act.
+The exclusions in section 3A included several arrangements which were likely to be temporary in nature.
+He submitted that by defining the excluded tenancies and licences, Parliament had expressed an intention that all other residential tenancies and licences were subject to the protections in sections 3 and 5 of PEA 1977.
+I am not persuaded that that submission is correct.
+If, by providing the exclusions, Parliament meant that otherwise the excluded tenancies or excluded licences would have been within the concepts of let as a dwelling or occupied as a dwelling under a licence (section 3(1) and (2B)), that would have had the effect of altering the meaning of dwelling from that of the Rent Acts, in which the protection against eviction originated.
+As mentioned above, it is clear from prior case law (Walker v Ogilvy) that holiday lets did not fall within the expression let as a separate dwelling.
+But such lets are expressly excluded in section 3A(7)(a).
+Similarly, the Rent Acts treated a tenancy under which the occupier shared accommodation with the landlord and other persons as a restricted contract rather than a protected tenancy: Rent Act 1977 section 21.
+Yet such was expressly excluded in 48. section 3A(2).
+In my view Parliament, by providing those exclusions, sought to confirm the scope of the statutory protection which the provisions of the Rent Acts or case law established rather than alter the concept of dwelling.
+While it is correct that, as Mr Arden submitted, the Housing (Homeless Persons) Act 1977, which was enacted at the same time as PEA 1977, could have excluded its provision of temporary accommodation from the scope of the latter Act, it was not necessary to do so.
+It may be correct, as both Mr Hutchings for the respondent local authorities and Mr Chamberlain for the Secretary of State contended, that several of the express exclusions of temporary accommodation involve circumstances in which the occupation may continue for significant periods of time.
+The exclusion in section 3A(6) of a tenancy or licence granted as a temporary expedient to a trespasser is an example of an exclusion of a letting which was intended to be temporary.
+But such lettings are on occasion intended to last for several years.
+See, for example, Smart v Lambeth London Borough Council [2014] HLR 7, in which a local authority granted a licence to a housing association which in turn allowed a housing cooperative to provide accommodation to former squatters on a licence which was initially for 5 years but was extended.
+But for the exclusion, such accommodation by providing settled occupation could readily fall within the scope of section 3 of PEA 1977.
+Similarly, the tenancy or licence granted to provide accommodation under Part VI of the Immigration and Asylum Act 1999 (section 3A(7A)) or under the Displaced Persons (Temporary Protection) Regulations 2005 (SI 2005 No 1379) (section 3A(7C)) can in some cases involve the provision of accommodation for prolonged periods which might prima facie bring it within section 3 of PEA 1977.
+The exclusions remove accommodation so provided from the scope of PEA 1977.
+But I do not rely on distinctions between certain types of temporary accommodation and another type.
+Rather I base my view on the meaning of dwelling in section 3 and the absence of any evidence of an intention on the part of Parliament to extend that meaning to cover accommodation which would not have been treated as a dwelling under the Rent Acts. 49.
+Absent an intention to re define the meaning of dwelling, it appears to me that Parliament in enacting and amending section 3A created several of the exclusions for the avoidance of doubt.
+One must address the prior question as to what is a dwelling.
+The absence of an exclusion for accommodation provided under section 188 of the 1996 Act does not mean that such accommodation falls within section 3 of PEA. (iii) Inferences from other statutes 50.
+As set out in para 22 above, Mr Arden also invited the court to draw an inference of parliamentary intention in PEA 1977 from provisions in other statutes.
+I am not persuaded that such inferences should be drawn.
+Section 209 of the 1996 Act, adapting the earlier provisions in the Housing Act 1985 (section 79(2) and Schedule 1 paragraph 4), and section 1(6) and (7) of the Housing Act 1988, prevents a tenancy from being an assured tenancy before the end of 12 months after the relevant decision by the local authority.
+But a tenancy which continued for such a period after a decision under section 184 or on review or appeal would in most cases have ceased to be properly referable to the provision of interim accommodation pending the decision (see para 24 above). 51.
+Housing benefit under section 130 of the Social Security Contributions and Benefits Act 1992 (the 1992 Act) has been given to people provided with temporary accommodation under the 1996 Act.
+That section provides: A person is entitled to housing benefit if he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home; It is argued that, if an applicant in temporary accommodation is entitled to housing benefit because she is occupying a dwelling as her home, she is also occupying a dwelling under a licence for the purposes of section 3(2B) of PEA 1977.
+But there are two answers which to my mind contradict this view.
+First, the social security legislation is in a different field of human activity from PEA 1977 and looks to the fact of occupation rather than the purpose of the letting.
+I see no reason why in the context of the 1992 Act temporary occupation of premises should not be treated as occupation as a home while in other legislation, which has different policy objectives, a different conclusion is reached.
+Secondly, the 1992 Act defines dwelling by reference to the type of building rather than its intended use.
+The definition of dwelling in section 137 is in these terms: any residential accommodation, whether or not consisting of the whole or part of a building and whether or not comprising separate and self contained premises. (iv) Settled practice and policy considerations 52.
+Mr Hutchings submitted that it had for years been a widespread practice of local housing authorities in London to arrange for the re possession of temporary accommodation provided under section 188 of the 1996 Act without first obtaining a court order.
+They had adopted and followed that practice in good faith and might face criminal sanctions if this court were to change the law.
+Their practice was consistent with the Secretary of States guidance in the Homelessness Code of Guidance for Local Authorities (2006) which (at para 7.11) refers to the general rule that accommodation provided under section 188(1) does not create a tenancy or licence under PEA 1977 but notes that the general rule may be displaced by an agreement between the authority and the applicant or if the accommodation is allowed to continue on more than a transient basis. 53.
+Mr Chamberlain further argued that Parliament had endorsed the Secretary of States construction of PEA 1977.
+Parliament, he submitted, should be taken to have been aware of the Court of Appeals judgments in Mohamed v Manek and Desnousse (the former having been decided in 1995 and the latter in 2006) and had not reversed those decisions although there had been opportunities to do so in legislation which amended either PEA 1977 or the 1996 Act.
+Lord Carnwath has set out this argument in more detail in his concurring judgment.
+It suffices for me to say that where Parliament re enacts a statutory provision which has been the subject of authoritative judicial interpretation, the court will readily infer that Parliament intended the re enacted provision to bear the meaning that case law had already established: Barras v Aberdeen Sea Trawling and Fishing Co Ltd [1933] AC 402, Viscount Buckmaster at pp 411 412.
+Applying that in the present case, one can readily conclude, as I have, that the word dwelling in the phrase let as a dwelling in PEA 1977 must bear the same meaning as it had in section 31 of the Rent Act 1965 and in the phrase let as a separate dwelling in the Rent Acts.
+Inferences from parliamentary inaction are more difficult.
+In my view, the settled practice principle, of which Lord Carnwath writes, is available where there is ambiguity in a statutory provision.
+But for the reasons set out above, I detect no ambiguity in section 3 of PEA 1977 in its application to a licence to a person who is and remains homeless throughout the period of interim accommodation: it does not apply. 54.
+Counsel also referred to considerations of policy.
+I accept, as Mr Arden submitted, that families with young children and other vulnerable people often invoke the homeless persons provisions of the 1996 Act.
+They are clearly worthy of protection.
+But that does not mean that a court order for eviction must be obtained when the authority has reached an adverse section 184 decision and terminates its licence of temporary occupation.
+As the respondent local authorities argued, private sector providers of accommodation for homeless persons depend on the local authorities for their business, which they would lose if they behaved irresponsibly in re possessing their properties.
+They are also subject to the Protection from Harassment Act 1997 and section 6 of the Criminal Law Act 1977 which prohibits the use or threats of violence to secure entry to premises.
+Further, as Mr Chamberlain submitted, good administration requires local housing authorities to use scarce public resources effectively in providing support for homeless persons.
+He referred to Auld LJ in Mohamed v Manek who stated (at pp 449 450): A councils ability efficiently to perform their public duty as a local housing authority could be seriously affected if the protection of the 1977 Act were automatically to attach to every temporarily housed unsuccessful applicant for housing just because he had been able to satisfy the low threshold under [section 184] for investigation of his application.
+In my view policy considerations do not point in one direction as a homeless person might prefer a court officer to control his or her eviction, and, in any event, as I have said (para 35 above) the inconvenience to local authorities is not sufficient by itself to determine the outcome this appeal. 55.
+For reasons which I discuss below, I do not consider that article 8 of ECHR requires a different, broader interpretation of the scope of section 3(1) and (2B) of PEA 1977. (v) Further clarification 56.
+I recognise that the conclusion which I have reached on this first issue has not found favour with Lord Neuberger or Lady Hale.
+It may be helpful if I comment briefly on some areas of disagreement.
+First, the provisions of PEA 1977 in issue in this appeal, which extended section 3 to licences and introduced the exclusions, were enacted in 1988, over a decade after the Housing (Homeless Persons) Act 1977, which created the new homelessness regime, came into operation.
+Thus while the concept of let as a dwelling predated the new homelessness legislation, its extension to licences and the enactment of the exclusions did not.
+Secondly, my emphasis on the terms of the licences which should be construed against the background of the interim duties of the 1996 Act (paras 33 and 34 above) entails a recognition that mere precariousness of occupation, as in a tenancy at will, would not exclude the statutory protection of PEA 1977 if one could infer that the property was let as a home; see para 29 above.
+It is not the mere precariousness of the occupation but the wider statutory context in which the licences were granted that reveals the true nature of the arrangement and supports the exclusion of section 3 of PEA 1977.
+Accordingly my interpretation does not provide a green light to unscrupulous landlords in other contexts. 57.
+Thirdly, I accept that, if other things were equal, the fact that a person is homeless for the purposes of the 1996 Act would not mean that as a matter of statutory interpretation he or she did not dwell in the provided accommodation for the purpose of another statute.
+I adopt a similar approach in my discussion of the 1992 Act in para 51 above.
+But if, as is my view, the Rent Acts and by extension PEA 1977 require a contract that is intended to give the occupant a degree of settled occupation, in other words a home, the context of the 1996 Act in which the licences were granted points clearly against their being licences of a dwelling for the purpose of PEA 1977.
+The second issue: Article 8 of ECHR 58.
+The appellants submission in short was that it is inherent in article 8 of ECHR that a public authority must always use court proceedings before it evicts someone from his or her home.
+Mr Arden submitted that it did not matter that the owner of the property in each case was a private sector landlord as the authority controlled the whole process.
+The authority decided whom it placed in accommodation and when the licence ended in each case. 59.
+Article 8 of ECHR, which section 1 of the Human Rights Act 1998 created as a Convention right in our domestic law, provides: 1.
+Everyone has the right to respect for his private and family life, his home and his correspondence. 2.
+There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 60.
+The respondent local authorities and the Secretary of State all conceded that article 8.1 was engaged in these appeals.
+But they did not accept that article 8 was engaged in all cases of temporary accommodation provided under Part VII of the 1996 Act and questioned whether a public authority was responsible for interference with an article 8 right when it was the private sector landlord who was evicting the homeless persons.
+I do not think that it is necessary to reach a concluded view on those matters or on the question of horizontal effect in this case.
+It is better to leave such issues to a case in which they have to be determined.
+Because of the view that I have reached on the position if article 8.2 were engaged, I am content to proceed on the basis that both article 8.1 and 8.2 are engaged.
+Discussion of the second issue 61.
+Article 8 of the ECHR so far as relevant is concerned with a persons right to respect for his or her home and regulates interference by public bodies with that right.
+In article 8 the concept of home is autonomous and does not depend on classification under domestic law.
+It is concerned with occupation in fact, and it is not limited to premises which are lawfully occupied or have been lawfully established.
+It is concerned with the existence of sufficient and continued links with a specific place.
+See among others Hounslow London Borough Council v Powell [2011] 2 AC 186, Lord Hope para 33; Prokopovich v Russia (2006) 43 EHRR 10, para 36; Kryvitska and Kryvitskyy v Ukraine App No 30856/03, para 40.
+Thus premises may not be let as a dwelling under PEA 1977 and yet be a home for the purposes of article 8 of the ECHR. 62.
+As is well known, an interference with an article 8 right must be in accordance with the law, in pursuit of a legitimate aim, and necessary in a democratic society for that aim.
+The latter notion implies a pressing social need and requires that measure to be proportionate to the legitimate aim pursued: Blei v Croatia (2005) 41 EHRR 13, at paras 55 59.
+Proportionality involves striking a fair balance between the interests of the individual and those of the community as a whole.
+The ECHR guarantees rights that are practical and effective.
+A public authority that interferes with a persons right to respect for his or her home, especially when it intervenes in the most extreme way by removing him or her from that home, must have in place a fair procedure in order to show that respect.
+This requires the occupier to be involved in the decision making process in order to protect his or her rights.
+In assessing the effectiveness of the procedure to achieve respect for the safeguarded rights the court looks to the whole proceedings involving the interference with the home.
+See Tysic v Poland (2007) 45 EHRR 42 paras 113 and 115; Blei v Croatia para 68; Zehentner v Austria (2011) 52 EHRR 22 para 54. 63.
+A fair procedure requires the occupant to have a right to raise the issue of the proportionality of the interference and to have that issue determined by an independent tribunal: Manchester City Council v Pinnock [2011] 2 AC 104, Lord Neuberger MR para 45; McCann v United Kingdom (2008) 47 EHRR 40, para 50; Kay v United Kingdom (2012) 54 EHRR 30, para 68; Pauli v Croatia [2009] ECHR 1614, para 43; Buckland v United Kingdom (2013) 56 EHRR 16, para 65.
+The appellants submit that that procedural protection requires the owner to obtain a court order before evicting the occupant, thus enabling the latter to raise the issue of proportionality as a defence.
+The respondent local authorities and the Secretary of State disagree and submit that it suffices if there are procedures by which the occupant can raise the issue before an independent tribunal. 64.
+The authoritys assessment of an applicants circumstances as a result of its inquiries under section 184 of the 1996 Act is intimately linked to the decision to end the provision of temporary accommodation.
+The authority provides the accommodation while undertaking the inquiries and its decision as to its housing duties brings to an end its obligation to provide the interim accommodation.
+In my view, when one looks at the procedures as a whole, the procedural safeguards contained in the 1996 Act, the procedures available under the Children Act 1989 and the possibility of judicial review of the authoritys section 202 decision by a court with enhanced powers are sufficient to comply with article 8 of ECHR in this context.
+See paras 70 and 71 below.
+Article 8s procedural guarantee does not require further involvement of the court in granting an order for possession.
+The interim accommodation which an authority provides under section 188 of the 1996 Act is but transient accommodation, a stop gap pending the completion of inquiries and a decision on the scope of the authoritys duties towards a homeless person.
+As I have set out above, domestic law requires less formal procedures at the final stage of the recovery of possession in such circumstances than when the occupier has a more substantial and long term connection with the accommodation.
+It is only in very exceptional cases that the applicant will succeed in raising an arguable case of a lack of proportionality where an applicant has no right under domestic law to remain in possession of a property: Kay v Lambeth London Borough Council [2006] 2 AC 465, Lord Bingham para 29, Lord Nicholls paras 53 54; McCann v United Kingdom para 54; Kay v United Kingdom, para 73; Manchester City Council v Pinnock, Lord Neuberger MR para 54.
+In my view this is so particularly where an authority seeks to recover possession of interim accommodation provided under section 188 of the 1996 Act: if court proceedings are necessary, and the day of the court hearing arrives, what would be the homeless persons defence? 65. 66. 67.
+It is for the occupier to raise the question of proportionality: Pauli v Croatia [2009] ECHR 1614, para 43; Orli v Croatia [2011] ECHR 974, para 66.
+The court may deal with such an argument summarily unless it is seriously arguable: Manchester City Council v Pinnock, Lord Neuberger MR para 61; Hounslow London Borough Council v Powell [2011] 2 AC 186, Lord Hope paras 35 37, Lord Phillips para 92.
+In an appropriate case the court, if satisfied that eviction was disproportionate, could prohibit the eviction for as long as that was the case, for example if the local authority did not provide alternative accommodation: Manchester City Council v Pinnock, Lord Neuberger MR paras 45 and 64.; Hounslow London Borough Council v Powell, Lord Hope paras 62 and 63.
+I turn to the application of an article 8 analysis to the facts of these cases.
+First, in each case the termination by the authority of the occupiers licence and the private owners actions to recover possession of the property are both in accordance with the law see the discussion of the first issue above and in pursuit of a legitimate aim.
+The local authority, faced with the pressing social problem of homelessness and charged with duties to provide accommodation for the homeless with priority need, will wish to make the accommodation available to other applicants who are entitled to benefit from the provision of interim accommodation under the 1996 Act.
+The private owner of the property seeks to recover possession of it in accordance with his or its right of ownership and to put the property to economic use by obtaining income from the local authority for its occupation.
+These are legitimate aims which fall within the protection of the rights and freedoms of others: Hounslow London Borough Council v Powell, Lord Phillips para 80. 68.
+Secondly, in my view recovery of possession is proportionate to the aim which is being pursued and is therefore necessary in a democratic society under article 8.
+It is well known that authorities have limited resources to provide accommodation to individuals who claim to be homeless and in priority need.
+As a general rule there can be no justification for preferring those whose claims have been investigated and rejected over those whose claims are still the subject of inquiry under section 184 of the 1996 Act and who may be found to be homeless, to have priority need, and to be the objects of the authoritys full housing duty.
+There are also safeguards in the decision making process that allow the occupant to be involved in the process and, through an appeal to the county court or by judicial review in the Administrative Court, give an opportunity for him or her to raise the question of proportionality before an independent tribunal.
+There is no need for an additional procedural hurdle which would impose costs on an authority without any significant benefit to the applicant. 69.
+Those safeguards include the following.
+First, the authority must give the applicant written notice of the reasons for an adverse section 184 decision, thus enabling the applicant to understand the basis of the decision: section 184(3) and (6).
+In so doing the authority must inform the applicant of his or her right to request a review of the decision under section 202: section 184(5).
+Secondly, the Governments Homelessness Code (2006) (at para 7.1.10) requires the authority to give the applicant/occupier a reasonable period of notice to vacate the accommodation.
+The general practice of authorities is to give 28 days notice.
+Thirdly, where the individual has become homeless intentionally, the authority is under a duty to give the applicant advice and assistance in his or her attempts to obtain alternative accommodation: section 190(2) and (3).
+If the applicant, who has become homeless intentionally, has a priority need the authority is under a duty to secure that accommodation is available to give him a reasonable opportunity of securing alternative accommodation. 70.
+Fourthly, the applicant is entitled to have the adverse decision reviewed: sections 202 and 203.
+The purpose of the review is, as Lord Hope stated in Hounslow London Borough Council v Powell (at para 42) to correct errors and misunderstandings.
+The authority is under a duty to inform the applicant of the reasons for the decision on review and inform him of his right to appeal: section 203(4) and (5).
+Fifthly, that right is a right to appeal the decision on review to the county court on a point of law: section 204. 71.
+Sixthly, the decisions of this court in 2011, in Manchester City Council v Pinnock and Hounslow London Borough Council v Powell, extended the powers of the county court when hearing applications by a local authority to recover possession of a property in order to comply with article 8 of ECHR.
+It appears to me that it is necessary for the same reason to interpret section 204 of the 1996 Act as empowering that court to assess the issue of proportionality of a proposed eviction following an adverse section 184 or 202 decision (if the issue is raised) and resolve any relevant dispute of fact in a section 204 appeal.
+As there is no other domestic provision involving the court in the repossession of the accommodation after an adverse decision, the section 204 appeal, which reviews the authoritys decision on eligibility for assistance, is the obvious place for the occupier of the temporary accommodation to raise the issue of the proportionality of the withdrawal of the accommodation.
+Alternatively, as Moses LJ stated in this case ([2013] EWCA Civ 804) at para 89, the occupier of the temporary accommodation may raise the issue of proportionality of such an eviction by way of judicial review in the Administrative Court, which similarly could resolve relevant factual disputes.
+An occupier might have to resort to judicial review if an authority were not willing to continue the provision of interim accommodation pending a review. 72.
+Finally, where a child forms part of the homeless family, the authority is under a duty in section 213A of the 1996 Act to seek the consent of the applicant to refer the facts of the case to the social services authority or department.
+That authority or department will carry out an assessment of the childrens needs as part of its general duty under section 17 of the Children Act 1989 to promote the welfare of children in need.
+Lewisham made such an assessment of CN, which it completed on 27 April 2012.
+The assessment concluded that if his family did not find private accommodation, the authority would seek to provide him with accommodation as a child in need.
+Newham completed an assessment of ZH under the Children Act 1989 on 1 May 2013.
+As a result the authority gave appropriate interim accommodation and financial support to assist FI in securing private rented accommodation, until, in the course of an appeal to the county court against its section 202 decision, Newham accepted that it owed FI a full housing duty.
+It is correct that the current arrangements involve eviction at the hands of the landlord or his agent, if the occupant does not vacate voluntarily in response to notice, while an enforcement officer would, if necessary, carry out an eviction after a court made an order for possession.
+But that does not in my opinion alter the balance between the interests of the individual and those of the community so as to render the eviction disproportionate. 73. 74.
+Having regard to the proceedings as a whole, there are several opportunities for the applicant to involve himself or herself in the decision making process and also procedures by which an independent tribunal can assess the proportionality of the decision to re possess the accommodation and determine relevant factual disputes.
+In my view there are sufficient procedural safeguards to satisfy the applicants article 8 rights.
+The article 8 challenge therefore fails.
+Conclusion 75.
+I would dismiss both appeals.
+LORD CARNWATH 76.
+I agree that the appeals should be dismissed for the reasons given by Lord Hodge.
+I add some comments on an argument which has been advanced in various forms on behalf of both the local authorities and the Secretary of State: that particular weight should be given to the Court of Appeals interpretation of the relevant statutory words, in effect because it has stood the test of time. 77.
+This, it is said, is reflected in the facts that the reasoning in Mohammed v Manek has stood without challenge for 20 years and was confirmed by the same court eight years ago in Desnousse v Newham LBC; that since at least 2006 it has been adopted without criticism or comment in the Departments statutory code of guidance; that it has been applied on numerous occasions by local authorities and the lower courts without apparent problems or injustice; and that Parliament has not legislated to reverse its effect despite many opportunities to do so.
+As Kitchin LJ observed in the Court of Appeal, when refusing permission to appeal in this case: Those opportunities include the Homelessness Act 2002, the Housing and Regeneration Act 2008 and the Localism Act 2011, each of which amended Part VII of the 1996 Act; and the Immigration and Asylum Act 1999, the Nationality, Immigration and Asylum Acts of 2002 and the Immigration, Nationality and Asylum Act 2006, each of which amended the 1977 Act. (para 83) 78.
+Mr Chamberlain for the Secretary of State goes further, drawing to our attention the committee debates on what became the Housing and Regeneration Act 2008 (HC Deb (2007 08), 24 January 2008 (afternoon), cc 512 516), in which the responsible minister apparently relied on the reasoning of the Court of Appeal in those cases when resisting a proposed amendment to extend the protection available to those in temporary accommodation under this legislation. 79.
+Appealing as such arguments may be as a matter of common sense, they need to be based on sound legal principle, if they are to be accepted as a ground of decision on an issue of statutory interpretation.
+Subject to narrowly defined exceptions (such as under Pepper v Hart [1993] AC 593), it is a cardinal constitutional principle that the will of Parliament is expressed in the language used by it in its enactments (Wilson v First County Trust Ltd (No 2) [2003] UKHL40; [2004] 1 AC 816 at [67] per Lord Nicholls).
+The courts primary task therefore is to ascertain the intention of Parliament from the language it has used.
+If that does not conform to the way it has been applied in practice, the conventional remedy, pending legislative amendment, is to correct the practice, not rewrite the law. 80.
+Notwithstanding that general principle, support for the use of subsequent practice as an aid to interpretation may be found in the textbooks and the authorities there cited.
+Mr Chamberlain groups them under two headings: tacit legislation and customary meaning.
+Tacit legislation 81.
+Under this heading, Mr Chamberlain relies on a passage in Bennion on Statutory Interpretation (6th ed.), p.661: Parliament is normally presumed to legislate in the knowledge of, and having regard to, relevant judicial decisions.
+If therefore Parliament has a subsequent opportunity to alter the effect of a decision on the legal meaning of an enactment, but refrains from doing so, the implication may be that Parliament approves of that decision and adopts it.
+This is an aspect of what may be called tacit legislation. 83. 82.
+With respect to that distinguished author, I have difficulty with the phrase tacit legislation, if it is intended to connote some form of silent endorsement by Parliament implied from its failure to act.
+As Lord Nicholls made clear, Parliament legislates by what it says, or what is said under its authority, not by what it does not say.
+Anything else can only be justified, if at all, as judge made law, and the criticisms implicit in that expression must be faced.
+It is true that this passage in Bennion was cited with approval by the Divisional Court in R (Woolas) v The Parliamentary Election Court [2010] EWHC 3169 (Admin), para 86, per Thomas LJ.
+But the context was quite different from the present.
+Following judicial interpretation of a particular statutory provision, which Parliament had re enacted in substantially the same form, the court held that the previous interpretation continued to apply.
+The principal authority relied on, Barras v Aberdeen Sea Trawling Co Ltd [1933] AC 402, was to similar effect.
+The House of Lords held that the word wreck or loss of a ship as interpreted by the Court of Appeal under the Merchant Shipping Act 1894 must be treated as having the same sense when re enacted in a 1925 statute.
+The House approved (at p 412 per Viscount Buckmaster) the statement of the rule by James L.J. in Ex parte Campbell: L. R. 5 Ch. 703, 706: Where once certain words in an Act of Parliament have received a judicial construction in one of the Superior Courts, and the Legislature has repeated them without alteration in a subsequent statute, I conceive that the Legislature must be taken to have used them according to the meaning which a Court of competent jurisdiction has given to them. 84.
+The principle has been often applied (a very recent illustration of the principle and its limits can be found in Manchester Ship Canal Co Ltd v United Utilities Water plc [2014] UKSC 40).
+However, account also needs to be taken of the comments of members of the House of Lords in the cases referred to by Lord Neuberger.
+Whatever the true scope of the principle, I do not find the expression tacit legislation a very apt description.
+In such cases Parliament has not remained silent.
+Rather, the previous court decision (even at a level below the highest court) is relevant, because it is part of the background against which Parliament has spoken, and by reference to which accordingly its intention can properly be ascertained.
+In any event, we were referred to no authority which has applied that principle to a case where, as here, the most that can be said is that Parliament has failed to take what might have seemed an obvious opportunity to legislate.
+Absence of legislation may be governed by many factors which have nothing to do with the perceived merits of a possible change, not least Parliamentary time and other government priorities. 85. 86.
+Nor, with respect to Mr Chamberlains initial submissions (in fairness, not strongly pressed on this point), can the argument be bolstered by reference to Ministerial statements to Parliament in response to possible amendments which were not in the event carried.
+The special exception allowed by Pepper v Hart is directed at Ministerial statements in support of legislation, and even then the circumstances in which reference is permissible are closely defined.
+It provides no support for reference to such a statement in relation to proposed legislation which was not in the event adopted.
+In the same context Mr Hutchings (for the two local authorities) sought support in words of Lord Neuberger in Williams v Central Bank of Nigeria [2014] 2 WLR 355, concerning the meaning of the word trustee in the Limitation Act 1980.
+That I read as no more than an application of another familiar principle, that Parliament is taken to use legal words in their ordinary legal sense.
+As Lord Neuberger said, it would have been surprising if a statute concerned with consolidating the law governing the powers and duties of trustees did not adopt an orthodox definition of trust and trustee (para 69).
+It provides no assistance in the present case. 87. 88.
+Other common law countries have also attempted to grapple with this issue but there does not appear to be a settled or uniform approach.
+The presumption applied in Barras v Aberdeen Steam Trawling has been restated in Australian and Canadian case law on numerous occasions: see e.g. the unanimous High Court bench of seven justices in Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96; 123 ALR 193 and the Supreme Court of Canada in Studer v Cowper [1951] SCR 450.
+However, the common law position has been modified by statute in both countries: see e.g. section 18 of the Acts Interpretation Act 1915 (South Australia) and section 45(4) of the Interpretation Act (RSC 1985).
+These provisions expressly remove the presumption that Parliament is taken to have approved or adopted any judicial construction of an enactment when it is re enacted.
+However, courts may still draw appropriate inferences from the legislative history of a statutory provision even in the absence of any common law presumption.
+The US Supreme Court has sometimes inferred that inaction on the part of Congress can be taken as approving or acquiescing in a judicial construction of a provision, especially where the construction has been brought to the attention of the public and Congress: see e.g. United States v Rutherford 442 US 544 (1979) and Bob Jones Univ v United States 461 US 574 (1983).
+Customary meaning 89.
+In the alternative Mr Chamberlain relies on what he calls the customary meaning of the words of the statute.
+He refers to the judgment of Lord Phillips in this court, in Bloomsbury International Ltd v Department for Environment, Food and Rural Affairs [2011] 1 WLR 1546, para 57 60.
+The appeal concerned the meaning of the phrase landed in the United Kingdom in the context of a levy imposed on those engaged in the sea fish industry.
+Lord Phillips gave a judgment agreeing with the majority but he was on his own on this issue.
+He drew attention to the the unusual feature that for nearly thirty years everyone concerned had proceeded on the basis of a broad interpretation of the phrase, that the levy had been collected on that basis, and the funds so raised disbursed in payment for schemes intended to benefit the sea fish industry activities which if the decision of the Court of Appeal were correct, must be drastically curtailed.
+He thought that in such circumstances there must be, at the very least, a powerful presumption that the meaning that has customarily been given to the phrase in issue is the correct one. 90.
+He quoted from a judgment of my own (Isle of Anglesey County Council v Welsh Ministers [2009] EWCA Civ 94, [2010] QB 163 para 43): Where an Act has been interpreted in a particular way without dissent over a long period, those interested should be able to continue to order their affairs on that basis without the risk of being upset by a novel approach.
+He commented that this had the air of pragmatism rather than principle, but agreed that courts are understandably reluctant to disturb a settled construction and the practice that has been based on that construction (referring to Bennion on Statutory Interpretation, 5th ed (2008), section 288 at p 913 and the authorities there cited). 91.
+He thought that a more principled justification for the principle would be that of contemporaneous exposition, citing Clyde Navigation (Trustees of) v Laird & Sons (1883) 8 App Cas 658, where Lord Blackburn had regarded the levying and payment of statutory dues on a particular basis without protest for twenty five years as a strong indication that there must exist some legal ground for exacting the dues.
+He noted, however, that Lord Watson had not agreed with this approach (except possibly in relation to very old statutes).
+Lord Phillips commented: An important element in the construction of a provision in a statute is the context in which that provision was enacted.
+It is plain that those affected by the statute when it comes into force are better placed to appreciate that context than those subject to it thirty years later. (para 61) 92.
+I doubt if contemporary exposition, in the sense described by Lord Phillips, would have provided a satisfactory answer in the Anglesey case.
+The issue was not one of linguistic usage, but of application in practice whether fishery rights granted by an 1868 Act should be treated as purely personal, rather than capable of assignment as had been the general understanding (and the basis on which subordinate legislation had been drafted) over the intervening century and a half. 93.
+The sentence quoted by Lord Phillips from my judgment was part of a longer section (paras 39 44) discussing the question left unresolved by Lord Blackburn and Lord Watson, that is the relevance of subsequent history as an aid to statutory interpretation.
+I referred to authorities cited in that connection in Halsbury's Laws Vol 44(1) Statutes, paras 1427 1430, which disclosed no consistent or settled view.
+They ranged from the contrasting views expressed in 1883 in the Clyde Navigation case, to much more recent observations in R (Jackson) v Attorney General [2006] 1 AC 262, by Lord Nicholls (paras 68 9) and by Lord Carswell (para 171), which tended to support Lord Blackburns approach.
+I concluded: My own respectful view is that Lord Blackburn's more liberal view is supported by considerations of common sense and the principle of legal certainty.
+Where an Act has been interpreted in a particular way without dissent over a long period, those interested should be able to continue to order their affairs on that basis without risk of it being upset by a novel approach.
+That applies particularly in a relatively esoteric area of the law such as the present, in relation to which cases may rarely come before the courts, and the established practice is the only guide for operators and their advisers.(para 43) Legal certainty and settled practice 94.
+Review of these authorities shows how varied are the contexts in which a settled understanding or practice may become relevant to issues of statutory interpretation.
+Concepts such as tacit legislation or customary meaning provide no more than limited assistance.
+The settled understanding may emerge from a variety of sources, not necessarily dependent on action or inaction by Parliament, or particular linguistic usage.
+Nor can the debate, exemplified by the difference 130 years ago between Lord Watson and Lord Blackburn, be reduced to one between principle and pragmatism, as Lord Phillips suggested.
+Rather it is about two important but sometimes conflicting principles legal correctness and legal certainty.
+In drawing the balance between them, as in most areas of the law, pragmatism and indeed common sense have a legitimate part to play.
+In my view this case provides an opportunity for this court to confirm that settled practice may, in appropriate circumstances, be a legitimate aid to statutory interpretation.
+Where the statute is ambiguous, but it has been the subject of authoritative interpretation in the lower courts, and where businesses or activities, public or private, have reasonably been ordered on that basis for a significant period without serious problems or injustice, there should be a strong presumption against overturning that settled practice in the higher courts.
+This should not necessarily depend on the degree or frequency of Parliamentary interventions in the field.
+As in the Anglesey case, the infrequency of Parliamentary intervention in an esoteric area of the law may itself be an added reason for respecting the settled practice.
+On the other hand it may be relevant to consider whether the accepted interpretation is consistent with the grain of the legislation as it has evolved, and subsequent legislative action or inaction may be relevant to that assessment. 95. 96.
+This would not be new law, even at this level.
+The approach receives strong endorsement, in a context close to the present, from the House of Lords decision in Otter v Norman [1989] AC 129.
+In interpreting the phrase payments in respect of board in the Rent Acts, the House of Lords placed weight on the obiter observations of the Court of Appeal in a case decided more than 60 years before, in the absence of legislative intervention in the ensuing period on this particular point (in spite of the enactment of more precise statutory definitions on related aspects).
+Lord Bridge (giving the only substantive speech) said: There has been no reported English decision bearing upon the point after Wilkes vs Goodwin [1923] 2 KB 86.
+But Parliament chose not to interfere in relation to board, and it seems to have been assumed ever since that the majority view in Wilkes vs Goodwin, albeit expressed obiter, correctly stated the law, in the words of Bankes LJ, at p 93, that any amount of board which is more than de minimis will suffice to exclude a tenancy from statutory protection.
+Thus successive editions of Sir Robert Megarry's standard text book on the Rent Acts (Megarry, The Rent Acts) have stated that: In practice, the dividing line appears to fall between the early morning cup of tea on the one hand and 'bed and breakfast' on the other:" see 10th ed (1967), p 141.
+The same view has been adopted in Scotland: see Holiday Flat Co. vs Kuczera, 1978 SLT (Sh.Ct.) 47.
+My Lords, I think we must assume that for many years many landlords and tenants have regulated their relationships on this basis, and even if I thought that a different construction could reasonably be placed on section 7(1) of the Act of 1977 I would not think it right to adopt it now and to upset existing arrangements made on the basis of an understanding of the law which has prevailed for so long. (p 145 6) 97.
+This provides direct authority for the application of the settled practice principle in a situation closely analogous to the present.
+That case was concerned with the basis on which private landlords and tenants had regulated their relationships.
+I see no reason why the same principle should be less relevant to relations between housing authorities and those for whom they are responsible under the homeless persons legislation.
+Indeed, given the pressures facing authorities in this area, and the financial constraints under which they are acting, it is particularly important that the legal and policy context in which they act should be clear and settled.
+One of the purposes of the departmental code is to provide such guidance.
+Although the guidance may not compete in terms of legal scholarship with Sir Robert Megarrys great work on the Rent Acts, it has the underpinning of statute, and the authorities were bound to have regard to it.
+If that practice is now overturned, they have been responsible, albeit acting in good faith, for many unlawful evictions.
+It may be that this result would have to be accepted, if the statute properly construed permitted no other reasonable interpretation.
+But this is not such a case.
+With respect to Lord Neuberger I do not consider that the authority of Lord Bridges words is undermined by the absence of any reference to Barras or Farrell.
+As I have explained they were dealing with a different issue, which had nothing directly to do with the issue of settled practice as an aid to interpretation. 98.
+For these reasons, even if the issues were more finely balanced than indicated by Lord Hodges judgment, the settled practice principle would in my view be an additional reason for dismissing the appeal.
+LORD NEUBERGER: Introductory 99.
+The two issues raised by these appeals are identified by Lord Hodge in para 1 of his judgment, and I gratefully adopt his explanation of the factual and legal background as see out in paras 2 19 and 58 60 of his judgment. 100.
+While I agree with Lord Hodge on the second issue, the first issue gives rise to a difficult point, on which I have reached a different conclusion. 101.
+The first issue, in a nutshell, is whether accommodation occupied pursuant to a temporary licence granted to a homeless person by a local housing authority under section 188 of Part 7 of the Housing Act 1996 (the 1996 Act), while the authority investigates whether she is eligible for assistance and if so what if any duty is owed to her under Part 7, is occupied by that person as a dwelling under a licence within the meaning of section 3(2B) of the Protection from Eviction Act 1977 (PEA 1977), as amended by the Housing Act 1988. 102.
+I agree with what Lord Hodge says at para 23, namely that the effect of section 3(2B), when read together with section 3(1) of PEA 1977 and cases such as Wolfe v Hogan [1949] 2 KB 194, is that the issue can, at least normally, be reformulated as being whether, in the light of the terms of the licence and the circumstances in which it was granted, the purpose of the licence, objectively assessed, was to enable the licensee to occupy the accommodation in question as a dwelling ie was the accommodation licensed for occupation as a dwelling? 103.
+I include the qualification at least normally, because it is possible that, after the grant of the licence, something may have been said or done which justifies the conclusion that the parties agreed or must have intended a change in the purpose of the licence.
+However, the mere fact that the occupation continues longer than expected, for instance while the investigation or appeal process continues under Part 7 of the 1996 Act, would, on its own, be insufficient to change the objectively assessed intention of the parties.
+The relevance of court decisions in relation to the Rent Acts 104.
+The words occupied as a dwelling under a licence have to be interpreted in their context, as is illustrated by the point made in para 102 above.
+The statutory history may be a legitimate factor to take into account as part of the context, given that PEA 1977 consolidated section 16 of the Rent Act 1957 and Part III of the Rent Act 1965, at the same time as Parliament was consolidating the rest of the Rent Act legislation (with certain amendments) in the Rent Act 1977.
+Prior to that, almost all of the Rent Act legislation had previously been in the Rent Act 1968, which itself consolidated all the previous Rent Act legislation (with the exception of those provisions which were consolidated in PEA 1977). 105.
+However, there are many judicial warnings against the use of previous statutory provisions when interpreting the words in a consolidating statute.
+The law on the topic was authoritatively discussed in R v Environment Secretary Ex p Spath Holme Ltd [2000] UKHL 61, [2001] 2 AC 349.
+Lord Bingham said at p 388 that it is plain that courts should not routinely investigate the statutory predecessors of provisions in a consolidation statute, particularly where the issue concerns the construction of a single word or expression, although he added that it seems to me legitimate for the court even incumbent on it to consider the earlier, consolidated, provision in its social and factual context for such help as it may give, the assumption, of course, being (in the absence of amendment) that no change in the law was intended.
+Lord Nicholls, having referred to the legislative history as a potential external aid on the previous page, said at p 398 that the constitutional implications point to a need for courts to be slow to permit external aids to displace meanings which are otherwise clear and unambiguous and not productive of absurdity, Lord Hope said at pp 405 406 that there is no doubt that, as general rule, it is not permissible to construe a consolidating enactment by reference to the repealed statutes which that enactment has consolidated, but added that an exception may be made where words used in the consolidation Act are ambiguous or where the purpose of a statutory word or phrase can only be grasped by an examination of the social context in which it was first used.
+To the same effect at p 409, Lord Hutton said that the underlying principle which emerges from the cases is that in construing a consolidation Act a court should not have regard to earlier enactments unless the language of the Act is unclear or ambiguous or there is something in the context of the Act or the relevant section which causes the court to consider that it should look for guidance to an earlier enactment or enactments. 106.
+Accordingly, any reliance in the present appeals on decisions as to the meaning of words such as dwelling and residence in the Rent Act legislation, which stretches back to 1915, may be hard to justify.
+Nonetheless, the statutory history is at least be worth examining because of the division of opinion in this court as to the meaning of the words, the fact that dwelling and even residence are words not greatly in current use, and also because so much judge made law has been added to, even incorporated in the Rent Act legislation.
+Quite apart from this, we were referred to many cases concerned with the meaning of dwelling and residing in the Rent Act context, and so it may be helpful to start by considering those cases and the statutory history of PEA 1977.
+The Rent Act context 107.
+Since 1968 (reflecting a combination of previous statutory and judge made law), the Rent Acts have provided that (i) a tenancy was protected provided that, inter alia, it was a tenancy of a dwelling house, which could be a house or part of a house, which was let to the tenant as a separate dwelling (section 1 of the Rent Act 1968, now section 1 of the Rent Act 1977), (ii) after such a tenancy expired, the tenant had a statutory tenancy, ie a right to retain possession, so long as he occupie[d] the dwelling house as his residence (section 3(1)(a) of the Rent Act 1968, now section 2(1)(a) of the Rent Act 1977), and (iii) oversimplifying things a little, after a statutory tenant died, a relation who had been residing with him could succeed to the tenancy (Schedule 1 to the 1968 Act, now Schedule 1 to the Rent Act 1977). 108.
+The expressions dwelling house and let as a separate dwelling were included in the Rent Act legislation from the start, namely in section 2(2)(a) of the Increase of Rent and Mortgage Interest (War Restrictions) Act 1915.
+However, the requirement that a tenant must occupy the dwelling house as a residence if he was to enjoy a statutory tenancy was developed by the courts, perhaps most significantly in Haskins v Lewis [1931] 2 KB 1 and Skinner v Geary [1931] 2 KB 546.
+The courts developed the rule that a tenant who was absent from the dwelling house had to establish animus revertendi and corpus possessionis, inward and outward manifestations of residential occupation, before he could be held to be occup[ying] the dwelling house as his residence see eg Brown v Brash [1948] 2 KB 247.
+Similarly, it was decided that a tenant who had another principal home could occupy a dwelling house as a residence, provided it was a genuine home, and not merely a resort of convenience see Beck v Scholz [1953] 1 QB 570. 109.
+Residence only became a statutory requirement of a statutory tenancy in section 3 of the Rent Act 1968, subsection (2) of which, somewhat unusually, provided that the expression occupies as his residence was to be construed as it had been by the courts since 1920 (now re enacted in section 2(3) of the Rent Act 1977).
+The distinction between a dwelling house let as a dwelling and occupie[d] as a residence was thus that a tenancy of a dwelling house let as a separate dwelling remained protected by the Rent Acts until it determined, whereas the question of the tenants residence only arose after the contractual tenancy came to an end.
+As for the residing with requirement for succession to a statutory tenancy, it was introduced early on see section 12(1)(g) of the Increase of Rent and Mortgage Interest (Restrictions) Act 1920. 110.
+Turning to the cases on the Rent Acts to which we were referred, I do not consider that cases on the residence requirement for statutory tenants, such as Skinner, Walker v Ogilvy (1974) 29 P&CR 288 and Regalian Securities v Scheuer (1982) 5 HLR 48, are helpful in the present context.
+The primary issue on these appeals is whether premises are let as a dwelling (or licensed for occupation as a dwelling) in circumstances where the occupier has no other home.
+Those cases were concerned with a different issue, namely whether the tenant was occupying the relevant premises as a residence, which is a different expression, with a different statutory history and a different statutory purpose.
+But at least as importantly, in each of those cases the tenant had another residence, which was his principal home. 111.
+The words dwelling and dwelling house in the Rent Acts are used in a phrase dealing with the objective purpose of the letting of the premises in question, whereas the word residence considered in those cases was used in a phrase dealing with the subsequent use of, and attitude of the occupier to, those premises.
+Further, in all the cases mentioned in para 110, the tenant had another home, and the court was considering whether the tenants intermittent use of, or long absence from, the premises concerned, defeated his contention that he occupie[d] the dwelling house as his residence, given that he undoubtedly had another home, which even on his case was his principal home.
+These appeals are concerned with individuals for whom the premises in question would be their only home as they would otherwise be homeless, and therefore the quality or intensity of their use of the premises is not in issue.
+What is in issue on these appeals is the effect of the precarious, provisional, and short term nature of their occupation of what is their only accommodation, which was not a feature of the two homes cases on residence. 112.
+Even more unhelpful in my view are cases such as Collier v Stoneman [1957] 1 WLR 1108, Swanbrae v Elliott (1986) 19 HLR 86 and Freeman v Islington LBC [2010] HLR 6, which were concerned with the question whether a person was residing with a statutory or assured tenant who has died, and therefore had a right to succeed to a statutorily protected tenancy.
+Not only do many of the problems described in the immediately preceding two paragraphs apply, but, additionally, there are the consequences of the important word with which has to be taken into account, and which of course plays no part in the instant case. 113.
+Previous decisions concerned with the question whether premises were a dwelling house which was let as a dwelling under the Rent Acts are potentially more in point.
+The history of the courts approach to the expressions was discussed illuminatingly by Wilson LJ in Pirabakaran v Patel [2006] EWCA Civ 685, [2006] 1 WLR 3112.
+As he explained in para 22, dwelling house has been given a broad meaning ever since Epsom Grandstand Association Ltd v Clarke [1919] WN 171.
+However, as in Wilson LJs discussion in Pirabakaran at paras 24 29, almost all of the cases to which we were referred which addressed the question of whether premises were let as a [separate] dwelling were concerned with premises let for commercial purposes, but with some residential use.
+In my view, those cases are of no real assistance in the present case as the issue was very different.
+Although each case involved someone (normally the tenant) sleeping in the premises concerned, the landlords argument in almost all the cases was that the premises had been let for a very different purpose. 114.
+Thus, cases such as Wolfe or MacMillan & Co Ltd v Rees [1946] 1 All ER 675 involved premises which had been let primarily for commercial use, and the issue was whether the indulgence of the landlord permitting the tenant to sleep on the premises brought the letting within the Rent Acts.
+The facts did not require the court to consider the quality of the contemplated habitation (to use a neutral word) required for the premises to be let as a dwelling.
+Having said that, it is perhaps worth noting that Evershed J made the point in MacMillan at 677H that to sleep on particular premises at night, or to have one's meals upon them by day, or both, ought not ipso facto to have the effect in law of making those premises a dwelling house .
+In Martin Estates Co Ltd v Watt [1925] NI 79, officers who slept in police barracks were held not to be protected by the Rent Acts.
+However, that was because the barracks had been let for the public service, and the court held that the surrounding circumstances and nature of the demised premises made it clear that the purpose of the letting was not as a dwelling.
+As was explained in the judgment, premises let for use as a prison, or as a hospital, would not be held to be let as a dwelling simply because prison officers, or doctors and nurses, slept and ate on the premises, even if that was contemplated at the time of the letting.
+Again, that is very different issue from that raised in these appeals, because it is ultimately concerned with living accommodation, which was very much ancillary to the purpose of the letting. 115.
+The issue in such cases was explained by Romer LJ in Whiteley v Wilson [1953] 1 QB 77, 85, in these terms: [T]he question in such cases, where the subject matter of the tenancy is one building used partly as a dwelling house and partly as a shop, and no purpose is specified in the tenancy agreement, is whether the building should in a broad sense be regarded as a dwelling house which is partly, or even substantially used for a shop, or on the other hand as a shop which is used in part for residential purposes.
+It is not without significance that Romer LJ seems to have regarded residential purposes as being effectively synonymous with dwelling house let as a dwelling.
+In the same case, Sir Raymond Evershed MR similarly treated the letting of a dwelling house as a dwelling as equivalent to the premises concerned being used for residential purposes at p 83.
+Uratemp Ventures v Collins [2001] UKHL 43, [2002] 1 AC 301 116.
+Although the issue in the House of Lords case of Uratemp Ventures v Collins [2001] UKHL 43, [2002] 1 AC 301 concerned the question whether certain premises were a dwelling house let as a dwelling, the issue was, again, very different from that in these appeals.
+It was whether a room was precluded from being within the Housing Act 1988 (section 1(1) of which uses the expression dwelling house let as a separate dwelling, obviously taken from the Rent Acts), because the tenant was forbidden to cook in it.
+The decision of the House of Lords removed some long standing and artificial distinctions which many people assumed had been built up by the courts over the years (in particular, the quaint notion that a tenancy of a room without washing facilities could be a letting of the room as a separate dwelling, whereas a tenancy of a room without cooking facilities could not). 117.
+Further, I must confess to a little confusion as to the precise nature of the ratio of the case other than the simple point that the prohibition on cooking did not prevent such a room being a dwelling house let as a separate dwelling.
+Thus, Lord Irvine LC seems to have addressed the question by reference to the composite expression see para 2.
+However, Lord Bingham, with whom Lord Irvine and Lord Steyn agreed, approached the issue on the basis that it was whether the room was a dwelling house see paras 9, 10 and 13.
+So did Lord Steyn (with whom Lord Irvine and Lord Bingham agreed), who apparently thought it plain that the room had been let as a separate dwelling see paras 13 15, especially the third sentence of para 13.
+Lord Millett, with whom Lord Irvine, Lord Steyn and Lord Hobhouse agreed, considered the issue by reference to the expression let as a separate dwelling see paras 30 and 40ff.
+Although this can be said to represent a divergence of approach, it is fair to say that all their Lordships were concerned with the meaning of dwelling, whether as part of the composite noun dwelling house, or in the expression let as a separate dwelling or both. 118.
+However, some general guidance was given in Uratemp.
+Lord Steyn said at para 15 that dwelling house is a word of wide import used interchangeably with lodging, and conveys the idea of a place where somebody lives.
+He continued: The setting in which the word appears in the statute is important.
+It is used in legislation which is intended to afford a measure of protection to tenants under assured tenancies.
+This context makes it inappropriate for the court to place restrictive glosses on the word dwelling.
+On the contrary, the courts ought to interpret and apply the word dwelling house in [the Housing Act 1988] in a reasonably generous fashion.
+This observation is supported by Lord Irvines deprecation in para 2 of a restrictive interpretation given that the statutory purpose was to give some protection to tenants in modest rented accommodation.
+It is also supported by Lord Bingham in para 10, where he said that a dwelling house describes a place where someone dwells, lives or resides, and stated that the legislation should be interpreted bearing in mind that it was directed to giving a measure of security to those who make their homes in rented accommodation at the lower end of the housing market. 119.
+Lord Millett took a slightly different approach, saying at para 30 that: The words dwell and dwelling are ordinary English words, even if they are perhaps no longer in common use.
+They mean the same as inhabit and habitation or more precisely abide and abode, and refer to the place where one lives and makes one's home.
+They suggest a greater degree of settled occupation than reside and residence, connoting the place where the occupier habitually sleeps and usually eats, but the idea that he must also cook his meals there is found only in the law reports.
+And in the following paragraph he added this: In both ordinary and residential accommodation is a dwelling if it is the occupier's home (or one of his homes).
+It is the place where he lives and to which he returns and which forms the centre of his existence.
+Just what use he makes of it when living there, however, depends on his mode of life. literary usage, 120.
+Unsurprisingly, on these appeals the respondent Housing Authorities and the Secretary of State relied on Lord Milletts suggestion that dwell and dwelling involve a greater degree of settled occupation than reside and residence.
+However, at least to me, the two types of word do not have this rather subtle distinction: a temporary dwelling is as natural a concept as a temporary residence, and carries the same meaning.
+Further, I would have thought that, particularly in the context of the Rent Acts and associated legislation, such a subtle distinction between two words which are effectively synonyms is of questionable value in that it is likely to lead to over subtle distinctions.
+Indeed, as already mentioned in para 115 above, Evershed MR and Romer LJ seem to have thought that premises were a dwelling house let as a separate dwelling if the principal use was intended to be residential, using the latter word in its normal way.
+And in Beck at pp 575 576, Evershed MR plainly treated home, a rather more frequently used word, as a synonym for residence.
+And I note that what many people think of as the bible on the topic, Megarry on The Rent Acts, treats residence as synonymous with dwelling when discussing the meaning of dwelling in the phrase let as a separate dwelling see 11th edition (1988) pp 109 117. 121.
+In any event, as a matter of statutory interpretation, in the context of the Rent Acts it seems pretty plain to me that Lord Milletts suggested distinction is demonstrably wrong.
+As explained briefly in paras 107 111 above, the law relating to residence had been conceived and developed up by the courts between 1920 and 1968, so that, as a matter of policy, a degree of intensity of occupation of the premises (in the case of intermittent use), or physical and mental commitment to the premises (in the case of absence), was required on the part of the tenant before the court was prepared to hold a tenant resident in a dwelling house, and the law as thus developed was incorporated into the statutory scheme in 1968.
+No such requirements as to the quality of the tenants use of the dwelling house were developed in relation to the issue of whether premises were let as a dwelling; on that aspect, issues arose either because of the mixture of residential and commercial uses, or because the demised premises lacked an allegedly essential functionality. 122.
+Furthermore, given the structure of the opening few sections of the Rent Act 1968 (and the Rent Act 1977), as summarised in para 107 above, the draftsman must, in my view, have assumed that a tenant of a tenancy of a dwelling house let as a separate dwelling could lawfully occup[y] the dwelling house as his residence.
+That is because it seems unlikely that he would have envisaged that it would be impermissible for a tenant to occup[y] a dwelling house as his residence if it was a dwelling house let as a separate dwelling.
+This must logically mean that the draftsman considered that dwelling was at least as wide as residence. 123.
+That point is reinforced when one considers the two homes cases such as those referred to in paras 109 110 above, and more fully discussed by Lord Hodge in paras 36 38 of his judgment.
+In those cases, the occupier was held to have no statutory tenancy, because his use of the premises concerned was insufficient to enable him to establish that he occupie[d] the dwelling house as his residence.
+Yet there was no suggestion in any of those cases that the premises were not a dwelling house or had not been let as a separate dwelling.
+Indeed, in Walker at p 290, Orr LJ specifically referred to the premises in that case as the dwelling house that is the flat.
+Conclusion on the Rent Act cases 124.
+In my view, therefore, even in the absence of the concerns expressed in Spath Holme as to the appropriateness of relying on the meaning of words or expressions in predecessor legislation, only limited assistance can be safely gathered from the history of the Rent Act legislation or the decided cases on the meaning of those statutes, as to the meaning in 3 of PEA 1977 of the expression let as a dwelling or licensed for occupation as a dwelling. 125.
+However, para 15 of Lord Steyns opinion in Uratemp is valuable to the extent that it emphasises that (i) dwelling is an ordinary English word, (ii) it is of wide import, and (iii) in the Rent Act type of context, it is to be interpreted generously.
+Lord Milletts suggestion in the same case that dwelling implies a more permanent meaning than residence may be said to be inconsistent with the latter two observations, but, for the reasons I have given, it seems to me to be wrong as a matter of ordinary language as well as in the context of the Rent Acts.
+The Protection from Eviction Act 1977 126.
+The effect of section 3(1), (2A) and (2B) of PEA 1977 is to render it an offence for the owner of premises, which are let as a dwelling, or occupied as a dwelling under a licence, albeit subject to exclusions identified in section 3A, to take possession of the premises otherwise than by proceedings in court, where the occupier continues to reside in the premises, provided, according to subsection (2), that that occupation is lawful. 127.
+As mentioned in para 120 above in relation to the wording of the Rent Acts, the wording of section 3(1) of PEA 1977 indicates that the concept of dwelling is at least as wide as residing, as the draftsman appears to have proceeded on the basis that it would be lawful to reside in any premises let as a dwelling.
+Indeed, I consider that the structure of section 3(1) of PEA 1977 makes the point even more clearly than sections 1 and 3 of the Rent Act 1968 (or sections 1 and 2 of the Rent Act 1977).
+The words continues to reside in section 1(1)(a) of PEA 1977 seem to me plainly to assume that the premises let as a dwelling house will have been resided in at the inception of the tenancy, and therefore ex hypothesis, that they can lawfully be resided in.
+Furthermore, PEA 1977 has no equivalent to section 3(2) of the Rent Act 1968 (see para [11] above), so reside must be assumed to have its ordinary meaning, and is not encrusted with the case law to which section 3(2) of the 1968 Act makes reference.
+Thus, any premises let as a dwelling for the purpose of section 1(1) can be resided in for the purpose of section 1(1), ergo a dwelling has at least as wide a meaning as residence.
+This is not called into question by section 3(2) of PEA 1977, which appears to me to be included simply to exclude unlawful occupiers from the protection of PEA 1977. 128.
+This conclusion is also supported by section 5 of PEA 1977, which requires a notice to quit premises let as a dwelling (or a notice to determine a licence to occupy premises as a dwelling) to give at least four weeks notice, but which makes no reference as to how the premises are occupied whether as a residence or otherwise.
+It would be curious if any premises, other than those subject to an excluded tenancy or excluded licence, which were lawfully occupied as a residence, were not subject to that provision, which again suggests that the meaning of dwelling is at least as broad as residence.
+Other cases on statutory provisions referring to residence and dwelling 129.
+As Lord Hodge rightly implies in para 51 in relation to the appellants argument based on the inclusion of the word dwelling in section 130 of the Social Security Contributions and Benefits Act 1992, one has to be careful before taking into account statutes in different fields even where they use the same words.
+However, although they are of limited value, I consider that observations made in two House of Lords cases, Railway Assessment Authority v Great Western Railway Co [1948] AC 234 and Mohamed v Hammersmith and Fulham LBC [2001] UKHL 57, [2002] AC 547, about the normal meaning of the words residing and dwelling are of some relevance to the present case.
+As to Railway Assessment, the fact that dwelling and dwelling house are somewhat archaic expressions suggests that real help may be obtained from a highly authoritative source considering their meaning at a time when they were in more current usage.
+And the fact that Mohamed v Hammersmith is a House of Lords case concerned with accommodation provided under section 188 of the 1996 Act means that it is at least worth considering in another case involving the same provision. 130.
+Railway Assessment concerned the expression occupied as a dwelling house in the context of a rating statute.
+The property in question was a hostel in Didcot, which had a canteen and many furnished cubicles, in which railway company employees were permitted to live there while they were temporarily working away from their home stations see at pp 236 237.
+Although it is a rather different context from the present, Lord Thankerton (who gave the only reasoned opinion) made it clear at p 238, that he thought that the words occupied as a dwelling house must be given their ordinary meaning.
+He went on to explain that the accommodation in that case had been provided for staff while they were working far from home, because there was insufficient lodging house accommodation at Didcot.
+He then said that [w]hile they are at their work, these members of the staff may properly be said to dwell or reside in the hostel, or to inhabit the hostel.
+On three subsequent occasions at pp 238 239, he again used the expression dwell or reside or residence or dwelling, treating the concepts of residing and dwelling as meaning much the same thing.
+At p 240, Lord Thankerton rejected the view that the occupation by the employees was not as a dwelling because it was too transient and their families lived elsewhere, saying that the fact that the occupants of the cubicles do reside in the hostel through all the periods of their duty, and do not leave the hostel until their employment at Didcot terminates, provides a sufficient element of permanence.
+He added that he could not think that the presence of families and household goods is an essential element. 131.
+It appears to me that this decision provides a measure of support for a number of propositions.
+First, and perhaps least relevantly for present purposes, it shows the width of the term dwelling house, as used in normal parlance.
+Secondly, it confirms the notion that the normal concept of dwelling includes a relatively temporary residence even where the premises concerned consist of a room in an employees hostel and the occupier has a permanent home where his family remains.
+Thirdly, the reference to lodging house accommodation strikes the same note as Lord Steyns observation in Uratemp (see para 118 above).
+Fourthly, the discussion supports the notion that, as a matter of ordinary language, the concepts of dwelling and residing are very similar, and can often be used interchangeably (consistently with the way in which Evershed MR and Romer LJ expressed themselves in Whiteley). 132.
+In relation to the ordinary meaning of the word residence, I consider that the decision of the House of Lords in Mohamed v Hammersmith is of assistance.
+That case is also rather more in point on the facts than any of the other cases so far discussed, as the issue was whether a person was normally resident (for the purposes of section 199 of the 1996 Act) in accommodation provided under section 188 of the 1996 Act, the very section under which accommodation was provided to the appellants in the instant appeals. 133.
+Having said that words like normal residence may take their precise meanings from [their] context, Lord Slynn (who gave the only reasoned judgment) said this in para 18: [T]he prima facie meaning of normal residence is the place where at the relevant time the person in fact resides.
+So long as that place where he eats and sleeps is voluntarily accepted by him, the reason why he is there rather than somewhere else does not prevent that place from being his normal residence.
+He may not like it, he may prefer some other place, but that place is for the relevant time the place where he normally resides.
+If a person, having no other accommodation, takes his few belongings and moves into a barn for a period to work on a farm that is where during that period he is normally resident, however much he might prefer some more permanent or better accommodation.
+In a sense it is shelter but it is also where he resides.
+Where he is given interim accommodation by a local housing authority even more clearly is that the place where for the time being he is normally resident.
+The fact that it is provided subject to statutory duty does not, contrary to the appellant authority's argument, prevent it from being such. 134.
+As I read those observations, Lord Slynn was saying that a person provided with temporary accommodation under section 188 of the 1996 Act, as a matter of ordinary language normally resides in that accommodation, even though it is provided to her on a temporary basis by a housing authority, because she lives there and because she has no other home.
+To my mind, it follows that for the same sort of reasons, the person may, as a matter of normal language be said to be dwelling in such accommodation, which would naturally be described as a dwelling house.
+Conclusions on the first issue 135.
+The purpose of section 3 of PEA 1977 is to prevent a person who has been lawfully living in premises, which have been let as a dwelling or licensed to be occupied as a dwelling, being evicted without a court order, and the purpose of section 5 is to ensure that, where premises have been let as a dwelling, or licensed to be occupied as a dwelling, on terms which require notice to vacate, the occupier must be given at least 28 days notice.
+Plainly, it seems to me, these sections should not be accorded an unnaturally narrow effect; indeed, I think one should lean in favour of a wide, rather than a narrow, meaning when it comes to deciding the ambit of these sections.
+They do not represent a substantial incursion into the property rights of the owners of premises, and they reflect a policy that people who have been lawfully living in premises should not be summarily evicted or locked out.
+Because of the nature of the rights accorded by these provisions and their aim of protecting people against the inconvenience and humiliation of being deprived of their homes summarily, one would expect the two sections to have a wide, rather than a narrow, meaning, a conclusion supported by the passages which I have referred to in the opinions in Uratemp in para 118 above. 136.
+I do not consider that it would be appropriate to exclude from the ambit of those sections accommodation, whether a house or flat or room, which has been lawfully occupied by a person (or families) as her (or their) only home, simply because her (or their) occupation is short term, provisional or precarious.
+It is a perfectly natural use of the word to describe a person as dwelling, or indeed residing, in accommodation provided by a housing authority under section 188 of the 1996 Act, or occupying those premises as a dwelling house, even though she may be there for a short term on a precarious basis.
+Of course, it would be wrong to say that, simply because she has no other dwelling, the accommodation must be that persons dwelling: a person does not need to have a dwelling.
+But, equally, as a matter of language, the fact that the person would be otherwise homeless makes it all the more difficult to contend that it is an inappropriate use of language to describe the accommodation provided to her under section 188 as a dwelling, even if it was on a temporary basis, pursuant to a statutory duty.
+To describe a house flat or room as the occupiers temporary or short term dwelling is a perfectly natural use of language. 137.
+Accordingly, the fact that the arrangement under which a person is permitted to occupy premises as her only habitation is short term and precarious does not seem to me to prevent them being let as a dwelling house or occupied as a dwelling, as a matter of ordinary language.
+So long as the arrangement persists, the premises are that persons lodging and the place where [she] lives, to quote Lord Steyn, or the place where [she] lives and to which [she] returns and which forms the centre of [her] existence to quote Lord Millett, in Uratemp.
+The mere fact that the landlord or licensor has the right to substitute other premises on short notice does not seem to me to alter that conclusion: unless and until that right is exercised, the premises are the occupiers lodging, where she lives and to which she returns.
+If that were not so, it would have provided a very simple method for private sector landlords to avoid the incidence of the Rent Acts.
+I draw some support for this conclusion from the observations of Lord Thankerton in Railway Assessment and of Lord Slynn in Mohamed v Hammersmith, in addition to the observations in Uratemp. 138.
+Of course, the nature of the premises subject to the letting may be such that it might not be natural to refer to them as a dwelling or dwelling house (as illustrated by the cases considered in paras 113 115 above).
+However, apart from such cases where the nature of the premises precludes them being described as being let or occupied as a dwelling, I find it hard to see why the relatively temporary nature of the occupation, or the fact that the occupier can be required to shift to other premises on a days notice, prevents premises being let or licensed as a dwelling or occupied as a dwelling, or indeed occupied as a residence, particularly where the tenant or licensee has no other home.
+Indeed, many might think that those who are housed under section 188 of the 1996 Act are the sort of people who particularly need the protection of PEA 1977, given that, whatever the merits of their claims under Part 7 of the 1996 Act, they are likely to come from the more vulnerable sectors of society. 139.
+In my opinion, the view that people housed under section 188 of the 1996 Act are entitled to the benefit of sections 3 and 5 of PEA 1977 receives considerable support from section 3A of PEA 1977, which identifies the arrangements which are excluded from the ambit of section 3.
+The exclusions in subsections (6)(8) appear to me to be particularly significant for present purposes.
+They include a tenancy or licence (i) if it was granted as a temporary expedient to a person who entered the premises as a trespasser, (ii) if it is for a holiday only, (iii) if it is gratuitous (iv) if it is granted in order to provide accommodation for asylum seekers and their families under Part VI of the Immigration and Asylum Act 1999, or (v) if it confers rights of occupation in a hostel, within the meaning of the Housing Act 1985, which is provided by [certain defined authorities].
+These are all types of licences which need not have been excluded from the ambit of PEA 1977 if it did not apply to short term, precarious and/or charitable arrangements, and so they strongly support my conclusion.
+I am unimpressed by the point that some of these licences or tenancies could last a long period.
+First, that point does not apply to categories (i) and (ii).
+Secondly, the fact that the arrangement in categories (iv) and (v), or indeed category (iii), may continue for some time in a few cases is not really the point, as one is normally concerned with the purpose of the arrangement in question when it started, and almost all such arrangements would be expected to be short term.
+Indeed, it may well be that interim accommodation provided under Part 7 of the 1996 Act will occasionally be occupied for a long time eg because the appeal process is protracted. 140.
+I was initially attracted by the argument developed in para 33 of Lord Hodges judgment, that, because a person who is temporarily housed by a housing authority under Part 7 of the 1996 Act, while inquiries are pending, should be treated as homeless for the purpose of that Act, he can and should be treated as not being provided with a dwelling, or indeed a residence under PEA 1977.
+However, on reflection, it appears to me that this does not involve a proper approach to statutory interpretation.
+As already mentioned, the fact that dwelling is given a certain meaning in the 1996 Act (whether in the statute or by the court) does not entitle that meaning to be simply applied to another Act, namely PEA 1977, and it appears to me to be a fortiori that the fact that someone is homeless for the purposes of one Act does not mean that she cannot have a dwelling or indeed a residence for the purpose of PEA 1977. 141.
+Further, as already mentioned, the House of Lords in Mohamed v Hammersmith accepted that, as a matter of ordinary language, the occupier of accommodation provided under section 188 of the 1996 Act would be normally resident in that accommodation, and therefore was normally resident for the purposes of section 199 of the 1996 Act.
+It seems to me that, if a person occupying accommodation provided under section 188 of the 1996 Act is normally resident in that accommodation for the purposes of another provision in the same Act, then, to put it at its lowest, it can scarcely be inconsistent with section 188 to say that she continues to reside in the accommodation for the purposes of another Act.
+And, if she resides for the purposes of section 3 of PEA 1977, as was envisaged when her tenancy or licence was granted, then, for the reasons already given, it would seem to follow that the premises must have been let as a dwelling or licensed for occupation as a dwelling.
+The effect of previous Court of Appeal decisions on the issue 142.
+The Court of Appeal in previous decisions on the interrelationship of Part 7 of the 1996 Act and PEA 1977 had come to a different conclusion see Mohammed v Manek and Kensington and Chelsea LBC (1995) 27 HLR 439 and Desnousse v Newham LBC [2006] QB 831.
+It is argued by the respondent Housing Authorities and the Secretary of State that we should not disturb the effect of those decisions, and therefore dismiss these appeals, even if we would not otherwise have done so, on the ground that Parliament has amended PEA 1977 and re enacted the earlier homelessness legislation in the 1996 Act, on terms which were consistent with those decisions.
+However, it is accepted that there is no specific statutory provision which demonstrates Parliamentary confirmation or assumption that those decisions were correct. 143.
+In my view, where, as here, Parliament has not specifically enacted any legislation which shows that it must have assumed or accepted that the law as stated by the Court of Appeal is correct, it is not safe in practice or appropriate in principle to draw the conclusion that the present legislation bindingly assumes sub silentio that the law is as the Court of Appeal had decided.
+Parliament must be taken to know not only that the Court of Appeal has decided as it has, but also that the House of Lords, or now the Supreme Court, could overrule the Court of Appeal.
+It would, in my view, be dangerous both in practice and principle, for the courts to start second guessing the legislature.
+Of course, where it is clear that, in subsequent legislation, Parliament has expressly, or even impliedly, accepted clearly the correctness of the Court of Appeal decision, or adopted the decision, different considerations are very likely to apply. 144.
+I note what Lord Carnwath says about the principle in Barras v Aberdeen Sea Trawling and Fishing Co Ltd [1933] AC 402 in paras 79 87.
+If Parliament has re enacted a statutory provision in identical words, after it has been interpreted as having a certain meaning by the courts of record, then there is, I accept, some attraction in the notion that the Parliamentary intention was that the provision should have that meaning particularly if (as here) the interpretation has been confirmed by the Court of Appeal more than once.
+The issue is similar to that discussed in paras 104 106 above, and I am far from convinced that the principle can be regarded as correct, at least in the absence of some additional factor in favour of maintaining the interpretation previously adopted, in light of observations in Farrell v Alexander [1977] AC 59.
+In that case, the unsuccessful respondent argued that a particular statutory provision (prohibiting the charging of premiums for the assignment of Rent Act tenancies) had been interpreted by the Court of Appeal in Remmington v Larkin [1921] 3 KB 404, and that, in the light of the Barras doctrine, the fact that the provision had been subsequently re enacted in much the same way more than once, the interpretation in Remmington had been effectively adopted by Parliament. 145.
+Lord Wilberforce thought that Remmington could be distinguished, but, after referring to Barras, he said at p 74, that he had never been attracted by the doctrine of Parliamentary endorsement of decided cases, which he described as based upon a theory of legislative formation which is possibly fictional.
+He added that if there are any cases in which this doctrine may be applied any case must be a clear one.
+Lord Dilhorne (who thought that Remmington could not be distinguished and should be overruled), while not referring expressly to Barras doctrine, said at p 81, that while it may be that the decision in Remington escaped the notice of the draftsman, our task is to give effect to the intention of Parliament which involved considering the words used by Parliament.
+Lord Simon of Glaisdale also thought that Remmington could not be distinguished and should be overruled, and at pp 90 91 he was critical of the Barras doctrine, saying at p 91: To pre empt a court of construction from performing independently its own constitutional duty of examining the validity of a previous interpretation, the intention of parliament to endorse the previous judicial decision would have to be expressed or clearly implied.
+Mere repetition of language which has been the subject of previous judicial interpretation is entirely neutral in this respector at most implies merely the truism that the language has been the subject of judicial interpretation for whatever (and it may be much or little) that is worth.
+Lord Edmund Davies thought that Remington had been rightly decided, but that the statutory language had since significantly altered, and he was accordingly concerned with a different doctrine, namely the assumption that in enacting consolidating legislation Parliament did not intend to change the law see at 94.
+Only Lord Russell (who dissented) appears at pp 101 103 to have assumed that the Barras doctrine was correct. 146.
+Since then, in A v Hoare [2008] UKHL 6, [2008] 1 AC 844, para 15, Lord Hoffmann followed an earlier decision of the House of Lords, Lowsley v Forbes [1999] 1 AC 329, which he explained in these terms: In that case, the Court of Appeal in 1948 (W T Lamb and Sons v Rider [1948] 2 KB 331) had given a provision of the Limitation Act 1939 an interpretation which the House thought was probably wrong.
+But Parliament had then enacted the Limitation Amendment Act 1980 in terms which made sense only on the basis that it was accepting the construction which had been given to the Act by the Court of Appeal.
+Lord Hoffmann also said that [t]he value of such previous interpretations as a guide to construction will vary with the circumstances. 147.
+In my opinion, in the light of the views expressed in Farrell and in A v Hoare, before this Court could invoke the Barras principle, it would almost always require something more than the mere re enactment of a previous statutory provision which has been interpreted by the Court of Appeal.
+Like Lord Simon, I am concerned about the constitutional propriety of this Court simply invoking what it regards as a judicial misreading of an earlier statute to justify a decision that a current statute means something other than this Court thinks it means.
+However, as it is not necessary to decide the point on these appeals, I would not wish to be taken to be saying that it could never be done. 148.
+I have even greater reservations about the so called customary meaning rule.
+As just mentioned, a court should not lightly decide that a statute has a meaning which is different from that which the court believes that it has.
+Indeed, so to decide could be said to be a breach of the fundamental duty of the court to give effect to the will of parliament as expressed in the statute.
+Legal certainty and settled practice, referred to by Lord Carnwath in paras 94 97 are, as I see it, an aspect of customary meaning.
+Although Lord Bridge expressed himself as he did in Otter v Norman [1989] AC 129, 145 6 (as quoted by Lord Carnwath in para 96), neither Barras nor Farrell was cited to him, and he relied on the fact that for many years, many landlords and tenants have regulated their relationships on [the] basis that observations in an earlier decision of the Court of Appeal were right.
+Even on that basis, I would wish to reserve my position as to the correctness of Lord Bridges obiter observations. 149.
+Turning to these appeals, there is no question of PEA 1977 having been re enacted since the decisions in Mohammed v Manek or Desnousse, and therefore the Barras principle cannot apply.
+Even if there is a customary meaning rule and twenty years is a long enough period to justify invoking it, I do not consider that it should apply here.
+One can see the force of the customary meaning rule where private individuals and companies have made dispositions or entered into agreements in the reasonable belief that the law was as laid down by the Court of Appeal as Lord Bridge said in Otter.
+However, it is much harder to justify invoking the rule in circumstances where a housing authority may have assumed that the law is as laid down by the Court of Appeal in connection with an arrangement which the authority was in any event required to enter into by statute.
+A housing authority can hardly claim to have complied with its duty to provide temporary accommodation under section 188 of the 1996 Act, only because it believed that the occupier of the accommodation could not invoke sections 3 or 5 of PEA 1977.
+I do not suggest that no housing authority could identify any action that it had (or had not) taken in the belief that PEA 1977 did not apply to licences such as those granted to the appellants in these cases, but I do not believe that any such action (or inaction) would be such as to justify invoking the customary meaning rule.
+Conclusion 150.
+For these reasons, despite the clear and impressive reasoning in his judgment, I have reached a different conclusion from Lord Hodge. 151.
+To many people this may appear an unattractive result, as it does not seem obviously sensible for homeless individuals, who are temporarily housed on an interim basis, while the housing authority makes enquiries as to what rights if any they may have, to be afforded protection under PEA 1977.
+Such a conclusion would inevitably increase the pressure on already hard pressed housing authorities, many of whom are faced with a demand for residential accommodation which substantially exceeds the supply, which places a great administrative burden on them.
+However, the consequences of my view as to the effect of PEA 1977 would, I suspect, be more of an exacerbating nuisance rather than a far reaching disaster.
+And, while I see the good sense of PEA 1977 not applying to licensees such as the appellants in these appeals, it does not seem to me obvious that they should not be able to benefit from PEA 1977. 152.
+Even if that is wrong, having interpreted PEA 1977, and noted Parliaments exercise of its power to identify which short term, precarious and charitable rights of occupation should be excluded from protection, I consider that the correct, if to some people a rather unpalatable, conclusion is that individuals such as the appellants in these appeals are entitled to the benefit of sections 3 and 5 of the Protection from Eviction Act 1977. 153.
+The contrary view is to some extent based upon policy considerations.
+I accept that, when considering the proper interpretation of a statute, a court can, and where appropriate should, take into account policy considerations, and I sympathise with the view that policy considerations favour dismissing these appeals, as I have indicated in para 151 above.
+However, judges have to be very careful before adopting an interpretation of a statute based on policy considerations, and should only to do so where those considerations point clearly in one direction.
+In this case, it seems to me to be particularly difficult to justify dismissing the appeal on policy grounds, given that (i) it involves departing from the natural meaning of the relevant statutory words, (ii) the policy argument is not overwhelming, (iii) there are policy considerations pointing the other way, and (iv) Parliament has apparently considered the policy in section 3A. 154.
+Furthermore, when it comes to relying on policy in a case of statutory interpretation, I would respectfully refer to the observations of Lord Simon and Lord Diplock in Maunsell v Olins [1975] AC 373, 393 which, although in a dissenting judgment (as might be appreciated from the way in which they are expressed), were cited with apparent approval (see at p 388) by Lord Bingham in Spath Holme at p 385: For a court of construction to constrain statutory language which has a primary natural meaning appropriate to its context so as to give it an artificial meaning which is appropriate only to remedy the mischief which is conceived to have occasioned the statutory provision is to proceed unsupported by principle, inconsonant with authority and oblivious of the actual practice of parliamentary draftsmen. 155.
+As to the second issue discussed by Lord Hodge in paras 61 71 of his judgment, it would not, on my view on the first issue, arise.
+However, on the basis of the view reached by the majority of the Court on the first issue, the second issue does arise.
+On that basis, I agree with Lord Hodges reasoning and conclusion on the second issue. 156.
+For my part, therefore, for the above reasons and for those much more economically expressed by Lady Hale, I would have allowed these appeals on the first issue, the appellants reliance on the Protection from Eviction Act 1977, but I would dismiss these appeals on the second issue, namely their reliance on article 8 of the European Convention on Human Rights.
+LADY HALE 157.
+The issue in this case is the meaning of the words licensed as a dwelling house in section 3(1) of the Protection from Eviction Act 1977, when read with section 3(2B) of that Act, which provided for the inclusion of licences in the protection given by that section (the relevant provisions are helpfully set out in the judgment of Lord Hodge at para 17).
+It is agreed that those words refer to the purpose for which the premises in question were licensed to the licensee and not to the purpose for which she actually occupied them (see the judgment of Lord Hodge at para 23).
+In these cases, however, it is difficult to see a distinction between the two: JN and FI and their children used these premises for the purpose for which they were licensed to occupy them.
+The question is what that purpose was. 158.
+There can be little doubt that the premises in each case constituted a dwelling house.
+As it happens, both were self contained premises, not shared with others when they were licensed.
+The courts have always taken a broad view of what constitutes a dwelling house.
+It has long been held that a room without bathroom facilities may be a dwelling house let as a separate dwelling for the purpose of section 1 of the Housing Act 1988 and its predecessors.
+In Uratemp Ventures v Collins [2001] UKHL 43, [2002] 1 AC 301, the House of Lords held that a room in an hotel where cooking was forbidden nevertheless constituted a dwelling house let as a separate dwelling for the same purpose.
+There is no requirement in section 3 of the 1977 Act that the premises be let or licensed as a separate dwelling. 159.
+When a dwelling house is let or licensed to an individual to occupy, albeit for what may turn out to be for a very short time, considerable work has to be done in order to conclude that the purpose of the letting or licence is not to use the premises as a dwelling.
+Counsel for the local authorities in question, and for the Secretary of State, have put in considerable work in order to persuade us that the words must be read in the light of the construction given to similar (but not identical) wording in other provisions in the Rent Acts.
+For the reasons given by Lord Neuberger, which I need not repeat, I do not find any of that work persuasive, let alone convincing.
+I share his view that dwelling is at least as wide as residing and thus must respectfully disagree with the view expressed by Lord Millett (but not by the other members of the appellate committee) in Uratemp that The words dwell and dwelling suggest a greater degree of settled occupation than reside and residing.
+That is, at it seems to me, to confuse two rather different meanings of the verb to dwell.
+I dwell on a subject when I fix my attention, write or speak on it length (as we sometimes have to do in our judgments).
+I dwell in a place when I live there.
+In my view, residing and dwelling and living somewhere generally mean the same thing, although all may be distinguished from staying. 160.
+Unlike holiday makers, it is hard to describe these families as simply staying in their accommodation.
+If, as the House of Lords held in Mohamed v Hammersmith and Fulham LBC [2001] UKHL 57, [2002] AC 547, a person can be normally resident in accommodation provided under section 188 of the 1996 Act, because he lives there for the time being and has nowhere else to go, I find it hard to see how he is not also provided with that accommodation as a dwelling.
+As Lord Neuberger demonstrates, a person can dwell, reside or live in premises where his occupation is not only temporary but precarious in the extreme.
+The purpose of the 1977 Act was not to provide security of tenure: that was done in other ways.
+The purpose was to prevent landlords resorting to such self help as is lawful to rid themselves of tenants (and now licensees) who would not leave voluntarily. 161.
+Nor, with respect, do I find persuasive any of the three matters relied upon by Lord Hodge in reaching a contrary conclusion.
+He points, first, to the statutory context of the licence, as a purely temporary measure while the local authority pursue their statutory inquiries.
+We are, of course, construing section 3 of the 1977 Act and not Part 7 of the 1996 Act.
+That statutory context cannot, of course, have been in the contemplation of the legislature when the provisions with which we are concerned were first enacted.
+The Protection from Eviction Act 1977 and the Housing (Homeless Persons) Act 1977 received the Royal Assent on the same day.
+But the Protection from Eviction Act was a pure consolidation Act, bringing together provisions which had first been enacted, in the case of the requirement of four weeks notice to quit in section 5 of the 1977 Act, in section 16 of the Rent Act 1957, and in the case of section 3 of the 1977 Act with which we are principally concerned, in Part III of the Rent Act 1965.
+At that time, such duty as there was to provide temporary accommodation for people in urgent need of it was contained in section 21(1)(b) of the National Assistance Act 1948.
+There was nothing to prevent a local authority separating homeless families by receiving the children into care and leaving the adults to fend for themselves.
+The Housing (Homeless Persons) Act 1977 was intended to bring in a new regime in which specific and carefully modulated duties were owed to particular classes of homeless persons. 162.
+People in temporary accommodation are still treated as homeless for the purpose of what is now Part 7 of the 1996 Act while the local authorities enquiries are persisting. (This is despite the fact that they have an express licence to occupy the accommodation with which they are provided, and so would fall outside the definition of homeless in section 175 of the Act unless that definition is directed to the time when they present themselves to the local authority.) That does not mean that they do not live in the accommodation provided for the time being or that they are not provided with that accommodation for that purpose. 163.
+Many (indeed one suspects the great majority) of those provided with temporary accommodation under Part 7 of the 1996 Act are in receipt of housing benefit.
+The whole system of funding local authorities duties under the 1996 Act would fall apart if housing benefit were not available to those who cannot afford to pay for the (often expensive) temporary accommodation arranged for them.
+Section 130 of the Social Security Contributions and Benefits Act 1992 provides that a person is entitled to housing benefit if he is liable to make payments in respect of a dwelling which he occupies as his home.
+If the temporary and transient nature of his occupation is not sufficient to prevent the dwelling being his home for this purpose, I find it very difficult indeed to see how that same temporary and transient nature is sufficient to prevent the licence under which he is permitted to occupy the dwelling also being for the purpose of his occupying it as his home, that is, dwelling or residing or living rather than merely staying there. 164.
+Secondly, Lord Hodge relies upon the terms of the licences in question.
+But these cannot take something which would otherwise fall within the statutory protection outside it.
+Calling a tenancy a licence does not make it a licence if in fact it is a tenancy: Street v Mountford [1985] AC 809.
+Reserving the right to change the accommodation provided at little or no notice does not prevent the accommodation being provided as a home if that is what it is.
+Otherwise, as Lord Neuberger points out, it would have been extremely easy for unscrupulous landlords to avoid the effect of the 1977 Act and its predecessor. 165.
+In this context, I am puzzled by what appears to be the generally accepted view that the protection of section 3 of the 1977 Act will apply once the local authority have accepted that they owe the family the full housing duty in section 193(2) of the 1996 Act.
+But the existence of that full housing duty is a quite separate matter from the terms on which the family occupy their accommodation.
+They may well remain in exactly the same accommodation on exactly the same contractual terms thereafter.
+There may well be no new letting or no new licensing for some time.
+Their occupation of those particular premises is just as precarious as before.
+The full housing duty will come to an end if they refuse an offer of suitable accommodation elsewhere.
+So can it be said that the purpose for which the premises were let or licensed has changed just because the nature of the local authoritys duty has changed? Even if that could be said, the contractual terms of the tenancy or licence cannot be determinative of its purpose. 166.
+Thirdly, Lord Hodge relies upon the unfortunate practical consequences if section 3 is held to apply to temporary accommodation provided under Part 7 of the 1996 Act.
+Counsel before us disagreed about how real the problems would in fact be; but we can, I think, take it for granted that it would indeed make life more difficult for hard pressed housing authorities who are having to cope with increasing numbers of homeless persons and diminishing resources with which to do so.
+However, as Lord Hodge himself acknowledges, this would not by itself be determinative.
+The answer to the practical problems is a properly tailored legislative exception, as has already been provided for some other situations in section 3A of the 1977 Act. 167.
+I fear that I am also unimpressed by the argument that we should not disturb what has been understood to be the law since the decision of the Court of Appeal in Mohammed v Manek and Kensington and Chelsea LBC (1995) 27 HLR 439, followed in Desnousse v Newham LBC [2006] QB 831.
+There is no question of Parliament having passed legislation on the basis that the law as stated by the Court of Appeal is correct.
+The 1977 Act has not been repealed and re enacted so as to invoke the principle in Barras v Aberdeen Sea Trawling Co Ltd [1933] AC 402.
+The most that can be said is that Parliament might have amended the 1977 Act so as to reverse or modify the Court of Appeals decision, if it did not like it, but has not done so.
+That comes nowhere near an expression of Parliamentary approval of it.
+Parliament can always legislate to change a decision of the higher courts should it wish to do so, but no conclusions can be drawn from the fact that it has not.
+There must be many, many decisions which the Parliament of the day finds surprising, inconvenient or downright wrong, but has done nothing to correct.
+The reasons for inaction may range from ignorance, indifference, lack of Parliamentary time or Whitehall resources, to actual approval.
+Moreover, Parliaments failure to act tells us nothing about what Parliament intended when the legislation was passed, which is what this court must decide.
+Parliament must, like everyone else, be taken to understand that a Court of Appeal decision may always be overturned on appeal to this court. (Of course, there are occasions when Parliament has specifically legislated on the basis that a Court of Appeal decision is correct, but the higher court has still been prepared to hold that it was incorrect: see Bakewell Management Ltd v Brandwood [2004] UKHL 14, [2004] 2 AC 519.) 168.
+I also share Lord Neubergers reservations about the so called customary meaning rule.
+In In re Spectrum Plus [2005] UKHL 41, [2005] 2 AC 680, the House of Lords was not deterred from over ruling a decision of a highly respected High Court judge as to the effect of the wording of a particular debenture in common use, despite the fact that his decision had stood and been relied upon by the banks for many years.
+The banks, like anyone else, must be taken to know that the decisions of the lower courts are liable to be over turned on appeal, even years after the event, if they are wrong.
+They cannot be regarded as definitely settling the law or have, as Lord Nicholls put it, lulled the banks into a false sense of security (para 43).
+In this case, there can be no question of the local authorities relying upon the Court of Appeals decisions.
+Their duties towards the homeless remain the same, whether or not the 1977 Act applies to the accommodation arrangements they make.
+They still have to go on fulfilling those duties.
+Unlike the banks in In re Spectrum Plus, there is nothing they can do about it, and they have not been lulled into a false sense of security. 169.
+In agreement with Lord Neuberger therefore, to whose judgment this is merely a footnote, I would therefore allow these appeals on the first issue.
+That being the case the second issue does not, in my view, arise.
+Mr Arden did not argue that a dwelling encompassed any residential accommodation provided for occupation, regardless how short was the intended period of occupation.
+He accepted that an overnight stay in a hotel or hostel would not amount to dwelling in that accommodation.
+Beyond that he submitted that it was a question of fact in each case.
+The respondent local authorities submitted, by reference to cases that I consider in paras 37 44 below, that premises must be occupied as a settled home and that lettings for a limited and temporary purpose involving transient occupation did not enjoy the protection of the Rent Acts in the past or of PEA 1977.
+They also pointed out that breach of section 3(1) of PEA was a criminal offence and submitted that there was a need for certainty as to its scope.
+I do not find either view wholly persuasive.
+The former makes insufficient allowance for a degree of settled occupation, the establishment of a home, as a component of dwelling.
+It also fails to recognise the extent to which the courts in several of the cases which I consider below have included as a component of their interpretation of the word dwelling their understanding of the relevant statutory policy; see in particular the cases in para 37 below.
+The latter view draws on case law which points to a statutory intention in the Rent Acts, and by extension in PEA 1977, to protect a persons home but not accommodation provided or occupied as a temporary expedient.
+There is force in the respondents interpretation (see para 45 below) but it risks setting up a generalised proposition that goes beyond that which the case law supports.
+In my view, in construing words that may have refined distinctions of meaning it is important to have regard to the statutory policy of PEA 1977.
+In applying the statutory words to a specific contract, the legal and factual context of the contract is particularly important.
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+These appeals are concerned with the procedure followed when a prisoner is kept in solitary confinement, otherwise described as segregation or removal from association.
+The principal question raised is whether decisions to keep the appellants in segregation for substantial periods were taken lawfully.
+Before the courts below, the arguments focused on the procedural requirements of article 6.1 of the European Convention on Human Rights (the ECHR).
+Before this court, the primary focus of the parties printed cases was upon the requirements of procedural fairness at common law.
+During the course of the hearing, however, a different issue came to the forefront, namely whether the segregation was authorised as required by the applicable legislation.
+For the reasons I shall explain, I have concluded that it was not.
+In the light of that conclusion, the question whether the requirements of procedural fairness were met does not affect the outcome of these appeals.
+Nevertheless, the nature of those requirements in this context is a question of general public importance, which has divided judicial opinion and was fully and carefully argued in these appeals.
+In the circumstances, it is appropriate that this court should deal with it.
+It may be helpful to begin, however, by summarising the relevant factual background, considering first the history of events, and then the conditions of segregation.
+The first appellant: the history of events
+In 2010 the first appellant, Kamel Bourgass, was a prisoner in HMP Whitemoor, which is a high security prison.
+He was serving a life sentence for the murder of a police officer, concurrent sentences for the attempted murder of two other officers and the wounding of a third, and a 17 year sentence for being part of a terrorist conspiracy to commit public nuisance by the use of poisons and/or explosives.
+On 10 March 2010 Bourgass was the victim of an assault by another prisoner named Sahebzadeh.
+Bourgass was then segregated under rule 45(1) of the Prison Rules 1999 (SI 1999/728) (the Rules), for reasons of good order and discipline.
+He was charged with an offence against discipline, it being alleged by a prison officer that he had been fighting with Sahebzadeh.
+He appeared before a governor the following day, when he denied the charge and was remanded.
+Bourgasss segregation was reviewed after 72 hours, on 13 March 2010, and thereafter at fortnightly intervals, on 23 March and 6 April 2010.
+The review was carried out by a Segregation Review Board (SRB).
+On each occasion, authority for continued segregation was given, purportedly in compliance with rule 45(2), by the senior prison officer who chaired the SRB (the officer on two of these occasions being Mr Colley, the challenging prisoners manager), on the ground that the investigation into the incident had not yet been completed.
+On 20 April 2010 Bourgass was found not guilty of the disciplinary charge.
+On 22 April 2010 he was removed from segregation.
+In a memorandum of the same date, he was notified by the head of security at the prison that intelligence suggested that he held extreme views, that he exerted a significant influence over other prisoners, and that we suspect you of being linked to threats to other prisoners.
+In a letter dated 14 May 2010, the prison informed Bourgasss solicitors that he had been kept in segregation during that period as he was influencing other prisoners in their activities.
+On 23 April 2010 Sahebzadeh was seriously assaulted.
+Bourgass was not present.
+He was however segregated under rule 45(1) on the orders of Mr Colley, the reason given being that it was for the maintenance of good order and discipline pending an investigation into a serious assault.
+Authority for continued segregation was given on 26 April 2010 by another officer, the same reason being given.
+The assault was referred to the police for investigation.
+On 29 April 2010 Bourgasss solicitor, Mr Guedalla, wrote to the governor pointing out that his client had not been present at the time of the assault, and requesting an outline of the evidence relied on to justify his segregation.
+In a letter dated 30 April 2010, the dynamic security governor, Mr Garvie, stated that although not in the area of this assault we believe your client, along with others was behind this assault and as such his presence on normal location poses a threat to the good order and discipline of the Establishment.
+On 4 May 2010 authority for Bourgasss continued segregation was given by Mr Colley on the ground that you were involved in a serious assault.
+At about the same time Bourgass was referred for an assessment for transfer to the Close Supervision Centre (CSC), which houses prisoners considered too dangerous and challenging to be held in ordinary locations.
+On 12 May 2010 Mr Guedalla wrote again asking for information about the evidence relied on.
+On 14 May 2010 the prison replied, stating that Bourgass was being held in segregation due to his involvement in the planning of an assault on another prisoner [which] is currently being investigated by the police.
+Continued segregation was authorised on 18 May 2010 pending an investigation into a serious assault.
+In a letter of the same date, Mr Guedalla again requested an outline of the evidence relied on.
+On or before 20 May 2010 the police indicated that they did not regard Bourgass as a suspect in connection with the assault on Sahebzadeh, and that he was no longer the subject of investigation by them.
+Mr Guedalla then wrote to the governor again, referring to the outcome of the police inquiries and requesting disclosure of the reasons for any further segregation, and of the evidence relied on to support it.
+The prison replied by letter dated 26 May 2010, stating that the investigation was still ongoing.
+In a letter to Mr Guedalla dated 28 May 2010, Mr Colley stated that Bourgass is a prisoner we believe to hold extremist views and has an influence over other prisoners, that he was being referred to the CSC, and that he would remain segregated until the result of that referral was known.
+On 1 June 2010 Bourgasss continued segregation was authorised by Mr Colley, the reason given being that you are an unacceptable risk to other prisoners.
+Mr Colley authorised continued segregation again on 15 June 2010, the reason given being pending CSC referral and investigation.
+He authorised continued segregation again on 29 June 2010, giving the reason you are being investigated for a serious assault, and again on 13 July 2010, giving as his reason that you were involved in a very serious assault.
+Continued segregation was again authorised on 27 July 2010 by another officer, on the ground that a final decision was awaited on the CSC referral.
+In the meantime, Mr Guedalla had initiated judicial review proceedings, which were listed for a hearing on 4 November 2010.
+On 17 June 2010 the Secretary of State filed a response which said that Bourgass was not being segregated simply because he may be responsible for the assault, but because, for numerous reasons, he is considered to pose an unacceptable risk on normal location.
+The additional reasons were based on intelligence that he had been involved, prior to the commencement of his segregation on 10 March 2010, in intimidating other prisoners to change faith, and forcing other prisoners to join in prayer sessions and to refrain from eating certain foods for religious reasons.
+On 2 August 2010 the Secretary of State filed detailed grounds of defence, which disclosed that the basis upon which Bourgass was suspected of involvement in the assault on Sahebzadeh was principally that, during the morning prior to the assault, he had been seen on CCTV speaking to the perpetrator of the assault.
+It is difficult to understand why that information, and indeed the CCTV footage itself, had not been provided during the previous three months.
+The Secretary of State also filed a witness statement of Mr Garvie, who stated that Bourgass had been transferred to Whitemoor in the first place because of his perceived influence over other prisoners at his previous prison and suspicion that he was bullying and intimidating other prisoners there.
+On his arrival at Whitemoor, he had been placed on the prisons anti bullying regime but, according to Mr Garvie, had failed to engage with it and had continued his attempts to intimidate other prisoners.
+His initial segregation after the incident on 10 March 2010 had been a reaction to that incident, but it had been decided that he should remain in the segregation unit because it was believed that his attempts to influence other prisoners had caused Sahebzadeh to assault him out of frustration.
+There had been an escalation in violence within the prison that involved prisoners being pressurised into assaulting other prisoners for faith related reasons.
+It was believed that Bourgass was involved in this.
+Following his removal from segregation on 23 April 2010, he had again been segregated because he was known to have met the perpetrator of the assault which took place that day, there was intelligence suggesting that he had been involved in the organisation of that assault as retaliation for the previous assault on himself, and there was intelligence suggesting that he had influence over other prisoners.
+These factors, combined with his history of violence and intimidation, led to the conclusion that he could no longer be managed on normal location.
+At the meeting of the SRB on 4 May 2010, it had been decided that he should be referred to the CSC.
+If the CSC referral were refused, Mr Garvie stated, Bourgass would have to be moved to another establishment.
+Mr Garvie also disclosed that the prison authorities had decided that there was insufficient evidence to bring a disciplinary charge against Bourgass in relation to the assault on Sahebzadeh.
+They nevertheless considered, on the basis of his history, as well as their suspicion as to his involvement in the organisation of the assault on Sahebzadeh, that there would be a significant risk to the safety of other prisoners if he were returned to normal location.
+Continued segregation was authorised on 10 August 2010, the reason given being that you are down as a threat to other prisoners and we are awaiting a referral to CSC.
+On 24 August 2010 continued segregation was again authorised, the reason given being that your behaviour is deemed to be unsuitable for normal location and have been referred to CSC (sic).
+It was said that he would remain in segregation until the outcome of the referral.
+On 7 September 2010 continued segregation was authorised by Mr Colley, who reverted to the reason, pending an investigation into a serious assault.
+On 15 September 2010 the CSC Management Committee decided not to accept Bourgasss referral to the CSC, in the light of a report by the Central Case Management Group, a body within the prison service but external to Whitemoor.
+Its report stated that the referral was primarily based on alleged violence towards prisoners, with reference to the assault on Sahebzadeh.
+The report concluded, however, that the referral did not provide sufficient evidence to justify selection for the CSC.
+It noted that no internal investigation was being carried out into the assault on Sahebzadeh, and that the police did not consider Bourgass to have been involved.
+As to the allegations of intimidation, it stated that there is very little that shows he is intimidating others.
+On 21 September 2010 continued segregation was authorised, the reason given being that you will be transferred to another establishment, as we feel you would be a disruptive influence on normal location at Whitemoor.
+Mr Guedalla wrote to the Treasury Solicitor on 22 September pointing out that one reason which had sometimes been given for Bourgasss segregation, namely involvement in the assault on Sahebzadeh, had been rejected by the police after investigation, and that another, the need to await the outcome of the referral to the CSC, had been superseded.
+Bourgass had been held in segregation for a period of over seven months, apart from a 24 hour period on 22/23 April 2010.
+Mr Guedalla reminded the Treasury Solicitor of concerns that had been expressed by the senior forensic psychologist at Whitemoor about the potential effect of prolonged segregation on Bourgasss mental health.
+On 5 October 2010 continued segregation was authorised, the reason given being that we are trying to transfer you.
+On 3 November 2010, the day before the judicial review hearing, Bourgass was transferred to HMP Woodhill.
+He had been in segregation almost continuously since 10 March 2010.
+On arrival at Woodhill, he was removed from segregation and placed on normal location.
+The application for judicial review was heard together with that of the second appellant by Irwin J, who dismissed both applications: [2011] EWHC 286 (Admin).
+Their appeals to the Court of Appeal were heard together with that of a third appellant named King.
+All three appeals were dismissed: [2012] EWCA Civ 376; [2012] 1 WLR 3602.
+The conditions of the first appellants segregation
+During segregation, Bourgass was locked in his cell for 23 hours a day, and was denied association with other prisoners.
+He was allowed out of his cell for exercise, which he took alone in a caged area.
+He was unable to participate in activities which involved association with other prisoners, such as work, education and communal religious services.
+Prisoners in segregation could however have access to education courses in their cells.
+He was permitted visits, but not physical contact with visitors, until that restriction was lifted during July 2010.
+He saw a member of the chaplaincy from time to time.
+He also saw members of staff of the segregation unit when they opened the door to his cell at mealtimes.
+He was permitted books and a radio, and also had the opportunity to have a television if he displayed consistently good behaviour and a good attitude.
+The second appellant: the history of events
+In 2010 the second appellant, Tanvir Hussain, was a prisoner in HMP Frankland, which is another high security prison.
+He was serving a life sentence, having been convicted of involvement in a terrorist conspiracy.
+On 26 April 2010 Hussain was placed in segregation under rule 45 on the orders of the residential governor of the prison, Mr Greener, following an incident in which another prisoner, Aslan, was seriously injured.
+The reason given was to ensure the safety of others and to maintain good order.
+Disciplinary proceedings also began on the same date, in which it was alleged that Hussain had assaulted Aslan.
+He was provided with a report by a prison officer who said that he had seen Hussain assaulting Aslan and had heard him make an incriminating remark.
+The adjudicator decided to refer the matter to the police, and adjourned the adjudication.
+On 27 April 2010 Hussains continued segregation was authorised by an officer on the ground that following an alleged recent assault on a fellow prisoner we need to assess your risk and future location.
+A further continuation was authorised on 5 May 2010 by Mr Greener, the reason given being the risks you pose to others.
+A further continuation was authorised on 19 May 2010, due to the serious nature of the incident you were involved in on J Wing and the risk you pose to others.
+Hussains solicitor, Mr Guedalla, wrote to the governor the same day requesting an explanation of why it was necessary for Hussain to be kept in segregation, and for an outline of any evidence relied on.
+In response, the prison stated that segregation had been continued because of the risk Hussain potentially posed to other prisoners.
+A further continuation was authorised on 2 June 2010, to maintain good order and discipline after an assault on another prisoner.
+On 14 June 2010 Mr Greener wrote to Mr Guedalla stating that Hussain remained segregated following his physical attack upon another prisoner.
+It was said that the savage nature of the attack raised obvious risk concerns relating to other prisoners.
+Further continuations were authorised on 16 and 30 June and 14 July 2010, the reasons given being respectively pending police investigation and security review, due to ongoing investigation into an assault on another prisoner, and pending ongoing investigation into a serious assault on another prisoner.
+A further continuation was authorised by Mr Greener on 28 July 2010, on the ground that it is believed you may pose a threat to others, and you may be at risk from other prisoners.
+The latter possibility had not previously been mentioned.
+In the meantime, Mr Guedalla had initiated judicial review proceedings, which were listed for a hearing together with the proceedings brought by Bourgass.
+On 30 July 2010 the Secretary of State submitted detailed grounds of defence together with a witness statement of Mr Greener.
+It was said, in Mr Greeners witness statement, that Hussain had initially been segregated because of the severity of the assault on Aslan, the fact that it appeared to have taken place as the result of a mundane disagreement over food, and the risk which Hussain therefore posed to other prisoners.
+Consideration had also been given to the risk of reprisals by Aslan or other prisoners.
+Intelligence information also linked Hussain with the conditioning of segregated prisoners who were susceptible to manipulation.
+Three such prisoners had informed segregation unit staff that they had changed their religion from Christianity to Islam, having been converted through their cell windows by another prisoner.
+Intelligence suggested that Hussain was preaching Islam through his cell window to others in a determined attempt to convert non Muslim prisoners to his own interpretation of Islamic ideals.
+There was concern that his interpretation of the Quran was in line with his terrorist beliefs, and that the promulgation of his ideals had the potential to cause serious disruption both in the segregation unit and in the general prisoner population.
+Mr Greener did not consider that the risk posed by Hussain could be managed by means of closer supervision on normal location, transfer to another wing or transfer to another establishment.
+He therefore remained in the segregation unit while he was monitored with the aim of assessing whether he should be referred to the CSC.
+In a witness statement filed in reply, Hussain gave a detailed response to the allegation of proselytising.
+He quoted the sentencing remarks of the judge at his trial, to the effect that there was no evidence that he was a religious fanatic, and that his involvement in the offence appeared to be entirely attributable to his loyalty to his co defendant.
+In correspondence some months later, concerned with Hussains security classification, the prison authorities stated that it was believed not to be Hussain who had converted the prisoners.
+On 10 August 2010 the judicial review proceedings were listed for a hearing.
+The following day, it was recorded that Hussain was being considered for transfer to another establishment.
+A further continuation of segregation was authorised because of an assault on another prisoner.
+A further continuation of segregation was authorised by Mr Greener on 25 August 2010, pending transfer to another establishment; and due to risks you pose to others.
+Further continuations of segregation were authorised on 8 and 22 September 2010, the reasons given being respectively that due to the assault on another prisoner you are to remain segregated until transferred out of the establishment, and because of the risk you pose to others on the wing.
+On or before 19 October 2010 Hussain was transferred to HMP Wakefield.
+He had been in solitary confinement since 26 April 2010.
+Following the police investigation, Hussain was charged with an assault upon Aslan.
+On 3 February 2011 the Crown Prosecution Service informed Hussains solicitors that the proceedings were being discontinued on the ground that there was insufficient evidence to provide a realistic prospect of conviction.
+The conditions of the second appellants segregation
+The conditions in which Hussain was kept in segregation were broadly similar to those that applied to Bourgass.
+He was only able to make a telephone call once every three days, as there were fewer telephones available than on normal location.
+As there was no electricity in the cells in the segregation unit, he did not have a television.
+Hussain also claimed to have been denied exercise on some occasions.
+The regime which was applied to Bourgass and Hussain is similar to that which applies to prisoners undergoing cellular confinement as a punishment for an offence against discipline.
+Such a punishment can however only be imposed following disciplinary proceedings conducted in accordance with the Rules.
+It can, in addition, only be imposed for a maximum of 21 days.
+That maximum reflects the well known risks which solitary confinement poses to the mental health of those subjected to it for prolonged periods: a matter to which I turn next.
+The effects of segregation
+In about 2003 the Secretary of State issued Prison Service Order 1700 (the PSO), a non statutory document concerned with segregation.
+It acknowledges that the number of self inflicted deaths in segregated settings is disproportionate.
+It continues at p 29: Research into the mental health of prisoners held in solitary confinement indicates that for most prisoners there is a negative effect on their mental wellbeing and that in some cases the effects can be serious.
+A study by Grassian & Friedman (1986) stated that, Whilst a term in solitary confinement would be difficult for a well adjusted person, it can be almost unbearable for the poorly adjusted personality types often found in a prison.
+The study reported that the prisoners became hypersensitive to noises and smells and that many suffered from several types of perceptual distortions (eg hearing voices, hallucinations and paranoia).
+According to a report published in June 2015 by the Prisons and Probation Ombudsman for England and Wales, 28 prisoners took their own lives while being held in segregation units in England and Wales between January 2007 and March 2014.
+An interim report submitted to the UN General Assembly in August 2011 by Juan E Mndez, the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment expressed particular concern about prolonged solitary confinement (or segregation, as it was also termed), which he defined as solitary confinement in excess of 15 days.
+He noted that after that length of time, according to the literature surveyed, some of the harmful psychological effects of isolation can become irreversible (para 26).
+He also noted that lasting personality changes often prevent individuals from successfully readjusting to life within the broader prison population and severely impair their capacity to reintegrate into society when released from prison (para 65).
+The previous Special Rapporteur, Manfred Nowak, annexed to an earlier report, submitted in July 2008, the Istanbul Statement on the Use and Effects of Solitary Confinement, adopted on 9 December 2007.
+It stated, in a passage cited by the Special Rapporteur: It has been convincingly documented on numerous occasions that solitary confinement may cause serious psychological and sometimes physiological ill effects.
+Research suggests that between one third and as many as 90% of prisoners experience adverse symptoms in solitary confinement.
+A long list of symptoms ranging from insomnia and confusion to hallucinations and psychosis has been documented.
+Negative health effects can occur after only a few days in solitary confinement, and the health risks rise with each additional day spent in such conditions.
+Similar conclusions were reached by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in its 21st General Report of 10 November 2011.
+It referred to evidence that solitary confinement can have an extremely damaging effect on the mental, somatic and social health of those concerned, which increases the longer the measure lasts and the more indeterminate it is (para 53).
+It considered the maximum period for which solitary confinement should be imposed as a punishment to be 14 days (para 56(b)).
+The risks of segregation are recognised by the Secretary of State.
+On his behalf, it is said that segregation is used as a last resort where other means of addressing risk are considered insufficient.
+The alternatives include transfer to another wing, to another establishment, to a CSC, or to a Dangerous and Severe Personality Disorder Unit; or closer supervision on normal location, which might include constant CCTV observation, and resort to powers to use physical force so far as necessary; or the use of an incentives and earned privileges scheme.
+Was the segregation duly authorised?
+duly authorised.
+Rule 45
+The legal basis for segregation is rule 45 of the Rules.
+It provides, so far as material: I turn next to the question whether the appellants continued segregation was (1) Where it appears desirable, for the maintenance of good order or discipline or in his own interests, that a prisoner should not associate with other prisoners, either generally or for particular purposes, the governor may arrange for the prisoner's removal from association accordingly. (2) A prisoner shall not be removed under this rule for a period of more than 72 hours without the authority of the Secretary of State and authority given under this paragraph shall be for a period not exceeding 14 days but it may be renewed from time to time for a like period. (3) The governor may arrange at his discretion for a prisoner removed under this rule to resume association with other prisoners at any time .
+It is clear from rule 45(1) and (3) that removal from association is something which is arranged, and may be ended, by the governor: an expression with a specific meaning, as I shall explain.
+It is equally clear from rule 45(2) that removal from association is not to last for a period exceeding 72 hours without the authority of the Secretary of State.
+The appellants complain that their segregation was ordered without that authority.
+PSO 1700
+As explained earlier, in about 2007 the Secretary of State issued a non statutory document concerned with segregation, known as PSO 1700.
+The PSO provides for the establishment of SRBs, chaired by a competent operational manager.
+Counsel for the Secretary of State informed the court that an operational manager is an officer performing a senior role within a prison, such as the head of security or the head of the segregation unit.
+Such officers are accorded the title governor, although not in fact the governor of the prison or the duty governor for the time being (these expressions will be explained later).
+The PSO adds that a person who is acting up/temporarily promoted to competent operational manager is able to give authority for the continuation of segregation.
+The PSO states that the initial SRB must be held within 72 hours of a prisoner being placed in segregation, and that subsequent SRBs should be held at least every 14 days.
+Those intervals correspond to those required by rule 45(2).
+The initial SRB should comprise at least a chairman and a healthcare representative, and subsequent SRBs may also include other members of prison staff, such as the chaplain, and the prisoner for at least part of the Board.
+It is said to be desirable that a member of the independent monitoring board for the prison (the IMB), appointed by the Secretary of State under section 6 of the Prisons Act 1952 as amended (the 1952 Act), should also attend.
+In relation to procedure, the PSO states that, once a decision has been reached by the SRB, it is good practice for the chairman to ask the IMB member to comment on it and to indicate whether he or she is likely to raise an objection to it.
+The chairman will then make a final decision on the matter.
+In that regard, the PSO states: The Review Board decides, after considering all of the factors detailed in section 2 [the part of the PSO headed What the Review Board should consider], whether or not to authorise segregation to continue for a certain period of time (up to the maximum of 14 days).
+The operational manager chairing the Board has the final authority as to whether to authorise continuation of segregation under rule 45 (YOI rule 49) and must sign the relevant part of the form Segregation Review Board Governors Continued Authority for Segregation.
+It is common ground that the PSO thus purports to confer on a member of the staff of the prison, namely the operational manager chairing the SRB, the power to authorise the continued segregation of a prisoner after the initial 72 hours ordered by the governor.
+The first question raised by the appellants is whether authority under rule 45(2) can lawfully be given by an operational manager, as envisaged by the PSO, and as occurred in relation to both appellants, given that rule 45(2) requires authority to be given by the Secretary of State.
+It is argued on behalf of the Secretary of State that rule 45(2) permits governors and other senior prison officers to take such decisions, when authorised to do so by the Secretary of State, and that such authority has been lawfully granted by the PSO.
+The Secretary of States argument is not that a blanket authorisation has been granted by the Secretary of State ab ante.
+The argument, rather, is that the decision of the governor or the operational manager is the decision of the Secretary of State, by virtue of the operation of the Carltona principle.
+Alternatively, it is argued that the words the Secretary of State, in rule 45(2), should as a matter of construction be interpreted as including prison governors and other senior prison officers.
+The Carltona principle
+In Carltona Ltd v Comrs of Works [1943] 2 All ER 560, the Court of Appeal rejected a challenge made to a decision taken by a senior civil servant on the ground that the statutory power was conferred on the minister rather than his officials.
+Lord Greene MR said at p 563: In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them.
+To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministries.
+It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter.
+The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department.
+Public business could not be carried on if that were not the case.
+Constitutionally, the decision of such an official is, of course, the decision of the minister.
+The minister is responsible.
+It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that in Parliament.
+The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials.
+If they do not do that, Parliament is the place where complaint must be made against them.
+The Carltona principle, as it has become known, is not one of agency as understood in private law.
+Nor is it strictly one of delegation, since a delegate would normally be understood as someone who exercises the powers delegated to him in his own name.
+Rather, the principle is that a decision made on behalf of a minister by one of his officials is constitutionally the decision of the minister himself.
+As Jenkins J stated in Lewisham Borough Council v Roberts [1949] 2 KB 608, 629, when rejecting an argument that the principle was one of delegation: I think this contention is based on a misconception of the relationship between a minister and the officials in his department.
+A minister must perforce, from the necessity of the case, act through his departmental officials, and where as in the Defence Regulations now under consideration functions are expressed to be committed to a minister, those functions must, as a matter of necessary implication, be exercisable by the minister either personally or through his departmental officials; and acts done in exercise of those functions are equally acts of the minister whether they are done by him personally, or through his departmental officials, as in practice, except in matters of the very first importance, they almost invariably would be done.
+No question of agency or delegation . seems to me to arise at all.
+An official in a government department is in a different constitutional position from the holder of a statutory office.
+The official is a servant of the Crown in a department of state established under the prerogative powers of the Crown, for which the political head of the department is constitutionally responsible.
+The holder of a statutory office, on the other hand, is an independent office holder exercising powers vested in him personally by virtue of his office.
+He is himself constitutionally responsible for the manner in which he discharges his office.
+The Carltona principle cannot therefore apply to him when he is acting in that capacity.
+It is possible that a departmental official may also be assigned specific statutory duties.
+In that situation, it was accepted in R v Secretary of State for the Home Department, Ex p Oladehinde [1991] 1 AC 254 that the official remained able to exercise the powers of the Secretary of State in accordance with the Carltona principle.
+It is also possible that the performance of statutory ministerial functions by officials, or by particular officials, may be inconsistent with the intention of Parliament as evinced by the relevant provisions.
+In such circumstances, the operation of the Carltona principle will be impliedly excluded or limited: Oladehinde at p 303.
+Furthermore, the authorisation of officials to perform particular ministerial functions must in any event be consistent with common law requirements of rationality and fairness: see, for example, Oladehinde at pp 281 282 per Lord Donaldson of Lymington MR (in the Court of Appeal), and at pp 300 and 303 per Lord Griffiths.
+The legislative framework
+In considering rule 45(2), it is necessary to note at the outset that the court was provided with only minimal information about the administrative relationships between prisons (both those staffed by civil servants and those that are contracted out to private operators, to which rule 45(2) also applies), Her Majestys Prison Service, the National Offender Management Service and the Ministry of Justice, and with no information about the governance arrangements or the arrangements in relation to accountability to Parliament.
+Counsel for the Secretary of State relied upon the decisions in R v Secretary of State for Social Security, Ex p Sherwin (1996) 32 BMLR 1 and Castle v Director of Public Prosecutions [2014] EWHC 587 (Admin); [2014] 1 WLR 4279, implicitly inviting the court to assume that there was no relevant difference between the relationship of the agency officials with which those cases were concerned and the Secretary of State, on the one hand, and the relationship of prison governors and other prison staff and the Secretary of State for Justice, on the other hand.
+That cannot however be assumed.
+The decisions in Ex p Sherwin and Castle were based upon evidence concerning the relationship between officials of the Benefits Agency and the Highways Agency, respectively, and the relevant departments of government.
+No equivalent evidence is before this court.
+Furthermore, unlike those cases, the relationship between prison governors and other officers, on the one hand, and the Secretary of State on the other hand, is the subject of specific legislation: something which, in itself, points towards a different relationship from that between a departmental official and a minister, since it is not readily reconciled with the idea that prison governors and officers, and the Secretary of State, are constitutionally indistinguishable.
+Section 3 of the 1952 Act empowers the Secretary of State to appoint such officers and employ such other persons as he may . determine.
+Under section 4(1), the Secretary of State shall have the general superintendence of prisons and shall make the contracts and do the other acts necessary for the maintenance of prisons and the maintenance of prisoners.
+Section 4(2) and (3) provide: (2) Officers of the Secretary of State duly authorised in that behalf shall visit all prisons and examine the state of buildings, the conduct of officers, the treatment and conduct of prisoners and all other matters concerning the management of prisons and shall ensure that the provisions of this Act and of any rules made under this Act are duly complied with. (3) The Secretary of State and his officers may exercise all powers and jurisdiction exercisable at common law, by Act of Parliament, or by charter by visiting justices of a prison.
+Section 7 provides: (1) Every prison shall have a governor, a chaplain and such other officers as may be necessary. (3) A prison which in the opinion of the Secretary of State is large enough to require it may have a deputy governor .
+The implication is that a prison has only one governor within the meaning of the 1952 Act.
+Section 8 confers on every prison officer the powers, authority, protection and privileges of a constable.
+Section 13 provides: Every prisoner shall be deemed to be in the legal custody of the governor of the prison.
+Other sections confer powers or impose duties specifically upon the governor or prison officers.
+Examples include sections 16A and 16B, which empower the governor to authorise the testing of prisoners for drugs and alcohol, and empower prison officers to carry out such testing in accordance with the authorisation.
+Provisions such as these can be contrasted with other provisions conferring powers or imposing duties upon the Secretary of State, generally of wider scope, or of a supervisory nature.
+There are also provisions which confer separate and overlapping powers on the governor and on the Secretary of State, such as sections 40A to 40E.
+Apart from a small number of powers for which specific provision is made, such as those I have mentioned, the 1952 Act gives no content to the powers of governors or other prison officers.
+By section 47(1), however, Parliament has enabled the Secretary of State to make rules conferring a wide range of powers: The Secretary of State may make rules for the regulation and management of prisons, remand centres, young offender institutions or secure training centres and for the classification, treatment, employment, discipline and control of persons required to be detained therein.
+It was under section 47(1) that the Rules were made.
+Several features of the Rules are relevant to the present question.
+First, a number of the Rules expressly confer powers upon the Secretary of State.
+Numerous powers are also conferred or imposed expressly on governors, a term which is defined by rule 2 as including an officer for the time being in charge of a prison.
+A governor, within the meaning of the Rules, can therefore include an officer who is acting as duty governor, as well as the governing governor of the prison.
+Secondly, some rules deal separately with the powers and duties of the Secretary of State, on the one hand, and the governor, on the other.
+For example, rule 35(3) empowers the governor to allow a prisoner an additional letter or visit, and rule 35(7) separately empowers the Secretary of State to allow additional letters and visits in relation to any prisoner.
+Rule 45 also falls into this category, as I have explained.
+Thirdly, numerous rules require the governor or prison officers to act in accordance with directions or guidance given by the Secretary of State.
+For example, rule 55(4) requires the governor, in imposing a punishment, to take into account any guidelines issued by the Secretary of State.
+It would scarcely be necessary to impose explicit requirements of this kind if the governor and prison officers were, for these purposes, in the position of departmental officials.
+It would then go without saying that they were bound to carry out the instructions of their minister.
+Fourthly, several other rules require the governor to act in a specified manner towards the Secretary of State.
+For example, rule 22(2) requires the governor to notify the Secretary of State of the death of a prisoner.
+Rules of this kind would again be unnecessary if the governor were in the position of a departmental official.
+Legislation is scarcely necessary to require departmental officials to provide their minister with the information he desires.
+In the light of the foregoing, it is apparent that the arrangements governing the relationship between the Secretary of State and prison governors, established by the 1952 Act and the Rules, bear no resemblance to those governing the relationship between a minister and his departmental officials.
+Prison governors, whether the governor appointed under the 1952 Act or the wider class of governors referred to in the Rules, are the holders of an independent statutory office.
+The governor, not the Secretary of State, has custody of the prisoners held in the prison in question.
+He and his officers, unlike the Secretary of State, have the powers of constables.
+He and his officers exercise the powers over prisoners which are conferred on them by rules made by the Secretary of State, under the power conferred on him by section 47(1).
+The Secretary of States officers in turn ensure that those rules are complied with, in accordance with section 4(2).
+Under the Rules, the powers of governors and of the Secretary of State are distinctly demarcated.
+Some powers are exercised by governors independently.
+In relation to others, they are expressly required by law to act in accordance with, or have regard to, directions given by the Secretary of State: a requirement which demonstrates their constitutional separation from the Secretary of State and his departmental officials.
+The case law
+There are two decisions of the House of Lords in which the relationship between prison governors and the Secretary of State has been considered.
+In the first, Leech v Deputy Governor of Parkhurst Prison [1988] AC 533, the question was whether a disciplinary decision by a governor was amenable to judicial review.
+In the course of considering that question, their Lordships made a number of observations which are pertinent to the present issue.
+Lord Bridge of Harwich, in a speech with which the other members of the House agreed, stated at p 561: The governor of a prison holds an office created by the Act of 1952 and exercises certain powers under rules 47 to 55 of the Rules of 1964 [the disciplinary provisions then in force] which are conferred upon him and him alone.
+Lord Bridge went on to address the reasoning in an earlier decision of the Court of Appeal, which had distinguished between prison governors and boards of visitors on the basis that governors were servants or agents of the Secretary of State: A prison governor may in general terms be aptly described as the servant of the Secretary of State, but he is not acting as such when adjudicating upon a charge of a disciplinary offence.
+He is then exercising the independent power conferred on him by the rules.
+The Secretary of State has no authority to direct the governor, any more than the board of visitors, as to how to adjudicate on a particular charge or what punishment should be awarded.
+If a Home Office official sought to stand behind the governor at a disciplinary hearing and tell him what to do, the governor would properly send him packing. (p 563)
+It follows from Lord Bridges observations that the Secretary of State, having no authority to direct the governor in the exercise of his disciplinary powers, could have no constitutional responsibility for the governors exercise of those powers (as distinct from his own supervisory functions), and that the rationale underpinning the Carltona principle would therefore be absent.
+Lord Oliver of Aylmerton, whose speech was also concurred in by the other members of the House, reiterated that the office of a governor of a prison is the creation of statute (p 569).
+He went on to observe: The starting point of the inquiry appears to me to be that the prison governor is not a mere servant or alter ego of the Secretary of State but a statutory officer performing statutory duties.
+Many of those duties are of a purely administrative nature and involve no adjudicatory function at all. (p 578)
+Applying Lord Olivers dictum, plainly the Carltona principle can have no application in so far as the governor is performing those duties.
+Lord Bridge focused particularly on the governors exercise of disciplinary functions, but, as Lord Oliver recognised, the same principle applies to the exercise of administrative functions.
+As I explained earlier, the important question is whether the function in question is one which is performed by the governor as the holder of an independent statutory office, as distinct from being a function of the Secretary of State which might be performed by any Crown servant authorised by him.
+It is also necessary to note the decision of the Court of Appeal in R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] AC 58.
+The case concerned rule 43 of the Prison Rules 1964 as amended, which was the predecessor of rule 45 of the Rules in issue in the present appeals.
+Under rule 43(1), as under the later rule 45(1), the initial power to segregate was given to the governor.
+The case arose from the fact that the governor of one prison had purported to authorise the segregation of a prisoner on his arrival at another prison to which he was being transferred, as required by an instruction issued by the Home Office.
+The prisoners continued segregation at his new prison, after the initial period of segregation expired, was then automatically authorised by the regional director of prisons on behalf of the Secretary of State, in accordance with the same instruction.
+Both authorisations were held to be ultra vires.
+The governor of one prison had no power to order the segregation of a prisoner held in another prison: the decision could only be taken by the governor of the prison where the prisoner was currently held.
+Nor could the Secretary of State lawfully authorise segregation as a matter of routine, without a genuine exercise of his discretion both as to whether it should be given and, if so, for how long.
+In a judgment with which Nicholls LJ and Sir Nicolas Browne Wilkinson V C agreed, Taylor LJ addressed an argument that the Secretary of State possessed a residual power to initiate segregation under rule 43.
+He observed at p 107: Whether or not the Secretary of State retains an overall power to segregate a prisoner, he cannot, in my judgment, exercise it under rule 43 because that rule gives powers specifically to the governor.
+Rule 43(2) provides for authority to be given to the governor to segregate for more than 24 hours by either a visitor or the Secretary of State.
+But that authority is merely clothing for the governor.
+The decision under this rule is still his.
+I do not accept, therefore, that the Secretary of State can act under rule 43 to initiate segregation.
+Taylor LJ went on to explain the fact that the Secretary of States authority was required as a safeguard provided to protect the prisoners rights (p 110).
+These passages are doubly relevant to the present case.
+First, the implication is that segregation is at all times dependent on the governors being of the view that it appears desirable for the maintenance of good order and discipline, as required by rule 43(1) of the 1964 Rules and rule 45(1) of the current Rules.
+The governor, for these purposes, means the governing governor or the duty governor, to adopt the expressions used by counsel for the Secretary of State.
+It does not mean any prison officer meeting the description of a competent operational manager.
+Secondly, the governors functions under rule 43 are distinct from those of the Secretary of State, and neither can perform the functions properly belonging to the other.
+In particular, since segregation beyond the initial period requires the authorisation of the Secretary of State, as a safeguard for the prisoner, in addition to the governors being of the view that continued removal from association is desirable, it follows that such authorisation cannot be given by the governor (let alone by a more junior member of his staff).
+The second decision of the House of Lords is that in Somerville v Scottish Ministers [2007] UKHL 44; [2007] 1 WLR 2734.
+One of the issues in the case was whether the act of the governor of a Scottish prison, in ordering the segregation of a prisoner, was to be regarded as the act of the Scottish Ministers by virtue of the Carltona principle.
+Under rule 80(1) of the Prisons and Young Offenders Institutions (Scotland) Rules 1994 (SI 1994/1931), the governor could order that a prisoner should be removed from association with other prisoners.
+Rule 80(5) provided that a prisoner who had been removed from association by virtue of an order made by the governor should not be subject to such removal for a period in excess of 72 hours from the time of the order except where the Scottish Ministers had granted written authority on the application of the governor.
+As Lord Rodger of Earlsferry observed at para 135, the terms of these rules would therefore suggest that, while the basis for the initial segregation of 72 hours would be the governors order, the basis for any segregation for a period of longer than that would be constituted by the governor's order plus the written authority granted by the Scottish Ministers.
+That is consistent with the view expressed by Taylor LJ in Hague.
+Lord Rodger accepted the Scottish Ministers argument that, when making an order under rule 80(1), the governor was exercising a specific power which the rules conferred on governors and which could not be exercised by the ministers themselves.
+In that regard he applied the reasoning of Lord Oliver in Leech, on the basis that it was equally applicable to the governors role under rule 80 as to his disciplinary functions.
+He added, at para 140: Whoever is acting as governor for the purposes of rule 80 at the relevant time is exercising a distinct function, or distinct functions, which cannot be carried out by the Scottish Ministers.
+Under rule 80 of the Scottish Prison Rules, the Scottish Ministers have their own distinct functions.
+The division between the role of the governor and the role of the Ministers is indeed essential if the protections for prisoners contained in the rule are to be effective.
+It follows that the familiar principle in Carltona Ltd v Comrs of Works [1943] 2 All ER 560 has no application to what the governor does under rule 80.
+The approach adopted in Somerville is consistent with that adopted in Leech, and as I have explained with that of the Court of Appeal in Hague.
+The implication of the decisions is that the powers that are confided to the governor by rule 45(1) or its Scottish equivalent are conferred on him in his own right, and not in the performance of functions of the Secretary of State.
+They are therefore not within the ambit of the Carltona principle.
+Equally, the Secretary of States function under rule 45(2), or its Scottish equivalent, is distinct from the function of the governor, and exists as a safeguard to protect the prisoner.
+Counsel for the Secretary of State relied upon a number of other cases.
+The first was the case of R v Governor of Brixton Prison, Ex p Walsh [1985] AC 154, which was cited in Leech but not referred to in the speeches.
+The issue in that case was whether the Secretary of State, or the governor of a prison holding remand prisoners, was under a duty to produce them at court in accordance with the terms of their remand.
+Counsel relied upon a passage in Lord Fraser of Tullybeltons narration of the background circumstances, in which he stated at p 165 that the power conferred on the Home Secretary by section 29(1) of the Criminal Justice Act 1961, to direct that a detained person should be taken to a place where his attendance was desirable in the interests of justice, had been delegated to the governors of prisons for certain purposes.
+The matter was not argued or discussed.
+The use of the term delegated suggests that it was not the Carltona principle that Lord Fraser had in mind.
+In the circumstances, I find this case of no assistance.
+Reliance was also placed on R v Secretary of State for the Home Department, Ex p Hickling [1986] 1 FLR 543.
+The case concerned the provision, now contained in rule 12(2) of the Rules, enabling the Secretary of State to permit a woman prisoner to have her baby with her in prison, subject to any conditions he thinks fit.
+The Secretary of State had issued a general instruction laying down criteria for admission to a mother and baby unit, together with the procedures to be followed, and stating that the final decision in a particular case should rest with the governor.
+The instruction also stated that the governor should arrange for the removal of the baby if he considered that the mothers behaviour was such as to threaten the serious disruption of the unit or the safety of the baby or other babies in the unit.
+The Court of Appeal held that the instructions laid down the conditions on which the Secretary of State permitted women prisoners to have their babies with them in prison, as contemplated by the relevant rule.
+Eveleigh LJ stated that it was not a case of the Secretary of State delegating his authority, but of his laying down conditions which must be fulfilled.
+Since those conditions addressed matters which the governor was best placed to judge, it was right to allow the governor to decide if they were not being complied with.
+It is apparent, therefore, that this case was not an application of the Carltona principle.
+The Carltona principle, statutory construction and rule 45
+Returning to rule 45 in the light of the foregoing discussion, it is virtually identical to the rule considered in Hague.
+Paragraph (1) enables the governor to arrange for the prisoners removal from association.
+Paragraph (2) provides that a prisoner shall not be removed under the rule for a period of more than 72 hours without the authority of the Secretary of State, and that authority given under this paragraph shall be for a period not exceeding 14 days.
+Authority is therefore given under rule 45(2) by the Secretary of State to the governor, the governor having already formed the view that continued segregation is desirable.
+That provision cannot sensibly be construed either as enabling the governor to give authority to himself, or as enabling authority to be given to him by a subordinate officer.
+Rule 45 is also similar to the Scottish rule considered in the case of Somerville.
+The only distinction between the Scottish rule and rule 45 which might conceivably be material is that the former expressly states that decisions to authorise removal beyond the initial period are made following an application by the governor.
+Although that is not expressly stated in rule 45(2), it must be implicit that the Secretary of States authority follows upon an initiative taken by the governor, as Taylor LJ considered in Hague.
+The minor difference in wording between the Scottish and English rules does not therefore warrant a different approach to the division of roles as between the governor and the Secretary of State from that held to exist, in the Scottish context, in Somerville, and in the English context, under the 1964 Rules, in Hague.
+The apparent rationale of rule 45(2) is clear.
+The governor can order segregation at his own hand for a maximum of 72 hours, but any longer period requires the authorisation of the Secretary of State in practice, senior officials from outside the prison in order to protect the prisoner against the risk of segregation for an unduly protracted period.
+Counsel for the Secretary of State argued, however, that rule 45(2) had no such rationale.
+His argument was based primarily on a detailed analysis of the history of rule 45 and of two other rules, rule 48 and rule 49.
+As originally made, rule 45(2) prohibited the removal of a prisoner under rule 45(1) for more than three days without the authority of a member of the board of visitors or of the Secretary of State.
+Rule 45(2) in its present form was substituted by the Prison (Amendment) (No 2) Rules 2005 (SI 2005/3437) (the 2005 amendments).
+The material change was the removal of the reference to a member of the board of visitors.
+Rule 48(1) permits the governor to order the temporary confinement of a prisoner in a special cell, but rule 48(2) prohibits the prisoners confinement there for longer than 24 hours without a direction in writing.
+In its original form, rule 48(2) required the direction to be given by a member of a board of visitors or by an officer of the Secretary of State (not being an officer of a prison).
+That rule was amended by the 2005 amendments so as to require the direction to be given by an officer of the Secretary of State.
+Rule 49(1) permits the governor to order that a prisoner be placed under restraint, but rule 49(4) provides that a prisoner must not be kept under restraint for longer than 24 hours without a direction in writing.
+In its original form, rule 49(4) required the direction to be given by a member of the board of visitors or by an officer of the Secretary of State (not being an officer of a prison).
+That part of the rule was not amended by the 2005 amendments.
+It was however amended by the Prison (Amendment) Rules 2008 (SI 2008/597) (the 2008 amendments), so as to require the direction to be given by a member of the independent monitoring board or by an officer of the Secretary of State (not being an officer of a prison).
+It was amended again by the Prison and Young Offender Institution (Amendment) Rules (SI 2009/3082) (the 2009 amendments), so as to remove the reference to a member of the independent monitoring board.
+In counsels submission, the original terms of rules 48(2) and 49(4), which referred to an officer of the Secretary of State (not being an officer of a prison), were designed to make it clear that the direction had to be given by an official external to the prison.
+Their effect was to draw a distinction between the functions of the governor under rules 48(1) and 49(1), and the functions which could not be performed by the governor, under rules 48(2) and 49(4).
+There had been no similar words in rule 45(2).
+The implication, it was argued, was that the function under rule 45(2) could be performed by any officer of the Secretary of State, whether within the prison or not, and including the governor in particular.
+The 2005 amendments, it was submitted, made the position even clearer.
+The words (not being an officer of a prison) had been removed from rule 48(2) but not from rule 49(4).
+The implication was that the function under rule 48(2) could now be performed by any officer of the Secretary of State, including an officer of the prison.
+Rule 48(2) was therefore placed in the same position as rule 45(2).
+No analogous amendment had been made to rule 45(2), because none was necessary: its terms had never prevented the function under that rule from being performed by an officer of the prison.
+The latter rule could not have been intended to be construed in the same way as rule 49(4), since it was expressed in different terms.
+I am not persuaded by this argument.
+In the first place, it proves too much.
+As I have explained, the Rules accord a variety of powers to the Secretary of State.
+Some of those powers are clearly not intended to be exercised by a governor or other prison officer.
+For example, rule 46(1) empowers the Secretary of State to direct a prisoners removal from association and his placement in a CSC.
+There is no express provision that the Secretary of States powers cannot be exercised by an officer of the prison.
+On counsels argument, it follows from the absence of those words that the Secretary of States powers under rule 46 could be exercised by a governor.
+In view however of the contrast between the power given by rule 45(1) to a governor to order removal from association in the ordinary case, and the power given by rule 46(1) to the Secretary of State in the special case where removal is to result in placement in a CSC, quite possibly in another prison, it is plain that the power under rule 46(1) is not intended to be exercisable by a governor.
+The presence of the language found in rule 49(4) (which appears to be unique to that provision), or its absence (as in the numerous other rules which address separately the functions of the governor and of the Secretary of State), cannot therefore be the touchstone.
+The premise of counsels argument, that whenever the Rules intend to restrict the delegation or devolution of the Secretary of States powers to an officer external to the prison they say so expressly, is not made out.
+Reliance on the differently worded provisions of rules 48 and 49 cannot therefore determine the meaning of rule 45(2).
+As in the cases of Hague and Somerville, it can in my opinion be inferred that rule 45(2) is intended to provide a safeguard for the prisoner: a safeguard which can only be meaningful if the function created by rule 45(2) is performed by an official from outside the prison.
+It makes sense that the governor should be able to act at his own hand initially, since decisions to remove a prisoner from association with other prisoners may need to be taken urgently.
+It also makes sense that the governor should be able, under rule 45(3), to arrange for the prisoners resumption of association with other prisoners at any time, and, in particular, in response to any medical recommendation.
+Rule 45(2) however ensures that segregation does not continue for a prolonged period without the matter being considered not only by the governor but also by officials independent of the management of the prison.
+If, as counsel submitted, rule 45(2) was not intended to provide a safeguard, then the requirement to obtain the authority of the Secretary of State, before segregation can lawfully continue for more than 72 hours, would lack any rationale.
+It follows that it is implicit in rule 45(2) that the decision of the Secretary of State cannot be taken on his behalf by the governor, or by some other officer of the prison in question.
+The Carltona principle cannot therefore apply to rule 45(2) so as to enable a governor or other prison officer to exercise the powers of the Secretary of State.
+It equally follows that the alternative argument advanced on behalf of the Secretary of State, that the expression the Secretary of State, in rule 45(2), implicitly includes the governor and other officers of the prison, must also be rejected.
+Quite apart from the implausibility of the argument in the light of other provisions of the Rules, as I have explained, it would in any event defeat the purpose of rule 45(2).
+Any purported performance of the Secretary of States function under rule 45(2) by a governor or other prison officer cannot therefore be treated as constituting performance by the Secretary of State.
+The Secretary of States purported delegation of his function under rule 45(2) to the chairman of the SRB, in terms of the PSO, was therefore unlawful.
+It follows that the decisions to continue the segregation of the two appellants were taken without lawful authority, and that their segregation beyond the initial 72 hours was therefore unlawful.
+Procedural fairness
+That is sufficient to determine these appeals.
+It is however appropriate also to deal with the questions of procedural fairness which divided opinion in the courts below and also occupied much of the hearing before this court.
+They concern two issues: first, the prisoners right to make representations and, for that purpose, to be provided with information about the basis on which authorisation for his continued segregation is sought; and secondly, the scope of judicial review of decisions taken under rule 45(2), and its compatibility with the requirements of article 6.1 of the ECHR, if that provision is applicable.
+It is important to be clear at the outset as to the nature of the decision making in question.
+Decisions under rule 45(2) do not involve the determination of a charge against the prisoner or the imposition of a punishment, either in form or in substance.
+As counsel for the Secretary of State emphasised, segregation decisions are not based on a determination of fact as to whether a particular event has occurred, but involve a judgment as to the risk posed to the good order and discipline of the prison, and whether the particular situation could be equally or better addressed by other measures, such as transfer to another wing, closer supervision on normal location or transfer to another establishment.
+Allegations may be made against a prisoner, but the subject matter of the Secretary of States decision is not whether the prisoner behaved as alleged: these are not disciplinary proceedings.
+Representations and the provision of information
+It is common ground that initial segregation generally has to be decided upon in circumstances of urgency.
+It is not argued that such decisions, which cannot last for more than 72 hours, must be preceded by any form of hearing.
+It is also common ground that decisions by the Secretary of State to grant authority for continued segregation are in a different position.
+On behalf of the appellants, it is submitted that fairness requires that the prisoner be provided with sufficient information about the reasons for seeking authority, and the evidence relied on, to enable him to make effective representations.
+It is accepted that the evidence may be redacted or summarised where necessary to protect essential interests.
+On behalf of the Secretary of State, it is accepted that fairness requires that prisoners should usually be given a meaningful opportunity to make representations in relation to such decisions, and entails that they should be provided with relevant information for that purpose.
+It is submitted that the duty to provide information is limited by countervailing considerations, such as those relating to security and the need to protect sources of information.
+It is therefore submitted that it is sufficient that the prisoner should be provided with the gist of the reasons for seeking authorisation, and the opportunity to make representations.
+The Secretary of State also submits that, on the facts of the appellants cases, that is what they were given.
+In relation to these matters, neither party seeks to support the decision of the Court of Appeal, which considered itself bound by its earlier decision in Hague to hold that the common law gave a prisoner no right to be provided with adequate disclosure or reasons to enable him to challenge his continued segregation.
+The Court of Appeal had previously declined to follow that aspect of its decision in Hague in relation to the segregation of child offenders (see R (SP) v Secretary of State for the Home Department [2004] EWCA Civ 1750), but considered itself bound by it as far as adult offenders were concerned.
+In Hague, it was conceded, as in the present appeals, that there was no right to be heard before the initial decision to segregate was made, given the urgency with which such decisions normally have to be made.
+It was however argued that fairness required that the prisoner be given the right to be heard before continued segregation was ordered.
+That argument was rejected by the Court of Appeal, primarily, it appears, because of the absence from the then rule 43 of any express procedural requirements, whereas such requirements could be found in the rules governing disciplinary proceedings.
+The Court of Appeal also considered that there were public policy grounds for not giving reasons to the prisoner, since such disclosure could reveal sensitive information and put security, or informants, at risk.
+The court supported its decision by reference, in particular, to its earlier decision in Payne v Lord Harris of Greenwich [1981] 1 WLR 754.
+The law relating to procedural fairness has not stood still since then.
+In R v Secretary of State for the Home Department, Ex p Doody [1994] 1 AC 531 the House of Lords overruled Payne v Lord Harris of Greenwich and, in the speech of Lord Mustill, set out the approach to be followed when considering questions of procedural fairness generally, and more particularly the procedural rights of prisoners in relation to decisions which may affect them adversely.
+The House also rejected the argument that the existence of express statutory rights to a fair hearing in relation to some kinds of decisions affecting prisoners entailed the absence of any such right in relation to all other such decisions.
+More recently, in R (Osborn) v Parole Board [2013] UKSC 61; [2014] AC 1115 this court considered the rationale of procedural fairness at common law, and emphasised both the instrumental value of enabling persons to participate in decision making when they may be able to contribute relevant information or to test other information before the decision maker, and the ethical value of allowing persons to participate in decision making which concerns them and is liable to have a significant effect on their rights or interests, where they may have something to say which is relevant to the decision to be taken.
+The court also referred to research indicating the significance of unfair procedures in prisons, in particular, in affecting prisoners attitudes and their prospects of rehabilitation.
+Whatever the position may have been in the past, the approach described in Doody and Osborn requires that a prisoner should normally have a reasonable opportunity to make representations before a decision is taken by the Secretary of State under rule 45(2).
+That follows from the seriousness of the consequences for the prisoner of a decision authorising his segregation for a further 14 days; the fact that authority is sought on the basis of information concerning him, and in particular concerning his conduct or the conduct of others towards him; the fact that he may be able to answer allegations made, or to provide relevant information; and, in those circumstances, from the common laws insistence that administrative power should be exercised in a manner which is fair.
+A contrary conclusion cannot be drawn from the absence from rule 45 of procedural provisions similar to those contained in the rules governing adjudication proceedings.
+It would be extraordinary if, where there was sufficient evidence to warrant disciplinary proceedings, the prisoner were entitled to a fair process at the end of which he might be segregated as a punishment for up to 21 days, yet where there was insufficient evidence, he could be segregated for a much longer period, without procedural protection.
+The Court of Appeals decision to the contrary in Hague cannot be sustained.
+A prisoners right to make representations is largely valueless unless he knows the substance of the case being advanced in sufficient detail to enable him to respond.
+He must therefore normally be informed of the substance of the matters on the basis of which the authority of the Secretary of State is sought.
+That will not normally require the disclosure of the primary evidence on which the governors concerns are based: as I have explained, the Secretary of State is not determining what may or may not have happened, but is taking an operational decision concerning the management of risk.
+It is however important to understand that what is required is genuine and meaningful disclosure of the reasons why authorisation is sought.
+The reasons for continued segregation which were provided by the prison staff involved in the present cases gave, at best, only the most general idea of the nature of their concerns, and of why those concerns were held.
+More could and should have been said and was said, in the witness statements filed in these proceedings without endangering the legitimate interests which the prison authorities were concerned to protect.
+The imposition of prolonged periods of solitary confinement on the basis of what are, in substance, secret and unchallengeable allegations is, or should be, unacceptable.
+More specifically, in Bourgasss case, although some of the reasons given to him explained that his segregation was based on the assault on Sahebzadeh, the prison failed to provide any information as to why he was considered to have been involved in an assault which took place in his absence, despite being repeatedly asked to do so.
+The statement that he was to remain in segregation pending an investigation into a serious assault became particularly egregious when repeated after all investigations had ceased.
+Stating that segregation was pending CSC referral, or that we are trying to transfer you, provided no explanation related to rule 45.
+Stating that you are an unacceptable risk to other prisoners, that you are known as a threat to other prisoners, that your behaviour is deemed to be unsuitable for normal location, or that you would be a disruptive influence on normal location, told him nothing about the basis on which he was considered to present such a risk or threat or disruptive influence, or about the behaviour which was deemed unsuitable.
+Similar criticisms apply in Hussains case.
+He had been provided with information as to the basis on which he was believed to have assaulted another prisoner.
+It was not explained why, several months later, his suspected responsibility for that assault was still considered to require his segregation, not as a punishment, but for the maintenance of good order and discipline.
+It was only in the present proceedings that further allegations against him were disclosed, namely that he was suspected of having attempted to convert other segregated prisoners to Islam.
+Once that was disclosed, he was able to provide a response.
+It has to be recognised, however, that authority under rule 45(2) will often be sought on the basis of information which cannot be disclosed in full without placing at significant risk the safety of others or jeopardising prison security.
+Considerations of that kind were relevant in both of the present cases.
+There may also be cases where other overriding interests may be placed at risk.
+In such circumstances, fairness does not require the disclosure of information which could compromise the safety of an informant, the integrity of prison security or other overriding interests.
+It will be sufficient to inform the prisoner in more or less general terms of the gist of the reasons for seeking the authority of the Secretary of State.
+Judicial review and article 6.1
+On behalf of the appellants, it is submitted that decisions to authorise the continued segregation of a prisoner fall within the scope of article 6.1, with the consequence that the prisoner is entitled to a hearing before an independent and impartial tribunal.
+On behalf of the Secretary of State, on the other hand, it is submitted that article 6.1 has no application to decisions to keep a prisoner in segregation.
+The question is relevant to the scope of judicial review, since rule 45(2) requires authorisation to be given by the Secretary of State, who is not, of course, an independent and impartial tribunal.
+Where article 6.1 applies, and the initial decision maker is not an independent and impartial tribunal, then its decision must be subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of article 6.1 (Tsfayo v United Kingdom (2006) 48 EHRR 457, para 42).
+The only subsequent control exercised by a judicial body over the decisions of the Secretary of State is by way of judicial review.
+In its Tsfayo judgment, as in a number of others, the European Court held that judicial review did not meet the requirements of article 6.1 in that case, because the central issue was one of fact, and the High Court did not have jurisdiction to rehear the evidence or substitute its own views as to the applicants credibility (para 48).
+If some decisions under rule 45(2) are centrally concerned with disputed questions of fact, then there is accordingly a question whether the availability of judicial review is sufficient to secure compliance with article 6.1.
+There have been a number of cases in which the European Court of Human Rights has considered the application of article 6.1 in relation to court proceedings in which prisoners challenged restrictions on their activities.
+In this context, as in others, it has asked, first, whether there was a genuine and serious dispute over a right which can be said, at least on arguable grounds, to be recognised under domestic law, and secondly, whether the right in question was a civil one.
+In relation to the first question, most of the relevant cases have concerned restrictions on activities, such as visits, correspondence and telephone calls, in respect of which prisoners were explicitly recognised as possessing rights under the relevant legal systems.
+The earliest case appears to be Ganci v Italy (2003) 41 EHRR 272, where the applicants complaint concerned the failure of an Italian court to give a decision on his appeals against executive acts restricting his rights to visits and telephone calls: rights which were recognised under Italian law.
+The case of Glmez v Turkey (Application No 16330/02) given 20 May 2008, concerned prison disciplinary proceedings, and subsequent proceedings on appeal, which had resulted in a restriction on the applicants right to receive visits: a right recognised in Turkish law.
+In that case, the Second Section gave an affirmative answer to the first question (whether there was a dispute over a right recognised under domestic law) simply on the basis that the applicant had a right to challenge the disciplinary sanctions before the domestic courts.
+That reasoning was criticised by a minority of the court.
+The case of Enea v Italy (2009) 51 EHRR 103 was similar on its facts to Ganci, but was decided by a Grand Chamber.
+The court held, as in Ganci, that since the Italian court had failed to reach a decision on the applicants appeal against restrictions imposed on rights recognised under Italian law, it followed that the first question should be answered in the affirmative.
+In relation to the second question, some of the restrictions alleged by the applicant, such as rights restricting contact with his family and those affecting his pecuniary rights, fell within the sphere of personal rights and were therefore civil in character.
+The first case in which the court considered the imposition of segregation appears to have been Stegarescu v Portugal (Application No 46194/06) given 6 April 2010.
+Having recorded the Governments submission that the applicants had failed to identify any rights under domestic law which had been restricted, the Second Section noted that article 6.1 had been held in cases such as Ganci and Glmez to be engaged in relation to other restrictive measures imposed on prisoners.
+It then cited the passage in the Enea judgment dealing with the second question: a passage which proceeded on the basis that the existence of a dispute over a right recognised under domestic law had been established, and addressed the question whether the right was of a civil character.
+The Second Section noted that the placement of the applicants in segregation led to the restriction of visits, the restriction of exercise, and the impossibility, for one of the applicants, of continuing his studies and sitting exams.
+It concluded that in the eyes of the court these are restrictions on individual civil rights, and that article 6.1 was applicable.
+It did not refer to domestic law in support of its conclusion.
+The same approach has been adopted by the Second Section in more recent cases, such as Nusret Kaya v Turkey (Application Nos 43750/06, 43752/06, 32054/08, 37753/08 and 60915/08) given 22 April 2014, a case concerned with restrictions on prisoners telephone calls.
+The Second Section adopted a similar approach in Boulois v Luxembourg (Application No 37575/04) given 14 December 2010, a case concerned with release on licence.
+There was a vigorous dissent by a minority of the court.
+The decision of the majority in that case was relied on by Elias LJ, along with Stegarescu, in reaching the conclusion, contrary to the majority of the Court of Appeal, that article 6.1 applied in the present cases.
+The case of Boulois was however referred to the Grand Chamber, which reiterated that for article 6.1 in its civil limb to be applicable, there must be a dispute over a right which can be said, at least on arguable grounds, to be recognised under domestic law: (2012) 55 EHRR 941.
+The Grand Chamber added (para 91): The court may not create by way of interpretation of article 6(1) a substantive right which has no legal basis in the state concerned.
+The starting point must be the provisions of the relevant domestic law and their interpretation by the domestic courts.
+This court would need strong reasons to differ from the conclusions reached by the superior national courts by finding, contrary to their view, that there was arguably a right recognised by domestic law.
+The Grand Chamber also explained that Enea had concerned a restriction on the existing scope of rights (para 98).
+It emphasised the significance in that case of the judgment of the Italian Constitutional Court, recognising that domestic rights were involved.
+It concluded that prison leave was a privilege which might be granted, in relation to which the prison authorities were intended to enjoy a certain discretion.
+It followed that prisoners had no right to obtain it, even if they met the required criteria (para 99).
+There was a dissenting opinion by Judge Tulkens, who had presided over the Second Section in Glmez and Stegarescu and had sat in the Section in Boulois, and Judge Yudkivska.
+They argued that the term right in article 6.1 was an autonomous concept which should not be dependent on the classification adopted in domestic law, and that the reasoning in Stegarescu should be applied.
+That was clearly a minority view.
+It is notable that in the case of Stegarescu it was not the imposition of segregation itself which was considered to engage article 6.1, but consequential restrictions on visits, exercise and access to educational facilities.
+The same is true of the case of Marin Kostov v Bulgaria (Application No 13801/07) given 24 July 2012.
+That case was concerned with court proceedings in Bulgaria in which the applicant appealed against the imposition of solitary confinement as a punishment for offences against prison discipline.
+While in solitary confinement, his ordinary rights in relation to such matters as visits, telephone calls and parcels were suspended.
+The Fourth Section followed the orthodox approach to the scope of article 6.1, noting that the applicants solitary confinement entailed restrictions of a set of prisoners rights explicitly recognised by Bulgarian law.
+While the case law of the European Court does not speak entirely in unison on this issue, the prevailing and most authoritative view is therefore that the applicability of article 6.1 in this context depends, in the first place, on whether there is a dispute over a right recognised in domestic law.
+There are certain circumstances in which prolonged segregation may result in an arguable violation of a prisoners rights under English law which may then be the subject of a dispute: where, for example, the prisoner seeks damages for negligence resulting in injury to his mental or physical health, or seeks a remedy for a violation of his Convention rights under the Human Rights Act 1998.
+In circumstances such as these, where it is necessary to determine a dispute over a right recognised by English law, there is also a remedy before a court possessing jurisdiction to determine all aspects of the case, as required by article 6.1.
+Whether the authorisation of continued segregation involves the determination of any right recognised by English law is a different question.
+Counsel for the appellant founded on a line of authority concerned with prisoners access to the courts, to legal advice and to confidential correspondence with their solicitor.
+In that context, Lord Wilberforce said in Raymond v Honey [1983] 1 AC 1, 10 that a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication.
+One right which plainly is not retained, as Lord Bingham of Cornhill noted in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532, para 5, is the right of a person to move freely and choose his associates.
+The argument that the right to associate (and therefore the right to move freely for that purpose) survives imprisonment, in an attenuated form, was considered in Hague as part of a submission that a prisoner segregated in breach of the Prison Rules had a cause of action for false imprisonment, or alternatively for breach of statutory duty.
+The submission was rejected.
+The concept of a residual liberty retained by the prisoner was also rejected.
+Lord Bridge stated: The concept of the prisoners residual liberty as a species of freedom of movement within the prison enjoyed as a legal right which the prison authorities cannot lawfully restrain seems to me quite illusory.
+The prisoner is at all times lawfully restrained within closely defined bounds and if he is kept in a segregated cell, at a time when, if the rules had not been misapplied, he would be in the company of other prisoners in the workshop, at the dinner table or elsewhere, this is not the deprivation of his liberty of movement, which is the essence of the tort of false imprisonment, it is the substitution of one form of restraint for another. (p 163) Lord Jauncey also rejected the idea of a residual liberty, and added that, absent a deliberate abuse of power, in which event there would be a cause of action for misfeasance in public office, it followed that the prisoners only judicial recourse for segregation in breach of the Prison Rules was to the public law remedies applicable to administrative action (p 173).
+The other members of the House agreed.
+Article 6.1 is not, of course, confined to disputes arising under private law.
+Equally, not all administrative decisions fall within article 6.1.
+The availability of a remedy in public law to determine whether a public body has acted lawfully does not, therefore, imply that persons with standing to seek such a remedy are the possessors of a right for the purposes of article 6.1.
+As Lady Hale explained in R (A) v Croydon London Borough Council (Secretary of State for the Home Department intervening) [2009] UKSC 8; [2009] 1 WLR 2557, para 36 et seq, article 6(1) has been applied to cases where the determination of a public law question is also decisive of the existence of private law rights.
+It has also been applied to cases concerning rights in public law which are regarded as closely resembling rights in private law, such as rights to state benefits.
+In Ali v Birmingham City Council (Secretary of State for Communities and Local Government intervening) [2010] UKSC 8; [2010] 2 AC 39, the critical feature of cases in the latter category was identified as being that the benefits in question were the subject of precise definition and could therefore amount to an individual right of which the applicant could consider herself the holder.
+Those were distinguished from benefits which were, in their essence, dependent on the exercise of judgment by the relevant authority.
+That is consistent with the approach adopted by the Grand Chamber in Boulois.
+As was explained in Hague, a prisoner has no private law right to enjoy the company of other prisoners.
+Some degree of association is, of course, a normal feature of imprisonment; and rule 45 is based on that premise.
+Nevertheless, a prisoner does not possess any precisely defined entitlement to association as a matter of public law.
+The amount of time which he is permitted to spend outside his cell, and the degree of association which he is in consequence permitted to have with other prisoners, will depend on an assessment by the prison authorities of a variety of factors, such as the number and characteristics of the prisoners held in the prison, the number of staff on duty, security concerns, disturbances in the prison, and other contingencies such as industrial action by prison officers.
+The extent of association may therefore vary from one prison to another and from one day to the next.
+It is thus dependent upon the exercise of judgment by those responsible for the administration of the prison.
+That conclusion is not inconsistent with that exercise of judgment being subject to review on public law grounds.
+There is however no analogy with the circumstances in which article 6.1 has been applied to disputes arising in public law.
+I should add that although I am not persuaded that a decision to authorise continued segregation falls within the ambit of article 6.1, it appears to me that judicial review would in any event meet the requirements of that provision in this context.
+When the European Court stated in Tsfayo that article 6.1 requires that an administrative decision falling within its scope should be subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of article 6.1, the words full jurisdiction do not necessarily mean jurisdiction to re examine the merits of the case, but jurisdiction to deal with the case as the nature of the decision requires (R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23; [2003] 2 AC 295, para 87, per Lord Hoffmann).
+It is true that judicial review proceedings do not usually involve the determination of questions of fact, and therefore do not usually involve issues of credibility.
+But, as I have explained, decisions taken by the Secretary of State under rule 45(2) are unlikely to turn on the determination of disputed questions of fact.
+There may be underlying issues of fact which are contentious, as there were in the present cases, but, if rule 45 is being applied correctly, its application will not normally require the Secretary of State to resolve those issues one way or the other.
+The critical question is whether the prisoners continued segregation is justified having regard to all the relevant circumstances.
+Those will include the reasonableness of any apprehension that his continued association with other prisoners might lead to a breakdown in good order and discipline within the prison; the suitability of available alternatives; the potential consequences to the prisoner if authorisation is granted; and the potential consequences to others if it is not.
+The answer to the question requires the exercise of judgment, having regard to information and advice from a variety of sources, including the governor, health care professionals and the prisoner himself.
+In proceedings for judicial review, the court has full jurisdiction to review evaluative judgments of that kind, considering their reasonableness in the light of the material before the decision maker, whether the appropriate test has been applied, whether all relevant factors have been taken into account, and whether sufficient opportunity has been given to the prisoner to make representations.
+This court has explained that the test of unreasonableness has to be applied with sensitivity to the context, including the nature of any interests engaged and the gravity of any adverse effects on those interests: see, for example, Pham v Secretary of State for the Home Department (Open Society Justice Initiative intervening) [2015] UKSC 19; [2015] 1 WLR 1591.
+The potential consequences of prolonged segregation are so serious that a court will require a cogent justification before it is satisfied that the decision to authorise its continuation is reasonable.
+It should also be noted that although judicial review does not usually require the resolution of disputes of fact, or cross examination, that is not because they lie beyond the scope of the procedure.
+Judicial review is a sufficiently flexible form of procedure to enable the court to deal with the situation before it as required: see, for example, R (Wilkinson) v Broadmoor Special Hospital Authority [2001] EWCA Civ 1545; [2002] 1 WLR 419.
+Conclusion
+For these reasons I would allow the appeals, and grant a declaration in each case that the appellants segregation beyond the initial period of 72 hours was not authorised by the Secretary of State and was accordingly unlawful.
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+The issue is whether the United Kingdom is precluded, by Council Regulation (EC) No 1408/71 on the application of social security schemes to employed persons, self employed persons and members of their families moving within the Community (the Regulation), from imposing a requirement of residence in Great Britain as a condition of entitlement to disability living allowance (DLA) and thus depriving a claimant who has gone to live in another Member State of that benefit.
+DLA is a non contributory and non means tested benefit consisting of a care component and a mobility component.
+It is not an income replacement benefit, as the recipient may or may not be working.
+Its purpose is to cater for the extra costs of requiring certain types of care or being unable or virtually unable to walk.
+The facts
+The claimant, Mrs Tolley, a British national, was born on 17 April 1952.
+She had paid national insurance contributions from 1967 to 1984 and been credited with some contributions thereafter, but none since the year 1993/94.
+Depending on whether she fulfilled the contribution conditions when she reached state retirement age, therefore, she might have been entitled to a state retirement pension.
+From 26 July 1993, she was awarded the care component of DLA on an indefinite basis, because she was unable to prepare a cooked meal for herself.
+On 5 November 2002, she and her husband moved permanently to live in Spain.
+She was not employed or self employed there.
+In 2007, the Secretary of State for Work and Pensions decided that, as from 6 November 2002, she was not entitled to DLA.
+She appealed to the First tier Tribunal, which held that she was entitled to continue to receive DLA by virtue of article 10 of the Regulation.
+She died on 10 May 2011 and her husband was appointed to continue the proceedings in her place.
+The Secretary of State appealed to the Upper Tribunal, which also held that Mrs Tolley was entitled to the benefit, but for a different reason: [2012] UKUT 282 (AAC).
+Because she was insured against the risk of old age by virtue of her national insurance contributions, she was an employed person within the meaning of article 1(a) of the Regulation; that expression had the same meaning wherever it occurred in the Regulation; and the situation fell within article 22 of the Regulation.
+The Secretary of State appealed to the Court of Appeal, which dismissed the appeal, holding that it was bound by that courts previous decision in Commissioners for Her Majestys Revenue and Customs v Ruas [2010] EWCA Civ 291, applying Martinez Sala (Case C 85/96) [1998] ECR I 2708, to hold that Mrs Tolley was an employed person for this purpose: [2013] EWCA Civ 1471.
+The Secretary of State now appeals to the Supreme Court of the United Kingdom.
+Relevant domestic law
+Section 71(6) of the Social Security Contributions and Benefits Act 1992 (the 1992 Act) provides that A person shall not be entitled to a disability living allowance unless he satisfies prescribed conditions as to residence and presence in Great Britain.
+The conditions prescribed for this purpose by regulation 2(1) of the Social Security (Disability Living Allowance) Regulations 1991 (SI 1991/2890) are that (a) on that day (iii) he has been present in Great Britain for a period of, or for periods amounting in the aggregate to, not less than 104 weeks in the 156 weeks immediately preceding that day.
+It is, therefore, common ground that, under domestic law, Mrs Tolley was excluded from entitlement to DLA following her permanent move to Spain in November 2002.
+The question is whether that domestic law is compatible with the Regulation.
+European Union law
+Article 2.1 of the Regulation No 1408/71 provides that This Regulation shall apply to employed or self employed persons and to students who are or have been subject to the legislation of one or more member states and who are nationals of one of the member states .
+It is therefore common ground that Mrs Tolley falls within the personal scope of the Regulation.
+It is also common ground that DLA is one of the benefits falling within the material scope of the Regulation, as defined in article 4.
+Had it been categorised as an invalidity benefit within the meaning of article 4.1(b), it would have been covered by article 10.
+This precludes the withdrawal of such benefits by reason of the fact that the recipient resides in the territory of a member state other than that in which the institution responsible for payment is situated, in other words, it provides for full portability within the Union.
+However, in Commission v European Parliament (Case C 299/05) [2007] ECR I 08695, at para 68, following Molenaar (Case C 160/96) [1998] ECR I 843, para 25, and Jauch (Case C 215/99) [2001] ECR I 1901, para 25, the care component of DLA was categorised as a cash sickness benefit for the purpose of EU law.
+Nevertheless, in Da Silva Martins (Case C 388/09) [2011] ECR I 5761, para 48, the Court observed that benefits relating to the risk of reliance on care, unlike sickness benefits, were not intended to be paid on a short term basis and might, in the detail of their application, display characteristics resembling invalidity and old age benefits.
+This case is an example of the problems of applying provisions designed with short term benefits in mind to benefits which are capable of applying on a long term basis such as DLA.
+Article 13.1 lays down the general rule that persons to whom the Regulation applies shall be subject to the legislation of a single member state.
+Legislation is defined by article 1(j) in effect to mean all the legislation and other implementing measures of a member state relating to the branches and schemes of social security covered by article 4(1) and (2) or the special non contributory benefits covered by article 4(2a).
+Article 13(2) defines the member state to whose legislation a person is subject, generally the lex loci laboris rather than where the person lives.
+Article 13(2)(a) refers to a person employed rather than an employed person.
+Article 13.2(f) provides that: a person to whom the legislation of a member state ceases to be applicable, without the legislation of another member state becoming applicable to him in accordance with one of the rules laid down in the aforegoing sub paragraphs or in accordance with one of the exceptions or special provisions laid down in articles 14 to 17 shall be subject to the legislation of the member state in whose territory he resides in accordance with the provisions of that legislation alone.
+In Kuusijarvi (Case C 275/96) [1998] ECR I 3443, the court held that this did not preclude a member state from making the right to remain subject to its legislation of a person, who had ceased all occupational activity in its territory, dependent upon his continued residence there.
+The court observed that a person who has ceased all occupational activity in the territory of a member state no longer satisfies the conditions laid down in article 13(2)(a) (para 32).
+Article 89 provides that special procedures for implementing the legislations of certain member states are set out in annex VI.
+Points 19 and 20 of the United Kingdoms entry in annex VI relate to article 13(2)(f).
+Point 19 defines the date when UK legislation shall cease to apply for this purpose, so far as relevant, as the latest of (a) the day on which residence is transferred; (b) the day of cessation of employment or self employment, whether permanent or temporary, during which the person was subject to UK legislation; or (c) the last day of any period of receipt of UK sickness, maternity or unemployment benefit which began before the transfer of residence.
+Point 20 provides, so far as relevant, that the fact that a person has become subject to the legislation of another member state in accordance with article 13(2)(f) shall not prevent (a) the application to him by the United Kingdom as the competent state of the provisions relating to employed or self employed persons of Title III, Chapter 1 if he remains an employed or self employed person for those purposes and was last so insured under the legislation of the United Kingdom.
+Chapter 1 of Title III deals with the portability of sickness and maternity benefits.
+Article 19.1 provides that An employed or self employed person residing in the territory of a member state other than the competent state, who satisfies the conditions of the legislation of the competent state for entitlement to benefits, , shall receive in the state in which he is resident: (a) benefits in kind ; (b) cash benefits provided by the competent institution in accordance with the legislation which it administers.
+The Upper Tribunal held in this case that articles 19, 20, 21 and 22 contemplate different situations with no overlap between them.
+Article 19 did not apply to Mrs Tolley, because on closer scrutiny it covers only the situation of a person who works in one member state and lives in a different member state (para 84).
+Article 22.1 provides that An employed or self employed person who satisfies the conditions of the legislation of the competent state for entitlement to benefits, , and (b) who, having become entitled to benefits chargeable to the competent institution, is authorised by that institution to transfer his residence to the territory of another member state; shall be entitled (i) to benefits in kind (ii) to cash benefits provided by the competent institution in accordance with the provisions of the legislation which it administers.
+The Upper Tribunal held that article 22 did apply to Mrs Tolley.
+She was an employed person for the purposes of the Regulation; she had become entitled to cash sickness benefits under the legislation of the United Kingdom; and she had transferred her residence to another member state (para 86).
+Her ability to rely on article 22 could not be defeated when, had authorisation been sought, the circumstances did not fall within those where, under article 22.2, refusal is permitted (para 89).
+The definition of employed person is contained in article 1: For the purpose of this Regulation: (a) employed person and self employed person mean respectively: (i) any person who is insured, compulsorily or on an optional continued basis, for one or more of the contingencies covered by the branches of a social security scheme for employed or self employed persons ; (ii) any person who is compulsorily insured for one or more of the contingencies covered by the branches of social security dealt with in this Regulation under a social security scheme for all residents or for the whole working population, if such person: can be identified as an employed or self employed person by virtue of the manner in which such scheme is administered or financed, or failing such criteria, is insured for some other contingency specified in annex I under a scheme for employed or self employed persons either compulsorily or on an optional continued basis, or, where no such scheme exists in the Member State concerned, complies with the definition given in annex I;
+The applicable definition is that in article 1(a)(ii), because DLA is a scheme for all residents, whether or not they are employed or self employed.
+The United Kingdoms entry in annex I provides that Any person who is an employed earner or a self employed earner within the meaning of the legislation of Great Britain shall be regarded respectively as an employed person or a self employed person within the meaning of article 1(a)(ii) of the Regulation.
+Section 2(1) of the 1992 Act defines employed earner as a person who is gainfully employed in Great Britain either under a contract of service, or in an office (including elective office) with general earnings.
+This would not cover Mrs Tolley, who was not gainfully employed at the time.
+the Grand Chamber held that In Dodl and Oberhollenzer (Case C 543/03) [2005] ECR I 5065, para 34, a person has the status of an employed person within the meaning of Regulation No 1408/71 where he is covered, even if only in respect of a single risk, on a compulsory or optional basis, by a general or special social security scheme mentioned in article 1(a) of that Regulation, irrespective of the existence of an employment relationship.
+That case concerned Austrian women working in Austria but living in Germany with their German husbands who worked in Germany.
+They were on unpaid maternity leave and the issue was whether Germany or Austria was responsible for paying family benefits.
+The definition adopted by the Grand Chamber in Dodl was that in Martinez Sala (Case C 85/96) [1998] ECR I 2708, para 36, repeated in Kuusijarvi, para 21.
+Martinez Sala concerned a Spanish national living lawfully in Germany, who had previously been working there but was no longer employed or self employed.
+The issue was whether she was entitled to a German child raising allowance, a family benefit.
+Since her situation was not covered by any of the provisions of Title III, Chapter 7, relating to family benefits, the restriction in the German entry in annex I, did not apply.
+Hence her status as an employed person had to be judged solely on the basis of article 1(a)(ii), as defined above.
+It was for the referring court to decide whether this was established on the facts (para 45).
+If it was, then requiring her to produce a formal residence permit, which was not required of German nationals, was unequal treatment contrary to EU law (para 65).
+The definition adopted in Martinez Sala was itself derived from Pierik II (Case 182/78) [1979] ECR 1977, paras 4 and 7, where it was held that the status of worker for the purpose of article 22 was not restricted to active as opposed to inactive workers.
+The issue in that case was whether a person receiving an invalidity pension in the Netherlands was entitled to reclaim the cost of medical treatment in Germany.
+Such pensioners came within the provisions of the Regulation concerning workers, including article 22, by virtue of their insurance under a social security scheme, unless they are subject to special provisions laid down regarding them (para 4).
+The parties arguments
+In very brief summary, the Government does not challenge the classification of DLA as a sickness benefit (although we comment that it would not have had the same problems had it been classified as an invalidity benefit and thus freely exportable under article 10).
+Its concern is with the implications of collapsing the categories of employed and self employed persons, on the one hand, and unemployed persons, on the other hand, for the purpose, not only of sickness benefits generally, but also for maternity and family benefits (to which the same or similar rules apply).
+The Government argues that Mrs Tolley cannot be an employed person for the purpose of Chapter 1 of Title III just because she is insured against the risk of old age under UK legislation and thus falls within the interpretation of article 1(a)(ii) in Dodl, Martinez Sala and other cases.
+So to hold makes nonsense of the careful distinctions drawn in that Chapter between people who are employed or self employed and unemployed persons, covered by articles 19 to 22, whose rights to export sickness and maternity benefits are severely limited by article 25, read in combination with articles 69(1) and 71, dealing with the export of unemployment benefits.
+Chapter 7, dealing with family benefits, also makes special provision for persons who have become unemployed.
+The specific provisions in Title III are lex specialis overriding the general provisions in the Regulation.
+Martinez Sala was not concerned with the provisions about exportability of particular benefits but with the general EU principle of equality.
+The claimants in Dodl and in Borger were on maternity leave and Mrs Pierik was a pensioner.
+The cases did not, therefore, have to grapple with the issue arising in this case.
+Alternatively, a person such as Mrs Tolley falls within article 13(2)(f), because the legislation of the UK has ceased to be applicable to her, without the legislation of another member state becoming applicable under articles 13(2)(a) to (e), 14 to 17.
+In the light of Kuusijarvi, the UK is entitled to make her right to remain subject to its legislation dependent upon her continued residence here.
+Hence she is subject to the legislation of Spain, the member state in whose territory she now resides.
+Point 19 of annex VI does not apply because she was not entitled to receive the benefit once she moved to live in Spain.
+Point 20 does not apply because she is not an employed or self employed person for the purpose of Title III, Chapter 1.
+On behalf of Mrs Tolley, it is argued that Commission v Parliament, following earlier case law, rejected the argument that the care component of DLA is a non contributory cash benefit within article 4(2a), and thus not exportable at all.
+This shows that allowing persons such as Mrs Tolley to export their DLA is consistent with the policy of the Regulation.
+More importantly, Mrs Tolley clearly fell within the definition of an employed person in Martinez Sala and confirmed by the Grand Chamber in Dodl, because she was covered in respect of the risk of old age by the UK social security system.
+There cannot be different definitions for different purposes in the same Regulation.
+Article 25 is concerned with job seekers, that is, persons who are currently unemployed but moving abroad to look for work.
+It is designed to link the sickness benefit scheme with the unemployment benefit scheme.
+It is not concerned with people like Mrs Tolley, who are wholly economically inactive owing to long term disability.
+Article 13(2)(f) does not apply, because Mrs Tolley remains subject to the UK legislation by virtue of Points 19 and 20 of annex VI: either UK legislation has not ceased to apply within the meaning of Point 19, because she was still in receipt of a sickness benefit which began before she moved to Spain; or, if UK legislation had ceased to apply and therefore article 13(2)(f) did apply, by virtue of Point 20, the UK was not prevented from applying the provisions relating to employed or self employed persons in Title III, Chapter 1 to her.
+For that purpose, according to the case law cited above, she clearly was an employed person.
+Alternatively, reliance is placed on the opinion of Advocate General Jacobs in Kuusijarvi, at para 65: Article 22 of the Regulation, being designed to ensure that people retain their sickness benefit entitlement if they move their residence to another member state, would be entirely devoid of purpose if it could be defeated by a residence requirement in national law.
+Hence he concluded that the right to continued payment of benefits conferred by article 22 could not be defeated by a residence requirement imposed by national legislation.
+It follows that the national legislation had not ceased to apply for the purpose of article 13(2)(f).
+The Court did not deal with the applicability of article 22 in the circumstances of that case, because it held that the benefit in question was a family, and not a sickness, benefit.
+The Supreme Courts view
+In this courts view, although the matter was not argued before us, the principled solution to a case such as this would be to treat the care component of DLA as an invalidity benefit for the purpose of the Regulation, and thus freely exportable under article 10, leaving the detailed provisions of Chapter 1 of Title III to deal with sickness benefits stricto sensu.
+Then none of the current issues would have arisen: see Stewart (Case C 503/09) [2012] 1 CMLR 337.
+The broad characteristic of the benefits listed in article 10 is that they are long term or one off payments in respect of permanent conditions, such as disability, old age or death, rather than short term benefits in respect of potentially temporary conditions, such as sickness, maternity or unemployment.
+Income replacement cannot be an essential feature of an invalidity benefit, because they include those intended for the maintenance or improvement of earning capacity (article 4(1)(b)).
+However, if DLA remains to be treated as a sickness benefit, the court agrees with the Government that none of the cases relied upon by Mrs Tolley and the English courts was concerned with whether, in the light of the specific provisions of Title III relating to unemployed persons, the broad definition in Dodl could apply to the provisions relating to employed persons.
+It might be thought surprising if people who are wholly economically inactive were treated more favourably than people who are actively seeking work in a Regulation which is designed to facilitate the free movement of workers.
+Logically, article 13(2)(f) comes before articles 19 to 22.
+Mrs Tolley ceased to be subject to the legislation of the United Kingdom concerning DLA, because she was no longer resident here.
+On the other hand, she remained subject to the legislation of the UK for the purposes of any potential entitlement to a state retirement pension.
+So when article 13(2)(f) speaks of the legislation of a member state ceasing to be applicable, does it mean all that legislation, or (notwithstanding the definition in article 1(j)) only the legislation relating to the particular benefit in question? If the latter, how are Points 19 and 20 of annex VI to be interpreted? In particular, does Point 19(c) refer to actual receipt of or to entitlement to DLA? And does Point 20 merely permit, as opposed to require, the UK to continue paying DLA in accordance with Chapter 1 of Title III?
+The questions referred
+1. Is the care component of the United Kingdoms Disability Living Allowance properly classified as an invalidity rather than a cash sickness benefit for the purpose of Regulation No 1408/71? 2. (i) Does a person who ceases to be entitled to UK Disability Living Allowance as a matter of UK domestic law, because she has moved to live in another member state, and who has ceased all occupational activity before such move, but remains insured against old age under the UK social security system, cease to be subject to the legislation of the UK for the purpose of article 13(2)(f) of Regulation No 1408/71? (ii) Does such a person in any event remain subject to the legislation of the UK in the light of Point 19(c) of the United Kingdoms annex VI to the Regulation? (iii) If she has ceased to be subject to the legislation of the UK within the meaning of article 13(2)(f), is the UK obliged or merely permitted by virtue of Point 20 of annex VI to apply the provisions of Chapter 1 of Title III to the Regulation to her? (i) Does the broad definition of an employed person in Dodl apply for 3. the purposes of articles 19 to 22 of the Regulation, where the person has ceased all occupational activity before moving to another member state, notwithstanding the distinction drawn in Chapter 1 of Title III between, on the one hand, employed and self employed persons and, on the other hand, unemployed persons? (ii) If it does apply, is such a person entitled to export the benefit by virtue of either article 19 or article 22? Does article 22(1)(b) operate to prevent a claimants entitlement to the care component of DLA being defeated by a residence requirement imposed by national legislation on a transfer of residence to another member state? Hence we refer the following questions to the CJEU:
diff --git a/UK-Abs/train-data/judgement/uksc-2014-0026.txt b/UK-Abs/train-data/judgement/uksc-2014-0026.txt
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+This is an application for directions in a pending appeal for which permission was granted by this court on 25 March 2014.
+The appeal arises out of a transaction by which Mr Richard Gabriel, the claimant in the proceedings below, lent 200,000 to a company called Whiteshore Associates Ltd. The courts below have found that his solicitors, BPE Solicitors, were negligent in their handling of the transaction.
+For present purposes, all that need be said about the issues is that they relate mainly to damages.
+The trial judge awarded the full amount that Mr Gabriel would have recovered under the facility agreement if Whiteshore had been good for the money.
+The Court of Appeal held that this loss was not within the scope of the solicitors duty.
+They accordingly reduced the award to a nominal 2.
+They also held, in the alternative, that even if substantive damages had been awarded, they would have been reduced by 75% on account of Mr Gabriels contributory negligence.
+The trial judge awarded the costs of the claim up to the conclusion of the trial to Mr Gabriel.
+The Court of Appeal set aside the judges costs order and ordered Mr Gabriel to pay BPEs costs of the proceedings up to and including the appeal.
+The costs claimed by BPE under this head amount to 469,170.60.
+The Court of Appeals order was pronounced on 22 November 2013.
+On 5 March 2014, Mr Gabriel was made bankrupt on his own petition by order of the Gloucester and Cheltenham County Court.
+On 25 March 2014, Mr Hughes Holland was appointed as his trustee in bankruptcy.
+As a result, the right to pursue the appeal vests in the trustee.
+Mr Hughes Holland has not yet decided whether to pursue it.
+The reason is the uncertainty, on the current state of the authorities, about the extent of his potential liability for costs if the appeal fails.
+The ordinary rule is that a trustee in bankruptcy is treated as party to any legal proceedings which he commences or adopts, and is personally liable for any costs which may be awarded to the other side, subject to a right of indemnity against the insolvent estate to the full extent of the assets.
+Accordingly, Mr Hughes Holland accepts that he is personally at risk for BPEs costs of the appeal to the Supreme Court.
+But he contends that he is not personally at risk by virtue of having adopted the appeal as trustee in bankruptcy for BPEs costs of the proceedings below in the event that the Court of Appeals order against Mr Gabriel should be affirmed.
+The italicised words are important.
+The present application is not concerned with costs that may be awarded against the trustee on any other ground.
+I shall return to this point below.
+The answer to this question has significant implications for the trustees decision whether to adopt the current appeal.
+The evidence is that if the appeal is not pursued, unsecured creditors are likely to receive a modest dividend of between about 3p and 5p in the pound.
+If it is pursued and succeeds, that figure is expected to rise to between 23p and 25p in the pound.
+But if it is pursued and fails, the impact on creditors will depend on whether in that event the trustee would be personally liable only for the costs of the appeal, or for the costs of the proceedings below as well.
+If the trustees liability for BPEs costs is limited to the costs of the appeal to this court, the dividend available to creditors will be reduced, subject to ATE insurance.
+But if the trustees liability for costs extends to the costs below as well, they will exceed the entire assets of the estate.
+The creditors will receive no dividend and the trustee will be personally exposed for the balance subject to any indemnity which he is able to obtain from the creditors.
+It is far from clear that such an indemnity will be forthcoming.
+The largest creditor, accounting for about 60% by value of claims, is the Nautilus Trust, a discretionary settlement in which Mr Gabriel has a life interest.
+The evidence is that it has few assets other than debts owed to it by Mr Gabriel.
+In these circumstances, we were not surprised to learn from Mr Chichester Clark, for the trustee, that if he is potentially liable for BPEs costs below, the appeal is unlikely to be pursued.
+Jurisdiction
+Mr Stewart QC, who appears for BPE, raises a preliminary issue about this courts jurisdiction to deal with this application.
+He submits that we have no jurisdiction to deal with the incidence of costs except (i) as a condition imposed at the time of granting permission to appeal, or (ii) as part of the ultimate disposition of the appeal.
+This point is in my view misconceived.
+Section 40(5) of the Constitutional Reform Act 2005 confers on this court the power to determine any question necessary to be determined for the purposes of doing justice in an appeal to it under any enactment.
+The Supreme Court Rules 2009 (SI 2009/1603 (L17)) provide: Orders for costs 46. (1) The court may make such orders as it considers just in respect of the costs of any appeal, application for permission to appeal, or other application to or proceeding before the court. (2) The courts powers to make orders for costs may be exercised either at the final determination of an appeal or application for permission to appeal or in the course of the proceedings.
+The question which the trustee wishes to have decided is not among the substantive issues on the appeal, but it is a question which will have to be decided at some stage of the proceedings if the court is to perform its duty to determine the incidence of costs.
+If an order for costs may be made at any stage of the proceedings, it is clear that a decision on a question of principle arising in relation to costs may be made at any stage.
+This court would not normally decide an issue going to costs before the hearing of the substantive appeal.
+But that is because it is not normally just or even practical to do so.
+In the present case there is every reason for ruling on the trustees potential liability now, and no reason for deferring it until after judgment.
+In the first place, the ruling which is presently sought is necessary in order to enable the trustee and the creditors to make an informed decision about whether to proceed with the appeal.
+A decision on the point after judgment will be of no use to them for that purpose.
+There is no interest of justice and no public interest which would be served by requiring the trustee and the creditors to make their decision in ignorance of the true position.
+Secondly, the trustees application is, as I have pointed out, limited to the question whether a liability for BPEs costs below would follow as a matter of law from his adoption of the appeal.
+There are no discretionary considerations involved.
+In particular, nothing that we decide now (or indeed after judgment) will affect any issue which may arise about the propriety of any decision of the trustee to pursue the appeal, which is a matter for the High Court.
+This court is therefore in as good a position to deal with the matter now as it would be at any other time.
+The question of principle
+A trustee in bankruptcy, unlike the liquidator of a company, is personally a party to legal proceedings which he has adopted.
+The reason is that the assets of the bankrupt at the time of the commencement of the bankruptcy vest in him personally, and the bankrupt has no further interest in them.
+The rule, which dates back to the beginning of bankruptcy jurisdiction in England, is currently embodied in section 306 of the Insolvency Act 1986.
+The trustees position differs in this respect from that of a liquidator, for although a liquidator is a trustee for the proper administration and distribution of the estate, the assets remain vested in the company and proceedings are brought by or against the company.
+It follows that with the exception of a limited (and for present purposes irrelevant) class of purely personal actions, a bankrupt claimant has no further interest in the cause of action asserted in the proceedings.
+Likewise, as Hoffmann LJ observed in Heath v Tang [1993] 1 WLR 1421, 1424, where the bankrupt is the defendant, he has no further interest in the defence, because the only assets out of which the claim can be satisfied will have vested in the trustee.
+None of this means that the trustee is bound to adopt the action.
+If the trustee does not adopt it, the action cannot proceed and will be stayed or dismissed if the bankrupt is the claimant: Heath v Tang [1993] 1 WLR 1421.
+If the bankrupt is the defendant, an action which the trustee does not adopt is liable to be stayed under section 285(1) and (2) of the Insolvency Act 1986.
+If, however, the trustee does adopt the action, he becomes the relevant party in place of the bankrupt.
+In the ordinary course, he will be substituted for the bankrupt under what is now CPR 19.2.
+But it is well established that he will be treated as the party if he has in fact adopted the proceedings by conducting the litigation, even if there has been no formal substitution: Trustee of the Property of Vickery (a bankrupt) v Modern Security Systems Ltd [1998] 1 BCLC 428.
+It follows that an order for costs in favour of the other side is made against the trustee personally in the same way as it would be made against any other unsuccessful litigant.
+The cost of satisfying the order is treated as an expense of performing his office, for which he assumes personal liability just as he does for any other expenses and liabilities incurred in the administration and distribution of the estate, but subject to a right of indemnity against the assets if the expenses and liabilities were properly incurred.
+These principles are easy enough to apply in a case where substantially all the costs of the other side were incurred at a time when the litigation was being conducted by the trustee.
+But what is to happen if the proceedings were begun by or against a litigant who subsequently became bankrupt, and part of those costs was incurred by the other side before bankruptcy supervened?
+The only authority which deals directly with this question is Borneman v Wilson (1884) 28 Ch D 53, in which the Court of Appeal extended the personal liability of the trustee to cover costs incurred by the other side before his adoption of the proceedings.
+The facts were that the Wilsons, father and son, had acted as commercial agents of one Borneman.
+He began an action against them in the Chancery Division for an account of their dealings with his goods and obtained interlocutory relief on motion including an injunction and the appointment of a receiver.
+The Wilsons served a notice of appeal, but shortly afterwards a bankruptcy order was made against them.
+On 7 October 1884, a trustee in bankruptcy was appointed.
+On 18 October, the trustee was substituted as a defendant, apparently ex parte on the application of Borneman.
+On 31 October, he gave notice abandoning the appeal.
+He then entered an appearance in the substantive proceedings and called for a statement of claim.
+Borneman applied for an order against the trustee requiring him to pay the costs of the appeal which he had incurred before receipt of the notice of abandonment.
+The Court of Appeal (Bowen and Fry LJJ) made that order.
+Their reason was that notwithstanding the trustees prompt and express abandonment of the appeal, by appearing and calling for a statement of claim in the Chancery proceedings he had adopted the action, and that meant the entire action including the appeal.
+The trustee, said Bowen LJ, cannot adopt part of the action and leave out the rest.
+Fry LJ agreed.
+The trustee, he said, had put himself into the place of the bankrupt as regards the action and cannot take one part of it and reject another.
+On the face of it, Borneman v Wilson is authority for the proposition that the proceedings must as a matter of law be adopted either in their entirety (including any discrete prior proceedings conducted by the bankrupt before his appointment), or not at all.
+The decision has not subsequently been applied in any reported case, although it was treated as correct by a strong Court of Appeal (Lord Esher MR and Lopes and Kay LLJJ) in School Board for London v Wall Brothers (1891) 8 Morr 202 and by Sir John Vinelott in Trustee of the Property of Vickery (a bankrupt) v Modern Security Systems, supra, at 434.
+However, in my opinion it is no longer good law.
+The Court of Appeals rather cursory judgments give no reason for its all or nothing approach to the adoption of current legal proceedings.
+But their conclusion is nevertheless understandable in the light of the law as it then was, or at least as it was thought to be.
+At the time when Borneman v Wilson was decided, an order for costs could be made only against a party to the proceedings.
+The modern jurisdiction to make an order for costs against a non party is conferred by section 51(3) of the Senior Courts Act 1981, which dates back to section 5 of the Supreme Court of Judicature Act 1890.
+Even after 1890 the existence of the power was not recognised by the courts until the decision of the House of Lords in Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 965.
+It followed that once a party to subsisting legal proceedings had become bankrupt and the trustee had been substituted for him, there was no possibility of obtaining an order for costs against the bankrupt himself.
+Moreover, even if such an order had been possible (for example, because no formal substitution had occurred), it would have been pointless because a liability arising from a costs order made after the commencement of the bankruptcy would not have been provable against the estate.
+Although debts which were contingent at the commencement of the bankruptcy had in principle been provable since the Bankruptcy Act 1869, it was considered that the discretionary character of a costs order meant that it was not even a contingent liability until the order had actually been made: see In re Bluck, Ex p Bluck (1887) 57 LT 419, In re British Gold Fields of West Africa [1899] 2 Ch 7, In re A Debtor (No 68 of 1911) [1911] 2 KB 652, In re Pitchford [1924] 2 Ch 260, Glenister v Rowe [2000] Ch 76.
+These cases were overruled in In re Nortel GmbH (in administration); In re Lehman Brothers International (Europe) (in administration) [2014] AC 209: see paras 87 93 (Lord Neuberger), and 136 (Lord Sumption).
+This court held in that case that by participating in litigation, a party submitted himself to a liability to pay costs in accordance with rules of court, contingently upon an order for costs being made against him.
+It followed that where proceedings were begun by or against a company before it went into liquidation, a liability for costs under an order made after it went into liquidation was provable as a contingent debt.
+The position is the same in bankruptcy.
+Against this background, it is easy to understand why late Victorian judges should have been unwilling to allow the trustee to adopt an action for his own account without assuming the liabilities for what had gone before.
+The result would have been to allow the action to proceed while leaving the other side with no remedy in costs in respect of earlier stages of the proceedings, irrespective of the outcome.
+Freed of the baggage of earlier misconceptions, however, it is possible to revisit the issue as a matter of principle.
+Where an action in progress at the time of the trustees appointment is adopted by the trustee, one issue now open for reconsideration is whether there is any reason in principle why the trustee should necessarily be required, simply by virtue of his adoption of the action, to pay the other sides costs of legal proceedings including those incurred at a time when he was not a party and the action was being conducted by the bankrupt for his own account.
+Although this issue was not as such addressed by the parties submissions, I think that there can no longer be any absolute rule to that effect.
+The most that can be said is that it may be appropriate as a matter of discretion to make such an order.
+The trustee will have conducted the action for the benefit of the estate.
+The expenditure of costs on both sides will have been directed to achieving the desired outcome, and it may well be reasonable for that outcome to determine the incidence of costs whether they were expended before or after the trustees adoption of the action.
+Equally, it will be for the court, in the exercise of its discretion, to decide whether a non party order should be made against the bankrupt himself in respect of some part of the costs incurred while he was conducting the litigation before bankruptcy supervened.
+If this was the issue in the present case, it could not be right to pre empt the discretion in advance on an application like this one.
+But it is not the issue in the present case, because a trial and the successive appeals from the order made at trial are distinct proceedings for the purposes of costs, albeit distinct proceedings in the same action.
+A distinct order for costs will be made in respect of each of them.
+Costs incurred in generating material for the trial will be recoverable, if at all, under the costs order made in respect of the trial.
+It will not be recoverable as part of the costs of a subsequent appeal even if the material is reused on the appeal: Wright v Bennett [1948] 1 KB 601 (CA).
+Mr Gabriel was responsible for the entire conduct of the trial and the appeal to the Court of Appeal.
+The Court of Appeal has disposed of that appeal, and has ordered Mr Gabriel to pay BPEs costs at both stages.
+All of this happened before Mr Gabriel became bankrupt.
+His liability under the costs order of the Court of Appeal is a provable debt.
+Indeed, a proof has been lodged.
+If this court were in due course to dismiss the appeal, it would normally make no order of its own in relation to the costs below other than to affirm (or possibly to vary) the order which had already been made by the Court of Appeal.
+That order would continue to represent a liability of Mr Gabriel and not of the trustee.
+The mere fact that the trustee has adopted the appeal could not possibly justify this court in ordering the trustee to pay the costs which the Court of Appeal has ordered to be paid by Mr Gabriel.
+The trustee is entitled to adopt the appeal to this court without adopting the distinct proceedings below.
+Indeed, the adoption of proceedings below would be contrary to principle.
+In a case where the proceedings below had been conducted to their conclusion before the bankruptcy by the bankrupt himself, to order the trustee to pay them personally would in effect enable BPE to obtain an unwarranted priority for its claim under the Court of Appeals costs order.
+The trustee would recover an indemnity from the estate in respect of a provable debt to the full extent of the assets before any distribution fell to be made to other creditors.
+I would expect the result to be the same if the bankrupt had succeeded in the courts below and failed in this court, so that an order for costs in respect of the proceedings below was made in favour of the other side for the first time in this court.
+It is difficult to see any principled distinction between the two situations.
+But the position would be procedurally more complicated, because it would involve making a non party order against the bankrupt so that the resultant liability could be proved against the estate as a contingent debt.
+For that reason other questions may arise which are best left to a case where they are relevant.
+I would declare that in the event that the Trustee adopts the appeal to the Supreme Court he will not be held personally liable for any costs incurred by the respondent in relation to this action up to and including the order of the Court of Appeal dated 22 November 2013, by virtue only of the fact of his office as Trustee of Mr Gabriels estate in bankruptcy or of his adoption of the appeal.
diff --git a/UK-Abs/train-data/judgement/uksc-2014-0028.txt b/UK-Abs/train-data/judgement/uksc-2014-0028.txt
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+The appellant (Mr Youssef), an Egyptian national, has been living in this country since 1994.
+He challenges a decision made by the respondent Secretary of State on 14 September 2005, in his capacity as a member of the committee of the United Nations Security Council, known as the Resolution 1267 Committee or Sanctions Committee.
+The committee is responsible for maintaining a list of persons and entities subject to the asset freeze imposed on persons associated with Al Qaida under Chapter VII of the United Nations Charter.
+The committee acts by consensus: all members must agree to a nomination for inclusion on the list, or to de listing.
+The United Nations sanctions regime, and the constitution of the committee, are described in more detail in the judgment under appeal of Laws LJ in the Court of Appeal, as is the drastic effect of listing on the individuals concerned: [2013] EWCA Civ 1302; [2014] QB 728, paras 3 12.
+The decision under challenge removed the hold which the United Kingdom had previously placed on the appellants designation by the committee.
+It had the consequence that thereafter he became subject to the asset freeze imposed by virtue of the Charter and of implementing European and national legislation.
+The appellants first contention is that, although the Secretary of State made his own decision on untainted evidence, he was aware that information on which other members were proceeding was or might have been obtained by torture; and that accordingly he was under an obligation, enforceable in domestic law, not to lend his aid to a committee decision which might be so tainted.
+The appellants case, with others, came before this court in earlier judicial review proceedings in Ahmed v HM Treasury [2010] UKSC 2; [2010] 2 AC 534 (to which I will return below).
+They related to an implementing order in this country made under section 1 of the United Nations Act 1946.
+The court held that the order was outside the powers conferred by the Act.
+However, that decision left in place Council Regulation (EC) No 881/2002, which implemented the asset freeze under European law, and had direct effect in the United Kingdom under the European Communities Act 1972.
+Although this court declined to suspend its order to enable new regulations to be made under that Act ([2010] UKSC 5; [2010] 2 AC at p 689), such provisions, including the related licensing provisions and criminal sanctions, were made soon afterwards, in effect reproducing the controls previously imposed under the 1946 Act (Al Qaida and Taliban (Asset Freezing) Regulations 2010 (SI 2010/1197), since superseded by 2011 Regulations (SI 2011/2742) to similar effect).
+In evidence in the Ahmed proceedings it was disclosed that, following a review of the information then available, the government had decided that the appellant no longer met the criteria for designation.
+From June 2009 until late 2012 the Secretary of State actively supported his removal from the Sanctions Committees Consolidated List, and attempted to persuade other members to agree, but without success.
+The appellant complains of the Secretary of States failure at that stage to extend his grounds for seeking delisting to include the tainted nature of the evidence apparently relied on by other members.
+Findings of the United Nations Ombudsperson
+Meanwhile (by Resolution 1904 of 2009) the Security Council had established the new office of Ombudsperson, inter alia, to assist the committee in considering and responding to requests for delisting.
+The appointment of the first Ombudsperson (Judge Kimberly Prost) and her understanding of this new role were described by Laws LJ in the Court of Appeal (para 8).
+In April 2013 the appellant applied to the Ombudsperson requesting delisting.
+Her report to the committee, submitted in February 2014, recommended that he be retained on the list.
+On 30 July 2014 she wrote to the appellant informing him of her recommendation and the reasons for it.
+Her letter indicated that she had excluded from her analysis material tainted by torture (p 4).
+It reviewed a number of public statements attributed to the appellant between 2011 and 2013.
+It is sufficient to refer, as an example, to the most recent: a sermon given in May 2013, in which he offered extensive praise of Usama bin Laden, labelled certain Al Qaida linked groups as the fruits of this Martyr [Bin Laden] and his good devout brethren, and asserted that America will crumble thanks to those Mujahids and by virtue of this Martyr.
+The Ombudsperson commented that such repeated statements clearly glorify Usama Bin Laden and the Al Qaida organisation for its various activities in different locations, and could be categorised as an exhortation to others to join in the continued expansion of the organisation in its aims, which includes the destruction of America (p 9).
+On 10 September 2014 the Secretary of State informed the appellant that he agreed with the Ombudspersons recommendation and would no longer support delisting.
+On 30 October 2014 the committees narrative summary of reasons for listing was updated to take account of the Ombudspersons findings.
+The revised summary includes the following: [The appellant] is a known figure within extremist circles.
+He uses an Internet site, and other media, to support terrorist acts or activities undertaken by Al Qaida as well as to maintain contact with a number of supporters around the world.
+He offers praise for Al Qaida as an organisation and, directly or by inference, encourages individuals to join and support that organisation and its activities on a global basis.
+As of early 2014, [the appellant] provided Al Qaida and Al Nusrah Front for the People of the Levant (QE.A.137.14) with guidance and justification for their operations and tactics.
+The court has no evidence from the appellant to counter the allegations on which the 1267 committee now relies.
+In his only witness statement in these proceedings, dating from 3 December 2010, he simply rejected (without further explanation) the notion that he is in any way involved in terrorism, or linked in any way to Al Qaida or the Taliban.
+The court was told that he intends to challenge the Secretary of States recent decision not to support delisting, but not on what grounds.
+It has been agreed between the parties that further action will await the decision of the court in this appeal, at which point the Secretary of State will reconsider his decision so far as necessary in the light of this courts findings and of any representations made by the appellant.
+Immigration
+The appellants immigration status is not in issue in these proceedings.
+He claimed asylum on arrival in 1994, but that claim was rejected under article 1F(c) of the Refugee Convention (serious reasons for considering that he has been guilty of acts contrary to the purposes and principles of the United Nations).
+Since October 1999 he has remained under a series of grants of discretionary leave to remain.
+An appeal against refusal of asylum under article 1F(c) is currently pending before the Upper Tribunal.
+Consideration of his application for indefinite leave to remain has been deferred by the Home Office pending a final decision on his asylum application.
+European proceedings
+Decisions of the European Court of Justice in Kadi v Council of the European Union (Joined Cases C 402/05P and C 415/05P), [2009] AC 1225 (Kadi I), and of the General Court in Kadi v Commission of the European Communities (Council of the European Union intervening) (Case T 85/09) [2010] ECR II 5177 (Kadi II) established that inclusion of an individual within a list under EC Regulation 881/2002 (regulation 881) was subject to judicial review in Europe, inter alia on grounds relating to the accuracy and reliability of the evidence relied on (Kadi II paras 141 143).
+Regulation 881 was amended by Council Regulation (EU) No 1286/2009 to create a mechanism for review by the Commission (articles 7(a) and 7(c)).
+In July 2010 the appellant applied to the General Court of the European Union for removal from the list in regulation 881.
+In a decision given on 21 March 2014 (Case T 306/10) the court held that the Commission had failed to review his inclusion under the required procedures, but it dismissed his claim that his retention on the list was irrational.
+On 17 December 2014 the European Commission sent to the appellant an updated statement of reasons for listing under regulation 881 in the same terms as the 1267 committees summary.
+The appellant responded on 26 January 2015 denying those allegations.
+He has lodged an application for legal aid with the EU General Court to enable him to challenge the decision to continue his listing under the regulation.
+The present proceedings and the issues in the appeal
+The present claim for judicial review was issued in December 2010.
+It challenged the legality both of the Secretary of States decision in 2005 to lift his hold on designation, and also of his refusal, in a letter of 14 October 2010, to extend his request for delisting to include the ground that the committees decision had been based on torture tainted evidence.
+The claim was dismissed by the Divisional Court in July 2012, and by the Court of Appeal in October 2013.
+Permission to appeal to this court was granted on 9 July 2014.
+The appeal raises issues about the tests to be applied in judging the legality of the relevant decision, and about their consequences under domestic law.
+It also raises issues about the remedies if any to which the appellant should be entitled, if otherwise successful, having regard in particular to the developments since the Court of Appeal decision.
+Mr Otty QC summarised his submissions on behalf of the appellant under four main heads: i) Torture tainted material The exceptional status accorded to the prohibition against torture, under international and domestic law, required the Secretary of State not merely himself to make no use of torture tainted evidence, but to forego participation in a decision which might be affected by such evidence. ii) Absence of power The intended and inevitable effect of the committees decision was a serious interference with the appellants right to peaceful enjoyment of his property.
+That could only be achieved by a clear statutory provision or common law rule, neither of which existed. iii) Standard of proof The test of reasonable grounds to suspect that the appellant met the criteria for designation as having been associated with Al Qaida through his participating in the financing, planning, facilitating, preparing or perpetrating of acts or activity in conjunction with, under the name of or on behalf of Al Qaida adopted by the Secretary of State was too low, as shown by the reasoning of this court in Ahmed. iv) Standard of review Given the gravity of the context, the courts below were wrong to limit the standard of review to that of Wednesbury unreasonableness or irrationality.
+Following the more recent guidance of this court in Kennedy v Information Comr (Secretary of State for Justice intervening) [2014] UKSC 20, [2015] AC 455 and Pham v Secretary of State for the Home Department (Open Society Justice Initiative intervening) [2015] UKSC 19, [2015] 1 WLR 1591, the appellant was entitled to a full merits review, or at least one involving a proportionality analysis.
+It will be convenient to take them in this order, expanding the account of law and facts so far as necessary under each head.
+Torture tainted material
+Background
+The factual background to this issue, so far as not already explained, is uncontentious.
+On 29 March 2005 a designating state (now known to have been Egypt) requested the committee to add 20 individuals, including the appellant, to the UN sanctions list.
+The information submitted in support relied on his conviction in Egypt in absentia for membership of a terrorist group.
+This information, as the Secretary of State knew, included evidence that had been or may have been obtained by torture.
+However, the Secretary of States decision on 14 September 2005 to agree to his designation was not based on this information but on a separate Security Service assessment.
+This referred to his previous links with a terrorist group known as Egyptian Islamic Jihad (EIJ), his arrest in 1998 in connection with a planned bomb attack on the US embassy in Tirana, and his views which remained extreme.
+The assessment was that he had had strong historical links to EIJ in the mid to late 1990s and that the potential remains for him to re engage with EIJ.
+Under the guidelines in effect in 2005 the committee was not required to make a statement of the reasons for its decision.
+However, under later guidelines (first introduced in June 2008 by SCR 1822), it was required to publish on its website a narrative summary of reasons for listing.
+Such a summary in respect of the appellant was published in September 2010.
+This referred to him being wanted in Egypt in connection with terrorist crimes committed in that country.
+The appellant asserts (without specific contradiction by the Secretary of State) that these allegations were the result of torture of his co accused.
+As already noted, by this time, the Secretary of State had formed the view on other grounds that the listing was no longer justified.
+The Security Service assessment on which this was based (May 2009), included the following: We assess that were [the appellant] to be removed from the Consolidated List he would be unlikely to re engage with EIJ.
+Although [the appellant] continues to maintain his extremist views, he appears very reluctant to be directly involved in terrorist activities.
+Legal principles and the courts below
+For the legal principles governing the use of evidence obtained by torture we need look no further than the opinions given in the House of Lords in A v Secretary of State for the Home Department (No 2) [2005] UKHL 71; [2006] 2 AC 221, notably that of Lord Bingham which contains an extensive review of the international materials (paras 30ff).
+Having quoted from the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, he noted as common ground that the international prohibition of the use of torture enjoys the enhanced status of a jus cogens or peremptory norm of general international law.
+He quoted at length from the authoritative exposition by the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v Furundzija (1998) 38 ILM 317 (10 December 1998), including this statement of the obligations of states, both individually and collectively: 151.
+Furthermore, the prohibition of torture imposes upon states obligations erga omnes, that is, obligations owed towards all the other members of the international community, each of which then has a correlative right.
+In addition, the violation of such an obligation simultaneously constitutes a breach of the correlative right of all members of the international community and gives rise to a claim for compliance accruing to each and every member, which then has the right to insist on fulfilment of the obligation or in any case to call for the breach to be discontinued.
+Lord Bingham interpreted these extracts as indicating the requirement on states both to eschew the practice of torture and to cooperate to bring to an end through lawful means any serious breach of an obligation under a peremptory norm of general international law.
+The same principles required states save perhaps in limited and exceptional circumstances to reject the fruits of torture (para 34).
+Similarly article 15 of the Torture Convention prohibited the use of any statement which is established to have been made as a result of torture (para 35), a principle recognised also in the European Convention on Human Rights and in the common law (para 52).
+The Court of Appeal held that the Secretary of State was responsible for the lawfulness of his own reasons, but not in effect for policing the reasoning of other member states.
+Laws LJ (paras 54 55) accepted that the court cannot ignore an established rule of international law, far less one which has the force of ius cogens erga omnes, and declined therefore to base his decision on the proposition that the Governments conduct of foreign relations enjoys something close to an immunity from judicial review.
+He continued: The true answer to Mr Ottys argument on ground 2 rests in my judgment on the facts of the case.
+In R (Al Rawi) v Secretary of State for Foreign and Commonwealth Affairs [2008] QB 289 I said, at para 102: [T]he status of ius cogens erga omnes empowers but does not oblige a state to intervene with another sovereign state to insist on respect for the prohibition of torture (para 151 of Prosecutor v Furundzija) .
+But Mr Ottys submission entails an obligation on the Secretary of State so to intervene.
+Given that the Foreign Secretarys own reasons for lifting the hold were not tainted by torture evidence, there is nothing in Mr Ottys case save an insistence that the United Kingdom should, in effect, have stymied the designation because other states were not so pure.
+The law did not require him to do so.
+Submissions
+In this court Mr Otty challenges both the reasoning of the decision in Al Rawi on which Laws LJ relied, and its applicability to this case.
+The Court of Appeal in Al Rawi had been wrong to interpret the passage cited from Furundzija as support for an entitlement rather than an obligation to act.
+In any event, unlike Al Rawi in which the Secretary of State had had no control over the treatment of inmates in Guantanamo Bay, in this case he had the power to determine whether or not designation would proceed.
+Further, the courts below erred in holding that the Secretary of State could disassociate himself from the reasoning of the committee of which he was a member.
+Although the committees reasons were not published (nor required to be published) until some years later, the narrative summary must be treated as representing the views of the committee as a body, and so attributable also to its members individually.
+For the Secretary of State, Mr Swift QC accepted that the decision is reviewable, but subject to defined limits.
+As he put it in his printed case: It is common ground that the decision taken by the Foreign Secretary as a member of the 1267 committee as to whether or not the appellant met the designation criteria is justiciable as a matter of domestic law, applying standard public law principles.
+It is equally clear, however, that neither similar decisions taken by other members of the committee, nor decisions of the committee itself, are justiciable as a matter of UK domestic law.
+In his submission, the Secretary of State in removing the hold on designation was agreeing to the fact of designation and no more.
+Provided his own reasons were valid, the law did not make him responsible for the decisions of others.
+He had no means of knowing what evidence might be relied on by them, nor any duty to make inquiries.
+At the time, under the current UN guidance there was no expectation that the committee would form a single collective view or adopt collective reasons.
+Discussion
+In choosing between these competing submissions, it is important to define the scope of the courts powers.
+Mr Swifts concession that the decision of the Secretary of State is subject to judicial review begs a potentially important question as to the legal basis of the concession and its proper limits.
+Judicial review does not operate in the abstract.
+The standard public law principles to which Mr Swift refers cannot be divorced from the legal context, statutory or common law, in which the particular executive action is taken or decision made.
+The legal context in which the 2005 decision was made was that of a body operating under international law, not subject to the domestic courts.
+If the Secretary of State alone is to be subject to review, there must be some legal principle by which under domestic law his vote can be distinguished from those of other members.
+The point can be illustrated by reference to the committees narrative summary of reasons published in 2010.
+I agree with Mr Swift that there is no valid basis for attributing that statement retrospectively to the decision made in 2005, at a time when there was no requirement for a collective statement of any kind.
+But I would reach the same view looking at the matter in 2010.
+Although I see force in Mr Ottys submission that the Secretary of State, as a voting member of the committee, cannot divorce himself from its collective statement, this would lead me to the opposite conclusion from that drawn by him.
+It does not mean that the Secretary of States vote, infected by the committees reasons, acquires a separate status for the purpose of domestic law.
+They remain the reasons of the international body, challengeable if at all only under international law (or by virtue of their specific adoption under the European regulation).
+The object of the present challenge therefore has to be the logically prior decision of the Secretary of State in 2005 to remove his hold on the proposal for designation.
+The source of his powers under domestic law lay not in any statute but in the exercise of prerogative powers for the conduct of foreign relations.
+That did not make it immune from judicial review, but it is an area in which the courts proceed with caution, as is apparent from the authorities reviewed by the Court of Appeal in R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598; [2003] UKHRR 76 (cited with approval in this court in R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44; [2014] 1 WLR 2697, paras 49ff).
+In Abbasi the issue was whether the Secretary of State could be required by the court to intervene with the American government on behalf of a British prisoner held in Guantanamo Bay.
+Following Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (GCHQ), it was accepted as settled law that the issue of justiciability depends, not on general principle, but on subject matter and suitability in the particular case (para 85).
+The court cited R v Secretary of State for Foreign and Commonwealth Affairs, Ex p Everett [1989] QB 811, relating to the issue of a passport, in which Taylor LJ summarised the effect of GCHQ: The majority of their Lordships indicated that whether judicial review of the exercise of prerogative power is open depends upon the subject matter and in particular upon whether it is justiciable.
+At the top of the scale of executive functions under the prerogative are matters of high policy, of which examples were given by their Lordships; making treaties, making war, dissolving Parliament, mobilising the Armed Forces.
+Clearly those matters and no doubt a number of others, are not justiciable.
+But the grant or refusal of a passport is in a quite different category.
+It is a matter of administrative decision affecting the rights of individuals and their freedom of travel.
+It raises issues which are just as justiciable as, for example, the issues arising in immigration cases. (p 820) In Abbasi the court held that the exercise of the Secretary of States powers to protect British citizens abroad was in principle subject to judicial review, although the court could not enter the forbidden areas, including decisions affecting foreign policy; but it declined to intervene on the facts of that case (paras 106 107).
+The present case falls somewhere between the two ends of the spectrum indicated by Taylor LJ.
+The conduct of foreign policy through the United Nations, and in particular the Security Council, is clearly not amenable to review in the domestic courts so far as it concerns relations between sovereign states.
+The distinguishing factor in the present context is that the Security Councils action, through the 1267 committee, is directed at the rights of specific individuals, and in this case of an individual living in the United Kingdom.
+Furthermore, at the time the decision was taken, the Security Council procedures provided no other means for the individual to challenge their decision.
+It is no doubt such considerations that led to Mr Swifts concession.
+I am content (without deciding the point) to proceed on the basis that it is correct.
+That said, the decision under challenge in the domestic proceedings is that of the Secretary of State not of the committee, and it is by reference to his reasons that it must be judged.
+There is no legal basis for attributing to him reasons which he did not have.
+Since his own reasons were untainted, Mr Otty has to show that he was in breach of a distinct duty to inquire into the reasons of the other members, and to withhold his support if they appeared tainted in any way.
+For the existence of such a duty he relies on the obligation of states to reject the fruits of torture, and places particular weight on the following passages from Furundzija (in addition to those cited above): 148. given the importance that the international community attaches to the protection of individuals from torture, the prohibition against torture is particularly stringent and sweeping.
+States are obliged not only to prohibit and punish torture, but also to forestall its occurrence . 149. in the case of torture the requirement that states expeditiously institute national implementing measures is an integral part of the international obligation to prohibit this practice.
+Consequently, states must immediately set in motion all those procedures and measures that may make it possible, within their municipal legal system, to forestall any act of torture or expeditiously put an end to any torture that is occurring.
+He also relies on Lord Binghams reference in this context (A (No 2), para 34) to the obligations held by the International Court of Justice to arise from its ruling on the illegality of the wall in occupied Palestinian territory: see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion (unreported) 9 July 2004 (General List No 131) para 159).
+That placed other states under an obligation not to recognise the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction.
+These passages leave no doubt as to the importance of the rules against torture and the use of torture tainted evidence, and the duty of states to take the necessary measures within their municipal legal systems to give full effect to those rules.
+However, taken at their highest, they do not suggest or imply any duty on states to inquire into the possible reliance on such evidence by other states, whether on their own or as parts of an international organisation such as the 1267 committee.
+The obligations held to arise out of the International Courts decision on the Palestinian wall are nothing in point.
+They followed a definitive finding of illegality.
+There was no suggestion that, absent such a finding, mere suspicion of illegality could give rise to an equivalent obligation on other states.
+In agreement with the courts below I would reject this ground of appeal.
+Absence of power
+Mr Ottys submission under this head starts from the principle, established by authorities dating back at least to Entick v Carrington (1765) 19 State Tr 1029, that interference by the state with individual property rights cannot be justified by the exercise of prerogative powers, unsupported by specific statutory authority.
+The Secretary of States decision to remove his hold on designation, which led inexorably and designedly to the freezing of the appellants assets, fell within that principle, even if the actual interference was authorised (see R (M) v Hackney London Borough Council [2011] EWCA Civ 4; [2011] 1 WLR 2873, in which a local authority was held liable for procuring the detention of the claimant by the hospital trust, albeit that the latter was acting under statutory powers).
+The Court of Appeal accepted the relevance of the Entick principle (a constitutional principle of the first importance) but held that the necessary authority was provided by the European regulation.
+Laws LJ said: I accept that if the Foreign Secretarys release of the hold on the claimants designation rested solely on the Prerogative power, then it would appear to have been done without legal authority.
+But that is not the position.
+As a matter of domestic law the Foreign Secretary was obliged to apply the Consolidated List regime to its proper subjects by force of article 2(1), (3) of and Annex I to Regulation 881/2002.
+There might be an argument on the question whether the general words of the European Communities Act 1972, by virtue of which the Regulation has the force of law in the United Kingdom, are sufficient to authorise the EU legislature to empower or require the Secretary of State to deprive an individual of access to any economic resources (with or without proper proof of what was said against him); but no such argument has been run in this or any case, and it would plainly not be appropriate to canvass it now. (para 26)
+In this court Mr Swift puts his case rather differently.
+He declined to support the Court of Appeals reliance on regulation 881 as providing statutory authority for the Secretary of State to approve the designation.
+That power rested on the exercise of the prerogative, which was however sufficient for its purpose.
+It was not that decision which resulted in interference with the appellants rights, but rather the decision of the European Commission, giving effect in turn to the decision of the 1267 committee.
+The fact that the Secretary of States decision was a step along the path to those later decisions was insufficient to engage the Entick principle.
+In my view, there is a short answer to this ground.
+The respective submissions, and indeed the reasoning of the Court of Appeal, pay insufficient regard to the legal means by which the listing took effect in this country.
+It is here that the interference with the appellants rights, like the intrusion on Mr Enticks property, took place.
+It was directly and specifically authorised by regulation 881, which was given legislative effect in this country by the European Communities Act 1972.
+No issue has been raised as to the effectiveness of the Act for that purpose.
+The regulation is subject to challenge, but in the European rather than the domestic courts.
+In my view the regulation, taken with the 1972 Act, provides ample statutory authority to satisfy the Entick principle.
+That is not affected by the causative role played by the 1267 committee, nor by the Secretary of State as a member of that committee.
+That was a lawful exercise of his prerogative powers (unlike the actions of the local authority in the Hackney case, which had no lawful basis).
+For the purpose of domestic law regulation 881, given effect by a United Kingdom statute, stands on its own feet.
+Laws LJ was right to place reliance on the regulation.
+He was wrong with respect to read it as implying statutory authority for the prior decision of the Secretary of State as a member of the 1267 committee, but wrong also to think that statutory authority was required at that stage.
+As Mr Swift rightly submits, the exercise of the prerogative power for that purpose involved no breach of any common law principle.
+Standard of proof
+The arguments
+It is common ground that the standard applied by the Secretary of State in 2005 when considering whether the appellant was associated with Al Qaida was that of reasonable grounds for suspicion.
+This appears not from any formal statement but from the evidence of the responsible officer in the Foreign Office who says: When deciding whether to support another member states designation proposal, the Secretary of State considers whether or not there are reasonable grounds for suspecting that the individual concerned meets the criteria for designation; ie whether or not the individual is associated with Al Qaida.
+Although it is not specifically stated in the submission of 12 September 2005, I understand that this is the standard of proof that the then Secretary of State (Jack Straw MP) would have applied when he considered whether or not to lift his hold on another member states proposal to designate the claimant.
+I say this because I understand that this was the standard which was applied at the time and which continues to be applied today. (Adrian Scott, third witness statement, para 5) He adds that, had the evidence then available been assessed on the basis of a balance of probabilities, he would have expected the same conclusion.
+Mr Otty submits that the standard applied by the Secretary of State in making his decision in 2005 was too low, having regard to the serious consequences for the appellants rights.
+He relies strongly on the reasoning of members of the Supreme Court in Ahmed, where the application of such a test led to the quashing of the order made under the relevant United Kingdom statute.
+He argues further that the test is not supported by the wording of the relevant Security Council resolution (1617) which refers to participating in or supporting the offending activities, not merely being suspected of doing so.
+Finally he relies on the doctrine of proportionality under the common law (as discussed in recent cases in the Supreme Court), which he says embraces concepts of necessity and suitability similar in substance to the tests of necessity and expedience prescribed by the statute in issue in Ahmed.
+The Court of Appeal rejected those submissions.
+Laws LJ, like Toulson LJ in the Divisional Court ([2012] EWHC 2091 (Admin); [2013] QB 906), took as his starting point the recognition that, in lifting the hold, the Secretary of State was exercising a power derived not from an Act of Parliament but in the exercise of prerogative powers acting on behalf of the Government as a member of an international body.
+The basis of judicial review must lie, therefore, not in the actual or presumed intention of Parliament in passing empowering legislation; but must found entirely on standards which are the product of the common law [of which] reason and fairness are the cornerstones (para 23).
+He continued: In this case the application of these standards requires in my judgment that the court be satisfied that the Foreign Secretary reached his decision conformably with the Consolidated List regime.
+His decision was as a participant in that regime.
+Reason and fairness having effect, perhaps, as a species of legitimate expectation (but I do not mean to involve that expressions panoply of conceptual footnotes) surely demand that he should act according to the grain of the scheme and not across it. (para 24)
+Having distinguished Ahmed (for reasons to which I will return) he found support for the Secretary of States approach in the preamble to resolution 1617, which emphasised the preventive purpose of the regime.
+That aim, he said, is more effectively promoted by the adoption of a reasonable suspicion test (para 32).
+He noted also that paragraph 7 of the same resolution urges the implementation of recommendations of the Financial Action Task Force (FATF) relating to money laundering and terrorist financing.
+The interpretative notes to Special Recommendation III (para 2) referred to the objective of freezing terrorist related assets based on reasonable grounds, or a reasonable basis, to suspect or believe that the assets could be used to finance terrorist activity.
+A similar test was later adopted by the Ombudsperson in her report to the Security Council in January 2011 (quoted at para 8 of his judgment), in which she proposed the test whether there is sufficient information to provide a reasonable and credible basis for the listing.
+Mr Swift in substance adopts the reasoning of the Court of Appeal.
+He adds that the test proposed by the Ombudsperson in 2011 has not in the ensuing four years been questioned by the 1267 committee.
+In 2013 it was reaffirmed by her, following exchanges with Ben Emmerson QC who as UN Special Rapporteur had proposed a more stringent balance of probability test.
+Furthermore in 2012 the Security Council by resolution 2083 (para 44), when urging member states to take note of best practices for effective implementation of targeted financial sanctions, referred to the need to apply an evidentiary standard of proof of reasonable grounds or reasonable basis.
+In view of the reliance understandably placed by Mr Otty on the reasoning of this court in Ahmed it is necessary to refer to the judgments in a little more detail.
+As Mr Otty explains, the court had to consider the legality of two regimes introduced by Orders in Council under the United Nations Act 1946: the first designed to give effect to the resolution 1267 which is in issue in this case (referred to as AQO 2006); the other, the Terrorism (United Nations Measures) Order 2006 (or TO 2006) relating to a different Security Council resolution (1373).
+That was directed at persons who commit or attempt to commit terrorist acts, but left their selection to member states.
+Both Orders were enacted under section 1(1) of the 1946 Act, which permitted the making by order of such provision as appears necessary or expedient for enabling [Security Council] resolutions to be effectively applied.
+Both Orders were quashed by this court.
+Although only the first was applicable to the appellant, Mr Otty finds more assistance in the reasoning of this court in respect of the second.
+He relies in particular on the definition of the issue by Lord Phillips (para 131): The wording of the TO tracks the wording of the Resolution, save that those who can be made subject to the Order are not only those described in the Resolution but those whom the Treasury have reasonable grounds for suspecting fall or may fall within that description.
+The issue is whether it can properly be said to be necessary or expedient to apply this test of reasonable suspicion in order to ensure that the measures in the Resolution are effectively applied to those described in the Resolution.
+Lord Phillips answered that question in the negative.
+He said that by applying a test of reasonable suspicion the Order goes beyond what is necessary or expedient to comply with the relevant requirements of Resolution 1373 and thus beyond the scope of section 1 of the 1946 Act. (para 143)
+Although those passages were not dealing directly with resolution 1617, Mr Otty finds parallels in the reasoning in respect of the AQO made to give effect to that resolution, particularly that of Lord Phillips (paras 139 143).
+He had looked at the parallel series of resolutions adopted by the Security Council under article 41 (including resolution 1617) for guidance on the intended scope of resolution 1373, but had found nothing to indicate that the Security Council has decided that freezing orders should be imposed on a basis of mere suspicion (para 139).
+Mr Otty submits that Lord Phillips reasoning was sufficiently reflected in other judgments to give it majority support.
+I am doubtful whether that is so.
+The clearest support comes from Lord Mance who relied strongly on the differences of language between the resolution and the Order: The relevant wording of Security Council Resolution 1373 paragraph 1(c)(d) is directed at the prevention and suppression and the criminalisation and prosecution of actual terrorist acts; This wording does not suggest that the Security Council had in mind reasonable suspicion as a sufficient basis for an indefinite freeze (para 225).
+In my opinion, there is an objective limit to the extent to which section 1(1) permits the executive by Order in Council to enact any measure that appears to it expedient to enable the effective application of the core prohibition mandated by Resolution 1373.
+A measure cannot be regarded as effectively applying that core prohibition, if it substitutes another, essentially different prohibition freezing the assets of a different and much wider group of persons on an indefinite basis (para 230).
+However, in the leading judgment Lord Hope (with whom Lord Walker and Lady Hale agreed) saw the issue as turning more on principles of domestic law as applied to section 1 of the 1946 Act: SCR 1373 (2001) is not phrased in terms of reasonable suspicion.
+It refers instead to persons who commit, or attempt to commit, terrorist acts.
+The Preamble refers to acts of terrorism.
+The standard of proof is not addressed.
+The question how persons falling within the ambit of the decision are to be identified is left to the member states.
+Transposition of the direction into domestic law under section 1 of the 1946 Act raises questions of judgment as to what is necessary on the one hand and what is expedient on the other.
+It was not necessary to introduce the reasonable suspicion test in order to reproduce what the SCR requires.
+It may well have been expedient to do so, to ease the process of identifying those who should be restricted in their access to funds or economic resources.
+But widening the scope of the Order in this way was not just a drafting exercise.
+It was bound to have a very real impact on the people that were exposed to the restrictions as a result of it.
+Is it acceptable that the exercise of judgment in matters of this kind should be left exclusively, without any form of Parliamentary scrutiny, to the executive? (para 58 emphasis added) He held that, by introducing the reasonable suspicion test as a means of giving effect to SCR 1373, the Treasury had exceeded its powers under section 1(1): This is a clear example of an attempt to adversely affect the basic rights of the citizen without the clear authority of Parliament.
+As Lord Hoffmann said in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 131, fundamental rights cannot be overridden by general or ambiguous words (para 61).
+Similarly, Lord Rodger noted that resolution 1373 itself provided no express guidance as to the test, but simply prescribed the result to be achieved: it does not indicate how states are to identify the people in question (para 168).
+He observed, however, that the reasonable suspicion test meant that sooner or later, someone will be designated who has not actually been committing or facilitating terrorist acts.
+He agreed with Lord Hope that the making of an Order, which, in effect, amounts to permanent legislation conferring powers to affect, directly, very basic domestic law rights of citizens and others lawfully present in the United Kingdom went well beyond the general power conferred by section 1(1) of the 1946 Act (para 174).
+Lord Brown (dissenting in part) also referred to what he called the Simms principle or principle of legality, concluding: Where, as here, those to be designated under the proposed measure will suffer very considerable restrictions under the regime, I would hold that it can only properly be introduced by executive Order in Council if the measure is in all important respects clearly and categorically mandated by the UN resolution which it is purporting to implement.
+If the implementing measure is to go beyond this, then, consistently with the Simms principle, it can only properly be introduced by primary legislation. (para 196)
+Laws LJ dealt with Mr Ottys arguments under Ahmed relatively briefly.
+He said that, on a reading of the whole case, the reach of the courts concern was no wider than the question whether the reasonable suspicion test in the regulation was authorised by section 1 of the 1946 Act.
+He noted Lord Hopes comment that: The standard of proof is not addressed.
+The question how persons falling within the ambit of the decision are to be identified is left to the member states. and Lord Rodgers comment to similar effect (both quoted above).
+He continued: It is in my judgment clear that if the imposition of sanctions is in principle authorised by [regulation 881], the general law does not impose a further requirement to the effect that the sanction may only bite if the material facts are proved on the balance of probability.
+By force of article 2(1), (3) of and Annex I to [regulation 881] the procedures of the material Security Council resolutions the Consolidated List regime are effectively incorporated into the [regulation].
+There is no doubt but that the imposition of sanctions is in principle authorised by [regulation].
+The question then is whether the Foreign Secretary has lawfully deployed the Prerogative power to invoke that authority by lifting the hold on the claimants designation.
+That in turn depends on the correct resolution of the issue I stated earlier: did the Foreign Secretary reach his decision conformably with the Consolidated List regime? (paras 27 28) As already noted, he answered that question in favour of the Secretary of State.
+Discussion
+I have found this issue more troubling than (seemingly) did the courts below, particularly having regard to the strength of views expressed by this court in Ahmed.
+From the victims point of view it may seem strange that a process which, as applied under domestic legislation, was found to involve an unacceptable interference with his property rights, should be capable of automatic and immediate reinstatement by the indirect route of a European regulation.
+Indeed, it is unclear from the substantive judgments in Ahmed to what extent the court was made aware of the limited practical effects of its decision. (Some reference was made by Lord Hope to that regulation in his dissenting judgment following a later hearing on the issue of suspension: Ahmed v HM Treasury (No 2) [2010] UKSC 5; [2010] 2 AC 634, 692, 693, at paras 12, 15.)
+However, as I have said, the majority judgments turned principally on the interpretation of a 1946 statute designed to give effect to United Nations resolutions but expressed in relatively general terms.
+Particular care was needed in applying it to a novel form of UN measure, directly targeted at the rights of individuals, as under the present resolution.
+The same considerations do not apply to an EU regulation designed specifically to give effect to the current UN regime, and itself subject to judicial review in the European courts.
+I note also that Lord Phillips was influenced by his inability to find anything in UN practice to support a reasonable suspicion test. (It seems that the FATF guidelines were referred to in argument, under the name UN International Task Force guidelines: see for example per Lord Hope para 59.) We have the advantage of the more recent evidence, on which Mr Swift is now able to rely as to the current practice of the UN committee, supported by the Ombudsperson.
+Although this later evidence was not available at the time of the decisions under review, there is no indication that it represented a material change of practice or loosening of the tests previously applied by the committee.
+Had this been available to the court in Ahmed, it might well have influenced some aspects of the reasoning, even if it is unlikely materially to have affected the majoritys view of the interpretation of the 1946 Act.
+In substance therefore I agree with reasoning of the Court of Appeal, supported by the more recent evidence relied on by Mr Swift.
+The position of a decision maker trying to assess risk in advance is very different from that of a decision maker trying to determine whether someone has actually done something wrong.
+Risk cannot simply be assessed on a balance of probabilities.
+It involves a question of degree.
+The Court of Appeal were right to attach weight to the notes to the FATF Special Recommendation which referred to the preventative purpose of designation, and the requirement to freeze terrorist related funds based on reasonable grounds, or a reasonable basis, to suspect or believe that they could be used to finance terrorist activity.
+This is similar in substance to the language used by the Ombudsperson in her Fifth Report dated 31 January 2013, where she rejected a test based on probability, and proposed the standard whether there is sufficient information to provide a reasonable and credible basis for the listing.
+She saw this as one which recognised a lower threshold appropriate to preventative measures, while setting a sufficient level of protection for the rights of individuals.
+As a member of the 1267 committee, the Secretary of State was not only entitled, but would be expected, to apply the same approach as the committee as a whole.
+On this ground also the appeal must fail.
+Standard of review
+The issues
+In the Divisional Court, under the heading rationality, Toulson LJ considered Mr Ottys submission that there was insufficient evidence to support the Secretary of States finding in 2005 of a subsisting association between the appellant and any Al Qaida organisation, and nothing to show any difference from the position in 2009 when he reached the opposite conclusion.
+Toulson LJ concluded that the Secretary of State was entitled to rely on the assessment by the Security Service that the appellant continued to hold extremist views and presented a continuing risk of participation in the activities of the EIJ.
+It was well established that the courts should pay very high respect to ministerial security assessments on competence and constitutional grounds.
+The fact that four years later the Security Service came to a different assessment did not mean that the view taken in 2005 was irrational (paras 82 84).
+rationality review was inappropriate: In the Court of Appeal Laws LJ rejected Mr Ottys submission that a there is no question of precedent fact.
+Nor is there any issue of proportionality: not only because we are outside the territory of the European Convention but also because the Foreign Secretary was not required to exercise a discretionary judgment where there might have been alternative outcomes fertile ground for a proportionality approach.
+Here, however, once satisfied that the claimant met the criteria for designation, the Foreign Secretarys duty was to include him in the Consolidated List. (para 42)
+Mr Otty challenges this reasoning on three grounds: the claim did include a challenge brought pursuant to the European i) Convention which required an assessment of proportionality; ii) in the context of the present case concerning interference with fundamental rights, common law review is not restricted to a Wednesbury rationality test; iii) the court was wrong to hold that the case involved no discretionary judgment by the Secretary of State, and therefore no basis for assessing its proportionality.
+The second submission relies on cases decided in this court since the decision of the Court of Appeal (Kennedy v Information Comr [2015] AC 455, Pham v Secretary of State for the Home Department [2015] 1 WLR 1591, which are said to confirm that a simple Wednesbury test was inappropriate: see Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223).
+Mr Swift for the Secretary of State accepts that the court is likely to take the approach signalled in Kennedy and Pham as its starting point, and that the facts of the case make it one in which the review to be conducted will be towards the intense end of the scale, conducted in accordance with common law principles, incorporating notions of proportionality.
+He does not, as I understand him, adopt Laws LJs suggestion that such an approach is inappropriate because the Secretary of State was not exercising a discretionary judgment where there might have been alternative outcomes.
+He emphasises, however, that application of the doctrine of proportionality does not mean that there has been a shift to merits review (citing, inter alia, R (Daly) v Secretary of State for the Home Department, [2001] UKHL 26; [2001] 2 AC 532 paras 27 28, per Lord Steyn).
+He submits that the review conducted by the Divisional Court, albeit under the heading rationality, was entirely consistent with the new approach indicated by Kennedy and Pham.
+Toulson LJ [2013] QB 906 recognised the gravity of the consequence of the designation for the claimant and conducted a review of commensurate intensity.
+Discussion
+In Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69; [2015] 3 WLR 1665 (decided since the hearing in this appeal) this court had occasion to consider arguments, in the light of Kennedy and Pham, that this court should authorise a general move from the traditional judicial review tests to one of proportionality.
+Lord Neuberger (with the agreement of Lord Hughes) thought that the implications could be wide ranging and profound in constitutional terms, and for that reason would require consideration by an enlarged court.
+There was no dissent from that view in the other judgments.
+This is a subject which continues to attract intense academic debate (see, for example, the illuminating collection of essays in The Scope and Intensity of Substantive Review: Traversing Taggarts Rainbow ed Wilberg and Elliott, 2015).
+It is to be hoped that an opportunity can be found in the near future for an authoritative review in this court of the judicial and academic learning on the issue, including relevant comparative material from other common law jurisdictions.
+Such a review might aim for rather more structured guidance for the lower courts than such imprecise concepts as anxious scrutiny and sliding scales.
+Even in advance of such a comprehensive review of the tests to be applied to administrative decisions generally, there is a measure of support for the use of proportionality as a test in relation to interference with fundamental rights (Keyu paras 280 282 per Lord Kerr, para 304 per Lady Hale).
+Lord Kerr referred to the judgment of Lord Reed in Pham (paras 113, 118 119) where he found support in the authorities for the proposition that: where Parliament authorises significant interferences with important legal rights, the courts may interpret the legislation as requiring that any such interference should be no greater than is objectively established to be necessary to achieve the legitimate aim of the interference: in substance, a requirement of proportionality. (para 119) See also my own judgment in the same case (para 60), and those of Lord Mance (paras 95 98) and Lord Sumption (paras 105 109), discussing the merits of a more flexible approach in judging executive interference with important individual rights, in that case the right to British citizenship.
+On the other hand, in many cases, perhaps most, application of a proportionality test is unlikely to lead to a different result from traditional grounds of judicial review.
+This is particularly true of cases involving issues of national security.
+In Bank Mellat v HM Treasury (No 2) [2013] UKSC 39; [2014] AC 700 (which concerned another security council regime, relating to nuclear weapons), there was not only majority and minority agreement as to the steps involved in an assessment of proportionality (demanded in that case by the relevant statute), but also, within that context, general recognition that on issues of national security a large margin of judgment was accorded to the executive (paras 20 21 per Lord Sumption, para 98 per Lord Reed).
+The difference turned on contrasting views as to the allegedly discriminatory nature of the restrictions in that case.
+Similar considerations apply in the present case.
+Mr Otty asks us to go further and to hold that the Divisional Court should have conducted a full merits review of the Secretary of States decision.
+He finds support in the judgments of the Court of Appeal in Ahmed in which such a submission appeared to find favour with Sir Anthony Clarke MR and Wilson LJ ([2008] EWCA Civ 1187; [2010] 2 AC 534 at pp 578, 587).
+I agree with the Court of Appeal (para 38) that those observations were made in the context of an Order made under a domestic statute, and were overtaken by the decision of this court that the Order was ultra vires.
+In my view, they can have no application in the present context, which concerns the Secretary of States functions as a member of a UN committee.
+Even accepting that his decision is judicially reviewable, it is to the member states, as members of the committee, that the Security Council has entrusted the task of determining whether the criteria for listing are fulfilled.
+It would be quite inconsistent with that regime for a national court to substitute its own assessment of those matters.
+On the basis that a proportionality review is appropriate, two issues arise: first, whether the application of such a test to the decisions under challenge would have made any difference; secondly, if so, whether or not, having regard in particular to the subsequent changes in the basis of the appellants designation, the court should refuse any remedy in respect of the earlier decisions.
+As to the first, I agree with Mr Otty that, in the light of subsequent authority, Toulson LJ was wrong to lay emphasis on a test based on irrationality.
+However, apart from the general criticism, he has failed to highlight any particular aspect of the reasoning which is open to challenge even applying a proportionality test.
+Apart from a general denial of involvement in terrorism, the appellant has not addressed the specific incidents referred to in the 2005 security assessment.
+Nor in my view has he provided any grounds for questioning the Secretary of States assessment of future risk, given the wide margin allowed to him on such an issue.
+In any event, whatever grounds there may be for criticism of Toulson LJs reasoning, they have in my view been entirely overtaken by subsequent events.
+Even if we were to find a legal flaw in the 2005 decision, that would not of itself entitle the appellant to a remedy.
+Mr Otty has been unable to show how an order quashing the 2005 decision, or a declaration of illegality, would have any substantive effect on his present position.
+Even in 2010 quashing the Secretary of States decision would not have detracted from the continuing effect of the committees listing, or its application in the United Kingdom through regulation 881.
+So far as it concerns the Secretary of States own position, he had already decided by 2009 to support the application for de listing.
+His subsequent change of mind in 2014 followed the Ombudspersons report.
+There is no reason to link it to any flaws that might have been shown in his reasoning in 2005.
+More generally, the court should in my view be very slow to grant a substantive remedy in the circumstances now facing the court.
+Judicial review is a discretionary remedy.
+The court is not required to ignore the appellants own conduct, or the extent to which he is the author of his own misfortunes.
+I appreciate that the material disclosed by the Ombudspersons report became available after the Court of Appeals judgment, and indeed after the grant of permission to appeal to this court.
+It is not formally in issue before us.
+Further the appeal raised important issues of law which needed a decision.
+I can understand therefore why it was decided to defer for the moment detailed consideration of any challenge to the latest decision.
+However, the fact remains that there is before the court unchallenged evidence showing that the appellant is at least a strong vocal supporter of Al Qaida and its objectives.
+That stands uneasily with his simple denial in 2010 of any involvement in terrorism.
+If those allegations were misplaced, I would have expected him to want to say so publicly at the first opportunity.
+I raised my concern with Mr Otty at the opening of the appeal, but I heard no convincing answer.
+Even if the appellant were otherwise entitled to some relief, I would be very hesitant about granting it so long as these allegations stand unrefuted.
+Conclusion
+For the reasons I have given, I would dismiss this appeal.
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+The question in this case is whether the appellant falls within the scope of section 193 of the Housing Act 1996 as amended, which applies, by virtue of subsection (1), where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.
+In such a case, section 193(2) requires the authority to secure that accommodation is available for occupation by the applicant.
+In the present case, there is no doubt that the appellant is homeless, eligible for assistance and has a priority need.
+The question is whether the authority were entitled to be satisfied that she became homeless intentionally.
+The appellant surrendered her tenancy of a bedsitting room in a hostel in Leyton on 25 October 2011, as she was unhappy about smells in the hostel.
+She moved into temporary accommodation in Kings Cross.
+That arrangement came to an end during November 2011, when she was asked to leave because the house was over crowded.
+On 24 November 2011 she applied to the respondent authority for accommodation as a homeless person under the 1996 Act.
+She was provided with interim accommodation in Ilford, where she remained until 23 December 2011.
+She was then moved to interim accommodation in Leytonstone, where she still remains until after the decisions which are challenged.
+On 15 February 2012 she had a baby daughter.
+If she had still been living in the hostel in Leyton, she would then have had to leave it, as only single persons were permitted to reside there.
+On 1 August 2012 the authority decided that they were satisfied that she was homeless, eligible for assistance and had a priority need, but were also satisfied that she became homeless intentionally.
+On 31 January 2013, a decision to the same effect was made by a review officer on a review under section 202 of the 1996 Act.
+The basis of the decision was that the applicant had surrendered her tenancy of the room in the hostel in October 2011 and in consequence had ceased to occupy accommodation which was available for her occupation, and which it would have been reasonable for her to continue to occupy until she gave birth.
+Her contention that it would not have been reasonable for her to continue to occupy the accommodation because of an unpleasant smell was rejected.
+Her contention that she would have had to leave the hostel in any event when she gave birth was regarded as irrelevant.
+There was no finding as to the date on which the appellant became homeless.
+The issue raised in the appeal is, in substance, whether the review officer was entitled to be satisfied that the appellant became homeless intentionally, on the basis that she deliberately gave up the accommodation in the hostel, given that she would have been homeless in any event by the time her application was considered.
+In that regard, it is contended that the birth of the baby broke the chain of causation between the appellants leaving the hostel and her state of homelessness when the application was considered.
+In relation to that issue, the court is invited to depart, if necessary, from the decision of the House of Lords in Din v Wandsworth London Borough Council [1983] 1 AC 657 under the Housing (Homeless Persons) Act 1977.
+The homelessness legislation and its construction
+It may be helpful to begin by summarising how the legislation in relation to homelessness, and its construction by the courts, have evolved, so that the decision in Din can be placed in its historical context.
+The following summary, so far as concerned with the legislation, is largely borrowed from the speech of Baroness Hale of Richmond in Birmingham City Council v Ali [2009] UKHL 36; [2009] 1 WLR 1506 and the judgment of Lord Hodge in R (N) v Lewisham London Borough Council [2014] UKSC 62; [2014] 3 WLR 1548.
+Following the Second World War, Part III of the National Assistance Act 1948 placed local authorities under a duty to provide temporary accommodation to persons who were in urgent need of it.
+The 1977 Act replaced the provisions of the 1948 Act with a regime which also provided longer term accommodation for the homeless.
+Important aspects of that regime survive in the 1996 Act.
+In particular, the 1977 Act introduced the concept of priority need (section 2), the obligation of the authority to provide temporary accommodation while they make inquiries as to whether the applicant is homeless and in priority need and whether he or she became homeless intentionally (section 3), and the duties, depending on the results of that investigation, to provide advice and appropriate assistance, to provide temporary accommodation for a period to give a reasonable opportunity to secure other accommodation, or to secure that accommodation becomes available for occupation (section 4).
+The 1977 Act was consolidated into wider housing legislation in Part III of the Housing Act 1985.
+As I shall explain, that in turn was amended by the Housing and Planning Act 1986, so as to harmonise the definitions of homelessness and intentional homelessness.
+The 1985 Act, as amended, was repealed by the 1996 Act, which in Part VII provides the current statutory regime for dealing with homelessness.
+In particular, when an applicant applies for accommodation or assistance in obtaining accommodation (section 183), the local housing authority carry out inquiries to satisfy themselves whether he or she is eligible for assistance and, if so, what if any duty is owed (section 184).
+There is an interim duty to accommodate under section 188.
+If, following the section 184 inquiry, the local housing authority are satisfied that the applicant is homeless, eligible for assistance but homeless intentionally, section 190 applies: see section 190(1).
+The authoritys duty, if the applicant has a priority need, is to secure that accommodation is available for a period to give a reasonable opportunity of securing accommodation for occupation, and to provide advice and assistance in attempts to secure accommodation: section 190(2).
+If not satisfied that the applicant has a priority need, the authority's duty is confined to the provision of advice and assistance: section 190(3).
+If the authority are satisfied that the applicant is homeless and eligible for assistance, not satisfied that he or she is intentionally homeless, but also not satisfied that he or she has a priority need, the duty is again to provide advice and assistance: section 192.
+If, on the other hand, the authority are satisfied that the applicant is homeless, eligible for assistance and has a priority need and are not satisfied that he or she became homeless intentionally, section 193 applies: see section 193(1).
+The authority are then under a duty to secure that accommodation is available for occupation by the applicant: section 193(2.).
+The question in the present case is whether the appellant falls within the scope of section 190(1) or section 193(1).
+The 1977 Act, Part III of the 1985 Act, and Part VII of the 1996 Act, have all given rise to numerous difficulties of interpretation.
+In particular, the meaning attributed to some of the fundamental concepts employed, such as homeless and accommodation, has evolved over time as the result of judicial decisions and legislative amendment.
+To summarise matters which I shall later discuss in greater detail, the case of Din, in 1981, concerned the definition of becoming homeless intentionally, in section 17(1) of the 1977 Act.
+That definition required the authority to consider whether an applicant for assistance under the Act had ceased to occupy accommodation which was available for his occupation, and which it would have been reasonable for him to continue to occupy, in consequence of his own deliberate act or failure to act.
+The House of Lords decided by a majority that the questions whether the accommodation was available, and whether it would have been reasonable to continue to occupy it, were to be considered as at the time when the applicant ceased to occupy it.
+It followed that, if the definition was satisfied as at that time, it was irrelevant to that question to consider whether, if the applicant had not ceased to occupy the accommodation, it would have ceased to be available for his occupation by the time of the authoritys inquiry.
+I can say at once that, in relation to those matters, the decision appears to me to have been correct and to remain good law.
+That does not however resolve the issue in the present case, as I shall explain.
+Importantly for present purposes, all the members of the House also considered that there must be a continuing causal connection between the deliberate conduct referred to in section 17(1) and the applicants homelessness at the time of the inquiry.
+It will be necessary to return to the relevant passages in the speeches.
+In relation to the nature of the causal link, Lord Lowry described the connection in terms of continuing homelessness.
+On his approach, homelessness was a condition which necessarily continued unless and until non temporary or settled accommodation was obtained.
+That approach was however disapproved by the House of Lords in the case of R v Brent London Borough Council, Ex p Awua [1996] AC 55, decided under the 1985 Act.
+Applying the definition of homeless, a person could cease to be homeless even if he or she was not in settled accommodation.
+It was confirmed that the necessary connection between the deliberate conduct required by the definition of becoming homeless intentionally and the applicants homelessness at the time of the inquiry was causal.
+The current homelessness had to have been caused by the applicants earlier intentional conduct.
+A causal connection would not exist where there had been an intervening period in settled accommodation, but the House of Lords reserved their opinion as to whether that was the only method by which the causal connection could be broken.
+As I shall explain, in later cases in the High Court and the Court of Appeal a variety of other circumstances have been held to have broken the causal connection.
+One of the questions arising in the present appeal is whether that is indeed possible.
+Four other aspects of the evolution of the legislation require to be borne in mind when considering authorities decided under the earlier legislation, such as Din.
+First, under the 1977 Act, a person was homeless if he had no accommodation which he and his family were entitled to occupy, by virtue of some interest, court order, express or implied licence or statutory right to occupy: section 1(1).
+There was no reference in the definition of homelessness to whether or not it was reasonable for him to continue to occupy the accommodation to which he was entitled.
+Thus in R v Hillingdon London Borough Council, Ex p Puhlhofer [1986] AC 484, the House of Lords decided that a family were not homeless within the meaning of the 1977 Act, however intolerable their living conditions were.
+There was no requirement that their accommodation be appropriate or reasonable, as long as it could properly be described as accommodation and was available for them to occupy.
+Parliament reacted to the Puhlhofer decision by inserting new provisions into the Housing Act 1985, Part III of which had replaced the 1977 Act.
+Most importantly for present purposes, it was provided that a person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy: section 58(2A) of the 1985 Act, as inserted by section 14(2) of the 1986 Act.
+Equivalent provision is now made by section 175(3) of the 1996 Act.
+As was observed in Awua at p 67, this produced symmetry between the concepts of homelessness and becoming homeless intentionally.
+Secondly, in deciding whether it would have been reasonable for the applicant to continue to occupy accommodation, for the purpose of applying the definition of becoming homeless intentionally, the 1977 Act did not require the authority to take any particular matters into account, other than to have regard to guidance given by the Secretary of State (section 12).
+They were also permitted to have regard to the general circumstances prevailing in relation to housing in the district (section 17(4)).
+In Din, it was accepted that the authority were entitled to conclude that it would have been reasonable for the appellants to have continued to occupy the accommodation in question until the landlord obtained an order for possession, notwithstanding that the appellants could not afford the accommodation and had mounting arrears of rent and rates.
+That concession was effectively endorsed by the majority of the House of Lords.
+Under the 1996 Act, however, section 177(3) enables subordinate legislation to be made, specifying matters to be taken into account in determining whether it would have been reasonable for a person to continue to occupy accommodation.
+Such legislation now specifies that account is to be taken of whether or not the accommodation is affordable for that person: Homelessness (Suitability of Accommodation) Order 1996 (SI 1996/3204).
+Guidance issued by the Secretary of State also now makes it clear that the question whether an order for possession has been obtained should not be regarded as critical, where (put shortly) the landlord has given notice and there would be no defence to an application for a possession order: Department for Communities and Local Government, Homelessness Code of Guidance for Local Authorities (2006), para 8.32.
+Thirdly, in Birmingham City Council v Ali the House of Lords considered the meaning of the requirement introduced after Puhlhofer, and now set out in section 175(3) of the 1996 Act (the definition of homelessness), that a person is not to be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy: a form of words which also appears (subject to a change of tense) in the definition of becoming homeless intentionally in section 191(1).
+The question arose in the Birmingham case whether what had to be considered was the reasonableness of continuing to occupy the accommodation for another night, or for the foreseeable future, or indefinitely.
+The House of Lords held that both sections 175(3) and 191(1) looked to the future as well as to the present (para 36).
+A person was homeless if he had accommodation which it was not reasonable for him to continue to occupy for as long as he would have to occupy it if the local authority did not intervene (para 37).
+There would be cases where an applicant occupied accommodation which it would not be reasonable for him to continue to occupy on a long term basis, as he would have to do if the authority did not accept him as homeless, but which it would not be unreasonable to expect him to continue to occupy for a short period while the authority investigated his application and rights, and even thereafter while they looked for accommodation to satisfy their duty under section 193 (para 42).
+Fourthly, the 1996 Act introduced, in section 202, the right to request a review of the authoritys decision.
+This is a full review of the merits of the application, rather than a consideration of whether the original decision was flawed: Mohammed v Hammersmith and Fulham London Borough Council [2001] UKHL 57; [2002] 1 AC 547, para 26.
+The review is conducted on the basis of the circumstances existing at the date of the review: Mohammed, para 25; Banks v Kingston upon Thames Royal London Borough Council [2008] EWCA Civ 1443; [2009] PTSR 1354, para 71.
+With that overview of the legislation in mind, it is now necessary to consider in greater detail the provisions of the 1996 Act which are central to the appeal.
+The 1996 Act
+Section 193(1) provides: This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.
+In terms of that provision, the authority have to be satisfied of three matters: that the applicant is homeless, that he is eligible for assistance, and that he has a priority need.
+They must also be not satisfied of one further matter: that the applicant became homeless intentionally.
+Homelessness is defined by section 175, which provides: (1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he (a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court, (b) has an express or implied licence to occupy, or (c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession. (2) A person is also homeless if he has accommodation but (a) he cannot secure entry to it, or (b) it consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and to reside in it. (3) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy. (4) A person is threatened with homelessness if it is likely that he will become homeless within 28 days.
+As I have explained, continue to occupy, in section 175(3), means continue to occupy for as long as he would have to occupy it if the local authority did not intervene: Birmingham City Council v Ali.
+Becoming homeless intentionally is defined by section 191(1): (1) A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy. (2) For the purposes of subsection (1) an act or omission in good faith on the part of a person who was unaware of any relevant fact shall not be treated as deliberate. (3) A person shall be treated as becoming homeless intentionally if (a) he enters into an arrangement under which he is required to cease to occupy accommodation which it would have been reasonable for him to continue to occupy, and (b) the purpose of the arrangement is to enable him to become entitled to assistance under this Part, and there is no other good reason why he is homeless.
+Given the symmetry between section 175 and section 191, it can be inferred that the words continue to occupy are intended to be interpreted so as to enable the provisions to operate harmoniously together.
+They cannot however be interpreted in an identical manner in both contexts.
+As Lady Hale explained in the Birmingham case at paras 37 40, there can be circumstances in which a person is homeless, within the meaning of section 175, because it would not be reasonable for him to continue to occupy his current accommodation, but in which it may nevertheless be reasonable for him to stay where he is while the authority consider his application and look for more suitable accommodation.
+The question under section 191(1) is therefore whether it would have been reasonable for the person to continue to occupy the accommodation for as long as he would occupy it while the authority considered his application and, if appropriate, looked for more suitable accommodation.
+As I have explained, the effect of the requirement in section 193(1), and its statutory predecessors, that the authority must not be satisfied that the applicant became homeless intentionally has caused difficulties of interpretation, linked to difficulties in construing the meaning of homelessness.
+The purpose of the requirement is however not difficult to discern.
+As was explained by Lord Lowry in Din (at p 679), and as counsel for the appellant emphasised in the present case, it is designed to prevent queue jumping by persons who, by intentionally rendering themselves homeless, would (in the absence of such a provision) obtain a priority in the provision of housing to which they would not otherwise be entitled.
+Consistently with that rationale, it cannot be intended that an applicant is to be disqualified for accommodation if he has ever, at any time in his life, become intentionally homeless.
+For example, an elderly man who becomes homeless when his care home is closed cannot be intended to be denied assistance merely because, 60 years earlier, he was evicted from his student digs for holding rowdy parties.
+As counsel for the appellant submitted, the homelessness with which the words became homeless intentionally are concerned must be the homelessness which the authority have found to exist: is homeless and became homeless must refer to the same current state of being homeless.
+It is therefore in relation to the current state of being homeless that the question has to be answered, did the applicant become homeless intentionally?
+On the other hand, section 193(1) cannot be concerned only with the reason for the loss of accommodation which the applicant occupied immediately before he became homeless.
+If that were its effect, the legal consequences of becoming homeless intentionally could readily be avoided by obtaining temporary accommodation, so that the applicant ceased for a time to be homeless, and then waiting to be evicted from it, so bringing about a state of homelessness consequent on the involuntary loss of that accommodation.
+The aim of the provisions relating to intentional homelessness would then be circumvented.
+Section 193(1) must therefore be understood as being concerned with the question whether the applicants current homelessness has been caused by intentional conduct on his part, in consequence of which he ceased to occupy accommodation which was available for his occupation and which it would have been reasonable for him to continue to occupy: either the accommodation which he was occupying immediately before he became homeless, or previous accommodation.
+Whether the applicant became homeless intentionally thus depends in the first place on the application of the definition of becoming homeless intentionally in section 191(1): in short, on whether he deliberately did or failed to do anything in consequence of which he ceased to occupy accommodation meeting the requirements of that provision.
+If that question is answered in the affirmative, the further question then arises under section 193(1) whether the applicants current homelessness was caused by that intentional conduct.
+Dyson v Kerrier District Council
+These two distinct causal questions were identified by Brightman LJ, delivering the judgment of the Court of Appeal, in Dyson v Kerrier District Council [1980] 1 WLR 1205, a decision which has been repeatedly endorsed by the House of Lords.
+Referring to the predecessor provision of section 191(1) of the 1996 Act, namely section 17(1) of the 1977 Act, he said at pp 1214 1215: This subsection is dealing with cause and effect.
+The subsection states the effect first.
+The specified effect is the state of being homeless.
+The subsection specifies that effect and then describes a particular cause which, if it exists, requires the effect to be treated as intentional.
+The subsection therefore means a person becomes homeless intentionally if he deliberately has done or failed to do anything in consequence of which he has ceased to occupy accommodation which was available for his occupation and which it would have been reasonable for him to continue to occupy. (original emphasis)
+So understood, two separate questions arise concerning causation.
+One arises, under what is now section 191(1) of the 1996 Act, in respect of what Brightman LJ described as the cause: the persons ceasing to occupy accommodation which he could reasonably have continued to occupy must be the consequence of his deliberate act or omission.
+The second arises, under what is now section 193(1), in respect of what Brightman LJ described as the effect: the homelessness which the authority have found to exist must be the consequence of that intentional conduct.
+In other words, section 193(1) is to be construed as meaning: This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that [he is homeless because] he became homeless intentionally.
+The second causal question has to be understood as being implicit if absurd consequences are to be avoided.
+The elderly man in my example, who is homeless after his care home closes, is undoubtedly someone who, in his student days, did something in consequence of which he ceased to occupy accommodation which was available for his occupation and which it would have been reasonable for him to continue to occupy.
+The causal question arising under section 191(1) must therefore be answered in the affirmative.
+But, if that were the only causal question which arose, the legislation would have absurd results.
+Absurdity is avoided by asking the second question, which arises under section 193(1): the authority are satisfied that he is homeless following the closure of the home, but cannot be satisfied that he became homeless intentionally, since his homelessness was not caused by his holding rowdy parties in his student digs.
+He would have been homeless following the closure of the home in any event.
+On the other hand, in my example of the person who intentionally gave up his accommodation and moved into temporary accommodation and waited to be evicted, both questions would be answered in the affirmative.
+He deliberately did something in consequence of which he ceased to occupy accommodation which was available for his occupation and which it would have been reasonable for him to continue to occupy.
+The causal test under section 191(1) is therefore satisfied, even though he did not at that stage become homeless.
+When he did become homeless, following his eviction from the temporary accommodation, he could properly be said under section 193(1) to have become homeless intentionally, since the effective cause of his homelessness was his previous intentional conduct, but for which he would not be homeless.
+That conduct was a but for cause of his homelessness, and no unconnected event had intervened to break the causal connection.
+These points are illustrated by the decision in Dyson v Kerrier District Council.
+The case was one where the applicant had surrendered the tenancy of her flat in Huntingdon in October 1978 after taking a temporary let of a cottage in Cornwall.
+Following the expiry of the let in March 1979, she was evicted from the cottage in May of that year.
+The contention that she was unintentionally homeless, having been evicted from the cottage, was acknowledged to be a formidable argument on the literal wording of the statute.
+As was pointed out in Awua, however, such a construction would enable people to jump housing queues by making themselves intentionally homeless at one remove.
+That result was avoided by giving the legislation a purposive construction and asking whether the applicants current state of homelessness had been caused by conduct falling within the scope of what is now section 191(1).
+Brightman LJ stated (p 1215): The district council were entitled to reach the conclusion that the plaintiff became homeless on May 25, 1979 [the date of her eviction], intentionally because she deliberately had done something (surrendered the Huntingdon tenancy) in consequence of which she ceased to occupy accommodation (the Huntingdon flat) which was available for her occupation and which it would have been reasonable for her to continue to occupy; and that, therefore, if she had not done that deliberate act she would not have become homeless on May 25.
+It is to be noted that the court applied a but for test of causation: if she had not done that deliberate act she would not have become homeless.
+Din v Wandsworth London Borough Council
+A different type of situation was considered by the House of Lords in the case of Din v Wandsworth London Borough Council.
+The appellants in that case fell into arrears of rent and rates as a consequence of the failure of their business, and left their flat in Wandsworth in August 1979 after a distress warrant for non payment of rates was served on them.
+They obtained temporary accommodation in Upminster, where they lived for four months before being required to leave.
+When they left the Wandsworth flat, they were not at that time threatened with eviction.
+They would however have been evicted by December 1979, when they left the Upminster accommodation and applied for accommodation under the 1977 Act.
+In considering the speeches in the House of Lords, it is relevant to note that, in a number of respects, the case was not approached in the way in which it would now be approached under the 1996 Act.
+First, the appellants did not dispute that the authority were entitled to find that it would have been reasonable for them to continue to occupy the Wandsworth flat, notwithstanding that they could not afford it.
+That concession presumably reflected the prevailing understanding at that time of the law then in force, although there are later decisions to the contrary effect, including R v Hillingdon London Borough Council, Ex p Tinn (1988) 20 HLR 205 and R v Camden London Borough Council, Ex p Aranda (1998) 30 HLR 76.
+As I have explained, subordinate legislation made under section 177(3) of the 1996 Act now provides (read short) that in determining whether it would have been reasonable for a person to continue to occupy accommodation, account is to be taken of whether or not the accommodation is affordable for that person.
+The likelihood of eviction within a few months would now be a further factor to be taken into account in considering whether it was reasonable for the appellants to continue to occupy the flat, following the Birmingham case; but that matter might well have been viewed differently prior to the amendments to the legislation which were made following Puhlhofer.
+Secondly, the case was argued on the basis that there was an unbroken period of homelessness beginning when the appellants left the Wandsworth flat, since the accommodation in Upminster was intended from the outset to be temporary.
+That was not a correct understanding of the law, as became particularly apparent after Awua.
+As Lord Bridge of Harwich pointed out in Din at p 684, the appellants had at least an express or implied licence to occupy the Upminster accommodation, and therefore were not homeless as defined in section 1 of the 1977 Act.
+In Lord Bridges words, the appeal was therefore decided on a basis accepted as common ground which involved an erroneous conclusion of law from undisputed facts (p 684).
+The argument presented on behalf of the appellants, as reported, did not adopt the two stage approach to causation which the Court of Appeal had applied in Dyson.
+Instead, it focused on the definition of becoming homeless intentionally in section 17(1) of the 1977 Act.
+Following the approach adopted by Donaldson LJ in his dissenting judgment in the Court of Appeal (unreported), 23 June 1981; Court of Appeal (Civil Division) Transcript No 372 of 1981, it was argued that the necessity for a causal connection between leaving the Wandsworth flat and the appellants state of being homeless was implicit in the requirement under section 17(1) that it must have been reasonable to continue to occupy the flat.
+Continue to occupy, it was argued, meant continue to occupy and still to occupy.
+That construction of the words continue to occupy cannot, however, be reconciled with the terms of the provision.
+The majority of the House of Lords approached the case on the basis of the arguments advanced.
+Lord Wilberforce construed the relevant provisions of the 1977 Act as being concerned with the cause of the homelessness which was conceded to have arisen at the time when the appellants left their accommodation in Wandsworth and continued thereafter: If one takes the words of the statute, the council has to be satisfied that the applicants became homeless intentionally (section 17).
+Under section 4(2)(b) their duty is limited to advice and assistance if they are satisfied . that [they] became homeless . intentionally.
+The time factors here are clearly indicated: at the time of decision (the present), the local authority must look at the time (the past) when the applicants became homeless, and consider whether their action then was intentional in the statutory sense.
+If this was the right approach there could only be one answer: when the Dins left 56, Trinity Road [the Wandsworth accommodation] their action was intentional within section 17, and the council was entitled to find that it would have been reasonable for them to continue to occupy 56, Trinity Road. (pp 666 667: original emphasis)
+Lord Wilberforce gave a number of reasons at pp 667 668 for rejecting the appellants construction of section 17(1).
+The first reason reflected the wording of the provision: To achieve the result desired by the appellants it is either necessary to distort the meaning of in consequence of which he ceases to occupy (section 17(1)) or to read in a number of words.
+These are difficult to devise.
+Donaldson LJ suggests adding at the end of section 17(1) and still to occupy: the appellants, as an alternative to the date of his application.
+Both are radical and awkward reconstructions of the section.
+The second reason was that such an interpretation of the words continue to occupy was not called for by any purposive approach.
+The third reason was the following: The appellants interpretation adds greatly to the difficulties of the local authoritys task in administering this Act.
+It requires the authority, as well as investigating the original and actual cause of homelessness, to inquire into hypotheses what would have happened if the appellants had not moved, hypotheses involving uncertain attitudes of landlords, rating authorities, the applicants themselves, and even intervening physical events.
+The latter observations were a response to the mistaken argument that section 17(1) required the authority to determine not merely whether the applicants ceasing to occupy the accommodation was the consequence of his intentional action, but in addition whether he would otherwise have continued to occupy that accommodation until the time of the authoritys decision.
+They were not concerned with causal issues properly arising under the legislation.
+Lord Wilberforce accepted at p 667 that the authority had to investigate the actual cause of homelessness, and endorsed the decision in Dyson as an illustration of a causal connection.
+Establishing such a connection involves asking in the first place, in Brightman LJs words, whether, if the applicant had not done that deliberate act, she would not have become homeless.
+That might be described as inquiring into a hypothesis, but is inherent in the nature of an inquiry into causation.
+It cannot therefore have been Lord Wilberforces intention to bar such an inquiry.
+It would also be necessary to consider whether the chain of causation connecting the intentional action to the applicants homelessness had been broken by an intervening event, in circumstances where that was a live issue.
+That approach is consistent not only with an ordinary understanding of causation but also with the rationale of the concept of intentional homelessness, namely to prevent a person from obtaining a priority in the provision of accommodation to which he would not otherwise be entitled.
+In that regard, Lord Wilberforce accepted that the connection would be broken if the applicant obtained settled accommodation during the intervening period.
+Lord Fraser of Tullybelton gave a concurring speech, in which he made clear his acceptance of the need for a continuing causal connection between the deliberate conduct resulting in the applicants ceasing to occupy accommodation which it would have been reasonable for him to continue to occupy, on the one hand, and his homelessness at the time of the inquiry, on the other hand.
+Addressing the argument that, even if the Dins had not left the Wandsworth flat when they did, they would in any event have been evicted by the date of the authoritys inquiry, he stated: Be it so.
+The fact remains that the appellant's homelessness in December 1979 was a consequence of his deliberate act of moving out on August 28.
+I accept that for section 17(1) to be applicable there must be a continuing causal connection between the deliberate act in consequence of which homelessness resulted and the homelessness existing at the date of the inquiry.
+Such a causal connection exists in this case, and that being so it is immaterial to inquire whether he might in other circumstances have been homeless then for other reasons. (emphasis supplied)
+Given his conclusion on the facts, Lord Fraser must have considered that a causal connection between deliberate conduct falling within section 17(1) of the 1977 Act and the current state of homelessness was not affected by circumstances which might have occurred but did not in fact occur.
+On the other hand, Lord Fraser evidently accepted that a causal connection could be interrupted by an event which actually occurred.
+It is important to bear in mind Lord Frasers acceptance of the need for a continuing causal connection when considering an earlier passage in his speech: It is . irrelevant for an applicant who is homeless at the date of his application, and who became homeless intentionally, to show that he would have been homeless by that date in any event.
+The material question is why he became homeless, not why he is homeless at the date of the inquiry.
+If he actually became homeless deliberately, the fact that he might, or would, have been homeless for other reasons at the date of the inquiry is irrelevant.(p 671) This passage envisages a state of homelessness continuing between the time when the applicant became homeless intentionally and the date of the inquiry.
+In order for the passage to be read consistently with the passage cited previously, it must also envisage a situation where nothing has occurred to break the continuing causal connection between the initial cause of homelessness and the homelessness existing at the date of the inquiry.
+Granted those premises, what is said is uncontroversial.
+Lord Lowry, in a further concurring speech, also accepted at p 676 the need for a causal nexus between the intentional action and the homelessness subsisting at the time of the inquiry.
+He gave the example of the cessation of a period of homelessness following a deliberate act falling within section 17(1) and the later inception of another period of homelessness, following a period in non temporary (or settled) accommodation.
+As he made clear at p 678, he considered section 17(1) to be concerned with occupation other than temporary occupation: in his view, a person continues to be homeless while he enjoys temporary occupation.
+That aspect of his reasoning is however inconsistent with the later decision of the House of Lords in Awua.
+Lord Russell of Killowen, in a dissenting speech, explained at p 673 the significance of the decision in Dyson: a case which, as he observed, was the opposite of the Dins case: If in the past he has become homeless intentionally and but for that he would not now be homeless (as in the Dyson case [1980] 1 WLR 1205) well and good: that is why he is homeless now.
+But if on the facts as established in the present case he would be homeless now in any event, the past circumstances in which the homelessness originated appear to me to be no longer of any relevance: the past actions of the applicant are spent. (pp 673 674)
+Lord Bridge, in his dissenting speech, identified the two different causal questions which arise in the application of the legislation.
+Referring to the question of whether the applicant became homeless intentionally, he stated: Thus, on the true construction of sections 3 and 4 and in the application of section 17(1), the third question the housing authority must ask and answer may be expanded into the following form: Is the applicant's present homelessness the result of a deliberate act or omission on his part in consequence of which he ceased to occupy accommodation which was available for his occupation and which it would have been reasonable for him to continue to occupy? (p 681) As Lord Bridge explained, this construction does not require any words to be read into the legislation: Section 17 is simply concerned to define what is meant by becoming homeless intentionally.
+But in construing the phrases whether he became homeless intentionally and that he became homeless intentionally in the context in which they are found in sections 3 and 4, it would be absurd to hold that the housing authority are at liberty to rely on any past act or omission on the part of the applicant which satisfies the section 17 formula but which is not causally related to the applicant's present state of homelessness. (p 681)
+Later authorities on causation
+There are a number of later authorities which indicate how the law relating to causation in this context has developed since Din: how, in particular, courts have applied the principle that there must be a continuing causal connection between the deliberate act in consequence of which the applicant ceased to occupy accommodation which it would have been reasonable for him to continue to occupy, and the homelessness existing at the date of the inquiry.
+The more recent authorities also illustrate a range of circumstances in which it has been accepted that the causal nexus might be broken.
+One group of cases, of only indirect relevance in the present context, concerns the causal connection, under section 191(1) of the 1996 Act and its predecessors, between the applicants deliberate act or omission and the cessation of occupancy of accommodation.
+An example is the case of R v Hammersmith and Fulham London Borough Council, Ex p P (1989) 22 HLR 21, where the applicants had fled Belfast after being ordered to leave by the IRA, on pain of death, as a result of their anti social behaviour.
+The court held that the authority were entitled to conclude that the applicants were intentionally homeless, since the threat by the IRA was a consequence of the applicants conduct, not a novus actus interveniens breaking the chain of causation between their conduct and their homelessness.
+Other cases, of more direct relevance in the present context, have concerned the causal connection between the current state of being homeless and the deliberate act or failure to act in consequence of which there was a prior cessation of occupancy of settled accommodation.
+First, the case of R v Basingstoke and Deane Borough Council, Ex p Bassett (1983) 10 HLR 125 concerned an applicant who had given up the tenancy of a house in Basingstoke when she and her husband decided to emigrate to Canada.
+They moved to Canada, but their application to stay permanently was refused, and they had to return to England, where they lived in temporary accommodation in Bramley.
+The marriage then broke down as a result of the husbands behaviour, and the applicant left the Bramley accommodation and applied for accommodation as a homeless person.
+Taylor J, relying on Lord Frasers acceptance in Din of the need for a continuing causal connection, held that the applicant had not become homeless intentionally.
+Her homelessness was not due to her having given up the secure accommodation in Basingstoke and moved into unsettled accommodation: it was due to the break up of her marriage.
+Some clarification of the nature of the necessary causal connection was provided by the House of Lords in R v Brent London Borough Council, Ex p Awua, in a speech delivered by Lord Hoffmann with which the other members of the House agreed.
+The principal point decided was that temporary accommodation was nonetheless accommodation within the meaning of the legislation, so that a person who was entitled to occupy temporary accommodation was not homeless.
+In the Dyson case, therefore, Miss Dyson became homeless, as Brightman LJ recognised, when her temporary accommodation in the cottage in Cornwall ended, not when she surrendered the tenancy of her flat in Huntingdon.
+The case had been correctly decided on the basis that her deliberately leaving the flat was the cause of her subsequent homelessness in Cornwall.
+In the case of Din, Lord Lowry had been in error in considering that homelessness persisted until it was interrupted by obtaining a settled residence.
+The other members of the House had analysed the case in terms of causation.
+What persisted until the causal connection was broken was the intentionality, not the homelessness.
+Lord Hoffmann accepted that the causal connection would be broken by the occupation of a settled residence, as opposed to what was known from the outset to be only temporary accommodation, but expressly reserved his opinion as to whether that was the only method by which the causal connection could be broken.
+Another situation in which the causal connection might be broken had been accepted in Bassett.
+Another was accepted in the case of R v Harrow London Borough Council, Ex p Fahia.
+The case concerned an applicant who was found to have deliberately procured her own eviction from accommodation in Harrow of which she was the tenant.
+She was then provided by the authority with temporary accommodation in a guest house, where she remained for over a year.
+Her housing benefit was then reduced by half, on the basis that her rent was too high.
+The landlord then told her that she would be evicted.
+At first instance, Mr Roger Toulson QC, sitting as a Deputy Judge, held that the authority had erred in failing to consider whether the causal connection between the applicants deliberately procuring her eviction from her accommodation in Harrow, and her homelessness on being evicted from the guest house, had been broken by the reduction in her benefit: (1996) 29 HLR 94.
+In his view, a good example of the causal connection being interrupted, other than by a period in settled accommodation, would be if the applicants accommodation in the guest house had been burned down; or if, in Dyson's case, the let of the cottage had been brought prematurely to an end by the cottage being destroyed by fire.
+As the judge observed, Dysons case had been decided as it was because, when the let came to an end, the fact that Miss Dyson was thereafter homeless was caused by her initial conduct.
+If, on the other hand, somebody went into a property for a three month period but lost it after 14 days because the premises were burnt down, then in the judges view, applying the ordinary common sense test of causation, one would say that the cause of the homelessness was the fire.
+The judge considered Ex p Bassett to be another illustration of the same principle.
+That decision was upheld by the Court of Appeal: (1997) 29 HLR 974.
+Roch LJ, with whose judgment Aldous and Leggatt LJJ agreed, stated at pp 980 981 his agreement with the judge that the causal connection could be broken by events other than the acquisition of a settled residence, and that Bassett's case was an example of such a situation.
+On a further appeal to the House of Lords, the point was conceded: [1998] 1 WLR 1396, 1401.
+Another example is the case of R v Camden London Borough Council, Ex p Aranda (1997) 30 HLR 76.
+The applicant and her husband surrendered their tenancy of a house in Camden and moved to Colombia, where they obtained accommodation.
+On arrival in Colombia, the applicant was deserted by her husband.
+With no prospect of employment in Colombia, and no entitlement to social security benefits, she returned to Camden and applied for housing.
+It was held by the Court of Appeal that the causal connection between her deliberately giving up the accommodation in Camden, and her homelessness after leaving the accommodation in Colombia, had been broken by her husbands desertion.
+A further example is the case of R v Hackney London Borough Council, Ex p Ajayi (1997) 30 HLR 473.
+The applicant in that case left settled accommodation in Nigeria to come to the United Kingdom, where she lived in overcrowded short term accommodation.
+She was given notice to leave after she became pregnant.
+She challenged the authoritys decision that she had become homeless intentionally as a result of having left the accommodation in Nigeria, and argued that the true cause of her homelessness was her pregnancy.
+Having reviewed the authorities, Dyson J stated at p 478 that the fundamental question was whether there was a continuous chain of causation between the loss of the last settled accommodation and the present state of homelessness.
+He added at p 479: In some cases, the cause closest in point of time will be regarded as the effective cause.
+A good example of this might well be the case discussed in Ex p Fahia (1996) 29 HLR 94, 102, of the premises occupied on a short letting which are burnt down, thereby rendering the occupant homeless.
+In the particular circumstances of the case, the authority had been entitled, in the judges view, to decide that the effective cause of the applicants homelessness was her action in leaving Nigeria.
+A final example is the case of Stewart v Lambeth London Borough Council [2002] EWCA Civ 753; [2002] HLR 747.
+The applicant ceased to occupy his council flat when he was convicted of a drugs offence and sentenced to imprisonment.
+While in prison, he was evicted from the flat for non payment of rent.
+He had arranged with his sister that the rent should continue to be paid while he was in prison, but she failed to implement the arrangement.
+It was held that the causal chain connecting his deliberate conduct in committing the offence to his homelessness on release from prison had not been broken.
+It was accepted that the position might have been different if the arrangement had been implemented for a time but had then broken down.
+The cases of Bassett, Fahia and Aranda are capable of being explained, as Lord Carnwath suggests, on the basis that the immediate cause of the applicants homelessness in each case was an event unconnected to the temporary nature of that accommodation.
+That aspect of the cases is not however sufficient in itself to provide a satisfactory explanation of the decisions.
+If, for example, an applicant deliberately gives up a secure tenancy, and takes on a short lease of temporary accommodation following which she is likely to be homeless, as in the case of Dyson, why should it necessarily be decisive whether her occupation of that accommodation comes to an end on the expiry of the lease, on the one hand, or one day earlier, as the result of marital breakdown, on the other hand? The importance of the marital breakdown, so far as the purposes of the legislation are concerned, is not that it resulted in a slightly earlier cessation of occupation of temporary accommodation than would otherwise have been the case.
+It is important because it is an involuntary cause of homelessness which may be regarded in certain circumstances as interrupting the causal connection between the applicants current homelessness and her earlier conduct, for example in surrendering a secure tenancy.
+One situation where that is so is where, applying the words of Brightman LJ in the case of Dyson which were cited in para 30 above, it cannot reasonably be said of the applicant that if she had not done that deliberate act she would not have become homeless.
+Giving the legislation a purposive application, she has not therefore jumped the queue as a result of her earlier decision to surrender the tenancy.
+That might be the position, for example, in a case where a marriage broke down at some point after the couple had left secure accommodation, if it appeared that the marriage would probably have broken down, and the applicant would have been rendered homeless, in any event.
+The ordinary requirement that the cause of an event should be a sine qua non of that event would not then be satisfied.
+Another situation where deliberate conduct in giving up earlier accommodation may not be regarded as the cause of current homelessness is where homelessness would probably not have occurred in the absence of some other, more proximate, cause, which arose independently of the earlier conduct: where, as it is sometimes put, there is a novus actus interveniens.
+That is again consistent with the purpose of the provisions concerning intentional homelessness, which is to prevent queue jumping, not to deter people from moving out of secure accommodation.
+As counsel for the appellant submitted, that purpose does not require the adverse treatment of those who move out of secure accommodation and are subsequently rendered homeless by an event which is unconnected to their own earlier conduct, and in the absence of which homelessness would probably not have occurred.
+That was the position in Fahia, where the applicant had given up secure accommodation, but her subsequent eviction from temporary accommodation was the result of a reduction in housing benefit.
+It was true, in relation to her giving up the secure accommodation, that if she had not done that deliberate act she would not have become homeless.
+Nevertheless, she could have remained indefinitely in the temporary accommodation if her housing benefit had not been cut: an event which was unconnected to her earlier conduct.
+Her giving up the secure accommodation was therefore properly regarded as a background circumstance, rather than as the cause of her homelessness.
+The cases of Bassett and Aranda can also be explained on that basis.
+In the case of Stewart, on the other hand, the proximate cause of the applicants homelessness the non payment of rent when he was in prison was connected to the conduct which brought about his imprisonment.
+In Ajayi, the precariousness of the applicants accommodation after she left Nigeria appears to have been sufficient to maintain a connection between that conduct and her later homelessness.
+Conclusions
+As I have explained, the case of Din concerned a relatively narrow issue, namely the interpretation of the definition of becoming homeless intentionally, in section 17(1) of the 1977 Act.
+The House of Lords decision that the elements of that definition were to be considered as at the time when the applicant ceased to occupy accommodation meeting the requirements of the definition appears to me to have been correct.
+The decision as to the tempus inspiciendum remains good law in relation to the corresponding definition in section 191(1) of the 1996 Act.
+It also remains true that, if the definition is satisfied as at that point in time, it is immaterial under section 191(1) to consider subsequent hypothetical events.
+It is however necessary to note that, following the amendment of the legislation after Puhlhofer, and the interpretation of the amended legislation in Birmingham City Council v Ali, the length of time for which the accommodation would be available may be relevant to the question whether it would have been reasonable, at the time when the applicant ceased to occupy it, for him to have continued to occupy it.
+It is also necessary to note that, following Awua, the applicant need not become homeless upon ceasing to occupy the accommodation with which the definition in section 191(1) is concerned.
+The conclusion in Din that there must be a continuing causal connection between the deliberate act satisfying the definition now contained in section 191(1) and the homelessness existing at the date of the inquiry, also remains good law.
+The question is whether that homelessness has been caused by conduct meeting the requirements of section 191(1), so that the applicant is to be regarded as having become homeless intentionally for the purposes of sections 190(1) and 193(1).
+As counsel for the appellant submitted in the present case, the legislation is concerned with the applicants homelessness at the time of the authoritys inquiry, and therefore with the intentionality of that state of homelessness.
+As counsel submitted, any consideration of intentional homelessness arises after it has been decided that a person is homeless, and looks backwards to determine the operative cause of that homelessness.
+That approach is consistent with the object of the provisions concerning intentional homelessness, namely to prevent queue jumping by persons who, by intentionally rendering themselves homeless, would (in the absence of such a provision) obtain a priority in the provision of housing to which they would not otherwise be entitled.
+It would not be consistent with that purpose to deny applicants a priority which had not been affected by their intentional conduct.
+Din was an early case in the history of the law on this subject.
+The decision on the facts reflected the concessions made and the state of the law at that time.
+As I have explained, a case on similar facts would not now be approached in the same way.
+Nevertheless, Din provided a foundation for the further development of the law.
+Later case law has provided examples of a variety of events which might be capable of interrupting the causal connection between the deliberate act in consequence of which homelessness resulted, and the homelessness existing at the date of the inquiry: marital breakdown (Bassett; Aranda), a cut in housing benefit (Fahia), and the breakdown of an arrangement for the payment of rent (Stewart).
+These examples all concern actual, not hypothetical, events.
+These decisions are consistent with what was said about causation in Din, leaving out of account the aspect of Lord Lowrys reasoning which was disapproved in Awua.
+As counsel for the appellant submitted, the decision whether an applicant is intentionally homeless depends on the cause of the homelessness existing at the date of the decision.
+That has to be determined having regard to all relevant circumstances and bearing in mind the purposes of the legislation.
+As I have indicated, a later event constituting an involuntary cause of homelessness can be regarded as superseding the applicants earlier deliberate conduct, where in view of the later event it cannot reasonably be said that, but for the applicants deliberate conduct, he or she would not have become homeless.
+Where, however, the deliberate conduct remains a but for cause of the homelessness, and the question is whether the chain of causation should nevertheless be regarded as having been interrupted by some other event, the question will be whether the proximate cause of the homelessness is an event which is unconnected to the applicants own earlier conduct, and in the absence of which homelessness would probably not have occurred.
+The present case
+In the review decision letter, the writer began by identifying the appellants last settled accommodation, which he found was the room in the hostel.
+He considered whether the accommodation remained available for her occupation when she gave it up, and found that it did.
+He found that it would have been reasonable for her to continue to occupy it, notwithstanding her complaint about smells.
+In response to representations by the appellants solicitors that the appellant could not have remained in the hostel after having her baby, the writer added that, although the appellant was pregnant and the accommodation was for single people, all that meant was that it would have been reasonable for her to occupy it until she gave birth.
+He stated his conclusion by answering four questions: (1) Did the applicant deliberately do something or fail to do something? (2) Did the applicant cease to occupy the accommodation at [the hostel] in consequence of his (sic) deliberate act? (3) Was the accommodation at [the hostel] available for the applicant to occupy? (4) Was it reasonable for the applicant to continue to occupy the accommodation? These questions addressed the definition of becoming homeless intentionally in section 191(1) of the 1996 Act.
+The review officers finding that it would have been reasonable for the appellant to continue to occupy the accommodation until she gave birth was presumably made on the footing that she could have sought assistance from the authority in the meantime, and remained in the hostel while suitable arrangements were made to accommodate her and her baby.
+It is not apparent whether consideration was given to the question whether the authority could have considered an application and found suitable accommodation within the four months or so before the baby was due.
+That has not however been made a ground of challenge: on the contrary, it was conceded that the review officer was right to accept that the accommodation was reasonable for the appellant to continue to occupy until she gave birth.
+The decision was nevertheless deficient in the respect identified by those acting on behalf of the appellant, in that no consideration was given to the question whether the cause of her current state of homelessness was her surrender of her tenancy of the room in the hostel.
+If that question had been asked, it appears to me that only one answer to it was reasonably possible on the undisputed facts.
+As I have explained, the causal connection between an applicants current homelessness and her earlier conduct will be interrupted by a subsequent event where in the light of that event, applying the words of Brightman LJ in the case of Dyson, it cannot reasonably be said of the applicant that if she had not done that deliberate act she would not have become homeless.
+That is the position in the present case.
+The consequence of the appellants giving birth to her baby is that it cannot be said, in relation to her earlier conduct in leaving the hostel, that if she had not done that deliberate act she would not have become homeless.
+Nor can it be said that the policy underlying the provisions as to intentional homelessness, namely to prevent queue jumping, was applicable to her case.
+The birth of the baby meant that the appellant would be homeless, at the time when her case was considered, whether or not she had left the hostel when and for the reasons that she did.
+She had not therefore jumped the queue as a result of her earlier decision to surrender the tenancy.
+For these reasons I would allow the appeal.
+LORD NEUBERGER:
+At the conclusion of the oral argument, I was of the opinion that this appeal should be dismissed, because it seemed to me that we could only allow the appeal if we effectively departed from (in effect overruled) the decision of the House of Lords in Din (Taj) v Wandsworth London Borough Council [1983] 1 AC 657.
+I am now persuaded by Lord Reeds analysis that this appeal can and should be allowed for the reasons which he gives, which do not involve departing from Din, albeit that I would accept that we are distinguishing it on a fairly fine basis.
+The Boroughs case, which was accepted in both courts below, is based on the following propositions. (i) the appellant became homeless by vacating the flat in October 2011; (ii) she thereby became homeless intentionally, as found by the reviewing officer in the review letter of 31 January 2013; (iii) she should continue to be treated as having become intentionally homeless in October 2011; and (iv) she should only cease being so treated once she has been provided with permanent accommodation.
+As the courts below observed, this line of argument appears to be consistent with the majority view expressed by Lord Wilberforce, Lord Fraser and Lord Lowry in Din (Taj) v Wandsworth London Borough Council [1983] 1 AC 657.
+Din was a case concerned with the predecessor of Part VII of the 1996 Act, the Housing (Homeless Persons) Act 1977.
+However, section 17(1) of the 1977 Act was effectively identical to section 191(1) of the 1996 Act; and sections 4(3) and 4(5) of the 1977 Act were respectively very similar to sections 190(1) and 193(1) of the 1996 Act, and contained the same centrally important words satisfied that he became homeless intentionally.
+In those circumstances, I would agree with Lord Carnwath that, if this appeal could not be allowed without departing from Din, it should be dismissed.
+It has not been suggested that the decision of the majority in Din was arrived at per incuriam, and, although it might appear to some people to have been a somewhat harsh outcome, which may (and I mean may) not have been reached by this court today, that does not provide sufficiently strong grounds for departing from the decision.
+First, we should be very slow before departing from an earlier decision of this court or the House of Lords.
+In Fitzleet Estates Ltd v Cherry (Inspector of Taxes) [1977] 1 WLR 1345, the House of Lords had to consider a contention that it should depart from one of its earlier decisions, which had been reached some eleven years earlier by a majority of three to two.
+Lord Wilberforce (with whom Lord Salmon and Lord Keith agreed) said this at p 1349C F My Lords, in my firm opinion, the Practice Statement of 1966 was never intended to allow and should not be considered to allow such a course.
+Nothing could be more undesirable, in fact, than to permit litigants, after a decision has been given by this House with all appearance of finality, to return to this House in the hope that a differently constituted committee might be persuaded to take the view which its predecessors rejected.
+True that the earlier decision was by majority: I say nothing as to its correctness or as to the validity of the reasoning by which it was supported.
+That there were two eminently possible views is shown by the support for each by at any rate two members of the House.
+But doubtful issues have to be resolved and the law knows no better way of resolving them than by the considered majority opinion of the ultimate tribunal.
+It requires much more than doubts as to the correctness of such opinion to justify departing from it.
+Viscount Dilhorne took the same view at p 1350E H, saying that, even if he had thought the 1965 decision was wrong, I would not have departed from it, stressing the importance of the use of precedent as providing a degree of certainty and the orderly development of legal rules and the risk of differently constituted committees boxing and coxing (not his expression).
+Lord Edmund Davies also agreed, pointing out at p 1352A that the appellant simply submitted that [the 1965 decision] was wrong when delivered and that nothing has since happened to make right today what was wrong in 1965, and made it clear that this was not nearly enough to justify departing from the 1965 decision.
+Secondly, as Lord Hodge said in a very recent judgment in this court, with which Lord Clarke, Lord Wilson and Lord Toulson agreed, R (on the applications of ZH and CN) v London Borough of Newham and London Borough of Lewisham [2014] UKSC 62, [2014] 3 WLR 1548, para 53: [W]here Parliament re enacts a statutory provision which has been the subject of authoritative judicial interpretation, the court will readily infer that Parliament intended the re enacted provision to bear the meaning that case law had already established: Barras v Aberdeen Sea Trawling and Fishing Co Ltd [1933] AC 402, Viscount Buckmaster at pp 411 412.
+Lord Carnwath seems to have taken the same view at paras 83 88 and 95 97, and Lady Hale referred to Barras without disapproval at para 167, although I was somewhat less enthusiastic about it see at paras 143 148.
+As Mr Arden pointed out, the principle is also supported by Lord Lloyd speaking for the judicial committee in Lowsley v Forbes [1999] 1 AC 329, 340F G.
+Turning to the facts of this case, it must, of course, be accepted that the initial cause of the appellants homelessness was her deliberate act of vacating the flat at Lea Bridge House.
+If the issue had been whether the appellants homelessness at the date she vacated Lea Bridge House had been voluntary and deliberate, then that would be the end of the matter: no subsequent event, such as the birth of her daughter, could change the fact that it was.
+However, as the issue is whether the appellants homelessness as at the date of the review, 31 January 2013, was caused by her own deliberate act, the issue is, or at least is capable of being, more subtle.
+Once the appellant gave birth to her daughter, there could be said to have been a severing of what Lord Fraser of Tullybelton (who was in the majority in Din) characterised as a continuing causal connection between [her] deliberate act in consequence of which homelessness resulted and the homelessness existing at the date of the inquiry see Din at p 672.
+That is because, by the date of the relevant inquiry in this case, namely 31 January 2013, the applicant would have had to vacate the flat at Lea Bridge House, and therefore would have been homeless anyway, because she had given birth to a daughter eleven months earlier, and her tenancy of that flat limited the number of occupants to one person.
+In other words, even if the appellant had not voluntarily vacated the Lea Bridge House flat when she did, she would have been made homeless by 31 January 2013.
+A new event had intervened, so that it can no longer be said that, but for the appellant vacating voluntarily, she would have been in occupation of the Lea Bridge House flat in January 2013: she would not.
+This approach is consistent with the policy behind Part VII of the 1996 Act, as explained by Lord Lowry in Din at p 679.
+That is because it would mean that an applicant who had initially become deliberately homeless would be treated as deliberately homeless, and therefore as not entitled to jump the homelessness queue, until such time as she could show that, in the light of a subsequent specific event or series of events, she would on the balance of probabilities have become involuntarily homeless anyway.
+At that point she would no longer be treated as being deliberately homeless.
+If she were to be treated thereafter as being deliberately homeless, that would involve penalising her.
+Accordingly, I consider that the interpretation favoured by Lord Reed complies with the wording of the relevant provisions of, and with the purpose of, Part VII of the 1996 Act.
+With rather more hesitation, I also agree that his analysis and conclusion do not involve departing from the reasoning of the majority in Din.
+In this case, there is an undeniable later event which would have caused the applicant to become homeless anyway, namely the birth of her daughter, whereas in Din there was no such later causative event, merely a possibility that one might well have occurred.
+That is a rather narrow ground for distinguishing the earlier decision in Din, but I consider that it is justifiable in the circumstances.
+I have already mentioned that this conclusion is consistent with the policy of Part VII of the 1996 Act.
+In addition, as is stated in para 62 above, the decision in Din was reached at a relatively early stage of the homelessness law, and in the light of subsequent developments (including the more recent cases cited by Lord Reed and the fact that much of Lord Lowrys reasoning in Din was disapproved in R v Brent London Borough Council, Ex p Awua [1996] AC 55), it does not seem inappropriate to constrict the application of the decision.
+Thus, it is clear that a subsequent event such as permanent rehousing occurring after the deliberate homelessness can break the chain of causation, and it would seem inconsistent if an event such as what happened in this case did not have the same effect.
+That point is reinforced by the cases discussed in paras 47 54 above, which provide good examples of other circumstances which can break or restart the chain of causation in this field.
+Quite apart from all this, allowing this appeal on the ground explained by Lord Reed would, as already explained, be consistent with the correct test expressed in Din by Lord Fraser, who was one of the majority.
+Accordingly, while I understand, and have considerable sympathy with, Lord Carnwaths view to the contrary, I am in agreement with Lord Reed.
+LORD CARNWATH: (dissenting)
+For more than 30 years the majority decision in Din v Wandsworth LBC [1983] 1 AC 657 has been accepted as authority at the highest level for the proposition that under the homeless persons legislation (in the words of the headnote): in deciding whether the (applicants) became homeless intentionally, the housing authority had to look to the time of their action in leaving the accommodation they occupied and a subsequent hypothetical cause of homelessness did not supersede the actual cause
+represented by their action
+That result was thought by the majority to follow from the wording of the relevant provisions, under which the scope of the authoritys duty turned on an inquiry whether the applicant is homeless but whether he became homeless intentionally (section 4).
+As Lord Wilberforce said: The time factors here are clearly indicated: at the time of decision (the present), the local authority must look at the time (the past) when the applicants became homeless, and consider whether their action then was intentional in the statutory sense . (p 666H; see also p 671E per Lord Fraser, to like effect)
+The emphasis on actual rather than hypothetical causes of homeless was most clearly stated by Lord Fraser it is . irrelevant for an applicant who is homeless at the date of his application, and who became homeless intentionally, to show that he would have been homeless by that date in any event.
+The material question is why he became homeless, not why he is homeless at the date of the inquiry.
+If he actually became homeless deliberately, the fact that he might, or would, have been homeless for other reasons at the date of the inquiry is irrelevant. (p 671G) The same approach was reflected in Lord Wilberforces concern that the alternative would pose problems for authorities, who would be required as well as investigating the original and actual cause of homelessness, to inquire into hypotheses what would have happened if the appellants had not moved (p 667F) It was reflected also in the way in which Lord Lowry, having accepted that the act of becoming intentionally homeless must be causally linked to the homelessness at the time of the application to the authority, characterised the appellants argument, which he rejected Their argument necessarily disregards this aspect of causation and concentrates on something else: what would have been the position if the deliberate act which caused the relevant homelessness had not occurred.
+They then say that the real cause of their homelessness is not the act which caused it but something which did not cause it, namely the fact that they would have been homeless unintentionally by December if they had not already become homeless intentionally in August. (p 676D E) The contrary approach of the minority was put succinctly by Lord Russell: if on the facts as established in the present case he would be homeless now in any event, the past circumstances in which the homelessness originated appear to me to be no longer of any relevance: the past actions of the applicant are spent. (p 674A).
+The majoritys approach may have seemed harsh at the time.
+As applied to the facts of the case (involving mounting arrears of rent), it has been overtaken by statutory provisions.
+In Din the appellant had conceded that he could not challenge the authoritys decision that it would have been reasonable for him to continue to occupy the accommodation in question, notwithstanding his keenness to avoid mounting debts, although Lord Fraser noted that the position might have been different in a part of the country under less housing pressure (p 671A B).
+This problem has been addressed, not by substituting hypothetical for actual causes in the principal provision, but by defining the matters to be taken into account in deciding whether continued occupation is reasonable.
+As Lord Reed points out (para 15), subordinate legislation under section 177(3), introduced in 1996 provides that in determining that issue account is to be taken of the applicants financial resources and the cost of the accommodation.
+In the words of the Code of Guidance: one factor that must be considered in all cases is affordability (para 8.29).
+The one area of possible disagreement between the members of the majority in Din was on a matter not essential to their decision, that is the interpretation of the decision in Dyson v Kerrier District Council [1980] 1 WLR 1205.
+This concerned the correct approach to homelessness resulting from an intentional move from settled accommodation (in Huntingdon) followed by a limited period in temporary accommodation in a winter let in Cornwall.
+The Court of Appeal had held that there was a sufficient causal link between the original decision and the subsequent homelessness to satisfy the statutory test.
+In Din Lord Wilberforce thought the case was rightly decided: There (as here) the applicant intentionally surrendered available accommodation in order to go to precarious accommodation (a winter letting) from which she was ejected and so became homeless.
+It was held (in my opinion, rightly) that she had become homeless in consequence of her intentional surrender.
+This does not in any way support an argument that a subsequent hypothetical cause should be considered to supersede an earlier actual cause.
+It merely decides that a disqualification for priority by reason of an intentional surrender is not displaced by obtaining temporary accommodation.
+As pointed out by Ackner LJ in the Court of Appeal, it can be displaced by obtaining settled accommodation.
+Lord Fraser agreed because on the facts of that case the original cause of her homelessness was still in operation at and after the time when she had to leave the winter let.
+Lord Lowry alone expressed doubts about the correctness of the reasoning in Dyson.
+He said: It could well be that the plaintiff, having become homeless intentionally when she left the Huntingdon flat, was continuously homeless during the temporary winter letting and therefore rightly lost her priority.
+That is a result which I would understand and accept.
+But that was not the basis of decision in Dyson .
+That limited area of difference was resolved in 1995 by the House of Lords in R v Brent London Borough Council, Ex p Awua [1996] AC 215.
+Lord Hoffmann acknowledged that in finding the necessary causal link the Court of Appeal in Dyson had stretched the literal wording, to avoid a construction which would enable people to jump housing queues by making themselves homeless at one remove.
+In answer to the question what constitutes the causal link?, he cited with approval Lord Wilberforces explanation that the disqualification on the grounds of intentional homelessness was not displaced by obtaining temporary accommodation: The distinction between a settled residence and temporary accommodation is thus being used to identify what will break the causal link between departure from accommodation which it would have been reasonable to continue to occupy and homelessness separated from that departure by a period or periods of accommodation elsewhere.
+This jurisprudence is well established (it was approved by this House in Dins case) and nothing I have said is intended to cast any doubt upon it, although I would wish to reserve the question of whether the occupation of a settled residence is the sole and exclusive method by which the causal link can be broken.
+He rejected Lord Lowrys suggestion that Mrs Dyson had become homeless when she left the settled accommodation and remained so during the temporary let: of course Dysons case implies no such thing.
+It decides only that her homelessness after eviction from the cottage in Cornwall is intentional because it was caused by her decision to leave the flat in Huntingdon.
+Some support for a contrary view can be found in the speech of Lord Lowry in Dins case but this opinion was not shared by the other members of the House, who analysed the case solely in terms of causation.
+What persists until the causal link is broken is the intentionality, not the homelessness.
+Nothing in Awua casts any doubt on the principle, established by the majority in Din, that the definition of intentional homelessness is not concerned with hypothetical causes.
+The law on these issues has thus been settled for some 20 years or more.
+Although these cases were decided under the previous legislation, in terms of the wording of the relevant provisions of the 1996 Act, nothing has changed.
+Section 190(1) includes precisely the same contrast of tenses as was found in section 4 of the 1977 Act, and was regarded as determinative in Din.
+It applies where the authority are satisfied that the applicant is homeless, but became homeless intentionally.
+To my mind this is a clear indication that Parliament intended the same approach to apply as under its predecessor.
+Lord Reed has undertaken his own re analysis of Din in a way which had not suggested by the parties before us, nor (to my knowledge) by anyone else in the three decades since it was decided.
+While he makes some interesting points, I find it hard with respect to accept that such a re analysis is desirable or necessary.
+Lord Reed observes that these provisions have given rise to numerous difficulties of interpretation (para 8).
+That may have been so in the past, but it seems all the more reason for leaving well alone an aspect of the law which was regarded as settled in the highest court at a relatively early stage.
+As already noted, the limited difference between Lord Lowry and the other members of the majority on that issue was settled 20 years ago in Awua.
+The reasoning of the review officer in the present case seems to me a perfectly orthodox reflection of the majority approach in Din as endorsed in Awua.
+Miss Bretherton for the appellant has adopted a rather different approach.
+She has not sought to re interpret the majority decision in Din, but she submits that developments in both the statutory framework and in the case law mean that the decision need no longer be treated as binding, or if necessary, justify overruling it.
+As I understand her submissions, the principal developments on which she relies are: i) The 1996 Act involved a major restructuring of the law, not simply a consolidation, so that previous case law, though persuasive was no longer formally binding. ii) More particularly, the review procedure, introduced by section 202 of the 1996 Act, provides for a full merits review of the application on the basis of the facts at the date of the review.
+The reviewing officer, in the words of Lord Slynn (Mohammed v Hammersmith and Fulham London Borough Council [2002] 1 AC 547 para 26) is not simply considering whether the initial decision was right on the material before it at the date it was made.
+He may have regard to information relevant to the period before the first decision but only obtained thereafter and to matters occurring after the initial decision. iii) More recent cases have shown, as anticipated by Lord Hoffmann, that the causal link following an act of intentional homelessness may be broken by an occurrence other than the acquisition of settled accommodation, provided that it is unconnected with the temporary nature of the intervening accommodation, for example the breakdown of a marriage (R v Basingstoke and Deane Borough Council, Ex p Bassett (1983) 10 HLR 125), or a reduction in housing benefit (Ex p Fahia (1996) 29 HLR 94).
+The same thinking should apply to the birth of the child in the present case, which would have led to the loss of the accommodation in any event.
+I will take these points in turn.
+For the reasons already given when commenting on Lord Reeds judgment, I do not consider that the 1996 Act was intended to alter in any way the concept of intentional homelessness, or gives any reason for departing from or questioning Din particularly having regard to its then recent reaffirmation in Awua.
+It is true that the new review procedure allows consideration of new evidence, on those issues where the inquiry is directed to the present (such as local connection as in Mohamed).
+However, that has no relevance in my view to the issue of intentionality, which remains specifically related to the past.
+On Miss Brethertons last point, I do not see that her client can gain any help from cases such as Bassett and Fahia.
+As she says, the effect of these, if correct, appears to be to create an exception to the Dyson approach where the intervening accommodation comes to an end due to a change of circumstances for reasons not directly linked to its temporary nature, such as a breakdown of marriage which leads to exclusion from the temporary home.
+Another example, suggested by Toulson J in Fahia is where the temporary accommodation is destroyed by fire.
+The key to these cases is that the new event is the direct cause of the eventual homelessness, and is treated as its operative cause, thus breaking the chain of causation from the (intentional) loss of the previous settled accommodation.
+Neither the logic of the exception, nor its precise limits are entirely clear.
+In R v Hackney London Borough Council, Ex p Ajayi (1997) 30 HLR 473, Dyson J upheld the authoritys refusal to treat the operative cause of homelessness as the applicants pregnancy, which was the immediate cause of her eventual homelessness.
+He gave no clear explanation for the difference, other than that the issue was one for the authority to answer in a practical common sense way having regard to all relevant circumstances (p 479).
+Those cases, whatever their precise rationale, do not support a departure from the Din principle that the focus is on actual not hypothetical causes.
+Nor do they help the present claimant.
+The birth of her child might have been, but was not, the actual cause of her loss of either the original or the temporary accommodation.
+In conclusion, while I have much sympathy with the appellants arguments, I do not think we can properly accede to them.
+I would therefore have dismissed the appeal.
diff --git a/UK-Abs/train-data/judgement/uksc-2014-0204.txt b/UK-Abs/train-data/judgement/uksc-2014-0204.txt
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@@ -0,0 +1,954 @@
+This appeal is about the distribution of European Structural Funds among the regions of the United Kingdom.
+It arises out of the complaint of a number of local authorities in Merseyside and South Yorkshire about the way in which it is proposed to distribute funds allocated to the United Kingdom for the years 2014 to 2020.
+The appellants say that they should receive more and other regions correspondingly less.
+Article 174 of the Treaty on the Functioning of the European Union requires the European Union to aim at reducing disparities between the levels of development of the various regions and the backwardness of the least favoured regions.
+Article 175 requires Member States to conduct their economic policy in such a way as to further this objective and the Union to support it by distributions from the European Structural and Investment Funds (or ESI Funds).
+These funds are the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund.
+For present purposes the most significant of them are the Social Fund and the Regional Development Fund.
+The Social Fund was established under article 162 of the Treaty, whose terms identify its purpose: In order to improve employment opportunities for workers in the internal market and to contribute thereby to raising the standard of living, a European Social Fund is hereby established in accordance with the provisions set out below; it shall aim to render the employment of workers easier and to increase their geographical and occupational mobility within the Union, and to facilitate their adaptation to industrial changes and to changes in production systems, in particular through vocational training and retraining.
+Article 176 established the Regional Development Fund.
+This fund, which is much the largest of the Structural Funds, is intended to help to redress the main regional imbalances in the Union through participation in the development and structural adjustment of regions whose development is lagging behind and in the conversion of declining industrial regions.
+The distribution of money from the EU Structural Funds is a shared responsibility of the Commission and the authorities of the Member States.
+The Commission is solely responsible for the allocation of funds to each Member State.
+The money is then used to co finance programmes, the Union contribution currently varying between 50% and 85% and the rest being met from national budgets.
+The expenditure of sums allocated by the Commission within a Member State is jointly determined by the Commission and the Member State.
+In the United Kingdom this is the responsibility of the Secretary of State for Business, Innovation and Skills.
+Regulation (EU) 1303/2013
+Funds are allocated from the EU budget to programmes co financed by the European Structural Funds for successive seven year funding periods.
+The transition to a new funding period will commonly involve a measure of disruption.
+Funding budgets rise and fall.
+Strategic priorities both at Union and at national level change.
+The number and definition of the various categories of region entitled to funding support also change.
+Statistical tests for funding support, which commonly depend on the relationship between indices of regional development and the corresponding EU averages, may be significantly affected by the accession of new Member States.
+There may or may not be transitional provisions to ease the passage from one funding period to the next.
+The allocation of funds for programmes co financed by the European Structural Funds for 2014 2020 is governed by Regulation (EU) 1303/2013, which I shall call the 2013 Regulation.
+The legal base of the 2013 Regulation is article 177 of the Treaty on the Functioning of the European Union, which requires the European Parliament and the Council to make regulations to define the tasks, priority objectives and the organisation of the Structural Funds.
+So far as the current period is concerned, these objectives are summarised in the recitals to the 2013 Regulation.
+The overall objective is succinctly expressed in Recital (3).
+It is to provide a framework within which the Union and Member States should implement the delivery of smart, sustainable and inclusive growth, while promoting harmonious development of the Union and reducing regional disparities.
+This recital reflects one of the main features of the scheme, which is that it has been designed on the footing that there is a close interaction between the reduction of regional imbalances and the promotion of growth generally.
+This is reflected in the drafting of the 2013 Regulation, which is directed not just to the reduction of regional disparities but to economic development in its broadest sense.
+Under article 89(1) of the 2013 Regulation, the Structural Funds are required to contribute to two missions.
+One is the actions of the Union leading to strengthening of its economic, social and territorial cohesion in the broad sense envisaged in article 174 of the Treaty.
+The other is the delivery of the Union strategy for smart, sustainable and inclusive growth.
+Both missions are to be fulfilled by pursuing two goals identified in article 89(2), namely investment for growth and jobs in Member States and regions, and European territorial co operation.
+Of the two goals, the first is much the most important.
+Article 91 provides for an overall budget of (in round figures) EUR 322 billion, representing the global resources allocated for the years 2014 2020 to the Social Fund and the Regional Development Fund (together with the Cohesion Fund from which the United Kingdom does not benefit).
+Under article 92, 96.33% of this global amount is allocated to the Investment for growth and jobs goal and of this, specified proportions are allocated to three categories of region: less developed, transition and more developed.
+The regions in question are standard geographical units used for statistical purposes by the Commission and known as NUTS2 regions (Nomenclature of Territorial Units for Statistics, Level 2).
+The categorisation of regions depends on the ratio of their average GDP per capita to that of the Union as a whole: see article 90 of the 2013 Regulation.
+Less developed regions have a GDP per capita below 75% of the EU average; transition regions have a GDP per capita between 75% and 90% of the EU average; and more developed regions have a GDP per capita over 90% of the EU average.
+To calculate a Member States allocation from the Structural Funds, the Commission notionally allocates an annual amount of funding to each region within that state in accordance with a methodology prescribed for each of the three categories of region by Annex VII of the 2013 Regulation.
+In each category, the calculation is based mainly on the regions GDP per capita relative to the EU average.
+The Commission uses the resulting figures to calculate an aggregate amount for each of the three categories of region in that Member State.
+The sum of the three categories is then allocated to the Member State, plus a sum from the Cohesion Fund in the case of those Member States (not including the United Kingdom) which are supported by that fund.
+In contrast to the allocation of Structural Funds among Member States, which is prescribed by the 2013 Regulation in detail, there is no formula for the allocation of funds among regions within Member States.
+Instead, what is prescribed is a detailed administrative procedure for arriving at the internal regional allocations under a scheme of shared management involving the Commission, the Member States, and local entities.
+The initiative, or right of proposal, belongs to the Member State.
+Article 4.4 provides:
+Member States, at the appropriate territorial level, in accordance with their institutional, legal and financial framework, and the bodies designated by them for that purpose shall be responsible for preparing and implementing programmes and carrying out their tasks, in partnership with the relevant partners referred to in Article 5, in compliance with this Regulation and the Fund specific rules.
+The critical instrument is the Partnership Agreement, which determines the allocation of resources between regions and programmes to be co financed.
+It is defined by article 2.20 as a document prepared by a Member State with the involvement of partners in line with the multi level governance approach, which sets out that Member State's strategy, priorities and arrangements for using the ESI Funds in an effective and efficient way so as to pursue the Union strategy for smart, sustainable and inclusive growth, and which is approved by the Commission following assessment and dialogue with the Member State concerned.
+The function of the Partnership Agreement is described by Recital (20).
+It is to translate the elements set out in the [Common Strategic Framework] into the national context and set out firm commitments to the achievement of Union objectives through the programming of the ESI Funds.
+The Partnership Agreement should set out arrangements to ensure alignment with the Union strategy for smart, sustainable and inclusive growth as well as with the Fund specific missions pursuant to their Treaty based objectives, arrangements to ensure effective and efficient implementation of the ESI Funds and arrangements for the partnership principle and an integrated approach to territorial development.
+A distinction should be made between the essential elements of the Partnership Agreement which are subject to a Commission decision and other elements which are not subject to the Commission decision and can be amended by the Member State.
+The preparation of the Partnership Agreement is governed by article 14.
+The agreement shall cover all support from the ESI funds in the Member State
+concerned.
+It is to be prepared by Member States in dialogue with the
+Commission and in accordance with their institutional and legal framework, and then submitted to the Commission in draft by 22 April 2014.
+The Commissions functions in relation to the draft are to be found in article 16.
+The Commission is required to assess the consistency of the Partnership Agreement with this Regulation and with other Union instruments, and to make observations within three months of submission.
+The Member State is required to provide any additional information required of it and to make such revisions as are required in the light of the Commissions observations.
+Finally, the Commission must within four months of submission adopt a decision by means of implementing acts, approving all the elements of the Partnership Agreement which are required by the 2013 Regulation to be included.
+A similar process governs the Commissions approval of any amendments that may subsequently be proposed by a Member State.
+In the absence of specified criteria for the internal allocation of strategic funding, it is clear that the role of the Commission, as a party to the dialogue leading to the submission of the draft Partnership Agreement and the body charged with commenting on and approving it, is not simply to rubber stamp the proposals of Member States.
+It calls for a scrutiny of the proposals which is at once expert and exacting.
+It constitutes the main machinery of compliance envisaged by the legislator.
+It is an important feature of the 2013 Regulation that the criteria to be applied by both the Commission and the Member States in finalising the Partnership Agreement are not based on the amounts calculated by the Commission for each region when arriving at their national allocations.
+Indeed, these amounts are not even published, although they can be estimated from the methodology described in Annex VII of the 2013 Regulation.
+Nor are allocations within a Member State based, as the Commissions calculations are, on GDP per capita or other measures of deprivation.
+Instead, the proposals in the Partnership Agreement are governed by broadly based criteria that are purely qualitative.
+Recital (21) declares that Member States should concentrate support to ensure a significant contribution to the achievement of Union objectives in line with their specific national and regional development needs.
+The Union objectives are identified by article 9.
+The overall objective is to support the Union strategy for smart, sustainable and inclusive growth.
+This is defined by article 2.1 as meaning the targets and shared objectives guiding the action of Member States and the Union identified in three documents adopted by the European Council.
+The first is the Strategy for Jobs and Growth at Annex I of the Conclusions of the European Council of 17 June 2010.
+This identifies a number of Headline Targets, which can be summarised as an increase in the rate of employment, an improvement in the conditions for research and development, a reduction in greenhouse gas emissions, the improvement of educational levels and the promotion of social inclusion.
+The second is the Council Recommendation of 13 July 2010 on guidelines for the economic policies of Member States.
+These deal with the quality and sustainability of public finances, macroeconomic imbalances, research and development, resource efficiency and the reduction of greenhouse gas emissions, and the business and consumer environment.
+The third document is Council Decision 2010/707/EU on guidelines for the employment policies of Member States.
+These deal with labour market participation, skills, education and social inclusion.
+The thematic objectives mentioned in article 9 are set out in the article itself, which provides as follows: Thematic objectives In order to contribute to the Union strategy for smart, sustainable and inclusive growth as well as the Fund specific missions pursuant to their Treaty based objectives, including economic, social and territorial cohesion, each ESI Fund shall support the following thematic objectives: (1) strengthening research, technological development and innovation; (2) enhancing access to, and use and quality of, ICT; (3) enhancing the competitiveness of SMEs, of the agricultural sector (for the EAFRD) and of the fishery and aquaculture sector (for the EMFF); (4) supporting the shift towards a low carbon economy in all sectors; (5) promoting climate change adaptation, risk prevention and management; (6) preserving and protecting the environment and promoting resource efficiency; (7) promoting sustainable transport and removing bottlenecks in key network infrastructures; (8) promoting sustainable and quality employment and supporting labour mobility; (9) promoting social inclusion, combating poverty and any discrimination; (10) investing in education, training and vocational training for skills and lifelong learning; (11) enhancing institutional capacity of public authorities and stakeholders and efficient public administration.
+Thematic objectives shall be translated into priorities that are specific to each of the ESI Funds and are set out in the Fund specific rules.
+The thematic objectives are complemented by strategic guiding principles contained in a Common Strategic Framework at Annex I, which provide guidance as to how they are to be achieved, and by certain conditions (ex ante conditionalities) to be satisfied by Member States in relation to each thematic objective, which are identified in articles 18 and 19 and Annex XI.
+It will be apparent that, as foreshadowed by Recital (3), not all of the thematic objectives are directly concerned with reducing regional disparities.
+A few of these criteria are directed to traditional indices of deprivation such as employment and skill levels.
+Most are directed to specific developmental needs such as technical research capacity, training, information technology, business start ups or transport infrastructure, the need for which will vary even among regions with comparable levels of poverty or deprivation.
+Some are directed to more general policy objectives with no necessary connection to either deprivation or developmental needs, such as climate change adaptation.
+Articles 14 and 15, which lay down the required contents of the Partnership Agreement, closely reflect the objectives identified in article 9 and its incorporated instruments.
+The treatment of the United Kingdom NUTS2 regions
+There are 37 NUTS2 regions in the United Kingdom.
+Thirty are in England, four in Scotland, two in Wales and one in Northern Ireland, which constitutes a region in itself.
+In order to understand the way that Merseyside and South Yorkshire have been treated in the current Partnership Agreement, it is necessary to refer to the way that they had been treated in the two previous periods, 2000 2006 and 2007 2013.
+In 2000 2006, there were three categories of region called Objective 1, Objective 2 and Objective 3 regions.
+Objective 1 corresponded to the current less developed category, comprising regions with a GDP per capita less than 75% of the EU average.
+Regions in this category received the most generous funding.
+Merseyside and South Yorkshire were both Objective 1 regions in 2000 2006.
+The allocations for the next period, 2007 2013, were fixed shortly after the enlargement of the European Union by the admission of ten new members, mostly in Eastern Europe.
+The new members had lower levels of GDP per capita, which depressed the EU average and meant that a number of regions which had previously been in the bottom category of development and received the most generous treatment were now in a higher category.
+The Regulation for 2007 2013 ((EC) 1083/2006), which I shall call the 2006 Regulation, provided for two main categories of region: convergence regions, which broadly corresponded to the current less developed regions with a GDP per capita less than 75% of the EU average, and competitiveness regions which were above the 75% threshold and broadly corresponded to the current transition and more developed categories.
+Article 8 of the 2006 Regulation carved out of the competitiveness category two intermediate categories of region which had previously had a GDP per capita below 75% and would have been particularly badly affected by the move into a higher category.
+These came to be known as phasing in regions and phasing out regions, although the terms themselves are not used in the 2013 Regulation.
+Phasing out regions were regions which would have been convergence regions in 2007 2013 (the least developed category) but for the expansion of the EU, but moved above the 75% threshold because of the statistical impact of enlargement: see article 8.1.
+Phasing in regions were regions which had moved from less than 75% to more than 75% of the EU average GDP per capita and would have done so even without enlargement.
+That is their development status had improved.
+To ease their passage into the competitiveness category, phasing in and phasing out regions were both eligible for additional financial support on what was described as a transitional and specific basis, over and above the support that they would have received as competitiveness regions.
+In the United Kingdom, the only phasing in regions in 2007 2013 were Merseyside and South Yorkshire.
+They were entitled under Annex II, para 6(b) of the 2006 Regulation to an allocation of 75% of the 2006 level in 2007, tapering down to the national average level for competitiveness regions by 2011.
+The only phasing out region was Highlands & Islands.
+It was entitled under Annex II, para. 6(a) to an allocation of 80% of the 2006 level in 2007, tapering down to the national average level of funding support for competitiveness regions in 2013.
+The new categorisation for 2014 2020 had three categories, as we have seen.
+In effect, the old competitiveness category for regions with a GDP per capita over 75% of the EU average was divided into two new categories, transition and more developed.
+According to the Secretary of States evidence, the transition category was devised against the background of tight budgetary constraints to provide an increased level of funding notwithstanding the reduction of the overall budget for the Structural Funds.
+But in the course of negotiations in the European Council, the budget for transition regions originally proposed by the Commission was cut, thus reducing the value of the new category to those whom it was intended to benefit.
+In the current categorisation, the United Kingdom has two less developed regions, West Wales and Cornwall.
+There are 11 transition regions: Northern Ireland; Highlands & Islands in Scotland; and nine English regions including Merseyside and South Yorkshire.
+The other 24 regions are all classified as more developed.
+The Commissions allocation to the United Kingdom for 2014 2020 represented a 5% reduction at 2011 prices on the allocation for the previous funding period.
+The Secretary of States proposals for its allocation were formulated in two stages.
+The first covered the distribution of the United Kingdoms national allocation between its four component countries and the second covered allocations to regions within each country.
+At each stage the Secretary of States approach was to assess the allocation of each country or region by reference to its allocation for the previous funding period.
+This approach was adopted so as to limit as far as possible the scope for disruptive change in the new period.
+It was possible because the governments regional allocations for the previous period had been carried out using a basket of economic and social indicators, and the Secretary of State considered that there had been no significant change of the economic and social geography of the country in the interval.
+The Secretary of States first decision, which was announced on 26 March 2013, was that each of the four countries comprising the United Kingdom would have its overall allocation reduced by the same proportion, about 5%.
+The second decision, which was announced on 27 June 2013, distributed the allocations of each country among its NUTS2 regions.
+In the case of Northern Ireland, the allocation automatically followed from the first decision, because it was a region in itself.
+For present purposes, the critical points decided on the second occasion were that the nine English transition regions should receive an allocation per year for the current funding period representing an increase of 15.7% (at 2011 prices) on its allocation for 2013, the last year of the previous funding period, while Highlands & Islands (the only Scottish transition region) should receive an allocation per year of 95% of its average annual allocation over the whole of the previous funding period.
+The applicants have two fundamental complaints about this way of doing things.
+The first complaint is that although the allocation for Merseyside and South Yorkshire had risen by 15.7% from the base year of 2013, this represented a 61% reduction (at 2011 prices) on its allocation for the previous funding period as a whole.
+This was because in the previous funding period, although they would otherwise have ranked as competitiveness regions, they had received the special transitional and specific support provided for by article 8 of the 2006 Regulation.
+Under the terms of the 2006 Regulation it had tapered down to nil by 2011.
+In 2007 2013 as a whole, Merseyside and South Yorkshire had received substantially more than competitiveness regions because of the article 8 funding.
+But by taking 2013 as the base year for the uplift of 15.7%, the Secretary of State chose the year in which Merseyside and South Yorkshire had been entitled to no special transitional funding and had received no more than the national average for competitiveness regions.
+By comparison, the other English transition regions had received no special article 8 funding in the previous period and their allocations profile in that period had been flat in real terms.
+The second complaint is that Merseyside and South Yorkshire have done badly by comparison with Highlands & Islands and Northern Ireland.
+This, it is said, is because the first decision had protected the allocations to Scotland and Northern Ireland by guaranteeing them 95% of their allocations in the previous funding period.
+Highlands & Islands had then been allowed by the second decision to base the calculation of the 95% on its average annual allocation in the previous period, notwithstanding that, as a phasing out region in the previous period, part of its allocations in 2007 2013 had also represented transitional additional funding tapering down to zero over the period.
+In other words, Highlands & Islands was not limited to the relevant proportion of its last and lowest year in 2007 2013.
+The net result, the appellants say, was that their regions fared worse than other transition regions in spite of having higher levels of deprivation than most of them.
+What they want is a principle of allocation more closely related to levels of relative deprivation.
+Preliminary observations
+Three points should be made at the outset.
+The first is that the Secretary of States allocation is a discretionary decision of a kind which the courts have traditionally been particularly reluctant to disturb.
+There is no right answer prescribed by the EU Treaty or the 2013 Regulation to the question how EU Structural Funds should be distributed within a Member State.
+There is not even any clear principle on which this should be done.
+Instead, the Secretary of State was required to make a complex evaluation of a wide range of overlapping criteria, all of which involved difficult and sometimes technical judgments about matters of social and economic policy.
+Secondly, it was a judgment of a particularly delicate kind, involving the distribution of finite resources, including domestic taxpayers funds as well as EU funds, between the four countries and the distinctive regions of the United Kingdom.
+In such cases, the Secretary of State is in reality arbitrating between different public interests affecting different parts of our community.
+It is an exercise in which the legitimacy of the decision making process depends to a high degree on the fact that ministers are answerable politically to Parliament.
+As Lord Hoffmann observed in a lecture given in 2001, Separation of Powers, 7 JR 137 (2002)), at paras 19 20: there are certain areas in which, although the decision is formally justiciable because it involves the interpretation of statute or the common law, the outcome is likely to have an important impact upon public expenditure.
+The allocation of public expenditure whether we should spend more or less on defence, health, education, police and so forth, whether at a national or local level is very much a matter for democratic decision.
+Furthermore, a court deciding a case which will affect one form of public expenditure for example, impose a burden of expenditure upon education authorities has no way of being able to decide whether such expenditure should or should not have a prior claim over other forms of expenditure.
+It may consider that, viewed in isolation, it is fair and reasonable that children in schools should receive certain benefits or financial compensation for not having received other benefits.
+But because it can only view the matter in isolation, it has no way of knowing whether this means that other people dependent upon social security, police protection and so on will have to make sacrifices because there is less money for them.
+The only people who can make such decisions are the democratically elected bodies who are in charge of the budget as a whole.
+This means that even when a case appears to involve no more than the construction of a statute or interpretation of a common law rule, the courts are very circumspect about giving an answer which would materially affect the distribution of public expenditure.
+The third preliminary observation is that the disputed allocations are not a matter for the sole decision of the United Kingdom or the Secretary of State as its representative.
+Under the 2013 Regulation, the United Kingdom has the right of proposal, but its proposals must be embodied in a Partnership Agreement before they can be adopted.
+The Partnership Agreement is made with the Commission, acting as the relevant organ of the European Union.
+Once approved by the Commission it is implemented by a Commission decision.
+It then takes effect as an instrument of the Union.
+At the time when the present proceedings were brought, there was no Partnership Agreement in existence.
+There were only proposals which had been announced by the Secretary of State.
+At a number of stages (I shall return to this point) these had been prepared in consultation with the Commissions officials.
+Ultimately, they were embodied in a draft Partnership Agreement which was submitted by the Secretary of State to the Commission on 22 April 2014.
+It is a long, elaborate and highly technical document.
+We were referred to it in the form published on the United Kingdom governments website.
+The Commission was certainly aware of these proceedings and in general terms of the nature of the appellants complaints, not least because according to Mr Eyres evidence they lobbied the relevant commissioner about them.
+The Commission made a number of observations on the draft, which have not been disclosed because the Commission regards them as confidential.
+Finally the document was agreed by a Commission decision notified on 29 October 2014, shortly after this appeal was argued.
+I make these points not in order to suggest that the present issues are beyond the scope of judicial review in the English courts.
+The Secretary of States proposals are amenable to judicial review like any other decision of the executive.
+If his proposals were unlawful, he may be obliged to reconsider them and if necessary to propose an amendment.
+I am prepared to assume that the Commission would adopt the amendment, as it has indicated that it is in principle willing to do if it is consistent with the objectives of the Funds.
+However, the Commissions involvement has a broader significance.
+It is, as I have pointed out, the main mechanism of compliance envisaged in the 2013 Regulation.
+The Commission is an expert administrative body at arms length from the Secretary of State, with considerable experience of the economic and social issues involved.
+It is able to review the economic merits of the Secretary of States judgments and if necessary substitute its own evaluation in a way that is beyond the institutional competence of any court, let alone a national court.
+The Commission is evidently satisfied that the Partnership Agreement complies with the 2013 Regulation.
+That does not rule out the possibility that it may be equally satisfied with some alternative proposal.
+But a national court should be extremely cautious before accepting that a proposal is inconsistent with the 2013 Regulation which the Commission charged with applying it has found to be consistent with it.
+Grounds of review
+The appellants case is that taking the Secretary of States two decisions together, the allocation to Merseyside and South Yorkshire which resulted was unlawful.
+Mr Coppel QC, who appeared for them, submitted that the Secretary of State treated Merseyside and South Yorkshire differently from Northern Ireland and Highlands & Islands when they were for practical purposes in the same position, and in the same way as other English transition regions when they were in a materially different position.
+This, he said, was contrary to the general principle of equality in EU law as well as ordinary principles of English public law which require a decision maker to have regard only to legally relevant considerations.
+He submits that to make his case good, it is enough to demonstrate that Merseyside and South Yorkshire were comparable to Highlands & Islands or different from the other English transition regions.
+The Secretary of State had no discretion or margin of judgment on that question.
+His discretion or margin of judgment related only to the question whether the discrimination was objectively justifiable, and according to Mr Coppel QC the Secretary of State has never set out to satisfy that test.
+Before turning to the Secretary of States decisions, I should make it clear that I do not accept the rigid scheme of analysis by which Mr Coppel QC seeks to confine us.
+The general principle of equality in EU law is that comparable situations are not to be treated differently or different situations comparably without objective justification.
+This is not a principle special to the jurisprudence of the European Union.
+It is fundamental to any rational system of law, and has been part of English public law since at least the end of the nineteenth century.
+As Lord Hoffmann pointed out when delivering the advice of the Privy Council in Matadeen v Pointu [1999] 1 AC 98, para 109: Is it of the essence of democracy that there should be a general justiciable principle of equality? Their Lordships do not doubt that such a principle is one of the building blocks of democracy and necessarily permeates any democratic constitution.
+Indeed, their Lordships would go further and say that treating like cases alike and unlike cases differently is a general axiom of rational behaviour.
+It is, for example, frequently invoked by the courts in proceedings for judicial review as a ground for holding some administrative act to have been irrational.
+Unequal treatment, Baroness Hale explained in Ghaidan v Godin Mendoza [2004] 2 AC 557, para 132, is the reverse of the rational behaviour we now expect of government and the state.
+Power must not be exercised arbitrarily.
+If distinctions are to be drawn, particularly upon a group basis, it is an important discipline to look for a rational basis for those distinctions.
+The two stage process by which courts in discrimination cases distinguish between comparability and objective justification is a useful tool of analysis and probably indispensable in dealing with allegations of discrimination on ground of gender, race or other personal characteristics.
+More generally, a rigid distinction between the two stages was implicit in the four stage test proposed by Brooke LJ in Wandsworth London Borough Council v Michalak [2003] 1 WLR 617, para 20, for cases arising under article 14 of the European Convention on Human Rights.
+But a tool of analysis should not be transformed into a rule of law.
+As Lord Hoffmann pointed out in R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173, paras 29 31, the question whether two situations are comparable will often overlap with the question whether the distinction is objectively justifiable: If an analogous situation means that the two cases are not relevantly different (no two cases will ever be exactly the same) then a relevant difference may be the justification for the difference in treatment [T]his division of the reasoning into two stages is artificial.
+People don't think that way.
+There is a single question: is there enough of a relevant difference between X and Y to justify different treatment? [T]he invocation of the rational and fair minded person (who is, of course, the judge) suggests that the decision as to whether the differences are sufficient to justify a difference in treatment will always be a matter for the judge.
+Baroness Hale, making a very similar point in Ghaidan v Godin Mendoza at para 134, deprecated a formulaic approach for precisely this reason.
+The problem about Mr Coppel QCs scheme of analysis as applied to the allocation within a Member State of EU Structural Funds is that there is no clear measure of comparability, whether between different regions or between different ways of treating them.
+The appellants say that Merseyside, South Yorkshire, Highlands & Islands and Northern Ireland are comparable by virtue of being transition regions under the classification, and that they have been treated differently by virtue of receiving an allocation for 2014 2020 which represents a smaller proportion of what they received in 2007 2013 than the rest.
+But neither proposition is coherent in the context of this
+particular scheme.
+The four regions are transition regions only because they
+all have an average GDP per capita between 75% and 90% of the EU average.
+But that only means that they are all eligible to participate in the pool of money allocated by the Commission for United Kingdom transition regions.
+The mere classification by GDP per capita is consistent with significant differences in other respects which are relevant to the allocation of EU Structural Funding.
+The criterion for the allocation is not GDP per capita but contribution to the EUs policy objectives as set out in article 9 and its incorporated instruments.
+To paraphrase Lord Hoffmann, there is only one question: is there 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 their treatment? The answer to that question may ultimately be for the court, but the nature of the question requires a particularly wide margin of judgment to be allowed to the decision maker.
+That is partly because the questions posed by the 2013 Regulation, whether they come under the heading of comparability or justification, call for a complex policy judgment based on a broad range of economic and social factors which the court is not competent to carry out and could not legitimately carry out.
+And it is partly because the discretion allowed to Member States and the Commission by the 2013 Regulation is itself very wide, and the courts cannot confine it more narrowly.
+There are many solutions consistent with the Regulation, none of which is any more right than the next.
+It follows, in my opinion, that the appellants cannot succeed on this appeal simply by pointing to the classification of Merseyside and South Yorkshire as transition regions, and denouncing the outcome of the Secretary of States two decisions as more burdensome to them than to others in the same category.
+They must show that there was something unlawful about the process or reasoning by which that outcome was arrived at.
+Against that background, I turn to the Secretary of States two decisions.
+The first decision
+The first decision was to allocate to each of the four countries comprising the United Kingdom 95% of what they had received from the Structural Funds in the previous funding period (at 2011 prices).
+Instead of applying the 5% reduction in the United Kingdoms national allocation to the United Kingdom as a whole, he applied it separately to each component country.
+The Secretary of States reasons for this decision are explained in a witness statement of Dr Susan Baxter, a senior official in his department.
+It is clear from her evidence that Ministers chief concern was that the radical reclassification of European regions in the current Regulation should not lead to an excessively abrupt change in the funding allocated to the United Kingdoms regions.
+Although the Commission had not disclosed how much it had allowed for each region when calculating its allocations to Member States, the department was able to estimate the Commissions regional figures from the formula in the 2013 Regulation.
+This revealed that if the Secretary of State were to allocate funds to regions according to the same GDP based methodology as the Commission had used to allocate funds to the United Kingdom, England would have received an increase of 7% on its allocation for 2007 2013 (at 2011 prices), with the largest increases going to the south of England.
+The three other countries comprising the United Kingdom would have received substantially less than their allocation for 2007 2013: 22% in the case of Wales, 32% in the case of Scotland and 43% in the case of Northern Ireland.
+The Secretary of State considered allocating funds within the United Kingdom on this basis, but rejected the idea in order to protect the devolved administrations from sudden and significant cutbacks to funding.
+His reasons were described by Dr Baxter as follows: 41.
+Ministers were aware that the decision to equalise the cuts meant that there was proportionately less for England than the EUs notional calculation methodology would have rendered.
+Accordingly Ministers were fully aware that both (a) that this approach to the allocation of funds (rather than allocation on the basis of the EU Commissions approach) would reduce the amount of money available for regions in England; and (b) that it would limit the funding available for distribution for the Transition regions in England and the allocation for Northern Ireland and Highlands & Islands regions would come out of the transition budget.
+However, this was seen in the context of an overall cut in the funding for Northern Ireland and Scotland. 42.
+There were a number of reasons for applying the cut equally as between the nations, including: Transparency a decision that was easy for non experts to understand; Simplicity a single number applied to each Devolved Administration; Consistency the same approach was taken to all four
+Devolved Administrations; and
+Balanced it took account of the status of the Devolved Administrations under the UK's constitutional settlement. 43.
+The Government was not, at this stage, looking at the detailed effects at NUTS 2 level.
+Ministers were aware that increasing the funding for the Devolved Administrations would mean less for certain regions in England, as allocations had be [sic] made from a set budget category for each category of region.
+However, it was decided that this would be dealt with at the next stage of the allocation process and that only the big picture within the UK would be looked at when trying to distribute the cut fairly as between the UK nations.
+In these passages, references to the English regions getting less mean less than they would have got if the Secretary of State had replicated the notional regional allocations which it was estimated that the Commission had made.
+In my opinion the Secretary of State was entitled to adopt this approach.
+The EU Structural Funds are primarily concerned with economic development, which is a devolved responsibility.
+It is true that the relevant entity in international law is the United Kingdom, and that, as regards the institutions of the European Union, the United Kingdom is the Member State.
+England and the devolved administrations of Scotland, Wales and Northern Ireland have no formal status in the EU legal order.
+But it does not follow that their status within the United Kingdom is irrelevant.
+EU law is not insensitive to the relationship between Member States and their internal federal or regional units of government and will not necessarily treat regional variations arising from the distribution of constitutional responsibility within a Member State as discriminatory.
+In (Case C 428/07) R (Horvath) v Secretary of State for the Environment, Food and Rural Affairs [2009] ECR I 6355, the Court of Justice was concerned with the Memorandum of Understanding between the United Kingdom government and the Scottish Government which assigned to the devolved administration of Scotland responsibility for the implementation of Community law concerning the common agricultural policy.
+The relevant EC Regulation empowered Member States to set minimum standards of compliance at national or regional level.
+Mr Horvath complained that regulations requiring the maintenance by landowners of public rights of way over agricultural land infringed the Community law principle of equality because equivalent obligations had not been imposed by the devolved administration in Scotland.
+The Advocate General, in her Opinion, had advised that differences in the way that Community obligations were implemented by different devolved administrations could not be regarded as discriminatory because they cannot be attributed to the conduct of the same public authority (para 112).
+The Grand Chamber reached the same conclusion, but on a broader basis, namely that such differences were inherent in the distribution of responsibility for implementing Community law among distinct territorial units of government within a Member State.
+They were therefore no more discriminatory than differences in the way that EU law was implemented by different Member States: 48.
+As a preliminary point, it should be pointed out that, in conferring on Member States the responsibility of defining minimum GAEC requirements, the Community legislature gives them the possibility of taking into account the regional differences which exist on their territory. 49.
+It should be recalled that, when provisions of the Treaty or of regulations confer power or impose obligations upon the States for the purposes of the implementation of Community law, the question of how the exercise of such powers and the fulfilment of such obligations may be entrusted by Member States to specific national bodies is solely a matter for the constitutional system of each State (Joined Cases 51/71 to 54/71 International Fruit Co and Others [1971] ECR 1107, para 4). 50.
+Thus, it is settled case law that each Member State is free to allocate powers internally and to implement Community acts which are not directly applicable by means of measures adopted by regional or local authorities, provided that that allocation of powers enables the Community legal measures in question to be implemented correctly (Case C 156/91 Hansa Fleisch Ernst Mundt [1992] ECR I 5567, para 23). 51.
+The Court has, in addition, held that, where a regulation empowers a Member State to take implementing measures, the detailed rules for the exercise of that power are governed by the public law of the Member State in question (see (Case 230/78) Eridania Zuccherifici nazionali and Societ italiana per lindustria degli zuccheri [1979] ECR 2749, para 34, and Case C 313/99 Mulligan and Others [2002] ECR I 5719, para 48). 54.
+It must nevertheless be examined whether, in those circumstances, the mere fact that the rules establishing GAEC laid down by the regional authorities of the same Member State differ constitutes discrimination contrary to Community law. 57.
+Where, as in the main proceedings, it is the devolved administrations of a Member State which have the power to define the GAEC minimum requirements within the meaning of article 5 of and Annex IV to Regulation No 1782/2003, divergences between the measures provided for by the various administrations cannot, alone, constitute discrimination.
+Those measures must, as is clear from para 50 of this judgment, be compatible with the obligations on the Member State in question which stem from that regulation. 58.
+In the light of the foregoing, the answer to the second question is that, where the constitutional system of a Member State provides that devolved administrations are to have legislative competence, the mere adoption by those administrations of different GAEC standards under article 5 of and Annex IV to Regulation No 1782/2003 does not constitute discrimination contrary to Community law.
+The decision is significant not just for the answer that was given to the particular question posed by the High Court, but because it necessarily followed from the reasoning that the mere fact that the United Kingdom was a unitary state in international law did not mean that regional differences in the way that Community law was applied called for objective justification.
+The present case differs from Horvath.
+The sole decision maker was the Secretary of State.
+It was not the devolved administrations.
+However, this seems to me to be a largely formal distinction which avoids the substance of the matter.
+The 2013 Regulation requires a Partnership Agreement to be agreed between the Commission and the United Kingdom.
+Proposals for inclusion in that agreement are therefore necessarily prepared for submission to the Commission on behalf of the United Kingdom.
+But internally, the Secretary of State was entitled to give effect to the wishes of the devolved administrations in areas such as these where they would be constitutionally responsible for implementation, notwithstanding that that might introduce differences between the different countries of the United Kingdom.
+Article 5(1) of the 2013 Regulation provides that a Member State must in accordance with its institutional and legal framework organise a partnership with the competent regional and local authorities.
+Article 5(2) provides: In accordance with the multi level governance approach, the partners referred to in para 1 shall be involved by Member States in the preparation of Partnership Agreements and progress reports and throughout the preparation and
+implementation of programmes
+What the Secretary of State did when making his first decision was to treat the four countries comprising the United Kingdom as if they were separate entities for the purpose of implementation of the 2013 Regulation, and to divide the United Kingdoms allocation from the Structural Funds between them on a consistent basis, pro rata to their allocations in the previous funding period.
+In my opinion, he was entitled to have regard in this way to the constitutional settlement of the United Kingdom, provided (i) that the basis on which he did so did not unjustifiably discriminate between the four countries, and (ii) that the financial implications for the individual regions of the United Kingdom were consistent with the 2013 Regulation.
+The Secretary of States first decision was in my opinion within his margin of judgment in both of these respects.
+There is no material before us to suggest that the relative positions of England, Wales, Scotland and Northern Ireland had changed so radically since the last funding period that a distribution between them proportionate to their previous allocations could be regarded as in itself discriminatory.
+The argument of Merseyside and South Yorkshire is directed entirely to the financial impact of the decision on individual regions within the four countries, in other words to the second of the two provisos which I have mentioned.
+But the first decision did not mean that English transition regions such as Merseyside and South Yorkshire would necessarily fare worse than Highlands & Islands or Northern Ireland.
+The appellants do not suggest that the first decision necessarily meant that Highlands & Islands and Northern Ireland would get a larger proportion of the United Kingdoms transition region pot than they would have done if the 5% reduction, instead of being applied to the four countries separately, had been applied to the United Kingdom as a whole.
+That would depend on how the allocations to individual regions were dealt with in the second decision, both in Scotland and in England.
+Indeed, Mr Eyres, whose witness statements constitute the appellants evidence, says that Merseyside and South Yorkshire assumed in the light of the first decision that they would receive a similar degree of protection to that received by the devolved regions when it came to allocating funds among the regions of England at the second stage.
+The appellants evidence is not that the first decision reduced the total amount available for allocation to English transition regions below what it would have been if the 5% reduction had been applied across the United Kingdom as a single entity.
+It is that it reduced the total amount below what it would have been if the Secretary of State had simply allocated funds between the regions in accordance with the notional regional allocations made by the Commission when calculating the allocation of the United Kingdom.
+But that could not possibly make the first decision unlawful.
+This is because under the 2013 Regulation the calculation of national allocations by the Commission depended on a precise formula based primarily on regional GDP per capita, whereas the allocation of the funds within a Member State are based on criteria that are qualitative and altogether wider.
+Developmental needs in the respects covered by the thematic objectives cannot be measured simply by reference to general measures of poverty such as GDP per capita.
+The Secretary of State cannot therefore have been obliged to replicate the methodology of the Commission or to employ some other GDP based formula in his decision about how to allocate the funds among the regions of the United Kingdom, provided that he respected the thematic objectives and that his proposals were agreed by the Commission in the Partnership Agreement.
+It is not suggested that he failed to respect the thematic objectives, and the Partnership Agreement has been agreed by the Commission.
+The second decision
+The appellants, as I have pointed out, recognised that the first decision did not prevent the Secretary of State from protecting them against a sudden and significant cutback.
+Their real target is the Secretary of States second decision in which he failed to do so.
+Their complaint is that it did not protect them against a sudden and significant cutback by comparison with the 2007 2013 allocations, because the selection of 2013 as the base year meant that their uplift was based on the year in which their funding in the previous funding period had been lowest.
+This was because under article 8.1 and Annex II, para 6(b), their funding had been tapered down by 2013 to the national average level for competitiveness regions.
+Moreover, the national average for competitiveness regions was exactly that, an average.
+It did not take account of the special needs of those competitiveness regions in the north and midlands of England which were below the average and had relatively low GDP per capita and high levels of deprivation.
+The appellants argue that in order to avoid unjustifiable discrimination the Secretary of State should, when making his second decision, have based the uplift of the English transition regions for 2014 2020 on their average allocations over the whole of the previous funding period.
+As it was, his decision to use 2013 as the base year discriminated against them, (i) by comparison with other English transition regions, which had had a flat annual allocations profile in the previous period, and (ii) by comparison with Highlands & Islands whose annual allocations for the new period were calculated by reference to the average of its annual allocations in 2007 2013 instead of just 2013. 39.
+The Secretary of State did not overlook these factors.
+He considered that Merseyside and South Yorkshire were not comparable to other English transition regions or to Highlands & Islands.
+I shall deal first with the question of comparability to the other English transition regions.
+In her witness statement (at paras 47 55), Dr Baxter says that ministers considered four main options: Option A was to replicate the notional regional allocations made by the Commission in arriving at the national allocation of the United Kingdom.
+This would have resulted in allocations which were proportionate to regional GDP per capita, but would have resulted in a significant shift of funding from the north of England to the south.
+They considered that there had been no fundamental change in the economic landscape in the last few years such as to justify a shift of allocations of this kind, which would have reduced the funding available for the poorest parts of England.
+Officials consulted the Commission.
+The Commission said that it would be uncomfortable about the use of their methodology, which had been designed for the calculation of national, not regional allocations.
+Option B was to apply a standard uplift to each regions allocations for 2013.
+Option C was the same as Option B, but with the allocations of Merseyside and South Yorkshire being based on their average allocations over the whole of the period 2007 2013. (This was already the case for the other English transition regions, whose allocations profile had been flat over the previous funding period).
+Option C would have resulted in Merseyside and South Yorkshire receiving a higher allocation than under Option B, but it would have involved a reduction of 22% in the allocations of all English transition regions, including Merseyside and South Yorkshire, compared to 2007 2013.
+This was because the high cost of funding Merseyside and South Yorkshire on the basis of their allocations over the whole of the previous funding period would have had to come out of the pot available to transition regions generally.
+It was considered that for this reason Option C would be inconsistent with the thinking which lay behind the creation of the transition category for 2014 2020, and would have caused difficulty in agreeing the allocations with the Commission.
+This was because the transition category had been specifically introduced to provide enhanced levels of funding for regions at an intermediate stage of development notwithstanding the reduction of the total budget.
+Option D was a hybrid scheme using the Commissions notional allocations for all transition regions combined with what is described as a UK specific formula for more developed regions.
+For transition regions this would have been the same as Option A. Ministers also considered a fifth method, which involved using a basket of economic indicators together with a suitable safety net.
+They thought that there was a strong case for this, but rejected it because, like Option A, it would have produced a large drop in funding for the midlands and north of England, in favour of the south. 40.
+As Dr Baxter points out, no solution was wholly satisfactory from every point of view: 48.
+Given the funding reductions to the overall programme, and the limitations imposed by the EU Regulations, there was no outcome possible which would not have resulted in funding reductions to some regions.
+The advantages and disadvantages of a range of options had to be considered and Ministers had to take a range of considerations into account in determining their preferred solution.
+Ministers, she notes, had to make difficult decisions: 87.
+Officials presented them with a range of options after undertaking very detailed and comprehensive analysis and Ministers chose those options which they felt in sum were fairest to all.
+The available budget was set by the EU and so it was always unlikely that a single option would satisfy all regions.
+Giving Merseyside and South Yorkshire a larger allocation would have meant reducing the allocations to the other UK Transition regions.
+Decisions over the Transition allocations were particularly problematic as the negotiations in the European Council had resulted in significant cuts to the budget for Transition regions compared to the European Commission proposal.
+This level of reduced funding at EU meant that any decision was going to come as a disappointment for some. 41.
+The Secretary of State chose Option B, fixing the uplift at 15.7%.
+His reasons are described as follows by Dr Baxter: 54.
+A key aspect of the decision, of course, was the status of Merseyside and South Yorkshire as phasing in regions for the 2007 2013 period, thus receiving additional payments in 2007, 2008, 2009, 2010 on a specific and transitional basis, as explained above.
+Ministers decided to make the allocations using 2013 allocations as a baseline because such a baseline: maintained higher levels of funding in the North of England, where need is greatest; avoided large drops in funding levels as between 2013 and 2014 (even in relation to South Yorkshire and Merseyside); treated all English Transition regions in the same way, whilst taking account of the phased in status of South Yorkshire and Merseyside by basing allocations on the jumping off point from the 2007 2013 allocation; and treated all More Developed regions in the same way. 55.
+Had allocations been calculated based on a 2007 2013 average or overall quantum, then Ministers felt that Merseyside and South Yorkshire would have been unduly advantaged in relation to other English Transition areas, in so far as their boosted allocations in the period 2007 2010 were expressly intended to be transitional and specific rather than to be enshrined into future allocations. 42.
+In the light of this reasoning it is impossible to say that the Secretary of States decision was outside the broad range of decisions that he could lawfully make.
+Merseyside and South Yorkshire had already received additional funding over and above that available to other regions with a GDP per capita exceeding 75% of the EU average during the previous funding period.
+Article 8.2 and Annex II, para 6(b) of the 2006 Regulation had provided for the level of funding to taper down to the national average for competitiveness regions by 2011.
+Mr Eyres, the appellants witness, says that this had not been enough to lift Merseyside and South Yorkshire into the category of competitiveness regions (in the 2007 2013 categorisation) or the category of more developed regions (in the categorisation of 2014 2020).
+That is so, but it misses the point, which is that it was of the essence of the transitional and specific additional funding allowed by article 8 of the 2006 Regulation that it was temporary.
+Once it had expired, the 2006 Regulation 43. envisaged in terms that the regions which had benefitted should be funded only at the national average aid intensity level for competitiveness regions.
+In the new categorisation for 2014 2020, these regions would be assisted by being included in the intermediate category of transition regions created for regions with a GDP per capita between 75% and 90% of the EU average.
+However, the budget for transition regions was tight.
+If the Secretary of State had based the uplift in 2014 2020 on the average allocations for the whole of the previous period, the effect would have been to continue the impact of the transitional additional funding provided for the years 2007 2011 into 2014 2020.
+This represented a very significant difference between Merseyside and South Yorkshire on the one hand and the other English transition regions on the other.
+In practice it is difficult to see what else the Secretary of State could have done.
+Unlike pay discrimination cases, where it is possible to level up to match the highest paid, the distribution of EU Structural Funds within each category of regions is a zero sum game.
+One regions gain is anothers loss.
+Since the fund available for transition regions is ring fenced the additional cost of providing Merseyside and South Yorkshire with allocations based on the whole of the previous period would have had to come out of the allocations of the other English transition regions and would have left all of them with 22% less than they had had in 2007 2013 instead of 15.7% more.
+The Secretary of State was entitled to take the view that this would be contrary to the purpose for which this intermediate category had been created.
+I do not find it in the least surprising that the Secretary of State anticipated difficulty in getting the Commissions agreement to such a scheme, and I can see no basis on which his judgment of the Commissions likely reaction can be challenged. 44.
+Much of the evidence before the court is devoted to a technical and ultimately inconclusive dispute arising from Mr Eyres assertion that if, hypothetically, Merseyside and South Yorkshire had been competitiveness regions in 2007 2013 rather than phasing in regions, they would have received a higher allocation in 2013, and therefore a higher allocation in 2014 2020 as well.
+Dr Baxter challenges his methodology and produces alternative figures of her own, based on rerunning the original calculations made for 2007 2013 on Mr Eyres hypothesis.
+The value of this exercise is diminished by the fact that both witnesses agree that if Merseyside and South Yorkshire had actually been competitiveness regions in 2013, the methodology used to calculate allocations in 2014 2020 would in fact have been different.
+They disagree about what the differences would have been.
+It is neither necessary nor possible for a court of review to resolve this issue.
+It is not in fact true that Merseyside and South Yorkshire were at the bottom of the transition category.
+At 80.14% of the EU average GDP per capita, Merseyside was the third poorest of the nine English transition regions, according to the 45. 46. governments figures, while South Yorkshire at 84.46% was somewhere in the middle of the range.
+But it is unquestionably true that the result of the allocations process was to inflict a very large reduction on two of the poorer regions of the United Kingdom.
+However, the only way that that problem could have been addressed on a common basis for all transition regions would have been to use a formula based on GDP per capita, as the Commission had done when calculating national allocations, or else some other formula more closely related to measures of poverty and deprivation.
+It is impossible for this court to say that the Secretary of State was bound in law to adopt some such formula.
+In the first place, under the 2013 Regulation allocations within Member States are not based on GDP per capita and are only to a limited extent based on other measures of deprivation.
+Secondly, the evidence is that the Commission when approached discouraged the use of their own methodology as inappropriate to an internal allocation.
+And, third, concentration on GDP per capita would have produced an overall shift of funding towards the south which the Secretary of State was entitled to regard as even more anomalous.
+I turn to the argument that the appellants allocation was discriminatory by comparison with Highlands & Islands.
+It is correct that Highlands & Islands funding was reduced by 5% (at 2011 prices) by comparison with 2007 2013, as against a much larger reduction for Merseyside and South Yorkshire, even though as a phasing out region it had also received transitional additional funding on a tapered basis in the earlier period.
+Dr Baxter draws attention to three differences between former phasing in regions like Merseyside and South Yorkshire and a former phasing out region like Highlands & Islands.
+As a phasing out region, Highlands & Islands had previously been funded under the convergence objective in recognition of its greater developmental challenges.
+Its tapering profile had been more gradual in 2007 2013.
+And its co financing rate had been higher (75% against 50% for phasing in regions) so that allocations to it represented better value for money for UK taxpayers.
+I doubt whether the different tapering profile really differentiates Highlands & Islands from the two English phasing in regions.
+There may be more in the other two points.
+So far as the Secretary of State attached weight to these factors, it was very much a matter of judgment for him.
+In fact, however, the evidence suggests that the treatment of Highlands & Islands was not due to these factors.
+It was the combined result of the first decision, which treated Scotland as a separate territorial unit with its own 5% reduction, and of wishes of the Scottish Government, which naturally preferred to base Highlands & Islands allocations on the average of its annual allocations in the previous period than to limit it to 95% of its 2013 allocation and spend the rest on its more developed regions.
+So far as it arose from the treatment of Scotland as a separate territorial unit, I have already explained why I regard that treatment as defensible.
+So far as the decision about Highlands & Islands arose from the preferences of the Scottish Government, it seems to me to be the natural and legitimate result of the decentralisation of the United Kingdom under its current constitutional settlement.
+No doubt if the 5% reduction had been applied to the United Kingdom as a whole, Highlands & Islands would have got less than in the event they did, and the saving would have left a bit more in the pot for the nine English transition regions.
+But there is nothing in the evidence to suggest that the dilemmas affecting allocations to English transitional regions, which I have already discussed, would have been any less acute or that the outcome for Merseyside and South Yorkshire would have been significantly better.
+Proportionality 47.
+The appellants advance an alternative case based on proportionality, which I can deal with quite shortly, for I agree with the Court of Appeal that it adds nothing to the case based on alleged discrimination.
+The appellants say that the effect of the Secretary of States decision was to impose upon them a disproportionate burden.
+The problem about this submission is that it fails to answer the question: disproportionate to what? Proportionality is a test for assessing the lawfulness of a decision makers choice between some legal norm and a competing public interest.
+Baldly stated, the principle is that where the act of a public authority derogates from some legal standard in pursuit of a recognised but inconsistent public interest, the question arises whether the derogation is worth it.
+In this case the only legal standard by which the treatment of Merseyside and South Yorkshire can be regarded as disproportionately onerous to them is provided by the terms of the 2013 Regulation and the principle of equality.
+The two regions have no entitlement to support from the Structural Funds except what they can derive from these two sources.
+If the Secretary of States decisions are consistent with both, as I consider them to have been, their treatment cannot be regarded as disproportionate.
+Lord Mances judgment 48.
+I have naturally revisited my views in the light of the judgments of Lord Mance and Lord Carnwath.
+To some extent, the differences between us relate to the supposedly anomalous consequences of the first decision, in particular on the different treatment of Merseyside and South Yorkshire on the one hand and Highlands and Islands on the other.
+I do not feel that I can usefully add anything to what I have already said about the first decision, which I regard as justifiable.
+Two other differences do, however, call for further comment.
+The first concerns the purpose of the structural funds, which is central to the analysis of Lord Mance.
+The second is his analysis of the relationship between the allocations for 2014 2020 and those of the previous funding period. 49.
+We may all agree that the distribution within the United Kingdom of EU structural funds must be consistent with their purpose.
+Where I part company with Lord Mance is that he appears to me to take too narrow a view of the purposes of the funds and the means by which those purposes may legitimately be achieved.
+The Social Fund is not directly concerned with the reduction of regional imbalances, but with the promotion of employment and geographical and occupational mobility.
+The Regional Development Fund is concerned with the reduction of regional imbalances, but not only by the direct improvement of GDP per capita and other measures of deprivation.
+The purpose of both funds is to support the action of the Union in these areas.
+The action of the Union is guided by the targets and shared objectives referred to in the three Council policy documents of 2010 identified in article 2.1, and summed up generally in the concept of smart, sustainable and inclusive growth.
+This concept runs through the whole of the 2013 Regulation, and the thematic objectives in article 9 are mainly directed to promoting it.
+They involve a wide range of economic criteria, which will not directly diminish regional divergences, even if they can be expected to do so indirectly in the long term.
+Lord Mance and Lord Carnwath both consider that the allocations to Merseyside and South Yorkshire were not based on their actual needs.
+But that is a conclusion which they appear to have reached solely by reference to standard measures of deprivation such as GDP per capita.
+This assumes that there must necessarily be a close correlation between these measures of relative deprivation and the distribution of EU structural funds.
+But since the reduction of such differences is only one purpose of the structural funds, and even that purpose may be achieved indirectly by promoting growth through the thematic objectives, that assumption is on the face of it unjustified. 50.
+The second major difference arises out of Lord Mances rejection of the view of both the judge and the Court of Appeal about the justification for taking allocations for 2013 as the reference point for the uplift applied in 2014 2020.
+The same point appears to be implicit in the analysis of Lord Carnwath.
+In the absence of any complaint about the distribution of allocations in the previous funding period, and in the absence of any material change in the economic geography of the United Kingdom since then, the mere fact that allocations were made for 2014 2020 by reference to those in the previous period is unobjectionable.
+The objection is specifically to the choice of 2013 as the reference year.
+It is in my opinion clear that it was this decision which accounts for the differences between Merseyside and South Yorkshire on the one hand, and the remaining transition regions in the current funding period on the other.
+It was certainly not the decision to reduce the allocations to the four countries comprising the United Kingdom by a flat 5%.
+This first decision did not in fact, as Lord Mance suggests, diminish the pot available for the nine English transition regions.
+The government could have distributed the overall allocation to the English transition regions in such a way as to ensure that all of them received a flat 5% reduction on their total allocations for the previous period.
+It could have distributed them in such a way as to ensure that Merseyside and South Yorkshire received no more than a 5% reduction even if the others did not.
+Some such solution is what the appellants say that they hoped and expected would happen after the first decision had been announced.
+Their real complaint is that it did not happen.
+The reason why it did not is that the purpose of the 2013 Regulation in dividing the former competitiveness category into a transition category and a more developed category was to enable the former to receive an uplift.
+The reason why Merseyside and South Yorkshire did worse than that was that their uplift, although the same as that of the other transition regions, was based on the 2013 funding allocation and ignored the fact that they had been receiving tapered transitional funding between 2007 and 2011.
+The same problem would have existed, and would have been equally acute, if the 5% reduction in the total funds for distribution had been applied across the whole of the United Kingdom, instead of to each of the four countries separately.
+I have set out earlier in this judgment my reasons for agreeing with the courts below that disregarding the tapered transitional funding was justifiable.
+Lord Mance disagrees (i) because he considers that the tapered transitional funding which they received under article 8 of the 2006 Regulation in that period should be regarded as no different in character from the rest of their funding in that period; and (ii) because the allocation for the previous period had tapered down to the average for allocations for competitiveness regions, and Merseyside and South Yorkshire were worse off than the average competitiveness region.
+The problem about the first of these points is that but for article 8 of the 2006 Regulation, they would have been competitiveness regions in 2007 2013.
+The tapered funding was a temporary increase in their allocations designed to ease their path from Objective 1 status in 2000 2006 to competitiveness status in 2007 2013.
+Its function could properly be treated as spent by 2013.
+The problem about the second point is one that I have already pointed out in another context, namely that it assumes a more precise correlation between relative deprivation and allocations than anything required by the 2013 Regulation.
+Conclusion 51.
+I would dismiss the appeal.
+LORD NEUBERGER: Introductory: the background and the issues 52.
+This appeal arises out of a challenge to the decision of the Secretary of State relating to the distribution between various regions of the United Kingdom of money allocated by the European Commission to the UK.
+The money in question (the UK allocated funds) emanates from the European Structural Funds, and is payable in respect of the years 2014 2020, pursuant to Regulation (EU) 1303/2013 (the 2013 Regulation). 53.
+The background to the appeal is set out by Lord Sumption in paras 2 19, 30 31 and 37 41, and by Lord Mance in paras 113 148 below, and it is unnecessary to repeat much of what they have said.
+In particular, the relevant provisions of the 2013 Regulation are explained by Lord Sumption in his paras 5 to 13. 54.
+The Secretary of State for Business, Innovation and Skills decided to distribute the UK allocated funds by reference to a two stage process.
+First, they were apportioned between each territory (for want of a better word) of the United Kingdom.
+This apportionment was effected on the basis that, for 2014, Northern Ireland (which was one region), Wales (which was divided into two regions), Scotland (which was divided into four regions) and England (which was divided into 30 regions) would each receive an annual sum which was 5% less than the they had received in the last year of the previous period, 2013.
+This was because the UK allocated funds for 2014 were 5% less than they had been for 2013 (in 2011 prices).
+Secondly, the distribution of the English portion between the 30 English regions involved each of the nine English regions designated under the 2013 Regulations as transition regions, (ie regions which have a GDP between 75% and 90% of the average of the 27 EU member states) receiving a 15.7% increase in their distribution over 2013.
+It is to be noted in this connection that, while there is practically no freedom to distribute funds allocated by the Commission for transition regions to other regions (and vice versa), there are no specific provisions in the 2013 Regulations as to how the funds allocated for transition regions of a member state should be distributed between those regions. 55.
+The grounds upon which the decision of the Secretary of State is challenged can be expressed in a number of ways.
+I have found the most helpful approach to analyse the challenge as having four lines of attack, the first two of which are aimed at the procedure whereby the UK allocated funds were distributed amongst the 37 regions of the UK, and the third and fourth of which are aimed at the outcome.
+Each of the attacks has been advanced on the grounds of (i) breach of the EU principles of equality or proportionality and/or (ii) breach of domestic public law principles.
+However, the essence of each of the attacks is that the process adopted by the Secretary of State and/or the outcome of that process was unlawful on the grounds that it was (i) not in accordance with the 2013 Regulation, and/or (ii) so unreasonable as to be unlawful.
+In practice, these two grounds march together very closely, and it is hard to envisage circumstances in which only one of them was satisfied (cf Kennedy v The Charity Commission [2014] UKSC 20, [2014] 2 WLR 808, paras 51 56 in relation to domestic law and Human Rights law). 56.
+The four attacks all effectively involve contending that the approach that the Secretary of State adopted to the distribution of the UK allocated funds wrongly failed to have proper regard to the relative economic stages of development of the 37 regions of the UK, or the nine transition regions of England.
+It may seem somewhat artificial to treat the attacks as having separate procedural and substantive aspects, but I have found it helpful to consider whether each of the two stages of the process was in accordance with the law as a matter of principle, before addressing the question of whether the outcome of those processes was in accordance with the law.
+If the procedure is not in accordance with the law, then it would be very difficult, but probably not inconceivable, for the outcome of the procedure to stand.
+On the other hand, if the procedure was lawful, it would nonetheless be quite possible for the outcome to be unlawful.
+After all, one could expect a person responsible for the allocation of such funds to consider, where appropriate, the outcome of the procedure which was proposed before finally adopting it.
+Such an exercise of distribution may frequently involve a degree of iteration in terms of determining a procedure, considering the outcome, and then adjusting the procedure if appropriate. 57. 58.
+The procedural attack on the first stage is based on the proposition that, in the light of the terms of the 2013 Regulation, there can be no justification for apportioning the UK allocated funds on the basis that the four territories, England, Scotland, Wales and Northern Ireland, should each suffer the same reduction in funding from 2013.
+Such a division, runs the argument, pays no regard to the disparities in the stages of development between individual regions, or groups of regions, and it is that with which the 2013 Regulation is concerned. 59.
+The procedural attack on the second stage is based on the proposition that, by adopting a 2013 baseline for all nine English transition regions, the Secretary of State wrongly disregarded the status of Merseyside and South Yorkshire (regions which for convenience I will call the appellants) as phasing in regions in the previous, 2007 2013, period.
+Because of the tapering provisions applicable to such regions during that period, it is said that the appellants are significantly and unjustifiably disadvantaged as against the other seven transition English regions, as those other regions had not been phasing in regions during the 2007 2013 period. 60.
+The two attacks on outcome are founded on what are said to be indefensible discrepancies between the 2014 2020 payments to the appellants and those made to a number of other transition regions in the UK.
+The first such attack relies in particular on Highlands & Islands in Scotland (as well as on Northern Ireland) and essentially arises from the first procedural stage.
+The second attack on outcome focuses on the difference between the appellants and most of the other seven transition regions in England, and arises only from the second procedural stage.
+The proper approach for the court to adopt 61.
+The courts have no more constitutionally important duty than to hold the executive to account by ensuring that it makes decisions and takes actions in accordance with the law.
+And that duty applies to decisions as to allocation of resources just as it applies to any other decision.
+However, whether in the context of a domestic judicial review, the Human Rights Act 1998, or EU law, the duty has to be exercised bearing in mind that the executive is the primary decision maker, and that it normally has the information, the contextual appreciation, the expertise and the experience which the court lacks.
+The weight to be given to such factors will inevitably depend on all the circumstances.
+That is clear from a number of cases, including the decisions of this court in Bank Mellat v Her Majestys Treasury (No 2) [2013] UKSC 39, [2014] AC 700, paras 20 21 and 68 76, and in R (Lord Carlile of Berriew QC) v Secretary of State for the Home Department [2014] UKSC 60, [2014] 3 WLR 1404, paras 19 22, 67 68, and 111, where the judicial review and Human Rights aspects were considered.
+In the EU law context, the same sort of point was made in R (Sinclair Collis Ltd) v Secretary of State for Health [2011] EWCA Civ 437, [2012] QB 394, para 200. 62.
+The importance of according proper respect to the primary decision making function of the executive is particularly significant in relation to a high level financial decision such as that under consideration in the present case.
+That is because it is a decision which the executive is much better equipped to assess than the judiciary, as (i) it involves an allocation of money, a vital and relatively scarce resource, (ii) it could engage a number of different and competing political, economic and social factors, and (iii) it could result in a large number of possible outcomes, none of which would be safe from some telling criticisms or complaints. 63.
+Therefore, like Lord Carnwath, I agree with the Court of Appeal that the Secretary of States decision under consideration in this case is in the classic territory where the courts afford the decision maker a wide margin of discretion [2014] EWCA Civ 1080, [2014] PTSR 1387, para 57.
+This is a particularly forceful factor in the present case, which concerns a decision which involves the distribution of funds between different parts of the United Kingdom, in respect of which the relevant legislation is very imprecise as to the criteria to be adopted.
+I am not so sure that I get much assistance from the test of manifestly wrong (although I acknowledge that it is used by the Court of Justice), unless the expression means that no reasonable government could have taken the decision.
+I agree with the thrust of what Lord Sumption says on this aspect in his paras 22 23, but, although there is obvious force in the passage which he quotes from Lord Hoffmanns speech, I think the issue is susceptible to somewhat more subtle and discriminating analysis than might be inferred from reading that passage.
+To say that the allocation of public expenditure is very much a matter for democratic decision takes matters very little further at least in connection with a decision made by the executive.
+The fact that the legislature assigns such a decision to the executive does not alter the fact that it is the executives decision and not that of the legislature.
+In any event, the legislature will obviously have intended the rule of law to apply, so that such a decision, as with any executive decision, must be susceptible to judicial oversight. 64. 65.
+Nonetheless, a court should be very slow about interfering with a high level decision as to how to distribute a large sum of money between regions of the UK.
+But the degree of restraint which a court should show must depend on the purpose of the allocation, the legal framework pursuant to which the resources are allocated, and the grounds put forward to justify the allocation.
+The line between judicial over activism and judicial timidity is sometimes a little hard to tread with confidence, but it is worth remembering that, while judicial bravery and independence are essential, the rule of law is not served by judges failing to accord appropriate respect to the primary policy making and decision making powers of the executive.
+Some other preliminary points 66.
+Particularly in the light of the differences of opinion in this court, I think it is right to mention that the statutory purpose of the distribution of the UK allocated funds does not appear to me to be by any means solely to reduce imbalances or inequalities between different UK regions.
+The 2013 Regulation refers in article 2.1 to three documents adopted by the European Council, which are identified by Lord Sumption in his para 11, and recital (3) states that the Structural Funds are intended to achieve economic growth, promote harmonious development, and reduc[e] regional disparities, which, according to article 89 are to be achieved through strengthening [of the EUs] economic, social and territorial cohesion and the delivery [of] smart, sustainable and inclusive growth, by investing in growth and jobs and working towards EU wide co operation.
+Accordingly, while the reduction of inter regional imbalances is an important factor when deciding on distribution, a point which is underlined by article 176 of TFEU (which is directed to cohesion), it is by no means the only factor and it is a long term one.
+The 2013 Regulation is concerned not only with articles 174 176, but also article 162 (which is concerned with promoting employment), a point underlined by the thematic objectives in article 9 of the 2013 Regulations, which also demonstrate that economic convergence is simply one of the purposes of the Funds. 67.
+Turning to the exercise of distributing the UK allocated funds for the 2014 2020 period, each of the two stages of that exercise was based on the distribution which had taken place in the previous, 2007 2013, period.
+This approach was apparently adopted partly for reasons of transparency, convenience and simplicity, but there were two further reasons.
+The first was to minimise the risk of a disruptive change in any region or territory in 2014, by ensuring that it did not receive a substantial reduction compared with the payment it received for 2013.
+The second reason was that the distribution for the 2007 2013 period had been effected by reference to a number of different indicators, and the Secretary of States view was that there had not been any significant change from 2006/2007 to 2013/2014 in the economic or other relevant differentials between the regions of the UK.
+It is significant that there has, rightly in my view, been no challenge to this approach as a matter of broad principle (although, for the reasons discussed below, the two specific stages, and their consequences, are challenged).
+To take the payments for the previous period as the baseline may well not be the ideal basis for distribution of funds for the current period, but I find it hard to see how it could be said to be unreasonable, unless it can be shown to be so by reference to specific facts or reasons. 68.
+Another point that should be mentioned is that, as Lord Sumption says, the Commission appears to be content with the Secretary of States distribution process, and has, we were told, adopted it.
+That is a point which has some traction, particularly in the context of a regulation which envisages (in articles 14 17) that a member states proposed distribution between its regions will be submitted to the Commission for the purpose of its entering into a partnership agreement with the member state, and that, before adopting the proposed agreement the Commission will assess [its] consistency with this Regulation.
+However, that does not alter the fact that the courts of this country have a fundamental constitutional duty to apply their view of the law to a decision or action of the executive, when it is challenged.
+In addition, of course, the attack made by the appellants is not only based on EU law, but also on domestic common law. 69.
+Two other factors deserve comment.
+First, the absence of any prior consultation between the Secretary of State and individual regions (as opposed to the devolved governments).
+In my view, if such consultation had occurred and the Secretary of State had taken what had been said into account in a reasonable way (even if he had ultimately rejected it), that would have assisted his case.
+However, the fact that there were no such consultations does not undermine his case as a matter of principle, although it may, of course, in practice have assisted him in avoiding errors.
+In that sense, it makes it easier for the appellants to attack his decision, but in the end the decision has to be assessed on its own merits.
+In some circumstances, a failure to consult can of itself render a decision unlawful, but that will, at least normally, only be where there is a specific obligation or commitment to consult (see for instance R (Bhatt Murphy) v The Independent Assessor [2008] EWCA Civ 755).
+However, it has not been suggested that such an argument could be advanced here. 70.
+Secondly, it is clear from the evidence that a fair amount of thought was involved in the decision making process and four options were considered in relation to the second stage see paras 30 31 and 39 41 of Lord Sumptions judgment.
+That is of some assistance to the Secretary of State, because (i) a considered decision deserves more judicial respect than a relatively unconsidered one, and (ii) it underlines the reasons why the court should be very reluctant to overturn the decision.
+However, it is not very likely to be a determinative point.
+The ultimate decision is either in accordance with the law or it is not.
+Furthermore, the fact that the process adopted is better than three others which were rejected merely shows that there are worse processes, not that the adopted process is acceptable.
+The procedural attack on the first stage: distribution between the four territories 71.
+The first stage of the Secretary of States decision involved distributing the UK allocated funds between the four territories in precisely the proportions which reflected their respective shares in 2013.
+Accordingly, as already explained, because the UKs allocation in 2014 2020 was reduced by 5% from what it had been in 2007 2013, each territorys share was reduced by 5%.
+This aspect of the decision is attacked by the appellants because (i) it was not based on consideration of the relative economic and development demands and needs of individual regions, or even of the four individual territories, and (ii) it limited the Secretary of States freedom of manoeuvre so far as distributions to individual regions were concerned. 72.
+The concern of the appellants, as English regions, is easy to understand.
+It is not really in dispute that, if the approach of the Commission to the assessment of the UK allocated funds had simply been reflected by the Secretary of State when effecting the distribution of those funds between the four territories in 2014 2020, England as a whole would have seen an overall increase of about 7% over 2007 2013, whereas Scotland, Wales and Northern Ireland would respectively have seen decreases of around 32%, 22% and 43%.
+However, these percentages have been arrived at by retrospective, informal analysis of the sum allocated.
+The Commission has been anxious to emphasise that the basis upon which each member states allocation was fixed should not be disclosed and that any guesses as to how the allocations were fixed should be avoided.
+In my view, the appellants objection to the first stage adopted by the Secretary of State should be rejected.
+In the first place, it is inappropriate to equate the function of the Secretary of State, when deciding how to distribute the UK allocated funds among the regions, with the function of the Commission, when deciding how to allocate the funds among the member states.
+The terms of the 2013 Regulation, and the documents to which it refers, are obviously relevant when considering the Secretary of States approach to distribution.
+However, in contrast to the position relating to the assessment of the funds to be allocated to a member state, the 2013 Regulation includes no formula as to how those funds should be distributed among the regions of a member state. 73. 74.
+Thus, Annex VII to the 2013 Regulation sets out a detailed Allocation Methodology governing the allocation of funds by the Commission among member states.
+The allocation is assessed by aggregating a sum for each region, which sum is assessed on a per capita basis, with the per capita amount being greatest for regions with less than 75% of the EU average GDP per capita and least for those with more than 90%, with the transition regions being in the middle (see paragraphs 1 4 of the Annex).
+However, this rather precise methodology does not apply to the distribution of those funds within member states.
+And the fact that the Commission refuses to say how a member states allocation was determined serves to show that no specific approach by a member state to the distribution of its funds among its regions is encouraged in practice. 75.
+There is no provision which expressly limits the freedom of a member state when deciding how to distribute its allocated funds between regions.
+It is true that article 176 TFEU refers to redress[ing] the main regional imbalances and structural adjustments of regions whose development is lagging behind, but it does not require convergence and it has nothing to say about timing.
+Having said that, in the light of the terms of the 2013 Regulation, I accept that the level of economic development of each of its regions must be a point of real relevance when a member state decides how to distribute its allocated funds between them.
+Thus, if it could be shown that it was treated as irrelevant by a state, then the decision would be likely to be held unlawful.
+However, as I have sought to explain in para 66 above, it appears clear that a member state is not required to base the distributions of its allocated funds between regions solely by reference to their relative stages of economic development, let alone to their GDP per capita.
+Further, the thematic objectives referred to in article 9 of the 2013 Regulation have to be taken into account. 77. 76.
+The fact that, by contrast with the detailed directions with regard to allocation between member states, there are no express constraints on member states as to how they should distribute their allocated funds renders it difficult to justify a substantial degree of constraint as to the manner of distribution.
+While article 93 of the 2013 Regulation limits transfers between the three types of region, it does nothing to limit transfers between regions of the same type, which again suggests a relatively high degree of freedom when the state is deciding how to distribute allocated funds between regions with the same status.
+The fact that such transfers would be notional, as the Commission does not reveal the split between individual regions in its allocation, itself suggests that it cannot have been intended that member states were to be very limited in their scope for deciding how to distribute between regions.
+In the course of his impressive judgment, Stewart J said that, essentially for the reasons discussed in paras 73 76 above, the appellants attack on the Secretary of States decision to adopt what I have called the first stage falls at first base [2014] EWHC 232, [2014] LGR 389, para 73.
+I agree that those reasons establish that the attack faces an insurmountable problem in so far as it relies on the point that the distribution of payments among the regions of the United Kingdom does not simply reflect their relative state of economic development.
+However, it can still be argued that the apportionment between the four territories is arbitrary and inconsistent with the purpose of the 2013 Regulation, because the UK allocated funds were a lump sum for the United Kingdom as a whole, and the apportionment between the four territories pays no regard to the relative claims of the 37 regions of the United Kingdom, and unjustifiably ties the hands of the Secretary of State in relation to the distribution of the funds between those individual regions.
+I accept that there is real force in that point, but the decision that the 5% reduction in the United Kingdoms allocation should be visited equally on, or pro rata between, England, Scotland, Wales and Northern Ireland is very much a policy decision, or a politically based decision, which is therefore 78. particularly difficult for a court to evaluate and therefore to criticise, and therefore to condemn.
+The decision reflects both the increasingly decentralised nature of UK administration and the political realities of the devolution process.
+As I see it, neither of those two features is an illegitimate factor for the Secretary of State to take into account, and neither is a factor whose importance a court is well placed to assess, let alone to dispute.
+I agree with Lord Sumption that the decision of the Grand Chamber in (Case C 428/07) R (Horvath) v Secretary of State for the Environment, Food and Rural Affairs [2009] ECR I 6355 supports the notion that the first stage of the decision was justifiable under EU law. 79.
+Apportioning the UK allocated funds between the four territories on this pro rata approach based on the 2007 2013 payments may not be a course which most people would expect, or even which many ministers would have adopted.
+But I do not consider that it can be said that it is contrary to the 2013 Regulation, particularly as it contains no express restriction as to how nationally allocated funds are distributed; nor do I consider that it could be said to be irrational.
+Indeed, I think that there is some force in the point that the Secretary of States view that each territory should be protected in the 2014 2020 period against a substantial overall reduction from the amount it received in the 2007 2013 period accords with the inclusion in Appendix VII of a ceiling on any increase (para 13), and a floor on any decrease (para 16), in a member states allocation in the 2014 2020 period as against the 2007 2013 period.
+The procedural attack on the second stage: distribution between English regions 80.
+The complaint of the appellants about the second stage of the distribution process is that they should not have been treated in the same way as the other seven English transition regions because, unlike the other seven regions, the appellants were phasing in regions in the 2007 2013 period.
+This means that, although the appellants will receive a 15.7% increase in 2014 on what they had received the previous year, they are due to receive in the 2014 2020 period around 61% less than they received over the previous 2007 2013 period, whereas the seven other transition regions will receive rather more in the 2014 2020 period than they received for the 2007 2013 period. 81.
+The explanation for the fact that the appellants will receive a year on year increase between 2013 (the last year of the previous period) and 2014 (the first year of the current period), but a substantial overall aggregate decrease between the two periods, is that they were phasing in regions for the 2007 2013 period.
+In other words they were regions, which during the 2000 2006 funding period had had GDPs per capita of below 75% of the average of the EU member states (and hence were Objective 1 regions), but by 2007 were no longer in that category, but were competitiveness regions (ie regions having GDPs per capita of between 75 90% of the EU average), owing to their relative economic growth.
+This meant that during the 2007 2013 period their allocation of funds had started at a higher level than the other competitiveness regions, which had had GDPs per capita of 75 90% of the average of the member states during the 2000 2006 period (and therefore had been Objective 2 regions in that period).
+However, as the name suggests, the level of funds allocated to phasing in regions in 2007 tapered down over the next four years, so that by 2011 it was at the national average level per capita as other competitiveness regions. 83. 82.
+By contrast, the seven other English regions were not only competitiveness regions during the 2007 2013 period, but they were effectively in the same category (namely Objective 2 regions) during the 2000 2006 period, as they each had a GDP per capita between 75 90% of the EU average in 2000.
+In my view, the attack on the second stage should also be rejected.
+The appellants cannot logically invoke the fact that they received more in the 2007 2013 period than other competitiveness regions to justify their being treated more favourably than the other competitiveness regions for the 2014 2020 period.
+This is because the only reason that they were treated better in the earlier period was to smooth the passage from having been Objective 1 regions in the 2000 2006 period to being competitiveness regions in the 2007 2013 period.
+From 2011, when the tapering stopped, the appellants received aid at the average rate per capita for competitiveness regions between 2011 and 2013, and there is no reason why the Secretary of State should be expected to treat them any differently for the 2014 2020 period.
+As Stewart J said in para 78(iii) of his judgment, if the Secretary of State had adopted the approach suggested by the appellants, it would have unduly advantaged the [appellants] in relation to the other English transition regions. 84.
+However, the appellants raise a separate argument based on the point that the annual payments for the 2007 2013 period made to the appellants, as phasing in regions, were, exceptionally and unlike the payments to other competitiveness regions, determined by the Commission rather than by the UK government.
+Accordingly, runs the argument, using the payment received in 2013 as the base for determining the 2014 payment for each transition region in England involved treating the appellants differently from the other seven English transition regions.
+There is undoubted force in this argument, particularly given that (reflecting the UK governments distribution decision in 2006) the 2013 payments to the other transition regions in the north and midlands of England were increased above what they would otherwise have been, owing to the UK governments decision to favour the north and midlands over the south, whereas this did not apply to the 2013 payments to the appellants. 85.
+This point has force.
+None the less, given (i) the fact that it was a reasonable decision in principle to take the 2013 payments for each region as the basis for calculating the 2014 payments, (ii) the wide margin of discretion accorded to member states when deciding how to distribute allocated funds nationally, (iii) the large number of factors which are potentially relevant, (iv) the long term nature of the aims of the 2013 Regulation and its predecessors, (v) the fact that the Secretary of State appreciated and addressed the level of payment per capita received by the appellants, and (vi) the perceived desirability of maintaining a degree of continuity for each region, I have reached the conclusion that this point should also be rejected.
+The relevant Ministers and civil servants in the Department of Business, Innovation and Skills were aware of the fact that the proposed distribution would result in the appellants receiving a relatively low sum per capita when compared with other transition regions, they considered the possibility of increasing the appellants share of the UK allocated funds.
+However, they decided that such a course would be unfair on other transition regions, especially as the appellants had fared better than those other regions, as competitiveness regions, thanks to phasing, during the years 2007 2010.
+The procedural attacks: summary 86.
+For the reasons given in paras 71 85 above, I consider that the appellants attacks on the two stages adopted by the Secretary of State for deciding how to distribute the UK allocated funds in 2014 2020 fail, in so far as they are considered as a matter of principle.
+However, as explained in paras 56 60 above, the fact that the procedure adopted by the Secretary of State was defensible in principle is not the end of the matter.
+It is still necessary to examine the outcome in the light of the criticisms raised by the appellants.
+The attack on outcome: Highlands & Islands and Northern Ireland 87.
+The first attack on outcome is primarily based on a comparison between the appellants and the Scottish region of Highlands & Islands, and it largely results from the first stage.
+As explained above, although the appellants will receive a 15.7% increase in 2014 on what they had received in 2013, the total amount they are due to receive in the 2014 2020 period would be over 60% less than they received over the previous 2007 2013 period, whereas Highlands & Islands would suffer no decrease in the 2014 2020 period as against the 2007 2013 period.
+In actual euros per capita, Highlands & Islands will receive about three times as much as the appellants will receive (around 400 per capita as against around 130 per capita). 88.
+The status of the appellants as phasing in regions in the period 2007 2013 is explained in para 81 above.
+The status of Highlands & Islands is slightly different.
+Like the appellants, it is a transition region under the current, 2014 2020, regime, but, unlike the appellants, it was a phasing out (rather than phasing in) region, during the 2007 2013 period.
+This meant that (i) like the appellants, it had been an Objective 1 region, with a GDP per capita of below 75% of the average of the EU member states in the 2000 2006 period, and by 2007 it was no longer in that category, but (ii) unlike the appellants, its exit from the category arose not because of an improvement in GDP per capita, but because of the accession of ten new (and, on average, poorer) member states to the EU between 2000 and 2007.
+Accordingly, Highlands & Islands was subject to a rather different tapering regime under the allocation arrangements for 2007 2013, which only reached the level for competitiveness regions in 2013. 89.
+On that ground, the courts below considered that it was simply inappropriate to compare Highlands & Islands with the appellants, and therefore that any attack by the appellants on the outcome of the Secretary of States decision based on the Highlands & Islands 2014 2020 payment was misconceived.
+That may be right, but, at least if one confines oneself to the reason for, and consequences of, the difference between phasing in and phasing out regions, I am not particularly impressed with that view, because all three regions were competitiveness regions, and any phasing had ended by 2013.
+However, the differences in co financing (ie the extent of the domestic contribution, as briefly explained by the Judge in para 50(c) of his judgment) may conceivably justify the view taken by the courts below.
+It is unnecessary to decide that rather nice point: even if one assumes that it is relevant that Highlands & Islands had a different status from the appellants in the 2007 2013 period, the difference in outcome between its 2014 2020 aggregate payment and those for the appellants is striking.
+As already mentioned, the appellants will receive around 130 per capita, whereas Highlands & Islands will receive around 400 per capita.
+This follows from the combination of (i) the fact that Scotland was more favourably treated than England at the first stage, and (ii) the fact that Highlands & Islands is the only transition region in Scotland, and it was thought to be wrong to reduce its 2014 payment to bring it more into line with the English transition regions as that would benefit the other three, richer, regions in Scotland. 90. 91.
+A somewhat similar, if less forceful, point can be made by the appellants about Northern Ireland, also a transition region in 2014 2020, which is to receive around 260 per capita in 2014.
+Again, it is true that it was a competitiveness region in 2006 2013 period, and therefore was not strictly comparable with the appellants (or with Highlands & Islands), but I doubt that that point has much force (subject to the co financing point referred to at the end of para 89 above).
+But, even if it does, the fact that in 2014 Northern Ireland receives twice the amount per capita that the appellants receive is rather striking. 93. 92.
+These disparities do give one pause for thought.
+Many people in the position of the Secretary of State might well have taken the view that the disparities such as those discussed in paras 90 91 above would have justified making adjustments as between the payments which would otherwise be made to each region, or even reconsidering the whole methodology.
+However, bearing in mind the wide margin of discretion which should be accorded to the Secretary of State in the distribution of the funds, I do not consider that this justifies the conclusion that the distribution scheme which he adopted was unlawful.
+I start with the point that the disparities arise primarily from the first stage of the distribution process, which, as already mentioned, does not seem to me to be objectionable in principle.
+The first stage almost inevitably will result in a degree, and no doubt often a significant degree, of disparity between a region in one territory and a very similar region in another.
+The same sort of problem could arise between similarly developed (or undeveloped) regions in different member states.
+Particularly bearing in mind that the apportionment of the UK allocated funds between the four territories of the UK was based on a high level political decision which is lawful in principle, it would require a compelling case on the outcome before a court could rule the decision unlawful in practice.
+I do not consider that a compelling case has been made. 94.
+When considering the disparities relied on by the appellants, it is a mistake to assume that, merely because a region has in 2014 and/or had in 2013 the same status as, or had reached the same stage of economic development as, another region, that the two regions should be accorded a similar level of distribution.
+The purpose of distributing the funds is not only to improve the growth, or relative growth, of poorer regions: it is also to achieve the multifarious thematic objectives.
+Accordingly, it is dangerous to focus, and inappropriate to focus exclusively, on GDP per capita when comparing different regions. 95.
+The selection of a regions GDP per capita figure as governing the appropriate level of payment may well reflect the Commissions overall assessment of the UK allocated funds under the provisions of the 2013 Regulation.
+However, as already mentioned, (i) the Regulation has no such provisions in relation to the distribution of the UK allocated funds between individual regions, and (ii) the payments in 2007, on which the 2014 payments are based, were arrived at by reference to a basket of indicators, which were assumed to be equally valid in 2013, on the basis that there had been no significant shift in the social geography of the United Kingdom.
+To take obvious examples which are admittedly speculation on my part, Highlands & Islands with its low population density and its meteorological and geographical character must be a relatively expensive region to service, and Northern Ireland has unique social issues. 96.
+The danger of focussing on GDP per capita can be demonstrated by comparing two sets of regions which were both English competitiveness regions in 2007 2013 and are both English transition regions in 2014 2020, and have very similar GDP per capita.
+First, Devon receives a payment for 2014 2020 of 67 per capita, whereas Cumbria receives 166; secondly, Lincolnshire receives 137 per capita, whereas Tees Valley & Durham receives 280 per capita.
+Given that these two examples do, on any view, involve comparing like with like, and that the 2014 payments are based on those for the 2007 2013 period, it underlines the point that the Secretary of State has not based his distribution, even within a territory, simply on the basis of a regions GDP per capita.
+Indeed, that is clear from the Secretary of States evidence, which, as mentioned in para 67 above, explains that the distribution for the 2007 2013 period, on which the 2014 payments were based, (i) was not effected simply by reference to a regions GDP per capita but was based on much more material, and (ii) was intentionally loaded in favour of regions in the north and midlands of England as against those in the south (hence Devons payment per capita is much lower than Cumbrias). 97.
+Furthermore, as is clear from what I have just said and is discussed more fully in paras 100 103 below, it is not by any means necessarily the case that the appellants would have been treated better, or that Highlands & Islands or Northern Ireland would have been treated worse, than they have been treated, if there had been no first stage.
+There are many ways in which the distribution of the UK allocated funds could have been effected. 98.
+Particularly in the light of these features, I consider that the Secretary of State was entitled to take the view that, whatever scheme he adopted would prove objectionable to some regions, and that if he adhered to the two stage system he did adopt and made adjustments, that too would cause problems and give rise to complaints.
+Accordingly, he was entitled to decide that it was simpler and politically advisable to stick with the scheme and not make adjustments. 99.
+This brings one back to the point that the Secretary of States decision involved a substantial measure of political judgment.
+Accordingly, his decision to adhere to a distribution scheme which was clear, simple and transparent, rather than one which was nuanced, subjective and complex is one which it is difficult for a court to challenge unless of course the outcome appears to be inconsistent with the 2013 Regulations or simply unreasonable.
+When one considers the figures mentioned in paras 90 91 above together with the reasons summarised in paras 94 98 above, it appears to me that it cannot fairly be said that the appellants have managed to establish either ground.
+The attack on the outcome: the other English transition regions 100.
+The second attack on outcome is based on a comparison between the 2014 payments to the appellants and the other seven English transition regions in the light of their relative stages of economic development.
+This attack is effectively based solely on the second stage of the distribution decision in relation to the 2014 2020 period.
+In my opinion, the attack should be rejected for very similar reasons to those given in paras 93 99 above.
+However, it is fair to say that the starting point, namely the nature of the decision in principle, is somewhat less of a formidable hurdle for the appellants.
+The decision how to distribute the UK allocated funds between the English transition regions was a more workaday, relatively less high level political, decision than the first stage decision.
+Nonetheless, as already explained, it was a defensible policy decision at least in principle and it must inevitably carry with it a degree of inevitable rough justice. 101.
+However, although the initial hurdle may be lower for the appellants attack on the outcome for English transition regions than it is in relation to Highlands & Islands and Northern Ireland, I consider that, when one examines the appellants case on this fourth aspect, it should be rejected. 102.
+In a nutshell, the principal criticism raised by the appellants is that, given that he based the 2014 2020 distributions on the distributions in the previous period, the Secretary of State should have assessed the allocation for the English transition regions by reference to the average annual distribution which they received for the 2007 2013 period rather than the 2013 distribution which they received.
+On the face of it, at least, I do not consider that the Secretary of States decision on this point can be criticised.
+The difference arising from the choice of the 2013 distribution only affects regions which were phasing in regions during the 2007 2013 period, and the appellants are the only English regions which can claim to suffer in this way.
+However, there is, at the very least a real argument that it would be wrong to take the benefit of their tapering payments for the years 2007 2013, into account when assessing their 2014 distributions, given that these payments were intended to soften the blow of their having become competitiveness regions, a softening which was intended to be spent by 2013, and therefore, a fortiori, by 2014. 103.
+Quite apart from this, as already mentioned, it is apparent that there is no direct or simple correlation between the level of economic development of an English transition region and its 2014 payment, and there is no clear reason to think that the appellants would be better off under another scheme. 104.
+The relevant figures for the nine English transition regions are set out in para 55.4.2 of Stewart Js judgment, and I have already discussed some of the figures in para 96 above.
+More specifically, the appellants, each of whom receive around 130 per capita during 2014 2020 (123 in the case of South Yorkshire, and 135 in the case of Merseyside), fare better than Devon (67 per capita, as already mentioned), but worse than five of the other six English transition regions, if one looks simply at the payment per capita and the level of the regions GDP per capita.
+Ignoring Devon, the other six English transition regions received between (i) slightly more than the appellants, Lincolnshire at 137 per capita, and (ii) a little more than twice as much as the appellants, Tees Valley & Durham at 280 per capita.
+Ignoring the two outliers, Devon and Tees Valley & Durham, the figures vary between 137 per capita for Lincolnshire and 167 for Shropshire & Staffordshire.
+Lincolnshires GDP per capita is lower than either South Yorkshires or Merseysides, whereas Shropshire & Staffordshires is a little lower than South Yorkshires and somewhat higher than Merseysides. 105.
+Ignoring Devon, which receives less per capita because it is in the south (see paras 84 and 96 above), it is noteworthy that Lincolnshire (which in terms of GDP per capita is somewhat worse off than either of the appellants), receives a payment which is very similar on a per capita basis to that of the appellants, whereas Tees Valley & Durham (which in terms of GDP per capita is only slightly lower than Lincolnshire) receives twice as much.
+On the other hand, Cumbria (which is richer than any other English transition region) receives a payment per capita significantly more than Lincolnshire. 106.
+Thus, the figures demonstrate that there is no reliable correlation between payment per capita and GDP per capita for 2014 2020, even for English regions which were ordinary (ie not phasing in or phasing out) competitiveness regions in 2013 and transition regions in 2014.
+That does not mean, of course, that any level of payment for the appellants would be justified.
+However, the important point for present purposes is that, on a GDP per capita basis, (i) the appellants plainly fare better than one region, Devon, and, more significantly, fare consistently with another region, Lincolnshire, and (ii) there is nothing like a precise correlation with the 2014 payments per capita. 107.
+This analysis of the distributions to the other English transition regions thus leads to the conclusion that criticism of the outcome of the Secretary of States method of distributing the UK allocated funds is not soundly based, if it rests on the presumption that each English transition region (or even each transition region in the north and midlands) should get the same payment per capita, or the same payment per capita adjusted to take account of the regions 2014 GDP per capita.
+Indeed, as mentioned in para 96 above, that conclusion is consistent with the Secretary of States evidence, which states that the 2014 payment for transition regions was arrived at by a fixed percentage uplift on the 2013 payment, which itself had been arrived at by reference to a number of different indicators in 2007. 108.
+Furthermore, it appears to be very difficult, at least on the evidence in these proceedings, to assess what difference it would have made if the appellants 2014 2020 payments had been determined by reference to what they would have received in 2013, or in the period 2007 2013, had they been ordinary competitiveness regions, rather than phasing in regions.
+Conclusion 109.
+In these circumstances, I have come to the conclusion that this appeal fails.
+I must, however, confess that I have reached this conclusion with some hesitation.
+Although I do not agree by any means entirely with the approach adopted by Lord Mance (who places more emphasis than I do on the criteria and limits imposed by the 2013 Regulation on the Commission, when considering a member states freedom of movement when distributing allocated funds) or by Lord Carnwath (who considers that the Secretary of State has a greater duty to justify his distributions between individual regions than I believe is mandated by the 2013 Regulation), I see force in much of their reasoning, and indeed I was at one time persuaded that they had reached the right conclusion. 110.
+While I would dismiss this appeal, it is right to re affirm the courts duty to declare that decisions of the executive, whether relating to the distribution of funds or otherwise, are unlawful if they are insufficiently justified or do not accord with the lawful aims or requirements pursuant to which the distributions in question are made.
+I appreciate that the decision under consideration in this case was difficult and potentially complex, and that it involved many competing factors, political and social as well as economic.
+However, with the expertise and information available to the Secretary of State, one would have hoped for a more sophisticated and considered, and a more consultative, approach to the question of how to apportion such a large sum of money between different regions of the United Kingdom.
+I note from the evidence put in by the Secretary of State that it does appear that a much more careful approach was adopted in relation to the distribution for the 2007 2013 period. 111.
+In summary, then, while the decision as to how to distribute the UK allocated funds between the 37 regions of the United Kingdom may have been unimpressive in some respects, it was not unlawful.
+LORD CLARKE: 112.
+I have read the other judgments in this appeal with great interest (and no little admiration).
+I have throughout been inclined to agree with Lord Sumption.
+It does seem to me that the court should be very reluctant to interfere with decisions of the kind under scrutiny here because they raise questions of policy which are essentially matters for the executive.
+I recognise that in an appropriate case it is the duty of the court to interfere.
+However, I agree with Lord Neuberger at para 66 that the decisions under review involved a range of different policy considerations and that it cannot fairly be said that the choices made by the Government were unlawful.
+Like Lord Neuberger I have had some doubts in the course of the argument, especially in the light of the judgment of Lord Mance.
+However, again like Lord Neuberger, I prefer the reasoning of Lord Sumption to that of Lord Mance.
+I do not detect any significant difference between the reasoning of Lord Sumption and that of Lord Neuberger.
+I agree with them and Lord Hodge that the appeal should be dismissed.
+LORD MANCE: (with whom Lady Hale agrees) Introduction 113.
+The European Union (EU) has a set of structural and investment funds (the ESI funds), of which the three main elements relate to the Common Agricultural Policy, the Cohesion Fund and the Structural Funds.
+The Structural Funds, defined by article 1 of Council Regulation (EC) No 1303/2013, consist of the Regional Development Fund (ERDF) and the somewhat smaller Social Fund (ESF).
+The ERDF is established under article 176 TFEU, and the ESF under articles 162 to 164 TFEU.
+The EU makes available the Structural Funds on the basis of its overall assessment of each Member States regional development needs, but their allocation within each Member State is, subject to limits, the responsibility of that State.
+The EU operates on the basis of seven year budgets, each of which determines the Structural Funds available for the next seven year period.
+The budget for the years 2014 2020 was thus agreed in 2013. 114.
+On this appeal various local authorities in the Merseyside and South Yorkshire regions challenge the defendant Secretary of States allocation of the Structural Funds within the United Kingdom during the EU budgetary period of 2014 2020.
+The challenge focuses on two successive decisions taken by the Secretary of State.
+The first was to allocate the funds received in respect of the period 2014 2020 between the individual territories or nations of the United Kingdom (that is England, Scotland, Wales and Northern Ireland) in the same proportions as in the previous seven year period 2007 2013.
+The second was to base the allocations for English transitional regions in the period 2014 2020 on the amounts each such region received in 2013 under the scheme in place during that previous seven year period.
+These decisions, taken individually or in combination, are alleged to have affected Merseyside and South Yorkshire in a manner which, it is submitted, is not supported by the relevant EU Regulations and involves anomalies and inequalities of treatment which cannot be and have not been justified. 115.
+Structural funding is made available by reference to the NUTS level 2 (NUTS 2) regions.
+NUTS 2 regions are second tier regions corresponding broadly to large counties in the United Kingdom.
+They are defined by the Nomenclature of Territorial Units for Statistics (NUTS 2006/EU27) (NUTS) established pursuant to article 1 and Annex I of regulation (EC) 1059/2003.
+There are 30 NUTS 2 regions in England (including Merseyside and South Yorkshire), 4 in Scotland and 2 in Wales while Northern Ireland is a single NUTS 2 region.
+For the purposes of structural funding, the EU also identifies categories of NUTS 2 regions.
+It determines the total funding which each Member State receives from the ERDF and ESF by reference to its own assessment of regional development needs within each such category.
+The categorisation adopted has changed from seven year period to seven year period, as has the extent to which the relevant regulations define at an EU level the amount which each region is to receive, or leave this to the relevant Member State to determine.
+All Structural Funds funding has to be co financed or matched by domestic investment in a defined percentage. 116.
+The broad purposes for which the Structural Funds are made available are defined in article 174 TFEU in the case of the ERDF and article 162 in the case of the ESF.
+Article 174 is part of a title consisting of articles 174 178, headed Economic, Social and Territorial Cohesion.
+It provides: In order to promote its overall harmonious development, the Union shall develop and pursue its actions leading to the strengthening of its economic, social and territorial cohesion.
+In particular, the Union shall aim at reducing disparities between the levels of development of the various regions and the backwardness of the least favoured regions.
+Among the regions concerned, particular attention shall be paid to rural areas, areas affected by industrial transition, and regions which suffer from severe and permanent natural or demographic handicaps such as the northernmost regions with very low population density and island, cross border and mountain regions.
+Article 176 further provides that the ERDF is intended to help to redress the main regional imbalances in the Union through participation in the development and structural adjustment of regions whose development is lagging behind and in the conversion of declining industrial regions. 117.
+Article 162 provides that the ESF is established: In order to improve employment opportunities for workers in the internal market and to contribute thereby to raising the standard of living and that it shall aim to render the employment of workers easier and to increase their geographical and occupational mobility within the Union, and to facilitate their adaptation to industrial changes and to changes in production systems, in particular through vocational training and retraining. 118.
+Articles 164 and 178 provide for the European Parliament and Council to adopt implementing regulations relating to, respectively, the ESF and the ERDF, while article 177 confers further more generally worded power to make regulations defining the tasks, priority objectives and organisation of such funds. 2000 2006 119.
+During the period 2000 2006 regions were classified in three categories, which have been described as Objectives 1, 2 and 3.
+Objective 1 (the most needy) contained five UK regions, namely Cornwall and the Scillys, West Wales and the Valleys, Highlands & Islands, Merseyside and South Yorkshire, plus the whole of Northern Ireland. 2007 2013 120.
+During the period 2007 2013, Regulation (EC) No 1083/2006 provided for a different categorisation.
+The most needy and the least needy regions were the two main categories, and have been described as respectively convergence and competitiveness regions.
+But in between them, under articles 8.1 and 8.2 of the regulation, were two sub categories to which support was allocated on a transitional and specific basis, and these have been described as phasing out and phasing in regions. 121.
+Regulation No 1083/2006 determined the precise amounts allocated to particular regions falling within the convergence and the two transitional categories.
+All that was left to the United Kingdom was to determine the allocation between competitiveness regions of the funds allocated by the EU to United Kingdom competitiveness regions.
+There was no scope for any transfer of funds between categories.
+The allocation between competitiveness regions was done on a basis which, because of the use of NUTS 1 as distinct from NUTS 2 criteria and a safety net limiting any reduction by reference to the prior period of 2000 2006 to 6.7%, did not necessarily correspond precisely with but nonetheless reflected (in the words of counsel for the Secretary of State, Mr Jonathan Swift QC) an approximation of each such competitiveness regions economic needs.
+The indicators and safety net used by the Government to determine regional allocations within the competitiveness category also had the intended effect of channelling relatively high levels of funding to northern regions, compared with southern regions with similar economic profiles. 122.
+Under article 8, read with para 6 of Annex II, of Regulation 1083/2006, the transitional support for phasing out regions was 80% of their individual 2006 per capita aid intensity level in 2007 and a linear reduction thereafter to reach the national average per capita aid intensity level for the Regional competitiveness and employment objective in 2013.
+For phasing in regions, it was 75% of their individual 2006 per capita aid intensity level in 2007 and a linear reduction thereafter to reach the national average per capita aid intensity level for the Regional competitiveness and employment objective by 2011. 123.
+The purpose of transitional support was thus to smooth the relevant regions movement from the most needy category to full competitiveness by the linear reduction of funding.
+However, the final figure, based on the national average per capita aid intensity level for competitiveness regions was necessarily aspirational.
+In other words, whether or not any phasing in or phasing out region actually achieved the same level of development as the average for all competitiveness regions was something that could only be determined with time.
+There was no guarantee that any of such regions would do so. 124.
+In the case of the United Kingdom the convergence regions (those with less than 75% of the GDP of the 25 EU member states) were Cornwall and the Scillys and West Wales and the Valleys.
+The only phasing out region (ie with more than 75% of the GDP of the 25 EU member states, but less than 75% of the GDP of the 15 member states) was Highlands & Islands.
+The only phasing in regions (those which had been old Objective 1 regions, but with GDP now exceeding 75% of the average of that of the 25 EU Member States) were Merseyside and South Yorkshire. 125.
+The linear reduction prescribed by the regulation led both phasing out and phasing in regions to receive a flow of funds tapering sharply downward during the seven year period.
+The tapering extended in the case of phasing out regions over the full seven year period, but took in the case of phasing in regions only four years, leading to the receipt of monies based on the national average per capita aid intensity level for competitiveness regions during each of the last three years, 2011 2013.
+Taking rounded figures, Merseyside thus received some 161m in 2007, 129m in 2008, 95m in 2009, 60m in 2010 and 23m in each of the three years 2011 to 2012, while South Yorkshire received some 142m in 2007, reducing each year to 52m in 2010 and then remaining stable at 21m in each of the last three years.
+The phasing out regions only received monies based on the national average per capita aid intensity level for competitiveness regions in the last year, 2013. 2014 2020 126.
+For the period 2014 2020, Regulation (EU) No 1303/2013 applies.
+This is expressed to have been made with particular regard to article 177.
+Recital 1 records that article 174 TFEU provides that, in order to strengthen its economic, social and territorial cohesion, the Union is to aim at reducing disparities between the levels of development of the various regions and the backwardness of the least favoured regions or islands Recital 77 recites that in order to promote the TFEU objectives of economic, social and territorial cohesion, the investment for growth and jobs goal should support all regions and that to provide balanced and gradual support and reflect the level of economic and social development, resources under that goal should be allocated from the ERDF and the ESF among the less developed regions, the transition regions and the more developed regions according to their GDP per capita in relation to the EU 27 average. 127.
+The regulation states both common or general principles (article 1) and thematic objectives (article 9) which are to apply to all ESI funds and fund specific, general rules governing the two Structural Funds and the Cohesion Fund (articles 1, 2(4) and 4 and Part 3).
+In relation to the Structural Funds, article 89 (the first in Part 3) identifies one mission and two goals to be pursued for the purpose of that mission.
+The mission is stated in article 89(1): 89(1).
+The Funds shall contribute to developing and pursuing the actions of the Union leading to strengthening of its economic, social and territorial cohesion in accordance with article 174 TFEU.
+The actions supported by the Funds shall also contribute to the delivery of the Union strategy for smart, sustainable and inclusive growth.
+The goals are defined as follows: 89(2).
+For the purpose of the mission referred to in paragraph 1, the following goals shall be pursued: (a) Investment for growth and jobs in Member States and regions, to be supported by the Funds; and (b) European territorial cooperation, to be supported by the ERDF. 128.
+The thematic objectives which under article 9 all ESI Funds should support do not alter or detract from the fund specific mission and goals identified in the case of the Structural Funds in Part 3.
+On the contrary, article 9 makes clear that they are introduced in order to contribute to the Union strategy for smart, sustainable and inclusive growth as well as the Fund specific missions pursuant to their Treaty based objectives, including economic, social and territorial cohesion They represent, in short, ways in which the fund specific mission and goals may be promoted.
+They are identified as strengthening research, technological development and innovation; enhancing access to, and use and quality of ICT; enhancing the competitiveness of SMEs and of the agricultural, fishery and aquaculture sectors; supporting the shift towards a low carbon economy; promoting climate change adaptation, risk prevention and management; preserving and protecting the environment and promoting resource efficiency; promoting sustainable transport and removing bottlenecks in key network infrastructures; promoting sustainable and quality employment and supporting labour mobility; promoting social inclusion, combating poverty and any discrimination; investing in education, training and vocational training for skills and lifelong learning; enhancing institutional capacity of public authorities and stakeholders and efficient public administration.
+Article 9 concludes by stating that these thematic objectives are to be translated into priorities that are specific to each of the ESI Funds and are set out in the Fund specific rules. 129.
+Article 91 provides that, for the purposes of the mission identified in article 89(1), the resources available for the Structural Funds and the Cohesion Fund are some 322,000m in 2011 prices, 96.33% (some 313,000m) of which is under article 92(1) for the growth and jobs goal, while only 2.75% is under article 92(9) for the territorial cooperation goal. 130.
+Critically, for present purposes, article 90 introduces a new three fold categorisation for the period 2014 2020.
+This is quite different from the categorisation used in the prior period 2007 2013.
+It identifies less developed regions (those with less than 75% of the GDP of the now 27 Member States), transition regions (those with GDP between 75% and 90% of the average of the 27 Member States) and more developed regions (those with more than 90% of the average GDP of the 27 Member States).
+Article 90(4) provides for the Commission to decide which regions fall within each category, by a list valid for the whole period 2014 2020. 131.
+Further, a fixed percentage of the total resources of 313,000m available for the growth and jobs goal is under article 92(1) allocated to each of the defined categories of region viz 52.45% for less developed regions, 10.24% for transition regions and 15.67% for more developed regions (with 21.19% also going to the Cohesion Fund and 0.44% for additional funding for outermost regions).
+The fixed nature of these allocations is identified in article 93.1: The total appropriations allocated to each Member State in respect of less developed regions, transition regions and more developed regions shall not be transferable between those categories of regions.
+Article 93.2 gives Member States a very limited possibility of altering these fixed allocations.
+It allows the Commission in duly justified circumstances which are linked to the implementation of one or more thematic objectives to accept a Member States proposal to transfer up to 3% of the total appropriation for a category of regions to other categories of regions. 132.
+Annex VII prescribes the allocation method for each Member States entitlement in respect of less developed, transition and more developed regions (basically, in each case, the sum of allocations or shares calculated for each of its individual NUTS level 2 regions, on bases taking into account specified factors including GDP).
+The total allocated to the United Kingdom for less developed regions was some 2.118 billion, for transition regions some 2.3266 billion and for more developed regions some 5.126 billion.
+The Commissions calculations of individual regional needs are not published (though the parties have been able to work out what they approximately were), and they have no domestic application. 133.
+The overall funds allocated to the United Kingdom for the period 2014 2020 were (after allowing for inflation) reduced by 5% compared with 2007 2013.
+The Secretary of State was under article 93.2 permitted to transfer to the two less developed regions in the United Kingdom, that is Cornwall and the Scillys and West Wales and the Valleys, 3% of the budget which the EU had assigned to transition and more developed regions, and to split the amount so transferred between these two regions, achieving thereby an equal 16% cut in funding compared with the prior seven year period.
+The Partnership Agreement 134.
+Within the above parameters, it is for the United Kingdom to adopt national rules on the eligibility of expenditure (see Recital 61), by preparing a Partnership Agreement, to be approved by the Commission.
+Partnership Agreement is defined in article 2 as: Partnership Agreement means a document prepared by a Member State with the involvement of partners in line with the multi level governance approach, which sets out that Member State's strategy, priorities and arrangements for using the ESI Funds in an effective and efficient way so as to pursue the Union strategy for smart, sustainable and inclusive growth, and which is approved by the Commission following assessment and dialogue with the Member State concerned. 135.
+Article 4(4) and 5 provide: 4(4).
+Member States, at the appropriate territorial level, in accordance with their institutional, legal and financial framework, and the bodies designated by them for that purpose shall be responsible for preparing and implementing programmes and carrying out their tasks, in partnership with the relevant partners referred to in article 5, in compliance with this Regulation and the Fund specific rules. 5(1).
+For the Partnership Agreement and each programme, each Member State shall in accordance with its institutional and legal framework organise a partnership with the competent competent urban and other public authorities; regional and local authorities.
+The partnership shall also include the following partners: (a) (b) economic and social partners; and (c) relevant bodies representing civil society, including environmental partners, non governmental organisations, and bodies responsible for promoting social inclusion, gender equality and non discrimination. 136.
+Any Partnership Programme prepared for the purposes of articles 4(4) and 5(1) must self evidently comply with, and be prepared on the basis of considerations relevant to, the fund specific mission and goals of the regulation.
+It must also comply with more general principles of European and domestic law, including those of equality and rationality.
+The present challenges were brought at a stage when the programme submitted by the United Kingdom to the Commission had not yet been approved.
+The Commission was kept informed about the challenge, but regarded it as an internal issue for the United Kingdom to resolve.
+It stated that, if this Courts ruling required the United Kingdom Government to review the Partnership Agreement after it had been adopted, this could be done through the mechanism of article 16 of the regulation.
+Article 16(4) enables a Member State to propose an amendment, whereupon the Commission will carry out a (re )assessment and, where appropriate, adopt a decision within three months.
+In the event, the Commission has, since the oral hearing, issued a decision dated 29 October 2014 approving the Partnership Programme proposed by the United Kingdom.
+Given the Commissions stance, the United Kingdom Government also, successfully, resisted a claim for disclosure of the communications between it and the Commission about the Partnership Agreement, as not relevant to any issue in this appeal. 137.
+No submission has been made to the Supreme Court at any stage that the Commission should be regarded as the judge of the present challenge made to the Secretary of States decisions, or that any decision that the Commission might make, or has now made, approving the Partnership Programme in its present form has or could have any effect on the challenge, if otherwise valid, to such decisions.
+Lord Sumptions statements in paras 10 and 24 of his judgment that the Commission is the mechanism of compliance envisaged in the Regulation is not based on any argument which was or could in the circumstances fairly be put before the Court.
+I am also unable to accept the further assertion that the Commission is able to review the merits of the Secretary of States value judgments in a way that is beyond the institutional competence of any court.
+There is no information at all whether or how the Commission has looked into the subject matter of the present challenges.
+The suggestion that it is beyond the institutional competence of any court, let alone a national court to review the merits of the Secretary of States value judgments furthermore begs the question whether the appellants present challenges are to value judgments.
+Courts, national and international, have a significant role in reviewing the conformity of administrative decisions with the legislative framework within which they are made.
+It is their role to consider the relevance of the considerations on the basis of which such decisions are taken, and their compliance with fundamental principles of equality and rationality.
+The Secretary of State and the Commission were both fulfilling administrative functions, the former at the national, the latter at a supranational level.
+The issue in detail 138.
+The critical issue on this appeal is whether the Secretary of States decisions were in conformity with the legislative framework.
+The appellants case on this falls under three heads: (i) the Secretary of State was obliged when making such decisions to take as their basis the relative economic needs and disparities of the regions, but in fact reached the decisions on a different basis; (ii) the decisions were in breach of the general EU principle of equality; (iii) the decisions were in breach of the general EU principle of proportionality. 139.
+In relation to (i), the Secretary of State accepts that the underlying purpose of Structural Funds is to reduce development disparities between regions and the Court of Appeal was, in my view correctly, content to assume that the objective of reducing economic disparities was a mandatory relevant consideration and that the Secretary of State was therefore required to have regard to the relative economic needs of the transition regions (para 88).
+The fund specific mission of the Structural Funds is under article 89(1) of the regulation the strengthening of economic, social and territorial cohesion in accordance with article 174 TFEU.
+This is to be pursued overwhelmingly through the goal of investment for growth and jobs (articles 89(2)(a) and 92(1) of the regulation) with reference to the specified thematic objectives set out in article 9 of the regulation. 140.
+In relation to (ii), the Secretary of State accepts that the principle of equality applies.
+The Court of Appeal stated the position before it as follows (para 65): 65.
+The equal treatment principle requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified: see, for example, the Arcelor Atlantique case [2008] ECR I 9895, para 23.
+Justification is not in issue in this case.
+Accordingly, the only question is whether there was a failure to treat like cases alike and unlike cases differently.
+Later, in para 82, the Court of Appeal again noted that the Secretary of State does not rely on justification, but added: We acknowledge that, as a matter of legal analysis, there is a clear distinction between the fact of differential treatment and its justification.
+But in the circumstances of this case, as is clear from the evidence of Dr Baxter the dividing line is not easy to maintain.
+I will revert to Dr Baxters evidence later in this judgment. 141.
+In relation to (iii), the Secretary of State submits and the Court of Appeal agreed that proportionality can add nothing to a challenge based on the principle of equality or rationality, in the absence of some specific legal standard in the light of which it can gain greater content.
+This seems to me correct, and I shall proceed on that basis. 142.
+With regard to the two principal grounds which are therefore open to the appellants, the Secretary of State submits that both the challenged decisions involved complex evaluative judgments, which can only attract what may be described as a light standard of review.
+Referring to its previous decision in R (Sinclair Collis Ltd) v Secretary of State for Health [2011] EWCA Civ 437, [2012] QB 394, the Court of Appeal said (para 70) that: In principle, the more complex and the more judgment based the decision, the greater the margin of discretion [that] should be afforded to the decision maker.
+That too is a proposition which I accept as relevant, in any context where different institutions of the State, the administration and the courts, have different institutional competence and the courts are asked to review the administrations decision making in an area which is with the administrations particular competence.
+But that does not apply to, or exclude closer review of, a decision which is based on irrelevant considerations or fails to treat like cases alike.
+Further, the lack of prior consultation with the appellants, or with Merseyside and South Yorkshire, and the informality of the process by which the Secretary of State made his decisions, take this case outside the most extreme category of cases in which courts have expressed reluctance judicially to review public funding decisions.
+The first decision 143.
+Against this background, it is necessary to examine more closely the Secretary of States two impugned decisions.
+The first arose as follows.
+During the period 2014 2020, the only less developed regions are the two former convergence regions.
+Transition regions include not only the three former phasing out and phasing in regions, but also eight former competitiveness regions, including Northern Ireland.
+The total EU funding for the ERDF and ESF was divided between the three categories of region as follows.
+The total allocated to the United Kingdom for less developed regions was some 2.118 billion, for transition regions some 2.3266 billion and for more developed regions some 5.126 billion. 144.
+The overall funds allocated to the United Kingdom for the period 2014 2020 were (after allowing for inflation) reduced by 5% compared with 2007 2013.
+The Secretary of State was under article 93.2 permitted to transfer to the two less developed regions in the United Kingdom, that is Cornwall and the Scillys and West Wales and the Valleys, 3% of the budget which the EU had assigned to transition and more developed regions, and to split the amount so transferred between these two regions, achieving thereby an equal 16% cut in funding compared with the prior seven year period.
+The Secretary of State then took the amounts allocated to each of the four territorial units making up the United Kingdom that is England, Wales, Scotland and Northern Ireland in the period 2007 2013 and determined that each such territorial unit should receive the same amount as in that period, less a 5% reduction. 145.
+At this stage, Dr Baxter confirms in her first witness statement, that Ministers did not consider the split of funding within Scotland or England and that Ministers were aware that increasing the funding for the Devolved Administrations [ie in comparison with that which would have resulted from a region by region assessment] would mean less for certain regions in England, as allocations had to be made from a set budget category for each category of region.
+However, it was decided that this would be dealt with at the next stage of the allocation process and that only the big picture within the UK would be looked at when trying to distribute the cut fairly between the UK nations. 146.
+The first decision was taken after the Department of Business Innovation and Skills had calculated that an allocation to all United Kingdom regions on a basis similar to that used by the Commission to arrive at the figures set out in para 132 above would lead to England receiving 439m more than in the period 2007 2013, while Wales, Scotland and Northern Ireland would receive, respectively, 494m, 272m and 216m less. 147.
+As a result of the first decision: (a) Northern Ireland, a unit consisting of one transition region which had previously been a competitiveness region, received the same as it had received both in 2013 and (because it had been receiving monies on a flat line basis) in each year during the period 2007 2013 less 5%. (b) Highlands & Islands received the yearly average of its total receipts during the period 2007 2013, less 5%.
+This was effectively inevitable.
+The only other regions in Scotland were competitiveness regions, and the Secretary of State was not likely to (and after discussion with the Scottish Ministers did not) increase their allocation in order to reduce that of Highlands & Islands. (c) The allocation for West Wales and the Valleys was set as described in para 144, with the effect of allocating to the one remaining Welsh region, East Wales, a more developed region, the whole of the remaining amount allocated to Wales.
+The second decision 148.
+The second decision arose as follows.
+Within England there are in all nine transition regions.
+Seven of these are former competitiveness regions, and two are former phasing in regions, Merseyside and South Yorkshire.
+The Secretary of State determined that, taking the amount that each region has received in the year 2013 (not the annual average it had received over the whole period 2007 2013), each should receive a 20% uplift, reduced by 4.3% for technical assistance and for funding of the national offenders programme, making a final uplift of 15.7%.
+Regions in the more developed category received a 5% uplift, reduced again by 4.3% making a 0.7% uplift, while Cornwall and the Scillys received a 16% reduction.
+The effects of the two decisions 149.
+The combined effect of the two decisions was that, while Northern Ireland was guaranteed an allocation based, albeit not exactly, on an assessment of its actual needs during the prior period and while Highlands & Islands would receive an allocation based on the average of its receipts as a transitional region over the whole of the prior period, Merseyside and South Yorkshire received an allocation which was, in contrast, not referable to any assessment of its actual needs or its average receipts during the prior period, but based on the average of the aid which had been estimated as required by competitiveness regions in the prior period (since that was the basis of Merseysides and South Yorkshires receipt of aid in the year 2013). 150.
+By any measure of development and need, however, Merseyside and South Yorkshire still fall well below the average for competitiveness regions.
+The indicators of economic development selected by the Government itself for allocating funding in 2007 2013 were per capita business expenditure on research and development, start ups, qualifications, GVA per workforce job, percentages of working age population unemployed or inactive, percentages of working age population without qualifications and with NVQ level 1 qualifications.
+Applying such indicators, Merseyside and South Yorkshire are ranked third and sixth most deprived out of the total of 34 regions not falling into the convergence and phasing out categories in 2007 2013.
+Using the Commissions methodology, Merseyside and South Yorkshire would have received about 315m and 236m respectively, while on the Governments current approach, they would receive only 202m and 178m respectively, in each case for the whole period 2014 2020.
+It is common ground that, even on the basis of the calculation most favourable to the United Kingdom Government that the Secretary of State has been able to support, Merseyside and South Yorkshire would, if their entitlement during the period 2014 2020 were computed as if they had then been competitiveness regions, receive at least 10.3m and 24.1m more than they would be under the Governments present intended allocation.
+They submit that the figures would be much greater.
+GDP is not of course the only possible measure of any regions entitlement, and Lord Neuberger has identified variations in funding even between regions whose funding was arrived at on a comparable basis.
+But the use of inconsistent bases to arrive at the level of funding is on its face likely to lead to distortions, unless it can be justified by considerations relevant under Regulation 1303/2013.
+The combined effect of the two decisions was in my view to preclude this. 151.
+The further combined effect of the two decisions is that Merseyside and South Yorkshire will as transition regions receive funding calculated, as a matter of substance, on a different basis from that received by other English transition regions which were formerly competitiveness regions.
+First, by taking the year 2013 as the base for the seven former English competitiveness regions, the Secretary of State was taking as his base for those seven regions funding which applied in each of the years 2007 2013 and was calculated on a basis with a relationship to each such regions needs and characteristics.
+Second, the 2013 base reflected in the case of the seven former competitiveness regions the Governments deliberate policy of favouring northern regions over southern regions, which it was free to adopt in the period 2007 2013 in relation to regions which fell in that period into the competitiveness category. 152.
+In contrast, the 2013 base taken for Merseyside and South Yorkshire was derived from an average for United Kingdom competitiveness regions, which these two regions do not match.
+Secondly, their 2013 base was pre determined by the EU by Regulation (EC) No 1083/2006.
+It was not a figure which was (or could have been) uplifted to cater for the United Kingdom Government policy of favouring northern over southern regions.
+Yet on the evidence Merseyside and South Yorkshire are among the neediest of northern regions. 153.
+In the light of the above, the appellants are therefore right, I consider, when they observe that (a) the first decision committed a significant part of the transition funding to two particular transition regions (Northern Ireland and Highlands & Islands) on a basis which continued to give, subject only to a 5% reduction, the average level of funding received throughout the whole of the prior seven year period, (b) it did this without regard to the extent to which this would impact on the funding available for the new range of English transition regions (including seven former competitiveness regions) formed by the Commissions re categorisation of regions for the period 2014 2020 and (c) in reality there would be an adverse impact, since effectively preserving the pot for Northern Ireland and Highlands & Islands (less 5%) was bound to diminish the pot available for the nine English transition regions, including not only Merseyside and South Yorkshire, but also seven former competitiveness regions now entitled to enhanced funding as transition regions in the period 2014 2020.
+Lord Sumptions contrary view in paras 35 and 50 ignores the reduced size of the pot for the new category of transition regions embracing seven former competitiveness regions, once the previous allocation to Northern Ireland and Highlands & Islands was effectively ring fenced (less 5%), compared with the average funding they received throughout the whole prior seven year period, by the Secretary of States first decision.
+As to the second decision, the appellants are also right, in my opinion, in submitting that this allocated monies to Merseyside and South Yorkshire on a basis which, although superficially similar, was in fact fundamentally different from that applied to other English transition regions, as well as Northern Ireland and Highlands & Islands. 154.
+In her first witness statement, Dr Baxter identified the reasons for dividing the United Kingdoms Structural Fund allocation between the four territories constituting the United Kingdom.
+She stated that they were transparency, simplicity, consistency and a balance taking account of the status of the devolved administrations under the United Kingdoms constitutional settlement.
+However, none of these reasons relates directly to the fund specific mission of strengthening economic and social cohesion and the reduction in that connection of development disparities between regions or indeed with delivery of the Union strategy for smart, sustainable and inclusive growth or the thematic objectives introduced to contribute thereto (see paras 126 128 above).
+On the contrary, they involve an initial four way division, essentially for political reasons, which operates irrespective of the position in individual regions, and potentially and actually to the detriment of one or more English regions.
+Dr Baxters witness statement effectively accepts this (para 145 above).
+Regional disparities, and consideration of the mission and goal identified in article 89 of Regulation 1303/2013 were displaced by territorial and political considerations deriving from the United Kingdoms devolution settlements.
+In so far as she goes on to suggest that any adverse effect would or might be addressed at the second stage of decision making, I have already noted in para 153(c) that this would not have been practicable and in any event it was not done. 155.
+The Secretary of State seeks to make good this approach by reference to his view that there had been no significant change from the years 2006 2007 to the years 2013 2014 in the economic or other relevant differentials between different United Kingdom regions.
+Lord Sumption endorses this response in para 35, as does Lord Neuberger in para 67.
+But the response could only have been relevant, had the categorisation of and treatment of regions introduced by Regulation No 1303/2013 remained the same as it was in the previous period 2007 2013 under Regulation No 1083/2006.
+This was not the case.
+A division of total available funding between the four territories of the United Kingdom in the period 2014 2020 in the same totals (less 5%) as had applied throughout the whole period 2007 2013 was bound to lead to anomalies in the light of (a) the re categorisation of regions under Regulation No 1303/2013, (b) the recognition of seven former competitiveness regions as meriting enhanced treatment as transition regions, along with Merseyside and South Yorkshire, and (c) the different bases and levels of funding which different transition regions would necessarily enjoy in the period 2014 2020 compared with the period 2007 2013.
+The consistency and balance involved in giving each devolved administration the same amount (less 5%) were in fact bound to lead to inconsistency and imbalance.
+Two unlike situations (those existing in the periods 2007 2013 and 2014 2020) were treated alike, in a manner and with results that none of Dr Baxters four reasons justifies. 156.
+Reference was made in argument to the Court of Justices decision in (Case C 428/07) R (Horvath) v Secretary of State for Environment, Food and Rural Affairs [2009] ECR I 6355.
+But that decision turned on the constitutional settlement involved in devolution.
+It was of its essence that the devolved administrations had under the relevant devolution arrangements the primary responsibility for implementing the common agricultural policy, and on that basis the Court of Justice held that divergences between the measures provided for by the various administrations cannot, alone, constitute discrimination (para 57).
+In para 56 the Court distinguished discrimination resulting from a measure adopted by that Member State implementing a Community obligation, referring in this regard to its decision in Joined Cases 201/85 and 202/85.
+Further, the relevant measure expressly required and permitted Member States to define, at national or regional level, minimum requirements for funding support, a provision which the court interpreted as expressly recognising the possibility for the Member States, to the extent authorised by their constitutional system or public law, to permit regional or local authorities to implement Community law measures, by defining such minimum requirements. 157.
+The present case is critically different.
+The Structural Funds are allocated to the United Kingdom, primarily to strengthen its social and economic cohesion.
+The Secretary of State retains responsibility for the internal allocation of the Structural Funds within the United Kingdom.
+That he consulted with the devolved administrations in relation to the decisions which he took does not affect this, or alter his duty to avoid discrimination between those affected by his decisions.
+If he chose to divide up the total funding available between territories of the United Kingdom, he was obliged to do so in a way which was consistent with the fund specific mission of cohesion and the goal of growth and jobs set by Regulation No 1303/2013, and would lead to like cases being treated alike, and unlike cases differently, across the whole United Kingdom.
+The mathematical division between the four territories of the funding allocated to the United Kingdom for the period 2014 2020 was, as noted in para 155 above, bound to lead to discrepancies detrimental to cohesion, in particular when arrived at in disregard of the re categorisation of regions effected by Regulation No 1303/2013. 158.
+The appellants challenge to the Secretary of States decisions, on the basis of the discrepancies to which they lead between the bases of allocation to Merseyside and South Yorkshire and to other regions within the United Kingdom is, I consider, also made good.
+All transition regions must in my view be regarded as comparable, and on this basis differences in treatment between them require to be considered and justified.
+The Secretary of State appears to have foregone any case of justification in the courts below, but, even if justification is treated as a live issue or an issue which is in the present context inextricably linked with comparability, I do not consider that the difference in treatment has been shown to be legitimate. 159.
+Merseyside and South Yorkshire were given an allocation which took as relevant funding they received in 2013 by reference to an average for competitiveness regions, which clearly did not reflect their position or needs.
+Highlands & Islands on the other hand received funding based on the average of the tapered funding they received over the whole 2007 2013 period.
+They were both transitional regions.
+Their funding reduced in each case to the same level in 2013.
+Highlands & Islands was admittedly a phasing out region, of whom it could be said that in 2006 their GDP had been less than 75% of that of the original 15 EU Member States.
+This could not be said of Merseyside and South Yorkshire and they were only transitional regions because they had been Objective 1 regions in the period 2000 2006.
+But, nevertheless, funding in the period 2007 2013 was in each case arranged on the basis that it reduced to the average for competitiveness regions by 2013.
+There was no reason to assume, without analysis, that the needs of Highlands & Islands merited a complete preservation (subject only to a 5% reduction) of their average funding in the period 2007 2013, whereas Merseyside and South Yorkshire required no more than the preservation with a 15.7% uplift of their very low level funding in the year 2013, based on an average which did not on any view reflect their actual position.
+There is (with respect to Lord Sumptions comment in para 42 about additional funding) no basis for concluding that Merseyside and South Yorkshire received (but Highlands & Islands did not) some sort of uncovenanted bonus through the higher early funding allocated to them during the prior period 2007 2013 which should now be carried forward as a form of debit to their account in respect of the period 2014 2020.
+Differences in the co financing received in the period 2007 2013 between phasing out regions (which had only to find 33.33p for every pound of EU funding) and phasing in regions (which had to match EU funding pound for pound) play against rather than for continuing to award Highlands & Islands funding on a more favourable basis than Merseyside and South Yorkshire during the period 2014 2020 when both are now transition regions. 160.
+Lord Sumptions reference to additional funding and much of paras 20, 28, 37 and 42 44 of his judgment are focused on a case which was originally advanced by the appellants that Merseyside and South Yorkshire should, like Highlands & Islands, have received funding by reference to an average of what they had received in the period 2007 2013.
+However, save to highlight the obvious disparity with the funding of Highlands & Islands, the appellants in their case before the Supreme Court focused on the disparity arising from the use of the base year 2013.
+In that respect, in my opinion, the appellants have made good their challenge to the Secretary of States decisions.
+There was no good reason for awarding funding on the basis of the same 15.7% uplift over the 2013 level both in relation to English transition regions which had been competitiveness regions and to Merseyside and South Yorkshire which had not been, but whose funding in 2013 had been based on an average which did not reflect their actual position.
+Contrary to Dr Baxters statement in para 54 of her first witness statement, the result was not to treat all English Transition regions in the same way, since the nature of the 2013 base differed significantly between them. 161.
+Dr Baxter states, in her first witness statement, para 49, that attention was given to the possibility of using, indeed that Ministers did see a strong case for using, a basket of indicators based on the latest economic data to determine the allocations within England during the period 2014 2020, together with applying a suitable safety net.
+She says that this option was rejected because it would have led to too great a shift of resources from north to south, and would have had to be countered by a safety net which, she suggests, would have taken one back to the present position.
+But an assessment of actual development needs would have avoided the use of 2013 allocations as a base for transition regions, and would have meant that Merseyside and South Yorkshire would have been treated on the same basis as other English transition regions.
+Further, in circumstances where, as a matter of general policy, a shift in funding from south to north was desired, that could and would then have been given effect in relation to all English regions, including Merseyside and South Yorkshire.
+The actual basis of allocation fails to give Merseyside and South Yorkshire the benefit of any such policy.
+Any additional safety net could also have been applied on a basis which affected all English transition regions in like fashion. 162.
+In proceeding as he did, therefore, the Secretary of State in my view gave priority to irrelevant considerations (the maintenance in the period 2014 2020 of similar funding, less 5%, for each United Kingdom territory to that which obtained in the period 2007 2013, when the re categorisation of regions during the current period makes the comparison inappropriate), failed to treat like situations alike (although all were transition regions, Merseyside and South Yorkshire were treated quite differently from Northern Ireland and Highlands & Islands) and treated unlike situations alike (by taking 2013 as an appropriate base for funding for all English transition regions, although it had been arrived at in the case of Merseyside and South Yorkshire on a quite different basis bearing no relationship to their actual needs, in contrast to the basis on which it had been arrived at in the case of other transition regions).
+Whether the matter is viewed under EU law or at common law, these are manifest flaws which are neither problems of value judgment nor fall within the margin of discretion undoubtedly due when value judgments are in issue. 163.
+I would only add that, even if I had arrived at a different view with regard to the legitimacy of the first decision, the discrepancy in the bases on which funding was allocated to different English transition regions would still have led me to conclude that the second decision was illegitimate. 164.
+I have also had the benefit of reading the judgment prepared by Lord Carnwath, who reaches the same conclusions as I do and with whose reasoning in paras 176 187 I find myself in substantial agreement. 165.
+It follows that, in my opinion, the appeal should be allowed, and the Secretary of State required to reconsider and re determine the allocations between all the transition regions within the United Kingdom in the light of the guidance given in this judgment.
+LORD CARNWATH: 166.
+I agree with Lord Mance that this appeal should be allowed, substantially for the reasons given by him.
+While I agree also with much of Lord Sumptions analysis, I am not persuaded that he provides an adequate answer to the essential complaints made by Mr Coppel QC.
+In the circumstances I will confine myself to some comments on the correct general approach, and a short explanation of my reasons for disagreeing with the majority.
+General approach 167.
+Equal treatment and proportionality are of course well established principles of EU law, but they are not the starting point.
+Whether under European or domestic law, such general principles have to be seen in the context of the legislative scheme in question.
+I agree with the Court of Appeal (para 57) that these decisions were concerned with matters of broad economic, social and political judgment, for which the objectives were widely defined.
+As they said, it is classic territory for affording the decision maker a wide margin of discretion (or appreciation), where the court should only interfere if satisfied that the decisions were manifestly inappropriate or manifestly wrong.
+On the other hand, the lack of formality in the decision making process distinguishes the case, for example, from domestic authorities where public funding decisions have been subject to review in Parliament, and the courts have accordingly a very restrictive view of the scope for judicial review (see R v Secretary of State for Environment, Ex p Hammersmith and Fulham London Borough Council [1991] 1 AC 521). 168.
+The Court of Appeal referred to the exhaustive review of the relevant European and domestic authorities by all three members of the Court of Appeal in R (Sinclair Collis Ltd) v Secretary of State for Health [2012] QB 169.
+I do not find it necessary to analyse the differences of emphasis between the three judgments in that case, nor to enter into discussion about different formulations of the test.
+I agree with Lord Neuberger of Abbotsbury MR (para 200): The breadth of the margin of appreciation in relation to any decision thus depends on the circumstances of the case and, in particular, on the identity of the decision maker, the nature of the decision, the reasons for the decision, and the effect of the decision.
+Further, because the extent of the breadth cannot be expressed in arithmetical terms, it is not easy to describe in words which have the same meaning to everybody, the precise test to be applied to determine whether, in a particular case, a decision is outside the margin.
+It is therefore unsurprising that in different judgments, the same expression is sometimes used to describe different things, and that sometimes different expressions are used to mean the same thing.
+As the Court of Appeal said of the present case, the context is one where the treaty and the regulation together confer a wide area of policy choice on both the Commission and the member states, within the objectives set by them.
+Further, since responsibility is shared between the European and national agencies, there is no reason for any material differences in the approach of the courts to their respective decisions. 170.
+For similar reasons, it is unhelpful in the present context to look for a clear cut distinction between issues of comparability on the one hand and justification on the other.
+As the regulation makes clear (and as Mr Coppel QC ultimately accepted), the Secretary of State had a wide discretion as to the factors he could properly take into account in comparing the various regions for the purpose of allocating funds.
+This exercise cannot be equated to a simple comparison (as in R (Chester) v Secretary of State for Justice [2014] AC 271) between prisoners and non prisoners, or the issue of equality between men and women (specifically addressed in article 7 of the regulation). 171.
+None of the cases relied on by Mr Coppel QC seems to me sufficiently close to the present context to advance his argument for a more stringent test.
+For example he cites Franz Egenberger GmbH Molkerei und Trockenwerk v Bundesanstalt fr Landwirtschaft und Ernhrung (Case C 313/04) [2006] ECR I 6331 para 33, for the proposition that the general principle of equality requires that comparable situations must not be treated differently and different situations must not be treated alike unless such treatment is objectively justified.
+The case itself related to the narrow issue of where applications for butter import licences should be lodged, and provides no assistance in the present case. 172.
+The highpoint of his argument perhaps is in Socit Arcelor Atlantique et Lorraine v Premier Ministre (Case C 127/07) [2008] ECR I 9895, where the equal treatment principle was treated by the European court as applicable to a scheme for trading in greenhouse gas emission allowances.
+The issue was whether that principle had been breached by a scheme which applied to the steel sector but not to the plastics or aluminium sectors (para 24).
+The court accepted that the emissions from all these activities were in principle in a comparable situation, since they all contributed to greenhouse emissions and were capable of contributing to the functioning of a trading allowance scheme (para 34).
+It went on, first, to accept that the different treatment had caused disadvantage to the steel sector (paras 42 44), but, secondly, to hold that it was justifiable (not manifestly less appropriate than other measures), taking account of the broad discretion allowed to the Commission (paras 57 59), and the difficulties of managing a novel and complex scheme with too great a number of participants (paras 60ff). 173.
+The case offers some help to Mr Coppel QCs argument, to the extent that even in an area of broad policy discretion the court adopted a three stage analysis comparability, disadvantage, justification.
+The margin of discretion was applied only at the last stage.
+However, there the issue of comparability turned on a narrow view of the purpose of the scheme, which applied equally to all industrial emissions whatever the form of the industry.
+There is no parallel with the much more varied objectives of the present scheme, which allow a broad discretion at all stages, and make it impossible to draw a meaningful distinction between comparability and justification. 174.
+The Secretary of State no doubt needed to adopt rational and consistent criteria for his allocations, within the objectives set by the regulation, and he needed to be able to justify those criteria and their application as between the regions.
+But nothing is gained for this purpose by treating justification as a separate stage in the legal analysis.
+The court must look at the reasoning as a whole to decide whether it was affected by legal error, or otherwise manifestly inappropriate.
+Issues of equal or unequal treatment and proportionality may play a part in that assessment, in both European and domestic law (see Kennedy v Charity Commission [2014] UKSC 20, [2014] 2 WLR 808, para 54, per Lord Mance). 175.
+The danger of the formulaic approach advocated by Mr Coppel QC is that it may make it more difficult to separate the wood from the trees, and distract attention from the ultimate question, under EU law or domestic law: whether something has gone seriously wrong with the decision making process such as to justify the intervention of the court.
+The two decisions 176.
+It is unnecessary to repeat Lord Sumptions description of the two decisions.
+The essential complaint against the first decision is simply stated.
+The decision to start by dividing the UK allocation between the four jurisdictions had the effect of limiting the Secretary of States options to achieve fairness at the second stage, in a way which was not justified by anything in the scheme or objectives set out by the regulation. 177.
+The complaint against the second decision turns on the adoption of 2013 as a base for all transition regions.
+The appellant authorities from the two regions say that, by taking the 2013 figure as a base for all, the Secretary of State was not comparing like with like.
+In the previous round all the other transition regions had been competitiveness regions, but their allocations had been determined by reference to their relative economic and social circumstances, rather than the application of a single formula, and the allocations were constant throughout the period.
+By contrast the allocations of the two regions, as phasing in regions, had been determined, not by reference to their relative circumstances, but by a special formula set by the regulations; the last year was based on the national average for all competitiveness regions throughout the UK (regardless of relative strength).
+That meant that their last year did not reflect either their own circumstances relative to the other transition regions, nor in particular the extra funding allowed to the north in the previous period, to reflect its greater development needs a balance which had not changed in the interim. 178.
+This is explained most clearly in the evidence of Mr Eyres (para 33).
+Although the precise methodology for calculating allocations to the competitiveness regions in the previous period had not been disclosed, the government had confirmed that it took account of the greater development needs of the North and Midlands, and, as he understood, it had used a basket of indicators reflecting the relative deprivation of those areas.
+Had the allocations for 2013 been calculated on the same basis as the neighbouring regions they would have been allocated far in excess of the amounts resulting from the phasing in formula.
+He adds (para 50(3)): The Secretary of State seems to assume that the additional, transitional funding was awarded between 2007 2010, leaving the funding for 2011, 2012 and 2013 as the correct funding allocation for Merseyside and South Yorkshire.
+Yet this ignores the fact that the funds allocated in 2011, 2012 and 2013 were significantly below the level for Competitiveness regions in the North and Midlands, which had no protected status.
+This is because the allocation for 2013 was based on the 'national average for Competitiveness regions and takes no account of the GDP and high levels of deprivation within individual Competitiveness regions in North and Midlands, including within Merseyside and South Yorkshire themselves (which the Government did take into account when making 2007 2013 allocations to Competiveness regions). 179.
+In short, the appellants case can be reduced to two apparent anomalies which required explanation: (a) Alone of all the transition regions in the UK (including Highland & Islands, which had been also subject to a tapered funding regime in the previous period), the two regions were given no protection from a substantial reduction in funding (65%) as compared with the previous period taken as a whole; (b) Alone of all the English transition regions, their funding was fixed by reference to a base which had taken no account of their relative economic and other circumstances in the previous period.
+I will take them in turn. 180.
+The first, as respects the comparison with Highlands & Islands, was in large part attributable to the prior decision to adopt a two stage process.
+In itself there could be no objection to the Secretary of State taking account of the territorial divisions and governance arrangements within the UK.
+The provisions of the regulation confer a wide discretion on member states to take account of local structure at all levels.
+Although the decisions on funding were not themselves devolved, the devolved administrations had a clear interest in the process, both as partners, and (presumably) as possible sources of co financing. 181.
+I note also that no objection was taken on behalf of the two regions to the two stage process at the time of the first decision.
+On the contrary Mr Eyres records (para 40) that the Mayor of Liverpool, as Chair also of the Liverpool partnership, wrote to the minister welcoming the decision to amend the EU formula to provide a 95% safety net for devolved areas provided the same principles were applied in England. 182.
+However, the judge was wrong with respect to treat this as a socio economic decision by the Secretary of State which thereby absolved him of the need for further comparisons between different parts of the UK (para 72).
+That would in my view be contrary to the scheme of the EU regulation (and indeed to the devolution settlement), which gives him responsibility for the fairness and consistency of the distribution as between all the regions in the UK, so far as not predetermined by the Commission.
+Rightly, that was not how the case was argued by Mr Swift QC in the Court of Appeal or before us.
+As has been seen, his submission, in substance accepted by the Court of Appeal, turned on lack of comparability between phasing in and phasing out regions. 183.
+I agree that there were significant differences of detail between the two categories, as explained by Dr Baxter, although it is not clear why some of them were reasons for less favourable treatment for the two regions.
+For example, the fact that the co financing regime was more onerous for them seems on its face a point going the other way.
+However, none of these points addresses the main complaint.
+The reasons which led the Secretary of State to include Highlands & Islands in the 95% safety net by reference to the 2007 2013 funding as a whole, were apparently no less applicable to the two regions.
+That indeed was the point made by the Mayor of Liverpool at the time.
+Conversely, the main reason which led the Secretary of State to treat the two regions differently in this respect from the other English transition regions (that is, the higher funding for 2007 2013 overall, tapered down to the average competitiveness level) was in principle no less applicable to Highlands & Islands. 184.
+As Dr Baxter indicates, the Secretary of State was aware of this apparent discrepancy, but as far as Scotland was concerned he felt constrained (in practice if not in law) by the overall budget envelope that had already been set (para 62 of her witness statement).
+The idea of a safety net for the two regions was rejected because of the negative impact on the other transition regions.
+That with respect is little more than a statement of the obvious.
+If I take from Peter to give to Paul, it will no doubt have an adverse impact on Peter, but that says nothing about the balance of fairness as between the two. 185.
+Similar issues arise in respect of the second decision.
+Viewed by reference simply to a comparison with the other English transition regions (and ignoring Highlands & Islands), he was entitled to take account of the different funding regime in the previous period.
+Since the overall funding for the two regions in that period had been on a more generous basis than for the others, and since that was by definition special and transitional, there was no reason to carry it forward into the exercise for 2014 2020.
+Furthermore, if their figure for 2013 had been related in some way to their own circumstances (as was the case with the other transition regions), it might have formed a suitable base for the subsequent period.
+However, that was not the case.
+The 2013 figure for the two regions (as for Highlands & Islands) reflected the average of all the former competitive regions, a category which had included even the most prosperous regions (that is, those now categorised as more developed). 186.
+The Secretary of State was faced with a difficulty in that the transition regions were a new intermediate category, encompassing a relatively wide range of relative development (between 75% and 90% of the EU average).
+Had his distribution been based, as in the previous period, on a comparison of economic or other factors, within the scope of the regulation, it would have been very difficult to challenge.
+It is perhaps understandable that he preferred a more simple blanket approach to the new category, particularly as his view of the general economic balance had not changed.
+However, that could only be justified if he took steps to ensure that the two regions were dealt with on a comparable basis.
+His principal reason for his not doing so was, not a view as to the relative needs of the two regions as compared to the others, but again the negative impact for them of a 22% cut where they (and probably the Commission) had expected enhanced levels of funding.
+This, by implication, assumed a finite budget for England, in effect predetermined by the first decision. 187.
+I conclude that the criticisms made by the two regions of the decision making process, including both decisions, have not been satisfactorily answered.
+I do so with some hesitation in view of the risk of over simplification of some very complex issues and material.
+It matters not, in my view, whether this is expressed as an issue of unequal treatment or lack of proportionality under European law, or inconsistency and irrationality under domestic law, the anomalies are in my view sufficiently serious to have required explanation which has not been given, and which renders the resulting decisions manifestly inappropriate under EU and domestic principles. 394.
+The term manifestly inappropriate in European jurisprudence was traced back by Arden LJ (para 115ff) to R v Minister for Agriculture, Fisheries and Food, Ex p Fedesa (Case C 331/88) [1990] ECR I 4023, a case relating to decisions implementing the Common Agricultural Policy.
+She showed that it has been treated as applicable also in appropriate cases to decisions of national legislatures or other decision makers (para 129).
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+The appellant, O, is a woman of Nigerian nationality, aged 38.
+In November 2003, with her son, then aged three, she illegally entered the UK.
+In July 2008 she pleaded guilty to offences of cruelty towards her son, who had returned to live in Nigeria, and the court sentenced her to 12 months imprisonment and recommended that she be deported.
+On 8 August 2008 her sentence came to an end, whereupon the respondent, the Home Secretary, detained her at first pending the making of a deportation order and then, following the making of such an order, pending her deportation pursuant to it.
+Os detention, which was at the Immigration Removal Centre (IRC) at Yarls Wood in Bedfordshire, continued until 6 July 2011 when, pursuant to a grant of bail on 1 July 2011, she was released.
+It follows that O was detained at Yarls Wood for almost three years.
+The court knows nothing about her circumstances after 6 July 2011 but infers that she has not, or not yet, been deported.
+In her first claim for judicial review, O, acting (as now) by the Official Solicitor, her litigation friend, challenged the lawfulness of the earlier period of her detention, namely from 8 August 2008 to 22 July 2010.
+In the Administrative Court her claim failed entirely but on appeal it succeeded to a limited extent.
+By its decision, entitled R (OM) v Secretary of State for the Home Department [2011] EWCA Civ 909 and dated 28 July 2011, the Court of Appeal held that for most of that earlier period, namely until 28 April 2010, O had been the subject of unlawful detention but was entitled only to nominal damages in respect of it and that for the remainder of that earlier period she had not been the subject of unlawful detention at all.
+In the present proceedings, which chronologically encompass her fourth claim for judicial review, O challenges the lawfulness of the later period of her detention, namely from 22 July 2010, and in particular from say 4 March 2011, until 6 July 2011.
+The object of the present proceedings has never been to secure her release, which had already occurred at the time of their issue.
+The object has been to secure a declaration that the detention was unlawful and, perhaps in particular, an award of substantial damages for false imprisonment.
+But on 3 April 2012 Lang J refused to grant permission for this claim to proceed and on 17 July 2014 the Court of Appeal (by a panel which comprised Arden LJ, who gave the substantive judgment, and Underhill and Floyd LJJ, who agreed with it) dismissed her appeal: [2014] EWCA Civ 990, [2015] 1 WLR 641.
+O now asks this court to grant permission for the claim to proceed and therefore to remit it to the Administrative Court, so that, following the filing by the Home Secretary of detailed grounds for contesting it and of any written evidence on which she wished to rely, it might proceed to substantive determination.
+O has the misfortune to have suffered for many years from serious mental ill health.
+So the appeal requires this court to consider the Home Secretarys policy relating to the detention of the mentally ill pending deportation; and perhaps also to identify the criterion by which the court should determine a complaint that she has failed to implement some aspect of her policy relating to it.
+Furthermore the Home Secretary is obliged to conduct monthly reviews of whether a persons detention pending deportation should continue.
+There were, as the Court of Appeal held, defects in the Home Secretarys conduct of the monthly reviews of Os detention between March and July 2011.
+The appeal requires this court to identify the effect of the deficiencies on the lawfulness of her detention during those four months, particularly in the light of the Court of Appeals decision in R (Francis) v Secretary of State for the Home Department (Bail for Immigration Detainees intervening) [2014] EWCA Civ 718, [2015] 1 WLR 567.
+Supported by Bail for Immigration Detainees which, jointly with Medical Justice, also intervenes in the present appeal, O contends that the Francis case was wrongly decided.
+BACKGROUND
+It was within days of their arrival in the UK in November 2003 that O (a) committed the offence of cruelty to her son, contrary to section 1 of the Children and Young Persons Act 1933. (b) In 2004, upon being charged with that offence, O was granted bail but she absconded and did not attend court on the date in February 2005 for which the trial had been fixed. (c) Meanwhile, earlier in 2004, Os claim for asylum or for discretionary leave to remain in the UK under the European Convention on Human Rights (the ECHR) was refused and her appeal against the refusal dismissed.
+In July 2005, while she remained unlawfully at large, O gave birth to (d) a daughter, whom, to Os great distress, a court later authorised to be placed for adoption. (e) In September 2007 O was arrested and charged with making a false instrument, namely a false identity document which she had used in an attempt to open a bank account, for which she was later convicted and sentenced to imprisonment for nine months. (f) In due course it was realised that O was the subject of the outstanding charge of child cruelty, to which in due course she pleaded guilty and for which, in July 2008, she became subject to the sentence of 12 months imprisonment and to the recommendation for deportation.
+In that the length of the sentence was such as, subject to exceptions, to oblige the Home Secretary to order O to be deported under section 32(5) of the UK Borders Act 2007 (the 2007 Act), no such recommendation would nowadays be given: R v Kluxen [2010] EWCA Crim 1081, [2011] 1 WLR 218. (g) On 5 August 2008, three days prior to Os release from prison and the beginning of her detention at Yarls Wood, the Home Secretary served notice of her intention to make a deportation order in respect of O. (h) On 25 November 2010, following conclusion of the family proceedings relating to Os daughter, the Home Secretary made the deportation order in respect of O. (i) On 7 December 2010 O applied to the Home Secretary to revoke the deportation order on human rights grounds but on 13 January 2011, confirmed on 8 April 2011, the Home Secretary rejected the claim and certified it as clearly unfounded. (j) On 18 January 2011 the Home Secretary made directions for Os removal to Nigeria on a flight booked for 7 February 2011. (k) On 24 January 2011 O issued her second claim for judicial review, which was by way of challenge to the Home Secretarys certificate. (l) On 4 February 2011 the court enjoined the Home Secretary from effecting Os removal to Nigeria on 7 February. (m) On 7 March 2011 a tribunal judge refused to grant bail to O, whereupon she issued her third claim for judicial review by way of challenge to the refusal. (n) On 20 May 2011 a court refused to permit O to proceed with her third claim but permitted her to proceed with her second claim, which ultimately, in November 2012, was upheld, with the result that the Home Secretarys certificate was quashed. (o) Meanwhile, on 17 June 2011, a tribunal judge again refused to grant O bail but on 1 July 2011 she granted it, whereupon, on 6 July 2011, she was released from detention. (p) On 5 October 2011 O issued her fourth claim for judicial review, in which she brings the present appeal.
+Os MENTAL ILL HEALTH
+During the period of her imprisonment and of her detention at Yarls Wood O displayed signs of serious mental ill health, including by a number of attempts at suicide and other acts of self harm; by suffering hallucinations; and by unpredictable mood swings and impulsive outbursts.
+There she was mainly treated with high doses of anti psychotic and anti depressant medication.
+In May 2008, for the purposes of the court in sentencing her for the offence of child cruelty, Dr Olajubu, a specialist registrar in forensic psychiatry, diagnosed O as suffering a recurrent depressive disorder and an emotionally unstable personality disorder.
+He considered that in prison she would have access to all appropriate psychological interventions.
+On 30 April 2009 Professor Katona, a consultant psychiatrist, made the first of a series of reports on O at her request.
+At that time he agreed with the diagnosis of Dr Olajubu but on 21 September 2009 he reported a considerable deterioration in Os condition and recommended that the Home Secretary should direct her transfer from Yarls Wood to hospital under section 48 of the Mental Health Act 1983.
+On 12 March 2010, following an attempt to suffocate herself, O was admitted to the psychiatric wing of Bedford Hospital for assessment.
+On 15 March 2010 Dr Ratnayake, a consultant psychiatrist there, led the assessment and, by letter of discharge to Yarls Wood of that date, he expressed agreement with Dr Olajubus diagnosis of O as having an emotionally unstable personality disorder, which Dr Ratnayake said was of a borderline type.
+He added that his team found no true psychosis in her and that her needs, in particular for constant observation and continued medication, would be adequately met at Yarls Wood, to where accordingly she was returned.
+On 16 July 2010 Professor Katona reported that, although Os acts of self harm had become somewhat less frequent and her depression less profound, he maintained his recommendation for her transfer to hospital.
+On 10 February 2011 Dr Agnew Davies, a clinical psychologist with special expertise on the impact of trauma on the mental health of women, reported on O. Her report forms the foundation of this appeal.
+It runs to 69 pages.
+Instructions to her to make the report came from Os solicitors, who asked her to comment in particular upon whether Os detention was detrimental to her mental health and upon the effect on it of her forcible return to Nigeria.
+Dr Agnew Davies reported: (a) that O gave a plausible history of having suffered frequent physical and sexual abuse at the hands of an uncle when she was aged between 11 and 14 and in his care in Nigeria; (b) that staff at Yarls Wood had told her that since the summer 2010 Os behaviour had been more stable and that she had undertaken a short course of cognitive behavioural therapy; (c) that her study of Os records, her lengthy interview with O and the results of application to her of mainstream psychological tests led her to diagnose in O not only a major depressive disorder but, in particular, a severe, complex and chronic form of post traumatic stress disorder (PTSD) arising out of her uncles protracted abuse of her; (d) necessary mental health services at Yarls Wood; (e) (f) services; (g) (h) that she was not fit to live independently without professional support; that recovery of her mental health could occur only over the long term; that release from detention would greatly benefit her mental health; that she needed a long term structured package of mental health that, unlike Dr Ratnayake, she considered that O could not access the that neither medication nor general counselling services would alone (i) be enough to secure her recovery; (j) that she needed to be referred to a specialist trauma focussed psychiatric clinic, such as those in London provided by St Bartholomews Hospital, by the Maudsley Hospital and by three others, for treatment which would take place in phases over years; (k) that such a referral was in accordance with guidance issued by the National Institute for Health and Care Excellence (NICE) to the effect that neither general counselling services nor treatment with medication could alone provide sufficient interventions in a severe, complex case of this sort; and (l) that her deportation to Nigeria would have grave effects upon her mental health and be likely to precipitate unsuccessful attempts at suicide followed perhaps by a successful one.
+On 30 June 2011, for the purposes of the application for bail which proved successful on the following day, Dr Agnew Davies wrote an addendum report.
+She noted the apparent absence of any acts of self harm on Os part during the previous six months and, from her psychological perspective, she urged Os immediate release.
+She recommended that O should receive medical support in the community from a home treatment team and later from a community mental health team and, as before, that in the long term O should engage in treatment at a specialist clinic.
+Also on 30 June 2011 Professor Katona wrote a further report in which, without having again interviewed O, he reviewed the reports of Dr Agnew Davies and the up to date medical records from Yarls Wood.
+In the light of the marked improvement in Os self harming behaviour, he withdrew his recommendation for her transfer to hospital.
+He now agreed with Dr Agnew Davies that O was suffering PTSD in addition to her depressive disorder.
+He also agreed with her recommendation for O to access medical care in the community and in the long term for her to undertake treatment at a specialist clinic, which, he added, would probably continue for two or three years.
+AUTHORITY TO DETAIN
+Paragraph 2 of Schedule 3 to the Immigration Act 1971 (the 1971 Act), entitled Detention or control pending deportation, provides: (1) Where a recommendation for deportation made by a court is in force in respect of any person, and that person is not detained in pursuance of the sentence or order of any court, he shall be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case or he is released on bail. (1A) (2) Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 of a decision to make a deportation order against him he may be detained under the authority of the Secretary of State pending the making of the deportation order. (3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise).
+I have set four words above in italics in order that the reader may more easily understand my discussion in paras 42 to 49 below of the Francis case cited at para 4 above.
+In that she had been the subject of a recommendation for deportation, it follows that from 8 August 2008 to 25 November 2010 O was detained under para 2(1) of Schedule 3 to the 1971 Act and that, from 25 November 2010, when the deportation order was made in respect of her, until 6 July 2011 she was detained under the words in parenthesis in para 2(3) of the schedule.
+In that the Home Secretary made the deportation order in accordance with section 32(5) of the 2007 Act, it is worthwhile to note section 36(2) of that Act, which provides: Where a deportation order is made in accordance with section 32(5) the Secretary of State shall exercise the power of detention under paragraph 2(3) of Schedule 3 to the [1971 Act] unless in the circumstances the Secretary of State thinks it inappropriate.
+I have set the word power in italics for the same reason.
+POLICY
+[I]mmigration detention powers need to be transparently identified through formulated policy statements, observed Lord Dyson in R (Lumba) v Secretary of State for the Home Department (JUSTICE and another intervening) [2011] UKSC 12, [2012] 1 AC 245 at para 34.
+The Home Secretarys published policy in this regard is set out in Chapter 55, entitled Detention and Temporary Release, of a manual addressed to caseworkers and entitled Enforcement Instructions and Guidance (the manual).
+It states: (a) at para 55.1.1 that the power to detain had to be retained in the interests of maintaining effective immigration control but that there was a presumption in favour of release; (b) at para 55.1.2 that the presumption applied even to foreign national offenders (such as O) but that, in relation to detention pending their intended deportation, the risks of their re offending and absconding might well outweigh it; and (c) at para 55.8 that, following the start of any detention, reviews of it were necessary in order to ensure that it remained lawful and in line with policy; that in a criminal case (such as that of O) they should take place at least every 28 days; and that the law required detainees to be provided every 28 days with written reasons for their continued detention, based on the outcome of the reviews.
+Paragraph 55.10 of the manual is entitled Persons considered unsuitable for detention.
+It states: Certain persons are normally considered suitable for detention in only very exceptional circumstances In criminal cases, the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention.
+There may be cases where the risk of harm to the public is such that it outweighs factors that would otherwise normally indicate that a person was unsuitable for detention.
+The following are normally considered suitable for detention in only very exceptional circumstances : Those suffering from serious mental illness which cannot be satisfactorily managed within detention The words at the bullet point quoted above were introduced into the paragraph on 25 August 2010.
+Prior to that date the category was described as those suffering from serious medical conditions or the mentally ill.
+It is clear that, in considering whether there are very exceptional circumstances which make a person suitable for detention even though her (or his) serious mental illness cannot satisfactorily be managed there, the caseworker has to weigh the severity of any risks of offending or further offending and of absconding.
+On 14 January 2016 Mr Stephen Shaw CBE made a report to the Home Secretary entitled Review into the Welfare in Detention of Vulnerable Persons, Cm 9186.
+His eleventh recommendation was that the phrase satisfactorily managed should be removed from para 55.10 of the manual.
+Mr Shaw noted suggestions that the meaning of the phrase was inexact and obscure and he stated that, irrespective of whether it was satisfactorily managed, serious mental illness among detainees was clearly not being treated in accordance with good psychiatric practice.
+REVIEWS OF Os DETENTION
+A central inquiry mandated by this appeal is into the treatment of the report of Dr Agnew Davies in the Home Secretarys reviews of Os detention.
+The report was submitted to the Home Secretary under cover of a letter from Os solicitors dated 16 February 2011.
+It is of some relevance that it was expressly submitted in support of Os application, then recently issued, for judicial review of the Home Secretarys certificate that the application to revoke the deportation order had been clearly unfounded.
+In the letter Os solicitors quoted at some length from the report and stressed passages relevant to the claim for judicial review, including doubts about Os ability to conduct an out of country appeal and the risk of her suicide in the event of deportation.
+Although in the letter they did refer to the diagnosis of PTSD, the solicitors did not refer to the recommendation of treatment at a specialist clinic in London; did not allege that Os illness could not be satisfactorily managed at Yarls Wood; and, generally, did not question the legality of Os continued detention in the short term.
+By letter dated 8 April 2011 the Home Secretary, by her caseworker, replied to the letter dated 16 February 2011.
+Again the context of the letter was Os claim for judicial review rather than the legality of her continued detention in the short term; and the gist of it was that the Home Secretary found nothing in the report of Dr Agnew Davies to lead her to abandon her defence of the claim.
+Presumably in an attempt to show that she had carefully read it, the writer quoted at length from the report, including that the doctor had diagnosed PTSD.
+Oddly, however, she then twice asserted that the report contained no new diagnosis.
+She said that, in response to Dr Agnew Davies report, the medical officers at Yarls Wood had explained that Os condition had become more stable; that her last attempt at self harm had occurred more than a year previously; and that she was compliant with her medication.
+In the six reviews of Os detention which were written between 4 March 2011 and 4 July 2011, each prepared by the caseworker who wrote the letter dated 8 April 2011 and each duly countersigned by senior officers, only the briefest reference was made to the report of Dr Agnew Davies.
+Inserted into the lengthy recital in each review of Os protracted immigration history was reference to yet another psychiatric report, which had been treated as a further request to revoke the deportation order.
+Again oddly, the reviews identified Os most recent diagnosis as being that of Dr Ratnayake on 15 March 2010.
+In each case the senior officers in effect indorsed the caseworkers conclusion that the risk of Os reoffending and absconding outweighed the presumption in favour of release.
+One has some sympathy for the caseworker because the report of Dr Agnew Davies had been submitted to the Home Secretary as relevant to an issue different from that of the legality of Os continued detention in the short term.
+Nevertheless on any view the report bore some relevance to the Home Secretarys policy relating to the detention of the mentally ill and should have been properly addressed in the reviews.
+The reviews (a) failed to refer to Dr Agnew Davies diagnosis of O as suffering PTSD; (b) indeed wrongly stated that the most recent diagnosis of Os mental condition was that of Dr Ratnayake; (c) failed to refer to Dr Agnew Davies assessment of Os need for treatment at a specialist trauma focussed psychiatric clinic; and (d) failed therefore to consider whether O could be satisfactorily managed at Yarls Wood and, even if not, whether there were very exceptional circumstances which nevertheless justified her continued detention.
+In the above circumstances the Court of Appeal concluded that the Home Secretary had unlawfully failed to apply the policy set out in para 55.10 of the manual when deciding to continue to detain O between March and July 2011.
+This conclusion the Home Secretary now accepts.
+She does not suggest that the evidence which she would be entitled to file in the event that the claim was permitted to proceed would be likely to throw a different light on it.
+The defects in the reviews already filed speak for themselves.
+Appendix 4 to Mr Shaws recent report, referred to in para 20 above, is an assessment by Mr Jeremy Johnson QC of six High Court cases in which since 2010 the Home Secretarys treatment of immigration detainees has been held to be inhuman or degrading and therefore in violation of their rights under article 3 of the ECHR.
+He also assessed at least six other cases in which, without identifying a violation of article 3, the High Court or the Court of Appeal held the detention to have been unlawful.
+For the purposes of these assessments Mr Johnson made a detailed study of the Home Secretarys detention reviews and concluded: There are two themes that run through the cases.
+The first is that the person reviewing detention does not always appear to have been aware of all of the relevant evidence (particularly medical evidence) that is relevant to the assessment of whether it is appropriate to detain (so sequential reviews are written in almost identical terms without any reference being made to important developments in the medical picture).
+The second is that decisions to detain are made without properly engaging with the test that has to be satisfied before a decision is made.
+The reviews of Os detention between March and July 2011 are perfect illustrations of both of Mr Johnsons themes.
+The next question is: were she to have applied her policy correctly, how would the Home Secretary have reacted to the report of Dr Agnew Davies? The first part of the answer is to consider the meaning of the phrase satisfactory management.
+There is lively dispute between the parties as to the nature of the courts review of the legality of the Home Secretarys application of policy (which presupposes that she has purported to apply it: see para 37 below).
+But in this appeal there is no dispute that the courts approach to the meaning of the policy is to determine it for itself and not to ask whether the meaning which the Home Secretary has attributed to it is reasonable: R (Raissi) v Secretary of State for the Home Department [2008] EWCA Civ 72, [2008] QB 836, paras 107 to 123.
+SATISFACTORY MANAGEMENT
+NHS England is responsible for commissioning the provision of all health services in IRCs as well as in prisons in England pursuant to regulations made under section 3B(1)(c) of the National Health Service Act 2006.
+What level of health services should NHS England arrange to be provided there? The answer is to be found in the following two principles identified in the Partnership Agreement, first published in 2013 and republished in April 2015, between Home Office Immigration Enforcement, NHS England and Public Health England, at p 12: Detainees should receive health care equivalent to that available to the general population in the community with access to services based on clinical need and in line with the Detention Centre Rules; and Health and wellbeing services in IRCs should seek to improve health and wellbeing (including parity of esteem between services which address mental and physical health) In relation to the detention of those suffering from mental health problems, the Home Secretarys Policy Equality Statement dated 26 November 2014 recorded her agreement with NHS England that the provision of healthcare at a standard equal to that provided in the community was a core principle.
+She noted, however, that respondents to her consultation had suggested that in IRCs there was an insufficiency of specialist mental health interventions, with the result that adherence to the principle was not achieved.
+Although both the Partnership Agreement and the Equality Statement post date 2011, the Home Secretary does not suggest that they are irrelevant to the interpretation of the policy then applicable to O.
+In formulating policy that, save very exceptionally, management of serious mental illness in an IRC, if not satisfactory, should precipitate release, the Home Secretary has adopted a word of extreme and appropriate elasticity.
+It catches a host of different factors to which the circumstances of the individual case may require her to have regard.
+In R (Das) v Secretary of State for the Home Department (Mind and another intervening) [2014] EWCA Civ 45, [2014] 1 WLR 3538, in a judgment with which Moses and Underhill LJJ agreed, Beatson LJ, at paras 45 to 47 and 65 to 70, offered a valuable discussion of the phrase satisfactory management.
+I respectfully disagree with him only in relation to an aside in para 71 of his judgment.
+Beatson LJ there expressed an inclination to accept the Home Secretarys contention that, if the management of the illness in an IRC was likely to prevent its deterioration, it would be satisfactory even if treatment was available in the community which was likely to secure its improvement.
+I would not exclude the relevance of treatment, available to the detainee only if released, which would be likely to effect a positive improvement in her (or his) condition.
+If it was likely that such treatment would actually be made available to the detainee (rather than be no more than on offer in principle to all members of the community in NHS publications), its availability should go into the melting pot; and the burden would be upon the Home Secretary to inquire into its availability.
+If, contrary to the Partnership Agreement quoted in para 29 above, the standard of care (expressly aimed at improving health as well, of course, as preventing it from deteriorating) provided to a detainee in an IRC were for some reason not equal to that which would be made available to her if released, it would in my view be questionable, subject to the strength of other relevant factors, whether the management of her illness in the IRC was satisfactory.
+While satisfactory management does not mean optimal management, a narrow construction of the word management as meaning no more than control of the illness would lack principled foundation, particularly when in very exceptional circumstances the detainee may continue to be detained in the IRC pursuant to the policy notwithstanding the unsatisfactory management of her illness there.
+Above all the policy in para 55.10 of the manual mandates a practical inquiry.
+As Beatson LJ stressed in the Das case, the phrase satisfactory management should be interpreted with regard to its context and purpose (para 45); should not be subjected to the fine analysis appropriate to a statute (para 47); nor invested with a spurious degree of precision (para 65).
+An important part of its context is that the management of the illness takes place in detention pending likely deportation.
+Treatment of a patient who finds herself in the doubly stressful circumstances both of detention and of likely deportation has its own considerable, extra challenges; treatment in those circumstances might be satisfactory even if it would not otherwise be satisfactory.
+The reliance by Dr Agnew Davies on highly generalised words of guidance issued by NICE, set out in para 11(k) above, leads O to refer the court to the paragraph in The NHS Constitution for England, updated to 14 October 2015, which tells the patient: You have the right to drugs and treatments that have been recommended by NICE for use in the NHS, if your doctor says they are clinically appropriate for you.
+But Os argument is underdeveloped and carries her appeal no further.
+Precisely what treatment has been recommended for use in the NHS and for use in what circumstances? As I explore more fully below, would the doctor responsible for O have agreed that treatment at the trauma clinic was clinically appropriate for her and, if so, would it have been among the treatments which the doctors local clinical commissioning group had decided to commission? And to what extent is the right referred to in the NHS Constitution circumscribed by the limited availability of recommended treatments?
+Had she sought to ask herself whether, in the light of the report of Dr Agnew Davies, Os illness would satisfactorily be managed at Yarls Wood, the Home Secretary would have sought to obtain answers to questions along the following broad lines: (a) Was Dr Agnew Davies likely to be correct in diagnosing PTSD in O? No one had previously diagnosed it.
+In particular it had been diagnosed neither by Dr Ratnayake nor (until 30 June 2011) by Professor Katona. (b) In particular did the clinicians treating O at Yarls Wood agree with the diagnosis and, if not, what diagnosis did they favour? Their intimate and protracted exposure to O might, subject to the quality of their response, invest their views with considerable authority. (c) What was the nature of the treatment currently provided to O at Yarls Wood? (d) How satisfactory did the clinicians regard the current treatment and would they confirm the improved stability of Os behaviour reported by Dr Agnew Davies? (e) Was it necessary to instruct an independent psychologist to comment on the diagnosis of Dr Agnew Davies? (f) What was the likely length of time before the Home Secretary could achieve Os deportation? In February 2011 she had come close to achieving it but Os second claim for judicial review in relation to revocation of the deportation order was pending. (g) Insofar as Dr Agnew Davies was recommending that O needed at once to embark on lengthy treatment at a specialist trauma focussed clinic, would the doctor responsible for O approve it and was the recommendation in any way practical? Was there evidence that any such clinic could and would accept O, as a foreign citizen awaiting deportation, even for immediate assessment let alone for early treatment? (h) If O were released into the community, what accommodation should be provided for her and would its location be compatible with her need to undergo the treatments appropriate for her? (i) What medical services (in particular, what mental health services) and what local authority community care services would be available to O in her locality immediately following any release?
+Realistically O accepts that the proper application of the Home Secretarys policy to her case in the light of the report of Dr Agnew Davies would not have led to her immediate release in March 2011.
+She correctly contends that the report should have led the Home Secretary to make inquiries.
+We cannot predict the result of the inquiries, most of which, judged by the contents of the reviews, seem never to have been made.
+Indeed, even if, which is doubtful and which indeed the Court of Appeal expressly rejected, the appropriate conclusion would or might have been that Os illness could not be satisfactorily managed in detention, the Home Secretary, in considering whether there were very exceptional circumstances which nevertheless justified her continued detention, would have had to consider the risks of her absconsion and (possibly also) re offending.
+On 1 July 2011 the tribunal judge rated them as acceptably low.
+But, in his judgment given later that month on Os appeal in her first claim for judicial review, and therefore by reference to the circumstances which existed only up to 22 July 2010, Richards LJ at para 36 assessed the risk of her absconsion as very high.
+At least, however, the limited period between March and her release on bail on 6 July 2011 makes one thing clear: even on the dubious assumption that proper application of her policy should in due course have led the Home Secretary to direct Os release, it is unrealistic to consider that the conditions necessary for her release would have been in place prior to 6 July 2011.
+For the above reasons, in agreement with the Court of Appeal, I regard it as already clear that, although the Home Secretary unlawfully failed to apply her policy under para 55.10 of the manual to Os continued detention between March and July 2011, a lawful application of her policy would not have secured Os release from detention any earlier than the date of her actual release on bail.
+I have referred at para 28 above to the dispute as to the nature of the courts review of the legality of the Home Secretarys application of policy.
+It is now settled at the level of the Court of Appeal at first sight unsurprisingly that the nature of the review is the traditional public law inquiry into whether the application of it was rational: R (ZS) (Afghanistan) v Secretary of State for the Home Department [2015] EWCA Civ 1137.
+In para 30 above I have explained the open texture of the concept of satisfactory management, which reflects the wide range of factors relevant to it and explains the broad nature of the Home Secretarys decision making process.
+If indeed the inquiry is into the decisions rationality, a process of that breadth may very well yield more than one rational, and thus more than one lawful, decision.
+But, supported by the interveners, O vigorously commends a more muscular approach.
+She insists that the subject is liberty; that indeed it is liberty denied by executive diktat; and that nothing less than an intense judicial inquiry into whether the application of policy was correct can be warranted in circumstances so controversial and of such fundamental importance.
+I do not descend more fully into the rival contentions noted above because I consider that this appeal does not afford to the court the opportunity to choose between them.
+For the Home Secretary failed to address the satisfactory management or otherwise of Os illness at Yarls Wood in the light of Dr Agnew Davies report and so there is no decision for a court to be able on either basis to appraise.
+Instead the overall refusal to release O betrays a different type of public law error: it was procedurally flawed.
+What however is clear is that, even in the absence of any flaw, no decision to release O would in any event have been made prior to 6 July 2011.
+THE LUMBA PRINCIPLE
+In the Lumba case, cited at para 17 above, two foreign nationals, Mr Lumba and Mr Mighty, were sentenced to terms of imprisonment, apparently without being recommended for deportation by the sentencing judge.
+Once their sentences came to an end, and following notice of her decision to make deportation orders against them, the Home Secretary detained them; and, following the making of those orders, her detention of them continued.
+So initially, unlike O, they were detained pursuant to para 2(2) of Schedule 3 to the 1971 Act, set out in para 14 above; and subsequently, like O, they were detained pursuant to the words in parenthesis in para 2(3) of the schedule, also there set out.
+In proceedings for judicial review they challenged the lawfulness of their detention and claimed damages for false imprisonment.
+At the time of the detention of the two men the Home Secretarys published policy was that, even in relation to foreign national prisoners such as them, there was a presumption that they should be at liberty pending their intended deportation.
+In fact, however, the Home Secretary detained them pursuant to an unpublished policy which, inconsistently with her published policy, amounted almost to a blanket resolution on her part to detain foreign national prisoners pending intended deportation.
+It had been patently unlawful for the Home Secretary to apply to them an unpublished policy which was inconsistent with the published one.
+It was also clear, however, that, had the Home Secretary applied her published policy to them, her decision would, similarly, have been to detain them.
+This had led the Court of Appeal to hold that her unlawful application of policy had not made their detention unlawful.
+By a majority, this court disagreed.
+Giving the leading judgment, Lord Dyson said: 71.
+I can see that at first sight it might seem counter intuitive to hold that the tort of false imprisonment is committed by the unlawful exercise of the power to detain in circumstances where it is certain that the claimant could and would have been detained if the power had been exercised lawfully.
+But the ingredients of the tort are clear.
+There must be a detention and the absence of lawful authority to justify it.
+Where the detainer is a public authority, it must have the power to detain and the power must be lawfully exercised.
+Where the power has not been lawfully exercised, it is nothing to the point that it could have been lawfully exercised.
+If the power could and would have been lawfully exercised, that is a powerful reason for concluding that the detainee has suffered no loss and is entitled to no more than nominal damages.
+But that is not a reason for holding that the tort has not been committed.
+I provisionally conclude that, were Os claim for judicial review permitted to Although an unrelated aspect of one claim was remitted for further consideration, the claims relating to the Home Secretarys policy thus resulted in awards to each of the two men of damages in the sum of 1.
+proceed, it should therefore lead to the same result.
+The Home Secretary, however, contends that the Lumba case is distinguishable from the present case; and that, where the detainee is initially detained, as here, under para 2(1) of Schedule 3 to the 1971 Act, rather than under para 2(2) of the schedule, an unlawful application of policy does not make the detention itself unlawful; and that therefore it does not generate a right even to nominal damages for false imprisonment.
+In this respect the Home Secretary relies on the Francis case, cited at para 4 above.
+THE FRANCIS CASE
+Although the initial detention of the two men in the Lumba case had been effected pursuant to paragraph 2(2) of Schedule 3 to the 1971 Act, the Court of Appeal in that case, [2010] EWCA Civ 111, [2010] 1 WLR 2168, in the course of explaining its decision (later reversed), had in passing addressed the effect of para 2(1) of the schedule.
+It had clearly had in mind the difference between the words shall in para 2(1) and may in para 2(2), both of which I have set in italics in my quotation of the sub paragraphs in para 14 above; and at paras 88 to 89 it had proceeded to observe that, unlike detention under para 2(2), a persons detention under para 2(1) was authorised by that sub paragraph itself and that, even were the Home Secretary to have made an unlawful decision not to direct that persons release, the lawfulness of the detention would therefore remain unaffected.
+In para 55 of his judgment in this court in the Lumba case Lord Dyson had specifically put those observations to one side.
+In the Francis case the Court of Appeal, by a majority (Moore Bick and Christopher Clarke LJJ), reached its decision by reference to the observations which that court had made in passing in the Lumba case.
+Mr Francis, who for the purposes of the proceedings was assumed to have Jamaican rather than British nationality, had been sentenced to a term of imprisonment and recommended for deportation.
+On 4 December 2007 his sentence came to an end and he was detained pending the making of a deportation order.
+Following the making of that order on 21 May 2008, he continued to be detained until 29 September 2011.
+So, like that of O, his initial detention was effected pursuant to para 2(1) of Schedule 3 (being a shall provision) and his subsequent detention was effected pursuant to the words in parenthesis in para 2(3) (also being a shall provision).
+The Court of Appeal divided the detention of Mr Francis into three periods: (a) The first period was from 4 December 2007 to 9 September 2008.
+In respect of this period the court adopted the conclusion of the trial judge that the Home Secretary had, as in the Lumba case, unlawfully applied to Mr Francis an unpublished policy in favour of detention which was inconsistent with her published policy. (b) The second period was from 9 September 2008 to 1 June 2010.
+In respect of this period the court adopted the conclusion of the trial judge that the Home Secretary had unlawfully failed to apply her policy by failing to cause the reviews of the continued detention of Mr Francis to be conducted by persons with authority to direct his release. (c) The third period was from 1 June 2010 to 29 September 2011.
+The court adopted the finding of the trial judge that during this period there was no longer any prospect that the deportation of Mr Francis would take place within a reasonable time.
+Although the focus required by the present case is upon the courts treatment in the Francis case of the first and second periods, its treatment of the third period remains important.
+This requires reference to principles which are no longer in play in the present case, namely the Hardial Singh principles, named after the decision of Woolf J in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704.
+In due course Lord Dyson distilled the decision of Woolf J into four principles of public law and he repeated them in para 22 of his judgment in the Lumba case.
+The second Hardial Singh principle is that the Home Secretary should detain a person pending intended deportation only for a reasonable period and the third is that if, before the expiry of the reasonable period, it becomes apparent that the Home Secretary will not be able to effect deportation within a reasonable period, she should direct release.
+In the Francis case the Court of Appeal concluded, in the light of the judges finding, that in respect of the third period the Home Secretary had been in breach of the third Hardial Singh principle.
+What, however, is of importance is that it then proceeded to hold that the detention of Mr Francis during the third period had been rendered unlawful by the Home Secretarys breach of the third principle and that accordingly he was entitled to damages for false imprisonment during that period.
+By contrast, however, the Court of Appeal proceeded to hold that neither of the different deficiencies in the Home Secretarys application of policy during the first and second periods rendered the detention of Mr Francis during those periods unlawful.
+The court felt obliged to give a different value to the word shall in para 2(1) of Schedule 3 from that to be given to the word may in para 2(2) of it.
+Moore Bick LJ said: 21.
+In the present case there was no discretionary decision to detain the claimant which was capable of being vitiated by the application of an unlawful policy . 22.
+The fact remains that the decision to detain has been made by Parliament and the statute provides the authority for detention, unless and until the [Home Secretary] exercises the power to release him.
+It is that which distinguishes detention under sub paragraph (1) from detention under sub paragraph (2).
+And see the judgment of Christopher Clarke LJ at paras 53 and 54.
+Notwithstanding the proper predisposition of any court to discern a difference of effect in any difference of language between statutory provisions, I have, with great respect to Moore Bick and Christopher Clarke LJJ, come to the conclusion that their decision in relation to the first and second periods was wrong.
+It was wrong for the following reasons, taken cumulatively: (a) Any claim by the Home Secretary to be entitled to detain a person pending deportation must be clearly justified by the statutory language: Khawaja v Secretary of State for the Home Department [1984] AC 74, 122 (Lord Bridge of Harwich). (b) The Home Secretarys duty to review the continuation of detention applies as much to those detained under para 2(1) as to those detained under para 2(2).
+Why would Parliament intend that the same unlawful deficiencies in her conduct of those reviews should have such different legal consequences? (c) Why should the effect of a recommendation for deportation, with the result that detention falls into para 2(1) rather than para 2(2), be that it remains lawful notwithstanding the Home Secretarys unlawful application of policy? A Crown Court judges recommendation, perhaps made several years previously, has no other legal consequence, let alone one of such significance, and it is not even a recommendation for detention pending deportation. (d) Both men in the Lumba case were detained initially under para 2(2) (being a may provision) and subsequently under the words in parenthesis in para 2(3) (being a shall provision).
+This court decided that they had been unlawfully detained throughout both periods as a result of the Home Secretarys unlawful application of policy; and it clearly considered that their later detention under the shall provision was no impediment to its decision.
+It was no doubt respect for this courts decision which led Moore Bick LJ in the Francis case to suggest at para 17 that [t]he natural meaning of the words in paragraph 2(3) (and the meaning which best gives effect to the purpose of paragraph 2 as a whole) is that if the person in question has been detained, whether under sub paragraph (1) or (2), his detention is to continue on the same basis.
+His suggestion therefore was that, where detention began under the authority of para 2(2), with the result that it would be rendered unlawful by any misapplication of policy, the same result would continue even after a deportation order was made and after authority for the detention instead became conferred by the words in parenthesis in para 2(3).
+But, if in that situation no different effect is to be attributed to the word shall when found in the parenthesis in para 2(3), it is hard to attribute a different effect to it when found in para 2(1). (e) Section 36(2) of the 2007 Act, set out in para 16 above, refers to the Home Secretarys exercise of the power of detention under para 2(3).
+But, according to the decision in the Francis case, Parliaments reference to a power under para 2(3) was incorrect in circumstances in which detention under para 2(3) has been preceded by detention under para 2(1). (f) The courts treatment in the Francis case of the Home Secretarys breach of the third Hardial Singh principle seems to me to have been at odds with its treatment of her unlawful application of policy.
+The former was held to have rendered detention during the third period unlawful.
+The latter was held not to have rendered detention during the first and second periods unlawful.
+But why the difference? Moore Bick LJ suggested at para 47 that the Hardial Singh principles can be understood as implied limitations on the scope of an otherwise unqualified direction.
+But why should the requirement in public law for the Home Secretary properly to apply her policy have any lesser effect than the requirement in public law for her to comply with the Hardial Singh principles? (g) In my view, therefore, the preferable analysis is along the lines sketched by Sir Stephen Sedley in his concurring judgment in the Francis case at paras 56 and 57, namely that the mandate to detain conferred by para 2(1) and by the words in parenthesis in para 2(3) is subject to two conditions.
+At the risk of oversimplifying the Hardial Singh principles, I would summarise the first condition as being that there is a prospect of deportation within a reasonable time.
+I would summarise the second as being that the Home Secretary will consider in accordance with her policy whether to exercise the power expressly given to her to direct release.
+Were either condition not to be satisfied, the mandate would cease and the detention would become unlawful. (h) The second condition was not satisfied in respect of the first and second periods of Mr Francis detention, with the result that, as in respect of the third period, the mandate to detain him ceased and therefore his detention during those periods should also have been held to have been unlawful.
+Accordingly there is no difference in effect between, on the one hand, the conditional mandate to detain conferred on the Home Secretary by para 2(1) and by the words in parenthesis in para 2(3) and, on the other, the power to detain conferred on her by para 2(2) and by the words not in parenthesis in para 2(3).
+DISPOSAL
+The conclusion postulated in para 40 above need no longer be provisional: were Os claim for judicial review permitted to proceed, the result in all likelihood would be a declaration that her detention from 4 March 2011 to 6 July 2011 was unlawful and an award to her of damages in the sum of 1.
+The Court of Appeal decided that, since such was at most, so it added the likely result of the claim, it was appropriate to uphold the refusal of Lang J to grant permission for it to proceed.
+I agree.
+By the time of its issue O had been released and it could bring her no practical benefit.
+To the extent that her contentions in these proceedings have deserved to be vindicated, she has secured their vindication in this judgment.
+I would dismiss the appeal.
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+A man is convicted of an offence.
+Satisfied that he is suffering from mental disorder, the court makes an order for his detention in hospital.
+Satisfied that it is necessary for the protection of the public, the court also makes a restriction order, which removes from the hospital the power to discharge him.
+In due course a tribunal directs his discharge from hospital on conditions.
+Afterwards, however, the Secretary of State for Justice (the Minister) exercises his power to recall the man to hospital, where he is subject to renewed detention.
+This appeal is about the explanation for the recall which the law requires the Minister to provide to the man both at the time of his recall and soon afterwards.
+In this case the explanation provided on behalf of the Minister, the respondent, to Mr Lee Hirons, the appellant, at the time of his recall was simply that his mental health had deteriorated.
+This generates three questions: (1) Was such an explanation legally sufficient? (2) If not, did it make the appellants renewed detention unlawful? (3) If his detention was unlawful, should the court formally so declare and, in particular, should it award him damages for it and, if so, how much? Fifteen days after the appellants recall, a fuller oral explanation for it was provided to him.
+The Minister concedes that each of two separate legal principles required it to have been provided to him within three days of the recall and indeed in writing.
+These conceded breaches of the appellants rights generate three further questions: (4) Did the breaches make the appellants detention between the third and the fifteenth days following his recall unlawful? (5) award him damages and, if so, how much? If so, should the court formally so declare and, in particular, should it (6) Even if they did not make his detention unlawful, should the court make the breaches the subject of a formal declaration and, in particular, should it award him damages for them and, if so, how much?
+The appellant appeals against the order of the Court of Appeal dated 1 May 2014, whereby it dismissed his appeal against the dismissal of his application for judicial review of the Ministers explanations to him: [2014] EWCA Civ 553, [2015] QB 385.
+The leading judgment was given by Sir Stanley Burnton; and Jackson LJ (who added some observations of his own) and Patten LJ both agreed with it.
+In effect the answers to the questions given by the Court of Appeal were: (1) Yes. (2) Not applicable. (3) Not applicable. (4) no. (5) Not applicable. (6) Not addressed but the courts order means no.
+B: BACKGROUND
+The appellant is aged 49.
+He has the misfortune to have suffered protracted mental disorder, namely a personality disorder and a chronic paranoid delusional disorder.
+The question whether he has also suffered mental illness, in particular paranoid schizophrenia, has for long been the subject of clinical disagreement.
+He has a long history of admission to psychiatric hospitals.
+The appellant has 61 convictions for a variety of offences.
+In 2006 he was convicted of offences of arson and burglary.
+In the light of the nature or degree of his mental disorder and of all the other circumstances, the court then made a hospital order pursuant to section 37 of the Mental Health Act 1983 (the Act), by which it authorised his admission to and detention in a secure hospital.
+But, in the light of the perceived need to protect the public from serious harm, the court then also made a restriction order pursuant to section 41 of the Act, by which the power From 11 June 2012 to 19 July 2012 the appellant resided at the care home in to discharge the appellant was removed from the hospital and vested in the Minister or the First tier Tribunal (Health, Education and Social Care Chamber).
+By section 79(1) of the Act, the appellant thereby became a restricted patient for the purposes of Part V of it.
+The appellants detention took place in medium secure hospitals first in Dawlish and, from 2009, in Doncaster.
+On 27 April 2012, under section 73(2) of the Act, the First tier Tribunal made a direction, which on 24 August 2011 it had in principle resolved to make but had deferred, that he should be conditionally discharged from the hospital in Doncaster.
+In so directing, the tribunal overruled the concerns of the appellants responsible clinician that the risks of his discharge, even on a conditional basis, were too great.
+Having received evidence from Mr Hart, the appellants proposed social supervisor at a registered care home for ex offenders in Lancaster, the tribunal approved a plan that the appellant should move there on 11 June 2012.
+There were eight conditions, including that he should reside only at places approved by Mr Hart, that he should accept treatment directed by whoever was to become his responsible clinician, that he should not drink alcohol, that he should not approach members of the public in order to promote his (very intense) religious beliefs and that he should not contact an identified woman.
+Lancaster.
+On 19 July 2012 both Mr Hart, who had indeed become the appellants social supervisor at the home, Ms Weldon, who was a psychologist attached to the home, and Dr Omar, who had become his responsible clinician in Lancaster, resolved to invite the Minister to consider whether to exercise his power under sections 42(3) and 73(4)(a) of the Act to recall the appellant to a secure hospital.
+That afternoon Mr Hart telephoned Mr Elliott, who was a senior case worker at the National Offender Management Service within the Ministry of Justice (the Ministry).
+Mr Elliott was responsible for acting on behalf of the Minister in deciding whether to recall conditionally discharged patients to hospital.
+Immediately after their conversation, Mr Hart sent to Mr Elliott, by email, a statement in which he outlined the concerns of himself and of Ms Weldon, who had together seen the appellant that morning, and of Dr Omar.
+In the statement Mr Hart suggested that in the appellant there was a greater component of mental illness (as opposed to other types of mental disorder) than had at first been observed; that his mental health had deteriorated; that he had become fixated upon securing change of the conditions of his discharge; that he had been craving alcohol; that his presentation had become more unpredictable; that he had threatened to assault somebody; that he had been ranting and swearing in the office; that, against Dr Omars advice, he had refused to take all medication; that he was likely to abscond and thereupon to abuse alcohol and to seek to contact the woman identified in one of the conditions; that the only option was to recall him; and that a bed was available for him in a medium secure hospital in Manchester.
+Mr Elliott immediately resolved that the appellant should be recalled to the hospital in Manchester.
+One hour after receiving Mr Harts email, he sent to Mr Hart by email a warrant for the appellants recall.
+It recited no reason for the recall.
+When, however, Mr Hart thereupon informed the appellant that he had been recalled to a hospital in Manchester, he added that the reason for his recall was that his mental health had deteriorated.
+No fuller explanation was provided to the appellant that day; and, as I have indicated, the warrant with which he was then served would not have enlightened him.
+That evening police officers took him from Lancaster to the hospital in Manchester.
+He was unhappy but cooperative.
+Mr Hart at once confirmed to Mr Elliott by email that the warrant had been executed.
+Nothing in the evidence casts doubt on the appellants assertions that, when he arrived there, the hospital in Manchester knew nothing about him; that, during that evening, Dr Kasmi, a consultant forensic psychiatrist who was to become his responsible clinician there, asked him why he had been recalled; and that even two days later the nursing staff remained unable to explain to him the reasons for his recall.
+Within a month of recalling a restricted patient to hospital, the Minister is obliged by section 75(1)(a) of the Act to refer his case to the First tier Tribunal.
+In the appellants case the Minister did so at once, namely on 20 July 2012.
+On 24 July 2012 an officer in the Ministry, not Mr Elliott, sent a profoundly unsatisfactory letter to the hospital in Manchester.
+It was no doubt intended to be addressed to the appellants responsible clinician there, namely Dr Kasmi.
+But it was addressed to Dr Omar even though the writer should have been well aware that he had been the appellants responsible clinician in Lancaster.
+It enclosed a copy of the warrant which, for some reason, the writer understood not yet to have been executed.
+The writer was equally unaware of the fact that the Minister had already referred the appellants case to the tribunal.
+In the letter the writer stated that the appellant should be informed of the reasons for his recall within 72 hours of admission; but 72 hours had passed by the date of the letter.
+Nor did the letter in any way identify the reasons for the recall; it did not even attach the statement which Mr Hart had emailed to Mr Elliott on 19 July.
+One surely needs to hope that the letter represents an isolated example of incompetence and that it does not betoken within the Ministry a cavalier attitude towards recall wholly inappropriate to the discharge of its grave responsibilities.
+On 3 August 2012, namely 15 days following his recall, the appellant was apprised of the reasons for it.
+Dr Kasmi, who had somehow secured a copy of Mr Harts statement, then read it out to the appellant and discussed it with him.
+But he did not give the appellant a copy of it nor provide him with any other written explanation of the reasons for his recall.
+As quickly as 13 August 2012 the appellants long standing and energetic solicitors in Cornwall wrote a pre action letter to the Ministry, by which he challenged the lawfulness of the decision to recall him to hospital.
+On 19 October 2012 his application for judicial review was issued.
+It is clear from the judgment by which Dingemans J dismissed the application (reported together with the judgments in the Court of Appeal at [2015] QB 385) that at that stage the appellants primary case was that there were insufficient grounds for the Ministers decision to recall him.
+But it was only his secondary case that he took to the Court of Appeal, namely that there was an unlawful failure to explain the reasons for the recall to him; that the failure infected the legality of his detention; but that, even if it did not do so, it nevertheless generated a right to a declaration and damages.
+This court is not concerned with the outcome of the proceedings before the First tier Tribunal but understands that the appellant remains presently detained in hospital, albeit no longer the one in Manchester.
+C: THE CONCEDED BREACHES
+In April 1993 the Department of Health issued a circular to local authorities, LAC (93)9, and guidelines to health authorities, HSG (93)20, both of which were entitled Recall of mentally disordered patients subject to Home Office restrictions on discharge.
+The two documents are in much the same terms and remain substantially operative today.
+In annexes they state the governments policy towards the provision to recalled patients of an explanation for their recall.
+The annexes introduce the subject by pointing out that a patient recalled to hospital may be in an excitable and nervous state and that it is difficult to expect whoever is escorting him to hospital to provide a full explanation of the decision to recall him.
+Accordingly, so they continue, a three stage procedure should be applied: (1) at the time of the patients return to hospital, the person returning him should inform him in simple terms that he is being recalled by the Minister and that, to the extent possible, a further explanation will be given later; (2) as soon as possible after re admission to hospital and in any event within 72 hours of it the patients responsible clinician or another specified person at the hospital should explain to him the reasons for his recall and ensure so far as possible that he understands them; and (3) within 72 hours of his re admission the patient should be provided with a written explanation of the reasons for his recall.
+Where a public authority issues a statement of policy in relation to the exercise of one of its functions, a member of the public to whom it ostensibly applies, such as this appellant, has a right at common law to require the authority to apply the policy, so long as it is lawful, to himself unless there are good reasons for the authority not to do so: Mandalia v Secretary of State for the Home Department [2015] UKSC 59, [2015] 1 WLR 4546, paras 29 31.
+But the appellant also had rights under article 5 of the European Convention on Human Rights (the Convention): (1) Para 1(e) provides that the lawful detention of persons of unsound mind is a case in which deprivation of liberty is permissible so long as it is in accordance with a procedure prescribed by law. (2) Para 2 provides: Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. (3) Para 4 provides that everyone deprived of his liberty should be entitled to take proceedings by which a court will speedily decide the lawfulness of his detention. (4) Para 5 provides that every victim of detention in contravention of any of the earlier paragraphs should have an enforceable right to compensation.
+No issue arises in respect of para 4 of article 5 of the Convention.
+The Ministers obligation under section 75(1)(a) is to refer the case of a recalled patient to the tribunal within a month.
+But we can leave open whether, were he to delay the reference for that full month, he would nevertheless be in breach of para 4; for his practice is to make the reference much more quickly, as exemplified by his immediate reference of the appellants case.
+The result was that, within a day of his recall, the tribunal was seised of a jurisdiction to direct his further discharge.
+Equally, within 25 days of his recall, the appellants solicitors had, by their pre action letter, set in train the present proceedings, the focus of which has been the lawfulness of the Ministers decision to recall him.
+So there was no violation of para 4.
+In relation to para 2 of article 5 of the Convention the Minister submits that, in the case of the recall of a restricted patient, implementation of the three stage procedure set out in the issued policy would satisfy the patients Convention rights thereunder.
+He accepts that, although it is convenient for him to delegate to those on the ground the task of explaining to the patient the reasons for the decision to recall, the obligation to do so remains on him as the maker of that decision.
+He contends that the first stage of the procedure, applicable to the time of the recall to hospital, was duly implemented and indeed that, when Mr Hart then explained to the appellant that the reason for his recall was a deterioration in his mental health, the explanation went slightly further than was required at the first stage.
+Inevitably, however, the Minister concedes that the second and third stages of the procedure were not implemented: for an adequate explanation was provided to the appellant not within three days but only within 15 days of the recall and, which seems to be agreed to have been less significant, an explanation in writing was provided to him not within three days but only months later in response to the present proceedings.
+The Minister therefore concedes that: (1) he breached the appellants right at common law to receive within three days an adequate explanation for the recall in accordance with published policy; and (2) he also breached the appellants analogous right under article 5(2) of the Convention to be informed promptly of the reasons for his recall.
+The Minister makes no further concessions.
+So it is almost time to consider the questions identified in para 2 above.
+But first they must be placed in context.
+D: CONTEXT
+The context is that, for seven reasons, the way in which the Minister both reaches and implements a decision to recall a restricted patient to hospital is a function of great importance which he must approach with scrupulous care: (1) He is depriving a person of liberty.
+We can be proud of the fact that, even in the dark ages, our law recognised the need for strict control of a deprivation of liberty: no free man, so King John was obliged to concede in clause 39 of Magna Carta (9 Hen 3), is to be arrested, or imprisoned nor will we go against him or send any against him, except by the lawful judgment of his peers or by the law of the land. (2) Only exceptionally will the law countenance a deprivation of liberty at the direction of the executive, rather than of the judiciary before whom protections are built into the system. (3) In particular the procedure entitles the Minister to effect a persons recall without having received any representations by him or on his behalf. (4) Often, as in the present case, the Minister is depriving a person of liberty shortly after a judicial body concluded that, albeit subject to conditions, he was, on the contrary, entitled to liberty. (5) The person whom the Minister is depriving of liberty is, as a restricted patient, a member of a particularly vulnerable group and therefore any interference with their rights must be subject to strict scrutiny (Zagidulina v Russia, European Court of Human Rights (ECtHR), 2 May 2013, Application No 11737/06, para 52).
+The patient may well be unable to respond to his recall in a manner which, objectively, would best serve his interests. (6) The recall deprives the person of liberty for an indefinite length of time subject only to the possibility of further discharge at some stage. (7) The recall exposes the person to the possible administration to him of medical treatment without his consent pursuant to section 58(3)(b) of the Act.
+E: QUESTIONS (1), (2) AND (3)
+The appellant cannot contend that the explanation provided to him by Mr Hart at the time of his recall failed to comply with the Ministers published policy referable to the provision of an explanation at that first stage.
+In this regard the appellant invokes a different strand of the common law; and the cornerstone of his submission is the decision of the House of Lords in Christie v Leachinsky [1947] AC 573.
+There police officers arrested the respondent without a warrant.
+They told him that they were arresting him for an offence categorised as a misdemeanour, for which there was no power to arrest without a warrant.
+In fact they had reasonable grounds for suspecting that he had committed a felony, namely larceny of a bale of cloth, which, but for the deficit identified by the House of Lords, would have entitled them to arrest him without a warrant.
+The deficit was that they did not tell him that they were arresting him on suspicion of larceny of the cloth.
+Viscount Simon said at p 586: in normal circumstances an arrest without warrant either by a policeman or by a private person can be justified only if it is an arrest on a charge made known to the person arrested.
+Lord Simonds said at p 592: Arrested with or without a warrant the subject is entitled to know why he is deprived of his freedom, if only in order that he may, without a moments delay, take such steps as will enable him to regain it.
+And at p 593 he referred to the principle, which lies at the heart of the matter, that the arrested man is entitled to be told what is the act for which he is arrested.
+Lord du Parcq expressed it starkly at p 598: a man is entitled to his liberty, and may, if necessary, defend his own freedom by force.
+If another person has a lawful reason for seeking to deprive him of that liberty, that person must as a general rule tell him what the reason is, for, unless he is told, he cannot be expected to submit to arrest, or blamed for resistance.
+When Mr Hart told the appellant that the ground for his recall was a deterioration in his mental health, the Ministers duty about what to explain to him at that first stage was in my view satisfied.
+It was an accurate summary of the ground.
+Deterioration in health is not the only permissible ground for recall.
+For example the commission of a crime or the breach of a condition would, if of sufficient significance (R (MM) v Secretary of State for the Home Department [2007] EWCA Civ 687, para 50, Toulson LJ), justify a recall.
+Just as in the Christie case the officers had to tell the respondent only that the ground of his arrest was the suspected larceny of the cloth, without any need to refer to the grounds for their suspicion, so there was no need at that stage for Mr Hart or anyone else to communicate to the appellant the grounds for considering that his mental health had deteriorated.
+In any event, had he wanted to understand those grounds, the appellant had only to recall his discussion with Mr Hart and Ms Weldon that morning when, as Mr Harts written note makes clear, they had ventilated their concerns with him.
+It was reasonable for the Department of Health, when introducing its guidelines, to have suggested both that, at the time of his recall, a restricted patient is likely to be under stress and probably not able to digest a detailed presentation of the reasons for it and that those, for example the police, deputed to effect the recall, often in an emergency, might well know little or nothing about the background to it.
+Equally the effect of the Ministers immediate reference of the appellants case to the First tier Tribunal was that the failure to have provided him with detailed reasons for the recall at that stage did not delay his recourse to that facility for seeking renewed discharge.
+If, as I conclude, there was at the time of his recall no breach of the appellants right at common law, was there nevertheless a violation at that time of his right under article 5(2) of the Convention?
+Inevitably I reach for the decision of the European Commission of Human Rights, and thereafter of the ECtHR, on facts closest to those of this appeal: X v United Kingdom (1981) 4 EHRR 188.
+The applicant, a restricted patient, challenged the Home Secretarys recall of him in 1974 to a secure hospital following his conditional discharge, pursuant to the Mental Health Act 1959.
+Reporting in July 1980 to the ECtHR, the Commission concluded that his recall did not violate article 5(1) of the Convention.
+In relation to article 5(2), however, the Commission accepted at para 107 that: it may not be the role of police officers, who are charged with the sometimes delicate task of arresting a patient, to inform him of the detailed reasons of arrest or recall, as they are not qualified to assess the patients condition and his ability to understand the position.
+However, the responsibility of informing the patient or his representatives will, in such circumstances, fall on the medical officers concerned.
+Then in its report the Commission added and this is the high point of the appellants submissions in this connection: Nevertheless this obligation has to be discharged promptly, ie at the latest on arrival at the hospital.
+In the event, in the light of an unresolved dispute between the applicant and the hospital as to what he had been told on arrival, the Commission concluded that a violation of article 5(2) had at any rate occurred seven weeks later when his solicitors request for reasons for the recall had been inadequately addressed on behalf of the Home Secretary.
+Two points are worthy of note: (1) Under section 66 of the Mental Health Act 1959, the power to discharge a restricted patient was vested solely in the Home Secretary and the role of a tribunal, namely the Mental Health Review Tribunal, was only advisory. (2) By way of swift response to the Commissions report (and as the ECtHR was informed when in 1981 it came to consider the Commissions reference see para 16 of its judgment), the Home Secretary issued advisory circulars about the stages at which recalled patients should be informed of the reasons for their recall, which closely parallel the circulars still operative today.
+Upon reference to it of the X case, the ECtHR agreed with the Commission that the relief available in the habeas corpus proceedings which the applicant had swiftly taken was inadequate to satisfy his right under para 4 of article 5 of the Convention and, in that there was at that time no other avenue by which to challenge his continued detention, his right under that paragraph had been violated.
+When it turned to para 2, the court stressed the link between it and para 4: 66. anyone entitled to take proceedings to have the lawfulness of his detention speedily decided cannot make effective use of that right unless he is promptly and adequately informed of the facts and legal authority relied on to deprive him of his liberty.
+Its conclusion was that, in that the complaint under para 2 was no more than an aspect of the complaint under para 4, there was no need to rule separately upon it.
+In Fox, Campbell and Hartley v United Kingdom (1990) 13 EHRR 157 the ECtHR held that, in arresting the applicants in Northern Ireland on no more than a suspicion that they were terrorists, the UK authorities had deprived them of their liberty in violation of para 1 of article 5.
+But the court rejected their complaint under para 2.
+It explained the paragraph as follows: 40.
+This provision is an integral part of the scheme of protection afforded by article 5: by virtue of paragraph (2) any person arrested must be told, in simple, non technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph (4).
+Whilst this information must be conveyed promptly (in French: dans le plus court dlai), it need not be related in its entirety by the arresting officer at the very moment of the arrest.
+Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features.
+The Commissions throw away remark in the X case that article 5(2) requires detailed reasons for a recall to be provided to a restricted patient at the latest on arrival at the hospital is far too slender a thread on which to hang a conclusion that the appellants right under para 2 was breached on the day of his recall.
+The remark shows no understanding of the special features of a recall which, often effected in an emergency, may, as in the case of the appellant, render the hospital unacquainted with those reasons until later.
+The flexibility, albeit limited, of the courts analysis in the Fox case is much to be preferred.
+In relation to the explanation required to be provided to the appellant at the time of his recall, I conclude that the demands of article 5(2) did not extend beyond the demands of the common law.
+Their demands were met.
+In answer to the first question, the Court of Appeal was right to conclude that Mr Harts explanation to him at that time was legally sufficient; and it followed that the second and third questions were indeed not applicable.
+The court is told that, since 2012, it has become the Ministers practice to include within the warrant to be served upon the restricted patient at the time of recall a brief reason for it.
+Indeed, in the Mental Health Act 1983: Code of Practice published in 2015, the Department of Health goes further than the guidance given in 1993 in relation to stage one when it states at para 4.19: Where a conditionally discharged patient is to be recalled to hospital, a brief verbal explanation of the Secretary of States reasons for recall must be provided to the patient at the time of recall unless there are exceptional reasons why this is not possible, eg the patient is violent or too distressed.
+Were this guidance to be followed and were the warrant served upon the patient also to include a brief reason for the recall, the Ministers obligations to provide an explanation for it at the time of his recall would be likely to be discharged.
+F: QUESTIONS (4) and (5)
+The starting point for consideration of the fourth question, namely the effect of the conceded breaches on the lawfulness of the appellants actual detention, is the decision of this court in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245.
+The Home Secretary had, so the majority held, infringed the rights of two men in reaching a decision to detain them pending deportation by reference to unpublished criteria inconsistent with her published criteria.
+Also by a majority, the court decided that the infringement had rendered their actual detention unlawful.
+It was obvious that the criteria by reference to which the Home Secretary decided whether initially to detain the men, and thereafter whether to continue to detain them, bore in principle, ie at least theoretically, on the decision to detain them even though, as the court also proceeded to find, they would nevertheless have fallen to be detained by reference to the published criteria.
+Lord Dyson said: 68.
+It is not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment.
+In the present context, the breach of public law must bear on and be relevant to the decision to detain.
+Lady Hale said: 207. the breach of public law duty must be material to the decision to detain and not to some other aspect of the detention and it must be capable of affecting the result which is not the same as saying that the result would have been different had there been no breach.
+Lord Kerr added at para 248 that the breach had to have a direct bearing on the decision to detain.
+Lord Kerrs adjective took centre stage in this courts decision in R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23, [2011] 1 WLR 1299, which swiftly followed the Lumba case.
+In breach of a rule and indeed by way of departure from her own policy the Home Secretary had failed on about 12 occasions in the course of less than two years to conduct a monthly review of whether the appellant should continue to be detained.
+By a majority the court held that her failures had rendered his detention unlawful.
+Lady Hale said at para 77 that the departure from policy was so obvious and so persistent and so directly related to the decision to continue to detain that it was clearly material in the Lumba sense.
+Lord Kerr stressed at paras 83 and 88 that the public law error touched directly on the decision to detain.
+The first of three decisions on the other side of the line is that of the House of Lords in R (Saadi) v Secretary of State for the Home Department [2002] UKHL 41, [2002] 1 WLR 3131, and, following the appellants application to it, also of the ECtHR in Saadi v United Kingdom (2008) 47 EHRR 427.
+The reason why the appellant had been detained was to enable the determination of his claim for asylum to be subject to a fast track procedure but for three days a different explanation for his detention was provided to him.
+The House of Lords held that the error did not affect the legality of his detention.
+The ECtHR held that, in informing him only after three days of the true reason for his detention, the Secretary of State had failed to inform him of it promptly and so had breached his right under article 5(2) of the Convention; but there was no suggestion that the breach had affected the validity of his detention.
+The second of the decisions is that of the House of Lords in Cullen v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 39, [2003] 1 WLR 1763.
+Police officers were statutorily entitled in limited circumstances to defer compliance with an arrested persons request to see a solicitor but they were required as soon as practicable to tell him their reason for deferring it.
+It was held that their breach of the latter requirement did not make the appellants detention unlawful.
+Lord Millett at para 61 described his claim to that effect as hopeless.
+The third of the decisions is that of this court in R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66, [2015] AC 1344.
+The court held that the Secretary of State had breached the rights of prisoners, implied by article 5 of the Convention, to be given access to programmes which might enable them to demonstrate to the Parole Board that they no longer represented an unacceptable danger to the public.
+Lord Mance and Lord Hughes considered that the implied rights were analogous to rights under article 5(4).
+They stated unequivocally at para 37 that a breach of article 5(4) did not directly impact on the lawfulness of detention; and they held at para 38 that, likewise, breach of the implied rights did not affect the lawfulness of the prisoners detention.
+In my opinion there is no link, let alone a direct link, between, on the one hand, the Ministers wrongful failure for 12 days to provide to the appellant an adequate explanation for his recall and, on the other, the lawfulness of his detention.
+The failure did not delay reference of his case to the First tier Tribunal.
+Nor has the appellant suggested that it delayed institution of the present proceedings.
+Even if it had created delay, the unequivocal statement of Lord Mance and Lord Hughes in the Kaiyam case about the limited effects of a violation of article 5(4) would appear to exclude the relevance of the delay to the validity of the detention itself.
+The case closest to the present is the Saadi case where the difference was one only of degree (namely a delay of three days rather than of 12) and not of kind.
+The wise judge will also address the consequences of the argument presented to him.
+In the present case there was a clear departure from the 72 hour policy, in relation to which the Minister can claim no extenuating circumstances.
+But it is easy to imagine lively arguments in other cases about either the adequacy of the reasons provided to the patient for the recall or the practicability of having provided them to him within that time frame.
+I would be very concerned if the right of a restricted patient to walk out of hospital or to seek to do so should depend upon where the stronger of such an argument lies.
+I therefore consider that the Court of Appeal was right to conclude, in answer to the fourth question, that the conceded breaches did not make the appellants detention for those 12 days unlawful; and to conclude that the fifth question was therefore inapplicable.
+G: QUESTION (6)
+As a result of the conceded breaches, the appellant suffered no pecuniary loss.
+But in his evidence, unchallenged by the Minister, he says that in the months following his recall to hospital he suffered great distress.
+Nevertheless, as one would expect, he attributes his distress to the recall itself.
+He does not identify the failure for 12 days to have provided him with the reasons for it as an additional cause of it and, although one may infer that to some extent it increased his level of frustration and anxiety, the time span of only 12 days precludes any inference that it caused significant non pecuniary injury.
+The appellant is not entitled to damages for the breach of his right at common law to receive an adequate explanation for his recall within the time identified by published policy.
+The breach does not amount to a tort and there is nothing to suggest that damages would have been available to the appellant in any ordinary action which he might have brought against the Minister in that respect; see section 31(4)(b) of the Senior Courts Act 1981.
+But the Ministers concession is also of a breach of the appellants right under article 5(2) of the Convention.
+Thus the claim for damages must be appraised also through the prism of section 8 of the Human Rights Act 1998 which in particular requires the court, by subsection (3), to make an award of damages for the breach only if it is necessary to afford just satisfaction to the appellant and, by subsection (4), to take into account the principles applied by the ECtHR in relation to the award of compensation under article 41 of the Convention.
+In R (Greenfield) v Secretary of State for the Home Department [2005] UKHL 14, [2005] 1 WLR 673, Lord Bingham of Cornhill stressed at paras 4 and 9 that the focus of the Convention was upon securing the observance of minimum standards in the protection of human rights and that compensation to the victim of a breach was of secondary, if any, importance to it.
+Before the House, however, was a violation of article 6; and, having referred to the specific provision under article 5(5) for compensation for violation of any of the earlier paragraphs of that article, Lord Bingham stressed in para 7 the risk of error if the decisions of the ECtHR in relation to one article were read across so as to apply to another.
+In R (Faulkner) v Secretary of State for Justice and R (Sturnham) v Parole Board [2013] UKSC 23 and 47, [2013] 2 AC 254, the rights of two prisoners under article 5(4) to a speedy review of their continued detention by the Parole Board had been breached.
+In the first case the wrongful delay was about ten months and in the second it was about six months.
+In the first case this court reduced the award of damages to 6,500 and in the second it restored an award of 300.
+In explaining the courts decisions Lord Reed conducted a masterly exposition of the approach of the ECtHR to damages for violations of article 5(4).
+Having observed at para 53 that the ECtHR was prepared, without direct proof, to presume harm in the form of feelings of frustration and anxiety and in answer to his question is there a de minimis principle?, he concluded that: 66. a delay [in the conduct of the requisite review] of three months or more is likely to merit an award, whereas the stress and anxiety which can be inferred from a delay of shorter duration are unlikely to be of sufficient severity.
+In Damages and Human Rights, 2016, Hart Publishing, Dr Varuhas argues in chapter 5(1) that in the Faulkner and Sturnham cases this court has sought too rigidly to apply the principles of the ECtHR, such as they are, to awards of compensation for Convention violations.
+Be that as it may, it is clear to me that damages should not be payable to the appellant for the breach of his right under article 5(2) of the Convention any more than that they should be payable for the breach of his right at common law.
+He has failed to establish that their effects on him were sufficiently grave.
+Nor would a formal declaration in this courts order add anything to my recording in this judgment of the Ministers concessions.
+No doubt under pressure, the Court of Appeal failed in its judgments to address the sixth question, squarely raised though it had been.
+But that courts wholesale dismissal of the appeal incorporates the correct, negative, answer.
+I therefore propose that the appeal should be dismissed.
+H: DISPOSAL
+LORD REED:
+I respectfully agree with the judgment of Lord Wilson, and wish only to add some brief observations in relation to the legal consequences, under the common law, of the Secretary of States failure to comply with the administrative policy under which the appellant should have been provided, after being recalled to hospital, with a full explanation of the reasons for the decision to recall him.
+It was decided on 19 July 2012 that the appellant should be recalled to hospital, and the decision was implemented that day.
+There was, under the common law, a duty to give the appellant reasons for that decision.
+That duty followed from the fact that the effect of the decision was to deprive him of his liberty.
+For the reasons explained by Lord Wilson at para 25, the Secretary of State complied with that duty.
+The case illustrates the extent to which the common law duty to give reasons for a decision is context specific, in the sense that what is required in order to comply with the duty depends on the context in which it arises.
+Quite separately, the Secretary of State had adopted an administrative policy that a full explanation of the decision to recall should be provided to patients within 72 hours of their re admission to hospital.
+That policy was adopted in the context of a statutory scheme governing the discharge of restricted patients, under the Mental Health Act 1983 as amended, which imposes on the Secretary of State a duty to refer the patients case to the First tier Tribunal within a month of his recall to hospital, as Lord Wilson explains at para 11.
+On such a reference, the tribunal has the power to order the patients discharge.
+It is conceded that the adoption of the policy created a public law duty to comply with it, absent good reason for non compliance.
+That duty arose under the common law in accordance with principles of good administration.
+It is conceded that there was a failure to comply with that duty in the appellants case.
+At the hearing of the appeal, the discussion of the effect of that failure focused primarily upon the appellants Convention rights.
+So far as the legal consequences under the common law are concerned, the failure to comply with the policy did not in my view render the decision to recall invalid, either ab initio or with effect from the expiry of the 72 hour period.
+That is so for three reasons.
+First, the duty is to provide reasons ex post facto.
+It remains capable of meaningful performance even after the 72 hour period has expired.
+Such performance can if necessary be enforced.
+Delayed performance does not, in this situation, call into question the validity of the antecedent decision.
+Secondly, the duty to refer the case to the tribunal within a month provides a statutory mechanism for ensuring that an adequate justification is provided for the patients detention in hospital, failing which he will be discharged.
+It would be inconsistent with the statutory framework governing discharge if an entitlement to release arose under the common law as soon as there had been a failure to comply with the administrative policy.
+Thirdly, it would be perverse if the legal consequence of the breach of a duty imposed for the sake of good administration was one which itself created administrative chaos, such as would occur if patients whose condition might require detention in hospital were entitled to walk out of the hospital as soon as the 72 hours had expired.
+For these reasons, in addition to those given by Lord Wilson, I agree that the failure to comply with the policy did not affect the validity of the decision to recall the appellant, or therefore the lawfulness of his consequent detention.
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+By these proceedings, a mother seeks to prevent a father from publishing a book about his life containing certain passages which she considers risk causing psychological harm to their son who is now aged 12.
+Mother and son now live in the United States of America and so the family court in England and Wales has no jurisdiction to grant orders protecting the childs welfare.
+Instead, these proceedings have been brought in his name, originally by his mother and now by his godfather as his litigation friend, alleging that publication would constitute a tort against him.
+The tort in question is that recognised in the case of Wilkinson v Downton [1897] 2 QB 57 and generally known as intentionally causing physical or psychological harm.
+What, then, is the proper scope of the tort in the modern law? In particular, can it ever be used to prevent a person from publishing true information about himself?
+As the object of the proceedings has been to protect the child from harm, all the parties have until now been anonymous, as has the country where the child now lives.
+This court has decided that the tort does not have the scope contended for on the childs behalf and hence that the book may be published including the specific passages to which objection is taken.
+This means that the book will inevitably be published in the very near future.
+In those circumstances there can be no justification for keeping secret the information contained in the book.
+This includes, obviously, the authors name and also the country where mother and son are now living.
+The book, however, uses pseudonyms for both the mother and the child and so this judgment will continue to do so.
+But this court is now able to describe the book and its contents more fully than the lower courts were able to do.
+In this way, the reasons why both the mother and the father have been motivated to act as they have should become much clearer than perhaps they have been hitherto.
+The book
+The father is James Rhodes, the concert pianist, author and television filmmaker.
+The book is entitled Instrumental.
+The author believes that music has, quite literally saved my life and, I believe, the lives of countless others.
+It has provided company where there is none, understanding where there is confusion, comfort where there is distress, and sheer, unpolluted energy where there is a hollow shell of brokenness and fatigue.
+He wants to communicate some of what music can do, by providing a sound track to the story of his life.
+And woven throughout is going to be my life story.
+Because its a story that provides proof that music is the answer to the unanswerable.
+The basis for my conviction about that is that I would not exist, let alone exist productively, solidly and, on occasion, happily without music.
+So the book juxtaposes descriptions of particular pieces of music, why he has chosen them, what they mean to him, and the composers who wrote them, with episodes of autobiography.
+He wants the reader to listen to the 20 music tracks while reading the chapters to which they relate.
+Thus far, there would be nothing for anyone to worry about.
+But the authors life has been a shocking one.
+And this is because, as he explains in the first of the passages to which exception is taken, I was used, fucked, broken, toyed with and violated from the age of six.
+Over and over for years and years.
+In the second of those passages, he explains how he was groomed and abused by Mr Lee, the boxing coach at his first prep school, and how wrong it is to call what happened to him abuse: Abuse.
+What a word.
+Rape is better.
+Abuse is when you tell a traffic warden to fuck off.
+It isnt abuse when a 40 year old man forces his cock inside a six year old boys ass.
+That doesnt even come close to abuse.
+That is aggressive rape.
+It leads to multiple surgeries, scars (inside and out), tics, OCD, depression, suicidal ideation, vigorous self harm, alcoholism, drug addiction, the most fucked up of sexual hang ups, gender confusion (you look like a girl, are you sure youre not a little girl?), sexuality confusion, paranoia, mistrust, compulsive lying, eating disorders, PTSD, DID (the shinier name for multiple personality disorder) and so on and on and on.
+I went, literally overnight, from a dancing, spinning, gigglingly alive kid who was enjoying the safety and adventure of a new school, to a walled off, cement shoed, lights out automaton.
+It was immediate and shocking, like happily walking down a sunny path and suddenly having a trapdoor open and dump you into a freezing cold lake.
+You want to know how to rip the child out of a child? Fuck him.
+Fuck him repeatedly.
+Hit him.
+Hold him down and shove things inside him.
+Tell him things about himself that can only be true in the youngest of minds before logic and reason are fully formed and they will take hold of him and become an integral, unquestioned part of his being.
+He describes how he learnt to dissociate himself from what was happening, to block it out of his memory, how when he moved to other schools he had learnt to offer sexual favours to older boys and teachers in return for sweets and other treats.
+He gives a searing account of the physical harms he suffered as a result of the years of rape and of the psychological effects, which made it hard for him to form relationships and left him with an enduring sense of shame and self loathing.
+He recounts the ups and downs of his adult life: a year at Edinburgh University filled with drugs and alcohol, leading to his first admission to a psychiatric hospital; a year working and sobering up in Paris; three years studying psychology at University College London, leading to a highly successful career as a salesman in financial publishing; meeting and marrying the mother, whom he calls Jane, an American novelist then living in London; making a perfect home with her.
+He is kind about his wife The poor thing didnt stand a chance and hard upon himself: Ive honestly no idea what I was thinking, beyond that rather sad hope that if I continued to do what normal people did then I would somehow become normal.
+But the idea that a man like me could not only get married, but maintain, nurture, commit to a marriage was fucking ridiculous.
+My whole concept of love was skewed.
+Then their child, whom he calls Jack, was born: My son was and is a miracle.
+There is nothing I will experience in my life that will ever match the incandescent atomic bomb of love which exploded in me when he was born.
+He wanted to be a perfect father, but I dont think that I will ever be able to make my peace with the fact that the ripples of my past became tidal waves when he was born.
+His past had installed an unshakeable belief that all children suffer through childhood in the most abominable ways and that nothing and no one can protect them from it.
+Eventually, he looked for professional help from a charity specialising in helping victims of child sexual abuse and was told that he must tell his wife about the abuse.
+So he did.
+Their child was then four years old.
+It is, apparently, very common for the world to spin completely off its axis when your child approaches the age you were when the abuse began.
+Instead of returning to drink and drugs he resorted to self harm: Thats the thing about cutting not only do you get high, but you can express your disgust at yourself and the world, control the pain yourself, enjoy the ritual, the endorphins, the seedy, gritty self violence privately and hurt no one other than yourself.
+But his wife found out and he was persuaded to go into hospital again.
+Among the passages which have not been challenged is a graphic account of the effect of the psychotropic drugs which he was forced to take in hospital.
+He tried to commit suicide, escaped from the hospital, planned a second attempt at suicide but rang his wife for a last word with his son, and was persuaded to meet her.
+So he was returned to hospital.
+He worked hard at being a model patient so that he could be let out.
+But it was not a cure.
+Even out of hospital, off meds, physically present for my family, I was a ghost.
+A friend offered him a life line, treatment in a hospital in the United States, where he spent two months.
+By the end of it I had, miraculously, stopped hating myself quite so much.
+Id put on weight, cleared away a lot of the wreckage of the past, repaired some relationships and found a way to live with myself that, most days, left me relatively calm and composed.
+There is a moving passage about rebuilding his relationship with his son: Thats the weird thing about kids they have a capacity for forgiveness that most adults can only aspire to.
+He has always loved me it was inbuilt and immutable and I him.
+After a few weeks of playing, singing, hanging out, we felt absolutely connected and back to normal.
+But the marriage could not be repaired.
+Mother and father agreed to a trial separation and he moved out.
+Things started to get more and more wobbly, not helped by his going to the police for the first time in the hope of exorcising some of the past horrors, where he found the process brutal, shaming, vile.
+He began self harming once more.
+Eventually, the mother decided to move back to the United States.
+Once again, he is generous: She had, understandably and justifiably, had enough.
+There had been so much destruction, so much uncertainty and pain, and clearly Jane had decided that Jacks needs had to come first.
+She was a mother first and foremost and not some patron saint of lost causes.
+They got into a routine.
+He would go over there twice a year, she would bring him over here twice a year, they would Skype twice a week.
+Interwoven with this painful story is the story of his relationship with music.
+He discovered music, specifically, Bachs Chaconne for solo violin in D minor, transcribed for piano by Busoni, while still at the preparatory school where he was being so brutally abused: that piece became my safe place.
+Any time I felt anxious (any time I was awake) it was going round in my head.
+Its rhythms were being tapped out, its voices played again and again, altered, explored, experimented with.
+I dove inside it as if it were some kind of musical maze and wandered around happily lost.
+It set me up for life; without it I would have died years ago, Ive no doubt.
+But with it, and with all the other music that it led me to discover, it acted like a force field that only the most toxic and brutal pain could penetrate.
+At his next preparatory school he largely taught himself to read music and play the piano.
+At Harrow, he had his first proper teacher, who was awesome.
+He discovered that literally the only thing in the universe I realised I wanted was to travel the world, alone, playing the piano in concert halls.
+Then he gave it up during the ten years of university, building a career and getting married.
+But after his son was born and the demons returned, I looked for distractions.
+I looked for a way out that didnt involve homicide or suicide.
+He found it in music.
+He set about building a business partnership with the agent of the greatest pianist in the world, but was persuaded instead to train as a pianist himself.
+He worked hard.
+And when he had begun to resort to self harm, he decided to organise his first public concert.
+He rented a hall on the South Bank, the hall was filled, and the concert went well: I realise that all those fantasies about giving concerts that I had as a kid, that kept me alive and safe in my head, were accurate.
+It really is that powerful.
+And I knew I wanted to do it forever.
+No matter what.
+Then the suicidal ideas and attempts and hospitalisation took over.
+But a friend visiting him in hospital brought him an iPod nano loaded with music inside a giant bottle of shampoo (toiletries being the only gifts allowed).
+Once again music was his salvation.
+It persuaded him to do what he needed to do to get out.
+After separating from his wife, he started to get more involved in the piano again.
+And in a caf he met the man who was to become his manager.
+Together they arranged for him to record his first CD, Razor Blades, Little Pills and Big Pianos.
+He found a sponsor to enable him to concentrate on his music.
+He did a documentary about Chopin for the BBC.
+His manager arranged concerts at the Roundhouse and the Queen Elizabeth Hall.
+Together they devised a new sort of concert, in which the pianist talked about the music, the composer and what it meant to him, in an informal way quite unlike the usual classical music concert.
+It was a success.
+Through his manager he met the woman who was to become his second wife.
+The concerts led to some press interest, including an interview with the Sunday Times in which he mentioned the abuse which had happened at school.
+This prompted the head of the junior school in his first school, who had known that something was wrong but not what it was, to get in touch and to provide a police statement.
+Mr Lee was found, still coaching small boys boxing, and prosecuted.
+But he died before he could stand trial: Maybe one day I will forgive Mr Lee.
+Thats much likelier to happen if I find a way to forgive myself.
+But the truth, for me at any rate, is that the sexual abuse of children rarely, if ever, ends in forgiveness.
+It leads only to self blame, visceral, self directed rage and shame But shining a light on topics like this is hugely important.
+And getting hundreds of supportive and grateful messages from people who had also gone through similar experiences was an indicator to me that it needs to be talked about even more.
+From then his career went from strength to strength.
+There have been many concerts, all over the world.
+There have been four more albums.
+There was a television series for Sky Arts, Piano Man.
+There was even talk, though it came to nothing, of his appearing in the Royal Variety Show.
+He and his manager had found a new and different way of presenting classical music to the world and it worked.
+There have been bad times since as well as good times Sadly I am only ever two weeks away from a locked ward but the overall message is one of hope: I lost my childhood but gained a child.
+I lost a marriage but gained a soulmate.
+I lost my way but gained a career and a fourth or fifth chance at a life which is second to none.
+These proceedings
+During their divorce, the mother and father agreed to include the following recital, recital K, in a residence and contact order made in London on 15 June 2009: And upon the parties agreeing to use their best endeavours to protect the child from any information concerning the past previous history of either parent which would have a detrimental effect upon the childs
+well being
+A first draft of the book was sent to the publishers in December 2013.
+In February 2014 it was leaked to the mother and some changes were made as a result, including the use of pseudonyms for mother and child.
+The mother did not consider that those changes had gone far enough.
+In June 2014, she launched these proceedings on behalf of the child, claiming against the father and the publishers an injunction prohibiting publication without the deletion of a large number of passages.
+The causes of action alleged were misuse of private information, negligence and the intentional infliction of harm.
+An anonymity order was made at the same time, prohibiting the publication of any information which might lead to the identification of the child as a party to the proceedings or the subject of the information to which the proceedings related.
+All parties have since filed evidence but there have been no findings on the factual matters in dispute.
+The mother has filed a report from Dr Christine Tizzard, a consultant child psychologist who interviewed the child in June 2014.
+Her opinion was that he is likely to suffer severe emotional distress and psychological harm in the event that he is exposed to the material in the publication.
+The child has been diagnosed with Aspergers syndrome, attention deficit hyperactivity disorder, dyspraxia and dysgraphia.
+He qualifies for an Individualised Educational Program in the United States and receives specialist support and counselling.
+In her view, the information in the book would be inappropriate for any 11 year old child to read and have access to, but it would be even more devastating for this child, because of his difficulties in processing information: his psychological schemas are not malleable, he receives information in a literal way and is unable to conceptualise it in an alternative way, and he would view himself as responsible for some of his fathers distress and an extension of his father.
+He is already prone to self harm and emotional outbursts and these would probably increase.
+Both parties accept that it is most unlikely that the child will come into possession of the book itself.
+The publishers plan to publish it in hard copy in the UK and much of the rest of the English speaking world, and to retail it in shops and on line, but there are no plans at present to publish it in the USA.
+It will also be available for purchase as an e book.
+The father accepts that knowing what happened to him would upset and embarrass the child, but not that it will be harmful if dealt with in the right way and at the right time.
+The bare bones of his story have already appeared in articles and interviews which are available on line.
+The mother is concerned that the child who is proud of his father, has googled him in the past.
+If he did so in future he would be likely to come across reviews and references to the book.
+The application for an interim injunction came before Bean J in private in July 2014.
+His judgment has not been published.
+He dismissed the application and struck the proceedings out on the basis that the child had no cause of action in tort against the father or the publishers.
+He said that there was no precedent for an order preventing a person from publishing their life story for fear of its causing psychiatric harm to a vulnerable person, nor should there be.
+He held that a cause of action under Wilkinson v Downton did not extend beyond false or threatening words.
+The childs appeal was heard in August 2014 and judgment given in October: [2014] EWCA Civ 1277.
+The Court of Appeal held that there was no claim in misuse of private information or in negligence, but that the claim for intentionally causing harm should go for trial.
+The factual issues would be the fathers intention in publishing the book, the level of harm which the child was likely to suffer and the cause of such harm.
+The leading judgment was given by Arden LJ.
+She held that the action under Wilkinson v Downton was not limited to false or intimidatory statements, but she considered other ways in which the tort might be kept within acceptable limits.
+She said that it was inconceivable that the law would render all intentional statements which cause psychiatric harm actionable in damages.
+In some cases a person may have to tell bad news which is liable to cause psychiatric harm.
+But there may be many ways in which the court could draw the line between acceptable intentional statements or acts which cause psychiatric harm, and those which are actionable under this head (para 68).
+She added (para 69) that it had to be shown that the act was unjustified in the sense that the defendant was not entitled to do it vis vis the particular claimant (original emphasis).
+Thus she met the objection that many disturbing publications may foreseeably cause psychiatric harm to someone of sufficient vulnerability by treating the cause of action as confined to the person at whom the act was directed, and therefore the question of justification was similarly confined.
+Arden LJ had noted at the outset of her judgment that the book was dedicated to the child, and the fact that the father had accepted a responsibility to use his best endeavours to ensure that OPO is protected from harmful information was sufficient in her judgment to mean that there is no justification for his words, if they are likely to produce psychiatric harm.
+As to the mental element of the tort, Arden LJ held that the necessary intent to cause harm could be imputed to the father, since he was aware of the psychiatric evidence about the harm which his son would be likely suffer if he read some of the contents of the book.
+She said, correctly, that there was a consistent line of authority from Wilkinson v Downton that even if a person did not intend to cause such harm, an intent to do so could be imputed to him if that was the likely consequence.
+In a short concurring judgment Jackson LJ said that for a statement to give rise to liability under Wilkinson v Downton it need not be false.
+Rather, it must meet the essential characteristics that the statement is unjustified and that the defendant intends to cause or is reckless about causing physical or psychiatric injury to the claimant.
+Jackson LJ considered that the following facts were sufficient to establish that the claimant had a good prospect of success for the purposes of granting an interlocutory injunction: The book contained graphic descriptions of the abuse which the i) appellant had suffered and his incidents of self harm. ii) Those passages were likely to be quoted by reviewers or newspapers who serialised the book. iii) On the uncontradicted expert evidence those passages were likely to cause psychological harm to the claimant. iv) The book was dedicated to the claimant and partly addressed to him. v) The appellant knew of the risks posed to the claimant because of his vulnerabilities and had for that reason subscribed to Recital K. McFarlane LJ agreed with both judgments.
+The form of order was the subject of a supplemental judgment after a further hearing in private.
+The court granted an interim injunction, restraining the defendants from making generally available to the public by any means all or any part of the information referred to in Confidential Schedule 2 to this Order (the information) whether by publishing the particular extracts identified in Confidential Schedule 3 or by publishing any substantially similar words to like effect.
+Confidential Schedule 2 reads thus: Information referred to in the Order (1) The information or purported information that the respondents intended to publish in a book entitled Instrumental (the Book) (extracts of which are particularised in Confidential Schedule 3) which give graphic accounts of the First defendants account of sexual abuse he suffered as a child; his suicidal thoughts and attempts; his history of and treatment for mental illness and incidents of self harming; his thoughts about killing the appellant; his fears that the appellant would also be a victim of sexual abuse and linking this account to the appellant. (2) Any information liable to or which might lead to the identification of the appellant (whether directly or indirectly) as the subject of these proceedings or the material referred to above.
+In the judgment about the form of order Arden LJ emphasised the use of word
+graphic in the order, which she explained as follows: We take the word graphic to mean vividly descriptive.
+In judging what is vividly descriptive, we have borne in mind that the person to be protected is a vulnerable child.
+In these circumstances, we consider that what should be injuncted is that which we consider to be seriously liable to being understood by a child as vividly descriptive so as to be disturbing.
+Confidential Schedule 3 contains some 40 extracts from the book.
+Some fall within the general description in Confidential Schedule 2 as explained by Arden LJ and some do not.
+By no means all the passages in the book which might be thought to fall within that general description are included.
+Nowhere in the listed extracts or in the current version of the book is there mention of thoughts about killing the child.
+Some of the quotations in paras 3 to 15 above are among the 40 extracts listed; many are not.
+The prohibition does not relate to information contained in the book apart from the Confidential Schedules or contained in the public judgment of the court.
+Nor does it apply to any material which had been placed in the public domain before 1 September 2014 and either appeared on the internet in the fathers name in a form and on a site accessible at 1 September 2014 or was attributed to the father and contained in a national television programme transmitted in England within the previous 12 months.
+The trial of the action was listed for April 2015.
+The father and the publishers contend that on the agreed facts the child has no cause of action against them.
+Wilkinson v Downton
+Mr Downton secured a place for himself in legal history by a misconceived practical joke.
+He thought that it would be a cause of harmless amusement among the clientele of the Albion public house in Limehouse to tell the landlords wife, Mrs Wilkinson, a false tale that her husband had fractured his legs in an accident while on his way back from a race meeting and that he had sent a message to ask for her help to get him home.
+It cost her 1 shilling and 10 pence to send her son and another helper on this fools errand, but a matter of far greater concern was the effect on her health.
+She suffered severe shock to her nervous system, which manifested itself in vomiting and weeks of physical suffering.
+Mrs Wilkinson had not shown any previous sign of predisposition to nervous shock.
+She and her husband sued Mr Downton, and the matter came to trial before Wright J and a jury.
+Recovery of the transport costs incurred in response to Mr Wilkinsons supposed request for help presented no legal difficulty.
+Such costs were recoverable as damages for deceit.
+The jury assessed damages for the illness caused to Mrs Wilkinson by her nervous shock (together with her husbands claim for the resulting loss of her services) at 100, but the legal basis for making such an award was problematic.
+Wright J rejected the argument that damages for deceit could include an award for Mrs Wilkinsons suffering, because the essence of liability for deceit was that a maker of a false representation, intended to be acted upon, was liable to make good any loss naturally resulting from the representee acting on it, but the illness suffered by Mrs Wilkinson was not a consequence of her acting on what she was told.
+It was simply a consequence of the shock brought about by the news reported to her.
+Wright J held, at pp 58 59, that a cause of action could be stated in law where a defendant has wilfully done an act calculated to cause physical harm to the plaintiff that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her.
+He continued That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act.
+This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant.
+This compact statement of law contained a number of key features.
+First, he identified the plaintiffs protected interest as her legal right to personal safety.
+Secondly, he identified the defendants act as wilful.
+Thirdly, he described the act as calculated to cause physical harm to the plaintiff.
+Fourthly, he noted the absence of any alleged justification.
+Fifthly, he characterised the wilful injuria as in law malicious despite the absence of any purpose (ie desire) to cause the harm which was caused.
+Having stated the law in that way, Wright J then considered whether it covered Mrs Wilkinsons claim.
+He held that it did.
+He said: One question is whether the defendants act was so plainly calculated to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the defendant, regard being had to the fact that the effect was produced on a person proved to be in an ordinary state of health and mind.
+I think that it was.
+It is difficult to imagine that such a statement, made suddenly and with apparent seriousness, could fail to produce grave effects under the circumstances upon any but an exceptionally indifferent person, and
+therefore an intention to produce such an effect must be imputed
+This passage removes any doubt that Wright J was using the word calculated in the sense of likely to have an effect of the kind which was produced, and that the result was taken in law to be intended by a process of imputation.
+The work of modern scholars is helpful to understanding Wright Js judgment by placing it in its historical context.
+The latter part of the 19th century was a formative period in the law of tort, as in other areas of the common law.
+There was a movement towards general principles of liability for intentional or malicious torts, as there was also for negligence. (See Professor Oliphants chapter, The Structure of the Intentional Torts, in Emerging Issues in Tort Law, 2007, edited by Professor Neyers and others.) The first edition of Pollock on Torts was published in 1887.
+In it he began his discussion of principles by stating it as a general proposition of English law that it is a wrong to do wilful harm to ones neighbour without lawful justification (p 21).
+He acknowledged that this was a modern principle for which there was no express authority, but he reasoned that as the modern law of negligence enforced the duty of fellow citizens to observe in varying circumstances an appropriate measure of prudence to avoid causing harm to one another, much more must there exist, whether it be so expressed in the books or not, the negative duty of not doing wilful harm; subject, as all general duties must be subject, to the necessary exceptions (p 22).
+In later editions he cited an obiter dictum of Bowen LJ in Skinner & Co v Shew & Co [1893] 1 Ch 413, 422 that at common law there was a cause of action whenever one person did damage to another wilfully and intentionally, and without just cause or excuse.
+Wright J was familiar with Pollock on Torts and he referred to the 4th edition in Wilkinson v Downton at p 60.
+The word maliciously was much used both in the law of tort and in criminal law.
+In the famous case of Mogul Steamship Co Ltd v McGregor, Gow & Co (in which the plaintiffs complained about being kept out of the conference of shipowners trading between China and London) Bowen LJ said that the word had an accurate meaning, well known to the law as well as a popular and less precise signification.
+As a legal term it meant an intention to do an act which is wrongful, to the detriment of another: (1889) 23 QBD 598, 612.
+He continued, at p 613: Now, intentionally to do that which is calculated in the ordinary course of events to damage, and which does, in fact, damage another in that other persons property or trade, is actionable if done without just cause or excuse.
+Such intentional action when done without just cause or excuse is what the law calls a malicious wrong (see Bromage v Prosser (1825) 4 B & C 247; Capital and Counties Bank v Henty (1882) 7 App Cas 741, 772, per Lord Blackburn).
+In Bromage v Prosser Bayley J distinguished malice in law, inferred from the defendants intentional interference with the plaintiffs rights, from malice in fact (p 255).
+In the Mogul Steamship case Bowen LJ held that the defendants had just cause to act as they did, because they were free to carry on their trade freely to their best advantage, and the House of Lords agreed [1892] AC 25.
+Just as absence of actual ill will was not a defence if the defendants act wilfully interfered with an interest of the plaintiff which carried a right to legal protection, conversely the existence of ill will was held not to be enough to create a cause of action in the absence of such a right.
+This was the ratio decidendi in the celebrated case of Mayor of Bradford v Pickles [1895] AC 587, from which it followed that insofar as Bowen LJ suggested that any act of interference with anothers trade was prima facie unlawful his dictum was too wide.
+The chief source of water supplied for the citizens of Bradford was a collection of springs on land owned by the corporation at the foot of a hillside on the outskirts of the city.
+Above that land was a tract owned by Mr Pickles, and the springs were fed by water flowing underground from Mr Pickless land.
+Mr Pickles embarked on the work of sinking a shaft on his land which had the effect of altering the flow of water and reducing the volume which fed the springs.
+The corporation brought proceedings for an injunction to restrain him from doing the work.
+The pleader alleged that he was acting maliciously.
+It was argued that he was not acting for the improvement of his own land, but that he simply intended to deprive the corporation of water which it would otherwise have received, with the motive of forcing it to buy him out at a price satisfactory to himself.
+The corporation was granted an interim injunction at first instance, but the injunction was set aside by the Court of Appeal (Lord Herschell, LC, and Lindley and AL Smith LJJ, [1895] 1 Ch 145) and the Court of Appeals judgment was upheld by the House of Lords.
+It was held that Mr Pickles had acted throughout in accordance with his legal rights.
+The corporation had no legal right to the flow of water from his land and, that being so, his motives were irrelevant.
+Lord Halsbury LC said at p 594: This is not a case in which the state of mind of the person doing the act can affect the right to do it.
+If it was a lawful act, however ill the motive might be, he had a right to do it.
+If it was an unlawful act, however good his motive might be, he would have no right to do it.
+Motives and intentions in such a question as is now before your Lordships seem to me to be absolutely irrelevant.
+All this would have been familiar to Wright J. Shortly before he gave judgment in Wilkinson v Downton he had been summoned with other judges to give his opinion to the House of Lords in the famous case of Allen v Flood [1898] AC 1.
+He delivered his judgment in Wilkinson v Downton on 8 May 1897 and his opinion in Allen v Flood on 3 June 1897.
+In his opinion in Allen v Flood, at [1898] AC 63, he said that in circumstances where: there was not otherwise any wrong or injuria, it follows that there could not be malice in the ordinary legal sense of that term, as compendiously stating the wilful infringement of a legal right or breach of a legal duty without matter of legal justification or excuse: upon which may be cited Bromage v Prosser [and other authorities].
+These and other authorities show that in general wherever the term malice or maliciously forms part of a statement of a cause of action or of a crime, it imports not an inference of motive to be found by the jury, but a conclusion of law which follows on a finding that the defendant has violated a right and has done so knowingly, unless he shows some overriding justification.
+Lord Herschell said in his judgment in Allen v Flood at p 124: More than one of the learned judges who were summoned refers with approval to the definition of malice by Bayley J in the case of Bromage v Prosser: Malice in common acceptation of the term means ill will against a person, but in its legal sense it means a wrongful act done intentionally without just cause or excuse.
+It will be observed that this definition eliminates motive altogether.
+It is interesting to compare and contrast Wright Js opinion in Allen v Flood with his judgment in Wilkinson v Downton.
+In his opinion in Allen v Flood Wright J made the point (as the House of Lords had held in Mayor of Bradford v Pickles) that if the defendants conduct did not interfere with any right of the plaintiff, malice in its popular meaning would not be enough to create a wrong or injuria.
+But in Wilkinson v Downton he treated the defendants wilfulness in telling a deliberate falsehood as an element of the injuria.
+The two approaches were not incompatible, for it is perfectly possible for the law to recognise an interest deserving some form of legal protection, but to require an appropriate degree of fault for an interference with it to constitute a legal injuria; the appropriate fault element may vary, typically between negligence and intention (although they are not the only possibilities); and the measure of protection provided by the law may vary as between different types of interest (be it a persons property, trade or personal safety).
+In Wilkinson v Downton Wright J identified the plaintiffs protected interest as her right to personal safety.
+There may be good reasons of social policy for the law to treat a person who deliberately does something which causes another to suffer physical or psychological injury or illness by telling them a false story (Wilkinson v Downton) more harshly than one who carelessly passes on false information.
+In the passage cited above from his opinion in Allen v Flood, Wright J referred to cases where malice forms part of a statement of a cause of action or of a crime.
+In relation to the criminal law, Professor Mark Lunney has drawn attention in an illuminating article, Practical joking and its penalty: Wilkinson v Downton in context (2002) 10 Tort Law Review 168, 178, to the decision of the Court of Crown Cases Reserved in R v Martin (1881) 8 QBD 54.
+The defendant caused panic in a theatre by barricading an exit door and extinguishing the gas lighting.
+In the resulting confusion several people were seriously injured.
+His conduct was intended as a prank, but any sane person would have realised that it was dangerous.
+The court upheld his conviction for unlawfully and maliciously inflicting grievous bodily harm, contrary to section 20 of the Offences Against the Person Act 1861.
+Lord Coleridge CJ said (at p 58): The prisoner must be taken to have intended the natural consequences of that which he did.
+He acted unlawfully and maliciously, not that he had any personal malice against the particular individuals injured, but in the sense of doing an unlawful act calculated to injure Stephen J said (also at p 58) that: if the prisoner did that which he did as a mere piece of foolish mischief unlawfully and without excuse, he did it wilfully, that is, maliciously, within the meaning of the statute.
+There is a striking parallel between the language and reasoning in R v Martin and in Wilkinson v Downton.
+Wright Js proposition that the injuria was in law malicious, despite the absence of any malicious purpose or motive of spite contained a clear echo of the criminal law.
+Historically the doctrine of imputed intention, that is to say that a person is to be taken as a matter of law to intend the natural and probable consequences of his acts, survived in the criminal law as late as the decision of the House of Lords in DPP v Smith [1961] AC 290.
+The decision surprised most criminal lawyers and was described by Professor Glanville Williams in his Textbook of the Criminal Law, (1st ed) (1978), p 61, as the most criticised judgment ever to be delivered by an English court.
+The doctrine was abolished by section 8 of the Criminal Justice Act 1967.
+This states: A court or jury, in determining whether a person has committed an offence, (a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but (b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.
+The final matter which Wright J addressed in his judgment in Wilkinson v Downton was whether the effect on Mrs Wilkinson of the report about her husband was, to use the ordinary phrase, too remote to be regarded in law as a consequence for which the defendant is answerable.
+Having expressed the view that it was difficult to imagine that such a report could fail to produce grave effects, unsurprisingly he said that apart from authority he would hold that it was not too remote.
+He then considered two authorities advanced for the proposition that illness through mental shock is a too remote or unnatural consequence of an injuria to entitle the plaintiff to recover in a case where damage is a necessary part of the cause of action: Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222 and Allsop v Allsop (1860) 5 H & N 534, approved by the House of Lords in Lynch v Knight (1861) 9 HL Cas 577.
+In Victorian Railways Commissioners v Coultas the plaintiff narrowly escaped serious injury at a level crossing.
+She was a passenger in a buggy driven by her brother.
+The gate keeper negligently opened the gates for them to cross when a train was approaching.
+There was no collision, but the plaintiff was found by a jury to have suffered illness as a result of the shock of seeing the train approaching and thinking that they were going to be killed.
+The Privy Council held that mere sudden terror unaccompanied by actual physical injury could not in such circumstances be considered a consequence which in the ordinary course would flow from the negligence of the gate keeper.
+Wright J declined to follow that authority.
+He observed that it had been doubted by the Court of Appeal (Pugh v London, Brighton and South Coast Railway Co [1896] 2 QB 248, 250, per Lord Esher MR) and had been rejected in Ireland (Bell v Great Northern Railway Co of Ireland (1890) 26 LR Ir 428, per Palles CB) and by the Supreme Court of New York (Mitchell v Rochester Railway Co (1896) 151 NY Rep 107, cited by Pollock).
+He did not go further and express the view that it was wrong, but it was unnecessary for him to do so, for he also described the case as not in point since there was not in that case any element of wilful wrong.
+Allsop v Allsop was a case of illness allegedly caused by a slanderous imputation of unchastity to a married woman.
+The woman heard the slander at third hand.
+It was held that the woman could not claim special damages for her illness in an action for slander against the originator of the slander.
+Wright J took a narrow view of the case as an authority on the type of damages recoverable in an action for slander.
+He said that to adopt it as a rule of general application that illness resulting from a false statement could never give rise to a claim for damages would be difficult or impossible to defend.
+Wright Js essential reasoning is clear, once the terms that he used are properly understood.
+He did not attempt to define physical harm of a psychiatric nature, but on the facts it was unnecessary for him to say more than he did.
+We have analysed his reasoning at some length because of the uncertainty to which it has given rise.
+Subsequent case law
+Wilkinson v Downton has been a source of much discussion and debate in legal textbooks and academic articles but seldom invoked in practice.
+This may be due to the development of the law of negligence in the area of recognised illness resulting from nervous shock.
+But a distinctive feature of the present case is that the courts below have held that there is no arguable case against the father in negligence (applying Barrett v Enfield London Borough Council [2001] 2 AC 550), and the claimant has therefore been constrained to rely on Wilkinson v Downton.
+Wilkinson v Downton was considered by the Divisional Court (Kennedy and Phillimore JJ) in Dulieu v White & Sons [1901] 2 KB 669.
+The plaintiff was working behind the bar at the Bonner Arms in Bethnal Green when an employee of the defendant negligently drove a horse drawn van into the room where she was.
+She was pregnant at the time and claimed damages for illness allegedly resulting from her severe shock.
+The defendant pleaded that the damages claimed were too remote.
+The issue came before the Divisional Court on a demurrer.
+The court rejected the defence and declined to follow Victorian Railways Commissioners v Coultas.
+The judges observed that the decision of the Privy Council was entitled to great respect but was no more binding on the court than it was on the Exchequer Division in Ireland.
+Kennedy J put to one side cases of wilful wrong doing, such as Wilkinson v Downton, as perhaps involving special considerations.
+In cases of negligence, he said that he was inclined to limit liability to injury from shock arising from a reasonable fear of immediate personal injury to oneself.
+Phillimore J, at p 683, said that he agreed with the decision of Wright J in Wilkinson v Downton that everyone has a right to his personal safety, and that it is a tort to destroy this safety by wilfully false statements and thereby to cause a physical injury to the sufferer.
+From that and other authorities he drew the principle that terror wrongfully induced and inducing physical mischief gives a cause of action.
+Wilkinson v Downton was approved by the Court of Appeal in Janvier v Sweeney [1919] 2 KB 316.
+The plaintiff was a French woman engaged to a German who was interned in the Isle of Man during World War 1.
+She lived as the paid companion of another woman who had a house in Mayfair.
+The defendants were an ex police officer who ran a private detective agency and his assistant.
+The first defendant wanted to inspect surreptitiously some letters written to the plaintiffs employer.
+In July 1917 he sent his assistant to see the plaintiff and trick her into cooperating by pretending that he was a police officer and that she was suspected of corresponding with a German spy.
+She claimed that this caused her to suffer severe shock resulting in a period of nervous illness.
+She sued for damages and won.
+On the appeal it was conceded that the threatening conduct found by the jury would amount to an actionable wrong if damage which the law recognised could be shown to have flowed directly from it.
+But it was argued that the plaintiffs illness was too remote in law and that Wilkinson v Downton was wrongly decided.
+The court approved the reasoning of Wright J and the statement of Phillimore J in Dulieu v White that terror wrongfully induced and inducing physical mischief gives a cause of action.
+Duke LJ described Janvier v Sweeney as a stronger case than Wilkinson v Downton because there was an intention to terrify the plaintiff for the purpose of attaining an unlawful object.
+There appear to have been no reported cases in this country on Wilkinson v Downton for the next 70 years or so.
+In the last 25 years it has had a modest resurgence in the context of harassment: Khorasandjian v Bush [1993] QB 727; Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721, [2003] 3 All ER 932; Wainwright v Home Office [2001] EWCA Civ 2081, [2002] QB 1334 (CA), [2003] UKHL 53, [2004] 2 AC 406 (HL).
+In Khorasandjian v Bush the plaintiff obtained an injunction, in reliance on Wilkinson v Downton and Janvier v Sweeney, to prevent a former partner from making threatening phone calls.
+Dillon LJ (with whom Rose LJ agreed) described those authorities as establishing that false words or verbal threats calculated to cause, uttered with the knowledge that they are likely to cause, and actually causing physical injury to the person to whom they are uttered are actionable (p 735). (This was a direct quotation from the headnote in Janvier v Sweeney.) Dillon LJ interpreted injury in the sense of recognisable psychiatric illness with or without psychosomatic symptoms, as distinct from mere emotional distress (p 736).
+In Wong v Parkside Health NHS Trust the claimant sued her former employer for post traumatic stress resulting from alleged harassment at her place of work.
+Hale LJ, giving the judgment of the court, said that it followed from Wright Js formulation in Wilkinson v Downton that although the tort is commonly labelled intentional infliction of harm, it was not necessary to prove actual (subjective) intention to injure; it was sufficient to prove that the conduct was calculated to do so in the sense of being deliberate conduct which was likely in the nature of things to cause injury (para 10).
+As explained above, Hale LJ was correct that this was indeed the effect of Wright Js formulation, which the Court of Appeal endorsed in Janvier v Sweeney.
+Whether it should be endorsed by this court is a different question.
+Hale LJ also confirmed the view expressed in Khorasandjian v Bush that for liability to arise under Wilkinson v Downton there must be physical harm or recognised psychiatric illness.
+The interesting question is whether it should be sufficient to establish conduct intended to cause severe alarm or distress falling short of a recognised psychiatric illness but in fact causing the latter.
+This question was touched on in Wainwright v Home Office.
+In Wainwright v Home Office a young adult who suffered from cerebral palsy and severe arrested social and intellectual development was wrongly subjected by prison officers to a strip search, which was carried out in a particularly humiliating fashion.
+He was greatly distressed by the episode and was subsequently diagnosed as suffering post traumatic stress disorder.
+He claimed damages under Wilkinson v Downton.
+It was argued on his behalf that the ambit of harm covered by the tort should extend beyond cases of recognised physical or psychiatric injury and should include distress of the kind which was the natural consequence of the prison officers treatment of him.
+In the Court of Appeal Lord Woolf CJ said that he had no difficulty with the statement in Salmond & Heuston on Torts, (21st ed) (1996), p 215, that one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is liable for such emotional distress, provided that bodily harm results from it: [2002] QB 1334, para 49. (This statement was taken from the American Law Institute, Restatement of the Law, Torts, (2nd ed) (1965), section 46.) But the trial judge had not made any finding that there was such intention or recklessness, and for that reason Lord Woolf held that the claim failed.
+Buxton LJ agreed that the claim failed on the facts, but he disagreed with the formulation in Salmond & Heuston.
+He considered that the headnote in Janvier v Sweeney, adopted by Dillon LJ in Khorasandjian v Bush, came as close as it is possible to do to a general statement of the rule in Wilkinson v Downton (para 79).
+But if that was not correct, he held that the rule must be limited to Wright Js statement that the defendants act was so clearly likely to produce an effect of the kind that occurred that an intention to produce it should be imputed to him (objective recklessness).
+The reformulation in Khorasandjian v Bush required subjective recklessness as to the causation of physical injury in the sense of recognisable psychiatric distress.
+Intention or recklessness merely as to severe emotional distress, from which bodily harm happened to result, was not enough.
+Buxton LJ regarded the court in Wongs case as treating the two formulations as equivalent in their effect.
+In the House of Lords the principal judgment was given by Lord Hoffmann.
+His analysis of Wilkinson v Downton was that Wright J was prevented by the decision of the Privy Council in Victorian Railway Commissioners v Coultas from finding in negligence, and Wright J devised a concept of imputed intention which sailed as close to negligence as he felt that he could; that it was not entirely clear what he meant by finding that the defendant intended to cause injury; but that by the time of Janvier v Sweeney the law was able comfortably to accommodate the facts of Wilkinson v Downton, since the court in Dulieu v White had declined to follow Victorian Railway Commissioners v Coultas. (See paras 44, 37 and 39 to 40.)
+This interesting reconstruction shows the pitfalls of interpreting a decision more than a century earlier without a full understanding of jurisprudence and common legal terminology of the earlier period.
+The concept of imputed intention was certainly not a novel concept devised by Wright J to get around a perceived stumbling block in the law of negligence.
+The concept was in the mainstream of legal thinking at that time.
+Moreover there is no reason for supposing that Wright J would have felt obliged to follow the decision of the Privy Council unless he could find a means of distinguishing it.
+He pointed out that it had been doubted by the Court of Appeal, was inconsistent with a decision of the Court of Appeal in Ireland and had been criticised in the USA and by Pollock.
+Just as Kennedy and Phillimore JJ said in Dulieu v White that they were not bound by the decision of the Privy Council, Wright J would have known that he was not bound to follow it as a matter of precedent (and respect for it would have been reduced by the comments of the eminent judges, Lord Esher and Palles, CB, who had either doubted it or judged it to be wrong).
+There is no reason to suppose that Wright J was being artful when he described the Privy Councils decision as not in point because it did not involve wilful wrongdoing.
+His reasoning may seem unclear to modern readers, but it would not have been unclear to those familiar at the time with his use of the terms malicious, calculated and imputed.
+It is also incorrect to suggest that after Dulieu v White the law would have comfortably accommodated the facts of Wilkinson v Downton within the law of nervous shock caused by negligence.
+Kennedy Js judgment in Dulieu v White would have limited a cause of action in negligence for damages for nervous shock to cases in which the nervous shock resulted from fear for the plaintiffs own personal safety, which would not have included Mrs Wilkinsons case, since her fear was for her husband.
+This limitation was disapproved by a majority of the Court of Appeal in Hambrook v Stokes Brothers [1925] 1 KB 141 (Sargant LJ dissenting) and was finally put to rest in McLoughlin v OBrian [1983] 1 AC 410.
+In any event negligence and intent are very different fault elements and there are principled reasons for differentiating between the bases (and possible extent) of liability for causing personal injury in either case.
+Lord Hoffmann rejected the argument on behalf of Mr Wainwright that there should be liability under Wilkinson v Downton for distress, not amounting to recognised psychiatric injury, on the basis of imputed intent.
+He said at para 45: If one is going to draw a principled distinction which justifies abandoning the rule that damages for mere distress are not recoverable, imputed intention will not do.
+The defendant must actually have acted in a way which he knew to be unjustifiable and either intended to cause harm or at least acted without caring whether he caused harm or not.
+Lord Hoffmann said that he read Lord Woolfs judgment as suggesting a willingness to accept such a principle, but that the facts did not support it.
+As we read Lord Woolfs judgment, the proposition from Salmond & Heuston which he was willing to accept was slightly different.
+It was that damages should be recoverable only in cases where the claimant suffered recognised bodily or psychiatric injury (and not mere emotional distress), but that in order to be entitled to damages for such injury it should be sufficient to show that the injury resulted from severe emotional distress which was intentionally or recklessly caused by the defendants outrageous conduct.
+Lord Hoffmann was open to the idea that compensation should be available in cases where there was a genuine intention to cause distress, but he added a strong note of caution.
+He observed that in institutions and workplaces all over the country, people constantly say and do things with the intention of causing distress and humiliation to others.
+This, he said at para 46, shows lack of consideration and appalling manners but I am not sure that the right way to deal with it is always by litigation.
+He referred also to the Protection from Harassment Act 1997, which provides a remedy in damages for a course of conduct amounting to harassment.
+He observed that the requirement of a course of conduct showed that Parliament was conscious that it might not be in the public interest to allow the law to be set in motion for one boorish incident, and that it might be that any development of the common law should show similar caution (para 46).
+Lord Hoffmann concluded that Wilkinson v Downton as an authority did not provide a remedy for distress falling short of recognised psychiatric injury, and that in so far as there might be a remedy for distress (without psychiatric injury) intentionally caused, the necessary intention was not established (para 47).
+Other common law jurisdictions
+Most common law jurisdictions have adopted Wilkinson v Downton.
+In Australia it was cited with approval by the High Court in Bunyan v Jordan (1937) 57 CLR 1.
+Despite some later cases in which the courts have tended to treat it as subsumed within the law of negligence, Spigelman CJ in the New South Wales Court of Appeal treated it as an intentional tort in Nationwide News Pty Ltd v Naidu [2007] NSWCA 377, paras 71 72.
+It has also been followed in New Zealand (Stevenson v Basham [1922] NZLR 225; Bradley v Wingnut Films Ltd [1993] 1 NZLR 415), Ireland (Sullivan v Boylan [2013] IEHC 104) and Hong Kong (Wong Kwai Fun v Li Fung [1994] 1 HKC 549).
+In the USA and Canada there has been significant further development.
+The American Law Institutes Restatement of the Law: Torts (2nd ed) (1965), section 46(1) stated: One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. 45 states accepted this definition and others adopted a modified version of it. (See R Fraker, Reformulating Outrage: a critical analysis of the problematic tort of IEED (2008) 61 Vand L Rev 983.) In the Restatement (Third) of Torts: Liability for Physical and Emotional Harm (2012) the wording of section 46 is marginally different but the meaning is unchanged: An actor who by extreme and outrageous conduct intentionally or recklessly causes severe emotional harm to another is subject to liability for that emotional harm and, if the emotional harm causes bodily harm, also for the bodily harm.
+The commentary to the current version states: The outrage tort originated as a catchall to permit recovery in the narrow instance when an actors conduct exceeded all permissible bounds of a civilized society but an existing tort claim was unavailable.
+This tort potentially encompasses a broad swath of behaviour and can easily, but often inappropriately, be added as a supplement to a suit in which the gravamen is another tort or a statutory violation.
+The intent requirement is satisfied when an actor knows that conduct is substantially certain to cause harm.
+Because emotional harm is often a predictable outcome of otherwise legitimate conduct, such as terminating an employee, liability for this tort could be expansive.
+Courts have played an especially critical role in cabining this tort by requiring extreme and outrageous conduct and severe emotional harm.
+A great deal of conduct may cause emotional harm, but the requisite conduct for this claim extreme and outrageous describes a very small slice of human behaviour.
+The requirement that the resulting harm be severe further limits claims.
+These limits are essential in preventing this tort from being so broad as to intrude on important countervailing policies, while permitting its judicious use for the occasions when it is appropriate.
+In Canada it is settled law that The tort of intentional infliction of mental distress or shock has three elements: (1) an act or statement that is extreme, flagrant or outrageous; (2) the act or statement is calculated to produce harm; and (3) the act or statement causes harm (High Parklane Consulting Inc v Lewis (2007) Can LII 410, para 31, per Perell J).
+This three limbed test is derived from a line of earlier authorities including particularly the decision of McLachlin J, sitting as she then was in the British Columbia Supreme Court, in Rahemtulla v Vanfed Credit Union [1984] 3 WWR 296.
+In that case the plaintiff was harassed at work, falsely accused of theft in threatening circumstances and summarily dismissed without proper cause in a humiliating fashion.
+The defendant submitted that to be liable for wilful infliction of nervous shock its conduct must be outrageous.
+McLachlin J said, at para 52: This submission appears to be founded on the distinction drawn in American cases between mere insult, which is not actionable, and extreme and outrageous conduct which is: Linden: Canadian Tort Law (3rd ed) (1982), p 48.
+While this distinction appears not to have been expressly adopted in the Canadian and Commonwealth cases, the conduct considered in the leading authorities such as Wilkinson v Downton, and Janvier v Sweeney, was in fact flagrant and extreme.
+Moreover, it is difficult to accept that the courts should protect persons from every practical joke or unkind comment.
+McLachlin J said that assuming that only flagrant and extreme conduct inflicting mental suffering was actionable, the defendants conduct could be so described.
+She identified the two further ingredients of the tort as being: that the conduct was plainly calculated to produce some effect of the kind which was produced (quoting from Wright Js judgment in Wilkinson v Downton), and that the conduct produced provable illness.
+She found that the conduct was plainly calculated to cause profound distress because it was clearly foreseeable.
+Since that decision the courts have followed the approach of imputing the necessary intention where severe emotional distress was foreseeable (see Professor Denise Raumes chapter, The Role of Intention in the Tort in Wilkinson v Downton, in Emerging Issues in Tort Law).
+Analysis
+The order made by the Court of Appeal was novel in two respects.
+The material which the appellant was banned from publishing was not deceptive or intimidatory but autobiographical; and the ban was principally directed, not to the substance of the autobiographical material, but to the vivid form of language used to communicate it.
+The appeal therefore raises important questions about freedom of speech and about the nature and limits of liability under Wilkinson v Downton.
+In Wilkinson v Downton Wright J recognised that wilful infringement of the right to personal safety was a tort.
+It has three elements: a conduct element, a mental element and a consequence element.
+The issues in this case relate to the first and second elements.
+It is common ground that the consequence required for liability is physical harm or recognised psychiatric illness.
+In Wainwright v Home Office Lord Hoffmann discussed and left open (with expressions of caution) the question whether intentional causation of severe distress might be actionable, but no one in this case has suggested that it is.
+The conduct element requires words or conduct directed towards the claimant for which there is no justification or reasonable excuse, and the burden of proof is on the claimant.
+We are concerned in this case with the curtailment of freedom of speech, which gives rise to its own particular considerations.
+We agree with the approach of the Court of Appeal in regarding the tort as confined to those towards whom the relevant words or conduct were directed, but they may be a group.
+A person who shouts fire in a cinema, when there is no fire, is addressing himself to the audience.
+In the present case the Court of Appeal treated the publication of the book as conduct directed towards the claimant and considered that the question of justification had therefore to be judged vis vis him.
+In this respect we consider that they erred.
+The book is for a wide audience and the question of justification has to be considered accordingly, not in relation to the claimant in isolation.
+In point of fact, the fathers case is that although the book is dedicated to the claimant, he would not expect him to see it until he is much older.
+Arden LJ said that the father could not be heard to say that he did not intend the book to reach the child, since it was dedicated to him and some parts of it are addressed to him.
+We have only found one passage addressed to him, which is in the acknowledgments, but more fundamentally we do not understand why the appellant may not be heard to say that the book is not intended for his eyes at this stage of his life.
+Arden LJ also held that there could be no justification for the publication if it was likely to cause psychiatric harm to him.
+That approach excluded consideration of the wider question of justification based on the legitimate interest of the defendant in telling his story to the world at large in the way in which he wishes to tell it, and the corresponding interest of the public in hearing his story.
+When those factors are taken into account, as they must be, the only proper conclusion is that there is every justification for the publication.
+A person who has suffered in the way that the appellant has suffered, and has struggled to cope with the consequences of his suffering in the way that he has struggled, has the right to tell the world about it.
+And there is a corresponding public interest in others being able to listen to his life story in all its searing detail.
+Of course vulnerable children need to be protected as far as reasonably practicable from exposure to material which would harm them, but the right way of doing so is not to expand Wilkinson v Downton to ban the publication of a work of general interest.
+But in pointing out the general interest attaching to this publication, we do not mean to suggest that there needs to be some identifiable general interest in the subject matter of a publication for it to be justified within the meaning of Wilkinson v Downton.
+Freedom to report the truth is a basic right to which the law gives a very high level of protection. (See, for example, Napier v Pressdram Ltd [2009] EWCA Civ 443, [2010] 1 WLR 934, para 42.) It is difficult to envisage any circumstances in which speech which is not deceptive, threatening or possibly abusive, could give rise to liability in tort for wilful infringement of anothers right to personal safety.
+The right to report the truth is justification in itself.
+That is not to say that the right of disclosure is absolute, for a person may owe a duty to treat information as private or confidential.
+But there is no general law prohibiting the publication of facts which will cause distress to another, even if that is the persons intention.
+The question whether (and, if so, in what circumstances) liability under Wilkinson v Downton might arise from words which are not deceptive or threatening, but are abusive, has not so far arisen and does not arise for consideration in this case.
+The Court of Appeal recognised that the appellant had a right to tell his story, but they held for the purposes of an interlocutory injunction that it was arguably unjustifiable for him to do so in graphic language.
+The injunction permits publication of the book only in a bowdlerised version.
+This presents problems both as a matter of principle and in the form of the injunction.
+As to the former, the books revelation of what it meant to the appellant to undergo his experience of abuse as a child, and how it has continued to affect him throughout his life, is communicated through the brutal language which he uses.
+His writing contains dark descriptions of emotional hell, self hatred and rage, as can be seen in the extracts which we have set out.
+The reader gains an insight into his pain but also his resilience and achievements.
+To lighten the darkness would reduce its effect.
+The court has taken editorial control over the manner in which the appellants story is expressed.
+A right to convey information to the public carries with it a right to choose the language in which it is expressed in order to convey the information most effectively. (See Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457, para 59, and In re Guardian News and Media Ltd [2010] UKSC 1, [2010] 2 AC 697, para 63)
+The problem with the form of the injunction is that Schedule 2 defines the information which it is forbidden to publish not only by reference to its substantive content, but also by the descriptive quality of being graphic.
+What is sufficiently graphic to fall within the ban is a matter of impression.
+The amplification of graphic in the courts supplementary judgment as meaning seriously liable to being understood by a child as vividly descriptive so as to be disturbing similarly lacks the clarity and certainty which an injunction properly requires.
+Any injunction must be framed in terms sufficiently specific to leave no uncertainty about what the affected person is or is not allowed to do.
+The principle has been stated in many cases and nowhere more clearly than by Lord Nicholls in Attorney General v Punch Ltd [2002] UKHL 50, [2003] 1 AC 1046 at para 35: An interlocutory injunction, like any other injunction, must be expressed in terms which are clear and certain.
+The injunction must define precisely what acts are prohibited.
+The court must ensure that the language of its order makes plain what is permitted and what is prohibited.
+This is a well established, soundly based principle.
+A person should not be put at risk of being in contempt of court by an ambiguous prohibition, or a prohibition the scope of which is obviously open to dispute.
+Our conclusion that the publication of the appellants book is not within the scope of the conduct element of the tort is enough to decide this case.
+However, the issue of the mental element required for the tort has been argued before us and it is right that we should address it.
+The Court of Appeal found that the necessary intention could be imputed to the appellant.
+The court cannot be criticised for doing so, since it was bound by previous decisions of the court which upheld that approach (in particular, Janvier v Sweeney and Wong v Parkside Health NHS Trust).
+There is a critical difference, not always recognised in the authorities, between imputing the existence of an intention as a matter of law and inferring the existence of an intention as a matter of fact.
+Imputation of an intention by operation of a rule of law is a vestige of a previous age and has no proper role in the modern law of tort.
+It is unsound in principle.
+It was abolished in the criminal law nearly 50 years ago and its continued survival in the tort of wilful infringement of the right to personal safety is unjustifiable.
+It required the intervention of Parliament to expunge it from the criminal law, but that was only because of the retrograde decision in DPP v Smith.
+The doctrine was created by the courts and it is high time now for this court to declare its demise.
+The abolition of imputed intent clears the way to proper consideration of two important questions about the mental element of this particular tort.
+First, where a recognised psychiatric illness is the product of severe mental or emotional distress, a) is it necessary that the defendant should have intended to cause illness or b) is it sufficient that he intended to cause severe distress which in fact results in recognisable illness? Option b) is close to the version stated by Salmond & Heuston which attracted Lord Woolf in Wainwright v Home Office.
+Secondly, is recklessness sufficient and, if so, how is recklessness to be defined for this purpose? Recklessness is a word capable of different shades of meaning.
+In everyday usage it may include thoughtlessness about the likely consequences in circumstances where there is an obvious high risk, or in other words gross negligence.
+In R v G [2003] UKHL 50, [2004] 1 AC 1034, the House of Lords construed recklessly in the Criminal Damage Act 1971 as meaning that A person acts recklessly with respect to a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk.
+The House of Lords based its interpretation on the definition proposed by the Law Commission in clause 18(c) of the Criminal Code Bill annexed to its Report on Criminal Law: A Criminal Code for England and Wales and Draft Criminal Code Bill, Vol 1 (Law Com No 177, 1989).
+A similar definition of recklessness was included in a draft Bill for reforming the law of offences against the person, which the Government published in 1998 but did not take forward.
+The Law Commission has repeated its proposal in a scoping consultation paper on Reform of Offences against the Person (LCCP 217, 2015).
+The exact wording of its proposed definition is: A person acts recklessly with respect to a result if he is aware of a risk that it will occur and it is unreasonable to take that risk having regard to the circumstances as he knows or believes them to be.
+In thinking about these questions it is pertinent to consider the practical implications.
+Suppose that a hostage taker demands money from the family of the hostage (H) for his safe release, or that a blackmailer threatens harm to a person unless the family of the victim (V) meets his demands.
+The wife or parent of H or V suffers severe distress causing them to develop a recognised psychiatric illness.
+We doubt that anyone would dispute that in those circumstances the hostage taker or blackmailer ought to be held liable for the consequences of his evil conduct.
+There would be no difficulty in inferring as a matter of fact that he intended to cause severe distress to the claimant; it was the means of trying to achieve his demand.
+But the wrongdoer may not have had the intention to cause psychiatric illness, and he may well have given no thought to its likelihood.
+Compare that scenario with an example at the other end of the spectrum.
+The defendant has a dispute with his neighbour.
+Tempers become flared and he makes a deliberately insulting remark.
+He intends it to be upsetting, but he does not anticipate or intend that the neighbour will suffer severe emotional distress.
+Unfortunately the episode and in particular the insult have that effect, and the distress leads to a recognised form of psychiatric illness.
+It would be disproportionate to hold the defendant liable when he never intended to cause the neighbour to be seriously upset.
+Our answer to the first question is that of option (b) (para 83 above).
+Our answer to the second question is not to include recklessness in the definition of the mental element.
+To hold that the necessary mental element is intention to cause physical harm or severe mental or emotional distress strikes a just balance.
+It would lead to liability in the examples in para 85 but not in the example in para 86.
+It means that a person who actually intends to cause another to suffer severe mental or emotional distress (which should not be understated) bears the risk of legal liability if the deliberately inflicted severe distress causes the other to suffer a recognised psychiatric illness.
+A loose analogy may be drawn with the egg shell skull doctrine, which has an established place in the law of tort.
+This formulation of the mental element is preferable to including recklessness as an alternative to intention.
+Recklessness was not a term used in Wilkinson v Downton or Janvier v Sweeney and it presents problems of definition.
+The Law Commissions definition would be clear, but it would not cover the example of the hostage taker or the blackmailer, because it would require proof of actual foresight of the risk of the claimant suffering psychiatric illness.
+It would be possible to limit liability for the tort to cases in which the defendants conduct was extreme, flagrant or outrageous, as in Canada.
+But this argument has not so far been advanced in this country, and, although Arden LJ adverted to it as a possibility, the appellant has not sought to pursue it.
+We are inclined to the view, which is necessarily obiter, that the tort is sufficiently contained by the combination of a) the conduct element requiring words or conduct directed at the claimant for which there is no justification or excuse, b) the mental element requiring an intention to cause at least severe mental or emotional distress, and c) the consequence element requiring physical harm or recognised psychiatric illness.
+In the present case there is no basis for supposing that the appellant has an actual intention to cause psychiatric harm or severe mental or emotional distress to the claimant.
+We conclude that there is no arguable case that the publication of the book would constitute the requisite conduct element of the tort or that the appellant has the requisite mental element.
+On both grounds the appeal must be allowed and the order of Bean J restored.
+LORD NEUBERGER: (with whom Lord Wilson agrees)
+I agree that this appeal should be allowed for the reasons given by Lady Hale and Lord Toulson.
+Because the issue involved is of importance and could raise some points of difficulty in other cases, I add some remarks of my own.
+There are various familiar circumstances in which a defendant can be liable to a claimant as a result of a statement made by the defendant.
+Examples include a statement which is unlawful statutorily, a breach of contract, defamatory, a breach of duty because of a pre existing relationship, and a statement which amounts to misuse of information or a breach of the claimants confidence, copyright, or right to privacy.
+This appeal concerns the circumstances in which a claimant has a cause of action for distress or psychiatric illness which he suffers as a result of a statement made by the defendant, where the statement would not otherwise give rise to a claim.
+It is a fundamental issue, and, particularly given the importance attached to both freedom of expression and human dignity, it can raise questions which are difficult to resolve.
+Having said that, the answer to the question whether there is a valid claim in the present case appears to me to be quite plain.
+The facts of this case are fully set out by Lady Hale and Lord Toulson in paras 1 30 above.
+I agree that the interlocutory injunction granted by the Court of Appeal was flawed for two reasons.
+First, there should have been no injunction at all, because the claimants claim to restrain publication of the defendants book had no prospects of success.
+Secondly, the terms of the injunction were flawed both conceptually and procedurally.
+The claimants claim had no prospects of success because publication of the defendants book would plainly not have given rise to a cause of action in his favour.
+It is true that the claimant is the defendants son and is psychologically vulnerable, and it was argued in the Court of Appeal that this relationship gave rise to a duty of care on the part of the defendant which publication of the book would breach.
+However, as the Court of Appeal rightly held, that argument cannot assist the claimant in this case see the reasoning of Arden LJ at [2014] EWCA Civ 1277, paras 48 57, upholding the conclusion of Bean J at first instance on this aspect.
+There is, rightly, no appeal on that ground.
+Once that ground is disposed of, it appears to me that the books contents simply have nothing to do with the claimant, at least from a legal perspective.
+The book describes the defendants searing experiences of sexual abuse as a boy and its consequential effects.
+It is true, that the book is dedicated to the claimant and it expresses fears about the claimant being at risk of abuse as a child, but the furthest that that point could go would be to negative the idea that the defendant could have been unaware of the fact that the contents of the book would come to the claimants attention at some point (which was unsurprisingly not in issue anyway).
+While I agree that many people would regard the book as being in some respects in the public interest, it is not necessary to decide this appeal on that ground.
+Unless it is necessary to do so, I am unenthusiastic about deciding whether a book, or any other work, should be published by reference to a judges assessment of the importance of the publication to the public or even to the writer.
+In the present case, I do not consider that it would make any difference if the experiences which the defendant describes could be shown to have been invented, or if the book had been written as a novel by someone who had not been sexually abused.
+It is true that the book contained material which some people might find offensive, in terms of what was described and how it was expressed, but free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence see Redmond Bate v Director of Public Prosecutions (1999) 7 BHRC 375, para 20, per Sedley LJ.
+As he memorably added, [f]reedom only to speak inoffensively is not worth having.
+Quite apart from this, it would, I think, be an inappropriate restriction on freedom of expression, an unacceptable form of judicial censorship, if a court could restrain publication of a book written by a defendant, whose contents could otherwise be freely promulgated, only refer in general and unobjectionable terms to the claimant, and are neither intended nor expected by the defendant to harm the claimant, simply because the claimant might suffer psychological harm if he got to read it (or extracts from it).
+Whatever the nature and ingredients of the tort whose origin can be traced to Wilkinson v Downton [1897] 2 QB 57, it therefore cannot possibly apply in this case.
+And that, at least in a narrow sense, is in my view the beginning and the end of this case.
+As to the terms of the injunction, the Court of Appeal accepted that the defendant should be entitled to describe the ordeals which he had undergone.
+However, they decided that he could not publish certain specified passages in his book or any other accounts of his ordeals in so far as those accounts were graphic, a description which was explained by Arden LJ as meaning seriously liable to being understood by a child as vividly descriptive so as to be disturbing.
+There are two problems with such a form of injunction.
+First, it treats the terms in which events are described in the book as detachable from the inclusion of the events themselves.
+Freedom of expression extends not merely to what is said but also to how it is said.
+Whether a communication is made orally or in writing, the manner or style in which it is expressed can have a very substantial effect on what is actually conveyed to the listener or reader.
+One cannot realistically detach style from content in law any more than one can do so in literature or linguistic philosophy.
+I agree with what is said in para 78 above in this connection.
+The second problem with the form of injunction granted by the Court of Appeal is that it is insufficiently specific, and in that connection there is nothing which I wish to add to what is said in para 79 above.
+It would not, however, be right to leave matters there, in the light of the decision in Wilkinson (on which the Court of Appeal relied) and the subsequent cases in this and other common law jurisdictions, discussed by Lady Hale and Lord Toulson in paras 51 71 above.
+In Wilkinson, the defendant was held liable to a plaintiff for severe mental distress caused to her by an untrue statement, which was misconceivedly intended as a cruel joke, namely that her husband had suffered serious injuries in an accident.
+The way in which the trial judge, Wright J, expressed himself in his judgment must, like all statements, be seen in its context, and that context is illuminatingly explained in paras 34 50 above.
+Given that there was a valid claim in that case and there is none in this case, it raises the question as to the characterisation of the tort in question, which could perhaps be characterised as the tort of making distressing statements.
+The tort has been identified as terror wrongfully induced and inducing physical mischief (see Dulieu v White & Sons [1901] 2 KB 669, 683 and Janvier v Sweeney [1919] 2 KB 316, 322).
+However, I am not happy with that characterisation, as it lumps together physical actions and statements, it begs the question by the use of the word wrongful, and it is limited to terror, and, as explained below, I would leave open whether physical mischief is a necessary ingredient.
+While I would certainly accept that an action not otherwise tortious which causes a claimant distress could give rise to a cause of action, I would be reluctant to decide definitively that liability for distressing actions and distressing words should be subject to the same rules, at this stage at any rate.
+There is of course a substantial overlap between words and actions: after all, words can threaten or promise actions, and freedom of expression can in some respects extend to actions as well as words.
+And, in the light of what I say below, it might be the case that the tort of making distressing statements is to be limited to statements which are the verbal equivalent of physical assaults.
+However, there are relevant differences between words and actions.
+The reasons for a difference in legal treatment between liability for actions and liability for words were identified by Lord Reid, Lord Devlin and Lord Pearce in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, 482 483, 516 519 and 534 respectively.
+In order to decide when a statement, which is not otherwise tortious, and which causes a claimant distress, should be capable of founding a cause of action, it is necessary to bear in mind five points, some of which are in tension.
+First, that there must be circumstances in which such a cause of action should exist: the facts of Wilkinson and Janvier make that point good.
+Secondly, given the importance of freedom of expression, which includes the need to avoid constraining ordinary (even much offensive) discourse, it is vital that the boundaries of the cause of action are relatively narrow.
+Thirdly, because of the importance of legal certainty, particularly in the area of what people can say, the tort should be defined as clearly as possible.
+Fourthly, in the light of the almost literally infinite permutations of possible human interactions, it is realistic to proceed on the basis that it may well be that no set of parameters can be devised which would cater for absolutely every possibility.
+Fifthly, given all these factors, there will almost inevitably be aspects of the parameters on which it would be wrong to express a concluded view, and to let the law develop in a characteristic common law way, namely on a case by case basis.
+In other words, the tort exists, and should be defined narrowly and as clearly as possible, but it would be dangerous to say categorically that each ingredient of the tort must always be present.
+Nonetheless, it seems to me that it is worth identifying what are, at least normally, and hopefully almost always, the essential ingredients of the tort.
+Wilkinson and Janvier were cases where the statement made by the defendant was untrue, gratuitous, intended to distress the plaintiff, directed at the plaintiff, and caused the plaintiff serious distress amounting to psychiatric illness.
+Clearly, where all these ingredients are present, the tort would be established, but the question is whether they are all strictly required.
+First, if it is possible at all, it will be a very rare case where a statement which is not untrue could give rise to a claim, save, perhaps where the statement was a threat or (possibly) an insult.
+Sometimes, a threat will be unlawful anyway: for instance a threat of immediate assault or a blackmail.
+In some cases there is statutory liability for an offensive statement.
+Thus, a statement may be covered by the Protection from Harassment Act 1997 (as amended) which provides for both civil remedies (section 3) and criminal liability (sections 2, 2A, 4, 4A).
+Similarly Part IV of the Family Law Act 1996 (as amended) allows a court to make an order to protect an individual from molestation, and provides that the breach of such an order is a criminal offence.
+Harassment requires a course of action, so I do not think that a one off statement could be caught by the 1997 Act.
+Section 4A of the Public Order Act 1986 (added by the Public Order Act 1994) provides that it is an offence to use threatening, abusive or insulting words or behaviour which causes harassment, alarm or distress and which is intended to have that effect.
+However, section 4A only creates a criminal offence, and it does not apply where the words are used by a person inside a dwelling and the person who is harassed, alarmed or distressed is also inside that or another dwelling.
+Further, section 1 of the Malicious Communications Act 1988 criminalises communications which are grossly offensive, a threat or known to be false if at least one of the purposes is to cause distress or anxiety, unless the sender had reasonable grounds, but it does not appear to give rise to civil liability.
+And section 127 of the Communications Act 2003 criminalises electronic sending of grossly offensive or menacing messages, or false messages for the purpose of causing annoyance, inconvenience or needless anxiety to another, but it is limited to electronic communications and appears to give rise to no civil liability.
+I do not consider that this is a case where it can be said that Parliament has intervened in such terms that the common law should, as it were, keep out.
+After all, Parliament has not legislated so as to cover, or to suggest disapproval of, claims in tort based on one off distressing statements as in Wilkinson and Janvier.
+On the contrary, the last 20 years have seen legislation which actually suggests that the legislature considers it appropriate for the courts to be involved, albeit in relatively limited and extreme cases, where words are used offensively.
+This does not, of course, mean that every untruthful statement, threat or insult could give rise to a claim.
+Because of the importance of freedom of expression and of the law not impeding ordinary discourse, there must be a second and demanding requirement which has to be satisfied before liability can attach to an untruth, an insult or a threat which was intended to, and did, cause distress, but would not otherwise be civilly actionable.
+Lady Hale and Lord Toulson have suggested a test of justification or reasonable excuse in paras 74 76 above, and I have used the adjective gratuitous in para 106 above.
+Neither description is ideal as it can be said to be question begging (virtually every threat, untruth or insult can be said to be unjustified, inexcusable and gratuitous), and it involves a subjective assessment.
+There may be something to be said for the adjectives outrageous, flagrant or extreme, which seem to have been applied by the US and Canadian courts (discussed in paras 69 71 above).
+Of course, even with a test of outrageousness a subjective judgment will be involved to some extent, but that cannot be avoided.
+As mentioned, it seems to me to be vital that the tort does not interfere with the give and take of ordinary human discourse (including unpleasant, heated arguments, whether in domestic, social, business or other contexts, sometimes involving the trading of insults or threats), or with normal, including trenchant, journalism and other writing.
+Inevitably, whether a particular statement is gratuitous must depend on the context.
+An unprompted statement made simply because the defendant wanted to say it or because he was inspired by malice, as in Janvier, or something very close to malice, as in Wilkinson, may be different from the same statement made in the course of a heated argument, especially if provoked by a series of wounding statements by the defendant.
+Similarly, it would be wrong for this tort to be invoked to justify relief against a polemic op ed newspaper article or a strongly worded and antipathetic biography, save in the most unusual circumstances.
+The tort should not somehow be used to extend or supplement the law of defamation.
+Thirdly, I consider that there must be an intention on the part of the defendant to cause the claimant distress.
+This requirement might seem at first sight to be too narrow, not least because it might appear that it would not have caught the defendant in Wilkinson: he merely intended his cruel statement as a joke.
+However, the fact that a statement is intended to be a joke is not inconsistent with the notion that it was intended to upset.
+How, it might be asked rhetorically, could Mr Downton not have intended to cause the apparently happily married Mrs Wilkinson significant distress by falsely telling her that her husband had been very seriously injured? That was the very purpose of the so called joke.
+There are statements (and indeed actions) whose consequences or potential consequences are so obvious that the perpetrator cannot realistically say that those consequences were unintended.
+Intentionality may seem to be a fairly strict requirement, as it excludes not merely negligently harmful statements, but also recklessly harmful statements.
+However, in agreement with Lady Hale and Lord Toulson, I consider that recklessness is not enough.
+In truth, I doubt it would add much.
+Further, in practice, recklessness is a somewhat tricky concept.
+Quite apart from this, bearing in mind the importance of freedom of expression and of the law not sticking its nose into human discourse except where necessary, it appears to me that the line should be drawn at intentionality.
+I am inclined to think that distressing the claimant has to be the primary purpose, but I do not consider that it need be the sole purpose.
+The degree of distress which is actually intended must be significant, and not trivial, and it can amount to feelings such as despair, misery, terror, fear or even serious worry.
+But it plainly does not have to amount to a recognised psychiatric disease (even if such disease is an essential ingredient, as to which see below).
+It is, I think, hard to be more specific than that.
+Fourthly, the statement must, I think, be directed at the claimant in order to be tortious.
+In most cases this will add nothing to the requirements already mentioned.
+However, I would have thought that a statement which is aimed at upsetting a large group of addressees, without any particular individual (or relatively small group of individuals) in mind, should not be caught.
+Then there is the question as to whether a claimant can only bring an action if he suffers distress to a sufficient degree to amount to a recognised illness or condition (whether psychological or physiological assuming that the distinction is a valid one).
+Like Lord Hoffmann in Wainwright v Home Office [2003] UKHL 53, [2004] 2 AC 406, I consider that there is much to be said for the view that the class of potential claimants should not be limited to those who can establish that they suffered from a recognised psychiatric illness as a result of the actionable statement of the defendant.
+Such a limitation seems to have been imposed by Kennedy J at pp 672 673 in Dulieu, when he referred to terror which operates through parts of the physical organism to produce bodily illness.
+However, that was a case involving a negligent act, and, as already explained, I am unconvinced that it involved the same tort as Wilkinson, although it was relied on by Kennedy J.
+It would seem that the reasoning in Dulieu was consistent with the principle that damages for distress in negligence are only recoverable for a recognisable psychiatric illness and not merely for grief and sorrow, as Lord Denning MR put it in Hinz v Berry [1970] 2 QB 40, 42 43, an approach which was followed by Lord Bridge of Harwich in McLoughlin v O'Brian [1983] 1 AC 410, 437.
+This limitation appears to have been imposed in cases of negligence as a matter of policy, and it has been justified in a number of cases on the ground that grief and distress are part of normal life, whereas psychiatric illness is not see eg McLoughlin at p 431 per Lord Bridge and White v Chief Constable of South Yorkshire Police [1999] 2 AC 455, 465 per Lord Griffiths.
+The Australian High Court has justified the rule by reference to the undesirability of encouraging litigation see Tame v New South Wales (2002) 211 CLR 317, para 194 per Gummow and Kirby JJ.
+However, in some negligence cases, it appears that damages for distress falling short of psychiatric illness may be recoverable see the observations of Brooke LJ in Robinson v St Helens Metropolitan Borough Council [2002] EWCA Civ 1099, paras 36 37.
+And, as is pointed out in McGregor on Damages (19th ed) (2014), paras 5 012 and 5 013, injury to feelings is taken into account when assessing general damages in claims, by way of example, for assault, invasion of privacy, malicious prosecution and defamation.
+As I see it, therefore, there is plainly a powerful case for saying that, in relation to the instant tort, liability for distressing statements, where intent to cause distress is an essential ingredient, it should be enough for the claimant to establish that he suffered significant distress as a result of the defendants statement.
+It is not entirely easy to see why, if an intention to cause the claimant significant distress is an ingredient of the tort and is enough to establish the tort in principle, the claimant should have to establish that he suffered something more serious than significant distress before he can recover any compensation.
+Further, the narrow restrictions on the tort should ensure that it is rarely invoked anyway.
+In the light of article 10 of the European Convention on Human Rights, it is appropriate to consider the jurisprudence of the Strasbourg court.
+This is a case which involves a purely common law issue, but the common law should be generally consistent with the Convention and it would be arrogant to assume that there may be no assistance to be gained from the Strasbourg jurisprudence see Lord Reeds illuminating analysis in R (Osborn) v Parole Board [2013] UKSC 61, [2014] AC 1115, paras 56 63.
+In that connection, there have been a number of cases where the Strasbourg court has been called on to rule on the compatibility of a ruling of a national court or tribunal that an offensive statement was unlawful.
+A number of those decisions were summarised in R (Gaunt) v Office of Communications [2011] EWCA Civ 692, [2011] 1 WLR 2355, paras 25 30.
+They all involved statements made in public, but some of them involved statements which had been held unlawful because they were personally insulting.
+I do not think that these cases take matters much further for present purposes, other than to confirm the vital nature of freedom of expression, the consequent requirement to establish that there is a cause of action convincingly, the importance of taking into account the context, and the need for proportionality both in deciding whether there is a cause of action and in determining the sanction.
+The final point I should make is that this case has been argued in this court on the basis that the issue between the parties has to be resolved according to English law, rather than the law of the US, where the claimant resides.
+It may well be that that is right (as the Court of Appeal held), or that, even if United States law is in fact applicable, it is the same as our law.
+In all these circumstances, it seems to me clear, even at this interlocutory stage, that the claimants case plainly fails all but one of the requirements of the tort on which it is said to be based.
+While there is some (disputed) evidence that they could cause the claimant serious distress, the contents of the defendants book are not untrue, threatening or insulting, they are not gratuitous or unjustified, let alone outrageous, they are not directed at the claimant, and they are not intended to distress the claimant.
+Accordingly, I have no hesitation in agreeing that the appeal should be allowed, and the order of Bean J striking out the claim restored.
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+The wedding of the Duke and Duchess of Cambridge on 29 April 2011 attracted vast public interest nationally and internationally.
+Managing the crowds presented the Metropolitan Police with a big challenge.
+In giving the judgment of the Administrative Court, [2012] EWHC 1947 (Admin), Richards LJ explained the nature of the policing operation, its command structure and planning, in considerable detail.
+This was necessary because at the heart of the claims made against the police in these proceedings was a broad challenge that the planning and execution of the policing operation did not make proper allowance for the democratic rights of anti monarchist protestors to express their views in a peaceable way.
+For present purposes, the background and circumstances giving rise to the claims may be outlined more shortly.
+The police were aware that on the day of the wedding a large number of members of the Royal Family, foreign royalty and other heads of state would be moving around London and that thousands of citizens including children were expected to converge on central London to take part in the days celebrations.
+One month earlier, on 26 March 2011, a day of action organised by the TUC had been marred by the actions of outsiders who used the occasion to commit various offences of violence.
+There had been similar violent disruption of student protests in November and December 2010, including an attack on the Prince of Waless car.
+In the build up to the royal wedding, the police had intelligence that activities aimed at disrupting the celebrations were being planned through social websites.
+The threat level from international terrorism at the time was assessed as severe, meaning that an attempted attack was thought to be highly likely.
+Thousands of police officers were deployed across the metropolis.
+The strategic aims, as set out in briefing materials prepared by the Gold commander with overall responsibility for the safe policing of the event, included to provide a lawful and proportionate policing response to protest, balancing the needs and rights of protesters with those impacted by the protest and to maintain public order.
+The same aims were reflected in tactical operational plans prepared by subordinate commanders.
+The four 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.
+They were arrested in separate incidents at various places in central London on the grounds that their arrest was reasonably believed by the arresting officers to be necessary to prevent an imminent breach of the peace.
+They were taken to four different police stations and later released without charge, once the wedding was over and the police considered that the risk of a breach of the peace had passed.
+Their periods of custody ranged from about 2 hours to 5 hours.
+The power of the police, or any other citizen, to carry out an arrest to prevent an imminent breach of the peace is ancient, but it remains as relevant today as in times past.
+The leading domestic authorities on the subject are the decisions of the House of Lords in Albert v Lavin [1982] AC 546 and R (Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 AC 105.
+There are important safeguards for the citizen, in order to prevent breach of the peace powers from becoming a recipe for officious and unjustified intervention in other peoples affairs (in Lord Rodgers words in Laporte, at para 62).
+The essence of a breach of the peace is violence.
+The power to arrest to prevent a breach of the peace which has not yet occurred is confined to a situation in which the person making the arrest reasonably believes that a breach of the peace is likely to occur in the near future (quoting again from Lord Rodger in Laporte, at para 62).
+And even where that is so, there may be other ways of preventing its occurrence than by making an arrest; there is only a power of arrest if it is a necessary and proportionate response to the risk.
+The Administrative Court rejected the broad complaint that the police adopted an unlawful policy for the policing of the royal wedding.
+After close examination of the facts of the individual arrests, it also held that the arresting officers had good grounds to believe that the arrests were necessary in order to prevent the likelihood of an imminent breach of the peace.
+It dismissed as unrealistic the argument that lesser measures would have been adequate to meet the degree of risk.
+Continuous police supervision was not a feasible option, given the many demands on police resources.
+The claims that the police acted unlawfully as a matter of domestic law therefore failed.
+Article 5
+The appellants also alleged that their detention violated their rights under article 5 of the European Convention on Human Rights, and on this issue alone they were given permission to appeal to the Court of Appeal and subsequently to this court.
+The material parts of article 5 for present purposes are the following: 1.
+Everyone has the right to liberty and security of person.
+No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: the lawful arrest or detention of a person for non (b) compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected 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; 3.
+Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. 4.
+Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5.
+Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.
+Decision of the Administrative Court
+The Administrative Court interpreted the phrase effected for the purpose of bringing him before the competent legal authority in article 5.1(c) as limited in its application to the words immediately following it, that is, for the purpose of bringing the person concerned before the court on reasonable suspicion of having committed an offence, and not applying where the purpose of the arrest was to prevent the commission of an offence.
+The court considered that this was the more natural reading of the wording, and that the Strasbourg case law on the point was inconclusive.
+For the purposes of the Convention a breach of the peace counts as an offence, despite it not being classified as an offence under English law: Steel v United Kingdom (1998) 28 EHRR 603, paras 46 to 49.
+The Administrative Court therefore concluded that the arrests conformed with article 5.1(c).
+The police also relied on the wording of article 5.1(b).
+Richards LJ commented that that the wording seemed ill suited on its face to cover arrest and detention for the purpose of preventing a future, albeit imminent, breach of the peace, but that it was unnecessary for the court to decide the point and better not to do so: para 187.
+Decision of the Court of Appeal
+The Court of Appeal agreed with the decision of the Administrative Court in a judgment given by Maurice Kay LJ, [2014] 1 WLR 2152, but not with its reasoning.
+The Court of Appeal was strongly influenced by the judgment of the Strasbourg court in Ostendorf v Germany (2013) 34 BHRC 738, which post dated the decision of the Administrative Court.
+The Court of Appeal held that it was well established in the Strasbourg jurisprudence that the words for the purpose of bringing him before the competent legal authority govern all the limbs of article 5.1(c) and that English courts should accept that interpretation.
+However, it declined to follow the majority view in Ostendorf that article 5.1(c) was incapable of authorising purely preventive detention, notwithstanding the existence of good grounds to believe an offence to be imminent, and that the person concerned must be suspected of having already committed a criminal offence.
+On the facts, the Court of Appeal concluded that it was an irresistible inference that the officers who arrested and detained the [appellants] appreciated that, if only by reference to domestic law, the [appellants] could not be lawfully detained beyond the point at which it was reasonably practicable to take them before the magistrates court: para 85.
+The court also inferred that as things were in central London on the day of the royal wedding it would not have been practicable to take the appellants before a magistrates court before they were released, but that they would have been taken to court if the situation had deteriorated to the extent that it was necessary to continue their detention to a point in time when it would have been practicable to do so.
+The court therefore concluded that that the appellants were arrested and detained for the purpose of bringing [them] before the competent legal authority, if that were to become necessary, so as to prolong their detention on a lawful basis: para 86.
+As to article 5.1(b), the Court of Appeal observed that the decision of the majority in Ostendorf had strengthened the argument advanced by the police (para 90), but considered it unnecessary to reach a conclusion on that issue.
+The appellants argue that the Court of Appeal was wrong not to follow the interpretation of article 5.1(c) by the Strasbourg court in Ostendorf, and that the process of reasoning by which the Court of Appeal arrived at its finding that the appellants were detained for the purpose of bringing them before the court was artificial and contrived.
+They submit that it was plain from the evidence as a whole that the purpose of the appellants arrest and detention was purely preventive.
+They also submit that article 5.1(b) was not applicable even on the approach taken by the court in Ostendorf.
+The police argue that the Court of Appeal was right to hold that there was a contingent purpose to bring the appellants before the court sufficient to satisfy the requirements of article 5.1(c) and that the appellants detention was also justified under article 5.1(b).
+Strasbourg case law
+Lawless v Ireland (No 3) (1961) 1 EHRR 15 concerned the internment without trial of IRA members by the Irish government.
+The applicant was detained for five months, without being brought before a judge, under legislation which gave to ministers special powers of detention without trial, whenever the government published a proclamation that the powers were necessary to secure the preservation of peace and order.
+The government argued that such detention was permitted by the second limb of article 5.1(c), which was not qualified by the words for the purpose of bringing him before the competent legal authority and therefore was also not within article 5.3.
+The court rejected this argument, noting that in the French text there is a comma after the passage up to for the purpose of bringing him before the competent legal authority (en vue dtre conduit devant lautorit judiciaire comptente), meaning that this passage qualifies all the categories after the comma.
+The court also said (at para 14) that the governments interpretation would permit the arrest and detention of a person suspected of an intent to commit an offence for an unlimited period on the strength merely of an executive decision, and that this, with its implications of arbitrary power, would lead to conclusions repugnant to the fundamental principles of the Convention.
+I interpose that two linked points are important to note: the reference to the potential for unlimited detention without judicial oversight and the fundamental objectionableness of arbitrary detention.
+The court held that the expression effected for the purpose of bringing him before the competent legal authority qualified every category of arrest or detention referred to in article 5.1(c), and the clause therefore permitted deprivation of liberty only when such deprivation is effected for the purpose of bringing the person arrested or detained before the competent judicial authority, irrespective of whether such person is a person who is reasonably suspected of having committed an offence, or a person whom it is reasonably considered necessary to restrain from committing an offence, or a person whom it is reasonably considered necessary to restrain from absconding after having committed an offence.
+The court further held that the purpose of bringing the person before the court might, depending on the circumstances, be either for the purpose of examining the question of deprivation of liberty or for the purpose of deciding on the merits (para 14).
+In Brogan v United Kingdom (1988) 11 EHRR 117, the four applicants were arrested and detained under prevention of terrorism legislation on suspicion of being concerned in the commission, preparation or instigation of acts of terrorism.
+They were released without charge after periods between four and six days and without having been brought before a magistrate.
+The court held that in each case there had been a violation of article 5.3 but not article 5.1.
+The court accepted that there was an intention to bring them before a court if sufficient and usable evidence had been obtained during the police investigation following their arrest, and that this was sufficient to satisfy the requirement in article 5.1(c) that the detention was for the purpose of bringing them before the court.
+There was no reason to believe that the police investigation was not in good faith or that their detention was for any other reason than to further the investigation by confirming or dispelling the suspicions which grounded their arrest.
+In other words, the police were not required to intend to take the applicants to court in the event of there being insufficient evidence after investigation to proceed against them.
+In Jecius v Lithuania (2000) 35 EHRR 16, the applicant complained of violation of his article 5 rights in successive periods of detention.
+The first period of five weeks was under a broad provision of the criminal code which permitted preventive detention in connection with banditry, criminal association or terrorising a person.
+During that period no investigation was carried out and no charge was made.
+In holding that preventive detention of the kind found in that case was not permitted by article 5.1(c), the court stated that a person may be detained under that clause only in the context of criminal proceedings for the purpose of bringing him before the competent legal authority on suspicion of his having committed an offence (para 50).
+However, as the Court of Appeal observed in this case (para 61), that was plainly not a complete statement of article 5.1(c).
+Nicol and Selvanayagam v United Kingdom, (Application No 32213/96) 11 January 2001, provides an example of a case where the court recognised that article 5.1(c) embraces different sets of circumstances.
+The applicants took part in an anti fishing protest at an angling match on 28 May 1994.
+Their aim was to sabotage the match by throwing twigs in the water close to the anglers hooks so as to disturb the surface, while other protestors sounded horns to frighten the fish.
+When they refused to stop, they were arrested.
+The custody record gave the reason for their initial detention as to allow a period of calming, and to determine method of processing.
+They were later kept in custody in order to take them before the magistrates for the purpose of being bound over to keep the peace.
+The court found that their complaint under article 5.1 was manifestly unfounded.
+It said that their initial detention was to prevent them from committing an offence and their continued detention was for the purpose of bringing them before the court on suspicion of having committed an offence.
+Both the initial arrest and their subsequent detention were therefore compatible with article 5.1(c).
+Most recently, Ostendorf raised parallel issues to those in the present case.
+The applicant was known to the police as a suspected football hooligan and gang leader.
+He travelled by train from Bremen to Frankfurt to attend a match with 30 to 40 other fans, most of whom were known to the police and considered to be hooligans prepared to use violence.
+The group went under police surveillance to a pub.
+They were told that they would be escorted to the football ground and that any member leaving the group would be arrested.
+At the pub the applicant was seen talking to a member of a rival hooligan group.
+He remained in the pub when the rest of his group left and was discovered by the police hidden in a locked cubicle in the ladies bathroom.
+He gave no plausible explanation why he was there.
+The police reasonably concluded that he was trying to evade police surveillance and that he was planning violence.
+He was arrested under public security legislation which permitted the police to take a person into custody if necessary to prevent the imminent commission of a criminal or regulatory offence of considerable importance to the general public.
+He was taken to a police station and released one hour after the game finished, when it was considered that the risk of violence had passed.
+He complained that his arrest and detention violated his rights under article 5.
+The Strasbourg court (Fifth Section) unanimously rejected his complaint.
+The following paragraph in the leading judgment merits citation in full, not only because it states a central principle but also because it has a direct resonance in the present case: 88.
+The court is aware of the importance, in the German legal system, of preventive police custody in order to avert dangers to the life and limb of potential victims or significant material damage, in particular, in situations involving the policing of large groups of people during mass events It reiterates that article 5 cannot be interpreted in such a way as to make it impracticable for the police to fulfil their duties of maintaining order and protecting the public provided that they comply with the underlying principle of article 5, which is to protect the individual from arbitrariness (see Austin v UK (2012) 32 BHRC 618 at para 56).
+The court was divided on how to implement that principle.
+The majority held that the applicants detention was permitted under article 5.1(b) but not under article 5.1(c).
+Conversely, the minority were for holding that it was permitted under article 5.1(c) but not under article 5.1(b).
+As to article 5.1(c), the majority held (at paras 82 to 86) that the second part (when it is reasonably considered necessary to prevent his committing an offence) only covers pre trial detention, and not custody for preventive purposes without the person concerned being suspected of having already committed an offence.
+Moreover, it held that the purpose of bringing the person before a court must be for the purpose of trial, and not just for the purpose of determining the legality of his preventive detention.
+The majority sought to answer the governments argument that on this analysis the second part would add nothing to the first, saying that it was not superfluous since it could cover the detention of a person who had already committed preparatory acts which were themselves punishable in order to prevent him from going on to commit the full offence.
+However, that does not fully meet the point, for in the hypothetical case postulated by the majority the applicant would already be suspected of having committed an offence, for which he could be detained under the first part of article 5.1(c).
+The minority (Judges Lemmens and Jaderblom) considered that the case law to the effect that preventive detention under article 5.1(c) was permissible only in the context of criminal proceedings, for the purpose of bringing [a person] before the competent legal authority on suspicion of his having committed an offence (Jecius v Lithuania at para 50), derogated without any specific explanation from what the court stated in Lawless, and that it went too far.
+In Lawless the court recognised that article 5.1(c) covered three different types of situation.
+The judgment in Lawless stated (para 14) that the clause had to be construed in conjunction with article 5.3, with which it formed a whole; and that the obligation to bring a person arrested or detained in any of the circumstances contemplated by article 5.1(c) was for the purpose of examining the question of deprivation of liberty or for the purpose of deciding on the merits.
+The minority in Ostendorf said that later case law had unduly restricted the purpose of bringing the detainee before the court to deciding on the merits and had done away with the possible purpose of examining the question of deprivation of liberty.
+They favoured returning to Lawless, which did more justice to prevention as a possible justification for a deprivation of liberty than the interpretation followed by the majority.
+They said at para 5 of their judgment: An early, prompt release, without any appearance before a judge or judicial officer, may occur frequently in cases of administrative detention for preventive purposes.
+Even so, in such a situation it will be enough for the purpose of guaranteeing the rights inherent in article 5 of the convention if the lawfulness of the detention can subsequently be challenged and decided by a court.
+Applying that approach to the facts, the minority said that the applicant was detained in order to prevent a brawl in connection with a football match.
+They were of the opinion that the police, faced with the situation of a large football event with the assembly of many aggressive supporters in which the applicant appeared and, as assessed by the authorities, planned to instigate fights, could reasonably consider it necessary to arrest and detain him.
+He was detained for approximately four hours.
+It did not appear that this period exceeded what was required in order to prevent the applicant from fulfilling his intentions.
+For those reasons they concluded that his arrest and detention were justifiable under article 5.1(c).
+As to article 5.1(b), it is well established in the Strasbourg case law that an obligation prescribed by law within the meaning of the paragraph must be concrete and specific and that a general obligation to comply with the criminal law will not suffice: see, for example, Schwabe v Germany (2011) 59 EHRR 28, paras 70 and 73.
+The majority found that the requirement of specificity was satisfied on the facts because the obligation whose fulfilment was secured by the applicants detention was not to arrange a brawl between Bremen and Frankfurt hooligans in the hours before, during and after the football match in the vicinity of Frankfurt.
+In the case of a negative obligation, it was necessary and sufficient to show that the applicant had taken clear and positive steps which indicated that he would not fulfil the obligation.
+For this purpose it was necessary that the person concerned was made aware of the specific act which he or she was to refrain from committing, and that the person showed himself or herself not willing to refrain from doing so (as the applicant had done by ignoring a police warning).
+They added that in the case of a duty not to commit a specific offence at a certain time and place, the obligation must be considered as having been fulfilled for the purposes of article 5.1(b) at the latest at the time when it ceased to exist by lapse of the time at which the offence at issue was to take place.
+Judges Lemmens and Jaderblom disagreed, because the legislation under which the applicant was arrested did not specify any obligation which he failed to fulfil.
+Although the police specifically ordered him to stay with his group of fans, the statutory obligation not to commit criminal or regulatory offences was in the view of the minority too general for the purpose of article 5.1(b).
+The cases on the subject all concerned obligations to perform specific acts.
+Things might have been different if the applicant had been the subject of a specific banning order, but that was not the case.
+His only legal obligation was the general obligation not to commit certain crimes or regulatory offences.
+That general obligation did not become specific and concrete merely because he was reminded of it in the context of a specific football match.
+Analysis
+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, but at the same time 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.
+These twin requirements are not contradictory but complementary, and this is reflected in the statement in Ostendorf cited at para 22 above.
+In balancing these twin considerations it is necessary to keep a grasp of reality and the practical implications.
+Indeed, this is central to the principle of proportionality, which is not only embedded in article 5 but is part of the common law relating to arrest for breach of the peace.
+In Austin v Commissioner of Police of the Metropolis [2009] 1 AC 564 Lord Hope made the point at para 34: I would hold that there is room, even in the case of fundamental rights as to whose application no restriction or limitation is permitted by the Convention, for a pragmatic approach to be taken which takes full account of all the circumstances.
+No reference is made in article 5 to the interests of public safety or the protection of public order as one of the cases in which a person may be deprived of his liberty But the importance that must be attached in the context of article 5 to measures taken in the interests of public safety is indicated by article 2 of the Convention, as the lives of persons affected by mob violence may be at risk if measures of crowd control cannot be adopted by the police.
+This is a situation where a search for a fair balance is necessary if these competing fundamental rights are to be reconciled with each other.
+The ambit that is given to article 5 as to measures of crowd control must, of course, take account of the rights of the individual as well as the interests of the community.
+So any steps that are taken must be resorted to in good faith and must be proportionate to the situation which has made the measures necessary.
+In this case there was nothing arbitrary about the decisions to arrest, detain and release the appellants.
+They were taken in good faith and were proportionate to the situation.
+If the police cannot 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) in circumstances where this is reasonably considered to be necessary for the purpose of preventing imminent violence, the practical consequence would be to hamper severely their ability to carry out the difficult task of maintaining public order and safety at mass public events.
+This would run counter to the fundamental principles previously identified.
+There is, however, a difficult question of law as to how such preventive power can be accommodated within article 5.
+The Strasbourg case law on the point is not clear and settled, as is evident from the division of opinions within the Fifth Section in Ostendorf.
+Moreover, while this court must take into account the Strasbourg case law, in the final analysis it has a judicial choice to make.
+The view of the minority in Ostendorf, that article 5.1(c) is capable of applying in a case of detention for preventive purposes followed by early release (that is, before the person could practicably be brought before a court), is in my opinion correct for a number of reasons.
+In the first place I agree with the Administrative Court that the situation fits more naturally within the language of article 5.1(c) than 5.1(b).
+On its plain wording article 5.1(c) covers three types of case, the second being when the arrest or detention of a person is reasonably considered necessary to prevent his committing an offence.
+There is force in the argument that the interpretation adopted by the majority in Ostendorf collapses the second into the first (reasonable suspicion of having committed an offence) and is inconsistent with Lawless.
+It is accepted by the police that English courts should treat Lawless as authoritative, but in that case the court was not concerned with a situation in which the police had every reason to anticipate that the risk necessitating the persons arrest would pass in a relatively short time and there was every likelihood of it ending before the person could as a matter of practicality be brought before a court.
+It would be perverse if it were the law that in such circumstances, in order to be lawfully able to detain the person so as to prevent their imminently committing an offence, the police must harbour a purpose of continuing the detention, after the risk had 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 future.
+This would lengthen the period of detention and place an unnecessary burden on court time and police resources.
+Some analogy may be drawn with Brogan, in which the court rejected the argument that at the time of the arrest the police must intend to take the arrested person before the court willy nilly, regardless of whether on investigation there was cause to do so.
+In order to make coherent sense and achieve the fundamental purpose of article 5, I would read the qualification on the power of arrest or detention under article 5.1(c), contained in the words 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.
+I agree therefore with Judges Lemmens and Jederblom in para 5 of their judgment in Ostendorf (cited at para 25 above) that in the case of an early release from detention for preventive purposes, it is enough for guaranteeing the rights inherent in article 5 if the lawfulness of the detention can subsequently be challenged and decided by a court.
+I prefer to put the matter that way, rather than as the Court of Appeal did by inferring the existence of a conditional purpose ab initio to take the appellants before the court, although it makes no difference to the result.
+I have no disagreement with the Court of Appeal that the appellants would have been brought before a court to determine the legality of their continued detention, if it had been considered necessary to detain them long enough for this to happen.
+The case would then have been materially similar to Nicol and Selvanayagam, where the applicants initial detention was preventive and they were later kept in custody and brought before the court to be bound over.
+It would be contrary to the spirit and underlying objective of article 5 if the appellants early release placed them in a stronger position to complain of a breach of article 5 than if it had been decided to detain them for longer in order to take them before magistrates to be bound over.
+As to article 5.1(b), I am inclined to the same view as the minority in Ostendorf that the obligation has to be much more specific than a general obligation not to commit a criminal offence (or, in this case, a breach of the peace), and that 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.
+There are also practical considerations.
+The police may find it necessary to take action to prevent an imminent breach of the peace in circumstances where there is not sufficient time to give a warning.
+An example might be a football match where two unruly groups collide and the police see no alternative but to detain them, or the ringleaders on both sides, immediately for what may be quite a short time.
+In summary, I would be concerned that in stretching article 5.1(b) beyond its previously recognised ambit the majority found it necessary to impose limitations which in another case might leave the police effectively powerless to step in for the protection of the public.
+Conclusion
+I would uphold the decision of the lower courts that the appellants arrests and detention were lawful under article 5.1(c) and dismiss the appeals.
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+In 2008 Lord Bingham of Cornhill and I were the dissenting minority when the majority in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] AC 453 (Bancoult No 2) allowed the Secretary of States appeal and upheld the validity of section 9 of the British Indian Ocean Territory (Constitution) Order 2004 (the 2004 Constitution Order).
+Section 9 provides that, since the British Indian Ocean Territory (BIOT) was set aside for defence purposes, no person shall have any right of abode there (section 9(1)) and further that no person shall be entitled to enter or be present there except as authorised by the Order itself or any other law.
+I have not changed my opinion as to what would have been the appropriate outcome of the appeal to the House of Lords.
+But that is not the issue before us.
+The issue before us is whether the majority decision should be set aside, not on the grounds that it was wrong in law, but on grounds that the Secretary of State failed, in breach of his duty of candour in public law proceedings, to disclose relevant documents containing information which it is said would have been likely to have affected the factual basis on which the House proceeded.
+That was that the Secretary of State, when enacting section 9, could justifiably rely on the stage 2B report prepared by Posford Haskoning Ltd (Posford) for its conclusion that any long term resettlement on the outlying Chagos Islands was infeasible, other than at prohibitive cost.
+In addressing the issue now before us, we are bound by the legal reasoning which led the majority to its conclusion indeed, strictly bound without possibility of recourse to the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234, since this is an application in the same proceedings.
+The relevant documents are conveniently described as the Rashid documents, after Ms Rashid, the deponent from the Treasury Solicitors Department who by witness statement dated 1 May 2012 first produced them.
+She did this without commentary in Administrative Court proceedings in Bancoult (No 3), regarding the declaration of a Maritime Protected Zone (MPA) in the high seas around BIOT.
+Ms Rashid made clear that she had no personal knowledge of events leading to the earlier failure to disclose.
+That the failure to disclose the Rashid documents in the Bancoult No 2 proceedings was culpable is not, and could not be, disputed.
+On the other hand, it is accepted that it was not intentional and did not involve any bad faith.
+I shall address the circumstances, the contents of the documents and their significance in due course.
+In addition to relying on the alleged breach of candour, Mr Bancoult also seeks to adduce four heads of new material, put forward as constituting evidence unavailable at the time of the House of Lords decision.
+All are said to go to the reliability of the stage 2B report, to undermine or invalidate the basis on which the House proceeded and to constitute an independent justification for re opening the decision.
+I will revert to this ground of application later in this judgment, and focus in the meanwhile on the alleged breach of candour.
+The jurisdiction to set aside in cases of unfair procedure and fresh evidence
+Unfair procedure: There is no doubt that the Supreme Court has inherent jurisdiction to correct any injustice caused by an earlier judgment of itself or its predecessor, the House of Lords, though it is also clear that it will not re open any appeal save in circumstances where, through no fault of a party, he or she has been subjected to an unfair procedure and that there can be no question of that decision being varied or rescinded by a later order made in the same case just because it is thought that the first order is wrong: R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 2) [2000] 1 AC 119, per Lord Browne Wilkinson.
+One partys failure to disclose relevant documentary information is clearly capable of subjecting the other party to an unfair procedure.
+However, a decision to re open an appeal also has important evaluative as well as discretionary aspects.
+The present applicant was, in its application to set aside (paras 109 130), content to express the evaluative aspect in terms used in an analogous context in the Court of Appeal in Taylor v Lawrence [2002] EWCA Civ 90; [2003] QB 528 and followed by the Privy Council in Bain v The Queen [2009] UKPC 4.
+As the Privy Council said in the latter case at para 6, quoting Lord Woolf CJ at p 547 in the former case: What will be of the greatest importance is that it should be clearly established that a significant injustice has probably occurred and that there is no alternative effective remedy.
+Fresh evidence: That the jurisdiction to set aside also extends to situations where fresh evidence is discovered after a judgment has been rendered which is not susceptible of appeal is also recognised in Court of Appeal authority: In re U [2005] EWCA Civ 52; [2005] 1 WLR 2398 Feakins v Department of Environment, Food and Rural Affairs [2006] EWCA Civ 699.
+The latter was a case where it was discovered that a DEFRA official had provided materially incorrect information to the court in a witness statement.
+In each case, however, it was emphasised that it was not sufficient simply to rely on the principles in Ladd v Marshall [1954] 1 WLR 1489, which apply when fresh evidence is sought to be adduced for or on an appeal.
+Rather, as it was put in In re U, para 22, it must at least be shown, not merely that the fresh evidence demonstrates a real possibility that an erroneous result was arrived at in the earlier proceedings , but that there exists a powerful probability that such a result has in fact been perpetrated.
+This statement was quoted from and accepted in the application to set aside, para 121.
+Further, as to the discretionary aspect, the court noted in Feakins: The court [in In re U] held that, although that was a necessary condition, it was not sufficient; the court would have also to consider the extent to which the complaining party was author of his own misfortune and that there was no alternative remedy.
+In oral submissions, Mr Edward Fitzgerald QC did not directly challenge the above principles as stated in In re U, stating in his reply that there was nothing between the parties on jurisdiction.
+However, in his written speaking note, directed specifically to jurisdiction in response to the courts invitation to focus on this, the matter was put differently, and as follows (para 2.4(iv)): As to whether there would now be a different outcome, it is submitted that it is only necessary to show at this threshold stage that there may well be a different outcome on a reconsideration.
+See also, eg the submission (para 8.8) that Dr Shepherd may well have had an axe to grind.
+For my part, particularly where, as here, a party has failed to disclose the documents which it is now submitted constituted important evidence, I prefer to leave open whether a test of probability or, in the context of fresh evidence, powerful probability is too inflexible to cater for all possibilities.
+The egregiousness of a procedural breach and/or the difficulty of assessing the consequences of such a breach or of the significance of fresh evidence might, it seems to me, in some situations militate in favour of a slightly lower test, perhaps even as low as (though I do not decide this) whether the breach may well have had a decisive effect of the outcome of the previous decision.
+I shall consider the present application in that light also, although I do not in the event consider that the outcome of this application depends at any point on the test applied.
+The course of events leading to the present application
+The regrettable facts lying behind these and other proceedings such as R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 1) and (No 3) were outlined by Lord Hoffmann in paras 1 30 of his judgment in Bancoult No 2, in terms which both Lord Bingham and I accepted with only a few (presently immaterial) qualifications: see paras 68 and 137 139.
+BIOT consists of the Chagos Islands, the largest being Diego Garcia.
+In 1966 the United Kingdom agreed in principle to make BIOT available to the United States for at least 50 years for defence purposes, and with effect from July 1971 the United States took over Diego Garcia as a base.
+At the same time, by the Immigration Ordinance 1971, the Commissioner of BIOT prohibited any person from entering or being in BIOT without a permit issued by an immigration officer.
+Mr Bancoult represents Chagossians (or Ilois), indigenous inhabitants of BIOT, whose removal and resettlement the United Kingdom procured between 1968 and 1973 by various non forceful means with a callous disregard of their interests (Lord Hoffmann, para 10).
+Compensation, initially in the 1970s of 650,000 and then in 1982 of a further 4m in a trust fund set up under a Mauritian statute, was paid and accepted in satisfaction of all claims by most (some 1,340) Chagossians, though a few refused to sign.
+A challenge to this settlement was later made but struck out as an abuse of process by Ouseley J in Chagos Islanders v Attorney General [2003] EWHC 2222 (QB), leave to appeal being refused by the Court of Appeal [2004] EWCA Civ 997.
+Ouseley Js judgment made clear that there was no further economic obligation on the United Kingdom to fund resettlement in BIOT.
+A challenge to the Immigration Ordinance 1971 was on the other hand successful.
+In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 1) [2001] QB 1067, the Divisional Court decided that the Commissioner for BIOTs power to legislate for the peace, order and good government of BIOT did not include a power to expel its inhabitants.
+The then Foreign Secretary, Mr Robin Cook, stated publicly that he accepted this decision, and revoked the 1971 Ordinance by the Immigration Ordinance 2000.
+This confined the restriction on entry or presence to persons not British Dependent Territories citizens by virtue of their connection with BIOT.
+Mr Cook also announced that a recently completed feasibility study into the prospects of resettling the Ilois would now proceed to a second stage.
+This was originally intended to involve two phases, the first (Phase 2A) relating to hydrological monitoring, the second (Phase 2B) to a more general examination, prior to a cost benefit analysis (Phase 3).
+The second stage reports were undertaken by Posford as project managers.
+In the event, the first two phases were amalgamated, leading to a report entitled stage 2B published in July 2002.
+Its General Conclusions, para 1.11, stated: To conclude, whilst it may be feasible to resettle the islands in the short term, the costs of maintaining long term inhabitation are likely to be prohibitive.
+Even in the short term, natural events such as periodic flooding from storms and seismic activity are likely to make life difficult for a resettled population.
+The Secretary of State in this light decided not to proceed with Phase 3, terminated consideration of re settlement and on 10 June 2004 introduced a new prohibition on residence in BIOT by section 9 of the 2004 Constitution Order, to the effect set out in para 1 above.
+A new Immigration Order 2004 was at the same time also enacted, but needs no separate treatment here.
+The present proceedings were begun for judicial review to quash section 9 of the Constitution Order.
+They succeeded before the Divisional Court and Court of Appeal, but failed by a majority of three to two before the House of Lords.
+All members of the House accepted that the 2004 Constitution Order was susceptible to judicial review on ordinary principles of legality, rationality and procedural impropriety.
+But the majority (Lord Hoffmann, Lord Rodger of Earlsferry and Lord Carswell) held: that, although the Chagossians had had important common law rights of abode, they were not so fundamental that they could not be removed by section 9; that the Secretary of States decision to remove such rights, to reimpose immigration control and to prevent resettlement was in the circumstances neither unreasonable nor an abuse of power; and that the previous Foreign Secretarys statements in 2000 (para 11 above) did not amount to a clear and unambiguous promise that the Chagossians would be permitted to return and settle permanently creating any legitimate expectation on which they could now rely.
+Lord Bingham and I took the opposite view on these points, and would have dismissed the Secretary of States appeal.
+During the proceedings no challenge was made or suggested to the stage 2B report or its findings.
+The Secretary of State relied on its findings in para 106 of his skeleton argument before the Administrative Court dated 25 November 2004, stating: in any event, the defendant submits that it cannot conceivably be said to be irrational for steps to be taken to ensure that the BlOT is not resettled in circumstances where no viable long term resettlement can be supported; where the costs of resettlement would be extensive, prohibitively expensive and potentially open ended; and where the UKs defence interests and treaty obligations strongly militate against permitting resettlement of the archipelago.
+Sir Sydney Kentridge QC expressly disavowed any challenge to the reports conclusions when opening the Chagossians case before the Divisional Court on 6 December 2005; and amended particulars put before that Court on 13 December 2005 on the issue of irrationality likewise made no such challenge.
+Before the House of Lords the stage 2B report and its findings were equally uncontentious.
+All members of the House proceeded on that basis.
+The argument on behalf of the Chagossians was throughout that the findings did not justify the making of the 2004 Constitution Order.
+Lord Bingham and I accepted that argument, but the majority rejected it and, to differing extents, deployed the relevant findings in their reasoning.
+Lord Hoffmann at para 53 said this: 53.
+I think it is very important that in deciding whether a measure affects fundamental rights or has profoundly intrusive effects, one should consider what those rights and effects actually are.
+If we were in 1968 and concerned with a proposal to remove the Chagossians from their islands with little or no provision for their future, that would indeed be a profoundly intrusive measure affecting their fundamental rights.
+But that was many years ago, the deed has been done, the wrong confessed, compensation agreed and paid.
+The way of life the Chagossians led has been irreparably destroyed.
+The practicalities of today are that they would be unable to exercise any right to live in the outer islands without financial support which the British government is unwilling to provide and which does not appear to be forthcoming from any other source.
+During the four years that the Immigration Ordinance 2000 was in force, nothing happened.
+No one went to live on the islands.
+Thus their right of abode is, as I said earlier, purely symbolic.
+If it is exercised by setting up some camp on the islands, that will be a symbol, a gesture, aimed at putting pressure on the government.
+The whole of this litigation is, as I said in R v Jones (Margaret) [2007] 1 AC 136, 177, the continuation of protest by other means.
+No one denies the importance of the right to protest, but when one considers the rights in issue in this case, which have to be weighed in the balance against the defence and diplomatic interests of the state, it should be seen for what it is, as a right to protest in a particular way and not as a right to the security of ones home or to live in ones homeland.
+It is of course true that a person does not lose a right because it becomes difficult to exercise or because he will gain no real advantage by doing so.
+But when a legislative body is considering a change in the law which will deprive him of that right, it cannot be irrational or unfair to consider the practical consequences of doing so.
+Indeed, it would be irrational not to. (italics added for emphasis)
+Lord Rodger at paras 110 114 said: 110.
+Section 9 of the Constitution Order removes any right of abode on the Chagos Archipelago which the claimant or anyone else may have had.
+It is a stark provision.
+But the Secretary of States decision to have it enacted and the effect of that decision have to be judged against the circumstances at the time it was taken.
+No one was then actually living on the outer islands and, even though the islanders had enjoyed a right to return since November 2000, none of them had done so.
+They were instead seeking support from the UK and US governments to financially assist their return or alternatively to provide compensation: Feasibility Study Phase 2B, Executive Summary, para 1.1.
+More importantly, there was no prospect that anyone would be able to live on the outer islands, except on a subsistence basis, in the foreseeable future: Feasibility Study Phase 2B, Executive Summary, para 1.11.
+Sir Sydney did not dispute this, but contended that it was irrelevant.
+In other words, the position was just the same as if people had actually been living on the islands when the Orders were made.
+I am unable to accept that submission.
+The impact of the legislation on the people concerned would be very different in the two situations.
+In my view, in reviewing the Secretary of States decision to remove the right of abode, it is relevant that there was actually no prospect of the Chagossians being able to live on the outer islands in the foreseeable future.
+The government accepts, of course, that they can apply for permits to visit the islands and that an unreasonable refusal could be judicially reviewed.
+Such visits have taken place in the past. 111.
+Against that background, can it be said that no reasonable Secretary of State could have decided to have section 9 enacted? 112.
+On 15 June 2004 a junior minister, Mr Rammell, made a written statement to Parliament.
+His good faith has not been impugned by the respondent.
+The statement shows that, in deciding to legislate to prevent people resettling on the outer islands, the government took into account the fact that the economic conditions and infrastructure which had once supported the way of life of the Chagossians had ceased to exist.
+Something new would have to be devised.
+The advice was that the cost of providing the necessary support for permanent resettlement was likely to be prohibitive and that natural events were likely to make life difficult for any resettled population.
+Human interference within the atolls was likely to exacerbate stress on the marine and terrestrial environment and would accelerate the effects of global warming.
+Flooding would be likely to become more frequent and would threaten the infrastructure and the freshwater aquifers and agricultural production.
+Severe events might even threaten life.
+The minister recorded that, for these reasons, the government had decided to legislate to prevent resettlement.
+Although he made no mention of it, the decision to legislate and to introduce immigration controls at that particular time appears to have been prompted by the prospect of protesters attempting to land on the islands.
+In addition, Mr Rammell said that restoration of full immigration control over the entire territory was necessary to ensure and maintain the availability and effective use of the territory for defence purposes.
+He referred to recent developments in the international security climate since November 2000 when such controls had been removed. 113.
+The ministerial statement indicates that a decision to legislate was taken on the basis of the experts (second) report on the difficulties and dangers of resettling the islands, these difficulties and dangers being dangers and difficulties which would affect the Chagossians themselves, if they were to try to live on the outer islands.
+Given the terms of that report alone, it could not, in my view, be said that no reasonable government would have decided to legislate to prevent resettlement.
+In particular, the advice that the cost of any permanent resettlement would be prohibitive was an entirely legitimate factor for the government, which is responsible for the way that tax revenues are spent, to take into account.
+In addition, the government had regard to defence considerations, the views of its close ally, the United States, and the changed security situation after 9/11.
+These additional factors reinforce the view that the decision to legislate was neither unreasonable nor irrational. 114.
+Of course, the decision was adverse to the claim of the Chagossians to return to settle on the outer islands.
+But that does not mean that their interests had been ignored: a realistic assessment of the long term position of any potential Chagossian settlers on the outer islands was central to the expert report on which the government relied.
+In addition, the government considered the overall interests of the United Kingdom.
+It was entitled to do so.
+In the absence of any relevant legal criteria, judges are not well placed to second guess the balance struck by ministers on such a matter. (italics added)
+Lord Carswell said (para 120) that he agreed with very little qualification with the reasoning of Lord Hoffmann and Lord Rodger, but his specific reasoning focused on the lack of long term feasibility.
+He said that the Chagossians expressed wish to return to their homeland was: put on an abstract basis by their counsel, for it is quite clear that for them to resettle in the islands is wholly impracticable without very substantial and disproportionate expenditure.
+They are not in a position to meet such a cost.
+It could only be shouldered by the British government, which has made it clear that it is willing to permit and fund from time to time short visits to the outlying islands, but not to support a large scale permanent resettlement.
+One might ask the question why this campaign is being pursued, for the Chagossians already can pay visits and there is no realistic prospect of resettlement unless it is funded for them at huge expense.
+I do not find it necessary to seek an answer to that question, but the practical difficulties in the way of resettlement are in my view relevant to the rationality of the governments decision to make the 2004 Orders in Council. (italics added)
+On the present application, Mr Bancoult submits that, had the Rashid documents been available prior to the hearing before the Divisional Court, the Court of Appeal or the House of Lords, they would have led to a challenge being mounted to stage 2B report, the conclusions drawn in that report would have been discredited, and the majority reasoning in the above extracts would have been impossible.
+This brings me to a consideration of the Rashid documents.
+The Rashid documents:
+(a) Circumstances of late disclosure
+By letter dated 5 December 2005 disclosure had been made on behalf of the Secretary of State to Sheridans, solicitors acting for Mr Bancoult, of a copy letter dated 23 May 2002 sent by Mr Charles Hamilton of BIOT to Ms Alex Holland, the senior environmental scientist who was Posfords project manager.
+This raised questions and made comments on a draft stage 2B report.
+Between November 2005 and February 2006, requests were made on behalf of Mr Bancoult for disclosure of this draft report as well as any draft of the earlier feasibility study.
+The Treasury Solicitor, while replying that these requests did not go to any issue in Bancoult No 2, made searches, but was in the event only able to locate a draft feasibility study which was disclosed in early December 2005.
+By letter dated 13 January 2006 (E1472) Mr Bancoults solicitors, Sheridans, questioned, in relation to the stage 2B report, whether there had been official input into the work of consultants which undermines its authority.
+The Treasury Solicitor responded that this was an extremely serious allegation and needed to be particularised.
+It was not particularised and, as stated, no challenge to the stage 2B report was then made.
+A further allegation that, in the absence of the draft stage 2B report, the General Conclusions must be assumed not to be the unguided advice of independent consultants was made by note dated 13 March 2009.
+On 7 October 2010 an email dated 29 May 2002 sent by Mr Charles Hamilton to Ms Holland advising that the final draft omit development scenarios (advice not in fact followed: para 40 below) was disclosed on behalf of the Secretary of State in the context of the issues arising in Bancoult (No 3).
+By letter dated 21 December 2010 Clifford Chance (now acting for Mr Bancoult as a result of the move to that firm of Mr Gifford the individual partner handling Mr Bancoults affairs) wrote asserting that the total absence of any records of meetings in May June 2000 and June/July 2002 regarding what became respectively the feasibility study and stage 2B report casts grave doubts on the ability of FCO to explain its conduct or to justify what appears to be serious and concerted influence practised to achieve a conclusion which reflected the views of officials and contradicted the unguided advice of consultants.
+Clifford Chance referred in this connection to the disclosure of the email dated 29 May 2002 and to statements made to them in a letter dated 11 February 2010 by Mr Stephen Akester, one of the Phase 2B consultants, that resettlement was always feasible within reasonable cost parameters, but that he was not in the committee that drafted the stage 2B report.
+On 10 October 2011 Clifford Chance wrote in the light of the above urging a yet further search for documents pursuant to the Secretary of States duty of candour in the context of both Bancoult (No 2) and Bancoult (No 3).
+The further search then made led to the Treasury Solicitor discovering previously undisclosed documents, including the draft stage 2B report, in circumstances described in its letter dated 15 March 2012 to Clifford Chance as follows: In the context of the aforementioned matters, TSol recalled archived files held by a third party document storage company that were generated during the conduct of the Bancoult (No 2) litigation.
+In the course of reviewing these files, it has become apparent that they contain certain documents concerned with the drafting of the Phase 2B report which originate from the FCO but are no longer retained by the FCO on its own files as a result of its document retention.
+It was subsequently further explained that there was clearly a point, occurring during 2005, when the FCO no longer held the draft Phase 2B Executive Summary on its files, as it was removed according to the FCOs document retention policies, and yet TSol retained a copy on its Bancoult (No 2) files.
+The documents so discovered, including the draft stage 2B report, were then disclosed by Ms Rashids witness statement dated 1 May 2012.
+The Secretary of State accepts that, in the light of the requests made and despite the absence of any challenge to the stage 2B report, the Rashid documents should have been capable of location and should have been located and disclosed pursuant to his general duty of candour in public law proceedings.
+The failures in this regard were and are highly regrettable.
+But there is, as stated previously, no basis for attributing them to any deliberate misconduct.
+The question is what significance would or might have attached to, and what consequences would or might have flowed from, their disclosure. (b) Alleged significance of the Rashid documents
+In Mr Bancoults written case, it is alleged that the Rashid documents would
+have been significant under four heads: (i) As showing that, instead of being independent as understood, the final report was subject to extensive alterations to reflect FCO views.
+Head (iv) below concerns one particular difference alleged to be centrally important to the stage 2B reports conclusions. (ii) As revealing that Dr Sheppard, the FCOs scientific adviser, had criticised the draft stage 2B report in an email sent to Charles Hamilton on 14 May 2002 and had, after the issue of the final report, also endorsed criticisms of it made by a resettlement anthropologist, Jonathan Jenness, instructed on behalf of Mr Bancoult. (iii) As revealing evidence of lack of objectivity in Dr Sheppards input into the stage 2B report before it was finalised.
+More specifically, it is said that the documents show that Dr Sheppard was the only reviewer of the whole draft, that heavy reliance on only one specialist made the report unsafe and that, as a coral reef specialist well known to be strongly dedicated to their conservation, there is concern whether he could reasonably be regarded as an objective assessor on the issue of reintroducing human settlement. (iv) As showing alterations between the draft and final version of the stage 2B report in a manner which conflates and distorts the consultants original finding in relation to storms creating difficulties for resettlement.
+Taken together, it is submitted that it is certain that, had the Rashid documents been disclosed, they would have caused the applicants representatives to challenge the reliability of the feasibility study, that it is highly likely that the challenge would have succeeded and that, if the House of Lords judgment is set aside, a new hearing will reach a different conclusion.
+The focus of the first and fourth heads of alleged significance of the Rashid documents is alterations alleged to have been made and to have distorted the final stage 2B report.
+The focus of the second and third heads is Dr Sheppard.
+The second relies on his criticisms of the draft.
+The third suggests that his input lacked objectivity and was unreliable.
+(c) The first and fourth heads
+These two heads stand or fall together.
+They are reproduced in the speaking note which Mr Edward Fitzgerald QC used at the hearing before the Supreme Court.
+That speaking note refers to extensive alterations to the original draft in the final draft, which it suggests are likely to have reflected FCO views and input and to have been unsupported by evidence in the body of the study.
+According to Clifford Chances letter dated 10 October 2011, there were 94 revisions over a period when the document was open for editing for a total of seven and a half hours.
+The speaking note says that some of the key changes are summarised in a summary note dated 17 February 2015 prepared by counsel for Mr Bancoult.
+This was based in turn on a lengthy Analysis Note prepared by Mr Bancoults solicitor, Mr Gifford, in conjunction with a coral scientist, Mr Dunne.
+In addition to the change relating to storms and re settlement identified in head (iv), the summary note identifies three further key amendments.
+That alterations would or might be made in the final report following comments by the FCO and BIOT on the draft report cannot come as any surprise to those representing Mr Bancoult, or be regarded as in any way unnatural.
+The stage 2B report was prepared by Posford under a contract expressed to be between the Commissioner for BIOT and Posford Duvivier Environment dated 10 December 2001.
+The Terms of Reference set out in section 4 of the contract provided by clause 6 for monthly reporting and further by clause 6.3 that A draft final report, containing an account of the work done, conclusions and recommendations will be submitted within four months of commencing the assignment.
+Within two weeks of the receipt of comments on the draft from recipients, consultants will submit a Final Report.
+In this respect clause 6.3 echoed the provisions of clause 17 of the terms of reference for the earlier contract dated 13 April 2000 made with David Crapper for the feasibility study, which, when made was according to its terms intended also to cover stage 2.
+Clause 17 provided: 17.
+A draft report will be produced for the government of the BIOT.
+On receiving comments on the draft report from the government of the BIOT, the consultant will finalise the report and provide the text in both paper and electronic form to the government of the BlOT.
+Sheridans received a copy of this earlier contract, and in a letter dated 28 November 2005 noted and set out clause 17 specifically, not by way of objection, but in order to ask for the draft report and for any comments on it made by the FCO and the government of BIOT.
+Whether any of the actual alterations made can be described as extensive or as reflecting FCO views, or be seen to have unbalanced the report as a result, are matters to which I will come.
+Before doing so, it is convenient to examine events in more detail to identify any overt trace of undue executive influence over the final report.
+After entry into force of the contract dated 10 December 2001, Posford set about preparing for field studies in BIOT, in particular on the two outlying islands of Ile de Coin and Ile Boddam, as contemplated by its terms.
+These took place in February 2002, after which Posford submitted a second progress report dated 1 March 2002.
+This was tabled and discussed at a meeting with the FCO and BIOT on 6 March 2002.
+There is no suggestion or likelihood that the draft executive summary was available to anyone at this stage, and Ms Hollands letter dated 12 April and Mr Hamiltons email dated 15 April 2002 (E2404) indicate that, once drafted and reviewed, such a draft was only submitted to the FCO in early April 2002.
+It is convenient at this point to introduce the fourth piece of new evidence on which the applicant seeks to rely.
+It is a note of the 6 March 2002 meeting made by Posford dated 7 March 2002.
+It was only obtained by the applicants advisers, after a chance meeting, from Mr Stephen Akester of MacAlister Elliott & Partners (MEP), sub contractors to Posford who arranged the on site investigations in the Chagos in early 2002.
+As such it is not a document which was at any relevant time in the possession of or available to the executive.
+But it records a meeting at which FCO and BIOT representatives were present, and, taking it as an accurate record of what took place at that meeting, what it records was within their knowledge, and may also throw light on their roles in relation to the re drafting and finalisation of the stage 2B report.
+Mr Huckle of the FCO is reported as reiterating the political importance of the forthcoming feasibility report which he stressed had been heightened in recent weeks because the Ilois are currently pursuing legal action against the British and American governments.
+He went on to point out that the outcome of the court case will either be compensation, or financial assistance to the Ilois in resettling the islands and that the questions were how much, and what forms of livelihood development will the British government permit, which he said was where the feasibility report comes in.
+There is nothing here which appears to be anything other than a genuine explanation as to the reports current relevance couched if anything in terms anticipating that it would accept the possibility of resettlement.
+The FCO appears a little later as saying that it had hoped that Phase II would negate the need for Phase III, ie if it concluded that resettlement wasnt feasible, but realistically, that was never likely to be the outcome.
+The FCO is hoping that the section on Climate Change will resolve its difficulties, but Brian [Little] and I pointed out that a considerable amount of money could be made in 25 100 years, and lets not assume that the Ilios are considering a return to subsistence or reliance on natural resources .
+Again this confirms, if anything, that the FCO was resigned to a report accepting the feasibility of some form of resettlement, and that Posford was well capable of standing up for what it believed correct.
+Indeed, earlier in the note Posford recorded that allegedly, a number of those whom we competed against in the bidding process have been taking pot shots at our approach within earshot of important people.
+Sounds like sour grapes.
+That all said, our findings and arguments must be tight and convincing.
+There is no suggestion that the FCO was inviting changes to bolster any sort of findings or conclusions in either the draft and the final report, and no basis for regarding Posford as susceptible to any such invitation.
+The express purpose of the 6 March meeting was, as stated, to provide a de briefing on Posfords recent field studies on Ile du Coin and Ile Boddam.
+In all the circumstances, the 7 March 2002 note provides no real support to a suggestion that the content even of the draft stage 2B report was unduly interfered with or influenced by the FCO or BIOT, still less that any subsequent alterations between the draft submitted in April and the stage 2B report as finalised in June were the result of any such undue interference or influence.
+The follow up exchanges after Posford had completed and submitted all sections of the draft report in April 2002 (E2403) are evidenced by the Rashid documents as well as the previously disclosed messages dated 23 and 29 May 2002 from Mr Hamilton to Ms Holland.
+They are also significant.
+Dr Sheppard had on 14 May 2002 sent Mr Hamilton very detailed comments on the draft report (E2409 on).
+In relation to the Executive Summary, he wrote: This important section does not always reflect the content of the volumes very well.
+This is doubtless due to haste and short deadlines.
+Several key issues missed out are stated in the text and in the conclusions.
+I suggest that after a period of reflection this is revisited.
+Several conclusions are apparently at odds either with each other or with other, known facts.
+During the rewrite, these apparent contradictions in the text can be resolved.
+They make parts of the report somewhat vulnerable.
+One example is the widely varying estimates of numbers of people that could be sustainably supported.
+Dr Sheppard went on in sections dealing with the body of the draft report to note (a) the risk of water contamination, observing that the draft did not clearly state how such contamination could be prevented through the thin roof of the aquifers, (b) a contradiction between statements that Water recharge of aquifers would increase by vegetation clearing (Groundwater resources section) But: water recharge would decrease with clearance of plants and development (from volume IV), and (c) under Other points: The point about Chagos is that it lies in the most nutrient poor part of the Indian Ocean.
+The Chagos bank fishery potential is estimated to be half that of other banks (p 146).
+Mr Hamilton then wrote to Ms Holland on 23 May 2002, noting that he had studied the drafts of the report in some detail, that it and any recommendations which followed from it would be carefully examined and that we are particularly anxious therefore that its scientific content is as complete and watertight as possible.
+He made detailed comments on the draft, drawing heavily on Dr Sheppards comments, particularly when writing this in relation to the Executive Summary: This important section does not always reflect the content of the volumes very well.
+Several key points and conclusions in the main text are important and stand out, but are not well reflected in the summary.
+Further, several conclusions are apparently at odds either with each other or with other known facts.
+During your revision, I would be grateful if you would resolve these apparent contradictions as they make parts of the report unclear.
+Examples of issues needing reconciliation include widely varying estimates of numbers of people that could be sustainably supported, issues of water contamination and the balances of water use for different activities, whether plants increase or decrease water recharge, and the Chagos bank fishery potential.
+Synthesis would doubtless resolve many of these.
+I understand that different consultants wrote different sections, so I think that this summary may be a suitable place for an overall, concise synthesis, which would also include overall environmental management recommendations.
+Many of these points are noted in the attachments relating to different sections, but are crucial for the writer of this Executive Summary.
+As is apparent, Mr Hamilton was here picking up points made by Dr Sheppard as indicated above.
+In attachment 7, relating to volume III of the draft dealing with resettlement issues, Mr Hamilton discussed three scenarios which had been included, noting various issues and that nothing had been said either on scenario 3 (based partly around expensive tourism), although this appeared to be the only attractive development option for interested parties, or on a possible scenario 4 (non residential, but settled seasonally for some fishing).
+The discussion ended Possibly use of the three scenarios just adds confusing complexity and begs several questions which are not answered.
+He ended by underlining the importance attaching to the overall synthesis (Executive Summary) which should clearly highlight the main points which are brought out in the text, and indicated that following the drafts revision he would call a meeting of all concerned to finalise the report.
+Posford then prepared its own detailed comments on Mr Hamiltons letter which were sent to him by Ms Holland under cover of a faxed letter dated 28 May 2002.
+Her letter stated: To summarise the attached, we consider that some of the comments are valid and we will revise our report in light of these suggestions.
+However, we feel that others are somewhat inaccurate and do not reflect the understanding we had with the BlOT Administration on our approach.
+I should like to discuss these comments with you at your earliest convenience.
+In the body of the comments, Posford replied to the points made on the three scenarios as follows: Three scenarios: There was much debate during the drafting of the report as to whether the three scenarios should be included, but several of those involved considered that these helped to develop conclusions about whether certain resettlement activities would be possible, particularly in the drafting of the environmental appraisal.
+We stopped at three hypothetical scenarios, but recognise that there could be many more combinations of activities.
+The suggestion of scenario 4, which is based on non residential and non development, does not actually constitute resettlement and was therefore not considered as a scenario.
+However, you will note that Option 1 for fisheries development (p 165) does refer to this form of livelihood activity.
+We would be grateful if you would give direction as to whether you wish us to include or exclude the development scenarios from the final report.
+To this last request, Mr Hamilton simply replied by email on 29 May 2002: You asked about the inclusion of development scenarios in the final report.
+Our advice is that it would be better if these are excluded.
+However, as Mr Giffords and Mr Dunnes Analysis Note acknowledges, this advice was not in fact taken up in the final stage 2B report, where the Development Scenarios can be seen to be crucial to several parts of the study.
+Nevertheless, the Analysis Note seeks to portray Mr Hamiltons letter and comments dated 23 May 2002 as an exercise of editorial control, and his email of 29 May 2002 as yet further attempts to exercise editorial control over the final report.
+To my mind, there is nothing untoward about them at all.
+The impression conveyed is one of independently minded exchanges, passing between people whose genuine concern was to have as thorough, accurate and watertight a final report as possible.
+Posfords comments dated 28 May 2002 were evidently also sent to Dr Sheppard, since he commented on them by email on 31st May 2002 (E2450 2451).
+There were further technical exchanges between Brian Little, who had been appointed as FCO Feasibility Study Project Manager under contract dated 29 January 2001, and Posford in late May and early June (E2452 2458 and E2465 2467), and a further set of comments by Tony Falkland of Posford responding on 9th June to Dr Sheppards comments (E2459 2464) as well as to Brian Littles comments (E2465 2468).
+Dr Sheppard noted Mr Littles comments on 11 June (E2469), and Mr Little sent an email commenting on Posfords response on 12 June (E2470).
+A meeting was set up to discuss the final report on Friday 12 June, in relation to which Mr Hamilton invited Dr Sheppard to act as a devils advocate.
+This he evidently did (E2476 2477).
+Some changes/deletions were made, leading to the final report.
+Reading all these exchanges, nothing in them suggests anything but a proper, professionally oriented and independent process, with all involved seeking to arrive at objective and sustainable findings and conclusions.
+I turn to the alterations which can now be seen to have been made between the original draft and the final report.
+The General Conclusions, to which Sheridans rightly attached importance in their note dated 13 March 2009 (para 21 above), are now available in both their draft and their final form in the executive summary.
+A fundamental point which risks being overlooked in discussion about differences elsewhere in the executive summary or body of the text is that the General Conclusions can now be seen to have been in identical terms in both their draft and their final versions.
+Their terms have been set out in para 12 above.
+They represent the critical conclusions, on which the majority in the House of Lords relied as justifying the Secretary of States decision to make the 2004 Constitution Order, and they were unaltered between the original draft and final versions.
+following section headed Vulnerability: Immediately preceding these General Conclusions also appeared the There appear to be sufficient groundwater, soils, fisheries, and environmental (eg limited tourism) resources to support a small population on a subsistence basis with some commercial opportunity, but there are some more fundamental issues surrounding the feasibility of resettlement.
+These relate to the vulnerability of a resettled population to current and predicted climatic conditions, and the fragility of the environment to human induced disturbance.
+Under the present climate, it is assumed, based on historic meteorological patterns and observations, that the islands are already subject to regular overtopping events, flooding, and erosion of the outer beaches.
+As global warming develops, these events are likely to increase in severity and regularity.
+In addition, the area is seismically active, and the possibility of a tsunami is a concern.
+These events would threaten both the lives and infrastructure of any people living on the islands.
+Whilst it might be possible to protect the islands to some extent in the short term through coastal defence measures, it is likely to be cost prohibitive and non pragmatic to consider this form of defence in the long term.
+The environment of the Chagos Archipelago is highly diverse and yet very susceptible to human disturbance.
+Coral reefs, which are one of the most important ecosystems within the Archipelago, are already exhibiting signs of stress from increased sea surface temperatures and other climatic phenomenon.
+Predictions from climate change experts indicate that mass mortality of reef building corals in the Indian Ocean is likely to occur as global warming increases, may be as soon as within the next 20 years.
+This will not only have huge implications for the long term coastal defence of the islands, and hence their very existence, but will also adversely affect livelihoods, particularly fisheries and tourism, which are likely to be the mainstay of any resettled population.
+Human interference within the atolls, however well managed, is likely to exacerbate stress on the marine and terrestrial environment and will accelerate the effects of global warming.
+Thus resettlement is likely to become less feasible over time.
+Again this passage was in identical form in the draft and final stage 2B report, and, as the Analysis Note acknowledges, it constitutes the basis for the overall negative assessment in the General Conclusions.
+The identity of these core sections of the Executive Summary in the draft and final reports raises obvious problems for the present application.
+But it is said that these key sections refer back in turn to section 1.8.
+It is in section 1.8 that the summary note dated 15 February 2015 identifies in total four key amendments.
+The following passages underlined and marked A, B or C in the following extracts from the draft report are passages on which Mr Bancoult relies in support of his case of inappropriately motivated or influenced alteration: 1.8 CLIMATE CHANGE The reports of the International Panel on Climate Change were evaluated to determine the latest projections on climate change.
+Global sea levels are expected to rise by about 38cm between 1990 and the 2080s.
+Indian and Pacific Ocean islands face the largest relative increase in flood risk.
+Although there will be regional variation, it is projected that sea level will rise by as much as 5mm per year, with a range of 2 9mm per year, over the next 100 years [B].
+With a rise of 0.5 metres in sea level, the implications of climate change on the Chagos Archipelago are considerable, given that mean maximum elevation of the islands is only two metres; the diversity of livelihoods available is limited; and the relative isolation and exposure of the islands to oceanic influences and climatic events.
+These implications are discussed in the light of biodiversity and resettlement. 1.8.1 Implications for Biodiversity The impacts of climate change on highly diverse and productive coastal ecosystems such as coral reefs and atoll islands will depend upon the rate of sea level rise relative to growth rates and sediment supply.
+In addition, space for and obstacles to horizontal migration, changes in the climate ocean environment such as sea surface temperatures and storminess as well as human pressures will influence the capacity of ecosystems to adapt to the impacts of' climate change. [Two paragraphs dealing with coral bleaching and reefs] Species that occupy terrestrial habitats for all or part of their life cycle, such as birds, turtles and coconut crabs, will also be adversely affected by sea level rise.
+There is considerable uncertainty about how climate change will affect the natural environment in the Chagos Archipelago, but that the outcome is likely to be an unfavourable shift in biodiversity. 1.8.2 Implications for Resettlement The most significant and immediate consequences of climate change on a resettled population within the Chagos Archipelago are likely to be related to changes in sea levels, rainfall regimes, fresh water resources, soil moisture budgets, prevailing winds (direction and speed) and short term variation in regional and local patterns of wave action.
+At present, the Chagos Archipelago lies just north of an active cyclone belt, however, a small northward shift of this belt could lead to frequent cyclones in the area [A].
+This would lead to more frequent flooding of the islands, with corresponding risk to life and any infrastructure.
+It would also reduce agricultural potential and the freshwater contained within the island aquifers would experience higher levels of salinity.
+Irrespective of whether the Chagos Archipelago becomes subjected to regular cyclones, the general increase in storminess that may accompany climate change would result in increased wave energies and an increasing frequency of over topping events [C].
+Based on a 0.5m rise in sea level scenario, models of overtopping events demonstrate an increase of between 20 50% of the frequency of severe events.
+Of further significance is the probability that sea level rise and overtopping events would threaten the characteristics and sustainability of the fresh groundwater lens.
+The rate of erosion of the ocean coasts are likely to increase with sea level rise andincreased storminess, and would be accompanied by an increase in sediment transport, which would have implications for shoreline infrastructure.
+On islands where physical space is limited, as in Chagos, coastal defences are likely to be low key and would need to be developed with a view to sustainability.
+It is advised that future settlers on the outer atolls should be made aware of the risks of climate change in terms of their own safety and that of any physical investment.
+Should people wish to return, it would be prudent to provide specialist assistance in the preparation of appropriate and sustainable land use and coastal defence policies, which would ensure that the vulnerability of the resettled population was minimised as far as possible.
+In the final stage 2B report, section 1.8 of the executive summary reads as follows.
+Again, the passages underlined and marked A, B and C are passages on which Mr Bancoult relies in support of his case of inappropriately motivated or influenced alteration: CLIMATE CHANGE According to the International Panel on Climate Change global sea levels are expected to rise by about 38cm between 1990 and the 2080s.
+Indian and Pacific Ocean islands face the largest relative increase in flood risk.
+Although there will be regional variation, it is projected that sea level will rise by an average of 5mm per year over the next 100 years [B].
+The implications of these predictions for resettlement of the Chagos Archipelago are considerable, given that mean elevation of the islands is only two metres.
+The most significant and immediate consequences of climate change for the Chagos Archipelago are likely to be related to changes in sea level, rainfall regimes, soil moisture budgets, prevailing winds, and short term variation in regional and local patterns of wave action.
+As a consequence, most islands will experience increased levels of flooding, accelerated erosion, and seawater intrusion into freshwater sources.
+The extent and severity of storm impacts, including storm surge floods and shore erosion are predicted to increase [A].
+Although the risks associated with climate change are not easily established the implications of these issues to resettlement of the outer atolls of the Chagos Archipelago are outlined briefly below.
+Implications for water resources: Rising sea level would not have a significant effect on island freshwater lenses in the Chagos archipelago unless land is lost by inundation.
+If rising mean sea level causes land to be permanently inundated, then there will be a consequent loss in fresh groundwater.
+Increased storminess [C]: The Chagos islands have a small storm surge envelope thus even small changes in sea level and storm surge height implies an increase in the area threatened with inundation.
+It has been predicted that the flooding severity for a 1 in 50 year storm event with 0.5m of sea level rise is almost as high as the present day 1 in 1000 year event.
+Inundation can cause seawater intrusion into freshwater lenses.
+This not only reduces the availability of water for human consumption, but if salinity concentrations are high enough it can lead to decreased agricultural production.
+Biological systems and biodiversity: Climate change is predicted to have a significant impact on the marine and terrestrial environments of the Archipelago.
+Coral reefs are one of the most important ecosystems likely to be affected, and their ability to cope will depend upon the rate of sea level rise relative to their growth rate.
+The Chagos coral reefs were severely affected by the 1998 El Nino event, therefore any future sea surface warming would increase pressure on already stressed coral reefs.
+The added pressure of human interference within the marine environment would further weaken the ability of these systems to cope with climate change.
+Fisheries and aquaculture: It is predicted that climate change may have a severe impact on the abundance and distribution of reef fish populations.
+In addition, there is strong evidence of a correlation between the annual incidence of ciguatera (fish poisoning) and local warming of the sea surface, which will have an impact on fisheries potential, for subsistence and commercial purposes.
+Climate change is expected to have both positive and negative impacts on aquaculture; but the implications for seaweed farming (as investigated during this study) is not positive, with increased temperatures leading to reductions in productivity [D].
+Human health, settlement and infrastructure: Populations, infrastructure and livelihoods are likely to be highly vulnerable to the impacts of climate change.
+Sustainability in food and water availability will be among the most pressing issues, together with the vulnerability of infrastructure to flooding and storm surges.
+Vulnerability and adaptation: There is a wide range of adaptation strategies that could be employed by a resettled population in response to climate change.
+Integrated coastal management has been strongly advocated as the key planning framework for adaptation.
+Adapting to island instability: There are two issues that need to be taken into account in adapting to island instability: shoreline erosion and sediment inundation of the island surface.
+Adaptation can fall within three broad categories depending on the level of infrastructure and population density on islands: no response; accommodation (infrastructure and dwellings are replaced at a rate commensurate with island migration); or protection (maintenance of infrastructure through coastal protection measures).
+The latter is likely to be the most costly strategy, and should be avoided through wise land use planning.
+Adaptation to inundation: Response to inundation will vary depending on the level of development on islands.
+On islands that will have little infrastructure, as is likely to be the case in Chagos, the costs to protect against inundation are likely to be prohibitive.
+Adaptation measures will include siting of infrastructure in low risk areas and the application of appropriate infrastructure designs, such as revised floor levels and open structures.
+More robust measures to prevent inundation, such as seawalls, are not recommended as they necessitate costly maintenance and future vertical extension as sea level rises, and they can lead to adverse impacts on coastal habitats.
+Adaptation to reef response: Discussion of the possible response of coral reefs to sea level rise indicates that at worst reef food and sediment resources diminish and at best they are maintained at similar levels or may even increase.
+The importance of reefs as both natural coastal protection structures and providers of food means that any adaptation measures against climate change, and any human livelihood activities, should not compromise the health of the reef system.
+Minimising adverse effects on reefs will require robust pollution control measures and effective waste management.
+From an examination of projected climate change scenarios, it is likely that the Chagos Archipelago, and any population settled on the outer atolls, will be vulnerable to its effects.
+The main issue facing a resettled population on the low lying islands will be flooding events, which are likely to increase in periodicity and intensity, and will not only threaten infrastructure but also the freshwater aquifers and agricultural production.
+Severe events may even threaten life.
+Increases in sea surface temperatures are likely to have adverse effects on coral reefs and consequently their ability to act as a coastal defence to the islands, and to support fisheries.
+This will place more pressure on resettled populations to not only counteract the pressures of climate change but also to ensure that their subsistence and income needs are met.
+The key amendments relied upon therefore fall under four heads.
+It is worth emphasising their limited extent in the overall context of the report, and particularly in the light of the unaltered General Conclusions and Vulnerability sections.
+Whatever the suggestion whether it is that the alterations were the product of undue executive influence or that they in some way demonstrate that the final report was unreliable or that the Secretary of State would have reached a different decision regarding the making of the 2004 Constitution Order if he had only been shown the draft rather than the final report the limited extent of the alterations in the overall context of the report points to my mind sharply against giving it credence or weight.
+However, I must also examine the amendments more closely.
+Taking first the change identified at [A] the main criticism is that The effect of this change is to delete from the feasibility study the important fact that the Chagos Islands are not within the cyclone belt at present, but to the North of it.
+There is no information anywhere in the Phase 2B study to indicate that (1) the cyclone belt has moved, either northward or in any other direction, in the past; or (2) that it is likely to move in the future; or (3) that if it were to move it would move closer to the Chagos Islands as opposed to moving further away from them.
+This is not however correct.
+Both the Gifford/Dunne Analysis Note and Mr Jennesss report demonstrate that the passage removed from the draft executive summary remained in the body of the report: see E1330, citing passages from Part III which set out the same information as appeared in the draft about the effect of a small shift north in the cyclone belt.
+A second criticism addressed to the change at [A] relates to the addition of new sentences stating that As a consequence [of climate change], most islands will experience increased levels of flooding, accelerated erosion, and seawater intrusion into freshwater sources and that The extent and severity of storm impacts, including storm surge floods and shore erosion are predicted to increase.
+For the latter, it is said, There is no factual basis and it is not supported by a close reading of the body of the report.
+As to this, two points arise.
+First, both the draft and the final reports start by stating that the most significant and immediate consequences of climate change for the Chagos Archipelago are likely to be related to changes in sea levels, rainfall regimes, soil moisture budgets, prevailing winds and wave action.
+The statements in the final version that As a consequence most islands will experience increased levels of flooding, accelerated erosion, and seawater intrusion into freshwater sources and that the extent and severity of storm impacts, including storm surge floods and shore erosion are predicted to increase follow unsurprisingly from this initial sentence.
+Second, as to the criticism of lack of evidential support, no basis appears for doubting that these statements were fully endorsed, and if anything regarded as understated, by Dr Sheppard.
+Dr (now Professor) Sheppard was at the time Head of Biological Sciences at Warwick University, and was (unlike Mr Jenness, who was a resettlement anthropologist) an acknowledged expert on climate change and marine science in general and on BIOT in particular.
+He supported Posfords conclusions in this area and believed that they were, if anything, understated: see eg E2409, where on 14 May 2002 he commented on the draft report: Oceanographic, climate, groundwater and soils sections are scientifically sound (with some queries and revisions suggested).
+These broadly show that development in the islands is not sensible, long term nor sustainable (and may even become dangerous) for the first two development scenarios.
+See further E2461, where on 31st May Dr Sheppard noted, in relation to rainfall and recharging of the lenses and in view of changes to future rainfall projected by the Hadley Centres website, that the consequences to sustainable settlement numbers could be considerable; and E2519 to E2523 where in October 2002 he responded to Mr Jennesss criticisms of the final version, stating, in particular, that past lack of flooding, lack of erosion, steady temperature, are no guide at all to conditions from now on and that our climatic entry into the unknown is difficult to accept for those who are unversed in such matters, as seems to be the case with Jenness. (E2519)
+Dr Sheppard went on (E2520): The climate modelling section, which is the part which most effectively supports the notion that resettlement will be hazardous is the most criticised by Jenness.
+In fact the model is pretty rigorous and is probably correct.
+It does miss some detail, but its general tenet is almost certainly, unhappily for the Chagos islands, quite accurate, and fits well with climate modelling and predictions from many other sources.
+Again, Jenness is unaware just how much change is forecast. (If he is aware, he is writing propaganda, not a scientific critique.)
+If anything, it is clear that Dr Sheppard thought that Posford should have gone further.
+Thus at E2463 he is recorded as having advised on 31 May 2002 that following should be further addressed or resolved in the final report, viz Effects of sea level rise on the boundaries or depths of the lenses, especially in islands whose central parts are near sea level (two islands were levelled and this could be usefully incorporated).
+Posfords response was that The effects of sea level rise on the groundwater systems was not in the TOR for the groundwater section.
+As a further example, commenting on Mr Jenness views at E2522, Dr Sheppard records: Cyclones and Earthquakes Posford do go on a lot about cyclones and earthquakes, which is validly criticised by Jenness.
+Whatever weather changes will occur, cyclones (and certainly earthquakes) are not expected to change at all.
+Jenness is correct to say that Posford went overboard unjustifiably on this. (Posford should as was recommended to them have made more on sea level rise and warming, which is touched on, and would have been unassailable.) Dr Sheppards view about cyclones quite probably led to the removal of the reference to cyclones from the executive summary to the body of the text.
+The final bracketed sentence also speaks against any idea that Posford were engaged in a whitewash, or that the consultants were not acting independently.
+Dr Sheppard went on (E2522): Erosion and overtopping Jenness says that there is no need to defer any plans (for resettlement) before rates of island erosion are established.
+That is plain daft, unless all constructions are moveable.
+Jenness says that lack of overtopping damage in the past means that estimates of increased overtopping in future are exaggerated.
+The climate is changing, and the past is now no guide to the future in this respect.
+Jenness acknowledges elsewhere that climate change is occurring and that things may get worse.
+But he says that this is no reason to not develop.
+All that is needed is that development should use careful land use planning and management with strong components for costal management and reef health.
+What does he mean? This sweeps a huge issue (the issue) under the carpet.
+The only land which will be above projected flooding is a rim around part of most islands.
+He says it should not preclude resettlement of the Chagos in a prudently planned fashion.
+Where?
+A final quotation from Dr Sheppard reads (E2524): Jenness has much to say about the omissions on health, economics etc.
+Some are valid.
+But he really should go and stand on one of the islands, holding a copy of the islands profile above sea level, before he says Land loss may be inevitable and should be planned for.
+Loss of groundwater can be planned for . and . can be managed with modest investment.
+This may be true for, say 20 years.
+But beyond that we are talking here not about a little loss of a beach, but possibility of broaching of the rims and flooding of large inland areas.
+The upshot is in my opinion that there is no basis for regarding as suspicious or actually or potentially significant in any way either (a) the removal in the final version of paragraph 1.8 of the reference to the possibility of a small northward shift of the cyclone belt or (b) the inclusion of (i) a reference to increased levels of flooding, accelerated erosion and seawater intrusion into freshwater sources or (ii) the predicted increase in severity of storm impacts, including storm surge floods and shore erosion.
+I can take the other three key amendments, [B], [C] and [D] quite briefly.
+The first, a change in respect of future sea water level rises from a range of 2 9mm per year to an average of 5mm a year cannot conceivably be sinister or significant, or, if it had been known to or focused on by any decision maker, have led to a change in any ministerial decision.
+The second is a complaint that the draft executive summary referred to the general increase in storminess that may accompany climate change (E2397) while the final executive summary contained a paragraph starting Increased storminess (E2498).
+The Summary Note does not record that the latter paragraph continues the Chagos islands have a small storm surge envelope thus even small changes in sea level and storm surge height implies an increase in the area threatened with inundation.
+To my mind, there is therefore nothing in the difference.
+But, if there is, it is clear from Dr Sheppards views, already set out, that he would support the reported threat.
+The third and last point relates to a new paragraph noting that it is predicted that climate change may have a severe impact on the abundance and distribution of reef fish populations (E2499).
+The complaint is that the body of the report is expressed in more nuanced terms.
+Again, it is clear that Dr Sheppard took a clear view of the likely effects of climate change, and there is no reason to suspect that the final version represented anything other than a genuine prediction.
+Any difference in nuance should also have been apparent and, whether or not so, cannot conceivably support an argument that the minister acted irrationally in making the Orders he did on the basis of the final report.
+Heads (ii) and (iii)
+These two heads face in opposite directions.
+Both aim at undermining the stage 2B report.
+But head (ii) does so by relying on Dr Sheppard and his alleged endorsement of criticisms by Mr Jenness, the resettlement anthropologist instructed on behalf of Mr Bancoult to consider the stage 2B report in autumn 2002, while head (iii) suggests that Dr Sheppards input into the stage 2B report lacked objectivity and was unreliable.
+As to the latter suggestion, the applicant has through his representatives been prepared for a long time to cast wide ranging aspersions on a large number of people, including Dr Sheppard.
+But I do not think that they are made good, and that includes the suggestions that Dr Sheppard allowed his interest in preserving coral reefs to influence the advice he gave government.
+On the contrary, Dr Sheppard comes across in the material as a forthright and very independent character, not hesitating to comment bluntly on those working for government or for the applicant: see eg his email of 14 May at E2406, comments of 14, 30 and 31 May 2002 set out or reported at E2409 2422, E2450 2451 and E2460 2464 and further comments on Mr Jenness (some cited above) at E2518 2525.
+I also see no basis for regarding the stage 2B report as unreliable or for treating reliance on it as irrational in 2004, simply because Dr Sheppard had been the sole outside reviewer instructed by the executive, in addition to Mr Little, who had been appointed as FCO Feasibility Study Project Manager.
+As to the former suggestion, although Dr Sheppard agreed with aspects of Mr Jennesss report, it is apparent from his comments on that report which I have already set out that he disagreed fundamentally with any suggestion that Mr Jennesss report undermined the conclusions in the stage 2B report, and that he would himself have gone, if anything, further in discounting the risks of climate change that underlay those conclusions.
+Conclusion relating to the Rashid documents
+The essential issues, as summarised in Mr Fitzgerald QCs speaking note, are (i) whether due disclosure of the Rashid documents would have led to a challenge by Mr Bancoults representatives to the stage 2B report in the original judicial review proceedings, and, if so, (ii) whether it is likely that such a challenge would have resulted in a different outcome in the House of Lords on the rationality of the removal by the 2004 Constitution Order of the right of abode.
+The two questions are of course inter connected, since any decision whether or not to challenge the stage 2B report would have depended on an assessment of the prospects of such a challenge succeeding.
+As to the first question, some caution is in my view required before accepting outright the submission that it is certain that there would have been such a challenge.
+Mr Bancoults advisers had in December 2005 had disclosure of Mr Hamiltons extensive letter dated 23 May 2002 evidencing the nature of the FCOs involvement in and input into the process of re drafting and finalisation of the report (see paras 20 and 37 38 above).
+Mr Bancoults solicitors felt able, from January 2006 onwards, to make serious allegations about lack of independence of the stage 2B report as well as about allegedly significant alterations between the draft and final versions of the preliminary study from January 2006 onwards (see eg E1472 and E1487).
+Yet, at the same time, the applicant through Sydney Kentridge QC was expressly disclaiming before the Divisional Court any challenge to the study or its outcome: see E1482.
+Mr Bancoults advisers did not at that stage think they could or should even try to overcome the first hurdle.
+Further, they maintained this attitude for years, including after disclosure in October 2010 of the email dated 29 May 2002 (paras 21 and 39 40 above), despite continuing to make serious allegations in correspondence of lack of independence and invalidity.
+For present purposes, I am however prepared to assume without deciding that a challenge would have been made, and to proceed directly to a consideration of the second.
+In Mr Fitzgeralds formulation, that is whether it is likely that such a challenge would have resulted in a different outcome but in my judgment it makes no difference ultimately whether the test should be formulated at the slightly higher level of a requirement to show a probability that it would have done so or at the perhaps slightly lower level of whether it may well have done so.
+The second question reduces itself ultimately to a question whether it is probable or likely, or whether it may well be, that the material now available would have led the court (at whichever level the case was being considered) to conclude that it was irrational or unjustified for the Secretary of State to accept and act on the General Conclusions set out in the stage 2B report.
+Those were the General Conclusions on which the Secretary of State acted when making, and which the majority in the House of Lords regarded as justifying his decision to make, section 9 of the 2004 Constitution Order.
+In addressing this question, I proceed on the basis that it is necessary and appropriate to treat the Secretary of State, when deciding in June 2004 whether to make section 9 of the 2004 Constitution Order, as having available to him or within his knowledge all the contemporary material which in fact existed in the possession of the executive.
+That includes the draft report and all the exchanges taking place and advice received in the process of its redrafting and finalisation.
+Is it either probable or likely, or may it well be, that the court would have concluded that the material now shown to have been within the executives possession or knowledge at the relevant date in June 2004 undermines the rationality or justifiability of the Secretary of States decision to rely on such Conclusions?
+The answer in my opinion is clear.
+The General Conclusions, and the section on Vulnerability immediately preceding them remained unaltered from the draft to the final stage 2B report.
+There is no probability, likelihood or prospect (and, for completeness, in my view also no real possibility) that a court would have seen or would see, in the process of preparation, re drafting and finalisation of the stage 2B report and in the associated material which can now be seen to have existed, anything which could, would or should have caused the Secretary of State to doubt the General Conclusions, or which made it irrational or otherwise unjustifiable to act on them in June 2004.
+On that basis, the application to set aside the House of Lords judgment by reference to the Rashid and other documents disclosed late must fail.
+Additional evidence
+The first head consists of the Analysis Note.
+This, as its name indicates, consists essentially of an analysis of primary material and/or submissions on it.
+Its development has taken place over years starting originally it seems as early as 2006 and continuing up to at least 2012.
+We have it in various forms.
+It is not conceived or presented as evidence, though I have taken its contents into account in considering the parties respective cases and submissions on the material which is admissible and relevant.
+The second head consists of information provided by Mr Stephen Akester, who, after their chance meeting, wrote to Mr Gifford a letter dated 11 February 2011 explaining the role of his company, MEP, as a sub contractor to Posford.
+MEP was principally concerned with water resources and fisheries, and organised the site visit to the Chagos in early 2001.
+Mr Akester explains that his own experience was in regional development.
+In his letter, Mr Akester said that after the site visit, MEP reported and it appears provided Posford with the three development scenarios, after which Posford and he had no further involvement.
+But he explained: Because I and our team considered that resettlement was feasible, I prepared a draft of the different levels of development that would be appropriate to support such resettlement, given the fragility of the islands and bearing in mind that there had, in contravention of the normal practice of consulting potential settlers, been no consultation with the Chagossians themselves (this was excluded from our terms of reference).
+After submitting our report via PH to BIOT, I was surprised that we heard nothing further concerning the text of it either from PH or from BIOT.
+I was not invited to any further meetings with BIOT, did not receive any draft prior to its critique by BIOT on 23 May 2002, and heard nothing more about the terms of the report until the final Executive summary had been approved by BIOT and sent to me.
+By then, it was of course too late to make any further comments.
+We were therefore unable to modify the terms of the General Conclusion which I find to be wrong in its claim that resettlement involves obstacles which cannot be overcome by reasonable measures.
+Such issues are inherent in small island development and are regularly resolved within reasonable cost parameters.
+That Posfords sub contractor may have disagreed with conclusions drawn by Posford is a matter outside any conceivable sphere of information or knowledge that the Secretary of State or executive may be treated as having had at any material time.
+The material is thus correctly analysed as potential fresh evidence.
+But fresh evidence going to what issue? The ultimate issue is whether the Secretary of State was justified in acting as he did on the material which was or should have been available to him at the time, not whether his decision could be justified on a revisiting of the whole issue of resettlement in the light of any other material which either party could adduce now.
+In any event, the views expressed by Mr Akester in the letter dated 11 February 2010 cannot meet the test, however relaxed the terms in which this might be expressed, for setting aside the House of Lords judgment, even if they were material to any issue.
+I say this quite apart from the fact that, despite complaints regarding suggested lack of independence, no step was taken to set aside that judgment in the years following receipt of such letter, until after the Rashid documents had been disclosed.
+The third piece of evidence is a further review of the report, prepared for the applicant by Professor Paul Kench of the University of Auckland dated 5 October 2012.
+According to the applicants case: He concludes that not only were the findings of the ocean and coastal processes section in the feasibility study unsound, because of lack of specialist understanding and methodological flaws, but also that the relevant summary (section 1.6) in the Executive Summary was not supported by those findings.
+This conclusion casts grave doubt on the pivotal findings of the feasibility study with regard to increased risk of sea water flooding, which influenced the decision of the majority in the
+House of Lords
+Like the information in Mr Akesters letter, this material does not go to any issue relevant to the question whether the Secretary of State acted rationally in the light of the material to be treated as available or within his or the executives knowledge in June 2004.
+It would be relevant if the issue were whether the conclusions in the stage 2B report were sustainable today.
+But that is not the issue.
+I add for completeness that I am also unpersuaded that any good reason has been shown for not obtaining such an experts report at any time prior to the disclosure of the Rashid documents, having regard to the serious allegations of inadequacy and lack of independence of the report that were being made at such time, both before and after receipt of Mr Akesters letter dated 11 February 2010.
+The fourth piece of evidence is Posfords memorandum dated 7 March 2002, the information in which I am, for reasons already explained, prepared to take into account as material within the executives knowledge, but which does not persuade me that there is any basis for setting aside the House of Lords judgment.
+Other relevant considerations
+There is one other factor, which would have been both relevant and in my opinion decisive, had I reached a conclusion that the threshold test for setting aside was or might otherwise have been satisfied.
+The applicant submits that nothing other than a reversal of the House of Lords decision (in so far as it proceeded on the basis that the stage 2B report could be relied on) will overturn the constitutional bar on their return to the Chagos.
+But there has been a new 2104 2015 feasibility study, published by KPMG in March 2015, which assesses the risks differently from the prior report and finds that, at some cost and taking into account (for the first time) the possibility of resettlement on Diego Garcia itself (E925 926), there would be scope for supported resettlement: see E917 918.
+In practical terms, the background has shifted, and logically the constitutional ban needs to be revisited.
+As Mr Steven Kovats QC expressly accepted during oral submissions, it is open to any Chagossian now or in the future to challenge the failure to abrogate the 2004 Orders in the light of all the information now available.
+That is in my opinion a factor militating strongly against the setting aside of the House of Lords judgment and ordering a rehearing either of the whole appeal or of the limited issue whether it was rational for the Secretary of State to make the 2004 Constitution Order in the light of the material available to him or the executive generally in 2004.
+Even the latter issue could lead to further lengthy litigation and, quite possibly, a completely fresh hearing at first instance about a factually superseded study report.
+There has been a yet further development consisting of the declaration by the Secretary of State on 1 April 2010 of the Marine Protected Area (MPA) in the high seas surrounding the Chagos Islands.
+That declaration is the subject of a challenge by Mr Bancoult by way of judicial review in Bancoult (No 3).
+The challenge failed before the Divisional Court on 11 June 2013, [2013] EWHC 1502 (Admin), and before the Court of Appeal on 23 May 2014, [2014] EWCA Civ 708.
+It is now the subject of a combined application to the Supreme Court for permission to appeal and for a protective costs order without which it is said that it will not be possible to pursue any appeal.
+The Secretary of States notice of objection dated 6 February 2015 in respect of this application supports the Court of Appeals statement that the MPA (the only practical effect of which according to the Divisional Court was to prohibit commercial fishing in BIOT waters) had no meaningful or real effect at all on the economic, cultural or social development of BIOT, basically because there never had been commercial fishing there and there is no resident population in BIOT outside the US naval defence facility.
+Having said that, the notice goes on to state that: The MPA does not preclude resettlement in the event that Her Majestys government concludes that it is appropriate to permit and/or support resettlement of the islands.
+Whilst that decision is being considered in the light of an ongoing Feasibility Study commenced in January 2014 (and expected to be the subject of an imminent report by a panel of experts), the possibility of commercial fishing within the BIOT by a resident population is not realistic without resettlement and without a resident population.
+The Court of Appeal was right to note that it was therefore the prohibition on residential settlement on the BIOT which directly impacted upon the economic, social and cultural development of the BIOT.
+But that was not the decision that was under challenge in Bancoult (No 3).
+That decision was unsuccessfully challenged in Bancoult (No 2), culminating in a
+decision of the House of Lords
+These passages confirm that resettlement is not precluded by the MPA, if the outcome of the new KPMG feasibility study of the ensuing public consultation on resettlement options, and of the ongoing governmental policy review persuades the government that it is appropriate to permit and support resettlement.
+If the outcome of that study, consultation and review does not persuade the government, then Mr Bancoult will be able, in principle, to apply to challenge the governments refusal to permit and/or support resettlement as irrational, unreasonable and/or disproportionate, whichever may in context be the right test, by way of judicial review.
+If the MPA does prove to prejudice or limit the prospects of resettlement or the nature of any resettlement that may be permitted by the government or on judicial review by the Court, that will be a result of the MPA, which can only be avoided or removed by a successful challenge in the Bancoult (No 3) proceedings.
+Conclusion
+For all the reasons I have given, this application to set aside the House of Lords judgment and to direct a rehearing of the appeal to the House of Lords in Bancoult (No 2) fails in my opinion and must be dismissed.
+LORD CLARKE:
+I am in many ways sympathetic to the case advanced by Mr Bancoult.
+Indeed, I was a member of the Court of Appeal which decided the appeal in his favour.
+In these circumstances it is not perhaps surprising that I much prefer the reasoning of the minority to that of the majority in the House of Lords.
+It is however common ground that the question now before the court is not whether the majority were correct but whether the issue should be re opened.
+I have read the judgments of Lord Kerr and Lady Hale on one side and of Lord Mance, supported by Lord Neuberger, on the other.
+I have reluctantly concluded that Lord Mances analysis is to be preferred and that the application should be refused for the reasons he gives.
+One of the factors which has led me to that conclusion is that, as I see it, that is not the end of the road.
+I agree with Lord Mances conclusion in para 72 that there is a critical factor which is in any event conclusive.
+The background to much of the debate between the parties had been the feasibility of the Chagossians returning to the Chagos Islands.
+The 2014 2015 feasibility study considers, among other things, the possibility of resettlement on Diego Garcia.
+Given that new factor, the study concludes that there would be scope for supported resettlement.
+As Lord Mance puts it, the background has now shifted and logically the constitutional ban needs to be revisited.
+The outcome of the new (and ongoing) feasibility study will no doubt consider the prospects of resettlement.
+In the light of the results of the study the government will no doubt consider whether it is (as Lord Mance puts it at para 75) appropriate to permit and support resettlement.
+It was expressly accepted on behalf of the government that it will be open to any Chagossian to challenge the failure to abrogate the 2004 Orders in the light of all the information which is now available or becomes available in the light of the ongoing study.
+For example, it will, at any rate in principle, be open to Mr Bancoult to institute judicial review proceedings to challenge any future refusal of the government to permit or support resettlement as, in Lord Mances words irrational, unreasonable or disproportionate.
+In all these circumstances I do not think that it would be right now to set aside the judgment of the House of Lords and to direct a rehearing.
+It would be disproportionate to do so without having regard to the new circumstances taking into account the possibility of resettlement on Diego Garcia.
+LORD KERR: (dissenting) (with whom Lady Hale agrees)
+Introduction
+The Chagos Islands are in the middle of the Indian Ocean.
+Since the early 19th century they had been part of the British colony of Mauritius but they were detached from that country before Mauritius gained its independence in 1968.
+The islands consist of a group of coral atolls.
+The largest of these, Diego Garcia, has a land area of approximately thirty square kilometres.
+To the north of this are Peros Banhos (thirteen square kilometres) and the Salomon Islands (five square kilometres).
+In 1962 a Seychelles company acquired the coconut plantations on these three islands.
+The gathering of coconuts and the extraction and sale of the copra or kernel from them was the main form of employment for the inhabitants.
+After the acquisition of the plantations, it appears that the company exercised a paternalistic, even feudal, control of the islands affairs.
+Company officers acted as justices of the peace and generally administered most aspects of civilian life.
+Partly as a consequence of that, Chagossians had what might be considered to be a simple existence.
+They were largely illiterate and their skills were confined to those that the activities on the islands required.
+But it was an existence which they valued and, especially when contrasted with what transpired after 1971, one which was unquestionably worthwhile.
+Apart from indigenous inhabitants, some workers on the plantations came from Mauritius and the Seychelles.
+But the settled population of the three islands was some 1,000 in 1962.
+Many of the families which comprised that population had lived in the islands for generations.
+Their living conditions, although not at all affluent, were far from deprived.
+Every family had a house and some land.
+They grew vegetables on the land and kept poultry or pigs to supplement the imported provisions which the company supplied.
+Some fishing also took place.
+All who wanted to have and were capable of employment had a job.
+This was principally in the copra industry but employment was also to be had in construction, boat building and domestic service.
+The Chagossians therefore enjoyed what Lord Hoffmann (in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No2) [2009] AC 453) described as a rich community life.
+World affairs were soon to interrupt that simple but rich community life.
+Events are well described in para 6 of Lord Hoffmanns speech: Into this innocent world there intruded, in the 1960s, the brutal realities of global politics.
+In the aftermath of the Cuban missile crisis and the early stages of the Vietnam War, the United States felt vulnerable without a land based military presence in the Indian Ocean.
+A survey of available sites suggested that Diego Garcia would be the most suitable.
+In 1964 it entered into discussions with Her Majestys government which agreed to provide the island for use as a base.
+At that time the independence of Mauritius and the Seychelles was foreseeable and the United States was unwilling that sovereignty over Diego Garcia should pass into the hands of an independent, non aligned government.
+The United Kingdom therefore made the British Indian Ocean Territories Order 1965 (the BIOT Order) which, under powers contained in the Colonial Boundaries Act 1895 (58 & 59 Vict c 34), detached the Chagos Archipelago (and some other islands) from the colony of Mauritius and constituted them a separate colony known as
+In 1966, in an exchange of notes between the British and United States governments, the United Kingdom agreed in principle to make BIOT available to the United States for defence purposes.
+Later in the same year it was agreed that a military base on Diego Garcia would be established and that the United States would be allowed to occupy the other islands if they wished.
+In 1967, the UK government bought all the lands held by the Seychelles company.
+Although the company was granted a lease which allowed it to continue to run the coconut plantations, it was stipulated that this would come to an end whenever the United States needed the islands.
+In 1970 the US government gave notice that it would need Diego Garcia in July 1971 and, acting under powers granted to him by the British Indian Ocean Territories Order 1965, the Commissioner for BIOT promptly made the Immigration Ordinance 1971.
+It provided (in section 4(1)) that no person shall enter the territory or, being in the territory, shall be present or remain in the territory, unless he is in possession of a permit [issued by an immigration officer].
+Even before the making of this Ordinance, the UK authorities were active in preparing for the occupation of Diego Garcia by the United States.
+Between 1968 and 1971 they secured the removal of the inhabitants of the island, mainly to Mauritius and the Seychelles.
+A small population remained for a short time on Peros Banhos and the Salomon Islands, but they too were evacuated by the middle of 1973.
+The islanders were told that the company was closing down its activities and that unless they accepted transportation elsewhere, they would be left without supplies.
+In effect, therefore, although they were not forcibly removed, they were given no choice but to leave their homes.
+The Chagossians were resettled mainly in Mauritius.
+There they were largely left to their own devices.
+Since that country suffered high unemployment and considerable poverty, the conditions in which the displaced Chagossians were required to live, principally in the slums of St Louis, were miserable and squalid.
+It is now beyond question that their interests had not been considered by the British authorities to any extent.
+Indeed, one might say that the removal of the Chagossians from their homes was cynically engineered by ensuring that the Seychelles company could no longer continue its commercial activities and that the inhabitants means of livelihood was thereby brought to an inevitable end.
+As Lord Hoffmann put it (in para 10 of his speech), the removal and resettlement of the Chagossians was accomplished with a callous disregard of their interests.
+Legal proceedings
+In 1975 proceedings were issued by a former inhabitant of Diego Garcia, Michael Vencatessen, against the Foreign Secretary, the Defence Secretary and the Attorney General.
+Damages were claimed for intimidation and deprivation of liberty associated with the circumstances in which he had been required to leave Diego Garcia.
+In negotiations between the UK government and Mr Vencatessens advisers, the latter were treated as acting on behalf of all the Chagossians.
+An initial purported settlement of the claim failed to win the approval of the Chagossian community and negotiations resumed in which the Mauritius government was also involved.
+Finally in July 1982 it was agreed that the UK government would pay 4m into a trust fund for the Chagossians, set up under a Mauritian statute.
+The agreement was signed by the two governments in the presence of Chagossian representatives.
+It provided that individual beneficiaries should sign forms renouncing all their claims arising out of their removal from the islands.
+The vast majority of the displaced persons signed.
+Matters did not end there.
+On 30 September 1998 Mr Bancoult applied for judicial review of the Immigration Ordinance 1971 and a declaration that it was void because it purported to authorise the banishment of British Dependent Territory citizens from the Chagos Islands.
+He also sought a declaration that the policy which prevented him from returning to and residing in the territory was unlawful.
+The UK government reacted to these proceedings by commissioning an independent feasibility study to examine whether it would be possible to resettle some of the Chagossians on Peros Banhos and the Salomon Islands.
+Return to Diego Garcia was regarded as unfeasible because, under the arrangements made with the UK government, the United States was entitled to occupy that island until 2016 at least.
+On 3 November 2000 the Divisional Court (Laws LJ and Gibbs J) gave judgment in favour of Mr Bancoult: R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067 (Bancoult (No 1)).
+An order was made quashing section 4 of the Immigration Ordinance 1971 as ultra vires.
+The government did not appeal this decision.
+Instead the Foreign Secretary issued a statement in which he referred to the feasibility study, Phase 2 of which was, he said, well under way.
+As a result of the courts judgment, the statement said, the feasibility of resettling the Chagossians took on a new importance and a new Ordinance allowing them to visit the outer islands would be made.
+On the same day that the statement was issued, the commissioner revoked the 1971 Immigration Ordinance and made the Immigration Ordinance 2000.
+This largely repeated the provisions of the previous Ordinance but contained a new section 4(3) which provided that the restrictions on entry or residence imposed by section 4(1) should (with the exception of Diego Garcia) not apply to anyone who was a British Dependent Territories citizen by virtue of his connection with BIOT.
+Some Chagossians visited the outer islands to tend family graves or to re familiarise themselves with the lands that they had been forced to leave.
+No one attempted to resettle there.
+Before the feasibility study was published, a group action was begun on behalf of the Chagossians.
+This claimed compensation and restoration of the property rights of the islanders and declarations of their entitlement to return to all the Chagos Islands and to measures facilitating their return.
+The action was taken against the Attorney General and other ministers.
+On 9 October 2003 Ouseley J in Chagos Islanders v Attorney General [2003] EWHC 2222 struck out this action on the grounds, inter alia, that the claim to more compensation after the settlement of the Vencatessen case was an abuse of process, and that the claims were in any case statute barred.
+An application for leave to appeal against that order was refused on 22 July 2004 (Dame Elizabeth Butler Sloss P, Sedley and Neuberger LJJ) [2004] EWCA Civ 997.
+The feasibility report was published in June 2002.
+Its findings were summarised by Lord Hoffmann in para 23 of his speech: It concluded that agroforestal production would be unsuitable for commercial ventures.
+So there could be no return to gathering coconuts and selling copra.
+Fisheries and mariculture offered opportunities although they would require investment.
+Tourism could be encouraged, although there was nowhere that aircraft could land.
+It might only be feasible in the short term to resettle the islands, although the water resources were adequate only for domestic rather than agricultural or commercial use.
+But looming over the whole debate was the effect of global warming which was raising the sea level and already eroding the corals of the low lying atolls.
+In the long term, the need for sea defences and the like would make the cost of inhabitation prohibitive.
+On any view, the idyll of the old life on the islands appeared to be beyond recall.
+Even in the short term, the activities of the islanders would have to be very different from what they had been.
+In light of the feasibility report the government decided that it would not support resettlement of the islands.
+In any event, in their perception, Diego Garcia would have to be excluded from any resettlement plans because of what was considered to be the UKs treaty obligations to the United States.
+Added to these considerations were reports of planned direct action by various groups who intended to launch landing expeditions to the islands.
+These factors combined to prompt the government to restore full immigration control.
+The British Indian Ocean Territory (Constitution) Order 2004 (the Immigration Order) was made.
+This included section 9 which provided: (1) Whereas the territory was constituted and is set aside to be available for the defence purposes of the government of the United Kingdom and the government of the United States of America, no person has the right of abode in the territory. (2) Accordingly, no person is entitled to enter or be present in the territory except as authorised by or under this Order or any other law for the time being in force in the territory.
+A challenge to the validity of section 9 by way of judicial review was made.
+The Divisional Court [2006] EWHC 1038 (Admin), paras 120 122 held that it was invalid because its rationality had to be judged by the interests of BIOT.
+That meant the people who lived or used to live on BIOT.
+The Court of Appeal (Sir Anthony Clarke MR, Waller and Sedley LJJ) [2008] QB 365 affirmed that decision but on somewhat different grounds.
+The Master of the Rolls and Sedley LJ held that there had been an abuse of power in enacting the 2004 Order because the interests of the Chagossians had not been taken into account.
+All three members of the Court of Appeal agreed that the Foreign Secretarys statement after the judgment in Bancoult (No 1) and the Immigration Ordinance 2000 constituted promises to the Chagossians which gave rise to a legitimate expectation that, in the absence of a relevant change of circumstances, their rights of entry and abode in the islands would not be revoked and there had been no such change.
+The Court of Appeals decision was appealed to the House of Lords and by a majority (Lord Hoffmann, Lord Rodger and Lord Carswell, Lord Bingham and Lord Mance dissenting) R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] AC 453 the appeal was allowed and the decision of the Court of Appeal was reversed.
+The present application
+By this application, Mr Bancoult, the respondent in the appeal before the House of Lords, seeks to have its decision set aside on the ground of material non disclosure.
+He claims that documents held by the defendant which should have been produced in the course of the earlier proceedings are likely to have made a significant difference to the outcome of those proceedings.
+Before examining that claim, it is necessary to say something about the various stages and phases that were planned for the feasibility study and how those stages and phases changed in the course of its progress.
+It will also be necessary to consider the opinions of the House of Lords before assessing whether disclosure of the documents is likely to have affected its decision.
+The various stages of the feasibility study and the process of disclosure
+The report on stage 1 of the feasibility study had been published in June 2000 just before the hearing of Bancoult (No 1).
+It was, the applicant claims, largely in favour of resettlement.
+It identified fishing as a major means of subsistence for a resettled population.
+Shortly after the Foreign Secretarys statement following the decision in Bancoult (No 1), the stages of the feasibility study were re named.
+Stage 1 was now referred to as the preliminary study.
+Phase 2A was to be a technical report on hydrogeological monitoring on the Salomon and Peros Banhos atolls.
+A more substantial Phase 2B was to be a general examination of some pre requisites to re settlement, prior to the full cost benefit analysis that was originally intended to come at stage 2 but which would now be a stage 3 of the report.
+Phase 2A, the hydrogeological survey, was started in 2001 but was never published as a separate report, its work being subsumed into Phase 2B.
+The latter phase was begun in late 2001 and completed in mid 2002.
+A report on it was published in July 2002.
+The full cost benefit analysis, contemplated as stage 3 was never carried out.
+Phase 2B reported that resettlement would be precarious and that its cost would be prohibitive.
+The government decided not to proceed with the planned stage 3 (the cost benefit analysis).
+It terminated consideration of resettlement, and introduced the 2004 Order prohibiting residence on the islands.
+Richard Gifford was a partner in the firm of solicitors which acted for Mr Bancoult in the litigation which culminated in the decision of the House of Lords.
+In advance of the hearing before the Divisional Court he sought disclosure of the drafts of the three phases of the feasibility study and of any comments made on these by officials.
+Correspondence was exchanged with the Treasury Solicitor in which the relevance of some of the material sought was disputed but it is unnecessary to review this.
+Comments on the draft of the preliminary study could not be located at first.
+They were then discovered and supplied.
+Mr Gifford claims that they revealed clear evidence of a crude re writing of the important General Conclusion from an entirely positive statement to a qualified one.
+It might be thought that since the document which is said to have prompted the 2004 Order was the report on the Phase 2B study, the re writing of the preliminary reports conclusion is of no particular importance.
+The fact that it was rewritten, however, when set against the now known position that there was extensive rewriting of the draft Phase 2B report may indicate a greater need for caution in examining the reasons for this rewriting.
+On 6 December 2005 the Treasury Solicitor had written to Mr Gifford stating that draft reports for the preliminary feasibility study and the Phase 2B study report had been located and were available for inspection.
+In a letter of 13 December, however, this statement was corrected and it was stated that only a draft of the preliminary study had been found.
+No draft for the Phase 2B report had been found.
+This was confirmed in a letter of 23 December 2005.
+During the hearing before the Divisional Court a number of inquiries were made by the judges of the defendant as to whether all relevant documents had been disclosed.
+The court was informed that if any further relevant documents were found these would be disclosed.
+Subsequently, on 3 February 2006, Mr Bancoults solicitor wrote to the defendant, specifically asking for the disclosure of all documents and materials which demonstrate and support your counsels assertion that resettlement of the Chagos Islands is not feasible.
+This was met with the response that the material was not relevant but, when the appeal against the Divisional Courts decision was pending, the UK Chagos Support Association asked for a copy of the draft of the Phase 2B report, and was informed by letter from the Foreign and Commonwealth Office on 6 October 2006 that no copy of the draft report had been retained on their files.
+This was confirmed on 9 November 2006, in response to a Freedom of Information request.
+The applicant claims that, faced with the absence of relevant documentation relating to the production and acceptance of the feasibility study, it was considered that a challenge to the reliability of the study could not be made.
+Counsel for the claimant in the Court of Appeal therefore stated that the governments entitlement to terminate the feasibility study after the Phase 2B report and to decline to support a return to the islands was not contested.
+In view of the appellants knowledge at that time, I do not consider that this was in any sense unreasonable.
+In any event, the stance taken by counsel did not make the feasibility study irrelevant to the case, however.
+The report remained relevant as being the alleged good reason relied on for not proceeding with resettlement and for denying Chagossians the right to return.
+But the challenge to the governments decision would have been, the applicant claims, of a very different stripe, if the existence of highly critical comments on the Phase 2B report had been known.
+Then the rationality of the decision not only not to fund resettlement but to deny Chagossians the right to return to the islands would have been strongly contested.
+That challenge would have been founded directly on the lack of reasonableness in relying on a report which was so obviously flawed and open to criticism.
+The existence of undisclosed documents first became known in the course of the hearing before the High Court of a case called R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 3) [2013] EWHC 1502 (Admin).
+That case concerned the creation of a no take marine protected reserve around the Chagos Islands on 1 April 2010.
+In those proceedings Mr Bancoult challenged the legality of the creation of the reserve.
+Exhibited to a witness statement filed on behalf of the Foreign Secretary (the defendant in the proceedings) was a bundle of documents.
+The statement to which the documents were exhibited was that of Zaqia Rashid, a solicitor in the Treasury Solicitors department.
+She observed that she produced the documents without comment as to the reasons that they had not been disclosed earlier.
+Before Ms Rashids statement in Bancoult (No 3) had been received, Mr Bancoult had made a number of freedom of information requests to the Foreign and Commonwealth Office concerning drafts of the feasibility reports.
+He was not satisfied with the replies that he received and lodged a complaint with Information Commissioner and a subsequent appeal to the First tier Tribunal General Regulatory Chamber Chagos Refugees Group (in Mauritius) v Information Comr (Case EA/2011/0030).
+The hearing of the appeal took place after the documents attached to Ms Rashids statement had been received and was therefore principally concerned with two memoranda which had not been included in those documents.
+It also touched on explanations given for the failure to disclose the documents, however.
+The Foreign Office explained that this was due to a combination of factors.
+There had been a clerical oversight in relation to some of these and a recall of archived material which was more rigorously reviewed in the course of the Bancoult (No 3) litigation led to others being disclosed.
+What have become known as the Rashid documents (ie those exhibited to Ms Rashid statement) contained a draft version of the executive summary of the Phase 2B feasibility study; and a covering letter from Posford (Royal) Haskoning (the consultants appointed to carry out the study) forwarding the remaining draft volumes.
+They also contained a number of documents generated during the preparation and finalisation of the feasibility study.
+These included (1) documents relating to the scope of work to be undertaken both for the first part of the original two stage study, later re named the preliminary study under the Phase 2A contract and under the Phase 2B contract; (2) a memorandum of a meeting between BIOT officials and the consultants; (3) correspondence between the FCO and an external scientific adviser in relation to the Chagos Archipelago, Dr Charles Sheppard; (4) correspondence between the Foreign Office and the consultants and (5) details of the amendments to the draft Phase 2B report.
+The House of Lords decision
+The appeal to the House of Lords from the Court of Appeals decision ranged over three principal areas, only one of which is relevant to this application.
+The first concerned the scope of the courts power to review the validity of an Order in Council legislating for a colony.
+What were described as the extreme positions adopted by the parties were both rejected by Lord Hoffmann.
+It had been argued on behalf of the government that no review of the making of an Order in Council was legally legitimate since this involved the exercise of a legislative power.
+On behalf of the Chagossians it was claimed that the right of abode in ones homeland was so sacred that the Crown did not have power to remove it in any circumstances.
+Lord Hoffmann decided that there was a power of review and that the main point in the appeal was the application of the ordinary principles of judicial review (para 52).
+The question whether there had been any contravention of those principles was the second principal area involved in the appeal and it is this ground which underpins the current application.
+I will consider it presently.
+The other two members of the majority, Lord Rodger and Lord Carswell, agreed with Lord Hoffmann on his rejection of the extreme positions of the parties on whether the government had power to make the Order.
+They also agreed that the courts had power to review the making of the 2004 Order on the normal judicial review grounds (paras 105 and 122).
+The third area of dispute was whether a legitimate expectation on the part of the Chagossians had been created by the Foreign Secretarys statement and the 2000 Ordinance.
+Lord Hoffmann held that this argument failed at the first hurdle that there had to be a promise which was clear, unambiguous and devoid of relevant qualification per Bingham LJ in R v Inland Revenue Comrs, Ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545, 1569.
+Lord Rodger and Lord Carswell agreed.
+In powerful dissenting speeches, Lord Bingham and Lord Mance concluded that the government did not have power by Order in Council to exclude the Chagossians from their homeland (Lord Bingham at para 71 and Lord Mance at para 160).
+They also held that the Foreign Secretarys statement and the making of the 2000 Ordinance created a legitimate expectation on the part of the Chagossians that they would be allowed to return to the outer islands unless or until the United Kingdoms treaty obligations might at some later date forbid it Lord Bingham at para 73.
+These findings and their conflict with the conclusions of the majority are not relevant to this application.
+The findings of Lord Bingham and Lord Mance in relation to the rationality of the decision to make the 2004 Order most certainly are, however.
+But before examining their reasons for determining that that decision was irrational, it is necessary to look at the speeches of the majority in order to see precisely why they considered that the charge of irrationality had to fail.
+The summary of the findings of the feasibility report contained in para 23 of Lord Hoffmanns speech has been set out above (para 16).
+This provided the backdrop to his examination of the issue of irrationality.
+Having accepted Sir Thomas Bingham MRs statement of principle in R v Ministry of Defence, Ex p Smith [1996] QB 517, 554, to the effect that where a measure affects fundamental rights or has profoundly intrusive effects, the courts will anxiously scrutinise the decision to introduce it, Lord Hoffmann said this at para 53: However, I think it is very important that in deciding whether a measure affects fundamental rights or has profoundly intrusive effects, one should consider what those rights and effects actually are.
+If we were in 1968 and concerned with a proposal to remove the Chagossians from their islands with little or no provision for their future, that would indeed be a profoundly intrusive measure affecting their fundamental rights.
+But that was many years ago, the deed has been done, the wrong confessed, compensation agreed and paid.
+The way of life the Chagossians led has been irreparably destroyed.
+The practicalities of today are that they would be unable to exercise any right to live in the outer islands without financial support which the British government is unwilling to provide and which does not appear to be forthcoming from any other source.
+During the four years that the Immigration Ordinance 2000 was in force, nothing happened.
+No one went to live on the islands.
+Thus their right of abode is, as I said earlier, purely symbolic.
+If it is exercised by setting up some camp on the islands, that will be a symbol, a gesture, aimed at putting pressure on the government.
+The whole of this litigation is, as I said in R v Jones (Margaret) [2007] 1 AC 136, 177 the continuation of protest by other means.
+No one denies the importance of the right to protest, but when one considers the rights in issue in this case, which have to be weighed in the balance against the defence and diplomatic interests of the state, it should be seen for what it is, as a right to protest in a particular way and not as a right to the security of ones home or to live in ones homeland.
+It is of course true that a person does not lose a right because it becomes difficult to exercise or because he will gain no real advantage by doing so.
+But when a legislative body is considering a change in the law which will deprive him of that right, it cannot be irrational or unfair to consider the practical consequences of doing so.
+Indeed, it would be irrational not to.
+Some observations can be made about this passage.
+In the first place it clearly implies that a decision to remove the Chagossians from their homeland with little or no provision for their future would indeed be a profoundly intrusive measure and one for which compelling justification would be required.
+And, of course, this is precisely what happened between 1968 and 1973.
+The Chagossians were removed.
+The islanders need to accept that removal must have been seen by them as a matter of survival.
+Whatever one might think of the argument that the evacuation of the islands was necessary (and, therefore, justified) in order to accommodate the American bases, it is impossible to defend the failure to ensure that the Chagossians were adequately housed and provided for in their new surroundings.
+In accordance with the standard set by Lord Hoffmann, the decision to remove the Chagossians without making adequate provision for them and their subsequent actual removal when that provision was not in place must therefore have been irrational when those events occurred.
+The fact that their removal, when it in fact occurred, was unreasonable cannot, in my opinion, be left out of account in assessing whether the subsequent decision to perpetuate the Chagossians exile was rational.
+I will give my reasons for that conclusion later.
+Secondly, it appears that Lord Hoffmann considered that the importance of the right to live in the outer islands, because it could not be fulfilled without financial help, was diminished because it was purely symbolic.
+This was a view strongly challenged in the speech of Lord Mance.
+In para 138 he said: [The wish of the Chagossians] for recognition of their historic connection, and on their case rights of abode, in relation to the Chagos Islands is deep felt, longstanding and, in my view, understandable.
+Arguments that any right of abode is symbolic, since it would be impracticable to exercise without expensive government support to which it is accepted that there is no right and which would not be forthcoming, in my view miss the point.
+If anything, they indicate that the right claimed could be recognised without this being likely to have any practical effect on the present state of the Chagos Islands.
+These islands (apart from Diego Garcia) appear to exist as an unspoilt nature paradise to which an increasing number of long distance yachtsmen venture to spend periods of months without noticeable disturbance to the operations of the United States base at Diego Garcia many miles away.
+This passage throws into sharp focus the question whether the practicability of fulfilment of an undeniable right affects its intrinsic worth.
+It also emphasises the need to look closely at the question whether it was necessary to deny the Chagossians the right to live on the outer islands in order to avoid responsibility for funding such an option.
+At a theoretical level at least, a clear distinction can be drawn between, on the one hand, a refusal to underwrite the costs of resettlement, and, on the other, depriving the Chagossians of the right to return to their homeland.
+If all that the British government wanted to avoid was paying for the cost of resettlement, why should it not simply say so? But the riposte to an argument that it was unnecessary to forbid return to the islands and that refusing to fund such a return was enough to achieve the governments aims might be that given by Lord Hoffmann himself.
+This was that to permit an unfunded return would merely assist in the campaign on which the Chagossians were embarked.
+In order to frustrate that campaign, it was necessary to remove from the Chagossians their right to return to the place where they and their ancestors were born and had lived.
+Lord Mance suggested (also in para 138 of his speech) that it had not been shown that that the Chagossians have been, in Bancoult (No 1) or the present proceedings, engaged in a mere campaign to obtain the UK government support for resettlement or to embarrass the United Kingdom and United States governments.
+Whether or not there was evidence from which to infer that there was such a campaign, it is clear from Lord Hoffmanns speech that the rationality of the decision to enact the 2004 Order depended crucially on its being shown that the conclusion that it was necessary in order to forestall a campaign by the Chagossians was not unreasonable.
+This is also clear from the speeches of Lord Rodger and Lord Carswell.
+At para 112, Lord Rodger said that the decision to legislate and to introduce immigration controls appears to have been prompted by the prospect of protesters attempting to land on the islands.
+And at para 132 Lord Carswell expressed his full agreement with Lord Hoffmann and Lord Rodger.
+Does the decision of the majority on the issue of irrationality preclude any re examination of the question of whether the right of the Chagossians to go and live where they were born was merely symbolic or, if it was, that its importance was thereby devalued? Is the second question set out above (whether the purpose of the Chagossians challenge was to advance a campaign to obtain financial support from the UK government and to embarrass the UK and US governments) forever settled by the decision of the majority? In my opinion, the answer to these questions is a conditional no.
+The conclusion that the decision to enact the 2004 Order could withstand the charge of irrationality was multi factorial.
+If it now transpires that one of the bases for that conclusion was reliance on information that has now proved to be wrong or incomplete, this inevitably reflects on the cogency of the other grounds on which the conclusion was based.
+The various reasons for a decision such as this are, of their nature, interlinked.
+They may also be interdependent.
+Weight given to one factor may be affected by the discovery that the weight given to another can no longer be sustained.
+If, therefore, it emerges that the decision on the feasibility of resettlement was reached on information that was plainly wrong or open to serious challenge and that it is at least distinctly possible that a different decision on that question would have been formed had the full picture been known, it seems to me that the rationality of the enactment of the 2004 Order should be re examined generally.
+Leaving that debate aside for the present, however, it is necessary to focus directly on the feasibility of a return to the islands and the various views expressed about that.
+Lord Hoffmanns summary of his conclusions (para 23 of his speech) on this question have already been discussed.
+He also relied on the written statement to the House of Commons on 15 June 2004 by the Foreign Office Under Secretary of State, Mr Bill Rammell, that in the light of the feasibility report it would be impossible for the government to promote or even permit resettlement to take place.
+Lord Rodger also relied on the contents of the feasibility report and Mr Rammells statement.
+At paras 112 and 113 he said this: 112.
+On 15 June 2004 a junior minister, Mr Rammell, made a written statement to Parliament.
+His good faith has not been impugned by the respondent.
+The statement shows that, in deciding to legislate to prevent people resettling on the outer islands, the government took into account the fact that the economic conditions and infrastructure which had once supported the way of life of the Chagossians had ceased to exist.
+Something new would have to be devised.
+The advice was that the cost of providing the necessary support for permanent resettlement was likely to be prohibitive and that natural events were likely to make life difficult for any resettled population.
+Human interference within the atolls was likely to exacerbate stress on the marine and terrestrial environment and would accelerate the effects of global warming.
+Flooding would be likely to become more frequent and would threaten the infrastructure and the freshwater aquifers and agricultural production.
+Severe events might even threaten life.
+The minister recorded that, for these reasons, the government had decided to legislate to prevent resettlement.
+Although he made no mention of it, the decision to legislate and to introduce immigration controls at that particular time appears to have been prompted by the prospect of protesters attempting to land on the islands.
+In addition, Mr Rammell said that restoration of full immigration control over the entire territory was necessary to ensure and maintain the availability and effective use of the territory for defence purposes.
+He referred to recent developments in the international security climate since November 2000 when such controls had been removed. 113.
+The ministerial statement indicates that a decision to legislate was taken on the basis of the experts (second) report on the difficulties and dangers of resettling the islands these difficulties and dangers being dangers and difficulties which would affect the Chagossians themselves, if they were to try to live on the outer islands.
+Given the terms of that report alone, it could not, in my view, be said that no reasonable government would have decided to legislate to prevent resettlement.
+In particular, the advice that the cost of any permanent resettlement would be prohibitive was an entirely legitimate factor for the government which is responsible for the way that tax revenues are spent to take into account.
+In addition, the government had regard to defence considerations, the views of its close ally, the United States, and the changed security situation after 9/11.
+These additional factors reinforce the view that the decision to legislate was neither unreasonable nor irrational.
+Although Lord Rodger noted that factors other than those outlined in the experts second report were in play, it is clear from these paragraphs that he acknowledged that the report was the principal influence in the governments decision.
+He identified a number of features from it as being of particular importance: 1. the cost of permanent resettlement was likely to be prohibitive; 2. natural events would make life difficult for the inhabitants; 3. stress on the marine and terrestrial environments would be aggravated; 4. the effects of global warming would be increased; 5. flooding was likely to become more frequent and fresh water supplies and agricultural production would be endangered; and 6. severe events might even threaten life.
+By any standard, these were anticipated consequences of considerable moment.
+Lord Carswell also relied heavily on the report.
+At para 121 he said that it was quite clear that resettlement was wholly impracticable without very substantial and disproportionate expenditure.
+The practical difficulties in the way of resettlement were in his view relevant to the rationality of the governments decision.
+The claims made for the rationality of the decision to introduce the 2004 Order were forthrightly rejected in a lucid and strong passage of Lord Binghams speech.
+At para 72 he said: section 9 was irrational in the sense that there was, quite simply, no good reason for making it. (1) It is clear that in November 2000 the re settlement of the outer islands (let alone sporadic visits by Mr Bancoult and other Chagossians) was not perceived to threaten the security of the base on Diego Garcia or national security more generally.
+Had it been, time and money would not have been devoted to exploring the feasibility of resettlement. (2) The United States government had not exercised its treaty right to extend its base to the outer islands. (3) Despite highly imaginative letters written by American officials to strengthen the Secretary of States hand in this litigation, there was no credible reason to apprehend that the security situation had changed.
+It was not said that the criminal conspiracy headed by Osama bin Laden was, or was planning to be, active in the middle of the Indian Ocean.
+In 1968 and 1969 American officials had expressly said that they had no objection to occupation of the outer islands for the time being. (4) Little mention was made in the courts below of the rumoured protest landings by LALIT.
+Even now it is not said that the threatened landings motivated the introduction of section 9, only that they prompted it.
+Had the British authorities been seriously concerned about the intentions of Mr Bancoult and his fellow Chagossians they could have asked him what they were. (5) Remarkably, in drafting the 2004 Constitution Order, little (if any) consideration appears to have been given to the interests of the Chagossians whose constitution it was to be. (6) Section 9 cannot be justified on the basis that it deprived Mr Bancoult and his fellows of a right of little practical value.
+It cannot be doubted that the right was of intangible value, and the smaller its practical value the less reason to take it away.
+Now, it is true that none of the reasons outlined in this paragraph touches on the question of feasibility as such but they provide a powerful and, in my view, unanswered case for rejecting the claim that the decision to introduce the 2004 Order was rational unless it could be shown that the feasibility argument was so strong as to outweigh it.
+This is crucial.
+If significant doubt could have been cast on the claims made in relation to feasibility, then the case for the government that its decision was rational would have been thrown into considerable disarray.
+Lord Mance was unimpressed by the use of the feasibility report as a basis for denying the Chagossians their fundamental right of abode in their homeland.
+At para 168 he pointed to the central incongruity of using a report published in 2002 to justify the enactment of the 2004 Order, two years later and to the circumstance that the government had been found to be under no legal obligation to fund resettlement: The report is in fact dated 28 June 2002, so the BIOT Order 2004 was enacted two years after the report, and nine months after Ouseley Js decision that the government had no duty to fund resettlement, although a month before the Court of Appeal finally refused permission to appeal against that decision.
+In the absence of any legal obligation to fund resettlement, the prospective cost of doing so appears to me (as it did to Sedley LJ in the Court of Appeal: para 71) an unconvincing reason for withdrawing any right of abode and any right to enter or be present in BIOT.
+The Secretary of State notes in his written case that, even in the absence of any legal obligation to fund resettlement (and although the United Kingdom has made clear its determination to resist any suggestion that it should provide such funds on a voluntary basis), there could be public and political pressure claiming that the United Kingdom should provide funding for the cost of resettlement.
+That is not a reason articulated at the time or supported by any reference in the written case.
+The logic of this reasoning is, in my opinion, irresistible.
+At its height, the feasibility report spoke to the impracticability of resettlement and the inordinate cost of funding any attempt by the Chagossians to resettle in their homeland.
+But it had been held that the government was under no legal obligation to fund a resettlement.
+As a justification for denying the fundamental right of abode in the country of ones birth, therefore, the report could be relied on only to forestall public and political pressure on the United Kingdom that the government should meet what the feasibility report said was the inordinate cost of resettlement.
+Quite apart from the consideration that, as Lord Mance pointed out, this was not a reason proffered by the government either by way of explanation of the reason for the 2004 Order or in its written case, this was a heavy burden for the report to bear.
+It was not enough that it be shown that the cost was exorbitant or that resettlement was impracticable; these had to be so great that the risk of the government coming under pressure to meet the cost and permit resettlement was such that the Chagossians had to be refused the right to return to their traditional home.
+Against that background, any reservations about the veracity of the claims made in the report assume an unmistakable significance.
+Unless the report was compelling and irrefutable in its conclusions, its capacity to act as the sole justification for the denial of such an important right was, at least, suspect.
+Many criticisms of the reliability of the Phase 2B feasibility study have been made on behalf of the applicant.
+These have included examination of 1. the approach of the consultants to their task; 2. the editorial control exercised by the FCO; 3. the avowedly misleading representation that the consultants acted wholly independently; 4. the alterations to the terms of reference of the preliminary study; 5. the criticisms made of the scientific value of the Phase 2B report; and 6. the changes to the text of the report.
+Many documents prepared to support the applicants case have been submitted.
+While I have read and closely considered all of these, I do not find it necessary or helpful to set all of them out in any detail.
+What follows is a summary of the principal matters to emerge from all this material which are pertinent to the central issue to be determined viz whether this appeal should be re opened.
+The draft preliminary report and some of the changes made to it
+An examination of the background to the Phase 2B report must begin with the preliminary stage report.
+As mentioned (para 102 above) Mr Gifford claimed that there had been a crude rewriting of the conclusion of this report from the version in the original draft.
+In its original conception the feasibility study was intended to comprise two stages, the first of which was to see whether settlement appears possible and environmentally acceptable (with an estimate of the numbers who might wish to return to the outlying islands).
+Consultants delivered a draft report in May 2000.
+The principal conclusion was contained in para 5.1.1: The conclusion of this preliminary study is that there is no obvious physical reason why one or both of the two atolls should not be repopulated, by the sort of numbers (up to or around one thousand) of Ilois [Chagossians] who are said to have expressed an interest in re settlement.
+Carrying capacity is largely a function of the nature of economic activity which accompanies re settlement, and its capability of financing the necessary amount of resources to ensure adequate supplies of water and to minimise the environmental impact.
+It was recognised that further feasibility studies would have to be undertaken and so the draft report continued at para 5.1.13: If a decision is taken to examine further the feasibility of re settlement, the next stage of the feasibility study should be largely concerned with examining the technical, financial, economic and environmental aspects of specific development proposals put forward by groups of islanders who are serious about re settlement and who have proper financial and technical backing for their proposed enterprises.
+When the report reached its final form, there was a notable alteration to the principal conclusion.
+In the published version it read in para 5.1: The conclusion of this preliminary study is that resettlement of one or both of the two atolls is physically possible, but only if a number of conditions are met.
+These include confirmation that: the nature and scale of settlement will not a sustainable and affordable water resource can be developed; damage the environment; and basic services; and one or more private investors are willing to develop viable enterprises which can generate sufficient incomes to pay for the investment and recurrent costs of re settlement.
+public money is available to finance infrastructure
+Taken on its face, this change may not appear especially significant.
+But, apart from the difference in language and structure, it had incorporated as essential pre conditions matters which the draft report had indicated should be the subject of further study and investigation.
+Again, however, this may betoken no more than a recognition of a need for caution about future planning.
+It is perhaps on this account that these changes did not feature to any great extent in the presentation of Mr Bancoults case at any of the stages of the proceedings which ended in the appeal to the House of Lords.
+In light of changes to and criticisms of the draft Phase 2B report, it may be that greater importance should be attached to them and that they could be regarded as heralding a reluctance on the part of the government to countenance any return of the Chagossians to Peros Banhos and the Salomon Islands.
+Certainly, it is not difficult to conclude that such an argument would have been made, had the criticisms of the draft Phase 2B report and the changes made to it been known.
+What would have been made of such an argument is now perhaps difficult to say but the fact that it could have been but was not advanced should weigh in the balance as to whether the decision of the House of Lords should be set aside.
+The draft Phase 2B report and the criticisms made of it
+In his statement to the House of Commons Mr Rammell had said that the government had commissioned a feasibility study by independent experts to examine and report on the prospects for re establishing a viable community in the outer islands of the territory.
+While it is strictly true that the consultants were independent, the terms of reference for the study made it clear that the BIOT government (for convenience, in the next sections this will be referred to as BIOT) retained the right to see and comment on a draft of the final report.
+In particular, para 6.3 of the terms of reference for Phase 2B of the study provided that a draft final report, containing a report of the work done, conclusions and recommendations, had to be submitted to BIOT within four months of the assignment starting.
+After BIOT received the draft, it was then able to make comments on it and it was only after these had been received that the final version of the report would be published.
+All of this might be regarded as, if not standard government practice, at least not untoward.
+But the applicant suggests that the way that the procedure in fact operated in this case robbed the final report of any claim to true independence.
+He claims that when the extent of the widespread changes to the draft originally submitted became known (after the Rashid documents became available) what might have appeared as a wholly independent report took on a very different complexion.
+It is further suggested that this conclusion is reinforced by a consideration of the contents of a memorandum of a meeting between on 6 March 2002 between Alex Holland of the consultants, Alan Huckle (head of the Overseas Territories Department and BIOT Commissioner), Louise Savill (BIOT Administrator) and Brian Little (FCO Feasibility Study Project Manager).
+This followed 21 days of field work in Peros Banhos and the Salomon Islands.
+A progress report covering the period from 25 January to 28 February 2002 was considered at the 6 March meeting.
+This report laid down the future work programme, with draft reports from individual consultants due at Posford Haskoning by 22 March 2002, followed by submission of the entire first draft to BIOT on 31 March 2002.
+The memorandum of this meeting was prepared by Ms Holland.
+In it she recorded Mr Huckle as saying: The FCO had hoped that Phase II would negate the need for Phase III, ie if it concluded that resettlement wasnt feasible.
+The comment is then made, realistically, that was never likely to be the outcome.
+Lord Mance has stated at para 33 that there is no suggestion that the FCO was inviting changes to bolster any sort of findings or conclusions in either the draft and the final report, and no basis for regarding Posford as susceptible to any such invitation.
+It is true that there is no record of an explicit invitation to bolster or change findings.
+But it is telling that the memorandum recorded that FCO is hoping that the section on climate change will resolve its difficulties.
+In my view, while these statements might be supposed not to entirely undermine the subsequent findings of the consultants, it is clear that the consultants were being given an unmistakable steer as to what FCO wanted the outcome of the report to be and, inevitably, whatever one might think about Posfords susceptibility to suggestions, this at least raises questions about the independence and impartiality of the judgment that the consultants ultimately made.
+Those questions in turn play into the validity of the scientific analysis made by the consultants.
+The Executive Summary of the draft report was received by BIOT in the week beginning 8 April 2002.
+The remaining sections of the draft arrived on 15 April.
+On 24 April 2002 Charles Hamilton (who had just succeeded Louise Savill as BIOT Administrator) asked Dr Charles Sheppard (a tropical marine ecologist at Warwick University who had extensive previous work experience in the Chagos) to carry out a peer review of the consultants report.
+This was provided on 14 May 2002.
+Dr Sheppard wrote an email to accompany his report.
+In this he excoriated some parts of the consultants work.
+Some sections of the report were, he said, quite hopeless.
+These related principally to the resources section.
+Importantly, however, Dr Sheppard endorsed the consultants conclusions on the practicability of resettlement largely on account of anticipated climatic conditions.
+The consultants views on this were, Dr Sheppard said, supported by emerging science connected with tropical science generally.
+It might therefore be said that on the central issue which influenced the majority in the House of Lords, viz whether resettlement was a feasible option, the consultants assessment was essentially supported by Dr Sheppard.
+The applicant points to a more general criticism voiced by Dr Sheppard, however.
+This, he says, is bound to have prompted his advisers to mount a wholesale and direct challenge to the methodology and reliability of the feasibility report generally.
+In this connection, the applicant relies particularly on a sharp criticism of the report by Dr Sheppard in the following strongly worded terms: the present Posford report should not in my view be released in its present form; some of its science would be badly savaged by anyone not happy with your conclusions, and so, by implication, could some of the conclusions themselves.
+The claim that if this comment had been known by the applicants advisers, it would have led to a more direct challenge to the feasibility report must be approached with caution in light of the fact that the applicant had engaged a resettlement anthropologist, Jonathan Jenness.
+He was asked to conduct a review of the feasibility report primarily to provide input on the resettlement issues which were excluded from the Phase 2B study, but Mr Jenness also made some strong criticisms of the claimed conclusions of the study, without knowing how those conclusions had been arrived at.
+Mr Jenness report was submitted to FCO.
+The applicant and his advisers were unaware that it had been subjected to a critique by Dr Sheppard until FCO wrote to his solicitors on 2 December 2002 enclosing Dr Sheppards report.
+He challenged and criticised a number of Mr Jenness conclusions but he said that many of his points about the inadequacies and errors in the Posford report were valid.
+There must be some doubt, however, that Dr Sheppards acknowledgment that parts of Mr Jenness criticisms of the feasibility study were sound would have led to a markedly different strategy on the part of Mr Bancoults advisers, not least because of the astringency of Dr Sheppards other observations on Mr Jenness report.
+Whether disclosure of Dr Sheppards critique of Mr Jenness would have led to a different conclusion by the majority in the House of Lords calls for rather more subtle consideration, however.
+As I have said, the essential issue for the House of Lords was whether the cost of resettlement was so exorbitant or that resettlement was so impracticable that the risk of the government coming under pressure to meet the cost and permit resettlement was such that the Chagossians had to be refused the right to return to their traditional home.
+It seems to me that, in light of Dr Sheppards general criticisms of the consultants report and his endorsement of some of Mr Jenness disparagement of it, it is at least questionable that such heavy reliance would have been placed by the majority on its conclusions.
+Alterations made to the draft Phase 2B report
+The draft report contained a supremely important passage at the second part of para 1.8, which was originally included in the section on resettlement.
+It reads: the most significant and immediate consequences of climate change on a resettled population within the Chagos Archipelago are likely to be related to changes in sea levels, rainfall regimes, fresh water resources, soil moisture budgets, prevailing winds (direction and speed) and short term variation in regional and local patterns of wave action.
+At present the Chagos archipelago lies just north of an active cyclone belt, however, a small northward shift of this belt could lead to frequent cyclones in the area.
+This would lead to more frequent flooding of the islands, with corresponding risk to life and any infrastructure.
+It would also reduce agricultural potential and the freshwater contained within the island aquifers would experience higher levels of salinity. (emphasis added)
+The final version of the report in the equivalent section was in the following terms: The most significant and immediate consequences of climate change for the Chagos Archipelago are likely to be related to changes in sea levels, rainfall regimes, soil moisture budgets, prevailing winds and short term variation in regional and local patterns of wave action.
+As a consequence most islands will experience increased levels of flooding, accelerated erosion, and seawater intrusion into freshwater sources.
+The extent and severity of storm impacts, including storm surge floods and shore erosion are predicted to increase.
+Although the risks associated with climate change are not easily established the implications of these issues to resettlement in the outer atolls of the Chagos Archipelago are outlined briefly below (emphasis added).
+The most obvious and significant points to be made about these two passages is in (i) the transformation of a conditional forecast of frequent flooding etc, predicated on a possible northward shift of the active cyclone belt, into a firm prediction that these and other consequences will occur; (ii) the omission of any reference to the cyclone belt in the final version; and (iii) the new wording in the final version predicting an increase in storm surge floods and shore erosion unconnected with cyclones.
+A new sentence has been added stating that [t]he extent and severity of storm impacts, including storm surge floods and shore erosion are predicted to increase.
+No evidence was provided to support the assertion contained in this sentence.
+The significance of translating the prediction of possible consequences of climate changes into a positive statement that these will occur lies, of course, in the impetus that it gives to the notion that there really was no practical means of resettling the islands.
+As it happens, there is no evidence that these consequences have begun to materialise even now, although that may not be taken into account on the issue of whether the application to re open the appeal should be allowed.
+But the essential message of the final report that these consequences would occur cannot but have influenced the decision of the majority of the House of Lords that the perceived need to enact the 2004 Order was not irrational.
+It is one thing to say that it is rational to forbid Chagossians to return to their homeland if the dire consequences that were spoken of were going to occur.
+It is quite another to say that it was reasonable if it was merely possible that they might happen.
+The jurisdiction to set aside a decision of the House of Lords and the test to be
+applied
+It is possible, at least theoretically, to distinguish between the question whether this court has jurisdiction to set aside a decision of its predecessor and the test to be applied in deciding whether to do so.
+In practice, however, these concepts overlap because the jurisdiction tends to be defined in terms of the conditions which justify its invocation.
+In R v Bow Street Metropolitan Stipendiary Magistrates, Ex p Pinochet Ugarte (No 2) [2000] 1 AC 119, 132D, Lord Browne Wilkinson said: In principle it must be that your Lordships, as the ultimate court of appeal, have power to correct any injustice caused by an earlier order of this House.
+There is no relevant statutory limitation on the jurisdiction of the House in this regard and therefore its inherent jurisdiction remains unfettered.
+In Broome v Cassell & Co Ltd (No 2) [1972] AC 1136 your Lordships varied an order for costs already made by the House in circumstances where the parties had not had a fair opportunity to address argument on the point.
+There is likewise no relevant statutory limitation on the jurisdiction of this court.
+And its inherent jurisdiction must comprehend the right to correct an injustice caused by an earlier order made by it or however such injustice arises.
+This point was made by Lord Hope, delivering the judgment of the panel in R (Edwards) v Environment Agency (No 2) [2011] 1 WLR 79 where he said at para 35: The Supreme Court is a creature of statute.
+But it has inherited all the powers that were vested in the House of Lords as the ultimate court of appeal.
+So it has the same powers as the House had to correct any injustice caused by an earlier order of the House or this court.
+It would however be more consistent with the principle which Lord Browne Wilkinson described to say that the power is available to correct any injustice, however it
+may have arisen
+Of course, in this context, what is meant by injustice is the critical issue.
+Providing a comprehensive definition of the circumstances in which it would be appropriate to exercise this jurisdiction is impossible but one can begin with the uncontroversial statement that it must be sparingly invoked.
+Lord Browne Wilkinson was careful to make that point in emphatic terms.
+At 132E of Pinochet he said: it should be made clear that the House will not re open any appeal save in circumstances where, through no fault of a party, he or she has been subjected to an unfair procedure.
+Where an order has been made by the House in a particular case there can be no question of that decision being varied or rescinded by a later order made in the same case just because it is thought that the first order is wrong.
+By wrong in this connection one may safely assume that Lord Browne Wilkinson had in mind a conclusion that the earlier courts decision was, in the minds of the subsequent panel, one which should not have been reached on the particular facts and legal issues before it.
+So it is not sufficient to show that the earlier decision was wrong in that sense.
+But is it necessary to show that, not only was a party subjected to an unfair procedure but that a wrong decision was thereby procured? On one view, the statement in the earlier passage quoted above, that the jurisdiction should be invoked to correct any injustice might indicate this, for how could an injustice occur if the outcome of the proceedings would have been the same in any event? But Lord Browne Wilkinsons later reference to Broome v Cassell (No 2) suggests that the jurisdiction is not so confined.
+This appears to indicate that where parties have not had a fair opportunity to address argument on a relevant point, an injustice, sufficient to animate the jurisdiction, is present.
+The question remains, however, whether it is a necessary prerequisite that the earlier decision would not have been, or is likely not to have been, reached, if the defect in procedure or other irregularity had not occurred.
+The applicant has accepted that it must be shown that the non disclosure probably had, or may well have had, a decisive effect on the outcome.
+This concession was based largely on Court of Appeal jurisprudence.
+The respondent agreed with the applicants formulation of the appropriate test.
+In Taylor v Lawrence [2002] EWCA Civ 90; [2003] QB 528, it was held that the Court of Appeal could re open proceedings which it had already heard and determined if it was clearly established that a significant injustice has probably occurred and that there is no alternative effective remedy.
+It is apparent that significant injustice in that case connoted an actual injustice (in the form of an adverse result which should not have occurred), although, as it happens, no such injustice was held to have happened there.
+A tangible injustice in the form of the probably wrong outcome was considered to be necessary.
+This approach was followed in Feakins v Department of the Environment, Food and Rural Affairs [2006] EWCA Civ 699.
+After Taylor v Lawrence was decided, CPR 52.17 headed Re opening of Final Appeals was promulgated on 6 October 2003.
+It provided: The Court of Appeal . will not re open a final determination of any appeal unless it is necessary to do so in order to avoid real (a) injustice; (b) appropriate to re open the appeal; and (c) there is no alternative effective remedy.
+the circumstances are exceptional and make it
+No such provision exists in the Supreme Court Rules.
+Obviously, there will customarily be no alternative effective remedy where the decision that is sought to be re opened is one of the Supreme Court.
+Should the approach of this court be the same as that otherwise indicated in this provision? For reasons earlier given, the power to re open should be invoked sparingly and the need for exceptional circumstances is unobjectionable.
+The requirement that the circumstances are such as to make it appropriate to re open the appeal is somewhat general and rather begs the question, when is it appropriate that the appeal should be re opened.
+This is an issue on which, I think, it is quite impossible to be prospectively prescriptive.
+It seems to me, therefore, that the truly important condition in CPR 52.17 is that the re opening of an appeal should be necessary in order to avoid injustice and that this is the touchstone which this court should adopt as a guide to when this exceptional course should be followed.
+Does real injustice involve a conclusion that the circumstance which prompts the application to re open the appeal probably had, or may well have had, a decisive effect on the outcome? I am content to say that this should normally be required.
+But I enter two caveats to that proposition.
+In the first place, it may not always be possible to forecast that such a decisive effect would probably or might well accrue.
+In that event, I would not preclude in every circumstance the possibility of a re opening of the appeal.
+The second possible exception to the general rule might arise where the behaviour of the party whose failure to place before the court relevant material was so egregious that, even if it was not considered likely that the outcome of the appeal would be affected, it would nevertheless be appropriate that the appeal be re opened in order to demonstrate that all pertinent information had been fully considered and that due process had been followed.
+Neither situation arises here.
+I am satisfied, therefore, that it is incumbent on the applicant to show that if the material in the Rashid documents had been available to the House of Lords they would have had, or may well have had, a decisive effect on the outcome of the appeal.
+I am entirely satisfied, however, that it is enough that it be established that there is a real possibility that a different outcome would have occurred had the information been available at the time of the original hearing.
+How could it be otherwise? If it is shown that it is distinctly possible that a party might have achieved a different result had relevant material been available to it, I cannot understand how it could be said that that party has not suffered an injustice by being denied the material and thereby being denied the opportunity of securing the outcome that they sought.
+If I might have persuaded the court that it should reach a different view if I had material that could have influenced that view, have I not suffered an injustice by being deprived of that chance? Of course I have.
+To the extent that Taylor v Lawrence and Feakins v Department of the Environment, Food and Rural Affairs suggest otherwise I emphatically disagree with them.
+It is, therefore, my firm belief that it is not necessary to show that it was probable that a different outcome would have been brought about; it is enough that there exists a distinct possibility that this would be so.
+Furthermore, the formulation whether it was irrational or unjustified for the Secretary of State to accept and act on the General Conclusions does not focus on the essential issue here.
+It was not simply a question of the Secretary of State accepting the conclusions; it was a matter of using those conclusions as a basis for denying a right of abode to the Chagossians solely in order to deter a campaign by the Chagossians to be allowed to return to their homeland.
+The House of Lords was not addressing in the abstract the question of the rationality or justifiability of the Secretary of States decision to rely on such conclusions (Lord Mance in the final sentence of para 64).
+What it was about was an examination of the sufficiency of his reliance on those reasons as a basis for denying the Chagos Islanders entitlement to return to live in their homeland, when there was no question of any legal obligation on the part of the government to fund that return.
+It is therefore, I am afraid, not enough to say that there was nothing in the re drafting and finalisation of the stage 2B report which could, would or should have caused the Secretary of State to doubt the General Conclusions or which made it irrational or otherwise unjustifiable to act on them in June 2004 Lord Mance para 65.
+The critical issues were the nature of the action taken and the background against which it occurred.
+It might not be irrational to accept the conclusions of the report but that, with respect, is simply not the point.
+The question is whether it was rational to deny these islanders their fundamental right to live where they and their ancestors were born for the sole reason of seeking to avoid a potentially embarrassing campaign that the British government should put right the callous disregard that had been shown them when they were effectively forced from the islands between 1968 and 1973.
+The House of Lords was not merely considering whether it was reasonable for the Secretary of State to accept the reports findings.
+The rationality challenge was to the action that he took, having accepted those findings.
+In the knowledge that the British government was not under any legal obligation to fund resettlement and that the most it had to fear was a campaign by the islanders that they be allowed to return home and that the government should facilitate that, the minister decided that they should be denied their right of abode in their homeland.
+That is the true nature of the rationality challenge.
+And that is why (as I explain at para 165 below) that it is necessary to recognise how severe the challenge to justify the 2004 Order truly was.
+When that central truth is confronted, it becomes clear how any doubt on the authority of the report was likely to or certainly should have caused the majority of the panel to question the rationality of the decision.
+And that is why there is, at the very least, a distinct possibility that there would have been a different outcome.
+Would the Rashid documents have had, or may they well have had a decisive effect?
+In my view the principal relevant documents exhibited to Ms Rashids statement were: 1. the memorandum of the meeting of 6 March 2002 in which the governments hopes for the outcome of the feasibility study were made clear; 2.
+Dr Sheppards critique of the draft Phase 2B report; 3.
+Dr Sheppards endorsement of some of Mr Jenness criticism of the feasibility study; 4.
+The draft Phase 2B report which, when contrasted with the final report, illustrated the distinct change in emphasis in the prediction of climate changes, especially since these bore directly on the question of the feasibility of resettlement.
+In deciding whether the disclosure of these documents before the appeal was heard by the House of Lords would or might well have had a decisive effect on the outcome, one must keep closely in mind the real issue on rationality.
+This was whether it was rational to deny the Chagossians the right to return to their homeland in order to deflect or prevent a campaign that the UK government should fund resettlement costs.
+The issue was not whether it would be reasonable for the government to meet those costs.
+It had been decided that there was no legal obligation on them to do so.
+It could not, therefore, be sought to justify the decision to introduce the 2004 Order on the basis that it was not reasonable that the UK government should have to fund the resettlement costs.
+The government did not need to defend a decision that it would not pay for resettlement.
+It had been told by a court that it was not legally obliged to do so.
+What motivated the decision to categorically forbid the Chagossians the right to go back to live in their homeland was an anticipated campaign that might have been politically embarrassing for the government.
+When this apprehended harm is pitted against the importance of the right to be denied, it is not difficult to recognise how severe the challenge to justify the 2004 Order truly was.
+People were told that they could not go back to live where they and their ancestors had lived.
+Moreover, that denial took place against a background that they had been evacuated from the islands in circumstances which were plainly unjustified.
+When the decision came to be made in 2004 whether they should be allowed to return to live in the outlying islands, the fact that their removal from them had been organised with callous disregard of their interests was a plainly relevant circumstance.
+It could not have been properly left out of account by a conscientious decision maker.
+There is no evidence that regard was had to that factor.
+Irrespective of whether it was or not, however, the circumstances in which the Chagossians were originally removed from their homeland rendered any subsequent decision to refuse to allow them to return all the more difficult to justify.
+If the Rashid documents had been before the House of Lords, the following matters would have had to be squarely confronted: the draft report had to be submitted to BIOT officials who had the (i) despite the claims for their independence, the consultants had been told in unequivocal terms what the government hoped would be the outcome of their report; (ii) opportunity to approve or require amendment of its contents; (iii) much of the science of the report (although not that relating to climatic changes) had been severely criticised by Dr Sheppard; (iv) many of the criticisms of the report by Mr Jenness had been endorsed by Dr Sheppard (even though he was also extremely critical of Mr Jenness); (v) most importantly, the draft reports central findings in relation to climate change, couched in conditional terms, had been altered to provide a firm prediction that such changes would take place.
+In my view, the collective effect of these revelations is that the appeal might well have been decided differently.
+The passages from the speeches of the majority which have been quoted earlier, for perfectly understandable reasons, bear no trace of reservation or doubt as to the anticipated consequences of any attempt to resettle the islands.
+If the members of the House of Lords knew that much of the science of the report was considered to be suspect by the scientist retained by the FCO; that the consultants had been given a clear indication of what the government hoped the report would deliver; that the changes to the conclusions of the preliminary study (which were known) proved to be a mild herald of the more radical changes to the Phase 2B report; that the Chagos Islands were not in an active cyclone belt and that this had a direct bearing on the predictions contained in the report, is it likely that the speeches of the majority concerning the anticipated consequences of an attempt to resettle would have been expressed in such emphatic terms? In my judgment it is not.
+And if the majority felt compelled, as it surely would, to recognise the lack of certainty in some of the central predictions, is it likely that they would have been prepared to hold as rational a decision to completely deny the Chagossians the right to return to their homeland, simply because a failure to do so would give rise to a campaign that the government should fund resettlement, when it had already been held that they were under no obligation to do so? In my opinion, it is at least distinctly possible that a different view would have been taken by the majority and that the outcome of the appeal would have been different.
+I would therefore grant the application to re open the appeal.
+Other matters
+(i) New evidence
+The applicant sought to introduce new evidence which, he claimed, would show that the dire consequences which the feasibility study predicted have not in fact materialised and were, in any event, highly suspect from the start.
+Four species of evidence were involved: (i) a comprehensive analysis of the Phase 2 feasibility study based on a comparison of the original draft disclosed in the Rashid documents with the final published version of the study and on other information contained in the documents.
+This was prepared by Richard Gifford and by a coral reef scientist, Richard Dunne; (ii) information provided to the applicant by Stephen Akester, who was one of the members of the team which prepared the feasibility study.
+Mr Akester stated that he did not agree with the conclusion of the feasibility study that resettlement was not feasible, and that he was not consulted about the finalisation of the original draft of the study.
+It is claimed that he was the only member of the team of consultants the only person with direct experience of re settlement on small coral atolls; (iii) a review of the feasibility study, prepared by Professor Paul Kench, of the University of Auckland, New Zealand, dated 5 October 2012.
+He concluded that not only were the findings of the ocean and coastal processes section in the feasibility study unsound, because of lack of specialist understanding and methodological flaws, but also that the relevant summary in the executive summary was not supported by those findings.
+This conclusion, it was claimed, cast grave doubt on the pivotal findings of the feasibility study especially in relation to increased risk of sea water flooding; (iv) the written note of 6 March 2002, referred to in para 138 above.
+It is not open to an applicant for a re opening of an appeal to adduce evidence solely for the purpose of retrospectively impeaching the decision of the court whose judgment he seeks to have reviewed.
+This would, in effect, allow an appeal against the decision based on information acquired for the purpose of undermining the judgment.
+An application to re open an appeal must be based on the contention that if the original appeal had been conducted in the way that it ought to have been, it is probable or at least distinctly possible that there would have been a different outcome.
+On this account, much of the material which the applicant seeks to introduce is not admissible, irrespective of whether it complies with the conditions which should be met, based on the principles of Ladd v Marshall [1954] 1 WLR 1489, for the introduction of fresh evidence.
+In truth, an application to re open an appeal will rarely, if ever, be the occasion for an application to introduce fresh evidence in the conventional meaning of that term.
+The essence of an application to re open an appeal, in so far as it relates to evidence, is that evidence which should have been before the original court was not.
+For this reason, I consider that none of the so called items of evidence in the first three categories above is admissible.
+The memorandum of 6 March 2002, by contrast constitutes material which ought to have been disclosed before the Divisional Court hearing.
+If it had been, I consider that it would unquestionably have featured in that and subsequent proceedings in the case, bearing, as it undoubtedly did, on not only the independence of the consultants but also on the result that the Foreign Office hoped to obtain from the feasibility study. (ii) The paucity of the peer review of the feasibility study and Dr
+Sheppards impartiality
+It was argued on behalf of the applicant that, in light of the range of subjects covered by the feasibility study, a professional peer review of the draft study, carried out by up to six specialists was essential.
+Unique reliance on the expertise of Dr Sheppard, whose specialism is coral reef ecology, was insufficient to give the report the authority that it required.
+There is nothing in this point.
+If the rationality of deciding to introduce the 2004 Order depended at all on the robustness of the peer review of the feasibility study, this point could have been made during the earlier proceedings.
+But, in any event, while it may be good practice to have a comprehensive peer review of a report such as the feasibility study, that is a very far cry from saying that it was irrational to rely on the study in the absence of such a review.
+It was suggested that Dr Sheppards input into the revision of the draft of the feasibility study was mainly composed of criticisms of those parts of the study which tended to suggest that resettlement was feasible.
+Thus in his input to the final version he described the natural resources sections, which suggested a variety of ways in which natural resources could be exploited to provide a livelihood for the islands as dismal, while stating that the oceanographic, climate, groundwater and soils sections were scientifically sound.
+This, it was claimed, reflected the fact that Dr Sheppard was well known to be strongly dedicated to [the] conservation [of coral reefs] and it was therefore questionable whether he could reasonably be regarded as an objective assessor of a study on the issue of reintroducing human settlement to the pristine and now deserted environment which he was so committed to protecting.
+Even if one was prepared to take these highly contentious and untested claims at their height, they fall very far short of showing that taking Dr Sheppards views into account in deciding to introduce the 2004 Order was irrational.
+The applicant does not dispute that Dr Sheppard was a well recognised expert in his field.
+The suggestion that he might have allowed his interest in preserving coral reefs to influence the advice that he gave to the government is, at best, speculative.
+I consider that this argument is without merit.
+Is the application moot?
+The respondent has argued that events occurring since the decision of the House of Lords and a further review of the feasibility of resettlement render this application unnecessary.
+In July 2013 the respondent announced that a new feasibility study would be carried out.
+The terms of reference for this study were published on 31 January 2014.
+The new study was to consider a range of options for the re settlement of BIOT, including not just the outer Chagos Islands but also Diego Garcia where the United States military base is located.
+These developments do not render the re opening of the appeal of merely academic interest.
+If the original judgment of the House of Lords is not set aside, the starting point for all future consideration of the resettlement issue will be that section 9 of the Constitution Order is valid, and that the removal of the Chagos Islanders right of abode was lawful.
+If it proves that there would have been a different outcome in the appeal before the House of Lords if the material from the Rashid documents had been before their Lordships, it would obviously not be right that the position concerning the Chagossians right to return to their homeland, recognised first by the Divisional Court, should not be retrospectively vindicated, with whatever legal consequences that this might entail.
+Lord Mance in para 72 and Lord Clarke in para 78 of their judgments have characterised as conclusive the consideration that the 2014/5 feasibility study takes into account the possibility of resettlement on the islands, including Diego Garcia.
+They both suggest that the background has now shifted and that the constitutional ban needs to be revisited.
+With respect, whatever the outcome of the 2014/5 feasibility study, it cannot be right to suggest that this is relevant to a decision whether the appeal should be re opened, much less that it is conclusive of that issue.
+The fallacy of the suggestion can be demonstrated in this way: let us suppose that timeous disclosure of the Rashid documents would have led the House of Lords to a different conclusion on the question of the rationality of the decision to make the 2004 Orders.
+Could it seriously be suggested that the appeal should not be re opened because of the possibility that the Chagos Islanders might be allowed to resettle in entirely different circumstances and for completely different reasons than those which underlay the original decision? What is the juridical basis on which such a conclusion might be made? Is it an instance of the exercise of judicial discretion to deny a remedy to which the applicant is otherwise plainly entitled? For such a result, it would be necessary to demonstrate that the applicant would achieve the same result as would accrue on the successful re opening of the appeal.
+Alternatively, it might be suggested that there are occasions where it is appropriate for a court to take a pragmatic view and dispose of a case in a particular way because of a new factual context.
+Quite apart from the unfortunate imprecision of such an approach, it must surely only be permissible when the particular disposal allows the court to achieve justice in the changed circumstances.
+Given the narrowness of the issue before the Supreme Court on this appeal, taking account of changed circumstances in the Chagos Islands does not achieve justice.
+We are not in a position to make an order that vindicates the applicants right to resettle on Diego Garcia or elsewhere on the archipelago.
+The suggestion that we need not re open this appeal because of the possibility that the 2014/5 feasibility study would permit resettlement depends on (a) the government changing its stance as a result of the study; failing which (b) the applicant or others of like mind having the appetite to bring forward yet further litigation, despite the unhappy previous experience of past proceedings; (c) their being able to secure the services of lawyers prepared to work for them pro bono or on some other uncertain basis; and (d) the courts deciding in favour of the Chagossians in that speculative litigation.
+Even if it could be said that a favourable outcome of the 2014/5 feasibility study is possible, the Chagossians ability to obtain the result that the original appeal, if successful before the House of Lords, would have achieved is remote in the extreme.
+That this should provide a basis for denying them an outcome to which they were otherwise entitled is in my view inconceivable.
+The respondent has claimed that there was undue delay in making the application to re open the appeal.
+I do not consider that there is any merit in that claim.
+The Rashid documents were disclosed on 1 May 2012, in the course of the Bancoult (No 3) proceedings.
+The applicant sought to raise the issue of their non disclosure in those proceedings.
+He was not permitted to do so.
+It was held that the feasibility study had not played a part in the decision to create a marine protected area paras 81 to 93 of judgment given on 11 June 2013.
+That decision was appealed to the Court of Appeal, and judgment was given in the Court of Appeal on 23 May 2014 ([2014] EWCA Civ 708; [2014] 1 WLR 2921).
+The applicant then sought to resolve the matter by inviting the respondent to agree that the judgment in the present action should be set aside by consent.
+This request was made in a letter dated 5 December 2013.
+It was refused on 5 January 2014.
+Counsels opinion was obtained on 26 January 2014 and legal aid was applied for immediately.
+It was eventually granted on 29 September 2014.
+There is no suggestion that the applicant was in any way responsible for delay between the submission of the application for legal aid and its grant.
+The application form was filed on 9 January 2015.
+There was no culpable delay on the part of the applicant.
+Duty of candour
+A respondents duty of candour in judicial review proceedings is summarised at p 125 of Fordhams Judicial Review Handbook (Sixth Edition 2012): A defendant public authority and its lawyers owe a vital duty to make full and fair disclosure of relevant material.
+That should include (1) due diligence in investigating what material is available; (2) disclosure which is relevant or assists the claimant, including on some as yet unpleaded ground; and (3) disclosure at the permission stage if permission is resisted.
+A main reason why disclosure is not ordered in judicial review is because courts trust public authorities to discharge this self policing duty, which is why such anxious concern is expressed where it transpires that they have not done so.
+In R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409 at para 50 Laws LJ said, There is a very high duty on public authority respondents, not least central government, to assist the court with full and accurate explanations of all the facts relevant to the issue which the court must decide.
+The duty extends to disclosure of materials which are reasonably required for the court to arrive at an accurate decision Graham v Police Service Commission [2011] UKPC 46 at para 18.
+The purpose of disclosure is to explain the full facts and reasoning underlying the decision challenged, and to disclose relevant documents, unless, in the particular circumstances of the case, other factors, including those which may fall short of public interest immunity, may exclude their disclosure R (AHK) v Secretary of State for Home Department (No 2) [2012] EWHC 1117 at para 22.
+The Rashid documents should have been disclosed.
+That is accepted by the respondent.
+They contained material that was obviously germane to the issues between the parties.
+The fact that they were not disclosed, despite numerous pointed requests for their production and the circumstance that, in some instances, their very existence was denied are deeply disturbing.
+The failure to locate the documents throughout the proceedings before the Divisional Court, the Court of Appeal and the House of Lords is not merely unfortunate, it is plainly reprehensible.
+But I am not persuaded that the non production of the documents until the hearing in Bancoult (No 3) was deliberate.
+The applicant has accepted as much, having said in his written case that the non disclosure of the documents may conceivably have been due to an oversight.
+I believe that the preponderance of evidence suggests that this is the most likely explanation, although it was a grievous oversight and one which, it is to be hoped, will be so regarded by the relevant authorities.
+An omission by government to disclose such material as was contained in the Rashid documents and its failure thereby to discharge its duty of candour was wholly unacceptable when such a fundamental right was at stake.
+The applicant has suggested that, in light of the seriousness of the failure to disclose these documents and in view of their high relevance, judicial criticism will not suffice and that the decision of the House of Lords should be set aside on account only of their non disclosure.
+I do not agree.
+If there are circumstances in which a failure to disclose documents would alone be cause for setting aside a judgment, they are not present here.
+For the reasons earlier given, however, I consider that the decision should be set aside and the appeal re opened.
+LADY HALE: (dissenting)
+This is another chapter in the epic saga of the Chagossians, their expulsion from their homeland and their persistent attempts to secure, if not their actual return, then at least the recognition of their right to do so.
+It is a saga which shows how the imperial common good is riven by competing theoretical justifications for empire: one, based in liberal imperialism, emphasises the civilising nature of empire and focuses on the good governance of colonies; the other, based in a utilitarian imperialism, instead focuses on how best to appropriate colonial possessions for the benefit of the imperial power (T Frost and CRG Murray, The Chagos Island cases: the empire strikes back (2015) 66 NILQ 263, 266).
+Thus far, it is the latter which has not only driven the actions of government but has also triumphed in the courts: Lord Hoffmann acknowledged that a choice between the liberal and utilitarian faces of imperialism did rest with the court, and decisively affirmed the utilitarian importance of the imperial interests at stake (Ibid, 287).
+Courts have, of course, to do justice according to law.
+Any doubts about whether it is legally possible for the imperial power to exile a people from their homeland have to be rigorously suppressed.
+That question of law has been finally resolved in these proceedings by the decision of the majority in Bancoult (No 2).
+Nevertheless, the decision to exile a people has to be taken in accordance with the law; and the people to whom it is of such momentous importance are entitled to expect the highest standards of decision making and the most scrupulous standards of fairness from the institutions of imperial government.
+The challenge in the main proceedings is to the rationality of the decision in 2004 to re impose the denial of the Chagossians right of abode in their homeland, the first denial in 1971 having been declared unlawful in Bancoult (No 1), a decision which was accepted by the government of the day.
+The challenge in this application is to the decision of the majority in Bancoult (No 2) that the governments decision was rational.
+The question for the appellate committee, as Lord Kerr has explained, was not whether it was rational to accept the conclusions of the feasibility study, but whether, on the basis of that report, it was rational to take the drastic decision to re impose the denial of the right of abode.
+The question for us is not whether the majority got the answer to that question wrong.
+We could no more set that decision aside on that basis than we could set aside their decision that the imperial government had the power to do this.
+The basis upon which this court could set aside the earlier decision is that explained by Lord Browne Wilkinson in R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 2) [2000] 1 AC 119, 132D: In principle it must be that your Lordships, as the ultimate court of appeal, have power to correct any injustice caused by an earlier order of this House.
+However, it should be made clear that the House will not re open any appeal save in circumstances where, through no fault of a party, he or she has been subjected to an unfair procedure.
+When an order has been made by the House in a particular case there can be no question of that decision being varied or rescinded by a later order made in the same case just because it is thought that the first order is wrong.
+The previous decision in that case was set aside because of Lord Hoffmanns connection with an intervener in the case.
+He should not have decided the case without that connection being disclosed to the other parties.
+The House did not therefore have to consider whether his participation made any difference to the result (although, given that the earlier decision had been reached by a majority of three to two and that at the re hearing a rather different decision was reached, there was surely a very real possibility that it did).
+I accept that, even if it has power to do so, this court should not set aside a decision reached after an unfair procedure if the result would inevitably have been the same had the procedure been fair.
+However, if it is clear that the procedure was unfair, this court should not struggle too hard to discover that the result would have been the same.
+It is for the court which rehears the case to reach its own conclusions.
+The parties are entitled to procedural as well as substantive justice.
+It is a proud feature of the law of judicial review of administrative action in this country that the public authority whose actions or decisions are under challenge has a duty to make full and fair disclosure of all the relevant material.
+Only if this is done can the court perform its vital role of deciding whether or not those actions or decisions were lawful.
+There is no doubt in this case that the Rashid documents should have been disclosed.
+They were obviously relevant to the issues in the case.
+Not only that, the government was asked for them many times and denied their existence.
+This is scarcely a good advertisement for the quality of government record keeping.
+No doubt files are sometimes transferred to the Treasury Solicitor for litigation purposes and their existence forgotten.
+But this should not happen in any well regulated system of file keeping.
+It was deeply unfair to the applicant, and to the court, that these documents were not disclosed.
+This was all the more unfair, given the sorry treatment of the Chagossians in the past and the importance of what was at stake for them.
+Given that context, this court should not take much convincing that their disclosure might have made a difference to the decision in the case.
+What light they do cast upon the rationality of the decision under challenge will be a matter for the court which does reconsider the case.
+To my mind, it is quite obvious that they might have made a difference and we certainly cannot be satisfied that they would not.
+They showed that the science of the report had been severely criticised both by the governments own expert and by an expert on behalf of the islanders; it matters not in what direction those criticisms had tended; what they did was cast doubt upon the authority of the report.
+They showed that the government had made it plain to the consultants what it wanted the conclusions to be.
+They showed that important changes had been made to the conclusion.
+They showed that the central findings about climate change had been changed.
+They showed that the islands were not in a cyclone belt.
+The question whether this might have made a difference has to be answered objectively rather than by reference to the particular judges who were then sitting on the case.
+Ultimately, this is a case about justice.
+While I deeply admire the industry and intellectual honesty of Lord Mance, which has led him to the conclusion that the decision with which he disagreed at the time should not be set aside, for the reasons given by Lord Kerr, with which I agree, I would grant this application.
+Justice to my mind demands that the applicant be given a fair chance to satisfy this court that the decision to re impose the denial of the islanders right of abode was not a rational one.
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+The appellant is the chair of the Chagos Refugees Group.
+The Group represents Chagossians whose removal from the British Indian Overseas Territory (the Chagos Islands BIOT) and resettlement elsewhere was procured by the United Kingdom government in the years 1971 to 1973.
+The circumstances have generated much national and now also international litigation.
+The sad history has been told on a number of occasions.
+It suffices to mention Chagos Islanders v The Attorney General [2003] EWHC 2222 (QB), R (Bancoult) Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] AC 453 and most recently in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 4) [2016] UKSC 35; [2017] AC 300.
+Following the last two decisions, it remains prohibited, under the BIOT Constitution and Immigration Orders 2004, for Chagossians to return to BIOT.
+Since the last judgment, the United Kingdom government has on 16 November 2016 announced its decision to maintain the ban on resettlement, after a study carried out by KPMG published on 31 January 2015.
+That decision is itself the subject of further judicial review proceedings.
+The present appeal concerns the establishing for BIOT of a marine reserve to be known as the Marine Protected Area by Proclamation No 1 of 2010.
+The Proclamation was issued by Mr Colin Roberts, Commissioner for BIOT, acting in pursuance of instructions given by Her Majesty through a Secretary of State.
+The Marine Protected Area (MPA) was established in a 200 mile Environment (Protection and Preservation) Zone (EPPZ) which had existed since Proclamation No 1 of 2003 dated 17 September 2003.
+Proclamation No 1 of 2010 said (para 2) that, within the MPA: Her Majesty will exercise sovereign rights and jurisdiction enjoyed under international law, including the United Nations Convention on the Law of the Sea, with regard to the protection and preservation of the environment of the [MPA].
+The detailed legislation and regulations governing the said [MPA] and the implications for fishing and other activities in the [MPA] and the Territory will be addressed in future legislation of the Territory.
+The creation of the MPA was accompanied by a statement issued by the respondent, stating that it will include a no take marine reserve where commercial fishing will be banned.
+No fresh legislation or regulations relating to fishing were in the event issued or necessary.
+Fishing was already controlled.
+From 1984 it was controlled within the three mile territorial waters and the contiguous zone which extended a further nine miles (to 12 miles from shore) under Proclamation No 8 of 1984 and the Fishery Limits Ordinance 1984.
+Control was subject to a power (exercised on 21 February 1985) to designate Mauritius for the purpose of enabling fishing traditionally carried on within those limits.
+Proclamation No 1 of 1991 and the Fisheries (Conservation and Management) Ordinance 1991 (the 1991 Ordinance) established a Fisheries Conservation and Management Zone extending 200 miles from shore, within which a fee carrying licence was required for any fishing.
+The Mauritian government was, however, informed that a limited number of licences would continue to be offered free of charge in view of the traditional fishing interests of Mauritius in the waters surrounding BIOT.
+Proclamation No 1 of 2003 establishing the EPPZ had no impact on fishing.
+The 1991 Ordinance was superseded by similarly entitled Ordinances in 1998 and then 2007, under which the licensing system was continued.
+The majority of fishing from Mauritius was inshore fishing carried out by the Talbot Fishing Company, owned by the Talbot brothers, one of whom was Chagossian.
+Their vessels were flagged to Mauritius until 2006 or 2007, when for economic reasons they were reflagged to Madagascar and the Comoros.
+A number of regular crew members on these boats were Chagossians.
+After the establishing of the MPA, and the accompanying announcement, the achievement of a no take reserve or zone was in practice accomplished by allowing existing licences to expire and by not issuing any fresh licences to the Talbot vessels or other vessels from outside BIOT for inshore or other fishing in the MPA.
+The present challenge has two limbs.
+One is that the decision to create the MPA had an improper ulterior motive, namely to make resettlement by the Chagossians impracticable.
+The other is that the consultation preceding the decision was flawed by a failure to disclose the arguable existence on the part of Mauritius of inshore fishing rights (ie within the 12 mile limit from shore).
+Both challenges are associated with the enforcement of a no take zone by the refusal since 2009 of fishing licences, since the impracticality of resettlement is said to derive from the loss by Chagossians of occupational skills and possibilities, now and at any future time when resettlement might be contemplated.
+At the core of the appellants case on improper purpose is a document published by The Guardian on 2 December 2010 and by The Telegraph on 4 February 2011, purporting to be a communication or cable sent on 15 May 2009 by the United States Embassy in London to departments of the US Federal Government in Washington, to elements in its military command structure and to its Embassy in Port Louis, Mauritius.
+The cable is recorded as having been passed to The Telegraph (and was presumably also passed to The Guardian) by Wikileaks.
+Its text purports to be a record, by a United States political counsellor, evidently a Mr Richard Mills, of conversation at a meeting on 12 May at the Foreign Office, London with Mr Roberts, Ms Joanne Yeadon, the Administrator for BIOT, and Mr Ashley Smith, the Ministry of Defences Assistant Head of International Policy and Planning.
+It also purports to refer to some previous meetings and a subsequent conversation involving Ms Yeadon.
+It starts with a one paragraph summary and ends with two paragraphs of comment, and contains 12 paragraphs of purported record in between.
+Reliance is placed on passages in it, which it is submitted show, or could be used to suggest, that Mr Roberts, Commissioner for BIOT, had and disclosed an improper motive in relation to the creation of the MPA.
+It is common ground that there was in fact a meeting between US officials and Mr Roberts and Ms Yeadon at the Foreign Office on 12 May 2009.
+The present proceedings took an unfortunate turn in this respect before the Administrative Court (Richards LJ and Mitting J).
+Burnton LJ had on 25 July 2012 given permission for Mr Roberts and Ms Yeadon to be cross examined on the purported cable, acknowledging that it must have been obtained unlawfully and in probability by committing an offence under US law, but saying: I do not see how the present claim can be fairly or justly determined without resolving the allegation made by the [appellant], based on the Wikileaks documents, as to what transpired at the meeting of 12 May 2009, and more widely whether at least one of the motives for the creation of the MPA was the desire to prevent resettlement.
+Before the Administrative Court, objections were made to the use of the cable in cross examination of Mr Roberts.
+One objection, which did not find favour with the Administrative Court (and which is not live before the Supreme Court), was that the Official Secrets Act and the UK governments policy of neither confirm nor deny (NCND) in relation to documents of this nature meant that Mr Roberts should not be required to answer questions relating to the purported cable.
+In relation to this objection, the Court ruled that Mr Roberts could be questioned on an 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 invite the Court to accept it as an accurate record of the meeting, and to rely on it evidentially.
+Various questions were put to Mr Roberts and answered on that basis, before Mr Kovats QC for the respondent asked for and obtained further time overnight to consider the position.
+The other objection was that use of the cable would be contrary to the principle of inviolability of the US missions diplomatic archive in breach of articles 24 and 27(2) of the Vienna Convention on Diplomatic Relations 1961, given effect in the United Kingdom by section 2(1) of the Diplomatic Privileges Act 1964.
+This further objection only occurred to the respondent during the second day.
+It was therefore only made the subject of submissions on the third day.
+This led to the first ruling being effectively over taken, by a further ruling that it would not be open to the appellant to invite the court to treat the cable as genuine or to find that it contained an accurate record of the meeting and that any further cross examination should proceed on that basis, without any suggestion that the purported cable was genuine.
+Mr Pleming applied for, but was refused immediate permission to appeal that ruling.
+In these circumstances, he indicated that he had no further cross examination of Mr Roberts, and on the next day conducted a cross examination of Ms Yeadon, limited as directed by the Courts ruling.
+By a judgment dated 11 June 2013, the Administrative Court rejected the appellants case both in so far as it was based on improper purpose and in so far as it was based on failure to disclose the arguable existence of Mauritian fishing rights.
+The Court of Appeal (the Master of the Rolls, Gloster and Vos LJJ) [2014] 1 WLR 2921 reached the same overall conclusions, but after taking a different view of the admissibility of the purported cable.
+It held that, since the cable had already been disclosed to the world by a third party, admitting it in evidence would not have violated the US London missions diplomatic archive.
+The Court of Appeal had therefore to consider whether the exclusion of the cable from use before the Administrative Court would or could have made any difference to that Courts decision on the issue of improper purpose.
+By a judgment given 23 May 2014, it decided against the appellant on both this issue and the issue relating to the omission of reference to arguable Mauritian fishing rights.
+The Supreme Court by order dated 7 July 2016 gave permission to appeal on the issue of improper purpose and directed that the application for permission to appeal on the issue relating to the omission of reference to arguable Mauritian fishing rights be listed for hearing with the appeal to follow if permission is granted.
+The respondent has in turn challenged the correctness of the Court of Appeals conclusion that use of the cable would not have contravened article 24 and/or 27(2) of the Vienna Convention.
+The admissibility of the cable
+I will take this issue first.
+In order to give some context to articles 24 and 27(2), the whole of articles 24, 25 and 27 of the Vienna Convention on Diplomatic Relations are set out: Article 24 The archives and documents of the mission shall be inviolable at any time and wherever they may be.
+Article 25 The receiving State shall accord full facilities for the performance of the functions of the mission.
+Article 27 1.
+The receiving State shall permit and protect free communication on the part of the mission for all official purposes.
+In communicating with the Government and the other missions and consulates of the sending State, wherever situated, the mission may employ all appropriate means, including diplomatic couriers and messages in code or cipher.
+However, the mission may install and use a wireless transmitter only with the consent of the receiving State. 2.
+The official correspondence of the mission shall be inviolable.
+Official correspondence means all correspondence relating to the mission and its functions. 3.
+The diplomatic bag shall not be opened or detained. 4.
+The packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use. 5.
+The diplomatic courier, who shall be provided with an official document indicating his status and the number of packages constituting the diplomatic bag, shall be protected by the receiving State in the performance of his functions.
+He shall enjoy person inviolability and shall not be liable to any form of arrest or detention. 6.
+The sending State or the mission may designate diplomatic couriers ad hoc.
+In such cases the provisions of paragraph 5 of this article shall also apply, except that the immunities therein mentioned shall cease to apply when such a courier has delivered to the consignee the diplomatic bag in his charge. 7.
+A diplomatic bag may be entrusted to the captain of a commercial aircraft scheduled to land at an authorized port of entry.
+He shall be provided with an official document indicating the number of packages constituting the bag but he shall not be considered to be a diplomatic courier.
+The mission may send one of its members to take possession of the diplomatic bag directly and freely from the captain of the aircraft.
+The submissions on inviolability under these provisions range widely.
+They cover the nature of the archive, its location, the circumstances in which material originating from the archive may continue inviolable and the reach of the concept of inviolability itself.
+As to the nature of the archive, Professor Denza concludes in Diplomatic Law, Commentary on the Vienna Convention on Diplomatic Relations (4th ed) (2016), at p 161, that, instead of trying to list all modern methods of information storage, it is probably better simply to rely on the clear intention of article 24 to cover all physical items storing information.
+Writing jointly in Satows Diplomatic Practice (7th ed, edited by Sir Ivor Roberts) (2017), at p 238, para 13.31, Professor Denza and Joanne Foakes, former Legal Counsellor to the Foreign and Commonwealth Office, say, after noting that the term archives is not defined in the 1961 Vienna Convention: but it is normally understood to cover any form of storage of information or records in words or pictures and to include modern forms of storage such as tapes, sound recordings and films, or computer disks.
+That can be readily accepted, as can be the proposition that copies taken of documents which are part of the archive must necessarily also be inviolable.
+As to location, Mr Kovats on behalf of the respondent points to the words at any time and wherever they may be in article 24, and to commentaries by Professor Eileen Denza in her work, cited above, pp 158 159, and by Professor Rosalyn Higgins (as she then was) in Problems and Process: International Law and how we use it (OUP) (1995), pp 88 89.
+Professor Denza observes that the words quoted mean that archives not on the premises of the mission and not in the custody of a member of the mission are entitled to inviolability, and that: If archives fall into the hands of the receiving State after being lost or stolen they must therefore be returned forthwith and may not be used in legal proceedings or for any other purpose of the receiving State.
+Professor Higgins wrote: Article 24 stipulates that the archives and documents shall be inviolable at any time and wherever they may be.
+It is clear that this last phrase is meant to cover circumstances where a building other than embassy premises is used for storage of the archives; and also the circumstances in which an archived document has been, for example, taken there by a member of the Secretariat staff for overnight work or even inadvertently left by him on the train or in a restaurant.
+What would happen if the Secretariat member, or a diplomat, took an overseas trip, and mislaid the document while abroad? The English High Court [in the Tin Council case: International Law Reports Vol 77 (1988) pp 107 145 at pp 122 123] was disturbed by the idea that wherever located could, on the face of it, mean even in Australia or Japan.
+It is true that an English court is not likely to be in a position to enforce the inviolability of a document from the authorities of another country where that particular document happens to be located.
+But it is entirely another thing to say that, because a document happens to be outside the jurisdiction, an English court is thereby entitled to treat it, in matters that do fall within its own competence, as non archival and thus without benefit of such inviolability as it is in a position to bestow.
+Again, so long as the document can be said to constitute part of the archive, a point to which I shall return, these statements appear not only authoritative in their sources, but convincing.
+As will appear, they also receive support from Shearson Lehman Bros Inc v Maclaine, Watson and Co Ltd; International Tin Council (Intervener) (No 2) [1988] 1 WLR 16.
+That is the House of Lords judgment in the Tin Council case, to the first instance decision in which Professor Higgins referred.
+The House in that case on any view accepted that there were some circumstances in which a document which was part of an archive, but for some reason no longer physically within the archive, remains inviolable.
+This brings me to the circumstances in which material originating from the archive may continue inviolable and the reach of the concept of inviolability itself.
+The appellant, whose case on this aspect was presented by Professor Robert McCorquodale, submits that the word inviolable, read in the context of the Convention, does not embrace inadmissibility.
+In his submission, the concept is directed at some degree of interference, of a more or less forceful nature, and this limited sense is the only sense which applies in all the places where the concept is deployed.
+The submission corresponds with the approach taken by the Court of Appeal, which picked up the characteristically trenchant view of Dr F A Mann, that Inviolability, let it be stated once more, simply means freedom from official interferences.
+Official correspondence of the mission over the removal of which the receiving state has had no control can be freely used in judicial proceedings.
+See Inviolability and Other Problems of the Vienna Convention on Diplomatic Relations in Further Studies in International Law, (1990) pp 326 327 and also [1988] 104 LQR, p 178.
+But Professor McCorquodales submission does not allow for the fact that a concept may embrace different shades of meaning according to the particular context in which it is deployed.
+The meaning of inviolability in the context of use of archive material in evidence was in fact the very subject of the House of Lords judgment in the Tin Council case.
+The issue arose there under article 7(1) of the International Tin Council (Immunities and Privileges) Order 1972, whereby it was provided: The council shall have the like inviolability of official archives as in accordance with the 1961 Convention Articles is accorded in respect of the official archives of a diplomatic mission.
+The Tin Council intervened in civil proceedings between private parties, relying on article 7(1) as rendering inadmissible various documents that the parties were proposing to adduce in evidence.
+The House was in these circumstances asked to address the operation of article 7(1) on various Agreed Assumptions of Fact set out in a document so entitled.
+One such assumption was that a Tin Council document was supplied to a third party by an officer or other staff member of the Tin Council without any authority.
+Mr Kentridge QC submitted that article 24 of the Vienna Convention and article 7(1) of the 1972 Order only afforded protection against executive or judicial action by the host state, so that, even if a document was stolen, or otherwise obtained by improper means, from a diplomatic mission, inviolability could not be relied on to prevent the thief or other violator from putting it in evidence.
+Lord Bridge, giving the sole fully reasoned judgment in the House, rejected this submission, saying (p 27F) that: The underlying purpose of the inviolability conferred is to protect the privacy of diplomatic communications.
+If that privacy is violated by a citizen, it would be wholly inimical to the underlying purpose that the judicial authorities of the host state should countenance the violation by permitting the violator, or anyone who receives the document from the violator, to make use of the document in judicial proceedings.
+The House went on to limit this to circumstances in which the third party receiving the document was aware of the absence of any authority to pass it to him (p 29B C).
+To a limited extent therefore, the Tin Council succeeded in establishing that its documents would have inviolability, precluding their use in civil proceedings.
+This was part of the ratio of the House of Lords decision, as appears at p 31D E, even though Lord Bridge went on to add that In the event the rejection of that [Mr Kentridges] argument turns out to be of minimal significance in the context of the overall dispute.
+The Canadian case of Rex v Rose An Dig 1946, Case No 76, p 161 was cited to the House in the Tin Council case, but not referred to by Lord Bridge in his judgment.
+Rose was convicted of furnishing secret material to the Soviet Embassy in reliance on documents stolen from the Embassy archive by a defector.
+Roses claim that the stolen documents used against him were immune from use was rejected, on the grounds that such a claim could not be admitted where the recognition of such immunity was inconsistent with the fundamental right of self preservation belonging to a State or where the executive had impliedly refused to recognise such immunity.
+The absence of inviolability in cases where state security is involved has a pedigree going back to the extraordinary Cellamare conspiracy in 1718 by Antonio dei Giudice, Prince of Cellamare and Ambassador of Spain to France, to kidnap and depose Philippe dOrlans, Regent of France, and replace him as Regent by Philip V of Spain: see Martens, Causes clbres du droit des gens, I, p 149.
+Rex v Rose is nonetheless controversial, and, more importantly for present purposes, neither of the grounds on which it rests applies to this case.
+In his LQR article, cited above, Dr Mann was taking direct issue with the House of Lords rejection in the Tin Council case of Mr Kentridges submission.
+The Court of Appeal was in my opinion bound to reject Dr Manns analysis, and I see no reason for adopting it.
+I also consider that the Court of Appeal was incorrect to identify Dr Manns analysis as representing the weight of opinion (para 64).
+Professor Denza says, at p 189, that: As regards use of the correspondence as evidence, article 27.2 may be regarded as duplicating the protection under article 24 of the Convention which gives inviolability to the archives and documents of the mission wherever they may be.
+Professor Jean Salmon of The Free University, Brussels, describes F A Manns view as regards article 27(2), in Further Studies in international law (OUP) (1990), p 226, as une vue trop restrictive de linviolabilit: Manuel de Droit Diplomatique (1994), p 244.
+The quotation from Professor Higgins, set out in para 12 above does not fit well with Dr Manns approach.
+S E Nahlik, Development of Diplomatic Law, Selected Problems, 222(III) Recueil des Cours (1990), 291 292 and B S Murty, The International Law of Diplomacy: The Diplomatic Instrument and World Order (1989) at p 382 comment critically on Rex v Rose, while J Wouters, S Duquet & K Meuwissen, The Vienna Conventions on Diplomatic and Consular Relations (OUP, 2013) at para 28.4.5.1 state, citing Professor Salmon, that: The inviolability of diplomatic/consular archives and documents entails that they cannot be opened, searched, or requisitioned without consent, and cannot be used as evidence.
+In Fayed v Al Tajir [1988] QB 712 the de facto head, later Ambassador, of the Embassy of the United Arab Emirates in London was sued by Mr Fayed in respect of an Embassy communication addressed to an Embassy counsellor.
+For unclear reasons diplomatic immunity was waived, but the question remained whether the document could be used in court.
+The Court of Appeal held that the document enjoyed immunity from use, and the dispute was non justiciable.
+Kerr LJ noted at p 736C E that the judge in Rex v Rose had concluded that diplomatic documents generally enjoyed inviolability, so anticipating the use of that term in the Vienna Convention, and that he had expressed the concept of inviolability at p 646 in wide terms: International law creates a presumption of law that documents coming from an embassy have a diplomatic character and that every court of justice must refuse to acknowledge jurisdiction or competence with regard to them.
+Kerr LJ also noted that this conclusion was supported by Denza on Diplomatic Law (1976), p 110.
+At p 736F G, he distinguished the actual decision in Rex v Rose as having been reached on the basis that a citizen could not invoke immunity in litigation with his own government and on the basis of the principle said to derive from the Cellamare conspiracy, neither of which bases had any relevance in Fayed v Al Tajir.
+In principle, therefore, inviolability of documents which are part of the mission archive under articles 24 and 27(2) extends to make it impermissible to use such documents or copies in a domestic court of the host country, at any event absent extraordinary circumstances such as those of the Cellamare conspiracy or Rex v Rose and absent express waiver of the inviolability by the mission state.
+But the application of this principle to any particular document is subject to two qualifications.
+First, the document must constitute or remain part of the mission archive, and, second, its contents must not have become so widely disseminated in the public domain as to destroy any confidentiality or inviolability that could sensibly attach to it.
+These two qualifications may sometimes, but certainly not always, coincide.
+Taking the first, in the present case, there is no indication from where the Wikileaks document emanates, but there is no suggestion that it is likely to have emanated from the United States Embassy in London.
+It was sent both to the State Department in Washington and elsewhere.
+There is no indication that the United States Embassy in London attached any reservation to or placed any limitation on the use or distribution of the cable by the State Department or any other authority to whom the cable went.
+The cable was simply classified as Confidential.
+In these circumstances, once the document reached the State Department or any other addressee, it was, so far as appears and in the form in which it was there held, a document in the custody of the Federal Government of the United States or that other authority, and not part of the London Embassy archive.
+Bearing in mind the probability that the Wikileaks cable was extracted from the State Department or some other unknown foreign location to which it had been remitted for information and use there, it is not therefore established, even as a matter of probability that the cable remained part of the archive of the London mission, when it was so extracted.
+On that simple basis, the Wikileaks cable was available for use and admissible as evidence of its contents in the present proceedings.
+I therefore arrive as the same conclusion on this point as the Court of Appeal, albeit for different reasons.
+Taking, second, the possibility of loss of inviolability due to a document from the mission archive coming into the public domain, I have come to the conclusion that this must in principle be possible, even in circumstances where the document can be shown to have been wrongly extracted from the mission archive.
+Whether it has occurred in any particular case will however depend on the context as well as the extent and circumstances of the dissemination.
+That seems to me to follow by analogy with the reasoning concerning the protection afforded by the law to confidential material (as opposed to that afforded on grounds of privacy and/or human rights) in cases such as Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 and PJS v News Group Newspapers Ltd [2016] UKSC 26; [2016] AC 1081, see also Passmore on Privilege, paras 7 039 and 7 042.
+In the present case, 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.
+In my opinion, the cable has as a result lost its inviolability, for all purposes including its use in cross examination or evidence in the present proceedings.
+On that ground, I would therefore reach the same conclusion as the Court of Appeal expressed in para 64 of its judgment.
+The allegation of improper purpose
+On the above basis, the question arising is whether the Court of Appeal was right to conclude that the Administrative Courts ruling that the cable was not available for use or admissible had no material effect on the proceedings and was not a ground for allowing the appeal.
+The Court of Appeal, after reviewing all the material available, including the cable, the evidence given and the Administrative Courts findings, concluded (para 93) that even if the cable had been admitted in evidence, the court would have decided that the MPA was not actuated by the improper motive of intending to create an effective long term way to prevent Chagossians and their descendants from resettling in the BIOT.
+A little earlier in its judgment, in para 89, the Court said that it did not accept that there is a realistic possibility that the [Administrative Courts] assessment of the evidence of Mr Roberts and Ms Yeadon would have been affected if the cable had been formally admitted as an authentic document; that in reaching this conclusion, it had borne in mind the need to exercise caution in denying relief on the ground that the legally correct approach would have made no difference to the outcome; but that it was satisfied that the admission of the cable in evidence would have made no difference.
+Before the Supreme Court, criticism was directed at the Court of Appeal for formulating its conclusions in terms of what would, rather than could have made a difference.
+Reference was made to well known authorities on the test applicable in cases of breach of natural justice (or unfairness) by public authorities, including Malloch v Aberdeen Corpn [1971] 1 WLR 1578 and R (Cotton) v Chief Constable of the Thames Valley Police [1990] IRLR 344, paras 59 60, per Bingham LJ.
+Reference was also made to the discussion, without decision, on the test applicable on an application to the Supreme Court to set aside a prior judgment of its own in Bancoult (No 4), cited in para 1 of this judgment.
+The precise test must depend on the context, including, in particular, how well placed the court is to judge the effect of any unfairness.
+In the present case, the complaint is of lack of opportunity for full cross examination and for the trial court to weigh the evidence it heard in the light of the cable, treating the cable as admissible.
+In these circumstances, I am prepared for present purposes to accept that the appropriate question is whether the admission of the cable for use in these ways could have made a difference.
+However, I also consider that this is in substance how the Court of Appeal approached the issue.
+The conclusion it reached (see para 22 above) was that there was no realistic possibility that the [Administrative Courts] assessment of the evidence of Mr Roberts and Ms Yeadon would have been affected if the cable had been formally admitted in evidence as an authentic document.
+Its statement at the end of para 89 that the admission of the cable in evidence would have made no difference must be read, in context, as a shorthand resum of this conclusion.
+A conclusion that there was no realistic possibility that the assessment would have been affected amounts, in substance, to a conclusion that the admission of the cable could not realistically have made a difference.
+Nonetheless, it is incumbent upon the Supreme Court to consider for itself whether the Court of Appeal erred in reaching that conclusion.
+The Administrative Court undertook in paras 53 to 77 of its judgment a full and careful review of the genesis and development of and decision to announce the MPA and a no take zone, which the Court of Appeal accurately summarised as follows: to Professor Sheppard, 75.
+The catalyst for making the MPA was a proposal made in July 2007 by an American environmental group, Pew Environmental Group, the environmental adviser for the BIOT.
+On 5 May 2009, Mr Roberts submitted a briefing note to the Secretary of State which explained the benefits of the proposal.
+These included that, because of the absence of a settled population and the strict environmental regime already in force, the BIOT was one of the few places in which a large scale approach to conservation was possible; and it offered great scope for scientific and climate change research.
+The Secretary of States reaction was enthusiastic.
+His private secretary emailed Mr Roberts to say that the Secretary of State was fired up after the meeting and enthusiastic to press ahead with the proposal. 76.
+This was followed by a meeting to discuss the proposal with US Embassy officials on 12 May 2009.
+This is the crucial meeting the gist of which was purportedly summarised in the copy cable dated 15 May 2009.
+Both Mr Roberts and Ms Yeadon attended the meeting and were cross examined about it.
+Mr Roberts denied making any reference to Man Fridays.
+He said that he recognised that the declaration of an MPA, if entrenched, would create a serious obstacle to resettlement.
+Ms Yeadon also denied that Mr Roberts had used the words Man Fridays or that he had said that establishing a marine park would put paid to resettlement claims.
+The Divisional Court said (para 61) that it found Ms Yeadon to be an impressive and truthful witness.
+Having referred to an important note of a meeting held on 25 March 2009, the court said at para 63: as Ms Yeadon understood, at official level, HM Government regarded the resettlement issue as settled by the 2004 Order, subject only to the pending decision of the Strasbourg Court (this is a reference to the claimants application which was eventually dismissed by the ECtHR on 20 December 2012: see para 7 above). 77.
+By a note dated 29 October 2009, Ms Yeadon proposed to Mr Roberts and the Secretary of State that consultation on the proposal to declare an MPA be launched on 10 November.
+Under the heading Risks, she noted that the risk of an aggressive reaction from the Chagossians and their supporters was high and said: they may claim that we are establishing a Marine Protected Area in order to ensure that they can never return to BIOT.
+This is not the case .
+The court said (para 65) that it was satisfied that in this passage Ms Yeadon again stated what she genuinely believed: that the proposal to establish an MPA was not to ensure that the Chagossians could never return. 78.
+In a note dated 30 March 2010, Ms Yeadon proposed that the Secretary of State should publish the report on consultation and declare his belief that an MPA should be established, but only after further work had been done.
+There followed a flurry of emails between officials.
+The Secretary of State did not accept Ms Yeadons advice.
+On 1 April, he announced the creation of an MPA in the BIOT which included a no take Marine Reserve where commercial fishing would be banned.
+Mr Roberts duly made the proclamation on 1 April. 79.
+The Divisional Court expressed its conclusion on the improper motive point in these terms: 74.
+This material makes it clear that it was the personal decision of the Foreign Secretary to declare an MPA on 1 April 2010, against the advice of his officials.
+There is no evidence that, in doing so, he was motivated to any extent by an intention to create an effective long term way to prevent Chagossians and their descendants from resettling in the BIOT.
+His Private Secretary could hardly have written on 7 May 2009, the day after the presentation of the proposal by Professor Sheppard to him, that he was really fired up about this if the proposal was presented as a cynical ploy to frustrate Chagossian ambitions.
+It is obvious that he was responding to a proposal presented by a man, Professor Sheppard, who was keen to see it adopted and put into effect for scientific and conservation purposes only.
+Later, on 31 March 2010, when the Foreign Secretary made the decision to go ahead immediately, the decision had nothing to do with Chagossian ambitions.
+The decision to override official advice can best be understood in the political context: Parliament was about to be dissolved.
+The Foreign Secretary no doubt believed that the decision would redound to the credit of the Government and, perhaps, to his own credit.
+It would do so the more if a decision with immediate effect was taken.
+Officials thought that this would create difficulties but it was the Foreign Secretarys prerogative to override their reservations and make the decision which he did.
+There is simply no ground to suspect, let alone to believe or to find proved, that the Foreign Secretary was motivated by the improper purpose for which the claimant contends. 75.
+It is significant that the Foreign Secretarys announcement contained the caveat which always accompanied public and private statements by officials: that the decision was subject to the pending judgment of the Strasbourg Court.
+Unless there was some deep plot to frustrate an adverse judgment, of which there is no evidence at all, this fact alone demonstrates that no sensible official in the FCO could have believed that the establishment of an MPA would fulfil the improper purpose alleged.
+Nor could it have done.
+The proclamation made by Mr Roberts on 1 April 2010 stated that: legislation and regulations The detailed governing the said Marine Protected Area and the implications for fishing and other activities in the Marine Protected Area and the territory will be addressed in future legislation of the territory.
+The only step taken since then has been to allow fishing licences current at 1 April 2010 to expire and to issue no more.
+What prevents the return of Chagossians to the islands is the 2004 Order, not the MPA.
+If, at some future date, HM Government decided or was constrained by a judgment of a court to permit resettlement or the resumption of fishing by Chagossians, nothing in the measures so far taken would prevent it or even make it more difficult to achieve. 76.
+For the claimants case on improper purpose to be right a truly remarkable set of circumstances would have to have existed.
+Somewhere deep in government a long term decision would have to have been taken to frustrate Chagossian ambitions by promoting the MPA.
+Both the administrator of the territory in which it was to be declared, Ms Yeadon, and the person who made the decision, the Foreign Secretary, would have to have been kept in ignorance of the true purpose.
+Someone Mr Roberts? would have been the only relevant official to have known the truth.
+He, and whoever else was privy to the secret, must then have decided to promote a measure which could not achieve their purpose, for the reasons explained above, while explaining to all concerned that the MPA would have to be reconsidered in the light of an adverse judgment of the Strasbourg Court.
+Those circumstances would provide an unconvincing plot for a novel.
+They cannot found a finding for the claimant on this issue. 80.
+In order to test Mr Plemings submission that the effect of the Divisional Courts ruling was to deprive him of the opportunity of properly testing the evidence of the witnesses, it is necessary to see what cross examination he was able to undertake.
+During day 1 and day 2 of the hearing, Mr Pleming cross examined Mr Roberts extensively about the meeting of 12 May 2009 by reference to various documents, including the cable.
+Although Mr Roberts was not prepared to answer questions as to whether the contents of the cable were accurate (because of the NCND policy), nevertheless he answered questions as to what he might or might not have said at the meeting: see day 1 pp 155 to 169 and day 2 at pp 9 to 41.
+Mr Pleming confirmed to the court that his general purpose in cross examining on the cable, paragraph by paragraph, was to establish its general accuracy by reference to relatively uncontroversial passages in it. 81.
+Despite his repeated reliance on the NCND policy, Mr Roberts gave extensive evidence of what was discussed at the meeting on 12 May.
+For example, in relation to one passage from the cable, he said: I can confirm that the general content and sense of the issues that you have just read out is consistent with the discussion we were having with the United States at the time.
+In relation to another passage, he said: I dont recall what language I would have used at the time but it would have been consistent with the general position that we were trying to set out to the United States. 82.
+At p 36 on day 2, Mr Roberts accepted that he did say to the US officials that the establishment of an MPA would in effect put paid to the resettlement claims.
+He said that this was a recognition of a reality that, if the MPA was entrenched (ie a law which would be impossible or difficult to repeal), this would be a serious obstacle to resettlement.
+He denied that he had said anything about footprints or Man Fridays: that was not the nature of the conversation.
+Mr Pleming sought to persuade the court to give a ruling as to whether Mr Roberts should be required to answer questions about the accuracy of the contents of the cable.
+Mitting J asked whether it was necessary to have this debate, since Mr Roberts had accepted that a consequence of establishing an MPA would be that the hopes of the Chagossians to return would be thwarted.
+Richards LJ was not sure how much more Mr Roberts could say.
+He had indicated why he declined to answer the ultimate question; but he had answered all the intermediate questions. 83.
+The court did not make any final ruling at this stage and Mr Pleming continued with his cross examination of Mr Roberts by reference to the cable: see day 2 pp 78 to 80.
+He put it to Mr Roberts that his purpose was to use the MPA to prevent or kill off the claims for resettlement; and that this policy shines out of the record of that meeting and is not a policy you would want to put in written form so that it could ever be seen by the Chagossians or in any litigation.
+Mr Roberts replied: No, I reject that suggestion entirely.
+I do not believe it is possible to keep a policy of that significance quiet.
+It is worth underlining some points about the history which arise from this account.
+First, the whole idea of an MPA and a no take zone was generated by independent environmental activity.
+An American environmental group, Pew, made the initial proposal to Professor Charles Sheppard, BIOTs independent environmental adviser, in July 2007.
+This led on 22 April 2008 to discussions between Pew and Ms Yeadon about the creation of an MPA, in which there would be a no take zone.
+On the same day, the Chagos Conservation Network, whose founders included Pew and Professor Sheppard, held its inaugural meeting at the Linnean Society, and expressed the view that there should be a no take zone within BIOT waters.
+On February 2009, The Independent reported in an article that the Chagos Conservation Trust, the RSPB, the Zoological Society of London and Pew were launching a plan for an MPA, which would be compatible with defence interests and would offer a possibility that some Chagossians might return as environmental wardens; a marine biologist from York University was reported as describing the attitude of the British government towards the Chagos Islands up to that time as one of benign neglect; and the British government itself was reported as saying it would work with the international environmental and scientific community to develop further the preservation of the unique environment. (The Mauritian governments response to this article was that the Chagos Islands were under its sovereignty, so that its consent would be required.)
+Second, it is clear that, from the outset, the relevant decision maker was to be the Secretary of State for Foreign and Commonwealth Affairs, Mr David Miliband, in person, not the civil servants who were directly or indirectly reporting to or advising him.
+Mr Miliband was first briefed on the idea of an MPA by a six and a half page note from Mr Roberts dated 5 May 2009.
+This was in terms to which no objection is or could be taken, and was followed up by a meeting with Mr Roberts and Professor Sheppard.
+The note identified and examined the numerous benefits and wide range of potential beneficiaries of an MPA.
+The benefits fell under the heads of conservation, climate change, scientific [research], development, reputational/political and security (the last being explained by Mr Roberts in a witness statement dated 1 May 2012 as relating to control of illegal, unregulated and unreported fishing).
+The note went on to examine risks.
+In that connection, it identified Mauritian sovereignty claims and a side deal done at the time of excision which gave Mauritius the right to apply for fishing licences free of charge, the Chagossian movements and the US military.
+The US military were not thought likely to oppose, and the note expressed confidence that reassurances could be given that they would not experience any rise in the security risk, impediment to freedom of manoeuvres or significant increase in environmental regulation.
+In relation to the Chagossian movements, the note said: Their plans for resettlement are based on the establishment of an economy based on fishing and tourism.
+In the specific context of BIOT this would be incompatible with a marine reserve.
+They are therefore hostile to the proposal, unless the right of return comes with it.
+They have expressed unrealistic hopes that the reserve would create permanent resident employment based on the outer islands for Chagossians.
+Assuming we win in Strasbourg [as in the event occurred], we should be aiming to calm down the resettlement debate.
+Creating a reserve will not achieve this, but it could create a context for a raft of measures designed to weaken the movement.
+This could include: presenting new evidence about the precariousness of any settlement (climate change, rising sea levels, known coastal defences costs on Diego Garcia) activating the environmental lobby contributing to the establishment of community institutions in the UK and possibly elsewhere committing to an annual visit for representatives of the communities to the outer islands on All Saints Day inclusion of a Chagossian representative in the reserve government. [an irrelevant redaction]
+It is not suggested that this note was other than an objective assessment of the proposal, or that it contains or suggests any improper motivation.
+As the Administrative Court stated (para 77), the only collateral factor relating to Chagossian ambitions which it shows is that the proposal might, in various ways, permit the Government to calm down the resettlement debate and attract support for the Governments position from the environmental lobby.
+The Administrative Court went on: This could not have the effect of creating an effective long term way to prevent resettlement and Mr Pleming rightly conceded that it would not taint a decision genuinely to further environmental and scientific purposes.
+That remains the position before the Supreme Court.
+The note was followed up by a meeting between the Secretary of State, Mr Roberts and Professor Sheppard, which was on the evidence principally devoted to a slide show by Professor Sheppard showing the environmental benefits of an MPA.
+As a result of the note and meeting, Mr Miliband was fired up by the proposal and enthusiastic to press ahead.
+Thirdly, the meeting a week later between Mr Roberts, Ms Yeadon and representatives of the United States Embassy was aimed at briefing a United States counsellor (Mr Richard Mills) interested in knowing more about the Chagos Islands position, no doubt as it related to the United States concerns identified in the note dated 5 May 2009.
+In his initial summary in para 1 of the cable, its author recorded Mr Roberts as saying that the BIOTs former inhabitants would find it difficult, if not impossible to pursue their claim for resettlement on the islands if the entire Chagos Archipelago were a marine reserve.
+The ensuing paragraphs included the following: 7.
+Roberts stated that according to the HGMs [sic] current thinking on a reserve, there would be no human footprints or Man Fridays on the BIOTs uninhabited islands.
+He asserted that establishing a marine park would, in effect, put paid to resettlement claims of the archipelagos former residents The final paragraph of comment included this: 15.
+Establishing a marine reserve might indeed, as FCOs Roberts stated, be the most effective long term way to prevent any of the Chagos Islands former inhabitants or their descendants from resettling in the BIOT.
+Accepting the Wikileaks memorandum as a genuine record of the meeting, it must be seen in that context.
+What would have concerned the United States were the consequences of an MPA, not the motivation.
+Further, the opening and the final two paragraphs are evidently comment or attempted summary by Mr Mills, while it is the intermediate paragraphs that purport to record the actual course of the discussion.
+In the case of The Guardian report of the cable, the intermediate paragraphs have interposed what are evidently journalistic captions.
+I note at this point Lord Kerrs suggestion (paras 84 and 86) that US military needs provided no reason for Mr Roberts and Ms Yeadon to assure the Americans, or ask them to confirm their requirement, that no resettlement would occur elsewhere in the BIOT.
+The obvious question which Lord Kerr considers to arise in this regard was not raised before the Supreme Court.
+But the answer is clear.
+The original exchange of notes between the United States and United Kingdom in 1966 provided that all of the BIOT be set aside for defence purposes and that any significant change of the BIOTs status that could impact the BIOTs strategic use would require US consent.
+Hence also, Mr Roberts statement in this connection in his note dated 5 May 2009 that We expect we will have our work cut out to reassure the US military that creation of a reserve will not result in trouble for them.
+Trouble could be any rise in the security risk, any impediment to the freedom of manoeuvre, or any significant raising of the bar in terms of environmental regulation.
+Lord Kerr himself says in para 88 that the theme that the MPA would prevent any resettlement of the islands . certainly preoccupied the Americans in May 2009.
+In November 2009 a consultation was launched in respect of the proposal.
+The motivation for the proposal was explained as being environmental and scientific, and various options were presented for public consideration.
+The consultation process ended in early March.
+The proposal then returned to the political arena, where the same picture of independent decision making by the Secretary of State emerges as nearly a year before.
+This concluded with Mr Miliband instructing Mr Roberts as Commissioner for BIOT to issue Proclamation No 1 of 2010 (para 2 above), and with an FCO statement dated 1 April 2010 to the effect that This will include a no take marine reserve where commercial fishing will be banned.
+More specifically, the events leading to this decision were as follows.
+A submission dated 30 March 2010 from Ms Yeadon had discussed how best to progress the proposal.
+In it, Ms Yeadon pointed to likely opposition and possible international moves by the Mauritian government and advised that, rather than any immediate decision, more time should be taken to work through the various issues and a positive, but not definitive, announcement should be made.
+However, at 18.06 on the same day, Mr Milibands office informed Ms Yeadon that Mr Milibands inclination [was] to be bolder and actually to decide to go ahead.
+At 8.30 next morning, Mr John Murton, at that time, it appears, the British High Commissioner in Mauritius, commented that he had no idea whether Mr Miliband would follow the recommendations of the day before, but that, if he went for the MPA immediately, they would face problems.
+Shortly before 11.47 next day, Mr Milibands office informed Ms Yeadon by telephone that Mr Miliband was minded to ask Mr Roberts to declare an MPA and a full no take zone, that no final decision has yet been taken, and that he would like to find some way of mitigating the Mauritian reaction.
+An internal email reaction by Mr Roberts at 12.07 proposed to give Mr Miliband a clearer steer.
+This led to an immediate rejection by another civil servant, Mr Andrew Allen, who at 12.31 stated his view that this approach risks deciding (and being seen to decide) policy on the hoof for political time tabling reasons rather than on the basis of expert advice and public consultation and was a very different approach to the one recommended the day before, which Mr Miliband was still considering.
+The reference to political time tabling is a clear reference to the general election due not later than five years after 5 May 2005, and in fact announced on 6 April 2010 for 6 May 2010.
+Mr Allens view was endorsed by Mr John Murton at 12.45, with the additional comment that while Obviously the Foreign Secretary is free to make whatever decision he chooses to declare the MPA today could have very significant negative consequences for the bilateral relationship with Mauritius, where an announcement of general elections was also expected, that same day, where ministers were uncontactable as a result and where the prime minister would greatly resent our timing.
+Mr Murton thought that there might be a market for a proposal to work with Mauritius as a privileged partner on management issues etc prior to a final decision on an MPA.
+These exchanges led to the preparation of a further note from Ms Yeadon addressed to Mr Roberts, and, when finalised, evidently also forwarded to the Secretary of State.
+The note reported the views expressed and repeated the previous days recommendation against any rapid decision.
+Mr Miliband did not accept the advice tendered on 30 and 31 March 2010.
+He said he had carefully considered it and given serious thought to the different possible options.
+But his decision was to instruct Mr Roberts to declare the full MPA on 1 April 2010.
+In these circumstances, the present issue can be approached, as the courts below have done, at two different levels.
+The first involves considering whether there is any real likelihood or risk that the Administrative Courts assessment of Mr Roberts and/or Ms Yeadons motivation would have been different if the Administrative Court had permitted further cross examination on the Wikileaks memorandum and had accepted that memorandum as evidence of what its contents purport to record.
+The second is whether there is any real likelihood or risk that any improper motivation on the part of Mr Roberts and/or Ms Yeadon affected the ultimate decision maker (Mr Miliband) or his decision.
+As to the first level, the Administrative Court heard both Mr Roberts and Ms Yeadon being cross examined on the most important passages of the cable, particularly the summary in the first and last paragraphs and the purported recital of actual discussion in para 7.
+Mr Roberts accepted that he said words to the effect that it was governmental policy that there should be no human footprint on the Chagos Islands (other of course than Diego Garcia), embracing within that term absence of scientific or wardens offices, temporary workers as well as resettlement.
+He accepted that he had said that establishing an MPA would in effect put paid to resettlement claims, but explained that this was recognition of a reality that the Chagossians themselves had originally raised and that it only related to an MPA entrenched by law.
+He said that entrenchment was in the event never pursued, and that the proposal for an MPA was at the time always subject to the outcome of the proceedings in Strasbourg.
+Ms Yeadon on the other hand denied that Mr Roberts had said that establishing an MPA would in effect put paid to resettlement claims.
+Resettlement was, in her view, already precluded by the 2004 Order (subject only to the pending decision of the Strasbourg Court), a point on which the Administrative Court accepted her evidence, finding it to be supported in a note of a meeting of 25 March 2009 between Mr Roberts, Ms Yeadon and a Chagossian delegation including the appellant and their solicitor, Mr Gifford.
+Both Mr Roberts and Ms Yeadon were adamant that Mr Roberts had not used, and would never have used, the highly emotive words Man (or Men) Fridays.
+The first tier question in these circumstances is whether further cross examination might have led to more material favourable to the appellants case of improper motivation on the part of Mr Roberts and/or Ms Yeadon and whether admission of the cable in evidence to counterbalance the evidence of Mr Roberts and Ms Yeadon might have led the Administrative Court to accept that either or both was, when advancing the proposal for an MPA, improperly motivated by the desire to prevent resettlement.
+As to this question, the extensive evidence given by Mr Roberts about the meeting on 12 May and Ms Yeadons own evidence give a picture which is generally and substantially consistent with that presented by the cable.
+In my opinion, Lord Kerrs references to an account or statements inconsistent with, or directly contrary to or flatly contradict[ing] or in obvious conflict (paras 91, 92, 94 and 107) are not borne out by comparison of the evidence and the cable.
+That too was how the Court of Appeal evidently saw the position: see its paras 80 to 82 quoted in para 24 above; and see also para 37 above.
+When it came to considering whether the Foreign Office representatives had some ulterior motive in their proposal for an MPA, the Administrative Court was also impressed by the evidence of Mr Roberts and Ms Yeadon.
+It is true that it did not directly address the contradiction between their evidence on the question whether Mr Roberts had said that an MPA would put paid to resettlement.
+But it accepted that a wish to preclude resettlement was not part of Ms Yeadons motivation, because she regarded resettlement as off the table anyway as a result of the 2004 Order, and it must also have accepted Mr Roberts evidence that what he was explaining to the United States counsellor was the practical consequences of an MPA, which is what would have been of interest to Mr Mills, rather than its motivation.
+It is difficult to see what further cross examination by reference to Mr Mills memorandum could have achieved.
+It is also difficult to think that admission of the memorandum, without more, would have outweighed the impression which the Court obtained from the oral evidence it heard.
+The memorandum is at the very lowest ambiguous as to whether the references to resettlement were uttered in circumstances indicating that they had a role in motivating the proposal for an MPA.
+On the face of it, it seems very unlikely that a British civil servant would have disclosed an improper motivation of this nature, rather than have been outlining the practical consequences of an MPA which is what would have concerned the Americans.
+It is equally difficult to think that the Administrative Court could have concluded, by reference either to further cross examination or to the cable itself, that Mr Roberts in fact used the phrase Man Fridays, which he and Ms Yeadon adamantly denied that he would ever have used.
+The phrase had already had considerable currency, including in court judgments, and was well known known in British circles as infamous.
+Lord Kerr in para 97 notes the Court of Appeals reference in para 82 of its judgment to the fact that Mr Pleming QC was not permitted to put to Mr Roberts the ultimate question.
+This the Court of Appeal identified as being whether the cable was accurate, before continuing but Mr Roberts had answered all the intermediate questions.
+Lord Kerr treats the ultimate question as being whether [Mr Roberts] had an explanation for the fact that he was recorded as having made certain statements which he denied having uttered.
+However, as to this, Mr Roberts was not party to the cable, and had, by his answers to the intermediate questions, given the only explanation that he could be expected to give about any differences, namely that the cable was wrong.
+Even more importantly in this connection, it is difficult to see that the Administrative Court could have been assisted in its task on the central issue, even if it had concluded that the phrase Man Fridays was used.
+In these circumstances, I do not consider that it has been shown that the Court of Appeal erred in concluding that neither further cross examination on the cable nor the cable itself, if admitted as evidence, would have led to any different outcome before the Administrative Court.
+Assuming that the test should be whether this could realistically have led to any different outcome, the answer would still, in my opinion, be negative.
+Let me assume however that this is wrong, and that Mr Roberts and/or Ms Yeadon did have and voice to the United States Embassy officials an illegitimate motive for the proposal for an MPA.
+The second level question then arises whether there is or can be any conceivable basis for thinking that this affected the ultimate decision maker, Mr Miliband, or his decision.
+In my opinion, the answer to this is even more clearly in the negative.
+The Administrative Courts conclusion in para 74, summarised in para 91 of the Court of Appeals judgment was that it was clear that it was the personal decision of the Foreign Secretary to declare an MPA on 1 April 2010, against the advice of his officials. and that this can best be understood in the political context: Parliament was about to be dissolved.
+The Foreign Secretary no doubt believed that the decision would redound to the credit of the Government and, perhaps, to his own credit.
+It would do so the more if a decision with immediate effect was taken.
+The documentation and exchanges available all show that the proposal was put up by civil servants to the Secretary of State.
+Bearing in mind its nature and context, this was bound to occur.
+It was put up in appropriate terms without any suggestion of any improper motive, both initially in May 2009 and ultimately in March 2010.
+The documentation and exchanges also show that he made his decision of 31 March 2010 on that basis, against his civil servants recommendation to give the proposal further thought and attention.
+Any suggestion that further cross examination of Mr Roberts and/or Ms Yeadon or the admission of the cable as evidence of its contents might have led the Administrative Court to conclude that Mr Miliband was motivated in his enthusiasm, not by his assessment of the merits of the proposal as such, but by extraneous considerations relating to a desire to make return difficult for the Chagossians, finds no basis in the documentation or exchanges and has to my mind no plausibility at all.
+There is no basis whatever for impugning Mr Milibands motivation.
+There is in particular no basis for suggesting that he may have connived at or joined with Mr Roberts and/or Ms Yeadon in a collusive exercise of documenting an objective decision making process, while at the same time pursuing and concealing an illicit agenda.
+The final matter for consideration on this basis is whether any relevance could attach to improper motivation on the part of one or more civil servants, when there is no indication whatever that it shaped or in any way influenced ministerial thinking.
+The answer must in my opinion be negative.
+If the Secretary of State as the ultimate decision maker, the actual decision making process and the decision were unaffected by an improper motive held by a civil servant, on a proposal bound because of its significance to be put up to the Secretary of State, the decision can and should stand by itself.
+That would on all the evidence be the present position, even if one assumes that the cable discloses, or would if deployed have led to a conclusion, that there was, some improper motivation on the part of Mr Roberts and/or Ms Yeadon in (or after) May 2009.
+Mr Pleming QC submits that an opposite conclusion flows from a form of reconfiguration of the principle in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560, and that the Secretary of State can be fixed with the knowledge, motives and considerations of civil servants when relying on them unless he proves otherwise.
+The problem with that submission is that, even if one or more civil servants had improper motives or considerations in mind, Mr Miliband did not rely on any decision or conduct of those civil servants to which such motives and considerations had any relevance.
+The relevant civil servants were, as stated, bound to put the matter before the Secretary of State.
+They did so in proper terms, ultimately counselling against any immediate decision to declare an MPA and no take zone.
+The Secretary of State rejected their recommendation, and made his own decision.
+Carltona does not have any bearing on this situation.
+It stands for the proposition that ministerial powers are commonly delegable and that, where this is the case and delegation occurs, the decision of an authorised official falls to be treated as the decision of the minister.
+Here, therefore, it may readily be accepted that, if a Minister were simply to rely on a civil servant, in effect to take a decision in the Ministers name, then it would be the knowledge, motives and considerations held by and influencing the civil servant that would be relevant.
+A ministerial decision may also be vulnerable to challenge if taken in ignorance of or on the basis of some mistake as to some material factor.
+Similarly, if a ministerial decision is arrived at by a collective decision making process involving a minister and his departmental civil servants, it may well be impossible to separate the ultimate ministerial decision from the knowledge and motives of civil servants involved in its preparation: see eg Bushell v Secretary of State for the Environment [1981] AC 75, 95 96, per Lord Diplock.
+But these are situations very far from the present case.
+In the present case, far from the relevant decision being taken by an official on behalf of the minister or being a collective decision, it is clear that the minister, Mr Miliband, took his own decision on the relevant matters.
+His civil servants put the matter up to him in terms to which no objection is taken as such, he formed his own strong views on the basis of the material put before him and he made the relevant decision.
+In these circumstances it is his state of mind that is critical, not that of his civil servants.
+I note here Lord Kerrs suggestion that the Secretary of States decision could be regarded as having been reached without regard to material factors or considerations if taken in ignorance of a concealed reason for the recommendation on which he acted (para 117) and/or without awareness of the view of the civil servants that the MPA would eliminate the chances of resettlement of the Chagos Islands, contrary to the advice on which he in fact acted (para 118).
+Neither of these points was part of the applicants case before the Supreme Court, which focused on the existence of an allegedly improper motive on the part of Mr Roberts and/or Ms Yeadon.
+Reliance on their suggested views as material information which should have been made available to the Secretary of State is a quite different matter.
+If this were sufficient to undermine a ministerial decision, then logically any irrelevant misconception possessed by any civil servant at any level in the civil service hierarchy in relation to any proposal ultimately reaching Cabinet level could undermine a Cabinet decision.
+There is in any event no basis for regarding any such views as material, since the appeal has been conducted on the basis that the creation of the MPA could not have the effect of creating an effective long term way to prevent resettlement: see para 28 above.
+The only suggested reason why an MPA or no take zone might preclude resettlement was that it would deprive Chagossians of an important source of food and livelihood.
+But this is not an objection deriving from the establishment of an MPA, but from a policy, reversible at any time, of refusing fishing licences.
+For these reasons, I would hold that no basis exists on which the Supreme Court would be justified in reaching a different conclusion to that reached in the Court of Appeal, upholding the Administrative Court, though for different reasons, on the point.
+Fishing rights
+The position in respect of this adjourned application for permission to appeal is unusual.
+I say at the outset that I consider that permission to appeal should be given.
+But permission to raise the issue of Mauritian fishing rights at all was only given by the Administrative Court on the limited basis that the appellant does not contend in these proceedings that the traditional or historical fishing rights relied on are legally enforceable, so that the question whether there are enforceable rights under international law would not arise for decision.
+The appellants case, as explained by Mr Pleming before the Administrative Court, was simply that there is credible evidence that HMG gave an undertaking to the Government of Mauritius which has subsequently been evidenced by preferential treatment for Mauritius registered vessels, and that this was an important part of the background yet was not put before consultees, who were in consequence misled.
+The Administrative Court held the appellant to that position, and Mr Pleming has not sought to resile from it before the Court of Appeal or Supreme Court.
+Further, he made clear that before the Supreme Court the only fishing rights relied on are Mauritian fishing rights.
+That means (and it is unnecessary to attempt any precise definition) fishing rights enjoyed by Mauritian registered and, quite probably, owned vessels, on which in practice Chagossians are often also found as crew.
+Yet, since the Court of Appeals judgment in May 2014, an arbitration between the Republic of Mauritius and the United Kingdom under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) has concluded in an award dated 18 March 2015, finding, inter alia: that the United Kingdoms undertaking to ensure that fishing rights in the Chagos Archipelago would remain available to Mauritius as far as practicable is legally binding insofar as it relates to the territorial sea.
+During the course of the hearing before the Supreme Court, the Government put before the Court a statement that: HM Government is committed to implementing the Dispositif made in 2015 following Arbitration between the UK and Mauritius over the Marine Protected Zone (MPA) around the British Indian Overseas Territory (BIOT).
+In line with the Dispositif, the UK will continue to work with Mauritius to agree the best way to meet our obligation to ensure fishing rights in the territorial sea remain available to Mauritius, so far as practicable.
+The Arbitral Award did not require the termination of the MPA but the UK will continue to approach discussions with an open mind about the best way to ensure proper conservation management of this unique marine environment.
+It therefore appears that, at the international level, the fishing rights, the arguable existence of which the appellant claims should have been recognised in the consultation paper, have not only been held to exist, but are rights, to which so far as they have been held to exist, the United Kingdom is committed to giving effect.
+In these circumstances, it is possible to wonder what further purpose these proceedings might have, since it is on these rights that the appellants objections to the MPA and/or no take zone centre.
+Ostensibly, the appellants case is that, if there was improper motivation and/or a failure properly to consult about arguable fishing rights, the MPA and no take zone should be declared to have been invalidly declared.
+But Mr Pleming indicated at the outset of the hearing before the Supreme Court that, at any rate in relation to the latter failure if accepted, it would be possible for a court to limit any invalidity to the extent of the arguable fishing rights.
+A later draft declaration which Mr Pleming submitted showed that, if it were feasible to contemplate a declaration of limited invalidity, the identification of what was involved in Mauritian fishing rights could still be controversial.
+That is however, as already indicated, another matter.
+I would accept that, if there was a failure properly to consult about arguable fishing rights, that could lead to a declaration of limited validity.
+In parenthesis, I add that the case based on improper motivation can also be related to fishing rights, since the reason why it is suggested that an MPA or no take zone might preclude resettlement is that it would deprive Chagossians of an important source of food and livelihood.
+I would therefore also have been attracted by (but do not, in the light of my conclusion in para 49 above, need to consider further) the suggestion that improper motivation might also have led to a limited declaration.
+Further, in either case, I would be minded to accept the Secretary of States case that any declaration could be related and limited to the no take zone, rather than the MPA.
+Mr Pleming objected that this was a new point, only raised by the Secretary of State after the hearing.
+But it is a pure point of law and the Administrative Court itself pointed out in para 75 of its judgment that the restrictions on fishing did not derive from the MPA itself.
+On the contrary, the MPA stated that the implications for fishing would be addressed in future legislation, and the only actual step taken regarding fishing was to allow existing fishing licences to expire and to withhold further fishing licences.
+The appellants real complaint can therefore be identified as being to the current policy, in so far as it has been to refuse fishing licences giving effect to the Mauritian fishing rights now recognised by the UNCLOS tribunals award.
+That is essentially a limited complaint, which could, it seems to me, appropriately be addressed by a limited declaration as to the invalidity of such a policy of refusal.
+I must however revert to the case as it stands, however artificially, before the Supreme Court, on the basis that the appellants only complaint is that there was, at the time of the consultation, credible evidence that the United Kingdom had given an undertaking to the Government of Mauritius to permit Mauritian fishing in the territorial waters of the Chagos Islands (free of charge), that these arguable rights should have been mentioned, that the consultation process was defective accordingly and that the MPA, or (for reasons I have indicated) at least the no take zone, was invalid, at least to the extent that it excluded Mauritian fishing.
+The UNCLOS tribunal in its award found that the United Kingdom was in breach of its obligations under UNCLOS article 2(3) (sovereignty over the territorial sea is exercised subject to the Convention and to other rules of international law) and article 56(2), which reads, less ambiguously: In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention.
+The breaches so found concerned the relationship between the United Kingdom and Mauritius.
+It was the tribunals view that, after a second meeting between United Kingdom and Mauritian representatives on 21 July 2009, there remained outstanding a number of unanswered issues, as well as information that the United Kingdom promised to provide to Mauritius, but that, despite this, the United Kingdom had in March 2010 elected to press ahead with the final approval and proclamation of the MPA without providing any convincing explanation for the urgency with which it did this on 31 March and 1 April 2010.
+The issues of both law and fact before the tribunal were, therefore, very different from that now before the Supreme Court, which is narrowly focused on the adequacy of the public consultation.
+It is unnecessary to go back in detail over all the issues which were considered in the courts below.
+I can summarise the position as it emerges, in my opinion, from the evidence and documents as follows.
+First, the actual extent of inshore fishing by Mauritian vessels in territorial waters, after the Chagossians left and until the no take zone affected licensing, was always limited, but it was significant for those involved, including the owners and Chagossian crew members.
+The principal vessels involved were those of the Talbot brothers.
+Secondly, there was credible evidence in the United Kingdom Governments possession (though not all of it necessarily available to Mr Roberts or Ms Yeadon) as to the existence of Mauritian fishing rights dating back to undertakings given in 1965.
+However, thirdly, extensive legal advice (for which privilege has not been waived) was taken on this subject during the period January to November 2009, and, on the basis of that advice, both Mr Roberts and Ms Yeadon understood that Mauritius did not have legal rights to fish in BIOT territorial waters, which prevented the United Kingdom Government from establishing an MPA, including a complete no take zone.
+Fourthly, for that reason, after considering the position and receiving legal advice Mr Roberts and Ms Yeadon did not believe that Mauritius or the Chagossians had, or might have had, any such rights, and Ms Yeadon in particular saw the 1965 undertaking as being of a political, not legal, nature; and, as a result, no reference was made in the consultation document to any such rights.
+Fifthly, despite the appellants reliance on a paper prepared by Professor Brownlie for and read at a United Kingdom Mauritius meeting in January 2009, containing at most only a fleeting suggestion of such rights, Mauritius never really advanced such rights with any clarity at any time throughout 2009 to March 2010, referring instead constantly to its sovereignty claim and refusing on that basis to engage with any consultation.
+In particular, it made no suggestion of any such rights in the second United Kingdom Mauritius meeting in July 2009 or in a submission to the House of Lords in February 2010.
+The Administrative Court correctly so concluded (para 158).
+Sixthly, Mauritius had the opportunity of responding to the consultation and making the point that it had fishing rights, but did not avail itself of this.
+Chagossians and others also had the opportunity of responding, and some did: i) Mr Gifford and Chagossians resident in Crawley made representations against any no take ban in the territorial waters, on a basis summarised as follows: Very limited fishing anyway, so limited environmental benefit from a ban.
+Could have significant consequences for the Chagossians.
+What effect on the Chagossian community? Should not be possible to use MPA as a way of entrenching no right of abode.
+Inconsistent, as far as concerns fishing, with the law of the sea (UNCLOS). ii) The Diego Garcian Society also representing Chagossians wrote in favour of: 4th option, a no take marine reserve for the whole of the territorial waters and EPPZ/FCMZ with exceptions for certain types of pelagic fishery (eg tuna) and artisanal fishing by Diego Garcians and other Chagossian fishing projects only. iii) The members of the Chagos Refugees Group, led by the appellant and joined by Mr Gifford as their lawyer submitted that the consultation process was premature (and flawed) as putting the cart before the horse, inter alia, because it needed to be with the consent of the Chagossians, rather than pushed ahead unilaterally, because the sovereignty of Mauritius was also involved and because: [There] Are fishing rights which they need in their sea. and Need human rights first wrong to come before ECHR judgment.
+The Divisional Court observed (para 160): The potential impact of an MPA on commercial fishing was squarely raised and must have been obvious to all concerned.
+The responses from fishing interests show that the impact was clearly understood.
+If anyone wished to raise an argument that a ban on fishing would be incompatible with Mauritian fishing rights, they were free to do so.
+Against that background, the omission of express reference to the point in the consultation document itself is in our view a matter of no significance.
+It did not affect the fairness of the consultation or the validity of the MPA decision taken following that consultation.
+The Court of Appeal rejected the appeal on this ground, largely for the same reasons given by the Divisional Court (para 108), and specifically agreed with the last two sentences quoted above (para 111).
+The case open to the appellant is that there was credible evidence of Mauritian fishing rights, deriving from an undertaking given by the United Kingdom Government to the Government of Mauritius and subsequently evidenced by preferential treatment given to Mauritius registered or owned vessels.
+Approaching this case in the light of the matters which I have mentioned, I have no hesitation in agreeing with the assessment of both courts below that the absence of any mention of such evidence or of the arguable fishing rights to which it related does not undermine the consultation, make it unfair or justify setting it or any decision consequent upon it aside.
+It was obvious, as the Court of Appeal also said (para 112), that at least one of the options would affect inshore fishing, and threaten the livelihood of vessels which had previously been licensed to fish in territorial waters.
+It was open to Mauritius or anyone affected to raise this objection in response to the consultation.
+Mauritius notably did not respond at all.
+Others made various points about the option of a no take ban in territorial waters and/or the loss of alleged fishing rights.
+It would be wholly inappropriate to treat the consultation process as invalid, when the party to whom the alleged rights belonged (the Republic of Mauritius) had full opportunity of asserting them in response to the consultation, and when others indirectly involved actually took advantage of the opportunity of raising them.
+Finally, 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 such fishing rights.
+Conclusion
+For these reasons, I would grant permission to appeal on the issue of fishing rights, but dismiss the appeal both on the issue of improper motivation and on the issue arising from the failure to mention the possible Mauritian inshore fishing rights in the consultation document before the decision to declare an MPA and a no take zone.
+I repeat that the latter issue has been before the Supreme Court solely on the basis that there was convincing evidence that such Mauritian fishing rights existed.
+The significance of the finding in the UNCLOS tribunals arbitration award dated 18 March 2015 that such fishing rights do actually exist is not before us.
+In particular, whether that finding is capable of having any and if so what effect in domestic law, as regards either the MPA or the no take zone is not before us.
+LORD SUMPTION: (with whom Lord Neuberger, Lord Clarke and Lord Reed agree)
+I agree with the disposal proposed by Lord Mance and with his reasons.
+I add a judgment of my own to address the status and use in evidence of information about the contents of diplomatic correspondence which has come into the hands of third parties.
+This question is the subject of the Secretary of States cross appeal, and raises points of some general importance.
+The leaking of governmental documents and their widespread distribution through the internet is a phenomenon of our time.
+The status of leaked documents in the public domain is an issue which is likely to recur.
+The basis in modern international law for the protection of the documents of a diplomatic mission is article 24 of the Vienna Convention on Diplomatic Relations (1961), which provides that the archives and documents of the diplomatic mission shall be inviolable at any time and wherever they may be.
+Article 27.2, which provides for the inviolability of the official correspondence of the mission, was added (as part of an article about freedom of communication) in order to deal with the problem of the interception en route of communications not made by diplomatic courier or diplomatic bag, which would not necessarily be part of the missions archives or documents at the time of interception: see ILC Yearbook 1958, i, 143, paras 34 35, and Denza, Diplomatic Law, 4th ed (2016), 189 190.
+These provisions have the force of law by statute in the United Kingdom, under the Diplomatic Privileges Act 1964.
+Any issue of this kind is likely to give rise to two fundamental questions.
+The first is how a document is to be identified as part of archives and documents of a diplomatic mission.
+The second is what it means to describe such a document as inviolate.
+Traditionally, the protection accorded to a missions documents was viewed as a particular aspect of the inviolability of its premises and the diplomatic bag, and of the immunities of diplomatic couriers.
+This was why, upon a cessation of diplomatic relations, when the premises of the mission would become entitled to a lesser degree of protection, the practice was to destroy the missions archives or entrust them to a protecting power as the diplomats left.
+As a general rule, the movable property of a mission was protected only so far as it was located on its premises, and indeed this is still the position today: see article 22.3 of the Convention.
+Before the Vienna Convention came into force in 1964, the status of a missions archives located outside diplomatic premises was therefore uncertain.
+To resolve that uncertainty, the words at any time and wherever they may be were added to article 24 at the United Nations Conference on Diplomatic Intercourse and Immunities which approved the final text of the Convention.
+The archives and documents of a mission were now to be protected as such and not only by virtue of their presence in a protected location or in protected hands.
+As the French delegate explained when introducing the amendment, the object was to establish clearly the absolute inviolability of the missions archives and documents as such, and not merely as part of the furniture of the mission: Official Records, i, (1962), 148 (para 2).
+A diplomatic mission is not a separate legal entity.
+Its archives and documents belong to the sending state.
+But the protection of article 24 is limited to the archives and documents of the mission.
+It does not extend to those of any other organ of the sending state.
+The latter may be protected by other rules of law: for example by the criminal law, the law of confidence or the law of copyright.
+But they are not protected by the Vienna Convention.
+Against that background, what is it that identifies a document as belonging to the archives or documents of the mission, as opposed to some other organ of the sending state? (I will return below to the particular problems raised by their unauthorised possession by third parties).
+The test is not their location, for they are protected wherever they may be.
+It must necessarily be whether they are under the control of the missions personnel, as opposed to other agents of the sending state.
+The draftsmen of article 24 were thinking in terms of physical documents.
+But retrievable electronic files are also documents and may be part of an archive.
+The same protection therefore applies to them, provided that access to them is under the control of the missions personnel, whether directly or by virtue of the terms on which the mission transmitted the document to another governmental entity.
+This appeal is not the occasion for determining the exact circumstances in which a mission will be treated as having control over a document by virtue of the terms on which it transmits it, because there is no suggestion that the US diplomatic cable was released on terms.
+The relevant point for present purposes is that because the designation of a document as that of the mission depends on control, its origin and content is in itself irrelevant.
+Thus the archives and documents of a mission may include original or copy documents which emanate from some other organ of the sending state or from a third party, in which case so far as they are under the control of the missions personnel they will enjoy the same protection as the missions internally generated documents.
+Correspondingly, copy documents or originals emanating from the mission may be found in the archives of another organ of the state (say, its foreign ministry) where they will not enjoy the protection of article 24.
+Inviolability is a term variously used in the Convention about diplomatic premises (articles 22, 30), documents (articles 24, 30), official correspondence (article 27), diplomatic personnel (articles 27, 29, 31, 38, 40) and personal property (article 30).
+But it is a protean word, whose meaning is necessarily sensitive to its context and purpose.
+It used to be thought that all diplomatic privileges and immunities reflected the extra territorial character of a foreign sovereign and, by extension, of its diplomatic representatives.
+But in the modern law, its justification is pragmatic and wholly functional.
+In the words of the fourth recital to the Convention, it is intended to ensure the efficient performance of the functions of diplomatic missions as representing States.
+It has been recognised ever since Vattel (Droit des Gens, Bk IV, 123), the first writer to deal with the question, that the basis of the rule of international law is that the confidentiality of diplomatic papers and correspondence is necessary to an ambassadors ability to perform his functions of communicating with the sovereign who sent him and reporting on conditions in the country to which he is posted.
+The purpose of article 24 in protecting a missions archives qua archives, and not as mere items of property, is to protect the confidentiality of the missions work, without which it is conceived that it cannot effectively represent the sending state.
+In particular, it is to protect the privacy of diplomatic communications: Shearson Lehman Bros Inc v Maclaine Watson & Co (International Tin Council intervener) (No 2) [1988] 1 WLR 16, 27G (Lord Bridge).
+The confidentiality of such documents does not depend on their particular contents or subject matter, which is not a matter which a domestic court could properly examine, but on their status as part of the archives and documents of a diplomatic mission protected by article 24 of the Convention.
+Dr F A Mann, a notable opponent of the larger claims of international law in the domestic legal world, was of the opinion that the inviolability of a missions archives and documents served only to protect them from interference by the receiving state, for example by seizing them or allowing them to be the subject of compulsory legal process: Inviolability and other Problems of the Vienna Convention on Diplomatic Relations, Further Studies in International Law (1990), 326 338.
+A rather similar view was put forward at the United Nations Conference preceding the adoption of the Convention, as a reason for rejecting the addition of the words wherever they may be, but it is clear that this objection did not find favour with the majority: see Official Records, i (1962), 149, 150 (paras 9, 22).
+The Court of Appeal, however, appear (paras 39 42, 58 61) to have adopted it in the present case.
+I agree with Lord Mance that so narrow an approach is not supported by the generality of commentators.
+It is also, in my view, inconsistent with the concept of inviolability.
+Whatever may be involved in that concept, it is clear that article 24 is not only concerned with the duties of the receiving state but describes the status of a missions archives and documents erga omnes.
+It is the obligation of the receiving state to give effect to that status.
+That obligation, extends beyond simply refraining from violating it itself.
+As the International Law Commission observed in its report of 1957 to the United Nations General Assembly, the receiving State is obliged to respect the inviolability itself and to prevent its infringement by other parties: ILC Yearbook 1957, ii, 137.
+It was on this basis that the International Court of Justice held in US Diplomatic and Consular Staff in Tehran (1980) ICJ Rep, 3, at paras 61 63, 66 67, 69, 77 that the failure of the government of Iran to intervene to prevent or terminate the occupation of the US embassy in Tehran by militants was a violation not only of articles 22 (premises) and 29 (diplomatic agents), which impose express obligations on the receiving state to protect against action by third parties, but also of article 24 (archives and documents), which contains no express provision of that kind.
+I make this point in order to correct what I regard as an error of the Court of Appeal.
+But it is not decisive of the present appeal, which is concerned with the legitimacy of a court receiving into evidence a document emanating from the archives and documents of a diplomatic mission.
+If this is a violation of article 24, the violation does not consist only in the receiving state failing to protect the archives and documents against third party action.
+The court is itself an organ of the receiving state, and the violation consists also in its receipt and use of the material.
+No one doubts that if the document has been communicated to a third party with the actual or ostensible authority of the responsible personnel of the mission, any immunity in respect of it is lost.
+In the form communicated, it is no longer the missions document: Shearson Lehman Bros Inc v Maclaine Watson & Co (International Tin Council intervener) (No 2) [1988] 1 WLR 16, 27 28.
+But what if the document, or more plausibly a copy of the document or information about it, has come into the hands of a third party without authority? Subject to an important reservation (see below) I think that in that case there is a violation if the courts of the receiving state receive it in evidence.
+This is not, as is sometimes suggested, because of the words wherever they may be.
+They have a different purpose, as I have explained.
+It is because of what is involved in the notion of inviolability, and in the receiving states obligation to give effect to it.
+The real objection is to the receiving state employing them for a purpose inconsistent with their confidential status.
+Article 25 of the Convention, which is not one of the articles scheduled to the Diplomatic Privileges Act but informs the interpretation of those that are, requires the receiving state to accord full facilities for the performance of the functions of the mission.
+As Professor Denza observes (Diplomatic Law, 4th ed (2016), 170), article 25 is not an additional source of rights but an ancillary provision intended to make effective those facilities which are assured by other provisions of the Convention.
+Thus it has been held that as a matter of public international law it prevents the courts of the receiving state from acting in such manner as to obstruct the mission in carrying out its functions, for example by permitting the judicial enforcement of judgments against embassy property: Alcom Ltd v Republic of Colombia [1984] AC 580, 599.
+A similar view was expressed by the German Constitutional Court in the Philippine Embassy Bank Account Case (1977) 46 BVerfGE 342, 395, 397 398 and by the United States District Court for the District of Columbia in Liberian Eastern Timber Corp v Government of the Republic of Liberia (1987) 89 ILR 360, 363.
+In my opinion, similar considerations apply to the reception in evidence by the courts of the receiving state of confidential documents obtained directly or indirectly through a violation of a missions archives and documents.
+Article 24 gives effect to the confidential status of these documents, which is necessary to the functioning of the mission.
+Their inviolability necessarily imports that the state will take reasonable steps to prevent the violation of that status and will not itself be party to its violation.
+In Rose v The King [1947] 3 DLR 618, a decision of the Appellate Division of the Supreme Court of Quebec, the appellant had been convicted on charges of conspiracy with (among others) members of the embassy of the Soviet Union in Ottawa to violate the provisions of the Official Secrets Act.
+The evidence against him had included documents abstracted by a defector without authority from the files of the Russian military attach and delivered to the Canadian government.
+The appeal was dismissed on the controversial ground that diplomatic immunity was subject to an exception for cases where embassy personnel had conspired against the security of the receiving state.
+But, subject to this supposed exception, Bissonnette J, in a judgment with which the rest of the court concurred, considered that as a matter of customary international law no court had jurisdiction or competence to take cognizance of documents emanating from a foreign embassy without the consent of the sending state.
+At p 646, he observed: International law creates a presumption of law that documents coming from an embassy have a diplomatic character and that every court of justice must refuse to acknowledge jurisdiction or competence in regard to them.
+Fayed v Al Tajir [1988] QB 712 was a decision of the Court of Appeal in England in a defamation action.
+The defendant, who was described as the de facto ambassador of the United Arab Emirates in London, had made the statements complained of in internal correspondence of the embassy, copied to the foreign minister.
+The relevant letter was subsequently communicated to the plaintiff by its recipient, a counsellor at the embassy, without authority.
+The issue was held to be non justiciable, and the letter subject to absolute privilege.
+But Kerr LJ (with whom Croom Johnson LJ agreed) considered that the letter was also protected by article 24 of the Vienna Convention.
+In Shearson Lehman Bros Inc v Maclaine Watson & Co (International Tin Council intervener) (No 2) [1988] 1 WLR 16, the House of Lords considered the deployment in evidence of copies of documents of the International Tin Council which had been obtained by third parties.
+By statute, the Councils official archives enjoyed the same protection as those of a diplomatic mission.
+The Appellate Committee held that the question depended on whether the third party had obtained them with the authority of the Council or in circumstances where he could reasonably assume authority.
+On the assumption that a document forming part of the Councils archives had been communicated to the third party without authority, Lord Bridge (with whom the rest of the Appellate Committee agreed) held at p 27G H that it would be wholly inimical to the underlying purpose that the judicial authorities of the host state should countenance the violation by permitting the violator, or any one who receives the document from the violator, to make use of the document in judicial proceedings.
+Cases in other jurisdictions are rare, but it may be noted that the German Federal Court has applied a similar principle to evidence derived from the monitoring of telephone lines contrary to the corresponding principle of the Vienna Convention on Consular Relations (1963): BGHSt 36, 396 (4.4.1990).
+There is, however, a reservation of some importance which follows from the nature of the protection accorded by article 24 of the Convention, as I have analysed it.
+It concerns documents which, although indirectly obtained without authority from the archives and documents of a mission, have entered the public domain.
+By that I mean that they have been disclosed not simply to a few people or in circumstances where it would take some significant effort on the part of others to discover their contents, but that they are freely available to any one who cares to know.
+This was not a question considered in any of the cases cited in the previous paragraph, and may not have arisen on the facts.
+In principle, as I have explained, article 24 protects documents under the control of the mission, but not documents which never were or are no longer under its control.
+The extension of the protection to documents under a missions control which (or the contents of which) have come into the hands of third parties without authority is necessary in order make article 24 effective by preserving the confidentiality of unlawfully communicated documents in accordance with the articles purpose.
+The English courts cannot, consistently with the privileges and immunities of a diplomatic mission, allow themselves to be made the instrument by which that confidentiality is destroyed.
+But once the documents have been published to the world, it has already been destroyed.
+There is nothing left to be preserved of the interest protected by article 24.
+It is arguable that where a document has been put into the public domain by the very person who has violated the archives and documents of the mission, he should not be allowed to rely on the fact, although the difficulties of the argument have often been pointed out, for example by Lord Goff in Attorney General v Guardian Newspapers (No 2) 1990] 1 AC 109, 286 287.
+But that is a refinement which does not arise on the facts in the present appeal, and I need not consider it further.
+The Secretary of States cross appeal faces, as it seems to me, two distinct and equally insuperable difficulties.
+The first is that, although the cable relied upon by Mr Bancoult must have emanated directly or indirectly from a US government source, the Secretary of State is unable to establish that it was obtained by Wikileaks, and through them by The Guardian and The Telegraph, from the archives of the US embassy in London as opposed to some other unprotected organ of the US government.
+He has not therefore established the essential factual foundation for reliance on article 24 of the Vienna Convention.
+Secondly, even if the cable had come from the archives of the US embassy, the document has entered the public domain.
+Mr Bancoult was not party to the leaking of the cable and has not put it in the public domain.
+He has merely made use of what is now the common knowledge of any one who cares to interest himself in these matters.
+In my opinion it cannot possibly be a violation of the US embassys archives or documents for Mr Bancoult to make use in litigation of the common knowledge of mankind simply because it was once confidential to the US embassy in London.
+Nor could it be a violation for the English courts to take cognizance of a document which has escaped from the control of the US embassy and whose confidential status long ago came to an end.
+It was suggested to us that even if there was no remaining confidence in the document or its contents, the missions archives and documents would be violated by making findings about its authenticity, since those findings would inevitably increase their interest and value.
+For the same reason it was suggested that to do this without the consent of the sending state would amount to the exercise of compulsion.
+I do not accept this.
+If the contents of the document are no longer protected from public scrutiny because they are in the public domain, I cannot see that any greater protection can attach to inferences drawn from those same contents, whether about its authenticity or anything else.
+albeit for reasons somewhat different from those of the Court of Appeal.
+In those circumstances, I would dismiss the Secretary of States cross appeal, LORD KERR: (dissenting) Improper motive
+(i) Background
+The only legitimate purpose for introducing a marine protected area (MPA) around the Chagos Islands was to protect marine life.
+If it could be demonstrated that this was not the reason that it was introduced, or that there was a collateral purpose for its introduction, the establishment of an MPA would be unlawful.
+It is a centrepiece of the appellants case that his counsel was denied the opportunity to pursue a line of cross examination that would have revealed an ulterior motive for the MPA.
+This claim prompts the need for a careful examination of the circumstances in which Mr Plemings cross examination of Mr Roberts and Ms Yeadon before the Divisional Court was curtailed.
+It is also necessary to look closely at how this matter was considered by the Court of Appeal.
+The appellant also argues, however, that the refusal to admit a critical item of evidence meant that the Divisional Court did not assess that evidence for its potential to undermine the case for the respondent.
+Before considering these arguments, one must be clear about the importance of that item of evidence, a cable which, the appellant claims, was sent on 15 May 2009 by the United States Embassy in London to departments of the US Federal Government in Washington.
+That cable, it is claimed, contained a record of what was said at a meeting on 12 May 2009 between a United States political counsellor, Mr Richard Mills, and Mr Colin Roberts, Head of Overseas Territories Directorate, Commissioner for British Indian Ocean Territory (BIOT) and Ms Joanne Yeadon, Administrator of BIOT and Mr Ashley Smith, the Ministry of Defences Assistant Head of International Policy and Planning.
+As the Court of Appeal said (at para 10 of its judgment), the cable is the only near contemporaneous record of the meeting.
+It purports to have been composed three days after the meeting took place.
+If it is authentic, or, perhaps more pertinently, if there is no reason to doubt its authenticity, it is, at least potentially, a significant source of evidence about the reasons for making the MPA.
+The first paragraph of the cable stated that a senior Foreign and Commonwealth Office official (Mr Roberts) had assured his American counterparts that the establishment of the MPA would in no way impinge on the US governments use of the British Indian Ocean Territory (BIOT).
+In that context, Mr Roberts is said to have asserted that the BIOTs former inhabitants [the Chagos Islanders] would find it difficult, if not impossible, to pursue their claim for resettlement on the islands if the entire Chagos Archipelago were a marine reserve.
+It is, of course, understandable that Mr Roberts would want to make it clear that the establishment of the MPA would not affect Americas use of BIOT as a military base.
+But, whether that also required the statement that the Chagos Islanders would find it difficult to resettle if the entire Chagos Archipelago became a marine reserve is more imponderable.
+After all, many of the islands in the archipelago were not required by the US for their military activities in the area.
+The obvious question arises, therefore, why it was necessary to state that the MPA would have the effect of preventing resettlement in any of the islands.
+It has been pointed out that this issue was not raised in argument in the Supreme Court.
+That, as it seems to me, is beside the point.
+The unalterable fact is that no evidence has been produced which established that the entire archipelago was required for American military activities.
+What was at stake here was the denial of the opportunity to the Chagos Islanders to return to their ancestral homeland and whether that denial was required in order to achieve the reasonable requirements of the USA.
+That circumstance should concern this court, whether or not it was raised in argument, when we are asked to consider the impact which the introduction of the cable in evidence might have had on the outcome of the proceedings before the Divisional Court.
+There was no evidence that the continuation of military activities required the depopulation of all the islands.
+In those circumstances, the reason that the civil servants advised the minister to make a MPA was highly relevant.
+It is therefore not only legitimate for, it is required of, a court examining the reasons for making the MPA to address the question whether the minister has been properly appraised of all material factors.
+If it was wholly unnecessary to keep uninhabited the islands other than Diego Garcia, the motives of the civil servants in recommending that course were directly relevant to the question of why they had advocated the establishment of the MPA.
+Was it to frustrate any further campaign to allow the Chagos Islanders to return to their homeland? To dismiss and treat as irrelevant this consideration simply because it did not feature in the appellants argument cannot be right.
+It has been pointed out that, in the original exchange of notes between the United States and United Kingdom in 1966 it was stipulated that all of the BIOT be set aside for defence purposes and that any significant change of the BIOTs status that could impact the BIOTs strategic use would require US consent.
+But what of that? Here we are examining the motivation for the recommendation of the establishment of an MPA.
+Was it for the purpose of protecting marine life? Or was it in order to ensure that the Chagossians campaign could go no further and that the Americans desire to have all the BIOT preserved for their use (assuming that that desire had persisted since 1966) would be fulfilled? It is no answer to the charge of improper motive as to the reasons for advocating the establishment of the MPA, that this chimed with the wishes of the USA.
+At para 7 of the cable, Mr Roberts is recorded as saying that a way had to be found to get through the various Chagossian lobbies.
+He is said to have admitted that the British government was under pressure from the Chagos Islanders to permit resettlement of the outer islands.
+Further, Mr Roberts is recorded as having observed that, according to the British governments current thinking, there would be no human footprints and no Man Fridays on BIOTs uninhabited islands.
+In the words of the cable, Mr Roberts asserted that establishing a marine park would, in effect, put paid to resettlement claims of the archipelagos former residents.
+When it was suggested by the Americans present at the meeting that the advocates of Chagossian resettlement continued vigorously to press their case, Mr Roberts replied that the UKs environmental lobby was far more powerful than the Chagossians.
+Comment by the author of the cable is littered with observations about the possible resettlement of the Chagos Islands.
+Reference is made to the possible appeal by the Chagossians to the European Court of Human Rights (ECtHR) and the British governments assurance that this would be firmly resisted.
+This is the pervasive theme of the meeting.
+And the cable also stated that after the meeting had ended, Ms Yeadon urged US embassy officials to affirm that the US government required the entire BIOT for defence purposes.
+She is recorded as having said that making this point would be the best rejoinder to the Chagossians assertion that partial settlement of the outer islands would have no impact on the use of Diego Garcia.
+This is important.
+There is no evidence that America did need the entire BIOT.
+Why, if she did, did Ms Yeadon urge the US government to make this claim, if not in order to thwart the Chagos Islanders aspiration to return to at least part of their homeland?
+The final two paragraphs of the cable contain significant observations in relation to the importance placed on the possibility of resettlement.
+These are the relevant passages from those paragraphs: Regardless of the outcome of the ECtHR case, however, the Chagossians and their advocates, including the All Party Parliamentary Group on Chagos Islands (APPG), will continue to press their case in the court of public opinion.
+Their strategy is to publicise what they characterise as the plight of the so called Chagossian diaspora, thereby galvanising public opinion and, in their best case scenario, causing the government to change course and allow a right of return.
+They would point to the governments recent retreat on the issue of Gurkha veterans right to settle in the UK as a model We do not doubt the current governments resolve to prevent the resettlement of the islands former inhabitants, although as FCO Parliamentary Under Secretary Gillian Merron noted in an April parliamentary debate, FCO will continue to organise and fund visits to the territory by the Chagossians.
+We are not as sanguine as the FCOs Yeadon, however, that the Conservatives would oppose a right of return.
+Indeed, MP Keith Simpson, the Conservatives Shadow Minister, Foreign Affairs, stated in the same April parliamentary debate in which Merron spoke, that HMG should take into account what I suspect is the all party view that the rights of the Chagossian people should be recognised, and that there should at the very least be a timetable for the return of those people at least to the outer islands, if not the inner islands.
+Establishing a marine reserve might, indeed, as the FCOs Roberts stated, be the most effective long term way to prevent any of the Chagos Islanders former inhabitants or their descendants from resettling in the BIOT.
+It is plain, as I have said, that a dominant theme of the meeting was that the establishment of the MPA would prevent any resettlement of the islands.
+It certainly preoccupied the Americans and it was a recurring refrain in the assurances that Mr Roberts and Ms Yeadon are said to have given.
+Viewed in isolation, the cable certainly creates a suspicion that this was a motivating factor in the decision to declare an MPA.
+The Divisional Court concluded that the cable was not admissible in evidence.
+It nevertheless permitted Mr Pleming to cross examine Mr Roberts and Ms Yeadon about its contents on the basis that its authenticity was assumed but not established.
+The Court of Appeal considered that the cable was admissible but held that, even if it had been admitted, it would have made no difference to the conclusion of the Divisional Court that improper motive had not been established.
+The arguments about admissibility have been fully canvassed in the judgments of Lord Mance and Lord Sumption and need not be repeated here.
+I agree with Lord Mance that it has not been established that the cable remained part of the archive of the London mission and, on that account, that the status of inviolability can no longer be claimed.
+I also agree with Lord Sumption that it cannot be a violation of the US embassys archives to use in litigation a document which has entered the public domain.
+One must keep in mind that the exclusion of the cable had two distinct effects.
+First, it restricted the cross examination of Mr Roberts and Ms Yeadon.
+It was not possible to challenge them on the basis that the document was genuine and was to be taken as having recorded their statements at the meeting and, in Ms Yeadons case, subsequently.
+Being able to confront a witness with statements that she or he previously made which are inconsistent with their testimony is one of the most important forensic tools in the cross examiners armoury.
+Technically, Mr Pleming was bound by the answers given by the witnesses to questions based on the cables contents.
+This would not have been the case if the cable had been admitted in evidence.
+It has been suggested that the evidence given by Mr Roberts about the meeting on 12 May and Ms Yeadons own evidence give a picture which is generally and substantially consistent with that presented by the cable.
+Much of the evidence that they gave coincides with the contents of the cable, it is true.
+But in crucial areas it is incontestably inconsistent.
+It is not in the least surprising that much of the evidence from the civil servants and the contents of the cable were found to coincide.
+Indeed, it was part of Mr Plemings admitted strategy to point to that coincidence in order to establish the cables authenticity.
+But to imply that there were not highly significant differences, differences which, moreover, touched on the very issue at stake in this case, is unrealistic.
+Mr Roberts denied using the expression, Man Fridays.
+Ms Yeadon denied that Mr Roberts had said that establishing an MPA would in effect put paid to resettlement claims.
+This is directly contrary to the contents of the cable.
+Indeed, it is directly contrary to the evidence of Mr Roberts himself, for he is recorded as having accepted that he did say to the US officials that the establishment of an MPA would in effect put paid to the resettlement claims.
+The opportunity to exploit these differences if the cable had been admitted in evidence, as it should have been, cannot be airily dismissed.
+The entire cursus of the cross examination (and consequently the conclusions that might have been reached on the critical issue) could have been radically different.
+The second consequence of excluding the cable from evidence was that it did not rank as independent material with the potential to act as a significant counterweight to the FCO witnesses testimony.
+If the Divisional Court had admitted the cable in evidence, it would have to be pitted as an item of evidence which was in many respects directly contrary to the testimony of Mr Roberts and Ms Yeadon.
+The court would have been required to assess the veracity and reliability of their claims against the contemporaneous evidence provided by the cable.
+As it was, the Divisional Court merely theorised about whether Mr Plemings cross examination would have been more effective if the cable had been admitted in evidence.
+It did not consider the cables contents for their capacity to discredit the testimony of the two FCO witnesses.
+(ii) The curtailing of cross examination
+Dealing with the impact of the exclusion of the cable from evidence, the Court of Appeal said at para 88: [Our] outline of the cross examination of both witnesses does not capture its full flavour.
+It was extensive and searching.
+In our judgment, Mr Pleming was not disadvantaged by not being able to put questions on the basis that the cable was authentic and a true record of what was said at the meeting of 12 May 2009.
+He tested the evidence of Mr Roberts and Ms Yeadon on the basis of the cable.
+It is true that he was not able to put questions like: have you any explanation for the fact that you are recorded as having said X when you deny having said it? But it is unrealistic to suppose that, if Mr Pleming had been able to put such questions, this would have materially affected the thrust or course of the cross examination or of the answers that were given.
+The Divisional Court was right to say that the dividing line between questions which its ruling permitted and those which it did not permit was fine.
+In our judgment, the inhibition on Mr Plemings questions can have had no material effect on the course or the outcome of the cross examination.
+Mr Pleming was able to, and did in fact, explore the accuracy of the contents of the cable with both witnesses.
+In particular, he probed the purpose of the MPA and whether what was purportedly recorded in the cable as having been said had in fact been said.
+It is true that there was extensive cross examination of Mr Roberts and Ms Yeadon based on the contents of the cable.
+The difference between probing witnesses accounts and confronting them with admissible evidence which flatly contradicts their accounts should not be underestimated, however.
+As the Court of Appeal observed (in para 80 of its judgment), Mr Roberts refused to answer questions as to whether the contents of the cable were accurate.
+This was in reliance on the governments policy of neither confirm nor deny (NCND) policy.
+It appears to have been accepted without demur by the Divisional Court and the Court of Appeal that NCND justified this stance.
+For my part, I would not be disposed to accept that this policy could be resorted to in order to avoid answering a relevant question with which the court was required to deal.
+Given that the Divisional Court had decided that the authenticity of the cable should be assumed, it appears to me that Mr Roberts should have been required to answer as to whether what was recorded in the cable faithfully recorded what had taken place.
+As it happens, of course, Mr Roberts did address the question whether some parts of the cable were accurate see para 81 of the Court of Appeals judgment.
+What is clear, in my view, is that Mr Roberts could not have relied on NCND if the cable had been admitted in evidence.
+Nor could he have refused to deal with what the Court of Appeal described in para 82 of its judgment as the ultimate question: whether he had an explanation for the fact that he was recorded as having made certain statements which he denied having uttered.
+In deciding whether being required to answer such a question could have made a difference to the outcome of the Divisional Court case, one must consider the range of possible responses that might have been given. (In this context, Lord Mance has accepted for the purposes of the appeal that the appropriate question is whether the admission of the cable could have made a difference see para 23 of his judgment.
+For reasons that I will give later in this judgment, I consider that this is indubitably the correct test in this instance.)
+If one imagines that Mr Roberts answer to the ultimate question was that he had no explanation, or even, when pressed, that the cable was indeed accurate and that he recanted his initial disavowal of what he was recorded as having said, it is not difficult to conclude that this could have made a significant difference to the courts assessment of him as a reliable witness.
+The Court of Appeal did not consider the range of possible responses that Mr Roberts might have given to this question.
+In my opinion, it should have done.
+And if it had done, it could not have reached the conclusion that it did.
+(iii) The capacity of the cable to counter the FCO evidence
+The Court of Appeal dealt cryptically with the second issue, namely, the status of the cable as independent material with the potential to act as a counterweight to the FCO witnesses testimony.
+At para 89, the court said, [w]e do not accept that there is a realistic possibility that the courts assessment of the evidence of Mr Roberts and Ms Yeadon would have been affected if the cable had been formally admitted in evidence as an authentic document.
+Case law emphasises the importance of documentary evidence in assessing the credibility of oral witnesses.
+In Onassis v Vergottis [1968] 2 Lloyds Rep 403 Lord Pearce, having reviewed the various reasons that a witnesss oral testimony might not be credible, stated, all these problems compendiously are entailed when a judge assesses the credibility of a witness; they are all part of one judicial process.
+And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.
+In Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyds Rep 1, 57 Robert Goff LJ made this observation: It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence reference to the objective facts and documents, to the witnesses motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.
+That approach was approved by the Privy Council in Grace Shipping Inc v CF Sharp & Co (Malaya) Pte Ltd [1987] 1 Lloyds Rep 207 and applied in a number of subsequent cases.
+For example, in Goodman v Faber Prest Steel [2013] EWCA Civ 153, the Court of Appeal held that the trial judge had erred in accepting a personal injury claimants evidence of pain without dealing with contradictory documentary evidence and explaining why the claimants evidence was to be preferred.
+Moore Bick LJ applied the approach of Robert Goff LJ and stated that memory often plays tricks and even a confident witness who honestly believes in the accuracy of his recollection may be mistaken.
+That is why in such cases the court looks to other evidence to see to what extent it supports or undermines what the witness says and for that purpose contemporary documents often provide a valuable guide to the truth.
+He concluded that: [O]ne is left with the clear impression that [the judge] was swayed by Mr Goodmans performance in the witness box into disregarding the important documentary evidence bearing on what had become the central question in the case.
+It may have been open to her to prefer what he had said in the witness box, but if she was minded to do so it was incumbent on her to deal with the documentary evidence and explain why Mr Goodmans oral evidence was to be preferred.
+It is not to be suggested that the Divisional Court ignored or disregarded the important documentary evidence which the cable constituted.
+But if it had admitted the cable in evidence, as should have happened, the contrast between some of its contents and the evidence of Mr Roberts and Ms Yeadon would have been starker.
+The need to confront the discrepancy between the two could not have been avoided.
+Although said in relation to commercial litigation, I consider that the observations of Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), paras 15 22 have much to commend them.
+In particular, his statement at para 22 appears to me to be especially apt: the best approach for a judge to adopt is, in my view, to place little if any reliance at all on witnesses recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.
+This does not mean that oral testimony serves no useful purpose though its utility is often disproportionate to its length.
+But its value lies largely, as I see it, in the opportunity which cross examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events.
+Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.
+The intellectual exercise on which the Divisional Court was engaged in evaluating the evidence of Mr Roberts and Ms Yeadon, having refused to admit the cable in evidence, was quite different from that on which it would have had to embark if the evidence had been received.
+By refusing to admit the evidence, the court effectively had confined its role to an assessment of how well the witnesses had withstood cross examination.
+If the cable had been admitted, the discrepancies between the contents of the cable and their testimony would have had to be considered objectively, while keeping in mind all the adjurations as to the likelihood of contemporaneous documentary evidence being intrinsically more reliable.
+If the Divisional Court had admitted the cable in evidence, what were the possible consequences? If it had concluded, as well it might, that it was inherently unlikely that the cable would have recorded Mr Roberts as having said there would be no human footprints and no Man Fridays on BIOTs uninhabited islands, unless he had actually used those words, what impact would that have had on his believability? These were striking expressions.
+Indeed, Ms Yeadon said that, if they had been used, she would have been shocked.
+Could they have been fabricated by the author of the cable? Why should they have been? If the cable had been admitted and was therefore a freestanding item of evidence, it is at least possible that the Divisional Court would have decided that it was unlikely that the person who composed the cable would have fabricated those phrases and attributed them directly to Mr Roberts.
+And, if it was concluded that this was unlikely, what effect would that have on Mr Roberts credibility in light of his denial of having used them?
+When the Court of Appeal came to consider what difference the admission in evidence of the cable might have made, the question for them should have been whether a different outcome was possible, not whether that would have happened or even whether it was likely. (I will explain presently why I consider that the possibility of a different result was the correct test.) The Court of Appeal, however, seems to have considered various possible formulations at different points of its judgment.
+At para 89 it twice stated that it was unrealistic to suggest that the court would have reached a different conclusion, had the evidence been admitted.
+Later in the same paragraph the court said that it had borne in mind that a legally correct approach would have made no difference to the outcome: see, for example, R v Chief Constable of the Thames Valley Police, Ex p Cotton [1990] IRLR 344, per Bingham LJ at para 60.
+These statements suggest that the appeal court considered that, unless the admission of the cable would have made a difference, as opposed to whether it could have done so, a review of the Divisional Courts decision would not be appropriate.
+I do not consider that this is the correct test and I turn now to that issue.
+(iv) The correct test
+In Malloch v Aberdeen Corpn [1971] 1 WLR 1578, the appellant had been dismissed from his employment as a teacher by a motion passed by an education committee.
+He claimed that he had not been given a fair hearing and that, if he had been permitted to make representations, it was possible that some members of the committee would not have voted in favour of his dismissal. (The motion required to be carried by a two thirds majority).
+The House of Lords held that teachers in Scotland had in general a right to be heard before they were dismissed and, since, in view of the ambiguity of the regulations by reason of which the appellant had been dismissed, he might have had an arguable case before the committee and might have influenced sufficient members to vote against his dismissal.
+The committee was in breach of duty in denying him a hearing and the resolution and dismissal were accordingly unlawful.
+At 1582H Lord Reid dealt with an argument that affording the appellant a hearing would have made no difference.
+He said: it was argued that to have afforded a hearing to the appellant before dismissing him would have been a useless formality because whatever he might have said could have made no difference.
+If that could be clearly demonstrated it might be a good answer.
+But I need not decide that because there was here, I think, a substantial possibility that a sufficient number of the committee might have been persuaded not to vote for the appellants dismissal.
+The substantial possibility that the Divisional Court would have reached a different conclusion if Mr Roberts evidence had taken a different turn as a consequence of his having to address and answer the ultimate question cannot be dismissed, in my opinion.
+Moreover, if the court had been required to confront the obvious conflict between Mr Roberts and Ms Yeadons evidence and that contained in the cable, again there was a distinct possibility that it would have been concluded that the frustration of the campaign by the Chagossians to resettle the outlying islands was, at least, a collateral purpose in the civil servants recommendation to the minister that the MPA be established.
+Lord Mance has said that the test to be applied in deciding whether a different outcome could or would have eventuated must depend on the context, including, in particular, how well placed the court is to judge the effect of any unfairness para 23. Perhaps.
+I would observe, however, that if the court cannot with confidence judge the measure of unfairness to the affected individual, this should surely impel the adoption of the could rather than the would test.
+Unless one could be confident that unfairness would not accrue, I find it difficult to see how it could be otherwise.
+As noted at para 106 above, the Court of Appeal suggested that the proper manner of dealing with the question was to ask whether a legally correct approach would have made no difference to the outcome.
+In relation to this case, that means that one should ask the question, if the Divisional Court had admitted the cable in evidence and if it had permitted cross examination on the basis that it was in evidence, would this not have affected the outcome.
+On one view, this partakes of the application of a could test, and, in effect, this is how Lord Mance considers that the Court of Appeal dealt with the issue.
+For the reasons given earlier, I do not agree.
+Even if that had been the Court of Appeals approach, however, I could not agree with the conclusion that it reached.
+What might have happened, as opposed to what would have happened involves consideration of a different range of imponderables.
+Deciding what would have happened involves the decision maker in imposing, to some extent at least, his or her own view as to what ought to have happened.
+By contrast, deciding what might have happened requires the decision maker to envisage a range of possibilities and to decide whether any one of those might have been chosen by the original decider, if the position before him or her had been as it has now been found to obtain.
+The Court of Appeal did not review the range of possible outcomes that might have accrued if the cable had been admitted in evidence or if Mr Pleming had been permitted to press on with this cross examination to demand an explanation as to why the civil servants evidence differed from its contents.
+In my opinion, that was central to a proper examination of the issue.
+(v) The genesis and development of the MPA
+It is true, as Lord Mance points out in para 25 of his judgment, that the whole idea of an MPA and a no take zone came from Pew, an American environmental group.
+It is also true, again as stated by Lord Mance, that David Miliband, the then Secretary of State for Foreign and Commonwealth Affairs, was the relevant decision maker as to whether the MPA should be established.
+The circumstance that it was the minister, and not the civil servants who were advising him, who would ultimately decide whether the MPA would be made does not, of itself, dispose of the question whether there was a collateral motive in the advocacy of the scheme by Mr Roberts and Ms Yeadon.
+In his note of 5 May 2009 to Mr Miliband, Mr Roberts referred to the Chagos Islanders plans for resettlement.
+He was bound to do so because this was an obvious aspect to be taken into account, in the event that an MPA was declared.
+The note contains a significant passage on this question (quoted by Lord Mance at para 27): Assuming we win in Strasbourg, we should be aiming to calm down the resettlement debate.
+Creating a reserve will not achieve this, but it could create a context for a raft of measures designed to weaken the movement.
+This statement is to be contrasted with what Mr Roberts is quoted in para 7 of the cable as having said during the meeting with American officials some seven days later.
+At that meeting he is recorded as having claimed that British government thinking was that there would be no human footprints and no Man Fridays on BIOTs uninhabited islands.
+He is also recorded as having asserted that establishing a marine park would, in effect, put paid to resettlement claims of the archipelagos former residents.
+So, although he told the minister that the MPA would not calm down the resettlement debate, he was telling the Americans that the resettlement claims would be effectively extinguished.
+And, of course, in further contrast to what the minister was being led to believe would be the effect of the MPA on the Chagossians hopes of resettlement, Ms Yeadon was recorded in the cable as encouraging US embassy officials to affirm that the US government required the entire BIOT for defence purposes so as to nullify the Chagossians assertion that partial settlement of the outer islands would have no impact on the use of Diego Garcia.
+The circumstance that the decision to make the MPA rested with the minister does not immunise the process by which that decision was made from the possible taint of improper motive.
+If those who advised the minister were actuated by such a motive but tailored their advice to the minister so as to conceal it, the fact that the minister took the decision does not render the underlying collateral purpose of no consequence.
+The contrast between the advice given to the minister and the contents of the cable incidentally reinforces the need for an unrestrained cross examination of the witnesses, particularly because, as Lord Mance observed in para 40, the Divisional Court did not address the contradiction in the evidence of Mr Roberts and that of Ms Yeadon as to whether the former did in fact say that an MPA would put paid to resettlement.
+Lord Mance has suggested (in paras 41 43) that even if Mr Roberts and/or Ms Yeadon had an improper motive, there is no conceivable reason to conclude that this affected the ultimate decision maker.
+I am afraid that I cannot agree.
+True it is, as the Court of Appeal observed in para 91 of its judgment, that the decision was personal to the Foreign Secretary.
+True it may also be, as the Court of Appeal found, that the Foreign Secretary believed that the declaration of an MPA would redound to the credit of the government and, perhaps, to his own credit, although I am not at all clear as to the evidence on which the court drew to support that conclusion.
+But, if the minister had been aware that the civil servants were recommending the establishment of an MPA with the covert purpose of ensuring that the Chagos Islanders ambition to return to their homeland would never be fulfilled, can it be said that his decision would be immune from challenge? Surely not.
+It is not a question of reconfiguring the principle in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 so as to fix the Secretary of State with the knowledge, motives and considerations of civil servants.
+Rather it is whether a decision of the Secretary of State, taken in ignorance of a concealed reason for the recommendation on which he acted, can be regarded as lawful.
+In my judgment, a decision taken on a recommendation made to him without knowledge of the true reasons that it was made, cannot be upheld on the basis that it was a decision made without regard to material factors.
+On the premise that the advice to the Foreign Secretary was fashioned so as to withhold from him the true motivation for it, his decision is impeachable because he was deprived of the opportunity to consider all relevant circumstances and, on that account, it could not stand.
+Again, it is suggested that this was not argued on behalf of the appellant before this court.
+For the reasons given earlier, I do not accept that this is a basis on which the point may be ignored, if it has validity.
+Lord Mance has stated, however, that the withholding of such information, if it were deemed sufficient to undermine a ministerial decision, would lead logically to the conclusion that any irrelevant misconception possessed by any civil servant at any level in the civil service hierarchy in relation to any proposal ultimately reaching Cabinet level could undermine a Cabinet decision. para 48.
+With much regret, I must register my profound disagreement with this statement.
+In the first place, if the appellants case is made good, the purpose of Mr Roberts and Ms Yeadon was not the product of a misconception.
+It was the outworking of a strategy to promote the establishment of the MPA for an ulterior motive.
+A minister whose imprimatur was required to endorse the advice given would surely need to be aware of the true motive for recommending the course that he had been advised to follow, in order that his decision be immune from challenge.
+There is no logical connection between the withholding of vital, relevant information from a decision maker and his failure to be aware of a misconception on the part of those advising him.
+The fact that the Foreign Secretary rejected the proposal that he should consult on the proposal is nothing to the point, in my opinion.
+He decided to proceed with the MPA on the basis of advice that it would not, of itself, eliminate the chances of resettlement of the Chagos Islands.
+If, contrary to that advice, it was the view of the civil servants that the MPA would achieve precisely that aim, the minister should have been aware of it.
+Not being informed of it meant that he was not in a position to take all material considerations into account.
+I consider, therefore, that the Court of Appeal should have recognised that there was a substantial possibility that, not only would the Divisional Court 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, but that there was an equally substantial possibility that it would have concluded that the Foreign Secretarys decision could be impugned because it was taken on a misapprehension of the true facts and circumstances.
+For these reasons, I would have allowed the appeal and ordered that the matter be remitted for hearing before a Divisional Court with the direction that it be reconsidered on the basis that the cable was admissible in evidence.
+Fishing rights
+I agree with Lord Mance on the issue of fishing rights.
+LADY HALE:
+This case is of huge importance to the Chagossians in their campaign to be permitted to re settle in their islands and to fish in the waters surrounding them.
+On the substance of the appeal, I agree with Lord Kerr that we cannot be confident that the findings of the Divisional Court would have been the same had the Wikileaks cable been admitted into evidence and counsel been permitted to cross examine the FCO officials upon it.
+The crucial legal issue in the case is therefore the admissibility of the cable, which is a matter of considerable importance both nationally and internationally.
+I agree with both Lord Mance and Lord Sumption that inviolable in articles 24 and 27(2) of the Vienna Convention on Diplomatic Relations in general means, among other things, that the archives and documents (article 24) and the official correspondence (article 27(2)) of the mission cannot generally be admitted in evidence, at least in the courts of the receiving state, because to do so would interfere in the privacy of the communications of the mission, both internally and with its sending government.
+The question, therefore, is when such inviolability is lost.
+In Lord Mances view, the cable did not remain part of the archive of the London mission once it had been remitted to the State Department or some other location for information and use there (para 20).
+It is indeed very probable that the leak did not take place from the mission but from elsewhere in the United States government.
+Nevertheless, as the main purpose of the inviolability rule is to allow the mission to communicate in confidence with the sending government, documents emanating from a mission must retain their confidentiality and consequent inviolability in some circumstances.
+Lord Sumption agrees with Lord Mance but bases this on the principle of control.
+Documents, he says, are inviolable if they are under the control of the missions personnel, as opposed to other agents of the sending state (para 68).
+I can agree with this only if it is understood that control includes the restrictions placed by the sending mission (and for that matter the sending state communicating with the mission) on the further transmission and use of the document.
+It is my understanding of civil service practice in this country that the initiator of a document decides upon the appropriate level of confidentiality and marks the document accordingly.
+Other persons within government who receive the document are bound to respect that marking. (Cabinet Office, Government Security Classifications, April 2014, eg para 28.) It is reasonable to assume that other countries have similar practices in their intra governmental communications.
+It cannot be the case that a diplomatic communication loses its inviolability once it has left the mission.
+The concept of control must include the restrictions placed by the sending mission on the dissemination of the communication, subject to the directions of their superiors in the sending state.
+In both versions of the Wikileaks cable which we have one published in the Guardian and one in the Daily Telegraph it was classified Confidential by Political Counsellor Richard Mills for reasons 1.4b and d (whatever they may be).
+That indicates a rather low level of control exercised over the document, which obviously found its way into many hands before it was acquired and put into the public domain by Wikileaks.
+Whatever may be the position in relation to other documents passing between a mission and their sending department, it seems clear in this case that whatever control there had initially been exercised over this document, it was lost even before it was put into the public domain.
+I therefore agree that it was no longer inviolable and should have been admitted in evidence in this case.
+As Lord Kerr has explained, its contents were such that they could have made a difference to the result.
+I would therefore have allowed this appeal.
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+This appeal is concerned with the interpretation of a solicitors professional indemnity insurance policy (the Policy) written by AIG Europe Ltd (AIG).
+It raises a legal question of general public importance both because it concerns a term of an insurance policy, which is, or is similar to, terms in all professional indemnity insurance policies for solicitors in England and Wales, and also because it is important to the business model by which many solicitors have funded litigation since state funded legal aid for civil cases was significantly reduced.
+As described more fully below, the respondent, Impact Funding Solutions Ltd (Impact) entered into an arrangement 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 litigation, both through its failure adequately and timeously to investigate the merits of their claims and also through the misapplication of funds provided by Impact, and so breached its duty of care to them.
+Barrington thereby put itself in breach of a warranty in its contract with Impact that it would perform its professional duties towards its clients.
+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.
+In an admirable judgment dated 30 May 2013, His Honour Judge Waksman QC awarded Impact damages of 581,353.80, which represented the principal elements of the loans which 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, under the Third Parties (Rights against Insurers) Act 1930.
+In another impressive judgment dated 13 December 2013 His Honour Judge Waksman QC analysed the nature of the arrangements between Impact and Barrington and, construing the words of the Policy, held that Impacts claim against AIG for an indemnity failed.
+Impact appealed to the Court of Appeal.
+In a judgment dated 3 February 2015 the Court of Appeal, [2015] 4 All ER 319; [2016] Bus LR 91 allowed the appeal.
+The Court of Appeal, by standing back from the detail and asking itself what was the essential purpose of the exclusion clause in question, concluded that the loans which Impact gave to cover disbursements in intended litigation were inherently part of the solicitors professional practice and that the liabilities which Barrington incurred under its warranties to Impact were liabilities professionally incurred which came within the cover of the Policy.
+AIG appeals to this court.
+Impact supports the conclusion which the Court of Appeal reached.
+It refers to the wide terms of the cover (para 8 below) and submits that the subsequent exclusions (para 10 below) should be construed strictly.
+In particular, the fact that Barrington obtained a commercial benefit from its agreement with Impact did not mean that Impact was providing services to Barrington within the terms of the exclusion.
+I do not accept that this is the correct way to read the exclusion clause in this insurance contract and set out my reasons below.
+Questions of construction
+In determining the appeal, the court has, first, to construe the relevant terms of the Policy against its factual matrix and, secondly, to construe the relevant terms of the disbursements funding master agreement (DFMA) between Impact and Barrington once again against its factual matrix.
+This approach to construction is well established.
+The court looks to the meaning of the relevant words in their documentary, factual and commercial context: Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900, para 21 per Lord Clarke of Stone cum Ebony; Arnold v Britton [2015] AC 1619, para 15 per Lord Neuberger of Abbotsbury.
+As I see no ambiguity in the way that the Policy defined its cover and as the exclusion clause reflected what The Law Society of England and Wales as the regulator of the solicitors profession had authorised as a limitation of professional indemnity cover, I see no role in this case for the doctrine of interpretation contra proferentem.
+As Lindley LJ stated in Cornish v Accident Insurance Co Ltd (1889) 23 QBD 453, 456: in a case of real doubt, the policy ought to be construed most strongly against the insurers; they frame the policy and insert the exceptions.
+But this principle ought only to be applied for the purpose of removing a doubt, not for the purpose of creating a doubt, or magnifying an ambiguity, when the circumstances of the case raise no real difficulty.
+The extent of AIGs liability is a matter of contract and is ascertained by reading together the statement of cover and the exclusions in the Policy.
+An exclusion clause must be read in the context of the contract of insurance as a whole.
+It must be construed in a manner which is consistent with and not repugnant to the purpose of the insurance contract.
+There may be circumstances in which in order to achieve that end, the court may construe the exclusions in an insurance contract narrowly.
+The judgment of Carnwath LJ in Tektrol Ltd (formerly Atto Power Controls Ltd) v International Insurance Co of Hanover Ltd [2006] 1 All ER (Comm) 780, to which counsel for Impact referred, is an example of that approach.
+But the general doctrine, to which counsel also referred, that exemption clauses should be construed narrowly, has no application to the relevant exclusion in this Policy.
+An exemption clause, to which that doctrine applies, excludes or limits a legal liability which arises by operation of law, such as liability for negligence or liability in contract arising by implication of law: Photo Production Ltd v Securicor Transport Ltd [1980] AC 827, 850 per Lord Diplock.
+The relevant exclusion clause in this Policy is not of that nature.
+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.
+The insurance policy
+AIG wrote the Policy for Barrington for the period from 1 October 2009 to 30 September 2010.
+The cover was stated in broad terms.
+It provided: The Insurer will pay on behalf of any Insured all Loss resulting from any Claim for any civil liability of the Insured which arises from the performance of or failure to perform Legal Services.
+Legal Services were defined broadly to include the provision of services
+in private practice as a solicitor or Registered European Lawyer .
+On p 6 of the Policy there is a clause which sets out what is excluded from cover.
+It provides so far as relevant: This policy shall not cover Loss in connection with any Claim or any loss: arising out of, based upon, or attributable to any: (i) trading or personal debt incurred by an Insured, (ii) 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; and (iii) guarantee, indemnity or undertaking by any Insured in connection with the provision of finance, property, assistance or other benefit or advantage directly or indirectly to that Insured. (emphasis added)
+Solicitors in England and Wales were required to take out and maintain professional indemnity insurance in accordance with the Solicitors Indemnity Insurance Rules 2009 (the 2009 Rules), which were made by The Law Society in exercise of a statutory power under section 37 of the Solicitors Act 1974.
+There was thus a scheme of compulsory professional indemnity insurance which Parliament had authorised.
+The Law Society in Appendix 1 of the 2009 Rules laid down the minimum terms and conditions of professional indemnity insurance for solicitors and registered European Lawyers in England and Wales (the Minimum Terms).
+The Minimum Terms defined the scope of cover, so far as relevant, in these terms: The insurance must indemnify each Insured against civil liability to the extent that it arises from Private Legal Practice
+in connection with the Insured Firms Practice
+Clause 6 provided: trading or personal debt of any Insured; or The insurance must not exclude or limit the liability of the Insurer except to the extent that any Claim or related Defence Costs arise from the matters set out in this clause 6. 6.6 Any: (a) (b) breach by any Insured of the terms of any contract or arrangement for the supply to, or use by, any Insured of goods or services in the course of the Insured Firms Practice; or (c) guarantee, indemnity or undertaking by any particular Insured in connection with the provision of finance, property, assistance or other benefit or advantage directly or indirectly to that insured.
+The Policy provides that: In any dispute in connection with the terms, conditions, exclusion or limitations it is agreed and understood that the Minimum Terms and Conditions will take precedence over any terms, conditions, exclusions or limitations contained herein.
+But, as can be seen by comparing the texts in paras 8 and 10 above, the exclusion is substantially the same in the Policy and in the Minimum Terms and the minor differences in drafting are of no significance.
+Lord Brightman in Swain v The Law Society [1983] 1 AC 598, 618 described the context of the statutory scheme of compulsory insurance: In exercising its power under section 37 The Law Society is performing a public duty, a duty which is designed to benefit, not only solicitor principals and their staff, but also solicitors clients.
+The scheme is not only for the protection of the premium paying solicitor against the financial consequences of his own mistakes, the mistakes of his partners and the mistakes of his staff, but also, and far more importantly, to secure that the solicitor is financially able to compensate his client.
+Indeed, I think it is clear that the principal purpose of section 37 was to confer on The Law Society the power to safeguard the lay public and not professional practitioners, since the latter can look after themselves.
+Thomas J took the same view in Kumar v AGF Insurance Ltd [1999] 1 WLR 1747, 1752A C, where he said that one must approach the construction of this sort of professional indemnity policy against the regulatory background which aimed to make sure that protection was provided to the clients of solicitors.
+As a general rule, solicitors, when performing work on behalf of their clients, owe no duty of care to third parties whose interests are affected by that work: White v Jones [1995] 2 AC 207, 256C D per Lord Goff of Chieveley.
+It is, nonetheless, well known and not disputed in this case that the professional indemnity policy protected not only clients of the solicitors but also those third parties to whom solicitors have been held to owe duties of care in their performance of legal services and to whom they have incurred liability in negligence, such as those who have acted in reliance on negligent misstatements or beneficiaries disappointed as a result of negligence in the preparation or execution of a will.
+In addition, as Lord Toulson points out (para 42), solicitors professional liability may include undertakings given to third parties in the course of acting for their clients.
+A reader of the Policy ascertains the boundaries of AIGs liability by construing the broad statement of cover (para 8 above) and also the broad exclusions (para 10 above) in the context of the regulatory background.
+The exclusion in para 10 above requires the reader to look to the category of the claim and, in this case, ask whether the claim or loss arises out of, is based upon, or is attributable to a breach by Barrington of a term or terms of a contract or arrangement for the supply of services to it in the course of its provision of legal services.
+Prima facie, if Impacts cause of action was a breach of a term of a contract or arrangement by which Impact supplied such services to Barrington, the clause would exclude cover, notwithstanding that Impacts loss could be said to have arisen from Barringtons failure to perform legal services for its clients.
+Two questions therefore arise: the first is whether the contract between Impact and Barrington was of such a nature; the second is whether it is necessary to imply a restriction into the relevant exclusion clause limiting its effect in order to make it consistent with the purpose of the Policy.
+The Disbursements Funding Master Agreement
+Barrington entered into two successive DFMAs with Impact, dated 8 June 2007 and 10 March 2008.
+The relevant terms of the two agreements were in substance the same.
+Like Judge Waksman and the Court of Appeal, I refer in my discussion below to the 2008 DFMA.
+In order to understand the provisions of the DFMA it is necessary to present that contract in its commercial context.
+It formed part of a scheme by which clients who did not qualify for legal aid and who could not otherwise afford to litigate were provided with access to legal services to pursue claims without exposing them to financial risk.
+Normally a client who has not got legal aid has to pay (a) fees to the instructed solicitor for legal services, (b) that solicitors disbursements, and (c) in the event that the claim fails, the other sides recoverable legal costs.
+A significant proportion of (a) and (b) may be recovered from the other side if the claim succeeds.
+But the failure of the claim is a serious financial risk.
+Under the scheme, the instructed solicitors fees were covered by a conditional fee agreement (CFA), which was authorised initially by section 58 of the Courts and Legal Services Act 1990, by which the client paid for the lawyers work only if the case was won and the client received compensation.
+The client, by taking out a legal expenses insurance policy, obtained indemnity against the other sides legal costs, his or her own solicitors disbursements and the premium paid on the policy in the event that the claim failed.
+While the claim was being pursued, the solicitor would have to disburse funds, for example to obtain GP records and medical reports.
+Unless otherwise funded, the solicitor had either to obtain funds in advance from the client or spend his or her own funds and later obtain reimbursement from the client.
+Impact provided funding for such disbursements through the DFMA.
+Judge Waksman described how the funding scheme operated in paras 5 to 18 of his judgment dated 13 December 2013.
+I can therefore summarise the arrangements briefly.
+Claims management companies identified potential claimants.
+A company, which was associated with Impact, operated a data management and administration system called Veracity.
+Claims management companies put details of potential claims onto Veracity and solicitors, including Barrington, would access Veracity to assess particular claims and either accept or reject a claim.
+Before accepting a claim, solicitors ought to have verified the information provided through Veracity and investigated the merits of the claim so as to enable them to enter into a CFA and to enable legal expenses insurance to be obtained.
+If the solicitors provisionally accepted a claim, Veracity required them to indicate whether they required Impact to provide a loan to the client to cover disbursements and the premium on the legal expenses insurance.
+The solicitors provided the relevant details so that Veracity could calculate the amount of the loan.
+Veracity then automatically generated a draft loan agreement and sent an email to the relevant claims management company instructing them to progress the matter.
+The claims management company, as the solicitors agent, took a package of documents for the lay client to sign.
+The pack included an engagement letter, the CFA release forms, data protection documentation, the loan agreement with Impact and the proposal for the legal expenses insurance.
+Once executed, the documents would be sent to the solicitors who would forward the executed loan agreement to Impact.
+Once the solicitors confirmed that they accepted the claim, the legal expenses insurers were notified that the claim should be put on cover.
+On obtaining the insurers confirmation, the solicitors would draw down Impacts loan to pay disbursements and to pay the balance into the solicitors client account to fund future disbursements.
+The legal expenses insurance policies required (a) that the claim had to be assessed as having a reasonable prospect of success, which in one policy was stated as 55%, and (b) that there remained in force a valid CFA.
+This arrangement was reflected in the first recital of the DFMA which stated: [Impact] facilitates the presentation of PI claims to A. solicitors through its online claims introduction and tracking service, Veracity and provides funding for disbursements under Credit Agreements in respect of those PI Claims.
+In clause 2.1 Impact offered credit facilities to clients selected by Barrington in its discretion, up to a specified aggregate sum, but, being a framework agreement, did not commit Impact to advance any sums.
+If Impact advanced sums to a client, Barrington was obliged by clause 2.2 to pay an administration fee to Impact on Impacts execution of each credit agreement and also a quarterly monitoring fee.
+The Administration Fee was defined in the DFMA (clause 1) as: a fee in respect of each Credit Agreement in the sum as notified by [Impact] to the Firm from time to time and payable by the Firm, together with Value Added Tax (if applicable) by way of remuneration for the services of [Impact].
+The DFMA contained undertakings by each party about how each would behave during the currency of the agreement.
+Impact founds its claim against Barrington on clauses 6.1 and 13.1 of the DFMA.
+In clause 6.1 each party undertook that: it shall comply with all applicable laws, regulations and codes of practice from time to time in force and each party indemnifies the other against all loss, damages, claims, costs and expenses which the other party may suffer or incur as a result of any breach by it of this undertaking.
+In clause 13.1 Barrington represented and warranted to Impact that: the services provided or to be provided by the Firm to the Customer shall be provided to the Customer in accordance with their agreement with the Customer as set out in the relevant Conditional Fee Agreement.
+Judge Waksman held that Barrington, by failing to give advice and properly to assess the merits of the compensation claims, breached those provisions of the DFMA.
+That finding has not been challenged.
+Barrington also undertook personal liability to repay the loans which Impact made to its clients.
+In clause 7.1 Barrington undertook to pay to Impact the sums due by the client under the credit agreement out of the clients damages under the claim or (in the event of the claim failing) out of the legal expenses insurance.
+More onerously, in clause 7.2 Barrington undertook to pay to Impact all sums due by the customer under the credit agreement (ie the client) if the customer breached the credit agreement, if circumstances arose that entitled Impact to terminate the credit agreement or if the credit agreement was unenforceable as a result of an act or omission by Barrington.
+The provision of loans to Barringtons clients as envisaged by the DFMA was undoubtedly the provision of financial services to the clients.
+But were the DFMA and the resulting loans to clients also a service which Impact provided to Barrington? In my view they were, for the following four reasons.
+First, Barrington contracted as a principal with Impact and not as agent for its clients.
+A contract between two principals might have provided for a service to be given to a third party alone.
+But that is not what happened in this contract.
+This is because, secondly, Barrington clearly obtained a benefit from the funding of its disbursements.
+Solicitors are personally responsible for paying the persons whom they instruct to do work or provide services in relation to a particular case, whether or not they receive funds from their clients.
+But for that funding from Impact, Barrington would have had to obtain funds from its clients, who might not have been able to afford to pay, thus making pursuit of the claim impossible, unless Barrington itself funded the disbursements in the hope of recovering its outlays through success in the claim.
+Impacts loans were available to fund not only the disbursements but also the premiums on the legal expenses insurance, thereby enabling the litigation to be fully funded.
+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 which I have described in paras 20 22 above, by which solicitors were able to take up claims, which their clients could not otherwise fund, and earn fees and success fees if the claim succeeded.
+Fourthly, it was a service for which Barrington paid the administration fee under clause 2 of the DFMA, undertook the onerous obligation to repay Impact if a client breached the credit agreement (clause 7.2), and entered into the obligation under clause 6.1 and gave the warranty in clause 13.1, on which Impact won its claim for damages against Barrington.
+I therefore conclude that the DFMA was a contract for the supply of services to Barrington.
+Impact contracted to supply those services to Barrington in the course of Barringtons provision of legal services.
+Impacts claim against Barrington arose out of the latters breach of that contract.
+Prima facie, therefore, the exclusion which I have set out in para 10 above applies to defeat Impacts claim against AIG, unless there is a basis for implying a restriction into that exclusion.
+I turn then to that question.
+Can one imply a restriction on the exclusion?
+I see no basis for implying additional words into the exclusion in order to limit its scope.
+In Marks and Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd [2016] AC 742 this court 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 that it went without saying (paras 15 31 per Lord Neuberger).
+This court also held that the express terms of the contract must be interpreted before one can consider any question of implication (para 28).
+In my view, it cannot be said that the Policy would lack commercial or practical coherence if a term restricting the scope of the exclusion were not implied.
+I would allow the appeal.
+In the present case it is fairly said that the breach of duty in the warranty on which Impact relies is a breach of duty by Barrington to its clients.
+But Impacts claim is not a claim which is derived from the clients claims.
+Defences which Barrington might be able to plead against its clients cannot be advanced against Impact.
+For example, if a client were careless in informing Barrington of the circumstances of the injury on which his or her claim was based, and Barrington also was negligent in failing properly to investigate and prosecute the claim, which then failed, the clients claim might be met with a defence of contributory negligence.
+No such defence would arise out of those circumstances in relation to a claim by Impact against Barrington.
+Thus Impacts entitlement under the warranty would not be the same as the clients claim in all cases and might be larger in some cases.
+In short, Impacts cause of action under the DFMA is an independent cause of action.
+Excluding such a claim creates no incoherence in the Policy, as it is the combination of the opening clause and the exclusions that delimits AIGs contractual liability.
+Indeed, it would be consistent with the purpose of the Policy suggested by the context, which I discussed in paras 16 and 17 above, if such a claim were excluded from that liability.
+Conclusion
+LORD TOULSON: (with whom Lord Mance, Lord Sumption and Lord Hodge agree)
+Under the Third Parties (Rights against Insurers) Act 1930, Impact is entitled to enforce any right of indemnity which Barrington had against AIG in respect of the judgment which Impact obtained against Barrington.
+Impacts argument that Barrington was entitled to such indemnity under its professional liability policy, which AIG underwrote, is founded on two propositions.
+First, it is argued that the clause relied on by AIG to deny liability is an exclusion clause, which must be narrowly construed in accordance with ordinary principles of contract law.
+Secondly, it is argued that the exclusion is well capable of being interpreted in a way which does not exclude cover under the policy.
+Both points are important.
+The first raises a point of general importance about the proper approach to the interpretation of a professional liability policy which is of a familiar kind.
+The second is important because the particular clause is a standard form of wording in solicitors professional liability policies.
+I take the points in turn.
+The fact that a provision in a contract is expressed as an exception does not necessarily mean that it should be approached with a pre disposition to construe it narrowly.
+Like any other provision in a contract, words of exception or exemption must be read in the context of the contract as a whole and with due regard for its purpose.
+As a matter of general principle, it is well established that that if one party, otherwise liable, wishes to exclude or limit his liability to the other party, he must do so in clear words; and that the contract should be given the meaning it would convey to a reasonable person having all the background knowledge which is reasonably available to the person or class of persons to whom the document is addressed. (See, among many authorities, Dairy Containers Ltd v Tasman Orient Line CV [2005] 1 WLR 215, para 12, per Lord Bingham.) This applies not only where the words of exception remove a remedy for breach, but where they seek to prevent a liability from arising by removing, through a subsidiary provision, part of the benefit which it appears to have been the purpose of the contract to provide.
+The vice of a clause of that kind is that it can have a propensity to mislead, unless its language is sufficiently plain.
+All that said, words of exception may be simply a way of delineating the scope of the primary obligation.
+The Law Commission and the Scottish Law Commission gave a homely illustration in their joint report on Exemption Clauses, 1975, Law Com No 69, para 143: If a decorator agrees to paint the outside woodwork of a house except the garage doors, no one can seriously regard the words of exception as anything but a convenient way of defining the obligation; it would surely make no difference if the promise were to paint the outside woodwork with a clear proviso that the contractor was not obliged to paint the garage doors, or if there were a definition clause brought to the promisees attention saying that outside woodwork did not include the garage doors.
+Such provisions do not deprive the promisee of a right of a kind which social policy requires that he should enjoy, nor do they give the promisor the advantage of appearing to promise more than he is in fact promising.
+This approach was reflected in the Law Commissions Bill which passed into law as the Unfair Contract Terms Act 1977.
+Section 3 brought under statutory control, in cases where one party deals with the other as a consumer or on the others standard terms of business, a term which excludes or restricts the others liability for breach, or a term which entitles the other to render a contractual performance substantially different from that which was reasonably expected of him.
+The Act does not apply to insurance contracts (Schedule 1, paragraph 1), but it is nonetheless instructive to note the types of exemption clause which the Law Commissions saw as potentially suspect in consumer contracts.
+In the case a non consumer contract (with which we are concerned, albeit that consumer protection was an important end purpose), Photo Production Ltd v Securicor Transport Ltd is authority that business people capable of looking after their own affairs should be free between themselves to apportion risks as they choose: [1980] AC 827, 843 (Lord Wilberforce) and 851 (Lord Diplock).
+That brings me to the contract in the present case.
+The policy schedule and the policy wording are both headed in large letters Solicitors Professional Liability.
+Lord Hodge has set out its material terms, but it is convenient to repeat the key parts.
+Under the heading Cover appear the words: The Insurer will pay on behalf of any Insured all Loss resulting from any Claim for any civil liability of the Insured which arises from the performance or failure to perform Legal Services (which are themselves broadly defined).
+Under the heading Exclusions a number of heads of claims or loss are excluded: bodily/psychological injury; directors and officers liability; employment breaches and discrimination; fines and penalties; fraud or dishonesty; partnership disputes; prior claims; property damage; trade debts; and war/terrorism.
+We are concerned with the clause 6.6, which in the minimum terms is headed Debts and Trading Liabilities.
+These are defined to include any claim or loss arising out of: breach by any Insured of the 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.
+There are two points to highlight about the nature and purpose of the policy.
+One is that the relevant terms replicate the minimum terms of the cover which Barrington was required to maintain under the Solicitors Indemnity Insurance Rules 2009.
+As the House of Lords recognised in Swain v The Law Society [1983] 1 AC 598, 610, the paramount purpose of The Law Society being given statutory power to require solicitors to maintain insurance cover against professional liability was the protection of that section of the public that makes use of the services of solicitors (Lord Diplock).
+The second, and related point, is that the policy describes itself as a professional liability policy.
+These matters are important when considering its scope.
+What sort of liabilities are commonly understood as professional liabilities of solicitors or, in Lord Diplocks language, what is the sector of the public that makes use of their services? First, and most obviously, there are the liabilities which solicitors may incur to their clients as a result of their professional retainer.
+Secondly, in connection with acting for their clients, they may give undertakings to third parties.
+As officers of the court solicitors are expected to abide by undertakings given by them professionally, and if they do not do so they may be called upon summarily to make good their defaults (John Fox v Bannister, King & Rigbeys (Note) [1988] 1 QB 925, 928, per Nicholls LJ).
+That is plainly a form of professional liability.
+Exceptionally, there are also other cases where a solicitor has been held liable to a quasi client, as in White v Jones (the disappointed beneficiary under a will) [1995] 2 AC 207.
+There is a detailed treatment of the scope of solicitors professional liability to third parties in Jackson & Powell on Professional Liability, 2011, 7th ed, paras 11 043 & ff.
+It is a developing topic and the boundaries are not entirely clear.
+In laying down the minimum terms of professional liability cover required to be maintained by solicitors, it would have been possible for the drafting committee to have attempted to structure them by defining in positive terms the scope of a solicitors professional liability for which indemnity cover was required, but it opted to delineate the liability against which solicitors should be required to maintain cover for public protection by a process of elimination, which involved combining an insuring clause far broader than any ordinary understanding of a solicitors professional liability with a list of exclusions.
+It is important to recognise that list for what it is, namely an attempt to identify the types of liability against which solicitors are not required by law to be covered by way of professional liability insurance.
+I would reject the first stage of Impacts argument about the way in which this policy and the list of exceptions are to be approached.
+It treats the minimum terms set by the Law Society as requiring, through the opening clause, a far broader scope of cover than would have been necessary for the protection of clients and third parties to whom they may undertake professional responsibilities, subject only to exceptions which (it is argued) are to be construed as narrowly as possible.
+That involves a misapprehension of the true nature and purpose of the minimum terms.
+This brings me to the second point, which is the meaning of the language of clause 6.6.
+The Court of Appeal approached the clause by saying that it was necessary to stand back from it and consider its essential purpose.
+I do not disagree, but I would make two further comments.
+First, the essential purpose of the clause has to be seen in the context of the essential purpose of the policy, as to which I have expressed my view.
+Secondly, there is substance in AIGs complaint that the court omitted to grapple with the language of the clause.
+I agree with Lord Hodge that the DFMA was a contract for the provision of services to Barrington, for the reasons given by him and by Judge Waksman QC in his impressive judgment.
+I would add that this conclusion to my mind accords well with the essential purpose of clause 6.6.
+Barrington and Impact made a commercial agreement as principals for their mutual benefit, as well as for the benefit of Barringtons clients.
+Impact was not a client or quasi client of Barrington, and the promise by Barrington which led to the judgment obtained by Impact was part of the commercial bargain struck by them.
+It did not resemble a solicitors professional undertaking as ordinarily understood, and it falls aptly within the description of a trading liability which the minimum terms were not intended to cover.
+For those reasons, as well as the reasons given by Lord Hodge with which I fully agree, I too would allow the appeal and restore the judgment of Judge Waksman QC.
+LORD CARNWATH: (dissenting)
+The issue in this appeal is a narrow issue of construction of an exclusion clause in a solicitors professional indemnity policy.
+The facts have been set out by Lord Hodge.
+As he explains, the arrangements between the funder (Impact) and the solicitors (Barrington) were governed by two Disbursement Funding Master Agreements (DFMAs).
+The DFMAs were in effect framework agreements providing the machinery for the making of loans to clients of Barrington to meet disbursements in litigation to be funded by CFAs.
+In breach of its duties to its clients, and consequently also to Impact under the DFMAs, Barrington failed to exercise proper care in selecting cases, with the result that the disbursements were irrecoverable, either from the defendants or the ATE or LEI insurers.
+Barrington is now in liquidation.
+Having obtained judgment against it for 581,353.80, Impact has brought proceedings against Barringtons insurers, AIG Europe Ltd (AIG) under the Third Parties (Rights Against Insurers) Act 1930.
+The short question is whether the DFMAs fell within the expression any contract or arrangement for the supply to, or use by, any insured of goods or services in the course of (Barringtons) Practice under the exclusion clauses in the AIG policy.
+It is common ground that Barringtons liability to repay the loans made by Impact by way of disbursements fell in principle within the general cover provided by clause 1 of that policy.
+The question is whether that liability is excluded by sub clause 6 of clause 6 of the Minimum Terms applicable to the policy: 6.
+The insurance must not exclude or limit the liability of the insurer except to the extent that any claim or related Defence Costs arise from the matters set out in this clause 6 6.6 Debts and Trading Liabilities Any trading or personal debt of any insured, or (a) (b) breach by any insured of the terms of any contract or arrangement for the supply to, or use by, any insured of goods or services in the course of the Insured Firms Practice (c) guarantee, indemnity or undertaking by any particular Insured in connection with the provision of finance, property, assistance or other benefit or advantage directly or indirectly to that Insured.
+There is a similar exclusion clause in the policy itself under the heading Trade Debts.
+Nothing turns on any difference between the two clauses.
+In the High Court, His Honour Judge Waksman QC, held that the exclusion applied.
+He accepted that Impact did not provide financial services to Barrington: A loan might properly be described as a kind of financial service.
+But it cannot be said that by the Funding Agreement Impact made, or agreed to make, loans to Barrington, for the borrowers were the lay clients even if Barrington agreed to guarantee repayment by them.
+Nor can it be said that the loan moneys were for the use of Barrington in any real sense.
+The fact that Barrington was the conduit for the moneys and distributed them for the purpose of paying disbursements and insurance premiums on behalf of the clients does not mean that the moneys were for its use in any beneficial sense. (para 49) However, he thought that the overall facility provided to the firm could properly be described as a service within the meaning of the clause: Impact was making available to Barrington a valuable facility at Barringtons option, namely claims whose disbursement element (including the all important ATE insurance) was fully funded leaving the solicitors to provide their services under the CFA.
+The fact that the funding is made by way of loans to the clients does not affect the fact that the overall facility is provided to Barrington and it is properly described as a service and one which, if used, enables it to trade by bringing in more cases. (para 54)
+Longmore LJ (with the agreement of the other members of the Court of Appeal) took a different view.
+He held that the purpose of the exclusion was more limited: To my mind the essential purpose of the exclusion is to prevent insurers from being liable for what one might call liabilities of a solicitor in respect of those aspects of his practice which affect him or her personally as opposed to liabilities arising from his professional obligations to his or her clients.
+Thus if a solicitor incurs liability to the supplier of, for example, a photocopier, insurers do not cover that liability nor would they cover obligations to a company providing cleaning services for the solicitors offices.
+If the office premises are leased by the partnership or held subject to a mortgage to a bank, the obligations under such lease or mortgage (or any guarantee of such lease or mortgage) would not be covered either.
+It is these sort of personal obligations (which may nevertheless be part of a solicitors practice as a solicitor) which are not intended to be covered.
+These obligations are to be distinguished from the obligations which are incurred in connection with the solicitors duty to his clients which are intended to be covered. (para 19) The obligations arising out of the loans made to cover disbursements in intended litigation were essentially part and parcel of the obligations assumed by a solicitor in respect of his professional duties to his client rather than obligations personal to the solicitor (para 21), and not therefore within the scope of the exclusion.
+Mr Cannon QC for AIG submits that Longmore LJ was wrong to depart from the reasoning of the trial judge.
+He asked himself the wrong question.
+The key question was whether Barrington received services under the DFMAs, not the nature of their obligations to Impact or to their clients.
+He adopted an intuitive approach to what he thought to be the purpose of the agreement, rather than interpreting and applying the words of the agreement itself.
+Mr Cannon points to the following valuable benefits, or services, received by Barrington each time a loan was made to a client: (i) payment of such part of the loan as it directed Impact to pay to third party suppliers (ie to persons who were owed money in respect of disbursements which had already been incurred) (clause 3.1); (ii) payment of the balance into Barringtons client account where it was to be used to fund disbursements (clauses 3.2 and 4.l(a)); and (iii) the ability to take on the clients case and so to earn fees.
+He emphasises that a solicitor is liable to pay disbursements whether or not he is put in funds by his client.
+Part of the service provided to Barrington was the ability to take on the case without having to fund the disbursements or take the financial risk that they would not be recovered.
+For Impact, Mr Dutton QC submits that an exclusion clause is to be construed strictly (citing Lewison Interpretation of Contracts 6th ed (2015), para 12.04, and, in relation to insurance exclusion clauses, Tektrol Ltd (formerly Atto Power Controls Ltd) v International Insurance Co of Hanover Ltd [2005] EWCA Civ 845; [2006] 1 All ER (Comm) 780).
+Longmore LJ was right to treat the exclusion as directed to liabilities arising out of contracts in respect of goods or services utilised by Barrington in the course of its practice, that is for the purpose of carrying out legal work for its client.
+Typical examples would be contracts for supply of photocopiers or office cleaning services.
+The mere fact that Barrington derived a commercial benefit from the DFMA was not enough to bring it within the exclusion.
+Of the three categories identified by Mr Cannon, the first two were funds provided to the clients not beneficially to Barrington.
+As Judge Waksman rightly held, this was not affected by the fact that Barrington was the conduit for the money (para 49).
+The third, Barringtons ability to take on the cases, was an incidental benefit of the DFMAs but not their purpose, and too general to come within the words of the exclusion.
+Discussion
+Interpretation of a contract turns on the meaning of the relevant words in their documentary, factual and commercial context (per Lord Neuberger, Arnold v Britton [2015] AC 1619, para 15).
+It is a fair criticism of Longmore LJs judgment, with respect, that having stood back from the detail of the contract (para 19) he never returned to the actual words of the exclusion clause.
+On the other hand, those words seen in context do in my view support a narrower approach than that taken by the judge.
+The clause directs attention to the purpose of the contract or arrangement: what was it for, not what were its by products or its consequences.
+Furthermore the word services does not stand alone.
+The composite phrase goods or services implies that the services will be supplied to or used in the practice in a way comparable to that in which goods are supplied or used.
+It is not enough that they are of benefit to the firm.
+That view is reinforced by the contrast with the much wider words in the following sub clause: other benefit or advantage directly or indirectly to that Insured.
+As to the three services identified by Mr Cannon, I agree with Mr Duttons response.
+The essential service provided by the DFMA, as the judge found, was the provision of loans to Barringtons clients, not to Barrington.
+No doubt, as Mr Cannon submits, it had the incidental benefits to Barrington of enabling it to take on cases and so earn fees, and of protecting it against potential default by its clients.
+To that extent perhaps it can be seen, in the judges words, as a facility for Barrington, which can loosely be described as a service.
+But that was not the essential purpose of the contract, nor was it a service comparable in any way to the supply of goods or services for use in the practice.
+There is a helpful parallel with Tektrol, relied on by Mr Dutton, in which the Court of Appeal had to interpret an exclusion clause referring to erasure loss distortion or corruption of information on computer systems caused deliberately by malicious persons.
+It was held that the words did not cover loss of a software code as a result of the theft of the only computer on which it was stored.
+Although the word loss taken on its own might have been wide enough to cover that event, the context, and the other words with which it was associated, showed that it was limited to loss due to interference by electronic means (noscitur a sociis: see paras 28 29, per Sir Martin Nourse).
+In the same way in this clause the juxtaposition of goods and services, taken with the references to supply and use in the practice, suggests something more specific than a general facility or benefit such as that identified by the judge.
+For completeness, I should mention to dismiss three points which were raised in oral argument: i) Whether the liabilities incurred by Barrington to Impact were different in kind from those incurred to the clients.
+While the two are inevitably related, they are in principle separate causes of action.
+In any event this issue throw no light on the issue in the appeal which is concerned with the purpose of the contract, rather than the characterisation of the liabilities which may arise under it. ii) The administration fee.
+Under clause 2.2, on the signing of a credit agreement with a client, Barrington was required to pay an administration fee to Impact.
+This was defined as a fee by way of remuneration for the services of (Impact) (clause 1.1).
+It was faintly suggested that this might throw some light on whether the contract was for supply of a service under the exclusion.
+This point was not raised in argument below, and the judge made no findings on it.
+We were told by Mr Dutton that the administration fee was, as appears from the context, no more than a fee connected with the particular service of drawing up of the credit agreements.
+In any event, it throws no light on the purpose of the contract as a whole, or whether the benefits enjoyed under it fell within the words of the exclusion. iii) Comparisons with the treatment of goods and services under VAT law.
+The Court of Appeal invited submissions on whether any useful guidance could be drawn from cases concerning services to third parties under VAT law, (see now in Airtours Holidays Transport Ltd v Commissioners for Her Majestys Revenue and Customs [2016] 4 WLR 87).
+That seems to me to introduce a further complication without any countervailing illumination.
+Longmore LJ was right to conclude that, given the very different legal context, no assistance could be gained from that source.
+In conclusion, in respectful disagreement with my colleagues, I would uphold
+the decision of the Court of Appeal and dismiss the appeal.
diff --git a/UK-Abs/train-data/judgement/uksc-2015-0092.txt b/UK-Abs/train-data/judgement/uksc-2015-0092.txt
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+Ben Belacum Makhlouf was born in Tunisia on 18 July 1971.
+On 4 June 1996 he married Ruth Henderson.
+She came from Northern Ireland and was a citizen of the United Kingdom.
+The marriage took place in Tunisia.
+On 13 November 1997, Mrs Makhlouf gave birth to their only child, a daughter called Sarah Jayne.
+She was born in Northern Ireland, to where Mrs Makhlouf had returned.
+Her husband joined her there on 19 November 1997, six days after the birth of their daughter.
+He has lived in Northern Ireland since then.
+He had come to the United Kingdom and to Northern Ireland in particular with leave to enter as the spouse of a person settled in the UK.
+The leave to enter was initially valid for one year but on 19 August 1999 he was given indefinite leave to remain.
+On 14 September 1999, Mrs Makhlouf informed the United Kingdom Border Agency (UKBA) that she and her husband had separated.
+She claimed that he had been violent to her.
+He disputes that claim.
+It has never been alleged that he was violent to his daughter.
+Indeed, Mr Makhlouf has said that, following the separation from his wife, he enjoyed regular weekly contact with Sarah Jayne.
+Differences arose between him and his wife concerning their daughters upbringing, he claims and as a result, Mrs Makhlouf refused to allow him to see Sarah Jayne since the beginning of 2003.
+Notwithstanding that they have not lived together since 1999, Mr and Mrs Makhlouf have never divorced.
+On 24 April 2003, while drunk, Mr Makhlouf attacked two men after an argument about a game of pitch and toss.
+He used an offensive weapon (in the form of a key ring which contained a blade).
+He claimed that he was provoked by the men, who, he said, were loyalist paramilitaries.
+He also alleged that they had victimised him because of his ethnic origin and skin colour.
+These claims are not accepted by the respondent and there is nothing in the trial judges sentencing remarks which specifically supports them.
+The judge did, however, describe the victims behaviour as shameful and the appellant as having taken the law into his own hands but it is not at all clear from the sentencing remarks that it was accepted that the appellant had been provoked because of his ethnic background.
+The appellant had been remanded in custody from the date of the offences until December 2004 when he was released on bail.
+He pleaded guilty to two offences of assault occasioning grievous bodily harm contrary to section 20 of the Offences against the Person Act 1861, having pleaded not guilty to the more serious offences under section 18 of the same statute, with which he had originally been charged.
+The pleas of guilty to the section 20 charges were made, it is claimed, at the earliest opportunity and the trial judge appears to have taken this into account when, on 18 April 2005, he imposed concurrent sentences of 39 and nine months imprisonment.
+That disposal meant that the appellant was not required to return to prison.
+In his evidence to the First tier Tribunal, during an appeal against a decision that he should be deported, the appellant said that he had formed a relationship with Charlene McManus after his release from prison and that she had given birth to their son on 12 May 2006.
+Mr Makhlouf has not been named on the childs birth certificate as his father but Ms McManus has not disputed that he is indeed the boys father.
+Unfortunately, his relationship with Ms McManus broke down shortly after the birth but Mr Makhlouf claimed that he had regular contact with his son until 2010.
+These arrangements ended, he claimed, when Ms McManus began to demand that he visit the boy at her flat and, at that time, he was unable to leave his own home because he was suffering from depression.
+In his evidence to the First tier Tribunal he said that he had been unable to work since 2006 or 2007 because of his depressive illness and had been in receipt of state benefit for this condition.
+In 2007 the appellant issued proceedings seeking contact with his daughter, Sarah Jayne.
+He was permitted indirect contact but his application for direct contact was refused.
+He appealed that decision but this appeal was dismissed by the Fermanagh Family Care Centre on 21 October 2008.
+He claimed that he had not attended the hearing of the appeal because he had gone to the wrong court.
+The First tier Tribunal was sceptical of this claim.
+It observed, If this was truly the reason why the order was made, we find it surprising that he has been unable to secure redress for the consequences of what he claims was a simple mistake.
+We are not persuaded that the order does not reflect other issues on the suitability of him having contact with Sarah Jayne at that time.
+On Mrs Makhloufs application, the court made an order under article 179(14) of the Children (Northern Ireland) Order 1995 (SI 1995/755 (NI 2)) which imposed a requirement that the appellant obtain the leave of the court before making any further applications in respect of Sarah Jayne.
+Between November 2008 and February 2010, the appellant was convicted of and sentenced for a series of offences as follows: On 3 November 2008 he was sentenced to six months imprisonment, suspended for two years, for breach of a non molestation order; On 2 March 2009 he was fined 350 for disorderly behaviour; On 22 February 2010 he was convicted of two sets of offences the first was for breach of a non molestation order on 12 October 2009 for which he was sentenced to three months imprisonment; the second set of offences related to breach of a non molestation order on 11 January 2009 for which he was sentenced to six months imprisonment, suspended for two years, assaulting a police officer and resisting a police officer on the same date for which he received equivalent concurrent sentences.
+On 14 October 2010 the respondent wrote to the appellant, informing him that she was considering his liability to deportation.
+She asked him to provide reasons that he should not be deported.
+She also asked for information about his relationships and about his children.
+The letter contained what is known as a one stop warning under section 120 of the Nationality, Immigration and Asylum Act 2002 and a questionnaire in which various inquiries were made about his circumstances, those of his children and how he came to the United Kingdom.
+The letter had been prompted by the respondents having obtained a certificate of the applicants conviction of the offences for which he had been sentenced on 18 April 2005.
+In a letter of 1 November 2010 the appellants solicitor stated that the offences arose out of an incident in which he had been provoked by loyalist paramilitaries who had targeted him because of his origins and skin colour.
+The solicitor objected to the delay in seeking his deportation on foot of these convictions.
+It was claimed that he had a settled life in Northern Ireland and wished to play a parenting role for his children and to support them in the future.
+Any decision to deport him would breach his rights under article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR), the letter suggested.
+On 4 February 2011 the respondent wrote to the appellant again.
+She asked for further information about his two children and sought certain material from his solicitor, including passport details and evidence of his residence in the UK; documentary evidence relating to custody arrangements for the children; when he had stopped living with them; and how often he had contact with them.
+The solicitor was also asked to provide letters from the mothers of the appellants children detailing any support that he provided for the children.
+Information was also sought relating to medical treatment that he was receiving.
+No reply to these requests was forthcoming and a reminder was sent on 21 March 2011, asking for a reply by 1 April 2011.
+No such reply was received and on 28 June 2011 UKBA wrote, asking for evidence of the appellants relationship with any current partner and with his children.
+On 7 July 2011 the appellants solicitor wrote to ask for more time in which to reply and this was granted in a letter from UKBA of 16 August 2011 but a response within ten days was asked for.
+In due course the appellants solicitor did indeed reply on 26 August 2011, stating that the appellant was not in contact with his children and was not in a financial position to contribute to their maintenance.
+The letter claimed that he was being denied contact with his children by their mothers and that he had given instructions to issue legal proceedings so that he could re establish contact with them.
+In the meantime, Mr Makhlouf was convicted on 15 August 2011 of offences that arose from an incident on 2 April 2011 at the public inquiry office at Enniskillen Police Office.
+These included disorderly behaviour (for which he was sentenced to five months in prison); attempted criminal damage (for which he received a concurrent sentence of five months imprisonment); and resisting a police officer for which he received an equivalent concurrent sentence.
+On 12 April 2012 UKBA asked for an update in relation to the contact proceedings that had been mooted in the letter of 26 August 2011.
+The following day his solicitor replied saying that legal aid applications had been made in order to launch these proceedings but that these had not yet been dealt with by the Legal Aid Commission.
+No applications for contact had been lodged, therefore.
+On 30 May 2012 UKBA issued a liability to deportation notice on foot of Mr Makhloufs convictions in April 2005.
+In an accompanying letter they sought evidence of what were described as applicable circumstances.
+These included details of marriages or civil partnerships; relationships that could be said to be akin to these; evidence in relation to children or other dependents; and evidence of any medical condition from which he or any dependents suffered.
+The appellant was also asked for a formal statement setting out the reasons that he should be allowed to stay in the UK, why he wished to stay here and the grounds on which he relied in support of his claim that he should be permitted to do so.
+No response to this request was received.
+The appellant gave instructions to his present solicitors to make a further application for contact with Sarah Jayne.
+The Legal Services Commission refused to grant legal aid for this and it was not pursued.
+On 5 October 2012 the respondent decided to make a deportation order.
+Notice of that decision was given to the appellant.
+It stated: On 18 April 2005 at Belfast Crown Court, you were convicted of grievous bodily harm.
+In view of this conviction, the Secretary of State deems it to be conducive to the public good to make a deportation order against you.
+The Secretary of State has therefore decided to make an order by virtue of section 3(5)(a) of the Immigration Act 1971.
+You have claimed that your deportation from the United Kingdom would be a breach of your human rights under article 8 of the Human Rights Act 1998 on the grounds that you have established a family and/or private life in the United Kingdom.
+This claim does not meet the criteria as laid out in paragraph(s) 399/399A of the immigration rules and for the reasons given in the attached reasons for decision letter your claim is hereby refused.
+The letter which accompanied the notice of decision reviewed the various circumstances which were relevant to the appellants case.
+His several convictions, not merely those in 2005, were rehearsed.
+The fact that he was no longer in contact with either of his children and had not had any connection with them for some years was alluded to.
+The sentencing remarks of the judge in April 2005 were quoted.
+It was stated that specific regard had been had to para 396 of the Immigration Rules which provides that there is a presumption that the public interest requires the deportation of a person who is liable to deportation.
+It was acknowledged, however, that there was an obligation to consider whether that presumption would be outweighed by other factors, particularly whether the decision to take deportation action would place the United Kingdom in breach of any of its obligations under [ECHR].
+The reasons for decision letter accepted that the appellants removal to Tunisia would interfere with his rights under article 8 and that it might not be in the best interests of his children.
+But it was stated that this interference was in accordance with the permissible aim of the prevention of disorder and crime and the protection of the rights and freedoms of others.
+The letter continued: In considering whether removal to Tunisia would result in a breach of your rights under article 8, the starting point for considering such a claim is the Immigration Rules.
+Paragraph 396 establishes that where a person is liable to deportation, the public interest requires it.
+Where the Secretary of State must make a deportation order in accordance with section 32 of the UK Borders Act 2007, it is also in the public interest to deport.
+The letter then dealt with the length of sentence imposed and the effect of this in applying the relevant immigration rules, in particular paras 398, 399 and 399A. Reference was made to the criteria in para 399A which must be satisfied in order for a parental relationship with a child to outweigh the public interest in deportation in line with article 8.
+These criteria were stated to reflect the duty in section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children who are in the United Kingdom as interpreted in recent case law, in particular ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166.
+There then followed a review of the para 399A criteria as they applied to the appellants children.
+It was noted that he was not in a genuine and subsisting relationship with his son, indeed that the appellant had provided no evidence of contact with the boy and that he was cared for by his mother.
+Likewise, the letter claimed, the appellant was not in a subsisting relationship with Sarah Jayne, had no current contact with her and that she was capable of being cared for by her mother.
+The appellants personal circumstances were then considered.
+It was noted that he was not in a relationship with a partner at the time; that discounting the time that he had spent in prison, he had been resident in the United Kingdom for a period of 15 years; and that he had ties to Tunisia to which he was to be deported.
+His parents lived there and that he had lived all his life in Tunisia until he came to the UK in 1997.
+It was concluded therefore that there were no exceptional circumstances which outweighed the public interest in having the appellant deported.
+The proceedings
+The appellant appealed the decision to deport him to the First tier Tribunal.
+On 5 December 2012 he made a statement setting out the circumstances on which he relied to advance his appeal.
+He explained that he had wished to make another application for contact with Sarah Jayne but had been unable to pursue this because legal aid for his application had been refused.
+He claimed that he had obtained legal aid to pursue an application for contact with his son and exhibited an application to the Family Proceedings Court.
+The appellants appeal was heard on 6 December and the decision was given on 8 January 2013.
+The tribunal concluded that the Secretary of State had properly applied the Immigration Rules.
+Indeed, no issue was taken on the application of the rules.
+The tribunal expressed some doubt as to the existence of the appellants son but concluded, in any event, that the appellant had not produced credible evidence of contact proceedings for either child or that he had any input into their lives.
+The appeal was dismissed.
+The appellant appealed to the Upper Tribunal on 1 July 2013.
+In the course of this appeal it was conceded on the appellants behalf that there were no ongoing contact proceedings in relation to either child.
+It was submitted that it was irrational for the Secretary of State to have taken into account the sentencing remarks of the trial judge because of the length of time that had elapsed between the trial and the decision to deport.
+By way of fairly radical alternative to that argument, it was also argued that the Secretary of State had referred to only some of the remarks and had not alluded to the observation of the sentencing judge that nothing would be achieved by sending the appellant back to prison.
+It was also argued that the Secretary of State had only considered the Immigration Rules and not article 8 proper (sic).
+It was accepted by the respondent before the Upper Tribunal that the First tier Tribunal had wrongly considered the appellants case as one of automatic deportation under section 32(5) of the UK Borders Act 2007 and that therefore the burden of proving that his deportation was not conducive to the public good fell on the appellant.
+But it was submitted that this should not affect the outcome of the appeal.
+The Upper Tribunal agreed.
+It also agreed with a submission that the panel had overstated the effect of the sentencing of the appellant for breach of a non molestation order.
+But it concluded that the outcome of the appeal would not have been different even if these errors had not been made.
+The decision of the Upper Tribunal was appealed to the Court of Appeal in Northern Ireland.
+On 26 November 2014 that court (Sir Declan Morgan LCJ, Coghlin LJ and Gillen LJ) dismissed the appeal.
+Morgan LCJ, delivering the judgment of the court, set out the issues raised in the appeal in para 1 of his judgment as follows: (1) Did the Secretary of State err in deciding to deport the appellant under the mandatory power conferred by section 32 of the UK Borders Act 2007 (the 2007 Act)? (2) Did the Upper Tribunal err in law in failing to find that the Secretary of State and First tier Tribunal had erred in law and in refusing to set aside the decision of the First tier Tribunal? (3) Did the Upper Tribunal err contrary to section 6 of the Human Rights Act in failing to set aside the decision to deport in the absence of any tangible evidence for any article 8(2) justification of the encroachment of the article 8 rights of the appellant's children in circumstances where the Tribunal had not been specifically asked to address this point by the parties?
+Leave to appeal on the first of these two issues had been granted by a different panel of the Court of Appeal at an earlier hearing on 31 March 2014.
+That court had decided to make no order in relation to the third issue, pending the decision on the first two.
+The appellant therefore renewed his application for leave to appeal on that point when the matter came on for hearing on the first two issues.
+On the first issue the Court of Appeal concluded that section 32 played no part in the Secretary of States decision.
+Had it done so, it would have been unnecessary to consider para 396 of the Immigration Rules and the decision letter had made it abundantly clear that this had been taken into account para 35 of the courts judgment.
+The first ground of appeal was therefore dismissed.
+On the second issue the appellant presented two arguments to the Court of Appeal.
+Firstly, it was submitted that the Secretary of State was wrong to conclude that it was conducive to the public good that the appellant should be deported because of his conviction in 2005.
+Secondly, it was argued that no proper investigation of the article 8 issues had been undertaken in particular, there had been no proper investigation of the interests of the children.
+Both arguments were rejected by the Court of Appeal.
+It considered that the factors outlined in the reasons for decision letter amply supported the conclusion of the Secretary of State that the appellants deportation was conducive to the public good.
+On the question of the delay in making the decision, the court accepted that this could be an important consideration but that two features of this case made this factor inconsequential.
+The first was that following the 2005 convictions, the appellant was engaged in a series of further criminal offences and the second was that, during the same period, contact with his son was lost and the complete lack of contact with his daughter which had predated his convictions in 2005 continued.
+On the issue of whether sufficient attention had been paid by the respondent to the interests of the appellants children, the Court of Appeal adverted to the Secretary of States reference to section 55 of the Border, Citizenship and Immigration Act 2009 and ZH (Tanzania).
+Although the reasons for decision letter had concentrated on the question whether the conditions contained in para 399A of the Immigration Rules had been fulfilled, there had been a sufficient inquiry into the welfare of the children by the Family Court.
+The court rejected the suggestion that there should have been further investigation of the impact that the deportation of the appellant might have on the lives of his children, observing that these children did not require the disruption of further investigation in circumstances where a court with appropriate jurisdiction had made important decisions in relation to their welfare.
+The Court of Appeal therefore rejected the appellants case on the second issue and refused leave to appeal on the third issue.
+The appeal before this court
+For the appellant, Ms Higgins QC submitted that the Secretary of State had not contended that the appellant posed any risk to the public.
+All the evidence suggested that he did not, she claimed.
+Relying on Keegan v Ireland (1994) 18 EHRR 342, para 48 and Pawandeep Singh v Entry Clearance Office, New Delhi [2005] QB 608, para 72, she submitted that, where the circumstances warrant it, article 8 protects a relationship that could potentially develop between parent and child.
+Exclusive concentration on the rights of the appellant was inappropriate.
+His childrens article 8 rights required to be recognised and independently investigated.
+Too often, Ms Higgins suggested, children were invisible as rights holders.
+Dealing with the circumstance that there had not been recent contact between the appellant and his children, Ms Higgins drew attention to Strasbourg jurisprudence to the effect that divorce and separation do not bring family life between the child and the absent parent to an end, even if the divorce leads to a significant period of loss of contact: Berrehab v Netherlands (1988) 11 EHRR 322.
+Where a parents contact has been denied or severely curtailed by the actions of the other, that other parent cannot rely upon reasons related to the effluxion of time to deny the parents ongoing article 8 rights: Ferrari v Romania [2015] 2 FLR 303, para 53.
+Effective respect for family life required that future family relations between parent and child are not determined by the passage of time alone: Sylvester v Austria (2003) 37 EHRR 17, para 69.
+In the domestic judicial sphere, courts, Ms Higgins argued, have been taking an increasingly firm line with parties responsible for parental alienation.
+There were two reasons for this.
+First, the growing awareness of the fundamental importance of a child having contact with both his or her parents.
+The second reason was that firmer case management was required lest the family care system itself should contribute to the failure to develop a relationship with both parents, thereby violating the childs article 8 rights: In re A (A Child) (intractable contact dispute) [2013] 3 FCR 257 and In re H B (Children) (Contact: Prohibition on Further Applications) [2015] 2 FCR 581.
+All of this contributed to the requirement to focus closely on the needs of the children, Ms Higgins said.
+These should not be assimilated with those of the parent seeking to advance his or her article 8 rights.
+Children, especially those who had dual or multi ethnic parentage, were entitled to have that ethnicity considered in any evaluation of the scope of their article 8 rights.
+In General Comment no 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (article 3 para 1) the United Nations Committee on the Rights of the Children (CRC) emphasises that the concept of the childs best interests is aimed at ensuring both the full and effective enjoyment of the rights recognised in the Convention and the holistic development of the child para 4; that the full application of the childs best interests required the development of a rights based approach para 5; and that whenever a decision was to be made that would affect a specific child, the decision making process must include an evaluation of the possible impact on the child concerned para 6.
+Paragraph 32 imposed an obligation on the legislator, the judge and the social or educational authority to make specific inquiry as to what the particular circumstances of an individual child demanded.
+Ms Higgins also drew attention to para 36 of CRC which explained how the best interests of the child were to be treated as a primary consideration.
+It provides that the words the best interests of a child shall be a primary consideration place a strong legal obligation on states.
+These words meant that states could not exercise discretion as to whether the best interests of the child were to be given a primary consideration.
+This was a positive requirement and it should be recognised, therefore, that the childs best interests could not be measured on the same level as all other considerations para 37.
+They had to be assessed and ascribed the proper weight as a primary consideration in any consideration in any action undertaken.
+The effect of all this, Ms Higgins said, was that there was a duty to investigate thoroughly the impact on the appellants children that would be occasioned by his deportation.
+The loss of a possible future relationship with their father with the consequence that this might have on their sense of cultural identity was not to be lightly dismissed.
+It required to be scrupulously assessed by obtaining social welfare reports.
+This was particularly necessary since the mother of the appellants son, on learning of his impending deportation, had intimated a change of heart about facilitating contact with him.
+Counsel contended that a sufficient article 8 inquiry had not been conducted.
+Article 8 issues had been viewed through the prism of the Immigration Rules which purported to be (but were plainly not) comprehensive of all the issues that arose on the question of the right to respect for family and private life.
+It was contended that the reality was that the best interests of the child, insofar as they were considered at all under the rules, were taken into account under the very compelling circumstances rubric in those rules see references to this passim my judgment in the associated case of Ali.
+To provide properly for the appropriate consideration of the best interests of the children, the rules would have required express provision that these interests be taken into account as a separate, stand alone factor.
+The template letter sent to the appellants solicitors demonstrated, Ms Higgins argued, that this had not taken place.
+Discussion
+Where a decision is taken about the deportation of a foreign criminal who has children residing in this country, separate consideration of their best interests is obviously required, especially if they do not converge with those of the parent to be deported.
+And I consider that Ms Higgins is right in her submission that in the case of a child with a dual ethnic background, that factor requires to be closely examined.
+She is also right in submitting that the childs interests must rank as a primary consideration see, in particular, ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166.
+The question whether sufficient consideration of the article 8 issues which arise in a particular case can take place through the application of the immigration rules has been thoroughly discussed in the associated case of Ali.
+But that is not an issue which requires to be revisited here because what is at stake is whether the Secretary of State was in fact provided with sufficient material on which to make a proper judgment on the article 8 rights of the appellant and his children.
+All the evidence on this issue leads unmistakably to the conclusion that the appellant did not enjoy any relationship with either of his children and that they had led lives which were wholly untouched by the circumstance that he was their father.
+While, of course, the possibility of such a relationship developing was a factor to be considered, in this instance, the material available to the Secretary of State could admit of no conclusion other than that it was unlikely in the extreme.
+The lately produced information that the mother of his son might re consider contact between them partakes of a last throw of a desperate dice and was not, in any event, provided to the Secretary of State before the decision was taken.
+The question of the risk of the appellants re offending was, of course, one of the factors to be considered but his criminal behaviour after the offences in 2005 did not augur well in that assessment.
+True it is that these were associated with disputes about contact with his children but, at the least, they spoke to his propensity to indulge in offending behaviour if he failed to get his way.
+I cannot accept, therefore, that the Secretary of State was obliged to make yet further inquiries in relation to the appellant and his children beyond those which had already taken place.
+As the Court of Appeal observed, these children did not require the disruption of further investigation in circumstances where a court with appropriate jurisdiction had made important decisions in relation to their welfare.
+Conclusion
+The appeal must be dismissed.
+LADY HALE:
+I agree entirely that this appeal must be dismissed for the reasons given by Lord Kerr.
+I add a few words only because the focus of the argument on behalf of the appellant was that the Secretary of State should have undertaken her own independent enquiries into the best interests of his two children before deciding to deport him.
+Ms Higgins is of course right to say that where children will be affected by a deportation or removal decision, their best interests must be treated as a primary consideration, and considered separately from those of the adults involved and from the public interest.
+This duty stems from two sources in domestic law.
+First, section 55 of the Borders, Citizenship and Immigration Act 2009 requires the Secretary of State to make arrangements for ensuring that her own functions in relation to immigration, asylum and nationality, and those of her immigration officers, are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom.
+The aim was to reflect in United Kingdom law the effect of article 3.1 of the United Nations Convention on the Rights of the Child, which requires that in all actions concerning children, including those by administrative bodies, the best interests of the child shall be a primary consideration.
+But even without section 55, there is a second source of the obligation, in section 6(1) of the Human Rights Act 1998, which requires public authorities to act compatibly with the rights contained in the European Convention on Human Rights, including the right to respect for family life contained in article 8; this has been interpreted by the European Court of Human Rights to include the duty in article 3(1) of the United Nations Convention: see Neulinger v Switzerland (2010) 54 EHRR 1087 and ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166.
+So it is quite correct to say that children must be recognised as rights holders in their own right and not just as adjuncts to other peoples rights.
+But that does not mean that their rights are inevitably a passport to another persons rights.
+The problem in this case is that it is the appellant who is treating the children as a passport to his own rights, rather than as rights holders in their own right.
+His daughter was nearly 15 when the deportation order was made (and is now nearly 19).
+Her parents separated before she was two years old.
+Her contact with him ended when she was five.
+Legal proceedings when she was ten ended in an order for indirect contact only and a further order (which is not often made) that her father should not be able to make further applications about her upbringing without the permission of the court.
+It can be assumed, therefore, that there are good reasons for not requiring the mother to allow direct contact between father and daughter.
+Without a very good reason to the contrary, the Secretary of State is entitled to treat the orders of the family courts as reflecting what is indeed in the best interests of the children concerned.
+After all, a family court deciding the future of a child has to make the welfare of the child, not only a primary consideration, but its paramount consideration.
+Family courts are supposed to know about the best interests of children and they have appropriate investigative resources to make their own independent enquiries should they need to do so.
+The idea that the Secretary of State should make her own investigation of matters which have already been investigated by the family courts is not only completely unrealistic, it is also contrary to our understanding that the uncertainty and anxiety generated by repeated investigations and disputes about their future is usually bad for children.
+Of course it is good for children, especially children of mixed ethnicity, to have a relationship with both their parents.
+But is also good for them to have peace and stability.
+If Sarah Jayne wishes to establish a closer relationship with her father, she will be able to do this for herself, and it will make little difference to their indirect contact whether he is in the United Kingdom or in Tunisia.
+Tunisia has long been a popular holiday destination for people from this country and hopefully will become so again.
+The appellants son was aged six when the deportation order was made and is now ten.
+The relationship between his parents broke down shortly after his birth.
+The appellant claims to have had regular contact with his son until 2010, when the child was four, but it stopped because his mother wanted it to take place in their home.
+We do not know whether this had anything to do with his offending behaviour around that time.
+The appellant claims that he was unable to leave his own home because of depression.
+We do not know whether this was of a nature or degree to excuse or explain his failure to visit thereafter.
+He claimed that he had brought proceedings to try and obtain contact with his son, but in 2013 the First tier Tribunal found that he had not produced credible evidence of contact proceedings relating to either child or that he had any input into their lives, and in the Upper Tribunal it was conceded that there were no current contact proceedings.
+Nothing has been produced to suggest that the appellant has been making a meaningful contribution to his sons life.
+His son also requires peace and stability.
+He too can establish a relationship with his father in future should he wish to do so.
+In my view, the Secretary of States officials deserve credit for the patience and perseverance with which they conducted their inquiries into the appellants family circumstances, to which the response was neither as speedy or as helpful as it might have been.
+There was nothing which should have prompted them to make further enquiries as to the best interests of the children.
+There is nothing at all to suggest that the best interests of these children require that their father should remain in the United Kingdom.
+Of course there will be cases where fuller inquiries are warranted or where the best interests of children do outweigh the public interest in deportation or removal.
+This is emphatically not one of them.
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+On 20 October 2010, following a trial before a judge and jury at Belfast Crown Court, Angeline Mitchell was convicted of the murder on 11 May 2009 of Anthony Robin.
+Ms Mitchell and Mr Robin had been partners and had lived together for about three years.
+They had separated some time before May 2009 but they continued occasionally to meet and spend time together.
+On 10 May 2009 they met at a Belfast hotel at about 3pm.
+They had something to eat and they drank alcohol there during the remainder of the afternoon and into the evening.
+They then went to Mr Robins flat in Fitzroy Avenue, Belfast, where they continued to drink alcohol.
+A friend of Mr Robin, Michael McGeown, and Mr McGeowns girlfriend, Jacqueline Cushnan, were also staying at the flat.
+All four watched a film on television together and then played some music.
+At about 12.15am on 11 May 2009.
+Mr Robin received a telephone call from the home of a former partner, Rosena Oliver.
+She and Mr Robin were the parents of two sons, Anthony junior and Thomas.
+The sons lived with their mother.
+After receiving the telephone call, Mr Robin went to Ms Olivers home.
+Ms Mitchell accompanied him.
+While they were there, Anthony junior was arrested by police officers.
+Apparently, this was because of a dispute that he had had with his mother.
+It was then decided that Mr Robin and Ms Mitchell should return to the flat at Fitzroy Avenue and that they should bring the younger son, Thomas, with them.
+On their return to the flat, Mr Robin and Ms Mitchell discussed Anthony juniors arrest with Mr McGeown and Ms Cushnan for a short time.
+After that Mr McGeown and Ms Cushnan went to bed.
+Ms Mitchell continued to talk to Mr Robin about his sons arrest and repeatedly told him that he should go to the police station to which Anthony junior had been taken.
+He told her to mind her own business.
+Exchanges between them became more heated.
+There is a dispute as to what happened next but it is accepted that, at some stage, Ms Mitchell obtained a knife.
+It is also accepted that she stabbed Mr Robin.
+He sustained five knife wounds, one of which caused his death.
+This was a wound to the left side of the chest which was approximately 20 centimetres deep.
+Other wounds suffered by Mr Robin were to the left side of the scalp, to the right parietal area of the scalp and to the upper thoracic region of the back.
+Mr Robins son, Thomas, claimed to have witnessed the attack on his father.
+He said that he saw Ms Mitchell going with a knife at Mr Robin and that he was crying out as she did so.
+Thomas said that his father turned away from Ms Mitchell and she continued to attack him.
+When questioned by police at the scene of the killing, Ms Mitchell claimed that there had been a fight between Mr Robin and a Swedish girl who had just left the flat.
+After speaking to others present, however, police officers arrested Ms Mitchell on suspicion of the attempted murder of Mr Robin.
+She was cautioned.
+In response she said that she had tried to help Mr Robin and now she was getting the blame.
+The trial
+During her trial, the story about the Swedish girl was not repeated.
+Ms Mitchell did not dispute that she had stabbed Mr Robin but said that she had acted in self defence.
+She also claimed that she had been provoked and that she did not have the intention to kill or cause really serious harm to Mr Robin.
+Before the trial began, the prosecution had intimated an intention to apply to the judge for permission to lead evidence of Ms Mitchells previous bad character.
+This was said to be for the purpose of showing that she had a propensity to use knives in order to threaten and attack others.
+None of the episodes to which the proposed evidence related had resulted in a conviction.
+In relation to two of the incidents, it was agreed between the prosecution and the defence that statements settled between them should be read to the jury.
+The first of these involved an incident in 2003.
+The agreed statement contained the following sentence, During the course of a dispute about mobile telephones, Angeline Mitchell chased Andrew McAuley and James People with two knives and tried to stab them.
+The second agreed statement related to an incident in December 2007 and was in these terms: On 7 December 2007 a dispute arose between Donna Clarke and Angeline Mitchell whilst both were present at flat two, 78 Fitzroy Avenue.
+During that dispute Angeline Mitchell produced a knife and was disarmed.
+Angeline Mitchell then obtained two knives and during a struggle stabbed Lorraine Gallagher in the left calf and the left thigh.
+She also stabbed Donna Clarke in the right leg.
+As well as allowing the agreed statements to be read to the jury, the trial judge permitted the prosecution to adduce evidence of five other incidents involving Ms Mitchell.
+Two of these related to attempts to attack Michael McGeown with a knife.
+Two concerned the concealment of knives to prevent possible use of them by her.
+Evidence was also given about a conversation between Ms Mitchell and Mr McGeown in which she was alleged to have told him that she was going to stab Mr Robin and that before she did so, she would stab Mr McGeown because she knew that he would try to intervene and go to Mr Robins aid.
+Despite having authorised her legal advisers to agree that the statements be read to the jury, in the course of giving evidence, Ms Mitchell did not accept that events had occurred in the way described in the statements.
+The judge dealt with this part of her evidence in the following passage from his charge to the jury: Now, when the accused was in the witness box she appeared to renege on [the statements] and didnt agree that these things had happened or had happened in that way, or that she had stabbed these people.
+And she refused to accept any fault on
+her part in connection with these
+On the question of how the jury should treat the bad character evidence, it is agreed that the judge did not direct them on whether they required to be satisfied of the truth of the evidence.
+Nor did he indicate to the jury that they had to be satisfied that the bad character evidence had established the particular propensity on the part of Ms Mitchell which the prosecution had alleged.
+It appears that counsel who appeared for the prosecution and the defence at the trial did not invite the judge to give any particular form of direction on these topics.
+Perhaps understandably, therefore, his charge contained no reference to these matters.
+This is what he said to the jury about the evidence: that [evidence] may or may not help you.
+Take it into account or leave it out of account as you consider appropriate.
+But do not make an assumption because a person behaves that way that that means that shes guilty of murder and had the necessary intent just because of those events.
+The appeal
+Some three years and three months after her trial, Ms Mitchell applied for leave to appeal against her conviction.
+An extension of time within which to appeal was granted on 6 March 2014 and subsequently Maguire J gave Ms Mitchell permission to appeal on one ground only viz that the trial judge had failed to direct the jury properly on the purpose of the bad character evidence or the standard of proof to which the jury had to be satisfied before any member of the jury could take the bad character evidence into account in any way.
+She was refused leave to appeal on other grounds.
+Ms Mitchell renewed her application for leave to appeal on those grounds but that application was refused by the Court of Appeal in Northern Ireland (Girvan, Coghlin and Gillen LJJ) on 30 April 2015.
+The grounds on which leave to appeal was refused have not featured in the appeal before this court and nothing need be said about them.
+The Court of Appeal allowed Ms Mitchells appeal on the single ground on which she had been given leave to appeal and quashed her conviction.
+Subsequently they ordered that she should face a retrial.
+This took place in April 2016.
+Ms Mitchell pleaded not guilty to murder on the ground of diminished responsibility and pleaded guilty to manslaughter.
+She was acquitted of murder and sentenced to ten years imprisonment for the manslaughter of Mr Robin.
+Gillen LJ, who delivered the judgment of the Court of Appeal, said, at para 50 of his judgment, that the correct legal position had been stated by the authors of the 2015 edition of Archbold, Criminal Pleading Procedure and Practice at para 13 68: Where non conviction evidence is being relied on to establish propensity and the evidence is disputed, the jury must be directed not to rely on it unless they are sure of its truth: R v Lafayette [2009] Crim LR 809 and R v Campbell [2009] Crim LR 822, CA.
+This passage does not distinguish between two distinct but potentially overlapping issues: the need, on the one hand, to establish to the requisite criminal standard the facts said to provide evidence of propensity and, on the other, the existence of such a propensity.
+Should the jury be directed that they have to be satisfied beyond reasonable doubt of the veracity and accuracy of the individual facts which, it is claimed, provide evidence of misconduct on the part of the defendant? Alternatively, is the real issue not this: what requires to be proved is that the defendant did have a propensity? Or must both issues be addressed?
+Subsidiary questions arise which will be discussed later in this judgment.
+These include: should a preliminary evaluation be carried out by the jury of the truth and accuracy of the matters alleged before the question of the existence of propensity is examined or is the proper approach to consider all the evidence about the various instances of misconduct before deciding whether (i) they have been individually established; and (ii) particular instances of misconduct can serve as supportive of evidence in relation to other incidents.
+The Court of Appeal in this case referred to two decisions of the English Court of Appeal which, it was suggested, supported the statement in Archbold.
+The first was R v Ngyuen [2008] EWCA Crim 585; [2008] 2 Cr App R 9.
+In that case only one incident of previous misconduct was involved, so that proof of propensity might be said to have merged with proof of the facts involved in that incident.
+The second case was R v ODowd [2009] EWCA Crim 905; [2009] 2 Cr App R 16.
+Three alleged incidents of previous misconduct were involved in ODowd.
+The Court of Appeal in that case, at para 65, paraphrased with approval a statement by Moses LJ in R v DM [2008] EWCA 1544; [2009] 1 Cr App R 10 that the jury would need to consider with as much detail and concentration all the facts in relation to the three allegations as they would in relation to the offences of which the appellant was charged.
+It concluded, at para 83, that because it had proved necessary to scrutinise the evidence concerning the three disputed allegations the trial had been unnecessarily prolonged and rendered unduly complex.
+The convictions were therefore quashed.
+This was essentially a decision prompted by the view that the trial judge should not have admitted the evidence because allowing it to be given made the jurys task too difficult.
+Beatson Js judgment certainly assumed that the jury was required to examine separately the question whether facts relevant to each incident of misconduct had been established But to say that the jury must examine the evidence of each previous incident relied upon does not answer the question asked in this case, namely whether it must consider in independent compartments whether each such incident has been proved to the criminal standard, or whether it is enough that, having examined all the evidence, it is satisfied that a propensity to behave as charged has been established.
+Both Ngyuen and ODowd will be considered in greater detail below.
+It is sufficient to say at this stage that the Court of Appeals endorsement of them in this case would appear to indicate their approval of an approach which involves the individual consideration of the facts of each specific instance of misconduct said to establish a propensity on the part of the defendant.
+The correctness of that approach will also be considered.
+The Court of Appeal was asked by the Crown to give permission to appeal to this court and to certify a question for this courts opinion.
+Permission to appeal was refused but the following question was certified: Is it necessary for the prosecution relying on non conviction bad character evidence on the issue of propensity to prove the allegations beyond a reasonable doubt before the jury can take them into account in determining whether the defendant is guilty or not? The way in which this question is framed reinforces the impression that the Court of Appeal considered that the facts of each incident said to establish propensity had to be proved to the criminal standard before the jury could have regard to it.
+The hearing in this court
+Mr McCollum QC, who appeared for the prosecution (the appellant before us), submitted that evidence in relation to propensity did not call for any special examination by the jury.
+In particular, it should not be placed in a special compartment requiring consideration in isolation from other evidence in the case.
+It was in the nature of this form of trial that all relevant evidence should be assessed by the jury so as to allow them to determine whether they had been brought to the point of conviction of the defendants guilt.
+It was inimical to that fundamental aspect of jury trial that a particular issue be segregated from the generality of the evidence and a pre emptive decision be made in relation to that issue, before the question of the guilt or innocence of the accused was tackled.
+Dealing with all the evidence together was, Mr McCollum said, not only the principled way to proceed, it was necessary in order to avoid the unsatisfactory situation encountered in the ODowd case where a number of incidents required the jury to conduct what was in effect a series of individual trials.
+Moreover, there was nothing in the legislation authorising the admission of bad character evidence (in this case the Criminal Justice (Evidence) (Northern Ireland) Order 2004 (SI 2004/1501)) which expressly or by necessary implication required the incidents which are said to have constituted evidence of propensity to be proved beyond reasonable doubt.
+For Ms Mitchell (the respondent in this court) Mr ODonoghue QC claimed that before the enactment of the 2004 Order the common law rule was that where evidence of bad character was disputed, it had to be proved beyond a reasonable doubt before it could be taken into account by a court or jury.
+That rule was not abolished by the 2004 Order, he suggested; to the contrary, the Order clearly contemplated that it was the function of the jury to evaluate the evidence of bad character in a conventional way.
+Facts supporting the claim that the defendant had a particular propensity had to be proved beyond reasonable doubt.
+It was inconceivable, Mr ODonoghue argued, that a jury could entertain a reasonable doubt as to the accuracy or veracity of the evidence said to underpin such a propensity and, nevertheless, accept that evidence as sufficient to establish its presence.
+The law before the 2004 Order
+At common law, as a general rule, evidence of the bad character of an accused person was not admissible in a criminal trial.
+There were exceptions to this.
+One of these was similar fact evidence.
+An early and notable example of the admission of this type of evidence was the case of Makin v Attorney General for New South Wales [1894] AC 57.
+In that case, the Lord Chancellor, Lord Herschell, while acknowledging the general rule that the prosecution may not adduce evidence that tended to show that an accused person was guilty of criminal acts other than those with which he had been charged, stated that, in appropriate circumstances it was legitimate to allow evidence to be admitted which was relevant to an issue in the case.
+Thus, in Makin where the accused had been charged with the murder of an infant who had been given into their care by the childs mother after payment of a fee, evidence that several other infants had been received by the accused persons from other mothers and that their bodies were found buried in gardens of houses occupied by the prisoners, was admissible.
+Makin, together with the later cases of R v Kilbourne [1973] AC 729, R v Boardman [1975] AC 421 and Director of Public Prosecutions v P [1991] 2 AC 447, established the common law rule that, in order to be admissible, similar fact evidence had to go beyond simply demonstrating a criminal tendency (or propensity).
+It had to show sufficient pattern of behaviour, underlying unity or nexus to exclude coincidence and thus have probative force in proving the indicted allegation.
+In Scotland the same distinction was long recognised: see Moorov v HM Advocate 1930 JC 68.
+Clearly, the evidence in Makin was relevant in that, if accepted, it had, at least, the potential to show that the defendants were more likely to have killed the child.
+The decision in that case does not address the issue which is central to this appeal, however, since the question of how evidence of similar facts, if properly admitted, should be treated, did not arise.
+The case is of interest only as part of the background to the exception to the general common law rule that evidence of antecedent misconduct is not admissible unless shown to be directly relevant to an issue in the trial.
+Since, as I shall discuss below, evidence of propensity or similar fact evidence is, essentially, extraneous to that which is directly probative of the accuseds guilt of the charges on which he stands trial, the case can be made that it should be subject to the conventional criminal standard requirement of proof beyond reasonable doubt.
+And, it may be said, this is especially so where the claims in relation to similar fact evidence or propensity are disputed.
+In R v Armstrong [1922] 2 KB 555 the accused, a solicitor, was charged with the murder of his wife by giving her arsenic.
+His defence was that he had not administered the poison, although he admitted that he had arsenic which, he said, he used as a weed killer.
+He claimed that his wife had either committed suicide or had taken the arsenic by accident.
+The prosecution was permitted to call evidence that another solicitor, a Mr Martin, had visited the accuseds home eight months after his wifes death and had suffered an episode of arsenic poisoning that evening.
+The purpose of calling evidence about the attempt to poison Mr Martin was, the prosecution said, to rebut the suggestion that Mrs Armstrong had either committed suicide or taken the arsenic by accident.
+The trial judge, Darling J. directed the jury that, unless it was proved that Armstrong had given arsenic to Martin with intent to injure him, the evidence had no bearing whatever upon this case.
+That direction was not disapproved by the Court of Appeal when it affirmed the accuseds conviction.
+It was argued on behalf of the present respondent, therefore, that this case supported the proposition that the common law rule was that the prosecution had to prove to the criminal standard the truth of all similar fact evidence irrespective of the purpose for which it was admitted.
+This claim must be viewed against the background that Armstrong involved a single instance of similar fact evidence.
+If there was doubt about the truth or accuracy of the evidence relating to the Martin episode, one can readily understand why it would have to be disregarded by the jury.
+The purpose of introducing the evidence was to show that Armstrong was prepared to use arsenic on another individual.
+If the jury was not convinced that he had administered poison to Mr Martin, self evidently, that incident could not be used as proof of a propensity on the part of Armstrong to use arsenic to poison others.
+What of the situation where there are several disparate instances of alleged antecedent conduct, said to demonstrate propensity or evidence of similar facts? Must each incident be the subject of a compartmentalised examination designed to determine whether the constituent elements of each have been established beyond reasonable doubt? Or should consideration of these various instances partake of a rounded evaluation to see whether, taken as a whole, the antecedent evidence establishes a propensity or that the alleged similar facts may properly be described as such and that they tend to support the prosecutions case that the defendant is guilty of the charges which he or she faces? It will be necessary to explore these issues later in this judgment.
+Hints of a different approach can be detected in R v Kilbourne [1973] AC 729.
+In that case the respondent was convicted of sexual offences against two groups of boys.
+The trial judge directed the jury that they would be entitled to take into account the uncorroborated evidence of the second group as supporting evidence given by the first group.
+At p 741, Lord Hailsham of St Marylebone LC said: A considerable part of the time taken up in argument was devoted to a consideration whether such evidence of similar incidents could be used against the accused to establish his guilt at all, and we examined the authorities in some depth from Makin v Attorney General for New South Wales [1894] AC 57, through Lord Sumners observations in Thompson v The King [1918] AC 221, to Harris v Director of Public Prosecutions [1952] AC 694.
+I do not myself feel that the point really arises in the present case.
+Counsel for the respondent was in the end constrained to agree that all the evidence in this case was both admissible and relevant, and that the Court of Appeal was right to draw attention [1972] 1 WLR 1365, 1370 to the striking features of the resemblance between the acts alleged to have been committed in one count and those alleged to have been committed in the others and to say that this made it more likely that John was telling the truth when he said that the appellant had behaved in the same way to him.
+In my view this was wholly correct.
+With the exception of one incident. each accusation bears a resemblance to the other and shows not merely that [Kilbourne] was a homosexual, which would not have been enough to make the evidence admissible, but that he was one whose proclivities in that regard took a particular form [1972] 1 WLR 1365, 1369.
+I also agree with the Court of Appeal in saying that the evidence of each child went to contradict any possibility of innocent association.
+As such it was admissible as part of the prosecution case, and since, by the time the judge came to sum up, innocent association was the foundation of the defence put forward by the accused, the admissibility, relevance, and, indeed cogency of the evidence was beyond question.
+The word corroboration by itself means no more than evidence tending to confirm other evidence.
+In my opinion, evidence which is (a) admissible and (b) relevant to the evidence requiring corroboration, and, if believed, confirming it in the required particulars, is capable of being corroboration of that evidence and, when believed, is in fact such corroboration.
+The primary issue in Kilbourne was, of course, whether evidence which required, as a matter of law, corroboration could be verified by other evidence which itself, again as a matter of law, had to be corroborated.
+The case is interesting in the present context, however, because of the assertion by Lord Hailsham LC that evidence which is admissible and relevant, if believed, could properly be taken into account as corroborative of the case against the accused.
+Counsel for the respondent in this appeal accepted that the use of the phrases if believed and when believed in the passage quoted did not suggest that Lord Hailsham LC was proposing that proof beyond reasonable doubt of each of the other incidents was required.
+But, nor did it mean, he suggested, that it could be left to the jury to treat the evidence, once admitted, in whatever manner they chose.
+The jury was required, he submitted, to make some evaluation of the truth of the similar fact evidence and the speech of Lord Hailsham LC was not necessarily inconsistent with that evidence having to meet a requirement of proof beyond reasonable doubt before it could play a part in their deliberations.
+Lord Hailsham LC dealt again with the issue of similar fact evidence in R v Boardman [1975] AC 421.
+He made a passing reference (at p 453) to its being a matter for the jury to decide on the degree and weight to attach to such evidence, if admitted.
+This does not provide much in the way of authoritative guidance as to the standard of proof to be applied to similar fact evidence.
+Likewise, in R v Scarrott [1978] QB 1016 Scarman LJ referred to the need for similar fact evidence to be believed and the need for the jury to accept the evidence.
+These allusions cannot begin to constitute a statement of commanding clarity as to how a jury should assess such evidence.
+Consideration of these authorities (and R v Z [2000] 2 AC 483 to which the respondent also referred) leads inevitably to the conclusion that before the enactment of the 2004 Order (and its England and Wales counterpart, the Criminal Justice Act 2003) there was no clear, definitive statement on the issue now raised as to how juries should treat evidence of similar facts or propensity.
+The 2004 Order
+Article 4(1) of the 2004 Order (mirroring section 99 of the 2003 Act) abolished the common law rules governing the admissibility in criminal proceedings of evidence of bad character.
+The Order significantly expanded the circumstances in which bad character evidence could be admitted and the rules which previously restricted admission of such evidence now have no part to play in the decision as to whether it should be received.
+Article 6(1) sets out a number of what have come to be known as gateways for the admission of evidence of a defendants bad character.
+It provides: 6(1) In criminal proceedings evidence of the defendants bad character is admissible if, but only if all parties to the proceedings agree to the it is important explanatory evidence, it is relevant to an important matter in issue (a) evidence being admissible, (b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross examination and intended to elicit it, (c) (d) between the defendant and the prosecution, (e) it has substantial probative value in relation to an important matter in issue between the defendant and a co defendant, (f) by the defendant, or (g) persons character. the defendant has made an attack on another
+it is evidence to correct a false impression given
+Article 8 deals specifically with propensity.
+It relates back to gateway (d) of article 6(1).
+Article 8(1) provides: Matter in issue between the defendant and the prosecution 8. (1) For the purposes of article 6(1)(d) the matters in issue between the defendant and the prosecution include (a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence; (b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendants case is untruthful in any respect. (2) Where paragraph (1)(a) applies, a defendants propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of an offence of the same description as the one with (a) which he is charged, or (b) which he is charged. an offence of the same category as the one with (3) Paragraph (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case. (4) For the purposes of paragraph (2) (a) two offences are of the same description as each other if the statement of the offence in a complaint or indictment would, in each case, be in the same terms; (b) two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this article by an order made by the Secretary of State. (5) A category prescribed by an order under paragraph (4)(b) must consist of offences of the same type. (6) Only prosecution evidence is admissible under article 6(1)(d).
+Thus mere propensity to commit offences of the kind charged may now be admissible.
+It may be proved by convictions for offences of the same description or category, but also by other evidence, such as that of complainants or observers, or by past admissions where there has not been a conviction.
+In this case the grounds on which the admission of evidence of the respondents bad character was sought to be introduced were stated to be that (i) it was relevant to an important matter between the defendant and the prosecution (article 6(1)(d)).
+The important matter was said to include the propensity of the respondent to use knives to wound others; (ii) it was important explanatory evidence of the character of the respondent (article 6(1)(c)); (iii) it corrected a false impression given by the respondent about herself (article 6(1)(f)); and (iv) it was admissible because the respondent had attacked the character of another person, namely, the victim, Anthony Robin.
+We have not seen the trial judges ruling on the application to admit evidence of bad character.
+The Court of Appeal dealt with the matter shortly in para 28 where Gillen LJ observed that counsel for the respondent had accepted that the prosecution was entitled to call evidence of her bad character under article 6(1)(d) and 6(1)(g).
+He also said that Mr ODonoghue had accepted that it was at least arguable that the evidence [of bad character] may have been capable of establishing that the [respondent] had a propensity to arm herself with a knife and to use the knife for the purpose of and with the intention of inflicting serious bodily harm.
+If admission had been solely under articles (c), (f) or (g), it would have been necessary to consider at the end of the evidence whether propensity had become a legitimate issue, and how the jury should be directed as to the use which could be made of it.
+But whether or not it was also admitted under article 6(1)(f), this evidence was plainly admissible under article 6(1)(d), and thus propensity to offend as charged was a relevant matter which the Crown could seek to establish.
+It was no part of the respondents case that the evidence was wrongly admitted.
+What the respondent does assert, however, is that the law before the enactment of the 2003 Act and the 2004 Order was that the prosecution was required to prove to the criminal standard the truth and accuracy of evidence said to constitute similar facts or propensity.
+For the reason given in para 31 above, I do not accept that claim.
+The respondent is unquestionably right in the submission that neither the 2003 Act nor the 2004 Order stipulates that only the common law rules as to the admissibility of bad character evidence have been abrogated.
+Common law rules as to how such evidence should be evaluated have not been affected, the respondent says.
+But, for the reasons earlier given, there are no clear rules on that question.
+The debate as to how evidence of bad character admitted under the relevant legislation should be regarded by the jury is not assisted by a consideration of the common law position.
+It is common case between the parties that the legislation concerning the admission of bad character evidence is silent on the question of whether that evidence must meet the requirement of proof beyond reasonable doubt before it can be taken into account.
+On one view, this is indicative of a legislative intention that this species of evidence should not be subject to a special regime of independent proof.
+That it should simply combine with the other evidence in the case for evaluation as to whether the guilt of the accused has been established to the requisite standard.
+The contrary view is that whether someone has a propensity to engage in activity such as that which constitutes the crime charged or whether they have been involved in acts of a similar nature stands apart from direct evidence of their actual involvement in the crime charged.
+On that account, so the argument runs, the question whether they have such a propensity or have been involved in events claimed to comprise similar facts, calls for consideration separate from the evidence which directly implicates the accused in the offence for which they are being tried.
+Propensity the correct question/what requires to be proved?
+A distinction must be recognised between, on the one hand, proof of a propensity and, on the other, the individual underlying facts said to establish that a propensity exists.
+In a case where there are several incidents which are relied on by the prosecution to show a propensity on the part of the defendant, is it necessary to prove beyond reasonable doubt that each incident happened in precisely the way that it is alleged to have occurred? Must the facts of each individual incident be considered by the jury in isolation from each other? In my view, the answer to both these questions is no.
+In the case of Ngyuen [2008] 2 Cr App R 9 the appellant had been convicted of murder.
+On 23 December 2005 in a public house in Woolwich he had struck the victim in the neck with a glass and this caused fatal injuries.
+The prosecution alleged that this had been a deliberate attack.
+The appellant claimed that he was acting in self defence.
+On 7 December 2005 he had been involved in a similar incident at a different public house which was called The Great Harry.
+On that occasion he had broken a glass and used it to cause injuries to three men.
+The Crown applied for leave to admit evidence of the incident in The Great Harry.
+In acceding to that application, the judge said that the jury will have to be sure of the facts before they can use them, applying the criminal burden and standard of proof.
+In directing the jury about the earlier incident, she said that the prosecution relied on three relevant matters that the appellant had deliberately broken a glass; that he used it with the intention of causing really serious harm; and that he had done so unlawfully.
+The judge then said, If you are not sure of any of those facts, the events in The Great Harry are irrelevant to your deliberations on the charge of murder.
+The propriety of the judges charge was confirmed by the Court of Appeal.
+It should be noted, of course, that no challenge to its wording was made by the prosecution or the defence.
+The appeal, so far as concerns the judge, was based on the claim that she had been wrong to admit the evidence of The Great Harry incident and that the direction on that incident, although fair, was too much for the jury to apply faithfully and conscientiously.
+It is significant that the only bad character evidence in Ngyuen related to a single previous incident.
+In order to be convinced that the appellant in that case was possessed of the propensity which the prosecution alleged, it is not surprising that the judge considered that it was necessary for the jury to be persuaded that The Great Harry incident had taken place as alleged.
+If the jury needed to be sure that the appellant had the alleged propensity (and I am of the view that this was certainly required, if they were to take it into account), how could they, in the circumstances of that particular case, be brought to the necessary point of conviction unless they were convinced that the incident had indeed taken place in the manner that the Crown said that it had? Otherwise, there was simply no factual basis on which to found a conclusion that a propensity existed.
+The proper issue for the jury on the question of propensity in a case such as Ngyuen and the present appeal is whether they are sure that the propensity has been proved.
+In Ngyuen the only way in which they could be sure was by being convinced that the sole incident said to show propensity had been proved to the criminal standard.
+That does not mean that in cases where there are several instances of misconduct, all tending to show a propensity, the jury has to be convinced of the truth and accuracy of all aspects of each of those.
+The jury is entitled to and should consider the evidence about propensity in the round.
+There are two interrelated reasons for this.
+First the improbability of a number of similar incidents alleged against a defendant being false is a consideration which should naturally inform a jurys deliberations on whether propensity has been proved.
+Secondly, obvious similarities in various incidents may constitute mutual corroboration of those incidents.
+Each incident may thus inform another.
+The question impelled by the Order is whether, overall, propensity has been proved.
+As I have said, the existence of a propensity must be proved to the conventional criminal standard.
+I do not accept the appellants argument that it does not call for special treatment, if by that it is meant that the existence of a propensity need not be established beyond reasonable doubt.
+This issue stands apart from the evidence which speaks directly to the defendants guilt or innocence of the offences charged.
+Evidence about a propensity or tendency to commit a specific type of crime or engage in a particular species of misconduct is not in pari materia with testimony that touches on the actual events said to constitute the particular crime involved.
+It is right, therefore, that the jury should be directed that before they take this into account, they must be convinced that propensity has been proved.
+That is not to say that the jury must be unanimous on the question of whether it exists.
+As the judge said in Ngyuen, jurors are at liberty to follow their own evidential track.
+But the jury should be directed that, if they are to take propensity into account, they should be sure that it has been proved.
+This does not require that each individual item of evidence said to show propensity must be proved beyond reasonable doubt.
+It means that all the material touching on the issue should be considered with a view to reaching a conclusion as to whether they are sure that the existence of a propensity has been established.
+In the case of R v Lafayette [2008] EWCA Crim 3238; [2009] Crim LR 809 the defendant was convicted of murder, having stabbed his victim with a knife.
+He claimed that the victim had produced the knife and that, in self defence, he had grabbed the victims hand and accidentally caused the knife to enter his body.
+Cross examination of some of the eye witnesses called by the prosecution about their criminal records led to an application by the prosecution for permission to cross examine the defendant about his own previous convictions including one in 2003 for criminal damage to a window in a flat occupied by his partner.
+The application was granted.
+The partner had made a statement to the police that during this incident he had threatened to slit her throat.
+He had not been charged with making that threat.
+He denied having made it.
+As it happened, his partner gave evidence on the defendants behalf on his trial for murder.
+She was asked about the threat alleged to have been made in 2003.
+She claimed that she was not able to remember it.
+On the appeal against his conviction for murder, counsel for Lafayette accepted that the jury would have been entitled to conclude that the partner had adopted the written statement that she had made in 2003 in which reference to the threat to kill had been made.
+The Court of Appeal said (in para 36 of its judgment) that the judge should have directed the jury that they should not rely on the allegation that he had threatened to kill his partner unless they were sure that [he] had made the threat.
+One can understand why this conclusion was reached.
+A very specific threat had been imputed to the defendant and the evidence about it was, at best, equivocal.
+The incident to which the evidence related was not similar to other instances of criminal conduct which were referred to by the Crown, in support of its claim that the defendant had a general propensity to crimes of violence.
+If the judgment of the Court of Appeal can be interpreted as suggesting that the jury should consider this item of evidence completely separately from other alleged incidents of violence in the defendants past and should leave it entirely out of account unless satisfied that all aspects of the incident were proved to the criminal standard, I would not agree with it.
+The evidence relating to the threat required to be considered by the jury along with other evidence which was called to establish propensity and a determination ought to have been made on whether all that testimony, taken in combination, proved the claimed propensity.
+Each item of evidence in relation to individual instances of alleged propensity must be examined and conclusions on the primary facts should be reached but, in its deliberations as to whether propensity has been proved, the jury should consider the evidence on the subject as a whole rather than in individual compartments.
+The practical difficulties in dealing with each avowed instance of bad character tending to show propensity or similar facts are well demonstrated in the case of ODowd [2009] 2 Cr App R 16.
+In that case the trial of a single defendant on charges relating to one victim lasted six and a half months.
+He had been convicted of falsely imprisoning, raping, sexually assaulting and poisoning a woman.
+The Court of Appeal stated that a major reason for the length of the trial was the introduction of bad character evidence.
+This concerned three allegations of rape, two of which related to events that had occurred 22 and 17 years before the indicted charges.
+The first of the allegations resulted in an acquittal, the second in a conviction and the third was stayed on the ground of abuse of process.
+Interestingly, it had originally been argued on behalf of the defendant that the trial judge was wrong to have directed the jury that the bad character allegations were capable of mutually supporting the truth of other allegations.
+Beatson J, who delivered the judgment of the court, dealt with that argument in para 6 of his judgment: The second ground upon which leave to appeal was granted concerned the judges directions as to the use the jury could make of the bad character evidence.
+This ground has two limbs.
+The first concerns the direction that the bad character allegations were capable of mutually supporting the truth of the other allegations. [Counsel] did not pursue the first limb.
+He was right not to do so.
+It was unarguable in the light of the decisions of this court in [R v Wallace [2007] 2 Cr App R 30; R v DM [2009] 1 Cr App R 10, and R v Freeman [2009] 1 WLR 2723].
+In light of what I have said at para 43 above, I obviously agree with this.
+It would be misleading and confusing for a jury to be instructed that they should ignore the significance of one incident tending to show propensity when they come to form their views about another.
+Indeed, it would be unrealistic to expect that they perform the counter intuitive intellectual exercise of segregating various incidents for separate consideration without considering the possible impact of one on the other.
+Decisions about propensity should not be the product of a review of facts about separate episodes in hermetically sealed compartments.
+In para 32 of his judgment Beatson J set out the case made by the defendant
+that the evidence of bad character should not be admitted.
+He said this: At the pre trial hearing the defence submitted that admitting evidence of the bad character allegations by the three women would make a simple case complicated and would expand it out of all proportion and would be unjust.
+It would expand the case because the appellant denied the allegations, two of which had not resulted in a conviction, and the Crown would have to prove them.
+It would be unjust to admit the allegations because the defence would be handicapped in dealing with them.
+What Beatson J characterised as the most serious difficulty in acceding to the Crowns application to have the bad character evidence admitted was described in para 55 of his judgment.
+He said that proof of the alleged misconduct would require the trial of three collateral or satellite issues as part of the trial .
+This perceived difficulty led to the Court of Appeals conclusion (at para 65) that a trial of those collateral issues was required.
+It was in this context that the statement of Moses LJ in DM (referred to in para 16 above) was quoted with approval.
+Beatson J said that the jury would have to be sure those allegations were true before relying on them in relation to the index offence.
+Because, in effect, the trial was lengthened by a considerable period because of the perceived need to conduct what were in effect three mini trials, the Court of Appeal considered that the fairness of the proceedings was irredeemably compromised and the convictions were quashed.
+I can understand why the Court of Appeal reached the decision that it did.
+Three trials of the earlier incidents were in fact conducted and the appellate court had to deal with that unalterable fact.
+But I am of the clear view that it was inappropriate for the jury to be directed that it had to examine in insulated compartments the evidence in relation to each previous incident and that it had to be sure that each incident had been proved before it could take any account of it.
+It was, of course, necessary to lead evidence of the three incidents.
+The jury should have been directed to consider whether the sum of that evidence established to the criminal standard that the defendant was possessed of the propensity which was alleged.
+The evidence in relation to those incidents should have been considered cumulatively, not as separate aspects of the case for a propensity, isolated one from the other.
+ODowd nevertheless illustrates an important consideration which must be borne in mind by trial judges when determining applications to adduce evidence of propensity under articles 6(1)(d) and 8(1)(a).
+The jury is not asked to return a verdict on any previous allegations relied upon, and indeed should be reminded that the defendant is not on trial for them.
+It should be told to focus on the indicted offence(s).
+Reliance on cumulative past incidents in support of a case of propensity may indeed illuminate the truth of the currently indicted allegations, but excessive recourse to such history may skew the trial in a way which distracts attention from the central issue.
+Article 6(3) requires the judge to consider actively whether the effect of admitting the bad character evidence will have such an adverse effect on the fairness of the trial that it ought to be excluded.
+That species of adverse effect can arise through the sheer weight of disputed evidence on other uncharged allegations.
+And that can happen even though the jury will in due course be directed to consider propensity cumulatively, if the volume of evidence received is sufficiently strong to support a conviction.
+It is a truism that satellite litigation is often inimical to efficient trial.
+Conclusions
+In so far as the Court of Appeal in the present case has suggested that each incident claimed by the prosecution to show a propensity on the part of the defendant required to be proved to the criminal standard.
+I would not agree with it.
+For the reasons that I have given, the proper question to be posed is whether the jury is satisfied that a propensity has been established.
+That assessment depends on an overall consideration of the evidence available, not upon a segregated examination of each item of evidence in order to decide whether it has been proved beyond reasonable doubt.
+It is necessary to emphasise, however, that propensity is, at most, an incidental issue.
+It should be made clear to the jury that the most important evidence is that which bears directly on the guilt or innocence of the accused person.
+Propensity cannot alone establish guilt and it must not be regarded as a satisfactory substitute for direct evidence of the accuseds involvement in the crime charged.
+It is clear in the present case, however, that the trial judge failed to give adequate directions as to how the question of propensity should be approached by the jury.
+On that account the conviction was unsafe and it was properly quashed.
+The current Bench Books for Northern Ireland and England and Wales contain specimen directions which might be considered to suggest that juries require to be directed that they need to be satisfied of the truth of every allegation of propensity before they may take it into account.
+For the reasons that I have given, I consider that such a suggestion is misconceived.
+It will be for the authors of those works to reflect on whether an amendment to the relevant sections of the Bench Books is required.
diff --git a/UK-Abs/train-data/judgement/uksc-2016-0009.txt b/UK-Abs/train-data/judgement/uksc-2016-0009.txt
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+The issue surrounds out of country appeals.
+These are appeals against immigration decisions made by the Home Secretary which immigrants are entitled to bring before the First tier Tribunal (Immigration and Asylum Chamber) (the tribunal) but only if they bring them when they are outside the UK.
+Mr Kiarie, the first appellant, has Kenyan nationality.
+He is aged 23 and has lived in the UK with his parents and siblings since 1997, when he was aged three.
+In 2004 he was granted indefinite leave to remain in the UK.
+He has been convicted of serious offences in relation to drugs.
+Sent to him under cover of a notice dated 10 October 2014 was an order made by the Home Secretary for his deportation to Kenya.
+Mr Byndloss, the second appellant, has Jamaican nationality.
+He is aged 36 and has lived in the UK since the age of 21.
+In 2006 he was granted indefinite leave to remain in the UK.
+He has a wife and their four children living here; and he has three or four other children also living here.
+He has been convicted of a serious offence in relation to drugs.
+Sent to him under cover of a notice dated 6 October 2014 was an order made by the Home Secretary for his deportation to Jamaica.
+In deciding to make deportation orders against them, the Home Secretary rejected the claims of Mr Kiarie and Mr Byndloss that deportation would breach their right to respect for their private and family life under article 8 of the European Convention on Human Rights (the Convention).
+Mr Kiarie and Mr Byndloss have a right of appeal to the tribunal against her rejection of their claims and they propose to exercise it.
+But, when making the deportation orders, the Home Secretary issued certificates, the effect of which is that they can bring their appeals only after they have returned to Kenya and Jamaica.
+As I will explain in paras 33 and 55, it may well, for obvious reasons, be difficult for Mr Kiarie and Mr Byndloss to achieve success in their proposed appeals.
+But the question in these proceedings is not whether their appeals should succeed.
+It is: are the two certificates lawful?
+Yes, said the Court of Appeal (Richards LJ, who gave the substantive judgment, and Elias and McCombe LJJ, who agreed with it) on 13 October 2015, [2015] EWCA Civ 1020, [2016] 1 WLR 1961, when dismissing the applications of Mr Kiarie and Mr Byndloss for judicial review of the certificates.
+B: CERTIFICATION
+A requirement that some appeals against immigration decisions be brought out of country has been a feature of the legal system referable to immigration ever since the Immigration Act 1971 (the 1971 Act) came into force.
+An obvious example is when people abroad apply unsuccessfully to entry clearance officers in British embassies and High Commissions for entry clearance, ie permission to be admitted to the UK.
+They often have a right of appeal to the tribunal against the refusal of entry clearance and they are required to bring their appeals from abroad.
+But such appellants are already abroad; indeed their appeals are often in a narrow compass which surrounds their ability to satisfy the evidential (in particular the documentary) requirements of the Immigration Rules; their appeals do not usually include human rights claims and it is the oral evidence of their sponsors in the UK, rather than of themselves, which is often the more important.
+The situation is different when the proposed appeal is based on human rights and when the requirement to bring it from abroad is imposed on an appellant who is in the UK and who must therefore leave before he can bring it.
+The Home Secretary issued the two certificates which precipitated the present proceedings pursuant to a power conferred on her on 28 July 2014, when section 94B of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act), which had been inserted into it by section 17(3) of the Immigration Act 2014 (the 2014 Act), came into force.
+Until 30 November 2016, section 94B provided: (1) This section applies where a human rights claim has been made by a person (P) who is liable to deportation under (a) section 3(5)(a) of the Immigration Act 1971 (Secretary of State deeming deportation conducive to public good), or (b) (2) The Secretary of State may certify the claim if the Secretary of State considers that, despite the appeals process not having been begun or not having been exhausted, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of an appeal in relation to Ps claim, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention). (3) The grounds upon which the Secretary of State may certify a claim under subsection (2) include (in particular) that P would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed.
+With effect from 1 December 2016, section 94B of the 2002 Act (to which I will refer simply as section 94B) has been amended by section 63 of the Immigration Act 2016 so as to extend the Home Secretarys power to certify under the section.
+Since then she has had power to certify any human rights claim irrespective of whether the claimant is liable to deportation.
+The extended power does not fall to be considered in these appeals but our decision today will surely impact on the extent of its lawful exercise.
+C: THE STATUTORY CONTEXT OF SECTION 94B
+Section 3(5)(a) of the 1971 Act provides that a person who is not a British citizen is liable to deportation from the UK if the Home Secretary deems his deportation to be conducive to the public good.
+Section 32(4) of the UK Borders Act 2007 (the 2007 Act) provides that, for the purpose of section 3(5)(a) of the 1971 Act, the deportation of a foreign criminal is conducive to the public good.
+Section 32(1) and (2) defines a foreign criminal as a person who is not a British citizen and who is convicted in the UK of an offence for which he is sentenced to a period of imprisonment of at least 12 months.
+My future references to a foreign criminal will be to a person as thus defined.
+Section 32(5) of the 2007 Act provides that, unless an exception specified in section 33 applies and therefore, in particular, unless his removal would breach his rights under the Convention, the Home Secretary must make a deportation order in respect of a foreign criminal.
+At the material times, section 82(1) and (3A) of the 2002 Act provided that, where a deportation order in respect of a person was stated to have been made in accordance with section 32(5) of the 2007 Act, he might appeal to the tribunal.
+By section 82(4), however, the right of appeal was subject to limitations.
+One limitation, relevant to the present appeals, arose in the conjunction of section 92(1) and (4)(a) of the 2002 Act with section 94(1) and (2) of it.
+Section 92(1) provided that an appeal under section 82 could not be brought while the appellant was in the UK unless it fell within one of the exceptions specified in later subsections.
+Subsection (4)(a) specified one exception, namely where the appellant had made a human rights claim while in the UK.
+Section 94(1) and (2), however, provided that an appellant could not rely on section 92(4)(a), ie in order to be entitled to bring his appeal from within the UK, if the Home Secretary certified that his human rights claim was clearly unfounded.
+But another limitation is of even greater relevance to the present appeals.
+This was the provision which accompanied the coming into force of section 94B on 28 July 2014.
+The provision was that, where under that section the Home Secretary certified a human rights claim made by a person liable to deportation, his appeal could be brought only from outside the UK.
+In relation to the deportation orders made in relation to Mr Kiarie on 10 October 2014 and to Mr Byndloss on 6 October 2014, such was the effect of article 4 of the Immigration Act 2014 (Commencement No 1, Transitory and Saving Provisions) Order 2014 (SI 2014/1820), continued by article 15 of a third commencement order (SI 2014/2771).
+In relation to deportation orders made on or after 20 October 2014, such was the effect of section 92(3)(a) of the 2002 Act.
+There is no right of appeal to the tribunal against a certification under section 94B.
+As these proceedings show, the challenge is by way of judicial review.
+D: MR KIARIE
+In January 2014, when aged 20, Mr Kiarie received a suspended sentence of imprisonment for two years for the offence of possessing Class A drugs with intent to supply.
+In May 2014 the suspended sentence was activated following further convictions for possession of Class A and Class B drugs.
+By letter dated 22 July 2014, the Home Secretary informed Mr Kiarie, who was detained in a Young Offender Institution, that his deportation to Kenya would be conducive to the public good, that he was therefore liable to deportation and that she was required to make a deportation order against him unless one of the exceptions in section 33 of the 2007 Act applied.
+She enclosed a questionnaire and invited him to complete and return it.
+Mr Kiarie did so: he claimed that his deportation would breach his human rights because it would separate him from his family and remove him to a place where he had no family, no place of residence and no means of fending for himself.
+By the notice to Mr Kiarie dated 10 October 2014, the Home Secretary rejected his claim that deportation would breach his human rights, in particular under article 8 of the Convention.
+She said that she accepted neither that he was socially and culturally integrated into the UK nor that there would be significant obstacles to his reintegration into Kenya nor that there were any very compelling circumstances which outweighed the public interest in his deportation.
+Nevertheless she did not certify that Mr Kiaries claim was clearly unfounded; the length of his life in the UK was probably thought to preclude her doing so.
+Prior to 10 October 2014 the Home Secretary had not invited Mr Kiarie to address whether she should exercise her new power under section 94B.
+In the notice of that date, however, she said as follows: 45.
+Consideration has been given to whether your article 8 claim should be certified under section 94B The Secretary of State has considered whether there would be a real risk of serious irreversible harm if you were to be removed pending the outcome of any appeal you may bring It is acknowledged that your parents and siblings are in 46. the United Kingdom.
+However, any relationships you may have with family members can be continued through modern means of communication upon your return to Kenya.
+There is nothing to suggest that you would be unable to obtain employment in Kenya.
+You are 20 years old and have no serious medical conditions.
+Furthermore, any skills/qualifications you have gained in the United Kingdom can only serve to assist you in finding employment in Kenya.
+It is noted that English is one of the official languages of Kenya and therefore it is considered that there would be no communication barriers upon your return. 47.
+For all the above reasons, it is not accepted that you face a real risk of serious irreversible harm if removed to Kenya while you pursue your appeal against deportation, should you choose to exercise that right.
+Therefore, it has been decided to certify your article 8 claim under section 94B and any appeal you may bring can only be heard once you have left the United Kingdom.
+E: MR BYNDLOSS
+In May 2013, when aged 32, Mr Byndloss was sentenced to imprisonment for three years for the offence of possessing Class A drugs with intent to supply.
+By letter dated 21 June 2013, the Home Secretary informed Mr Byndloss, who was in prison, that he was liable to deportation and that she was required to make a deportation order against him unless one of the exceptions in section 33 of the 2007 Act applied.
+She enclosed the same questionnaire later sent to Mr Kiarie.
+Under cover of a letter to the Home Office dated 4 October 2013, solicitors for Mr Byndloss returned the questionnaire which he had partially completed.
+He said little more than that in 2004 he had married a British woman living in England, by whom he had sons then aged eight, six and two and a daughter whose age he did not identify; that, by a second partner living here, he had sons then aged three and eight months and a daughter then aged two; and that, by a third partner living here, he had a daughter whose age he did not identify.
+The solicitors also enclosed letters from Mr Byndloss and from two of the mothers of his children and other witnesses, and birth certificates relating to six of the children; and the solicitors explained that they had had only a limited opportunity to assist Mr Byndloss and that he was claiming that deportation would breach his rights under article 8 of the Convention.
+It was more than a year later, namely on 6 October 2014, that the Home Secretary sent notice of her decision to Mr Byndloss, who remained in prison and who in the interim had sent further information to her.
+By the notice, she rejected his claim that deportation would breach his rights under article 8; and she enclosed the deportation order.
+She acknowledged that he was the father of the seven children by his wife and by his second partner but did not accept that he had a genuine and subsisting relationship with any of them.
+She said that, pursuant to section 55(1) and (2) of the Borders, Citizenship and Immigration Act 2009 (the 2009 Act), she had, in making her decision, had regard to the need to safeguard and promote the welfare of the children, including also that of the eighth child in case, which had not been demonstrated, she was indeed his daughter.
+Nevertheless the Home Secretary did not certify that Mr Byndloss claim was clearly unfounded; the existence of his children in the UK was probably thought to preclude her doing so.
+One of the consequences of the long unexplained delay in the Home Secretarys determination of Mr Byndloss claim was that in the interim section 94B had come into force.
+Although she had not at any time invited him to address whether she should exercise the new power, she explained in the notice dated 6 October 2014 that she had decided to do so.
+She concluded her reference to the section as follows: Consideration has been given to whether your article 8 claim should be certified under section 94B The Secretary of State has considered whether there would be a real risk of serious irreversible harm if you were to be removed pending the outcome of any appeal you may bring.
+The Secretary of State does not consider that such a risk exists.
+Therefore, it has been decided to certify your article 8 claim under section 94B and any appeal you may bring can only be heard once you have left the United Kingdom.
+In November 2014 Mr Byndloss issued an application for judicial review of the certificate under section 94B.
+He filed witness statements which gave further details about his relationship with the eight children; but at that time he was still detained, albeit in an immigration removal centre following completion of his sentence.
+Permission to apply for judicial review was refused in the High Court but he secured permission to appeal against the refusal; and the hearing of his appeal, together with that of Mr Kiarie who had also been refused permission to apply for judicial review of the certificate referable to him, was fixed to take place in the Court of Appeal on 23 September 2015.
+Less than three weeks before that hearing, namely on 3 September 2015, the Home Secretary sent to Mr Byndloss a 21 page letter which she described as supplementary to the decision dated 6 October 2014 but which she claimed to incorporate her entire reasoning.
+In effect it replaced the earlier notice and amounted to a fresh, up to date, decision to reject Mr Byndloss claim.
+She noted that in April 2015 he had been released from immigration detention and that he had therefore been incarcerated, in all, for 705 days.
+She maintained, contrary to prison records by then already provided to her, that there was no evidence that the four children of the marriage had visited him in prison.
+Following a detailed analysis she maintained her refusal to accept that he had a genuine or subsisting relationship with any of the eight children or that he played any meaningful parental role in their lives.
+In the letter dated 3 September 2015 the Home Secretary also reiterated her decision to certify Mr Byndloss claim under section 94B.
+But she expressed her reasons for doing so differently.
+She expanded her explanation in order to address the alleged difficulties in bringing an appeal from Jamaica to which Mr Byndloss had referred in the proceedings.
+She said that if necessary he could give evidence from there by video link; that the proposed evidence about his relationship with the children could be given orally by their mothers and in a written statement by himself; and that his concern to be able to react to whatever might be said against him at the hearing could be met by his study of her skeleton argument, by which he could in advance discern what would be said.
+She referred, as before, to her duty under section 55 of the 2009 Act; but she now placed her reference to it in the specific context of her function under section 94B.
+Her central conclusion was as follows: The Secretary of State does not consider that your removal pending the outcome of any appeal would be unlawful under section 6 of the Human Rights Act 1998 and considers that there is no real risk of serious irreversible harm in your case.
+It is considered that your removal pending your appeal would be proportionate in all the circumstances.
+In the days between receipt of the letter dated 3 September 2015 and the hearing in the Court of Appeal Mr Byndloss, by his solicitors, filed a mass of evidence intended to contradict some of what the Home Secretary had said in the course of it.
+In particular he filed a lengthy report by an independent social worker to the effect that following his release Mr Byndloss had had frequent contact with all eight children; had resumed a loving and committed relationship with each of them; and had maintained a good relationship with their mothers.
+In the event the Court of Appeal resolved to treat the Home Secretarys letter dated 3 September 2015 as the decision under challenge in Mr Byndloss appeal but not to consider the evidence filed subsequently on his behalf.
+In this connection it accepted an offer by the Home Secretary that, were his appeal dismissed, she would consider the new evidence when making yet a further determination whether to certify the claim under section 94B.
+On any view, however, the courts treatment of the letter dated 3 September 2015 as the decision under challenge cut away aspects of the argument proposed to be advanced on behalf of Mr Byndloss, including in particular an argument that the certification dated 6 October 2014 had run counter to published policy which had governed the use of section 94B during the initial 11 weeks for which it had been in force.
+Following delivery of the judgments of the Court of Appeal in the present case, a different constitution of that court has delivered valuable judgments relating to the difficulty which confronts courts and tribunals when deciding how to treat supplementary decision letters sent by the Home Secretary, often shortly before a hearing: R (Caroopen) v Secretary of State for the Home Department [2016] EWCA Civ 1307.
+Mr Byndloss does not suggest, and has never suggested, that it was wrong for the Court of Appeal to treat the letter dated 3 September 2015 as the more material decision by then under challenge; but, had the guidance in the Caroopen case been available to it, the court might have been more concerned to address the disadvantage which he had suffered as a result of the Secretary of States last minute reconstitution of the issues.
+F: OBJECTIVES OF SECTION 94B
+On 30 September 2013, at the Conservative Party Conference, the Home Secretary said: Where there is no risk of serious and irreversible harm, we should deport foreign criminals first and hear their appeals later.
+An Immigration Bill was swiftly laid before Parliament and clause 12 of it provided for the insertion of section 94B into the 2002 Act.
+The Bill had not been preceded by a green paper or other form of consultation.
+An Impact Assessment of the Bill, dated 14 October 2013, described the objective of the proposed insertion as the removal of unnecessary delay in the determination of appeals.
+On 22 October 2013, in proposing the second reading of the Bill, the Home Secretary said (HC Deb, vol 569, col 161): Foreign criminals will not be able to prevent deportation simply by dragging out the appeals process, as many such appeals will be heard only once the criminal is back in their home country.
+It cannot be right that criminals who should be deported can remain here and build up a further claim to a settled life in the United Kingdom.
+On 5 November 2013, when attending on the Public Bill Committee, the Minister for Immigration said (Immigration Bill Deb 5, cols 205, 206): The new power is to help to speed up the deportation of harmful individuals, including foreign criminals many people use the appeal mechanism not because they have a case but to delay their removal from the United Kingdom.
+In some cases, they attempt to build up a human rights based claim under article 8, which they subsequently use, sometimes successfully, to prevent their departure.
+Thus the specific, linked objectives of section 94B were alleged to have been to reduce delay in the determination by the tribunal of human rights appeals and to prevent an appellants abuse of the system by seeking to strengthen his claim during the pendency of his appeal.
+But, as the Secretary of State no doubt correctly submits, there was also a more fundamental objective, arising from the very fact that the potential subjects of certification were very largely, like the two appellants, foreign criminals.
+The deportation of a foreign criminal is conducive to the public good.
+So said Parliament in enacting section 32(4) of the 2007 Act: see para 11 above.
+Parliaments unusual statement of fact was expressed to be for the purpose of section 3(5)(a) of the 1971 Act so its consequence was that every foreign criminal became automatically liable to deportation.
+Parliaments statement exemplifies the strong public interest in the deportation of foreign nationals who have committed serious offences: Ali v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799, para 14, Lord Reed.
+In the Ali case the court was required to identify the criterion by reference to which the tribunal should determine an appeal of a foreign criminal on human rights grounds against a deportation order.
+The decision was that the public interest in his deportation was of such weight that only very compelling reasons would outweigh it: see paras 37 and 38, Lord Reed.
+The Home Secretary submits that the strong public interest in the deportation of foreign criminals extends to their deportation in advance of their appeals.
+Her submission found favour in the Court of Appeal.
+In para 44 of his judgment Richards LJ observed that the very fact of Parliaments enactment of section 94B exemplified the public interest in deportation even in that situation; that therefore substantial weight must be attached to that public interest in that context too; and that, in assessing the proportionality of a certificate, the public interest is not a trump card but it is an important consideration in favour of removal.
+Notwithstanding the respect which over many years this court has developed for the opinions of Richards LJ, particularly in this field, I disagree with his observations.
+I have explained in para 31 above that one aspect of this public interest is said to be a concern that, if permitted to remain in the UK pending his appeal, a foreign criminal might seek to delay its determination in order to strengthen his personal and family connections here.
+But the tribunal will be alert not to allow objectively unwarranted delay.
+A somewhat stronger aspect of the public interest is the risk that, if permitted to remain pending his appeal, the foreign criminal would, however prejudicially to its success, take that opportunity to re offend.
+To that extent there is a public interest in his removal in advance of the appeal.
+But in my view that public interest may be outweighed by a wider public interest which runs the other way.
+I refer to the public interest that, when we are afforded a right of appeal, our appeal should be effective.
+To be set alongside Parliaments enactment of section 94B was its enactment of section 82(1) and (3A) of the 2002 Act, by which it gave a foreign criminal a right of appeal against the deportation order: see para 13 above.
+In published guidance to her case workers the Home Secretary has made clear that there is no need to consider certification of a claim under section 94B if it can be certified under section 94, as to which see para 14 above.
+So, as exemplified in the cases of Mr Kiarie and Mr Byndloss, a certificate under section 94B is of a human rights claim which is not clearly unfounded, which in other words is arguable.
+In my view therefore the public interest in a foreign criminals removal in advance of an arguable appeal is outweighed unless it can be said that, if brought from abroad, the appeal would remain effective: as to which, see section I below.
+G: ANALYSIS OF SECTION 94B
+It is clear, for example from the Home Secretarys announcement to her partys conference set out at para 31 above, that the initial conception was of a power to require a foreign criminal to bring his appeal from abroad in all cases in which his removal created no risk that he would suffer serious irreversible harm.
+The criterion of serious irreversible harm was drawn from the practice of the European Court of Human Rights (the ECtHR) when it considers whether to indicate an interim measure under rule 39 of its Rules of Court: if, for, example, an applicant who is challenging a decision to deport or extradite him would face an imminent risk of irreparable damage if removed in advance of determination of the application, the ECtHR may indicate that it should not take place: Mamatkulov v Turkey (2005) 41 EHRR 494, para 104.
+There is clearly a parallel between the power of the ECtHR under rule 39 and the Home Secretarys power of certification under section 94B; but the parallel is not exact, if only because the demands made of an appellant in adducing evidence to a UK tribunal in an appeal against a deportation order, to which I will refer in para 55 below, have no parallel in those made of an applicant in pursuing an application before the ECtHR.
+For whatever reason, Parliament wisely decided that the overarching criterion for certification under section 94B should be that removal pending appeal would not breach the claimants human rights and that the real risk of serious irreversible harm should be only an example of when such a breach would occur.
+Subsections (2) and (3) might be thought to have made this clear but unfortunately it was made far from clear to case workers.
+Guidance issued by the Home Office entitled Section 94B certification guidance for Non European Economic Area deportation cases, in both its first version dated July 2014 and its second version dated 20 October 2014, stated: Section 94B allows a human rights claim to be certified where the appeal process has not yet begun or is not yet exhausted where it is considered that the person liable to deportation would not, before the appeal process is exhausted, face a real risk of serious irreversible harm if removed to the country of return.
+So it is easy to understand why the certification of Mr Kiaries claim on 10 October 2014 and the first certification of Mr Byndloss claim on 6 October 2014 were both expressly based on a conclusion that they would not face a real risk of serious irreversible harm if removed to Kenya and Jamaica in advance of any appeal: see paras 20 and 25 above.
+In the Court of Appeal Richards LJ inevitably held that those two certifications were based on a legal misdirection.
+He proceeded to hold, however, that the misdirection in Mr Kiaries case had not been material because, even had she applied the overarching criterion, the Home Secretary would still have certified his claim; and that the misdirection in the first certification of Mr Byndloss claim had been cured by a correct direction in the second certification of it.
+Earlier Richards LJ had observed: There may in practice be relatively few cases where removal for an interim period pending an appeal would be in breach of Convention rights in the absence of a risk of serious irreversible harm, but it is a possibility which must be focused on as a necessary part of the decision making process.
+With respect, I would not associate myself with this observation of Richards LJ.
+It would lull case workers into thinking that they would be safe to concentrate on weighing a real risk of serious irreversible harm to the prospective appellant himself.
+But, as I will explain, a specific focus on the risk of serious harm to the prospects of his appeal might very well ground a conclusion that his removal in advance of it would breach his Convention rights.
+Any analysis of section 94B must also include reference to the discretion which it confers on the Home Secretary not to certify the claim even when she concludes that to do so would not breach Convention rights.
+No doubt its exercise will be rare.
+H: JUDICIAL REVIEW OF CERTIFICATION
+In their proposed appeals to the tribunal Mr Kiarie and Mr Byndloss will argue that their deportation would breach their rights under article 8.
+In the present proceedings for judicial review they argue analogously that their deportation in advance of their proposed appeals would breach their rights under article 8.
+Although the focus of the two inquiries is different, should the judicial approach to the Home Secretarys respective decisions be different? After all, both the tribunal when it hears the appeals and the court or tribunal when it hears the applications for judicial review are public authorities, which act unlawfully if they act in a way which is incompatible with a Convention right: section 6(1) of the Human Rights Act 1998 (the 1998 Act).
+When on an appeal the tribunal considers an argument that deportation would breach the appellants Convention rights, for example under article 8, its approach to the Home Secretarys decision is not in doubt.
+It was recently explained by Lord Reed in the Ali case, cited at para 33 above, in paras 39 to 50.
+In summary, the tribunal must decide for itself whether deportation would breach the appellants Convention rights; in making that decision, it can depart from findings of fact made by the Home Secretary and indeed can hear evidence and make findings even about matters arising after her decision was made (section 85(4) of the 2002 Act); and, in making that same decision, it must assess for itself the proportionality of deportation, albeit attaching considerable weight to the considerations of public policy upon which the Home Secretary has relied and to any other part of her reasoning which, by virtue of her position and her special access to information, should carry particular authority.
+There is no doubt that, in proceedings for judicial review of a certificate under section 94B, the court or tribunal must also decide for itself whether deportation in advance of the appeal would breach the applicants Convention rights.
+There is no doubt that, in making that decision, it must assess for itself the proportionality of deportation at that stage.
+As Lord Neuberger of Abbotsbury said in the proceedings for judicial review in R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2014] UKSC 60, [2015] AC 945, at para 67: where human rights are adversely affected by an executive decision, the court must form its own view on the proportionality of the decision, or what is sometimes referred to as the balancing exercise involved in the decision.
+Lord Neuberger proceeded, however, to add a qualification referable to the degree of respect to be afforded to the judgment in that regard of the primary decision maker; and he did so along the lines of the last part of my summary in para 42 above.
+The issue which arises relates to the courts treatment of the Home Secretarys findings of fact when it comes to decide for itself whether deportation in advance of the appeal would breach the applicants human rights.
+To what extent should it inherit and adopt them? In the Court of Appeal Richards LJ said of the Home Secretary: In my judgment, her findings of fact are open to review on normal Wednesbury principles, applied with the anxious scrutiny appropriate to the context: R (Giri) v Secretary of
+State for the Home Department [2015] EWCA Civ 784
+In the Giri case, now reported at [2016] 1 WLR 4418, the issue was whether the Home Secretary had been entitled to refuse to grant the applicant leave to remain in the UK.
+She had been entitled to do so if, in making his application for leave, he had failed to disclose a material fact.
+She found as a fact that he had failed to do so.
+The Court of Appeal applied the Wednesbury criterion in holding that her finding of fact had not been unreasonable.
+The difficulty is that the Giri case did not engage the courts duty under section 6 of the 1998 Act.
+In Manchester City Council v Pinnock (Nos 1 and 2) [2010] UKSC 45, [2011] UKSC 6, [2011] 2 AC 104, a tenant of a house owned by a local authority argued that possession of the house pursuant to the order which it sought against him would breach his rights under article 8.
+This court held at para 74 that: where it is required in order to give effect to an occupiers article 8 Convention rights, the courts powers of review can, in an appropriate case, extend to reconsidering for itself the facts found by a local authority, or indeed to considering facts which have arisen since the issue of proceedings, by hearing evidence and forming its own view.
+In the Lord Carlile case, cited at para 43 above, Lord Sumption said, more broadly, at para 30: when it comes to reviewing the compatibility of executive decisions with the Convention, there can be no absolute constitutional bar to any inquiry which is both relevant and necessary to enable the court to adjudicate.
+Even when elevated by the protean concept of anxious scrutiny, application of the Wednesbury criterion to the right to depart from the Home Secretarys findings of fact (including any refusal to make such findings) in the course of a judicial review of her certificate under section 94B is in my opinion inapt.
+If it is to discharge its duty under section 6 of the 1998 Act, the court may need to be more proactive than application of the criterion would permit.
+In many cases the court is likely to conclude that its determination will not depend on the Home Secretarys findings of fact or that, if it does, her findings are demonstrably correct and should not be revisited.
+Take the case of Mr Byndloss.
+He contends that, even by reference only to the evidence before her on 3 September 2015, she was wrong, by her letter of that date, to refuse to accept his contention that he had a genuine or subsisting relationship with any of his children.
+I will explain why, in my view, his application for judicial review can be determined without the need for a court to inquire into the correctness of her refusal to accept his contention.
+But, even in the course of a judicial review, the residual power of the court to determine facts, and to that end to receive evidence including oral evidence, needs to be recognised.
+I: THE REQUIREMENTS OF ARTICLE 8
+At last I can begin to address the central issue.
+But, in answering the question did the certificates breach the rights of the appellants under article 8?, the first task is to identify what, in this context of proposed deportation in advance of an appeal, article 8 requires.
+In Al Nashif v Bulgaria (2003) 36 EHRR 655 the Bulgarian authorities had deported the first applicant to Syria on grounds of national security.
+When prior to his deportation he had sought to appeal against the deportation order, the court had ruled that, inasmuch as it was on grounds of national security, the order was not open to appeal.
+The ECtHR held that the deportation had interfered with the first applicants right to respect for his family life and that it followed from the absence of any facility to appeal against the order that the interference was not in accordance with the law within the meaning of article 8(2).
+It held: 123.
+Even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require that measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information.
+So the court held that Bulgaria had breached the first applicants rights under article 8.
+It proceeded to hold, separately, that it had breached his rights under article 13 of the Convention in conjunction with article 8.
+Article 13 provides: Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.
+When domestic UK courts are asked to determine allegations of breach of Convention rights, it is of no consequence to them that article 13 was omitted from the articles included in Schedule 1 to the 1998 Act.
+The right to an effective remedy for breaches of the substantive Convention rights is generally recognised elsewhere in the 1998 Act (Brown v Stott (Procurator Fiscal, Dunfermline) [2003] 1 AC 681, 715, Lord Hope of Craighead) and indeed, in the case of the present appellants, has been specifically recognised by the grant of a right of appeal under section 82 of the 2002 Act.
+In subsequent decisions the ECtHR seems to have preferred to locate the right to an effective remedy for breach of article 8 within article 13 rather than within the phrase in accordance with the law in article 8(2).
+The leading authority, recently indorsed in Khlaifia v Italy, Application No 16483/12, is De Souza Ribeiro v France (2014) 59 EHRR 454.
+A Brazilian man was arrested in French Guiana and ordered to be removed on the basis that his presence there was illegal.
+On the day following his arrest he filed an application for judicial review of the order but, later on that very day, he was removed to Brazil.
+The Grand Chamber of the ECtHR held that France had breached his right under article 13 in conjunction with article 8.
+He had argued that, whenever an order for removal was challenged by reference to article 8, article 13 required an automatic suspension of the removal pending determination of the challenge, just as when the challenge was by reference to articles 2 or 3.
+But the Grand Chamber declined to go so far.
+It held: 83.
+By contrast [to challenges under articles 2 or 3], where expulsions are challenged on the basis of alleged interference with private and family life, it is not imperative, in order for a remedy to be effective, that it should have automatic suspensive effect.
+Nevertheless, in immigration matters, where there is an arguable claim that expulsion threatens to interfere with the aliens right to respect for his private and family life, article 13 in conjunction with article 8 of the Convention requires that states must make available to the individual concerned the effective possibility of challenging the deportation or refusal of residence order and of having the relevant issues examined with sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality.
+There was a powerful concurring opinion to the effect that article 13 did require automatic suspension of the order when removal would allegedly put migrants in danger of irreversible damage to their family lives (para OII 21).
+But the jurisprudence of the ECtHR seems to be clear that the facility for challenge has to be effective; an effective facility for challenge will not automatically require (a) (b) suspension of the removal order; and (c) whether its suspension is required in order to make the facility effective will depend on the circumstances.
+In R (Gudanaviciene) v Director of Legal Aid Casework [2014] EWCA Civ 1622, [2015] 1 WLR 2247, the Court of Appeal, by a judgment delivered by Lord Dyson MR, also, albeit by a different route, reached the conclusion that article 8 required that an appeal against a deportation order by reference to it should be effective.
+The court (a) cited at para 65 the decision of the ECtHR in W v United Kingdom (1987) 10 EHRR 29, para 64, to the effect that article 8 required that parents who had sought contact with a child in care should have been involved in the decision making process to a degree sufficient to provide the requisite protection of their interests; (b) held at para 69 that the same requirement applied to article 8 claims by immigrants; and (c) to the tribunal should be effective. concluded at para 70 that it amounted to a requirement that their access
+J: BACKGROUND TO THE CIRCUMSTANCES
+The relevant circumstances must be considered against four features of the background.
+The first is that the proposed deportations would be events of profound significance for the future lives of Mr Kiarie, his parents and siblings; and of Mr Byndloss and, to the extent that he has or might otherwise develop a genuine relationship with them, also of his children.
+In the absence of exceptional circumstances the Home Secretary would not even consider whether to readmit either of the appellants to the UK within ten years of the date of the deportation orders: para 391(a) of the Immigration Rules, HC 395 (as amended).
+The second is that, in the absence of certificates that they are clearly unfounded, the proposed appeals of these appellants must be taken to be arguable: see para 35 above.
+The third is that, particularly in the light of this courts decision in the Ali case, every foreign criminal who appeals against a deportation order by reference to his human rights must negotiate a formidable hurdle before his appeal will succeed: see para 33 above.
+He needs to be in a position to assemble and present powerful evidence.
+I must not be taken to be prescriptive in suggesting that the very compelling reasons which the tribunal must find before it allows an appeal are likely to relate in particular to some or all of the following matters: the quality of his relationship with any child, partner or other family the depth of the appellants integration in UK society in terms of (a) family, employment and otherwise; (b) member in the UK; the extent to which any relationship with family members might (c) reasonably be sustained even after deportation, whether by their joining him abroad or otherwise; (d) welfare of any child in the UK; (e) the country of his nationality; and, surely in every case, (f) any significant risk of his re offending in the UK, judged, no doubt with difficulty, in the light of his criminal record set against the credibility of his probable assertions of remorse and reform. the impact of his deportation on the need to safeguard and promote the
+the likely strength of the obstacles to his integration in the society of
+The fourth is that the authority responsible for having directed the dramatic alteration in the circumstances of the appellant even in advance of his appeal is the respondent to the appeal herself.
+In R (Detention Action) v First tier Tribunal (Immigration and Asylum Chamber) [2015] EWCA Civ 840, [2015] 1 WLR 5341, the Court of Appeal upheld the quashing of Fast Track Rules which, in particular, required asylum seekers, if detained by the Home Secretary at specified locations, to present any appeal against the refusal of asylum within seven days of the refusal.
+Having referred in para 27 of his judgment to the principle that only the highest standards of fairness will suffice in the context of asylum appeals, Lord Dyson explained at para 38 that the timetable for the conduct of the appeals was so tight that a significant number of appellants would be denied a fair opportunity to present them.
+He explained at paras 46 to 48 that in those circumstances the court had no need to address a further argument that it had been in breach of natural justice for the Home Secretary, as the respondent to any appeal, to have been able, by detaining the asylum seeker at a specified location, to cause him to be placed into the fast track.
+Lord Dyson suggested, however, that, had the rules for the fast track been fair, it would have been irrelevant that it was the Home Secretary who had caused them to be engaged.
+I respectfully agree.
+But the role of the respondent to the proposed appeals in seeking to achieve the removal of the appellants in advance of their determination, taken in conjunction with the first three of the background features set out above, requires this court to survey punctiliously, and above all realistically, whether, if brought from abroad, their appeals would remain effective.
+For that is what their human rights require.
+K: WEAKENING THE ARGUMENTS ON THE APPEAL
+On an appeal against a deportation order the overarching issue for the tribunal will be whether the deportation would be lawful.
+But, if the certificate under section 94B is lawful, the appellant will already have been deported.
+In determining the overarching issue the tribunal will be likely to address in particular the depth of his integration in UK society and the quality of his relationships with any child, partner or other family member: see para 55 (a) and (b) above.
+But, were the certificate under section 94B lawful, his integration in UK society would already have been cut away; and his relationships with them ruptured.
+Statistics now produced by the Home Secretary, which the appellants consider to be surprisingly optimistic, suggest that an appeal brought from abroad is likely to be determined within about five months of the filing of the notice.
+So, by the time of the hearing, an appellant, if deported pursuant to a certificate, will probably have been absent from the UK for a minimum of five months.
+No doubt the tribunal will be alert to remind itself of its duty to set aside the deportation order and thus to enable an appellant to re enter the UK if his human rights were so to require.
+But, by reason of his deportation pursuant to a certificate, his human rights are less likely so to require! It is one thing further to weaken an appeal which can already be seen to be clearly unfounded.
+It is quite another significantly to weaken an arguable appeal: such is a step which calls for considerable justification.
+The Home Secretary argues that, by definition, the foreign criminal will have been in prison, perhaps also later in immigration detention, in the UK and so he will already have suffered both a loosening of his integration, if any, in UK society and, irrespective of any prison visits, an interruption of his relationship with family members.
+I agree; but in my view the effect of his immediate removal from the UK on these two likely aspects of his case would probably be significantly more damaging than that of his prior incarceration here.
+For present purposes, however, I put these substantial concerns aside.
+In my view what is crucial to the disposal of these appeals is the effect of a certificate under section 94B in obstructing an appellants ability to present his appeal.
+L: OBSTRUCTING PRESENTATION OF THE APPEAL
+The first question is whether an appellant is likely to be legally represented before the tribunal at the hearing of an appeal brought from abroad.
+Legal aid is not generally available to an appellant who contends that his right to remain in the UK arises out of article 8: para 30, Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
+So, in order to obtain legal aid, he must secure an exceptional case determination under section 10 of that Act.
+Although an appeal brought from abroad is in principle as eligible for such a determination as an appeal brought from within the UK, the determination cannot be made unless either the absence of legal aid would breach his rights under article 8 or it might breach them and provision of it is appropriate in all the circumstances: section 10(3).
+It suffices to say for present purposes that it is far from clear that an appellant relying on article 8 would be granted legal aid.
+One can say only that, were he required to bring his appeal from abroad, he might conceivably be represented on legal aid; that alternatively he might conceivably have the funds to secure private legal representation; that alternatively he might conceivably be able to secure representation from one of the specialist bodies who are committed to providing free legal assistance to immigrants (such as Bail for Immigration Detainees: see para 70 below); but that possibly, or, as many might consider, probably, he would need to represent himself in the appeal.
+Even if an appellant abroad secured legal representation from one source or another, he and his lawyer would face formidable difficulties in giving and receiving instructions both prior to the hearing and in particular (as I will explain) during the hearing.
+The issue for this court is not whether article 8 requires a lawyer to be made available to represent an appellant who has been removed abroad in advance of his appeal but whether, irrespective of whether a lawyer would be available to represent him, article 8 requires that he be not removed abroad in advance of it.
+The next question is whether, if he is to stand any worthwhile chance of winning his appeal, an appellant needs to give oral evidence to the tribunal and to respond to whatever is there said on behalf of the Home Secretary and by the tribunal itself.
+By definition, he has a bad criminal record.
+One of his contentions will surely have to be that he is a reformed character.
+To that contention the tribunal will bring a healthy scepticism to bear.
+He needs to surmount it.
+I have grave doubts as to whether he can ordinarily do so without giving oral evidence to the tribunal.
+In a witness statement he may or may not be able to express to best advantage his resolution to forsake his criminal past.
+In any event, however, I cannot imagine that, on its own, the statement will generally cut much ice with the tribunal.
+Apart from the assistance that it might gain from expert evidence on that point (see para 74 below), the tribunal will want to hear how he explains himself orally and, in particular, will want to assess whether he can survive cross examination in relation to it.
+Another strand of his case is likely to be the quality of his relationship with others living in the UK, in particular with any child, partner or other family member.
+The Home Secretary contends that, at least in this respect, it is the evidence of the adult family members which will most assist the tribunal.
+But I am unpersuaded that the tribunal will usually be able properly to conduct the assessment without oral evidence from the appellant whose relationships are under scrutiny; and the evidence of the adult family members may either leave gaps which he would need to fill or betray perceived errors which he would seek to correct.
+When the power to certify under section 94B was inserted into the 2002 Act, an analogous power was inserted into the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) (the 2006 Regulations), now recently replaced.
+Regulation 24AA(2) enabled the Home Secretary to add to an order that an EEA national be deported from the UK a certificate that his removal pending any appeal on his part would not be unlawful under section 6 of the 1998 Act.
+But regulation 24AA(4) enabled him to apply to the appropriate court or tribunal (whether by means of judicial review or otherwise) for an interim order to suspend enforcement of the removal decision.
+In Secretary of State for the Home Department v Gheorghiu [2016] UKUT 24 (IAC), the Upper Tribunal (Blake J and UTJ Goldstein) observed at para 22 that, on an application for an order to suspend enforcement, the court or tribunal would take due account of four factors.
+The fourth was that in cases where the central issue is whether the offender has sufficiently been rehabilitated to diminish the risk to the public from his behaviour, the experience of immigration judges has been that hearing and seeing the offender give live evidence and the enhanced ability to assess the sincerity of that evidence is an important part of the fact finding process It is also worthwhile to note that, even if an EEA national was removed from the UK in advance of his appeal, he had, save in exceptional circumstances, a right under regulation 29AA of the 2006 Regulations (reflective of article 31(4) of Directive 2004/58/EC) to require the Home Secretary to enable him to return temporarily to the UK in order to give evidence in person to the tribunal.
+The Home Secretary submits to this court that the fairness of the hearing of an appeal against deportation brought by a foreign criminal is highly unlikely to turn on the ability of the appellant to give oral evidence; and that therefore the determination of the issues raised in such an appeal is likely to require his live evidence only exceptionally.
+No doubt this submission reflects much of the thinking which led the Home Secretary to propose the insertion of section 94B into the 2002 Act.
+I am, however, driven to conclude that the submission is unsound and that the suggested unlikelihood runs in the opposite direction, namely that in many cases an arguable appeal against deportation is unlikely to be effective unless there is a facility for the appellant to give live evidence to the tribunal.
+But in any event, suggests the Home Secretary, there is, in each of two respects, a facility for an appellant in an appeal brought from abroad to give live evidence.
+The first suggested respect was the subject of a curious submission on the part of the Home Secretary to the Court of Appeal.
+It was that from abroad the appellant could apply for, or that the tribunal could on its own initiative issue, a summons requiring his attendance as a witness at the hearing pursuant to rule 15(1) of the Tribunal Procedure (First tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (SI 2014/2604) (the 2014 Rules).
+The curiosity of the submission is that such a summons is not enforceable in respect of a person outside the UK.
+Nevertheless the Court of Appeal held that the issue of a summons would be a legitimate way of putting pressure on the Home Secretary to allow the appellant to return to the UK to give oral evidence.
+Before this court the Home Secretary does not continue to contend for the suitability of a summons under rule 15(1).
+She nevertheless suggests that the tribunal could, by direction, stress the desirability of the appellants attendance before it and that, were she thereupon to fail to facilitate his attendance, the appellant could seek judicial review of the certificate under section 94B and, if successful, a consequential order for his return at least pending the appeal.
+But whether the tribunal could, or if so would, give such a direction in the teeth of a subsisting certificate is doubtful; and in any event it seems entirely impractical for an appellant abroad to apply first for the unenforceable direction and then for judicial review of any failure to comply with it.
+The second suggested respect has been the subject of lengthy and lively argument.
+The suggestion is that the appellant can seek to persuade the tribunal to permit him to give live evidence from abroad by video link or, in particular nowadays, by Skype.
+There is no doubt that, in the context of many appeals against immigration decisions, live evidence on screen is not as satisfactory as live evidence given in person from the witness box.
+The recent decision of the Upper Tribunal (McCloskey P and UTJ Rintoul) in R (Mohibullah) v Secretary of State for the Home Department [2016] UKUT 561 (IAC) concerned a claim for judicial review of the Home Secretarys decision to curtail a students leave to remain in the UK on the grounds that he had obtained it by deception.
+The Upper Tribunal quashed the decision but, in a footnote, suggested that the facility for a statutory appeal would have been preferable to the mechanism of judicial review and that it would be preferable for any statutory appeal to be able to be brought from within the UK.
+It said: (90) Experience has demonstrated that in such cases detailed scrutiny of the demeanour and general presentation of parties and witnesses is a highly important factor.
+So too is close quarters assessment of how the proceedings are being conducted for example, unscheduled requests for the production of further documents, the response thereto, the conduct of all present in the courtroom, the taking of further instructions in the heat of battle and related matters.
+These examples could be multiplied.
+I have found the mechanism of evidence by video link to be quite unsatisfactory in other contexts, both civil and criminal.
+It is not clear whether the aforementioned essential judicial exercises could be conducted satisfactorily in an out of country appeal.
+Furthermore, there would be a loss of judicial control and supervision of events in the distant, remote location, with associated potential for misuse of the judicial process.
+Although the Home Secretary stresses that the Upper Tribunal was addressing the determination of issues relating to deception, its reservations about the giving of evidence by electronic link seem equally apt to appeals under article 8 against deportation orders.
+Indeed one might add that the ability of a witness on screen to navigate his way around bundles is also often problematic, as is his ability to address cross examination delivered to him remotely, perhaps by someone whom he cannot properly see.
+But, although the giving of evidence on screen is not optimum, it might well be enough to render the appeal effective for the purposes of article 8, provided only that the appellants opportunity to give evidence in that way was realistically available to him.
+Inquiry into the realistic availability of giving evidence on screen to the tribunal gets off to a questionable start: for in her report entitled 2016 UK Judicial Attitude Survey, Professor Thomas, UCL Judicial Institute, records that 98% of the judges of the First tier Tribunal throughout the UK responded to her survey and that, of them, 66% rated as poor the standard of IT equipment used in the tribunal.
+In Secretary of State for the Home Department v Nare [2011] UKUT 443 (IAC) the Upper Tribunal (Mr CMG Ockelton VP, UTJ Grubb and IJ Holmes), in the course of considering an allegation that a judge of the First tier Tribunal had too readily allowed a witness to give evidence by telephone, gave guidance as to how the tribunal should approach any application for a direction that evidence be given by electronic link.
+At that time the rules specifically provided for such a direction to be given; now, by rules 1(4) and 14(1)(e) of the 2014 Rules, provision for it is encompassed in the definition of a hearing, together with the power to direct the manner in which any evidence or submissions are to be provided [including] orally at a hearing.
+The Upper Tribunal prefaced its guidance by observing at para 17 that departure from the usual model of oral evidence given directly in the courtroom was likely to reduce the quality of evidence and the ability both of the parties to test it and of the judge to assess it.
+Its guidance, given in para 21, included: that the application should be made and determined well before the (a) substantive hearing; (b) that the application should not only explain the reason for evidence to be given on screen and indicate the arrangements provisionally made at the distant site but also include an undertaking to be responsible for any expenses incurred; (c) that, were the evidence to be given from abroad, the applicant should be able to inform the tribunal that the foreign state raised no objection to the giving of evidence to a UK tribunal from within its jurisdiction; (d) that the applicant should satisfy the tribunal that events at the distant site were, so far as practicable, within its observation and control, that the evidence would be given there in formal surroundings and be subject to control by appropriate officials and that nothing could happen off camera which might cast doubt on the integrity of the evidence; and (e) suitable facilities.
+that a British Embassy or High Commission might be able to provide
+Bail for Immigration Detainees (BID), a charity which provides a small minority of those facing deportation with free legal advice and even representation and which intervenes in the appeals before the court, provides a helpful example of how the tribunal seeks to implement the guidance given in the Nare case.
+In 2016 BID represented a Nigerian citizen in his appeal against a deportation order by reference to his rights under article 8.
+His claim had been certified under section 94B so he had been removed to Nigeria in advance of the appeal.
+On his application, through BID, to give evidence on the appeal from Nigeria by Skype, the tribunal sought to implement the guidance summarised at para 69(d) above by the following direction: The tribunal must be advised in advance of the hearing of the arrangements made to enable the appellant to give evidence in a secure location, attended by a local agent or representative instructed by the appellants solicitors and whose identity has at the time of such advice been provided to the tribunal.
+In the same order the tribunal also sought to implement the guidance
+summarised at para 69(b) above by the following direction: All necessary equipment and Skype link must be provided and paid for by the appellant but must include: (i) Projection equipment (ii) Audio equipment (iii) Wi fi link to enable all present to see and hear the appellant give evidence.
+As is apparent from this direction, the tribunal requires an applicant to pay for provision of the necessary equipment not only at the distant end but also at the hearing centre itself.
+When, in a letter written in response to the direction, BID requested the tribunal to buy, install and maintain its own equipment for the purpose of hearing evidence from abroad, one of its judges replied: Unfortunately, the Tribunal has no funds to provide equipment or technical ability, hence the onus in that regard we have to place upon appellants and their representatives.
+In the event the appellant represented by BID was furnished by a friend with the equipment necessary for his use in Nigeria in giving evidence by Skype; and, since the friend was a lawyer, he was able and willing also to exercise free of charge the degree of control required by the tribunal.
+But the appellant could not afford to purchase the equipment for use at the hearing centre; and so it was BID which bought a laptop computer (240), a projector (252) and a 3G mobile telephone contract (33.97 per month), for use there at the hearing of his appeal.
+The researches of the solicitors for Mr Kiarie indicate that it would cost the equivalent of 240 per hour to rent a video conference room for his use in Nairobi and that therefore a rental for say seven hours, so as to enable counsel to conduct a pre hearing conference with him as well as to cover the probable length of the hearing, would cost 1,680.
+The researches of the solicitors for Mr Byndloss indicate that the hourly cost of renting a video conference room for his use in Kingston would be marginally less but they estimate that it would be necessary to rent it for 11 hours in order to cover the probably lengthier hearing of his appeal.
+It is already clear however that the cost of hiring the necessary equipment for use at the distant end of any evidence given by video link or Skype is only part of the cost which an appellant must bear.
+He must also bear the cost of providing the equipment for use at the hearing centre and he may well have to pay for the attendance beside him of someone able and willing to exercise the degree of control required by the tribunal.
+Apart, however, from having to meet the overall costs of giving evidence in that way, an appellant has to confront formidable technical and logistical difficulties.
+Powerful evidence is given by the appellants solicitors and other legal specialists in the field to the effect that: it can be a slow and tortuous process to obtain the consent of the (a) foreign state for evidence to be given from within its jurisdiction; (b) it can be difficult to achieve compatibility between the system adopted at the distant end and the system installed at the hearing centre, with the result that a bridging service sometimes needs to be engaged and funded; it can be difficult to alight upon a time for the link to begin and end (c) which is both acceptable to the tribunal and practicable at the distant end in the light of the time difference; and (d) if, as is not uncommon, the link fails during the hearing and cannot then and there be restored, the tribunal can prove reluctant to grant an adjournment to another date.
+Apart from the difficulty surrounding his giving live evidence to the tribunal, an appellant deported in advance of the appeal will probably face insurmountable difficulties in obtaining the supporting professional evidence which, so this court is told, can prove crucial in achieving its success.
+In support of his claim to present no significant risk of re offending, an appellant is likely to wish to submit evidence from his probation officer; but, upon his deportation, his probation officer will have closed his file and will apparently regard himself as no longer obliged to write a report about him.
+An appellant may also wish to submit evidence from a consultant forensic psychiatrist about that level of risk.
+But the evidence in these proceedings of Dr Basu MRC Psych, Clinical Director at Broadmoor Hospital, is that he has never sought to assess the risk posed by a person visible to him only on screen and that any such assessment would have to be treated with considerable caution.
+In support of an appellants likely claim to have a close and active relationship with a child, partner or other family member in the UK, an appellant will not uncommonly adduce, as in these preliminary proceedings Mr Byndloss has already sought to do, a report by an independent social worker who, so he hopes, will speak of the quality, and in particular for the family the importance, of the relationship.
+But a report compiled in the absence of the social workers direct observation of the appellant and the family together is likely to be of negligible value.
+It was more than 30 years ago that, in the appellate committee which preceded the creation of this court, concern was first expressed about the value of an appeal which was required to be brought from abroad.
+In R (Khawaja) v Secretary of State for the Home Department [1984] AC 74 Lord Fraser of Tullybelton observed at pp 97 98: in spite of [a] decision that the illegal immigrant be removed from this country, it will still be open to him to appeal under section 16 of [the 1971 Act] to an adjudicator against the decision to remove him.
+The fact that he is not entitled to appeal so long as he is in this country section 16(2) puts him at a serious disadvantage, but I do not think it is proper to regard the right of appeal as worthless.
+At least the possibility remains that there may be cases, rare perhaps, where an appeal to the adjudicator might still succeed.
+Today, however, this court is invested with responsibility for deciding whether two foreign criminals who, by reference to article 8, each have arguable appeals against the deportation orders made against them and who have rights thereunder for their appeals to be effective, would suffer a breach of those rights if they were to be deported in advance of the hearing of the appeals.
+I conclude that, for their appeals to be effective, they would need at least to be afforded the opportunity to give live evidence.
+They would almost certainly not be able to do so in person.
+The question is: as a second best, would they be able to do so on screen? The evidence of the Home Secretary is that in such appeals applications to give evidence from abroad are very rare.
+Why? Is it because an appellant has no interest in giving oral evidence in support of his appeal? I think not.
+It is because the financial and logistical barriers to his giving evidence on screen are almost insurmountable.
+In this case the Court of Appeal has indorsed a practice in which, so it seems, the Home Secretary has, not always but routinely, exercised her power under section 94B to certify claims of foreign criminals under article 8.
+But she has done so in the absence of a Convention compliant system for the conduct of an appeal from abroad and, in particular, in the absence of any provision by the Ministry of Justice of such facilities at the hearing centre, and of some means by which an appellant could have access to such facilities abroad, as would together enable him to give live evidence to the tribunal and otherwise to participate in the hearing.
+Between 28 July 2014 and 31 December 2016 the Home Secretary issued 1,175 certificates pursuant to section 94B in relation to foreign criminals, all, therefore, with arguable appeals.
+Of those 1,175 persons, the vast majority were no doubt duly deported in advance of their appeals.
+But by 31 December 2016 only 72 of them had filed notice of appeal with the tribunal from abroad.
+It may well be that on 13 February 2017 a few of those appeals remained undetermined.
+The fact remains, however, that, as of that date, not one of the 72 appeals had succeeded.
+It remains only to re cast the reasoning expressed in this judgment within its proper context of a claim that deportation pursuant to the two certificates under section 94B would breach the procedural requirements of article 8.
+The appellants undoubtedly establish that the certificates represent a potential interference with their rights under article 8.
+Deportation pursuant to them would interfere with their rights to respect for their private or family lives established in the UK and, in particular, with the aspect of their rights which requires that their challenge to a threatened breach of them should be effective.
+The burden then falls on the Home Secretary to establish that the interference is justified and, in particular, that it is proportionate: specifically, that deportation in advance of an appeal has a sufficiently important objective; that it is rationally connected to that objective; that nothing less intrusive than deportation at that stage could accomplish it; and that such deportation strikes a fair balance between the rights of the appellants and the interests of the community: see R (Aguilar Quila) v Secretary of State for the Home Department [2011] UKSC 45, [2012] 1 AC 621, para 45.
+The alleged objectives behind the power to certify a claim under section 94B have been set out in section F above.
+I will not prolong this judgment by addressing whether the power is rationally connected to them and as to whether nothing less intrusive could accomplish them.
+I therefore turn straight to address the fair balance required by article 8 and I conclude for the reasons given above that, while the appellants have in fact established that the requisite balance is unfair, the proper analysis is that the Home Secretary has failed to establish that it is fair.
+I agree with Lord Wilson that these two appeals should be allowed, but my
+M: CONCLUSION
+So I would allow the appeals and quash the certificates.
+LORD CARNWATH:
+emphasis is rather different.
+The starting point is section 94B(2) of the 2002 Act, under which it is a precondition of certification that the Secretary of State considers that removal of P to the relevant country in advance of the hearing of the appeal would not be unlawful under section 6 of the Human Rights Act 1998 Given the important consequences of certification, I would read the section 6 precondition as implying a requirement for the Secretary of State to satisfy herself, on adequate information, that there will be no breach of section 6.
+In this case the alleged breaches relate to the appellants respective rights under article 8 of the Convention.
+If the section 6 precondition is satisfied, then (under subs (3)) the Secretary of State may certify, on grounds which include (in particular) that P would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the (relevant) country The drafting is awkward.
+Although the power is discretionary, and the grounds are stated to include absence of risk of irreversible harm, there is no indication what other grounds there might be for exercise of the power, or indeed for declining to exercise it.
+Indeed, absence of such risk might be more readily understood as a pre condition to certification (under subs (2)) rather than as a positive ground for exercising the power.
+It is not clear why in this respect a distinction is drawn between the pre condition and the grounds.
+In any event, the policy of the Secretary of State at the relevant time, as stated in the then current guidance (dated 29 May 2015), and as confirmed by the evidence of Mr Kenneth Welsh (the Departmental witness), was that the power to certify should normally be exercised whenever the statutory criteria were satisfied: The Governments policy is that the deportation process should be as efficient and effective as possible.
+Case owners should therefore seek to apply section 94B certification in all applicable cases where doing so would not result in serious irreversible harm. (Guidance para 3.2) Mr Welsh tells us that applicable cases were intended to be confined to those which would satisfy the precondition of compliance with section 6 of the Human Rights Act 1998, although he accepts that the clarity of the guidance could be improved.
+It is unfortunate that, whether because of the awkward drafting of the section or lack of clarity in the guidance, the existence of the section 6 precondition was wholly overlooked at the time of the original decisions in both cases (made in October 2014).
+There was no express consideration whether removal pending any appeal would be consistent with the appellants rights under article 8.
+Nor had the appellants been given any notice of, or chance to comment on, the proposed certification.
+For those reasons, as the Court of Appeal correctly held, the decisions were legally flawed.
+They accordingly fell to be quashed, unless (in the case of Mr Byndloss) the error was remedied in the supplementary letter of 3 September 2015; or (in Mr Kiaries case, where there was no such supplementary letter) it was clear that the errors were immaterial, in the sense that proper consideration would have yielded the same result.
+The Court of Appeal so concluded in each case.
+In considering the reasoning of Richards LJ, it is necessary to distinguish as he did (para 39) between the substantive and the procedural aspects of rights afforded by article 8; or as Lord Wilson puts it (para 39) between harm to the prospective appellant himself, and harm to the prospects of his appeal.
+As to the former I see no reason to disagree with Richards LJs conclusion that the appellants substantive rights would not be disproportionately infringed by temporary removal pending a decision on their appeals, and that the Secretary of State was entitled so to find.
+On that aspect, I do not understand Lord Wilson ultimately to take a different view.
+His conclusions (para 78) focus on the procedural requirements of article 8.
+In fairness to Richards LJ, however, (and in respectful disagreement with Lord Wilson at para 35) I should add that, in the context of substantive rights, I would not criticise him for according weight to the public interest attached by Parliament to the removal of a foreign criminal, even in the interim period pending an appeal.
+Lord Wilson observes that the limited risk of reoffending in the period before appeal is not outweighed by the public interest in ensuring that any appeal is effective.
+However, that was not the issue.
+No one disputed that the appeal mechanism needed to be effective.
+On the other hand, the objectives of the new provision, indicated by the Ministerial statements quoted by Lord Wilson (para 31), were directed, not specifically to the risk of offending in the interim period, but rather to speeding up the process of deportation both as an end in itself, and for the purpose of reducing what was seen as abuse by building up further claims to a settled life.
+The emphasis given by Richards LJ to the public interest in deportation can be seen as a natural extension of this courts reasoning in Ali v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799 (see para 38) recognising the great weight attached to the public interest in the deportation of foreign offenders.
+That is now given statutory form in section 117C of the 2002 Act, introduced at the same time as section 94B by the Immigration Act 2014.
+I turn to the more difficult issue concerning the procedural aspects of article 8: whether (as Richards LJ put it para 40) the Secretary of State took the necessary steps to satisfy herself that the procedural guarantees of article 8 would be met by an out of country appeal before certifying under section 94B.
+He was right in my view to emphasise the duty of the Secretary of State in this respect.
+Under section 94B the responsibility for certification entrusted by Parliament to the Secretary of State carries with it the responsibility to satisfy herself (if necessary with the co operation of the Secretary of State for Justice, as the minister responsible for supporting the tribunal system) that the procedural mechanisms to ensure an effective appeal will (not may) be in place.
+Lord Wilson (para 50) has summarised the relevant Strasbourg jurisprudence.
+He refers in particular to the Grand Chamber decision in De Souza Ribeiro v France (2014) 59 EHRR 454, as establishing that, while suspension of removal is not a necessary requirement, the opportunity to challenge the removal decision must be effective, that is, at para 83 the effective possibility of challenging the deportation or refusal of residence order and of having the relevant issues examined with sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality.
+I note that the Chamber in IR v United Kingdom [2014] ECHR 340; [2014] 58 EHRR SE14 cited De Souza as illustrating the proposition that an effective remedy in this context is to be read as meaning a remedy that is as effective as can be having regard to the restricted scope for recourse inherent in the particular context (para 62).
+I agree with Richards LJ (para 64) that it is not enough that the out of country appeal may be less advantageous in some respects than an in country appeal; article 8 does not require access to the best possible procedure, but access to one which meets, as he puts it, the essential requirements of effectiveness and fairness.
+The relevant issues for this purpose will depend on the circumstances of each case.
+They will have to be considered within the framework explained by Lord Reed in Ali (paras 26, 38) (based on the so called Boultif v Switzerland (2001) 33 EHRR 50 criteria, as developed in later Strasbourg cases), and having regard to the need to show a very compelling case to outweigh the presumption in favour of deportation.
+It is not in dispute that judged by those criteria each of the appellants has at least an arguable case: for Mr Kiarie based on his relative youth, his dependence on his family in this country, and his lack of any significant connection with Kenya; for Mr Byndloss based principally on his ties with his various children and the need to safeguard their interests.
+I agree with Lord Wilson (para 7) that the issues in such cases, depending as they do primarily on evidence of the life, conduct and relationships of the appellants in this country, are quite different in kind from other more established forms of out of country appeal.
+As already noted, the need to consider this issue was overlooked at the time of the original decisions.
+By the time the appeals came before the Court of Appeal (23 September 2015) the issue had been given some consideration, albeit only very recently.
+The material available to the Secretary of State, and her consideration of this issue, are apparent from the witness statement of Mr Welsh (sworn on 14 September 2015), and in the case of Mr Byndloss, the supplementary letter sent (under Mr Welshs signature) a few days before.
+It is convenient to start with the latter.
+The letter, extending to 21 pages, contained a very detailed consideration of Mr Byndloss substantive case under article 8, but the procedural arguments were dealt with relatively shortly.
+The writer noted Mr Byndloss stated wish to participate in the hearing: by giving evidence of his remorse for his crimes and his reasons for committing them, and to show that he was a good father and was trying to maintain contact with his children; by listening to the Home Offices evidence and submissions; and by assisting his representatives with preparation for the hearing and reading.
+The response was that he would be able to submit a written statement of his own evidence, supported by evidence from the mothers of the children; and that he would be able to read the Home Offices statements and give instructions to his legal advisers by email.
+Further: It is open to you to apply to the Tribunal to give evidence by video link if you and your legal representatives consider that this is essential to the fair determination of the appeal.
+Alternatively, if the Tribunal considers that oral evidence from you on this point is essential to the fair determination of the appeal, it can order that you give evidence by video link.
+There appears to have been no equivalent letter in relation to Mr Kiaries procedural rights.
+However, Mr Welshs witness statement was addressed to both appeals.
+It was designed to provide evidence about the practice and procedure followed by the Secretary of State and the tribunals when dealing with out of country appeals.
+In respect of the latter he drew on statements said to have been obtained from resident judges of the FTT and UT on an informal basis, based on their vast experience of out of country appeals.
+Before the Court of Appeal it was accepted for the Secretary of State that such statements could not properly be relied on.
+But in any event both the statements, and Mr Welshs reliance on them, are open to the criticism that they did not adequately address the distinctive features of an article 8 appeal in a deportation case.
+On the other hand, Mr Welsh fairly noted the practical limitations of use of video link particularly in the First tier Tribunal, including the lack of facilities in some centres and competing demands from other priorities (such as bail hearings), the need for compatibility with overseas equipment, the need for the appellant to bear the costs, and the need to co ordinate timings with appeal hearings.
+As Richards LJ explained (para 56), in addition to evidence on this aspect for the appellants, the Court of Appeal received a joint note agreed by counsel providing an outline of out of country appellate procedures, including guidance from the Upper Tribunal on the use of video facilities.
+At the heart of the Court of Appeals reasoning, in line with the submissions of the Secretary of State, was the proposition that the tribunal, whose independence and impartiality were not in doubt, could be relied on to provide the necessary procedural safeguards to ensure a fair process.
+As Richards LJ said, at para 65: They will be alert to the fact that out of country appeals are a new departure in deportation cases, and they will be aware of the particular seriousness of deportation for an appellant and his family.
+All this can be taken into account in the conduct of an appeal.
+If particular procedures are needed in order to enable an appellant to present his case properly or for his credibility to be properly assessed, there is sufficient flexibility within the system to ensure that those procedures are put in place.
+That applies most obviously to the provision of facilities for video conferencing or other forms of two way electronic communication or, if truly necessary, the issue of a witness summons so as to put pressure on the Secretary of State to allow the appellants attendance to give oral evidence in person.
+He acknowledged the difficulties for any appellant, particularly when unrepresented, in preparing evidence for an appeal and presenting it to the tribunal.
+But he did not regard these as sufficient to amount to a denial of effective participation in the decision making process: In these days of electronic communications, an out of country appellant does not face serious obstacles to the preparation or submission of witness statements or the obtaining of relevant documents for the purposes of an appeal.
+He can instruct a lawyer in the UK if he has the funds to do so.
+If he does not have the funds to instruct a lawyer but the case is so complex that an appeal cannot properly be presented without the assistance of a lawyer, he will be entitled to legal aid under the exceptional funding provisions considered in R (Gudanaviciene) v Director of Legal Aid Casework (para 66)
+In considering that reasoning, in my view, it is necessary to distinguish between two separate elements: first, the ability of the appellant from abroad to assemble evidence and prepare and present his case; secondly, his ability to give oral evidence if required.
+In doing so we have the advantage of the new evidence (in the form of a witness statement by Mr Makhlouf, Assistant Director of BID), submitted by Mr Fordham without objection from the Secretary of State, as to the practical problems for appellants of conducting effective appeals from abroad.
+On the first element, as Lord Wilson explains (para 60), it is at best uncertain what assistance will be available to an appellant without resources of his own when conducting his appeal from abroad.
+Richards LJ, at para 66, referred to the potential availability of exceptional legal aid funding under the provisions considered in R (Gudanaviciene) v Director of Legal Aid Casework.
+However, Mr Makhlouf refers to the difficulties in practice for those in the position of the appellants to obtain legal aid under these provisions.
+Without such assistance, or assistance from a body such as BID, it is difficult to see how an appellant from abroad can realistically prepare and present an effective appeal.
+Even if such legal assistance were available (as it appears to be in the present cases), there are likely to be major logistical problems in ensuring that documents are made available and instructions obtained in the run up and during the course of the hearing.
+With regard to the second element, there is a dispute between the parties as to the likely importance of such direct oral evidence from the appellant in person.
+Mr Drabble submits that in deportation appeals, as contrasted with entry clearance appeals, such evidence is likely to be of central importance.
+He relies on comments of the Upper Tribunal (Blake J and Judge Goldstein) in Secretary of State for the Home Department v Gheorghiu [2016] UKUT 24 (IAC) para 22(iv): in cases where the central issue is whether the offender has sufficiently been rehabilitated to diminish the risk to the public from his behaviour, the experience of immigration judges has been that hearing and seeing the offender give live evidence and the enhanced ability to assess the sincerity of that evidence is an important part of the fact finding process (see for example the observations of this Tribunal as to the benefits of having heard the offender in Masih (Pakistan) [2012] UKUT 46 (IAC) at para 18; see also Lord Bingham in Huang [2007] 2 AC 167 at para 15).
+By contrast Lord Keen for the Secretary of State, at para 90 of his case, submits that the issues raised in a deportation appeal brought by a foreign criminal are unlikely to require live evidence from the appellant: The nature and extent of the foreign criminals ties to the UK, including his length of residence and relationship with family members, is rarely in dispute.
+In those rare cases in which there is a dispute concerning, for example, the extent of a foreign criminals relationship with a partner and/or her children, it is usually the evidence of the partner that is of most significance in resolving that dispute.
+The critical and determinative question is whether the interests of the foreign criminal and/or any affected family members are sufficient to outweigh the public interest in deportation.
+That resolves to a matter of judgment for the Tribunal, and very rarely turns on issues of disputed fact.
+He points out correctly that Gheorghiu was concerned with different legislation (Immigration (EEA) Regulations 2006, regulation 21(5)(c)) under which the issue was whether the applicant represented a present and sufficiently serious threat (judgment para 9), thus raising directly the issue of his propensity to reoffend.
+There is no equivalent in the Ali criteria.
+Indeed, the Upper Tribunal in Gheorghiu had expressly distinguished the decision of the Court of Appeal in the present case.
+Lord Wilson attaches weight in particular to the need, as he sees it, for the appellant to demonstrate by direct evidence (subject to cross examination) his remorse and that he is a reformed character (paras 55(f), 61).
+For my part I have considerable doubts whether an effective appeal is likely to turn on such subjective issues.
+I see force in Lord Keens submission that in general application of the Ali criteria is likely to turn on the evaluation of factual matters which are either not in dispute, or capable of proof by evidence other than of the appellant in person.
+It is true that one of the Boultif criteria concerns the time elapsed since the commission of the offences and the applicants conduct in during that period.
+As the Grand Chamber explained in Maslov v Austria [2008] ECHR 546, [2009] INLR 47, para 90, a significant period of good conduct since the offence has a certain impact on the assessment of the risk which that person poses to society.
+However, there is no suggestion in the courts own consideration of that issue in Maslov (paras 91 95) that it was seen as depending on subjective evidence as to the state of mind of the appellant, as opposed to objective evidence as to his actual conduct in the relevant period.
+So far as I am aware, there is nothing in the Strasbourg case law to support a general view that oral evidence by the appellant is a necessary part of an effective appeal in the sense explained in De Souza Ribeiro.
+However, I would be cautious about reaching a firm view on that issue, given my very limited practical experience of dealing with such issues at first hand, and I do not think it is necessary to do so.
+The problem for the Secretary of State seems to me more fundamental.
+As Lord Keen I think would accept, it would be wrong in principle for the Secretary of State, as the opposing party to the appeal, to be allowed to dictate the conduct of the appellants case or the evidence on which he chooses to rely.
+There may, as Mr Welsh acknowledges, be cases where the appellant fairly believes that direct oral evidence is necessary, and in any event he may reasonably wish to participate actively in the appeal by hearing and responding to the evidence as it emerges.
+Lord Keen relies on the appellants ability to apply to the tribunal to give evidence by video link, and on the tribunals power, if it considers the request well founded, to give effect to it by use of its extensive case management powers.
+That response only works if the Secretary of State is able, at the time of certification, to satisfy herself that the necessary facilities can and will be provided.
+She cannot afford to wait until the case comes before the tribunal, since by then it may be too late.
+I see no reason in principle why use of modern video facilities should not provide an effective means of providing oral evidence and participation from abroad, so long as the necessary facilities and resources are available. (Things have moved a long way since the comments of Lord Fraser in R (Khawaja) v Secretary of State for the Home Department [1984] AC 74, to which Lord Wilson refers: para 75.) However, the evidence of Mr Welsh shows how far the material before the Secretary of State at the time of the relevant decisions fell short of demonstrating how that objective was to be achieved.
+The agreed note before the Court of Appeal (para 56) did not take things much further.
+That put the burden on the applicant to make all the necessary arrangements at his own cost, as was arguably appropriate for a party seeking an indulgence to depart from the norm.
+It did not address the problem of a party who, due to his forced removal the country, and with limited resources, is unable to present his evidence or participate in the hearing in any other way.
+The problems are underlined by the unchallenged evidence of BID described by Lord Wilson (paras 70 73).
+There is no evidence that any serious consideration had been given by the Secretary of State, at the time of certification or later, to how those problems were to be overcome in practice.
+Without such consideration I do not see how she could satisfy herself that the appeal would be effective.
+Conclusion
+It is unfortunate that these appeals have come to us by a less than ideal route.
+They started with decisions by the Secretary of State on a flawed basis and without regard to what has become the critical issue.
+They proceeded to the Court of Appeal without any detailed consideration of this issue by the Upper Tribunal.
+Finally, some of the most compelling evidence (now available from BID) has come in very late in the day, and without time for evaluation by the tribunal or the Court of Appeal.
+With hindsight, it might have been better if the Court of Appeal, having decided to grant permission, had remitted the substantive application to be dealt with by a specially convened panel of the Upper Tribunal.
+That would have enabled it to look in detail at what is required to ensure an effective appeal in cases such as this.
+We are therefore lacking assistance from the body which is best equipped, and will ultimately be responsible, for determining what a fair and effective procedure requires.
+Neither the Court of Appeal, nor still less this court, has equivalent expertise or experience.
+It may be that the best way to clarify these issues would be some form of a test case before the Upper Tribunal, at which the practicalities can be looked at in more detail, and guidance developed for the future.
+For the moment, we have to deal with the appeals as best we can on the available material.
+As I have said, having made the initial decisions on a flawed basis it was for the Secretary of State to satisfy us that the error was immaterial.
+Her problem is that there is no real evidence of consideration of the practical problems involved in cases such as these in preparing and presenting a case from abroad.
+I am far from saying that those problems cannot be overcome.
+However, the evidence before us does not show that the Secretary of State had the material necessary to satisfy herself, before certification, that the procedural rights of these appellants under article 8 would be protected.
+On that limited basis I would allow the appeal.
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+This appeal tests the limits, in a modern context, of the long-established remedy known as the solicitors equitable lien.
+In its traditional form it is the means whereby equity provides a form of security for the recovery by solicitors of their agreed charges for the successful conduct of litigation, out of the fruits of that litigation.
+It is a judge-made remedy, motivated not by any fondness for solicitors as fellow lawyers or even as officers of the court, but rather because it promotes access to justice.
+Specifically it enables solicitors to offer litigation services on credit to clients who, although they have a meritorious case, lack the financial resources to pay up front for its pursuit.
+It is called a solicitors lien because solicitors used to have a virtual monopoly on the pursuit of litigation in the higher courts.
+Nothing in this judgment should be read as deciding whether the relaxation of that monopoly means that the lien is still limited only to solicitors.
+Solicitors have, since time immemorial, been entitled to a common law retaining lien for payment of their costs and disbursements.
+That is an essentially defensive remedy, which merely enables them to hold on to their clients papers and other property in their actual possession, pending payment.
+It affords no assistance where there is nothing of value in the solicitors possession, and is powerless where, in a litigation context, the defendant to the claim pays the judgment debt or agreed settlement amount direct to the solicitors client, the claimant.
+But equity deals with that deficiency in the common law by first recognising, and then enforcing, an equitable interest of the solicitor in the fruits of the litigation, against anyone who, with notice of it, deals with the fruits in a manner which would otherwise defeat that interest.
+Originally the fruits of the litigation were first identified in the judgment debt.
+Later this was extended to the debt due under an arbitration award and, later still, to the debt due to the claimant under an agreement to settle the claim.
+Each of those types of debt was identified as a form of property, a chose in action, in which equity could recognise and enforce an equitable interest in favour of the solicitor.
+It was called a lien because the chose in action represented the fruits of the solicitors work.
+But it is better analysed as a form of equitable charge.
+Traditionally, the solicitors interest could not be identified as a beneficial share in the chose, because that would have offended the laws against maintenance and champerty.
+Rather it was, from the earliest times, recognised as a security interest, enforceable against the fruits of the litigation up to the amount contractually due to the solicitor, in priority to the interest of the successful client, or anyone claiming through him.
+It did not depend upon the fruits of the litigation including a specific amount for party and party costs, such as a judgment for costs, or an element in a settlement sum on account of costs.
+In the ordinary course of traditional litigation, with solicitors acting on both sides, the amount due under a judgment, award or settlement agreement would be paid by the defendants solicitor to the claimants solicitor.
+Or the claimants solicitor might recover the sum due to his client by processes of execution.
+In either case the equitable lien would entitle the solicitor not merely to hold on to the money received, but to deduct his charges from it before accounting to his client for the balance.
+But equity would also enforce the security where the defendant (or his agent or insurer) paid the debt direct to the claimant, if the payer had either colluded with the claimant to cheat the solicitor out of his charges, or dealt with the debt inconsistently with the solicitors equitable interest in it, after having notice of that interest.
+In an appropriate case the court would require the payer to pay the solicitors charges again, direct to the solicitor, leaving the payer to such remedy as he might have against the claimant.
+This form of remedy, or intervention as it is sometimes called, arose naturally from the application of equitable principles, in which equitable interests may be enforced in personam against anyone whose conscience is affected by having notice of them, either to prevent him dealing inconsistently with them, or by holding him to account if he does.
+The modern context in which the extent of this remedy comes to be reviewed is that of the pursuit of modest claims for personal injuries arising out of road traffic accidents, by solicitors retained under a Conditional Fee Agreement (CFA) using the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (the RTA Protocol).
+In bare outline this highly effective scheme, hammered out by stakeholders under the auspices of the Civil Justice Council and approved by the Civil Procedure Rule Committee, enables modest claims for personal injuries to be notified by the claimants solicitors to the defendants insurer using a bespoke online platform (The RTA Portal) and, where liability is admitted, for a settlement to be negotiated, or quantum to be determined by the court, at a fraction of the cost and effort which would have to be deployed if the matter were to become the subject of ordinary proceedings in the County Court, and on terms which reward the claimants solicitors with modest fixed costs for their work on the process.
+It is an express objective of the RTA Protocol, and its provisions are designed so to ensure, that the solicitors are paid their fixed costs and charges at each stage of the process, direct by the defendants insurer.
+The casus belli for this litigation was a decision by the appellant insurer (Haven) to respond to the notification of claims on the RTA Portal by offering to settle direct with claimants, on terms which included no amount for their solicitors costs or disbursements (fixed or otherwise), with the twin inducements to claimants of a speedier and more generous payment than would be likely to be available from a settlement using the RTA Protocol and Portal.
+The motivation of the insurer was the opportunity to avoid having to add, to the settlement amount for the injury, the fixed costs and disbursements payable under the terms of the RTA Protocol to the claimants solicitors.
+Settlements thereby achieved included claims by clients of the respondent solicitors (Edmondson) arising from three motor accidents, all of whom retained the respondent firm on a particular type of identically worded CFA retainer, known in the trade as a CFA Lite, designed to ensure that in no circumstances would the client have to put his hands in his own pocket for payment of the firms charges.
+Edmondson responded by a claim against Haven for wrongful inducement to the clients to breach their retainer contract, intentional causing of loss by unlawful means and, by amendment, seeking equitable enforcement of its solicitors lien.
+Although the sums involved are individually modest, we were told that this practice by Haven had been repeated on a sufficiently large scale for the determination of the dispute to have financial consequences running to many millions of pounds.
+The trial judge (HHJ Jarman QC) rejected the claims in tort and refused to grant permission to appeal in respect of those claims.
+An application for permission was made to the Court of Appeal, but not dealt with because of its disposal of the claim to enforce the solicitors lien.
+That claim was rejected by the trial judge because, in his view, there had been no collusion between Haven and the claimants to cheat the solicitors, and because Haven was not on notice of the terms of the retainers.
+In the Court of Appeal [2015] EWCA Civ 1230; [2016] 1 WLR 1385 the main submission of Haven was that the particular terms of the CFA Lite retainers created no contractual liability of the claimants for Edmondsons charges, so that there was nothing upon which an equitable security could be founded.
+The Court of Appeal agreed that there was no such contractual liability upon the true construction of the retainers.
+Nonetheless it decided that the equitable jurisdiction to intervene could be extended far enough to enable the court to recognise and then enforce an interest of Edmondson under the RTA Protocol in receiving its fixed costs and charges as therein provided or, alternatively, an interest under an express provision in the retainers to sue in its clients names for recovery of those charges from Haven, and that Haven knew of those interests.
+Accordingly the Court of Appeal ordered Haven to pay the charges allowable under the RTA Protocol to Edmondson, in addition to the settlement sums already paid to the claimants.
+In this court Haven repeated its main submission that the retainers created no contractual liability to pay the charges upon which an equitable lien or charge could be founded, and submitted that the Court of Appeal had been wrong to extend the equity of intervention as it did, the extension being contrary to settled principle.
+Edmondson countered first by asserting that the retainers did contain a sufficient contractual liability of the clients for their charges to support their equitable lien on conventional grounds.
+Secondly, and in the alternative, Edmondson vigorously supported the extended power of equitable intervention in the absence of such a contractual liability, as devised by the Court of Appeal.
+This court permitted The Law Society of England and Wales to intervene in writing, broadly in support of the solution devised by the Court of Appeal, and to submit written evidence about the widespread use of the CFA Lite, and the use of the RTA Protocol.
+The court is grateful for the submissions both of the parties and of the Law Society.
+This is, according to the researches of counsel, the first occasion for this court (or its predecessor) to consider the nature and effect of the solicitors equitable lien.
+It is therefore appropriate to describe its evolution in a little more detail than might otherwise have been necessary.
+Before doing so, I must first summarise the facts, set out the relevant terms of the CFA Lite retainer, and describe the terms and modus operandi of the RTA Protocol.
+The Facts
+I must first describe the particular facts about each accident, and the steps taken to settle the claims arising from them.
+I do so, with gratitude, from the summary given in the judgment of Lloyd Jones LJ in the Court of Appeal.
+Ainsley Tonkin
+Mr Ainsley Tonkin was involved in a road traffic collision on 10 April 2012.
+Havens insured was also involved in the collision and on the 12 April 2012.
+Haven, having obtained Mr Tonkins contact details from its insureds accident report form, contacted Mr Tonkin concerning a hire vehicle.
+On 16 April 2012 Mr Tonkin entered into a CFA with Edmondson and on 17 April 2012 the case entered the Portal.
+On 20 April 2012 Mr Tonkin telephoned Haven asking where they go from here.
+He was told by Louise Richardson of Haven: ... What we can do is offer you a scheme to compensate you for your injury.
+We can work out a sum of money and you can put it into your account as soon as you agree on that figure.
+Mr Tonkin told Ms Richardson that he had his insurance solicitor and volunteered the information that there was a 14-day cooling off period.
+They then negotiated on the telephone and Ms Richardson offered 2,200.
+She said: So the offer stands at the moment at two thousand two hundred pounds and obviously [indecipherable] think about it but if you do ask your solicitors they will tell you that they can get you more ... but at the end of the day that offer will come from myself and we through solicitors we have to pay solicitor costs as well.
+Mr Tonkin replied that he fully understood that and went on to raise other matters.
+They eventually negotiated a settlement at 2,350.
+Mr Tonkin asked what he should do about the solicitors he had instructed.
+Ms Richardson said he should just call them and tell them that he did not want to deal with them any more and they could just close the claim.
+On 23 April 2012 Haven sent a written offer of settlement to Mr Tonkin who on 24 April 2012 completed and signed the mandate of acceptance which was returned to Haven on 26 April.
+The mandate of acceptance confirmed that the offer was accepted: in full and final settlement of my claim for Pain, Suffering & Loss of Amenity in respect of injuries sustained and any financial losses incurred in relation to the road traffic accident.
+Michael Wheater, Dale Makey, Saul Mohsin and Rose Lunt
+On 23 June 2012, Mr Michael Wheater, Mr Dale Makey, Mr Saul Mohsin and Ms Rose Lunt were all travelling in the same vehicle when it was involved in a road traffic accident.
+On 20 July 2012 all four entered into CFAs with Edmondson and on 23 July 2012 their cases entered the Portal.
+On 24 July 2012 Haven sent to each of them a letter containing an offer of settlement.
+On 7 August 2012 Mr Mohsin telephoned Mr OConnell of Haven who told him that we offer services if you want to come to us to avoid going to the solicitors.
+Mr Mohsin explained that he had actually gone to some solicitors but he was concerned that it was going to take a long time to get everything settled.
+Later that day Mr Mohsin telephoned Haven again with the news that he had spoken to Mr Wheater, Mr Makey and Ms Lunt and that they were all going to accept the offer.
+On the same day Mr Mohsin sent an email enclosing mandates of acceptance completed by all four claimants.
+Daniel Grannell
+Mr Daniel Grannell was involved in a road traffic accident on 30 August 2012.
+On the following day he entered into a CFA with Edmondson and his case entered the Portal that day.
+On 10 September 2012 Haven sent Mr Grannell a letter offering to settle the claim for 1,900.
+On 14 September 2012 Haven received a completed mandate of acceptance signed by Mr Grannell on 13 September 2012.
+Thereafter an impostor claiming to be Mr Grannell spoke by telephone with Haven and the compensation was paid to an account on his directions.
+When Mr Grannell subsequently contacted Haven, Haven became aware that it had been defrauded.
+In a telephone conversation on 6 November 2012 Mr Grannell stated that the mandate of acceptance dated 13 September 2012 was genuine.
+Mr Ralph McClaren of Haven told him that the offer of 1,900 was still on the table and that he could arrange for that to be paid at once.
+Mr Grannell replied that he would love that.
+Mr McClaren then said that he would contact Edmondson and tell Edmondson what they had done.
+He then added: As I say theyll probably when you speak to them theyll probably will tell you not to ya know or you shouldnt do that but for the to be honest with you if when they call you probably a bit less the reason we offer you a bit more is because of the fact the solicitors get kept out of it so we don't have to pay their fees thats basically it.
+Mr Grannell said he was absolutely happy with that.
+The facts relevant to the issue about notice were the same in all three cases.
+As will shortly appear, the RTA Protocol prescribes a simple online form of notification of a claim (a Claim Notification Form or CNF) which contains a tick box opposite a statement that the solicitors had been retained under a CFA which provided for a success fee.
+In each case Edmondson ticked the box and filled in the date of the retainer.
+Thus Haven knew that information via the Portal before it began negotiating with the claimants.
+Haven did not know the detailed terms of the retainers, which I shall now describe.
+The CFA Lite Retainers
+Each of the claimants retained Edmondson on identical terms.
+They were each sent, on the same day, the following documents.
+First, a document headed (under the firms logo) CFA, containing these relevant provisions: This agreement is a binding legal contract between you and your solicitor/s.
+Before you sign, please read everything carefully.
+This agreement must be read in conjunction with the Law Society document What you need to know about a CFA.
+Paying us If you win your claim, you pay our basic charges, our disbursements and a success fee.
+You are entitled to seek recovery from your opponent of part or all of our basic charges, our disbursements, a success fee and insurance premium as set out in the document What you need to know about a CFA.
+The Success Fee The success fee is set at 100% of basic charges, where the claim concludes at trial; or 12.5% where the claim concludes before a trial has commenced.
+In addition 5% relates to the postponement of payment of our fees and expenses and cannot be recovered from your opponent.
+The Success fee inclusive of any additional percentage relating to postponement cannot be more than 100% of the basic charges in total.
+Secondly, they were sent the Law Society document referred to in the above quotation.
+It is a standard form document published in 2005.
+It contained the following relevant provisions.
+What do I pay if I win? If you win your claim, you pay our basic charges, our disbursements and a success fee.
+The amount of these is not based on or limited by the damages.
+You can claim from your opponent part or all of our basic charges, our disbursements, a success fee and insurance premium.
+Basic charges These are for work done from now until this agreement ends.
+These are subject to review.
+Under the heading How we calculate our basic charges the document sets out a table of hourly rates.
+Road Traffic Accidents If your claim is settled before proceedings are issued, for less than 10,000, our basic costs will be 800; plus 20% of the damages agreed up to 5,000; and 15% of the damages agreed between 5,000 and 10,000.
+[If you live in London, these costs will be increased by 12.5%].
+These costs are fixed by the Civil Procedure Rules.
+Provision is then made for charging VAT.
+Dealing with costs if you win You are liable to pay all our basic charges, our disbursements and success fee.
+Normally, you can claim part or all of our basic charges, our disbursements success fee and insurance premium from your opponent.
+If we and your opponent cannot agree the amount, the court will decide how much you can recover.
+If the amount agreed or allowed by the court does not cover all our basic charges and our disbursements, then you pay the difference.
+You will not be entitled to recover from your opponent the part of the success fee that relates to the cost to us of postponing receipt of our charges and our disbursements.
+This remains payable by you.
+As with the costs in general, you remain ultimately responsible for paying our success fee.
+You agree to pay into a designated account any cheque received by you or by us from your opponent and made payable to you.
+Out of the money, you agree to let us take the balance of the basic charges; success fee; insurance premium; our remaining disbursements; and VAT.
+You take the rest.
+We are allowed to keep any interest your opponent pays on the charges.
+If your opponent fails to pay If your opponent does not pay any damages or charges owed to you, we have the right to take recovery action in your name to enforce a judgment, order or agreement.
+The charges of this action become part of the basic charges.
+In a lengthy definitions section there is this definition of win: Win Your claim for damages is finally decided in your favour, whether by a court decision or an agreement to pay you damages or in any way that you derive benefit from pursuing the claim.
+The third document is the Client Care Letter.
+It deals with a number of miscellaneous aspects of the solicitor client relationship and is not primarily drafted as a contractual document.
+But it contains the following relevant provisions: Costs: In this case we have advised and you have elected to enter into a conditional fee agreement.
+Full details of the terms of the agreement and our charging rates are set out within the conditional fee agreement and the accompanying schedules.
+For the avoidance of any doubt if you win your case I will be able to recover our disbursements, basic costs and the success fee from your opponent.
+You are responsible for our fees and expenses only to the extent that these are recovered from the losing side.
+This means that if you win, you pay nothing.
+It is this last quoted passage that is said to make the retainer a CFA Lite, because of its evident intent to assure the client that he will not in any circumstances have to put his hand in his own pocket to pay his solicitors.
+The RTA Protocol
+This voluntary pre-action protocol came into force in 2010.
+At the relevant time for present purposes it applied to claims for RTA personal injuries between 1,000 (which was the dividing line between the Fast Track and the Small Claims Track) and 10,000.
+It has since been extended to higher value claims, up to 25,000, which corresponds with the boundary between the Fast Track and the Multi Track.
+Current Government proposals to raise the Small Claims Track boundary to 5,000 for RTA cases may greatly affect its scope, since more that 90% by number of RTA cases are for damages below that level.
+I can again take the summary of the relevant provisions of the RTA Protocol from the judgment of Lloyd Jones LJ in the Court of Appeal.
+The Protocol describes in great detail the behaviour the court will normally expect of parties, of their legal representatives and of the parties insurers, involved in such claims.
+Under the Protocol scheme parties, lawyers and insurers, when required to send information to one another, are expected to do so electronically through a website (the Portal) established by road accident insurers.
+While notice of claims falling within the Protocol is expected to be given in accordance with the procedures set out in the Protocol, they are not mandatory.
+However, there are possible costs consequences if qualifying claims are not processed in accordance with the Protocol.
+The preamble to the RTA Protocol states: 2.1 This Protocol describes the behaviour the court will normally expect of the parties prior to the start of proceedings where a claimant claims damages valued at no more than 10,000 as a result of a personal injury sustained by that person in a road traffic accident.
+The aims of the Protocol are set out in paragraph 3.1.
+3.1 The aim of this Protocol is to ensure that (1) the defendant pays damages and costs using the process set out in the Protocol without the need for the claimant to start proceedings; (2) damages are paid within a reasonable time; and (3) the claimants legal representative receives the fixed costs at the end of each stage in this Protocol.
+Claims which no longer continue under the Protocol cannot subsequently re-enter the process.
+(Paragraph 5.11)
+The process is initiated by the completion of the Claim Notification Form (CNF).
+Paragraph 6.1 provides: 6.1 The claimant must complete and send - (1) the CNF to the defendants insurers; ... The RTA Protocol makes provision for response by the insurer as follows: 6.10 The defendant must send to the claimant an electronic acknowledgment the next day after receipt of the CNF; 6.11 The defendant must complete the Insurer Response section of the CNF (the CNF response) and send it to the claimant within 15 days; 6.15 The claim will no longer continue under this Protocol where the defendant, within the period in paragraph 6.11 or 6.13 - (1) makes an admission of liability but alleges contributory negligence (other than in relation to the claimants admitted failure to wear a seat belt); (2) does not complete and send the CNF response; (3) does not admit liability; or (4) notifies the claimant that the defendant considers that (a) there is inadequate mandatory information in the CNF; or (b) if proceedings were issued, the small claims track would be the normal track for that claim.
+The Protocol makes provision for fixed costs to be paid at specified points.
+Paragraph 6.18 makes provision for Stage 1 fixed costs.
+6.18 Except where the claimant is a child, the defendant must pay the Stage 1 fixed costs in rule 45.29 where liability is admitted; or (1) liability is admitted and contributory negligence (2) is alleged only in relation to the claimants admitted failure to wear a seat belt, within ten days after sending the CNF response to the claimant as provided in paragraph 6.11 or 6.13.
+If the claim proceeds to Stage 2, the Protocol requires a Stage 2 Settlement Pack including a medical report to be sent to the defendant within 15 days of the claimant approving a final medical report and agreeing to rely on it.
+(Paragraph 7.26).
+There is a 35 day period for consideration of the Stage 2 Settlement Pack by the defendant (Paragraph 7.28).
+Paragraph 7.37 provides: 7.37 Any offer to settle made at any stage by either party will automatically include, and cannot exclude - (1) (2) (3) the Stage 2 fixed costs in rule 45.29; an agreement in principle to pay disbursements; a success fee in accordance with rule 45.31(1).
+Paragraph 7.40 provides in respect of Settlement: (1) 7.40 Except where the claimant is a child or paragraphs 7.41 and 7.42 apply, the defendant must pay - the agreed damages less any (a) deductible amount which is payable to the CRU; and (b) previous interim payment; any unpaid Stage 1 fixed costs in rule 45.29; the Stage 2 fixed costs in rule 45.29; the (2) (3) (4) accordance with rule 45.30; and (5) a success fee in accordance with rule 45.31 for Stage 1 and Stage 2 fixed costs, within ten days of the end of the relevant period in paragraphs 7.28 to 7.30 during which the parties agreed a settlement.
+relevant disbursements allowed in Part 36 CPR - Offers to Settle, has been amended to take account of the Protocol.
+Part 45 CPR, Fixed Costs, makes specific provision for costs under the Protocol scheme.
+The Solicitors Equitable Lien: the Existing Law
+The earliest decision to recognise the equitable lien is Welsh v Hole (1779) 1 Dougl KB 238.
+The plaintiff obtained judgment for 20 and costs in a civil claim for assault, but then compromised the claim for a direct payment by the defendant of 10.
+There was no collusion to defeat the solicitors right to payment of his bill.
+Lord Mansfield said this: An attorney has a lien on the money recovered by his client, for his bill of costs; if the money come to his hands, he may retain to the amount of his bill.
+He may stop it in transit if he can lay hold of it.
+If he apply to the Court, they will prevent its being paid over till his demand is satisfied.
+I am inclined to go still farther, and to hold that, if the attorney give notice to the defendant not to pay till his bill should be discharged, a payment by the defendant after such notice would be in his own wrong, and like paying a debt which has been assigned, after notice.
+But I think we cannot go beyond those limits.
+There having been no notice in that case, the solicitors claim against the defendant failed.
+It is implicit in Lord Mansfields reasoning that, if there had been notice to the defendant, he would have had to pay a second time, up to the amount of the solicitors bill.
+The typically terse judgment may be said to have dealt with legal and equitable lien without clearly distinguishing between the two, but the analogy of an assigned debt shows that Lord Mansfield recognised that the solicitor had an interest in the judgment debt which the court would protect, provided that notice of that interest had been given to the debtor before payment to the judgment creditor.
+An interest dependent upon notice is typical of an equitable interest.
+Confirmation that payment of the judgment debt to the claimant after notice of the solicitors interest exposed the payer to having to pay again was provided in Read v Dupper (1795) 6 Term Rep 361.
+In that case the defendants solicitor paid the plaintiff direct, after notice of the plaintiffs solicitors interest, and had to pay again.
+Lord Kenyon began: The principle by which this application is to be decided was settled long ago, namely that the party should not run away with the fruits of the cause without satisfying the legal demands of his attorney, by whose industry, and in many instances at whose expense, those fruits are obtained.
+Lord Kenyon explained Lord Mansfields reference to assignment in Welsh v Hole in terms of equitable principle.
+He said: according to the rules of equity and honest dealing if the assignee give notice to the debtor of such assignment, he shall not afterwards be suffered to avail himself of a payment to the principal in fraud of such notice.
+In Ormerod v Tate (1801) 1 East 464 the fruits consisted of the debt arising from an arbitration award.
+That appears to have been a case of collusion, because Lord Kenyon described the arrangement to pay the claimant direct as: no other than a mere shuffle between the plaintiff and defendant to cheat the attorney of his lien.
+He described the extension of the principle to accommodate arbitration awards as justified by convenience, good sense and justice and recognised a public interest in the extension, to encourage litigants to use arbitration.
+Two early cases demonstrate that access to justice lay behind the development of the principle.
+The first is Ex p Bryant (1815) 1 Madd 49.
+Vice Chancellor Plumer said: I do not wish to relax the doctrine as to lien, for it is to the advantage of clients, as well as solicitors; for business is often transacted by solicitors for needy clients, merely on the prospect of having their costs under the doctrine as to lien.
+The Vice Chancellor also said, obiter, that knowledge of the solicitors lien on the part of the payer would be as effective as notice.
+To the same effect is Gould v Davis (1831) 1 Cr & J 415.
+The second case is In re Moss (1866) LR 2 Eq 345, although it was about a legal rather than equitable lien.
+Lord Romilly MR said: I think it of great importance to preserve the lien of solicitors.
+That is the real security for solicitors engaged in business.
+It is also beneficial to the suitors.
+It would frequently happen, but for the lien which solicitors have upon papers and deeds, that a client who is not able to advance money to enable them to carry on business would be deprived of justice, through inability to prosecute his claims in the suit.
+Barker v St Quintin (1844) 12 M & W 441 shows, better than any other, that the equitable lien operates by way of security or charge.
+Baron Parke said: The lien which an attorney is said to have on a judgment (which is, perhaps, an incorrect expression) is merely a claim to the equitable interference of the Court to have that judgment held as a security for his debt.
+A similar analysis is provided by Lord Hanworth MR in Mason v Mason and Cottrell [1933] P 199, at 214.
+The use of the concepts security and charge imply that there must be identified some fund over which it can operate.
+This was described as a necessary condition of equitable interference under this principle in In re Fuld decd (No 4) [1968] P 727, per Scarman J at 736.
+The requirement for a fund may be satisfied not just by a judgment debt or arbitration award, but also by a debt arising from a settlement agreement.
+Provided that the debt has arisen in part from the activities of the solicitor there is no reason in principle (and none has been suggested) why formal proceedings must first have been issued, all the more so in modern times when parties and their solicitors are encouraged as a matter of policy to attempt to resolve disputes by suitable forms of ADR, and when pre-action protocols of widely differing kinds have been developed precisely for that purpose.
+The authorities on the solicitors equitable lien (including many of those summarised above) were recently reviewed by the Court of Appeal in Khans Solicitors v Chifuntwe [2014] 1 WLR 1185.
+The fund in question consisted of a debt arising from the agreement of the Home Secretary to settle pending judicial review proceedings by a payment of a specific sum on account of the claimants costs.
+The payment was made direct by the Treasury Solicitor to the claimant (by then acting in person) after express notice from the claimants former solicitors that they claimed a lien.
+The Home Secretary was ordered to pay the settlement sum a second time to the solicitors, less an amount already paid by the client on account.
+Sir Stephen Sedley provided this summary, at para 33: In our judgment, the law is today (and, in our view, has been for fully two centuries) that the court will intervene to protect a solicitors claim on funds recovered or due to be recovered by a client or former client if (a) the paying party is colluding with the client to cheat the solicitor of his fees, or (b) the paying party is on notice that the other partys solicitor has a claim on the funds for outstanding fees.
+The form of protection ought to be preventative but may in a proper case take the form of dual payment.
+I consider that to be a correct statement of the law.
+It recognises that the equity depends upon the solicitor having a claim for his charges against the client, that there must be something in the nature of a fund against which equity can recognise that his claim extends (which is usually a debt owed by the defendant to the solicitors client which owes its existence, at least in part, to the solicitors services to the client) and that for equity to intervene there must be something sufficiently affecting the conscience of the payer, either in the form of collusion to cheat the solicitor or notice (or, I would add knowledge) of the solicitors claim against, or interest in, the fund.
+The outcome of the case also recognised that the solicitors claim is limited to the unpaid amount of his charges.
+Implicit in that is the recognition that the solicitors interest in the fund is a security interest, in the nature of an equitable charge.
+It remains to consider whether the decision of the Court of Appeal in the present case is either an application of that settled principle, or a legitimate extension of it, in the context of its finding that Edmondson had no contractual entitlement to its charges from any of the claimants, but only the expectation of receiving fixed costs, disbursements and a success fee under the terms of the RTA Protocol.
+But it is first necessary to determine whether or not Edmondson did have a contractual entitlement to its charges under the CFA.
+Construction of the CFA - Does the client have any contractual liability to pay the solicitors charges?
+At the heart of the Court of Appeals analysis lay a negative answer to that question.
+Like the trial judge, Lloyd Jones LJ identified a tension between the terms of the CFA itself (incorporating the Law Societys standard 2005 terms) and the last quoted passage in the Client Care Letter which, being labelled for the avoidance of any doubt, was held to prevail.
+At para 18 he said: The solicitor has no recourse against his client for the fees and is limited to what he can recover from the losing side.
+Later, at para 30, he continued: I consider that the effect of the client care letter is to override the general provisions in each CFA with the result that the underlying claimants were not under any personal liability to pay the fees of Edmondson.
+Rather, Edmondson has limited its fees to what may be recovered from the defendants in the underlying proceedings.
+In these circumstances, Edmondson would not have a lien over assets received on its clients account because there is no underlying liability of the clients to Edmondson for the lien to protect.
+I respectfully disagree.
+In my judgment, for the reasons which follow, the Client Care Letter did not destroy the basic liability of the client for Edmondsons charges expressly declared in the CFA and Law Societys standard terms.
+It merely limited the recourse from which Edmondson could satisfy that liability to the amount of its recoveries from the defendant.
+It both preserved and in my view affirmed that basic contractual liability, to the full extent necessary to form the basis of a claim to an equitable charge as security.
+The first question is whether the Client Care Letter had contractual effect at all.
+Both it and the two other documents sought to make it clear that the full terms of the retainer were to be found in the CFA document and in the incorporated Law Society terms.
+Nonetheless I am prepared to assume, in favour of the client, that the last quoted passage in the Client Care Letter was either part of the contract of retainer, or a collateral contract.
+I consider that the language of that passage does three things.
+First, it asserts a right for Edmondson to recover its fees and charges from the defendant.
+That affirms the equitable lien, since there would otherwise be no basis upon which Edmondson could do so.
+Secondly it states in clear terms that such a recovery is the means by which Edmondson can give effect to a continuing responsibility of the client for those fees.
+Thirdly it limits Edmondsons recourse for the fees to the amount recovered from the defendant.
+There is in my view a compelling parallel in a limited recourse secured loan agreement.
+A lender may lend a million pounds to a borrower, take valuable security, and then agree to limit his recourse to the amount recovered by enforcing that security.
+It would be absurd to say that the lender thereby deprived the security of all effect because the borrower would not have to put his hand in his pocket to pay anything in addition.
+The Client Care Letter was plainly intended to be read, so far as possible, in accordance with, rather than in opposition to, the CFA and Law Societys terms.
+Those two documents are, in the passages from them quoted above, shot through with clear assertions of the clients responsibility for the firms charges in the event of a win in the litigation, which is defined to include a settlement of the claim under which there is an agreement to pay the claimant damages.
+Full effect can be given to the objective stated in the Client Care Letter, that the client should not have to put his hand in his own pocket to pay the solicitors charges, without destroying the basic contractual responsibility of the client for their payment, if it is construed as I have described.
+Did Haven have Notice of Edmondsons Lien?
+The result of the above analysis is that there did exist, in each of the six cases, a sufficient contractual entitlement of Edmondson against its claimant clients to form the basis of a claim to an equitable lien over the agreed settlement debts payable by Haven on behalf of its insured drivers.
+The conventional analysis therefore requires the following questions to be answered: (1) did those settlement debts owe their creation, to a significant extent, to Edmondsons services provided to the claimants under the CFAs? and (2) in the absence of collusion did Haven have notice (or knowledge) of Edmondsons interest in the settlement debts?
+There has been no challenge to an affirmative answer to the first question, save in the case of Mr Tonkin, to which I shall return below.
+Edmondson completed and lodged the CNFs onto the RTA Portal as the first step in its discharge of its duties under its retainers.
+Each CNF contained a sufficient description of the clients claims and an indication that, unless settled, they would in due course lead to litigation.
+Even though it did not involve Edmondson in much work, it was enough to trigger Edmondsons entitlement to its basic charge, disbursements and success fee under the CFA terms if there ensued a successful outcome to the claim, and enough to galvanise Haven into making a direct settlement offer to each of the claimants.
+The question of knowledge or notice is in dispute.
+Absence of notice was the main reason why the claims failed before the judge.
+In his view it was a fatal objection that Haven did not know the detailed terms of the CFAs.
+In the Court of Appeal it was held that Haven had both express notice, implied notice and the requisite knowledge in any event.
+The claim under the traditional principles of equitable lien failed, not because of absence of notice, but because there was no underlying responsibility of the clients to pay Edmondsons charges.
+It is common ground that, by the time that Haven paid the settlement sums direct to the claimants, it knew that each of them had retained Edmondson under a CFA, but not its detailed terms.
+This much was apparent from the CNFs which Edmondson placed on the Portal.
+Haven also knew, from the fact that Edmondson chose to initiate each claim by using the RTA Portal, that Edmondson was most unlikely to have been paid its charges up front, but rather that it expected, if successful, to obtain payment of its charges from monies paid by Haven under the terms of the RTA Protocol, if the case settled while in the Portal, or by way of a costs order if it went to court.
+Either way, Haven knew that Edmondson was looking to the fruits of the claim for recovery of its charges.
+Havens knowledge that, if the claim could not be settled direct, it would have to fund Edmondsons recoverable charges is also apparent from the recorded telephone conversations with Mr Tonkin and Mr Grannell set out above.
+The judge found that Haven had this knowledge, and intended by settling direct to avoid having to pay Edmondsons charges.
+The claim of collusion failed, not because Haven lacked the requisite intent, but because each of the claimants did.
+In my judgment the Court of Appeals approach to the question of notice is to be preferred to that of the judge.
+Once a defendant or his insurer is notified that a claimant in an RTA case has retained solicitors under a CFA, and that the solicitors are proceeding under the RTA Protocol, they have the requisite notice and knowledge to make a subsequent payment of settlement monies direct to the claimant unconscionable, as an interference with the solicitors interest in the fruits of the litigation.
+The very essence of a CFA is that the solicitor and client have agreed that the solicitor will be entitled to charges if the case is won.
+Recovery of those charges from the fruits of the litigation is a central feature of the RTA Protocol.
+The re-formulation of the Equitable Lien by the Court of Appeal
+This courts conclusion that the CFAs made between Edmondson and its clients did contain a sufficient contractual entitlement to charges to support the equitable lien on traditional grounds makes it strictly unnecessary to address this further question, because the sub-stratum upon which it is based is missing.
+There is simply no need, on these facts, to do more than apply the principles summarised in the Khans case, to reach the conclusion that Edmondson are entitled to have Haven pay them the charges identified in the CFAs as recoverable in the event of a win, to the extent that those charges did not exceed the settlement sums actually agreed to be paid to the claimants.
+But the correctness or otherwise of the Court of Appeals reformulation of the principle has been extensively argued, and supported by the Law Society as intervener.
+The Court of Appeal rested its conclusion on two alternative grounds, both of which assumed that Edmondsons clients had no contractual responsibility of any kind for its charges.
+The first was that Edmondson had its own entitlement to recover its charges from Haven under the RTA Protocol.
+The second was that the clients had such an entitlement, and Edmondson had a right to sue Haven for its enforcement using the clients name for that purpose.
+There are in my judgment insuperable obstacles in the way of each of those alternatives.
+They stem mainly from the voluntary nature of the RTA Protocol.
+It is not contractual in nature (although participants do undertake certain irrelevant contractual obligations to PortalCo, which operates the RTA Portal).
+A failure to comply with some provisions, such as the requirement to lodge a CNF response within 15 days, automatically leads to the case leaving the scheme.
+Other breaches of its terms entitle, but do not oblige, the other party to take the case out of the scheme.
+True it is that, in a case where liability is not in issue, the solicitor participant has an expectation that it will receive its charges stage by stage under the scheme from the defendants insurer, but that is not a contractual or other legal right.
+Generally, breach of protocol terms may lead to adverse costs orders if the matter then becomes the subject of proceedings in court, but this lies in the discretion of the court.
+For this purpose I am prepared to assume that an offer of a settlement payment, made direct by the insurer to the claimant, which makes no provision for payment of Stage 2 fixed costs, disbursements and a success fee to the solicitor, at a time when a case has entered and not yet left the scheme, is a breach of paragraph 7.37 of the RTA Protocol.
+But it creates no legal or equitable rights of any kind, if the client has no responsibility to the solicitor sufficient to support the solicitors lien.
+There is no legal entitlement of the solicitor direct against the insurer which the lien can support by way of security.
+As for suing in the name of the client, this is (as counsel agreed) a form of contractual subrogation.
+The solicitor can be in no better position than the client, as against the insurer.
+In the present case, all the clients contracted with Haven to receive settlement sums which did not include a costs element, and were paid in full.
+Any attempt by Edmondson to stand in their shoes by way of subrogation would be met by an unanswerable defence from Haven, based upon the settlement agreements.
+Counsel for Edmondson presented a detailed and vigorous submission to the effect that the flexibility of the equitable remedy for the protection of solicitors was apt to respond to any instance of unconscionable conduct by the insurer, including breach of the RTA Protocol, all the more so because of the strong public policy in enforcing the scheme, designed as it was to balance the competing interests of its stakeholders while ensuring access to justice for the victims of road accidents at proportionate cost.
+He sought to show, by reference to the cases which I have summarised, that this remedy had that flexibility from the outset.
+I acknowledge that equity operates with a flexibility not shared by the common law, and that it can and does adapt its remedies to changing times.
+But equity nonetheless operates in accordance with principles.
+While most equitable remedies are discretionary, those principles provide a framework which makes equity part of a system of English law which is renowned for its predictability.
+I have sought to identify from the cases the settled principles upon which this equitable remedy works.
+One of them is that the client has a responsibility for the solicitors charges.
+It is simply wrong in my view to seek to distil from those cases a general principle that equity will protect solicitors from any unconscionable interference with their expectations in relation to recovery of their charges.
+Furthermore the careful balance of competing interests enshrined in the RTA Protocol assumes that a solicitors expectation of recovery of his charges from the defendants insurer is underpinned by the equitable lien, based as it is upon a sufficient responsibility of the client for those charges.
+Were there no such responsibility, it is hard to see how the payment of charges to the solicitor, rather than to the client, would be justified.
+Furthermore, part of the balance struck by the RTA Protocol is its voluntary nature.
+Its voluntary use stems from a perception by all stakeholders that its use is better for them than having every modest case go to court.
+If the court were to step in to grant coercive remedies to those affected by its misuse by others, that balance would in all probability be undermined.
+Mr Tonkin
+It was submitted for Haven that the particular facts about Mr Tonkins case did not entitle Edmondson to an equitable lien because, it was said, Edmondsons work pursuant to its retainer made no significant contribution to the settlement.
+The submission was that Haven offered Mr Tonkin a settlement before, and without regard to, Edmondson logging Mr Tonkins claim onto the Portal.
+I disagree.
+The relevant chronology is as follows.
+On 12 April 2012, shortly after the accident, Haven contacted Mr Tonkin to discuss the provision of a hire car for him.
+This had nothing to do with a personal injury claim, although of course it arose from the same accident.
+Mr Tonkin and Edmondson entered into a CFA for the purpose of pursuing his personal injury claim on 16 April and, on the following day, Edmondson logged the details of that claim onto the Portal.
+Three days later, on 20 April, and after Haven had acknowledged the claim on the Portal, Mr Tonkin telephoned Haven.
+The transcript of the conversation shows that he was ringing about the provision of a hire car.
+Haven took that opportunity to make him an oral settlement offer for his personal injuries, initially of 2,200, later revised after negotiation to 2,350.
+This was repeated in writing by Haven on 23 April, and accepted by Mr Tonkin on the following day.
+Solicitors for a claimant generally contribute to a settlement by logging an RTA claim onto the Portal in two ways.
+First, they thereby supply to the insurer the essential details of the claim necessary for the insurer to appraise it and decide whether, and if so in what amount, to make a settlement offer.
+These go well beyond the details the insurer is likely to receive from its insureds accident report, although that report will be likely to assist the insurer to decide whether liability should be put in issue.
+Secondly, they thereby demonstrate that the claimant intends seriously to pursue a claim for personal injuries, and has obtained, by the CFA, the services of solicitors for that purpose on terms which do not require the claimant to provide his own litigation funding up front.
+The incentive which that will usually supply to the insurer to settle a modest claim early, before costs increase, and where liability is not in issue, is obvious.
+In Mr Tonkins case the evidence does not show that Haven had, before Edmondson logged the claim onto the Portal, already obtained any, let alone any sufficient, information about the personal injuries claim.
+The earlier discussion with Mr Tonkin was about the provision of a hire car.
+Moreover the chronology shows that Haven had already received and acknowledged Mr Tonkins personal injury claim via the Portal before it made him a settlement offer.
+Nor did Mr Tonkin telephone Haven on 20 April to seek such a settlement.
+The inference is plain that Haven was encouraged by the logging of the claim onto the Portal to make an early offer of settlement, and nothing in the judges findings of fact displaces it.
+Mr Tonkins claim is not therefore an exception to the others, so far as concerns the application of the established principles about the solicitors equitable lien.
+Edmondson made a modest but still significant contribution to the obtaining of the settlement which ensued, and that was sufficient to trigger the lien.
+Conclusion
+For those reasons, which differ from those of the Court of Appeal, I would nonetheless dismiss this appeal, subject to one point of detail.
+The Court of Appeal proceeded upon the basis that the equitable remedy could be deployed to provide a means for Edmondson to recover from Haven precisely those fixed costs, disbursements and success fee provided for under the RTA Protocol, regardless of the amount agreed to be paid in settlement.
+By contrast the remedy exists to provide security for the solicitors charges under his retainer, limited to the amount of the debt created by the settlement agreement.
+In the present cases, one effect of the retainer was to limit those recoveries to the amount recoverable from the defendants or their insurers.
+To the extent that the fixed costs regime limits those recoveries below that recoverable under the tables in the CFAs, that limitation would have to be taken into account, as it has been by the Court of Appeals order.
+Calculations carried out at the courts request suggest that the Protocol based recovery was, in all cases other than Mr Tonkin, slightly greater than the amounts agreed to be paid in settlement of the respective claims.
+The Court of Appeals order for payment therefore needs to be reduced to the settlement amount in each case.
+The same calculations show that the Protocol-based recovery was, in the case of Mr Grannell, slightly higher than the corresponding entitlement under the relevant CFA: (2,070.50 as against 2,043.50).
+But since both amounts exceed the settlement figure of 1,900, no additional adjustment appears to be necessary.
+Counsel are asked to agree the precise form of the order which should now be made, in the light of this courts reasoning.
+Calculations carried out at the courts request suggest that the Protocol based recovery was, in all cases other than Mr Tonkin, slightly greater than the amounts agreed to be paid in settlement of the respective claims.
+The Court of Appeals order for payment therefore needs to be reduced to the settlement amount in each case.
+The same calculations show that the Protocol-based recovery was, in the case of Mr Grannell, slightly higher than the corresponding entitlement under the relevant CFA: (2,070.50 as against 2,043.50).
+But since both amounts exceed the settlement figure of 1,900, no additional adjustment appears to be necessary.
+Counsel are asked to agree the precise form of the order which should now be made, in the light of this courts reasoning.
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+The appellant (Onur), a Turkish corporation, appeals against orders made by Patten LJ in the Court of Appeal on 21 January 2016.
+An understanding of the nature of his orders requires reference to the following summary of the background.
+(a) On 22 May 2014 Rose J, [2015] 1 BCLC 89, gave judgment against Onur in favour of the respondent (Goldtrail), a UK company in liquidation, in the sum of 3.64m plus interest.
+(b) On 15 December 2014 Floyd LJ granted permission to Onur to appeal to the Court of Appeal against the order of Rose J on the basis that the appeal had a real prospect of success.
+(c) On 11 June 2015 Floyd LJ, by way of variation of an earlier order for the imposition of conditions upon the continuation of Onurs appeal, made it conditional, among other things, upon Onurs payment into court (or provision of other security for it) of 3.64m by 9 July 2015.
+(d) On 29 October 2015, in the absence of any payment into court (or provision of other security), Goldtrail applied for an order dismissing Onurs appeal and on 7 December 2015 Onur cross-applied for an order that the condition for payment into court be discharged on the ground that it could not comply with it and that the effect of dismissing the appeal by reference to it would be to stifle the appeal.
+(e) At the hearing before Patten LJ on 14 January 2016 of the application and cross-application referred to at (d), Goldtrail, in disputing that the condition for payment was such as to stifle Onurs appeal, relied in particular on the financial relationship between Onur and its wealthy owner, Mr Bagana.
+As explained by Patten LJ in his reserved judgment dated 21 January 2016, his orders were first to dismiss Onurs cross-application and thereupon to grant Goldtrails application for an order that, by reason of Onurs failure to comply with the condition imposed on 11 June 2015, its appeal should be dismissed.
+In the above circumstances this court is asked to address the principles by reference to which the Court of Appeal should determine an application by a respondent/claimant that, as a condition of any appeal to it, the appellant/defendant should pay into court (or otherwise secure payment of) part or all of the judgment sum awarded against it in the court below; and in particular to identify the principles by reference to which it should appraise a respondents contention that an appellants financial relationship with a wealthy third party is such as to defeat its complaint that such a condition would stifle its appeal.
+In the event there has been little dispute between the parties as to the principles which the Court of Appeal should apply.
+The more lively issue has been whether Patten LJ can be seen to have applied those principles in reaching his conclusions first that Onurs relationship with Mr Bagana was such as to defeat its complaint that the condition for payment would stifle the appeal; second that the condition should therefore remain in being; and third that, in the absence of compliance (or proposed compliance) with it, Onurs appeal should therefore be dismissed.
+THE SUBSTANTIVE DISPUTE
+Prior to its liquidation, Goldtrail was a holiday tour company which had been wholly owned by Mr Aydin.
+Onur is a Turkish airline, largely owned by Mr Bagana.
+In the proceedings before Rose J Goldtrail, by its liquidator, sued Onur in relation to two agreements and, irrelevantly for present purposes, sued other defendants in relation to other agreements.
+The claim against Onur arose out of the latters aspiration to cause Goldtrail to buy seats for its tourists on Onurs flights between the UK and Turkey.
+Such was the context of agreements that Mr Bagana would buy 50% of Mr Aydins shares in Goldtrail for 1m (which he paid) and that Onur would pay 3.64m (which it paid) to another company owned by Mr Aydin for its purported brokerage of an agreement by Goldtrail with Onur to buy a specified number of seats on its flights.
+Rose J found that, properly analysed, the payment of 3.64m represented consideration for Goldtrails agreement to buy the seats; that, in breach of his fiduciary duty to Goldtrail, Mr Aydin had diverted receipt of Onurs payment away from Goldtrail to his other company; that Onur had dishonestly assisted Mr Aydin in thus defrauding Goldtrail; and that it should pay damages to it in that sum.
+ONURS APPEAL
+In January 2015, following the grant on paper of permission to Onur to appeal against the order of Rose J, Goldtrail applied for the imposition of conditions.
+It was too late for it to apply under Rule 52.3(7)(b) (now Rule 52.6(2)(b)) of the Civil Procedure Rules for the actual permission to be made subject to conditions.
+It therefore applied under Rule 52.9(1)(c) (now Rule 52.18(1)(c)) for the court to exercise its discretion to impose conditions upon which an appeal may be brought.
+Paragraph (2) of Rule 52.9 (now Rule 52.18(2)) provided that the court should exercise its powers under para (1) only where there was a compelling reason for doing so.
+By its application, Goldtrail requested conditions that Onur should pay or secure 600k under interim orders for costs made by Rose J; should provide security for Goldtrails costs of the appeal in the sum of 150k; and in particular should pay into court the sum of 3.64m which Rose J had awarded to it by way of damages.
+In response Onur entered no substantive challenge to the request for the first two conditions.
+The dispute related to the requested payment into court of the judgment sum.
+Goldtrail relied on the agreed fact that in October 2014, after 22 years of flying its aircraft to the UK, Onur had ceased to do so; and Goldtrail submitted that, since Onur was likely to have no other assets even temporarily in England and Wales, there was a compelling reason for the judgment sum to be secured.
+Onurs response was that its decision to cease flights to the UK had been taken for operational reasons and that there was no evidence that it had taken steps or would take steps to obstruct enforcement of the judgment in the event of the dismissal of its appeal.
+What at that time Onur did not allege was that the disputed condition would stifle its appeal.
+By an order on paper dated 7 April 2015 Floyd LJ imposed the disputed condition.
+Onur exercised its right to cause him to reconsider his decision at the hearing which took place on 11 June 2015.
+Although in his judgment Floyd LJ expressed a willingness to assume that there was a respectable commercial explanation for the cessation of Onurs flights to the UK, he maintained his earlier conclusion that there was a compelling reason for imposing the condition.
+Upon Onurs continuation of the appeal, he therefore imposed the condition that it should pay into court (or otherwise secure payment of) 3.64m by 9 July 2015.
+On 14 July 2015, by then in breach of the condition, Onur applied for variation of it so as to permit it to make the payment into court by seven monthly instalments.
+On 27 July 2015 Floyd LJ on paper refused the application but shortly before 21 October 2015, when pursuant to Onurs request he was due to reconsider it at a hearing, Onur changed its stance.
+Its new contention was that the condition for payment of the judgment sum into court was a breach of its rights under the European Convention on Human Rights and was unlawful and that therefore the payment would not be made.
+So Floyd LJ dismissed the application for variation and directed that Goldtrails oral request for the consequential dismissal of Onurs appeal be made by formal application.
+Thus it was that on 14 January 2016 Patten LJ heard not only the anticipated application by Goldtrail for dismissal of the appeal but also a cross-application by Onur dated 7 December 2015 for discharge of the condition for payment into court of the judgment sum on the ground - asserted for the first time - that its continuation in force would stifle the appeal.
+The relevant findings, observations and conclusions of Patten LJ in his judgment dated 21 January 2016 were as follows: In 2013 he lent US $28m to Onur.
+(a) Mr Bagana was extremely wealthy and had, for example, given evidence to Rose J that 5m was not a significant outlay for himself personally.
+(b) He directly held 3.67% of the shares in Onur and held 81.19% of the shares in a company which held a further 92% of the shares in Onur.
+(c) Between 2008 and 2011 Onur had paid substantial dividends to him, which he had lent back to it, secured against its assets.
+(d) (e) By 2014 his loan account with Onur had increased to $68m.
+(f) For some reason Onur had guaranteed debts owed to him by another shareholder.
+(g) As Onurs largest secured creditor, Mr Bagana was in a position to decide which of Onurs unsecured debts should be paid and at what time.
+(h) He had a more than usually close relationship with Onur and effectively controlled its financial affairs.
+(i) According to Onurs Chief Financial Officer, Mr Bagana had said that he would contemplate making further loans to Onur only in exceptional circumstances to enable it to make commercial payments necessary to keep it in business.
+(j) With Mr Baganas support Onur was able to continue to trade.
+(k) Even had it been difficult for Onur to make the payment into court out of cash generated from its trading activities, it could have done so with his support.
+(l) Mr Bagana had decided not to fund the payment by Onur.
+(m) Were the court able to take his financial position into account in assessing Onurs ability to make the payment into court, its application to discharge the condition could not succeed.
+(n) In exceptional circumstances the ability of a company to have access to funds from a third party could be taken into account in assessing the likelihood that it could make a payment into court.
+(o) To take it into account would not be the same as to oblige that third party to comply with a condition imposed on a company.
+(p) exceptional.
+(q) Onur had failed to establish that the condition for payment into court would stifle its appeal.
+(r) So Onurs cross-application failed and, in that it had resolved not to satisfy the condition, its appeal should be dismissed.
+In the light of all the above features the circumstances were
+PRINCIPLES
+To stifle an appeal is to prevent an appellant from bringing it or continuing it.
+If an appellant has permission to bring an appeal, it is wrong to impose a condition which has the effect of preventing him from bringing it or continuing it.
+It is as if, on an application of summary judgment, the court were to grant leave to the defendant to defend the claim and then to attach a condition for payment which he could not satisfy.
+In the words of Lord Diplock in M V Yorke Motors v Edwards [1982] 1 WLR 444 at 449B: that would be a wrongful exercise of discretion, because it would be tantamount to giving judgment for the plaintiff notwithstanding the courts opinion that there was an issue or question in dispute which ought to be tried.
+Application of article 6 of the European Convention on Human Rights (being an article which confers its rights on companies as well as on human beings) yields the same conclusion.
+The article does not require a member state to institute a court of appeal but, if it does so, it must ensure that litigants in that court enjoy its fundamental guarantees: Delcourt v Belgium (1970) 1 EHRR 355.
+There will seldom be a fair hearing within article 6 if a court which has permitted a litigant to bring an appeal then, by indirect means, does not permit him to bring it.
+There is a variety of situations in which a party submits that the effect of granting or refusing an application would be to stifle his continued participation in the proceedings.
+He may do so, for example, as a claimant of a specified character, in response to an application by (a) a defendant for him to provide security for costs; or (b) as a defendant, in response to an application by the claimant for summary judgment in which the latter contends, as a fall-back, that, were leave to be given to defend the claim, it should be subject to a condition that the sum claimed be paid into court; or (c) as a party who has without good reason failed to comply with an order, in response to an application by the other for an order for him to make a payment into court; or (d) as an appellant, in response to an application by the respondent (as in the present case) that, as a condition of the appeal, he should provide security for the costs of it; or (e) as a former defendant now an appellant, in support of his application (as in the present case) that orders against him for payment of the judgment debt or costs be stayed pending his appeal; or (f) as a former defendant now an appellant, in response to an application by the respondent (as in the present case) that he should, as a condition of the appeal, pay the judgment debt into court.
+There is a qualitative difference between imposing a condition which requires a defendant/appellant to provide security for the future costs of the claimant/respondent and one which requires him to pay into court the sum awarded against him.
+The effect of the former is that, were his appeal to be dismissed, the burden of expenditure to be incurred by the claimant/respondent in resisting the appeal would not be borne by him.
+The effect of the latter is, by contrast, even more beneficial for the claimant/respondent.
+It is that, in the event (again) of the dismissal of the defendants appeal, the judgment sum would be there, as it were upon a tray, for the claimant to sweep into his pocket without his needing to undertake any attempt to enforce the courts order for payment of it.
+No doubt a court asked to impose a condition for the payment into court of the sum awarded will have well in mind that extra advantage for the claimant and corresponding disadvantage for the defendant.
+But a partys participation in proceedings can be as much stifled by an order for security for costs as by an order for payment into court of the sum claimed or awarded.
+So it is without further reference to that distinction that one may proceed to address the circumstances in which an order can be said to stifle the continuation by an appellant of an appeal.
+There is no doubt - indeed it is agreed - that, if the proposed condition is otherwise appropriate, the objection that it would stifle the continuation of the appeal represents a contention which needs to be established by the appellant and indeed, although it is hypothetical, to be established on the balance of probabilities: for the respondent to the appeal can hardly be expected to establish matters relating to the reality of the appellants financial situation of which he probably knows little.
+But, for all practical purposes, courts can proceed on the basis that, were it to be established that it would probably stifle the appeal, the condition should not be imposed.
+It is clear that, even when the appellant appears to have no realisable assets of its own with which to satisfy it, a condition for payment will not stifle its appeal if it can raise the required sum.
+As Brandon LJ said in the Court of Appeal in the Yorke Motors case, cited with approval by Lord Diplock at 449H: The fact that the man has no capital of his own does not mean that he cannot raise any capital; he may have friends, he may have business associates, he may have relatives, all of whom can help him in his hour of need.
+It seems that, in particular and as exemplified by the present case, difficult issues have surrounded the ability of a corporate appellant, without apparent assets of its own, to raise money from its controlling shareholder (or some other person closely associated with it); and this is the context of what follows.
+When, in response to the claim of a corporate appellant that a condition would stifle its appeal, the respondent suggests that the appellant can raise money from its controlling shareholder, the court needs to be cautious.
+The shareholders distinct legal personality (which has always to be respected save where he has sought to abuse the distinction: Prest v Prest [2013] UKSC 34, [2013] 2 AC 415, 487, para 34) must remain in the forefront of its analysis.
+The question should never be: can the shareholder raise the money? The question should always be: can the company raise the money?
+So one turns to the leading authority of the Court of Appeal in this area, namely Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065, [2002] CP Rep 21, which Onur contends to be, in part, erroneous in principle.
+In the Hammond Suddard case the respondent solicitors sued the appellant company for unpaid fees and it counterclaimed for damages for negligence.
+The claim succeeded and in effect the counterclaim failed.
+The appellant obtained permission to appeal.
+It unsuccessfully sought a stay of execution of the orders made by the judge on the basis that, were they to be enforced, its appeal would be stifled.
+The respondents sought the imposition of conditions upon the permission to appeal.
+They sought a condition for provision of security for the costs of the appeal, which the appellant conceded to be appropriate.
+But they also sought a condition of payment into court of the judgment debt and of the sums awarded under interim orders for costs, to which, analogously, the appellant objected that its consequence would be to stifle its appeal.
+The appellant had been incorporated in the British Virgin Islands and was owned by trustees on discretionary trusts for an unidentified but apparently wealthy family.
+The appellant had, so it said, no assets.
+But could it raise from its beneficial owners a sum equal to the judgment debt and costs in order to enable it to make the payment into court? If so, there was a compelling reason within the meaning of Rule 52.9(2) for imposing the condition sought by the respondents.
+In the Hammond Suddard case the judgment of the court was delivered by my Lord, Lord Clarke (Clarke LJ, as he then was), on behalf of himself and Wall J (as he then was).
+Having observed, at (1) of para 41, that it would be difficult for the respondents to exercise the normal mechanisms of enforcement against the appellant and, at (2), that the appellant had had access to resources which had enabled it to secure representation of the highest quality in the proceedings to date, the court concluded, at (3): There is no convincing evidence that the appellant does not either have the resources or have access to resources which would enable it to pay the judgment debt and costs as ordered.
+No criticism has been directed at the above conclusion.
+It was an impeccable summary of the courts reason for acceding to the respondents application.
+The court proceeded, at para 41(4), to find that the appellants disclosure of its financial affairs had been inadequate.
+But then, at the end of the subparagraph, it added an observation in relation to the appellant: It has wealthy owners and there is no evidence that, if they were minded to do so, they could not pay the judgment debt including the outstanding orders for costs.
+Indeed, in para 43, the court added a second observation to the same effect: Thus we see nothing unjust in providing the trust which owns the appellant with a choice.
+If it is in the interests of the appellant for the appeal to continue, the trust must procure payment of the current orders.
+I am driven to the view that Onur is right to criticise the phraseology of the courts two additional observations.
+Their intended meaning may well have been, as Goldtrail suggests, that the appellant had failed to establish that funds with which the company could make the payment into court would not be made available to it by its beneficial owners.
+But, strictly speaking, it was wrong for the court to express its reasoning in terms of whether they could themselves make that payment.
+In Socit Gnrale SA v Saad Trading, Contracting and Financial Services Co [2012] EWCA Civ 695 the Court of Appeal was required to determine applications by Socit Gnrale SA (the bank), which was the respondent to appeals which the two appellants had been permitted to bring against orders made against each of them for payment to the bank of US$49m.
+The first appellant (Saad) was a limited Saudi Arabian partnership and the second appellant (Mr Al- Sanea) was a general partner of Saad and owned 90% of its share capital.
+One of the banks applications was for a condition to be imposed upon the continuation of each of the appeals that the appellants should pay the award of US$49m into court; to which the appellants each responded that any order for payment into court would stifle their appeals.
+The courts conclusion, explained in the judgment of Aikens LJ with which Rimer LJ agreed, was that a condition, which it proceeded to impose, for their joint and several payment into court of (only) $5m would not stifle their appeals.
+In reaching this conclusion Aikens LJ punctiliously addressed the factors identified by the court as relevant in the Hammond Suddard case.
+Nothing turns on his analysis of why Mr Al-Sanea had failed to make good his contention that his appeal would be stifled.
+In relation, however, to the analogous contention of Saad, Aikens LJ addressed the additional observation which that court had made in para 41(4).
+At paras 54 and 55 of his judgment Aikens LJ said that it was difficult to judge the legitimacy of imposing upon a company a the question was whether Saad had a wealthy owner who could not, if i) minded to do so, make the payment into court on its behalf; ii) condition which would effectively require an owner to fund it; iii) but the courts additional observation in the Hammond Suddard case had been clear; iv) exceptional circumstances; and v) the answer had to be that such a condition should be imposed only in the circumstances of the present case were exceptional.
+Possibly ham-strung by the doctrine of precedent, the court in the Socit Gnrale case evidently considered it best to treat the first additional observation in the Hammond Suddard case by consigning it to that over-used store-room in the mansion of the law which is designated as exceptional circumstances.
+Such a criterion is on any view dangerous because it is not, on the face of it, linked to its context: see Norris v Government of United States of America (No 2) [2010] UKSC 9, [2010] 2 AC 487, para 56.
+It sets a snare for it may lead to the wrongful downgrading of the significance of circumstances just because they happen not to be exceptional or to their wrongful upgrading just because they happen to be exceptional: H (H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25, [2013] 1 AC 338, para 161.
+Having, however, an unconstrained ability to reject the phraseology of the additional observations, we in this court have no need to approve the superimposition upon the relevant criterion of a test of exceptional circumstances which neither party before the court seeks to defend.
+In this context the criterion is: Has the appellant company established on the balance of probabilities that no such funds would be made available to it, whether by its owner or by some other closely associated person, as would enable it to satisfy the requested condition?
+The criterion is simple.
+Its application is likely to be far from simple.
+The considerable forensic disadvantage suffered by an appellant which is required, as a condition of the appeal, to pay the judgment sum (or even just part of it) into court is likely to lead the company to dispute its imposition tooth and nail.
+The company may even have resolved that, were the condition to be imposed, it would, even if able to satisfy it, prefer to breach it and to suffer the dismissal of the appeal than to satisfy it and to continue the appeal.
+In cases, therefore, in which the respondent to the appeal suggests that the necessary funds would be made available to the company by, say, its owner, the court can expect to receive an emphatic refutation of the suggestion both by the company and, perhaps in particular, by the owner.
+The court should therefore not take the refutation at face value.
+It should judge the probable availability of the funds by reference to the underlying realities of the companys financial position; and by reference to all aspects of its relationship with its owner, including, obviously, the extent to which he is directing (and has directed) its affairs and is supporting (and has supported) it in financial terms.
+APPLICATION TO THE PRESENT CASE
+There has been lively argument before the court as to whether, in making the orders under appeal, Patten LJ must be taken to have concluded, in accordance with the correct criterion, that Onur had failed to establish that Mr Bagana would not make 3.64m available to it in order to enable it to comply with any order for its payment into court.
+There are grounds for thinking that such a conclusion might have been open to him.
+Mr Bagana signed a statement admitted by Rose J into evidence, in which, so Onur tells this court, he admitted that he was responsible for its overall operation and made the ultimate decisions referable to it; and Patten LJ made findings accordingly.
+Moreover Mr Baganas massive recent loans to Onur to enable it to continue to trade were on any view of substantial relevance to the probability of a further, modest advance.
+Oddly no statement was filed on behalf of Onur by Mr Bagana himself but the Chief Financial Officers evidence was that he would contemplate making further advances only to enable Onur to make commercial payments necessary in order to keep itself in business.
+This second- hand assertion called for careful scrutiny.
+But, in circumstances in which Patten LJ concluded that it seems clear to me that Mr Bagana has decided not to fund the payment by the company, I am driven to the view that this court cannot proceed on the basis that Onurs application for discharge of the condition was refused by reference to the correct criterion.
+Goldtrail submits with force that Patten LJ meant to conclude only that, up until that point, Mr Bagana had declined to fund the payment and that the evidence in support of any wider conclusion was far too thin.
+It further submits that for Patten LJ to have found that Mr Bagana had made a final decision never to fund it would be inconsistent with his refusal of Onurs application.
+Unfortunately, however, I cannot accept the further submission.
+The key to the proper construction of his judgment is that, following a lengthy quotation from the judgment of Aikens LJ in the Socit Gnrale case, Patten LJ concluded that the circumstances of the present case were exceptional.
+In other words he was proceeding by reference to the Court of Appeals misconception, born of the additional observations in the Hammond Suddard case and developed in the Socit Gnrale case, that in exceptional circumstances an order for a party, without apparent assets of its own, to make a payment into court could be justified by whether another person probably could advance the necessary funds to it irrespective of whether he probably would do so.
+So I would allow Onurs appeal and remit both applications to Patten LJ for him to determine Onurs application for discharge of the condition by reference to the correct criterion.
+I should record that Goldtrail put forward to him an alternative argument against discharge; of course he had no need to address it but he may now need to do so.
+I have reached a different conclusion from that arrived at by Lord Wilson.
+I am not persuaded that Patten LJ materially misstated the relevant principles or arrived at the wrong conclusion.
+It is important to put his decision in context.
+The issue throughout has been whether there was a compelling reason for imposing a condition upon which an appeal may be brought under what were then CPR 52.9(1)(c) and (2).
+Before the case came before Patten LJ it had a long history, largely before Floyd LJ.
+As Lord Wilson explains, at no stage when the issues were before Floyd LJ did Onur contend that payment of the judgment sum of 3.4m (or the provision of security in lieu) would or might stifle the appeal.
+Instead it advanced a whole series of mutually inconsistent explanations, in response to which Floyd LJ made a series of orders and gave a number of judgments, notably on 11 June, 27 July and 21 October 2015.
+Onurs applications included an application for permission to pay the judgment sum in monthly instalments of 500,000.
+Floyd LJ rejected that application on the papers, giving clear reasons, on 27 July 2015.
+His reasons included this passage, quoted in para 14 of his judgment given on 21 October 2015: There is no explanation of how these sums will be funded.
+If [the appellants] are now contending that the imposition of the order would stifle the appeal, the evidence falls far short of showing that to be the case.
+It is well settled that a party who wishes so to contend must show that he has explored all means of providing the necessary security.
+Floyd LJ added that the appellants had a right to renew the application orally and that he would consider any further evidence that became available.
+Floyd LJ added in para 15 of his judgment on 21 October that he had hoped to make it clear by that set of reasons that the appellants appeared to be what he called shuffling around to a position where they were saying that the payment of the sums of money placed unacceptable strains on their ability to conduct business, so much so that it was an interference with their right to appeal that the order should be enforced in its full amount.
+They did not however take that step.
+In para 17 Floyd LJ said that on 19 October, which was two days earlier, the appellants did not deal with the previous history but served a witness statement with only one paragraph as follows: Board of Onur Air is of the opinion that this decision, [which Floyd LJ assumed was a reference to his order that the judgment sum be paid into court] is unlawful and against the principles laid down by the European Court of Human Rights.
+Therefore, the foresaid sum will not be paid.
+The striking feature of that statement is that Onur was not even then saying that payment of 3.4m (or the provision of security in lieu) would or might stifle the appeal.
+Reliance upon Onurs human rights was a wholly new point on the part of Onur.
+For various reasons which are not material to this appeal Floyd LJ said in para 20 that the whole history of the appeal was very unsatisfactory but that he was very reluctant to strike out an appeal for which permission has been given without giving the appellants one final chance of explaining the position.
+He added: If it is now their position that they are so inhibited by the order for payment of the judgment sum that it is stifling their ability to appeal, then they should say so.
+I appreciate that is not something which they have so far said.
+They have had ample opportunity, it might be said, to put forward every argument, but stifling of the appeal is one matter which they have thus far declined to put forward.
+It may be that they are embarrassed by what was apparently said to Rose J about the fact, as Mr Gurbuz said in evidence, that the company was of such a size that 5m was not a large sum of money.
+Whatever the reason for their silence, it seems to me that they ought to come forward with their evidence now.
+In order to give Onur one last chance Floyd LJ directed that any application for a final order on the appeal should be made on notice to the appellants and that appropriate opportunity should be given to both sides to file evidence in relation to it.
+He added that it may be that not much further evidence was required from the respondents but that he was very anxious that the appeal should not be disposed of without a proper application on notice for the precise order which Goldtrail now sought.
+The matter then came before Patten LJ, who gave judgment on 21 January 2016.
+There were before Patten LJ an application on the part of Goldtrail for an order dismissing the appeal and for orders for payment of the judgment sum and interest.
+That would of course involve a removal of the stay.
+Onur opposed those applications and issued a new application under CPR 3.1(7) for the variation of the 11 June order by removal of the condition requiring payment into court of the judgment sum.
+It did so, as Patten LJ put it in para 15, for the first time on the ground that the payment of that sum was now beyond the means of the company and its payment would stifle the appeal.
+Patten LJ considered first the application under CPR 3.1(7).
+I will do the same.
+Patten LJ considered the position in some detail between paras 16 et seq and concludes in para 21 that Onurs Chief Financial Officer said in a statement dated 8 January 2016 that there had been a net increase in current liabilities of US$10m and that the net forecast for 2015 was between US$15 and US$16.5 m, that Onurs shortfall remained serious and that this was being managed by postponing current debt.
+Patten LJ summarised the position thus in para 22: Ms Erguven says that Onur has been unable to negotiate extended finance from banks and that existing lenders have either frozen or closed existing facilities.
+In these circumstances, the company has no means to pay the judgment debt.
+One would expect that, in these circumstances, Onur would have been forced to cease trading but this is obviously not the case and the evidence indicates that the airline continues to operate in Europe and has entered into new contracts, for example, with Bulgarian Air.
+An analysis of the financial information carried out by the liquidators of Goldtrail and set out in the witness statement of Mr Oakley-Smith recognises the difficulties faced by Onurs business in the present climate but identifies a continuing source of funding from Mr Hamit Cankut Bagana who is the Chairman of Onur and its controlling shareholder.
+According to Ms Erguvens most recent witness statement, Mr Bagana has a direct shareholding of 3.67% of Onur but owns 81.19% of a company called Ten Tour Turizm Endustri ve Ticaret Anonim Sirket which in turn owns 92% of the shares in Onur.
+Patten LJ continued as follows: 23.
+The analysis carried out by Mr Oakley-Smith of the 2013 and 2014 accounts suggests that Mr Bagana is the primary source of funding for the company.
+His evidence at the trial before Rose J was that he paid 1m to Mr Aydin as part of the agreement with Onur.
+He lent the company $28m in 2013.
+In the 2014 accounts this is shown as having increased to $68m.
+As part of these arrangements, it appears that Onur has given guarantees to Mr Bagana in respect of debts due to him from one of the other shareholders although the reasons for this are not explained.
+Of more significance is that in the period from 2008 to 2011 substantial dividends were paid by Onur to Mr Bagana and then loaned back to the company and secured against its assets in subsequent years.
+Mr Bagana therefore appears to have removed equity from the company and to have used the money to establish himself as a secured creditor.
+His position as the companys largest single (and secured) creditor has put him into the position where he can effectively decide which of the unsecured debts should be paid and when.
+This is confirmed by Ms Erguven in her second witness statement where she says that: I can confirm that Mr Bagana is fully aware of the position that Onur Air finds itself in in relation to the payment of the Judgment Sum into court as a condition of the continuation of the Appeal.
+He has made it clear that he would only contemplate considering the possibility of advancing further amounts to Onur Air in the most exceptional circumstances if they were commercial payments strictly and immediately necessary in order to keep Onur Air in business due to the already significant indebtedness of the company to him and the deteriorating financial condition of the company.
+Mr Bagana has made it clear to the management of Onur Air that he believes that if the court were to strike out the appeal on the grounds that he, as a shareholder, had failed to lend money to Onur Air to enable it to pay the Judgment Sum into court, that would be a breach of his and Onur Airs rights under the European Convention of Human Rights.
+24.
+The liquidators evidence is that Mr Bagana is an extremely wealthy man who said to Rose J in his evidence that he did not regard 5m as a significant outlay for himself personally.
+Ms Erguvens response to this is that she is unable to comment on his alleged wealth and business activities.
+25.
+Some of the argument has centred on whether the financial information produced by Onur justifies its alleged belief that it is unable to pay the 3.64m and that, to be made to do so, would lead to the stifling of the appeal.
+Mr Gibbon cautioned me against attempting to second guess the assessment of the financial state and prospects of the company made by its own directors and officers and I am obviously alive to those difficulties.
+But even taking Ms Erguvens assessment at face value, it is apparent that a decision has been taken that Onur is able to continue to trade with the support of Mr Bagana and that it could, with that financial support, have made the 3.64m payment even if it would have been in difficulties in generating sufficient cash for that purpose from its trading activities.
+It seems clear to me that Mr Bagana has decided not to fund the payment by the company and if I can take his financial position into account in assessing Onurs ability to satisfy the condition either prior to 9 July 2015 or thereafter then the CPR 3.1 (7) application to vary cannot succeed.
+There is no evidential basis for concluding that the condition could not have been complied with or that, if complied with, it would stifle the appeal.
+26.
+Mr Gibbon submitted that it could only be in exceptional circumstances that the court would take into account on this kind of application the financial position of a third party such as Mr Bagana.
+To do so risks blurring the distinction between a company and its shareholders or other funders which the law habitually respects.
+But it is clear as a matter of authority that the ability of third parties to fund the company may be relevant in appropriate cases and that there is no jurisdictional bar to the court taking their position into account in determining whether an allegation of stifling has been made out.
+There is, I think, an obvious distinction between whether such a third party can be said to be under any sort of obligation as a result of an order made against the company and whether, in considering the likelihood of the company being able to make a potential payment, its access to third party funding should be taken into account.
+Patten LJ then referred to Socit Gnrale SA v Saad Trading, Contracting and Financial Services Co [2011] EWCA Civ 695 and to a decision of the Court of Appeal in Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065; [2002] CP Rep 21, where I gave the judgment of the court, which comprised myself and Wall J.
+In the light of the submissions in this case, I recognise that my formulation of the principles is not entirely accurate.
+The basic principle is that stated by Brandon LJ with the approval of Lord Diplock in M V Yorke Motors v Edwards [1982] 1 WLR 444 at 449H (as quoted by Lord Wilson): The fact that the man has no capital of his own does not mean that he cannot raise any capital; he may have friends, he may have business associates, he may have relatives, all of whom can help him in his hour of need.
+The cases show that in a case such as this the burden is on the person (or entity concerned) to show that he cannot find relevant capital to support him.
+Wilson in his para 21: In Hammond Suddard I tried to make that clear in para 41(3) quoted by Lord There is no convincing evidence that the appellant does not either have the resources or have access to resources which would enable it to pay the judgment debt and costs as ordered.
+I adhere to that principle.
+So the question here is whether Onur either has the resources or access to resources to pay the sum of 3.64m.
+The statements of principle which I recognise went too far are those referred to in my paras 41(4) and 43 as identified by Lord Wilson in his para 22 above.
+In para 41(4) I added, of the appellant: It has wealthy owners and there is no evidence that, if they were minded to do so, they could not pay the judgment debt, including the outstanding orders for costs.
+In similar vein I said this in para 43: Thus we see nothing unjust in providing the trust which owns the appellant with a choice.
+If it is in the interests of the appellant for the appeal to continue, the trust must procure the payment of the current orders.
+I am also of the view that, in so far as the Court of Appeal went further in Socit Gnrale SA v Saad Trading, Contracting and Financial Services Co [2012] EWCA Civ 695, it went too far.
+In short, where the relevant company does not have appropriate resources of its own and the question is whether it has access to the resources of others, the question is whether the company would (not could) have had access to the resources.
+The onus that it would not is on the company concerned.
+On the facts of this case, the question is whether Onur has shown on the balance of probabilities that it did not have access to the relevant resources.
+On the basis that the only resources available to Onur were through Mr Bagana, the question is whether, on the balance of probabilities he would have provided the funds.
+As I see it, the strength of Goldtrails case is this.
+Onur at no stage focused on this precise point.
+As Lord Carnwath puts it in para 48, there was no direct evidence from Mr Bagana on the point.
+In short, he does not address the question whether he would have declined to provide funds to Onur.
+Again, as Lord Carnwath puts it, the only relevant evidence on the point was that of Onurs Chief Financial Officer that Mr Bagana would contemplate making further loans to Onur but only in exceptional circumstances [to enable it to make] commercial payments necessary to keep [it] in business.
+I agree with Lord Carnwath that the evidence falls far short of establishing that the condition would in fact stifle the appeal.
+I would only add that there has been no suggestion until very recently that the condition would stifle the appeal and that the new aspect of Onurs case is not so I would dismiss the appeal.
+much that the appeal would be stifled as reliance on its human rights, which is not explained and is far-fetched in the extreme.
+I gratefully adopt Lord Wilsons exposition of the facts and of the law, which was in effect common ground by the end of the hearing.
+Although Patten LJ (faithfully applying the authorities binding on him) may have misstated the law in some respects, I agree with Lord Clarke that these were not ultimately material to his determination.
+In any event, where an error such as this may have occurred, particularly one resulting from previous case law binding on the lower courts, the interests of justice require us in my view to avoid adding unnecessarily to the delay and expense borne by the parties.
+Our rules do not require us to remit the case to the lower court if we are in as good a position to decide it ourselves.
+This in my view is such a case.
+All the evidence is before us.
+I strongly agree with Lord Wilson that the court should not take even an emphatic refutation by the company or the owner at face value.
+As he says: it should judge the probable availability of the funds by reference to the underlying realities of the companys financial position; and by reference to all aspects of its relationship with its owner.
+Applying that approach to the present case, particularly against the background described by Lord Clarke, I have no doubt that Patten LJ would have arrived at the same conclusion, and I would do the same.
+There was no direct evidence from Mr Bagana himself.
+Although Patten LJ accepted that he had decided not to fund the payment by Onur, I take that to be no more than his inference from its opposition to the order.
+There is no direct evidence of such a decision.
+The only relevant evidence was that of Onurs Chief Financial Officer that Mr Bagana would contemplate making further loans to Onur, but only in exceptional circumstances [to enable it to make] commercial payments necessary to keep [it] in business, and that he regarded the courts requirement of such support as infringing his human rights.
+The latter suggestion is of course nonsense, since there is no doubt as to his ability to fund the company if he wishes.
+As to why he does not regard the present case as sufficiently exceptional, there is no explanation.
+This in my view falls far short of proving, on the balance of probabilities, that the condition would in fact stifle the appeal.
+Lord Wilson does not suggest otherwise.
+In these circumstances, no other reason having been given for remitting the case, I would uphold Patten LJs order and dismiss the appeal.
diff --git a/UK-Abs/train-data/judgement/uksc-2016-0100.txt b/UK-Abs/train-data/judgement/uksc-2016-0100.txt
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+Under section 37 of the Solicitors Act 1974 the Law Society may make rules requiring solicitors to maintain professional indemnity insurance with authorised insurers and specifying the terms on which indemnity is to be available.
+As the House of Lords explained in Swain v Law Society [1983] AC 598, the power is intended to be for the protection of the public as well as the premium paying solicitor.
+The rules made by the Law Society require such insurance to satisfy certain Minimum Terms and Conditions (MTC).
+There is a prescribed minimum figure for which solicitors must be insured for any one claim, but clause 2.5 of the MTC permits the aggregation of claims in the following circumstances: The insurance may provide that, when considering what may be regarded as one Claim (a) one act or omission; all Claims against any one or more Insured arising from: (i) (ii) one series of related acts or omissions; (iii) matters or transactions; (iv) similar acts or omissions in a series of related matters or transactions the same act or omission in a series of related will be regarded as one Claim.
+Sub clauses (iii) and (iv) were added in 2005 in circumstances to which I will refer.
+The dispute in this appeal arises from sub clause (iv).
+More specifically, it is about the meaning of the expression related matters or transactions.
+The claims against the solicitors
+In 2013 two actions were begun in the Chancery Division (EWHC 13E01675 and EWHC 13C02077) against two now defunct firms of solicitors.
+One of the firms, the International Law Partnership LLP, was the successor in practice of the other, John Howell & Co. It is unnecessary for present purposes to distinguish between the two firms, and I will refer to them as the solicitors.
+The actions were brought by a total of 214 claimants.
+The claimants in 13E01675 were all investors in a project to develop holiday resorts on a plot near Izmir, Turkey, referred to as Peninsula Village.
+The claimants in 13C02077 were all investors in a similar project at Marrakech, Morocco.
+A certain number of investors in the Peninsula Village development subsequently transferred their investment to the Marrakech development because of planning delays.
+They have been referred to as the crossover investors.
+I will refer to the investors collectively as the investors or, where appropriate, as the Peninsula Village investors, the Marrakech investors or the crossover investors.
+The developers were a UK property company called Midas International Property Development Plc, which operated through subsidiary Midas companies for each development.
+The precise details of the companies interrelationship do not matter and I will refer to them as the developers.
+In 2004 they instructed the solicitors to devise a legal mechanism for the financing of foreign developments by private investors who would have security over the development land.
+The investments would take the form either of loans, at an attractive rate of interest, or of purchase of holiday properties.
+A trust was created for each development with the object of providing security for the investors.
+The solicitors were the initial trustees.
+The trust would either own or hold a charge over the development land as security for the amounts invested.
+The beneficiaries were the investors.
+The funds advanced by the investors would initially be held by the solicitors in an escrow account.
+They were not to be released to the developer unless and until the value of the assets held by the trust was sufficient to cover the investment to be protected, applying a cover test set out in the trust deed.
+As well as devising the scheme, the solicitors acted for the developers in relation to the individual investments.
+For each investment the solicitors would open a file, which would include a loan or purchase agreement between the investor and the developer and an escrow agreement between the investor, the developer and the solicitors.
+The developers signed an agreement for the purchase of the Peninsula Village site in April 2007.
+They did not enter into a similar agreement for the Marrakech site, but instead they entered into an agreement in November 2007 to buy the shares in the local company which owned it.
+The solicitors released tranches of Peninsula Village investment funds to the developers in April 2007 and October 2008.
+They released tranches of Marrakech investment funds on five occasions between November 2007 and March 2008.
+In May 2008 the Financial Services Authority prohibited the developers from receiving any further investment in relation to the developments.
+The developers were unable to complete either the purchase of the Peninsula Village site or the purchase of the shares in the company which owned the Marrakech site, and in November 2009 the developers were wound up.
+All the money in the escrow accounts had been paid out.
+The investors claims against the solicitors were put in various ways, alleging breach of contract, breach of trust, breach of fiduciary duty, misrepresentation and negligence, but the essence was that the solicitors failed properly to apply the cover test before releasing funds to the developers, with the result that the funds were released without adequate security.
+The claims were due to be tried in the next few months.
+The insurance action
+The solicitors had professional indemnity insurance with the appellant (the insurers) on terms corresponding with the MTC.
+The insurers liability is limited to 3m in respect of each claim.
+The investors claims in total amount to over 10m.
+In March 2014 the insurers issued proceedings against the solicitors in the Commercial Court for a declaration that the investors claims in the two Chancery Division actions are to be considered as a single claim under the MTC.
+The present trustees of the Peninsula Village and Marrakech trusts (the trustees) applied successfully to be joined in the proceedings as representatives of all the beneficiaries under each trust.
+The insurers case is that the investors claims against the solicitors all arise from similar acts or omissions in a series of related matters or transactions within the meaning of clause 2.5(a)(iv) and therefore there is an overall limit of indemnity of 3m.
+The trustees primary case is that none of the investors claims fall to be aggregated with those of any other investor.
+If that argument fails, their secondary case is that the Peninsula Village claims and the Marrakech claims cannot be aggregated with one another and so there are two available pots of indemnity.
+It was also the insurers alternative case that the claims could be aggregated by reference to the two developments.
+The case was tried by Teare J, whose judgment is reported at [2016] Lloyds Rep IR 147.
+He accepted that all the claims arose from similar acts or omissions, and that finding is not challenged in this court, but he rejected the argument that they were in a series of related matters or transactions.
+He interpreted those words as referring to transactions which were related in the sense that, by reason of their terms, they were conditional or dependent on each other.
+Since the transactions entered into between the developers and each investor were not mutually dependent, the claims of each investor did not fall to be aggregated with one another.
+The action was therefore dismissed.
+Teare J gave permission to appeal.
+The Court of Appeal ordered an expedited hearing, confined to issues of principle.
+The parties agreed a list of issues, the first of which was what is the true construction of the words in a series of related matters or transactions? The judgment of the Court of Appeal (Longmore, Kitchin and Vos LJJ) is reported at [2016] Lloyds Rep IR 289; [2017] 1 All ER 143.
+The court concluded that Teare J went too far in saying that the transactions had to be dependent on each other.
+It accepted a submission made by Mr David Edwards QC, appearing for the Law Society as an intervener, that there must be an intrinsic relationship between the transactions rather than a relationship with some outside connecting factor, even if that factor was common to the transactions.
+If the relevant transaction was the payment of money out of an escrow account, which should not have been paid out of that account, what would be intrinsic would depend on the circumstances of that payment.
+The court summarised its interpretation, at para 33, by saying that the true construction of the words in a series of matters or transactions is that the matters or transactions have to have an intrinsic relationship with each other, not an extrinsic relationship with a third factor.
+It allowed the appeal and remitted the action to the Commercial Court to determine in accordance with the guidance in its judgment.
+The insurers criticise the Court of Appeal for introducing an unwarranted qualification into the concept of related matters or transactions.
+Those words, they say, are unspecific as to the nature of the relationship, because the clause may fall to be applied in a huge variety of factual situations not capable of prediction; that its application requires an exercise of judgment tailored to assessing whether on the particular facts there is a substantial connection; and that it is wrong for the court to try to create a greater degree of certainty than the natural meaning of the words allows.
+The trustees and the Law Society support the Court of Appeals interpretation.
+Analysis
+Aggregation clauses have been a long standing feature of professional indemnity policies, and there have been many variants.
+Because such clauses have the capacity in some cases to operate in favour of the insurer (by capping the total sum insured), and in other cases to operate in favour of the insured (by capping the amount deductible per claim), they are not to be approached with a predisposition towards either a broad or a narrow interpretation.
+There is a further reason for adopting a neutral approach in the interpretation of the MTC.
+The Law Society is not in a position comparable to an insurer proffering an insurance policy.
+It is a regulator, setting the minimum terms of cover which firms of solicitors must maintain.
+In doing so it has to balance the need for reasonable protection of the public with considerations of the cost and availability of obtaining professional indemnity insurance.
+Clause 2.5 of the MTC authorises the aggregation of more than one claim when each claim arises from acts or omissions falling within any one of sub clauses (a)(i) to (iv).
+Sub clause (i) (one act or omission) requires no further explanation.
+Sub clause (ii) (one series of related acts or omissions) was interpreted in Lloyds TSB General Insurance Holdings Ltd v Lloyds Bank Group Insurance Co Ltd [2003] 4 All ER 43 by Lord Hoffmann as confined to acts or omissions which together resulted in each of the claims (para 27).
+Lord Hobhouse was prepared to go somewhat further by including the scenario of the misselling of a pension scheme, by means of the same misleading document, to a succession of people who brought a series of claims.
+The other three judges expressed no view on the point of difference between Lords Hoffmann and Hobhouse.
+In the light of that decision, and in response to market pressures by professional indemnity insurers, the Law Society amended clause 2.5 by adding sub clauses (iii) and (iv).
+But the point of difference between Lords Hoffmann and Hobhouse may not have been rendered academic, as I will explain.
+The additional sub clauses cover multiple claims arising from the same act or omission (sub clause (iii)), or similar acts or omissions (sub clause (iv)), subject to the important limitation that the setting of the act(s) or omission(s) giving rise to the claims was a series of related matters or transactions.
+Looking at the matter broadly, it is easy to see the reason for such a limitation.
+If insurers were permitted to aggregate all claims arising from repeated similar negligent acts or omissions arising in different settings, the scope for aggregation would be so wide as to be almost limitless.
+By requiring that the acts or omissions should have been in a series of related transactions, the scope for aggregation is confined to circumstances in which there is a real connection between the transactions in which they occurred, rather than merely a similarity in the type of act or omission.
+In the Lloyds TSB case emphasis was put on the importance of the particular language used in any aggregation clause to specify the factors permitting different claims to be treated as one.
+Individual words or phrases may not carry the same meaning in different clauses of different policies.
+Longmore LJ rightly said in the present case, at para 27, that the word related in the phrase a series of related matters or transactions (with which we are presently concerned) does not bear the same connotation as in the phrase related series of acts or omissions (with which the House of Lords was concerned in the Lloyds TSB case).
+Mr Edelman QC for the insurers accepted that for matters or transactions fairly to be described as related, there must be some identifiable substantive link or connection between them beyond mere similarity.
+But he criticised the Court of Appeals interpretation of the words a series of related matters or transactions as additionally requiring the matters or transactions to have an intrinsic relationship with each other, not an extrinsic relationship with a third factor.
+With respect to the Court of Appeal, I do not consider its formulation to be necessary or satisfactory.
+My difficulty is with the word intrinsic itself and what it means in this context.
+It is possible to describe things or people as having certain intrinsic qualities or characteristics, but it is a more elusive term when used as a descriptor of a relationship between two transactions.
+Take Lord Hobhouses example of a pension scheme missold to a group of investors in the same venture by use of the same document.
+On one interpretation of the Court of Appeals formula it could be said that there was no intrinsic relationship between the matters giving rise to the investors claims, because their only connection was an extrinsic relationship with the third party who sold the pension to all of them.
+If so, the addition of sub clauses (iii) and (iv) will not have helped to resolve the point of difference between Lords Hoffmann and Hobhouse; and if Lord Hoffmanns view is to be preferred, there would be no right to aggregate in such a case.
+It is hard to suppose that the Law Society so intended when it introduced the new sub clauses.
+Sub clause (iv) separates the requirement that the acts or omissions giving rise to the claims should be similar and the requirement that they were in a series of matters or transactions which were related.
+Each limb must be satisfied for the sub clause to apply.
+Use of the word related implies that there must be some inter connection between the matters or transactions, or in other words that they must in some way fit together, but the Law Society saw fit after market negotiation not to circumscribe the phrase a series of related matters or transactions by any particular criterion or set of criteria.
+The absence of further prescription is not particularly surprising, considering the very wide range of transactions which may involve solicitors providing professional services.
+Determining whether transactions are related is therefore an acutely fact sensitive exercise.
+To borrow the language of Rix LJ in Scott v Copenhagen Reinsurance Co (UK) Ltd [2003] Lloyds Rep IR 696, para 81, it involves an exercise of judgment, not a reformulation of the clause to be construed and applied.
+In considering the application of the phrase a series of related matters or transactions it is necessary to begin by identifying the (matters or) transactions.
+The Court of Appeal appears to have taken a narrow view of the transactions when it spoke, at para 19, of the relevant transaction being the payment of money out of an escrow account which should not have been paid out of that account.
+That was an act giving rise to a claim, but the act occurred in the course of a wider transaction.
+The transaction involved an investment in a particular development scheme under a contractual arrangement, of which the trust deed and escrow agreement were part and parcel, being the means designed to provide the investor with security for his investment.
+The transaction was principally bilateral, but it had an important trilateral component by reason of the solicitors role both as escrow agents and as trustees, and the trust deed created a multilateral element by reason of the investors being co beneficiaries.
+The transactions entered into by the Peninsula Village investors were connected in significant ways, and likewise the transactions entered into by the Marrakech investors.
+The members of each group were investing in a common development, for which the monies advanced by them were intended, in combination, to provide the developers with the necessary capital.
+Notwithstanding individual variations, they were all participants in what was in overall terms a standard scheme.
+They were co beneficiaries under a common trust.
+There was some debate about whether the question of the application of the aggregation clause was to be viewed from the perspective of the investors or the solicitors.
+The answer is that the application of the clause is to be judged not by looking at the transactions exclusively from the viewpoint of one party or another party, but objectively taking the transactions in the round.
+Viewed objectively, the connecting factors identified above drive me to the firm conclusion that the claims of each group of investors arise from acts or omissions in a series of related transactions.
+The transactions fitted together in that they shared the common underlying objective of the execution of a particular development project, and they also fitted together legally through the trusts under which the investors were co beneficiaries.
+The case for aggregating the claims of the Peninsula Village investors with those of the Marrakech investors is much weaker.
+They bear a striking similarity, but that is not enough.
+Once again, the proper starting point is to identify the relevant matters or transactions: see para 23 above.
+On the basis of that characterisation of the transactions, it is difficult to see in what way the transactions entered into by the members of the Peninsula Village group of investors were related to the transactions entered into by the members of the Marrakech group of investors, leaving aside for the moment the particular position of the crossover investors.
+Although the development companies were related, being members of the Midas group, and the legal structure of the development projects was similar, the development projects were separate and unconnected.
+They related to different sites, and the different groups of investors were protected by different deeds of trust over different assets.
+Accordingly, on the facts as they currently appear, the insurers have no right to aggregate the claims of the Peninsula Village investors with those of the Marrakech investors.
+In saying on the facts as they currently appear, I am conscious that although I have taken the facts from the agreed statement of facts and issues and the factual description in Teare Js judgment, which has not been challenged, the parties did not address the court fully on the facts and wished to reserve the opportunity of analysing them in greater detail if the case is remitted to the Commercial Court, as the Court of Appeal ordered.
+If any party wishes to argue that on fuller analysis of the facts, the characterisation of the transactions in this judgment is somehow defective, they should have that opportunity.
+Understandably, the parties did not go into detail about the position of the crossover investors, but each crossover investor entered into a new Marrakesh loan agreement and a new escrow agreement.
+I do not presently see that the fact that some investors agreed to switch their funds from one investment to the other has any bearing on the position of those who did not, but I do see that entering into one investment and then switching to another would obviously be related transactions.
+On the facts as they currently appear, the logical analysis would seem to be that any claim made by crossover investors in respect of the first transaction will fall to be aggregated with the claims of other members of that group of investors, and that any claim made by them in respect of the second transaction will fall to be aggregated with their first claim, but we heard no argument on the point.
+Disposal
+I would allow the appeal and either remit the case to the Commercial Court to determine in accordance with this judgment or order its transfer to the Chancery Division so that any outstanding matters can be dealt with by the judge who tries the investors claims against the solicitors.
+I see practical advantages in the second course but would invite the parties written submissions within 28 days.
+The trustees had a cross appeal against the Court of Appeals order on costs, but that is no longer relevant.
+The parties submissions on costs should also be made within 28 days.
diff --git a/UK-Abs/train-data/judgement/uksc-2016-0121.txt b/UK-Abs/train-data/judgement/uksc-2016-0121.txt
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@@ -0,0 +1,151 @@
+This case is about a credit reference negligently supplied by a bank for a person who subsequently defaulted.
+The facts are to that extent similar to those of Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465.
+But there is a critical difference.
+The reference was relied upon not by the party to whom it was addressed but by that partys undisclosed principal.
+The question at issue on this appeal is whether the bank is liable to the latter.
+In October 2010 Hassan Barakat wished to gamble at the London Playboy Club.
+He visited the club and applied for a cheque cashing facility for up to 800,000.
+Mr Barakat was a Lebanese resident and a well known figure at a casino in Lebanon.
+But he had only once played at the London club.
+Playboy Clubs policy for gamblers like him was to require a credit reference from his bankers for twice the amount of the facility, ie 1.6m.
+But in order to avoid disclosing the purpose of the credit facility, the Clubs practice was not itself to ask its customers bank for the reference.
+Instead, it arranged for an associated company called Burlington Street Services Ltd to do so without disclosing the purpose of the inquiry or the fact that the reference was required for the benefit of another company.
+Mr Barakat completed a written application for the cheque cashing facility, naming his bankers as Banca Nazionale del Lavoro in Reggio Emilia, Italy (BNL).
+A Status Enquiry Request was completed.
+It was written on Burlingtons printed letterhead and addressed to the relevant branch of BNL.
+The operative part of the request read: We request your opinion as to the means and standing of Hassan Barakat [details follow] and his/her trustworthiness to meet a financial commitment to the extent of 1,600,000 at any one time.
+Mr Barakat signed the form of authority at the foot of the printed form.
+The operative part of the authority was in the following terms: I, Hassan Barakat, hereby consent to BNL BNP Paribas Bank providing a reference on me to Burlington Services Ltd. The request was then sent to the Clubs bankers, National Westminster Bank, who forwarded it to BNL under cover of a letter beginning: We enclose a request on behalf of Burlington Street Services Ltd, who would be glad of your opinion on the character and standing of Hassan Barakat.
+The reply from BNL, faxed on 13 October 2010, was addressed to Burlington c/o National Westminster Bank.
+It confirmed that Mr Barakat had an account with them and that he was trustworthy up to 1,600,000 in any one week.
+It added: This information is given in strict confidential (sic).
+In reliance on the reference, the Club granted the cheque cashing facility on 13 October 2010 and shortly afterwards increased it to 1.25m.
+Over four days from 15 to 18 October Mr Barakat played at the club.
+He drew two cheques on BNL for a total of 1.25m in return for gaming chips of the same amount.
+His net winnings were 427,400, which the Club paid out to him.
+He then returned to Lebanon and was not seen again at the Club.
+Both cheques were returned unpaid.
+Including gaming duty, the Club suffered a total net loss of 802,940.
+It is common ground that BNL had no reasonable basis for their reference.
+It held no account for Mr Barakat until two days after the reference was sent, when an account was opened in his name which had a nil balance until it was closed on 14 December 2010.
+The Playboy Club, Burlington and another associated company subsequently began these proceedings against BNL.
+It is common ground that of the three claimants the Club is the only party with an interest, neither of the others having suffered any loss.
+The trial judge (His Honour Judge Mackie QC) said that BNL owed a duty of care in relation to its reference to the Club [2014] EWHC 2613 (QB).
+The Court of Appeal disagreed.
+They held that the only duty was owed to Burlington, to whom the reference was addressed [2016] 1 WLR 3169.
+The decision of the House of Lords in Hedley Byrne & Co Ltd v Heller & Partners Ltd was a landmark in the development of the law of tort.
+Contrary to the ordinary rule as it had previously been understood, it allowed the recovery of a purely economic loss in negligence where the existence of a special relationship between claimant and defendant made this appropriate.
+The facts were that Hedley Byrne asked its bank, National Provincial Bank, to obtain a credit reference for a company wishing to place advertising contracts through it.
+The companys bank, Heller & Partners, supplied the reference to National Provincial.
+The Appellate Committee inferred as a matter of fact that Heller & Partners must have appreciated that National Provincial was not acting for its own account but wanted the reference for a client intending to do business with Hellers client, even though they did not know who that client was: see, in particular, pp 482 (Lord Reid), 493 494 (Lord Morris of Borth y Gest), 530 (Lord Devlin).
+The ratio of the decision was that the reasonable reliance of Hedley Byrne on the reference, combined with Heller & Partners appreciation of the fact that they would reasonably rely on it, gave rise to a direct relationship between them involving a duty of care.
+All five members of the Appellate Committee gave reasoned judgments, but Lord Devlins analysis has generally been treated in the subsequent case law as most clearly expressing the reasoning.
+At pp 529 530, Lord Devlin, said this: I have had the advantage of reading all the opinions prepared by your Lordships and of studying the terms which your Lordships have framed by way of definition of the sort of relationship which gives rise to a responsibility towards those who act upon information or advice and so creates a duty of care towards them It is a responsibility that is voluntarily accepted or undertaken, either generally where a general relationship, such as that of solicitor and client or banker and customer, is created, or specifically in relation to a particular transaction.
+Responsibility can attach only to the single act, that is, the giving of the reference, and only if the doing of that act implied a voluntary undertaking to assume responsibility.
+This is a point of great importance because it is, as I understand it, the foundation for the ground on which in the end the House dismisses the appeal .
+I do not go further than this for two reasons.
+The first is that I have found in the speech of Lord Shaw in Nocton v Lord Ashburton and in the idea of a relationship that is equivalent to contract all that is necessary to cover the situation that arises in this case All that was lacking was formal consideration I shall therefore content myself with the proposition that wherever there is a relationship equivalent to contract, there is a duty of care.
+Such a relationship may be either general or particular.
+Examples of a general relationship are those of solicitor and client and of banker and customer There may well be others yet to be established.
+Where there is a general relationship of this sort, it is unnecessary to do more than prove its existence and the duty follows.
+Where, as in the present case, what is relied on is a particular relationship created ad hoc, it will be necessary to examine the particular facts to see whether there is an express or implied undertaking of responsibility.
+The principle thus established is capable of development.
+Indeed it has undergone considerable development since 1964, for example to cover omissions and the negligent performance of services.
+But these have been incremental changes within a consistent framework of principle.
+One area in which the courts have resisted expanding the scope of liability concerns the person or category of persons to whom the duty is owed.
+The defendants voluntary assumption of responsibility remains the foundation of this area of law, as this court recently confirmed after a full review of the later authorities in NRAM Ltd (formerly NRAM plc) v Steel [2018] 1 WLR 1190, paras 18 24 (Lord Wilson JSC).
+It is fundamental to this way of analysing the duty that the defendant is assuming a responsibility to an identifiable (although not necessarily identified) person or group of persons, and not to the world at large or to a wholly indeterminate group.
+In Caparo Industries plc v Dickman [1990] 2 AC 605, the Appellate Committee held that foreseeability, although it was a necessary condition for liability, was not necessarily a sufficient one.
+The foundation of the duty is proximity, which may require more than the mere foreseeability of reliance.
+The problem before the Appellate Committee was to identify the outer limits of the class of persons whose reliance on a statement could properly be said to give rise to a sufficiently proximate relationship.
+They found the relevant limiting factors in the defendants knowledge of (i) the person known to be likely to rely on the statement, and (ii) the transaction in respect of which he was known to be likely to rely on.
+After reviewing the authorities supporting a duty of care for negligent statements, both before and after Hedley Byrne, Lord Bridge (with whom Lord Roskill, Lord Ackner and Lord Oliver agreed), summarised the position as follows at pp 620 621: The salient feature of all these cases is that the defendant giving advice or information was fully aware of the nature of the transaction which the plaintiff had in contemplation, knew that the advice or information would be communicated to him directly or indirectly and knew that it was very likely that the plaintiff would rely on that advice or information in deciding whether or not to engage in the transaction in contemplation.
+In these circumstances the defendant could clearly be expected, subject always to the effect of any disclaimer of responsibility, specifically to anticipate that the plaintiff would rely on the advice or information given by the defendant for the very purpose for which he did in the event rely on it.
+So also the plaintiff, subject again to the effect of any disclaimer, would in that situation reasonably suppose that he was entitled to rely on the advice or information communicated to him for the very purpose for which he required it.
+The situation is entirely different where a statement is put into more or less general circulation and may foreseeably be relied on by strangers to the maker of the statement for any one of a variety of different purposes which the maker of the statement has no specific reason to anticipate.
+To hold the maker of the statement to be under a duty of care in respect of the accuracy of the statement to all and sundry for any purpose for which they may choose to rely on it is not only to subject him, in the classic words of Cardozo CJ to liability in an indeterminate amount for an indeterminate time to an indeterminate class: see Ultramares Corpn v Touche (1931) 174 N.E. 441, 444; it is also to confer on the world at large a quite unwarranted entitlement to appropriate for their own purposes the benefit of the expert knowledge or professional expertise attributed to the maker of the statement.
+Hence, looking only at the circumstances of these decided cases where a duty of care in respect of negligent statements has been held to exist, I should expect to find that the limit or control mechanism imposed upon the liability of a wrongdoer towards those who have suffered economic damage in consequence of his negligence rested in the necessity to prove, in this category of the tort of negligence, as an essential ingredient of the proximity between the plaintiff and the defendant, that the defendant knew that his statement would be communicated to the plaintiff, either as an individual or as a member of an identifiable class, specifically in connection with a particular transaction or transactions of a particular kind (eg in a prospectus inviting investment) and that the plaintiff would be very likely to rely on it for the purpose of deciding whether or not to enter upon that transaction or upon a transaction of that kind.
+In support of that analysis, Lord Bridge adopted the celebrated dissenting judgment of Denning LJ in Candler v Crane, Christmas & Co [1951] 2 KB 164 on the persons to whom an auditor owed a duty of care in respect of his audit report.
+At pp 180, 182, 184, Denning LJ had said: To whom do these professional people owe this duty? I will take accountants, but the same reasoning applies to the others.
+They owe the duty, of course, to their employer or client; and also I think to any third person to whom they themselves show the accounts, or to whom they know their employer is going to show the accounts, so as to induce him to invest money or take some other action on them.
+But I do not think the duty can be extended still further so as to include strangers of whom they have heard nothing and to whom their employer without their knowledge may choose to show their accounts.
+Once the accountants have handed their accounts to their employer they are not, as a rule, responsible for what he does with them without their knowledge or consent The test of proximity in these cases is: did the accountants know that the accounts were required for submission to the plaintiff and use by him? To what transactions does the duty of care extend? It extends, I think, only to those transactions for which the accountants knew their accounts were required My conclusion is that a duty to use care in statement is recognised by English law, and that its recognition does not create any dangerous precedent when it is remembered that it is limited in respect of the persons by whom and to whom it is owed and the transactions to which it applies.
+In his concurring judgment, Lord Oliver, at p 638, identified the circumstances in which a duty of care may typically be held to exist as follows: (1) the advice is required for a purpose, whether particularly specified or generally described, which is made known, either actually or inferentially, to the adviser at the time when the advice is given; (2) the adviser knows, either actually or inferentially, that his advice will be communicated to the advisee, either specifically or as a member of an ascertainable class, in order that it should be used by the advisee for that purpose; (3) it is known either actually or inferentially, that the advice so communicated is likely to be acted upon by the advisee for that purpose without independent inquiry, and (4) it is so acted upon by the advisee to his detriment.
+The defendants knowledge of the transaction in respect of which the statement is made is potentially relevant for three purposes: (i) to identify some specific person or group of persons to whom he can be said to assume responsibility; (ii) to demonstrate that the claimants reliance on the statement will be financially significant; and (iii) to limit the degree of responsibility which the defendant is taken to assume if no financial limit is expressly mentioned.
+We are presently concerned with its significance for the first of these purposes, which will vary according to what is known about the person or group expected to rely on the statement.
+Thus in Hedley Byrne itself, the defendant understood that the statement would be relied on by the unidentified, but readily identifiable, client on whose behalf National Provincial Bank was known to be making the inquiry.
+It was enough that the proposed transaction was said to be an advertising contract for 8,000 to 9,000.
+It would probably have been enough even if the transaction had not been identified as an advertising contract but simply as some kind of business transaction.
+For Lord Morris, for example, it was enough that the person contemplated was some one who was contemplating doing business with Easipower Ltd: see pp 493 494.
+In Caparo on the other hand, where the persons said to have been entitled to rely on the defendants audit report were any potential bidder for the auditors client, the absence of a specific transaction in the defendants contemplation assumed decisive significance.
+Mr Salzedo QC, who appeared for the Playboy Club, accepted that there was no evidence that BNL knew that its reference would be communicated to or relied on by anyone other than Burlington.
+He also accepted that in the ordinary course where a statement is relied upon by B to whom A has passed it on, the representor owes no duty to B unless he knew that the statement was likely to be communicated to B.
+That concession was plainly justified.
+I would go further and say that the representor must not only know that the statement is likely to be communicated to and relied upon by B. It must also be part of the statements known purpose that it should be communicated and relied upon by B, if the representor is to be taken to assume responsibility to B. Mr Salzedos submission was that the present case was different because the Club was Burlingtons undisclosed principal.
+He submitted that the relationship between BNL and the Club was, in Lord Devlins phrase, equivalent to contract because in contract the Club would have been entitled to declare itself and assume the benefit of the contract.
+This is an ingenious argument, but in my opinion it is fallacious.
+The rule of English law that an undisclosed principal may declare himself and enter upon a contract is an anomalous legacy of eighteenth and nineteenth century jurisprudence, which survives in the modern law on account of its antiquity rather than its coherence.
+The law on the point was summarised by Lord Lloyd of Berwick in Siu Yin Kwan v Eastern Insurance Co Ltd [1994] 2 AC 199, 207: (1) An undisclosed principal may sue and be sued on a contract made by an agent on his behalf, acting within the scope of his actual authority. (2) In entering into the contract, the agent must intend to act on the principals behalf. (3) The agent of an undisclosed principal may also sue and be sued on the contract. (4) Any defence which the third party may have against the agent is available against his principal. (5) The terms of the contract may, expressly or by implication, exclude the principals right to sue, and his liability to be sued.
+To this I would add that the third party must irrevocably elect whether to sue the agent or the undisclosed principal.
+The first problem about the appellants argument is that it assumes that because a relationship equivalent to contract is generally sufficiently proximate to found a duty of care, it must follow that the legal incidents of a contractual relationship are imported into it.
+This is a non sequitur.
+The expression equivalent to contract originates in the speech of Lord Shaw in Nocton v Lord Ashburton [1914] AC 932, 971 972.
+He used it to describe any kind of relationship which gave rise to a duty to give information or advice, and hence to liability for giving it negligently.
+The phrase was adopted by Lord Devlin in Hedley Byrne, at pp 528 529, and has passed into common currency: see in particular Smith v Bush [1990] 1 AC 831, 846 (Lord Templeman), Henderson v Merrett Syndicates Ltd [1995] 2 AC 145, 181 (Lord Goff), Spring v Guardian Assurance plc [1995] 2 AC 296, 324 (Lord Goff).
+It serves (i) as an allegory of proximity, to describe a case where a service is performed for a person pursuant to a relationship which would be contractual if there were consideration passing from that person; and (ii) as an explanation of why it is appropriate to award a purely economic loss as damages for negligence in the course of such a relationship.
+But it does not follow from the fact that a non contractual relationship between two parties is as proximate as a contractual relationship, that it is legally the same as a contractual relationship or involves all of the same legal incidents.
+Secondly, the relationship between a person dealing with another and the latters undisclosed principal is not at all analogous to the kind of relationship which will give rise to a duty of care.
+Whether a relationship is sufficiently proximate to give rise to a duty of care is essentially a question of fact from which the law draws certain conclusions.
+The liability of a contracting party to his counterpartys undisclosed principal, however, is not a legal conclusion from any factual relationship between them.
+It is a purely legal construct.
+The whole point about the law relating to undisclosed principals is that a person may be brought into contractual relations with some one with whom he has no factual relationship at all.
+As Lord Lloyd of Berwick observed in Siu Yin Kwan v Eastern Insurance Co Ltd [1994] 2 AC 199, 207F G, the doctrine runs counter to fundamental principles of privity of contract.
+Such a relationship is by definition not proximate.
+Nor is it in any relevant sense voluntary or consensual so as to give rise to an assumption of responsibility.
+It has none of the features which were held in Caparo to be necessary to bring the claimant into proximity with the defendant.
+Thirdly, the appellants submission would require one to import into the law of tort just one aspect of the law relating to undisclosed principals.
+But in fact the law in this area is a complex bundle of interrelated rights and liabilities most of which are entirely inapposite to the law of tort.
+The relationship between A and Bs undisclosed principal may not be consensual, but it is at least mutual.
+The I would dismiss the appeal. undisclosed principal may not only sue but be sued on the contract.
+A may elect to sue the agent.
+If A is sued by the undisclosed principal, he may take any defences which would have been available to him as against B. But in the absence of a true contract there would be no corresponding mutuality in tort.
+It is impossible to feel much sympathy for BNL given the circumstances in which they came to give a favourable credit reference for some one with whom they appear to have had no relevant dealings.
+But they had no reason to suppose that Burlington was acting for some one else, and they knew nothing of the Playboy Club.
+In those circumstances, it is plain that they did not voluntarily assume any responsibility to the Club.
+It may well be, since they knew nothing of Burlington either, that they were indifferent to whom they were dealing with.
+But the fact that a representor may have been equally willing to assume a duty to some one else does not mean that he can be treated as if he had done so.
+LORD MANCE:
+I agree with the judgment which has been prepared by Lord Sumption.
+But one can, as he observes in para 16, have little sympathy for BNL; and the Club has suffered significant loss in undoubted reliance on BNLs negligent misrepresentation of Mr Barakats trustworthiness.
+In these circumstances, I think that there are one or two points worth examining further in order to identify precisely why the Clubs claim nevertheless fails.
+BNL was prepared to make an unconditional representation of credit worthiness without knowing anything about Burlington Street Services Ltd (Burlington).
+And all it knew about the context was, in Burlingtons words, that Burlington was seeking its opinion as to the means and standing of Hassan Barakat and his trustworthiness to meet a financial commitment to the extent of [1.6m] at any one time, or, in the words of NatWest, passing on Burlingtons request, its opinion of the character and standing of Hassan Barakat and trustworthiness in the way of business to the extent of [1.6m] at any one time.
+In response, BNL, without further enquiry, represented that Mr Barakat was trustworthy to the extent of 1.6m in any one week, adding This information is given in strict confidential [sic].
+Passages can be found in authority where courts have used language suggesting that, for a duty of care to arise in tort in respect of a representation, (a) not only must the claimant be a specific person or within a group to whom responsibility may be said to have been undertaken, but (b) the purpose for which the representation is required must be specifically in connection with a particular transaction or transactions of a particular kind or must, whether particularly specified or generally described, be made known, either actually or inferentially, to the representor: see eg per Lord Bridge and Lord Oliver in Caparo Industries plc v Dickman [1990] 2 AC 605, 620 621 and 638, cited by Lord Sumption in his paras 8 and 9.
+BNL has argued that the Clubs claim must fail because it satisfies neither of the elements (a) and (b) suggested by these passages.
+The Court of Appeal [2016] 1 WLR 3169 focused on element (a), although two sentences in para 19 of Longmore LJs judgment may also indicate that the Court saw the claim as failing because neither element was satisfied.
+Longmore LJ said in particular: In the present case the customer was identified by name as Burlington and the true purpose of the reference (for a gambling club) was not revealed.
+In these circumstances there cannot, to my mind, be an assumption of responsibility to the Club (rather than to Burlington) or indeed a responsibility for its use by the Club in trusting Mr Barakat in his gambling activities (a purpose of which the Bank was unaware).
+I do not consider that this claim should fail for want of communication of the purpose or kind of purpose for which an assessment of trustworthiness was required.
+Had Burlington been the operator of the gambling club and suffered the loss, it should have succeeded.
+On the face of it, BNL was prepared, without further enquiry, to take the open risk of exposure to the tune of up to 1.6m in any one week whatever financial commitment or business to that tune was intended.
+There is no reason in principle why a duty of care should not arise in relation to so unspecific a purpose, provided (as is here clear) that the representation was requested and given in terms showing that it was intended to be and would be relied on.
+The decision in Caparo does not exclude liability on this basis.
+Caparo turned on the statutory purpose of an audit being to enable shareholders to exercise their class rights in general meeting, rather than to enable individual shareholders to buy more shares in the company (unless of course the auditors specifically agreed to extend the use of their audit report to such a use).
+The only contrary argument regarding purpose has to be that gambling is so unusual and risky a financial commitment in Burlingtons terms, or business in NatWests terms, that it must be excluded from what was objectively and reasonably covered by the representation sought and made.
+But many other high risk businesses other than gambling can be contemplated, eg trading in derivatives or on margin.
+BNL was evidently prepared to take the risk of all or any of these.
+So I would not be inclined to accept that argument, in a context where the bank showed absolutely no interest in the nature of the proposed commitment(s) or the level of risk involved.
+I would therefore dismiss the claim only because element (a) is not satisfied.
+The representation was directed simply and solely to Burlington.
+It is true that, so far as appears, BNL was probably as uninterested in Burlington and its identity as it was in the nature and purpose of the intended financial commitment.
+But the representation was, objectively, requested by Burlington alone and, objectively, confined in its making to Burlington.
+To my mind, this consideration is strengthened by the notation This information is given in strict confidential in BNLs representation mail.
+Had the representation been made, expressly or impliedly, for the benefit of an unnamed (rather than an entirely undisclosed) principal or client of Burlington, the case would have paralleled Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, and the claim should then have succeeded.
+Had it been made, expressly or impliedly, for the benefit of any principal or client of Burlington, to which Burlington might make it available, the same would have applied.
+BNL would then have undertaken an open exposure, as it did in my view in relation to the purpose for which the representation as to trustworthiness was sought.
+I agree with Lord Sumptions disposal of the ingenious and well presented submission that, as the Club could have intervened to rely on the representation had consideration been furnished for it to BNL, so the Court should recognise the existence for tortious purposes of a relationship akin to contract, in the absence of any consideration.
+The right of an undisclosed principal to intervene in contract is not easy to rationalise, but it does not rest or bear on proximity for tortious purposes.
+It is true that it follows from this that contributory fault will not be available as a response to a claim by an undisclosed principal relying on a representation for which consideration has been given since there will be no concurrency of contractual and tortious liability: see Vesta v Butcher [1989] AC 852, CA.
+But the oddity here is again, if anything, the existence of the right to intervene, or the limitations of the Law Reform (Contributory Negligence) Act 1945, not the absence of a relationship of duty of care.
+For these reasons, additional to those given by Lord Sumption, and tempting though the thought is that BNL is very lucky to avoid liability to the Club, I agree that the appeal falls to be dismissed.
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+Part 4 of the Proceeds of Crime Act 2002 deals with the circumstances where benefits obtained by persons in Northern Ireland by their criminal activity can be confiscated.
+By virtue of article 2 of and the Schedule to the Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, Savings and Amendment) Order 2003, Part 4 of the Act came into force on 24 March 2003.
+The first and central provision in Part 4 of the Act is section 156.
+That section is declared in the statute to be concerned with the making of confiscation orders.
+Subsection (1) of section 156 expressly requires that the Crown Court must proceed in accordance with the terms of the section, where two conditions are satisfied.
+The context for the way in which confiscation orders are to be applied for and obtained is therefore set.
+That context, in my view, is defined by the consideration that it is confined to confiscation orders which can be made under the Act.
+The relevant statutory provisions
+Subsections (2) and (3) of section 156 set out the two conditions foreshadowed in subsection 1.
+The first of these is that the defendant against whom a confiscation order is sought must either have been convicted of an offence or offences before the Crown Court or have been committed to the Crown Court in respect of an offence under section 218.
+There is an important rider to, or explanation of, the latter of these conditions.
+It is to the effect that the committal should have been with a view to a confiscation order being considered.
+This reinforces the nature of the context in which these provisions fall to be considered.
+The purpose of the committal is to deal with confiscation orders that might be made under the 2002 Act.
+The terms of section 218(1) again emphasise this essential aspect.
+Subsection (1)(b) makes clear that committal should take place when the prosecutor asks the court to commit the defendant to the Crown Court with a view to a confiscation order being considered under section 156.
+Thus, under this provision, the court is principally concerned with the making of a confiscation order under the 2002 Act.
+The magistrates court must commit the defendant to the Crown Court if requested to do so section 218(2)(a).
+But it may also, under section 218(2)(b), commit him in respect of other offences falling within subsection (3).
+Offences falling within the latter subsection are those of which the defendant has been convicted by the magistrates or other court and where the magistrates court has the power to deal with them.
+Thus, offences in respect of which it is not proposed to seek a confiscation order may be referred to the Crown Court.
+It is not difficult to deduce the reason for that.
+It would not be unusual for a defendant to be charged with a number of offences, only some of which would qualify for applications for a confiscation order.
+For administrative convenience, and to avoid the possibility of over penalisation, it may be considered prudent to commit the defendant to the Crown Court for a comprehensive sentencing exercise.
+The section 218(2) distinction between the two categories of case which the magistrates court may commit to the Crown Court is significant: those offences which are committed so that a confiscation order can be considered and other offences in which the question of a confiscation order does not arise.
+The important theme, in relation to this case, is that the first category relates to offences in respect of which a confiscation order can be made under the Act.
+This reflects the general, underlying purpose of the legislation, so far as concerns confiscation orders.
+It is that, in the first and principal instance, the cases which are to be dealt with by the Crown Court are those in respect of which a confiscation order under the 2002 Act can be made.
+The provision that a second type of case (the other offences category) can also be committed serves to demonstrate that the primary purpose of the Crown Court in dealing with cases emanating from the magistrates court is to make confiscation orders which can be made under the Act.
+Returning to section 156, the second condition which forms part of the enjoinder to the Crown Court to act is provided for in subsection (3).
+That condition is fulfilled where the prosecutor asks the court to proceed under the section or the court considers it is appropriate to do so.
+Both these alternatives are obviously geared to the making of confiscation orders that can be made under the Act.
+The theme of facilitating or requiring the making of confiscation orders under the 2002 Act is again apparent from subsection (4) of section 156.
+The court is required to consider whether the defendant has a criminal lifestyle by subsection (4)(a) and, if it so decides, it must determine whether he has benefited from his general criminal conduct under subsection (4)(b).
+If the court decides that the defendant does not have a criminal lifestyle, it must consider whether he has benefited from particular criminal conduct section 156(4)(c).
+All of these provisions have as their ultimate aim the ascertainment of whether a confiscation order under the Act is appropriate.
+That basic objective is evident from the succeeding subsections (5) to (8) of section 156.
+These do not require to be set out, but subsection (9) is material for other reasons.
+It provides: References in this Part to the offence (or offences) concerned are to the offence (or offences) mentioned in subsection (2).
+Drawing on the language used in this subsection and an allied provision, section 236(1), it is argued that the phrase, the offence (or offences) concerned is given a fixed and immutable meaning throughout the Act. (Section 236(1) provides that a reference to the offence (or offences) concerned must be construed in accordance with section 156(9)).
+Guidance as to that meaning is provided, it is suggested, by article 4 of the Commencement Order which provides: Transitional provisions relating to confiscation orders Northern Ireland 4(1) Section 156 of the Act (making of confiscation order) shall not have effect where the offence, or any of the offences, mentioned in section 156(2) was committed before 24 March 2003.
+In particular, the use of the words, any of the offences in article 4 is said to indicate that, if any of the offences on which a defendant has been committed pre date 24 March 2003, none of the offences, even those which were committed after that date can be treated as candidates for confiscation orders under the 2002 Act but must be dealt with under legislation which applied on the date when the first offence occurred.
+To say that this would produce a wholly anomalous result is not an exaggeration.
+This is particularly so since it is accepted by the appellants that, if the prosecution elects not to have a defendant committed to the Crown Court on a charge which might have warranted a confiscation order in respect of an offence committed before March 2003, and has the defendant committed only on offences committed after that date, it would be open to the Crown Court to make confiscation orders under the 2002 Act in respect of those offences.
+Likewise, it is accepted that in a case which starts in the Crown Court, if the prosecution chooses not to proceed on a charge relating to an offence committed before March 2003, a confiscation order may be made in relation to offences that occurred after 24 March 2003.
+In effect, therefore, the appellants accept that the jurisdiction of the court to make confiscation orders under the 2002 Act could be controlled by tactical decisions by the prosecution.
+Ironically, the appellants object to what they portray as the election of the prosecution to proceed under the 2002 Act and to ignore offences to which they had pleaded guilty and which occurred before the relevant date, when pre and post 24 March offences are proceeded with on the same indictment.
+They suggest that, in those circumstances, the prosecution should not be permitted to choose only the post March offences on which to seek compensation orders.
+The respondents riposte to this argument is, of course, that this is not a matter of election or choice.
+It submits that only offences which can be dealt with under the Act qualify for consideration as confiscation offences.
+It is therefore not a matter of tactical decision by the prosecution but, rather, the consequence of the correct construction of section 156.
+The appellants counter this argument by pointing to, among other provisions, section 224(3)(b) of the Act.
+As noted at para 8 above, the court is required to consider whether the defendant has a criminal lifestyle by subsection (4)(a) of section 156.
+If it decides that the defendant does not have a criminal lifestyle, it must consider whether he has benefited from particular criminal conduct section 156(4)(c).
+Section 224 deals with criminal conduct and benefit.
+Subsection (1) provides: Criminal conduct is conduct which constitutes an offence in Northern Ireland, or (a) (b) would constitute such an offence if it occurred in Northern Ireland.
+A distinction is made between general criminal conduct and particular criminal conduct.
+General criminal conduct is dealt with in subsection (2).
+Particular criminal conduct is the species of criminality involved in this case and it is provided for in subsection (3): (3) Particular criminal conduct of the defendant is all his criminal conduct which falls within the following paragraphs conduct which constitutes the offence or offences (a) concerned; (b) conduct which constitutes offences of which he was convicted in the same proceedings as those in which he was convicted of the offence or offences concerned; (c) conduct which constitutes offences which the court will be taking into consideration in deciding his sentence for the offence or offences concerned.
+The appellants argue that if the rubric, the offence or offences concerned, is given the interpretation advanced by the respondent, viz offences in respect of which confiscation orders could be made, it is clear from the terms of section 224(3)(b) that the court considering the defendants particular criminal conduct must have regard to offences which lie outside that definition, in other words, offences that were committed before 24 March 2003.
+This, say the appellants, makes the respondents interpretation unworkable.
+Despite its initial attraction, I do not accept the appellants argument on this point.
+The overarching consideration is that, plainly, it was Parliaments intention that offences which were committed before 24 March 2003 should not be included in the section 156 consideration.
+It was also Parliaments intention, in my opinion, that all offences committed after that date which could generate confiscation orders under the Act should be dealt with under section 156.
+It cannot have been intended that a swathe of post 2003 offences should be removed from the Acts purview simply because the defendant was convicted of an associated offence before the relevant date.
+If that was found to be the effect of the Act, it seems to me to be beyond question that this was a wholly unintended effect.
+In these circumstances, the proper approach to interpretation is to determine whether it is possible to give effect to Parliaments intention, notwithstanding the apparent incongruity of section 224(3)(b).
+I will explain why this is the correct way to interpret the 2002 Act in the next section of this judgment.
+In the meantime, however, it appears to me that subsection (3)(b) is explicable on the basis that the criminal conduct which the court may take into account under this provision is conduct on which a confiscation order might have been made under the 2002 Act but which has not been put forward by the prosecution as a potentially qualifying offence.
+That view is supported by a consideration of article 8 of the Commencement Order in its amended form which deals with the approach that the court should take in relation to the ascertainment of whether a defendant has a criminal lifestyle.
+Although the present case does not involve that question, it is argued that the amendments effected by the Order of 6 March 2003 provide an insight into the issue whether the 2002 Act can apply to offences committed after 24 March 2003, where the defendant has also been convicted of offences committed before that date.
+First it is necessary to set out the relevant provisions in section 223 of the Act.
+So far as material, it provides: 223 Criminal lifestyle (1) A defendant has a criminal lifestyle if (and only if) the following condition is satisfied. (2) The condition is that the offence (or any of the offences) concerned satisfies any of these tests it is specified in Schedule 5; it constitutes conduct forming part of a course of (a) (b) criminal activity; it is an offence committed over a period of at least (c) six months and the defendant has benefited from the conduct which constitutes the offence. (3) Conduct forms part of a course of criminal activity if the defendant has benefited from the conduct and in the proceedings in which he was convicted he (a) was convicted of three or more other offences, each of three or more of them constituting conduct from which he has benefited, or (b) in the period of six years ending with the day when those proceedings were started (or, if there is more than one such day, the earliest day) he was convicted on at least two separate occasions of an offence constituting conduct from which he has benefited.
+In order to set in context the argument in relation to article 8 in its original and amended form, it is necessary to set out both.
+In its first incarnation, article 8 provided: Transitional provisions relating to criminal lifestyle Northern Ireland 8.(1) This article applies where the court is determining under section 156(4)(a) of the Act whether the defendant has a criminal lifestyle. (2) The tests in section 223(2)(a) and (c) of the Act shall not be satisfied where the offence (or any of the offences) concerned was committed before 24 March 2003.
+In applying the rule in section 223(5) of the Act on the (3) calculation of relevant benefit for the purposes of section 223(2)(b) and (4) of the Act, the court must not take into account benefit from conduct constituting an offence which was committed before 24 March 2003. (4) Conduct shall not form part of a course of criminal activity under section 223(3)(a) of the Act where the offence (or any of the offences) concerned; or (a) (b) any one of the three or more offences mentioned in section 223(3)(a), was committed before 24 March 2003. (5) Conduct shall form part of a course of criminal activity under section 223(3)(b) of the Act, notwithstanding that any of the offences of which the defendant was convicted on at least two separate occasions in the period mentioned in section 223(3)(b) was committed before 24 March 2003.
+Two weeks after its promulgation on 20 February 2003, the Commencement Order was amended in order to substitute (so far as concerns Northern Ireland) a new article 8.
+It was in the following terms: Transitional provisions relating to criminal lifestyle Northern Ireland 8.(1) This article applies where the court is determining under section 156(4)(a) of the Act whether the defendant has a criminal lifestyle. (2) Conduct shall not form part of a course of criminal activity under section 223(3)(a) of the Act where any of the three or more offences mentioned in section 223(3)(a) was committed before 24 March 2003. (3) Where the court is applying the rule in section 223(5) of the Act on the calculation of relevant benefit for the purposes of determining whether or not the test in section 223(2)(b) of the Act is satisfied by virtue of conduct forming part of a course of criminal activity under section 223(3)(a) of the Act, the court must not take into account benefit from conduct constituting an offence mentioned in section 223(5)(c) of the Act which was committed before 24 March 2003. (4) Conduct shall form part of a course of criminal activity under section 223(3)(b) of the Act, notwithstanding that any of the offences of which the defendant was convicted on at least two separate occasions in the period mentioned in section 223(3)(b) were committed before 24 March 2003. (5) Where the court is applying the rule in section 223(5) of the Act on the calculation of relevant benefit for the purposes of determining whether or not the test in section 223(2)(b) of the Act is satisfied by virtue of conduct forming part of a course of criminal activity under section 223(3)(b) of the Act, the court may take into account benefit from conduct constituting an offence committed before 24 March 2003. (6) Where the court is applying the rule in section 223(6) of the Act on the calculation of relevant benefit for the purposes of determining whether or not the test in section 223(2)(c) of the Act is satisfied, the court must not take into account benefit from conduct constituting an offence mentioned in section 223(6)(b) of the Act which was committed before 24 March 2003.
+If the appellants argument that any proceedings which involved a pre March 2003 offence would have to be brought under a statutory regime existing before the 2002 Act was correct, the new article 8(2) (and, for that matter, the original article 8(4)) would not be required.
+Article 8(3) is also significant.
+This requires that a court, which is assessing benefit under section 223(5) for the purposes of determining whether or not the test set out in section 223(2)(b) of the Act is satisfied, must leave out of account benefit from an offence committed before 24 March 2003.
+That stipulation again serves to illustrate the ending of the application of pre March 2003 legislation for those purposes and the currency of the 2002 Act for offences committed after that date.
+The proper approach to interpretation
+As I have said, it is my opinion that Parliament cannot have intended that a potentially extremely wide range of post 2003 offences would be excluded from the ambit of the 2002 Act.
+That would produce a result which would be plainly at odds with the entire scheme of the legislation.
+It is, of course, possible to regard section 156 as an open and simple gateway and that, on a literal interpretation, every offence of which the defendant is convicted, whether or not it preceded March 2003, must be considered.
+But the absurd outcome which this would produce is a strong indication against treating the section in that way.
+author describes as the Code, the following statements are made: In Bennion on Statutory Interpretation (6th ed) at section 312 of what the (1) The court seeks to avoid a construction that produces an absurd result, since this is unlikely to have been intended by Parliament.
+Here the courts give a very wide meaning to the concept of absurdity, using it to include virtually any result which is unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial, or productive of a disproportionate counter mischief. (2) In rare cases, there are overriding reasons for applying a construction that produces an absurd result, for example where it appears that Parliament really intended it or the literal meaning is too strong.
+Bennion suggests that the courts have been prepared to give the concept of absurdity an expansive reach.
+In support of that view, he cites Lord Millett in R (Edison First Power Ltd) v Central Valuation Officer [2003] UKHL 20, [2003] 4 All ER 209 at paras 116 and 117, where he said: The courts will presume that Parliament did not intend a statute to have consequences which are objectionable or undesirable; or absurd; or unworkable or impracticable; or merely inconvenient; or anomalous or illogical; or futile or pointless.
+But the strength of these presumptions depends on the degree to which a particular construction produces an unreasonable result.
+The more unreasonable a result, the less likely it is that Parliament intended it .
+See also Lord Scott of Foscotes approval of this dictum in Gumbs v Attorney General of Anguilla [2009] UKPC 27, para 44.
+The consequence of the 2002 Act being disapplied to a wide array of offences committed after the operative date of 24 March 2003, and requiring these to be dealt with under 1996 (or even, in the case of Ms McCool, 1990) legislation, is self evidently objectionable and undesirable.
+It means that contemporary cases would have to be dealt with according to standards and rules which have been replaced by the 2002 Act and secondary legislation made on foot of it.
+I consider, therefore, that if there is a workable interpretation of the legislation which allows post 2003 offences to be dealt with under the 2002 Act, even when those are associated with pre 2003 offences, that interpretation should be adopted.
+For the reasons given earlier, I think that such an interpretation is entirely feasible and that the 2002 Act was correctly applied to the appellants cases.
+I will discuss the facts of the appellants offences and the reasons that I consider that they were properly subject to confiscation orders under the 2002 Act later in this judgment.
+Ahmed, Martin, Simpson, Aslam and Stapleton
+The Court of Appeal in this case considered a number of authorities in which transitional provisions in similar terms to those involved in the present appeal were examined.
+The first of these was R v Ahmed (Court of Appeal, Criminal Division, unreported 8 February 2000).
+In that case, the appellant had pleaded guilty to three offences of conspiracy to defraud by inflating invoices for goods supplied.
+The first of those offences took place at a time between January 1995 and October 2006; the second between January 1995 and June 2007; and the third between January 1997 and 30 November 2007.
+Section 16(5) of the Proceeds of Crime Act 1995, which was the statute under which the confiscation orders were sought, provided: Section 1 shall not apply in the case of any proceedings against any person where that person is convicted in those proceedings of an offence which was committed before the commencement of that section.
+The section came into force on 1 November 1995.
+The Court of Appeal in Ahmed accepted that the first two conspiracy offences occurred partly before and partly after the operative date.
+That circumstance had been overlooked by the parties and the trial judge.
+If it had been adverted to, it would have been obvious that the judge had a discretion whether to make the confiscation order in the sum that he had decided upon.
+In the event, the Court of Appeal concluded that this would not have made a difference to his decision.
+But the appellants in the present case argue that the court in Ahmed effectively precluded the application of the 1995 Act because of the earlier offences.
+This is not what the court held, however.
+It was decided that the circumstance that two of the three offences had occurred before the operative date meant that the trial judge did indeed have a discretion to make a confiscation order for a lesser sum than that ordered.
+But the court was not required to, and did not address, the question whether the effect of section 16(5) of the 1995 Act was to preclude a confiscation order under that legislation, if an application had been made solely in relation to the offence which occurred after its coming into force.
+In contrast, the respondent in the present case relies exclusively on offences occurring after the coming into force of the 2002 Act.
+As the Court of Appeal in the present case observed (in para 9 of its judgment), it was common case that where the prosecution seeks a confiscation order in respect of an offence committed before the date of coming into force of the relevant statute, the earlier legislation will apply.
+The prosecution in the present case does not seek to rely on offences committed before 24 March 2003.
+On the contrary, it bases its claim for a confiscation order on offences committed after that date.
+Ahmed is therefore not in point in relation to the appellants claim in this appeal.
+In R v Martin [2001] EWCA Crim 2761; [2002] 2 Cr App R (S) 74, the appellant had pleaded guilty to conspiring with others to evade the payment of duty owed to HMRC.
+The evasion took place over the period between October 1994 and January 1997.
+It was held that. since the dates of the conspiracy straddled the commencement date of the 1995 Act, that legislation could not be applied to the appellants case, notwithstanding that overt acts in the perpetration of the conspiracy occurred after that date.
+The Court of Appeal held that Ahmed was directly in point and that it was bound to follow the decision in that case.
+Again, however, the situation in Martin is different from that which obtains in the present appeals.
+In Martin, the prosecution was relying on offences which had occurred before the commencement date for the 1995 Act, in support of its application for a confiscation order under that Act.
+In the present case, the prosecution places no reliance on offences committed before the coming into force of the 2002 Act.
+To the contrary, it says that such offences must be left strictly out of account in deciding whether confiscation orders should be made.
+The Court of Appeal in the present case considered that Martin did not add a great deal on [the issue arising] to Ahmed.
+In my view, it adds nothing to that issue.
+The next authority considered by the Court of Appeal in this case was R v Simpson [2003] EWCA Crim 1499, (2004) QB 118.
+In that case the appellant had pleaded guilty to offences involving VAT fraud.
+A confiscation order was made under section 71 of the Criminal Justice Act 1988.
+The appellant appealed against the confiscation order on the ground that the judge had no jurisdiction to make it because the notice served on the court by the prosecution was not in the form required by section 72(1) of the 1988 Act, and that, by virtue of section 16(5)(c) of the Proceeds of Crime Act 1995, since one of the offences to which he had pleaded guilty had been committed before 1 November 1995, the amendment to section 72, made by section 1 of the 1995 Act, and providing that service of a notice was no longer necessary, did not apply.
+He submitted that the application of section 16(5) was not limited to offences on which the confiscation order was based.
+The prosecution had not sought a confiscation order in respect of the sole charge of an offence that had predated the coming into force of the 1995 Act.
+It was common case that, if the appellant had not been convicted of the offence which had been committed before the commencement date, the 1995 Act would apply.
+But, because he had been convicted of that offence, it was argued that that single conviction determined that the earlier legislation was the only enactment under which a confiscation order could be sought.
+Lord Woolf CJ described this as an obviously absurd result.
+Before the Court of Appeal in the present case, Mr Hutton, and before this court, Mr Macdonald QC, on behalf of the appellants, challenged this description.
+It was, they said, in the nature of transitional provisions that a line had to be drawn somewhere.
+The choice of that line might in some cases seem arbitrary.
+That did not mean that the result produced was absurd.
+While I accept that the imposition of a cut off point will, in some instances, produce a result which might appear anomalous and that anomaly should not be equated with absurdity, for the reasons given earlier (in paras 23 26), I consider that if a significant number of offences committed after 24 March 2003 were excluded from the 2002 Acts application, solely because of the happenstance that a defendant had also been convicted of an offence committed before that date, this would indeed be an absurd outcome.
+The Court of Appeal in Simpson considered that section 16(5) of the 1995 Act should be applied so that, after the word offence in that section, there appears, the words in respect of which a confiscation order is or could be sought para 19.
+It is not clear whether the court proposed that these words be read into the section or merely that they were intended to be clarificatory of the extent of its application.
+Reading in words to a statute is problematic, of course.
+In Inco Europe v First Choice Distribution (a firm) (2000) 1 WLR 586, 592, 115, Lord Nicholls of Birkenhead said: It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language.
+The court must be able to correct obvious drafting errors.
+In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words.
+Some notable instances are given in Professor Sir Rupert Cross admirable opuscule, Statutory Interpretation (3rd ed, 1995) pp 93 105.
+He comments (p 103): In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role.
+This power is confined to plain cases of drafting mistakes.
+The courts are ever mindful that their constitutional role in this field is interpretative.
+They must abstain from any course which might have the appearance of judicial legislation.
+A statute is expressed in language approved and enacted by the legislature.
+So the courts exercise considerable caution before adding or omitting or substituting words.
+Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed.
+The third of these conditions is of crucial importance.
+Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation (see per Lord Diplock in Jones v Wrotham Park Settled Estates [1980] AC 74 at 105 106).
+For the reasons that I have given earlier, I consider that Parliaments intention in enacting the 2002 Act was that all offences committed after the date of its coming into force should be subject to its regime, irrespective of whether they were associated with offences committed before the commencement date.
+In light of the experience in this case, it would perhaps have been preferable that the 2002 Act had made it unmistakably clear that this was the intention.
+I am not sure, however, that the failure to do so amounts to inadvertence on the part of the draftsman.
+But I am entirely satisfied of the substance of the provision Parliament would have made if, indeed, the provision qualifies for the description of drafting inadvertence.
+The substance of the provision which Parliament intended was, as I have said, that all offences committed after March 2003, whether or not they were associated with offences that occurred before that date, should be dealt with under the 2002 Act.
+Whatever of that, it appears to me that it is not necessary to read in words such as those suggested in Simpson.
+The Act was intended to permit applications for confiscation orders for offences committed after 24 March 2003 and to exclude from its application offences which had taken place before that date.
+So understood, the legislation does not require the reading in of further words.
+Provided a clear segregation between pre and post March 2003 offences can be identified, the application of the Act does not present a problem.
+The next case dealt with by the Court of Appeal was R v Aslam [2004] EWCA Crim 2801; (2005) 1 Cr App R (S) 116.
+In that case the appellant pleaded guilty to a number of offences of dishonesty and asked for a number of others to be taken into consideration.
+One of the offences to which he had pleaded guilty and one of those which he had asked to be taken into consideration had occurred before the coming into force of the 1995 Act.
+On this account, it was argued on his behalf that the court had no jurisdiction to make a confiscation order under the 1995 legislation.
+That argument was rejected.
+At para 11, Bean J said: The legislative purpose of section16(5), as it seems to us, was to prevent the Crown from dividing convictions against a defendant in one set of proceedings into pre and post November 1, 1995 matters and then taking confiscation proceedings (concurrently or consecutively) under both statutes.
+So, if at the time the judge is asked to make a confiscation order under the 1995 Act on a number of counts there remains a pre commencement count on which the Crown is seeking, or could still seek, a confiscation order under the 1988 Act as amended in 1993, there is no jurisdiction to make an order under the 1995 Act.
+However, if the pre commencement count is one which could not be the basis of confiscation proceedings, there is no obstacle to using the 1995 Act regime.
+Similarly, if (as in this case) the Crown has expressly abandoned any reliance on the pre commencement count for the purposes of a confiscation order, the fact that it could have sought such an order in respect of that count seems to us entirely immaterial.
+In such a case also, in our judgment, there is no obstacle to using in the 1995 Act regime in respect of the post commencement counts.
+We do not understand Simpson to require a contrary conclusion. (Emphasis supplied)
+In Aslam, as in this case, the prosecution did not rely on a pre commencement offence in support of its application for a confiscation order.
+The court in that case referred to the approach in Simpson of treating section 16(5) as if it read in the manner described in para 36 above.
+It did not suggest (at least, not expressly) that words should be read into the section.
+For the reasons that I have given, I do not consider that this is necessary.
+The drawing of the line by the commencement provision is readily explicable for reasons quite different from the rationale suggested by the appellants in the present case.
+It is, as Bean J said, to avoid the undesirable prospect of having two sets of parallel or even consecutive proceedings under two different items of legislation, with all the undesirable consequences that would entail.
+It is also to provide a clear demarcation line between the effective application of the 2002 Act and preceding legislation.
+It is entirely consonant with common sense and good administration that the demarcation should be applied so that only those offences which were committed after it came into force were caught by the 2002 Act.
+It is also plainly sensible that the line should not be blurred by allowing the Act to apply solely to those cases which happened not to be associated with a pre March 2003 offence.
+It may be possible to construe the Act in that way but I am satisfied that this is not how it was intended to apply.
+The Court of Appeal in the present case also briefly considered the decision in R v Stapleton (2009) 1 Cr App R (S) 38.
+The appellant pleaded guilty to six offences of furnishing false information, contrary to the Theft Act 1968.
+She was committed to the Crown Court for sentence under the 2002 Act, with a view to a confiscation order being considered.
+She had made claims for housing benefit in the amount of 15,946 between July 2002 and August 2006.
+A confiscation order was made under the 2002 Act.
+On appeal, an argument was made on her behalf in broadly similar terms to those presented by the appellants in this case.
+Two of the offences had been committed before 24 March 2003.
+It was argued that the straightforward reading of the transitional provisions meant that there was no power to make an order under the 2002 Act.
+Reference was made to R v Clarke [2008] UKHL 8; [2008] 1 WLR 338, where it was said that where the statutory provisions were clear in their terms, the court was bound to apply them, even if the consequence was that a defendant is enabled to obtain what might be regarded as an unmerited outcome.
+In Clarke Lord Bingham said (at para 17): Technicality is always distasteful when it appears to contradict the merits of a case.
+But the duty of the court is to apply the law, which is sometimes technical, and it may be thought that if the state exercises its coercive power to put a citizen on trial for serious crime a certain degree of formality is not out of place.
+The Court of Appeal in Stapleton acknowledged the obvious authority of this statement but nevertheless considered itself bound by Aslam.
+The court also acknowledged that Aslam had been criticised by Professor Thomas in his commentary on the case which appeared in 2005 Criminal Law Review 154.
+But, Latham LJ, who delivered the judgment of the court, observed that it could not be said that Aslam was plainly wrong.
+It had to be followed.
+It is, I believe, possible to address somewhat more forthrightly than did the court in Stapleton the argument that the technical interpretation of the relevant provisions of the 2002 Act compel a result that the decision in Aslam was wrong.
+The correct interpretation of those provisions must be informed by the predominant purpose of the legislation.
+As I have said, its purpose was to provide a clear dividing line between those offences which were caught by the Act and those which were not.
+A sensible, workable segregation exists between offences committed before 24 March 2003 and those which occurred after that date.
+While it is theoretically possible to construe the Act as placing an embargo on its application to post March 2003 offences where they are associated with offences before that date, in no sense is that the only possible construction.
+This is not a question of the technical interpretation of the legislation compelling a particular result.
+Rather it is a matter of construing the legislation in a perfectly legitimate way which keeps faith with its plain and obvious purpose.
+Professor Thomass disapproval of Aslam, and in a second commentary in 2008 Criminal Law Review 1, of Stapleton founds on two principal criticisms.
+The first was that reading words into the statute was objectionable.
+For reasons given earlier, I do not believe that it is at all clear that the Court of Appeal in Simpson did read words into the provision but merely clarified how its interpretation should be approached by the device of instancing words that would have made its meaning clearer.
+In any event, if words were read into the statute, that was an unnecessary exercise.
+Finally, it is not in the least apparent that the Court of Appeal in Aslam did read words into the statute.
+The second major criticism made by Professor Thomas was that the court had no discretion to ignore offences of which the defendant has been convicted.
+This objection to the approach of the court in Aslam, Simpson and Stapleton was based on his consideration of section 76(3) of the 2002 Act (the equivalent of section 224(3) in Part 4).
+He suggested that a defendants particular criminal conduct [was] all of the defendants criminal conduct which constitutes the offence or the offences concerned, and conduct which constitutes offences of which he was convicted in the same proceedings as those in which he was convicted of the offence or offences concerned.
+This is the same argument as was advanced by the appellants in the present case and which, as I observed in para 17, I initially found attractive.
+For the reasons that I there gave, however, I consider that it is ill founded.
+The facts of the present cases
+At all material times the appellants, Ms McCool and Mr Harkin were man and wife.
+Ms McCool was charged with and pleaded guilty to four offences of obtaining benefit by fraud.
+These were of false accounting on 26 September 1990 for the purpose of obtaining income support as a single person, when in fact she was married; making a false declaration to similar effect on 28 November 2003; making the same false declaration on 20 October 2005 and again on 10 August 2010.
+One of the offences therefore preceded the coming into force of the 2002 Act.
+The other three did not.
+It was asserted that she had received an overpayment of 76,817.72 in the period between 11 November 2003 and 17 May 2011 and it was this sum which formed the basis of the application for the confiscation order. (It was adjusted to 84,966.30 to take account of the increase in the value of money between the time that the benefit was paid and the date of Ms McCools plea of guilty.)
+The available amount to meet the confiscation order was deemed to be 38.037, representing half the value of the estimated equity of a property which she owned jointly with her husband, Mr Harkin, the second appellant.
+The Crown Court judge held that Ms McCool had benefited in the amount of 84,996 and made a confiscation order for a sum exceeding 38,000.
+In the case of Mr Harkin, he pleaded guilty to making a false declaration on 16 December 1999 in relation to an application for income support, representing that he was single when he was in fact married to Ms McCool.
+He pleaded guilty to other offences, two of which were similar to the first offence in December 1999 and the remainder were in relation to housing benefit.
+In all of these cases, the offences were committed after the coming into force of the 2003 Act.
+The total amount of the benefits received was said to be 53,937.12, after making adjustment for the changes in the value of money.
+A confiscation order was made in his case in the same sum as Ms McCools.
+On appeal to the Court of Appeal, the appellants argued, as they have before this court, that the Crown Court did not have jurisdiction to make the orders which it did.
+They also argued, however, that the Crown Court should have applied Regulation 13 of the Social Security (Payments on Account, Overpayments and Recovery) Regulations (Northern Ireland) to reduce the amount of recoverable benefit by deducting the amounts to which the appellants would have been entitled, had they made honest and accurate applications for benefit.
+The Court of Appeal acceded to the latter argument and reduced the sums to be recovered by way of confiscation to 5,531.95 in the case of Ms McCool and 33,624 in the case of Mr Harkin.
+That order has not been challenged by the respondent on this appeal.
+An application for leave to appeal to this court was refused by the Court of Appeal but the court certified the following question as giving rise to a point of law of public general importance: Can a confiscation order under section 156 of the Proceeds of Crime Act 2002 be made by a Crown Court in circumstances where a defendant is convicted in proceedings before that Crown Court of an offence or offences which were committed before 24 March 2003, given the stipulations of the commencement, transitional and saving provisions set out in articles 2, 4 and 11 of the Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, Savings and Amendment) Order 2003?
+Both appellants were convicted of offences which, in all instances save one in each case, were committed after the coming into force of the 2002 Act.
+I have concluded that the offences committed after 24 March 2003 had to be dealt with under the 2002 Act by the Crown Court considering whether to make confiscation orders against the appellants.
+I have also decided that the court was obliged to leave out of account offences which occurred before that date.
+I would therefore answer the certified question in the affirmative.
+Conclusion
+I would dismiss the appeal.
+Postscript
+I agree with what Lord Hughes has had to say about the power of the Court of Appeal to substitute an order under a different regime see paras 108 et seq of his judgment.
+LORD HUGHES: (with whom Lady Black agrees)
+Overview
+Not for the first time, this case concerns a technical issue relating to the construction of confiscation legislation.
+The two defendants, who have at all material times been married to one another, were both convicted of a series of offences of making dishonest claims for State benefits by pretending that they were single people when they were not and, in the case of Harkin, by claiming housing benefit for a house when he was living with Ms McCool at a different one.
+There is and was no significant dispute as to the total amounts which they thereby obtained over a period of some years.
+There is and was no serious dispute that confiscation orders were appropriate, nor that substantial assets were available, from which such orders could be met: the available amount was accepted to be 38,037 each.
+The only issue of substance in relation to the proper sum to be confiscated arose from the contention that the amount of the order ought to be reduced, in accordance with R v Waya [2012] UKSC 51; [2013] 1 AC 294 from the gross payments received (the benefit for the purposes of the legislation) to the amount of overpayment.
+The Court of Appeal accepted that contention and reduced the confiscation orders accordingly.
+The Crown accepts the reduction, and there thus remains no dispute as to the sums.
+But it is said on behalf of both defendants that the orders were made under the wrong set of confiscation legislation and must for that reason be quashed.
+The reason why this is said relates to the commencement dates of the confiscation legislation and the transitional provisions effecting the change from one set to another.
+The question here arises in a Northern Ireland case, but the legislation is substantially the same in England and Wales, and indeed very largely in Scotland.
+For convenience, the equivalent England and Wales provisions, where identical, are noted in brackets.
+By way of very broad summary, confiscation legislation in the UK began with the Drug Trafficking Offences Act 1986 (DTOA 1986).
+Shortly afterwards, the Criminal Justice Act 1988 (CJA 1988) introduced similar provisions for non drug offending.
+Both statutes responded to international co operation, and treaty obligations in both fields arose at about the same time.
+Initially the regime affecting drug offending was more severe than that applying to other offences.
+The DTOA 1986 was replaced by the Drug Trafficking Act 1994 (DTA 1994).
+Meanwhile by the Criminal Justice Act 1993 (CJA 1993) and the Proceeds of Crime Act 1995 (POCA 1995) a number of amendments were made.
+Three which affected non drugs offending may here be relevant: (1) the courts discretion as to the amount of the order was removed and replaced by an obligation (in all but immaterial exceptional situations) to make an order in the sum of the benefit obtained, capped by the available (or realisable) amount; (2) the concept of a minimum benefit disappeared, and (3) provision was introduced for including benefit from past offending where there was a course of criminal conduct.
+Those alterations brought the non drug regime closer into line with what the drug regime had always been.
+There was also in the past separate legislation for confiscation in relation to terrorist offences, which it is not necessary to consider here.
+Then, in 2002 the legislation was re worked and consolidated in the Proceeds of Crime Act 2002 (POCA 2002), which assimilates drug and other offending.
+This Act contains separate but similar sections for, respectively, England and Wales, Scotland and Northern Ireland.
+The Northern Ireland legislation relating to confiscation for both kinds of offence has been: (i) The Criminal Justice (Confiscation)(Northern Ireland) Order 1990, 1990 No 2588 (NI 17) (the 1990 Order); this dealt with both drugs and other offences; (ii) The Proceeds of Crime (Northern Ireland) Order 1996 (SI 1996/1299) (NI 9) (the 1996 Order); this essentially mirrored the changes made in England and Wales in 1993, 1994 and 1995 and came into force on 25 August 1996; and (iii) The Proceeds of Crime Act 2002; the chiefly relevant provisions of this Act came into force for Northern Ireland (as also for England and Wales) on 24 March 2003.
+The issue
+Ms McCools indictment, to which she pleaded guilty, charged four counts.
+The first related to 26 September 1990.
+The remaining three related to November 2003, October 2005 and August 2010.
+Those counts reflected a continuing course of repeated false representations made between 1990 and 2010.
+Harkins indictment, to which he also pleaded guilty, contained counts relating to offences committed in December 1999, October 2005, April 2006, May 2007 and August 2009.
+Those counts reflected a course of repeated false claims made between 1997 and 2009 (income support) and between March 2003 and 2011 (housing benefit).
+When calculating the benefit for the purpose of the confiscation proceedings, the prosecution disclaimed reliance, in both cases, on any offending before the commencement of POCA 2002 in March 2003.
+In Ms McCools case, her benefit was calculated from the date of her second count (28 November 2003).
+The gross sums obtained were 76,817.72; adjusted for inflation this became 84,966.30.
+The overpayments however, were 5531.95.
+In Harkins case, his benefit was similarly calculated.
+As to income support, benefit was calculated by the prosecution as running from 20 October 2005 to 18 November 2009, and as to housing benefit from 3 April 2006 to 27 March 2011.
+In each case the start date for the calculation of benefit was the date of the earliest count on the indictment which related to a time after the commencement of POCA 2002.
+The gross payments received, adjusted for inflation, were 53,937.12.
+The sum overpaid was (similarly adjusted) 33,624.
+It follows that these net benefit figures were significantly smaller than the total overpayments dishonestly obtained from 1990 onwards in the case of Ms McCool and from 1999 onwards in the case of Harkin.
+They were also, but not by nearly so much, somewhat smaller than the total overpayments obtained after the commencement of POCA 2002.
+The confiscation orders were made under POCA 2002.
+The appellants contend that there was no power to make orders under that Act.
+They say that any order could only be made under the relevant predecessor legislation, thus the 1990 Order for Ms McCool and the 1996 Order for Harkin.
+This contention is founded on the terms of section 156 of POCA 2002 and of the relevant Commencement Order.
+Section 156 [section 6 for England and Wales] is the foundation of the power to make a confiscation order.
+So far as relevant, it says: 156 Making of order (1) The Crown Court must proceed under this section if the following two conditions are satisfied. (2) The first condition is that a defendant falls within either of the following paragraphs (a) he is convicted of an offence or offences in proceedings before the Crown Court; (b) he is committed to the Crown Court in respect of an offence or offences under section 218 below (committal with a view to a confiscation order being considered). (3) The second condition is that the prosecutor asks the court to proceed (a) under this section, or (b) do so. the court believes it is appropriate for it to (4) The court must proceed as follows it must decide whether the defendant has (a) a criminal lifestyle; (b) if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct; (c) if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct.
+If the court decides under subsection (4)(b) or (c) (5) that the defendant has benefited from the conduct referred to it must (a) decide the recoverable amount, and (b) make an order (a confiscation order) requiring him to pay that amount. [exception where victim brings civil (6) proceedings]. (7) The court must decide any question arising under subsection (4) or (5) on a balance of probabilities. (8) [provision for absconding defendant]. (9) References in this Part to the offence (or offences) concerned are to the offence (or offences) mentioned in subsection (2).
+The relevant Commencement Order is the Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, Savings and Amendment) Order 2003 (SI 2003/333) (C20) (the Commencement Order).
+So far as material, it says in article 4(1) [article 3(1) E & W]: 4.(1) Section 156 of the Act (making of confiscation order) shall not have effect where the offence, or any of the offences, mentioned in section 156(2) was committed before 24 March 2003.
+And by article 11, [article 10 E & W] it preserves the predecessor legislation for cases where article 4 precludes use of POCA 2002: 11.
+Where, under article 4 or 6, a provision of the Act does not have effect, the following provisions shall continue to have effect (e) Articles 3 to 40 of, and paragraph 18 of Schedule 3 to, the Proceeds of Crime (Northern Ireland) Order 1996.
+It follows that the issue in this case relates to which offences are contemplated by section 156(2) and thus referred to in article 4(1).
+Is it, in each case, any offence for which the defendant is before the court, or is it any such offence which is relied upon by the Crown (or the court) as justifying confiscation proceedings?
+Previous authority
+A similar problem arose (in England and Wales) in relation to the transition from the pre 1995 legislation to POCA 1995.
+Section 16(5) of that latter Act contained a provision very similar to the present article 4(1).
+It provided: Section 1 shall not apply in the case of any proceedings against any person where that person is convicted in those proceedings of an offence which was committed before the commencement of that section.
+As Lord Kerr explains, the Court of Appeal (Criminal Division) confronted this question in R v Simpson, R v Aslam and R v Stapleton.
+It concluded that the offence(s) referred to were ones which were relied upon for the making of a confiscation order, that is to say those which the Crown was seeking, or could still seek, to bring into account for confiscation purposes.
+It followed that if when it came to confiscation the Crown disclaimed reliance on a pre commencement count and brought into account only post commencement offences, the new Act applied.
+I agree with Lord Kerr that it is not necessary to read words into the new statute to achieve this.
+Nor, pace the Court of Appeal (Criminal Division) in R v Simpson, is it necessary to label the alternative construction absurd.
+The decisions were that the new statutes applied where the relevant offences, that is to say those relied on for confiscation purposes, post dated the commencement date.
+There is no doubt that these decisions have consistently been followed as a matter of practice since, as is shown by the considered decision of the Crown in the present case to disclaim reliance on the counts which pre dated March 2003.
+The decisions have also consistently been applied in the Court of Appeal (Criminal Division); see for example R v Aniakor [2014] EWCA Crim 2171.
+The present appellants contend that this established line of authority, and the practice based upon it, are wrong.
+Of course, if this construction of the statutes, despite such general acceptance, is not permissible, then it must follow that however technical the objection raised, the orders made in the present case cannot stand.
+The appellants argument
+The argument for the appellants rests principally upon the fact that there are some differences between the POCA 2002 regime and the earlier regimes which it replaced.
+The confiscation legislation is, it is rightly said, penal legislation.
+Accordingly, it is said that it ought to be construed strictly in favour of defendants to whom its provisions are applied.
+It is unjust, it is said, to permit the Crown by a process essentially of election, to choose which regime is to apply to a defendant.
+And it is contended that the wording of article 4(1) [article 3(1) E & W] of the Commencement Order is clear and can only sensibly mean that where any offence on the indictment dates back before the commencement date of POCA 2002, the old regime applies and not the new.
+Differences between the regimes
+The appellants helpfully assembled a list of differences.
+By no means all of them could even arguably affect them, but their case is that all of them are relevant to deciding the principle whether POCA 2002 can be applied to those who are before the Crown Court for offences which include pre commencement offences, even if the Crown disclaims reliance on the earlier offence(s) for the purposes of confiscation.
+The identified differences are addressed serially below.
+First, the pre 1995 non drug regimes provided for confiscation to be available only where the benefit exceeded a minimum amount (set at all material times at 10,000) and moreover made the same sum the minimum amount for which a confiscation order could be made: article 4(1) of the 1990 Order [the unamended section 71(2)(b)(ii) CJA 1988 for E & W].
+Allied to this rule, the pre 1995 non drug regimes required the Crown to serve notice to the effect that an order in at least the minimum amount would be possible: article 4(6) of the 1990 Order [the unamended section 72(1) CJA 1988 for E & W].
+This concept of a minimum amount never applied to drugs offending, and disappeared from the legislation after POCA 1995 and the 1996 Order.
+Second, the pre 1995 non drug regimes vested in the court a discretion as to the amount of a confiscation order.
+The court was given the power to make such order as it thought fit, subject to the ceiling of the assets available/realisable: Article 4(1) of the 1990 Order [the unamended section 71(1) CJA 1988 for E & W].
+Since 1995/1996 the court has been required in all but immaterial cases to make an order in the amount of the benefit which the defendant has obtained, subject again to the ceiling of available/realisable assets.
+There was never any discretion in the drug regimes.
+Third, for the non drug regimes, there was until the 1995/96 changes no provision for taking into account benefit obtained from offences other than those before the court, either as charges or as offences taken into consideration.
+Since then, benefit from other offences has been taken into account in prescribed circumstances.
+The label attached to the prescribed circumstances was, until POCA 2002, a course of criminal conduct: article 9 of the 1996 Order [new section 72AA(1) CJA 1988 inserted by POCA 1995 for E & W].
+Since POCA 2002 it has been criminal lifestyle: POCA 2002 section 156(4) and 223 [sections 6(4) and 75 for E & W].
+The conditions for attracting these extended provisions have not remained identical, but are very similar.
+The post 1995/96 conditions were satisfied if the defendant was now, or had been in the preceding six years, convicted of one other offence: article 9(1) of the 1996 Order [new section 72AA(1) CJA 1988 for E & W].
+Under POCA 2002 the defendant falls within the lifestyle provisions if there are either three additional convictions (four in all) in the present proceedings, or two previous convictions in the preceding six years: section 223(3) POCA 2002 [section 75(3) for E & W].
+Moreover, the course of criminal activity lifestyle rules of POCA 2002 do not apply unless the total benefit is 5,000 or more: section 223(4) [section 75(4) E & W].
+In these respects the qualifying conditions are narrower under POCA 2002 than under the previous 1995/96 regime.
+But under POCA 2002 a defendant is also to be treated as a lifestyle offender if he is convicted of certain specific offences, or (subject to the 5,000 minimum) of an offence committed over a period of at least six months: section 223(2) [section 75(2) for E & W].
+The objective seems sensibly to have been to identify more reliably those whose offending spanned a period so as to raise the realistic possibility that their lifestyle was to a significant extent supported by crime.
+The effect of the course of conduct and lifestyle conditions being satisfied is, in each case, to make available to the court assumptions as to benefit, each applicable unless either the defendant disproves it on the balance of probabilities, or there would be a serious risk of injustice if it were made.
+The assumptions are the same under both regimes, although the first has been split into two in POCA 2002: compare section 160 POCA 2002 [section 10 E & W] with article 9, 1996 Order [new section 72AA(4) CJA 1988 E & W].
+The chief assumptions are that any property held by the defendant over the preceding six years, and any expenditure made by him over the same period, are the product of criminal offences, so that they count towards his benefit.
+Plainly the objective under both regimes is to cast the onus onto a lifestyle offender to demonstrate, on the balance of probabilities, that his assets have been legitimate.
+There is one difference between the 1995/96 regime and the POCA 2002 regime, in that the assumptions, which were discretionary under the former, have become mandatory under the latter.
+In the case of drug offending, the assumptions were always available, and the confiscation order took into account all benefit from drug offending whenever it occurred, before or after the inauguration of the confiscation legislation: see eg DTOA sections 1(3), 2(1)(a) and 2(2).
+Fourth, the rules as to postponement of confiscation, which were the subject of a considerable amount of litigation until the House of Lords held in R v Soneji [2005] UKHL 49; [2006] 1 AC 340 and R v Knights [2005] UKHL 50; [2006] 1 AC 368 that failure strictly to comply with them did not usually render an order invalid, have been modified from time to time.
+Under the 1990 Order the maximum postponement was six months: article 7.
+Later that was revised to six months absent exceptional circumstances: article 11 of the 1996 Order [section 72A(3) CJA 1988 inserted by section 28 CJA 1993 E & W].
+Under POCA 2002 postponement can be for up to a maximum of two years, and beyond in event of exceptional circumstances: section 164 [section 14 E & W].
+Fifth, all the regimes have provided for the calculation of the ceiling amount of the defendants available or realisable assets to include gifts which he has made.
+Under the pre POCA 2002 non drug regimes, gifts which were thus to be included were those made by the defendant after the commission of the predicate offence which the court thought it appropriate to take into account: article 3(10) of the 1990 Order and article 7(1)(a) of the 1996 Order [section 74(10) unamended CJA 1988 E & W].
+Under POCA 2002 the same rule for what are now termed tainted gifts applies by section 225(5) [section 77(5) E & W], but the expression is widened in lifestyle cases, logically enough, to include gifts either made during the six year period or which were of property obtained via criminal conduct: section 225(2)(3) [section 77(2)(3) E & W].
+In both cases, if gifts qualify as tainted they are now to be added into available assets, without a further requirement that the court conclude it appropriate to do so.
+Sixth, from time to time the provisions relating to variation of confiscation orders have been revisited and revised.
+It is enough to record that the 1995/96 regimes somewhat extended the power to vary an order upwards, when compared with the pre 1995 regime, in the event of fresh evidence becoming available.
+POCA 2002 provides for additional specific situations in which there may be variation on the basis of fresh evidence; they include cases where the Crown Court made no confiscation order at all, either because it was not invited to do so, or where at that time the evidence did not show any benefit.
+Seventh, there are differences in the means of enforcement of confiscation orders.
+It is unnecessary to set them out.
+Essentially the system of enforcement has remained the same throughout.
+Confiscation orders are enforced by the magistrates as if they were Crown Court fines: see R v Guraj [2016] UKSC 65.
+Additional mechanisms have however been added from time to time, such as widening the range of officials who may exercise powers of seizure, extending the powers of management receivers appointed under restraint orders, and enlarging the ability to enforce as if civil debts.
+The appellants identify a particular aspect of enforcement.
+When making a confiscation order the court has always had power to stipulate the time within which payment must be made.
+In Northern Ireland the power derived until POCA 2002 from the general provisions for fines, found in section 35(1) of the Criminal Justice Act (NI) 1954, which permitted extension of the period from time to time.
+Under POCA 2002, section 161(5) [section 11(5) E & W] time cannot be extended beyond 12 months.
+The charging of interest depends on the time given to pay, because it runs from default.
+It follows that in this respect POCA 2002 is, at least theoretically, more severe than the previous regime, under which it was at any rate legally possible for time to be extended beyond 12 months.
+Eighth, the early legislation placed confiscation jurisdiction in the court of trial, whether the Crown Court or the Magistrates Court.
+POCA 2002 restricts it to the Crown Court and therefore includes provision for the defendant who is convicted of a benefit generating offence before the magistrates to be committed to the Crown Court for confiscation to be considered: section 218 [section 70 E & W].
+This power of committal is separate from, and wider than, the ordinary power which magistrates have in England and Wales to commit a defendant for sentence where he is convicted of an offence triable either way.
+It extends to purely summary offences, and is a power of committal available only where confiscation is a possibility.
+The terms of the provisions for committal are relevant context on the construction question and are considered more fully below.
+Ninth, the earlier legislation made no provision for a right of appeal by the Crown.
+The defendants right of appeal was secured from the outset because a confiscation order was, although not strictly part of the sentence, an order made when dealing with an offender and thus appealable as if a sentence under section 30 Criminal Appeal Act (Northern Ireland) 1980 [section 50 Criminal Appeal Act 1968 E & W]: see R v Johnson [1991] 2 QB 249.
+This was later reinforced by inserting specific provision in those statutes including a confiscation order in the definition of sentence, such as section 30(3)(a) of the Criminal Appeal Act (Northern Ireland) 1980 [section 50(1)(d) Criminal Appeal Act 1968 E & W].
+There is of course no general right of appeal by the Crown against sentence (although there existed the power to refer the case under section 36 of the Criminal Justice Act 1988 as unduly lenient).
+A general right in the Crown to challenge either a decision not to make a confiscation order, or the amount of it if made, had to be created separately and is found in section 181 182 of POCA 2002 [sections 31 32 E & W].
+The detail and technicality of the confiscation legislation, sometimes necessary and sometimes not, is such that changes from time to time of the kind set out above are to be expected.
+The question which matters for present purposes is whether these differences mean that the Simpson/Aslam construction of POCA 2002 is thereby rendered impermissible.
+That in turn involves asking whether that construction would or might result in any unfairness to defendants.
+If it would, or might, then the principle that penal statutes must be construed strictly in favour of those penalised would carry considerable weight.
+There would be unfairness, and a breach of article 7 ECHR, if this construction had the effect of applying retrospectively to defendants a regime which was not in force at the time their offences were committed.
+But there is no question of this retrospective operation of POCA 2002 if it is applied only to confiscation proceedings depending on offences committed after its commencement.
+If the Crown disclaims reliance, for confiscation purposes, on any pre commencement offence, then retrospective operation simply does not arise.
+The principal rationale of the impermissibility of retrospective operation of a penal statute is that a citizen is entitled to know, at the time he decides how to behave, what the legal consequences of what he does may be.
+If now these appellants, or other defendants like them, were to be visited with consequences by way of confiscation of a kind different from what was available to the Crown when they committed the offence(s) attracting those consequences, there would be impermissible retrospective operation of the criminal law.
+But these appellants have committed offences since the commencement of POCA 2002.
+The consequences which have been visited upon them are precisely the same as would have been applied to anyone else who committed such offences after that commencement.
+It is true that both of them have also committed pre commencement offences.
+But the orders made owe nothing to those offences and are precisely the same as would have followed if the earlier offences had never occurred.
+There is nothing unfair in saying to Ms McCool that she should bear the confiscation consequences of her post March 2003 offences, as required by POCA 2002, unless those consequences differ in some way from what they would have been if she had not committed her earlier offences.
+They do not.
+The same is true of Harkin.
+There would also be likely to be a real risk of unfairness if a defendant faced the prospect of two different confiscation regimes being applied to him, because so much of the ground covered by each regime is the same.
+This was the consideration underlined by the Court of Appeal, Criminal Division, in Aslam [2005] 1 Cr App R (S) 116.
+Speaking of the commencement provisions in POCA 1995, the courts judgment contains the following analysis: 11.
+The legislative purpose of section 16(5), as it seems to us, was to prevent the Crown from dividing convictions against a defendant in one set of proceedings into pre and post November 1, 1995 matters and then taking confiscation proceedings (concurrently or consecutively) under both statutes.
+So if at the time the judge is asked to make a confiscation order under the 1995 Act on a number of counts there remains a pre commencement count on which the Crown is seeking, or could still seek, a confiscation order under the 1988 Act as amended in 1993, there is no jurisdiction to make an order under the 1995 Act.
+However, if the pre commencement count is one which could not be the basis of confiscation proceedings, there is no obstacle to using the 1995 Act regime.
+Similarly if (as in this case) the Crown has expressly abandoned any reliance on the pre commencement count for the purposes of a confiscation order, the fact that it could have sought such an order in respect of that count seems to us entirely immaterial.
+In such a case also, in our judgment, there is no obstacle to using in [sic] the 1995 Act regime in respect of the post commencement counts.
+However, for the reasons explained in that passage, there is no question of more than a single confiscation regime being applied to these appellants or anyone in a similar position.
+That is because the offences which are relevant to section 156 [section 6 E & W] are those on which the Crown and thus the court will found any confiscation order.
+Where, as here, any earlier pre commencement offences are disclaimed by the Crown, and not relied upon by the court, there can only be the single confiscation regime established by POCA 2002.
+This position is true despite the various differences between the regimes which are set out above.
+Ms McCool, had she been dealt with in the early 1990s for her offending up to that point, would have been subject to a confiscation regime under which 10,000 was the minimum sum for which an order could be made see the 1990 Order and para 71 above.
+But to say that an order can now be made against her under POCA 2002, where there is no minimum, is to subject her to no injustice if the order is made exclusively on the basis of offences committed since March 2003.
+It is exactly the same as if she had now been prosecuted only for the post March 2003 offences.
+In that event, everyone agrees that POCA 2002 would be the relevant regime and there would be no minimum sum.
+For the same reasons, there is no injustice to Ms McCool in the fact that the regime applied to her permits of no general discretion as to the amount of the confiscation order.
+She is in exactly the same position as she would have been in if prosecuted only for the post March 2003 offences.
+It might be added that, in any event, no basis is suggested on which any court considering her case at any time under any regime might have made an order in a sum smaller than the 5,531.95 actually made.
+The lifestyle provisions are of some complexity but the same reasoning applies.
+If these appellants had been prosecuted only for the post March 2003 offences, no one suggests that the POCA 2002 provisions would not correctly have been applied to them.
+The slightly different lifestyle provisions of POCA 2002 are deliberately applied to anyone convicted of offences committed after the commencement of that statute.
+They were in force when those post commencement offences were committed, and no improper retrospectivity is involved in applying them.
+In considering the lifestyle provisions it is necessary to distinguish between the conditions which must be met before they can be applied, and the consequences if they are.
+It is certainly true that the conditions for their application may to a strictly limited extent involve looking at past convictions.
+There are two possible routes to a finding that there has been a course of criminal activity.
+The first is that the defendant is convicted in the current proceedings of at least three other offences (ie at least four in all) from which he has benefited: section 223(2)(b) with section 223(3)(a) [section 75(2)(b) with section 75(3)(a) E & W].
+The second is that he has previous convictions, sustained on two or more different occasions, for benefit generating offences: section 223(2)(b) with section 223(3)(b) [section 75(2)(b) with section 75(3)(b) E & W].
+As to the first route, one or more of the three other offences might of course be pre commencement.
+But if it is, the Commencement Order requires it to be left out of consideration: Article 8(2) [article 7(2) E & W], and nor can its associated benefit count towards the minimum benefit condition of 5,000 required by section 223(4) and (5) [section 75(4) and (5) E & W]: Article 8(3) as amended [article 7(4) E & W].
+The exception of pre commencement offences for this purpose of counting three others in the present proceedings, and counting a minimum of 5,000 benefit has clearly been stipulated for in the Commencement Order to avoid any risk of retrospectivity, for under the 1995/96 regime only one other offence was sufficient and there was no minimum benefit requirement.
+It may or may not have been necessary, in order to avoid infringement of article 7 ECHR, to make these stipulations, given that the new conditions are tighter, not looser, for the establishment of a course of criminal activity, but this must have been the aim.
+Whatever the reason, the outcome is that no pre commencement offences, even if the conviction occurs in the current proceedings, can count towards the establishment of a course of criminal activity via the three other offences (four in all) rule.
+It is also to be noted that the fact that it was thought necessary, in order to achieve this, to include articles 8(2) and (3) in the Commencement Order is relevant to the construction of section 156: see below.
+As to the second route, the past convictions may clearly have been pre commencement, as was the case under the previous regime.
+These can and do count, as article 8(5) of the Commencement Order [article 7(5) E & W] makes clear.
+There is no reason why they should not.
+There is no offensive retrospectivity so long as the past convictions only go to the calculation of benefit in respect of confiscation based on post commencement offence(s).
+It is similar to taking account of previous criminal history for sentencing purposes.
+The rule that such pre commencement benefit might be taken into account when fixing the confiscation order was in force and available to the defendant at the time he committed the post commencement offence(s) which generate the order.
+POCA also introduced two new routes to the lifestyle provisions, as additions to the course of criminal activity routes.
+The first is that some offences specified in Schedule 5 [Schedule 2 E & W] (intended to be the kind likely to be committed by professional criminals) now automatically bring the lifestyle provisions into play.
+The second is that an offence committed over a period of six months or more also does so, since it is likely to involve repetition.
+Both these new routes are more severe on defendants than the previous regimes.
+Accordingly, for both of them, the Commencement Order provides by article 8(2) [article 7(2) E & W] that pre commencement offences are to be left out of consideration.
+There is thus no risk of objectionable retrospectivity or unfairness.
+When it comes to the consequences of the lifestyle provisions applying, it is necessary to go back in the statute to section 160 [section 10 E & W].
+This sets out the assumptions which must be made.
+As with the provisions of the previous regimes, they do involve counting as benefit assets obtained before the Act was passed, if but only if the defendant cannot displace the assumptions on the balance of probabilities.
+But that is the position for anyone convicted of (say) a course of dishonest conduct perpetrated between June and December 2003, if he qualifies under the lifestyle provisions.
+The counting of past obtained benefits is not objectionably retrospective, because it applies a regime which was in force when the offences were committed.
+Nor, for the same reasons, is there any unfairness to a defendant if the Crown disclaims reliance on any pre commencement offence in the present indictment and proceeds in relation only to the post commencement offence(s).
+A defendant whose case is treated in this way by the Crown is in exactly the same position as if he had only been prosecuted for, or indeed had only committed, the post commencement offence(s).
+Exactly the same applies to the various other differences between the regimes which are set out at paras 75 81 above.
+In all cases there is no unfairness to a defendant such as these appellants if the POCA 2002 regime is applied, based only on post commencement offences, because the rules which are being applied are those which were in force, and publicly known, at the time the offence(s) generating the confiscation order were committed.
+Even if it were to turn out possible for circumstances to occur in which the result of this, correct, construction of POCA 2002 as applied in the Aslam series of cases was to create real risk of unfairness to the defendant, the court retains a simple method of preventing such risk eventuating.
+On any view, under both the present POCA 2002 regime and its predecessors, the court is given the power to embark upon the confiscation process of its own motion, even if not asked by the Crown to do so: section 156(3)(b) POCA 2002 or article 8(1)(b) of the 1996 Order [section 6(3)(b) POCA 2002 or section 71(1)(b) CJA 1988 for E & W].
+On the assumption that the Aslam construction is correct, the offence(s) in respect of which the confiscation inquiry is undertaken are therefore those which either the Crown seeks to rely on or the court determines should be made part of the process.
+It would therefore be open to a defendant to apply to the court to determine that one or more pre commencement counts ought to be included in the process, on the grounds that if they are not he would be at demonstrated risk of unfairness.
+If the court acceded to that application, the earlier count would be part of the confiscation inquiry and, as the Commencement Order ordains, the relevant statutory regime would then be the earlier one.
+It is clear from the judgment of Lord Reed that the foregoing conclusions as to the absence of risk of unfairness is not in issue; his differing conclusions depend on his construction of the legislation.
+The construction of section 156 and the Commencement Order
+There is no basis for the appellants assertion that it is improper, or inconsistent with POCA 2002, for there to be an element of election by the Crown in relation to which offences are relied on for the confiscation process.
+Section 156 [section 6 E & W] does not make a confiscation order available in respect of every person who profits from criminal behaviour.
+It makes it available in relation to those who are convicted of one or more offences.
+Certainly confiscation depends on benefit from conduct rather than attaching to particular offences, but the confiscation exercise is, by section 156(2) [section 6(2) E & W] triggered by the offences there referred to.
+It is axiomatic that the decision to prosecute for an offence is for the Crown.
+An element of choice as to which offence(s) to charge is inherent in the vast majority of prosecution decisions, and in all where there is serial offending.
+It is positively unusual for every offence revealed to be charged.
+It follows that by deciding to charge only those of a series of offences which were committed after the commencement date, the Crown can achieve exactly the same result as contemplated by Aslam and similar cases, that is to say the application of the POCA 2002 regime.
+No one suggests otherwise.
+There is nothing remotely improper about it.
+A similar telling indication is provided by the second part of section 156(2), viz section 156(2)(b) [section 6(2)(b) E & W].
+As explained at para 80 above, the magistrates power to make confiscation orders disappeared in POCA 2002.
+Accordingly it was replaced by a power to commit a defendant to the Crown Court for consideration of confiscation.
+The power is found in section 218 [section 70 E & W].
+This provides: 218 Committal by magistrates court (1) This section applies if a defendant is convicted of an offence by (a) a magistrates court, and (b) the prosecutor asks the court to commit the defendant to the Crown Court with a view to a confiscation order being considered under section 156.
+In such a case the magistrates court (a) must commit the defendant to the Crown Court in respect of the offence, and (b) may commit him to the Crown Court in respect of any other offence falling within subsection (3). (2) (3) An offence falls within this subsection if (a) the defendant has been convicted of it by the magistrates court or any other court, and (b) the magistrates court has power to deal with him in respect of it.
+If a committal is made under this section in (4) respect of an offence or offences (a) section 156 applies accordingly, and (b) the committal operates as a committal of the defendant to be dealt with by the Crown Court in accordance with section 219. (5) [provision for bail].
+This power is explicitly to commit with a view to confiscation.
+It is not the same as the ordinary (English) magistrates power to commit for sentence in an either way offence.
+This power extends to purely summary offences, where the magistrates could not commit for sentence, and it exists only where consideration of confiscation is the purpose.
+Once invoked, it does transfer also to the Crown Court the function of sentencing the defendant: see sections 218(4) and 219 [sections 70(4) & 71 E & W].
+But the sentencing power to be exercised by the Crown Court is not the same as it would be in the case of committal for sentence in an either way offence, for it is limited by section 219 to whatever (more limited) power the magistrates would have had by way of sentence [section 71(3)(b) E & W, with the variant that the magistrates may in that jurisdiction indicate under section 70(5) as to an either way offence that they would in any event have committed for sentence, and then the Crown Court has its own sentencing powers under section 71(2)(b).] In both jurisdictions it is to be noted the magistrates have no power to commit of their own motion with a view to confiscation.
+They can do so only where the Crown asks them to do so: section 218(1)(b) [section 70(1)(b) E & W].
+So the Act recognises explicitly the power of the Crown to make a decision either way about committal.
+It provides an election to the Crown.
+If some of the offences before the magistrates court are pre commencement and the Crown opts to request committal with a view to confiscation only those which are later, post commencement, offences, then only the POCA 2002 regime will apply.
+There is nothing at all improper in the Crown adopting this course.
+If it can do so in relation to convictions in the magistrates court there is no reason why it should not also do so, via the Aslam procedure, if the convictions occur in the Crown Court.
+It is true that the magistrates can, if asked by the Crown to commit offences A D with a view to confiscation, also do the same of its own motion in relation to offences E G.
+But there is no obligation to do so, and the result is that the Crowns decision as to which are to be committed is permitted to stand, and in practice in most cases will be determinative.
+Section 224(3) [section 76(3) E & W] deals with the non lifestyle offender.
+Under section 156(4)(c) [section 6(4)(c) E & W] his benefit falls to be assessed from offences constituting his particular criminal conduct.
+Those, by section 224(3) [section 76(3) E & W] are (a) the offence(s) concerned and (b) any other offence(s) of which he was convicted in the same proceedings. (A third element, under subsection (3)(c) is offences taken into consideration, but this provision does not assist on the present construction question.) An offence concerned is, by section 156(9) [section 6(9) E & W] to be read as an offence mentioned in section 156(2) [section 6(2) E & W].
+But section 224(3(b) demonstrates that there may be offences of which the defendant is convicted in the current proceedings which are not the offence(s) mentioned in section 156(2).
+That is a strong pointer against the appellants argument that section 156(2)(a), and thus article 7 of the Commencement Order, means all offences of which the defendant is convicted in the current proceedings.
+Rather, it supports the Crowns contention, that the offence(s) concerned are throughout those on which the Crown seeks to rely for the purposes of the statute, that is to say, to justify confiscation proceedings.
+It may just be possible to give section 224(3)(b) [section 76(3)(b) E & W] content without this construction.
+That might be possible if it could be read as intended only to deal with left behind offences, that is to say ones of which the defendant was convicted in the magistrates court (and thus in the present proceedings) but in respect of which he was not committed for confiscation.
+But if this is all it is for, it might have been expected to refer to magistrates offences specifically.
+Next, the suggested eventuality is unlikely, for if the Crown asks for the defendant to be committed with a view to confiscation in respect of offences A D, and there are also benefit generating offences E G, it is highly unlikely that the Crown would not seek committal in respect of all of them, unless of course the complication exists that some of the offences are pre commencement, and it is necessary to exercise the Aslam procedure.
+Thirdly, it is very significant that the Scottish section of POCA 2002 includes wording identical to section 224(b)(3): see section 143(3)(b).
+That is because the provisions as to general and particular criminal conduct are identical for each of the three national jurisdictions.
+But in Scotland there is no question of committal by justices of the peace (or anyone else) for consideration of confiscation.
+In Scotland, confiscation follows on conviction either in the High Court or before the Sheriff: section 92, and especially section 92(13).
+Confiscation in Scotland is dealt with by the court of conviction, whether the High Court or the Sheriff Court: section 92(1).
+Since there is no question of committal there is therefore no equivalent of sections 218 (NI) and 70 (England and Wales).
+So 224(3)(b) cannot have been intended to refer to left behind or un committed offences because if it were, there would be no occasion for the same words in the Scottish section.
+I do not think that the operation of the group of provisions found in sections 163 165 [sections 13 15 E&W] is in any way impaired by the construction of the statute here explained.
+As a matter of general sentencing principle, a court which contemplates fining a defendant for any offence before it is bound to take into account his means to pay.
+A confiscation order made, triggered by whichever offences, will be relevant to those means, in relation to any offence for which a fine is being considered.
+Likewise, as a matter of general sentencing principle a court ought in any event to sentence a defendant for all the offences before it at the same time, unless there is a reason to do otherwise.
+For the reasons explained above at para 84, I do not think that the consequence of this construction of POCA is that it is mandatory for the Crown, in a case where the indictment contains both pre and post commencement offences, to exercise the Aslam election to nominate only the latter for the purposes of asking the court to proceed to confiscation.
+There may well be cases where this is inappropriate, for example where the great majority of offences, or the most serious, are pre commencement.
+But in such a situation, where the earlier offences are relied on, the court will, according to the Commencement Order, proceed under the earlier regime.
+To the extent that the appellants argued that the effect of section 224(3)(b) is, unless their preferred construction is correct, to defeat the aim of confining POCA 2002 to post commencement offences, this is not so because article 9 of the Commencement Order [applicable also to E & W] specifically provides that conduct which constitutes an offence committed before the commencement date is not particular criminal conduct under section 76(3) or 224(3).
+That provision in the Commencement Order is likewise a good indication of the assumption that there might be offence(s) of which the defendant is convicted in the current proceedings which are not the offence(s) within section 156(2) [section 6(2) E & W].
+A similar indication is given by article 8(2) [article 7(2) E & W].
+This provides that when considering the two new routes to treating the defendant as a lifestyle offender (commission of a specified offence or of an offence committed over a six month period) pre commencement offences are to be ignored (see para 90 above).
+But if, as the appellants contend, every case in which there is a pre commencement offence in the present proceedings must for that reason alone be dealt with under the old 1995/96 regime, this stipulation in the Commencement Order would simply not be necessary.
+The same applies to the stipulation in article 8(3) [article 7(3) E & W] which excludes pre commencement offences from the course of criminal conduct (three additional offences and thus four in all) rule.
+I agree of course that subordinate legislation cannot control the meaning of the primary statute, but where, as here, the primary and subordinate legislation are part of a single scheme to substitute one statutory regime for another, and are plainly intended to operate in tandem, it is not irrelevant to take account of indications of consistency between them.
+If the appellants contention were correct, and the earlier confiscation regime has to be applied wherever there is a single pre commencement offence on the indictment (or before the magistrates) even if it is not relied on for confiscation, it would follow that that rule would have to apply even if the pre commencement offence could never, even arguably, have generated a benefit, and thus could never, even arguably, have had the slightest relevance to the issue of confiscation.
+Of course, in order to appear on the same indictment, in the Crown Court in Northern Ireland or in England and Wales at least, the offences have to satisfy the rules of joinder to be found in rule 21 of the Crown Court Rules (Northern Ireland) 1979 [Criminal Procedure Rules 2014, rule 14.2(3) for E & W].
+But it is not difficult to imagine circumstances in which the earlier and the later offences would be a series of offences of the same or similar character for the purpose of these rules.
+There simply has to be a sufficient nexus between the counts, which do not at all have to be for the same form of criminal charge; see for the proper approach see R v Kray (1969) 53 Cr App R 569 and Ludlow v Metropolitan Police Comr [1971 AC 29.
+Sometimes acquisitive offences are part of a series of offences of abuse for example by carers.
+Count 1 may well charge an assault on the elderly person in January 2003, whilst counts 2 5 charge thefts from her bank account starting in April of the same year.
+A fire raiser may have committed a series of arsons prior to March 2003, which are all offences from which there is no arguable benefit, but the last in the series might be setting fire to his own house, followed by an insurance claim.
+But in these and similar cases, if the appellants are right, the offences referred to in section 156 or E & W 6 will include the earlier non benefit ones, and the confiscation proceedings in relation to the only benefit generating offences, all committed after March 2003, would have to be conducted under the earlier regimes.
+Even more oddly, the same would be true of a serial fraudster whose first offence was an unsuccessful attempt, committed before March 2003, followed by a succession of similar frauds which succeeded, all committed after that date.
+There is no rhyme or reason for this and such an outcome might well be termed absurd.
+Conclusion
+For these reasons, I agree with Lord Kerr that the appellants arguments fail.
+The offences referred to in sections 156 and E & W 6 are those on which the Crown relies as relevant to the possibility of confiscation.
+The context of POCA 2002, considered separately, and also together with its Commencement Order, shows that the construction applied in Simpson, Aslam, Stapleton and Aniakor is correct.
+The important rule that penal statutes must be construed strictly so as to avoid any possible unfairness to those potentially penalised provides no reason to the contrary.
+The consequence is that these appeals must be dismissed.
+Postscript: The powers of the Court of Appeal to substitute
+Although the question does not, in consequence, arise, this case ought not to be concluded without some reference to it.
+The argument put to this court by the appellants was that if they were correct, and the order in the present cases was made under the wrong legislation, the Court of Appeal had no power to put the error right by substituting an order, if satisfied that it was in the correct sum, under the correct statutory regime.
+In the present case the Crown had conceded in the court below that substitution was not available, and having taken that stand did not ask this court to permit it to withdraw the concession.
+Since the point was in consequence not argued, it is better not to express a concluded view about it.
+Equally, however, it ought not to be assumed that the concession made, and the appellants supportive argument, were correct.
+The appellants right of appeal is given by section 8 of the Criminal Appeal Act (Northern Ireland) 1980: 8.
+A person convicted on indictment may appeal to the Court of Appeal against the sentence passed on his conviction, unless the sentence is one fixed by law.
+The equivalent provision in England and Wales is section 9 of the Criminal Appeal Act 1968, and in that jurisdiction section 10 makes clear that the same right of appeal exists when a defendant is dealt with by the Crown Court after committal for sentence to that court by the magistrates.
+Section 30(3)(a) [section 50(1)(d) Criminal Appeal Act 1968 for E & W] expressly includes a confiscation order in the expression sentence for this purpose, confirming the earlier decision in R v Johnson.
+On an appeal against sentence, the powers of the Court of Appeal include the power, if quashing the sentence, to impose such alternative sentence as is available in law.
+Section 10(3) of the Criminal Appeal Act Northern Ireland 1980 provides: (3) On an appeal to the Court against sentence under section 8 or 9 of this Act the Court shall, if it thinks that a different sentence should have been passed, quash the sentence passed by the Crown Court and pass such other sentence authorised by law (whether more or less severe) in substitution therefor as it thinks ought to have been passed; but in no case shall any sentence be increased by reason or in consideration of any evidence that was not given at the Crown Court.
+The equivalent provision in England and Wales is section 11(3) Criminal Appeal Act 1968 which is in the same terms except that they are subject to the proviso that the defendant shall not, taking the case as a whole, be dealt with more severely than he was below.
+In the particular case of confiscation orders, the Criminal Appeal Acts have been amended to enable the Court of Appeal, instead of substituting its own order, to remit the case to the Crown Court.
+Section 10(3A) [section 11(3A) in E & W] provides: (3A) Where the Court of Appeal exercises its power under subsection (3) to quash a confiscation order, the Court may, instead of passing a sentence in substitution for that order, direct the Crown Court to proceed afresh under the relevant enactment.
+This power is very useful when there may be a need for the Crown Court to take fresh evidence to deal with the import of the judgment of the Court of Appeal.
+Where a case is thus remitted to the Crown Court, the Criminal Appeal Acts have consequential provisions.
+They include section 10(3C) [section 11(3D) E & W].
+This provides, inter alia, that: relevant enactment in relation to a confiscation order quashed under subsection (3), means the enactment under which the order was made.
+The effect of this last provision, whether intended or not, is that when remitting a confiscation case the Court of Appeal is bound to direct the Crown Court to apply the same statutory regime that it did before.
+Section 10(3C) is the foundation of the argument of the appellants in the present case, to the effect that if their confiscation orders had had to be quashed on the grounds that they were made under the wrong statute, it would not be possible for the Court of Appeal to substitute an order under the right legislation.
+This, however, by no means necessarily follows.
+On its face, section 10(3C) only applies when the Court of Appeal is remitting the case under the new power to do so.
+Its longstanding and pre existing power simply to quash and substitute under section 10(3) is arguably quite unaffected.
+When dealing with a confiscation order which is found to contain some error justifying its quashing, it is not bound to remit the case to the Crown Court; it simply has power to do so if it wishes.
+If it chooses not to do so, section 10(3C) is arguably irrelevant.
+At least where the Court of Appeal can apply the findings of fact and the decisions on the evidence made by the Crown Court, there may be no reason at all why it should not, in a proper case, quash an order if made under the wrong legislation and substitute an order under the right statutory scheme, and it is relevant to note that this is the practice of the Court of Appeal, Criminal Division, in England and Wales see for example R v Lazarus [2004] EWCA Crim 2297; [2005] 1 Cr App R (S) 96 and R v Bukhari [2008] EWCA Crim 2915; [2009] 2 Cr App R (S) 18.
+LORD REED: (dissenting) (with whom Lord Mance agrees)
+The first appellant, Ms McCool, pleaded guilty at Derry Crown Court to four counts on an indictment.
+The first count was of false accounting contrary to section 17(1)(a) of the Theft Act (Northern Ireland) 1969, committed on 26 September 1990.
+The remaining counts were of making false declarations with a view to obtaining benefits contrary to section 105A(1) of the Social Security Administration (Northern Ireland) Act 1992, committed on dates between 28 November 2003 and 10 August 2010.
+The second appellant, Mr Harkin, appeared on the same indictment, and pleaded guilty to seven counts of offences under section 105A(1) of the 1992 Act, committed on 16 December 1999 (count 5) and on six other dates between 20 October 2005 and 3 August 2009.
+At sentencing, the court was asked by the prosecutor to proceed with confiscation proceedings pursuant to section 156(3) of the Proceeds of Crime Act 2002 (POCA).
+Prosecutors statements were subsequently served on the appellants.
+In an effort to avoid the problem which has given rise to these appeals, the statement served on the first appellant stated, in relation to the calculation of the benefit obtained: I have decided not to include the first charge on the bill of indictment (this is the first charge in relation to the defendant) for confiscation purposes and as such I have amended the Income Support overpayment period to commence from 28 November 2003.
+The statement served on the second appellant contained a similar statement in respect of count 5.
+The overpayment period was therefore calculated as if it had commenced on 20 October 2005.
+The explanation for this apparent generosity on the part of the prosecutor lies in the transitional provisions governing POCAs entry into force in Northern Ireland.
+It was thought that, by leaving out of account the offences committed before POCA came into force, the remaining offences could then be brought within POCAs ambit.
+The principal issue in the appeal is whether that manoeuvre has succeeded in achieving its purpose, or whether the presence of the earlier offences on the indictment means that all the offences properly fall within the scope of earlier confiscation legislation.
+The relevant provisions of POCA
+POCA contains broadly similar sets of provisions dealing with confiscation in England and Wales (Part 2: sections 6 to 91), Scotland (Part 3: sections 92 to 155) and Northern Ireland (Part 4: sections 156 to 239).
+Section 156 is the introductory section of Part 4, dealing with Northern Ireland: 156 Making of order (1) The Crown Court must proceed under this section if the following two conditions are satisfied. (2) The first condition is that a defendant falls within either of the following paragraphs (a) he is convicted of an offence or offences in proceedings before the Crown Court; (b) he is committed to the Crown Court in respect of an offence or offences under section 218 below (committal with a view to a confiscation order being considered). (3) The second condition is that (a) this section, or (b) the prosecutor asks the court to proceed under the court believes it is appropriate for it to do so. (4) The court must proceed as follows it must decide whether the defendant has a (a) criminal lifestyle; (b) if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct; (c) if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct. (5) If the court decides under subsection (4)(b) or (c) that the defendant has benefited from the conduct referred to it must (a) decide the recoverable amount, and (b) make an order (a confiscation order) requiring him to pay that amount. (6) But the court must treat the duty in subsection (5) as a power if it believes that any victim of the conduct has at any time started or intends to start proceedings against the defendant in respect of loss, injury or damage sustained in connection with the conduct. (7) The court must decide any question arising under subsection (4) or (5) on a balance of probabilities. (8) The first condition is not satisfied if the defendant absconds (but section 177 may apply). (9) References in this Part to the offence (or offences) concerned are to the offence (or offences) mentioned in subsection (2).
+For reasons which will appear, section 156(9) is of particular importance to the issue in this appeal.
+It provides a definition of the phrase the offence (or offences) concerned, where it appears in Part 4: a definition which is repeated in section 236(1).
+The phrase is defined as referring to the offence or offences mentioned in section 156(2).
+Section 156(2) applies to a defendant who (a) is convicted of an offence or offences in proceedings before the Crown Court, or (b) is committed to the Crown Court in respect of an offence or offences under section 218.
+Where the defendant has been convicted of an offence or offences in proceedings before the Crown Court, the offence (or offences) concerned is or are therefore the offence or offences of which he has been convicted in those proceedings.
+Where the defendant has been committed to the Crown Court in respect of an offence or offences under section 218, the offence or offences concerned is or are the offence or offences in respect of which he has been committed.
+There is nothing in section 156(2) or (9) which indicates that the meaning of the words the offence (or offences) concerned is limited in any other way.
+Section 156 sets out the steps which the Crown Court must follow where a defendant falls within either section 156(2)(a), because he has been convicted of an offence or offences in proceedings before that court, or section 156(2)(b), because he has been committed to that court in respect of an offence or offences under section 218, and, in accordance with section 156(3), either the prosecutor asks the court to proceed under section 156, or the court itself considers it appropriate to do so.
+Under section 156(4), the court has first to decide whether the defendant has a criminal lifestyle, because the answer to that question affects the subsequent steps to be taken.
+If he has a criminal lifestyle, it must then decide whether he has benefited from what is termed his general criminal conduct.
+If he does not have a criminal lifestyle, it must decide whether he has benefited from what is termed his particular criminal conduct.
+If the defendant has benefited either from his general criminal conduct or from his particular criminal conduct, as the case may be, the court is then required by section 156(5) to decide what is termed the recoverable amount and to make a confiscation order requiring him to pay that amount.
+It is to be noted that the object of the statutory scheme is to deprive the defendant of the benefit obtained from conduct: not to deprive him of the benefit obtained from any particular offence or offences of which he has been convicted.
+The remaining provisions of Part 4 flesh out that general scheme.
+In particular, section 157(1) defines the recoverable amount, subject to exceptions, as an amount equal to the defendants benefit from the conduct concerned.
+Section 157(2) however limits the recoverable amount to the available amount (defined by section 159), where that is less than the defendants benefit from the conduct concerned.
+Section 158 is concerned with the defendants benefit from the conduct concerned.
+The court is required to take account of conduct occurring up to the time it makes its decision, and of property obtained up to that time.
+Section 160 applies where the court decides that the defendant has a criminal lifestyle.
+It requires the court to make a number of assumptions for the purpose of deciding whether he has benefited from his general criminal conduct, and deciding the amount of his benefit from the conduct.
+These include an assumption that any property transferred to him at any time after the relevant day was obtained by him as a result of his general criminal conduct: the transfer need not be related to any offence of which he has been convicted.
+The relevant day is the date six years before proceedings for the offence concerned were started against the defendant, or if there are two or more offences and proceedings for them were started on different days, the earliest of those days.
+In this context, the relevance of the offence (or offences) concerned, as defined in section 156(2) and (9), is therefore to fix how far back POCA can bite on property obtained by a defendant with a criminal lifestyle.
+It can go back six years from the date on which proceedings were started for the earliest of those offences.
+Section 163 explains the effect of a confiscation order on the courts other powers.
+Under section 163(1), if the court makes a confiscation order it must proceed as mentioned in subsections (2) and (4) in respect of the offence or offences concerned.
+In terms of section 163(2), the court must take account of the confiscation order before it imposes a fine on the defendant, or makes any other order involving payment or forfeiture by the defendant, apart from a compensation order.
+Subject to that provision, the court is required by section 163(4) to leave the confiscation order out of account in deciding the appropriate sentence for the defendant.
+If the court makes both a confiscation order and a compensation order against the same person in the same proceedings, and it believes that he will not have sufficient means to satisfy both orders in full, section 163(5) provides for the potential shortfall in payment of the compensation order to be paid out of sums recovered under the confiscation order.
+The intended recipient of the compensation is thus protected against the risk of a shortfall, and the defendant is also protected against the risk of penal consequences of a failure to satisfy the confiscation order.
+In this context, the relevance of the offence or offences concerned is to define the scope of those protections.
+It is to be noted that these provisions make sense on the footing that the offences concerned encompass all the offences of which the defendant has been convicted in the proceedings in the Crown Court, or all the offences in respect of which he has been committed to that court.
+It makes sense to regulate the relationship between the confiscation order and any other financial orders made by the Crown Court in the same proceedings, since the confiscation order can affect the defendants ability to meet any other financial order, and vice versa.
+That is so, whether all of the offences concerned were offences involving financial gain or not.
+Section 164 allows the court either to proceed with confiscation proceedings before it sentences the defendant for the offence (or any of the offences) concerned, or to postpone confiscation proceedings for up to two years starting with the date of conviction, or potentially longer where there is an appeal or if there are exceptional circumstances.
+The date of conviction is defined as the date on which the defendant was convicted of the offence concerned, or if there are two or more offences and the convictions were on different dates, the date of the latest.
+In practice, confiscation proceedings are usually postponed, often for a substantial period.
+This provision again makes sense on the footing that the offences concerned encompass all the offences of which the defendant has been convicted in the proceedings in the Crown Court, or all the offences in respect of which he has been committed to that court.
+Like section 163, it reflects the potential relationship between the courts function of sentencing the defendant for the offences of which he has been convicted, or in respect of which he has been committed, and the confiscation order which it may also make.
+Section 165 explains the effect of postponement, and contains analogous provisions to section 163 in respect of the relationship between the confiscation proceedings and any sentence imposed during the postponement period for the offence (or any of the offences) concerned.
+This group of provisions (which is replicated elsewhere in Part 4 of POCA in a variety of contexts, and is also replicated in the corresponding provisions for the other parts of the United Kingdom) seems to me to be particularly difficult to reconcile with an interpretation of the offence (or offences) concerned which would restrict that phrase to only some of the offences before the court.
+The language of these provisions is prescriptive.
+I have difficulty seeing how they might be interpreted as excluding offences which the prosecution had elected to leave out of account for the purpose of assessing the benefit obtained by the defendant.
+If, however, all the offences before the court fall within the scope of the phrase in this context, then how can it be given a more restricted meaning in the context of section 156(2) and (9), given the definitional status of those provisions?
+Under section 166, in a case where the court is proceeding under section 156 at the request of the prosecutor, he must give it a statement of information within the period the court orders.
+Similarly, in a case where the court is proceeding under section 156 of its own motion, it can order the prosecutor to give it a statement of information within the period ordered.
+The statement must include the matters which are relevant to the making of a confiscation order, including whether the defendant has a criminal lifestyle, whether he has benefited from his general or particular criminal conduct as the case may be, and his benefit from the conduct.
+The defendant can then respond to the prosecutors statement in accordance with section 167.
+Section 218 is concerned with committal by the magistrates court.
+It applies if a defendant is convicted of an offence by a magistrates court, and the prosecutor asks the court to commit the defendant to the Crown Court with a view to a confiscation order being considered under section 156.
+In such a case, the magistrates court must commit the defendant to the Crown Court in respect of the offence, and may commit him to the Crown Court in respect of any other offence of which he has been convicted, and in respect of which the magistrates court has power to deal with him.
+The latter provision enables the Crown Court to deal with the defendant in relation to the same offences in respect of which he could be dealt with in the magistrates court, and thus enables the relationship between sentencing and confiscation proceedings to be regulated in accordance with sections 163 to 165.
+Section 219 confirms the power of the Crown Court to sentence the defendant for all the offences in respect of which he has been committed.
+Finally, in relation to the provisions of POCA, it is necessary to note a number of provisions concerned with interpretation.
+Section 223 defines the term criminal lifestyle.
+Under section 223(2), a defendant has a criminal lifestyle if the offence (or any of the offences) concerned satisfies any of the following tests: it is specified in Schedule 5; it constitutes conduct forming part of a course of (a) (b) criminal activity; it is an offence committed over a period of at least six (c) months and the defendant has benefited from the conduct which constitutes the offence.
+These tests are alternatives.
+In relation to test (a), it is sufficient that any of the offences concerned is specified in Schedule 5.
+That schedule specifies a number of offences, including the unlawful supply of controlled drugs, and possession of a controlled drug with intent to supply.
+It is irrelevant to test (a) whether the defendant has made any financial gain from an offence falling within Schedule 5, or whether he has made such a gain from any of the other offences of which he has been convicted in the proceedings in the Crown Court, or in respect of which he has been committed to that court.
+In relation to test (b), section 223(3) provides that conduct forms part of a course of criminal activity if the defendant has benefited from the conduct and: (a) in the proceedings in which he was convicted he was convicted of three or more other offences, each of three or more of them constituting conduct from which he has benefited, or (b) in the period of six years ending with the day when those proceedings were started (or, if there is more than one such day, the earliest day) he was convicted on at least two separate occasions of an offence constituting conduct from which he has benefited.
+In a case where the defendant was convicted of an offence or offences in proceedings in the Crown Court, test (b) is therefore satisfied by virtue of section 223(3)(a) if the defendant benefited from conduct constituting any of those offences, and was also the convicted in those proceedings of three or more other offences constituting conduct from which he benefited.
+The effect of section 223(3)(b) is that he will also have a criminal lifestyle if he benefited from conduct constituting any of the offences of which he was convicted in the proceedings in the Crown Court, and in addition he was convicted on at least two separate occasions, during the six years before those proceedings were started, of another offence constituting conduct from which he benefited.
+Section 223(3) operates in a similar way where the defendant has been committed to the Crown Court by the magistrates court in respect of an offence or offences, and benefited from conduct constituting any of those offences.
+It is therefore unnecessary for the defendant to have made a financial gain from any of the other offences of which he has been convicted in the proceedings in the Crown Court, or in respect of which he has been committed to that court.
+The same is also true in relation to test (c).
+It is sufficient that any of the offences concerned was committed over a period of at least six months and the defendant benefited from the conduct which constituted that offence.
+In relation to both test (b) and test (c), section 223(4) provides that an offence does not satisfy the test unless the defendant obtains relevant benefit of not less than 5,000.
+The expression relevant benefit is defined for the purposes of test (b) by section 223(5).
+It means: (a) benefit from conduct which constitutes the offence; (b) benefit from any other conduct which forms part of the course of criminal activity and which constitutes an offence of which the defendant has been convicted; (c) benefit from conduct which constitutes an offence which has been or will be taken into consideration by the court in sentencing the defendant for an offence mentioned in paragraph (a) or (b).
+A broadly similar definition (subject to the omission of paragraph (b)) applies for the purposes of test (c).
+Accordingly, even if the defendant has benefited from any of the offences concerned, and test (b) or (c) is potentially satisfied, it remains necessary to investigate the amount of the benefit and to ascertain whether it is at least 5,000.
+Section 224 defines criminal conduct, general criminal conduct, particular criminal conduct and benefit.
+Criminal conduct is conduct which constitutes an offence in Northern Ireland, or would constitute such an offence if it occurred there.
+General criminal conduct is all the defendants criminal conduct.
+It is immaterial whether it occurred before or after the passing of POCA, and whether property constituting a benefit from conduct was obtained before or after the passing of POCA (section 224(2)).
+Particular criminal conduct is all the defendants criminal conduct which falls within the following paragraphs of section 224(3): (a) conduct which constitutes the offence or offences concerned; (b) conduct which constitutes offences of which he was convicted in the same proceedings as those in which he was convicted of the offence or offences concerned; (c) conduct which constitutes offences which the court will be taking into consideration in deciding his sentence for the offence or offences concerned.
+So far as paragraph (a) is concerned, it follows from section 156(2) and (9) that the offences concerned are the offences of which the defendant was convicted in the proceedings in the Crown Court, or in respect of which he was committed to the Crown Court for confiscation proceedings.
+Paragraph (b) envisages a situation where the defendant has been convicted in the same proceedings of offences other than the offence or offences concerned.
+It must therefore be concerned with offences of which he was convicted in the magistrates court but in respect of which he was not committed to the Crown Court.
+Under section 224(4), a person benefits from conduct if he obtains property as a result of or in connection with the conduct.
+Returning to section 156, it follows from the later provisions that, at the time when the Crown Court is required to proceed under that section, it will not know the answers to all, or possibly any, of the questions which that section requires it to decide.
+In particular, it may not be in a position to know whether the defendants conviction in the Crown Court of the offences concerned, or his committal by the magistrates court in respect of those offences, will or may result in the making of a confiscation order, or how the order may relate to any of those offences.
+Section 156 simply provides for a process to be put in train, which may or may not lead to the making of such an order.
+The transitional provisions
+The relevant transitional provision is article 4 of the Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, Savings and Amendment) Order 2003 (SI 2003/333) (the Order).
+So far as relevant, article 4 provides: 4(1) Section 156 of the Act (making of confiscation order) shall not have effect where the offence, or any of the offences, mentioned in section 156(2) was committed before 24 March 2003.
+The effect of article 4 is clear.
+Where the offence, or any of the offences, mentioned in section 156(2) was committed before 24 March 2003 (which was the commencement date of the relevant provisions), section 156 does not have effect, and POCA therefore does not apply.
+Instead, the position is regulated by article 11 of the Order, which provides for earlier legislation to continue to have effect.
+The offence or offences mentioned in section 156(2), as earlier explained, are the offence or offences of which the defendant has been convicted in the proceedings before the Crown Court, if the case falls within section 156(2)(a), or the offence or offences in respect of which he has been committed to the Crown Court, if the case is one in which the defendant has been committed under section 218.
+It follows that section 156 does not have effect, and POCA is therefore inapplicable, where that offence, of any of those offences, was committed before 24 March 2003.
+Instead, the previous law continues to apply.
+It follows that section 156 has no application to the case of either of the appellants.
+Article 4 cannot be obviated by the prosecutors ignoring those of the offences concerned which were committed before POCA came into force.
+The fact remains that the appellants were convicted of those offences in the proceedings before the Crown Court, and they are therefore among the offences concerned.
+It follows that the confiscation proceedings against the appellants should have proceeded under the legislation which was in force when the earliest of the offences concerned was committed.
+The confiscation orders made should therefore be quashed.
+Since the Crown conceded in the court below that the substitution of orders under the correct legislation was not possible, and it has not sought to withdraw that concession, it follows that the appeals should be allowed.
+Like Lord Hughes, I would wish to reserve my opinion as to whether the concession was rightly made.
+The reasoning of the majority
+The only matter which remains to be discussed is the reasoning by which a majority of this court have reached the opposite conclusion.
+Their judgments must speak for themselves, but so far as I understand them, they contain a number of different strands of reasoning.
+Their approach appears to be based first on a purposive interpretation of the words of the statute.
+As I shall explain, I respectfully disagree that the statute has the purpose which they attribute to it, and I do not in any event accept that such a strained interpretation of the statutory language can be justified by a purposive approach.
+Secondly, they support their interpretation of the statute by reference to the transitional provisions in the Order.
+That appears to me, with respect, to be an impermissible use of subordinate legislation, made under powers conferred by Parliament in POCA, to interpret the meaning of the provisions enacted by Parliament in POCA itself.
+Thirdly, the reasoning of the majority is also based in part on previous authorities, which appear to me to be distinguishable because they were concerned with the interpretation of a transitional provision contained in the primary legislation itself.
+The reasoning of the earlier authorities appears to me to be unsatisfactory in any event, and it has been subjected to cogent criticism (Thomas, (2005) Crim LR 145 and (2008) Crim LR 813).
+Purposive interpretation of the statute
+As I understand their reasoning, the majority of the court consider that it would be absurd if offences committed after the commencement of POCA were subject to an earlier confiscation regime.
+In their view, Parliament must have intended that all offences committed after the commencement of POCA which could generate confiscation orders should be dealt with under section 156.
+Having decided that that must have been Parliaments intention, the majority then construe the provisions of POCA so as to fulfil that intention.
+I see no absurdity.
+Given their natural meaning, and read with article 4 of the Order, section 156(2) and (9) of POCA achieve a rational purpose, which reflects two considerations identified by Lord Hughes.
+In the first place, POCA cannot apply to pre commencement offences, if retrospectivity, and a consequent breach of article 7 of the ECHR, is to be avoided.
+Otherwise, in Lord Hughes words, there would be impermissible retrospective operation of the criminal law (para 83).
+In the second place, practical difficulties are liable to arise if a court is required to apply different confiscation regimes in the same proceedings, where some counts relate to offences committed before the commencement date of POCA and some to offences committed after that date.
+In Lord Hughes words, there would also be likely to be a real risk of unfairness if a defendant faced the prospect of two different confiscation regimes being applied to him (para 84).
+It follows that pre commencement offences have to be dealt with under the previous confiscation regime in force at the time when they were committed, and that it is sensible that the same regime should also be applied to post commencement offences dealt with in the same proceedings.
+The natural way of achieving those objectives is to provide that in any case in which the defendant has been convicted in Crown Court proceedings of an offence committed before the commencement date, all the offences of which he has been convicted in those proceedings are to be governed by the confiscation regime in force at the time when the earliest offence was committed.
+Similarly, mutatis mutandis, in any case in which the defendant has been committed under section 218 in respect of an offence committed before the commencement date, and also of later offences.
+That is the effect of section 156(2) and (9) of POCA, read with article 4 of the Order.
+The interpretations of section 156 to which the majority are driven by their desire to avoid the supposed absurdity appear to me, with respect, not only to be strained beyond breaking point, but also to create anomalies of their own.
+As I understand Lord Kerrs judgment, he considers that, as a matter of construction of the statute, section 156(2) cannot apply to any offence committed before the date fixed for the entry into force of the provisions of Part 4 (which, in the event, was 24 March 2003).
+With respect, I cannot understand how that construction can be derived from the statutory wording.
+In my view, it requires the insertion of words which are not there, as the Court of Appeal acknowledged when it arrived at the same construction of the predecessor of section 156, as explained below.
+Furthermore, the logic of Lord Kerrs interpretation appears to be that one and the same court could undertake two or more different confiscation exercises in the same criminal proceedings: one, in respect of offences committed on or after 24 March 2003, under POCA, and others, in respect of earlier offences, under whichever confiscation regime was in force at the relevant time.
+That situation, it appears to me, might justifiably be described as anomalous.
+As I understand Lord Hughes judgment, he takes a different approach.
+He appears to interpret the phrase the offence (or offences) concerned defined by section 156(9) to mean the offence (or offences) mentioned in subsection (2) as if the definition referred to any offence (or offences) mentioned in subsection (2) in relation to which the condition mentioned in subsection (3)(a) is also satisfied (that condition being that the prosecutor asks the court to proceed under this section).
+Bearing in mind the clarity of section 156(9), and the level of detail and technicality which characterises the drafting of POCA, I find this hard to accept.
+Furthermore, the logic of Lord Hughes interpretation appears to be that, if pre commencement and post commencement offences are before one and the same court, the Crown must in effect forego any confiscation proceedings in respect of the pre commencement offences, and proceed only in respect of post commencement offences for whatever benefit they may yield.
+That is indeed what happened in the present case.
+It seems to me to be much more likely that the drafter of the transitional provisions intended to bring all the offences in any set of proceedings into one statutory confiscation scheme or the other.
+Then, at least, no offences would fall outside all confiscation regimes.
+The use of subordinate legislation in the construction of primary legislation
+The majority of the court also rely on their construction of a number of provisions in the Order, and more particularly the fact that they were substituted by different provisions shortly after the Order was made, as supporting their interpretation of section 156(2) and (9).
+With respect, this appears to me to be an example of using subordinate legislation to interpret the primary legislation under which it was made: an impermissible, and indeed illogical, method of statutory interpretation.
+The tail is wagging the dog.
+Even if I agreed with the majoritys construction of the Order, and the intention attributed to it, it follows that I would nevertheless reject this aspect of their reasoning.
+The Order cannot affect the meaning of section 156(2) and (9).
+But I am not in any event persuaded by their construction of the Order.
+The majority rely in particular on articles 8 and 9.
+In its original form, article 8 provided: 8.(1) This article applies where the court is determining under section 156(4)(a) of the Act whether the defendant has a criminal lifestyle. (2) The tests in section 223(2)(a) and (c) of the Act shall not be satisfied where the offence (or any of the offences) concerned was committed before 24 March 2003. (3) In applying the rule in section 223(5) of the Act on the calculation of relevant benefit for the purposes of section 223(2)(b) and (4) of the Act, the court must not take into account benefit from conduct constituting an offence which was committed before 24 March 2003. (4) Conduct shall not form part of a course of criminal activity under section 223(3)(a) of the Act where the offence (or any of the offences) concerned; or any one of the three or more offences mentioned (a) (b) in section 223(3)(a), was committed before 24 March 2003. (5) Conduct shall form part of a course of criminal activity under section 223(3)(b) of the Act, notwithstanding that any of the offences of which the defendant was convicted on at least two separate occasions in the period mentioned in section 223(3)(b) was committed before 24 March 2003.
+A different version of article 8 was substituted by the Proceeds of Crime Act 2002 (Commencement No 5) (Amendment of Transitional Provisions) Order 2003 (SI 2003/531) (the Amendment Order).
+The substituted provisions provide: 8.(1) This article applies where the court is determining under section 156(4)(a) of the Act whether the defendant has a criminal lifestyle. (2) Conduct shall not form part of a course of criminal activity under section 223(3)(a) of the Act where any of the three or more offences mentioned in section 223(3)(a) was committed before 24 March 2003. (3) Where the court is applying the rule in section 223(5) of the Act on the calculation of relevant benefit for the purposes of determining whether or not the test in section 223(2)(b) of the Act is satisfied by virtue of conduct forming part of a course of criminal activity under section 223(3)(a) of the Act, the court must not take into account benefit from conduct constituting an offence mentioned in section 223(5)(c) of the Act which was committed before 24 March 2003. (4) Conduct shall form part of a course of criminal activity under section 223(3)(b) of the Act, notwithstanding that any of the offences of which the defendant was convicted on at least two separate occasions in the period mentioned in section 223(3)(b) were committed before 24 March 2003. (5) Where the court is applying the rule in section 223(5) of the Act on the calculation of relevant benefit for the purposes of determining whether or not the test in section 223(2)(b) of the Act is satisfied by virtue of conduct forming part of a course of criminal activity under section 223(3)(b) of the Act, the court may take into account benefit from conduct constituting an offence committed before 24 March 2003. (6) Where the court is applying the rule in section 223(6) of the Act on the calculation of relevant benefit for the purposes of determining whether or not the test in section 223(2)(c) of the Act is satisfied, the court must not take into account benefit from conduct constituting an offence mentioned in section 223(6)(b) of the Act which was committed before 24 March 2003.
+The majority argue that the changes made to article 8 are consistent with their interpretation of section 156.
+As I have explained, I do not accept the logic of the argument.
+But I am not in any event persuaded that the inferences which the majority draw from the changes are justified.
+As it appears to me, the problem with article 8(2) of the Order in its original form was that POCA does not apply, by virtue of article 4(1), where the offence (or any of the offences) concerned was committed before 24 March 2003.
+There is therefore no question of section 223 of POCA applying in those circumstances, and article 8(2) was therefore otiose.
+Article 8(4)(a) of the Order was also otiose, for the same reason.
+Article 8(4)(b), on the other hand, could have applied in cases where the defendant was committed by the magistrates court.
+That view is consistent with the changes made.
+The provisions contained in articles 8(2) and 8(4)(a) of the Order did not appear in the Amendment Order.
+On the other hand, the terms of article 8(4)(b) of the Order reappeared as article 8(2) of the Amendment Order.
+I find it much more difficult to be certain of the thinking behind the replacement of articles 8(3) and (5) of the Order by articles 8(3) to (6) of the Amendment Order.
+Section 223(2)(b), (3), (4) and (5) of POCA form a complex group of provisions.
+The same is true of article 8(3) and (5) of the Order, and a fortiori of article 8(3) to (6) of the Amendment Order.
+An in depth analysis of these provisions would take this court into a minefield of difficulties.
+It would also take it beyond the scope of the parties submissions.
+In the circumstances, I do not express any view.
+So far as article 9 of the Order is concerned, it provides: Conduct which constitutes an offence which was committed before 24 March 2003 is not particular criminal conduct under section 76(3) or 224(3) of the Act.
+The majority suggest that that provision also supports their interpretation of section 156(2) and (9).
+I am not persuaded.
+The explanation of article 9, as it appears to me, is that particular criminal conduct is defined by sections 76(3) and 224(3) of POCA as including not only (a) conduct which constitutes the offence or offences concerned, but also (b) conduct which constitutes offences of which he was convicted in the same proceedings as those in which he was convicted of the offence or offences concerned, and (c) conduct which constitutes offences which the court will be taking into consideration in deciding his sentence for the offence or offences concerned.
+Since (b), interpreted as explained in para 138 above, and more plainly (c), could otherwise apply in respect of offences committed prior to the commencement of POCA, article 9 is necessary in order to exclude that possibility, consistently with the objectives explained in paras 146 148 above.
+Lord Hughes also relies on section 143(3)(b) of POCA, a provision applicable in Scotland which is in similar terms to section 224(3)(b).
+I have to acknowledge that, although section 224(3)(b) can be interpreted consistently with the approach which I have adopted to section 156(2) and (9), it is at least not obvious that section 143(3)(b) can also be interpreted consistently with that approach.
+This point has not, however, been the subject of argument, and I am reluctant to express a concluded view.
+I would not exclude the possibility that, in such a complex and technical piece of legislation, it is possible that the provisions applicable in England and Wales may have been replicated for Scotland, as for Northern Ireland, without noticing a material distinction.
+I am not, in the absence of fuller argument, inclined to accept that an apparent infelicity in the drafting of one of the Scottish provisions is a sufficient reason for departing from the natural meaning of section 156(2) and (9) and their equivalents for the other parts of the United Kingdom.
+Previous authority
+The majority place some reliance on three decisions of the Court of Appeal of England and Wales concerned with section 16(5) of the Proceeds of Crime Act 1995 (the 1995 Act), a transitional provision broadly analogous to article 4 of the Order.
+The 1995 Act operated by amending the Criminal Justice Act 1988 (the 1988 Act).
+Section 1 of the 1995 Act was analogous to section 156 of POCA.
+Section 16(5) provided: Section 1 above shall not apply in the case of any proceedings against any person where that person is convicted in those proceedings of an offence which was committed before the commencement of that section.
+The intended meaning and effect of section 16(5) could hardly have been made clearer.
+Where a person was convicted in any proceedings of an offence which was committed before the commencement of section 1, that section did not apply, with the result that it was the unamended version of the 1988 Act which generally applied.
+Where, on the other hand, all the offences of which the person was convicted were committed after the commencement of section 1, it was the 1995 Act (strictly speaking, the 1988 Act as amended by the 1995 Act) which applied.
+That straightforward interpretation of section 16(5) was however rejected by the Court of Appeal in a series of cases, on the ground that it led to absurd results: as to which, see paras 146 148 above.
+The first of these cases was R v Simpson [2003] EWCA Crim 1499; [2004] QB 118; [2003] 3 All ER 531; [2004] 1 Cr App R (S) 24, where a confiscation order made under the 1995 Act was challenged on the basis that one of the offences of which the appellant had been convicted in the relevant proceedings was committed before the commencement of section 1.
+The Court of Appeal considered it obviously an absurd result that an order could be made under the 1995 Act if a defendant were acquitted of an offence committed prior to the commencement date, but not if he were convicted of that offence.
+I see no absurdity: transitional provisions limiting the operation of penal provisions to offences committed after their entry into force are necessary in order to protect those who are convicted of earlier offences, not those who are acquitted of them.
+However, in order to avoid the supposed absurdity, the Court of Appeal read words into section 16(5): In our judgment section 16(5) has to be applied so that after the word offence there appears, the words in respect of which a confiscation order is or could be sought. (para 19)
+On the facts of the case, a confiscation order was not sought in respect of the offence in question; but there was no obvious reason why such an order could not be sought.
+The nature of the offence a VAT fraud did not in itself present any problem.
+More importantly, the Court of Appeals discussion of the issue was in any event obiter dictum, since it decided that the offence had actually been committed after the commencement of the 1995 Act: So in fact, the offence was committed after 1 November 1995.
+In any event the argument for the appellant, that the 1995 Act cannot be relied upon, fails on the facts. (para 20)
+The issue was considered again in R v Mohammed Aslam [2004] EWCA Crim 2801; [2005] 1 Cr App R (S) 116.
+In that case, the appellant had been convicted of numerous offences of dishonesty.
+At the confiscation hearing, it was pointed out that one of the offences had been committed before the 1995 Act came into force.
+The prosecution then disclaimed reliance on any benefit obtained as a result of that offence.
+The question was whether that cured the defect.
+Relying on Simpson, the Court of Appeal held that it did.
+The court noted that, in Simpson, a confiscation order could have been sought in respect of the offence in question.
+It concluded that the fact that the appellant had been convicted in the instant proceedings of a pre commencement count did not prevent the court from making a confiscation order under the 1995 Act where the pre commencement count was one which could not be the basis of confiscation proceedings, or if the prosecution had expressly abandoned any reliance on the pre commencement count for the purposes of a confiscation order.
+The Court of Appeal followed Aslam in R v Stapleton [2008] EWCA Crim 1308; (2009) 1 Cr App R (S) 38, stating that it could not properly say that the earlier decision was plainly wrong (para 7).
+The Court of Appeals approach in these cases raises a number of difficulties.
+First, and most importantly, it is inconsistent with the plain meaning of section 16(5) of the 1995 Act: a fact which the Court of Appeal acknowledged by effecting a judicial amendment of the provision.
+As amended by the Court of Appeal, section 16(5) permits the Crown to bring proceedings under the 1995 Act in circumstances where Parliament has directed that the proceedings are to be brought under the preceding legislation.
+That is not permissible under any canon of statutory construction.
+Secondly, the Court of Appeal was mistaken, as it respectfully appears to me, in thinking that the result of applying what Parliament had enacted was absurd, as explained earlier.
+Thirdly, the Court of Appeal was also mistaken, in my view, in thinking that the amount of a confiscation order under the 1995 Act could be restricted by the prosecution.
+Under the 1988 Act as amended by the 1995 Act, the court had to determine whether the defendant has benefited from any relevant criminal conduct (section 71(1A); emphasis supplied), and relevant criminal conduct was defined as meaning the offence of which the defendant had been convicted taken together with any other offences of a relevant description which are either (a) offences of which he is convicted in the same proceedings, or (b) offences which the court will be taking into consideration in determining his sentence for the offence in question (section 71(1D)).
+The prosecution could not, therefore, remove an offence of which the defendant had been convicted in the proceedings from the calculation by choosing not to rely on it: the court was under a statutory duty to assess the benefit arising from that offence in any event.
+There are at least three other difficulties with the approach of the Court of Appeal.
+First, it did not address the issues which arose, on its approach, from the role which the court itself has in bringing confiscation proceedings.
+By virtue of section 71(1)(b) of the 1988 Act, as substituted by section 1 of the 1995 Act, the court can initiate confiscation proceedings in respect of all the offences of which the defendant has been convicted in the proceedings if it considers that it is appropriate for it to do so.
+POCA contains an equivalent provision in section 156(3)(b).
+One might ask, in the first place, how that power bears on the assumption, implicit in the Court of Appeals reasoning, that the court should defer to the prosecutors decision not to proceed in respect of pre commencement offences.
+The whole point of the substitution of section 71(1)(b) was to enable the court to act independently of the prosecution.
+Further, and in any event, if in any case the court decides to exercise its power to initiate confiscation proceedings, can it too ignore certain offences so as to secure the application of the most draconian confiscation regime available? Under what power would it do so? If it cannot, does it not follow that the supposedly absurd outcome must indeed have been intended? These issues appear to me to be equally relevant to the approach adopted by the majority in the present case.
+Secondly, the Court of Appeal did not address the issue discussed in para 129 above, which also arose in relation to the corresponding provisions of the 1988 Act both as enacted and as amended.
+This issue is equally relevant to the approach adopted by the majority in the present case.
+Thirdly, in so far as the Court of Appeals approach, and that of the majority in the present case, is premised on the assumption that it is always possible to identify particular offences as being offences in respect of which a confiscation order can or cannot be sought (offences which would qualify for applications for a confiscation order, offences which can be dealt with under the Act, offences in respect of which confiscation orders could be made or offences which could generate confiscation orders, as Lord Kerr describes them in paras 5, 13, 16 and 17), before any inquiry has been made into whether the defendant has in fact obtained property as a result of, or in connection with, the offence, that does not appear to me to be a valid assumption.
+As explained earlier, a confiscation order is not sought in respect of offences, but in respect of the benefit obtained from criminal conduct, which may or may not have constituted an offence or offences of which the defendant has been convicted in the proceedings in question.
+Whether a given offence of which the defendant has been convicted may turn out to be one which is relevant to the confiscation order may not be readily apparent at the time when the confiscation proceedings are initiated.
+For example, a defendant does not usually obtain property as a result of or in connection with an assault; but sometimes he does.
+A defendant usually obtains property as a result of, or in connection with, the possession of a controlled drug with intent to supply; but not always.
+In short, the construction of section 156 of POCA, or of its equivalent in the earlier legislation, cannot be predicated on an assumption that whether a conviction of a particular offence will lead to the making of a confiscation order, or will affect the amount specified in the order, can be determined at the time when the confiscation proceedings are initiated.
+The proof of the pudding is in the eating.
+Conclusion
+For all these reasons, I would have answered the certified question in the negative, and allowed the appeal.
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+This appeal raises an important question of planning law.
+A planning authority foresees and plans for significant growth in its area.
+Major investment in transport infrastructure is required to accommodate the aggregate of the planned development.
+The planning authority seeks to achieve this investment by adopting a policy in its development plan which in substance requires developers to enter into planning obligations with it to make financial contributions to the pooled fund to be spent on the infrastructure, including interventions at places where a particular development has only a trivial impact.
+Is such a policy within the existing powers of the planning authority under current planning legislation?
+Factual background
+The Aberdeen City and Shire Strategic Development Planning Authority (the Authority) has the responsibility for preparing a strategic development plan for its area.
+The Authority foresaw the need for significant new and improved infrastructure to accommodate the cumulative impact of new development for which it planned.
+There were already proposals for transport infrastructure which involved major public sector investment, including the Aberdeen Western Peripheral Route (AWPR), new bridges, park and ride sites, making the A96 into a dual carriageway road and the creation of twin tracks on significant parts of the Aberdeen Inverness railway line, all of which was to be paid for out of public funds.
+In 2010 the North East of Scotland Transport Partnership (Nestrans) commissioned a cumulative transport appraisal for the area (the CTA), in which it estimated that 86.6m was required on top of already committed public sector investment in order to fund a package of infrastructure developments, which it identified, to address the cumulative impact of the proposed new development in the area.
+In December 2011 the Authority approved non statutory supplementary planning guidance which proposed the establishment of a Strategic Transport Fund (the Fund).
+In February 2013 the Authority published its proposed strategic development plan.
+In that plan the Authority stated that it intended to prepare supplementary guidance in support of the plan.
+This guidance would allow for the Fund to deliver the transport projects which were needed to deal with the combined effect of new development in four identified strategic growth areas within the Aberdeen Housing Market Area.
+The Authority stated that it would need to secure a higher percentage of the increase in land values, which resulted from the grant of planning permission, than it had in the past in order to be able to create sustainable mixed communities.
+Elsick Development Ltd (Elsick) proposes to develop approximately 4,000 houses together with commercial, retail and community facilities at Elsick, near Stonehaven.
+Elsicks site is located within the southerly of the four strategic growth areas.
+In November 2011 Elsick objected to the draft supplementary planning guidance while it was subject to consultation.
+Elsick also objected to the proposed strategic development plan and sought to have the reference to the Fund removed from that plan on the ground that it was contrary to the guidance of the Scottish Ministers on planning obligations which is set out in circular 3/2012, Planning Obligations and Good Neighbour Agreements (the Circular).
+The Circular advised planning authorities to seek to have developers enter into planning obligations only if the obligations met specified tests.
+These tests were that the obligations (i) were necessary to make the proposed development acceptable in planning terms (para 15), (ii) served a planning purpose (para 16), (iii) related to the proposed development either as a direct consequence of the development or arising from the cumulative impact of development in the area (paras 17 19), (iv) fairly and reasonably related in scale and kind to the proposed development (paras 20 23), and (v) were reasonable in all other respects.
+Elsicks principal concern was with (iv); Elsick asserted that the contribution to the Fund which the proposed plan envisaged was out of all proportion to the demands which its development would make on the infrastructure which expenditure from the Fund was to improve.
+In the meantime, on 30 September 2013 Elsick entered into a planning obligation under section 75 of the Town and Country Planning (Scotland) Act 1997 (as amended) (the 1997 Act) with Aberdeenshire Council (the Council) to contribute to the Fund in terms of the draft non statutory supplementary planning guidance or any revision or replacement of it in the proposed strategic development plan, but the agreement also provided that no contributions to the Fund needed to be paid if the supplementary planning guidance were found to be invalid.
+On 2 October 2013 the Council granted outline planning permission for the development and detailed planning permission for a first phase of 802 houses and other facilities.
+The proposed strategic development plan was examined by a reporter appointed by the Scottish Ministers.
+In his report dated 21 January 2014 the reporter stated that it was right that the principle of the Fund should be established in the development plan and concluded that the CTA had demonstrated that the overall traffic growth, which the development promoted in the plan would create, would have harmful effects unless there were mitigation measures.
+He expressed concern that the mechanism for raising contributions to the Fund did not comply with national policy in the Circular because there was not a sufficiently clear and direct relationship between the development supplying the contribution and the infrastructure to be delivered.
+He advised that para 5.9 of the proposed plan be amended to establish that the Fund will only be used to gather contributions towards infrastructure improvements that are related to the developments concerned and strictly necessary in order to make any individual development acceptable in planning terms.
+The Strategic Development Plan was amended to take account of the reporters comments.
+As so amended the relevant paragraphs of the Plan stated: 5.8 Developers will have to accept the need for contributions towards necessary infrastructure, services and facilities within their own site.
+However, in cases where development has wider effects, we will have to secure contributions to deal with these as well, although the public sector will also need to make an important contribution. 5.9 We will prepare supplementary guidance in support of this plan.
+This will allow (through a Strategic Transport Fund) transport projects which are needed as a result of the combined effect of new development to be funded and delivered.
+We will look for contributions from housing, business, leisure developments in the strategic growth areas within the Aberdeen Housing Market Area, (detailed criteria will be set out in the supplementary guidance).
+We will only use contributions to support projects that are related to the developments concerned and that are necessary to make those developments acceptable in planning terms. retail and commercial industrial,
+The Authority then resolved to convert the non statutory supplementary planning guidance into statutory guidance.
+On 12 December 2014 the Authority issued a consultation draft of the proposed statutory guidance.
+In a report to the meeting of the Authority which approved the consultation draft it was explained that the consultants who had prepared the CTA had re presented table 7.2 of the study, which I discuss in more detail in para 16 below, to show a clear and direct link between the development providing a contribution to the Fund and the infrastructure improvement to be delivered.
+The report also stated that the supplementary guidance was based on a strategic level evidence base and uses this to derive appropriate contribution levels for individual developments.
+The main driving force behind the preparation of the existing non statutory guidance was the need to facilitate development rather than leave it to individual developers to try to satisfy Transport Scotland and the two councils that they had adequately mitigated all their cumulative impacts on the transport network.
+Elsick and others objected to the consultation draft on several grounds, including that it failed to comply with the Circular.
+The Authority responded to Elsicks representations by stating that all but one of the transport interventions were within a three mile radius of Aberdeen City centre and had strong inter relationships and that the modelling of the CTA had demonstrated that there was a cumulative impact from all development areas to all of the interventions.
+The Authority approved the draft supplementary guidance on 24 April 2015 and sent it to the Scottish Ministers for ratification.
+The Scottish Ministers advised that the Authority could adopt the draft supplementary guidance if they added a statement that the use of any planning obligation shall follow the guidance in the Circular.
+The Authority made that amendment and adopted the supplementary guidance (SG) on 25 June 2015.
+As I explain below when I discuss the legislative background, the SG forms part of the development plan for the purpose of determining planning applications.
+The Supplementary Guidance
+After setting out the purpose of and background to the SG and who would be expected to contribute, the SG explained that the purpose of the Fund was to mitigate the cumulative impact of developments at specific hotspots in the network which the CTA had identified.
+It continued (in para 4.8): [t]here will still be a requirement to mitigate impacts specific to the development (defined as local impacts) whether they are on the local or strategic network.
+In section 5 the SG set out the contributions which were required to deliver the proposed interventions at an estimated cost of 86.6m.
+In Table 1 in that section the SG set out contribution levels which for residential developments were fixed by reference to unit size, ranging from 1,350 per unit for a one bedroom unit to 3,148 per unit for a unit of five bedrooms or more.
+The table also provided for contributions from non residential developments.
+Because the Authority has argued that contribution to the Fund was voluntary (para 20 below), I set out para 5.4 so far as relevant.
+It provided: Developers can elect to assess and mitigate their cumulative impact outwith the [Fund], although this will require a considerably more comprehensive Transport Assessment and the design and delivery of the mitigation measures shown to be necessary.
+This will definitely be more time consuming and almost certainly more expensive, if it can be achieved at all. (emphasis added)
+Section 6 of the SG addressed how and when contributions would be payable.
+Para 6.1 stated that a planning obligation or other legal agreement would normally be used to secure contributions.
+In accordance with the advice of the Scottish Ministers, the paragraph also stated that the use of any planning obligation shall follow the guidance in the Circular.
+Section 7 of the SG explained that the contributions would be used only to fund the transport interventions which it listed.
+Para 7.3 stated: No contributions from development sites will be used to support projects where the development in question is predicted to gain no mitigation benefit from the infrastructure being provided and therefore is un related to the development making the contribution.
+The CTA has shown that the delivery of each of the projects identified above is necessary to make all developments acceptable in planning terms (see appendix 2). (emphasis added)
+Appendix 2 summarised the CTA and listed the cumulative infrastructure requirements which it had identified.
+It reproduced as Table 3 the revised table 7.2 of the CTA, which had been prepared in response to the reporters criticism (para 7 above) that it had not been demonstrated that there was a clear and direct relationship between the development contributing to the Fund and the infrastructure which would be delivered.
+But that table showed the traffic generated by each development which would use the infrastructure at the identified hotspots as a percentage of the total traffic generated by that development.
+For example, the table showed the following in relation to the Elsick site: A944 New A947 A96 Development Zone East of Bridge of Dee AWPR 0.79% 8.39% 0.10% 0.76% Kingswells North Persley Bridge 1.46% 3.45% Elsick Thus, taking the columns on the left, the table showed that 3.45% of the traffic which the Elsick development would generate would use Persley Bridge and 0.10% of that traffic would use the A947.
+The previous table 7.2 in the CTA was more informative about the impact of the proposed developments on the infrastructure.
+It showed the percentage of the total traffic using the new infrastructure at the identified hotspots which the traffic generated by each proposed development was estimated to create.
+For example, in relation to the Elsick development, it had shown that the percentage of the total traffic predicted to use the same infrastructure as the following: Kingswells Development Zone North Persley Bridge A947 A96 East of AWPR 1% 0% A944 New Bridge of Dee 7% 1% Elsick 1% 2% It also showed that 2% of the traffic on the Loirston Link would be generated by the Elsick development and 79% of the traffic on the Elsick Fastlink.
+In relation to a separate development at Blackdog the original table 7.2 of the CTA showed that 1% of the traffic on the A947 would be attributable to that site and 0% of the traffic on all of the other listed infrastructure.
+Paragraph 7.4 explained that the contributions would be used to deliver the specified transport interventions.
+It stated: Nestrans as the Regional Transport Partnership will hold and administer contributions in a strategic transport fund.
+As contributions are received they will be placed into a ring fenced account.
+The monies in this account will only be available for delivering the strategic transport projects listed above, including detailed assessment, development and design work.
+The challenge
+Elsick appealed against the adoption of the SG to the Inner House of the Court of Session under section 238 of the 1997 Act.
+On 29 April 2016 the First Division of the Inner House (The Lord President (Lord Carloway), Lord Menzies and Lord Drummond Young) allowed the appeal and quashed the SG: [2016] CSIH 28.
+The First Division upheld three of the four grounds of appeal which Elsick advanced.
+First, the court upheld the submission that the Authority had failed to comply with national policy on the use of planning obligations, holding that it was a fundamental principle of planning law, which was reflected in the Circular, that a condition attached to the grant of a planning permission, whether contained in a planning obligation or otherwise, must fairly and reasonably relate to the permitted development.
+The First Division accepted the distinction, which the reporter had drawn, between the sharing of costs among developments which had cumulatively required a particular investment in transport infrastructure on the one hand and the funding of a basket of measures, not all of which were relevant to every development.
+The court referred (in para 35 of its opinion) to the original Table 7.2 and held that many of the planned developments had no impact at all on several of the proposed infrastructure interventions.
+It added: [t]his applies to both Elsick and Blackdog relative to a number of the interventions.
+In respect of others the impact is de minimis.
+The result was that the additional sentence in the SG about complying with the guidance in the Circular, which was added at the request of the Scottish Ministers (para 11 above), could not prevent the obligation to contribute to the Fund, in which contributions were pooled, from breaching the Circular.
+The First Division also upheld Elsicks submission that there was no rational basis for relying on Table 3 of Appendix 2 of the SG (ie the revised table 7.2 of the CTA) to support the contention that a particular intervention was made necessary by reason of either a particular development or the cumulative effect of it along with other developments.
+The Authority applied for and was given permission to appeal to this court arguing that the policy tests in the Circular were not part of the legal tests for the validity of a planning obligation, that the Inner House had taken an unduly restrictive approach to policy, and that the Authority had substantially complied with the Circular when the SG afforded the opportunity to a developer to make mitigation contributions to infrastructure wholly outside the Fund (para 5.4 of the SG, which is set out in para 13 above).
+This court refused to allow the Authority to argue that the Inner House had erred in law and fact in finding that many of the planned developments, such as Elsick and Blackdog, have no impact on some of the proposed interventions and, in the case of Elsick and Blackdog, the impact on some other interventions is de minimis, because that was a finding of fact, based on the original table 7.2 of the CTA, the contents of which were not disputed.
+Discussion
+The central issue in this appeal is the lawfulness of the planning obligation which Elsick has entered into in conformity with the requirements of the SG.
+The Authority challenges the First Divisions conclusion that the tests applicable to a planning condition are properly to be applied to a planning obligation.
+To address this challenge I examine (i) the correct legal test as to the lawfulness of a planning condition, (ii) the correct legal test as to the lawfulness of a planning obligation, (iii) the role of a planning obligation in the decision to grant or refuse planning permission, and (iv) the boundary between questions of legality and questions of policy.
+I set out the legislative background before turning to each of the four questions.
+Finally, I will apply the answers to those questions to the facts in this appeal.
+The legislative background
+The 1997 Act was amended extensively by the Planning etc (Scotland) Act 2006 to provide in Part 2 for strategic development planning: see section 2 of the 2006 Act.
+Section 4 of the amended 1997 Act empowers the Scottish Ministers to designate a group of planning authorities as authorities which are jointly to prepare a strategic development plan for the area which the Scottish Ministers determine (section 5(3)).
+Section 7 provides that a strategic development plan is to include a vision statement, which is to be a broad statement setting out the strategic development planning authoritys views on how development could and should occur in its area and the matters, including infrastructure, which might affect that development.
+The 1997 Act provides for the preparation and publication of a proposed strategic development plan (section 10), the appointment by the Scottish Ministers of a reporter to examine the proposed plan (section 12), the approval or rejection of the proposed plan by the Scottish Ministers (section 13), and, on such approval, the publication of the constituted strategic development plan.
+Section 22 empowers a strategic development planning authority to adopt and issue supplementary guidance in connection with a strategic development plan, which guidance has to be submitted to the Scottish Ministers who can by notice require the authority to modify it.
+The Town and Country Planning (Development Planning) (Scotland) Regulations 2008 (SSI 2008/426) provide (in regulation 27(2)) that such supplementary guidance may only deal with the provision of further information or detail in respect of the policies or proposals set out in [the] plan and then only provided that those are matters which are expressly identified in a statement contained in the plan as matters which are to be dealt with in supplementary guidance.
+Section 24 defines the development plan, which is an important concept in relation to decisions taken under the planning Acts, as including the provisions of the approved strategic development plan for the time being in force for the area and also the supplementary guidance issued in connection with that plan.
+The central importance of the development plan to planning decisions can be seen in two provisions of the 1997 Act.
+First, section 25(1) provides: Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination is, unless material considerations indicate otherwise (a) to be made in accordance with that plan Secondly, section 37(2) provides: In dealing with [an application for planning permission] the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations.
+Sections 25(1) and 37(2) in combination set up what has been called a presumption that the development plan is to govern the decision on an application for planning permission: City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, 43G; [1997] 1 WLR 1447, 1458 per Lord Clyde.
+I will return to these two provisions when I consider question (ii) below.
+to section 37(1) which provides: In order to address question (i) (the lawfulness of a planning condition) I refer Where an application is made to a planning authority for planning permission (a) they may grant planning permission, either unconditionally or subject to such conditions as they think fit, and section 41(1) which provides so far as relevant: Without prejudice to the generality of section 37(1) to (3), conditions may be imposed on the grant of planning permission under that section a) for regulating the development or use of any land under the control of the applicant (whether or not it is land in respect of which the application was made) or requiring the carrying out of works on any such land, so far as appears to the planning authority to be expedient for the purposes of or in connection with the development authorised by the permission; for requiring the removal of any buildings or b) works authorised by the permission, or the discontinuance of any use of land so authorised, at the end of a specified period, and the carrying out of any works required for the reinstatement of land at the end of that period.
+Of direct relevance to question (ii) (the lawfulness of a planning obligation) is section 75 (as substituted by section 23 of the 2006 Act) which, so far as relevant, provides: (1) A person may, in respect of land in the district of a planning authority (a) by agreement with that authority, or (b) unilaterally, enter into an obligation (referred to in this section and in sections 75A to 75C as a planning obligation) restricting or regulating the development or use of the land, either permanently or during such period as may be specified in the instrument by which the obligation is entered into (referred to in this section and in those sections as the relevant instrument) (2) Without prejudice to the generality of subsection (1), the reference in that subsection to restricting or regulating the development or use of land includes (a) requiring operations or activities specified in the relevant instrument to be carried out in, on, under or over the land, or (b) requiring the land to be used in a way so specified. (3) A planning obligation may (b) require the payment (i) of a specified amount or an amount determined in accordance with the relevant instrument.
+Section 75(5) provides that a relevant instrument, to which the owner of the land is a party, may be recorded in the Register of Sasines or registered in the Land Register of Scotland so that the planning authority may enforce certain obligations in the instrument against both the owner and his successors in title.
+Sections 75A and 75B provide for the modification and discharge of planning obligations by agreement with the planning authority or by the determination of the Scottish Ministers on an appeal.
+Question (i): the lawfulness of a planning condition
+A planning condition is a statutory creation.
+Section 37(1) of the 1997 Act (para 26 above) and similar legislative provisions in England and Wales (section 70(1) of the Town and Country Planning Act 1990 (the 1990 Act)) authorise a planning authority to impose planning conditions when it grants a planning permission.
+The apparently unlimited power (subject to such conditions as they think fit) has long been interpreted restrictively by the courts to prevent its abuse.
+The courts have formulated three principal constraints.
+First, the conditions must be imposed for a planning purpose and not solely to achieve some ulterior object, however desirable in the public interest that object may be.
+Secondly, the conditions must fairly and reasonably relate to the permitted development.
+Thirdly, the conditions must not be unreasonable in the Wednesbury sense (Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223, 233 234).
+The first constraint arises from the statutory origin of the power of a planning authority to impose conditions: administrative law provides that it must be exercised for the purposes of the 1997 Act, namely planning purposes.
+The second constraint was first articulated by Lord Denning in Pyx Granite Co Ltd v Ministry of Housing and Local Government [1958] 1 QB 554, 575.
+His statement has been endorsed on several occasions by the House of Lords in Fawcett Properties Ltd v Buckingham County Council [1961] AC 636, Mixnams Properties Ltd v Chertsey Urban District Council [1965] AC 735, and Newbury District Council v Secretary of State for the Environment [1981] AC 578.
+It arises from the statutory context of the power in section 37: a planning authority is tasked with determining an application for planning permission on its merits having regard to the development plan so far as relevant and other material considerations; the power to attach conditions to the permission is an inherent part of the power to grant permission for the development of land; therefore the conditions imposed on the grant of that permission must relate to the development for which permission is given.
+The third constraint is a feature of our administrative law.
+The second legal requirement that a condition must fairly and reasonably relate to the development requires there to be a reasonably close relationship between the development and the condition which governs it.
+In British Airports Authority v Secretary of State for Scotland 1979 SC 200 the Inner House looked for a clear relationship between the condition and the permitted development (218 per the Lord President (Emslie)) or a recognised and real relationship that is fair and reasonable (220 per Lord Cameron).
+Such a relationship between a condition and the permitted development existed where a planning authority imposed a negative suspensive condition, that development of a site should not commence until an event had occurred which the developer alone did not have power to bring about.
+In Grampian Regional Council v Secretary of State for Scotland and City of Aberdeen District Council 1984 SC (HL) 58 the House of Lords upheld the validity of such a condition which overcame an objection to a proposed industrial development on the ground of road traffic safety.
+The condition was that the development of the site could not commence until the road on the western boundary of the site had been closed by a road closure order which the Secretary of State would have to confirm.
+In the leading speech, Lord Keith of Kinkel (pp 66 67) accepted the three tests which I have stated in para 28 above and which have come to be associated with the Newbury case and held that the condition met the third test because it was not unreasonable to impose such a condition which was in the public interest and where there were reasonable prospects that a road closure order would be confirmed.
+The three fold legal test for validity, having been repeatedly approved by judges at the highest level, is an established part of planning law.
+Other rules of administrative law, such as the requirement to take account of all relevant considerations and not to take account of irrelevant considerations in decision making, apply to a decision to impose a particular condition.
+Question (ii): the lawfulness of a planning obligation
+A planning obligation also is a statutory creation.
+As with a particular planning condition, the lawfulness of a particular obligation depends upon (i) the wording of the statute, and (ii) the rules of our administrative law.
+Section 75 of the 1997 Act, like its predecessor legislation (section 50 of the Town and Country Planning (Scotland) Act 1972), requires that the obligation restricts or regulates the development or use of the land to which it relates.
+As section 75(3)(b) shows, the planning obligation can include the payment of money.
+Prima facie the planning authority is given a wide discretion as to the circumstances in which it can seek a planning obligation and the nature of that obligation.
+While it is not uncommon for planning authorities to duplicate some planning conditions in a section 75 agreement and thereby obtain an alternative means of enforcement, planning obligations also enable a planning authority to control matters which it might otherwise have no power to control by the imposition of planning conditions.
+Planning obligations are most commonly required in the context of an application for planning permission, but they are not confined to such circumstances and are available as a means of keeping land free from any development.
+It is not surprising therefore that there is no general legal requirement that there be a relationship to a permitted development.
+In Good v Epping Forest District Council [1994] 1 WLR 376, in which Ralph Gibson LJ delivered the leading judgment, the Court of Appeal addressed the question whether a planning authority could validly achieve by agreement any purpose which it could not validly achieve by planning condition or whether the test for validity was the same in each case.
+In substance, the Court held that the powers of a planning authority to bring about a planning obligation were not controlled by the nature and extent of its statutory powers to grant planning permission subject to conditions (p 387C).
+A planning obligation did not have to relate to a permitted development.
+In Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, which I discuss more fully when addressing question (iii) below, both Lord Keith of Kinkel (769B C) and Lord Hoffmann (779C D) referred with approval to the judgment of the Court of Appeal in Good v Epping Forest District Council (above).
+Lord Hoffmann (779D) summarised the case thus: the only tests for the validity of a planning obligation outside the express terms of section 106 [of the 1990 Act] are that it must be for a planning purpose and not Wednesbury unreasonable.
+Thus beyond the restrictions implicit in the words of the section there are only the constraints of administrative law, which requires the planning authority to exercise its power to seek a planning obligation for a planning purpose: its exercise solely for a purpose unrelated to land use planning would be an abuse of power.
+Similarly, if a local planning authority acts unreasonably in the Wednesbury sense in requiring the undertaking of a planning obligation, the obligation may be reduced (nullified).
+Other rules of administrative law, such as the requirement to take into account all relevant considerations, also apply.
+The express words of section 75 require a relationship between the planning obligation and the land to be burdened by the obligation because the obligation must in some way restrict or regulate the development or the use of that land.
+But those restrictions or regulation do not necessarily relate to a particular permitted development on the burdened land.
+A planning obligation may prohibit the development of the land in a particular way or the use of the land for particular purposes.
+A planning obligation may keep the burdened land free from any development and may be entered into in circumstances which are not connected with any planning application.
+Restrictions may validly be imposed in the context of the development of another site.
+Thus, to take an example discussed in Good v Epping Forest District Council, the owner of two farms, A and B, within the area of a planning authority might apply for planning permission to develop and operate an intensive breeding establishment on farm A.
+The owner of the farms might offer, or the planning authority might require, a section 75 planning obligation preventing the use of farm B for that purpose.
+The restriction would relate to farm B and would be justified for the planning purpose of preventing an undesirable number of such establishments in the same area.
+A planning obligation may also regulate the development or use of the burdened site.
+An example, in the context of a planning application, is where a planning obligation requires the developer to provide affordable housing as a component of a development on its site or to create specified infrastructure on its land to meet the needs of that development.
+Similarly, a planning authority may contract for the payment of financial contributions towards, for example, educational facilities, healthcare facilities, sewerage or waste and re cycling: requiring a development to contribute to, or meet, its own external costs in terms of infrastructure involves regulating the development of the land which is burdened by the obligation.
+The financial contribution can be applied towards infrastructure necessitated by the cumulative effects of various developments, so long as the land which is subject to the planning obligation contributes to that cumulative effect and thereby creates a sufficient relationship between the obligation in question and the land so that one can fairly speak of the obligation as regulating the development of the land.
+In each of the examples in paras 38 41 above the restriction or regulation serves a purpose in relation to the development or use of the burdened site.
+In this appeal a question of principle arises: can a restriction or regulation of a site be imposed in the form of a negative suspensive planning obligation, analogous to the negative suspensive planning condition in the Grampian Regional Council case, for a purpose which does not relate to the development or use of the site? In particular, is it lawful by planning obligation to restrict the commencement of the development of a site until the developer undertakes to make a financial contribution towards infrastructure which is unconnected to the development of the site? Alternatively, is it lawful to require contributions towards such infrastructure in a planning obligation which does not restrict the development of the site by means of a negative suspensive obligation?
+The answer to each question is no. Dealing first with the latter question, a planning obligation which required a developer to contribute to infrastructure unconnected with its development but did not make the payment of the contribution a pre condition of development of the site would not fall within section 75 as it would neither restrict nor regulate the development or use of the site.
+In Tesco Stores Ltd v Secretary of State for the Environment (1994) 68 P & CR 219, Beldam LJ (pp 234 235) stated: In section 106(1) [of the 1990 Act] the obligations referred to in subsections (a), (b) and (c) clearly relate to the land in which the person entering into the obligation is interested.
+The obligation entered into by a person interested in land under subsection (d) to pay money to the authority is not expressed to be restricted to the payment of money for any particular purpose or object.
+But all the planning obligations are, by section 106(3), enforceable not only against the person entering into the obligation but also against his successors in title to the land.
+Against the background that it is a fundamental principle that planning permission cannot be bought or sold, it does not seem unreasonable to interpret subsection (1)(d) so that a planning obligation requiring a sum or sums to be paid to the planning authority should be for a planning purpose or objective which should be in some way connected with or relate to the land in which the person entering into the obligation is interested.
+In my view, this analysis is equally applicable to section 75 of the 1997 Act which, in so far as is relevant, is in substantially similar terms as section 106 of the 1990 Act (as substituted by section 12(1) of the Planning and Compensation Act 1991) as the obligations in section 106(1)(a) (d) are reflected in section 75(1)(2) and (3)(b).
+A planning obligation, which required as a pre condition for commencing development that a developer pay a financial contribution for a purpose which did not relate to the burdened land, could be said to restrict the development of the site, but it would also be unlawful.
+Were such a restriction lawful, a planning authority could use a planning obligation in the context of an application for planning permission to extract from a developer benefits for the community which were wholly unconnected with the proposed development, thereby undermining the obligation on the planning authority to determine the application on its merits.
+Similarly, a developer could seek to obtain a planning permission by unilaterally undertaking a planning obligation not to develop its site until it had funded extraneous infrastructure or other community facilities unconnected with its development.
+This could amount to the buying and selling of a planning permission.
+Section 75, when interpreted in its statutory context, contains an implicit limitation on the purposes of a negative suspensive planning obligation, namely that the restriction must serve a purpose in relation to the development or use of the burdened site.
+An ulterior purpose, even if it could be categorised as a planning purpose in a broad sense, will not suffice.
+It is that implicit restriction which makes it both ultra vires and also unreasonable in the Wednesbury sense for a planning authority to use planning obligations for such an ulterior purpose.
+It is, perhaps, surprising that the legal boundaries of a planning obligation have not been the subject of more extensive judicial comment, beyond the cases discussed in Good v Epping Forest District Council, the comment by Beldam LJ in the Court of Appeal in Tesco (para 43 above), and the opinion of Lord MacLean in McIntosh v Aberdeenshire Council 1999 SLT 93 (which upheld the validity of a planning obligation to build an estate road to serve the owners development of his land and also to facilitate the development of neighbouring land in third party ownership) when the risk of misuse of planning obligations has long been recognised as a matter of policy.
+There were concerns that some planning authorities were tempted to make exorbitant demands for what has been called planning gain, to confer benefits on the community which were not part of the developers original proposal.
+A developer in order to obtain a planning permission might be forced to incur disproportionate costs in providing such gains which were unrelated or insufficiently related to its development or otherwise suffer the delay and expense of an appeal to the Scottish Ministers.
+This practice risked bringing the planning system into disrepute.
+In 1981, in a report to the Secretary of State for the Environment called Planning Gain, the Property Advisory Group advised that planning obligations be used only to overcome legitimate planning objections to an application for planning permission and that the practice of bargaining with developers for planning gain was unacceptable.
+The report, which was criticised for taking too narrow an approach to the planning process, advocated that the Secretary of State should issue guidance.
+The Department of the Environment and the Welsh Office produced such guidance in 1983 in circular 22/83, which sought to control rather than exclude the pursuit of planning gain.
+In Scotland, the Scottish Development Department issued a circular in 1984, entitled Section 50 Agreements (SDD circular 22/1984).
+Current guidance on the use of planning obligations in Scotland is contained in the Circular (para 5 above).
+As I explain when addressing question (iv) below, this guidance, while an important statement of national policy, does not have the force of law.
+There was also a perceived risk that developers, who were each promoting a different site in a competition for what might be an exclusive permission to develop one of the sites, would offer to enter into an obligation with the planning authority to fund infrastructure or other community facilities which were unrelated or only marginally related to their developments.
+This practice similarly threatened to bring the planning system into disrepute, by creating the impression that they were buying planning permissions.
+In the heady days of the store wars, major supermarket chains competed with each other before planning authorities and in planning appeals to obtain permission to develop rival sites up and down the United Kingdom.
+This competition, which often involved offers to provide planning gain, led to authoritative judicial guidance on the relevance of a planning obligation to the grant or refusal of a planning permission, which I now consider under question (iii).
+Question (iii): the role of the planning obligation in the grant or refusal of
+planning permission
+What is the role of a planning obligation in the decision to grant or refuse planning permission? In Scotland that decision is governed by section 37(2) of the 1997 Act which requires that the planning authority have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations (para 25 above).
+In Tesco Stores Ltd v Secretary of State for the Environment (above) the House of Lords, when considering a legislative provision in identical terms (section 70(2) of the 1990 Act), gave guidance on the relevance of a planning obligation to the grant or refusal of planning permission.
+That guidance is not challenged in this appeal.
+In the leading speech, which Lord Keith of Kinkel delivered, the House held that for a planning obligation to be a material consideration, which it interpreted as a relevant consideration (764G), in the decision whether to grant planning permission, the obligation must have some connection with the proposed development which is not de minimis (ie too trifling for the law to be concerned with it).
+In what follows, I paraphrase the Latin phrase as trivial.
+Lord Keith described the relevance of a planning obligation in these terms (770A B): An offered planning obligation which has nothing to do with the proposed development, apart from the fact that it is offered by the developer, will plainly not be a material consideration and could be regarded only as an attempt to buy planning permission.
+If it has some connection with the proposed development which is not de minimis, then regard must be had to it.
+In that case, developers, including Tesco and Tarmac, which was associated with Sainsburys, competed to obtain planning permission for their sites for a superstore outside the centre of Witney in Oxfordshire.
+The Witney local plan proposed a new link road, including a new river crossing, to relieve traffic congestion.
+Tesco entered into a planning obligation with the planning authority under section 106 of the 1990 Act to fund that road.
+The Secretary of State on appeal favoured the Tarmac site and refused permission to the Tesco application, holding that the link road was not needed to enable any of the food stores to be developed or so directly related to any of the developments or the use of the land after completion that any of the developments should not be permitted without it.
+Tesco appealed under section 288 of the 1990 Act, arguing that the Secretary of State had erred in law in not treating the offer to fund in the planning obligation as a material consideration.
+The House held that the Secretary of State had correctly had regard to the offer but had chosen in the exercise of his planning judgement to attach little weight to it and so had not erred in law.
+No challenge was made in Tesco, in the House of Lords or in the courts below it, to the validity of the planning obligation: the question whether the obligation regulated the development of Tescos site was not put in issue and only Beldam LJ commented on the legality of an obligation to contribute money (para 43 above).
+The inclusion of a policy in the development plan, that the planning authority will seek such a planning obligation from developers, would not make relevant what otherwise would be irrelevant.
+Section 37(2) (para 25 above) requires the planning authority to have regard to the provisions of the development plan so far as material to the application and treats its provisions as a relevant consideration only to that extent.
+Thus, a green belt policy will be relevant to an application if the site of the application falls within the specified green belt and a requirement that a certain amount of open space is provided in a proposal for residential development will be relevant to an application for residential development.
+Similarly, a requirement in the plan that an applicant should agree to contribute to the cost of offsite infrastructure, which is related to its development, will be relevant to the application.
+But the words, which I have emphasised, mean that if a planning obligation, which is otherwise irrelevant to the planning application, is sought as a policy in the development plan, the policy seeking to impose such an obligation is an irrelevant consideration when the planning authority considers the application for planning permission.
+It is important to recall that the question whether a benefit conferred by a planning obligation is a material consideration in the determination of an application for planning permission is quite separate from the question whether a planning obligation restricts or regulates the development or use of a particular piece of land.
+Thus, to use the example of the farmer with two farms, A and B. He wishes to develop farm A and is prepared to enter into a planning obligation to restrict the development or use of farm B in the context of his negotiation of a permission for farm A.
+The legality of the planning obligation in relation to farm B will depend, among other things, on whether it restricts or regulates the development or use of farm B. The relevance of the planning obligation to the determination of the application in relation to farm A depends upon there being a more than trivial connection between the benefit conferred by controlling farm B and the development of farm A, as the Tesco case decided.
+Question (iv): The boundary between questions of legality and questions of policy
+Relevant ministerial guidance which sets out national planning policy is unquestionably a material consideration for any planning authority when it determines applications for planning permission.
+A failure by a planning authority to take into consideration national guidance, such as that in the Circular (para 5 above) on the tests which a planning authority should apply when deciding whether to seek a planning obligation, would be unlawful.
+Further, if a planning authority were to depart from national planning guidance when refusing an application for planning permission, it might risk an appeal by the disappointed applicant to the Scottish Ministers.
+But a decision by the planning authority is not illegal if it departs from ministerial guidance in a planning circular, provided that the authority has treated that guidance as a relevant consideration when it reached its decision.
+In Tesco (above) Lord Hoffmann pointed out (780F G) that the law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given.
+The former is a question of law; the latter is a matter for the planning judgement of the planning authority.
+Accordingly, a failure by a planning authority to have regard to relevant guidance as a material planning consideration would be an error of law.
+A decision, after considering the guidance, not to follow it, would (absent another ground of challenge in administrative law) be a matter of planning judgement, in which the courts have no role.
+The legality of Elsicks planning obligation
+What is the nature of the scheme which the SG has established?
+First, it involves the payment by developers of financial contributions towards the funding of specified transport infrastructure in and around Aberdeen, principally through the mechanism of planning obligations.
+It involves the pooling of the contributions and no one developer is liable for the costs of any of the specified interventions (paras 1.5 and 3.3 and Appendix 2).
+Secondly, the obligation to contribute to the Fund is in addition to the requirement that a developer mitigate impacts specific to its development (para 4.8).
+Thirdly, the contributions from residential developers are fixed at a sum per unit (Table 1 summarised in para 12 above).
+Fourthly, those payments are not tied to the impact of a particular development on the transport network.
+The original table 7.2 in the CTA suggested that there was no connection between traffic generated by certain developments and the need to intervene at particular hotspots.
+The revised table 7.2 which is referred to in para 7.3 of the SG and reproduced in Appendix 2 shows that some vehicles from each of the developments will use the proposed infrastructure but in many cases such use is at a very low level.
+Fifthly, the opt out which para 5.4 of the SG offers (para 13 above) does not make the scheme voluntary in any real sense.
+The developer is still expected to provide a contribution towards the cumulative impact of the developments on infrastructure over and above the impact of its individual development and the paragraph understandably expresses doubt whether a developer could create the needed assessment, design and provide for the necessary mitigation measures.
+Unless a developer were able to perform this daunting task and persuade the planning authority that it was robust, it is clear that the scheme envisages that it would not obtain planning permission for its development.
+Sixthly, the statement in para 6.1 that the use of any planning obligation shall follow the guidance in the Circular is inconsistent with the nature of the scheme.
+This is because the pooling of fixed per unit contributions towards the funding of infrastructure interventions, which include many on which a particular developments impact is minimal, does not meet the criterion in the Circular that the obligation is fairly and reasonably related in scale and kind to the proposed development.
+The statement which the Scottish Ministers inserted into the SG therefore is no safeguard.
+As the Lord President has observed, there appears to be much that can be said in favour of such a scheme.
+It enables a planning authority to facilitate development within its area.
+Inclusion of such a scheme in a development plan allows a public debate during the statutory process of the approval of the plan.
+The scheme allows developers in the area to assess the viability of their proposed developments knowing the extent of their liability to the Fund before they spend large sums pursuing their applications.
+In England and Wales Part 11 of the Planning Act 2008, which provided for a community infrastructure levy, was enacted to achieve similar ends.
+But the 1997 Act does not allow for such a scheme.
+The Inner House has found that the connection between certain developments, including the development at Elsick, and some of the interventions which the pooled Fund is intended to finance is at best trivial.
+The illegality of the scheme is not because it does not comply with the Circular.
+The guidance in the Circular is simply a material consideration which the planning authority must take into account when deciding whether to grant planning permission.
+The weight which the planning authority attaches to such guidance is a matter of planning judgement.
+The scheme of the SG and the planning obligations which it promotes are unlawful for two separate reasons.
+First, the requirement imposed on a developer to contribute to the pooled Fund, which is to finance the transport infrastructure needed to make acceptable all of the developments which the development plan promotes, entails the use of a developers contribution on infrastructure with which its development has no more than a trivial connection and thus is not imposed for a purpose in relation to the development and use of the burdened site as section 75 requires.
+Further, the Council did not include any provision in the planning obligation restricting the development of the Elsick site until a contribution was made.
+Instead it resolved to grant planning permission for the development but to issue that permission only once Elsick had entered into the obligation.
+The planning obligation was therefore neither restricting nor regulating the development of the Elsick site and so was outside the ambit of section 75.
+Secondly, Tesco (above) establishes that for a planning obligation, which is to contribute funding, to be a material consideration in the decision to grant planning permission, there must be more than a trivial connection between the development and the intervention or interventions which the proposed contribution will fund.
+The planning obligation which Elsick entered into could not be a relevant consideration in the grant of the planning permission.
+In my view, it was not within the power of the planning authority to require a developer to enter into such an obligation which would be irrelevant to its application for permission as a precondition of the grant of that permission.
+If planning authorities in Scotland wish to establish a local development land levy in order to facilitate development, legislation is needed to empower them to do so.
+Conclusion
+I would dismiss the appeal.
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+This is an appeal concerning a claim for repayment of unduly levied Value Added Tax (VAT) in the context of a VAT group of companies.
+The question is whether Taylor Clark Leisure PLC (TCL) is to be treated as having made claims for repayment within the time limit set by section 121 of the Finance Act 2008 (FA 2008), namely by 31 March 2009, when another company, which was formerly a member of the VAT group, and not TCL made the relevant claims.
+As I discuss below, the idea of a VAT group of companies was introduced to simplify the collection of VAT (a) by ignoring intra group transactions and (b) by treating supplies by or to any member of the group in their dealings with entities outside the group as transactions by a single taxable person.
+Several companies have sought to intervene in this appeal because of concerns that the determination of this appeal would affect their outstanding claims which are due to be heard by the Court of Appeal in January 2019.
+This court has declined to allow such intervention because this appeal is not directly concerned with questions raised in those appeals as to which company has a right to claim repayment of unduly levied VAT either when a company which has had the economic burden of paying VAT has left a VAT group or where a VAT group has been dissolved.
+I recognise that, nonetheless, my discussion of the nature of the statutory regime in the United Kingdom (UK) in relation to an extant VAT group will indirectly have a bearing on those issues.
+Factual background
+TCL is now a dormant company.
+It was initially incorporated as Caledonian Associated Cinemas Ltd in 1935 and was reincorporated on change of name on two occasions before it acquired its current name in 1995.
+Between 1973 and 2009 TCL was the representative member of the Taylor Clark VAT Group (the VAT Group), in accordance with legislation which I discuss under the heading VAT legislation below.
+From 1973 until 28 February 2009, when the VAT Group was disbanded, the VAT registration number (VRN) of the VAT Group was 265 7918 16.
+On 16 November 2007, Carlton Clubs Ltd (Carlton) submitted four claims to the Commissioners of HM Revenue and Customs (HMRC) under section 80 of the Value Added Tax Act 1994 (VATA) for repayment of VAT output tax, which TCL as representative member of the VAT Group had accounted for in the years between 1973 and 1998 using its VRN as representative member of the VAT Group.
+TCL submits that it, as the representative member of the VAT Group, is entitled to rely on Carltons claims because it asserts that those claims are to be regarded as having been submitted on behalf of the VAT Group which EU law treats as a single taxable person entitled to repayment of the unduly levied tax.
+The dispute has arisen in the following way.
+In about 1990 TCL undertook a group reorganisation.
+Part of that reorganisation involved the transfer of its bingo business to Carlton, a member of the VAT Group which had been incorporated for that purpose under the name Leisurebrite Ltd, with effect from 1 April 1990.
+The transfer was effected by a letter dated 30 March 1990 (the 1990 Asset Transfer Agreement).
+In 1998 Carlton was sold out of the Taylor Clark group of companies and thus ceased to be part of the VAT Group.
+Thereafter Carlton accounted under its own VRN for VAT in relation to its bingo hall and other leisure business activities.
+Until 2005 it had been wrongly assumed that income generated from bingo and gaming machines was to be treated as subject to VAT at the standard rate.
+But on 17 February 2005 the Court of Justice of the European Union (CJEU) ruled that income from gaming machines was exempt from VAT, whether the machines were operated privately or at licensed public casinos: Finanzamt Gladbeck v Linneweber (Joined Cases C 453/02 and C 462/02) [2005] ECR I 1131; [2008] STC 1069.
+HMRC initially thought that the Linneweber decision did not apply in the UK as it believed that the UK treatment of gaming machine income did not breach the principle of fiscal neutrality.
+Nonetheless, HMRC invited claims for the repayment of VAT on income from gaming machines and analogous activities.
+In 2011 the CJEU decided that, as a result of the application of the principle of fiscal neutrality, bingo was not subject to VAT in the UK: Rank Group PLC v Revenue and Customs Comrs (Joined Cases C 259/10 and C 260/10) [2011] ECR I 10947; [2012] STC 23.
+In response, HMRC issued a Revenue and Customs Brief 39/11 in which they accepted that claims for repayments relating to bingo would be paid subject to verification.
+But HMRC, on their interpretation of the Rank Group judgment, continued to contest claims relating to gaming machines.
+On 23 January 2008 the House of Lords held that UK legislation which 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: Fleming (t/a Bodycraft) v Revenue and Customs Comrs [2008] 1 WLR 195.
+In response to that judgment Parliament enacted section 121 of FA 2008, which disapplied the three year time limit for claims to be made for over declared or overpaid VAT in respect of periods up to 4 December 1996, if a claim was made before 1 April 2009.
+In anticipation of the judgment of the House of Lords in Fleming, Carlton on 16 November 2007 submitted four protective claims for repayment of output VAT which TCL as representative member of the VAT Group had overpaid in accounting periods between 1973 and the first quarter of 1998.
+Carlton made the claims, which related to overpaid VAT on (i) mechanised cash bingo takings, (ii) gaming machine takings, (iii) participation fees, and (iv) added prize money and participation fees, on its own letterhead but using the VAT Groups VRN.
+In claims (i), (ii) and (iv) Carlton headed the claim using TCLs name but in claim (iii) it used its own name in the heading.
+Carlton submitted the claims without informing TCL.
+On 8 January 2009 Carlton submitted a revised claim (iv) in which it quoted its own name and VRN as well as TCLs name and the VAT group VRN.
+In the revised claim, as discussed below, it asserted a right to claim overpaid VAT back to 1973 (ie before its incorporation in 1990) by relying on the 1990 Asset Transfer Agreement, which it claimed had assigned to it the right to make such historic claims.
+HMRC refused all of Carltons claims and Carlton appealed against the refusal.
+HMRC then betrayed no little uncertainty as to how to proceed with the claims.
+Initially, on 27 April 2009 HMRC wrote to TCL as representative member of the VAT Group to confirm that they had processed a repayment of 667,069 together with interest.
+This was the sum claimed by Carlton in its revised claim (iv), which HMRC paid to TCL on 12 May 2009.
+HMRC then changed their minds and on 7 July 2009 notified TCL of an assessment for repayment of that sum and interest.
+HMRC then changed their minds again and withdrew the assessment on 27 October 2009.
+Thereafter, on 4 May 2010 TCLs advisers wrote to HMRC to assert its right to receive repayment under the other claims.
+In a lengthy exchange of correspondence, TCL accepted that it had not made the claims but asserted a right to repayment because the claims had been made in respect of VAT for which it, as representative member of the VAT Group, had incorrectly accounted.
+In a decision letter dated 23 September 2010 HMRC (a) reversed their earlier decision concerning claim (iv) by confirming the assessments which sought repayment of the 667,069 and interest and (b) refused TCLs claim for repayment of the other claims.
+HMRC gave three reasons for their decision.
+First, they contended that TCL had not submitted claims before the expiry of the time limit imposed by section 121 of FA 2008.
+Secondly, HMRC stated that they had taken legal advice and expressed the view that the claims predating 31 March 1990 had been assigned to Carlton by the 1990 Asset Transfer Agreement.
+Thirdly, they asserted that because the VAT Group had since been disbanded, 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.
+This third reason reflected HMRCs policy at that time; now HMRC assert that the right to repayment remains with the last representative member of a disbanded VAT group.
+TCL requested a review of the decision and on review HMRC confirmed their decision and maintained their assessments.
+TCL and Carlton pursued rival appeals against HMRCs refusal to repay the outstanding claims.
+TCLs appeals, which had been lodged in London, were transferred to Edinburgh so that they could be heard together with Carltons appeals.
+On 26 January 2012 Carlton withdrew two of its appeals and intimated to the First tier Tribunal (FTT) that HMRC had satisfied those claims.
+Carltons representative also informed the FTT that Carlton had withdrawn another appeal because HMRC had repaid the claim to Carlton.
+The remaining appeal remains sisted (stayed).
+It thus appears that HMRC have paid to Carlton the sums claimed in three of the four appeals.
+The decisions of the Tribunals and the Inner House
+The FTT (Judge Gordon Reid QC and Dr Heidi Poon) issued its determination on 19 December 2012, in which it decided three main issues.
+First, it held that the right to claim repayment of sums due from 1973 to 1990 had been assigned to Carlton by the 1990 Asset Transfer Agreement (the Assignation Issue).
+Secondly, it held (contrary to the submissions of both parties) that the right to repayment for the claims relating to the period from 1990 to 1996 had been re invested in Carlton when it left the VAT Group in 1998 (the Entitlement Issue).
+Thirdly, it held that TCL had not made a claim under section 80 of VATA and could not rely on the claims submitted by Carlton, which had not made the claims on TCLs behalf (the Claimant Issue).
+TCL appealed to the Upper Tribunal (UT) on all three issues.
+The UT (Lord Doherty) in a determination dated 8 September 2014 dismissed the appeal.
+On the Claimant Issue he interpreted section 80 of VATA as requiring that the claim be made by or on behalf of the taxpayer seeking repayment.
+TCL had not made a claim and no claim had been made on its behalf before the end of the limitation period; accordingly TCLs claim was time barred.
+On the Assignation Issue Lord Doherty reversed the FTTs decision, holding that TCL had not assigned the pre 1990 claims to Carlton in the 1990 Asset Transfer Agreement.
+On the Entitlement Issue, he recorded that it was common ground between HMRC and TCL that TCL was the appropriate party to seek repayment of tax accounted for between 1990 and 1996, even after the VAT Group had been disbanded on 28 February 2009.
+TCL sought to appeal only in relation to the Claimant Issue.
+Lord Doherty refused permission to appeal but on a renewed application to a single judge of the Inner House, Lady Clark of Calton gave permission to appeal on the Claimant Issue by reference to the following question: Can the VAT Group, represented by [TCL], rely on the claims for repayment of VAT overpaid by the VAT Group, when the claims were made in time but were made by another member of the same VAT group? HMRC did not cross appeal on the Assignation or Entitlement Issues.
+Accordingly the only issue which was before the Inner House and is now before this court is the Claimant Issue.
+The Extra Division of the Inner House in an opinion dated 14 July 2016 allowed TCLs appeal.
+The court held that the representative member embodied the VAT group which was a single taxable person, or a quasi persona, so that the acts, rights, powers and liabilities of the individual members of the group were ascribed to the representative member as far as they related to VAT.
+The Inner House held that, in the context of section 43 of VATA, a claim by an individual member of a VAT group must normally be construed as a claim made on behalf of the representative member embodying the group as otherwise the claims would have no meaning.
+As a result, by adopting a purposive construction of the letters which Carlton sent to HMRC, the claims made by Carlton fell to be regarded as claims made by TCL as representative member of the VAT Group.
+The parties contentions
+HMRCs principal argument is that the Inner House 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.
+Carltons claim was made on its own behalf and TCL cannot rely on it to avoid the statutory time bar.
+TCLs response, in summary, is that Carltons claims sought to vindicate the rights of the single taxable person, which was the VAT Group.
+Carlton in EU law had no individual fiscal personality in relation to those rights.
+The claims must be treated as having been submitted on behalf of the VAT Group, which was the only taxable person recognised by EU law, and TCL, as the representative member of the VAT Group, was entitled to rely on those claims.
+In any event, TCL submits that it validly ratified the claims which Carlton made on its behalf.
+The VAT legislation
+The starting point for consideration of the parties submissions is article 11 of the Principal VAT Directive, Council Directive 2006/112/EEC of 28 November 2006 (the Principal Directive) which provides: After consulting the advisory committee on value added tax (hereafter, the VAT committee), each member state may regard as a single taxable person any persons established in the territory of that member state who, while legally independent, are closely bound to one another by financial, economic and organisational links.
+A member state exercising the option provided for in the first paragraph, may adopt any measures needed to prevent tax evasion or avoidance through the use of this provision.
+Two points may be made about this provision.
+First, it is permissive.
+There is no obligation on a member state to institute such a regime.
+Secondly, it is not prescriptive.
+It does not lay down a template as to how a member state will treat a group of persons as a single taxable person.
+It shares these characteristics with its predecessor, article 4.4 of the Sixth Council Directive of 17 May 1977 (77/388/EEC) (the Sixth Directive).
+The UK took up the opportunity to establish VAT groups of companies, initially in section 21 of the Finance Act 1972 and later in section 29 of the Value Added Tax Act 1983 (the 1983 Act).
+The current provision is section 43 of VATA, as amended, which provides, so far as relevant: (1) Where under sections 43A to 43D any bodies corporate are treated as members of a group, any business carried on by a member of the group shall be treated as carried on by the representative member, and any supply of goods or services by a member of (a) the group to another member of the group shall be disregarded; and (b) any supply which is a supply to which paragraph (a) above does not apply and is a supply of goods or services by or to a member of the group shall be treated as a supply by or to the representative member; and all members of the group shall be liable jointly and severally for any VAT due from the representative member.
+It is clear from the statutory words in section 43(1) of VATA that the UK chose to achieve the end which the 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.
+This point was clearly made by the House of Lords in Customs and Excise Comrs v Thorn Materials Supply Ltd [1998] 1 WLR 1106 in their discussion of the predecessor provisions, namely article 4.4 of the Sixth Directive and section 29 of the 1983 Act.
+Lord Nolan, with whom Lord Browne Wilkinson and Lord Lloyd of Berwick agreed, stated (1113C D) that those provisions were designed to simplify and facilitate the collection of tax by treating the representative member as if it were carrying on all of the businesses of the other members as well as its own, and dealing on behalf of them all with non members.
+I do not construe Lord Nolans reference to dealing on behalf of the other members of the VAT group as a reference to an agency relationship.
+Section 43 is not concerned with the intra group legal arrangements of group members.
+It is concerned with dealings in relation to VAT with entities outside of the VAT group and with HMRC, including the disregard of intra group supplies in relation to liability for VAT.
+In its dealings with HMRC in relation to VAT the representative member is treated as carrying on the businesses of the other members of the group.
+Lord Clyde made the same point (1121H) stating that in the UK the single taxable person for which provision was made in article 4.4 of the Directive was the representative member.
+Lord Hoffmann, while dissenting, agreed on the effect of the provisions.
+He stated (1118A B): Section 29 does produce a single taxable person, namely, the representative member.
+But it does so, not by the crude method of deeming all members to be a single person but by the much more limited and specific assumptions which the subsection [now section 43(1)(a) and (b) of VATA] makes.
+Thus, the single taxable person is the representative member.
+The joint and several liability of the other members of the group for VAT due by the representative member is the means by which the UK has sought to counter tax evasion and avoidance in accordance with the authority conferred by the second paragraph of article 11 of the Principal Directive.
+In Ampliscientifica Srl v Ministero dell Economia e delle Finanze (Case C 162/07) [2008] ECR I 4019; [2011] STC 566, the CJEU (paras 19 and 20) explained that article 4.4 of the Sixth Directive, if implemented by a member state, had the effect that companies in a VAT group were no longer treated as separate taxable persons for the purpose of VAT but were to be treated as a single taxable person.
+This precluded such companies from submitting VAT declarations separately since the single taxable person alone is authorised to submit such declarations.
+It followed that the national implementing legislation had to provide that the taxable person is a single taxable person and that a single VAT number be allocated to the group.
+In the UK the model which achieves that result is that of the representative member.
+The words in section 43(1) are clear beyond question: any business carried on by a member of the group shall be treated as carried on by the representative member.
+It has not been suggested that the UK failed to consult the VAT committee before adopting this model (as required by Annex A of the Second Council Directive of 11 April 1967 (67/228/EEC) and later by article 4.4 of the Sixth Directive and now by article 11 of the Principal Directive) and no challenge has been made to the effect that the model does not faithfully implement the option which article 11 of the Principal Directive or its predecessor made available to member states.
+There is no reason to doubt that the model which the UK has adopted is consistent with the EU legislation.
+Other models have been used to take up the option.
+Thus, in the Kingdom of Sweden, national legislation, which exercised the option which article 4.4 of the Sixth Directive gave, provided that a VAT group might be regarded as a single operator and the activity in which companies within the group were engaged might be regarded as a single activity.
+The result was that services supplied to a company within such a VAT group in Sweden were regarded as services supplied to the VAT group: Skandia America Corpn (USA), filial Sverige v Skatteverket (Case C 7/13) [2015] STC 1163, paras 16 and 28 32.
+Whatever may be the position in the legislation of other member states, there is, in my view, no need to complicate matters by introducing a concept of the VAT group as a quasi persona in an analysis of the UK legislation.
+While one can, and HMRC does, speak of the registration of a group giving rise to a single taxable person, it is the appointment of a company as representative member of the group which provides the legal person which is the taxable person.
+The administration of VAT involves giving the representative member of a VAT group a VRN and the establishment of a bank account in its name from which VAT payments may be made to HMRC and into which repayments may be made.
+A VAT group may change its representative member by applying to HMRC under section 43B(2)(c) of VATA (as inserted by section 16 of, and paragraph 2 of Schedule 2 to, the Finance Act 1999) but the new representative member retains the same VRN and bank account.
+In Revenue and Customs Comrs v MG Rover Group Ltd [2016] UKUT 434 (TCC); [2017] STC 41, the Upper Tribunal (Warren J and Hellier J) described the position of the representative member in these terms (para 171): [T]he representative member of section 43 must, in our view, be understood as a continuing entity (perhaps akin to a corporation sole whose role is fulfilled by whoever holds the relevant office at any time).
+Thus actions, liabilities and rights of an old representative member must be ascribed to the new representative member on a change of representative member.
+In my view that analogy is apt.
+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.
+Section 80 of VATA (as amended by section 3 of the Finance (No 2) Act 2005) provides (so far as relevant): (1) Where a person (a) has accounted to the Commissioners for VAT for a prescribed accounting period (whenever ended), and (b) in doing so, has brought into account as output tax an amount that was not output tax due, the Commissioners shall be liable to credit the person with that amount. (2) The Commissioners shall only be liable to credit or repay an amount under this section on a claim being made for the purpose.
+It is clear from the words of section 80(1) that HMRCs liability to credit or repay the overpaid output tax is owed to the person who accounted to them for VAT in the relevant accounting period or periods.
+It is also clear from the concluding words in subsection (2) (for the purpose) that a claim must be made for the credit or repayment to that person before HMRC come under any liability to credit or repay.
+Other subsections support this view.
+Section 80(3), which provides HMRC with the defence of unjust enrichment against a claim under subsection (1) or (1A), refers to the enrichment of the claimant and appears to assume that the claimant is the person who has accounted for the VAT.
+Subsection (4), which imposes a time limit on claims, also is drafted on the basis that the claim will result in the giving of a credit or repayment to the person who accounted for or paid the VAT in the first place.
+It therefore follows from the operation of section 43 of VATA that where there have been overpayments of VAT by the representative member of a VAT group, 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 agent of that representative member.
+I therefore agree with the Extra Division in para 24 of their opinion that it is only the representative member who has any interest in making the claim.
+My disagreement is simply that one does not need the complication of viewing the group as a quasi persona to reach that conclusion.
+In this regard I agree with the impressive analysis of the single taxable person in the context of a subsisting VAT group by the FTT (Judge Roger Berner and Mr Nigel Collard) in paras 73 75 of the decision in Standard Chartered plc v Revenue and Customs Comrs [2014] UKFTT 316 (TC); [2014] SFTD 1270.
+In particular, as Judge Berner stated (para 73): Under UK law, as set out in section 43 VATA, the concept of the single taxable person is properly implemented through the representative member.
+The representative member is not the agent or trustee of the constituent members of the group.
+It is the domestic law embodiment of the single taxable person.
+Mr Scorey on behalf of TCL submits that the only taxable person is the VAT group, which alone has fiscal personality, and that any company within the VAT group can claim repayment of unduly levied VAT on behalf of the group.
+For the reasons set out above, I do not accept that submission.
+Nor do I see any basis for the assertion by the Extra Division (para 27) that a claim by an individual member of a VAT group must normally be construed as a claim made on behalf of the representative member, as otherwise the claim would have no meaning.
+An assignee of the representative member may make a valid claim in its own right (as Carlton purported to do in this case).
+Alternatively, a party may make a claim to which it is not entitled.
+I therefore approach the construction of Carltons claims without any such preconception.
+I also have regard to the limitation of an appeal from the UT to errors of law.
+In my view, for the following four reasons, the FTT did not err in law in so
+Applying the law to the facts: Carltons claims
+The FTT concluded (para 78) that it was clear from the text of each of Carltons letters that it was claiming, in its own right, repayment of sums alleged to have been overpaid by way of VAT, and (para 86) that Carlton did not make the claims in 2007 and the revised claim in 2009 on behalf of TCL.
+holding.
+First, when Carlton sent the letters to HMRC under its own letterhead, it had long ceased to be a member of the VAT group.
+This would have been known to HMRC.
+Even if Carlton had remained a member of the VAT Group, I would not have construed its letter as one on behalf of TCL, in the absence of an assertion that it was acting as TCLs agent, because the statutory scheme, which it was invoking, envisaged that HMRC would deal only with the representative member.
+Secondly, it appears from the four letters dated 16 November 2007 that Carlton had already presented claims in respect of each of claims (i) (iv) in relation to its own business activities in the period after it had left the VAT Group and it presented the new claims as serving to extend the scope of the previous disclosure.
+Thirdly, the use of the VAT Groups VRN was necessary in order to identify the original source of the allegedly overpaid VAT.
+The use of the VRN did not disclose who was entitled to the repayment as it was possible (and later clarified) that Carlton was claiming as assignee.
+Fourthly, in each of the claims submitted on 16 November 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 a member of the VAT Group.
+It clarified the basis on which it made those claims in its letter of 8 January 2009 in which it revised its claim (iv) in respect of cash bingo participation fees.
+In that letter it founded on the 1990 Asset Transfer Agreement and on a decision of the London VAT Tribunal in Triad Timber Components Ltd v Customs and Excise Comrs [1993] VATTR 384 in support of its right to be paid the overpaid VAT.
+In relation to the former Carlton claimed that it had obtained legal opinion that TCL had transferred to it the right under section 80 of VATA to claim output tax previously over declared.
+The Triad decision, on which Carlton relied for its post 1990 claim, was that a trading company had the right, after it left a VAT group and that groups registration had ceased, to reclaim VAT which had been overpaid on its supplies whilst it was a member of that group.
+Carlton claimed that that decision entitled it to claim overpaid output tax for the period that it had been a member of the VAT Group.
+HMRC at that time also accepted the Triad decision, as their policy then, in relation to claims after a group registration had ceased, was to repay the trading entity which had suffered the economic burden of the overpaid VAT.
+Both parties would have readily understood Carlton to be claiming repayment in its own interest.
+TCL sought to neutralise the effect of the letter of 8 January 2009 by arguing that one could not use a subsequent writing to assist in the construction of the earlier letters.
+I do not accept that submission in the context of these letters.
+The four letters of 16 November 2007 were in substantially similar terms.
+The letter of 8 January 2009 expressly revised the earlier claim for overpaid output tax on cash bingo participation fees, thereby superseding the earlier claim to that extent, and expanded on the reasoning behind that claim.
+That explanation, contained under the heading The right to deduct, applied equally to the other claims made on 16 November 2007, most obviously in relation to the periods in each claim which pre dated Carltons incorporation.
+In so far as there was any doubt as to the basis on which Carlton was making the claims in the four letters of 16 November 2007, the clarification provided by the latter letter is admissible and relevant evidence of the nature of Carltons claims.
+To hold otherwise, and have regard to the letter of 9 January 2009 only to the extent that it revised the earlier claim, would in my view be wholly artificial.
+I am also satisfied that TCLs case of agency cannot get off the ground.
+Carlton had no actual authority to send the letters on TCLs behalf.
+The FTTs findings of fact, which were not challenged, destroyed any such assertion.
+The FTT held (para 55) that TCL neither instructed nor authorised Carlton to submit any of the claims and (para 57) that TCL was unaware that it had a potential claim under section 80 of VATA and that HMRCs payment of 667,069 to it on 27 April 2009 came out of the blue.
+Similarly, there is no basis for an argument that TCL ratified Carltons claims which had been made on its behalf, thereby conferring retrospective authority.
+First, Carltons letters to HMRC did not purport to be written as agent of TCL.
+On the contrary, they were claims which Carlton pursued for its own benefit.
+That is fatal to the claim of ratification: Keighley, Maxsted & Co v Durant [1901] AC 240, especially Earl of Halsbury LC 243 244 and Lord Macnaghten 246 247.
+Secondly, there are no findings of fact that TCL ratified Carltons actions as its agent.
+This is unsurprising as TCLs case before the FTT and UT had not been based on Carlton having acted as its agent.
+Further, TCLs counsel in addressing the UT acknowledged that Carlton had submitted the letters on its own behalf and not on behalf of TCL.
+Instead she based her case on an interpretation of section 80 of VATA which allowed TCL to take over Carltons claims.
+The UT decided the appeal on that basis.
+As an appeal from the UT to the Inner House or to this court is available only on a point of law arising from the decision of the UT (Tribunals, Courts and Enforcement Act 2007 sections 13 14C (as inserted by section 64 of the Criminal Justice and Courts Act 2015)), it is not open to the appellate courts to find that there was an agency relationship between Carlton and TCL.
+Further submissions
+After the court had released this judgment in draft to counsel to enable them to point out any typographical errors and minor inaccuracies in accordance with Practice Directions 6.8.3 and 6.8.4, TCLs counsel applied to the court to make a reference to the CJEU under article 267 of the Treaty on the Functioning of the European Union.
+The suggested reference would raise the question whether the interpretation of section 43 of the VATA which I favour is compatible with the concept of the single taxable person in article 11 of the Principal Directive.
+I am satisfied that it is neither necessary nor appropriate to make such a reference because a ruling by the CJEU on the nature of the single taxable person is not necessary for the determination of this appeal: Srl CILFIT v Ministry of Health (Case C 283/81) [1982] ECR 3415.
+Whether in United Kingdom law the representative member is seen as the single taxable person or as the representative of a quasi person which is the aggregate of the companies in the VAT group and which itself is to be recognised in domestic law, the outcome of this appeal would be the same.
+This is because Carlton made its claims in its own interest and not on behalf of either the representative member or the extant VAT group of which it had ceased to be a member.
+A ruling by the CJEU that a member of a VAT group is a member of a single taxable person would not alter that conclusion.
+TCL also suggested that Schedule 1 to the VATA, which implements the second paragraph of article 11 of the Principal Directive by creating a single taxable person to counter tax avoidance, was inconsistent with the interpretation of section 43 which I favour.
+I disagree.
+Paragraphs 1A and 2 of Schedule 1 implement this part of article 11 by empowering HMRC to make a direction that the persons named in that direction are to be treated as a single taxable person, which is registered in respect of taxable supplies.
+Paragraph 2 provides that on the making of the direction (i) the persons affected by the direction are to give a name in which the taxable person is to be registered, (ii) provisions which are equivalent to section 43(1)(b) and (c), and the tailpiece of section 43(1) imposing joint and several liability on the constituent members, are applied, (iii) a failure by the taxable person to comply with a requirement imposed by of under the VATA is treated as a failure by each of the members severally and (iv) subject to the foregoing, the constituent members are treated as a partnership carrying on the business of the taxable person.
+Thus paragraph 2 of Schedule 1 implements the second paragraph of article 11 by treating the persons who are named in the direction as members of a partnership carrying on the business of the taxable person.
+In other words, in domestic law the partnership is the mechanism by which the persons subjected to the direction are treated as a single taxable person and no separate quasi person is required.
+I see no inconsistency between these provisions in Schedule 1 and the interpretation of section 43 which I favour.
+Conclusion
+I would therefore allow the appeal.
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+This appeal raises a short question on the operation by the respondent Commissioners (HMRC) of the Construction Industry Scheme under the Finance Act 2004 (the Act).
+The appellant company (the company) was registered for gross payment under the scheme.
+As is now accepted, it failed to comply with the requirements of the scheme without reasonable excuse.
+In consequence, on 30 May 2011, HMRC exercised their power under the Act to revoke its registration.
+In doing so, they took no account of the likely effect of their action on the companys business.
+The company contends that this represented a failure to take account of a material consideration, in breach of both domestic public law, and of the European Convention on Human Rights (the Convention).
+Factual background
+The facts are set out in detail in the judgment of Henderson LJ in the Court of Appeal: [2016] EWCA Civ 1160.
+A summary is sufficient for present purposes.
+The company is a family run business of water well engineers, started in 1972.
+In 2011 it had about 25 employees, and an annual turnover of about 4.4m, much of it derived from contracts with a small number of major customers.
+It was first registered for gross payment in about 1984, and its registration was regularly reviewed thereafter.
+It first failed a review in July 2009, when its registration was cancelled, and the same occurred in June the following year; but on both occasions the registration was reinstated by HMRC following an appeal.
+Between August 2010 and March 2011 the company was late in making PAYE payments on seven occasions, the delays being generally of a few days, but on one occasion of at least 118 days.
+This led to a further review and to the cancellation which is the subject of the present proceedings.
+The companys appeal succeeded before the First tier Tribunal (FTT) ([2012] UKFTT 639 (TC)), but that decision was not upheld by the Upper Tribunal ([2015] UKUT 0392 (TCC)) or the Court of Appeal ([2016] EWCA Civ 1160).
+It now appeals to this court with permission given by the court itself.
+By section 67(5) of the Act, the cancellation does not take effect until the final determination of the appeal.
+The FTT accepted the companys evidence that major customers would be likely to withdraw work if it lost its gross payment status.
+It found that at the time of HMRCs decision cancellation would have been likely to lead to the loss of around 60% of the companys turnover, and the dismissal of about 80% of its employees, and that recovery would be expected to take about ten years.
+The FTT also recorded that in July 2011 significant changes were made to the companys PAYE systems, with the result that payments thereafter were always made on time.
+We have no information as to what has happened to the business in the period since 2011, nor as to the likely effect of the loss of its status if this appeal fails, and the cancellation now takes effect.
+In that event, the company would not be able to re apply for one year after the cancellation takes effect: section 66(8).
+The legislation
+As Henderson LJ noted, the overall structure and purpose of the legislation has remained broadly the same since the inception of the statutory scheme some 45 years ago.
+He cited Ferris Js description of the background in Shaw v Vicky Construction Ltd [2002] EWHC 2659 (Ch); [2002] STC 1544: in 3.
+In the absence of the statutory provision with which this appeal is concerned Vicky would be entitled, like any other sub contractor, to be paid the contract price in accordance with its contract with the contractor without any deduction in respect of its own tax liability.
+However it became notorious that many sub contractors engaged industry the construction disappeared without settling their tax liabilities, with a consequential loss of revenue to the exchequer. 4.
+In order to remedy this abuse Parliament has enacted legislation, which goes back to the early 1970s, under which a contractor is obliged, except in the case of a sub contractor who holds a relevant certificate, to deduct and pay over to the Revenue a proportion of all payments made to the sub contractor in respect of the labour content of any sub contract.
+The amount so deducted and paid over is, in due course, allowed as a credit against the sub contractor's liability to the
+Revenue
+The relevant provisions in the present case are contained in the Finance Act 2004, Part 3 Chapter 3 Construction Industry Scheme.
+The main operative provisions are section 61, which provides for deductions on account of tax from contract payments as defined; and section 60 which excludes from the definition payments made to a person registered for gross payment when the payment is made.
+Registration of sub contractors is governed by sections 63 and 64.
+Section 63 provides that if HMRC are satisfied that the relevant requirements of sections 63 and 64 are satisfied in respect of a company, it must be registered for gross payment; but, if not, it must be registered for payment under deduction.
+Henderson LJ rightly observed (para 23) that the registration provisions are highly prescriptive, HMRC having no discretion at this stage; and that payment under deduction is the default position.
+The detailed requirements for registration of a company are set out in Part 3 of Schedule 11.
+Again these requirements were rightly described by Henderson LJ as highly prescriptive (paras 27 28).
+Relevant in the present case is para 12 which sets out The compliance test.
+This generally requires the company to have complied, in the qualifying period of 12 months preceding the application, with all obligations imposed on it under the Tax Acts or the Taxes Management Act 1970.
+This is subject to certain exceptions prescribed by regulations for failures to be treated as satisfying the relevant condition (prescribed minor failures, as Henderson LJ described them) (para 12(2)).
+Also a company that has failed to comply is treated as satisfying the condition if HMRC are of the opinion that the company had a reasonable excuse for the failure to comply and that it complied without unreasonable delay after the excuse had ceased (para 12(3)).
+The company must also have paid required social security contributions during the qualifying period (para 12(4)); and have complied with specified obligations under the Companies Act 1985 (para 12(5)).
+Paragraph 13 enables the Treasury by order, subject to approval in draft by the House of Commons, to vary the conditions for registration for gross payment.
+Section 66 provides for cancellation of registration for gross payment: (1) The Board of Inland Revenue may at any time make a determination cancelling a persons registration for gross payment if it appears to them that if an application to register the person for gross (a) payment were to be made at that time, the Board would refuse so to register him, (b) he has made an incorrect return or provided incorrect information (whether as a contractor or as a sub contractor) under any provision of this Chapter or of regulations made under it, or (c) he has failed to comply (whether as a contractor or as a sub contractor) with any such provision As is common ground, the use of the word may in section 66(1) imports an element of discretion, by contrast with the mandatory words of section 63.
+The dispute is as to its scope.
+Where registration for gross payment is cancelled under section 66(1), the person must be registered for payment under deduction (section 66(6)).
+As already noted, he may not reapply for registration for gross payment for one year after the cancellation takes effect (section 66(8)), but the effect of the cancellation is suspended pending determination of an appeal (section 67(5)).
+By section 67 a person aggrieved by cancellation of registration may appeal by notice given to HMRC within 30 days.
+Provision for HMRC review or determination by the tribunal are set out in sections 49Aff of the Taxes Management Act 1970.
+A favourable conclusion on HMRC review is treated as if it were an agreement for settlement under section 54, and so equivalent to a determination of the appeal (section 49F(2)).
+As already seen, the first two cancellations were disposed of in this way.
+However, on the third occasion, HMRC maintained its position and the appeal accordingly was referred to the tribunal.
+Section 102 of the 1970 Act gives HMRC a general power in their discretion [to] mitigate any penalty.
+It is not however suggested that cancellation of registration can be treated as a penalty within this provision.
+under Article 1 of the First Protocol to the Convention (A1P1): In the alternative, the company relies on its right to protection of property Every natural or legal person is entitled to the peaceful enjoyment of his possessions.
+No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
+The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
+The decisions below
+As already noted, the FTT allowed the appeal, holding that HMRC had been wrong not to take account of the likely impact on the companys business.
+The tribunal described section 66 as giving a general unfettered discretion to take account of the impact on a business of cancellation.
+It thought that HMRC must have itself have taken some account of such factors in its decisions on the two reviews, even though no specific reasons were given.
+It saw good reasons for the distinction between registration and cancellation, because of the serious implications of cancellation for an existing business (paras 60 62).
+As already noted, the Upper Tribunal and the Court of Appeal took a different view.
+It is unnecessary to repeat their detailed reasoning.
+Henderson LJ approach is encapsulated in the following passage: 60.
+As a matter of first impression, I cannot find any indication in this tightly constructed statutory scheme that Parliament intended HMRC to have the power, and still less a duty, to take into account matters extraneous to the CIS regime, when deciding whether or not to exercise the power of cancellation in section 66(1).
+By matters extraneous to the CIS regime I mean in particular, in the present context, matters which do not relate, directly or indirectly, to the requirements for registration for gross payment, and to the objective of securing compliance with those requirements.
+My preliminary view, therefore, is that consideration of the financial impact on the taxpayer of cancellation would fall well outside the intended scope of the power.
+He found nothing in the submissions to displace that first impression.
+In particular, he saw no difficulty in explaining the discretion given by section 66, as compared with the registration provisions, given the highly prescriptive nature of the regime: It seems to me entirely appropriate, and a substantial protection for the registered person, that HMRC should then be given a discretion whether or not to exercise the power of cancellation, even in cases where the condition in section 66(1)(a) is satisfied.
+The Upper Tribunal gave two examples, in para 64 of the UT Decision, quoted above, of cases where HMRC might properly exercise such discretion in the taxpayers favour, without travelling outside what I would regard as the proper scope of the power.
+It needs to be remembered, in this connection, that the reasonable excuse exception does not apply to all the requirements of the compliance test, and in the absence of any discretion even a single minor failure to pay national insurance contributions on the due date, or a minor failure to comply with one of the Companies Act requirements, would be fatal, even if there were a reasonable excuse for the non compliance.
+Similarly, the rigid structure of Regulation 32 itself leaves no scope for the exercise of any discretion, even if the relevant test was failed by a narrow margin, the amount involved was relatively small, and although (when viewed in isolation) there was no reasonable excuse for the non compliance, there was nevertheless good reason to suppose that it would not be repeated.
+I therefore remain unpersuaded that there is any need to broaden the scope of the discretion conferred by section 66(1) in order to provide it with any worthwhile content. (para 63)
+In respect of the alternative argument under the Convention, Henderson LJ noted (para 37) that it was common ground before the Court of Appeal that both registration for gross payment, and the contractual right to payment of the contract price, constituted possessions for the purposes of A1/P1.
+However, he did not accept that any interference with those possessions was disproportionate: Given the practical and cash flow advantages of registration for gross payment, it is always probable that cancellation of the registration will seriously affect the taxpayer's business.
+Far from being exceptional, such consequences are likely to be the norm, and taxpayers must be taken to be well aware of the risks to their business which cancellation will bring.
+In individual cases, of which this may perhaps be one, the result may seem harsh; but a degree of harshness in a regime which is designed to counter tax evasion, and where continued compliance is within the power of the sub contractor, cannot in my view be characterised as disproportionate.
+Both deterrence, and ease of compliance, are important factors which help to make the CIS scheme as a whole clearly compliant with A1P1 (para 80)
+The submissions in this court
+The company (by Mr Chacko and Miss Boyd of Counsel) argue that the discretion given by section 66 should be taken at face value.
+It is in terms unfettered, and there is nothing to indicate an intention to exclude consideration of the practical effect of cancellation.
+Absent a contrary indication, they submit, the consequences of the exercise of a power must be assumed to be a relevant consideration.
+They contrast, for example, Schedule 56, para 9 to the Finance Act 2009, which provides for mitigation of certain penalties in special circumstances, but specifically excludes consideration of the taxpayers ability to pay.
+If Parliament had wished to limit the scope of the discretion under section 66 it would have used express words.
+There was no logical dividing line between the scope of the discretion accepted as permissible by the Court of Appeal, and that argued for by the company.
+Nor was a broader discretion inconsistent with the proper exercise of HMRCs statutory functions, as illustrated for example by the wide discretion accepted as appropriate in the context of customs penalties: see Denley v Revenue and Customs Comrs [2017] UKUT 340 (TCC), paras 13 14.
+Such a discretion also reflects the well established proposition that removal of an advantageous trading status has a more serious impact on a business than refusal to grant the status in the first place.
+They cite the common law principle of proportionality as applied in the well known case of R v Barnsley Metropolitan Borough Council, Ex p Hook [1976] 1 WLR 1052, 1057, where Lord Denning MR said: [T]here are old cases which show that the court can interfere by certiorari if a punishment is altogether excessive and out of proportion to the occasion It is quite wrong that the Barnsley Corporation should inflict upon [Mr Hook] the grave penalty of depriving him of his livelihood.
+That is a far more serious penalty than anything the magistrates could inflict.
+He is a man
+of good character, and ought not to be penalised thus
+In the alternative, as in the courts below, they rely on A1/P1.
+As was accepted before the Court of Appeal, they submit that cancellation clearly involves an interference with the possessions represented by (at least) the sub contractors entitlement to the full contract price or the bundle of rights inherent in registration.
+Although the article preserves the right of the state to enforce such laws as it deems necessary to secure the payment of tax, that is still subject to the requirement of proportionality.
+They rely on the words of Lord Phillips MR in Lindsay v Customs and Excise Comrs [2002] EWCA Civ 267; [2002] 1 WLR 1766, para 52: Under Article 1 of the First Protocol to the Convention such deprivation will only be justified if it is in the public interest.
+More specifically, the deprivation can be justified if it is to secure the payment of taxes or other contributions or penalties.
+The action taken must, however, strike a fair balance between the rights of the individual and the public interest.
+There must be a reasonable relationship of proportionality between the means employed and the aim pursued I would accept [counsels] submission that one must consider the individual case to ensure that the penalty imposed is fair.
+However strong the public interest, it cannot justify subjecting an individual to an interference with his fundamental rights that is unconscionable.
+They rely to the same effect on the necessary balance as described by Lord Reed in Bank Mellat v Her Majestys Treasury (No 2) [2014] AC 700, para 74: whether, balancing the severity of the measures effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.
+This it is submitted can only be done by assessing the severity of the consequences for the particular individual in question, even if the legislative scheme taken as a whole is proportionate.
+For HMRC Mr Eadie QC generally supports the reasoning of the Court of Appeal.
+In respect of the Convention, he does not accept that cancellation involves an interference with a possession for the purposes of A1P1.
+The subcontractors right to payment of the contract price is in law subject to the limits imposed by the statutory scheme.
+Similarly, any benefits from registration flow from the statutory scheme and are subject to its conditions, including the risk of cancellation.
+He relies on the distinction drawn by the Strasbourg court in JA Pye (Oxford) Ltd v United Kingdom (2006) 43 EHRR 3 (the same point did not arise in the Grand Chamber: (2008) 46 EHRR 45).
+At para 51 the court considered the circumstances in which a legislative provision is to be regarded as an incident of, or limitation on, the applicants property right at the time of its acquisition.
+It explained: Article 1 does not cease to be engaged merely because a person acquires property subject to the provisions of the general law, the effect of which is in certain specified events to bring the property right to an end, and because those events have in fact occurred.
+Whether it does so will depend on whether the law in question is properly to be seen as qualifying or limiting the property right at the moment of acquisition or, whether it is rather to be seen as depriving the owner of an existing right at the point when the events occur and the law takes effect.
+It is only in the former case that article 1 may be held to have no application. (Emphasis added) The present case, Mr Eadie submits, comes clearly into the former category.
+The power of cancellation for non compliance is an intrinsic part of the possession from the moment of acquisition; its exercise cannot engage the article.
+In any event, he submits, it is clearly within the wide margin allowed by the Convention in fiscal matters: see Gasus Dosier und Frdentechnik GmbH v Netherlands (1995) 20 EHRR 403, para 59.
+National & Provincial Building Society v United Kingdom (1997) 25 EHRR 127, para 80.
+The Strasbourg court has also made clear that the margin may extend to the adoption by the state of general measures which apply to pre defined situations regardless of the individual facts of each case even if this might result in individual hard cases: Animal Defenders International v United Kingdom (2013) 57 EHRR 21, para 106.
+Discussion
+Attractively though the appeal has been argued, I have no doubt that the Court of Appeal reached the right conclusion, substantially for the reasons they gave.
+Apart from the Convention, the companys submission comes down to a short point: that is, given the existence of a discretion in section 66, it must in the absence of any specific restriction be treated as an unfettered discretion.
+That to my mind overlooks the basic principle that any statutory discretion must be exercised consistently with the objects and scope of the statutory scheme.
+Like Henderson LJ, I cannot read the power as extending to matters which do not relate, directly or indirectly, to the requirements for registration for gross payment, and to the objective of securing compliance with those requirements (para 60).
+He rightly emphasised the highly prescriptive nature of the scheme.
+This starts with the narrowly defined conditions for registration in the first place, among which the record of compliance with the tax and other statutory requirements is a mandatory element, allowing no element of discretion.
+The same conditions are brought into the cancellation procedure by section 66.
+The mere fact that the cancellation power is not itself mandatory is unsurprising.
+Some element of flexibility may be desirable in any enforcement regime to allow for cases where the failure is limited and temporary (even if not within the prescribed classes) and poses no practical threat to the objectives of the scheme.
+It is wholly inconsistent with that tightly drawn scheme for there to be implied a general dispensing power such as implied by the companys submissions.
+Turning to A1/P1 I see force in Mr Eadies submission that, even accepting that rights conferred by registration amount to possessions, they cannot extend beyond the limits set by the legislation by which they are created.
+However, I find it unnecessary to rest my decision on that point, since I have no doubt that the Court of Appeal were right to hold that any interference was proportionate.
+Once it is accepted that the statute does not in itself require the consideration of the impact on the individual taxpayer, there is nothing in A1/P1 which would justify the court in reading in such a requirement.
+Registration is a privilege conferred by the legislation, which has significant economic advantages, but it is subject to stringent conditions and the risk of cancellation.
+The impact on the company is no different in kind from that which is inherent in the legislation.
+I agree entirely with Henderson LJ that the exercise of the power within the scope of the statutory framework comes well within the wide margin of appreciation allowed to the state for the enforcement of tax.
+For these reasons, I would dismiss the appeal.
diff --git a/UK-Abs/train-data/judgement/uksc-2017-0053.txt b/UK-Abs/train-data/judgement/uksc-2017-0053.txt
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+Between August 2005 and April 2011 Mr Smith, the respondent, who is by trade a plumbing and heating engineer, did work for Pimlico Plumbers Ltd (Pimlico), the first appellant, which conducts a substantial plumbing business in London.
+Mr Mullins, the second appellant, owns Pimlico.
+in an employment tribunal (the tribunal).
+He alleged In August 2011 Mr Smith issued proceedings against Pimlico and Mr Mullins (a) that he had been an employee of Pimlico under a contract of service within the meaning of section 230(1) of the Employment Rights Act 1996 (the Act) and as such he complained, among other things, that Pimlico had dismissed him unfairly contrary to section 94(1) of it; and/or (b) that he had been a worker for Pimlico within the meaning of section 230(3) of the Act and as such he complained that Pimlico had made an unlawful deduction from his wages contrary to section 13(1) of it; and (c) that he had been a worker for Pimlico within the meaning of regulation 2(1) of the Working Time Regulations 1998 (SI 1998/1833) (the Regulations) and as such he complained that Pimlico had failed to pay him for the period of his statutory annual leave contrary to regulation 16 of them; and (d) that he had been in Pimlicos employment within the meaning of section 83(2)(a) of the Equality Act 2010 (the Equality Act) and as such he complained that both Pimlico and Mr Mullins had discriminated against him by reference to disability contrary to section 39(2) of it and had failed to make reasonable adjustments in that regard contrary to section 39(5) of it.
+By a judgment dated 16 April 2012 delivered by Employment Judge Corrigan (the judge), the tribunal decided that Mr Smith had not been an employee of Pimlico under a contract of service; and, by a judgment dated 21 November 2014 delivered by Judge Serota QC, the Employment Appeal Tribunal (the appeal tribunal) dismissed Mr Smiths cross appeal against that decision.
+He has not sought further to challenge it.
+The result is that he cannot proceed with the complaints referred to in para 2(a) above.
+Nevertheless, by that same judgment dated 16 April 2012, the tribunal made three further decisions: (a) that Mr Smith had been a worker for Pimlico within the meaning of section 230(3) of the Act; (b) that he had been a worker for Pimlico within the meaning of regulation 2(1) of the Regulations; and (c) that he had been in Pimlicos employment within the meaning of section 83(2)(a) of the Equality Act.
+Were the decisions on these three threshold issues to be upheld, the result would be that Mr Smith could proceed with the complaints referred to in para 2(b), (c) and (d) above.
+Indeed the tribunal made directions for their substantive consideration.
+Pimlico brought an appeal against the tribunals three further decisions to the appeal tribunal, which dismissed it by that same judgment dated 21 November 2014.
+Pimlico thereupon brought an appeal against the appeal tribunals decision to the Court of Appeal, which on 10 February 2017, by substantive judgments delivered by Sir Terence Etherton MR and Underhill LJ and by a judgment of Davis LJ which agreed with both of them, dismissed it ([2017] ICR 657).
+Today this court determines Pimlicos yet further appeal, which is in form a challenge to the decision of the Court of Appeal but which is in substance a further inquiry into the entitlement of the tribunal to have made the three decisions referred to in para 4 above.
+Pimlico argues that the tribunals reasoning in support of them was inadequate and it asks the court to set them aside and to direct the tribunal to reconsider the three threshold issues.
+It follows that the tribunal held that, although Mr Smith was not an employee under a contract of service, he was an employee within the meaning of section 83(2)(a) of the Equality Act.
+It is regrettable that in this branch of the law the same word can have different meanings in different contexts.
+But it gets worse.
+For, as I will explain, different words can have the same meaning.
+As long ago as 1875 Parliament identified an intermediate category of working people falling between those who worked as employees under a contract of service and those who worked for others as independent contractors.
+For in that year it passed the Employers and Workmen Act, designed to give the county court an enlarged and flexible jurisdiction in disputes between an employer and a workman; and, by section 10, it defined a workman as, in effect, a manual labourer working for an employer under a contract of service or a contract personally to execute any work or labour.
+From 1970 onwards Parliament has taken the view that, while only employees under a contract of service should have full statutory protection against various forms of abuse by employers of their stronger economic position in the relationship, there were self employed people whose services were so largely encompassed within the business of others that they should also have limited protection, in particular against discrimination but also against certain forms of exploitation on the part of those others; and for that purpose Parliament has borrowed and developed the extended definition of a workman first adopted in 1875.
+Thus in 1970 Parliament passed the Equal Pay Act which obliged employers to offer to any woman whom they employed terms equal to those upon which they employed men for the same or equivalent work; and, by section 1(6)(a), it defined the word employed as being under a contract of service or of apprenticeship or a contract personally to execute any work or labour.
+Then, in section 167(1) of the Industrial Relations Act 1971, we find the birth of the modern worker, defined there as a person who works (a) under a contract of employment, or (b) under any other contract whereby he undertakes to perform personally any work or services for another party to the contract who is not a professional client of his .
+Now we have section 230(3) of the Act, in which a worker is defined to include not only, at (a), an employee under a contract of service but also, at (b), an individual who has entered into or works under any other contract whereby the individual undertakes to perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual Other subsections of section 230, to which thankfully it will be unnecessary to refer, proceed to extend the words employee, employment and employed to the situation of a worker falling within subsection (3)(b) and conveniently described as a limb (b) worker.
+Regulation 2(1) of the Regulations defines a worker in terms identical to those in section 230(3) of the Act.
+On its face section 83(2)(a) of the Equality Act defines employment in terms different from those descriptive of the concept of a worker under section 230(3) of the Act and under regulation 2(1) of the Regulations.
+For it defines it as being either under a contract of employment or of apprenticeship or under a contract personally to do work.
+Comparison of the quoted words with the definition of a limb (b) worker in section 230(3) of the Act demonstrates that, while the obligation to do the work personally is common to both, the Equality Act does not expressly exclude from the concept a contract in which the other party has the status of a client or customer.
+As it happens, however, this distinction has been held to be one without a difference.
+Part 5 of the Equality Act, which includes section 83, primarily gives effect to EU law.
+Article 157(1) of the Treaty on the Functioning of the European Union requires member states to ensure application of the principle of equal pay for male and female workers for equal work or work of equal value.
+In Allonby v Accrington and Rossendale College (Case C 256/01) [2004] ICR 1328 the Court of Justice of the European Communities, at paras 67 and 68, interpreted the word workers in what is now article 157(1) as persons who perform services for and under the direction of another person in return for which [they receive] remuneration but excluding independent providers of services who are not in a relationship of subordination with the person who receives the services.
+In Hashwani v Jivraj [2011] UKSC 40, [2011] 1 WLR 1872, the Supreme Court applied the concepts of direction and subordination identified in the Allonby case to its interpretation of a contract personally to do work in the predecessor to section 83(2)(a).
+In Bates van Winkelhof v Clyde & Co LLP [2014] UKSC 32, [2014] 1 WLR 2047, Lady Hale observed at paras 31 and 32 that this interpretation of the section yielded a result similar to the exclusion of work for those with the status of a client or customer in section 230(3) of the Act and in regulation 2(1) of the Regulations.
+She added, however, at para 39 that, while the concept of subordination might assist in distinguishing workers from other self employed people, the Court of Appeal in that case had been wrong to regard it as a universal characteristic of workers.
+Notwithstanding murmurs of discontent in the submissions on behalf of Mr Smith, this court is not invited to review its equation in the Bates van Winkelhof case of the definition of a worker in section 230(3) of the Act with that of employment in section 83(2)(a) of the Equality Act.
+I therefore proceed on the basis that the three decisions of the tribunal referred to at para 4 above stand or fall together; and that it is conceptually legitimate as well as convenient to treat all three of them as having been founded upon a conclusion that Mr Smith was a limb (b) worker within the meaning of section 230(3) of the Act.
+MR SMITHS AGREEMENTS WITH PIMLICO
+Mr. Smith made two written agreements with Pimlico, the first dated 25 August 2005 and the second (which replaced the first) made on 21 September 2009 and wrongly dated 21 September 2010.
+No one has argued that, for the purposes of these proceedings, the agreements have different legal consequences.
+In places they are puzzling.
+In his judgment in the appeal tribunal Judge Serota QC concluded that, on the one hand, Pimlico wanted to present their operatives to the public as part of its workforce but that, on the other, it wanted to render them self employed in business on their own account; and that the contractual documents had been carefully choreographed to serve these inconsistent objectives.
+But the judge rightly proceeded to identify a third objective, linked to the first, namely to enable Pimlico to exert a substantial measure of control over its operatives; and this clearly made development of the choreography even more of a challenge.
+The first agreement was on a printed form but there were manuscript amendments.
+The print described it as a contract; but the manuscript substituted the word agreement.
+Against Mr Smiths name the print explained that it was name of contracted employee; but the manuscript added the prefix sub to the word contracted.
+Against the date of 25 August 2005 the print explained that it was date of commencement of employment; but the manuscript deleted the word employment.
+The agreement provided that its terms were as set out in a manual entitled Company Procedures & Working Practices (the manual) but since, as I will explain, the manual was again incorporated into the second agreement, it is convenient to address it in that context.
+In the second agreement, drafted so as to refer to Pimlico as the Company and to address Mr Smith as you, the terms material to the issue before the court were as follows: You shall provide such building trade services as are within your (a) the Company may terminate [the agreement immediately] if you commit an act of gross misconduct or do anything which brings the Company into disrepute (b) skills in a proper and efficient manner . (c) You shall provide the Services for such periods as may be agreed with the Company from time to time.
+The actual days on which you will provide the Services will be agreed between you and the Company from time to time.
+For the avoidance of doubt, the Company shall be under no obligation to offer you work and you shall be under no obligation to accept such work from the Company.
+However, you agree to notify the Company in good time of days on which you will be unavailable for work. (d) You warrant that you will be competent to perform the work which you agree to carry out [and] you will promptly correct, free of charge, any errors in your work which are notified to you by the Company . (e) If you are unable to work due to illness or injury on any day on which it was agreed that you would provide the Services, you shall notify the Company (f) You acknowledge that you will represent the Company in the provision of the Services and that a high standard of conduct and appearance is required at all times.
+While providing the Services, you also agree to comply with all reasonable rules and policies of the Company from time to time and as notified to you, including those contained in the Company Manual. (g) . you shall be paid a fee in respect of the Services equal to 50% of the cost charged by the Company to the client in relation to labour content only, provided that the Company shall have received clear funds from the client . (h) If an invoice remains unpaid [by the client] for more than one month, the fee payable to you will be reduced by 50%.
+If an invoice remains unpaid for more than six months, you will not receive a fee for the work. (i) security contributions to the appropriate authorities.
+You will provide all your own tools, equipment, materials and other (j) items as shall be required for the performance of the Services, except where it has been agreed that equipment or materials will be provided through the Company.
+The Company may, at a rental price to be agreed with you, provide a vehicle for use in providing the Services If you provide your own materials , you will be entitled to up to 20% trade mark up (pre VAT) on such materials provided [their] cost is at least 3,000 (pre VAT) [and otherwise] up to 12.5% . (k) You will have personal liability for the consequences of your services to the Company and will maintain suitable professional indemnity cover to a limit of 2m You will account for your income tax, value added tax and social (l) You shall at all times keep the Company informed of your other activities which could give rise to a direct or indirect conflict of interest with the interests of the Company, provided that you shall not be permitted at any time to provide services to any Customer other than under this Agreement. (m) you will not for three months following [termination of the agreement] be engaged in any Capacity with any business which is in competition with [the business of the Company nor] for 12 months solicit the business of [any customer of the Company nor] be involved with the provision of goods or services to [him] in the course of any business which is in competition with [that of the Company].
+You are an independent contractor of the Company, in business on (n) your own account.
+Nothing in this Agreement shall render you an employee, agent or partner of the Company and the termination of this Agreement shall not constitute a dismissal for any purpose. (o)
+This Agreement contains the entire agreement between the parties
+The manual was incorporated into the second agreement by virtue of the term recited at para 18(f) above.
+It obliged him to comply with the manual [w]hile providing the Services.
+My view is that the quoted words are apt to have made the manual govern all aspects of Mr Smiths operations in relation to Pimlico; in any event, however, the case proceeded before the tribunal on the basis that even after 2009 the manual remained as much a part of the contract as, on any view, it had previously been.
+Its relevant provisions are as follows: (a) [Y]our appearance must be clean and smart at all times The Company logo ed uniform must always be clean and worn at all times. (b) Normal Working Hours consist of a five day week, in which you should complete a minimum of 40 hours. (c) required, time off or period of unavailability.
+Adequate notice must be given to Control Room for any annual leave (d) Engineers on call between 12.00pm (midnight) 6.00am will qualify for the 100% rate, providing the office has not taken the job booking [or] for the 50% rate if the office takes the job booking. (e) On Call Operatives will be given preference for: Overtime.
+Better jobs.
+Newer vans. (f) Any Operative requiring assistance on any job must inform the customer of the additional charges involved . and obtain the customers approval for such charges. (g) Callbacks [for remedial work] must be treated as a matter of absolute priority by all Operatives.
+No further work will be allocated to any Operative until his Callbacks are attended to Until all issues have been settled and all callbacks resolved any outstanding money will be held back for the last month .
+No payment will be made to that Operative, unless the customer is completely satisfied Any claim made against the Company as a result of the Operatives incompetence/negligence will be passed on to the Operative and his Insurers. (h) No payment will be made to the Operative until payment in full has been received by the office A 50% deduction will be made from the Operatives percentage if payment is received by the office later than one month from the job date Invoices which remain unpaid after six months from the date of the job will be written off. (i) ID card must be carried when working for the Company. (j) Operatives will be issued with a mobile telephone system The mobile telephone charges, plus VAT, will be deducted from wages on a monthly basis.
+Pimlico Plumbers ID Cards are issued to every Operative Your (k) Any individual undertaking private work for or as a result of contacts gained during your working week and contravening the signed contract will be dismissed immediately (l) Operatives who fail to observe the rules outlined in this working practice manual in respect of procedures or conduct, will be given a warning and may thereafter be subject to instant dismissal. (m) Wages will be paid directly into the Operatives designated bank or building society account (n) The following standard rate of Van Rental Charges, payable monthly in advance, allows Operatives to work on a Self employed basis: 120.00 + VAT.
+This figure will increase if the Operative is involved in consistent vehicle damage.
+PERSONAL PERFORMANCE?
+If he was to qualify as a limb (b) worker, it was necessary for Mr Smith to have undertaken to perform personally his work or services for Pimlico.
+An obligation of personal performance is also a necessary constituent of a contract of service; so decisions in that field can legitimately be mined for guidance as to what, more precisely, personal performance means in the case of a limb (b) worker.
+Express & Echo Publications Ltd v Tanton [1999] ICR 693 was a clear case.
+Mr Tanton contracted with the company to deliver its newspapers around Devon.
+A term of the contract provided: In the event that the contractor is unable or unwilling to perform the services personally he shall arrange at his own expense entirely for another suitable person to perform the services.
+The Court of Appeal held that the term defeated Mr Tantons claim to have been employed under a contract of service.
+Nevertheless, in his classic exposition of the ingredients of a contract of service in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497, Mackenna J added an important qualification.
+He said at p 515: Freedom to do a job either by ones own hands or by anothers is inconsistent with a contract of service, though a limited or occasional power of delegation may not be He cited Atiyahs Vicarious Liability in the Law of Torts (1967), in which it was stated at p 59 that it seems reasonably clear that an essential feature of a contract of service is the performance of at least part of the work by the servant himself.
+Where, then, lie the boundaries of a right to substitute consistent with personal performance?
+Mr Smiths contracts with Pimlico, including the manual, gave him no express right to appoint a substitute to do his work.
+There were three passing references in the manual to his engagement of other people, of which the most explicit was the reference, quoted at para 19(f) above, to his requiring assistance.
+The evidence was indeed that some of Pimlicos operatives were accompanied by an apprentice or that they brought a mate to assist them.
+But assistance in performance is not the substitution of performance.
+Equally the tribunal found that, where a Pimlico operative lacked a specialist skill which a job required, he had a right to bring in an external contractor with the requisite specialism.
+But again, since in those circumstances the operative continued to do the basic work, he is not to be regarded as having substituted the specialist to perform it.
+But the tribunal found that Mr Smith did have a limited facility to substitute.
+For he had accepted that, if he had quoted for work but another more lucrative job had subsequently arisen, he would be allowed to arrange for the work to be done by another Pimlico operative.
+The tribunal rejected Pimlicos contention that there was a wider facility to substitute and concluded that there was no unfettered right to substitute at will.
+The Court of Appeal interpreted the tribunals findings to be that Mr Smiths facility to substitute another Pimlico operative to perform his work arose not from any contractual right to do so but by informal concession on the part of Pimlico.
+In circumstances in which the contract provided no express right to substitute and included a clause that it contained the entire agreement between the parties, there is much to be said for such an analysis.
+In the absence of escape from it by the construction of a collateral contract, an entire agreement clause is likely to be effective in preventing extraneous contractual terms from arising: MWB Business Exchange Centres Ltd v Rock Advertising Ltd [2018] UKSC 24, para 14.
+But the Court of Appeals analysis does not sit easily with some of the words chosen by the tribunal to describe the facility; and in what follows, I will assume (without deciding) that it is the product of a contractual right.
+Having found that Mr Smith had the right to substitute another Pimlico operative to perform his work, the tribunal unfortunately saw fit to turn its attention to the terms of a revised contract between Pimlico and its operatives which was introduced following the termination of Mr Smiths contract.
+The tribunal quoted two of the new terms.
+One of them gave the operative a right to assign or subcontract his duties subject to the prior consent of the Company.
+The other obliged him either to perform his duties personally or to engage another Pimlico contractor to do it.
+The two terms appear to be inconsistent, unless they can be reconciled on the basis that Pimlicos prior consent would always be necessary but would not be given unless the assignee of the duties were to be another Pimlico operative.
+At all events the two new terms led the judge to comment: In my view this clarifies that [Mr Smith] was contracted to provide work personally with, at most, only a limited power to substitute either to other internal operatives or with the prior consent of [Pimlico].
+My view, with respect, is that the two new terms did not clarify anything at all.
+The judges qualification reflected in the words at most seems to indicate an element of uncertainty on her part about their meaning.
+At all events her comment leads Pimlico to argue either that the judge found Mr Smith to have been entitled to substitute not only another Pimlico operative but also, with its consent, any other plumber or that her findings are so confused that the exercise should be directed to be conducted again.
+So Pimlico there put before the tribunal an irrelevant contract, cast in highly confusing terms, and now complains that the tribunals interpretation of them was highly confused.
+Irrespective of whether a wider right of substitution would have been fatal to Mr Smiths claim, this court can in my view be confident that the tribunal found, and was entitled to find, that Mr Smiths only right of substitution was of another Pimlico operative.
+Such is the judges express finding both in the central part of her judgment and again in her conclusion.
+Ambiguous terms of a contract to which Mr Smith was not a party cannot widen it.
+So the question becomes: was Mr Smiths right to substitute another Pimlico operative inconsistent with an obligation of personal performance? It is important to note that the right was not limited to days when, by reason of illness or otherwise, Mr Smith was unable to do the work.
+His own example of an opportunity to accept a more lucrative assignment elsewhere demonstrates its wider reach.
+The judge concluded that the right to substitute another Pimlico operative did not negative Mr Smiths obligation of personal performance.
+She held that it was a means of work distribution between the operatives and akin to the swapping of shifts within a workforce.
+In challenging the tribunals conclusion Pimlico relies heavily on the decision of the Court of Appeal in Halawi v WDFG UK Ltd (t/a World Duty Free) [2014] EWCA Civ 1387, [2015] 3 All ER 543.
+Mrs Halawi had been working as a beauty consultant in a duty free outlet at Heathrow airport, managed by World Duty Free.
+It was the latters practice to grant space in the outlet to cosmetic companies, in which consultants in the uniform of the companies would sell their products.
+Shiseido, a Japanese cosmetic company, took space in the outlet; and Mrs Halawis role was to sell Shiseidos products there.
+But her contract was not with Shiseido, still less with World Duty Free.
+Her contract, or rather her service companys contract, was with a management services company which sold her services on to Shiseido; and then there was a contract between Shiseido and World Duty Free for an accounting between them referable to sales.
+Notwithstanding the absence of a contract between it and Mrs Halawi, World Duty Free controlled the outlet and in a handbook purported to impose certain rules upon those who worked there.
+One was that, instead of working personally, a consultant could appoint a substitute provided that she had both an airside pass and the approval of World Duty Free to work in an outlet.
+In due course World Duty Free withdrew its approval of Mrs Halawi to work in the outlet and thereby prevented her from continuing to do so; but she was held not to be entitled to bring a claim of unlawful discrimination against World Duty Free in that regard.
+The primary answer to Mrs Halawis claim, most clearly given by the appeal tribunal but apparently adopted by the Court of Appeal, was that she had no contract with World Duty Free of any sort.
+But the Court of Appeal saw fit also to hold, secondly, that the necessary degree of subordination of Mrs Halawi to World Duty Free was absent: and, thirdly, that her power of substitution (which Pimlico suggests to be analogous to Mr Smiths right to substitute another operative) negatived any obligation of personal performance.
+But her so called power of substitution was not a contractual right at all.
+World Duty Frees declaration that Mrs Halawi might appoint a substitute reflected its understandable lack of interest in personal performance on her part under her contract with her own service company and/or under its contract with the management services company.
+Its interest was only that someone sufficiently presentable and competent to have secured its approval to work in an outlet, and of course in possession of an airside pass, should attend on behalf of Shiseido each day.
+In my view Mrs Halawis case is of no assistance in perceiving the boundaries of a right to substitute consistent with personal performance.
+The case of Mirror Group Newspapers Ltd v Gunning [1986] ICR 145 concerned the right to distribute that companys Sunday newspapers around Sheffield.
+Mrs Gunnings father had held the distributorship but, on his retirement, the company refused to renew it in her favour.
+She alleged that its refusal was discriminatory and to that end she needed to establish that her fathers contract had required personal performance of it on his part.
+In allowing the companys appeal the Court of Appeal held at pp 151 and 156 that Mrs Gunning had failed to show that the dominant purpose of her fathers contract had been that he should perform it personally; instead the purpose had been that the companys Sunday newspapers should be efficiently distributed around Sheffield.
+But in James v Redcats (Brands) Ltd [2007] ICR 1006 Elias J, as president of the appeal tribunal, convincingly suggested at paras 65 to 67 that an inquiry into the dominant purpose of a contract had its difficulties; that, even when a company was insistent on personal performance, its dominant purpose in entering into the contract was probably to advance its business; and that the better search might be for the dominant feature of the contract.
+In the Hashwani case, cited in para 14 above, Lord Clarke of Stone cum Ebony, at paras 37 to 39, referred to the suggestions of Elias J in the James case with approval but stressed that, although it might be relevant to identify the dominant feature of a contract, it could not be the sole test.
+The sole test is, of course, the obligation of personal performance; any other so called sole test would be an inappropriate usurpation of the sole test.
+But there are cases, of which the present case is one, in which it is helpful to assess the significance of Mr Smiths right to substitute another Pimlico operative by reference to whether the dominant feature of the contract remained personal performance on his part.
+The terms of the contract made in 2009 are clearly directed to performance by Mr Smith personally.
+The right to substitute appears to have been regarded as so insignificant as not to be worthy of recognition in the terms deployed.
+Pimlico accepts that it would not be usual for an operative to estimate for a job and thereby to take responsibility for performing it but then to substitute another of its operatives to effect the performance.
+Indeed the terms of the contract quoted in para 18 above focus on personal performance: they refer to your skills, to a warranty that you will be competent to perform the work which you agree to carry out and to a requirement of a high standard of conduct and appearance; and the terms of the manual quoted in para 19 above include requirements that your appearance must be clean and smart, that the Pimlico uniform should be clean and worn at all times and that [y]our [Pimlico] ID card must be carried when working for the Company.
+The vocative words clearly show that these requirements are addressed to Mr Smith personally; and Pimlicos contention that the requirements are capable also of applying to anyone who substitutes for him stretches their natural meaning beyond breaking point.
+The tribunal was clearly entitled to hold, albeit in different words, that the dominant feature of Mr Smiths contracts with Pimlico was an obligation of personal performance.
+To the extent that his facility to appoint a substitute was the product of a contractual right, the limitation of it was significant: the substitute had to come from the ranks of Pimlico operatives, in other words from those bound to Pimlico by an identical suite of heavy obligations.
+It was the converse of a situation in which the other party is uninterested in the identity of the substitute, provided only that the work gets done.
+The tribunal was entitled to conclude that Mr Smith had established that he was a limb (b) worker unless the status of Pimlico by virtue of the contract was that of a client or customer of his.
+CLIENT OR CUSTOMER?
+It is unusual for the law to define a category of people by reference to a negative in this case to another persons lack of a particular status.
+It usually attempts to define positively what the attributes of the category should be.
+In Byrne Bros (Formwork) Ltd v Baird [2002] ICR 667 at para 16 Mr Recorder Underhill QC (as Underhill LJ then was) described as clumsily worded the requirement that the other party be neither a client nor a customer.
+It is hard to disagree.
+In determining whether Pimlico should be regarded as a client or customer of Mr Smith, how relevant was it to discern the extent of Pimlicos contractual obligation to offer him work and the extent of his obligation to accept such work as it offered to him? The answer is not easy.
+Clearly the foundation of his claim to be a limb (b) worker was that he had bound himself contractually to perform work for Pimlico.
+No one has denied that, while he was working on assignments for Pimlico, he was doing so pursuant to a contractual obligation to Pimlico.
+Does that not suffice? Is it necessary, or even relevant, to ask whether Mr Smiths contract with Pimlico cast obligations on him during the periods between his work on its assignments?
+In the event both of the specialist tribunals and the Court of Appeal all chose, albeit with difficulty, to wrestle with whether Mr Smiths contract with Pimlico was an umbrella contract, in other words was one which cast obligations on him during the periods between his work on assignments for Pimlico; or whether it was a contract which cast obligations on him only during his performance of such successive assignments as were offered to him by Pimlico and accepted by him.
+The difficulty arose again from Pimlicos apparently inconsistent contractual provisions.
+The 2009 contract provided (see para 18(c) above): the Company shall be under no obligation to offer you work and you shall be under no obligation to accept such work from the Company.
+But the manual stated (see para 19(b) above): Normal Working Hours consist of a five day week, in which you should complete a minimum of 40 hours.
+Pimlico suggests that, to the extent that its contract and its manual are inconsistent, the former should prevail.
+But the tribunal found that a purposive construction of the two provisions enabled them to be reconciled.
+It found, in accordance with Mr Smiths evidence, that Pimlico had no obligation to provide him with work on any particular day and if there was not enough work [it] would not have to provide him with work and he would not be paid.
+The Court of Appeal construed this finding, in my view legitimately, as being that, if by contrast it did have enough work to offer to Mr Smith, Pimlico would be obliged to offer it to him.
+In other words Pimlicos contractual obligation was to offer work to Mr Smith but only if it was available; indeed, if the work was available, it would seem hard to understand why in the normal course of events Pimlico would not be content to be obliged to offer it to him.
+Mr Smiths contractual obligation by contrast was in principle to keep himself available to work for up to 40 hours on five days each week on such assignments as Pimlico might offer to him.
+But his contractual obligation was without prejudice to his entitlement to decline a particular assignment in the light (for example) of its location; and of course it did not preclude Pimlico from electing, as seems to have occurred, not to insist on his compliance with the obligation in any event.
+So the tribunal found, legitimately, that there was an umbrella contract between Mr Smith and Pimlico.
+It is therefore unnecessary to consider the relevance to limb (b) status of a finding that contractual obligations subsisted only during assignments.
+The leading authority in this respect is now Windle v Secretary of State for Justice [2016] ICR 721, in which Underhill LJ suggested at para 23 that a persons lack of contractual obligation between assignments might indicate a lack of subordination consistent with the other party being no more than his client or customer.
+The energetic submission of Ms Monaghan QC on behalf of Mr Smith that, on the contrary, it might indicate a greater degree of subordination to that other party must await appraisal on another occasion.
+Mr Smith correctly presented himself as self employed for the purposes of income tax and VAT.
+His accounts for the six years ending on 5 April 2011 were put in evidence.
+Mr Smith clearly took advantage of the facility to purchase materials himself for use on each assignment and to charge the customer, albeit funnelled through Pimlico, 20% more than he had paid for them.
+His accounts for the year ended 5 April 2011 showed turnover of about 131,000, cost of materials of about 53,000 and, following deduction of motor and other expenses, a net pre tax profit of about 48,000.
+These accounts are the starting point for Pimlicos submission that the tribunal fell into appealable error in holding that its status was not that of a client or customer of Mr Smith.
+By reference to what considerations should an inquiry into the existence or otherwise of this status be conducted? In Hospital Medical Group Ltd v Westwood [2012] EWCA Civ 1005, [2013] ICR 415, Maurice Kay LJ observed at para 20 that there was no single key with which to unlock the words of the statute in every case.
+How could there be? If there was a single key, it would amount to a gloss.
+But there are in particular two authorities which may prove to be of some assistance in the conduct of the inquiry.
+The first is the judgment of Langstaff J, sitting with others in the appeal tribunal in Cotswold Developments Construction Ltd v Williams [2006] IRLR 181.
+At para 53 he said a focus upon whether the purported worker actively markets his services as an independent person to the world in general (a person who will thus have a client or customer) on the one hand, or whether he is recruited by the principal to work for that principal as an integral part of the principals operations, will in most cases demonstrate on which side of the line a given person falls.
+The second is the judgment of Lord Clarke in the Hashwani case cited at para 14 above.
+A contractual provision for disputes to be resolved by arbitration provided that all the arbitrators should be members of the Ismaili community.
+One party proposed to appoint Sir Anthony Colman, a retired High Court judge, as one of the arbitrators.
+He was not a member of the Ismaili community.
+Would an arbitrator be a worker, entitled to protection from discrimination on religious grounds? There was no doubt that an arbitrator would be obliged to perform his work personally.
+But there was a further question, which we in the present case are casting as an inquiry into the status of Pimlico as a client or customer.
+In para 34 Lord Clarke, with whom the other members of the court agreed, identified the question (already summarised in para 14 above) as being whether, on the one hand, the person concerned performs services for and under the direction of another person in return for which he or she receives remuneration or, on the other hand, he or she is an independent provider of services who is not in a relationship of subordination with the person who receives the services.
+At para 40 Lord Clarke proceeded to address that question in relation to the obligations of an arbitrator.
+He concluded that an arbitrator would not be subject to the direction of, nor be subordinate to, those with whom he contracted and so would not be a worker entitled to protection against discrimination.
+To these two authorities, Pimlico would add a third, namely the decision of the Court of Justice of the European Union (the CJEU) in FNV Kunsten Informatie en Media v Staat der Nederlanden (Case C 413/13) [2015] All ER (EC) 387.
+A Dutch union negotiated terms for the minimum remuneration of self employed musicians when engaged as substitutes to play in Dutch orchestras.
+But were the terms anti competitive under EU law? Not (so held the CJEU) if the musicians were false self employed, being a concept which seems to equate to that of a limb (b) worker.
+The court held: 33. a service provider can lose his status of an independent trader if he does not determine independently his own conduct on the market, but is entirely dependent on his principal, because he does not bear any of the commercial risks arising out of the latters activity and operates as an auxiliary within the principals undertaking It follows that the status of worker within the meaning 36. of EU law is not affected by the fact that a person has been hired as a self employed person under national law, for tax, administrative or organisational reasons, as long as that person acts under the direction of his employer as regards, in particular, his freedom to choose the time, place and content of his work , does not share in the employers commercial risks and, for the duration of that relationship, forms an integral part of that employers undertaking, so forming an economic unit with that undertaking The CJEUs examples of relevant considerations are helpful but should be applied cautiously.
+In Percy v Board of National Mission of the Church of Scotland [2005] UKHL 73, [2006] 2 AC 28, the question was whether Ms Percy, a former minister of the Church of Scotland, was entitled to claim that the Church had unlawfully discriminated against her on grounds of sex.
+The appellate committee held that she was a worker so was entitled to present her claim.
+Lady Hale observed at para 146 that [t]he fact that the worker has very considerable freedom and independence in how she performs the duties of her office does not take her outside the definition.
+In support of its contention that it was a client or customer of Mr Smith, Pimlico makes four substantial points: (a) Without prejudice to his overall obligation (which Pimlico has to accept for this purpose) to make himself available to accept work, if offered, for up to 40 hours each week, Mr Smith was entitled to reject any particular offer of work, whether because of the location or timing of it or for any other reason. (b) Subject to that overall obligation, Mr Smith was free to take outside work albeit not if offered by Pimlicos clients.
+In a concluding paragraph the tribunal observed that he did not elect to take outside work; but, as Pimlico rightly objects, the analysis must be of his contractual entitlement rather than of his election not to exercise it. (c) Pimlico reserved no right to supervise, or otherwise interfere with, the manner in which Mr Smith did his work. (d) There were financial risks, as well as advantages, consequent upon Mr Smiths work for Pimlico.
+He was bound by the estimate for the price of the work which he had given to the client.
+Pimlico did not pay him, not even for any materials which he had supplied, until the client had paid it; if a client paid more than one month late, its payment to him was halved; and, if a client failed to pay within six months, it paid him nothing, not even for his materials, and irrespective of whether the client made payment thereafter.
+If a client complained about his work, even about work done by another Pimlico operative whom he had substituted to do it, it was Mr Smith who was responsible for remedying it and who received no payment referable to it until he had done so.
+On the other hand, there were features of the contract which strongly militated against recognition of Pimlico as a client or customer of Mr Smith.
+Its tight control over him was reflected in its requirements that he should wear the branded Pimlico uniform; drive its branded van, to which Pimlico applied a tracker; carry its identity card; and closely follow the administrative instructions of its control room.
+The severe terms as to when and how much it was obliged to pay him, on which it relied, betrayed a grip on his economy inconsistent with his being a truly independent contractor.
+The contract made references to wages, gross misconduct and dismissal.
+Were these terms ill considered lapses which shed light on its true nature? And then there was a suite of covenants restrictive of his working activities following termination.
+Accurate though it would be, it would not be a proper disposal of this issue to describe this courts own conclusion to be that Pimlico cannot be regarded as a client or customer of Mr Smith.
+The proper disposal is, of course, for it to declare that, on the evidence before it, the tribunal was, by a reasonable margin, entitled so to conclude.
+At the end of its submissions Pimlico appends a thin point, into which not even Mr Linden QC on its behalf has proved able to inject substance, namely that the tribunal had failed to address the factors upon which, in relation to this second issue, Pimlico had in particular relied.
+The complaint turns out to be little more than that the judge had not in her conclusion repeated references to factors which she had addressed earlier.
+I will not lengthen this judgment by elaborating upon the poverty of this particular complaint.
+CONCLUSION
+I would dismiss Pimlicos appeal.
+The result of doing so would be that the substantive claims of Mr Smith as a limb (b) worker could proceed to be heard in the tribunal.
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+If an employee is dismissed on written notice posted to his home address, when does the notice period begin to run? Is it when the letter would have been delivered in the ordinary course of post? Or when it was in fact delivered to that address? Or when the letter comes to the attention of the employee and he has either read it or had a reasonable opportunity of doing so?
+Given the vast numbers of working people who might be affected by this issue, it is perhaps surprising that it has not previously come before the higher courts.
+This Court, in Gisda Cyf v Barratt [2010] UKSC 41; [2010] ICR 1475, held that the effective date of termination for the purpose of unfair dismissal claims under the Employment Rights Act 1996 was the date on which the employee opened and read the letter summarily dismissing her or had a reasonable opportunity of doing so.
+But the Court was careful to limit that decision to the interpretation of the statutory provisions in question.
+The common law contractual position might be quite different, as indeed the Court of Appeal had said that it was: [2009] EWCA Civ 648; [2009] ICR 1408.
+There is nothing to prevent the parties to a contract of employment from making express provision, both as to how notice may or must be given and for when it takes effect, as happened in Geys v Socit Gnrale, London Branch [2012] UKSC 63; [2013] 1 AC 523, but that was not done in this case.
+We are considering, therefore, the content of a term which must be implied into the contract of employment.
+The employer contends that notice is given when the dismissal letter is delivered to the employees address (which by statute is deemed to be when the letter would be delivered in the ordinary course of post unless the contrary is shown).
+The employee contends that notice is not given until the letter comes to the attention of the employee and she has had a reasonable opportunity of reading it.
+The facts
+The essential facts are very simple.
+Mrs Haywood was continuously employed by various bodies in the NHS for many years.
+On 1 November 2008, she began employment with the Newcastle and North Tyneside Community Health PCT.
+On 1 April 2011, her employment transferred to the Newcastle upon Tyne NHS Foundation Trust (the Trust) on the same terms and conditions as before.
+Section 19 of her contract of employment with the PCT provided that Unless there is mutual agreement that a different period should apply, this employment may be terminated by you or NPCT by the notice period as set out in section 1 .
+Section 1 gave the Minimum notice period from you or NPCT as 12 weeks.
+Very shortly after the transfer, the Trust identified Mrs Haywoods post as redundant.
+As both parties knew, if her employment terminated by reason of redundancy on or after her 50th birthday on 20 July 2011, she would be entitled to claim a non actuarially reduced early retirement pension.
+If it terminated before that date, she would not.
+At a meeting to discuss her possible redundancy on 13 April 2011, Mrs Haywood informed the Trust that she had booked two weeks annual leave from Monday 18 April, was going to Egypt, and would be due back at work after the extended bank holiday weekend on 3 May 2011.
+The period of leave had been recorded on the Trusts records.
+Mrs Haywood asked that no decision be taken while she was away, but the Trust did not agree to that.
+On 20 April 2011, it issued written notice (in fact dated 21 April) of termination of her employment on the ground of redundancy.
+The Trust maintained that the letter was sent by three methods: by email to her husbands email address; by recorded delivery; and by ordinary first class post.
+However, the Trust sought (unsuccessfully) to recall the notice sent by email that same day.
+The trial judge was satisfied that only two notices had been sent by email and by recorded delivery (para 37(xii)).
+The email is not relied on by the Trust.
+Hence the letter which is relevant in this appeal is the one sent by recorded delivery.
+The crucial date was 27 April.
+Notice given on or after that date would expire on or after Mrs Haywoods 50th birthday.
+Notice given before that date would expire earlier.
+Mrs Haywood and her husband were away on holiday in Egypt from 19 to 27 April.
+They asked Mr Haywoods father, Mr Crabtree, to look after the house while they were away.
+He went daily to check that it was secure, remove mail from the doormat to the hall table and water the plants.
+A recorded delivery slip was left at their home on 21 April.
+On 26 April, Mr Crabtree found the recorded delivery slip, collected the letter from the local sorting office and left it at their home.
+Mr and Mrs Haywood arrived back there in the early hours of 27 April.
+Mrs Haywood opened and read the letter later that morning.
+Mrs Haywood made various Employment Tribunal claims in respect of her dismissal, which were not pursued.
+In these High Court proceedings, she claims that her 12 weeks notice did not begin until 27 April, when she received and read the letter, and therefore expired on 20 July, her 50th birthday, and accordingly that she is entitled to the early retirement pension.
+The claim was tried by His Honour Judge Raeside QC, sitting as a High Court Judge, in January 2014.
+He handed down a partial judgment on 27 May 2015: Case No 3BM30070.
+He held that it was necessary to imply a term that Mrs Haywood had a right actually to be informed, either orally or in writing, of her dismissal; she had to have a reasonable opportunity actually to look at the letter (paras 70, 71).
+He declared that Mrs Haywood was still employed by the Trust on 20 July 2011 and made various orders relating to the payment of her pension, both in the future and in arrears.
+But he granted a stay of those provisions pending a possible appeal and they have remained stayed ever since.
+The Trusts appeal to the Court of Appeal was dismissed by a majority: [2017] EWCA Civ 153.
+Proudman J held that the contents of the letter had to be communicated to the employee (para 57).
+Arden LJ held that the letter had to be received (para 130(2)); where it has been delivered to the partys address, there is a rebuttable presumption that it has been received (para 136); but that presumption had been rebutted by the judges finding that Mrs Haywood did not receive the letter until 27 April there was no need for her to have read the letter but she had to have received it (para 149).
+Lewison LJ dissented: notice is validly given under the contract when a letter containing the notice actually arrives at the correct destination, whether the recipient is there to open it or not (para 124).
+The agency point
+Before turning to the major issue of principle, which divided the Court of Appeal and also divides this Court, it is convenient to mention a point which was raised for the first time in the Court of Appeal by Lewison LJ.
+This is that Mr Crabtree, By taking it upon himself to collect and sign for the letter, must, in my judgment, be taken to have been acting as Mrs Haywoods agent (para 84).
+Arden LJ disagreed: There was no argument on this at the hearing or finding by the judge. [Mr Crabtrees] witness statement is consistent with his having acted on his own initiative (para 134).
+In their Grounds of Appeal, the Trust argued that Lewison LJ was right to hold that Mr Crabtree was acting as Mrs Haywoods agent and that delivery to him was therefore delivery to her.
+It is fair to say that very little time was devoted to this ground in the hearing before us.
+On its own, it does not raise a point of law of general public importance for which permission to appeal would be granted and arguably would require a finding of fact by the trial judge.
+At all events, in my judgment (with which I understand that all my fellow Justices hearing this case agree), on the evidence that was available to the court, Arden LJ was correct to hold that, in acting as he did, Mr Crabtree was not acting at Mrs Haywoods agent for the receipt of the letter.
+The issue of law
+The Trust argues that there is a common law rule, principally derived from some historic landlord and tenant cases, which supports its case that notice is given when the letter is delivered to its address.
+Mrs Haywood argues that the common law rule is not as clear cut as the Trust says that it is.
+Furthermore, there is a consistent line of Employment Appeal Tribunal (EAT) authority which supports her case that, in the absence of an express contractual provision to the contrary, there is an implied term that a notice served by an employer upon an employee takes effect only when it has actually been received by the employee and the employee has either read or had a reasonable opportunity of reading it.
+It is convenient, therefore, to look first at the non employment cases principally relied upon by the Trust and then at the employment cases principally relied upon by Mrs Haywood.
+The non employment cases
+The Trust relies on a line of cases dating back to the 18th century, almost all in the landlord and tenant context, holding that delivery of a notice to the tenants (or landlords) address is sufficient, even though it has not actually been read by the addressee.
+Some of these are in the context of an express statutory or contractual provision that service may be effected by post.
+In Jones d Griffiths v Marsh (1791) 4 TR 464; 100 ER 1121, it was held that delivering a notice to quit to the tenants maidservant at his house (which was not the demised premises) was sufficient.
+Personal service was not necessary in every case, although it was in some.
+Kenyon CJ remarked that in every case of the service of a notice, leaving it at the dwelling house of the party has always been deemed sufficient.
+Doe d Neville v Dunbar (1826) Moot M 9; 173 ER 1062 was to the same effect.
+Abbott CJ had no doubt as to the sufficiency of a notice served at the tenants home, even though the tenant was away: were it otherwise, a landlord would have no means of determining a tenancy, if his tenant happened to be absent from his house at the time when it was necessary to serve the notice.
+In Papillon v Brunton (1860) 5 H & N 518; 157 ER 1285, a tenant served notice to quit by posting it to his landlords agent.
+The jury found that it arrived that same day, after the agent had left, but there ought to have been someone there to receive it.
+The judges agreed that this was good service.
+In Tanham v Nicholson (1872) LR 5 HL 561, delivery to the tenants adult children at the property was held sufficient.
+But Lord Westbury pointed out that, in Jones, Lord Kenyon had limited his remarks to notices affecting property, such as notices to quit, and not those notices which are intended to bring an individual into personal contempt (p 573).
+As Lady Blacks much fuller treatment demonstrates, each of these cases could be seen as service upon an agent authorised to accept it.
+The other landlord and tenant cases relied on by the Trust are less helpful, because they involved express statutory and/or contractual terms.
+Stidolph v American School in London Educational Trust Ltd [1969] 2 P & CR 802 concerned the requirements for terminating a lease of business premises under the Landlord and Tenant Act 1954 and the Landlord and Tenant (Notices) Regulations 1954.
+The Act expressly provided that notice could be served by registered post in a letter addressed to the tenants last known place of abode.
+The landlords solicitors had sent, by registered post, an unsigned notice to quit accompanied by a letter signed by them.
+This was held sufficient.
+But Lord Denning observed that I do not think that a tenant can avoid the effects of a notice like this which is properly sent by registered post to him by saying that he did not take it out of the envelope or read it (p 805).
+And Edmund Davies LJ said this (pp 805 806): Based upon considerations mainly of business efficacy, there is a long standing presumption in our law that a letter, duly addressed, pre paid and posted, which is not returned to the sender has in fact been received by the addressee unless he can establish the contrary.
+The usefulness of a presumption of this kind would be destroyed if the addressee could nevertheless be heard to say: Although I received the postal packet quite safely, I did not read the contents, or I did not examine the postal packet to see that I had extracted all that it contained.
+Both observations are as consistent with Mrs Haywoods case as they are with the Trusts.
+In Stephenson & Son v Orca Properties Ltd [1989] 2 EGLR 129, the deadline for giving notice of a rent review to the tenant was 30 June.
+The notice was posted recorded delivery on 28 June, but it was not received and signed for until 1 July.
+The issue was whether it was deemed, under section 196(4) of the Law of Property Act 1925 (see para 34(2) below), to have been delivered in the ordinary course of post on 29 June.
+Scott J held that that would have been the case with an ordinary registered letter, but a recorded delivery letter was not received until signed for.
+So the notice was out of time.
+Wilderbrook Ltd v Olowu [2005] EWCA Civ 1361; [2006] 2 P & CR 4, also concerned a rent review notice sent by recorded delivery, received and signed for at the demised premises.
+The lease incorporated the statutory presumption as to service in section 196(4) of the Law of Property Act 1925 (see para 34(2) below).
+The Court of Appeal rejected the argument that it was not received in accordance with the contract until the tenant had actually seen it.
+Carnwath LJ quoted Lord Salmon in Sun Alliance & London Assurance Co Ltd v Hayman [1975] 1 WLR 177, at p 185: Statutes and contracts often contain a provision [that] notice may be served upon a person by leaving it at his last known place of abode or by sending it to him there through the post.
+The effect of such a provision is that if notice is served by any of the prescribed methods of service it is, by law, treated as having been given and received.
+Once again, this does not help us to determine what term as to service is to be implied into an employment contract, to which section 196(4) does not apply.
+With the exception of the employment case of London Transport Executive v Clarke (dealt with below at para 29), the only case outside landlord and tenant law relied on by the Trust is The Brimnes, Tenax Steamship Co Ltd v The Brimnes (Owners) [1975] QB 929, CA.
+One issue was when the owners notice withdrawing the vessel from hire, sent by telex, had been received by the charterers.
+It was held effective when it arrived at the charterers machine during business hours and not when it was actually read.
+Megaw LJ said this, at pp 966 967: With all respect, I think that the principle which is relevant is this: if a notice arrives at the address of the person to be notified at such a time and by such a means of communication that it would in the normal course of business come to the attention of that person on its arrival, that person cannot rely on some failure himself or his servants to act in a normal business like manner in respect of taking cognisance of the communication so as to postpone the effective time of the notice until some later time when it in fact came to his attention.
+Cairns LJ made this general observation, at pp 969 970: In my opinion, the general rule is that notice must reach the mind of the charterer or of some responsible person on his behalf.
+There must clearly be exceptions to this rule: for example, if the charterer or his agent deliberately keeps out of the way, or refrains from opening a letter with a view to avoiding the receipt of notice.
+How much further than this do exceptions go? I feel little doubt that if an office were closed all day on an ordinary working day, though without any thought of a notice of withdrawal arriving, such a notice delivered by post on that day must be regarded as then received.
+These statements can scarcely be seen as a ringing endorsement of the Trusts case, as their starting point is receipt.
+Notices delivered during normal working hours to an office which can reasonably be expected to be staffed to receive and deal with them properly may be in a different category from notices delivered to a private home.
+The employment cases
+Mrs Haywood relies upon a line of EAT cases dating back to 1980, holding in a variety of contexts which do not all depend upon the construction of the employment protection legislation, that written notice does not take effect until the employee has read it or had a reasonable opportunity of doing so.
+In Brown v Southall & Knight [1980] ICR 617, the issue was whether the employee had the 26 weeks continuous employment, ending with the effective date of termination, then required to bring an unfair dismissal claim.
+The letter summarily dismissing him was sent by post after he had left to go on holiday.
+His period of employment was less than 26 weeks on the date that it would have been delivered to his home but more than that on the date when he arrived back and read the letter.
+The EAT (Slynn J presiding) held that he had the necessary 26 weeks employment, for the reasons given at p 628: It seems to us that it is not enough to establish that the employer has decided to dismiss a man or, indeed, has posted a letter saying so.
+That does not itself, in our view, terminate the contract.
+Nor, in our view, is it right, in looking at the matters as the industrial tribunal did in considering the reasonable steps taken by the employer, to look solely at what the employer does and to ask whether that constitutes the taking of reasonable steps.
+In our judgment, the employer who sends a letter terminating a mans employment summarily must show that the employee has actually read the letter or, at any rate, had a reasonable opportunity of reading it.
+If the addressee of the letter, the employee, deliberately does not open it or goes away to avoid reading it he might well be debarred from saying that notice of his dismissal had not been given to him.
+That, however, did not happen in this case.
+The same approach was adopted by the EAT (Morison J presiding) in McMaster v Manchester Airport plc [1998] IRLR 112, another case of a dismissal letter arriving while the employee was away from home.
+This too was a case about the effective date of termination, but for the purpose of the time limit for making a complaint of unfair dismissal.
+It was common ground that any dismissal had to be communicated, whether it was summary or on notice.
+The tribunal commented, at para 9: It seems to us that, as a matter of principle, unless compelled to take a different view, the doctrine of constructive or presumed knowledge has no place in the private rights of parties to contracts of employment, and questions as to whether a dismissal has been communicated or not, save in an evidential sense only.
+When the Gisda Cyf case, referred to in para 2 above, which concerned a summary dismissal by letter, came before Bean J sitting alone in the EAT ((UKEAT 0173/08, unreported), he agreed with all that Morison J had said it was laying down a clear and workable principle.
+He drew a distinction between delivery to a large commercial concern during business hours and delivery to a persons home.
+Edwards v Surrey Police [1999] IRLR 456 also concerned the effective date of termination for the purpose of the time limit for bringing an unfair dismissal complaint.
+But the issue was whether the employees resignation took effect when the employee decided that she could not continue working for the employer or when that decision was communicated to the employer.
+The EAT (Morison J presiding) held that before a contract of employment can be terminated there must have been communication by words, or by conduct, such as to inform the other party to the contract that it is indeed at an end (para 14).
+In George v Luton Borough Council (EAT 0311/03, unreported) the EAT (Judge Serota QC presiding), agreed that the acceptance of the employers repudiatory breach had to be communicated, but held that there might be a distinction between cases of an employee giving notice and cases where an employer is seeking to terminate the employment, in which case the employee must know and actually have the termination communicated to him.
+Receipt of the employees letter accepting the breach by the Council was sufficient (para 14).
+To the same effect was Potter v RJ Temple plc (2003) UKEAT/0478/03/LA), where the EAT (Judge Richardson presiding) held that an employees notice was effective when received by his employers even if it had not been read.
+Brown v Southall & Knight was followed in an entirely different context in Hindle Gears Ltd v McGinty [1985] ICR 111, and this time to the employees disadvantage.
+During a strike, employers were exempt from unfair dismissal claims only if they dismissed an entire striking workforce.
+They were not entitled to dismiss only those strikers who were unwanted elements.
+So if there were striking employees who were not dismissed, or who were re engaged within three months, those who were dismissed could bring claims.
+The employer sent out letters dismissing all the strikers, but two of them had left home to report for work early in the morning of the day after the letters were posted, before the letters were actually received.
+The Industrial Tribunal held that the two employees had been dismissed but then re engaged that morning, with the result that the 39 striking employees could bring complaints of unfair dismissal.
+The EAT (Waite J presiding) held that the two employees had not been dismissed before they returned to work; therefore they had not been re engaged that morning; and they were not part of the striking workforce on the relevant date.
+This was because, at p 117: Communication of the decision in terms which either bring it expressly to the attention of the employee or give him at least a reasonable opportunity of learning of it is in our view essential.
+Most recently, in Sandle v Adecco UK Ltd [2016] IRLR 941, the EAT (Judge Eady QC presiding) upheld the employment tribunals decision that an agency worker had not been dismissed because, although the firm to which the agency had assigned her had terminated the assignment, the agency had done nothing to communicate her dismissal: dismissal does have to be communicated.
+Communication might be by conduct and the conduct in question might be capable of being construed as a direct dismissal or as a repudiatory breach, but it has to be something of which the employee was aware. (para 41)
+Two other employment cases were relied upon by the Trust.
+In London Transport Executive v Clarke [1981] ICR 355, the employee had taken unauthorised leave to go to Jamaica.
+After sending two letters to his home address asking for an explanation and giving an ultimatum, the employers wrote on 26 March saying that his name had been permanently removed from their books on that day.
+When he returned they refused to reinstate him.
+The majority of the Court of Appeal held that a contract of employment was not terminated until the employers had accepted the employees repudiatory breach, which they did when he was dismissed on 26 March.
+The issue was whether his dismissal was unfair.
+There was no issue as to the precise timing, or as to when the employee became aware of the contents of the letter.
+The most that can be said on behalf of the Trust is that the majority assumed that posting the letter was sufficient.
+The other case is the decision of the Court of Appeal in the Gisda Cyf case: [2009] EWCA Civ 648; [2009] ICR 1408.
+The majority, Mummery LJ with whom Sir Paul Kennedy agreed, approved the decisions in Brown v Southall & Knight and McMaster v Manchester Airport plc, but expressly on the basis that they were construing the statutory definition of the effective date of termination in section 97(1) the Employment Rights Act 1996 or its predecessor, for the purpose of unfair dismissal claims, rather than applying the law of contract; it did not follow that the correct construction of the statute was controlled by contractual considerations: para 33.
+Lloyd LJ dissented: in his view resort should first be had to the general law on contracts of employment.
+The EAT cases cited above had distinguished between those where the employee had given notice to the employer and those where the employer had given notice to the employee.
+In the first category were George v Luton Borough Council and Potter v RJ Temple plc (see para 26 above), where it was held that an employees notice was effective when received by his employers even if it had not been read.
+In the second category were all those cases where an employers notice had been held only to take effect when the employee had received and read, or had a reasonable opportunity to read, them.
+He took the view that the latter category of cases was wrongly decided and the same rule should apply to both.
+In the Supreme Court, the approach of the majority was upheld.
+The Court emphasised that it was interpreting a statutory provision in legislation designed to protect employees rights, so that the general law of contract should not even provide a preliminary guide, let alone be determinative (para 37).
+However, Lord Kerr (giving the judgment of the Court) was careful to say that the judgment should not be seen as an endorsement of the employers argument as to the effect of common law contractual principles (para 38).
+The case was an unusual one, in that the employee was not represented before the Supreme Court and so there had been no argument to the contrary.
+For that reason, although this case is determinative of the meaning of the effective date of termination in section 97(1) of the Employment Rights Act 1996, it is of no assistance in the determination of the issue in this case.
+The last employment case to mention is Geys v Socit Gnrale, London Branch (see para 3 above).
+The Bank purported to exercise its contractual right to terminate the employees employment by making a payment in lieu of notice.
+The severance payment due depended on the date of termination: was it when the Bank repudiated the contract of employment, or when it made a payment in lieu of notice into the employees bank account, or when, in accordance with an express term in the contract, the employee was deemed to have received the Banks letter telling him that it had exercised its right to terminate with immediate effect and made a payment in lieu of notice? The Supreme Court held that the repudiation was not effective unless and until accepted by the employee (which it was not); that the mere payment of money into a bank account was not sufficient notification to the employee that he was being dismissed with immediate effect; so that the date of termination was the date on which he was deemed to have received the letter.
+Apart from the repudiation point, most of the case depended upon the express terms of the contract, which included a term as to when a written notice sent by post was deemed to have been received.
+For present purposes the case is relevant only insofar as it stresses the need for notification of dismissal (or resignation) in clear and unambiguous terms, so that both parties know where they stand whether or not the employee is still employed and when he ceased to be employed (paras 57 58).
+Baroness Hale of Richmond (with whom Lord Hope of Craighead, Lord Wilson and Lord Carnwath agreed) cited with approval, at para 56, the following passage from Crossley v Faithful & Gould Holdings Ltd [2004] ICR 1615, per Dyson LJ, at para 36: It seems to me that, rather than focus on the elusive concept of necessity, it is better to recognise that, to some extent at least, the existence and scope of standardised implied terms raise questions of reasonableness, fairness and the balancing of competing policy considerations.
+Policy
+Both parties have placed great weight on what they see as the policy considerations favouring their solution.
+Mr Cavanagh QC, for the Trust, points out that, as there was no express term stating how notice was to be given and when it was to be taken to have effect, some term has to be implied into this contract.
+That being so, as stated in Crossley, policy questions are relevant.
+There should be no special rule for employment cases.
+There should be as much certainty and clarity as possible.
+The Trusts approach is more certain than the employees.
+Under the employees approach, it would not be possible for a letter giving notice to state with certainty the date on which the employment would end.
+It is also fairer to give the benefit of the doubt to the sender of the letter, because there will usually be more objective evidence of when it was sent.
+If there are several dismissals, all will take effect on the same day, and not on different days depending on when the letter was received.
+The employees approach does not necessarily work for the benefit of employees, who might be keen for the employment to end.
+There must be the same rule for employers and employees.
+He also argues that the Trusts approach delivery to the home address is consistent with or more favourable than many statutory provisions about notice.
+He cites, in ascending order of severity, the following examples: (1) By the Interpretation Act 1978, section 7 (replacing a provision to like effect in the Interpretation Act 1870), service of a document by post, where authorised or required, is deemed to be effected by properly addressing, pre paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
+However, in Freetown Ltd v Assethold Ltd [2012] EWCA Civ 1657; [2013] 1 WLR 701, at para 37, Rix LJ pointed out that this changed the common law, which required receipt; it introduced a rebuttable presumption; and required the sender to prove that the letter had been properly addressed, prepaid and posted. (2) By the Law of Property Act 1925, section 196(4), notices required to be served on a lessee or mortgagor are sufficiently served if sent by post in a registered letter addressed to the person to be served by name, at his place of abode or business, and the letter is not returned undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered. (3) By the Misuse of Drugs Act 1971, section 29(4) certain notices sent by registered post or recorded delivery shall be deemed to have been effected at the time when the letter containing it would be delivered in the ordinary course of post and section 7 of the 1978 Act is disapplied. (4) By the Public Health Act 1875, section 267, notices and other documents served by post shall be deemed to have been served at the time when the letter containing the same would be delivered in the ordinary course of post, and in proving such service it shall be sufficient to prove that the notice order or other document was properly addressed and put into the post.
+However, as Mr Glyn QC for Mrs Haywood points out, it does not follow that any of these differing statutory provisions reflects the common law as to the term to be implied into an employment contract.
+Their purpose was to lay down a rule which might well be different from what would otherwise be the common law position.
+He also cites the judgment of the Supreme Court in Gisda Cyf, at para 43: There is no reason to suppose that the rule in its present form will provoke uncertainty as to its application nor is there evidence that this has been the position hitherto.
+The inquiry as to whether an employee read a letter of dismissal within the three months prior to making the complaint or as to the reasons for failing to do so should in most cases be capable of being contained within a short compass.
+It should not, as a matter of generality, occupy a significantly greater time than that required to investigate the time of posting a letter and when it was delivered.
+Furthermore, if an employer wants greater certainty, he can either make express provision in the contract, or tell the employer face to face, handing over a letter at the same time if the contract stipulates notice in writing.
+Large numbers of employees are not sacked on a whim.
+The employer knows when employees are going on leave and can make arrangements to ensure that they are notified beforehand.
+All the notices can be stated to expire on the same specified date.
+There is no prohibition on giving more than the prescribed minimum period of notice.
+Nor is it usually necessary to give a prescribed period of notice before a particular date, as it is with notices to quit.
+The rule established in the EAT from 1980 onwards has survived the replacement, by the Employment Rights Act 1996, of the legislation which applied in Brown and there have been several other Parliamentary opportunities to correct it should it be thought to have caused significant difficulty.
+It has not been confined to the interpretation of the effective date of termination for the purpose of Part X of the 1996 Act and has been applied in several different contexts.
+It was only in Gisda Cyf that the possibility was raised that the common law and statutory rules might be different.
+But it makes obvious sense for the same rule to apply to all notices given by employers to employees.
+Conclusion
+reasons: In my view the approach consistently taken by the EAT is correct, for several (1) The above survey of non employment cases does not suggest that the common law rule was as clear and universal as the Trust suggests.
+Receipt in some form or other was always required, and arguably by a person authorised to receive it.
+In all the cases there was, or should have been, someone at the address to receive the letter and pass it on to the addressee.
+Even when statute intervened in the shape of the Interpretation Act, the presumption of receipt at the address was rebuttable.
+There are also passages to the effect that the notice must have been communicated or come to the mind of the addressee, albeit with some exceptions. (2) The EAT has been consistent in its approach to notices given to employers since 1980.
+The EAT is an expert tribunal which must be taken to be familiar with employment practices, as well as the general merits in employment cases. (3) This particular contract was, of course, concluded when those cases were thought to represent the general law. (4) There is no reason to believe that that approach has caused any real difficulties in practice.
+For example, if large numbers of employees are being dismissed at the same time, the employer can arrange matters so that all the notices expire on the same day, even if they are received on different days. (5) If an employer does consider that this implied term would cause problems, it is always open to the employer to make express provision in the contract, both as to the methods of giving notice and as to the time at which such notices are (rebuttably or irrebuttably) deemed to be received.
+Statute lays down the minimum periods which must be given but not the methods. (6) For all the reasons given in Geys, it is very important for both the employer and the employee to know whether or not the employee still has a job.
+A great many things may depend upon it.
+This means that the employee needs to know whether and when he has been summarily dismissed or dismissed with immediate effect by a payment in lieu of notice (as was the case in Geys).
+This consideration is not quite as powerful in dismissals on notice, but the rule should be the same for both.
+I would therefore dismiss this appeal.
+It was only on 27 April 2011 that the letter came to the attention of Mrs Haywood and she had a reasonable opportunity of reading it.
+LADY BLACK:
+The foundation of the Trusts argument is that there is a common law rule that written notice of termination of a contract is given when the notice document is delivered to the recipients address, and that there is no need for the recipient to have sight of the document or the envelope containing it, or even to be present at the time.
+Mrs Haywood disputes that such a common law rule exists.
+In order to decide who is right, it is necessary to look in some detail at a line of old authorities on the giving of notice.
+Lord Briggs, like Lord Justice Lewison in the Court of Appeal, concludes from it that there has been, for over two centuries, a term generally implied by law into relationship contracts terminable on notice, that written notice is given when the relevant document is duly delivered by hand or post to the address of the recipient, irrespective of whether/when the recipient actually gets the notice.
+Lady Hale does not consider that the old authorities establish this proposition.
+I agree with Lady Hales judgment, and, in the light of the disagreement between her and Lord Briggs, merely wish to set out here, in a little more detail, the reasons why, in my view, the old line of authorities are not to the effect that the Trust suggests.
+I am indebted to Lady Hale and Lord Briggs for having introduced and analysed the authorities, albeit that their analyses differ, as I am able to build on what they have already said (see paras 13 and 14 of Lady Hales judgment, and paras 84 et seq of Lord Briggs judgment).
+In considering the authorities, I have found it helpful to keep in mind that there are different sorts of service, increasingly personal in nature.
+Putting a notice document into a post box might be said to be at one end of the spectrum.
+This is the point at which, where the postal rule applies, an acceptance of a contractual offer would take effect, for example.
+However, no one has contended in this case that notice could have been given at such an early stage.
+At the other end of the spectrum is the communication of the contents of the document to the mind of the recipient.
+In between, various possibilities exist, from which I would pick out service of the notice on an agent of the intended recipient who is authorised to receive such communications, and personal service.
+When I speak of personal service in this context, I mean, following what it seems to me is the practice of the older authorities, ensuring that the notice actually reaches the recipients hands.
+It is also helpful to keep in mind when approaching the authorities that presumptions feature prominently in them and that presumptions come in various guises too, the most obvious distinction being between the rebuttable presumption and the irrebuttable presumption.
+The starting point for an examination of the old authorities is Jones d Griffiths v Marsh (1791) 4 TR 464.
+This is the case in which a notice to quit was served on the tenants maidservant at the tenants house, the contents being explained to her at the time, but (as the report puts it) there was no evidence that it ever came to the defendants hands, except as above.
+The tenant argued that this was not sufficient for a notice to determine an interest in land, especially as the service had been at a house which was not the demised premises.
+The summary of the decision of Lord Kenyon CJ, and Buller J reads: Where the tenant of an estate holden by the year has a dwelling house at another place, the delivery of a notice to quit to his servant at the dwelling house is strong presumptive evidence that the master received the notice.
+In deciding that the tenant had been served with due notice to quit, Lord Kenyon and Buller J expressed their decisions in rather different ways.
+The reports of their judgments are so short that it is worth setting them out in full.
+Lord Kenyon said at p 465: This is different from the cases of personal process: but even in the case alluded to of service on the wife [of a declaration in ejectment], I do not know that it is confined to a service on her on the premises; I believe that if it be served on her in the house, it is sufficient.
+But in every case of the service of a notice, leaving it at the dwelling house of the party has always been deemed sufficient.
+So wherever the Legislature has enacted, that before a party shall be affected by any act, notice shall be given to him, and leaving that notice at his house is sufficient.
+So also in the case of an attorneys bill, or notice of a declaration being filed: and indeed in some instances of process, leaving it at the house is sufficient; as a subpoena out of the Court of Chancery, or a quo minus out of the Exchequer.
+In general, the difference is between process to bring the party into contempt, and a notice of this kind; the former of which only need be personally served on him.
+Buller J said at pp 465 466: Ex concessis personal service is not necessary in all cases.
+Then what were the facts of this case? It was proved that this notice was delivered to the tenants servant at the dwelling house of the tenant, and its contents were explained at the time; and that servant who was in the power of the defendant was not called to prove that she did not communicate the notice to her master; this was ample evidence, on which the jury would have presumed that the notice reached the tenant.
+Lord Briggs takes this case as a clear statement of already settled law to the effect that a notice left at the intended recipients dwelling house is valid from the point of delivery.
+He would reject the argument that this was a decision about service on the maidservant as the tenants agent, taking the view that the judgments turn on the leaving of the document at the house rather than it being given to anyone there.
+I do not share his confidence about this, but before explaining why, I will look at the whole line of authority up to and including the important case of Tanham v Nicholson (1872) LR 5 HL 561, because later cases shed light on the issue, in my view.
+Lady Hale says of the main authorities in this line that they could be seen as cases concerning service upon an agent authorised to accept it (para 14).
+I agree that that is a fair reading of them, although all is not perfectly clear and uniform, not least because the old reports are sparing in detail, and not all the cases address specifically the issues that are of interest to us, with our 21st century perspective.
+Although not cited to us, the next relevant case chronologically seems to me to be Doe d Buross v Lucas (1804) 5 Esp 153.
+The action was one of ejectment, to recover possession of premises.
+The brevity of the report makes it difficult to be sure of the precise facts.
+The tenant had died, leaving his widow as his executrix.
+The notice to quit was given by leaving it at the house where he had lived during his lifetime, but there was no evidence of it having come into his widows hands.
+It was argued that this was not a legal notice to quit, that service at the house where the tenant lived was never sufficient, and that there had to be delivery to the tenant, his wife or a servant, with (in the case of a servant) evidence that the notice came into the tenants hands.
+The plaintiff asserted, relying on Jones d Griffiths v Marsh, that the mere service of the notice at the house was sufficient.
+Rejecting the plaintiffs argument, the Lord Chief Justice, Lord Ellenborough, said: that case was different from this; in that case, the notice was delivered at the tenants dwelling house, and explained to the servant.
+The objection was then taken, that the servant was not called, who might have accounted for the notice, and stated whether it had been delivered or not; and that not being called, it was strong presumptive evidence, that her master had received the notice, and should be left to the jury: but here there was no such evidence offered.
+The tenant might be turned out of possession by a trick.
+From this, it seems that Lord Ellenborough considered that mere delivery at the house was not enough, and that he saw Jones v Marsh as a case of notice received by the tenant himself, because there had been no evidence to rebut the presumption that arose from the delivery of the notice to his servant.
+Next in time is Walter v Haynes (1824) Ry & Mood 149 which is one of the few examples we were given from outside the field of residential property.
+An action of assumpsit was brought upon a bill of exchange.
+A notice of dishonour had been posted in a letter addressed to Mr Haynes, Bristol.
+This was held not to be sufficient proof of notice.
+Setting out why, Lord Abbott CJ spoke in terms which made it plain that what was required was that the letter did in fact come into the hands of the person for whom it was intended.
+Normally, the post was sufficiently reliable for posting a letter to be tantamount to delivery into that persons hands, but the address on this communication was not sufficiently precise for that to be presumed.
+Lord Abbott said at pp 149 150: It is, therefore, always necessary, in the latter case [of a letter addressed generally to AB at a large town], to give some further evidence to shew that the letter did in fact come to the hands of the person for whom it was intended.
+I come then to Doe d Neville v Dunbar (1826) M & M 9.
+This was another notice to quit case.
+Two copies of the notice to quit were served at the defendants house, one on the servant and the other on a lady at the house.
+The defendant complained that this was not good enough.
+His argument can be gleaned from the following summary in the report at p 11: It was attempted to shew that both the lady and the servant on whom notices were served were dead; and it was argued that in that case, as the defendant would be unable to call them to prove that they did not communicate the notice to him by the [relevant date], according to the course suggested by Buller J in Jones d Griffiths v Marsh, 4 TR 464, and as the sufficiency of the notice was treated, both in that case and in Doe d Buross v Lucas, 5 Esp 153, and in Doe d Lord Bradford v Watkins, 7 East, 553, as depending on the presumption that it came to the tenants hands, there would be no sufficient evidence that it did so, to entitle the plaintiff to a verdict.
+An interesting feature of this passage is the assertion that the sufficiency of the notice in Jones d Griffiths v Marsh depended on the presumption that it came to the tenants hands.
+This is in line with Lord Ellenboroughs view of it in Buross v Lucas and, to my mind, might be taken to indicate that Jones d Griffiths v Marsh was not treated, in the 30 years or so after it was decided, to be clear and established authority that mere delivery at the address constituted notice.
+Lord Abbott CJ, had no doubt, however, that the notice in Neville v Dunbar was sufficient.
+The brevity of the report makes it difficult to gain a full understanding of the reasoning.
+It could be read as endorsing mere delivery to the house as sufficient (as Lord Briggs reads it), but the decision might equally have been based upon the proposition that service on the servant was sufficient whether or not the notice reached the master, or upon the proposition that service on the servant raised a presumption (not rebutted on the evidence) that the master had received the notice.
+In order to make sense of what Lord Abbott said, it is necessary to note that, immediately after the passage I have just quoted from the argument, there is the statement: The proof however failed as to the servant.
+It seems, therefore, that it was not established that the servant was in fact dead, from which it followed that the defendant could have called him or her to give evidence that he or she had not communicated the notice to him, but had not done so.
+In that context, Lord Abbott said: I have no doubt that the service of the notice was sufficient.
+The question does not arise here, for the servant might be called: but I have no doubt of the absolute sufficiency of the notice; were it to be held otherwise, a landlord would have no means of determining a tenancy, if his tenant happened to be absent from his house at the time when it was necessary to serve the notice.
+Doe d Lord Bradford v Watkins, the third of the three cases referred to in the argument in Neville v Dunbar, seems to have concerned a notice to quit served on one of two tenants holding under a joint demise of premises.
+It seems that it was left to the jury to determine whether the notice had reached the other defendant, but it is not easy to get a great deal of assistance from the report.
+Papillon v Brunton (1860) 5 H & N 518 is the next case requiring consideration.
+Lord Briggs takes the view that this makes it even clearer that the principle in play is not dependent upon personal delivery to an agent.
+It is the case in which a notice to quit was posted by the tenant to the landlords agents place of business, that is to say the landlords solicitors chambers.
+It should have arrived the same day, but the solicitor only found it when he went in the next day.
+It was held to be good notice on the day of posting.
+In attempting to arrive at a proper understanding of Papillon v Brunton, it must be noted that the trial judge had left it to the jury to say whether the letter arrived at the solicitors chambers on the day of posting or on the morning of the next day, and the jury found that it arrived on the day of posting after the solicitor left, and said that they thought he ought to have had somebody there to receive it.
+Pollock CBs judgment includes the following passage at p 521: we think that in the case of a notice to quit the putting it into the post office is sufficient, and that the party sending it is not responsible for its miscarriage.
+As this letter was posted in London between nine and ten oclock in the morning, the probability is that it arrived immediately after the agent left his chambers.
+Indeed it is possible that it may have arrived in the due course of post, but by some accident. was overlooked either not delivered by the servant to the clerk or in some way mislaid.
+Besides it did not appear that it was not delivered before seven oclock in the evening; and the jury considered that the agent ought to have had some one in his chambers at that time.
+A notice so sent must be considered as having reached the agent in due time, and the same consequences must result as if he had actually been there and received it.
+In my opinion the finding of the jury was right, and the notice was delivered at the agent's place of business in sufficient time to inform him, if he had been there, that the tenancy was to be determined at the time specified.
+For these reasons I think there ought to be no rule.
+Whilst this passage commences with a rather general observation, suggesting that mere posting of a notice is sufficient, that thought is not continued throughout the remainder of it.
+As the reasoning develops, it seems to turn, at least to some extent, not on the mere fact of the notice arriving at the agents chambers, but on the fact that it probably arrived on the day of posting and the solicitor ought to have had someone at the chambers to receive it.
+In highlighting the opportunity for the agent to have had the information had he arranged matters as he should have done, the approach bears some resemblance to the approach taken to termination of employment in the statutory context in cases such as Gisda Cyf, namely that the effective date of termination is when the employee reads the letter or has had a reasonable opportunity of reading it.
+Martin B simply concurred with Pollock CB, but Bramwell B and Wilde B provided short judgments agreeing there should be no rule.
+It is difficult to ascertain precisely what was of most importance to Bramwell B, although the jurys finding that the agent should have had someone at his chambers when the notice arrived had clearly impressed itself upon him.
+Wilde B said he took the same view as Bramwell B, and expressed himself in one further sentence, which might be supposed to encapsulate what had weighed particularly with him, and was as follows: The jury have found that the notice arrived at the agents place of business at a time when someone ought to have been there to receive it.
+So we come to the decision of the House of Lords in the Irish case of Tanham v Nicholson (1872), which I see as important.
+There is nothing to suggest that the fact that it was an Irish case makes any difference to the law applicable in relation to notices to quit, and the cases cited included familiar ones such as Jones d Griffiths v Marsh, Neville v Dunbar and Papillon v Brunton.
+The notice was delivered by hand to the tenants house where it was given to his daughter.
+It was sufficient to entitle the landlord to maintain ejectment against the father.
+Lord Briggs interprets the case as one about agency, rather than about service by post at the recipients home, but considers it to contain relevant dicta supporting the existence of a common law rule that delivery of an ordinary civil notice to the home of the intended recipient operates to transfer the risk to the recipient at that point, with the necessary corollary, I think, that it is at that point of physical delivery that the notice is given.
+I see the case rather differently.
+A little background is required as to the history of the case and the arguments being advanced by the parties.
+The trial judge had left to the jury the question, Whether, in fact, the notice to quit ever reached [the tenant], or became known to him? The jury found it did not.
+The judge considered that there had still been sufficient service in law and directed that a verdict be entered for the landlord.
+The matter proceeded through various levels of court to the House of Lords.
+The tenant conceded that he was living in the house where the notice was served and that the house was part of the demised premises, but he argued that to be sufficient, the notice had to be received by the tenant himself or by his duly appointed agent, which his daughter was not.
+The landlord argued that there was no rule that required personal service of a notice to sustain an ejectment and that service at the house was sufficient.
+In any event, said the landlord, the tenants daughter and sons were agents of the tenant and service on them was amply sufficient.
+Although all arriving at the same result, that there had been sufficient service of the notice, their Lordships differed in their reasoning.
+For the Lord Chancellor, Lord Hathersley, the solution lay in agency.
+He introduced the problem as follows (p 567): The sole question in the case is an extremely short one, and it is simply this, whether or not the delivery of a notice to quit on one who, undoubtedly, according to the evidence, was a servant of the tenant, at the house of the tenant, that house being on the demised property, is to be taken as a good and effectual service of that notice, so as to subject the person to whom it is addressed to the consequence of being ejected upon the termination of the notice.
+At p 568, in a passage which is worth quoting in full, he set out his view that if the servant is constituted an agent for receiving service of the document in question, service on the agent is service on the principal: I apprehend that the real point in the case, when you come to consider it, is this; not whether or not the person you have constituted your agent, by your line of conduct, to receive any document that may be left at your house, has performed that which is his or her duty, but whether or not you have constituted that person your agent.
+Because, if once you have constituted your servant your agent for the purpose of receiving such a notice, the question of fact as to whether that servant has performed his duty or not, is not one which is any longer in controversy.
+When once you constitute your servant your agent for that general purpose, service on that agent is service on you he represents you for that purpose he is your alter ego, and service upon him becomes an effective service upon yourself.
+So, said the Lord Chancellor, when the law has said in repeated cases that the effective service of notice on a servant at the dwelling house situated upon the demised property is a service upon the tenant, it has proceeded upon the basis that the law considers that servant to be an implied agent of the tenant for that particular purpose.
+The tenant could rebut that by showing that the agency was not correctly implied on the facts, but there could be no inquiry as to whether the agent did his duty by the tenant in dealing with the notice.
+Having brought [the notice] home to the agent of the person . you have brought it home to the tenant himself (p 571).
+By the conclusion of his speech, the Lord Chancellor had refined the case to one question, namely, whether this woman was an agent of the tenant or not.
+As she was an agent qualified to receive a notice, that was an end of it.
+Lord Westbury thought the law on the service of notices to quit to be in an unsatisfactory state.
+Lord Briggs has quoted (at para 91) what he said about the undue burden on a landlord deprived of the benefit of due service by things beyond his control.
+Lord Westbury noted the suggestion, which he said was to be found in the judgments given by some other Judges, that receipt of the notice by the tenants servant at his dwelling house was not absolutely sufficient, but only prima facie evidence of delivery to the master, rebuttable by evidence proving that the notice never reached him.
+He contrasted this with Jones d Griffiths v Marsh, where he said that Lord Kenyon CJ had laid down that in every case the service of a notice to quit by leaving it at the dwelling house of the tenant is sufficient, and with what Lord Abbott CJ had said (possibly in Neville v Dunbar, although Lord Westbury does not specify).
+Although it is possible to interpret Lord Westburys apparently approving reference to Lord Kenyon in Jones d Griffiths v Marsh as endorsing a principle that mere delivery at the tenants house was sufficient, I do not think that that interpretation withstands a reading of Lord Westburys speech as a whole.
+It will be recalled that in Jones d Griffiths v Marsh, the notice had not just been left at the premises, but had been served on the tenants maidservant, and this would have been in Lord Westburys mind.
+Apart from anything else, the employment of a domestic servant was commonplace in those days.
+Furthermore, it is noteworthy that Lord Westburys examples of the things that might unfairly deprive the landlord of the benefit of service commence with the wilful act of the servant or the servants incapacity, although they do of course include also any accident that might befall the notice after it has been received in the dwelling house of the tenant.
+When Lord Westbury spoke of the uncertainty and doubt that had come into the law (see the passage quoted at para 93 of Lord Briggs judgment), I do not think that he was complaining that there had been a principle (whether or not derived from Lord Kenyon) that mere physical delivery to the tenants address was sufficient, which had now been put in doubt.
+I think what he had in mind was what he saw as a clash between, on the one hand, Lord Kenyon and Lord Abbott, who considered service on the tenants servant was conclusively sufficient, and, on the other, some other Judges who held that it simply gave rise to a rebuttable presumption that the notice had been served.
+It is noteworthy that, having expressed the hope that the uncertainty and doubt could be cleared up, he did not then return to Jones d Griffiths v Marsh and declare the principle to be that mere delivery to the premises was enough, even though that would have been a simple way through on the facts of the case, the notice undoubtedly having arrived at the tenants address.
+Instead, he went on to consider what was to be made of receipt by a servant.
+Even then, he did not go so far as to say that delivery to the tenants servant would be conclusively sufficient.
+What he in fact went on to do, in the very next paragraph following his lament about the uncertainty, was to deal with the case on the assumption that delivery to the servant was only prima facie evidence of delivery to the master (the lower ground, see p 574).
+He found there to be no evidence to contradict this prima facie evidence and, indeed, all the evidence pointed to the father having knowledge of the notice.
+The jurys conclusion that the father did not know was so utterly unwarranted by the facts, in Lord Westburys view, that it ought not to have prevented judgment being entered for the landlord.
+Accordingly, he did not need to resolve the clash of authority between Lord Kenyon and some other Judges, if clash it was.
+Lord Westbury introduced his final paragraph with the view that the matter is left, by certain expressions used in former decisions, in a state of some embarrassment.
+Whilst he expressed the hope that the judgment in the case may tend to relieve cases of this kind in future, I do not think that his own speech provided any such relief, as he then summarised his conclusion in terms which left open whether or not delivery to the servant was conclusive or merely gave rise to a rebuttable presumption, saying: if it were open to contradiction, on the ground that it might be proved that the tenant had no knowledge of the notice, that proof has not been given, but the contrary conclusion has been in fact established. (Emphasis supplied)
+No relief came from Lord Colonsay either.
+His speech revolves around agency.
+He began it by observing (p 576) that, [i]t is held in law that notice given to the servant of the party residing in the house is a service of notice on the master.
+He then went on to consider whether evidence had been adduced to rebut that rule or presumption of law, if the question was in a condition in which it could be rebutted.
+He found no circumstances sufficient to rebut the legal inference that the person to whom the notice was given, standing to the party in the relation of servant, was not a legal agent to receive that notice (sic, but I think the not is an error).
+He too concluded that the judge was right to hold the notice was sufficient.
+Two features of Tanham v Nicholson strike me as particularly significant.
+First, none of their Lordships resolved the case by the simple route of holding that delivery of the document at the tenants address was sufficient notice, even though that seems to have been argued by the landlord.
+There was no dispute about the arrival of the notice at the premises, so that solution would have been open to them if delivery was all that was required and, if they had thought Jones d Griffiths v Marsh was properly to be interpreted in that way, they could have drawn support from what Lord Kenyon said there.
+But instead of taking that approach, each looked at the implications of delivering the notice to the daughter.
+The Lord Chancellor was satisfied that that was service on the tenant, because service on his agent was tantamount to service on him.
+Lord Westbury and Lord Colonsay were perhaps more generous to the tenant, allowing for the possibility that service on the servant gave rise only to a rebuttable presumption of service on the tenant.
+None of the speeches provides support for the proposition that agency is simply irrelevant in connection with a service of a notice.
+Secondly, it is clear from the speeches that the law on the service of notices to quit was thought to be in a rather unsatisfactory state, a state which gave rise to different reasoning from each of their Lordships.
+This is hardly a promising foundation for a submission that the common law has long been settled in relation to the requirements for service of a notice and requires only that it be duly delivered to the home of the intended recipient.
+I need only refer to one further Victorian case, and then only for completeness.
+This is the decision of the Court of Appeal in Hogg v Brooks (1885) 15 QBD 256.
+A lease of a shop contained a provision for the landlord to terminate the demise by delivering written notice to the tenant or his assigns.
+The lessee mortgaged the premises by way of underlease and disappeared.
+Written notice to determine the tenancy was sent to him at his last known address but returned without having reached him and he could not be found.
+Notice was also given to the mortgagee and the occupier of the premises.
+The Court of Appeal held that the landlord was not entitled to recover possession of the premises.
+The termination clause in the lease had to be construed according to the ordinary meaning of the English language.
+There were no assigns of the tenant, so notice could only be given by serving it on the tenant himself and it had not been served on him.
+I need not add to what Lady Hale has said about the other non employment cases upon which the Trust relies (commencing at para 15 of her judgment).
+I share her view of them and of what is said in the employment cases about the common law position.
+In short, I do not think that it has been shown that there is a clear and long standing common law rule that service of what Lord Briggs describes as an ordinary civil notice occurs when the notice is delivered to the recipients address.
+In so far as any clear principle emerges at all from the older cases, it seems to me, particularly in the light of Tanham v Nicholson, to revolve around delivery to the recipients agent, who might be the recipients household servant, professional agent, or (in certain circumstances, such as those in Tanham v Nicholson) family member.
+In each case, the agent appears to have been someone who, as part of their role, would be expected to take in communications of the type concerned for the intended recipient.
+For the purposes of service, the agent was (to quote the Lord Chancellor in Tanham v Nicholson, in the passage set out at para 64 above) the alter ego of the intended recipient so that, as he said, service on that agent is service on you.
+What the courts might have said had they been called upon to consider the same questions in the modern world in which there are no longer domestic servants, is unknown, and irrelevant.
+For present purposes, what matters is that the clear common law rule for which the Trust contends does not, in my view, emerge from the old cases.
+My unease about the suggested general common law rule is compounded by the concentration within a narrow field of the cases upon which the Trust relies.
+It may be that a great deal of research has been done into other areas with no relevant result, and we have been spared the trouble of trawling through the underlying material.
+However, I would have been interested to know, for example, what the position is, and was before the Partnership Act 1890, about the service of notices terminating a partnership, and to have seen some other examples drawn from contractual situations other than notices relating to property.
+As Lord Briggs says, relationship contracts come in many varieties.
+Absent a common law rule of the type for which the Trust contends, I see no reason for a term to that effect to be implied into an employment contract.
+Indeed, as Lady Hale explains, there is every reason why the term implied into an employment contract should reflect the position consistently taken by the EAT from 1980 onwards.
+LORD BRIGGS: (dissenting) (with whom Lord Lloyd Jones agrees)
+I would have allowed this appeal.
+The question is whether the term which must be implied into a contract of employment terminable on notice so as to identify, where necessary, the time of the giving of postal notice of termination, is that notice is given at the time when the document is duly delivered to the employees home address, or at some later time, such as the time when it actually comes to the attention of the employee, or when the employee has had a reasonable opportunity to read it.
+The question arises in this case in relation to termination on notice, by which I mean termination by a document which brings the relationship to an end at a specified date in the future, rather than immediately or, to use the jargon of the law of employment contracts, summarily.
+The essence of termination on notice is that there is a period, usually called the notice period, between the giving of the document, also confusingly called the notice, and its taking effect.
+The precise identification of the time when notice is given is not invariably, or even usually, necessary in order to determine when the employment actually terminated.
+This will usually be the time (almost always the date) specified in the document.
+But sometimes a notice is expressed to take effect a specified number of days or weeks after it is given, so that the date of its giving is a vital element in determining the date of termination.
+Sometimes notice is given for a specified date, but with only the contractual (or statutory) minimum notice period allowed before it takes effect, and issues then arise as to whether notice was given in sufficient time before it is expressed to take effect.
+The notice in the present case was an amalgam of both those types, because it was expressed both to give a specific period of notice (12 weeks), and to take effect upon a specified day in the future (15 July 2011).
+The question is not whether any term as to the time of the giving of notice should be implied, but rather what that term is.
+It is common ground that the term is one which the law implies into a whole class of contract, rather than one which is context specific.
+Nor is the question what that term should be.
+The task of this court is not to fashion, for the first time, a new implied term to fit a new situation, with a free rein to choose between available alternatives on modern policy grounds.
+Rather it is to examine the common law authorities to find out what that implied term already is.
+Contracts of employment determinable on notice have been around for hundreds of years, and there must be many millions extant in the common law world at this moment which must be taken to have had such an implied term embedded in them from the moment when they were made.
+The use of the post to give such notice has been an accepted method for well over a century, even if recent advances in information technology may well mean that it has only a few more years of useful life.
+It has not been suggested that any recent changes in the modes or efficiency of the postal service call for some revision of the implied term, by comparison with the term which the law has implied since Victorian times.
+Contracts of employment are only a sub species of a much larger group of what may be described as relationship contracts terminable on notice.
+They include contracts between landlord and tenant, licensor and licensee, contracts of partnership, service contracts not constituting employment, and many kinds of business contract such as commercial agencies, distributorship agreements and franchises.
+In most of them there will be provision for termination on notice, which permits notice by post to a partys home or business address, and the need to be able, when the occasion requires, to ascertain the time when notice is given calls for the law to imply a term for that purpose.
+Nor do the particular facts of this case call for an anxious re examination or development of the previous law, even though the financial consequences for the parties are, because of an unusual fact (the approach of the pension threshold on the employees 50th birthday), large indeed.
+The essential (and sufficient) facts which give rise to the question before the court are only that the letter containing the notice was only duly delivered on the last available day (from the employers perspective) but the employee was not at home until the following day.
+Absence of the recipient from home (or from the office) on the day of delivery is a common feature of the cases in which this question has already been addressed.
+In my judgment there has been for over two centuries a term generally implied by law into relationship contracts terminable on notice, namely that written notice of termination is given when the document containing it is duly delivered, by hand or by post, to the home (or, if appropriate, business) address of the intended recipient, rather than, if later, when it actually comes to the recipients attention, or when the recipient, absent at the time of delivery, has returned home and has had a reasonable opportunity to read it.
+That term is clearly identified by the common law authorities as the correct one.
+Although there has been a different approach taken to the identification of the effective date of termination of employment for statutory purposes connected mainly with the running of time for bringing proceedings for unfair dismissal, contracts of employment are not otherwise an exception to the legal principle applicable generally to relationship contracts, as the courts dealing with the statutory question have been at pains to emphasise.
+True it is that many of the old cases in which the common law rule has been laid down have concerned the landlord and tenant relationship, but the reasoning in those cases is not specific to that relationship.
+Nor are the consequences of the loss of a home or place of business necessarily of a lesser order than those following from the loss of a job.
+I would add that there are in my view sound reasons of policy why the implied term should be as I have described, to some of which I will refer in due course.
+But these do not amount even collectively to a ground for my conclusion, save in the negative sense that the existing law is not so defective in policy terms that it needs now to be changed.
+Rather, my conclusion is based simply upon an analysis of what the reported cases show that the law already is on this question.
+My analysis accords closely with the reasoning to be found in the dissenting judgment of Lewison LJ in the Court of Appeal.
+I gratefully adopt Lady Hales summary of the facts.
+Although the date upon which the termination notice was duly delivered was postponed because of the absence of anyone at Mrs Haywoods home to sign for recorded delivery, the helpful intervention of Mr Crabtree in going to the sorting office and collecting it meant that, for present purposes, it was duly delivered on 26 April, just in time for it to expire before Mrs Haywoods 50th birthday if giving notice is effective at the time of due delivery.
+But Mrs Haywood did not return home from her holiday abroad until the following morning, so it did not come to her attention until then, nor did she have a reasonable opportunity of reading it before her return.
+The Common Law Cases on Notices
+I am also content largely to follow my Ladys summary of the authorities, although I will need to say a little more about the reasoning in some of them.
+The earliest is Jones d Griffiths v Marsh (1791) 100 ER 1121.
+The issue in that case was as to the validity of service of a notice to quit premises let to a tenant on a periodic tenancy.
+The notice was hand delivered to the tenants home (not the premises demised by the lease) and given to the tenants servant, with an explanation of its contents.
+Lady Hale has cited the relevant dictum of Kenyon CJ: in every case of the service of a notice, leaving it at the dwelling house of the party has always been deemed sufficient.
+The context shows that he was speaking in the widest possible terms, about the services of notices generally, rather than just about notice to quit.
+He gave, as examples, notices of any kind required to be served by statute, service of an attorneys bill, service of a declaration, service of legal process and even service of a sub poena.
+The only exception was what we would now call a penal notice, where non compliance might expose the recipient to imprisonment for contempt of court, which required personal service.
+That was not a case about timing, because there was no evidence that the notice to quit ever reached the tenant himself, although Buller J was prepared to infer that it had done.
+Nonetheless it is inherent in a conclusion that the notice was valid upon due delivery to the tenants home that it was given then, and not at the time when it might have come to the tenants attention.
+It is to be noted that Kenyon CJ was not purporting to decide the point for the first time.
+He took it to be settled law, of the widest application to notices required to be served.
+I would not agree with the submission for Mrs Haywood that the case was one about service upon an agent of the tenant, although it was given to a servant.
+The judgments make no mention of agency, and service was said to be effected by leaving the notice at the tenants house, rather than by giving it to anyone.
+In 1791 it may be doubted whether houses generally had letter boxes, so there may have been no alternative than to knock on the door and give the notice to someone.
+The very short report of Doe d Buross v Lucas (1804) 5 esp 153 does seem to suggest a different analysis from that laid down by Kenyon CJ in Griffiths v Marsh, for the reasons set out by Lady Black in her judgment.
+But it is important to bear in mind that in that case the tenant had died before the notice to quit was given, and the tenancy had by then become vested in the deceased tenants widow.
+The report does not indicate whether she was living at the property when the notice was served.
+I would for my part be reluctant to treat the common law rule as validating the giving of notice by delivery only to the home of a deceased former tenant.
+With respect to Lady Black I do not consider that Walter v Haynes (1824) Ry & M 149 is of any real assistance.
+That was a case in which the plaintiff sought to prove service of a notice of dishonour of a bill of exchange by evidence only that she had posted it, addressed to Mr Haynes, Bristol.
+It was rejected as sufficient evidence because Bristol was a large town, which might contain any number of residents by the name of Haynes.
+It is true that Abbott CJ used language about proving that the notice had come into the hands of the intended recipient, but this was not a case about the distinction between delivery to the persons home, and personal delivery into his hands.
+On the contrary, had there been a sufficiently detailed address on the letter, so that it appeared to be directed to his home, proof of posting would have been sufficient.
+Doe d Neville v Dunbar (1826) Moot M 9; 173 ER 1062 is the earliest case cited to us about the timing of service, again of a notice to quit.
+The relevant lease required two quarters notice to quit.
+Notice to quit on the September quarter day needed to be given by 25 March.
+Two copies were hand delivered to the tenants home (again, not the demised premises) on 22 March by the landlords attorney and given to a servant and an otherwise unidentified lady there.
+But the attorney was told that the tenant was absent and would not return home until 26 March.
+Nonetheless the notice was held to have been given in good time.
+This case has an interesting similarity with the present case, since Mrs Haywood had informed the Trust that she was going abroad for a holiday, and was still away when the termination letter was duly delivered.
+The very short judgment of Abbott CJ, following the Griffiths v Marsh case, included the dictum: were it otherwise, a landlord would have no means of determining a tenancy, if his tenant happened to be absent from his house at the time when it was necessary to serve the notice.
+Again, there is no indication that the court was treating this as a case of personal service upon an agent of the tenant.
+The emphasis is all on delivery to the home of the person to be served.
+The underlying theme of the judgment is to recognise that where a contract is terminable by a period of notice, it must be interpreted in a way which makes it possible for the person seeking to terminate to give that notice at the appropriate time, even if the other party is absent.
+Lady Black notes in her judgment that both counsel and the judge referred to a presumption of due delivery where the recipients agent is given the notice, and is not called to prove that she did not inform her master in good time.
+But it is hard to see how such a presumption could have operated to save the notice in that case, because the landlords attorney was told that the tenant was away and would not be returning until the day after the last available date for service.
+In the absence of telephones, it is hard to see how the tenant could have been informed in good time.
+However that may be, I consider that Abbott CJ was seeking to make it clear that, regardless of any such presumption, notice was duly given, by being delivered to the tenants house in good time.
+Papillon v Brunton (1860) 5 H & N 518; 157 ER 1285 makes it even clearer that the principle is not dependent upon personal delivery to an agent.
+It is also the earliest case about postal service.
+Again, service of the notice to quit had to be given by the tenant by the March quarter day, and it was proved that it had been duly delivered by post to the landlords agents business premises late on that day, between six and seven oclock in the evening, after the agent had left for the day.
+It only came to his attention on the following morning.
+Pollock CB said that the notice was duly delivered on the quarter day.
+He said: the notice was delivered at the agents place of business in sufficient time to inform him, if he had been there, that the tenancy was to be determined at the time specified.
+It is implicit in that finding that it was not necessary for the notice actually to have come to the agents attention on that day, or for him to have been at the address at all on the date of due delivery.
+In one sense this is a case about service on an agent, but the ratio is that timely service at the business address of the agent is sufficient, regardless whether it comes to the attention of the agent in good time.
+The case is therefore on all fours with those described above, save that it related to business premises rather than to the home of the person to be served.
+Furthermore Pollock CB said (during argument) that leaving a notice at the landlords dwelling while he was away abroad would have been good and therefore timely service.
+Baron Bramwell said that: if a person tells others that a particular place is his place of business where all communications will reach him, he has no right to impose on them the obligation of finding out whether he sleeps at his place of business or elsewhere.
+I doubt whether, in the absence of any express limitation by the agent, it is necessary that the notice should be given within the hours of business.
+The message to be taken from that observation, (with which Baron Martin agreed) coupled with Baron Pollocks observation during argument is that, if a person nominates an address (home or business) for delivery of notices under a contract, without limiting the time when a notice may be delivered there, they take the risk that it arrives when they (or their agent) are not actually there.
+That which is true about the time of day is in my judgment equally applicable to any longer period of time.
+For as long as the intended recipient holds out an address as the place to which to deliver a notice, then that person takes the risk that, at the time of delivery, there will be no one there to read it.
+Applied to the present case, Mrs Haywood knew that she planned to be away from home on a holiday at a time when her employers might wish to terminate her employment by notice.
+She could have supplied them with an alternative means (or place) of delivery of notice to her while away, such as the address of her hotel or her email address, but she did not.
+Her notice period was a long one, and it is not therefore at all surprising that she did not do so, and certainly not a matter for criticism.
+However long her holiday, she would be back home to read her incoming mail long before her employment actually ended.
+But her address remained the place at which such a notice could be delivered, even if she might not be there to receive it.
+The question reached the House of Lords in Tanham v Nicholson (1872) LR 5 HL 561 on an Irish appeal.
+It was about personal service of a landlords notice to quit upon an agent of the tenant at the tenants home, which formed part of the demised premises.
+The agent then destroyed it, so that the tenant never received it.
+It was therefore a case about agency, rather than merely service by post at the recipients home.
+Nonetheless there are some relevant dicta.
+Lord Westbury said: If the landlord has once done that which the law throws upon him the obligation to do, his rights consequent upon having performed that legal duty ought not to be affected in any manner whatever by that which is done by his antagonist, upon whom the notice has been served.
+It would be an idle thing to say that a landlord serving a notice in due manner according to law, is to be deprived of the benefit of what he has done by the wilful act of the servant of the tenant, or by the incapacity of that servant, or by any accident that may befall the notice after it has been received in the dwelling house of the tenant on whom it was served. (my emphasis)
+Later, commenting on the Jones v Marsh case, he continued: Lord Kenyon lays it down as beyond the possibility of dispute that in every case the service of a notice by leaving it at the dwelling house of the tenant has always been deemed sufficient.
+But he qualifies that by explaining that he speaks of notices affecting property, as notices to quit, and not those notices which are intended to bring an individual within personal contempt.
+Those may require personal service.
+The other, the ordinary civil notice (if I may so call it) is abundantly satisfied if it be left at the dwelling house of the party.
+Again, the generality of this dictum, as applicable to the ordinary civil notice is significant.
+It is apparent that neither Kenyon CJ nor Lord Westbury were confining their analysis to landlord and tenant cases.
+In their view, every kind of notice not requiring personal service such as contempt proceedings, falls within the principle that due delivery to the recipients home is sufficient.
+I have no doubt that they would have regarded a notice to terminate an employment as an ordinary civil notice.
+Lord Westbury concluded: I shall be glad, therefore, if we can relieve the law from a degree of uncertainty and doubt brought into it, contrary to all principle, and if we can, in justice to the landlord, relieve him from having an act done by him, which act satisfies the obligation of the law, nullified and rendered of no effect by circumstances which have happened altogether after the delivery of his notice, and in the house of the tenant or under the control of the tenant, with which the landlord has no concern whatever.
+In my judgment these dicta reinforce what appears from the earlier cases, namely that from the moment when an ordinary civil notice is duly delivered to the home (or office) of the intended recipient, the law allocates the risk of mishap thereafter to the recipient.
+Those risks include destruction of the notice before it comes to the attention of the recipient, but also the risk (exemplified by the Neville v Dunbar and Papillon v Brunton cases) that it will not come to the attention of the intended recipient until after the due date for service because he or she is away from home.
+This is because the obligation on a person to give such a notice must be one which can be effectively discharged by taking steps available to that person, without the effectiveness of those steps being undermined by matters within the control of the intended recipient.
+A recurrent theme in the speeches of both the Lord Chancellor and Lord Westbury is that, to the extent that the dicta originating with Buller J in Jones v Marsh and Lord Ellenborough in Buross v Lucas might suggest that delivery to the recipients home or agent might only raise a rebuttable presumption of due delivery, they were wrong.
+In respectful disagreement with Lady Black, I do not read their concentration upon agency, or any part of what Lord Westbury said about what he called the lower ground to represent a stepping back from their firm adherence to what Kenyon CJ said in Jones v Marsh, or what Abbott CJ said in Neville v Dunbar as representing the high ground of principle which they sought trenchantly to affirm.
+They focussed upon agency, and upon the lower ground only because that was the way in which the case had mainly been argued.
+I agree that with Lady Black that Lord Colonsay appears to have confined himself to the lower ground.
+Lady Black refers to Hogg v Brooks (1885) 15 QBD 256.
+The case may have turned upon an unusually drafted break clause in a lease.
+In any event none of the authorities cited to us are referred to in the brief judgment of Brett MR.
+His conclusion appears to have been that, for as long as the tenant remained untraceable, the break clause in the lease simply could not be activated at all.
+I venture to doubt whether that very uncommercial result, derived from a literalist reading of the clause, so as to exclude service either upon the demised premises, or upon the last known residence of the tenant, would be followed today.
+I agree with Lady Hale that Stidolph v American School in London Educational Trust Ltd [1969] 2 P & CR 802 is not of decisive force, because it was not suggested that the intended recipient was not at home when the relevant statutory notice arrived by post.
+But I do not regard the fact that, in that and other cases, the requisite formalities for giving notice are statutory, means that the cases can be ignored.
+In every case the question is: what duty or obligation by way of service or delivery is imposed upon the person required to give notice? Once that duty has been performed, matters which then affect the question whether or when the notice actually comes to the attention of the intended recipient are for the risk of the recipient.
+In the present case Mrs Haywood does not suggest that postal delivery to her home was not a permitted method of giving notice of termination.
+The Brimnes, Tenax Steamship Co Ltd v The Brimnes (Owners) [1975] 1 QB 929, CA was a case about the summary termination, by telex, of a charterparty by the owner upon breach by the charterer.
+It was not about termination on notice.
+The dicta cited by Lady Hale recognise the impracticability in that context of an implied term that the communication of termination be timed to take effect only upon the telex actually being read, or coming to the attention of a responsible employee.
+Beyond that the case offers little assistance.
+In my judgment the Trust was right to place emphasis in its submissions upon the wide range of statutory provisions which appear to be formulated upon an assumption that service of what may loosely be described as ordinary civil notices is completed upon delivery to the intended recipients address, regardless when, or even whether, the contents thereafter come to the attention of the recipient.
+They include section 7 of the Interpretation Act 1978, section 196 of the Law of Property Act 1925, section 1147 of the Companies Act 2006, section 29 of the Misuse of Drugs Act 1971, section 267 of the Public Health Act 1875 and Part 6 of the Civil Procedure Rules.
+All of them provide for the service or giving of notices by post to the intended recipients address.
+None of them require the notices to be brought to the attention of the recipient, or postpone the effective date of service or delivery until an absent intended recipient has returned home.
+Some of them provide for a rebuttable presumption that the notice is deemed to be delivered on a specified date after posting, but the presumption is as to the date of due delivery (sometimes described as receipt), not the date when the notice comes to the attention of the intended recipient.
+That is why, in the Stidolph case, Edmund Davies LJ said that the relevant statutory presumption of due receipt would be undermined if the recipient could, while admitting receipt, still challenge the notice on the basis that its contents had not actually come to his attention.
+To much the same effect is the dictum of Carnwath LJ in Wilderbrook Ltd v Olowu [2005] EWCA Civ 1361; [2006] 2 P & CR 4, cited by Lady Hale.
+While I agree that cases about statutory provisions for service of notices by post do not directly impinge upon the construction of an employment contract to which no such provision applies, they are of such wide application to ordinary civil notices that they can fairly be said to reflect settled common law, from the earlier cases which I have described, to the effect that if postal or other delivery to the recipients home is an authorised method of giving notice, it is achieved once the notice is actually delivered, regardless of whether the intended recipient is actually at home, and regardless of what may thereafter happen to it when it gets there, such as being burned by an agent or eaten by the dog.
+Like Lewison LJ, and in respectful disagreement with Arden LJ, I do not read Freetown Ltd v Assethold Ltd [2012] EWCA Civ 1657; [2013] 1 WLR 701 as an authority to the contrary.
+At para 37, Rix LJ speaks of the common law as requiring proof of receipt, whereas the Interpretation Act deemed receipt from proof of posting.
+But he did not thereby mean that the common law required it to be shown that the document had actually come to the attention of the recipient, merely that it had been duly delivered at the recipients address.
+This is apparent from his description of the facts, at para 3.
+It was a case where the answer to the question whether a statutory appeal had been issued in time turned upon the time lag between when it was posted and when it arrived, not between when it arrived and when its contents first came to a persons attention.
+The essential difference between my analysis of the common law cases and that of Lady Hale and Lady Black is that they treat them all as at least consistent with the theory that delivery to an agent is as good as delivery to the principal, in the eyes of the law.
+I agree that this theory is capable of being identified as one of the strands by which those cases where delivery was made on time to an agent of the intended recipient at the principals home can be analysed.
+But it does not address the cases, such as Papillon v Brunton, where there was no one at the specified (business) address at the relevant time.
+Furthermore, if the underlying principle is that delivery is complete only when there is actual communication to the intended recipient or a reasonable opportunity to read the contents of the notice, the agency theory fails to explain those cases, such as Neville v Dunbar, where the agent could not possibly have communicated the contents of the notice to the intended recipient in sufficient time, or those where, on the facts found, there was no such communication, such as Tanham v Nicholson.
+The agency theory is simply not supportive of the supposed principle.
+Rather, it supports the concept of the allocation of risk, where delivery either to the address supplied by the intended recipient, or to the recipients agent, transfers to the recipient the risk as to the consequences which then ensue, including the consequences of any delay before it reaches the hands of the recipient.
+Nor does the theory that the agency analysis was what mattered address the trenchant wording of the senior judges, which constantly asserts that delivery to the relevant home or business address is sufficient.
+In days when homes were (at least among the moneyed classes who could afford to litigate) usually staffed even where their resident owners were away, there may not have appeared to be much practical difference between the transfer of risk when the notice was delivered to the intended recipients home (or business) address, and when it was put into the hands of an agent.
+But the leading judgments are careful to state that either will do, and the typical modern case where a home address is empty when the owner is away makes the delivery to the address alternative more important than it may once have been.
+The Employment Cases
+Turning to cases about employment there is, as Lady Hale observes, very little about the common law as to termination on notice.
+There is however a significant amount of authority about the requirements for summary termination.
+In my judgment, they say almost nothing about the requirements for termination on notice.
+Summary termination means that the employment relationship comes to an abrupt end, with immediate consequences including but not limited to the running of a short limitation period for the bringing of unfair dismissal proceedings.
+It is an exceptional process, whereas termination on notice is the normal agreed way in which (subject to statutory consequences about unfairness or discrimination) the contract may be terminated, usually by either side.
+Summary termination may be a right conferred upon the employer by express contractual term, in specified circumstances usually involving serious breach of contract by the employee.
+It may just consist of the acceptance by one party of a repudiatory breach by the other as putting an immediate end to the contract.
+It is therefore no surprise to find dicta in some (although not all) of the authorities on summary termination (usually called dismissal) to the effect that actual communication to the employee is necessary.
+By contrast termination on notice always involves a period thereafter while the employment relationship continues.
+That period may be short or long, but will usually include sufficient time for a delay between the date of delivery of the notice and the date when it comes to the attention of the employee to be accommodated, so that the employee still knows about the termination well before it happens, even if that period may be shorter than the full contractual or statutory notice period.
+The rules which the common law has developed over centuries about the giving of ordinary civil notices represent a compromise between the reasonable need for the givers of the notice to be able to exercise the right triggered by the notice, at a time of their choosing, without being hindered by uncertainties about what happens to the document containing the notice after they have parted with it, and the need of the recipients to receive the contents of the notice at a place where it is likely to come to their attention within a reasonable time.
+Thus the common law has not (as it did in relation to acceptance of a contractual offer) treated mere posting as sufficient.
+Although posting raises a presumption of due delivery, it remains open to the intended recipient to prove that the notice document never arrived.
+Due delivery to the recipients home (or office) marks the point where the risk of mishap passes from the sender to the recipient.
+There is no reason why the law should automatically apply this time honoured compromise to the more draconian and immediate process of summary termination.
+Nor by the same token is there any basis to read the cases about summary termination as saying anything about the requirements for valid termination on notice.
+Brown v Southall & Knight [1980] ICR 617 was a case about summary dismissal.
+The question was whether the date of delivery of the letter summarily dismissing the employee was the effective date of termination for statutory purposes connected with the period of his continuous employment, or the slightly later date when the employee returned home and read it.
+None of the cases about the requirements of a notice were cited to the EAT.
+This is hardly surprising, because it was simply not a case about termination on notice.
+Had it been, the time lag between delivery and reading the notice would not have mattered, because neither event would have terminated the employment there and then.
+The passage in the judgment of Slynn J cited by Lady Hale confines his analysis to summary termination in express terms.
+He says: In our judgment, the employer who sends a letter terminating a mans employment summarily must show that the employee
+has actually read the letter
+The next in time is London Transport Executive v Clarke [1981] ICR 355, which was about the requirements for the effective communication by the employer of its election to treat a repudiatory breach by the employee as having terminated the contract; ie summary termination.
+This was held to have been achieved on the date when a letter to that effect was delivered by post to the employees home address, even though he was not at home.
+The employee, who had been abroad without leave, returned home and read the letter about three weeks later.
+It is fair comment that the date issue was not critical to the outcome, but the Court of Appeal appear to have regarded it as axiomatic that the communication of the acceptance of the repudiation was effectively achieved by, and at the time of, the delivery of the letter to the employees home when he was not there.
+The Brown case was cited, but not referred to in the judgments.
+The EAT applied a slightly more nuanced approach to the requirements for communication of summary termination in Hindle Gears v McGinty [1985] ICR 111, which was a case about the attempted summary dismissal of an entire group of striking workers, by letters to all their homes.
+Two workers decided to return to work before the letters arrived, so they had no opportunity to read them before they arrived for work.
+The question was whether they had been dismissed and then re engaged on arrival at work, or not dismissed before they resumed work.
+Following and developing the decision in the Brown case, Waite J said that the requirement in a summary termination case for the communication of the dismissal to the employee meant that the letter had either to have been read by the employee, or that the employee had had a reasonable opportunity to read it.
+Again, it was not a case about termination by notice, and none of the cases about the requisites of an ordinary civil notice were, or needed to be, cited.
+McMaster v Manchester Airport plc [1998] IRLR 112 was also a case about summary dismissal.
+That much was common ground.
+It is true that the requirement for communication to the employee, for the purpose of determining the effective date of communication, was treated as applying both to summary dismissal and dismissal on notice, but this was again common ground.
+The only case referred to in the judgment was Brown v Southall & Knight.
+The report does not show whether any other cases were cited, but it looks most unlikely (bearing in mind the common ground) that the cases on the requirements of an ordinary civil notice were cited.
+The dictum of Morison J (at para 9) that constructive or presumed knowledge has no place in private rights under employment contracts may be right or wrong, but it has nothing to do with the requirements of a valid notice.
+Validity upon due delivery does not depend on any kind of knowledge on the part of the intended recipient.
+It is simply a good notice upon due delivery, just as is a posted acceptance of an offer, even if never delivered or received.
+Edwards v Surrey Police [1999] IRLR 456 was not (save in a statutory sense about constructive unfair dismissal) about a dismissal at all.
+Rather, it was about summary resignation.
+The issue was whether the employees employment had an effective date of termination when she decided to resign and wrote a letter to her employer saying so, (as had been held at first instance), or when the letter of resignation reached the employer (as the EAT held).
+There neither was, nor needed to be, consideration of the requirements of a valid notice, as between the due delivery and the reading of the letter.
+On either basis, the effective date was within the period for the bringing of her claim for constructive unfair dismissal.
+The next case, George v Luton Borough Council (2003) EAT/0311/03 is also about summary termination by resignation.
+The employee gave notice by letter dated 30 July 2002 that she was resigning with effect from 31 July, complaining of constructive dismissal.
+It reached the offices of the employer on 1 August, but was not read by anyone in authority there until 2 August.
+She commenced proceedings for constructive unfair dismissal only on 1 November.
+The EAT held that the letter was to be construed as an acceptance of repudiation by the employer, not as a 28 day contractual notice of termination.
+The case offers no assistance therefore on the question as to the requirements or effective date of a notice of termination.
+The Brown, McMaster and Edwards cases were all cited, and it was accepted that summary termination by the employer required communication to the employee.
+But the EAT held that a summary resignation letter from the employee took effect upon delivery to a corporate employer, rather than upon its being read by someone in authority.
+None of the cases about ordinary civil notices were cited, or relevant.
+Potter v RJ Temple plc (2003) UKEAT/0478/03 was yet another case about an employees acceptance of repudiation by the employer as putting an immediate end to the contract.
+The acceptance was faxed to the employer, and arrived at 8.21 pm on 13 September 2002, but was read only on the following day at the earliest.
+The employees application for constructive unfair dismissal was out of time if the faxed letter took effect upon due delivery.
+Although it was not a case about termination by notice, both the facts and the outcome bear a real similarity with Papillon v Brunton, although neither that case or any of the others on ordinary civil notices were cited.
+HHJ Richardson took it as read that termination by the acceptance of a repudiation needed to be communicated, but concluded that the need for certainty as to the effective date of termination for statutory purposes meant that communication should be taken to be achieved upon due delivery of the letter, rather than upon its being read, even though the letter arrived after office hours.
+The developing jurisprudence in the EAT about the effective date of termination by an employer was approved in the Court of Appeal by majority and by this court unanimously in Gisda Cyf v Barratt [2009] ICR 1408 and [2010] 4 All ER 851.
+It was again a case about summary dismissal rather than dismissal on notice.
+Once effective, it brought about the immediate termination of the contract.
+The dismissal followed disciplinary proceedings against the employee.
+The letter was posted on 29 November 2006, delivered to the employees home, while she was away visiting a relative, on 30 November, and read by her on the day after her return, on 4 December.
+The timeliness of her subsequent proceedings for unfair dismissal depended upon the effective date of termination being on or after 2 December.
+It was held that the effective date of termination was 4 December, when the employee read the letter.
+Both the majority in the Court of Appeal and this court were at pains to limit their reasoning to the statutory meaning of the effective date of termination, rather than, if different, to the ordinary common law of contract as applied to employment contracts which, it had been argued, pointed to the date of due delivery, even in cases of summary termination.
+The essential reasoning was that it would be wrong, in construing a statutory term in legislation for employee protection, to conclude that a short limitation period for bringing a claim should start running before the employee had learned, or had a reasonable opportunity to find out, that her employment had been terminated: see per Lord Kerr, giving the judgment of the Supreme Court, at paras 34 37.
+The phrase effective date of termination defined in section 97(1) of the Employment Rights Act 1996 contains separate formulae, in separate sub sections, for termination on notice, and termination without notice.
+For termination on notice it is the day upon which the notice expires.
+For termination without notice it is the date upon which the termination takes effect.
+The Gisda Cyf, Brown and McMaster cases were all about the second of those formulae.
+The only considered judicial view in Gisda Cyf about what was the relevant law of contract for the purpose of determining when summary dismissal by letter to the employees home took effect is to be found in the dissenting judgment of Lloyd LJ in the Court of Appeal.
+He considered that it was the date of due delivery rather than the date (if later) when the letter was or reasonably could have been read.
+The majority in the Court of Appeal did not express a view on the point, and nor did this court, not least because, by then, the employee was unrepresented.
+In both courts, the contractual analysis was, in the end, held to be irrelevant.
+But the case does make clear that the Brown and McMaster line of cases in the EAT about the effective date of termination are about statutory construction, not the common law about the termination of contracts.
+They are not even about the statutory meaning of effective date of termination when the contract is terminated on notice, rather than summarily.
+Bearing in mind that the effective date in a notice case is not until the notice expires, which may be weeks after it is delivered or read, it is by no means obvious that the same answer to the question about delivery or reading of the notice would follow from the analysis of the courts reasoning in relation to summary termination.
+I am content to leave that question to be answered on an occasion when it needs to be (if it ever arises).
+I agree with Lady Hales reasons for not finding this courts decision in Geys v Socit Gnrale, London Branch [2012] UKSC 63; [2013] 1 AC 523 of significant assistance.
+It was about the ordinary common law of contract, but it was specifically about two types of alleged summary termination, one by repudiatory breach and the other by the making of a payment in lieu of notice.
+Any issue about a time lag between the due delivery and reading of a notice of dismissal was dealt with by express term.
+Likewise I have not found significant assistance from the latest dismissal case in the EAT, namely Sandle v Adecco UK Ltd [2016] IRLR 941.
+The question was whether the employee had been summarily dismissed by inaction on the part of the employer.
+The EAT held that there had been no dismissal at all, because nothing relevant had been communicated to the employee.
+The requirement in the passage cited by Lady Hale that there be something of which the employee was made aware does not (and was not intended to) resolve the question whether communication by written notice is effective upon due delivery.
+Standing back and reviewing the employment cases as a whole, the following points stand out.
+First, none of them was about termination on notice, by the employer or the employee.
+They were all about summary termination.
+Secondly, and unsurprisingly, none of the long standing common law authorities about the requisites of an ordinary civil notice, reviewed at the beginning of this judgment, were even cited, although there was some, inconclusive, consideration of the common law principles in the Gisda Cyf case in the Court of Appeal, broadly supportive of due delivery as the relevant date.
+Thirdly, the only authoritative guidance that a summary termination document is not effective upon due delivery, but only when read, or after a reasonable opportunity for reading, relates to the statutory context about the effective date of termination, in which the potential for a different answer under the common law is treated as irrelevant.
+In the non statutory summary termination context, the cases go either way.
+Fourthly, the policy reasons for rejecting due delivery in the statutory context are firmly linked to the fact that summary termination has immediate effect, in particular by starting the running of a short limitation period, which is simply not a consequence of the due delivery of a notice of termination taking effect at a future date.
+Finally, the only statement in all the employment cases (in McMaster) that a termination on notice is given only when it is read, rather than when delivered, merely recorded the parties agreement about the matter, rather than even an obiter dictum by the court.
+Policy
+I have already expressed my view that policy plays a subordinate role where there is already an established common law principle which supplies the standard implied term.
+I have described the common law principle that an ordinary notice takes effect when it is duly delivered to the recipients address as a compromise which strikes a fair balance in relation to the risks to both parties of the notice not immediately reaching the recipient, and which preserves as far as possible the reasonable requirements of both the giver and the recipient.
+The time honoured implied term therefore has a sensible and even handed policy objective behind it.
+Some of its advantages benefit both parties equally.
+The foremost is certainty.
+Both the employer and the employee need to know when the employment will actually terminate, even where (as often happens) the notice expresses an expiry date by reference to a stated period from receipt.
+The employee needs to know from what future date to seek to put in place alternative employment, or state assistance in lieu of wages.
+An employee giving the notice to their employer may well wish to fix precisely the date from which he or she is free to begin employment, for example, with a competitor, free from restrictions under the current contract.
+The employer giving or receiving notice will wish to know precisely from which date to recruit, train and put in place a replacement employee.
+Neither will wish to be subject to uncertainties about matters known only to the other party, such as when after due delivery the notice came to the attention of the intended recipient.
+Neither will wish to have to become embroiled in a dispute about whether the other party deliberately absented themselves from home or office in order to make the giving of timely notice more difficult or even impossible.
+Counsel for Mrs Haywood submitted that it was a policy advantage to treat both the statutory test for effective date of termination and the common law rule about the taking effect of a notice of termination in the same way.
+I disagree.
+First, it ignores the fact that all the cases on effective date relate to summary termination rather than termination on notice, and that the policy considerations applicable to each are not the same.
+Secondly, to treat the statute as amending what I consider to be settled common law about termination on notice is to give it an effect well beyond that which it has been held to have, and beyond that which is needed to preserve to the employee the full benefit of the short limitation period.
+It was submitted further that the employment world has been proceeding since the decision in the Brown on the assumption that it reflects the common law, so that parties to employment contracts currently in force must be taken as making that assumption.
+Again, I disagree.
+In my judgment the absence from the Gisda Cyf case of any judicial challenge to Lloyd LJs analysis of the position at common law makes this submission untenable.
+Where, as here, the development of a standard implied term at common law may be perceived to be based upon a compromise about the fair allocation of risk, as I have described, it is inherently unlikely that all policy considerations will point in the same direction.
+There will always be reasons for, and against, drawing the compromise line there, or elsewhere.
+In the present circumstances I am satisfied that there is a sufficient basis in policy for drawing the line where it has for so long been drawn, unless matters have so changed over time to require it now to be moved.
+True it is that, in the modern world, few private homes are staffed in the way in which a few were in the 18th and 19th centuries.
+It may be that people now travel away from home, and certainly abroad, more than they used to.
+It may be that the post is a little less reliable than it may once have been.
+But it has not been submitted that these changes make a critical difference.
+Even if they are significant in relation to post, this will be a passing phase.
+Before long it is likely that most notices of this type will be sent electronically, accessible by the intended recipient anywhere in the world with a wi fi signal, via mobile phone or tablet.
+The Judgments in the Court of Appeal
+It will already be apparent that I find myself in broad agreement with the reasoning of Lewison LJ in his dissenting judgment.
+As for the majority, Proudman J held that nothing less than actual communication to the employee would suffice: see para 70(a).
+Arden LJ held that the essential requirement was receipt by the employee (regardless whether she opened it and read its contents) but that due delivery to the employees home was not sufficient for receipt, until at least she actually saw the envelope containing the letter: see para 149.
+These are but crude summaries of two carefully reasoned judgments, but those conclusions are in my judgment each inconsistent with the common law principles applicable to the delivery of ordinary civil notices, including employment notices, as I have sought to explain.
+Lady Hales formulation is slightly different again.
+She prefers the formula that notice is given at the earlier of the times when it is read, or when the employee has had sufficient time to do so.
+It is to be noted that, if departure is to be made from the long established principle that notice is given when it is duly delivered, no precise consensus has emerged as to the alternative, for the foundation of what we all recognise should be a standard implied term.
diff --git a/UK-Abs/train-data/judgement/uksc-2017-0080.txt b/UK-Abs/train-data/judgement/uksc-2017-0080.txt
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+The ruling under challenge in this case was made by the Crown Court judge at a preparatory hearing, held in anticipation of a criminal trial.
+That means that as yet no evidence has been heard and it cannot be known what the facts of the case may turn out to be.
+Such rulings are occasionally necessary in order to establish the basis on which the trial will be conducted.
+But it needs to be remembered that a point raised at that early stage may turn out to be at the centre of the trial, or to be merely peripheral, or indeed sometimes not to arise at all, depending on what evidence emerges, and which parts of it are in dispute.
+For this reason, reporting restrictions apply to this hearing: see para 26 below.
+The two appellants are charged with the offence of entering into funding arrangements connected with terrorism, contrary to section 17 of the Terrorism Act 2000 (the Act).
+Because it is not yet known what course the trial will take, as little as possible should be said now about the allegations, which may or may not be proved.
+It is enough to say that the appellants are charged with sending money overseas, or arranging to do so, when they knew or had reasonable cause to suspect that it would, or might, be used for the purposes of terrorism.
+The section of the Act which creates this offence says as follows: 17.
+Funding arrangements.
+A person commits an offence if (a) he enters into or becomes concerned in an arrangement as a result of which money or other property is made available or is to be made available to another, and (b) he knows or has reasonable cause to suspect that it will or may be used for the purposes of terrorism.
+The question which arises on this appeal concerns the correct meaning of the expression has reasonable cause to suspect in section 17(b).
+Does it mean that the accused must actually suspect, and for reasonable cause, that the money may be used for the purposes of terrorism? Or is it sufficient that on the information known to him there exists, assessed objectively, reasonable cause to suspect that that may be the use to which it is put?
+Of course, it may well be that at any trial under this section it will be the Crown case that a defendant actually did suspect, and for reasonable cause, that the money might be used in this way, and it may well be that an important issue at the trial will be whether that allegation is proved or not.
+But the judge in the present case addressed the question posed in the previous paragraph in case it were to arise at the trial.
+The question posed above has been addressed by counsel on both sides with commendable accuracy and lucidity.
+Both the trial judge and the Court of Appeal (Criminal Division) concluded that the correct answer was that the words used in the statute plainly mean that it is sufficient that on the information known to the accused, there exists, assessed objectively, reasonable cause to suspect that the money may be used for the purposes of terrorism.
+The appellants contend that this conclusion is wrong.
+They say that: the words used are capable of either meaning; (i) (ii) given that, the well established presumption that an offence creating provision ought to be construed as requiring an element of a guilty mind (mens rea) operates to accord to the section the meaning that an accused must actually suspect that the money may be put to terrorist use; (iii) this is particularly so since the offence here created is a serious one, to be contrasted with the kind of regulatory contexts where a legislative intention to create an offence of strict liability may more easily be divined; (iv) the Court of Appeal erred in starting by asking the natural meaning of the words, and then whether that meaning had been displaced; it is said that it ought to have begun with the presumption of mens rea and asked whether that presumption had been displaced by the words of the section; and (v) the Court of Appeal erred in giving too much emphasis to the fact that the statute was designed to protect the public against the grave threat of terrorism; whilst this is so, it is not a reason to dilute the presumption.
+The presumption as to mens rea
+The presumption on which the appellants rely is indeed well established and has often been applied to the construction of statutes creating offences where the meaning is in doubt.
+The conventionally authoritative statement of the presumption is found in the speech of Lord Reid in Sweet v Parsley [1970] AC 132, 148, 149: our first duty is to consider the words of the Act: if they show a clear intention to create an absolute offence that is an end of the matter.
+But such cases are very rare.
+Sometimes the words of the section which creates a particular offence make it clear that mens rea is required in one form or another.
+Such cases are quite frequent.
+But in a very large number of cases there is no clear indication either way.
+In such cases there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did.
+That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea. it is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary.
+It is also firmly established that the fact that other sections of the Act expressly require mens rea, for example because they contain the word knowingly is not in itself sufficient to justify a decision that a section which is silent as to mens rea creates an absolute offence.
+In the absence of a clear indication in the Act that an offence is intended to be an absolute offence, it is necessary to go outside the Act and examine all relevant circumstances in order to establish that this must have been the intention of Parliament.
+I say must have been because it is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted.
+This statement of the principle was described by Lord Nicholls in B (A minor) v Director of Public Prosecutions [2000] 2 AC 428, 460 as magisterial.
+It has often been applied, and it is unnecessary to multiply examples.
+They include recent cases in this court, such as R v Brown (Richard) [2013] UKSC 43; [2013] 4 All ER 860, R v Hughes (Michael) [2013] UKSC 56; [2013] 1 WLR 2461, and R v Taylor (Jack) [2016] UKSC 5; [2016] 1 WLR 500.
+Whilst the principle is not in doubt, and is of great importance in the approach to the construction of criminal statutes, it remains a principle of statutory construction.
+Its importance lies in ensuring that a need for mens rea is not inadvertently, silently, or ambiguously removed from the ingredients of a statutory offence.
+But it is not a power in the court to substitute for the plain words used by Parliament a different provision, on the grounds that it would, if itself drafting the definition of the offence, have done so differently by providing for an element, or a greater element, of mens rea.
+The principle of Parliamentary sovereignty demands no less.
+Lord Reid was at pains to observe that the presumption applies where the statute is silent as to mens rea, and that the first duty of the court is to consider the words of the statute.
+Hughes (Michael) and Taylor (Jack), mentioned above, concerned offences of causing death by driving.
+They were cases where the language of the statutes was ambiguous and the presumption assisted the court to reach the conclusion that they imported an element of fault (although not necessarily of subjective mens rea rather than of error of driving).
+The words used by Parliament were words of causation of death.
+This court construed those words as importing an element of fault, principally because there were ample unambiguous alternative expressions which could and would have been used if the intention had been to create an offence of homicide which could be committed simply by being present on the road to be run into by someone else.
+By contrast, Brown (Richard) was a case in which this court had no doubt that the statutory offence of unlawful carnal knowledge of a girl under 14 did not contain a requirement that the accused know that the girl was under age.
+This conclusion was mandated despite the fact that the offence creating section was silent as to whether such knowledge was required or not.
+It was a conclusion compelled by the prior common law and statutory context, against which the offence had been created, by other provisions in the legislation, which had to be construed as a whole, and by the social mischief which the Act had been passed to meet.
+Thus these three recent cases are good illustrations of the truism that the presumption on which the appellants here rely is a principle of statutory construction, which must give way to either the plain meaning of the words, or to other relevant pointers to meaning which clearly demonstrate what was intended.
+It follows that the Court of Appeal in the present case did not fall into the error suggested, of wrongly starting with the words of the Act.
+On the contrary, that is the inevitable first port of call for any issue of construction, as Lord Reids statement of the principle in Sweet v Parsley expressly stated.
+The language of the statute
+Mr Moloney QC, for the appellants, was characteristically realistic, and correct, to recognise that the words of section 17(b) are such as, at first sight, suggest an objective test.
+The section makes it an offence where the defendant either knows or has reasonable cause to suspect.
+It does not say what one would expect it to say if it meant that the defendant must be proved actually to have suspected, that is: if he knows or suspects Nor, for that matter, does it say: if he knows or reasonably suspects It is thus very difficult to see this statutory provision as one of the kind which Lord Reid was describing in Sweet v Parsley, that is to say one which is silent as to the state of mind required for commission of the offence.
+Saik and OHara
+The appellants nevertheless contend that, if not silent, the provision is ambiguous, and thus that the presumption should operate to resolve the doubt in favour of the construction which favours an accused by requiring a greater degree of mens rea.
+This argument is founded largely upon the House of Lords decision in R v Saik [2006] UKHL 18; [2007] 1 AC 18 and particularly on some passages in the speech of Lord Hope in that case and in OHara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286.
+In Saik the substantive offence under consideration was one of the now repealed offences of money laundering contained in section 93A C of the Criminal Justice Act 1988.
+The relevant one was section 93C(2): (2) A person is guilty of an offence if, knowing or having reasonable grounds to suspect that any property is, or in whole or in part directly or indirectly represents, another persons proceeds of criminal conduct, he conceals or disguises that property; or converts or transfers that property or removes it (a) (b) from the jurisdiction, for the purpose of assisting any person to avoid prosecution for an offence to which this Part of this Act applies or the making or enforcement in his case of a confiscation order.
+It is certainly true that in Saik the House of Lords concluded that this section imported a requirement that the defendant actually suspect, as well as that he did so on reasonable grounds.
+Whilst the section under discussion in the present case speaks not of reasonable grounds but of reasonable cause for suspicion, it is not necessary to contemplate any distinction between the two for the purposes of the present argument.
+The appellants rely particularly on what Lord Hope said at paras 51 53, where he concluded that to stipulate for reasonable grounds for suspicion assumed the existence of actual suspicion.
+Lord Hope drew an analogy with statutory powers of arrest, including that considered in OHara which was section 12(1) of the Prevention of Terrorism (Temporary Provisions) Act 1984.
+There a constable was given powers to arrest without a warrant if he had reason to suspect the person arrested was concerned in terrorism.
+As Lord Hope remarked in both cases, such a power of arrest plainly assumes an actual suspicion and adds the requirement that it be held on reasonable grounds.
+It plainly does not contemplate a constable arresting someone whom he might have grounds to suspect, but of whom he has no suspicion, still less someone about whom he has not thought at all, but of whom it could be said that objectively there existed reasonable grounds to suspect him.
+The existence or otherwise of reasonable grounds for suspicion was not an issue in Saik.
+The defendant there concerned had made no bones about admitting that he suspected that the property which he had dealt with was the proceeds of crime; his contention was that he suspected but did not know.
+The charge he faced was not brought under section 93C(2).
+It was a charge of conspiracy to commit that statutory offence, and the point at issue related to the terms of section 1(2) of the Criminal Law Act 1977 which mandates proof of knowledge or intent when conspiracy is charged, even if the substantive offence is one which can be committed without such a state of mind.
+Accordingly, the construction of section 93C(2) arose only en route to the real question, which was the meaning of the requirement for knowledge if the charge is conspiracy.
+As all their Lordships, including Lord Hope at para 51, made clear, section 93C(2) contained within its own terms the answer to any issue about its construction.
+Since the statutory offence which it created could be committed only if the defendant acted with the purpose of assisting someone else to avoid either prosecution or a confiscation order, the section necessarily meant, or assumed, that the defendant had actual suspicion.
+As Lady Hale succinctly put it at para 102: Without that actual suspicion, he cannot act with the purpose required.
+For these reasons it is not possible to read either Saik or OHara as laying down a universal proposition that if a statute speaks of a person having reasonable cause to suspect, that will always assume that he has to have actual suspicion.
+The statutory context
+An offence of providing funding towards terrorism first appeared in the Prevention of Terrorism (Temporary Provisions) Act 1976.
+Section 10(2) of that Act provided: If any person gives, lends or otherwise makes available to any other person, whether for consideration or not, any money or other property, knowing or suspecting that the money or other property will or may be applied or used for or in connection with the commission, preparation or institution of acts of terrorism to which this section applies, he shall be guilty of an offence. [Emphasis supplied] That subsection was re enacted in essentially identical form in section 10(2) of the replacement statute, the Prevention of Terrorism (Temporary Provisions) Act 1984.
+These sections thus provided for an offence which required proof either of knowledge or of actual suspicion.
+However, when the 1984 Act was in turn replaced by the Prevention of Terrorism Act 1989 a change was made.
+Section 9(2) said: (2) A person is guilty of an offence if he (a) gives, lends or otherwise makes available to any other person, (b) whether for consideration or not, any money or other property; or enters into or is otherwise concerned in an arrangement whereby money or other property is or is to be made available to another person, knowing or having reasonable cause to suspect that it will or maybe applied or used as mentioned in subsection (1) above. [Emphasis supplied] A similar formulation (intending or having reasonable cause to suspect) was applied by the 1989 Act to the related offence contrary to section 9(1) of soliciting or receiving contributions; this offence had, in previous statutes, required proof of intention rather than of any form of suspicion.
+These changes can only have been deliberate.
+They are inexplicable unless it was the Parliamentary intention to widen the scope of the offences to include those who had, objectively assessed, reasonable cause to suspect that the money might be put to terrorist use, as well as those who intended that it should be, or knew that it would be.
+In particular, the change in the definition of the offence which is now section 17 of the Terrorism Act 2000, and here under question, is a change from knows or suspects to knows or has reasonable cause to suspect.
+That change can only have been intended to remove the requirement for proof of actual suspicion.
+It is not open to the court to ignore this kind of clear Parliamentary decision.
+That inevitable conclusion is reinforced by the presence in the 2000 Act of section 19.
+This creates an offence for specified groups of people of failing to disclose to a police officer a belief or suspicion, which has come to their attention in the course of their work, that another person has committed one of a number of specified terrorist offences.
+The offence is committed, according to section 19, where a person believes or suspects Thus the 2000 Act, here in question, demonstrates the currency, in the context of terrorist offences, of a reference to actual suspicion, at the same time as turning its back on such a reference section 17, with which this court is now concerned.
+The contrast is clearly a relevant pointer to the meaning of section 17.
+Similarly, section 18 of the same Act creates an offence of money laundering in relation to terrorist property.
+The offence contains no requirement of a mental element as a definition of the offence.
+Rather, by subsection (2), it provides that it is a defence for a person charged to prove that he did not know and had no reasonable cause to suspect that he was dealing with terrorist property.
+Thus the mental element provided for is consistent with that in the adjacent section 17, namely objectively assessed reasonable cause to suspect, although the onus of proof is reversed.
+This section also compellingly reinforces the construction of section 17 arrived at by the judge and the Court of Appeal.
+The contention of the appellants that section 18 can be read as providing a defence to a defendant who shows that he did not in fact suspect the terrorist nature of the property with which he was dealing is simply not consistent with the words used.
+If that is what had been the intention, section 18 would no doubt have provided a defence for an accused who did not know or suspect, using the juxtaposition of knowledge and suspicion which appears in the next following section 19.
+Although it is derived from a subsequent legislative amendment, section 21A is perhaps a further indication, if one were required, that the difference between actual suspicion and objectively assessed reasonable cause for suspicion remains one which is observed by Parliament.
+Section 21A (inserted into the Act by the Anti terrorism, Crime and Security Act 2001) creates an offence, for those operating within the regulated sector, of non disclosure of information suggesting an offence by another.
+By subsection (2) the first element of the definition of this offence is in the alternative: (2) The first condition is that he (a) knows or suspects, or (b) has reasonable grounds for knowing or suspecting, that another person has committed or attempted to commit an offence under any of sections 15 to 18.
+In that section, or any other similarly constructed, it is plain beyond argument that the expression has reasonable grounds for suspicion cannot mean actually suspects.
+Strict liability?
+The presumption of which Lord Reid spoke in Sweet v Parsley, and which has been invoked since where consistent with the principles of statutory construction, is a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did: see para 8 above.
+The magistrates had found specifically that Miss Sweet, who did not live in the house which she owned but let out had no knowledge whatever that the house was being used by her tenants for the purpose of consuming prohibited drugs.
+The question posed for the House of Lords by the Divisional Court was whether the relevant section of the Dangerous Drugs Act created an absolute offence.
+Lord Reid adverted at p 150B to the fact that Parliament could have dealt with the social problem involved either by inverting the onus of proof so as to require an accused to demonstrate lack of knowledge, or by providing that the offence could be committed by negligence.
+It had not, however, in that case done so.
+In the present case it would be an error to suppose that the form of offence creating words adopted by Parliament result in an offence of strict liability.
+It is certainly true that because objectively assessed reasonable cause for suspicion is sufficient, an accused can commit this offence without knowledge or actual suspicion that the money might be used for terrorist purposes.
+But the accuseds state of mind is not, as it is in offences which are truly of strict liability, irrelevant.
+The requirement that there exist objectively assessed cause for suspicion focuses attention on what information the accused had.
+As the Crown agreed before this court, that requirement is satisfied when, on the information available to the accused, a reasonable person would (not might or could) suspect that the money might be used for terrorism.
+The state of mind of such a person is, whilst clearly less culpable than that of a person who knows that the money may be used for that purpose, not accurately described as in no way blameworthy.
+It was for Parliament to decide whether the gravity of the threat of terrorism justified attaching criminal responsibility to such a person, but it was clearly entitled to conclude that it did.
+It is normal, not unusual, for a single offence to be committed by persons exhibiting different levels of culpability.
+The difference in culpability can, absent other aggravating features of the case, be expected to be reflected in any sentence imposed if conviction results.
+Conclusion
+For these reasons it is clear that the conclusions arrived at by the trial judge and the Court of Appeal were correct.
+The appeal must be dismissed.
+Reporting restrictions
+the offences charged, as summarised in this judgment; the names of counsel and solicitors engaged in the appeal; the identity of the court(s) and the name of the judge(s); the names, ages, home addresses and occupations of the accused and (a) (b) witnesses; (c) (d) (e) whether for the purposes of the appeal representation was provided to either of the accused under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012; and (f) this judgment.
+Section 37 of the Criminal Procedure and Investigations Act 1996 imposes statutory reporting restrictions in relation to the hearing of interlocutory appeals such as the present.
+The objective is to ensure that the jurys consideration of the evidence and issues put before it is not at risk of being affected by prior reporting, for example of the details of the allegations or of discussion of possible issues.
+Those restrictions apply to the hearing of this appeal.
+Until the conclusion of the trial, nothing may be reported except the following:
diff --git a/UK-Abs/train-data/judgement/uksc-2017-0195.txt b/UK-Abs/train-data/judgement/uksc-2017-0195.txt
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+This appeal is concerned with the interpretation of article 24(2) of the Brussels I Recast Regulation (Parliament and Council Regulation (EU) No 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Recast Regulation)), which sets out a special regime to determine jurisdiction in relation to certain matters regarding the governance of corporations.
+Although the issue in the present case relates to where a Turkish company and certain Turkish domiciled individuals may be sued, and Turkey is of course not an EU member state, it is common ground that article 24(2) of the Recast Regulation applies to determine the question of jurisdiction which arises in this case.
+Article 24 is in Section 6 of the Recast Regulation, entitled Exclusive jurisdiction.
+Article 24(2) provides as follows: The following courts of a member state shall have exclusive jurisdiction, regardless of the domicile of the parties: (2) in proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or the validity of the decisions of their organs, the courts of the member state in which the company, legal person or association has its seat.
+In order to determine that seat, the court shall apply its rules of private international law;
+The sixth appellant (Koza Altin) is a publicly listed company incorporated in Turkey.
+It carries on a business specialising in gold mining.
+It is part of a group of Turkish companies known as the Koza Ipek Group (the Group) which were formerly controlled by the second respondent (Mr Ipek) and members of his family.
+Amongst other things, the Group has media interests in Turkey.
+The first respondent (Koza Ltd) is a private company incorporated in England in March 2014.
+It is a wholly owned subsidiary of Koza Altin.
+Mr Ipek says that he and the Group have been targeted unfairly by a hostile government in Turkey, including by making them the subject of an investigation into alleged criminal activity and taking steps against them in conjunction with that investigation.
+In order to defend himself as regards control of Koza Ltd, in September 2015 Mr Ipek caused a number of changes to be made to Koza Ltds constitution and share structure.
+A new class of A shares was created and Koza Ltds articles of association were amended to introduce a new article 26 (article 26), which purported to preclude any further changes to the articles of association or any change of directors save with the prior written consent of the holders of the A shares.
+Two A shares were issued, one to Mr Ipek and one to his brother.
+The validity and effect of these changes is in issue in these proceedings.
+The respondents contend that they are valid and lawful.
+The appellants contend that they are invalid and unlawful attempts to entrench Mr Ipek and his associates in control of Koza Ltd.
+In proceedings in Turkey relating to the criminal investigation in respect of Mr Ipek and the Group, on 26 October 2015 pursuant to article 133 of the Turkish Criminal Procedure Code the Fifth Ankara Criminal Peace Judge appointed certain individuals as trustees of Koza Altin and other companies in the Group, with power to control the affairs of those companies in place of the existing management.
+Pursuant to further decisions of the judge dated 13 January and 3 March 2016, the first to fifth appellants were appointed as the trustees in relation to Koza Altin.
+I refer to them together as the trustees, although in further proceedings in Turkey in September 2016 they were replaced by the Tasarruf Mevduati Sigorta Fonu (the Savings Deposit Insurance Fund of Turkey) as trustee of Koza Altin.
+The trustees, with Koza Altin itself, are the relevant parties in the present proceedings in England and for this appeal.
+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, requiring them to call a general meeting to consider resolutions for their removal and replacement with three of the trustees.
+The directors of Koza Ltd did not call such a meeting, so on 10 August 2016 Koza Altin served a notice pursuant to section 305 of the 2006 Act to convene a meeting on 17 August 2016 to consider those resolutions.
+The service of this notice prompted Mr Ipek and Koza Ltd to make an urgent without notice application on 16 August seeking an injunction to prevent the meeting taking place and, so far as required, orders for service out of the jurisdiction and for alternative service.
+Injunctive relief as set out in the application was sought on two bases.
+It was contended that (i) the notices of 19 July and 10 August 2016 (the notices) were void under section 303(5)(a) of the 2006 Act because at least one of the holders of the A shares (Mr Ipek) did not consent to the proposed resolutions and so, if passed, they would be ineffective as being passed in breach of article 26 (I refer to this claim as the English company law claim); and (ii) the notices were void on the basis that the English courts should not recognise the authority of the trustees to cause Koza Altin to do anything as a shareholder of Koza Ltd, because they were appointed on an interim basis only and in breach of Turkish law, the European Convention on Human Rights and natural justice, so that it would be contrary to public policy for the English courts to recognise the appointment (I refer to this claim as the authority claim).
+As regards jurisdiction, the primary submission for Mr Ipek and Koza Ltd was that permission to serve out of the jurisdiction was not required because the English courts had exclusive jurisdiction to deal with the whole claim pursuant to article 24(2) of the Recast Regulation.
+At the without notice hearing before Snowden J on 16 August 2016, the judge accepted this submission.
+He granted interim injunctive relief as sought by Mr Ipek and Koza Ltd and gave permission for alternative service at the offices of Mishcon de Reya LLP, the solicitors acting for Koza Altin and the trustees.
+Mr Ipek and Koza Ltd issued their claim form on 18 August 2016 seeking a declaration that the notices were ineffective, an injunction to restrain Koza Altin and the trustees from holding any meeting pursuant to the notices and from taking any steps to remove the current board of Koza Ltd, a declaration that the English courts do not recognise any authority of the trustees to cause Koza Altin to call any general meetings of Koza Ltd or to do or permit the doing of anything else as a shareholder of Koza Ltd and an injunction to restrain the trustees from holding themselves out as having any authority to act for or bind Koza Altin as a shareholder of Koza Ltd and from causing Koza Altin to do anything or permit the doing of anything as a shareholder of Koza Ltd.
+Koza Altin and the trustees filed an acknowledgement of service indicating their intention to contest jurisdiction and then issued an application to do that.
+At the same time, Koza Altin filed a Defence and Counterclaim to the English company law claim, impugning the validity and enforceability of article 26 and also impugning the validity and effectiveness of the board resolution of Koza Ltd pursuant to which the two A shares were issued.
+In turn, Mr Ipek and Koza Ltd issued an application to strike out the acknowledgment of service, Koza Altins Defence and Counterclaim and all other steps taken by Mishcon de Reya LLP purportedly on behalf of Koza Altin in the proceedings, on the basis that the authority of those who had caused Koza Altin to take these steps should not be recognised in this jurisdiction.
+The application of Koza Altin and the trustees to challenge jurisdiction was heard by Asplin J in December 2016.
+Their position was that (i) the English courts have no jurisdiction under article 24(2) of the Recast Regulation over the trustees in relation to any part of the claims; (ii) the English courts do have jurisdiction under that provision over Koza Altin in respect of the English company law claim, which relates to the affairs of Koza Ltd; and (iii) the English courts have no jurisdiction under that provision over Koza Altin in respect of the authority claim, which relates to the conduct of the business of Koza Altin.
+Asplin J dismissed the application by order made on 17 January 2017.
+It was common ground that the English company law claim fell within article 24(2) of the Recast Regulation so that the English courts had jurisdiction in relation to it and in the judges assessment the authority claim was inextricably linked with that claim, which she considered was the principal subject matter of the proceedings viewed as a whole.
+Koza Altin and the trustees appealed on the grounds that Asplin J had erred in holding that article 24(2) conferred jurisdiction on the English courts to determine the authority claim and had erred in holding that article 24(2) conferred jurisdiction on the English courts to determine any of the claims against the trustees.
+The Court of Appeal dismissed the appeal.
+Like Asplin J, it held that the authority claim is inextricably linked with the English company law claim and it held that article 24(2) required the court to form an overall evaluative judgment as to what the proceedings are principally concerned with, which in this case is a challenge to the ability of Koza Altin to act as a shareholder of Koza Ltd in relation to Koza Ltds internal affairs (see, in particular, paras 45 46 and 49 51).
+That was so even if certain parts of the relief sought, if viewed in isolation, appeared to go further than that, in that they related to the validity of decisions taken by the organs of Koza Altin.
+In the view of the Court of Appeal, therefore, by virtue of article 24(2) the English courts have jurisdiction in relation to the authority claim as well as in relation to the English company law claim.
+In addition, the Court of Appeal dismissed a distinct submission for the trustees that the English courts have no jurisdiction in relation to them under article 24(2), based on the fact that they are not necessary parties in the proceedings.
+Despite the court accepting that they are not necessary parties, it held that jurisdiction was established under article 24(2) in relation to the trustees because the subject matter of the proceedings involving them remained the same and the rationale of avoiding conflicting decisions in relation to the same subject matter applied, as did the rationale of ensuring that the proceedings are tried in the courts best placed to do so (paras 52 54).
+The trustees and Koza Altin now appeal with permission granted by this court.
+They submit that in holding that the English courts have jurisdiction under article 24(2) in relation to the authority claim, which is concerned with the validity of decisions of the organs of Koza Altin, a Turkish company, the Court of Appeal has given that provision an impermissibly wide interpretation.
+On proper construction of article 24(2), it is the courts of Turkey which have the relevant close connection with the authority claim and the English courts could not be regarded as having relevant (putatively exclusive) jurisdiction under that provision in relation to that claim.
+The issues on the appeal are (i) whether article 24(2) confers jurisdiction on the English courts to determine the authority claim as against Koza Altin and (ii) 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.
+Each side maintains that the proper interpretation of article 24(2) is acte clair in their favour, but if it is not then a reference to the Court of Justice of the European Union is sought.
+The Recast Regulation
+The Recast Regulation is intended to lay down common rules governing jurisdiction assumed by member states.
+Insofar as relevant for present purposes, the basic scheme is encapsulated as relevant for present purposes in recitals (13) (16) and (19): (13) There must be a connection between proceedings to which this Regulation applies and the territory of the member states.
+Accordingly, common rules of jurisdiction should, in principle, apply when the defendant is domiciled in a member state. (14) A defendant not domiciled in a member state should in general be subject to the national rules of jurisdiction applicable in the territory of the member state of the court seised.
+However, in order to ensure the protection of consumers and employees, to safeguard the jurisdiction of the courts of the member states in situations where they have exclusive jurisdiction and to respect the autonomy of the parties, certain rules of jurisdiction in this Regulation should apply regardless of the defendants domicile. (15) The rules of jurisdiction should be highly predictable and founded on the principle that jurisdiction is generally based on the defendants domicile.
+Jurisdiction should always be available on this ground save in a few well defined situations in which the subject matter of the dispute or the autonomy of the parties warrants a different connecting factor.
+The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction. (16) In addition to the defendants domicile, there should be alternative grounds of jurisdiction based on a close connection between the court and the action or in order to facilitate the sound administration of justice.
+The existence of a close connection should ensure legal certainty and avoid the possibility of the defendant being sued in a court of a member state which he could not reasonably have foreseen (19) The autonomy of the parties to a contract, other than an insurance, consumer or employment contract, where only limited autonomy to determine the courts having jurisdiction is allowed, should be respected subject to the exclusive grounds of jurisdiction laid down in this Regulation.
+The scheme for allocation of jurisdiction under the Recast Regulation, therefore, is that persons domiciled in a member state should generally be sued in that member state (article 4), but pursuant to article 5 may also be sued in the courts of another member state in certain cases specified in sections 2 to 7 of Chapter II of the Recast Regulation.
+Section 2 is entitled Special jurisdiction.
+Within it, article 7 sets out rules applicable in particular kinds of case, including contract, tort, unjust enrichment and certain other cases; and article 8 provides, among other things, that a person domiciled in a member state who is one of a number of related defendants may be sued in the courts of the place where any one of them is domiciled, provided the claims are closely connected.
+Section 3 deals with jurisdiction in matters relating to insurance; section 4 with jurisdiction over consumer contracts; and section 5 with jurisdiction over individual contracts of employment.
+Section 6 comprises article 24, dealing with cases of exclusive jurisdiction.
+Section 7, comprising articles 25 and 26, deals with prorogation of jurisdiction.
+I set out here the full text of article 24: The following courts of a member state shall have exclusive jurisdiction, regardless of the domicile of the parties: (1) in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the member state in which the property is situated.
+However, in proceedings which have as their object tenancies of immovable property concluded for temporary private use for a maximum period of six consecutive months, the courts of the member state in which the defendant is domiciled shall also have jurisdiction, provided that the tenant is a natural person and that the landlord and the tenant are domiciled in the same member state; (2) in proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or the validity of the decisions of their organs, the courts of the member state in which the company, legal person or association has its seat.
+In order to determine that seat, the court shall apply its rules of private international law; (3) in proceedings which have as their object the validity of entries in public registers, the courts of the member state in which the register is kept; in proceedings concerned with the registration or (4) validity of patents, trademarks, designs, or other similar rights required to be deposited or registered, irrespective of whether the issue is raised by way of an action or as a defence, the courts of the member state in which the deposit or registration has been applied for, has taken place or is under the terms of an instrument of the Union or an international convention deemed to have taken place.
+Without prejudice to the jurisdiction of the European Patent Office under the Convention on the Grant of European Patents, signed at Munich on 5 October 1973, the courts of each member state shall have exclusive jurisdiction in proceedings concerned with the registration or validity of any European patent granted for that member state; (5) in proceedings concerned with the enforcement of judgments, the courts of the member state in which the judgment has been or is to be enforced.
+Article 25 provides in material part as follows: If the parties, regardless of their domicile, have agreed 1. that a court or the courts of a member state are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that member state.
+Such jurisdiction shall be exclusive unless the parties have agreed otherwise. 3.
+The court or courts of a member state on which a trust instrument has conferred jurisdiction shall have exclusive jurisdiction in any proceedings brought against a settlor, trustee or beneficiary, if relations between those persons or their rights or obligations under the trust are involved. 4.
+Agreements or provisions of a trust instrument conferring jurisdiction shall have no legal force if they are contrary to articles 15, 19 or 23, or if the courts whose jurisdiction they purport to exclude have exclusive jurisdiction by virtue of article 24. 1.
+Apart from jurisdiction derived from other provisions of this Regulation, a court of a member state before which a defendant enters an appearance shall have jurisdiction.
+This rule shall not apply where appearance was entered to contest the jurisdiction, or where another court has exclusive jurisdiction by virtue of article 24.
+Article 26(1) provides:
+These provisions indicate the priority given under the scheme of the Recast Regulation to the jurisdiction of the courts of a member state which have exclusive jurisdiction under article 24.
+The cases of exclusive jurisdiction within article 24 comprise situations where reasons exist to recognise an especially strong and fixed connection between the subject matter of a dispute and the courts of a particular member state.
+For the cases falling within article 24, the principle of exclusive jurisdiction cuts across and takes priority over the other principles underlying the Recast Regulation, including the principle of jurisdiction for the courts of the member state where the defendant is domiciled and the principle of respect for party autonomy referred to in recital (19) and reflected in various provisions of the Regulation.
+The priority given to the jurisdiction of a member state within article 24 is underlined by departures from other general rules set out in the Recast Regulation.
+In particular, in section 8 of Chapter II, entitled Examination as to jurisdiction and admissibility, article 27 provides for an exception to the usual rule in section 9 of Chapter II that it is the courts in a member state which are first seised with a matter which shall have jurisdiction in relation to it, so that the courts of other member states should decline jurisdiction accordingly.
+Article 27 provides: Where a court of a member state is seised of a claim which is principally concerned with a matter over which the courts of another member state have exclusive jurisdiction by virtue of article 24, it shall declare of its own motion that it has no jurisdiction.
+Also, in Chapter III, in section 3 (entitled Refusal of recognition and enforcement), article 45(1)(e) provides that the recognition of a judgment shall be refused if the judgment conflicts with Section 6 of Chapter II (ie with the provision for exclusive jurisdiction contained in article 24) and article 46 states that enforcement of a judgment shall be refused in cases falling within article 45.
+Discussion Issue (i): claim
+The application of article 24(2) in relation to the authority
+Since article 24(2) of the Recast Regulation is a provision which creates exclusive jurisdiction for the courts of a member state in the circumstances specified, its proper interpretation can be tested on the hypothesis that Turkey stands in the position of a member state.
+If Koza Altin were a company which had its seat in a member state, say Greece, article 24(2) would apply to allocate exclusive jurisdiction in relation to the authority claim either to Greece or to England.
+They could not both have exclusive jurisdiction under the Recast Regulation, since that would be contrary to the very idea of the jurisdiction being exclusive.
+The interpretation of article 24(2) does not change in the present case just because the other state in question (Turkey) happens not to be a member state.
+The position in relation to article 24(2) is to be contrasted with that in relation to the general rule of jurisdiction in article 4 and the provisions contained in section 2 of Chapter II of the Recast Regulation.
+Under article 4 and those provisions, it is quite possible that the courts of two or more member states might have jurisdiction in relation to the same claim.
+This causes no difficulty under the scheme of the Recast Regulation.
+In all such cases it is the priority rules in section 9 of Chapter II which determine the jurisdiction where the claim should proceed, which generally depends on which court is first seised.
+But as noted above, those rules are disapplied where a claim falls within the exclusive jurisdiction provision in article 24.
+Accordingly, it is clear from the scheme of the Regulation that the interpretation and application of that provision cannot depend on the type of evaluative judgment in relation to which different courts could reasonably take different views.
+In principle, there should be only one correct application of article 24 in relation to a given claim.
+This tells strongly against the broad evaluative approach to the interpretation and application of article 24(2) adopted by the courts below.
+As stated in recital (15) of the Recast Regulation, the objective of the Regulation is to set out rules governing the allocation of jurisdiction which are highly predictable.
+The desirability of having clear rules for allocation of jurisdiction is obvious, since parties who wish to bring claims and to defend them need to have a clear idea of which courts have jurisdiction so that they can decide how to proceed effectively and so as to minimise costs.
+Also, rules which are highly predictable in their effects serve the purpose of enabling different courts to determine with a minimum of effort whether they have jurisdiction in respect of any given claim.
+As is clear from the recitals and scheme of the Recast Regulation, a further objective of the regime is to avoid inconsistent judgments on the same issue being produced by the courts of different member states.
+The case law of the Court of Justice of the European Union (the Court of Justice, formerly called the European Court of Justice) regarding the interpretation of article 24 has reached an advanced stage.
+In my view it shows clearly that the interpretation of article 24(2) adopted by the courts below in these proceedings cannot be sustained.
+An important early judgment was given in Hassett v South Eastern Health Board (Case C 372/07) [2008] ECR I 7403 regarding article 22(2) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, the predecessor of article 24(2) in the Recast Regulation.
+In proceedings in Ireland relating to a medical negligence claim against the Health Board, two doctors who had been involved in the incident in question were joined in a claim for contribution brought by the Health Board.
+The doctors in turn sought an indemnity or contribution from the Medical Defence Union in England (the MDU), of which they were members, to which they claimed they had an entitlement under the MDUs articles of association.
+The MDUs board decided to reject their claim, so the doctors sought to join the MDU in the Irish proceedings to claim in those proceedings the indemnity or contribution to which they maintained they were entitled.
+The MDU resisted this on the basis that the doctors claim concerned the validity of the boards decision and so fell within article 22(2), with the result that the English courts had exclusive jurisdiction in relation to that claim.
+This issue was referred to the Court of Justice, which disagreed with the MDU.
+The court held that article 22(2) had to be interpreted strictly (that is to say, narrowly), since it was an exception to the general rule of jurisdiction under the Regulation based on domicile, and that it should not be given an interpretation broader than is required by [its] objective (paras 18 19); accordingly, the provision must be interpreted as covering only disputes in which a party is challenging the validity of a decision of an organ of a company under the company law applicable or under the provisions governing the functioning of its organs, as laid down in its Articles of Association (para 26).
+Since the doctors were not challenging the fact that the MDUs board was empowered under the articles to take the decision it did, but were challenging the manner in which that power was exercised, the dispute between the doctors and the MDU did not fall within article 22(2) (paras 27 30).
+The court did not approach the application of article 22(2) by making an evaluative judgment about how the doctors claim related to the proceedings in Ireland, but instead focused its analysis on the specific nature of the claim against the particular defendant, the MDU.
+In view of its strict approach to the interpretation of article 22(2), it held that it could not be said that, in order for that provision to apply, it is sufficient that a legal action involve merely some link with a decision adopted by an organ of a company (paras 22 25).
+The Court of Justice adopted the same approach to the interpretation and application of article 22(2) of Regulation No 44/2001 in Berliner Verkehrsbetriebe (BVG), Anstalt des ffentlichen Rechts v JP Morgan Chase Bank NA (Case C 144/10) EU:C:2011:300; [2011] 1 WLR 2087 (the BVG case).
+JP Morgan and BVG, a local authority in Germany, entered into an interest rate swap contract which contained an English exclusive jurisdiction clause.
+JP Morgan brought proceedings in England claiming payments which it maintained were due under the contract.
+BVG argued that the swap contract was not valid because it had acted ultra vires in entering into it so that the decisions of its organs approving the making of the contract were null and void, with the result that the German courts had exclusive jurisdiction by virtue of article 22(2) of the Regulation.
+BVG also commenced proceedings in Germany for a declaration that the contract was void because the decision to enter into it had been ultra vires.
+The German court referred the question of jurisdiction to the Court of Justice.
+The Court of Justice held that the German courts did not have exclusive jurisdiction under article 22(2).
+The court followed its judgment in the Hassett case to the effect that article 22(2) had to be given a strict interpretation (paras 30 32).
+It emphasised that a strict interpretation of article 22(2) which did not go beyond what was required by the objectives pursued by it was particularly necessary precisely because article 22(2) is a rule of exclusive jurisdiction which cuts across the usual expectation that parties to a contract have autonomy to choose their forum (para 32).
+It further observed that one of the aims of article 22(2) was to confer exclusive jurisdiction on the courts of a member state in specific circumstances where, having regard to the matter at issue, those courts are best placed to adjudicate upon the disputes falling to them, because there is a particularly close link between those disputes and the member state (para 36).
+Having identified a divergence between different language versions of article 22(2), the court held that this was to be resolved by interpreting that provision as covering only proceedings whose principal subject matter comprises the validity of the constitution, the nullity or the dissolution of the company, legal person or association or the validity of the decisions of its organs (para 44).
+It also held that in a dispute of a contractual nature, questions relating to the contracts validity, interpretation or enforceability are at the heart of the dispute and form its subject matter, with the result that [a]ny question concerning the validity of the decision to conclude the contract, taken previously by the organs of one of the companies party to it, must be considered ancillary (para 38 and also paras 39 42).
+In other words, in relation to a claim based on a contract and brought in England pursuant to an exclusive jurisdiction clause in which an ultra vires defence was advanced, which was inextricably bound up with and hence ancillary to the underlying claim, a narrow interpretation of article 22(2) meant that the ultra vires defence did not have the effect of pulling the whole proceedings or any part thereof into the exclusive jurisdiction of the German courts.
+In that context it could not be said that the principal subject matter of the proceedings comprised the validity of the decisions of [BVGs] organs as would be required if article 22(2) was to have any application (para 44 of the judgment).
+This point deserves emphasis, in light of the very different way in which the Court of Appeal in the present proceedings sought to draw guidance from the BVG case.
+Relying on the judgment in that case, the Court of Appeal held that article 24(2) of the Recast Regulation required the court to form an overall evaluative judgment as to what the proceedings are principally concerned with (para 46).
+But this approach had the effect of expanding the application of article 24(2) (ex article 22(2) of Regulation No 44/2001), contrary to the guidance in the Hassett case and the BVG case, rather than narrowing its application, as the Court of Justice had been at pains to do in its judgments in those cases.
+According to the Court of Appeal, article 24(2) of the Recast Regulation is to be read as having the effect of allowing a party which is able to bring one claim within that article (the English company law claim) to add on another claim (the authority claim) which is conceptually distinct and is not inextricably bound up with the former claim, so that the latter claim is to be taken to fall within the scope of article 24(2) as regards the jurisdiction of the English courts as well.
+In my view, Mr Crow QC for Koza Altin and the trustees was right to criticise this step in the Court of Appeals analysis as an illegitimate reversal of the approach indicated in the judgment of the Court of Justice in the BVG case.
+Putting it another way, an evaluative assessment of proceedings relating to a specific claim, taken as a whole, may show that a particular aspect of the claim which involves an assessment of the validity of the decisions of a companys organs is so bound up with other features of the claim that it cannot be said that this is the principal subject matter of those proceedings, as would be required to bring the proceedings within the scope of article 24(2).
+This was the effect of the ruling of the Court of Justice in the BVG case.
+It does not follow from this that one can say the reverse, namely that where there are two distinct claims one, taken by itself, falling within article 24(2) as regards the exclusive jurisdiction of the English courts and the other, taken by itself, not falling within article 24(2) as regards such jurisdiction it is legitimate to maintain that by virtue of an overall evaluative judgment in relation to both claims taken together the second claim should be found also to fall within article 24(2) so that the English courts have exclusive jurisdiction in relation to it.
+In this sort of situation, it is the guidance in paras 22 25 of the Hassett judgment which is relevant, to the effect that a mere link between a claim which engages article 24(2) and one which does not is not sufficient to bring the latter within the scope of that provision.
+In the present case the English company law claim and the authority claim can be said to be connected in a certain sense, but they are distinct claims which are not inextricably bound up together.
+Koza Altin is a shareholder in Koza Ltd and may act as such.
+The issue, so far as the authority claim is concerned, is whether it has done so validly, acting by relevant organs authorised according to the law of its seat.
+The English company law claim can be brought and made good on its own terms without any need to get into the merits of the authority claim.
+The authority claim likewise can be brought and made good on its own terms without any need to get into the merits of the English company law claim.
+Assessing the authority claim as a distinct set of proceedings, clearly their principal subject matter does not comprise the validity of the decisions of the organs of a company which has its seat in England.
+In fact, it is clear that their principal subject matter comprises the validity of the decisions of the organs of a company which has its seat in another country, so that if Koza Altin had had its seat in Greece (as a hypothesis to test the validity of the respondents submissions) then, far from allocating exclusive jurisdiction to the English courts, article 24(2) of the Recast Regulation would have allocated exclusive jurisdiction to the Greek courts.
+It would not be tenable to suggest that the English courts had exclusive jurisdiction under article 24(2) in such a case.
+This analysis fits with and is supported by the scheme and underlying objectives of the Recast Regulation.
+First, in such a hypothetical case, Koza Altin might have had subsidiaries in several EU member states all of which might potentially have been affected by actions taken by the trustees on its behalf as occurred with the decision to send the notices concerning Koza Ltd in the present case.
+The relevant issues regarding the validity of the decisions of the trustees acting on behalf, and as an organ, of Koza Altin would fall to be assessed in the light of circumstances in the place of its seat and would be governed by the law of that place (in the hypothetical example, Greece), which would indicate clearly that it should be sued there.
+Secondly, requiring that Koza Altin and the trustees should be sued in the jurisdiction where it had its seat would ensure that one single authoritative judgment from the courts there would resolve the relevant disputes affecting subsidiary companies in all the other member states without any risk of inconsistent judgments based on evidence of Greek law (in the hypothetical example) being produced by the courts of each of those other member states.
+These two points reflect the primary reasons for the introduction of what is now article 24(2) of the Recast Regulation in the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as set out in the report dated 27 September 1968 on that Convention by Mr P Jenard.
+Mr Jenard explained the reasons for providing for exclusive jurisdiction in the form of what is now article 24(2) as follows: It is important, in the interests of legal certainty, to avoid conflicting judgments being given as regards the existence of a company or association or as regards the validity of the decisions of its organs.
+For this reason, it is obviously preferable that all proceedings should take place in the courts of the state in which the company or association has its seat.
+It is in that state that information about the company or
+association will have been notified and made public
+These reasons underlying what is now article 24(2) of the Recast Regulation have been treated by the Court of Justice as significant factors relevant to the interpretation of that provision.
+The Court of Justice emphasised the importance of arriving at an interpretation of the provision so as to avoid the risk of inconsistent decisions in its judgment in the Hassett case at para 20 and again in its judgment in the BVG case at para 40.
+In the Hassett judgment at para 21 the court drew on Mr Jenards report to explain that it is the courts of the member state in which the company has its seat which are regarded as best placed to deal with disputes regarding the validity of decisions of its organs, inter alia because it is in that state that information about the company will have been notified and made public, hence [e]xclusive jurisdiction is attributed to those courts in the interests of the sound administration of justice.
+The interpretation of article 24(2) above is further supported by the judgment of the Court of Justice in Schmidt v Schmidt (Case C 417/15) EU:C:2016:881; [2017] I L Pr 6.
+That case concerned the ground of exclusive jurisdiction set out in article 24(1) of the Recast Regulation, as regards rights in rem in immovable property.
+In reliance on article 24(1) the claimant brought proceedings in Austria seeking rescission of a gift of land located there and, in consequence, an order for rectification of the Austrian land register.
+The Court of Justice held that whilst the latter aspect of the proceedings fell within article 24(1), the rescission claim did not.
+The court rejected the claimants contention that since there was plainly a link between the two claims, the whole proceedings should be regarded as falling within article 24(1) (paras 33 to 43).
+Contrary to that contention, article 24(1) had to be read narrowly and with a precise focus on each distinct claim in the proceedings to which it was said to apply.
+This was in line with the opinion of the Advocate General, in particular at paras 47 to 49.
+At para 48 of her opinion, Advocate General Kokott said that as article 24 is an exception to the general principles underlying the Recast Regulation, the provision is to be interpreted narrowly, and the concept of proceedings restricted to the claim that specifically has as its object a right in rem.
+The approach of the Advocate General and of the court is not compatible with the overall classification approach to the application of article 24(2) adopted by the Court of Appeal in the present case, according to which it concluded that the provision was applicable to the authority claim by reason of its being linked with the English company law claim.
+The Court of Justice has recently reviewed the position regarding the interpretation and application of article 22(2) of Regulation No 44/2001, the predecessor of article 24(2) of the Recast Regulation, in EON Czech Holding AG v Ddouch (Case C 560/16) EU:C:2018:167; [2018] 4 WLR 94.
+The case concerned a resolution by the general meeting of a Czech company to transfer all the securities in the company, including minority shareholdings, to its principal shareholder, the defendant, a German company.
+The minority shareholders brought proceedings in the Czech courts seeking to review the reasonableness of the consideration for their shares set by that resolution.
+Under Czech law, a ruling that the consideration was unreasonable would not result in the resolution being declared invalid (but presumably could result in an order that additional consideration should be paid).
+The defendant raised a jurisdictional objection in those proceedings, maintaining that by reason of its seat the German courts alone had jurisdiction.
+The Czech Supreme Court referred to the Court of Justice the question whether the Czech courts had exclusive jurisdiction in relation to the dispute by virtue of article 22(2) of Regulation No 44/2001.
+The Court of Justice answered that question in the affirmative.
+It reiterated and emphasised the key points which had emerged from its previous jurisprudence.
+The relevant passage merits being set out in full: 26.
+As regards the general scheme and context of Regulation No 44/2001, it should be recalled that the jurisdiction provided for in article 2 of that Regulation, namely that the courts of the member state in which the defendant is domiciled are to have jurisdiction, constitutes the general rule.
+It is only by way of derogation from that general rule that the Regulation provides for special and exclusive rules of jurisdiction for cases, which are exhaustively listed, in which the defendant may or must, depending on the case, be sued in the courts of another member state: the Reisch Montage case, para 22 and Berliner Verkehrsbetriebe (BVG), Anstalt des ffentlichen Rechts v JP Morgan Chase Bank NA (Case C 144/10) EU:C:2011:300; [2011] 1 WLR 2087; [2011] ECR I 3961, para 30. 27.
+Those rules of special and exclusive jurisdiction must accordingly be interpreted strictly.
+As the provisions of article 22 of Regulation No 44/2001 introduce an exception to the general rule governing the attribution of jurisdiction, they must not be given an interpretation broader than that which is required by their objective: Hassetts case, paras 18 and 19 and the BVG case, para 30. 28.
+As regards the objectives and the purpose of Regulation No 44/2001, it should be recalled that, as is apparent from recitals (2) and (11) thereof [which correspond with recitals (4) and (15) of the Recast Regulation], that Regulation seeks to unify the rules on conflict of jurisdiction in civil and commercial matters by way of rules of jurisdiction which are highly predictable.
+That Regulation thus pursues an objective of legal certainty which consists in strengthening the legal protection of persons established in the European Union, by enabling the applicant easily to identify the court in which he may sue and the defendant reasonably to foresee before which court he may be sued: Falco Privatstiftung v Weller Lindhorst (Case C 533/07) EU:C:2009:257; [2010] Bus LR 210; [2009] ECR I 3327, paras 21 22, Taser International Inc v SC Gate 4 Business SRL (Case C 175/15) EU:C:2016:176; [2016] QB 887, para 32 and Granarolo SpA v Ambrosi Emmi France SA (Case C 196/15) EU:C:2016:559; [2017] CEC 473, para 16. 29.
+Furthermore, as is apparent from recital (12) of that Regulation [which corresponds with recital (16) of the Recast Regulation], the rules of jurisdiction derogating from the general rule of jurisdiction of the courts of the member state in which the defendant is domiciled supplement the general rule where there is a close link between the court designated by those rules and the action or in order to facilitate the sound administration of justice. 30.
+In particular, the rules of exclusive jurisdiction laid down in article 22 of Regulation No 44/2001 seek to ensure that jurisdiction rests with courts closely linked to the proceedings in fact and law (see, with regard to article 16 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1972 L299, p 32), the provisions of which are essentially identical to those of article 22 of Regulation No 44/2001, Gesellschaft fur Antriebstechnik mbH & Co KG (GAT) v Lamellen und Kupplungsbau Beteiligungs KG (Case C 4/03) EU:C:2006:457; [2006] ECR I 6509; [2007] ILPr 34, para 21), in other words, to confer exclusive jurisdiction on the courts of a member state in specific circumstances where, having regard to the matter at issue, those courts are best placed to adjudicate upon the disputes falling to them by reason of a particularly close link between those disputes and that member state: the BVG case, para 36. 31.
+Thus, the essential objective pursued by article 22(2) of Regulation No 44/2001 is that of centralising jurisdiction in order to avoid conflicting judgments being given as regards the existence of a company or as regards the validity of the decisions of its organs: Hassetts case [2008] ECR I 7403, para 20. 32.
+The courts of the member state in which the company has its seat appear to be those best placed to deal with such disputes, inter alia because it is in that state that information about the company will have been notified and made public.
+Exclusive jurisdiction is thus attributed to those courts in the interests of the sound administration of justice: Hassetts case, para 21. lidosta Rga VAS 33.
+However, the court has held that it cannot be inferred from this that, in order for article 22(2) of Regulation No 44/2001 to apply, it is sufficient that a legal action involve some link with a decision adopted by an organ of a company (Hassetts case, para 22), and that the scope of that provision covers only disputes in which a party is challenging the validity of a decision of an organ of a company under the company law applicable or the provisions of its article of association governing the functioning of its organs: Hassetts case, para 26 and flyLAL Lithuanian Airlines AS (in liquidation) v Starptautisk (Case C 302/13) EU:C:2014:2319; [2014] 5 CMLR 1277, para 40. 34.
+In the present case, while it is true that, under Czech law, proceedings such as those at issue in the main proceedings may not lead formally to a decision which has the effect of invalidating a resolution of the general assembly of a company concerning the compulsory transfer of the minority shareholders shares in that company to the majority shareholder, the fact none the less remains that, in accordance with the requirements of the autonomous interpretation and uniform application of the provisions of Regulation No 44/2001, the scope of article 22(2) thereof cannot depend on the choices made in national law by member states or vary depending on them. 35.
+On the one hand, the origin of those proceedings lies in a challenge to the amount of the consideration relating to such a transfer and, on the other, their purpose is to secure a review of the reasonableness of that amount. 36.
+It follows that, having regard to article 22(2) of Regulation No 44/2001, legal proceedings such as those at issue in the main proceedings concern the review of the partial validity of a decision of an organ of a company and that such proceedings are, as a result, capable of coming within the scope of that provision, as envisaged by its wording. 37.
+Thus, in those circumstances, a court hearing such an application for review must examine the validity of a decision of an organ of a company in so far as that decision concerns the determination of the amount of the consideration, decide whether that amount is reasonable and, where necessary, annul that decision in that respect and determine a different amount of consideration. 38.
+Furthermore, an interpretation of article 22(2) of Regulation No 44/2001 according to which that provision applies to proceedings such as those at issue in the main proceedings is consistent with the essential objective pursued by that provision and does not have the effect of extending its scope beyond what is required by that objective.
+In that regard, the existence of a close link between the 39. courts of the member state in which [the Czech company] is established, in the present case the Czech courts, and the dispute in the main proceedings is clear. 40.
+In addition to the fact that [the Czech company] is a company incorporated under Czech law, it is apparent from the file submitted to the court that the resolution of the general meeting that determined the amount of the consideration forming the subject of the main proceedings and the acts and formalities relating to it were carried out in accordance with Czech law and in the Czech language. 41.
+Likewise, it is not disputed that the court with jurisdiction must apply Czech substantive law to the dispute in the main proceedings.
+Consequently, bearing in mind the close link between the dispute in the main proceedings and the Czech courts, the latter are best placed to hear that dispute relating to the review of the partial validity of that resolution and the attribution, pursuant to article 22(2) of Regulation No 44/2001, of exclusive jurisdiction to those courts is such as to facilitate the sound administration of justice.
+The attribution of that jurisdiction to the Czech courts is also consistent with the objectives of predictability of the rules of jurisdiction and legal certainty pursued by Regulation No 44/2001, since, as Advocate General Wathelet observed in point 35 of his opinion, the shareholders in a company, especially the principal shareholder, must expect that the courts of the member state in which that company is established will be the courts having jurisdiction to decide any internal dispute within that company relating to the review of the partial validity of a decision taken by an organ of a company. 42.
+This reasoning again is not compatible with the decisions of the courts below in the present case.
+If one tests the application of article 24(2) of the Recast Regulation by reference to the hypothetical Greek case referred to above, it is clear by reference to the factors identified by the Court of Justice that it would be the courts in Greece which had exclusive jurisdiction under that provision in relation to the authority claim, not the courts in England.
+The non applicability of article 24(2) according to its proper interpretation does not alter when one asks whether the English courts have jurisdiction under that provision in the present case.
+Article 24(2) does not apply in the present case by reason of the strict (ie narrow) interpretation to be given to that provision (para 27 of the EON judgment, above).
+It is not sufficient that there is a link between the authority claim and the English company law claim (para 33 of the EON judgment, above).
+There is an absence of any particularly close link between the authority claim and the English courts as would be required to bring the case within article 24(2) (para 30 of the EON judgment, above); on the contrary, the relevant particularly close link as regards the authority claim is with the courts in Turkey. 43.
+In my view, the EU law regarding the interpretation and application of article 24(2) of the Recast Regulation, as reiterated in the EON judgment, is clear.
+It is acte clair that this provision does not cover the authority claim in the present proceedings.
+This means that the English courts cannot assert jurisdiction over Koza Altin and the trustees in relation to that claim in the present proceedings on the basis of that provision, and their appeal in that regard should be allowed.
+Before leaving this part of the case, however, it should be pointed out that there is an important consequence which flows from the fact that Turkey is not a member state of the EU.
+It means that the courts in Turkey do not enjoy exclusive jurisdiction in respect of the authority claim by virtue of the Recast Regulation.
+Therefore, even though the authority claim does not fall within the exclusive jurisdiction provision in article 24(2) as regards the courts in England, that does not prevent those courts from assuming jurisdiction in relation to the authority claim on some other basis, if one exists under the general English regime in the Civil Procedure Rules governing service of proceedings on persons outside the jurisdiction.
+It is not necessary to examine this possibility further, because in the present case it is solely on the basis of article 24(2) that the English courts have assumed jurisdiction over Koza Altin and the trustees in these proceedings in relation to the authority claim.
+Issue (ii): The application of article 24(2) in relation to the trustees
+Since on its proper interpretation article 24(2) of the Recast Regulation does not cover the authority claim, the English courts have no jurisdiction in relation to the trustees under that provision with respect to that claim.
+The proceedings against the trustees are principally concerned with the authority claim.
+It cannot be said that the fact that the English courts have jurisdiction under article 24(2) in relation to the English company law claim, as it concerns Koza Ltd, means that such jurisdiction extends to cover the trustees, who are not necessary parties to that claim and are more removed from it than they are in relation to the authority claim.
+Once it is appreciated that the application of article 24(2) to the authority claim and its application to the English company law claim are to be considered separately, a strict interpretation of article 24(2) as explained by the Court of Justice leads to the conclusion that it does not cover the trustees in relation to the latter claim.
+Further, the rationale underlying article 24(2) of avoiding conflicting decisions in relation to the relevant subject matter of each respective claim and the rationale that each respective claim should be tried in the courts best placed to do so both support that view.
+Conclusion
+I would allow the appeals by Koza Altin and the trustees and would accept their case that (i) the English courts have no jurisdiction under article 24(2) of the Recast Regulation over the trustees in relation to any part of the claims; (ii) the English courts have jurisdiction under that provision over Koza Altin in respect of the English company law claim, which is principally concerned with the affairs of Koza Ltd; and (iii) the English courts have no jurisdiction under that provision over Koza Altin in respect of the authority claim, which is principally concerned with the conduct of the business of Koza Altin.
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+The question that arises in this appeal is whether a court order must always be obtained before clinically assisted nutrition and hydration, which is keeping alive a person with a prolonged disorder of consciousness, can be withdrawn, or whether, in some circumstances, this can occur without court involvement.
+Terminology
+The term prolonged disorder of consciousness encompasses both a permanent vegetative state (sometimes referred to as a persistent vegetative state, and often shortened to PVS) and a minimally conscious state (or MCS).
+Prolonged disorder of consciousness is commonly shortened to PDOC and that practice is followed in this judgment.
+Clinically assisted nutrition and hydration is now referred to as CANH, although it has been variously described in the past.
+The facts
+Mr Y was an active man in his fifties when, in June 2017, he suffered a cardiac arrest which resulted in severe cerebral hypoxia and extensive brain damage.
+He never regained consciousness following the cardiac arrest.
+He required CANH, provided by means of a percutaneous endoscopic gastrostomy, to keep him alive.
+The month after his cardiac arrest, Mr Y was admitted to the regional hyper acute rehabilitation unit under the control of the first respondent NHS Trust so that his level of awareness could be assessed.
+In late September, his treating physician concluded that he was suffering from PDOC and that even if he were to regain consciousness, he would have profound cognitive and physical disability, remaining dependent on others to care for him for the rest of his life.
+A second opinion was obtained in October, from a consultant and professor in Neurological Rehabilitation, who considered that Mr Y was in a vegetative state and that there was no prospect of improvement.
+Mrs Y and their children believed that he would not wish to be kept alive given the doctors views about his prognosis.
+The clinical team and the family agreed that it would be in Mr Ys best interests for CANH to be withdrawn, which would result in his death within two to three weeks.
+On 1 November 2017, the NHS Trust issued an application in the Queens Bench Division of the High Court for a declaration (1) that it was not mandatory to seek the courts approval for the withdrawal of CANH from a patient with PDOC when the clinical team and the patients family were agreed that it was not in the patients best interests that he continue to receive that treatment, and (2) that no civil or criminal liability would result if CANH were to be withdrawn.
+At a directions hearing on 3 November, Fraser J invited the Official Solicitor to act as Mr Ys litigation friend in the proceedings but, rather than adjourning the case for a hearing in the Court of Protection as the Official Solicitor sought, he ordered that the final hearing be expedited and listed before OFarrell J in the Queens Bench Division on 10 November.
+On 10 November, OFarrell J [2017] EWHC 2866 (QB) refused the Official Solicitors renewed application for the case to be transferred to the Court of Protection.
+She considered that it would have been appropriate to transfer the case if the court were being asked to determine whether the withdrawal of treatment was in Mr Ys best interests, but that, in fact, the issue she had to determine was a purely legal issue.
+She concluded that it was not established that there was any common law principle that all cases concerning the withdrawal of CANH from a person who lacks capacity had to be sanctioned by the court.
+In her view, at para 52, where the clinicians have followed the Mental Capacity Act and good medical practice, there is no dispute with the family of the person who lacks capacity or others interested in his welfare, and no other doubts or concerns have been identified, there is no requirement to bring the matter before the court.
+Such was the situation in Mr Ys case, she considered, and accordingly she granted the following declaration: It is not mandatory to bring before the court the withdrawal of CANH from Mr Y who has a prolonged disorder of consciousness in circumstances where the clinical team and Mr Ys family are agreed that it is not in his best interests that he continues to receive that treatment.
+The judge granted the Official Solicitor permission to appeal and certified the case, pursuant to section 12 of the Administration of Justice Act 1969, as appropriate for an appeal directly to the Supreme Court.
+In case the result of the appeal was that proceedings should be brought in the Court of Protection, the judge gave directions so that any such proceedings could progress without delay.
+So it was that the Official Solicitor obtained a further expert report, from a different neuro rehabilitation consultant.
+However, although CANH had been continued pending the appeal, on 22 December 2017 Mr Y died, having developed acute respiratory sepsis.
+The expert instructed by the Official Solicitor could only base his report upon documentation, including Mr Ys medical records.
+In the report, he referred to the difficulty in diagnosing vegetative and minimally conscious states, and gave his opinion that, had Mr Y survived, further assessments, over a longer period of time, would have been required in order to reach a reliable conclusion that he was in a permanent vegetative state.
+Notwithstanding that, in view of Mr Ys death, the proceedings could no longer serve any purpose for him and his family, this court determined that the appeal should go ahead, because of the general importance of the issues raised by the case.
+Accordingly, the court has received full argument from Mr Gordon QC and Ms Paterson for the Official Solicitor, and Mr Sachdeva QC and Ms Dobson for the first two respondents (the NHS Trust which manages the regional hyper acute rehabilitation unit at which Mr Y was a patient until he was discharged to a nursing home and the Clinical Commissioning Group which funded the nursing home).
+Written submissions were permitted from the four intervenors.
+Mrs Y understandably felt unable to participate in the proceedings at what is an exceptionally sad and difficult time for her and her family.
+The opposing arguments in brief summary
+I will look at the Official Solicitors case in detail later, but it may help to introduce the issues now by means of the briefest of summaries.
+The Official Solicitor submits that, in every case, court approval must be sought before CANH can be withdrawn from a person with PDOC, thus ensuring that the patients vulnerable position is properly safeguarded by representation through the Official Solicitor, who can obtain independent expert medical reports about his condition and prognosis, and make submissions to the court on his behalf if appropriate.
+The Official Solicitor derives this requirement essentially from the common law and/or the European Convention on Human Rights (ECHR), in particular article 2 and article 6.
+In his submission, his position finds support in the Mental Capacity Act Code of Practice, issued on 23 April 2007 pursuant to section 42(1) of the Mental Capacity Act 2005 (MCA 2005).
+He submits that it is irrelevant that neither the MCA 2005 nor the Court of Protection Rules specifically impose the requirement for which he contends.
+The first and second respondents disagree, submitting that neither the common law nor the ECHR imposes a universal requirement to obtain court approval prior to the withdrawal of CANH.
+The case law preceding the MCA 2005
+The MCA 2005 was a watershed in the law relating to people who lack capacity.
+Before the Act, questions relating to the management of the property and affairs of adults who did not have capacity to make their own decisions, were dealt with in the old style Court of Protection, and questions relating to the care and welfare of such adults were resolved under the inherent jurisdiction of the High Court.
+The MCA 2005 established a new regime with, amongst other things, a new Court of Protection which has jurisdiction in relation to both property matters and issues relating to personal care.
+Nevertheless, an examination of the common law in relation to the treatment of patients such as Mr Y must commence with the pre MCA 2005 cases, and I turn first to two centrally important House of Lords decisions, In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 and Airedale NHS Trust v Bland [1993] AC 789.
+In In re F (Mental Patient: Sterilisation), the House of Lords considered whether the court had jurisdiction to grant a declaration that it would not be unlawful for a sterilisation operation to be carried out on a woman who, because of mental incapacity, was unable to consent to the operation herself.
+Although not concerned with precisely the sort of life and death decision that is involved in the present litigation, the decision is relevant because their Lordships were required to determine a sensitive and difficult question relating to medical treatment of a mentally incapacitated adult.
+They determined that the court could, under its inherent jurisdiction, make a declaration that the proposed operation was in the patients best interests and therefore lawful.
+They also held that where the procedure was intended to prevent pregnancy rather than for the purpose of treating a disease, although not necessary to establish the lawfulness of the operation, it was highly desirable, as a matter of good practice, that a declaration be obtained before the operation took place.
+The starting point for the reasoning was the established common law position that a doctor cannot lawfully operate on adult patients of sound mind, or give them any other treatment involving the application of physical force without their consent, and if he were to do so, he would commit the tort of trespass to the person (p 55), but that, in the case of a patient who lacked the capacity to consent to treatment, a doctor could lawfully operate or give other treatment provided that it was in the best interests of the patient.
+There was a range of views as to whether, with an operation such as the proposed sterilisation operation, it was desirable/necessary to obtain a declaration from the court that the procedure was in the patients best interests.
+All were in favour of a declaration being obtained but, for the most part, put the matter on the basis of good practice, rather than finding it to be a legal requirement that such a declaration first be obtained.
+There was fairly general agreement with the approach of Lord Brandon of Oakbrook.
+At p 56, he identified six special features of the particular operation which were influential in his view that, whilst the lawfulness of the treatment did not depend upon the courts approval and it was not therefore strictly necessary as a matter of law to seek it, the involvement of the court was highly desirable as a matter of good practice.
+The six features were: first, the operation will in most cases be irreversible; secondly, by reason of the general irreversibility of the operation, the almost certain result of it will be to deprive the woman concerned of what is widely, and as I think rightly, regarded as one of the fundamental rights of a woman, namely, the right to bear children; thirdly, the deprivation of that right gives rise to moral and emotional considerations to which many people attach great importance; fourthly, if the question whether the operation is in the best interests of the woman is left to be decided without the involvement of the court, there may be a greater risk of it being decided wrongly, or at least of it being thought to have been decided wrongly; fifthly, if there is no involvement of the court, there is a risk of the operation being carried out for improper reasons or with improper motives; and, sixthly, involvement of the court in the decision to operate, if that is the decision reached, should serve to protect the doctor or doctors who perform the operation, and any others who may be concerned in it, from subsequent adverse criticisms or claims.
+Lord Goff of Chieveley expressed his own view (p 79) that, as a matter of practice, the operation should not be performed without first obtaining the opinion of the court that the operation is, in the circumstances, in the best interests of the person concerned, by seeking a declaration that the operation is lawful.
+In his opinion, the courts guidance should be sought in order to obtain an independent, objective and authoritative view on the lawfulness of the procedure in the particular circumstances of the relevant case, after a hearing at which it can be ensured that there is independent representation on behalf of the person upon whom it is proposed to perform the operation.
+Lord Griffiths would have been minded to make it a legal requirement to obtain the sanction of the High Court in all cases, and considered that the common law could be adapted to introduce such a requirement.
+However, he recognised that he would be making new law, and that the other members of the House considered that it was not open to them to take that course.
+He therefore accepted what Lord Brandon had proposed, but as second best (pp 70 to 71).
+Airedale NHS Trust v Bland [1993] AC 789 concerned a man who had been left in a persistent vegetative state after being injured in the Hillsborough disaster.
+He could see, hear, and feel nothing and could not communicate in any way.
+There was no prospect whatever that he would make any recovery, but if he continued to have the medical care that he was receiving, there was every likelihood that he would maintain his present state of existence for many years to come.
+Over three years after the accident, the family and the patients doctors having formed the view that, in these circumstances, it was appropriate to stop prolonging his life by artificial means, an application was made by the hospital authority for declarations that the measures keeping him alive, including artificial nutrition and hydration, could lawfully be discontinued, which would result in his death.
+The House of Lords held that the declarations could and should be granted, explaining why in a series of thoughtful speeches considering the moral and legal aspects of the issue.
+It is important to set the decision in context.
+Recent developments in medical technology, including the development of life support systems, had made it possible for patients who would otherwise have died to survive.
+As Lord Browne Wilkinson said (p 878C et seq), those recent developments had fundamentally affected previous certainties about what was life and what was death, and meant that the time and manner of someones death might no longer be dictated by nature but might instead be determined by a human decision.
+Wholly new ethical and social problems had been raised by the developments, and society was not of one mind about them.
+It was not a foregone conclusion that the withdrawal of artificial life support measures could be tolerated at all by the criminal and civil law, and the decision to endorse the declarations that had been granted by the President of the Family Division was only arrived at after an extensive review of the law, and then only on a narrow basis tied firmly to the facts of the case.
+Their Lordships were at pains to emphasise that the case was an extreme one, it having been overwhelmingly established that the patient was, and would remain, insensate.
+They were conscious that there would be cases in which the facts were less extreme and the issues, legal and ethical, even more difficult.
+They did not seek, in their decision, to provide a set of universal principles, dictating the answers in all other cases, and there was acknowledgment that some of the issues arising may more properly be for Parliament to determine.
+A sense of the delicacy with which the House was proceeding is conveyed by Lord Mustills observation that [e]very step forward requires the greatest caution (p 899F).
+In these circumstances, it is not at all surprising that their Lordships held that, for the time being, the guidance of the court should be sought before treatment and care of a patient were discontinued.
+Given the central importance that Mr Gordon attaches to what they said about this, the relevant passages will need to be cited in full in due course, but, before doing that, it is appropriate to underline the following three points of importance that are found in the speeches and have relevance not only to the decision in the Bland case, but also to subsequent decisions, including the present one: i) As has already been seen from In re F (Mental Patient: Sterilisation) (supra), it is unlawful to administer medical treatment to an adult who is conscious and of sound mind, without his consent; to do so is both a tort and the crime of battery.
+Such an adult is at liberty to decline treatment even if that will result in his death, and the same applies where a person, in anticipation of entering into a condition such as PVS, has given clear instructions that in such an event he is not to be given medical care, including artificial feeding, designed to keep him alive. ii) Where a person, due to accident or some other cause, becomes unconscious and thus unable to give or withhold consent, it is lawful for doctors to give such treatment as, in their informed opinion, is in the best interests of the patient.
+Where it is no longer in the best interests of the patient to provide treatment, it may, and ultimately should, be discontinued (see, for example, p 867 of Lord Goffs speech, with which Lord Keith of Kinkel and Lord Lowry agreed). iii) The argument that artificial feeding (in that case by nasogastric tube) was not medical treatment at all, but indistinguishable from normal feeding, was rejected.
+Regard had to be had to the whole regime which was keeping the patient alive, and in any event a medical technique was involved in the feeding.
+I come now to look in more depth at what their Lordships had to say in the Bland case when explaining their position in relation to declaratory relief.
+It is useful to start with their recognition that the courts and the medical profession were working together in addressing the new situation that had arisen as a result of scientific advances.
+The medical profession had already been working on the issue and there was available a Discussion Paper on Treatment of Patients in Persistent Vegetative State, issued in September 1992 by the Medical Ethics Committee of the British Medical Association.
+On the basis of it, at p 870, Lord Goff paid tribute to the evident care with which the topic was being considered by the medical profession.
+In a passage which remains relevant today, he commented as follows on the respective roles of doctors and judges in life and death cases (p 871): I also feel that those who are concerned that a matter of life and death, such as is involved in a decision to withhold life support in case of this kind, should be left to the doctors, would do well to study this paper.
+The truth is that, in the course of their work, doctors frequently have to make decisions which may affect the continued survival of their patients, and are in reality far more experienced in matters of this kind than are the judges.
+It is nevertheless the function of the judges to state the legal principles upon which the lawfulness of the actions of doctors depend; but in the end the decisions to be made in individual cases must rest with the doctors themselves.
+In these circumstances, what is required is a sensitive understanding by both the judges and the doctors of each other's respective functions, and in particular a determination by the judges not merely to understand the problems facing the medical profession in cases of this kind, but also to regard their professional standards with respect.
+Mutual understanding between the doctors and the judges is the best way to ensure the evolution of a sensitive and sensible legal framework for the treatment and care of patients, with a sound ethical base, in the interest of the patients themselves.
+This is a topic to which I will return at the end of this opinion, when I come to consider the extent to which the view of the court should be sought, as a matter of practice, in cases such as the present.
+At p 873, Lord Goff did return to the topic, saying: I turn finally to the extent to which doctors should, as a matter of practice, seek the guidance of the court, by way of an application for declaratory relief, before withholding life prolonging treatment from a PVS patient.
+The President considered that the opinion of the court should be sought in all cases similar to the present.
+In the Court of Appeal, Sir Thomas Bingham MR expressed his agreement with Sir Stephen Brown P in the following words, ante, pp 815 816: This was in my respectful view a wise ruling, directed to the protection of patients, the protection of doctors, the reassurance of patients families and the reassurance of the public.
+The practice proposed seems to me desirable.
+It may very well be that with the passage of time a body of experience and practice will build up which will obviate the need for application in every case, but for the time being I am satisfied that the practice which the President described should be followed.
+Before the Appellate Committee, this view was supported both by Mr Munby, for the Official Solicitor, and by Mr Lester, as amicus curiae.
+For the respondents, Mr Francis suggested that an adequate safeguard would be provided if reference to the court was required in certain specific cases, ie, (1) where there was known to be a medical disagreement as to the diagnosis or prognosis, and (2) problems had arisen with the patients relatives disagreement by the next of kin with the medical recommendation; actual or apparent conflict of interest between the next of kin and the patient; dispute between members of the patients family; or absence of any next of kin to give their consent.
+There is, I consider, much to be said for the view that an application to the court will not be needed in every case, but only in particular circumstances, such as those suggested by Mr Francis.
+In this connection I was impressed not only by the care being taken by the Medical Ethics Committee to provide guidance to the profession, but also by information given to the Appellate Committee about the substantial number of PVS patients in the country, and the very considerable cost of obtaining guidance from the court in cases such as the present.
+However, in my opinion this is a matter which would be better kept under review by the President of the Family Division than resolved now by your Lordships House.
+I understand that a similar review is being undertaken in cases concerned with the sterilisation of adult women of unsound mind, with a consequent relaxation of the practice relating to applications to the court in such cases.
+For my part, I would therefore leave the matter as proposed by the Master of the Rolls; but I wish to express the hope that the President of the Family Division, who will no doubt be kept well informed about developments in this field, will soon feel able to relax the present requirement so as to limit applications for declarations to those cases in which there is a special need for the procedure to be invoked.
+Lord Keith said (p 859): The decision whether or not the continued treatment and care of a PVS patient confers any benefit on him is essentially one for the practitioners in charge of his case.
+The question is whether any decision that it does not and that the treatment and care should therefore be discontinued should as a matter of routine be brought before the Family Division for endorsement or the reverse.
+The view taken by the President of the Family Division and the Court of Appeal was that it should, at least for the time being and until a body of experience and practice has been built up which might obviate the need for application in every case.
+As Sir Thomas Bingham MR said, this would be in the interests of the protection of patients, the protection of doctors, the reassurance of the patients families and the reassurance of the public.
+I respectfully agree that these considerations render desirable the practice of application.
+Lord Lowry said (p 875):
+Lord Browne Wilkinson said (p 885): Procedurally I can see no present alternative to an application to the court such as that made in the present case.
+This view is reinforced for me when I reflect, against the background of your Lordships conclusions of law, that, in the absence of an application, the doctor who proposes the cessation of life supporting care and treatment on the ground that their continuance would not be in the patients best interests will have reached that conclusion himself and will be judge in his own cause unless and until his chosen course of action is challenged in criminal or civil proceedings.
+A practical alternative may, however, be evolved through the practice of the Family Division and with the help of the Medical Ethics Committee, which has already devoted so much thought to the problem, and possibly of Parliament through legislation.
+I am very conscious that I have reached my conclusions on narrow, legalistic, grounds which provide no satisfactory basis for the decision of cases which will arise in the future where the facts are not identical.
+I must again emphasise that this is an extreme case where it can be overwhelmingly proved that the patient is and will remain insensate: he neither feels pain from treatment nor will feel pain in dying and has no prospect of any medical care improving his condition.
+Unless, as I very much hope, Parliament reviews the law, the courts will be faced with cases where the chances of improvement are slight, or the patient has very slight sensate awareness.
+I express no view on what should be the answer in such circumstances: my decision does not cover such a case.
+I therefore consider that, for the foreseeable future, doctors would be well advised in each case to apply to the court for a declaration as to the legality of any proposed discontinuance of life support where there has been no valid consent by or on behalf of the patient to such discontinuance.
+Lord Mustill did not say anything specifically on the topic, but he spoke of his profound misgivings about almost every aspect of this case (p 899), and, as the comment that I have already quoted above shows, he urged that matters should proceed with the greatest caution.
+The practice of seeking declarations as to the lawfulness of medical treatment became firmly established in the years after In re F and the Bland case, as can be seen from the comment of Hale J, as Baroness Hale then was, in In re S (Hospital Patient: Courts Jurisdiction) [1995] Fam 26, that it has been followed in many cases (p 31E).
+The next case which needs to be considered is R (Burke) v General Medical Council (Official Solicitor and others intervening) [2006] QB 273.
+There, the court was called upon to determine issues in relation to a patient who was competent but suffering from a congenital degenerative brain condition.
+In contrast to the Bland case, the litigation was not brought in order to obtain the courts sanction for treatment being withdrawn, but in order to ensure that it would not be withdrawn.
+Nevertheless, the decision covers ground which is of relevance to the present issue.
+The patient wished to ensure that the artificial nutrition and hydration that he would need as his degenerative condition progressed would not be withheld by the medical practitioners responsible for his care.
+He sought judicial review of the General Medical Councils 2002 guidance, Withholding and Withdrawing Life prolonging Treatments: Good Practice in Decision making, on the basis that it was incompatible with his rights at common law and under the ECHR in, inter alia, failing to spell out a legal requirement to obtain prior judicial sanction for the withdrawal of artificial nutrition and hydration.
+The Court of Appeal considered the principles applicable in such circumstances and found the guidance compatible with them.
+Giving the judgment of the court, the Master of the Rolls, Lord Phillips of Worth Matravers, considered whether there was in fact a legal requirement to obtain court authorisation before withdrawing artificial nutrition and hydration, as Munby J had determined that there was, in certain circumstances.
+The Court of Appeal did not agree that such a requirement existed.
+Summarising the legal position, the Master of the Rolls said (para 71): We asked Mr Gordon to explain the nature of the duty to seek the authorisation of the court and he was not able to give us a coherent explanation.
+So far as the criminal law is concerned, the court has no power to authorise that which would otherwise be unlawful: see, for instance, the observation of Lord Lowry in Blands case [1993] AC 789, 875H.
+Nor can the court render unlawful that which would otherwise be lawful.
+The same is true in relation to a possible infringement of civil law.
+In Blands case the House of Lords recommended that, as a matter of good practice, reference should be made to the Family Court before withdrawing ANH from a patient in a PVS, until a body of experience and practice had built up.
+Plainly there will be occasions in which it will be advisable for a doctor to seek the courts approval before withdrawing ANH in other circumstances, but what justification is there for postulating that he will be under a legal duty so to do? [Original emphasis]
+Having considered, but rejected, the possibility that the Human Rights Act 1998 and the decision of the European Court of Human Rights (the ECtHR) in Glass v United Kingdom [2004] 1 FLR 1019 had converted what was only a requirement of good practice into a legal requirement, the court said (para 80): The true position is that the court does not authorise treatment that would otherwise be unlawful.
+The court makes a declaration as to whether or not proposed treatment, or the withdrawal of treatment, will be lawful.
+Good practice may require medical practitioners to seek such a declaration where the legality of proposed treatment is in doubt.
+This is not, however, something that they are required to do as a matter of law.
+Mr Burke made a complaint to the ECtHR under articles 2, 3, 8 and 14 of the ECHR (Burke v United Kingdom (Application No 19807/0) 11 July 2006).
+It was rejected as manifestly ill founded.
+The ECtHR expressed itself satisfied that the presumption of domestic law is strongly in favour of prolonging life where possible, which accords with the spirit of the Convention (p 8 of the decision).
+Dealing specifically with the argument that there was insufficient protection for someone in Mr Burkes position, because a doctor might reach a decision to withdraw artificial nutrition and hydration without being obliged to obtain approval from the court, the court saw no problem with a process which involved taking into account the patients previously expressed wishes and those of people close to him, and the opinions of medical personnel, and approaching a court only if there was any conflict or doubt as to the applicants best interests.
+It appears to have been content to endorse what the Court of Appeal said: the Court would refer to the Court of Appeals explanation that the courts do not as such authorise medical actions but merely declare whether a proposed action is lawful.
+A doctor, fully subject to the sanctions of criminal and civil law, is only therefore recommended to obtain legal advice, in addition to proper supporting medical opinion, where a step is controversial in some way.
+Any more stringent legal duty would be prescriptively burdensome doctors, and emergency ward staff in particular, would be constantly in court and would not necessarily entail any greater protection.
+The Mental Capacity Act 2005
+Since 2007, the MCA 2005 has been the statutory context within which treatment decisions are taken in relation to those who lack capacity, essentially without input from the court, but with the possibility of an application being made to court should the case require it.
+It may be helpful briefly to review the main provisions of the Act which are relevant to the present issue, dealing first with provisions of general application and then coming, in para 39, to the provisions dealing with the courts involvement and, in para 40, to the provision requiring the Lord Chancellor to issue codes of practice.
+I start with two provisions which place the best interests of the person who lacks capacity at the heart of the process.
+Section 1(5) provides that an act done, or a decision made, under the Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
+Section 4 sets out how someone determining, for the purposes of the Act, what is in a persons best interests must go about the task.
+All the relevant circumstances must be considered, and the steps listed in the section must be taken.
+They include considering, so far as reasonably ascertainable, the persons wishes and feelings, and the beliefs and values that would be likely to influence his decision if he had capacity, as well as the other factors that he would be likely to consider if he were able to do so.
+Also to be taken into account are the views of various specified people who have some responsibility for or are interested in his welfare.
+There is a specific subsection, section 4(5), dealing with a determination that relates to life saving treatment; it provides that in such cases, in considering whether the treatment is in the best interests of the person concerned, the person making the determination must not be motivated by a desire to bring about his death.
+Section 5 allows carers, including health professionals, to carry out acts in connection with personal care, health care, or treatment of a person who lacks capacity to consent.
+It provides a significant degree of protection from liability, provided that the act is done in the reasonable belief that capacity is lacking and that the act is in the patients best interests.
+If these conditions are satisfied, no more liability is incurred than would have been incurred if the patient had had capacity to consent and had done so.
+There are provisions of the Act which enable someone to cater in advance for the possibility that he or she will, in future, lose the capacity to make decisions about his or her own welfare.
+One such provision is section 9 which deals with lasting powers of attorney, under which the donor gives the donee authority to make decisions about the donors personal welfare.
+Such a power of attorney is subject to the restrictions in section 11(7), and thus subject to sections 24 to 26 of the Act (see immediately below).
+Although it will normally extend to giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for the donor, section 11(8) provides that it will not authorise the giving or refusing of consent to the carrying out or continuation of life sustaining treatment, unless the instrument contains express provision to that effect.
+Sections 24 to 26 deal specifically with advance decisions to refuse treatment.
+They enable an adult with capacity to decide in advance that if he later lacks capacity to consent to the carrying out or continuation of a specified health care treatment, that treatment is not to be carried out or continued.
+Such an advance decision applies to life sustaining treatment only if the decision is verified by a statement from the person concerned that it is to apply even if his life is at risk, and the decision complies with certain formalities set out in section 25(6), which essentially requires it to be written, signed and witnessed.
+Section 37 makes provision for a situation in which an NHS body is proposing to provide serious medical treatment for a person who lacks capacity to consent to it and there is no one, other than those engaged in providing care or treatment for the person in a professional capacity or for remuneration, whom it would be appropriate to consult in determining what would be in the persons best interests.
+Serious medical treatment means treatment which involves providing, withholding or withdrawing treatment of a kind prescribed by regulations made by the appropriate authority, which in practice will relate to situations in which a finely balanced decision has to be taken or what is proposed would be likely to involve serious consequences for the patient.
+Before providing the treatment, the NHS body must instruct an independent mental capacity advocate (referred to as an IMCA) to represent the person, although treatment which is urgently needed can be provided even though it has not been possible to appoint an IMCA.
+In providing treatment, the NHS body has to take into account information provided or submissions made by the IMCA.
+The provisions of sections 15 to 17 of the Act give the court power to make decisions about personal welfare and to make declarations and orders in respect of a person who lacks capacity.
+Section 15 deals with declarations, including declarations as to the lawfulness or otherwise of any act which has been or is to be done.
+Section 16 enables the court, by making an order, to make personal welfare decisions for a person without capacity, and, by section 17, the courts power in this regard extends to giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for the patient.
+Section 16(3) makes it clear that the courts powers under section 16 are subject to the provisions of the Act and, in particular, to section 1 and to section 4.
+What governs the courts decision about any matter concerning the patients personal welfare is therefore the patients best interests.
+Section 42 provides for the Lord Chancellor to prepare and issue codes of practice on various subjects.
+Before preparing a code, the Lord Chancellor has duties to consult, and a code may not be issued unless it has been laid before both Houses of Parliament in accordance with section 43(2).
+Section 42(4) imposes a duty on someone acting in a professional capacity in relation to a person who lacks capacity to have regard to any relevant code.
+Section 42(5) provides that if it appears to a court conducting any criminal or civil proceedings that a provision of a code, or a failure to comply with a code, is relevant to a question arising in the proceedings, the provision or failure must be taken into account in deciding the question.
+Before leaving this overview of the provisions of the 2005 Act, it is worth noting a provision which is not to be found amongst them.
+The Law Commission had recommended (see Law Commission Report No 231 on Mental Incapacity, published in 1995, particularly para 6.21) that the new statute should provide that the discontinuance of artificial sustenance to an unconscious patient with no activity in the cerebral cortex and no prospect of recovery should in every case require the prior approval of the court, unless an attorney or court appointed manager had express authority to make the decision, albeit that flexibility for the future was to be incorporated by providing that the Secretary of State could, by order, replace the need for court approval with a requirement for a certificate from an independent medical practitioner duly appointed for that purpose.
+As the Explanatory Notes to the 2005 Act state, the Act has its basis in the Law Commission Report.
+However, it does not seem to have been thought appropriate to include in it a requirement of court approval.
+In a note provided by counsel for the appellant, it is suggested that the reason for this was that the government concluded that, rather than creating inflexible legal rules, the better course would be for the courts to continue to decide which cases should have their prior sanction, with the situations in which that was the case being set out in a code of practice (see Baroness Ashton of Uphollands statement during the debate on the Bill in the House of Lords, Hansard (HL Debates) 25 January 2005, vol 668, col 1243).
+Mental Capacity Act 2005 Code of Practice
+The Mental Capacity Act 2005 Code of Practice (the Code), issued under section 42 of the MCA 2005, came into effect in April 2007.
+Chapter 5 of the Code has a section entitled How should someones best interests be worked out when making decisions about life sustaining treatment? It includes the following: 5.31 All reasonable steps which are in the persons best interests should be taken to prolong their life.
+There will be a limited number of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery.
+In circumstances such as these, it may be that an assessment of best interests leads to the conclusion that it would be in the best interests of the patient to withdraw or withhold life sustaining treatment, even if this may result in the persons death.
+The decision maker must make a decision based on the best interests of the person who lacks capacity.
+They must not be motivated by a desire to bring about the persons death for whatever reason, even if this is from a sense of compassion.
+Healthcare and social care staff should also refer to relevant professional guidance when making decisions regarding life sustaining treatment. 5.33 Doctors must apply the best interests checklist and use their professional skills to decide whether life sustaining treatment is in the persons best interests.
+If the doctors assessment is disputed, and there is no other way of resolving the dispute, ultimately the Court of Protection may be asked to decide what is in the persons best interests. 5.36 As mentioned in para 5.33 above, where there is any doubt about the patients best interests, an application should be made to the Court of Protection for a decision as to whether withholding or withdrawing life sustaining treatment is in the patients best interests.
+Chapter 6 of the Code is entitled What protection does the Act offer for people providing care or treatment? Healthcare and treatment decisions are dealt with from paras 6.15 to 6.19.
+Para 6.16 says that major healthcare and treatment decisions, such as major surgery or a decision that no attempt is to be made to resuscitate a patient, need special consideration.
+Health care staff are directed to work out carefully what would be in the persons best interests, taking into account the views of people in various categories, and involving an IMCA where no one else is available to consult.
+Para 6.17 commends multi disciplinary meetings as often the best way to decide on a persons best interests.
+They bring together healthcare and social care staff to discuss the persons options and may involve those who are closest to the person concerned.
+However, the paragraph stresses that final responsibility for deciding what is in the best interests of the person lies with the member of healthcare staff responsible for the persons treatment, who should record their decision, how they reached it, and the reasons for it, in the patients clinical notes.
+As long as they have recorded objective reasons to show that the decision is in the persons best interests, and the other requirements of section 5 of the Act are met, all healthcare staff taking actions in connection with the particular treatment will be protected from liability.
+Para 6.18 then goes on to single out certain treatment decisions in the following terms: 6.18 Some treatment decisions are so serious that the court has to make them unless the person has previously made a Lasting Power of Attorney appointing an attorney to make such healthcare decisions for them (see chapter 7) or they have made a valid advance decision to refuse the proposed treatment (see chapter 9).
+The Court of Protection must be asked to make decisions relating to:20 the proposed withholding or withdrawal of artificial nutrition and hydration (ANH) from a patient in a permanent vegetative state (PVS) cases where it is proposed that a person who lacks capacity to consent should donate an organ or bone marrow to another person the proposed non therapeutic sterilisation of a person who lacks capacity to consent (for example, for contraceptive purposes) cases where there is a dispute about whether a particular treatment will be in a persons best interests.
+See paragraphs 8.18 8.24 for more details on these types of cases.
+Footnote 20 to para 6.18 refers to procedures resulting from those court judgments but the court judgments in question are not named.
+Para 6.19 develops matters a little:
+Chapter 8 of the Code deals with the role of the Court of Protection.
+Commencing at para 8.18, there is a section headed Serious healthcare and treatment decisions.
+Paras 8.18 and 8.19 read: 6.19 This last category may include cases that introduce ethical dilemmas concerning untested or innovative treatments where it is not known if the treatment will be effective, or certain cases involving a termination of pregnancy.
+It may also include cases where there is conflict between professionals or between professionals and family members which cannot be resolved in any other way.
+Where there is conflict, it is advisable for parties to get legal advice, though they may not necessarily be able to get legal aid to pay for this advice.
+Chapter 8 gives more information about the need to refer cases to court for a decision. 8.18 Prior to the Act coming into force, the courts decided that some decisions relating to the provision of medical treatment were so serious that in each case, an application should be made to the court for a declaration that the proposed action was lawful before that action was taken.
+Cases involving any of the following decisions should therefore be brought before a court: decisions about the proposed withholding or withdrawal of artificial nutrition and hydration (ANH) from patients in a permanent vegetative state (PVS) cases involving organ or bone marrow donation by a person who lacks capacity to consent cases involving the proposed non therapeutic sterilisation of a person who lacks capacity to consent to this (eg for contraceptive purposes) and all other cases where there is a doubt or dispute about whether a particular treatment will be in a persons best interests. 8.19 The case law requirement to seek a declaration in cases involving the withholding or withdrawing of artificial nutrition and hydration to people in a permanent vegetative state is unaffected by the Act30 and as a matter of practice, these cases should be put to the Court of Protection for approval.
+Footnote 30 refers to the Bland case.
+Just to complete the picture, para 15.36 says that [t]here are some decisions that are so serious that the court should always make them and refers the reader back to chapter 8 for more information about that type of case.
+It will be noted that the Code of Practice does not seem to be entirely consistent in its approach to involving the court in serious treatment decisions, chapter 6 asserting that the Court of Protection must be asked to make certain decisions, and chapter 8 that certain decisions should be brought before a court.
+It will be necessary to return to this later.
+Court of Protection Rules and Practice Directions
+Court of Protection Rules are made by the President of the Family Division (who is the President of the Court of Protection), in exercise of powers conferred by the MCA 2005.
+Assistance is provided by an ad hoc Rules Committee which is chaired by the Vice President of the Court of Protection, and includes judges of the Court of Protection, experienced solicitors and barristers, representatives of local authorities, court staff and the Official Solicitor.
+The first set of rules were the Court of Protection Rules 2007 (SI 2007/1744).
+They were replaced by the Court of Protection Rules 2017 (SI 2017/1035) which came into force on 1 December 2017.
+Both sets of Rules have been supplemented by Practice Directions.
+The Court of Protection Rules 2007 were accompanied by Practice Direction 9E.
+This was entitled Applications relating to serious medical treatment and set out the procedure to be followed where the application concerned serious medical treatment.
+Para 5 of the Practice Direction said that cases involving decisions about the proposed withholding or withdrawal of artificial nutrition and hydration from a person in a permanent vegetative state or a minimally conscious state should be regarded as serious medical treatment for the purposes of the Rules and this Practice Direction, and should be brought to the court.
+When the 2017 Rules replaced the 2007 Rules, this provision was revoked and no equivalent provision was introduced.
+As to the reasoning for this change, some insight is provided by the notes of a meeting in July 2017 of the ad hoc Court of Protection Rules Committee, which are headed Further Note: Serious Medical Treatment Practice Directions 9E and12A (28 July 2017).
+The notes state (para 7) that no final recommendation was formulated by the committee.
+However, it is recorded (para 4) that it had been concluded that Practice Direction 9E should not have included provisions as to what cases should be brought to court, since a practice direction cannot properly direct when an application should be made, and that accordingly any new practice direction should not include any equivalent provision.
+The final paragraph records that Charles J, as the chairman of the committee, would recommend and so instruct work to be done to remove and not replace Practice Direction 9E.
+It appears that the committee had considered, but not generally favoured, a practice direction which took a different approach, for example recording what had been said in the decided cases.
+It was, however, common ground that the British Medical Association, the Law Society, the Ministry of Justice and the Department of Health (the reference, in the conclusions and recommendations section of the note, to the Ministry of Defence must be a mistake) would create a working group to address the underlying issues and the giving of guidance which would take account of developing authority and so would consider how the guidance produced could be readily updated.
+The case law: domestic decisions after MCA 2005
+Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67; [2014] AC 591 was the first case to come before the Supreme Court under the MCA 2005.
+It concerned a patient with multiple medical problems, who had a very limited level of awareness and lacked capacity to make decisions concerning his medical treatment.
+The hospital Trust applied for a declaration, under section 15 of the MCA 2005, that it would be lawful, as being in the patients best interests, for three particular life preserving treatments to be withheld if his condition got worse.
+The family did not agree with the withdrawal of treatment and, at first instance, Peter Jackson J refused to grant the declaration.
+By the time of the Trusts appeal to the Court of Appeal, the patient had suffered a dramatic deterioration; he was completely dependent on mechanical ventilation and was comatose or semi comatose.
+The Court of Appeal allowed the appeal and granted the declaration.
+The patient subsequently died, following a cardiac arrest, but the Supreme Court nonetheless heard his widows appeal, which gave rise to questions concerning the proper approach to the assessment of a patients best interests in the post MCA 2005 era.
+The appeal was dismissed, although Peter Jackson Js approach to determining the patients best interests was preferred to that of the Court of Appeal.
+Baroness Hale gave a judgment with which the other justices all agreed.
+She restated, now with reference to the provisions of the MCA 2005, the position as to invasive medical treatment of a patient.
+Although going over ground covered in the pre MCA 2005 cases, it is worth setting out the relevant passages in full, since they establish the up to date legal context for the questions that arise in the present appeal.
+She said: 19.
+Generally it is the patients consent which makes invasive medical treatment lawful.
+It is not lawful to treat a patient who has capacity and refuses that treatment.
+Nor is it lawful to treat a patient who lacks capacity if he has made a valid and applicable advance decision to refuse it: see the 2005 Act, sections 24 to 26.
+Nor is it lawful to treat such a patient if he has granted a lasting power of attorney (under section 10) or the court has appointed a deputy (under section 16) with the power to give or withhold consent to that treatment and that consent is withheld; but an attorney only has power to give or withhold consent to the carrying out or continuation of life sustaining treatment if the instrument expressly so provides (section 11(8)) and a deputy cannot refuse consent to such treatment: section 20(5). 20.
+Those cases aside, it was recognised by the House of Lords in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 that where a patient is unable to consent to treatment it is lawful to give her treatment which is necessary in her best interests.
+Section 5 of the Mental Capacity Act 2005 now provides a general defence for acts done in connection with the care or treatment of a person, provided that the actor has first taken reasonable steps to establish whether the person concerned lacks capacity in relation to the matter in question and reasonably believes both that the person lacks capacity and that it will be in his best interests for the act to be done.
+However, section 5 does not expressly refer both to acts and to omissions, the giving or withholding of treatment.
+The reason for this, in my view, is that the fundamental question is whether it is lawful to give the treatment, not whether it is lawful to withhold it.
+Baroness Hale underlined further, in para 22, that the focus is on whether it is in the patients best interests to give the treatment, rather than whether it is in his best interests to withhold it or withdraw it.
+She continued: If the treatment is not in [the patients] best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it.
+Indeed, it will follow that it will not be lawful to give it.
+It also follows that (provided of course that they have acted reasonably and without negligence) the clinical team will not be in breach of any duty towards the patient if they withhold or withdraw it.
+The court did not have to consider the issue that now falls for determination.
+However, it is worth noting that Baroness Hale spoke in approving terms, in para 47, of the sensible advice given by the General Medical Council in their guidance on Treatment and care towards the end of life: Good practice in decision making (see below) and said that nothing in her judgment was inconsistent with it.
+In re Briggs (Incapacitated Person) [2018] Fam 63 concerned a man in a minimally conscious state.
+His wife brought proceedings under section 21A of the MCA 2005 (as inserted by paragraph 9 of Schedule 2 to the Mental Health Act 2007) seeking a determination that it was not in her husbands best interests to continue to be given the CANH that he needed to survive.
+By virtue of having applied under section 21A, the wife was entitled to non means tested legal aid.
+It was contended, against her, that the issue of her husbands treatment could not be raised under section 21A (which deals with the courts powers in relation to the authorisation of deprivation of liberty) and that the application should have been brought under other provisions of the Act, which would have resulted in only means tested funding being available.
+The question for the court was therefore whether section 21A was broad enough to cover the treatment application.
+The Court of Appeal held that it did not provide a route for determining questions in relation to medical treatment where, as in that case, the deprivation of liberty itself was not the real or essential issue before the court.
+An application for a welfare order under section 16 of the Act should have been made.
+In the course of the judgment, King LJ (with whom both other members of the court agreed, Sir Brian Leveson P adding a few words of his own) made some observations about the issue that now concerns this court.
+Although obiter, they are still valuable, not least for their insight into what happens in practice.
+At the time, Practice Direction 9E remained in force, and King LJ observed, at para 24, that at first glance there seemed to be a tension between the practice direction, which appeared to say that all cases of withholding or withdrawing treatment in relation to a minimally conscious person should be brought before the court, and the Code which said that matters should be brought before the court where there was a doubt as to the persons best interests.
+Because the Code was a statutory code to which the MCA 2005 made it mandatory to have regard, she said that the Code must take precedence and then continued: 26.
+In reality virtually all of these traumatic decisions are made by agreement between the families and the treating teams of the person involved.
+To suggest that every case should go before a judge (even where all concerned are in accord as to what was in the best interests of the patient) would not only be an unnecessary pressure on the overstretched resources of the NHS trusts and add to the burden on the courts but, most importantly, would greatly add to the strain on the families having to face these unimaginably distressing decisions.
+In my judgment, the practice direction provides valuable procedural guidance but should not be interpreted as introducing a requirement that all cases where a decision is to be made about the withdrawal of CANH must come before a court.
+Having rejected the argument that medical treatment decisions could be taken, in a case such as that which the court was considering, under section 21A of the MCA 2005, King LJ set out in para 108 what, in her view, was the proper approach to a medical treatment case.
+In so far as relevant to the present appeal, she said: (i) If the medical treatment proposed is not in dispute, then, regardless of whether it involves the withdrawal of treatment from a person who is minimally conscious or in a persistent vegetative state, it is a decision as to what treatment is in Ps best interests and can be taken by the treating doctors who then have immunity pursuant to section 5 of the MCA. (ii) If there is a dispute in relation to medical treatment of an incapacitated person, and, specifically, where there is a doubt as to whether CANH should be withdrawn, then the matter should be referred to the court for a personal welfare determination under sections 15 to 17 of the MCA.
+In similar vein, Sir Brian Leveson P said, at para 114, that [i]f agreement between the authorities and the family is possible, litigation will not be necessary.
+Finally, in terms of the post MCA 2005 domestic case law, I would refer to two decisions of the Court of Protection.
+It is important to do so, because judges of the Family Division, who sit also in the Court of Protection, deal regularly with the very difficult welfare decisions which have to be taken as people approach the end of their lives, and this experience gives weight to their views.
+In In re M (Adult Patient) (Minimally Conscious State: Withdrawal of Treatment) [2011] EWHC 2443 (Fam); [2012] 1 WLR 1653, a case concerning a woman in a minimally conscious state, Baker J expressed the view (paras 78, 82 and 257) that all decisions about the proposed withholding or withdrawal of ANH from a person in a persistent vegetative state or minimally conscious state should always be brought to the court.
+By this, it can be seen from para 257 that he meant that such decisions must be referred to court.
+He considered that the legal position has been clear since the decision in the Bland case and, in so far as there was any difference between the Code (which might have suggested that applications to court were not necessary unless the doctors assessment of the patients best interests was disputed) and the position set out in Practice Direction 9E, it was the Practice Direction which reflected the law.
+Our attention was invited to a fairly recent paper entitled A matter of life and death (2017) 43 J Med Ethics 427 written by Baker J from which it appears that, at least up to that point, he continued to be of the view that he expressed in In re M. He acknowledged that the time may come when applications to court were only necessary where there was a dispute, but did not believe that time had yet been reached.
+In his view, at p 434, medical science and the law were still evolving and until such time as there was greater clarity and understanding about the disorders of consciousness, and about the legal and ethical principles to be applied, there remains a need for independent oversight, and applications to the court should continue to be obligatory in all cases where withdrawal of ANH is proposed.
+He did, however, identify an urgent need for a more streamlined procedure for court resolution, avoiding undue cost and delay.
+In In re M (Incapacitated Person: Withdrawal of Treatment) [2017] EWCOP 18; [2018] 1 WLR 465, the court was concerned with the withdrawal of CANH from a woman who was suffering from Huntingtons disease and was in a minimally conscious state.
+Her family, her clinicians, and a specialist from whom a second opinion had been sought, were agreed that it was in her best interests not to continue with treatment, notwithstanding that that would result in her death, and a declaration was made to that effect.
+Peter Jackson J responded to a request from the parties for clarification as to whether legal proceedings were, in fact, necessary prior to withholding or withdrawing CANH when an incapacitated persons family and clinicians agreed that CANH was no longer in the persons best interests.
+At the time he decided the case, Practice Direction 9E (which had been influential in Baker Js decision) was still effective, but his view differed from Baker Js.
+Notwithstanding the provisions of the Practice Direction, he held (paras 37 and 38) that, on the facts with which he was dealing, the decision about what was in Ms best interests could lawfully have been taken by her treating doctors, having fully consulted her family and having acted in accordance with the MCA 2005 and with recognised medical standards, without reference to the court.
+He pointed out that there was no statutory obligation to bring the case to court and gave his view that none of the cases and materials cited in his judgment sustained the proposition that a court decision was necessary as a matter of law rather than of practice.
+He did not consider that article 2 of the ECHR mandated court oversight, taking the view that the approach taken in Ms case fully respected her article 2 rights in a fashion contemplated in Lambert v France (2016) 62 EHRR 2.
+He drew attention to the fact that, overwhelmingly, treatment decisions up to and including the withholding of life support are taken by clinicians and families working together in accordance with good practice, with no suggestion of mandatory court involvement, and expressed the view that it was anomalous to require it for a limited subset of cases (those involving PVS or MCS) which were not sufficiently different to justify different treatment.
+Identifying another anomaly, he also observed that there was no suggestion that the court should be involved where there was a valid and applicable advance decision, yet the grave consequences of the decision and the risk of error were no different in such cases from cases where there was no advance decision.
+He also referred to the deterrent effect of costly and time consuming proceedings, both on the individual case and on the patient population in general.
+He considered that a mandatory litigation requirement may deflect clinicians and families from making true best interests decisions and in some cases lead to inappropriate treatment continuing by default.
+He gave Ms case as an example, in that she continued to receive CANH that neither her doctors nor her family thought in her best interests for almost a year until a court decision was eventually sought.
+He made quite clear, however, that the court is always available where there is disagreement, or where it is felt for some other reason that an application should be made, although this would only arise in rare cases.
+Strasbourg jurisprudence
+Since Mr Gordon relies upon the ECHR as one foundation for his argument that there is a requirement to apply to court for a declaration in every case, it is important to look at the case law of the ECtHR on the subject.
+I have already referred to the case of Burke in 2006.
+The case of Lambert v France (2016) 62 EHRR 2 is also very much in point, although it received only a passing mention in the appellants written case.
+If there were any doubt as to its significance, in Gard v United Kingdom (2017) 65 EHRR SE9, the ECtHR described it as its landmark Grand Chamber case Lambert (para 79).
+Lambert concerned a man, VL, who had sustained serious head injuries, rendering him tetraplegic and completely dependent.
+He had irreversible brain damage and was receiving artificial nutrition and hydration.
+Through the collective procedure established in France by the Public Health Code as amended by the Act of 22 April 2005 on patients rights and end of life issues (the Public Health Code), a decision was taken by Dr K to withdraw nutrition and hydration.
+VLs wife, and ultimately also his parents, a half brother and a sister, were involved in the decision making process.
+His parents, half brother and sister opposed the withdrawal of nutrition and hydration, and there was considerable litigation in France.
+This culminated in the Conseil dtat.
+Furnished with an expert medical report which concluded that VL was in a vegetative state, and after considering observations on the Public Health Code from a number of amici curiae, the Conseil held that Dr Ks decision was not unlawful.
+The parents, half brother and sister made an application to the ECtHR, arguing that there was a violation of (inter alia) articles 2 and 8 of the ECHR.
+By a majority, the court found that there was no violation of article 2, and that there was no need for a separate ruling on article 8.
+In its judgment, it referred back to its previous decisions in Glass (2003) 37 EHRR CD66 and Burke v United Kingdom (Application No 19807/0) (supra), observing at para 143 that: in addressing the question of the administering or withdrawal of medical treatment [in those cases], it took into account the following factors: the existence in domestic law and practice of a regulatory framework compatible with the requirements of article 2; whether account had been taken of the applicants previously expressed wishes and those of the persons close to him, as well as the opinions of other medical personnel; and the possibility to approach the courts in the event of doubts as to the best decision to take in the patients interests.
+These factors were relevant to its decision about VL (and were set out again subsequently in para 80 of Gard), as well as the criteria laid down in the Council of Europes Guide on the decision making process regarding medical treatment in end of life situations.
+The Guide had been drawn up in the course of work on patients rights and with the intention of facilitating the implementation of the Oviedo Convention on Human Rights and Biomedicine (see para 59 of Lambert), which has been ratified by 29 of the Council of Europe member states, but not the United Kingdom.
+The ECtHR observed (para 165) that the comparative law materials available to it showed that, in those countries which authorise the withdrawal of treatment, and where the patient has not given any advance directive, there is a great variety of arrangements governing the taking of the final decision to withdraw treatment.
+The most common situation was that the final decision was taken by the doctor treating the patient, but it could be taken jointly by the doctor and the family, by the family or legal representative, or (as it is put in para 75) even the courts.
+The ECtHR determined that the French legal provisions, as interpreted by the Conseil dtat, constituted a legal framework which was sufficiently clear to regulate with precision the decisions taken by doctors in situations such as VLs, and which ensured protection of patients lives.
+It is worth looking in a little detail at what was required by French law at the relevant time.
+By the Public Health Code (including the Code of Medical Ethics which is part of it), the decision to limit or withdraw treatment of a person who is unable to express his or her wishes is taken by the doctor in charge of the patient, after the implementation of a collective procedure.
+The circumstances in which such a decision can be taken are set out in article R.4127 37 para I of the Public Health Code.
+I have included the provision in both French and English in order that the reference to unreasonable obstinacy in the English translation might be better understood; the ECtHR explains it in para 53 as continuing treatment to unreasonable lengths.
+En toutes circonstances, le mdecin doit sefforcer de soulager les souffrances du malade par des moyens appropris son tat et lassister moralement.
+Il doit sabstenir de toute obstination draisonnable dans les investigations ou la thrapeutique et peut renoncer entreprendre ou poursuivre des traitements qui apparaissent inutiles, disproportionns ou qui nont dautre objet ou effet que le maintien artificiel de la vie.
+The doctor shall at all times endeavour to alleviate suffering by the means most appropriate to the patients condition, and provide moral support.
+He or she shall refrain from any unreasonable obstinacy in carrying out examinations or treatment and may decide to withhold or discontinue treatment which appears futile or disproportionate or the only purpose or effect of which is to sustain life artificially.
+Before taking the decision, the doctor is required to consult with the care team where there is one, and there has to be a reasoned opinion of at least one doctor acting as an independent consultant.
+The decision has to take into account any wishes previously expressed by the patient, in particular in the form of advance directives, the views of any person of trust that the patient may have designated and of the family or, failing this, of another person close to the patient.
+Reasons have to be given for any decision to limit or withdraw treatment, and the position has to be documented in the patients file.
+Whilst the matter had, in VLs case, been litigated in the courts, demonstrating that recourse could be had to court if necessary, court approval was not required by the French provisions.
+Although the applicants did not advance any argument that this rendered the system unsatisfactory for the purposes of article 2, they did complain about the decision making process on other grounds, considering that the decision should have been a genuinely collective one or, at the very least, provision should have been made for mediation in the event of disagreement.
+This complaint led the court to consider what obligations there were concerning the decision making process.
+Rejecting the complaint, it said (para 168) that the organisation of the decision making process, including the designation of the person who takes the final decision to withdraw treatment and the detailed arrangements for the taking of the decision, fall within the states margin of appreciation.
+The French process (as amended, although not substantially, in 2016) once more withstood scrutiny by the ECtHR in January 2018 in Afiri and Biddarri v France (Application No 1828/18) 23 January 2018.
+The court again re iterated the elements set out in para 143 of Lambert (supra) and repeated the observations it had there made (para 168) about the organisation of the decision making process.
+Other guidance
+Various medical bodies in the UK have produced codes relating to the withdrawal of life sustaining treatment.
+In chronological order, they are: i) The BMAs Withholding and Withdrawing Life Prolonging Medical Treatment: Guidance for decision making (first published in 1999, 3rd ed 2007) ii) The GMCs Treatment and care towards the end of life: good practice in decision making (published May 2010) iii) The report of the Royal College of Physicians (the RCP) entitled Prolonged disorders of consciousness: National clinical guidelines (the report of a working party in 2013) iv) An Interim Guidance document produced in December 2017 by the GMC, BMA and RCP entitled Decisions to withdraw clinically assisted nutrition and hydration (CANH) from patients in permanent vegetative state (PVS) or minimally conscious state (MCS) following sudden onset profound brain injury.
+The last document referred to in the previous paragraph was published after the decisions at first instance in the present case, the Court of Appeals decision in Briggs, and Peter Jackson Js decision in In re M.
+It was not meant to override the existing guidance from each of the three bodies, but to supplement it, responding to the statements in those cases that there is no requirement for treating clinicians to seek court approval to withdrawing CANH, and to the withdrawal of Practice Direction 9E.
+It summarises the recent developments in the law, and also the views of the GMC, BMA, and RCP about good clinical and professional practice in the area.
+It is intended that before long it will be replaced with a new final guidance, which (the introduction to the Interim Guidance says) will recommend safeguards to ensure that a robust and thorough assessment process continues to be followed prior to the withdrawal of CANH.
+It is necessary to look in more detail at this body of professional guidance since it has a very important part to play in ensuring the proper protection of patients and in maintaining the confidence of the public in the health care system.
+Whatever impression might be conveyed by terms such as guidance and guidelines, the practice set out in the various documents has significant weight.
+This is perhaps particularly so in relation to guidance emanating from the GMC, which has a special role in providing guidance for the medical profession.
+It was established by statute, the Medical Act 1983, with the over arching objective of protecting the public, and is charged with setting and maintaining the standards that doctors across the UK must follow, where necessary taking action in relation to a doctor if he or she is found to be falling below the required standard.
+Its statutory powers under the Medical Act include power to issue advice for members of the medical profession on standards of professional conduct, standards of professional performance and medical ethics (section 35).
+The GMCs 2010 guide to good practice draws upon the domestic and European jurisprudence and covers the matters that one would therefore expect.
+I will not rehearse all those matters here, particularly given that guidance is continuing to evolve, and will simply give a broad indication of the nature and ambit of the document.
+It provides the doctor with a decision making model, applicable where an adult lacks the capacity to decide about treatment and care.
+As part of the decision making process, the doctor is to: find out about any valid advance decision made by the patient or consider what treatments are clinically appropriate and likely to i) make an assessment of the patients condition, ii) benefit the patient, iii) anyone who has legal authority to decide for him, iv) as far as practical and appropriate, consult members of the healthcare team and those close to the patient and, when deciding about treatment, take their views into account, v) take steps towards the appointment of an IMCA where appropriate, vi) attempt to resolve disagreements about what treatment and care would be of overall benefit to the patient, seeking legal advice on applying to court for an independent ruling if agreement is not reached.
+The guide requires a record to be made of decisions about treatment, and of who was consulted in relation to the decisions.
+There is a section specifically addressing CANH, particularly stressing the need to listen to and consider the views of the patient and those close to them, and to explain the issues to be considered.
+The doctor is alerted to the need, in the event of disagreement about CANH, to ensure that the patient or someone acting on their behalf is advised on how to access their own legal advice or representation.
+Where the patient is not expected to die in any event in hours or days, but the doctor judges that CANH would not be of overall benefit to him, all reasonable steps must be taken to get a second opinion from a senior clinician who is not already directly involved but who should examine the patient.
+If that is not practically possible in exceptional circumstances, advice from a colleague must still be sought.
+As to patients in PVS or a condition closely resembling it, the guide says that the courts require that you approach them for a ruling.
+This is, however, modified in the Interim Guidance of December 2017 which proceeds upon the basis that there will be cases in which no court application is required.
+The December 2017 Interim Guidance starts by identifying that a best interests decision cannot be taken for the patient where he has made a valid and applicable advance decision to refuse treatment which covers CANH, or where an attorney appointed under a suitable lasting power of attorney makes the decision.
+It then goes on to say that where there is disagreement about best interests or the decision is finely balanced, an application should be made to court for a declaration as to whether CANH continues to be in the patients best interests.
+Then, dealing with the remainder of cases, the guidance sets out the steps that should be taken to ensure that there is proper consultation prior to determining what is in the patients best interests.
+These include ensuring that the RCP guidelines have been followed regarding assessment, with the assessment carried out by professionals with the appropriate training, that guidance in the Mental Capacity Act Code, and from the BMA, RCP and/or GMC has been followed, that there have been formal, documented best interests meetings with those who care for the patient and are interested in his or her welfare, and that an IMCA is consulted where necessary.
+The doctor is told to find out as much as possible about the patients values, wishes, feelings and beliefs.
+A second clinical opinion should be sought from a consultant with experience of PDOC who has not been involved in the patients care and who should, so far as reasonably practical, be external to the NHS Trust/Clinical Commissioning Group (CCG); the consultant should examine the patient and review the medical records and the information that has been collected.
+There should be very detailed records kept, both a clinical record (covering many specified matters) and a record of discussions, meetings and so on.
+The RCP document is lengthy, covering the diagnosis and management of patients with PDOC.
+There is a section devoted to assessment, diagnosis, and monitoring, in which the doctor is alerted to the challenges in making an accurate diagnosis and the need for evaluation by a multi disciplinary team of expert clinicians, with the family and close friends of the patient having a key role, and is told that the diagnostic assessment process should follow a structured approach, elements of which are described in some detail.
+Another section of the document covers ethical and medico legal issues, also in detail.
+The BMA guidance is similarly substantial, its aim being to provide a coherent and comprehensive set of principles which apply to all decisions to withhold or withdraw life prolonging treatment (Introduction p xiii).
+It should be noted that the Faculty of Intensive Care Medicine (FICM) and the Intensive Care Society (ICS) have also issued joint recommendations in the form of Guidelines for the provision of intensive care services; these include recommendations about end of life care.
+The submissions on behalf of the Official Solicitor
+Considerations of human dignity and the sanctity of human life are, quite rightly, central to the Official Solicitors case.
+His submission is that only by requiring judicial scrutiny in every case concerning the withdrawal of CANH from a patient suffering from PDOC can human life and dignity be properly safeguarded.
+An important part of the protection is, he submits, the oversight of an independent and neutral person such as the Official Solicitor, who can investigate, expose potential disputes, and give the patient a voice in the decision making, and it is court proceedings that enable the Official Solicitor to be involved.
+Medical guidance on its own is, in his submission, insufficient protection, and so, until other protective mechanisms are devised, the common law and/or the ECHR dictate that an application to court must be made.
+I do not understand the Official Solicitor to go so far as to submit that In re F (Mental Patient: Sterilisation) and Blands case specifically impose a common law requirement for a court application in every case.
+His argument is less direct.
+In his written case, Mr Gordon says that it is abundantly clear from those cases that the House of Lords implicitly accepted the link between the need for common law protection of patients rights and necessary mechanisms (not yet sufficiently advanced) to give full protection of those rights.
+That, in his submission, is what led them to say that for the time being a declaration should be sought, it being the only suitably protective mechanism so far available.
+Since, in the Official Solicitors view, the necessary mechanisms have still not been developed, there remains no satisfactory alternative protection for patients.
+In those circumstances, it is artificial, he submits, to distinguish between a statement of good practice, and what is required by common law, as they are in fact one and the same, necessitating court involvement in every case.
+The passing of the MCA 2005 has not changed matters, it is submitted, and the common law is not undermined by the absence of an express statutory provision in it requiring court involvement.
+Indeed it is asserted that, on the contrary, [i]t was clear that Parliament intended that judicial scrutiny of any decision to withdraw CANH should continue for the foreseeable future.
+In terms of recent support for his position, Mr Gordon seeks to rely upon something that Baroness Hale said in In re N v (An Adult) (Court of Protection: Jurisdiction) [2017] AC 549, para 38.
+Whereas I intend to address the bulk of the Official Solicitors submissions later, this one can be dealt with straight away.
+I did not include In re N v (An Adult) (Court of Protection: Jurisdiction) in my rsum of the authorities as it is not on the point which requires determination here.
+The issue related to the powers of the Court of Protection where a public body, the local commissioning group, refused to provide or fund a care package for an incapacitated adult which his parents thought would be in his best interests.
+At para 38, introducing her discussion of that very different issue, Baroness Hale said: Section 5 of the 2005 Act gives a general authority, to act in relation to the care or treatment of P, to those caring for him who reasonably believe both that P lacks capacity in relation to the matter and that it will be in Ps best interests for the act to be done.
+This will usually suffice, unless the decision is so serious that the court itself has said it must be taken to court (My italics) It seems to me over ambitious to seek to rely upon the italicised sentence, taken out of context, as support for the existence of the common law requirement for which Mr Gordon contends.
+Turning to the ECHR, the Official Solicitor seeks to invoke article 2 (right to life), article 6 (right to a fair trial), article 8 (right to respect for private and family life) and article 14 (prohibition of discrimination) as further support for the assertion that court involvement is a necessary component in securing the patients rights.
+The jurisprudence of the ECtHR makes clear, he says, that if there is doubt as to the medical position or the patients best interests, there must be a real remedy and, in cases such as the present, only a court application will reveal whether there is doubt.
+Here, without the Official Solicitors full participation in the present proceedings, it was impossible to know whether or not there was any dispute about the medical evidence or about Mr Ys best interests, and as a result Mr Ys article 6 rights were eroded to the point that his article 2 rights were afforded no effective protection.
+An argument is also advanced in reliance upon article 14, which it is said will be breached because a patient in Mr Ys position unjustifiably has less protection than an adult who has capacity and is terminally ill, the latter having the protection in relation to assisted dying afforded by section 2 of the Suicide Act 1961 (which makes it an offence to do an act capable of encouraging or assisting a suicide).
+It is important to note some of the special features of PDOC cases which in the Official Solicitors submission necessitate court involvement.
+He stresses the particular vulnerability of patients with PDOC, the difficulty in assessing the level of a persons consciousness, and the dangers of a wrong diagnosis or a wrong conclusion about what is in the persons best interests.
+He invites attention to examples of diagnostic errors in the decided cases where, for example, a patient has been thought to be in a permanent vegetative state but found later to be in a minimally conscious state.
+He submits that, although decisions about withdrawing treatment have to be made in relation both to patients with PDOC, and patients in intensive care with life limiting illnesses or injuries, the two categories of patient are different.
+The patient with PDOC may be clinically stable and may live for a prolonged period with only appropriate nursing care, hydration and nutrition, whereas the patient in intensive care may require more active medical intervention and support and may face death within hours or days.
+Furthermore, it is suggested that there is a particular concern about the morality of withdrawing CANH, which many might see as basic care, as opposed to certain other types of treatment.
+Lord Brandons reasoning at p 56 of In re F (Mental Patient: Sterilisation) (supra) (where he identified a number of special features which made the involvement of the court highly desirable) applies equally to PDOC cases, it is submitted.
+Similarly in point is Lord Lowrys concern, expressed in the Bland case (supra), that without court oversight, the doctor will be judge in his own cause.
+In addition, there is a danger, it is said, that the doctor may persuade family members who might not have the resources (emotional or financial) to question the doctors decision.
+Far from the need for independent scrutiny having diminished since the Bland case, Mr Gordon submits that it has increased as the growing understanding of disorders of consciousness has revealed the shortcomings of the assessments that have to be carried out.
+Discussion
+Permeating the determination of the issue that arises in this case must be a full recognition of the value of human life, and of the respect in which it must be held.
+No life is to be relinquished easily.
+As Baroness Hale said at para 35 of Aintree University Hospitals NHS Foundation Trust v James (supra): The authorities are all agreed that the starting point is a strong presumption that it is in a persons best interests to stay alive.
+And yet there may come a time when life has to be relinquished because that is in the best interests of the patient.
+The situation of Mr Y, and the ordeal through which his family has been going, serve as a solemn reminder of how illness may confront any one of us at any time and of the difficulties that face the patient, his family, and the medical staff whose job it is to do the best that they can for them.
+As Lord Browne Wilkinson said in Blands case (p 877), the questions for us are questions of law, [b]ut behind the questions of law lie moral, ethical, medical and practical issues of fundamental importance to society.
+The weight of that consideration anchors the legal decisions which I would make.
+Before turning to the central questions in the case, it is worth restating the basic position with regard to medical treatment, because it is upon this foundation that everything else is built.
+Although the concentration is upon the withdrawal of CANH, it must be kept in mind that the fundamental question facing a doctor, or a court, considering treatment of a patient who is not able to make his or her own decision is not whether it is lawful to withdraw or withhold treatment, but whether it is lawful to give it.
+It is lawful to give treatment only if it is in the patients best interests.
+Accordingly, if the treatment would not be in the patients best interests, then it would be unlawful to give it, and therefore lawful, and not a breach of any duty to the patient, to withhold or withdraw it.
+For a recent authoritative statement to this effect, see the Aintree case, although I would add that if a doctor carries out treatment in the reasonable belief that it will be in the patients best interests, he or she will be entitled to the protection from liability conferred by section 5 of the MCA 2005 (see para 36 above).
+It is also important to keep in mind that a patient cannot require a doctor to give any particular form of treatment, and nor can a court (see, for example, R (Burke) v General Medical Council at paras 50 and 55, and the Aintree case at para 18).
+I turn then to the core issue, commencing with a consideration of what, if any, requirements are imposed by domestic law.
+This consideration must start with the Bland case.
+In my view, there can be no question of the House of Lords there having imposed a legal requirement that in all cases of PVS (or any other form of prolonged disorder of consciousness) an application must be made to the court before CANH can be withdrawn.
+The scene had been set in In re F (Mental Patient: Sterilisation), where consideration was given to whether it was necessary to seek a declaration before carrying out a sterilisation operation on a woman who could not consent to the procedure herself.
+This was the case in which Lord Brandon set out the six features which made it highly desirable to seek the involvement of the court as a matter of good practice, five of which features the Official Solicitor relies upon in his present argument.
+That none of their Lordships in In re F considered that they were laying down a common law requirement to apply to the court is put beyond doubt by the speech of Lord Griffiths.
+It will be recalled that he would have been inclined to make it a legal requirement to seek the sanction of the court in all cases, and thought that the common law could be adapted to do so, but was deterred because the other members of the House considered that this would be making new law and inappropriate.
+In re F was very much in the minds of their Lordships in the Bland case, as can be seen from their speeches, and the approach they took to the question of court involvement was similar to that taken in In re F.
+There was no suggestion that the common law was now being developed in the sort of way that Lord Griffiths had eschewed in In re F.
+It was made quite clear that it was as a matter of practice that guidance should be sought from the court by way of declaratory relief, the practice of applying being desirable.
+It was contemplated that the President of the Family Division would keep matters under review and it was hoped that he would, in time, be able to limit applications for declarations to cases where there was a special need; this would have been difficult had the House of Lords created a legal requirement of a declaration in every case.
+The position was underlined in R (Burke) v General Medical Council (supra) where the Court of Appeal expressly rejected the argument that there was a legal duty to seek a declaration from the court before withdrawing artificial nutrition and hydration from a patient in PVS, affirming that the House of Lords in Blands case had recommended as a matter of good practice that reference be made to the court.
+Mr Gordon submits that the Court of Appeal was not there addressing the same issue as this court must now address, namely the protection of the vulnerable class of patients with PDOC, and that it had only been addressed on the situation of PVS patients in passing.
+I do not consider that Burkes case can be removed from the picture in this way.
+It seems to me to be an accurate statement of the legal position and of relevance to the issue before us.
+Accordingly, when the Mental Capacity Act 2005 came into force in 2007, there was no universal requirement, at common law, to apply for a declaration prior to withdrawing CANH.
+Mr Sachdeva, for the respondents, argues that it would be inconsistent with the statutory regime established by Parliament in the MCA 2005 to have such a requirement.
+The Act makes provision for decisions to be taken on behalf of those who lack capacity, based upon what is in their best interests, without involving a court.
+By section 5, subject of course to the impact of any relevant lasting power of attorney or advance decision to refuse treatment, a clinician who treats a patient in accordance with what he reasonably believes to be the patients best interests does not incur any liability, in relation to the treatment, that he would not have incurred if the patient had had capacity to consent and had consented to it.
+Provision is made for the court to make decisions about personal welfare where necessary, but the Act does not single out any sub class of decisions which must always be placed before the court, and there is no requirement for the Official Solicitor to be involved in best interest decisions relating to serious medical treatment.
+There is an attraction to Mr Sachdevas argument that the MCA 2005 is a complete statutory code but, had there been a common law requirement of court involvement by the time it was passed, I think I might nonetheless have been prepared to accept that it could have survived the silence of the Act on the subject.
+However, as there was no pre existing common law requirement, the point does not arise for decision.
+The absence of any requirement in the statute of the type for which the Official Solicitor contends is nevertheless of interest, given the recommendations of the Law Commission Report No 231 which brought it to attention as one of the possible options, and given that the Act is based upon that report.
+In contrast to the statute itself, the Mental Capacity Act 2005 Code of Practice does speak of applications to court in cases such as the present, but is contradictory in what it says about them.
+Paras 5.33 and 5.36 speak in terms of an application being made if there is any doubt or dispute about the doctors assessment of the patients best interests.
+Although para 6.18 suggests that the court has to make/must be asked to make the decision about withholding or withdrawing artificial nutrition and hydration from a patient in PVS, that statement seems to have been derived from the case law, which dealt only in terms of good practice, not of legal obligation.
+And paras 8.18 and 8.19, to which para 6.18 invites reference, say that an application should be made to the court and that as a matter of practice such cases should be put to the Court of Protection for approval, referring to a case law requirement to seek a declaration, the source of which is given as the Bland case.
+A Code in these rather ambiguous terms, plainly attempting to convey what the cases have so far decided, cannot extend the duty of the medical team beyond what the cases do in fact decide is incumbent upon them.
+Whatever the weight given to the Code by section 42 of the MCA 2005, it does not create an obligation as a matter of law to apply to court in every case.
+Practice Direction 9E which accompanied the Court of Protection Rules 2007 said that decisions about the proposed withholding or withdrawal of artificial nutrition and hydration from a person in a persistent vegetative state or a minimally conscious state should be brought to court.
+It is understandable that the ad hoc Rules Committee decided that, in so far as the practice direction purported to direct which cases had to be brought to court, it went beyond its proper scope; a practice direction cannot establish a legal obligation when none exists already, see U v Liverpool City Council (Practice Note) [2005] 1 WLR 2657, para 48.
+In any event, as no equivalent practice direction accompanies the Court of Protection Rules 2017, it is not necessary to delve into the matter further.
+No requirement to apply to court can be found in the post MCA 2005 case law either.
+The decision of Baker J in In re M (Adult Patient) (Minimally Conscious State: Withdrawal of Treatment) does not assist because it proceeded upon the basis that the Bland case had established that all decisions about the proposed withholding or withdrawal of CANH had as a matter of law to be brought to court and I would not interpret the Bland case in this way.
+The view of King LJ, expressed obiter in the Court of Appeal in In re Briggs [2018], that treating doctors can take a decision without recourse to court where there is no dispute about it should, however, be accorded weight.
+This is so even allowing for the possibility raised by Mr Gordon that the court may not have had full argument on the subject and may not have been referred to all the relevant passages in the Code, as King LJ spoke only of one of the less prescriptive provisions.
+It is important to note the views of those who, like her, have long experience in the Family Division where life and death issues are regularly litigated.
+Peter Jackson Js judgment in In re M (Incapacitated Person: Withdrawal of Treatment) (given after the Court of Appeals decision in the Briggs case) is also of assistance, particularly for the judges analysis of why, in his view, the decision as to what was in Ms best interests could have been taken without reference to the court.
+Mr Gordon points out that the Official Solicitor was not formally involved in that case and that there was no oral argument on the topic.
+However, as Peter Jackson J set out in para 30, he did invite and receive a substantial skeleton argument prepared by leading and junior counsel on behalf of the Official Solicitor which, he said, (among other things) trenchantly asserts that an application to court should be made in every case of proposed withdrawal of CANH, unless there is a valid advance directive.
+There is no doubt, therefore, that Peter Jackson J will have been made aware of the arguments that ran counter to the view he ultimately formed.
+Mr Gordon advances four respects in which he says the judge went wrong, namely: (1) he failed to recognise that PDOC patients are distinct from other patients, (2) he mistakenly attributed the delay to the proceedings when the majority of it appears to have been caused by other factors, (3) he failed to see that matters are very different when an advance decision has been made pursuant to section 24 of MCA 2005, and (4) he failed to recognise that if there is no requirement for court involvement, the article 2 requirement identified in Lambert v France for regulations compelling hospitals to adopt appropriate measures for the protection of patients lives will not be satisfied.
+For the most part, these are issues which arise as part of the Official Solicitors argument before this court and the reasons why I do not find them compelling will therefore appear in due course.
+There being, therefore, in my view, no requirement in domestic law for an application to court of the type that the Official Solicitor says is imperative for the protection of patients, the next question is whether the ECHR generates a need for an equivalent provision to be introduced.
+To my mind, the answer is a clear no.
+The first port of call is the landmark Grand Chamber case of Lambert v France on the French collective procedure which, it will be recalled, provided for the doctor to take the decision, with no application to court required, yet satisfied the ECtHR as being sufficiently protective of the articles 2 and 8 rights there engaged.
+I set out in a little detail earlier (para 71) what the French procedure required and it bears a significant resemblance to the procedure set out in the medical guidance in this country.
+In each case, the context for the decision is similar in that the French article R.4127 37 para I says that the doctor can decide to withhold or discontinue treatments qui apparaissent inutiles, disproportionns ou qui nont dautre objet ou effet que le maintien artificiel de la vie, and para 5.31 of the Mental Capacity Act Code speaks of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery.
+The French code requires the doctor to consult with the care team, and to take into account any wishes expressed by the patient and the views of people close to him, and the same is required by the MCA 2005 and the medical guidance here.
+An independent consultants opinion is required in France and should also be sought in this country.
+The court is available if necessary in France as it is here.
+As I have said, Lambert v France was not a central feature of the Official Solicitors written case, but as he developed his argument in oral submissions, Mr Gordon sought to distinguish the decision on the basis that France has a formally prescribed procedure with guarantees and we do not.
+To comply with the ECHR, a system must have a prescribed procedure, he says, and the sort of professional guidance that we have in this country will not suffice.
+The ECtHR has repeatedly set out certain factors that it considers relevant to the question of administering or withdrawing medical treatment.
+They can be found in para 143 of Lambert v France (see para 69 above), and also in Glass v United Kingdom, Burke v United Kingdom, Gard v United Kingdom, and Afiri and Biddarri v France.
+The first of those factors is the existence in domestic law and practice of a regulatory framework compatible with the requirements of article 2, which no doubt is (quite properly) the foundation of Mr Gordons submission that a prescribed procedure is required.
+Where I differ from Mr Gordon is in his assertion that the system in this country is not what the ECtHR was looking for.
+True it is that in France there is a comprehensive legislative framework, set out in the Code de la sant publique, whereas the same cannot be said for our domestic law.
+However, we too have provisions designed to protect the human rights of patients and their families, and I have no difficulty in viewing the combined effect of the MCA 2005, the Mental Capacity Act Code, and the professional guidance, particularly that emanating from the GMC, as a regulatory framework.
+The basic protective structure is established by the MCA 2005, which I have described above.
+An advance decision about life sustaining treatment can be taken in accordance with sections 24 to 26 and will be respected.
+Similarly, a proper role is established for lasting powers of attorney by section 9 and the other sections associated with it.
+Where the decision is taken by a doctor, section 5 establishes the conditions that must be satisfied if the doctor is to be protected from liability.
+It directs the focus firmly to the best interests of the patient, and that imports the provisions of section 4 which include taking into account the perspective that the patient would have on the decision if he had capacity and the views of those with an interest in the patients welfare.
+Section 4(5) imposes the safeguard that the person making the decision must not be motivated by a desire to bring about his death.
+Section 37 makes provision for an IMCA to represent the patient where appropriate, and sections 15 to 17 ensure that application can be made to court for a decision about the patients welfare where necessary.
+Notwithstanding the contradictions in it with which I have already dealt, the Code contains valuable guidance, and regard must be had to it by virtue of section 42.
+The passages that I referred to earlier are only a small fraction of the Code but it will be noted from them that, for example, it commends multi disciplinary meetings when making healthcare and treatment decisions, and speaks about recording decisions and the reasons for them.
+It also expressly provides (see para 5.31, quoted above) that when making decisions regarding life sustaining treatment, healthcare and social care staff should refer to relevant professional guidance.
+Given the statutory framework within which the GMC operates, I would single out its guidance to the medical profession as undeniably part of the established regulatory framework.
+As I have set out above, it has provided its own individual guidance in 2010, and has joined with the BMA and RCP to provide supplementary Interim Guidance in 2017, with final guidance planned for 2018.
+The second of the factors to which consistent reference has been made by the ECtHR is whether account has been taken of the patients previously expressed wishes and those of people close to him, as well as the opinions of other medical personnel.
+The MCA 2005 requires this to happen, and is reinforced by the professional guidance available to doctors.
+The third factor that features consistently in the ECtHRs evaluation is the possibility of approaching the courts in the event of doubts as to the best decision to take in the patients interest and, of course, that possibility exists in this country.
+As Peter Jackson J said in In re M (Incapacitated Person: Withdrawal of Treatment) at para 38, those considering withdrawal of CANH should not hesitate to approach the Court of Protection in any case in which it seems to them to be right to do so.
+The opportunity to involve the court is available whether or not a dispute is apparent, and is of particular benefit where the decision is a finely balanced one.
+No one would discourage an application in any case where it is felt that the assistance of the court would be valuable.
+And if a dispute has arisen and cannot be resolved, it must inevitably be put before the court.
+Mr Gordon characterises Lambert as a case about the facts, which tells us nothing about first principles.
+He submits, also, that the article 6 argument that he advances was not put to the court in this or any of the other ECtHR cases.
+This is not how I see the case of Lambert or the ECtHR jurisprudence generally.
+The Lambert decision forms part of a consistent line of Strasbourg decisions and it tells us, in my view, that the ECtHR does not regard it as problematic, in principle, that a decision to withhold or withdraw CANH from patient with a prolonged disorder of consciousness should be made by a doctor, without obligatory court involvement.
+If there be any doubt about the implications of this for the present case, reference to Burke v The United Kingdom removes it.
+The ECtHR was there required to consider our domestic provisions, even before they were bolstered by the MCA 2005, specifically focusing on the GMC guidance then in force.
+Breaches of articles 2, 3, 8 and 14 were alleged, and it was one of the applicants complaints that the GMC guidance failed to spell out a legal requirement to obtain prior judicial sanction.
+The ECtHR proceeded upon the basis that article 2 imposes positive obligations on the State to make regulations compelling hospitals to adopt appropriate measures for the protection of their patients lives, yet no suggestion was made that such regulations were lacking in the United Kingdom.
+The argument that there was insufficient protection because a doctor might decide to withdraw CANH without being under an obligation to obtain the approval of the court was expressly rejected, and I have already cited (see para 33 above) what the ECtHR said in so doing.
+Recognising the practical realities, it observed that a more stringent legal duty would be prescriptively burdensome, resulting in some medical staff being constantly in court, and would not necessarily entail any greater protection.
+As for the Official Solicitors article 6 argument, even if that particular argument was not put before the ECtHR in terms, the question of hearing rights was an obvious component in the arguments that were advanced in Burkes case, and there is no reason to suppose that the outcome would have been different if there had been a specific article 6 complaint.
+The same might be said of Lamberts case, where article 6 was indeed referred to, but only by way of a complaint that the doctor who took the decision was not impartial, not as part of a wider argument that court involvement is required in every case.
+Moreover, I would accept Mr Sachdevas argument that what engages article 6 is a disagreement or a question of law and/or fact in dispute, and that, in the light of the safeguards to be found in the MCA 2005 and the Code, together with the professional guidance, there is no basis for the Official Solicitors suggested approach of engaging article 6 by assuming in every case that there is a dispute.
+Of the Official Solicitors ECHR arguments, it only remains to deal with article 14.
+It is not in point, in the present case, in my view.
+The analogy that Mr Gordon seeks to draw between someone in Mr Ys position and a person with capacity who seeks assistance in bringing his or her life to an end is not a proper analogy.
+There is, as Mr Sachdeva says, a critical distinction in both the domestic and the Strasbourg jurisprudence, between an act which constitutes the intentional taking of life and therapeutic abstention from treatment.
+We are presently dealing with the latter, whereas assisted dying concerns the former.
+It is worth observing also that an article 14 argument was advanced in Burkes case before the ECtHR and was rejected as manifestly ill founded.
+The argument was to the effect that the applicant was treated less favourably on account of his disease than others who need CANH but are not suffering from a disease that causes them to lose competence to influence their treatment.
+The court observed that neither a competent nor an incompetent patient can require a doctor to give treatment that the doctor considers is not clinically justified, thus no difference of treatment arises.
+In so far as a competent patient is able to participate in the consultation process and an incompetent patient is not, the court said that the patients are not in a relatively similar situation.
+It remains to stand back from this intense focus upon the law, in order to consider the issue in its wider setting.
+In so doing, it is necessary to exercise the restraint that is required of a court when it ventures into areas of social and ethical uncertainty, and especially when it does so in the abstract, setting out views which will be of general application (as is necessarily so in this case) rather than resolving a clearly defined issue of law or fact that has arisen between the litigants appearing before it.
+Lord Goff remarked, in the passage at p 871 of the Bland case which I have set out at para 22 above, upon how frequently doctors have to make decisions which may affect the continued survival of their patients, and how experienced they are in this respect.
+Judges have also developed experience in dealing with life and death decisions, but it is experience of a different sort from that of the medical team which actually treats the patient, and of the professional bodies responsible for regulating and guiding them, and this limitation must be recognised and taken into account.
+It has been of particular assistance to have, from the written submissions of the intervenors, an insight into the practicalities of caring for patients who are critically ill, and also some idea of the large number of patients who might be affected in some way by the decision in the instant case.
+It is important to acknowledge that CANH is more readily perceived as basic care than, say, artificial ventilation or the administration of antibiotics, and withholding or withdrawing it can therefore cause some people a greater unease.
+However, it was decided as far back as the Bland case that CANH is in fact to be seen as medical treatment.
+It is not easy to explain, therefore, why it should be treated differently from other forms of life sustaining treatment, and yet that is the consequence of the legal position for which the Official Solicitor contends.
+Furthermore, the Official Solicitors focus is on only one sub set of patients who are, for one reason or another, unable to take their own decisions about their medical care and in respect of whom life sustaining treatment is under consideration.
+This is a point that Peter Jackson J made in In re M (Incapacitated Person: Withdrawal of Treatment), and it emerges with some force from the written submissions of the BMA and of the ICS and the FICM.
+It is not only those, such as Mr Y, who suffer an acute episode and are then stabilised, who may require CANH.
+The need for it can arise also, for example, in the advanced stages of a degenerative neurological condition such as Huntingtons disease or multiple sclerosis, or in the advanced stages of dementia, where there may be a recognised downward trajectory.
+Presently, the BMA say, in the case of patients who have suffered a severe stroke, or are significantly cognitively impaired but conscious, or are suffering from a degenerative neurological condition or other condition with a recognised downward trajectory, decisions to withhold or withdraw CANH are made on a regular basis without recourse to the courts.
+The BMA can see no principled or logical reason for requiring court review in relation to patients with PVS and MCS but not for a patient with a different condition.
+Similarly, it can find no logical reason why one form of medical treatment, CANH, is treated differently from other forms of medical treatment such as artificial ventilation.
+The submissions of the ICS and FICM are illuminating as to what occurs in units delivering critical care to patients.
+Most admissions to such units occur as an emergency, without the patient having made any advance decision about treatment, and possibly already so unwell that he or she has impaired consciousness or is unable to communicate wishes.
+Most decisions relating to medical treatment in the critical care setting, including as to whether life sustaining treatment is withheld or withdrawn, have to be made without the participation of the patient.
+They are, we are told, almost invariably taken on the basis of (in England & Wales) best interests and (in Scotland) benefit, on the basis of consensual decision making as between the clinical team and the patients family and carers.
+In that critical care setting, CANH is not considered differently from any other form of life sustaining treatment.
+This is said to reflect the reality in critically ill patients that it is the withdrawal of invasive or non invasive ventilation, vasoactive medical and renal replacement therapy, and the double effect from administration of medications to ensure patient comfort towards the end of life, that leads to the natural death of the patient, rather than cessation of CANH.
+It is likely, where CANH is withdrawn from a patient who is clinically stable but suffering from a prolonged disorder of consciousness, that death will result from the withdrawal of CANH, so to this extent there is a difference between the two groups of patients.
+However, once CANH is seen as medical treatment, there is a parallel between the cases.
+In any event, I have difficulty in accepting that there are readily apparent and watertight categories of patient, with PDOC patients clearly differentiated from, say, patients with a degenerative neurological condition or critically ill patients, in such a way as to justify judicial involvement being required for the PDOC patients but not for the others.
+The dilemmas facing the medical team and those close to the patient may well be very similar in each of these cases.
+It would be a mistake to think, for example, that the intensive care doctor simply does whatever is necessary to stop the patient dying, no matter what the cost to the patient, any more than does the doctor looking after a PDOC patient or the stroke patient or the patient with Huntingtons disease.
+In all of these cases, the medical team take their decisions as to treatment, whether it is CANH, or some other form of treatment such as artificial ventilation or cardio pulmonary resuscitation or the administration of antibiotics, by determining what is in the patients best interests.
+In so doing, the doctors will often have difficult diagnoses to make, reaching a prognosis may be challenging, and the evaluation of the patients best interests may not be entirely straightforward.
+All these tasks may call for considerable professional skill and individual judgement.
+Furthermore, although the Official Solicitor submits that it should be possible, with proper case management, to obtain a decision from the court speedily, giving an example of a case which was concluded within eight weeks, I fear that that is an over optimistic view of the situation.
+I note that even in that case, the delay would have been about six weeks longer had it not been for the parties shortening their time estimate (it would seem in part by removing from it the time for the judge to prepare the judgment) and another case coming out of the judges list.
+Even allowing for Peter Jackson J to have over estimated the precise period of delay in obtaining an order in In re M (Incapacitated Person: Withdrawal of Treatment), the facts of that case exemplify the dangers.
+The pressure of business in the courts charged with handling such cases is significant and delays are almost inevitable.
+As King LJ observed in In re Briggs, quite apart from the pressure that court cases place on the overstretched resources of NHS trusts, they add greatly to the strain on families facing acutely distressing decisions.
+In a case where all the proper procedures have been observed and there is no doubt about what is in the best interests of the patient, there is much to be said for enabling the family and the patient to spend their last days together without the burden and distraction, and possibly expense, of court proceedings.
+In addition, I do not disagree with Peter Jackson Js observation that there is a risk that the need to go to court might deflect clinicians and families from making true best interests decisions and might lead in some cases to inappropriate treatment continuing by default.
+Equally, it is not inconceivable that it might, as the BMA suggest, generate a reluctance, in some cases, to start CANH because of the procedures attending its withdrawal.
+The Official Solicitor submits that the challenges of diagnosis have increased since the Bland case, rather than the way becoming clearer as might have been expected.
+The difficulties in diagnosis are underlined in the submissions of the intervenors, Care Not Killing, and the report of Professor Sturman which accompanies them, but are also apparent from other material available to us.
+Medical science, continually developing, cannot always provide answers, and greater knowledge can produce yet more questions.
+Developments in this area of medicine include the ability to differentiate between vegetative state and minimally conscious state, and improvement in the outcomes for some individual patients.
+These changes inevitably create new challenges of diagnosis and management, new uncertainties, for the medical profession.
+The situation is not, however, on a par with that which faced the House of Lords in the Bland case.
+The survival of patients such as Anthony Bland, then so unprecedented, is now a well established feature of medical practice.
+The documentation supplied to us shows that the difficulty that there is in assessing the patient and in evaluating his or her best interests is well recognised.
+The process is the subject of proper professional guidance, covering vitally important matters such as the involvement in the decision making process of a doctor with specialist knowledge of prolonged disorders of consciousness, and the obtaining of a second opinion from a senior independent clinician with no prior involvement in the patients care.
+The second opinion, as contemplated in the guidance (see paras 79 and 80 above, for example), is, in my view, a crucial part of the scrutiny that is essential for decisions of this sort, and the guidance sets parameters which should ensure that it is an effective check, in that the clinician who provides the second opinion must (so far as reasonably practical in the circumstances of the case) be external to the organisation caring for the patient, and is expected to carry out his or her own examination of the patient, consider and evaluate the medical records, review information about the patients best interests, and make his or her own judgement as to whether the decision to withdraw (or not to start) CANH is in the best interests of the patient.
+Thus the interests of patients and their families are safeguarded, as far as possible, against errors in diagnosis and evaluation, premature decisions, and local variations in practice.
+If, at the end of the medical process, it is apparent that the way forward is finely balanced, or there is a difference of medical opinion, or a lack of agreement to a proposed course of action from those with an interest in the patients welfare, a court application can and should be made.
+As the decisions of the ECtHR underline, this possibility of approaching a court in the event of doubts as to the best interests of the patient is an essential part of the protection of human rights.
+The assessments, evaluations and opinions assembled as part of the medical process will then form the core of the material available to the judge, together with such further expert and other evidence as may need to be placed before the court at that stage.
+In conclusion, having looked at the issue in its wider context as well as from a narrower legal perspective, I do not consider that it has been established that the common law or the ECHR, in combination or separately, give rise to the mandatory requirement, for which the Official Solicitor contends, to involve the court to decide upon the best interests of every patient with a prolonged disorder of consciousness before CANH can be withdrawn.
+If the provisions of the MCA 2005 are followed and the relevant guidance observed, and if there is agreement upon what is in the best interests of the patient, the patient may be treated in accordance with that agreement without application to the court.
+I would therefore dismiss the appeal.
+In so doing, however, I would emphasise that, although application to court is not necessary in every case, there will undoubtedly be cases in which an application will be required (or desirable) because of the particular circumstances that appertain, and there should be no reticence about involving the court in such cases.
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+This appeal concerns the statutory right of appeal against decisions by the Secretary of State for the Home Department (the Secretary of State) to refuse protection claims and human rights claims under Part 5 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) as amended.
+The particular question for decision is as follows: Where a person has already had a protection claim or a human rights claim refused and there is no pending appeal, do further submissions which rely on protection or human rights grounds have to be accepted by the Secretary of State as a fresh claim in accordance with rule 353 of the Immigration Rules if a decision in response to those representations is to attract a right of appeal under section 82 of the 2002 Act?
+It is a conspicuous feature of litigation in the field of immigration and asylum in this jurisdiction that those whose protection claims or human rights claims have already been refused seek to make further applications adducing further submissions or evidence in support.
+It is necessary that provision be made for such renewed applications for which there is a sound basis, not least because circumstances may change significantly and unforeseeably following the rejection of a claim.
+In R v Secretary of State for the Home Department, Ex p Onibiyo [1996] QB 768 Sir Thomas Bingham MR noted (at pp 781 782) that, for example, it is not hard to imagine cases in which an initial claim for asylum might be made on insubstantial, or even bogus, grounds, and be rightly rejected, but in which circumstances would subsequently arise or come to light showing a threat of a kind requiring the grant of asylum.
+As he observed, a scheme of legal protection which could not accommodate that possibility would be seriously defective.
+In appropriate cases, it will be necessary to afford access to the statutory system of appeals when a second or subsequent submission is rejected.
+Nevertheless, it is necessary to protect such a scheme of legal protection from abuse.
+There is, therefore, a need to exclude from the statutory system of appeals second or successive applications which are made on grounds which have previously been rejected or which have no realistic prospect of success, and which are often advanced simply in order to delay removal from the United Kingdom.
+The challenge is to provide a system which can deal fairly and effectively with all such applications while also complying with the United Kingdoms international obligations.
+The facts
+The appellant, Mr Jamar Robinson, is a national of Jamaica who was born on 14 May 1991.
+He arrived in the United Kingdom on 9 October 1998 when he was seven years old.
+He was given leave to enter until 9 April 1999 and then remained in the United Kingdom without leave.
+In 2005, at the age of 13, he applied for indefinite leave to remain in the United Kingdom as a dependant of his aunt who had made an application under a one off exercise to allow families who have been in the United Kingdom for three years or more to stay.
+His aunt was granted indefinite leave to remain on 13 May 2011.
+The appellants application was refused as part of later deportation proceedings.
+The appellant has a number of criminal convictions.
+The index offences which triggered deportation proceedings were two robberies for each of which he was sentenced on 20 April 2011 to 18 months detention, to run concurrently.
+At sentence he was 19 years of age.
+On the same occasion he was convicted of failing to comply with the requirements of a previous community order.
+On 31 August 2011, aged 20, he was convicted of an offence of robbery and an offence of theft, in respect of which he was sentenced to terms of 40 months detention and 16 months detention respectively, to run concurrently.
+On 12 October 2012, aged 21, he was convicted of an offence of violent disorder, committed while he was an inmate at HMP Feltham, for which he was sentenced to 12 months imprisonment.
+On 10 June 2011 he was notified by the Secretary of State of his liability to deportation.
+His previous legal representatives responded on 16 August 2011.
+On 17 July 2013 a deportation order was signed in respect of the appellant.
+He appealed to the First tier Tribunal (Immigration and Asylum Chamber) (FTT) against his proposed deportation.
+His appeal was based on his claimed right to respect for his private life in the United Kingdom.
+It was accepted that at that time 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) by the FTT and by the UT.
+He exhausted his rights of appeal on 1 May 2015.
+On 13 May 2015 the appellants previous solicitors made brief further submissions to the Secretary of State on his behalf.
+The focus of these submissions was that the appellants then partner was pregnant and due to give birth on 28 July 2015.
+The application did not explicitly request that the deportation order be revoked, nor did it explicitly make reference to human rights.
+The Secretary of State treated the further representations as an application to revoke the appellants deportation order on the basis that deportation would breach article 8 of the European Convention on Human Rights.
+She responded to those submissions in a letter of 23 June 2015.
+She concluded that deportation would not breach article 8.
+She refused to revoke the deportation order, and she decided that his submissions did not amount to a fresh human rights claim under rule 353 of the Immigration Rules.
+The appellants son was born on 26 July 2015.
+He is a British citizen by birth because his mother is British.
+The appellant then made further submissions to the Secretary of State on 28 July 2015 regarding the birth of his son and providing some documentation from the hospital.
+The Secretary of State responded to these further submissions in a letter dated 31 July 2015.
+Once again, the Secretary of State concluded that deportation of the appellant would not breach article 8 and that his further submissions did not amount to a fresh claim under rule 353 of the Immigration Rules.
+On 18 July 2015 the Secretary of State gave directions for the appellants removal to Jamaica on 9 August 2015.
+A request for temporary admission was made on 30 July 2015 in order to enable the appellant to visit his son.
+The enclosed documents included a statutory declaration from the appellant declaring that he is the childs father.
+The appellant was subsequently named as the father on the childs birth certificate.
+On 5 August 2015 the appellants solicitors gave notice of appeal to the FTT against the Secretary of States decision of 31 July 2015.
+In a decision dated 7 August 2015, promulgated on 10 August 2015, the FTT declined jurisdiction on the basis that there was no right of appeal against the decision of 31 July 2015.
+On 7 August 2015 the appellant made an application for permission to apply for judicial review of the Secretary of States decisions of 23 June 2015 and 31 July 2015 not to accept the further representations as fresh claims and the removal directions given on 18 July 2015.
+After the proceedings were lodged the Secretary of State confirmed that removal of the appellant would be deferred.
+The appellant applied to amend his grounds to include the FTT as second respondent and to challenge its decision of 7 August 2015 that the appellant had no right to appeal against the decision of 31 July 2015.
+UT Judge Allen granted the appellant permission to join the FTT and to amend his grounds.
+On 19 November 2015 UT Judge Eshun granted the appellant permission to apply for judicial review.
+The application for judicial review was heard by UT Judge Southern on 16 February 2016 who held that: the decisions of 23 June 2015 and 31 July 2015 were lawful with the Secretary of States letters were not refusals to revoke the the FTT had correctly decided that the appellant had no right of appeal (1) to the FTT; (2) appellants deportation order; and (3) regard to rule 353 of the Immigration Rules.
+He refused permission to appeal to the Court of Appeal.
+On 9 March 2016 the appellant applied to the Court of Appeal for permission to appeal.
+The Secretary of State sought to deport the appellant to Jamaica on 13 April 2016.
+On 12 April 2016 Rafferty LJ granted the appellant a stay on removal.
+On 2 December 2016 Underhill LJ, on consideration of the papers, granted permission to appeal to the Court of Appeal.
+On 4 May 2017 the Court of Appeal (Jackson, Hamblen and Flaux LJJ) dismissed the appellants appeal and refused permission to appeal to the Supreme Court.
+The appellant was granted a stay on removal pending final determination of his appeal.
+The Supreme Court granted permission to appeal by order dated 10 April 2018.
+The relevant legislation
+Part 5 of the 2002 Act in force immediately prior to the commencement of the Immigration Act 2014 (the 2014 Act) ie prior to 20 October 2014, provided in relevant part: 82.
+Right of appeal: general (1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal. (2) refusal of entry clearance, refusal of a certificate of entitlement In this Part immigration decision means refusal of leave to enter the United (a) Kingdom, (b) (c) under section 10 of this Act, (d) refusal to vary a persons leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain, (e) variation of a persons leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain, (f) revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom, (g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999 (c 33) (removal of person unlawfully in United Kingdom), (h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (c 77) (control of entry: removal), (ha) a decision that a person is to be removed from the United Kingdom by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006 (removal: persons with statutorily extended leave), (i) a decision that a person is to be removed from the United Kingdom by way of directions given by virtue of paragraph 10A of that Schedule (family), (ia) a decision that a person is to be removed from the United Kingdom by way of directions under paragraph 12(2) of Schedule 2 to the Immigration Act 1971 (c 77) (seamen and aircrews), (ib) a decision to make an order under section 2A of that Act (deprivation of right of abode), a decision to make a deportation order (j) under section 5(1) of that Act, and (k) under section 5(2) of that Act. refusal to revoke a deportation order 84.
+Grounds of appeal (1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds (c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellants Convention rights; that removal of the appellant from the (g) United Kingdom in consequence of the immigration decision would breach the United Kingdoms obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellants Convention rights. 92.
+Appeal from within United Kingdom: general (1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies. (4) This section also applies to an appeal against an immigration decision if the appellant (a) has made an asylum claim, or a human rights claim, while in the United Kingdom, or 94.
+Appeal from within United Kingdom: unfounded human rights or asylum claim (1) This section applies to an appeal under section 82(1) where the appellant has made an asylum claim or human rights claim (or both). (2) A person may not bring an appeal to which this section applies in reliance on section 92(4)(a) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded. 96.
+Earlier right of appeal (1) An appeal under section 82(1) against an immigration decision (the new decision) in respect of a person may not be brought if the Secretary of State or an immigration officer certifies (a) that the person was notified of a right of appeal under that section against another immigration decision (the old decision) (whether or not an appeal was brought and whether or not any appeal brought has been determined), (b) that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision, and (c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in an appeal against the old decision. (2) An appeal under section 82(1) against an immigration decision (the new decision) in respect of a person may not be brought if the Secretary of State or an immigration officer certifies (a) that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision, (b) that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice, and that, in the opinion of the Secretary of (c) State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice. 113.
+Interpretation (1) In this Part, unless a contrary intention appears asylum claim means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom would breach the United Kingdoms obligations under the Refugee Convention, human rights claim means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c 42) (public authority not to act contrary to Convention) as being incompatible with his Convention rights, the Refugee Convention means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and its Protocol,
+Part 5 of the 2002 Act was amended with effect from 20 October 2014 in a number of respects.
+Section 82(1) now provides: 82.
+Right of appeal to Tribunal (1) A person (P) may appeal to the Tribunal where the Secretary of State has decided to the Secretary of State has decided to (a) refuse a protection claim made by P, (b) refuse a human rights claim made by P, or (c) revoke Ps protection status. the Secretary of State has decided to (1) An appeal under section 82(1)(a) (refusal of protection claim) must be brought under one or more of the following grounds (a) that removal of the appellant from the United Kingdom would breach the United Kingdoms obligations under the Refugee Convention; Section 84 of the 2002 Act now provides: 84.
+Grounds of appeal (b) that removal of the appellant from the United Kingdom would breach the United Kingdoms obligations in relation to persons eligible for a grant of humanitarian protection; (c) that removal of the appellant from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention). (2) An appeal under section 82(1)(b) (refusal of human rights claim) must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998.
+There were consequential amendments to sections 85, 86, 92, 94 and 96.
+Substantive changes were made to section 92 which now provides: 92.
+Place from which an appeal may be brought or continued (1) This section applies to determine the place from which an appeal under section 82(1) may be brought or continued. (2) In the case of an appeal under section 82(1)(a) (protection claim appeal), the appeal must be brought from outside the United Kingdom if (a) the claim to which the appeal relates has been certified under section 94(1) or (7) (claim clearly unfounded or removal to safe third country), or (b) Otherwise the appeal must be brought from within the United Kingdom. (3) In the case of an appeal under section 82(1)(b) (human rights claim appeal) where the claim to which the appeal relates was made while the appellant was in the United Kingdom, the appeal must be brought from outside the United Kingdom if (a) the claim to which the appeal relates has been certified under section 94(1) or (7) (claim clearly unfounded or removal to safe third country) or section 94B (certification of human rights claims made by persons liable to deportation), or Otherwise, the appeal must be brought from within the United Kingdom.
+In the case of an appeal under section 82(1)(b) (4) (human rights claim appeal) where the claim to which the appeal relates was made while the appellant was outside the United Kingdom, the appeal must be brought from outside the United Kingdom.
+Section 94 now provides in relevant part: 94.
+Appeal from within United Kingdom: unfounded human rights or protection claim (1) The Secretary of State may certify a protection claim or a human rights claim as clearly unfounded.
+The definition of human rights claim in section 113 was amended by the 2014 Act and now provides as follows: human rights claim means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom or to refuse him entry to the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c 42) (public authority not to act contrary to Convention).
+Immigration Rules, rule 353
+The Immigration Rules have contained provisions in respect of previously refused applications since May 1994 (HC 395, rule 346).
+A rule in substantially the same form as the current rule 353 has been in force since it was introduced by HC 1112 in October 2004. (See para 36, below.) The current rule 353 of the Immigration Rules HC 1025, which has been in force since February 2015, provides: 353.
+When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim.
+The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered.
+The submissions will only be significantly different if the content: had not already been considered; and (i) taken together with the previously considered (ii) material, created a realistic prospect of success, notwithstanding its rejection.
+This paragraph does not apply to claims made overseas.
+The decision of the Court of Appeal
+In the Court of Appeal Jackson LJ, with whom the other members of the court agreed, rejected a submission on behalf of the appellant that human rights claim in section 82(1)(b) of the 2002 Act as amended means any human rights claim and that its meaning is not confined to an original claim or a subsequent claim which constitutes a fresh claim within rule 353 of the Immigration Rules.
+He also rejected a submission that the Supreme Court considered precisely the same question in R (BA (Nigeria)) v Secretary of State for the Home Department [2009] UKSC 7; [2010] 1 AC 444 when construing the phrase a human rights claim in section 92(4)(a) of the 2002 Act as it then stood.
+The decision of the Supreme Court on the meaning of human rights claim in BA (Nigeria) did not apply to statutory provisions which determine whether a right of appeal exists at all.
+In his view, it would be an absurd reading of section 82, in either its previous or current form, to interpret it as permitting an applicant to make the same human rights claim over and over again, each time appealing to the FTT against the rejection of that claim.
+He concluded that a human rights claim in section 82(1)(b) of the 2002 Act must mean an original human rights claim or a fresh human rights claim which falls within rule 353 of the Immigration Rules.
+Submissions of the parties
+On this appeal the parties have made very detailed submissions orally and in writing for which the court is grateful.
+It seems to me, however, that Mr Michael Fordham QC on behalf of the appellant makes two essential submissions which lie at the heart of his case. (1) First, he submits that the Onibiyo line of authority which established that in the case of a second or successive submission it was for the Secretary of State to decide whether this constituted a fresh claim giving rise to a right to appeal did not survive the decision of the Supreme Court in BA (Nigeria), and that, accordingly, there is no longer any role for rule 353 of the Immigration Rules.
+In this regard he submits that this court should reject the reading of BA (Nigeria) favoured by Lord Neuberger of Abbotsbury MR in the Court of Appeal in R (ZA (Nigeria)) v Secretary of State for the Home Department [2010] EWCA Civ 926; [2011] QB 722. (2) Secondly, he submits that the amendments to Part 5 of the 2002 Act effected by the 2014 Act abrogate the control mechanism established by the Onibiyo line of authority and rule 353 of the Immigration Rules and that the words human rights claim as they appear in section 82(1)(b) of the 2002 Act following amendment by the 2014 Act are to be interpreted without reference to rule 353.
+On this basis he submits that any second or subsequent submission which is a human rights claim under section 113(1) attracts a right of appeal under section 82, notwithstanding that the individual has made a previous claim that removal would breach a relevant obligation, whether the same relevant obligation or a different one, whether on the same basis or a different one, whether with the same or different submissions and evidence, but subject however to the certification provisions in sections 94 and 96.
+In response on behalf of the Secretary of State, Sir James Eadie QC submits: (1) BA (Nigeria) does not establish that the words human rights claim as they appear in Part 5 of the 2002 Act are to be interpreted without reference to the Onibiyo line of authority or rule 353 of the Immigration Rules.
+The actual decision in BA (Nigeria) was that rule 353 had no further part to play for the purposes of section 92(4)(a) once there was an appeal against an immigration decision.
+It did not determine that the Secretary of State was no longer entitled to decide the prior question as to whether a second or subsequent submission constituted a claim at all.
+In his support he relies on the analysis of BA (Nigeria) by Lord Neuberger MR in ZA (Nigeria). (2) The amendments to the 2002 Act effected by the 2014 Act have not changed the position.
+It remains the case that there will only be an asylum or human rights claim to be determined if, in relevant cases, further submissions are considered to amount to a fresh claim.
+The Onibiyo line of authority
+In order to address the issues raised by this appeal it is necessary to consider in some detail the way in which a line of authority concerning second or subsequent submissions to the Secretary of State has developed.
+It starts in 1996 with the decision of the Court of Appeal (Sir Thomas Bingham MR, Roch and Swinton Thomas LJJ) in Onibiyo.
+The applicant had made an application for asylum under the Asylum and Immigration Appeals Act 1993 (1993 Act), based on the political activities of his father.
+The Secretary of State refused his application and his appeal under section 8(3)(b) of the 1993 Act was dismissed.
+The applicant then indicated that he was making a fresh claim for asylum based on his own association with the opposition in Nigeria.
+Rule 346, Statement of Changes in Immigration Rules (1994) (HC 395), which was then current, provided: When an asylum applicant has previously been refused asylum in the United Kingdom and can demonstrate no relevant and substantial change in his circumstances since that date, his application will be refused.
+The Home Office stated in a letter that it was of the view that the representations did not constitute a fresh claim for asylum and had been treated as further information to the original claim.
+The request for revocation of the deportation order against him was refused on the ground that there had not been any material change in circumstances since the previous refusal decision sufficient to justify revocation.
+The applicants solicitors took issue with this letter and submitted a notice of appeal to a special adjudicator under section 8(3)(b) of the 1993 Act.
+The Secretary of State maintained his position and in a subsequent letter explained that the first letter had not constituted a refusal of asylum but a consideration and dismissal of the further information provided.
+In the circumstances the Secretary of State had not made a fresh decision and the appeal was invalid.
+The applicant applied for judicial review.
+A preliminary question was whether a person may during a single uninterrupted stay in the United Kingdom make more than one claim for asylum within the 1993 Act.
+The Master of the Rolls, with whom the other members of the court agreed, rejected the submission of the Secretary of State that once a person had made a claim for asylum, been refused by the Secretary of State and unsuccessfully exercised his rights of appeal, that exhausted his legal rights.
+The obligation of the United Kingdom under the Refugee Convention not to return a refugee to a county where his life or freedom would be threatened for a Convention reason remained binding until the moment of return.
+Accordingly, three questions arose for consideration.
+First, what constitutes a fresh claim? Secondly, how and by whom is it decided whether a claim is a fresh claim or not? Thirdly, what are the procedural consequences of a decision that a claim is or is not a fresh claim?
+In response to the first question, it was not controversial that there had to be a significant change from the claim as previously presented, such as might reasonably lead a special adjudicator to take a different view.
+The acid test must always be whether, comparing the new claim with that earlier rejected, and excluding material on which the claimant could reasonably have been expected to rely in the earlier claim, the new claim is sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim despite the unfavourable conclusion reached on the earlier claim. (at pp 783H 784B) In response to the second question, rule 328 of the Statement of Changes in Immigration Rules made clear that all asylum applications would be determined by the Secretary of State in the first instance.
+In response to the third question, no particular difficulty arose where the Secretary of State treated the submission as a fresh claim, whether asylum was then granted or refused.
+In the latter case, the same consequences should follow as on a refusal of an initial claim.
+A problematic situation arose, however, where, as on the facts of that case, the Secretary of State did not recognise the submission as a fresh claim and, therefore, declined to take or omit to take any action which would trigger a right of appeal.
+It would clearly be open to the asylum seeker, in those circumstances, to have resort to the court to challenge that decision.
+However, a question of considerable difficulty was whether the court should approach this as a question of precedent fact or whether the decision should be susceptible to challenge only on Wednesbury principles.
+As the answer to the question was not determinative of the appeal, the Master of the Rolls proffered a tentative answer in favour of the latter view. (at pp 784D 785D)
+Following the decision in Onibiyo, rule 346 was amended to reflect the judgment in that case.
+The amended version provided: Where an asylum applicant has previously been refused asylum the Secretary of State will determine whether any further representations should be treated as a fresh application for asylum.
+The Secretary of State will treat representations as a fresh application for asylum if the claim advanced in the representations is sufficiently different from the earlier claim that there is a realistic prospect that the conditions set out in para 334 will be satisfied.
+In considering whether to treat the representations as a fresh claim, the Secretary of State will disregard any material which: is not significant; or is not credible; or (i) (ii) (iii) was available to the applicant at the time when the previous application was refused or when any appeal was determined. (CM 3365)
+In Cakabay v Secretary of State for the Home Department (Nos 2 and 3) [1999] Imm AR 176, after the appellants appeals against the refusal of asylum had been dismissed, he had submitted further evidence which the Secretary of State concluded did not constitute a fresh claim.
+The appellant purported to appeal against this decision.
+The Secretary of State successfully applied for a declaration that the appellate authorities had no jurisdiction in the matter.
+The judge, reviewing the decision on Wednesbury principles, also concluded that the Secretary of States decision could not be held to be unreasonable.
+The Court of Appeal (Peter Gibson, Schiemann and Potter LJJ) upheld the decision.
+Schiemann LJ explained that the statute made no express provision as to what is to be done in the case of repeated claims for asylum by the same person.
+Nevertheless, there was a need for categorisation and to distinguish between what he termed a repetitious claim and a fresh claim: In the case of a repetitious claim no more is required to be done: the first decision has ensured that the United Kingdom has complied with its obligations under the Convention.
+Section 6 of the 1993 Act creates no inhibition on the claimants removal: the Secretary of State has on the occasion of his decision on the first claim decided the repetitious claim.
+So far as the decision on the claimants repetitious application for leave to enter is concerned, the claimant will be told that leave has already been refused and that there is no need for any new decision. (at p 181) Despite the focus on repetitious claims, it is clear that the reasoning of Schiemann LJ applies equally to any further submissions that failed to meet the test in rule 346.
+Similarly, Peter Gibson LJ (at p 193) considered that if the representations amounted to no more than the same claim as that which had already failed, or if the criteria of rule 346 were not met, there would be no claim for asylum within the statute and therefore no appeal would lie under section 8(1) of the 1993 Act against a determination adverse to the asylum seeker that there had been no fresh claim.
+Consistently with what the Court of Appeal in Onibiyo had assumed to be correct, the court went on to hold that no appeal lay under section 8(1) of the 1993 Act from the determination of the Secretary of State that fresh representations do not amount to a claim for asylum.
+Schiemann LJ accepted that a categorisation decision has potentially severe consequences and that, in such a context, arguments based on the possibilities of abuse should not weigh heavily in matters of construction.
+Nevertheless, Parliament had not provided for an appeal on the merits against a categorisation decision (at p 185 186). (See also Peter Gibson LJ at p 194.)
+In this way the courts imposed a gloss on the operation of the statutory scheme which made no express provision for the handling of second or successive submissions.
+The effect of these decisions was that it was for the Secretary of State to decide whether further submissions amounted to a fresh claim.
+Where the Secretary of State had taken a rational decision that further submissions did not amount to a fresh claim for asylum under rule 346 of the Immigration Rules, there was no asylum claim to determine and therefore no need to make any decision to refuse leave to enter.
+In these circumstances, no right of appeal arose under section 8 of the 1993 Act.
+A categorisation decision was, however, open to challenge by judicial review.
+On 7 November 2002 Parliament enacted the 2002 Act, which effectively replaced the 1993 Act.
+The 2002 Act itself has subsequently been amended on a number of occasions.
+Part 5 of the 2002 Act concerns immigration and asylum appeals.
+Section 82 conferred a statutory right of appeal against an immigration decision and listed what constituted an immigration decision.
+The grounds of appeal included in section 84(1)(g) that removal would breach the United Kingdoms obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellants Convention rights.
+Section 92 required an appeal to be out of country unless it concerned one of five of the immigration decisions listed in section 82(2) or the individual had made an asylum or human rights claim.
+Section 94 empowered the Secretary of State to issue a certificate that an asylum or human rights claim was clearly unfounded, in which case an appeal would be limited to an out of country appeal.
+Section 96 empowered the Secretary of State to issue a certificate relating to an earlier right of appeal in which a matter now relied upon could and should have been raised, in which case an appeal could not be brought at all.
+In October 2004 rule 353 was introduced (HC 1112). 353.
+When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim.
+The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered.
+The submissions will only be significantly different if the content: had not already been considered; and (i) taken together with the previously considered (ii) material, created a realistic prospect of success, notwithstanding its rejection.
+This paragraph does not apply to claims made overseas.
+Rule 353A was inserted by HC 82/2007. 353A. Consideration of further submissions shall be subject to the procedures set out in these Rules.
+An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise.
+This paragraph does not apply to submissions made overseas.
+In WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495; [2007] Imm AR 337 the Court of Appeal (Buxton, Parker and Moore Bick LJJ) confirmed (per Buxton LJ at paras 8 10) that there is no provision for appeal from a decision of the Secretary of State as to the existence of a fresh claim and, accordingly, the court was engaged only through the medium of judicial review.
+The Secretary of States decision as to whether there was a fresh claim was not a fact, nor precedent to any other decision, but was the decision itself.
+The court could not take that decision out of the hands of the decision maker.
+The decision remained that of the Secretary of State, subject only to review on a Wednesbury basis, albeit applying anxious scrutiny.
+In ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6; [2009] 1 WLR 348 the House of Lords by a majority extended the applicability of the Onibiyo approach.
+The Secretary of State had rejected the applicants claims for asylum and protection on human right grounds and certified the claims as clearly unfounded under section 94(2) of the 2002 Act.
+As a result, the applicant had no in country right of appeal and he was served with a decision to remove him as an illegal immigrant.
+He made two further submissions, but the Secretary of State maintained her certification of the claims as clearly unfounded.
+The House of Lords held by a majority (Lord Hope dissenting) that the Secretary of State had erred in applying section 94(2) of the 2002 Act rather than rule 353 to the further submissions.
+The words any appeal relating to that claim is no longer pending in rule 353 should be interpreted in accordance with the definition of a pending appeal in section 104 of the 2002 Act.
+If there was no appeal pending, the qualifying words had no application.
+Furthermore, it made sense that the rule should be disapplied during, and only during, the currency of an appeal since if an appeal was pending further submissions could be made to the appeal tribunal.
+As Lord Neuberger observed (at para 86), it would seem silly if rule 353 only applied after an appeal had been brought and concluded but did not apply before an appeal was brought and could never apply in a case where no appeal had been brought.
+BA (Nigeria)
+Some nine months after the House of Lords delivered its decision in ZT (Kosovo) on 4 February 2009, the Supreme Court delivered its decision in BA (Nigeria) on 26 November 2009.
+Mr Fordhams primary submission is that the Onibiyo line of authority did not survive the decision of the Supreme Court in BA (Nigeria) and that, accordingly, there is no longer any role for rule 353 of the Immigration Rules.
+BA (Nigeria) concerned two separate cases.
+BA, who had previously been granted indefinite leave to remain, was served with a decision that he would be deported on his release from prison on licence from a sentence of imprisonment of ten years.
+He appealed on human rights grounds against that decision and his appeal failed.
+He was served with a deportation order.
+BA then made further submissions as to why he should not be deported.
+The Secretary of State agreed to consider his reasons for seeking revocation of the deportation order but declined to revoke it.
+Directions were then given for his removal.
+The other case was that of PE who had entered the United Kingdom clandestinely.
+His application for asylum was rejected by the Secretary of State.
+It was decided that directions were to be given for his removal to Cameroon.
+He did not appeal against that decision.
+Before it was put into effect, however, he was convicted and sentenced to imprisonment for having a forged passport and using it to obtain work.
+The Secretary of State decided to make a deportation order against him.
+PE appealed unsuccessfully against that decision on asylum and human rights grounds.
+The deportation order was signed and served on him, following which his representatives made written representations for the decision to be reconsidered.
+In particular, it was claimed that he would be persecuted in Cameroon on account of his homosexuality.
+The Secretary of State declined to reconsider her decision; in her view the representations did not amount to a fresh claim within rule 353.
+PE purported to appeal against that decision but the tribunal held that it was not an appealable decision.
+Both BA and PE applied for judicial review.
+In each of these cases the refusal of the Secretary of State to revoke the deportation order following further representations was accepted to be an immigration decision within section 82(2)(k).
+It was common ground, accordingly, that each applicant had a right of appeal under section 82(1).
+It was also common ground that neither of the claims would have been certifiable under section 94 or section 96 (although it appears that the Secretary of State took this position solely because, so far as section 94 was concerned, it applied only where the appellant has made an asylum claim or a human rights claim (or both)).
+The issue was whether the right of appeal could be exercised from within the United Kingdom. (See Lord Hope DPSC at para 14.) Section 92(1) precluded an appeal under section 82(1) by a person while he is in the United Kingdom, unless his appeal was of a kind to which section 92 applied.
+Section 92, by virtue of section 92(4)(a), applied to an appeal against an immigration decision if the appellant has made an asylum claim, or a human rights claim, while in the United Kingdom so that in such a case there would be a right to an in country appeal.
+Lord Hope encapsulated the issue (at para 2): The question is whether the expression an asylum claim, or a human rights claim, in section 92(4)(a) of the 2002 Act includes any second or subsequent claim that the asylum seeker may make, or only a second or subsequent claim which has been accepted as a fresh claim by the Secretary of State under rule 353 of the Statement of Changes in Immigration Rules (1994) (HC 395).
+The Supreme Court (Baroness Hale JSC dissenting) held that it was not open to the Secretary of State to rely on rule 353 and the Onibiyo reasoning to deny an in country right of appeal in those circumstances.
+As Lord Neuberger MR observed in ZA (Nigeria) at para 52, the actual decision in BA (Nigeria) was that rule 353 had no further part to play for the purposes of section 92(4)(a) once there was an appeal against an immigration decision.
+However, the reasoning by which the Supreme Court reached that conclusion is open to different interpretations which were formulated by Lord Neuberger in ZA (Nigeria) in the following terms (at para 51).
+Like the Administrative Court, I have not found it entirely easy to resolve the issue of whether the Supreme Court was saying (a) as the claimants contend, that rule 353 has no part to play at all following the introduction of Part 5 of the 2002 Act, or (b) as the Secretary of State argues, that rule 353 has no part to play where there has been an appealable immigration decision and the only issue is whether the appeal is of a kind to which section 92 applies.
+Ultimately, however, again like the Administrative Court, I have come to the conclusion that the Secretary of States more limited interpretation is to be preferred.
+In the present appeal, Mr Fordham has sought to persuade us that the broader reading of BA (Nigeria) is correct and that the narrower reading favoured by Lord Neuberger in ZA (Nigeria) is incorrect.
+Mr Fordham is able to point to certain passages in the judgment of Lord Hope in BA (Nigeria) (with which Lord Scott, Lord Rodger and Lord Brown agreed) which certainly lend support to the view that the new scheme introduced by the 2002 Act has rendered the reasoning in Onibiyo and rule 353 redundant.
+I draw attention, in particular, to the following passages. (1) Lord Hope (at para 29), referring to section 94(2) and section 96, noted that the new system introduced by Part 5 of the 2002 Act contains a range of powers that enable the Secretary of State or an immigration officer to deal with the problem of repeat claims.
+It was common ground that the present cases were not certifiable under either of these two sections.
+Why then, he asked rhetorically, should they be subjected to a further requirement which is not mentioned anywhere in the 2002 Act.
+He continued: It can only be read into the Act by, as Sedley LJ in the Court of Appeal put it, glossing the meaning of the words a claim so as to exclude a further claim which has not been held under rule 353 to be a fresh claim The court had to do this in Ex p Onibiyo But there is no need to do this now.
+It is not just that there is no need now to read those words into the statute.
+As Mr Husain pointed out, the two systems for excluding repeat claims are not compatible. (at paras 29, 30) (2) At para 31 Lord Hope observed: The ground of appeal referred to in section 84(1)(g) has been designed to honour the international obligations of the United Kingdom.
+To exclude claims which the Secretary of State considers not to be fresh claims from this ground of appeal, when claims which he certifies as clearly unfounded are given the benefit of it, can serve no good purpose.
+On the contrary, it risks undermining the beneficial objects of the Refugee Convention which the court in Ex p Onibiyo , under a legislative system which had no equivalent to section 95, was careful to avoid. (3) At para 33 Lord Hope observed: There is no doubt, as I indicated in ZT (Kosovo) v Secretary of State for the Home Department , para 33, that rule 353 was drafted on the assumption that a claimant who made further submissions would be at risk of being removed or required to leave immediately if he does not have a fresh claim.
+That was indeed the case when this rule was originally drafted, as there was no equivalent of section 92(4) of the 2002 Act.
+But Mr Husains analysis has persuaded me that the legislative scheme that Parliament has now put in place does not have that effect.
+Its carefully interlocking provisions, when read as a whole, set out the complete code for dealing with repeat claims.
+Rule 353, as presently drafted, has no part to play in the legislative scheme.
+As an expression of the will of Parliament, it must take priority over the rules formulated by the executive.
+Rule 353A on the other hand remains in place as necessary protection against premature removal until the further submissions have been considered by the Secretary of State.
+Similarly, Lord Rodger (at para 37), rejecting the submission that the expression an asylum claim in section 92(4)(a) should be given the same meaning as Sir Thomas Bingham MR gave to the expression a claim for asylum in section 6 of the 1993 Act, noted that the contexts were significantly different since the 2002 Act contains a new scheme for dealing with abusive claims.
+Given that new scheme, there is no longer the same need to adopt the former interpretation and, indeed, the one now adopted fits the new context better.
+Lord Brown (at para 44) explained that he had reached his conclusion only on the basis that: the statutory solution to the problem of abuse created by the making of repeat asylum claims lies not in construing an asylum claim in section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002 as the Court of Appeal in R v Secretary of State for the Home Department, Ex p Onibiyo construed a claim for asylum in section 6 of the Asylum and Immigration Appeals Act 1993 but rather in the Secretary of State issuing certificates where appropriate under sections 94 or 96 of the 2002 Act (no equivalent provisions having been available under the 1993 Act).
+Nevertheless, there are to my mind major difficulties inherent in this reading of BA (Nigeria).
+Here I find myself in total agreement with the reasoning of Lord Neuberger on this point in ZA (Nigeria) which I gratefully acknowledge.
+First, in principle there is no conflict between Onibiyo and rule 353 on the one hand and the statutory scheme in Part 5 of the 2002 Act on the other.
+I note that when Onibiyo was decided in 1996 there was in force a system of certification under paragraph 5 of Schedule 2 to the 1993 Act which established special appeal procedures for claims without foundation.
+With respect to Lord Hope, I do not consider that there is any incompatibility between what he described as the two systems for excluding repeat claims.
+They operate at different stages of the response to a purported renewed claim.
+BA (Nigeria) establishes that, as the statutory provisions then stood, where the Secretary of State receives further submissions on which he makes an immigration decision within section 82 there will, in the absence of certification, be an in country right of appeal.
+It decides that in those circumstances it is not then open to the Secretary of State to rely on the Onibiyo reasoning or rule 353 in order to contend that the submissions did not amount to a claim and that, as a result, there is no need for a decision and no entitlement to a statutory appeal.
+It is entirely understandable that in such a case there is no room for the operation of rule 353.
+Onibiyo and rule 353, by contrast, address a prior issue, namely whether there is a claim which requires a decision at all.
+Secondly, I do not consider that the effect of the machinery introduced by Part 5 of the 2002 Act, in particular the powers of certification under sections 94 and 96, is to render the Onibiyo reasoning and rule 353 redundant.
+As Lord Neuberger observed in ZA (Nigeria) (at para 24), the issue should not be decided simply by seeing whether sections 94 and 96 can be interpreted so as to cover every application falling within rule 353, as it is equally valid to consider whether they can be construed consistently with rule 353 having an independent effect.
+In my view, rule 353 continues to perform a useful role notwithstanding the machinery introduced by Part 5 of the 2002 Act. (1) Section 94 applies to claims which are clearly unfounded, whether they are original claims or purported renewed claims.
+By contrast, rule 353 applies only to supplemental submissions which purport to be claims. (2) The effect of certification under section 94 is to limit an appeal to an out of country appeal.
+Certification under section 96 has the effect that an appeal under section 82(1) may not be brought.
+The effect of rule 353 is that no right of appeal ever arises. (3) As indicated above, where it applies rule 353 operates at a prior stage to section 94.
+In the case of a purported renewed claim there is a legitimate preliminary issue as to whether it constitutes a claim requiring a decision on the merits at all.
+Rule 353 addresses that issue.
+Section 94, on the other hand, proceeds on the basis that there is a valid claim which requires consideration on the merits and a decision.
+It creates a machinery of certification of the claim as clearly unfounded so as to prevent an in country appeal. (4) The fact that section 94 applies to both original and purported renewed claims does not deprive rule 353 of its utility in relation to the latter category.
+In appropriate cases, rule 353 relieves the Secretary of State from taking a decision on the merits of the application and refusing it.
+It operates by enabling him to reject the submissions as not constituting a claim requiring decision.
+Section 94, however, comes into play only when the Secretary of State has considered a claim on its merits and refused it.
+At that stage, certification operates to block a right to an in country appeal which would otherwise arise.
+Thus rule 353 can be operated as a sort of gatekeeper by the Secretary of State to prevent further submissions amounting to, or being treated as, a claim, thereby not getting into Part 5 territory at all. (ZA (Nigeria) per Lord Neuberger MR at para 26) With respect to Mr Fordham, it is not the case that this interposing function arose only because of the additional requirement of an immigration decision in the pre 2014 statutory list in section 82(1) of the 2002 Act.
+On the contrary, it is founded on the need to identify what constitutes a claim for this purpose. (5) Section 96(1) addresses a different aspect of renewed claims from rule 353.
+Section 96(1) applies where a person seeks to rely on a matter that could have been raised in an earlier appeal against an immigration decision and the Secretary of State or the immigration officer considers that there is no satisfactory reason for the failure to do so.
+It is, in a sense, the converse of the situation addressed by rule 353. (6) Part 5 as originally enacted included a subsection 96(3) which provided: (3) A person may not rely on any ground in an appeal under section 82(1) if the Secretary of State or an immigration officer certifies that the ground was considered in another appeal under that section brought by that person.
+This provision was much closer to rule 353 than is section 96(1) as both rule 353 and section 96(3) address similar situations.
+However, section 96(3) did not achieve its effect by denying the existence of a claim requiring a decision on the merits, but by requiring such a renewed claim to be treated as a fresh claim and enabling the Secretary of State to block an appeal on the particular ground which had been raised previously.
+In any event, section 96(3) is no longer in force, having been repealed by section 30 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 with effect from 1 October 2004.
+Thirdly, there are features of the regulatory scheme which are difficult to reconcile with an intention on the part of Parliament that provisions in Part 5 of the 2002 Act should provide a comprehensive and exclusive code for dealing with repeat claims and that rule 353 should no longer be effective. (1) When the 2002 Act was enacted there was no attempt to repeal or amend rule 346, the predecessor to rule 353. (2) Parliament has approved subsequent amendments to the Immigration Rules which have not included the deletion of rule 353 which remains in force. (3) Section 53 of the Borders, Citizenship and Immigration Act 2009 (the 2009 Act) amended section 31A of the Senior Courts Act 1981 to permit transfer from the High Court to the Upper Tribunal of judicial review applications where: the application calls into question a decision of the Secretary of State not to treat submissions as an asylum claim or a human rights claim wholly or partly on the basis that they are not significantly different from material that has previously been considered As Lord Neuberger observed in ZA (Nigeria) (at para 19), here Parliament has plainly legislated on the basis that rule 353 is still in force and section 53 of the 2009 Act would have been positively meaningless if rule 353 had no further function. (4) Following the amendment of the 2002 Act by the 2014 Act, rule 353 was amended so as to ensure that it applies to human rights claims and protection claims (HC 1025).
+Once again, this is inconsistent with the suggestion that rule 353 had become ineffective.
+These features strongly suggest that rule 353 continues to perform an important function.
+Fourthly, I am persuaded that the broad reading of BA (Nigeria) for which the appellant contends is inconsistent with ZT (Kosovo) where the House of Lords held (Lord Hope dissenting) that the Secretary of State had erred in applying section 94(2) of the 2002 Act rather than rule 353 in considering the applicants further submissions.
+By contrast, there is no difficulty in reconciling the two decisions if the ratio decidendi of BA (Nigeria) is merely that rule 353 has no part to play where there is an appealable immigration decision.
+If the Supreme Court did decide in BA (Nigeria) that rule 353 is entirely redundant following the introduction of Part 5 of the 2002 Act, it must have intended to overrule or to depart from the decision of the House of Lords some nine months earlier in ZT (Kosovo).
+However, BA (Nigeria) contains no express statement to that effect.
+Moreover, while an earlier decision may be impliedly overruled, it is extremely improbable that this was the intention here, for reasons summarised by Lord Neuberger in ZA (Nigeria) as follows (at para 53): I have great difficulty with the notion that the later case relied on by the claimants overruled the earlier case. (i) Both decisions relate to a much litigated issue, and the earlier decision was given less than a year before the later decision; (ii) the point at issue was directly addressed and decided in all five reasoned judgments in the earlier decision, and even the reasoning of the dissenter would have to be treated as overruled; (iii) the earlier decision is expressly referred to three times in the leading judgment, and once in the only other reasoned judgment, in the later decision without apparent disapproval, and both judgments were given by judges involved in the earlier decision; (iv) the actual outcome in the later decision can perfectly easily be reconciled with the earlier decision, namely on the basis that the later decision is limited to further submissions which have been treated as a fresh claim; (v) this more limited interpretation of the later decision is consistent with the Court of Appeals reasoning and conclusion in that case, which was specifically approved by the Supreme Court; (vi) this more limited interpretation of the later decision is also consistent with a recent statute, whereas the wider interpretation, which would involve overruling the earlier decision, is not.
+For these reasons I agree with the Court of Appeal in ZA (Nigeria) that what is said in BA (Nigeria) is limited to cases where there is an appealable decision.
+As Lord Neuberger explained: Once there is such a decision, the complete code contained in the legislative scheme applies and rule 353 has no part to play.
+However, as decided in ZT (Kosovo) , rule 353 still has a part to play: the Secretary of State can decide that the further submissions are not a fresh claim, in which case one does not enter the territory governed by the complete code of the legislative scheme. (ZA (Nigeria) at para 59)
+For these reasons, I consider that Mr Fordhams primary case is not made out.
+The 2014 amendments to the 2002 Act
+Part 5 of the 2002 Act was substantially amended by the 2014 Act which restructured rights of appeal.
+The most relevant provisions as amended are set out at paras 19 to 23 above.
+Section 82 no longer restricts a right of appeal to an appeal against an immigration decision as formerly listed in section 82(2).
+In particular, there is no longer any right of appeal in respect of a decision to make a deportation order or a refusal to revoke such an order per se.
+Instead a person may appeal where the Secretary of State has decided to refuse a protection claim or a human rights claim made by that person or has decided to revoke that persons protection status.
+Post 2014 authority
+Before drawing conclusions as to the impact of the 2014 amendments to the 2002 Act on the present proceedings, it is convenient to consider the more recent decisions on this point.
+In Waqar v Secretary of State for the Home Department [2015] UKUT 169 (IAC) the appellant contended that the Secretary of States decision not to treat his further submissions as amounting to a fresh claim for the purposes of rule 353 amounted to a refusal of a human rights claim under section 82 as amended.
+The appellant maintained that rule 353 is now subsumed within the statutory provisions and that a right of appeal under section 82 as amended arises in all refused human rights claims, subject only to certification under sections 94 or 96.
+It was submitted that there is no longer a requirement for a categorisation step because the statutory framework now provides all necessary safeguards against repetitious or unmeritorious claims.
+In rejecting the submission, the Upper Tribunal (UTJ Coker, UTJ Kebede) held (at paras 18, 19, 20) that BA (Nigeria) is not authority for the proposition that submissions amount to a claim and that the response to those submissions is a decision within the meaning of Part 5.
+Submissions that purport to be a human rights claim do not without more trigger a right of appeal.
+There has to be an intermediate categorisation in which rule 353 provides the mechanism to determine whether they amount to a claim.
+If they do not, the decision is not a decision to refuse a human rights claim.
+In R (MG) v First tier Tribunal (Immigration and Asylum Chamber) [2016] UKUT 283 (IAC) the applicant had made a claim for asylum which had been rejected and his appeal had been dismissed.
+Further submissions on his behalf were rejected by the Secretary of State who maintained the earlier decision that he did not qualify for asylum and concluded that the further representations were not a fresh claim.
+The applicant lodged a notice of appeal with the First tier Tribunal which rejected it because no notice of an appealable decision had been issued.
+On a challenge to that decision by way of judicial review it was submitted, without taking issue with the decision of the Upper Tribunal in Waqar, that as a result of Parliaments decision to grant a right of appeal from a refusal of a protection claim the judge in the First tier Tribunal has jurisdiction to decide whether there had been a decision to refuse a protection claim.
+The Upper Tribunal (Blake J and UTJ Grubb) rejected the submission.
+In our view, notwithstanding the significant change in section 82 from a right of appeal against an immigration decision on a protection ground to a right of appeal against a protection decision itself, Parliament can be presumed to have legislated against the background of satisfaction with the previous law as declared in ZA (Nigeria).
+There is no indication in the amendments made, that it was intended to transfer responsibility for the categorisation decision of whether a claim is a fresh claim to the FtT. Indeed, the general purpose of the 2014 amendments was to reduce the appellate jurisdiction of the FtT. (at para 14) They further held that an assessment of whether a protection claim is a fresh claim is not a question of jurisdictional fact but a matter of assessment and evaluation for the Secretary of State subject to supervision by judicial review.
+Furthermore, when the Secretary of State concludes that the claim before her is not a fresh claim she does not refuse a protection claim.
+In R (Sharif Hussein) v First Tier Tribunal (para 353: present scope and effect) IJR [2016] UKUT 409 (IAC); [2017] Imm AR 84 the applicants appeal against a deportation order had been dismissed.
+He made further submissions in support of a request to revoke the order which were rejected by the Secretary of State who also concluded that they did not amount to a fresh claim within rule 353.
+The First tier Tribunal held that there was no exercisable right of appeal.
+The issue in the judicial review which followed was to what extent, if at all, the Secretary of State could utilise rule 353 to preclude the applicant from appealing to the First tier Tribunal under section 82.
+The applicant, first, relied on the judgment of Lord Hope in BA (Nigeria) in support of the proposition that rule 353 had no part to play following the introduction of Part 5 of the 2002 Act.
+Secondly, he submitted that the effect of the 2014 amendments to the 2002 Act was that rule 353 no longer applied to the categorisation issue as to whether submissions were a claim within section 82 and was now relevant only to certification issues.
+The Upper Tribunal (Dove J and Peter Lane UTJ) rejected both submissions.
+It was bound by ZA (Nigeria) to reject the first submission.
+With regard to the second submission it considered that despite the changes made by the 2014 Act the concept of a claim remained central to the new section 82.
+It also noted that if Parliament had intended to limit rule 353 to certification decisions, it would have been amended to make that clear.
+In fact, the amendment to rule 353 made following the 2014 Act to ensure that it applies to human rights claims and protection claims demonstrated that it was intended to have continuing effect.
+These matters have been considered recently by the Court of Appeal (Arden and Sales LJJ) in Secretary of State for the Home Department v VM (Jamaica) [2017] EWCA Civ 225; [2017] Imm AR 1237, a judgment delivered shortly before that of the Court of Appeal in the present case.
+Sales LJ described the relationship of section 82(1) and rule 353 in the clearest terms (at para 28): Section 82(1) and paragraph 353 of the Immigration Rules operate in combination.
+If the Secretary of State decides that new representations in relation to some earlier decision (whether of her own or by the tribunal) which is now final and closed do not amount to a fresh claim under paragraph 353 she will simply reject the representations as matters which do not affect the position of the applicant within the regime of immigration law.
+In that sort of case, on the assessment of the Secretary of State the representations do not amount to a claim by the applicant, so her decision is not a decision to refuse a human rights claim (or any other sort of claim) within the scope of section 82(1).
+No right of appeal arises in relation to her decision that the new representations do not amount to a fresh claim.
+Such a decision can only be challenged by way of judicial review.
+On this point I agree with the decision of the UT in Waqar v Secretary of State for the Home Department (Statutory Appeals/paragraph 353) [2015] UKUT 169 (IAC) at paras 19 20.
+The effect of the 2014 amendments
+The second principal submission on behalf of the appellant is that the amendments made in 2014 to Part 5 of the 2002 Act have effected a fundamental change in the operation of the statutory scheme with the result that, whatever may have been the position after BA (Nigeria), rule 353 no longer applies and accordingly no longer performs a gatekeeper function.
+First, on behalf of the appellant, Mr Fordham points to the fact that section 82, as amended, now confers a right of appeal where the Secretary of State has decided to refuse a human rights claim (section 82(1)(b)).
+Human rights claim is defined by section 113(1) for the purposes of Part 5 unless a contrary intention appears.
+Mr Fordham submits that this is striking because the question of the Part 5 meaning of human rights claim is the same question that previously arose for decision in the Supreme Court in BA (Nigeria) which established that those words, as they appear in Part 5 of the 2002 Act, are to be interpreted without reference to rule 353.
+Thus, he submits, a second or subsequent human rights claim is a human rights claim for the purpose of those statutory provisions regardless of whether the Secretary of State accepts or refuses to accept that the claim is a fresh claim within rule 353.
+I am unable to accept this submission.
+In BA (Nigeria) the Supreme Court considered that there was, in each of the cases, a human rights claim within section 92(4)(a) and, therefore, an appeal would be an in country right of appeal, subject to the possibility of certification which did not arise in that case.
+However, the reason there was an entitlement to appeal there was because the human rights claims had resulted, in each case, in a refusal to revoke a deportation order which was a qualifying immigration decision under section 82(2)(k).
+It was this which excluded the operation of rule 353.
+Consequently, the present issue is not the same issue that previously arose for consideration in BA (Nigeria).
+The issue in the present case, as previously explained, is the prior question of whether there is a claim at all.
+For the same reason, it is not the case that rejection of Mr Fordhams submission results in the same words bearing different meanings in different sections within Part 5 of the 2002 Act.
+Secondly, Mr Fordham relies on the fact that the 2014 amendments remove the former requirement of an immigration decision to which the human rights claim and its rejection needed to have a nexus.
+He submits that the effect of the simplified scheme is that any submission that removal would breach a relevant obligation will amount to a human rights or protection claim, the rejection of which will give rise to a right of appeal.
+Once again, I am unable to accept this submission.
+The appellant is not assisted by the fact that under the amended section 82 there is no longer a requirement to establish an immigration decision within the list previously set out in section 82(2).
+In fact, the contrary is the case.
+A decision to refuse to revoke a deportation order was formerly an immigration decision under section 82(2)(k) and therefore gave rise to an in country right of appeal, subject to the possibility of certification, but this is no longer the case.
+The 2014 amendments limit immigration appeals to circumstances in which there has been a refusal of a protection claim or a human rights claim, or where protection status has been revoked. (For present purposes I will concentrate on human rights claims.) However, the structure and operation of section 82 remain unchanged.
+Under the amended section 82(1) a person may appeal to the tribunal where the Secretary of State has decided to refuse a human rights claim made by him, but this does not relieve that person of the burden of establishing that the refusal was in response to a valid claim.
+The definitions in Part 5 do not address this question and the answer will depend on the application of the Onibiyo line of authority.
+Onibiyo, Cakabay, ZA (Nigeria) and VM (Jamaica) establish that there will only be a human rights claim to be determined if further submissions are considered to amount to a fresh claim.
+Rule 353, in turn, is directed at the manner in which a court should approach that prior question.
+Under the post 2014 provisions it remains the case that if there is no claim, there is no appealable decision.
+Thirdly, Mr Fordham makes a series of submissions relating to the intention of Parliament in enacting the 2014 amendments.
+In his submission, Parliament used straightforward language for the purposes of the section 82 statutory right of appeal.
+If, he submits, it had been the intention to maintain the structure for which the Secretary of State contends, Parliament would be expected to make that clear, but the contrary is the case.
+Parliament did not introduce Sir Thomas Binghams acid test into the definition of asylum claim in Part 5 of the 2002 Act.
+Parliament did not provide that claim was to be construed in accordance with the Immigration Rules, as it did in the case of humanitarian protection in section 82(2)(d) of the 2002 Act introduced by amendment in 2014.
+It did not say that claim involved an act by the Secretary of State, giving the Secretary of State a gatekeeper function as to what constitutes a claim.
+It did not impose an exclusion by reference to the Immigration Rules in any statutory provision which is in force.
+Here Mr Fordham draws attention to the fact that section 12 of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act) has never been brought into force.
+It provides that human rights claim does not include a claim which, having regard to a former claim, falls to be disregarded for the purposes of this Part in accordance with immigration rules.
+Parliament did not say that the Part 5 right of appeal is subject to exceptions or limitations specified in the Immigration Rules.
+Rather section 82(3) states that the right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.
+Mr Fordham submits that such clarification might have been expected in the light of BA (Nigeria).
+The difficulty with these submissions is that they fail to take account of the principle of informed interpretation and the judicial authorities on Part 5 as they stood at the date of the 2014 amendments.
+Parliament is normally presumed to legislate in the knowledge of and having regard to relevant judicial decisions. (See, generally, Bennion on Statutory Interpretation, 7th ed, (2017) section 24.6.) In the present context, the Court of Appeal in ZA (Nigeria) had provided an authoritative explanation of the effect of BA (Nigeria).
+As Sir James Eadie put it in his submissions, Parliament can therefore be assumed to have legislated in the light of a consistent line of authority which established that a purported human rights claim that did not meet the threshold of a fresh claim under rule 353 was not a claim at all.
+Had Parliament intended to depart from this approach, it would surely have made express provision to that effect.
+On the contrary, there is nothing in the amendments made in 2014 which supports the view that Parliament intended to open the door so as to enable repeated claims raising human rights issues to generate multiple appeals. (See, in this regard, Hussein per Dove J and UTJ Lane at para 42.)
+I should, for the sake of completeness, address two further matters arising from Mr Fordhams submissions in this regard.
+First, it would not be appropriate to speculate as to why section 12(3) of the 2006 Act has not been brought into force but, in any event, in seeking to ascertain the intention of Parliament the court must have regard to the legislation as enacted. (See ZA (Nigeria) per Lord Neuberger MR at para 57.) Secondly, the explanatory notes to the 2006 Act state that the amendments to the definition of human rights claim and asylum claim in section 113 of the 2002 Act were made to clarify that further submissions which follow the refusal of an asylum or human rights claim but which do not amount to a fresh claim will not carry a further right of appeal.
+Conclusion
+For these reasons I consider that the Court of Appeal was correct to conclude that a human rights claim in section 82(1)(b) of the 2002 Act as amended means an original human rights claim or a fresh human rights claim within rule 353.
+More generally, where a person has already had a protection claim or a human rights claim refused and there is no pending appeal, further submissions which rely on protection or human rights grounds must first be accepted by the Secretary of State as a fresh claim in accordance with rule 353 of the Immigration Rules if a decision in response to those representations is to attract a right of appeal under section 82 of the 2002 Act.
+For these reasons I would dismiss the appeal.
+Finally, I draw attention to two recent developments.
+First, in July 2018 Justice published a report on Immigration and Asylum Appeals by a Working Party chaired by Professor Sir Ross Cranston which highlights the pressures facing the current appeals system.
+Secondly, since the oral hearing on this appeal the Law Commission has published a consultation paper on the Immigration Rules which seeks to identify the underlying causes of their complexity, and to identify principles under which they can be redrafted to make them simpler and more accessible (Law Commission: Simplification of the Immigration Rules; CP 242, 21 January 2019).
+The Law Commissions initiative is timely and welcome.
+As will be apparent from this judgment, the structure of both primary and secondary legislation in this field has reached such a degree of complexity that there is an urgent need to make the law and procedure clear and comprehensible.
diff --git a/UK-Abs/train-data/judgement/uksc-2017-0215.txt b/UK-Abs/train-data/judgement/uksc-2017-0215.txt
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+This appeal relates to personal independence payment, which is a non means tested allowance paid to certain people with long term health problems or disability.
+The appeals focus is upon one of the markers used to determine whether a claimants ability to live his or her daily life is limited, by his or her physical or mental condition, to such an extent as to generate an entitlement to personal independence payment (PIP).
+Various daily living activities are examined as markers, and the one in question here is engaging with other people face to face.
+The general scheme of the Welfare Reform Act 2012 and the Social Security
+(Personal Independence Payment) Regulations 2013
+PIP is dealt with in Part 4 of the Welfare Reform Act 2012 (the Act).
+Section 77 introduces the allowance and establishes that a person may be entitled to one or both of its two components, namely the daily living component and the mobility component.
+This case is concerned with the daily living component.
+Entitlement is dealt with in section 78, which also points the way to other relevant provisions contained in Part 4 and in the regulations made under it.
+The component can be paid at either the standard rate (which is what is in question here) or, for those whose ability is more limited, the higher enhanced rate.
+By section 78(1), there are two requirements which the claimant must satisfy in order to be entitled to the daily living component at the standard rate, namely the requirement in section 78(1)(a) (which I will refer to as the limited ability requirement), and the required period condition in section 78(1)(b).
+So far as is material, the section reads: 78.
+Daily living component (1) A person is entitled to the daily living component at the standard rate if (a) the persons ability to carry out daily living activities is limited by the persons physical or mental condition; and the person meets the required period (b) condition. [entitlement to enhanced rate] (2) [meaning of standard and enhanced rate] (3) In this Part daily living activities means such (4) activities as may be prescribed for the purposes of this section. (5) See sections 80 and 81 for provision about determining (a) whether the requirements of subsection (1)(a) or (2)(a) above are met; (b) whether a person meets the required period condition for the purposes of subsection (1)(b) or (2)(b) above. (6) This section is subject to the provisions of this Part, or regulations under it, relating to entitlement to
+the daily living component
+Section 80 provides that the question whether a persons ability to carry out daily living activities is limited by the persons physical or mental condition (the limited ability requirement in section 78(1)(a)) is to be determined in accordance with regulations, and that the regulations must provide for that question to be determined, except in prescribed circumstances, on the basis of an assessment (or repeated assessments) of the person.
+The question of whether the person meets the required period condition for the purposes of section 78(1)(b) is similarly to be determined in accordance with regulations.
+The Social Security (Personal Independence Payment) Regulations 2013 (the Regulations) prescribe the activities which are daily living activities for section 78 as those set out in column 1 of the table in Part 2 of Schedule 1 to the Regulations.
+The table lists ten activities.
+Column 2 focuses in some detail on the ability of the claimant (referred to throughout the Regulations as C) to carry out each activity, on a scale ranging from being able to carry out the activity unaided to being unable to do it.
+For example, activity 1 in the list is Preparing food, and there are six levels of ability in column 2 ranging from a. Can prepare and cook a simple meal unaided to f. Cannot prepare and cook food.
+Each sub paragraph in column 2 is called a descriptor.
+In column 3, points are attributed, according to the level of ability measured by the descriptors; the greater the difficulty experienced by the claimant, the greater the number of points awarded.
+So, a claimant who can prepare and cook a simple meal unaided has no points attributed, whereas, at the other end of the scale, eight points are attributed where the claimant cannot prepare and cook food.
+There are gradations between the two; for example, a claimant who needs prompting to be able to prepare or cook a simple meal has two points attributed, as does a claimant who needs to use an aid or appliance to do so.
+The same ascending scale of difficulty, reflected in increasing numbers of points, can be seen in relation to each of the activities in the table.
+Regulation 5 provides that the points attributed for each activity in the table are added together and, if the total is at least eight but less than 12, the claimant has limited ability to carry out daily living activities, and is entitled to PIP at the standard rate, whereas if the total is 12 points or more, the claimant will be classed as having severely limited ability and is entitled to the enhanced rate.
+Regulation 4(2A) provides some more detail as to how the assessment of ability is approached, providing that: C is to be assessed as satisfying a descriptor only if C can do so safely; to an acceptable standard; repeatedly; and (a) (b) (c) (d) within a reasonable time period.
+Regulation 4(4) defines these concepts as follows: repeatedly means as often as the activity being (a) safely means in a manner unlikely to cause harm to C or to another person, either during or after completion of the activity; (b) assessed is reasonably required to be completed; and (c) reasonable time period means no more than twice as long as the maximum period that a person without a physical or mental condition which limits that persons ability to carry out the activity in question would normally take to complete that activity.
+The assessment of the claimant is more than just a snapshot of ability, given that the required period condition has to be satisfied, see section 78(1)(b).
+Section 81 dictates the shape of the regulations about this condition, providing (so far as material) that they: must provide for the question of whether a person meets the required period condition to be determined by reference to (a) whether, as respects every time in the previous three months, it is likely that if the relevant ability had been assessed at that time that ability would have been determined to be limited by the person's physical or mental condition; and (b) whether, as respects every time in the next nine months, it is likely that if the relevant ability were to be assessed at that time that ability would be determined to be limited by the persons physical or mental condition.
+For present purposes, the relevant ability is, of course, the ability to carry out daily living activities (section 81(2)).
+Section 81(3) deals with the reckoning of the periods of three and nine months, providing that the previous three months means the three months ending with the prescribed date and the next nine months means the nine months beginning with the day after that date.
+The Regulations make provision as required by section 81, including establishing what the prescribed date is, and also dealing with further issues to do with the required period.
+The detail does not matter for the issue presently under consideration.
+What is important is to recognise that it is not just the claimants situation on one day of assessment that is under consideration, but his or her situation over a period of 12 months.
+Furthermore, it is clear from the Regulations that some degree of fluctuation in the claimants presentation is anticipated.
+Regulation 7, which is entitled Scoring: further provision, sets out how to choose which descriptor applies to a claimant in relation to each activity in the table.
+It involves looking to see which descriptors are satisfied on over 50% of the days of the required period, and from that information, working out which descriptor is to be applied.
+Regulation 7(1)(a) (which deals with the most straightforward situation) will serve as an example; it provides that where one descriptor is satisfied on over 50% of the days of the required period that descriptor applies to the claimant.
+The provision under consideration in the present case
+It is Activity 9 in the table in Part 2 of Schedule 1 to the Regulations which gives rise to the issues in this appeal.
+In relation to this activity, the table provides: Column 1 Activity 9.
+Engaging with other people face to face.
+Column 3 Points 0 2 4 8 Column 2 Descriptors a. Can engage with other people unaided. b. Needs prompting to be able to engage with other people. c. Needs social support to be able to engage with other people. d. Cannot engage with other people due to such engagement causing either (i) overwhelming psychological distress to the claimant; or (ii) the claimant to exhibit behaviour which would result in a substantial risk of harm to the claimant or another person.
+Difficulty has arisen over descriptor 9c, and in particular over what is meant by social support, and how it differs from prompting in descriptor 9b so as to justify descriptor 9c attracting four points, whereas descriptor 9b only attracts two points.
+A subsidiary issue that arises is whether social support only covers help given whilst actually engaging with other people face to face, or whether help given in advance is also relevant.
+Definitions are provided for the purpose of Schedule 1 by Part 1 of the Schedule, including the following: In this Schedule aided means with (a) (b) the use of an aid or appliance; or supervision, prompting or assistance; assistance means physical intervention by another person and does not include speech; communication support means support from a person trained or experienced in communicating with people with specific communication needs, including interpreting verbal information into a non verbal form and vice versa; engage socially means interact with others in a contextually and (a) socially appropriate manner; (b) understand body language; and establish relationships; (c) prompting means reminding, encouraging or explaining by another person; psychological distress means distress related to an enduring mental health condition or an intellectual or cognitive impairment; social support means support from a person trained or experienced in assisting people to engage in social situations; supervision means the continuous presence of another person for the purpose of ensuring Cs safety; unaided means without (a) (b) the use of an aid or appliance; or supervision, prompting or assistance.
+There is no definition of engaging with other people face to face or of engage.
+As can be seen, Part 1 provides, instead, a definition of engage socially, a term which does not appear anywhere else in the Schedule.
+It is thought that this is an error, arising when Activity 9, which was originally entitled engaging socially, was refined following consultation on the provisions.
+The settled position in the tribunals (endorsed by the Court of Appeal in Hickey v Secretary of State for Work and Pensions [2018] EWCA Civ 851; [2018] 4 WLR 71, para 9) is that factors set out in relation to engaging socially are nevertheless relevant to the consideration of a persons ability to engage with other people face to face, and there does not appear to be any reason to disrupt that approach.
+The context in which the present issues arise
+The respondent is a man in his forties.
+He made a claim for PIP relying, inter alia, upon the effects that his mental health has upon his ability to engage with other people.
+When his claim was refused because he had not been awarded the required eight points, he appealed unsuccessfully to the First tier Tribunal (FTT).
+A central issue in the appeal was the number of points that should be attributed to him under Activity 9.
+The FTT considered that the decision maker had correctly found him to fall within descriptor 9b (prompting), rather than 9c (social support).
+Explaining this, the FTT Judge simply said: Two points have been awarded in respect of 9b.
+From the activities of daily living and our findings in fact above we consider that this is the appropriate descriptor.
+The appellant did not require social support as defined to be able to engage with other people nor did engaging with other people cause him overwhelming psychological distress or to exhibit behaviour which would result in a substantial risk of harm to himself or another person.
+Two points are due as awarded.
+The respondent appealed to the Upper Tribunal, contending that he should have been awarded four points under 9c, which would have qualified him to receive PIP.
+The appeal was allowed on the basis that the FTT had given an inadequate explanation of why 9b had been selected rather than 9c, and that it had failed to make adequate findings of fact going to that issue.
+The Upper Tribunal judge remitted the case to the FTT for rehearing, providing directions as to how the tribunal should approach Activity 9.
+The essence of the directions might be said to be as follows: i) what is envisaged as social support is emotional or moral support and perhaps also physical support, and other interventions which could include everything in the definition of prompting provided it can only be accepted by the claimant if given by a qualified person; ii) qualified people are those who are trained or experienced in assisting people to engage in social situations and friends or family can come within that category; iii) support.
+the qualified person needs to be present or available to provide the
+The Secretary of State appealed to the Inner House of the Court of Session.
+The Upper Tribunals decision to set aside the FTTs determination and to remit the matter for rehearing was not challenged, but the directions which were to govern the FTTs approach were.
+The grounds of appeal were that the Upper Tribunal should have directed the FTT that the social support must be contemporaneous with the social engagement being supported, and that social support requires something more substantial than prompting.
+The Inner House refused the appeal.
+It rejected the argument that the support had to be contemporaneous with the social engagement, considering that there might be situations in which a qualified person could provide sufficient support in anticipation of the claimant meeting people face to face, without the supporter actually having to be present during the meeting.
+However, although there was, in the Inner Houses view, no justification for a requirement that the support must be given during or immediately before the engagement, there did have to be a temporal or causal link of some sort between the help given and the activity in respect of which the help is needed (para 51 of the Inner Houses opinion).
+As to the nature of social support, the Secretary of States position was encapsulated by the Inner House in this way (at para 53 of its opinion): the exercise suggested is, in effect, to treat prompting and social support as mutually exclusive, deduct everything that amounts to prompting and see what, if anything, you are left with which, if sufficient in quantity, might amount to social support.
+This approach had found favour with a number of Upper Tribunal judges (in CPIP/1861/2015 UKUT(AAC) (unreported) 12 April 2016; CSPIP/203/2015 and CSPIP/210/2015 UKUT (AAC) (unreported) 11 March 2016; AH v Secretary of State for Work and Pensions [2016] UKUT 276 (AAC); EG v Secretary of State for Work and Pensions [2017] UKUT 101 (AAC)).
+In the view of the Inner House, however, the Secretary of States approach failed to recognise the potential for overlap between the prompting and the social support categories (para 54 ibid).
+It held that they are not mutually exclusive categories.
+As the Inner House saw it, the critical distinction between descriptor 9b prompting and descriptor 9c support lay not in a difference in the nature of the help provided but in the fact that, with social support, there is a necessity for the help to come from a person trained or experienced in assisting people to engage in social situations (para 55).
+Having given the example of psychological support given by someone trained in psychology, which would clearly count as social support, it went on to say: But there may be cases where the support is in the nature of encouragement or explanation but, because of the claimants mental state, will only be effective if delivered by someone who is trained or experienced in delivering that type of support to that individual.
+In such a case there will not be a qualitative difference in the help given, but the help can be regarded as support because of the necessity for it to be provided by someone trained or experienced in delivering it.
+The Inner House slightly modified the Upper Tribunal judges direction to the FTT, setting out its own formulation, at para 56, as follows: Encouragement or any other sort of prompting can qualify as social support if, to render it effective or to increase its effectiveness, it requires to be delivered by someone trained or experienced in assisting people to engage in social situations.
+The case was remitted to the FTT for determination in accordance with the guidance given in the Inner Houses opinion.
+The Secretary of State then appealed to this court, challenging the Inner Houses interpretation of social support (termed by the parties the qualitative issue), and its conclusion that it need not be contemporaneous with the engagement being supported (the timing issue).
+The respondent, who made his claim for PIP in February 2015, meanwhile continues to await the factual findings and ruling in the FTT that is necessary to resolve whether or not he is entitled to any payment.
+He maintains that the Inner Houses ruling is substantially correct.
+Mind was given permission to intervene and has provided helpful submissions, both in writing and orally.
+It considers the respondents position in relation to the timing issue to be correct, but invites the court not to decide that issue, on the basis that it is unnecessary and undesirable to do so in the circumstances of this case.
+It concentrates its submissions on the qualitative issue, aligning itself with the respondent and the courts below.
+The Secretary of States argument: the qualitative issue
+Contrary to the position taken below, in this court the Secretary of State accepts that social support for the purposes of descriptor 9c may consist of prompting, but submits that the prompting involved in social support is different by virtue of the fact that, in accordance with the definition of social support, the support needed has to be support from a person trained or experienced in assisting people to engage in social situations.
+If a person trained or experienced were to be narrowly construed, denoting someone who has such training or experience by virtue of their professional training or occupational history, there would be no difficulty in identifying situations within 9c, but the Secretary of State adheres to the assurance given during the consultation process that a friend or family member who knows the claimant well, and can offer support, can also be included as a relevantly experienced person.
+So, the Secretary of State submits, the key feature that distinguishes social support is that, as it is put in the written case: the help needs to be given by [the] trained or experienced person by reason of their training or experience.
+Familiarity is not enough.
+The Secretary of States concern (as articulated in the written case) is that the Inner Houses direction risks generating confusion: between the persons who require support from a person because of their relevant experience (which might include experience gained in the course of being friends or family), and those who require support from a friend or family member solely because of that relationship It is very common for a person to only respond well to someone they know and trust.
+However, the need for help from someone familiar or trusted on its own does not turn prompting into social support.
+There will be a qualitative difference, the Secretary of State says, in the help given by a helper using his or her training or experience as opposed to other help.
+The trained or experienced person will understand what is lacking in the claimants social engagement and be able to overcome this, or enable the claimant to do so, whereas an inexperienced person would not necessarily be able to see what was lacking, anticipate a difficulty, or know how to remedy it.
+Discussion: the qualitative issue
+The difference between the Secretary of States interpretation and that of the Inner House (supported by the respondent and the intervener) is somewhat nebulous, and appears as if it might, in fact, be limited.
+Rather than risk confusing the issue by indulging in a comparison of the two positions, it might be better to return directly to the text of Activity 9.
+It is well to bear in mind, when considering the ambit of the various limbs of Activity 9, that engaging with people face to face is an activity that can take many differing forms.
+As was pointed out in the course of oral argument, face to face interactions will range from engagements such as formal interviews and medical examinations to establishing and furthering close personal relationships.
+Similarly, the sort of assistance that enables the engagement to occur will take many differing forms.
+The obvious starting point, in determining which of the Activity 9 descriptors applies, is to establish what help the particular person needs in order to be able to engage with other people face to face, remembering that this is not about the help the person is actually receiving, but about the help that they need, although the one may of course inform the other.
+It is worth stressing that the provisions are not concerned with support that the person would like to have, or would appreciate as generally comforting; the particular support has to be needed to enable the activity to take place.
+Having assembled the facts in this way, one can start to consider whether the help needed is of a type that falls within the ambit of social support for the purposes of descriptor 9c.
+Early in the oral argument, the Secretary of State sought to confine the scope of social support by adopting a rather technical construction of the Activity 9 descriptors.
+The starting point was that descriptor 9a concerns a person who can engage with other people unaided.
+The submission flowing from this had the following elements: it can be inferred that, in contrast to those within 9a who can manage i) unaided, claimants falling within 9b and 9c all need to be aided; ii) aided is a term defined in Part 1 of the Schedule (see para 13 above), and involves the use of an aid or appliance, or supervision, prompting or assistance; iii) iv) is meant by social support in 9c. so 9b and 9c claimants will all require aid in one of these forms;
+and other forms of support are therefore irrelevant in considering what
+There are difficulties with this proposed interpretation, but there is nothing to be gained in elaborating them.
+It suffices to say that, in my view, such a narrow and technical approach would introduce an unwarranted limitation of the broad word support which has been used in descriptor 9c.
+This would be inconsistent with the governments objectives in introducing the new disability benefit provisions, including PIP, which included simplifying matters, and creating a benefit that was easier to understand, and reached those in need of extra support to live independently and participate in everyday life.
+In practice, support might take many forms, responding, no doubt, to the varied needs of claimants, and the varied forms of face to face engagement.
+The examples provided by Mind underline the wide variation in the help people have/require in order to engage with other people.
+Prompting is one form of support, as is now accepted, but there will be other forms, and they may well not fall within the definition of aided.
+The use of an aid or appliance might not often be relevant, supervision is about ensuring safety rather than directed at Activity 9, and the only other form of aid included in the definition is assistance which means physical intervention not includ[ing] speech, and might play a part, but is unlikely to sweep up all other available forms of support.
+I would accordingly reject the argument that only support that falls within the definition of aid is relevant, although acknowledging that a consideration of the various forms of prompting and of the other sorts of aid identified in the Regulations could assist in lending some colour to the concept of support.
+I return, therefore, to the central question of what differentiates the claimant who needs social support and is entitled to four points under descriptor 9c, from the claimant who is only entitled to two points, because he or she only needs prompting in the form covered by descriptor 9b.
+It is inherent in the scheme that, broadly speaking, descriptor 9c reflects a greater degree of disability than descriptor 9b, so attracting increased points.
+Responding to the greater degree of disability requires the attention not just of another person (as in the case of prompting simpliciter), but of a person trained or experienced in assisting people to engage in social situations.
+That is what differentiates prompting for the purposes of 9b from prompting which is social support for the purposes of 9c.
+And where the support takes a form other than prompting, it will similarly only qualify for 9c if the claimant needs it to come from a person so trained or experienced.
+The Secretary of States anxiety that the provision will be taken to include the sort of confidence boosting and reassurance that occurs in most close relationships can be allayed by keeping the focus very firmly on the twin requirements of necessity and relevant training or experience.
+Applied in the family/friends setting, to qualify for points under 9c, the claimant has to need support from someone who is not just familiar with him or her, but who is also experienced in assisting engagement in social situations.
+It is the training/experience of the helper upon which the claimant depends in order to enable the face to face engagement with others to take place, not simply the close and comforting relationship that may exist between the claimant and the helper.
+Having dispatched the idea that prompting can never constitute social support, the words of descriptor 9c, taken with the definition of social support, clearly define the ambit of the category and distinguish it from descriptor 9b.
+There is no need to complicate them.
+As the Inner House observed in para 55 of its opinion (see the passage quoted at para 20 above), the nature of the support provided might not differ between 9b and 9c.
+What brings the claimant into 9c rather than 9b is that, to be able to engage with others, he or she needs that support to come from someone trained or experienced in assisting people to engage in social situations.
+As the Inner House helpfully put it, the support will only be effective if delivered by someone who is trained or experienced.
+I would express a word of caution about the Inner Houses statement (at para 56) that help can qualify as social support if, to render it effective or to increase its effectiveness (my italics), it requires to be delivered by a trained or experienced person.
+It is useful to ask oneself what is required to render help effective in enabling the social engagement to take place, as I have observed in my preceding paragraph.
+But I cannot endorse the addition of the italicised words.
+Descriptor 9c revolves around what the claimant needs, and need is not a relative term.
+The claimant either needs or does not need trained/experienced help in order to be able to engage with other people.
+If only trained/experienced help will be effective in achieving the objective, the claimant can be said to need it.
+If what could be called, for want of a better shorthand, lay help would enable the claimant to engage, the claimant does not fall within 9c, but might fall within 9b.
+And, of course, if not even trained/experienced help would work, the claimant might fall within 9d.
+There will, inevitably, be cases in which it is not immediately evident whether descriptor 9c applies, and it is only after scrutinising the facts particularly carefully that the decision maker will be able to reach a determination.
+Although the provision is concerned with the help the claimant needs, rather than with the help which he or she is actually getting in practice, it seems likely that, in many family/friends cases, someone will already be carrying out the supportive role in face to face engagements.
+Where this is so, the assessment/decision making process will be assisted by looking at the elements of the support that they actually provide, how they have come to know what to do, whether or not the sort of help that they provide could be provided by any well meaning friend or family member, and what additional help (if any) is required.
+Exploring these issues will no doubt be a sensitive task.
+Mind points out that people often struggle to convey the relevant information or they put it in terms which are misunderstood.
+Claimants are likely to be handling their applications for PIP themselves, or with assistance only from family and friends.
+Here, for example, the respondent and his partner attended the hearing before the FTT, both gave evidence, and the partner acted as the respondents representative.
+During the application process, whether it be upon the first request for payment or in the tribunal system upon appeal, it may be necessary to probe what is being said in support of the claim so as to establish the elements of the help that is required to enable the face to face engagement to take place and the characteristics of the person who will need to provide it in order for it to be effective.
+By way of example, if a claimant says, I need to have someone I trust with me when I meet people face to face, a number of questions are likely to be required to follow this up, and to determine whether the claimant comes within descriptor 9b or 9c.
+Everything will depend on the facts of the particular case, but they might include questions (sensitively put, of course) such as why is that?, who would you trust in that role?, what sort of things could they do to help you engage?, how would they know what to do?, what would happen if that person was not there?
+The Secretary of States argument: the timing issue
+The Secretary of State submits that social support needs to be contemporaneous with the face to face engagement being supported, and that it does not include help provided in advance of it.
+The contrary interpretation would, submits the Secretary of State, leave matters so open that it would inevitably generate inconsistencies and arbitrariness in decision making.
+The reasons given in support of the narrow approach include: i) The assessment is a calibration of the claimants functional limitations at the date of the claim with the application of the qualifying periods; it is an assessment of actual disability during the activity. ii) Descriptor 9c uses the present tense: needs.
+This suggests presence during the activity, for example to do the reminding, encouraging or explaining involved in prompting. iii) Supporting the face to face engagement requires that the supporter perceives the full context of the engagement and has the ability to react to what is done by the person with whom the claimant is seeking to engage. iv) Descriptor 9c is concerned with an intensity of need on the part of the claimant (as reflected in the need for a trained/experienced supporter) which is such as to make it unrealistic to contemplate sufficient support being given without the supporter actually being present during the engagement. v) Social support would be in an anomalous position if it could occur in advance of the engagement, whereas other descriptors require support to be contemporaneous.
+The Secretary of State invites comparison with, for example, communication support (relevant to Activity 7) which it is submitted would, by its nature, have to be provided at the time of the communication. vi) It would be very difficult to apply the provision if support in advance would qualify.
+How would the moral, social and emotional support which is an ordinary incident of family relationships and friendships, be distinguished from assistance that would qualify for 9c? vii) As for psychological support, the Secretary of State would say that it is not within the scope of social support at all, but if it were, the problem would be to know how far back one should go, and whether to include counselling sessions the day before the engagement, or a week before, or a year before.
+Discussion: the timing issue
+It might be helpful to consider the timing issue having in mind some examples of the practical ways in which a person can be helped to engage face to face with others.
+Given that no findings of fact have yet been made in relation to the respondents circumstances, it is desirable to avoid focusing particularly on him, but in the course of his counsels submissions, examples were given of the sort of support that an experienced family member might give.
+Preparation might occur prior to the engagement which enables it to occur without, for example, overwhelming psychological distress.
+One technique that can be deployed is to look together, in advance of the meeting, at the worst case scenario.
+During the meeting, with knowledge of the claimant, the supporter can watch out for things that are known to trigger his or her anxiety, and redirect the conversation.
+Where memory is a problem, the supporter can remind the claimant of things they have forgotten.
+Private signs of reassurance can be given where required.
+And, where required, the supporter might recognise the need to remove the person from the meeting.
+It is important to remember that each claimant is an individual with individual needs, and that different techniques might help in different cases, or at different times in the life of the same person.
+It seems to me that the Secretary of States insistence on it being necessary for the supporter to be present with the claimant during the face to face engagement would stand in the way of other means of support which work for the particular claimant, and would also be likely to impede attempts to improve the claimants abilities to handle matters without support at all, or with diminished support.
+It is not difficult to contemplate a situation in which the trained or experienced supporter is aiming to make progress so that a claimant, who initially cannot manage without the supporter physically present during the face to face engagement, learns in stages to manage with the supporter at the door of the room, next door, leaving the building for a short period during the meeting, bringing the claimant to the meeting and collecting him after it, and so on.
+Discussion before (and possibly after) engagements, and also practical exercises, might be deployed, in order to equip the claimant to deal with encounters without the physical presence of the supporter.
+At some point in the progress, the claimant will cease to qualify under 9c, but, looking at things entirely practically, rather than legalistically, it would be hard to say that, in all cases, from the moment in the continuum when the supporter is no longer in the room with the claimant, he no longer needs social support to be able to engage with people.
+It is also relevant to consider the sensitivity of some of the face to face engagements that a claimant may need to undertake.
+Social support by physical presence with a claimant during a medical examination, or what was called during the hearing a romantic engagement, might be counter productive, whereas social support which did not involve actual presence might enable the claimant to engage when that would not otherwise have been possible.
+For example, it is easy to contemplate that the claimant and the experienced supporter might have a discussion in advance of a medical examination, going through every element of the procedure and exploring how the claimant might respond to it, the claimant might then allow him or herself to be accompanied to the door of the consultation room and given into the care of the doctor or nurse, and the necessary continuing reassurance might come from the knowledge that the supporter was nearby in the waiting room.
+It is undesirable to construe the provision in a way that runs counter to these sorts of considerations, unless that is dictated by the provision itself, or by something in its legal context.
+There is nothing in the wording of descriptor 9c, or the definition of social support, to require actual presence of the supporter during the engagement, nor yet to require that the support is timed to coincide with the engagement, rather than being provided in advance, or indeed afterwards.
+The use of the present tense (needs) does not carry the Secretary of State this far.
+It does dictate that the claimant actually needs the support as respects every time over the course of the 12 months made relevant by the required period condition (see para 9 above).
+The need has to be a continuing one, not one that has been addressed or otherwise ceased, and I would certainly agree with the Inner House when they said (para 49) that descriptor 9c (and for that matter descriptor 9b) would not apply to a case: where, as a result of a successful psychiatric or psychological intervention in the past, the person being assessed was now able to engage with other people satisfactorily and without further help.
+He would not be able to say, on the strength of that previous intervention, that he continued to fall within Activity 9, descriptor c.
+But the requirement that there should be a current need at all relevant times does not, of itself, exclude the possibility of assistance given outside the confines of the engagement itself.
+This is perhaps most easily demonstrated by an example: if social support includes, say, advice and discussion prior to a face to face engagement, it could perfectly properly be said of a claimant, who can only engage if that sort of help is provided, that he needs social support.
+The Secretary of States interpretation would only be made out if social support is confined to that which is provided on the spot, and there is nothing in the definition of it to confine it in that way.
+In the absence of express wording dictating contemporaneity, the Secretary of States argument must depend upon inferences drawn from elsewhere in the Regulations and/or from the likely circumstances of claimants.
+Comparisons with other daily living activities where presence is required during the activity are unhelpful, in my view, because all the various activities are different in nature, and the ways of overcoming difficulties in carrying them out will inevitably be different.
+Nor am I persuaded by the submissions based upon the intensity of the claimants need and the supposed need for the supporter to perceive and react to the engagement as it unfolds.
+Sometimes these factors will dictate that the supporter can only provide effective help if actually present, but I see no reason to assume that this will always be the case, and no reason to limit the scope of descriptor 9c so as to exclude cases where support is required from a person trained or experienced in assisting people to engage in social situations but which do not fall within this model.
+In short, I do not consider that descriptor 9c is limited to cases where a claimant needs social support actually during the face to face engagement.
+Given that social support is likely to take many different forms, depending on the individual needs of the claimant, it is undesirable to attempt to prescribe, in the abstract, which other forms of support will be sufficient.
+It will be a question of fact and degree, and is something that will have to be worked out on a case by case basis, by those with expertise in making assessments and decisions in relation to claims, keeping the wording of the provision firmly in mind.
+I am hopeful that it will prove possible to do this without the Secretary of States fears of inconsistent and arbitrary decisions being realised.
+Before concluding, I should say something about the Inner Houses acceptance that what was required was a temporal or causal link of some sort between the help given and the activity in respect of which the help is needed (para 51).
+This is not a formulation that should, in my view, be adopted.
+A detailed explanation of why not is unlikely to be of assistance, and one illustration of the problem will perhaps suffice.
+The formulation contemplates two separate ways in which the requisite link could exist, expressed as alternatives, namely a link by virtue of timing (temporal link) and a link by virtue of being instrumental in securing the engagement (causal link).
+It is difficult to envisage how support which is linked in time to a face to face engagement but has no causal link to what occurs could have any relevance.
+Sometimes, explaining and elaborating upon a provision confuses rather than assists, and this might be one of those situations.
+The answer is more likely to be found, in any given case, by close attention to the words of descriptor 9c, as defined in the Regulations, and to the required period condition.
+This exercise, paying close attention in particular to the requirement that the claimant needs the support (see para 43 above), should serve to confine the scope of descriptor 9c within appropriate time boundaries.
+Conclusion
+I would allow the appeal in the limited sense that I would interpret the relevant legal provisions slightly differently from the Inner House, as I have explained above.
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+This appeal concerns the relationship between two statutory provisions, one very old and the other very young.
+The old provision, which dates back to the inception of Income Tax during the Napoleonic Wars, but is now to be found in section 874 of the Income Tax Act 2007, requires a debtor in specific circumstances to deduct income tax from payments of yearly interest arising in the United Kingdom.
+The young provision, first made the subject of legislation in 1986 (and replacing previous judge made rules) but now to be found in rule 14.23(7) of the Insolvency Rules 2016, requires a surplus remaining after payment of debts proved in a distributing administration first to be applied in paying interest on those debts in respect of the periods during which they had been outstanding since the commencement of the administration.
+The short question, which has generated different answers in the courts below, is whether interest payable under rule 14.23(7) is yearly interest within the meaning of section 874, so that the administrators must first deduct income tax before paying interest to proving creditors.
+The question arises in connection with the administration of Lehman Brothers International (Europe) (LBIE) which, although it commenced at a time when LBIE was commercially insolvent due to the worldwide crash of the international group of companies of which it formed an important part, has nonetheless generated an unprecedented surplus after payment of all provable debts, in the region of 7 billion, of which some 5 billion is estimated to be payable by way of statutory interest (before any deduction of income tax).
+LBIE went into administration on 15 September 2008.
+It became a distributing administration in December 2009.
+A final dividend was paid to unsecured proving creditors (bringing the total dividends to 100p in the pound) on 30 April 2014.
+After the coming into effect of a scheme of arrangement, interest slightly in excess of 4 billion was paid to creditors, after deduction of a sufficient amount on account of tax to abide the outcome of these proceedings, on 25 July 2018.
+Thus the time which elapsed between the commencement of the administration and the payment of interest to creditors was slightly under ten years.
+The periods in respect of which interest was payable under rule 14.23(7) (and its predecessor) ranged from a little over four years (which expired when the first interim distribution to proving creditors was made in November 2012) and little over five and a half years, when the final dividend to creditors was made, as described above.
+Statutory Interest in Administration
+Rule 14.23(7) of the Insolvency Rules 2016, which replaced substantially identical provisions in rule 2.88(7) of the Insolvency Rules 1986, provides as follows: (7) In an administration (a) any surplus remaining after payment of the debts proved must, before being applied for any other purpose, be applied in paying interest on those debts in respect of the periods during which they have been outstanding since the relevant date; (b) all interest payable under sub paragraph (a) ranks equally whether or not the debts on which it is payable rank equally; and the rate of interest payable under sub paragraph (c) (a) is whichever is the greater of the rates specified under paragraph (6) and the rate applicable to the debt apart from the administration.
+Rule 14.23(6) provides that the relevant rate of interest is that specified in section 17 of the Judgments Act 1838 (1 & 2 Vict c 110), which was, at the material time, 8% per annum.
+The relevant date referred to in rule 14.23(7)(a) is the date upon which the company entered administration; see rule 14.1(3).
+In In re Lehman Brothers International (Europe) (in administration) (No 6) [2015] EWHC Civ 2269 (Ch); [2016] Bus LR 17, para 149, David Richards J said this about statutory interest payable under the predecessor of rule 14.23(7): The right to interest out of a surplus under rule 2.88 is not a right to the payment of interest accruing due from time to time during the period between the commencement of the administration and the payment of the dividend or dividends on the proved debts.
+The dividends cannot be appropriated between the proved debts and interest accruing due under rule 2.88, because at the date of the dividends no interest was payable at that time pursuant to rule 2.88.
+The entitlement under rule 2.88 to interest is a purely statutory entitlement, arising once there is a surplus and payable only out of that surplus.
+The entitlement under rule 2.88 does not involve any remission to contractual or other rights existing apart from the administration.
+It is a fundamental feature of rule 2.88, and a primary recommendation of the Cork Committee that all creditors should be entitled to receive interest out of surplus in respect of the periods before payment of dividends on their proved debts, irrespective of whether, apart from the insolvency process, those debts would carry interest.
+In the present case, in the Court of Appeal [2018] Bus LR 730, after citing
+that passage in full, Patten LJ continued, at para 16: There is no doubt at all that statutory interest, as David Richards J explained, is not a continuing liability which accrues from day to day on a prospective basis over the period to which it relates.
+It is paid, as I have said, as statutory compensation for the loss which the creditors have suffered by being kept out of their money for the period of the administration.
+I agree.
+In In re Lehman Brothers International (Europe) (in administration) (Nos 6 and 7) [2017] EWCA Civ 1462; [2018] Bus LR 508, para 26, giving the judgment of the Court of Appeal, Gloster LJ said of the simple words of rule 2.88(7), when aggregated with the following two paragraphs (all in substantially the same terms as are now to be found in rule 14.23, as set out above): this simple formula constitutes, in our view, a complete and clear code for the award of statutory interest on provable debts.
+As [counsel] put it, it contains all you need to know.
+In the present case, at first instance, Hildyard J said at para 16: In my judgment, the statutory right to interest is sui generis and is not to be equated with a right to interest which accrues over time.
+Again, I agree with both those dicta (and was a party to the first of them).
+Yearly Interest under the Income Tax Legislation
+follows: Section 874 of the Income Tax Act 2007 provides (so far as is relevant) as (1) This section applies if a payment of yearly interest arising in the United Kingdom is made (a) by a company, (b) by a local authority, (c) by or on behalf of a partnership of which a company is a member, or (d) by any person to another person whose usual place of abode is outside the United Kingdom. (2) The person by or through whom the payment is made must, on making the payment, deduct from it a sum representing income tax on it at the basic rate in force for the tax year in which it is made.
+There is no definition of the phrase yearly interest anywhere in the 2007 Act.
+Nonetheless there is this deeming provision in section 874, added by Schedule 11 to the Finance Act 2013: (5A) For the purposes of subsection (1) a payment of interest which is payable to an individual in respect of compensation is to be treated as a payment of yearly interest (irrespective of the period in respect of which the interest is paid).
+This is unfortunately another case in which the full meaning of an apparently innocent looking simple statutory phrase can only be addressed by reference to the historical deployment of that phrase, or equivalent phrases seeking to express the same concept, in early legislation.
+Hildyard J set out in an Appendix to his judgment an admirable brief summary of the history of the statutory provisions about deduction of yearly interest, beginning with the introduction of income tax by Pitts Income Tax Act 1799 (39 Geo 3 c 13).
+In the present case, the main reason for needing an understanding of the statutory history is so that important decisions about the underlying concepts behind yearly interest can be reliably interpreted, by reference to the particular context of the use of the phrase in the statute then in force.
+As would appear, the earliest of those authorities was decided in 1854, and the latest in 1981.
+The concept of yearly interest first appeared within the income tax legislation in section 208 of Addingtons Income Tax Act 1803 (43 Geo 3 c 122).
+It appeared as part of the phrase: Annuities, yearly Interest of Money, or other annual Payments whether the same shall be received and payable half yearly, or at any shorter or more distant Periods.
+Section 208 both charged yearly interest to tax and authorised the payer to deduct an amount equal to the tax chargeable on the interest.
+When income tax was reintroduced by Sir Robert Peel in the Income Tax Act 1842 (5 & 6 Vict c 35), section 102 charged to tax: Annuities, yearly Interest of Money, or other annual Payments.
+And, as in 1803, provided for deduction at source by the payer, where paid out of taxed profits or gains.
+Deduction of yearly interest at source was continued in Gladstones Income Tax Act 1853 (16 & 17 Vict c 34), by section 40, while Schedule D brought into charge: All Interest of Money, Annuities, and other annual Profits and Gains.
+From 1888 until 1965, a succession of provisions to substantially the same effect made it compulsory to deduct tax at source and to account for it to the Revenue where interest of any kind was not wholly paid out of taxed income, but permitted the deduction of tax at source and its retention in respect of yearly interest which was wholly paid out of taxed income.
+In relation to yearly interest, this enabled the interest payer to be compensated for the fact that yearly interest paid out was not deductible in computing his own taxable profits or gains.
+This dichotomy was, between 1918 and 1952, achieved by rules 21 and 19 respectively of the General Rules Applicable to all Schedules of the Income Tax Act 1918 (the 1918 Rules).
+In short, rule 21 was about all types of interest, whereas rule 19 was concerned only with yearly interest.
+From 1952 until 1965 this dichotomy was preserved by sections 169 (concerning yearly interest) and 170 (concerning interest of any kind) of the Income Tax Act 1952.
+This dichotomy between the treatment of interest of any kind which is not paid out of profits or gains and yearly interest which is so made was progressively unwound, first for corporate taxpayers by the Finance Act 1965 and then generally by the Finance Act 1969.
+The regime for deduction of tax on interest at source which has continued, without substantial change, from 1969 is that set out in section 54 of the Income and Corporation Taxes Act 1970, then section 349(2) and (3) Income and Corporation Taxes Act 1988 and, latterly, section 874 of the Income Tax Act 2007.
+In summary, it provides only for the mandatory deduction at source of tax on yearly interest paid by companies as well as certain other categories of payers, or paid by any person to someone whose usual place of abode is outside the UK.
+The issues
+In order to make sense of what follows, it is convenient at this stage to provide a bare outline of what is and is not in issue, under the general question whether or not statutory interest payable by administrators out of a surplus is yearly interest.
+It has been common ground throughout this litigation that the payments are properly to be regarded as interest, not merely because they are so described in rule 14.23(7), but also within the meaning of the word as used in section 874(1).
+As will appear (and as the Court of Appeal concluded) that apparent concession by the administrators serves more to mask than to define the real issues.
+The main thrust of the administrators submissions (by Mr David Goldberg QC and Mr Daniel Bayfield QC in this court although Mr Goldberg did not appear below) has been to contrast the characteristics which the authorities show are required for the classification of interest as yearly interest with those of interest payable from a surplus in administration.
+The required characteristics are that the interest should derive from a source with the requisite degree of permanence and durability over time, and that the interest should accrue due over a period intended, or at least likely to last for a year or more.
+By contrast, it is submitted, statutory interest payable from a surplus in administration has, as its source, first the emergence of a surplus and second the decision of the administrators that it is time to pay it.
+It does not accrue due over any significant or likely period of time.
+Rather it is simply payable out of that surplus once it has been ascertained and turned into money, usually (and as here) by a single payment of a lump sum to each qualifying creditor.
+For HMRC it is submitted (by Mr Malcolm Gammie QC and Ms Catherine Addy QC) first, that it is unnecessary to identify a source for a statutory interest payment to qualify for deduction under section 874(1) and secondly, that it is not a requirement of yearly interest that it should accrue due over a period of time.
+Rather, the characteristic which satisfies the requirement that the interest should be yearly is that, once a surplus has been identified, the statutory interest is payable in respect of the period, commencing with the beginning of the administration, and ending with payment of the proving creditors debts in full, during which the creditors have been kept out of their money.
+If that period is, on the facts about a particular administration, in excess of a year, then the requirement for duration over time encapsulated in the word yearly is satisfied.
+Further, to the extent that the authorities made it a requirement that the source of the interest should be something in the nature of an investment, this was satisfied in relation to all LBIEs creditors, and regardless of the basis of their claims admitted to proof, because they were involuntary long term investors in LBIE by reason of the moratorium placed upon their claims by its administration.
+At first instance, Hildyard J was persuaded that the absence of any accrual over time (prior to the identification of a surplus and its quantification after payment of all proved debts in full) was fatal to the categorisation of statutory interest as yearly interest.
+By contrast, the Court of Appeal could discern no requirement from the authorities that yearly interest should accrue due over time.
+Since it was compensation for the proving creditors being kept out of their money for a substantial time, the interest had the requisite long term quality sufficient for it to be categorised as yearly.
+The Authorities
+The relevant authorities may broadly be divided into two groups.
+First, there are those which address the question whether interest which does accrue due over time is properly to be categorised as yearly interest or, in bankers jargon, short interest.
+Secondly, there are those authorities which address the question whether an entitlement to money described as interest, but which does not accrue due over time, can properly be regarded as yearly interest, or indeed interest at all, within the meaning of the income tax legislation.
+This second group 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.
+As will appear, it is this second group of authorities which, in my view, provides the answer to the questions raised by this appeal, albeit only by analogy because, as the judge himself observed, statutory interest payable from a surplus realised in a distributing administration is sui generis.
+Nevertheless it is convenient to take the first (generally earlier) group of authorities first.
+The earliest is Bebb v Bunny (1854) 1 K & J 216.
+The question was whether interest contractually payable upon the late completion of a contract for the purchase of land was yearly interest of money within the meaning of section 40 of the Income Tax Act 1853, so that it was payable subject to deduction of tax, either by the purchaser or by the court, even if paid into court gross as the condition for a decree of specific performance against the vendor.
+In deciding that it was yearly interest, Sir William Page Wood V C said, at pp 219 220: The whole difficulty is in the expression yearly interest of money; but I think it susceptible of this view, that it is interest reserved, at a given rate per cent per annum; or, at least, in the construction of this Act, I must hold that any interest which may be or become payable de anno in annum, though accruing de die in diem, is within the 40th section.
+I cannot make any solid distinction between interest on mortgage money and interest on purchase money.
+I consider the Act very singularly worded, yearly interest being used apparently in the same sense as annual payments; but I am clearly of opinion that it means at least all interest at a yearly rate, and which may have to be paid de anno in annum; such as interest on purchase money, as well as mortgage interest; and that, therefore, the purchaser is entitled to deduct the tax in this case.
+The reference to mortgage money, by way of analogy, becomes intelligible when it is understood that the drafting practice of the time was typically to make mortgage loans repayable, with interest, on a fixed date, usually less than a year after the making of the advance, even if the parties expectation was that the mortgage would endure for much longer, before redemption, with interest being payable periodically in the meantime.
+As the Vice Chancellor put it, at p 218: Most mortgage deeds contain only a covenant to pay the principal, with interest at a certain rate per annum, on a day certain.
+After that it accrues de die in diem, and the interest, without any particular reservation, ordinarily is received half yearly, from year to year.
+It is difficult to see the distinction between interest so reserved and paid, and that which by special agreement accrues on purchase money, which also goes on from day to day, and may run on for a year or stop at any time on payment of the purchase money, and which, in some shape or other, forms a lien on the property.
+Thus it was the propensity, rather than the intention or inevitability, for interest payable during a period of delayed completion to run on for more than a year which made it yearly interest, even though in many cases the delay in the completion of the purchase might well be much shorter.
+The potentially very wide interpretation of yearly interest in Bebb v Bunny was, in a series of later cases, significantly curtailed, albeit that in none of them was the decision held to have been wrong.
+On the contrary, it has remained the leading case.
+Goslings & Sharpe v Blake (1889) 23 QBD 324 was about a three months bankers loan, repayable with interest on a fixed date, interest being calculated by reference to a rate per annum, an example of what Lindley LJ called, at p 330: short loans by bankers.
+It establishes two principles relevant to the question whether interest is yearly interest (then within the meaning of section 40 of the Income Tax Act 1853).
+The first is that interest is not yearly interest merely because it is calculated by reference to a rate per annum: see per Lord Esher MR, at p 328.
+Secondly it establishes that the question whether the interest is yearly or short depends upon a business like rather than dry legal assessment of its likely duration.
+At p 330, speaking of the mortgage example used in Bebb v Bunny, Lindley LJ said: The difficulty is not lessened by the circumstance that most mortgages are loans for six months.
+The ordinary form of mortgage contains a covenant to repay the loan in six months, and if not then paid a covenant to pay interest until the loan is repaid.
+Those are short loans; but in fact, as men of business, we know perfectly well that, except in exceptional cases, money lent on mortgages is very seldom repaid at the end of six months, the mortgagee usually being content with his security and receiving his interest half yearly.
+In point of business, therefore, a mortgage is not a short loan; but a bankers loan at three months is a totally different thing.
+That is a short loan, it is intended and understood to be a short loan, and the difference in practice between the two is perfectly well known to every business man.
+The first relevant case about whether statutory (rather than contractual) interest can be yearly interest is In re Cooper [1911] 2 KB 550, in which objection was taken to the supposed failure of a judgment creditor to deduct tax from statutory interest due on the judgment relied on in a bankruptcy notice served on the judgment debtor.
+That depended upon whether the interest was yearly interest.
+In deciding that interest payable on a judgment debt under the Judgment Act was not yearly interest Cozens Hardy MR said this, at p 553: The words yearly interest are satisfied although the interest be not payable yearly but be payable quarterly or half yearly, and further, as in the case of a mortgage, although the money is covenanted to be paid six months after date in the ordinary course of a mortgage, the court treats that as being a transaction to the knowledge and the reasonable intendment of all parties, upon which yearly interest was payable in the understanding and contemplation of all parties, it being really in the nature of an investment.(my emphasis)
+He continued: Now in the present case I ask myself is it possible to suppose that this was a transaction in which anybody contemplated or intended anything permanent? It is quite impossible so to regard it.
+At first blush, this decision of the Court of Appeal might appear to suggest that statutory interest could never be yearly interest because it arose otherwise than pursuant to any agreement, transaction or common intention of the parties.
+Subsequent cases have shown that this is not so but the concept of addressing the yearly interest question by reference to a perception whether the source of the interest can properly be regarded as a form of investment has survived.
+A negative answer to that question in relation to statutory interest from a surplus in administration formed a major plank in the administrators submissions.
+A question deliberately left open in the Goslings case was whether interest on a short loan could nonetheless become yearly interest if the loan was left outstanding for more than a year.
+In Gateshead Corpn v Lumsden [1914] 2 KB 883 the plaintiff local authority had become entitled against the owners (including the defendant) of premises fronting a street which it had paved and made up, to a proportion of its costs, plus interest at 5% per annum.
+Although the Corporation had no settled practice of allowing these statutory debts to remain outstanding for periods of more than a year, it did so in relation to the defendant, who made payments on account of interest and capital from time to time.
+The Court of Appeal rejected a submission that the Corporations forbearance converted interest into yearly interest within the meaning of section 40 of the 1853 Act.
+Applying the principle which he extracted from In re Cooper, Lord Sumner said, at pp 889 890: applying the principle underlying that decision, I am unable to see how the words yearly interest can apply to this transaction.
+There is no agreement for a short loan or a long loan.
+The debt is due and repayment is not enforced; only in that sense is there a loan.
+Truly speaking there is simply a forbearance to put in suit the remedy for a debt.
+The repayment might have been enforced at any moment.
+The debt might have been paid by the debtor at any moment.
+Lord Sumner was careful to put on one side any case in which it might be established that the local authority had a settled practice of leaving statutory debts for street improvements outstanding for substantial periods of time.
+But the decision is good authority for the proposition that mere forbearance by a creditor who is entitled to statutory interest on a debt which is immediately due and payable does not bring that statutory interest within the confines of yearly interest.
+It serves as a caution against treating the words of Sir William Page Wood V C in Bebb v Bunny (quoted above) as meaning that the mere possibility that a stream of interest may endure for more than a year is sufficient in all cases to make it yearly interest.
+The investment test first enunciated in In re Cooper gains force from the analysis of Rowlatt J in Garston Overseers v Carlisle [1915] 3 KB 381.
+Persons claiming to be charitable trustees enjoyed a long standing arrangement with their bankers whereby credits on current accounts generated interest.
+The question was whether that was yearly interest within section 105 of the Income Tax Act 1842, qualifying for deduction at source.
+By concession, that phrase in section 105 was treated as having the same meaning as in section 40 of the Income Tax Act 1853.
+Referring to the case law on section 40, Rowlatt J said this, at p 386: The broad result of the decisions in those cases is, I think, that yearly interest means, substantially, interest irrespective of the precise time in which it is collected, interest on sums which are outstanding by way of investment as opposed to short loans or as opposed to moneys presently payable and held over or anything of that kind.
+He continued, at p 387: They (the overseers) are to levy rates as far as they can for their current expenditure.
+However, they must necessarily keep a small balance in hand, and they get interest upon it under the arrangements which the bank were willing to make.
+It is no doubt contemplated that the balance will continue for a long time; but what is the daily balance? It is not even a short loan; it is merely money at call, money payable on demand.
+Since those temporary balances could not be described as investments, the interest payable was not yearly interest.
+An attempt to reduce this jurisprudence to a concrete set of useful propositions was made by Lord Anderson, sitting in the Inner House (Second Division) of the Court of Session in Inland Revenue Comrs v Hay (1924) VIII TC 636 at 646.
+The case was about yearly interest within the meaning of section 27(1)(b) of the Income Tax Act 1918, but it was, again, common ground that the phrase had the same meaning as was under consideration in all the earlier cases, beginning with Bebb v Bunny.
+Lord Anderson said this: Now the authorities referred to by Crown Counsel seem to me to establish these propositions, five in number: (First), that interest payable in respect of a short loan is not yearly interest (Goslings ). (Second) that in order that interest payable may be held to be yearly interest in the sense of the Income Tax Acts, the loan in respect of which interest is paid must have a measure of permanence. (Third), that the loan must be of the nature and this is pretty well expressing the second proposition in another form that the loan must be of the nature of an investment (Garston Overseers). (Fourth), That the loan must not be one repayable on demand (Gateshead Corpn ).
+And (fifth) that the loan must have a tract of future time (per Lord Johnston in Scottish North American Trust Ltd, 1910 Session Cases 966, 973).
+These propositions are perhaps one proposition expressed in different forms, but they are the result of the authorities.
+I will refer these tests as the Hay tests.
+Some further support for the pre eminence of the investment test is to be found in the judgment of Lord Denning MR in Corinthian Securities Ltd v Cato [1970] 1 QB 377, at 382 383.
+After referring to Inland Revenue Comrs v Hay, he continued: The words short loan are not used in the statute: it is a mistake to place too much emphasis on them.
+The real question is whether the interest payable is yearly interest of money.
+Interest is yearly interest of money whenever it is paid on a loan which is in the nature of an investment no matter whether it is repayable on demand or not.
+After reviewing the Goslings case he continued: Looking at the agreement in this case, it is plain to me that this loan was made as an investment.
+Although payable on demand, it was unlikely that any demand would be made so long as the interest payments were kept up.
+It was a loan on the security of property, indistinguishable in principle from an ordinary loan or mortgage.
+The interest was yearly interest of money.
+Some cold water was cast upon the investment test by Sir John Donaldson MR in Cairns v MacDiarmid [1983] STC 178, at 181, as follows: It is well settled that the difference between what is annual and what is short interest depends on the intention of the parties.
+Thus interest payable on a mortgage providing for repayment of the money after six months, or indeed a shorter period, will still be annual interest if calculated at a yearly rate and if the intention of the parties is that it may have to be paid from year to year (Bebb v Bunny Corinthian Securities Ltd v Cato ).
+I would personally wish to avoid the use of the term investment as providing any sort of test in the context of whether interest is annual interest, notwithstanding its use in the latter case, because it is possible to have a short term and indeed a very short term investment, eg overnight deposits, and such an investment does not involve any annual interest, regardless of whether the interest is calculated at an annual rate.
+That was a case in which it had been found that the loan was never intended to last for more than a few days, although there was an entitlement to postpone repayment for two years.
+It had, as intended, been discharged within a week, by novation.
+In my view the difference in approach to the use of investment as a test between that case and those which preceded it has more to do with changes in what the financial world regards as an investment than with any change in the underlying tax law.
+I consider that the Hay tests remain the best convenient summary of the jurisprudence about the meaning of yearly interest, in the context of interest which accrues due over time, whether purely contractual or statutory in origin.
+I turn now to the second group of cases, all of which were concerned with interest payable after the event (and usually in one lump sum) as compensation for the payee being kept out of money or property during some earlier period.
+The common characteristic of these cases, shared with this case, is that the interest does not accrue due during the period in question.
+Rather, it is awarded after the period has ended, as compensation relating to that earlier period.
+Taking them chronologically, the first is Barlow v Inland Revenue Comrs (1937) 21 TC 354.
+In 1923 the appellant, who was a trustee of settlements in favour of his children, realised the trust investments and reinvested the proceeds in his own name in unauthorised securities which subsequently fell in value.
+Recognising that he acted in breach of trust, by a deed made in March 1930 he covenanted to pay his fellow trustees an amount equivalent to the proceeds of the realisation in 1923, together with compound interest at 5% per annum from the date of realisation until 1 January 1930.
+Finlay J, on appeal from the Special Commissioners, held that the interest element in the lump sum agreed to be paid by the deed was yearly interest.
+Following Vyse v Foster (1872) LR 8 Ch App 309 and Inland Revenue Comrs v Barnato [1936] 2 All ER 1176, he held that where a trustee agrees to pay principal and interest in respect of his breach of trust in relation to a period in the past, the interest element is properly to be regarded as interest (rather than damages) because the beneficiary has a right to elect between interest and an account of profits in respect of the period during which the trust property was mis applied.
+He held that it was yearly interest on the basis that it fell clearly within the definition as explained in Bebb v Bunny.
+Although he did not say so in terms, this must have been because of the lengthy period of over six years prior to the March 1930 deed in respect of which the trustee had been accountable.
+In the famous litigation known as Regal Hastings v Gulliver the House of Lords had, in an order made in February 1942 [1967] 2 AC 134; [1942] 1 All ER 378, found that the defendant directors were liable to account to their company for a profit made by them in 1935 from the use of information which they held as fiduciaries.
+Interest at 4% per annum was ordered to be paid from the dates in October and December 1935 when the defendants had made the relevant profits.
+In March 1942 the defendants paid what they regarded as owing to the company including interest, but they deducted income tax on the interest element.
+Cassels J held (1944) 24 ATC 297, that this was yearly interest, deductible either under rule 19 or under rule 21 of the 1918 Rules.
+Although rule 21 related to interest of all kinds, rule 19 related only to yearly interest.
+The outcome was therefore much the same as it had been in the Barlow case save that, whereas the trustee in that case had volunteered an account including interest to the beneficiary, the liability of the defendant trustees in Regal Hastings v Gulliver had only been ascertained, after lengthy litigation, in the House of Lords.
+It was sufficient for Cassels Js decision that the interest was yearly interest that it had been paid in respect of a period of accountability of some six and a half years, so that cases such as the Gosling case were plainly distinguishable.
+The next, and most important case, is Riches v Westminster Bank Ltd [1947] AC 390.
+Section 3(1) of the Law Reform (Miscellaneous Provisions) Act 1934 provides that: In any proceedings tried in any court of record for the recovery of any debt or damages, the court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment.
+This discretion applies, as Viscount Simon said at p 397, regardless whether there is or is not a contractual right to interest which underlies the cause of action.
+He said that: The added amount may be regarded as given to meet the injury suffered through not getting payment of the lump sum promptly, but that does not alter the fact that what is added is interest.
+At p 398 he addressed a submission to the effect that an order for interest under section 3 could not be interest within the meaning of the Income Tax Acts because the added sum only came into existence when the judgment was given and from that moment had no accretions under the order awarding it.
+Viscount Simon said: But I see no reason why, when the judge orders payment of interest from a past date on the amount of the main sum awarded (or on a part of it) this supplemental payment, the size of which grows from day to day by taking a fraction of so much per cent per annum of the amount on which interest is ordered, and by the payment of which further growth is stopped, should not be treated as interest attracting income tax.
+It is not capital.
+It is rather the accumulated fruit of a tree which the tree produces regularly until payment.
+Addressing the submission that the payment under section 3 was, however described, in truth damages, Lord Wright said, at pp 399 400: The appellants contention is in any case artificial and is in my opinion erroneous because the essence of interest is that it is a payment which becomes due because the creditor has not had his money at the due date.
+It may be regarded either as representing the profit he might have made if he had had the use of the money, or conversely the loss he suffered because he had not that use.
+The general idea is that he is entitled to compensation for the deprivation.
+Later, at p 403, he said: It was said that the sum in question could not be interest at all because interest implies a recurrence of periodical accretions, whereas this sum came to existence uno flatu by the judgment of the court and was fixed once for all.
+But in truth it represented the total of the periodical accretions of interest during the whole time in which payment of the debt was withheld.
+The sum awarded was the summation of the total of all the recurring interest items.
+Lord Simonds addressed the same submission at p 410 as follows: It was further urged on behalf of the appellant that the interest ordered to be paid to him was not interest of money for the purpose of tax because it had no existence until it was awarded and did not have the quality of being recurrent or being capable of recurrence.
+This argument was founded on certain observations of Lord Maugham in Moss Empires Ltd v Inland Revenue Comrs [1937] AC 785, 795, in regard to the meaning of the word annual.
+It would be sufficient to say that we are here dealing with words in the Income Tax Act which do not include either annual or yearly, but in any case I do not understand why a sum which is calculated upon the footing that it accrues de die in diem has not the essential quality of recurrence in sufficient measure to bring it within the scope of income tax.
+It is surely irrelevant that the calculation begins on one day and ends on another.
+It is more important to bear in mind that it is income.
+In 1947 the income tax treatment of interest was still subject to the dichotomy described in paras 14 15 above.
+Tax on interest of any kind had to be deducted at source if not wholly paid out of taxed income, pursuant to rule 21 of the 1918 Rules.
+By contrast, rule 19 permitted the deduction (and retention) of tax at source where yearly interest was paid wholly out of taxed income.
+The Riches case was about rule 21 rather than rule 19 but the interest awarded under section 3 of the 1934 Act represented interest from June 1936 until May 1943, being the period since the arising of the cause of action during which the plaintiff had been kept out of his money.
+As Patten LJ observed in the present case (at para 54, referring back to para 25), the passage in Lord Simonds speech quoted above suggests that he would have regarded the statutory interest awarded in that case as both interest and yearly interest for the purposes of the Income Tax Acts.
+This is because he regarded the payment of a single lump sum by way of interest after the event, referable to an earlier period for which the claimant needed compensation for being kept out of his money, as having the requisite quality of recurrence.
+Recurrence over seven years is plainly sufficient for that purpose.
+Jefford v Gee [1970] 2 QB 130 was another case about an award of interest under section 3 of the 1934 Act.
+The award was made in June 1969 by way of addition to damages for personal injuries incurred by the plaintiff in a motor accident in November 1966.
+It therefore compensated the claimant for having been kept out of his money for some two and a half years.
+At p 146, addressing the principles applicable to an award of interest in personal injury cases under section 3 of the 1934 Act, Lord Denning MR said: Interest should not be awarded as compensation for the damage done.
+It should only be awarded to a plaintiff for being kept out of money which ought to have been paid to him.
+Later, under the heading Tax, at p 149, he continued: When the court awards interest on debt or damages for two, three or four years, the interest is subject to tax because it is yearly interest of money: see Riches v Westminster Bank [1947] AC 390.
+It has been suggested (for example by Hildyard J at para 71(2) of his judgment) that Lord Denning MR may have failed to appreciate that the Riches case was about interest rather than yearly interest.
+In my view this ignores Lord Denning MRs reference to the period of two, three or four years in respect of which interest is awarded.
+He was entitled to conclude that, even if the Riches case only established that the relevant payments were interest for tax purposes, they were nonetheless yearly interest because of the historical period of several years in respect of which the lump sum award of interest was made.
+Chevron Petroleum (UK) Ltd v BP Petroleum Development Ltd [1981] STC 689 is about the interest element in rolled up payments by way of contribution to expenses in a joint venture agreement for the exploitation of the Ninian oilfield in the North Sea.
+The participants made payments against the expenditure in accordance with their expected share of the production.
+Provision was made for each participating groups share to be adjusted in the light of later experience of actual production.
+After an accounting which added interest to the amounts expended, the participants were credited or debited with the differences between their contributions on account and their adjusted contribution liability.
+Thus the liability to make payments against debits was contingent upon share adjustments pending final calculations, and the interest element in them related to periods of time which had passed before any payment liability fell due.
+Nonetheless Sir Robert Megarry V C held that the interest element was yearly interest, and therefore subject to deduction at source.
+He said, at p 696: I cannot see why the contingency should deprive the so called interest of the quality of being true interest.
+If X lends 100 to Y, the loan to carry interest at 10% per annum, why should a provision for repayment and interest to be waived in certain events, or for repayment with interest to be made only in certain events, prevent the interest from being true interest if in the event it becomes payable? Later, at pp 696 697, commenting upon the Riches case and interest awarded under section 3 of the 1934 Act, he continued: Although the obligation to pay interest was created by the judgment, the award was made on the basis that the defendant ought to have paid the money sued for at an earlier date and had not done so.
+The interest awarded was interest in respect of the plaintiff having been wrongfully kept out of the money: .
+That was not so in the present case, where the operating parties had duly paid all that was due from them under the contract at the time when it was due.
+I do not think that this point, or, indeed, any other point, suffices to distinguish the Riches case.
+If a contract (eg with a builder) provides for specified payments to be made on account of the final liability, and for interest at a specified rate to be paid on any balance when the final accounts have been agreed, the fact that all the specified payments on account were punctually made does not, it seems to me, prevent the interest payable on the balance from being truly interest.
+Analysis
+The statutory interest in the present case shares many of the relevant features with the contractual provision for interest in the Chevron case.
+In both cases it cannot be known during the period in respect of which interest is calculated whether it will in fact be payable at all.
+In the Chevron case liability depended upon an adjustment of participants shares made in the light of actual production, after the relevant expenditure was incurred, which increased rather than reduced the relevant participants share of the liability to fund expenses.
+In this case it depends upon the realisation of a surplus after payment of proving creditors claims in full, necessarily after the commencement of the administration and indeed after the end of the period in respect of which interest is calculated, which ends upon payment of the creditors debts.
+In both cases there is no liability to pay interest during the period in respect of which it is calculated.
+In both cases the interest is not itself payable over a period of time.
+It is rolled up and payable in a single lump sum.
+In short the interest is not an income stream, payable over a period of a year or more, but it is nonetheless income rather than capital, as the Vice Chancellor was at pains to emphasise, at p 696.
+More generally the relevant features of the interest in this case have much more in common with the second group of cases about statutory interest under section 3 of the 1934 Act, and about interest ordered or agreed to be paid by a trustee or fiduciary in respect of a past loss or misapplication of trust property than they have with the first group of cases about interest accruing due and payable immediately, or over time, beginning with Bebb v Bunny.
+This is not because the interest is statutory rather than contractual.
+There are examples of each in both groups.
+It is first because in none of the second group is the interest actually due and payable during the period by reference to which it is calculated, nor can it be said with certainty during that period that it ever will become due.
+But the interest is nonetheless payable, after the event, as a form of compensation for the recipients being in some way out of their money during the period in respect of which it is calculated.
+In the cases about interest under the 1934 Act the recipients are (usually) compensated for that loss during the period when they have a cause of action for debt or damages, until a judgment gives them an enforceable right to payment.
+In the trust cases the beneficiary is compensated by payment of interest for the loss (if any) represented or caused by the trust fund being out of the monetary value of the trust property lost or misappropriated by the trustee, until the trustee accounts and pays that sum back into the trust fund.
+In the Chevron case the payment of interest by the participants who later incurred an increased contribution share compensated those participants who, in the light of production experience, turned out to have paid more than their fair share of the cost of generating it.
+In the present case, as Mr Goldberg was at pains to emphasise, it cannot generally be said from the commencement of an administration whether there will ever be generated a surplus out of which statutory interest will become payable.
+Such surpluses are in fact very rare indeed.
+It may be that, during that period, the process of asset recovery by the administrators will make a surplus more likely, but even then its amount and the timing of any interest payment will all depend upon countless contingencies, including (in this case) long drawn out litigation about the amount of creditors claims.
+Statutory interest is never due until after all proving creditors have been paid in full.
+There is always a risk that an administration will be followed by a winding up, with unfortunate (and probably unforeseen) consequences upon the availability of interest under rule 14.23, even if there is a surplus: see In re Lehman Brothers International (Europe) (in administration) (No 4) [2018] AC 465 per Lord Neuberger of Abbotsbury, at paras 117 to 121.
+Nonetheless, as rule 14.23 makes clear in the plainest terms, the interest once paid compensates proving creditors for being kept out of their proved debts from the commencement of the administration (which prevents them seeking any other form of recovery), until they are actually paid.
+Mr Goldberg sought to distinguish the trust cases on the basis that, pursuant to Vyse v Foster, a beneficiary had an enforceable right to interest from the moment when the trust property was lost or misapplied.
+For the reasons given by Patten LJ in the Court of Appeal, at paras 45 to 50, based upon Target Holdings Ltd v Redferns [1996] AC 421, this is not the correct analysis of the basis upon which the court awards interest in equity.
+It is discretionary, like interest under the 1934 Act, even though the discretion may be exercisable in accordance with well settled principles.
+It is true, as the administrators submitted, that some of the second group of cases were primarily concerned with the question whether payments described as interest were truly interest at all for income tax purposes, rather than whether they were yearly interest.
+In the Riches case this was because the question arose under a provision in the 1918 Rules relating to all types of interest.
+In Jefford v Gee it may be that Lord Denning MR was not overly concerned with whether the interest was yearly or not, although he certainly took notice of the fact that the plaintiff had been out of his money for several years.
+In the Chevron case the contrary argument was that the element in the rolled up payment described as interest was not interest at all.
+There may have been no dispute that, if it was, it was yearly interest.
+By contrast in the present case it has been common ground throughout that statutory interest under rule 14.23 is interest for the purposes of income tax.
+But those cases nonetheless provide the answer to the conundrum: what period of durability is to be identified for interest payable in a single lump sum as compensation for the payee being out of the money in the past, for the purpose of deciding whether it is to be treated as yearly interest, under the Hay principles? The simple answer, supplied by all the second group of cases, is that it is the period in respect of which the interest is calculated, because that is the period during which the loss of the use of money or property has been incurred, for which the interest is to be compensation.
+This appears also to have been the assumption made by the drafter of what is now section 874(5A), quoted above.
+It deems payment of interest to an individual in respect of compensation to be yearly interest irrespective of the period in respect of which the interest is paid.
+This suggests that, but for the deeming provision (introduced, so the court was told, to deal with compensation for mis selling of Payment Protection Insurance), the question whether the interest would or would not have been yearly interest would have depended upon the duration of the period in respect of which the compensatory interest was calculated.
+It may of course be said that this approach has nothing to do with the intentions of the payer and the payee, and that, for most of the relevant period it will not be known when it will end, or whether interest as compensation for that loss will ever be paid.
+This is true of all the second group of cases, just as in the present case.
+But this gives rise to no relevant uncertainty.
+The payer will always know what that period is by the time that the interest becomes due and will be able to deduct tax or pay gross accordingly.
+In the case of interest under the 1934 Act the judge is required to identify the period.
+In the trust cases the order for payment of interest will also be by reference to a defined period.
+In the present case the period is fixed by the date of commencement of the administration and the date (or dates) upon which the proving creditors are paid their debts.
+I must finally address the group of submissions deployed by the administrators under the heading source.
+These were not deployed with any prominence in, or at least addressed by, the Court of Appeal, but they were advanced at the forefront of Mr Goldbergs submissions in this court.
+The argument goes like this.
+Income Tax is, and always has been, levied by reference to the source of the relevant income.
+The only source from which interest under rule 14.23 can be said to derive, apart from the statutory provision itself, is the combination of a realised surplus and a decision by the administrators that it is time to pay it.
+Those elements cannot, either singly or together, be said to have the quality of durability over time sufficient to make the interest yearly interest for income tax purposes, applying the Hay tests.
+They are unpredictable, liable to evaporate in the event of a winding up, will generally not have existed for a year before payment, and cannot be regarded as being in the nature of an investment.
+The period of time in respect of which the statutory interest is calculated cannot itself be regarded as a source of the interest.
+If there has to be a search for any source of the statutory interest other than the surplus and the decision to pay, it can only be the contractual debts owed by LBIE to its creditors at the moment when it went into administration, but those debts were mainly short term in nature, lacking the requisite capacity to generate yearly interest.
+Furthermore for income to be taxable at all the source has to be in existence at the time when the income becomes due and payable.
+Neither those contractual debts, nor the provable debts which replaced them from the commencement of the administration, remained in existence when the statutory interest became payable.
+They had all by then been discharged by payment in full.
+The short answer to this submission is that, if it were correct, all the second group of cases would have been wrongly decided.
+In none of them did the interest under review have a source in the sense of some kind of durable investment.
+In the equity cases the beneficiaries received interest by way of compensation for part of their trust fund being lost or misappropriated.
+In the cases under the 1934 Act the plaintiffs were being compensated for the delayed payment of damages, in one case for the pain and suffering occasioned by a broken leg which had no doubt healed long before the interest became due.
+In the Chevron case one group of joint venturers were in substance being compensated, long after the event, for having contributed more than their fair share of the expenses.
+But the flaws in the submission are more fundamental than that.
+First, the obligation to deduct tax from interest under section 874 does not depend at all upon the question whether the interest is taxable in the hands of the recipient.
+If the payment is yearly interest, and the payers (or the circumstances) qualify, for example because the payer is a company, or the usual place of abode of the recipient is offshore, then tax must be deducted.
+There is no requirement to identify a source at all, in the case of statutory or other UK interest.
+At the most it may be said that the first group of cases can loosely be characterised as involving an examination of the source of the interest as part of the inquiry about whether the income in question was yearly interest of money.
+Secondly, it is artificial to regard the source of statutory interest as having anything to do with the realisation of the surplus, still less the decision of the administrators to pay it, even though the combination of those two factors may be said to have been the immediate cause of the interest becoming payable.
+Of course the interest may be said to derive from the surplus, in the sense of constituting the fund from which it came, but the concept of source in that literal sense had nothing whatever to do with the characterisation of the payments as yearly interest in any of the second group of cases or, for that matter, even in the first group.
+As for the decision of the administrators to pay, this broadly equates with the exercise of a judicial discretion, both in the equity cases and those under the 1934 Act.
+To the limited extent that it may be said to render the right to payment contingent, it is a much less formidable contingency than the exercise of judicial discretion.
+In truth the administrators have no real discretion at all.
+Thirdly, to the extent that it is instructive to look for a source of the statutory interest under rule 14.23, the obvious candidate is the status of the recipient as a proving creditor during the period between the commencement of the administration until payment of the principal amount by dividend.
+That is a statutory status created by the insolvency code laid down by the Insolvency Act and Rules, which (as we now know) replaces the creditors former contractual rights at the commencement of the administration.
+It precisely coincides with the period in respect of which the statutory interest is calculated and, for the reasons given above, amply fulfils the necessary quality of durability over time.
+Finally, if it were necessary to do so, I would regard the status of a proving creditor in a distributing administration as having the requisite character of being an investor, albeit an unwilling and involuntary one.
+It is no mere irony that LBIEs unsecured debt has, during that last ten years, turned out to be a very satisfactory long term investment, generating interest, payable in full, at a handsome 8%.
+For all those reasons, which do not differ in their essentials from those given by Patten LJ in the Court of Appeal, I would dismiss this appeal.
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+On Saturday 15 June 1974, in the late morning, an army patrol consisting of two military vehicles was travelling towards Benburb, County Tyrone.
+The vehicles contained members of the Life Guards regiment.
+The lead vehicle had six men on board.
+The commander of the patrol, who was travelling in that vehicle, was Dennis Hutchings, the appellant in this case.
+As the patrol rounded a left hand bend near a village called Eglish on what was a winding road, a young man came into view, standing on the left hand side of the road.
+He appeared to be looking into the hedge at the side of the road.
+His name was John Paul Cunningham.
+Mr Cunningham appeared startled and confused.
+He ran across the road in front of the lead vehicle and climbed a gate into a neighbouring field.
+He then ran towards a metal fence which bordered the field.
+The patrol came to a halt on the appellants command.
+Most of the soldiers dismounted from the vehicles and took up defensive positions.
+Three members of the patrol, the appellant and two others, who have been referred to as B and E, pursued Mr Cunningham.
+Mr Hutchings and soldier E went towards the same gate that Mr Cunningham had climbed over.
+Soldier B went to a gateway further down the road.
+A number of shouted commands to Mr Cunningham to stop went unheeded.
+It later transpired that he had limited intellectual capacity.
+His mental age was judged to be between six and ten years.
+In a report by the Historical Enquiries Team (HET) (of which more below at para 9) it was said that he was easily confused and may have had an inherent fear of men in uniform and armoured vehicles.
+The case made by the prosecution is that when Mr Cunningham failed to stop, shots were discharged by the appellant and the soldier referred to as B. Mr Cunningham was hit and died at the scene.
+At the time that he fell, he was close to the metal fence.
+It has been established that he was running towards his home.
+HET concluded, after investigation, that he was unarmed; that he was shot while running away from the soldiers; and that there was no evidence that he presented a threat to them or to anyone else.
+Background
+In 1974 there was much terrorist activity in Northern Ireland.
+A large part of that activity was generated by the Provisional Irish Republican Army (PIRA).
+There were regular attacks on the security forces, including the British Army.
+The attacks frequently involved the use of firearms and explosives.
+The Life Guards regiment was responsible in 1974 for security force operations in Cookstown, Dungannon and Armagh and surrounding districts.
+Cookstown and Dungannon are in County Tyrone, as are Benburb and Eglish.
+Benburb is some 18 miles from Cookstown and about eight miles from Dungannon.
+Eglish is a small village that lies between Dungannon and Benburb.
+It is about five miles from Dungannon to Eglish and approximately the same distance from Eglish to Benburb.
+An army report about the time that Mr Cunningham was killed stated that the threat level in these areas was particularly high.
+There were frequent army patrols of the roads between these various locations.
+Indeed, in the first two weeks of June 1974 some 38% of shooting incidents in the Life Guards operational zone occurred in the area of Eglish.
+One of those attacks resulted in the death of a soldier in the Life Guards regiment.
+Two days before Mr Cunningham was killed, members of the Life Guards, under the command of Mr Hutchings, came upon a group of men loading material into a vehicle.
+A firefight, as it was described in the reports of the incident, ensued.
+Arms and explosives were discovered in the vehicle.
+This had occurred about three and a half miles from where Mr Cunningham was killed.
+Following the killing of Mr Cunningham, a joint inquiry by the Royal Ulster Constabulary (RUC) and the Royal Military Police took place.
+The then Director of Public Prosecutions reviewed the statements that this inquiry generated and decided that there should be no prosecution of any of the military personnel involved.
+HET was a body created in 2005 to examine historical offences that were committed during the period of terrorist violence in Northern Ireland and the states reaction to it.
+It conducted an inquiry into Mr Cunninghams death.
+It concluded that this was an absolute tragedy that should not have happened.
+It recommended, however, that no further action be taken in relation to the incident.
+In 2015 a new body, the Legacy Investigation Branch, conducted a new investigation into Mr Cunninghams death.
+As a result of this, the appellant was arrested and taken to a police station in Northern Ireland where he was interviewed.
+He answered no comment to all questions put to him.
+He was subsequently charged with two offences: the attempted murder of Mr Cunningham and attempting to cause him grievous bodily harm.
+On 20 April 2016, the Director of Public Prosecutions issued a certificate pursuant to section 1 of the Justice and Security (Northern Ireland) Act 2007 directing that the appellant stand trial on these charges by a judge sitting without a jury.
+It is accepted that the certificate was issued without prior notice to the appellant.
+He was not given an opportunity to make representations as to whether it should be issued.
+The material and information which led to the issue of the certificate have not been disclosed to him.
+He was not informed of its having been issued until 5 May 2017.
+The statutory provisions relating to the issue of certificates and challenges to their
+The relevant parts of section 1 of the 2007 Act are these: Issue of certificate (1) This section applies in relation to a person charged with one or more indictable offences (the defendant). (2) The Director of Public Prosecutions for Northern Ireland may issue a certificate that any trial on indictment of the defendant (and of any person committed for trial with the defendant) is to be conducted without a jury if (a) he suspects that any of the following conditions is met, and (b) he 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. (6) 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. (7) means hostility based to any extent on In subsection (6) religious or political hostility religious belief or political opinion, supposed religious belief or political (a) (b) opinion, or (c) the absence or supposed absence of any, or any particular, religious belief or political opinion. (8) In subsection (6) the references to persons and groups of persons need not include a reference to the defendant or to any victim of the offence or offences.
+The breadth of the power to direct that a trial be before a judge without a jury is immediately apparent from these provisions.
+The Director need only suspect that one of the stipulated conditions (in this case condition 4) is met and that there is a risk that the administration of justice might be impaired if there was a jury trial.
+The circumstances in which such a risk might materialise and the specific nature of the risk or the impairment to the administration of justice which might be occasioned are not specified.
+It can only be supposed that these matters were deliberately left open ended.
+The type of decision which the Director must take can be of the instinctual, impressionistic kind.
+Whilst the Director must of course be able to point to reasons for his decision, one can readily envisage that it may frequently not be based on hard evidence but on unverified intelligence or suspicions, or on general experience.
+It may partake of supposition and prediction of a possible outcome, rather than a firm conclusion drawn from established facts.
+The need, on occasions, for the Directors decision to depend on intuitive belief rather than studied analysis of evidence is also reflected in the fact that the circumstances covered by condition 4 are extremely wide.
+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 are covered.
+The PIRA campaign in Northern Ireland in the 1970s was based on that organisations political hostility to continuing British rule in that country.
+The incident that occurred a few days before Mr Cunningham was killed bore all the hallmarks of a PIRA operation.
+When this is considered with the incidence of terrorist activity in the area at the time, it is entirely unsurprising that the Director 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 members of PIRA against, as the Director put it in an affidavit, those who believed that Northern Ireland should remain a part of the United Kingdom.
+That the soldiers who fired on Mr Cunningham suspected that he was a member of PIRA seems inescapable. (I shall have more to say presently about the Directors reasons for issuing the certificate.)
+Section 7 of the Act provides: Limitation on challenge of issue of certificate (1) 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 circumstances (including exceptional circumstances relating to lack of jurisdiction or error of law). exceptional in particular (2) Subsection (1) is subject to section 7(1) of the Human Rights Act 1998 (claim that a public authority has infringed [a] Convention right).
+The other exceptional circumstances referred to in sub paragraph (c) of subsection (1) are not specified but they must take their flavour from the preceding provisions to the effect that challenges will be entertained on the grounds of bad faith and dishonesty and from the succeeding words of the sub paragraph, which particularise lack of jurisdiction or error of law.
+These are clear indications that, what has been described as the full panoply of judicial review superintendence (see In re Shukers and others applications for judicial review [2004] NIQB 20; [2004] NI 367 at para 25), is generally not available to challenge decisions by the Attorney General or the Director of Public Prosecutions as to the mode of trial for particular cases.
+By virtue of section 8(3) of the Act the provisions in sections 1 7 are applied to offences committed before the Act came into force.
+The offences with which the appellant has been charged are therefore covered by those provisions.
+Counsel for the appellant, Mr Lewis QC, drew our attention to the Explanatory Notes which accompany the 2007 Act.
+He pointed out that paragraph 7 of the Notes made it clear that it was anticipated that non jury trial would be ordered in a small number of exceptional cases and claimed that paragraphs 22 and 23, which dealt with condition 4 in section 1(6), indicated that that provision should be construed narrowly.
+These paragraphs read: 22.
+Condition 4 is set out in subsection (6).
+This covers circumstances where the offence occurred as a result of, or in connection with, sectarianism (ie in connection with religious belief or political opinion).
+Subsection (7) clarifies that religious belief and political opinion includes their absence and any assumptions made about religious beliefs or political opinions.
+Subsection (8) provides that the persons and groups of persons referred to in subsection (6) need not include the defendant or victim. 23.
+A case that falls within one of the conditions will not automatically be tried without a jury non jury trial will only happen if the DPP(NI) issues a certificate because he is satisfied that there is a risk that the administration of justice might be impaired.
+The judgment of the Divisional Court in the present case (Stephens LJ and Sir John Gillen [2017] NIQB 121) quoted from the Explanatory Notes see para 14.
+But at para 34 the court observed that reliance on the Notes had to be approached with some caution, quoting Lord Steyn in R (Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2956 at para 6 where he said that it was impermissible to treat the wishes and desires of the government about the scope of the statutory language as reflecting the will of Parliament.
+Mr Lewis criticised this passage of the Divisional Courts judgment, suggesting that it unwarrantably abbreviated the relevant reasoning to be found in the speech of Lord Steyn.
+In particular, he focused on statements in para 5 of the speech where Lord Steyn said: In so far as the Explanatory Notes cast light on the objective setting or contextual scene of the statute, and the mischief at which it is aimed, such materials are therefore always admissible aids to construction.
+They may be admitted for what logical value they have.
+Used for this purpose Explanatory Notes will sometimes be more informative and valuable than reports of the Law Commission or advisory committees, Government green or white papers, and the like.
+After all, the connection of Explanatory Notes with the shape of the proposed legislation is closer than pre parliamentary aids which in principle are already treated as admissible: see Cross, Statutory Interpretation, 3rd ed (1995), pp 160 161.
+I find it unnecessary to embark on a discussion about the use to which the Explanatory Notes might be put in this instance because I consider that the language of the relevant statutory provisions is perfectly clear.
+Those provisions invest the Director of Public Prosecutions with wide powers for the reasons earlier discussed.
+If anything, the actual provisions are more precise in their formulation than the Explanatory Notes.
+Recourse to the latter is unnecessary for the proper interpretation and application of the pertinent parts of the statute.
+As it happens, of course, nothing in the Explanatory Notes detracts from the interpretation to be placed on the statutory provisions, if they are analysed on a purely textual basis.
+Mr Lewis suggested that the reference to sectarianism in paragraph 22 of the Notes indicated that condition 4 was designed to cover situations of strife between the different communities in Northern Ireland.
+I do not accept that argument.
+Sectarianism can, of course, have the connotation of bigoted adherence to a particular sect but that is by no means its only possible meaning.
+The qualifying words in paragraph 22 of the Notes, ie in connection with religious belief or political opinion, make it clear that sectarianism, as it is used in the Notes, is sufficiently wide to embrace the circumstances in which Mr Cunningham was killed.
+If Mr Hutchings and soldier B fired on Mr Cunningham, believing him to be a member of PIRA, that would be sufficient to satisfy the requirement that the offences which are alleged to be constituted by that shooting were in connection with or in response to political hostility of one person towards another group of persons, namely the British Army.
+And if the Director suspected that this was so (as, realistically, he was bound to, and indeed avers that he did), then the first requirement of section 1(2), in so far as it related to condition 4, was met.
+Furthermore, if the Director was satisfied that, by reason of this circumstance, there was a risk that the administration of justice might be impaired if the trial were to be conducted with a jury, the second requirement of the subsection would likewise be fulfilled.
+Mr Lewis invited this court to consider the legislative history of the 2007 Act, although he accepted that the conditions necessary for admission of ministerial statements, prescribed by the House of Lords in Pepper v Hart [1993] AC 593 were not fulfilled.
+It was permissible, indeed necessary, Mr Lewis argued, to look at ministerial statements in order to ascertain the legislative intent of the 2007 Act.
+He then took us to a number of statements made by the Parliamentary Under Secretary of State for Northern Ireland, Paul Goggins MP, during the passage through the House of Commons of the Bill that ultimately became the 2007 Act.
+The purpose of this exercise was to promote the theory that the powers of the Director of Public Prosecutions under section 1 were confined to cases involving sectarianism in the connotation which Mr Lewis sought to place on it.
+I find it unnecessary to set out the passages from Mr Goggins statements to which Mr Lewis referred us.
+It is quite clear that the minister was responding to particular issues on which other members of the House had expressed concern.
+He did not attempt to outline a comprehensive charter of all the circumstances in which the Directors powers might be invoked.
+True it may be that the examples cited by Mr Goggins were of situations that might be described as sectarian in the connotation which Mr Lewis suggested was the correct one, but the minister did not at any point suggest that they were exhaustive of the circumstances in which the Director might exercise his powers under section 1.
+In any event, for the reasons given earlier, the legislative intent of the provisions of that section is abundantly clear from its terms.
+It is not open to the appellant to put a gloss on that intent by reference to Parliamentary statements which might appear to be at odds with that clear intent.
+As to the second requirement of section 1, the Director of Public Prosecutions, Barra McGrory QC, deposed in his first affidavit that, in reaching his decision on that issue, he had taken into account judicial observations in In re Jordans Application and in In re McParlands Application.
+On the basis of his consideration of those cases, he pronounced himself satisfied that there was a risk such as is provided for in section 1(2)(b).
+The decision in the Court of Appeal in the Jordan case referred to by Mr McGrory is reported at [2014] NICA 76; [2016] NI 116 as In re Jordans Applications for Judicial Review.
+Mr McGrory also mentioned the decision of the High Court in that case but it is sufficient, I believe, for present purposes to focus on the judgment of the Court of Appeal delivered by Sir Declan Morgan LCJ.
+The case concerned (among other things) the risk of jury bias in an inquest into the shooting of Pearse Jordan by a member of the RUC in 1992.
+At para 90 of the judgment the following passage appears: There are formidable difficulties in being satisfied that the insidious nature of bias has been removed in security and terrorist type cases.
+It is necessary to confront directly the need to ensure that jury verdicts emerge unconstrained by tribal loyalties.
+A coroner must be satisfied that there will be a sensitively constructed distance between prejudice and justice.
+The existence of a real risk of a biased juror or jury will outweigh any other factor.
+Mere reduction of the risk is insufficient.
+The coroner must be satisfied that the steps taken have reduced that risk to a remote or fanciful possibility.
+Other factors which, the court considered, should be taken into account by a coroner in seeking to eliminate the risk of bias on the part of the inquest jury were mentioned in the Court of Appeal judgment but they are not directly relevant to the present case.
+The important point to be drawn from that decision, in relation to the present case, is that three Court of Appeal judges, all highly experienced in the administration of justice in Northern Ireland, stated unequivocally and unanimously that formidable difficulties attended the need to be satisfied that the risk of bias has been removed in security and terrorist type cases; that the reality that tribal loyalties could imperil the chances of a proper verdict had to be confronted; that the risk of a biased juror was the most important factor to be considered by the coroner; and that the real (as opposed to the remote or fanciful) possibility of jury bias should govern the coroners decision on the question.
+Mr Lewis suggested that an inquest and a criminal trial were not analogous in relation to the need to avoid jury bias.
+In the former, he suggested, a unanimous verdict was required, whereas a majority verdict could be returned in a criminal trial.
+Moreover, the system of empanelling juries introduced by the 2007 Act which abolished the right to peremptory challenge to possible jurors and disclosure of their names and addresses reduced the risk of jury tampering and partisanship.
+I do not accept these arguments.
+The fact that a majority verdict can be delivered in a criminal trial might reduce the risk of partisan verdicts; there is no reason to suppose that it will eliminate it.
+Likewise, the abolition of peremptory challenges and disclosure of jury panel members names and addresses.
+On the question of jury tampering (to which, more obviously, these measures were primarily directed) it is right to record that Mr Gerald Simpson QC, who appeared for the Director, confirmed that the possibility of jury tampering was not a concern in this case.
+It was the prospect of a partisan outcome to the case which underlay the Directors decision.
+The McParland case to which the Director referred is In re an application by Patrick McParland and John McParland for Judicial Review [2008] NIQB 1.
+It concerned a challenge to section 10 of the 2007 Act which had inserted a new provision (article 26A) into the Juries (Northern Ireland) Order 1996 (SI 1996/1141) restricting the disclosure of information about jurors.
+It was argued that the new arrangements in effect brought about trial of defendants by a secret tribunal and that this constituted a breach of article 6 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) since it infringed the guarantees of a public hearing and of trial within a system containing sufficient guarantees of impartiality.
+The Divisional Court rejected that argument.
+At para 37, it observed, [t]he existence of the risks identified by the juries sub group of juror intimidation, of partisan juries and of perverse jury verdicts has not been seriously disputed by most commentators .
+Discussion of the statutory provisions relating to the issue of certificates
+The powers available to the Director of Public Prosecutions are unquestionably far reaching.
+It is unsurprising that this should be so.
+When one has regard to the difficulties described by the Court of Appeal in Jordan in eliminating the risk of bias and of being confident of having done so, the need for wide ranging powers is obvious.
+What were described by that court as tribal loyalties present a particular problem.
+These are often difficult to detect and may routinely be disavowed by most of the population.
+But experience has shown that they can operate to bring about unexpected, partisan outcomes.
+The dangers that they present to the achievement of a scrupulously fair trial are undeniable.
+Taking effective precautions against jury bias presents, as the Court of Appeal in Jordan said, formidable difficulties.
+These difficulties are particularly acute in cases which involve attacks on the security forces or where members of the security forces have fired on individuals.
+Such cases are almost invariably highly charged, and they give rise to strong feelings in both sides of the community.
+Apprehension that jury trial in such cases might put the goal of a fair trial in peril is unavoidable.
+It is important to focus on the need for a fair trial.
+Trial by jury is, of course, the traditional mode of trial for serious criminal offences in the United Kingdom.
+It should not be assumed, however, that this is the unique means of achieving fairness in the criminal process.
+Indeed, as the Court of Appeals statements in Jordan show, 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.
+So called Diplock trials took place in Northern Ireland between 1973 and 2007.
+No one suggests that this mode of trial failed to deliver fairness of process, by reason of the fact that the trial took place before a judge sitting without a jury.
+Although article 6 of ECHR (which guarantees a right to a fair trial) is not prayed in aid by the appellant in this case, it is interesting to reflect that it has been held that this article does not require trial by jury.
+As the European Commission of Human Rights observed in X and Y v Ireland (Application No 8299/78) (1980) 22 DR 51, para 19, article 6 does not specify trial by jury as one of the elements of a fair hearing in the determination of a criminal charge.
+It is, of course, to be remembered that the system of trial introduced as a result of Lord Diplocks report (Report of the Commission to consider legal procedures to deal with terrorist activities in Northern Ireland (1972) (Cmnd 5185)), required the trial judge to give a reasoned judgment if the defendant was convicted.
+And that a defendant, upon conviction, was entitled to an automatic right of appeal, not only on points of law but on the factual conclusions reached and inferences drawn by the trial judge.
+These remain features of trials without a jury since the 2007 Act section 5(6) and (7).
+The statement made by Lord Judge CJ in R v Twomey [2010] 1 WLR 630 at para 10 (relied on by the appellant) that, [i]n this country trial by jury is a hallowed principle of the administration of criminal justice . properly identified as a right, available to be exercised by a defendant unless and until the right is amended or circumscribed by express legislation must be viewed against this background.
+In the first place, although the Lord Chief Justice described entitlement to trial by jury as a right, he did not suggest that this was an absolute right; indeed, he accepted that it could be constrained in certain circumstances.
+Secondly, and self evidently, the right has in fact been restricted by the express provisions of the 2007 Act.
+Finally, where trial by jury would place the fairness of the criminal justice process at risk, the right must yield to the imperative of ensuring that the trial is fair.
+In this context, the triangulation of interests identified by Lord Steyn in Attorney Generals Reference (No 3 of 1999) [2001] 2 AC 91, at p 118 is pertinent.
+He said this about the various interests which are served by a criminal trial: The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property.
+And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted.
+There must be fairness to all sides.
+In a criminal case this requires the court to consider a triangulation of interests.
+It involves taking into account the position of the accused, the victim and his or her family, and the public.
+The requirements of a fair trial are not determined by having regard to a defendants interests exclusively.
+As Lord Steyn said, it is in the interests of everyone that serious crime be properly investigated and effectively prosecuted.
+Notably, of course, the appellant has not claimed that his trial for the offences with which he is charged will not be fair, if conducted by a judge sitting without a jury.
+Such a claim could not be sustained in light of the experience of trials before Diplock courts and of the safeguards which are in place by reason of section 5(6) and (7) of the 2007 Act.
+Consideration of the appellants claim that he should not be denied the right to a jury trial must therefore proceed on the basis that he will receive a fair trial or, at least, that if he does not, he will have an automatic right of appeal to the Court of Appeal where any suggestion that there has been unfairness can be fully ventilated and examined.
+This incontestable reality influences the approach to be taken, not only to the proper interpretation of section 1 of the 2007 Act, but also to the appellants argument that he was entitled to be given reasons for the issue of the certificate and to be consulted about the Directors proposed course of action before it was decided to issue the certificate.
+That is an argument to which I shall turn in paras 53 and following.
+The appellant argued that the Director of Public Prosecutions had been wrong in the claim that he made in his first affidavit, that it was the intention of Parliament that section 1(6) of the 2007 Act should be interpreted broadly.
+Mr Lewis pointed out that this was at odds with the judgment of the Divisional Court in an earlier Northern Ireland case, Arthurs (Brian and Paula) Application [2010] NIQB 75 where at para 31, Girvan LJ had said, [t]he strong presumption that a right to jury trial is not intended to be taken away will lead to a strict construction of any statutory restriction or limitation on the right to a jury trial.
+That statement appears to have been based on an argument addressed to the court by Raza Husain QC, appearing for applicants who challenged the issue by the Director of Public Prosecutions of a certificate that their trial on a series of fraud charges be conducted by a judge without a jury.
+Mr Husain had relied on the statement by Lord Judge CJ in a passage in the case of Twomey which appeared later in his judgment from that quoted at para 37 above.
+At para 16 of Twomey, Lord Judge CJ had said: The right to trial by jury is so deeply entrenched in our constitution that, unless express statutory language indicates otherwise, the highest possible forensic standard of proof is required to be established before the right is removed.
+That is the criminal standard.
+Of course, in Twomey the court was dealing with a case where the prosecution was seeking trial without a jury where it was claimed that there was a real danger of jury tampering and that is not the position here.
+But, if one proceeds on the premise that section 1(1) of the 2007 Act requires to be strictly or narrowly construed, this does not affect the interpretation which I consider the provision must be given.
+The Divisional Court in the present case dealt with this issue at para 41 of its judgment: In our view the assertion of the Director that it was the intention of Parliament to provide that the subsection should be broadly interpreted, whilst it could have been more felicitously worded, does not necessarily contradict the proposition put forward in Arthurs case that it is necessary to construe section 1 narrowly and strictly.
+The wording of condition 4 is such that Parliament clearly intended to include a broad reach of circumstances whilst at the same time recognising that any legislation removing jury trial needs to be tightly construed.
+There is certainly an argument that, contrary to the Divisional Courts view, the Directors assertion was at odds with what Girvan LJ said in Arthurs.
+But whether the Director erred is neither here nor there, provided he acted within the powers actually available to him and provided that, if he did indeed misapprehend the proper approach to the interpretation of section 1, that misapprehension was, in the event, immaterial to the decision that he took.
+On the true ambit of the Directors powers, what matters is the interpretation placed on the section by the courts.
+And the Divisional Court is unquestionably right that the wording of condition 4 invests the Director with a wide range of powers.
+Whether the section requires to be construed narrowly or broadly, the intrinsic breadth of the powers remains intact.
+Even if, therefore, the Director was wrong in his assertion that Parliament intended that the section should be interpreted broadly, there is no reason automatically to assume that this led to him exercising his powers in a manner that was not available to him on a proper construction of the provision.
+On the facts of this case, it is clear from the reasons that the Director has given for issuing the certificate that he was bound to have made the same decision if he had considered that section 1 required to be construed narrowly.
+If, indeed, it was an error on the part of the Director to consider that section 1 should be given a broad interpretation (on which I do not feel it necessary to express an opinion) it cannot be said that such an error would vitiate his decision for the reason that he was certain to reach the same decision, whatever view he took of the appropriate mode of interpretation of section 1.
+As to the reasons that he decided to issue the certificate, these were first conveyed to the appellants solicitors in a letter dated 10 May 2017 from the Directors office.
+It contained the following passages: I can advise you that the Director suspected that condition 4 in section 1 of the 2007 Act was satisfied on the basis of information provided by the police coupled with a commentary and assessment of that information, an analysis of the facts and circumstances of this case and the advice of senior counsel.
+In this way the Director formed the requisite suspicion.
+In view of the suspicion which he formed in relation to condition 4, the Director was satisfied that there was a risk that the administration of justice might be impaired if the trial were to be conducted with a jury.
+This risk arises from the possibility of a biased juror or jury, having regard to the particular circumstances of this case.
+The Director further considered whether the risk to the administration of justice could be mitigated by application to the court to screen the jury, sequester the jury or transfer the trial to a different venue.
+The Director was satisfied that there remained a risk that the administration of justice might be impaired on the basis that, even if granted, these measures might not be sufficiently effective in preventing or significantly reducing the potential risk posed to the administration of justice in this case.
+One may observe that it is extremely unfortunate that more than a year was allowed to pass before the issue of the certificate was brought to the attention of the appellant and his advisers.
+Quite apart from the obvious desirability of informing any defendant promptly of such a significant decision as to the mode of his trial, the challenge to his decision would, presumably, have materialised much sooner and the delay in the trial would have been greatly reduced.
+Mr Lewis suggested that the reference in the final paragraph of this letter to sequestration of the jury suggested that the possibility of jury tampering was present to the Directors mind but was not fully articulated.
+He argued that this, among other reasons, illustrated the inadequacy of the explanation given as to the basis on which the decision to issue the certificate was taken.
+This argument is more germane to the claim that the appellant should have been provided with reasons and been consulted before the decision was made to issue the certificate, an argument which I shall consider in the next section of the judgment.
+I should say, however, that I do not accept the argument.
+The nature of the risk is plainly stated in the second paragraph quoted above.
+It is that the possibility of a biased juror or jury existed.
+It might seem unusual to consider the question whether such a risk could be mitigated by sequestering the jury, but it is to be expected that the Director felt it prudent to examine every possibility before deciding to issue the certificate.
+It is certainly not untoward that he should advert to this before deciding that the only way in which to avert the risk that the administration of justice would be impaired was by issuing the certificate.
+On the question whether the Director acted within his powers, the letter sets out a clear basis on which to conclude that he did.
+He formed the necessary suspicion on the basis of information received from the police and commentary on that information.
+He also took the advice of senior counsel.
+These are all entirely conventional steps to allow him to consider the question whether he suspected that condition 4 was met.
+Likewise, the risk that the administration of justice would be impaired was directly addressed by the Director and a clear conclusion was arrived at.
+For the reasons given earlier, that conclusion was entirely unsurprising, in light of the circumstances described in the Jordan and McParland cases.
+Indeed, it is difficult to envisage how any other view could have been formed.
+The reasons for reaching his decision were again set out in two affidavits filed by the Director in the proceedings.
+In the first of these, he said that, in arriving at his conclusion, he recognised that there could be no suggestion that a soldier was any part of the sectarian divide in Northern Ireland, nor that he was involved in any proscribed organisation.
+He pointed out that the legislative framework makes it clear that references to persons and groups of persons need not include the defendant.
+He stated that he suspected that the offence was committed as a result of or in connection with or in response to the political hostility of one person or group of persons towards another person or group of persons; namely in connection with or in response to the political hostility of members (or suspected members) of PIRA towards those who believed that Northern Ireland should remain a part of the United Kingdom.
+In other words, the Director followed faithfully the wording and essence of the legislative provisions.
+This is completely in keeping with the terms of section 1 of the Act.
+On the second limb of section 1(2), the Director deposed that he had taken into account what had been said in the cases of Jordan and McParland and, having considered all the material with which he had been provided and having carefully analysed the facts, and having obtained senior counsels opinion, he was satisfied that there was a risk that the administration of justice might be impaired if the trial were to be conducted with a jury.
+All of this is unexceptionable and in compliance with the legislation.
+There is no reason to suppose that the Directors approach to the question whether the certificate should be issued was other than as prescribed by the statute. (The second affidavit filed by the Director relates to evidence which, he understood, was to be adduced by the prosecution on the trial of the appellant.
+It is not germane to the issues which arise on the appeal.) I have concluded, therefore that the Director acted within the powers conferred on him by the 2007 Act and that the appellants contention to the contrary must fail.
+The procedural argument
+The principal argument made on behalf of the appellant was that he ought to have been provided with the reasons that the Director of Public Prosecutions was minded to issue a certificate and with the material on which his consideration of that question was based.
+Further, it was claimed that the appellant should have been given the opportunity to make representations on whether a certificate should be issued, in advance of any decision on the matter.
+Section 7 of the 2007 Act sets the scene for any discussion of this argument.
+The exceptionality of a permissible challenge to the decision of the Director is prominent in the terms of the section.
+A curtailment of the full spectrum of judicial review challenge was obviously intended.
+It was expressly provided that a challenge was only admissible on grounds of bad faith, dishonesty or other exceptional circumstances.
+Bad faith and dishonesty clearly do not arise here.
+Where, then, does the appellants challenge find its place in the exceptional circumstances category?
+Mr Lewis seeks to place it there by reference to what he claims is the fundamental right to a jury trial.
+But, for the reasons earlier discussed, this will not do.
+The fundamental right is to a fair trial.
+There is a right to trial by jury, as Lord Judge CJ said in Twomey, but that alone is not enough to shift the appellants case into a condition of exceptionality particularly in the context of a statute whose very purpose is to prescribe the circumstances in which someone can be denied the right to a jury trial.
+This is pre eminently a situation where something is required beyond a claim that there is a right to a jury trial, if the circumstances of the individual case are to be regarded as exceptional.
+This point is reinforced by the examples of exceptional circumstances given in section 7(1)(c) of lack of jurisdiction or error of law.
+There is no question of lack of jurisdiction here, much less an error of law by the Director in having recourse to the powers that were available to him under section 1.
+To come within the rubric exceptional circumstances, it behoves the appellant to be able to point to something which truly distinguishes his case from the general.
+I consider that he has failed to do that.
+Quite apart from the statutory imperative requiring that there be exceptional circumstances in the absence of bad faith or dishonesty, the decision whether to issue a certificate is obviously one which should not be subject to the full spectrum of conventional judicial review challenge.
+Unlike most decisions taken in the public law arena, it is not founded exclusively on the evaluation and weighing of hard evidence.
+It will usually be motivated by sensitive information which cannot be disclosed.
+It is a decision which the Director of Public Prosecutions must take according to his personal reaction to the material with which he has been presented and his own estimation of the matters at stake.
+In sum, a decision to issue a certificate does not readily admit of scrutiny of the reasoning underlying it because it will usually be of the impressionistic and instinctual variety, for the reasons earlier explained.
+Many of these factors were in play in the Arthurs and Shuker cases.
+Arthurs was a case in which a challenge similar to that involved in the present appeal had been made.
+Girvan LJ, delivering the judgment of the Divisional Court, drew an analogy between this species of decisions and decisions whether to prosecute.
+At para 25 he brought together various authorities touching on this subject: In its reasoning [in Shuker] the court was heavily influenced by well established limitations on the review of the prosecutorial decisions by the DPP emerging from the authorities such as In re Adams [2001] NI 1, R v Director of Public Prosecutions, Ex p Treadaway The Times 31 October 1997 and R v Director of Public Prosecutions, Ex p Manning [2001] QB 330.
+The approach to the judicial review of prosecutorial decisions was subsequently succinctly stated by Lord Bingham and Lord Walker in Sharma v Brown Antoine [2007] 1 WLR 780, 788: It is . well established that judicial review of a prosecutorial decision, although available in principle, is a highly exceptional remedy.
+The language of the cases shows a uniform approach: rare in the extreme (R v Inland Revenue Comrs, Ex p Mead [1993] 1 All ER 772, 782); sparingly exercised (R v Director of Public Prosecutions, Ex p C [1995] 1 Cr App R 136, 140); very hesitant (Kostuch v Attorney General of Alberta (1995) 128 DLR (4th) 440, 449); very rare indeed (R (Pepushi) v Crown Prosecution Service [2004] Imm App R 549, para 49); very rarely: R (Bermingham v Director of the Serious Fraud Office [2007] 2 WLR 635, para 63.) In R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, 371 Lord Steyn said: My Lords, I would rule that absent dishonesty or mala fides or exceptional circumstances, the decision of the Director to consent to the prosecution of the applicants is not amenable to judicial review.
+It is apparent that the statutory language in section 7 is inspired by the principle of exceptionality applicable in the context of prosecutorial decisions.
+Section 7 gives statutory recognition to the common law reticence in the scrutiny of decisions made in the field of prosecutorial decision making.
+The wording lends support to the contention put forward by Mr Maguire and Mr Perry [counsel for the Director of Public Prosecutions] that a decision made by the Director under section 1 of the 2007 Act is intended to fall within the band of prosecutorial decision making.
+The appellant contends that there is a fundamental difference between a decision whether to prosecute and a decision whether to issue a certificate under section 1 of the 2007 Act.
+It is submitted that there is no right not to be prosecuted unlike the right to be tried by a jury; that a person facing a decision as to whether he will be charged has not had legal machinery or process instigated against him whereas the decision to remove the right to trial by jury occurs when a person has already been charged and is under the jurisdiction of the court; that an individual under charge has a fundamental right to trial by jury, which the opposing party, the Director of Public Prosecutions, unilaterally changes without recourse to the court; that before a decision to prosecute is made the prosecutor will have given the putative defendant the opportunity on arrest (by way of caution), or at interview (by way of caution and questioning), of making representations as to why he should not be charged; that the decision whether to issue a certificate is statutory whereas a decision to prosecute is non statutory; that the difficult area of public interest is evaluated by the prosecutor when deciding to charge but there is no public interest component to the issue of a certificate under the 2007 Act; and that a decision to prosecute is a procedural step which is not adjudicatory of rights, while the decision to remove the right to a jury trial is adjudicatory.
+While some, at least, of these matters point up the differences between the mechanics of a decision whether to prosecute and a determination that the trial should take place before a judge sitting without a jury, they do not signify when one concentrates on the nature of the decision making process.
+A prosecutor faced with the task of deciding whether to initiate a prosecution must evaluate material not disclosable to the person who might be charged; similarly, the Director, in deciding whether to issue a certificate, will have recourse to materials which are not revealed to the person who will be affected by it.
+A decision whether to prosecute is dependent on an individuals reaction to and judgment on the material available as to the possible outcome of proceeding; likewise, the Directors decision on the possible consequences of proceeding with a trial with a jury.
+Both decisions may involve consideration of material which is not only non disclosable but which may be of a highly sensitive nature.
+As Girvan LJ said in para 24 of Arthurs, the parallels between the two species of decision are obvious.
+Moreover, it can be no coincidence that the 2007 Act, in imposing restrictions on the availability of judicial review adopted the language of Lord Steyn in R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, a decision relating to the permissibility of challenge to a decision to prosecute.
+In any event, I should say that at least three of the appellants vaunted points of distinction are not, in my view, valid.
+First, the question of whether the decision is made on foot of a statutory provision or on a non statutory basis is irrelevant.
+Secondly, it is plainly wrong to suggest that there is no public interest in the determination of whether the trial should proceed before a judge without a jury.
+To the contrary, it is a critical part of the decision about the issue of a certificate that the Director consider whether the administration of justice would be impaired.
+This may have a different focus from the public interest at stake in deciding whether to prosecute but both decisions plainly call on the prosecutors judgment as to where the public interest lies.
+Finally, the decision whether to issue a certificate is no more adjudicatory in nature than is the decision to prosecute.
+Neither involves a weighing of competing interests in the sense that an individuals wish not to be prosecuted or his wish to be tried by a judge and jury are pitted against the public interest in ensuring that the administration of justice is maintained.
+In this case, I can conceive of no circumstances which could be said to be exceptional coming within the use of that term in section 7(1)(c) of the 2007 Act.
+This is especially so since it is open to the appellant even now to make representations to the Director of Public Prosecutions.
+Mr Simpson, on behalf of the Director, confirmed to this court that if representations were received, these would be considered.
+Of course, the appellant complains that effective representations cannot be made in the absence of information about the material on which the Director made his decision and the reasons that he decided as he did.
+Quite apart from the statutory prohibition on a challenge to the failure to disclose explanations other than on the limited grounds contained in section 7(1)(c), there are two sound reasons that the appellant should not succeed in this argument.
+First, in many cases involving the issue of a certificate, information will have been received by the Director from the police or other members of the security services which must, for obvious reasons, remain confidential.
+Secondly, the nature of the decision that the Director takes, as I have already explained, will usually be of an instinctual or impressionistic character, not susceptible of ready articulation.
+But the truly important point to make here is that section 1 qualifies, if not indeed removes, the right to trial by a jury.
+Hence, the issue of a certificate does not itself remove the right (it is the statute which has done that).
+In reality the issue of a certificate under section 1 partakes of a case management decision aimed at ensuring the relevant end result of a fair trial.
+Viewed from this perspective, it is of obvious importance that elaborate, protracted challenges to the issue of a certificate under section 1 are wholly to be avoided, where possible.
+It is, no doubt, with this consideration in mind that section 7 circumscribed the opportunity for judicial review challenge.
+Such challenges have the potential to undermine the objective of the legislation to ensure that trials take place in accordance with the requirements of article 6 of ECHR (both as to fairness and to promptness).
+That is not to say that there will never be occasion where some information can be provided which would assist in the making of representations by a person affected by the issue of a certificate.
+I refrain from speculation as to how or when such an occasion might arise.
+I am entirely satisfied, however, that it does not arise in the present case.
+Conclusion
+The Divisional Court certified the following question for the opinion of this court: Does a true construction of section 4 of the 2007 Act [this should be condition 4 in section 1(1) of the Act], namely an offence or offences 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, include a member of the armed forces shooting a person he suspected of being a member of the IRA?
+The arguments on the appeal before this court have ranged well beyond the single issue raised in the certified question and, perhaps inevitably, this judgment has also dealt with matters outside its scope.
+But, for the reasons that I have given, I would answer the certified question, yes and dismiss the appeal.
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+This appeal raises a point of pure statutory construction relating to the manner in which election expenses are required to be calculated and declared.
+It is important to appreciate that the point is raised not, as it might in other circumstances have been, on an application for judicial review or a declaration as to the law, but as a preliminary question in a criminal prosecution.
+The defendants face charges of knowingly making false declarations in relation to election expenses, or aiding and abetting or encouraging or assisting such offences.
+The parties asked the judge to determine the point on a preparatory hearing pursuant to Part III of the Criminal Procedure and Investigations Act 1996 (the 1996 Act).
+The criminal trial, although technically begun by the preparatory hearing, has yet to take place, and no jury has yet been sworn.
+No one can yet know what the real issues will turn out to be at that trial.
+No one can yet know what the evidence will be, still less which facts will be disputed and which common ground.
+The present question of statutory construction may arise at the trial, or it may not.
+If it does arise, it is unknown at this stage what its impact may be on the trial.
+For this reason it is important that this judgment is directed to the pure question of law, and that as little as possible is said about what the allegations are or what the facts may turn out to be, lest there be risk that the jurys consideration of the case is affected.
+It is also for this reason that there are automatic statutory restrictions in the 1996 Act upon reporting of preparatory hearings and any appeals therefrom.
+This judgment is public and can be reported in the usual way.
+But reporting must not go beyond what is in this document together with the formal details permitted by statute: see the section on reporting restrictions in para 31 at the end of this judgment.
+The Certified Question
+The question of law certified by the Court of Appeal (Criminal Division) as a point of law of general public importance was as follows: Do property, goods, services or facilities transferred to or provided for the use or benefit of a candidate free of charge or at a discount (as identified in section 90C(1)(a) of the Representation of the People Act 1983 (as amended)) only fall to be declared as election expenses if they have been authorised by the candidate, his election agent or someone authorised by either or both of them?
+Whilst that question might also arise in other contexts connected with elections, in the present case it is raised by one of the realities of modern campaigning.
+Political parties are often national in organisation.
+At a general election, a national party may typically field candidates standing as adherents to the party in all or many of the constituencies in the country.
+At such an election, the legislation imposes separate limits on the expenditure which is permitted to the candidate locally and to the party nationally.
+Both the constituency candidate and the national party are required to submit returns setting out their expenditure, and demonstrating that it falls within the limits applied to them.
+But national party activity will typically amount to some support for the constituency candidates standing in its interests.
+Especially if the constituency is regarded by a party as marginal, the activities of the national party in the constituency may well be extensive.
+So also they may if the constituency candidate is a leading member of the national party, or for that matter if one of the competing candidates is a prominent member of another party.
+The question will arise when expenditure undertaken by the national party falls to be accounted for as candidate expenditure, and to be limited by the ceiling applied to constituency candidates, and when it should be returned by the national party and governed by the different limit applied to national parties.
+An illustration of the question is given by what was described by the judge as the battlebus issue.
+If the national party sends a liveried coach containing activists into key constituencies and they there campaign for the party and/or its candidates, do the expenses fall to be accounted for nationally or locally? That is by no means the only possible example of the problem, nor is it the only one which may be in issue in the proposed trial in the present case.
+Anyone familiar with modern election campaigns will appreciate that there may be many other situations where work undertaken by national parties potentially overlaps with, or arguably amounts to, the support of one or more local candidates.
+The certified question which this court is called upon to answer is likewise only one of a number of technical questions of electoral law which may bear upon this potential overlap.
+This judgment is, however, confined to that certified question.
+The legislation
+Since the 19th century, legislation has imposed limits upon a candidates election expenses.
+The current statute is the Representation of the People Act 1983 (RPA 1983).
+Some of the rules and concepts in that Act effectively date from Victorian times; others have been added by successive modern adjustments, and amendments have continued since 1983.
+Until 2000 there were no rules about national expenditure by political parties.
+They were introduced by the Political Parties, Elections and Referendums Act 2000 (PPERA 2000).
+That Act also made some amendments to RPA 1983.
+The two statutes adopt similar general schemes to control expenses.
+The principal (but not the only) controls are these. (i) They list, in Schedules to the Acts, the kinds of expenditure which count as declarable expenses (and some kinds which do not). (ii) They prescribe who may incur those expenses, and thus fix responsibility on identifiable persons.
+In the case of constituency expenses, those persons are the candidate, his agent, and others if authorised by either of them.
+In the case of party expenses, those persons are the party treasurer and deputy treasurer, or others if authorised by either.
+Similarly, the statutes prohibit payment of expenses by persons other than those specified. (iii) They impose financial limits on the expenses which may be incurred and paid. (iv) They require a specified person to make a return of the expenses incurred.
+In the case of the constituency, that person is the appointed election agent of the candidate.
+In the case of party expenditure, it is the party treasurer.
+Moreover, the returns must be accompanied by formal declarations of accuracy.
+Those must be made by the person making the return and, in the case of the constituency, also by the candidate. (v) Each of the statutes contains a provision including in the expenses which must be declared, and which must fall within the relevant limit, the cost of things which are supplied either free of charge or at a discount to the candidate or party as the case may be, where that cost would, if paid for by the candidate or party, be election expenses.
+These are sometimes referred to, although not in all the statutes, as notional expenditure.
+As will be seen, the certified question in this case asks about the relationship between the second and fifth of these controls.
+It is a feature of the legislation that the two categories of expenses, local and national, whether or not they may in practice overlap, are treated as mutually exclusive.
+When PPERA 2000 introduced controls over party expenditure it labelled it in section 72 campaign expenditure, and defined it as: (2) Campaign expenditure, in relation to a registered party, means (subject to subsection (7)) expenses incurred by or on behalf of the party which are expenses falling within Part I of Schedule 8 and so incurred for election purposes.
+The meaning of election purposes in this subsection is wide: it is defined thus in subsection (4): For election purposes, in relation to a registered party, means for the purpose of or in connection with (a) promoting or procuring electoral success for the party at any relevant election, that is to say, the return at any such election of candidates (i) standing in the name of the party, or (ii) included in a list of candidates submitted by the party in connection with the election; or (b) otherwise enhancing the standing of the party, or (i) (ii) of any such candidates, with the electorate in connection with future relevant elections (whether imminent or otherwise).
+It follows that if the definition stopped there, all party activity which has the purpose of enhancing the standing of any of its candidates would count as campaign expenditure.
+The mutual exclusion of party expenses and local candidate expenses is, however, achieved by subsection (7), to which the foregoing definition is expressly made subject.
+That provides (as amended by section 20 of, and paragraph 5(2)(a) of Schedule 6 to, the Recall of MPs Act 2015): Campaign expenditure does not include anything which (in accordance with any enactment) falls to be included in (a) a return as to election expenses in respect of a candidate or candidates at a particular election, or (b) . [not here relevant].
+The principal debate in this appeal centres on two provisions of RPA 1983, sections 90ZA and 90C.
+As the numeration suggests, both are additions to the statute as originally enacted.
+Section 90C was added with effect from July 2001 by section 134(1) of PPERA 2000.
+Section 90ZA was inserted by section 27(2) the Electoral Administration Act 2006 and came into force in September 2006.
+Section 90ZA of RPA 1983 contains the current meaning of election expenses (ie, in relation to general elections, those incurred by constituency candidates).
+It provides: 90ZA Meaning of election expenses (1) In this Part of this Act election expenses in relation to a candidate at an election means (subject to subsection (2) below and section 90C below) any expenses incurred at any time in respect of any matter specified in Part 1 of Schedule 4A which is used for the purposes of the candidates election after the date when he becomes a candidate at the election. (2) No election expenses are to be regarded as incurred by virtue of subsection (1) above or section 90C below in respect of any matter specified in Part 2 of Schedule 4A. (3) In this section and in section 90C below, for the purposes of the candidates election means with a view to, or otherwise in connection with, promoting or procuring the candidate's election at the election. (4) For the purposes of this Part of this Act, election expenses are incurred by or on behalf of a candidate at an election if they are incurred (a) by the candidate or his election agent, or (b) by any person authorised by the candidate or his election agent to incur expenses. (5) [not here relevant] (6) In this Part and in Part 3 of this Act, any reference (in whatever terms) to promoting or procuring a candidates election at an election includes doing so by prejudicing the electoral prospects of another candidate at the election. (7) Schedule 4A has effect. [Note: this schedule specifies the kinds of expenditure which are categorised as election expenses.] [not here relevant]. (8)
+Section 90C of RPA 1983 contains provision for things supplied to a candidate either free of charge or at a discount.
+It provides (as amended by section 74(1) of, and paragraph 117 of Schedule 1 to, the Electoral Administration Act 2006): 90C Property, goods, services etc provided free of charge or at a discount (1) This section applies where, in the case of a candidate at an election (a) either (i) property or goods is or are transferred to the candidate or his election agent free of charge or at a discount of more than 10% of the market value of the property or goods, or (ii) property, goods, services or facilities is or are provided for the use or benefit of the candidate free of charge or at a discount of more than 10% of the commercial rate for the use of the property or for the provision of the goods, services or facilities, and (b) the property, goods, services or facilities is or are made use of by or on behalf of the candidate in circumstances such that, if any expenses were to be (or are) actually incurred by or on behalf of the candidate in respect of that use, they would be (or are) election expenses incurred by or on behalf of the candidate. (2) Where this section applies (a) an amount of election expenses determined in accordance with this section (the appropriate amount) shall be treated, for the purposes of this Part of this Act, as incurred by the candidate, and (b) declaration of that amount, unless that amount is not more than 50. the candidates election agent shall make a This subsection has effect subject to Part 2 of Schedule 4A to this Act. (3) Where subsection (1)(a)(i) above applies, appropriate amount is such proportion of either the the market value of the property or goods (where (a) the property or goods is or are transferred free of charge), or (b) the difference between the market value of the property or goods and the amount of expenses actually incurred by or on behalf of the candidate in respect of the property or goods (where the property or goods is or are transferred at a discount), as is reasonably attributable to the use made of the property or goods as mentioned in subsection (1)(b) above. (4) Where subsection (1)(a)(ii) above applies, the appropriate amount is such proportion of either the commercial rate for the use of the property or (a) the provision of the goods, services or facilities (where the property, goods, services or facilities is or are provided free of charge), or (b) the difference between that commercial rate and the amount of expenses actually incurred by or on behalf of the candidate in respect of the use of the property or the provision of the services or facilities (where the property, goods, services or facilities is or are provided at a discount), as is reasonably attributable to the use made of the property, goods, services or facilities as mentioned in subsection (1)(b) above. (5) Where the services of an employee are made available by his employer for the use or benefit of a candidate, then for the purposes of this section the commercial rate for the provision of those services shall be the amount of the remuneration and allowances payable to the employee by his employer in respect of the period for which his services are so made available (but shall not include any amount in respect of any contributions or other payments for which the employer is liable in respect of the employee). (6) In this section market value, in relation to any property or goods, means the price which might reasonably be expected to be paid for the property or goods on a sale in the open market; and paragraph 2(6)(a) of Schedule 2A to this Act shall apply with any necessary modifications for the purpose of determining, for the purposes of subsection (1) above, whether property or goods is or are transferred to a candidate or his election agent.
+There are further provisions in the statutes for other kinds of elections, including referendums, and also for expenditure at elections by those who are neither candidates nor political parties, such as pressure groups.
+The latter expenditure is called controlled expenditure.
+These provisions are, like those relating to constituency candidates and central parties, relatively complex.
+It is not necessary to refer to them in detail, but it is relevant to note that in several respects they adopt forms of control parallel to those outlined at para 6 above, including provisions for notional expenditure.
+Controlled expenditure, campaign expenditure and candidates election expenses are, once again, made mutually exclusive, each with the others, by section 87(1) of PPERA 2000.
+For each type of regulated expenditure, the statutes require a return.
+In the case of election expenses by a candidate, the duty to make the return falls on the candidates appointed election agent.
+Section 81(1) RPA 1983 (as amended by section 24 of, and paragraph 27 of Schedule 4 to, the Representation of the People Act 1985 and by section 138(1) of, and paragraph 7(2) of Schedule 18 to, PPERA 2000) provides: 81.
+Return as to election expenses (1) Within 35 days after the day on which the result of the election is declared, the election agent of every candidate at the election shall deliver to the appropriate officer a true return containing as respects that candidate a statement of all election expenses incurred by (a) or on behalf of the candidate; and a statement of all payments made by the election (b) agent together with all bills or receipts relating to the payments.
+The return must, by section 82(1) and (2), be accompanied by declarations by both the agent and the candidate that it is accurate.
+The potential consequences of failure to deliver an accurate return and declaration are serious.
+By section 82(6) knowingly to make a false declaration is the criminal offence of corrupt practice, whilst by section 84 simple failure to make a correct return or declaration is the offence of illegal practice.
+The former carries imprisonment and a fine, by section 168.
+The latter carries a fine, by section 169.
+Both have the further notable effect, by section 173, of disqualification from the House of Commons or other elective office, subject, in the case of specified excuses and proof of good faith, to the courts power to relieve of that consequence (section 86).
+The rival submissions
+The Crowns case is that campaigning activity undertaken in a constituency by the central national party may be free or discounted services within section 90C, and thus be accountable for by the candidate, whenever: they were made use of by or on behalf of the candidate (section it amounts to services provided for the use or benefit of the (i) candidate (section 90C(1)(a)(ii)); and (ii) 90C(1)(b)); and they were so made use of in circumstances such that if any expenses (iii) were to be actually incurred by or on behalf of the candidate in respect of that use, they would be election expenses incurred by or on behalf of the candidate (section 90C(1)(b)).
+If those three conditions are met, say the Crown, section 90C(2) applies, and the expenses are to be treated as incurred by the candidate and must be declared as such by his election agent.
+The defendants contend that such campaigning by the national party cannot amount to election expenses for which the candidate has to account unless he or his agent, or someone authorised by either of them, has authorised the expenditure.
+Authorisation is, say the defendants, a central feature, throughout the legislation, of responsibility for electioneering expenses.
+Section 90ZA(4) so provides for a candidates election expenses, and says plainly that such expenses are only incurred (and thus declarable) if they are incurred by the candidate, or his election agent, or someone else authorised by either of them.
+Say the defendants, provisions essentially mirroring section 90ZA(4) are to be found throughout the legislation and are applied to all the various forms of electioneering expenses, such as the partys campaign expenditure, the controlled expenditure of pressure groups, and referendum expenditure.
+Both parties also relied on consequentialist arguments supporting the construction for which they contended.
+The Crown suggested that unless its construction is adopted the evasion of controls on expenditure would be encouraged.
+It also submitted that its construction is consistent with a desire to maintain equivalence between the position of a candidate supported by a national party and an independent candidate who has no national organisation behind him.
+For their part, the defendants contended that unless authorisation is kept firmly at the centre of responsibility for declaring expenses, the task of an election agent would become impossible wherever the national party undertakes campaigning activity which in fact benefits the local candidate, but which he has not sought out, required or authorised; that would apply, say the defendants, in a great number of constituencies, if not in most.
+Analysis
+It is plainly correct, as Ms Montgomery QC contended for the defendants, that the concept of authorisation of expenses is frequently resorted to in the legislation.
+In applying the control which restricts those who may incur constituency election expenses, section 75 RPA 1983 does so by making it an offence to incur such expenses unless one is the candidate, his election agent, or a person authorised in writing by the election agent to do so.
+Similar provisions are to be found in the controls relating to party campaign expenses (section 75(1) PPERA 2000) and to controlled expenditure by recognised third parties (section 90 PPERA 2000).
+The same concept is employed in what the defendants contend is the crucial section relating to constituency election expenses, namely section 90ZA(4) RPA 1983.
+That, as has been seen, addresses the question of when election expenses are to be regarded for the purposes of the Act as incurred by or on behalf of a candidate.
+This question has to be addressed because in several places the Act attaches consequences when expenses have been incurred by or on behalf of a candidate.
+The duty to make a return under section 81 arises when expenses are thus incurred, but not otherwise.
+The monetary limit on expenses imposed by section 76(1) of RPA 1983 is similarly imposed in relation to expenses incurred by or on behalf of the candidate.
+And section 73(1) of RPA 1983, which prohibits the payment of election expenses otherwise than via the election agent, speaks once again of prohibiting the payment of expenses which are incurred by or on behalf of the candidate.
+What section 90ZA(4) undoubtedly does is to say that actual (as distinct from notional) constituency election expenses are only incurred by or on behalf of the candidate if they are incurred either by the candidate himself, or by his election agent, or by someone authorised by either of them.
+It is no doubt correct that the effect of section 90ZA(4) is that authorisation (by candidate, election agent or person authorised by either) is ordinarily a necessary feature of constituency election expenses falling within that section and thus within the rules about monetary limit (section 76) and payment (section 73).
+It is also correct that there are broadly similar provisions in PPERA 2000 employing the concept of authorisation in the equivalent contexts of party campaign expenses and third party controlled expenses when it comes to monetary limits and the prohibition of payment by other people.
+The critical question, however, is whether this concept of authorisation also governs the notional expenditure provision in section 90C of RPA 1983, and for that matter its equivalents in PPERA 2000 for party campaign expenses and third party controlled expenses.
+The certified question (see para 2 above) asks in terms whether the conditions set out in section 90ZA(4) apply to notional expenditure within section 90C.
+The defendants contend that they do.
+The Court of Appeal was persuaded that they were right.
+In the end this depends on the words of the statute.
+Section 90C asks, by subsections (1)(a) and (b), three questions about the expenditure it is considering.
+If those questions are answered yes, then by subsection (2) it stipulates that the expenditure shall be treated as incurred by the candidate for the purposes of the Act.
+That is a deeming provision.
+If the conditions are satisfied, the notional expenditure becomes by statute the same as if it had been actually incurred by the candidate, even though it has not actually been incurred by him.
+The three questions can be simplified for present purposes by expressing them in terms of services, but of course the same applies to goods, property or facilities.
+The questions posed by subsections (1)(a) and (b) are: 1.
+Were the services provided for the use or benefit of the candidate either free of charge or at a discount of more than 10% of commercial value? (subsection (1)(a)) 2.
+Were they made use of by or on behalf of the candidate? (subsection (1)(b)) and 3.
+If the services had actually been paid for (expenses actually incurred) by or on behalf of the candidate, would those expenses be election expenses incurred by or on his behalf (and thus subject to the various controls imposed by the Act)? (also subsection (1)(b)).
+There is no room in this sequence of conditions or questions for an additional requirement that the provision of the services must have been authorised by the candidate or his election agent, or by someone authorised by either of them.
+The test is a different one from that in section 90ZA(4) for expenses actually incurred.
+The test is use, by or on behalf of the candidate (although see para 25 below).
+This analysis is confirmed by the express provision in section 90ZA(1) that the definition of election expenses there provided is subject to section 90C.
+What section 90ZA(4) does is to stipulate when election expenses, defined as subject to section 90C, are incurred by or on behalf of the candidate.
+But section 90C(2) includes also as expenses incurred by the candidate those which satisfy the conditions of section 90C(1)(a) and (b).
+In short, rather than section 90C incorporating the words of section 90ZA(4), it provides an additional category of expenditure which has to be included within subparagraph (a) of that latter subsection that is to say as expenses notionally incurred by the candidate.
+There is nothing in the Act (or for that matter in the equivalent provisions of PPERA 2000) which necessitates departure from this natural reading of section 90C.
+The third condition/question is an essential part of the operation of section 90C.
+Unless the services (etc) fall within one of the categories of election expenses caught by the Act, and particularly by Schedule 4A (as inserted by section 27(5) of the Electoral Administration Act 2006), and unless payment by the candidate himself, if made, would amount to election expenses, section 90C simply does not bite.
+It is not, however, necessary to adopt the defendants construction of the Act in order for the third condition/question to have content.
+It would appear to be true that one consequence of the addition of section 90C to the Act is to qualify the effect of a modest exemption for small expenditure, always in the Act and now contained in section 75(1ZA) (as inserted by section 131(3) of PPERA 2000) and (1ZZB) (as inserted by section 25(3) of the Electoral Administration Act 2006).
+Those provisions exempt from the rule that unauthorised persons may not incur expenses in support of a candidate small payments (now not exceeding 700) made independently of any similar ones.
+The effect of section 90C would appear to be that, although by section 75 the payer of such small sums is not guilty of the offence of making an impermissible payment, nevertheless services (etc) provided by someone who spends such a sum upon them may count as notional expenditure which must be declared and counted towards the statutory limit if (but only if) the services are made use of by the candidate or on his behalf.
+Those are, however, not necessarily inconsistent provisions.
+It is no doubt true that in practice it is difficult to envisage the transfer of property or goods, also covered by the notional expenditure provisions of section 90C, occurring without the concurrence of the candidate.
+That may be relevant to the proper construction of the expression made use of by or on behalf of the candidate, or for that matter to whether any declaration made is knowingly false, but it cannot be a reason to import into any part of section 90C the wording of section 90ZA(4).
+The Court of Appeal drew attention to the second condition/question set out in para 18 above, posed by section 90C(1)(b).
+It drew attention to the fact that the subsection is satisfied when the services (etc) are made use of by anyone, on behalf of the candidate, and that it is not limited to use by the candidate or his election agent.
+It is, however, important to observe that section 90C(1)(b) is not satisfied merely by the services (etc) being for the benefit of the candidate.
+There is a plainly deliberate difference of expression between subsections (1)(a)(ii) and (1)(b).
+The services (etc) have, by (1)(a)(ii) to be provided for the use or benefit of the candidate (emphasis added).
+But their cost only counts as notional expenditure if they are made use of by or on behalf of the candidate: subsection (1)(b).
+Mr Straker QC, for the Crown, was at pains to submit that making use of the services (etc) involves some positive activity by the candidate or someone on his behalf.
+Ordinarily, one would also expect that it would involve conscious activity.
+It is not enough that the services enure for the benefit of the candidate unless he or someone on his behalf makes positive use of them.
+Care will have to be taken upon the question of who may be found to be acting on behalf of the candidate in making positive use of such services, but the problem of who acts on behalf of a candidate, and when, is not an unfamiliar one in election law.
+It does not seem likely that use by a campaigner would be held to be by or on behalf of a candidate who had positively refused to accept the benefit of the services (etc).
+There may, on some facts, be a difference between the critical requirement for use by or on behalf of the candidate and the suggested one of authorisation, but in many cases those factual issues may well be closely related.
+The legislation contains provisions also for regulating donations.
+In RPA 1983 they are found in section 71A (as inserted by section 130(2) of PPERA 2000) and Schedule 2A (as inserted by section 130(3) of, and Schedule 16 to, PPERA 2000).
+In summary, donations must be made to the candidate or election agent, and must not be accepted unless made by a permissible donor, as defined in section 54 PPERA 2000.
+The provision of free or discounted services may also amount to a donation see paragraph 2(1)(e) of Schedule 2A.
+The maker of a donation may commit an offence if he makes it to someone other than the candidate or agent.
+The agent must include in the return required by section 81 the details of any donation accepted either by him or the candidate: Schedule 2A paragraphs 10 12.
+No doubt, ordinarily at least, acceptance of a donation will involve the awareness of the recipient, in the same way as a transfer of property or goods to either of them would.
+It may well follow that the agent or candidate could not be said to be a secondary party to a donors offence of impermissible donation unless they knew of it, and perhaps that a donation of which neither is aware has not been accepted for the purpose of inclusion in the return.
+That, as above, may help to throw light on the meaning of the expression in section 90C(1)(b) made use of by or on behalf of the candidate.
+But it affords no reason for importing the terms of section 90ZA(4) into section 90C.
+Rather, the donation provisions are broadly consistent with the construction of section 90C here set out.
+It is not necessary, in order to give effect to the plain reading of the Act here set out, to have resort to the Crowns consequentialist arguments, which do not in any event have great substance.
+There appears to be no particular reason why this reading of section 90C can alone deter deliberate evasion of the spending limits by the acceptance of services (etc) provided free or at a discount.
+Deliberate evasion would equally be deterred on the construction advanced by the defendants.
+It may well be that the problem of potentially overlapping campaigning by a national party and its local candidates does not apply to independent candidates who lack a national party behind them.
+But that independents do not have a national party behind them is a simple fact of electoral life, and applies whatever is the correct construction of section 90C.
+Moreover, independent candidates may in any event be offered services (etc) from supporters other than a national party, and section 90C, whatever its correct construction, needs to and does apply to them also.
+The plain reading of the Act here set out cannot be displaced by possibly inconvenient or even newly recognised consequences.
+It may or may not be true that the notional expenditure provisions, including section 90C, were directed principally at evasion of expenses controls by candidates (or parties) who might arrange for unregulated persons to provide goods, property, services or facilities for them either free or at a discount.
+It may or may not be true that the application of these provisions to the undoubtedly imprecise question of when expenditure is party expenditure and when it is candidate expenditure was not anticipated.
+It seems, from the material provided to this court, that the Electoral Commissions helpful guidance documents issued over several years, whilst they certainly both address the question of apportionment of expenditure between party and candidate, and deal with the concept of free or discounted services, nowhere appear to alert readers to the possible link between them, nor to the application of the notional expenditure rules to what must sometimes be a difficult exercise of separating local from national expenditure.
+The potential difficulties for election agents, and for that matter for candidates, in knowing what must and must not be included in their returns, are indeed likely to be increased by the complications of national and local expenditure which in practice may overlap but by statute have to be mutually exclusive.
+The fact that they are mutually exclusive does not, as the defendants at one point submitted, mean that all expenditure defaults to constituency expenses.
+Indeed, it is because the two have to be separated, and if necessary maybe apportioned, that the task of the election agent is made more difficult.
+The point that the candidate and election agent risk the commission of criminal offences is well made.
+Criminal liability is no small matter even if regulatory statutes sometimes invoke it as if it were less significant than it is.
+But the more serious offence of knowingly making a false declaration is committed only when there is a dishonest state of mind, and the defendant knows that the declaration ought to include something which it does not: see the judgment of Lord Bingham of Cornhill CJ in R v Jones and Whicher [1999] 2 Cr App R 253, especially at 259B, which decision Mr Gordon QC, on behalf of the Electoral Commission intervening in the present case, took care to underline, and which the Crown has not suggested calls for any qualification.
+The strict liability offence is of course different, but the Act stipulates in section 86 for a specific power to relieve from sanctions where the offence has been committed despite good faith.
+The potential difficulties faced by agents are in any event more the consequence of the difficulty of separating national from local expenditure than of the terms of section 90C.
+Conclusion
+For the reasons set out above, this appeal must be allowed and the question which was certified by the Court of Appeal (para 2 above) must receive the answer no.
+The test for the operation of section 90C is the threefold one set out above (see para 18).
+Reporting restrictions
+the offences charged, as summarised in this judgment; the names of counsel and solicitors engaged in the appeal; the identity of the court(s) and the name of the judge(s); the names, ages, home addresses and occupations of the accused and (a) (b) witnesses; (c) (d) (e) whether for the purposes of the appeal representation was provided to either of the accused under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012; and (f) this judgment.
+Section 37 of the Criminal Procedure and Investigations Act 1996 imposes statutory reporting restrictions in relation to the hearing of interlocutory appeals such as the present.
+The objective is to ensure that the jurys consideration of the evidence and issues put before it is not at risk of being affected by prior reporting, for example of the details of the allegations or of discussion of possible issues.
+Those restrictions apply to the hearing of this appeal.
+The court is satisfied that there is no reason to modify them in the present case, except to permit the reporting of this judgment.
+Until the conclusion of the trial, nothing may be reported except the following:
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+This appeal concerns the Scots law of gratuitous alienations on insolvency.
+It raises three principal questions.
+First, there is a question as to the interpretation of the term adequate consideration in section 242(4)(b) of the Insolvency Act 1986 (the 1986 Act).
+Secondly, there is the question whether the Inner House was entitled to interfere with the Lord Ordinarys evaluation that the consideration given by Carnbroe Estates Ltd (Carnbroe) amounted to adequate consideration under that statutory provision.
+Thirdly, a question arose during the hearing as to the interpretation of the words in section 242(4) that empower the court to grant a remedy.
+The court invited and received written submissions from counsel for both parties.
+The question is whether the court has any discretion as to the remedy it may give.
+Factual background
+Grampian MacLennans Distribution Services Ltd (Grampian) was, as its name suggests, a distribution services company.
+It carried on business from a site at 9 Stroud Road, Kelvin Industrial Estate, East Kilbride (the Property).
+The Property, which was Grampians principal asset and centre of operations, consisted of a warehouse, a vehicle workshop and a yard with a gatehouse.
+Grampian purchased the Property in August 2005 for 630,000.
+The buildings on the Property had been constructed in the 1970s and by 2014 were in need of further maintenance, repair and upgrading.
+Grampians shareholders until June 2014 were Derek and Hazel Hunter, and Derek Hunter (Mr Hunter) was the sole director.
+In March 2013 DM Hall, chartered surveyors, (DM Hall) valued the Property at 1.2m on the open market with the valuation falling to 800,000 if one were to assume a restricted marketing period of 180 days.
+By early 2014 Grampian was in financial difficulty.
+In May 2014 Mr Hunter consulted an insolvency practitioner to obtain advice as to whether he should put Grampian in members voluntary liquidation.
+At that time Mr Hunter believed that the sale of the Property would enable Grampian to pay all its creditors and make a distribution to the shareholders.
+His belief was supported by the DM Hall valuation of March 2013.
+Shortly before the consultation in May 2014, Carnbroe had intimated through its solicitors an interest in purchasing the property for 950,000.
+In mid-2014, another company, Bullet Express Ltd, also expressed an interest in acquiring the Property at a price of 900,000.
+Mr and Mrs Hunter chose not to pursue those expressions of interest in the Property but instead sold their shares in Grampian to Mr Kevan Quinn (Mr Quinn), who became its sole shareholder and director with effect from about 16 June 2014.
+At this time, Grampians total liabilities marginally exceeded 1m.
+Sums in excess of 500,000 were due to HM Revenue and Customs (HMRC) and sums over 500,000 were due to National Westminster Bank plc (NatWest), which together were Grampians principal creditors.
+NatWest held a standard security over the Property in respect of a LIBOR loan, which I mention below.
+It also held a bond and floating charge over Grampians property and undertaking.
+Grampian had to pay monthly loan payments to NatWest of about 4,600.
+In his witness statement, which was accepted as his evidence in chief and truthful and on which he was not cross-examined, Mr Quinn explained that he had taken over Grampian in the hope that he could save it and make money out of it.
+He narrated that shortly after his takeover, Grampians invoice factor withdrew its factoring facility which caused the companys cash flow to collapse.
+He was not able to obtain alternative funding.
+He explained that once he realised how bad Grampians position was, he tried to deal with it in as responsible a way as he could.
+He sold off the companys trucks, which were on hire purchase, to reduce outgoings, and then sought to sell Grampians only other asset, the Property.
+With the collapse in its cash flow, Grampian could not pay the loan payments to NatWest, which fell into arrears.
+He sought to sell the Property to prevent it from being re-possessed by NatWest.
+Mr Quinn entered into discussions to sell the Property with James Gaffney (Mr Gaffney) who was a successful businessman whom he had known for over 30 years and with whom he had had business dealings throughout that time.
+Mr Gaffney tried to chisel the price by pointing out that the electrical system of the building needed immediate attention, and that there was an issue about the presence of asbestos which would have to be addressed at some time.
+Mr Gaffney was aware of Grampians predicament and mentioned that he could buy the Property after it had been repossessed.
+Mr Gaffney also gave evidence in a written witness statement which was accepted as truthful.
+He stated that Carnbroe was one of his family companies and that he negotiated with Mr Quinn on its behalf.
+Mr Quinn had explained to him Grampians financial difficulties on a number of occasions.
+Mr Quinn was looking for a quick sale because of mortgage arrears and the risk that the Property would be repossessed.
+The price of 550,000 reflected the quick sale.
+The buildings needed repairs and refurbishment, including re-wiring and asbestos removal.
+That is all the direct factual evidence that was led about the circumstances which led up to the sale of the Property to Carnbroe.
+The parties sought to adopt an economical and proportionate approach to the proof, which is to be commended.
+In a Joint Minute of Admissions the parties agreed as true the contents of the affidavits of the liquidators and two other witnesses to fact on their behalf.
+The reports of and other documents prepared by the two expert valuation witnesses, Mr Iain Prentice of Colliers International Valuation UK LLP, whom the liquidators called as a witness, and Mr Alastair Buchanan of J & E Shepherd, who gave evidence at Carnbroes request, were admitted as their evidence in chief.
+Both expert witnesses gave brief oral evidence in chief and were cross-examined in a succinct manner.
+The Joint Minute of Admissions also proposed detailed findings of fact on matters which were not in dispute.
+No evidence was led as to the likely price which NatWest could be expected to obtain if it had called up its standard security and sold the Property or which a liquidator of Grampian would be likely to have obtained on its sale in a winding up.
+Grampian transferred the Property to Carnbroe by a disposition dated 24 July 2014 in which the consideration was stated to be 550,000, having agreed an off- market sale.
+Entry was given to the Property on that date.
+Immediately before the sale, Grampian owed NatWest 473,604.68 under the LIBOR loan which was secured over the Property.
+Carnbroe did not pay the agreed consideration of 550,000 but instead, on 18 August 2014, its solicitors paid the sum of 473,604.68 to NatWest in repayment of the LIBOR loan to Grampian and to obtain a discharge of the standard security over the Property.
+Carnbroe did not pay the balance of the stated purchase price to Grampian until 9 June 2016, after the completion of the proof before the Lord Ordinary in this case.
+Carnbroe funded the purchase of the Property by a loan of 600,000 from the Bank of Scotland plc (the Bank).
+In support of its lending, the Bank obtained a report from DM Hall dated 23 June 2014, which confirmed the valuation in its March 2013 report, namely 1.2m on the open market and 800,000 on the assumption of a restricted marketing period of 180 days.
+On 28 July 2014, solicitors for the Bank questioned the discrepancy between the purchase price of 550,000 and the DM Hall valuation.
+Carnbroes solicitor replied by email to the effect that because NatWest were calling for payment under threat of enforcing their securities, there was no willing seller and no willing buyer for the Property and that Grampian did not have the option of a 180 day marketing period.
+The solicitor stated that he had spoken with DM Hall who had confirmed that, as a result, the assumptions made in their valuation did not apply.
+The Bank then made a loan of 600,000 to Carnbroe which was secured over the Property.
+The sale of the Property and the repayment of NatWests LIBOR loan left the other principal creditor, HMRC, unpaid.
+HMRC wrote to Grampian on 6 August 2014 requiring payment of tax that was due.
+On Grampians failure to pay, HMRC presented a petition for winding up Grampian founding on that debt.
+Mr MacDonald was appointed provisional liquidator on 12 September 2014 and on 21 November 2014 he and Ms Coyne were appointed as joint liquidators at a meeting of Grampian creditors.
+The liquidators raised the present proceedings on 28 November 2014.
+I can summarise the valuation evidence shortly.
+Mr Prentices evidence was that the open market value of the Property at the date of the transaction was 820,000.
+Mr Buchanans evidence of the open market value at that date was 740,000.
+The experts both made their valuations on the assumption that the bargain was between a willing seller and a willing buyer at arms length.
+They both assumed a proper period of marketing, which Mr Prentice thought would take between 12 and 24 months and Mr Buchanan thought would be 24 months.
+Both advised that it was appropriate to apply a discount of between 25% and 30% if there were a restricted marketing period of six months.
+Neither considered that a consideration of 550,000 was inappropriate if there were an immediate off-market sale by a financially distressed vendor, in accordance with the factual assumptions which Mr Buchanan was requested to address and addressed in his report.
+The question which has become of central importance in this case is whether there was an objective justification for such an urgent off-market sale, which caused so radical a reduction in the value of the Property in comparison with the open market value.
+The judgments of the Scottish Courts
+After a two-day proof, the Lord Ordinary held in an opinion dated 18 January 2017 ([2017] CSOH 8) that Carnbroe had established that the sale of the Property was made for adequate consideration.
+He recorded the submission which counsel made on behalf of Carnbroe that Grampian was fighting for its survival and that Mr Quinn had to make a quick decision.
+He continued: 30.
+While the purchase price fell short of the open market value, Grampian had very limited options.
+It was in a perilous financial position.
+It could not afford the leisure of a lengthy marketing period.
+NatWest was threatening to call up the standard security and to use other diligence against it in terms of the bond and floating charge it held.
+There was no other offer on the table.
+The earlier expressions of interest were just that.
+There was no solid proposal to accept.
+31
+Carnbroes offer presented an opportunity to obtain a quick sale.
+To place the property on the open market would have involved significant expense.
+There would have been advertising costs and an estate agency fee of 1% to 1.5%.
+There was no clear indication that a sale would be achieved within the standard marketing period of 12 to 24 months.
+According to the surveyors evidence, a stigma can attach to a property that remains on the market too long.
+It might be the subject of vandalism.
+He went on the state that Mr Quinn and Mr Gaffney were not associates in terms of the relevant legislative definition, but their long business relationship justified close scrutiny of the transaction.
+The expert surveyors had agreed that a price of 550,000 was not inappropriate if the Property had been marketed on a closed basis for six months.
+The liquidators appealed to the Inner House.
+In an opinion and interlocutor dated 23 January 2018 the First Division (the Lord President, Lord Drummond Young and Lord Malcolm) ([2018] CSIH 7) allowed the reclaiming motion, reduced the disposition of the Property and ordered Carnbroe to execute a disposition of the Property in favour of the liquidators.
+In the opinion of the Court, which Lord Drummond Young delivered, the First Division recorded its view (para 11) that the most important issue in the appeal was whether it was correct to assert that a quick sale was justified because Grampian had an immediate need for funds.
+The First Division concluded that it was not.
+Analysing the facts found by the Lord Ordinary, the Court identified four factors which were of central importance, namely Grampians severe financial difficulties when the finance house withdrew its invoice factoring facility, Grampians balance sheet insolvency, the sale of the trucks on which Grampian depended to provide its distribution service, and the sale of the Property which was its principal place of business and depot (paras 27-29).
+The First Division concluded that on an objective analysis there was no realistic prospect that Grampians business could continue in existence after the sale of those assets (para 30).
+In consequence, this was not a case in which the achievement of a quick sale of the Property would save the companys business.
+In its legal analysis of the principles of insolvency law the First Division (paras 12-20) stated that a person, once he or she became insolvent, owed a fiduciary duty to have regard to the interests of his or her creditors and as a result, if a debtor alienates property once he or she is insolvent, he or she must obtain full consideration for the property alienated.
+The First Division pointed out that under the current and prior statutory provisions relating to gratuitous alienations the burden of proving that full consideration had been given rested on the recipient of the insolvent debtors property.
+The same principles applied to a corporate insolvency in which directors of an insolvent company owed analogous fiduciary duties to have regard to the interests of the companys creditors as a body.
+As a result, the courts should take a relatively strict view of the adequacy of consideration (para 24).
+The First Division distinguished balance sheet insolvency (ie an excess of liabilities over assets) with cash flow insolvency (ie the inability of a trading entity to meet its debts as they fall due).
+It recognised both that an urgent forced sale, necessitated by a trading entitys need for cash to maintain liquidity in order to continue to trade, would generally result in a lower price than a sale in ordinary market conditions and that the need to maintain liquidity and stay in business could be a relevant factor in deciding whether the consideration paid was adequate.
+But if an insolvent trading entitys business was about to come to an end, there was no need to maintain liquidity and the paramount importance of the interests of the creditors prevailed over any need to pay debts as they fall due.
+The First Division stated (para 25): For these reasons we are of opinion that the need for a forced sale to provide immediate liquidity is not normally a factor that should be taken into account in determining the adequacy of consideration obtained for a sale of the debtors assets in any case where the debtor has ceased business or is about to cease business.
+As a result, if a trading entity sold its principal asset, such as its principal place of business, the court would have to scrutinize the companys commercial situation in order to determine whether it was realistic for it to continue to trade (para 26).
+Carnbroe appeals to this court with this courts permission.
+In presenting Carnbroes appeal, Lord Davidson of Glen Clova QC makes three submissions.
+He submits that the central issue is whether the insolvent companys financial distress justified an urgent sale and that the Lord Ordinary reached a conclusion which was open to him on the evidence.
+The First Division therefore erred in interfering with his evaluation.
+It erred in placing a gloss on the statutory words and requiring a strict approach to the assessment of any departure from open market value when the alternative facing Grampian was a sale by the standard security holder or a sale by a liquidator, both of which could be categorised as a forced sale.
+The Lord Ordinary made no findings as to the likely outcome of such sales, which were the appropriate comparators.
+Secondly, the First Division erred in identifying the applicable legal policy.
+Lord Davidson does not challenge the proposition that an insolvent company is in substance a trustee for its creditors but submits that a countervailing consideration is that the law should facilitate commercial transactions and promote commercial certainty.
+What the statute requires is the striking of a just balance between the creditors interests and the interests of those contracting at arms length with an insolvent company.
+The test of adequate consideration takes account of both interests.
+He refers by way of analogy to statutory provisions in English law (section 238 of the 1986 Act) and in Australian law (sections 588FB, 588FC and 588FF of the Corporations Act 2001) and submits that the test is whether the transaction was a commercial one which was satisfactory in all the circumstances rather than, as the First Division held, a strict approach to the words adequate consideration.
+Thirdly, he submits that the First Divisions judgment lacks commercial practicability: a purchaser in a commercial deal looks after its own interests and is entitled to exploit a vendors financial distress to obtain a favourable price in an arms length transaction.
+Sales at less than open market value are the norm where there are problems with liquidity.
+But the purchaser cannot know whether the vendor in pursuing an urgent sale has a realistic possibility of preserving its business or is otherwise acting in the interests of its creditors.
+If the First Divisions analysis were correct, prudence would require the purchaser to refuse to deal with a company in distress and instead wait to see if a formal insolvency eventuated which would enable it safely to purchase from a liquidator.
+Discussion i)
+The statutory provisions
+Section 242 of the 1986 Act enables among others the liquidator of a company to challenge a gratuitous alienation in Scotland if the alienation took place not earlier than two years before the commencement of the winding up or not earlier than five years before that date if the alienation favours an associate of the company.
+Subsection (4) provides: On a challenge being brought under subsection (1), the court shall grant decree of reduction or for such restoration of property to the companys assets or other redress as may be appropriate; but the court shall not grant such a decree if the person seeking to uphold the alienation establishes - (a) that immediately, or at any other time, after the alienation the companys assets were greater than its liabilities, or (b) consideration, or that the alienation was made for adequate Provided that this subsection is without prejudice to any right or interest acquired in good faith and for value from or through the transferee in the alienation.
+Several points may be made about the section 242.
+First, the liquidator or creditor is entitled to make the challenge if the alienation occurs at a date not less than two years before the commencement of the winding up or five years before that date if the transferee is an associate of the insolvent company: section 242(3).
+Secondly, subject to the next point, the court must give at least one of the remedies specified (section 242(4)).
+Thirdly, to prevent the court from giving such remedies, the transferee of the alienation must establish one of the listed circumstances (section 242(4)(a)-(c)).
+In this case the circumstance which Carnbroe asserts is that the alienation was made for adequate consideration.
+The burden is thus placed on the transferee to establish that the consideration given for the alienation was adequate.
+Fourthly, as I shall show when I discuss case law below, the test as to whether the consideration is adequate is an objective test.
+Fifthly, where a remedy is given against the transferee, the subsection protects any right or interest which a third party has acquired in good faith and for value from or through the transferee (the proviso in section 242(4)).
+This is relevant to the interest of the Bank in this case.
+Subsection (7) preserves the Scots common law of challenges to gratuitous alienations by providing that a liquidator and an administrator have the same right as a creditor has under any rule of law to challenge an alienation of a company made for no consideration or no adequate consideration.
+Section 242 of the 1986 Act applies to corporate insolvency a regime for challenging gratuitous alienations which was introduced in section 34 of the Bankruptcy (Scotland) Act 1985, which governs the bankruptcy of natural persons and partnerships in Scotland, following a recommendation of the Scottish Law Commission in their 1982 Report on Bankruptcy and Related Aspects of Insolvency and Liquidation (Scot Law Com No 68).
+The relevant provision in bankruptcy is now section 98 of the Bankruptcy (Scotland) Act 2016, but I will focus on the predecessor statute in discussing the genesis of the relevant provisions.
+Essentially the same regime was introduced into corporate insolvency by section 75 of and paragraph 20 of Schedule 7 to the Bankruptcy (Scotland) Act 1985 which inserted section 615A into the Companies Act 1985.
+Thereafter, it was replaced by the provision in the 1986 Act.
+I therefore refer to the new regime for gratuitous alienations as the 1985 statutory reforms.
+In chapter 12 of the report which led to the 1985 statutory reforms, the Scottish Law Commission set out its proposals to make more consistent the rules of Scots law, both common law and statutory, in relation to the challenges to gratuitous alienations and unfair preferences to creditors on insolvency.
+Scots common law has built on the principle of the actio Pauliana in Roman law which allowed a challenge to a gift made by an insolvent donor on the basis that the gift was a fraud upon his or her creditors.
+Under Scots common law it is not necessary to prove an intention to defraud if the creditor mounting the challenge can show three things: (i) the debtor was absolutely (ie balance sheet) insolvent at the time of the challenge and was either insolvent (in that sense) at the time of the alienation or was made insolvent by it, (ii) the alienation was made without onerous consideration, and (iii) the alienation prejudiced the challenging creditor.
+As it was difficult for a creditor to prove such insolvency at the date of the alienation, the Scottish Parliament by the 1621 Act (c 18) (the 1621 Act) strengthened the creditors position in challenges to alienations which an insolvent made to a conjunct and confident person (ie a close relative, business partner, employee etc to whom money or assets were often secretly transferred) without true, just and necessary causes by creating factual presumptions which the transferee had to rebut.
+The 1621 Act, which the Scottish courts interpreted liberally, had the effect that, if the creditor could establish that the debtor was insolvent at the date of the challenge, it was presumed both that the debtor had been insolvent at the date of the alienation and that the alienation was made without onerous consideration.
+It was not necessary that the alienation be wholly gratuitous as the challenge could be made to an alienation which was for a materially inadequate consideration in money or moneys worth.
+Under both the common law and the 1621 Act the challenger of the transaction did not have to prove that the debtor or the transferee was aware of the debtors insolvency or that the debtor was seeking to harm his creditors: McCowan v Wright (1852) 14 D 968, 970 per the Lord Justice-Clerk (Hope).
+Under the 1621 Act the challenger had to prove only the debtors insolvency at the date of challenge and that the challenger was prejudiced by the transaction if it was at an undervalue.
+Nor is it necessary when alleging fraud at common law, as a general rule, to prove that there was fraud or complicity on the part of the recipient of the alienation: McCowan v Wright (1853) 15 D 494, 496-504 per the Lord Justice-Clerk (Hope), 509 per Lord Cockburn, 512-515 per Lord Wood.
+A successful challenge led to the annulment of the alienation; where there had been a purchase at an undervalue there was no requirement that the retransfer of the property to the debtors estate was conditional upon the repayment of the consideration which the transferee had paid: Tennant v Miller (1897) 4 SLT 318.
+Both Scots common law and the 1621 Act protected a third party who took the alienated property from the transferee in good faith and for value; in such a circumstance the only remedy for the creditor or insolvency practitioner was to claim the sale proceeds from the transferee.
+The common law and the statutory provisions have been applied to companies as well as other debtors: Abram Steamship Co Ltd v Abram 1925 SLT 243; Bank of Scotland v R W Forsyth Ltd 1988 SC 245.
+Alongside these provisions concerning gratuitous alienations, Scots common law allowed creditors of an insolvent to challenge as fraudulent preferences voluntary preferences which the insolvent granted to a creditor during insolvency.
+Such fraudulent preferences could take the form of a grant of security for a prior debt or facilitating a creditors attempt to execute diligence or obtain a decree to enforce the debt.
+The common law was reinforced by another Act of the Scottish Parliament in the Act 1696 (c 5) (the 1696 Act), which nullified all deeds which a bankrupt granted within 60 days before or during his insolvency and which gave a preference to a creditor over other creditors.
+Like the 1621 Act, the courts gave this Act a broad interpretation.
+The Scottish Law Commissions expressed aim in promoting the reform proposals was to achieve a consistent and logical scheme for the annulment of alienations and unfair preferences.
+There is no suggestion of an intention fundamentally to alter the law in relation to gratuitous alienations on the repeal of the 1621 Act.
+Section 242 of the 1986 Act reflects many of the Commissions recommendations.
+The wording of the remedies which the court was empowered to give in section 242(4) tracks the Commissions recommendation in para 12.19 of the report but there is no discussion in the report of any prior case law on the nature of the remedy or remedies open to the court and no statement of policy to explain the recommendation.
+The report thus gives no guidance as to whether it was envisaged that the court would enjoy a discretion in devising a remedy.
+I return to this matter in paras 44 - 69 below.
+Both before and after the 1985 statutory reforms, the consequence of the annulment of an alienation by reduction was and is that the property is transferred back to the insolvents estate.
+If the court is not empowered to or does not impose conditions on the reduction, the transferee who has paid a substantial but inadequate consideration may only have a claim in unjustified enrichment against the insolvents estate for repayment of the consideration paid.
+In making that claim the transferee ranks as an ordinary creditor and may receive only a dividend or nothing at all, depending upon the balance between the insolvents assets and the debts due to secured creditors and other creditors.
+A claim for the recovery of the transferred asset itself or the proceeds of its sale ranks as a postponed debt: rule 4.66(2)(a) of the Insolvency (Scotland) Rules 1986 (SI 1986/1915), which has now been replaced by rule 7.27 of the Insolvency (Scotland) (Receivership and Winding Up) Rules 2018 (SSI 2018/347).
+There are three principal innovations in the 1985 statutory reforms which are relevant in this case.
+The first is that the presumptions in the 1621 Act which applied only to alienations to conjunct and confident persons have been extended to all gratuitous alienations, including those in which a purchaser at arms length buys an asset from the insolvent at an undervalue.
+The second is the introduction of new time limits for the challenge: the difference between associates and other transferees now lies only in the provision of different time limits in section 242(3) (para 20 above).
+The third is the specification in section 242(4) of the different remedies available to the court in place of a statutory statement that the transaction was a nullity.
+ii) Adequate consideration
+As I have said, before the 1985 statutory reforms to the Scottish law of insolvency, an alienation could be challenged not only if it was wholly gratuitous but also if it was at an undervalue.
+What amounted to a relevant undervalue before 1985? The leading Scottish textbook on bankruptcy before the 1985 statutory reforms was Goudy, A Treatise on the Law of Bankruptcy in Scotland, 4th ed (1914), which provided a commentary on both the common law and the Bankruptcy (Scotland) Act 1913, which was repealed in 1985.
+Goudy answered the question by explaining what was not an undervalue.
+His analysis of the prior case law was that at common law consideration for an alienation was not an undervalue if it was fairly equivalent to what is received (p 25) and similarly, under the 1621 Act if, it was fairly adequate for what was given (p 47).
+Support for Goudys view can be found in Bells Commentaries on the Laws of Scotland, 7th ed (1870), vol ii, p 179 which, in a commentary on the 1621 Act, stated: In proving the consideration of the deed, every case must depend on its own circumstances.
+It may be observed, however, in general, 1.
+That it is not in all cases necessary to prove that the highest price possible has been got for the subject; but quite sufficient if what is commonly called a fair price has been received, ie a price, which, in the whole circumstances of the case, indicates a fair and bona fide transaction.
+The Lord Justice-Clerk (MacDonald) in the Second Division of the Inner House used the concept of fair consideration in Gorries Trustees v Gorrie (1890) 17 R 1051, 1054.
+See also Glencairn v Birsbane (1677) Mor 1011, in which a defence that adequate consideration had been given was held to be relevant in the face of an assertion by the pursuer that he would have paid more, and Millers Trustee v Shield (1862) 24 D 821, in which, in a challenge to an allegedly unfair preference under the 1696 Act, the First Division treated the transfer of goods for an adequate sum as causing no prejudice to the insolvents creditors (p 828 per Lord Curriehill).
+The courts have adopted a similar approach to adequate consideration since the 1985 statutory reforms.
+The leading Scottish authority on the meaning of adequate consideration in section 242 of the 1986 Act is the opinion of Lord Cullen, when he was a Lord Ordinary, in Lafferty Construction Ltd v McCombe 1994 SLT 858.
+Both the appellant and the respondents accepted his statement as the proper approach to adequacy under section 242(4)(b).
+He stated, at p 861: In considering whether alienation was made for adequate consideration, I do not take the view that it is necessary for the defender to establish that the consideration for the alienation was the best which could have been obtained in the circumstances.
+On the other hand, the expression adequate implies the application of an objective standpoint.
+The consideration should be not less than would reasonably be expected in the circumstances, assuming that persons in the position of the parties were acting in good faith and at arms length from each other.
+Lord Eassie expressed a similar opinion in relation to the identical term in the equivalent provision in section 34(4) of the Bankruptcy (Scotland) Act 1985 in Aitkens Trustee v Aitken, 26 November 1999, reported as Kerr v Aitken [2000] BPIR 278, in which he stated, at p 282: In my opinion the expression adequate consideration means the giving of a consideration which might objectively be described as being a reasonable prestation for the property conveyed by the bankrupt to the transferee had the transaction taken place between parties acting at arms length in ordinary commercial circumstances.
+The only qualification which I would make to Lord Eassies formulation is that I would not speak of ordinary commercial circumstances, but, like Lord Cullen, would look to the circumstances of the case, which might (as I discuss in para 34 below) in an appropriate case include the sellers need to obtain a prompt sale to protect its cash flow in a liquidity crisis.
+Both judges correctly emphasise the objective nature of the test and that regard must be had to the commercial justification of the transaction in all the circumstances on the assumption that hypothetical people in the position of the insolvent and the transferee would be acting in good faith and at arms length.
+In my view, the requirement that the hypothetical parties are acting at arms length means that the hypothetical purchaser would not have knowledge of the sellers financial distress unless the insolvents financial embarrassment was known in the relevant market.
+It would not be a relevant consideration that the actual vendor had disclosed its financial embarrassment to the purchaser and that the purchaser had exploited that disclosure in its negotiation of the purchase price.
+There is nothing to suggest that the 1985 statutory reforms sought to innovate in this regard.
+As a result, the statutory provisions apply during the specified period before formal insolvency (in this case liquidation) whether or not the insolvent is aware of his, her or its insolvency and whether or not the transferee or purchaser is so aware.
+One of the relevant circumstances is the fact of the bankrupts insolvency.
+As Lord Drummond Young records in para 13 of the Inner Houses opinion [2018] CSIH 7, by reference to Bells Commentaries, (above), (pp 171-172), the restoration to the bankrupts estate of assets gratuitously alienated is based on the principle that on the occurrence of insolvency, it is the creditors who have the real interest in the bankrupts assets and the bankrupt must manage those assets in such a way as to protect their interests.
+There is an analogous principle in United Kingdom company law which, on the occurrence of insolvency, requires company directors to have regard to and act in the interests of the companys creditors as part of their fiduciary duties owed to the company as a whole: West Mercia Safetywear Ltd v Dodds [1988] BCLC 250; Companies Act 2006, section 172(3).
+The mischief which led to the enactment of the 1621 Act was the practice of bankrupts of creating secret trusts in favour of family members or close associates to protect their assets from their creditors.
+That mischief remains relevant.
+But the current statutory regime and the common law extend to business transactions at arms length and require the insolvent vendor to obtain an adequate consideration for its assets in the interests of its creditors, if a successful challenge is to be avoided.
+Another relevant consideration, as the Inner House states, is the objective purpose of the sale.
+As is clear from the expert evidence in this case, there is generally a close relationship between the time which is spent on marketing a commercial property and the price at which it will sell.
+Such property, if sold in a hurry, will usually obtain a significantly lower price than if it were exposed to the market for a longer period.
+On the occurrence of insolvency, the requirement that the insolvent has regard to the interest of creditors points towards the hypothetical vendor in the objective assessment having to carry out an adequate marketing exercise to obtain a good price for the property.
+If the insolvents property is not exposed to the market but is disposed of by private sale, there is an obvious risk of an inadequate price.
+But there may be circumstances in which an insolvent, acting in the interests of its creditors, needs to achieve a quick sale.
+An example of such a sale is where the insolvent is facing a liquidity problem and needs to obtain cash to pay its debts promptly in the hope of trading out of insolvency and preserving its business as a going concern.
+In such a circumstance, it may be objectively reasonable for the insolvent to accept the lower price from a quick sale of an asset in order to gain the chance of saving the business, as that outcome is likely to be in the interests of its creditors.
+An analogous example is the case of John E Rae (Electrical Services) Linlithgow Ltd v Lord Advocate 1994 SLT 788, in which an insolvent company, in order to continue to trade, needed certificates from the Inland Revenue that exempted it from the requirement that persons who employed it as a contractor or subcontractor should deduct tax from payments made to it.
+To obtain those certificates from the Inland Revenue the company granted a bond in respect of past tax liabilities of an associated company, whose business had been transferred to the company, arising from underpayments of income tax and national insurance contributions in respect of payment made to subcontractors.
+The liquidator raised an action under section 242 of the 1986 Act in which he sought reduction of the bond and repayment of sums which had been paid to the Revenue under it on the basis that it was an alienation in favour of the associated company.
+But Lord Clyde rejected the liquidators challenge.
+Adequate consideration had been given because the company, in return for undertaking to pay the associated companys debt, had obtained in effect the right to continue trading and had thus staved off its imminent demise.
+That approach may be questioned where there is no evidence to show that the projected cash flow advantage, which the certificates gave the company, was measurable in money or moneys worth and, as so measured, was adequate as Lord Cullens formulation envisages.
+But if there is such evidence, that approach accords with the section.
+Where there is no question of a sale to preserve a companys liquidity or otherwise in the hope of enabling it to remain in business, and where the insolvent company is ceasing or has ceased to carry on business and is, in reality, winding up its business in an informal way without the involvement of a liquidator or an administrator, what is an adequate consideration?
+The answer, in the context of the objective exercise which the law mandates, will depend upon the circumstances of the insolvency.
+The aim of the common law and section 242 is to make sure that the creditors of the insolvent company are not prejudiced by an alienation by that company which brings into the insolvent estate materially less than would be obtained in an arms length transaction between bona fide commercial parties in the circumstances of the case.
+Where the directors of the insolvent company, mindful of their duty to creditors, have an opportunity to place a property on the market and carry out a proper marketing exercise to enhance the price which the property will command, adequate consideration should be measured against the likely result of such an exercise.
+Where the insolvent company is not able to support such a marketing exercise, the adequacy of the consideration achieved on a sale is to be measured by comparing the consideration which the insolvent company has accepted against the likely outcomes which a formal insolvency would achieve through the sale or other disposal of the asset by a liquidator or administrator, taking into account the fees which the insolvency practitioner would charge for effecting the sale.
+Where the asset in question is the subject of a security with a power of sale, it would be relevant also to consider the likely outcome of that sale.
+The aim of the common law and section 242 in that context is to make sure that the creditors of the insolvent company are not prejudiced by an alienation by that company which brings into the insolvent estate materially less than would be obtained by the formal insolvency process or the sale by the security holder.
+A liquidator is under a fiduciary duty to the company, and possibly its creditors as a class, to exercise the professional care and skill of an insolvency practitioner in realising the assets of an insolvent company: Hague v Nam Tai Electronics Inc [2008] UKPC 13; [2008] BCC 295; Oldham v Kyrris [2003] EWCA Civ 1506; [2004] BCC 111; see by analogy Lightman & Moss on the Law of Administrators and Receivers of Companies, 6th ed (2017), para 12-042.
+The liquidator must take reasonable care in choosing the time at which to sell the property and must also take reasonable care to obtain the best price that the circumstances of the case, as he reasonably perceives them, permit: In re Charnley Davies Ltd (No 2) [1990] BCLC 760, 775-776 per Millett J; Silven Properties Ltd v Royal Bank of Scotland plc [2003] EWCA Civ 1409; [2004] 1 WLR 997, para 25 per Lightman J.
+The holder of a standard security is under a statutory duty when selling the security subjects: to advertise the sale and take all reasonable steps to ensure that the price at which all or any of the subjects are sold is the best that can reasonably be obtained.
+(Conveyancing and Feudal Reform (Scotland) Act 1970, section 25)
+In my view, where the directors of an insolvent company are conducting an informal winding up by disposing of the companys assets and are unable as a result of circumstances beyond their control to carry out a full marketing exercise, the sale should be measured against that standard.
+Lord Davidson accepts the approach of comparing a private sale with a sale in a winding up or a sale by the holder of the standard security in his submission to the court that the Inner House has erred in adopting a comparison with the open market value.
+But it is necessary to have regard to these duties imposed on the insolvency practitioner and the holder of a standard security when making the comparison which he advocates.
+iii) The application of the law to the facts of this case
+It is clear from the evidence of Mr Quinn that after Grampians invoice factor withdrew its factoring facility, he was not able to obtain alternative funding and so disposed of the assets by which Grampian carried on its business.
+The sale of the Property, which was Grampians distribution centre, following the sale of its vehicles was in effect part of an informal winding up of the business.
+There is no justification for the off-market sale of the Property at a price so far below market value on the ground of urgency.
+There was no evidence that Grampian had sought NatWests agreement that it should place the property on the open market.
+Even if one can infer from Mr Quinns evidence that such a marketing exercise was not possible, Carnbroe has not established that there was adequate consideration as it led no evidence to support the view that a sale by NatWest or a sale by the liquidator with NatWests consent would have been likely to achieve a price net of expenses which was comparable to or less than the sale price which Grampian accepted.
+The Inner House was therefore entitled to interfere with the Lord Ordinarys assessment as to whether there had been adequate consideration.
+In reaching this view, I have sympathy for the predicament of the Lord Ordinary as Carnbroe ran its defence on the basis that an urgent sale was required to preserve Grampians business and it does not appear from the pleadings and written submissions which were provided to this court that the liquidators legal team challenged this submission.
+It does not appear that they argued, as they did in the Inner House, that the evidence did not support the justification of the discounted price on the basis of urgency because Grampians business was at an end.
+If there were such a failure, it might in other circumstances have justified a modification of an award of expenses.
+But in this case Carnbroes failure to pay the whole of the contracted purchase price until after the proof had been completed caused the Lord Ordinary to award expenses in favour of the liquidators, notwithstanding that they lost before him.
+There is therefore no basis for interfering in the award of expenses at first instance.
+Absent evidence that the 550,000 which Carnbroe eventually paid for the Property was equivalent to the price which NatWest or a liquidator would be likely to obtain for the Property after deduction of the likely expenses of sale and other costs incurred as a result of a delay in achieving the sale, Carnbroe failed to establish that the Property had been sold for adequate consideration.
+I therefore agree with the conclusion of the Inner House, albeit for reasons which are not precisely the same.
+That would be sufficient to dispose of the appeal if the question of remedies had not arisen in debate.
+I therefore turn to that question.
+iv) The statutory remedies
+To provide context for discussing the remedies which the court can give to reverse a gratuitous alienation, it may be useful to summarise the position.
+First, at common law and under the 1986 Act it is not a condition of a challenge to a transaction that either the transferor or the transferee has knowledge of the transferors insolvency.
+Where the alienation that is wholly gratuitous is made by an insolvent to his or her family or to a close business associate one would expect in the normal course that the insolvent transferor and the transferee would have some knowledge of the transferors financial difficulty.
+But no such knowledge need be proved.
+Secondly, the 1985 statutory reforms for the first time have imposed on a transferee, who is not an associate of the insolvent transferor, the burden of establishing the circumstances in section 242(4) which exclude the courts power to reverse the alienation.
+This is a point to which I will return in para 62 below.
+Thirdly, the test for adequate consideration is an objective test which takes account of all the circumstances, including circumstances of which one or both of the parties to the transaction may not have been aware, such as the transferors insolvency and the objective purpose of the transaction.
+There is therefore a significant risk that a bona fide purchaser without knowledge of the sellers insolvency or the reason why the seller is willing to sell at a price substantially below open market value may be exposed to a challenge which he or she cannot defend.
+It is not realistic in a commercial negotiation to expect a purchaser to ask a seller why he or she is not demanding a higher price.
+It was this concern that caused the court during the hearing to raise the question of the courts discretion in giving a remedy under section 242(4) of the 1986 Act.
+In response, counsel referred the court to three cases which addressed the equivalent provision in personal bankruptcy (section 34(4) of the Bankruptcy (Scotland) Act 1985), which provided that on a challenge being brought the court shall grant decree of reduction or for such restoration of property to the debtors estate or other redress as may be appropriate.
+In the first, Shorts Trustee v Chung 1991 SLT 472, a man purchased two flats at a significant undervalue from an insolvent and conveyed them for no consideration to his wife.
+The insolvents permanent trustee successfully challenged the sales as gratuitous alienations.
+Before the Lord Ordinary and on a reclaiming motion to the Second Division the wife, whose husband had died before the challenge, submitted that the court had a discretion under section 34(4) to make an appropriate order, which, she submitted, was not a reduction of the dispositions but an order for payment of the difference between the price which her husband had paid and the market value of the flats at the date of the alienation.
+It does not appear that the wife, who as the ultimate transferee was the defender of the action, argued that it was inequitable to reduce the dispositions because she would not be able to recover the (inadequate) consideration paid.
+This may be because her husband had paid the consideration and she had been a gratuitous disponee of the flats from him.
+It is not clear from the report that she had title to seek repetition of the price which he had paid.
+The argument of her counsel was that it was inequitable to reduce the dispositions (a) because the wife would rank as a postponed creditor in the insolvency under section 51(3)(c) of the Bankruptcy (Scotland) Act 1985, which governed her right to recover the properties or the proceeds of their sale and (b) because the properties had increased in value significantly since the date of the alienation.
+The Second Division (the Lord Justice-Clerk (Ross) and Lord McCluskey and Lord Sutherland) upheld the trustees contention that the section did not give the court a general equitable discretion and that the statutory words, or other redress as may be appropriate, were designed to enable the court to make an appropriate order in a case where reduction or restoration of the property was not available as a remedy.
+In the opinion of the court, which Lord Sutherland delivered, it is stated at p 476: The starting point in a case of this nature for interpretation of section 34(4) is that the original alienation has been avoided and the transaction has been vitiated.
+This is not a good starting point for an argument which is based solely on equity.
+It is in our opinion clear from a reading of section 34(4) that the general purpose is to provide that as far as possible any property which has been improperly alienated should be restored to the debtors estate.
+In the case of a disposition of heritable property this can easily be done by reduction of that disposition.
+We consider that the reference to other redress as may be appropriate is not intended to give the court a general discretion to decide the case on equitable principles but is designed to enable the court to make an appropriate order in a case where reduction or restoration of the property is not a remedy which is available.
+The Second Division (the Lord Justice-Clerk (Cullen) and Lord McCluskey and Lord Morison) confirmed this approach in the second case, Cays Trustee v Cay 1998 SC 780.
+In that case an insolvent transferred to his wife 34,885.11, which were the proceeds of sale of his share of a fishing licence.
+In response to a challenge by the insolvents permanent trustee, she argued (i) that she had given adequate consideration because she had undertaken in return to pay and had paid certain of his debts amounting to over 20,000 and had undertaken to use the balance of the sum transferred to pay household bills.
+The court accepted that the undertaking to pay 20,000 towards the insolvents debts was consideration but rejected the submission that the use of the balance to pay household bills could be treated as consideration as she was under a pre-existing statutory duty to aliment her insolvent husband.
+The court held that the undertaking to pay and payment of 20,000 was not adequate consideration and rejected her alternative argument that she was entitled to set off that sum against the demand for repayment of the sum which she had received, holding that section 34(4) did not confer a general equitable jurisdiction on the court.
+The court stated at p 788: We consider the court in Shorts Trustee v Chung correctly held that the section did not create any general discretion to decide on equitable principles to order something less than a full return of the alienated property.
+The third case, Baillie Marshall Ltd v Avian Communications Ltd 2002 SLT 189, is an opinion of Lord Kingarth in the Outer House on a challenge to an unfair preference under section 243 of the 1986 Act, in which subsection (5), providing for remedies, is in substantially the same terms as section 34(4) of the Bankruptcy (Scotland) Act 1985 and section 242(4) of the 1986 Act.
+In this case an insolvent company transferred its assets and business to the defender for a consideration which included the payment of the debts of the transferor companys trade creditors but not its other creditors.
+The liquidator did not seek to annul the alleged unfair preferences to recover funds from the trade creditors who had been paid their debts but concluded for payment by the defender of damages measured by the alleged loss to the remainder of the unsecured creditors.
+Lord Kingarth held that such a remedy was not available under section 243.
+Referring to Shorts Trustee v Chung and Cays Trustee v Cay, he stated, at para 22: It seems to me to be reasonably clear, notwithstanding the apparent width of the language of subsection (5) (in particular or other redress as may be appropriate) that the purpose of the section as a whole is to enable the liquidator (amongst others) to undo, so far as possible, what was done when the preference was created and, so far as possible, to restore the asset position of the company, diminished by the transaction which created the preference, for the benefit of the general body of creditors.
+There would appear to be no doubt that the primary remedies envisaged are reduction and restoration of property, and that the words or other redress as may be appropriate properly fall to be construed as relating to redress of the same character, and do not give the court a general equitable jurisdiction.
+I am satisfied that the provisions in the 1986 Act providing remedies against gratuitous alienations (section 242(4)) and unfair preferences (section 243(5)) and the equivalent provisions in the bankruptcy legislation do not confer a general equitable jurisdiction.
+It is clear from the law before the 1985 statutory reforms that the principal remedy available in challenges to both gratuitous alienations and unfair preferences was the annulment of the impugned transaction.
+That remains the primary remedy after the 1985 statutory reforms.
+There is a strikingly contrasting juxtaposition in the Bankruptcy (Scotland) Act 1985 of the remedies made available to reverse gratuitous alienations and unfair preferences (sections 34(4) and 36(5) respectively) and the wider power which section 35 conferred on the court to recall an order made against the insolvent on divorce for the payment of a capital sum.
+In contrast with sections 34(4) and 36(5), the court was enabled under section 35, when deciding whether to order the repayment of the whole or part of a sum paid or property transferred, to have regard to the whole circumstances including the financial and other circumstances of the person against whom the order would be made.
+This conferred a general equitable jurisdiction which the statutory remedies for gratuitous alienations and unfair preferences do not entail.
+It is also well established that the transferee of a gratuitous alienation or the recipient of an unfair preference cannot set off sums due to it by the insolvent for different purposes as that would defeat the purpose of sections 242 and 243 of the 1986 Act: Raymond Harrison & Cos Trustee v North West Securities Ltd 1989 SLT 718, 724E; John E Rae (Electrical Services) Linlithgow Ltd (above), 791; Cays Trustee (above), 787-788.
+But commentators on the statutory provisions have criticised the disproportionate consequence of annulling the transaction when the transferee has paid a significant albeit inadequate sum for the alienated property and is made to rank as an ordinary creditor in relation to his claim for unjustified enrichment: St Clair and Drummond Young, The Law of Corporate Insolvency in Scotland, 4th ed (2011), para 3.10.
+An order for the restoration of the property to the insolvent company, which leaves the transferee to prove in competition with other creditors for the price which it originally paid, not only is harsh on the transferee but also gives the general body of creditors an uncovenanted windfall as the company would not have received the price but for the impugned sale.
+Lord Davidson and Mr Brown in their written submission for Carnbroe point out the anomalous results to which Shorts Trustee can give rise.
+They set out four circumstances.
+First, if an insolvent dispones heritable property gratuitously to a transferee, who holds it when the liquidator mounts a challenge under section 242, reduction is available and the company receives back the property but obtains no windfall at the transferees expense.
+Secondly, if the gratuitous transferee sells the property to a bona fide third party for full value before the liquidators challenge, the court would grant other redress which would be an order to account to the liquidator for the value of the alienated property obtained in that sale.
+This would achieve essentially the same financial outcome as reduction in the first example.
+If, thirdly, the transferee paid a consideration for the property which was substantial but was not adequate consideration, reduction of the disposition would have the effects which I discussed in para 51 above: the creditors receive a windfall and the transferee is significantly worse off than if it had declined to purchase the property or if it had paid full value.
+Fourthly, if the purchaser/transferee in the third example has sold on to a bona fide third party for full value before the liquidator mounts a challenge, the court could only order other redress.
+The court would have the power to order the payment to the insolvent estate of the shortfall of consideration in the original sale; the court would not have to order the purchaser/transferee to disgorge the whole of the onward sale price and rank as an unsecured creditor for the repayment of the price which it had paid in the original sale.
+Is the court constrained to interpret section 242 of the 1986 Act so as to compel such a harsh and anomalous result as mentioned in para 51 above when there is a sale at an undervalue? In my view it is not.
+The words themselves (the court shall grant decree of reduction or for such restoration of property to the companys assets or other redress as may be appropriate) do not compel such an interpretation.
+The statutory phrase does not speak of the court granting remedy X, which failing remedy Y. I do not see the eiusdem generis principle as a helpful tool in this case where the list comprises only two specific decrees.
+Further, the use of or cannot have been intended to be exclusively disjunctive as there will be cases where an insolvency practitioner seeks the restoration of different types of property in the same action and may have conclusions for the reduction of dispositions and the reconveyance of heritable property as well as for payment of money which has been alienated.
+I would read or in its context as being both conjunctive and disjunctive (ie and/or).
+In my view the statutory words are broad enough to allow the court to take account of the consideration which a bona fide purchaser has paid the insolvent in devising an appropriate remedy.
+Mr McBrearty QC and Ms Ower for the liquidators in their post-hearing written submissions advance two principal arguments against this conclusion.
+First, they rely on rule 4.66 of the Insolvency (Scotland) Rules 1986, which has been re- enacted as rule 7.27 of the Insolvency (Scotland) (Receivership and Winding Up) Rules 2018 for the contention that the transferee, which is subjected to a reduction of a disposition under section 242, is penalised by the designation of its claim for repetition of the purchase price which it has paid as a postponed debt, giving it the lowest priority in the distribution of an insolvent estate.
+In my view this assertion is misconceived.
+Paragraph 2(i) of the relevant rule provides that a postponed debt includes: a creditors right to any alienation which has been reduced or restored to the companys assets under section 242 or to the proceeds of sale of such an alienation.
+It is clear from the plain words of this provision that the postponed debt is the transferees right to reclaim the property which had been alienated or the proceeds of sale of that property.
+It addresses the right of a transferee to reclaim the property, which had been alienated and restored to the insolvent estate, if a surplus emerged in a winding up.
+It does not address the claim in unjustified enrichment of a transferee which has paid an inadequate consideration for the repetition of the sums which it has paid which is inconsistent with any right to a reconveyance of the property to the transferee.
+The provision therefore does not support a contention that Parliament intended to penalise the gratuitous alienee in relation to a claim for unjustified enrichment.
+Secondly, they submit that the Scottish Parliament has re-enacted the equivalent of section 242 in personal insolvency (section 34(4) of the Bankruptcy (Scotland) Act 1985), which was the subject of the decisions in Shorts Trustee and Cays Trustee, in section 98(5) of the Bankruptcy (Scotland) Act 2016 (the 2016 Act).
+Section 98(5) provides: On a challenge being brought under subsection (2), the court must grant decree - (a) of reduction, or (b) for such restoration of property to the debtors estate, or such other redress, as may be appropriate.
+The 2016 Act is a consolidation Act which follows on the Scottish Law Commissions Report on the Consolidation of Bankruptcy Legislation in Scotland (2013) (Scot Law Com No 232).
+It is intended to restate the law but not change it.
+Counsel for the liquidators submit that by re-enacting section 34(4) in these terms the Scottish Parliament should be presumed to have endorsed the Inner Houses approach in Shorts Trustee and Cays Trustee.
+They refer in this regard to the Barras principle: Barras v Aberdeen Steam Trawling and Fishing Co Ltd 1933 SC (HL) 21; [1933] AC 402 and R (N) v Lewisham London Borough Council [2015] AC 1259.
+The Barras principle is only a presumption and it is not without controversy.
+Lord Wilberforce and Lord Simon of Glaisdale doubted the validity of the principle in Farrell v Alexander [1977] AC 59, 74F-G and 90E-91C, Lord Neuberger of Abbotsbury has expressed strong reservations as to its propriety and its operation in R (N) (paras 143-148), and Lord Lloyd-Jones has expressed similar reservations in R (Belhaj) v Director of Public Prosecutions (No 1) [2019] AC 593, para 46.
+In any event, the principle cannot apply in this case as the 2016 Act is a consolidation Act: Haigh v Charles W Ireland Ltd 1974 SC (HL) 1, 40; [1974] 1 WLR 43, 57, per Lord Diplock; MacMillan v T Leith Developments Ltd [2017] CSIH 23, para 109 per Lord Drummond Young.
+In that paragraph Lord Drummond Young stated: If all that Parliament is doing in a consolidation statute is to reproduce the existing law, with no scope for significant change, it cannot be said that there is any genuine endorsement of any cases interpreting the statutes concerned.
+There is no power to do so.
+I agree with that statement; the re-presentation of the same statutory phrase in two sub-paragraphs in section 98(5) of a consolidation statute cannot amount to a parliamentary endorsement of prior case law.
+Even if such a presumption applied, I am not persuaded that it would be sufficient to support the liquidators case.
+It would be necessary to put in the balance against it both the harsh and anomalous results which I have mentioned and the mismatch between the interpretation in Shorts Trustee and Cays Trustee on the one hand and the established principled approach of Scots common law on the other, both of which are matters which the senior courts have not addressed.
+The general approach of the law is that when a person seeks to annul a transaction, for example on the basis that a contract was induced by fraudulent or innocent misrepresentation, the court will only grant decree of reduction if it is able to place the defender substantially in the position it would have been in if the parties had not entered into the impugned contract: Boyd & Forrest v Glasgow and South Western Railway Co 1915 SC (HL) 20, 28 per Lord Atkinson, 36-37 per Lord Shaw of Dunfermline.
+In Spence v Crawford 1939 SC (HL) 52 the House of Lords made it clear that the court has power to order monetary adjustments to restore the defender to its pre-contract position.
+Lord Wright stated at p 77: restoration is essential to the idea of restitution.
+To take the simplest case, if a plaintiff who has been defrauded seeks to have the contract annulled and his money or property restored to him, it would be inequitable if he did not also restore what he had got under the contract from the defendant.
+Though the defendant has been fraudulent, he must not be robbed nor must the plaintiff be unjustly enriched, as he would be if he both got back what he had parted with and kept what he had received in return.
+The purpose of the relief is not punishment, but compensation.
+It appears from the limited authorities that are available that the law before the 1985 statutory reforms provided as the only remedy the annulment of the gratuitous alienation if such annulment was possible.
+Where the alienation was wholly gratuitous, the question of restitution of the defender did not arise.
+But where the insolvent had sold at an undervalue the law did not provide for a general restitutio in integrum: Tennant v Miller (above).
+Similarly, in relation to fraudulent preferences, Bells Commentaries (above), (p 217), in addressing the 1696 Act (c 5) (viz para 25 above), stated: It may be questioned whether the success of the reduction is to be accompanied by a restitutio in integrum, so that the defender shall hold the same advantages when deprived of the security, which he would have enjoyed had he never accepted it.
+The answer seems to be, that a restitutio in integrum is no part of the reduction on the Act 1696, nor necessarily implied as a condition of it; but that as the creditors are entitled to reduce only in so far as the deed is prejudicial to them, their success will be limited to the effect of restoring them to the full benefit of the rights they would have enjoyed had the deed never been granted.
+Bell went on to state, as an example, that if a creditor had renounced a security which he had held over any part of the insolvents estate in exchange for the impugned security, he would be entitled to the full benefit of the old security when the new security was annulled, because it was only to the extent of the difference that the new security could be said to be prejudicial to prior creditors.
+Further, in Thomas v Thomson (1866) 5 M 198, which concerned an application by a trustee in bankruptcy to annul a security in the form of an ex facie absolute disposition on the ground that it was a fraudulent preference, the court ordered a partial reduction only, which preserved the security in so far as it secured a debt which was not a preference.
+The prior law was thus not wholly inflexible and allowed a partial restitutio in integrum in the context of the annulment of the document which effected the preference.
+Reduction was also not the only remedy under the prior law.
+Where the transaction could not be nullified, for example where property which an insolvent company had purchased from one of its directors at an overvalue had been sold to a third party in good faith and for value, the court allowed the liquidator to recover from the director a sum of money representing the difference between the inflated price paid and the true value of the property at the date of the transaction: Abram Steamship Co Ltd (above).
+In that context the remedy reflected the disadvantage which the companys creditors had suffered as a result of the impugned transaction and gave them no windfall.
+The law before the 1985 statutory reforms appears to have been a partial exception to the general principle that the annulment of a transaction necessarily involved restoring the defender to its pre-transaction position.
+But there is only very limited case law on the point, which the Scottish Law Commission did not discuss.
+The 1985 statutory reforms, by imposing on a purchaser, who is not an associate of the insolvent, the burden of proving adequate consideration was paid, have increased the risk that a bona fide purchaser may suffer injustice if there is no flexibility in the remedies which the court can give.
+Such an outcome would also deter rescue transactions involving the purchase of assets from distressed businesses and hamper the rescue culture which statutory insolvency law has sought to promote.
+These considerations point towards a more flexible interpretation of the remedies provided in section 242(4).
+But, as I have said, there is nothing in the Scottish Law Commissions report which explains the policy behind its recommendation which has found its way into section 242 of the 1986 Act.
+The court must therefore fall back on the statutory words, which are broad enough to allow the court in an appropriate case, and if justice requires it, to devise a remedy to protect the bona fide purchaser of property from a reversal of its purchase which would otherwise give the creditors of the insolvent a substantial windfall at its expense.
+The general approach to the annulment of transactions requires no more from a fraudster than that he or she compensate the victim, as Lord Wright stated in Spence v Crawford (para 58 above).
+Section 242(4) does not mandate restitutio in integrum in every case.
+But neither does it exclude such restitution as part of the appropriate remedy.
+It is not open to doubt that an insolvency operates adversely on the insolvents unsecured creditors who have paid for goods or services which they have not received or have provided goods or services and not been paid.
+Gratuitous alienations or unfair preferences by an insolvent can cause further harm to unsecured creditors.
+The pre-1985 law, by not requiring full restitutio in integrum, had the benefit of discouraging transferees from entering into transactions by which an insolvent person transfers his or her assets gratuitously or at an undervalue.
+Since the 1985 statutory reforms, there may be circumstances in which the court considers it appropriate to annul a transaction which was a gratuitous alienation without also ordering the repayment of the inadequate consideration, thus leaving the transferee to rank an unsecured claim for unjustified enrichment in the insolvency.
+For example, business associates of an insolvent might knowingly seek to obtain property at an undervalue to the prejudice of the insolvents creditors.
+The words of section 242(4) of the 1986 Act leave open that option to the court.
+But there would in my view need to be clear statutory words to require the court in all circumstances to penalise the purchaser of property who had no knowledge or incomplete knowledge of the circumstances of the insolvent and who was not colluding to remove assets from the reach of the insolvents creditors.
+There are no such words in the subsection.
+There will be cases in which, as the commentators have suggested, it would be wholly disproportionate and unfair to annul the property transfer without giving the bona fide purchaser credit for the consideration which it has paid.
+In my view, section 242(4) gives the court sufficient power to devise an appropriate remedy.
+This does not involve a general equitable jurisdiction to take account of the personal and financial circumstances of the defender such as was envisaged by section 35 of the Bankruptcy (Scotland) Act 1985 (now section 100 of the 2016 Act).
+Nor does this approach call into question Lord Kingarths conclusion that section 243 (and by analogy section 242) does not allow a liquidator to seek what was in substance damages from a defender.
+The question for the court is simply whether in devising a remedy for the gratuitous alienation by restoring property or value to the insolvents estate in a particular case it should order that credit be given in some way for the consideration which a bona fide purchaser has paid.
+In so far as Shorts Trustee v Chung and Cays Trustee v Cay held that the court did not have this power, I respectfully conclude that they were wrongly decided and should not be followed.
+The question of whether the subsection is consistent with article 1 of the First Protocol to the European Convention on Human Rights (A1P1) does not arise in this context.
+This is because there is no need to read down the words of section 242(4) to avoid a disproportionate result as there is nothing to prevent the court in a particular case from taking account of the consideration paid by the transferee in devising the remedy.
+Because of that determination, I also see no reason to question the conclusion which was reached in cases in the Outer House that Parliament acted within its wide margin of appreciation in providing for remedies against gratuitous alienations and unfair preferences in the 1985 statutory reforms without creating a general equitable jurisdiction that takes account of the defenders personal and financial circumstances: Accountant in Bankruptcy v Walker [2017] CSOH 78; 2017 SLT 890; Johnstons Trustee v Baird [2012] CSOH 117.
+There may also be cases where the purchase of the alienated property is wholly funded by borrowings and the bona fide third party lenders security is protected by the proviso to section 242(4), enabling it to recover its lending by calling up its security or by allowing the liquidator to realise the secured asset in the winding up without pursuing recovery from its borrower other than as a formality.
+In such case there would be no call for the court to qualify in any way its annulment of the transfer as the interested parties themselves can achieve substantive restitutio in integrum.
+Counsel for the liquidators inform the court that the liquidators have recognised the validity of the Banks security by virtue of the proviso to section 242(4).
+As a result, if the Bank still had a claim for the sums it had lent to Carnbroe, Grampians creditors would receive no windfall through the reduction of the disposition of the Property.
+But in written submissions since the hearing, backed by supporting documents, counsel for Carnbroe inform the court that Carnbroe repaid its borrowings for the purchase of the Property in July 2016.
+Counsel also explain that Carnbroe has recently re-financed and consolidated its borrowings by taking out a facility from Together Commercial Finance Ltd (TCFL).
+Counsel state that the Banks securities over the Property have been discharged and that there are now no securities covering the Property.
+But these are not, as yet, agreed facts, in part because Carnbroes lawyers have not authorised the Bank to confirm the position to the liquidators lawyers and in part because the re-financing by TCFL has occurred very recently.
+It ought to be straightforward for Carnbroe to provide documents to vouch these assertions to the liquidators and for the liquidators advisers to search in the Land Register and at Companies House to avoid further dispute about these facts.
+In the light of this judgment and the absence of agreed facts, it is necessary to afford the First Division an opportunity to consider whether it is appropriate in the circumstances of this case to qualify the remedy of reduction which it has given to take account of all or part of the consideration which Carnbroe gave for the purchase, for example by requiring the liquidators to pay a specified sum to Carnbroe as a condition of the reduction.
+Conclusion
+I would allow the appeal but only to the extent that I would remit the case to the First Division to consider what is the appropriate remedy under section 242(4) in the light of the courts power to give appropriate redress.
+I would allow the appeal but only to the extent that I would remit the case to the First Division to consider what is the appropriate remedy under section 242(4) in the light of the courts power to give appropriate redress.
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+It is axiomatic that a judge or an arbitrator must be impartial; he or she must not be biased in favour of or against any party in a litigation or reference.
+A judge or arbitrator, who is not in fact subject to any bias, must also not give the appearance of bias: justice must be seen to be done.
+This appeal is not concerned with any deliberate wrongdoing or actual bias but with the circumstances in which an arbitrator in an international arbitration may appear to be biased.
+It raises important questions about the requirement that there be no apparent bias and the obligation of arbitrators in international arbitrations to make disclosure.
+The appeal concerns an arbitration under a Bermuda Form liability policy which arose out of the damage caused by the explosion and fire on the Deepwater Horizon drilling rig in the Gulf of Mexico in 2010 when a well was being plugged in the context of a temporary abandonment.
+That disaster gave rise to several arbitrations between insured parties and insurers.
+The principal issues which are raised in this appeal are: (i) whether and to what extent an arbitrator may accept appointments in multiple references concerning the same or overlapping subject matter with only one common party without thereby giving rise to an appearance of bias, and (ii) whether and to what extent the arbitrator may do so without disclosure.
+I will therefore address first, the duty of impartiality in the context of arbitration, secondly, whether an arbitrator is under a legal duty to disclose particular matters, thirdly, how far the obligation to respect the privacy and confidentiality of an arbitration constrains his or her ability to make disclosure, and fourthly, whether a failure to disclose such matters demonstrates a lack of impartiality.
+I then address the times at which (a) the duty of disclosure and (b) the possibility of bias fall to be assessed.
+The appellants (Halliburton) entered into a Bermuda Form liability policy (the Policy) with ACE Bermuda Insurance Ltd, which is now called Chubb Bermuda Insurance Ltd (Chubb) in 1992 and the Policy was renewed annually.
+Chubb and the three arbitrators involved in the arbitration which I discuss below are the defendants in this action to remove one of the arbitrators.
+But Chubb alone defended the proceedings and appears as the respondent in this appeal.
+Because the appeal raises questions of law of general importance in the field of arbitration this court allowed and received written and oral representations from the International Court of Arbitration of the International Chamber of Commerce (ICC) and the London Court of International Arbitration (LCIA) and written submissions from the Chartered Institute of Arbitrators (CIArb), the London Maritime Arbitrators Association (LMAA) and the Grain and Feed Trade Association (GAFTA).
+The court is very grateful to the interveners for their contribution to the clarification of the wider issues raised by this appeal.
+At first instance, the names of the parties to, and the arbitrators in, the arbitrations referred to in these proceedings were anonymised.
+In the judgment handed down by the Court of Appeal, the names of the parties to the Halliburton/Chubb arbitration were revealed and only the names of the arbitrators were anonymised.
+During the hearing of this appeal, this court questioned the need for and appropriateness of such anonymity once the names of the parties to the arbitration had been disclosed and gave the parties to these proceedings, including the arbitrators, an opportunity to make submissions on the issue.
+Arbitration in the United Kingdom is as a norm a private form of dispute resolution and both the arbitration and the arbitral award are not generally a matter of public record.
+In England and Wales, the rules of procedure (CPR rule 62.10) empower the court to order that a claim under the Arbitration Act 1996 (the 1996 Act) or otherwise affecting arbitration proceedings or an arbitration agreement be heard in public or in private but create a norm that such claims are heard in private.
+The obligations of confidentiality which are usually imposed in arbitration agreements are designed to protect the privacy of the parties to the arbitration and the evidence led in arbitral hearings.
+But nobody has suggested any basis in the public interest for preserving the anonymity of the arbitrators themselves in a challenge of this nature.
+I am satisfied that the principle of open justice, which this court discussed in Dring (on behalf of the Asbestos Victims Support Group) v Cape Intermediate Holdings Ltd [2019] UKSC 38; [2020] AC 629, paras 41 43, points towards disclosure.
+This court has emphasised the importance of avoiding incremental exceptions to the principle of open justice: Khuja v Times Newspapers Ltd [2017] UKSC 49; [2019] AC 161, paras 12 14 per Lord Sumption; In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593, para 29 per Lord Steyn, endorsing the warning of Lord Woolf MR in R v Legal Aid Board, Ex p Kaim Todner [1999] QB 966, 977.
+The arbitrators in the Halliburton/Chubb arbitration were defendants in the action but understandably took no part in the proceedings.
+The arbitrator, whose decisions are challenged in these proceedings, Mr Kenneth Rokison QC has a long established reputation for integrity and impartiality.
+But the protection of that reputation is not a sufficient ground for anonymity, particularly when the courts below have founded on that reputation in their reasoning.
+In any event, the challenge in this case involves no assertion of actual bias but relies entirely on an assertion of an objective appearance of bias.
+I am satisfied that there are no good grounds for maintaining the anonymity of the arbitrators in this appeal.
+Factual background
+BP Exploration and Production Inc (BP) was the lessee of the Deepwater Horizon drilling rig.
+Transocean Holdings LLC (Transocean) owned the rig and had contracted with BP to provide crew and drilling teams.
+Halliburton provided cementing and well monitoring services to BP in relation to the temporary abandonment and the plugging of the well.
+The blow out of the well caused extensive damage and loss of life.
+It resulted in numerous legal claims by the US Government and corporate and individual claimants against BP, Halliburton and Transocean.
+The US Government claimed civil penalties under federal statutes and the private claims for damages were pursued through a Plaintiffs Steering Committee (PSC).
+After a trial to determine liability, the Federal Court for the Eastern District of Louisiana in a judgment handed down on 4 September 2014 (the Federal Judgment) apportioned blame between the defendants as follows: BP 67%, Transocean 30%, and Halliburton 3%.
+Before the Federal Judgment was handed down, Halliburton settled the PSC claims against it by paying approximately US$1.1 billion.
+Following that judgment, Transocean settled the PSC claims for about US$212m and paid civil penalties to the US Government of about US$1 billion.
+Halliburton claimed against Chubb under the Policy but Chubb refused to pay Halliburtons claim, contending among other things that Halliburtons settlement was not a reasonable settlement and that Chubb had acted reasonably in not consenting to the settlement.
+Transocean made similar claims against its liability insurers, including Chubb.
+Chubb contested Transoceans claim against it on substantially the same grounds.
+Both Transocean and Halliburton had purchased liability insurance from Chubb on the Bermuda Form.
+The Bermuda Form policy was created in the 1980s to provide high excess commercial general liability insurance to companies operating in the United States after the market for such insurance collapsed in that country.
+Bermuda Form policies usually contain a clause providing for disputes to be resolved by arbitration.
+Bermuda Form arbitrations are ad hoc arbitrations which are not subject to the rules of an arbitral institution.
+Transocean and Halliburton had arranged liability insurance in layers and both had obtained cover for the top layer from Chubb.
+It appears that the material policy terms were the same.
+The Policy was governed by the law of New York.
+The Policy contained a standard arbitration clause which provided for arbitration in London by a tribunal of three arbitrators, one appointed by each party and the third by the two arbitrators so chosen.
+If the party appointed arbitrators could not agree on the appointment of the third arbitrator, the High Court in London was to make the appointment.
+The arbitrators were to deliver the award within 90 days of the conclusion of the hearing.
+There was no right of appeal from the award.
+Halliburton invoked the arbitration clause of the Policy and nominated Professor William W Park, Professor of Law at Boston University, USA, who is a very experienced arbitrator, as its party appointed arbitrator on 27 January 2015.
+Chubb nominated Mr John D Cole, an accomplished US insurance executive, counsel and arbitrator as its party appointed arbitrator.
+The nominated arbitrators were not able to agree on the appointment of the third arbitrator as chairman.
+As a result, after a contested hearing in the High Court in which each side put forward several candidates, on 12 June 2015 Flaux J appointed Mr Rokison, who was one of the arbitrators whom Chubb had proposed to the court, as the third arbitrator.
+Halliburtons main objection to Chubbs candidates, including Mr Rokison, was that they were English lawyers and the Policy was governed by the law of New York but it also objected to the appointment of Mr Rokison as chair of the tribunal because insurers had a practice of repeatedly appointing retired judges or QCs known to them, such as Mr Rokison, as party appointed arbitrators.
+Nonetheless, Halliburton did not appeal against that order.
+I refer to this Halliburton/Chubb reference to arbitration as reference 1.
+Before he expressed his willingness to be appointed, Mr Rokison disclosed to Halliburton and the court that he had previously acted as an arbitrator in several arbitrations in which Chubb was a party, including as a party appointed arbitrator nominated by Chubb, and that he was currently appointed as arbitrator in two pending references in which Chubb was involved.
+The High Court did not treat these appointments as an impediment to his appointment in reference 1.
+Halliburton served its statement of claim in reference 1 on 18 September 2015.
+Chubb served its statement of defence on 11 December 2015.
+In December 2015 Mr Rokison accepted appointment as an arbitrator by Chubb in relation to an excess liability claim by Transocean arising out of the same incident (reference 2).
+The appointment was made on behalf of Chubb by Clyde & Co, who were also Chubbs solicitors in reference 1.
+Within Chubb, the same manager, Mr Trimarchi, was responsible for monitoring the claims made by both Halliburton and Transocean and took the decision to refuse the claims in each case.
+Before accepting appointment by Chubb in reference 2, Mr Rokison disclosed to Transocean his appointment in reference 1 and in the other Chubb arbitrations which he had disclosed to Halliburton.
+Transocean did not object.
+But in an omission which is central to the disclosure issue in this appeal, Mr Rokison did not disclose to Halliburton his proposed appointment by Chubb in reference 2.
+In August 2016 Mr Rokison accepted appointment in another arbitration arising out of the Deepwater Horizon incident as a substitute arbitrator on the joint nomination of the parties in a claim made by Transocean against a different insurer on the same layer of insurance as the claim in reference 2.
+I refer to this as reference 3.
+Nobody disclosed this proposed appointment to Halliburton.
+This further omission also is a ground of the non disclosure claim in this appeal but the submissions on this appeal have focused more on the non disclosure of the appointment in reference 2.
+In references 2 and 3 there was a preliminary issue which was potentially dispositive of the claims if the tribunal decided in favour of the insurers.
+The issue was whether the fines and penalties which Transocean had paid to the US Government should be taken into account in the exhaustion of both the underlying layers of insurance and Transoceans self insured retention.
+This issue involved the construction of the relevant insurance policy on undisputed facts.
+The preliminary issue was heard separately in each of those references during November 2016.
+On 10 November 2016 Halliburton discovered Mr Rokisons appointment in references 2 and 3.
+Mr Thomas Birsic, an attorney at K & L Gates, Halliburtons US lawyers, wrote to Mr Rokison on 29 November 2016 to raise its concerns.
+He referred to the International Bar Association Guidelines on Conflicts of Interest in International Arbitration (the IBA Guidelines), which, he stated, imposed on an arbitrator a continuing duty of disclosure of potential conflicts of interest in accordance with the Orange List in those guidelines, and asked for confirmation of the fact of the two later appointments and an explanation of the failure to make prior disclosure of those appointments.
+Mr Rokison responded by email on 5 December 2016.
+He explained how he had come to be appointed in the later references.
+He explained, and both parties have accepted his explanation as truthful, that he had not disclosed those appointments to Halliburton, because it had not occurred to him at the dates of those appointments that he was under any obligation to do so under the IBA Guidelines.
+He stated that he appreciated, with the benefit of hindsight, that it would have been prudent for him to have informed Halliburton through its lawyers and apologised for not having done so.
+He explained that while the three references all arose out of the Deepwater Horizon incident, the roles which Halliburton and Transocean had played had been very different.
+His involvement in the two Transocean arbitrations had been confined to two two day hearings on the construction of the policy in which the only evidence had been about the circumstances in which the parties entered into the relevant insurance contracts.
+He stated his commitment to remain independent and impartial and acknowledged the importance of both parties in an arbitration sharing confidence that their dispute would be determined fairly on the evidence and the law without bias.
+He concluded: I do not believe that any damage has been done but, if your clients remain concerned, I would be prepared to consider tendering my resignation from my appointment in the two Transocean cases if the results of the determination of the preliminary issues of construction, which are likely to be issued shortly, do not effectively bring them to an end.
+Halliburtons lawyer responded by repeating his concerns about Mr Rokisons impartiality and calling for him to resign.
+But Chubb would not agree to his resignation which, in its assessment, would cause the proposed hearing of evidence in the arbitration to be postponed and thereby cause wasted costs and delay.
+Mr Rokison responded in an email of 15 December 2016 in which he stated that he sought to take into account his duty to both parties.
+He repeated his view that he had not breached the IBA Guidelines by a failure to disclose the later appointments but referred to his earlier statement that with hindsight he accepted that it would have been prudent to have made disclosure to avoid any sense of lack of transparency on his part.
+He repeated that in references 2 and 3 he had not learned anything about the facts of the incident which was not public knowledge.
+But, recognising that it was fundamentally important that both parties should have confidence in the impartiality of the arbitral tribunal and in particular its chairman, he stated that, if he could decide the matter in accordance with his own self interest, he would resign.
+Nonetheless, he owed duties to both parties to complete the task and would be in breach of his duties if he resigned in the face of strong opposition from one party.
+He therefore proposed that the parties should concentrate on trying to agree upon a mutually acceptable replacement chairman who would be available before the hearing in the arbitration (which was scheduled to start towards the end of January 2017).
+If they could so agree, he would gladly resign.
+If they could not, he would have to continue and leave it to the court to decide whether he should be removed.
+Halliburton responded by issuing a Claim Form in the High Court on 21 December 2016 seeking an order under section 24(1)(a) of the 1996 Act that Mr Rokison be removed as an arbitrator.
+Halliburton then raised further questions about the overlap between the references, to which Mr Rokison responded by email on 4 January 2017, stating that he was not aware that there were any common issues.
+Halliburtons lawyers in an email of 5 January 2017 asked Mr Rokison whether he had seen any document in which Chubb or any other respondent in references 2 or 3 had set out similar defences to those pleaded in reference 1.
+Mr Rokison did not reply to that enquiry.
+But on 10 January 2017 Chubb released to Halliburton the pleadings in reference 2 which revealed the substantial similarity in its defences which I mentioned in para 10 above, which were challenges to the reasonableness of the settlement which Transocean had negotiated.
+In its pleaded defence in reference 2, Chubb had also advanced, as an additional defence, the issue of construction of the policy which was the subject matter of the preliminary issue determination.
+Mr Justice Popplewell heard Halliburtons application in the High Court on 12 January 2017, in which Halliburton sought to have Mr Rokison replaced by Sir Stephen Tomlinson who had just retired from the Court of Appeal, and delivered a judgment, which I discuss below, on 3 February 2017, dismissing the application.
+The hearing in reference 1, which included the adducing of evidence and the making of legal submissions, took place between 27 January and 6 February 2017.
+On 1 March 2017 the tribunals in references 2 and 3 issued awards on the preliminary issues of policy construction, deciding them in favour of Chubb and the other insurer.
+The tribunals held that because the fines did not count towards the exhaustion of Transoceans self insured retention, Transocean could not claim an indemnity under the relevant layer of insurance.
+The awards brought both references to an end, without either tribunal having to consider questions as to the reasonableness of Transoceans settlement.
+On 5 December 2017 the tribunal in reference 1 issued its Final Partial Award on the merits, deciding in Chubbs favour.
+The award was signed by all three arbitrators, although Professor Park, the arbitrator whom Halliburton had appointed, qualified his signature of the award in Separate Observations.
+Professor Park stated that he had signed the award to confirm his participation but that he was unable to join in the award as a result of his profound disquiet about the arbitrations fairness.
+He explained that: arbitrators who decide cases cannot ignore the basic fairness of proceedings in which they participate.
+One side secured appointment of its chosen candidate to chair this case, over protest from the other side.
+Without any disclosure, the side that secured the appointment then named the same individual as its party selected arbitrator in another dispute arising from the same events.
+The lack of disclosure, which causes special concern in the present fact pattern, cannot be squared with the parties shared ex ante expectations about impartiality and even handedness.
+The other arbitrators, Mr Rokison and Mr Cole, responded to the separate observations, stating that they did not regard them as being part of the tribunals award so as to render it a majority award.
+This was because those observations did not contain any opinion dissenting from any part of the award, which contained findings of fact, statements of applicable law, the process of reasoning and the final conclusions drawn from that reasoning.
+It appears from Chubbs written case and Mr Birsics second witness
+statement that Halliburton appointed Professor Park as its party appointed arbitrator in three references against different insurers in insurance claims arising out of the Deepwater Horizon disaster, without formal disclosure.
+But K & L Gates suggest, in Mr Birsics second witness statement, that their proposal, which they made when they requested the arbitration and nominated Professor Park, that the arbitrations be consolidated revealed the multiple nominations.
+Mr Birsic also suggests that the fact that Professor Park was a party appointed arbitrator rather than a chair or umpire is a significant distinction from Mr Rokisons position.
+I will return to the question whether that distinction is legally relevant in English law in my discussion below.
+Halliburtons pleaded case
+In its claim Halliburton sought the removal of Mr Rokison as arbitrator in reference 1 and the appointment of another arbitrator to chair the tribunal in his place.
+The grounds for the claim were that circumstances existed that gave rise to justifiable doubts as to his impartiality and in particular (i) his acceptance of the appointments by Clyde & Co in references 2 and 3 and his failure to notify Halliburton or give it the opportunity to object and (ii) his offer to resign from the tribunal in reference 1 but Chubbs refusal to permit him to do so.
+The judgments at first instance and in the Court of Appeal
+In his judgment of 3 February 2017 ([2017] EWHC 137 (Comm); [2017] 1 WLR 2280) Popplewell J addressed the three elements of Mr Rokisons conduct which were said to give rise to the appearance of bias.
+The first was his acceptance of the appointments in the Transocean arbitrations in references 2 and 3.
+The judge rejected the contention that the arbitrator would derive a secret benefit in the form of remuneration which he would receive from the arbitrations.
+In English law, arbitrators were under a duty to act independently and impartially and owed no allegiance to the party which appointed them.
+This principle was enshrined in section 33 of the 1996 Act.
+He also rejected the contention that the overlap between the references was a concern because the arbitrator would learn information in the Transocean references which was relevant to the issues in reference 1 and that information would be available to Chubb but not to Halliburton.
+He observed that it was a regular feature of international arbitration that the same underlying subject matter gives rise to more than one claim and more than one arbitration without identity of parties.
+It was common for arbitrators with the relevant expertise to sit in different arbitrations arising out of the same factual circumstances or subject matter.
+It was desirable that arbitrators be able to do so for three reasons.
+First, arbitration was a consensual process allowing parties to appoint their chosen arbitrators in accordance with the procedures set out in their contract.
+Secondly, the parties to an arbitration often wished their tribunal to have particular knowledge and expertise in the law and practices of the businesses and market in which the parties operated.
+Thirdly, the 1996 Act sought speedy finality, which was served when the tribunal was already familiar with the background to and uncontroversial aspects of the subject matter of the dispute.
+The judge considered that as a general rule the fact that an arbitrator may be involved in an arbitration between party A and party B, whose subject matter was identical to that in an arbitration between party B and party C did not preclude him or her from sitting on both tribunals.
+This was because an arbitrator in English law was required to decide the case by reference to the material available to the parties to the particular reference: section 33 of the 1996 Act.
+He concluded his consideration of element 1 in these terms (para 29): The informed and fair minded observer would not therefore regard [Mr Rokison] as unable to act impartially in the reference between [Halliburton] and [Chubb] merely by virtue of the fact that he might be an arbitrator in other references arising out of the incident, and might hear different evidence or argument advanced in another such reference.
+The objective and fair minded assessment would be that his experience and reputation for integrity would fully enable him to act in accordance with the usual practice of London arbitrators in fulfilling his duties under section 33 by approaching the evidence and argument in the [Halliburton] reference with an open mind; and in deciding the case, in conjunction with the other members of the tribunal, in accordance with such material, with which [Halliburton] will have a full and fair opportunity to engage.
+Popplewell J also rejected a submission that the chairman of a tribunal had an enhanced duty to maintain demonstrable impartiality as the ultimate guarantor of fairness and impartiality.
+This submission, he opined, misunderstood the English law of arbitration which required all arbitrators, including party appointed arbitrators, to maintain the same high standards of impartiality.
+The judge did not think that there was a risk of the tribunal in reference 1 having to address issues which arose in references 2 and 3 if the preliminary issues in the latter references were decided in the insurers favour.
+If the tribunals determinations of the preliminary issues in those references went against the insurers, there was very little risk of overlap because (i) the issue of the reasonableness of Halliburtons settlement was legally and factually distinct from that of Transoceans settlement as the two companies had played different roles on the rig, were alleged to have committed different breaches of duty and had reached different settlements and (ii) Mr Rokison had offered to resign from the Transocean references if the preliminary issue were resolved against the insurers.
+On element 2, which was the alleged failure to disclose the appointments to Halliburton, the judge held that, because of his conclusion on element 1 that the circumstances did not give rise to any justifiable concerns about the arbitrators impartiality, there was nothing which had to be disclosed.
+Even if the disclosure ought to have been made, the failure did not give rise to a real possibility of apparent bias against Halliburton because Mr Rokisons explanation in correspondence, which was not challenged, was that it did not occur to him that he was under a duty to do so.
+Even if that honest belief were mistaken, it did not raise a real possibility of apparent bias.
+The judge also rejected element 3, which was Mr Rokisons response to Halliburtons challenge to his impartiality.
+Popplewell J discussed and rejected each of the complaints about that response, commenting that Mr Rokison had dealt with the challenge, which the judge said had included a grossly offensive suggestion, in a courteous, temperate and fair way which demonstrated his even handedness.
+Halliburton sought and obtained permission to appeal from Popplewell J and renewed its challenge on appeal to the Court of Appeal in a hearing on 7 February 2018.
+The Court of Appeal (Sir Geoffrey Vos C, Simon and Hamblen LJJ) dismissed the appeal in a judgment dated 19 April 2018 ([2018] EWCA Civ 817; [2018] 1 WLR 3361).
+In the Court of Appeal Halliburton did not challenge Popplewell Js summary of the relevant legal principles in para 16 of his judgment but suggested, and the court accepted, that, in assessing whether there was a real possibility that the tribunal was biased, regard should be had to the risk of unconscious bias.
+The question for the Court of Appeal was the application of those principles to the facts of the case.
+The first issue which the Court of Appeal addressed was the same issue as issue 1 in this appeal, namely whether and to what extent an arbitrator may accept appointments in multiple references concerning the same or overlapping subject matter with only one common party without thereby giving rise to the appearance of bias.
+The court recognised that the existence of appointments in such related arbitrations could cause the party which was not involved in the related arbitrations to be concerned and could be a good reason for a judge to decline to appoint a person as an arbitrator in the exercise of powers under section 18 of the 1996 Act in the face of an objection by that party.
+But the court held that the appointment of a common arbitrator did not justify the inference of apparent bias; something more of substance was required.
+Applying those conclusions to the facts of the case the Court of Appeal held that the degree of overlap between reference 1 and references 2 and 3 was in fact very limited.
+The latter references were decided on the preliminary issue.
+As a result, the question of the reasonableness of the settlement by Transocean and the reasonableness of the insurers withholding of consent to that settlement did not arise.
+In any event, the circumstances were different: Halliburton settled before the Federal Judgment and Transocean after that judgment had allocated responsibility for the incident between the three parties.
+The fact that an arbitrator obtained a financial benefit from appointment to an arbitral tribunal was not disqualifying; otherwise objection could be taken to every party appointed arbitrator.
+The second issue which the Court of Appeal addressed was to identify the circumstances in which an arbitrator should make disclosure of matters which may give rise to justifiable doubts as to his or her impartiality.
+The court, citing extensive case law in support, stated (para 56): Under the common law, judges should disclose facts or circumstances which would or might provide the basis for a reasonable apprehension of lack of impartiality.
+When a judge was aware of a matter which could arguably be said to give rise to a real possibility of bias and disclosed that matter, such disclosure enabled parties to consider the disclosure and decide whether there was no legitimate problem or to make submissions to the judge or to address the potential problem by waiver.
+The judge in turn could decide in the light of those submissions whether to withdraw from the case.
+The court stated that the test for apparent bias applied equally to arbitral tribunals and the practical advantages of early disclosure were just as important.
+The court held that the question whether there should be disclosure was to be decided prospectively, as it depended on the prevailing circumstances at that time when the disclosure should have been made.
+When deciding whether circumstances existed that would or might lead to the conclusion that there was a real possibility of bias, with the result that those circumstances needed to be disclosed, a court should not have regard to matters known only at a later stage.
+A failure to make disclosure when it should have been made was itself a factor which should be taken into account when considering whether there was a real possibility that the arbitrator was biased.
+But, the court held, non disclosure of a matter which should have been disclosed but did not on examination give rise to justifiable doubts as to the arbitrators impartiality could not in and of itself justify an inference of apparent bias; something more was required.
+Applying those conclusions to the facts of the case, the Court of Appeal recognised that in the context of international commercial arbitration it was good practice to make disclosure where a party had such concerns.
+That practice combined with the other factors, such as the degree of overlap between the references and the nature of other connections, might have been argued to combine to give a basis for a reasonable apprehension of lack of impartiality.
+On that basis, the court disagreed with the judge and held that Mr Rokison ought as a matter of law to have made disclosure to Halliburton at the time of his appointments in references 2 and 3.
+Nonetheless, the court agreed with the judges overall conclusion that the fair minded and informed observer, having considered the facts, would not conclude that there was a real possibility that Mr Rokison was biased.
+In reaching that conclusion the court took account of the following factors: (i) the non disclosed circumstance did not of itself justify an inference of apparent bias, (ii) the failure to disclose was accidental and not deliberate, (iii) there was only a limited degree of overlap between the references, (iv) mere oversight in such circumstances would not give rise to justifiable doubts as to impartiality, and (v) there was no substance in Halliburtons criticism of Mr Rokisons conduct after it challenged the non disclosure.
+The Court of Appeal therefore dismissed the appeal.
+Halliburtons case and the interventions
+Halliburton renews its challenges before this court and founds on concerns expressed by LCIA, ICC and CIArb that the Court of Appeals judgment is out of step with internationally accepted standards and practices.
+Halliburton in its written case confirms that it does not suggest that Mr Rokison was guilty of any deliberate wrongdoing or actual bias.
+Its case is one of apparent unconscious bias and it founds on five points: (i) he accepted the benefit of a paid appointment on Chubbs nomination when he was sitting on an arbitral tribunal in reference 1; (ii) in so doing, he gave Chubb the unfair advantage of being a common party to two related arbitrations with a joint arbitrator while Halliburton was ignorant of the proceedings in reference 2 and thus unaware whether and to what extent he would be influenced in reference 1 by the arguments and evidence in reference 2; (iii) Chubb would be able to communicate with him in reference 2, for example by its submissions and the evidence it led, on matters which might be relevant to reference 1 and would know of his responses to those communications while Halliburton would not even know that they had occurred; (iv) he failed to disclose his appointment to Halliburton and thereby prevented it from forming its own view as to whether it might lead to unfairness and from either making submissions to the tribunal in reference 1 or otherwise proposing or taking practical steps to mitigate the unfairness; and (v) he did not pay proper regard to Halliburtons interest in the fairness of the procedure.
+Under point (v) Halliburton also suggests that Mr Rokison had regard only to what he and Chubb both wanted, which was his appointment to sit as arbitrator in reference 2.
+In my view, the evidence before Popplewell J, which I have summarised above, clearly negatives that gloss but that negation does not wholly remove the force of point (v).
+Halliburton submits that English law does not require a party to an arbitration to have its disputes resolved by someone who has acted in this manner and argues that the fair minded and informed observer would see such conduct as giving rise to justifiable doubts as to the arbitrators impartiality.
+LCIA expresses concern that the tests set by the Court of Appeal were not sufficiently strict compared with international norms.
+The common law test of bias applies, but in applying it the court must take account of the context of the arbitration and the differences between arbitration and litigation.
+Depending on the facts of a particular arbitration, the circumstances described in the first issue in para 2 above (ie appointments in multiple references concerning the same or overlapping subject matter with only one common party) can give rise to the appearance of bias.
+It will all depend on the facts.
+A failure to disclose can give rise to that appearance even if the fact or circumstance which should have been disclosed would not of itself give rise to apparent bias.
+The arbitrator in considering what needs to be disclosed is under a duty to make reasonable enquiries whether there are circumstances which may give rise to doubts as to his or her impartiality.
+ICC also questions the approach of the Court of Appeal and submits that the fact of multiple overlapping appointments with only one or some common parties concerning the same or overlapping subject matter can, depending on the circumstances, give rise to reasonable doubts as to the arbitrators impartiality.
+On the second issue (disclosure) ICC opines that in English law a failure to disclose multiple appointments by a common party in overlapping references can of itself give rise to justifiable doubts as to the arbitrators impartiality.
+CIArb also submits (a) that a failure by an arbitrator to disclose any facts and circumstances which might give rise to justifiable doubts as to that arbitrators impartiality may in and of itself give rise to justifiable doubts as to his or her impartiality, and (b) that the acceptance by an arbitrator of multiple appointments in related references without full disclosure to all parties may, without more, give rise to justifiable doubts as to impartiality.
+CIArb also, unusually, expresses its views on the application of the tests to the facts of this case.
+The other interveners are GAFTA, which is concerned with agricultural commodities arbitration and which trains and certifies arbitrators who must have extensive practical experience in the relevant trades, and LMAA, which is an association of arbitrators concerned with shipping and trade arbitration and which produces arbitration terms and procedures widely used for maritime arbitration in London.
+GAFTA explains that disputes often arise in chain or string supply contracts and that arbitrations in such contracts, which often involve common issues of law or fact, are regularly referred to the same arbitrator or arbitrators.
+GAFTAs Rules and Code of Conduct for Qualified Arbitrators & Qualified Mediators and General Code of Conduct Applicable to All Members do not require its arbitrators to disclose multiple appointments in relation to the same event or issue, which are an intrinsic and necessary part of GAFTA arbitrations.
+GAFTA also provides with its submission a report from the Management Committee of ARIAS (UK), the Insurance and Reinsurance Arbitration Society, describing practice in treaty reinsurance arbitrations, which are conducted by a limited pool of specialist arbitrators and often involve multiple disputes about the same subject matter.
+ARIAS (UK) opines that practitioners in its field are well aware of the possibility of overlapping appointments and have not expected such appointments to be disclosed.
+LMAA similarly explains that multiple appointments are relatively common under their procedures because they frequently arise out of the same incident.
+Speed and simplicity are necessary because of the tight limitation periods in maritime claims.
+There is a relatively small pool of specialist arbitrators whom parties use repeatedly.
+LMAA terms give arbitral tribunals the power to order concurrent hearings where two or more arbitrations raise common issues of fact or law without requiring the consent of the parties.
+Disclosure of multiple appointments should be required only when it is arguable that the matters to be disclosed give rise to the appearance of bias.
+LMAA points out that the IBA Guidelines recognise that in certain types of arbitration no disclosure of multiple appointments is required if parties are familiar with such custom and practice (see para 133 below).
+GAFTA and LMAA submit that in their fields of activity the mere fact of appointment in arbitrations with overlapping subject matter but without identity of parties does not give rise to any appearance of bias and is a feature of arbitrations which parties in their fields of operation accept.
+They submit that the court should respect such party autonomy and that there is no need to impose an obligation of disclosure in their fields of operation.
+Chubb defends the judgments of the courts below.
+But Chubb also argues that the Court of Appeal was wrong to conclude that Mr Rokison was under a legal duty to disclose his appointments in references 2 and 3 because it submits that an arbitrator is only obliged to disclose circumstances which the fair minded and informed observer would regard as giving rise to a real possibility of bias.
+The disclosure of circumstances which might give rise to the possibility of bias was good practice but was not an obligation in law.
+A failure to disclose in accordance with good practice will be a factor to which the fair minded and informed observer will have regard in determining whether there is justifiable doubt as to an arbitrators impartiality.
+Discussion
+The 1996 Act is based on the principle of party autonomy and aims to limit the role of the courts to the protection of the public interest.
+Section 1 of the 1996 Act provides that the provisions of Part I (sections 1 84): are founded on the following principles, and shall be construed accordingly (a) the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense; (b) the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest; (c) in matters governed by this Part the court should not intervene except as provided by this Part.
+The 1996 Act is not a complete code of the law of arbitration but allows the judges to develop the common law in areas which the Act does not address.
+Against that background, it is necessary to consider, first, the duty of impartiality in the context of arbitration before addressing, secondly, whether an arbitrator is under a legal duty to disclose particular matters, thirdly, how far the obligation to respect the privacy and confidentiality of an arbitration constrains his or her ability to make disclosure, and fourthly, whether a failure to disclose such matters demonstrates a lack of impartiality.
+I also address the times at which (a) the duty of disclosure and (b) the possibility of bias fall to be assessed.
+(i) The duty of impartiality
+Impartiality has always been a cardinal duty of a judge and an arbitrator.
+Thus, the first of the principles set out in section 1 of the 1996 Act is that disputes should be resolved fairly by an impartial tribunal.
+The duty is now enshrined within section 33 of the 1996 Act, which provides: (1) The tribunal shall (a) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, and (b) adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined. (2) The tribunal shall comply with that general duty in conducting the arbitral proceedings, in its decisions on matters of procedure and evidence and in the exercise of all other powers conferred on it.
+Principle (c) in section 1 of the 1996 Act (para 47 above) seeks to limit the intervention of the court in arbitral proceedings.
+One such power of intervention arises in section 24(1) of the 1996 Act which provides (so far as relevant): A party to arbitral proceedings may (upon notice to the other parties, to the arbitrator concerned and to any other arbitrator) apply to the court to remove an arbitrator on any of the following grounds: that circumstances exist that give rise to (a) justifiable doubts as to his impartiality; that he has refused or failed (d) (i) properly to conduct the proceedings, and that substantial injustice has been or will be caused to the applicant.
+I will return to consider section 24(1)(a) later in this judgment but note at this stage (i) that by the use of the present tense of the verb exist the court is directed to the circumstances as they exist at the time at which it hears the application for removal of the arbitrator and (ii) that, in contrast with section 24(1)(d), the applicant does not have to show that substantial injustice has been or will be caused to it.
+A party to arbitral proceedings is also empowered by section 68 of the 1996 Act to challenge an award in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award and such serious irregularity includes a failure by the tribunal to comply with section 33 of the Act.
+In this appeal the court is concerned with an allegation of apparent bias.
+We are not concerned with any disqualifying interest in the outcome of the arbitration nor are we required to make windows into mens souls in search of an animus against a party or any other actual bias, whether conscious or unconscious.
+No such allegation is made against Mr Rokison.
+We are concerned only with how things appear objectively.
+There is no disagreement as to the relevant test.
+As Lord Hope of Craighead stated in Porter v Magill [2001] UKHL 67; [2002] 2 AC 357, para 103: The question is whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.
+The courts have given further guidance on the nature of this judicial construct, the fair minded and informed observer (to whom in this judgment I also refer as the objective observer).
+Thus, in Helow v Secretary of State for the Home Department [2008] UKHL 62; [2008] 1 WLR 2416, Lord Hope (paras 1 3) explained that the epithet fair minded means that the observer does not reach a judgment on any point before acquiring a full understanding of both sides of the argument.
+The conclusions which the observer reaches must be justified objectively and the real possibility test ensures the exercise of a detached judgment.
+He continued: Then there is the attribute that the observer is informed.
+It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant.
+She is the sort of person who takes the trouble to read the text of an article as well as the headlines.
+She is able to put whatever she has read or seen into its overall social, political or geographic context.
+She is fair minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment. (Emphasis added) I have added the emphasis in this citation because the context in which the test falls to be applied in this appeal is of particular importance.
+Finally, in my consideration of the characteristics of the objective observer, I adopt Kirby Js neat phrase in Johnson v Johnson (2000) 201 CLR 488, para 53, which members of the House of Lords approved in Helow (above, Lord Hope para 2, Lord Mance para 39) that the fair minded and informed observer is neither complacent nor unduly sensitive or suspicious.
+This objective test of the appearance of bias is similar to the test of justifiable doubts which is adopted in the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration 1985 (as amended in 2006) article 12(2) (the UNCITRAL Model Law), the IBA Guidelines (General Standard 2(c)) and article 10.1 of the LCIA Arbitration Rules (2014).
+It is not necessary to determine whether the tests as to the nature of the doubts in the UNCITRAL Model Law, the IBA Guidelines and the LCIA Rules are precisely the same as those of English law.
+The important point is that the test in English law, involving the fair minded and informed observer, requires objectivity and detachment in relation to the appearance of bias.
+The objective test of the fair minded and informed observer applies equally to judges and all arbitrators.
+There is no difference between the test in section 24(1)(a) of the 1996 Act, which speaks of the existence of circumstances that give rise to justifiable doubts as to [the arbitrators] impartiality and the common law test above.
+But in applying the test to arbitrators it is important to bear in mind the differences in nature and circumstances between judicial determination of disputes and arbitral determination of disputes.
+First, judges resolve civil disputes in courts which are, as a general rule, open to the public; by contrast arbitration is a consensual form of dispute resolution which is generally conducted in private and of which there is very limited public oversight.
+A person who is not a party to an arbitration may know nothing about the arbitration and may have no ready means of discovering its existence, the evidence adduced and the legal arguments advanced at it, or the award made.
+Arbitrators and the parties to an arbitration are generally under a duty of privacy and confidentiality which militates against such discovery, in the absence of disclosure.
+That puts a premium on frank disclosure.
+Russell (1880) 14 Ch D 471, 474, Sir George Jessel MR said of arbitration: As a rule, persons enter into these contracts with the express view of keeping their quarrels from the public eyes, and of avoiding that discussion in public, which must be a painful one, and which might be an injury even to the successful party to the litigation, and most surely would be to the unsuccessful.
+In English law arbitration is, as a general rule, a private process.
+In Russell v It is because arbitrations are private that arbitrators have no power to order concurrent hearings without the consent of the parties: Oxford Shipping Co Ltd v Nippon Yusen Kaisha: The Eastern Saga [1984] 2 Lloyds Rep 373; [1984] 3 All ER 835.
+The 1996 Act says nothing about privacy or confidentiality.
+But that was a deliberate omission.
+In its report on the Arbitration Bill (February 1996), paras 10 17, the Departmental Advisory Committee on Arbitration Law (the DAC) recorded that users of commercial arbitration in England place much importance on privacy and confidentiality as essential features of English arbitrations but, recognising that there was uncertainty as to the breadth and existence of certain exceptions to those principles, recommended that there be no statutory formulation of those principles but that the courts should be left to develop the law on a pragmatic case by case basis.
+I will consider the principles of privacy and confidentiality further when I discuss the duty of disclosure in paras 70 116 below.
+Secondly, unlike a judge who decides issues of fact and law at first instance and from whose decisions the parties usually have a right of appeal, an arbitrator is not subject to appeals on issues of fact and often not on issues of law.
+By contrast with a first instance judge, there are very limited powers of review of the decision of an arbitral tribunal.
+Thirdly, a judge is the holder of a public office, is funded by general taxation and has a high degree of security of tenure of office and therefore of remuneration.
+An arbitrator is nominated to act by one or both of the parties to the arbitration either directly or by submitting names to the appointing body, whether an institution or the court, for appointment.
+The arbitrator is remunerated by the parties to the arbitration in accordance with the terms set out in the reference, and often is ultimately funded by the losing party.
+He or she is appointed only for the particular reference and, if arbitral work is a significant part of the arbitrators professional practice, he or she has a financial interest in obtaining further appointments as arbitrator.
+Nomination as an arbitrator gives the arbitrator a financial benefit.
+There are many practitioners whose livelihood depends to a significant degree on acting as arbitrators.
+This may give an arbitrator an interest in avoiding action which would alienate the parties to an arbitration, for example by assertive case management against the wishes of the legal teams who are presenting their clients cases.
+It also may give those legal teams an incentive to be more assertive of their sides interests in the conduct of the arbitration than might be the case in a commercial court.
+Fourthly, people who are appointed as arbitrators include lawyers and also other professionals and experts in a wide range of business activities, and trades.
+Some, like the arbitrators in this case, may have very extensive experience of arbitration practice while others may have very limited involvement in and experience of arbitration.
+Moreover, arbitrators in international arbitration come from many jurisdictions and legal traditions and may have divergent views on what constitutes ethically acceptable conduct.
+Fifthly, it follows from the private nature of most arbitrations that where there are multiple references concerning the same or overlapping subject matter in which the same arbitrator is a member of the tribunal, the party which is not common to the various arbitrations has no means of informing itself of the evidence led before and legal submissions made to the tribunal (including the common arbitrator) or of that arbitrators response to that evidence and those submissions in the arbitrations in which it is not a party.
+It is not unusual in commercial litigation for an interested party to instruct its lawyer to sit in on a court case involving other parties which may have a bearing on its interests in a separate action.
+Such an expedient is generally not available in arbitration.
+Sixthly, in the field of international arbitration there are differing understandings of the role and obligations of the party appointed arbitrator.
+There has been a lively debate as to the justification for party appointed arbitrators and their role.
+See, for example, the concerns about partisanship expressed by Professor Jan Paulsson, Moral Hazard in International Dispute Resolution (2010) 25 ICSID Review, Foreign Investment Law Journal, p 339 and Professor Albert Jan van den Berg, Dissenting Opinions by Party Appointed Arbitrators in Investment Arbitration in Looking to the Future: Essays on International Law in Honor of W Michael Reisman, ed Mahnoush Arsanjani et al (Brill Academic 2010) and the defence of party appointed arbitrators by Judge Charles N Brower and Charles B Rosenberg, The Death of the Two Headed Nightingale: Why the Paulsson van den Berg Presumption that Party Appointed Arbitrators are Untrustworthy is Wrongheaded, (2013) Arbitration International, Vol 29 No 1, pp 7 44.
+Other experienced commentators have suggested that, without compromising his or her independence and impartiality, the party appointed arbitrators role involves a sensitivity to the appointing partys legal, cultural and commercial background and its position in the arbitration (Born, International Commercial Arbitration, 2nd ed (2014), p 1808) and making sure that the arbitral tribunal properly understands the case of the appointing party (Redfern and Hunter, Law and Practice of International Arbitration, 6th ed (2015), para 4.30).
+In his written case, Lord Grabiner, who appears on behalf of Halliburton, goes further and refers to the selection of an arbitrator by a party as forum shopping.
+He quotes from an article by Professor Martin Hunter, Ethics of the International Arbitrator, ASA Bulletin, Kluwer Law International 1986, Vol 4 Issue 4, pp 173 196, at p 189, in which the author draws a distinction between impartiality and neutrality and states: Indeed, when I am representing a client in an arbitration, what I am really looking for in a party nominated arbitrator is someone with the maximum predisposition towards my client, but with the minimum appearance of bias.
+In arbitrations where the parties have, or one party has, an expectation that the party nominated arbitrator will be pre disposed towards it, it is perceived that the person chairing the tribunal, whether appointed by the party nominated arbitrators jointly or by an appointing institution or the court, has a particular role in making sure that the tribunal acts fairly and impartially.
+Notwithstanding this perception of the reality in some quarters, a party appointed arbitrator in English law is expected to come up to precisely the same high standards of fairness and impartiality as the person chairing the tribunal.
+Popplewell J correctly summarised the position in English law, and I would venture to say also in Scots law, when he stated in his judgment (para 19): [T]he duty to act independently and impartially involves arbitrators owing no allegiance to the party appointing them.
+Once appointed they are entirely independent of their appointing party and bound to conduct and decide the case fairly and impartially.
+They are not in any sense a representative of the appointing party or in some way responsible for protecting or promoting that partys interests.
+As Popplewell J went on to state, the duty on all arbitrators to act fairly and impartially is enshrined in section 33 of the 1996 Act.
+Lord Grabiner submits that London is the premier seat for international arbitration.
+He points to a survey of international arbitration which Queen Mary University of London carried out in 2018 which reveals that the main reasons why parties in international arbitration choose to arbitrate in England are the reputation of London and that the English legal system guarantees neutrality and impartiality.
+It is therefore important that English law upholds rules which support the integrity of international arbitration.
+In applying the test of the fair minded and informed observer it would be wrong to have regard to the characteristics of the parties to the arbitration, including the fact that one or more were foreign parties, as Popplewell J stated in para 16(6) of his judgment, referring to the judgment of Flaux J in A v B [2011] EWHC 2345 (Comm); [2011] 2 Lloyds Rep 591, paras 23 24; see also ASM Shipping Ltd of India v TTMI Ltd of England [2005] EWHC 2238 (Comm); [2006] 1 Lloyds Rep 375, para 39(2) per Morison J.
+The requirement in English law that all arbitrators, whether party appointed or independently appointed, comply with the same high standards of impartiality, appears to be increasingly widely accepted as the legal norm internationally: see the article by the Chief Justice of Singapore, Sundaresh Menon, Adjudicator, advocate or something in between? Coming to terms with the role of the party appointed arbitrator, Arbitration 2017, 83(2), pp 185 202.
+But this does not negate the fact that in some quarters there are understandings of the arbitral process which appear not to accept that requirement.
+Further, some legal systems take a different view and accept the proposition that a party appointed arbitrator has a special role in relation to his or her appointing party.
+For example, in Certain Underwriting Members of Lloyds of London v Florida (2018) 892 F 3d 501; 2018 US App Lexis 15377 the United States Court of Appeals for the Second Circuit addressed a case in which a party sought to vacate an arbitral award on the ground of evident partiality because of a failure by a party appointed arbitrator on a tri partite panel to disclose close business relationships with directors and employees of the party appointing him.
+The court drew a distinction between party appointed arbitrators on the one hand and neutral arbitrators on the other.
+It held that in the case of a party appointed arbitrator, an undisclosed relationship with the appointing party constituted evident partiality only if the relationship violated the contractual requirement of disinterestedness or prejudicially affected the award.
+The court recognised that in insurance and reinsurance arbitrations the parties sought arbitral panels with expertise and that it was common to have repeat players who had connections with the industry.
+This understanding applied in relation to both party appointed arbitrators and neutral arbitrators or umpires.
+Beyond that, recognising that party appointed arbitrators were expected to espouse the view or perspective of the appointing party and serve as de facto advocates, it considered that party appointment involved various degrees of partiality in contrast with the neutral arbitrator.
+It is clear from the judgment (p 509) that several circuits draw this distinction between party appointed and neutral arbitrators.
+Closer to home, in this case Mr Birsic sought in his second witness statement to the High Court to distinguish Mr Rokisons obligations as the neutral chair of the tribunal and those of Professor Park as a party appointed arbitrator (para 27 above).
+When such ideas are in play the parties in reality put a particularly heavy responsibility on the arbitrator who is not a party appointee and who chairs the tribunal.
+The courts in applying the test of the fair minded and informed observer would credit that objective observer with the knowledge both that some, maybe many, parties and some, maybe many, arbitrators in international arbitrations have that understanding and that there is a debate within the arbitration community as to the precise role of the party appointed arbitrator and the compatibility of that role with the requirement of impartiality.
+To do so is not to measure apparent bias by reference to the subjective understanding of the parties to a particular arbitration and thereby to abandon the objective assessment which the fair minded and informed observer entails.
+Nor is it an acceptance that there is any difference in English law as to the obligation of impartiality owed by different types of arbitrator, for there is none.
+It is to recognise the context in which the objective observers judgement as to apparent bias is being made.
+The objective observer takes account of how some parties and their appointees conduct themselves in such arbitrations and of the debate within the arbitration community as to the role of the party appointed arbitrator when considering whether mixing and matching (as counsel put it) the roles as party appointee in one reference and chairman of an arbitral tribunal in a related reference would pose a risk to the arbitrators impartiality in either case.
+The fair minded and informed observer would also be aware that in international arbitration the parties to an arbitration and their legal advisers may often have only limited knowledge of the reputation and experience of a professional who is appointed by an institution or by the court to chair their arbitration.
+While many parties and their advisers who are engaged in high value international arbitrations devote considerable resources to researching the background of people who might be suitable for selection as party appointed arbitrators or as nominees for third party appointment, there is no basis for assuming that that practice is universal.
+The professional reputation and experience of an individual arbitrator is a relevant consideration for the objective observer when assessing whether there is apparent bias as an established reputation for integrity and wide experience in arbitration may make any doubts harder to justify.
+But the weight which the fair minded and informed observer should give to that consideration will depend upon the circumstances of the arbitration and whether, objectively and as a generality, one could expect people who enter into references of that nature to be informed about the experience and past performance of arbitrators.
+In the context of many international arbitrations, it is likely to be a factor of only limited weight.
+The weight of that consideration may also be reduced if the circumstances give rise to a material risk of unconscious bias on the part of a person of the utmost integrity: Almazeedi v Penner [2018] UKPC 3, para 1 per Lord Mance.
+On other hand, the objective observer is alive to the possibility of opportunistic or tactical challenges.
+Parties engage in arbitration to win.
+Their legal advisers present their cases to the best of their ability, and this pursuit can include making tactical objections or challenges in the hope of having their dispute determined by a tribunal which might, without any question of bias, be more predisposed towards their view or simply to delay an arbitral determination.
+The courts are alive to similar tactical objections in litigation.
+In Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, the Court of Appeal (Lord Bingham of Cornhill CJ, Lord Woolf MR and Sir Richard Scott V C) addressed the circumstances in which judicial office holders may be required to disqualify themselves from hearing a case.
+The court stated (para 25) that it would be dangerous and futile to attempt to define or list the factors which may or may not give rise to what we now describe as a real possibility of bias; [e]verything will depend on the facts, which may include the nature of the issue to be decided.
+The court stated (para 21): If objection is then made, it will be the duty of the judge to consider the objection and exercise his judgment upon it.
+He would be as wrong to yield to a tenuous or frivolous objection as he would to ignore an objection of substance.
+The court went on (para 22) to cite with approval dicta of Mason J in the High Court of Australia in In re JRL, Ex p CJL (1986) 161 CLR 342, 352: Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
+An arbitrator when deciding to accept a reference is not under the same obligation as a judge to hear a case but, having taken up the reference, the arbitrator may reasonably feel under an obligation to carry out the remit unless there are substantial grounds for self disqualification.
+Similarly, a court, when asked to remove an arbitrator, needs to be astute to see whether the ground of real possibility of bias is made out.
+Summarising the position so far, the English courts in addressing an allegation of apparent bias in an English seated arbitration will (i) apply the objective test of the fair minded and informed observer and (ii) have regard to the particular characteristics of international arbitration which I have discussed in paras 56 to 68.
+Those characteristics highlight the importance of proper disclosure as a means of maintaining the integrity of international arbitration, a topic to which I now turn. (ii) Disclosure a)
+The role of disclosure
+An arbitrator, like a judge, must always be alive to the possibility of apparent bias and of actual but unconscious bias.
+The possibility of unconscious bias on the part of a decision maker is known, but its occurrence in a particular case is not.
+The allegation, which is advanced in this case, of apparent unconscious bias is difficult to establish and to refute.
+One way in which an arbitrator can avoid the appearance of bias is by disclosing matters which could arguably be said to give rise to a real possibility of bias.
+Such disclosure allows the parties to consider the disclosed circumstances, obtain necessary advice, and decide whether there is a problem with the involvement of the arbitrator in the reference and, if so, whether to object or otherwise to act to mitigate or remove the problem: see Almazeedi (above) para 34; Davidson v Scottish Ministers (No 2) [2004] UKHL 34; 2005 1 SC (HL) 7.
+In the latter case, Lord Hope of Craighead stated (para 54): [T]he best safeguard against a challenge after the event, when the decision is known to be adverse to the litigant, lies in the opportunity of making a disclosure before the hearing starts.
+That is the proper time for testing the tribunals impartiality.
+Fairness requires that the quality of impartiality is there from the beginning, and a proper disclosure at the beginning is in itself a badge of impartiality.
+That statement mutatis mutandis applies to the arbitrator as much as to the judge.
+In Davidson (above, para 19) Lord Bingham of Cornhill spoke with approval of the practice of judges to disclose a previous activity or association which would or might provide a basis for a reasonable apprehension of lack of impartiality (emphasis added).
+When, on being asked to accept an appointment, an arbitrator knows of a matter which ought to be disclosed to the parties to the reference, prompt disclosure to those parties of that matter provides the safeguard as the quality of impartiality is shown to have been there from the beginning.
+But the obligation of impartiality continues throughout the reference and the emergence during the currency of the reference of matters which ought to be disclosed means that an arbitrators prompt disclosure of those matters can enable him or her to maintain what Lord Hope calls the badge of impartiality.
+The various arbitral codes to which we were referred address the need for proper disclosure in arbitrations.
+The IBA Guidelines 2014 set out good arbitral practice which is recognised internationally, and Popplewell J in setting out his uncontested principles in para 16 of his judgment in this case correctly stated that they can assist the court in identifying what is an unacceptable conflict of interest and what matters may require disclosure: para 16(7).
+But the IBA Guidelines do not of themselves give rise to legal obligations or override national law or the arbitral rules chosen by the parties: IBA Guidelines, Introduction para 6.
+By contrast, the submission to arbitration under arbitral rules can give rise to legal obligations.
+An agreement to submit to arbitration under the ICC Arbitration Rules 2017 is deemed to be a submission to those rules (article 6) and similar provision is made in the preamble to the LCIA Rules 2014 to give contractual effect to the relevant rules.
+Under those codes the arbitrator is required to make disclosure of facts and circumstances that may in the eyes of the parties give rise to doubts about the arbitrators independence and impartiality.
+Thus, in the IBA Guidelines, General Standard 3, the duty of disclosure is triggered by the existence of facts and circumstances that may, in the eyes of the parties, give rise to doubts as to the arbitrators impartiality or independence (emphasis added).
+It is clear from the explanation of General Standard 3 that under the IBA Guidelines the duty of disclosure arises out of the parties interest in being fully informed and a disclosure does not imply the existence of a conflict of interest.
+Article 11 of the ICC Arbitration Rules and article 5.4 of the LCIA Rules, relating to disclosure, have a similar focus on the perceptions of the parties to an arbitration.
+This subjective approach to the duty of disclosure in the IBA Guidelines and the rules of the arbitral institutions addresses the perception of the parties to an arbitration who are people or entities involved in a stressful and often expensive dispute.
+English law, by contrast, adopts an objective test by looking to the judgement of the fair minded and informed observer.
+The codes also use different expressions in describing the nature of the doubts.
+The IBA Guidelines (General Standard 3) speak simply of doubts while the ICC Rules (article 11) speak of reasonable doubts and the LCIA Rules (article 5.4) speak of justifiable doubts.
+But I do not think that there is a material difference between those formulations, as I do not construe the IBA Guidelines or the institutions rules as requiring disclosure when the only doubts to which the circumstances might give rise would be unreasonable or unjustified.
+It is also clear that an arbitrator may fail to make disclosure for entirely honourable reasons, such as forgetfulness, oversight, or a failure properly to recognise how matters would appear to the objective observer.
+But as Lord Bingham of Cornhill stated in Davidson (above, para 19), [h]owever understandable the reasons for it, the fact of non disclosure in a case which calls for it must inevitably colour the thinking of the observer. b) Whether there is a legal duty of disclosure?
+A question, on which Popplewell J and the Court of Appeal reached contradictory conclusions and which is material to this appeal, is whether disclosure is a legal duty in English law or merely good arbitral practice unless the parties submit their dispute to arbitration under arbitral rules which impose a legal obligation.
+The Court of Appeal held (para 71): the present position under English law to be that disclosure should be given of facts and circumstances known to the arbitrator which, in the language of section 24 of the Act, would or might give rise to justifiable doubts as to his impartiality.
+The court continued: Under English law this means facts or circumstances which would or might lead the fair minded and informed observer, having considered the facts, to conclude that there was a real possibility that the arbitrator was biased. (Emphasis added)
+The Court of Appeal held that this is a legal duty.
+In so holding, the Court of Appeal has developed the English law of arbitration.
+The question arises whether it was correct to do so.
+In my view the Court of Appeal was correct so to hold.
+An arbitrator is under
+the statutory duties, in section 33 of the 1996 Act, to act fairly and impartially in conducting arbitral proceedings, in decisions on matters of procedure and evidence and in the exercise of all powers conferred on him or her (para 49 above).
+Those statutory duties give rise to an implied term in the contract between the arbitrator and the parties that the arbitrator will so act.
+The arbitrator would not comply with that term if the arbitrator at and from the date of his or her appointment had such knowledge of undisclosed circumstances as would, unless the parties waived the obligation, render him or her liable to be removed under section 24 of the 1996 Act.
+Moving away from the circumstances of this appeal, if one supposes that an arbitrator has a close financial relationship with a party to the arbitration in which he or she is or is to be appointed, there can be little doubt that such a relationship could readily give rise to justifiable doubts as to the arbitrators impartiality.
+Indeed, if the arbitrator had a financial interest in the dispute he or she would be disqualified and the award would be voidable: Dimes v Proprietors of Grand Junction Canal (1852) 3 HL Cas 759; 10 ER 301.
+But absent disclosure, the other party to the arbitration would be unaware of that disqualifying interest.
+In such circumstances it would in my view be incumbent on the arbitrator to disclose the relationship in order to comply with his statutory duty of fairness under section 33 of the 1996 Act.
+The duty of fairness is engaged because it is necessary that the other party to the arbitration be aware of the arbitrators financial connection with the first party and so be able to form a judgment as to his or her suitability as an arbitrator.
+Unless there is disclosure, the parties may often be unaware of matters which could give rise to justifiable doubts about an arbitrators impartiality and entitle them to a remedy from the court under section 24 of the 1996 Act.
+Those remedies are necessary in the public interest.
+A legal obligation to disclose such matters is encompassed within the statutory obligation of fairness.
+It is also an essential corollary of the statutory obligation of impartiality: an arbitrator who knowingly fails to act in a way which fairness requires to the potential detriment of a party is guilty of partiality.
+Unless the parties have expressly or implicitly waived their right to disclosure, such disclosure is not just a question of best practice but is a matter of legal obligation.
+While the statutory duty on the arbitrator to act fairly and impartially arises on his or her appointment, there is a necessity for pre appointment disclosure if the arbitration system is to operate smoothly and the making of such disclosure is recognised as good practice.
+If an arbitrator waited until after appointment to make disclosure, the arbitrator might have to resign after appointment when a party objects to his or her appointment following disclosure.
+Unsurprisingly, there is an established practice of pre appointment disclosure by prospective arbitrators.
+It is striking that ICC, LCIA and CIArb, which have no financial interest in
+the outcome of this litigation but have an interest in the integrity and reputation of English seated arbitration, argue in favour of the recognition of such a legal duty.
+The existence of a legal duty promotes transparency in arbitration and is consistent with best practice as seen in the IBA Guidelines and in the requirements of institutional arbitrations such as those of ICC and LCIA.
+In summary, I would hold that there is a legal duty of disclosure in English law which is encompassed within the statutory duties of an arbitrator under section 33 of the 1996 Act and which underpins the integrity of English seated arbitrations.
+The relationship between disclosure and the duty of privacy and c) confidentiality
+In this appeal, which concerns the allegation that an arbitrator should have
+disclosed the existence of a related arbitration involving a common party, it is necessary to consider the obligation in English law on an arbitrator to uphold the privacy and confidentiality of an arbitration which has an English seat and the boundaries of that obligation.
+English seated arbitrations are both private and confidential, if the law governing the confidentiality of the arbitration is English law.
+The obligations on the parties to uphold the privacy and confidentiality of an arbitration have been characterised as implied obligations arising out of the nature of arbitration itself: Dolling Baker v Merrett [1990] 1 WLR 1205 (CA), 1213 per Parker LJ; Ali Shipping Corpn v Shipyard Trogir [1999] 1 WLR 314, 326 per Potter LJ.
+In the latter case Potter LJ stated, the parties have indicated their presumed intention simply by entering into a contract to which the court attributes particular characteristics.
+This analysis coincides with the view expressed by Sir Patrick Neill QC in his lecture, Confidentiality in Arbitration which he delivered in 1995, which is published in (1996) 12 Arb Int 287 318, and which the DAC cited with approval in their Report on the Arbitration Bill (para 12).
+In that lecture he described the privacy and confidentiality of arbitration proceedings as a fundamental characteristic of the agreement to arbitrate (p 316).
+In Department of Economics, Policy and Development of the City of Moscow v Bankers Trust Co [2004] EWCA Civ 314; [2005] QB 207, Mance LJ stated (para 2): Among features long assumed to be implicit in parties choice to arbitrate in England are privacy and confidentiality.
+Mance LJ went on to state (para 30) that the changes to the CPR in 1997 and 2002: rest clearly on the philosophy of party autonomy in modern arbitration law, combined with the assumption that parties value English arbitration for its privacy and confidentiality.
+Party autonomy requires the court so far as possible to respect the parties choice of arbitration.
+Their choice of private arbitration constitutes an election for an alternative system of dispute resolution to that provided by the public courts.
+The same philosophy limits court intervention to the minimum necessary in the public interest, which must include the public interest in ensuring not that arbitrators necessarily decide cases in a way which a court would regard as correct, but that they at least decide them in a fundamentally fair way: see section 1 of the 1996 Act.
+In his illuminating judgment in Emmott v Michael Wilson & Partners Ltd [2008] EWCA Civ 184; [2008] Bus LR 1361 Lawrence Collins LJ (para 84) described the fundamental characteristics of privacy and confidentiality in an agreement to arbitrate under English law as being really a rule of substantive law masquerading as an implied term.
+Arbitrators also must respect the private nature of the proceedings in which they are engaged: The Eastern Saga (para 57 above).
+They are bound to uphold the privacy and confidentiality of the arbitration, whether as a result of contract or in performance of an equitable duty because they have acquired the information in circumstances importing an obligation of confidence.
+The common law does not limit the obligation of privacy and confidentiality to information, such as a trade secret, which is inherently confidential but extends it to notes of evidence and other documents disclosed or generated in arbitration because of the implied agreement that such documents can only be used for the purpose of the arbitration.
+Further, privacy may be violated by the publication or dissemination of documents deployed in the arbitration or information relating to the conduct of the arbitration.
+See Emmott v Michael Wilson & Partners Ltd (above) Lawrence Collins LJ (paras 79 83), Thomas LJ (para 129(i) (iv)).
+What are the boundaries of the arbitrators obligation of privacy and confidentiality which would allow for or prevent disclosure? While there is broad agreement that the obligation is not absolute, its boundaries are unclear.
+The law in this area is developing.
+It is sufficient to quote Lawrence Collins LJs summary in Emmott (above) para 107 of the principal cases in which disclosure is permissible: In my judgment the content of the obligation may depend on the context in which it arises and on the nature of the information or documents at issue.
+The limits of that obligation are still in the process of development on a case by case basis.
+On the authorities as they now stand, the principal cases in which disclosure will be permissible are these: the first is where there is consent, express or implied; second where there is an order or leave of the court (but that does not mean that the court has a general discretion to lift the obligation of confidentiality); third, where it is reasonably necessary for the protection of the legitimate interests of an arbitrating party; fourth, where the interests of justice require disclosure, and also (perhaps) where the public interest requires disclosure.
+As I have stated (para 57 above), the DAC did not support legislative definition but left the task of developing the rules relating to the privacy and confidentiality of arbitrations, including the boundaries of and exceptions to those obligations, to the judiciary.
+Parliament enacted the 1996 Act against that background.
+In this appeal the court is not concerned with identifying an exception to the duty of privacy and confidentiality but seeks to discover the extent to which the parties have implicitly consented to disclosure.
+After the hearing of this appeal, it became clear that the court needed further assistance from the parties and interveners concerning arbitral practices in making disclosure.
+In particular, the court sought guidance on practice in relation to the disclosure of facts concerning a related arbitration or arbitrations without obtaining the express permission of the parties to the arbitration about which information was being disclosed, and what were the practical consequences of the recognition of a legal duty of disclosure in those circumstances.
+Both parties and each of the interveners prepared careful written submissions for which the court is very grateful.
+It is clear from the parties and interveners initial cases and from their further submissions that there is a variety of arbitral practices in relation to the disclosure of multiple appointments in different contexts.
+In this context I use the expression multiple appointments to cover the acceptance of appointments in multiple references concerning the same or overlapping subject matter with only one common party as described in issue 1 in para 2 above.
+What is appropriate for arbitration in which the parties have submitted to institutional rules, such as those of ICC and LCIA, differs from the practice in GAFTA and LMAA arbitrations.
+There are practices in maritime, sports and commodities arbitrations, as the IBA Guidelines recognise (para 133 below), in which engagement in multiple overlapping arbitrations does not need to be disclosed because it is not generally perceived as calling into question an arbitrators impartiality or giving rise to unfairness.
+Where the information which must be disclosed is subject to an arbitrators duty of privacy and confidentiality, disclosure can be made only if the parties to whom the obligations are owed give their consent.
+In such a circumstance, if a person seeking appointment as an arbitrator in a later arbitration does not obtain the consent of the parties to a prior related arbitration to make a necessary disclosure about it, or the parties to the later arbitration do not consent to the arbitrators disclosure of confidential matters relating to that prospective appointment to the parties to the earlier arbitration, the arbitrator will have to decline the second appointment.
+Such consent may be express or may be inferred from the arbitration agreement itself in the context of the custom and practice in the relevant field.
+Regard must be had to the relevant custom and practice to ascertain whether consent can be inferred.
+For example, in an Admiralty case concerning a Lloyds Open Forum (LOF) arbitration, Peter Gross QC (sitting as a deputy High Court judge) agreed with the parties that the implied term of confidentiality in LOF arbitration agreements is qualified by the custom and practice of awards being made available to LOF arbitrators and counsel in other LOF cases, with a view to promoting uniformity and consistency within the LOF system of arbitration: The Hamtun (owners) v The St John (owners) [1999] 1 All ER (Comm) 587, 611.
+By agreeing to arbitrate in accordance with the terms and practice of a particular arbitral institution the arbitrating parties implicitly consent to the qualification or limitation of the obligations of privacy and confidentiality.
+In arbitrations which are governed by institutional rules which require disclosure to the institution or the parties of matters which may include information about other arbitrations (such as the ICC Arbitration Rules, article 11(2), the LCIA Rules, article 5.4, and the ICSID Arbitration Rules, rule 6(2)), the incorporation of such rules into an arbitration (arbitration 1) provides a basis for the inference that the parties to that arbitration consent to disclosure of such information about that arbitration to the parties to a prospective arbitration (arbitration 2) under such rules.
+Similarly, one can readily infer from the submission of the parties in arbitration 2 to such rules that they have consented to such disclosure to the parties to arbitration 1.
+As GAFTA and LMAA have shown, it is an accepted feature of their arbitrations that arbitrators will act in multiple arbitrations, often arising out of the same events.
+Parties which refer their disputes to their arbitrations are taken to accede to this practice and to accept that such involvement by their arbitrators does not call into question their fairness or impartiality.
+In the absence of a requirement of disclosure of such multiple arbitrations, the question of the relationship between such disclosure and the duty of privacy and confidentiality does not arise.
+As I have said, there is evidence of similar practice in re insurance arbitrations: para 43 above.
+Where parties submit to an ad hoc arbitration, practice as to privacy, confidentiality and disclosure may differ.
+Such arbitrations may include those in which the parties maintain the confidentiality of the existence of the arbitration itself by prohibiting any disclosure whatsoever.
+In such a case, the consent of both parties to the arbitration would be required to enable an arbitrator to disclose its existence to the parties to another arbitration.
+Whether an arbitrator can make disclosure of an existing or prospective arbitration without first obtaining the express consent of all parties to the arbitration about which disclosure requires to be made will depend on the relevant arbitration agreement and the custom and practice in the relevant field.
+In this appeal the court is concerned with a Bermuda Form arbitration which
+is a specialist form of arbitration (para 11 above).
+It is not disputed that it is common practice for parties, and in particular insurance companies, to appoint arbitrators who have experience in interpreting the Bermuda Form policy on repeated occasions, including in arbitrations relating to the same occurrence.
+There are sound reasons for doing so because the Bermuda Form contains some unique provisions and there is an interest in obtaining consistency of interpretation of the policy in the absence of published reports of the awards which the arbitrators have made.
+As Popplewell J stated (in para 23 of his judgment) parties often wish their arbitral tribunal to have particular knowledge and expertise in the law and practices of the relevant business or market.
+It is not uncommon for arbitrators in Bermuda Form arbitrations to disclose their involvement in prior or current arbitrations involving a common party without disclosing the identity of the other party or details concerning the arbitration, as the circumstances of this case demonstrate.
+But in this appeal the parties disagree as to the practice of disclosure in Bermuda Form arbitrations.
+Halliburton asserts that there is both a practice and a legal requirement to disclose the minimum information necessary to achieve proper disclosure while Chubb says that there is no established practice of disclosure in Bermuda Form arbitrations.
+I will address that question in para 137 below after I have considered the content of the duty of disclosure.
+It is sufficient at this stage to state that I am satisfied that in English law such multiple appointments must be disclosed in the absence of contrary agreement.
+The question which is relevant at this stage is: does the arbitrator need to obtain the express consent of the parties to the arbitration about which disclosure is to be made before making such disclosure?
+The parties agree that the disclosures which, in accordance with common practice in England, Mr Rokison made to the court in reference 1 and to Transocean in reference 2 did not breach his obligation of confidentiality to the parties to the references which were disclosed.
+Other nominees for appointment by the court in reference 1 made similar disclosures without seeking consent.
+Mr Rokisons disclosure, which Clyde & Co passed on to Transocean on 23 December 2015, stated: I have acted as party appointed arbitrator and chairman in many Bermuda Form arbitrations, a number of which, not surprisingly, have involved [Chubb], who have appointed me as their nominated arbitrator on various occasions.
+I have also previously acted as chairman in two other arbitrations, in which [Chubb] was a party.
+Currently I have only three pending cases involving [Chubb].
+In one, I am their appointee; in the second, I have been appointed as sole arbitrator by agreement between the parties; and, in the third, I have been appointed as third arbitrator by order of the London Commercial Court.
+The last of these also happens to involve what I understand is a different aspect of the Deepwater Horizon incident.
+I do not consider that the above matters affect my independence or impartiality, which I have always been at pains to maintain, but I nonetheless consider that these are matters which ought to be disclosed at this stage, rather than risking possible disruption of the arbitral proceedings after they have got under way.
+It is not disputed that the duty of privacy and confidentiality is not absolute, that the parties to an arbitration can determine as a matter of contract the extent to which they wish matters to be treated as confidential, or that there is a common practice for arbitrators in English seated arbitrations to make such high level disclosure of their involvement in other relevant arbitrations without obtaining the express consent of the parties to the arbitrations about which disclosure is being made.
+Halliburtons position is that the arbitrators duty of confidentiality does not prevent the disclosure of the names of the parties to the disclosed arbitration.
+Chubbs position is that the arbitrators duty of confidentiality covers the identity of the parties but that the information which Mr Rokison disclosed to Transocean, which did not include the identity of the parties other than Chubb itself, which was the common party who proposed his appointment, or the issues in the disclosed arbitrations, was confidential to Chubb alone and the disclosure was made on Chubbs behalf.
+The needed consent can therefore be inferred.
+There also appears to be broad agreement between ICC, LCIA and CIArb that as a general rule, in the context of a proposed appointment by a common party, an arbitrator can disclose the existence of a current or past arbitration involving a common party and the identity of the common party (but not the identity of the other party or parties) without obtaining the express consent of the parties to that arbitration, unless the parties to that arbitration have agreed to prohibit such disclosure.
+The arbitrator may similarly disclose the proposal for his or her engagement in a proposed arbitration and the identity of the common party who is seeking to make the appointment or nomination.
+The widespread arbitral practice in English seated arbitrations, which those institutions describe, supports the view that an arbitrator can do so on a confidential basis without breaching his or her obligation of privacy and confidentiality.
+This current practice of arbitrators in English seated arbitrations vouches two things.
+First, as a general rule the duty of privacy and confidentiality is not understood to prohibit all forms of disclosure of the existence of a related arbitration in the absence of express consent.
+Secondly, the duty of disclosure does not give an arbitrator carte blanche to disclose whatever is necessary to persuade a party that there is no justification for doubts about his or her impartiality.
+There will be many matters which cannot be disclosed without the express consent of the parties to that arbitration.
+As I discuss further in para 146 below, the information that can be disclosed in this context without having to obtain the express consent of the parties to the disclosed arbitration is limited.
+In many cases such a limited disclosure may satisfy the recipient, as Transoceans response to Mr Rokisons disclosures shows.
+If an arbitrator needs to disclose more detail about another arbitration in order to comply with the duty of disclosure, the arbitrator or proposed arbitrator must obtain the consent of the parties to the arbitration or proposed arbitration about which he or she is making a disclosure.
+It is clear from the responses to the courts further questions that participants in arbitration understand that the information which is disclosed can be used by its recipients only for the purpose of judging the impartiality and suitability of the arbitrator making the disclosure.
+The legal basis for this expectation or practice is that there is an equitable duty on the recipient to confine the use of the information to the purpose for which it was disclosed because (a) the information about the related arbitration is of a confidential nature and (b) it is imparted in circumstances importing an obligation of confidence: Coco v A N Clark (Engineers) Ltd [1969] RPC 41, 47 per Megarry J.
+The first of these criteria is met because of the general rule that English seated arbitrations are private matters.
+The second is met because the recipients of the disclosure know that the information which is the subject of the disclosure has been given to the arbitrator in the context of a confidential relationship between the arbitrator and the parties to the arbitration or prospective arbitration whose existence is being disclosed.
+In my view, the law can and should recognise the realities of accepted commercial and arbitral practice as a guide both in the formulation of legal rules and in the interpretation of the parties contracts when the practice operates in the public interest.
+In this case it should do so.
+In the 18th century, Lord Mansfield as Chief Justice of the Kings Bench used honest commercial practices and informal rulings on the lex mercatoria to shape the common law in relation to commercial matters.
+More recently, Lord Goff of Chieveley in an extra judicial writing (Commercial Contracts and the Commercial Court [1984] LMCLQ 382, 391) described the role of a judge to assist honest businesspeople in these terms: We are there to give effect to their transactions, not to frustrate them: we are there to oil the wheels of commerce, not to put a spanner in the works, or even grit in the oil.
+There is a public interest in upholding the integrity of arbitration as a system of alternative dispute resolution by ensuring that there is proper disclosure of an arbitrators involvement in related arbitrations in a field of arbitration in which repeated appointments occur but in which there is no common understanding that disclosure is not required.
+There is also a strong public interest in giving greater certainty as to the legal standing of established arbitral practice and the relationship between the duty of disclosure and an arbitrators duty to respect the privacy and confidentiality of an arbitration.
+In short, this court should hold that in Bermuda Form arbitrations an arbitrator may, in the absence of agreement to the contrary by the parties to the relevant arbitration, make disclosure of the existence of that arbitration and the identity of the common party in accordance with the practice which I have described without obtaining the express consent of the relevant parties.
+The consent of the common party can be inferred from its action in seeking to nominate or to appoint the arbitrator.
+The consent of the other party is not required for such limited disclosure.
+In legal analysis, the contract or contracts under which the arbitrator has been appointed in an existing or past arbitration is to be interpreted in the light of the custom and practice in the relevant field of arbitration and the party or parties to whom the relevant duty of confidence is owed are taken to have consented to such disclosure on a confidential basis.
+The common law obligation of confidence owed by a candidate for appointment to a prospective arbitration is to be understood in the same way.
+It appears from the submissions of ICC, LCIA and CIArb that the practice in English seated arbitrations of making a confidential disclosure of involvement in an arbitration involving a common party without obtaining the express consent of the parties to that arbitration is, unsurprisingly, not confined to Bermuda Form arbitrations.
+Nonetheless, how far this ruling on consent, which relates to Bermuda Form arbitrations, can be applied by analogy to other arbitrations will depend on their particular characteristics and circumstances and custom and practice in their field. d) The risk of further challenges?
+For completeness, I also address the suggestion by Chubb that the recognition of a legal duty of disclosure will tend to increase the number of challenges to appointment and to awards and possibly give rise to personal claims against arbitrators.
+Halliburton, ICC, LCIA and CIArb do not agree and none of the respondents to the courts questions are able to assist the court with empirical evidence on the matter.
+There is some empirical evidence that, in the years immediately after the IBA Guidelines were adopted in 2004, there was an increase in challenges to arbitrators as a result of disclosures.
+But three points may be made.
+First, this increase was not a consequence of making disclosure a legal duty but may have been the result of more extensive disclosure which followed the formulation of good practice.
+Secondly, that statement of good practice exists and is influential internationally whether or not a jurisdiction has a legal duty of disclosure.
+Thirdly, the challenges have rarely succeeded.
+Further, research carried out within the court in relation to jurisdictions which impose a legal duty of disclosure found very little evidence of personal claims against arbitrators.
+I respectfully question whether there is a basis in English law for a claim for damages relating to disclosure or non disclosure, in the absence of bad faith, where the legal duty is a component of the statutory duties of fairness and impartiality which do not support such claims.
+In any event, section 29 of the 1996 Act will protect arbitrators against personal claims for non disclosure in most circumstances so long as the arbitrator has not acted in bad faith.
+The LCIA Arbitration Rules (article 31) and the ICC Arbitration Rules (article 41) contain exclusion provisions and parties, arbitrators and institutions, who have not already done so, can adapt their contracts or rules to confer a wider immunity against personal claims in the light of this ruling. e) What is the content of the duty?
+I also agree with the Court of Appeals formulation of the duty of disclosure (para 74 above) subject to one qualification, which concerns the words known to the arbitrator.
+An arbitrator can disclose only what he or she knows and is, as a generality, not required to search for facts or circumstances to disclose.
+But I do not rule out the possibility of circumstances occurring in which an arbitrator would be under a duty to make reasonable enquiries in order to comply with the duty of disclosure.
+For example, if a would be arbitrator had a business relationship with a person (A), which, because of a financial interest, would have prevented him from being an arbitrator in a reference in which A was a party, he or she, if offered an appointment in an arbitration in which B was a party, might be under an obligation to make enquiry if he or she had grounds to think that B might a business partner of A. Mr Kimmins, on behalf of LCIA, referred the court to the IBA Guidelines, Part I, General Standard 7(d), and submitted that an arbitrator is under a duty to make reasonable enquiries as to whether there are facts or circumstances which might lead the fair minded and informed observer to conclude that there was a real possibility of bias.
+It is not necessary in the context of this appeal to express a concluded view on whether this statement of good practice is also an accurate statement of English law, but I do not rule out that it might be.
+What is meant by the Court of Appeals formulation of the duty, and in particular the words would or might? Counsel hardly touched on this issue.
+It is not central to the dispute but it must be addressed.
+It appears to me that if some matter would give rise to justifiable doubts as to an arbitrators impartiality, the disclosure of that matter would not as a general rule remove the difficulty.
+The correct course for the arbitrator would usually be not to take up or, if the matter arose later, to withdraw from the reference.
+On the other hand, to require disclosure of some matter which was trivial and could not materially support a conclusion that there was a real possibility of bias, would be to risk causing the parties unnecessary concerns about an arbitrators impartiality and also to encourage vexatious challenges by a party to the arbitrators position.
+As Lord Mance stated in Helow (above, para 58): [T]o take two opposite extremes, disclosure could not avoid an objection to a judge who in the light of the matter disclosed clearly ought not to hear the case; and non disclosure could not be relevant, if a fair minded and informed observer would not have thought that there was anything even to consider disclosing.
+An obligation to disclose a matter which might give rise to justifiable doubts arises only where the matter might reasonably give rise to such doubts.
+There will be matters between the two extremes of which Lord Mance spoke.
+There will be matters which, if left unexplained, would give rise to justifiable doubts as to an arbitrators impartiality.
+They must be disclosed and neutralised by explanation.
+Similarly, there will be matters, which are more than trivial, which an arbitrator ought to recognise could by themselves or in combination with other circumstances (including a failure to disclose those matters) give rise to such justifiable doubts, if later discovered.
+Commentators have sought to express the requirement in different ways.
+Redfern and Hunter (above, paras 4.79 4.80) suggest that the arbitrator should disclose all of the facts that could reasonably be considered to be grounds for disqualification and also that there should be immediate disclosure if new circumstances arise that might give cause for any doubt as to the arbitrators impartiality.
+Merkin and Flannery on the Arbitration Act 1996, 6th ed (2019), pp 286 287, advise that an arbitrator should disclose any fact or circumstance which in his or her mind would or might (once disclosed) give rise to justifiable doubts as to his or her impartiality.
+The authors draw on the case of Almazeedi (above) and suggest that the purpose of disclosure may often go beyond legitimate concerns about independence and impartiality which would (subject to waiver) require the arbitrator to recuse himself or herself because such disclosure enables the parties to address whether there is a problem and if so how to tackle it.
+They advise disclosure in cases where the arbitrator might not be sure whether the truth, if disclosed, would give rise to justifiable doubts, but would (or ought to) know that the truth might do so.
+D Sutton et al, Russell on Arbitration, 24th ed (2015), para 4 131 state that an arbitrator should disclose a prior interest that might raise doubts about his impartiality but go on to suggest that the only legal obligation is to disclose matters which would amount to bias.
+Like the Court of Appeal, I am not persuaded that the legal obligation is limited as the authors of Russell suggest in their second statement.
+It has been suggested that the breach of a legal obligation to disclose a matter which might, but on examination after the event did not, give rise to a real possibility of bias would be a legal wrong for which there was no legal sanction.
+I do not agree for two reasons.
+First, in a case in which the matter is close to the margin, in the sense that one would readily conclude that there is apparent bias in the absence of further explanation, the non disclosure itself could justify the removal of the arbitrator on the basis of justifiable doubts as to his or her impartiality: paras 117 118 below.
+Secondly, in cases where the matter is serious but the non disclosure of that matter, on later examination, does not support the conclusion that there is apparent bias, the arbitrator might, depending on the circumstances, face an order to meet some or all of the costs of the unsuccessful challenger or to bear the costs of his or her own defence.
+The existence of such a duty provides support to the fairness and impartiality of arbitral proceedings under English law by allowing non disclosure to carry greater weight in the basket of factors to be assessed under section 24(1)(a) of the 1996 Act than a mere deviation from best practice.
+The development of the common law to impose such a duty is consistent with developments in other jurisdictions.
+In Scotland, there was no express authority but legal commentators on arbitration had long suggested that an arbiter is subject to a duty to disclose to the parties any factor of which he is aware which might provide a basis for a challenge: F Davidson, Arbitration, 1st ed (2000), para 6.20 and the commentaries which he there cites.
+More recently, the Scottish Parliament has enacted a mandatory rule in the Arbitration (Scotland) Act 2010, which draws on the UNCITRAL Model Law.
+This rule (Schedule 1, rule 8) imposes a duty on an arbitrator or anyone asked to become an arbitrator to disclose any conflicts of interest.
+It provides that the individual must without delay make disclosure of: any circumstances known to the individual (or which become known to the individual before the arbitration ends) which might reasonably be considered relevant when considering whether the individual is impartial and independent.
+Professor Davidson in the second edition of his book (in 2012) (paras 7.29 7.30) observes that this is an objective test and suggests that the factors listed in the Red and Orange Lists of the IBA Guidelines will usually provide useful guidance.
+Several jurisdictions have adopted the UNCITRAL Model Law which provides in article 12(1): When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence.
+An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties (Emphasis added) The word likely in the UNCITRAL Model Law must be interpreted in the context of the Model Law itself, which appears to suggest that the obligation to disclose arises if the circumstances could reasonably give rise to justifiable doubts.
+This is because the wording of article 12(1) is in contrast with article 12(2) which provides that an arbitrator may be challenged if circumstances exist that give rise to justifiable doubts (emphasis added).
+Provisions to substantially the same effect have been adopted in jurisdictions which have adopted the UNCITRAL Model Law, including Germany (section 1036 of Book 10 of the Zivilprozessordnung), Canada (article 12 of Schedule 1 to the Canadian Commercial Arbitration Act, RSC 1985), Belgium (article 1686(1) of the Belgian Judicial Code), Sweden (sections 8 and 9 of the Swedish Arbitration Act 1999) and Austria (section 588 of the Austrian Arbitration Act 2006).
+In Switzerland, although the rule is not part of a statutory regime, the Swiss Chambers Arbitration Institution has adopted the UNCITRAL Model Laws approach in article 9(2) of its Swiss Rules of International Arbitration.
+It is consistent with these international comparators for English common law in relation to the obligation of disclosure of an arbitrator to develop as the Court of Appeal has found. f)
+Summary on disclosure
+In summary, the arbitrators legal obligation of disclosure imposes an objective test.
+This differs from the rules of many arbitral institutions which look to the perceptions of the parties to the particular arbitration and ask whether they might have justifiable doubts as to the arbitrators impartiality.
+The legal obligation can arise when the matters to be disclosed fall short of matters which would cause the informed observer to conclude that there was a real possibility of a lack of impartiality.
+It is sufficient that the matters are such that they are relevant and material to such an assessment of the arbitrators impartiality and could reasonably lead to such an adverse conclusion.
+Whether and to what extent an arbitrator may disclose the existence of a related arbitration without obtaining the express consent of the parties to that arbitration depends upon whether the information to be disclosed is within the arbitrators obligation of privacy and confidentiality and, if it is, whether the consent of the relevant party or parties can be inferred from their contract having regard to the customs and practices of arbitration in their field.
+(iii) Whether a failure to make disclosure can demonstrate a lack of impartiality
+Is disclosure relevant to apparent bias? Mr Michael Crane QC on behalf of Chubb correctly makes the point that the inequality of knowledge, which Halliburton lists as one of the principal concerns arising from multiple references concerning overlapping subject matter with only one common party, raises a question of the fairness of the arbitral proceedings, which can be dealt with under section 24(1)(d)(i) of the 1996 Act if there is proof of substantial injustice.
+That is so; but a failure of that arbitrator to disclose the other references could give rise to justifiable doubts as to his or her impartiality.
+I agree with the dicta of Cockerill J in PAO Tatneft v Ukraine [2019] EWHC 3740 (Ch), para 57 that: the obligation of disclosure extends to matters which may not ultimately prove to be sufficient to establish justifiable doubts as to the arbitrators impartiality.
+However, a failure of disclosure may then be a factor in the latter exercise.
+Where an arbitrator has accepted an appointment in such multiple references in circumstances which might reasonably give rise to justifiable doubts as to his or her impartiality, or is aware of other matters which might reasonably give rise to those doubts, a failure in his or her duty to disclose those matters to the party who is not the common party to the references deprives that party of the opportunity to address and perhaps resolve the matters which should have been disclosed.
+The failure to disclose may demonstrate a lack of regard to the interests of the non common party and may in certain circumstances amount to apparent bias.
+(iv) The time of the assessment of the need for disclosure
+The Court of Appeal (para 70) held that, as disclosure was required of circumstances that might lead to a conclusion of apparent bias, the question of what is to be disclosed is to be considered prospectively.
+A court when later assessing whether there should have been disclosure must have regard to the circumstances prevailing at the time when the arbitrator acquired the requisite knowledge of those circumstances and disregard matters of which the arbitrator could not have known at that time.
+I agree with that conclusion.
+A determination as to whether an arbitrator has failed to perform a duty to disclose can only be made by reference to the circumstances at the time the duty arose and during the period in which the duty subsisted.
+The question whether there should have been disclosure should not be answered retrospectively by reference to matters known to the fair minded and informed observer only at a later date.
+The duty of disclosure is a continuing duty and circumstances may change before there is disclosure.
+Those circumstances may aggravate an existing failure to disclose a matter or, while not expunging such a failure, may render any continuing failure a less potent factor in an assessment of justifiable doubts as to impartiality.
+For example a scenario might be that (i) an arbitrator accepts an appointment in a reference between A and B; (ii) the arbitrator accepts an appointment in an overlapping reference to which A is not a party but B is, without disclosing the appointment to A in circumstances in which the arbitrator should have disclosed it; (iii) the arbitrator makes an interim determination in the first reference which causes A to question his or her impartiality; (iv) the second reference then does not proceed.
+The failures to disclose at stages (ii) and (iii) would not be negated by the termination of the second reference, but in assessing the significance of the continuing failures to disclose after stage (iv) to the question of justifiable doubts, the court would have regard to the fact that the second arbitration did not proceed.
+(v) The time of assessment of the possibility of bias
+What is the time by reference to which the court must assess the question of the possibility of bias? This question is, in my view, of central importance to the outcome of this appeal.
+As we have seen, section 24(1)(a) empowers the court to remove an arbitrator on the ground that circumstances exist that give rise to justifiable doubts as to his impartiality.
+The use of the present tense (exist) directs the court to assess the circumstances as they exist at the date of the hearing of the application to remove the arbitrator by asking whether the fair minded and informed observer, having considered the facts then available to him or her, would conclude that there is a possibility that the arbitrator is biased.
+There is support for this view in the case law concerning the application of the test in other circumstances.
+In R v Gough [1993] AC 646, Lord Goff of Chieveley stated (p 670E) that the court had to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time.
+In AT & T Corpn v Saudi Cable Co [2000] 2 Lloyds Rep 127, the Court of Appeal (Lord Woolf MR, Potter and May LJJ) dealt with an application for the removal of an arbitrator as chairman of an ICC Tribunal on the ground of apparent bias.
+Lord Woolf in para 42 of his judgment described the courts task in this way: The court considers on all the material which is placed before it whether there is any real danger of unconscious bias on the part of the decision maker.
+This is the case irrespective of whether it is a judge or an arbitrator who is the subject of the allegation of bias. (Emphasis added) Lord Woolfs formulation of the test pre dated the refinement of Lord Goffs formulation by Lord Hope in Porter v Magill but that refinement is not material to the point for which I cite this passage.
+In R (Condron) v National Assembly for Wales [2006] EWCA Civ 1573; [2007] LGR 87 the Court of Appeal (Ward, Wall and Richards LJJ) addressed a challenge to a decision to allow a planning application taken by the Planning Decision Committee of the Assembly on the basis of apparent bias arising from a remark made by a member of the committee to an objector on the day before the decision.
+After the decision, the objectors to the application complained to the Commissioner for Standards who produced a report several months later which stated that he found no evidence of bias in the members consideration of the application.
+The judge disregarded evidence of the Commissioners assessment of what had occurred at the meeting of the committee, because it would not have been available to the objectors or the hypothetical observer at the time of the decision.
+Richards LJ, with whom the other Lord Justices agreed, disagreed with the judges approach and stated (para 50): The court must look at all the circumstances as they appear from the material before it, not just at the facts known to the objectors or available to the hypothetical observer at the time of the decision.
+At para 63 of AT & T Corpn Potter LJ in his concurring judgment described the courts task as embodying the standards of the informed observer viewing the matter at the relevant time, which is of course the time when the matter comes before the court.
+In the present appeal the Court of Appeal was correct in para 95 of its judgment to apply the test for apparent bias by asking whether at the time of the hearing to remove the circumstances would have led the fair minded and informed observer to conclude that there was in fact a real possibility of bias.
+I turn then to the two principal issues in this appeal. (vi) The issues Issue 1 a)
+The first issue is whether and to what extent an arbitrator may accept appointments in multiple references concerning the same or overlapping subject matter with only one common party without thereby giving rise to an appearance of bias.
+Arbitration involves the conferral of jurisdiction by contract, through the consensus of the parties to the reference.
+As it is a contract based jurisdiction, the degree of the independence of the arbitrators from the parties and the extent of their prior knowledge of the circumstances of an event giving rise to the arbitration or the market in which the arbitrating parties operate may, subject to the requirements of the 1996 Act, be determined by the agreement of the parties, express or implied.
+The 1996 Act contains no provision which directly addresses the arbitrators independence and prior knowledge, but it imposes the centrally important obligations of fairness and impartiality.
+Therefore, an arbitrator would be in breach of the requirements of the 1996 Act if his or her lack of independence compromised the duties of fairness and impartiality.
+In the absence of a statutory provision which directly addresses the question of overlapping appointments, the fair minded and informed observer will have regard to the terms of the contract or contracts giving rise to the arbitration and the factual matrix in addressing the issue.
+In considering the factual matrix, the objective observer will take account both of the differing perceptions of the role of the party appointed arbitrator and the fact that in certain subject matter fields of arbitration there are different expectations as to the degree of independence of an arbitrator and as to the benefits to be gained by having an arbitrator who is involved in multiple related arbitrations.
+The objective observer will appreciate that there are differences between, on the one hand, arbitrations, in which there is an established expectation that a person before accepting an offer of appointment in a reference will disclose earlier relevant appointments to the parties and is expected similarly to disclose subsequent appointments occurring in the course of a reference, and, on the other hand, arbitrations in which, as a result of relevant custom and practice in an industry, those expectations would not normally arise.
+The objective observer will consider whether in the circumstances of the arbitration in question it would be reasonable to expect the arbitrator not to have the knowledge or connection with the common party which the multiple references would give him or her.
+It is clear that interrelated arbitrations meeting the description of issue 1 are rarer in some circumstances than in others.
+Mr Constantine Partasides QC, who appears on behalf of ICC, represents to the court that such interrelated arbitrations are not common in ICC arbitrations and therefore such circumstances may more readily give rise to an appearance of bias.
+GAFTA and LMAA explain that multiple appointments are common in their fields of operation: see paras 43 and 44 above.
+There is also evidence from ARIAS (UK) of such practice in reinsurance arbitrations: para 43 above.
+It appears that it is not uncommon for a number of arbitrations involving claims against different insurers arising out of the same incident to commence at around the same time and for the same arbitrator to be appointed in respect of several or all of those arbitrations: see for example, Jacobs, Masters and Stanley, Liability Insurance in International Arbitration.
+The Bermuda Form, 2nd ed (2011), para 14.32.
+It is of note that both Halliburton and Chubb made such appointments in relation to the Deepwater Horizon disaster.
+It does not appear that this practice is inherently problematic so long as the arbitrator can approach each individual arbitration objectively and with an open mind; it depends on the facts of the individual case: see, in analogous judicial proceedings, Locabail (UK) Ltd (above), para 25 (p 480G H); Stubbs v The Queen [2018] UKPC 30; [2019] AC 868, para 16.
+Mr Crane also cited many arbitral appeals in which courts or arbitral bodies have rejected challenges to an arbitrators impartiality based on his or her participation in prior or contemporaneous related arbitrations.
+Different practices in differing fields are recognised in the IBA Guidelines.
+As the LMAA points out, the IBA Guidelines describe the Orange List as a non exhaustive list of specific situations that, depending on the facts of a given case, may, in the eyes of the parties, give rise to doubts as to the arbitrators impartiality or independence (emphasis added).
+The IBA Guidelines impose a higher test for the duty to decline an appointment than for the duty of disclosure.
+The former requires the existence of justifiable doubts (General Standard 2; para 54 above) and the latter merely the possibility of such doubts (General Standard 3; para 72 above).
+The Court of Appeal in para 53 of its judgment agreed with the judge that the mere fact that an arbitrator accepts appointments in multiple references concerning the same or overlapping subject matter with only one common party does not of itself give rise to an appearance of bias.
+The court referred to the judgment of Dyson LJ in AMEC Capital Projects Ltd v Whitefriars City Estates Ltd [2004] EWCA Civ 1418; [2005] 1 All ER 723, paras 20 and 21, in support of the view that something more, which was something of substance, was required.
+I do not interpret the Court of Appeal as saying that the acceptance of multiple appointments can never be sufficient of itself to give rise to the appearance of bias.
+But if that is what the court meant, I would respectfully disagree, especially because the inequality of knowledge between the common party and the other party or parties has the potential to confer an unfair advantage of which an arbitrator ought to be aware.
+It must depend on the circumstances of the particular arbitration, including the custom and practice in arbitrations in the relevant field, which should be examined closely.
+I therefore agree with the submission of LCIA that where an arbitrator accepts appointments in multiple references concerning the same or overlapping subject matter with only one common party, this may, depending on the relevant custom and practice, give rise to an appearance of bias. b)
+Issue 2
+The second issue is whether and to what extent an arbitrator may accept the multiple references described in the first issue without making disclosure to the party who is not the common party.
+In English law it is not necessary that the facts or circumstances which are to be disclosed would cause the fair minded and informed observer to conclude that there was a real possibility that the arbitrator was biased.
+It is sufficient that they might reasonably cause the objective observer to reach that conclusion: see paras 108 and 118 above.
+It follows that the obligation to disclose can arise in circumstances in which the objective observer, informed of the facts at the date when the decision whether to disclose is or should have been made (the disclosure date), might reasonably conclude that there was a real possibility of bias, even if at a later date, with the benefit of information which was not available at the disclosure date, the objective observer would conclude that there was not such a real possibility.
+The failure of the arbitrator to disclose such facts and circumstances is itself a factor to which the fair minded and informed observer would have regard in reaching a conclusion as to whether there was a real possibility of bias.
+Whether there needs to be such a disclosure depends on the distinctive customs and practices of the arbitration in question.
+The Orange List in the IBA Guidelines includes the circumstance of an arbitrator having been appointed as arbitrator on two or more occasions within the past three years by one of the parties or its affiliate (para 3.1.3 of Part II (Practical Application of the General Standards)).
+However, footnote 5 to para 3.1.3 states: It may be the practice in certain types of arbitration, such as maritime, sports or commodities arbitration, to draw arbitrators from a smaller or specialised pool of individuals.
+If in such fields it is the custom and practice for parties to frequently appoint the same arbitrator in different cases, no disclosure of this fact is required, where all parties in the arbitration should be familiar with such custom and practice.
+Para 3.1.5 of that Part also lists as a circumstance which might require disclosure: The arbitrator currently serves, or has served within the past three years, as arbitrator in another arbitration on a related issue involving one of the parties, or an affiliate of one of the parties.
+There will be cases where the custom and practice of the type of arbitration have created expectations which would negative the need for disclosure.
+There may also be cases where the failure to disclose would carry little or no weight as in Helow v Secretary of State for the Home Department (above), para 58 per Lord Mance.
+But an arbitrator cannot be wholly equated with a judge: see paras 56 68 above.
+There will therefore be circumstances in which an arbitrator is under a duty to make disclosure when a judge would not.
+There may be many circumstances in which the combination of multiple references as described in the first issue and a failure by the arbitrator to disclose such references to the party who is not a common party would give rise to the appearance of bias.
+That would require the arbitrator to extricate himself or herself from one or more of the relevant arbitrations or to face removal by the court.
+There may also be circumstances in which because of the custom and practice of specialist arbitrators in specific fields, such as maritime, sports and commodities and maybe others, such multiple appointments are a part of the process which is known to and accepted by the participants.
+In such circumstances no duty of disclosure would arise.
+But rather than having disputes about the existence or absence of such a duty by proof of a general custom and practice in a particular field of arbitration, there may be merit in putting the matter beyond doubt by express statement in the rules or guidance of the relevant institutions.
+And, in line with the principle of party autonomy, the parties to an arbitration can contract to limit the arbitrators obligation of disclosure.
+The answer to the second issue therefore is that, unless the parties to the arbitration otherwise agree, arbitrators have a legal duty to make disclosure of facts and circumstances which would or might reasonably give rise to the appearance of bias.
+The fact that an arbitrator has accepted appointments in multiple references concerning the same or overlapping subject matter with only one common party is a matter which may have to be disclosed, depending upon the customs and practice in the relevant field.
+In cases in which disclosure is called for, the acceptance of those appointments and the failure by the arbitrator to disclose the appointments taken in combination might well give rise to the appearance of bias. (vii) Must there be disclosure of multiple appointments in the context of Bermuda Form arbitrations?
+In my view under English law multiple appointments (as described in the first issue (para 2)) must be disclosed in the context of Bermuda Form arbitrations in the absence of an agreement to the contrary between the parties to whom disclosure would otherwise be made.
+Unlike in GAFTA and LMAA arbitrations, it has not been shown that there is an established custom or practice in Bermuda Form arbitrations by which parties have accepted that an arbitrator may take on such multiple appointments without disclosure.
+This is unsurprising as the claimant in such an arbitration may often not be a repeat player while an insurance company is much more likely to be.
+The need for disclosure can be illustrated by the circumstances of this case which I discuss more fully in the next section.
+In summary, on appointment as arbitrator in reference 1, Mr Rokison became subject to the statutory duties in section 33 of the 1996 Act, to act fairly and impartially in conducting arbitral proceedings, in decisions on matters of procedure and evidence and in the exercise of all powers conferred on him (para 49 above).
+Those duties were owed to both Halliburton and Chubb.
+One of Halliburtons complaints (para 41 above) is that relevant information and the opportunity for communication with the common arbitrator were available to Chubb in reference 2 which were not available to Halliburton.
+Being unaware of the appointment in reference 2, Halliburton was not able to assess whether and to what extent this involved unfairness and how to respond to that appointment.
+The appointment in reference 2 had the potential to give rise to unfairness, which Halliburton had no opportunity to address.
+The failure to give a party to an arbitration that opportunity, Halliburton argues, might amount to apparent bias.
+I agree.
+(viii) Application to the facts
+Before accepting his appointment by the High Court, Mr Rokison disclosed his prior involvement in arbitrations involving Chubb, including those in which he was appointed by Chubb.
+The High Court appointed him to reference 1 against the wishes of Halliburton but as one of the nominees of Chubb.
+The courts decision to appoint Mr Rokison, which was not challenged, means that Halliburtons wish to have another person to be the chair of the arbitral tribunal is of little if any relevance to the objective assessment of Halliburtons claim of appearance of bias.
+When Mr Rokison was offered the appointments by Chubb as party appointed arbitrator on references 2 and 3, he disclosed his appointment in reference 1 to the parties to those arbitrations.
+Transocean did not object.
+The appointment in reference 2 was made approximately six months after Flaux J appointed him as the third arbitrator in reference 1 and the appointment in reference 3 was over one year after that court appointment.
+Other things being equal, the objective observer at the time of each of the later appointments would expect that the substantive hearing in reference 1 would precede those in references 2 and 3.
+Each of the references arose out of the Deepwater Horizon disaster and concerned the liability of an insurer to indemnify a party involved in the disaster which had settled claims.
+It is not clear that at the date of his acceptance of appointment in reference 2 in December 2015, Mr Rokison would have known of the degree of overlap which might arise between reference 1 and reference 2.
+Most of the background circumstances of the disaster would be uncontroversial but it is not clear whether the different circumstances of the two settlements, including the fact that one pre dated and the other post dated the Federal Judgment, would have been apparent.
+Even if such information was then available, there is no suggestion that, at the date of appointment in reference 2, the preliminary issue which undermined Transoceans claims for indemnity had been identified as a feature that distinguished reference 2 from reference 1.
+The possibility that the common party to two overlapping references might obtain an advantage over its opponent in one or the other arbitration by having access to information about the common arbitrators responses to the evidence led or the arguments advanced in the arbitration which was the first to be heard can readily be seen as a cause of concern to the other party in the arbitration in which the evidence and legal submissions are heard later.
+That is why, in an application under section 18 of the 1996 Act, Leggatt J declined to appoint as the third arbitrator in two related arbitrations a person who had been appointed the third arbitrator in a prior overlapping arbitration, holding that there would be a legitimate concern that he would be influenced by arguments and evidence in the earlier arbitration: Guidant LLC v Swiss, In re International SE [2016] EWHC 1201 (Comm); [2016] 1 CLC 767.
+In the present case, the existence of possibly overlapping arbitrations with only one common party would not necessarily cause the fair minded and informed arbitrator to conclude that there was a real possibility of bias, when assessed at the date when the appointment to reference 2 was made.
+But if Halliburton had been aware of the appointment in reference 2, it might have had concerns about the fairness of its arbitration because of the inequality of knowledge and opportunities to communicate with the arbitrator set out in para 41 above.
+Such circumstances might reasonably cause the objective observer considering the matter at that time to conclude that there was a real possibility of bias.
+The circumstances were both relevant and material to that assessment.
+I recorded in para 27 above the fact that Halliburton had not formally disclosed their appointment of Professor Park in three arbitrations arising out of the Deepwater Horizon incident and the suggestion that the fact that Professor Park was a party appointed arbitrator rather than a chair or umpire is a significant distinction from Mr Rokisons position.
+As I have said, that is not a distinction which English law would recognise as a basis for a party appointee avoiding the obligation of disclosure.
+The disagreement among people involved in international arbitration as to the role of the party appointed arbitrator is a circumstance which points to the disclosure of such multiple nominations; it does not provide a ground for non disclosure.
+I am persuaded that Mr Rokison was under a legal duty to disclose his appointment in reference 2 to Halliburton because at the time of that appointment the existence of potentially overlapping arbitrations with only one common party was a circumstance which might reasonably give rise to the real possibility of bias.
+In my view the disclosure in such circumstances ought to have included (i) the identity of the common party who was seeking the appointment of the arbitrator in the second reference (ii) whether the proposed appointment in the second reference by the common party was to be a party appointment or a nomination for appointment by a court or a third party, and (iii) a statement of the fact that the second reference arose out of the same incident.
+The disclosure of this information would impinge upon the privacy of the second reference to the extent that the identity of the common party and the prospect of its involvement in a related arbitration were disclosed, but an arbitrators duty of privacy and confidentiality would not prevent such disclosure because one can infer consent for such limited disclosure: see paras 78 98 above.
+A high level statement as to whether similar issues were likely to arise, such as Mr Rokison gave to Transocean when he made a proper disclosure of his prior involvement in arbitrations involving Chubb including in an arbitration concerning the Deepwater Horizon incident (para 98 above), would also involve no breach of the arbitrators duty of privacy and confidentiality.
+If further information had to be imparted to achieve proper disclosure or to satisfy Halliburton that the appointment in reference 2 was not a problem, Mr Rokison would have had to obtain the express consent of both parties to the second reference to that disclosure.
+Mr Rokisons failure to disclose his appointment in reference 2, which was a potentially overlapping arbitration with only one common party, was a breach of his legal duty of disclosure.
+Without the further information which I discuss below, I am of the view that the fair minded and informed observer, if he or she had considered the question at or around the date of his acceptance of appointment in reference 2, may well have concluded that there was a real possibility of bias.
+But it is not necessary to express a concluded view on this as that is not the correct time to ask the question.
+By the date of the hearing for removal in January 2017 Mr Rokison had given an explanation of his failure to disclose the appointments in references 2 and 3.
+Halliburtons lawyers accepted that his explanation of oversight was genuine and they did not challenge his statement that he believed that there was not a material overlap between the references.
+Chubb also points out that reference 2 followed about six months behind reference 1 and suggests it is more likely that Transocean rather than Halliburton would have cause for concern about one arbitration being a dress rehearsal for the later arbitration.
+Having regard to the circumstances known to the court at the date of the hearing at first instance, I am not persuaded that the fair minded and informed observer would infer from the oversight that there was a real possibility of unconscious bias on Mr Rokisons part.
+First, there appears to have been a lack of clarity in English case law as to whether there was a legal duty of disclosure and whether disclosure was needed; that can be seen from the judgment at first instance of the able and experienced commercial judge.
+Secondly, the time sequence of the three references may explain why Mr Rokison saw the need to disclose reference 1 to Transocean but did not identify the need to tell Halliburton about reference 2.
+Thirdly, his measured response to Halliburtons robust challenge disclosed that it was likely that references 2 and 3 would be resolved by the preliminary issue and that there would not be any overlap in evidence or legal submissions between them and reference 1.
+As the arbitral tribunal had held hearings on the preliminary issues in November 2016, Mr Rokison would have been aware of its likely decision when he corresponded with K & L Gates in December 2016 and January 2017 (paras 19 22 above).
+Indeed, the awards handed down on 1 March 2017 revealed that his discreet prediction was correct.
+If that had not been the outcome of the preliminary issues, he had also offered to consider resigning from his appointments in references 2 and 3.
+As a result of Mr Rokisons response, there was no likelihood of Chubb gaining any advantage by reason of the overlapping references.
+Fourthly, there is no question of Mr Rokison having received any secret financial benefit in this case; if that objection were valid it would mean that every party appointed arbitrator receives a disqualifying benefit.
+In this regard I agree with the Court of Appeal in para 82 of its judgment and with Popplewell J in para 20 of his judgment.
+Fifthly, I am satisfied that there is no basis for inferring unconscious bias in the form of subconscious ill will in response to the robustness of the challenge which K & L Gates mounted on behalf of Halliburton.
+As Popplewell J stated (in para 56 of his judgment), he responded in a courteous, temperate and fair way and there is no evidence that he bore any animus towards Halliburton as a result.
+Therefore, for reasons which differ in part from the courts below, I am satisfied that Popplewell J and the Court of Appeal were correct to hold that the fair minded and informed observer, looking at the facts and circumstances which would be known to him or her at the date of the hearing in January 2017, would not conclude that there was a real possibility of bias or, in the words of section 24(1)(a) of the 1996 Act, that circumstances existed that gave rise to justifiable doubts about Mr Rokisons impartiality.
+The appeal therefore fails.
+Summary of the law
+The obligation of impartiality is a core principle of arbitration law and in English law the duty of impartiality applies equally to party appointed arbitrators and arbitrators appointed by the agreement of party appointed arbitrators, by an arbitral institution, or by the court. (paras 49 and 63)
+The assessment of the fair minded and informed observer of whether there is a real possibility of bias is an objective assessment which has regard to the realities of international arbitration which I have discussed in paras 56 68 above and the customs and practices of the relevant field of arbitration.
+There may be circumstances in which the acceptance of appointments in multiple references concerning the same or overlapping subject matter with only one common party might reasonably cause the objective observer to conclude that there is a real possibility of bias.
+Whether the objective observer would reach that conclusion will depend on the facts of the particular case and especially upon the custom and practice in the relevant field of arbitration. (paras 127 131)
+Where, as in the context of a Bermuda Form arbitration, such circumstances might reasonably give rise to a conclusion by the objective observer that there was a real possibility of bias, the arbitrator is under a legal duty to disclose such appointments, unless the parties to the arbitration have agreed otherwise. (paras 76 81, 132 136)
+That legal duty of disclosure, which is a component of the arbitrators statutory duty to act fairly and impartially, does not override the arbitrators duty of privacy and confidentiality in English law; but, absent a contract restricting or prohibiting disclosure or binding rules which have different effect, the disclosure of information of the nature described at para 146 above may be made without obtaining the express consent of the parties to the relevant arbitration where the needed consent is inferred.
+Such consent may be inferred from the arbitration agreement itself in the context of the practice in the relevant field. (paras 76 81, 88 104, 146)
+A failure of an arbitrator to make disclosure in the circumstances described in para 153 above is a factor for the fair minded and informed observer to take into account in assessing whether there is a real possibility of bias. (paras 117 118)
+The fair minded and informed observer in assessing whether an arbitrator has failed in a duty to make disclosure must have regard to the facts and circumstances as at and from the date when the duty arose. (paras 119 120)
+The fair minded and informed observer assesses whether there is a real possibility that an arbitrator is biased by reference to the facts and circumstances known at the date of the hearing to remove the arbitrator. (paras 121 123)
+Conclusion
+I would dismiss the appeal.
+LADY ARDEN:
+The parties and the interveners have provided such a considerable body of submissions and material, containing a wealth of learning, that it is hardly possible for a single judgment, or even more than one, to capture all the points that could be made.
+I agree with the judgment of Lord Hodge but there are a few further points I wish to make which seem to me to reinforce the overall conclusions which this court has reached, or in paras 164, 171, 185 and 188 below to qualify them.
+Disclosure: secondary obligation arising from the primary impartiality duty
+In my consideration of the issues I have found it useful to dissect the particular characteristics of the duty of disclosure.
+It is not an unconditional duty, or a duty in the usual sense of the word, but a part of a bigger picture.
+The duty is not the primary duty.
+The primary duty is to act fairly and impartially as arbitrator (section 33 of the Arbitration Act 1996 (the 1996 Act), set out in para 49 above).
+An arbitrator who acts with actual or apparent bias does not act impartially.
+As hereafter explained, to remove any doubt about apparent bias, an arbitrator may wish to disclose matters to the parties.
+It is from that consequence of the impartiality duty that a duty of disclosure can be said to arise, but it is not an independent, self contained duty.
+The Court of Appeal described the duty as a legal duty and Lord Hodge has made it clear that it is a legal duty because it is implied (if not express) into the contract between all the parties to an arbitration when an arbitrator is appointed.
+There is scope for debate as to whether it is a duty at all in the strict sense.
+The duty only arises if the arbitrator wants to take a further appointment in a different arbitration.
+The question whether there is then a duty in the strict sense or not is analogous to the debate in the law of fiduciaries as to whether a fiduciary is subject to a duty not to have a conflict of interest or merely under a disability so that the transaction into which he or she enters while he or she has a conflict of interest is liable to be set aside and he or she becomes accountable for any profit which he thereby makes.
+Lord Hodge and I, as fellow Law Commissioners, drew attention to this debate in the context of company directors (Company Directors: Regulating Conflicts of Interest and Formulating a Statement of Duties (1998) (Law Commission Consultation Paper No 153; Scottish Law Commission Paper No 105, para 11.13)).
+But Sir Robert Megarry V C in Tito v Waddell [1977] Ch 106, 248 and others regarded this problem as essentially one of classification and indeed the Law Commissions went on to recommend that Parliament should enact a statement of duties.
+Parliament enacted a statement which includes a duty to avoid conflicts of interest and a duty to disclose interests of which a director is aware in proposed contracts in sections 175 and 177 of the Companies Act 2006.
+So, I too am content to refer to it as a duty to disclose (with the special characteristics already mentioned).
+As regards the duty to disclose, it is of some interest that section 177(5) of the Companies Act 2006 provides that a director should be treated as being aware of matters of which he ought reasonably to be aware.
+While I agree with Lord Hodge (para 107 above) that this court should leave open the question of what enquiries an arbitrator should make about conflict of interests, the formulation in this subsection seems to me to be unexceptionable in principle, and it may be helpful guidance to arbitrators.
+I would add that the conclusion that as a matter of the law of England and Wales an arbitrator is to be treated as aware of a conflict of interest of which he is not actually aware would on the face of it take English and Wales beyond Scots law, which appears to require actual awareness (see para 112 above).
+That may confirm the wisdom of Parliament when it enacted the 1996 Act in leaving issues such as these to judicial development of the law rather than codifying them in legislation.
+By leaving them to judicial development, the common law of England and Wales can keep pace with change.
+It can take account of developing standards and expectations in international commercial arbitration in particular.
+The debate to which I have referred may account for any reticence in English arbitration law to referring to a duty to disclose but I have no doubt that the law of England and Wales is rigorous in its approach to arbitrator bias and conflicts of interest.
+Ensuring impartiality is a key principle of our arbitration law.
+Indeed, as there is force in the view expressed by Professor McKendrick and others that the courts must be especially mindful of the these issues in relation to arbitration where the proceedings take place in private and subject to strict obligations of confidentiality (Ewan McKendrick, chapter 4: Arbitrations, Multiple References and Apparent Bias: A Case Study of Halliburton Co v Chubb Bermuda Insurance Ltd (2018), in Axel Calissendorff and Patrik Schldstrom (eds), Stockholm Arbitration Yearbook 2019, Stockholm Arbitration Yearbook Series, Volume 1 (Kluwer Law International; Kluwer Law International (2019), pp 55 68, see further Paul Stanley QC, Haliburton v Chubb, 9 May 2018 at pp 4 6 and see Julia Dias QC Resignation in the Face of Confidentiality? (2020) TDM 2).
+I would urge caution in relation to the conclusion of the Court of Appeal (judgment para 77) that the mere acceptance of a multiple appointment in the sense described above did not give rise to an objective appearance of apparent bias.
+The Court of Appeal considered that, although there was a risk that an arbitrator might acquire inside information in the new arbitration, something more, which had to be something of substance, was required to establish apparent bias.
+In their judgment, an arbitrator could be trusted to decide a case solely on the evidence or other material before him in the reference in question (judgment, paras 51, 86).
+In my judgment, unless the arbitration is one in which there is an accepted practice of dispensing with any need to obtain parties consent to further appointments, an arbitrator should proceed on the basis that a proposal to take on a further appointment involving a common party and overlapping subject matter (in that it arises out of the same event) is likely to require disclosure of a potential conflict of interest.
+The fact that an arbitrator is to be trusted to decide the case on the evidence is not a complete answer to the objections based on inequality of arms and material asymmetry of information that have been raised by Halliburton (see paras 41 and 142 above).
+Moreover, as Paul Stanley QC points out at p 18 of the article already cited, this trust may not translate easily for the many parties to arbitrations who are familiar with different legal systems.
+The fact that section 24 of the 1996 Act (set out in para 50 above) requires the question of removal to be assessed at the date of the hearing (by when the materiality of the non disclosure may have changed) is to be attributed to the legislatures desire to hold the balance between the parties and to ensure that removal with all its consequences occurs only where the non disclosure has been material.
+It is understandable that the legislator would not wish section 24 to give rise to satellite litigation to upset awards that had been duly made.
+The balance struck in section 24 may also help to mitigate the risk of any shortage of experienced arbitrators of the parties choice due to difficulties in disclosing proposed appointments, but in fact there is no evidence that there is such a shortage.
+The balancing exercise is to be performed with commercial realities in mind, including the fact that parties who use arbitration must expect arbitrators to take further appointments to acquire the experience needed.
+On the other hand, those further appointments must be consistent with the arbitrators obligations in current arbitrations.
+Like Lord Hodge, I also attach considerable importance to the principles set out in section 1 of the 1996 Act (set out at para 47 above).
+It is unusual for Parliament to set out principles in this way.
+They are expressed to be foundational principles (The provisions of this Part of the Act are founded on the following principles ). (The provisions of the 1996 Act other than Part I contain a limited number of provisions, for example for the protection of consumers and enforcement, to which it would be inappropriate to apply the section 1 principles.) The section 1 principles must, therefore, guide the development of arbitration law.
+The second and third principles reinforce party autonomy in arbitration, which is an important, though naturally not unlimited, principle.
+Disclosure: rooted in both the contract of appointment and section 33
+I agree with Lord Hodge in basing the duty of disclosure in both the contract of appointment and section 33 of the 1996 Act.
+In my judgment, while section 33 must inform the terms of appointment of the arbitrator, this duty is also an implied term of his appointment (if indeed it is not express).
+An arbitrator on accepting appointment comes under a duty to all the parties to the arbitration to observe this duty throughout his or her appointment.
+In addition, in my judgment, in the possibly unlikely circumstance that he or she has not been asked for some express assurance prior to being appointed, it is to be implied into the appointment of an arbitrator that the arbitrator has no conflict of duty at the date of his appointment which either prevents him from acting at all, or renders him liable to be removed, in the latter case unless the parties have agreed to waive this conflict.
+Waiver requires properly informed consent, and thus disclosure of the conflict of interest.
+The contract of appointment gives rise to a contract with all the parties to the arbitration.
+By rooting the duty in both section 33 and the contract of appointment, there is a clear legal basis for Lord Hodges conclusion, with which I also agree, that the parties can agree to waive any objection to a conflict of interest.
+In theory at least they can also lay down the scope for the arbitrator to accept further arbitrations and the procedure which is to apply if he or she wishes to do so.
+The contract based approach also overcomes the problem, which the parties drew to our attention, that section 33 in terms applies only to the tribunal and not a proposing arbitrator.
+The term will thus apply to a person who accepts appointment in respect of interests that he or she acquired before appointment as well as to those he or she acquires later.
+I need not address the case of a person who is offered an appointment but does not subsequently take it up for whatever reason because the issues in this appeal are not concerned with that situation.
+There is a concern that the duty of disclosure carries no sanction if an application is made to the court about a non disclosure by the arbitrator and fails (see para 111 above).
+I think this misses the point.
+It would still be a breach of the terms of appointment with such consequences, if any, as the law of contract prescribes.
+In addition, a person may commit a breach of contract but incur no liability as a result, and the situation postulated falls into that category.
+Disclosure: not available with incompatible conflicts of interest
+I emphasise a point which Lord Hodge makes (see para 108 above) that disclosure is only an option if the conflict of interest is not one which would prevent the arbitrator from discharging his or her duty of impartiality in the current arbitration and therefore from acting altogether.
+Clearly, having accepted the first arbitration, he or she cannot then go on to accept a further arbitration in these circumstances.
+We are concerned with a situation in which he or she wishes to accept a further appointment but, as a matter of good practice and caution, wishes to place the possibility before the parties in case they considered that it created a conflict of interest which they were not prepared to waive (Lord Hodge makes a similar point at para 79 above).
+By parties, I mean the parties to the current arbitration and the parties to the proposed arbitration.
+Disclosure where more than one form of arbitration involved
+As a corollary, I would point out that the arbitrations that give rise to the potential conflict may be of different kinds.
+The current arbitration may be a Bermuda Form arbitration, but the second may be an ad hoc arbitration of a different kind.
+Differing from Lord Hodge, I find it difficult, therefore, to limit what is said in this case to Bermuda Form arbitrations (see, for example, para 104 above), as opposed to other ad hoc arbitrations or arbitrations held under institutional rules which make no relevant provision.
+Arbitrations under institutional rules, such as the rules of the LCIA, may involve their own rules as to disclosure of interests making it unnecessary to consider the position under the general law, and so for convenience and without underestimating their important role in international commercial arbitration I leave them on one side at this point.
+Disclosure of multiple appointments
+Like Lord Hodge I am considering only conflicts of interest which arise because an arbitrator is proposed to be appointed to a further arbitration in which one of the parties in the current arbitration is also a party and which arises out of the same event with the likelihood that the issues will be the same or similar (see, for example, para 61 above).
+Such an appointment is likely to give rise to a potential inequality of arms and material asymmetry of information.
+In principle the parties to both the current and proposed arbitration should be given a chance to object to the arbitrator accepting the new appointment.
+And if there is more than one current arbitration in which the conflict arises, there must if there is to be disclosure be disclosure to the parties in those arbitrations too.
+Confidentiality an important implied term
+There is an implied term as to confidentiality in an arbitration agreement which binds an arbitrator: see Ali Shipping Corpn v Shipyard Trogir [1999] 1 WLR 314 and cf Emmott v Michael Wilson & Partners Ltd [2008] EWCA Civ 184; [2008] Bus LR 1361, cited by Lord Hodge in para 83 above.
+Confidentiality is of great importance to the parties since it enables them to resolve their dispute without the glare of potentially commercially damaging publicity, which makes arbitration an attractive process of dispute resolution to commercial parties (see paras 57 and 83 above).
+The parties may even bolster the obligations to keep information confidential in the terms of the orders which they ask the arbitrators to make and in the arbitration agreement itself.
+Institutional rules applying to the arbitration may also make further provision as to the responsibilities of the parties and arbitrators in arbitrations governed by such rules.
+The Departmental Advisory Committees report (see para 57 above) emphasised the importance of confidentiality, and, to bring matters up to date, it is also emphasised in the submissions before us.
+Thus, for instance, the LMAA states: The LMAA believes that users of ad hoc maritime arbitration particularly value confidentiality.
+Any new general rule of English law requiring disclosure of confidential information against parties wishes runs a serious risk of undermining the attractiveness of London as the preeminent seat for maritime arbitration. (para 22)
+The implied term as to confidentiality is independent of the implied term that the arbitrator should comply with his impartiality duty.
+It is truly a self standing term so much so that the parties submissions at the hearing of this appeal did not include submissions as to the effect of disclosure on confidentiality obligations.
+Those submissions only came later when the parties and interveners helpfully provided further written submissions at the courts request.
+Not all information about an arbitration is confidential.
+Some information may, for instance, already be in the public domain.
+The principle of confidentiality was not codified in the 1996 Act (see para 85 above).
+This was because it was too difficult to reach a statutory formulation in the light of the myriad exceptions and the qualifications that would have to follow: see Department of Economics, Policy and Development of the City of Moscow v Bankers Trust Co [2004] EWCA Civ 314; [2005] QB 207, para 3.
+In those circumstances, the Departmental Advisory Committee concluded that the courts should continue to be left to work out the implications on a pragmatic case by case basis.
+The Court of Appeal considered that the disclosure which the arbitrator had to make had to be: regarded as being an exception to that duty, a duty which is recognised not to be absolute. (para 91)
+It is not clear whether the Court of Appeal were referring here to an existing exception or were creating a new exception.
+The current exceptions to confidentiality are most conveniently set out in the judgment of Lawrence Collins LJ, as he then was, with whom Carnwath and Thomas LJJ (as they then were) agreed in the Michael Wilson & Partners Ltd case.
+Lord Hodge sets out the relevant passage at para 85 of his judgment and so I need not set it out again.
+I am only concerned with the question of confidentiality of the high level disclosure described by Lord Hodge at para 146 above.
+That disclosure does not in my judgment fall within any of the existing exceptions to confidentiality listed by Lawrence Collins LJ.
+The disclosure of information arises to a material extent from the voluntary decision of the arbitrator to pursue a further appointment (see para 160 above), and, as a result of that, I do not consider that such disclosure can fall within the protection of legitimate interests.
+The LCIA suggests in parenthesis that the exceptions available to an arbitrating party extend by logical extension to the arbitrator but that would appear to be on the basis of the legitimate interests exception.
+There is no consent, no court order, and there is no public interest mandating disclosure because disclosure is driven by the arbitrators wish to take the further appointment.
+Moreover, neither the Court of Appeal nor the judge found that there was any custom as to what might be disclosed by an arbitrator or proposing arbitrator without the parties consent (as to what must be proved to show a custom, see generally Baker v Black Sea & Baltic General Insurance Co Ltd [1998] 1 WLR 974).
+So far as a practice which falls short of a custom is concerned, this would necessarily have to be incorporated into the terms on which the arbitrator agrees to act expressly or by implication.
+I, therefore, leave aside GAFTA and LMAA arbitrations as in those arbitrations there is said to be an accepted practice under which arbitrators may accept multiple appointments without the consent of the parties to existing arbitrations.
+Further, where the information is disclosed by a party on his behalf, then in the usual case that party may be taken to have consented to the disclosure of the information and to waive any confidentiality obligation owed to itself.
+That party cannot waive confidentiality obligations owed to the other parties.
+So, in my judgment, there is in general no need, as the Court of Appeal considered, to search for, or create, an exception to confidentiality for the information in the numbered list in para 146 above.
+The basic reason is that the other parties, who have not been asked to consent to the disclosure, have not been named.
+This conclusion is supported by commentaries cited by the parties (see, for example, Derains & Schwartz, A Guide to the ICC Rules of Arbitration, 2nd ed (2005), pp 135 136 n70 (Derains/Schwartz) It is generally possible, however, for arbitrators to disclose relationships relating to other arbitration proceedings in such a manner as to avoid infringing any obligations of confidentiality that may be owed to the parties in respect of the same.) Jeffrey Waincymer, Part II: The Process of an Arbitration, chapter 5: Selection, Challenge and Change of Arbitrators in Procedure and Evidence in International Arbitration at 313 (In most such cases a careful description of the nature of the previous event without identification of the parties ought to be enough to meet both obligations [disclosure and confidentiality] concurrently.).
+Mauro Rubino Sammartano, chapter 11 The Arbitrator in International Arbitration Law and Practice 3rd ed (2014), p 508 (citing in support Prodim, Court of Appeal, Reims, January 31, 2012, Lettre dinfo, Versailles, July 2012).
+In the first sentence of the preceding paragraph, I use the words in general.
+My reason is that there may be exceptional cases where the other parties (that is the parties other than the proposing appointor) can be identified even without being named, and in those circumstances their consent will be required to the making even of the high level disclosure.
+But it is not suggested that this qualification is relevant in this case.
+As to the high level disclosure, para 146 addresses the matters that might be included in disclosure to the parties to the first arbitration about a proposed appointment in a further arbitration without breaching confidentiality obligations owed to the parties in the second arbitration.
+It may be adapted for the converse situation.
+Paragraph 146 does not state that disclosure of the matters itemised in that paragraph will necessarily of itself be enough to discharge the duty of disclosure, only that such matters may be included without breaching a confidentiality obligation, or as I would say, as I have explained, may in general be included without breaching such obligation.
+On this basis, therefore, there is no question of the other parties confidentiality being eroded by the decision on this appeal.
+As Lord Hodge explains, if more information is required (or, I would add, at least if it is reasonably required), it cannot be disclosed without the relevant parties consent.
+If consent is not forthcoming, the arbitrator will have to decline the proposed appointment (see, for example, Derains/Schwartz at the passage cited).
+As Lord Hodge holds, the extent of the required disclosure will depend on the facts (see para 129 above, citing the IBA Guidelines).
+The parties to whom the high level disclosure is made may well ask for further information to enable them to assess whether they should agree to the arbitrator taking the further appointment.
+Julia Dias QC gives some assistance in her article cited above on the range of disclosure by explaining what she considers would be needed: whether there is in fact a real possibility of bias depends on matters such as the identity of the parties to the two arbitrations, the nature of the subject matter, the degree of overlap between the issues and the type of evidence adduced.
+The problem is that none of this can be explored without disclosing in the first arbitration matters relating to the second arbitration which in principle should be confidential to that arbitration.
+Indeed, it is impossible to see how the confidentiality of the second arbitration would not be compromised by the need to investigate whether there is an overlap between the two references in relation to subject matter, issues etc. (p 12)
+Conclusion
+In conclusion, with and subject to these further points I agree with the judgment of Lord Hodge.
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+This case is concerned with the right of a trader (in this case, Zipvit) to deduct input VAT due or paid by it on supplies of services to it by a supplier (in this case, Royal Mail), so far as those supplies are used for the traders own supplies of goods or services to an ultimate consumer.
+The issue arises in a specific set of circumstances.
+The general terms and conditions governing the supply contract between the supplier and the trader provided that the trader should pay the commercial price for the supply plus such amount of VAT (if any) as was chargeable in respect of the supply.
+As determined by a subsequent judgment of the Court of Justice, the supply should in fact have been treated as standard rated for VAT, so that the trader should have been charged VAT assessed at the relevant percentage of the commercial price for the supply.
+However, at the time of the supply both the supplier and the trader, acting in good faith and on the basis of a common mistake, understood that the supply was exempt from VAT, so the trader was only charged and only paid a sum equal to the commercial price for the supply.
+The invoices relating to the supplies in question denoted the supplies as exempt and hence indicated that no VAT was due in respect of them.
+The tax authorities (Her Majestys Revenue and Customs Commissioners, HMRC) made the same mistake in good faith.
+HMRC had inadvertently contributed to the mistake by the parties, by issuing tax guidance containing statements to the same effect.
+The effect of the mistake has been that the trader has only paid the amounts equivalent to the commercial price for each supply and there is now no prospect that it can be made to pay, or will pay, the additional amount equivalent to the VAT element of the total price (ie the commercial price plus the VAT due in respect of it) which ought to have been charged and paid in respect of such supplies.
+Likewise, the supplier has not accounted to HMRC for any VAT due or paid in respect of such supplies, and there is no prospect that it can now be made to account, or will account, to HMRC for such VAT.
+Notwithstanding this, the trader now maintains that under article 168(a) of the Principal VAT Directive (2006/112/EC the Directive) it is entitled as against HMRC to make a claim to deduct as input VAT the VAT due in respect of the supplies in question or a VAT element deemed by law to be included in the price charged by the supplier for each supply (and hence deemed by law to be VAT in fact paid in respect of such supply when the trader paid what the parties believed to be the commercial price of the supply).
+Against this, HMRC contend that in the circumstances of this case, on the proper interpretation of the Directive: (1) there is no VAT due or paid in respect of the supplies in question, so no claim can be made to recover input tax in relation to them, and/or (2) the invoices relating to the supplies in question did not show that VAT was due in respect of the supplies, and since the trader at no stage held invoices which showed that VAT was due and its amount, in compliance with article 226(9) and (10) of the Directive, for this reason also the trader is not entitled to recover input tax in relation to the supplies.
+The trader responds on point (1) that VAT must be treated as having been paid as part of the price (or as due) and on point (2) that all relevant facts are now known and it can prove by other means the amount of the VAT due or paid on each supply.
+The sums claimed by Zipvit as input VAT on the relevant supplies amount to 415,746 plus interest.
+The present proceedings are a test case in respect of supplies of services by Royal Mail where the same mistake was made.
+The court has been provided with estimates of between about 500m and 1 billion as the total value of the claims against HMRC.
+The factual background
+Royal Mail is the public postal service in the United Kingdom.
+Article 132(1)(a) of the Directive (and equivalent provisions which preceded it) provides that member states shall exempt the supply by the public postal services of services other than passenger transport and telecommunications services, and the supply of goods incidental thereto.
+In implementing this provision, Parliament and HMRC interpreted it as covering all postal services supplied by Royal Mail.
+The implementing national legislation, the Value Added Tax Act 1994 (VATA), contained a provision to this effect (Schedule 9, Group 3, paragraph 1) and HMRC issued guidance notes to the same effect.
+Zipvit carries on the business of supplying vitamins and minerals by mail order and used the services of Royal Mail.
+During the period 1 January 2006 to 31 March 2010, Royal Mail supplied Zipvit with a number of business postal services under contracts which had been individually negotiated with Zipvit.
+The present proceedings concern supplies of one such service, Royal Mails multimedia service (the services).
+The contract under which Royal Mail supplied the services incorporated Royal Mails relevant general terms of business which provided that all postage charges specified as payable by the customer (ie Zipvit) were exclusive of VAT, that the customer shall pay any VAT due on Postage and other charges at the appropriate rate, and that VAT shall be calculated and paid on [the commercial price of the services].
+Accordingly, insofar as VAT was due in respect of the supply of the services, the total price payable by Zipvit for such supply under the contract was the commercial price plus the VAT element.
+However, on the basis of the domestic legislation and guidance and the common mistaken view that the services were exempt from VAT, the invoices issued by Royal Mail to Zipvit in relation to the services were marked E for exempt, showed no sum attributable to VAT to be due, and charged Zipvit only the commercial price of the services.
+Zipvit duly paid to Royal Mail the sums set out in the invoices.
+Zipvit did not at the time of the supplies make any claim to recover input VAT in respect of them.
+Since Royal Mail understood the services to be exempt, and since it had set out no charge for VAT in its invoices, it did not account to HMRC for any sum relating to VAT in respect of the supply of the services.
+HMRC likewise believed the services to be exempt and did not expect or require Royal Mail to account to them for any such sum.
+Things proceeded in this way for several years, until the judgment of the Court of Justice of 23 April 2009 in R (TNT Post UK Ltd) v Revenue and Customs Comrs (Case C 357/07) EU:C:2009:248; [2009] ECR I 3025.
+The Court of Justice held that the postal services exemption applied only to supplies made by the public postal services acting as such, and did not apply to supplies of services for which the terms had been individually negotiated.
+On the basis of this interpretation of the Directive and its predecessor by the Court of Justice, in the relevant period the services in the present proceedings should have been treated as standard rated.
+Royal Mail should have charged Zipvit a total price for the supply of the services equal to the commercial price plus VAT at the relevant rate, and Royal Mail should have accounted to HMRC for that VAT element.
+As it was, however, Zipvit was not charged and did not pay that VAT element, and Royal Mail did not account to HMRC for any sum representing VAT in respect of the services.
+In the light of the TNT Post judgment, Zipvit made two claims against HMRC for deduction of input VAT in respect of the services by a procedure called voluntary disclosure: (i) on 15 September 2009 in the amount of 382,599 plus In the meantime, HMRC was making inquiries with Royal Mail to establish interest, in respect of input tax paid from the quarter ended 31 March 2006 (due after 1 April 2006) to the quarter ended 30 June 2009, and (ii) on 8 April 2010 in the amount of 33,147, relating to the periods to December 2009 and to March 2010.
+These claims were calculated on the basis that the prices actually paid for the supplies must be treated as having included a VAT element.
+precisely which of its services were affected by the TNT Post judgment.
+HMRC rejected Zipvits claims by letter dated 12 May 2010.
+This was on the basis that Zipvit had been contractually obliged to pay VAT in relation to the commercial price for the services, but it had not been charged VAT in the relevant invoices and had not paid that VAT element.
+After review, HMRC upheld that decision by letter dated 2 July 2010.
+At this time, the national limitation period of six years under section 5 of the Limitation Act 1980 for a contract claim by Royal Mail to claim the balance of the total price due to it in respect of the supply of the services (ie a sum equal to the amount of the VAT due in respect of such supply, calculated by reference to the commercial price of the services) had not expired.
+But issuing claims against all Royal Mails relevant customers affected by the TNT Post judgment, including Zipvit, would have been costly and administratively burdensome for Royal Mail and it had no commercial interest in doing this, and so did not pursue such claims.
+At this time, HMRC were within the time limits set out in section 73(6) and section 77(1) of VATA to issue assessments against Royal Mail for VAT in respect of at least some of the supplies of the services.
+However, HMRC considered that they should not issue such assessments because national law in the form of VATA had provided at the relevant time that the supply of the services was exempt and, moreover, Royal Mail had not in fact received from Zipvit the VAT due in respect of the supplies.
+Furthermore, HMRC considered that they had created an enforceable legitimate expectation on the part of Royal Mail that it was not required to collect and account for VAT in respect of the services, so that Royal Mail would have a good defence to any attempt to issue assessments against it to account for VAT in respect of the services.
+Zipvit appealed against HMRCs review decision to the First tier Tribunal (Tax Chamber).
+The hearing of the appeal took place on 14 and 15 May 2014.
+By this time, the limitation period for a contract claim by Royal Mail against Zipvit for the payment of the balance of the total price due for the supply of the services had expired in relation to the greater part of the supplies which had been made.
+HMRC were also largely if not entirely out of time to issue an assessment against Royal Mail, as noted in para 140 of the First tier Tribunals judgment.
+The First tier Tribunal held that the services were standard rated as a matter of EU law, as the judgment in TNT Post indicated, and that the postal service exemption in national law could and should be interpreted in the same way, so that the services were properly to be regarded as standard rated as a matter of national law.
+This is now common ground.
+The First tier Tribunal dismissed Zipvits appeal, in a judgment dated 3 July 2014.
+It held that HMRC had no enforceable tax claim against Royal Mail because Royal Mail had not in its VAT returns declared any VAT in respect of its supply of the services, had made no voluntary disclosure of underpaid VAT, had not issued any invoice showing the VAT as due, and HMRC had not assessed Royal Mail as liable to pay any VAT: para 137.
+In those circumstances there was no VAT due or paid by Royal Mail in respect of the supply of the services, for the purposes of article 168(a) of the Directive: paras 138 146.
+The question whether HMRC would have been prevented by principles of public law, including the principle of legitimate expectation, from issuing an assessment against Royal Mail was left to one side, as unnecessary for determination: paras 147 148.
+In any event, since Zipvit did not hold valid tax invoices in respect of the supply of the services, showing a charge to VAT, it had no right to claim deduction of such VAT as input tax: paras 149 153.
+Although HMRC have a discretion under national law to accept alternative evidence of payment of VAT in place of a tax invoice (under regulation 29(2) of the Value Added Tax Regulations 1995 (SI 1995/2518) regulation 29(2)), which they had omitted to consider in their decisions, the First tier Tribunal found that on due consideration whether to accept alternative evidence, HMRC would inevitably and rightly have decided in the exercise of their discretion not to accept Zipvits claim for a deduction of input VAT in respect of the services: paras 192 198.
+The important point in that regard was that repayment of notional input VAT to Zipvit in respect of the services would constitute an unmerited windfall for Zipvit: paras 189 and 195 198.
+Zipvit had in fact paid only the commercial price for the services, exclusive of any element of VAT, so repayment to it of a notional element of VAT in respect of the supply of those services would mean that in economic terms it would have received the services for considerably less than their true commercial value, and there was no good reason why HMRC should in their discretion dedicate large sums of public money to achieve such an unmeritorious benefit for Zipvit.
+Zipvit appealed.
+The Upper Tribunal (Tax Chamber) dismissed the appeal.
+Its reasoning on the due or paid issue (article 168(a) of the Directive) differed from that of the First tier Tribunal which was later disapproved by the Court of Appeal and is not now supported by HMRC.
+It is now common ground that due or paid means due or paid by the trader to the supplier.
+The Upper Tribunal upheld the First tier Tribunals decision on the invoice issue and on the question of the exercise of discretion under regulation 29(2).
+Zipvit appealed to the Court of Appeal.
+It was only in the Court of Appeal that the underlying factual position regarding the obligations of Zipvit under its contract with Royal Mail was finally fully investigated and the findings of fact in that respect set out above were made.
+These are now common ground.
+The Court of Appeal dismissed Zipvits appeal.
+After an extensive review of the case law of the Court of Justice in relation to the due or paid point as it arose in the light of the factual position regarding Zipvits contractual obligations, the Court of Appeal found that the position was not acte clair: [2018] 1 WLR 5729, para 86.
+However, the Court of Appeal reached the same conclusion as the Tribunals below on the invoice issue: paras 91 119.
+After reviewing the case law of the Court of Justice, the Court of Appeal held that it was a necessary precondition for Zipvit to be able to exercise any right of deduction of input VAT in respect of the services that it should be able to produce VAT invoices which showed that VAT had been charged in respect of the supplies of the services, in compliance with article 226(9) and (10) of the Directive, or supplementary evidence showing payment of the relevant tax by Royal Mail to HMRC, which Zipvit could not do: paras 113 115.
+The Court of Appeal agreed with the Tribunals below on the question of the exercise of discretion by HMRC under regulation 29(2): paras 116 117.
+If HMRC treated Zipvit as having paid input VAT in respect of the services, Zipvit would receive an unmerited windfall (uncovenanted bonus), by obtaining in effect a reduction in the commercial price it had had to pay for the services, paid for out of public funds, even though that VAT had not been paid into the public purse: para 116.
+The Court of Appeal considered the position regarding the invoice issue to be acte clair, so that no reference was required to the Court of Justice: para 119.
+The appeal to the Supreme Court
+Zipvit has now appealed to this court.
+Zipvit contends that it should succeed on both the due or paid issue and the invoice issue, including so far as necessary on the question of the exercise of discretion by HMRC under regulation 29(2).
+After full argument, the court has decided that neither the due or paid issue nor the invoice issue can be regarded as acte clair, and that a reference should be made to the Court of Justice to ask the questions set out at the end of this judgment.
+In brief outline, the parties submissions on the appeal are as follows.
+(1) The due or paid issue
+Article 168(a) of the Directive provides that a trader who is a taxable person has an entitlement to deduct from VAT which he is liable to pay the VAT due or paid in respect of supplies to him of goods or services, carried out or to be carried out by another taxable person.
+Zipvit contends that in the circumstances of this case, on each occasion when (although contractually liable for VAT in addition) it only paid the commercial price charged to it in Royal Mails invoice it (Zipvit) must be treated as having paid an element of VAT to be regarded as embedded in the sum paid.
+The sum charged by Royal Mail and paid by Zipvit should be treated as a total price comprising a (lesser) taxable amount and the VAT at standard rate on that taxable amount.
+Thus, if Royal Mail charged Zipvit 120 in an invoice for the services, that being the commercial price for the services, and Zipvit only paid that amount, then even though the invoice purported to say that the services were exempt from VAT, the taxable amount (within the meaning of articles 73 and 78 of the Directive) should (after the elapse of six months under article 90 and section 26A of VATA) be treated as having been only 100 and the additional 20 (assuming a 20% rate of VAT) should be treated as VAT, which Zipvit is now entitled to claim as input VAT relating to supplies made by it to its customers.
+This embedded VAT element of each payment constitutes VAT which has been paid, in the requisite sense, and thus falls within article 168(a).
+In support of this submission, Zipvit relies in particular on articles 73, 78 and 90 of the Directive (reflected in national law in sections 19(2) and 26A of VATA) and the judgment in Tulic v Agenia Naional de Administrare Fiscal (Joined Cases C 249/12 and C 250/12) EU:C:2013:722; [2013] BVC 547.
+Alternatively, even if the embedded element of VAT on which Zipvit relies is not to be regarded as having been paid for the purposes of article 168(a), VAT should be regarded as being due for the purposes of that provision, so that Zipvit is entitled to claim to deduct it as input VAT on that basis.
+To the extent that HMRC say that they cannot compel Royal Mail to account to them for VAT in respect of its supply of the services to Zipvit, that is HMRCs own fault (either because of their actions in creating any legitimate expectation or other defence on which Royal Mail could rely against enforcement action taken by HMRC it not being admitted that there is any such defence or by reason of allowing time to elapse so that they are now out of time to take enforcement action), and is not in any event a matter which can prevent Zipvit from relying on its entitlement under article 168(a) to deduct input VAT due or paid.
+Against these submissions, HMRC contend that in the circumstances of this case there is nothing in the Directive which requires or justifies the retrospective re writing of the commercial arrangements between Royal Mail and Zipvit, according to which the invoices from Royal Mail referred only to the commercial price to be paid by Zipvit for the services and Zipvit remained contractually obliged to pay Royal Mail an additional sum in respect of VAT at the standard rate in respect of that commercial price (as became clear only after the TNT Post judgment).
+As events transpired, Royal Mail did not issue further invoices to demand payment of that VAT; it could not be compelled to issue such further invoices (and is now out of time to do so, under the national law of limitation in relation to contract claims); it has not accounted to HMRC for any VAT in respect of the services (whether embedded VAT on a lower notional commercial price as referred to by Zipvit or VAT chargeable on the true commercial price); and HMRC could not take action to compel Royal Mail to account for any VAT in respect of the supply of the services (either for reasons of public law, including respect for the legitimate expectations of Royal Mail, or by reason of limitation).
+HMRC say that to allow Zipvit to claim an element of VAT notionally embedded in the payments it made to Royal Mail would be to re write history in an entirely theoretical manner divorced from reality, which is not required by any provision of the Directive.
+As the Tribunals and the Court of Appeal rightly found, it would mean that Zipvit gained an unmerited financial windfall at the expense of the taxpayer (and which would give it an advantage against its commercial competitors), which cannot be justified under the Directive.
+It would also produce a result which would violate the principle of neutrality which is fundamental to the Directive, in that the input VAT which Zipvit claims to deduct has never been paid into the public purse and Royal Mail would not have acted as collecting agent for the tax authorities in the manner required to give effect to that principle (relying in that regard, in particular, on the judgments in Elida Gibbs Ltd v Customs and Excise Comrs (Case C 317/94) [1997] QB 499, para 22, and in Minister Finansw v MDDP (Case C 319/12) [2014] STC 699, paras 41 43).
+HMRC submit that the present case is to be distinguished from the circumstances under consideration in Tulic.
+At para 37 of the judgment in that case, the Court of Justice expressly said that it was not dealing with the type of contractual arrangement which has been found to exist in this case.
+In a case where the contract between the supplier (Royal Mail) and the trader (Zipvit) obliges the trader to pay the commercial price for the services supplied plus a supplement covering the VAT due in respect of that commercial price, the case law indicates that on the proper interpretation of article 168(a) of the Directive VAT can only be regarded as having been paid when the VAT due in respect of the commercial price is actually paid, which it has not been here.
+The case law also indicates that VAT can only be regarded as being due when there is an enforceable claim to collect it from Zipvit and to ensure that it is passed on to the tax authorities, which there is not here.
+HMRC rely, in particular, on Vleclair SA v Ministre du budget, des comptes publics et de la rforme de lEtat (Case C 414/10) [2012] STC 1281; Volkswagen AG v Financn riaditelstvo Slovenskej republiky (Case C 533/16) EU:C:2017:823; [2018] BVC 15; and Biosafe Indstria de Reciclagens SA v Flexipiso Pavimentos SA (Case C 8/17) EU:C:2017:927; [2018] BVC 17.
+HMRC say that the case law does not suggest that the conduct of the tax authority is a relevant consideration in the application of the Directive in a case of this kind.
+Usually, in the absence of a declaration by the supplier or the presentation of tax invoices which comply with article 226(9) and (10), the tax authority will not know what supplies have been made and whether it is in a position to issue a tax assessment against the supplier.
+Further and in any event, there is nothing in the conduct of HMRC which could justify disregarding the principles of EU law referred to in this jurisprudence.
+As in the Volkswagen and Biosafe Indstria cases, the situation under review has arisen as a result of a simple mistake made in good faith by all of Zipvit, Royal Mail and HMRC.
+HMRC also rely on the principle that asymmetrical reliance on the Directive is not permitted, whereby a trader both takes advantage of an exemption in national law (which is not in fact authorised by the Directive) in relation to supplies and seeks to deduct input VAT in relation to those supplies.
+In that regard, HMRC refer in particular to the MDDP case.
+They contend that in substance Zipvit is seeking both to take advantage of the fact that national law mistakenly treated the supply of the services in this case as exempt and to rely on the Directive in support of its claim to deduct input VAT in relation to such supply, in breach of that principle.
+Zipvit denies this.
+(2) The invoice issue
+Zipvit submits that the case law of the Court of Justice indicates that there is an important difference between the substantive requirements to be satisfied for a claim for input tax (including those in article 168(a)) and the formal requirements which apply in relation to such a claim (including those in relation to the production of a VAT invoice in accordance with article 226).
+The approach is strict in relation to the substantive requirements, but departure from the formal requirements is permissible if alternative satisfactory evidence of the VAT which was paid or is due can be produced by the trader.
+Zipvit relies in particular on the judgments in Barlis 06 Investimentos Imobilirios e Tursticos SA v Autoridade Tributria e Aduaneira (Case C 516/14) [2016] BVC 43, SC Paper Consult SRL v Direcia Regional a Finanelor Publice Cluj Napoca (Case C 101/16) EU:C:2017:775; [2017] BVC 52 and Vdan v Agenia Naional de Administrare Fiscal (Case C 664/16) EU:C:2018:933.
+In this case, Zipvit contends that it has produced alternative satisfactory evidence of the VAT which was paid (in the form of the payment of embedded VAT which Zipvit contends was included in the price paid by it to Royal Mail) or which was due, since with the benefit of the judgment in the TNT Post case this can readily be worked out from the invoices which Royal Mail in fact sent to Zipvit together with an understanding of the contractual arrangements for the provision of the services to which the invoices related.
+HMRC could not, in the exercise of their discretion under regulation 29(2), refuse to accept the alternative evidence produced by Zipvit in support of its claim.
+Zipvit contends that the judgments in the Volkswagen and Biosafe Indstria cases do not have the significance for the invoice issue which HMRC say they have.
+According to Zipvit, the better explanation of the reasoning in those cases is that they were concerned to ensure that a trader should not be prevented from being able to give practical effect to its right to claim deduction of input VAT in circumstances where it had been misled by receipt of an invoice which purported to show that no VAT was due in respect of a supply.
+Against this, HMRC submit that the regime in the Directive for collection of VAT in accordance with the principle of neutrality requires particular importance to be attached to the requirements in article 226(9) and (10) regarding production of an invoice which shows that VAT is due in respect of a supply and in what amount.
+Under the VAT regime, several parties need to know these matters in order for the regime to function effectively; and the tax authorities need to be presented with invoices which deal properly with these requirements so that they can monitor the position and ensure that the supplier has properly accounted to them for the VAT charged.
+Therefore, according to HMRC, a valid claim for deduction of input tax cannot be made in the absence of a VAT invoice which satisfies these particular requirements.
+HMRC support the reasoning of the Court of Appeal.
+They also rely, in particular, on the Advocate Generals opinions and the judgments in the Volkswagen and Biosafe Indstria cases, which they contend support their submission that a valid claim for deduction of input VAT in respect of the supply of the services would have to be supported by a VAT invoice from Royal Mail which complied with article 226(9) and (10) of the Directive.
+Zipvit had never asked Royal Mail to send invoices charging it with the VAT due in respect of the commercial price charged for the supply of the services and evidently had no intention of asking for such invoices or of paying the charge for VAT which they would contain.
+Since Zipvit could not produce relevant VAT invoices in support of its claim to deduct input VAT in respect of the services, that claim must fail.
+There is nothing in EU law which can be relied on to impugn the conclusion of the Tribunals and the Court of Appeal regarding the exercise of HMRCs discretion under regulation 29(2).
+Copies of the provisions of national law referred to above are annexed to this reference.
+The reference to the Court of Justice
+In these circumstances, the court refers the following questions to the Court (1) Where (i) a tax authority, the supplier and the trader who is a taxable person misinterpret European VAT legislation and treat a supply, which is taxable at the standard rate, as exempt from VAT, (ii) the contract between the supplier and the trader stated that the price for the supply was exclusive of VAT and provided that if VAT were due the trader should bear the cost of it, (iii) the supplier never claims and can no longer claim the additional VAT due from the trader, and (iv) the tax authority cannot or can no longer (through the operation of limitation) claim from the supplier the VAT which should have been paid, is the effect of the Directive that the price actually paid is the combination of a net chargeable amount plus VAT thereon so that the trader can claim to deduct input tax under article 168(a) of the Directive as VAT which was in fact paid in respect of that supply? (2) Alternatively, in those circumstances can the trader claim to deduct input tax under article 168(a) of the Directive as VAT which was due in respect of that supply? (3) Where a tax authority, the supplier and the trader who is a taxable person misinterpret European VAT legislation and treat a supply, which is taxable at the standard rate, as exempt from VAT, with the result that the trader is unable to produce to the tax authority a VAT invoice which complies with article 226(9) and (10) of the Directive in respect of the supply made to it, is the trader entitled to claim to deduct input tax under article 168(a) of the Directive? (4) In answering questions (1) to (3): (a) is it relevant to investigate whether the supplier would have a defence, whether based on legitimate expectation or otherwise, arising under national law or EU law, to any attempt by the tax authority to issue an assessment requiring it to account for a sum representing VAT in respect of the supply? (b) is it relevant that the trader knew at the same time as the tax authority and the supplier that the supply was not in fact exempt, or had the same means of knowledge as them, and could have offered to pay the VAT which was due in respect of the supply (as calculated by reference to the commercial price of the supply) so that it could be passed on to the tax authority, but omitted to do so? of Justice:
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+As Lord Hewart CJ famously declared, in R v Sussex Magistrates, Ex p McCarthy [1924] 1 KB 256, 259, it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.
+That was in the context of an appearance of bias, but the principle is of broader application.
+With only a few exceptions, our courts sit in public, not only that justice be done but that justice may be seen to be done.
+But whereas in the olden days civil proceedings were dominated by the spoken word oral evidence and oral argument, followed by an oral judgment, which anyone in the court room could hear, these days civil proceedings generate a great deal of written material statements of case, witness statements, and the documents exhibited to them, documents disclosed by each party, skeleton arguments and written submissions, leading eventually to a written judgment.
+It is standard practice to collect all the written material which is likely to be relevant in a hearing into a bundle which may range from a single ring binder to many, many volumes of lever arch files.
+Increasingly, these bundles may be digitised and presented electronically, either instead of or as well as in hard copy.
+This case is about how much of the written material placed before the court in a civil action should be accessible to people who are not parties to the proceedings and how it should be made accessible to them.
+It is, in short, about the extent and operation of the principle of open justice.
+As Toulson LJ said, in R (Guardian News and Media Ltd) v City of Westminster Magistrates Court (Article 19 intervening) [2012] EWCA Civ 420; [2013] QB 618 (Guardian News and Media), at para 1: Open justice.
+The words express a principle at the heart of our system of justice and vital to the rule of law.
+The rule of law is a fine concept but fine words butter no parsnips.
+How is the rule of law itself to be policed? It is an age old question.
+Quis custodiet ipsos custodes who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process.
+Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse.
+The history of the case
+The circumstances in which this important issue comes before the court are unusual, to say the least.
+Cape Intermediate Holdings Ltd (Cape) is a company that was involved in the manufacture and supply of asbestos.
+In January and February 2017, it was the defendant in a six week trial in the Queens Bench Division before Picken J.
+The trial involved two sets of proceedings, known as the PL claims and the CDL claim, but only the PL claims are relevant to this appeal.
+In essence, these were claims brought against Cape by insurers who had written employers liability policies for employers.
+The employers had paid damages to former employees who had contracted mesothelioma in the course of their employment.
+The employers, through their insurers, then claimed a contribution from Cape on the basis that the employees had been exposed at work to asbestos from products manufactured by Cape.
+It was alleged that Cape had been negligent in the production of asbestos insulation boards; that it knew of the risks of asbestos and had failed to take steps to make those risks clear; indeed, that it obscured, understated and unfairly qualified the information that it had, thus providing false and misleading reassurance to employers and others.
+Cape denied all this and alleged that the employers were solely responsible to their employees, that it did publish relevant warnings and advice, and that any knowledge which it had of the risks should also have been known to the employers.
+Voluminous documentation was produced for the trial.
+Each set of proceedings had its own hard copy core bundle, known as Bundle C, which contained the core documents obtained on disclosure and some documents obtained from public sources.
+The PL core bundle amounted to over 5,000 pages in around 17 lever arch files.
+In addition, there was a joint Bundle D, only available on an electronic platform, which contained all the disclosed documents in each set of proceedings.
+If it was needed to refer to a document in Bundle D which was not in Bundle C, it could immediately be viewed on screen, and would then be included in hard copy in Bundle C.
+The intention was that Bundle C would contain all the documents referred to for the purpose of the trial, whether in the parties written and oral opening and closing submissions, or in submissions or evidence during the trial.
+After the trial had ended, but before judgment was delivered, the PL claims were settled by a consent order dated 14 March 2017 and sealed on 17 March 2017.
+The CDL claim was also settled a month later, before judgment.
+The Asbestos Victims Support Groups Forum UK (the Forum) is an unincorporated association providing help and support to people who suffer from asbestos related diseases and their families.
+It is also involved in lobbying and promoting asbestos knowledge and safety.
+It was not a party to either set of proceedings.
+On 6 April 2017, after the settlement of the PL claims, it applied without notice, under the Civil Procedure Rules, CPR rule 5.4C, which deals with third party access to the records of the court, with a view to preserving and obtaining copies of all the documents used at or disclosed for the trial, including the trial bundles, as well as the trial transcripts.
+This was because the Forum believed that the documents would contain valuable information about such things as the knowledge of the asbestos industry of the dangers of asbestos, the research which the industry and industry related bodies had carried out, and the influence which they had had on the Factory Inspectorate and the Health and Safety Executive in setting standards.
+In the Forums view, the documents might assist both claimants and defendants and also the court in understanding the issues in asbestos related disease claims.
+No particular case was identified but it was said that they would assist in current cases.
+That same day, the Master made an ex parte order designed to ensure that all the documents which were still at court stayed at court and that any which had been removed were returned to the court.
+She later ordered that a hard drive containing an electronic copy of Bundle D be produced and lodged at court.
+After a three day hearing of the application in October, she gave judgment in December, holding that she had jurisdiction, either under CPR rule 5.4C(2) or at common law, to order that a non party be given access to all the material sought.
+She ordered that Mr Dring (now acting for and on behalf of the Forum) should be provided with the hard copy trial bundle, including the disclosure documents in Bundle C, all witness statements, expert reports, transcripts and written submissions.
+She did not order that Bundle D be provided but ordered that it be retained at court.
+Cape appealed, inter alia, on the grounds that: (1) the Master did not have jurisdiction, either under CPR rule 5.4C or at common law, to make an order of such a broad scope; (2) to the extent that the court did have jurisdiction to grant access, she had applied the wrong test to the exercise of her discretion; and (3) in any event, she should have held that the Forum failed to meet the requisite test.
+The appeal was transferred to the Court of Appeal because of the importance of the issues raised.
+In July 2018, that court allowed Capes appeal and set aside the Masters order: [2018] EWCA Civ 1795; [2019] 1 WLR 479.
+It held that the records of the court for the purpose of the discretion to allow access under CPR rule 5.4C(2) were much more limited than she had held.
+They would not normally include trial bundles, trial witness statements, trial expert reports, trial skeleton arguments or written submissions; or trial transcripts.
+Nevertheless, the court had an inherent jurisdiction to permit a non party to obtain (i) witness statements of witnesses, including experts, whose statements or reports stood as evidence in chief at trial and which would have been available for inspection during the trial, under CPR rule 32.13; (ii) documents in relation to which confidentiality had been lost under CPR rule 31.22 and which were read out in open court, or the judge was invited to read in court or outside court, or which it was clear or stated that the judge had read; (iii) skeleton arguments or written submissions read by the court, provided that there is an effective public hearing at which these were deployed; and (iv) any specific documents which it was necessary for a non party to inspect in order to meet the principle of open justice.
+But there was no inherent jurisdiction to permit non parties to obtain trial bundles or documents referred to in skeleton arguments or written submissions, or in witness statements or experts reports, or in open court, simply on the basis that they had been referred to in the hearing.
+When exercising its discretion under CPR rule 5.4C(2) or the inherent jurisdiction, the court had to balance the non partys reasons for seeking disclosure against the partys reasons for wanting to preserve confidentiality.
+The court would be likely to lean in favour of granting access if the principle of open justice is engaged and the applicant has a legitimate interest in inspecting the documents.
+If the principle of open justice is not engaged, then the court would be unlikely to grant access unless there were strong grounds for thinking it necessary in the interests of justice to do so (paras 127 and 129).
+Accordingly, the court ordered, in summary: (i) that the court should provide the Forum with copies of all statements of case, including requests for further information and answers, apart from those listed in Appendix 1 to the order, so far as they were on the court file and for a fee, pursuant to the right of access granted by CPR rule 5.4C(1); (ii) that Cape should provide the Forum with copies of the witness statements, expert reports and written submissions listed in Appendix 2 to the order; and (iii) that the application be listed before Picken J (or failing him some other High Court Judge) to decide whether any other document sought by the Forum fell within (ii) or (iv) in para 9 above and if so whether Cape should be ordered to provide copies.
+Copying would be at the Forums expense.
+Cape was permitted to retrieve from the court all the documents and bundles which were not on the court file and the hard drive containing a copy of Bundle D.
+In making this order, the Court of Appeal proceeded on the basis that clean copies of the documents in question were available.
+Cape now appeals to this court.
+It argues, first, that the Court of Appeal should have limited itself to order (i) in para 11 above; second, that the Court of Appeal was wrong to equate the courts inherent jurisdiction to allow access to documents with the principle of open justice; the treatment of court documents is largely governed by the Civil Procedure Rules and the scope of any inherent jurisdiction is very limited; insofar as it goes any further than expressly permitted by the Rules, it extends only to ordering provision to a non party of copies of (a) skeleton arguments relied on in court and (b) written submissions made by the parties in the course of a trial (as held by the Court of Appeal in GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection and Indemnity Association Ltd (FAI General Insurance Co Ltd intervening) [1999] 1 WLR 984 (FAI)); and third, that the Court of Appeal was wrong to conclude that the Forum did have a relevant legitimate interest in obtaining access to the documents; the public interest in open justice was different from the public interest in the content of the documents involved.
+The Forum cross appeals on the ground that the Court of Appeal was wrong to limit the scope of CPR rule 5.4C in the way that it did.
+Any document filed at court should be treated as part of the courts records for that purpose.
+The default position should be to grant access to documents placed before a judge and referred to by a party at trial unless there was a good reason not to do so.
+It should not be limited by what the judge has chosen to read.
+The Media Lawyers Association has intervened in the appeal to this court.
+It stresses that the way in which most members of the public are able to scrutinise court proceedings is through media reporting.
+The media are the eyes and ears of the public.
+For this, media access to court documents is essential.
+The need often arises after the proceedings have ended and judgment has been given because that is when it is known that scrutiny is required.
+The media cannot be present at every hearing.
+It cites, among many other apposite quotations, the famous words of Jeremy Bentham, cited by Lord Shaw of Dunfermline in the House of Lords in Scott v Scott [1913] AC 417, the leading case on open justice, at p 477, Publicity is the very soul of justice.
+It is the keenest spur to exertion and the surest of all guards against improbity.
+It keeps the judge himself while trying under trial.
+The issues
+There are three issues in this important case: (1) What is the scope of CPR rule 5.4C(2)? Does it give the court power to order access to all documents which have been filed, lodged or held at court, as the Master ruled? Or is it more limited, as the Court of Appeal ruled? (2) Is access to court documents governed solely by the Civil Procedure Rules, save in exceptional circumstances, as the appellant argues? Or does the court have an inherent power to order access outside the Rules? (3) exercised? If there is such a power, how far does it extend and how should it be
+Civil Procedure Rules, rule 5.4C
+Rule 5.4C is headed Supply of documents to a non party from court records.
+For our purposes, the following provisions are relevant: (1) The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of (a) a statement of case, but not any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it; (b) a judgment or order given or made in public (whether made at a hearing or without a hearing), (2) A non party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person.
+By rule 2.3(1), statement of case (a) means a claim form, particulars of claim where these are not included in a claim form, defence, Part 20 claim, or reply to defence, and (b) includes any further information in relation
+to them voluntarily or by court order
+There are thus certain documents to which a non party has a right of access (subject to the various caveats set out in the rule which need not concern us) and what looks at first sight like a very broad power to allow a non party to obtain copies of any other document filed by a party, or communication between the court and a party or other person.
+Hence the Forum argues that the test is filing.
+CPR rule 2.3 provides that filing in relation to a document means delivering it by post or otherwise to the court office.
+So, it is argued, any document which has been delivered to the court office has been filed and the court may give permission for a non party to obtain a copy.
+There are two problems with this argument.
+First, the fact that filing is to be achieved in a particular way does not mean that every document which reaches court in that same way has been filed: the famous fallacy of the undistributed middle.
+The second is that the copy is to be obtained from the records of the court.
+The Civil Procedure Rules do not define the records of the court.
+They do not even provide what the records of the court are to contain.
+Nor, so far as we are aware, does any other legislation.
+The Public Records Act 1958 is not much help.
+It only tells us which records are public records and what is to be done with them.
+The person responsible for public records must make arrangements to select those which ought to be permanently preserved and for their transfer to the Public Record Office no later than 20 years after their creation (section 3).
+The Lord Chancellor is the person responsible for many court records, including those of the High Court and Court of Appeal (section 8).
+Section 10 and Schedule 1 define what is meant by a public record.
+Paragraph 4 of Schedule 1 includes the records of or held in the Senior Courts (ie the High Court and Court of Appeal) in the list of records of courts and tribunals which are public records.
+We have been shown a document prepared by Her Majestys Courts and Tribunals Service and the Ministry of Justice, headed Record Retention and Disposition Schedule.
+This lists how long various categories of files and other records are to be kept.
+Queens Bench Division files, for example, are to be destroyed after seven years.
+Trial bundles are to be destroyed if not collected by the parties at the end of the hearing or on a date agreed with the court.
+This is of no help in telling us what the court files should contain.
+We have been shown various historical sources which indicate what the records of certain courts may from time to time have contained, but it is clear that practice has varied.
+Some indication of what the court records may currently contain is given by Practice Direction 5A, para 4.2A of which lists the documents which a party may obtain from the records of the court unless the court orders otherwise.
+These include a claim form or other statement of case together with any documents filed with or attached to or intended by the claimant to be served with such claim form; an acknowledgement of service together with any documents filed with or attached to or intended by the party acknowledging service to be served with such acknowledgement of service; an application notice, with two exceptions, and any written evidence filed in relation to an application, with the same two exceptions; a judgment or order made in public (whether made at a hearing or without a hearing); and a list of documents.
+It does not include witness statements for trial, experts reports for trial, transcripts of hearings, or trial bundles.
+The essence of a record is that it is something which is kept.
+It is a permanent or long term record of what has happened.
+The institution or person whose record it is will decide which materials need to be kept for the purposes of that institution or person.
+Practice may vary over time depending on the needs of the institution.
+What the court system may have found it necessary or desirable to keep in the olden days may be different from what it now finds it necessary or desirable to keep.
+Thus one would expect that the court record of any civil case would include, at the very least, the claim form and the judgments or orders which resulted from that claim.
+One would not expect that it would contain all the evidence which had been put before the court.
+The court itself would have no need for that, although the parties might.
+Such expectations are confirmed by the list in Practice Direction 5A.
+The records of the court must therefore refer to those documents and records which the court itself keeps for its own purposes.
+It cannot refer to every single document generated in connection with a case and filed, lodged or kept for the time being at court.
+It cannot depend upon how much of the material lodged at court happens still to be there when the request is made.
+However, current practice in relation to what is kept in the records of the court cannot determine the scope of the courts power to order access to case materials in particular cases.
+The purposes for which court records are kept are completely different from the purposes for which non parties may properly be given access to court documents.
+The principle of open justice is completely distinct from the practical requirements of running a justice system.
+What is required for each may change over time, but the reasons why records are kept and the reasons why access may be granted are completely different from one another.
+Other court rules
+There are other court rules which are relevant to the access to documents which may be granted to non parties.
+CPR, rule 39.2 lays down the general rule that court hearings are to be in public.
+Rule 39.9 provides that in any hearing the proceedings will be recorded.
+Any party or other person may require a transcript (for which there will be a fee).
+If the hearing was in private, a non party can get a transcript but only if the court so orders.
+A Practice Direction (Audio Recordings of Proceedings: Access) [2014] 1 WLR 632 states that there is generally no right for either a party or a non party to listen to the recording.
+If they have obtained a copy of the transcript, they can apply for permission to listen, but this will only be granted in exceptional circumstances, save to official law reporters.
+Nevertheless, the effect of rule 39.9 (which is wider than its predecessor) is that a non party can (at a fee) obtain a transcript of everything that was said in court.
+Rule 39.5 requires the claimant to file a trial bundle and Practice Direction 32, para 27.5, deals in detail with how these are to be prepared.
+Nothing is said about non parties being granted access to them.
+Rule 32 deals with evidence.
+If a witness who has made a witness statement is called to give evidence, the witness statement shall stand as his evidence in chief (rule 32.5(2)).
+A witness statement which stands as evidence in chief is open to inspection unless the court otherwise directs during the course of the trial (rule 32.13(1)).
+The considerations which might lead the court otherwise to direct are listed as the interests of justice, the public interest, the nature of expert medical evidence, the nature of confidential information, and the need to protect a child or protected person (rule 32.13(3)).
+Rule 32.13 recognises that the modern practice of treating a witness statement as evidence in chief (which dates back to the Report of the Review Body on Civil Justice (1988, Cm 394)) means that those observing the proceedings in court will not know the content of that evidence unless they can inspect the statement.
+The rule puts them back into the position they would have been in before that practice was adopted.
+In FAI, FAI applied to inspect and obtain: copies of documents referred to in witness statements which they had obtained under the predecessor to rule 32.13 (Rules of the Supreme Court, Order 39, rule 2A); any written opening, skeleton argument or submissions, to which reference was made by the judge, together with any documents referred to in them; and any document which the judge was specifically requested to read, which was included in any reading list, or which was read or referred to during trial.
+The Court of Appeal held that RSC Order 38, rule 2A, the predecessor to CPR, rule 5.4C(2), did not cover documents referred to in witness statements.
+The purpose of using witness statements was to encourage a cards on the table approach, to accelerate the disclosure of the parties evidence as between themselves; it was not to enable non parties to obtain access to documentation which would otherwise have been unavailable to them whether or not they had attended court.
+As to the inherent jurisdiction of the court, based on the principle of open justice, the same reasoning applied to documents referred to in court or read by the judge, unless they had been read out in court and thus entered the public domain.
+Written submissions or skeleton arguments were a different matter.
+The confidence of the public in the integrity of the judicial process must depend upon having an opportunity to understand the issues.
+Until recently this had been done in an opening speech, but if the public were deprived of that opportunity by a written opening or submissions which were not read out, it was within the inherent jurisdiction of the court to require that a copy be made available.
+Nevertheless, the court did observe, having referred to Lord Woolfs report, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (July 1996) that It is of great importance that the beneficial saving in time and money which it is hoped to bring about by such new procedures should not erode the principle of open justice (p 997).
+Lybrand [2000] 1 WLR 2353, para 43, he said this: Indeed, Lord Woolf himself took the same view.
+In Barings plc v Coopers & As a matter of basic principle the starting point should be that practices adopted by the courts and parties to ensure the efficient resolution of litigation should not be allowed to adversely affect the ability of the public to know what is happening in the course of the proceedings.
+In this case, the Court of Appeal largely adopted the approach in FAI, while recognising that in certain respects the law had been developed.
+First, it was now apparent that the court had inherent jurisdiction to allow access to all parties skeleton arguments, not just the opening submissions, provided there was an effective public hearing at which they were deployed (see Law Debenture Trust Corpn (Channel Islands) Ltd v Lexington Insurance Co [2003] EWHC 2297 (Comm); (2003) NLJ 1551), and the same would apply to other advocates documents provided to the court to assist its understanding of the case, such as chronologies, dramatis personae, reading lists and written closing submissions (para 92).
+Second, although CPR rule 32.13 is limited to access during the trial, there was no reason why access to witness statements taken as evidence in chief should not be allowed under the inherent jurisdiction after the trial (para 95).
+Third, what applies to witness statements should also apply to experts reports which are treated as their evidence in chief (para 96).
+This did not extend to documents exhibited to witness statements or experts reports unless it was not possible to understand the statement or report without sight of a particular document (para 100).
+Finally, developments since FAI also meant that it was within the inherent jurisdiction to allow access to documents read or treated as read in open court (para 107).
+This should be limited to documents which are read out in open court; documents which the judge is invited to read in open court; documents which the judge is specifically invited to read outside court; and documents which it is clear or stated that the judge has read (para 108).
+These were all documents which were likely to have been read out in open court had the trial been conducted orally.
+Furthermore, the rule that parties may only use documents obtained on disclosure for the purpose of the proceedings in which they are disclosed does not apply to documents which have been read to or by the court, or referred to, at a hearing which has been held in public unless the court prohibits or limits their use (CPR rule 31.22).
+However, the mere fact that a document had been referred to in court did not mean that it would have been read out had the trial been conducted wholly orally or that sight of it is necessary in order to understand or scrutinise the proceedings (para 109).
+So, as in FAI, the court did not consider that the inherent jurisdiction extended to granting access simply on the basis that it has been referred to in open court (para 109).
+The decisions of the Court of Appeal in FAI and in this case are not the only cases in which the courts have accepted that they have an inherent jurisdiction to allow access to materials used in the course of court proceedings and that the rationale for doing so is the constitutional principle of open justice.
+That this is so is made even plainer by some recent cases of high authority.
+The principle of open justice
+The Court of Appeal had the unenviable task of trying to reconcile the very different approaches taken by that court in FAI and Guardian News and Media.
+This court has the great advantage of being able to consider the issues from the vantage point of principle rather than the detailed decisions which have been reached by the courts below.
+There can be no doubt at all that the court rules are not exhaustive of the circumstances in which non parties may be given access to court documents.
+They are a minimum and of course it is for a person seeking to persuade the court to allow access outside the rules to show a good case for doing so.
+However, case after case has recognised that the guiding principle is the need for justice to be done in the open and that courts at all levels have an inherent jurisdiction to allow access in accordance with that principle.
+Furthermore, the open justice principle is applicable throughout the United Kingdom, even though the court rules may be different.
+This was plainly recognised in Guardian News and Media.
+A District Judge had ordered two British citizens to be extradited to the USA.
+The Guardian newspaper applied to the District Judge to inspect and take copies of affidavits, witness statements, written arguments and correspondence, supplied to the judge for the purpose of the extradition hearings, referred to during the course of the hearings but not read out in open court.
+The judge held that she had no power to allow this and the Divisional Court agreed.
+In a comprehensive judgment, Toulson LJ, with whom both Hooper LJ and Lord Neuberger MR agreed, held that she did.
+The requirements of open justice applied to all tribunals exercising the judicial power of the state.
+The fact that magistrates courts were created by statute was neither here nor there (para 70).
+The decisions of the House of Lords in Scott v Scott [1913] AC 417, and of the Court of Appeal in FAI, and R v Howell [2003] EWCA Crim 486 respectively a family, civil and criminal case were illustrations of the jurisdiction of the court to decide what open justice required (para 71).
+Hence the principles established in Guardian News and Media cannot be confined to criminal cases.
+They were clearly meant to apply across the board.
+Nor has anyone suggested why the jurisdiction in criminal cases should be wider than that in civil.
+More to the point, they have since been approved by this court.
+So what were those principles? The purpose of open justice is not simply to deter impropriety or sloppiness by the judge hearing the case.
+It is wider.
+It is to enable the public to understand and scrutinise the justice system of which the courts are the administrators (para 79).
+The practice of the courts was not frozen (para 80).
+In FAI, for example, issues of informing the public about matters of general public interest did not arise (para 81).
+In earlier cases, it had been recognised, principally by Lord Scarman and Lord Simon of Glaisdale (dissenting) in Home Office v Harman [1983] 1 AC 280, 316, and by Lord Bingham in SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498, p 512, that the practice of receiving evidence without its being read in open court has the side effect of making the proceedings less intelligible to the press and the public.
+Lord Bingham had contemplated that public access to documents referred to in open court might be necessary to avoid too wide a gap between what has in theory, and what has in practice, passed into the public domain.
+The time had come to acknowledge that public access to documents referred to in open court was necessary (para 83).
+Requiring them to be read out would be to defeat the purpose of making hearings more efficient.
+Stating that they should be treated as if read out was merely a formal device for allowing access.
+It was unnecessary.
+Toulson LJ was unimpressed by the suggestion that there would be practical problems, given that the Criminal Procedure Rules 2011, in rule 5.8, provided, not only that there was certain (limited) information about a criminal case which the court officer was bound to supply, but also that, if the court so directs, the officer could supply other information about the case orally and allow the applicant to inspect or copy a document containing information about the case (para 84).
+But it was the common law, not the rule, which created the courts power; the rule simply provided a practical procedure for implementing it.
+Hence [i]n a case where documents have been placed before a judge and referred to in the course of proceedings the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose the case for allowing it will be particularly strong.
+In evaluating the grounds for opposing access, the court would have to carry out a fact specific proportionality exercise.
+Central to the courts evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others (para 85).
+The principles laid down in Guardian News and Media were clearly endorsed by the majority of the Supreme Court in Kennedy v Charity Commission (Secretary of State for Justice intervening) [2014] UKSC 20; [2015] AC 455: see Lord Mance, at para 47, Lord Toulson, with whom Lord Neuberger and Lord Clarke agreed, at paras 110 to 118, Lord Sumption who agreed with both Lord Mance and Lord Toulson, at para 152.
+Nor did the minority cast doubt upon the decision: see Lord Wilson, para 192; Lord Carnwath, 236.
+The principles were also endorsed by a unanimous Supreme Court in A v British Broadcasting Corpn (Secretary of State for the Home Department intervening) [2014] UKSC 25; [2015] AC 588, a case emanating from Scotland: see Lord Reed, with whom Lady Hale, Lord Wilson, Lord Hughes and Lord Hodge agreed, at paras 23 27.
+That case was concerned with the exceptions to the open justice principle, in particular to the naming of a party to the proceedings, and Lord Reed expressly adopted the test laid down in Kennedy, at para 41, which was a direct citation from Guardian News and Media, at para 85: Whether a departure from the principle of open justice was justified in any particular case would depend on the facts of that case.
+As Lord Toulson JSC observed in Kennedy v Information Comr (Secretary of State for Justice intervening) [2015] AC 455, para 113, the court has to carry out a balancing exercise which will be fact specific.
+Central to the courts evaluation will be the purpose of the open justice principle, the potential value of the information in question in advancing that purpose and, conversely, any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others.
+It follows that there should be no doubt about the principles.
+The question in
+any particular case should be about how they are to be applied.
+Discussion
+The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state.
+It follows that, unless inconsistent with statute or the rules of court, all courts and tribunals have an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court or tribunal in question.
+The extent of any access permitted by the courts rules is not determinative (save to the extent that they may contain a valid prohibition).
+It is not correct to talk in terms of limits to the courts jurisdiction when what is in fact in question is how that jurisdiction should be exercised in the particular case.
+The principal purposes of the open justice principle are two fold and there may well be others.
+The first is to enable public scrutiny of the way in which courts decide cases to hold the judges to account for the decisions they make and to enable the public to have confidence that they are doing their job properly.
+In A v British Broadcasting Corpn, Lord Reed reminded us of the comment of Lord Shaw of Dunfermline, in Scott v Scott [1913] AC 417, 475, that the two Acts of the Scottish Parliament passed in 1693 requiring that both civil and criminal cases be heard with open doors, bore testimony to a determination to secure civil liberties against the judges as well as against the Crown (para 24).
+But the second goes beyond the policing of individual courts and judges.
+It is to enable the public to understand how the justice system works and why decisions are taken.
+For this they have to be in a position to understand the issues and the evidence adduced in support of the parties cases.
+In the olden days, as has often been said, the general practice was that all the argument and the evidence was placed before the court orally.
+Documents would be read out.
+The modern practice is quite different.
+Much more of the argument and evidence is reduced into writing before the hearing takes place.
+Often, documents are not read out.
+It is difficult, if not impossible, in many cases, especially complicated civil cases, to know what is going on unless you have access to the written material.
+It was held in Guardian News and Media that the default position is that the public should be allowed access, not only to the parties written submissions and arguments, but also to the documents which have been placed before the court and referred to during the hearing.
+It follows that it should not be limited to those which the judge has been asked to read or has said that he has read.
+One object of the exercise is to enable the observer to relate what the judge has done or decided to the material which was before him.
+It is not impossible, though it must be rare, that the judge has forgotten or ignored some important piece of information which was before him.
+If access is limited to what the judge has actually read, then the less conscientious the judge, the less transparent is his or her decision.
+However, although the court has the power to allow access, the applicant has no right to be granted it (save to the extent that the rules grant such a right).
+It is for the person seeking access to explain why he seeks it and how granting him access will advance the open justice principle.
+In this respect it may well be that the media are better placed than others to demonstrate a good reason for seeking access.
+But there are others who may be able to show a legitimate interest in doing so.
+As was said in both Kennedy, at para 113, and A v British Broadcasting Corpn, at para 41, the court has to carry out a fact specific balancing exercise.
+On the one hand will be the purpose of the open justice principle and the potential value of the information in question in advancing that purpose.
+On the other hand will be any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others.
+There may be very good reasons for denying access.
+The most obvious ones are national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality.
+In civil cases, a party may be compelled to disclose documents to the other side which remain confidential unless and until they are deployed for the purpose of the proceedings.
+But even then there may be good reasons for preserving their confidentiality, for example, in a patent case.
+Also relevant must be the practicalities and the proportionality of granting the request.
+It is highly desirable that the application is made during the trial when the material is still readily available, the parties are before the court and the trial judge is in day to day control of the court process.
+The non party who seeks access will be expected to pay the reasonable costs of granting that access.
+People who seek access after the proceedings are over may find that it is not practicable to provide the material because the court will probably not have retained it and the parties may not have done so.
+Even if they have, the burdens placed on the parties in identifying and retrieving the material may be out of all proportion to benefits to the open justice principle, and the burden placed upon the trial judge in deciding what disclosure should be made may have become much harder, or more time consuming, to discharge.
+On the other hand, increasing digitisation of court materials may eventually make this easier.
+In short, non parties should not seek access unless they can show a good reason why this will advance the open justice principle, that there are no countervailing principles of the sort outlined earlier, which may be stronger after the proceedings have come to an end, and that granting the request will not be impracticable or disproportionate.
+It is, however, appropriate to add a comment about trial bundles.
+Trial bundles are now generally required.
+They are compilations of copies of what are likely to be the relevant materials the pleadings, the parties submissions, the witness statements and exhibits, and some of the documents disclosed.
+They are provided for the convenience of the parties and the court.
+To that end, the court, the advocates and others involved in the case may flag, mark or annotate their copies of the bundle as an aide memoire.
+But the bundle is not the evidence or the documents in the case.
+There can be no question of ordering disclosure of a marked up bundle without the consent of the person holding it.
+A clean copy of the bundle, if still available, may in fact be the most practicable way of affording a non party access to the material in question, but that is for the court hearing the application to decide.
+Application to this case
+Cape argues that the Court of Appeal did not have jurisdiction to make the order that it did, not that if it did have jurisdiction the order was wrong in principle.
+The Forum argues that the court should have made a wider order under CPR rule 5.4C(2).
+Both are, in our view, incorrect.
+The Court of Appeal not only had jurisdiction to make the order that it did, but also had jurisdiction to make a wider order if it were right so to do.
+On the other hand, the basis of making any wider order is the inherent jurisdiction in support of the open justice principle, not the Civil Procedure Rules, CPR rule 5.4C(2).
+The principles governing the exercise of that jurisdiction are those laid down in Guardian News and Media, as explained by this court in Kennedy, A v British Broadcasting Corpn and this case.
+In those circumstances, as the Court of Appeal took a narrower view, both of the jurisdiction and the applicable principles, it would be tempting to send the whole matter back to a High Court judge, preferably Picken J, so that he can decide it on the basis of the principles enunciated by this court.
+However, Cape has chosen to attack the order made by the Court of Appeal, not on its merits, but on a narrow view of the courts jurisdiction.
+Nor has it set up any counter vailing rights of its own.
+In those circumstances, there seems no realistic possibility of the judge making a more limited order than did the Court of Appeal.
+We therefore order that paras 4 and 7 of the Court of Appeal order (corresponding to points (i) and (ii) in para 11 above) stand.
+But we would replace paragraph 8 (corresponding with point (iii)) with an order that the application be listed before Picken J (or, if that is not possible, another High Court Judge) to determine whether the court should require the appellant to provide a copy of any other document placed before the judge and referred to in the course of the trial to the respondent (at the respondents expense) in accordance with the principles laid down by this court.
+Postscript
+We would urge the bodies responsible for framing the court rules in each part of the United Kingdom to give consideration to the questions of principle and practice raised by this case.
+About the importance and universality of the principles of open justice there can be no argument.
+But we are conscious that these issues were raised in unusual circumstances, after the end of the trial, but where clean copies of the documents were still available.
+We have heard no argument on the extent of any continuing obligation of the parties to co operate with the court in furthering the open justice principle once the proceedings are over.
+This and the other practical questions touched on above are more suitable for resolution through a consultative process in which all interests are represented than through the prism of an individual case.
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+London Clubs Management Ltd (LCM) operates casinos where games such as blackjack, punto banco and American roulette are played.
+The questions to which this appeal gives rise concern the correct treatment for gaming duty purposes of non negotiable gaming chips and free bet vouchers which are provided free of charge by LCM and some other casino operators to selected gamblers to encourage them to gamble in their casinos.
+Gaming duty is an excise duty which was introduced by the Finance Act 1997 (the FA 1997).
+Section 10(1) provides that the duty is charged in accordance with section 11 on any premises where dutiable gaming takes place.
+It is accepted that the gaming at issue in this appeal is dutiable gaming for which LCM, as the provider of the casino premises where it takes place, is liable.
+The amount of gaming duty payable is calculated by applying the relevant rate of gaming duty to the gross gaming yield from the casino premises during a specified accounting period.
+Section 11(8) provides that the gross gaming yield consists of the aggregate of gaming receipts and bankers profits for that period: the gaming receipts for that period from those premises; (a) and (b) where a provider of the premises (or a person acting on his behalf) is banker in relation to any dutiable gaming taking place on those premises in that period, the bankers profits for that period from that gaming.
+Gaming receipts are defined by section 11(9), which reads, so far as
+relevant: For the purposes of subsection (8) above the gaming receipts for an accounting period from any premises are the receipts in that period from charges made in connection with any dutiable gaming which has taken place on the premises other than (b) any charge the payment of which confers no more than an entitlement to admission to the premises.
+Bankers profits were, at the relevant time, 1 October 2008 to 30 September 2012, defined by section 11(10) as the amount by which the value in money or moneys worth of the stakes staked exceeded the value of the prizes provided by the banker: In subsection (8) above the reference to the bankers profits from any gaming is a reference to the amount (if any) by which the value specified in paragraph (a) below exceeds the value specified in paragraph (b) below, that is to say (a) the value, in money or moneys worth, of the stakes staked with the banker in any such gaming; and the value of the prizes provided by the banker to (b) those taking part in such gaming otherwise than on behalf of a provider of the premises.
+Section 11(10A), which has had effect since 1 September 2007, addresses the
+valuation of prizes: Subsections (2) to (6)(a) of section 20 of the Betting and Gaming Duties Act 1981 (expenditure on bingo winnings: valuation of prizes) apply, with any necessary modifications, for the purposes of gaming duty as they apply for the purposes of bingo duty.
+Section 20 of the Betting and Gaming Duties Act 1981 (the BGDA) says,
+so far as relevant: (2) Where a prize is obtained by the promoter from a person not connected with him, the cost to the promoter shall be treated as the value of the prize for the purpose of subsection (1). (3) Where a prize is a voucher which (a) may be used in place of money as whole or partial payment for benefits of a specified kind obtained from a specified person, (b) in place of which the voucher may be used, and (c) does not fall within subsection (2), specifies an amount as the sum or maximum sum the specified amount is the value of the voucher for the purpose of subsection (1). (4) Where a prize is a voucher (whether or not it falls within subsection (2)) it shall be treated as having no value for the purpose of subsection (1) if (a) it does not satisfy subsection (3)(a) and (b), or (b) its use as described in subsection (3)(a) is subject to a specified restriction, condition or limitation which may make the value of the voucher to the recipient significantly less than the amount mentioned in subsection (3)(b).
+The facts
+The relevant facts are not in dispute and are very straightforward.
+Normal cash chips are either purchased by gamblers for cash or won on a winning bet.
+They are replayable at the gaming tables until they are lost, or they may be used to buy goods or services, or they may be encashed.
+Non negotiable chips are provided to selected gamblers as a promotional tool.
+They have some of the characteristics of normal cash chips.
+In particular, they may be used to place bets at the gaming tables and they are replayable until they are lost.
+If the gambler wins, the banker pays out the winnings in cash chips and the gambler retains the non negotiable chips and may use them to place further bets.
+There are important differences between non negotiable chips and cash chips, however.
+First and as I have mentioned, they are not purchased for cash but are provided free of charge.
+Secondly, they cannot be used to buy goods or services, nor can they be encashed.
+They can be used to place bets and that is all.
+Thirdly, when a gambler loses a bet placed with non negotiable chips, the banker places them in the tables drop box which is a secure box under the gaming table.
+In contrast (with the exception of tips), cash chips are not placed in the drop box.
+Rather, when a gambler loses a bet placed with cash chips, the chips are placed in the chip float, a tray which rests in front of the banker and contains the casinos chips.
+Fourthly, non negotiable chips are physically distinguishable from cash chips.
+The face of each non negotiable chip is clearly marked non negotiable.
+Free bet vouchers are printed paper vouchers which are also provided to selected gamblers as a promotional tool.
+There are several different types.
+Free play vouchers or replayable vouchers can be used in just the same way as non negotiable chips.
+If the gambler loses the bet, they are placed in the drop box.
+If the gambler wins the bet, the winnings are paid to him in cash chips and the voucher is returned to him and may be used to place further bets.
+One hit vouchers can only be used to place a single bet, regardless of whether the gambler wins or loses.
+Once the voucher has been played, the dealer puts it in the drop box.
+If the gambler has won the bet, his winnings are paid in the form of cash chips.
+If he loses the bet, he receives nothing.
+Cash match vouchers operate in a similar way to one hit vouchers, except that a gambler must first place a bet with cash chips in order to use a cash match voucher of the same value.
+Finally, there are free gaming chips vouchers.
+They may be exchanged for non negotiable chips at the casinos cash desk without charge.
+These non negotiable chips can then be used in just the same way as other non negotiable chips.
+Non negotiable chips have no printed terms and conditions.
+Free bet vouchers, on the other hand, are subject to terms and conditions which may limit the games in which they may be played (for example, blackjack or punto banco), the bets for which they may be placed (for example, even money bets) or the time at which they may be used (for example, between particular dates).
+In these proceedings non negotiable chips and all free bet vouchers have been referred to collectively as Non Negs and I too will use that terminology.
+No one has suggested that, for tax purposes, the various kinds of Non Negs should be treated differently from one another.
+But I should observe that the Upper Tribunal pointed out, entirely correctly in my view, that free gaming chips vouchers should not have been included in the same category as other Non Negs because they are not used in the game itself, nor do they end up in the drop box; it is only the Non Negs into which they may be exchanged which are placed as bets.
+Clearly this can have no effect on the outcome of this appeal, however.
+LCM introduced Non Negs in 2008 and from that time it included the face value of all the Non Negs played by gamblers and retained by its casinos in their drop boxes in the calculation of its bankers profits.
+However, following a review of that approach, it considered that it had made an error in so doing and that, in consequence, it had over declared its payable gaming duty.
+In October 2012 LCM therefore wrote to the Commissioners for Her Majestys Revenue and Customs (HMRC) and requested repayment of 1,973,376.97 of gaming duty which it said had been overpaid in the period from 1 October 2008 to 30 September 2012.
+The request was made under section 137A of the Customs and Excise Management Act 1979.
+On 13 March 2013, HMRC rejected that claim.
+LCM appealed against that decision.
+The proceedings
+The First tier Tribunal (FTT) (Judge Sinfield) [2014] UKFTT 1060 (TC) dismissed LCMs appeal.
+The FTT rejected LCMs argument that Non Negs did not have any value in money or moneys worth within the meaning of section 11(10)(a) of the FA 1997 because they were provided to the gambler free of charge and so the gambler did not risk anything of value when he placed them as a bet.
+It accepted instead the argument advanced on behalf of HMRC that the value in money or moneys worth of the Non Negs was their monetary face value on the basis that the face value would be used to calculate the winnings in cash chips and on a losing bet the gambler would no longer have the right to bet the monetary value of the Non Negs for free.
+On appeal by LCM, the Upper Tribunal (Tax and Chancery Chamber) (UT) (Henderson J and Judge Roger Berner), [2016] UKUT 0259 (TCC) allowed the appeal.
+It held that the FTT failed to have proper regard to the requirement that the value of the stakes staked in section 11(10)(a) of the FA 1997 must be the value of those stakes in money or moneys worth.
+However, Non Negs did not represent any money paid or deposited with LCM, nor did they have any value in moneys worth by reason of being redeemable for cash or for goods or services.
+Further, there was no evidence and there were no findings of fact either that Non Negs were transferable or, if they were, as to the monetary value that they might realise upon any transfer.
+The UT also addressed the position of Non Negs as prizes under section 11(10)(b) of the FA 1997.
+It considered that this was not an issue which needed to be resolved to dispose of the appeal but it was desirable that it should express a view upon it because the system of valuation for gaming duty purposes of chips and vouchers for free bets should be regarded as a whole, taking into account the positive and negative elements of the calculation of the bankers profits.
+On this issue, the parties took the position that Non Negs should be treated in the same way for the purposes of section 11(10)(a) and (b).
+Hence LCMs case was that Non Negs were to be treated as having no value for the purposes of section 11(10)(a) and (b).
+HMRC, on the other hand, argued that Non Negs were to be treated as having their face value for the purposes of section 11(10)(a) and (b), with the result that only when a Non Neg was not returned to or retained by the gambler would its value contribute to bankers profits.
+The UT observed that it was not part of LCMs claim or its case on appeal that if Non Negs had no value for the purposes of section 11(10)(a) they could nevertheless have a value for the purposes of section 11(10)(b).
+Correspondingly but not surprisingly, LCM did not dispute HMRCs analysis of the position as to the value of Non Negs as prizes were HMRCs argument as to the value of Non Negs for the purposes of section 11(10)(a) to have prevailed.
+The UT accepted LCMs contentions on this issue.
+It held that Non Negs which were returned to or retained by the gambler fell within section 20(4)(a) and (b) of the BGDA and therefore must be regarded as having no value.
+They fell within section 20(4)(a) because they failed to satisfy section 20(3)(a) and (b).
+They could be used to play a game but that did not mean they were used in place of money as payment for benefits.
+They fell within section 20(4)(b) because their use was restricted to the same use as any other Non Neg and therefore could not have any different value in money or in moneys worth.
+The Court of Appeal (Flaux, Leggatt LJJ, Dame Elizabeth Gloster) [2018] EWCA Civ 2210; [2019] 1 WLR 1 dismissed HMRCs further appeal.
+It held that a Non Neg was not a stake staked for the purposes of section 11(10)(a) of the FA 1997; and, if a Non Neg was a stake staked, that stake had no value in money or moneys worth.
+Dame Elizabeth Gloster, with whom Leggatt and Flaux LJJ agreed, reasoned that the assessment of stakes staked under section 11(10), in context, involved a conventional arithmetical calculation of real world stakes received from players which, if necessary, could feature as revenue figures in a set of accounts and contribute to the casinos gross profits.
+It did not include artificial or notional values placed on tokens given to the gambler by the casino as a promotional exercise which intrinsically had no value and were non negotiable, or at best had an economic value to the player equivalent to their face value multiplied by the chance of winning.
+In no sense could the face value of a Non Neg, or even the value calculated by reference to the chance of winning, feature as a receipt in a casinos accounts or be said to contribute to its gross profits.
+Further, when a gambler used a Non Neg, he was not using his own money or putting his own money at risk.
+When a gambler lost a Non Neg and it was placed in the casinos drop box, he was not losing cash but the right to use that Non Neg to place a bet.
+On an objective assessment of value, a Non Neg had no value in money or moneys worth for the purposes of section 11(10)(a).
+HMRC also asked the Court of Appeal to consider the value of Non Negs as prizes provided on the basis that, although a finding on this issue was not necessary to dispose of the appeal, there should, so far as possible, be consistency between the value of Non Negs as stakes staked and as prizes provided.
+The Court of Appeal duly did so and, once again, agreed with the reasoning of the UT.
+The benefit which a retained Non Neg provided was no different from that referable to the original Non Neg.
+As no payment was required for the original Non Neg, there was no payment in money which the Non Neg could replace.
+Nor did staking a Non Neg in a casino game entail payment in return for a benefit.
+Moreover, the use of a Non Neg was restricted, since it could only be used as a stake, and its use as such had no value.
+The UT was therefore right to conclude that the effect of either section 20(4)(a) or (b) of the BGDA was that a Non Neg retained as a prize had no value for the purposes of section 11(10)(b) of the FA 1997.
+This appeal
+Upon this further appeal, HMRC contend that the Court of Appeal fell into error on each of the issues it decided.
+It is therefore necessary to consider: i) whether, in calculating bankers profits, Non Negs are stakes for the purposes of section 11(10)(a) of the FA 1997; ii) what value, in money or moneys worth (if any) Non Negs have for the purposes of section 11(10)(a); and iii) what value (if any) should be given to Non Negs for the purposes of section 11(10)(b).
+Issues (i) and (ii) Non Negs as stakes staked
+It is convenient to address these issues together, for they are closely related.
+HMRCs case is clear and straightforward.
+They contend that for the purposes of section 11(10)(a) Non Negs are stakes staked when they are played in a game and that their value in money or moneys worth is their face value because that is the value which is attached to them in the game.
+Non Negs are to be treated as a stake for the purposes of section 11(10)(a) because they are treated as a stake under the rules of the game in which they are played, and are to be valued by reference to their value in money as a stake under those rules.
+This approach is, they say, focused on the treatment of the Non Negs in the game but also reflects the commercial reality that it is only because they can be staked at their face value and confer an entitlement to cash winnings if the play is successful that they act, as intended, as incentives or rewards.
+HMRC recognise that one of two other approaches might be adopted.
+The first is that section 11(10)(a) is concerned with stakes which consist of cash or which can be encashed or converted to cash, in which case Non Negs, which cannot be encashed, have a zero value or are not stakes at all.
+The second is that this provision is concerned with stakes which have a real world value to the gambler, and that this is their value under the provision.
+HMRC continue that this value will generally not be zero because a gambler can, by using cautious strategies, convert a Non Neg into cash chips.
+Further, if the Non Neg is assignable, it will have a value in an arms length transaction between its holder and another gambler.
+HMRC accept that it is not open to them on this appeal to argue that, on this approach, the market value of the Non Negs in issue was not zero but say that, were this court to find this is the correct approach, it would be open to them to do so in other cases, and to argue that the market value is substantial.
+It is contended by HMRC that their preferred approach is the correct one.
+Section 11(10)(a) is concerned with the existence and value of the stake being placed as a stake in the casino game, and not its value in any other context, such as its value when encashed or when sold or assigned to another gambler.
+They continue that this is why, when ordinary cash chips are given by casinos to favoured gamblers and are used to place bets in a game, these chips count as stakes staked in the game for duty purposes.
+It is also why a cash incentive given to a gambler, such as a promise of a 50 cash back if 1,000 worth of ordinary cash chips are bought and staked, has no effect on the value of those cash chips as stakes staked in the calculation required by section 11(10).
+The promise does not affect the treatment or value of the stakes staked in the game under the rules of the game.
+LCM contends that HMRCs approach accords with neither the wording of the legislation nor the judicial guidance in this area.
+Playing a casino game with a Non Neg does not involve staking a stake with the banker.
+Further, if and in so far as playing with a Non Neg does involve staking a stake, the value of the stake in money or moneys worth is nil.
+The case advanced by LCM therefore has two elements.
+In support of the first, namely that a Non Neg is not a stake staked within the meaning of section 11(10)(a), it argues that it is inherent in the concept of staking a stake that a gambler is putting something of value at risk.
+However, a Non Neg has no value and it represents nothing of value.
+A gambler risks nothing when he plays a game with a Non Neg and the banker gains nothing if the player loses his bet.
+Much the same reasoning underpins the second limb of LCMs case.
+It argues that if a Non Neg is a stake then it has no value in money or moneys worth.
+Assessment of whether a Non Neg has a value in money or moneys worth requires a consideration of the economic substance which underpins its use as a stake in a game.
+As a matter of substance, the gambler is not placing anything of value at risk.
+The Non Neg is a token which allows him to play the game for free.
+I should add one further point at this stage.
+The parties remain in agreement
+that there should, so far as possible, be consistency in approach between the value of Non Negs as stakes staked under section 11(10)(a) and as prizes provided under section 11(10)(b).
+This is a matter to which I must return in considering issue (iii).
+Discussion
+Before addressing these rival arguments and the proper interpretation of the legislation, I must say a little about the nature of a cash chip and what it represents.
+This was explored by the House of Lords in Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548.
+The case concerned the misappropriation by a solicitor of money from his firms client account.
+The solicitor exchanged that money for cash chips which he gambled away at the respondents club.
+In these proceedings the firm sought to recover from the respondents the money lost by the solicitor as money had and received.
+One of the issues which arose was whether the respondents had given, in good faith, good consideration for the money.
+At that time gaming contracts were void under section 18 of the Gaming Act 1845 (the 1845 Act) but the respondents nevertheless claimed they had given good consideration for two reasons: first, each time the solicitor placed a bet at the club, he obtained in exchange the chance of winning and thus of being paid; and secondly, the chips were supplied to the solicitor in exchange for money, and this constituted a separate contract, independent of the contracts under which bets were placed at the club and it was not void under the 1845 Act.
+The House of Lords had no difficulty rejecting the first of these arguments.
+Each time the solicitor placed a bet he received nothing in return which constituted valuable consideration.
+The gaming contract was void and, if the solicitor won his bet, he had no right to any winnings, though he might have had a confident expectation that the club would pay.
+Were it otherwise, the club would soon have gone out of business.
+The second argument ultimately fared no better.
+In the course of his reasoning, Lord Goff of Chieveley said this at p 575F H: In common sense terms, those who gambled at the club were not gambling for chips: they were gambling for money.
+As Davies LJ said in CHT Ltd v Ward [1965] 2 QB 63, 79: People do not game in order to win chips; they game in order to win money.
+The chips are not money or moneys worth; they are mere counters or symbols used for the convenience of all concerned in the gaming.
+The convenience is manifest, especially from the point of view of the club.
+The club has the gamblers money up front, and large sums of cash are not floating around at the gaming tables.
+The chips are simply a convenient mechanism for facilitating gambling with money.
+The property in the chips as such remains in the club, so that there is no question of a gambler buying the chips from the club when he obtains them for cash.
+Lord Goff went on to explain that if gaming contracts were not void under English law there would be a contract in respect of the chips under which the club would accept the deposit of money by the gambler and provide him with chips which he could use to place bets or redeem; and separate contracts would be made when each bet was placed, at which point in time part or all of the money so deposited would be appropriated to the bet.
+As it was, however, each time the gambler placed a bet, the agreement between the gambler and the club was an agreement by way of gaming and so was null and void.
+The club, by accepting the bets, had not given valuable consideration for the money wagered by the gambler because the club was under no legal obligation to honour those bets.
+It follows that when a gambler plays with cash chips in a casino, he is not staking the chips but the money those cash chips represent which he has deposited with the casino.
+When the gambler uses the chips to make a bet in a game, the money those chips represent is appropriated to the bet the gambler is making.
+If the gambler loses the bet, the right to the money those chips represent passes to the casino.
+If, on the other hand, the gambler wins the bet, then, depending on the rules of the game, the gambler will be entitled to a prize comprising the money he has bet and a further monetary prize, the size of which will usually be related to the size of the bet the gambler has made and the odds of him winning.
+The gambler will be given cash chips which represent the money he has won and he can use those chips and the money they represent to place further bets or he may encash the chips.
+I can now turn to the legislation and would make three points at the outset.
+First, the assessment of the gross gaming yield from any premises requires a focus upon the activity of gaming and not the provision of other goods or services on the premises.
+As I have explained, section 11(8) of the FA 1997 provides that the gross gaming yield consists of the aggregate of the gaming receipts from the premises and, where the provider of the premises (or a person acting on his behalf) is banker in relation to dutiable gaming taking place on the premises, the bankers profits.
+Gaming receipts, as defined in section 11(9), comprise, subject to section 11(9)(b), receipts from charges made in relation to dutiable gaming such as fees to participate in a particular dutiable game.
+Similarly, bankers profits are those profits derived from the activity of gaming and not any wider activities or services provided at the premises at which the gaming takes place.
+The second point concerns the nature of bankers profits and the perspective from which they must be considered.
+As defined in section 11(10), bankers profits from gaming are the value in money or moneys worth of the stakes staked with the banker in any such gaming, less the value of the prizes provided by the banker to the gamblers taking part in the gaming (excluding anyone who takes part on behalf of a provider of the premises).
+This assessment must, so it seems to me, be carried out from the perspective of the banker for it is the bankers profits which must be brought into account in calculating the gross gaming yield from the premises.
+The third point concerns the nature of the valuation that must be conducted.
+In my view, the expression money or moneys worth in section 11(10)(a) emphasises that in determining the value of the stakes staked it is the actual and real world value of the stakes in the hands of the banker which matters.
+Section 11(10)(a) is concerned with stakes which are or represent money (as cash chips do) or which can be converted into money.
+Similarly, in working out the value of the prizes provided by the banker, it is the actual or real world cost to the banker of providing the prizes that must be brought into account, subject to the operation of section 20 of the BGDA.
+I would reject the submission made by HMRC that section 11(10)(a) is concerned with the role the stake plays in the game and the value it carries for that purpose.
+In my view, the UT was right to say that this goes too far and attaches insufficient weight to the expression money or moneys worth and the context, which requires a focus on the economic substance of the stake and the real financial contribution that stake makes to the bankers profits from gaming and in turn to the gross gaming yield from the premises.
+So too, the Court of Appeal was correct to say that the calculation of stakes staked involves a conventional accounting of the real world value of the stakes which have been staked in any given accounting period.
+Aspects of this approach to the legislation are reflected in the decision of the Court of Appeal in Aspinalls Club Ltd v Revenue and Customs Comrs [2013] EWCA Civ 1464; [2015] Ch 79.
+There Aspinalls Club Ltd, the operator of a well known gaming casino, offered various incentive schemes to wealthy gamblers whom it wished to encourage.
+These took the form of commissions or rebates provided to the gambler based on the amount of chips played or losses incurred by him over the term of the agreement.
+Under one of these schemes, the cash chip agreement, Aspinalls agreed to pay to the gambler a commission based on the total amount of cash chips staked during the course of the agreement providing the gambler had staked enough to meet a turnover requirement.
+One issue to which the appeal gave rise was whether, as Aspinalls argued, the value of the stake staked had to be determined by reference to the agreement between Aspinalls and the gambler under the cash chip agreement.
+Hence, Aspinalls argued, the value of the stake staked was the value of the stake less any commission due under the agreement.
+The Court of Appeal rejected that argument for reasons given by Moses LJ, with whom Black and Gloster LJJ agreed, at para 8: Section 11(10)(a) of the 1997 Act is clear.
+The value in money or moneys worth of the stakes staked is the face value of the chip.
+Staking a chip is the same as staking money and the value in money of the chip is its face value: see Davis LJ in CHT Ltd v Ward [1965] 2 QB 63, 79 and Lord Goff of Chieveley in Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548, 575, cited [2011] UKFTT 325 (TC) at para 30; [2012] STC 2124, para 35.
+The stake is the amount risked in connection with the game; it is the value of that stake which is put at risk in the game.
+The value put at risk in the game is not altered by reference to any commission the player receives under the cash chip agreement.
+The Court of Appeal was right to reach this conclusion.
+Section 11(10)(a) is concerned with the value of the stakes staked in the game, not any wider consideration such as the payment of commissions.
+The value of the stakes staked by a high value gambler with the benefit of the cash chip agreement was the face value of the chips used by that gambler to place the bet.
+That was the amount of money the gambler put at risk.
+The Court of Appeal went on to find, again rightly in my view, that the commissions were not prizes either.
+Section 11(10)(b) is concerned with the prizes provided by the banker in the game in the event the gambler wins the bet.
+The focus throughout is on the game itself, not the wider activities of the casino or the expenses it has incurred or its overall profitability.
+That brings me to Non Negs and how they are to be treated under this statutory scheme.
+I would acknowledge at the outset that Non Negs do have a real world value to the gambler.
+They confer on the gambler a right to make a bet in a game without placing any of his own money at risk, and with the bet comes the opportunity of winning.
+To this extent, therefore, I agree with HMRCs submissions.
+Non Negs operate as incentives or rewards because they have a real world value to the gamblers to whom they are provided and by whom they may be used to place bets in a game.
+So too I would reject LCMs submission that a gambler risks nothing when he uses a Non Neg to make a bet.
+He risks losing the Non Neg and with it the opportunity to win a prize by using it to make a bet.
+Nevertheless, Non Negs are very different from cash chips which represent money deposited by the gambler, or money which he has won or been given to encourage him to bet.
+Non Negs do not represent money to which the gambler is entitled and, unlike cash chips, they cannot be encashed or exchanged for goods or services.
+Further, when a gambler places a bet using a Non Neg, no money is appropriated to the bet.
+If the gambler loses, the Non Neg is placed in the drop box but no right to money passes to the casino.
+When the casino allows a gambler to bet with a Non Neg, it is, in a sense, allowing the gambler to bet with the casinos own money.
+Put another way, from the point of view of the casino, a Non Neg amounts to a free bet.
+As such, a Non Neg has no real world value to the casino when the gambler loses it in a bet save in so far as it may be said that a contingent liability of the casino to pay out according to the rules of the game in which it is played is eliminated.
+But in my view, this does not instil in the Non Neg a value, in money or moneys worth within the meaning of section 11(10)(a).
+Nor does it render it a stake staked within the meaning of that provision.
+Furthermore, a Non Neg does not make a contribution to the bankers profits within the meaning of section 11(10) or to the bankers gross gaming yield within the meaning of section 11(8).
+This is so whether the Non Neg is assignable or not.
+The assignability of the Non Neg cannot and does not affect its value to the casino.
+The diamond necklace
+This approach also yields the answer to a question which animated submissions at the hearing of this appeal.
+It arises from an illustration used by HMRC.
+Suppose, say HMRC, a gambler stakes a diamond necklace with an uncertain market value lying somewhere in the range of 15,000 to 35,000.
+HMRC submit that section 11(10) of the FA 1997 deals with this uncertainty by treating the value of the necklace (and so the stake) as the value that it is given in the game.
+So, if the casino and the gambler agree that the value of the necklace is to be treated for the purposes of the game as 10,000 then that is its value for the purposes of section 11(10) when it is placed as a stake.
+The casino cannot argue later that the true value of the necklace is less than 10,000, nor can HMRC argue that the true value is more than 10,000.
+This, HMRC continue, is the position in relation to Non Negs too.
+The casino and the gambler have agreed that Non Negs shall be treated as having their face value for the purposes of the game, and that is the value they must have when placed as a stake under section 11(10).
+This approach produces certainty.
+LCM agrees that, in this example, the necklace is to be treated as having a value of 10,000 for the purposes of calculating the bankers profits but says that this is consistent with its case rather than that of HMRC.
+Its case, it continues, focuses on the contract between the parties in order to determine whether there is a stake and, if there is a stake, what its value is.
+Non Negs allow a gambler to play for free.
+He places nothing at risk.
+So, a Non Neg has no value and is not a stake.
+I would not accept the arguments of either party in relation to this example for they both seem to me to ignore the need to assess the value in money or moneys worth of the stakes staked in calculating the bankers profits from gaming under section 11(10).
+The need to assess the value in money or moneys worth emphasises the need to ascertain the real objective value, that is to say, the real world value of a stake staked.
+If the casino and the gambler have agreed a value of 10,000 for a necklace which is staked in a game but the casino later finds that the necklace is made of paste and worthless, then it will contribute nothing to the bankers profits.
+Conversely, if the casino discovers that it has made a good bargain and that the necklace is worth more than 10,000, then that is the contribution it will make to the bankers profits.
+Of course the fact that the casino and the gambler have agreed a value of 10,000 for the necklace may be powerful evidence of its true value but it may not be determinative, and where it is not I can see no reason why HMRC, which are not party to the agreement between the casino and the gambler, should be bound by its terms.
+For all of these reasons, I would conclude that Non Negs are not stakes staked within the meaning of section 11(10)(a) of the FA 1997, nor do they have any value in money or moneys worth within the meaning of that provision.
+Issue (iii) Non Negs as prizes
+I agree with the UT and the Court of Appeal that any discussion of how Non Negs are to be valued in a game ought also to consider their value when returned by the casino to the gambler who has won his bet.
+As I have said, HMRC and LCM agree that Non Negs which are returned to the gambler in that way are prizes within the meaning of section 11(10)(b) of the FA 1997.
+They also agree that, so far as possible, there should be a consistency in approach as to the value of Non Negs as stakes staked under section 11(10)(a) and as prizes provided under section 11(10)(b).
+Hence HMRC say that they should be treated as having their face value for the purposes of section 11(10)(a) and (b) whereas LCM argues, and the UT and the Court of Appeal agreed, that they have no value.
+So too it formed no part of the submissions of either party that Non Negs should be treated differently for the purposes of section 11(10)(a) and (b).
+I would emphasise, therefore, that HMRC do not contend that, were this court to hold that Non Negs are not stakes staked or that they do not have a value, in money or moneys worth equal to their nominal face value when assessing the value of the stakes staked in a given accounting period, they nonetheless have their face value when returned to gamblers as prizes by application of section 20 BGDA.
+Nor, I would add, did LCM make such a submission.
+Nevertheless, it seems to me to be desirable that I should address, on their merits, HMRCs arguments concerning the value of Non Negs as prizes, albeit that these arguments have only been advanced as the counterpart of their case that Non Negs have their face value as stakes staked.
+HMRC have developed their case on this aspect of the appeal in the following way.
+They say that, as a matter of ordinary language, a Non Neg may be used in place of money as payment for benefits of a specified kind, namely the benefit in the course of a game of cash equivalent to the face value of the Non Neg.
+In the game, the Non Neg is as good as cash, and a gambler who uses the Non Neg is in the same position as a gambler who uses cash.
+Accordingly, section 20(3)(a) and (b) of the BGDA are satisfied and in so far as the UT and the Court of Appeal found to the contrary, they fell into error and misunderstood the statutory language and the underlying economic reality.
+They also say that section 20(3)(c) is satisfied, about which there has been no dispute.
+Turning now to paragraph (b) of section 20(4) of the BGDA, HMRC say this must be read with section 20(3)(a) and (b) and that, in referring to a specified restriction, condition or limitation which may make the value of the voucher to the recipient significantly less than the amount specified in subsection (3)(b), the paragraph must be referring to a restriction, condition or limitation on the use of the voucher beyond the fact that it can only be used as payment for benefits of a specified kind obtained from a specified person.
+Were it otherwise, any voucher which satisfied the requirements of section 20(3)(a) would also fall within section 20(4)(b) and that cannot have been the intention of the legislature.
+As for Non Negs, HMRC say that there is no restriction on their use beyond the limitation that they can be used for the purpose of playing particular games in LCMs casino.
+In summary, HMRC continue, Non Negs are vouchers which satisfy section 20(3)(a), (b) and (c) of the BGDA.
+Further, Non Negs do not satisfy section 20(4)(b).
+It follows that Non Negs are to be treated as having their face value as prizes for the purposes of section 11(10)(b) of the FA 1997.
+In my judgment Non Negs do not satisfy section 20(3)(a) of the BGDA.
+As I have explained, gamblers gamble with money.
+When a casino issues cash chips, the property in those chips remains the property of the casino.
+The cash chips are simply a convenient way of facilitating gambling with money.
+A gambler who places a bet using cash chips is not purchasing goods or services or any other benefits with the chips or with the money those chips represent.
+He is placing his money at risk under the terms of an agreement he makes with the casino to play a game of chance.
+Similarly, when a gambler uses a Non Neg to place a bet he is playing a game of chance in which the casino treats him as having put money to the value of the Non Neg at risk.
+If the gambler loses, the casino retains the Non Neg.
+If the gambler wins, the Non Neg is returned to him together with any other prize he has won.
+But in neither case has the gambler used the Non Neg in place of money as whole or partial payment for benefits of a specified kind obtained from the casino or banker.
+In these circumstances it is not necessary to express a final view on the proper interpretation and application of section 20(4)(b).
+Nevertheless, I would be minded to reject one aspect of the submissions of HMRC here too.
+In particular I would not accept that section 20(4)(b) must be referring to restrictions, conditions or limitations on the use of the vouchers concerning matters other than the kinds of benefits for which they can be used as payment or the persons from whom those benefits can be obtained.
+To my mind a critical feature of section 20(4)(b) is the requirement for its application that the restriction, condition or limitation may make the value of the voucher to the recipient significantly less than its face value.
+Some vouchers will satisfy this condition and others will not.
+Whether a Non Neg does so or not will depend upon the restrictions, conditions or limitations imposed by the casino on its use and the impact those restrictions, conditions or limitations have upon the value of the Non Neg to the gambler.
+I am confirmed in these views because, on the interpretation of section 20(3) of the BGDA which I would hold to be correct, the outcome is a coherent scheme for the treatment of Non Negs whether used by gamblers to place bets or when returned to gamblers as prizes.
+Were it otherwise, the legislation would have the consequence that Non Negs would not contribute to bankers profits when gamblers lost their bets but would reduce those profits when gamblers won and had their Non Negs returned to them as prizes.
+It would mean that if, for example, a gambler, who places as a bet a Non Neg with a face value of 100, wins three times in a row before losing, and each time he wins has his Non Neg returned to him together with any other prize, the casino can say that, simply by returning the Non Neg, it has incurred a cost of 300 in prizes and reduce its profits accordingly.
+That would produce an incoherent scheme which would be unduly favourable to casinos and in my view that cannot have been Parliaments intention.
+Conclusion
+For all of these reasons, I would dismiss this appeal.
+LADY ARDEN:
+Bankers profits for gaming duty purposes
+This appeal concerns gaming duty, which is chargeable on premises such as casinos in the United Kingdom where dutiable gaming, including casino games, takes place.
+The respondent at its casinos provides to selected customers Non Negs, that is, non negotiable vouchers for gaming conferring the right to place free bets in order to induce those customers to visit its casinos and engage in gaming.
+The vouchers can only be used for that purpose and they are non negotiable in that they cannot be exchanged for cash or used to pay for goods or services such as food and drink, but, if the customer using Non Negs wins, he receives redeemable cash chips and is given back his Non Negs.
+Non Negs are not subject to any restriction on transfer.
+They bear a face value amount which is the amount for which they can be wagered.
+The key question at the heart of this appeal is whether the Non Negs should be taken into account as part of the bankers profits for the purposes of section 11(8)(b) read with section 11(10) of the Finance Act 1997 (the FA 1997), which are set out in paras 3 and 5 above.
+Gaming duty in this case is charged on gross gaming yield from the relevant premises (section 11(8) of the FA 1997, para 3 above).
+Where there is a banker for gaming purposes, the gross gaming yield means both the gaming receipts and the bankers profits.
+These are defined in section 11(10) as follows: In subsection (8) above the reference to the bankers profits from any gaming is a reference to the amount (if any) by which the value specified in paragraph (a) below exceeds the value specified in paragraph (b) below, that is to say (a) the value, in money or moneys worth, of the stakes staked with the banker in any such gaming; and (b) the value of the prizes provided by the banker to those taking part in such gaming otherwise than on behalf of a provider of the premises.
+Value of stakes is value at large
+It is clear that Parliament in enacting this provision is requiring there to be
+brought into account for the purposes of gaming duty not the receipts of gaming (which are covered by section 11(8)(a)) but the value of stakes staked less the value of prizes paid.
+It is, therefore, not determinative that the stake might have been issued as a free bet by the casino, or that the receipt was less than its perceived value as where the customer puts down a stake in the form of an IOU but then fails to pay.
+The key is the value of whatever has generated the gaming activity.
+Value is not restricted to the amount for which the stake is bet
+In my judgment, the term value in section 11(10)(a) is value at large in that it is determined by open market valuation, that is what a person would pay for it in the open market, and that person could include the casino.
+In its primary case HMRC adopt a game based approach to valuation and submits that the value of the stakes staked is the value which the stake is given for the purposes of the relevant gaming, as opposed its value to any particular person or in the market.
+HMRC point out that the term banker is used in this subsection in its gaming connotation.
+The term value of the stakes staked is not, however defined and it seems to me that that it must bear its ordinary meaning.
+The expression stake staked are an unusual collocation of words, and it has not been suggested that the combined phrase is a term of article The word staked seems to mean which has been staked, meaning actual staking and constituting a form of condition subsequent to the identification of a stake.
+I do not think it can be read as in the amount that it has been staked.
+Even if it did, it could be liable to circumvention where stakes were accepted, for instance, in ounces of silver.
+I therefore join with the majority in rejecting HMRCs primary case.
+Of course, it is consistent with HMRCs case that, as the majority hold and I agree, the diamond necklace of uncertain value is to be taken to have a value equal to the amount for which the casino allows it to be staked, no more and no less.
+This is also consistent with my approach.
+As I see it, that limitation is achieved by the word staked.
+The only value which is relevant is that which has been wagered or staked, and the rest falls outside gaming duty.
+I can see that it would be easier to administer the duty (which is self assessed in the first place) if the person liable to gaming duty had to take only the face value of the voucher, but we have to interpret the words that Parliament has used.
+This to me is more important than the fact that the object of section 11(10) is to ascertain the bankers profits because section 11(10) does not have as its purpose the presentation of a true and fair view of a bankers profits, as would the statutory accounts of a registered company.
+Section 11(10) is an artificial sectoral formula which has left matters of deduction out of account and which can equally bring matters into account even if they would not fall to be included under conventional accounting principles (cf para 38, last sentence of Lord Kitchins judgment).
+Aspinalls (paras 39 to 41 above) shows that the formula is not based on conventional accounting principles of admitting the deduction of all costs incurred in making a particular profit.
+Market value is in issue on this appeal
+An alternative case put by HMRC is market valuation.
+This does not arise on the facts in this case as found by the tribunals.
+It arises only because the majority has adopted the approach to value of valuation from the perspective of the banker alone.
+This excludes market valuation.
+Therefore it seems to me incumbent to deal with the issue of market valuation on this appeal.
+If market value is the value of the stake, and a stake has a market value, that stake would, to the extent of that value, form part of the bankers profits once the stake had been staked.
+Contrary to the majoritys conclusion, value of a stake is not restricted to the
+perspective of the banker
+In my judgment, the majority make a critical error in interpreting value as the value from the perspective of the banker without any legislative direction to that effect (see para 37 above).
+This appears, in the opinion of the majority, to make irrelevant any market value: see para 44 above (The assignability of a Non Neg cannot and does not affect its value to the casino).
+That means that, if the banker issues a free bet and can then say, when the free bet is staked, that there is no contribution to its tangible assets, the free bet is outside the scope of gaming duty.
+In my judgment this is contrary to the statutory direction in section 11(10) to ascertain the value of the stakes staked because value is, as explained above, unqualified.
+The bankers perspective approach fails to take account of the fact that the free bet is staked and leads to gaming activity at the premises which are subject to gaming duty.
+A nil value is still a value.
+An objective value is a real world value.
+Profits can be bankers profits without the elements used to calculate those profits having to be valued from the perspective of the banker.
+Moreover, if Lord Sales is right in his interpretation of section 20 of the BGDA (dealing with the valuation of prizes), the further asymmetric and anomalous result is reached under section 11(10A) that the casino can not only exclude the free bets from bankers profits but also deduct the amount of prizes in the form of free bets from other stakes and reduce its other bankers profits accordingly.
+In any event, if there is a market value, it is as open to the banker as anyone
+else to make an offer to acquire the Non Neg.
+It is wrong to conclude that market value is not available to the casino.
+The casino could offer to acquire the Non Neg when the holder arrives at the casino, perhaps by offering him a free drink in exchange or a cash chip of a reduced amount.
+If the banker modelled the risk of a holder of a Non Neg winning, it would no doubt be in its interests to make such an offer at the appropriate amount to avoid a loss.
+When the player loses his bet, the right to stake the Non Neg is lost and the paper voucher is taken out of play.
+So, in my respectful judgment it is not open to the casino to say that nothing passes to it: it has extinguished the liability on the Non Neg.
+There cannot be read into the statute a requirement that this benefit is acquired by way of assignment or transfer.
+HMRCs failure to lead evidence of market value
+HMRC made an error of law at the start of this case which was corrected by the Tribunals.
+HMRC contended that the value of a Non Neg was its face value.
+The First tier Tribunal (Judge Greg Sinfield) rejected that method of valuation and found that the value was the chance of winning.
+The Upper Tribunal (UT) (Henderson J and Judge Roger Berner) corrected that by pointing out that the value had to be value in money or moneys worth, and there was no evidence to support any valuation.
+Therefore, HMRC failed on the facts, but non constat that it could not be shown on other evidence that objectively speaking the Non Neg had value.
+The UT explained the position as follows: 33.
+We do not regard as anything to the point that the Non Neg might provide the player with a right to play a game, or a right to have the chance to win, or a promise from the club in those respects, which Ms Wilson argued was a valuable right.
+The mere fact that such a right might subjectively be regarded by the holder of the Non Neg as a valuable right, in the sense that it would enable that holder to play a game without putting money at risk, is not material to an objective valuation, in money or moneys worth, of the stake staked. 34.
+On the other hand, the objective valuation of a stake would, in our view, have to have regard to the monetary value, if any, that could be obtained on an arms length assignment to a third party of the right to place that stake, in the same way that it would if the Non Neg was redeemable for cash or for goods and services.
+That would be moneys worth for the purpose of section 11(10)(a).
+It was not, however, HMRCs case that the stakes of the Non Negs should have any value other than the face value of the Non Negs, and there were no findings of fact either that the Non Negs were transferable or, if they were, what value might be realisable on a transfer.
+Furthermore as section 11(10)(a) requires the individual stake to be valued, there would have to be evidence of a value generally obtainable in a market in Non Negs or evidence that a particular Non Neg could have been, at the time it was staked, assigned for money or moneys worth.
+In the absence of such evidence, it is not possible to ascribe any moneys worth to the stake by reference to any assignable right. 35.
+It follows, in our judgment, that the FTT erred in law when it concluded, at para 27, that the value, in money or moneys worth, of a Non Neg was its monetary face value, on the basis that the face value would be used to calculate winnings in cash chips and on a losing bet the player would no longer have the right to bet that monetary value for free.
+In our view, the FTT failed to have proper regard to the requirement that the value in section 11(10)(a) must be a value in money or
+moneys worth
+The Court of Appeal (as referred at [2019] 1 WLR 1) agreed with this passage from the judgment of the UT (paras 36, 51 and 52).
+Mechanics of objective valuation
+Objective valuation permits the possibility that the parties will adduce evidence as to whether another person in the open market would buy the voucher and if so at what price.
+In the hands of an experienced player, it might be that the Non Negs could be turned into winnings, paid in cash chips, which the player could then encash.
+In those circumstances the Non Neg may have some value in the open market, even if small.
+The objective valuation of the stake permits the stake to be taken into account at an appropriate value as directed by Parliament if it has generated gaming activity, which is the trigger for the charge to gaming duty.
+The voucher serves the function of a gaming chip.
+In the normal way the customer obtains a gaming chip by placing a deposit of cash with the banker.
+Lord Kitchin refers to the speech of Lord Goff in Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548 in which this point is made.
+But with free bets there is no deposit of cash: although there are different types of voucher in this case as Lord Kitchin explains, this feature is a constant.
+In short, the Non Negs are all free bets issued by the casino itself as a promotional tool.
+The fact that they are not issued for cash does not in my judgment prevent it from being a stake or having an objective value for the purposes of section 11(10).
+Furthermore, the majority accept that the Non Neg has a real world value to the gambler and thus, I assume, a value might be realisable on the open market: see para 42 of the judgment of Lord Kitchin.
+Subjective ideas of value play no part in the process of valuing a stake.
+I therefore agree with Lord Kitchin in rejecting the argument to that effect that a diamond necklace of uncertain value offered and accepted as a stake for a specified amount is to be valued by reference to what the parties or at least the banker thought was its value.
+It is irrelevant if the banker or the player wrongly thought that the necklace was paste and therefore much less than it turned out to be.
+As I have said, it is inherently unlikely, given that Parliament would be concerned with the fair and equal allocation of tax burdens, that it was intended that the value of a stake should depend on anything other than its objective market valuation.
+That leaves the question of exactly what must be valued.
+As I have explained, one function of the word staked in the expression of the value of the stakes staked is to limit the stake to that part of, or that part of the value of whatever is staked, or what is used in the game.
+Why a Non Neg is a stake for the purposes of section 11(10)(a) of the FA 1997
+In my judgment, a Non Neg is a stake and the Court of Appeal fell into error
+in holding otherwise.
+Dame Elizabeth Gloster, with whom Leggatt and Flaux LJJ agreed, reasoned on this issue as follows: 29.
+The calculation of stakes staked under section 11(10)(b), to my mind, in context, involves a conventional arithmetical calculation of real world stakes received from players, which, if necessary, could feature as actual receipt or revenue figures in a set of accounts; it does not on any natural reading include artificial or notional values placed on tokens given to the player by the casino, as part of a promotional or marketing exercise, which intrinsically have no value and are non negotiable, or at best have an economic value to the player equivalent to their face value multiplied by the chances of winning.
+In real terms, when the casino gives out Non Negs to favoured players, it is allowing the player to bet with its (the casinos) own money.
+There is no receipt by the casino contributing to its gross profits; on the contrary, in permitting the player to gamble with a Non Neg, what the casino is actually doing is incurring a contingent (non enforceable) liability to pay out, according to the relevant odds of the game, in respect of the face value of the Non Neg in the event that the chip is placed as a winning bet.
+It is, in my judgment, counter intuitive in such circumstances to characterise what is essentially an item of the casinos own expenditure as part of the bankers profits or as a stake having a value in money or moneys worth.
+In no sense could the face value of a Non Neg, or even the value to the player calculated by reference to the chances of winning, feature as a receipt in a casinos accounts or be said to contribute to its gross profits. 30.
+For that reason taken on its own, I would not regard a Non Neg as being a stake which was required to be taken into account in the calculation of gross gaming yield as defined under section 11(8) or of bankers profits as referred to or defined under section 11(8)(b) or section 11(10).
+In particular, I do not consider that the amplified definition of bankers profits in section 11(10) requires one artificially to include the Non Negs (which are clearly not items of receipt directly contributing to profit, but rather items of expenditure) in the statutory profit calculation.
+In other words, in construing the relevant provisions one has to have regard to the relevant context.
+Although the phrase in section 11(10)(a) the stakes staked with the banker could arguably be said, linguistically, to be broad enough to include a Non Neg (simply because a Non Neg chip is placed on the gaming table by a favoured recipient as a stake), in my judgment, the phrase, construed in its actual context ie the ascertainment of gross gaming yield and bankers profits does not permit the artificial inclusion, as an item of stake under section 11(10)(a), of an amount of the casinos promotional marketing expenditure given to the player by the casino.
+Only in the most general and indirect sense could such a stake be said to be contributing to profit; and it could not be said in any real sense to constitute part of the gross gaming yield of the casino.
+I do not agree with this analysis.
+This reasoning with respect confuses the
+stake staked with its value.
+A stake is an ordinary English word meaning: That which is placed at hazard; esp a sum of money or other valuable commodity deposited or guaranteed, to be taken by the winner of a game, race, contest, etc. (Oxford English Dictionary, 2nd ed (1989))
+The word staked enables stakes which are not used in gaming to be left out of account and so Non Negs which are issued but never used may be excluded from the calculation of bankers profits.
+But a stake can on an assessment of its market value be worthless, as in the case of forged cheques (see Lydiashourne Ltd v Revenue and Customs Comrs (Decision E00092), 13 August 1998 explained by the UT at para 42).
+This is an important point in the statutory scheme.
+Stakes and prizes are not, moreover, the same as assets and liabilities in accounting generally.
+Parliament has required a specific account to be taken of stakes staked and prizes paid, and the fact that a stake might in some circumstances for accounting purposes be treated as a conditional liability or expenditure of the casino rather than as a receipt is not relevant.
+As stated above, a nil value is still a value.
+A stake does not cease to be a stake because it is of nil value.
+Does statute require the method of valuing Non Negs as stakes and Non Negs as prizes to be consistent?
+The valuation of Non Negs as prizes which can be deducted from the value of stakes staked is governed by section 11(10A) (para 6 above) which incorporates by reference subsections (2) to (6)(a) of section 20 of the BGDA (as amended by the Finance Act 2003) (the relevant parts of section 20 are set out in para 7 above).
+Section 11(10A) is not as such a deeming provision, but one which requires modifications to be made to the incorporated provisions.
+Where, as here, such a provision does not spell out the modifications which can be made, it may give rise to some exacting interpretation issues, and there should in my view be no expectation or anticipation that such a provision when carefully analysed should have rough edges or worse.
+It is, in my judgment, more important to approach those provisions in their application to gaming duty on the basis of the principle of statutory construction that it should be presumed that Parliament intended the statutes in pari materia (as here) to constitute a harmonious whole.
+On that basis, if I am right that the value of the Non Neg falls into the definition of the bankers profits I would as a matter of first impression expect the basic rules of debit and credit to apply and therefore, that if the value of stakes is credited on one basis, that, when Non Negs form part of a prize, they will be debited on the basis of a similar valuation method.
+On that last point, the views of the majority and my own coincide.
+On the other hand it is noticeable that subsections (3) and (4) of section 20 BGDA are expressly drafted so as to achieve HMRCs primary case on section 11(10) of the FA 1997 that the relevant value (in that case, a Non Neg) is the face value amount of the voucher, an argument which all members of the Court have rejected, and so some differences may in fact be unavoidable.
+HMRCs arguments of the parties are set out in paras 51 to 53 above.
+I approach the submissions on the hypothesis that it has been shown that the Non Negs have a market value as a stake.
+As to section 20(3)(a) I agree with Lord Sales.
+The majority do not explain what is meant by in place of money and in my judgment it must include instead of money.
+On that basis the prize of a Non Neg plainly satisfies section 20(3)(a). (No issue arises on section 20(3)(b) or (c)).
+As to section 20(4)(b), the UT held that the prize was not to be treated as valueless because of its restrictions under section 20(4) but in this the Upper Tribunal failed to give weight to the direction to find the value to the recipient.
+The recipient was a player, and the value of a free bet to someone who wants to gamble is not obviously significantly less than the face value of the voucher (and the majority accept the real world value of a free bet to the player: para 42 above).
+The question whether section 20(4)(b) is satisfied will depend on a consideration of the restriction in question.
+It is capable of being satisfied as where, for instance, the voucher contains some unreasonable condition as to the time of use of the voucher.
+I agree with Lord Sales that it must be a restriction on the use not of the prize but of the voucher in place of money as described in section 20(3)(a).
+The point is that, if the condition in section 20(4)(b) is met, it would be unreasonable to afford the casino the deduction of the face value of the prize to which it would otherwise be entitled to under section 20(3).
+This is consistent with the fact that, if section 20(4)(b) is met, it would be unlikely that the Non Neg would have any market value as a stake.
+If it is not met in any case, the banker would, on the face of it, be entitled to
+a deduction for the amount specified in the voucher.
+I do not propose to express a final view on this because the Court has heard no argument on whether, as authorised in principle by the terms of section 11(10A), in these circumstances section 20(3) must necessarily be modified to achieve parity between the credit to profits and the deduction of prizes where Non Negs are involved.
+That question must remain open.
+Conclusion
+On the facts of this case, but for reasons materially differing from the majority and the Court of Appeal, I would dismiss this appeal.
+LORD SALES:
+I agree with Lord Kitchins judgment in respect issues (i) and (ii), regarding the proper interpretation of section 11(10)(a) of the Finance Act 1997 (as amended).
+That is all that is necessary to dispose of the appeal.
+However, the UT and the Court of Appeal also expressed views in respect of issue (iii), regarding the proper interpretation of section 20 of the BGDA, as it applies by virtue of section 11(10A) of the FA 1997 in relation to the valuation of prizes for the purposes of section 11(10)(b), and we were invited to do the same.
+On that issue, I have come to a different conclusion from Lord Kitchin.
+As regards section 11(10)(a), I agree with Lord Kitchin that the subparagraph is concerned with the value to the banker of the stake staked.
+Although section 11(10) is focused just on the game (rather than the bankers income or profits in the wider sense), it imposes a tax on the banker.
+Accordingly, it is appropriate to construe it as applying in relation to real economic gains which the banker receives in the context of the game.
+This is borne out by the fact that what is taxed under section 11 is the gross gaming yield (section 11(2)(a)), which is calculated, according to section 11(8), by adding together gaming receipts and the bankers profits from the gaming.
+This language strongly suggests that what is in contemplation is receipts in the sense of real sums received by the banker (and section 11(9), which explains how they are to be calculated, reinforces this point) and profits in the sense of real profits realised by the banker from the gaming.
+In my view, this context informs the construction to be given to section 11(10), which explains how bankers profits are to be calculated.
+Further, as the UT emphasised (para 27), the reference in section 11(10)(a) to money or moneys worth indicates that the calculation is concerned with real world value.
+I would add that the context shows that it is real world value available to the banker which is significant.
+As Lord Kitchin points out, from the point of view of the gambler a Non Neg does have a real economic value (para 42); but from the point of view of the banker, as a contribution to its receipts and profits, it has none it simply represents a free bet (para 44).
+I agree with him that in the context of section 11(10)(a), the relevant concept of real economic worth is that given from the bankers perspective, not from that of the gambler.
+This view is supported by the points made in para 89 above.
+Therefore HMRCs submissions regarding the interpretation of section 11(10)(a), to say that under that provision either a Non Neg should be given its face value or should be given the notional market value it might have if it is assignable by the gambler, must be rejected.
+Moneys worth in section 11(10)(a) refers to real economic value to which the banker has access and which therefore can add to his profits.
+It does not include value to which only the gambler has access.
+Hence, it does not include the putative exchange value for the gambler of selling a Non Neg to a third party who wants to gamble.
+Even if the Non Neg is assignable, this is not value to which the banker has access in any real sense.
+If the banker wants to sell chips to another gambler, he will sell him regular chips.
+The application of section 11(10)(a) does not depend on the happenstance whether a Non Neg is assignable or not.
+Parliament intended that the application of the tax should be uniform as between different bankers and that it should not depend upon such matters, which are of no economic consequence from the bankers point of view.
+It should be emphasised that this is to give section 11(10)(a) a different construction from that arrived at by the UT, as endorsed by the Court of Appeal.
+Although the UT dismissed HMRCs contention that a Non Neg should be given a value under section 11(10)(a) equal to its face value, the UT considered (para 34) that this provision required a notional objective value to be given to a Non Neg in the gamblers hands, and it was only because HMRC had not introduced any evidence as to what that value might be that in this case the Non Negs should be treated as having nil value for the purposes of section 11(10)(a).
+By contrast, on Lord Kitchins interpretation of section 11(10)(a), with which I agree, the focus is firmly on the value of a stake for the banker in the context of the game.
+This means that issues which would affect the value of a Non Neg from the point of view of the gambler, but not the banker, such as whether it is assignable or not, are irrelevant.
+In my view, this approach to the proper interpretation of section 11(10), rooted in economic reality so far as concerns the bankers position and the calculation of his profits from the game, also means that the premise for the submissions made both by HMRC and LCM namely that Non Negs must be given the same value in subsection 11(10)(a) (the plus side of the calculation of the bankers profits) and in subsection 11(10)(b) (the minus side of that calculation, based on the prizes given in the game) breaks down.
+It is agreed that when a gambler plays a game with a Non Neg and wins, so that the Non Neg is returned to him with his winnings, the Non Neg so returned constitutes part of the prize given in the game. (Of course, one might have Non Negs the terms of which only allowed them to be played once and excluded them from being returned if the gambler wins a game using them, but that is not true of the Non Negs in issue on this appeal.) There is a real cost to the banker in providing a Non Neg as a prize, equal to the percentage chance the gambler has of winning real money from the banker when using the Non Neg to bet in the next game.
+Accordingly, the value of a Non Neg is different in the two elements of the calculation.
+The value of a Non Neg is nil from the point of view of the banker as regards section 11(10)(a), but when awarded as a prize it represents a real cost to the banker which ought in principle to be brought into account under section 11(10)(b), since section 11(10) is concerned with economic reality in relation to the bankers position.
+It is unfortunate that the submissions of the parties on issue (iii) were not entirely helpful or well directed, because they proceeded on the false premise that the approach to valuing a Non Neg should be the same for both sides of the equation.
+Before the amendment of section 11 of the FA 1997 by the addition of subsection (10A) in 2007, in calculating his profits from the gaming under section 11(10) the banker was entitled to bring the real cost of providing a Non Neg as a prize into account under subparagraph (b).
+Section 20 of the BGDA, to which section 11(10A) of the FA 1997 refers, deals with the valuation of non cash prizes in bingo gaming (see subsection (1): A persons expenditure on bingo winnings for an accounting period is the aggregate of the values of prizes provided by him in that period by way of winnings at bingo promoted by him).
+I do not consider that the amendment of the FA 1997 in 2007 to cross refer to section 20(2) (6)(a) of the BGDA to govern the calculation of the value of prizes given by the banker was intended to change the fundamental scheme of section 11(10) so as to disable the banker from bringing into account the value of Non Negs as prizes, even though they represent a real economic cost in the game for the banker.
+Yet this is the consequence which Lord Kitchins interpretation of section 20 produces.
+Rather, in my opinion, the cross reference to section 20 was intended to simplify and make uniform across the gambling industry and across different games of chance the calculation of the value of the cost to the banker or game organiser of vouchers (including Non Negs) given as prizes, for the purposes of calculating their income or profits from the game.
+In my view, on a straightforward reading of section 20(3) and (4) of the BGDA (set out at para 7 above), a Non Neg given as a prize satisfies the conditions in subsection (3) and does not fall within subsection (4), with the result that the Non Neg is treated for the purpose of section 11(10)(b) of the FA 1997 as having its face value.
+This is somewhat generous to the banker, as the true economic cost of the Non Neg will be less than this.
+But it only applies in relation to those Non Negs which are played and then returned to the gambler when he wins, which will be a very small subset of Non Negs.
+In relation to Non Negs which are played and lost, the banker cannot bring their cost to him into account at all.
+I consider that the interpretation of section 20 which I prefer respects the basic structure of section 11(10), in that it does give a value to what is a real cost to the banker in providing Non Negs as prizes.
+The application of deeming provisions in tax legislation, like section 20 of the BGDA, inevitably involves some rough edges, which may somewhat benefit the taxpayer or HMRC depending on the particular context.
+Such rough edges are the price paid for securing simplicity, uniformity and equality of treatment across a range of situations.
+In any event, it seems to me that the application of section 20(3) and (4), respectively, is clear in the present context.
+I do not think it is possible to depart from the clear wording of the provision as legislated by Parliament in order to address the sort of situation identified by Lord Kitchin at para 56 above.
+It is common ground that a Non Neg qualifies as a voucher for the purposes of section 20(3).
+Section 20 involves a degree of departure from the focus in section 11(10) of the FA 1997 on the economic position of the banker, in that section 20 focuses on the economic benefit of the voucher to the gambler: see section 20(3)(a), which focuses on how the gambler is able to make use of the voucher, and section 20(4)(b), which also focuses on the value of the voucher to the recipient.
+Therefore, in my opinion, one cannot say that just because a Non Neg does not qualify as a stake under section 11(10)(a) because it has no economic value for the banker, the same conclusion must follow when applying section 20.
+For present purposes, the starting point in applying section 20 is subsection (3).
+That provides that where the prize is a voucher which satisfies the conditions in subparagraphs (a) to (c), the specified amount is the value of the voucher for the purpose of the calculation of the cost to the banker of the provision of the voucher as a prize.
+In the present case, it is agreed that the condition in subparagraph (c) is satisfied.
+The application of section 20(3) therefore turns on subparagraphs (a) and (b).
+In my view, in respectful disagreement with Lord Kitchin, as regards subparagraph (a), a Non Neg given as a prize may be used in place of money as whole or partial payment for benefits of a specified kind obtained from a specified person.
+The gambler is entitled to use a Non Neg in place of an ordinary chip, representing money, as payment for a benefit of a specified kind, namely participation in a game of chance, obtained from a specified person, namely the banker.
+It seems to me that the condition in subparagraph (a) clearly is satisfied in relation to a Non Neg.
+I do not understand it to be in dispute that the condition in subparagraph (b) is satisfied: a Non Neg clearly specifies the amount of money which it represents in the game.
+Therefore, according to section 20(3) and subject to section 20(4), the relevant amount to be brought into account as the cost of the prize in section 11(10)(b) of the FA 1997, as amended, is the value which the Non Neg is specified to have.
+A Non Neg with a face value of, say, 5 for use in a game will have that value for the purposes of section 11(10)(b).
+I turn then to section 20(4), to see whether it has the effect that the Non Neg given as a prize should be treated as having no value for the purposes of section 11(10)(b) of the FA 1997.
+In my view, the precondition for the operation of section 20(4) set out in subparagraph (a) is not satisfied.
+For the reasons given above, a Non Neg given as a prize satisfies section 20(3)(a) and (b).
+That leaves the alternative precondition for the operation of section 20(4) set out in subparagraph (b).
+In my view, normally this precondition is not satisfied either.
+A paradigm case for application of section 20(4)(b) would be a prize in a bingo game or other game of chance in the form of a voucher redeemable for a weeks holiday worth a specified amount at a specified resort, but where the fine print stated that it could only be used in one specified and unattractive week of the year.
+In such a case, the value of the voucher to the recipient, who in practice might not be able or might not wish to use the voucher, might well be significantly less than its apparent face value.
+What is significant about such a case is that the use of the voucher as described in subsection (3)(a) (ie to obtain the benefits of a specified kind from the holiday resort) is subject to a relevant restriction, condition or limitation in relation to using it to obtain that benefit.
+However, assuming that one is concerned with a Non Neg in simple form, that is not the position in the present case. (I leave aside cases which might arise in theory, in which a Non Neg is subject to conditions which mean that the gambler cannot simply use it at will in a game, but, say, could only so use it at particular times of day which were inconvenient: such conditions would give rise to a potential issue regarding the application of section 20(4)(b) similar to that referred to in para 103 above).
+The use of a simple form Non Neg as described in subsection (3)(a) (ie to stand in place of money in payment for participation of a game of chance with the banker) is not limited in any way.
+When used for that purpose, the Non Neg is used in place of money at the full face value of the Non Neg.
+It is irrelevant that it cannot be used in place of money for any other purpose.
+For the reasons I have given, under issue (iii) I consider that section 20 of the BGDA as applied to section 11(10)(b) of the FA 1997, as amended, has the effect that a Non Neg given as a prize should be brought into account at the full face value of the Non Neg.
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+These appeals raise several matters which are important to the international market in telecommunications.
+The first (in all three appeals) is whether a court in the United Kingdom (UK) has jurisdiction and may properly exercise a power, without the agreement of both parties, to (a) grant an injunction to restrain the infringement of a UK patent where the patented invention is an essential component in an international standard of telecommunications equipment, which is marketed, sold and used worldwide, unless the implementer of the patented invention enters into a global licence of a multinational patent portfolio, and (b) determine royalty rates and other disputed terms of such a global licence.
+Secondly, there is a dispute (in the Conversant appeals: para 17 below) whether England is the appropriate forum to determine those matters.
+Thirdly, (in the Unwired appeal: para 16 below) there is a question as to the nature of the requirement that the licence, which the owner of a Standard Essential Patent (SEP) must offer to an implementer, be non discriminatory.
+Fourthly, (again in the Unwired appeal) there is a question whether the court should refuse to grant the owner of such a SEP an injunction on the ground that it has breached EU competition law because it has not complied with the guidance given in the judgment of the Court of Justice of the European Union (CJEU) in Huawei v ZTE (Case C 170/13) EU:C:2015:477; [2015] 5 CMLR 14; [2016] RPC 4.
+Fifthly, the appeals raise a more general question as to the circumstances in which it is appropriate for an English court to grant a prohibitory injunction or to award damages instead.
+Each member of the panel has contributed to this judgment which addresses those matters.
+Patents: the legal background
+The starting point is the patent bargain which promotes innovation and justifies the monopoly which a patent gives an inventor.
+The patent bargain is this: an inventor receives the reward of a time limited monopoly of the industrial use of its invention in return for disclosing the invention and dedicating it to the public for use after the monopoly has expired.
+See for example Actavis Group PTC EHF v ICOS Corpn [2019] UKSC 15; [2019] Bus LR 1318, para 53.
+The patents conferring such monopoly rights are national in scope and are usually conferred by national governments.
+Legal questions as to their validity and their infringement are determined by the national courts of the state which has conferred the patent right or, in the case of a European patent, in a designated state.
+An inventor has to protect its invention by applying for patents to the national authorities of each of those states in which it seeks to obtain a monopoly (unless it obtains a patent from the European Patent Office under the European Patent Convention which creates a nationally enforceable patent within each designated state).
+It is not unusual for a national patent for an invention to be upheld by the courts of one state and another national patent for what in substance is the same invention to be invalidated by the courts of another state.
+Within Europe, the same European patent can on occasion be upheld by the courts in one signatory state but be invalidated in another.
+Much may depend on the differing evidence led and arguments advanced in national legal proceedings.
+In English law, once a patent owner has established that a patent is valid and has been infringed, it is prima facie entitled to prevent further infringement of its property rights by injunction.
+In Scots law an interdict provides a similar remedy.
+We discuss this matter (the fifth issue) in more detail in paras 159 169 below.
+This prima facie entitlement and the patent owners entitlement in other jurisdictions to obtain similar prohibitory remedies form part of the backdrop to the contractual arrangements which lie at the centre of these appeals.
+To promote the development of global markets for telecommunications products, including mobile phones, the infrastructure equipment and devices produced by competing manufacturers need to communicate and inter operate with one another and the phones need to be available for use internationally by consumers who travel with their phones from one jurisdiction to another.
+Two attributes of patent law have militated against this development.
+First, the prima facie entitlement of the owner of a patent to prohibit by injunction the use of its invention within a national jurisdiction has the potential to disrupt a global market for equipment using that invention.
+Secondly, the national nature of patent monopolies, which forces the patent owner seeking to protect its monopoly to raise proceedings in individual national courts, makes it very difficult, if not wholly impracticable, for a patent owner to protect an invention which is used in equipment manufactured in another country, sold in many countries and used by consumers globally.
+The first attribute may give owners of patents included in an agreed standard excessive power to disrupt an otherwise global market to the prejudice of manufacturers of equipment using such inventions (implementers) and to exact excessive royalties for the use of their inventions.
+The second attribute may enable implementers to avoid paying an inventor a proper price for the use of its invention internationally.
+There was therefore potential for the alternative evils of the abuse by a patent owner of its monopoly rights and of the denial by implementers of the patent owners legitimate rights.
+Organisations involved in the telecommunications industry have sought to address those evils by establishing Standard Setting Organisations (SSOs) to which they bring their most advanced technologies, promoting standards using those technologies, and putting in place contractual arrangements to which we now turn.
+SSOs aim to promote both technological innovation, which is made available to the public, and competition between manufacturers, and thereby to benefit consumers through more convenient products and services, interoperability, lower product costs and increased price competition.
+Standard Setting Organisations
+Telecommunications SSOs have been established in China, Europe, India, Japan (two), South Korea and the United States.
+The first telecommunications SSO was the European Telecommunications Standards Institute (ETSI), which is a French association formed in 1988 and which has adopted an intellectual property rights (IPR) policy and contractual framework governed by French law.
+ETSI is recognised as the SSO in the European Union telecommunications sector.
+It has over 800 members from 66 countries across five continents.
+Its purposes, as set out in article 2 of its Statutes (5 April 2017), include the production of the technical standards which are necessary to achieve a large unified European market for telecommunications [etc] and to contribute to world wide standardization in that field.
+SSOs bring together industry participants to evaluate technologies for inclusion in a new standard.
+ETSI is the relevant SSO as the patents which are the subject of these appeals are the UK designations of European patents (UK patents) which have been declared to ETSI as essential.
+The relevant standards in these appeals are telecommunications standards for 2G (GSM), 3G (UMTS) and 4G (LTE) telecommunications equipment and devices.
+The seven SSOs have cooperated to form the 3rd Generation Platform Partnership (3GPP) to develop and oversee those standards.
+ETSI through its secretariat manages the process by which its members contribute to the development of international standards.
+Participants in SSOs have an incentive to put forward their technology as a component of a proposed standard as inclusion in the standard ensures a market for the technology.
+Alternative technologies which are not included in a standard may well disappear from the market.
+Participants also accept obligations to declare IPRs which might potentially have an effect on the implementation of standards developed by the SSOs.
+Although it is necessary to examine the arrangements in more detail below, it may be useful to give an overview of how ETSI deals with Essential IPRs, a term which we equate with SEPs, when it devises those standards.
+Owners of patented inventions which might be used in a telecommunications industry standard, which is under preparation, declare their patents to ETSI.
+When considering whether to include a technology in a standard, ETSI requires the patent owner to enter into an irrevocable undertaking or contract with it to allow implementers of the standard to obtain a licence to use the relevant patented technology on fair, reasonable and non discriminatory (FRAND) terms.
+If the declared patented invention is included in a standard and it is not possible to make, sell, use or operate etc equipment or methods which comply with the standard without infringing that IPR, it is treated as an Essential IPR.
+The irrevocable undertaking to give a licence on FRAND terms to implementers applies to any such Essential IPRs.
+But ETSI is not under an obligation to check whether patents declared to be essential are in fact essential.
+Nor does ETSI make any binding judgment on the validity or status of any such patents: ETSI Guide on IPRs (19 September 2013) (the Guidance) para 3.2.1.
+Those are matters for the relevant national courts.
+ETSI leaves it to the relevant parties, if they so wish, to resolve those questions by court proceedings or alternative dispute resolution: the Guidance para 4.3.
+The purpose of the ETSI IPR Policy is, first, to reduce the risk that technology used in a standard is not available to implementers through a patent owners assertion of its exclusive proprietary interest in the SEPs.
+It achieves this by requiring the SEP owner to give the undertaking to license the technology on FRAND terms.
+Secondly, its purpose is to enable SEP owners to be fairly rewarded for the use of their SEPs in the implementation of the standards.
+Achieving a fair balance between the interests of implementers and owners of SEPs is a central aim of the ETSI contractual arrangements.
+The ETSI IPR Policy
+The ETSI IPR Policy (the IPR Policy) is a contractual document, governed by French law.
+It binds the members of ETSI and their affiliates.
+It speaks (clause 15(6)) of patents which are inevitably infringed by the sale, lease, use, operation etc of components which comply with a standard as Essential IPR.
+By requiring an IPR holder whose invention appears to be an Essential IPR to give an irrevocable undertaking to grant a licence of the IPR on FRAND terms, it creates a stipulation pour autrui, in other words an obligation which a third party implementer can enforce against the IPR holder.
+The IPR Policy falls to be construed, like other contracts in French law, by reference to the language used in the relevant contractual clauses of the contract and also by having regard to the context.
+In this case, that context is both the external context and the internal context of the IPR Policy document itself, such as the policy objectives declared in the document.
+The external context includes (i) the Guidance (above) which ETSI has produced on the operation of the IPR Policy, (ii) ETSIs statutes (above), (iii) the globalised market which ETSI and other SSOs were and are seeking to promote, which we have discussed in para 4 above, and (iv) the fact that ETSI is a body comprising experts and practitioners in the telecommunications industry who would be expected to have a good knowledge of the territorial nature of national patents, the remedies available to patent owners against infringement of their patents, the need to modify by contract the application of patent law to promote the development of a globalised market in telecommunications products, and the practice of the industry in negotiating patent licensing agreements voluntarily.
+The policy statements which provide the internal context include the objectives set out in clause 3 of the IPR Policy.
+They include the statement in clause 3.1 that the IPR Policy: seeks to reduce the risk to ETSI, MEMBERS, and others applying ETSI STANDARDS and TECHNICAL SPECIFICATIONS, that investment in the preparation, adoption and application of STANDARDS could be wasted as a result of an ESSENTIAL IPR for a STANDARD or TECHNICAL SPECIFICATION being unavailable.
+That statement clearly reveals a policy of preventing the owner of an Essential IPR from holding up the implementation of the standard.
+But that policy is to be balanced by the next sentence of clause 3.1 which speaks of seeking a balance, when achieving that objective, between the needs of standardization for public use in the field of telecommunications and the rights of the owners of IPRs.
+The importance of protecting the rights of the owners of IPRs is declared in the second policy objective (clause 3.2) in these terms: IPR holders whether members of ETSI and their AFFILIATES or third parties, should be adequately and fairly rewarded for the use of their IPRs in the implementation of STANDARDS and TECHNICAL SPECIFICATIONS.
+This objective seeks to address the mischief of holding out by which implementers, in the period during which the IPR Policy requires SEP owners not to enforce their patent rights by seeking injunctive relief, in the expectation that licence terms will be negotiated and agreed, might knowingly infringe the owners Essential IPRs by using the inventions in products which meet the standard while failing to agree a licence for their use on FRAND terms, including fair, reasonable and non discriminatory royalties for their use.
+In circumstances where it may well be difficult for the SEP owner to enforce its rights after the event, implementers might use their economic strength to avoid paying anything to the owner.
+They may unduly drag out the process of licence negotiation and thereby put the owner to additional cost and effectively force the owner to accept a lower royalty rate than is fair.
+Having looked at context, we turn to the operative clauses of the IPR Policy.
+A member of ETSI is obliged to use its reasonable endeavours to inform ETSI in a timely manner of Essential IPRs during the development of a standard or technical specification.
+If a member submits a technical proposal for a standard or technical specification it is obliged to inform ETSI of its IPRs which might be essential (clause 4.1).
+Clause 4.3 confirms that this obligation of disclosure applies to all existing and future members of a patent family and deems the obligation in respect of them to be fulfilled if an ETSI member has provided details of just one member of the patent family in a timely manner, while also allowing it voluntarily to provide information to ETSI about other members of that family.
+A patent family is defined as all the documents having at least one priority in common, including the priority document(s) themselves and documents in this context means patents, utility models, and applications therefor (clause 15(13)).
+The patent family thus extends to patents relating to the same invention applied for and obtained in several jurisdictions.
+It shows an intention for the arrangement to apply internationally.
+This is important because the undertaking to grant a licence under clause 6, to which we now turn, extends to all present and future Essential IPRs in that patent family.
+The key to the IPR Policy is clause 6, which provides the legal basis on which an owner of an Essential IPR gives an irrevocable undertaking to grant a licence and thereby protects both ETSI and implementers against holding up.
+Clause 6.1 provides so far as relevant: When an ESSENTIAL IPR relating to a particular STANDARD or TECHNICAL SPECIFICATION is brought to the attention of ETSI, the Director General of ETSI shall immediately request the owner to give within three months an irrevocable undertaking in writing that it is prepared to grant irrevocable licences on fair, reasonable and non discriminatory (FRAND) terms and conditions under such IPR It provides that the licences must at least cover the manufacture of equipment, the sale, lease or other disposal of equipment so manufactured, and the repair, use or operation of such equipment.
+FRAND licensing undertakings made pursuant to clause 6 are intended to bind all successors in interest in respect of a SEP, and upon transfer of a SEP the SEP owner is required to take steps to ensure that this is achieved (clause 6.1bis).
+The undertaking made in respect of a specified member of a patent family is applied to all existing and future Essential IPRs of that patent family unless specified IPRs are excluded in writing when the undertaking is made (clause 6.2).
+It is envisaged in the IPR Policy that this process will usually take place while ETSI is working to create a standard because clause 6.3 provides that, if the IPR owner does not grant the requested undertaking, relevant office bearers in ETSI will decide whether to suspend work on the relevant parts of the standard or technical specification until the matter is resolved, or to submit any relevant standard or technical specification for adoption.
+Similarly, if, before a standard or technical specification is published, an IPR owner is not prepared to license an IPR, clause 8.1 provides for the adoption of a viable alternative technology for the standard or technical specification if such a technology exists.
+If such technology does not exist, clause 8.1 provides an option for work on the standard or technical specification to cease.
+If the refusal to grant a licence occurs after ETSI has published a standard or a technical specification, clause 8.2 provides the option of modifying the standard so that the relevant IPR is no longer essential.
+Clause 6bis instructs members of ETSI to use one of the declaration forms annexed to the Policy.
+So far as relevant, the licensing declaration is an irrevocable declaration by the declarant and its affiliated legal entities that, to the extent that disclosed IPRs are or become and remain Essential IPRs, they (a) are prepared to grant irrevocable licences in accordance with clause 6.1, and (b) will comply with clause 6.1bis.
+It appears from this brief review of the IPR Policy in its context that the following conclusions may be reached.
+First, the contractual modifications to the general law of patents are designed to achieve a fair balance between the interests of SEP owners and implementers, by giving implementers access to the technology protected by SEPs and by giving the SEP owners fair rewards through the licence for the use of their monopoly rights.
+Secondly, the SEP owners undertaking, which the implementer can enforce, to grant a licence to an implementer on FRAND terms is a contractual derogation from a SEP owners right under the general law to obtain an injunction to prevent infringement of its patent.
+Thirdly, the obtaining of undertakings from SEP owners will often occur at a time when the relevant standard is being devised and before anyone may know (a) whether the patent in question is in fact essential, or may become essential as the standard is developed, in the sense that it would be impossible to implement the standard without making use of the patent and (b) whether the patent itself is valid.
+Fourthly, the only way in which an implementer can avoid infringing a SEP when implementing a standard and thereby exposing itself to the legal remedies available to the SEP owner under the general law of the jurisdiction governing the relevant patent rights is to request a licence from the SEP owner, by enforcing that contractual obligation on the SEP owner.
+Fifthly, subject only to an express reservation entered pursuant to clause 6.2, the undertaking, which the SEP owner gives on its own behalf and for its affiliates, extends to patents in the same patent family as the declared SEP, giving the implementer the right to obtain a licence for the technology covering several jurisdictions.
+Finally, the IPR Policy envisages that the SEP owner and the implementer will negotiate a licence on FRAND terms.
+It gives those parties the responsibility to resolve any disputes as to the validity of particular patents by agreement or by recourse to national courts for determination.
+Industry practice in negotiating licensing agreements
+The parties do not dispute that SEP owners, which have a large portfolio of patents covering many countries, and implementers, which market their products in many countries, would as a matter of practice voluntarily negotiate worldwide licences, or at least licences from which a given territory is carved out while the rest of the world is licensed.
+Implementers in the telecommunications industry are often also owners of many SEPs and negotiate cross licences with other implementers.
+As Birss J explained in his judgment at first instance ([2017] EWHC 2988 (Pat); [2017] RPC 19, para 544), no rational business would seek to license products country by country if it could be avoided.
+This is, as Birss J said, in part because of the effort required to negotiate and agree so many different licences and thereafter to keep track of so many different royalty calculations and payments.
+It is also, as he recognised, because businesses and consumers will move mobile handsets across borders and an implementer would want to be able to bind the SEP owner into allowing the entry of otherwise unlicensed handsets into the jurisdictions in which the SEP owner had a valid SEP or valid SEPs.
+The Court of Appeal in its judgment in the Unwired appeal ([2018] EWCA Civ 2344; [2018] RPC 20, paras 55 56) also referred to the prohibitive cost of litigating the validity and essentiality of patents territory by territory.
+These obvious considerations must have been part of the factual background of which the expert framers of the IPR Policy were aware when they devised that Policy.
+The parties to the appeals
+In this judgment the court addresses three appeals.
+In the first, the appellants are Huawei Technologies Co Ltd (Huawei (China)), a Chinese company which develops telecommunications technology and also implements the technology of others, and Huawei Technologies (UK) Co Ltd (Huawei (UK)), a UK subsidiary of Huawei (China) (collectively Huawei).
+The respondents are Unwired Planet International Ltd and Unwired Planet LLC (collectively Unwired) which are registered in Ireland and the United States of America respectively.
+They are both intellectual property licensing companies (sometimes called Patent Assertion Entities) which obtain income from the licensing of patents to companies which make and sell telecommunications equipment.
+In 2013 Unwired acquired a portfolio of patents and patent applications from Ericsson, which was a major developer of telecommunications technology and a participant in standard setting.
+At the time of trial, the portfolio covered 42 countries and comprised 276 patents and applications declared as essential, of which 29 were UK patents or applications.
+Each of Ericsson and Unwired made an ETSI IPR Licensing Declaration and a Specific IPR Licensing Declaration in respect of patent families which encompass five of the UK patents on which Unwired sued Huawei in England.
+Ericsson had licensed patents to Huawei, including the UK patents which are the subject of these proceedings, but the licence expired in 2012.
+Huaweis continued use of the technology covered by the patents in suit forms the backdrop to its appeal.
+In the second and third appeals the appellants are respectively (i) Huawei and (ii) ZTE Corporation (ZTE (China)), a Chinese company, and its UK subsidiary ZTE (UK) Ltd (ZTE (UK)), collectively ZTE and both part of the ZTE group, which is a global supplier of telecommunications and information technology equipment.
+The respondent in both appeals is Conversant Wireless Licensing SRL (Conversant), a company registered in Luxembourg and part of a Canadian group of companies which is managed from the United States.
+It is an intellectual property licensing company or Patent Assertion Entity, which licenses patents for royalty income.
+Conversant acquired a portfolio of about 2,000 patents and patent applications, covering over 40 countries, from Nokia in 2011.
+Conversant pleads that the portfolio includes 28 patent families which are essential.
+It also pleads that it and/or Nokia have given an ETSI IPR Licensing Declaration and a Specific IPR Licensing Declaration in respect of its portfolio, which include the UK patents in suit, and that Conversant gave a General IPR Licensing Declaration on 22 July 2014.
+We also received short written interventions from Apple Inc, Ericsson and Qualcomm Incorporated, in the in which telecommunications industry set out their views on industry practice and on the principal issues of these appeals, including the interpretation of the IPR Policy.
+We are very grateful for their assistance.
+The legal proceedings important players three
+(i) Unwired v Huawei
+Unwired commenced proceedings in England on 10 March 2014 against Huawei, Samsung and Google, alleging infringement of the UK designation of six European patents (EP), and requesting, among other remedies, an injunction to prevent further infringement.
+Unwired began parallel proceedings in Germany at the same time.
+Before the proceedings commenced, Unwired and Huawei had discussed the possibility of Huawei buying some of Unwireds patents but Huawei did not do so.
+We discuss the further exchanges between Unwired and Huawei, both before the proceedings commenced and during the course of those proceedings, when we address the fourth issue (whether the court should refuse an injunction because of any failure to comply with the guidance of the CJEU in Huawei v ZTE) in paras 128 158 below.
+In 2015 and 2016 three trials were held to determine whether the UK patents in suit were valid and infringed.
+After a seven day trial, Birss J held that one patent (EP 744) was both valid and essential.
+His findings were upheld on appeal.
+In the second trial, after a hearing over eight days, two patents (EP 287 and EP 514) were held to be invalid, permission to appeal was granted, and the appeal was stayed in July 2017.
+In the third trial, after a five day hearing, a patent (EP 818) was held to be valid and essential.
+Permission to appeal was granted and the appeal was stayed in July 2017.
+The equivalent technical trial on the remaining UK SEP (EP 991) has been postponed indefinitely.
+At the same time Unwired brought proceedings in Germany, in which it had mixed success and from which appeals are pending.
+In particular, the German designation of EP 744 has been held to be valid but not infringed and an appeal on infringement is pending.
+The German designations of EP 287 and EP 514 have been held to be infringed but the Opposition Division of the European Patent Office has held those patents to be invalid and appeals from those decisions to the EPO Technical Board of Appeal are pending.
+The German designation of EP 818 has been held to be valid and infringed and those judgments have been upheld on appeal.
+The claims of EP 991 which were alleged to be infringed were revoked for the German designation and an appeal against that judgment is pending, as is a proceeding relating to the infringement of that patent.
+Huawei (China) challenged several of Unwireds patents in China.
+The Patent Re examination Board (PRB) has held that two Chinese family members of Unwireds European patents (EP 287 and 514) are invalid but those findings are under appeal.
+The PRB has held the Chinese family member of EP 744 to be valid and Huawei (China) has appealed.
+Huawei (China) has also challenged five other patents, which Unwired declared to be SEPs; three have been upheld, one upheld in part and one invalidated.
+Appeals from those decisions are pending.
+As matters currently stand, and subject to continuing appeal proceedings in Germany and China, Huawei has been held to be infringing one or more of Unwireds SEPs through its use of patented technology in both the UK and Germany and in China challenges to two patents have failed.
+Unwired settled with Google in 2015 and with Samsung in July 2016, after the technical trials of the UK patents but before Birss J held the trial to determine remedies for infringement of its UK patents, in an arrangement in which it granted Samsung a global licence for its portfolio.
+Unwired was sold to the PanOptis group of companies in July 2016.
+It was in serious financial trouble and was close to insolvency.
+We address in more detail the Samsung settlement when we discuss the third issue, namely what is required to make the licence offered by a SEP owner non discriminatory, in paras 105 127 below.
+Between October and December 2016 Birss J held a trial to determine the remedies for the infringement of Unwireds valid SEPs.
+In his judgment of 5 April 2017 ([2017] EWHC 711 (Pat)), later reissued with revised redactions on 30 November 2017, [2017] EWHC 2988 (Pat)) he concluded, among other things, that the FRAND undertaking was justiciable and enforceable in the English courts and that an implementer who refused to take a licence on terms which the court held to be FRAND exposed itself to an injunction for infringing a UK patent which the court held to be valid and infringed.
+He held that a willing licensor, with Unwireds portfolio of patents, and a willing licensee, with almost global sales, acting reasonably and on a willing basis would agree a worldwide licence.
+He concluded that such parties would regard the negotiation of licences country by country as madness.
+Having been presented with detailed expert evidence, Birss J determined the rates of royalty and other terms of the licence, so far as they were in dispute, that he considered to be FRAND.
+He held that in the circumstances a UK portfolio licence, for which Huawei had argued, would not be FRAND but that a FRAND licence between Unwired and Huawei had to be a worldwide licence.
+In case he was wrong in his conclusion that only a worldwide licence was FRAND, he also determined the rates and terms of a UK only licence covering Unwireds UK portfolio.
+The judge also made findings which are relevant to the third and fourth issues which we discuss below.
+He held that the royalty rates which he settled for the global licence were FRAND notwithstanding that they were higher than those in the licence which Unwired gave to Samsung.
+He also held that Unwired had not breached article 102 of the Treaty on the Functioning of the European Union (TFEU) and that the Huawei v ZTE case did not give Huawei a defence if it decided not to enter into the global licence which he had settled.
+In a hearing on 7 June 2017 Birss J granted an injunction to restrain infringement of the relevant UK patents with a proviso that the injunction would cease to have effect if the defendant entered into the FRAND global licence which he had settled.
+He stayed the injunction pending appeals: [2017] EWHC 1304 (Pat); [2017] RPC 20.
+Huawei has given certain undertakings to the court and has sought to conduct itself according to those undertakings pending the determination of all appeals in the English proceedings.
+Huawei appealed against Birss Js orders.
+On 23 October 2018 the Court of Appeal (Lord Kitchin, and Floyd and Asplin LJJ) handed down a judgment dismissing the appeal: [2018] EWCA Civ 2344; [2018] RPC 20.
+The court disagreed with the judges conclusion that in any particular case there could only be one set of FRAND terms.
+Ifa circumstance were to arise in which either a local or a global licence would be FRAND, it would be for the SEP owner to choose which it preferred because the SEP owner performed its obligation by offering a licence on FRAND terms.
+But this aspect of the judges reasoning had no material effect on the conclusion which he had reached because he had not erred in deciding that, in the circumstances of this case, only a global licence would be FRAND.
+(ii) Conversant v Huawei and ZTE
+Conversant commenced proceedings against Huawei and ZTE in England in July 2017.
+It seeks among other things a declaration that the global licence which it offered the defendants is FRAND, alternatively, if that is not granted, a determination of FRAND terms.
+It also seeks, after amending its pleadings, injunctions in respect of UK patents found to be valid and infringed which will last until the defendants enter into a licence which the court determines is FRAND.
+Huawei and ZTE challenged the jurisdiction of the English courts on the grounds of (a) a lack of jurisdiction to determine the validity of foreign patents and (b) forum non conveniens.
+Conversant sought permission to serve the Chinese defendants out of the jurisdiction.
+In a judgment handed down on 16 April 2018, Henry Carr J dismissed the jurisdiction challenges and granted Conversants application to serve out of jurisdiction: [2018] EWHC 808 (Pat); [2018] RPC 16.
+Commenting on Birss Js judgment, he held that the English courts had jurisdiction to enforce the contract contained in the IPR Policy and to determine such terms of a licence as were in dispute.
+Enforcing the contract and determining the terms of a FRAND licence did not involve the English courts intruding on the jurisdiction of foreign courts in relation to the validity or infringement of foreign patents.
+The licences determined by the English courts could be adjusted to reflect the rulings of foreign courts on such matters.
+The effect of this jurisdiction was to put the onus on an implementer to challenge foreign patents once the court had found a UK SEP to be valid and infringed.
+The royalty rates which the court could adopt would be based on evidence of comparable real life licences which could be expected to take into account the competition policies of foreign states.
+He concluded on the basis of expert legal evidence led before him that the Chinese courts did not have jurisdiction to determine FRAND royalty rates in respect of non Chinese patents without the agreement of the parties.
+He regarded it as no more than speculative whether the Chinese courts would have such jurisdiction, even if the parties consented, and he rejected the plea of forum non conveniens.
+Before the hearing in England on the jurisdiction challenges, Huawei and ZTE raised proceedings in China to challenge the validity of Conversants declared Chinese patents.
+After Henry Carr J handed down his judgment on the jurisdiction challenge in England, Conversant raised proceedings in Germany against Huawei (China) and ZTE (China) and their German subsidiaries claiming infringement of its German patents.
+In England, four UK patents were in suit but trials of two of them were stayed once they had expired.
+After a technical trial of EP (UK) 659 Arnold J handed down a judgment on 4 July 2019 in which he held that the patent was infringed but that the patent was invalid for added matter.
+Conversant was given permission to appeal and that appeal has now taken place.
+The technical trial of EP (UK) 177 and its divisional family members (EP (UK) 722 and EP (UK) 206) took place in the autumn of 2019.
+Birss J handed down a judgment on 8 January 2020 in which he held that EP (UK) 177 and EP (UK) 722 were partially valid and infringed and that EP (UK) 206 was invalid.
+An appeal is scheduled to take place in November 2020.
+A FRAND trial was listed for April 2020 with a time estimate of 15 days but was adjourned due to the Coronavirus pandemic and to await the outcome of these appeals.
+Huawei and ZTE appealed the judgment of Henry Carr J on jurisdiction.
+On 30 January 2019, the Court of Appeal (Patten, Floyd and Flaux LJJ) handed down judgment, dismissing the appeal: [2019] EWCA Civ 38; [2019] RPC 6.
+In the Conversant appeals to this court therefore, Huaweis and ZTEs cases relate to the preliminary questions of jurisdiction and forum non conveniens.
+In the Chinese proceedings Huawei (China) and ZTE (China) challenged 11 Chinese patents.
+As at the date of the chronology which the parties provided, the PRB had ruled that of those 11, eight are invalid, two are valid and one is partially valid.
+Those decisions are under appeal.
+None of the Chinese patents held to be valid are of the same families as the UK patents in suit.
+Huawei (China) and ZTE (China) have raised separate proceedings in China with the aim of obtaining a determination of FRAND royalty rates for Conversants Chinese patents if they are found to be valid and essential.
+Huawei and ZTE have offered Conversant to allow the Chinese courts to address global FRAND terms and rates for Conversants non Chinese patents in its portfolio.
+Conversant did not accept those offers and Henry Carr J held that it acted reasonably in so doing.
+In the German proceedings Conversant has claimed infringement of the German designations of EP 177, EP 659 and EP 986.
+Hearings on those claims took place on 18 June 2020 and Conversant has given undertakings which seek to address the possibility of conflict between judgments of the English courts and the German courts.
+(iii) Overview of the markets and the proceedings
+It is clear from the UK, German and Chinese proceedings that ascertaining the validity, essentiality and infringement of national patents within a portfolio by legal proceedings in several different jurisdictions involves the expenditure of a prodigious amount of money and effort by both claimants and defendants, although the proceedings in China are significantly less costly than those in the West.
+It is not disputed that it would be impracticable for the parties to litigate these matters in each of the countries which the portfolio covers.
+It also appears to be clear and it is not disputed that within a substantial portfolio of patents there may be many patents, which (if subject to examination in proceedings) would be found to be invalid in whole or in part or not infringed by the technology used in the standard.
+These are in our view relevant facts when one addresses the fair balance between the interests of the SEP owner and the implementer which the IPR Policy seeks to achieve.
+At the same time, Huawei and ZTE point out that only a very small proportion of their worldwide sales are made in the UK.
+Huawei manufactures in China and its principal market is in China.
+It asserts that 64% of its relevant sales occur in China or in countries in which Unwired has no patent protection and is dependent on the validity and infringement of Chinese patents for its claim for royalties.
+In relation to the Conversant claim, Huawei asserts that the Chinese market accounts for 56% of its groups worldwide sales on which Conversant makes claims, and a further 19% of such sales occur in countries in which Conversant has no patents, so that Conversants claims in those countries depend on the Chinese patents.
+The UK market comprises only 1% of Huaweis sales of those products.
+Similarly, ZTE manufactures in China and in the first six months of 2017 60% of the groups operating revenue was from China.
+At that time only 0.07% of its turnover was generated in the UK.
+Thus, Huawei and ZTE submit that questions as to the validity and infringement of Chinese patents, which are within the jurisdiction of the Chinese courts, are of central importance to the value of a global licence of declared SEPs.
+The force of this contention can be seen from the current state of play in litigation which Huawei commenced in China, seeking declarations that Conversants Chinese patents were invalid or were not essential.
+Of the 15 patents which Conversant put forward for trial from its portfolio of Chinese patents, 14 were held to be either invalid or not infringed and only one was found to be essential but the trial of its validity has yet to take place.
+In China, the Nanjing Intermediate Peoples Court of Jiangsu Province in a judgment dated 16 September 2019 in actions raised by Huawei ((2018) Su 01 Min Chu No 232, 233 and 234) criticised Conversant for seeking to obtain a global rate for its patents from a foreign judge without obtaining the view of the Chinese courts on the validity and infringement of its Chinese patents.
+As we have said, many of the foreign judgments have been appealed, but they nonetheless show what is in fact common ground between the parties, that declared SEPs within a portfolio are often invalid or not essential.
+Before turning to the challenges raised in these appeals we set out briefly the methodology which Birss J adopted in determining what was a FRAND licence between Unwired and Huawei.
+An understanding of the nature of the exercise which he undertook is important to an analysis of the relationship between the determination of the terms of a FRAND licence on the one hand and, on the other, the exclusive right of foreign courts to adjudicate on the validity and infringement of their national patents.
+(iv) Birss Js methodology in the Unwired case
+Birss J did not purport to determine the validity of any non UK patent or to find that any such patent was or was not a SEP.
+What he sought to do was to value the portfolio as a whole, recognising that it was likely to include patents which were not valid and patents which although valid were not infringed and so were not SEPs.
+One possible method, called the top down method, was to take a view on what the total aggregate royalty burden would be for all the intellectual property relating to the standardised telecommunications technology in a product such as a handset.
+We refer to that aggregate burden as T. Various companies in the industry had made public statements as to the value of T.
+The task was then to share out the aggregate royalty T across all licensors in proportion to the value of each licensors patent portfolio as a share S of the total relevant patent portfolio essential to the standard.
+By this method the FRAND rate for a portfolio was the product of T and S (ie T x S).
+The second method was to use comparable licences.
+These are licences which parties engaged in the telecommunications industry had already agreed and operated.
+As the experts who gave evidence recognised and Birss J accepted, many patent licences including cross licences may have different terms, including different ways of calculating royalties, which make comparison difficult.
+The experts had to adopt methods of unpacking the licences in order to make them comparable and this introduced uncertainty into the exercise of comparison.
+Unwired had obtained most of the patents in its portfolio from Ericsson.
+Thus, Ericssons licences in the past had included all the SEPs in issue.
+That made Ericssons licences particularly relevant as comparables.
+As Birss J explained (para 180), if the rate for Ericssons portfolio was E and the relative value of Unwireds portfolio to Ericssons portfolio was R, the Unwired rate is E x R.
+Birss J accepted evidence that parties when agreeing licences of a substantial portfolio of declared SEPs did not evaluate the importance of individual patents but adopted methods involving patent counting.
+While it may be possible sometimes to identify a patent which is a keystone invention underpinning the technical approach on which a standard is based, none of Unwireds patents were in that category.
+Patent counting therefore involved identifying from among the declared SEPs those which were to be treated as essential, which he described as Relevant SEPs.
+There is a problem that more patents are declared to be essential than in fact are essential.
+This problem of over declaration is in part the result of the IPR Policy process which requires patent owners to declare SEPs in a timely manner when a standard is being prepared, as it encourages patent owners to err on the safe side by making a declaration.
+In part, there are difficulties in interpreting both the patents and the standards.
+In part also, patent claims are amended over time; different national patents within a patent family will vary in scope around the world; and standards themselves will vary over time.
+Further, the process of negotiating rates by counting patents within a portfolio creates a perverse incentive to over declare.
+This phenomenon must be recognised and be taken into account when identifying Relevant SEPs and calculating shares and ratios S and R above.
+Significantly, Birss J held, on the evidence led before him, that no one in counting Relevant SEPs takes account of the validity of the patents.
+Much of Birss Js impressive judgment involved an analysis of the competing methods by which the parties sought to carry out this exercise.
+He also analysed a number of licences which Unwired and Ericsson had agreed and identified those licences to which Ericsson was a party on which he was prepared to place any weight (para 462) in determining a rate for E in relation to each of the standards for handsets and infrastructure.
+Birss J also looked for guidance to decisions of courts in Japan and China (paras 472 474).
+The Intellectual Property High Court in Japan used the top down method described above (ie looking to the total royalty burden) in Apple Japan v Samsung Electronics (Case No 2013 [Ne] 10043).
+In China, the Guangdong High Peoples Court in Huawei v Interdigital (2013), Guangdong High Ct Civ.
+Third Instance No 305, fixed a FRAND rate for Interdigitals portfolio in China by unpacking other Interdigital licences.
+The Chinese courts judgment supported Huaweis case that rates in China were low in comparison with rates elsewhere.
+But of more significance for present purposes is the fact that the Japanese and Chinese courts used methods similar to those presented to and adapted by Birss J, who relied principally on the analysis of comparable licences and used the top down method as a cross check.
+Birss J, having heard the evidence, including that of the parties experts, and having analysed comparable international licences, concluded that on a FRAND approach the royalty rates for China would be 50% lower than the rest of the world.
+He divided the rest of the world into major markets and other markets and held that the rate applicable in the latter markets would be the same as in China.
+He provided a mechanism for the adjustment of royalties payable in major markets if successful challenges to the validity or infringement of SEPs reduced the number of declared SEPs in any of those markets (paras 582 592).
+In deciding that a worldwide licence was FRAND Birss J had regard to practice in the telecommunications industry to agree portfolio licences and observed that every patent licence which the parties had produced in the trial bundles was a worldwide portfolio contract, although some licences carved out a particular territory while licensing the rest of the world (paras 524 534).
+Unwireds portfolio covered 42 countries and was large enough that it would not be practicable to fight over every patent.
+A willing licensor of such a portfolio and a willing licensee such as Huawei with global sales would agree on a worldwide licence (paras 538 543).
+He recorded that it was common ground that the industry assessed patent families rather than individual patents within a family (para 546).
+He thus drew on industry practice in deciding that a FRAND licence would be a worldwide licence.
+Against that background we turn to address the first issue.
+Issue 1: Whether the English courts have jurisdiction and may properly exercise a power without the agreement of both parties (a) to grant an injunction restraining the infringement of a UK SEP unless the defendant enters into a global licence on FRAND terms of a multinational patent portfolio and (b) to determine royalty rates and other disputed items for a settled global licence and to declare that such terms are FRAND.
+The principal arguments which Huawei advances against the finding that it must take a worldwide licence of the SEP owners relevant patents on FRAND terms fixed by the English court in order to avoid an injunction restraining the infringement of a UK SEP are as follows.
+First, the English courts are not entitled to grant an injunction for the infringement of a UK patent unless an implementer agrees to take a licence of disputed foreign patents because this involves the implementer having to compromise foreign rights, including the right to challenge (a) the validity of those foreign patents and (b) the assertion that they are SEPs in the use of the standards in the foreign jurisdictions.
+The validity or infringement of disputed foreign patents is not justiciable in the courts of England and Wales.
+If the declared SEPs were foreign patents, the relevant national courts alone can determine validity and infringement.
+Foreign patents should be exposed to proper scrutiny by the national courts which determine their validity and infringement.
+An English court cannot compel a company to take a licence in respect of rights which may not exist.
+Thus, once an implementer disputes the validity or infringement of a foreign patent, the English courts have no jurisdiction to require the implementer to take a global licence to avoid an injunction.
+Secondly, the English courts in so acting are fixing the terms and the royalty rates on which foreign patents are to be licensed without regard to what the foreign courts with jurisdiction over the foreign patents would decide.
+English judges were, in Mr Howard QCs words, setting up the English jurisdiction as a de facto international or worldwide licensing tribunal for the telecommunications industry.
+In so acting the English courts were out of step with the approach of other national courts.
+Thirdly, a clear distinction falls to be drawn between what two global telecommunications companies might do voluntarily in a commercial negotiation to license patents to enable the conduct of a global business and what a national court may impose on such companies.
+Companies may choose to compromise rights which otherwise might be enforced and challenges to validity and infringement which might otherwise be made; national courts cannot or should not impose such compromises.
+Fourthly, the IPR Policy, when properly construed, removes the SEP owners right to obtain an injunction and limits its remedy to monetary compensation for infringement of such patents as the SEP owner has established or the implementer has agreed are valid and infringed.
+Once a SEP owner has established that a national patent was valid and infringed, a national court can determine the terms of a licence of such a patent if the parties cannot agree on those terms.
+The IPR Policy does not overturn the legal right of an implementer to challenge the validity of a patent or to seek to establish that the patent was not infringed.
+The IPR Policy, it is submitted, is not focussing on an international portfolio of patents but addresses particular SEPs, the validity and infringement of which, if challenged, would have to be established in national courts.
+In construing the IPR Policy it is important to note that ETSI has not established an international tribunal or forum to determine the terms of global licences of portfolios of patents.
+This points against a construction which would allow a national court to determine a global licence.
+Fifthly, Huawei also submits that it is improper for an English court to exclude the products of implementers, both handsets and infrastructure, from the UK market as the result of an infringement of a SEP.
+Such a remedy is said to be disproportionate.
+It is also said to be anomalous that an implementer should be liable only for damages for infringing the established UK SEP if it chose to withdraw from the UK market but that infringement of that patent should entitle the SEP owner to receive global royalties if the implementer wished to market its products in the UK.
+Huawei also argues that there is a fundamental difference between what commercial parties may choose to do in their own interests and what an intellectual property court can impose on them.
+It also expresses concern about the role of Patent Assertion Entities in litigation to enforce SEPs.
+Huawei also argues, based on general principles of English equity, that the only appropriate remedy which the English courts should consider is to address only the UK rights and to require an implementer to enter into a licence to pay in the future the same royalty as it has awarded as damages for past infringement.
+This is an argument which we address under Issue 5 in paras 159 169 below.
+ZTE generally supports Huaweis submissions but accepts that patent by patent licensing is unlikely to be FRAND.
+It focusses its case on jurisdiction on questions of comity and as a fall back argues forum non conveniens.
+It submits that the determination by one national court of a worldwide FRAND licence raises issues of comity as it amounts to interference with the patent regimes of other states which adopt different approaches to the licensing of their national patents and as to what terms would be FRAND.
+Such a licence could also impair a partys ability to comply with foreign law such as the competition law of a country in which it was active.
+Mr Bloch QC submits that the English courts have placed themselves out on a limb through their willingness to determine the terms of a compulsory licence of foreign patents.
+We discuss in more detail his arguments on forum non conveniens under issue 2 below (paras 92 104).
+In addressing the submissions set out above, we recognise, as is undisputed, (a) that questions as to the validity and infringement of a national patent are within the exclusive jurisdiction of the courts of the state which has granted the patent and (b) that in the absence of the IPR Policy an English court could not determine a FRAND licence of a portfolio of patents which included foreign patents.
+It is the contractual arrangement which ETSI has created in its IPR Policy which gives the court jurisdiction to determine a FRAND licence and which lies at the heart of these appeals.
+We therefore address first the fourth of Huaweis submissions concerning the interpretation of the IPR Policy.
+In our view, the submission attaches too much weight to the protection of implementers against holding up, which is the purpose stated in clause 3.1, and fails to give due weight to the counterbalancing purpose of clause 3.2, which seeks to secure fair and adequate rewards for SEP holders and which requires protection against holding out.
+The suggestion that the IPR Policy removes a SEP owners right to exclude implementers from a national market while requiring the SEP owner to establish the validity and infringement of each of its alleged SEPs, in the absence of a concession by the implementer, runs counter to the balance which the IPR Policy seeks to achieve.
+The submission also fails adequately to take into account the external context which we have discussed.
+Operators in the telecommunications industry or their assignees may hold portfolios of hundreds or thousands of patents which may be relevant to a standard.
+The parties accept that SEP owners and implementers cannot feasibly test the validity and infringement of all of the patents involved in a standard which are in a sizeable portfolio.
+An implementer has an interest in taking its product to the market as soon as reasonably possible after a standard has been established and to do so needs authorisation to use all patented technology which is comprised in the standard.
+The implementer does not know which patents are valid and infringed by using the standard but needs authority from the outset to use the technology covered by such patents.
+Similarly, the owner who declares a SEP or SEPs does not know at this time which, if any, of its alleged SEPs are valid and are or will be infringed by use pursuant to the developing standard.
+The practical solution therefore is for the SEP owner to offer to license its portfolio of declared SEPs.
+That is why it is common practice in the telecommunications industry for operators to agree global licences of a portfolio of patents, without knowing precisely how many of the licensed patents are valid or infringed.
+It is a sensible way of dealing with unavoidable uncertainty.
+It ought to be possible for operators in an industry to make allowance for the likelihood that any of the licensed patents are either invalid or not infringed, at least in calculating the total aggregate royalty burden in the top down method.
+By taking out a licence of an international portfolio of generally untested patents the implementer buys access to the new standard.
+It does so at a price which ought to reflect the untested nature of many patents in the portfolio; in so doing it purchases certainty.
+The IPR Policy was agreed against that background and the undertaking required from the SEP owner likewise needs to be interpreted against that background.
+We therefore do not construe the IPR Policy as providing that the SEP owner is entitled to be paid for the right to use technology only in patents which have been established as valid and infringed.
+Nor do we construe the IPR Policy as prohibiting the SEP owner from seeking in appropriate circumstances an injunction from a national court where it establishes that an implementer is infringing its patent.
+On the contrary, the IPR Policy encourages parties to reach agreement on the terms of a licence and avoid litigation which might involve injunctions that would exclude an implementer from a national market, thereby undermining the effect of what is intended to be an international standard.
+It recognises that if there are disputes about the validity or infringement of patents which require to be resolved, the parties must resolve them by invoking the jurisdiction of national courts or by arbitration.
+The possibility of the grant of an injunction by a national court is a necessary component of the balance which the IPR Policy seeks to strike, in that it is this which ensures that an implementer has a strong incentive to negotiate and accept FRAND terms for use of the owners SEP portfolio.
+The possibility of obtaining such relief if FRAND terms are not accepted and honoured by the implementer is not excluded either expressly or by necessary implication.
+The IPR Policy imposes a limitation on a SEP owners ability to seek an injunction, but that limitation is the irrevocable undertaking to offer a licence of the relevant technology on FRAND terms, which if accepted and honoured by the implementer would exclude an injunction.
+The IPR Policy is intended to have international effect, as its context makes clear.
+This is underlined by the fact that the undertaking required of the owner of an alleged SEP extends not only to the family of patents (subject only to reservations entered pursuant to clause 6.2 of the IPR Policy) but also to associated undertakings, as stated in the declaration forms in the IPR Policy.
+In imposing those requirements and more generally in its requirement that the SEP owner makes an irrevocable undertaking to license its technology, ETSI appears to be attempting to mirror commercial practice in the telecommunications industry.
+We do not accept the distinction which Huawei draws (in its third submission above (para 53)) between voluntary agreements which operators in the telecommunications industry choose to enter into on the one hand and the limited powers of a court on the other, since the IPR Policy envisages that courts may determine whether or not the terms of an offered licence are FRAND when they are asked to rule upon the contractual obligation of a SEP owner which has made the irrevocable undertaking required under the IPR Policy.
+It is to be expected that commercial practice in the relevant market is likely to be highly relevant to an assessment of what terms are fair and reasonable for these purposes.
+Moreover, the IPR Policy envisages that the parties will first seek to agree FRAND terms for themselves, without any need to go to court; and established commercial practice in the market is an obvious practical yardstick which they can use in their negotiation.
+In our view the courts below were correct to infer that in framing its IPR Policy ETSI intended that parties and courts should look to and draw on commercial practice in the real world.
+We now turn to the submission (para 51 above) that the English courts have no jurisdiction to determine the terms of a licence involving disputed or potentially disputed foreign patents.
+We disagree.
+If the judgments of the English courts had purported to rule on the validity or infringement of a foreign patent, that would indeed be beyond their jurisdiction.
+But that is not what Birss J and the Court of Appeal have done.
+Instead, they looked to the commercial practice in the industry of agreeing to take a licence of a portfolio of patents, regardless of whether or not each patent was valid or was infringed by use of the relevant technology in the standard, and construed the IPR Policy as promoting that behaviour.
+We agree with the parties that the FRAND obligation in the IPR Policy extends to the fairness of the process by which the parties negotiate a licence.
+If an implementer is concerned about the validity and infringement of particularly significant patents or a group of patents in a particular jurisdiction which might have a significant effect on the royalties which it would have to pay, it might in our view be fair and reasonable for the implementer to reserve the right to challenge those patents or a sample of those patents in the relevant foreign court and to require that the licence provide a mechanism to alter the royalty rates as a result.
+It might also be fair and reasonable for the implementer to seek to include in the licence an entitlement to recover sums paid as royalties attributable to those patents in the event that the relevant foreign court held them to be invalid or not infringed, although it appears that that has not been usual industry practice.
+Huawei suggests that it would serve no purpose for a UK court to fix the terms of a global licence but to provide for the alteration of royalties in the event of successful challenges to declared SEPs overseas.
+This would, it suggests, reduce a licence to an interim licence.
+Again, we disagree.
+Under a FRAND process the implementer can identify patents which it wishes to challenge on reasonable grounds.
+For example, in the Conversant case, it might well be argued by Huawei or ZTE at trial that the obligation of fairness and reasonableness required any global licence granted by Conversant to include provision to allow for Huawei or ZTE to seek to test the validity and infringement of samples of Conversants Chinese patents, with the possibility of consequential adjustment of royalty rates, given the importance of China as a market and a place of manufacture.
+In other cases, such challenges may make little sense unless, at a cost proportionate to what was likely to be achieved in terms of eliminating relevant uncertainty, they were likely significantly to alter the royalty burden on the implementer.
+In the Unwired case, Huawei appears not to have sought any provision in the draft global licence to alter the royalties payable if Unwireds Chinese patents or a relevant sample of them were successfully challenged.
+As we have said (para 47 above) the only adjustment mechanism which the draft licence provided was to the royalties payable in relation to major markets.
+Huawei has not appealed the detailed terms of that draft licence but has focussed its attack on the principle of a national court determining that a global licence was FRAND without the consent of the parties to such an exercise.
+That notwithstanding, it would be open to Huawei in another case to seek to make such a reservation when negotiating or debating in court the terms of a licence and to seek to persuade the court at first instance that the reservation was appropriate in a FRAND process.
+We turn to the submission (para 52 above) that the English courts are out of step with foreign courts in requiring an implementer to enter into a global licence in order to avoid an injunction for infringement of a national patent and in being prepared to determine the disputed terms of a global FRAND licence.
+Huawei suggests that the English courts are uniquely setting themselves up as a de facto global licensing tribunal.
+We are not persuaded by this submission.
+The Court of Appeal in the Unwired case (paras 59 74) analysed the cases which the parties had presented to the court and concluded that they did not support the contention that Birss Js approach lost sight of the territorial nature of patents and did not accord with the approach taken in other jurisdictions.
+We agree.
+We recognise that Birss J has gone further than other courts have done thus far in his willingness to determine the terms of a FRAND licence which the parties could not agree, but that does not involve any difference in principle from the approach of courts in other jurisdictions.
+Otherwise his approach is consistent with several judgments in other jurisdictions, which, as this is a developing area of jurisprudence, we now examine briefly.
+The principles stated in those judgments contemplate that, in an appropriate case, the courts in the relevant jurisdictions would determine the terms of a global FRAND licence.
+The United States: the US Court of Appeals Federal Circuit has recognised that an injunction against infringement of a national patent may be an appropriate remedy if an implementer refuses to enter into a FRAND licence or unreasonably delays in negotiating such a licence: Apple Inc v Motorola Inc 757 F 3d 1286 (Fed Circuit 2014), Judge Reyna at para 49, p 1332, with whom Chief Judge Rader agreed on this point.
+That case did not involve a proposed global FRAND licence.
+The court did not pronounce an injunction in that case because it considered on the facts of the case that the claimant had not suffered irreparable harm and that monetary compensation would suffice.
+But the judgment is clearly inconsistent with the submission that the standard setting regime which obliges a SEP owner to offer FRAND licences confines the SEP owner to monetary remedies.
+Three judgments in a dispute between Microsoft Inc and Motorola Inc show the willingness of US courts to enforce the contractual obligation on a SEP owner in a SSO policy to offer an implementer a global FRAND licence (the specific obligations in the case were to offer a licence on reasonable and non discriminatory, ie RAND, terms, but no relevant distinction arises from that).
+The case was concerned with obligations owed by a SEP owner in relation to a SSO, the International Telecommunication Union (ITU), in relation to video coding technology and the Institute of Electrical and Electronics Engineers (IEEE) in relation to wireless local area network (WLAN).
+The relevant policies of the IEEE and the ITU expressly envisaged the grant of worldwide licences, but as we have construed the IPR Policy as encompassing the grant of such licences, that is not a basis for distinguishing these cases.
+Motorola offered Microsoft a worldwide licence of its portfolio of patents which might be SEPs but Microsoft disputed the offers, arguing that Motorola had breached its obligation to offer a RAND licence because its proposed royalty rates were unreasonable.
+Microsoft commenced proceedings in the USA alleging breach of contract and Motorola counterclaimed that it had offered a RAND licence and that Microsoft had rejected it and so had lost its entitlement to a RAND licence.
+Several months after Microsoft initiated its lawsuit in the USA, Motorola commenced proceedings in Germany to enforce its German patents.
+Microsoft sought an anti suit injunction to prevent the enforcement of any injunction which the German courts might grant to enforce the European patents.
+In Microsoft Corpn v Motorola Inc 871 F Supp 1089 (W D Wash 2012) Judge Robart granted Microsoft a preliminary anti suit injunction.
+In his reasoning he recorded that a trial had been fixed in the USA to determine the RAND terms and conditions of any licence which Motorola was obliged to provide, including a RAND royalty rate.
+He stated (p 9): Thus, at the conclusion of this matter, the court will have determined (1) whether Microsoft is entitled to a worldwide RAND license for Motorolas standard essential patents, including the European Patents, (2) whether Microsoft has repudiated its rights to such a license, (3) whether Motorola may seek injunctive relief against Microsoft with respect to its standard essential patents, and (4) in the event Microsoft is entitled to such a license, what the RAND terms are for such a license.
+He found that the US action was dispositive of whether a German court might issue an injunction against Microsoft.
+He also observed that his injunction did not prohibit the pursuit of the German proceedings in so far as Motorola sought rulings on the validity or infringement of the German patents and non injunctive relief.
+On appeal, the US Court of Appeals Ninth Circuit (Microsoft Corpn v Motorola Inc 696 F 3d 872 (9th Cir 2012)) upheld Judge Robarts decision.
+In her judgment Circuit Judge Berzon explained that the US courts had jurisdiction in a contract action ie an action to enforce the obligation on the SEP owner to grant a RAND licence and therefore not enforce its patents to grant an anti suit injunction against enforcement of foreign patents covered by the contractual obligation.
+She observed that the ITU contract encompassed all of Motorolas SEPs worldwide and stated (p10): When that contract is enforced by a US court, the US court is not enforcing German patent law but, rather, the private law of the contract between the parties.
+Although patents themselves are not extraterritorial, there is no reason a party may not freely agree to reservations or limitations on rights that it would have under foreign patent law (or any other rights that it may have under foreign law) in a contract enforceable in US courts.
+She went on to observe (p 12) that an anti suit injunction was less likely to threaten comity in the context of a private contractual dispute than in a dispute involving public international law or government litigants.
+The dispute then returned to Judge Robart.
+The Court of Appeal discussed this decision (Microsoft Corpn v Motorola Inc. Case C10 1823JLR, 2013 US Dist LEXIS 60233) in para 69 of its judgment in the Unwired case.
+As the parties remained in disagreement as to the meaning of RAND, and that dispute needed to be resolved in order to ascertain whether Motorola was in breach of its obligation to license its patents on RAND terms, Judge Robart held a trial to determine a RAND licensing rate and a RAND royalty range for Motorolas worldwide portfolio of patents.
+In his judgment he used evidence of real world negotiations in simulating the hypothetical negotiation to determine the rate and range.
+Mr Howard seeks to distinguish this case on the basis that Microsoft had consented to the courts determination of the RAND terms.
+We do not consider that to be a material distinction as Huawei has sought the determination of a FRAND licence and because, in any event, the operation of the ETSI regime requires the SEP owner to offer a FRAND licence and the implementer to decline it as preconditions of the grant of an injunction.
+We were referred to Apple Inc v Qualcomm Inc, Case No 3:17 cv 00108 GPC MDD, which is a judgment by District Judge Curiel in the US District Court, Southern District of California given on 7 September 2017, which the Court of Appeal discussed in paras 67 and 68 of its judgment.
+In this case Apple was the implementer and Qualcomm the SEP owner.
+Apple challenged Qualcomms patents in eleven lawsuits in several jurisdictions on the grounds of invalidity, non infringement and breaches of foreign competition law.
+Apples claim in the US proceedings included assertions of breach of contract and challenges to Qualcomms US patents on the ground of invalidity or non infringement and also on grounds of anti trust/competition law.
+In a counterclaim Qualcomm sought a declaration that it had complied with its irrevocable undertaking given pursuant to ETSIs IPR Policy and asked the court to hold that particular offers were FRAND or in the alternative to determine worldwide FRAND royalty rates.
+Judge Curiel refused Qualcomms application for an anti suit injunction on grounds which included that the determination of the global FRAND issue would not dispose of Apples foreign claims, which challenged the foreign patents.
+The judge did not decide whether he had authority to adjudicate upon Qualcomms claim for a worldwide FRAND determination.
+His decision therefore is not inconsistent with Birss Js judgment.
+We were referred to orders of the US International Trade Commission and the US Federal Trade Commission which treated offers by a SEP owner of global licences to prospective licensees as FRAND.
+We were also referred to a District Court judgment in Optis Wireless Technology LLC v Huawei Case No 2:17 cv 00123 JRG RSP but it has no bearing on the matters before us.
+Germany: In Pioneer v Acer 7 O 96/14, which the Court of Appeal discussed in para 63 of its judgment, the Regional Court of Mannheim in a judgment dated 8 January 2016 considered the geographical scope of a FRAND licence in the light of the usual practices of the industry.
+Pioneer sought to restrain infringement of its German patent.
+As it owned SEPs in many countries and as the defendant was active in many countries it offered to grant the defendants parent company a worldwide portfolio licence.
+The defendant implementer was prepared to take a licence only of Pioneers German patent rights.
+The court held that the defendants offer was not FRAND and granted an injunction against infringement.
+In so concluding it drew on the jurisprudence of the CJEU in the application of competition law to the practices of SEP owners and implementers, which emphasised the importance of complying with usual industry practices, and held that in the light of such practices the offer of a Germany only licence was not FRAND.
+In accepting as FRAND the SEP owners offer of a worldwide licence it stated (para 119): It does not matter that the offer calls for a worldwide portfolio license and was addressed to the parent company as contract partner and not to the Defendant itself.
+The [CJEU] relies essentially on the customary practices current in the particular industry.
+In the view of the chamber, it is the aim of the behavior program set forth by the [CJEU] to lead the parties to license agreements which are otherwise also customary in the particular business area.
+Evidently it was not the intent of the [CJEU] to artificially bring about licence contracts stipulated for individual countries or even separate licence contracts for each individual SEP used when this does not comport with the business practices of the particular business area.
+Such a market intervention ignoring the market realities was not the purpose of the [CJEU].
+In the experience of the chamber, it corresponds to the usual practices in the area of worldwide applicable standards to make license contracts for SEPs in the case of a patent user active in many affected countries with patent protection not individually for each country with the group company of the patent user there for each individual patent, but instead to stipulate worldwide portfolio licences with the group parent, which the individual national group companies can then also utilize.
+This judgment is clearly consistent with and supports Birss Js approach both of looking to industry practice when determining the geographical scope of a FRAND licence and of granting an injunction against infringement of a national patent if the implementer is not prepared to accept or delays in accepting the offer of a FRAND licence.
+The judgment of the District Court of Dsseldorf in St Lawrence v Vodafone 4a 073/14 dated 31 March 2016, which is discussed in para 64 of the Court of Appeals judgment, is consistent with and supports this approach.
+The SEP owner offered a worldwide licence to the implementer, covering its affiliated companies, in accordance with standard industry practice, and received a counter offer from the implementer, which was active worldwide, to license only its German patents.
+The court held that the offer by the SEP owner of a worldwide licence would normally be FRAND unless the circumstances of the case justified a different conclusion.
+The court treated the SEP owners offer as FRAND appropriate and held that the failure of the implementer to make a prompt counter offer which was FRAND exposed it to an injunction.
+The court also held that the implementer could reserve the right to challenge the validity and infringement (standard essentiality) of the SEP but could not delay concluding the contract of licence for that nor, because it was not consistent with industry practice in licensing contracts, could the implementer refuse to pay the licence royalties or claim repayment of earlier paid royalties.
+We accept Mr Speck QCs submission that these judgments suggest that the current approach of the German courts, in deciding whether to grant an injunction to a SEP owner for the breach of a national patent, is, first, to look to see whether the SEP owners offer of a licence is apparently FRAND.
+If it is not, they will not grant an injunction.
+Secondly, the courts look at the implementers behaviour to see if its response is FRAND before deciding whether to grant the injunction.
+Thirdly, as the quoted para 119 of Pioneer v Acer illustrates, the courts look to see if the parties behaviour conforms to industry practice, and if in the real world parties would voluntarily agree a global portfolio licence, but the implementer refuses to take such a licence, the way is open to the grant of an injunction.
+It is also relevant to observe that in Germany, where the courts which determine infringement of a patent are separate from those which determine its validity, it is possible to obtain an injunction against infringement from one court before the validity of a patent has been established in the other.
+Where there is an obvious challenge to validity, such as a challenge to novelty, the German court dealing with infringement may suspend an injunction pending determination of that challenge.
+But otherwise an injunction may be granted without the patent owner having established the validity of the relevant patent.
+In the UK, by contrast, it is necessary first to establish both validity and infringement of the national patent, as Birss J did in this case, before the courts will grant an injunction against infringement.
+Before leaving Germany, we record that we were referred to the recent case of Huawei Technologies Co Ltd v Unwired Planet International Ltd 4b 0 49/14 G, a judgment of the Higher Regional Court of Dsseldorf concerning the disclosure of information relevant to financial remedies.
+We are satisfied that the judgment has no bearing on the issue of jurisdiction which we are considering.
+China: In para 73 of the Court of Appeals judgment it considered the judgment of the Guangdong High Peoples Court in Huawei v Interdigital (para 46 above).
+The Court of Appeal observed that the trial courts holding that Interdigitals offers of a licence were not FRAND was not made on the basis that the offers were for a worldwide licence and that that court appeared to think that a worldwide licence of Interdigitals SEPs would be both reasonable and feasible.
+The High Peoples Court upheld the trial courts judgment.
+Before this court Mr Howard states correctly that the Chinese court settled a FRAND royalty between Huawei and Interdigital in relation to Interdigitals Chinese SEP portfolio but he does not suggest that the Chinese court ruled out a worldwide FRAND licence.
+Mr Howard also referred this court to the judgment of the Nanjing Intermediate Peoples Court of Jiangsu Province in Huawei Technologies Ltd v Conversant Wireless Licensing SarL (para 39 above) as an example of the Chinese courts fixing a FRAND licence rate for Chinese patents only.
+In that case, as we have said, the court criticised Conversant for having failed to test the Chinese patents in its portfolio in the Chinese courts and for adopting the device (as it saw it) of seeking a foreign court, ie the High Court in London, to fix a global rate of royalties.
+Having regard to Conversants lack of success in selecting for testing Chinese patents which were then held to be either invalid or not infringed (para 36 above) one can readily understand the importance of establishing the quality of Conversants Chinese patents.
+But the Chinese court was responding to Huaweis application for, among other things, the fixing of the Chinese rates and did not criticise the idea of a court in an appropriate case having jurisdiction to fix royalty rates in a worldwide FRAND licence.
+Japan: We were referred to the judgment of the Intellectual Property High Court of Japan in Samsung Electronics Co Ltd v Apple Japan Godo Kaisha (Case No 2013 (Ne) 10043) dated 16 May 2014, which is discussed in para 72 of the Court of Appeals judgment.
+As the Court of Appeal said, the Japanese court was not asked to find and did not find that a global portfolio licence cannot be FRAND.
+Samsung as a SEP owner under the ETSI regime had given an undertaking to enter into a FRAND licence which Apple had not accepted.
+The case, in so far as relevant to the issue we are considering, concerned the nature of the damages which Samsung could recover from the infringement by Apple, the implementer, of Samsungs Japanese patent and in particular whether those damages could exceed the FRAND royalty.
+The court in that case declined Samsungs application for an injunction and focussed on its claim for damages, but the judgment is not inconsistent with Birss Js approach.
+The European Commission: In Motorola (Case AT.39985), which was issued on 29 April 2014, the European Commission (EC) held that Motorola had infringed article 102 of the TFEU, which is concerned with the abuse of a dominant position, by seeking and enforcing an injunction against Apple in the German Federal Court for Apples infringement of one of its German SEPs.
+In the course of the proceedings Apple had offered to take a licence of relevant SEPs for Germany on terms to be settled by the German courts, if necessary.
+Motorola argued that this offer was not FRAND for several reasons, including that the offered licence was not worldwide.
+The EC rejected Motorolas argument, finding that Apples offer was FRAND and that Motorola did not need an injunction to protect its commercial interest.
+The Court of Appeal discussed this decision in paras 59 and 60 of its judgment, suggesting that this was the high water mark of Huaweis case and that it was based on the view that a licence limited to Germany was FRAND.
+But the Court of Appeal noted that the EC was not expressing a concluded view that in other circumstances a worldwide licence would not be FRAND.
+We agree.
+The Court of Appeal referred to the subsequent communication by the EC to the European Parliament, the Council and the European Social and Economic Committee dated 29 November 2017 (COM (2017) 712 final) (the Communication) setting out a European approach to SEPs.
+The Communication in so far as relevant for the question in hand endorsed portfolio licensing of products with a global circulation in the interests of efficiency and recognised that a country by country approach might not be efficient or conform to the established practice of the relevant industrial sector.
+It acknowledged that there was no one size fits all solution to identifying what is FRAND, as what can be considered fair and reasonable varies from sector to sector and over time.
+Mr Howard played down the Communication, pointing out correctly that it did not purport to be a statement of the law and that it cited only Birss Js judgment as a legal authority in support of global licences.
+But in our view the Communication represents the considered view of the EC regarding the proper working of the ETSI regime and is consistent with judicial developments in Germany and the United States which we have discussed above.
+Conclusions about foreign jurisprudence on jurisdiction: In summary, the US case law shows (i) a recognition that the court in determining a FRAND licence in such cases is being asked to enforce a contractual obligation which limits the exercise of the patent owners IP rights including its IP rights under foreign law; (ii) a willingness in principle to grant an injunction against the infringement of a national patent which is a SEP, if an implementer refuses a licence on FRAND terms; (iii) a willingness in principle to determine the FRAND terms of a worldwide licence; (iv) a practice of looking to examples of real life commercial negotiation of licences by parties engaged in the relevant industry when fixing the FRAND terms of a licence; and (v) a recognition that the determination of a FRAND licence by one national court does not prevent an implementer from challenging foreign patents on the grounds of invalidity or non infringement in other relevant national courts.
+Similarly, in Germany the developing case law shows (i) a recognition that a worldwide licence might be FRAND and an implementers counter offer of a national licence confined to Germany might not be FRAND; (ii) a practice of having regard to the usual practices of parties in the relevant industry when the court determines the FRAND terms of a licence; and (iii) a willingness to grant an injunction against infringement of a national patent if the court holds that a SEP owners offer of a licence is FRAND and the implementer refuses to enter into it.
+The courts in China have not rejected the proposition that a worldwide licence might be FRAND, nor have the courts ruled that they do not have jurisdiction to determine the FRAND terms of a worldwide licence with the consent of the parties, although it remains a matter of speculation whether they would or would not accept jurisdiction.
+We therefore reject the submission that Birss J was out of line with the approach of courts in most significant jurisdictions.
+We can then deal briefly with the various arguments which Huawei raises as to the propriety of the English courts grant of an injunction, which we have summarised in para 55 above.
+Those arguments do not go to the existence of a jurisdiction to grant an injunction where an implementer refuses a FRAND worldwide licence but to the consequences of a courts decision to grant such an injunction in the exercise of a discretion.
+As such they overlap with our discussion of the remedy of injunction (issue 5) in paras 159 169 below.
+The first argument is that in the context of a global standard it is disproportionate to exclude an implementer from the UK market unless it enters into a worldwide licence of untested patents solely because it has infringed a UK patent.
+But this argument fails to acknowledge that what the implementer is purchasing in entering into such a licence with a SEP owner, which has a sufficiently large international portfolio of patents, is not solely access to the UK market but certainty that it has the ability legally to manufacture and sell products which comply with the standard on a worldwide basis.
+The second argument is that it is anomalous that an implementer should be liable in damages only for the loss which a SEP owner incurs through the infringement of one or more of its UK patents if the implementer chooses to withdraw from the UK market rather than enter into a worldwide licence but that, if the implementer wishes to market its products in the UK, it must pay global royalties.
+It is premised on the misplaced equation of the fixing of a licence which requires the payment of royalties for past and future use of patented technology and the separate or alternative award by the court of damages for past infringement of a UK patent.
+In our view this argument fails for two reasons.
+First, the award of damages is not to be equated with the royalties that are paid under a contractual licence.
+If an implementer agrees to enter into a FRAND licence which a SEP owner offers, it is entering into a voluntary obligation.
+If the court awards damages it does so on proof of the loss which the SEP owner has suffered through the infringement of its patent or patents.
+It may be that the measure of damages which a court would award for past infringement of patents would equate to the royalties that would have been due under a FRAND licence.
+That does not alter the different nature of the exercises which the court performs in (i) awarding damages and (ii) determining the terms of a licence, which will usually contain many important provisions in addition to the fixing of royalties.
+Secondly and in any event, as mentioned above, what the implementer purchases in entering into a worldwide licence is the ability legally to manufacture and sell standard compliant products on a worldwide basis.
+Thirdly, Huawei argues that there is a fundamental difference between what parties may voluntarily do in reaching agreements with other participants in an industry to compromise their rights for commercial and other pragmatic reasons and what a court may properly compel them to do.
+In our view this argument is without substance precisely because, as the US courts in particular have recognised, SSOs such as ETSI have crafted a contractual arrangement which enables the courts to determine a FRAND licence which, if accepted by the implementer, may prevent a SEP owner from obtaining a prohibitory injunction to exclude the implementers products from a particular jurisdiction.
+The implementer has the choice whether to exclude the risk of injunction by accepting a FRAND licence.
+Fourthly, Huawei points to the increasing involvement of Patent Assertion Entities (PAEs) in the SEP licensing market and in litigation.
+Such entities accumulate portfolios of patents from patent owners which were or are globally active mobile phone companies, as Unwired has done from Ericsson and Conversant from Nokia, and derive income from licensing them to implementers, if necessary after pursuing expensive legal actions.
+Huawei expresses concern that PAEs may abuse the power which ownership of SEPs gives.
+The EC in its Communication which we mentioned in para 83 above noted the increased involvement of PAEs in European litigation and the potential for harmful effects from the behaviour of certain PAEs.
+In the US Supreme Court, Justice Kennedy in a concurring judgment in eBay Inc v Mercexchange 547 US 388 (2006) has also expressed concerns about the risk that PAEs which do not produce and sell goods may use injunctions as a bargaining tool to charge exorbitant royalties.
+We are alive to that risk.
+In our view, however, the rights which PAEs acquire through the transfer by assignment of patents are the same as those which the assignor patent owners had held: assignatus utitur iure auctoris that which is assigned possesses for its use the rights of the assignor or cedent.
+In some cases, the assignment of rights to a PAE and the reservation of a share of the royalties which it negotiates or obtains through litigation may be the most straightforward means by which a SEP owner can obtain value from its intellectual property which is the fruit of its research and innovation, and if the rights are treated as qualified in the hands of the PAE the consequence will be that the SEP owner will not receive the reward which its investment merits.
+In the exercise of those rights in pursuit of a FRAND licence the assignee PAE, like the assignor patent owner, must act fairly and reasonably as FRAND is an obligation which governs the process of negotiation as well as the outcome of the determination of a FRAND licence.
+There is no legal basis under the general law for treating PAE owners of SEPs differently from other SEP owners unless they have different interests which merit different remedies.
+In so far as the risk of the grant of injunctions may be necessary to achieve the balance which the IPR Policy promotes, it is not evident that a PAE should necessarily be treated differently from a SEP owner which manufactures and sells telecommunications equipment.
+SEP owners have an interest in making sure that the ETSI regime is enforced.
+In any event the point does not go to the question of jurisdiction.
+Finally, Huawei submits that if a national court were prepared to determine that a worldwide licence is FRAND and that entering into such a licence is a precondition of the refusal of an injunction to prohibit infringement of a national patent, there is a risk of forum shopping, conflicting judgments and applications for anti suit injunctions.
+In so far as that is so, it is the result of the policies of the SSOs which various industries have established, which limit the national rights of a SEP owner if an implementer agrees to take a FRAND licence.
+Those policies, which either expressly or by implication provide for the possibility of FRAND worldwide licences when a SEP owner has a sufficiently large and geographically diverse portfolio and the implementer is active globally, do not provide for any international tribunal or forum to determine the terms of such licences.
+Absent such a tribunal it falls to national courts, before which the infringement of a national patent is asserted, to determine the terms of a FRAND licence.
+The participants in the relevant industry, which have pragmatically resolved many disputes over SEPs by the practice of agreeing worldwide or international licences, can devise methods by which the terms of a FRAND licence may be settled, either by amending the terms of the policies of the relevant SSOs to provide for an international tribunal or by identifying respected national IP courts or tribunals to which they agree to refer such a determination.
+In the final analysis, the implementers and the SEP owners in these appeals are inviting a national court under the current IPR Policy to rule upon and enforce the contracts into which the SEP owners have entered.
+If it is determined that the SEP owners have not breached the FRAND obligation in the irrevocable undertakings they have given, they seek to enforce by obtaining the grant of injunctive relief in the usual way the patents which have been found to be valid and to be infringed.
+The English courts have jurisdiction to rule upon whether the UK patents in suit are valid and have been infringed, and also have jurisdiction to rule on the contractual defence relied upon by the implementers based upon the true meaning and effect of the irrevocable undertaking the SEP owners have given pursuant to the ETSI regime.
+In agreement with Birss J (para 793), we observe that Huawei is before this court without a licence in respect of infringed UK patents when it had the means of obtaining such a licence.
+Subject to the plea of forum non conveniens, to which we now turn, this court has no basis for declining jurisdiction.
+Similarly, ZTEs submission, that if a global licence is FRAND, a FRAND process would identify the courts of China as the appropriate courts to fix the terms of such a licence, is an argument which we address under issue 2 below.
+Issue 2: Forum non conveniens
+This issue arises only in the Conversant appeals, where it has two limbs of unequal size.
+The first and larger limb, which may be said to be a forum conveniens issue strictly so called, is whether the High Court should have set aside service out of the jurisdiction on the two Chinese defendants (Huawei (China) and ZTE (China)) and permanently stayed the proceedings as against the two English defendants (Huawei (UK) and ZTE (UK)) on the ground that China rather than England was the appropriate forum.
+The second much smaller limb, which may better be labelled case management, is whether the claim for injunctive relief in the English proceedings should be temporarily stayed or otherwise case managed so as to enable relevant matters in dispute first to be litigated to a final conclusion in pending proceedings in the Chinese courts.
+We will address them in turn.
+Both these issues necessarily proceed upon the assumption, with which we agree, that, contrary to the appellants main case, the English court has jurisdiction to settle a global licence on FRAND terms for a multinational SEP portfolio.
+This is mainly because issues as to a global licence need to be determined so as to enable the court to adjudicate upon a contractual defence to the enforcement of an English patent by injunction.
+Nonetheless the main plank in the appellants case on forum conveniens is that, in substance, the real dispute between the parties is as to the terms of a FRAND licence, with the claim to enforce English patents by injunction being no more than a convenient peg upon which to hang the dispute so as to attract English jurisdiction, which it is said (by Huawei and ZTE) that Conversant would prefer to the less generous outcome likely to be obtained in the Chinese courts.
+Leaving aside questions as to the burden of proof, at common law the forum conveniens doctrine requires the English court to decide whether its jurisdiction or that of the suggested foreign court is the more suitable as a forum for the determination of the dispute between the parties.
+The traditional way in which this question has been framed speaks of the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice (per Lord Collins JSC in Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd [2011] UKPC 7; [2012] 1 WLR 1804, para 88, adopting the language of Lord Goff in Spiliada Maritime Corpn v Cansulex Ltd (The Spiliada) [1987] AC 460).
+The requirement in complex litigation to define, at the outset, what is the case to be tried runs the risk that the court will by choosing a particular definition prejudge the outcome of the forum conveniens analysis, as the Court of Appeal decided had occurred at first instance in In re Harrods (Buenos Aires) Ltd [1992] Ch 72.
+Harman J had characterised the case as a petition under the English Companies Act for relief for unfair prejudice in the conduct of the affairs of an English registered company, which made it blindingly obvious to him that England was the appropriate forum.
+But the company carried on business entirely in Argentina.
+The matters complained of all occurred there, where there was a parallel jurisdiction to provide relief under Argentinian legislation.
+So the Court of Appeal preferred Argentina as the appropriate forum.
+Like the Court of Appeal in the present case, we therefore prefer for present purposes to identify the dispute between the parties as the matter to be tried, lest reference to the case should introduce undue formalism into the analysis of a question of substance.
+The question how the dispute should be defined has been the main bone of contention between the parties, both in this court and in the courts below.
+Is it, as the appellants say, in substance a dispute about the terms of a global FRAND licence, or is it, as the respondent maintains, both in form and in substance about the vindication of the rights inherent in English patents, and therefore about their validity and infringement, with FRAND issues arising only as an aspect of an alleged contractual defence? Thus far the respondent has had the better of that argument, both before the judge and the Court of Appeal.
+At the heart of the analysis which has thus far prevailed is the recognition that the owner of a portfolio of patents granted by different countries is in principle entitled to decide which patents (and therefore in which country or countries) to seek to enforce, and cannot be compelled to enforce patents in the portfolio granted by other countries merely because a common FRAND defence to the enforcement of any of them raises issues which might more conveniently be determined in another jurisdiction than that which exclusively regulated the enforcement of the chosen patents.
+Were it necessary to choose between the rival characterisations of the substance of the dispute, we would have agreed with the choice made by the courts below.
+But we think, like the judge, that there is a compelling reason why the appellants must fail on this issue which would apply even if the appellants characterisation had been correct, so that the dispute was in substance about the terms of a global FRAND licence.
+A challenge to jurisdiction on forum conveniens grounds requires the challenger to identify some other forum which does have jurisdiction to determine the dispute.
+Even in a case where permission is required to serve out of the jurisdiction, so that the burden then shifts to the claimant to show that England is the more appropriate forum, that still requires there to be another candidate with the requisite jurisdiction.
+In the present case, China is the only candidate which the appellants have put forward.
+There may be others, but the court is not required to carry out its own independent search, and such other jurisdictions as might exist in theory may not be remotely convenient.
+After hearing extensive expert evidence, the judge found that the Chinese courts do not, at present, have jurisdiction to determine the terms of a global FRAND licence, at least in the absence of agreement by all parties that they should do so.
+Even in the event of such an agreement, he described the prospect that the Chinese courts would embark on the exercise as no more than speculative.
+Notwithstanding the admission of fresh evidence on this issue, the Court of Appeal reached the same conclusion.
+In sharp contrast, we have decided, for the reasons set out above, that the English court does have such a jurisdiction, even in the absence of consent by the parties, and it has of course exercised that jurisdiction in the Unwired case.
+Directions have been given in the Conversant case (subject to the outcome of this appeal) for it to be done again.
+Furthermore, against the speculative possibility that the Chinese courts might accept jurisdiction to settle a global FRAND licence by consent, there is the judges finding that Conversant had acted reasonably in refusing to give its consent, for reasons connected with the conditions which the appellants sought to impose, a conclusion which was not met with any persuasive challenge in this court.
+We therefore agree with the judge that the forum conveniens challenge falls at this first hurdle, notwithstanding the fresh evidence introduced in the Court of Appeal.
+Had it not done, a number of further issues would have arisen, in particular arising from the application of the Owusu principle (Owusu v Jackson and Others ((Case C 281/02) EU:C:2005:120; [2005] QB 801 (ECJ)) to the English defendants, set against the possibility that there might be a reflective application of article 24 of the Brussels I Regulation (Regulation (EU) 1215/2012 of 12 December 2012), and the recent decision of this court in Lungowe v Vedanta Resources plc [2019] UKSC 20; [2019] 2 WLR 1051.
+But we consider that those issues, which may well arise in future if and when other countries decide to exercise jurisdiction to settle global licences, would best be determined in a context when they might be decisive.
+We therefore turn to case management.
+The English courts have wide case management powers, and they include the power to impose a temporary stay on proceedings where to do so would serve the Overriding Objective: see CPR 1.2(a) and 3.1(2)(f).
+For example a temporary stay is frequently imposed (and even more frequently ordered by consent) in order to give the parties breathing space to attempt to settle the proceedings or narrow the issues by mediation or some other form of alternative dispute resolution.
+A temporary stay may be ordered where there are parallel proceedings in another jurisdiction, raising similar or related issues between the same or related parties, where the earlier resolution of those issues in the foreign proceedings would better serve the interests of justice than by allowing the English proceedings to continue without a temporary stay: see Reichhold Norway ASA v Goldman Sachs International [2000] 1 WLR 173.
+But this would be justified only in rare or compelling circumstances: see per Lord Bingham MR at pp 185 186, and Klckner Holdings GmbH v Klckner Beteiligungs GmbH [2005] EWHC 1453 (Comm).
+No such application has thus far been made in the Conversant case.
+At first instance the defendants went all out to obtain the permanent termination of the proceedings, by having service on the Chinese defendants set aside, and by having the proceedings against the English defendants permanently stayed.
+The whole basis of their application was that the Chinese courts were the appropriate forum to decide the whole dispute, or that the dispute should be split into its Chinese and English parts, leaving only (in England) the question what royalty or compensation for infringement they should pay in relation to the English patents.
+At the hearing of case management issues consequential upon Henry Carr Js judgment, the appellants did suggest that the FRAND trial should be stayed to await the outcome of pending proceedings in China.
+The judge provided some accommodation by directing that the FRAND trial should not take place before November 2019, so that the outcome of the Chinese proceedings, to the extent relevant, could be factored into the determination of a FRAND global licence.
+A case management alternative was put forward by Huawei in the Court of Appeal, but still on the basis that the global FRAND issues could and therefore should first be determined in China, before any determination in England of the claim for infringement of UK patents.
+It was rejected by the Court of Appeal first because the pending proceedings in China sought only to determine the terms of a FRAND licence for Conversants Chinese patents, not a global licence which would extend to the use of its English patents, and secondly because the age of Conversants portfolio militated against allowing further delay.
+In this court the case management solution was briefly resurrected during argument, although not as a distinct ground of appeal.
+Meanwhile the FRAND trial had by then been fixed to start in April 2020 and was no doubt the subject of intensive preparation.
+It has since then been adjourned due to the Coronavirus pandemic.
+We think it sufficient to confine ourselves to the issue whether the Court of Appeal was wrong to refuse any case management solution, for the reasons it gave, as summarised above.
+In our view the Court of Appeals reasons cannot be faulted.
+We have already concluded that the prospect that the Chinese courts might determine a global FRAND licence, even if the parties consented, is no more than speculative.
+The current proceedings in China relate only to Conversants Chinese patents, and Conversant has been held to have acted reasonably in refusing (even if it were possible) to confer a wider global jurisdiction on the Chinese courts.
+Further the adverse commercial effect of further delay in the enforcement of Conversants elderly patents is a factor which, in a case management context, the Court of Appeal was plainly entitled to take into account, and to attribute such weight as it thought fit.
+Issue 3: FRAND and non discrimination
+Huawei submits that a further error in the judgment of Birss J at first instance and in the judgment of the Court of Appeal in the Unwired case relates to the non discrimination limb of Unwireds FRAND undertaking.
+This was dealt with under Ground 2 in the judgment of the Court of Appeal (paras 130 210).
+Huawei relies on the Samsung licence entered into by Unwired on 28 July 2016 (the Samsung licence) as a relevant comparator for the purpose of working out the FRAND licence terms which should have been offered to Huawei by Unwired.
+The worldwide royalty rate under the Samsung licence was much lower, and hence much more favourable to the licensee, than the worldwide royalty rate which the judge found was required to be on offer to Huawei pursuant to Unwireds FRAND undertaking.
+Huawei submits that the judge should have held that Unwireds FRAND undertaking meant that Unwired should have offered Huawei a worldwide royalty rate which was as favourable as that agreed with Samsung.
+Huaweis case is that the non discrimination limb of the undertaking must be given its ordinary and unadorned meaning, which is that like situations must be treated alike and different situations differently.
+The non discrimination limb of the undertaking means that the SEP owner must grant the same or similar terms to all similarly situated licensees, unless it can be shown that there are objective grounds for treating them differently.
+Huawei says that this corresponds with the usual meaning given to obligations not to discriminate in other contexts.
+Birss J used the term hard edged in relation to the non discrimination obligation to describe the interpretation contended for by Huawei.
+The practical effect of Huaweis submission is that the non discrimination obligation means that a SEP owner is required to grant licence terms equivalent to the most favourable licence terms to all similarly situated licensees.
+Before the judge, Unwired deployed three lines of defence to this part of Huaweis case.
+First, it argued that the Samsung licence was not an equivalent or comparable transaction such as could engage the non discrimination obligation.
+Secondly, if that was wrong, it said that the non discrimination element in the FRAND undertaking did not involve a distinct hard edged discrimination obligation as submitted by Huawei.
+Instead, Unwired said that the non discrimination element is to be read as part of a single, unitary obligation to license on terms which are fair, reasonable and non discriminatory.
+To comply with that obligation, a licensor has to offer a royalty rate set by reference to the true value of the SEPs being licensed; that is, a standard fair market royalty rate available to market participants for use of the SEPs.
+A rate set in this way, which is available to all licensees without discriminating between them by reference to their individual characteristics, does not cease to be FRAND because the SEP owner has previously granted a licence on more favourable terms.
+The judge referred to the obligation interpreted in this way as a general non discrimination obligation.
+Thirdly, if the non discrimination obligation was engaged and if the general non discrimination interpretation were rejected, Unwired argued that the mere existence of differential royalty rates is not sufficient to amount to a breach of the obligation.
+There is an additional element: Huawei had to demonstrate that the difference is such as to cause a distortion of competition, which it had failed to do.
+For this submission, Unwired said that the non discrimination part of the FRAND undertaking was to be construed by analogy with the obligation of non discrimination as found in EU competition law in article 102(c) of the TFEU.
+Birss J rejected the first argument.
+On the facts, he found that there were specific economic circumstances applicable in relation to the negotiation of the Samsung licence which meant that the royalty rates in it were not a good comparator or basis for assessment of the uniform market royalty rate required under the FRAND obligation.
+The Samsung licence was granted by Unwired after it had been acquired by PanOptis.
+At that time, Unwired was in a distressed financial position and Samsung was able to take advantage of this in driving down the royalty rates under the licence.
+Also, PanOptis had a wider commercial interest in building trust with Samsung to develop a strategic relationship with it so as to encourage it to enter into other transactions, and again this gave special bargaining power to Samsung in the circumstances in which the Samsung licence royalty rates were negotiated.
+This aspect of the judges findings was not challenged in the Court of Appeal (paras 137 146) and is not in issue on this appeal.
+However, Birss J held that these features of the circumstances in which the Samsung licence was negotiated did not support Unwireds argument that the non discrimination obligation owed to Huawei was not engaged in relation to the Samsung licence.
+He held that Huawei and Samsung were similarly situated and that the licences available to each of them were equivalent or comparable for the purposes of engagement of the non discrimination element in the FRAND undertaking.
+Huawei and Samsung were in a similar position as market participants wishing to be able to make use of Unwireds SEPs and the licences were directed to allowing similar forms of use of the relevant SEPs for the provision of products and services with operability around the world.
+That ruling was upheld by the Court of Appeal (paras 160 176).
+There is no appeal in relation to this aspect of the judgments below.
+Birss J accepted Unwireds second argument.
+He held that the non discrimination element in the FRAND undertaking was general in nature rather than hard edged.
+The undertaking did not require that royalty rates in the licence on offer to Huawei should be fixed by reference to the royalty rates in the Samsung licence.
+On this basis, the judge found that the worldwide licence on offer to Huawei was on non discriminatory terms.
+The Court of Appeal agreed (paras 177 207).
+This part of the judgments below is under challenge on the appeal to this court.
+Birss J also ruled in favour of Unwired on the basis of its third argument, should it transpire that he was wrong to hold that the non discrimination obligation was general rather than hard edged.
+Since the Court of Appeal upheld his judgment on Unwireds second argument, it found it unnecessary to deal with this alternative part of his reasoning (paras 208 209).
+Huawei submits in this court that Birss J erred in this part of his reasoning as well.
+This court upholds the judgment of Birss J and the Court of Appeal on the second of Unwireds arguments.
+They were right to find that the non discrimination element in the FRAND undertaking is general and not hard edged and that there had been no breach of it.
+Accordingly, the third argument does not arise.
+The choice between regarding the non discrimination obligation as general or hard edged is a matter of interpretation of the FRAND undertaking in clause 6.1 of the IPR Policy.
+The obligation set out in that provision is that licences should be available on fair, reasonable and non discriminatory terms and conditions.
+In our view, the undertaking imports a single unitary obligation.
+Licence terms should be made available which are fair, reasonable and non discriminatory, reading that phrase as a composite whole.
+There are not two distinct obligations, that the licence terms should be fair and reasonable and also, separately, that they should be non discriminatory.
+Still less are there three distinct obligations, that the licence terms should be fair and, separately, reasonable and, separately, non discriminatory.
+The text of clause 6.1 lends itself naturally to being read in this unitary way.
+The non discriminatory part of the relevant phrase gives colour to the whole and provides significant guidance as to its meaning.
+It provides focus and narrows down the scope for argument about what might count as fair or reasonable for these purposes in a given context.
+It indicates that the terms and conditions on offer should be such as are generally available as a fair market price for any market participant, to reflect the true value of the SEPs to which the licence relates and without adjustment depending on the individual characteristics of a particular market participant.
+Put another way, there is to be a single royalty price list available to all.
+This interpretation of the FRAND obligation promotes the purposes of the ETSI regime in general and the IPR Policy in particular, which we have discussed in paras 4 14 above.
+A powerful indication that the non discrimination obligation is general rather than hard edged is that ETSI had previously considered and rejected the imposition of a most favourable licence clause in the undertaking.
+This was done in documents which were published and accessible to all market participants.
+To interpret the FRAND undertaking as incorporating the hard edged non discrimination obligation for which Huawei contends would have the effect of re introducing a most favourable licence term by the back door.
+The fact that ETSI made a public choice not to incorporate a most favourable licence term into the FRAND undertaking which it eventually decided to introduce means that any reasonable person participating in the relevant market, whether as a SEP owner or as an implementer seeking to enforce the FRAND undertaking, would understand that the FRAND undertaking as eventually promulgated by ETSI did not incorporate a hard edged non discrimination obligation.
+The background is as follows.
+In 1993, ETSI published its original proposed licensing regime, Appendix A of which set out the draft of the then proposed ETSI IPR Undertaking.
+The proposed undertaking to be given by a SEP owner was to grant a licence which should be non exclusive, on fair, reasonable and non discriminatory terms and conditions (the third indented subparagraph of clause 3.1 in Appendix A) and which, under the fourth indented subparagraph in clause 3.1, should: include a clause requiring the licensor to promptly notify a licensee of any licence granted by it to a third party for the same IPRs under comparable circumstances giving rise to terms and conditions that are clearly more favourable, in their entirety, than those granted to the licensee and allowing the licensee to require replacement of the terms and conditions of its licence, in their entirety, either with those of the third party licence, or with such other terms and conditions as the parties may agree.
+The 1994 and subsequent versions of the IPR Policy did not include this term.
+The inclusion of such a most favourable licence term in the 1993 draft IPR Policy as an obligation distinct from the FRAND obligation in the previous subparagraph shows that the FRAND obligation (which was expressed in the same terms as in the later versions of the IPR Policy) was not intended to include a most favourable licence term itself.
+Further, the deletion of the relevant most favourable licence term from the undertaking in 1994 and in the later versions of the IPR Policy shows that a deliberate choice was made not to subject a SEP owner to an obligation of this kind.
+In TCL Communication Technology Holdings Ltd v Telefonaktiebolaget LM Ericsson Case No 8:14 cv 00341 JVS DFM (CD Cal, Nov 8, 2017), the US District Court for the Central District of California noted the deletion and regarded it as providing guidance regarding the interpretation of the FRAND obligation (pp 13 14 and 91).
+The Court of Appeal, in the judgment below, took the same view: para 199.
+We agree.
+Ms Ford QC for Unwired made further submissions to the Court of Appeal in support of Unwireds proposed general non discrimination interpretation which were repeated to us (see the Court of Appeal judgment, para 192).
+They have considerable force.
+First, Unwired submits that to interpret the non discrimination obligation in the general sense for which it contends gives full effect to the non discrimination limb of the FRAND undertaking.
+Non discrimination between licensees is achieved, because the FRAND rate is objectively determined based on the value of the portfolio and it does not take into account the characteristics of individual licensees.
+It satisfies the obligation to treat like cases alike, because the same rate is made available to all licensees who are similarly situated in the sense that they seek the same kind of licence.
+We agree.
+This reflects our reasoning above.
+Secondly, Unwired submits that the non discrimination limb of the FRAND undertaking should not be read in isolation so as to trump all other considerations; that is to say, as a separate free standing obligation.
+Birss J and the Court of Appeal correctly read it as working together with the fair and reasonable limb of FRAND as part of a unitary concept.
+The role of the non discrimination limb is to ensure that the fair and reasonable royalty is one which does not depend on any idiosyncratic characteristics of the licensee.
+Huawei's approach, by contrast, would mean that the existence of a prior licence which the judge had expressly and legitimately held did not represent useful evidence of the value of the portfolio compelled Unwired to license its SEPs at the same rate, and therefore receive remuneration which was less than a fair and reasonable return for its portfolio.
+This would be to give the non discrimination limb an unnecessarily extreme effect.
+Again, we agree.
+The conclusion for which Huawei contends cannot be justified with reference to the intended purposes of the ETSI licensing regime and would conflict with those purposes.
+Thirdly, it cannot be said that there is any general presumption that differential pricing for licensees is problematic in terms of the public or private interests at stake.
+The position has been summarised in this way: Most important of the lessons that the economics literature has clearly established is that price discrimination is not always or necessarily harmful.
+On the contrary, in some cases, it can increase efficiency, raise incentives to innovate by easing the recoupment of necessary upfront investments, broaden the markets served, and improve consumer welfare.
+This is a welcome finding, because price discrimination is the norm within IP licensing.
+That is, a typical comparison of contracts for two or more firms with licenses to the same IP will generally reveal different royalty rates, terms, and conditions.
+As long as the patent holder negotiating these differential rates and terms has no market power, there is no need for any concern, because different prices are a natural consequence of the IP licensing process (Anne Layne Farrar, Nondiscriminatory Pricing: Is Standard Setting Different? (2010) Journal of Competition Law and Economics 1, at p 3)
+Since price discrimination is the norm as a matter of licensing practice and may promote objectives which the ETSI regime is intended to promote (such as innovation and consumer welfare), it would have required far clearer language in the ETSI FRAND undertaking to indicate an intention to impose the more strict, hard edged non discrimination obligation for which Huawei contends.
+Further, in view of the prevalence of competition laws in the major economies around the world, it is to be expected that any anti competitive effects from differential pricing would be most appropriately addressed by those laws.
+It is unnecessary and inappropriate (and could well be counterproductive) to adopt the hard edged non discrimination interpretation of the FRAND undertaking urged by Huawei on the basis that this might promote competition and hence innovation and consumer welfare.
+Any reasonable person who seeks to engage with the ETSI regime, whether as a SEP owner or as an implementer who is a potential licensee, would understand this.
+Those engaging with the ETSI regime are highly sophisticated and well informed about economics, practice in the market and competition laws across the world.
+Fourthly, the approach of Birss J and the Court of Appeal reflects commercial reality and sense, in that there may be circumstances in which the owner of a SEP portfolio would choose to license its portfolio at a rate which does not actually reflect its true, FRAND royalty rate value.
+For example, the concept of so called first mover advantage in some market circumstances is well recognised.
+It may be economically rational and commercially important for the owner of a SEP portfolio to offer a lower rate to the first implementer to take a licence, because it provides the owner with initial income on its portfolio and may serve to validate the portfolio in the eyes of the market and hence encourage others to seek licences as well.
+Huaweis proposed interpretation of the FRAND undertaking would eliminate this as a viable approach.
+But since such an approach is well recognised and may have great commercial importance for a SEP owner, it would have required far clearer language to be used in the ETSI FRAND undertaking if the intention had been to eliminate it.
+Similar points can be made in relation to the elimination of another important set of commercial options for the owner of a SEP portfolio.
+If in commercial difficulties, the owner might seek to engage in a fire sale licensing deal at low royalty rates for a particular licensee in order to secure its (the owners) commercial survival.
+On the judges findings, there was an element of this in Unwireds grant of the Samsung licence.
+But if the fire sale royalty rate were to be taken to dictate the FRAND royalty rate for the portfolio for the rest of the participants in the market, there would be no incentive for implementers to take advantage of such an opportunity (as they would gain nothing by comparison with their competitors) and portfolio owners would be unable to utilise such means of raising funds without, in effect, permanently devaluing the portfolio.
+There is nothing in the ETSI scheme or the language of the FRAND undertaking to indicate that it was intended that the undertaking should have these effects.
+For these reasons, we dismiss Huaweis non discrimination ground of appeal.
+Issue 4: Competition law and the CJEUs judgment in Huawei v ZTE
+The fourth issue arises only in the Unwired appeal.
+It requires consideration of the CJEUs decision in Huawei v ZTE.
+Huawei argues that the CJEU there laid down a series of mandatory conditions which must be complied with if a SEP owner is to obtain injunctive relief.
+If the SEP owner fails to comply, its claim for an injunction will be regarded as an abuse of its dominant position, contrary to article 102 TFEU.
+In the Court of Appeal, Huaweis argument was that the SEP owner had to have complied before even issuing proceedings for injunctive relief (see para 231 of the Court of Appeal judgment).
+It is not entirely clear whether Huawei continues to pursue its argument in quite such absolute terms.
+Although our attention is invited to other respects in which Unwired failed to comply with the CJEUs conditions, Huaweis central focus now is upon Unwired not having made a FRAND offer at any stage, its offers being too high to be FRAND.
+It is not enough, Huawei says, for a SEP owner to be willing to enter into a licence agreement on terms determined by the court; it has to make a FRAND licence offer itself.
+In Huaweis submission, Birss J therefore erred in granting Unwired an injunction when it had not complied with the CJEUs conditions.
+It should have been limited to damages.
+Unwired responds that Birss J and the Court of Appeal interpreted Huawei v ZTE correctly, and it presented no obstacle to the grant of an injunction.
+Unwired accepts the conclusion of the lower courts that the CJEU did lay down one mandatory condition, namely the notice/consultation requirement in para 60, which must be observed by the SEP owner, who will otherwise fall foul of article 102.
+But, in its submission, that is the sole mandatory condition that the CJEU laid down; the other steps set out by the court were intended only as a safe harbour.
+If they are followed, the SEP owner can commence proceedings for injunctive relief without that amounting to an abuse of its dominant position, but failure to follow them does not necessarily mean that article 102 is infringed, because it all depends on the circumstances of the particular case.
+Article 102 TFEU
+So far as material, article 102 provides: Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States.
+The decision in Huawei v ZTE
+Huawei v ZTE arose in connection with a dispute in Germany between Huawei, which held a telecommunications SEP and had given an undertaking to grant licences on FRAND terms, and ZTE which marketed products using the SEP without paying a royalty or exhaustively rendering an account in respect of the use.
+Discussions as to a licence did not bear fruit.
+Huawei brought an action for infringement, seeking an injunction prohibiting infringement, accounts, recall of products and damages.
+It was not disputed that Huawei was in a dominant position, for article 102 purposes, but the referring court requested assistance from the CJEU as to the circumstances in which a SEP owner would abuse its dominant position as a result of bringing an action for a prohibitory injunction.
+The referring court identified two different approaches that might be taken to this question, which would produce different results on the facts of the case.
+On the one hand, the Bundesgerichtshof had held, in 2009, in Orange Book (KZR 39/06) (referred to in paras 30 to 32 of the CJEU judgment) that the applicant will only breach article 102 if, in essence, the defendant has made an unconditional offer to conclude a licensing agreement, not limited exclusively to cases of infringement, and, where the defendant uses the teachings of the patent before the applicant accepts the offer, it complies with its obligations to account for use and to pay the sums resulting therefrom.
+On this approach, there would have been no abuse of Huaweis dominant position.
+On the other hand, the European Commission (in press releases No IP/12/1448 and MEMO/12/1021, referred to in para 34 of the CJEU judgment) appeared to take the view that it would be an abuse to bring an action for an injunction where the infringer is willing to negotiate a FRAND licence, even if terms cannot be agreed.
+As ZTE was willing to negotiate, this approach would have made Huaweis action for an injunction unlawful under article 102.
+The referring courts central question was therefore whether it was an abuse to seek an injunction even though the infringer has declared that it is willing to negotiate concerning a licence or only where the infringer has submitted to the proprietor of the [SEP] an acceptable, unconditional [FRAND] offerand the infringer fulfils its contractual obligations for acts of use already performed in anticipation of the licence to be granted (see para 39 of the CJEU judgment).
+The CJEU commenced its consideration of the referred questions with the following observation: 42.
+For the purpose of providing an answer to the referring court and in assessing the lawfulness of such an action for infringement brought by the proprietor of an SEP against an infringer with which no licensing agreement has been concluded, the Court must strike a balance between maintaining free competition in respect of which primary law and, in particular, article 102 TFEU prohibit abuses of a dominant position and the requirement to safeguard that proprietors intellectual property rights and its right to effective judicial protection, guaranteed by article 17(2) and article 47 of the Charter respectively.
+It went on to note, at paras 48 to 52, the special features that distinguish SEPs from other patents, namely that the use of the patent is indispensable in manufacturing products which comply with the standard to which it is linked, and that SEP status is obtained only in return for the SEP owners irrevocable undertaking to grant licences on FRAND terms.
+It observed that, in those circumstances, a refusal by the proprietor of the SEP to grant a licence on [FRAND] terms may, in principle, constitute an abuse within the meaning of article 102 (para 53), and the abusive nature of such a refusal may, in principle, be raised in defence to actions for a prohibitory injunction or for the recall of products (para 54).
+The court then went on to deal with the situation where the parties could not agree on what FRAND terms were, observing: 55.
+In such a situation, in order to prevent an action for a prohibitory injunction or for the recall of products from being regarded as abusive, the proprietor of an SEP must comply with conditions which seek to ensure a fair balance between the interests concerned.
+It is of particular note that in the following paragraph, before embarking on its consideration of what conditions might ensure a fair balance, the court emphasised the need to take account of the specific circumstances of the case, saying: 56.
+In this connection, due account must be taken of the specific legal and factual circumstances in the case (see, to that effect, judgment in Post Danmark A/S v Konkurrenceradet [(C 209/10)] EU:C:2012:172; [2012] 4 CMLR 23 at para 26 and the case law cited).
+The passage from Post Danmark A/S to which reference is made is as follows: 26.
+In order to determine whether a dominant undertaking has abused its dominant position by its pricing practices, it is necessary to consider all the circumstances and to examine whether those practices tend to remove or restrict the buyers freedom as regards choice of sources of supply, to bar competitors from access to the market, to apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage, or to strengthen the dominant position by distorting competition (see, to that effect, Deutsche Telekom v Commission, para 175 and case law cited).
+The irrevocable undertaking to grant licences on FRAND terms could not, the court said, negate the entitlement of the SEP owner to have recourse to legal proceedings to ensure effective enforcement of his exclusive intellectual property rights (paras 58 and 59), but: 59. it does, none the less, justify the imposition on that proprietor of an obligation to comply with specific requirements when bringing actions against alleged infringers for a prohibitory injunction or for the recall of products.
+Paras 60 and 61 appear (from para 62) to be inspired by the possibility that the infringer of a SEP may not be aware that it is using the teaching of a SEP that is both valid and essential to a standard, and deal, in the following terms, with the need to alert the infringer: 60.
+Accordingly, the proprietor of an SEP which considers that that SEP is the subject of an infringement cannot, without infringing article 102 TFEU, bring an action for a prohibitory injunction or for the recall of products against the alleged infringer without notice or prior consultation with the alleged infringer, even if the SEP has already been used by the alleged infringer. 61.
+Prior to such proceedings, it is thus for the proprietor of the SEP in question, first, to alert the alleged infringer of the infringement complained about by designating that SEP and specifying the way in which it has been infringed.
+In paras 63 to 69, the court went on to anticipate that, thereafter, there would be a number of further exchanges between the SEP owner and the alleged infringer.
+Para 63 deals with the position once the alleged infringer has expressed its willingness to conclude a licensing agreement on FRAND terms.
+At this point: it is for the proprietor of the SEP to present to that alleged infringer a specific, written offer for a licence on FRAND terms, in accordance with the undertaking given to the standardisation body, specifying, in particular, the amount of the royalty and the way in which that royalty is to be calculated.
+Then, it is for the alleged infringer diligently to respond to that offer, in accordance with recognised commercial practices in the field and in good faith, with no delaying tactics, and it may rely on the abusive nature of an action for a prohibitory injunction only if it has submitted promptly and in writing, a specific counter offer that corresponds to FRAND terms (paras 65 and 66).
+And finally, if the counter offer is rejected, and the alleged infringer is using the teachings of the SEP already, from the point at which the counter offer is rejected, it is for that alleged infringer to provide appropriate security, in accordance with recognised commercial practices in the field, for example by providing a bank guarantee or by placing the amounts necessary on deposit (para 67).
+In paras 68 and 69, the court clarified that: i) in default of agreement on terms, the parties may, by common agreement, request that the amount of the royalty be determined by an independent third party without delay (para 68); and ii) the alleged infringer cannot be criticised for challenging, in parallel to the negotiations relating to the grant of licences, the validity and/or the essential nature of the patents, and/or their actual use, or for reserving the right to do so in the future (para 69).
+The court then went on, in paras 70 and 71 to address itself to the referring court, and to answer the questions it had referred: 70.
+It is for the referring court to determine whether the above mentioned criteria are satisfied in the present case, in so far as they are relevant, in the circumstances, for the purpose of resolving the dispute in the main proceedings. 71.
+It follows from all the foregoing considerations that the answer to [the questions referred] is that article 102 TFEU must be interpreted as meaning that the proprietor of an SEP, which has given an irrevocable undertaking to a standardisation body to grant a licence to third parties on FRAND terms, does not abuse its dominant position, within the meaning of article 102 TFEU, by bringing an action for infringement seeking an injunction prohibiting the infringement of its patent or seeking the recall of products for the manufacture of which that patent has been used, as long as: prior to bringing that action, the proprietor has, first, alerted the alleged infringer of the infringement complained about by designating that patent and specifying the way in which it has been infringed, and, secondly, after the alleged infringer has expressed its willingness to conclude a licensing agreement on FRAND terms, presented to that infringer a specific, written offer for a licence on such terms, specifying, in particular, the royalty and the way in which it is to be calculated, and where the alleged infringer continues to use the patent in question, the alleged infringer has not diligently responded to that offer, in accordance with recognised commercial practices in the field and in good faith, this being a matter which must be established on the basis of objective factors and which implies, in particular, that there are no delaying tactics.
+The facts of the present case
+Turning to the facts of the present case, between 2009 and 2012, Huawei had a licence from Ericsson which included the SEPs which were assigned to Unwired in 2013.
+In 2013, there was brief discussion between Unwired and Huawei about the possibility of Huawei buying some of the SEPs, but Huawei did not do so.
+In September 2013, Unwired wrote to Huawei proposing discussion with a view to concluding a licence, but received no reply.
+Unwired then wrote, in November 2013, to Huaweis IP department which replied very promptly, and there was communication between the companies.
+Before proceedings were begun against Huawei in March 2014, on Birss Js findings (see particularly para 750 of his judgment), the position was as follows: Huawei had sufficient notice that Unwired Planet held particular SEPs and they knew or ought to have known that if the declared SEPs held by Unwired Planet were indeed valid and essential, then a licence was required.
+They did not yet have claim charts.
+All the same, for Huawei, the only realistic and foreseeable ways in which the existing contact with Unwired Planet was going to conclude would be by Huawei persuading Unwired Planet that they had no good SEPs or proving it in court or by Huawei taking a licence.
+Huawei also knew that Unwired Planet wanted to license Huawei.
+In these circumstances the information Huawei had by March 2014 was quite sufficient for Huawei to understand that issuing proceedings including an injunction claim did not represent a refusal to license.
+Quite the reverse.
+In April 2014, Unwired made the first of a number of offers of licensing terms.
+Huawei responded, saying that no licence was needed, but also denying that the offered terms were FRAND.
+Birss J found (para 706) that Huawei never made an unqualified commitment to enter into a FRAND licence, its stance having always been that it was willing to enter into what it contended was a FRAND licence.
+Until shortly before the trial in front of Birss J, its contention was that only a patent by patent licence for any patent found valid and infringed would be FRAND, and from 11 October 2016, this was replaced by the contention that a FRAND licence meant a UK portfolio licence.
+Birss J contrasted this with Unwireds stance (para 709).
+Whereas Huawei had only been prepared to take a licence with a particular scope, Unwireds case in the High Court involved trying to insist on a worldwide licence, but its approach took account of the possibility that it might not be entitled to demand that.
+The position it took was that if the court decided that it was not entitled to insist on a global licence, it would accept that there be a UK portfolio licence at a rate and on terms set by the court (Birss J, para 23(i)).
+The decisions of Birss J and the Court of Appeal
+Birss J did not accept Huaweis argument that it had a defence to the injunction claim because the proceedings were commenced before FRAND terms were offered to it by Unwired.
+He interpreted the CJEU as saying that it would necessarily be abusive for the SEP owner to bring an action without some kind of prior notice to the alleged infringer, but otherwise he saw the CJEUs scheme as setting out a standard of behaviour against which both parties behaviour can be measured to decide in all the circumstances if an abuse has taken place, rather than imposing mandatory requirements which had to be complied with in all cases (para 744 (iv) and (v)).
+Measuring the parties behaviour against the standard, Birss J was satisfied that the commencement of the action, including the claim for an injunction, was not an abuse of Unwireds dominant position (para 755).
+It can be seen from the extract from para 750 which is quoted above that he considered that Huawei had sufficient notice prior to the commencement of proceedings, that it was clear that issuing the proceedings did not represent a refusal to license, and that Huawei knew that Unwired wanted to license it.
+The issue of the proceedings did not prevent the parties from negotiating (para 752).
+Unwired provided key terms of its offer to Huawei a few weeks after commencing proceedings (para 753), but Huawei never made an unqualified offer to accept whatever were FRAND terms (para 754).
+The Court of Appeal agreed with Birss Js interpretation of the CJEUs judgment, which it considered entirely correct, and it saw no reason to interfere with his conclusion that Unwired had not behaved abusively.
+Discussion
+In our view, Birss J and the Court of Appeal interpreted the CJEUs decision in Huawei v ZTE correctly.
+Bringing an action for a prohibitory injunction without notice or prior consultation with the alleged infringer will amount to an infringement of article 102, as para 60 of the CJEUs judgment sets out.
+In that paragraph, the language used is absolute: the SEP owner cannot bring the action without infringing the article.
+We agree with Birss J and the Court of Appeal, however, that the nature of the notice/consultation that is required must depend upon the circumstances of the case.
+That is built into the reference to notice or prior consultation, which conveys the message that there must be communication to alert the alleged infringer to the claim that there is an infringement, but does not prescribe precisely the form that the communication should take.
+This is to be expected, given that the CJEU had just introduced its discussion of the conditions which seek to ensure a fair balance between the various interests concerned in a SEP case with a very clear statement, at para 56 (set out above), that account had to be taken of the specific legal and factual circumstances in the case.
+In so saying, the court was reflecting its well established approach in determining whether a dominant undertaking has abused its dominant position, as it demonstrated by its reference back to the Post Danmark case, and the case law there cited.
+It also makes obvious sense that the court should have built in a degree of flexibility, given the wide variety of factual situations in which the issue might arise, and the fact that different legal systems will provide very different procedural contexts for the SEP owners injunction application.
+In Germany, for example, as we observed earlier, validity and infringement are tried separately, so that the alleged infringer faces the risk that the SEP owner could obtain a final injunction against it without validity first being determined, and in some member states, an injunction might be granted before a FRAND rate is determined.
+In contrast, in the United Kingdom, it is not the practice to grant a final injunction unless the court is satisfied that the patent is valid and infringed, and it has determined a FRAND rate.
+The courts statement in para 56 also colours the interpretation of the scheme it set out between paras 63 and 69 of its judgment.
+As the Court of Appeal observed, para 56 does not sit comfortably with the notion that the CJEU was laying down a set of prescriptive rules, intending that failure to comply precisely with any of them would necessarily, and in all circumstances, render the commencement of proceedings for an injunction abusive.
+It is important, it seems to us, to take account of where para 56 is placed in the judgment.
+Immediately preceding it, the court had identified the very real problem that occurs where, as in the case which had generated the reference to it, there is no agreement as to what terms would be FRAND, and then said (in para 55, quoted above) that in order to prevent an action being regarded as abusive, the SEP owner must comply with conditions which seek to ensure a fair balance between the interests concerned.
+This identifies what the conditions need to seek to ensure, but is no more prescriptive than that, and it is of considerable significance that para 56 immediately follows, requiring that [i]n this connection, which must surely be a reference back to the conditions which seek to ensure a fair balance, due account must be taken of the specific legal and factual circumstances of the case.
+It would be surprising if the steps then set out by the CJEU were expected by it to apply in all cases, no matter what their legal and factual circumstances.
+Unwired submits that the language used by the CJEU is language intended to signpost a safe harbour for the SEP owner.
+We agree that this does lend a degree of support to Unwireds argument.
+In particular, in contrast to the absolute language of para 60, in para 71, the court speaks of the SEP owner not abusing its dominant position as long as it follows the steps laid out.
+This does not tell us that if the SEP owner does not follow the steps, it will be abusing its dominant position.
+To answer that, due account has to be taken of the particular circumstances of the case, although, of course, it is likely to be valuable to compare what occurred with the pattern set out by the CJEU.
+By way of further reinforcement for its contention that the CJEU was providing guidance only, Unwired points to the unfairness that would arise, in a case (such as the present one) which began before the CJEU gave judgment in Huawei v ZTE, if the application for injunctive relief were to be condemned as abusive by virtue of a failure to comply with conditions which had not yet been spelled out when the proceedings were commenced, but which, once spelled out, operated ex tunc.
+The fact that any rigid and prescriptive rules laid down by the CJEU would necessarily operate in this way makes it unlikely, says Unwired, that the CJEU was actually seeking to lay down a mandatory protocol.
+Had the CJEUs judgment been in terms clearly intended to lay down universal, immutable, conditions, this point would not have been sufficient to displace that interpretation of it, but, in our view, given that the judgment is not in such terms, the point does perhaps provide a degree of further confirmation that all the circumstances of the case must be taken into account before concluding that article 102 has been infringed.
+It is worth noting how the European Commission has interpreted the CJEUs decision.
+In its communication of 29 November 2017, setting out the EU approach to Standard Essential Patents (see para 83 above), it encapsulated, at para 3, the conflicting considerations which operate in relation to injunctive relief in SEP cases, saying that: [s]uch relief aims to protect SEP holders against infringers unwilling to conclude a licence on FRAND terms.
+At the same time, safeguards are needed against the risk that good faith technology users threatened with an injunction accept licensing terms that are not FRAND, or in the worst case, are unable to market their products (hold ups).
+It then went on, at para 3.1 of the Communication, to set out its understanding of the CJEUs judgment: In its Huawei judgment, the CJEU established obligations applying to both sides of a SEP licensing agreement, when assessing whether the holder of a SEP can seek an injunction against a potential licensee without being in breach of Article 102 TFEU.
+SEP holders may not seek injunctions against users willing to enter into a licence on FRAND terms, and the CJEU established behavioural criteria to assess when a potential licensee can be considered willing to enter into such a licence.
+The following paragraphs consider further the various elements in the negotiation, but make clear that what precisely is required is, in the Commissions view, dependent on the facts of the individual case.
+This coincides with the interpretation that we would adopt of the CJEUs decision.
+As the Commission pointed out, the objective is to protect both the intellectual property rights of SEP owners and the interests of what it calls good faith technology users.
+The scheme set up by the CJEU, as we would interpret it, does this.
+It prevents an organisation which is unwittingly using a SEP without a licence from being ambushed by injunction proceedings without any prior notification of the problem, provides the SEP owner with a route map which, if followed precisely, will ensure it can seek an injunction without risking infringing article 102, and otherwise provides a number of points of reference to assist in assessing the all important question of whether each of the parties is willing to enter into a licence on FRAND terms.
+Interpreted in this way, it has sufficient flexibility built into it to cater for the inevitable variations that will occur from case to case, and from country to country.
+Given that we share Birss Js interpretation of the CJEUs judgment, we see no reason to interfere with his assessment that Unwired had not behaved abusively.
+He found that sufficient notice was given to Huawei before the injunction application was made.
+He properly evaluated the course of the negotiations between the parties in light of what the CJEU had said.
+There was no mandatory requirement that Unwired itself make an offer of terms which coincided with those that were ultimately determined by the court to be FRAND.
+Apart from the more general points that we have made earlier, in rejecting the argument that the CJEUs scheme was mandatory, such an absolute requirement to hit the target precisely with an offer could not sit easily alongside para 68 of the CJEUs judgment, which contemplates determination of the amount of the royalty by an independent third party.
+What mattered on the facts of this case was that Unwired had shown itself willing to license Huawei on whatever terms the court determined were FRAND, whereas Huawei, in contrast, had only been prepared to take a licence with a scope determined by it.
+Issue 5: The equitable jurisdiction to award a prohibitory injunction
+The fifth issue in the appeal raises a point which was not argued in the courts below.
+Huawei contends that even if it is infringing the claimants UK SEPs, and even if the claimants are willing to offer a licence on terms which the court has found to be FRAND, nevertheless the court should not grant the claimants an injunction to prevent the continuing infringement of their patents, since such a remedy is neither appropriate nor proportionate.
+Since the claimants only interest in the observance of the UK SEPs is in obtaining reasonable royalties, and that interest can be fully recognised by an award of damages in lieu of an injunction, it follows that such an award, based on the royalties which would reasonably be agreed for a licence of each of the UK patents infringed, is the appropriate and proportionate remedy.
+In support of that argument, Huawei refers to the discussion of awards of damages in lieu of an injunction under section 50 of the Senior Courts Act 1981 (formerly under Lord Cairnss Act) in One Step (Support) Ltd v Morris Garner [2018] UKSC 20; [2019] AC 649, where Lord Reed explained at paras 43 44 and 95(3) that such damages can be awarded in respect of an injury which has not yet occurred, and that they are a monetary substitute for what is lost by the withholding of injunctive relief.
+Reference is also made to Co operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1, where the House of Lords decided that damages were normally a more appropriate remedy than a mandatory injunction requiring the carrying on of a business, and Lawrence v Fen Tigers Ltd [2014] UKSC 13; [2014] AC 822, where damages were considered to be a more appropriate remedy, in the circumstances of that case, than an injunction to prevent the continuation of a nuisance.
+Huawei also refers to eBay Inc v Mercexchange LLC 547 US 388 (2006), where the United States Supreme Court vacated a decision by the Federal Circuit reversing the District Courts denial of permanent injunctive relief to a PAE.
+The Supreme Court held that neither court had exercised its discretion in accordance with traditional principles of equity, as established in the law of the United States.
+The Court of Appeals was held to have erred in applying a rule that courts would issue infringement absent exceptional permanent circumstances.
+The District Court was held to have erred in adopting a rule that injunctions against patent injunctive relief would not issue where the plaintiff was willing to licence its patents rather than bringing them to market itself.
+The Supreme Court took no position on whether permanent injunctive relief should or should not issue in that case.
+Huawei relies in particular on the concern expressed by Kennedy J, in a concurring opinion in which Stevens, Souter and Breyer JJ joined, that an injunction could be employed by a PAE as a bargaining tool to charge exorbitant fees.
+Kennedy J expressed the opinion that where the patented invention was only a small component of the product the defendant sought to produce, and the threat of an injunction was employed simply for undue leverage in negotiations, damages might well be sufficient to compensate for the infringement, and an injunction might not serve the public interest.
+As Lord Neuberger remarked in the case of Lawrence at para 120, the court's power to award damages in lieu of an injunction involves a classic exercise of discretion.
+In most cases of patent infringement, judges have exercised their discretion in favour of granting an injunction.
+As Roberts CJ observed in the eBay case, in a concurring judgment in which Scalia and Ginsburg JJ joined: From at least the early 19th century, courts have granted injunctive relief upon a finding of infringement in the vast majority of patent cases.
+This long tradition of equity practice [Weinberger v Romero Barcelo, 456 US 305, 320 (1982)] is not surprising, given the difficulty of protecting a right to exclude through monetary remedies that allow an infringer to use an invention against the patentees wishes. (Emphasis in original)
+In the present case, the courts below were not invited to consider the possibility of awarding damages in lieu of an injunction.
+We are not in any event persuaded that there is any basis on which this court could properly substitute an award of damages for the injunction granted by Birss J and upheld by the Court of Appeal.
+There are, in the first place, no grounds in this case for a concern of the kind expressed by Kennedy J in the eBay case.
+The threat of an injunction cannot be employed by the claimants as a means of charging exorbitant fees, or for undue leverage in negotiations, since they cannot enforce their rights unless they have offered to license their patents on terms which the court is satisfied are fair, reasonable and non discriminatory.
+This point was clearly in the mind of Birss J.
+He stated at para 562: If a worldwide licence is not FRAND then a putative licensee should not be coerced into accepting it by the threat of an injunction in one state.
+However, if a worldwide licence is FRAND then the situation changes.
+The logic of the FRAND undertaking applied in the context of patent rights is that the remedy of an injunction to restrain infringement, granted in respect of a patent found valid and infringed/essential, should present the licensee with a simple choice either to take a FRAND licence or stop dealing in the products.
+He returned to this point at the end of his judgment, when explaining at para 793 why an injunction was appropriate: The relevant patents have been found valid and infringed.
+Unwired Planet wish to enter into a worldwide licence.
+Huawei is willing to enter into a UK portfolio licence but refuses to enter into a worldwide licence.
+However a worldwide licence is FRAND and Unwired Planet are entitled to insist on it.
+In this case a UK only licence would not be FRAND.
+An injunction ought to be granted because Huawei stand before the court without a licence but have the means to become licensed open to them.
+Secondly, in a case of the present kind, an award of damages is unlikely to be an adequate substitute for what would be lost by the withholding of an injunction.
+The critical feature of a case of this kind is that the patent is a standard technology for products which are designed to operate on a global basis.
+That is why standard technology is essential, and why the patent holders whose patents are accepted as SEPs are required to give an undertaking that licences will be made available on FRAND terms.
+Once the patents have been accepted as SEPs, it may well be impractical for the patent holder to bring proceedings to enforce its rights against an infringing implementer in every country where the patents have been infringed.
+That is because, as Huaweis witness Mr Cheng accepted in evidence, the cost of bringing enforcement proceedings around the world, patent by patent, and country by country, would be impossibly high.
+In those circumstances, if the patent holder were confined to a monetary remedy, implementers who were infringing the patents would have an incentive to continue infringing until, patent by patent, and country by country, they were compelled to pay royalties.
+It would not make economic sense for them to enter voluntarily into FRAND licences.
+In practice, the enforcement of patent rights on that basis might well be impractical, as was accepted in the present case by Huaweis witness, and by the courts below.
+An injunction is likely to be a more effective remedy, since it does not merely add a small increment to the cost of products which infringe the UK patents, but prohibits infringement altogether.
+In the face of such an order, the infringer may have little option, if it wishes to remain in the market, but to accept the FRAND licence which ex hypothesi is available from the patent holder.
+However, for the reasons explained in paras 164 165, that does not mean that the court is enabling the patent holder to abuse its rights.
+This point was understood by the courts below.
+In the Court of Appeal, Lord Kitchin observed at paras 55 56: It may be wholly impractical for a SEP owner to seek to negotiate a licence of its patent rights country by country, just as it may be prohibitively expensive for it to seek to enforce those rights by litigating in each country in which they subsist.
+This latter point was accepted by Mr Cheng in the course of his evidence: he agreed that the costs of such litigation for [Unwired] would be impossibly high [I]t seems to us, at least as a matter of principle, that there may be circumstances in which it would not be fair and reasonable to expect a SEP owner to negotiate a licence or bring proceedings territory by territory and that in those circumstances only a global licence or at least a multi territorial licence would be FRAND.
+Lord Kitchin also noted at para 111 the implications of accepting Huaweis contention that country by country licensing was appropriate: The patentee must then bring proceedings country by country to secure the payment of the royalties to which it is entitled.
+But unlike a normal patent action, where an unsuccessful defendant faces the prospect of an injunction, the reluctant licensee would know that, on the assumption it could only be required to take licences country by country, there would be no prospect of any effective injunctive relief being granted against it provided it agreed to pay the royalties in respect of its activities in any particular country once those activities had been found to infringe.
+So it would have an incentive to hold out country by country until it was compelled to pay.
+That reasoning was criticised by Huawei, but far from being erroneous, it identifies the central reason why an injunction is necessary in order to do justice, and why damages in lieu would not be an adequate substitute.
+Conclusion
+Before concluding we would like to record our appreciation of the high quality of the judgments of the courts below and the help which we gained from the judgments of the Court of Appeal in each of these cases.
+It follows from what we have discussed above that the appeals must fail.
+We therefore dismiss the appeals.
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+The main issue in this appeal concerns the meaning and effect of a short, innocent sounding, phrase in article 221(4) of the (now superseded) Customs Code of the EU, contained in Council Regulation (EEC) No 2913/92 of 12 October 1992.
+The Customs Code regulated the collection of, and accounting for, customs duty throughout the EU (in 1992, the EEC).
+As is spelt out in the recitals to Regulation No 2913/92, the purposes of the Customs Code include securing a balance between the needs of the customs authorities in ensuring the correct application of customs legislation, on the one hand, and the rights of traders to be treated fairly, on the other, the establishment of uniform rules and procedure within the internal market, and the prevention of fraud or irregularity which would be liable adversely to affect the General Budget of the EU.
+In order to understand the main issue about the meaning and effect of article 221(4) as inserted by Council Regulation (EC) No 2700/2000 of 16 November 2000, it is necessary first to explain some of the basic concepts used within the Customs Code.
+At the heart of it lies the concept of customs debt which is defined in article 4(9), in relation to imports, as follows: Customs debt means the obligation on a person to pay the amount of the import duties (customs debt on importation) or export duties (customs debt on exportation) which apply to specific goods under the Community provisions in force.
+By article 4(12) debtor means any person liable for payment of a customs debt.
+In relation to imports, article 201(2) provides that a customs debt shall be
+incurred at the time of acceptance of the customs declaration in question, and article 201(3) identifies as the debtor the person making the declaration, and (if relevant) the person on whose behalf the declaration is made.
+Recovery of the amount of the customs debt is governed by Chapter 3 of the Customs Code.
+Section 1 deals with entry of the debt in the accounts and communication of the amount of duty to the debtor (in both cases by the customs authority of each member state).
+Articles 218 to 220 lay down strict time limits for the accounting by customs authorities for customs debts including, in article 220, correcting the accounts where a customs debt has originally been entered at a level lower than the amount legally owed.
+Article 221 provides for the communication to the debtor of the amount of duty as soon as it has been entered into the accounts.
+Section 2, which begins with article 222, provides time limits and procedures for payment of the duty by the debtor.
+Those time limits run from the date of communication to the debtor of the amount of duty owed.
+Thus, although the debtor incurs a customs debt at the time of importation (when making the customs declaration), liability to pay it occurs only upon receipt of communication of the amount by the relevant customs authority.
+Returning to article 221, it provided (at the material time) so far as is relevant as follows: Article 221 1.
+As soon as it has been entered in the accounts, the amount of duty shall be communicated to the debtor in accordance with appropriate procedures. 2. 3.
+Communication to the debtor shall not take place after the expiry of a period of three years from the date on which the customs debt was incurred.
+This period shall be suspended from the time an appeal within the meaning of article 243 is lodged, for the duration of the appeal proceedings. 4.
+Where the customs debt is the result of an act which, at the time it was committed, was liable to give rise to criminal court proceedings, the amount may, under the conditions set out in the provisions in force, be communicated to the debtor after the expiry of the three year period referred to in paragraph 3.
+I have italicised the phrase which falls to be interpreted and applied on this appeal.
+By article 4(23) provisions in force include both Community and national provisions.
+The issue may be summarised as follows.
+For the importer FMX Food Merchants Import Export Co Ltd, the respondent, which is the relevant customs debtor, it is said that article 221(4) confers an option on each member state to provide, in advance, an alternative fixed time limit in substitution for the three year time limit for communication of the amount of duty, where the qualifying condition (namely an act which was liable to give rise to criminal court proceedings) is satisfied.
+I will call it the criminal proceedings condition.
+If the member state does not do so (and the UK did not) then the three year time limit provided by article 221(3) remains in force, because any other outcome would offend against the EU principle of legal certainty.
+For HMRC, the appellant, it is submitted that the three year time limit in article 221(3) is automatically displaced wherever the criminal proceedings condition is satisfied.
+In such a case the requirement for legal certainty may be met either by a member states provision of a substitute fixed time limit, or by the combination of a number of specific provisions of the national law which, together, satisfy the requirement for legal certainty or, as a last resort, by the general requirement of EU law that the communication should take place within a reasonable time.
+The relevant provisions of national law, it is argued, include one or more of the UKs provisions about abuse of process, the equitable doctrine of laches, or the provisions of the Limitation Act 1980.
+Thus far, FMXs arguments have been broadly accepted by the First tier Tribunal (the FtT) and by the Court of Appeal, whereas the Upper Tribunal (the UT) found in favour of HMRC.
+The Facts
+The facts which gave rise to the present dispute are not (now at least) contentious and may be briefly stated.
+Between August 2003 and January 2004, FMX imported ten consignments of garlic, which were declared to be of Cambodian origin, thus purportedly entitling them to exemption from all import duties under the Everything But Arms amendment to the EUs generalised system of preferences made in favour of, amongst other countries, Cambodia in 2001.
+In fact, the consignments all originated in China, so that (being outside the relevant quota for fresh garlic) they were subject both to ad valorem duty of 9.6% and additional anti dumping duty of 120 per 100kg.
+The duty which should have been paid was 503,577.63.
+The false declarations as to origin came to light in the course of HMRCs investigation of later imports, occurring after January 2004, leading to post clearance demands in February 2007 for duty of 370,872.50 issued within three years from the relevant importations.
+The FtT dismissed FMXs appeal against those demands in December 2010, holding that the imports had all originated in China.
+Following that outcome HMRC issued the post clearance demand for duty in respect of the August 2003 January 2004 series of imports in March 2011, long after the expiry (if applicable) of the three year time limit for communication in article 221(3), but only just over three months after the FtTs decision about the later imports.
+It was found by the FtT and is now common ground that, in relation to the 2003 04 imports, all the garlic originated in China, that the makers of the certificates of origin knew that they were false, and would be used for the purposes of UK import declarations, that FMX presented these certificates to HMRC and that, although not implicated in the underlying fraud, FMX thereby committed an act that was liable to give rise to criminal court proceeding under section 167(3) of the Customs and Excise Management Act 1979, which creates a strict liability offence.
+The result of those factual findings is that the criminal proceedings condition for disapplication of the three year time limit for communication set out in article 221(4) was satisfied.
+It is, in passing, common ground that it is not necessary for HMRC to show that criminal court proceedings actually ensued or that the customs debtor was the person who or which committed the relevant criminal act: see Gilbert Snauwaert v Belgium (Joined Cases C 124/08 and C 125/08) [2009] ECR I 6793.
+Conditions set out in the provisions in force
+It is common ground that this phrase is apt to describe both EU provisions and applicable provisions of any relevant member state.
+The UK has not in fact enacted or prescribed any provisions taking the form of a substitute time limit for communicating a customs debt where the criminal proceedings condition in article 221(4) is satisfied.
+The UK has, of course, a substantial body of statutory limitation provisions, now consolidated in the Limitation Act 1980 (for England and Wales), but section 37(2)(a) provides that the 1980 Act shall not apply to any proceedings by the Crown for the recovery of any tax or duty, or interest thereon.
+The result is that there were no provisions in force in England and Wales at the material time which imposed any specific or fixed time limit for the communication of a customs debt in circumstances where the criminal proceedings condition in article 221(4) applied.
+If, as FMX contends, article 221(4) gives member states the option to prescribe a substitute time limit, failing which the three year time limit in article 221(3) remains in force, that option has not been exercised in respect of England and Wales.
+The principle of legal certainty
+In Test Claimants in the FII Group Litigation v Revenue and Customs Comrs (formerly Inland Revenue Comrs) [2012] UKSC 19; [2012] 2 AC 337, 394, Lord Sumption, after mentioning the EU principles of effectiveness and equivalence, continued at para 146: There is a third principle which features less prominently in the case law on this subject but is of considerable importance because it informs the approach of the Court of Justice to the first two.
+This is the principle of legal certainty, which lies at the heart of the EU legal order and entails (among other things) that those subject to EU law should be able clearly to ascertain their rights and obligations.
+Later, at para 149, he continued: The implications of these principles for the operation of rules of limitation in national systems of law is the subject of a considerable body of case law in the Court of Justice.
+Not only is limitation a feature of every national legal system of the EU, but the recognition of national rules of limitation as both necessary and desirable is treated as part of the principle of legal certainty in EU law.
+In Rewe I [1976] ECR 1989, one of the first cases to come before the Court of Justice about the application of limitation periods to claims to enforce directly effective rights in the area of tax, the court observed, at para 5, that the laying down of such time limits with regard to actions of a fiscal nature is an application of the fundamental principle of legal certainty protecting both the taxpayer and the administration concerned.
+This is so, notwithstanding that the effect of that rule is to prevent, in whole or in part, the repayment of those charges: Haahr Petroleum Ltd v Abenra Havn (Case C 90/94) [1997] ECR I 4085, para 45.
+Subject to the overriding principles of effectiveness and equivalence, EU law recognises the public interest in orderly national budgeting and equity between generations of taxpayers, which will generally require rules for establishing clear limits beyond which tax accounts may not be reopened.
+Two potentially conflicting strands of EU jurisprudence have been identified by the parties to this appeal as emerging from decisions of the Court of Justice of the European Union (the CJEU).
+The first is that, where the provisions in force appear to have a lacuna which, because of the absence of any time limit, would appear to permit a relevant body to pursue a claim or take action against a person without any limit of time, then the principle of legal certainty will require that the claim be made or action be taken within a reasonable time.
+The second strand is that where the principle of legal certainty calls for the provision of a time limit, or permits a member state to prescribe a time limit of its own by way of derogation from an EU wide time limit, then nothing other than a time limit which is both fixed in its duration, and laid down in advance, will do.
+Central to the outcome of this appeal is the question which of those strands of EU jurisprudence best illuminates the meaning and effect of article 221(4).
+The earliest case which the court was shown in the first strand of EU authority is Sanders v Commission of the European Communities (Case T 45/01) [2004] ECR II 3315, CFI (Sanders).
+This was a claim for damages for loss sustained as a result of the alleged failure to recruit the applicants as temporary servants of the European Communities during the time they worked for the Joint European Torus (JET) Joint Undertaking.
+It was, in essence, a complaint of discrimination by the Commission made by 95 of its employees.
+The procedural rules governing such an application, contained in the Staff Regulations of Officials of the European Communities, imposed no time limit for the bringing of such claims.
+Nonetheless, the court held that the applicants were under a duty to do so within a reasonable time after becoming aware of the relevant facts, and that this duty arose from the general principles of Community Law, in particular the principle of legal certainty: see paras 59 61 and 66 of the judgment.
+At para 59 it was held that: There is an obligation to act within a reasonable time in all cases where, in the absence of any statutory rule, the principles of legal certainty or protection of legitimate expectation preclude Community institutions and natural persons from acting without any time limits, thereby threatening, inter alia, to undermine the stability of legal positions already acquired.
+At para 60, the court held that, for Community institutions, the duty to act within a reasonable time is an aspect of good administration and derives from the fundamental need for legal certainty.
+In Allen v Commission of the European Communities (Case T 433/10)
+EU:T:2011:744, EGC (Allen), another case about the JET project, 110 employees brought discrimination claims under the Staff Regulations of Officials of the European Communities, which were dismissed by the European Union Civil Service Tribunal (First Chamber) as having been brought out of time.
+On appeal to the General Court, the applicants argued that there was no time constraint for the bringing of such claims.
+In rejecting that argument the court held, at para 26, as follows: In that regard, it must be held that the appellants argument that the absence of a time limit automatically means that it is possible to bring a claim for damages without any time limit cannot succeed.
+It should be noted on that point that, contrary to what the appellants contend, there is an obligation to act within a reasonable time in all cases except those where the legislature has expressly excluded or expressly laid down a specific time limit.
+The legal basis for setting a reasonable time limit, in the absence of any statutory rule, is the principle of legal certainty, which precludes institutions and natural persons from acting without any time limits, thereby threatening to undermine the stability of legal positions already acquired Thus, in the absence of any statutory rule, it is for the judicature to decide on the length of the reasonable period for submitting a claim for damages, in the light of the
+circumstances of the case
+Nencini v European Parliament (Case C 447/13P) EU:C:2014:2372 (Nencini) was a case about recovery of expenses over claimed by an MEP, by the European Parliament.
+Although the relevant procedural rules imposed a five year limitation period running from the notification of such a claim to an MEP, no time limit was specified for the making of that notification itself.
+The communication was made to the MEP more than five years after the Parliament had become aware of the relevant facts.
+The General Court and the Second Chamber on appeal held that the reasonable time principle applied to the communication by the Parliament of such a claim, because the fundamental requirement of legal certainty prevented Community institutions from indefinitely delaying the exercise of their powers.
+The CJEU concluded that, in the circumstances, a delay of more than five years from becoming aware of the relevant facts, before communicating the claim, was to be presumed to be unreasonable, in the absence of special facts, such as conduct by the debtor causing delay or other time wasting manoeuvres or bad faith.
+I turn now to the cases cited to this court in the second strand of EU authority, again in chronological order.
+The most important of those, heavily relied upon by the Court of Appeal in the present case, is Ze Fu Fleischhandel GmbH v Hauptzollamt Hamburg Jonas (Joined Cases C 201/10 and C 202/10) [2011] ECR I 3545, CJEU (Fleischhandel).
+It concerned the interpretation of article 3(1) and (3) of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests and of the principles of proportionality and legal certainty.
+The underlying claim was for repayment by Fleischhandel of wrongly claimed export refunds in relation to goods which had been cleared for export to Jordan but, in fact, transported to Iraq.
+Article 3 of Regulation No 2988/95 provided (so far as relevant) as follows: 1.
+The limitation period for proceedings shall be four years as from the time when the irregularity referred to in article 1(1) was committed.
+However, the sectoral rules may make provision for a shorter period which may not be less than three years. 3.
+Member states shall retain the possibility of applying a
+period which is longer than that provided for in [paragraph] 1
+The exports in question had taken place in 1993, and the claim for repayment was made, in proceedings in the German courts, in 1999, after the discovery of the true export destination during an inspection carried out early in 1998.
+The first instance court, the Finanzgericht Hamburg, decided that the claim was out of time under article 3(1) of Regulation No 2988/95, but the Bundesfinanzhof stayed the proceedings of the Hauptzollamts appeal, and referred the matter to the CJEU.
+The referring courts provisional view was that a general 30 year limitation period in German law could be applied by analogy and, if unreasonably long, could in principle be reduced by judicial decision, but not so as to have rendered the claim in that case time barred.
+The CJEU held that, in principle, a national limitation period as long as 30 years would not offend the principle of legal certainty, but that it would be disproportionately long.
+If the national court sought to reduce a disproportionate period to one which satisfied the requirements of proportionality this would not satisfy the principle of legal certainty unless the reduced period was fixed in advance so as to be sufficiently foreseeable by a person affected by it: see para 52 of the judgment.
+The result was that, no such reduced period having been laid down by the German courts in advance, there was no national limitation period which satisfied the principles of legal certainty and proportionality sufficient to displace the four year period prescribed by article 3(1) of Regulation No 2988/95, by reference to article 3(3).
+It was not argued in that case that there was a lacuna which could be filled by
+an obligation on the claimant to proceed within a reasonable time, no doubt because, in accordance with the clear language of article 3, the four year limitation period prevailed in the absence of any shorter or longer period which complied with the requirements of EU law.
+Firma Ernst Kollmer Fleischimport und export v Hauptzollamt Hamburg Jonas (Case C 59/14) EU.C:2015:660 (Kollmer) was also about article 3 of Regulation No 2988/95.
+At para 30 of his opinion Advocate General Cruz Villaln said that: If a four year limitation period were to appear, from the national authorities point of view, too short to enable them to bring proceedings in respect of irregularities displaying a certain complexity, it would always be open to the national legislature to adopt a longer limitation rule suited to irregularities of that type, which would have to meet the requirements of foreseeability and proportionality deriving from the principle of legal certainty.
+He thus analysed article 3(3) as conferring a form of option enabling member states to substitute the four year period with a longer period of their own choosing, provided that the longer period was compliant with the principle of legal certainty.
+Failing a compliant exercise of that option, the four year period would prevail.
+Valsts iemumu dienests v Veloserviss SIA (Case C 427/14) EU:C:2015:803 was relied upon by the Court of Appeal and by FMX in this court as affording some additional support for the proposition that a taxpayer or customs debtor is entitled, under the principle of legal certainty, not to have his position open to challenge indefinitely: see para 31 of the judgment.
+It was a case about the Customs Code, but it was more concerned with national rules about the time for the conduct of post clearance examinations, than time limits for the communication of a customs debt.
+Article 221(4) of the Customs Code is referred to in passing, but it is not a case in which the criminal proceedings condition for the application of article 221(4) was satisfied.
+The importer in that case was neither implicated in the false declaration of Cambodian origin of the bicycles concerned, nor found to have acted otherwise than in good faith (ie, in the context, without reasonable care).
+There was therefore no issue as to whether the three year time limit for communication of a customs debt was inapplicable in the circumstances.
+I must finally mention Agra Srl v Agenzia Dogane Ufficio delle Dogane di Alessandria (Case C 75/09) [2010] ECR I 5595.
+Although it does not fall squarely into either of the streams of European authority to which I have thus far referred, it is specifically about article 221(4) of the Customs Code, and sheds some light on the purpose behind the criminal proceedings exception from the generally applicable three year time limit for the communication of customs debts.
+The case concerned an irregular import declaration made by Agra for the purpose of obtaining licences for the import of frozen boned meat, submitted in June 2002, which was found to have been false during an inspection in 2007, leading to a subsequent criminal investigation, and communication of a reassessment of the duty payable in March 2008.
+The relevant provisions of the Italian Customs Code in force at the time provided for a five year limitation period for the recovery of customs duties but, where the failure to pay duties had its origins in a criminal offence, time for the purposes of that period was to run from the date on which the order or judgment in the criminal proceedings became final.
+The question referred to the CJEU was whether a time limit prescribed to run from the date of the conclusion of the criminal proceedings complied with article 221(3) and (4) of the Customs Code.
+The CJEU ruled that it did.
+At paras 34 35 of the judgment the CJEU held: 34.
+Secondly, it should be observed that, by merely referring to the conditions set out in the provisions in force article 221(4) of the Customs Code defers to national law as regards the rules governing the extinction of the customs debt through the passage of time, where that debt arises as a result of an act which, at the time it was committed, was liable to give rise to criminal court proceedings. 35.
+Accordingly, in so far as EU law does not lay down common rules in this field, it is for each member state to determine the rules governing the extinction, through the passage of time, of customs debts which it has not been possible to assess because of an act which could give rise to criminal court proceedings (see, by analogy, Case C 91/02 Hannl Hofstetter [2003] ECR I 12077, paras 18 to 20, and Molenbergnatie, para 53).
+That was, of course, a case in which a national provision in force dealt in express terms with the time limit for pursuing a customs debt in circumstances where the criminal proceedings condition in article 221(4) applied rather than, as in the present case, where there is no such specific national provision in force.
+It may readily be supposed that, if what may loosely be called the Fleischhandel test had by then been enunciated, the Italian provision would have complied with it even though the limitation period was set to run from a date (namely when the criminal proceedings became final) which could not be ascertained by the taxpayer in advance of factual matters specific to his case.
+Nonetheless it is of some assistance that the language chosen by the CJEU speaks in terms of the complete disapplication of any community wide time limit (or other common rules) where the act creating the customs debt could give rise to criminal court proceedings, treating the matter as entirely governed by the rules put in place by the relevant member state.
+In short, the disapplication of the three year time limit in article 221(3) is treated as the automatic result of the likelihood of criminal court proceedings, rather than the result of an election by a member state to choose a different time limit for that already prescribed by the EU as appropriate for those circumstances.
+Analysis
+The starting point for an understanding of the meaning and effect of article 221(4) is an examination of its purpose.
+It describes the second of two circumstances in which the ordinary three year time limit for communication of a customs debt is not to apply.
+The first, in article 221(3), is where the liability for duty is subject to an appeal, within the meaning of article 243.
+Then, the three year period is suspended for the duration of the appeal proceedings.
+The second is where the debt is the result of an act which, at the time it was committed, was liable to give rise to criminal court proceedings.
+The purpose of the first exception is because, in the event of an appeal, the amount of the customs debt has not been finally determined as it would otherwise be by its amount being entered in the accounts.
+The purpose of the second exception is not so clear.
+Under the legal systems of some member states it may be that the amount of the customs debt arising from the potentially criminal act may be determined in the criminal proceedings themselves, with a similar consequence in the unsuitability of the ordinary three year time limit as would flow from the lodging of an appeal.
+In other member states, and in the UK in particular, it may be because civil proceedings for the determination of the amount of the debt may be liable to be stayed until the determination of the criminal proceedings, so as to preserve the integrity of the criminal process.
+This would render the ordinary three year period equally inappropriate, but would not necessarily make a simple suspension of the period until the end of the criminal proceedings a satisfactory substitute.
+It is easy to see why, there being likely divergences in the consequences of
+criminal proceedings as between different member states, that the decision was taken to leave the conditions (including time limits) for communication of a customs debt, where the criminal proceedings condition applies, to each member state.
+The important point for present purposes is that it is reasonably clear from the language and purpose of article 221(4), read in its context, that the three year period in article 221(3) is regarded as inappropriate for cases where there is a prospect of criminal court proceedings, rather than as a prima facie appropriate period from which, nonetheless, member states are given the option to depart.
+This is consistent with a plain reading of the language of article 221(4), which simply provides that communication of the debt may be made after the expiry of the three year period, where the debt is the result of an act which was liable to give rise to criminal court proceedings.
+The permission given to communicate such a debt after the expiry of the three year period is, nonetheless, subject to any relevant conditions in the provisions in force which, as appears from article 4(23), includes Community or national provisions.
+There is a sharp difference therefore between this case and the circumstances under review in the Fleischhandel and Kollmer cases, both of which concerned article 3 of Regulation No 2988/95.
+There, member states had the possibility of applying a longer period than the four year EU wide time limit, not in special circumstances where that time limit was disapplied, but in every situation to which it did apply, namely the commission of a relevant irregularity.
+The disapplication of the EU wide time limit was therefore triggered precisely by the exercise of an option conferred upon member states to prescribe a longer time limit.
+If that option was not exercised in accordance with EU law then, leaving aside the provision for a shorter period in article 3(1), there is nothing in that article, or elsewhere in Regulation No 2988/95, which would make it appropriate to disapply the four year time limit in favour of a longer one.
+There was therefore no lacuna in the provisions in force which needed to be filled by reference to an obligation to act within a reasonable time.
+Returning to the present case, the next question is whether there was any provision of UK law in force sufficient to prevent communication of the customs debt arising from the false declaration of origin of the garlic being able to be given without any limit of time, contrary to the principle of legal certainty which the existence of such a liberty on the part of HMRC would involve.
+In my view, there is none.
+In the UT Birss J considered that there were relevant provisions.
+At para 34 he said: The common law (and rules of equity) already equip the courts to prevent procedural unfairness in proper cases and, for example, go as far striking out a claim as abusive as a result of inordinate delay which would make a fair trial impossible.
+To take an extreme example, if HMRC knew all the relevant facts but still waited a further 20 years before issuing a communication and seeking to enforce the debt claim, that sort of conduct would very likely make a fair trial impossible and would be abusive.
+Such a case would very probably be struck out.
+In para 35 he identified the relevant UK law principles as being abuse of process and laches, and HMRC has supported that analysis in its submissions to this court.
+I respectfully disagree.
+Both abuse of process and laches are concerned with the conduct of, or delayed institution of, legal proceedings.
+But this case is concerned with the need, recognised by the EU principle of legal certainty, for there to be some control upon the timing of the communication of a customs debt, rather than upon the institution of subsequent legal proceedings if, after communication of it, the debt has not paid.
+The doctrine of laches suffers from the additional difficulty that it relates to the pursuit of equitable relief: see Snells Equity, 33rd ed (2015), para 5 011.
+The recovery of a post clearance customs debt is far removed from the class of equitable claims.
+An attempt was made by HMRC to argue that, if UK law was otherwise deficient it would be necessary to reinstate the protection to debtors afforded by the Limitation Act 1980, by disapplying section 37(2)(a) of that Act, which renders the Act inapplicable to tax or duty claims by the Crown.
+Again, I disagree.
+There are two difficulties with that analysis.
+The first is whether, even if the provisions of the Limitation Act 1980 were by that route to be re instated for the purpose of protecting debtors from late claims for post clearance customs duty, they would in fact serve that purpose.
+The second is whether, even if they would, section 37(2)(a) would be sufficiently inconsistent with the requirements of EU law for it to have to be disapplied.
+The Limitation Act 1980 provides limitation periods under which (subject to suspension or postponement) time runs against claimants from the moment when they have a complete cause of action.
+The Act is, in short, about limitation of action, rather than time limits for the taking of steps which make the claimants cause of action complete, or steps which would remove a procedural bar to the taking of proceedings.
+In the present context the ability to take proceedings for recovery of a post clearance customs debt depends upon the communication of the debt, followed by non payment during the period prescribed for payment thereafter: see articles 221, 222 and 232 of the Customs Code.
+While it is true that the debt is incurred at the time of the acceptance of the relevant declaration under article 201(2), I consider it unreal to suppose that HMRC is therefore entitled to sue for or enforce the debt before the time when, under the Customs Code as summarised above, it becomes due and payable, and timely payment has not been made.
+Furthermore it would be strange indeed for the Customs Code to have made detailed provision in relation to the time permitted for communication of the debt, if the relevant national customs authority of a member state could nonetheless sue for it regardless of communication, and, in particular, where communication had been made out of time.
+The provision for communication to be made in a timely fashion in article 221 must at least have been designed to prevent the debtor from exposure to liability to proceedings for the enforcement of a debt which had not been communicated to him at all.
+But the existence of a requirement to take certain steps before bringing proceedings for the enforcement of a statutory debt does not always mean that there is no cause of action until those steps have been taken: see Swansea City Council v Glass [1992] QB 844.
+Whether the taking of those steps is a part of the cause of action or simply a procedural requirement is a question of construction of the statute in question; see per Taylor LJ at p 852B C, applying Coburn v Colledge [1897] 1 QB 702 and Sevcon Ltd v Lucas CAV Ltd [1986] 1 WLR 462.
+In written submissions at the courts request following the hearing, both
+parties were of one accord in asserting that the cause of action in the present case was complete on the date when, pursuant to article 201(1), the customs debt was incurred, rather than upon, or following, the communication of it under article 221.
+I am not at all sure that this is correct, and there may have been tactical reasons behind what, on FMXs case, would appear to amount to a concession.
+It seems to me to be well arguable that communication of the debt to the debtor is part of the cause of action for recovery, so that HMRC would have to plead both communication of the debt and (perhaps) non payment within the prescribed time, as part of its cause of action for recovery.
+This is, in particular, because article 222(1) speaks not merely of the right of HMRC to take proceedings for recovery, but of the obligation of the debtor to pay, as following upon the communication of the debt.
+But for the purposes of what follows I will assume that the parties agreement about this is correct.
+Plainly, on that basis, the application of the Limitation Act 1980 would go some way to alleviate the otherwise open ended ability of HMRC to recover the debt at any time, where article 221(4) disapplies the three year time limit.
+Communication of the debt, as a procedural pre condition to bringing proceedings, would have to be made within the relevant limitation period.
+But section 37(2)(a) of the Act is not lightly to be disapplied.
+There must be a real inconsistency with EU law: see Fleming (trading as Bodycraft) v Revenue and Customs Comrs [2008] UKHL 2; [2008] 1 WLR 195, para 25, per Lord Walker of Gestingthorpe.
+Plainly no process of construction can be employed to make section 37(2)(a) mean the exact opposite of what it plainly says.
+The supposed inconsistency with EU law is said to be that, without the three year time limit in article 221(3) HMRC could delay until the crack of doom before communicating the debt, there being no provisions in force to the contrary.
+But EU law has its own remedy for the filling of just such a lacuna, namely the requirement that communication be made within a reasonable time, if otherwise the principle of legal certainty would be offended.
+It is precisely to fill such a lacuna that the EU law requirement to take relevant steps within a reasonable time exists, as is explained and exemplified in the Sanders, Allen and Nencini cases which I have summarised above.
+It was submitted for FMX that this solution had been created only for cases between institutions and national authorities, so that it had no application to a claim by a national authority against a private person such as a customs debtor.
+Again, I disagree.
+That analysis is not born out by those authorities, which apply the duty to act within a reasonable time not only to EU institutions, but also to private individuals, such as employees bringing a discrimination claim against the Commission for which there is no prescribed time limit.
+Since the principle of legal certainty is one of those fundamental principles of general application in EU law I can see no good reason why it should not be generally applicable to fill any lacuna constituted by the absence of a sufficient time limit in relevant provisions in force, whether that is attributable to a failure by EU legislators to provide one (as in the discrimination cases) or to what I regard as a failure by the UK to provide one in the context of the Customs Code, where the prospect of criminal court proceedings leads to the disapplication of the three year time limit in article 221(3).
+It follows that there is no need or requirement to disapply section 37(2)(a) of
+the Limitation Act 1980 to remedy an inconsistency with EU law.
+If, as I conclude, EU law has its own way of dealing with the need to avoid communication of the debt being delayed to an extent which undermines the principle of legal certainty, by the imposition of the requirement that it be made within a reasonable time, then there is no inconsistency in the Limitation Act 1980 regime being made unavailable, by section 37(2)(a), for that purpose.
+Disposition
+I would allow the appeal.
+I have considered whether this court should make a reference to the CJEU but in my view the above analysis demonstrates a clear answer to the question how article 221(4) is to be interpreted and applied in a situation where there are no national provisions in force which limit the time for the communication to the debtor of the amount of duty, where the three year time limit in article 221(3) is displaced.
+The communication must be made within a reasonable time.
+I have also considered whether the question whether this communication was made within a reasonable time needs to be referred back to the FtT or to the UT so that it can be decided.
+It has yet to be decided as a discrete issue, at any level, because the Court of Appeal and the tribunals all decided the appeal on different grounds.
+Neither of the parties invited this court to take that course, in the event that the reasonable time analysis should prevail.
+Furthermore, it is not a case in which further facts need to be decided.
+HMRC made the relevant communication within four months of the outcome of the related appeal to the FtT concerning the post January 2004 imports, which raised similar issues about their provenance.
+It has not been suggested by FMX that this was outside a reasonable time for such a communication and, in my view, it clearly was not.
+It was reasonable for HMRC to delay issuing a communication under article 221 in relation to the pre January 2004 imports while the closely related litigation about the later imports remained on foot.
+The result is that I would restore the decision of the UT, albeit for slightly different reasons.
+LADY ARDEN:
+I agree with Lord Briggs that this appeal should be allowed but, as appears below, in part by a different route, which places more reliance on domestic law.
+The starting point, as I see it, is the interpretation of article 221(4) of the Customs Code as in force at the material time, set out at para 5 above.
+This does not require member states to adopt legislation extending the three year period for communicating the amount of a customs debt if it is the result of an act which when committed was liable to give rise to criminal court proceedings.
+In this Lord Briggs and I agree: see the final sentence of para 31 above.
+It would be odd if member states had to decide to extend the period for communicating a post clearance customs demand resulting from a potentially criminal act since the purpose of article 221(4) is to protect the finances of the EU on whose behalf member states collect customs duties: see, in this connection, the last recital to the Customs Code which states that when adopting measures to implement the Code, the utmost care must be taken to prevent any fraud or irregularity liable to affect adversely the General Budget of the European Communities.
+Article 221(4) provides that such communication may take place, semble without there having to be any enabling member state legislation, under the conditions set out in the provisions in force.
+That means that a communication of a post clearance customs debt is not permitted if it does not comply with the conditions for a valid communication set out in the relevant national law or in EU law.
+Those conditions can trump the extension of time.
+EU law therefore defers to national law.
+For these conditions to apply, there must be some provision of EU law or national law which prevents the communication from taking place with operative effect.
+That would be the case if under national law the customs debt had been extinguished by effluxion of time, for example because of some general provision of the law preventing the state from pursuing claims after a specified period: see Agra Srl v Agenzia Dogane Ufficio delle Dogane di Alessandria (Case C 75/09) [2010] ECR I 5595 (Agra), paras 34 and 35, set out at para 30 above.
+These paragraphs are very important because in them the Court of Justice of the European Union (the CJEU) takes what may be thought to be an unusual step of stating in terms that EU law defers to national law.
+The structure of article 221(4) is quite distinct from the equivalent provision of Regulation No 2988/95 in issue in Ze Fu Fleischhandel GmbH v Hauptzollamt Hamburg Jonas (Joined Cases C 201/10 and C 202/10) [2011] ECR I 3545 (Fleischhandel) (para 23 above), which gave member states the option of providing a limitation period and so the principles of EU law applied to any exercise of that member state option.
+Lord Briggs makes this point, and other points with which I agree, at paras 32 to 37 of his judgment.
+Contrary to FMXs submission, it is in my judgment beyond the reach of a purposive interpretation to read a similar provision into article 221(4).
+The principle of legal certainty applies to acts done by EU institutions and member states in exercise of the powers conferred by them under EU rules: see Valsts iemumu dienests v Veloserviss SIA (Case C 427/14) EU:C:2015:803 (Veloserviss), para 30 and see Test Claimants in the FII Group Litigation v Revenue and Customs Comrs (formerly Inland Revenue Comrs) [2012] UKSC 19; [2012] 2 AC 337, para 146 per Lord Sumption.
+Legal certainty may apply to the imposition of criminal offences when done under a power conferred by the treaties or EU legislation: see Hannl + Hofstetter Internationale Spedition GmbH v Finanzlandesdirektion fr Wien, Niedersterreich und Burgenland (Case C 91/02) [2003] ECR I 12077 which contrary to the submission of FMX, is therefore distinguishable from article 221(4).
+Proceedings to recover payments exacted in breach of EU law also stand in a different category because they are required by EU law to give effect to EU law.
+On that basis, I would distinguish the decisions of the CJEU in Test Claimants in the FII Group Litigation v Revenue and Customs Comrs (formerly Inland Revenue Comrs) (Case C 362/12) [2014] AC 1161, Marks & Spencer plc v Customs and Excise Comrs (Case C 62/00) [2003] QB 866 and Halifax plc v Customs and Excise Comrs (Case C 255/02) [2006] Ch 387, on which FMX relies as showing that EU principles apply even to domestic proceedings.
+It follows that the Court of Appeal were wrong to extract from Fleischhandel
+a principle of EU law that, where a remedy was left to domestic law, there always had to be a finite limitation period fixed in advance.
+Firma Ernst Kollmer Fleischimport und export v Hauptzollamt Hamburg Jonas (Case C 59/14) EU:C:2015:660, discussed by Lord Briggs in para 28 above, is similarly distinguishable.
+Article 221(4) leaves it to domestic law to determine whether the communication of a post clearance demand under that sub article is valid.
+The provisions referred to in article 221(4) include provisions contained in EU law as well as national law (article 4(23) of the Customs Code).
+Moreover, the term provisions has an extended meaning and is not limited to provisions in legislation.
+This may be seen from article 221(1).
+One of the conditions applying to the communications is that they must follow appropriate procedures (see article 221(1)).
+In Belgische Staat v Molenbergnatie NV (Case C 201/04) [2006] ECR I 2049, para 53 the CJEU held that, in the absence of EU legislation or national law setting out appropriate procedures, the competent authorities in the member states had to ensure that the communication would allow persons liable for customs debts to have full knowledge of their rights.
+That decision clearly indicates that the provisions mentioned in article 221(4) need not be rules of law but may be administrative practices.
+But there still has to be a provision: a principle of EU law is not enough because EU law under article 221(4) defers to national law.
+section 37(2)(a) of the Limitation Act 1980 (para 15 above).
+The CJEU has accepted that national law may not impose a limitation period in the context of the recovery of state aid: see, for example, Italian Republic v Commission of the European Communities (Case C 298/00 P) [2004] ECR I 4087, paras 82 to 91.
+There is no reason to suggest that it would not similarly accept the notion in other areas.
+Likewise the Court of Appeal in Revenue and Customs Comrs v GMAC (UK) plc [2016] EWCA Civ 1015; [2017] STC 1247, para 150 (a decision in which the leading judgment was given by Floyd LJ, with which Theis J and I agreed) held that, where proceedings were governed by national law, it was possible for there to be no period of limitation.
+I do not accept FMXs submission that this holding is inapplicable because the case concerned a claim by the taxpayer and not one, as here, by the state since, as HMRC points out, the need for certainty would exist so far as the taxpayer is concerned in both situations.
+In England and Wales, there is no statutory limitation period because of
+There was a further ruling by the Court of Appeal in GMAC (UK) plc which is not relevant in this case.
+The court concluded, in agreement with the earlier decision of the Court of Appeal in British Telecommunications plc v Revenue and Customs Comrs [2014] EWCA Civ 433; [2014] STC 1926, that the EU reasonable time rule could not be applied to defeat the taxpayers claims for recovery of overpaid VAT because HMRC had invalidly imposed a condition that the taxpayer had to prove in an insolvency in order to claim bad debt relief and there was no indication in the domestic legislation that a reasonable time limit for making a claim was being imposed.
+That ruling turned on the domestic law provisions and has no resonance for this appeal.
+Contrary to Lord Briggs at para 29 above, I consider that some minor assistance can be gained in the present case from Veloserviss since at para 37 the CJEU made it clear that customs authorities could act under article 221(4) after expiry of the three year period, and made no reference to the need for any limitation period in domestic law.
+Even applying the extended meaning of provision explained above, there is, so far as this court has been informed, no relevant provision of EU law stipulating the limit of the period within which a communication must be made.
+As the CJEU held in Agra, EU law defers to domestic law.
+Contrary to FMXs submissions, nothing in that case requires a member state to adopt a limitation period.
+All the CJEU holds is that the question of the effect of the elapse of time is a matter for national law.
+The timeliness of a communication of the post clearance demand is only a relevant issue in connection with proceedings for enforcement of the customs debt, and therefore logically it falls to be determined for that purpose under the domestic law governing the time bar.
+It follows that it is not, as I see it, relevant whether there was any finding of fact in these proceedings as to reasonable time or whether a reasonable time rule fulfils the EU principle of legal certainty.
+So far as the law of England and Wales is concerned, it has been said that there is a general duty to exercise statutory powers within a reasonable time: see R (S) v Secretary of State for the Home Department [2007] EWCA Civ 546; [2007] Imm AR 781, para 51 per Carnwath LJ.
+However, reasonableness is a flexible standard.
+If HMRC were to delay unreasonably in communicating a customs debt, it might also be said that its failure to make a decision was irrational in judicial review proceedings: see, for example, R v Inland Revenue Comrs, Ex p Opman International UK [1986] 1 WLR 568.
+It is not necessary to express a final view on these points and there may be a difference of approach between myself and Lord Briggs on this point (cf paras 38 to 39 above).
+It follows that, for the purpose of determining whether HMRC is time barred from recovering a post clearance customs debt under domestic law, I consider that the reasonable time principle in Sanders v Commission of the European Communities (Case T 45/01) [2004] ECR II 3315 (cf paras 45 to 46 above) is inapplicable.
+Under the principle of conferral, the reasonable period principle of EU law can only apply to any incidental issue of law concerning that communication to which EU law applies.
+It cannot restrict the operation of a domestic law to which EU law has been held by the CJEU to defer.
+Thus, in my judgment, it does not so apply in the circumstances under consideration.
+There may be other control mechanisms under domestic law, such as that of judicial review, as already mentioned.
+This may be one of the reasons why article 221(4) has now been revised.
+I need not question the parties agreement as to when the cause of action for a customs debt is complete (cf para 43 above).
+The question does not arise because there is no limitation period.
+Nor do I consider that any question of disapplying section 37(2)(a) arises (cf paras 40 44 above).
+In conclusion, for the reasons given above, which differ in part from those given by Lord Briggs, it is no answer to HMRCs case that they have duly communicated a post clearance customs debt for FMX, which seeks to uphold the decision of the Court of Appeal, to contend that in breach of EU law there is no limitation period fixed by the law of England and Wales for communicating a post clearance customs debt under article 221(4) of the Customs Code.
+I would also therefore allow this appeal.
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+These appeals are concerned with a dispute over the preliminary question of the jurisdiction of the High Court of England and Wales in proceedings which commenced in December 2016.
+As I explain more fully below, the underwriters, Aspen Underwriting Ltd and others (the Insurers), insured the Atlantik Confidence (the Vessel) under a hull and machinery risks insurance policy (the Policy) on the Vessel.
+Credit Europe NV (the Bank), a bank which is domiciled in The Netherlands, funded the re financing of two vessels, including the Vessel, and took mortgages over the Vessel and assignments of the Policy, which identified the Bank as mortgagee, assignee and loss payee.
+The Policy had an exclusive jurisdiction clause by which each party submitted to the exclusive jurisdiction of the courts of England and Wales.
+After the Vessel sank, the Insurers entered into a settlement agreement with the owners and managers of the Vessel (the Owners and Managers) and paid out under the Policy.
+That payment was made to the insurance brokers, Willis Ltd, at the Banks direction.
+Thereafter, the Admiralty Court ([2016] EWHC 2412 (Admlty); [2016] 2 Lloyds Rep 525) held after the trial in a limitation action that the Owners and Managers had procured the scuttling of the Vessel.
+The Insurers commenced legal proceedings in the High Court against the Owners, the Managers and the Bank to recover the sums paid under the settlement agreement by seeking to avoid the settlement agreement on the grounds of the Owners and Managers misrepresentation or the Insurers mistake, and by seeking damages or restitution.
+The Bank challenges the jurisdiction of the High Court in respect of the Insurers claims against it.
+The appeals raise four issues which concern the interpretation of the Brussels Regulation Recast (Regulation (EU) 1215/2012) (the Regulation).
+The issues are: (i) Does the High Court have jurisdiction pursuant to the exclusive jurisdiction clause contained in the Policy? (ii) Are the Insurers claims against the Bank matters relating to insurance within Chapter II, section 3 of the Regulation? (iii) If the answer to (ii) is yes, is the Bank entitled to rely on section 3 by virtue of it falling within a class of persons who are entitled to the protection afforded by that section? (iv) Are the Insurers claims for restitution matters relating to tort, delict or quasi delict under article 7(2) of the Regulation?
+it is not necessary to address the fourth issue.
+In this judgment I address the first three issues.
+For reasons explained below,
+The background facts
+By a loan agreement dated 9 March 2010 (which was subsequently amended) the Bank lent $38.2m to the Owners and to an associated company, Capella Shipping Ltd, the owners of the Atlantik Glory, to re finance the purchase of the Vessel and the Atlantik Glory.
+The loan was secured by a first mortgage on both vessels and by a deed of assignment which included an assignment of the insurances on the vessels.
+In 2011 the Bank lent a further $3.5m to the Owners which was secured by a second mortgage and a second deed of assignment.
+choice of law and exclusive jurisdiction clause in these terms: The Policy: The Policy gives the value of the Vessel as $22m.
+It contains a This insurance shall be governed by and construed in accordance with the law of England and Wales and each party agrees to submit to the exclusive jurisdiction of the courts of England and Wales.
+The Policy includes a schedule of owners and mortgagees.
+A contract endorsement dated 8 February 2013 records that the Vessel was mortgaged in favour of the Bank as per Notices of Assignment and Loss Payable Clauses attached.
+The Notice of Assignment dated 11 February 2013 (the Notice of Assignment), provides that the Owners: GIVE NOTICE that, by assignment in writing dated 11 February 2013, we assigned to [the Bank] , a company incorporated under the laws of the Netherlands acting through its Malta branch all our right, title and interest in and to all insurances effected or to be effected in respect of the Vessel, including the insurances constituted by the policy on which this notice is endorsed, and including all money payable and to
+become payable thereunder or in connection therewith
+The Loss Payable Clause notes the assignment and provides (as far as relevant): Claims payable under this policy in respect of a total or constructive total or an arranged or agreed or compromised total loss or unrepaired damage and all claims which (in the opinion of the Mortgagee) are analogous thereto shall be payable to the Mortgagee up to the Mortgagees mortgage interest.
+The Banks Letter of Authority: After the Vessel sank off the coast of Oman
+on 3 April 2013, discussions took place between the Owners and the Bank about the payment of the Owners operational costs and other matters.
+The Owners informed the Bank that the insured value ($22m) rather than the Vessels then market value would be paid out under the Policy and there was some debate as to how the insurance proceeds would be applied.
+On 4 April 2013, the Owners asked the Bank for a letter formally authorising the Insurers to pay the proceeds of the insurance claim to the brokers, Willis Ltd. The Bank issued a Letter of Authority dated 5 April 2013 relating to the loss of the Vessel and addressed to the Underwriters concerned in these terms: We hereby authorise you to pay to Willis Ltd all claims of whatsoever nature arising from the above mentioned casualty provided that (i) there are no amounts due under the policy and (ii) [the Bank] is the sole loss payee of the policy.
+We agree that settlement of such amounts in account or otherwise with Willis Ltd shall be your absolute discharge in respect of such amounts paid.
+The negotiation of the Settlement Agreement: On 18 April 2013, the Bank asked the Owners for the current status of the claim.
+The Owners replied that they would ask their lawyer for a weekly report but that the correspondence could not be shared because it was private and confidential.
+The settlement was negotiated between the Owners, the Managers and the Insurers.
+The Bank was not involved in the negotiations or in the settlement of the insurance claim.
+Willis Ltd in an email dated 29 July 2013 stated its understanding that the Settlement Agreement would be signed by solicitors on Owners/Banks behalf but that understanding was mistaken because the Settlement Agreement, dated 6 August 2013, was signed by Clyde & Co LLP as agents only for and on behalf of the Assureds (defined as being the Owners and the Managers) and by Norton Rose Fulbright LLP as agents only for and on behalf of Underwriters.
+The Settlement Agreement was between the Underwriters on the one hand and Kairos Shipping Ltd of Malta (as the Owners) and Zigana Gemi Isletmeleri AS of Turkey (as the Managers) and their associated companies on the other.
+In its recitals it narrated the purchase of the Policy, the Banks status as mortgagee and loss payee under the Policy and the Banks consent to the payment of the insurance proceeds to Willis Ltd. The recitals also narrated the loss of the Vessel and the wish of the parties to resolve all claims in relation to the Vessel and the casualty.
+In the operative clauses, the Underwriters agreed to pay $22m to the Assureds in full and final settlement and the Assureds agreed to discharge and release the Underwriters upon payment of the sum to Willis Ltd. The Assureds warranted that, subject to the interests of the Bank, they were the only parties entitled to the settlement sum.
+Clause 4 of the Settlement Agreement confirmed that (subject to an irrelevant exception) the parties did not intend to confer any benefit on third parties which could be enforced by third parties under the Contracts (Rights of Third Parties) Act 1999.
+Clause 5 provided that English law was the governing law of the contract and that the parties submitted to the exclusive jurisdiction of the English High Court in respect of any claims arising in connection with the agreement.
+The insurance proceeds were paid to Willis Ltd in London on or around 16 August 2013.
+Thereafter, Willis Ltd paid US$21,970,272.74 to the Bank in Malta.
+Of that sum US$20,294,143.56 was transferred into an account held by Kairos Shipping Ltd to discharge various debts and US$1,676,129.18 was transferred into the account of Capella Shipping Ltd as part repayment of the debt against the Atlantik Glory.
+After the Admiralty Court held, in Kairos Shipping Ltd v Enka & Co LLC (The Atlantik Confidence) [2016] 2 Lloyds Rep 525, a limitation action raised by Kairos Shipping Ltd, that the master and chief engineer of the Vessel had sunk the Vessel at the request of Mr Agaoglu, the alter ego of the Owners, the Insurers raised the legal proceedings to which I now turn.
+The legal proceedings
+The Insurers alleged that, in presenting a claim under the Policy, the Owners and Managers on their own behalf and on behalf of the Bank) made express or implied representations which included that the Vessel had been lost by an insured peril, that the loss was accidental, that the Owners and Managers had not been guilty of misconduct in procuring the loss of the Vessel and that the Owners, Managers and Bank were entitled to an indemnity in respect of that loss.
+The Insurers also contended that the Bank had independently made such representations or was vicariously liable for the Owners and Managers representations.
+They averred that the representations, which were untrue and material, had induced them to enter into the Settlement Agreement.
+The Insurers therefore asked the court (i) to avoid or rescind the Settlement Agreement on grounds of misrepresentation or mistake; (ii) because of that avoidance or rescission to order restitution of the sums paid; (iii) to award damages in deceit, for negligent misrepresentation and/or pursuant to sections 2(1) and 2(2) of the Misrepresentation Act 1967; and (iv) to order restitution of the sums paid by mistake.
+In response the Bank challenged the jurisdiction of the High Court.
+On 27 July 2017 Teare J in his first judgment ([2018] 1 All ER (Comm) 228; [2017] 2 Lloyds Rep 295; [2017] EWHC 1904 (Comm)) held that the High Court had jurisdiction in respect of the claims for damages for misrepresentation under article 7(2) of the Regulation but not in respect of the claims for restitution.
+He also held that the court did not have jurisdiction based on the exclusive jurisdiction clauses in the Settlement Agreement and the Policy.
+In a second judgment dated 1 December 2017 ([2017] EWHC 3107 (Comm)) Teare J held that the court had jurisdiction in respect of the Insurers claim for damages for misrepresentation pursuant to the Misrepresentation Act 1967.
+Both the Insurers and the Bank appealed to the Court of Appeal with Teare Js permission.
+The Court of Appeal (Gross, Moylan and Coulson LJJ) in a judgment dated 21 November 2018 ([2018] EWCA Civ 2590; [2019] 1 Lloyds Rep 221) affirmed Teare Js decisions.
+In the judgment given by Gross LJ, with whom the other Lord Justices agreed, the Court of Appeal held, first, that the Bank was not bound by the exclusive jurisdiction clause in the Settlement Agreement and that the Insurers did not have a good arguable case that the Bank was a party to that agreement.
+That finding is not in issue in the appeals to this court.
+Secondly, the Bank was not bound by the exclusive jurisdiction clause in the Policy by asserting its right to payment under the Policy as loss payee and assignee.
+The Bank would not be so bound unless and until it commenced legal proceedings against the Insurers.
+In any event the Bank did not assert its rights against the Insurers by issuing the Letter of Authority.
+Those findings are the subject of issue 1 in these appeals.
+Thirdly, the Bank was not entitled to rely on section 3 of the Regulation because its business of ship finance involved it in the settlement of insurance claims and was analogous to that of an insurance professional and the Bank fell within a class of persons not deemed to be a weaker party.
+These findings are the subject of issues 2 and 3 in these appeals.
+Fourthly, the Insurers claims against the Bank for damages for misrepresentation were matters relating to tort, delict or quasi delict under article 7(2) of the Regulation with the harmful event occurring in England.
+The validity of this finding depends on this courts answers to issues 1, 2 and 3.
+Finally, the Insurers claims against the Bank for restitution were not matters relating to tort, delict or quasi delict within article 7(2) of the Regulation.
+That is issue 4 in these appeals.
+Discussion
+The Regulation: Before discussing the issues raised in these appeals it may be helpful to say something about the structure of the Regulation.
+I discuss the relevant provisions of the Regulation more fully below.
+In order to promote the free circulation of judgments within member states, the Regulation seeks to set out rules which are highly predictable and are founded on the principle that jurisdiction is generally based on the defendants domicile.
+Thus article 4 provides that: (1) Subject to this Regulation, persons domiciled in a member state shall, whatever their nationality, be sued in the courts of that member state.
+And article 5(1) provides: Persons domiciled in a member state may be sued in the courts of another member state only by virtue of the rules set out in sections 2 to 7 of this Chapter.
+It is only in well defined circumstances that jurisdiction based on domicile is replaced by a different connecting factor based on the subject matter of the dispute or the autonomy of the parties (recital (15)).
+The Court of Justice of the European Union (CJEU) has repeatedly held, as I will show below, that articles which provide for the exclusion of jurisdiction based on domicile are to be narrowly interpreted.
+There are also articles which provide for alternative grounds of jurisdiction in addition to the defendants domicile.
+The alternative grounds, which include matters relating to contract and matters relating to tort, delict or quasi delict (article 7(1) and (2)), are based on a close connection between the court and the action or are in order to facilitate the sound administration of justice.
+The requirement of the close connection is to promote legal certainty (recital (16)).
+Subject to certain exclusive grounds of jurisdiction, the Regulation also respects the autonomy of parties to a contract to determine the courts to have jurisdiction but it restricts that autonomy in insurance, consumer and employment contracts (recital (19)).
+It appears to me that when a court comes to interpret an article in the Regulation it must consider whether on the one hand the rule contained in the article supports the general rule of jurisdiction based on the defendants domicile or on the other hand purports to exclude or provide an alternative to that general rule.
+The relevant test: Although there was a challenge in the Court of Appeal, there is now no disagreement between the parties that in relation to the preliminary question of the jurisdiction of the English courts it is for the Insurers to show that they have a good arguable case in the sense that they have the better of the argument.
+Issue 1: Does the High Court have jurisdiction pursuant to the exclusive English jurisdiction clause contained in the Policy?
+Mr MacDonald Eggers QC for the Insurers contends in summary that the Bank is bound by the exclusive jurisdiction clause in the Policy because in issuing the Letter of Authority it asserted a claim under the Policy for payment of the insured sums as assignee and loss payee.
+It was not disputed by the parties that the Bank would be bound by the clause if it had sued the Insurers.
+But the obligation to submit to the jurisdiction of the English courts went further than the commencement of legal proceedings and covered any assertion of, or indeed reliance on, its rights in relation to the Policy by the Bank.
+For, on its proper construction, the exclusive jurisdiction clause extends to an obligation on an assignee to submit to the jurisdiction of the English courts if there were a dispute or claim relating to the Policy, as for example if the Bank received the Policy proceeds without any dispute at the time and without having initiated legal proceedings but there was later a dispute about its entitlement to those funds.
+Further, the Insurers would be entitled to sue the Bank in the English courts for negative declaratory relief and such a claim would be the same cause of action as a claim by the Bank for payment.
+The Insurers submit that it would be incoherent for the law to apply the exclusive jurisdiction clause only when the assignee initiated a formal legal claim.
+I am satisfied that these arguments should not be accepted and that Teare J
+and the Court of Appeal did not err on this issue.
+I begin by examining EU law in the jurisprudence of the CJEU before turning to domestic law.
+Under EU law a jurisdiction agreement in a contract will bind a defendant only if there is actual consensus between the parties which is clearly and precisely demonstrated: Coreck Maritime GmbH v Handelsveem BV (Case C 387/98) [2000] ECR I 9337, paras 13 15 (a case concerning article 17 of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968, as amended); Profit Investment Sim SpA v Ossi (Case C 366/13) [2016] 1 WLR 3832 (CJEU), para 27 (a case on article 23 of the earlier Brussels Regulation, Regulation (EC) No 44/2001).
+Thus a jurisdiction agreement in an insurance contract does not bind a third party beneficiary of insurance who is domiciled in a different contracting state and who has not expressly subscribed to the clause: Socit financire et industrielle du Peloux v Axa Belgium (Case C 112/03) [2006] QB 251, para 43 (a case on article 12 of the 1968 Brussels Convention as amended).
+Nor does such an agreement bind a victim of insured damage who wishes to bring an action directly against the insurer: Assens Havn v Navigators Management (UK) Ltd (Case C 368/16) [2018] QB 463 (CJEU), para 40 (a case on article 13(5) of Regulation No 44/2001).
+EU law however recognises that a person who is not a party to a jurisdiction agreement may be taken to have consented to it if, under the applicable national law, it became the successor to the rights and obligations under the contract: Partenreederei M/S Tilly Russ v Haven & Vervoerbedrijf Nova NV (Case 71/83) [1985] QB 931, paras 24 26.
+That case concerned a bill of lading, which, under the relevant national law, vested in a third party holder all the rights of the shipper under the bill of lading and subjected it to all of the shippers obligations mentioned in the bill of lading, including the agreement on jurisdiction.
+Thus, in Coreck Maritime (above) the CJEU stated (para 27): a jurisdiction clause agreed between a carrier and a shipper which appears in a bill of lading is enforceable against a third party bearer of the bill of lading if he succeeded to the rights and obligations of the shipper under the applicable national law when he acquired the bill of lading.
+If he did not, it must be ascertained whether he accepted that clause having regard to the requirements laid down in the first paragraph of article 17 of the Convention.
+The first paragraph of article 17 (as article 25 of the Regulation now does) required that an agreement on jurisdiction had to be in writing or evidenced in writing, or in a form which accorded with practices which the parties had established between themselves, or in international trade or commerce in a form which conformed with an established trade usage of which the parties were or ought to have been aware.
+In this case it is not suggested that there was an agreement in any of those forms.
+The court must therefore look to national law to determine whether the Bank can be seen in EU law as the successor of the Owners and Managers who are subject to the jurisdiction clause.
+The Banks entitlement to receive the proceeds of the Policy in the event that there was an insured casualty rests on its status as an equitable assignee.
+It is trite law that an assignment transfers rights under a contract but, absent the consent of the party to whom contractual obligations are owed, cannot transfer those obligations: Tolhurst v Associated Portland Cement Manufacturers (1900) Ltd [1902] 2 KB 660, 668 670 per Collins MR.
+An assignment of contractual rights does not make the assignee a party to the contract.
+It is nonetheless well established that a contractual right may be conditional or qualified.
+If so, its assignment does not allow the assignee to exercise the right without being subject to the conditions or qualifications in question.
+As Sir Robert Megarry V C stated in Tito v Waddell (No 2) [1977] Ch 106, 290, you take the right as it stands, and you cannot pick out the good and reject the bad.
+This concept, which has often been described as conditional benefit, is to the effect that an assignee cannot assert its claim under a contract in a way which is inconsistent with the terms of the contract.
+Several examples of its application or consideration were cited to the court.
+See, for example, Montedipe SpA v JTP RO Jugotanker (The Jordan Nicolov) [1990] 2 Lloyds Rep 11, 15 16 per Hobhouse J; Pan Ocean Shipping Co Ltd v Creditcorp Ltd (The Trident Beauty) [1994] 1 WLR 161, 171 per Lord Woolf; Schiffahrtsgesellschaft Detlev von Appen GmbH v Voest Alpine Intertrading GmbH (The Jay Bola) [1997] 2 Lloyds Rep 279, 286 per Hobhouse LJ; Youell v Kara Mara Shipping Co Ltd [2000] 2 Lloyds Rep 102, paras 58 62 per Aikens LJ; Shipowners Mutual Protection and Indemnity Association (Luxembourg) v Containerships Denizcilik Nakliyat Ve Ticaret AS (The Yusuf Cepnioglu) [2016] 1 Lloyds Rep 641; [2016] Bus LR 755, paras 23 25 per Longmore LJ; and Aline Tramp SA v Jordan International Insurance Co (The Flag Evi) [2017] 1 Lloyds Rep 467, para 40 per Sara Cockerill QC, sitting as a Deputy High Court Judge.
+In my view, the formulation of the principle by Hobhouse LJ in The Jay Bola, which the Court of Appeal approved in The Yusuf Cepnioglu, is the best encapsulation.
+In The Jay Bola the insurers of cargo for the voyage charterer asserted rights, which had been assigned to them by the voyage charterer by subrogation under foreign law, by raising court proceedings in Brazil against the owners and the time charterer.
+On the application of the time charterers, Morison J granted an anti suit injunction against the insurers because the arbitration clause in the voyage charter regulated the means by which the transferred right could be enforced.
+The Court of Appeal upheld his order.
+Hobhouse LJ stated ([1997] 2 Lloyds Rep 279, p 286): the insurance company is not entitled to assert its claim inconsistently with the terms of the contract.
+One of the terms of the contract is that, in the event of dispute, the claim must be referred to arbitration.
+The insurance company is not entitled to enforce its right without also recognizing the obligation to arbitrate.
+This formulation emphasises the constraint on the assertion of a right as being the requirement to avoid inconsistency and, whether the clause is an arbitration clause, as in The Jay Bola, or an exclusive jurisdiction clause, as in Youell (above), it is the assertion of the right through legal proceedings which is in conflict with the contractual provision that gives rise to the inconsistency.
+In Rals International Pte Ltd v Cassa di Risparmio di Parma e Piacenza SpA [2016] 5 SLR 455, para 55, the Singapore Court of Appeal, commenting on The Jay Bola and the proposition that an assignee does not become a party to the contract but would not be entitled to enforce its rights against the other party without also recognising the obligation to arbitrate, stated: This approach of entitlement rather than obligation may be more easily reconcilable with the consensual nature of arbitration.
+This is because the assignee is only taken to submit to arbitration at the point it elects to exercise its assigned right.
+In the present case the Bank did not commence legal proceedings to enforce its claim.
+Indeed, it did not even assert its claim but left it to the Owners and the Managers to agree with the Insurers the arrangements for the release of the proceeds of the insurance policy by entering into the Settlement Agreement.
+It is not disputed that the Bank was not a party to the Settlement Agreement and the Bank derived no rights from that agreement.
+The Letter of Authority, which the Bank produced at the request of the Owners and the Managers, enabled both the Insurers and Willis Ltd to obtain discharges of their obligations and to that end it was attached to the Settlement Agreement.
+The Letter of Authority facilitated the settlement between the Insurers and the Owners and provided the Owners/Managers with a mechanism by which the Bank as mortgagee, assignee and loss payee could receive its entitlement.
+At the time of payment of the proceeds of the Policy there was no dispute as to the Banks entitlement and no need for legal proceedings.
+There was therefore no inconsistency between the Banks actions and the exclusive jurisdiction clause.
+The Bank therefore is not bound by an agreement as to jurisdiction under article 15 or article 25 of the Regulation.
+The Insurers argue that, if they had refused to pay the proceeds of the Policy to the Bank and had commenced proceedings against the Bank in England seeking negative declaratory relief, the Bank would have been bound by the exclusive jurisdiction clause.
+They submit that it makes no sense to distinguish a claim for negative declaratory relief from the Banks claim.
+This is because the Banks right to sue for an indemnity under the Policy and the Insurers right to sue for a declaration that it is not liable to the Bank are the same cause of action: Gubisch Maschinenfabrik KG v Palumbo (Case 144/86) [1987] ECR 4861, paras 15 19.
+This incoherence, it is submitted, militates against the Banks analysis.
+I disagree.
+The Bank is not a party to the contract contained in the Policy.
+The Bank is not bound by that contract to submit to the jurisdiction of the English courts if the Insurers raise an action in England.
+If the Insurers claims fall within section 3 of the Regulation, the Insurers may bring proceedings against the Bank only in the courts of the member state of the Banks domicile, that is The Netherlands.
+I turn then to that question.
+Issues 2 and 3: Are the Insurers claims against the Bank matters relating to insurance within section 3 of the Regulation and if so, is the Bank entitled to rely on that section?
+Section 3 of chapter II of the Regulation is entitled Jurisdiction in matters relating to insurance.
+The section sets out rules which govern jurisdiction in matters relating to insurance.
+The relevant article in this appeal is article 14(1) which provides (so far as relevant): an insurer may bring proceedings only in the courts of the member state in which the defendant is domiciled, irrespective of whether he is the policyholder, the insured or a beneficiary. (Emphasis added) It is noteworthy that the article, unlike many articles in the Regulation, is not creating an alternative ground of jurisdiction in addition to domicile of the defendant nor is it purporting to exclude the domicile of the defendant as an available ground.
+On the contrary, it makes that ground of jurisdiction, which is the same as the principal ground of jurisdiction under article 4, the exclusive ground in those circumstances in which article 14 applies.
+Teare J held that the nature of the Insurers claim against the Bank was so closely connected with the question of the Insurers liability to indemnify for the loss of the Vessel under the Policy that the subject matter of the claim can fairly be said to relate to insurance.
+The Court of Appeal, agreeing with Teare J, stated ([2019] 1 Lloyds Rep 221, para 78): [A]s a matter of reality and substance, the foundation of the Underwriters claims lies in the Policy.
+The crucial (if not the only) question is whether the Vessel was lost by reason of a peril insured against under the Policy or whether the loss arose by reason of wilful misconduct on the part of the Owners.
+On this footing, there is the most material nexus between the Underwriters claims and the Policy.
+But in spite of this success the Bank did not obtain the protection of article 14 of the Regulation because (although their reasoning diverged) both Teare J and the Court of Appeal held that that protection was available only to the weaker party in circumstances of economic imbalance between the claimant insurer and the defendant.
+Mr Steven Berry QC for the Bank appeals against the finding that article 14 did not apply to the claim because of the absence of economic imbalance between the Insurers and the Bank.
+Mr MacDonald Eggers argues against the finding that the subject matter of the claim relates to insurance and defends the exclusion of article 14 on the ground that the Bank was not the weaker party.
+On issue 2 Mr MacDonald Eggers submits that a claim can be regarded as a matter relating to insurance only if the subject matter of the claim is, at least in substance, a breach of an obligation contained in, and required to be performed by, an insurance contract.
+He submits that this proposition is supported by the CJEU case of Brogsitter v Fabrication de Montes Normandes EURL (Case C 548/12) [2014] QB 753 (Brogsitter), which is a case concerning matters relating to a contract under article 7(1) of the Regulation.
+The heading of section 3, Matters relating to insurance should be read as matters relating to insurance contracts and he refers to recitals (18) and (19) and articles 15(5), 26(2), 31(4) and 45(1)(e)(i) in support of that contention.
+Secondly, there is no logical reason for the test for the link between the contract and the claim to be wider for the particular contracts covered by sections 3 (insurance), 4 (consumer contracts) and 5 (employment contracts) of the Regulation than it is for general contracts under article 7(1).
+Thirdly, the application of the Brogsitter test to the meaning of the title of section 3 promotes legal certainty and predictability.
+Fourthly, the Brogsitter test has been applied by courts outside the context of article 7(1).
+He refers to Bosworth v Arcadia Petroleum Ltd [2016] EWCA Civ 818; [2016] 2 CLC 387, para 66, Granarolo SpA v Ambrosi Emmi France SA (Case C 196/15) [2016] IL Pr 32, paras 21 22, and Committeri v Club Mditerrane SA [2018] EWCA Civ 1889; [2019] IL Pr 19, para 52.
+Fifthly, he submits that there is support for the Insurers approach in the Court of Appeals judgment in National Justice Cia Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) (No 2) [2000] 1 WLR 603; [2000] 1 Lloyds Rep 129.
+While Mr MacDonald Eggers presented these submissions clearly and attractively, I am not persuaded that Teare J or the Court of Appeal erred in their approach.
+I have reached this view for the following reasons.
+First, it is to my mind important to note that the title to section 3 Jurisdiction in matters relating to insurance is broader than the words of article 7(1) matters relating to a contract (emphasis added).
+Similarly, it is wider than the titles of section 4 Jurisdiction over consumer contracts and section 5 Jurisdiction over individual contracts of employment.
+The difference in wording is significant as it would require to be glossed if it were to be read as Matters relating to an insurance contract.
+Such a gloss would not be consistent with the requirement of a high level of predictability of which recital (15) speaks.
+Secondly, the scheme of section 3 is concerned with the rights not only of parties to an insurance contract, who are the insurer and the policyholder, but also beneficiaries of insurance and, in the context of liability insurance, the injured party, who will generally not be parties to the insurance contract.
+Thirdly, the recitals on which the Insurers found do not carry their case any distance.
+Recital (18), to which I will return below, sets out a policy of protecting the weaker party to certain contracts including insurance contracts.
+Recital (19) which calls for respect for the autonomy of parties to certain contracts to select the jurisdiction in which to settle their claims does not assist.
+Neither does article 15(5), which provides that in contracts of insurance which cover the risks set out in article 16 (such as damage to sea going ships and aircraft) the parties may agree to contract out of section 3.
+The references to the policyholder, the insured, and the beneficiary of the insurance contract in the other recitals to which the court was referred cast no light on the meaning of the title to section 3.
+Fourthly, as I will show below (para 57) the CJEU has often held that articles, such as article 7(1), which derogate from the general rule of jurisdiction under article 4 should be interpreted strictly.
+Article 14 by contrast reinforces article 4.
+The Ikarian Reefer (No 2) also does not assist the Insurers.
+The dispute in that case involved an action by the owners of the vessel against her hull and machinery underwriters which were represented by Prudential, and the Court of Appeal held that the vessel had been deliberately run aground and deliberately set on fire on the authority of her owners.
+Prudential recovered much of their costs from the owners and then applied under section 51 of the Supreme Court Act 1981 to recover the balance of their costs from a non party, Mr Comninos, who was the principal behind the owners, and who it was said had directed and financed the litigation.
+The Court of Appeal held that, if the claim for costs constituted proceedings, those proceedings were not proceedings relating to insurance matters.
+If the claims were ancillary to the action by the owners against the underwriters that action related to insurance matters and had properly been raised in England.
+The underwriters were not seeking to raise claims relating to insurance matters against Mr Comninos.
+Rather they were seeking to recover unpaid costs incurred in a litigation relating to insurance matters in which they had been successful.
+Fifthly, and in any event, as Mr Berry submits, if the Brogsitter test is as Mr MacDonald Eggers characterises it and is applicable in relation to section 3, that test is met in the circumstances of this case.
+The Insurers claim is that there has been an insurance fraud by the Owners and the Managers for which the Bank is vicariously liable.
+Such a fraud would inevitably entail a breach of the insurance contract as the obligation of utmost good faith applies not only in the making of the contract but in the course of its performance: Versloot Dredging BV v HDI Gerling Industrie Versicherung AG (The DC Merwestone) [2016] UKSC 45; [2017] AC 1, para 8 per Lord Sumption.
+It is therefore not necessary for this Court to analyse the proper application of the jurisprudence in Brogsitter.
+I therefore conclude that, subject to issue 3, which concerns the recitals and case law which refer to the protection of the weaker party, the Insurers claims against the Bank are matters relating to insurance within section 3 of the Regulation.
+Teare J ([2017] EWHC 1904 (Comm)), in holding that the Bank could not take the benefit of article 14, relied on recital (18) of the Regulation, which provides: In relation to insurance, consumer and employment contracts, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules.
+Teare J also referred to the judgment of the CJEU in Vorarlberger Gebietskrankenkasse v WGV Schwbische Allgemeine Versicherungs AG (Case C 347/08) [2009] ECR I 8661; [2010] Lloyds Rep IR 77 (Vorarlberger), paras 40 45 in support of the proposition that the section 3 protections should not be extended to persons for whom that protection was not justified.
+In the Court of Appeal, Gross LJ ([2019] 1 Lloyds Rep 221, paras 81 123) elaborated on the judges reasoning, referred to several cases, which post dated the judgment at first instance and which I discuss below, and upheld the judges decision on this issue.
+I respectfully disagree with that conclusion.
+There is no weaker party exception which removes a policyholder, an insured or a beneficiary from the protection of article 14.
+I have come to this view for the following six reasons, which I will vouch when I discuss the case law below.
+First, the reason why article 14 protects the policyholder, the insured and the beneficiary of an insurance policy is because they are generally the weaker party in a commercial negotiation with an insurance company and are as a matter of course presented with a standard form contract.
+Secondly, while recital (18) explains the policy behind, among others, section 3 of the Regulation, it is the words of the relevant articles which have legal effect and the recitals are simply an aid to interpretation of those articles.
+Thirdly, derogations from the jurisdictional rules in matters of insurance must be interpreted strictly.
+Fourthly, the CJEU in its jurisprudence has set its face against a case by case analysis of the relative strength or weakness of contracting parties as that would militate against legal certainty.
+Instead, it has treated everyone within the categories of the policyholder, the insured or the beneficiary as protected unless the Regulation explicitly provides otherwise.
+Fifthly, the CJEU looks to recital (18) not to decide whether a particular policyholder, insured or beneficiary is to be protected by section 3 but in the context of reaching a decision whether by analogy those protections are to be extended to other persons who do not fall within the list of expressly protected persons.
+Sixthly, the policy which underlies the jurisprudence of the CJEU when it decides whether to extend the protection to persons not expressly mentioned in section 3 is that the court seeks to uphold the general rule in article 4 that defendants should be sued in the courts of the member state of their domicile and allows extensions to the protection of section 3 only where such an extension is consistent with the policy of protecting the weaker party.
+The CJEUs justification for the protection conferred on the policyholder, the insured and the beneficiary is to be seen in Gerling Konzern Speziale Kreditversicherungs AG v Amministrazione del Tesoro dello Stato (Case 201/82) [1983] ECR 2503 (Gerling), which concerned the validity of a jurisdiction clause under the predecessor of article 25 of the Regulation.
+The CJEU stated: 15. the insurer, if his original consent has been made clear in the provisions of the contract, cannot object to such an exclusion of jurisdiction on the sole ground that the party benefiting from the requirement imposed on others, not being a party to the contract, has not himself satisfied the requirement of writing prescribed by article 17 of the Convention. 16.
+Consideration of the provisions of section 3 of the Convention relating to jurisdiction in matters relating to insurance confirms this view. 17.
+It is apparent from a consideration of the provisions of that section in the light of the documents leading to their enactment that in affording the insured a wider range of jurisdiction than that available to the insurer and in excluding any possibility of a clause conferring jurisdiction for the benefit of the insurer their purpose was to protect the insured who is most frequently faced with a predetermined contract the clauses of which are no longer negotiable and who is in a weaker economic position. (Emphasis added) This is consistent with the statement by Advocate General Mancini in Gerling that the policyholder, the insured and the beneficiary were given protection because they were the persons regarded as weaker.
+Turning to the second reason which I have set out in para 43 above, it is clear that the recitals of the Regulation are a useful tool in interpreting the operative provisions contained in the articles of the Regulation.
+But a distinction falls to be made between the justification or rationale of a ground of jurisdiction and the ground itself.
+See the judgment of the CJEU in Folien Fischer AG v Ritrama SpA (Case C 133/11) [2013] QB 523, paras 30 40 and the judgment of this court in AMT Futures Ltd v Marzillier, Dr Meier & Dr Guntner Rechtsanwaltsgesellschaft mbH [2017] UKSC 13; [2018] AC 439, paras 14 and 29.
+It is noteworthy that article 14 of the Regulation speaks of the policyholder, the insured and the beneficiary without further qualification.
+Thirdly, in Socit financire et industrielle du Peloux v Axa Belgium (Case C 112/03) [2006] QB 251 (Peloux), a case which concerned what are now articles 15 and 23 of the Regulation and the ability of a party by agreement to depart from the provisions of what is now section 3 of the Regulation, the CJEU treated the Convention (now the Regulation) as establishing a system in which derogations from the jurisdictional rules in matters of insurance must be interpreted strictly (para 31).
+The existence of an unexpressed exception to the protection given to the policyholder, the insured and the beneficiary is scarcely consistent with this approach.
+Fourthly, it is clear that the CJEU does not enquire into relative strengths and weaknesses of particular parties in applying the provisions of section 3 of the Regulation.
+Such an exercise would risk giving rise to legal uncertainty and would prevent the rules of jurisdiction from being highly predictable.
+Instead the in to protection.
+Thus, Regulation defines Landeskrankenanstalten Betriebsgesellschaft KABEG v Mutuelles du Mans Assurances MMA IARD SA (Case C 340/16) [2017] IL Pr 31 (KABEG), Advocate General Bobek (para AG47) stated: those who are entitled in contrast to matters relating to employees and consumers, the notion of the weaker party in insurance related matters is defined rather broadly.
+It includes four categories of persons: the policyholder, the insured, the beneficiary and the injured party.
+As a matter of fact, these parties may be economically and legally rather strong entities.
+That flows from the broad language of the insurance related provisions of Regulation No 44/2001 as well as from the types of insurance described therein. (Emphasis added) The reference to the injured party is a reference to the provision relating to liability insurance which is now article 11 of the Regulation.
+The breadth of the protection given in section 3 was acknowledged by the CJEU in its judgment in KABEG in which the court stated (para 32): As the Advocate General observed in [AG47] of his Opinion, the notion of the weaker party has a wider acceptance in matters relating to insurance than those relating to consumer contracts or individual employment contracts.
+The CJEU went on to state (para 34): a case by case assessment of the question whether an employer which continues to pay the salary may be regarded as the economically weaker party in order to be covered by the definition of injured party within the meaning of article 11(2) of Regulation No 44/2001 [now article 13(2) of the Regulation], would give rise to the risk of legal uncertainty and would be contrary to the objective of that Regulation, laid down in recital (11) thereof [now recital (15) of the Regulation], according to which the rules of jurisdiction must be highly predictable.
+In Peloux (para 46 above) the CJEU observed (para 31) that what is now
+article 15 of the Regulation lists exhaustively the cases in which the parties may derogate by agreement from the rules laid down in section 3.
+It is article 15(5) which is relevant in this case as it provides that the provisions of section 3 may be departed from by an agreement which relates to a contract of insurance in so far as it covers one or more of the risks set out in article 16.
+Those risks include perils covered by marine insurance and by the insurance of aircraft and offshore installations.
+The exceptions which articles 15(5) and 16 establish are the result of a request by the United Kingdom on its accession to the Brussels Convention in 1968 that the protections given to policyholders in articles 7 12 of that Convention be restricted to exclude among other things the insurance of large risks.
+The solution which was adopted in line with the recommendations of the Report on the Convention by Professor Dr Peter Schlosser (OJEC, 5 March 1979) was to introduce the list of certain types of policy in what are now articles 15(5) and 16 of the Regulation.
+The Schlosser Report explains the thinking behind those provisions.
+It states (para 140): The problem was one of finding a suitable demarcation line.
+Discussions on the second Directive on insurance had already revealed the impossibility of taking as criteria abstract, general factors like company capital or turnover.
+The only solution was to examine which types of insurance contracts were in general concluded only by policyholders who did not require social protection.
+It is in my view clear that the protections afforded to the policyholder, the insured and the beneficiary are given because such classes of person generally are the weaker party and that the Regulation has identified specific types of insurance contracts and allowed the parties to those types of insurance contract to exclude by agreement the protections which otherwise would be in place.
+Fifthly, the case law of the CJEU, to which the Court of Appeal referred for support of the view that the Bank should be excluded from the protection of article 14 of the Regulation because there was not an economic imbalance between it and the Insurers, does not support that conclusion.
+Instead it shows that the CJEU has regard to recital (18) and the concept of the party in the weaker economic position when it is asked to extend the protection of section 3 beyond the policyholder, the insured, the beneficiary and the injured party.
+In Universal General Insurance Co (UGIC) v Group Josi Reinsurance Co SA (Case C 412/98) [2001] QB 68 (Group Josi) the CJEU had to consider whether the rules on jurisdiction specific to matters relating to insurance were to be applied to a dispute between a reinsured and a reinsurer under an insurance contract.
+The court held that a reinsurance contract could not be equated with an insurance contract and the protections afforded to policyholders could not be extended to a reinsured.
+The CJEU stated (para 65): The role of protecting the party deemed to be economically weaker and less experienced in legal matters than the other party to the contract which is fulfilled by [the provisions of section 3] implies, however, that the application of the rules of special jurisdiction laid down to that end should not be extended to persons for whom that protection is not justified (Emphasis added) It is of note that the CJEU interpreted section 3 as deeming the named parties, the policyholder, the insured, the beneficiary and (under liability insurance) the injured party to be economically weaker and applied the economic weakness criterion to prevent an extension of the protection from those persons to a reinsured.
+The CJEU adopted the same approach in Groupement dintrt conomique (GIE) Runion Europenne v Zurich Espaa Socit Pyrenenene de Transit dAutomobiles (Case C 77/04) [2005] ECR I 4509; [2006] Lloyds Law Rep 215 (GIE) which concerned an attempt by an insurer, which had been sued by its insured, to bring Zurich Espaa into the action as a third party on the basis that it also had covered the loss as the insurer of the claimant which had sued the insured.
+The dispute was as to whether Zurich could invoke the protection of what is now article 14 of the Regulation requiring it to be sued in the courts of its domicile or whether the insurer could invoke the third party jurisdiction in what is now article 8(2) of the Regulation.
+The CJEU repeated the formula in para 65 of Group Josi, which I have quoted above, and (para 22) spoke of the authors of the Convention having taken as their premise that the provisions of section 3 applied only to relations characterised by an imbalance between the parties.
+It referred to the express exclusion by what are now articles 15(5) and 16 of the Regulation of the insurance contracts specified therein (see para 48 above) which was justified because the insured in those types of insurance contracts enjoyed considerable economic power.
+It concluded that it was consistent with the letter, spirit and purpose of the provisions in section 3 to hold that they were not applicable to relations between insurers in the context of third party proceedings (para 23).
+Thus again, the CJEU invoked the policy of protecting the weaker party not to look behind the categories of persons expressly protected by section 3 but to ascertain whether that protection should be extended by analogy to persons who were not expressly protected.
+In Vorarlberger (para 42 above) a social security institution had provided benefits for the victim of a road traffic accident while she was unfit for work and, using its statutory rights of assignment of the victims claim, sought indemnification from the liability insurers of the driver who was allegedly responsible for the accident.
+The social security institution sought to invoke what are now articles 11(1)(b) and 13(2) of the Regulation to raise legal proceedings in the courts of its own domicile as assignee of the injured party against the insurers of the alleged wrongdoer.
+The CJEU rejected this attempt to extend the rules on jurisdiction derogating from the general principle that jurisdiction is generally based on the defendants domicile beyond the situations expressly envisaged in the Regulation ([2009] ECR I 8661, paras 36 39).
+It invoked the weaker party rationale of the section 3 protections as a reason for not extending the protections to persons who did not need to be protected, recognising that the heirs of an injured party ought to be able to benefit from the section 3 rules but holding that a social security institution could not (paras 40 44).
+In KABEG (para 47 above) an Austrian public law establishment (KABEG), which ran private hospitals, paid the salary of an employee while he was off work as a result of injuries incurred in a road traffic accident.
+Under Austrian law the employees compensation claim passed to his employers.
+Relying on what are now articles 11(1)(b) and 13(2) of the Regulation, KABEG raised legal proceedings in Austria, the member state of its domicile, against the French insurers of the driver of the car involved in the accident.
+KABEG in substance argued that it was the injured party which, under article 13(2), was allowed to raise proceedings in the courts of the member state of its domicile against a liability insurer.
+The defendants argued that the Austrian court did not have jurisdiction because section 3 did not apply to the employers which were not the weaker party.
+Again, it is clear that the claimant was seeking an extension of the protections of section 3 of the Regulation by including the employer, with a claim for reimbursement of the salary paid to the injured party, within the concept of injured party.
+That claim succeeded.
+Having rejected a case by case assessment (as I have shown), the CJEU held that pursuant to article 13(2) of the Regulation (para 35), employers to which the rights of their employees to compensation have passed may, as persons which have suffered damage and whatever their size and legal form, rely on the rules of special jurisdiction laid down in articles [10 12] of that Regulation.
+Finally, in Hofsoe v LVM Landwirtschaftlicher Versicherungsverein Mnster AG (Case C 106/17) [2018] IL Pr 184 (Hofsoe) Mr Hofsoe, whose professional activity inter alia consisted in recovering claims for damages from insurers and who took assignments of the claims of victims of road traffic accidents, sought unsuccessfully to extend the concept of injured party so as to invoke the jurisdiction of injured partys domicile under articles 11(1)(b) and 13(2) of the Regulation.
+In paras 37 42 the CJEU referred among others to KABEG, Vorarlberger, Group Josi and GIE, and acknowledged that the jurisdiction of the forum actoris had been extended under articles 11(1)(b) and 13(2) to include the heirs of an injured party and also the employer who continues to pay the salary of the injured party while he was on sick leave.
+But reasserting that the derogations from the principle of the defendants domicile must be exceptional in nature and be interpreted strictly, the CJEU held that the special rules of jurisdiction should not be extended to persons for whom the protection is not justified, such as professionals in the insurance sector.
+The CJEU (para 45) attached no significance to the fact that Mr Hofsoe carried on business on a small scale and reaffirmed its rejection of a case by case assessment because that risked legal uncertainty.
+In none of these cases where the CJEU has relied on the weaker party criterion to rule on applications to extend the scope of the section 3 protections beyond those parties who were clearly the policyholder, the insured, the beneficiary or the injured party, did the court call into question the entitlement of those expressly named persons to that protection by reason of their economic power.
+On the contrary, the CJEU has treated the exceptions to the entitlement of those persons as confined to the exceptions expressly stated in articles 15(5) and 16 of the Regulation.
+As I have said, the CJEU has repeatedly stated that derogations from the principle of the jurisdiction of the defendants domicile must be exceptional in nature and be interpreted strictly: Group Josi, paras 36, 49 50; Vorarlberger paras 36 39; Hofsoe, para 40.
+The jurisdiction of the forum actoris, which articles 11(1)(b) and 13(2) of the Regulation confer, is a derogation from the general principle of the jurisdiction of the defendants domicile.
+Article 14, which requires the insurer to bring proceedings only in the courts of the member state of the domicile of the insured, involves no such derogation but on the contrary supports the general principle.
+It is correct, as Gross LJ observed in para 111 of his judgment ([2019] 1
+Lloyds Rep 221), that the present case concerns a marine insurance risk, and that the policyholder and the Insurers would have been able to enter into a jurisdiction agreement under articles 15(5) and 16.
+But that does not exclude the protections of section 3 in the absence of such an agreement which is binding on the policyholder, the insured or the beneficiary.
+It is important to recall the opening words of article 15: The provisions of this section may be departed from only by an agreement.
+The clear implication is that in the absence of such an agreement, the policyholder, insured or beneficiary of an insurance contract falling within article 16 would come within the section 3 protections unless it contracted out of those provisions.
+There is no such agreement binding on the Bank in this case.
+In my view under the test laid down in CILFIT Srl v Ministero della Sanita (Case 283/81) [1982] ECR 3415, para 21, it is acte clair that a person which is correctly categorised as a policyholder, insured or beneficiary is entitled to the protection of section 3 of the Regulation, whatever its economic power relative to the insurer.
+It is not necessary to refer a question to the CJEU on this issue.
+The Bank as the named loss payee under the Policy is the beneficiary of the Policy.
+It is entitled to benefit from the protections of section 3, including the requirement under article 14 that it must be sued in the courts of the member state of its domicile.
+It follows that the Insurers cannot assert jurisdiction under article 7(2) of the Regulation in respect of the claims for misrepresentation.
+Further, issue 4, the question whether claims in unjust enrichment fall within article 7(2) does not arise.
+As a result, the Insurers fail in their appeal and the Bank succeeds in its appeal because the courts of England and Wales have no jurisdiction in respect of the Insurers claims against the Bank.
+Conclusion
+I would dismiss the Insurers appeal, allow the Banks appeal and declare that the High Court does not have jurisdiction over the Insurers claims against the Bank.
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+This appeal raises the issue as to whether a third country (ie non member state) national (TCN) otherwise benefiting from the derivative right to reside within the territory of the European Union pursuant to the principle in Ruiz Zambrano v Office national de l'emploi (Case C 34/09) EU:C:2011:124; [2012] QB 265 (Zambrano) enjoys enhanced protection against deportation, such that she can be deported in exceptional circumstances only.
+In Zambrano, the Court of Justice of the European Union (the CJEU) held that a TCN parent of a Union citizen child resident in Union territory who was dependent on the TCN parent, was entitled to a right of residence if expulsion of the TCN parent would require the child to leave the territory of the Union, thereby depriving the child of the genuine enjoyment of the substance of the childs Union citizenship rights.
+The principle extends to dependants who are not children, and applies even though the Union citizen has not exercised their right of free movement.
+The right of residence of the TCN is a derivative right, that is, one derived from the dependent Union citizen.
+It flows from article 20 of the Treaty on the Functioning of the European Union (article 20FEU) and was expressed in unqualified terms in Zambrano so as to be thought to prevent expulsion of the TCN parent in all circumstances.
+The Upper Tribunal (the UT) in its decision promulgated on 23 August 2013 proceeded on the basis that the Zambrano right of residence was unqualified, so that there was an absolute prohibition preventing deportation of the TCN parent without any consideration of proportionality even if that parent had committed serious crimes.
+The Secretary of State for the Home Department (the Secretary of State) appealed to the Court of Appeal against the determination of the UT which appeal was stayed to await the judgments of the CJEU in S v Secretary of State for the Home Department (Case C 304/14) EU:C:2016:674; [2017] QB 558 (CS) and Rendn Marn v Administracin del Estado (Case C 165/14) EU:C:2016:675; [2017] QB 495 (Marn).
+These judgments were delivered on 13 September 2016.
+By its judgments in CS and Marn the CJEU held that there was a limitation on the Zambrano derivative right of residence so that the right was not absolute.
+In CS at para 36 it stated that article 20FEU does not affect the possibility of member states relying on an exception linked, in particular, to upholding the requirements of public policy and safeguarding public security.
+In the same judgment at para 50 it stated However, in exceptional circumstances a member state may adopt an expulsion measure provided that it is founded on the personal conduct of that third country national, which must constitute a genuine, present and sufficiently serious threat adversely affecting one of the fundamental interests of the society of that member state, and that it is based on consideration of the various interests involved, matters which are for the national court to determine (emphasis added).
+Following the delivery of the judgments in CS and Marn the issues on appeal narrowed.
+The appellant accepted that the UT had erred in law in that it had wrongly concluded that protection against removal was absolute and there was no need to consider proportionality if it concluded that the deportation of a TCN parent would require a child who was a Union citizen to depart from the territory of the Union with the person being deported.
+On behalf of the Secretary of State it was submitted and the Court of Appeal [2018] EWCA Civ 85; [2018] WLR 81 held at para 67, that exceptional circumstances in para 50 of CS simply means that it is an exception to the general rule which general rule was that a person who enjoys the fundamental rights of an EU citizen cannot be compelled to leave the EU.
+The Court of Appeal added that It does not mean that, where the criteria set out in the proviso are satisfied, there is an additional hurdle that there must also be exceptional circumstances.
+The Court of Appeal remitted the case to the UT in order to carry out the proportionality exercise required by the decisions of the CJEU in CS and Marn.
+The appellant applied for permission to appeal to the Supreme Court on three grounds: a. Ground one: Whether the Court of Appeal was wrong to conclude that there was no need for exceptional circumstances to be established before a person relying on Zambrano could be deported. b. Ground two: Whether there was a sufficient evidential basis for finding that the deportation of the appellant was potentially lawful. c. Ground three: Whether the Court of Appeal erred by remitting rather than determining proportionality directly.
+On 4 July 2019 permission to appeal was granted on ground one only (whether exceptional circumstances need to be established before a Zambrano carer could be deported).
+That is the only question to be determined in this appeal.
+After the Court of Appeal delivered its judgment on 2 February 2018 the CJEU on 8 May 2018 delivered judgment in KA v Belgische Staat (Case C 82/16) EU:C:2018:308; [2018] 3 CMLR 28 (KA) which again addressed the test that should be applied as an exception to the Zambrano principle.
+This means that there are now three CJEU decisions addressing the sole issue in this appeal.
+It is a feature of this appeal that the decisions in Zambrano, Marn, CS and KA were all decisions of the CJEU (Grand Chamber).
+In this judgment I will refer to these decisions as the decisions of the CJEU to avoid repeating Grand Chamber on each occasion.
+II Factual background
+The appellant is a national of Jamaica who was born on 13 March 1975.
+She is now aged 45.
+Initially she entered the United Kingdom as a visitor on 2 August 2002 and was granted leave to enter until 23 August 2002.
+Further extensions were made permitting her to remain as a student until 28 February 2004.
+On 11 November 2003 the appellant married Marlon MacPherson, a person present and settled in the United Kingdom.
+Following her marriage and on 24 February 2004, she applied for leave to remain as the spouse of a person present and settled in the United Kingdom.
+She was granted leave until 2 March 2006.
+On 28 February 2006 she applied for indefinite leave to remain which was granted on 22 March 2006.
+The appellant committed a serious criminal offence, of supplying a class A drug (cocaine).
+On 5 October 2006, at Wood Green Crown Court the appellant was convicted of this offence and was sentenced to a period of imprisonment of two years and six months.
+The appellants evidence to the First tier Tribunal was that she decided to sell drugs as she needed additional funds because her grandmother had fallen seriously ill in Jamaica with heart failure, arthritis, and high blood pressure.
+On 20 November 2007 a deportation order in respect of the appellant was signed by the Secretary of State.
+On 24 September 2008 the appellant was detained, pending removal but her removal was subsequently deferred as she was pregnant.
+On 29 December 2008, the appellant gave birth to a boy, whom I will call D, who is now almost 12 years old.
+His father is Mr MacPherson.
+D is a British national and a citizen of the Union.
+The appellants evidence is that D has lived in the United Kingdom with her throughout his life.
+There was a history of unsuccessful challenges to the deportation order culminating on 7 January 2009 with an unsuccessful judicial review application following which the appellant failed to co operate with the authorities between 2009 and 2012, being listed as an absconder on 6 May 2009.
+On 20 February 2012, the appellant submitted an application for leave to remain outside the Immigration Rules.
+This was treated by the Secretary of State as an application to revoke her deportation order.
+On 29 August 2012, the Secretary of State refused the application.
+It is that decision which gave rise to a further right of appeal to the First tier Tribunal and is the subject of these proceedings.
+III The judgments of the Tribunals and the Court of Appeal
+(a) The First tier Tribunal
+On appeal to the First tier Tribunal before Judge Mitchell the appellant contended that her deportation would violate rights under article 8 of the European Convention on Human Rights (ECHR).
+The judgment of the CJEU in Zambrano which had been delivered on 8 March 2011 was referred to in the determination of Judge Mitchell promulgated on 7 December 2012.
+However, the appeal before Judge Mitchell proceeded purely on the basis that deportation would violate the article 8 ECHR rights of the appellant, D and of Mr MacPherson.
+In summary the evidence before Judge Mitchell was that by 22 February 2012 the appellant and her husband were living separately but had prior to the hearing reconciled so that they were back together again.
+The appellant stated that her husband played an important role in Ds life and that the deportation order requiring the appellant to leave the United Kingdom would also require D to leave with her so as to separate the appellant and her son from her husband who would remain in the United Kingdom.
+Judge Mitchell carried out an article 8 ECHR proportionality exercise stating at para 74 that the appellant was convicted of extremely serious offences.
+She is a foreign criminal.
+The scourge of drugs on society has been held many times to be utterly reprehensible.
+The decision of the Secretary of State to deport a foreign criminal who has received such a significant sentence for drugs offences is proportionate even taking into account the circumstances of the appellants family and herself.
+The judge dismissed the appellants appeal finding that deportation would not violate article 8 ECHR.
+(b) The Upper Tribunal
+The appeal before the UT proceeded not only on the basis that deportation would violate article 8 ECHR but also on the basis of the appellants derived right of residence under the Zambrano principle.
+The UT (which comprised UT Judges Jordan and Pitt) allowed the appeal with the determination being given by UT Judge Jordan.
+He held that the effective care of D was in the hands of the appellant so it followed that the appellants removal would be the effective cause of Ds removal to Jamaica.
+At para 19 he stated that the rights of Union citizens arising from Ruiz Zambrano are not derived from rights arising under the Citizens [Parliament and Council Directive 2004/38/EC] or the Immigration (European Economic Area) Regulations 2006 (2006 No 1003) transposing them into domestic law.
+They are a principle of European Union citizenship law developed by the Court of Justice in [Luxembourg].
+Importantly, they are not a principle of European human rights law operated on principles of proportionality.
+In other words, the court or tribunal is not deciding whether it [is] proportionate to remove the British child so that his best interests (as a primary consideration) are weighed against the public interest in favour of removing those who commit serious crimes.
+The prohibition against removal is absolute and prevents removal, notwithstanding the seriousness of the offence. (Emphasis added) On this basis the UT held that no question of proportionality arose as a matter of EU law and that the removal of the appellant was not permitted under the Zambrano principle.
+The UT then remade the decision and allowed the appeal against the Secretary of State.
+This meant that it was not necessary to consider proportionality, but for the sake of completeness the judge proceeded to do so in the context of article 8 ECHR.
+He stated at para 28 The appellant was sentenced to 30 months imprisonment.
+Whilst this is at the low end of sentences for supplying cocaine, this was nevertheless serious offending and the canker caused by the spread of drugs particularly those recognised as Class A creates a substantial public interest in removing those who are involved, if their removal is permissible.
+Ds best interests (those of a single individual) have to be weighed against the interests of society in its entirety.
+That interest includes, UT Judge Jordan held, following Wilson LJ in OH (Serbia) v Secretary of State for the Home Department [2008] EWCA Civ 694 the role of a deportation order as an expression of societys revulsion at serious crimes and in building public confidence in the treatment of foreign citizens who have committed serious crimes.
+On this basis UT Judge Jordan held that he was not persuaded that the appellants removal together with D would be disproportionate, notwithstanding that the best interests of D was a primary consideration.
+I would add as a footnote to the quotation from OH (Serbia) v Secretary of State for the Home Department that in Ali v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799, at para 70 Lord Wilson regretted his reference to societys revulsion at serious crimes as being too emotive a concept to figure in this analysis.
+However, he maintained the substance of the point made by stating that Laws serve society more effectively if they carry public support.
+He continued that Unless it lacks rational foundation (in which case the courts should not pander to it), the very fact of public concern about an area of the law, subjective though that is, can in my view add to a courts objective analysis of where the public interest lies: in this context it can strengthen the case for concluding that interference with a persons rights under article 8 by reason of his deportation is justified by a pressing social need.
+(c) The Court of Appeal
+The issues before the Court of Appeal (which comprised Underhill, Lindblom, Singh LJJ) had become narrower because of the CJEUs determination in CS and Marn that the prohibition against removal was not absolute so that it was conceded by the appellant that there were errors of law made by the UT.
+The Secretary of State submitted that the case should be remitted to the UT for redetermination, after considering any further evidence that might be necessary.
+The appellant submitted that the errors of law were not material as the decision of the UT would inevitably have been the same so that the appeal should be dismissed.
+The appellants submission raised the issue as to whether the test that should be applied in the light of the decisions of the CJEU in Marn and CS included a requirement of exceptional circumstances to justify the appellants deportation.
+At para 47 Singh LJ giving the judgment of the court, identified all the remaining issues before the Court of Appeal as being: (1) Should this court perform the proportionality exercise itself or should it remit the case to the UT? (2) What is the correct test that should be applied in the light of the decisions of the CJEU in Rendn Marn and (CS)? (3) What is the current status and effect of the decision in R v Bouchereau (Case C 30/77) EU:C:1977:172; [1978] QB 732? (4) What is the relevance, if any, of the Rehabilitation of Offenders Act 1974?
+Singh LJ having referred to In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1911, rejected the appellants submission that the Court of Appeal should perform the proportionality exercise itself.
+At paras 50 52 Singh LJ identified three difficulties with the appellants submission, none of which could be subject to any sensible challenge particularly given that at no previous stage had the threat which the appellant posed to the United Kingdoms public policy or public security been considered in accordance with the proportionality test set out by the CJEU in Marn and CS.
+It is sufficient to refer solely to the third difficulty which Singh LJ identified.
+At para 52 he stated This leads me to my third point.
+It is that the question of proportionality should be addressed in the present case only after full consideration has been given to the issues of fact and, in particular, up to date information should be placed before the UT.
+One reason for this in the present case is that it concerns the potential impact of deportation on a young child, D. Since the best interests of a child must always be a primary consideration for the court, it is important that the UT should have available to it the most up to date information about the likely impact of Ds mothers deportation on him.
+Singh LJ held that the case should be remitted to the UT for redetermination, but proceeded to address the remaining issues to provide guidance to the UT as to how it should approach the case on remittal.
+In relation to the correct test which should be applied in the light of the decisions of the CJEU in Marn and CS Singh LJ conducted a careful and comprehensive analysis of both of those judgments together with the joint opinion of the Advocate General (M Szpunar) in CS and Marn (p 500).
+The Advocate General made the following recommendation to the CJEU in the case of CS (at point 177 of his opinion): , I propose that the courts answer should be that it is, in principle, contrary to article 20FEU for a member state to expel from its territory to a non member state a third country national who is the parent of a child who is a national of that member state and of whom the parent has sole care and custody, when to do so would deprive the child who is a citizen of the Union of genuine enjoyment of a substance of his or her rights as a in exceptional citizen of circumstances, a member state may adopt such a measure, provided that it: observes the principle of proportionality and is based on the personal conduct of the foreign national, which must constitute a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, and is based on an imperative reason relating to public security. (Emphasis added) the Union.
+Nevertheless, As is apparent from the words to which I have added emphasis, the Advocate Generals recommendation included the phrase exceptional circumstances and a requirement of an imperative reason confined solely to public security so as to exclude an imperative reason relating to public policy.
+Relying on that recommendation and the CJEUs reference to exceptional circumstances in para 50 of its judgment in CS, Mr Southey QC on behalf of the appellant sought to establish an enhanced level of protection for carers by restricting the exception to the Zambrano principle.
+Singh LJs conclusions at paras 66 67 were as follows: 66.
+Mr Blundell [on behalf of the Secretary of State] invites this court to attach significance to the fact that the last phrase in that passage (and is based on an imperative reason relating to public security) did not find its way into the judgments of the CJEU.
+He submits that the CJEU did not adopt that part of the recommendation made by the Advocate General.
+He also points out that the language used by the Advocate General is the language of (Directive 2004/38/EC), in particular article 28(3).
+He submits that it imposes a higher test than the test that was eventually adopted by the CJEU in the context of articles 20 21FEU.
+I agree with those submissions by Mr Blundell. 67.
+Mr Southey emphasises the use of the phrase exceptional circumstances in the opinion of the Advocate General, at para 177, and in the judgment of the CJEU in (CS), at para 50.
+I do not attach the significance to that phrase which Mr Southey submits it has.
+In my view, it does not import an additional requirement which the state must satisfy on top of what follows; rather the phrase is a helpful summary of what follows (provided . ).
+In other words exceptional circumstances simply means that it is an exception to the general rule, which is that a person who enjoys the fundamental rights of an EU citizen cannot be compelled to leave the EU.
+It does not mean that, where the criteria set out in the proviso are satisfied, there is an additional hurdle that there must also be exceptional circumstances.
+Accordingly, the Court of Appeal held that the correct test that should be applied did not require exceptional circumstances to be established before someone in the appellants position could be deported.
+Rather the reference to exceptional circumstances in the relevant case law of the CJEU was merely a reference to the fact that deportation of someone in the appellants position is a departure from the general rule that a person who enjoys the fundamental rights of an EU citizen cannot be compelled to leave the territory of the EU.
+Singh LJ then addressed at paras 68 86 the current status and effect of the decision of the European Court of Justice in R v Bouchereau.
+That decision envisages that past conduct alone which has caused public revulsion and is therefore a threat to the requirements of public policy may be sufficient to justify deportation without there necessarily being any clear propensity on behalf of the individual to act in the same way in the future.
+Singh LJ concluded that, subject to various limitations this remained good law.
+That conclusion has not been appealed to this court.
+In relation to the final issue as to the relevance of the Rehabilitation of Offenders Act 1974 Mr Southey conceded, and for the reasons set out at paras 87 90 Singh LJ held, that the Act had no direct application in the present context.
+The outcome in the Court of Appeal was that the Secretary of States appeal was allowed and the case was remitted to the UT for redetermination on the merits.
+IV The impact on this appeal of the United Kingdoms withdrawal from
+the EU
+Section 2(1) of the European Communities Act 1972 (the 1972 Act) provides: All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression enforceable EU right and similar expressions shall be read as referring to one to which this subsection applies.
+Section 1 of the European Union (Withdrawal) Act 2018 (the 2018 Act) repealed the 1972 Act on exit day which is defined by section 20 as 11pm on 31 January 2020.
+However, exit day is followed by an implementation period (IP) which ends on the IP completion day defined in section 39 of the European Union (Withdrawal Agreement) Act 2020 (the 2020 Act) as 31 December 2020 at 11pm.
+During this period the 1972 Act continues to have effect pursuant to section 1A of the 2018 Act, as amended by the 2020 Act.
+The Charter of Fundamental Rights of the European Union (the Charter) also continues to have effect during this period: see Part Four of the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (OJ 2019, C384 l, p 1) and section 1A(3) of the 2018 Act.
+As to the position after IP completion day the current position is that the Immigration (European Economic Area) Regulation 2016, and relevant provisions of the FEU Treaty to the extent that they are not implemented in domestic law, would continue to have effect as retained EU law pursuant to sections 2 and 4 of the 2018 Act.
+However, this is subject to the Immigration and Social Security Co ordination (EU Withdrawal) Act 2020 as well as secondary legislation made under it.
+This Act provides for repeal of the main retained EU law relating to free movement.
+The present position is that the United Kingdoms withdrawal from the EU has no impact on this appeal but the legal principles to be applied may change after 31 December 2020 at 11pm.
+V Legal landscape
+(a) Union citizenship and the right to move and reside freely
+Article 20(1)FEU establishes Union citizenship and provides that Every person holding the nationality of a member state is a citizen of the Union.
+Under article 20(2)(a)FEU, citizens of the Union have the right to move and reside freely within the territory of the member states.
+Article 21(1)FEU also provides that Every citizen of the Union shall have the right to move and reside freely within the territory of the member states.
+This right is not absolute but is subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.
+The significance of citizenship of the Union is apparent from Zambrano at para 41 and KA at para 47 in that citizenship of the European Union is intended to be the fundamental status of nationals of the member states.
+The CJEU confirmed at para 48 of KA that Union citizenship conferred a primary and individual right to move and reside freely within the territory of the member states but continued that this was not absolute as it was subject to the limitations and restrictions laid down by the Treaty and the measures adopted for their implementation.
+(b) Parliament and Council Directive 2004/38/EC
+On 29 April 2004 the Parliament and Council of the European Union adopted Parliament and Council Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of member states (OJ 2004 L158, p 77) (the Directive).
+The Directive lays down the conditions surrounding the exercise of the right of free movement and residence within EU territory, the right of permanent residence and the limits placed on those rights.
+Under the rubric of Beneficiaries article 3(1) provides that the Directive applies to all Union citizens who move to or reside in a member state (the host member state) other than that of which they are a national and to their family members who accompany or join them.
+Accordingly, the Directive does not apply in this case as the only Union citizen is D and he has not moved to or resided in a member state other than that of which he is a national, see Zambrano at para 39, CS at para 22 and Marn at para 40.
+In so far as D is not covered by the concept of beneficiary for the purposes of article 3(1) of the Directive, a member of his family is not covered by that concept either, given that the rights conferred by that Directive on the family members of a beneficiary of the Directive are not autonomous rights of those family members, but derived rights, acquired through their status as members of the beneficiarys family: see McCarthy v Secretary of State for the Home Department (Case C 434/09) EU:C:2011:277; [2011] ECR I 3375; [2011] All ER (EC) 729, para 42.
+However, both articles 27 and 28 of the Directive are relevant as the CJEU has used some but not all of the language in those articles in relation to the limitation on the Zambrano derived right of residence under article 20FEU.
+Articles 27 and 28 are in Chapter VI of the Directive under the rubric Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health.
+Article 27 of the Directive under the rubric General principles and in so far as relevant provides: 1.
+Subject to the provisions of this Chapter, member states may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health.
+These grounds shall not be invoked to serve economic ends. 2.
+Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned.
+Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
+The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
+Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted. (Emphasis added) The CJEU has incorporated into the limitation on the Zambrano derived right of residence many parts of article 27, including those parts to which I have added emphasis.
+In relation to the grounds of public policy and public security see Marn at para 81, CS at para 36 and KA at para 90.
+In relation to the requirement to comply with the principle of proportionality see Marn at para 85, CS at para 41 and KA at paras 93 and 97.
+In relation to the requirement that the conduct must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society see Marn at para 84, CS at para 40 and KA at para 92.
+Article 28(1) of the Directive under the rubric Protection against expulsion provides Before taking an expulsion decision on grounds of public policy or public security, the host member state shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host member state and the extent of his/her links with the country of origin.
+Again, the CJEU has incorporated into the limitation on the Zambrano derived right of residence the language of article 28(1).
+In relation to the requirement to take into account considerations such as how long the individual concerned has resided on its territory, his/her age, state of health (etc) see Marn at para 86, CS at para 42 and KA at para 94.
+As expected given the context of both a crime committed by the TCN parent and the interests of children, the list of factors identified by the CJEU as in particular to be taken into account include factors not mentioned in article 28(1), such as the nature and gravity of the offence committed, the extent to which the person concerned is currently a danger to society, the age of the children at issue and their state of health, as well as their economic and family situation.
+The CJEU also referred to the legality of the residence of the TCN parent as a relevant factor, which is not specifically mentioned in article 28(1).
+Article 28(2) and (3) provides: 2.
+The host member state may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security. 3.
+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: (a) have resided in the host member state for the previous ten years; or (b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989 [the UNCRC].
+The CJEU has not incorporated into the limitation on the Zambrano derived right of residence the parts of article 28(2) and (3) to which I have added emphasis.
+However, in relation to the UNCRC the Zambrano derived right of residence is within the ambit of EU law so that article 24(2) of the Charter applies which provides that In all actions relating to children, whether taken by public authorities or private institutions, the childs best interests must be a primary consideration.
+Furthermore, article 7 of the Charter which provides for the right to respect for private and family life must be read in conjunction with the obligation to take into consideration the childs best interests, recognised in article 24(2) of the Charter, see Marn at paras 66 and 81.
+In considering article 28(3) it should be recalled that the Directive does not
+apply in this case.
+However even if the Directive did apply D is not the individual subject to the expulsion decision so that article 28(3) would not be engaged.
+It is correct that the effective result of the expulsion of Ds Zambrano carer is that D also is expelled.
+However, the consequences are different as between D and a minor expelled under article 28(3).
+D is entitled to return to the territory of the Union at any time whilst a minor expelled under article 28(3) is restricted to submitting an application under article 32 after a reasonable period, depending on the circumstances, and in any event after three years from enforcement of the final exclusion order by putting forward arguments to establish that there has been a material change in the circumstances which justified the decision ordering their exclusion.
+It is then for the member state concerned to reach a decision on this application.
+Furthermore, a minor expelled under article 28(3) has no right of entry to the territory of the member state concerned while their application under article 32 is being considered. (c)
+The Directive was implemented into domestic law by the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) (the 2006 Regulations).
+Those Regulations were amended on 16 July 2012 to give effect to a number of derivative rights of residence in EU law and to include an associated power of removal for persons enjoying such rights, where removal would be conducive to the public good.
+The 2006 Regulations were further amended on 8 November 2012 to make wider provision reflecting CJEU case law, as then embodied in the Zambrano decision, based, as it was, on article 20FEU and to apply the conducive to the public good removal provision to such persons.
+The 2006 Regulations have since been replaced by new Regulations made in 2016 (the 2016 Regulations).
+However, it was the 2006 Regulations that applied at the time of the impugned decision (see paragraph 5 of Schedule 6 to the 2016 Regulations).
+The 2006 Regulations must, to the extent possible, be interpreted to ensure conformity with article 20FEU.
+If, in its case law since the Zambrano decision, the CJEU has interpreted article 20FEU as requiring exceptional circumstances as an additional Implementation of the Directive into domestic law requirement, then national courts must strive to interpret the 2006 Regulations on that basis in accordance with the Marleasing principle, see Marleasing SA v La Comercial Internacional de Alimentacin SA (Case C 106/89) EU:C:1990:395; [1990] ECR I 4135; [1992] 1 CMLR 305, para 13 and Pfeiffer v Deutsches Rotes Kreuz Kreisverband Waldshut eV (Joined Cases C 397/01 and C 403/01) EU:C:2004:584; [2005] ICR 1307; [2004] ECR I 8835; [2005] 1 CMLR 44, para 115.
+So, the focus of this appeal returns to the decisions of the CJEU in order to determine what test is to be applied in order to accord with CJEUs case law.
+(d) The Zambrano right of residence
+The CJEUs ruling in Zambrano is the landmark decision.
+Mr Ruiz Zambrano and his wife, Mrs Moreno Lopez, were both nationals of Colombia.
+While they were living in Belgium Mrs Moreno Lopez gave birth to two children, who acquired Belgian nationality by operation of Belgian law.
+Accordingly, both children were also citizens of the EU and their parents were TCN parents.
+The two children did not at any stage exercise their right to move freely within the EU but remained in Belgium with their parents.
+Mr Zambrano applied for unemployment benefit.
+That application was rejected on the ground that, since he had never held a work permit in Belgium, he did not have the requisite qualifying period as required by national legislation governing the residence and employment of foreign workers.
+The Employment Tribunal in Belgium made a reference to the CJEU which held that article 20FEU is to be interpreted as precluding a member state from refusing a TCN on whom his minor children, who are European Union citizens, are dependent, a right of residence in the member state of residence and nationality of those children, and from refusing to grant a work permit to that TCN, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.
+(e) The Zambrano right of residence is a derivative right
+As is apparent from para 50 of KA the Treaty provisions on citizenship do not confer any autonomous right on third country nationals.
+Any rights conferred on third country nationals are not autonomous rights of those nationals but rights derived from those enjoyed by a Union citizen.
+The purpose and justification of those derived rights are based on the fact that a refusal to allow them would be such as to interfere, in particular, with a Union citizens freedom of movement: see also CS at para 28. (f) The consideration of a Zambrano right of residence falls within the ambit of
+European Union law
+Consideration of whether there is a Zambrano derived right of residence falls within the ambit of EU law.
+Accordingly, account must be taken of the right to respect for private and family life, as laid down in article 7 of the Charter, an article which, must be read in conjunction with the obligation to take into consideration the childs best interests, recognised in article 24(2) of the Charter, see Marn at para 81. (g) The very specific situations giving rise to the Zambrano derived right of
+residence
+The very specific situations giving rise to this derived right of residence are set out in Zambrano at paras 43 and 44, in Chavez Vilchez v Raad van bestuur van de Sociale verzekeringsbank (Case C 133/15) EU:C:2017:354; [2018] QB 103; [2017] 3 CMLR 35 at para 63 and most recently in KA at paras 51 and 52 as follows: 51. , a right of residence must nevertheless be granted to a third country national who is a family member of that Union citizen, since the effectiveness of Union citizenship would otherwise be undermined, if, as a consequence of refusal of such a right, that citizen would be obliged in practice to leave the territory of the EU as a whole, thus depriving him of the genuine enjoyment of the substance of the rights conferred by that status 52.
+However, a refusal to grant a right of residence to a third country national is liable to undermine the effectiveness of Union citizenship only if there exists, between that third country national and the Union citizen who is a family member, a relationship of dependency of such a nature that it would lead to the Union citizen being compelled to accompany the third country national concerned and to leave the territory of the EU
+as a whole
+The requirement of being compelled to leave the territory of the EU as a whole as opposed to being compelled to leave the territory of the member state was specifically referred to in the decision of the CJEU in Dereci v Bundesministerium fr Inneres (Case C 256/11) EU:C:2011:734; [2011] ECR I 11315; [2012] All ER (EC) 373; [2012] 1 CMLR 45.
+The CJEU stated at para 66 of its judgment that the criterion refers to situations in which the Union citizen has, in fact to leave not only the territory of the member state of which he is a national but also the territory of the Union as a whole.
+(h) The first question to be addressed by the national court
+On this basis the first question to be addressed in determining whether there is a Zambrano derived right of residence is whether there is a relationship of dependency of such a nature that it would lead to the Union citizen being compelled to accompany the TCN concerned and to leave the territory of the Union as a whole.
+In determining that question the CJEU set out at para 71 of KA the factors to be taken into account.
+The CJEU stated: More particularly, in order to assess the risk that a particular child, who is a Union citizen, might be compelled to leave the territory of the EU and thereby be deprived of the genuine enjoyment of the substance of the rights conferred on him by article 20 TFEU if the childs third country national parent were to be refused a right of residence in the member state concerned, it is important to determine, in each case at issue in the main proceedings, which parent is the primary carer of the child and whether there is in fact a relationship of dependency between the child and the third country national parent.
+As part of that assessment, the competent authorities must take account of the right to respect for family life, as stated in article 7 of the Charter, that article requiring to be read in conjunction with the obligation to take into consideration the best interests of the child, recognised in article 24(2) of the Charter (Chavez Vilchez [2017] 3 CMLR 35, para 70). (i) The second question to be addressed by the national court
+In CS at para 40 the CJEU stated that an expulsion decision founded on the
+existence of a genuine, present and sufficiently serious threat to the requirements of public policy or of public security, in view of the criminal offences committed by a TCN who is the sole carer of children who are Union citizens, could be consistent with EU law.
+At para 46 it stated that the national court has the task of examining what, in the TCNs conduct or in the offence that she committed, constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society or of the host member state, which may justify, on the ground of protecting the requirements of public policy or public security, an order deporting her from the United Kingdom.
+Accordingly, the second question to be addressed is whether there is such a threat.
+It is clear from CS at para 41 and Marn at para 85 that the existence of such a threat cannot be drawn automatically on the basis solely of the criminal record of the person concerned.
+Furthermore, article 20FEU must be interpreted as precluding national legislation which requires a TCN parent of minor children who are Union citizens in his sole care to be automatically refused the grant of a residence permit on the sole ground that he has a criminal record, where that refusal has the consequence of requiring those children to leave the territory of the European Union.
+Rather it is incumbent upon the national court to assess (i) the extent to which the TCN parents criminal conducts is a danger to society and (ii) any consequences which such conduct might have for the requirements of public policy or public security of the member state concerned, see Marn at para 87 and CS at para 47.
+(j) The third question to be addressed by the national court
+If there is such a threat then the national court carries out an exercise balancing, on the one hand, the nature and degree of that threat which leads to the legitimate aim of safeguarding public order or public security.
+On the other hand, the national court has to take account of the fundamental rights whose observance the CJEU ensures, in particular the right to respect for private and family life, as laid down in article 7 of the Charter and to ensure that the principle of proportionality is observed.
+In a case involving children account is to be taken of the childs best interests when weighing up the interests involved.
+Particular attention must be paid to his age, his situation in the member state concerned and the extent to which he is dependent on the parent: see CS at paras 48 49.
+VI Whether exceptional circumstances need to be established before a Zambrano carer can be deported
+(a) The parties submissions
+On behalf of the appellant Mr Southey submitted that the use of the phrase exceptional circumstances demonstrates the weight to be attached to the interests of the Zambrano child when conducting a proportionality balancing exercise.
+He also submitted that the use of the phrase exceptional circumstances in CS at para 50 cannot merely connote a departure from the norm but rather that it implies that the interests of the Zambrano child must carry great weight that can only be outweighed by particularly compelling reasons.
+On behalf of the Secretary of State Mr Blundell relied on the CJEU decisions in CS, Marn and KA in order to submit that the imperative grounds test does not apply, and nor does any broader exceptional circumstances test.
+He submitted that on a proper textual analysis of the judgment in CS the single use of the phrase exceptional circumstances was to be read as an exception to the usual application of the Zambrano principle.
+(b) Rejection by the CJEU of imperative grounds of public security
+Advocate General M Szpunar in his opinion in CS proposed the adoption of enhanced protection based on imperative grounds relating to public security.
+At point 168 he stated that In the present case, given that the minor child who is a citizen of the Union might, as a consequence of the expulsion of his mother, temporarily have to leave the territory of the European Union altogether, it is appropriate, to my mind, that he should be accorded the enhanced protection implied by the term imperative grounds of public security.
+Accordingly, only imperative grounds of public security are capable of justifying the adoption of an expulsion order against (CS) if, as a consequence, her child would have to follow her. (Emphasis added) In this paragraph he did not propose the adoption of the phrase exceptional circumstances.
+At point 177 Advocate General M Szpunar proposed that the courts answer in CS should be that it is, in principle, contrary to article 20FEU for a member state to expel from its territory to a non member state a third country national who is the parent of a child who is a national of that member state and of whom the parent has sole care and custody, when to do so would deprive the child who is a citizen of the Union of genuine enjoyment of the substance of his or her rights as a citizen of the Union.
+He went on to define a proposed limitation on the derived right of residence in terms that used the phrases exceptional circumstances and based on an imperative reason relating to public security.
+He proposed that Nevertheless, in exceptional circumstances, a member state may adopt such a measure, provided that it: observes the principle of proportionality and is based on the personal conduct of the foreign national, which must constitute a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, and is based on an imperative reason relating to public security. (Emphasis added)
+At para 36 of the judgment in CS the CJEU recognised an exception to the Zambrano principle linked, in particular, to upholding the requirements of public policy and safeguarding public security.
+That is entirely inconsistent with the test of imperative grounds in article 28(3) of the Directive which is only linked to public security.
+The rejection of the test of imperative grounds is also apparent from para 40 which requires the expulsion decision to be founded on the existence of a genuine, present and sufficiently serious threat.
+That is not a test of imperative grounds.
+Again, in that paragraph it is made clear that this is a threat to either the requirements of public policy or of public security.
+I consider that it is clear that the CJEU rejected the proposal of enhanced protection based on imperative grounds of public security.
+Two questions remain.
+The first is whether by using the phrase exceptional circumstances Advocate General M Szpunar was proposing that a Zambrano carer should enjoy enhanced protection against deportation, such that she can be deported in exceptional circumstances only.
+In view of his associated proposal that there should be an imperative reason relating to public security I am prepared to proceed, without deciding the point, on the basis that he was proposing an additional requirement of exceptional circumstances.
+On the basis of that assumed answer to the first question the second remaining question is whether the CJEU adopted Advocate General M Szpunars proposal of exceptional circumstances.
+(c) Textual analysis of the judgment in CS
+CJEU did not adopt the proposal in relation to exceptional circumstances.
+In CS the applicant, a TCN, married a British national and was granted indefinite leave to remain in the United Kingdom where she had a child for whom she was the sole carer.
+She was convicted of a criminal offence in the United Kingdom and sentenced to a term of imprisonment whilst her child was still very young.
+The Secretary of State rejected the applicants asylum application and ordered her deportation after she had been released from prison, in reliance on, inter alia, section 32(5) of the UK Borders Act 2007 under which deportation would always be ordered in respect of a TCN who was convicted of an offence of a certain gravity, unless that order breached the offenders rights under, inter alia, the European Union treaties.
+The applicants appeal was allowed by the First tier I consider that a textual analysis of the judgment in CS makes it clear that the Tribunal on the ground that her deportation would lead to, inter alia, a breach of her childs right as a Union citizen to move and reside within the European Union under article 20FEU in that, if the applicant were deported, her child would also have to leave the European Union.
+On the Secretary of States appeal, the UT referred to the CJEU for a preliminary ruling the question whether article 20FEU precluded the national legislation.
+The CJEU held that a decision to expel a TCN who was the sole carer of a Union citizen child on the ground of public policy or public security could not be made automatically on the sole basis of the criminal record of the person concerned.
+The CJEU went on to consider the basis upon which such an expulsion decision could be made.
+In paras 34 50 of the judgment and under the heading The possibility of limiting a derived right of residence flowing from article 20FEU the CJEU set out its analysis of the limitation on the Zambrano right of residence.
+At para 36 the CJEU stated as follows: It should be pointed out that article 20FEU does not affect the possibility of member states relying on an exception linked, in particular, to upholding the requirements of public policy and safeguarding public security. (Emphasis added) In other words, conduct which is potentially contrary to the interests of public policy and public security in most cases, the commission of a criminal offence was capable, in principle, of justifying an exception to the ordinary general rule (namely, that a Zambrano carer cannot be expelled where to do so would lead to the departure of the dependent EU citizen from the territory of the Union).
+As I have emphasised the CJEU specifically referred to reliance on an exception, rather than the existence of exceptional circumstances.
+At para 37 in relation to the exception the CJEU relying on its case law stated that the concepts of public policy and public security must be interpreted strictly.
+At para 38 the CJEU considered the exception as linked to upholding the requirements of public policy identifying that in addition to the disturbance of the social order which any infringement of the law involves there must exist a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
+At para 39 the CJEU analysed its case law in relation to the public security exception.
+At para 40 the CJEU set out the test as being whether the expulsion decision is founded on the existence of a genuine, present and sufficiently serious threat to the requirements of public policy or of public security.
+Then at paras 41 42 and 46 49, the CJEU set out in detail the particular factors which have to be considered when deciding whether that test was satisfied.
+I consider that para 50 provides a summary of what is contained in the preceding paragraphs so that the reference to exceptional circumstances can only sensibly be read in the context of what comes before.
+When seen against the background of the analysis beginning at para 34, it is clear that the CJEU did not add any additional criterion through the use of the words exceptional circumstances.
+On the contrary, and as the Court of Appeal correctly decided, it was simply explaining that, in the prescribed circumstances, an exception could be made to the general rule that a Zambrano carer could not be compelled to leave the territory of the Union.
+It was not stating that certain undefined exceptional circumstances had first to be demonstrated.
+(d) The judgments in Marn and KA
+In Marn under the same heading as used in CS (The possibility of limiting a derived right of residence flowing from article 20FEU) the CJEU at paras 81 88 carried out the same analysis as in CS as to the exception to the Zambrano derived right of residence, specifying the test to be applied and the factors to be taken into account.
+In that respect the analysis of the CJEU in Marn is identical to the analysis in CS.
+Furthermore, the test in para 84 of Marn is in the same terms as the test in para 40 of CS.
+In paras 85 and 86 in Marn the CJEU set out the matters to be taken into account.
+There is no reference in Marn to the phrase exceptional circumstances.
+The CJEU also took the same approach in KA, at paras 85 97.
+In that case, the Belgian authorities refused to consider applications for residence permits from the TCN parents of Belgian children on the grounds that the applicant was subject to an entry ban.
+Having dealt with the circumstances in which a Zambrano right could come into being at paras 63 76, the CJEU repeated at para 90 that article 20 TFEU did not affect the possibility of member states relying on an exception linked to upholding the requirements of public policy and safeguarding public security.
+The CJEU went on, at paras 90 97, to repeat the factors set out in CS and Marn which should be taken into account when that test is being applied.
+At para 92 it stated: , it must be held that, where the refusal of a right of residence is founded on the existence of a genuine, present and sufficiently serious threat to the requirements of public policy or public security, in view of, inter alia, criminal offences committed by a third country national, such a refusal is compatible with EU law even if its effect is that the Union citizen who is a family member of that third country national is compelled to leave the territory of the EU Again, this is a repetition of the test in para 84 of Marn and in para 40 of CS.
+Nowhere in its detailed analysis in KA does the CJEU state or even imply that there is an additional hurdle that there must also be exceptional circumstances.
+On three occasions, the CJEU has set out what must be taken into account when the deportation of a Zambrano carer is being considered.
+Not once has it stated that an imperative grounds test applies, nor has it stated that there is an additional hurdle that there must also be exceptional circumstances.
+I consider that it is inconceivable that the CJEU would have omitted to mention this on three occasions if such a test applied.
+VII Disposal of the appeal
+For my part I consider that the Court of Appeals clearly reasoned conclusion cannot be faulted and was plainly right.
+The phrase exceptional circumstances simply means that it is an exception to the general rule that a person who enjoys the fundamental rights of an EU citizen cannot be compelled to leave the territory of the EU.
+The phrase does not import an additional hurdle.
+I would dismiss the appeal and would, as a consequence maintain the order of the Court of Appeal remitting the case to the UT for redetermination on the merits.
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+This appeal concerns the procedure for collective proceedings introduced by amendment to the Competition Act 1998 (the Act) for the purpose of enabling small businesses and consumers more easily to bring claims for what may loosely be described as anti competitive conduct in breach of the provisions of the Act.
+Where the harmful impact of such conduct affects consumers, it may typically cause damage to very large classes of claimants.
+Proof of breach, causation and loss is likely to involve very difficult and expensive forensic work, both in terms of the assembly of evidence and the analysis of its economic effect.
+Viewed from the perspective of an individual consumer, the likely disparity between the cost and effort involved in bringing such a claim and the monetary amount of the consumers individual loss, coupled with the much greater litigation resources likely to be available to the alleged wrongdoer, means that it will rarely, if ever, be a wise or proportionate use of limited resources for the consumer to litigate alone.
+The procedure for collective proceedings introduced by the Act applies to claims by two or more persons for damages, money or an injunction in respect of a breach of specified provisions of statutory competition law: see sections 47A(2) and 47B(1) of the Act.
+It enables whole classes of consumers to vindicate their rights to compensation and the large cost of the necessary litigation to be funded, before an expert tribunal, the Competition Appeal Tribunal (CAT), which is given exclusive jurisdiction over collective proceedings.
+The prospect that the rights of consumers can be vindicated in that way also serves to act as a disincentive to unlawful anti competitive behaviour of a type likely to harm consumers generally.
+But collective proceedings may not proceed beyond the issue and service of a claim form without the permission of the CAT in the form of certification by a Collective Proceedings Order (CPO) under section 47B of the Act.
+At issue in the appeal are the legal requirements for certification.
+There are (at least for present purposes) three key features of collective proceedings.
+The first is that claims by any number of claimants may be pursued on their behalf by a single representative who may, but need not, be a member of the class.
+The claims need not be identical, and they need not all be against all the defendants, but they must all raise the same, similar or related issues of fact or law.
+Secondly, the remedy sought may, but need not always, be the award of what are called aggregate damages.
+This type of damages provides just compensation for the loss suffered by the claimant class as a whole, but the amount need not be computed by reference to an assessment of the amount of damages recoverable by each member of the class individually.
+Thirdly, the CAT has a discretion as to how aggregate damages (if recovered) are to be distributed among members of the class.
+Any unclaimed residue of an aggregate award is to be given to a charity specified by the Lord Chancellor, or used to meet the litigation costs and expenses of the representative.
+The CAT is given an important screening or gatekeeping role over the pursuit of collective proceedings.
+First, collective proceedings may not be pursued beyond the issue and service of a claim form without the CATs permission, in the form of a CPO, for which the representative must apply.
+The obtaining of a CPO is called certification.
+Secondly, collective proceedings may be terminated by the CAT at any stage by the revocation of that CPO.
+Thirdly, the CAT may accede to an application by one or more defendants to strike out collective proceedings if they disclose no reasonable cause of action (or are otherwise abusive) or to an application for defendants summary judgment, just as in any ordinary civil proceedings.
+The process of certification requires the CAT to be satisfied as to two main criteria, in relation to any particular collective proceedings.
+First, it must be just and reasonable for the person seeking to act as representative to be authorised to do so.
+Secondly, the claims must be eligible for inclusion in collective proceedings.
+This means that they must all raise the same, similar or related issues of fact or law and be suitable to be brought in collective proceedings.
+In the present case the CAT decided that the claims were not suitable to be brought in collective proceedings and therefore refused a CPO.
+The representative, Mr Walter Merricks, appealed successfully to the Court of Appeal.
+The defendants, companies in the Mastercard group, appeal to this court, seeking to reinstate the decision of the CAT.
+This is the first collective proceedings case of this kind to reach this court, or the Court of Appeal, and it raises important questions about the legal framework within which the CAT should exercise its undoubted expertise in granting or refusing certification.
+The Facts
+The appellant defendants (collectively Mastercard) are three members of the Mastercard group of companies, the first two of which are registered in Delaware, USA, and the third in Belgium.
+At the relevant time Mastercard operated the well known Mastercard payment card scheme, by the use of which consumers with banking facilities are able to purchase goods and services from retailers otherwise than by the use of cash or cheques.
+The scheme includes both credit and debit cards and operates as a four party scheme in accordance with the diagram shown below.
+The consumer is the card holder.
+The retailer is called the merchant.
+The consumers bank issues the card used by the consumer to make payment and is therefore called the issuer.
+The retailers bank is called the acquirer.
+The scheme rules, laid down by Mastercard, require both the issuer and the acquirer to pay fees to Mastercard for being licensed to use the scheme.
+But the rules also provide for an interchange fee (IF) to be paid by the acquirer to the issuer for each transaction paid by the use of a Mastercard, which is debited from the payment made by the issuer to the acquirer on the card holders behalf.
+The acquirer then credits the net amount, less its own fee, to the account of the merchant.
+The combined deduction of the IF and the acquirers own fee is called the merchant service charge (MSC).
+Thus it is common ground that the acquirer passes on the whole of the IF to the merchant.
+This may be illustrated by a notional sale of goods (or services) by the merchant to the card holder for 100, where the IF is 1% and the MSC is 1.2% (ie the IF of 1% and the acquirers own fee of 0.2%).
+The card holder pays 100, which the issuer deducts from his account.
+The issuer pays 99 to the Acquirer and the acquirer pays 98.80 to the merchant.
+The IF may be bilaterally agreed between the issuer and the acquirer, or they may both be the same bank.
+But otherwise the IF is paid at a default rate set by the scheme rules, known as the multilateral interchange fee (MIF).
+There are various different rates of MIF, depending on the type of card used (eg debit or credit) and the places where respectively the card is issued and the merchant carries on business.
+Thus there was a domestic UK MIF where the card was issued in the UK and the merchant carried on business there.
+There was also an Intra EEA MIF where the two respective places were in different member states of the EEA.
+Following an investigation, the European Commission decided in December 2007 that the default level set by Mastercard since May 1992 for its Intra EEA MIF amounted to a restriction of competition by effect, contrary to article 81 EC (now article 101 TFEU) and article 53 of the EEA Agreement.
+It is common ground that this was a form of unlawful anti competitive behaviour sounding in damages for breach of statutory duty under section 47A of the Act.
+The Intra EEA MIF applied to a large number of purchase transactions by UK card holders, using cards issued in the UK to make purchases from merchants in other EEA states, and to purchases from UK merchants where the card holders were using cards issued in other EEA states.
+A very much larger series of transactions by UK card holders during the same period attracted the domestic UK MIF.
+It is alleged in the present proceedings, but it is not common ground, that the level of the UK MIF was affected by the level of the infringing Intra EEA MIF, so that the loss said to result from the UK MIF was therefore caused by the infringement.
+The Commissions decision (the EC Decision) stated at recital 411 that: A further consequence of this restriction of price competition is that customers making purchases at merchants who accept payment cards are likely to have to bear some part of the cost of Mastercards MIF irrespective of the form of payment the customers use.
+This is because depending on the competitive situation merchants may increase the price for all goods sold by a small margin rather than internalising the cost imposed on them by a MIF.
+Mastercard challenged the Commissions decision in the European courts, but without success, and now accepts that it is bound by the finding of breach, for the whole of the period from May 1992 until December 2007 (the Infringement Period).
+The Proceedings
+In September 2016 the respondent Mr Walter Merricks CBE issued a collective proceedings claim form against Mastercard, seeking to represent claims by all UK resident adult consumers of goods and services purchased in the UK during the almost 16 year Infringement Period from merchants accepting Mastercard.
+The size of the represented class was estimated in the claim form to be 46.2m people.
+It was not a condition of class membership that members either had owned or used a Mastercard for their purchases.
+It was alleged that any price increases by which merchants passed on the cost of the MIF was applied to all purchasers, not just purchasers using cards.
+Business customers of merchants using the Mastercard scheme are not included in the claimant class.
+The essential structure of the claim was as follows: a.
+The infringing Intra EEA MIF set an unlawfully high minimum level of IF.
+But for the infringement identified by the EC Decision, IFs both for cross border and domestic transactions would have been charged at a lower level, the difference between that lower level and both the Intra EEA MIF and the domestic UK MIF representing an unlawful element of overcharge. b.
+That unlawful overcharge was passed on by acquirers to their merchants in full, via the MSC. c.
+All or a substantial part of the unlawful overcharge was then passed on by merchants operating the Mastercard scheme to their consumer customers, by way of higher prices than would otherwise have been charged for goods and services, thereby causing loss to consumers as a class, equivalent to the amount of the unlawful overcharge passed on.
+This is a follow on claim which is sought to be brought on an opt out basis.
+A follow on claim is one which is based upon an existing decision establishing breach, here the EC Decision, which is binding on the domestic tribunal: see section 58A of the Act.
+Section 47B of the Act makes provision for collective proceedings to be brought on an opt in or opt out basis.
+Leaving aside non domiciled claimants, an opt out basis means that the proceedings are brought on behalf of every person within the class definition who does not opt out from membership of the class: see section 47B(11).
+Mr Merricks seeks an award of aggregate damages under section 47C of the Act and proposes that the proceeds of any award should be distributed broadly equally among members of the class on a per capita basis for each separate year of the Infringement Period.
+He justifies this on the ground that any attempt to differentiate between members on the basis of individual loss would be disproportionate having regard to the modest amounts at stake for each individual, and the forensic difficulties in any reliable basis for discrimination, after the passage of time, within such a huge class.
+Save that Mastercard admits, as it must, the breach of statutory duty identified by the EC Decision in relation to the Intra EEA MIF and accepts that the whole of any relevant MIF was passed on in full by acquirers to merchants, Mastercard challenges every aspect of the claim.
+It denies that its excessive Intra EEA MIF caused any unlawful increase in domestic UK MIFs (which dominated the relevant transactions during the Infringement Period), or that IFs would have been any lower than in fact they were, but for the infringement.
+Thus it denies unlawful overcharge: (the overcharge issue).
+More importantly for present purposes Mastercard does not accept that merchants passed on all or any part of any overcharge to their customers: (the merchant pass on issue).
+I use the phrase does not accept rather than deny advisedly.
+There are now pending some hundreds of claims by merchants against Mastercard, alleging loss by reason of having incurred the cost of the overcharge as part of the MSC passed on by their acquirer banks, without having passed it, or at least all of it, on to their customers.
+In at least some of those cases Mastercard has sought to defend by alleging that the merchants did pass on all or part of any overcharge to their customers, and therefore, or at least to that extent, suffered no loss.
+Mr Merricks sought to support his case that the claims were eligible for collective proceedings by describing both the overcharge issue and the merchant pass on issue as common issues affecting all the claims.
+Mastercard persuaded the CAT that the merchant pass on issue was not a common issue.
+But the Court of Appeal held that it was, and their conclusion has not been challenged in this court.
+The potential quantum of the claims, on the basis of full success on the main issues, was provisionally estimated in written evidence by Mr Merricks expert team at more than 14 billion for the class as a whole.
+But the likely average individual recovery after a distribution on the basis proposed has been very roughly estimated at only 300 each, even on a full success basis.
+It became reasonably clear during the hearing before the CAT that the aggregate damages figure was very likely to prove to be a considerable over estimate, with the consequence that the likely individual recoveries would also be reduced.
+On any view however the proceedings involve a disparity in size between collective and individual recovery on a scale which is, in the current experience of the UK courts and tribunals, completely unique.
+Mastercard objected to certification on both the main criteria, submitting that Mr Merricks could show neither that it was reasonable for him to be authorised to act as representative nor that the claims were eligible for collective proceedings.
+The CAT rejected the first of those objections, but upheld the second, and Mastercard did not pursue its objection to Mr Merricks as representative in the Court of Appeal.
+The result is that this appeal concerns solely the legal requirements for eligibility.
+Before considering the CATs analysis and the Court of Appeals reasons for finding that it was wrong in law, it is convenient to set out the relevant provisions in the Act, the relevant rules and the CATs published guidance.
+The statutory framework for certification
+The structure for collective proceedings of this type is an entirely statutory creation.
+Its relative novelty means that it has yet to attract a body of authoritative UK case law about its operation, although there is significant Canadian jurisprudence about pre existing similar (although not identical) statutory schemes there which has been much relied upon in these proceedings.
+As will appear it will be necessary to set the bones of the statutory structure in its context as a part (albeit specialised) of the UKs civil and tribunal procedure.
+Although now forming part of the Competition Act 1998, the statutory part of the structure for collective proceedings was introduced, by amendment, in two stages.
+The first was in the Enterprise Act 2002, but it only permitted opt in proceedings and was unsuccessful.
+The second was in the Consumer Rights Act 2015.
+This followed a public consultation by the Department for Business, Innovation and Skills.
+In its paper published in April 2012, it was announced that the government wished to bring forward proposals to improve the regime for bringing private actions for redress for anti competitive behaviour.
+At paragraph 3.6 under the heading Aims the paper stated: The aim of these proposals is therefore two fold: Increase growth, by empowering small businesses to tackle anti competitive behaviour that is stifling their business.
+Promote fairness, by enabling consumers and businesses who have suffered loss due to anti competitive behaviour to obtain redress.
+Under the heading Why is reform needed? the paper recognised, at paragraph 3.11, the widespread view that private actions were the least satisfactory aspect of the competition regime, so that there was wide recognition of the need to improve access to redress and dispute resolution.
+At paragraph 3.12 it stated: Currently it is rare for consumers and SMEs to obtain redress from those who have breached competition law, and it can be difficult and expensive for them to go to court to halt anti competitive behaviour.
+At paragraph 3.13 it continued: A further difficulty is that competition cases may involve large sums but be divided across many businesses or consumers, each of whom has lost only a small amount.
+This means that a major case, with aggregate losses in the millions or tens of millions of pounds, can nevertheless lack any one individual for whom pursuing costs makes economic sense.
+Paragraph 3.14 contained a brief review of the shortcomings of the then current procedural frameworks, including the representative action under the English and Welsh Civil Procedural Rules.
+Under the heading Proposals the paper proposed both the establishment of the CAT as a major venue for competition actions across the UK and to: Introduce an opt out collective actions regime for competition law to allow consumers and businesses to collectively bring a case to obtain redress for their losses.
+Section 47A of the Act (introduced by the Enterprise Act 2002 and amended by the Consumer Rights Act 2015) identifies the types of claim which, under section 47B(1), may now be brought as collective proceedings.
+The present claims are included at section 47A(2) and (6)(c), because they are based upon a decision of the Commission that there has been an infringement of the prohibition in article 101(1).
+But collective proceedings are not the only type of proceedings which may be brought, even before the CAT, and the CAT does not have exclusive jurisdiction for claims falling within section 47A.
+As section 47A(2) recognises, such claims may in theory at least be brought by means of any available type of civil proceedings within the UK.
+Collective proceedings are however within the exclusive jurisdiction of the CAT, and subject to the Competition Appeal Tribunal Rules 2015 (SI 2015/1648) (the Rules).
+Section 47B provides as follows: (1) Subject to the provisions of this Act and Tribunal rules, proceedings may be brought before the Tribunal combining two or more claims to which section 47A applies (collective proceedings). (2) Collective proceedings must be commenced by a person who proposes to be the representative in those proceedings. (3) The following points apply in relation to claims in collective proceedings (a) it is not a requirement that all of the claims should be against all of the defendants to the proceedings, (b) the proceedings may combine claims which have been made in proceedings under section 47A and claims which have not, and (c) a claim which has been made in proceedings under section 47A may be continued in collective proceedings only with the consent of the person who made that claim. (4) Collective proceedings may be continued only if the Tribunal makes a collective proceedings order. (5) The Tribunal may make a collective proceedings order only (a) if it considers that the person who brought the proceedings is a person who, if the order were made, the Tribunal could authorise to act as the representative in those proceedings in accordance with subsection (8), and (b) inclusion in collective proceedings. in respect of claims which are eligible for (6) Claims are eligible for inclusion in collective proceedings only if the Tribunal considers that they raise the same, similar or related issues of fact or law and are suitable to be brought in collective proceedings. (7) A collective proceedings order must include the following matters (a) authorisation of the person who brought the proceedings to act as the representative in those proceedings, (b) description of a class of persons whose claims are eligible for inclusion in the proceedings, and (c) specification of the proceedings as opt in collective proceedings or opt out collective proceedings (see subsections (10) and (11)). (8) The Tribunal may authorise a person to act as the representative in collective proceedings (a) whether or not that person is a person falling within the class of persons described in the collective proceedings order for those proceedings (a class member), but (b) only if the Tribunal considers that it is just and reasonable for that person to act as a representative in those proceedings. (9) The Tribunal may vary or revoke a collective proceedings order at any time. (10) Opt in collective proceedings are collective proceedings which are brought on behalf of each class member who opts in by notifying the representative, in a manner and by a time specified, that the claim should be included in the collective proceedings. (11) Opt out collective proceedings are collective proceedings which are brought on behalf of each class member except any class member who opts out by notifying the (a) representative, in a manner and by a time specified, that the claim should not be included in the collective proceedings, and (b) any class member who
+Section 47C deals with damages and costs in collective proceedings.
+It provides, so far as is relevant: is not domiciled in the United Kingdom at (i) a time specified, and (ii) does not, in a manner and by a time specified, opt in by notifying the representative that the claim should be included in the collective proceedings. (12) Where the Tribunal gives a judgment or makes an order in collective proceedings, the judgment or order is binding on all represented persons, except as otherwise specified. (13) The right to make a claim in collective proceedings does not affect the right to bring any other proceedings in respect of the claim. (14) In this section and in section 47C, specified means specified in a direction made by the Tribunal. (2) The Tribunal may make an award of damages in collective proceedings without undertaking an assessment of the amount of damages recoverable in respect of the claim of each represented person. (3) Where the Tribunal makes an award of damages in opt out collective proceedings, the Tribunal must make an order providing for the damages to be paid on behalf of the represented persons to the representative, or such person other than a represented person as (a) (b) the Tribunal thinks fit. (4) Where the Tribunal makes an award of damages in opt in collective proceedings, the Tribunal may make an order as described in subsection (3).
+Subsections (5) and following provide for the distribution of unclaimed collective damages to charity or to meet the representatives costs and expenses, as already mentioned.
+Section 49 makes provision for appeals from the CAT in relation to (inter alia) collective proceedings.
+It is common ground in this court that an appeal from a certification decision of the CAT lies only on a point of law.
+Section 47B(1) expressly makes the right to bring collective proceedings subject to the Rules.
+They provide, at rule 2(2), that the Rules are to be applied and interpreted in accordance with the governing principles in rule 4.
+Rule 4(1) (2) states that cases are to be decided justly and at proportionate cost.
+This is a modified version of the well known overriding objective enshrined in the Civil Procedure Rules of England and Wales and with parallels in most modern codes of civil procedure both in the UK and around the common law world, including Canada.
+Rules 41 and 43 provide for the CAT, on the application of a party or of its own initiative, to have power to strike out all or part of a claim or to give summary judgment in relation to a claim or an issue in a claim against a claimant or defendant.
+These powers are fully applicable to collective proceedings, both generally and at the time of the hearing of an application for a CPO: see rule 79(4).
+They enable the CAT to prevent collective proceedings going to a (probably very expensive) trial in cases where they, or parts of them, disclose no reasonable cause of action, are abusive or do not raise triable issues.
+In short, they enable the CAT to exercise a merits based control over collective proceedings on lines similar to those available in civil proceedings generally.
+Rules 75 to 81 make detailed provision for the commencement and certification of collective proceedings.
+For present purposes rule 77, headed Determination of the application for a collective proceedings order and rule 79, headed Certification of the claims as eligible for inclusion in collective proceedings, are of primary importance.
+They provide as follows: 77(1) The Tribunal may make a collective proceedings order, after hearing the parties, only (a) if it considers that the proposed class representative is a person who, if the order were made, the Tribunal could authorise to act as the class representative in those proceedings in accordance with rule 78; and (b) in respect of claims or specified parts of claims which are eligible for inclusion in collective proceedings in accordance with rule 79. (2) If the Tribunal makes a collective proceedings order it may attach such conditions to the order or give such directions as it thinks fit, including (a) directions for filing and service of the order, pleadings and any other document in relation to the collective proceedings; and (b) directions regarding any class member who is a child or person who lacks capacity. 79(1) The Tribunal may certify claims as eligible for inclusion in collective proceedings where, having regard to all the circumstances, it is satisfied by the proposed class representative that the claims sought to be included in the collective proceedings are brought on behalf of an identifiable class of raise common issues; and are suitable to be brought in collective (a) persons; (b) (c) proceedings.
+In determining whether the claims are suitable to be (2) brought in collective proceedings for the purposes of paragraph (1)(c), the Tribunal shall take into account all matters it thinks fit, including the costs and the benefits of continuing the (a) whether collective proceedings are an appropriate means for the fair and efficient resolution of the common issues; (b) collective proceedings; (c) whether any separate proceedings making claims of the same or a similar nature have already been commenced by members of the class; (d) the size and the nature of the class; (e) whether it is possible to determine in respect of any person whether that person is or is not a member of the class; (f) whether the claims are suitable for an aggregate award of damages; and the availability of alternative dispute resolution (g) and any other means of resolving the dispute, including the availability of redress through voluntary schemes whether approved by the CMA under section 49C of the 1998 Act or otherwise.
+In determining whether collective proceedings should (3) be opt in or opt out proceedings, the Tribunal may take into account all matters it thinks fit, including the following matters additional to those set out in paragraph (2) the strength of the claims; and (a) (b) whether it is practicable for the proceedings to be brought as opt in collective proceedings, having regard to all the circumstances, including the estimated amount of damages that individual class members may recover. (4) At the hearing of the application for a collective proceedings order, the Tribunal may hear any application by the defendant (a) under rule 41(1), to strike out in whole or part any or all of the claims sought to be included in the collective proceedings; or (b) under rule 43(1), for summary judgment. (5) Any member of the proposed class may apply to make submissions either in writing or orally at the hearing of the application for a collective proceedings order.
+A CPO is not either the beginning or the end of the measures whereby the CAT may case manage collective proceedings.
+Under rule 76(9) the CAT must convene a case management conference for the management of the application for a CPO.
+Rule 85 contains wide powers for the CAT to stay collective proceedings or to vary or revoke a CPO, including power to add, remove or substitute parties and power to order the amendment of the claim form.
+Rule 88 confers wide powers of case management, exercisable at any time, while rule 89 confers power to order disclosure, in the widest possible form.
+Finally, rule 115(3) empowers the president of the CAT to issue practice directions.
+The current Guidance (published by the CAT in 2015) has the force of a practice direction.
+Paragraph 6.13 provides that: The proposed class representative should send with the collective proceedings claim form any evidence relied on in support of the application for a CPO.
+That may include, for example, a witness statement by or on behalf of the proposed class representative addressing the considerations raised by rules 78 and 79; and an experts report regarding the way in which the common issues identified in the claim form may suitably be determined on a collective basis.
+Paragraph 6.39 deals with the requirement in rule 79(3)(a) to consider the strength of the claims when deciding whether collective proceedings should be opt in or opt out.
+It provides: Strength of the claims (rule 79(3)(a)) Given the greater complexity, cost and risks of opt out proceedings, the Tribunal will usually expect the strength of the claims to be more immediately perceptible in an opt out than an opt in case, since in the latter case, the class members have chosen to be part of the proceedings and may be presumed to have conducted their own assessment of the strength of their claim.
+However, the reference to the strength of the claims does not require the Tribunal to conduct a full merits assessment, and the Tribunal does not expect the parties to make detailed submissions as if that were the case.
+Rather, the Tribunal will form a high level view of the strength of the claims based on the collective proceedings claim form.
+For example, where the claims seek damages for the consequence of an infringement which is covered by a decision of a competition authority (follow on claims), they will generally be of sufficient strength for the purpose of this criterion.
+Paragraph 6.43 of the Guidance provides that defendants applications to strike out or for summary judgment made before the certification hearing will generally be dealt with at that hearing, together with any application for security for costs.
+The decision of the CAT to refuse certification
+In a reserved judgment the CAT refused Mr Merricks a CPO upon two
+distinct but related grounds, both relating to the eligibility criterion under section 47B(5)(b) and (6) of the Act: [2017] CAT 16; [2018] Comp AR 1.
+This was not because the claims failed to raise the same, similar or related issues, even though the CAT held that the merchant pass on issue was not a common issue in that sense.
+The overcharge issue was a common issue, so their conclusion that the merchant pass on issue was not common was not fatal to the application.
+Rather the refusal of a CPO was because the claims were not suitable to be brought in collective proceedings.
+The first reason was that the claims were not suitable for an aggregate award of damages, within rule 79(2)(f).
+This was sufficient on its own to require refusal of a CPO.
+The second reason was that Mr Merricks proposals for distribution of any aggregate award did not respond in any way to the compensatory principle which the CAT regarded, on common law principles, as an essential requirement of any distributive scheme.
+This was not a requirement mentioned in the Act, the Rules or the Guidance, but it was regarded by the CAT as a relevant matter under rule 79(2), also sufficient on its own to require a CPO to be refused.
+The first reason requires some unpacking.
+Mr Merricks supported his application by an expert report from Dr Veljanovski, an economist, and Mr Dearman, a forensic accountant, which sought to explain (inter alia) the methodology by which it was proposed to support an award of aggregate damages for the losses cumulatively suffered by an enormous class over the Infringement Period.
+That methodology included dividing the retail goods and services market into some 11 sectors, seeking to establish the degree of merchant pass on in each and then deriving a weighted average across the retail market as a whole.
+Expressed as a fraction or percentage, that average could be used to estimate the amount of the overcharge (separately identified) passed on to consumers, and therefore the amount of the overcharge which represented the aggregate loss of the consumers, as opposed to the merchants, as a separate class.
+After a hearing which included questioning of the experts by the members of the CAT and some cross examination by counsel for Mastercard, the CAT concluded that the experts had not demonstrated a sufficient likelihood of there being available at trial sufficient data for all those sectors across the whole of the Infringement Period to enable that methodology to generate a sufficiently reliable result.
+The CAT did not by this conclusion mean that they regarded it as impossible, or even unlikely, for Mr Merricks to be able to prove at trial that the class had suffered some loss.
+Rather, their concern was as to the probable unreliability of the quantification of that loss, on a class wide basis as permitted by the procedure for an award of aggregate damages.
+Their conclusion is encapsulated in this extract from para 78 of the judgment: . we are unpersuaded on the material before us that there is sufficient data available for this methodology to be applied on a sufficiently sound basis.
+It follows that we are not satisfied, and indeed very much doubt, that the claims are suitable for an aggregate award of damages: see rule 79(2)(f).
+The CATs second reason is, in a sense, self explanatory.
+When a class is constituted by all consumers who, during a 16 year period, purchased goods and services from one or more of the half million or so merchants which operated the Mastercard scheme, it is obvious that there will be wide divergences in the impact of any overcharge upon each one of them, viewed individually, even if all of them will probably have suffered some loss, because of the virtual impossibility of a consumer entirely avoiding a merchant operating Mastercards scheme for any of their purchases.
+These divergences will only be partly mitigated by adoption of the proposed annual basis of per capita distribution.
+Even within a single year, the effect of an overcharge upon individual consumers will depend upon sectoral variations in merchant pass on, the particular focus of the consumers spending, and the relative wealth of each consumer.
+The CAT regarded it as axiomatic, in accordance with the basic common law principle that damages had to be compensation for loss, that if an estimation of aggregate damages was adopted which was not itself based in any way upon an assessment of individual loss, then: Such an approach can only be permissible, in our view, if there is then a reasonable and practicable means of getting back to the calculation of individual compensation. (para 79) In the CATs view, a per capita per annum basis of distribution of aggregate damages entirely failed to satisfy that requirement.
+At para 84 they said: The problem in the present case is that there is no plausible way of reaching even a very rough and ready approximation of the loss suffered by each individual claimant from the aggregate loss calculated according to the applicants proposed method.
+At para 88 the CAT concluded that a method of distribution which did not serve the compensatory principle could not be a reasonable basis for the distribution of aggregate damages.
+The Court of Appeal
+On Mr Merricks appeal the Court of Appeal (Patten, Hamblen and Coulson LJJ) concluded, in a judgment of the court, that the CATs decision to refuse a CPO had been vitiated by five errors of law: [2019] EWCA Civ 674; [2019] Bus LR 3025.
+First, as already noted, the CAT had wrongly regarded the merchant pass on issue as not being a common issue.
+Secondly, the CAT had in its approach to the issue as to the likely availability of data for the quantification of merchant pass on set an illegitimately high merits threshold at the certification stage.
+Thirdly, for that purpose the CAT conducted in effect a mini trial, involving the cross examination of experts, whereas they should have confined themselves to the question whether, on the documents, the claim form disclosed a real prospect of success.
+Fourthly the CAT had been wrong to conclude that aggregate damages could not be distributed by a method which paid no regard to differing levels of individual loss.
+Finally, it had been premature for the CAT to reach a final, and adverse, conclusion about the proposed method of distribution at the certification stage, and to use that conclusion as a self standing reason for refusing certification at all.
+Both the CAT and the Court of Appeal treated as highly persuasive some dicta in the leading Canadian case on certification, Pro Sys Consultants Ltd v Microsoft Corpn [2013] SCC 57.
+The CAT purported to rely upon them as the basis for their conclusion that the claims were unsuitable for aggregate damages.
+The Court of Appeal treated the same (and other) Canadian dicta as the foundation for their decision that the merits threshold for certification was lower than the hurdle which the CAT had applied.
+It is convenient at this stage to summarise the Canadian jurisprudence, and to set it in its own statutory and procedural context.
+The Canadian Jurisprudence on Certification of Collective Proceedings
+Many Canadian provinces and territories developed a statutory structure for collective proceedings (there called class proceedings) both earlier, and comprehending a more general range of potential claims, than in the UK.
+For present purposes it is sufficient to consider the regime enacted in British Columbia.
+By its Class Proceedings Act 1996 (the CPA) opt out class proceedings for civil claims generally were introduced subject to a certification procedure, with provision for the award of aggregate damages.
+Ontario had adopted a similar structure in 1992.
+The Canadian structures were regarded by the UK government as the best model for the collective proceedings regime introduced in 2015 (see para 194 of the Departments Final Impact Assessment published in January 2013, following the consultation referred to above).
+There are many similarities and some differences between the Canadian and UK statutory structures.
+Both operate within a civil procedural framework based upon common law principles and which is guided by a similar form of overriding objective: see eg rule 1 3 of British Columbias Supreme Court Civil Rules, BC Regulation 168/2009.
+Both may be said to serve broadly the same statutory purpose of providing effective access to justice for claimants for whom the pursuit of individual claims would be impracticable or disproportionate.
+In Hollick v Toronto (City) 2001 SCC 68; [2001] 3 SCR 158, Chief Justice McLachlin described the beneficial purposes of class action procedure in these terms, at para 15, speaking of the Ontario Class Proceedings Act 1992: The Act reflects an increasing recognition of the important advantages that the class action offers as a procedural tool class actions provide three important advantages over a multiplicity of individual suits.
+First, by aggregating similar individual actions, class actions serve judicial economy by avoiding unnecessary duplication in fact finding and legal analysis.
+Second, by distributing fixed litigation costs amongst a large number of class members, class actions improve access to justice by making economical the prosecution of claims that any one class member would find too costly to prosecute on his or her own.
+Third, class actions serve efficiency and justice by ensuring that actual and potential wrongdoers modify their behaviour to take full account of the harm they are causing, or might cause, to the public.
+In proposing that Ontario adopt class action legislation, the Ontario Law Reform Commission identified each of these advantages In my view, it is essential therefore that courts not take an overly restrictive approach to the legislation, but rather interpret the Act in a way that gives full effect to the benefits foreseen by the drafters.
+Section 4(1) of the British Columbia CPA requires the court to certify claims as class proceedings where all the following requirements are met: a.
+The pleadings disclose a cause of action, b. There is an identifiable class, c.
+The claims raise common issues, d. A class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues, and e. There is a suitable representative plaintiff.
+Section 4(2) requires the court to address the question whether a class proceeding would be preferable by reference to all relevant matters, including a list of five which are loosely similar to those in the CATs rule 79(2).
+Power to award aggregate damages in class proceedings is conferred by section 29, but the suitability of the case for an award of aggregate damages is not one of the relevant factors listed in section 4(2).
+The leading case on the certification of class proceedings in Canada is the decision of the Canadian Supreme Court in Pro Sys Consultants Ltd v Microsoft Corpn [2013] SCC 57 in 2013, on appeal from British Columbia.
+The Supreme Court restored an order for the certification of class proceedings made at first instance, which had been set aside by the BC Court of Appeal.
+The claims were brought on behalf of the ultimate consumers of computer software after an alleged unlawful overcharge by Microsoft which it was claimed had been passed on by the intermediate merchants.
+For present purposes there were two relevant conclusions.
+The first was that the threshold test for establishing that the pleadings disclosed a cause of action was the equivalent of the strike out test in English civil procedure.
+The second was that the threshold for the establishment of the other conditions for certification was that there should be some basis in fact for a conclusion that the requirement was met.
+This low threshold, derived from the Supreme Courts earlier decision in the Hollick case, was not a merits test, applied to the claim itself.
+Rather the question was whether the applicant could show that there was some factual basis for thinking that the procedural requirements for a class action were satisfied, so that the action was not doomed to failure at the merits stage by reason of a failure of one or more of those requirements: see per Rothstein J at paras 99 to 105.
+The standard of proof at the certification stage came nowhere near a balance of probabilities.
+One of the many issues in the Microsoft case was whether the requirement for common issues was satisfied.
+In a passage which has come to assume a central place in the submissions in this case, at all levels, Rothstein J said this, at para 118, about the expert methodology put forward in support of the claim: In my view, the expert methodology must be sufficiently credible or plausible to establish some basis in fact for the commonality requirement.
+This means that the methodology must offer a realistic prospect of establishing loss on a class wide basis so that, if the overcharge is eventually established at the trial of the common issues, there is a means by which to demonstrate that it is common to the class (ie that passing on has occurred).
+The methodology cannot be purely theoretical or hypothetical but must be grounded in the facts of the particular case in question.
+There must be some evidence of the availability of the data to which the methodology is to be applied.
+Subsequent reported decisions in Canada have fortified this low threshold approach to meeting the conditions for certification.
+In Ewert v Nippon Yusen Kabushiki Kaisha [2019] BCCA 187, paras 105 to 109 the BC Court of Appeal warned against imposing an excessive burden on the provision of expert evidence about the likely availability of data at the certification stage, in particular because it necessarily preceded the processes of disclosure which would become available after certification.
+The some basis in fact test required only a minimum evidentiary basis and was not an onerous one.
+As recently as September 2019 the Supreme Court of Canada affirmed the approach taken to certification in the Microsoft case, in Pioneer Corpn v Godfrey [2019] SCC 42, paras 106 to 108.
+I regard the Canadian jurisprudence as persuasive in the UK not only because of the greater experience of their courts in the conduct of class actions but also because of the substantial similarity of purpose underlying both their legislation and ours.
+Nonetheless in the analysis which follows I base myself firmly on the true construction of the UK legislation, set against the background of the common law and civil procedure against which it falls to be construed.
+The Parties Submissions
+The main submissions of counsel for Mastercard were that the CATs judgment disclosed no error of law, that its treatment of the issue as to the suitability of the claims for aggregate damages was both expressly and in substance based upon the Microsoft criteria, and that the CAT was entitled to take into account at the certification stage the fact that Mr Merricks distribution method did nothing to implement the compensatory principle in its application to individual consumers.
+In particular the CAT was entitled to identify each of the two particular factors (suitability for aggregate damages and distribution method) as sufficient on its own to require certification to be refused.
+Further the CAT was entitled to ask questions of Mr Merricks experts and to permit limited cross examination for the purpose of clarifying their proposed methodology in this very large and complex case.
+For their part counsel for Mr Merricks broadly supported the criticisms made of the CATs judgment by the Court of Appeal.
+In addition they sought to rely upon supplementary expert evidence, served after the hearing before the CAT, which the Court of Appeal had found it unnecessary to consider.
+This court looked at the material de bene esse but I have not found it necessary to consider it either.
+Analysis
+An appreciation of the legal requirements of the certification process, and in particular their level of severity, needs to be derived from setting the express statutory provisions of the Act and the Rules in their context as a special part of UK civil procedure, with due regard paid to their purpose.
+Collective proceedings are a special form of civil procedure for the vindication of private rights, designed to provide access to justice for that purpose where the ordinary forms of individual civil claim have proved inadequate for the purpose.
+The claims which are enabled to be pursued collectively could all, at least in theory, be individually pursued by ordinary claim, in England and Wales under the CPR, under the protection of the Overriding Objective.
+It follows that it should not lightly be assumed that the collective process imposes restrictions upon claimants as a class which the law and rules of procedure for individual claims would not impose.
+The issues which gave rise to the forensic difficulties which led to the CATs refusal of certification in the present case all relate to the quantification of damages, both at the class level (where the claims were held to be unsuitable for aggregate damages) and at the individual level (where the method of distribution was found to pay insufficient respect to the compensatory principle).
+In this follow on claim Mr Merricks and the class he seeks to represent already have a finding of breach of statutory duty in their favour.
+All they would need as individual claimants to establish a cause of action would be to prove that the breach caused them some more than purely nominal loss.
+In order to be entitled to a trial of that claim they would (again individually) need only to be able to pass the strike out and (if necessary) summary judgment test: ie to show that the claim as pleaded raises a triable issue that they have suffered some loss from the breach of duty.
+Where in ordinary civil proceedings a claimant establishes an entitlement to trial in that sense, the court does not then deprive the claimant of a trial merely because of forensic difficulties in quantifying damages, once there is a sufficient basis to demonstrate a triable issue whether some more than nominal loss has been suffered.
+Once that hurdle is passed, the claimant is entitled to have the court quantify their loss, almost ex debito justitiae.
+There are cases where the court has to do the best it can upon the basis of exiguous evidence.
+There are cases, such as general damages for pain and suffering in personal injury claims, where quantification defies scientific analysis, where the court has to apply general tariffs developed over many years by the common law, and now enshrined in the Judicial College Guidelines for the Assessment of General Damages in Personal Injury.
+In many cases the court unashamedly resorts to an element of guesswork: see generally McGregor on Damages, 20th ed (2017), paras 10 001 to 10 007.
+A resort to informed guesswork rather than (or in aid of) scientific calculation is of particular importance when (as here) the court has to proceed by reference to a hypothetical or counterfactual state of affairs.
+The loss may have to be measured by reference to what the court thinks a claimant would have done if the defendant had not committed the wrong complained of.
+Sometimes the quantification depends upon what a third party would have done, and the court has to evaluate the claimants loss of a chance.
+Chaplin v Hicks [1911] 2 KB 786 is a famous example.
+At p 792 Vaughan Williams LJ said this: In early days when it was necessary to assess damages, no rules were laid down by the courts to guide juries in the assessment of damages for breach of contract; it was left to the jury absolutely.
+But in course of time judges began to give advice to juries; as the stress of commerce increased, let us say between the reigns of Queen Elizabeth and Queen Victoria, rule after rule was suggested by way of advice to juries by the judges when damages for breach of contract had to be assessed.
+But from first to last there were, as there are now, many cases in which it was difficult to apply definite rules.
+In the case of a breach of a contract for the delivery of goods the damages are usually supplied by the fact of there being a market in which similar goods can be immediately bought, and the difference between the contract price and the price given for the substituted goods in the open market is the measure of damages; that rule has been always recognized.
+Sometimes, however, there is no market for the particular class of goods; but no one has ever suggested that, because there is no market, there are no damages.
+In such a case the jury must do the best they can, and it may be that the amount of their verdict will really be a matter of guesswork.
+But the fact that damages cannot be assessed with certainty does not relieve the wrong doer of the necessity of paying damages for his breach of contract Fletcher Moulton LJ emphasised the entitlement of the claimant to an assessment, at p 796: The present case is a typical one.
+From a body of 6,000, who sent in their photographs, a smaller body of 50 was formed, of which the plaintiff was one, and among that smaller body 12 prizes were allotted for distribution; by reason of the defendants breach of contract she has lost all the advantage of being in the limited competition, and she is entitled to have her loss estimated.
+I cannot lay down any rule as to the measure of damages in such a case; this must be left to the good sense of the jury.
+This principle of entitlement to quantification notwithstanding forensic difficulty has stood the test of time and outlasted the involvement of civil juries in the assessment of damages.
+In Davies v Taylor [1974] AC 207, 212, Lord Reid said: There can be no question of proving as a fact that she would have received a certain amount of benefit.
+No one can know what might have happened had he not been killed.
+But the value of the prospect, chance or probability of support can be estimated by taking all significant factors into account.
+But, perhaps on an application of the de minimis principle, speculative possibilities would be ignored.
+I think that must apply equally whether the contention is that for some reason or reasons the support might have increased, decreased or ceased altogether.
+The court or jury must do its best to evaluate all the chances large or small, favourable or unfavourable.
+For a practical example of the application of this principle in the context of infringement of intellectual property rights see Experience Hendrix LLC v Times Newspapers Ltd [2010] EWHC 1986 (Ch), paras 204 205 per Blackburne J.
+This unavoidable requirement for quantification in order to do justice is not limited to damages.
+There are occasions where the court has to quantify or value some right or species of property and does not allow itself to be put off by forensic difficulties, however severe.
+For example a rateable value may have to be assessed in relation to property, such as a stately home, where there are no real comparables at all, and it has never been let.
+Or a market rent may have to be assessed as at a date when there are no remotely contemporaneous comparables.
+Assisted by experts, the court makes use of the best evidence available, often by making quite broad assumptions about market movements over a long period of time.
+See generally Dennard v PricewaterhouseCoopers [2010] EWHC 812 (Ch), para 182 per Vos J and Capita Alternative Fund Services (Guernsey) Ltd v Drivers Jonas (A Firm) [2012] EWCA Civ 1417, para 43 per Gross LJ.
+Sometimes the court has to determine the beneficial shares of cohabitees in co owned residential property, where there is no reliable evidence of the parties intentions.
+In such cases the court now broadly applies the maxim that equality is equity: see Stack v Dowden [2007] UKHL 17; [2007] 2 AC 432.
+In none of these cases does the court throw up its hands and bring the proceedings to an end before trial because the necessary evidence is exiguous, difficult to interpret or of questionable reliability.
+In relation to damages, this fundamental requirement of justice that the court must do its best on the evidence available is often labelled the broad axe or broad brush principle: see Watson Laidlaw & Co Ltd v Pott Cassels & Williamson (A Firm) 1914 SC (HL) 18, 29 30 per Lord Shaw.
+It is fully applicable in competition cases.
+ASDA Stores Ltd v Mastercard Inc [2017] EWHC 93 (Comm) was a claim by an individual merchant arising out of (inter alia) the same breach as in these proceedings.
+After citing the Watson Laidlaw case Popplewell J said, at para 306: The broad axe metaphor appears to originate in Scotland in the 19th century.
+The more creative painting metaphor of a broad brush is sometimes used.
+In either event the sense is clear.
+The court will not allow an unreasonable insistence on precision to defeat the justice of compensating a claimant for infringement of his rights.
+There is European guidance to the same effect.
+In a Commission Staff Working Document entitled Practical Guide on Quantifying Harm in Actions for Damages based on articles 101 and 102, C (2013) 3440, the Commission said: 16.
+It is impossible to know with certainty how a market would have exactly evolved in the absence of the infringement of article 101 or 102 TFEU.
+Prices, sales volumes, and profit margins depend on a range of factors and complex, often strategic interactions between market participants that are not easily estimated.
+Estimation of the hypothetical non infringement scenario will thus by definition rely on a number of assumptions.
+In practice, the unavailability or inaccessibility of data will often add to this intrinsic limitation. 17.
+For these reasons, quantification of harm in competition cases is, by its very nature, subject to considerable limits as to the degree of certainty and precision that can be expected.
+There cannot be a single true value of the harm suffered that could be determined, but only best estimates relying on assumptions and approximations.
+Applicable national legal rules and their interpretation should reflect these inherent limits in the quantification of harm in damages actions for breaches of articles 101 and 102 TFEU in accordance with the EU law principle of effectiveness so that the exercise of the right to damages guaranteed by the Treaty is not made practically impossible or excessively difficult.
+There is an unresolved question, when there remains uncertainty which cannot be fully resolved, whether the benefit of the doubt should be given to the claimant or to the defendant.
+It is unnecessary to deal with it on this appeal, and the court did not seek, or have, the parties submissions on it.
+But it is clear from the above citations that justice requires that the damages be quantified for the twin reasons of vindicating the claimants rights and exacting appropriate payment by the defendant to reflect the wrong done.
+In the present context that second reason is fortified by the perception that anti competitive conduct may never be effectively restrained in the future if wrongdoers cannot be brought to book by the masses of individual consumers who may bear the ultimate loss from misconduct which has already occurred.
+There is nothing in the statutory scheme for collective proceedings which suggests, expressly or by implication, that this principle of justice, that claimants who have suffered more than nominal loss by reason of the defendants breach should have their damages quantified by the court doing the best it can on the available evidence, is in any way watered down in collective proceedings.
+Nor that the gatekeeping function of the CAT at the certification stage should be an occasion when a case which has not failed the strike out or summary judgment tests should nonetheless not go to trial because of difficulties in the quantification of damages.
+On the contrary, as the Court of Appeal observed at para 59, a refusal of certification of a case like the present is likely to make it certain that the rights of consumers arising out of a proven infringement will never be vindicated, because individual claims are likely to be a practical impossibility.
+The evident purpose of the statutory scheme was to facilitate rather than to impede the vindication of those rights.
+As Mr Paul Harris QC for Mr Merricks submitted, it is useful to ask whether the forensic difficulties which the CAT considered made the class claim unsuitable for aggregate damages, would have been any easier for an individual claimant to surmount.
+His answer, with which I would agree, was they would not be.
+The particular difficulties identified by the CAT lay in establishing the overall proportion of any overcharge passed on by merchants to consumers, by means of a weighted average of merchant pass on in each sector of the retail market for goods or services, due to the probable dearth of relevant data for some sectors of the market.
+That overall amount is equivalent to the loss suffered by consumers as a class.
+But an individual consumer would still have to address the same issue, at least for the years in which he or she was making purchases from merchants, in every sector of the retail market in which that consumer was active.
+If that is right why, one asks, should a forensic difficulty in quantifying loss which would not stop an individual consumers claim going to trial (assuming it disclosed a triable issue) stop a class claim at the certification stage?
+The answer depends to some extent upon the meaning of suitable as descriptive of claims both generally under section 47B in the phrase suitable to be brought in collective proceedings and under rule 79(2)(f) in the phrase suitable for an aggregate award of damages.
+It might mean (i) suitable in the abstract, or (ii) suitable in a relative sense: ie suitable to be brought in collective proceedings rather than individual proceedings, and suitable for an award of aggregate rather than individual damages.
+The British Columbia CPA solves this conundrum by using the word preferable instead of suitable, a word plainly asking the question preferable to what?.
+The different words used, as between BC and the UK, are at first sight striking.
+But a reflection upon the central purpose of the collective proceedings structure, which has substantially the same purpose in the UK as in BC, suggests that suitable to be brought in collective proceedings has the second of those two meanings.
+This is because collective proceedings have been made available as an alternative to individual claims, where their procedure may be supposed to deal adequately with, or replace, aspects of the individual claim procedure which have been shown to make it unsuitable for the obtaining of redress at the individual consumer level for unlawful anti competitive behaviour.
+The same analysis leads to the same conclusion about the meaning of suitable for an award of aggregate damages under rule 79(2)(f).
+The pursuit of a multitude of individually assessed claims for damages, which is all that is possible in individual claims under the ordinary civil procedure, is both burdensome for the court and usually disproportionate for the parties.
+Individually assessed damages may also be pursued in collective proceedings, but the alternative aggregate basis radically dissolves those disadvantages, both for the court and for all the parties.
+In general, although there may be exceptions, defendants are only interested in the quantification of their overall (ie aggregate) liability.
+For the claimants the choice between individual or aggregate assessment will usually be a question of proportionality.
+Another basic feature of the law and procedure for the determination of civil claims for damages is of course the compensatory principle, as the CAT recognised.
+It is another important element of the background against which the statutory scheme for collective proceedings and aggregate awards of damages has to be understood.
+But in sharp contrast with the principle that justice requires the court to do what it can with the evidence when quantifying damages, which is unaffected by the new structure, the compensatory principle is expressly, and radically, modified.
+Where aggregate damages are to be awarded, section 47C of the Act removes the ordinary requirement for the separate assessment of each claimants loss in the plainest terms.
+Nothing in the provisions of the Act or the Rules in relation to the distribution of a collective award among the class puts it back again.
+The only requirement, implied because distribution is judicially supervised, is that it should be just, in the sense of being fair and reasonable.
+Moving away from the general background of the law and procedure for civil claims, the following points need emphasis about the statutory structure itself.
+First, the Act and Rules make it clear that, subject to two exceptions, the certification process is not about, and does not involve, a merits test.
+This is because the power of the CAT, on application by a party or of its own motion, to strike out or grant summary judgment is dealt with separately from certification.
+The Rules make separate provision for strike out and summary judgment in rules 41 and 43 respectively, which applies to collective proceedings as to other proceedings before the CAT.
+There is no requirement at the certification stage for the CAT to assess whether the collective claim form, or the underlying claims, would pass any other merits test, or survive a strike out or summary judgment application, save that the CAT may, as a matter of discretion, hear such an application at the same time as it hears the application for a CPO: see rule 89(4).
+This is the first exception, but inapplicable in the present case because no such application was made.
+The second exception is that rule 79(3)(a) makes express reference to the strength of the claims, but only in the context of the choice between opt in and opt out proceedings.
+It does so in terms which, by the use of the words the following matters additional to the matters set out in paragraph (2), confirm that the factors relevant to whether the claims are suitable to be brought in collective proceedings do not include a review of the merits.
+By contrast with the conditions for certification in British Columbia, which do require that the pleadings disclose a cause of action, not even this basic merits threshold is prescribed in the UK by the Act or the Rules.
+Secondly, the listing of a number of factors potentially relevant to the question whether the claims are suitable to be brought in collective proceedings in rule 79(2), within the general rubric all matters it thinks fit shows that the CAT is expected to conduct a value judgment about suitability in which the listed and other factors are weighed in the balance.
+The listed factors are not separate suitability hurdles, each of which the applicant for a CPO must surmount.
+The hurdles (ie preconditions to eligibility under section 47B(5)(b) and (6)) are only that the claims are brought on behalf of an identifiable class, that they raise common issues and that they are suitable to be brought in collective proceedings: see also rule 79(1).
+In particular it is not a condition that the claims are suitable for an award of aggregate damages.
+That is only one of many relevant factors in the suitability assessment under rule 79(2).
+Thirdly, although the existence of common issues is a hurdle under section 47B(6) and rule 79(1)(b), in the sense that if none is raised the CAT may not make a CPO, it is also a factor relevant to suitability under rule 79(2).
+There the question is not whether there are common issues but whether collective proceedings are an appropriate means for the fair and efficient resolution of such common issues as are identified.
+At first sight this second inclusion of the common issues question under rule 79(2)(a) seems a little odd.
+It may contemplate a situation where a common issue may more fairly and economically be resolved by a procedure other than collective proceedings, perhaps by an individual test case.
+But it may also be a potential plus factor in the balance, where a common issue is ideal for determination in collective proceedings, or where all the big issues in a particular dispute are common issues.
+However that may be, it must certainly require the CAT first to determine, as it tried to do, what are the main issues in a particular case, and whether or not they are common issues.
+Unfortunately, the CAT got the common issue question wrong in relation to one of the two main issues in the present dispute, namely the merchant pass on issue, finding that it was not a common issue at all.
+That was the very issue about which the forensic difficulties identified by the CAT led it to refuse certification.
+Thus, both the two main issues in the present dispute are common issues, whereas the CAT considered that only one of them was.
+Error of law
+With the assistance of that analysis I turn to the question whether the refusal of a CPO in the present case by the CAT was vitiated by an error of law.
+I do so bearing well in mind that the CAT has unique expertise in making sophisticated economic analysis of a wide variety of data in competition cases, that it is an expert tribunal constituted for that purpose, with economists as well as lawyers on its panels of judges, and that it is the tribunal to which Parliament has entrusted both the exclusive jurisdiction over collective proceedings and, in particular, the conduct of the task of certification, with wide discretionary power for that purpose.
+In my judgment the CATs decision was vitiated by error of law.
+My reasons largely but not entirely concur with those of the Court of Appeal, but it is appropriate that I set out my own reasoning in full.
+I will do so mainly by separate treatment of the CATs two reasons for refusing certification (aggregate damages and distribution method), but I regard the question of certification as involving a single, albeit multi factorial, balancing exercise in which too much compartmentalisation may obscure the true task.
+In summary: a. The CAT got the common issue question wrong in relation to the merchant pass on issue, and therefore inevitably failed to include, as an important plus factor in the balance, the fact that this issue, and indeed both the main issues in the case, were common issues.
+That was an issue of law. b.
+The CAT treated the suitability of the claims for aggregate damages as if it were a hurdle rather than merely a factor to be weighed in the balance.
+That was wrong in law, because it misconstrued rule 79(2). c.
+In any event the CAT failed to construe suitability (in both of the respects in which it played a part in the process) in the relative sense, and thereby failed to take into account the need to consider whether individual proceedings were a relevant alternative, which they plainly were not, and whether the same difficulties as affected quantification in a collective claim would in any event afflict an individual claimant. d.
+The CAT did not take into account the general principle that the court must do what it can with the evidence available when quantifying damages, and therefore allowed undoubted forensic difficulties and shortcomings in the likely availability of data to lead it to a conclusion that claimants with a real prospect of (some) success should be denied a trial by the only procedure available to them in practice. e.
+The CAT was wrong in law to regard respect for the compensatory principle as an essential element in the distribution of aggregate damages. f.
+By contrast I would not criticise the CAT, as did the Court of Appeal, for having conducted a trial within a trial at the certification stage. g.
+Nor do I regard it as inevitably premature for the CAT to have regard to a proposed distribution method at the certification stage.
+Common Issues
+Having decided that the merchant pass on issue was not a common issue, the CAT continued, at para 67: However, that in itself does not mean that this case is unsuitable for a CPO.
+There is no requirement that all the significant issues in the claims should be common issues, or indeed and by contrast with the position under the Federal Rules of Civil Procedure in the United States that the common issues should predominate over the individual issues.
+What is required, in the words of section 47(6) CA, is that the claims are nonetheless suitable to be brought in collective proceedings.
+Here, the applicant seeks to address the problem of pass through by submitting that the Tribunal can arrive at an aggregate award of damages, which would then be distributed to the class members.
+At the beginning of this passage the CAT correctly addresses the common issues requirement as a certification hurdle (under section 47B(6)).
+It had already correctly concluded that there was nonetheless another common issue (the overcharge issue), sufficient to surmount the common issues hurdle.
+But it then treated the assertion (which it later rejected) that the case was suitable for aggregate damages as a sort of substitute for Mr Merricks failure to show that the merchant pass on issue was a common issue.
+Had the CAT concluded (as the Court of Appeal held and which is not appealed) that the merchant pass on issue was a common issue, then this would, or should, have been a powerful factor in favour of certification, under rule 79(2)(a).
+As already noted it meant that both the main issues in the case were common issues.
+In my view the remainder of the balancing exercise conducted by the CAT never recovered from a starting point in which, far from being treated as a major plus factor, the presence of common issues was regarded as being at the low level sufficient only to surmount the eligibility hurdle.
+On any view, it was a sufficiently important error to require the assessment of suitability to be carried out again.
+Suitability for Aggregate Damages Not a Hurdle
+The CAT concluded its review of the suitability of the case for aggregate damages at para 78.
+There follows a section on Distribution on which Mr Merricks also failed (paras 79 to 91) and a section on Authorisation of the Class Representative on which he succeeded (paras 92 to 104).
+There is then the stark conclusion at para 141(a) that certification should be refused.
+There is no express balancing of factors for or against certification, and the reader is, as the parties both agreed, left to assume that the CAT regarded both the unsuitability of the case for aggregate damages and the failure of the distribution proposal to accord with the compensatory principle as each being, separately, enough to require certification to be refused.
+Mr Mark Hoskins QC for Mastercard submitted, correctly, that a tribunal charged with a multi factorial balancing exercise may perfectly properly regard one factor among many as sufficient to compel a particular outcome.
+But in such a case, and in particular where some factors are statutory hurdles and others are not, I consider it incumbent upon a tribunal which regards a factor which is not a statutory hurdle but is nonetheless decisive to make that clear in express terms.
+Suitability of a case for aggregate damages is plainly not a hurdle.
+It is just one of many factors relevant to suitability of the claims for collective proceedings under rule 79(2).
+It may well be that it was the CATs failure to recognise that the merchant pass on issue was a common issue that led to it treating the aggregate damages question as being of decisive importance.
+The two factors are closely linked because it was the forensic difficulties attending the resolution of the extent of merchant pass on which led the CAT to the conclusion that the case was unsuitable for aggregate damages.
+Relative Suitability
+I have set out at length why I regard the suitability test as being best understood in a relative rather than abstract sense.
+It is clear that the CAT did not make any comparison between collective and individual proceedings when assessing the forensic difficulties lying in the path of the resolution of the merchant pass on issue.
+In my view it is clear that they would have been equally formidable to a typical individual claimant, seeking compensation for increased retail prices over the sectors of the market in which he or she was accustomed to make purchases.
+That was Mr Harriss submission, and Mr Hoskins had no cogent answer to it.
+If those difficulties would have been insufficient to deny a trial to an individual claimant who could show an arguable case to have suffered some loss, they should not, in principle, have been sufficient to lead to a denial of certification for collective proceedings.
+Quantifying Damages the Tribunal must do what it can with the available
+evidence
+I regard the CATs failure to give effect to this basic principle of civil procedure as the most serious of the errors of law discernible in its judgment.
+I start by acknowledging the expertise of the CATs factual review of the difficulties.
+At the risk of over simplification it may be summarised in this way.
+Mr Merricks expert team proposed to deal with the merchant pass on issue by deriving a weighted average pass on percentage from a review of each relevant market sector during the whole of the Infringement Period.
+For that purpose they proposed to divide the retail market into some 11 sectors.
+But the CAT reviewed a report from RBB Economics entitled Cost pass through: theory, measurement, and potential policy implications prepared for the Office of Fair Trading in 2014, which concluded that, although in some sectors there was reliable data, in many others the data was incomplete and difficult to interpret.
+Further, although it might be that litigation between retailers and Mastercard might yield further data by way of disclosure in these proceedings, that would be unlikely to cover the earlier part of the Infringement Period and would involve a very burdensome and hugely expensive exercise.
+But the CATs assessment fell well short of suggesting that Mr Merricks would be unable at trial to deploy data sufficient to have a reasonable prospect of showing that the represented class had suffered any significant loss.
+The fact that data is likely to turn out to be incomplete and difficult to interpret, and that its assembly may involve burdensome and expensive processes of disclosure are not good reasons for a court or tribunal refusing a trial to an individual or to a large class who have a reasonable prospect of showing they have suffered some loss from an already established breach of statutory duty.
+In the context of suitability for collective proceedings or aggregate damages, it is no answer to say that members of the class can bring individual claims.
+They would face the same forensic difficulties in establishing merchant pass on, and insuperable funding obstacles on their own, litigating for small sums for which the cost of recovery would be disproportionately large.
+The incompleteness of data and the difficulties of interpreting what survives are frequent problems with which the civil courts and tribunals wrestle on a daily basis.
+The likely cost and burden of disclosure may well require skilled case management.
+But neither justifies the denial of practicable access to justice to a litigant or class of litigants who have a triable cause of action, merely because it will make quantification of their loss very difficult and expensive.
+The present case may well present difficulties of those kinds on a grand scale, but they are difficulties which the CAT is probably uniquely qualified to surmount.
+It may be that gaps in the data will in some instances be able to be bridged by techniques of extrapolation or interpolation, and that some gaps will be unbridgeable, so that nothing is recovered in relation to particular market sectors or for parts of the Infringement Period.
+Nonetheless it is a task which the CAT owes a duty to the represented class to carry out, as best it can with the evidence that eventually proves to be available.
+Nor can it be ignored that ADR may help, either in relation to narrowing the issues, or towards an overall settlement.
+The Court of Appeal responded to the same aspect of the CATs reasoning by concluding that it amounted to the imposition of an inappropriately high merits threshold at the certification stage.
+While I would agree that such a merits threshold should not be applied, beyond the strike out or summary judgment levels, I would prefer to regard this part of the CATs analysis as more directed to the issue about suitability for collective proceedings.
+But the boundary between issues as to the likely availability of data at trial and issues as to the merits is by no means easy to define, or to identify in practice.
+That is why I have described my reasons for concluding that the CAT erred in law as closely allied with those of the Court of Appeal.
+Compensatory principle not essential in distribution of aggregate damages
+I have already noted that section 47C of the Act radically alters the established common law compensatory principle by removing the requirement to assess individual loss in an aggregate damages case, and that nothing in the Act or the Rules puts it back again, for the purposes of distribution.
+The CAT took the opposite view.
+At para 79 it said that in a case where the quantification of aggregate damages takes no account of individual loss, then the process of distribution must, in some way, put it back.
+Speaking of aggregate damages determined in that way, the CAT said: Such an approach can only be permissible, in our view, if there is then a reasonable and practicable means of getting back to the calculation of individual compensation.
+At para 88 the CAT continued: . even if it were possible to determine with some broad degree of accuracy the weighted average for pass through and thus to estimate the aggregate loss for the class each year, it is the significance of the individual issues remaining which mean that it is impossible in this case to see how the payments to individuals could be determined on any reasonable basis. this application for over 46m claims to be pursued by collective proceedings would not result in damages being paid to those claimants in accordance with that governing principle at all.
+For reasons already given, I consider that this approach discloses a clear error in law.
+A central purpose of the power to award aggregate damages in collective proceedings is to avoid the need for individual assessment of loss.
+While there may be many cases in which some approximation towards individual loss may be achieved by a proposed distribution method, there will be some where the mechanics will be likely to be so difficult and disproportionate, eg because of the modest amounts likely to be recovered by individuals in a large class, that some other method may be more reasonable, fair and therefore more just.
+For that purpose the statutory scheme provides scope for members within the class to be heard about the proposed distribution method.
+In many cases the selection of the fairest method will best be left until the size of the class and the amount of the aggregate damages are known.
+Trial within a trial
+The Court of Appeal regarded the questioning and cross examination of Mr Merricks experts at the certification hearing as an inappropriate trial within a trial, indicative of the imposition of an overly high merits threshold.
+I would not criticise the CAT on that account.
+The CATs own questioning of the experts achieved both greater clarity and a considerable improvement in the quantification methodology then being proposed on Mr Merricks behalf, in a case of unprecedented size and complexity.
+It was by no means hostile or adversarial, and the limited cross examination by counsel for Mastercard was closely supervised by the CAT.
+It may well be that questioning and cross examination of experts both should and will be a rare occurrence at certification hearings.
+But the present case is in my view one where an exception was justified.
+Prematurity
+Finally, the Court of Appeal regarded any consideration of distribution proposals at, and for the purposes of, the certification stage as premature.
+I agree that this will generally be true, not least because issues about distribution mainly engage the interests of the represented class inter se, rather than those of the proposed defendant.
+But there may be cases where the issues as to suitability of the claims for collective proceedings will be better addressed when the whole of the representatives proposed scheme, including distribution proposals, are looked at in the round.
+In the present case there was nothing in the proposals for distribution I would therefore dismiss the appeal.
+I agree with the Court of Appeal that which militated against certification, and an inappropriate element in the distribution proposals would normally be better dealt with at a later stage.
+Disposition
+the application for a CPO should be remitted to the CAT.
+Lord Kerr presided at the hearing of this appeal, participated fully in the deliberations which followed the hearing and oversaw the preparation and discussion of the judgments.
+He agreed that the appeal should be dismissed for the reasons set out in this judgment prior to his retirement on 30 September 2020.
+There was a delay between the completion of the judgments and their being handed down to allow, in accordance with the Courts practice, the law reporters and counsel an opportunity to check the judgments for typographical errors and minor inaccuracies, and to enable a press summary of the judgments to be prepared.
+The judgments were accordingly circulated in draft to the parties legal advisers, with Lord Kerr and Lord Thomas recorded as agreeing with this judgment, and a consequent majority of three to two in favour of dismissing the appeal.
+After those administrative steps had been completed, and three days before judgment was due to be handed down, Lord Kerr sadly died.
+Following his death Lord Reed as President of the Supreme Court directed under section 43(4) of the Constitutional Reform Act 2005 that the panel for this appeal be re constituted as consisting of myself, Lord Sales, Lord Leggatt and Lord Thomas.
+Lord Sales and Lord Leggatt explain in their joint judgment why they agree that, in these circumstances, this appeal should be dismissed, notwithstanding their disagreement with the reasoning in this judgment.
+LORD SALES AND LORD LEGGATT:
+The Competition Appeal Tribunal (CAT) declined to certify these proceedings as a class action (or collective proceedings, in the language of the applicable legislation) for two distinct reasons: first, because in the CATs assessment the class of claims was not suitable for an aggregate award of damages and in those circumstances not suitable to be brought in collective proceedings; and second, because the class representative, Mr Merricks, did not propose to distribute any damages awarded in a way which would reflect the individual losses suffered by the members of the class.
+We agree with Lord Briggs and the Court of Appeal that the CATs second reason was unsound.
+However, in our view its first reason was legitimate.
+We consider that the CATs assessment that the claims were not suitable for an aggregate award of damages, and on that account not suitable to be brought in collective proceedings, was lawful and the Court of Appeal should not have interfered with it.
+We recognise, however, that ours is the minority view.
+Lord Kerr, well before his untimely death on 1 December 2020, had expressed his agreement with the final version of the judgment of Lord Briggs and would have been recorded as agreeing with it.
+Were the result of his death now to be that the court is left evenly divided, the case would have to be re argued before a different constitution.
+As well as being hugely wasteful of resources, this would not be a just outcome.
+It would be a consequence simply of the happenstance of Lord Kerrs death occurring during the interval between the completion of the judgments and the date when they were formally handed down: a circumstance which has no bearing on the just decision of this appeal.
+We therefore agree that the appeal should be dismissed.
+We nevertheless explain the reasons why, had our view been shared by the other members of the court, we would have allowed Mastercards appeal.
+Class actions
+A new class action regime was introduced in the United Kingdom in 2015 as part of a wider set of reforms of private actions for breaches of competition law.
+The central rationale for any class action regime is that it enables claimants to benefit from the same economies of scale as are already naturally enjoyed by the defendant as a single litigant.
+It does so by allowing numerous individual claims to be combined into a single claim brought on behalf of a class of persons.
+Such a procedural device is especially valuable where a defendants wrongful conduct has caused harm to many people but each individual claim is too small to justify the expense of a separate lawsuit.
+Without such a device what may in aggregate be very substantial harm is likely to go unredressed.
+As Judge Posner put it in Carnegie v Household International Inc (2004) 376 F 3d 656, 661, a decision of the US Seventh Circuit Court of Appeals: The realistic alternative to a class action is not 17m individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.
+This problem has historically impeded the bringing of private actions to seek redress for breaches of competition law in the UK.
+As the Government observed in explaining its decision to introduce a class action regime in this field: Breaches of competition law, such as price fixing, often involve very large numbers of people each losing a small amount, meaning it is not cost effective for any individual to bring a case to court.
+Allowing actions to be brought collectively would overcome this problem, allowing consumers and businesses to get back the money that is rightfully theirs as well as acting as a further deterrent to anyone thinking of breaking the law.
+See Private Actions in Competition Law: A consultation on options for reform government response (January 2013), p 6, para 2.
+Experience in other jurisdictions, however, has also shown that a class action regime presents risks.
+In particular, there is a risk that speculative actions may be brought claiming large amounts of damages even where there is no realistic prospect of recovering such damages, but where the size of the claims and the heavy costs of defending the action may be used as a threat to induce defendants to settle.
+In introducing the new regime in the UK, the Government was alert to this risk.
+Immediately after the passage quoted above, its response to the consultation on options for reform continued: Recognising the concerns raised that this could lead to frivolous or unmeritorious litigation, the Government is introducing a set of strong safeguards These strong safeguards were said to include strict judicial certification of cases so that only meritorious cases are taken forward.
+This appeal concerns the proper test for such certification and the nature and degree of the scrutiny which it is permissible for the CAT to undertake in operating this safeguard in the collective proceedings regime.
+Key features of the collective proceedings regime
+The regime was established by the Consumer Rights Act 2015, which made amendments to the Competition Act 1998 (the Act), and by new rules applicable to proceedings before the CAT: the Competition Appeal Tribunal Rules 2015 (SI 2015/1648).
+The amendments to the Act and the new rules (the CAT Rules) came into force at the same time on 1 October 2015.
+The regime is limited in scope to claims to which section 47A of the Act applies.
+These are, broadly speaking, claims for redress for loss or damage caused by an infringement or alleged infringement of competition law.
+Section 47B makes provision for collective proceedings whereby two or more such claims may be combined in one action brought before the CAT.
+Although claims to which section 47A applies can be brought in the CAT or in the courts, collective proceedings can only be brought in the CAT.
+It is clear from the terms of the Act and the CAT Rules that Parliament intended that the CAT should have a substantive role to play in deciding whether claims seeking redress for breaches of competition law may be pursued as collective proceedings and in actively managing such claims.
+The CAT is a specialist tribunal which is particularly well suited for this role.
+Each panel includes an economist and its legal members have extensive experience in the field.
+The CAT has considerable experience and expertise in assessing matters such as evidence from expert economists, economic data and the likely impact and practical workability of economic theories in addressing claims alleging anti competitive conduct.
+Group actions which enable a (potentially large) number of claimants to litigate common issues together, allowing them to share costs and obtain one judgment which is binding in relation to all their claims, have long been possible in England and Wales.
+Collective proceedings brought under section 47B of the Act, however, have two notable potential advantages for claimants compared to such group actions.
+They allow the legal rights of a class of people to be determined without the express consent of the members of the class; and they enable liability to be established and damages recovered without the need to prove that individual members of the class have suffered loss it being sufficient to show that loss has been suffered by the class viewed as a whole.
+Each of these features requires some amplification.
+Opt out collective proceedings
+Generally, legal proceedings may only be brought with the authority of the persons whose rights are sought to be enforced.
+Proceedings brought without such authority may be struck out and the person responsible for commencing them held liable to the defendant in damages.
+A significant innovation of the collective proceedings regime is the provision in section 47B(11) of the Act for opt out collective proceedings.
+These are proceedings brought by a representative on behalf of all the members of a class except any member who opts out by notifying the representative, in a manner and by a time specified, that his or her claim should not be included in the collective proceedings.
+This means that a person may become a claimant in collective proceedings without taking any affirmative step and, potentially, without even knowing of the existence of the proceedings and the fact that he or she is a claimant in them.
+This arrangement (which applies only to class members domiciled in the UK) is designed to facilitate access to legal redress for those who lack the awareness, capability or resolve required to take the positive step of opting in to legal proceedings.
+Aggregate damages
+A second major innovation (in terms of UK law) is effected by section 47C(2) of the Act, which provides: The tribunal may make an award of damages in collective proceedings without undertaking an assessment of the amount of damages recoverable in respect of the claim of each represented person.
+Such an award of damages is referred to in the CAT Rules as an aggregate award of damages: see rule 73(2).
+As pointed out by Professor Rachel Mulheron in an illuminating discussion of the present proceedings, there are two functions which a provision allowing damages to be awarded on an aggregate basis may in principle fulfil: see R Mulheron, Revisiting the Class Action Certification Matrix in Merricks v Mastercard Inc (2019) 30 Kings LJ 396, 412 417.
+The first concerns the quantification of loss.
+Where the liability of the defendant to the members of a class has been established, such a provision enables damages to be assessed by quantifying the loss suffered by the class as a whole, without the need to determine what loss each individual member of the class has suffered.
+This involves a departure from the normal compensatory principle, whereby the object of an award of damages for a civil wrong is to put the claimant (as an individual) in the same financial position as if the wrong had not occurred.
+It is clear that section 47C(2) is intended to serve this purpose.
+A provision for aggregate damages may, however, go further and serve an additional purpose.
+It may also permit liability to be established on a class wide basis without the need for individual members of the class to prove that they have suffered loss, even though this would otherwise be an essential element of their claim.
+As Professor Mulheron notes, the nature of a claim for a breach of competition law is that it constitutes a claim in tort for a breach of statutory duty.
+Under the general law such a claim is not actionable without proof of loss.
+In other words, a defendant commits no wrong and incurs no liability towards a claimant unless its anti competitive behaviour causes that claimant to suffer financial harm.
+An aggregate damages provision may dispense with this requirement by permitting liability towards all the members of a class to be established by proof that the class as a whole has suffered loss without the need to show that any individual member of the class has done so.
+The Canadian legislation referred to by Lord Briggs has not been interpreted as allowing liability, as well as the quantum of loss, to be established on a class wide basis.
+The British Columbia Class Proceedings Act 1996, section 29(1), provides that a court may make an aggregate monetary award if (amongst other requirements) no questions of fact or law other than those relating to the assessment of monetary relief remain to be determined .
+In Pro Sys Consultants Ltd v Microsoft Corpn [2013] SCC 57 (Microsoft), paras 128 134, the Supreme Court of Canada held that this provision could not be used to establish proof of loss where this is an essential element of proving liability.
+Rothstein J said (at para 133): The [British Columbia legislation] was not intended to allow a group to prove a claim that no individual could.
+Rather, an important objective of the [legislation] is to allow individuals who have provable individual claims to band together to make it more feasible to pursue their claims.
+The UK legislation is not limited in this way.
+Section 47C(2) of the Act contains no wording comparable to that of section 29(1)(b) of the British Columbia Class Proceedings Act, quoted above.
+Section 47C(2) is phrased in broad terms and is properly read as dispensing with the requirement to undertake an assessment of the amount of damages recoverable in respect of the claim of each represented person for all purposes antecedent to an award of damages, including proof of liability as well as the quantification of loss.
+Such an interpretation better accords both with the language used and with the statutory objective of facilitating the recovery of loss caused to consumers by anti competitive behaviour.
+Certification
+A class action procedure which has these features provides a potent means of achieving access to justice for consumers.
+But it is also capable of being misused.
+The ability to bring proceedings on behalf of what may be a very large class of persons without obtaining their active consent and to recover damages without the need to show individual loss presents risks of the kind already mentioned, as well as giving rise to substantial administrative burdens and litigation costs.
+The risk that the enormous leveraging effect which such a class action device creates may be used oppressively or unfairly is exacerbated by the opportunities that it provides for profit.
+As the Court of Appeal observed in the present case, the power to bring collective proceedings was obviously intended to facilitate a means of redress which could attract and be facilitated by litigation funding: [2019] EWCA Civ 674; [2019] Bus LR 3025, para 60.
+Those who fund litigation are, for the most part, commercial investors whose dominant interest is naturally to make money on their investment from the fruits of the litigation.
+As noted earlier, to ensure that the substantive legal advantages afforded by the collective proceedings regime are conferred only in appropriate cases, the regime contains a control mechanism of requiring collective proceedings to be certified by the CAT.
+Collective proceedings cannot be brought as of right and the CAT is given a broad discretion in deciding whether, and if so in what form, collective proceedings may be pursued.
+Thus, section 47B(4) of the Act provides that collective proceedings may be continued only if the CAT makes a collective proceedings order (CPO).
+Section 47B(5) lays down two necessary conditions for making a CPO: (i) the person who brings the proceedings must be a person who could be authorised by the CAT to act as the representative claimant in those proceedings, and (ii) the CPO is in respect of claims which are eligible for inclusion in collective proceedings.
+Pursuant to section 47B(6), claims are eligible for inclusion in collective proceedings only if two conditions are fulfilled.
+These are that the CAT considers that the claims (i) raise the same, similar or related issues of fact or law (the common issues requirement), and (ii) are suitable to be brought in collective proceedings (the suitability requirement).
+The meaning and scope of the suitability requirement is central to this appeal.
+The CAT rules
+Section 47B(1) provides that collective proceedings may be brought [s]ubject to the provisions of this Act and Tribunal rules.
+Rule 2(2) of the CAT Rules requires that the rules to be applied by the CAT are interpreted in accordance with the governing principles set out in rule 4.
+Rule 4 is in similar terms to Part 1 of the Civil Procedure Rules 1998, which requires courts to seek to give effect to the overriding objective of dealing with cases justly and at proportionate cost and also requires the active management of cases.
+Rule 4(2) provides that dealing with a case justly and at proportionate cost includes, so far as is practicable: ensuring that it is dealt with expeditiously and fairly; (d) (e) allotting to it an appropriate share of the Tribunals resources, while taking into account the need to allot resources to other cases;
+By virtue of section 47B(1) and the co ordinated introduction of the CAT Rules in tandem with the collective proceedings provisions in the Act, it is clear that the provisions in the Act and the rules are to be read together and as subject to the same general principles.
+In applying and exercising its powers under the collective proceedings provisions in the Act, the CAT must therefore seek to ensure that claims are dealt with justly and at proportionate cost, reading that objective in the light of the particular reforms effected by the primary legislation to which we have referred.
+Part 5 of the CAT Rules is concerned specifically with collective proceedings and collective settlements.
+Rule 75 deals with the contents of a collective proceedings claim form and provides that it shall contain, among other things, a summary of the basis on which it is contended that the criteria for certification and approval in rule 79 are satisfied (rule 75(3)(e)) and a statement of the relief sought including where applicable, an estimate of the amount claimed in damages, including whether an aggregate award of damages is sought, supported by an explanation of how that amount has been calculated (rule 75(3)(i)(i)).
+Rule 76(9) provides that as soon as practicable the CAT will hold a case management conference to give directions in relation to the application for a CPO.
+This recognises that collective proceedings are an unusual form of litigation which are likely to require careful management by the CAT and indicates that the CAT has a substantive role above and beyond being a mere rubber stamp for the issuing of collective proceedings.
+This is also recognised by the requirement in rule 77(1) to hear the parties before a CPO may be made.
+Rule 77(1) tracks section 47B(5) of the Act in specifying the two conditions which must be satisfied before the CAT may make a CPO the first being that the CAT considers that the proposed class representative is a person who could be authorised to act in that capacity in accordance with rule 78, and the second that the order is in respect of claims or parts of claims which are eligible for inclusion in collective proceedings in accordance with rule 79.
+Authorisation of the class representative
+Rule 78 deals with authorisation of the class representative.
+An applicant may be authorised to act as the class representative only if the CAT considers this to be just and reasonable (rule 78(1)).
+This is to be assessed by reference to a number of factors, including whether that person would fairly and adequately act in the interests of the class members (rule 78(2)(a)); if there is more than one applicant seeking authorisation to act as class representative, which of them would be the most suitable (rule 78(2)(c)); and whether the applicant will be able to pay the defendants recoverable costs if ordered to do so (rule 78(2)(d)).
+In determining whether the applicant would act fairly and adequately in the interests of the class members, the CAT is required to take into account all the circumstances, including whether the proposed class representative is a member of the class, and if so, its suitability to manage the proceedings (rule 78(3)(a)).
+It is clear that in these sub rules, the word suitable or suitability means suitable to fulfil the purpose which a class representative is intended to fulfil in the context of the collective proceedings regime.
+This is consistent with the meaning of the suitability requirement in rule 79, to which we now come.
+Eligibility of claims
+Rule 79 deals with the certification of claims as eligible for inclusion in collective proceedings.
+Lord Briggs has set out the full text.
+For present purposes, the following parts of it are relevant.
+Rule 79(1) states that the CAT may certify claims as eligible for inclusion in collective proceedings where, having regard to all the circumstances, it is satisfied that three conditions are fulfilled, namely that the proceedings are (a) brought on behalf of an identifiable class of persons; (b) raise common issues; and (c) are suitable to be brought in collective proceedings.
+Three points arise from this.
+First, the rule makes clear that the question of suitability is distinct from the question whether the claims raise common issues.
+Second, by using the phrase where it is satisfied rather than simply stating the three conditions, the rule emphasises that deciding whether the conditions are fulfilled is a matter for the judgment of the CAT.
+Third, the rule requires the CAT in making that decision to adopt a very wide frame of reference, in that it is to have regard to all the circumstances.
+Rule 79(2) reinforces these points.
+It is central to this appeal.
+It provides as follows: (2) In determining whether the claims are suitable to be brought in collective proceedings for the purposes of paragraph (1)(c), the Tribunal shall take into account all matters it thinks fit, including (a) whether collective proceedings are an appropriate means for the fair and efficient resolution of the common issues; (b) collective proceedings; the costs and the benefits of continuing the (c) whether any separate proceedings making claims of the same or a similar nature have already been commenced by members of the class; the size and the nature of the class; (d) (e) whether it is possible to determine in respect of any person whether that person is or is not a member of the class; (f) whether the claims are suitable for an aggregate award of damages; and (g) the availability of alternative dispute resolution and any other means of resolving the dispute, including the availability of redress through voluntary schemes whether approved by the [Competition and Markets Authority] under section 49C of the 1998 Act or otherwise.
+This provision focuses on the suitability requirement as a distinct condition for the making of a CPO.
+It again emphasises the substantive rather than merely checking role for the CAT in making the relevant judgment whether claims are suitable to be brought in collective proceedings and again emphasises the wide frame of reference to be adopted, by saying that the CAT shall take into account all matters it thinks fit, and providing a non exhaustive list of matters which the CAT might think fit to consider and place weight upon.
+The width of the frame of reference in itself shows that the CATs judgment as to suitability is central, since the very wide range of matters to which the CAT might have regard, the disparity in their nature and their incommensurability means that there may often be wide scope for reasonable differences of view about what relevance or weight should be given to what factors and what overall conclusion should be drawn on the suitability issue.
+The Act and the CAT Rules identify the CAT as the body whose judgment matters for this purpose.
+Rule 79(3) identifies additional factors to those set out in rule 79(2) which the CAT may take into account if it thinks fit in deciding whether collective proceedings should be opt in or opt out proceedings, including the strength of the claims.
+This indicates that the strength of the claims is likely to be a matter of particular significance in determining whether proceedings are suitable to be brought as opt out proceedings, but it does not give rise to an inference that the strength of the claims can never be relevant for the purposes of rule 79(2).
+The explicit language used in rule 79(2) that the CAT should take into account all matters it thinks fit allows it to do so in an appropriate case.
+Clearly, if the CAT thinks it relevant when deciding on suitability to have regard in any way to the strength of the claims, it has to bear in mind that it would be wholly inappropriate at the preliminary stage of deciding whether claims may proceed by way of collective proceedings to hold a mini trial.
+Furthermore, since the object of the collective proceedings regime is to facilitate access to justice for those with small but potentially meritorious claims, it would also be wrong in principle to make any consideration of the merits of the claims at the CPO stage excessively demanding, thereby preventing claimants from having enhanced access to the judicial process under the collective proceedings regime without a sufficiently good reason.
+This point is further underlined by rule 79(4), which provides that a strike out application under rule 41 or a summary judgment application under rule 43 may be heard at the hearing of an application for a CPO.
+The CAT has the usual powers to strike out a claim, including if it considers that there are no reasonable grounds for making it (rule 41), and to give summary judgment for a claimant or a defendant if it considers that either of them has no real prospect of success (rule 43).
+Given these powers, the suitability requirement should not be interpreted as involving a test of the substantive merits of the claims which is comparable to but higher than the test that would be applicable under these rules.
+The suitability requirement
+A critical issue on this appeal is: what is the suitability requirement concerned with? What makes claims suitable to be brought in collective proceedings, over and above the fact that they raise common issues?
+In our view, the word suitable in this context means suitable to be grouped together and determined collectively in accordance with the regime established by the Act and the CAT Rules.
+Applying this criterion requires the tribunal to focus on the special features of this regime and the objects which collective proceedings under the regime are intended to fulfil.
+This includes consideration of whether collective proceedings offer a reasonable prospect of achieving a just outcome.
+It also calls for an assessment of proportionality: is combining these claims and determining them collectively in accordance with the collective proceedings regime likely to achieve the fair determination of the claims at proportionate cost?
+If other forms of proceeding are in contemplation, either by way of a group action or some different collective proceeding, it may be relevant to assess which form of proceeding is better suited to securing justice at proportionate cost when deciding whether, overall, the proceedings for which certification is sought are suitable.
+We cannot agree with Lord Briggs, however, that the suitability requirement is relative and solely a question of whether claims are suitable to be brought in collective proceedings rather than individual proceedings.
+First of all, this is not what the Act says.
+If the intention had been to make the test inherently comparative, it would have been easy to do so by using language such as that used in the British Columbia Class Proceedings Act, section 4(1)(d), which imposes a test of whether a class proceeding would be the preferable procedure.
+As Lord Briggs observes, the use of that term implicitly poses the question preferable to what?.
+By contrast, the UK legislature has not chosen to formulate the criterion as one of comparative merit or suitability.
+Second, it does not follow that, because collective proceedings are an alternative to conventional proceedings brought by or on behalf of individuals, they are intended to be available in any case where they would be less unsatisfactory than such individual proceedings.
+As we have noted, collective proceedings confer substantial legal advantages on claimants and burdens on defendants which are capable of being exploited opportunistically.
+In the absence of wording which says so, we cannot accept that demonstrating that the members of the proposed class would face greater difficulties pursuing their claims individually must be regarded as sufficient to justify allowing their claims to be brought as a collective proceeding, with the advantages that this confers.
+Such an approach would very significantly diminish the role and utility of the certification safeguard.
+Third, in so far as comparisons are relevant, the choice is not in any case a binary one.
+The question is not whether some form of collective proceeding is preferable to individual proceedings; it is whether the claims sought to be included in the collective proceedings which the tribunal is asked to certify are suitable to be combined in such proceedings.
+Answering that question in the negative does not mean that there is no other class of claims which is suitable to be brought as collective proceedings.
+There may well be.
+Suitability for aggregate damages
+In determining whether the claims sought to be combined in collective proceedings are suitable to be brought in such proceedings, one of the matters specifically identified in rule 79(2) is whether the claims are suitable for an aggregate award of damages.
+In some cases this is likely to be a critical consideration.
+As we noted earlier, the potential for an aggregate award of damages is a major innovative feature of the collective proceedings regime which, in cases where it is available, has substantive legal effects.
+Such an award dispenses not only with the legal requirement to calculate damages on an individual basis but also with the legal requirement for a claimant to prove individual loss in order to establish liability.
+Contrary to the position spelled out by Rothstein J in the Microsoft case (quoted earlier), it allows a group to prove a claim even though individuals within the group might well not be able to do so.
+In our view, suitable has a similar meaning in considering whether the claims are suitable for an aggregate award of damages to its meaning in considering the more general question of whether the claims are suitable to be brought in collective proceedings.
+In determining whether a class of claims is suitable for an aggregate award of damages, the focus is on whether the claims are suitable to be grouped together as a unit for the purpose of proving and assessing loss, justly and at proportionate cost.
+This calls for an assessment of whether there is, or is likely to be if the proceedings are authorised to continue as collective proceedings, a method available which can be used to assess loss suffered by the class as a whole with a reasonable degree of accuracy.
+In making this judgment, the CAT will naturally have in mind the broad axe principle emphasised by Lord Briggs.
+The common law recognises that, even where the loss suffered by a claimant is purely financial and is in principle a precise sum of money, determining this sum accurately may be practically impossible or achievable only at disproportionate cost.
+The law does not require unreasonable precision from the claimant: see eg Sainsburys Supermarkets Ltd v Visa Europe Services Llc [2020] UKSC 24; [2020] Bus LR 1196, paras 217 223.
+At the same time, justice to a defendant requires that it should not be ordered to pay damages which are not based on a reasonable estimate of loss (all the more so if what may be a very large sum of damages is being awarded without requiring the proof of individual loss which is normally a condition of liability).
+The object at the certification stage is not of course to quantify the loss suffered by the proposed class.
+But in order to be satisfied that the proposed class of claims is suitable for an aggregate award of damages, the CAT is entitled to require the class representative to demonstrate that there is a method which is capable of establishing loss in a reasonable and just way, and at proportionate cost, on a class wide basis.
+Again, we do not accept that the test of suitability is relative.
+Showing that claims would be difficult or impossible to prove or quantify if pursued individually does not by itself make them suitable for an award of aggregate damages, let alone establish whether the class of claims for which certification is sought is suitable for such an award.
+These proceedings
+The number of claims sought to be included in these proceedings is by any standard vast.
+Mr Merricks (the applicant) applied to the CAT to make a CPO in respect of the following class: Individuals who between 22 May 1992 and 21 June 2008 purchased goods and/or services from businesses selling in the UK that accepted Mastercard cards, at a time at which those individuals were both (1) resident in the UK for a continuous period of at least three months, and (2) aged 16 years or over.
+It is to be noted that the class is not limited to individuals who, at any time during the specified 16 year period, possessed or used a Mastercard credit or debit card: it includes anyone (resident in the UK for at least three months and aged 16 or over at any relevant time) who purchased any goods or services from any business selling in the UK that accepted Mastercard cards during this entire period.
+The number of such businesses rose from about 500,000 at the start of the period to about 800,000 at the end.
+These businesses (the merchants) spanned the whole of the UK economy and operated in very disparate markets.
+In consequence, the class in respect of which the CPO was sought was, in substance, the whole of the adult consumer population of the UK during the 16 year claim period, which was about 46.2m people.
+As described in more detail by Lord Briggs, the proposed claim relies on a decision of the European Commission in December 2007 as a basis for contending that the merchant service charge paid on transactions by the merchants who participated in the Mastercard payment card scheme was, throughout the claim period, higher than it should have been as a result of a breach by Mastercard of competition law.
+The breach involved fixing a default fee called the multilateral interchange fee (MIF) charged (unless otherwise agreed) by the cardholders bank to the merchants bank on payments made using the card.
+This fee was included in the merchant service charge deducted from payments by the merchants bank.
+It typically accounted for the vast majority of the service charge (eg 1% out of a total charge of 1.3% of a credit card payment).
+The allegation made by the applicant was that the merchants had passed on the element of unlawful overcharge included in the merchant service charge to all their customers (whether those customers used a Mastercard card or not) by charging higher prices for goods or services than they would otherwise have done.
+The present proceedings were brought on an opt out basis and claimed (as the only relief sought) an aggregate award of damages in a sum estimated in the collective proceedings claim form at around 14 billion.
+The proposed method of establishing loss
+At the hearing of the application for a CPO, the applicant adduced expert evidence to explain the basis for the class action and how he proposed to establish that the class as a whole had suffered loss and the amount of such loss if the action was allowed to proceed.
+The experts methodology involved three steps.
+The first step was to calculate the total value of payments made by customers using Mastercard cards in the UK in each year of the claim period.
+This has been referred to as the volume of commerce.
+It should be possible to calculate the volume of commerce using Mastercards own records.
+The second step would be to estimate the amount by which the merchant service charge paid by merchants on the volume of commerce was higher than it would otherwise have been because of the overcharge resulting from the MIF.
+There were in fact a number of different MIFs and these changed over the 16 years of the claim period.
+It was not in dispute, however, that the amount of the overcharge was capable of assessment, as the MIFs which applied at different times were known and it was common ground that 100% of the MIFs was passed on to the merchants through the merchant service charge.
+The third step in the experts proposed method was to estimate the extent to which the overcharge was passed on by merchants to their customers in the form of increased retail prices.
+It was in relation to this step that problems arose.
+The extent to which merchants might have passed on the overcharge to their customers rather than absorbing it themselves will depend on the markets in which they operated and on their own business strategies: see Sainsburys Supermarkets Ltd v Visa Europe Services Llc; Sainsburys Supermarkets Ltd v Mastercard Inc [2020] UKSC 24; [2020] Bus LR 1196, para 205.
+Thus, the experts instructed by the applicant recognised that there will not have been one common rate of pass on which was applied by merchants across the board.
+Their proposed approach was to arrive at a global figure by calculating weighted average rates of pass on over time for different sectors of the economy.
+They produced a table which broke down the UK economy into 11 broad sectors: food and drink, mixed business, clothing, household, other retailers, motoring, entertainment, hotels, travel, financial and other services.
+As the experts accepted, however, when questioned by the tribunal, and as the CAT found, within each of these broad sectors there is a wide variety of businesses which may have had quite different rates of pass on.
+For example, the motoring sector covered fuel, new vehicle sales, car rental, and garage repair.
+In food and drink, the extent of pass on by major supermarket chains may be significantly different from the rate for local greengrocers, butchers etc.
+It was also accepted that rates of pass on may have varied geographically across the UK, as well as over time during the 16 year claim period.
+The antiquity of the claim period beginning over 25 years ago and ending in 2008 exacerbated the difficulties, particularly in relation to the availability of data.
+The CATs decision
+At para 57 of its judgment the CAT correctly observed that an application for a CPO is not a mini trial and that the applicant does not have to establish his case in anything like the way he would at trial.
+However, it noted that the applicant had to do more than show that he had an arguable case on the pleadings, meaning that he had also to satisfy the requirement that the claims of all the enormous class of persons whom the applicant was seeking to represent were suitable to be brought as a collective proceeding.
+The CAT observed that, although collective proceedings on an opt out basis can bring great benefits for the class members which could not otherwise be achieved, like other substantial competition damages claims such proceedings can be very burdensome and expensive for defendants and under section 47B(6) it is the CATs role to scrutinise an application for a CPO to ensure that only appropriate cases proceed.
+In considering the expert evidence relied on by the applicant to seek to satisfy the CAT that the claims were suitable for determination in collective proceedings, the CAT decided that the approach it should adopt could appropriately be drawn from the following passage in the judgment of Rothstein J in the Supreme Court of Canada in the Microsoft case (at para 118): the expert methodology must be sufficiently credible or plausible to establish some basis in fact for the commonality requirement.
+This means that the methodology must offer a realistic prospect of establishing loss on a class wide basis so that, if the overcharge is eventually established at the trial of the common issues, there is a means by which to demonstrate that it is common to the class (ie that passing on has occurred).
+The methodology cannot be purely theoretical or hypothetical, but must be grounded in the facts of the particular case in question.
+There must be some evidence of the availability of the data to which the methodology is to be applied.
+Neither party sought to argue before the CAT that this was not an appropriate approach for the CAT to adopt (see paras 58 59 of the CATs judgment).
+It was not in dispute that the methodology identified by the applicants experts was a valid theoretical approach to estimating loss on a class wide basis for the class of over 46m people represented by the applicant.
+The argument before the CAT turned on the availability of the data which would be required to enable the methodology to be applied in practice.
+As mentioned, the method proposed by the experts relied on being able to estimate a weighted average rate of pass on of the relevant overcharge by merchants to their customers for each sector of the economy during each of the 16 years of the claim period.
+The experts expressed the view that it should be possible to acquire the data necessary for this analysis from a combination of three sources: (a) information derived from claims which have been brought against Mastercard by retailers in a variety of sectors; (b) disclosure from third parties; and (c) publicly available data.
+The CAT considered each of these proposed sources and found that they could not realistically be expected to yield sufficient data to enable the claimants methodology to be applied on a sufficiently sound basis to calculate the loss sustained by the class as a whole (paras 69 78).
+The first potential source of data was information derived from claims brought by retailers against Mastercard.
+However, these claims relate to periods commencing in 2006, so there is minimal overlap with the claim period in the present proceedings.
+The CAT found that [i]t would be impossible to extrapolate back from any findings or expert analyses of pass through in around 2006 to derive meaningful figures for much of the claims period in the present action (para 73).
+The CAT was clearly entitled to make this assessment on the evidence before it.
+We would add that still less could it be thought that such information could provide a basis for extrapolation to allow any meaningful or reliable assessment to be made regarding the rate of pass on in the many sectors and sub sectors of the UK economy which are not represented in the retailer claims brought against Mastercard.
+As regards the second potential source, the CAT noted that in theory requests could be made for disclosure of evidence from third party retailers in the various different sectors of the economy to gather data to calculate their various rates of pass on at relevant times.
+But it observed that in view of the number of markets to be considered, the long period involved, and the wide range of data required to arrive at a meaningful estimate, this would be a very burdensome and hugely expensive exercise; merchants could be expected to resist providing such information; the costs budget filed with the application for the CPO made no provision for the cost of this exercise; and in sum, in the CATs view, such extensive third party disclosure is wholly impractical as a way forward (para 74).
+Again, the CAT was clearly entitled to make this assessment on the evidence before it.
+As to published data, a report by RBB Economics relied on by the experts itself made clear that the publicly available data were incomplete and difficult to interpret.
+Apart from that report, the CAT noted that no real attempt appears to have been made to consider what data are available for each of the broad sectors over the relevant period (para 75).
+Again, on the material before it, the CAT was clearly entitled to conclude that it was not satisfied that there were sufficient publicly available data to allow the proposed methodology to be implemented.
+The CAT stated its conclusion on the question whether the claims were suitable for an award of aggregate damages at paras 77 78 of its judgment: 77.
+We accept that in theory calculation of global loss through a weighted average pass through, as explained in the evidence and as summarised above, is methodologically sound.
+But making every allowance for the need to estimate, extrapolate and adopt reasonable assumptions, to apply that method across virtually the entire UK retail sector over a period of 16 years is a hugely complex exercise requiring access to a wide range of data.
+We certainly would not expect that analysis to be carried out for the purpose of a CPO application, but a proper effort would have had to be made to determine whether it is practicable by ascertaining what data is reasonably available.
+Given the massive size of the claim, a difference of even 10% in the average pass through rate makes a very substantial difference in financial terms. 78.
+Accordingly, applying the Microsoft test we are unpersuaded on the material before us that there is sufficient data available for this methodology to be applied on a sufficiently sound basis.
+It follows that we are not satisfied, and indeed very much doubt, that the claims are suitable for an aggregate award of damages: see rule 79(2)(f).
+The CAT also gave a second and separate reason for concluding that the claims were not suitable to be brought in collective proceedings.
+This was that, even if the total loss to the whole class was capable of calculation in the manner proposed, there was no reasonable and practicable means of estimating the loss suffered by each individual claimant.
+The experts accepted that this was so.
+The method put forward by the applicant for distributing any award of aggregate damages was to divide any damages awarded in respect of each year of the claim period equally between each member of the class for that year.
+The CAT did not consider this approach acceptable, stating (at para 88): The governing principle of damages for breach of competition law is restoration of the claimants to the position they would have been in but for the breach.
+The restoration will often be imprecise and may have to be based on broad estimates.
+But this application for over 46m claims to be pursued by collective proceedings would not result in damages being paid to those claimants in accordance with that governing principle at all.
+The CAT went on to consider whether the applicant met the requirements for authorisation to act as the class representative and concluded that he did.
+However, since, in the CATs view, the claims were not suitable to be brought in collective proceedings, the application for a CPO was dismissed.
+The Court of Appeals decision
+When the applicant sought to appeal from the CATs decision, a preliminary issue arose as to whether the Court of Appeal had jurisdiction to entertain an appeal.
+Under section 49(1A)(a) of the Act an appeal lies on a point of law from a decision of the CAT in collective proceedings as to the award of damages.
+The Court of Appeal held that the decision of the CAT to refuse to make a CPO fell within this provision because it had the effect of barring the claim to an award of aggregate damages under section 47C(2), which was the only type of relief sought in the collective proceedings and is a unique remedy not otherwise obtainable: see [2018] EWCA Civ 2527; [2019] Bus LR 1287, paras 20, 27, 28.
+On the substantive appeal, the Court of Appeal decided that both reasons given by the CAT for refusing to make a CPO involved errors of law.
+On the question whether the claims were suitable to be brought in collective proceedings (and, in particular, for an aggregate award of damages), the Court of Appeal considered that the approach taken by the CAT to the expert evidence was based on a misdirection as to the correct test to be applied.
+In the Court of Appeals view, in assessing the availability of data to establish a claim for aggregate damages, the CAT had demanded too much of the applicant at the certification stage: [2019] EWCA Civ 674; [2019] Bus LR 3025, paras 48 54.
+On the question of distribution, the Court of Appeal considered both that it was premature for the CAT to take account of the proposed method of distributing any aggregate award of damages at all at the certification stage and that the CAT was wrong to regard it as a requirement that any award must be distributed in a way which corresponds, even if only approximately, to individual loss: see paras 56 62.
+Mastercard on this further appeal contests the conclusion reached by the Court of Appeal on each of these two issues.
+The distribution issue
+It is convenient to deal with the distribution issue first.
+We can do so briefly, as we agree with Lord Briggs on this issue.
+The dispute is a narrow one, as Mastercard accepts that there is no legal requirement that an award of aggregate damages must be distributed to class members in a way which attempts to compensate them for their individual losses; and the applicant accepts that the CAT is entitled to treat the way in which it is proposed that an award of aggregate damages should be distributed as a relevant factor when considering whether the suitability requirement is satisfied in order for a CPO to be made.
+But the applicant objects that the CAT went further than this and treated the existence of a significant degree of correspondence between the proposed distribution and losses suffered by individuals as a mandatory legal requirement which must be met before a CPO can be made.
+In our view, Mastercard was right to accept the first point.
+We think it clear that, under the legislative scheme, where an aggregate award of damages is made, that award is the means by which compensation is achieved: that is to say, by providing compensation for loss suffered by the class of represented persons as a whole.
+As discussed earlier, section 47C of the Act dispenses with the requirement that would ordinarily apply to undertake an assessment of the losses suffered by individual members of the class.
+How such an award of damages is distributed is a further and separate question.
+There is no necessity at that stage to try to estimate loss: only to adopt a method of distribution which is fair.
+Other things being equal, a fair method will no doubt be one which gives a larger share of the award of damages to someone who can be shown to have suffered a greater individual loss.
+But it may be impractical or disproportionate to adopt such a method of distribution, particularly where the size of the class is large and the amount of damages awarded small, considered on a per capita basis.
+We can see nothing wrong in principle with a conclusion that the fairest method of distribution is, in the circumstances of a particular case, an equal division among all the members of the class (or, as proposed by the applicant in this case, an equal division among all the relevant class members of the damages referable to each year of the claim period).
+Like Lord Briggs, we do not think it is necessarily premature to have regard at the certification stage to any proposal made by the applicant provisional though it would necessarily be as to how an aggregate award of damages would be distributed among the class of persons represented.
+However, the fact that it is not practicable and reasonable, and therefore not proposed, to adopt a method of distribution which reflects individual loss is not a reason which requires the CAT to refuse to make a CPO as a matter of law.
+Contrary to Mastercards submission, we think it clear that the CAT did consider that it is only permissible to make an award of aggregate damages if there is a reasonable and practicable means of distributing the damages to the members of the class in a way which seeks to compensate them for their individual losses.
+That was an error of law on the part of the CAT.
+There was nothing legally objectionable about the approach to the distribution of damages proposed by the applicant.
+This ground of the CATs decision to decline to make a CPO therefore cannot be sustained.
+That error does not, however, affect the separate reason given by the CAT for its decision: namely, that it was not satisfied that the claims sought to be included in the proceedings were suitable for an aggregate award of damages.
+In relation to that conclusion, two questions arise: (i) did the CAT err in law in reaching that conclusion; and (ii) if not, was the CAT entitled on that basis to decide that the claims were not suitable to be brought in collective proceedings?
+Suitability for aggregate damages
+As noted, in determining whether the class of claims sought to be brought in these proceedings is suitable for an award of aggregate damages, the CAT adopted a test articulated by the Supreme Court of Canada in the Microsoft case (quoted at para 135 above).
+In the relevant passage (at para 118 of the judgment) Rothstein J was not addressing the question of the suitability of claims for an aggregate award of damages (which is not a criterion under the applicable Canadian legislation), but whether the issue of loss was capable of being resolved on a common basis and was therefore appropriate for certification as a common issue.
+For this purpose, it was not necessary for the class representative at the certification stage to quantify the damages in question; it was sufficient to demonstrate that there was a method capable of doing so on a class wide basis.
+What this requirement meant was elaborated in para 118 of the judgment.
+Although it was formulated in a different legislative context, the CAT was in our view entitled to treat the Microsoft test as providing an appropriate standard to apply for the purpose of determining the suitability of a class of claims for an aggregate award of damages under section 47C(2) of the Act.
+Not only did the Court of Appeal endorse that approach (at para 40), but it has been common ground between the parties at all levels in the CAT, in the Court of Appeal and in this court that it was appropriate for the CAT to apply this test.
+In any event, it seems to us to provide sensible guidance as to how to approach the question whether a class of claims is suitable to be grouped together for the purpose of estimating loss.
+The approach stated by Rothstein J reflects the broad axe principle, and adoption of it in the present context gives appropriate recognition to that principle in the context of the collective proceedings regime in the Act.
+The principle cannot be invoked as a way of circumventing the suitability requirement in the Act and the CAT Rules.
+If the applicant could not show that there was a realistic prospect that his experts proposed methodology would be capable of application in a reasonable and fair manner across the whole width of the proposed class, then (i) there would be a significant risk that a claim of this magnitude could unfairly be held over Mastercards head in terrorem to extract a substantial settlement payment without a proper basis for it; (ii) there would be a significant risk that, if carried forward towards trial, the collective proceeding, as framed by the CPO obtained at the outset, would at some stage run into the sand and be found not to be viable, so that it would have given rise to a great waste of expense and resources for no good effect; (iii) the risk referred to in (ii) would not just relate to potential waste of the resources of the defendant, but also to waste of the resources of the CAT, which could be better allocated elsewhere (see rule 4(2)(e)); and (iv) there would be a significant risk that, if the methodology were applied to the class at trial on the basis of inadequate data and unjustified extrapolations from available data sets, the outcome would be unjust and one in which one could have no confidence, because of the margin for error in calculating pass through rates for all sectors of the economy over a 16 year period and the potentially very substantial effects of such errors being made, by reason of the large sums being claimed (the point made in para 77 of the CATs judgment).
+We accordingly consider that the Court of Appeal, in agreement with the parties and the CAT, was correct to hold that what the applicant in this case had to do was to satisfy the CAT that the expert methodology was capable of assessing the level of pass on to the represented class and that there was, or was likely to be, data available to operate that methodology (para 44).
+The Court of Appeals criticisms
+We disagree, however, with the Court of Appeals view that the CAT did not in fact apply this test.
+There seem to us in the Court of Appeals judgment to be three particular criticisms made of the CATs approach.
+One is that the CAT wrongly required the applicant to establish more than a reasonably arguable case (para 52) or to be satisfied that the collective claim has more than a real prospect of success (paras 44 and 54).
+In our view, this criticism is misplaced in that it treats the assessment of whether the claims in question are suitable for an aggregate award of damages as if it were an assessment of whether the claims are of sufficient merit to survive a strike out application.
+However, as we have emphasised (and understand to be common ground between the parties on this appeal), the eligibility requirements including the question of suitability for aggregate damages are directed to ascertaining whether it is appropriate to combine individual claims into collective proceedings and not to the question whether the claims are sufficiently arguable as a matter of their substantive merits to be allowed to proceed.
+In particular, in relation to aggregate damages, the question for the CAT was not whether the claims had a real prospect of success; it was whether the proposed methodology offered a realistic prospect of establishing loss on a class wide basis.
+This turned, in the context of this case, on whether there was, or was likely to be, data available to operate that methodology (as the Court of Appeal had itself recognised at para 44).
+That was the question which the CAT addressed.
+We therefore think it clear that the CAT asked itself, and answered, the correct question and that the CAT was right to say (at para 57 of its judgment) that the applicant had to do more than simply show that he has an arguable case on the pleadings, as if, for example, he was facing an application to strike out.
+The second criticism made by the Court of Appeal was that the CAT had, in effect, carried out a form of mini trial, which involved cross examination of the applicants experts at a pre disclosure stage in the proceedings about their ability to prove the claim at trial by reference to sources of evidence which they had identified but had not yet been able fully to analyse or assess (para 52).
+It was said that the certification hearing therefore exposed the claim to a more vigorous process of examination than would have taken place at a strike out application (para 53).
+We have already explained why we consider the comparison with a strike out application to have been misplaced.
+We nevertheless agree with the Court of Appeal that an application for a CPO should not involve a mini trial.
+The CAT expressly recognised this at para 57 of its judgment and we do not accept that it failed to follow the direction that it expressly gave itself.
+In particular, we can see nothing wrong in principle, where the credibility or capability of expert methodology is of importance as it was here, with asking questions of the experts in order to clarify and better understand their proposed approach.
+That does not amount to anything approaching a mini trial.
+That is what occurred at the hearing before the CAT in this case.
+The consideration of the experts evidence by the CAT was not adversarial.
+The questioning was led by the tribunal, not Mastercard.
+To the extent that counsel for Mastercard was permitted to ask questions, it was only by way of clarification rather than by way of challenge to their evidence.
+Mastercard did not submit any expert evidence.
+The CAT was not engaged in weighing up competing expert evidence nor in seeking to resolve any disputed points of fact or expert opinion; it merely sought to understand and clarify the methodology proposed by the experts and the availability of the data necessary to apply that methodology.
+The tribunals questions gave the experts the opportunity to explain and expand on their proposed method.
+Providing this opportunity was an advantage, not a disadvantage, to the applicant, as is apparent from para 76 of the CATs judgment where the CAT observed that the methodology put forward by the experts in their oral evidence, in response to the tribunals questioning, is considerably more sophisticated and nuanced than that set out, rather briefly, in their experts report.
+Indeed, for the purposes of his submissions before the CAT, the Court of Appeal and in this court, the applicant positively sought to rely on the contents of the evidence given by his experts as amplified by their oral explanations in answers given at the hearing before the CAT.
+There was in these circumstances no procedural impropriety or error of law in the CATs approach.
+The third criticism made by the Court of Appeal was that the CAT demanded too much in terms of the availability of data at what was still an early stage of the proceedings.
+It is said that the experts had identified expected sources of data and it was not appropriate at the certification stage to require the proposed representative and his experts to specify in detail what data would be available for each of the relevant retail sectors in respect of the infringement period (para 51).
+In our view, this criticism is also misplaced.
+The CAT did not require the applicant or his experts to specify in detail what data would be available for each of the relevant retail sectors in respect of the infringement period.
+It applied an appropriately low threshold of whether there was evidence that data were available which could offer a realistic prospect of the applicant being able to apply his proposed economic methodology across the whole range, or substantially the whole range, of the class claim.
+On the evidence before it, the CAT was entitled to make the assessment at paras 69 75 of its judgment that the applicant had failed to show that appropriate data were or were likely to be available across that range such as would mean that his proposed methodology could be applied in a meaningful or reasonable way to make an aggregate award of damages assessed on a class wide basis: see paras 138 141 above.
+The Court of Appeal also suggested that, if it later transpired that the applicant was unable to access sufficient data to enable the experts method of calculating the rate of pass on to be performed, the CPO could be revoked; and that a decision of that kind is much more appropriate to be taken once the pleadings, disclosure and expert evidence are complete and the court is dealing with reality rather than conjecture (para 53).
+We do not consider this a permissible approach.
+The fact that there is a power to vary or revoke a CPO at any time under section 47B(9) of the Act does not relieve the CAT of the obligation only to make a CPO if it considers that the statutory conditions are satisfied and not otherwise.
+The CAT may not make a CPO on a speculative basis, in the hope that the claims might later become suitable to be brought as collective proceedings but that, if they do not, the order can be revoked, no doubt after a great deal of resources have been expended on the litigation.
+The applicant applied in this court for permission to adduce additional evidence regarding the availability of data to that adduced before the CAT.
+We would refuse that application.
+Any such evidence is not capable of disclosing a legal error on the part of the CAT, which was obliged to make its decision on the basis of the evidence before it.
+In any case, having looked at the additional material as we were invited to do by Mr Harris QC on behalf of the applicant, we are not persuaded that it shows a realistic possibility of filling the large gaps in the available data that were identified by the CAT.
+In our view, the CATs decision that it was not satisfied that the claims sought to be brought as collective proceedings were suitable for an aggregate award of damages cannot be impugned as unlawful.
+Suitability for collective proceedings
+If, as we consider, that decision was not wrong in law, then, in the circumstances of this case, it follows that the CAT was also entitled to conclude that the claims were not suitable to be brought in collective proceedings.
+As mentioned earlier, an aggregate award of damages under section 47C(2) of the Act was the only type of relief sought in these proceedings.
+The applicant has not suggested that it would be feasible or practicable to estimate the losses suffered by members of the proposed class individually.
+Indeed, the proposed method of distributing any damages recovered was founded on the premise that there is no reasonable or practicable means of establishing loss on an individual basis (see eg para 91 of the CATs judgment).
+In these circumstances, if the claims are not suitable for an aggregate award of damages, it is common ground that they are not suitable for any award of damages (or other relief).
+There is accordingly no basis on which the proceedings as they have been framed could properly be continued.
+Lord Briggs has emphasised that whether the claims are suitable for an aggregate award of damages is only one factor in the list of matters identified in rule 79(2) as potentially relevant to the issue of overall suitability.
+He criticises the CAT for treating this particular factor as if it were a hurdle rather than merely one factor to be weighed in the balance along with others in determining whether the claims are suitable to be brought in collective proceedings.
+This is not an argument which the applicant has made and we are not able to agree with it.
+It was not incumbent on the CAT to treat the factors in rule 79(2) (or for that matter the factors in rule 4) as a check list which it had to work through and address one by one.
+The position is the same as where a court makes a procedural decision under the Civil Procedure Rules and has to comply with the overriding objective in CPR Part 1: see Khrapunov v JSC BTA Bank [2018] EWCA Civ 819, para 46.
+Furthermore, while the structure of rule 79 makes it clear that satisfying the CAT that the claims are suitable for an aggregate award of damages is not a separate hurdle or pre condition for certifying claims as eligible for inclusion in collective proceedings, that does not prevent this factor from being in practice decisive in the circumstances of a particular case, given the way in which the proceedings have been framed.
+For the reasons indicated, that was the case here.
+For the same reasons, the CATs error (as we agree that it was) in failing to recognise that whether or to what extent merchants passed on the MIFs to their customers was a common issue did not affect its analysis of suitability.
+The reasons given by the CAT for remaining unpersuaded that the claims of the proposed class members were suitable for an aggregate award of damages did not depend in any way on whether the extent of merchant pass on is regarded as a common issue.
+Since an aggregate award of damages was the only relief sought by the applicant and said by the applicant to be appropriate, it followed from the conclusion that the claims were not suitable for such relief that the claims were not suitable to be brought in collective proceedings.
+Whether the extent of merchant pass on is a common issue has no bearing on that.
+Mr Harris for the applicant emphasised that the difficulties in establishing the extent of any merchant pass on would have been equally formidable for a typical individual claimant, seeking compensation for increased retail prices over the sectors of the market in which he or she was accustomed to make purchases.
+He submitted that, if those difficulties would have been insufficient to deny a trial to an individual claimant, they should not, in principle, have been sufficient to lead to a denial of certification for collective proceedings.
+This argument seems to us to make the error already discussed of confusing the requirements for certification of claims as eligible for inclusion in collective proceedings with a summary judgment or strike out test.
+Whether an individual claimant has a claim that is sufficiently strong to go to trial is a different question, involving a different test, from whether a class of claims is eligible to be brought as a collective proceeding.
+It does not follow that, just because claims are capable of being pursued individually without being struck out, they must also be suitable to be brought in collective proceedings.
+Nor does it follow that, because a group of claimants would have greater difficulties (practical or legal) in pursuing their claims individually than they would if the claims are brought in collective proceedings, that of itself makes the claims suitable to be brought in collective proceedings.
+For the reasons stated earlier, the suitability requirement is not relative in this way.
+Conclusion
+For the reasons given, the CAT was in our opinion entitled to take the view that the claims which the applicant was seeking to bring as a class action were not suitable to be brought in collective proceedings when the CAT was not satisfied that there was a realistic prospect of the applicant being able to apply its proposed economic methodology across the whole width, or substantially the whole width, of the proposed class.
+This is not to say that none of the claims which the applicant was seeking to combine had a real prospect of success.
+The CAT was right to treat the issue of suitability as distinct from the question whether the class action might be struck out on the merits under rule 41 or rule 43.
+We think it would not have been possible for the CAT to strike out or give summary judgment on the claims covered by the proposed CPO because some of them are very likely to have merit.
+But it was a separate question whether it was suitable for them to proceed as a collective proceeding, with the substantive legal advantages that this would give to the claimants, where the applicant could not show that data existed or were likely to exist which would make the action viable across the whole width of the class.
+Finally, it should be emphasised that the CATs approach does not undermine the efficacy of the collective proceedings regime.
+The test which the CAT applied in looking to see whether the relevant data were or might become available was a low one.
+It was open to the applicant to seek a CPO in relation to a class of claims which was framed less ambitiously for example, in relation to particular sectors of the economy where the relevant data needed to make the applicants economic methodology workable in a meaningful and fair way could be shown to be available or likely to be available.
+However, the applicant did not put forward any alternative proposal.
+The only application made was to certify as suitable to be brought in collective proceedings a massive class of claims brought on behalf of more than 46m people everyone domiciled in the UK who when over the age of 16 had been resident in the UK for more than three months at any time during a 16 year period between 1992 and 2008.
+The fact that this gargantuan class action was found unsuitable to proceed did not rule out the possibility of pursuing in collective proceedings a more focused class of claims.
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+This case concerns the circumstances in which under EU law a finding in a judicial decision by an EU court is binding in later judicial proceedings.
+The EU principle of res judicata, which applies directly in a domestic court of a member state when dealing with a dispute falling within the scope of EU law, has a number of strands.
+One is known as relative res judicata and applies where a second action is brought between the same parties, dealing with the same subject matter and based on the same grounds as an earlier action.
+However, this case concerns a distinct strand known as absolute res judicata or, to use its full Latin tag, res judicata erga omnes.
+This is intended to convey that, where the principle applies, a judicial decision is given dispositive effect which is binding not simply on the parties to the decision but on all the world.
+It is a principle of EU law which has been developed by the EU courts in recent decades in a specific context for a specific purpose which relates to the effective judicial control of EU institutions and the maintenance of the EU legal order.
+It concerns the binding scope of a judgment of the General Court of the European Union (the General Court) or the Court of Justice of the European Union (CJEU) annulling a measure adopted by an EU institution.
+In addressing its scope and applicability it is therefore necessary to set to one side distinct notions of res judicata, issue estoppel and abuse of process as understood in common law jurisdictions.
+The factual background
+The appellants (referred to collectively as Servier), who are defendants in each of the proceedings giving rise to this appeal, developed and manufactured the medicinal product perindopril erbumine (Perindopril), which is used in the treatment of cardiovascular diseases including the treatment of high blood pressure.
+They marketed Perindopril under the trade name Coversyl.
+Perindopril falls within the class of medicines known as angiotensin converting enzyme inhibitors (ACE inhibitors).
+Servier obtained a number of patents for Perindopril during the course of its development.
+The respondents to this appeal (referred to collectively as the claimants), are the national health authorities of England, Wales, and Scotland and Northern Ireland.
+They are the claimants in the national proceedings.
+The High Court has directed that the three sets of proceedings be jointly managed and be tried on the same occasion (Order of Henderson J dated 26 February 2016).
+The present appeal is against the order of the Court of Appeal dated 27 June 2019 that followed a one day hearing on 18 June 2019 ([2019] EWCA Civ 1096; [2020] Ch 193).
+That order dismissed Serviers appeal from the order of Roth J at first instance dated 17 April 2019, following a two day hearing on 6 7 March 2019 ([2019] EWHC 1004 (Ch); [2019] 5 CMLR 6).
+The national proceedings
+The national proceedings were commenced by the claimants between May 2011 and September 2012.
+In those proceedings, each of the claimants alleged: (1) breaches by Servier of article 101 of the Treaty on the Functioning of the European Union (TFEU) and/or the Chapter 1 prohibition under the Competition Act 1998 (the 1998 Act), consisting in the conclusion of anticompetitive agreements between Servier and potential manufacturers and/or suppliers of generic Perindopril, under which the generic manufacturers/suppliers would stay out of the market in return for financial consideration; and (2) an abuse of a dominant position by Servier contrary to article 102 TFEU and/or the Chapter 2 prohibition under the 1998 Act consisting in: (a) the obtaining, defending and enforcing of an invalid patent through the provision of misleading information to patent authorities and/or courts; and (b) the adoption of an exclusionary strategy, designed to keep competitors off the market, by entering into anticompetitive agreements with generic manufacturers and/or suppliers (as above), and by purchasing rights to an alternative means of manufacturing Perindopril developed by a company known as Azad.
+In addition, the English claimants alone pleaded a further claim for the tort of causing loss by unlawful means, based on largely the same facts as the alleged patent abuse.
+Following the striking out of that claim ([2019] EWCA Civ 1160; [2019] 3 WLR 938), the claims are essentially identical across all three sets of proceedings.
+The English claimants appeal against the decision of the Court of Appeal to uphold the strike out of that cause of action is pending before the Supreme Court.
+The claimants allege that by reason of Serviers unlawful conduct, the entry of generic Perindopril onto the UK market was delayed, which caused the price of Perindopril to be higher than it otherwise would have been.
+The claimants allege that as a result they have suffered substantial financial loss through the higher prices they have paid for Serviers Perindopril product.
+In October 2016, Servier was granted permission by Henderson J to amend its pleadings to include defences to the effect that if liability and causation are established then the claimants damages should be reduced or extinguished (i) because the claimants failed to mitigate their losses, (ii) for contributory negligence or (iii) because the losses claimed are too remote: [2016] EWHC 2381 (Ch); [2016] 5 CMLR 25.
+These defences are described collectively and for convenience as the prescribing argument.
+The Commission proceedings
+In 2009 the European Commission (the Commission) commenced an investigation in case COMP/39.612 into whether Serviers conduct relating to Perindopril had the object or effect of hindering generic entry of Perindopril on European Economic Area (EEA) markets.
+The Commission granted interested party status to the English claimants for the purpose of the administrative stage of the proceedings.
+This entailed: (i) access to a confidential 16 page summary of the Statement of Objections but not access to any of the evidence, submissions or other documents on the Commissions file (after the Commission proceedings had concluded, access was granted to relevant documents from the Commissions file in the disclosure exercise in the national proceedings); (ii) the opportunity, which was taken, to make submissions in writing; and (iii) the opportunity, which was taken, to attend the oral hearing and make 30 minutes oral submissions.
+The other claimants did not request to be and were not interested parties in the proceedings before the Commission.
+On 9 July 2014, the Commission issued a decision finding that Servier contravened articles 101 and 102 TFEU and imposing fines (the Commission Decision).
+Those aspects of the Commission Decision concerning article 102 are most relevant to the present appeal.
+In particular, in determining that Servier held a dominant position in a relevant market (an element of the finding of breach of article 102 TFEU), the Commission defined the relevant market as comprising only Perindopril and it rejected Serviers argument that it comprised, at least, all ACE inhibitors.
+After obtaining disclosure of the Commission Decision on 9 March 2015, the claimants in all three sets of proceedings introduced amendments to their particulars of claim to rely on the Commission Decision, including in relation to the definition of the relevant market.
+Serviers Appeal against the Commission Decision and the General Court Judgment
+On 21 September 2014, Servier applied to the General Court in Case T 691/14 seeking the annulment of the Commission Decision.
+Servier relied on 17 pleas in support of its application, including the 14th plea which was summarised as follows: the Commission wrongly and artificially restricted the relevant market for finished products to the single molecule of perindopril, by excluding the 15 other enzyme conversion inhibitors available on the market.
+The claimants did not apply to intervene and they were not involved in the General Court proceedings.
+The General Court gave its judgment on 12 December 2018 (Case T 691/14) EU:T:2018:922 (the General Court Judgment).
+In it, the General Court: (1) annulled one of the findings of infringement of article 101 TFEU (in relation to the settlement agreement between Krka (Krka Tovarna Zdravil dd is a Slovenian pharmaceutical company which had, with a number of other pharmaceutical companies, filed opposition proceedings before the European Patent Office against one of Serviers patents) and Servier), but upheld the remainder of the Commissions findings of infringement of article 101 TFEU; and (2) annulled the finding of infringement of article 102 TFEU in its entirety, on the grounds that the relevant market at the relevant time extended beyond Perindopril and Servier did not have a dominant position in that wider market.
+Both the Commission and Servier have now appealed from the General Court Judgment to the CJEU: see pending cases C 201/19P and C 176/19P.
+The UK Government has been granted permission to intervene in those appeals.
+The Commission is challenging (i) the General Courts approach to market definition including the General Courts analysis of the considerations of therapeutic substitutability and (ii) the determination that the Krka Agreement was not in breach of article 101 TFEU.
+There are significant overlaps between the allegations of infringement in the national proceedings and the infringements investigated and found by the Commission.
+As a result, it is common ground that the domestic proceedings cannot proceed to a final trial until the Commission proceedings and appeals therefrom have been finally resolved at EU level.
+The prescribing argument
+The prescribing argument relies (inter alia) on factual contentions that (a) ACE inhibitors exert a class effect (meaning that all drugs in the class work in essentially the same way and produce essentially the same effects) and (b) that there was no clinical difference between Perindopril and alternative ACE inhibitors that should have been material to NHS prescribers choice between ACE inhibitors, or to the claimants decision as to whether to encourage switching to other ACE inhibitors already available in generic form.
+On the basis of those factual contentions, Servier pleads further that NHS prescribers could therefore prescribe these ACE inhibitors as an alternative to Perindopril and the claimants should therefore have taken all reasonable steps to encourage switching from the prescription of Perindopril to the prescription of cheaper alternative ACE inhibitors in generic form.
+Paragraph 83C of Serviers re re amended defence to the English claimants claim sets out the particular steps which Servier contends the claimants should have taken to encourage prescribers to prescribe cheaper alternative ACE inhibitors that, unlike Perindopril, were already available in generic form during the relevant period.
+On 31 January 2018, Roth J ordered that there should be a nine day trial of a set of preliminary issues in relation to the prescribing argument.
+The early determination of these issues was intended to be useful because it could eliminate or substantially reduce the costs of a disclosure exercise relating to the prescribing argument.
+On 8 November 2018, the trial estimate for the preliminary issues was extended to 22 days and the trial was relisted for October 2019.
+Roth J indicated that the preliminary issues trial should not take place before the General Court had issued its judgment, which it had not yet done at that time.
+The preliminary issues ordered to be tried, as subsequently amended, were: (1) Would it have been reasonable or appropriate in the period between 2003 and 2009 for a clinician to prescribe another ACE inhibitor instead of Perindopril in all circumstances, except where the patient was allergic to or intolerant of all alternative ACE inhibitors? (2) inappropriate? If not, in what circumstances would that have been unreasonable or (3) Was it unreasonable for the claimants to fail to take any (and if so, which) of the steps set out in paragraph 83C of Serviers re re amended defence to the English claimants claim or identified in Serviers Further Information dated 29 September 2017?
+The General Court having delivered its judgment on 12 December 2018, Servier indicated that its position was that certain findings made by the General Court (in particular as to the substitutability of Perindopril with other ACE inhibitors) would be binding on the High Court in the trial of the preliminary issues.
+On 18 January 2019, Roth J directed the parties to serve pleadings on the question of the extent to which findings of fact made in the General Court Judgment that also arise for determination in the preliminary issue trial of the prescribing argument are binding in that trial.
+On 1 February 2019, Servier served its pleading setting out eight propositions of fact derived from the General Court Judgment on which it intended to rely as binding in the trial of the preliminary issues.
+These propositions were: (1) There was no significant difference between Perindopril and other ACE inhibitors in therapeutic terms, including in terms of efficacy and side effects, mode of action, main indications and contra indications (General Court Judgment paras 1425, 1429, 1481, 1519, 1589). (2) ACE inhibitors were widely perceived as substitutable by prescribers and there were many medications considered by physicians as therapeutic equivalents to Perindopril (General Court Judgment paras 1481, 1489). (3) There were no reasons why physicians should not have prescribed ACE inhibitors other than Perindopril for new patients (General Court Judgment para 1489). (4) Switching between ACE inhibitors for existing patients did not raise particular fears on the part of physicians (General Court Judgment para 1519). (5) The prescribing behaviour of physicians was not characterised by a high degree of inertia and treatment changes in patients undergoing continuous treatment were significant (General Court Judgment para 1544). (6) At least some Primary Care Trusts (PCTs) considered, as from 2005, that Perindopril was no more effective than any other ACE inhibitor and recommended, for cost reasons, the use of other ACE inhibitors than Perindopril, or even the substitution of another ACE inhibitor for Perindopril, in particular lisinopril or ramipril (General Court Judgment para 1464). (7) At least some PCT policies had a real negative effect on Perindopril sales at local level (General Court Judgment para 1534). (8) Serviers promotional activities did not sufficiently differentiate Perindopril from other ACE inhibitors for it to be recognised for particular therapeutic qualities by physicians (General Court Judgment paras 1472, 1473).
+Servier contended that in so far as those propositions were findings made in the General Court Judgment, they were binding in the preliminary trial for two reasons: (1) the EU law principle of res judicata renders findings of fact and law constituting the ratio of an annulling judgment of the General Court binding erga omnes with absolute effect; and (2) in all of the circumstances of the case, including the claimants ability to participate in the EU proceedings (through the UK state) and their own positive reliance on the Commissions findings in relation to the prescribing argument, it would be an abuse of process for the claimants to require Servier to relitigate those factual issues in the mitigation trial.
+The claimants admitted as facts the propositions stated at (6) and (7) in para 19 above, so the question of whether those findings were binding did not arise for consideration by Roth J.
+The claimants denied, however, that the principle of res judicata confers binding effect in respect of the other findings of fact relied on by Servier in these proceedings, and denied that there would be an abuse of process as alleged or at all.
+In his judgment Roth J addressed (at para 51) the question of whether the six disputed propositions were actually found as facts in the General Court Judgment.
+He concluded that: (1) propositions (1) to (3) were findings made in the General Court Judgment; (2) proposition (5) was only made in modified form, to the effect that the Commission had not established that the prescribing behaviour of physicians was characterised by a high degree of inertia, and treatment changes in patients undergoing continuous treatment were significant; and (3) propositions (4) and (8) were not findings made in the General Court Judgment.
+In his judgment, Roth J held that none of the findings of fact constituted res judicata for the purposes of the preliminary issues trial, and that it was not an abuse of process for the claimants to advance arguments and adduce evidence at the preliminary issues trial contrary to the propositions set out by Servier.
+Roth J granted permission to appeal in respect of Serviers res judicata pleading on the grounds that the question of how the EU principle of res judicata applies in this context had not been decided before and raised an important issue on which Servier had a reasonable prospect of success.
+In addition, Servier sought permission first from Roth J, and then from the Court of Appeal, on the questions of (i) whether propositions (4), (5) and (8) had been found as facts in the General Court Judgment, and (ii) on the question of abuse of process.
+Permission to appeal was refused on these further grounds.
+On 18 June 2019, the Court of Appeal heard the expedited appeal from Roth J in relation to the issue of res judicata.
+On 27 June 2019 the Court of Appeal delivered its judgment ([2020] Ch 193), in which it held that none of the findings of fact relied on by Servier constituted res judicata for the purposes of the preliminary issues hearing.
+It refused permission to appeal to the Supreme Court.
+On 25 July 2019, the Supreme Court granted Servier permission to appeal on the issue of res judicata, solely on the basis that the application involved a point of law which is arguably not acte clair.
+On 26 July 2019, at the pre trial review in relation to the preliminary issues hearing, with the consent of the parties, Roth J vacated the October 2019 preliminary issues hearing pending determination of this appeal to the Supreme Court.
+Issues on this appeal
+On this appeal, the Supreme Court is asked to determine whether the following findings of fact made by the General Court are binding on the national court in a trial of preliminary issues under the EU principle of res judicata: the finding that there was no significant difference between (1) Perindopril and other ACE inhibitors in therapeutic terms, including in terms of efficacy and side effects, mode of action, main indications and contra indications (paras 1425, 1429, 1481, 1519 and 1589 of the General Court Judgment); the finding that ACE inhibitors were widely perceived as substitutable (2) by prescribers and there were many medications considered by physicians as therapeutic equivalents to Perindopril: (paras 1481 and 1489 of the General Court Judgment); (3) the finding that there was no element that limited the discretion available to physicians to prescribe ACE inhibitors other than Perindopril for new patients (para 1489 of the General Court Judgment); and the findings: (i) that the Commission had not established that the (4) prescribing behaviour of physicians was characterised by a high degree of inertia; and (ii) treatment changes in patients undergoing continuous treatment were significant (paras 1540 and 1544 of the General Court Judgment).
+Servier contends that the appeal raises a point of EU law that cannot be characterised as acte clair against Servier.
+By contrast, the claimants contend that the point of law is acte clair and that the High Court and Court of Appeal reached the right conclusion.
+If the Supreme Court agrees with Servier that this issue is not acte clair against it, the Supreme Court is asked to refer the question to the CJEU pursuant to article 267 TFEU and, upon a preliminary ruling being received from the CJEU, to determine the issue.
+Preliminary reference to the CJEU
+On this appeal Servier seeks a preliminary reference to the CJEU.
+Ms Kelyn Bacon QC for Servier submits that the limitations imposed by the Court of Appeal on the absolute res judicata principle have no basis in the EU jurisprudence.
+However, recognising that the application of the principle in domestic proceedings has never previously been considered by the EU courts, she submits that the appropriate way forward is for this court to make a reference to the CJEU under article 267 TFEU.
+She accordingly submits that the CJEU should be asked directly whether the findings of fact identified by Servier in the judgment of the General Court are binding in the national proceedings in relation to the quantification of the claimants loss.
+That, she submits, is a question of law the answer to which is essential to the pending national proceedings and which cannot be said to be acte clair against Servier.
+I consider that the fact that the Commission has appealed against the
+judgment of the General Court to the CJEU where that appeal is pending constitutes an insuperable obstacle to this court making a preliminary reference at this time.
+It is clearly established in the case law of the European courts that the principle of absolute res judicata applies only to judicial decisions which have become definitive after all rights of appeal have been exhausted, or after expiry of the time limits provided to exercise those rights.
+It is only in such circumstances that the principle operates so as to prevent a judicial decision from being called into question (P&O European Ferries (Vizcaya) SA v Commission of the European Communities (Joined Cases C 442/03P and C 471/03P) [2006] ECR I 4845 (P&O European Ferries CJEC), para 47; Artegodan GmbH v European Commission (Case C 221/10P) EU:C:2012:216 (Artegodan), paras 86 78, 92 93).
+Indeed, on the hearing of the appeal before us, this was common ground between the parties.
+The Commissions appeal to the CJEU attacks the decision of the General Court on the definition of the relevant product market.
+There can be no definitive judicial ruling on that issue until the judgment of the CJEU is handed down.
+That court may come to a different conclusion on this issue from that of the General Court.
+At that time, it would be necessary to analyse the decision and reasoning of the CJEU and to consider the possible application of the absolute res judicata principle to that judgment.
+As matters presently stand, it cannot be said, in accordance with article 267 TFEU, that answers to the questions which Servier proposes we should refer to the CJEU are necessary in order to enable the national courts to give judgment.
+Those questions ask, in particular, whether specific findings in the General Court Judgment are binding on the national courts.
+Those findings may well be reversed or rendered redundant by the judgment of the CJEU on the appeal.
+For the same reasons, the hearing of this appeal may be considered premature.
+This court has been addressed on the findings of the General Court in relation to the relevant product market and invited to rule on whether under the principle of absolute res judicata they are binding on the parties in the national proceedings.
+The short answer is that they are not because, as matters stand, the findings are not definitive and they may never become definitive because they may be overturned by the CJEU on appeal.
+Nevertheless, the underlying issues of law before us are of considerable general importance and have been addressed in detail in the judgment of the Court of Appeal and in the submissions of counsel to this court.
+As the members of this court have come to a clear and unanimous view on the underlying legal issues, it is appropriate for this court to set out its views in the hope that they might assist in later stages of the national proceedings.
+The principle of absolute res judicata
+The leading authority on the EU principle of absolute res judicata is P&O European Ferries CJEC.
+It is necessary to refer to the history of the litigation in some detail.
+In July 1992 P&O Ferries entered into an agreement (the original agreement) with the Ministry of Trade and Tourism of the Basque Government (the Ministry) and the Provincial Council of Biscay (the Diputacin) relating to the establishment of a ferry service between Bilbao and Portsmouth, under which the Ministry and the Diputacin agreed to purchase over a period of three years 26,000 travel vouchers for use on that ferry route at a price higher than the commercial rate.
+Brittany Ferries (BAI), which operated a service between Plymouth and Santander, complained to the Commission alleging that this amounted to state aid.
+The Commission took the initial view that the agreement was not a normal commercial transaction and initiated a procedure to investigate whether the agreement was a state aid incompatible with the common market.
+Implementation of the original agreement was later suspended and on 7 March 1995, P&O Ferries entered into a new agreement (the new agreement) with the Diputacin but not with the Ministry, under which the Diputacin agreed to buy 46,500 travel vouchers for use on the same route over a three year period with the price per ticket set at a discounted rate to reflect the Diputacins long term purchasing commitment.
+The new agreement was notified to the Commission in accordance with state aid rules.
+On 7 June 1995 the Commission adopted a decision terminating the procedure that it had initiated to investigate the original agreement.
+The Commission stated that the new agreement introduced significant modifications which met its earlier concerns and that, accordingly, it did not constitute state aid.
+That decision was challenged by BAI before the Court of First Instance.
+P&O Ferries and the Kingdom of Spain intervened in support of the Commission but the Diputacin did not intervene.
+By its judgment of 28 January 1999 in Bretagne Angleterre Irlande (BAI) v Commission of the European Communities (Case T 14/96) [1999] ECR II 139 (BAI v Commission), the Court of First Instance annulled the decision of 7 June 1995 on the ground that the Commission had founded its decision that the new agreement did not constitute state aid on a misinterpretation of the state aid rules.
+In May 1999 the Commission accordingly decided to initiate a state aid procedure to investigate the new agreement.
+On 29 November 2000 it adopted a decision in which it declared that the new agreement did constitute state aid and that the aid was incompatible with the common market.
+The Kingdom of Spain was ordered to recover the sums already paid.
+P&O Ferries and the Diputacin challenged that decision in the Court of First Instance, the Diputacin challenging the whole decision but P&O merely challenging the order for recovery of aid already paid.
+In its judgment of 5 August 2003 in P&O European Ferries (Vizcaya) SA v Commission of the European Communities (Joined Cases T 116/01 and T 118/01) [2003] ECR II 2957 (P&O Ferries GF1) the Court of First Instance rejected a plea by the Commission that the challenge was inadmissible because of the force of res judicata arising from the judgment in BAI v Commission.
+The Court of First Instance held (at paras 77 80) that the force of res judicata attaching to a judgment could constitute a bar to the admissibility of an action only if the action which gave rise to the judgment was between the same parties, had the same subject matter and was founded on the same grounds.
+Accordingly, res judicata could not be pleaded where the actions did not relate to the same measure, since the measure whose annulment was sought was an essential element of the subject matter of an action.
+In its view, since the action was directed against the Commissions decision of 29 November 2000 while the BAI v Commission judgment concerned the Commissions decision of 7 June 1995 the two actions could not be considered to have the same subject matter.
+Furthermore, the action was not between the same parties as those in the BAI case.
+Res judicata did not prevent the action from being brought.
+However, on addressing the merits, the Court of First Instance concluded, in summary, that the changes made in the new agreement did not affect the substance of the aid instituted by the original agreement and that the two agreements constituted a single grant of aid.
+The challenge to the Commissions infringement decision was therefore dismissed.
+P&O Ferries and the Diputacin appealed against this judgment to the Court of Justice of the European Communities (CJEC).
+On the appeal the Commission did not revive its objection on grounds of res judicata but the CJEC took the point of its own motion on the basis that observance of the principle was a matter of public policy and a fundamental principle of the Community legal order.
+On this issue, Advocate General Tizzano (at paras 60 79 of his Opinion EU:C:2006:91) came to the same conclusion as the Court of First Instance but for different reasons.
+He was not sure that the fact that the parties to the two sets of proceedings were different was decisive.
+What mattered, in his view, was whether the cases dealt with the same subject matter.
+This did not require that two claims should be entirely identical but that they related to the points of law before the court.
+He considered that the point of law at issue in both cases was the same, namely the assessment that the Commission had made of the measure at issue in determining whether or not the new agreement constituted state aid.
+However, since after the BAI v Commission judgment the Commission had instituted a new procedure, during which the interested parties had submitted further observations and information, he could not ignore the possibility that the replacement Commission decision of 29 November 2000 had been based on new material.
+On this basis he considered that there was no res judicata.
+The CJEC, however, rejected both the General Courts view and the Advocate Generals view of the scope of the force of res judicata attaching to the BAI v Commission judgment: 41.
+Contrary to the view taken by the Court of First Instance, the BAI v Commission judgment did not only have relative authority preventing merely new actions from being brought with the same subject matter, between the same parties and based on the same grounds.
+That judgment was invested with the force of res judicata with absolute effect and prevented legal questions which it had already settled from being referred to the Court of First Instance for re examination.
+In the BAI v Commission judgment the Court of First 42.
+Instance annulled the decision of 7 June 1995 in which the Commission held that the new agreement did not constitute state aid and consequently decided to terminate the review procedure which had been initiated in respect of the aid granted to Ferries Golfo de Vizcaya. 43.
+That annulment led retroactively to the disappearance of the decision of 7 June 1995 with regard to all persons.
+An annulling judgment of that nature thus has authority erga omnes, which gives it the force of res judicata with absolute effect (see, in particular, France v High Authority (Case 1/54) [1954] ECR 1, or p 17, 34; Italy v High Authority (Case 2/54) [1954] ECR 37, at p 55; Assider v High Authority (Case 3/54) [1955] ECR 63; and Commission v AssiDomn Kraft Products (Case C 310/97P) [1999] ECR I 5363, para 54). 44.
+That authority is not attached only to the operative part of the BAI v Commission judgment.
+It is also attached to the ratio decidendi of that judgment which is inseparable from it (see, to that effect, Asteris v Commission (Joined Cases 97/86, 193/86, 99/86 and 215/86) [1988] ECR 2181, para 27, and Commission v AssiDomn Kraft Products, para 54). 45.
+In addition, the question of the force of res judicata with absolute effect is a matter of public policy, which must, consequently, be raised by the court of its own motion.
+The CJEC then applied those principles to the case before it (at paras 46 52).
+In order to annul the decision of 7 June 1995 the Court of First Instance based itself on the conclusion that the new agreement was not a normal commercial transaction and on the fact that the cultural and social aims pursued by the Spanish authorities played no part in the characterisation of the new agreement in the light of the Treaty provisions.
+Furthermore, the Court of First Instance had found that the Commissions conclusion that the new agreement did not constitute state aid was based on a misinterpretation of the Treaty provisions.
+There had been no appeal against the judgment in BAI v Commission and its operative part and ratio decidendi had therefore become final.
+In the view of the CJEC, it was clear from the grounds of that judgment that the Commission should have classified the aid at issue as state aid and that, following the annulment, it would have to reopen the review procedure in respect of that aid.
+In order to comply with that judgment, the Commission, as it was required to do, reopened the review procedure on the compatibility of the aid in dispute with the Treaty.
+In the contested decision it had confirmed the classification as state aid acknowledged by the Court of First Instance in the BAI v Commission judgment and had considered that the aid in dispute was incompatible with the Treaty.
+The Commission therefore gave its decision on the same measures as those which were classified as state aid in the BAI v Commission judgment.
+The CJEC continued: 50.
+In those circumstances, when the Diputacin brought its application against the contested decision before the Court of First Instance that court could not re examine the pleas alleging that the aid at issue did not amount to state aid without disregarding the scope of the BAI v Commission judgment.
+Consequently, in finding as it did, the Court of First Instance failed to have regard to the force of res judicata with absolute effect of its previous judgment. 51.
+Thus, the judgment under appeal is vitiated by an error of law in so far as it examined the plea alleging infringement of article 87(1) EC (now article 107 TFEU) which, in its three parts, sought to challenge the classification of the aid in dispute as state aid.
+That error does not, however, mean that the operative part of the judgment under appeal should be called into question. 52.
+It follows from the above considerations that the Diputacins first three grounds of appeal cannot, in the light of the force of res judicata of the BAI v Commission judgment, be examined by the Court of Justice.
+Those grounds of appeal are irrelevant and must be dismissed.
+In seeking to define the scope and applicability of the principle of absolute res judicata it is essential to have regard to its purpose.
+This is firmly rooted in the annulment by the EU courts of acts of EU institutions.
+Article 263 TFEU provides for the judicial review of the legality of certain acts of specified EU institutions and, for this purpose, it confers jurisdiction in actions on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers.
+Pursuant to article 266 TFEU, an institution whose act has been annulled is required to take the necessary measures to comply with the annulling judgment.
+As the CJEC explained in P&O Ferries, where a Commission decision has been annulled on substantive as opposed to procedural grounds the judgment itself has the force of res judicata; what becomes binding is the substance of the judgment and not simply the conclusion that the Commission has failed to adduce sufficient evidence to support the decision.
+Furthermore, the annulment of the act which has been challenged leads retroactively (ex tunc) to the disappearance of the act in question with regard to all persons (P&O European Ferries CJEC at para 43).
+An annulling judgment of that nature accordingly has authority erga omnes, which gives it the force of res judicata with absolute effect.
+This is necessary in order to ensure stability of legal relations, in particular by securing that legal matters which have been definitively settled by judicial decision cannot be referred once again to the EU courts for reconsideration (P&O Ferries CJEC at para 41; Artegodan at para 86).
+It also serves to define with certainty what is required in order to comply with the annulling decision and, thereby, to assist the institution concerned to achieve compliance.
+If, however, subsequent proceedings do not call into question an issue that has already been settled by the EU courts, the principle of absolute res judicata can have no application.
+The principle of absolute res judicata gives dispositive effect to the judgment itself.
+It is the usual practice of EU courts to express the outcome of the action in a brief final paragraph of the judgment referred to as the operative part.
+While this will have binding effect, it will be necessary to look within the judgment beyond the operative part in order to ascertain its basis, referred to as the ratio decidendi. (EU law has no system of stare decisis or binding precedent comparable to that in common law jurisdictions and this EU concept of ratio decidendi is, once again, distinct from the concept bearing the same name in the common law.) It will be essential to look beyond the operative part in this way in order to identify the reason for the decision and in order that the institution whose act has been annulled should know what steps it must take to remedy the situation.
+In a case where the principle of absolute res judicata applies, it will extend to findings that are the necessary support for the operative part of the annulling judgment.
+This has been expressed very clearly by the CJEC in a series of cases.
+In Asteris AE v Commission of the European Communities (Joined Cases 97/86, 193/86, 99/86 and 215/86) [1988] ECR 2181; [1988] 3 CMLR 493 (Asteris) it observed at para 27: In order to comply with the judgment and to implement it fully, the institution is required to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part.
+It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure.
+Similarly, in Commission of the European Communities v AssiDomn Kraft Products AB (Case C 310/97P) [1999] ECR I 5363 (AssiDomn) the CJEC observed at para 55: The only purpose of considering the grounds of the judgment which set out the precise reasons for the illegality found by the Community Court is to determine the exact meaning of the ruling made in the operative part of the judgment.
+These authorities were referred to by the CJEC in P&O European Ferries CJEC (at para 44, cited at para 36 above) where it observed that the authority erga omnes of an annulling judgment is not attached only to the operative part of the BAI v Commission judgment but is also attached to the ratio decidendi of that judgment which is inseparable from it.
+Similarly, in Artegodan (at para 87) the CJEU observed: In that regard, the court has held, firstly, that res judicata extends only to the matters of fact and law actually or necessarily settled by the judicial decision in question and, secondly, that the force of res judicata attaches not only to the operative part of that decision, but also to the ratio decidendi of
+that decision which is inseparable from it
+In the present case, Servier submits that the four findings of the General Court on which it seeks to rely (see para 28 above) are binding for all purposes in the claimants damages actions.
+While accepting that the ultimate question before the General Court was whether other ACE inhibitors were substitutable for Perindopril at the relevant time, Servier maintains that the court needed to make each of the key findings on which they now seek to rely and that, accordingly, they form part of the ratio decidendi which is binding.
+The claimants, on the other hand, while denying that the four findings of the General Court on which Servier seeks to rely are essential to or inseparable from the General Courts final conclusion that the Commission erred in its definition of the relevant product market, raise the more fundamental objection that the principle of absolute res judicata is limited to preventing an annulment judgment from being called into question in subsequent proceedings.
+The purpose of the principle of absolute res judicata provides the key to identifying which parts of an annulling decision are binding erga omnes.
+They can have that effect only if it is necessary to respect them in order to prevent the courts conclusions from being undermined or, in the context of an EU institution charged with complying with the terms of the judgment, in order to prevent contradiction of the courts decision as to what needs to be done to secure compliance with EU law.
+Considered in the light of its purpose, it is clear that the notion of ratio decidendi comprises the grounds which form the essential basis of the judgment, the precise reasons for the illegality.
+It is for this reason that it is inseparable from the authority erga omnes of an annulling judgment.
+As the claimants put it in their written case, only those aspects of the grounds of the judgment which explain the meaning of the annulment decision form part of the ratio decidendi because those are the aspects which must be respected in order to fulfil the purpose of preventing the annulment judgment from being called into question in subsequent proceedings.
+Contrary to the submission on behalf of Servier, the judgment of the General Court in Shoe Branding Europe BVBA v European Union Intellectual Property Office (EUIPO) (adidas AG intervening) (Case T 629/16) EU:T:2018:108 (Shoe Branding) is not inconsistent with this analysis.
+In an earlier case (adidas AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Shoe Branding Europe BVBA intervening) (Case T 145/14) [2015] ETMR 33 (adidas)) the General Court annulled a decision of the Board of Appeal of OHIM that a trademark registered by Shoe Branding consisting of two diagonal stripes on a shoe was sufficiently different from adidass three stripe mark to be regarded as dissimilar and not likely to give rise to consumer confusion.
+Before the General Court adidas had alleged several errors of assessment by the Board in assessing the likelihood of consumer confusion within article 8(1)(b) of Council Regulation (EC) No 207/2009.
+The General Court undertook an assessment of all factors relevant to the case and concluded that the Board of Appeal had made several errors in assessing the competing marks.
+One element of the General Courts reasoning (at paras 31 35, 40 42) was that, as a matter of fact, the shoe purchasing public is made up of average consumers, whose degree of attention is only average.
+The General Court recalled that the average consumer normally perceives a mark as a whole and does not analyse its various details.
+On this basis the General Court concluded (at para 43) that the combined effect of the errors meant that the Board of Appeal had been wrong to conclude that the marks were visually dissimilar and (at paras 49 50) that this vitiated its finding that there was no likelihood of confusion.
+The General Court (at para 53) upheld on the same basis a further plea of adidas relating to infringement of article 8(5) of Regulation 207/2009 which applies where a mark would take unfair advantage of, or be detrimental to, the distinctive character or reputation of a similar earlier trademark.
+The Board of Appeal of OHIM then reconsidered the matter.
+In its fresh decision it applied the General Courts reasoning to conclude that there was visual similarity between the marks and it went on to find that the use of the new mark by Shoe Branding would take unfair advantage of the reputation of adidass mark.
+Shoe Branding then appealed to the General Court (Shoe Branding (Case T 629/16)) challenging, inter alia, the Boards assessment of the existence of damage to the reputation or distinctive character of adidass mark.
+The General Court rejected Shoe Brandings complaint of a misapplication of the average consumer test on the basis that it concerned matters that were res judicata with absolute effect as a result of the adidas judgment.
+In particular, it held (at paras 103 105) that the General Courts findings in adidas relating to the degree of attention of the relevant public constitute the necessary support for the operative part of that judgment and therefore themselves have the authority of res judicata with absolute effect.
+As the Board had fully complied with those grounds of the annulling judgment it was not open to Shoe Branding to challenge the Boards assessment regarding the degree of attention of the relevant public.
+Furthermore, with regard to Shoe Brandings complaint concerning the failure of the Board to perform a global assessment of the degree of similarity, the court concluded (at paras 111 112) that the General Court in adidas had definitively settled the issue of similarity by considering the similarities and differences in the marks for itself.
+The General Court observed (at paras 113 115) that the courts conclusions on the similarity of the marks in adidas constituted the necessary support for the operative part of that judgment, that it had not been open to the Board to depart from the courts assessment of similarity in adidas and that it was therefore not open to Shoe Branding to challenge the Boards adoption of that conclusion.
+Ms Bacon is correct in her submission on behalf of Servier that the General Courts findings in relation to the degree of attention of the relevant public were not the ultimate conclusion on the legal issue in the adidas case.
+They were findings of fact that fed into the courts multifactorial assessment of the similarity between the two marks which in turn led to the courts ultimate conclusion on risk of confusion under article 8(1)(b) of Regulation 207/2009 and detriment to reputation under article 8(5).
+The finding in the adidas case as to the degree of attention paid by purchasers was inseparable from the courts ultimate conclusion in that appeal and, as a result, it was part of the ratio decidendi.
+However, as Rose LJ explained in her insightful judgment in the Court of Appeal in the present case (at para 69), in the challenge brought by Shoe Branding the debate was not about whether or not buyers of sports shoes pay average or lower than average attention to buying shoes but about whether Shoe Branding was entitled to try to overturn the Board of Appeals finding that the marks were similar on the grounds that buyers paid higher than average attention.
+The ruling was that Shoe Branding could not rely on that or on any other ground for the purpose of challenging the decision that the marks were similar.
+It was in that context, and that context alone, that the previous decision as to the degree of attention paid by purchasers was binding.
+Turning to the judgment of the General Court in the present case (Case T 691/14) EU:T:2018:922, the operative part of the judgment simply annuls the finding that there has been an infringement of article 102 TFEU and is uninformative as to the basis for doing so.
+An examination of the judgment reveals that the specific reason it came to that conclusion was that the Commission erred in concluding that the relevant product market was limited solely to originator and generic Perindopril as opposed to all ACE inhibitors.
+In coming to that conclusion, the General Court (at paras 1589 1591) considered that the Commission made a series of errors in the analysis of the definition of the relevant market.
+In this regard, the General Court made a number of findings of fact, including the four findings on which Servier now seeks to rely.
+The issue of the scope and extent of the General Courts ratio decidendi only arises in a context where the General Courts assessment of Serviers conduct under article 102 is sought to be re examined.
+Assuming for present purposes that the ruling of the General Court were to become definitive, if there were such a challenge it would be necessary to ask which parts of the judgment would need to be respected in order to prevent the judgment from being undermined.
+If and to the extent that it could be shown that each of the four findings of fact on which Servier now seeks to rely was an essential basis of the General Courts ruling as to what was the relevant product market, those findings would form part of the ratio decidendi and it would not be possible to challenge them for the purpose of challenging the General Courts conclusion as to what was the relevant product market within article 102.
+In the present case, however, Servier seeks to rely on the four findings of fact
+of the General Court in an entirely different context.
+Ms Bacon submits that the EU principle of absolute res judicata applies to render the four findings of the General Court binding in the national proceedings in relation to issues of causation, remoteness and mitigation of loss.
+She submits that the General Court has found that all ACE inhibitors were substitutable and were perceived by prescribers as being substitutable, that in practice there were no obstacles to switching between any of them and that these specific findings were the necessary support or essential basis or specific reasons for the General Courts annulment of the Commission Decision.
+She says that those findings therefore carry the authority of res judicata erga omnes with absolute effect in any proceedings that fall within the scope of EU law in which those same factual issues arise.
+In making this submission, Servier seeks to detach those findings from the authority erga omnes of the annulling judgment which alone can make them part of the ratio decidendi.
+Although the proceedings before the national court originally included a claim for damages founded on an infringement of article 102 TFEU, the claimants have confirmed, following the General Courts judgment annulling the Commission Decision, that if that judgment is upheld in the further appeal to the CJEU that claim will no longer be pursued.
+As presently constituted, the claim in the national proceedings is a claim for breach of statutory duty founded on alleged infringements of article 101 TFEU.
+No question arises in the proceedings before the national court as to the relevant product market for the purposes of article 102 or the applicability of article 102.
+As a result, the ratio decidendi of the annulling judgment is simply not engaged.
+The findings on which Servier relies have no significance independent of the annulling judgment.
+It is not necessary to treat those findings as binding in any other legal context in order to preserve the authority of the annulling judgment.
+Furthermore, the broad view of absolute res judicata for which Servier contends is not supported by the case law of the EU courts.
+This is not surprising, as to apply the principle in a context detached from the annulling judgment would be entirely inconsistent with the purpose of that principle, which is to prevent the annulling judgment from being called into question in subsequent proceedings.
+AssiDomn has its origin in a Commission infringement decision against 43 producers finding unlawful collusion in the international wood pulp market, in particular by concerting on prices for bleached sulphate wood pulp.
+Subsequently, 26 of the producers, not including AssiDomn or any of the other Swedish producers, applied successfully to annul that decision (Ahlstrm Osakeyhti v Commission of the European Communities (Joined Cases C 89, 104, 114, 116 117 and 125 129/85) [1988] ECR 5193 (Wood Pulp)).
+Later, and after the expiry of the time limit for challenging the Commissions decision, the Swedish producers asked the Commission to reconsider their legal position in the light of the Wood Pulp judgment and to refund to each of them the fines which they had paid, to the extent that they exceeded the sum upheld by the CJEC in relation to certain applicants for findings of infringement which it had not annulled.
+They contended in particular that they were in the same position as the other producers in relation to the operative part of the Wood Pulp judgment and that the annulment by the CJEC of the Commissions finding that addressees of the Commission decision had concerted on prices should also have been applied to them, even though they were not party to the proceedings in Wood Pulp.
+The Commission refused their request and the Swedish producers brought proceedings challenging that refusal.
+That challenge succeeded before the Court of First Instance (AssiDomn Kraft Products AB v Commission of the European Communities (Case T 227/95) [1997] ECR II 1185; [1997] 5 CMLR 364) but failed on appeal by the Commission to the CJEC (Case C 310/97P) [1999] ECR I 5363; [1999] All ER (EC) 737.
+In their action for annulment of the Commissions refusal decision the
+Swedish producers advanced two grounds.
+First, they contended that the Commission infringed the principle of EU law according to which a judgment annulling a measure has the effect of rendering the contested measure null and void, erga omnes and ex tunc.
+Secondly, they contended that the Commission had infringed the first paragraph of what is now article 266 TFEU.
+A Grand Chamber of the CJEC considered that the Commissions original infringement decision had to be regarded as a bundle of individual decisions against each producer.
+It considered ([1999] ECR I 5363, paras 50 53) that what is now article 266 TFEU requires an institution which adopted an annulled measure only to take the necessary measures to comply with the judgment annulling its measure and that if an addressee of a decision decides to bring an action for annulment, the matter to be tried relates only to those aspects of the decision which concern that addressee.
+It continued: [54] Furthermore, although the authority erga omnes exerted by an annulling judgment of a court of the Community judicature attaches to both the operative part and the ratio decidendi of the judgment, it cannot entail annulment of an act not challenged before the Community judicature but alleged to be vitiated by the same illegality. [55] The only purpose of considering the grounds of the judgment which set out the precise reasons for the illegality found by the Community Court is to determine the exact meaning of the ruling made in the operative part of the judgment.
+The authority of a ground of a judgment annulling a measure cannot apply to the situation of persons who were not parties to the proceedings and with regard to whom the judgment cannot therefore have decided anything whatever.
+Servier submits that AssiDomn is a case where the applicants sought to rely on findings of fact about the conduct of the non Swedish producers to prove similar but distinct factual propositions about the Swedish producers.
+In their submission, because the findings of fact in the earlier Wood Pulp decision were different there was no scope for the application of the principle of absolute res judicata.
+This is, however, a misreading of the CJEC decision in AssiDomn.
+The plea of the Swedish producers related to findings as to the wood pulp market made in the earlier decision and which applied directly to the Swedish producers.
+Thus the Court of First Instance in AssiDomn expressly stated (at para 75) that the decision had been annulled on the basis of considerations which apply generally to the Commissions analysis of the wood pulp market and are not founded on any examination of conduct or practices on the part of individual addressees of the Wood Pulp decision and (at para 82) that the relevant findings related generally to the validity of the Commissions economic and legal assessment of parallel conduct observed on the market.
+Similarly, on appeal to the CJEC, Advocate General Ruiz Jarabo Colomer (at para 71) expressly endorsed the former statement of the Court of First Instance.
+Accordingly, the point of distinction identified by the CJEC was not, as Servier submits, the scope of the findings of fact in Wood Pulp but, rather, the ambit of the operative part of the annulling judgment.
+The reasoning of the CJEC was that the principle of absolute res judicata did not apply because the legal context was materially different.
+AssiDomn therefore provides compelling support for the claimants submission that the grounds of an EU judgment annulling a measure cannot be considered to have binding effect when transplanted into a context divorced from the annulling judgment.
+European Commission v Tomkins plc (In re Copper Fittings Cartel) (Case C 286/11P) [2013] Bus LR 999 (Tomkins) does not support Serviers reading of AssiDomn.
+In Tomkins an operating subsidiary company and its parent company were penalised by the Commission for infringement of the EU competition rules.
+The liability of the parent was wholly derived from the subsidiarys participation in the cartel and the Commission imposed a fine jointly and severally on the parent and subsidiary.
+They each brought separate actions before the General Court challenging the Commissions decision.
+The subsidiarys appeal succeeded in obtaining an annulment of the decision in relation to a period of the infringement that the parent had not challenged in its appeal.
+The General Court ((Case T 382/06) [2011] ECR II 1157), nevertheless, annulled the Commissions decision in relation to the parent companys involvement during that period, because its liability was wholly derived from that of the subsidiary.
+The Commission appealed to the CJEU, arguing that in reducing the duration of the infringement for the parent, without any express claim to that end having been made by the parent, the General Court had ruled ultra petita, thereby infringing the courts case law, in particular the judgments in AssiDomn and ArcelorMittal Luxembourg SA v Commission of the European Communities (Joined Cases C 201/09P and C 216/09P) [2011] ECR I 2239.
+In rejecting that submission, the Grand Chamber held that where the liability of a parent was derived exclusively from that of its subsidiary and where both have brought parallel actions having the same object, the General Court was entitled, without ruling ultra petita, to take account of the outcome of the action brought by the subsidiary and to annul the contested decision in respect of the relevant period also in so far as the parent was concerned.
+Contrary to Serviers submission, Tomkins casts no light on the true effect of AssiDomn.
+In Prez Daz v Commission of the European Communities (Case T 156/03) EU:T:2006:153 Mr Prez Daz applied in a competition for inclusion in a reserve list of Commission staff.
+The 60 best candidates were to be appointed.
+Mr Prez Daz was rejected and he challenged this decision.
+The Court of First Instance annulled the decision on the ground that the examining panel had an insufficient knowledge of Spanish, when it was required to assess Mr Prez Dazs proficiency in that language.
+Two other unsuccessful candidates, Sabbag and Bachotet, had also successfully challenged the process on the ground that the composition of the assessment panel had fluctuated.
+The Commission then held a further oral test for Mr Prez Daz before a reconstituted panel which rescored him and compared his new score with the original score of the lowest successful candidate.
+He was informed that his results in the new test were insufficient and that he could not be included in the reserve list.
+Mr Prez Daz then brought a further challenge, maintaining that it was wrong to compare his score with a score reached through the original process during which the composition of the panel had fluctuated.
+Although Mr Prez Daz had not criticised the fluctuation of the composition of the panel in his original challenge, the Court of First Instance held that he could rely on the effects of the annulling judgments in the challenges brought by Sabbag and Bachotet.
+It held (at para 60) that the organisation of Mr Prez Dazs new oral test disregarded the res judicata arising from the grounds constituting the necessary support for the operative parts of the judgments in the actions brought by Sabbag and Bachotet against the Commission.
+Servier submits that Prez Daz demonstrates that the question whether a res judicata can be relied on in a second set of proceedings depends on a close analysis of the reasons for the annulment in the first decision and whether those same reasons have any application in the second proceedings as opposed to any formal analysis of who the parties were or whether findings are being borrowed from one context to another.
+However, the judgment shows that the case turns on the scope of the annulling judgments and the Commissions obligations under article 266 TFEU to take the necessary measures to comply with them.
+The Court of First Instance explained (at paras 46 48, 57, 60) that in complying with the annulling judgment resulting from Mr Prez Dazs first challenge the Commission was required to act in accordance with EU law and was therefore required to remedy the breach of equal treatment arising from the fluctuation of the composition of the panel, identified in the challenges of the other unsuccessful candidates, which had vitiated the examination of all the candidates including Mr Prez Daz.
+The Commission could not legally, in remedying the annulment decisions in accordance with article 266, re open the selection procedure for the benefit of the excluded candidates by reproducing the conditions of the conduct of the initial oral test.
+The Commissions remedial obligation resulting from the judgments in the Sabbag and Bachotet challenges extended to according equal treatment to Mr Prez Daz.
+In simply comparing his result on the second assessment with the results of the original flawed process, the Commission had failed to discharge that obligation.
+This is not, therefore, a case where a factual finding was transposed with binding effect from its context in an annulling judgment to the distinct context of different litigation.
+The finding had no legal force independent of the annulment declaration.
+Prez Daz exemplifies a feature of the principle of absolute res judicata which the CJEC described in Asteris.
+Having explained (at para 27, cited at para 40 above) that the obligation of an EU institution to comply with an annulling judgment requires it to have regard not only to the operative part but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part, the CJEC continued (at para 28): However, although a finding of illegality in the grounds of a judgment annulling a measure primarily requires the institution which adopted the measure to eliminate that illegality in the measure intended to replace the annulled measure, it may also, in so far as it relates to a provision with specific scope in a given area, give rise to other consequences for that institution.
+In Asteris the CJEC had, in an action brought by Greece, annulled Commission Regulation No 1615/83 fixing the coefficients to be applied to the production aid for tomato concentrates for the 1983/84 marketing year.
+The Regulation was annulled to the extent to which the coefficients resulted in inequality of treatment as between Greek producers and those in other member states.
+In its annulling judgment the CJEC stated that it was the duty of the Commission to fix new coefficients for Greece or to devise some other system of compensation taking account of the fact that the aid scheme differentiated between Greece and the other member states.
+The Commission adopted a new Regulation in respect of the 1983/84 year but refused to adopt new regulations in respect of the years before or after 1983/84.
+Of the Regulations which the Commission refused to amend, the Regulations in respect of the years 1981/82 and 1982/83 were adopted before the annulled Regulation and the Regulation in respect of the years 1984/85 to 1986/87 was adopted after the annulled Regulation.
+Greece challenged the Commissions refusal to take the necessary consequential measures with respect to the previous and subsequent years, covered by regulations identical to the annulled Regulation but which were not challenged within the prescribed time limits.
+The CJEC noted that those Regulations related to situations different from those governed by the annulled Regulation.
+Having set out (at paras 26 and 27, cited above) the obligations which an annulling judgment entails for the institution concerned, the CJEC held (at paras 29 31) that where, as in that case, the effect of the annulled Regulation was limited to a clearly defined period (ie the year 1983/84) the institution which adopted the measure (ie the Commission) was, first, under an obligation to ensure that the new legislation adopted following the annulling judgment and governing the marketing years subsequent to that judgment contains no provisions having the same effect as the provisions held to be illegal.
+However, by virtue of the retroactive effect of annulling judgments, the finding of illegality took effect from the date on which the annulled measure entered into force.
+Accordingly, the Commission was also under an obligation to eliminate from the Regulations already adopted when the annulling judgment was delivered and governing years after 1983/84 any provisions with the same effect as the provision held to be illegal.
+Consequently, the finding that the coefficients to be applied to the amount of aid for Greek producers were illegally fixed was binding with respect not only to the year 1983/84 covered by the annulled Regulation, but also to all subsequent marketing years.
+By contrast, that finding could not apply to the marketing years covered by the Regulation adopted before the year 1983/84.
+The grant of relief in Asteris in respect of the later years was not the result of the transposition with binding effect of an essential finding to a different legal context.
+Rather, it provides a further example of the further consequences which may be required to flow from an annulling judgment. (See further in this regard Socit Nouvelle des Usines de Pontlieue Aciries du Temple (SNUPAT) v High Authority (Joined Cases 42 and 49/59) [1961] ECR 53, considered in AssiDomn [1999] ECR I 5363, paras 64 68.) The refusal of relief in Asteris in respect of the earlier years where the Commissions acts had been vitiated by precisely the same illegality, is, however, particularly significant for present purposes because it is entirely inconsistent with Serviers submission as to the transferability of a binding res judicata from one legal context to another.
+In support of its case, Servier also relies by way of analogy on the status of
+Commission decisions before national courts of member states and in particular on the recent judgment of the Competition Appeal Tribunal in Royal Mail Group Ltd v DAF Trucks Ltd [2020] CAT 7; [2020] Bus LR 1795 (Trucks).
+Following a settlement decision of the Commission in 2016 finding that five major European truck manufacturing groups had operated a cartel between 1997 and 2011, a number of purchasers brought in the Competition Appeal Tribunal follow on claims for damages against those manufacturers.
+The Tribunal observed (at para 129) that detailed factual findings made in infringement decisions about the operation of a cartel can be relied upon to quantify the loss caused by that cartel in follow on national proceedings.
+Servier accordingly submits that findings of fact that are essential to the operative part of an infringement decision are binding for the purposes of the damages claim, without any further limitation on the use that the parties can make of those findings in the proceedings.
+The difficulty with this submission is that the two situations are not analogous.
+First, the status of Commission infringement decisions before the courts of member states is governed by specific EU legislation, Council Regulation (EC) No 1/2003, which modernised the system for enforcement of rules of EU competition law and which conferred on national courts the power to apply those rules in parallel with the Commission.
+The legislation emphasises (recital (22)) the importance of avoiding conflicting decisions, in order to ensure compliance with the principles of legal certainty and the uniform application of the EU competition rules in a system of parallel powers.
+Accordingly, article 16 of Council Regulation (EC) No 1/2003 provides that when national courts rule on agreements, decisions or practices under articles 101 or 102 TFEU which are already the subject of a Commission decision, they cannot take decisions running counter to the decision adopted by the Commission.
+Secondly, under the law as it existed prior to the coming into effect of Council Regulation (EC) No 1/2003, (see Masterfoods Ltd v HB Ice Cream Ltd (Case C 344/98) [2000] ECR I 11369), a national court was not bound to apply any of the underlying findings of fact that were previously reached by the Commission where the subject matter of the case before the national court was different (Crehan v Inntrepreneur Pub Co (CPC) (Office of Fair Trading intervening) [2007] 1 AC 333 per Lord Bingham at para 11; per Lord Hoffmann at para 69).
+Thirdly, I note that in Trucks itself the Tribunal observed (at para 33), correctly in my view, that the principle of res judicata is not engaged where the issue concerns a decision of the Commission (as opposed to a decision of the EU courts) and that the determination of what findings in a Commission decision are binding involves different considerations.
+I agree with the observations of Rose LJ (at paras 72 and 73 of her judgment in the Court of Appeal [2020] Ch 193) that the approach for which Servier contends raises a host of practical difficulties and that it is wide ranging and unstable with no workable defined limits.
+She identifies three practical difficulties in particular.
+The first is ascertaining the degree of granularity of the factual findings made that fall within the scope of what is res judicata.
+Secondly, there will frequently be a number of facts found by the General Court to support a particular conclusion.
+National courts are likely to experience difficulty in deciding which are essential to or inseparable from or sufficiently proximate to or a pillar of the ratio decidendi.
+There is here, moreover, considerable scope for different national courts to come to different conclusions as to which findings are binding.
+Thirdly, factual findings will often point in different directions, requiring the General Court to undertake a multi factorial assessment in order to arrive at its ultimate conclusion.
+Moreover, if only some of the General Courts factual findings are res judicata, this could lead to a very unbalanced factual analysis in any subsequent national proceedings.
+More generally, it seems to me that confined to the context of the consequences of an annulling judgment, the principle of absolute res judicata performs a useful function in promoting legal certainty, the effective judicial control of EU institutions and the maintenance of the EU legal order.
+However, once freed from that restriction it could operate in an arbitrary and unjust manner, binding strangers to the original dispute in a wholly different legal context in a manner which could not be reconciled with principles of a fair trial. (See, by analogy, the Opinion of Advocate General Trstenjak in Nemzeti Fogyasztvdelmi Hatsg v Invitel Tvkzlsi Zrt (Case C 472/10) [2012] 3 CMLR 1, para 60.)
+Serviers attempt to rely in the present case upon the principle of absolute res judicata is, therefore, misplaced.
+Servier seeks to borrow findings of fact from the annulling judgment of the General Court made in the context of abuse of dominant position under article 102 TFEU and to deploy them in an entirely different context which concerns mitigation of loss flowing from alleged anti competitive agreements under article 101 TFEU and which has nothing to do with article 102 or with the consequences of the annulling judgment.
+The claims by the claimants in the national proceedings do not call into question or undermine in any way the conclusion of the General Court in its annulling judgment or the consequences of that judgment, nor do they contradict the General Courts decision as to what needs to be done to secure compliance with EU law.
+For these reasons I am satisfied to the standard of acte clair that the principle of absolute res judicata has no application to the present case.
+I would dismiss the appeal.
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diff --git a/UK-Abs/train-data/summary/uksc-2009-0047.txt b/UK-Abs/train-data/summary/uksc-2009-0047.txt
new file mode 100644
index 0000000000000000000000000000000000000000..818e02922110658c5c909e9ff41a88f1deee19c8
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2009-0047.txt
@@ -0,0 +1,15 @@
+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
diff --git a/UK-Abs/train-data/summary/uksc-2009-0057.txt b/UK-Abs/train-data/summary/uksc-2009-0057.txt
new file mode 100644
index 0000000000000000000000000000000000000000..788bc488ce537374ababf9e05958277715eb1599
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2009-0057.txt
@@ -0,0 +1,15 @@
+The Supreme Court unanimously allows the appeal, holding that the reasonable tolerability test applied by the Court of Appeal is contrary to the Convention and should not be followed in the future.
+HJ and HTs cases are remitted for reconsideration in light of the detailed guidance provided by the Supreme Court.
+There is no dispute that homosexuals are protected by the Convention, membership of the relevant social group being defined by the immutable characteristic of its members sexuality [paras [6] and [10] per Lord Hope and para [42] per Lord Rodger].
+To compel a homosexual person to pretend that their sexuality does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny him his fundamental right to be who he is.
+Homosexuals are as much entitled to freedom of association with others of the same sexual orientation, and to freedom of self expression in matters that affect their sexuality, as people who are straight [paras [11] and [14] per Lord Hope and para [78] per Lord Rodger].
+The Convention confers the right to asylum in order to prevent an individual suffering persecution, which has been interpreted to mean treatment such as death, torture or imprisonment.
+Persecution must be either sponsored or condoned by the home country in order to implicate the Convention [paras [12] and [13] per Lord Hope].
+Simple discriminatory treatment on grounds of sexual orientation does not give rise to protection under the Convention.
+Nor does the risk of family or societal disapproval, even trenchantly expressed [paras [13], [15] and [22] per Lord Hope and para [61] per Lord Rodger].
+One of the fundamental purposes of the Convention was to counteract discrimination and the Convention does not permit, or indeed envisage, applicants being returned to their home country on condition that they take steps to avoid offending their persecutors.
+Persecution does not cease to be persecution for the purposes of the Convention because those persecuted can eliminate the harm by taking avoiding action [paras [14] and [26] per Lord Hope and paras [52] [53] and [65] per Lord Rodger].
+The reasonable tolerability test applied by the Court of Appeal must accordingly be rejected [para [29] per Lord Hope and paras [50], [75] and [81] per Lord Rodger].
+There may be cases where the fear of persecution is not the only reason that an applicant would hide his sexual orientation, for instance, he may also be concerned about the adverse reaction of family, friends or colleagues.
+In such cases, the applicant will be entitled to protection if the fear of persecution can be said to be a material reason for the concealment [paras [62], [67] and [82] per Lord Rodger].
+Lord Rodger (with whom Lords Walker and Collins and Sir John Dyson SCJ expressly agreed), at para [82] and Lord Hope, at para [35], provided detailed guidance in respect of the test to be applied by the lower tribunals and courts in determining claims for asylum protection based on sexual orientation.
diff --git a/UK-Abs/train-data/summary/uksc-2009-0103.txt b/UK-Abs/train-data/summary/uksc-2009-0103.txt
new file mode 100644
index 0000000000000000000000000000000000000000..83e959e6261c151a319dff98a135c9fb4df652d3
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2009-0103.txt
@@ -0,0 +1,44 @@
+Private Jason Smith, a member of the Territorial Army since 1992, was mobilised for service in Iraq in June 2003.
+After acclimatising for a short period in Kuwait he was sent to a base in Iraq, from where he was billeted in an old athletics stadium.
+By August the daytime temperature in the shade was exceeding 50 degrees centigrade.
+On 9 August he reported sick, complaining of the heat.
+Over the next few days he was employed in various duties off the base.
+On the evening of 13 August he collapsed at the stadium and died of heat stroke.
+An inquest found that Private Smiths death was caused by a serious failure to address the difficulty he had in adjusting to the climate.
+Private Smiths mother commenced proceedings to quash that verdict and for a new inquest to be held.
+She argued that the United Kingdom had owed her son a duty to respect his right to life which was protected by article 2 of the European Convention on Human Rights (ECHR) and that the inquest had to satisfy the procedural requirements of an investigation into an alleged breach of that right.
+The Secretary of State denied that a further inquest was required on the facts of the case.
+He also denied that a soldier on military service abroad was subject to the protection of the Human Rights Act 1998 when outside his base, while accepting that in this case Private Smith had died within the UKs jurisdiction on the base.
+The High Court held that Private Smith had been protected by the Human Rights Act 1998 at all times in Iraq and ordered a fresh inquest.
+Before the Court of Appeal the Secretary of State agreed he would not submit to the new coroner that the requirements of article 2 were inapplicable.
+Notwithstanding that concession, both the Court of Appeal and the Supreme Court considered that the appeal of the Secretary of State raised two issues of general importance and of practical concern: whether on the true interpretation of article 1 of the ECHR British troops operating on foreign soil fell within the jurisdiction of the United Kingdom (the jurisdiction issue); and whether the fresh inquest into the death of Private Smith must conform with the procedural requirements implied into article 2 (the inquest issue).
+The Court of Appeal answered both questions in the affirmative.
+The Supreme Court allowed the appeal on the jurisdiction issue (Lady Hale, Lord Mance and Lord Kerr dissenting) and unanimously dismissed the appeal on the inquest issue.
+It held that it was not necessary in every case of a death of a serviceman abroad to carry out an investigation which examined whether there was fault on the part of the state because (a) the Human Rights Act 1998 did not apply to armed forces on foreign soil and (b) in any event, there was no such automatic right.
+The type of investigation would depend on the circumstances of the case.
+The jurisdiction issue Lord Phillips stated that the European Court of Human Rights in Strasbourg had held that jurisdiction within the meaning of article 1 was essentially territorial but extended in exceptional circumstances requiring special justification to other bases of jurisdiction.
+The difficulty lay in defining those exceptions [para 11].
+It was unlikely that the Contracting States, when they agreed the ECHR in 1951 in the aftermath of a global conflict in which millions of troops had been deployed, regarded it as desirable or practicable to extend the protection of article 2 to troop operations abroad [para 58].
+It was a novel suggestion that a states armed forces by reason of their personal status fell within the jurisdiction of the state when on foreign soil and the proper tribunal to resolve the issue was the Strasbourg Court itself [para 60].
+Lord Collins observed that in practice the exceptions recognised by the Strasbourg court had consisted of (i) territorial jurisdiction by a state over the territory of another contracting state; (ii) extensions of territorial jurisdiction by analogy and (iii) commonsense extensions of the notion of jurisdiction to fit cases which plainly should be within the scope of the ECHR [para 305].
+This case came within none of them.
+Jurisdiction could not be established simply on the basis of the UKs authority and control over them, nor were there policy grounds for extending the scope of the ECHR to armed forces abroad, which would ultimately involve the courts in issues relating to the conduct of armed hostilities which were essentially non justiciable [para 308].
+Lord Mance, dissenting, considered that as an occupying power in Iraq, the UK had under international law an almost absolute power over the safety of its forces.
+The relationship was not territorial but depended on a reciprocal bond of authority and control on the one hand and allegiance and obedience on the other [para 192].
+In his view the Strasbourg court would hold that the armed forces of a state were within the meaning of article 1 and for the purposes of article 2 wherever they might be [para 199].
+Lord Kerr agreed.
+If the state could export its jurisdiction by taking control of an area abroad it could equally do so when it took control of an individual.
+In his view this had already been recognised albeit obliquely by the Strasbourg court [para 331].
+The inquest issue Lord Phillips stated that where there was reason to suspect a substantive breach by the state of the article 2 right to life, it was established that the state of its own motion should carry out an investigation into the death which had certain features: a sufficient element of public scrutiny, conducted by an independent tribunal, involving the relatives of the deceased and which was prompt and effective [para 64].
+There was no automatic right to such an investigation whenever a member of the armed forces died on active service [para 84].
+The UK had a staged system of investigation into deaths.
+Some form of internal investigation would always be held into military deaths in service [para 85] and a public inquest was required whenever a body was brought back to this country.
+This would satisfy many of the procedural requirements of article 2.
+If, in the course of the inquest, it became apparent that there might have been a breach by the state of its positive article 2 obligations, this should, insofar as possible, be investigated and the result reflected in the coroners verdict, so as to satisfy the procedural requirements of article 2 [para 86].
+In Private Smiths case, the courts below were correct to hold that the coroner should have found a possibility that there had been a failure of the system to protect soldiers in extreme temperatures.
+It followed that the new inquest should comply with the procedural requirements of article 2 [paras 87 and 88].
+Lord Rodger considered that the Secretary of State had correctly conceded that an article 2 investigation was needed on the facts of this case but this was not always the position.
+The protection of the armed forces could never be complete; deaths and injuries were inevitable.
+It was for this very reason that the armed forces deserved and enjoyed the admiration of the community [para 122].
+It was contrary to the very essence of active military service to expect the authorities to ensure that troops would not be killed or injured by opposing forces [para 125].
+Furthermore, many issues of concern to the relatives of soldiers killed on active service raised questions of policy not legality, and would fall outside the scope of any investigation by a coroner [para 127].
diff --git a/UK-Abs/train-data/summary/uksc-2009-0108.txt b/UK-Abs/train-data/summary/uksc-2009-0108.txt
new file mode 100644
index 0000000000000000000000000000000000000000..591521af654993d85d06b70cf58cb81c74a68a08
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2009-0108.txt
@@ -0,0 +1,47 @@
+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.
diff --git a/UK-Abs/train-data/summary/uksc-2009-0119.txt b/UK-Abs/train-data/summary/uksc-2009-0119.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e1854844ebe6981bec8820e2b1c94d07d21b94bb
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2009-0119.txt
@@ -0,0 +1,31 @@
+Sark is an island in the Channel Islands of about 600 inhabitants.
+In this appeal, Sir David and Sir Frederick Barclay sought to challenge new constitutional arrangements in Sark contained in the Reform (Sark) Law 2008.
+Under the Reform Law, the electorate (of about 500 people) vote for 28 members of Sarks legislature, which is called the Chief Pleas.
+But there are two members of the Chief Pleas who are not elected.
+The first is the Seigneur (or Lord) of Sark, who holds a title first granted by Queen Elizabeth I in the sixteenth century.
+Although he may speak, the Seigneur cannot vote at any meeting of the Chief Pleas, but he does have a power temporarily to veto Ordinances of the Chief Pleas.
+The second is the Seneschal (or Steward), whose office was created by the Crown in the seventeenth century.
+The Seneschal convenes meetings of and presides over the Chief Pleas, but has no power to speak in debates or to vote.
+Historically, both the Seigneur and the Seneschal were able to vote in the Chief Pleas.
+The Barclay brothers argued that the position of the Seigneur and the Seneschal, under the new arrangements, was incompatible with Article 3 of the First Protocol to the European Convention on Human Rights, which protects the free expression of the opinion of the people in the choice of the legislature.
+They argued that the effect of that Article is that all members of a single chamber legislature must be elected members.
+An appeal was also brought by Dr Tomas Slivnik, who wanted to stand for election to the Chief Pleas.
+He argued that the Reform Law discriminated against him contrary to the European Convention.
+He said that this was because, even though he had a right to vote as a resident, he nevertheless did not have a right to stand for election as he was a citizen of Slovenia.
+The Supreme Court held that the unelected position of the Seigneur and the Seneschal was not incompatible with Article 3 of the First Protocol to the European Convention on Human Rights.
+It held also that the restriction on Dr Slivniks standing for election complied with his Convention rights.
+The appeals were unanimously dismissed.
+The leading judgment was given by Lord Collins, with whom the other Justices (Lords Hope, Scott, Brown and Neuberger) agreed. [ As to whether the position of the Seneschal and the Seigneur in the Chief Pleas of Sark, as provided for in the Reform Law, was a breach of Article 3 of the First Protocol to the European Convention on Human Rights: There was no invariable rule in Article 3 of the First Protocol that all members of a legislature had to be elected irrespective of their powers and irrespective of the circumstances [67], [70].
+Until 1922 the composition of the Chief Pleas reflected the feudal system in Sark and between 1922 and 2008 the feudal Tenants dominated the Chief Pleas.
+Against that background, and in light generally of the constitutional history and the political factors relevant to Sark, the position of the Seigneur and the Seneschal was well within the margin of appreciation given to Contracting States to the Convention under Article 3 of the First Protocol.
+The free expression of the opinion of the people of Sark was not impeded by their membership of the Chief Pleas [71] [72], [74].
+The Seigneurs power temporarily to veto legislation was proportionate and consistent with Article 3 of the First Protocol.
+In reaching that conclusion, it was legitimate to take account of the fact that the power had not been used in modern times, and that the Seigneur had indicated it would only be used in very limited circumstances [78].
+The Seneschals powers were those which any presiding officer would be given or would need.
+His position could not realistically be said to impair the essence of the rights under Article 3 of the First Protocol [83].
+As to whether the prohibition imposed by the Reform Law on persons who are aliens from standing for election to the Chief Pleas of Sark is a breach of the right under Article 3 of the First Protocol, read alone and / or in conjunction with Article 14 of the Convention: Under the European Convention, as reflected in the decisions of the Strasbourg Court and in the practice of the members of the Council of Europe, it is citizens, and not non resident aliens, who have the right to vote and stand for election.
+There may be some exceptions, but the general rule is clear [93].
+Article 3 of the First Protocol does not require a justification for qualifications which are stricter for standing for election than for voting.
+Historical and political factors have determined the definition of alien in UK law.
+Eligibility for standing for election in Sark was limited to those with a genuine connection with Sark in the form of residence or ownership of property.
+It was clear that in the light of those factors and the breadth of the margin of appreciation, the exclusion of aliens from eligibility to stand for election was justifiable [95].
diff --git a/UK-Abs/train-data/summary/uksc-2009-0151.txt b/UK-Abs/train-data/summary/uksc-2009-0151.txt
new file mode 100644
index 0000000000000000000000000000000000000000..b7527f0a4a11428e0a3ed8f6c33c7255142ffe60
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2009-0151.txt
@@ -0,0 +1,20 @@
+The Supreme Court unanimously dismisses the Secretary of States Appeal holding that the Reception Directive can apply to second and subsequent applications for asylum.
+Lord Kerr delivered the judgment of the Court.
+The Supreme Court identified two principal issues in the appeal: (1) whether Article 11 of the Reception Directive applies to a person who has had an application for asylum in the United Kingdom finally determined against him when he makes a further application for asylum, and (2) whether the Court should apply for a reference to the European Court of Justice for a preliminary ruling on the proper interpretation of the Reception Directive, in particular whether it is intended to cover only the first application for asylum made by an individual to a Member State (paras [8][9]).
+In relation to the first issue, considering the context in which the Reception Directive was made, it is clear that it was part of a comprehensive charter dealing with the various aspects of asylum applications.
+The Procedures Directive, which was adopted ten months after the Reception Directive was required to be transposed into national law and sets out minimum standards on procedures in Member States for granting and withdrawing refugee status, is part of that charter.
+Article 2 of both Directives contain virtually identical definitions for the terms application for asylum and applicant or asylum seeker.
+There can be no doubt that subsequent applications for asylum come within the definitions contained in Article 2 of the Procedures Directive.
+For the Secretary of State to be correct therefore, the expression application for asylum must be given a different meaning in each of two Directives.
+Whilst as a matter of general principle, later legislation should not operate to change the established meaning of an earlier enactment, the later legislation may give an insight into the proper interpretation of the earlier instrument.
+In any event, in this case the matter is put beyond doubt by an examination of the legislative history of the two measures (paras [14][15], [22][28]).
+The proposal for the Reception Directive makes it clear that it had always been intended not only that the definitions of applicant for asylum in both Directives should be the same but also that an application should not be regarded as having been subject to a final decision until all possible remedies had been pursued and determined.
+This can only mean that subsequent applications would fall within the definitions of application for asylum and asylum seeker in the Reception Directive.
+Accordingly, an application for asylum in the Reception Directive must be interpreted to include a subsequent application made after an original application has been determined and asylum seeker should be construed accordingly to include a person who makes such a subsequent application (paras [29][30]).
+Having decided to dismiss the appeals for the reasons set out above, the Court then considered the Secretary of States arguments that numerous anomalies would arise if the Reception Directive was held to apply to subsequent asylum claims.
+The Court concludes that none of the claimed anomalies leads to the view that it was intended that the Reception Directive should not apply to subsequent asylum applications.
+On the contrary, curious consequences would follow if the Reception were held not to apply to such applications (paras [33][42]).
+The Secretary of State further argued that if the Reception Directive is held to apply to subsequent applications for asylum, the potential for abuse of the system would be greatly increased.
+The Secretary of States concern was that applicants would bring wholly unmeritorious claims with the aim of delaying their removal and gaining access to the benefits that the Reception Directive confers.
+Whilst there was some force in the Secretary of States arguments in this context, the Court considers that the problem of unmeritorious applications should be dealt with not by disapplying the Reception Directive to all repeat applications but by identifying and disposing promptly of those which have no merit and ensuring that genuine applicants are not deprived of the minimum conditions that the Reception Directive provides for (paras [43][49]).
+On the second issue, the Court concluded, particularly in light of the legislative history of the Reception Directive and the Procedures Directive, that a reference to the ECJ was not required (paras [50][51]).
diff --git a/UK-Abs/train-data/summary/uksc-2009-0154.txt b/UK-Abs/train-data/summary/uksc-2009-0154.txt
new file mode 100644
index 0000000000000000000000000000000000000000..328a9dac69425a1a7e953cd26489259c728d7aa1
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2009-0154.txt
@@ -0,0 +1,31 @@
+The Respondent (LMUK) operates the Nectar loyalty card scheme (the scheme).
+As part of the scheme, it enters into contracts with certain retailers (redeemers).
+Under such contracts, each redeemer is required to provide customers (collectors) with goods and services wholly or partly in exchange for Nectar points.
+That they do so is essential to the functioning of the scheme.
+The collectors earn such points through purchases made from other retailers (sponsors), who pay LMUK for allowing them to do so.
+Those payments are subject to VAT, on the basis that LMUK provides a taxable supply of services.
+The Respondent pays each redeemer a service charge for allowing customers to exchange points for goods or services.
+LMUK sought to deduct the VAT element of the service charge as input tax on the basis that, under the relevant EU legislation, the service charge was paid by LMUK to the redeemers for a service supplied to it for the purpose of its business.
+The Appellant (the Commissioners) maintained that under that legislation the service charge constituted third party consideration for the redeemers supply of goods and services to collectors, and that therefore LMUK could not deduct input tax.
+When the issue came before the House of Lords, it referred the question of how to characterise the service charge under EU law to the Court of Justice of the European Union (CJEU).
+The CJEU concluded that the service charges amounted, at least in part, to third party consideration.
+When the case returned to the Supreme Court, it nevertheless decided ([2013] UKSC 15) by a majority of three to two that LMUK was entitled to deduct the VAT element of the service charge.
+It did so on the basis that, having regard to the contractual relationships between LMUK, the sponsors, the collectors and the redeemers, the service charge was paid by LMUK to the redeemers for a service supplied to LMUK for the purpose of its business.
+The Court respectfully declined to follow the CJEUs characterisation of the service charge as third party consideration on the basis that the terms of the reference to it by the House of Lords had precluded the CJEU from considering all relevant aspects of the relationships between the parties involved in the Nectar scheme.
+The Court allowed the parties an opportunity to make written submissions as to the form of the order it should make.
+The Commissioners invited the Court to make a further reference to the CJEU on two principal grounds.
+First, they argued that a national court is obliged under EU law to make a further reference if it finds the ruling of the CJEU on the first reference to be incomplete or unsatisfactory.
+Second, they argued that there must be an issue of EU law raised in the present appeal on which a decision is necessary and which cannot be considered to be reasonably clear, as the Supreme Court decided the case by a narrow majority.
+LMUK opposed a further reference and invited the Court to dismiss the appeal.
+The Supreme Court unanimously refuses the Commissioners request for a further reference to the CJEU and dismisses the appeal.
+Lord Reed gives the judgment of the Court.
+The Court rejects the Commissioners first principal argument [4 5].
+It notes that its previous judgment had not questioned the CJEUs ruling on any question of EU law, but rather had proceeded on the basis of a more comprehensive account of the facts than the CJEU was afforded.
+The Courts previous judgment had, first, considered that the CJEUs judgment had identified the relevant principles of law but had applied them to the incomplete factual scenario it had been presented with by the House of Lords and, second, applied those principles to the fuller factual account of which it was apprised.
+As such, no question of EU law now arises and a further reference is not necessary.
+The Court also rejects the Commissioners second principal argument [6].
+It does so on the basis that, in the Courts previous judgment, the majority considered that the case could be decided by applying well established principles to the facts of the case.
+Further, the majority and the minority both acknowledged that the CJEU judgment dealt with the case on the basis that it raised no new point of law.
+The issues raised by the minority in the previous judgment, so far as relating to EU law, are not considered to require or justify a further reference to the CJEU.
+As a result of the above findings, the Court does not consider a further reference to the CJEU to be necessary.
+It also notes that it would be unfortunate if the position were otherwise, given that this litigation commenced in 2003 [7].
diff --git a/UK-Abs/train-data/summary/uksc-2009-0165.txt b/UK-Abs/train-data/summary/uksc-2009-0165.txt
new file mode 100644
index 0000000000000000000000000000000000000000..d881d55e533fb73f5d9a9dad8c1aeabaf58a4be0
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2009-0165.txt
@@ -0,0 +1,27 @@
+The central issue on this appeal is whether the Government of Pakistan was a party to and bound by an arbitration agreement, so that an award made by an arbitral tribunal under that agreement can be enforced against the Government of Pakistan in the United Kingdom.
+The appellant company (Dallah) is a member of a group providing services for the Holy Places in Saudi Arabia.
+In July 1995, it concluded a Memorandum of Understanding with the respondent Government (the Government) for the provision by Dallah of housing for pilgrims.
+In January 1996 the Awami Hajj Trust (the Trust) was established and subsequently continued by various ordinances of the President of Pakistan.
+In September 1996, after Dallah put forward a revised proposal which differed from the Memorandum of Understanding and after further negotiations with the Government, an agreement between Dallah and the Trust was signed (the Agreement).
+The Agreement contained an arbitration clause, whereby any dispute between Dallah and the Trust arising out of the Agreement was to be settled by arbitration.
+In December 1996, the ordinances lapsed and were not renewed, and Trust ceased to exist as a legal entity.
+Dallah invoked arbitration against the Government in May 1998.
+On 23 June 2006 an International Chamber of Commerce arbitral tribunal sitting in Paris made an award in favour of Dallah in the sum of US$20,588,040 against the Government.
+Dallah applied to the High Court in England for leave to enforce the award in this country.
+The award was an award within the meaning of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958.
+Article V(1)(a) of the Convention and s.103 of the Arbitration Act 1996, which transposes Article V(1)(a) in the UK, provide that enforcement of an award may be refused if the arbitration agreement was not valid under the applicable law, which is the case, in particular, if the person against whom enforcement is sought was not a party to the agreement.
+The applicable law was in this case French law, where the arbitral tribunal sat and made its award.
+The High Court held that the Government was not a party to the Agreement or therefore to the arbitration agreement and refused leave to enforce the award.
+The Court of Appeal upheld the decision and Dallah appealed to the Supreme Court.
+The Supreme Court unanimously dismisses the appeal.
+It holds that the Government was not a party to the arbitration agreement.
+An initial issue was the status and weight of the arbitral tribunals own decision that it had jurisdiction, based on its conclusion that the Government was a party to the Agreement and so to the arbitration agreement.
+The Supreme Court, while recognising that a tribunal has jurisdiction to determine its own jurisdiction for its own purposes, held that a court, whether within the country where the tribunal is located or within a foreign country where an attempt is made to enforce the award, can and must revisit the question of jurisdiction.
+The arbitral tribunal could only have jurisdiction by consent, and could not give itself jurisdiction, if there was no relevant consent under the applicable law.
+Whether consent exists is an issue subject to ordinary judicial determination.
+Article V of the Convention safeguards the right of a party which has not agreed to arbitration to object to the jurisdiction of the tribunal.
+The language of Article V(1)(a) of the Convention and s.103(2)(b) of the 1996 Act requires the English court to revisit the tribunals decision on jurisdiction where the person resisting enforcement maintains that it was not party to any relevant arbitration agreement under the applicable law. [26] [31]; [79] [104] The central issue in the case was whether the Government could establish that, applying French law principles, there was no common intention on the part of the Government and Dallah, such as would make the Government a party to the Agreement.
+The Court held that the Government had established that there was no such common intention, having regard amongst other matters to: The clear change in the proposed transaction from an agreement with the Government (the Government was a party to the initial Memorandum of Understanding) to an agreement with the Trust. [134] The deliberate structuring of the Agreement to be between Dallah and the Trust: the Governments only role under the Agreement was to guarantee the Trusts loan obligations and to receive a counter guarantee from the Trust.
+Further, Dallah was throughout the transaction advised by lawyers who must have understood the difference between an agreement with a State entity and an agreement with the State itself. [42] [43]; [133] [136] The fact that the Trust was established as a body corporate capable of holding property and of suing and being sued. [135] The fact that it was the Trust which commenced proceedings against Dallah in Pakistan in 1997. [137] A final issue in the case concerned the nature and existence of any discretion to be found in Article V(1) and s.103(2), which provide that recognition or enforcement of the award may be refused if the arbitration agreement is proved to be invalid.
+Dallah submitted that even if the Government could prove that it is not bound by the Agreement, the Court should exercise its discretion under Article V(1) and s.103(2) to enforce the award.
+The Court refused to do this, saying that, in the absence of some fresh circumstance such as another agreement, it would be remarkable if the word may enabled a court to recognise or enforce an award which it found to have been made without jurisdiction. [68]
diff --git a/UK-Abs/train-data/summary/uksc-2009-0166.txt b/UK-Abs/train-data/summary/uksc-2009-0166.txt
new file mode 100644
index 0000000000000000000000000000000000000000..d9f7f4e19f4ac7c809df99aea0b033e5e06d0d8d
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2009-0166.txt
@@ -0,0 +1,50 @@
+This appeal considers the scope of what is known in public procurement law as the Teckal exemption.
+It considers whether a local authority was entitled to enter into contracts of insurance with a mutual insurer, established in co operation with other local authorities, without first putting those contracts out to tender in accordance with the Public Contracts Regulations 2006 (the UK Regulations) In 2006 and 2007 various London local authorities co operated and entered arrangements for mutual insurance.
+The aim was to reduce the cost of insurance premiums, by removing the element of profit built in to an ordinary commercial insurance premium, and to increase the standard of risk management.
+London Authorities Mutual Limited (LAML) was established in order to provide insurance to participating London authorities and their affiliates.
+Brent London Borough Council (Brent) was one of ten authorities involved.
+It became a member of LAML, made a payment in order to capitalise LAML and also provided a guarantee, undertaking to pay further sums to LAML on demand.
+Once LAML was established, it contracted to provide Brent with insurance.
+Brent did not conduct a tendering process for the award of the contract of insurance which it entered into with LAML.
+Risk Management Partners (RMP), a commercial insurer, claimed that there should have been a tendering process complying with the UK Regulations and that, had one been carried out, it might have obtained the insurance which was placed with LAML.
+RMP claimed damages from Brent.
+Although that claim has now been settled, the Courts decision will determine other damages claims against various other London authorities and will clarify for the future whether the UK Regulations apply to contracts which a public body proposes to award to an organisation such as LAML.
+The UK Regulations apply whenever a contracting authority seeks offers in relation to the award of certain public contracts.
+They give effect in domestic law to an EU Directive, Council Directive 2004/18/EC on the co ordination of procedures for the award of public work contracts, public supply contracts and public service contracts (the Directive).
+It applies to the award of public contracts.
+Case law of the European Court of Justice has developed an exception, known as the Teckal exemption.
+It provides that, in certain circumstances, the award of a contract by one public body to another separate legal person will not fall within the definition of public contract in the Directive, with the result that the Directive will not apply to it and EU law will not require the contract to be put out to tender.
+The Teckal exemption comprises both a control test and a function test. (1) The local authority must exercise over the person to whom the contract is proposed to be awarded a control which is similar to that which it exercises over its own departments, and (2) that person must carry out the essential part of its activities with the controlling local authority or authorities.
+This appeal concerned three questions of principle. (1) Does the Teckal exemption apply to the UK Regulations at all? (2) Does the Teckal exemption apply to contracts of insurance? (3) In order for the Teckal exemption to apply, must the control which the contracting authority exercises over the contractor be exercised by that authority individually or is it sufficient that it could be exercised collectively, together with other local authorities?
+The High Court and the Court of Appeal held that the Teckal exemption did apply to the UK Regulations and that it was available in respect of contracts of insurance.
+However, they concluded that the control test was not satisfied because LAML was too independent from the local authorities which made up its membership.
+The claim between RMP and Brent having settled, Harrow was given permission to continue the appeal so as to have the issues of principle decided.
+The Supreme Court unanimously allows the appeal.
+It holds that the Teckal exemption does apply to the UK Regulations, that it is available in respect of insurance contracts and that it is sufficient for it to apply that the co operating public authorities together exercise collective control over the party to whom contracts are awarded.
+The requirements of the Teckal exemption were satisfied.
+Lord Hope and Lord Rodger both give judgments; Lord Walker, Lord Brown and Lord Dyson agree with both.
+The Teckal exemption applies to the UK Regulations.
+Although the definitions in the UK Regulations differ in some respects from the Directive, the purpose of the UK Regulations was to give effect in domestic law to the Directive.
+There is nothing to indicate that the UK Regulations intended to depart from the European Court of Justices case law: [22] [26], [92].
+The Teckal exemption is available in respect of contracts of insurance.
+It did not matter that insurance was not a service that the local authority could provide for itself.
+What matters is whether the arrangement satisfies the control test: [27] [30].
+Both Lord Hope and Lord Rodger review the ECJ case law to consider the purpose and scope of the Teckal exemption.
+The Directive is not intended to protect the commercial sector by forcing public authorities to obtain the services which they need on the commercial market.
+Rather, its purpose is to ensure that, if public authorities do decide to obtain the services which they need from outside bodies, proper procedures are followed to ensure that potential providers have an opportunity to compete for the work.
+The Directive therefore does not apply where a public authority obtains the product or services from its own resources.
+Nor, in light of Teckal, does it apply where an authority obtains services from a separate body which is so closely connected with it that the authority should still be regarded as, in substance, obtaining the services in house.
+There is no reason in principle to distinguish between a situation where the body from which services are obtained exists to serve the interests of a single local authority and where it exists to serve the interests of several local authorities: [67] [73].
+The Teckal control test requires that the public authority exercise a power of decisive influence over both the strategic objectives and significant decisions of the other body: [40].
+That need not be exercised individually.
+It is sufficient that the public authority could exercise control over the contractor alone or together with other public authorities: [41], [45], [47] [49], [52], [80] [85].
+There must be no private investment in the contractor: [53] & [75].
+No injury will be caused to the policy objectives of the Directive if public authorities are allowed to participate in the collective procurement of goods and services, so long as no private interests are involved and they are acting solely in the public interest in the carrying out of their public service tasks: [53].
+The argument that individual control is necessary is simply inconsistent with European Court of Justices thinking: [80].
+Here, the participating local authorities did exercise collective control over LAML.
+Meetings of LAMLs board were not validly constituted unless a majority of those present were directors representing a participating member.
+Participating local authorities each had one vote at general meetings and retained a power to direct the board by special resolution.
+The fact that a director could not participate in a board meeting which considered a claim by a member which he or she represented was a matter of detail: [57].
+No private interests were involved.
+The function test was also satisfied.
+LAML existed only in order to serve the insurance needs of its members: [59]
diff --git a/UK-Abs/train-data/summary/uksc-2009-0202.txt b/UK-Abs/train-data/summary/uksc-2009-0202.txt
new file mode 100644
index 0000000000000000000000000000000000000000..9031ceeff5fcb8e0bbb462139008713afa6426af
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2009-0202.txt
@@ -0,0 +1,26 @@
+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].
diff --git a/UK-Abs/train-data/summary/uksc-2009-0210.txt b/UK-Abs/train-data/summary/uksc-2009-0210.txt
new file mode 100644
index 0000000000000000000000000000000000000000..c001ea6498f9f69a15b7fb732ba138f7d6441b05
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2009-0210.txt
@@ -0,0 +1,36 @@
+BACKGROUND TO THE APPEAL This appeal required the Supreme Court to consider the defence of fair comment in defamation proceedings, in particular the extent to which the factual background giving rise to the comment had to be referred to with the comment itself and be accurately stated.
+The respondents are members of a musical group known as The Gillettes or Saturday Night at the Movies.
+The appellants provide entertainment booking services.
+The respondents appointed the appellants to promote their acts, entering into a contract which included a re engagement clause, under which any further bookings at the same venue in the following 12 months had to be made through the appellants.
+The appellants arranged a booking for the respondents at Bibis restaurant in Leeds.
+The respondents agreed to perform again at Bibis three weeks later without reference to the appellants.
+The first appellant emailed the first respondent to complain of the breach of the re engagement clause.
+The first respondent replied, contending that the contract was mearly (sic) a formality and holds no water in legal terms and that the other respondents were not bound by the re engagement clause as they had not signed the contract.
+The appellants thereafter posted a notice on their website announcing that they were no longer representing the respondents as they were not professional enough to feature in our portfolio and have not been able to abide by the terms of their contract and that following a breach of contract Craig Joseph who runs The Gillettes and Saturday Night at the Movies has advised 1311 Events that the terms and conditions of contracts hold no water in legal terms (27.03.07).
+For this reason it may follow that the artists obligations for your booking may also not be met.
+The respondents issued proceedings for libel, alleging that the posting meant that they were unprofessional and unlikely to honour any bookings made for them to perform.
+The appellants relied principally on the defences of justification and fair comment.
+Both were struck out in the High Court.
+The Court of Appeal reinstated the defence of justification but upheld the striking out of fair comment.
+The Supreme Court unanimously allows the appeal and holds that the defence of fair comment should be open to the appellants.
+The substantive judgment is given by Lord Phillips (President), with some additional comments from Lord Walker.
+The elements of the defence of fair comment had been set out by Lord Nicholls in the Hong Kong case of Tse Wai Chun Paul v Albert Cheng [2001] EMLR 777.
+His fourth proposition, namely that the comment must indicate in general terms the facts on which the comment is based, so that the reader was in a position to judge for himself how far the comment was well founded, had attracted criticism and was challenged by the appellants in this appeal [para 70].
+The defence had originated in respect of comments about work products such as books and plays, which necessarily identified the product.
+It had been complicated by developments which extended the defence to cover the conduct of individuals, where this was of public interest.
+Sometimes the facts underlying the comment were notorious; at other times they might be only known to the person making the comment.
+The only defence to a bare comment which implied the existence of unidentified discreditable conduct was justification [para 89].
+Fair comment could however be raised where the comment identified the subject matter general terms.
+Particulars could then be given in the defence which identified the features which led to the formation of the view expressed [para 96].
+Lord Nicholls requirement, that readers should be in a position to evaluate the comments for themselves, could not be reconciled with the authorities [para 98].
+This was so, even where the subject matter was not within the public domain.
+Today many people take advantage of the internet to make public comments and the defence would be robbed of much of its efficacy if readers had to be given detailed information to enable evaluation of the comment [para 99].
+The fourth proposition should be re written as follows: Next, the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based.
+The Supreme Court agreed that there was a case for reform of a number of aspects of the defence of fair comment which did not arise directly in this case [paras 112 116].
+The whole area merited consideration by the Law Commission or an expert committee.
+The only more general reform being made by this judgment was the re naming of the defence from fair comment to honest comment [para 117].
+Applying the law to the facts of this case, the posting by the appellants referred to the breach of contract relating to the Bibis restaurant, and to the respondents email, and these facts could be relied on.
+The email arguably evidenced a contemptuous approach to the respondents contractual obligations to the appellants.
+The email as quoted arguably evidenced a contemptuous attitude to contracts in general.
+It would be a matter for the jury to decide whether the inaccuracy in the quotation made a significant difference [para 124].
+The defence should therefore be reinstated.
diff --git a/UK-Abs/train-data/summary/uksc-2009-0232.txt b/UK-Abs/train-data/summary/uksc-2009-0232.txt
new file mode 100644
index 0000000000000000000000000000000000000000..f36a4b11aac0376aa029c9c5e6bac65b0eb18d44
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2009-0232.txt
@@ -0,0 +1,37 @@
+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]
diff --git a/UK-Abs/train-data/summary/uksc-2010-0108.txt b/UK-Abs/train-data/summary/uksc-2010-0108.txt
new file mode 100644
index 0000000000000000000000000000000000000000..cecf9d2afd292343939633061d9654f308a4d622
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2010-0108.txt
@@ -0,0 +1,47 @@
+This appeal concerns the permissibility of a procedure whereby a claimant in employment tribunal proceedings may be excluded along with his representatives from certain aspects of those proceedings on grounds of national security.
+In particular the question arises as to whether such a procedure, known as a closed material procedure, is compatible with European Union law and the European Convention on Human Rights.
+Mr Tariq was employed as an immigration officer with the Home Office until 2006 when he was suspended and his security clearance withdrawn.
+The background for these decisions was the arrest of Mr Tariqs brother and cousin during an investigation into a suspected plot to mount a terrorist attack on transatlantic flights.
+Mr Tariqs cousin was convicted in 2008 of various offences in relation to that plot.
+No information suggested that Mr Tariq had himself been involved in any terrorism plot.
+Mr Tariq commenced proceedings in the Employment Tribunal claiming direct and indirect discrimination on grounds of race and religion.
+He alleged that the Home Office had relied on stereotypical assumptions about him, Muslims and individuals of Pakistani origin such as susceptibility to undue influence and that the Home Office had indirectly discriminatory policies and procedures.
+The Home Office denied this and stated that its decisions were based on Mr Tariqs association with individuals suspected of involvement in terrorist activities and the risk of their attempting to exert influence on him to abuse his position.
+Section 10(6) of the Employment Tribunals Act 1996 provides that the Secretary of State may make regulations that enable a tribunal to adopt a closed material procedure if it considers this expedient in the interests of national security.
+Rule 54(2) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (the Regulations) provides for the adoption of a closed material procedure if the tribunal so orders.
+Schedule 2 provides for the use of special advocates, whose role is to represent a claimants interests so far as possible in relation to the aspects closed to him and his representatives.
+The Employment Tribunal made an order for a closed material procedure, directing that Mr Tariq and his representatives should be excluded from the proceedings when closed evidence or documents were being considered.
+Mr Tariq appealed the order to the Employment Appeal Tribunal.
+The appeal was dismissed and a further appeal was dismissed by the Court of Appeal.
+The Court of Appeal, however, declared that Article 6 of the European Convention on Human Rights required Mr Tariq to be provided with the allegations being made against him in sufficient detail to enable him to give instructions to his legal team so that those allegations can be challenged effectively.
+This requirement is known as gisting.
+The Home Office appealed to the Supreme Court against the declaration and Mr Tariq cross appealed against the conclusion that a closed material procedure was permissible.
+The Supreme Court by a majority of 8 1 allows the Home Offices appeal and sets aside the declaration made by the Court of Appeal requiring the provision of a gist.
+Lord Kerr dissents.
+The Supreme Court unanimously dismisses Mr Tariqs cross appeal, holding that a closed material procedure is compatible with Article 6 of the European Convention on Human Rights and EU Law.
+Mr Tariqs Cross Appeal The issue in the cross appeal was whether the provisions in the Regulations providing for a closed material procedure were contrary to EU law or the European Convention on Human Rights.
+It is a basic principle of EU law that national law should provide effective legal protection of EU law rights.
+Those rights include the right not to be discriminated against on grounds of race or religion.
+As to whether the closed material procedure provided effective legal protection, the case law of the European Court of Justice is clear that EU law will look for guidance on the subject in the case law of the European Court of Human Rights.
+That Court has established in a line of cases culminating in Kennedy v UK that the demands of national security may necessitate a system for determining complaints under which a claimant is, for reasons of national security, unable to know the secret material by reference to which his complaint is determined.
+The tests are whether the system is necessary and whether it contains sufficient safeguards.
+On the facts, both were satisfied.
+The system was necessary because security vetting is a highly sensitive area in which integrity of sources of information and the means of obtaining it must be protected.
+The alternatives of the Home Office routinely having to pay unmeritorious claims or the courts refusing to hear claims at all are not possibilities that the law should readily contemplate.
+The rule of law must, so far as possible, stand for the objective resolution of civil disputes on their merits by a court which has before it material enabling it to do so.
+The system contained sufficient safeguards in the form of special advocates, who can usefully protect the claimants interests.
+For these reasons the use of the closed material procedure in this case was lawful and the cross appeal must be dismissed.
+The Home Offices Appeal The question in the appeal was whether there is an absolute requirement that a claimant should be able to see the allegations against him in sufficient detail to give instructions to his legal team to enable the allegations to be challenged effectively.
+Mr Tariq argued that the European Convention on Human Rights contained such a principle.
+The Supreme Court, however, held that the line of cases culminating in Kennedy v UK recognised that there was no absolute requirement.
+Article 6 of the European Convention on Human Rights provides the right to a fair trial.
+The European Court of Human Rights has held that where the liberty of the subject is involved, Article 6 requires the provision of a gist as described by the Court of Appeal.
+In cases such as the present not involving the liberty of the subject, however, the question is whether the use of the closed material procedure will impair the very essence of the right to a fair trial.
+That cannot be said to be so in this case, as Mr Tariqs claim will be determined by an independent and impartial tribunal and the disadvantages that the procedure gives rise to will as far as possible be minimised.
+The appeal was therefore allowed.
+Lord Kerr dissented.
+He held, first, that the withholding of information from a claimant which is then deployed to defeat his claim is a breach of his fundamental common law right to a fair trial.
+The removal of that right can only be achieved by legislation framed in unambiguous language.
+Secondly, such withholding also constitutes a breach of a claimants Article 6 right to a fair trial.
+Kennedy v UK was an anomaly.
+Lord Kerr would therefore have dismissed the appeal.
diff --git a/UK-Abs/train-data/summary/uksc-2010-0130.txt b/UK-Abs/train-data/summary/uksc-2010-0130.txt
new file mode 100644
index 0000000000000000000000000000000000000000..ac1a10fff48cf3eb62381e0d3d955fa35b72e5ad
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2010-0130.txt
@@ -0,0 +1,49 @@
+This case concerns the correct approach to calculating beneficial interests in property where the legal title to the property is held in joint names by an unmarried couple but there is no express statement of how it is to be shared.
+Ms Jones and Mr Kernott met in 1981.
+They had two children together.
+In 1985 they purchased a house in Thundersley, Essex in their joint names.
+The price paid was 30,000 with a 6,000 deposit paid exclusively by the proceeds of sale from Ms Joness previous home.
+No declaration was made as to how the beneficial interest in the property was to be held.
+The mortgage and upkeep on the house was shared between them.
+In 1986 they jointly took out a loan of 2000 to build an extension.
+Mr Kernott did some of the work himself.
+The relationship deteriorated and in 1993 Mr Kernott moved out.
+From that point onwards Ms Jones lived in the Thundersley property with both children.
+In 1996 Mr Kernott bought his own house in Benfleet, Essex.
+Over the years, the value of the Thundersley property increased and in 2006 Mr Kernott indicated that he wished to claim a beneficial share in it.
+In response, Ms Jones, in 2007, applied to the county court for a declaration under section 14 of the Trusts of Land and Appointment of Trustees Act 1996 that she owned the entire beneficial interest in the property.
+By 2008 the property was valued at 245,000.
+The county court judge noted that the house was first purchased to set up a family home.
+It was bought in joint names and a presumption arose that they intended to jointly share the beneficial ownership of it as well.
+Up until 1993 there was no evidence to rebut that presumption.
+Ms Jones claimed however that in the 14 and a half years following there was evidence that their common intention had changed.
+Mr Kernott had ceased to make contributions towards the running of the house and had made only very limited contributions towards the support of their children.
+Furthermore it was mostly during that latter period that the value of the property had increased.
+The judge held that their common intention had indeed changed.
+In reliance upon the decision of the House of Lords in Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432, he held that once the initial presumption of joint beneficial ownership is displaced and there is no further clear evidence as to the division of shares in the property it falls upon the court to infer or impute an intention to the parties as to the division of the property that they, as reasonable and fair people, would have intended.
+He decided that Mr Kernott was entitled to only a 10% share.
+Mr Kernott appealed to the High Court arguing that it was wrong for the court to infer or impute a change of common intention and further wrong for the judge, in effect, to substitute a division that he considered to be fair as between the parties.
+Mr Nicholas Straus, QC sitting as a High Court judge dismissed his appeal.
+Mr Kernott appealed to the Court of Appeal which, by a majority (Jacob, LJ dissenting), allowed his appeal.
+The Supreme Court unanimously allows the appeal and restores the order of the county court.
+Lord Walker and Lady Hale give the lead judgment.
+Lord Collins agrees with Lord Walker and Lady Hale and adds some reflections of his own.
+Lord Kerr and Lord Wilson agree in the result but reach it by a different route.
+Lord Walker and Lady Hale: The principle recognised in Stack v Dowden is that where people purchase a family home in their joint names the presumption is that they intend to own the property jointly in equity also [15].
+The starting point is different in cases where the property is bought in the name of one party only.
+The presumption of joint beneficial ownership arises because (i) purchasing property in joint names indicates an emotional and economic commitment to a joint enterprise and (ii) the practical difficulty of analysing respective contributions to the property over long periods of cohabitation [19 22].
+The presumption may be rebutted by evidence that it was not, or ceased to be, the common intention of the parties to hold the property jointly.
+This may more readily be shown where the parties did not share their financial resources [25].
+In the absence of clear evidence of intention, a question arises as to when the court can infer such intention and when the court can, instead, impute an intention.
+An inference is drawn where an actual intention is objectively deduced from the dealings of the parties; an imputation is one attributed to the parties by the court [26 27].
+The search is primarily to ascertain the parties actual intentions, expressed or inferred but if it is clear that the beneficial interests are shared but impossible to infer a common intention as to the proportions in which they are shared, the court will have to impute an intention to them which they may never have had [31].
+The following principles apply: (i) the starting point where a family home is bought in joint names is that they own the property as joint tenants in law and equity; (ii) that presumption can be displaced by evidence that their common intention was, in fact, different, either when the property was purchased or later; (iii) common intention is to be objectively deduced (inferred) from the conduct and dealings between the parties; (iv) where it is clear that they had a different intention at the outset or had changed their original intention, but it is not possible to infer an actual intention as to their respective shares, then the court is entitled to impute an intention that each is entitled to the share which the court considers fair having regard to the whole course of dealing between them in relation to the property; and (v) each case will turn on its own facts; financial contributions are relevant but there are many other factors which may enable the court to decide what shares were either intended or fair [51].
+On the facts of this case the county court judge held that the parties intentions as regards the Thundersley property had changed after their separation.
+It was a logical inference that they intended [Mr Kernotts] interest in Badger Hall Avenue should crystallise in 1995, when they took the house off the market, cashed in an insurance policy, so that Mr Kernott was able to buy a house in his own name [48].
+The calculation of their shares on this basis produced a result so close to that produced by the judge that it would be wrong for an appellate court to interfere.
+Lord Collins agrees with Lord Walker and Lady Hale, holding that the differences in reasoning set out below are largely terminological and conceptual and are likely to make no difference in practice. [58].
+Lord Kerr holds that the divergence in reasoning might, in practice, make a difference [67].
+The question concerns how far the court should go in seeking to infer intention and when it is justified in imputing it.
+It is preferable to give effect to the parties intentions where possible but the courts should not be reluctant to recognise when it is not and to impute an intention accordingly.
+In agreement with Lord Wilson it is not possible to infer the intention in this case but the division that the judge made is a fair one as between the parties and should stand.
+Lord Wilson considers that on the facts of this case, it is impossible to infer the intentions of the parties and the court can only impute to the parties an intention that the house be held in fair proportions along the lines of those set out by the county court judge [89].
diff --git a/UK-Abs/train-data/summary/uksc-2010-0131.txt b/UK-Abs/train-data/summary/uksc-2010-0131.txt
new file mode 100644
index 0000000000000000000000000000000000000000..12f3a8be19b35cf89bba4d98fb81b10db4c5be55
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2010-0131.txt
@@ -0,0 +1,50 @@
+Scottish Widows Plc (Scottish Widows) is a life assurance company.
+It was established in 2000, when it acquired the business of Scottish Widows Fund and Life Assurance Society (the Society) under a scheme of transfer which had been approved by the Court of Session in Scotland.
+Scottish Widows acquired assets under the scheme which had an approximate value of 25bn, and it became subject to actuarial liabilities of approximately 19bn.
+Members of the Society received compensation of approximately 5.8bn, which represented the surplus of the Societys assets over its liabilities at the time of the transfer.
+The compensation was paid by Scottish Widows holding company, in return for the members of the Society giving up their right to participate in the surplus.
+The scheme provided that Scottish Widows was to establish and maintain a Long Term Business Fund (LTBF) to fund its long term insurance business.
+It also provided that there was to be a memorandum account within the LTBF, called the Capital Reserve.
+This was said to represent the value of shareholders capital within the LTBF.
+Life assurance companies are required to submit annual regulatory returns, in particular to demonstrate solvency.
+Various forms are prescribed for these returns.
+One these is known as Form 40, which is a revenue account in respect of the LTBF.
+In the years following transfer the value of the assets of Scottish Widows LTBF fell substantially, principally because of falls in the stock markets.
+To cover those losses and to allow for distributions to policyholders, Scottish Widows brought into account amounts on Form 40 for each of the accounting periods 2000, 2001 and 2002.
+These amounts were recorded in line 15 of the relevant Form 40s.
+They were described as transfers from the Capital Reserve.
+Section 83 Finance Act 1989 provides for certain sums to be brought into account in the computation of the profits of an insurance company in respect of its life assurance business for the purposes of corporation tax.
+In the terms that were in force between 2000 and 2003 section 83(2) provided that: [T]he following items, as brought into account for the period of account (and not otherwise), shall be taken into account as receipts of the period (a) the companys investment income from the assets of its long term business fund, and (b) any increase in value (whether realised or not) of those assets.
+Section 83(3)(a) made provision for ascertaining whether or to what extent a company had incurred a loss in respect of its life assurance business where an amount was added to an insurance companys long term business fund as part of or in connection with a transfer of business to that company.
+The Revenue maintained that the amounts to be brought into account as receipts for the computation of profits or losses for tax purposes under section 83(2)(b) or, in the alternative, under section 83(3)(a) were the amounts shown in line 15 on Form 40.
+It maintained that the reference to a difference in value as brought into account directed attention to the figures that had been entered on Form 40, not the market value of the assets of the LTBF.
+Scottish Widows argued that the words increase in value in section 83(2)(b) meant an increase in the actual value of actual assets, and that the words as brought into account were concerned with when the
+increase was brought into account, not the extent of the increase.
+Here the value of the assets of the LTBF had fallen during each of the relevant periods.
+So there was no increase which could be brought into account.
+The parties referred the question whether, in computing the Case I profit or loss of Scottish Widows for the accounting periods ending in 2000, 2001 and 2002, the amounts that fell to be taken into account as receipts to the Special Commissioners were the amounts shown in line 15 of Form 40.
+It was agreed that, if Scottish Widows argument that it is actual values and not those amounts that should be taken into account is correct, it will have allowable losses in respect of those years of 28.7m, 612.6m and 431.3m.
+The Special Commissioners answered the question in the affirmative.
+They held that, although the amounts shown on Form 40 were not to be brought into account by section 83(2), they were covered by section 83(3)(a).
+The Inner House unanimously dismissed the Revenues appeal against the decision on section 83(2) and by majority (Lord Emslie dissenting) dismissed Scottish Widows cross appeal against the decision in respect of section 83(3)(a).
+Scottish Widows appealed and the Revenue cross appealed.
+The Supreme Court unanimously allows the Revenues cross appeal and holds that the amounts that were to be taken into account as receipts by virtue of section 83(2) were the amounts shown on Form 40.
+It therefore answers the question that was referred to the Special Commissioners in the affirmative.
+Lord Hope and Lord Walker both give detailed judgments.
+Lady Hale and Lord Neuberger give shorter judgments, agreeing with each other and with Lord Hope and Lord Walker.
+Lord Clarke agrees with all of the judgments.
+Although the applicable statutory provisions had been amended on various occasions, it was not helpful to look at their legislative history.
+That should only be done where there is an interpretative difficulty which classical methods of construction cannot solve.
+The proper approach was to concentrate on the wording of sections 83(2) and (3)(a) as they were during the relevant accounting periods: [15], [73], [122] [124].
+Lord Walker analyses in detail the regulatory and taxation regime which applies to life assurance companies and the particular features of the demutualisation scheme so as to provide a backdrop to the statutory construction: [40] [71].
+There were two particularly important points.
+One was that when completing regulatory returns, book values could be used, and that an insurer enjoyed a certain freedom in determining what amount of its actuarial surplus to recognise in its returns: [82] [86].
+It was also particularly important to appreciate the nature of the Capital Reserve.
+It was not a fund of particular assets, separate from the LTBF, but was merely an accounting category recording an initial value within the LTBF: [87] [91] [101].
+The key to interpreting section 83(2) was the phrase as brought into account and, in particular, the use of the word as: [22], [76], [116], [125].
+This demonstrated that the computation must proceed on basis of what was actually entered on the appropriate regulatory account, in this case the form known as Form 40.
+It was important that, when completing its returns, an insurance company should be permitted to use book values: [20].
+The various arguments which were advanced in favour of Scottish Widows construction, based on general principles of interpreting tax legislation ([24] [26], [101] [102]), the statutory scheme and specific aspects of the drafting ([23], [107] [112]), fell to be rejected in the face of this clear statutory language.
+The Special Commissioners and, to some extent, the Court of Session had attached too much weight to the label Capital Reserve, which had led them to attach undue weight to the notion that capital gains ought not to be taxed under Schedule D, Case I: [26], [101].
+Given that the Court allows the Revenues cross appeal, a majority preferred to express no view on section 83(3)(a).
+Lord Hope indicated that, had it been necessary to decide the point, he would have held in agreement with the majority in the Inner House that the relevant amounts would have been covered by section 83(3)(a): [28] [31].
diff --git a/UK-Abs/train-data/summary/uksc-2010-0152.txt b/UK-Abs/train-data/summary/uksc-2010-0152.txt
new file mode 100644
index 0000000000000000000000000000000000000000..3204902759a237b42fab3ac9e60f920e87625661
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2010-0152.txt
@@ -0,0 +1,26 @@
+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].
diff --git a/UK-Abs/train-data/summary/uksc-2010-0156.txt b/UK-Abs/train-data/summary/uksc-2010-0156.txt
new file mode 100644
index 0000000000000000000000000000000000000000..69a71b238220a946ab42e918a2c7a218b744dfd6
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2010-0156.txt
@@ -0,0 +1,30 @@
+On 24 October 2007 and again on both 3 and 13 April 2008 the Respondent, Mr Varma, was stopped at Gatwick Airport and found to be in possession of a quantity of tobacco which he had brought into the United Kingdom without having made payment of the relevant import duties.
+On 27 November Mr Varma was convicted in the Crown Court of being knowingly concerned in fraudulently evading duty chargeable on goods, contrary to section 170(2)(a) of the Customs and Excise Management Act 1979.
+Following this, on 15 January 2009 the judge made Mr Varma subject to a conditional discharge under section 12 of the Powers of Criminal Courts (Sentencing) Act 2000 (the 2000 Act), the condition being that he did not commit any further offence for a two year period from the date of the order.
+Confiscation proceedings under Part 2 of the Proceeds of Crime Act 2002 (the 2002 Act) were postponed until 3 April 2009.
+On that date the judge made a confiscation order depriving Mr Varma of the profits of his crimes to the extent of the amount available for recovery.
+The judge valued that sum at 1,500 and made a confiscation order in that amount.
+On 13 July 2009 Mr Varma sought leave to appeal out of time against the confiscation order on the basis that there was Court of Appeal authority (R v Clarke [2009] EWCA Crim 1074) to the effect that the Crown Court has no power to impose a confiscation order against an offender following conviction for an offence in respect of which the offender has been absolutely or conditionally discharged.
+This reflected the fact that the Court could only discharge an offender where it was of the opinion that it would be inexpedient to inflict punishment; this is subject to a number of specified exceptions listed in section 12(7) of the 2000 Act which the Court would not be prevented from imposing on an offender subject to a discharge.
+Given that section 12(7) made no reference to confiscation orders the Court in Clarke held that confiscation proceedings could not be brought where an offender is absolutely or conditionally discharged.
+The Court of Appeal granted permission to appeal, allowed Mr Varmas appeal and quashed the confiscation order, holding that it was bound by the decision in Clarke.
+However, the Court made clear that, but for the decision in Clarke, it would have reached the contrary conclusion and allowed the confiscation order to be made.
+The Court of Appeal certified the following point of law of general public importance for consideration by the Supreme Court of the United Kingdom: Does the Crown Court have power to make a confiscation order against a defendant following conviction for an offence if he or she receives an absolute or conditional discharge for that offence? The Supreme Court of the United Kingdom granted permission to appeal.
+The Supreme Court unanimously allows the appeal; the Crown Court has the power and, where the criteria in section 6 of the 2002 Act are satisfied, the duty to make a confiscation order against an offender following conviction for an offence in respect of which the offender has been absolutely or conditionally discharged.
+Lord Clarke gives the lead judgment with which Lord Dyson and Lord Reed agree.
+Lord Phillips and Lord Mance give short concurring judgments.
+Where the criteria in section 6 of the 2002 Act are satisfied the Crown Court is not only empowered to make a confiscation order but, unless it believes the victim of the conduct has started or intends to start civil proceedings against the offender for loss, injury or damage arising from that conduct, is under a duty to make such an order against the offender even where the offender has been absolutely or conditionally discharged following conviction for that offence [58].
+The criteria in section 6 of the 2002 Act are satisfied in this case; (a) Mr Varma has been convicted of offences in proceedings before the Crown Court; (b) the prosecutor has requested that the court proceed under section 6 of the 2002 Act; (c) the Crown Court held Mr Varma benefited to the tune of 7,257.86; and, (d) the Court has decided upon the recoverable amount which it valued at 1,500.
+Consequently, the Court was under a duty to make a confiscation order to the extent of that amount; even where an offender is absolutely or conditionally discharged.
+There is nothing in the Act which gives the Court the power to decline to exercise its duty to make a confiscation order where the criteria in section 6 of the 2002 Act are satisfied.
+The Court found that the purpose of section 13(4) of the 2002 Act was neither to prohibit nor to limit the scope of a confiscation order [17].
+The reference in section 13(4) of the 2002 Act to deciding the appropriate sentence for the defendant referred to the sentencing process during which the court considers how the defendant should be dealt with.
+It is unnecessary to decide whether an absolute or conditional discharge constitutes a sentence for these purposes; it is sufficient that an absolute or conditional discharge is an order made as a result of deciding the appropriate sentence within the meaning of section 13(4) of the 2002 Act [17].
+Sections 14 and 15 of the 2002 Act contemplate circumstances in which confiscation proceedings may be postponed until after sentence is imposed.
+The Court holds that such a postponement of confiscation proceedings in no way nullifies the courts duty to return to those proceedings after deciding upon the appropriate sentence [20].
+The Court acknowledges that there is no express reference to confiscation orders amongst the measures the courts are not prevented from imposing under section 12(7) of the 2000 Act where an offender is absolutely or conditionally discharged.
+Nonetheless, the Court holds that the lack of any express reference to a confiscation order in section 12(7) in no way nullifies the duty upon the court to make such an order where the criteria in section 6 of the 2002 Act are satisfied [29 31].
+Lord Phillips gives a short concurring judgment in which he questions whether it is legitimate for the Revenue and Customs Prosecution Office (Customs), as the prosecuting authority in this case, to seek a confiscation order rather than seeking to exact the duty payable on the goods [59 60].
+Lord Phillips questions whether, in confiscation proceedings, it is legitimate to treat a defendant as having evaded duty where the only reason he has done so is that Customs have chosen not to exact it.
+Lord Mance gives a short concurring judgment in which he contends that Lord Phillipss suggestion would render it impossible to treat any smuggler as having evaded duty payable on goods, unless and until it is clear that Customs could not pursue and recover the duty.
+Lord Mance expresses some doubt as to whether that position accurately reflects the ingredients of the criminal offence created by section 170(2) of the Customs and Excise Management Act 1979 [61 63].
diff --git a/UK-Abs/train-data/summary/uksc-2010-0158.txt b/UK-Abs/train-data/summary/uksc-2010-0158.txt
new file mode 100644
index 0000000000000000000000000000000000000000..6714fa16f8e2c7b559f6e5e75bc2e4e94f7d920e
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2010-0158.txt
@@ -0,0 +1,33 @@
+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].
diff --git a/UK-Abs/train-data/summary/uksc-2010-0165.txt b/UK-Abs/train-data/summary/uksc-2010-0165.txt
new file mode 100644
index 0000000000000000000000000000000000000000..ad5eb29c887ac739a61e7f12d0841bf19ee9344b
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2010-0165.txt
@@ -0,0 +1,42 @@
+The facts of this case were extraordinary and tragic.
+On 2 October 2007, a 26 year old Polish care worker, Magda Pniewska, was walking home from a nursing home through a car park in New Cross, South London.
+She was on the telephone to her sister when she was shot in the head and killed.
+The shot was fired in an exchange of fire in the car park between two gunmen, B and Mr Gnango, neither of whom had been aiming at Magda.
+They had been shooting at each other.
+Scientific evidence showed that the single bullet to Magdas head had come from Bs and not Mr Gnangos gun.
+B was clearly guilty of murder under the doctrine of transferred malice.
+B however was never caught.
+Mr Gnango was charged with and convicted of murder following trial aged 17.
+On his appeal, the Court of Appeal overturned his conviction.
+The Court held that joint enterprise liability for murder, the basis on which the Court considered his conviction to rest, could not arise on the facts.
+In considering the appeal by the Crown, the Supreme Court was asked to address the following question: If D1 and D2 voluntarily engage in fighting each other, each intending to kill or cause grievous bodily harm to the other and each foreseeing that the other has the reciprocal intention, and if D1 mistakenly kills V in the course of the fight, in what circumstances, if any, is D2 guilty of the offence of murdering V?
+The Supreme Court allows the appeal by a 6 1 majority (Lord Kerr dissenting) and restores Mr Gnangos conviction for murder.
+Lord Phillips and Lord Judge together give the leading judgment of the Court, with which Lord Wilson agrees.
+The trial judge had directed the jury that, in order to convict, they had to be satisfied that there was a plan or an agreement to have a shoot out, whether made beforehand or on the spur of the moment when Mr Gnango and B saw and fired at each other in the car park [23, 57].
+This was an unequivocal direction that the jury could convict only if they were satisfied that Mr Gnango and B had formed a mutual plan or agreement to have a gunfight, i.e. to shoot at each other and be shot at, in which each would attempt to kill or seriously injure the other.
+The jurys verdict indicates that they were so satisfied.
+Accordingly, this is a proper basis for finding that Mr Gnango aided and abetted the murder of the deceased by aiding and abetting B to shoot at him (i.e. Mr Gnango) [55 60].
+The trial judges direction had properly been given on application of the principle of transferred malice: where a defendant intends to kill or cause serious injury to one victim, V1, but accidentally kills another, V2, he will be guilty of the murder of V2 [16, 60].
+The application of this principle in the circumstances accords with the demands of justice: Mr Gnango and B had chosen to indulge in a gunfight in a public place, each intending to kill or cause serious injury to the other, in circumstances
+where there was a foreseeable risk that this result would be suffered by an innocent bystander.
+It was a matter of fortuity which of the two fired what proved to be the fatal shot [61].
+There is no applicable statutory or common law bar that precludes conviction of Mr Gnango on the basis that he aided and abetted Bs attempt to kill him (i.e. Mr Gnango) or cause him serious injury [51 52].
+Further, the Court can see no reason why it should extend the common law to protect from conviction any defendant who is, or is intended to be, harmed by the crime that he commits or attempts to commit [53].
+Finally, whether Mr Gnango is correctly described as a principal or an accessory to the murder of the deceased is irrelevant to his guilt [62].
+This is not such a case where it is important to distinguish between the principal and the accessory: the offence is the same offence and the defendant is guilty of it [63].
+Lord Brown gives a concurring judgment.
+He holds that the all important consideration here is that both Mr Gnango and B were intentionally engaged in a potentially lethal unlawful gunfight.
+The general public would be astonished and appalled if in those circumstances the law attached liability for the death only to the gunman who actually fired the fatal shot (which it would not always be possible to determine) [68].
+Lord Brown characterises Mr Gnangos liability for murder as that not of an accessory but a principal: a direct participant engaged by agreement in unlawful violence specifically designed to cause and in fact causing death [71].
+Lord Clarke gives a concurring judgment.
+He agrees with Lord Brown that Mr Gnango is guilty of murder not as an accessory but as a principal to an agreement to engage in unlawful violence specifically designed to cause death or serious injury, where death occurs as a result [81].
+Lord Dyson gives a concurring judgment.
+He holds that the jury must have been satisfied that there was an agreement between Mr Gnango and B to shoot at each other and be shot at [103], and that Mr Gnango aided and abetted the murder of the deceased by encouraging B to shoot at him in the course of the planned shoot out [104].
+Lord Kerr gives the sole dissenting judgment of the Court.
+He holds that the jury was not invited at any time during the trial judges summing up to address the question of whether the shared common purpose between Mr Gnango and B included the important element of the avowed aiding and abetting: the agreement to be shot at [115].
+The exchange of fire between the gunmen was at least as likely to be the result of a sudden, simultaneously reached, coincident intention by them to fire at each other as it was to be the result of an agreement to shoot and be shot at [121].
+If the jury did not conclude that there was an agreement to shoot and be shot at, there is no sound basis of accessory liability on which to uphold their verdict [126].
+In any event, an agreement to shoot and be shot at does not necessarily amount to an intention to assist or encourage the other to shoot.
+The jury would have needed to receive specific directions which they did not about this vital component of aiding and abetting [123].
+Further, Lord Kerr considers that there is no sound basis for holding that Mr Gnango is liable for murder as a principal, since he had not by his own act caused or contributed to the commission of the offence with the necessary mens rea [127, 130].
+Accordingly, Lord Kerr would dismiss the appeal.
diff --git a/UK-Abs/train-data/summary/uksc-2010-0194.txt b/UK-Abs/train-data/summary/uksc-2010-0194.txt
new file mode 100644
index 0000000000000000000000000000000000000000..8feff57c5e74cbe05decb444a692e9b17524159d
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2010-0194.txt
@@ -0,0 +1,36 @@
+This appeal arises from the insolvency and administration of the Lehman Brothers group of companies.
+Lehman Brothers International (Europe) (LBIE) was the principal European trading company in the group and is incorporated in England as an unlimited company with its head office in London.
+LBIE is authorised and regulated by the Financial Services Authority (FSA).
+Its ultimate holding company is Lehman Brothers Holdings Inc (LBHI), incorporated in Delaware and based in New York.
+LBHI is now in Chapter 11 bankruptcy.
+LBIE was put into administration by order of the High Court made before the opening of business (at 07.56am) on Monday 15 September 2008: [24].
+Many difficulties have arisen in the administration and the administrators have made several applications to the Companies Court for directions.
+The application which gives rise to this appeal relates to the provisions governing client money, namely chapter 7 (Client money: MiFID business) of the Clients Assets Sourcebook issued by the FSA (CASS 7), made under the Financial Services and Markets Act 2000 (FSMA): [25] [26].
+CASS 7 provides for a normal approach and an alternative approach to discharging a firms client money segregation requirements.
+LBIE adopted the alternative approach. 7.4.16G of CASS 7, among other things, provides that Under the alternative approach, client money is received into and paid out of a firms own bank accounts A firm that adopts the alternative approach will segregate client money into a client bank account on a daily basis, after having performed a reconciliation of records and accounts of the entitlement of each client for whom the firm holds client money with the records and accounts of the entitlement of each client for whom the firm holds in client bank account and client transactions accounts to determine what the client money requirement was at the close of the previous business day.
+CASS 7 (7.7.2R) further provides that A firm receives and holds client money as trustee (or in Scotland as agent) Where the firm fails, this is known as a primary pooling event (PPE). 7.9.6R provides that If a primary pooling event occurs: (1) client money held in each client money account of the firm is treated as pooled; and (2) the firm must distribute that client money in accordance with CASS 7.7.2R, so that each client receives a sum which is rateable to the client money entitlement calculated in accordance with CASS 7.9.7R. A secondary pooling event occurs on the failure of a third party to which client money held by the firm has been transferred (7.9.14R). 7.9.13R provides that if both a primary pooling event and a secondary pooling event occur, the provisions relating to a primary pooling event are to apply: [44].
+In an ideal world, the flawless operation of the scheme created by the CASS 7 rules would ensure that, upon a firms insolvency, the clients would receive back their money in full, free from the claims of the firms creditors.
+In the imperfect and highly complex real word occupied by LBIE and its numerous clients, there has been a falling short in the achievement of these objectives on a truly spectacular scale.
+This is a result of two prime causes: first, on the basis of the assumed facts, LBIE failed to identify as client money, and therefore also failed to segregate, vast sums received from or on behalf of a significant number of its clients; second is the failure of another LBIE affiliate, Lehman Brothers Bankhaus AG (Bankhaus) with which LBIE had deposited at least US$1 billion of segregated client
+money: [27].
+Before the administration order, the last internal reconciliation of clients funds took place on the morning of Friday 12 September 2008.
+This appeal has proceeded on assumed facts and raises three issues concerning the true construction of CASS 7: (i) when does the statutory trust created by 7.7.2R arise; (ii) do the primary pooling arrangements apply to client money held in house accounts; and (iii) is participation in the notional client money pool (CMP) dependant on actual segregation of client money? [128]
+The Supreme Court dismisses the appeal by a majority (Lords Hope and Walker dissenting as to the second and third issues): the statutory trust under CASS7 arises on receipt of client money; the primary pooling arrangements apply to client money in house accounts; and, participation in the CMP is not dependant on the segregation of client money.
+As to when the statutory trust arises, the two competing answers are time of receipt and time of segregation of the funds.
+The Court unanimously holds that the trust arises at time of receipt.
+Where money is received from a client or from a third party on behalf of a client it would be unnatural, and contrary to the primary purpose of client protection, for the money to cease to be the clients property on receipt, and for it (or its substitute) to become his property again on segregation.
+It would also be contrary to the natural meaning of the comprehensive language of CASS 7.7.2R. Segregation without a trust would not achieve MiFIDs objective whereas under the alternative approach an immediate trust of identifiable client money does provide protection: [62] [63], [182] [183].
+Lord Hope further supports this conclusion on the basis that the same result would be obtained using the law of agency, as it is in Scots law: [7] [14].
+As to whether participation in the notional CMP is dependant on actual segregation of the clients money, the answer is to be found in the proper interpretation of CASS 7, in particular 7.9.6R, 7.9.7R and 7.7.2R: [139].
+It does not depend on a consideration of any general principles of trust law: [145].
+The general scheme of CASS 7 is that all client money is subject to a trust that arises upon receipt of the money.
+The client money rules are therefore intended to protect all the clients money received prior to a PPE.
+The distribution rules are intended to protect all the clients money in the event of a PPE, all client money is subject to a statutory trust and where there is a choice of possible interpretations, the court should adopt the one which affords a high degree of protection for all clients: [147].
+The language of the relevant provisions of CASS 7 tends to support the claims basis for participation in the CMP (i.e. that no segregation is required).
+As the linguistic points are not conclusive, it is necessary to stand back from the detail and ask which interpretation better promotes the purpose of CASS 7.
+This clearly supports the claims basis: [159].
+As to whether the primary pooling arrangements apply to client money held in house accounts, it is necessary to decide whether 7.9.6(1)R requires all identifiable client money to be treated as pooled, or only that client money which is held in the firms segregated client accounts.
+Since an examination of the text shows that there are two possible interpretations of the relevant CASS 7 rule, the correct interpretation is the one which best promotes the purpose of CASS 7 as a whole, namely to provide a high level of protection for client money.
+To exclude identifiable client money in house accounts from the distribution regime runs counter to this policy.
+The alternative would provide different levels of protection based on the happenstance of whether the firm has segregated money, which is arbitrary: [164] [165].
+The primary pooling arrangements apply to client money in house accounts: [167].
diff --git a/UK-Abs/train-data/summary/uksc-2010-0239.txt b/UK-Abs/train-data/summary/uksc-2010-0239.txt
new file mode 100644
index 0000000000000000000000000000000000000000..8193cb78602db50eca60aa731a884b45b81cd721
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2010-0239.txt
@@ -0,0 +1,43 @@
+Mr and Mrs Hickin became the joint tenants of a three bedroom terraced house in Chelmsley Wood, Solihull in 1967 [2].
+The Appellant, Elaine Hickin, is their daughter who has lived in the house since the beginning of the tenancy.
+The Respondent, Solihull Metropolitan Borough Council, became the freehold owner and landlord in 1980 [2].
+On 3 October 1980, the tenancy became a secure tenancy pursuant to Part II of the Housing Act 1980 [2].
+The Housing Act 1980 was later consolidated into the Housing Act 1985.
+Mr and Mrs Hickin both lived in the house until some time after 1980 when Mr Hickin left.
+The tenancy remained a joint tenancy in the names of Mr and Mrs Hickin [2].
+Mrs Hickin continued to live there with the Appellant until her death on 8 August 2007 [2].
+Shortly after Mrs Hickins death, the Respondent served noticed on Mr Hickin to quit the property as it considered that he had become the sole tenant and since he no longer resided there the tenancy was no longer secure.
+It also commenced proceedings against the Appellant for possession of the house [3].
+The Appellant resisted the possession proceedings on the basis that on her mothers death the secure tenancy had vested in her, rather than her father, as a result of section 89 of Housing Act 1985 [3].
+At the trial, on agreed facts, Deputy District Judge Hammersley ordered possession.
+HHJ Oliver Jones QC, sitting in the High Court, allowed the appeal and declared that the tenancy vested in the Appellant.
+The Court of Appeal allowed the Respondent councils appeal and restored the order of the Deputy District Judge [3].
+The Appellant appealed to the Supreme Court.
+The issue in the appeal is whether the common law rights of Mr Hickin as joint tenant of the secure tenancy had been displaced by the Housing Act 1985 statutory scheme in favour of the Appellant upon the death of Mrs Hickin [3].
+The Supreme Court dismisses the appeal by a 3 2 majority, Lord Mance and Lord Clarke dissenting.
+Lord Sumption gives the leading judgment (with whom Lord Walker agrees) restoring the order of the Deputy District Judge.
+Lord Hope, Deputy President, gives a short concurring judgment.
+A secure tenancy under the Housing Act 1985 is not just a personal right of occupation, but is also an estate in land [6].
+At common law, upon the death of a joint tenant, the tenancy is vested in the surviving joint tenant or in all of the survivors if there is more than one [1].
+There is no transmission of the tenancy upon death, rather the interest of the deceased person is extinguished [8].
+Sections 87 to 91 of the Housing Act 1985 operate to determine the transmission of a secure tenancy [6].
+Subject to limited exceptions, a secure tenancy cannot be passed on to a third person with the benefit of the statutory security, either during the lifetime of the tenant or in the course of the administration of their estate after their death, except if that person is qualified to succeed under section 87 [6].
+A person is qualified to succeed if he or she is the deceased tenants spouse or civil partner or any other member of the deceaseds family, within a broad definition contained in section 113 [6].
+Section 89 of the Housing Act 1985 vests a tenancy in a qualified person if (i) a secure tenant has died; (ii) the tenancy was a periodic tenancy; (iii) the qualified person occupies the house as her only or principal home for the period of twelve months proceeding the death and (iv) the tenant was not herself a successor within the meaning of Section 88 [5].
+The Housing Act 1985 does not, however, wholly displace the common law.
+The Act necessarily operates by reference to basic principles of the law of property and does not modify the common law governing the transmission of tenancies; rather it merely affects the statutory security of the tenure available when the tenancy has been transferred [7].
+At common law and by virtue of section 8 of the Housing Act 1985, Mr and Mrs Hickin were joint secure tenants for as long as one of them occupied the property as an only or principal home [8].
+Upon Mrs Hickins death, Mr Hickin remained the sole tenant under the agreement with the Respondent, to which he remained party, but since he was not occupying the property the tenancy ceased to be secure [8].
+Mr Hickin could have made the tenancy secure again by moving back to the property at any time before the local authority served a notice to quit [8].
+The provisions of the Housing Act 1985 do not affect this result.
+For the purposes of section 89(1), a secure tenant dies only when a sole tenant dies; if the tenancy is a joint tenancy a secure tenant has not died if there remains at least one living joint tenant [11].
+The provisions of the Housing Act 1985 concern the transmission of the tenancy to a person other than the previous tenant on account of the latters death.
+Where there is a surviving joint tenant, the whole statutory basis for disposing of the succession to the tenancy is absent [11].
+It is only necessary to provide for the transmission of a tenancy on death if there is a vacancy but where a joint tenant remains living there is none [11, 25].
+The surviving tenant has the same contractual rights as he always did [11].
+If Parliament had intended the section to operate to exclude the common law rights of a joint tenant it would have done so expressly [12].
+Lord Hope notes that such express provision was made in the Housing (Scotland) Act 2001 [21 23] and whilst that Act could not be an aid to the construction of the relevant provisions of the Housing Act 1985, it indicates the kind of statutory language that can be used if the policy is to override the common law right of survivorship [23].
+Lord Mance would have allowed the appeal on the grounds that where the surviving joint tenant is not in occupation, the secure tenancy cannot continue in the surviving tenant who cannot be a secure tenant [47].
+In this situation, nothing in the Housing Act 1985 recognises or permits any right of survivorship to oust the mandatory statutory provisions contained in section 89 [47].
+The tenancy vested in the Appellant upon Mrs Hickins death [47].
+Lord Clarke would also have allowed the appeal on the ground that transmission under the Housing Act 1985 to a qualified person occurs when any individual joint tenant dies, and in this case the person qualified to succeed Mrs Hickin was the Appellant [60].
diff --git a/UK-Abs/train-data/summary/uksc-2011-0003.txt b/UK-Abs/train-data/summary/uksc-2011-0003.txt
new file mode 100644
index 0000000000000000000000000000000000000000..d13f7e8868aeb5672b5a43ae201694fff11c4f54
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2011-0003.txt
@@ -0,0 +1,42 @@
+These appeals concern a little used provision in article 1F(c) of the Geneva Convention on the Status of Refugees.
+This excludes from protection any person with respect to whom there are serious reasons for considering thathe has been guilty of acts contrary to the purposes and principles of the United Nations.
+Both appellants have been refused the grant of refugee status by the respondent on this ground.
+Al Sirri is a citizen of Egypt who arrived in the UK in 1994.
+The facts relied on for the refusal of his asylum claim included his possession of and contribution to books connected with Al Qaeda and other proscribed organisations and his alleged involvement in the murder of General Masoud in Afghanistan in 2001.
+The issue raised by his case is whether all activities defined as terrorism by United Kingdom domestic law are for that reason acts falling within article 1F(c), or whether such activities must constitute a threat to international peace and security.
+DD is a citizen of Afghanistan who came to the UK in 2007.
+His claim for asylum was based on his fear of persecution as the brother of the leader of forces allied with the Taliban, who had fought against both the Afghan government and the UN mandated International Security Assistance Force (ISAF).
+In his case the question is whether armed insurrection against not only the incumbent government but also a UN mandated force supporting that government falls within article 1F(c).
+In both appeals the issue also arises as to what is meant by serious reasons for considering a person to be guilty of the act in question.
+The appellants appealed against the respondents refusal to grant asylum.
+On 18 March 2009 the Court of Appeal set aside the determination of the Asylum and Immigration Tribunal (AIT) in Al Sirris case and remitted it to be determined afresh omitting certain matters on which the respondent had sought to rely.
+DD was initially successful in his appeals but the Court of Appeal remitted his case for reconsideration by the Upper Tribunal because the AIT had failed to consider DDs individual responsibility and whether he fell within article 1F(c).
+Both appellants have nonetheless pursued an appeal to the Supreme Court in order to challenge the approach of the Court of Appeal to the interpretation of article 1F(c) in a number of respects.
+The Supreme Court unanimously dismisses both appeals.
+Both cases will now be remitted to the relevant tribunal for reconsideration in accordance with the orders of the Court of Appeal.
+In the case of Al Sirri the guidance given to that tribunal should be in line with the judgment of the Supreme Court.
+The judgment is given by Lady Hale and Lord Dyson, with whom the other justices agree.
+The general approach to article 1F(c) Article 1F(c) should be interpreted restrictively and applied with caution.
+There should be a high threshold defined by the gravity of the act in question, the manner in which the act is organised, its international objectives and its implications for international peace and security.
+There should be serious reasons for considering that the person concerned bore individual responsibility for acts of that character [16].
+International dimension It is clear that the phrase acts contrary to the purposes and principles of the United Nations must have an autonomous meaning and member states are not free to adopt their own definitions.
+There is as yet no internationally agreed definition of terrorism.
+It was appropriately cautious therefore to adopt paragraph 17 of the United Nations High Commissioner for Refugees (UNHCR) Guidelines which provided that article 1F(c) was only triggered in extreme circumstances by activity which attacks the very basis of the international communitys co existence.
+Such activity must have an international dimension.
+Crimes capable of affecting international peace, security and peaceful relations between States, as well as serious and sustained violations of human rights would fall under this category [36 38].
+It could be enough if one person plotted in one country to destabilise another.
+The test was whether the resulting acts had the requisite serious effect upon international peace [40].
+Armed insurrection against UN mandated forces DD had been engaged in fighting against ISAF in Afghanistan.
+ISAF was an armed force under the lead command of individual nations authorised by the UN from 2001, and was distinct from the United Nations Assistance Mission in Afghanistan (UNAMA), which was established in 2002 as a peacekeeping force.
+Both ISAF and UNAMA had the same objective to maintain peace and security in Afghanistan.
+DD argued that simple participation in an attack against UN mandated forces did not engage article 1F(c).
+The Supreme Court agreed that the protection for ISAF against attack was not the same as for peacekeeping forces.
+This was not however material to the issue under article 1F(c) which was to be judged under the same principle in paragraph 17 of the UNHCR Guidelines quoted above [66].
+The fundamental aims and objectives of ISAF accorded with the purposes stated in the UN Charter and DD was seeking to frustrate that purpose [68].
+Standard of proof This issue arose in acute form in Al Sirri.
+Al Sirri had been indicted at the Old Bailey in relation to the murder of General Masoud but the charge was dismissed on the ground that the evidence was as consistent with his innocence as it was with his guilt.
+Article 1F(c) required that there be serious reasons for considering that the asylum seeker had been guilty of the acts.
+This had an autonomous meaning, and was not the same as the criminal standard of proof beyond reasonable doubt, or any domestic standard.
+Serious reasons was stronger than reasonable grounds, strong or clear and credible evidence had to be present and the considered judgment of the decision maker was required.
+The reality was that there were unlikely to be sufficiently serious reasons for considering an applicant to be guilty unless the decision maker could be satisfied that it was more likely than not that he was.
+But the task of the decision maker was to apply the words of article 1F(c) in the particular case [75].
diff --git a/UK-Abs/train-data/summary/uksc-2011-0012.txt b/UK-Abs/train-data/summary/uksc-2011-0012.txt
new file mode 100644
index 0000000000000000000000000000000000000000..632fe4089740c4c0973f0db693d58fdf2ca2b2d8
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2011-0012.txt
@@ -0,0 +1,42 @@
+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].
diff --git a/UK-Abs/train-data/summary/uksc-2011-0014.txt b/UK-Abs/train-data/summary/uksc-2011-0014.txt
new file mode 100644
index 0000000000000000000000000000000000000000..78d0fa27e236b3bc094e4d8691044bb05f6baae8
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2011-0014.txt
@@ -0,0 +1,35 @@
+In January 1997, Mr Peacock was convicted of five offences of conspiracy to supply controlled drugs and sentenced to 12 years imprisonment, reduced on appeal to ten years.
+Mr Peacock was found to have benefited from his drug trafficking to the extent of 273,717.50.
+However, at the time of sentence, he owned realisable assets worth only 823, so, accordingly, a confiscation order was made against him just for this lesser sum.
+Following his release from prison in November 2000, Mr Peacock went into the property business and, entirely legitimately, acquired very substantial assets.
+The prosecution sought recovery of the full 273,717.50 and applied to the High Court.
+The High Court granted the appropriate certificate increasing the realisable amount under the original confiscation order; and, on application by the prosecution, the Crown Court substituted for the 823 originally recoverable the sum of 273,717.50.
+Mr Peacock appealed the lawfulness of the certificate issued by the High Court.
+The Court of Appeal dismissed his appeal.
+Had Mr Peacock committed the drug trafficking offences of which he was convicted after 24 March 2003, the Proceeds of Crime Act 2002 (POCA) would have applied and, under section 22(3) of that Act, Mr Peacock would clearly have been liable to a further court order increasing to the full extent of his criminal gain the amount recoverable under the confiscation order by reference to his after acquired assets.
+However, Mr Peacock committed the relevant drug trafficking offences in 1995, and the question therefore arose whether the same position had obtained under section 16(2) of the Drug Trafficking Act 1994 (the 1994 Act).
+The questions for the Supreme Court were: (1) Did section 16 of the 1994 Act apply after POCA came into force on 24 March 2003? (2) If section 16 was in force after 24 March 2003, was the High Court entitled to have regard to after acquired assets under section 16(2) when issuing a certificate to increase the amount payable under the confiscation order?
+The Supreme Court dismisses the appeal by a majority (Lord Hope and Lady Hale dissenting on the second issue).
+Lord Brown gives the leading judgment of the Court with which Lord Walker and Lord Wilson agree.
+The first issue before the Court is dealt with swiftly and by unanimous agreement.
+The statutory transitional provisions implemented alongside POCA in 2003 disapplied the entire POCA confiscation order regime in respect of offences committed prior to 24 March 2003.
+In respect of such offences, the whole confiscation order scheme provided for by the 1994 Act continues in force.
+Accordingly, section 16 of the 1994 applies to Mr Peacocks circumstances [16].
+The statutory purpose of the 1994 Act could hardly have been made clearer: to strip those convicted of serious crimes of the proceeds of their wrongdoing [33] [34].
+Section 16(2) of the 1994 Act enables
+the High Court, on application, to issue a certificate certifying that the amount that might be realised in the case of a person against whom a confiscation order has been made is greater than the amount taken into account in making the confiscation order (whether it was greater than was thought when the order was made or has subsequently increased).
+Nothing in the definition sections of the 1994 Act requires section 16(2) to be construed as if it refers to the amount that might have been realised at the time the confiscation order was made.
+On the contrary, section 16(2) is plainly directed to the amount that might be realised now and by reference to realisable property now held by the defendant [21].
+It is common ground between the parties that, in relation to pre acquired assets, the inquiry is into their value at the time of the application rather than their value at the time when the confiscation order was made [44].
+That the provision also applies to after acquired assets property accruing to a person (whether as earnings or by gift, inheritance or some other windfall) without a corresponding diminution in that persons existing assets [35] is clear from the words in section 16(2) in parentheses which encompass all ways in which the amount might have grown [22].
+Parliament would have made it clearer had its intention been to exclude after acquired assets from the scope of section 16(2) [49].
+Section 17 of the 1994 Act, enabling the High Court on application to grant a certificate that the defendants realisable property is inadequate to meet the amount remaining to be recovered under the confiscation order, is symmetrical to section 16 [23], [41].
+They are opposite sides of the same coin [46].
+It is logical that, by the same token that a defendant cannot require his after acquired assets to be ignored in the determination of his present ability to pay, nor should they be ignored in deciding whether he can pay an additional amount up to the point when he will have disgorged an amount equivalent to all the benefit which has accrued to him from drug trafficking [23].
+By enacting section 16, Parliament decided to leave it open to the courts as a matter of discretion under section 16(4) to deprive a defendant of his criminal gains on an ongoing basis irrespective of precisely how and when he came by any increased wealth [29] [30], [47].
+Accordingly, the section 16(2) certificate here was lawfully issued and the appeal is dismissed [31].
+Lord Hope (with whom Lady Hale agrees) dissents from the outcome reached by the majority of the Court.
+The effect of reading section 16(2) so as to include legitimate after acquired assets could be to penalise a defendant for the efforts of his own enterprise and hard work after he is released from custody.
+To deprive Mr Peacock of the increase in the value of his assets legitimately accrued following his release from custody ought not, according to well established principles, to be assumed to have been what Parliament intended unless it provided for this in clear terms [59].
+The general principle of construction, of universal application, is that a statute should not be held to take away property rights without compensation unless the intention to do so is expressed in terms which are clear and unambiguous [60].
+Although there are no words that exclude after acquired property from the scope of section 16, the confiscatory nature of the exercise under that provision requires us to be satisfied that the inclusion of after acquired property within its scope was what Parliament really intended and to give the benefit of the doubt to the defendant if we are not [64], [71].
diff --git a/UK-Abs/train-data/summary/uksc-2011-0031.txt b/UK-Abs/train-data/summary/uksc-2011-0031.txt
new file mode 100644
index 0000000000000000000000000000000000000000..632fe4089740c4c0973f0db693d58fdf2ca2b2d8
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2011-0031.txt
@@ -0,0 +1,42 @@
+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].
diff --git a/UK-Abs/train-data/summary/uksc-2011-0101.txt b/UK-Abs/train-data/summary/uksc-2011-0101.txt
new file mode 100644
index 0000000000000000000000000000000000000000..9ed8d9c205d85f07868c03d19582d92bb9c9fc30
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2011-0101.txt
@@ -0,0 +1,71 @@
+In Cadder v HM Advocate [2010] UKSC 43, the Supreme Court held, having regard to the decision of the European Court of Human Rights in Salduz v Turkey (2008) 49 EHRR 421, that the Crowns reliance on admissions made by an accused who had no access to a lawyer while he was being questioned as a detainee at a police station was a violation of his rights under Article 6(3)(c), read with Article 6(1) of the European Convention on Human Rights.
+The issues in these cases are whether the right of access to a lawyer prior to police questioning, which was established by Salduz, applies only to questioning which takes place when the person has been taken into police custody; and, if the rule applies at some earlier stage, from what moment does it apply.
+The accused in the first case, John Paul Ambrose, was prosecuted on a charge of contravening section 5(1)(b) of the Road Traffic Act 1988 as being in charge of a motor vehicle while over the alcohol limit.
+He was questioned by two police officers by the roadside, who cautioned him but did not give him any specification about the offence he was suspected of having committed.
+In response to their questions, he confirmed that he was in possession of the car keys, and that he might be intending to drive the car.
+Breath tests indicated that he was substantially over the prescribed limit.
+In his trial the Crown led evidence of the questions and answers at the roadside.
+In M, the accused was charged with assault to severe injury, permanent disfigurement and permanent impairment.
+A few days after the incident, the police visited him at his home, cautioned him, and asked him a number of questions, in response to which he confirmed his attendance at the locus on the night in question and his involvement in the fight.
+He was detained the following day, and questioned further while he was in custody.
+At trial, he objected to the Crowns reliance upon the admissions he had made in his home, on the basis that he had not had access to legal advice prior to interview.
+In G, the accused was indicted with offences including the possession of controlled drugs under the Misuse of Drugs Act 1971 and possession of prohibited firearms and ammunition under the Firearms Act 1968.
+The police had obtained a warrant to search the accuseds flat.
+They forced entry and found him there.
+He struggled, and was handcuffed and cautioned.
+He admitted to having drugs in his pocket, and responded to a number of questions about items found in the flat.
+He was subsequently arrested and taken to a police station where he answered further questions.
+He objected to the Crowns reliance at trial on the statements he made during the course of the search of the flat.
+In each of the three cases, the Appeal Court of the High Court of Justiciary referred to this Court the question whether the act of the Lord Advocate in leading and relying on the evidence in question would be incompatible with the appellants rights under Article 6(1) and (3)(c) of the European Convention on Human Rights.
+The Supreme Court, by a majority of 4 to 1, finds that, in the cases of Ambrose and M, the act of the Lord Advocate in leading and relying at the trial on the evidence that was obtained from them in response to police questioning without having had access to legal advice was not incompatible with the Article 6(1) and (3)(c) right; and in the case of G that it was incompatible.
+In Ambrose and M, the question whether, taking all the circumstances into account, it would be fair to admit this evidence, is left open for decision by the Appeal Court and Sheriff Court respectively.
+Lord Hope gives the leading judgment.
+Lord Kerr gives a separate dissenting judgment finding in all three cases that the evidence would be inadmissible.
+In each of these three cases, the circumstances differ from those before the Supreme Court in Cadder and before the Grand Chamber in Salduz, in that the evidence in question was obtained through police questioning before the individuals were detained at a police station.
+The Supreme Court notes, firstly, that the jurisdiction of this court is limited to a consideration of the devolution issue which is raised by each of these references, and does not extend to ruling on how the circumstances referred to in each case would fall to be dealt with under domestic law.
+Secondly, it notes that a decision by this court that there is a rule that a person who is suspected of an offence but is not yet in custody has a right of access to a lawyer before being questioned by the police would have far reaching consequences for the investigation of crime by the authorities.
+Therefore, if Strasbourg has not yet spoken clearly on this issue, the court would be wise to wait until it has done so [14 15].
+The duty of the domestic court in interpreting the Convention is to keep pace with the Strasbourg case law as it evolves over time.
+There is no obligation upon domestic courts to do more than that (R (Ullah) v Special Adjudicator [2004] UKHL 26, para 20 per Lord Bingham of Cornhill) [17].
+The courts task in this case is to identify where the Strasbourg court stands on this issue.
+It is not for this court to expand the scope of the Convention right further than the jurisprudence of the Strasbourg court justifies [20].
+In domestic law, where an individual has not yet been detained under section 14 of the Criminal Procedure (Scotland) Act 1995, the test for the admissibility of answers given to questions put by police is whether or not there was unfairness on the part of the police.
+The fact that the person did not have access to legal advice when being questioned is a circumstance to which the court may have regard in applying the test of fairness, but it carries no more weight than that.
+There is no rule in domestic law that provides that police questioning of a person without access to legal advice who is suspected of an offence but is not in police custody must always be regarded as unfair.
+The question is whether a rule to that effect is to be clearly found in the jurisprudence of the Strasbourg court [25].
+The Grand Chamber in Salduz had in mind the need to protect an accused against abusive coercion while in custody.
+The judgment appears to have been concerned only with establishing a rule that there was a right of access to a lawyer where the person being interrogated was in police custody [33].
+That assessment is supported by subsequent Strasbourg case law, in particular Zaichenko v Russia (Application no.39660/02), the only case to date in which the complaint was of lack of legal assistance during police questioning when the applicant was not in custody [46].
+If the Salduz judgment were to apply to statements made by a person in response to police questioning before being taken into custody, the court would have had to have said so expressly.
+It did not do so [35].
+The privilege against self incrimination is not an absolute right (Murray v United Kingdom (1996) 22 EHRR 29, para 47).
+It is primarily concerned with respecting the will of the person to remain silent (Saunders v United Kingdom (1996) 23 EHRR 313, para 68), and a person is free to confess if he is willing to do so.
+Police custody or its equivalent creates a need for protection of the accused against abusive coercion.
+The same is not the case for questioning at the locus or in a persons home [54].
+In principle, the line as to when access to legal advice must be provided before the person is questioned should be drawn as from the moment that he has been taken into police custody, or his freedom of action has been significantly curtailed [55].
+The correct starting point when considering whether the persons Convention rights have been breached is to identify the moment at which he is charged for the purposes of Article 6(1); that is whether his situation is substantially affected (Deweer v Belgium (1980) 2 EHRR 439, para 46; Eckle v Germany (1982) 5 EHRR 1, para 73).
+That will be the case as soon as the suspicion against him is being seriously investigated and the prosecution case compiled [62].
+The fact that a person who has become a suspect and is not in
+custody is questioned without access to legal advice will be a relevant factor in the assessment whether the accused was deprived of a fair hearing, but it will be no more than that.
+In Ambrose and M, the question is whether the act of the Lord Advocate in leading and relying on evidence obtained in response to police questioning, conducted under common law at the roadside or at the accuseds home, without the accused having had access to legal advice, was incompatible with Article 6(1) and (3)(c).
+This is answered in the negative.
+Ambrose was charged for the purposes of Article 6 when he was cautioned.
+Suspicion that he was committing an offence fell on him as soon as he told the police that the keys were in his pocket [67].
+M was charged when he was cautioned by the police officer at his home [69].
+But it would be to go further than Strasbourg has gone to hold that the appellants are entitled to a finding that this evidence is inadmissible because, as a rule, access to a lawyer should have been provided to him when he was being subjected to questioning at the roadside [68 & 70].
+The question whether, taking all the circumstances into account, it would be fair to admit this evidence, is left open for the Appeal Court and Sheriff Court respectively.
+In G, the question whether it is incompatible with his Convention rights for the Lord Advocate to lead evidence of his statements made during the course of the search is answered in the affirmative.
+He was charged for the purposes of Article 6 by the time the police began their search.
+The difference with this case was that there was a significant curtailment of Gs freedom of action.
+He was detained and had been handcuffed, and was, in effect, in police custody from that moment onwards.
+The circumstances were, therefore, sufficiently coercive for the incriminating answers that he gave to the questions that were put to him without access to legal advice to be inadmissible [71].
+The same result need not, however, follow in every case where questions are put during a police search to a person who is to be take to have been charged for the purposes of Article 6; that, again, would be going further than Strasbourg has gone [72].
+Lord Kerr would have found the evidence in question to be inadmissible in all three cases.
+It is not open to courts of this country to refrain from recognising a claim to a Convention right simply because Strasbourg has not spoken clearly on the matter [128].
+In practice, it is inevitable that many claims to Convention rights will have to be determined by the UK courts without the benefit of unequivocal jurisprudence from Strasbourg.
+It is the duty of every domestic court to resolve the question of whether a claim to a Convention right is viable or not, even where the jurisprudence of the Strasbourg court does not disclose a clear current view [129].
+As regards the right of access to a lawyer, the selection of the moment of being taken into custody as the first occasion on which legal representation becomes necessary is both arbitrary and illogical.
+The judgment in Salduz indicates that the need to have a lawyer is not to be determined on a geographical or temporal basis but according to the significance of what is taking place when the admissions in question are made [136].
+The essential question is: when the questioning is taking place, is the suspect in a position where the advice of a lawyer is essential if a fair trial is to occur.
+If he is liable to incriminate himself at that time, a lawyers presence is required [145].
+The judgment in Zaichenko is not clear, but does not indicate that formal arrest and interrogation in custody are essential prerequisites to the invocation of the right to legal assistance [158].
diff --git a/UK-Abs/train-data/summary/uksc-2011-0123.txt b/UK-Abs/train-data/summary/uksc-2011-0123.txt
new file mode 100644
index 0000000000000000000000000000000000000000..bbddb93ffb26b1dc02d8e25810b7ab4a7e3413ea
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2011-0123.txt
@@ -0,0 +1,52 @@
+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].
diff --git a/UK-Abs/train-data/summary/uksc-2011-0150.txt b/UK-Abs/train-data/summary/uksc-2011-0150.txt
new file mode 100644
index 0000000000000000000000000000000000000000..f8fc781a6570396877ba8af6194f1710078bde30
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2011-0150.txt
@@ -0,0 +1,43 @@
+The Respondents were each detained as suspects for questioning at a police station under sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995.
+Their detentions took place prior to the decision of this Court in Cadder v HM Advocate [2010] UKSC 43, and they did not have access to legal advice either before or during their police interviews.
+In the course of their interviews, they each made statements which were later relied on by the Crown at their trials.
+They were convicted and sentenced to various periods of imprisonment.
+They appealed, and their appeals were still current when the judgment in Cadder was delivered on 26 October 2010.
+The Respondents argued, on the basis of Cadder, that the leading of evidence of the statements they made during their police interviews was a breach of their rights under Articles 6(3)(c) and 6(1) of the European Convention on Human Rights, and that, in terms of section 57(2) of the Scotland Act 1998, the Lord Advocate had no power to lead that evidence.
+For Birnie, it was also submitted that the reliance by the Crown upon his admissions in these circumstances deprived him of a fair trial, to which he was entitled under Article 6(1) and at common law.
+The Crowns objections to the devolution issue were repelled by the Appeal Court, and the Crown appealed to the Supreme Court.
+On the question whether the Respondents had waived their right to legal assistance, the Lord Advocates position before the Court was that the important point in these appeals was that raised in the case of Birnie.
+Unlike the other two Respondents, Birnie made an unsolicited statement following his police interview, having declined the opportunity to have access to a lawyer prior to and while making it.
+The outstanding matters before the Court were therefore: (i) Whether the time bar referred to in section 100(3B) of the Scotland Act 1998, as amended, applies to Judes appeal; (ii) Whether Birnie waived his right of access to a lawyer when he made his unsolicited statement following his police interview; and (iii) Whether the reliance by the Crown upon the appellants admissions in these circumstances deprived him of his right to a fair trial under Article 6(1) of the Convention.
+The Supreme Court unanimously dismisses the Crowns appeal on the question whether section 100(3B) of the Scotland Act 1998 applies in this case.
+It unanimously dismisses its appeals on the issue as to waiver in regard to the police interviews of Jude and Hodgson.
+By a majority of 4 1, it allows the appeal on the question whether it was incompatible with Birnies right to a fair trial for the Crown to lead and rely on the evidence of the statement which he made following his police interview and remits that matter for determination by the High Court of Justiciary.
+Lord Hope gives the leading judgment.
+Lord Kerr gives a partly dissenting judgment.
+(1) Time Bar: Section 100(3B) of the Scotland Act 1998, as amended, provides that any proceedings brought on the ground that an act of a member of the Scottish Executive is incompatible with the Convention rights must be brought before the end of the period of one year beginning with the date on which the act complained of
+took place.
+The question is whether that section applies to proceedings brought by way of an appeal under the 1995 Act [6].
+A criminal appeal under section 57(2) of the Scotland Act falls plainly into the category of a proceeding that is by virtue of the Scotland Act.
+The fact that the procedure under which the complaint is made is provided by the 1995 Act is irrelevant as far as this point is concerned, and does not render section 100(3B) inapplicable[13].
+The opening subsection of section 100 makes the same distinction as that found in section 7(1) of the Human Rights Act 1998 between bringing proceedings on the basis of Convention rights, and relying on Convention rights in any such proceedings.
+The wording is not exactly the same in the two Acts, but the assumption is that they have the same effect.
+The time bar under section 7(5) of the Human Rights Act refers only to proceedings under section (1)(a) and not those under (1)(b) [15].
+The time bar in section 100(3B) has the same effect, so it does not apply to proceedings of the kind referred to in section 100(1)(b).
+The point is that proceedings under that section are proceedings that have been brought by someone other than the person who maintains that the act in question is incompatible with the Convention rights [16].
+An appeal against conviction or sentence is still part of the prosecution process that has been brought by the Lord Advocate [17].
+Further, the 1995 Act contains its own system of time limits for the bringing of appeals.
+It would be very odd if an appeal were subject to two different time limits under two different Acts [18]. (2) Waiver.
+Birnie was offered rights of access to a solicitor before he made his statement and was also asked whether he wished to have a solicitor present while he was making it.
+He expressly declined both offers [26].
+There is no absolute rule that the accused must have been given legal advice on the question whether or not he should exercise his right of access to a lawyer before he can be held to have waived it: see McGowan (Procurator Fiscal, Edinburgh) v B [2011] UKSC 54 [28].
+It was not suggested in the course of argument that an absolute rule requiring reasons for the accuseds decision to waive his right to legal assistance is to be found in the jurisprudence of the Strasbourg court.
+The only question for this Court is whether the absence of such an inquiry amounted in itself to a breach of a Convention right.
+It is not for the Supreme Court to say how the law and practice respecting crimes should be developed by the common law in Scotland.
+The fact that the waiver was made without legal advice and without reasons being requested may be taken into account in the assessment as to whether Birnie understood the right that was being waived.
+But Strasbourg does not require the Court to hold that it would necessarily be incompatible with Article 6 to rely on statements made to police just because it was not ascertained why the suspect did not want to speak to a lawyer.
+The Strasbourg court has been careful, in general, to leave the national authorities to devise a more Convention compliant system without itself imposing specific requirements on the State.
+The Supreme Court should be no less careful in the way that it deals with Scottish criminal law and procedure [29].
+There is room for argument as to whether Birnies statement was truly voluntary and in any event whether, taking all the circumstances into account, it was fair to admit this evidence.
+The question of overall fairness for the purposes of Article 6(1) must be examined in the light of all the facts and circumstances, and is therefore a matter for determination by the High Court of Justiciary [33].
+For Lord Kerr, it is an indispensable prerequisite that there must be some means of ascertaining the reason that the right to legal assistance has been waived [53].
+On the available evidence, it has not been established that there was an effective waiver by Birnie of his right to legal assistance [57].
diff --git a/UK-Abs/train-data/summary/uksc-2011-0199.txt b/UK-Abs/train-data/summary/uksc-2011-0199.txt
new file mode 100644
index 0000000000000000000000000000000000000000..fd6eedb388c9d2338aff966a3fc75624e35e5a35
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2011-0199.txt
@@ -0,0 +1,46 @@
+Interest bearing loan notes (the notes) to the value of 660m were issued to certain companies (the Noteholders) by a special purpose vehicle formed by the Lehman Brothers group, Eurosail UK 2007 3BL (the Issuer).
+The Issuer used the issue of the notes to fund the purchase of a portfolio of mortgage loans, to the value of 650m, secured on residential property in the United Kingdom.
+The notes were issued in 5 principal classes in order of priority for repayment.
+Those classes run from A through to E, and comprise a total of 14 sub classes.
+The A notes hold highest priority, are of the highest value, and are designated either A1, A2 or A3.
+The final redemption date of the lowest priority notes is in 2045.
+The terms governing the issue of the notes (the Conditions) provide that in the event of an Event of Default, an Enforcement Notice may be served by the trustee of the Noteholders rights, namely BNY Corporate Trustee Services Ltd (the Trustee).
+If the Issuer becomes unable to pay its debts under the terms of section 123 of the Insolvency Act 1986 (the 1986 Act), that would constitute an Event of Default.
+That section provides that a company is deemed unable to pay its debts, first, if it is unable to pay those debts as they fall due or, secondly, if the value of the companys assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities.
+The former is often referred to as the cash flow test, and the latter as the balance sheet test.
+The effect of section 123 was incorporated into the Conditions.
+Further, on the date on which the notes were issued, on behalf of the Noteholders the Trustee entered into an agreement (PECO) with another company (OptionCo).
+OptionCo was granted the option to purchase all of the notes from the Noteholders, plus the accrued interest, for a nominal consideration in the event that the Trustee determines that the Issuer is unable to pay its debts under section 123.
+The intended effect of this was that, in the event that the assets of the Issuer were exhausted, the remaining claims of the Noteholders against the Issuer would be assigned to OptionCo, and the Issuer would not be regarded as unable to pay its debts.
+The Issuer had entered into swap agreements with two of Lehman Brothers companies, with the consequence that when the latter became insolvent the Issuer suffered a significant deficiency in its net asset position, though it continued to pay its debts.
+The holders of the A1 and certain other of the notes had been repaid by this time.
+The A2 Noteholders were to have priority over A3 Noteholders in receiving repayments of principal out of sums raised by the Issuer from the redemption of mortgages in the portfolio, though those two groups would rank equally for repayment of interest.
+However, a finding that the Issuer was unable to pay its debts, and the consequent issuing of an Enforcement Notice, would alter this position significantly: all notes would become immediately due and payable and, importantly, A2 and A3 Noteholders would rank equally for repayment of principal.
+Against that background, though adopting a neutral position, the Trustee commenced these proceedings to seek a determination of whether the difficulties suffered by the Issuer constituted an Event of Default on the basis that it was unable to pay its debts within the meaning of section 123 of the 1986 Act.
+This appeal is therefore concerned with the construction of section 123.
+The Issuer and certain of the A2 Noteholders successfully argued in both the High Court and the Court of Appeal that the Issuer was not unable to pay its debts within the meaning of section 123.
+The Appellants, who are A3 Noteholders, argue to the contrary, and seek a stricter construction of section 123 than that which was applied by the lower courts.
+By way of cross appeal the Issuer renews its argument, rejected by the Court of Appeal, that in the event that the Issuer was otherwise deemed unable to pay its debts under section 123, the effect of the PECO should serve to alter that conclusion.
+The Supreme Court unanimously dismisses the appeals and the Issuers cross appeal.
+Lord Walker, with whom Lord Mance, Lord Sumption and Lord Carnwath agree, gives the lead judgment.
+Lord Hope gives a concurring judgment.
+Having regard to previous relevant legislation, to the authorities pertaining to those provisions and to section 123 of the 1986 Act itself, the enactment of section 123 should be seen as having made little significant change in the law.
+The changes in form therein emphasise that the cash flow test is concerned with debts falling due from time to time in the reasonably near future, in addition to those debts presently due.
+What is to be regarded as the reasonably near future will depend on the circumstances at hand, but especially the nature of the companys business [37].
+However, once one moves beyond the reasonably near future, any attempt to apply the cash flow test will become completely speculative.
+In that situation, a comparison of present assets with present and future liabilities, the latter having been discounted to account for contingencies and deferment of payments, becomes the only sensible test.
+That is the reason for the inclusion of the balance sheet test in section 123, though it is still very far from an exact test.
+It is for the party asserting balance sheet insolvency to establish insolvency of that nature [37].
+Whether or not the balance sheet test of insolvency is satisfied must depend on the available evidence as to the circumstances of the particular case.
+In that regard, the Issuer is not engaged in normal, on going trading activities, and therefore its present assets should be a better guide to its ability to meet its long term liabilities.
+Against that, the impact of factors relevant to its business in the period until the final redemption rate in 2045, such as currency movements, interest rates and the economy and housing market of the United Kingdom, must be considered.
+However, they are a matter of speculation rather than calculation or prediction on a scientific basis [38, 49].
+As the Issuers liabilities can, as matters stand, be deferred until 2045, and as it is currently paying its debts as they fall due, the Court should proceed with the greatest caution in deciding that it is in a state of balance sheet insolvency [42].
+Its ability to pay all its debts, present or future, may not be finally determined until much closer to 2045.
+The Conditions contain several mechanisms to ensure that liabilities in respect of principal can be deferred until that date.
+That being so, the Court cannot be satisfied that there will eventually be an inability on the part of the Issuer to pay its debts [49].
+Though it is not required to decide the point because the appeal is dismissed, PECO agreements are of importance to the securitisation market.
+So the Court gives reasons for its decision to dismiss the cross appeal [51].
+In that regard, the intended legal and commercial effects of the PECO, having regard to the wording of the documents pertaining to the transaction as a whole, point in the same direction: they do not affect the quantification of the Issuers liabilities.
+The meaning to be given to the language used by the parties on this point is not open to doubt.
+It would not be consistent with commercial good sense to depart from it [64].
diff --git a/UK-Abs/train-data/summary/uksc-2011-0201.txt b/UK-Abs/train-data/summary/uksc-2011-0201.txt
new file mode 100644
index 0000000000000000000000000000000000000000..744a05176f9c354aa495ea402cae179eacb56a0f
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2011-0201.txt
@@ -0,0 +1,43 @@
+This is a reference of a devolution issue at the request of the Lord Advocate.
+It is directed to the issue of waiver.
+The Respondent, B, whose case has not yet gone to trial, has been charged on summary complaint with housebreaking with intent to steal and having in his possession a controlled drug contrary to section 5(2) of the Misuse of Drugs Act 1971.
+Before the commencement of a police interview, he was offered legal assistance but declined the offer.
+His waiver of the right to legal assistance took place without his having received advice on the point from a solicitor In advance of the trial, Bs solicitor lodged a Devolution Minute stating that Bs right to a fair trial under Article 6(3)(c) of the European Convention on Human Rights would be breached if the Crown were to lead evidence of his police interview since, it was claimed, access to a solicitor should be automatic when someone has been detained in police custody.
+The propositions in the Devolution Minute were based on observations of the High Court of Justiciary in Jude v HM Advocate [2011] HCJAC 46, 2011 SLT 722, in which the Lord Justice Clerk (Gill), delivering the unanimous opinion of the Court, had stated that he could not see how a person could waive his right to legal advice when he had not had access to legal advice on the point.
+In view of the importance of the question raised by that observation, the Lord Advocate invited the sheriff to refer the issue to the Supreme Court.
+The amended reference agreed between the parties sets out the following questions for consideration by the Court: (i) Whether, in principle, it would be incompatible with Article 6(1) and 6(3)(c) for the Lord Advocate to lead and rely upon evidence of answers given during a police interview of a suspect in police custody who, before being interviewed, had been informed of his Salduz/Article 6 rights to legal advice, and, without having received advice from a lawyer, had stated that he did not wish to exercise such rights; (ii) Whether it would be compatible with Bs rights under Articles 6(1) and 6(3)(c) for the Lord Advocate to lead and rely upon evidence of answers given in his police interview.
+Both parties agreed that question (i) should be answered in the negative.
+The Appellant argued that question (ii) should be answered in the affirmative.
+The Respondent disagreed.
+The Supreme Court, by a 4 1 majority, answers the first question in the reference in the negative, and remits the second question to the sheriff.
+Lord Hope gives the leading judgment.
+Lord Kerr gives a separate dissenting judgment.
+Article 6 does not expressly state that a person must have had legal advice before he can be taken to have waived the right of access to a lawyer.
+However, it is clear that the article is to be interpreted broadly by reading into it a variety of other rights to which the accused person is entitled, so as to give
+practical effect to the right to a fair trial [11].
+The task for the Supreme Court is to identify as best it can the requirements which the Strasbourg court has set for the making of an effectual waiver of Convention rights.
+It may be that the way police interviews are currently conducted in Scotland is in need of improvement.
+But that should not be done by giving a more generous scope to the Convention rights than that which is to be found in the jurisprudence of the Strasbourg court or by laying down fixed rules that may impede the prosecution of crime in Scotland unless they have been clearly identified as such by Strasbourg [5, 6].
+In order to be effective as a waiver of a Convention right, the acts from which the waiver is to be inferred must be voluntary, informed and unequivocal [21], and must be attended by the minimum safeguards commensurate to the importance of the right [27].
+None of the Strasbourg cases indicate that an accused who acts of his own free will in waiving his right to legal assistance must always have access to legal advice before he can be held validly to have waived that right.
+This also reflects the position of the Supreme Courts of Canada and the United States [37 44].
+There is no generally internationally recognised human rights standard on the issue of waiver that would support the conclusion that access to legal advice is an essential prerequisite to an effective waiver by a detainee of the right of access to a lawyer when he is being questioned by the police [45].
+The statements of the Lord Justice Clerk in Jude to the effect that there is a rule requiring legal advice for the purpose of a valid waiver of the right to legal assistance should be disapproved.
+Where the detainee, having been informed of his rights, states that he does not want to exercise them, his express waiver of those rights will normally be held to be effective.
+The minimum guarantees are that he has been told of his right, that he understands what the right is and that it is being waived and that the waiver is made freely and voluntarily [46].
+The Strasbourg decisions indicate, however, that in some cases access to a lawyer may well be a prerequisite of a valid waiver.
+In particular, it must not be taken for granted that everyone understands the rights in question.
+People who are vulnerable or under the influence of alcohol or drugs may need to be given more than standard formulae if their right to a fair trial is not to be compromised [36 & 47].
+What we have been given by Strasbourg is a guiding principle as to what is needed for there to be an effective waiver.
+Its application in determining whether there will be, or has been, a fair trial will depend on the facts of each case [50].
+Two suggestions are made for the improvement of the practice that is adopted at present: first, in order to minimise the risk of misunderstanding, police should ask the detainee for his reasons for waiving his right to legal assistance, and record the reasons given.
+This will provide an opportunity for any obvious misunderstandings to be corrected, though police officers should not go so far as to offer advice to the detainee [49].
+Second, police should inform the detainee not only of his right to legal assistance, but also of the arrangements that may be made if he is unable to name a solicitor or is concerned about the cost of employing one [51].
+It would not be appropriate to reach a decision on question (ii) in this case.
+The issue comes before the Court as a reference and not as an appeal.
+It raises questions of fact and degree which ought properly to be dealt with by the sheriff, after hearing all the evidence on this issue [53].
+Lord Kerr would have answered both questions in the negative.
+No attempt had been made to discover why B had refused to avail himself of legal assistance, and therefore it was impossible to say that this was an unequivocal and informed waiver [128].
+Only in exceptional circumstances should statements made by a suspect who has not had access to a lawyer be admitted in evidence [125].
+The suggestions made by Lord Hope should be implemented as rules requiring police to obtain reasons from suspects who purport to waive their right to legal assistance.
+Unless one knows why the decision to waive has been made, it cannot be said to be voluntary, informed and unequivocal [115].
diff --git a/UK-Abs/train-data/summary/uksc-2011-0234.txt b/UK-Abs/train-data/summary/uksc-2011-0234.txt
new file mode 100644
index 0000000000000000000000000000000000000000..1d6176f86b7566786600fbcbd92a27b92fa6abb4
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2011-0234.txt
@@ -0,0 +1,55 @@
+The dispute which has given rise to this appeal is a product of the failure of Icelands entire banking system in the autumn of 2008.
+The issue is how cross claims between two credit institutions are to be dealt with in insolvency proceedings in two different states in the European Economic Area (the EEA).
+Landsbanki Islands hf (Landsbanki) is an Icelandic company.
+Its wholly owned subsidiary, Heritable Bank plc (Heritable), is a Scottish company.
+Both companies have been in formal insolvency since 7 October 2008.
+On that date, the Court of Session appointed joint administrators to Heritable, and the Financial Services Authority of Iceland took control of Landsbanki.
+The District Court of Reykjavik later appointed a winding up board to Landsbanki [1 3, 38].
+The relevant European legislation is Directive 2001/24/EC of 4 April 2001 on the reorganisation and winding up of credit institutions (the Directive), which applies to EU Member States and non EU countries in the EEA, including Iceland.
+The Directive was implemented in the UK by The Credit Institutions (Reorganisation and Winding up) Regulations 2004 (the Regulations).
+Landsbanki is an EEA credit institution for the purpose of Part 2 of the Regulations.
+Heritable is a UK credit institution for the purposes of Parts 3 and 4.
+Regulation 5 in Part 2 of the Regulations provides in essence that an EEA insolvency measure has effect in the UK in relation to the branches of an EEA credit institution, its property and assets, and its debts and liabilities, as if it were part of the general law of insolvency of the UK [2, 4, 23, 33].
+Landsbanki submitted a total of four claims in Heritables administration in Scotland, but only one, submitted in December 2008 for about 86m in respect of a revolving credit facility governed by English law, is the subject of this appeal.
+Heritables administrators rejected that claim in November 2009, applying the Scots law rule on the balancing of accounts in bankruptcy, on the ground that Heritable had claims against Landsbanki which equalled or exceeded the amount of Landsbankis claim and which served to extinguish it.
+Later in November 2009, Landsbanki appealed to the Court of Session in Scotland against the administrators decision.
+In October 2009 Heritable had submitted four claims in Landsbankis winding up in Iceland.
+In January 2010 Landsbankis winding up board rejected three and accepted the fourth in a reduced amount.
+Heritables administrators formally objected to these decisions in February 2010 [5 10].
+In the Court of Session appeal in Scotland, Landsbanki argued that the rejection of Heritables claims had effect and was binding in the UK in terms of regulation 5 of the Regulations, and that Heritables administrators were therefore bound to hold that Heritable had no claim against Landsbanki which could operate by way of set off.
+Heritable argued that Landsbankis argument was irrelevant.
+In Iceland, Heritables administrators asked that no further steps be taken in relation to their objections until Landsbankis Court of Session appeal in Scotland had been finally determined.
+Landsbankis winding up board declined this request and referred the objections to the District Court of Reykjavik in March 2010.
+Heritables administrators unsuccessfully sought a stay of those proceedings pending a determination of the point before the Court of Session [10, 12].
+Back in Scotland, the Lord Ordinary in the Court of Session found in favour of Landsbanki in July 2010 after a debate.
+Following this decision, Heritables administrators withdrew Heritables claims from Landsbankis winding up in August 2010.
+Landsbanki then issued a counterclaim in the proceedings in the District Court of Reykjavik seeking a declaration that the Heritable claims had been extinguished.
+Heritables administrators
+successfully applied to discontinue the proceedings before the District Court of Reykjavik and the appeal of Landsbankis winding up board to the Icelandic Supreme Court was unsuccessful.
+Back again in Scotland, Heritable appealed against the Lord Ordinarys decision and the Inner House of the Court of Session reversed the Lord Ordinary in September 2011.
+Landsbanki now appeal to the Supreme Court.
+The issue is whether Heritables claims, extinguished as a matter of Icelandic law, are to be treated as extinguished in Heritables administration so that Heritables administrators cannot use them to set off Landsbankis claim [11, 13 16, 22, 43].
+The Supreme Court unanimously dismisses Landsbankis appeal.
+It affirms the decision of the Inner House of the Court of Session.
+The judgment is given by Lord Hope with whom all the other Justices agree [62].
+Heritables administrators may use the Heritable claims by way of set off against Landsbankis claim.
+The key to a proper understanding of regulation 5 lies in an appreciation of the fact that, while it is designed to give effect to the mandatory choice of the law of insolvency of the EEA state in which the foreign credit institution is located, it is not concerned in the least with the effects of the mandatory choice of Scots law for the administration of Heritable in Scotland.
+Those effects are provided for in Parts 3 and 4 of the Regulations, which have nothing to do with the effects of the mandatory choice of the law of Iceland for the winding up of Landsbanki [58].
+Seen in the context of Part 2 of the Regulations (which is concerned with jurisdiction in relation to credit institutions), there is nothing remarkable about what regulation 5 sets out: even if an EEA credit institution has branches in the UK, the entire process of winding up must be conducted in its home state.
+Applied in this case, regulation 5 provides, among other things, that Landsbankis property or assets located in Scotland are not to be disposed of in accordance with Scots law, and that steps by a creditor to enforce a claim against Landsbanki are to be pursued solely in the proceedings in Iceland.
+For the purposes of the winding up, decisions taken by the winding up board are to be given effect in Scotland.
+In this way the integrity of the exclusive jurisdiction that is given to Iceland is preserved.
+But the provisions of regulation 5 are concerned only with the winding up in Iceland in relation to Landsbanki and it is only for that purpose that the winding up is to have effect as if it were part of the general law of insolvency in the UK.
+The provisions do not apply to the administration of Heritable in Scotland.
+The rules which apply to Heritable are set out in Parts 3 and 4 of the Regulations [52 54].
+Regulations in Parts 3 and 4 provide that the general law of insolvency has effect in relation to UK credit institutions and that matters such as the conditions under which set off may be invoked and the rules governing, among other things, the admission and ranking of claims are to be determined in accordance with the general law of insolvency of the UK.
+They also preserve the right of creditors to demand the set off of their claims against the claims of the insolvent credit institution, where set off is permitted by the law applicable to the credit institutions claim.
+Issues of set off are therefore to be determined as the common law of Scotland requires, according to the proper law of the contract.
+That rule is conceived in the interests of creditors in other EEA states, bearing in mind that exclusive jurisdiction is given to the UK as the home state.
+The creditors right to claim set off is put onto the same basis as creditors in the UK [56, 57].
+Although not decisive, Landsbankis argument also produces an arbitrary and unprincipled outcome.
+Its logic is that Heritables claims against Landsbanki would have been extinguished even if Heritable had been a wholly solvent company.
+The only way for Heritable to have avoided the extinguishment of its claim and therefore retained the right to use it by way of set off would have been for it to lodge and maintain it in Landsbankis winding up, even if it would not have been cost effective to do so or the prospects of recovery were nil.
+The effect of Landsbankis argument would also be to give universal priority to the process in which a decision happened to be made first.
+That would encourage forum shopping, especially where there was a prospect of inconsistent findings as to the validity of a claim in different states.
+It is hard to believe that this was intended by the framers of the Directive [59 61].
diff --git a/UK-Abs/train-data/summary/uksc-2011-0247.txt b/UK-Abs/train-data/summary/uksc-2011-0247.txt
new file mode 100644
index 0000000000000000000000000000000000000000..02bf8aab4653a5fbabb1456e9d1627538a7b3960
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2011-0247.txt
@@ -0,0 +1,41 @@
+On 9 September 1988, the Appellant (SerVaas) entered into an agreement with the Iraqi Ministry of Industry for the supply of equipment, machinery and related services required for the commissioning of a state owned copper and brass processing factory in Iraq.
+On 2 August 1990 Iraq invaded Kuwait and on 4 August 1990, the assets of Rafidain Bank (Rafidain) in the UK were frozen in accordance with a United Nations sanctions regime.
+On 13 August 1990 SerVaas terminated the agreement and subsequently commenced proceedings in the Paris Commercial Court against the Ministry to recover money due under the agreement.
+It gave judgment in favour of SerVaas for US$14,152,800 (the Judgment).
+The Judgment was recognised in the Netherlands and SerVaas recovered US$966,515 by partial enforcement there against Iraqs assets.
+In July 2002, SerVaas received US$6,736,285 from the UN Claims Commission by way of compensation for losses caused by Iraq as a result of the invasion of Kuwait.
+In May 2003, the regime of Saddam Hussein in Iraq fell.
+On 22 May 2003 the UN Security Council passed Resolution 1483 establishing the Development Fund for Iraq (DFI).
+On 21 November 2004, Iraq made a debt cancellation agreement with government creditors comprising the Paris Club.
+In December 2004, Iraq began a process of debt restructuring with its commercial creditors and the creditors of other specified Iraqi entities, including Rafidain under the auspices of the Iraq Debt Reconciliation Office (the IDRO Scheme).
+Rafidain, in the meantime, had had a winding up petition presented in respect of it by the Bank of England, in relation to which Provisional Liquidators had been appointed in respect of its UK assets, but which petition had been adjourned generally.
+On 26 July 2005, Iraq announced an offer to repurchase claims for the commercial creditors of specified Iraqi debtors, including Rafidain, where claims arose before 6 August 1990.
+In May 2006, Iraq issued an invitation to tender claims for cash purchase and for exchange.
+Thereafter Iraq took assignments of certain debts owed to Rafidains creditors by Rafidain in accordance with the IDRO Scheme.
+On 3 April 2008, a scheme of arrangement for the distribution of assets held by the Provisional Liquidators to Rafidains creditors was sanctioned (the Scheme).
+By 19 August 2009, Iraq had submitted claims in the Scheme which were admitted in the sum of US$253.8 million (the Admitted Claims).
+The original commercial debts constituting the Admitted Claims were acquired by Iraq by way of assignment from existing creditors of Rafidain.
+On 4 November 2009, SerVaas obtained an order registering the Judgment in England and Wales against the Ministry under the Civil Jurisdiction and Judgments Act 1982 (the Registration Order).
+It was served on Iraq on 2 May 2010 and became enforceable against the Ministry and Iraq in England and Wales on 2 September 2010.
+On 11 October 2010 Iraqs US lawyers responded to a request from the Scheme Administrators by stating that the dividend payment on the Admitted Claims should be paid to the account in the name of the DFI with the Federal Reserve Bank in New York.
+As at November 2010, the debt due in respect of the Judgment is said to have amounted to US$34,481,200.49.
+In the meantime on 7 October 2010 Mann J granted an application by SerVaas lifting the stay on proceedings against Rafidain and made an order preventing Rafidain, the Provisional Liquidators and the Scheme Administrators from making any payment to Iraq under the Scheme in respect of the Admitted Claims or recognising or giving effect to any assignment or transfer of the Admitted Claimant to a third party which would have the effect of reducing the amount payable to Iraq to an amount less than the Judgment debt.
+On 13 October 2010 SerVaas issued an application for a Third Party Debt Order, that is, an order that the debts payable to Iraq by Rafidain by way of dividend under the Scheme be instead paid to SerVaas insofar as necessary to satisfy the Judgment.
+On 30 November 2010, the Charg dAffaires and Head of Mission of the Embassy of Iraq in London signed a certificate (the Certificate) that the Admitted Scheme Claims have never been used, are not in use and are not intended to be for use for any commercial purpose.
+Iraq applied to discharge the injunction on the ground that monies due to Iraq by Rafidain were immune from execution by virtue of section 13(2)(b) of the State Immunity Act 1978.
+In the High Court, Arnold J held that the Admitted Claims were immune from execution by reason of s.13(2)(b) and (4) because they were not property which was for the time being in use or intended for use for commercial purposes.
+By a majority, the Court of Appeal dismissed SerVaas appeal.
+SerVaas appealed to the Supreme Court.
+The Supreme Court unanimously dismisses the appeal.
+Whether property is for the time being in use or intended for use for commercial purposes within the meaning of s.13(4) of the State Immunity Act 1978 does not depend on whether that property has in the past been used for commercial purposes.
+Lord Clarke gives the leading judgment with which Lord Phillips, Lady Hale, Lord Sumption and Lord Reed agree.
+It was common ground that (a) the monies payable under the Scheme are a debt and a chose in action and as such are property within the meaning of s.13(2)(b); (b) that Iraqs state intention is to transfer the proceeds of the Admitted Claims to the DFI; (c) that, the Certificate creates a rebuttable presumption that the Admitted Claims are not in use or intended for use for commercial purposes; (d) that the onus lies on SerVaas to show a real prospect that it can rebut that presumption; and (e) that the debts were intended for use for sovereign and not commercial purposes.
+As these are summary proceedings, the issue is whether there is any real prospect of SerVaas rebutting the presumption.
+The central question in this appeal is therefore whether the nature of the origin of the debts is relevant to the question whether the property in question was in use for commercial purposes.
+It is not.
+This conclusion is based on the language of s.13(4) and on previously decided domestic and comparative authority.
+As to language, s.13(4) should be given its ordinal and natural meaning having regard to its context and it would not be an ordinary use of language to say that a debt arising from a transaction is in use for that transaction.
+Parliament did not intend a retrospective analysis of all the circumstances which gave rise to property but an assessment of the use to which the state had chosen to put the property.
+The language of s.13(4) can also be contrasted with other sections of the Act.
+As to authority, Lord Diplock in Alstom v Republic of Columbia [1984] AC 580 distinguished between the origin of the funds on the one hand and the use of them on the other.
+Various decisions of the American Federal courts of appeals and of the Court of Appeal in Hong Kong also support this distinction.
diff --git a/UK-Abs/train-data/summary/uksc-2011-0265.txt b/UK-Abs/train-data/summary/uksc-2011-0265.txt
new file mode 100644
index 0000000000000000000000000000000000000000..c3a53068b2b2ee5d0abd4e425b66ff5411f8a3ad
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2011-0265.txt
@@ -0,0 +1,44 @@
+A mother appeals against an order of the English Court of Appeal that she should immediately return her son, WS (hereafter W), who is aged two, to Australia.
+The order was made pursuant to Article 12 of the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (the Convention) and to section 1(2) of the Child Abduction and Custody Act 1985, which incorporates the Convention into domestic law [1].
+The mother is British, with Australian citizenship; the father is Australian [4].
+The parents, who were not married, lived with W in Sydney [4].
+In 2005 the mother had moved to Australia with her British husband; her marriage failed and she was divorced in 2008 [8].
+In October 2008 Ws parents began to cohabit [8].
+Between 1994 and 1998 the father had been a heroin addict and unfortunately, the beginning of their relationship and of the mothers pregnancy in February 2009, was a period of impending financial disaster for him, which ended in the collapse of his business with massive debts [9].
+The father later took work as an estate agent, but contributed little to the household expenditure, which was largely met by the mother who was employed as a specialist clinical nurse [9].
+The grave financial problems led to serious alcohol and drug relapses on the fathers part between 2009 and 2011 [10].
+The mother suffered mental health problems, including anxiety and depression relating to separation from her husband in 2007, for which she took medication until she became pregnant in 2009 [17].
+From June 2010 the mother had had extensive psychotherapy in Australia, which continued after her return to the UK [17], for a chronic anxiety condition [18].
+In January 2011 the relationship between the parents began to break down.
+On 19 January 2011 the mother contends that she found the father injecting himself in the car in the garage and so she called the police and told him not to enter the flat again; the father admits only to drinking that day [11], although subsequently in reply to emails from the mother he did not deny the drug taking [11].
+In light of the many text and emails that were to pass between the parents from January and June 2011, the mothers serious allegations against the father were admitted or could not be realistically be denied [7].
+On 27 January 2011 the Australian police obtained on the mothers behalf, without notice, an Apprehended Violence Order (similar to a non molestation order) [12].
+On 2 February 2011 the mother removed W to England, without the fathers consent or the permission of an Australian court.
+The removal was therefore in breach of the fathers rights of custody under Australian law and so it was wrongful for the purpose of Article 3 of the Convention.
+The only defence raised by the mother to the fathers application for an order for the summary return of W to Australia under the Convention was under Article 13(b) that there is a grave risk that his return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation [5].
+The evidence of the mothers psychologist was that, in the event of a return of W, with the mother, to Australia, her fear of the fathers mental state and of his impulsive actions towards her together with the stress of isolation in Australia from her family would be likely to cause clinical depression, which in turn could diminish her secure attachment to W [18].
+Further evidence from the jointly instructed psychiatrist was that the mother had suffered from Battered Womens Syndrome, a form of Post Traumatic Stress Disorder, followed by an acute stress reaction [25].
+The psychiatrist appeared to consider that the necessary protective measures mainly comprised treatment for the father, but his evidence could, however, have been clearer on whether the protective measures suggested by the father would, in the event of return, protect W against the risk of physical or psychological harm [26].
+At first instance, Charles J had declined to order Ws return to Australia.
+The Court of Appeal ordered Ws immediate return.
+The issue in this appeal was whether that Court should have proceeded on the basis that that there were nothing more than disputed allegations to support the mothers defence.
+A question also arose about the correct approach to the subjective perceptions of risk held by a parent.
+The Supreme Court unanimously allows the mothers appeal; Lord Wilson gives the judgment of the Court.
+In Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 the Supreme Court held that the terms of Article 13(b) of the Convention were plain, that they needed neither elaboration nor gloss; and that, by themselves, they demonstrated the restricted availability of the defence [6].
+In that case, the Court held that where disputed allegations of domestic abuse are made, the court should first ask whether, if they are true, there would be a grave risk that the child would placed in an intolerable situation; and if so, the court must then ask how the child can be protected against the risk [20].
+If the child cannot be protected, the court should seek to determine the truth of the disputed allegations.
+Following a careful appraisal of the documentary evidence, Charles J had held that a number of serious allegations made by the mother against the father were admitted or could not sensibly be denied and that, in respect of her other allegations, she had made out a good prima facie case that she was the victim of significant abuse at the hands of the father [29].
+In light of this conclusion, it was unnecessary for Charles J to continue to address the mothers subjective perceptions, as her anxieties had been based on objective reality [29].
+The Court of Appeal referred briefly to the nature of the parents relationship but did not refer to the many facts that provided the foundation of the mothers defence [30 31].
+The Court of Appeal failed to appreciate that the mothers fears about the fathers likely conduct rested on more than disputed allegations and to have regard to the importance of the medical evidence [35].
+The Court of Appeal had specified the crucial question as being whether the mothers anxieties were realistically and reasonably held.
+In In re E, however, the court held that a defence under Article 13(b) could be founded upon the anxieties of a parent about a return with the child to the state of habitual residence, which were not based upon objective risk to her, but were nevertheless of such intensity as to be likely to destabilise the parenting of that child to the point at which the childs situation would become intolerable [27].
+No doubt a court will look very critically at an assertion of intense anxieties not based upon objective risk and will also ask whether they can be dispelled [27].
+The critical question is what will happen if the parent and child are returned [34].
+If, upon return, the parent will suffer such anxieties that their effect on the parents mental health will create a situation that is intolerable for the child, then the child should not be returned.
+It matters not whether the parents anxieties will be reasonable or unreasonable.
+The extent to which there will be good cause for those anxieties will nevertheless be relevant to the courts assessment of the parents mental state if the child is returned [34].
+The judgment as to the level of risk had been one for the judge at first instance, and should not have been overturned unless, whether by reference to the law or to the evidence, it had not been open to the judge to make it [35].
+Charles J had been entitled to hold that the interim protective measures offered by the father in the event of a return to Australia did not obviate the grave risk to W and it was not open to the Court of Appeal to substitute its contrary view [35].
+In the recent case of X v Latvia (Application no. 27853/09) the ECtHR (Third Section) had reiterated its apparent suggestion in Neulinger and Shuruk v Switzerland [2011] 1 FLR 122 that in a Hague Convention case an in depth examination of the issues was mandated by the parties Article 8 ECHR rights to respect for family and private life.
+The Supreme Court considers that neither the Convention nor, surely, the ECHR requires such an in depth examination.
diff --git a/UK-Abs/train-data/summary/uksc-2012-0003.txt b/UK-Abs/train-data/summary/uksc-2012-0003.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e2f1b5f8c161f1b61ad43349c69f9b5f2837e008
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2012-0003.txt
@@ -0,0 +1,30 @@
+This appeal arises out of applications by the Financial Services Authority for orders to wind up the appellants in the public interest under s.367(1)(c) of the Financial Services and Markets Act 2000 (FSMA), on the ground that each of them is carrying on or has carried on a regulated activity in contravention of the general prohibition.
+The general prohibition is that at s.19 of FSMA, which provides that no person may carry on a regulated activity unless he is either an authorised or exempt person.
+Regulated activities include a wide range of general insurance business, including effecting or carrying out any of the 18 classes of contracts of general insurance listed in Schedule 1, Part I to the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001.
+Class 16 is the class most relevant to the present appeal (Miscellaneous Financial Loss).
+This includes contracts insuring against risk of loss to the insured attributable to their incurring unforeseen expense, as well as any other kind of risk (not covered by other provisions).
+The classes substantially replicate the classes in the Annex to the First Council Non Life Insurance Directive 73/239/EEC as amended by Council Directive 84/641/EEC (the First Directive).
+The appellants sold and performed extended warranty contracts under which, in consideration of a periodic payment, they contracted to repair or replace satellite television dishes, satellite boxes and associated equipment.
+It was agreed that the contracts were contracts of insurance and that the appellants were not authorised under FSMA to carry on any kind of insurance business.
+Nonetheless, the appellants case is that the contracts were not of a kind which required their business to be authorised under FSMA because the classes of regulated activities did not extend to contracts which only provided benefits in kind, i.e. repair services and replacement goods.
+Warren J [2011] Bus LR 981 rejected this argument and ordered the appellants to be wound up, and the Court of Appeal dismissed their appeal.
+The Supreme Court unanimously dismisses the appeal.
+Lord Sumption gives the judgment of the Court.
+The appellants case depends on the proposition that in specifying certain categories of direct non life insurance business which member states must regulate in accordance with EC law, the First Directive precluded member states from regulating further or wider categories under their national law.
+However, the Court concludes that the First Directive is concerned only to prescribe what kinds of
+business national law must regulate and not what other kinds of business it may regulate.
+Even if Classes 1 to 17 in the First Directive are confined to insurance providing pecuniary benefit, there is nothing to prevent the UK from legislating to regulate insurance of those descriptions irrespective of whether they provide benefits in cash or kind or both [4].
+The First Directive was never intended to impose a comprehensive scheme of authorisation.
+Nor can the 18 classes of business listed in the Annex to the First Directive have been intended to limit the freedom of member states to regulate in other categories of business [12].
+The partial character of the scheme of authorisation in the First Directive is recognised by the recitals.
+These show that it was appreciated that significant differences between national schemes of authorisation would persist, and that these would continue to operate as partial barriers to the exercise of the right of establishment.
+The object of the First Directive as a whole is to impose certain uniform principles of regulation on insurance businesses in the standard classes, but not on any falling outside those classes.
+This is why Article 1 to the First Directive is concerned with the conduct of businesses in the classes of insurances defined in the Annex to this Directive [13].
+Member states deal with each others authorisations by reference to the standard classes in the First Directive.
+As far as they are concerned, any difference between the content of those classes and that of the corresponding categories of business in national law is irrelevant [14].
+If the First Directive could be read so as to preclude national regulation of insurance not within the First Directive, it would allow it to be carried on without any regulatory protection for consumers [15].
+The Court agrees with the decision of the courts below that, on the facts, the appellants businesses fell within the risks identified in Class 16 [16, 19].
+A contract which brings about the result an insured would otherwise have to pay to achieve (i.e. having functioning equipment) was a contract that protects him from financial loss irrespective of whether the insurer or the insured is obliged to pay in the first instance [18].
+The only argument against this could be that the common law position (that insurance contracts are payments of sums of money or some corresponding benefit) is displaced by the requirement to construe domestic legislation so as to conform to EU law.
+However, there is no prohibition in the First Directive against regulating any insurance business falling outside the 18 classes in the Annex.
+Nor does the Directive throw any light on the meaning of the language of Class 16 (Miscellaneous Financial Loss) which was derived, not from the First Directive, but from the statutory definition of business covered by the previous, wholly domestic, scheme of statutory regulation [19 21].
diff --git a/UK-Abs/train-data/summary/uksc-2012-0015.txt b/UK-Abs/train-data/summary/uksc-2012-0015.txt
new file mode 100644
index 0000000000000000000000000000000000000000..4ecfc8417c832b5ffa2d0ba7c2388dfc0720ae0e
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2012-0015.txt
@@ -0,0 +1,35 @@
+In 2003 Ms Preston was admitted to full connexion in the Methodist Church and thereupon ordained.
+She was then stationed at the Taunton Circuit as a probationer and, in November 2005, she accepted an invitation to become the Superintendent Minister in the Redruth Circuit.
+In 2009, she brought a claim against the Church in an employment tribunal for unfair dismissal.
+Under section 94 of the Employment Rights Act 1996, only an employee has the right not be unfairly dismissed.
+Section 230 of that Act defines an employee as someone who has entered into or works under a contract of service or apprenticeship.
+The question at issue on this appeal is whether Ms Preston was employee.
+The tribunal held she was not.
+That decision was, however, reversed by the Employment Appeal Tribunal in a decision subsequently upheld by the Court of Appeal.
+The Supreme Court allows the appeal by a majority of four to one (Lady Hale dissenting), and restores the order of the Employment Tribunal dismissing Ms Prestons claim.
+Lord Sumption (with whom Lords Hope, Wilson and Carnwath agreed) gives the main judgment of the Court.
+The modern authorities made clear that the question whether a minister serves under an employment contract can no longer answered by classifying the ministers occupation by type: office or employment, spiritual or secular.
+Nor can it be answered by any presumption against the contractual character of the service of ministers.
+The primary considerations are the manner in which a minister is engaged, and the rules governing his service.
+This depends on the intentions of the parties and, as with all such exercises any such evidence of the parties intentions falls to be examined against the factual background.
+Part of that background is the fundamentally spiritual purpose of the functions of a minister of religion [10, 33].
+The constitution and standing orders of the Methodist Church showed that [20]: (1) A ministers engagement is incapable of being analysed in terms of contractual formation.
+Neither admission to full connection nor ordination are themselves contracts. (2) A ministers duties thereafter are not consensual.
+They depend on the unilateral decisions of the Conference. (3) The stipend and manse are due to a minister by virtue only of admission into full connection or ordination, and while a minister remains in full connection and in active life, these benefits continue even in the event of sickness or injury. (4) The disciplinary rights under the Churchs Deed of Union, which determine the way a minister may be removed, are the same for ordinary members as well as ministers. (5) The relationship between the Church and the minister is only terminable by the Conference or its Stationing Committee or by a disciplinary committee, and there is no unilateral right to resign, even on notice.
+The ministry
+described in the constitution and standing orders is a vocation, by which candidates submit themselves to the discipline of the Church for life.
+Absent special arrangements with a minister, a ministers rights and duties arise from their status in the Churchs constitution and not from any contract [20, 34].
+With regard to Ms Prestons ministry, the exchange of letters by which she came to be stationed at Redruth might in other contexts be viewed as contractual.
+However, the standing orders showed that a circuits invitation is no more than a proposal to the Conferences Stationing Committee that they should recommend the candidate to the Conference for stationing in their circuit.
+While every effort is made to meet the preferences of circuits and ministers, the decision is reserved to the Conference.
+It may be delegated only to the President of the Conference, not to the circuit, and then only if the appointment has to be made between Conferences.
+The relevant relationship is between the minister and the Conference, and the Conference can move a minister from one circuit to another even before the end of the period for which the circuit invited the candidate to serve.
+There is no fresh relationship with each invitation or with each appointment.
+Ms Preston was serving as a minister at Redruth not pursuant to the five year relationship envisaged in the exchange of letters, but pursuant to the life long relationship into which she had already entered when she was ordained [23].
+Lady Hale (dissenting) held that it would be odd if a minister who was not paid his or her stipend or evicted from his or her manse could not rely upon his or her terms of appointment to enforce the payment or to regain possession.
+The suggestion that a minister would be a beneficiary under a trust upon which the Church holds its property was inconsistent with the stipend being paid centrally and the Church holding property under numerous different trusts.
+The Conference controls a ministers remuneration and accommodation.
+There is a distinction between being a minister and having a particular appointment within it.
+A minister is assigned to a particular post for a defined period with particular duties, a particular manse and a stipend dependent on the level of responsibility.
+In any other context, such a post would involve a contract of employment.
+A prior (non enforceable) commitment to go where you are assigned does not negate a mutual contractual relationship when you are assigned and agree to go to a particular place [48].
diff --git a/UK-Abs/train-data/summary/uksc-2012-0017.txt b/UK-Abs/train-data/summary/uksc-2012-0017.txt
new file mode 100644
index 0000000000000000000000000000000000000000..343384c0dcfd8dad50cee5aa85556322ece79250
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2012-0017.txt
@@ -0,0 +1,35 @@
+The issue in the appeal is: what are the statutory consequences if the fingerprints of a defendant have been taken in a police station in Northern Ireland by an electronic device for which the legislation required approval from the Secretary of State, when such approval has never been given? In particular, is any evidence which makes use of the fingerprints taken on such a device inadmissible at the defendants trial? The appellants were charged with theft in Northern Ireland.
+The offence was alleged to have taken place on 6 October 2007.
+A stack of building materials had been found removed from the owners depot apparently ready for collection by thieves.
+The appellants were found nearby in a van but said they were waiting there innocently.
+They were arrested and their fingerprints were taken at the police station using an electronic fingerprint scanner called Livescan.
+This machine has been commonly used by police in the UK, including in Northern Ireland, for a number of years.
+A fingerprint matching Elliotts left thumb was found on packaging of the building materials.
+Article 61 of the Police and Criminal Evidence (Northern Ireland) Order sets out the powers of the police to take fingerprints without consent.
+Between 1 March 2007 and 12 January 2010 article 61(8B) provided that where a persons fingerprints are taken electronically, they may only be taken using such devices, as the Secretary of State has approved for the purpose of electronic fingerprinting.
+Due to an oversight no approval was ever given to any device (including Livescan) until it was belatedly provided on 29 March 2009.
+Article 61(8B) was later repealed by the Policing and Crime Act 2009.
+Therefore at the time the fingerprints were taken from the appellants there was no approval for the Livescan machine in breach of article 61 (8B).
+The appellants were convicted at trial and no issue over the fingerprints was taken.
+After the lack of approval for the Livescan device was noticed the appellants appealed to the County Court which, after a full re hearing, declared the fingerprint evidence inadmissible and acquitted the appellants.
+The Public Prosecution Service appealed to the Court of Appeal who allowed the appeal and reinstated the appellants convictions.
+The appellants primary argument before the Supreme Court and the courts below was that the lack of approval for the Livescan device meant that the fingerprints obtained with it were automatically inadmissible at the appellants trial.
+The Supreme Court dismisses the appeal.
+Lord Hughes gives the judgment of the court.
+The difficulty with the appellants argument is that the statute says nothing about the potential consequences of failure to use an approved device.
+This is despite the fact that there are numerous examples of other statutes where such consequences are expressly spelled out, such as in relation to obtaining specimens of breath for road traffic offences [8].
+There is a well understood common law rule that evidence which has been obtained unlawfully does not automatically become inadmissible.
+It is clear that this rule extends equally to evidence created by an unlawful process as it does to existing material uncovered by unlawful process.
+The common law background to the legislation (article 61 (8B)) shows that inadmissibility of the fingerprints here under consideration cannot possibly simply follow from the existence of the requirement for device approval [9].
+It is not correct to say that article 61 (8B) would have no purpose unless fingerprints obtained from unapproved devices were inadmissible at trial.
+A defendant who was asked to give a fingerprint on an unapproved device could lawfully refuse to do so.
+While, if such devices were found to be routinely in use by police, there would be no defence to an application for judicial review in which their unlawfulness could be declared and further use prohibited [10].
+The appellants relied on the rule that the product of a breathalyser test was inadmissible unless the testing device was an approved one.
+However, the requirement for approval of fingerprint devices is not analogous to that in cases of breath tests or speed guns.
+The latter are methods of measuring something that cannot be re measured, they capture a snapshot of the suspects activity and are often the offence itself i.e. being found to be over the prescribed limit of alcohol at the time of driving.
+The fingerprints on the other hand could be reproduced at any time afterwards, and would be the same.
+If the Livescan readings were disputed they could readily be independently checked for accuracy and further fingerprints taken by a different method.
+The ease of which this could be done shows there was no need for Parliament to stipulate that the product of unapproved fingerprint readers should be inadmissible.
+Further, no challenge was ever made by the appellants to the accuracy of the fingerprints taken by the Livescan device [15].
+The background material to the legislation shown to the Court further shows that the purpose of the requirement for device approval was not principally the protection of the individual against the risk of conviction on inaccurate evidence [16].
+Relevant parts of the Protection for Freedoms Act 2012 and Criminal Justice (Northern Ireland) Act 2013 regarding fingerprints that have yet to come into force further support the construction of the legislation chosen by the Supreme Court in this case as, where required, express provision is made for evidence to be inadmissible [18].
diff --git a/UK-Abs/train-data/summary/uksc-2012-0020.txt b/UK-Abs/train-data/summary/uksc-2012-0020.txt
new file mode 100644
index 0000000000000000000000000000000000000000..52561d0365dd620e53a748c76c98b750caa76044
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2012-0020.txt
@@ -0,0 +1,29 @@
+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]
diff --git a/UK-Abs/train-data/summary/uksc-2012-0062.txt b/UK-Abs/train-data/summary/uksc-2012-0062.txt
new file mode 100644
index 0000000000000000000000000000000000000000..3aeef099029c3b011efea701b00f0c91b2262318
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2012-0062.txt
@@ -0,0 +1,35 @@
+This test case raises a question about the jurisdictional boundary between the specialist tax tribunal and the ordinary courts, as well as an underlying issue as to the approach taken by the Revenue to enquire into a claim for loss relief made as part of a tax avoidance scheme used by some 200 taxpayers [1].
+On 31 October 2008, Maurice David Cotter filed a tax return for the 2007/08 year of assessment.
+He made no claim for loss relief in the return, and let the Revenue calculate his tax for that tax year.
+This resulted in a calculation of income and capital gains tax of 211,927.77 [2].
+In January 2009, Mr Cotters accountants wrote to the Revenue enclosing a provisional 2007/08 loss relief claim and amendments to his 2007/08 return.
+These added various entries to boxes in the return intimating that Mr Cotter had sustained an employment related loss of 710,000 in the tax year 2008/09 for which he claimed relief in tax year 2007/08 under the Income Tax Act 2007 [3 4].
+He acknowledged that his interpretation of the applicable tax law might not accord with that of the Revenue and stated, for these reasons I assume you will open an enquiry [5].
+His accountants then sent a copy of the loss relief claim to a Revenue recovery office, stating: As a result of this claim no further 2007/08 taxes will be payable by Mr Cotter [6].
+The Revenue wrote to Mr Cotters accountants to confirm that the tax return had been amended and that enquiries would be opened into the claim and the tax return.
+It indicated that it did not intend to give effect to any credit for the loss until those enquires were complete.
+On the same day, it issued a fresh tax calculation of 211,927.77.
+The Revenue then wrote to Mr Cotter intimating that it was enquiring into the amendment and the loss claim under Schedule 1A to the Taxes Management Act (TMA).
+His accountants informed the recovery office that they had asked the Revenue to amend the self assessment calculation [7].
+They asserted that (i) no further taxes were payable for 2007/08 because of the loss claim which was the subject of enquiry and (ii) that if tax were due as a result of an enquiry under section 9A TMA, it was not payable until the enquiry had been completed.
+Meanwhile, advisors acting for Mr Cotter wrote to the Revenue arguing that legal proceedings against him would be unlawful because his self assessment showed that no tax was payable as at 31 January 2009, and the Revenue had not amended his self assessment return [8].
+On 22 June 2009, the Revenue issued proceedings in the county court seeking recovery of 203,243, namely the income and capital gains tax for 2007/08 and the first payment of account for 2008/09.
+Mr Cotter argued that he was entitled to use his loss claim to reduce to nil the tax otherwise payable for 2007/08 and that the First tier Tribunal (Tax Chamber) had exclusive jurisdiction to determine whether that was the case [9].
+The proceedings were transferred to the High Court (Chancery Division) and on 14 April 2011 David Richards J held that the court had jurisdiction and that Mr Cotter was not entitled to rely on his claim for loss relief as a defence to the Revenues claim [10].
+This was overturned in the Court of Appeal.
+Lady Justice Arden (with whom Lords Justices Richards and Patten agreed) held that if the Revenue wished to dispute an item contained in a tax return it had to follow the procedure set out in section 9A TMA, which would have given Mr Cotter a right to appeal to the tribunal [11].
+The Supreme Court unanimously allows the Revenues appeal, restoring the relevant provisions of the High Courts order [35].
+The central question is whether the Revenue was correct to have carried out its enquiry under Schedule 1A to TMA (allowing postponement of relief until completion of the enquiry), or whether any enquiry ought to have been made under section 9A (with effect given to the claim meantime).
+Section 9A allows an officer to enquire into anything contained in the return, or required to be contained in the return, including any claim or election included in the return [19].
+Part of the appeal therefore involved a consideration of the meaning of a return in the relevant legislation.
+Delivering the Courts judgment, Lord Hodge provides guidance as to how the system works [33 36].
+In summary, where a taxpayer makes a claim for relief in a tax return form which is, on its face, relevant to that particular year of assessment, or where he chooses to calculate the amount payable and allows for the relief in his calculation, the Revenue may correct the tax return if it disagrees with the claim for relief.
+If the taxpayer rejects the amendment, the Revenue may institute a section 9A enquiry.
+Upon the closure of that enquiry, the taxpayer will have a right of appeal to the tribunal.
+In the meantime, effect is given to the loss relief claim [27; 34].
+If, by contrast, the taxpayer chooses to let the Revenue calculate his tax but includes a claim for relief in a tax return form which is clearly not relevant to the calculation of tax for that particular year of assessment, the Revenue may ignore the claim in its calculation.
+In other words, it may treat the claim as made otherwise than in a return, and Schedule 1A TMA shall apply.
+The Court considers that, in the present context, a return refers to the information in the tax return form which is submitted for for the purpose of establishing the amounts in which a person is chargeable to income tax and capital gains tax for the relevant year of assessment and the amount payable by him by way of income tax for that year (section 8(1) TMA) [24 25; 35].
+Lord Hodge notes that whilst treating everything on the tax return form as the tax return is attractive in its simplicity, it would expose the Revenue to irrelevant claims made in the form which have no merit and which serve only to postpone the payment of tax due [20 21].
+Having concluded, correctly, that the claim in respect of losses incurred in 2008/09 did not alter the tax chargeable or payable in relation to 2007/08, the Revenue was entitled indeed obliged to use Schedule 1A as the vehicle for its enquiry (section 42(11)(a) TMA) [26].
+The county court and the High Court had jurisdiction in this case as it was not an appeal against an assessment to tax in respect of a particular year of assessment (the exclusive jurisdiction of the tribunal [29]) but a question of whether a claim for relief for losses incurred in 2008/09, which the taxpayer had made in his tax return form for 2007/08, constituted a defence to the Revenues claim for immediate payment of the tax it had calculated as payable in respect of 2007/08 [29 32].
diff --git a/UK-Abs/train-data/summary/uksc-2012-0122.txt b/UK-Abs/train-data/summary/uksc-2012-0122.txt
new file mode 100644
index 0000000000000000000000000000000000000000..ce7abfabc17bcfc74ea53cd427b1fa26aca8e530
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2012-0122.txt
@@ -0,0 +1,31 @@
+The appellant, Mr Kennedy, is a journalist with The Times.
+On 8 June 2007 he made a request to the Charity Commission under the Freedom of Information Act 2000 (the FOIA) for disclosure of information concerning three inquiries conducted by the Charity Commission between 2003 and 2005 into the Mariam Appeal, which was launched by Mr George Galloway in connection with the sanctions imposed on Iraq following the first Gulf War.
+The Charity Commission refused Mr Kennedys request on the ground that the information was subject to an absolute exemption from disclosure contained in section 32(2) of the FOIA.
+The Court of Appeal, overturning the decision of the Information Tribunal, held that the absolute exemption applied and dismissed Mr Kennedys request.
+The issues before the Supreme Court on Mr Kennedys appeal are: (a) whether section 32(2) of the FOIA contains, as a matter of ordinary statutory construction, an absolute exemption which continues after the end of an inquiry; and (b) if it does contain such an absolute exemption, whether that is compatible with Mr Kennedys rights under article 10 of the European Convention on Human Rights (the Convention).
+If section 32(2) were not so compatible, the following further issues would arise: (c) in the light of the duty in section 3 of the Human Rights Act 1998 to interpret primary legislation so far as it is possible to do so in a way which is compatible with the Convention rights, should section 32 be read down so that either: (i) the absolute exemption ceases with the end of the relevant inquiry; or (ii) it contains only a qualified exemption (requiring a general balancing of the competing public interests) rather than an absolute exemption; and (d) if it is not possible to interpret section 32(2) in a manner that is compatible with the Convention, whether the Supreme Court should make a declaration of incompatibility. [9]
+Lord Mance and Lord Toulson give the leading judgments with which a majority of the court agrees.
+Lord Sumption gives a concurring judgment.
+Lord Wilson and Lord Carnwath give dissenting judgments.
+As a matter of ordinary statutory construction, section 32(2) of the FOIA imposes an absolute exemption from disclosure that lasts until the relevant information is destroyed or for up to 30 (or in future 20) years under the Public Records Act 1958 (Lord Mance at [24 34], Lord Toulson at [102 104]).
+Mr Kennedy is not assisted by his reliance on the Convention as, in respect of his ability to obtain information, the Charities Act 1993 and the common law put Mr Kennedy in no less favourable position than he would be in if article 10 of the Convention were engaged (Lord Mance at [35 41], Lord Toulson at [105 132]).
+In any event, article 10 does not impose a freestanding positive duty of disclosure on public authorities (Lord Mance at [57 100]).
+Ordinary statutory construction The more natural interpretation of section 32(2) is that the absolute exemption continues after the end of the relevant inquiry.
+The words for the purposes of the inquiry or arbitration qualify the immediately preceding words in 32(2)(a) and (32)(2)(b) and refer to the original purpose for which the relevant documents were placed in the custody of, or were created by, a person conducting an inquiry.
+They do not refer to the purpose for
+which a public authority holds the documents at the time of a request for information. (Lord Mance at [24 28], Lord Toulson at [102 103]) The more natural interpretation is also a better fit with the scheme of the FOIA.
+Under section 62(1), a record becomes a historical record at the end of 30 years.
+Under section 63(1), information contained in a historical record cannot be exempt information by virtue of section 32.
+The natural inference is that information falling within section 32 would continue to be exempt for 30 years rather than cease to be exempt at the conclusion of an inquiry. (Lord Mance at [29 30], Lord Toulson at [104]) The relevance of Article 10 of the Convention The effect of section 32 is to take information falling within the absolute exemption outside the scope of the FOIA disclosure regime.
+The FOIA was never intended to determine whether or not such information should be disclosed.
+Instead, any question as to its disclosure will be governed by other rules of statute and common law.
+If the law otherwise entitles Mr Kennedy to disclosure or puts him in a position no less favourable regarding disclosure than that which could be provided under article 10, then there can be no basis for reading down section 32 or concluding it is inconsistent with article 10. (Lord Mance at [6 8, 35 42], Lord Toulson at [106]) Disclosure outside the FOIA In Lord Mances opinion, the Charity Commission has the power to disclose information to the public concerning inquiries on which it has published reports, both in pursuit of its statutory objective under the Charities Act 1993 (since replaced with the Charities Act 2011) of increasing public trust in, and the accountability of, charities, and under general common law duties of openness and transparency on public authorities.
+The exercise of that power will be subject to judicial review.
+Given the importance of the principles of openness and transparency, courts will apply a very high standard of review to any decision not to disclose information in answer to questions of real public interest raised by a journalist in relation to inquiries on which the Charity Commission has published reports, and would take into account similar factors and provide a no less favourable standard of protection for a person seeking information, as any review under article 10 of the Convention. [43 56] In Lord Toulsons opinion, open justice is a fundamental principle of common law.
+Judicial processes should be open to public scrutiny, unless and to the extent, that there are good reasons for secrecy.
+Letting in the light, is the best way of keeping those exercising the judicial power of the state, up to the mark and for maintaining public confidence.
+These underlying considerations apply also to any quasi judicial inquiries and hearings, such as an inquiry conducted by the Charity Commission, though the application of such principles will vary according to context.
+In conducting any judicial review of a decision not to disclose information, the High Court should exercise its own judgment on whether the open justice principle requires disclosure. [109 132] The scope of the right to receive information under article 10 Had it been necessary for the resolution of the appeal, the Supreme Court would have concluded that article 10 did not contain a freestanding right to receive information from public authorities.
+The recent developments in the case law of the European Court of Human Rights relied on by Mr Kennedy were not sufficient to justify a departure from the principle clearly established in a series of Grand Chamber decisions on article 10. (Lord Mance at [57 100]) Dissenting judgments Lord Wilson [160 201] and Lord Carnwath [202 248] would have allowed the appeal on the basis that Mr Kennedy had a right to receive the requested information under article 10 of the Convention.
+Lord Wilson and Lord Carnwath would read down s 32(2) such that the absolute exemption expired at the end of the relevant inquiry.
+This would preserve the FOIA as the mechanism for obtaining information, which they considered would offer a number of advantages to a person seeking information compared with a judicial review procedure.
diff --git a/UK-Abs/train-data/summary/uksc-2012-0129.txt b/UK-Abs/train-data/summary/uksc-2012-0129.txt
new file mode 100644
index 0000000000000000000000000000000000000000..8ea4ea3bcafb9d3f6f4ec41ccdba474f760cadca
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2012-0129.txt
@@ -0,0 +1,44 @@
+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].
diff --git a/UK-Abs/train-data/summary/uksc-2012-0160.txt b/UK-Abs/train-data/summary/uksc-2012-0160.txt
new file mode 100644
index 0000000000000000000000000000000000000000..47a777a165be684e415b116d3fb7cf677250c5b0
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2012-0160.txt
@@ -0,0 +1,42 @@
+The appellants in these two appeals are prisoners serving sentences of life imprisonment imposed for murder, combined in the case of McGeogh with a later sentence of seven and a half years for violent escape from lawful custody.
+Both the appellants claim that their rights have been and are being infringed because they are not entitled to vote.
+United Kingdom law currently contains a general prohibition on voting by prisoners.
+In a series of cases (Hirst (No 2) v UK, Greens v UK and Scoppola v Italy) the European Court of Human Rights (ECtHR) has held that a blanket prohibition of this nature is an indiscriminate restriction on a vitally important right and, as such, incompatible with Article 3 of Protocol No 1 (A3P1, the duty to hold free and fair elections) of the European Convention on Human Rights (the Convention) [18 22].
+The appellant Peter Chester issued a claim for judicial review in December 2008 in relation to UK and European Parliamentary elections.
+He relies on A3P1, as incorporated into domestic law by the Human Rights Act (the HRA), and also on European Community or now Union law (EU law).
+The appellant George McGeochs claim for judicial review was issued in February 2011 in relation to local and Scottish Parliamentary elections.
+He relies solely on EU law [1 3].
+Both claims were dismissed by the courts below.
+The High Court and Court of Appeal held in Chesters case that it was not their role to sanction the Government for the delay in implementing the decision in Hirst (No 2) or to advise as to how the Government might implement a voting system that would be compatible with A3P1, and that EU law raised no separate issue.
+The Inner House dismissed McGeoghs claim on the ground that EU law only conferred a right to vote in municipal (i.e. local) elections on EU citizens residing in a Member State of which they were not nationals.
+The Supreme Court permitted McGeoch to add a complaint that his rights in relation to EU Parliamentary elections were also being infringed [2 3].
+The issues before the Supreme Court are: (a) whether it should apply the principles established in Hirst (No 2);(b) whether, if such principles are applied, the current ban on voting is incompatible with Chesters rights under A3P1, and Supreme Court should make a further declaration of incompatibility under the HRA; (c) whether EU law recognises an individual right to vote, in terms paralleling or greater than that arising under A3P1, on which the appellants can rely upon as EU citizens claiming to vote in their own countries; and (d) what consequences would follow if EU law were to recognise an individual right to vote of this nature and, in particular, what if any relief would be available to Chester and McGeogh.
+The Supreme Court unanimously dismisses both appeals.
+Lord Mance gives the lead judgment.
+Lady Hale, Lord Clarke and Lord Sumption give additional judgments.
+With regard to claims under the Convention, the Supreme Court applies the principles in Hirst (No 2) and Scoppola regarding the blanket ban on voting, but declines to make any further declaration of incompatibility in respect of Chester [39 42].
+With regard to EU law, this does not provide an individual right to vote paralleling
+that recognised by the ECtHR in its case law.
+The resolution of these appeals does not require a reference to the Court of Justice of the European Union (CJEU) [46 47, 58, 59, 63 64 and 68].
+Claims under the Human Rights Act Under the HRA, the Supreme Court is required to take into account decisions of the ECtHR, not necessarily to follow them.
+This enables the national courts to engage in a constructive dialogue with the ECtHR.
+However, the prohibition on prisoner voting in the UK has now been considered by the Grand Chamber of the ECtHR twice and, on each occasion, found to be incompatible with A3P1.
+In these circumstances, it would have to involve some truly fundamental principle of law or the most egregious oversight or misunderstanding before it could be appropriate for the Supreme Court to refuse to follow Grand Chamber decisions of the ECtHR.
+The ban on prisoner voting is not a fundamental principle of law in the UK, and the circumstances do not justify a departure from the ECtHRs caselaw [25 35].
+Accepting that, on the reasoning in Hirst (No 2), Chester was a victim for the purposes of the HRA and the Convention and entitled as such to bring a claim against the respondents, that does not necessarily entitle him to any particular remedy under the HRA.
+A declaration of incompatibility is a discretionary remedy.
+The incompatibility of the prohibition on prisoner voting in the UK with the Convention is already the subject of a declaration of incompatibility made in Smith v Scott and is currently under review by Parliament.
+In these circumstances there is no point in making a further declaration of incompatibility.
+This is particularly so in the case of Chester.
+Given that he is serving a sentence of life imprisonment, ECtHR caselaw indicates that he would not himself have a right to benefit from any amendments to the law on prisoner voting necessary to remedy the present incompatibility of UK law with the Convention [36 42].
+That is so although his tariff period has expired and he remains in detention because his detention continues to be necessary for the protection of the public.
+Claims under EU law The provisions on voting contained in the applicable European Treaties focus on the core concerns of ensuring equal treatment between EU citizens residing in Member States other than that of their nationality, and so safeguarding freedom of movement within the EU.
+Eligibility to vote in Member States is basically a matter for national legislatures [58 59].
+The CJEU has scrutinised national eligibility criteria for conformity with the EU legal principle of non discrimination in a context where Netherlands law extended the right to vote of its nationals to nationals resident in some, but not all, non EU States.
+But there is no equivalent link with EU law in the present cases [60 64].
+Additional EU analysis For completeness, the Supreme Court has considered the consequences if, contrary to their conclusions, EU law were to regarded as conferring an individual right to vote on which McGeoch and Chester could rely.
+On that hypothesis, it considers that: The EU legal principle of non discrimination would still not be engaged.
+Convicted prisoners serving their sentence are not in a comparable position to persons not in prison [65 68] In any event, the general ban on prisoner voting could not have been disapplied as a whole, and the relevant domestic legislation could not have been interpreted compatibly with EU law.
+Nor could the Supreme Court itself have devised a scheme compatible with EU law; that would be for Parliament.
+Therefore, the only relief that might have been appropriate would have been a declaration that the legislative provisions governing eligibility to vote in European Parliamentary and municipal elections in the UK were inconsistent with EU law, although even that would not have appeared appropriate in the instant cases [72 74].
+Neither of the appellants could have had any arguable claim for damages in respect of any breach of EU law [82 83].
diff --git a/UK-Abs/train-data/summary/uksc-2012-0175.txt b/UK-Abs/train-data/summary/uksc-2012-0175.txt
new file mode 100644
index 0000000000000000000000000000000000000000..b30636e479a66907e13ae60015244cd4d02e5065
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2012-0175.txt
@@ -0,0 +1,46 @@
+Mr Nunn was convicted in November 2006 of killing his girlfriend following the end of their relationship.
+Her body was found by a river two days after that end, having been subjected to various indignities and abuses.
+Evidence was given at trial that he had rowed noisily with her on the night she disappeared, and had been seen carrying what appeared to be a body out of her house.
+Small traces of sperm were found on her inner thigh and pubic area.
+Mr Nunn consistently asserted his innocence before, during, and following his trial.
+He pointed to the sperm presence as indicating another killer, since he had had a vasectomy.
+Following his conviction Mr Nunn sought to appeal, which was refused.
+In January 2008 Mr Nunn began to make written applications to the police for supply of all of their records of the investigation into his case.
+By February 2010 he had instructed fresh solicitors, who made further applications to the police on his behalf.
+They initially sought the investigation records and requested fresh enquiries to be made into Mr Nunns girlfriends finances.
+Some research was undertaken, and the CPS responded saying that the deceased had not been living beyond her means.
+A number of other requests followed, including a request for notes of the forensic scientists working on the case, and various items of evidence.
+The police formally replied, stating that their only obligation was to disclose material which might cast doubt on the safety of the conviction.
+Mr Nunn judicially reviewed that decision, arguing that the police were required to provide, after conviction, the same disclosure as is required of them pending trial and appeal.
+The Divisional Court rejected that application.
+Mr Nunn appealed to the Supreme Court, arguing that there is an enforceable common law disclosure obligation requiring the police to provide, in his case, at least: (i) Access to the working papers of the forensic scientists who advised the Crown and/or gave evidence, and (ii) Requests for re testing or first testing of various items of evidence recovered in the course of the investigation.
+The Supreme Court unanimously dismisses the appeal.
+Lord Hughes gives the only reasoned judgment, with which the other members of the Court agree.
+The common law duty of disclosure exists in addition to the statutory duty of trial disclosure created by the Criminal Procedure and Investigations Act 1996 (CPIA 1996).
+The basis of the common law duty is fairness, and what fairness requires varies depending on the stage reached by the proceedings.
+There is no basis for the submission that the full trial duty of disclosure and investigation continues indefinitely: this would be contrary to the public interest in finality and to the need for finite police resources to be appropriately applied.
+The extent of the common law duty post appeal is correctly stated in the Attorney Generals guidelines: any material coming to light that might cast doubt on the safety of the conviction
+should be disclosed.
+However, the Criminal Cases Review Commission can, in appropriate cases, make enquiry to see whether a reasonable prospect of a conviction being quashed can be demonstrated, which includes a power to direct new scientific tests and similar.
+Moreover, the police and prosecutors can choose to accede to representations for further enquiry made on behalf of convicted persons, and should exercise sensible judgment in relation to such representations.
+The Crowns duty of disclosure and inspection was formulated by the common law in the second half of the twentieth century, mirroring parallel developments in other common law jurisdictions.
+A general duty was formulated to disclose any evidence reasonably thought capable of assisting a defendant [16].
+Inspection would generally go with disclosure, though there were additional considerations in this sphere [17].
+The CPIA 1996 put the duty of disclosure on a statutory footing, displacing the common law duties within its sphere of operation, and applying to any material which might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused.
+That statutory duty is temporally limited: for Crown Court cases, it applies between the arrival of the case in the Crown Court to the end of the trial [18 20].
+Thus it does not apply to Mr Nunn.
+The basis of the common law duty of disclosure is fairness.
+However, fairness does not require the same level of disclosure at every stage of the process [22].
+Before committal, the duty is limited to evidence that might be relevant at that stage [23].
+Similarly, pending sentence, the duty is only to disclose material relevant to sentence [24] and, pending appeal, to disclose material relevant to the appeal [25].
+That conclusion is consistent with the approach reached in other common law jurisdictions: New Zealand, Canada and America [26 28].
+Therefore there is no basis for finding a temporally limitless duty of disclosure post conviction identical to that subsisting during trial [29].
+During trial, the defendant is presumed innocent: post conviction he/she is proved guilty.
+There is an important public interest in exposing any flaw in the conviction, but there is also a powerful public interest in finality of proceedings [32], and in ensuring that the polices finite resources are applied to current investigations, unless there is a good reason for review [33].
+The remaining question was what the post conviction duty of disclosure does entail [34].
+Clearly, if the police or prosecution come into possession of evidence affording arguable grounds for contending that the conviction was unsafe, it is their duty to disclose it to the convicted defendant [35].
+This was the limit of the duty of disclosure [38].
+There are however additional safety nets: o The CCRC has a power to review any conviction and refer a conviction it considers unsafe to the Court of Appeal.
+It has extensive investigative powers including powers to require production of evidence held by public bodies, to appoint investigators, and to assemble fresh evidence [20].
+Its powers include making enquiries to see whether a prospect of a reasonable conviction can be shown, which includes a power to direct new scientific tests [39]. o It is always open to police and prosecutors to accede to representations made on behalf of convicted persons.
+Police and prosecutors should exercise sensible judgment when such representations are made and, if there appears to be a real prospect that further enquiry will uncover something of real value, there should be co operation in making those further enquiries [41].
diff --git a/UK-Abs/train-data/summary/uksc-2012-0177.txt b/UK-Abs/train-data/summary/uksc-2012-0177.txt
new file mode 100644
index 0000000000000000000000000000000000000000..b54d9ce287055d03dcb73f549bfcdfbeb6c00667
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2012-0177.txt
@@ -0,0 +1,41 @@
+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 dependent 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].
diff --git a/UK-Abs/train-data/summary/uksc-2012-0198.txt b/UK-Abs/train-data/summary/uksc-2012-0198.txt
new file mode 100644
index 0000000000000000000000000000000000000000..c0767b4a393f74a17a2367629e7d743a557e87cc
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2012-0198.txt
@@ -0,0 +1,58 @@
+Ahava was a shop in Covent Garden, London, which mainly sold beauty products processed from Dead Sea mineral materials.
+The products were factory produced by an Israeli company, in an Israeli settlement located in the West Bank and therefore within the Occupied Palestinian Territory (OPT).
+It was said that the factory was staffed by Israeli citizens encouraged by the Government of Israel to settle there.
+Mr Richardson and Ms Wilkinson (the Defendants) sought to disrupt the activities of Ahava.
+On 2 October 2010 they entered the shop (together with other helpers) carrying a concrete tube.
+They connected their arms through the tube anchored by a chain, secured by a padlock to which they claimed to have no key.
+They were asked to leave the shop by an Ahava employee, but failed to do so.
+The employee called the police and, after some time, closed the shop.
+Tools were used to release the Defendants from the tube.
+On their release, they were arrested for aggravated trespass contrary to section 68 Criminal Justice and Public Order Act 1994 (the 1994 Act).
+That offence criminalises the conduct of a person A who (i) trespasses on land, (ii) where there is a person or persons B lawfully on the land who is engaged in or about to engage in a lawful activity, (iii) and A does an act on the land, (iv) intended by A to intimidate all or some Bs from engaging in that activity, or to obstruct or disrupt that activity.
+In the magistrates court, the Defendants contested the charge on point (ii).
+They argued that Ahavas activities were not lawful since they involved the commission of one or more of four criminal offences.
+Firstly, they said that Ahava was guilty of aiding and abetting the transfer by Israeli authorities of Israeli citizens to the OPT, a territory under belligerent occupation.
+This was argued to be contrary to Article 49 of the Fourth Geneva Convention 1949, which constituted a war crime.
+Ahavas actions in aiding and abetting the transfer, if true, would constitute an offence under sections 51 52 of the International Criminal Court Act 2001 (the war crimes offence).
+Secondly, they said that since Ahava was aiding and abetting a war crime, Ahava must know or suspect that the products sold in the shop were the products of that offence.
+Ahava was therefore, they argued, guilty of the offence of using or possessing criminal property (the criminal property offence).
+Thirdly, they argued that the products had been imported into the UK purportedly under the EC Israeli Association Agreement, which conferred tax or excise advantages.
+However, since the Court of Justice of the European Union has ruled that products originating in the OPT do not fall under this Agreement, they asserted that Ahava was guilty of the offence of cheating the revenue (the revenue offence).
+Fourthly, they emphasised that the products sold were labelled Made by Dead Sea Laboratories Ltd, Dead Sea, Israel.
+The OPT is not recognised as part of Israel.
+Therefore, they argued, Ahava was guilty of labelling offences under the Consumer Protection from Unfair Trading Regulations 2008 and the Cosmetic Products (Safety) Regulations 2008 (the labelling offences).
+The district judge in the magistrates court convicted the Defendants.
+They appealed, on the grounds above, to the Divisional Court.
+The Divisional Court upheld the conviction, but certified as a matter of general public importance the question whether the words lawful activity in section 68 of the 1994 Act should be limited to acts or events integral to the activities at the premises in question.
+The Supreme Court unanimously dismisses the appeal.
+An activity is unlawful for the purposes of section 68 only if it involves a criminal offence integral to the core activity carried on, not when any criminality is only incidental, collateral to, or remote from the activity.
+Applying that to the facts of this case, none of the offences alleged by the Defendants are integral to Ahavas activities.
+The judgment of the Court is given by Lord Hughes.
+The effect of section 68 of the 1994 Act is to add the sanction of the criminal law to particular acts which already constitute the civil wrong of trespass.
+It is not specifically aimed at individuals wishing to protest, and is to be construed in accordance with the normal rules of statutes creating criminal offences [2 4].
+In order to argue that an activity is not lawful, the Defendant has to show a specific criminal offence against the law of England and Wales, which is properly raised on the evidence before the court.
+Once that evidential burden has been satisfied, the burden of proof lies on the Crown to disprove that offence to the criminal standard [9].
+The Defendants had accepted that a merely collateral offence would not suffice to prove the defence.
+They argued that the activity could be defined as the particular feature of Bs acts against which A was protesting or objecting: if that particular feature was unlawful, this would suffice for section 68.
+This, however, turns the section upside down.
+To apply the section, it is necessary first to consider what Bs lawful activity is, and then to ask whether that is the activity which A intends to disrupt.
+The Defendants argument involves considering As motive, rather than As intent: A intends to disrupt the whole activity [12].
+The true purpose of section 68 is to add the sanction of the criminal law to a trespass where A disrupts an activity that B is entitled to pursue.
+The no lawful activity defence must therefore apply when the criminal offence is integral to the core activity carried on, not merely incidental or collateral to that activity [13].
+However, if a criminal offence integral to the core activity is raised, the court must consider that question even if it involves assessing extraneous facts, or the conduct of third parties [14 15].
+Applying those principles to this case, none of the offences raised by the Defendants are made out.
+The war crimes offence: The only evidence raised by the Defendants was that a different company (the manufacturing company) had employed Israeli citizens at a West Bank factory and that the local community, which held a minority shareholding in that manufacturing company, had advertised the settlement to prospective settlers.
+It is very doubtful that the manufacturing companys actions could amount to aiding and abetting the transfer of Israeli citizens to the OPT, but even if it did, this could not amount to an offence by Ahavas retailing arm.
+Moreover, any such assistance is not an integral part of the activity carried out by Ahava, which was retail selling [17].
+The criminal property offence: If, for the reasons above, there is no aiding and abetting of any unlawful movement of population, the products cannot be the products of a criminal offence.
+In any event, the criminal property offence cannot be said to be integral to the activity of selling [18].
+The revenue offence: This is a purely collateral offence.
+Even if proven, the importer is only liable to repay to the Revenue duty which should have been paid [19].
+The labelling offences: These are the principal offences relied on.
+The first Regulation criminalises misleading commercial practices, including labelling.
+However, it is necessary to show that, as a result of the misleading labelling, the average consumer would buy something that he/she otherwise would not have done.
+In this case the district judge had found that a consumer willing to buy Israeli products would be very unlikely not to buy Israeli products because they were produced in the OPT.
+Therefore, the offence could not have been committed [20 22].
+The second Regulation criminalises the supply of cosmetic products which do not state (among other things) the country of origin.
+The aim of this is clearly to protect consumers, and stating that the products derive from the Dead Sea is sufficient: the Regulation is not aimed to reflect disputed questions of territoriality.
+Even if an offence had been shown, it would not have been integral to the sale activity [23].
diff --git a/UK-Abs/train-data/summary/uksc-2012-0208.txt b/UK-Abs/train-data/summary/uksc-2012-0208.txt
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@@ -0,0 +1,41 @@
+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].
diff --git a/UK-Abs/train-data/summary/uksc-2012-0217.txt b/UK-Abs/train-data/summary/uksc-2012-0217.txt
new file mode 100644
index 0000000000000000000000000000000000000000..06664bc0220f3dfadba7bbda6b26ac7af996cc6e
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2012-0217.txt
@@ -0,0 +1,51 @@
+This appeal is about the jurisdiction of the High Court to grant bail.
+In 1973 Martin Corey was sentenced to life imprisonment for murdering two police officers.
+The respondent, the Secretary of State for Northern Ireland, released him on licence in 1992.
+The Secretary of State referred Mr Coreys case to the parole commissioners on 13 April 2010 to ask whether his licence should be revoked.
+The next day a single parole commissioner recommended that it should be.
+That recommendation was based on material the Secretary of State supplied, including confidential information from the security services.
+The Secretary of State accordingly revoked Mr Corys licence on 15 April 2010.
+Mr Corey was taken into custody the next day and has been in prison since then.
+Mr Coreys case was then referred, as required, to the commissioners.
+The Secretary of State provided information including a gist of material he had certified as confidential.
+The single commissioner who initially considered the case read these and the confidential material itself.
+In accordance with her recommendation, a full panel of commissioners considered Mr Coreys case at a closed hearing on 25 January 2011.
+His interests were represented by a special advocate, who, like the panel, was entitled to see a statement of all open and closed material relevant to the case, including anything undermining the Secretary of State's case.
+Mr Cory and his own legal representatives were allowed to see a similar statement in respect of the open material, but not of the closed material.
+On 15 August 2011 the panel gave both closed and open judgments.
+In the open judgment, they stated that Mr Corey had become involved in the Continuity Irish Republican Army from early 2005 and was in a position of leadership in it from 2008 until his recall to prison.
+Since the panel were satisfied that Mr Corey posed a risk of serious harm to the public, they were required to refuse to direct his release.
+Mr Cory sought judicial review of the commissioners decision on the grounds (among others) (1) that the gist disclosed inadequate information and (2) that the refusal to direct his release had been based solely or to a decisive degree on the closed material and so breached article 5(4) of the European Convention on Human Rights.
+Article 5(4) provides, Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
+Mr Justice Treacy held on 9 July 2012 that the commissioners decision was indeed based solely or decisively on the closed material.
+He further found that the allegations in the open material were not specific enough to allow Mr Corey, through his lawyers and the special advocate, to refute them.
+The commissioners hearing therefore breached his right to procedural fairness under article 5(4).
+Instead of quashing the commissioners decision, however, Mr Justice Treacy directed them to reconsider the case in accordance with his ruling.
+He also gave Mr Corey bail pending their decision, since his detention would be in the meantime unlawful.
+The Secretary of State immediately applied for a stay of that order and appealed it.
+On 11 July 2012 the Court of Appeal decided that the judge did not have power to grant bail, and so stayed that grant.
+This Court granted Mr Corey permission to appeal on the bail issue.
+Meanwhile, the Court of Appeal allowed the Secretary of States appeal on the article 5(4) issue, which had been heard separately.
+The Court of Appeal concluded that the material which had been provided allowed Mr Corey to instruct his advisers effectively, and so article 5(4) was complied with.
+This Court refused Mr Corey permission to appeal on that issue.
+Whether the High Court could grant him bail is therefore academic, but important enough that this Court allowed the appeal to proceed on that issue.
+The Supreme Court unanimously dismisses Mr Coreys appeal.
+Lord Kerr, with whom the other Justices agree, concludes that the High Court in Northern Ireland has an inherent jurisdiction to grant bail [1819], provided certain conditions are met.
+The question is whether those conditions are met in this case.
+They are that it is (a) necessary for the effective disposal of Mr Coreys claim and (b) not contrary to the purpose or spirit of the legislation in question that the court should have power to order his release pending reconsideration of his case by the commissioners [2122].
+The judges order that the review of Mr Coreys detention had not been conducted lawfully and that it should be reconsidered was, on its own terms, a full vindication of the right which the appellant had asserted.
+On that ground alone, the judge did not have power to order Mr Coreys release [27].
+It is important to bear in mind that in the present case the lawfulness of Mr Coreys detention on foot of his recall to prison was not directly in issue.
+The focus of his challenge was to the commissioners failure to direct his immediate release and the manner in which their determination was made [25].
+In any event, an inherent jurisdiction to order release in the circumstances of this case would run directly counter to the operation of the legislation in question in this case: the Life Sentences (Northern Ireland) Order 2001.
+One of the principal philosophies underlying the Order is expressed in article 6(4) which provides that the commissioners shall not direct a prisoners release unless satisfied that his confinement is no longer necessary to protect the public from serious harm.
+And article 3(2) requires that the commissioners have expertise from a variety of fields: one must hold or have held judicial office; one must be a psychiatrist; one must be a chartered psychologist; one must have experience of working with victims of crime; and must have expertise in the causes of delinquency or the treatment of offenders.
+This requirement reflects the need to have available a range of specialists who can contribute to what must often be a difficult debate as to whether the rigorous test set out in article 6(4) is satisfied.
+Put simply, the legislature has placed in the hands of a panel of experts the difficult decision as to when a life sentence prisoner should be released.
+Their role should not be supplanted by a judge who does not have access to the range of information and skills available to the commissioners [3133].
+Lord Kerr notes in passing the European Court of Human Rights recent judgment in James v United Kingdom (2012) 56 EHRR 399, which appeared to suggest that, if a prisoner has not had a chance to take the steps necessary to meet the conditions for release, his detention would breach article 5(1) of the European Convention during those periods.
+Article 5(1) allows states to imprison people only when justified by law, and requires prisoners not lawfully detained to be released.
+Since it is unnecessary to decide the question in this case, Lord Kerr would defer decision on it until necessary.
+Lord Mance, with whom the remaining Justices agree, suggests that James should be interpreted as arising only from a secondary obligation, implied by article 5(1), to progress prisoners through the prison system.
+Such a breach would not require a prisoner to be released, but would entitle him to damages.
+These observations do not form part of the reasoning on which the judgment in this case was based.
diff --git a/UK-Abs/train-data/summary/uksc-2012-0263.txt b/UK-Abs/train-data/summary/uksc-2012-0263.txt
new file mode 100644
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@@ -0,0 +1,41 @@
+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].
diff --git a/UK-Abs/train-data/summary/uksc-2012-0272.txt b/UK-Abs/train-data/summary/uksc-2012-0272.txt
new file mode 100644
index 0000000000000000000000000000000000000000..0a514f46e48a1c51a2b0f1e77282b60f6211baae
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+++ b/UK-Abs/train-data/summary/uksc-2012-0272.txt
@@ -0,0 +1,41 @@
+This appeal concerns the circumstances in which an asylum seeker should be sent back to the country where he or she first claimed asylum if it is claimed that such a return would expose the asylum seeker to the risk of inhuman or degrading treatment, which is forbidden by article 3 of the European Convention on Human Rights (ECHR).
+At this stage the appellants account of the risk that they face must be assumed to be true.
+They are an Iranian national (EH) and three Eritrean nationals (EM, AE, and MA) who have come to the United Kingdom via Italy.
+In each of their cases Italy is the country responsible for processing their asylum applications according to the relevant EU law, Council Regulation 343/2003 (commonly known as Dublin II).
+The basis of EHs asylum claim is that he was tortured as a political prisoner in Iran.
+He is now severely psychologically disturbed and needs treatment.
+He claims that if he were returned to Italy he would be homeless and without treatment.
+EM, AE, and MA were left homeless and destitute in Italy.
+AE and MA, who are women, claim that they were repeatedly raped there, despite having been recognised as refugees.
+MA has come to the UK with two of her children; a third was separated from the family during the attempt to make it here and has not been found.
+AEs experiences have traumatised her, and she is suicidal at the thought of being taken back to Italy.
+Italy is one of a list of countries which is presumed by the United Kingdom to be safe for returning asylum seekers.
+The Home Secretary therefore must be satisfied that the appellants claims that they will be subject to degrading and inhuman treatment are not clearly unfounded if they are to be allowed to stay in the United Kingdom while they pursue their asylum applications.
+That is important to the appellants because of the threats to their well being if they were returned to Italy.
+The Home Secretary certified all of the appellants claims as clearly unfounded because Italy was not in systemic breach of its international obligations to treat asylum seekers with dignity.
+The Court of Appeal considered that a systemic breach, rather than merely a breach, of those obligations was indeed required before the United Kingdom could decline to return an asylum seeker to Italy.
+The Court of Appeal reached that conclusion on the basis of a decision of the Court of Justice of the European Union (CJEU), NS (Afghanistan) v Secretary of State for the Home Department.
+The CJEU is responsible for interpreting EU law, including Dublin II.
+However, the Court of Appeal read the decisions of the European Court of Human Rights (ECtHR) as requiring only a breach, rather than a systemic breach, of a persons human rights.
+The ECtHR is responsible for interpreting the ECHR, and belongs to a separate legal system established by the Council of Europe.
+By virtue of legislation in the UK, decisions of the CJEU are binding on UK courts, while decisions of the ECtHR need only be taken into account.
+The Court of Appeal therefore felt bound to apply the CJEU case, as it understood it, over the ECtHR cases.
+Since it held that Italy was not in systemic breach of its duties, it found for the Home Secretary.
+The Supreme Court unanimously allows the asylum seekers appeals and remits all four cases to the administrative court to determine on the facts whether in each case it is established that there is a real possibility that, if returned to Italy, the claimant would be subject to treatment in violation of the Convention.
+The Court of Appeal was wrong to consider that only a systemic breach by the receiving country of its human rights obligations would justify not returning an asylum seeker to that country.
+The CJEUs judgment in NS had to be read according to the context in which it was given.
+While it did refer to a systemic breach, such a breach was well established on the cases facts.
+The CJEUs focus was therefore not on the sort of breach that had to be established, but rather on EU member states awareness of such a breach.
+There was therefore no warrant for concluding that CJEUs judgment was that there had to be a systemic breach; it only meant that a systemic breach would be enough.
+The CJEU was not calling into question the well established test applied in human rights law, which is that the removal of a person from a member state of the Council of Europe to another country is forbidden, if it is shown that there is a real risk that the person transferred will suffer treatment contrary to article 3 of the ECHR [5658].
+Indeed, the EU requires its laws to be interpreted in accordance with fundamental rights, such as those guaranteed by the ECHR.
+And beyond that it is clear that the EU scheme of asylum law in general is to be applied in a way that respects the dignity of asylum seekers, and ensures a basic minimum standard of support.
+Council Directive 2003/9/EC (commonly known as the Reception Directive) requires that member states provide asylum seekers with at least enough to sustain their health and ability to subsist.
+And under Council Directive 2004/83/EC (the Qualification Directive), those granted refugee status are not to be discriminated against in terms of access to welfare support, accommodation, and so on [59 60].
+These duties coalesce with the positive obligations on members of the Council of Europe who are also member states of the European Union.
+Article 4 of the EU Charter of Fundamental Rights contains a human rights protection in equivalent language to article 3 of ECHR.
+The UK, as an EU member state, is obliged to observe and promote the application of the Charter whenever implementing an instrument of EU law.
+There was no dispute before this Court that the positive obligations under article 3 of ECHR include the duty to protect asylum seekers from deliberate harm by being exposed to living conditions (for which the state bears responsibility) which cause ill treatment.
+And in R (Limbuela) v Secretary of State for the Home Department the House of Lords held that article 3 ECHR could be engaged where asylum seekers were by the deliberate action of the state, denied shelter, food or the most basic necessities of life [62].
+Where, therefore, it can be shown that the conditions in which an asylum seeker will be required to live if returned under Dublin II are such that there is a real risk that he will be subjected to inhuman or degrading treatment, his or her removal to that state is forbidden.
+The evidence about breaches of a positive obligation is more likely to concern systemic failings, but a focus on such failings is only by way of establishing that there is a real risk of a breach of article 3, rather than a distinct hurdle to be surmounted [63].
diff --git a/UK-Abs/train-data/summary/uksc-2012-0279.txt b/UK-Abs/train-data/summary/uksc-2012-0279.txt
new file mode 100644
index 0000000000000000000000000000000000000000..9e8a3e6d1d7e1a3fe91466a575e794ddee592292
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2012-0279.txt
@@ -0,0 +1,35 @@
+The question raised on this appeal is whether a person released from prison on a home detention curfew, and then recalled to prison under section 255 of the Criminal Justice Act 2003, has rights pursuant to article 5(4) of the European Convention of Human Rights.
+Article 5 protects the right to liberty, and article 5(4) confers on an individual who has been deprived of their liberty an associated right to challenge that deprivation before a judicial body.
+On 5 October 2010, the appellant, Stuart Whiston, was sentenced to 18 months in prison for robbery.
+He was entitled to automatic release on licence after serving half his sentence on 5 July 2011.
+However, on 21 February 2011, he was released on licence under a so called home detention curfew pursuant to section 246 of the 2003 Act.
+On 7 April 2011, the Secretary of State decided to revoke the licence under section 255 of the 2003 Act, because the appellants whereabouts could no longer be monitored in the community, and he was recalled to prison.
+The decision of the Secretary of State was not subject to any statutory judicial control or review.
+The appellant contends that, as a result of the licence granted on 21 February 2011, he regained his liberty, and the subsequent revocation of his licence and his consequent recall to prison on 7 April 2011 therefore constituted a deprivation of his liberty which infringed article 5(4).
+The Secretary of State argues that, at least where the sentence in question is determinate, in any case where a prisoner who has been released on licence is recalled to prison during the currency of his requisite custodial period, the requirements of article 5(4) are satisfied by the original sentence lawfully passed by the court by which he was originally imprisoned.
+The Supreme Court unanimously dismisses the appeal.
+Lord Neuberger, with whom Lord Kerr, Lord Carnwath and Lord Hughes agree, gives the main judgment.
+Lady Hale gives a concurring judgment.
+Under Strasbourg jurisprudence, where a person is lawfully sentenced to a determinate term of imprisonment by a competent court, he is not, at least in the absence of unusual circumstances, able to challenge his loss of liberty during that term on the ground that it infringes article 5(4).
+Where the Secretary of State exercises her discretion to release a prisoner before the end of the requisite custodial period of their sentence, article 5(4) is not infringed if that licence is subsequently revoked.
+All the statutory provisions relevant to this appeal are in the 2003 Act, as amended most recently by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
+Where a person has been convicted and given a determinate prison sentence of twelve months or more (a sentence period), section 244(1) provides that, subject to certain specified exceptions, once he has served half his sentence it is the duty of the Secretary of State to release him on licence.
+A prisoner may also be released on licence during the requisite custodial period under section 246(1).
+A licence, whether under section 244 or 246, remains in place until the end of the sentence period, unless the licence is revoked and the person subject to the licence (the licensee) is recalled.
+The Secretary of State has the power to revoke a licence and recall a licensee back to prison pursuant to two different statutory provisions [3 8].
+First, section 254(1) of the 2003 Act gives the Secretary of State a general power to revoke any licence and to recall the licensee to prison.
+Where the power of revocation is exercised under section 254(1), the licensee is entitled to be told the reasons for his recall and to make representations to the Secretary of State, and, ultimately, to the Parole Board.
+Secondly, section 255(1) confers a specific power on the Secretary of State to revoke a section 246 licence.
+This power of recall can only be exercised until the end of the requisite custodial period, when the licensee would have been entitled to be let out on licence as of right.
+Unlike the position in relation to the section 254 power of recall, there is no provision for review by the Parole Board of the exercise of the Secretary of States section 255 power of recall [9 10].
+Under Strasbourg jurisprudence, where a person is lawfully sentenced to a determinate term of imprisonment by a competent court, there is (at least in the absence of unusual circumstances) no question of his being able to challenge his loss of liberty during that term on the ground that it infringes article 5(4).
+This is because, for the duration of the sentence period, the lawfulness of his detention has been decidedby a court, namely the court which sentenced him to the term of imprisonment [38].
+On this approach, article 5(4) could not normally be invoked in a case where, in relation to those serving determinate terms, domestic discretionary early release provisions are operated by the executive.
+The notion that article 5(4) is satisfied by the original sentence appears entirely principled, and the consequence that a person under such a regime has to rely on his domestic remedies, at least unless other Convention rights are engaged, is not unreasonable in practice [40].
+The common law should be well able to afford appropriate protection to the rights of people in the position of Mr Whiston without recourse to the Convention [45].
+Consequently, in so far as it held that article 5(4) was engaged by the revocation of a mandatory licence, the House of Lords in Smith and West [2005] 1 WLR 350 were incorrect and the observations of Lord Brown in R (Black) v Secretary of State for Justice [2009] 1 AC 949 are wrong in so far as they suggest that the law of the United Kingdom in relation to article 5(4) differs from the Strasbourg jurisprudence [46].
+Lady Hale agrees that the revocation of a discretionary licence does not infringe article 5(4).
+However, Lady Hale holds that the present law draws a principled distinction between those determinate prisoners who have reached the point in their sentence at which they are entitled to be released on licence and those who have not.
+If the former are recalled from their licence, and their representations to the Secretary of State are unsuccessful, they are entitled to have their case referred to the Parole Board.
+The latter, whose release on licence are discretionary, are not [50].
+Once a prisoner has passed the point of mandatory release on licence, the basis for any later recall and detention is the risk of reoffending rather than the original order of the court, and, therefore, article 5(4) applies [52].
diff --git a/UK-Abs/train-data/summary/uksc-2013-0052.txt b/UK-Abs/train-data/summary/uksc-2013-0052.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e8bd3c66e20be1bc64054b74368f76b6da849cf6
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2013-0052.txt
@@ -0,0 +1,38 @@
+In 2006, AIB Group (UK) plc (the Bank) agreed to lend Mr and Mrs Sondhi 3.3m to be secured by a first legal charge over their home, valued at 4.25m.
+This was on the condition that the existing first legal charge in favour of Barclays Bank plc (Barclays) (borrowings on Barclays accounts amounting to 1.5m) was to be redeemed on or before completion of the Banks mortgage advance.
+Mark Redler & Co Solicitors (the Solicitors), also acting for Mr and Mrs Sondhi, were instructed on this basis and retained to act on the Banks behalf.
+Having requested the Bank to forward the funds because completion was imminent, the Solicitors: (i) remitted to Barclays an amount they thought was the total necessary to redeem the Barclays mortgage; and (ii) remitted the balance of the 3.3m less expenses to Mr and Mrs Sondhi.
+In fact, the Solicitors mistakenly remitted to Barclays an amount which was approximately 300,000 less than was necessary to redeem the Barclays mortgage.
+As a result, the Bank did not obtain a fully enforceable first charge over the property.
+When the Bank found out about this, there were negotiations between the Bank and Barclays.
+As a consequence, the Bank executed a deed of postponement acknowledging the primacy of Barclays charge and Barclays consented to the registration of the Banks charge as a second charge.
+Subsequently, Mr and Mrs Sondhi defaulted and their property was repossessed and sold by Barclays in February 2011 for 1.2m.
+The Bank received 867,697, approximately 300,000 less than it should have done if the Solicitors had remitted the correct amount to Barclays.
+The Bank brought proceedings against the Solicitors claiming, amongst other things, breach of trust.
+In terms of relief, the Bank argued that it was entitled to recover the full amount of its loan less the 867,697 recovered (approximately 2.5m).
+HHJ Cooke, at first instance, found that although the Solicitors had acted in breach of trust, the Bank could only recover the amount the Solicitors in fact paid to Mr and Mrs Sondhi but which should have been paid to Barclays (approximately 300,000).
+The Court of Appeal agreed with HHJ Cookes decision on the relief to which the Bank was entitled.
+In doing so, it applied what it understood to be the reasoning of Target Holdings Ltd v Redferns [1996] AC 412 (Target Holdings) in relation to equitable principles of compensation.
+The Supreme Court unanimously dismisses the appeal.
+Lord Toulson finds that the Bank is only entitled to the amount by which it suffered loss (approx. 300,000).
+Lord Reed writes a separate judgment coming to the same conclusion and with reasons which are substantially the same.
+Lord Neuberger, Lady Hale and Lord Wilson agree with both Lord Toulson and Lord Reed.
+Having considered the House of Lords judgment in Target Holdings [21] [36], Lord Toulson finds that it would be a backward step to depart from, or re interpret, Lord Browne Wilkinsons fundamental analysis of the principles of equitable compensation in that case [63].
+A monetary award which reflects neither loss caused nor profit gained by the wrongdoer, such as the one argued for by the Bank, would be penal [64].
+Moreover, to argue that the Bank has suffered a loss of 2.5m in this case is to adopt an artificial and unrealistic view of the facts [65].
+Rather, one must look at the rationale of the monetary remedy for breach of trust; given that the beneficiary of a trust is entitled to have it properly administered, he is entitled to recover losses suffered by reason of the breach of duty [66].
+Here, that loss was approximately 300,000 of the Banks loan which it failed to obtain security over.
+In Target Holdings, Lord Browne Wilkinson stated that, [u]ntil the underlying commercial transaction has been completed, the solicitors can be required to restore the client account monies wrongly paid away [72].
+In the current case, although the Solicitors did not complete the transaction in the manner in which it was required, the transaction was, nevertheless, completed as a commercial matter when the loan monies were released to Mr and Mrs Sondhi [74].
+The fact that the Solicitors may also have breached the Solicitors Accounts Rules does not affect the analysis [75].
+Lord Reed undertakes a broader analysis of the relationship between equitable compensation and common law damages.
+He considers, first, the Canadian Supreme Court case of Canson Enterprises Ltd v Boughton & Co (1991) 85 DLR (4th) 129 (Canson Enterprises), focusing mainly on the judgment of McLachlin J [80] [89].
+Lord Reed then considers Target Holdings [96] [116].
+In that case, Lord Browne Wilkinson did not intend to say that equitable compensation is to be assessed in the same way as common law damages [115].
+He was not departing from the orthodox view that where a breach of trust occurs, an equitable obligation arises to restore the trust fund to the position it would have been in but for the breach and that the measure of compensation should be assessed on that basis [116].
+A number of common law jurisdictions have subsequently followed the general approach of McLachlin J in Canson Enterprises and Lord Browne Wilkinson in Target Holdings [121] [133].
+This is that where trust property has been misapplied, the doctrine of equitable compensation requires the trustee to restore the trust fund, or to pay the beneficiary where the trust has ended, to the position it would have been in if the trustee had performed his obligation [134].
+Despite structural similarities when assessing equitable compensation and common law damages, liability of a trustee for breach of trust is not generally the same as liability in damages for tort or breach of contract [136].
+The nature of the obligation breached and the relationship between the parties affect the measure of compensation [137].
+In the present case, the Banks argument is based on three fallacies: (i) it assumes that the Solicitors misapplied the entire 3.3m as opposed to approximately 300,000 (however, the Court of Appeals decision to the contrary was not challenged before the Supreme Court); (ii) it assumes that the measure of the Solicitors liability was fixed at the date of the breach of trust; and, (iii) it assumes that liability does not depend on a causal link between breach of trust and loss. (ii) and (iii) were rightly rejected in Target Holdings [140].
+The Bank should recover its loss, which was approximately 300,000 [141].
diff --git a/UK-Abs/train-data/summary/uksc-2013-0094.txt b/UK-Abs/train-data/summary/uksc-2013-0094.txt
new file mode 100644
index 0000000000000000000000000000000000000000..23d4a3fc475d904429772be44ad27b45f664d7ed
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2013-0094.txt
@@ -0,0 +1,35 @@
+These appeals concern the question whether customs officers have the power to detain goods which they reasonably suspect may be liable to forfeiture.
+In Eastenders, customs officers entered Eastenders premises and inspected consignments of alcoholic goods.
+Eastenders' employees were unable to provide documentary evidence that duty had been paid on the goods.
+The officers decided to detain the goods pending the outcome of further enquiries.
+The Commissioners subsequently stated that the goods had been detained under section 139 of the Customs and Excise Management Act 1979, which empowers customs officers to seize or detain "anything liable to forfeiture under the customs and excise Acts." [3 4] Eastenders applied for judicial review of the decision to detain those goods that were subsequently returned when the officers' enquiries proved inconclusive.
+Mr Justice Sales dismissed the application, holding that, where the Commissioners had reasonable grounds to suspect that goods might be liable to forfeiture, they had the power under section 139(1) to detain them for a reasonable time while they made enquiries.
+The Court of Appeal reversed that decision, holding that section 139(1) applied only where goods were actually liable to forfeiture. [5 7].
+The Commissioners appeal to the Supreme Court.
+In First Stop, customs officers detained alcoholic goods at First Stop's premises, on suspicion that duty had not been paid, while enquiries were made.
+Written notices were provided stating that the goods had been detained "pending evidence of duty status (CEMA 1979, section 139)".
+Most of them were subsequently seized and the remainder returned to First Stop [8].
+First Stop successfully applied for judicial review of the decision to detain the goods.
+Mr Justice Singh held that the detention was unlawful as the reason given for it was the need for investigation.
+The Court of Appeals judgment in Eastenders meant that goods could not lawfully be detained under section 139(1) for that purpose.
+However, the Court of Appeal disagreed with his interpretation, and decided that the effect of Eastenders was that if goods were in fact "liable to forfeiture", detention for a reasonable time was lawful under section 139(1) irrespective of the reason given for it [9 12].
+Mr Justice Singh also held that the Commissioners were not protected from an order for costs by section 144(2) of the 1979 Act (which applies where officers had reasonable grounds for detaining goods) as the reason they gave for detaining the goods was unlawful.
+The Court of Appeal held that this was inconsistent with Eastenders.
+First Stop appeal against both decisions [12].
+In a judgment delivered by Lord Sumption and Lord Reed, the court unanimously allows the Commissioners' appeal in Eastenders, dismisses First Stop's first appeal and allows its second appeal.
+The right to seize or detain property under section 139(1) is dependent on the property actually being liable to forfeiture.
+This turns on objectively ascertained facts; not on beliefs or suspicions, however reasonable.
+This is apparent when one looks at section 139(1) in the context of other provisions in the Act.
+For example, other powers are expressly stated to be exercisable on the basis of suspicion or belief [23], whereas the section 139(1) power is not.
+However, this interpretation would have troubling implications were there no other power to detain goods.
+It is essential in practice that customs officers should be able to secure goods where, following an examination, it is necessary to carry out further enquiries investigations that might lead to their seizure.
+If there were no other power of detention, then detention on the basis of suspicion would be unlawful in all cases where the suspicion turned out to be unfounded, and this would be problematic in terms of compliance with EU law and Convention standards on legal certainty [24].
+In neither case however had it been argued that the power to detain could have a source other than section 139(1).
+But customs officers have long had a statutory power to examine goods in order to determine the duty payable or whether the goods are liable to forfeiture.
+Prior to the enactment in the Customs and Excise Act 1952 of the power to detain goods liable to forfeiture, the courts interpreted customs officers' statutory powers of examination as including, by necessary implication, an authority to detain goods on reasonable suspicion for such time as was reasonably necessary in order to make enquiries allowing officers to make their determination [26 35].
+When enacting the 1952 Act, Parliament did not impliedly abolish that power of detention, which is not conditional upon the goods being liable to forfeiture [37; 52].
+In Eastenders, the officers were entitled to detain the goods for a reasonable period in order to complete their enquiries; they were carrying out a lawful inspection of the goods for the purpose of determining whether the appropriate duties had been paid, and had reasonable grounds to suspect that they had not been [49].
+In First Stop, the officers' examination was not completed until the necessary enquiries had been made, and the power of examination impliedly included an ancillary power of detention for a reasonable time while these enquiries were undertaken [50 51].
+Detention in both cases was therefore lawful.
+The section 144(2) costs protection did not apply as both judicial review applications ought to have been dismissed.
+The parties are invited to make submissions on costs on the basis that the court possessed its ordinary costs discretion [52 55].
diff --git a/UK-Abs/train-data/summary/uksc-2013-0102.txt b/UK-Abs/train-data/summary/uksc-2013-0102.txt
new file mode 100644
index 0000000000000000000000000000000000000000..beba168e440a646d419edeb5e4b544513d378ab3
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2013-0102.txt
@@ -0,0 +1,31 @@
+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].
diff --git a/UK-Abs/train-data/summary/uksc-2013-0116.txt b/UK-Abs/train-data/summary/uksc-2013-0116.txt
new file mode 100644
index 0000000000000000000000000000000000000000..68190928c2aca63a7a4e4469edaffce50850dcd2
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2013-0116.txt
@@ -0,0 +1,36 @@
+Until 1 April 2013 central government operated a Council Tax Benefit (CTB) scheme whereby residents in local authority areas in England were granted relief from paying council tax on a means tested basis, for which the local authorities were reimbursed in full [4].
+For the year 2013 2014, reimbursement to each local authority was fixed at 90% of the sum it had received in the previous year [6] and each local authority was required to devise its own Council Tax Reduction Scheme (CTRS) to provide relief from council tax to those whom it considered to be in financial need [7].
+It was a requirement that each local authority consult interested persons on its CTRS in draft form before deciding on a final scheme: Paragraph 3(1)(c) of Schedule 1A of the Local Government Finance Act 1992 (added by Paragraph 1 of Schedule 4(1) to the Local Government Finance Act 2012) provides that Before making a scheme, the authority must consult such other persons as it considers are likely to have an interest in the operation of the scheme.
+The Respondent published a draft CTRS on 29 August 2012 under which it was proposed that the shortfall in central government funding would be met by a reduction in council tax relief of between 18% and 22% for all CTB claimants in Haringey other than pensioners [9 10].
+The consultation document for Haringey residents explained the reduction in funding, and stated That means that the introduction of a local [CTRS] in Haringey will directly affect the assistance provided to everyone below pensionable age that currently receives [CTB].
+There was no reference to other options for meeting the shortfall, for example by raising council tax, reducing funding to council services or deploying capital reserves [19].
+The consultation document also included a questionnaire asking how the reduction in relief should be distributed as among CTB claimants [21].
+Following the consultation exercise, the Respondent on 17 January 2013 decided to adopt a CTRS under which the level of council tax relief was reduced by 19.8% from 2012 2013 levels for all claimants other than pensioners and the disabled [14].
+The Appellant is a resident of Haringey who until 1 April 2013 had been in receipt of full CTB, and thereafter had to pay 19.8% of full council tax.
+She was not originally a claimant in the judicial review proceedings which were brought by two other similarly circumstanced Haringey residents to challenge the Respondents consultation process.
+Underhill J dismissed their application for judicial review on 7 February 2013.
+One claimant, Ms Stirling, appealed to the Court of Appeal and that appeal was dismissed on 22 February 2013.
+Ms Stirling subsequently became ill and the Appellant was by consent substituted for the purposes of this appeal.
+Ms Stirling has since sadly died [3].
+The Supreme Court unanimously allows the appeal and declares that the consultation exercise was unlawful [31].
+However, it declines to order the Respondent to undertake a fresh consultation exercise because this would be disproportionate in the circumstances [33].
+Lord Wilson (with whom Lord Kerr agrees) gives the main judgment.
+Lord Reed gives a concurring judgment.
+Lady Hale and Lord Clarke agree with both judgments.
+Lord Wilson considers that where a public authority has a duty to consult before taking a decision, whether such duty is generated by statute, as in this case, or arises as a matter of common law, the same common law requirements of procedural fairness will inform the manner in which the consultation should be conducted [23].
+The requirements of a fair consultation are as summarised in the case of R v Brent London Borough Council, ex p Gunning, (1985) 84 LGR 168: First, that consultation must be at a time when proposals are still at a formative stage.
+Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response.
+Third, that adequate time must be given for consideration and response and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals. [25].
+Fairness may require that interested persons be consulted not only upon the preferred option but also upon discarded options [27].
+In this case, fairness demanded that the consultation document should briefly refer to alternative methods of absorbing the shortfall in government funding and to the reasons why the Respondent had concluded that they were unacceptable [29].
+In fact, the purported consultation was premised on the assumption that the shortfall would be met by a reduction in council tax relief and no other option was presented [17, 18, 21].
+Neither was it reasonably obvious to those consulted what other options there may have been and the reasons why such options had been discarded.
+Indeed, only an infinitesimal number of responses to the consultation (approximately 20 out of 1287 responses) alluded to other ways of meeting the shortfall.
+Therefore, the consultation exercise was unfair and unlawful [31].
+However, it was not unlawful that the Respondent had failed to consult on the possible adoption of a Transitional Grant Scheme announced by central government only 5 weeks before the completion of the draft CTRS consultation [32].
+Lord Reed allows the appeal for slightly different reasons.
+In cases such as this where the duty to consult is imposed by statute, the scope of the duty varies according to the statutory context [36].
+The purpose of this particular statutory duty was to ensure public participation in the local authoritys decision making process [38]; it was not to ensure procedural fairness as under the common law.
+Meaningful participation in these circumstances required that those consulted be provided with an outline of the realistic alternatives [39].
+In the absence of specific statutory provision, reference to alternative options will be required where this is necessary in order for the consultees to express meaningful views on the proposals [40].
+Lady Hale and Lord Clarke give a brief joint judgment agreeing with both Lord Wilson and Lord Reeds judgments [44].
diff --git a/UK-Abs/train-data/summary/uksc-2013-0146.txt b/UK-Abs/train-data/summary/uksc-2013-0146.txt
new file mode 100644
index 0000000000000000000000000000000000000000..0dd2757206bb4f93e3dbf97a527b90b14bc739cb
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2013-0146.txt
@@ -0,0 +1,19 @@
+In order to trade, sex shops in Westminster need a licence from Westminster City Council (Westminster) under schedule 3 of the Local Government (Miscellaneous Provisions) Act 1982, paragraph 19 of which provides that an applicant for the grant, renewal or transfer of a licenceshall pay a reasonable fee determined by the appropriate authority [1].
+European Union law has placed limits upon the licence fees which can be charged.
+Article 13(2) of Directive 2006/123/EC, given domestic effect by regulation 18(4) of the Provision of Services Regulation 2009 SI No 2999, provides that the authorisation procedures and formalities for applicants shall not be dissuasiveand any charges which the applicants may incur from their application shall be reasonable and proportionate to the cost of the authorisation procedures in question and shall not exceed the cost of the procedures.
+Mr Hemming runs sex shops in the Westminster area under the name Simply Pleasure Ltd. Westminster has over past years required applicants for sex shop licences to pay with their applications a substantial sum (29,435 in 2011/12), broken down into a smaller amount (2,667 in 2011/12) relating to the processing of the application and a larger amount (26,435 in 2011/12) relating to the cost of administering and enforcing the licensing regime as a whole.
+The larger amount was refundable whenever an application failed [2].
+Mr Hemming claims that this system was illegitimate under domestic and EU law.
+His primary case has been that there is no basis for requiring successful or unsuccessful applicants to meet the costs of administering and enforcing the regime.
+But he has also developed a secondary case, that there was no basis for requiring such costs to be paid with the applications, even on a refundable basis.
+The courts below agreed with Mr Hemmings primary case, holding that such costs had to be funded by an authority such as Westminster out of its general rates or other funds [4].
+Westminster appeals to the Supreme Court, submitting that: (1) Under domestic law, paragraph 19 is wide enough to cover the fees it charged. (2) Under EU law, article 13(2) and regulation 18(4) are concerned only with charges made in respect of authorisation procedures and their cost.
+The refundable amounts are not a cost of the application but a cost of the application succeeding. (3) Alternatively, if that is wrong, then the authorisation procedures and formalities to which article 13(2) refers can be interpreted widely enough to include all aspects of the licensing scheme, including the costs of enforcing the scheme against unlicensed operators, so that the
+total sum required to be paid with applications can be regarded as a cost of such procedures and formalities.
+The Supreme Court, Lord Mance giving its unanimous judgment, allows the appeal in part but, on the critical question of whether it was lawful to require payment of the larger refundable amounts with the applications, makes a reference to the Court of Justice in Luxembourg.
+The Court concludes that: (1) Paragraph 19 of schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982 enables a licencing authority to impose on an applicant a fee for the grant or renewal of a licence which covers the running and enforcement costs of the licensing scheme, to be payable either (a) at the time when the licence is granting; or (b) on a refundable basis, at the time when the application is lodged [7]. (2) Article 13(2) of Directive 2006/123/EC deals only with authorisation procedures and fees relating to applications for permission to access or exercise a service activity, such as operating a sex shop.
+It does not prevent the imposition on those who receive licences of proportionate charges to fund the cost of administering and enforcing the licensing regime [15] [17]. (3) As to the legitimacy of Westminsters system, it is helpful to distinguish between two types of scheme.
+Under Type A, applications for licences are made on terms that the applicant must, upon their application being granted, pay a fee to cover the cost of administering and enforcing the licensing regime.
+Under Type B, which represents the scheme actually adopted by Westminster, applications for licences are made on terms that the applicant must, at the time of making the application, pay a fee, refundable in the event that the application fails, to cover the cost of administering and enforcing the licensing regime [18]. (4) Type A schemes are permissible under regulation 18(4) of the Provision of Services Regulation 2009 SI No 2999 and article 13(2) of Directive 2006/123/EC, because they permit a licensing authority to charge a successful applicant with a proportionate part of the cost of administering and enforcing the licensing regime as a whole [19]. (5) Whether article 13(2) also permits Type B schemes is more problematic, because payment is required to be made by every applicant, albeit on a potentially refundable basis, at the time when the application is made.
+There was no evidence that a Type B scheme could or would have a potentially dissuasive effect upon applicants but it remains unclear whether it involves in law a charge incurred from the application, contrary to article 13(2) [20] [24]. (6) A reference to the Court of Justice is therefore required on whether and when a Type B scheme is consistent with article 13(2).
+The parties are invited to make proposals on the wording of the question to be referred [25].
diff --git a/UK-Abs/train-data/summary/uksc-2013-0194.txt b/UK-Abs/train-data/summary/uksc-2013-0194.txt
new file mode 100644
index 0000000000000000000000000000000000000000..55be6ddc5fbc7cf84816ea827f43038a073962c9
--- /dev/null
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@@ -0,0 +1,38 @@
+Local housing authorities have statutory obligations under Part VII of the Housing Act 1996 (the 1996 Act) to provide assistance to people who are homeless in certain circumstances.
+When an application for such assistance is received, the authority will carry out investigations under s.184 of the 1996 Act to ascertain whether the applicant qualifies for local authority housing.
+Under s.188 of the 1996 Act, the authority must provide the applicant with interim accommodation (s.188 accommodation) during the time it takes to carry out these investigations [1].
+The two appellants in this case were children of families provided with s.188 accommodation while their housing applications were considered.
+CNs mother JN was granted a licence to occupy a privately owned property by the London Borough of Lewisham (Lewisham) in November 2011 [2].
+From November 2012, ZH and his mother FI occupied s.188 accommodation, in the form of a flat owned by a private company, under a licence granted by the London Borough of Newham (Newham) [6].
+Both JN and FIs substantive housing applications were refused, at which point the obligation on Lewisham and Newham (the authorities) to provide s.188 accommodation ended and JN and FI were told to vacate the properties; JN in May 2012 [5] and FI in March 2013 [6].
+CN and ZH commenced separate judicial review proceedings challenging these evictions [9].
+They argued that even after the s.188 duty ceased, the authorities could not lawfully evict them from their s.188 accommodation without first giving notice and obtaining a court order.
+They relied on ss.3(1) and 3(2B) of the Protection from Eviction Act 1977 (PEA) which together provide that in relation to any premises occupied as a dwelling under a licence, other than an excluded licence, where the licence has come to an end but the occupier continues to reside in the premises it shall not be lawful for the owner to enforce against the occupier, otherwise than by proceedings in the court, his right to recover possession of the premises.
+Section 5(1A) PEA further provides that no less than four weeks written notice must be given to end a periodic licence to occupy premises as a dwelling, other than an excluded licence [19].
+The excluded licences not protected by ss.3 and 5 are listed at s.3A PEA; the list does not include s.188 accommodation [18].
+The two judicial review claims were given permission in the High Court and transferred to the Court of Appeal, where they were heard together [8].
+On 11 July 2013 the Court of Appeal dismissed the claims [9].
+The Supreme Court dismisses the appeal by a majority of five to two.
+It holds that Newham and Lewisham are entitled to evict the appellants from s.188 accommodation without first obtaining a court order.
+Lord Hodge (with whom Lord Wilson, Lord Clarke and Lord Toulson agree) gives the
+main judgment.
+Lord Carnwath gives a concurring judgment.
+Lord Neuberger and Lady Hale give dissenting judgments.
+Is s.188 accommodation occupied as a dwelling under a licence for the purposes of ss.3 and 5 PEA? Lord Hodge holds that the word dwelling does not have a technical meaning but suggests a greater degree of settled occupation than residence and can be equated with ones home [45].
+It bears the same meaning in PEA as in predecessor legislation (the Rent Acts) [26].
+On an assessment of the legal and factual context, a licence to occupy s.188 accommodation is not granted for the purpose of using the premises as a dwelling.
+First, the statutory context is inconsistent with such a purpose; s.188 imposes a low threshold duty on a local housing authority to provide interim accommodation (not a home or fixed abode) for a short and determinate period only [33].
+Secondly, such a licence is granted on a day to day basis allowing the authority to transfer the applicant to alternative accommodation at short notice [34].
+Thirdly, (although this is not of itself determinative) to hold otherwise would hamper the operation of the 1996 Act by introducing delays for court proceedings to effect evictions from accommodation needed for other homeless applicants [35].
+Further, the absence of an express exclusion in s.3A PEA for s.188 accommodation does not mean that such accommodation falls within s.3 PEA [49].
+Parliament sought confirm excluded tenancies and licences for the avoidance of doubt but did not intend to thereby extend protection to accommodation that would not have classified as a dwelling under the Rent Acts [47].
+Lord Carnwath adds that settled practice may, in appropriate circumstances, be an aid to statutory interpretation [95]; were the issues more finely balanced, the fact that the Court of Appeals statutory interpretation in Mohammed v Manek (1995) 27 HLR 439 has been adopted in departmental guidance would be an additional reason to dismiss the appeal [98].
+In dissenting judgments, Lord Neuberger [128] and Lady Hale [158] hold that in the context of PEA 1977 dwelling has at least as broad a meaning as residence.
+Lord Neuberger considers that Sections 3 and 5 PEA should be accorded a wide rather than a narrow effect as they reflect a policy that people who have been lawfully living in premises should not be summarily evicted [135].
+Premises may be occupied as a dwelling notwithstanding said occupation is short term, provisional or precarious [136].
+This interpretation is supported by the absence of a specific exclusion in s.3A PEA [139].
+Does Article 8 ECHR require the authorities to obtain court orders before carrying out evictions? The parties were in agreement that the appellants Article 8 rights were engaged [60].
+Lord Hodge (with whom Lord Neuberger, Lord Wilson, Lord Clarke, Lord Carnwath and Lord Toulson agree) holds that the interference with the appellants Article 8 rights was objectively justified.
+The termination of an unsuccessful applicants licence to occupy s.188 accommodation is in accordance with the law and pursues the legitimate aim of inter alia accommodating other homeless applicants [67].
+Recovery of possession is proportionate to that aim because in the context of limited resources there can generally be no justification for preferring those whose claims have been investigated and rejected [68].
+The procedural safeguards contained in the 1996 Act, the Children Act 1989, and by way of judicial review, together afford fair procedure such as to comply with the requirements of Article 8 [64]; there is no need to impose the additional hurdle of obtaining a court order [68]. (As Lady Hale finds for the appellants as a matter of statutory interpretation, in her judgment the Article 8 issue does not arise [168].)
diff --git a/UK-Abs/train-data/summary/uksc-2013-0230.txt b/UK-Abs/train-data/summary/uksc-2013-0230.txt
new file mode 100644
index 0000000000000000000000000000000000000000..608ea61c4066f0d6c28ecb1e624436c7430c9ed3
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2013-0230.txt
@@ -0,0 +1,49 @@
+The question raised in these appeals is whether decisions to keep the appellant prisoners in solitary confinement (also known as segregation) for substantial periods were taken lawfully.
+The decisions were made under the Prison Act 1952, rule 45 of the Prison Rules 1999 and PSO 1700, a non statutory document issued by the Secretary of State.
+Rule 45, paragraph (1) enables the governor of the prison to arrange for the prisoner to be segregated.
+Paragraph (2) provides that the prisoner shall not be segregated under the rule for more than 72 hours without the authority of the Secretary of State and that authority given under this paragraph shall be for a period not exceeding 14 days.
+In 2010 the first appellant, Kamel Bourgass, was serving a life sentence in HMP Whitemoor.
+On 23 April 2010 a prisoner who had previously assaulted Bourgass was himself assaulted.
+Bourgass was not present.
+He was segregated under rule 45(1) on the orders of the challenging prisoners manager, Mr Colley.
+The reason given was investigation into a serious assault.
+He remained in segregation for seven months.
+His continued segregation after 72 hours was purportedly authorised under rule 45(2), in accordance with PSO 1700, by various prison officers chairing the prisons Segregation Review Board (SRB), including Mr Colley.
+Authority for his segregation was accompanied by the same reason on a number of occasions, i.e. investigation of the assault.
+In May 2010 the police indicated that they did not regard Bourgass as a suspect in connection with the assault.
+After that another reason given for continued segregation was that the prison was referring Bourgass to the Close Supervision Centre (CSC).
+Bourgasss representatives initiated judicial review proceedings.
+In his response of June 2010 the Secretary of State said that Bourgass was segregated not only because of the assault but because he is considered to pose an unacceptable risk on normal location.
+It was alleged that he had been intimidating other prisoners to change faith.
+On 2 August 2010 the Secretary of State filed detailed grounds of defence to the judicial review claim, disclosing that on the morning prior to the assault, Bourgass had been seen on CCTV speaking to the perpetrator.
+This had not been disclosed previously.
+The Secretary of State also filed a witness statement repeating the suspicions about the assault and intimidation.
+In September 2010 the CSC decided not to accept Bourgass, stating that there was insufficient evidence to support the allegations.
+Segregation continued to be authorised until Bourgass was transferred to HMP Woodhill in November 2010.
+The second appellant, Tanvir Hussain, was serving a life sentence in HMP Frankland.
+On 26 April 2010 he was placed in segregation under rule 45(1) on the orders of the residential governor Mr Greener, following an incident in which another prisoner was seriously injured.
+He remained in segregation for six months.
+His continued segregation after 72 hours was purportedly authorised under rule 45(2), in accordance with PSO 1700, by various prison officers chairing the SRB, including Mr Greener.
+The reasons given were the assault, police and prison investigations into it, and, later, the risk of reprisals from other prisoners.
+Judicial review proceedings were initiated.
+On 30 July 2010 the Secretary of State submitted detailed grounds of defence and a witness statement of Mr Greener, stating that Hussain was
+initially segregated because of the assault and the risk he posed to others.
+Another reason was intelligence linking Hussain with converting other prisoners in segregation to his interpretation of Islam (an allegation which the prison subsequently withdrew).
+In October 2010 Hussain was transferred to HMP Wakefield.
+The applications for judicial review focused on issues of procedural fairness.
+They were dismissed by the High Court.
+Appeals to the Court of Appeal were dismissed.
+The Supreme Court unanimously allows the appeals and grants a declaration in each case that the appellants segregation beyond the initial period of 72 hours was not authorised, so was unlawful.
+Lord Reed gives a judgment with which Lord Neuberger, Lady Hale, Lord Sumption and Lord Hodge agree.
+There are two issues: whether the segregation was lawfully authorised, and whether the procedure followed met the requirements of fairness under the common law and, if applicable, article 6(1) of the European Convention on Human Rights.
+On the first issue, the decisions taken under rule 45(2) were not taken by the Secretary of State, but by the senior prison officer or operational manager chairing the SRB, in accordance with PSO 1700.
+The argument was that the decision of the operational manager was the decision of the Secretary of the State, by virtue of the Carltona principle. [44 46, 58, 60, 72] Under the Carltona principle, a decision of a departmental official is constitutionally the decision of the minister himself. [48 49] However, the relationship between governors and other prison officers on the one hand, and the Secretary of State on the other, is the subject of specific legislation: this is not readily reconciled with the idea that prison governors and other officers are constitutionally indistinguishable from the Secretary of State. [55] Prison governors are the holders of an independent statutory office.
+In both the 1952 Act and the Rules there are provisions imposing duties specifically on the governor or prison officers and provisions that confer separate powers on the Secretary of State.
+It is clear that the relationship between the governor, or his officers, and the Secretary of State bears no resemblance to the relationship between a minister and his officials. [58 60, 64] Neither can perform the functions properly belonging to the other.
+Rule 45(2) is intended to provide a safeguard for the prisoner against excessively prolonged segregation by the local prison management.
+It can only operate as a safeguard if it ensures that segregation does not continue for a prolonged period without being considered by officials who are independent of the prison.
+It follows that the Carltona principle cannot apply to rule 45(2) so as to enable a governor to take the decision on the Secretary of States behalf. [88 89] That is sufficient to allow the appeals, but it is also appropriate to consider the second issue, procedural fairness: first, the prisoners right to make representations and second, the scope of judicial review of decisions under rule 45(2), and its compatibility with article 6(1) ECHR. [91] Common law fairness requires that a prisoner should normally have a reasonable opportunity to make representations before a decision is taken to authorise continued segregation.
+He must therefore normally be informed of the substance of the matters on the basis of which the authority of the Secretary of State is sought.
+In the present cases, more could and should have been said. [98, 100] As to whether the decisions to authorise continued segregation fall within article 6(1), so that the prisoner is entitled to a hearing before an independent and impartial tribunal, this depends on whether the decision involves the determination of a civil right recognised by English law. [117] A prisoner does not possess any private law right to association, or any precisely defined entitlement as a matter of public law.
+Article 6(1) therefore does not apply.
+In any event judicial review could meet the requirements of article 6(1) in this context. [122 126]
diff --git a/UK-Abs/train-data/summary/uksc-2013-0252.txt b/UK-Abs/train-data/summary/uksc-2013-0252.txt
new file mode 100644
index 0000000000000000000000000000000000000000..f4a6d9c412100796c1674deace8af53cbf089fd4
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2013-0252.txt
@@ -0,0 +1,28 @@
+The issue in this appeal is whether as a matter of European Union law the United Kingdom may impose a requirement of residence in Great Britain as a condition of entitlement to disability living allowance (DLA).
+Mrs Tolley, had worked in the UK, paying national insurance contributions, from 1967 to 1984, with some further contributions up to 1993/94.
+From 1993 she was awarded the care component of DLA on an indefinite basis, because she was unable to prepare a cooked main meal for herself.
+She moved permanently to Spain in November 2002.
+The Secretary of State for Work and Pensions decided that she was no longer entitled to DLA by reason of s 71(6) Social Security Contributions and Benefits Act 1992 and the regulations thereunder, which required her to be resident in Great Britain.
+Mrs Tolley appealed against this decision on the basis that UK domestic law was incompatible with the EU law laid down in Council Regulation (EC) No 1408/71 (the Regulation).
+The Regulation provides that certain benefits (including those categorised as an invalidity benefit) are fully portable within the EU.
+The care component of DLA has, however, been categorised in a number of EU cases as a cash sickness benefit.
+Mrs Tolleys entitlement to receive it when she no longer resided in the UK depended on whether she was an employed person for the purposes of the Chapter 1 of Title III of the Regulation.
+The meaning of employed person in article 1 of the Regulation has been broadly defined by the Court of Justice of the European Union (CJEU) in cases involving other benefits as extending to anyone who is insured under a social security scheme irrespective of the existence of an employment relationship.
+Within Title III, the rights of unemployed persons to export sickness benefits are severely limited.
+Mrs Tolley argued that she was an employed person as she was insured by reason of her national insurance contributions against the risk of old age under UK legislation.
+Alternatively, she remained subject to the legislation of the UK for the purposes of article 13, which lays down the general rule that a person should only be subject to the legislation of a single member state.
+The Secretary of State argued that Mrs Tolley could not be an employed person for the purpose of the specific provisions of Chapter 1 of Title III, or that she fell within article 13(2)(f) because the legislation of the UK had ceased to be applicable to her, and she had therefore become subject to the legislation of Spain.
+Mrs Tolleys appeal was allowed by the First tier Tribunal.
+She died shortly afterwards and her husband was appointed to continue the proceedings in her place.
+The Secretary of State appealed against the First tier Tribunals decision but his appeal was rejected by the Upper Tribunal and by the Court of Appeal.
+He now appeals to the Supreme Court.
+The Supreme Court is obliged to refer questions of EU law to the CJEU if the application of the Regulation in the circumstances of this case is not clear.
+The Supreme Court unanimously decides to refer three questions to the CJEU.
+The terms of the reference are set out by Lady Hale.
+In the view of the court, the principled solution to the case would be to treat the care component of DLA as an invalidity benefit for the purpose of the Regulation.
+Unlike sickness benefits, DLA is not intended to be paid on a short term basis and is more akin to invalidity and old age benefits.
+This would have avoided the issues which had arisen in this case [7, 24].
+However, if DLA remains to be treated as a sickness benefit, none of the cases relied on by Mrs Tolley address the question of whether, in the light of the specific provisions of Title III relating to unemployed persons, the broad definition of employed persons under article 1 should apply [25].
+It is also unclear how article 13 (and the special procedures for implementing the legislation of the UK in annex VI) apply when a person remains subject only to the legislation of a member state relating to a particular benefit, in this case potential entitlement to a state retirement pension.
+The questions referred are therefore as follows [27]: 1. 2. 3.
+Is the care component of the United Kingdoms Disability Living Allowance properly classified as an invalidity rather than a cash sickness benefit for the purpose of Regulation No 1408/71? (i) Does a person who ceases to be entitled to UK Disability Living Allowance as a matter of UK domestic law, because she has moved to live in another member state, and who has ceased all occupational activity before such move, but remains insured against old age under the UK social security system, cease to be subject to the legislation of the UK for the purpose of article 13(2)(f) of Regulation No 1408/71? (ii) Does such a person in any event remain subject to the legislation of the UK in the light of Point 19(c) of the United Kingdoms annex VI to the Regulation? (iii) If she has ceased to be subject to the legislation of the UK within the meaning of article 13(2)(f), is the UK obliged or merely permitted by virtue of Point 20 of annex VI to apply the provisions of Chapter 1 of Title III to the Regulation to her? (i) Does the broad definition of an employed person in Dodl and Oberhollenzer [2005] ECR I 5065 apply for the purposes of articles 19 to 22 of the Regulation, where the person has ceased all occupational activity before moving to another member state, notwithstanding the distinction drawn in Chapter 1 of Title III between, on the one hand, employed and self employed persons and, on the other hand, unemployed persons? (ii) If it does apply, is such a person entitled to export the benefit by virtue of either article 19 or article 22? Does article 22(1)(b) operate to prevent a claimants entitlement to the care component of DLA being defeated by a residence requirement imposed by national legislation on a transfer of residence to another member state?
diff --git a/UK-Abs/train-data/summary/uksc-2014-0026.txt b/UK-Abs/train-data/summary/uksc-2014-0026.txt
new file mode 100644
index 0000000000000000000000000000000000000000..23501421982ddc01ee6b1c7603c0183a570fa563
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2014-0026.txt
@@ -0,0 +1,30 @@
+This is an application for directions in a pending appeal.
+The appeal concerns a claim in negligence by Mr Gabriel (the Appellant) against his solicitors (the First Respondent).
+The trial judge awarded Mr Gabriel 200,000 in damages and ordered the solicitors to pay Mr Gabriels costs.
+The Court of Appeal reduced the damages award to a nominal 2, set aside the judges costs order, and ordered Mr Gabriel to pay the solicitors costs of the proceedings up to and including the appeal.
+That order was made on 22 November 2013.
+On 5 March 2014, Mr Gabriel was made bankrupt.
+On 25 March 2014, Mr Hughes Holland was appointed as his trustee in bankruptcy.
+Also on 25 March 2014, permission was granted for the appeal to proceed to the Supreme Court.
+The right to pursue the appeal now rests with the trustee.
+If a trustee in bankruptcy decides to adopt legal proceedings which were on foot at the time of the bankruptcy, the trustee personally becomes a party to those proceedings in place of the bankrupt, either by way of formal substitution or simply by virtue of being treated as if he has been substituted.
+An order for costs may therefore be made against the trustee personally if the proceedings are unsuccessful.
+The trustee then has a right of indemnity against the bankrupts assets if the costs liability is properly incurred.
+Mr Hughes Holland accepts that if he decides to pursue this appeal and loses he will be personally liable for the solicitors costs before the Supreme Court.
+However, he says that he is not personally at risk by virtue of adopting the appeal as trustee in bankruptcy for the solicitors costs of the proceedings before the trial judge and the Court of Appeal.
+If Mr Hughes Holland pursues the appeal and wins, then Mr Gabriels creditors will receive between 23p and 25p in the pound instead of between 3p and 5p in the pound.
+But if Mr Hughes Holland pursues the appeal and loses, and he is ordered to pay not only the costs of the appeal to the Supreme Court but also the costs of the hearings below, the costs liability will exceed the value of the estate and Mr Hughes Holland will probably have to make up the difference from his own pocket.
+He therefore seeks confirmation as to the costs position so that he can decide whether to pursue the appeal.
+The solicitors argue that the Supreme Court does not have jurisdiction to make any order as to costs at this stage and in any event that Mr Hughes Holland should be personally liable for the costs of the proceedings below if he loses the appeal.
+The Supreme Court unanimously holds that if Mr Hughes Holland decides to pursue the appeal he will not by virtue only of his office as Mr Gabriels trustee in bankruptcy or of his adoption of the appeal be held personally liable for costs of the hearings before the trial judge and the Court of Appeal.
+Lord Sumption gives the only judgment, with which all other members of the Court agree.
+The Supreme Court has jurisdiction to deal with this application and it is proper to exercise it.
+Section 40(5) of the Constitutional Reform Act 2005 empowers the Court to determine any question necessary to be determined for the purposes of doing justice in an appeal to it under any enactment.
+Rule 46 of the Supreme Court Rules 2009 further provides that the court may make such costs orders as it considers just, and that it may do so either at final determination of an appeal, or application for permission to appeal, or in the course of proceedings.
+It is not usual for the court to decide an issue going to costs before the hearing of the substantive appeal.
+However, the ruling is necessary now to enable the trustee to decide whether to proceed, and the court is in as good a position to decide this issue now as it would be later: the application does not raise any discretionary considerations, nor does it affect the propriety of any decision of the trustee to pursue the appeal. [6 8] The Court of Appeal authority Borneman v Wilson (1884) 28 Ch D 53 suggests that a trustee in bankruptcy must either adopt proceedings in their entirety or not at all, even where there are discrete prior proceedings conducted by the bankrupt before his appointment.
+At that time, the court did not have jurisdiction to award costs against a non party, which would have included the bankrupt where the trustee had been substituted for the bankrupt; moreover, liability under such an order would not have been provable against the estate because of a line of case law which said that such liability was not contingent at the time of bankruptcy.
+The jurisdiction to award costs against a non party was recognised by the House of Lords in 1986 and the possibility of proving liability under a costs order against a company in liquidation, and consequently also against a bankrupts estate, was recognised by the Supreme Court in 2014.
+The reasons behind the Court of Appeals conclusion in Borneman are therefore no longer relevant and it is possible to revisit the issue as a matter of principle. [11 14] It may be appropriate as a matter of discretion to order a trustee in bankruptcy to pay the other sides costs of legal proceedings including those incurred before the trustee became a party, but there is no longer any absolute rule to that effect. [15] But the issue in this application does not concern that discretionary assessment.
+A trial and the successive appeals from the order made at trial are distinct proceedings in the same action and a distinct order for costs is made in respect of each stage. [16] Mr Gabriel was responsible for the entire conduct of the trial and the appeal to the Court of Appeal, and the costs order which was made against him by the Court of Appeal is a provable debt in his bankruptcy.
+It would be contrary to principle for Mr Hughes Holland to be held liable for costs in the proceedings below, as this would merely give the solicitors an unwarranted priority for their claim under the Court of Appeals costs order. [17]
diff --git a/UK-Abs/train-data/summary/uksc-2014-0028.txt b/UK-Abs/train-data/summary/uksc-2014-0028.txt
new file mode 100644
index 0000000000000000000000000000000000000000..d36641d4af09f94416a832fd7bbfd1bcb8910c61
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2014-0028.txt
@@ -0,0 +1,35 @@
+The appellant is an Egyptian national who has lived in the UK since 1994.
+He is subject to an asset freeze imposed on persons associated with Al Qaida under Chapter VII of the United Nations Charter.
+The United Nations Security Council Sanctions Committee maintains a list of persons and entities subject to the asset freeze.
+All members of the committee must agree to a nomination for inclusion on the list, or to de listing.
+The sanctions imposed on designated persons have a drastic impact on the individuals and entities concerned, and are of an indeterminate length.
+The United Kingdom had originally placed a hold on the appellants designation by the Sanctions Committee.
+On 14 September 2005 the respondent, in his capacity as a member of the Sanctions Committee, removed the United Kingdoms hold on the appellants designation.
+As a consequence, the appellant became subject to the asset freeze.
+The appellant challenged the respondents decision of 14 September 2005 to remove the hold the United Kingdom had placed on the appellants designation.
+The appellant challenged the respondents decision on four grounds: (i) although the respondents decision was made on untainted evidence, he was aware that the information on which other members of the Sanctions Committee were proceeding was or might have been obtained by torture, and this placed the respondent under an obligation not to support a tainted committee decision; (ii) the intended and inevitable effect of the committees decision was a serious interference with the appellants right to peaceful enjoyment of his property, which could only be achieved by a clear statutory power or common law rule, neither of which existed; (iii) the standard of proof adopted by the respondent, namely reasonable grounds to suspect that the appellant met the criteria for designation, was too low; (iv) the Wednesbury standard of review, that of reasonableness or irrationality, was wrong given the gravity of the context, and the appellant was entitled to a full merits review or at least one involving a proportionality analysis.
+The appellants judicial review was dismissed by the Divisional Court and the Court of Appeal.
+He was subsequently granted permission to appeal to the Supreme Court.
+The Supreme Court unanimously dismisses Mr Youssefs appeal.
+Lord Carnwath gives the only judgment, with which Lord Neuberger, Lord Mance, Lord Wilson and Lord Sumption agree.
+The court finds that the respondents 2005 decision to remove his hold on the proposal for the appellants designation by the Sanctions Committee was the exercise of prerogative powers for the conduct of foreign relations.
+This does not make it immune from judicial review, but the courts should proceed with caution [24].
+On the first ground, torture tainted evidence, the court finds that the respondents decision must be judged by reference to his reasons, which were untainted, and not by the reasons of the committee which were published in 2010 [27].
+Whilst there is no doubt as to the importance of the rules against torture and the use of torture tainted evidence, these rules do not imply a duty on states to inquire into the possible reliance on torture tainted evidence by other states, acting alone or as part of an international organisation [29].
+On the second ground, absence of power, the court finds that there is statutory authority to satisfy the principle in Entick v Carrington that interference by the state with individual property rights cannot be justified by the exercise of prerogative powers, unsupported by specific statutory authority.
+The requisite statutory authority is provided by EU Regulation 881, which was given legislative effect by the European Communities Act 1971.
+The causative role played by the prior decision of the Sanctions Committee and the respondent as a member of the committee does not affect this conclusion [34].
+The appellants third ground, that the standard of proof of reasonable grounds for suspicion is too low, is rejected.
+The court holds that the position of a decision maker trying to assess risk in advance is very different from that of a decision maker trying to determine whether someone has actually done something wrong.
+Designation has a preventative purpose [50].
+The Financial Action Task Force (FATF) recommendations relating to money laundering and terrorist financing refer to the objective of freezing terrorist related assets based on reasonable grounds, or a reasonable basis, to suspect or believe that the assets could be used to finance terrorist activity.
+A similar test of whether there is sufficient information to provide a reasonable and credible basis for the listing was proposed by the Ombudsperson in her report to the Security Council in January 2011 and reaffirmed by her in 2013 [38 9].
+The appellants reliance on the criticisms of a reasonable suspicion test by this court in Ahmed v HM Treasury (no. 2) [2010] UKSC 5 is rejected on the basis that the majority judgments in Ahmed turned principally on the interpretation of the United Nations Act 1946, and that this court has the advantage of more recent evidence as to the current practice of the UN committee court [49].
+The fourth ground is the standard of review.
+The respondent accepted in light of the approach in Kennedy v Charity Commission [2014] UKSC 20 and Pham v Secretary of State for the Home Department [2015] UKSC 19, that the facts of the case are such that the review to be conducted will be in accordance with common law principles, incorporating notions of proportionality, but submitted that this does not imply a shift to merits review [54].
+The court finds that whilst there is support for the use of proportionality as a test in relation to interference with fundamental rights, in many cases the application of a proportionality test is unlikely to lead to a different result from traditional grounds of judicial review, particularly in cases involving national security, where a large margin of appreciation is accorded to the executive [56 7].
+The court rejects the appellants submission that a full merits review was required, finding that the UN Security Council has entrusted member states, as members of the Sanction Committee, with determining whether the designation criteria are met.
+It would be inconsistent with that regime for a national court to substitute its own assessment [58].
+The court finds that whilst the Divisional Court was wrong to lay emphasis on an irrationality test, the applicant had failed to identify any particular aspect of the reasoning which is open to challenge even applying a proportionality test [59].
+The court holds that even if there were a flaw in the respondents 2005 decision, this of itself would not entitle the appellant to a remedy.
+Quashing the decision would not have any substantive effect on the appellants present position, as it would not detract from the continuing effect of the Sanction Committees listing or its application in the United Kingdom through Regulation 881 [60].
diff --git a/UK-Abs/train-data/summary/uksc-2014-0185.txt b/UK-Abs/train-data/summary/uksc-2014-0185.txt
new file mode 100644
index 0000000000000000000000000000000000000000..c8e1cbaefb45789ebf292357b048e038e1f1f8f8
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2014-0185.txt
@@ -0,0 +1,29 @@
+The question in this case is whether the respondent local authority were entitled to be satisfied that the appellant, Ms Haile, became homeless intentionally.
+If the authority were not satisfied that she became homeless intentionally (section 193(1) of the Housing Act 1996), then they were under a duty to secure that accommodation was available for her occupation (section 193(2)).
+By section 191(1) of the 1996 Act: a person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.
+The appellant surrendered her tenancy of a bedsit in a hostel on 25 October 2011.
+She moved to temporary accommodation, which ended in November 2011 when she was asked to leave because of overcrowding.
+She then applied to the respondent authority for accommodation as a homeless person.
+On 15 February 2012 she had a baby daughter.
+Had she still been living in the hostel, she would have had to leave, as only single persons were allowed to reside there.
+On 1 August 2012 the authority decided that the appellant was homeless, eligible for assistance, and had a priority need, but that she became homeless intentionally.
+On 31 January 2013, a decision to the same effect was made by a review officer.
+The basis of the finding was that she had surrendered her tenancy of the room in the hostel and in consequence had ceased to occupy accommodation which was available for her occupation, and which it would have been reasonable for her to continue to occupy until she gave birth.
+Her contention that she would have had to leave the hostel in any event when she gave birth was regarded as irrelevant.
+Her appeal was dismissed by the County Court and the Court of Appeal.
+Before the Supreme Court, she argued that the birth of her baby broke the chain of causation between her intentionally leaving the hostel, and her state of homelessness when her application was considered.
+The appeal invited the court, if necessary, to depart from the House of Lords decision in Din v Wandsworth London Borough Council [1983] 1 AC 657.
+The Supreme Court allows the appeal by a majority of 4 1 (Lord Carnwath dissenting).
+Lord Reed gives the lead judgment, with which Lord Neuberger, Lady Hale, and Lord Clarke agree.
+Lord Neuberger adds a concurring judgment.
+Lord Reed reasons that the requirement in section 193(1) is meant to prevent queue jumping by persons who, by intentionally rendering themselves homeless, would obtain a priority in the provision of housing to which they would not otherwise be entitled.
+It is in relation to the current state of being homeless that one asks, did the applicant become homeless intentionally? [22 24] Section 193(1) must therefore be understood as being concerned with whether the applicants current homelessness was caused by intentional conduct on his part.
+This depends, first, on whether he deliberately did or failed to do anything in consequence of which he ceased to occupy accommodation meeting the requirements of section 191(1).
+If yes, the further question arises under section 193(1) whether the appellants current homelessness was caused by that intentional conduct. [25, 28] Thus, section 193(1) is read as meaning the local authority are not satisfied that [the applicant is homeless because] he became homeless intentionally. [27] Din concerned the interpretation of the definition of becoming homeless intentionally in section 17(1) of the Housing (Homeless Persons) Act 1977.
+The decision that the elements of that definition were to be considered as at the time when the applicant ceased to occupy accommodation meeting the requirements of the definition is still correct.
+It also remains true that if the definition is satisfied at that point in time, subsequent hypothetical events are immaterial.
+Finally, the conclusion in Din that there must be a continuing causal connection between the deliberate act satisfying the definition of intentional homelessness, and the homelessness existing at the date of the local authoritys inquiry, remains good law. [38, 40, 59 60] Later authorities applied that principle and provide examples of events interrupting the causal connection, such as marital breakdown. [44, 62] In the present case, the review officer did not consider whether the cause of Ms Hailes current state of homelessness was her surrender of her tenancy of the room in the hostel.
+The birth of the baby meant that she would be homeless, at the time her case was considered, whether or not she had surrendered the tenancy.
+She had not jumped the queue as a result of surrendering the tenancy. [66 67] Lord Neuberger agrees with Lord Reeds analysis, [69] and adds some reasons of his own.
+Lord Carnwath, in his dissenting judgment, would have dismissed the appeal.
+In his view the reasoning of the review officer was an orthodox reflection of the majority approach in Din. [89]
diff --git a/UK-Abs/train-data/summary/uksc-2014-0204.txt b/UK-Abs/train-data/summary/uksc-2014-0204.txt
new file mode 100644
index 0000000000000000000000000000000000000000..70fcf13c5811aad1b8ee0104271172ac0011804c
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2014-0204.txt
@@ -0,0 +1,58 @@
+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].
diff --git a/UK-Abs/train-data/summary/uksc-2014-0227.txt b/UK-Abs/train-data/summary/uksc-2014-0227.txt
new file mode 100644
index 0000000000000000000000000000000000000000..aa27d80b0d35fb2ff372eff0985aecf2c9736e4c
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2014-0227.txt
@@ -0,0 +1,42 @@
+The appellant (O) is a Nigerian woman aged 38.
+After arriving in the UK illegally in 2003, her claim for asylum or discretionary leave to remain in the UK was refused and her appeal was dismissed.
+She was charged with an offence of child cruelty, but absconded on bail.
+In 2007 she was arrested and charged with another offence, for which she was later convicted and imprisoned.
+She later pleaded guilty to the outstanding child cruelty charge, and was sentenced to 12 months imprisonment and made the subject of a recommendation for deportation.
+Upon her release from prison in August 2008, the respondent (the SSHD) detained O, first under para 2(1) of Schedule 3 to the Immigration Act 1971 (the 1971 Act) pending the making of a deportation order and then, once the deportation order was made, under para 2(3) of Schedule 3 to the 1971 Act pending deportation.
+O was detained at Yarls Wood Immigration Removal Centre until 6 July 2011, when she was released on bail.
+O has suffered from serious mental ill health, including episodes of self harm, and has been the subject of several medical reports.
+In 2008 she was diagnosed with a recurrent depressive disorder and an emotionally unstable personality disorder.
+In 2009 a consultant psychiatrist instructed by O recommended that she be transferred from Yarls Wood to hospital.
+Following a suicide attempt in March 2010, O was admitted to hospital but was subsequently discharged, the hospitals consultant psychiatrist concluding that her needs would be met adequately at Yarls Wood.
+In February 2011 a report on O was prepared by another clinical psychologist instructed by O (the Report).
+The Report concluded in particular that: O suffered from not only a depressive disorder but a severe form of post traumatic stress disorder; O could not access the necessary mental health services at Yarls Wood and that release from detention would greatly benefit her mental health; O needed a long term structured package of mental health services; O needed to be referred to a specialist trauma focussed clinic for phased treatment; and that such a referral was in accordance with the National Institute for Health and Care Excellence (NICE) guidelines.
+In the present proceedings, O challenges the lawfulness of the period of her detention from 22 July 2010 (and in particular from 4 March 2011, the date of the first review of Os detention following the SSHDs receipt of the Report) until 6 July 2011 (the date of her release on bail).
+The object of these proceedings is to secure a declaration that Os detention during this period was unlawful and an award of damages.
+In April 2012 Lang J refused permission for the claim to proceed and in July 2014 the Court of Appeal dismissed Os appeal.
+O now appeals to the Supreme Court.
+The Supreme Court unanimously dismisses Os appeal.
+Lord Wilson gives the leading judgment, with which the other Justices agree.
+This appeal requires the Court to consider the SSHDs policy relating to the detention of mentally ill persons pending deportation (the Policy) and the effect of any failure by the SSHD to apply that Policy, in the light of the Court of Appeals decision in R (Francis) [4].
+The Policy obliges the SSHD to conduct monthly reviews of detention pending deportation [18].
+Para 55.10 provides that those suffering from serious mental illness which cannot be satisfactorily managed within detention will normally be considered suitable for detention only in very exceptional circumstances, including for example where there is a risk of further offending or harm to the public [19].
+In Os detention reviews between 4 March and 4 July 2011, only the briefest reference was made to the Report, and Os most recent diagnosis was incorrectly identified as being in March 2010 [24].
+Although the Report was submitted to the SSHD expressly in support of Os application to challenge her deportation [22 23], on any view it bore some relevance to the Policy and should have been addressed properly in the detention reviews [25].
+Therefore, as the Court of Appeal concluded (and the SSHD now accepts), the SSHD unlawfully failed to apply her Policy when deciding to continue to detain O between March and July 2011 [26 27].
+The refusal to release O during this period was procedurally flawed [37].
+Given that conclusion, this case does not afford the opportunity to consider the nature of the courts review of the legality of the SSHDs application of her Policy [28, 37].
+The question is then how the SSHD would have reacted to the Report, had she applied her Policy correctly.
+It is for the Court to determine the meaning of the Policy for itself [28].
+Satisfactory is a word which catches the various different factors to which the SSHD may be required to have regard.
+The discussion of satisfactory management in R (Das) is approved, save that treatment (available to a detainee only if released) which would be likely to effect a positive improvement in his or her condition might be relevant; the burden would be on the SSHD to inquire as to its availability.
+While satisfactory does not mean optimal management, a narrow construction of management, meaning no more than control of the illness would lack principled foundation [30].
+The Policy mandates a practical inquiry by the SSHD, in the light of the context of immigration detention [31].
+The SSHD should have made inquiries and obtained answers to a number of questions as to whether, in the light of the Report, Os illness could satisfactorily be managed at Yarls Wood [32 33].
+The Court cannot predict the result of those inquiries, most of which seem never to have been made.
+The SSHD would also have had to consider whether there were very exceptional circumstances which nonetheless justified Os detention.
+Even on the assumption that the proper application of the Policy should in due course have led the SSHD to direct Os release, it is unrealistic to consider that the conditions necessary for her release would have been in place prior to 6 July 2011, when she was released on bail [34 35].
+Were Os claim for judicial review permitted to proceed, it would result in no more than a declaration that her detention was unlawful and an award of only nominal damages [38 40].
+The lower courts were entitled to refuse Os application for permission [50].
+R (Francis) R (Francis) was wrongly decided.
+The power to detain conferred by para 2(1) of Schedule 3 to the 1971 Act (pending the making of a deportation order) and by the words in parenthesis in para 2(3) (pending deportation) is a mandate subject to two conditions: first, there must be a prospect of deportation within a reasonable time; and second, the SSHD must consider in accordance with the Policy whether to exercise the power to detain.
+If either condition is not satisfied, the mandate to detain ceases and detention becomes unlawful [42 49].
diff --git a/UK-Abs/train-data/summary/uksc-2014-0248.txt b/UK-Abs/train-data/summary/uksc-2014-0248.txt
new file mode 100644
index 0000000000000000000000000000000000000000..fae3e30cc97771043d5b90b4c416e541ef1b3cae
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2014-0248.txt
@@ -0,0 +1,41 @@
+The appellant suffers from a personality disorder and chronic paranoid delusional disorder.
+He has a history of admission to psychiatric hospitals.
+In 2006 he was convicted of arson and burglary.
+In the light of his mental disorder, he was made the subject of a hospital order under the Mental Health Act 1983 (the Act), which authorised his admission to and detention in a secure hospital, and a restriction order under the Act, which vested the power to discharge him in the respondent (the Minister) or the First tier Tribunal (Health, Education and Social Care Chamber) (the Tribunal).
+The appellant thereby became a restricted patient under the Act, and was detained in medium secure hospitals.
+In April 2012 the Tribunal directed that the appellant should be conditionally discharged from hospital and approved a plan that he should move to a registered care home subject to conditions.
+The appellant took up residence at a care home.
+On 19 July 2012 the carers responsible for the appellant invited the Minister to consider recalling the appellant to hospital.
+This was for a number of reasons, including that the appellants mental health had deteriorated, that he was likely to abscond, and that he was likely to breach the conditions of his discharge.
+The Minister immediately issued a warrant for the appellants recall and the warrant was executed on 19 July 2012.
+As required by the Act, the Minister referred the appellants case to the Tribunal promptly on 20 July 2012.
+The warrant set out no reasons for the appellants recall.
+When the appellant was informed that he was being recalled, he was told only that it was because his mental health had deteriorated.
+When the appellant was taken into hospital, the staff were unable to explain the reasons for his recall.
+On 24 July 2012 the Minister wrote a letter to the hospital which contained a number of errors, including the assertion that the recall warrant had not been executed, and the instruction that the appellant should be informed of the reasons for his recall within 72 hours of admission (even though that time limit had already expired).
+The letter also failed to state any reasons for the appellants recall.
+On 3 August 2012 (15 days after the appellants recall), he was provided orally with a fuller, adequate explanation for the recall, but was not provided with a written explanation.
+The appellant challenged the lawfulness of the decision to recall him.
+His application was dismissed at first instance.
+Before the Court of Appeal, his primary case was that there was an unlawful failure to explain the reasons for his recall and that (a) that failure affected the legality of his detention, or alternatively (b) that it generated a right to a declaration and damages.
+The Court of Appeal dismissed his appeal, and the appellant appealed to the Supreme Court.
+The Supreme Court unanimously dismisses the appellants appeal.
+Lord Wilson (with whom Lady Hale, Lord Kerr, Lord Reed and Lord Toulson agree) gives the leading judgment.
+Lord Reed gives a
+short concurring judgment.
+The Department of Health has issued guidelines on the recall of patients to hospital, which set out a three stage procedure for the communication of reasons (the Policy) [16].
+The Minister concedes that the second and third stages of the Policy were not implemented: namely, an adequate explanation was not provided to the appellant within three days of his recall (but only after 15 days), and no explanation in writing was provided within three days (but only months later in the context of these proceedings).
+The Minister further concedes that this means there has been a breach of the appellants common law right to have the Policy properly applied, and his right under Article 5(2) of the European Convention on Human Rights (ECHR) to be informed promptly of the reasons for his recall [17 21].
+Legal sufficiency of the Ministers explanation The explanation provided to the appellant at the time of his recall (i.e. that it was because of his deteriorating mental health) satisfied the first stage of the Policy.
+It also complied with the Ministers common law duty to provide reasons [24 25].
+As for the ECHR, Article 5(2) does not in this respect extend beyond the demands of the common law and, accordingly, there is no violation of that article [26 32].
+The Court of Appeal was therefore correct to find that the Ministers explanation at that time was legally sufficient, and it is unnecessary to consider the effect of an insufficient explanation [32].
+Effect of the Ministers conceded breaches on the legality of detention The appellant argued that the Ministers conceded breaches rendered his detention between the third and 15th days following his recall unlawful.
+As to this, there is no link, let alone a direct link (as is required following R (Lumba) and R (Kambadzi) [34 35]) between the Ministers wrongful failure for 12 days to provide the appellant with an adequate explanation for his recall, and the lawfulness of his detention during that 12 day period [39].
+Further, the consequences of the appellants argument would be of concern in other similar cases, given the need to detain restricted patients under the Act in appropriate circumstances [40].
+The Court of Appeal was therefore right to conclude that the conceded breaches did not render the detention unlawful [41].
+Damages and declaration The appellant is not entitled to damages for the breach of his common law right to receive an adequate explanation for his recall within the time set out by the Policy.
+The breach does not amount to a tort and there is nothing to suggest that damages would have been available in an ordinary action against the Minister [43].
+The conclusion is the same in relation to the violation of Article 5(2) ECHR; the appellant has failed to establish that the effects of the breach were sufficiently grave [46].
+As for a formal declaration, it would not add anything to the recording of the Ministers concessions in the Courts judgment [46].
+Lord Reed adds some observations in relation to the consequences at common law of the Ministers failure to comply with the Policy [48 53].
diff --git a/UK-Abs/train-data/summary/uksc-2014-0251.txt b/UK-Abs/train-data/summary/uksc-2014-0251.txt
new file mode 100644
index 0000000000000000000000000000000000000000..48752222315ed2b1ff4c9221ce7fb8976e2335d2
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2014-0251.txt
@@ -0,0 +1,41 @@
+The Appellant (the Father), James Rhodes, is a concert pianist, author and television film maker.
+He has written a book titled Instrumental, which he is hoping to publish, and it is aimed at providing a sound track to the story of his life.
+It includes searing accounts of the physical and sexual abuse and rape inflicted on him from the age of six by the boxing coach at his school.
+It goes on to chart his subsequent resorting to drink, drugs, self harm, attempts at suicide as well as his time in psychiatric hospital culminating in his redemption through learning, listening to and playing music.
+The book also refers to his first marriage, to an American novelist then living in London (the Mother), and the child they had together (the Son) to whom the book is dedicated.
+The Mother and Father divorced some years ago.
+During the divorce, they made a residence and contact order in London on 15 June 2009.
+This included a recital by which the Mother and Father agreed to use their best endeavours to protect the Son from any information concerning the past previous history of either parent which would have a detrimental effect upon the childs well being.
+The Mother and Son now live overseas.
+The Son has been diagnosed with Aspergers syndrome, attention deficit hyperactivity order, dyspraxia and dysgraphia.
+A first draft of the book, sent to the publishers in December 2013, was leaked to the Mother in February 2014.
+Some changes were made, such as the use of pseudonyms.
+However, the Mother wanted more significant changes as she was concerned that the book would cause psychological harm to the Son, now aged 11, if he came to read it.
+In June 2014, she brought proceedings (later taken over by the Sons godfather), on behalf of the Son, on various grounds seeking an injunction prohibiting publication or the deletion of a large number of passages.
+She adduced evidence from a consultant child psychologist whose opinion was that the Son was likely to suffer severe emotional distress and psychological harm if exposed to the material in the book because of his difficulties in processing information.
+In July 2014, Bean J in the High Court dismissed the application for an interim injunction.
+In October 2014, the Court of Appeal reversed the High Court, finding that only the claim for intentionally causing harm under the tort in Wilkinson v Downton should go to trial.
+It also granted an interim injunction restraining the Father from publishing certain information such as, for example, graphic accounts ofsexual abuse he suffered as a child.
+The Father appealed to the Supreme Court.
+The Supreme Court unanimously allows the appeal.
+Lady Hale and Lord Toulson (with whom Lord Clarke and Lord Wilson agree) deliver the judgment of the Court.
+Lord Neuberger (with whom Lord Wilson agrees) gives a concurring judgment.
+Lady Hale and Lord Toulson consider the domestic case law [31 67] and other common law authorities [68 71] in relation to the tort in Wilkinson v Downton.
+It consists of three elements: (1) a conduct element; (2) a mental element; and, (3) a consequence element.
+Only (1) and (2) are issues in this case [73].
+The conduct element requires words or conduct directed towards the claimant for which there was no justification or reasonable excuse, and the burden of proof is on the claimant [74].
+In this case, there is every justification for the publication.
+The Father has the right to tell the world about his story.
+The law places a very high value on freedom of speech.
+The right to disclosure is not absolute because a person may, for example, owe a duty to treat information as confidential, but there is no general law prohibiting the publication of facts which will distress another person.
+It is hard to envisage any case where words which are not deceptive, threatening or (possibly) abusive could be actionable under the tort recognised in Wilkinson v Downton [75 77].
+In addition, the injunction prohibiting graphic language was wrong in principle and in form; it is insufficiently clear what graphic means and, in any event, a right to convey information to the public includes a right to choose the language in which it is expressed in order to convey the information most effectively [78 79].
+The required mental element is an intention to cause physical harm or severe mental or emotional distress.
+Recklessness is not enough [87].
+In this case, there is no evidence that the Father intends to cause psychiatric harm or severe mental or emotional distress to his Son [89], and there is no justification for imputing an intention to cause harm on the basis of harm being foreseeable.
+Intention is a matter of fact.
+It may be inferred in an appropriate case from the evidence, but is not to be imputed as a matter of law [81 82].
+There is no real prospect of establishing either the conduct element or the mental element of the tort [90].
+Lord Neuberger allows the appeal for the same reasons.
+It would be an inappropriate restriction on freedom of expression to restrain publication of a book simply because another, to whom the book is not directed, might suffer psychological harm from reading it [97].
+He adds some further remarks as to the scope of the tort in Wilkinson v Downton [101 121].
diff --git a/UK-Abs/train-data/summary/uksc-2015-0017.txt b/UK-Abs/train-data/summary/uksc-2015-0017.txt
new file mode 100644
index 0000000000000000000000000000000000000000..ac5e058199e0fa614b988f35abcba357ded2e7cd
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2015-0017.txt
@@ -0,0 +1,33 @@
+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].
diff --git a/UK-Abs/train-data/summary/uksc-2015-0021.txt b/UK-Abs/train-data/summary/uksc-2015-0021.txt
new file mode 100644
index 0000000000000000000000000000000000000000..acbc29821b01541c7b603f952abb8c4de0f98ac2
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2015-0021.txt
@@ -0,0 +1,36 @@
+The Chagos Islands are otherwise known as the British Indian Ocean Territory (BIOT).
+In 1962 they had a settled population of 1,000.
+In 1966 the UK Government agreed to allow the USA to use the largest of the Chagos Islands, Diego Garcia, as a military base.
+Pursuant to this arrangement, the Commissioner for BIOT made the Immigration Ordinance 1971 (the Ordinance).
+Section 4 of the Ordinance made it unlawful for a person to be in the BIOT without a permit and empowered the Commissioner to make an order directing that persons removal.
+Between 1968 and 1973 the UK Government procured the removal and resettlement of the Chagossians by various non forceful means.
+In 2000 the appellant, Mr Bancoult, obtained a High Court order quashing section 4 of the Ordinance.
+The then Foreign Secretary announced that he accepted this decision, such that the prohibition on the resettlement of BIOT was lifted.
+He also announced that work on the second stage of a feasibility study into the resettlement of the former inhabitants would continue.
+The second stage of the feasibility study was published in 2002.
+Part B (the 2B report) concluded that the costs of long term inhabitation of the outer islands would be prohibitive and life there precarious.
+In 2004 Her Majesty by Order in Council made the BIOT Constitution Order (the 2004 Order) which introduced a new prohibition on residence or presence in BIOT.
+In 2008, the appellants challenge to the 2004 Order by judicial review was dismissed by a majority of 3 (Lord Hoffmann, Lord Rodger and Lord Carswell) to 2 (Lord Bingham and Lord Mance) in the House of Lords (R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61) (the 2008 judgment).
+In separate litigation concerning the Governments declaration of a Marine Protected Area (MPA) around BIOT, the respondent in 2012 disclosed certain documents relating to the drafting of the 2B report (the Rashid documents).
+The appellant seeks to set aside the 2008 Decision on the grounds that (i) the Rashid documents cast doubt on the reliability of the 2B report and should, pursuant to the respondents duty of candour in public law proceedings, have been disclosed prior to the 2008 judgment, and (ii) four heads of new evidence have come to light, constituting independent justification for setting aside the 2008 judgment.
+In 2014 15 a new feasibility study concluded that, assuming for the first time possible re settlement of Diego Garcia itself, scope existed for supported resettlement of BIOT (the 2014 15 study).
+The Supreme Court dismisses the appeal by a majority of 3 to 2.
+Lord Mance gives the majority judgment, with which Lord Neuberger agrees.
+Lord Clarke gives a separate judgment, concurring with Lord Mance.
+Lord Kerr gives a dissenting judgment, with which Lady Hale agrees in a separate dissent.
+The Supreme Court has inherent jurisdiction to correct injustice caused by an unfair procedure which leads to an earlier judgment or is revealed by the discovery of fresh evidence, although a judgment cannot be set aside just because it is thought to have been wrong on points unrelated to such procedure or evidence [5, 154, 190].
+The authorities indicate as the threshold for setting aside a previous judgment whether a significant injustice has probably occurred in case of non disclosure or whether there is a powerful probability of significant injustice in case of fresh evidence.
+But Lord Mance leaves open the possibility of the egregiousness of the procedural breach and/or the difficulty of assessing its consequences militating in favour of a lower threshold, and considers the application on that basis too [8].
+An applicant must also show that there is no alternative effective remedy [6].
+As to the non disclosure, the essential questions are (i) whether due disclosure of the Rashid documents would have led to a challenge by Mr Bancoults representatives to the 2B report in the original judicial review proceedings, and, if so, (ii) whether it is likely that such a challenge would have resulted in a different outcome to the 2008 judgment [61].
+Assuming without deciding that (i) was satisfied, Lord Mance concludes as to (ii), after reviewing the 2008 judgment [16 19] and the Rashid documents [20 64], that there is no probability, likelihood, prospect or real possibility that a court would have seen, or would now see, anything which could, would or should have caused the respondent to doubt the conclusions of the 2B report, or made it irrational or otherwise unjustifiable to act on them in June 2004 [65].
+As to the alleged new evidence, the first head consists essentially of analysis and submissions which the majority takes into account, the second and third heads consist of material outside the respondents knowledge at the relevant times and neither they nor the fourth provide any basis for setting aside the 2008 judgment [66 71].
+Even if the threshold for setting aside were crossed, circumstances have changed in the light of the 2014 15 study and/or governmental confirmation that the MPA does not preclude resettlement [72 75].
+It is now open to any Chagossian to mount a fresh challenge to the failure to abrogate the 2004 orders in the light of the 2014 15 studys findings, as an alternative to further lengthy litigation and quite possibly a fresh first instance hearing about the factually superseded 2B report. [72 76, 78 79].
+Lord Kerr, with whom Lady Hale agrees, would have set aside the 2008 Decision.
+Although the appellant accepted that it must be shown that the non disclosure probably had, or may well have had, a decisive effect on the outcome [155], Lord Kerr would have held that it is enough for there to be a real possibility that a different outcome would have occurred had the information been available at the time of the original hearing [160 163].
+The Rashid documents might well have caused the 2008 Decision to be different [168, 193].
+Lord Kerr disagrees with the majority that the conclusions of the 2014 2015 feasibility study render the present application moot.
+The mere possibility that the Chagossians might be allowed to resettle is insufficient.
+It would be necessary to demonstrate that they would achieve the same result as would accrue on the successful re opening of the appeal [179].
+Moreover, there is no question of pragmatic justice being done here as the Supreme Court in this appeal is unable to vindicate the appellants right to resettle in the BIOT [180].
diff --git a/UK-Abs/train-data/summary/uksc-2015-0022.txt b/UK-Abs/train-data/summary/uksc-2015-0022.txt
new file mode 100644
index 0000000000000000000000000000000000000000..43684e8e79f3b98aebea8ff6ffefa2220ee24fde
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2015-0022.txt
@@ -0,0 +1,70 @@
+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].
diff --git a/UK-Abs/train-data/summary/uksc-2015-0050.txt b/UK-Abs/train-data/summary/uksc-2015-0050.txt
new file mode 100644
index 0000000000000000000000000000000000000000..a724cc9c52d1092214f6b753a812a9ecca4bfa8e
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2015-0050.txt
@@ -0,0 +1,35 @@
+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].
diff --git a/UK-Abs/train-data/summary/uksc-2015-0092.txt b/UK-Abs/train-data/summary/uksc-2015-0092.txt
new file mode 100644
index 0000000000000000000000000000000000000000..7e0ea9fb955057bda8945f3ce4b5416f3fe4899c
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2015-0092.txt
@@ -0,0 +1,40 @@
+This is an appeal against an order for the deportation of a foreign criminal who has children who are citizens of and resident in the United Kingdom.
+The appellant was born in Tunisia.
+In 1996 he married a UK citizen and they had a daughter, born in Northern Ireland, in 1997.
+Shortly after the birth, the appellant joined them in Northern Ireland on a spousal visa.
+A year later he was granted indefinite leave to remain.
+He separated from his wife in 1999, although they have never divorced.
+In 2006 he had a son with a new partner, but the relationship broke down shortly after the birth.
+In 2008 the Family Court ordered that he could only have indirect contact with his daughter and that he must obtain the leave of the court before making any further applications for contact.
+He has not had any contact with his son since 2010.
+In 2005 the appellant was convicted of two counts of assault occasioning grievous bodily harm, for which he received concurrent sentences of 39 months and nine months imprisonment.
+Between 2008 and 2010 he was convicted of and sentenced for a series of further offences, including breach of a non molestation order, disorderly behaviour and assaulting a police officer.
+Following a further incident in 2011 he was convicted of disorderly behaviour, attempted criminal damage and resisting a police officer for which he received three concurrent sentences of five months imprisonment.
+In 2012 the Home Secretary sought the appellants deportation on account of his convictions.
+Following inquiries regarding the appellants family circumstances, a deportation order was issued.
+The appellant appealed claiming that his deportation would breach his and his childrens right to respect for private and family life under article 8 of the European Convention on Human Rights and that the Secretary of State had failed to take sufficient account of the best interests of his children.
+His appeals to the First tier Tribunal, Upper Tribunal and Court of Appeal were dismissed.
+The Supreme Court unanimously dismisses Mr Makhloufs appeal.
+Lord Kerr gives the lead judgment with which the other Justices agree.
+Lady Hale gives a concurring judgment.
+Where a decision is taken about the deportation of a foreign criminal who has children residing in the United Kingdom, separate consideration of their best interests is required, especially if they do not converge with those of the parent to be deported and particularly in the case of a child with dual ethnic background.
+The childs interests must rank as a primary consideration [40].
+The question of whether sufficient consideration of the article 8 issues which arise in a particular case can take place through the application of the immigration rules has been thoroughly discussed in the associated case of Ali v Secretary of State for the Home Department [2016] UKSC 60.
+But the issue in this case is simply whether the Secretary of State was in fact provided with sufficient material on which to make a proper judgment on the article 8 rights of the appellant and his children [41].
+All the evidence on this issue leads unmistakeably to the conclusion that the appellant did not enjoy any relationship with either of his children and they led lives which were wholly untouched by the circumstance that he was their father.
+While the possibility of such a relationship developing was a factor to be considered, in this case the material available to the Secretary of State could admit of no conclusion other than it was unlikely in the extreme.
+The lately produced information that the mother of his son might re consider contact between them partakes of a last throw of a desperate dice [42].
+The Secretary of State was therefore not obliged to make yet further inquiries in relation to the appellant and his children beyond those which had already taken place [44].
+Lady Hale adds that children must be recognised as rights holders on their own account and not just as adjuncts to other peoples rights [47].
+But that does not mean that their rights are inevitably a passport to another persons rights.
+The problem in this case is that it is the appellant who is treating the children as a passport to his own rights, rather than as rights holders in their own right.
+His daughter is now 19 and has had no contact with him since she was five [48].
+Without a very good reason to the contrary, the Secretary of State is entitled to treat the orders of the family courts as reflecting what is indeed in the best interests of the children concerned.
+The idea that the Secretary of State should make her own investigation of matters which have already been investigated by the family courts is not only unrealistic, but would also create uncertainty and anxiety for the children.
+Of course it is good for children, especially children of mixed ethnicity, to have a relationship with both of their parents.
+But it also good for them to have peace and stability.
+The daughter is not prevented from establishing a relationship with her father by him living in Tunisia [49].
+There was no credible evidence that the appellant had sought contact with his son and nothing to suggest that the appellant has been making a meaningful contribution to his life.
+He too requires peace and stability and can establish a relationship with his father in future should he wish to do so [50].
+There is nothing at all to suggest that the best interests of these children require that their father should remain in the United Kingdom.
+Of course there will be cases where fuller inquiries are warranted or where the best interests of children do outweigh the public interest in deportation or removal, but this is emphatically not one of them [51].
diff --git a/UK-Abs/train-data/summary/uksc-2015-0122.txt b/UK-Abs/train-data/summary/uksc-2015-0122.txt
new file mode 100644
index 0000000000000000000000000000000000000000..686c3d04a4b49190c1b46a9ce1fc3e888b62b8fd
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2015-0122.txt
@@ -0,0 +1,40 @@
+The respondent Ms Mitchell was convicted of the murder on 11 May 2009 of her former partner Anthony Robin.
+At the trial, she did not dispute that she had stabbed Mr Robin, but said she had acted in self defence.
+She also claimed that she had been provoked and that she did not have the intention to kill him or cause him really serious harm.
+The prosecution applied to adduce evidence of Ms Mitchells previous bad character for the purpose of showing that she had a propensity to use knives in order to threaten and attack others.
+The evidence related to two incidents in 2003 and 2007 in which she was said to have threatened and stabbed others with knives.
+None of the previous alleged incidents had resulted in a conviction.
+It was agreed between the prosecution and the defence that statements which contained details of the earlier incidents would be read out during the trial.
+The judge directed the jury to take [this evidence] into account or leave it out of account as you consider appropriate, but not to make any assumptions based on it as to Ms Mitchells guilt.
+On appeal, Ms Mitchell argued that the trial judge had failed to direct the jury properly on the purpose of the bad character evidence or the standard of proof to which the jury had to be satisfied before they could take it into account.
+The Court of Appeal allowed her appeal, quashed the conviction and ordered a re trial.
+At the re trial Ms Mitchell pleaded guilty to manslaughter and was acquitted of murder.
+The prosecution appealed to the Supreme Court against the quashing of the murder conviction.
+The Court of Appeal certified the following question of law: Is it necessary for the prosecution relying on non conviction bad character evidence on the issue of propensity to prove the allegations beyond a reasonable doubt before the jury can take them into account in determining whether the defendant is guilty or not?
+The Supreme Court unanimously dismisses the appeal and upholds the decision of the Court of Appeal to quash Ms Mitchells conviction for murder.
+In his judgment Lord Kerr (with whom Lord Clarke, Lord Hughes, Lord Toulson and Lord Hodge agree) clarifies how juries should treat evidence of similar facts or propensity.
+The prosecution argued that evidence in relation to propensity did not call for any special examination by the jury.
+It should be considered along with all the other relevant evidence so as to allow the jury to
+determine whether the defendants guilt was established to the criminal standard.
+It was not necessary that the issue of propensity be segregated from the generality of the evidence and a pre emptive decision made in relation to that issue, before the question of guilt or innocence of the accused was tackled [19].
+The respondent argued that facts supporting the claim that the defendant had a particular propensity had to be proved beyond reasonable doubt.
+It was inconceivable that a jury could have a reasonable doubt as to the accuracy or veracity of the evidence said to underpin such a propensity and, nevertheless, accept that evidence as sufficient to establish its presence. [21] The Court recognises that there is a distinction between, on the one hand, proof of a propensity and, on the other, the individual underlying facts said to establish that a propensity exists.
+In a case in which several incidents are relied on by the prosecution to show a propensity on the part of the defendant, it is not necessary to prove beyond reasonable doubt that each incident happened in precisely the way that it is alleged to have occurred.
+Nor must the facts of each individual incident be considered by the jury in isolation from each other [39].
+The proper issue for the jury in a case such as this is whether they are sure, beyond reasonable doubt, that the propensity has been proved.
+The jury is entitled to and should consider the evidence about propensity in the round [43].
+This is both because the improbability of a number of similar incidents being false is a consideration for the jury and secondly because obvious similarities in various incidents may constitute mutual corroboration for those incidents.
+Nevertheless, the existence of propensity must be proved to the criminal standard.
+The Court rejects the prosecutions argument that propensity does not call for special treatment.
+The jury should be directed that if they are to take propensity into account, they should be sure that it has been proved.
+This does not require that each individual item of evidence said to show propensity must be proved beyond reasonable doubt.
+It means that all the material touching on the issue should be considered with a view to reaching a conclusion as to whether they are sure that the existence of a propensity has been established [44].
+There is no need for the jury to consider each incident in hermetically sealed compartments [49].
+In so far as the Court of Appeal in the present case suggested that each incident claimed by the prosecution to show a propensity on the part of the defendant required to be proved to the criminal standard, it was wrong.
+The proper question is whether the jury is satisfied that a propensity has been established.
+That assessment depends on an overall consideration of the evidence available, not upon a segregated examination of each item of evidence in order to decide whether it has been proved beyond reasonable doubt [54].
+The trial judge failed to give adequate directions as to how the question of propensity should be approached by the jury, however.
+On that account the conviction was unsafe and had been properly quashed [56].
+The Court emphasises, however, that propensity is, at most, an incidental issue.
+It should be made clear to the jury that the most important evidence is that which bears directly on the guilt or innocence of the accused person.
+Propensity cannot alone establish guilt [55].
diff --git a/UK-Abs/train-data/summary/uksc-2016-0009.txt b/UK-Abs/train-data/summary/uksc-2016-0009.txt
new file mode 100644
index 0000000000000000000000000000000000000000..797bbf23ceca8dff637486d0c24b1e70673bdc0a
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2016-0009.txt
@@ -0,0 +1,39 @@
+Mr Kiarie has Kenyan nationality.
+He came to the UK in 1997 with his family at the age of three.
+Mr Byndloss has Jamaican nationality.
+He has lived in the UK since the age of 21 and has a wife and children living in the UK.
+Following their separate convictions for serious drug related offences, in October 2014 the respondent made orders for their deportation to Kenya and Jamaica respectively and rejected the appellants claims that deportation would breach their right to respect for their private and family life under article 8 of the European Convention on Human Rights (ECHR).
+When making the deportation orders, the Home Secretary issued certificates under section 94B of the Nationality, Immigration and Asylum Act 2002.
+In certifying the appellants claims under section 94B, the respondent chose not to instead certify their human rights claims as clearly unfounded under section 94, indicating that their appeals were arguable.
+The effect of section 94B certification is that the appellants can bring their appeals against the respondents immigration decisions only after they have returned to Kenya and Jamaica.
+Until 30 November 2016, section 94B provided that where a human rights claim had been made by a person liable to deportation, the Secretary of State may certify the claim if she considers that the removal of the person pending the outcome of their appeal would not be unlawful under section 6 of the Human Rights Act 1998 and that the person would not face a real risk of serious irreversible harm if removed to that country.
+The court stresses that this appeal is not about the circumstances in which a person can successfully resist deportation by reference to his private or family life.
+It recently addressed that question in the case of Ali and ruled that he can do so only if the circumstances are very compelling.
+The question in this appeal is: where the law gives such a person a right to appeal to a tribunal against a deportation order, then, however difficult it may be for him to succeed, does the Home Secretary breach his human rights by deporting him before he can bring the appeal and without making proper provision for him to participate in the hearing of it? The Court of Appeals answer was no.
+The Supreme Court unanimously allows the appeal of Mr Kiarie and Mr Byndloss and quashes the certificates.
+Lord Wilson gives the lead judgment, with which Lady Hale, Lord Hodge and Lord Toulson agree.
+Lord Carnwath gives a concurring judgment.
+The fundamental objective of section 94B arises from the fact that the appellants are foreign criminals and, by virtue of section 32(4) of the UK Borders Act 2007, the deportation of a foreign criminal is conducive to the public good [32 33].
+However, Parliament gave foreign criminals a right of appeal against a deportation order by enacting
+section 82(1) and (3A) of the Nationality, Immigration and Asylum Act 2002.
+The public interest in the removal of an appellant in advance of his appeal is outweighed by the public interest that a right of appeal should be effective [35].
+In proceedings for judicial review of a section 94B certificate, the tribunal must decide for itself whether deportation in advance of appeal would breach the appellants ECHR rights.
+It must assess for itself the proportionality of deportation at that stage, albeit attaching considerable weight to public policy considerations relied on by the respondent [42 43].
+The application of the Wednesbury criterion to the right to depart from the Home Offices findings of fact, even when heightened to anxious scrutiny, is inapt.
+Under section 6 of the Human Rights Act 1998, the court may require to be more proactive than application of that criterion would permit.
+The residual power of the court to determine facts, and to receive evidence including oral evidence, needs to be recognised [47].
+Article 8 requires that an appeal against a deportation order by reference to a claim in respect of private and family life should be effective [51 52].
+While the effect of an appellants immediate removal from the UK is likely to significantly weaken his arguable appeal [58], what is determinative of these appeals is whether the issue of a section 94B certificate obstructs an appellants ability to effectively present his appeal against the deportation order [59].
+In an appeal brought from abroad, the appellants ability to present his case is likely to be obstructed in a number of ways.
+Even if he is able to secure legal representation, the appellant and his lawyer would face formidable difficulties in giving and receiving instructions prior to and during the hearing [60].
+Further, the effectiveness of an arguable appeal is likely to turn on the ability of the appellant to give live evidence to assist the tribunal in its assessment of whether he is a reformed character and the quality of his relationships with others in the UK, in particular with any child, partner or other family member [61, 63].
+An effective appeal requires that the appellants are afforded the opportunity to give live evidence [76].
+While the giving of evidence on screen is not optimum, it might be enough to render the appeal effective for the purposes of article 8, provided that the opportunity to give evidence in that way is realistically available to them [67].
+However, the financial and logistical barriers to their giving evidence on screen from abroad are almost insurmountable.
+The respondent has therefore certified article 8 claims of foreign criminals under section 94B in the absence of a ECHR compliant system for the conduct of an appeal from abroad.
+The Ministry of Justice has failed to make provision for facilities at the hearing centre, or for access to such facilities abroad, as would allow the appellants to give live evidence and participate in the hearing [76].
+Deportation pursuant to the certificates would therefore interfere with the appellants rights to respect for their private and family life in the UK pursuant to article 8 and, in particular, with the aspect of their rights which requires that their challenge to a threatened breach of them should be effective.
+The respondent has failed to establish that deportation in advance of appeal strikes a fair balance between the rights of the appellants and the interests of the community and therefore the decisions to issue the certificates were unlawful [78].
+In a concurring judgment, Lord Carnwath concludes that an effective appeal for the purposes of article 8 is unlikely to turn on subjective issues requiring the appellant to give direct evidence, such as whether the appellant is a reformed character [100].
+However, it is wrong in principle for the respondent, as the opposing party to the appeal, to be allowed to dictate the conduct of the appellants case or the evidence on which he chooses to rely.
+The respondent must be able, at the time of certification, to satisfy herself that the necessary facilities can and will be provided [102].
diff --git a/UK-Abs/train-data/summary/uksc-2016-0010.txt b/UK-Abs/train-data/summary/uksc-2016-0010.txt
new file mode 100644
index 0000000000000000000000000000000000000000..f64741c766ca13419ffbd5e1e065e8c3a3f249bf
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2016-0010.txt
@@ -0,0 +1,37 @@
+Six individuals were involved in road traffic accidents involving vehicles whose drivers were insured by the appellant insurance company, Haven Insurance Company Limited (Haven).
+They all entered into conditional fee agreements (CFAs) with the respondent solicitors firm, Gavin Edmondson Solicitors Limited (Edmondson).
+Edmondson notified the claims via the online Road Traffic Accident Portal (the Portal), in accordance with the Pre action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (the Protocol).
+Under this scheme, the solicitors lodge the details of the claim on the Portal, the insurers respond by admitting or denying liability, and then, if liability is admitted, the amount of the damages are negotiated, with recourse to a court hearing if the amount cannot be agreed.
+Under the Protocol, the insurer is expected to pay the solicitors fixed costs and charges direct to the solicitors.
+In this case, however, shortly after the claims were logged on the Portal, Haven made settlement offers direct to the claimants, on terms which did not include any amount for the solicitors costs.
+Haven told the claimants that they could pay the claimants more, and more quickly, by that route, than by going through the Portal.
+All the individuals eventually accepted these offers, and cancelled their CFAs with Edmondson.
+This practice by Haven has been repeated in many other cases, which are not before the court.
+Edmondson claimed against Haven for the fixed costs which it should have been paid under the Protocol.
+Specifically, Edmondson sought enforcement of the solicitors equitable lien.
+This is a form of security for the payment of fees owed by the client for the successful conduct of litigation, paid out of the fruits of that litigation.
+Edmondsons claim was dismissed at first instance.
+The Court of Appeal allowed their appeal, holding that, even though the claimants did not have a contractual liability for the firms charges, which meant that the traditional equitable lien claim failed, the remedy could be modernised to allow the solicitors to recover from the insurers their fixed costs that should have been paid under the Protocol.
+The Supreme Court unanimously dismisses the appeal.
+Lord Briggs gives the lead judgment, with which the rest of the Court agrees.
+Edmondson are entitled to the enforcement of the traditional equitable lien against Haven, as the client owed a contractual duty to pay the solicitors charges.
+However, the equitable lien should not have been modernised in the manner undertaken by the Court of Appeal.
+The solicitors equitable lien: the existing law As the early cases demonstrate, the solicitors equitable lien was developed to promote access to justice.
+It enables solicitors to offer litigation services on credit to clients who, although they have a meritorious case, lack the financial resources to pay up front for its pursuit [1], [33 34].
+The equitable lien depends upon (i) the client having a liability to the solicitor for his charges; (ii) there being something in the nature of a fund in which equity can recognise that the solicitor has a claim (usually a debt owed by the defendant to the solicitors client which owes its existence to the solicitors services to the client); and (iii) something sufficiently affecting the conscience of the payer at the time of payment, either in the form of collusion with the client to cheat the solicitor or notice or knowledge of the solicitors claim against or interest in the fund [35 37].
+Construction of the CFA does the client have any contractual liability to pay the solicitors charges? The client care letter, which explained that the solicitor would be able to recover its costs from the losing side if the claimants won, so that the claimants would not need to put their hands in their own pockets, did not mean that the claimants were not contractually liable for the solicitors fees.
+It merely limited the recourse from which Edmondson could satisfy that liability to the amount of its recoveries from the defendant, and it both preserved and affirmed the clients basic contractual liability.
+This was a sufficient foundation for the lien to operate as a security for payment, on a limited recourse basis [40 44].
+Did Haven have notice of Edmondsons lien? In all the cases before the court, the requirement that the settlement debts must owe their creation to Edmondsons services provided to the claimants under the CFAs was satisfied on the facts.
+Edmondsons actions in logging the claim on the portal contributed to the settlement in two ways.
+First, it supplied the details of the claim to the insurer, and second, it demonstrated the claimants serious intention to pursue the claim, and ability to do so with the benefit of a CFA [45 46], [59 63].
+Once a defendant or his insurer is notified that a claimant in a road traffic accident case has retained solicitors under a CFA, and that the solicitors are proceeding under the Protocol, they have the requisite notice and knowledge to make a subsequent payment of settlement monies direct to the claimant unconscionable, as an interference with the solicitors interest in the fruits of the litigation.
+In this case, Haven had notice of the lien because they knew that each of the claimants had retained Edmondson under a CFA, and also knew that Edmondson was looking to the fruits of the claim for recovery of its charges [48 50].
+As such, the lien could be enforced against Haven by requiring it to pay the fee amounts in the CFAs direct to Edmondson, but only up to the amount of the agreed settlement payments [65].
+To that limited extent the order made by the Court of Appeal needed to be varied.
+The re formulation of the equitable lien by the Court of Appeal It is not strictly necessary to address this issue in view of the decision on the traditional principle above, but the correctness or otherwise of the Court of Appeals reformulation of the principle has been extensively argued, and the Law Society has intervened to support it [51 52].
+There are insuperable obstacles to extending the principle to cases where, although there is no contractual liability for the charges, the Protocol is breached.
+This includes the fact that the Protocol is purely voluntary and created no debt or other relevant legal rights at all.
+Whilst equitable remedies are flexible, they still operate according to principle.
+One of the principles of the equitable lien is that the client must have a responsibility for the solicitors charges.
+There is no general principle that equity will protect solicitors from any unconscionable interference with their expectations in relation to recovery of their charges [53 58].
diff --git a/UK-Abs/train-data/summary/uksc-2016-0039.txt b/UK-Abs/train-data/summary/uksc-2016-0039.txt
new file mode 100644
index 0000000000000000000000000000000000000000..cd24b928df396f3e23df26beb39cd7036a0fd5c3
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2016-0039.txt
@@ -0,0 +1,37 @@
+The appellant is a Turkish airline, largely owned by Mr Bagana.
+Prior to its liquidation, the respondent was a holiday tour company which had been wholly owned by Mr Aydin.
+The respondent, by its liquidator, sued the appellant in relation to two agreements between the parties.
+Rose J held that the appellant had dishonestly assisted Mr Aydin in defrauding the respondent and that it should pay damages to it in the sum of 3.64 million.
+The appellant was granted permission to appeal to the Court of Appeal against the order of Rose J.
+By an application made under then Rule 52.9(1)(c) of the Civil Procedure Rules, the respondent requested that the court should impose on the appellant a number of conditions for the continuation of its appeal.
+One requested condition was that the appellant should pay into court the sum of 3.64 million which Rose J had awarded to the respondent, on the basis that the appellant was likely to have no other assets even temporarily in England and Wales.
+The appellant disputed the imposition of this condition, but it did not allege that the disputed condition would stifle its appeal.
+By order dated 11 June 2015, Floyd LJ concluded that there was a compelling reason for imposing a condition and required that the appellant, as a condition for the continuation of its appeal, pay into the court (or otherwise secure payment of) 3.64 million by 9 July 2015.
+The appellant did not pay the sum into court.
+On 14 January 2016 Patten LJ heard the anticipated application by the respondent for dismissal of the appeal, together with a cross application by the appellant for discharge of the condition on the ground that payment of that sum was now beyond its means and its continuation would stifle the appellants appeal.
+Patten LJ held that the appellants appeal should be dismissed on the grounds that in exceptional circumstances the ability of a third party to provide funds, in this case Mr Bagana, could be taken into account in assessing the likelihood that a company could make a payment into court.
+Patten LJ stated that Mr Bagana has decided not to fund the payment by the company and concluded that the appellant had not established that the condition for payment would stifle its appeal.
+The appellant alleges that Patten LJ erred in his application of the relevant principles and in concluding that its relationship with Mr Bagana was such as to defeat its complaint that the condition for payment would stifle the appeal.
+The Supreme Court by a majority of 3 to 2 allows Onur Air Taimacilik As appeal.
+It remits both applications to Patten LJ to determine the appellants application for discharge of the condition by reference to the correct criterion [26].
+Lord Wilson gives the lead majority judgment, with which Lord Neuberger and Lord Hodge agree.
+Lord Clarke and Lord Carnwath give dissenting judgments.
+Principles To stifle an appeal is to impose a condition which prevents an appellant from bringing it or continuing it.
+If an appellant has permission to bring an appeal, it is wrong to impose a condition which has the effect of preventing him from bringing it or continuing it.
+For the purposes of Article 6 of the European Convention on Human Rights, there will seldom be a fair hearing if a court which has permitted a litigant to bring an appeal then, by indirect means, does not permit him to bring it [12].
+The appellant must establish on the balance of probabilities that a proposed condition would stifle the continuation of its appeal [15].
+The courts can proceed on the basis that, were it to be established that the condition would probably stifle the appeal, the condition should not be imposed [16].
+Even if an appellant appears to have no realisable assets, a condition for payment will not stifle its appeal if it can raise the sum [17].
+However, the court must be cautious in respect of a suggestion that a corporate appellant can raise money from its controlling shareholder.
+The shareholders distinct legal personality must remain in the forefront of its analysis.
+The question should always be whether the company can raise the money and never whether the shareholder can raise the money [18].
+The criterion which should be applied is as follows: Has the appellant company established on the balance of probabilities that no such funds would be made available to it, whether by its owner or by some other closely associated person, as would enable it to satisfy the requested condition? [23].
+Where a company and/or its owner denies that the necessary funds would be made available to the company, the court should not take that assertion at face value.
+It should judge the probable availability of the funds by reference to the underlying realities of the companys financial position and to its relationship with its owner, including the extent to which he is directing its affairs and is supporting it in financial terms [24].
+Application of principles to the present case The appellants application for discharge of the condition was refused by reference to the incorrect criterion.
+Patten LJ proceeded by reference to the Court of Appeals misconception in Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2011] EWCA Civ 2065 and Societe Generale SA v Saad Trading, Contracting and Financial Services Co and Al Sanea [2012] EWCA Civ 695, that in exceptional circumstances an order for a party, without apparent assets of its own, to make a payment into court could be justified by whether another person probably could advance the necessary funds to it irrespective of whether he probably would do so [25].
+Dissenting Judgments Lord Clarke and Lord Carnwath would have dismissed the appeal.
+Patten LJ did not materially misstate the relevant principles or arrive at the wrong conclusion [27, 46].
+Where a company does not have resources of its own and the issue is whether it has access to the resources of others, the question is whether the company would (not could) have had access to the resources [42].
+There was no direct evidence from Mr Bagana on the question of whether he would have declined to provide funds.
+The evidence falls far short of establishing that the condition would stifle the appeal [44, 48].
diff --git a/UK-Abs/train-data/summary/uksc-2016-0100.txt b/UK-Abs/train-data/summary/uksc-2016-0100.txt
new file mode 100644
index 0000000000000000000000000000000000000000..cc2fff9758def50531c89a1fb7df666183d8b3de
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2016-0100.txt
@@ -0,0 +1,47 @@
+The Solicitors Act 1974 allows the Law Society to make rules requiring solicitors to maintain professional indemnity insurance.
+The rules made by the Law Society require such insurance to satisfy certain Minimum Terms and Conditions (MTC).
+The MTC prescribes a minimum figure for which solicitors must be insured for any one claim.
+It also permits the aggregation of claims in a number of circumstances including where the claims arise from similar acts or omissions in a series of related matters or transactions (Clause 2.5(a)(iv)) [1].
+Midas International Property Development Plc sought to develop two holiday resorts, one in Turkey known as Peninsula Village and one in Marrakech, Morocco [3].
+These were to be financed by private investors who would be granted security over the development land.
+A trust was set up for each development which either owned, or held a charge over, the development land.
+The developers solicitors were the initial trustees and the investors were the beneficiaries.
+The funds advanced by the investors were initially held by the solicitors in an escrow account.
+They were not to be released to the developers unless and until the value of the assets held by the trust was sufficient to cover the investment to be protected, applying a cover test set out in the trust deed [4].
+For each investment, the developers solicitors opened a file, including a loan or purchase agreement between the investor and developers and an escrow agreement between the investor, developer and the solicitors [5].
+The developers entered an agreement for the purchase of (i) the Peninsula Village site in April 2007 and (ii) shares in a local company which owned the Marrakech site in November 2007.
+The solicitors subsequently released to the developers tranches of the investment funds for each development.
+In May 2008, the Financial Services Authority prohibited the developers from receiving any further investment in relation to the developments and the developers were unable to complete the purchase of either site.
+The developers were wound up in November 2009 [6 7].
+The investors brought two claims against the developers solicitors in the Chancery Division; one relating to each of the development sites.
+They alleged that the solicitors had failed to properly apply the cover test before releasing funds to the developers, resulting in the funds being released without adequate security [3, 8].
+The solicitors had professional indemnity insurance with the appellant.
+The appellants liability is limited to 3m in respect of each claim.
+The investors claims amount to over 10m in total.
+The insurers issued proceedings against the solicitors in the Commercial Court for a declaration that the investors claims in the Chancery Division be considered as one claim under the aggregation provision in clause 2.5(a)(iv) MTC [9].
+The Commercial Court dismissed the claim.
+It accepted that all the claims arose from similar acts or omissions, but rejected that they were in a series of related matters of transactions since the transactions between the developers and each investor where not mutually dependent [11].
+The Court of Appeal did not agree that the transactions had to be dependent on each other.
+In allowing the appeal it held that the matters or transactions had to have an intrinsic relationship with each other, not an extrinsic relationship with a third factor [12].
+The Supreme Court unanimously allows AIGs appeal.
+Lord Toulson, with whom the other justices agree gives the lead judgment.
+Clause 2.5(a)(iv) MTC has two separate limbs, each of which must be satisfied in order for it to apply.
+The first is that the claims arose from similar acts or omissions.
+It is not in dispute that this is satisfied in this case.
+The second is the requirement that the claims were in a series of related matters or transactions.
+This is an important limitation, without which the scope for aggregation would be almost limitless [17, 22].
+However, it is difficult to understand what the Court of Appeal meant by the term intrinsic in the context of a relationship between two transactions [21].
+The use of the word related implies that there must be some interconnection between the matters or transactions, however the Law Society did not see it fit to circumscribe this limb by any particular criteria, such as intrinsic.
+This is unsurprising since determining whether transactions are related is an acutely fact sensitive exercise [22].
+The application of the aggregation clause is not to be viewed from the perspective of any particular party.
+It is to be judged objectively, taking the transactions in the round [25].
+The starting point is to identify the relevant matter or transactions [23, 27].
+The transactions in this case involved an investment in a particular development scheme under a contractual arrangement that was primarily bilateral, but had an important trilateral component by reason of the solicitors role as trustees and escrow agent [23].
+The transactions entered into in respect of each development were connected in significant ways.
+Each set of investors invested in a common development, they were participants in a standard scheme and co beneficiaries under a common trust [24].
+On the facts as they currently appear, the claims of each group of investors arise from acts or omissions in a series of related transactions; the transactions shared a common underlying objective of the execution of a particular development project and also fitted together legally through the trusts [26].
+However, the transactions entered into by the Peninsula Village investors cannot be said to be related to those entered into by the Marrakech investors.
+They related to different sites, had different groups of investors and were protected by different deeds of trust over different assets.
+They should therefore not be aggregated together [27].
+A number of investors transferred their investments from Peninsula Village to the Marrakech development, entering into a new loan agreement and new escrow agreement.
+On the facts as they currently appear, any claim made by such an investor in respect of the Peninsula Village development should be aggregated with the claims made by the other investors in that development and any claim made by that investor in respect of the Marrakech development should be aggregated with their first claim [29].
diff --git a/UK-Abs/train-data/summary/uksc-2016-0121.txt b/UK-Abs/train-data/summary/uksc-2016-0121.txt
new file mode 100644
index 0000000000000000000000000000000000000000..5c76b994592bedaf6a706d5aa663327aa3fb5e19
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2016-0121.txt
@@ -0,0 +1,36 @@
+In October 2010 Hassan Barakat, a Lebanese resident, wished to gamble at the London Playboy Club and applied at the club for a cheque cashing facility for up to 800,000.
+Playboy Clubs policy for gamblers like Mr Barakat was to require a credit reference from his bankers for twice the amount.
+To avoid disclosing the purpose of the credit facility, Playboy Clubs practice was to arrange for an associated company, Burlington Street Services Ltd (Burlington), to ask the customers bank for the reference.
+Mr Barakat gave as his bankers Banca Nazionale del Lavoro (BNL) in Reggio Emilia, Italy.
+Burlington sent a Status Entry Request on Burlingtons headed paper to BNL.
+BNL stated that Mr Barakat had an account with them and that he was trustworthy up to 1,600,000 in any one week.
+Playboy Club granted the cheque cashing facility and increased it to 1.25m.
+Mr Barakat drew two cheques totalling 1.25m, made net winnings of 427,400 which were paid out to him by Playboy Club, returned to Lebanon, and was not seen again at the club.
+Both cheques were returned, and the club suffered a total net loss of 802,940 (including gaming duty).
+It was common ground between the parties that BNL had no reasonable basis for their reference.
+BNL held no account for Mr Barakat until two days after the reference was sent and that account had a nil balance until its closure on 14 December 2010.
+In the High Court, the trial judge held that BNL owed a duty of care to Playboy Club in relation to its reference.
+The Court of Appeal disagreed holding that the only duty BNL owed was to Burlington, to whom the reference was addressed.
+The Supreme Court unanimously dismisses the appeal.
+Lord Sumption gives the lead judgment with which Lady Hale and Lords Reed and Briggs agree.
+Lord Mance gives a concurring judgment.
+The principle espoused in Hedley Byrne & Co Ltd v Heller & Partners Ltd, which permits recovery of pure economic loss for a negligent misstatement where a special relationship exists, is capable of further development.
+However, voluntary assumption of responsibility remains the foundation of this area of law [7].
+The defendants knowledge of the transaction, in respect of which the statement is made, is potentially relevant for several reasons.
+It identifies by name or description the person or group of persons to whom the defendant can be said to assume responsibility [10].
+The representor must not only know that the statement is likely to be communicated to and relied upon by someone, it must also be part of the statements known purpose that it should be communicated and relied upon by that person if the representor is to be taken to assume responsibility to them [11].
+Playboy Club argued that the relationship between BNL and the Club was equivalent to contract due to Playboy Clubs status as Burlingtons undisclosed principal.
+The rule of English law that an undisclosed principal may declare himself and enter upon a contract is an anomaly that survives in modern law due to its antiquity rather than its coherence [12].
+It does not follow that simply because a relationship is treated in law as a contractual relationship that it is legally the same as a contractual relationship or involves all the same legal incidents [13].
+Whether a relationship is sufficiently proximate to create a duty of care is a question of fact from which the law draws certain conclusions.
+The liability of a contracting party to an undisclosed principal is a legal, as opposed to factual, construct.
+It creates contractual relations between parties who do not have a factual relationship with each other.
+Such a relationship is not necessarily proximate and lacks the element of mutual consent required to give rise to an assumption of responsibility [14].
+The majority of the principles governing undisclosed principals are entirely inapposite to the law of tort.
+In particular, while the relationship between a contracting party and an undisclosed principal may be mutual in a contractual sense it lacks mutuality in tort [15].
+BNL had no reason to suppose that Burlington was acting for someone else, and they knew nothing of the Playboy Club.
+It is plain that they did not voluntarily assume any responsibility to the Club [16].
+Lord Mance writes a concurring judgment.
+There are passages in some authorities which suggest that there are two requirements for a duty of care to arise in respect of a representation: (a) the claimant must be a specific person or group to whom the responsibility may be said to have been undertaken, and (b) the representation must be made specifically in connection with a particular transaction or transactions of a particular kind made known to the representor [20].
+Lord Mance does not consider that this claim should fail for want of communication of the purpose or kind of purpose for which an assessment of trustworthiness was required [22].
+The claim fails in this case because BNLs representation was directed simply and solely to Burlington, who alone objectively requested the representation, and not to Playboy Club [24].
diff --git a/UK-Abs/train-data/summary/uksc-2016-0132.txt b/UK-Abs/train-data/summary/uksc-2016-0132.txt
new file mode 100644
index 0000000000000000000000000000000000000000..439dacd680b400ee97c150508f5d5cc86afd953e
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2016-0132.txt
@@ -0,0 +1,31 @@
+The two appellants, Ms McCool and Mr Harkin, were at all material times married to one another.
+They were both convicted of a series of offences of making dishonest claims for state benefits by pretending that they were single people when they were not and, in the case of Mr Harkin, by claiming housing benefit for a house when he was living with Ms McCool at a different house.
+The Proceeds of Crime Act 2002 (the 2002 Act) came into force on 24 March 2003 (the commencement date).
+Section 156 of the 2002 Act provides for the making of orders to confiscate benefits obtained by criminal activity (confiscation orders).
+All of the offences in the present appeal, except one in each case, were committed after the coming into force of the 2002 Act.
+There are stipulations in the the commencement, transitional and savings provisions of the Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, Savings and Amendments) Order 2003 (the Commencement Order) which set out when the 2002 Act applies.
+The issue is whether, given these stipulations, a confiscation order under section 156 of the 2002 Act could be made by a Crown Court if the Crown disclaims reliance on any pre commencement offence for the purpose of the order.
+The Supreme Court by a majority of three to two (Lord Reed and Lord Mance dissenting) dismisses the appeal.
+Lord Kerr gives the main judgment.
+Lord Hughes gives a concurring judgment with which Lady Black agrees.
+Lord Reed gives the dissenting judgment, with which Lord Mance agrees.
+The appellants argue that the wording of the Commencement Order is such that where a defendant is committed for a number of offences, where any of the offences has been committed before the commencement date, then none of the offences can be dealt with under the 2002 Act.
+Lord Kerr observes that his would produce an anomalous result the appellants are effectively submitting that the jurisdiction of the court to make confiscation orders under the 2002 Act could be controlled by tactical decisions by the prosecution to not proceed with charging offences committed before the commencement date [11 12].
+The overarching consideration is that it was Parliaments intention that (i) offences committed before the commencement date should not be included in the
+section 156 consideration; and (ii) offences committed after that date which could generate confiscation orders under the Act should be dealt with under section 156.
+It cannot have been intended that a number of post 2003 offences should be removed from the scope of the 2002 Act simply because the defendant was convicted of an associated offence before the commencement date [17].
+Further, the court should seek to avoid an interpretation of the statute which would produce an absurd result.
+Here, the consequence of the 2002 Act being disapplied to a wide range of offences committed after the commencement date and requiring them to be dealt with under earlier legislation is undesirable.
+Contemporary cases would have to be dealt with according to standards and rules which have been replaced [24 26].
+It is not necessary to read words into the statute in order to permit applications for confiscation orders for offences committed after the commencement date [38].
+Lord Hughes agrees with Lord Kerr that it is not necessary to read words into the statute to achieve this result [68].
+The issue depends on whether the offences referred to in section 156(2) are all offences or only those on which reliance is placed for the purposes of asking the court to make a confiscation order.
+He considers the differences between the earlier legislation and the 2002 Act and concludes that the key question is whether the construction proposed by the Crown would result in any unfairness to the defendants.
+If it would or might, then the principle that penal statutes must be construed strictly in favour of those penalised would carry considerable weight.
+There is nothing unfair in saying that the appellants should bear the confiscation consequences of post March 2003 offences, as required by the 2002 Act, unless those consequences differ in some way from what they would have been if they had not committed the earlier offences, which they do not [70 83].
+There is no unfairness caused by any of the differences between the earlier regime and the regime under the 2002 Act where the 2002 Act regime is applied only to post commencement offences, because the rules which are being applied are those which were in force, and publicly known, at the time the offences generating the confiscation order were committed [93 94].
+It is not improper for there to be an element of election by the Crown in relation to which offences are relied on for the confiscation process [97].
+Although the question of the Court of Appeals power to put an error right by substituting an order did not arise given the conclusion, Lord Hughes notes that it ought not to be assumed that there is no such power [108 114].
+Lord Kerr agrees with this analysis [55].
+Lord Reed dissents from the conclusion of the majority and would have allowed the appeal.
+His view is that the language of the provisions cannot be interpreted as excluding offences which the prosecution had elected to leave out of account for the purpose of assessing the benefit obtained by the defendant [128].
diff --git a/UK-Abs/train-data/summary/uksc-2016-0157.txt b/UK-Abs/train-data/summary/uksc-2016-0157.txt
new file mode 100644
index 0000000000000000000000000000000000000000..63f4806dbb36d4701aa3a4b7a7b190204c32ce59
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2016-0157.txt
@@ -0,0 +1,36 @@
+The Appellant is a strategic development planning authority for the Aberdeen region.
+In February 2013, it produced draft supplementary planning guidance in support of its proposed strategic development plan for its area.
+This guidance allowed for a Strategic Transport Fund (the Fund) to deliver infrastructure needed because of proposed development in four strategic growth areas.
+In substance, the guidance required developers to enter into planning obligations under the Town and Country Planning (Scotland) Act 1997 (the 1997 Act) with the Appellant to make financial contributions to the Fund.
+Such contributions were to be pooled and spent on required infrastructure.
+The Respondent property developer objected to the draft supplementary planning guidance.
+It sought removal of reference to the Fund from the proposed strategic development plan on the basis that it was contrary to Scottish Government guidance on planning obligations (The Circular).
+The Respondent asserted that the contribution it was required to pay to the Fund was disproportionate to the infrastructure demands created by its development.
+In the meantime, the Respondent voluntarily entered into a planning obligation under s75 of the 1997 Act to contribute to the Fund in terms of the draft supplementary guidance but on the basis that no contributions would be paid if the guidance was found to be invalid.
+The Appellant adopted the supplementary guidance after making an amendment advised by the Scottish Ministers to the effect that the use of any planning obligation should follow the advice in the Circular.
+As adopted, the supplementary guidance listed the cumulative infrastructure requirements identified by the cumulative transport appraisal (CTA) for the area.
+These requirements had been revised following criticism by the Reporter appointed by the Scottish Ministers that it had not been demonstrated that there was a clear and direct relationship between the development contributing to the Fund and the infrastructure which would be delivered.
+Upon appeal by the Respondent, the Inner House of the Court of Session quashed the supplementary guidance on the basis that, notwithstanding the amendments made thereto, the obligation to contribute to the pooled Fund breached the Circular and such a planning obligation must fairly and reasonably relate to the permitted development.
+The Appellant appealed to the UKSC and argued, amongst other things, that the policy tests in the Circular were not part of the legal tests for the validity of a planning obligation.
+The Supreme Court unanimously dismisses the Appellants appeal.
+Lord Hodge gives the lead judgment with which the other Justices agree.
+An approved strategic development plan is of central importance to planning decisions under the 1997 Act [25].
+Supplementary guidance deals with the provision of further information in respect of proposals set out in the plan [24].
+Planning obligations in terms of s75 of the 1997 Act do not necessarily need to relate to a particular permitted development on the burdened land.
+A planning obligation may be entered into in circumstances which are not connected with any planning application [38].
+For instance, a planning authority may contract for the payment of financial contributions towards certain infrastructure necessitated by the cumulative effect of various developments, so long as the land which is subject to the obligation contributes to that cumulative effect [41].
+However, it is not lawful to restrict the commencement of development by planning obligation until the developer undertakes to make a financial contribution towards infrastructure which is unconnected with the development of the site [42 43].
+If such a planning obligation were lawful, an authority could use an application to extract benefits which are unrelated to the proposed development [44].
+Moreover, it is not lawful to require contributions towards such infrastructure in a planning obligation which does not restrict the development of the site by means of a negative suspensive condition, as such a planning obligation would neither restrict nor regulate the development of the site in terms of s75 [43].
+In determining a planning application, the authority must take into consideration material provisions of the development plan and other material considerations.
+For a planning obligation to be material it must have some connection with the proposed development which is not trivial [47 48].
+If a planning obligation, which is otherwise irrelevant to the application, is sought as a policy in the development plan, the policy seeking to impose such an obligation is an irrelevant consideration for determination of the planning application [51].
+In the instant case, the scheme established in the supplementary guidance involved the pooling of payments which were not tied to a particular development [56].
+The opt out did not make the scheme voluntary in any real sense [57].
+The 1997 Act does not allow for such a scheme.
+The supplementary guidance and the planning obligations which it promotes are unlawful for two reasons [60].
+Firstly, the use of the developers contribution to the pooled Fund on infrastructure with which its development has no more than a trivial connection means that the planning obligation is not imposed for a purpose related to the development and use of the burdened site as required by s75, [61] nor did the planning obligation restrict or regulate the development within the meaning of s75 [62].
+Secondly, the planning obligation entered into by the Respondent was an irrelevant consideration in terms of a planning application because there was only a trivial connection between the development and the infrastructure intervention(s) which the proposed contribution would fund.
+An authority is not empowered to require a developer to enter into an obligation which would be irrelevant to an application for permission as a precondition of the grant of that permission [63].
+The scheme was not unlawful because it did not comply with the Circular.
+The Circular was simply a material consideration which was required to be taken into account but not necessarily followed [53 54; 60].
diff --git a/UK-Abs/train-data/summary/uksc-2016-0204.txt b/UK-Abs/train-data/summary/uksc-2016-0204.txt
new file mode 100644
index 0000000000000000000000000000000000000000..4d54ce6d20d92cb1eb9f9866027b6fecd54e42dc
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2016-0204.txt
@@ -0,0 +1,49 @@
+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].
diff --git a/UK-Abs/train-data/summary/uksc-2017-0016.txt b/UK-Abs/train-data/summary/uksc-2017-0016.txt
new file mode 100644
index 0000000000000000000000000000000000000000..306e54f58468b0bd992cb9e86ff0163a63de06a4
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2017-0016.txt
@@ -0,0 +1,51 @@
+This appeal concerns the legislation which governs the Construction Industry Scheme (the CIS), which was introduced in order to counter widespread tax evasion by sub contractors in the construction industry.
+It requires certain contractors to deduct and pay over to Her Majestys Revenue and Customs (HMRC) a proportion of all payments made to the sub contractor in respect of labour under a sub contract.
+The amount deducted and paid over is, in due course, allowed as a credit against the sub contractors liability to HMRC.
+However, sub contractors with statutory certificates of gross payment registration are exempt from those requirements.
+That tends to make any sub contractor holding a certificate a more attractive party for a contractor to deal with.
+It also improves the sub contractors cash flow by enabling the sub contractor to receive the contract price without deduction.
+The appellant company (the company) is a family run business of water well engineers, started in 1972.
+In around 1984 the company registered for gross payment under the CIS.
+It then underwent regular reviews to determine whether it ought to retain its registration certificate.
+It first failed a review in July 2009, when its registration was cancelled.
+The same occurred in June 2010.
+On both occasions the registration was reinstated by HMRC following an appeal.
+Between August 2010 and March 2011 the company was late in making PAYE payments on seven occasions.
+The delays were generally of a few days, but on one occasion of at least 118 days.
+It is accepted that the company failed to comply with the requirements of the CIS without reasonable excuse.
+At that time the company had about 25 employees and an annual turnover of about 4.4m, much of it derived from contracts with a small number of major customers.
+A further review followed.
+On 30 May 2011 HMRC, acting under section 66(1) of the Finance Act 2004, cancelled the companys registration.
+In doing so, HMRC took no account of the consequences for the companys business.
+The companys appealed to the First tier Tribunal (FTT) which accepted the companys evidence that the cancellation, once it took effect, would have had a seriously detrimental impact on the company.
+The FTT allowed the companys appeal, holding that HMRC had been wrong not to take account of the likely impact on the companys business.
+However, that decision was overturned by the Upper Tribunal with which the Court of Appeal agreed.
+The company now appeals to the Supreme Court.
+The Supreme Court unanimously dismisses the appeal.
+Lord Carnwath gives the judgment, with which Lord Mance, Lord Sumption, Lord Lloyd Jones and Lord Briggs agree.
+The statutory requirements for registration for gross payment are highly prescriptive.
+They are contained in the Finance Act 2004.
+They include a requirement that the applicant for registration complied, within the previous 12 months, with various tax obligations subject to an exception for non compliance with reasonable excuse.
+Section 66(1) of the Act provides that the Board of Inland Revenue may at any time make a determination cancelling a persons registration for gross payment where certain conditions are satisfied.
+The word may imports an element of discretion.
+The dispute is as to the scope of that discretion [5 8].
+The company makes two arguments.
+First, that the discretion under section 66 is unfettered in its terms, which do not exclude consideration of the consequences of cancellation for the company.
+The company argues that, without any indication to the contrary, the impact on the company must be a relevant consideration [16 17].
+Second, the company relies on right to protection of property under Article 1 of the First Protocol to the European Convention on Human Rights (A1/P1).
+It argues that cancellation clearly involves an interference with the possessions represented by (at least) the sub contractors entitlement to the full contract price or the bundle of rights inherent in registration [18].
+A1/P1 provides: Every natural or legal person is entitled to the peaceful enjoyment of his possessions No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
+The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
+HMRC generally adopt the reasoning of the Court of Appeal and do not accept that cancellation involves an interference with a possession for the purposes of A1/P1.
+Alternatively, HMRC rely on the wide margin afforded to Member States under the Convention in fiscal matters [19 20].
+The Supreme Court holds that the Court of Appeal was correct.
+Apart from the Convention, the companys first argument, that the discretion under section 66 is unfettered, overlooks the basic principle that any statutory discretion must be exercised consistently with the objects and scope of the statutory scheme.
+The discretion does not extend to consideration of matters which relate neither to the requirements for registration for gross payment, nor to the objective of securing compliance with those requirements.
+The scheme is highly prescriptive, setting out narrowly defined conditions for registration in the first place, including a record of tax compliance.
+The same conditions are brought into the cancellation procedure by section 66.
+The mere fact that the cancellation power is discretionary rather than mandatory is unsurprising.
+Some element of flexibility allows for cases where the failure is limited, temporary and poses no practical threat to the objectives of the CIS.
+It is wholly inconsistent with that tightly drawn scheme for there to be implied a general dispensing power [21 22].
+Turning to A1/P1, there is force in the argument of HMRC that, even if the rights conferred by registration amount to possessions, they cannot extend beyond the limits set by the legislation by which they are created.
+However, it is unnecessary to decide the appeal on that basis, since the Court of Appeal correctly held that any interference with A1/P1 rights was proportionate.
+Once it is accepted that the statute does not in itself require the consideration of the impact on the individual taxpayer, there is nothing in A1/P1 which would justify the court in reading in such a requirement [23].
diff --git a/UK-Abs/train-data/summary/uksc-2017-0053.txt b/UK-Abs/train-data/summary/uksc-2017-0053.txt
new file mode 100644
index 0000000000000000000000000000000000000000..ae7ae805fd02b4b13dae67cfef88facf2741ae33
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2017-0053.txt
@@ -0,0 +1,27 @@
+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].
diff --git a/UK-Abs/train-data/summary/uksc-2017-0074.txt b/UK-Abs/train-data/summary/uksc-2017-0074.txt
new file mode 100644
index 0000000000000000000000000000000000000000..c5f71fac04608b35276afceabb51b4c97b69a713
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2017-0074.txt
@@ -0,0 +1,32 @@
+The issue in this appeal is when the notice period begins to run, if an employee is dismissed on written notice posted to his home address.
+If the answer is not specified in the contract of employment, is it (i) when the letter would have been delivered in the ordinary course of post; (ii) when it was in fact delivered to that address; or (iii) when the letter comes to the attention of the employee and he has either read it or had a reasonable opportunity to do so? The respondent, Mrs Haywood, was dismissed by reason of redundancy by her employer, the appellant NHS Trust (the Trust).
+Her contract of employment provided for termination on a minimum period of notice of 12 weeks but not how such notice should be given.
+On 20 April 2011, the Trust sent a letter giving written notice of termination by recorded delivery to Mrs Haywoods home address.
+The Trust was aware that she was away on holiday.
+The letter was collected from the local sorting office by her father in law on 26 April 2011 and left by him in her house that day.
+She returned from holiday abroad on 27 April 2011 and read the letter.
+On the unusual facts of this case, the date on which the 12 week notice period started to run was highly material.
+If it commenced on 27 April 2011, it expired on 20 July 2011, the date of Mrs Haywoods 50th birthday, and Mrs Haywood would be entitled to claim a non actuarially reduced early retirement pension.
+The High Court and the Court of Appeal (by a majority) upheld Mrs Haywoods case that the notice period only commenced on 27 April 2011.
+The Supreme Court by a majority of three to two (Lord Lloyd Jones and Lord Briggs dissenting) dismisses the Trusts appeal.
+Lady Hale, with whom Lord Wilson and Lady Black agree, gives the main judgment and Lady Black adds a further analysis of the case law.
+The dissenting judgment is given by Lord Briggs, with whom Lord Lloyd Jones agrees.
+In the absence of an express contractual provision, the court had to determine the implied contractual term as to when a notice takes effect.
+The Trust argued that there was a common law rule, principally
+derived from landlord and tenant cases, which provided that notice was given when the letter was delivered to its address.
+Mrs Haywood relied on the approach of the Employment Appeal Tribunal (EAT) in employment cases to support her case that notice only took effect when it had actually been received by the employee and the employee had either read or had a reasonable opportunity of reading it [12].
+Having reviewed the cases relied on by the parties, the majority held that the approach which had been consistently taken by the EAT was correct because: The common law rule in non employment cases was not as clear and universal as suggested.
+Receipt of the notice was always required, and arguably by a person authorised to receive it.
+Even after a statutory presumption of receipt at the address was introduced, this was rebuttable.
+The EAT was an expert tribunal familiar with employment practices, and with the general merits in employment cases.
+Mrs Haywoods contract with the Trust was concluded when the EAT cases were thought to represent the general law.
+There was no reason to suppose that this approach had caused any real difficulties in practice.
+An employer could either make express alternative provision in the contract or ensure notice of termination was received in sufficient time to allow the employment to terminate on a specified day.
+It was important for both employer and employee, even in dismissal on notice cases, to know whether and when the employment had come to an end.
+The rule should be the same as for summary dismissal cases [39].
+Lady Black, agreeing with this conclusion, reviewed the common law cases in further detail to support the finding that that these cases did not have the effect contended for by the Trust [41 75].
+Insofar as any clear principle emerged, it revolved around delivery to the recipients agent, who might be a household servant, professional agent or family member, who would be expected to take in communications for the intended recipient as part of their role [73].
+Lord Briggs, dissenting, would have found that the common law cases had long established a rule embedding an implied term into contracts of employment determinable on notice [78].
+Such contracts were only a sub species of relationship contracts [79].
+The rule for relationship contracts was that written notice of termination was given when the document containing it was duly delivered by hand or post to the address of the intended recipient, regardless of whether either the intended recipient or his agent was there to receive it [81, 100].
+The rule had a sensible and even handed policy objective behind it, creating certainty for both parties and representing a fair allocation of risk [118 121].
diff --git a/UK-Abs/train-data/summary/uksc-2017-0080.txt b/UK-Abs/train-data/summary/uksc-2017-0080.txt
new file mode 100644
index 0000000000000000000000000000000000000000..87269e91adfd1d3c1f8ff782893eb6f7edc6e53c
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2017-0080.txt
@@ -0,0 +1,27 @@
+This is a pre trial appeal in a criminal case.
+The appellants are charged with the offence of entering into funding arrangements connected with terrorism, contrary to section 17 of the Terrorism Act 2000.
+The charges allege that the appellants sent money overseas, or arranged to do so, when they knew or had reasonable cause to suspect that it would, or might, be used for the purposes of terrorism.
+The question which arises on this appeal concerns the correct meaning of the expression has reasonable grounds to suspect in section 17(b) of the Act.
+The appellants argued that it means that the accused must actually suspect, and for reasonable cause, that the money may be used for the purposes of terrorism.
+The Crown, in response, argued that the sections wording means it is sufficient that on the information known to the accused there exists, assessed objectively, reasonable cause to suspect that the money will be put to that use.
+The Court of Appeal accepted the Crowns contention.
+The Supreme Court unanimously dismisses the appeal.
+Lord Hughes gives the sole judgment with which the other justices agree.
+The appellants relied on the well established principle that whenever a statutory section creates a criminal offence but does not refer to the offenders state of mind (mens rea), there is a presumption that to give effect to the will of Parliament, the court must read in words requiring mens rea [8].
+While it is an important principle, it is a principle of statutory construction.
+It does not empower the court to substitute the plain words used by Parliament for a different provision on the grounds that the court would have done so differently by providing for an element, or a greater element, of mens rea [9].
+The presumption must give way to either the plain meaning of the words of the statute, or to other relevant pointers to meaning which clearly demonstrate what was intended.
+The first port of call for any issue of construction is the words of the Act [12].
+The words of section 17(b) of the Act suggest an objective test for mens rea at first sight.
+Thus, it is very difficult to see this statutory provision as one which is silent as to the intent required for the commission of the offence [13].
+An offence of providing funding towards terrorism first appeared on the statute books in 1976 and was re enacted in identical form in 1984.
+Those sections required proof either of knowledge or of actual suspicion.
+However, the Prevention of Terrorism Act 1989 made a change and introduced the words knowing or having reasonable cause to suspect in place of knowing or suspecting.
+These changes were deliberate.
+They are inexplicable unless it was the Parliamentary intention to widen the scope of the offences to include those who had, objectively assessed, reasonable cause to suspect that the money might be put to terrorist use.
+The change can only have been intended to remove the requirement for proof of actual suspicion.
+The court cannot ignore this clear Parliamentary decision [18 19].
+It would be an error to suppose that the form of offence creating words in section 17(b) create an offence of strict liability.
+Unlike an offence of strict liability, the accuseds state of mind is relevant for section 17(b).
+The requirement of an objectively assessed cause for suspicion focuses attention on what information the accused had.
+The requirement is satisfied when, on the information available to the accused, a reasonable person would suspect that the money might be used for terrorism [24].
diff --git a/UK-Abs/train-data/summary/uksc-2017-0195.txt b/UK-Abs/train-data/summary/uksc-2017-0195.txt
new file mode 100644
index 0000000000000000000000000000000000000000..06a1dd1cf45c4c8aa1efd4ae253e817e5a4aabf1
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2017-0195.txt
@@ -0,0 +1,50 @@
+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]
diff --git a/UK-Abs/train-data/summary/uksc-2017-0202.txt b/UK-Abs/train-data/summary/uksc-2017-0202.txt
new file mode 100644
index 0000000000000000000000000000000000000000..7f983faad31d007ea731ab9893812b2acf5c7fba
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2017-0202.txt
@@ -0,0 +1,35 @@
+The question in this appeal is whether a court order must always be obtained before clinically assisted nutrition and hydration (CANH), which is keeping a person with a prolonged disorder of consciousness (PDOC) alive, can be withdrawn, or whether, in some circumstances, this can occur without court involvement.
+In June 2017 Mr Y, an active man in his fifties, suffered a cardiac arrest which consequently led to extensive brain damage due to lack of oxygen.
+He never regained consciousness following the cardiac arrest and required CANH to keep him alive.
+His treating physician concluded that, even if he regained consciousness, he would have profound disability and would be dependent on others to care for him for his remining life.
+A second opinion from a consultant and professor in Neurological Rehabilitation
+considered Mr Y to be in a vegetative state without prospect of improvement.
+Mrs Y and their children believed that he would not wish to be kept alive given the doctors views about his prognosis.
+The clinical team and the family agreed that it would be in Mr Ys best interests for CANH to be withdrawn, which would result in his death within two to three weeks.
+On 1 November 2017, the NHS Trust sought a declaration in the High Court that it was not mandatory to seek the courts approval for the withdrawal of CANH from a patient with PDOC when the clinical team and the patients family agreed that it was not in the patients best interests to continue treatment and that no civil or criminal liability would result if CANH were withdrawn.
+The High Court granted a declaration that it was not mandatory to seek court approval for withdrawal of CANH from Mr Y where the clinical team and Mr Ys family were in agreement that continued treatment was not in his best interests.
+The judge granted permission to appeal directly to the Supreme Court.
+In the intervening period Mr Y died but the Supreme Court determined that the appeal should go ahead because of the general importance of the issues raised by the case.
+The Supreme Court unanimously dismisses the appeal.
+Lady Black gives the sole judgment with which the other Justices agree.
+It has not been established that the common law or the European Convention on Human Rights (ECHR) give rise to the mandatory requirement to involve the court to decide upon the best interest of every patient with PDOC before CANH can be withdrawn [126].
+The fundamental question facing a doctor, or a court, considering treatment of a patient who is not able to make his or her own decision is not whether it is lawful to withdraw or withhold treatment, but whether it is lawful to give it.
+It is lawful to give treatment only if it is in the patients best interests.
+If a doctor carries out treatment in the reasonable belief that it will be in the patients best interests, he or she will be entitled to the protection from liability conferred by section 5 of the Mental Capacity Act (MCA) 2005 [92].
+The starting point on whether there is a common law requirement to seek a court order is the House of Lords decision in Airedale NHS Trust v Bland [1993] A.C. 789.
+However, there can be no question of the House of Lords in that case having imposed a legal requirement that in all cases of patients in a persistent vegetative state an application must be made to court before CANH can be withdrawn.
+Instead they recommended as a matter of good practice that reference be made to the court [93 94].
+Therefore, when the MCA 2005 came into force in 2007 there was no universal requirement, at common law, to apply for a declaration prior to withdrawing CANH and the MCA itself did not single out any class of decisions which must always be placed before the court [95].
+The MCA 2005 Code of Practice (the Code) does speak of applications to court in cases such as the present but does so in a contradictory fashion on the issue of whether such applications are mandatory [97].
+Further, no requirement to apply to court can be found in the post MCA 2005 case law [98].
+The ECHR does not generate a need for an equivalent provision to be introduced [102].
+The European Court of Human Rights (ECtHR) decision in Lambert v France 62 EHRR 2 and subsequent cases have repeatedly set out factors relevant to the administering or withdrawing of medical treatment.
+These are factors which the UK has complied with.
+First, the UK has a regulatory framework compatible with the requirements of article 2 in the form of the combined effect of the MCA 2005, the Code, and professional guidance, particularly that of the GMC [105].
+Second, the MCA 2005 requires doctors to take into account the patients express wishes and those of people close to him, as well as the opinions of other medical personnel [108].
+Third, the opportunity to involve the court is available whether or not a dispute is apparent [109].
+Lambert and subsequent decisions show that the ECtHR does not regard it as problematic, in principle, that a decision to remove CANH from a patient with PDOC should be made by a doctor without obligatory court involvement [110].
+CANH is medical treatment and it is not easy to explain, therefore, why it should be treated differently from other forms of life sustaining treatment [116].
+In any event, it is difficult to accept that one can delineate patients with PDOC from other patients in such a way as to justify judicial involvement being required for the PDOC patients but not the others.
+In all cases, the medical team make their treatment decisions by determining what is in the patients best interest [119].
+If it transpires that the way forward is finely balanced, there is a difference of medical opinion, or a lack of agreement from persons with an interest in the patients welfare, a court application can and should be made [125].
diff --git a/UK-Abs/train-data/summary/uksc-2017-0211.txt b/UK-Abs/train-data/summary/uksc-2017-0211.txt
new file mode 100644
index 0000000000000000000000000000000000000000..9fe1fc8f2b6a11d49fad8a20e2037ee5dafe495d
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2017-0211.txt
@@ -0,0 +1,41 @@
+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].
diff --git a/UK-Abs/train-data/summary/uksc-2017-0215.txt b/UK-Abs/train-data/summary/uksc-2017-0215.txt
new file mode 100644
index 0000000000000000000000000000000000000000..11492f87bdfc7306f71dbdd2de703659b364e177
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2017-0215.txt
@@ -0,0 +1,34 @@
+This appeal concerns the assessment of claimants for personal independence payment (PIP), a non means tested allowance paid to certain people with long term health problems or disability.
+The appeals focus is on one of the markers used to determine the extent to which the ability of claimants to carry out daily living activities is limited by their physical or mental condition.
+The particular activity in question is engaging with other people face to face and the issue is the interpretation of descriptor 9c found in Part 2 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 (the Regulations).
+The Regulations are made under Part 4 of the Welfare Reform Act 2012 (the Act).
+Descriptor 9c reads: Needs social support to be able to engage with other people.
+The respondent is a man in his forties.
+He made a claim for PIP in February 2015.
+His entitlement to the daily living component of the allowance at the standard rate depended on whether he satisfied descriptor 9c, which would give him 4 points towards the required score of at least 8 points overall under regulation 5.
+His claim was rejected on the ground that his ability to engage with other people face to face only satisfied descriptor 9b, Needs prompting to be able to engage with other people, which gave him a score of 2 points.
+The respondent appealed unsuccessfully to the First tier Tribunal (FTT).
+His appeal to the Upper Tribunal was allowed on the ground that the FTT had given an inadequate explanation of why he satisfied descriptor 9b rather than 9c.
+The case was remitted to the FTT for rehearing and directions were given as to the interpretation of descriptor 9c.
+The appellant Secretary of State appealed to the Inner House of the Court of Session in relation to the directions.
+The Inner House refused the appeal while modifying some of the directions.
+The Secretary of State appealed to the Supreme Court.
+Before the Supreme Court the Secretary of State accepted that the social support required for descriptor 9c may consist of prompting, as with 9b, but for this descriptor the support had to be from a person trained or experienced in assisting people to engage in social situations.
+Whilst he accepted that a friend or family member who knows the claimant well could have the relevant training or experience, he argued that a need for help simply from someone familiar or trusted was not sufficient (the qualitative issue).
+He also argued that the social support needed to be contemporaneous with the face to face engagement, ie that the person offering the social support had to be physically present (the timing issue).
+The Supreme Court unanimously allows the appeal in the limited sense of interpreting the relevant legal provisions differently from the Inner House.
+The respondents claim will now return to the FTT for determination in accordance with this interpretation.
+The judgment is given by Lady Black.
+The qualitative issue The activity of engaging with people face to face can take many differing forms, as can the form of the assistance that is needed for the claimants engagement to occur [29 30].
+A narrow and technical approach to the words social support in descriptor 9c is unwarranted; it is inconsistent with the governments objective of creating a benefit which is easier to understand and reaches those who need extra support to live independently and participate in everyday life [32].
+What brings the claimant within descriptor 9c rather than 9b is that, to be able to engage with others, he or she needs the support to come from someone trained or experienced in assisting people to engage in social situations i.e. the support will only be effective if delivered by someone who is not just familiar with the claimant, but also trained/experienced in assisting engagement in social situations [34 35].
+Careful scrutiny of the facts will sometimes be necessary in order to determine whether descriptor 9c applies, including probing the information provided by sensitive questions [38] and, where support is already being provided by family/friends, exploring how they have come to know what to do, whether that help could come from any well meaning friend or family member, and what additional help (if any) is required [37].
+The timing issue It is helpful to consider examples of practical ways in which a person can be helped to engage face to face with others.
+For instance, preparation prior to the engagement might avoid overwhelming psychological distress, and, during the engagement, a supporter might be able to give the claimant reminders, direct the conversation away from topics that trigger anxiety, give private signs of reassurance, or recognise the need to remove the claimant from the meeting [40].
+The Secretary of States insistence on it being necessary for the supporter to be present at the engagement would stand in the way of means of support which do not involve physical presence and would be likely to impede attempts to improve the claimants abilities to handle matters in future with less support [41].
+It would be undesirable to construe descriptor 9c in a way that runs counter to these considerations, and there is nothing in the wording of the descriptor to require that.
+The word needs indicates a continuing need, to be found as respects every time over the 12 month period made relevant by s 81 of the Act, but it does not, of itself, exclude the possibility of assistance outside the confines of the engagement [43] and nor is there anything else to dictate such an interpretation [45].
+Given that social support is likely to take many different forms, depending on the individual needs of the claimant, it is undesirable to attempt to prescribe in the abstract which other forms of support will be sufficient.
+It will be a question of fact and degree [46], addressed with close attention to the words of the descriptor and the required period condition [48].
+The Inner Houses acceptance that a temporal or causal link was required between the help given and the activity should not be adopted.
+It is difficult to see how support which is linked in time to a face to face engagement but has no causal link to what occurs could have any relevance [47].
diff --git a/UK-Abs/train-data/summary/uksc-2018-0013.txt b/UK-Abs/train-data/summary/uksc-2018-0013.txt
new file mode 100644
index 0000000000000000000000000000000000000000..ae4db952b7e407216a13d5eda866932c1f322921
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2018-0013.txt
@@ -0,0 +1,48 @@
+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].
diff --git a/UK-Abs/train-data/summary/uksc-2018-0040.txt b/UK-Abs/train-data/summary/uksc-2018-0040.txt
new file mode 100644
index 0000000000000000000000000000000000000000..ad1910f1f1a1d6b398ea54e917c211be6df699b6
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2018-0040.txt
@@ -0,0 +1,46 @@
+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].
diff --git a/UK-Abs/train-data/summary/uksc-2018-0091.txt b/UK-Abs/train-data/summary/uksc-2018-0091.txt
new file mode 100644
index 0000000000000000000000000000000000000000..421f20b4c3c992a90cb71f27eb11b0c3baa44493
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2018-0091.txt
@@ -0,0 +1,24 @@
+This pre trial appeal concerns a point of pure statutory construction.
+The Respondents face charges of knowingly making false declarations in relation to election expenses, or aiding and abetting or encouraging or assisting such offences.
+The parties asked the judge to determine the point on a preparatory hearing, pursuant to Part III of the Criminal Procedure and Investigations Act 1996.
+The question of law certified by the Court of Appeal (Criminal Division) as a point of law of general public importance is as follows: Do property, goods, services or facilities transferred to or provided for the use or benefit of a candidate free of charge or at a discount (as identified in section 90C(1)(a) of the Representation of the People Act 1983 (as amended)) only fall to be declared as election expenses if they have been authorised by the candidate, his election agent or someone authorised by either or both of them?
+The Court of Appeal held that section 90C of the Representation of the People Act 1983 (the RPA 1983) requires authorisation of expenses before the need for them to be declared arises.
+The Supreme Court unanimously allows the appeal, answering the certified question in the negative.
+Lord Hughes gives the judgment with which the other justices agree.
+The concept of authorisation of expenses is frequently resorted to in the legislation [16].
+The critical question is whether this concept also governs the notional expenditure provision in section 90C of RPA 1983 [17].
+Section 90C asks, by subsections (1)(a) and (b), three questions about the notional expenditure it is considering.
+If the answer to all of these questions is yes, then subsection (2) stipulates that the expenditure shall be treated as incurred by the candidate for the purposes of the Act.
+The questions, which equally apply to goods, property or facilities, are: 1.
+Were the services provided for the use or benefit of the candidate either free of charge or at a discount of more than 10% of commercial value; 2.
+Were they made use of by or on behalf of the candidate; and 3.
+If the services had actually been paid for (expenses actually incurred) by or on behalf of the candidate, would those expenses be election expenses incurred by or on his behalf (and thus subject to the various controls imposed by the Act)? [18] There is no room in these questions for an additional requirement that the provision of services must have been authorised by the candidate or his election agent, or by someone authorised by either of them.
+The test is whether the goods, property or facilities are used by, or on behalf of, the candidate.
+This differs from the test in section 90ZA(4) of RPA 1983 for expenses actually incurred which does require authorisation.
+The ambit of the use test is not resolved by the question asked and will depend on the facts as they emerge in each case. [19, 25].
+Section 90ZA(1) confirms this analysis by the express provision that the definition of election expenses therein is subject to section 90C.
+Rather than 90C incorporating the words of 90ZA(4), it imports an additional category of expenditure to be included in 90ZA(4), namely expenses notionally incurred by the candidate [20].
+The plain reading of the Act cannot be displaced by possibly inconvenient or even newly recognised consequences [27 28].
+The point that the candidate and election agent risk the commission of criminal offences is well made.
+The more serious offence of knowingly making false declarations requires a dishonest state of mind.
+While the strict liability offence is different, section 86 of the Act provides for relief from sanctions where the offence has been committed despite good faith [29].
diff --git a/UK-Abs/train-data/summary/uksc-2018-0092.txt b/UK-Abs/train-data/summary/uksc-2018-0092.txt
new file mode 100644
index 0000000000000000000000000000000000000000..abd13e80201748b0805332065704b7df72604c3c
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2018-0092.txt
@@ -0,0 +1,39 @@
+This appeal concerns a challenge to the sale by an insolvent Scottish company, Grampian MacLennans Distribution Services Ltd (Grampian), of its principal asset and place of business (the Property) at a value lower than could have been achieved on the open market.
+The parties dispute the proper interpretation of adequate consideration in section 242(4)(b) of the Insolvency Act 1986 (the 1986 Act) and whether the court has any discretion as to the remedy it may give under that section.
+In March 2013, chartered surveyors valued the Property at 1.2m on the open market and at 800,000 on a restricted marketing period of 180 days.
+The following year, Grampian fell into financial difficulty and was sold to Mr Quinn.
+At this time, Grampian owed more than 500,000 to each of National Westminster Bank plc (NatWest), which held a standard security over the Property, and HM Revenue and Customs (HMRC).
+Shortly after Mr Quinns takeover, Grampians cash flow collapsed and its monthly loan repayments to NatWest fell into arrears.
+Mr Quinn sold off Grampians trucks and entered into discussions to sell the Property with a businessman he had known for over 30 years, Mr Gaffney.
+Mr Gaffney negotiated on behalf of his family company, Carnbroe Estates Ltd (Carnbroe), to acquire the Property at a reduced price, citing the risk of repossession by NatWest and the fact that the buildings needed repairs and refurbishment.
+Mr Quinn and Mr Gaffney eventually agreed that Carnbroe would buy the Property for 550,000 in a quick, off market sale.
+Grampian transferred the Property to Carnbroe on 24 July 2014.
+However, instead of paying the agreed consideration to Grampian, Carnbroe repaid the NatWest loan directly to obtain a discharge of the standard security.
+Carnbroe then obtained a loan from the Bank of Scotland plc, which was secured against the Property.
+The sale of the Property and repayment of NatWests loan left Grampians other principal creditor, HMRC, unpaid.
+HMRC wrote to Grampian requiring payment of tax that was due.
+On Grampians failure to pay, HMRC presented a petition for winding up Grampian.
+The Respondents (Mr MacDonald and Ms Coyne) were appointed as joint liquidators of Grampian and commenced proceedings to challenge the sale.
+At first instance, the Lord Ordinary held that the sale of the Property was made for adequate consideration.
+However, on appeal, the Inner House (the Lord President, Lord Drummond Young and Lord Malcolm) reduced (annulled) the transaction and ordered Carnbroe to transfer the property to the Respondents.
+Carnbroe appealed to the Supreme Court.
+The Supreme Court unanimously allows the appeal only to the extent of remitting the case to the First Division of the Inner House to consider what is the appropriate remedy under section 242(4) of the 1986 Act.
+Lord Hodge gives the sole judgment with which the other Justices agree.
+The Supreme Court holds that the meaning of adequate consideration is to be determined according to an objective test, having regard to the commercial justification of the transaction in all the circumstances and assuming that the parties would be acting in good faith and at arms length [30 32].
+As to the circumstances that would be relevant to this assessment, the Court considers that, unless the insolvent partys financial embarrassment is known in the relevant market, the hypothetical purchaser will not be assumed to have knowledge of it [32].
+Accordingly, it is not relevant that Mr Quinn advised Mr Gaffney of Grampians financial difficulties.
+However, the fact of Grampians insolvency is, itself, a relevant circumstance, in that an insolvent vendor would be expected to manage its assets in such a way as to protect the interests of its creditors [33].
+The objective purpose of the sale is also a relevant circumstance.
+Whilst an off market sale poses the obvious risk of obtaining an inadequate price, the Court recognises that a quick sale may sometimes be in the interest of the creditors, such as when the insolvent party faces liquidity issues and the sale would enable it to trade out of insolvency [34].
+Where there is no prospect that the sale would enable the insolvent company to remain in business, the adequacy of the consideration will depend on whether there is prejudice to the insolvent companys creditors [37].
+This involves comparing the outcomes which would have been available in the circumstances of the insolvency.
+In cases where a full marketing exercise would not have been possible, or where the asset was being sold as part of an informal winding up, the consideration achieved in the sale should not be measured against the open market price but against the price, net of expenses, that would have been obtained by a liquidator of the company, or else by the holder of any security over the asset, assuming their compliance with applicable legal duties [37 39].
+In the present case, the sale of the Property was part of an informal winding up of Grampian.
+As such, the Court considers that there could be no justification for an off market sale at a price so far below market value on the ground of urgency [40].
+Carnbroe has not established that there was adequate consideration as it has not led any evidence to support the view that a sale by NatWest (as the holder of a standard security over the Property), or else by the liquidators, would have been likely to achieve a comparable or lower net price than that which Grampian accepted [42].
+As such, the Inner House was entitled to interfere with the Lord Ordinarys assessment of the adequacy of the consideration.
+As to the appropriate remedy, the liquidators argue that section 242(4) of the 1986 Act requires the courts to annul any transaction with an insolvent company for less than adequate consideration, save where such annulment is impossible.
+However, the Supreme Court considers that such a rule could produce harsh and disproportionate effects, since section 242(b) would capture sales to good faith, arms length purchasers for substantial (if not adequate) consideration [45].
+If such a transaction were reversed, the good faith purchaser would be forced to compete as an unsecured creditor to recover the consideration it had paid, with the insolvent vendors general creditors receiving a windfall [51].
+In a departure from previous decisions of the Inner House, the Supreme Court concludes that the statutory words of section 242(4) are broad enough to allow the courts, in appropriate cases, to devise a remedy to protect the good faith purchaser [53, 63, 65].
+In the absence of agreed facts as to the impact of reversing the present transaction, the Court remits the case to the Inner House to determine whether it is appropriate to qualify the remedy it has given to take account of all or part of the consideration paid by Carnbroe for the purchase [69].
diff --git a/UK-Abs/train-data/summary/uksc-2018-0100.txt b/UK-Abs/train-data/summary/uksc-2018-0100.txt
new file mode 100644
index 0000000000000000000000000000000000000000..8d9fb83d3793eb833fb7bda3bbf44b45f3f3d31b
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2018-0100.txt
@@ -0,0 +1,63 @@
+This appeal concerns the circumstances in which an arbitrator in an international arbitration may appear to be biased.
+It raises important questions about the duty of impartiality and obligation of arbitrators to make disclosure.
+The appeal relates to an arbitration under a liability insurance policy which arose out of damage caused by an explosion and fire on the Deepwater Horizon drilling rig in the Gulf of Mexico.
+BP Exploration and Production Inc. (BP) was the lessee of the Deepwater Horizon rig.
+Transocean Holdings LLC (Transocean) owned the rig and provided crew and drilling teams to BP.
+The appellant, Halliburton Company (Halliburton) provided cementing and well monitoring services to BP.
+Halliburton had entered into a Bermuda Form liability policy with the respondent, Chubb Bermuda Insurance Ltd (Chubb").
+Transocean was also insured with Chubb by a Bermuda Form policy.
+The Deepwater Horizon disaster resulted in numerous claims against BP, Transocean and Halliburton.
+Following a trial in the US in which judgment was given apportioning blame between the parties, Halliburton settled the claims against it.
+Halliburton then sought to claim against Chubb under the liability policy.
+Chubb refused to pay contending that Halliburtons settlement was not a reasonable settlement.
+Transocean made a similar claim against Chubb and Chubb likewise contested Transoceans claim.
+The Bermuda Form policies provided for disputes to be resolved by arbitration.
+Halliburton commenced arbitration.
+Halliburton and Chubb each selected one arbitrator but were unable to agree on the appointment of a third arbitrator as chairman.
+As a result, after a contested hearing in the High Court, Mr Rokison, proposed by Chubb to the court, was appointed.
+Subsequently and without Halliburtons knowledge, Mr Rokison accepted appointment as an arbitrator in two separate references also arising from the Deepwater Horizon incident.
+The first appointment was made by Chubb and related to Transoceans claim against Chubb.
+The second was a joint nomination by the parties involved in a claim by Transocean against another insurer.
+On discovering Mr Rokisons appointment in the later references, Halliburton applied to the court under section 24 of the Arbitration Act 1996 to remove Mr Rokison as an arbitrator.
+That application was refused.
+On appeal, the Court of Appeal found that, while Mr Rokison ought to have disclosed his proposed appointment in the subsequent references, an objective observer would not in the circumstances conclude there was a real possibility Mr Rokison was biased.
+The appeal was therefore dismissed.
+Halliburton renews its challenge before the Supreme Court.
+The Supreme Court unanimously dismisses the appeal.
+It holds, for reasons which differ in part from courts below, that as at the date of the hearing to remove Mr Rokison, the fair minded and informed observer would not conclude that circumstances existed that gave rise to justifiable doubts about Mr Rokisons impartiality.
+Lord Hodge gives the leading judgment with whom Lord Reed, Lady Black and Lord Lloyd Jones agree.
+Lady Arden gives a concurring judgment.
+The law The duty of impartiality is a core principle of arbitration law [49].
+In English law, the duty applies equally to party appointed arbitrators and independently appointed arbitrators [63].
+In considering an allegation of apparent bias against an arbitrator, the test is whether the fair minded and informed observer would conclude there is a real possibility of bias [52, 55].
+The courts will apply that objective test, having regard to the particular characteristics of international arbitration, including the private nature of most arbitrations [56 68].
+The duty of disclosure is not simply good arbitral practice but is a legal duty in English law.
+It is a component of the arbitrators statutory obligations of fairness and impartiality [78].
+The legal duty of disclosure does not, however, override the arbitrators duty of privacy and confidentiality in English law.
+Where information which needs to be disclosed is subject to a duty of confidentiality, disclosure can only be made if the parties owed confidentiality obligations give their consent.
+Such consent may be express but may also be inferred from the arbitration agreement itself in the context of the custom and practice in the relevant field of arbitration [88 104].
+The arbitrators duty of disclosure is to disclose matters which might reasonably give rise to justifiable doubts as to his or her impartiality [107 116].
+A failure to disclose relevant matters is a factor for the fair minded and informed observer to take into account in assessing whether there is a real possibility of bias[117 118].
+In assessing whether an arbitrator has failed in a duty to make disclosure, the fair minded and informed observer will have regard to the facts and circumstances as at and from the time the duty arose [119 120].
+In contrast, in assessing whether there is a real possibility that an arbitrator is biased, the fair minded and informed observer will have regard to the facts and circumstances known at the time of the hearing to remove the arbitrator [121 123].
+The issues in this appeal There may be circumstances where the acceptance of multiple appointments involving a common party and the same or overlapping subject matter gives rise to an appearance of bias.
+Whether it does so will depend on the facts of the case and, in particular, the customs and practice in the relevant field of arbitration [127 131].
+Where, as in the context of a Bermuda Form arbitration, the circumstances might reasonably give rise to a conclusion that there was a real possibility of bias, the arbitrator is under a legal duty to disclose such appointments unless the parties to arbitration have agreed otherwise [132 136].
+Applying those conclusions to the facts, Mr Rokison was under a legal duty to disclose his appointment in the subsequent reference involving Chubb and Transocean.
+At the time of his appointment, the existence of potentially overlapping arbitrations with only one common party, Chubb, might reasonably have given rise to a real possibility of bias [145].
+In failing to make that disclosure Mr Rokison breached his duty of disclosure [147].
+However, having regard to the circumstances known at the date of the hearing at first instance, it could not be said that the fair minded and informed observer would infer from Mr Rokisons failure to make disclosure that there was a real possibility of bias.
+At the time, it had not been clear that there was a legal
+duty of disclosure.
+Secondly, the Transocean arbitrations had commenced several months after the Halliburton arbitration.
+Thirdly, Mr Rokisons measured response to Halliburtons challenge explained that it was likely the subsequent references would be resolved by a preliminary issue (as they in fact were) and that, if they were not, he would consider resigning from the Transocean arbitrations.
+There was therefore no likelihood of Chubb gaining any advantage by reason of overlapping references.
+Fourthly, there was no question of his having received any secret financial benefit, and, fifthly, there was no basis for inferring any unconscious ill will on his part.
+As a result, Halliburtons appeal fails [149 150].
+Lady Ardens concurring judgment Lady Arden agrees with Lord Hodges judgment but makes a few further points to reinforce or, in some instances, qualify the conclusions reached.
+The duty of disclosure is a secondary obligation arising from the arbitrators primary duty to act fairly and impartially [160].
+Unless the arbitration is one where there is an accepted practice of dispensing with the need to obtain parties consent to further appointments, the arbitrator should proceed on the basis that a proposed further appointment involving a common party and overlapping subject matter is likely to require disclosure of a possible conflict of interest [164].
+The duty of disclosure is rooted in the duty of impartiality but is also an implied (if not express) term of the arbitrators appointment [167].
+The parties can therefore agree to waive any objection to a conflict of interest, but disclosure is only an option if the conflict is one which would not prevent the arbitrator from acting impartially [168, 170].
+Confidentiality is an important and free standing implied term [173 175].
+But, in general, high level disclosure about a proposed appointment in a further arbitration can be made without any breach of confidentiality by naming only the common party (who may be taken to have consented to disclosure) but not the other parties to the arbitration [183 187].
diff --git a/UK-Abs/train-data/summary/uksc-2018-0152.txt b/UK-Abs/train-data/summary/uksc-2018-0152.txt
new file mode 100644
index 0000000000000000000000000000000000000000..abfeb1447aaeb6369332e3085f98d30c1015cb76
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2018-0152.txt
@@ -0,0 +1,38 @@
+The case concerns whether Zipvit, a trader selling vitamins and minerals by mail order, is entitled when accounting for VAT on its sales to make deductions of input VAT (the tax paid by the trader on goods and services purchased in connection with its business, as opposed to output VAT, which is the tax charged to the consumer by the trader on its goods or services) in respect of the price of postal services supplied to it by Royal Mail.
+Under Royal Mails terms and conditions, Zipvit was required to pay the commercial price for the supply plus such amount of VAT (if any) as was chargeable.
+At the time of supply, both Royal Mail and Zipvit understood that the supply was exempt from VAT, so Zipvit was only charged and only paid a sum equal to the commercial price for the supply.
+Royal Mails invoices treated the supplies as exempt.
+However, the Court of Justice of the European Union (the CJEU) subsequently held that such a supply of individually negotiated mail services should in fact have been treated as standard rated for VAT.
+If that had been appreciated at the time of the supplies, Royal Mail would have charged Zipvit VAT and would have accounted for this to HM Revenue and Customs (HMRC).
+The present proceedings are a test case in respect of supplies of services by Royal Mail where the same mistake was made.
+Zipvit now claims that under article 168(a) of the Principal VAT Directive (2006/112/EC) (the Directive) it is entitled to deduct as input VAT the VAT due in respect of these supplies or a VAT element deemed by law to be included in the price paid to Royal Mail for each supply.
+HMRC contend that on the proper interpretation of the Directive: (a) there was no VAT due or paid for the purposes of the Directive; and/or (b) since Zipvit at no point held invoices which showed that VAT was due and its amount, in compliance with article 226(9) and (10) of the Directive, Zipvit is not entitled to recover input tax.
+Zipvit made claims to HMRC for the deduction of input VAT, which were rejected by HMRC.
+Zipvit appealed against HMRCs decision to the First tier Tribunal (Tax Chamber), which dismissed the appeal.
+Zipvit appealed to the Upper Tribunal (Tax Chamber), which dismissed the appeal.
+The Court of Appeal dismissed Zipvits appeal from the Upper Tribunal.
+Zipvit now appeals to the Supreme Court.
+The Supreme Court unanimously decides that the legal position under the Directive is not clear.
+It is common ground that at this stage in the process of the UKs withdrawal from the EU, in a case involving an issue of EU law which is unclear, the Supreme Court is obliged to refer that issue to the CJEU to obtain its advice on the point.
+Therefore, the Supreme Court makes an order for a reference and sets
+out the questions for the CJEU.
+Lord Briggs and Lord Sales give the judgment, with which all other members of the Court agree.
+Zipvit appealed on two issues: first, the due or paid issue, and second, the invoice issue.
+The Court has decided that neither issue can be regarded as acte clair (so obvious as to leave no scope for any reasonable doubt) and that a reference should be made to the CJEU.
+The due or paid issue arises out of article 168(a) of the Directive, which provides that a trader who is a taxable person has an entitlement to deduct from VAT which he is liable to pay the VAT due or paidin respect of supplies to him of goods or services, carried out or to be carried out by another taxable person.
+Zipvit contends that the commercial price it paid Royal Mail for the supplies of postal services must be treated as having contained an element of VAT, even though the invoice purported to say that the services were exempt from VAT.
+Alternatively, even if this embedded element of VAT is not to be regarded as having been paid, it should be regarded as being due [26] [27].
+HMRC contend that there is nothing in the Directive which requires or justifies retrospective re writing of the commercial arrangements between Royal Mail and Zipvit.
+Royal Mail did not issue further invoices to demand payment of VAT, cannot be compelled to issue such further invoices, and has not accounted to HMRC for any VAT in respect of the services.
+HMRC could not take action to compel Royal Mail to account for any VAT in respect of the supply of services.
+As the courts below found, if Zipvit were to succeed it would gain an unmerited financial windfall at the expense of the taxpayer [31] [32].
+On the invoice issue, Zipvit submits that CJEU case law indicates that there is an important difference between the substantive requirements to be satisfied for a claim for input tax and the formal requirements that apply in relation to such a claim.
+The approach is strict for the substantive requirements, but departure from the formal requirements is permissible if alternative satisfactory evidence of the VAT which was paid or is due can be produced.
+Zipvit contends that it has produced alternative satisfactory evidence of the VAT paid, in the form of payment of the embedded VAT [36] [38].
+Against this, HMRC submit that the regime in the Directive requires particular importance to be attached to the requirement of the production of an invoice showing that VAT is due and in what amount.
+A valid claim for the deduction of input tax cannot be made in the absence of a compliant VAT invoice [39] [40].
+The Supreme Court refers four questions to the CJEU.
+The first asks whether, in circumstances like those of Zipvit, the effect of the Directive is that the price actually paid by the trader is to be regarded as the combination of a net chargeable amount plus VAT thereon, thus allowing the trader to claim to deduct input tax under article 168(a) of the Directive in the amount of VAT which was in fact so paid by it in respect of that supply [42(1)].
+The second asks whether, in those same circumstances, the trader can claim to deduct input tax under article 168(a) as VAT which was due in respect of that supply [42(2)].
+The third asks whether, where a tax authority, the supplier, and the trader misinterpret European VAT legislation and treat a taxable supply as exempt, resulting in a non compliant VAT invoice which stated that no VAT was due, the trader is entitled to claim to deduct input tax under article 168(a) [42(3)].
+Finally, in answering the prior three questions, the Court asks whether it is relevant to investigate whether the supplier (Royal Mail) would have a defence to any attempt by the tax authority to issue an assessment requiring it to account for a sum representing VAT in respect of the supply, and whether it is relevant that the trader (Zipvit) knew at the same time as the tax authority and the supplier that the supply was not in fact exempt, and could have offered to pay the VAT due, but omitted to do so [42(4)].
diff --git a/UK-Abs/train-data/summary/uksc-2018-0184.txt b/UK-Abs/train-data/summary/uksc-2018-0184.txt
new file mode 100644
index 0000000000000000000000000000000000000000..b8c88b500f1c8d690e0d3b1435a821a8be00d9f7
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2018-0184.txt
@@ -0,0 +1,33 @@
+Rule 5.4C of the Civil Procedure Rules (CPR) provides that a person who is not a party to proceedings may obtain from the court records copies of a statement of case and judgment or orders made in public, and, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person.
+This appeal concerns the scope of Rule 5.4C, and whether the court has an inherent power to order access to documents for non parties outside this provision.
+Cape Intermediate Holdings Ltd (Cape), a company that was involved in the manufacture and supply of asbestos, was a defendant in a trial in the High Court to claims brought by employers insurers.
+Voluminous documentation was available to the court during the trial.
+After the trial had ended, but before judgment was delivered, the claims were settled.
+The Asbestos Victims Support Groups Forum UK (the Forum), which was not a party to the proceedings, applied to the court under Rule 5.4C for access to all documents used at or disclosed for the trial, including trial bundles and transcripts.
+The Master held that she had jurisdiction either under Rule 5.4C or at common law to grant the order sought.
+The Court of Appeal allowed an appeal by Cape, limiting the disclosure to the Forum to (i) statements of case held by the court pursuant to Rule 5.4C; (ii) provision by Cape of witness statements, expert reports and written submissions, and (iii) ordering that the application for further disclosure be listed before the trial judge or another High Court judge to decide whether any other documents had lost confidentiality and had been read out in court or by the judge, or where inspection by the Forum was necessary to meet the principle of open justice.
+Cape appealed to the Supreme Court, arguing that the disclosure should have been limited to the statements of case held on the court file; that the scope of any inherent jurisdiction of the court was very limited and could only extend to skeleton arguments or written submissions relied on in court; and that the Forum did not have a legitimate interest based on the public interest in open justice in the content of the documents it was seeking.
+The Forum cross appealed on the ground that the Court of Appeal had been wrong to limit the scope of Rule 5.4C in the way that it did.
+The Supreme Court unanimously dismisses the appeal and cross appeal.
+In a judgment of the court, the Supreme Court upholds orders (i) and (ii) of the Court of Appeal and replaces (iii) with an order that the application be listed before the trial judge (or another High Court judge if he is unavailable) to determine whether the court should require Cape to provide a copy of any other document placed
+before the judge and referred to in the course of the trial to the Forum (at the Forums expense) in accordance with the principles laid down in the judgment.
+Rule 5.4C refers to the records of the court.
+The CPR do not define this term or provide what the records of the court are to contain.
+The essence of a record is something which is kept.
+It must therefore refer to documents kept for the courts own purposes, presently at least the claim form and the judgments or orders which resulted, but not every document lodged or held for the time being at court.
+However current practice in record keeping cannot determine the scope of the courts power to order access to materials to non parties, which is informed by the principle of open justice, not the practical requirements of running a justice system [19 24].
+The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state.
+They all have inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before them.
+The extent of any access permitted by the courts rules is not determinative (except where they contain a valid prohibition) [41].
+The principal purposes of the open justice principle are two fold: to hold individual courts and judges to account, and to enable the public to understand how the justice system works and why decisions are taken.
+Now that much more of the argument and evidence is reduced to writing before a hearing it is difficult for non parties to follow what is going on without access to the written material, including documents [42 43].
+The default position is that the public should be allowed access, not only to the parties submissions and arguments, but also to the documents which have been placed before the court and referred to during the hearing, which are not limited to those the judge has been asked to or has said that he has read [44].
+It does not follow, however, that an applicant has a right for access to be granted (save to the extent that the rules grant such a right).
+A non party seeking access must explain why he seeks it and how granting access will advance the open justice principle.
+The court will carry out a fact specific balancing exercise to take account of any countervailing principles, such as the need to protect national security, privacy interests or commercial confidentiality.
+The practicalities and proportionality of granting the request will also be relevant, especially when proceedings are over [45 47].
+In the present appeal and cross appeal, both parties submissions are therefore incorrect.
+The Court of Appeal did have inherent jurisdiction to make the order it did, to support the open justice principle, and it could have made a wider order if it were right to do so.
+The basis for the order is not Rule 5.4C [49].
+There seems no realistic possibility of the judge making a more limited order than the Court of Appeal, so the orders for access already made will stand, while the balance of the application be listed before the trial judge (or another High Court judge if that is not possible) to determine whether the court should require Cape to provide a copy of any other document placed before the judge and referred to in the course of the trial to the Forum, at the Forums expense, in accordance with the principles laid down in the judgment [50].
+By way of postscript, the Supreme Court urges the bodies responsible for framing the court rules in each part of the United Kingdom to give consideration to and consult on the questions of principle and practice raised by this case [51].
diff --git a/UK-Abs/train-data/summary/uksc-2018-0203.txt b/UK-Abs/train-data/summary/uksc-2018-0203.txt
new file mode 100644
index 0000000000000000000000000000000000000000..07faa3231c09d430a874e72a72e5201262151d4e
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2018-0203.txt
@@ -0,0 +1,40 @@
+Gaming duty is an excise duty that is charged in accordance with the provisions of the Finance Act 1997 (the FA) on any premises where dutiable gaming takes place.
+Non negotiable gaming chips and free bet vouchers (collectively referred to as Non Negs for the purposes of this appeal) are promotional tools provided free of charge by some casino operators to selected gamblers to encourage them to gamble in their casinos.
+Non Negs may typically only be used to place bets at the gaming tables for their face value and cannot be used to buy goods or services, nor encashed.
+This appeal is about whether Non Negs should be taken into account as part of the bankers profits for the purposes of computing gaming duty in accordance with section 11(8)(b) read with section 11(10) of the FA.
+Bankers profits are defined by section 11(10) as the value, in money or moneys worth, of the stakes staked with the banker in any such gaming (section 11(10)(a)) less the value of the prizes provided by the banker to those taking part in such gaming otherwise than on behalf of a provider of the premises (section 11(10)(b)).
+The valuation of prizes for the purposes of section 11(10)(b) is governed by section 11(10A) of the FA which incorporates by reference, with any necessary modifications, certain provisions of the Betting and Gaming Duties Act 1981 (the BGDA).
+From October 2008 until September 2012, London Clubs Management (LCM) included the face value of all the Non Negs played by gamblers and retained by its casinos in the calculation of its bankers profits for the purposes of computing its liability for gaming duty.
+It subsequently considered that this approach was incorrect and that it had overpaid gaming duty by over 1.97 million.
+Her Majestys Revenue and Customs (HMRC) rejected LCMs claim for repayment of the alleged overpayment and LCM appealed that decision.
+The First tier Tribunal dismissed LCMs appeal.
+The Upper Tribunal allowed LCMs appeal.
+The Court of Appeal dismissed HMRCs further appeal.
+HMRC appealed to the Supreme Court.
+The Supreme Court unanimously dismisses the appeal.
+The leading judgment is given by Lord Kitchin, with whom Lord Carnwath and Lady Black agree.
+Lady Arden gives a separate judgment, agreeing that the appeal should be dismissed but for materially different reasons.
+Lord Sales gives a separate judgment agreeing with the majority on the decisive issues in the appeal but reaching a different conclusion on a related issue.
+Lord Kitchin holds that Non Negs are neither stakes staked, nor have any value in money or moneys worth within the meaning of section 11(10)(a) of the FA [31 48].
+First, the assessment of the gross gaming yield from any premises requires a focus on the activity of gaming and not the provision of other goods or services [36].
+Second, the assessment required by section 11(10) must be carried out from the bankers perspective, for it is the bankers profits which must be brought into account in calculating the gross gaming yield [37].
+Third, the reference to money or moneys worth in section 11(10)(a) emphasises that it is the real world value of the stakes in the hands of the banker which matters [38].
+A gambler who plays with cash chips in a casino is not staking the chips as such but the money those chips represent, which the gambler has deposited with the casino [31 35].
+That is not the case when a gambler places a bet using a Non Neg, which essentially amounts to a free bet.
+Therefore, a Non Neg holds no real world value to the casino when a gambler loses it in a bet, save that it eliminates the chance that the casino may have to pay out the winnings corresponding to that bet.
+However, that does not impart a value, in money or moneys worth to the Non Neg, nor mean that it is a stake staked within the meaning of section 11(10)(a) of the FA [44].
+Lord Sales agrees with Lord Kitchins reasoning in this regard and provides further reasons in support of the conclusion [88 92].
+Lady Arden adopts different reasoning for dismissing the appeal [61 78].
+She holds that the value of a stake for the purposes of section 11(10)(a) is what a person would pay for it in the open market [62].
+The objective valuation of the stake means that it can be taken into account at an appropriate value if it has generated gaming activity, which is what gaming duty is charged upon [70].
+A Non Neg is a stake for the purposes of assessing the bankers profits under section 11(10)(a) of the FA [75].
+However, the appeal fails on the facts of this case as no evidence was adduced to support any objective valuation [68].
+The Supreme Court also considers the related issue of what value, if any, should be given to Non Negs for the purposes of section 11(10)(b) of the FA.
+Lord Kitchin expresses the view that, as with section 11(10)(a), it is the real world cost to the banker of providing the prizes that must be brought into account for the purposes of assessing the value of the prizes provided by the banker, subject to the relevant provisions of the BDGA [38].
+Under the BGDA, the cost to the banker of awarding a voucher as a prize is taken to be its face value if, among other things, it may be used in place of money as whole or partial payment for benefits of a specified kind obtained from a specified person.
+Non Negs do not satisfy this condition and must therefore be treated as having no value for the purposes of section 11(10)(b) of the FA [54].
+Lord Kitchin is confirmed in his views by the consideration that the result is a coherent scheme for the treatment of Non Negs, whether used by gamblers to place bets or when returned to gamblers as prizes [56].
+Lord Sales reaches a different conclusion from the majority in this regard.
+When a Non Neg is awarded as a prize, it represents a real cost to the banker which ought to be brought into account [93].
+A Non Neg given as a prize satisfies the relevant conditions under the BDGA 1981, such that it should normally be treated as having its face value for the purposes of section 11(10)(b) of the FA [95 104].
+Lady Arden agrees with Lord Saless conclusion in this regard [82 84].
diff --git a/UK-Abs/train-data/summary/uksc-2018-0214.txt b/UK-Abs/train-data/summary/uksc-2018-0214.txt
new file mode 100644
index 0000000000000000000000000000000000000000..2700968bb2e388cb6c1c877930a26fc3d41d3769
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2018-0214.txt
@@ -0,0 +1,88 @@
+There are two appeals before the Supreme Court, both of which raise issues that are important to the international market in telecommunications.
+The appeals concern actions for infringement of UK patents said to be essential to the implementation of international standards for mobile telephony, such that it is not possible to make, sell, use or operate mobile phones and other equipment that is compliant with the standards without infringing the patents.
+Patents of this kind are called Standard Essential Patents (SEPs).
+The international standards in question are those set by the European Telecommunications Standards Institute (ETSI) for 2G (GSM), 3G (UMTS) and 4G (LTE).
+ETSI has over 800 members from 66 countries across five continents, and is recognised as the standard setting organisation in the European Union telecommunications sector.
+Amongst other things, it produces the technical standards needed to achieve a large unified European market for telecommunications, so that mobile phones and other telecommunications equipment can be used internationally.
+Once a standard has been adopted, there is a risk that owners of SEPs could disrupt the international telecommunications market by refusing to license their inventions or by charging excessively high royalties for their use.
+ETSI therefore requires its members to declare any patents which might be used in a telecommunications industry standard.
+Under its IPR Policy, ETSI then requires the SEP owner to give an irrevocable undertaking to license their patented technology on terms that are fair, reasonable and non discriminatory (FRAND).
+This gives those implementing the standards access to the technology protected by SEPs, while also providing the SEP owners with a fair reward for the use of their SEPs.
+The first appeal (the Unwired appeal) concerns an action brought by Unwired against Huawei for infringement of five UK patents which Unwired claimed to be SEPs.
+The SEPs in issue form part of a worldwide patent portfolio, which Unwired acquired from Ericsson.
+Unwireds business is licensing patents to companies who make and sell telecommunications equipment.
+Ericsson had previously licensed the relevant SEPs to Huawei, but the licence expired in 2012.
+In 2015 and 2016, three technical trials were held in which two of the SEPs were found to be both valid and essential.
+Two other SEPs were found to be invalid.
+Huawei has also been held to be infringing one or more of Unwireds SEPs in Germany, and its challenge to two of Unwireds patents in China has not succeeded.
+In the subsequent non technical trial, the judge held that Unwireds undertaking to license its SEPs on FRAND terms was justiciable and enforceable in the English courts.
+He also held that an implementer who refused to take a licence on terms which the court held to be FRAND exposed itself to an injunction for infringing a UK patent.
+In the circumstances, willing and reasonable parties would agree on a global license, which was the FRAND licence for a licensor with Unwireds patent portfolio and an implementer with almost global sales like Huawei.
+The judge went on to determine the royalty rates and other licence terms that he considered to be FRAND.
+The second appeal (the Conversant appeal) concerns an action brought by Conversant against Huawei and ZTE for infringement of four of its UK patents.
+These form part of a portfolio of about 2,000 patents and patent applications, covering 40 countries, which Conversant acquired from Nokia in 2011.
+Conversant argues that the portfolio includes 28 patent families which are SEPs.
+Like Unwired, Conversant is an intellectual property licensing company which licenses patents for royalty income.
+Huawei and ZTE applied for an order dismissing Conversants claims on the basis that the English courts did not have jurisdiction to determine the validity of foreign patents or, in the alternative, for a stay of proceedings on the ground that the English courts were not the appropriate forum for trying the case.
+The trial judge dismissed both applications.
+He held that the English courts had jurisdiction to enforce the undertaking made under ETSIs IPR Policy and to determine the terms of a FRAND licence.
+This did not intrude on the jurisdiction of foreign courts in relation to the validity or infringement of foreign patents, because the terms of any licenses determined by the English courts could be adjusted to reflect relevant rulings of foreign courts.
+The Court of Appeal upheld the trial judges orders in both the Unwired appeal and the Conversant appeal.
+Huawei and ZTE now appeal to the Supreme Court.
+The Supreme Court unanimously dismisses both appeals.
+The full Court gives the judgment, which confirms that the contractual arrangements ETSI has created under its IPR Policy give the English courts jurisdiction to determine the terms of a global license of a multi national patent portfolio.
+The appeals raise five issues, all of which are important to the international market in telecommunications [1].
+Issue 1: The jurisdiction issue The jurisdiction issue arises in both appeals.
+The Supreme Court is asked to decide whether the English courts have jurisdiction and may properly exercise a power, without both parties agreement: (a) to grant an injunction to restrain the infringement of a UK patent that is a SEP unless the implementer of the patented invention enters into a global licence of a multi national patent portfolio; and (b) to determine the royalty rates and other terms of such a licence [49].
+The Court finds that the English courts have jurisdiction and may properly exercise these powers.
+Questions as to the validity and infringement of a national patent fall to be determined by the courts of the state which has granted the patent.
+However, the contractual arrangements ETSI has created under its IPR Policy give the English courts jurisdiction to determine the terms of a license of a portfolio of patents which includes foreign patents [58].
+The Court begins by considering Huaweis argument that, properly construed, ETSIs IPR Policy only permits the English courts to determine the terms of a license of UK SEPs and only where those SEPs have already been held by the English courts to be valid and infringed [54].
+The Court rejects this argument on the basis that it runs counter to the aims of the IPR Policy and does not adequately take
+the wider context into account [59 60].
+The Court also rejects Huaweis submission that the IPR Policy prohibits a SEP owner from seeking an injunction from a national court where it establishes that an implementer is infringing its patent.
+Rather, the possibility that a national court might grant an injunction is a necessary part of the balance which the IPR Policy seeks to strike, because it incentivises implementers to negotiate and accept FRAND terms for the use of the SEP owners portfolio [61].
+Huawei argues that there is a clear distinction between the terms that operators might choose to agree voluntarily as part of a commercial negotiation and the terms that can be imposed on them by the courts [53].
+The Court rejects this distinction.
+It finds that the IPR Policy envisages both that the courts may decide whether or not the terms of an offered licence are FRAND and that the courts should look to and draw on commercial practice in the real world when making this assessment [62].
+The Court goes on to disagree with Huaweis submission (at [51]) that the English courts do not have jurisdiction to determine the terms of a licence of disputed (or potentially disputed) foreign patents.
+In the present appeals, the lower courts did not attempt to rule on the validity or infringement of foreign patents, which would have been beyond their jurisdiction.
+Instead, they looked to the industry practice of taking a license of a portfolio of patents and construed ETSIs IPR Policy as promoting that behaviour [63].
+If an implementer is concerned about the validity and infringement of particularly significant patents in a portfolio, it could seek to reserve the right to challenge those patents and to require that the royalties payable under the licence should be reduced if the challenge is successful [64 65].
+The Court also disagrees with Huaweis submission (at [52]) that the approach of the English courts is out of step with that of foreign courts [66].
+It finds that the trial judges approach in the Unwired appeal is consistent with several judgments in other jurisdictions, which contemplate that, in an appropriate case, the courts would determine the terms of a global FRAND licence [67 84].
+The Court also dismisses Huaweis argument (at [55]) that it is improper for an English court to exclude Huaweis products from the UK market by exercising a discretion to grant an injunction in respect of an infringement of a SEP [85 90].
+Issue 2: The suitable forum issue The suitable forum issue arises in the Conversant appeal only.
+It has two limbs.
+The first limb asks whether the High Court should have: (a) set aside service of Huawei and ZTE out of jurisdiction; and (b) permanently stayed the proceedings as against the English subsidiaries of Huawei and ZTE on the basis that China was a more suitable forum for hearing the dispute than England [92].
+The suitable forum (or forum conveniens) doctrine requires the English court to decide whether it or a suggested foreign court with jurisdiction would be the more suitable forum for determining the dispute between the parties [94].
+Huawei and ZTE argue that the Chinese courts would be a more suitable forum for determining their dispute with Conversant.
+However, the Court holds that this argument must fail because the Chinese courts do not currently have the jurisdiction needed to determine the terms of a global FRAND licence, at least, without all parties agreement that they should do so.
+In contrast, the English court has jurisdiction to do this [96 97].
+The second limb, which the Court labels case management, is whether the English proceedings should be stayed temporarily until the Chinese proceedings challenging the validity of Conversants Chinese patents have been concluded [92].
+The Court finds that the Court of Appeal was right to refuse any case management solution [103 104].
+Issue 3: The non discrimination issue The non discrimination issue arises in the Unwired appeal and relates to the requirement that license terms must be non discriminatory.
+Huawei argues that the non discrimination limb of the FRAND undertaking is hard edged, which means that like situations must be treated alike and different situations differently.
+SEP owners like Unwired must therefore grant the same or similar terms to all licensees, unless it can be shown that there are objective reasons for treating them differently.
+Accordingly, Unwired should have offered Huawei a licence with a worldwide royalty rate which was as favourable as those it had previously agreed with Samsung [105 106].
+The Court holds that Unwired had not breached the non discrimination limb of the FRAND undertaking [112].
+ETSIs IPR Policy requires SEP owners, like Unwired, to make licenses available on fair, reasonable and non discriminatory terms and conditions.
+This is a single, composite obligation, not three distinct obligations that the licence terms should be fair, and separately, reasonable, and separately, non discriminatory [113].
+The non discriminatory part of the undertaking indicates that, to qualify as FRAND, a single royalty price list should be available to all market participants.
+This must be based on the market value of the patent portfolio, without adjustment for the characteristics of individual licensees [114].
+However, there is no requirement for SEP owners to grant licences on terms equivalent to the most favourable licence terms to all similarly situated licensees.
+Indeed, ETSI previously rejected proposals to include a most favourable licence term of this kind in the FRAND undertaking [116 119].
+Issue 4: The competition issue In the Unwired appeal, Huawei argues that Unwireds claim for an injunction should be regarded as an abuse of its dominant position, contrary to Article 102 of the Treaty on the Functioning of the European Union.
+This is because Unwired has failed to comply with the guidance given by the Court of Justice of the European Union in Huawei v ZTE (Case C 170/13), since it did not make a FRAND licence offer before issuing proceedings for injunctive relief.
+Huawei argues that, as a result, Unwireds remedy should have been limited to damages [128 129].
+The Court considers Article 102 [131], Huawei v ZTE [132 143], the facts of the present case [144 145] and the decisions of the trial judge and the Court of Appeal [146 148].
+It confirms that bringing an action for a prohibitory injunction without notice or prior consultation with the alleged infringer will infringe Article 102 [150].
+However, the nature of the notice or consultation required will depend on the circumstances of the case: there is no mandatory requirement to follow the protocol set out in Huawei v ZTE.
+On the facts, what mattered was that Unwired had shown itself to be willing to grant a licence to Huawei on whatever terms the court decided were FRAND.
+Unwired had not therefore behaved abusively [151 158].
+Issue 5: The remedies issue In both appeals, Huawei argues that, even if it is infringing Unwired and Conversants SEPs, the court should not have granted an injunction to stop the continuing infringement.
+Instead, the more appropriate and proportionate remedy would be for the court to award the claimants damages, based on the royalties which would reasonably be agreed for a licence of the infringed UK patents [159].
+The Supreme Court rejects this argument.
+It holds that there is no basis on which the Court could properly substitute an award of damages for the injunction granted in the Unwired appeal and upheld by the Court of Appeal [163].
+There is no risk that Unwired or Conversant could use the threat of an injunction as a means of charging exorbitant fees, since they cannot enforce their rights unless they have offered to license their SEPs on terms which the court is satisfied are FRAND [164 165].
+Moreover, an award of damages would not be an adequate substitute for an injunction [166 169].
diff --git a/UK-Abs/train-data/summary/uksc-2018-0218.txt b/UK-Abs/train-data/summary/uksc-2018-0218.txt
new file mode 100644
index 0000000000000000000000000000000000000000..5288a2c5ab898973fb185d7e8d771d7091513748
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2018-0218.txt
@@ -0,0 +1,34 @@
+Customs duty is usually paid around the time goods are imported.
+In some situations, Her Majestys Revenue and Customs (HMRC) may issue a post clearance demand to require payment at a later date.
+This appeal is about the time limits for making such demands under a previous version of the EUs Customs Code, Council Regulation (EEC) No 2913/92 as amended. (The issues in this appeal do not arise under the current version of the Customs Code, Council Regulation (EU) No 952/2013.) FMX imported ten consignments of garlic to the UK in 2003 and 2004.
+It declared the garlic came from Cambodia and claimed exemption from import duties under the EUs Generalised System of Preferences.
+In 2007, following an investigation, the European Anti Fraud Office (OLAF) concluded that the garlic was actually from China.
+If the garlic was Chinese, FMX would be liable for import duties and anti dumping duties totalling 503,577.63.
+In March 2011, HMRC issued a post clearance demand for 503,577.63 on the basis that the garlic originated in China.
+FMX argued it was too late to issue demands due to a three year time limit set out in article 221(3) of the old Customs Code.
+HMRC relied on article 221(4) which provides that, where the debt arises from activity which is liable to give rise to criminal court proceedings, the amount may, under the conditions set out in the provisions in force, be communicated to the debtor after the expiry of the three year period.
+The First tier Tribunal accepted the false import declarations were liable to give rise to criminal proceedings for the purposes of article 221(4) even though FMX was not involved in the underlying fraud.
+However, it held that HMRC could not rely on article 221(4) because the UK had no provisions in force extending the three year time limit.
+The Upper Tribunal disagreed and accepted HMRCs argument.
+It held that article 221(4) of the old Customs Code automatically displaces the three year time limit in cases involving criminality, even if the relevant member state has not enacted provisions which provide an alternative time limit.
+The Court of Appeal reinstated the First tier Tribunals decision, considering the Upper Tribunals approach violated the EU law principle of legal certainty and would expose taxpayers to stale demands without any time limit.
+HMRC appealed to the Supreme Court.
+The issue before the Supreme Court is (in summary) whether HMRC can rely on article 221(4) to displace the normal three year time limit even though the United Kingdom has not enacted a finite alternative time limit.
+The Supreme Court unanimously allows the appeal, giving judgment in favour of HMRC.
+Lord Briggs gives the main judgment.
+Lady Arden agrees the appeal should be allowed, but for different reasons.
+Article 221(4) states that HMRC may communicate a customs debt after the expiry of the three year period in article 221(3) if the debt results from an act which was liable to give rise to criminal court proceedings.
+Its purpose is to preserve the integrity of the criminal process whilst leaving the conditions (including time limits) for communication of a customs debt to each member state.
+Therefore, the disapplication of the three year time limit is the automatic result of the likelihood of criminal court proceedings.
+It does not require the selection by a member state of a different time limit [31]; [34] [36]; [51] [52].
+The next question is whether this would allow HMRC to issue demands without any time limit, and whether this would breach the fundamental principle of legal certainty in EU law [38].
+The majority considers a number of options suggested by the parties, and by the courts below, to mitigate the risk of late demands: (1) The domestic law doctrines of abuse of process and laches do not assist because they concern the conduct of legal proceedings, not the communication of a customs debt [39]. (2) The Limitation Act 1980 cannot be invoked because this would require the Court to disapply section 37(2)(a) of that Act (which provides that the Act does not apply to customs debts) on the basis that it was inconsistent with EU law.
+There is no real inconsistency with EU law because its requirement for legal certainty is adequately met by the reasonable time principle at (3) below [40] [44]; [46]. (3) There is a strand of EU jurisprudence to the effect that, where the provisions in force appear to allow legal action without any time limit, then the principle of legal certainty requires it to be done within a reasonable time: e.g. Sanders v Commission [2004] ECR II 3315 [18]; [20] [22].
+The majority applies this approach and concludes that HMRC was obliged to issue its post clearance demands within a reasonable time [45].
+On the facts, HMRC did act within a reasonable time [48].
+Since this analysis gives a clear answer to the question how article 221(4) applies where there are no national provisions in force, it is unnecessary to make a reference to the Court of Justice of the European Union [47].
+Lady Arden adopts different reasoning for allowing the appeal.
+She holds that the effect of EU jurisprudence concerning the old Customs Code is that EU law defers to national law and therefore does not require members states to enact a definite time limit [64]; [67].
+She expresses the view that domestic public law may impose a requirement for HMRC to act within a reasonable time which may be enforced by judicial review [66] but rejects the majoritys reliance on EU decisions such as Sanders v Commission on the basis that the old Customs Code leaves the question of time limits to individual member states.
+This may be one of the reasons why article 221(4) has now been revised [67].
+Therefore, the communication of the post clearance demand in the present case was not subject to a time limit [68] [69].
diff --git a/UK-Abs/train-data/summary/uksc-2018-0229.txt b/UK-Abs/train-data/summary/uksc-2018-0229.txt
new file mode 100644
index 0000000000000000000000000000000000000000..590cba5080f40158702daa06779547a7b3be9e6f
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2018-0229.txt
@@ -0,0 +1,44 @@
+These appeals concern whether the High Court of England and Wales has jurisdiction to hear claims to recover sums paid under a settlement agreement relating to the loss of an insured vessel.
+The parties dispute the interpretation of the Brussels Regulation Recast (Regulation (EU) 1215/2012) (the Regulation).
+Article 4 of the Regulation provides that defendants must be sued in the member state where they are domiciled.
+This is subject to article 7(2), which provides that, in matters relating to tort, delict or quasi delict, a defendant may be sued in the place where the relevant harmful event occurred.
+Article 7(2) is, in turn, subject to section 3 of the Regulation, which provides (in article 14) that, in matters relating to insurance, an insurer may only bring proceedings in the courts of the member state where the defendant is domiciled.
+Aspen Underwriting Ltd and others (the Insurers) insured the Atlantik Confidence (the Vessel) under an insurance policy (the Policy), which valued the Vessel at $22m.
+The Policy had an exclusive jurisdiction clause in favour of the courts of England and Wales.
+Credit Europe NV, a bank which is domiciled in the Netherlands (the Bank), funded the re financing of the Vessel.
+In exchange, the Bank took a mortgage of the Vessel and an assignment of the Policy.
+The assignment identified the Bank as the sole loss payee under the Policy.
+After the Vessel sank, the Bank (at the request of the Owners) issued a letter to the Insurers, authorising them to pay any claims relating to the loss of the Vessel to a nominated company, Willis Ltd (the Letter of Authority).
+For the next several months, the Insurers engaged in settlement discussions with the owners and managers of the Vessel (the Owners).
+The Bank was not involved in those discussions.
+Eventually, the Insurers concluded a settlement agreement with the Owners and made a payment of $22m to Willis Ltd. Three years later, in an action not involving the Insurers, the Admiralty Court held that the Owners had deliberately sunk the Vessel.
+Following this judgment, the Insurers began legal proceedings in the High Court against the Owners and the Bank, seeking to set aside the settlement agreement and recover the sums paid under it, either in restitution or as damages for alleged misrepresentations by the Owners and the Bank.
+The Bank challenged the jurisdiction of the High Court to hear the Insurers claims against it.
+In two first instance judgments, Mr Justice Teare held that the Bank was not bound by the exclusive jurisdiction clause in the Policy but nor could it rely on section 3 of the Regulation, since it was not the weaker party in its relations with the Insurers.
+He found that the High Court had jurisdiction to hear the damages claims under article 7(2) of the Regulation but not the restitution claims, since these were not matters relating to tort, delict or quasi delict.
+The Court of Appeal affirmed Teare Js decisions.
+The Insurers and the Bank each appealed to the Supreme Court.
+The Supreme Court unanimously dismisses the Insurers appeal and allows the Banks appeal, declaring that the High Court does not have jurisdiction over any of the Insurers claims against the Bank.
+Lord Hodge gives the sole judgment with which the other Justices agree.
+The Supreme Court affirms the findings of Teare J and the Court of Appeal that the Bank is not bound by the exclusive jurisdiction clause in the Policy [23].
+Under EU law, a jurisdiction agreement will only bind a party if there is actual consensus between the parties which is clearly and precisely demonstrated [24].
+Although not a party to the Policy, EU law recognises that the Bank may be taken to have consented to the jurisdiction clause if, as a matter of national law, it became a successor to the Owners under the Policy [25].
+As an equitable assignee, the Bank did not take on the Owners obligations under the Policy.
+However, nor was it entitled to assert its assigned rights in a way that was inconsistent with the terms of the Policy, including the jurisdiction clause [26 28].
+In fact, the Bank had not asserted its rights under the Policy at all: it left the settlement negotiations to the Owners and its Letter of Authority merely facilitated that settlement [29].
+Not being a party to the Policy, it is not required to submit to the jurisdiction of the English courts in an action brought by the Insurers [30].
+The Supreme Court finds that the Insurers claims against the Bank are matters relating to insurance within the meaning of section 3 of the Regulation [41].
+The Supreme Court notes that the title of section 3 is drafted in broader language than other sections of the Regulation, which refer to individual contracts [35].
+It is also significant that the scheme of section 3 is concerned with the rights not only of parties to an insurance contract but also of beneficiaries and injured parties, who will typically be non parties [36].
+The recitals to the Regulation do not operate to narrow the scope of section 3 [37].
+Whereas EU case law indicates that articles derogating from the general rule in article 4 should be interpreted strictly, article 14 operates to reinforce article 4 and so need not be read narrowly [38].
+Even if section 3 were to apply only to claims based on a breach of an individual insurance contract, the insurance fraud alleged by the Insurers would inevitably entail a breach of the Policy [40].
+The Supreme Court holds that there is no weaker party exception to the protection of article 14 [43].
+Article 14 protects certain categories of person because they are generally the weaker party in a commercial negotiation with an insurance company, not because of their individual characteristics [44].
+Whilst recital (18) explains the policy behind section 3, it is the words of article 14 which have legal effect [45].
+Article 14 refers to the policyholder, the insured and the beneficiary without further qualification and derogations from the jurisdictional rules in matters of insurance must be interpreted strictly [46, 57].
+In any case, it would undermine legal certainty if the applicability of section 3 were to depend on a case by case analysis of the relative strength or weakness of contracting parties.
+This is why the Court of Justice of the European Union (CJEU) has treated everyone within the categories identified in article 14 as protected unless the Regulation explicitly provides otherwise [47 49].
+The CJEU only has regard to recital (18) in deciding whether to extend the protections of article 14 to persons who do not fall within the identified categories, not to decide whether a particular policyholder, insured or beneficiary is to be protected [50 56].
+Further, in deciding whether to extend the protections of article 14 in this way, the CJEU seeks to uphold the general rule in article 4 [43].
+As a result of these conclusions, it is not necessary for the Supreme Court to address whether the Insurers restitution claims are matters relating to tort, delict or quasi delict under article 7(2) [61].
diff --git a/UK-Abs/train-data/summary/uksc-2019-0010.txt b/UK-Abs/train-data/summary/uksc-2019-0010.txt
new file mode 100644
index 0000000000000000000000000000000000000000..fe518ea5b9c0994df70915376fa22049eb608f32
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2019-0010.txt
@@ -0,0 +1,46 @@
+This appeal concerns the extent to which a non member state national, who is the parent of a dependent European Union (EU) citizen child, is protected against deportation from the territory of the EU pursuant to the principle in Ruiz Zambrano v Office national de l'emploi (Case C 34/09) [2012] QB 265 (the Zambrano principle, and a person protected pursuant to it a Zambrano carer).
+The issue is whether a Zambrano carer enjoys enhanced protection, such that she can only be deported in exceptional circumstances.
+Ms Robinson is a Jamaican national.
+She was convicted and imprisoned of a serious criminal offence in the UK of dealing in cocaine and subsequently made the subject of a deportation order.
+Prior to her removal, she gave birth to a boy, D who is a British national and an EU citizen.
+Ms Robinson thereafter applied for leave to remain.
+The Secretary of State refused that application.
+That is the decision which is the subject of these proceedings.
+On appeal to the Upper Tribunal, Ms Robinson argued that she had a right to reside in the EU derived under the Zambrano principle from Ds rights as an EU citizen.
+As she was Ds effective carer, her removal would require D to accompany her to Jamaica.
+D would thereby be deprived of the enjoyment of his rights as an EU citizen.
+The Upper Tribunal agreed.
+It held that her protection from deportation was absolute.
+The Secretary of State appealed to the Court of Appeal.
+Before the appeal was heard, the Court of Justice of the EU (the CJEU) delivered judgment in two cases which restricted the extent of the Zambrano principle.
+In S v Secretary of State for the Home Department (Case C 304/14) [2017] QB 558, (CS), it held that in exceptional circumstances a member state may adopt an expulsion measure provided that it is founded on the personal conduct of that third country national, which must constitute a genuine, present and sufficiently serious threat adversely affecting one of the fundamental interests of the society of that member state, and that it is based on consideration of the various interests involved, matters which are for the national court to determine (para 50).
+On that basis, the Court of Appeal allowed the appeal and remitted the case to the Upper Tribunal for redetermination.
+The Court of Appeal held that the phrase exceptional circumstances in CS was not an additional requirement which the state must satisfy, but merely summarised an exception to the general rule that D, an EU citizen, cannot be compelled to leave the territory of the EU.
+Ms Robinson appeals to the Supreme Court contending that the phrase created an additional hurdle to deportation.
+The Supreme Court unanimously dismisses the appeal and holds that the phrase exceptional circumstances does not import an additional hurdle before a Zambrano carer can be deported from the territory of the EU.
+The case is remitted to the Upper Tribunal for redetermination on that basis.
+Lord Stephens gives the judgment, with which all members of the Court agree.
+The Zambrano principle applies in very specific situations where, if a third country (ie non member state) national were not given a right to reside in the EU, a dependent EU citizen would be forced in practice to leave the territory of the EU.
+The EU citizen would then be deprived of the genuine enjoyment of the substance of the rights conferred by EU citizenship [42] [43].
+The right of residence of a Zambrano carer therefore derives from the rights of the dependent EU citizen.
+It flows from article 20 of the Treaty on the Functioning of the EU [1], which establishes EU citizenship.
+The CJEU has recognised the significance of EU citizenship, while confirming that it is subject to limitations [31].
+The United Kingdoms withdrawal from the EU has no impact on this appeal, but the legal principles to be applied may change after 31 December 2020 [30].
+The case law of the CJEU shows that a national court must consider three questions.
+The first question is to determine whether a third country national has a right of residence under the Zambrano principle.
+If a right of residence is established, then the second and third questions address whether the third country national can still be deported.
+Accordingly, the first question is whether there is a relationship of dependency between the third country national and the EU citizen, such that the EU citizen would be forced to accompany the third country national and leave the territory of the EU as a whole [44].
+The second question is whether the third country nationals conduct or offence constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society of the host member state, which may justify, on the ground of protecting the requirements of public policy or public security, an order deporting them from the member state [45].
+The third question arises if there is such a threat and requires the national court to carry out a balancing exercise.
+Against the nature and degree of the threat, it must balance the fundamental rights which the CJEU recognises as relevant in this context: in particular, the right to respect for private and family life in article 7 of the Charter of Fundamental Rights of the European Union.
+In a case involving children, account is to be taken of the childs best interests, and particular attention must be paid to their age, situation in the member state concerned, and the extent to which they are dependent on their parent.
+The national court must ensure that the principle of proportionality is observed [46].
+The CJEU derived these limitations on the Zambrano principle from some of the language in articles 27 and 28 of Parliament and Council Directive 2004/38/EC (the Directive) [32] [37].
+Ms Robinson argues that the CJEUs use of the phrase exceptional circumstances in CS demonstrates that the interests of a child of a Zambrano carer must carry great weight and can only be outweighed by particularly compelling circumstances.
+She relies on the Advocate Generals opinion in CS that deportation of a third country parent could only be justified in exceptional circumstances based on an on imperative reason relating to public security (CS, AG Opinion para 177) [47] [50].
+The Supreme Court holds that the CJEU did not adopt the Advocate Generals proposed test.
+In CS, the CJEU recognised an exception to the Zambrano principle linked, in particular, to upholding the requirements of public policy and safeguarding public security (CS, para 36).
+That is inconsistent with an imperative grounds test [51], derived from article 28 of the Directive, which the CJEU did not incorporate into the exception to the Zambrano principle [36].
+Viewed in context, the CJEUs reference to exceptional circumstances in CS simply explains that, in the prescribed circumstances, an exception can be made to the rule that a Zambrano carer cannot be compelled to leave EU territory [57].
+The CJEU repeated this formulation of the test in Rendn Marn v Administracin del Estado (Case C 165/14) [2017] QB 495 [58] and in KA v Belgische Staat (Case C 82/16) [2018] 3 CMLR 28 [59].
+Not once in any of these cases did the CJEU state that the imperative grounds test applies, or that there is an additional hurdle of exceptional circumstances before a Zambrano carer can be deported [60].
diff --git a/UK-Abs/train-data/summary/uksc-2019-0118.txt b/UK-Abs/train-data/summary/uksc-2019-0118.txt
new file mode 100644
index 0000000000000000000000000000000000000000..b00d01ae100402904de551c2fb2fd9d0c9e42059
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2019-0118.txt
@@ -0,0 +1,53 @@
+This appeal concerns the procedure for collective proceedings in competition damages claims.
+This is the first collective proceedings case of this kind to reach the Supreme Court.
+It addresses important questions about the correct legal requirements for certification of a claim.
+Mr Merricks claim arises out of the European Commissions decision in December 2007 that the appellants (Mastercard) breached competition law by fixing a default interchange fee as part of their payment card schemes between May 1992 and December 2007 (the Commission Decision).
+These payment card schemes allow consumers to purchase goods and services from retailers by card.
+The details of the scheme are at [6 8] and they were also considered by the Supreme Court earlier this year ([2020] UKSC 24).
+Mr Merricks issued a collective proceedings claim form against Mastercard under section 47B(1) of the Competition Act 1998 as amended (the Act).
+In the claim form, Mr Merricks argues that the difference between the interchange fee banks would have paid but for Mastercards breach of competition law, and the interchange fee that they did in fact pay, is an overcharge which retailers paid to their banks and crucially, which retailers then passed onto their customers.
+As a result, he argues that consumers paid higher prices for goods and services than they would otherwise have done.
+Mr Merricks seeks to bring the collective proceedings as the class representative on behalf of all UK resident adult consumers of goods and services purchased in the UK during the infringement period from retailers accepting Mastercard, unless the consumer opts out (the class).
+He seeks an award of damages for the whole class (an aggregate award), rather than damages for the claim of each class member [11 13].
+To proceed with his collective proceedings claim, Mr Merricks needs the Competition Appeal Tribunal (the CAT) to certify the claim by making a Collective Proceedings Order (CPO) under section 47B of the Act.
+To certify a claim, the CAT must be satisfied that two main criteria have been met.
+First, that it is just and reasonable for Mr Merricks to act as the class representative (sections 47B(5)(a) of the Act).
+Second, that the claims are eligible for inclusion in collective proceedings (section 47B(5)(b) of the Act), which means that the claims all raise common issues of fact or law and are suitable to be brought in collective proceedings (section 47B(6) of the Act).
+The CAT refused to make a CPO as the claims failed this second requirement because: (1) the claims were not suitable for an aggregate award of damages per rule 79(2)(f) of the Competition Appeal Tribunal Rules 2015 (the CAT Rules) (the suitability for aggregate damages issue); and (2) Mr Merricks proposed distribution of any award did not satisfy the compensatory principle in common law, which the CAT considered relevant under rule 79(2) of the CAT Rules (the distribution issue).
+The Court of Appeal allowed Mr Merricks appeal, finding that the CAT had made five errors of law.
+Mastercard appealed to the Supreme Court.
+The Supreme Court dismisses Mastercards appeal.
+It agrees with the Court of Appeal that the CATs decision is undermined by error of law and sends Mr Merricks application for a CPO back to the CAT.
+Lord Briggs gives the main judgment, with which Lord Thomas agrees.
+Lord Kerr had agreed that the appeal should be dismissed for the reasons set out in Lord Briggs judgment prior to his retirement on 30 September 2020.
+Three days before the judgment was initially due to be handed down, Lord Kerr sadly died.
+The President of the Supreme Court re constituted the panel under section 43(4) of the Constitutional Reform Act 2005 to consist of Lord Briggs, Lord Sales, Lord Leggatt and Lord Thomas.
+Lord Sales and Lord Leggatt give a combined separate judgment in which they disagree with Lord Briggs reasoning in part.
+They do not dissent as they recognise that they were in the minority and the pure happenstance that Lord Kerr died after completion of the judgments, but just before they could be handed down, should not mean that the case has to be re heard due to an evenly divided panel [82 83].
+Collective proceedings are a special form of civil procedure.
+They are designed to provide access to justice and ensure the vindication of private rights where an ordinary individual civil claim would be inadequate for that purpose.
+This purpose helps interpret the legal requirements of the certification process [45].
+An important element of the background to collective proceedings is that courts frequently have to deal with difficult issues in calculating damages.
+Courts do not deprive an individual claimant of a trial merely because of these quantification issues, provided there is a triable issue that the claimant has suffered more than nominal loss [46 47].
+If these issues would not have prevented an individual consumers claim from proceeding to trial, the CAT should not have stopped the collective proceedings claim at the certification phase [56].
+This fundamental requirement of justice that the court must do its best on the available evidence in relation to damages is the broad axe principle and it applies to competition cases [51].
+Justice requires that damages be quantified in order to vindicate a claimants rights and to ensure that a defendant pays to reflect the wrong done, especially where anti competitive conduct may never otherwise be restrained if individual consumers are unable to bring claims [53 54].
+Another important element is to understand the meaning of suitable, both under section 47B(6) of the Act which requires the claims to be suitable to be brought in collective proceedings, and in rule 79(2)(f) which says that they must be suitable for an aggregate award of damages.
+Suitable means suitable relative to individual proceedings.
+Therefore, the CAT should have asked itself whether the claims were suitable to be brought in collective proceedings as compared to individual proceedings, and suitable for an award of aggregate damages as compared to individual damages [56 57].
+Against this background, the Supreme Court finds that the CAT made five errors of law [64].
+First, it failed to recognise that in addition to overcharge, the merchant pass on issue was also a common issue (as the Court of Appeal had found and which was not appealed to the Supreme Court).
+This should have been a powerful factor in favour of certification (rule 79(2)(a) of the CAT Rules) [66].
+Second, the CAT placed great weight on its decision that the case was not suitable for aggregate damages.
+This is a relevant factor for certification, but it is not a condition [61, 67 69].
+Third, the CAT should have applied a test of relative suitability.
+If the forensic difficulties would have been insufficient to deny a trial to an individual claimant, they should not have been sufficient to deny certification for collective proceedings [70 71].
+Fourth (the most serious error), the CAT was wrong to consider that difficulties with incomplete data and interpreting the data are a good reason to refuse certification.
+Civil courts and tribunals frequently face problems with quantifying loss and the CAT owes a duty to the class to carry out the task in a case of proven breach of statutory duty coupled with a realistically arguable case that some loss was suffered [72 74].
+Fifth, the CAT was wrong to require Mr Merricks proposed method of distributing aggregate damages to take account of the loss suffered by each class member.
+A central purpose of the power to award aggregate damages in collective proceedings is to avoid the need for individual
+assessment of loss and the Act expressly modifies the ordinary requirement for the separate assessment of each claimants loss [58, 77].
+Lord Sales and Lord Leggatt agree with Lord Briggs that the CAT was wrong to refuse certification on the distribution issue [148 150].
+However, they disagree on the suitability for aggregate damages issue.
+They consider that the CAT applied the test to determine the suitability of a class of claims for an aggregate award of damages under section 47C(2) of the Act correctly and thus the CAT was entitled to conclude that the claims were not suitable to be brought in collective proceedings [167 169].
+Their key reasons are at [111, 116 119, 121, 124, 153, 156 166].
diff --git a/UK-Abs/train-data/summary/uksc-2019-0150.txt b/UK-Abs/train-data/summary/uksc-2019-0150.txt
new file mode 100644
index 0000000000000000000000000000000000000000..8084e2fd1194649eaa89cca10661e380093d1b6a
--- /dev/null
+++ b/UK-Abs/train-data/summary/uksc-2019-0150.txt
@@ -0,0 +1,52 @@
+In this appeal, the Supreme Court is asked to decide whether findings of fact made by the General Court of the European Union (the General Court) are binding in subsequent domestic proceedings, under the EU principle of absolute res judicata.
+The appellants (collectively known as Servier), developed and manufactured the drug Perindopril, which is used to treat cardiovascular diseases including high blood pressure.
+Perindopril falls within the class of medicines known as angiotensin converting enzyme inhibitors (ACE inhibitors).
+The respondents, who are the claimants in the domestic proceedings, are the national health authorities of England, Wales, Scotland and Northern Ireland.
+Between May 2011 and September 2012, the claimants issued proceedings in England and Wales which alleged that Servier had: (i) breached article 101 of the Treaty on the Functioning of the European Union (TFEU) and/or Chapter 1 of the Competition Act 1998 (the 1998 Act) by entering into anticompetitive agreements with potential generic manufacturers and/or suppliers; and (ii) abused its dominant position in the market contrary to article 102 TFEU and/or Chapter 2 of the 1998 Act.
+The claimants contend that this allegedly unlawful conduct has delayed the entry of cheaper generic versions of Perindopril onto the UK market, which has, in turn, caused the claimants to suffer substantial financial loss.
+Serviers conduct relating to Perindopril was investigated by the European Commission (the Commission).
+On 9 July 2014, the Commission issued a decision which found that Servier had infringed articles 101 and 102 TFEU.
+Servier appealed to the General Court seeking the annulment of the Commissions decision.
+The General Court judgment upheld all but one of the Commissions findings of infringement of article 101 TFEU, but found that Servier had not infringed article 102 TFEU.
+This was because the relevant product market was not limited to Perindopril but extended to ACE inhibitors generally, and Servier did not have a dominant position in that wider market.
+Both the Commission and Servier have appealed to the Court of Justice of the European Union (CJEU).
+As there are significant overlaps, the domestic proceedings cannot proceed to a final trial until the EU proceedings have been resolved.
+However, in October 2016, Servier was granted permission to plead that the claimants failed to take reasonable steps to encourage switching from the prescription of Perindopril to cheaper generic ACE inhibitors.
+Servier asserts that, even if liability and causation are established, the claimants damages should be reduced or extinguished: (i) because the claimants failed to mitigate their loss; (ii) for contributory negligence; and (iii) because the losses claimed are too remote.
+It was determined that there should be a trial of preliminary issues relating to this argument.
+Servier argued that certain findings in the General Court judgment in particular concerning the extent to which Perindopril can be substituted for other ACE inhibitors are binding on the domestic courts in the preliminary issues trial.
+However, both the High Court and the Court of Appeal held that none of the findings relied on by Servier constituted res judicata for these purposes.
+Servier appealed to the Supreme Court.
+It claimed that the point of law is uncertain, not acte clair, and that the Supreme Court should therefore refer the question to the CJEU under article 267 TFEU.
+The Supreme Court unanimously dismisses Serviers appeal.
+It holds that the General Court findings Servier relies on are not binding in the domestic proceedings, and declines to make a reference to the CJEU.
+Lord Lloyd Jones gives the judgment, with which all members of the Court agree.
+The EU principle of absolute res judicata only applies to judicial decisions which have become definitive, either after all rights of appeal have been exhausted or after the time limits for exercising those appeal rights have expired.
+The General Courts findings are not yet definitive, and may never become definitive, because they may be reversed or rendered redundant in the appeal pending before the CJEU.
+The findings are not, therefore, binding in the domestic proceedings under the EU principle of absolute res judicata.
+A reference to the CJEU is unnecessary to decide the issues in this case [31 32].
+The Court nevertheless sets out its views on the underlying issues of law, in the hope that they might assist at later stages of the domestic proceedings [32].
+The leading authority on the EU principle of absolute res judicata is P&O European Ferries (Vizcaya) SA and Diputacin Foral de Vizcaya v Commission (Joined Cases C 442/03P and C 471/03P) [2006] ECR I 4845 [33 37].
+This explains that, where the EU courts have annulled a Commission decision on substantive as opposed to procedural grounds, the substance of that judgment becomes binding on all the world, not just on the parties.
+This ensures stability of legal relations, because it means that a matter which has been definitely settled by judicial decision cannot be referred to the courts by different parties for reconsideration [38].
+The purpose of the EU principle of absolute res judicata is to prevent the annulling judgment from being called into question in subsequent proceedings.
+This purpose provides the key to the principles scope and applicability [38, 42].
+Absolute res judicata gives dispositive effect to the judgment itself.
+It therefore extends to the essential reasons for the judgment (or ratio decidendi), not just to the outcome set out in the operative part [39 40].
+Only those aspects of the judgment which explain why the Commission decision has been annulled form part of the ratio decidendi, because those are the aspects which must be respected to prevent the annulling judgment from being called into question later on [42].
+The General Court judgment annuls the Commissions finding that Servier had infringed article 102 TFEU, on the basis that the Commission was wrong to conclude that the relevant product market was limited to Perindopril, as opposed to all ACE inhibitors.
+The General Court made a number of findings of fact in this regard, including those Servier relies on.
+Accordingly, if the General Court judgment becomes definitive and it can be shown that the relevant findings were an essential basis of that judgment, it would not be possible to challenge those findings in later proceedings which sought to contradict the General Courts conclusions on the relevant product market within article 102 TFEU [46].
+It is not necessary to treat the General Courts findings as binding in any other legal context.
+If the CJEU upholds the General Court judgment that Servier did not infringe article 102 TFEU, the claimants will no longer pursue their article 102 claim.
+In any case, at present, the domestic proceedings do not concern the relevant product market for the purposes of that article.
+Instead, Servier relies on the General Courts findings to support its defence based on mitigation of loss flowing from alleged anti competitive agreements contrary to article 101 TFEU.
+The General Courts findings cannot be detached from the authority of the annulling judgment and deployed in this wholly different context [48].
+Servier contends that the General Courts findings are binding in any EU law proceedings which raise the same factual issues [47].
+The Supreme Court rejects this argument because it is not supported by the EU or domestic case law [49 60].
+This is not surprising, because it would be inconsistent with the purpose of the principle of absolute res judicata [49].
+Serviers proposed approach also raises practical difficulties because it has no workable defined limits.
+More generally, if it is confined to the context of the consequences of an annulling judgment, the principle of absolute res judicata promotes legal certainty, the effective judicial control of EU institutions and the maintenance of the EU legal order.
+However, once freed from this restriction, it could operate in way that is arbitrary and unjust, binding persons not party to the original dispute in a wholly different legal context in a way which would be inconsistent with the principles of a fair trial [61].
+The claimants claims in the domestic proceedings do not call into question or undermine the General Court judgment or its consequences in any way, nor do they contradict the General Courts decision as to what needs to be done to comply with EU law.
+The Supreme Court is therefore satisfied to the standard of acte clair that the EU principle of absolute res judicata does not apply [62].